ML20052B682
| ML20052B682 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 04/26/1982 |
| From: | Willmore R CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8205030446 | |
| Download: ML20052B682 (6) | |
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UNITED STATES OF AMERICA E
RECEIVED!
-8 NUCLEAR REGULATORY COMMISSION y
M!\\Y 3 1982>
- 82 PR 28 nn 03 g pau mat turuas ~
guz: m:mutal11 DN fore the Atomic Safety and Licensing Board g
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In the Matter of
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THE CLEVELAND ELECTRIC
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Docket Nos. 50-440 s
ILLUMINATING COMPANY, et al.
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50-441
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(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
APPLICANTS' RESPONSE TO MOTION TO STAY DISMISSAL OF ISSUE #2 Applicants have moved to dismiss Issue #2 on the basis of the Commission's recently adopted final financial qualification rule.
See 47 Fed. Reg. 13750 (March 31, 1982).
Intervenor Ohio Citizens for Responsible Energy ( "<OCRE " ) has moved to stay dis-missal until resolution of an as yet unfiled court challenge to the final rule by-an unknown petitioner.
Applicants oppose the motion.
As Applicants have demonstrated in their " Motion To Dismiss Financial Qualification Issue," dated April 7, 1982, it is clear that the Commission's recently promulgated rule preempts any litigation of financial qualification, and, therefore, that Issue
- 2 must be dismissed.
See also Pennsylvania Power & Light Co.
(Susquehanna Steam Electric Station, Units 1 and 2), Initial Decision dated April 12, 1982, slip op. at 76, fn.
OCRE concedes such in its Motion To Stay.
OCRE, nevertheless, moves to stay on the ground that should someone choose to challenge the rule in the courts and should such challenge be successful, OCRE 820 50 3 0 yy4 ggo 3 r
ss t
, " fears that intervenors would face a formidable obstacle in seeking the readmission of the issue."
OCRE does not instruct the Licensing Board or the parties as to what that " formidable obstacle" might be.
OCRE would not, of course, face any " formidable obstacle" to having the issue readmitted if the final rule is chalienged successfully.
The only condition on intervenors would appear to be that intervenors proceed in a timely manner in seeking readmission--hardly a "formidab'le obstacle."
There is no precedent or justification for granting the motion to stay.
If Applicants' motion to dismiss is stayed, a complicated procedural wrinkle will have baen added to this proceeding which, of itself, may become the source of sub-stantial legal maneuvering and delay.
It is unclear, for example, how a stayed contention should.be treated in the licensing hearing, and whether the Licensing Board can enter a final order without disposing of the stayed contention.
Nor is.it obvious when such a stay would become ripe for disposition:
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When the appeal court upholds the rule?
When the Supreme Court denies certiorari?
When the final court challenge--no matter how frivolouse-is denied?
None of these legal questions will need to be adjudicated if the issue is dismissed, and intervenors left to seek readmission should their postulated judicial reversal ever come to pass.
The Motion To Stay Dismissal Of Issue #2 should be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By:
Jay E.
- Silberg, P.
C.
Robert L. Willmore Counsel for Applicants 1800 M Street, N.W.
Washington, D.
C.
20036 DATED:
April 26, 1982
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, et al.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
APPLICANTS' RESPONSE TO MOTION TO STAY DISMISSAL OF ISSUE #2 This is to certify that copies of the foregoing " Applicants' Response To Motion To Stay Dismissal Of Issue #2", were served by deposit in the U.S. Mail, first class, postage prepaid, this 26th day of April, 1982, tx) all those on the attached Service List.
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Robert L. Willmore Dated:
April 26, 1982 O
l UNITED STATES OF AMERICA 9
NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board 1
In the Matter of
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l
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440
" ILLUMINATING COMPANY, et al. )
50-441 i
)
(Perry Nuclear Power Plant,
)
Units 1 and 2
)
i SERVICE LIST Potor B. Bloch, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 l
Dr. Jerry R. Kline Docketing and Service Section Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C.
20555 1
Mr. Frederick J. Shon James H. Thessin, Esquire J
Atomic Safety and Licensing Board Office of the Executive U.S. Nuclear Regulatory Commission Legal Director Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 4
iN Christine N. Kohl, Chairman l
Atomic Safety and Licensing Ms. Sue Hiatt 1
Appeal Board OCRE Interim Representative U.S. Nuclear Regulatory Commission 8275 Munson Avenue Washington,.D.C. 20555 Mentor, Ohio 44060 J
I Dr. John H. Buck Daniel D. Wilt, Esquire Atomic Safety and Licensing Wegman, Hessler & Vanderburg Appeal Board Suite 102 U.S. Nuclear Regulatory Commission 7301 Chippewa Road Waohington, D.C. 20555 Brecksville, Ohio 44141 G2ry J. Edles, Esquire Terry Lodge, Esquire Atomic Safety and Licensing 915 Spitzer Building Appeal Board Toledo, Ohio 43604 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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Atcmic Safety and Licensing Bocrd Panel U.S. Nuclear Regulatory Commission Wnchington, D.C. 20555
Tha Cleveland Electric Illuminating Company, et al.
SOrvice List Pcge Two Donald.T. Ezzone, Esquire A00istant Prosecuting Attorney Lake County Administration Center 105 Center Street Pcinesville, Ohio 44077 John G. Cardinal, Esquire Prosecuting Attorney Achtabula County Courthouse Jofferson, Ohio 44047 i
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