ML20031G881
| ML20031G881 | |
| Person / Time | |
|---|---|
| Site: | Farley  |
| Issue date: | 10/22/1981 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | ALABAMA POWER CO., MUNICIPAL ELECTRIC UTILITY ASSOCIATION, ALABAMA |
| References | |
| ALAB-646, CLI-81-27, ISSUANCES-A, NUDOCS 8110260139 | |
| Download: ML20031G881 (5) | |
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UNITED STATES OF AMERICA 00tKETED NUCLEAR REGULATORY COMMISSION
-USNRC CCMMISSIONERS:
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Nunzio J.
Palladino, Chairma b
Victor Gilinsky CFFICE OF SECRETARY 00CKETtHG & SERVICL BRANCH Peter A.
Bradford
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I John F. Ahearne 4
'1 Opp dk Thomas M. Roberts y % g 01981u fd&*'ou j1i
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s In the Matter of
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,, h itjjiTh ALABAMA POWER COMPANY Docket Nos. 50-348A
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50-364A (Joseph M. Farley Nuclear Plant.
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Units i and 2)
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SERVED OCT 221981 1
MEMORANDUM AND ORDER CLI 27
.i The Commission has determined to graat neither Alabama Power Company's (APCO) nor Municipal Electric Utility Association 's
( MEU A ) petition for review of the Atomic Safety and Licensing Appeal Board's decision of June 30, 1981 (ALAB-646) in the captioned ca se.
APCO has sought review of the Appeal Board's decision in the i
United States bourt of Appeals for the Fif th Circuit 1! and on July 22, 1981 moved the Commission to' stay during the pendency of litigation the effectiveness of certain r'emedial antitrust l
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Alabama Power Co. v. Nuclear Regulatory' Commission and i
Uhited St cen, Nos. 80-7547 and 80-7580.
Alabama Electric Cooperative (AEC) and MEUA have intcrvened in that proceeding.
gYt 011o260139 811022 br # )
PDR ADOCK 05000348 M
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conditions imposed on APCO's licenses to operate the Parley nuclear units.
Commission regulations and precedent establash the agency law governing deci; ions on stays and comport with judicial esse lase.
Section 2.788 of the Commission's regulations sets out the following factors to be considered in reviewing a request for a s '. a y :
(1) whether the moving party ha.e made a strong showing that it is likely to prevral on the merits; (2) whether the party will be irreparably injured unless a stay is granted; (3) whether the granting of a stay would harm other parties; and (4) where the public interest lies. 2/
The burden of persuasion on these factors rests on the mcving party. 3/
While no single factor is dispositive, the moct crucial is whether irreparable injury will be incurred by the movant a stay. 4/
absent To.T. net the standard of making a strong showing that it is likely to prevail on the merits of its appeal, the 2/
10 CFR 2.iB8 codifies the criteria established by Vircinia Petroleum enb4.; Ass'n v.
F.P.C.,
295 F.2d 921, 925 (D.C.
Cir. 1958).
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Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 NRC 253, 270 (1978).
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Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAS-437, 6 NRC 630, 632 (1977), citing Pr^ rmian Basin Area Rate Cases, 390 U.S.
747, 773 (1968).
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3 movant must do more than merely establish possible grounds for appeal. EI In addition, an " overwhelming showing of likelihood of success on the merits" is'necessary to obtain a stay where the showing on the other three factors is weak. 6/
Moreover, where an applicant is asking "as a preliminary matter for the full relief to which [it] might be entitled if successful at the conclusion of i
[its) appeal
[it] has a heavy burden indeed to establish a right to it. " 1!
i-On consideration of APCO's motion and'the responses in opposition to it filed by the other four. parties to this proceeding, 8/ the Commission has determined that APCO's request does not merit the grant of the extraordinary relief requested. El 4
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The Toledo Edison Company, et al. (Davis-Besse Nilclear Power l
Station, Units 1, 2 and 3), LBP-77-7, 5 NRC 452 (1977), citing Environmental Defense Fund, Inc. v. Froehlke, 348 F.Supp.
338, 366 (W.D. Mo. 1972). aff'd 477 F.2d 1033 (8th Cir. 1973).
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Florida Power and Light Company (St. Lucie Nuclear Prwer
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Plant, Unit 2 ),. ALAB-4 0 4, 5 NRC 1185, 1186-89 and ALAB-415, l
5 NRC 1435, 1437, (1977).
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Toledo Edison Company (Davis-Besse Nuclear Power Ctation, j
Unit No. 1), ALAB-385, 5 NRC 621, 626 (1977).
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In addition to APCO, MEUA and AEC, parties in the proceeding were'the Department of Justice (Department) and the Nuclear.
E l
Regulatory' Commission staff (Staff).
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APCO requented oral argument on both its stay request and on'its petition for review.
As the Commission perceives no need for oral argument on either of these motions and the question-of whether to holdforal argument is entirely 4
a matter of Commission.discret' ion, APCO's requestsiare denied.
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Accordingly, the application for a stay is denied.
Commissioner Bradford dissents in part from this order.
His.
separate view is attached.
For he Commission S.nEGy,,
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SAMUEL J.
CHILK
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Secretaryoftr{eCommission
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Dated at Washington, D.C.
the 22nd day of Octobar 1981.
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SEPAPATr VIEWS OF C01V11SSIONER BRADFORD I agree with the result of the Commission's decision as to Alabama Power Company.
However, I would take review of that portion of the Appeal Board's decision that finds that fiEUA is not a potential wholesale compe ti tor.
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