ML20028B852
| ML20028B852 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 12/03/1982 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| References | |
| ISSUANCES-OLA, NUDOCS 8212070114 | |
| Download: ML20028B852 (5) | |
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4 SERVED DEC 6 BSE UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD op.
s Administrative Judges:
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Thomas S.. Moore, Chairman 06 $92 Dr. John H.
Buck DEC jf Christine N. Kohl 9
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'ch
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In the Matter of
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CONSUMERS POWER COMPANY
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Docket No. 50-155 OLA
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(Spent Fuel Pool (Big Rock Point Nuclear Plant)
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Modification)
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ORDER December 3, 1982 Faced with a spate of partial initial decisions in this 1/
spent fuel pool amendment proceeding,~~ we tolled the time for filing exceptions to any such future decision until service 2/
of the Licensing Board's final one.-~
We took this step on our own initiative after receiving the exceptions of intervenors, Christa-Maria, et al., to the Board's third
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See LBP-82-60, 16 NRC (Aug.
6, 1982); LBP-82-77, 16 NRC (Sept. 14, IFF2); LBP-82-78, 16 NRC (Sept. T57 1982).
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Order of October 4, 1982 (unpublished).
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8212070114 821203 PDR ADOCK 05000155 G
d i partial initial decision.--3/
We were prompted to take this action because the ruling appealed by intervenors did not have any immediate consequences for them and because the Licensing Board indicated it would be issuing additional decisions.
In these circumstances, we saw "no purpose in 4/
embarking upon a piecemeal review of this proceeding."--
We now have before us applicant's motion to permit an immediate appeal from the Licensing Board's latest partial initial decision.
That October 29 decision considers the t'
question whether applicant's proposed modification to the spent fuel pool at Big Rock complies with the regulatory requirements governing the criticality constant (keffective).
--3/
At the same time we deferred briefing of intervenors' appeal until the issuance of the last partial initial decision.
Id.
No exceptions to the Board's two earlier partial initial decisions had been filed; and we had previously postponed our sua sponte review of the Board's first partial initial decision.
See Order of August 31, 1982 (unpublished).
_4/
Order of October 4, 1982 (unpublished) at 1,
. The Licensing Board decided that issue in the' negative and ordered applicant to amend its application within 60 days to comply with the purported regulatory requirements.--5/
The applicant argues the Board's ruling is in error and informs us that it is unwilling to amend its application.
Without immediate appellate review, however, the applicant claims it is faced with an unreasonable dilemma.
According to the applicant, the Board will likely dismiss the amendment application upon applicant's failure to amend, instead of continuing the hearings on the remaining contested issues.
Thus, the applicant must either amend its application or risk delay in the hearings.
Because of the applicant's maintenance schedule and need for additional fuel pool storage, it asserts that any delay in the hearings could unduly prolong an upcoming outage of the facility.
On the other hand, if the applicant may appeal now, it claims the hearings on the remaining issues can proceed in tandem with 6/
the appeal and mitigate any delay.--
--5/
See LBP-82-9 7, 16 NRC (Oct. 29, 1982) (slip op. at 22-24).
_6/
Motion of Consumers Power Company for Immediate Appeal (November 16, 1982) at 3-4.
The applicant indicates that it intends to apply to the Licensing Board for a stay of the Board's October 29 order.
Id. at 1 n.l.
On November 24, 1982 the applicant filed sucE an application accompanied by a motion for leave to file the application beyond the time period prescribed by 10 CFR 8 2.788(a).
The motion does not inform us, however, of what applicant perceives the conse-quences of its failure to secure a stay will be, particularly insofar as this appeal is concerned.
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/ The NRC staff supports the applicant's request while intervenors, John O'Neill, II, and Christa-Maria, et al.,
oppose the motion.
The intervenors assert, inter alia, that the cause of any delay in the hearings (and any subsequent consequences of that delay) lies directly at the applicant's doorstep.
Thus, in their view, no adequate reason exists to hear the applicant's appeal now.
We grant the applicant's motion and waive the terms of our October 4 order insofar as it defers the applicant's appeal from the Licensing Board's October 29 partial initial decision.
Our October 4 order tolled the time for exceptions to future partial initial decisions -- as a matter of administrative convenience -- in an attempt to avoic a string of closely spaced, yet separate appeals arising from this single license amendment proceeding.
No party disputes the applicant's right to appeal.
Only its timing is at issue.
But for.the earlier order entered i
j on our own initiative, however., the applicant would not have had to move for an immediate appeal; it would have been entitled to it. --7/ Our October 4 order simply did not contemplate the type of partial initial decision here at issue -- 1;.e., one i
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See Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 2),
ALAB-632, 13 NRC 91, 93 n.2 (1981); Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Units 1 and 2),
AEAB-301, 2 NRC 853, 854 (1975).
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9 with likely immediate consequences for the appealing party.
For that reason, we grant applicant's motion.
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Briefs shall be filed in accordance with 10 CFR E 2.762. ~
It is so ORDERED.
FOR THE APPEAL BOARD b.C hbm_ -
C.yean' Shoemaker Secretary to the Appeal Board 1
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--8/
In their reply, intervenors Christa-Maria, et al., state that if the motion is granted, they as well intend to appeal the Licensing Board's October 29 decision.
We note, however, that generally only parties adversely affected by the ultimate outcome of a decision may appeal it.
Parties may, however, " defend a result in their favor on any ground presented in the record, including one rejected below."
Public Service Co.
of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-573, 10 NRC 775, 789 (1979).
See also South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-694, 16 NRC (Sept. 28, 1982).
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