ML19340A301
| ML19340A301 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 04/30/1971 |
| From: | Wallig P US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8003050703 | |
| Download: ML19340A301 (4) | |
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UNITED STATES OF AMERICA
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DEFORE THE ATOMIC SAFETY AND LICENSING APPEAL p/,/
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in the Matter of
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Docke t No. 50-346 THE TOLEDO EDISON COMPANY 97
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AND THE CLEVELAND ELECTRIC
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ILLUMINATING COMPANY
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(Davis-Besse Nuclear Pwer Station) )
REPLY OF AEC REGULATORY STAFF TO MOTION OF COALITION FOR SAFE NUCLEAR POWER REQUESTING ORDER STAYING EFFECTIVE DATE OF INITIAL DECISION Intervenor, Coalition for Safe Nuclear Power (Coalition), on filed a notion pursuant to sedtion 10 d. of the April 21.1971, Administrative Procedure Act (5 U.S.C. 705) with the Commission requesting an order to stay the effective date of the construction permit for the Davis-Besse Nuclear Pwer Station as authorized by the Initial Decision of the presiding Atomic Safety and Licensing Board (Board) until a final Judicial determination has been made of the exceptions to the initial Decision filed by the Coalition.
The Coalition states that irreparable damage Will be caused to its The Coalition right of appeal if this order to stay is not granted.
further seeks a ruling on this motion within 14 days.
The regulatory staff notes that although this mo
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and 10 CFR 2.785(b) of the Commission's " Rules of Practice", the Atomic Safety and Licensing Appeal Board is the proper body to consider this motion.
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The Initial Decision of the presiding Board issued on March 23,
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1971, by order of the presiding Board, was immediately effective.
The construction permit authorized by the initial Decision was i
s issued March 24,-1971. On April 8, 1971, the Coalition filed its time it did not exceptions to the Initial Decision, but at that
. request a stay of the ef fective date of the construction permit.
4 It should also be noted that at no time prior to the filing of i
its exceptions did the Coalition request the presiding Board to i
E delay the effectiveness of the initial Decision as provided in f
10 CFR 2.764(a) of the Commission's " Rules of Practice".
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l This motion was filed pursuant to section 10 d. of the APA.
Section 10 d. provides in part that "When an agency finds that 1
i Justice so requires, it may postpone the effective date of action taken by it, pending Judicial review." As a general rule, three factors must be met before the suspension of agency action is i
justified. The movant must demonstrate the likelihood of its success on the pending review, the nature of the irreparable damage It will suffer if the stay is denied, and the extent to which the public interest would be served by a stay. /
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The Coalition only claims that failure to grant this motion would result in irreparable damage to its rights of appeal.
Although Hamlin Testing Laboratory, Inc. v. United States Atomic Energy "2/
Commission, 337 F.2d 221 (1964).
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in any way even such a claim is stated, the Coalition has not Of the six exceptions taken attempted to substantiate the claim.
f by the Coalition, five deal with the Commission's implementation The sixth of the National Environmental Policy Act of 1969 exceptic'n of the Coalition was concerned with tne transportation f
As was pointed out in of radioactive waste from the facility.
4 the regulatory staff's reply brief to these exceptions dated the regulatory staff feels there is no basis for April 21, 1971, i
the exceptions.
l Furthermore, there is nothing In the exceptions themselves to provide a basis for the claim of irreparable damage made by the This is especially so with regard to the transporta-Coa li tion.
since there will be no such trans-tion of radioactive wastes portation until af ter an operating license is issued.
The Coalition also requests that this motion be decided within in the law or the 14 days. The regulatory staff finds no support Commission's regulatloas for this unilateral time limit which the The regulatory Coalition seeks to impose on the Appeal Board.
staff feels this time limit should be disregarded.
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4 Accordingly, for the reasons stated above, the AEC regulatory staff opposes the granting of the Coalition's motion.
Respectfully submitted,
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Paul W. Wallig J'
Counsel for AEC Regulatory Staff Dated at Bethesda, Maryland,
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this 3Qhday of April,1971.
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