ML19329D382

Motion for Reconsideration of Foreclosure of State of Oh Participation in Proposed OL Proceedings.Requests That ASLB Rescind Part of 730710 Order Re State of Oh Potential Role as Intervenor.Certificate of Svc Encl

ML19329D382
Person / Time
Site:	Davis Besse
Issue date:	07/30/1973
From:	Fielding B OHIO, STATE OF
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 8003050974
Download: ML19329D382 (4)

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BEFORE THE UNITED STATES ATOMIC ENERGY COMMISSION i

In the Matter of )

Toledo Edison Company )

and )

Cleveland Electric )

Illuminating Company Docket No. 50-346

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(Davis-Besse Nuclear Power Plant). )

MOTION FOR RECONSIDERATION OF FORECLOSURE OF STATE OF OHIO'S PARTICIPATION IN THE A.E.C. OPERATING PROCEEDINGS On June 29, 1973 the State of Ohio respectfully requested a second extension to consider whether there exist matters which necessitate a petition to intervene in the A.E.C.'s proposed operating license proceedings. The State's reason for deferring such action (and thereby invoking another complete hearing procedure) was, and is, based on the fact that the A.E.C. is still conducting and has not completed the first required stage of construction licensing hearings, under order of The.U'.S.

Court of Appeals for the District of Columbia Circuit. Thus, it is not clear what issues will be raised, aired and determined and what natters of significance to the State'will remain, if any.

The State's recuests for extension of time were an attempt to accormcdata the A.E.C.'s strained efforts to overlap what should be separate and distinct ste,cs in the decision-making process.

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This attempt to accomodate the 30ard and its proceedings, hor-ever, has unfortunately been misconstrued as an invitation to foreclose any meaningful participation in the operating license proceedings by the State. We submit that a State may not be summarily and illegitimately precluded from fully meaningful participation in a proceeding the result of which can so vitally affect its interests.

Basically, the State objects to the Board's attempt by its order of April 19, 1973, (38 F.R. 10661) to force potential in-tervenors to decide whether to enter the operating licence pro-ceedings prior to completion of and A.E.C. determination of the prerequisite construction licensing proceedings. Although the Regulatory Staff and counsel for the utilities have expressed j consent to a period - at least extending to this date - in which

the State may await resolution of the issues, the Board, for reasons best known to itself, has decided to forelcose any possibility of meaningful participation by the State.

The Board refers, in its July 10, 1973, order, to an obligation to

" resolve the issues . . . at the earliest opportunity." Although ringing in pronouncement, we.are at a loss as to the source of this announced rule. More importantly we cannot fathom an attempt to " resolve the issues" before these issues are even defined. The Board asks that the State m"ek c the A.E.C.'s own rules on interven-tion, which quite properly require of intervenors detailed and

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- good faith grounds for intervention. 10 CFR 2.714. Patently, the State-cannot at this time make such representations to 4

the Commission. Although the Board may regard compliance as a matter to be resolved by " shot gun pleading," the State of Ohio cannot take so light an attitude to the A.E.C.'s pleading requirements.

We therefore request that the Board rescind in order of July 10 insofar as the State of Ohio is dismissed as a potential inter-venor. We request further that the Board issue an order that 4

the State need not submit a petition to intervene until such time as the A.E.C. has defined the issues to be considered at an operating license proceeding as reflected in its pending construction licensing proceeding determination. In any event, the State will not seek intervention until such time.

Respectfully submitted,

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BlaineFielding, Assistant Attorney General Room 829-A Seneca Towers 361 East Broad Street Columbus, Ohio 43215 (614) 466-3583

s. .

CERTIFICATE OF SERVICE I hereby certify that I served copies of the foregoing motion on July 30, 1973, by deposit in the United States mail, first class or air mail, postage pre-paid, this 30th day of July, 1973:

John B. Farmakides, Esq., Chairman Donald H. Hauser, Esq.

Atomic Safety and Licensing Corporate Solicitor Board Panel The Cleveland Electric U.S. Atomic Energy Commission Illuminating Company Washington, D. C. 20545 Post Office Box 5000 Cleveland, Ohio 44101 Dr. Cadet H. Hand, Jr. Director Bodega Mnrine Laboratory Atomic Safety suu Licensing University of California Appeal Board P.O. Box 247 .

U.S. Atomic Energy Commission Bodega Bay, California 94923 Nashington, D. C. 20545 Pz . Frederick J. Shon Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S. Atomic Energy Commission U.S. Atomic Energy Commission Washington, D. C. 20545 Washington, D. C. 20545 Mr. Frank W. Karas Gerald Charnoff, Esq. Chief, Public Proceedings Staff Shaw, Pittman, Potts & Trowbridge Office of the Secretary of the 910 17th Street, N. W. Commission Washington, D. C. 20006 U.S. Atomic Energy Commission Washington, D. C. 20545 Russell Z. Baron, Esq.

Brannon, Ticktin, Barron & Mancini Myron Karman, Esq.

930 Keith Building .

Office of the General Counsel Cleveland, Ohio 44115' U.S. Atomic Energy Commission Washington, D. C. 20545

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