ML19340A302
| ML19340A302 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 10/30/1973 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-157, NUDOCS 8003050706 | |
| Download: ML19340A302 (7) | |
Text
. _ _. _ - -. _.. _.
A UNITED STATES OF AMERICA ATOMIC ENERGY COM"ISSION ATOMIC SAFETY AND LICENSIN.G Ar?i%L BOARD Alan S. Rosenthal,, Chairman Dr. John H. Buck, Member Dr. Lawrence R. Quarles, Member
)
In the Matter of
)
l
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i THE TOLEDO EDISON COMPANY,
)
Docket No. 50-346 i.
et. al.
)
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i (Davis-Besse Nuclear Power
)
Station)
)
)
I Messrs. Gerald Charnoff and Jay E. Silberg Washington, D.
C.,
for the applicants,
The Toledo Edison Company and The. Cleveland Electric Illuminating Company.
J Mr. Francis X. Davis for the AEC Regulatory
' Staff.
DECISION i
Octoner 30,f973 L
(ALAB-157)
}
j On March 24, 1971, pursuant to a Licensing Board
}
authorization, a construction permit was issued to The
-Toledo Edison Company and The Cleveland Electric Illumi-nating Company for a pressurized. water reactor-(denominated Davis-Besse Nuclear Power Station)' to be located at a site
}_
in Ottawa County, Ohio, on thr; southwestern shore of l
Lake' Erie.
On January 5, 1973, a notice was published (38 F.R. 904) to..the-effect that a hearing would be held
_(as required by Section B of Appendix D to_10 CFR Part 50) to consider whether: "the construction permit should be 80030.507
N
, continued, modified, terminated or appropriately con-ditioned to protect environmental values".
Following the completion of this hearing, the Licensing Board rendered its initial decision on September 13, 1973, in which it determined that the construction permit could continue but should be amended to include certain specified environmental conditions.
1.
The applicants filed two exceptions to this t
decision.
One of the exceptions, which related to a con-dition imposed on the continuation of the construction i
permit, was subsequently withdrawn.
The'other exception, which the applicants continue to press, 1I is addressed to the denial in part by the Licensing Board of the applicants!
motion to strike several of the contentions advanced by an intervenor, the Coalition for Safe Electric Power.
That motion was filed, and acted upon, in July 1973.
We are declining to consider the exception on its merits.
The initial decision and the record do not disclose that the applicants have suffered any prejudice whatsoever as a result of the Board's ruling on the motion to strike.
Indeed, applicants themselves do not claim that, in its initial decision, the Licensing Board took any ultimate action with regard to the contentions in issue which was adverse to their position or might be detrimental to them
_1/
The regulatory staff has filed a brief in opposition to this exception.
. in the slightest respect.
Rather, we are told by the applicants that the purpose of the exception was simply "to seek clarification" of portions of two of our earlier decisions having a possible bearing upon the validity of their motion.
In essence, then, what applicants appear to be seeking through the vehicle of the exception is an advisory opinion on the correctness of an interlocutory ruling of the Licensing Board which is now wholly academic, at least insofar as this particular proceeding is concerned.
It may be that, unlike federal appellate judges (whose jurisdiction is subject to the limitations inherent in the l
" case or controversy" provisions of Article III, Section 2 of the United States Constitution), we are empowered to entertain, at the behest of a party, a question which
- aroso during the course of proceedings before the trial body but had been stripped of any practical significance by the time the curtain on those proceedings had fallen.
We perceive no good reason, however, why our review function should be so exercised here.
To the contrary, the husbanding of the resources of this Board (among other considerations) mandates that, as a general rule at least, an appeal from a licensing board ruling be considered only if the appellant can establish that, in the final analysis, some discernible
' injury.to it in the proceeding at bar has been sustained as a consequence of the ruling.
This case does not appear.
r r
- t
~ to present any extraordinary circumstances warranting a departure from that general rule.
Accordingly, the excep-i
- tion is being dismissed. 2/
2.
Notwithstanding the dismissal of the applicants' exception, and the absence of exceptions on behalf of any of the parties to the proceeding, we have performed our I
customary review of the initial decision and the record l
upon which it was founded.
That review has disclosed no error necessitating corrective action on the part of this l
Board.
Our conclusion in this regard is based upon the assumption that the Licensing Board intended Condition (2) set forth in Paragraph 86c. of the initial decision $!
o t
I
_2/
In Mississippi Power and Licht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, RAI-73-6. 423, 425 (June 19, 1973) we portended this result by our observation:
Through the vehicle of exceptions to [the initial] decision, the parties will be free to challenge any determination made by the
' Board with. respect to a particular contention
-- so long as that determination had some bearing upon the conclusions expressed, or the result reached, in the decision.
[ Emphasis supplied].
i
_3/
Condition (2) provides (RAI-73-9 691, 713):
The Applicants shall submit during the time of the operating license review proposed environmental. Technical Specifications govern-
'ing the operation of the Davis-Besse' facility.
which assure that the environmental impacts are f
not significantly different from.those described in the FES.
6 I
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em y
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,y
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l embrace the terrestrial, aquatic and marsh monitoring programs discussed, respectively, at pp.'6-2, 6-3 and 12--6 of the Final Environmental Statement.
In any event, 1
l Condition (2) is to be so construed and applied.
- 3. For the foregoing reasons, the applicants ' excep-tion is dismissed and the initial decision is affirmed.
It is so ORDERED.
l l
l FOR THE ATOMIC SAFETY AND LICENSING l
APPEAL BOARD l
l Jn n/* e /
Asu u s
M9rgaret E.
Du Flo Secretary to the Appeal Board i
e
Os
, ' *go.
/6 V ')L UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of
)
)
THE TOLEDO EDISON COMPANY, ET AL.)
Docket No. 50-346
)
(Davis-Besse Nucient Power
)
Station)
)
CERTIFICATE OF SERVICE I hereby certify that copies of DECISION (ALAB-157) dated October 30, 1973 in the captioned matter have been served upon those on the attached Service List by deposit in the United States mail, first class or air mail, this 30th day of October 1973.
Officgcf the Secretiry of the Commission ec:
Mr. Farmakides Mr. Scinto ASLBF E. Goulbourne N. Brown
@ g. Files ASIAB 9
/
V icf p
m~
t UNITED STATES OF AMERICA l
ATOMIC ENERGY COMMISSION In the Matter of
)
)
Docket No. 50-346 THE TOLEDO EDISON COMPANY, ET AL.)
l
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(Davis-Besse Nuclear Power
)
1 Station, Unit 1)
)
SERVICE LIST Leslie Henry, Esq.
l John B. Farmakides, Esq., Chairman Fuller, Sency, !!enry 6 liodye Atomic Safety and Licensing Board I
300 Madison Avenue U. S. Atomic Energy Commission Washington, D. C.
20545 Tcledo, Ohio 43604 Mr. Glenn J. Sampson, Vice President Dr. Cadet H. Hand, Jr., Director The Toledo Edison Company Bodega Marine Laboratory 420 Madison Avenue University of' California Toledo, Ohio 43601 i
l P. O. Box 247 l
Bodega Bay, California 94923 Donald H. Hauser, Esq.
Cleveland Electric Illuminating
.Mr.
Frederick J. Shon Atomic Safety and Licensing Board Company Public Square U. S. Atomic Energy Commission Cleveland, Ohio 44101 Washington, D. C.
20545 Judge Herbert R. Whiting, Director Joseph F. Tuhridy, Esq., Alternate Robert D. Ilart, First As9t. Director l-Chairman Atomic Safety and Licensing Board Department of Law 4100 Cathedral Avenue, N. W.
City Hall Washington, D. C.
20016 Cleveland, Ohio 44114 Reuben Goldberg,Esq.
Dr. Harry Foreman David C. Hjelmfelt, Esq.
l Box 395, Mayo 1700 Pennsylvania Avenue, N. W.
University of Minnesota Minneapolis, Minnesota 55455 Washington, D. C.
20006 t
Mrs. Evelun Stebbins, Chairman Joseph Scinto, Esq.
Coalition for Safe Electric Power Francis X. Davis, Esq.
312 Park Building Regulatory Staff Counsel 140 Public Square U. S. Atomic Energy Commission Washington, D. C.
20545 Cleveland, Ohio 44114 l
Russell Z. Baron, Esq.
Gerald Charnoff,.Esq.
Brannon, Ticktin, Baron and Shaw, Pittman, Potts & Trowbridge Mancini 910 17th Street, N. W.
930 Keith Building Washington, D. C.
20006 Cleveland, Ohio 44115 Director Ida Rupp Public Library Port Clinton, Ohio 43452
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