ML20080T953
| ML20080T953 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 02/29/1984 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8403020106 | |
| Download: ML20080T953 (7) | |
Text
.
e k-COLKETED USNR0 February 2Q l 84 64 0.u -1 A11 :59 CfF,'.L C? $EC32i CO2Eim & SERVJi.
UNITED STATES OF AMERICA ERMCH NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY-
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
APPLICANTS ANSWER TO SUNFLOWER'S MOTION TO READMIT ISSUE NO. 2 On February 14, 1984, Intervenor Sunflower Alliance, Inc.,
et al.
(" Sunflower") filed a motion asking that the Licensing Board readmit Issue 2 to this proceeding.
The basis for Sunflower's motion was the February 7, 1984 decision of the U.S.
Court of Appeals for the District of Columbia Circuit in New England Coalition on Nuclear Pollution v. NRC, No. 82-1581.
Applicants respectfully. request that the motion he denied.
On March 31, 1982, the NRC amended its regulations to eliminate from construction permit and operating license pro-
. ceedings' all' aspects of. the financial qualifications of electric utilities.
On April 28, 1982, the Licensing Board. granted Applicants' motion to dismiss Issue 2, Sunflower's financial qualifications contention, as required by the new rules.
8403020106 840229 PDR ADOCK 05000440 9
~
.e e The New England Coalition decision, a copy of which was
-attached to Sunflower's motion, found that the Commission's 1982 financial qualifications rule "is not supported by its accom-panying. statement of basis and purpose, as required by 5 U.S.C.
S-553(c) (1982). "
Slip op, at 3.
The Court did not, however, vacate the rule.
Rather, it " remand [ed] the rule to the Commis-sion for further proceedings consistent with this opinion."
Id. at'9.1!
In response to the New England Coalition decision, the Nuclear Regulatory Commis~sion on February 27, 1984 adopted a Statement of Policy, a copy of which is attached hereto.
In
.its Sta'tement of Policy, the Commission announced that it intends to conduct an expedited rulemaking proceeding to address the problems which the Court perceived in the present rule.
The Commission stated that the financial qualifications rule " remains
-formally valid" until the Court's mandate issues -- which will
,not be before March 23, 1984.
For the present purpose, the key language in the policy statement is that
.the Commission directs its Atomic Safety-and Licensing Board and Atomic Safety and Licensing Appeal Panel to continue to treat the rule as valid.
(emphasis added)
The effect of the. Statement of Policy is clear and unanbi-guous:
as far as licensing boards-and appeal boards are concerned, 1/
Compare, for example, Action on Smoking' and Health v. CAB, 713 F.2d 795,.797 (D.C. Cir. 1983) (prior D.C. Cir. opinion
" clearly and unequivocally vacated the offending portion" of the rule.
(emphasis in original))
w-m-3-
the 1982 financial qualifications rule remains in effect.
The Licensing Board is therefore without jurisdiction to readinit Issue 2.
See Memorandum and Order (Concerning Psychological Stress Contention), LBP-82-53A, 16 N.R.C. 208 (1982); Memorandum and Order (Motion for Reconsideration or Certification), LBP-82-69, 16 N.R.C.
751 (1982). - The motion by Sunflower must therefore be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDG;.
BY:
A%
/
JA
.S BE RG",
P.C.
g Cou s l-or Applicants U 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 DATED:
February 29, 1984 m
e 1
e-
.r,
, - - -g-,-
f' f,
[7590-01]
Nuclear Regulatory Commission STATEMENT OF POLICY
.s ES On February 7,1984, the U.S. Court of Appeals for the District of Columbia Circuit granted a petition by the New England Coalition on Nuclear Pollution (NECNP) which challenged the Commission's rule elim-inating fir'ncial qualification review requirements for electric util-ities. New England Coalition on Nuclear Pollution v. NRC, No. 82-1581 (D.C. Cir. Feb. 7, 1984). The court found that the rule was not ade-quately supported by its accompanying statement of basis and purpose, and remanded it to the agency.
In response to this decision the Commission intends to conduct an expedited-financial qualification rulemaking to address the problems which the court perceived in the Commission's present rule. The Commission understands from the court's order that the mandate will issue no earlier than 45 days from the date of the court's decision, i.e., not before March 23, 1984. Until then, the present rule remains formally valid. Therefore, the Commission directs its Atomic Safety and
[
2 Licensing Board and Atomic Safety and Licensing Appeal Panel to continue to treat the rule as valid.
The Comis: ion expects to comolete an adequate response to the D.C. Circuit's decision before the court issues its mandate.
Comissioner Asselstine abstains.
For the Comission*
i JO N C. H0YLE' sistant Secretary of the Comission Dated at Washington, DC this 27th day cf February, 1984
' Con-issioner Gilinsky was not present when this Statement of Policy was aoproved but had previously indicated his approval.
i a
re v Ertr wpr T4 MR -1 A11 :59 February 29, 1984 LFFILE cr 2Eu,it i A 00CKEilfEi & SEPvl!.F BRANCH 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
)
50-441
-)
(Perry Nuclear Power Plant,
)
Units.1 and 2)
)
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Applicants' Answer-to Sunflower's Motion to Readmit Issue No.
2" were served
.by deposit in the United States Mail, first class, postage prepaid, this 29th~ day of February, 1984, to all those on the attached Service List.-
E.
SILBERG f
DATED:
February 29, 1984 m..
s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
TER CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
SERVICE LIST _
Atomic Safety and Licensing Peter B.'Bloch, Chairman Appeal Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Constission f
Washington, D.C.
20555
~
Washington, D.C.
20555 Docketing and Service Section Dr. Jerry R. Kline' Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 4
Washington, D.C.
20555 Washington, D.C.
20555 Colleen P. Woodhead. Esquire Mr. Glenn O. Bright Office of the Executive Legal i
l Atomic Safety and Licensing Board Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Christine N. Kohl, Chairman Ms. Sue Hiatt Atomic Safety and Licensing OCRE Interim Representative Appeal Board U.S. Nuclear Regulatory Commiission 8275 Munson Avenue Washington, D.C.
20555 Mentor, Ohio 44060 l
l-Terry Lodge, Esquire Dr. W. Reed Johnsen 618 N. Michigan Street, Suite 105 Atomic Safety and Licensing Toledo, Ohio 43624 Appeal Board U.S. Nuclear Regulatory ConsLission i
Washington, D.C.
20555 Donald T. Ezzone, Esquire Assistant Prosecuting Attorney Lake County Administration Center Gary J. Edles, Esquire 105 Center Street
-Atomic Safeby-and Licensing Painesville, Ohio 44077 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 John G. Cardinal, Esquire Prosecuting Attorney Ashtabula County Courthouse Atossic Safety and Licensing Jefferson, Ohio 44047 Board Panel' U.S.-Nuclear Regulatory Commission Washington, D.C.
20555
,,..-.-,m.
,,,,,.,...,,4
.,---,,,.w,,
,,-,.v_..,.,,,-nm.,_.,,,,e.,,,,,ne.--,,,
,,,,n..