ML20086Q923

Motion of City of Cleveland,Oh for Leave to File Reply & Reply to Applicants Answer to City Motion for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision.W/Certificate of Svc

ML20086Q923
Person / Time
Site:	Davis Besse, Perry
Issue date:	12/27/1991
From:	Goldberg R, Strother C CLEVELAND, OH, GOLDBERG, FIELDMAN & LETHAM, P.C.
To:	NRC COMMISSION (OCM)
References
CON-#491-12462 91-644-01-A, 91-644-1-A, A, NUDOCS 9112310068
Download: ML20086Q923 (7)

Text

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Jz y'6L IJLnLILD USNHC UNITED STATES OF AMERICA

• ubf0RE THE '91 DEC 30 P1 :57 NUCLEAR REGULATORY COMMISSION 6F8 tC!. 0F SEU4 IAr7 00CKL 11NG A MieVICf.

iiRANCH In the Matter of ) Docket Nos. 50-440-A

) 50-346-A OHIO-EDISON COMPANY )

(Perry Nuclear Power Plant, )

Unit 1, Facility Operating )

License No. NPF-58) )

)

THE CLEVELAND ELECTRIC )

ILLUMINATING COMPANY )

THE TOLEDO EDISON COMPANY )

(Perry Nuclear Power Plant, ) ASLBP No. 91-644-01-A Unit 1, Facility Operating )

License No. NPF-58) )

(Davis-Besse. Nuclear Power )

Station, Unit 1, Facility )

Operating License No. N?F-3) )

)

MOTION OF CITY OF CLEVELAND, OHIO FOR LEAVE TO FILE REPLY AND REPLY TO APPLICANTS'

" ANSWER" TO CITY OF CLEVELAND'S MOTION FOR COMMISSION REVOCATION OF THE REFERRAL TO ASLB AND FOR ADOPTION OF THE APRIL 24, 1991, DECISION AS THE COMMISSION'S DECISION To the Honorable, the Commissioners.

of the Nuclear Regulatory Commission:

Pursuant to 10 C.F.R. S2.730, City of Cleveland, Ohio (Cleveland), an Intervenor-Party, files this motion for leave to file the reply herein to the " Answer" of Ohfo Edison Company, Cleveland Electric Illuminating Company and Toledo Edison Company (collectively " Applicants") to Cleveland's Motion for Commission Revocation of the Referral to the ASLB and for Adoption of the April 24, 1991 decision as the Commission's Decision.

This reply is appropriate because Applicants seriously I

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l distort Cleveland's motion. Indeed, Applicants d'o not answer the substance rf Cleveland's motion at all, seeking leave to answer if the Commission "is going to give any consideration to the substance of Cleveland's Motion" (which, of course, the Commis-sion must) (Applicants' Answer, pp. 2-3; emphasis in origina: ).

Cleveland opposes any such leave. Ipplicants have demonstrated no reason why Cleveland's succinct motion could not be answered in the 15 days provided for in the rules. It is beyond the realm of any proper jurisprudence for opposing parties to await a Commission's-indication that it will " consider" a motion before answering.

The issues raised in Cleveland's motion are not direct-ed at any order of the Board and could not have been addressed in Cleveland's appeal of the Board's order. Cleveland's arguments are neither out-of-time nor have they been waived. Cleveland's motion was prompted by the Commission's ap_a sponte exercise of

-its supervisory authority on November 20, 1991 to suspend the Board'siconsideration of the frivolous " taint" issue, and by Ohio Edison's motion received November 29, 1991 for reconsideration of

'the Commission's action. Cleveland's motion could not have been i

L filed prior to these events.

The motion makes clear that the exercise of supervisory power that the Commission utilized to suspend Board consideration of the " taint" issue provides the Commission the opportunity to avoid unnecessary expenditure of time and money by expediting the decision process. Ohio Edison originally sought review of the legal issue presented to the Commission by a federal court on U o

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ground that the Commission was unable to render a'n untainted decision on a matter of law involving statutory construction.

Applicants' apparent opposition to Cleveland's motion (although Applicants do not address the substance of the motion) is incon-sistent with Ohio Edison's previous efforts to pre-empt Commis-sion review altogether. Cleveland's motion is timely and raises no points that cculd be deemed waived in the context of previous filings concerning other issues. /*

Cleveland's motion accely requests the C.immission to address the legal issues expeditiously in the proper exercise of the Commission's jurisdiction. In the exercise of its superviso-ry power the Commission sua sconte can revoke the reference to the Board and proceed to adoption of the decision of April 24, 1991 as the Commission's decision. The Applicants will then be free to pursue further review of the legal issue in the federal courts.

Wherefore, Cleveland submits that its motion for leave

• / The meaning of Applizant's reference to " factual matters" (Applicants' " Answer", p. 3) to be resolved by the Board is unclear. Applicants have represented that resolution of the

" bedrock" legal issue against them will end the proceeding (Prehearing Conference Tr. 201-202).

to iilo this reply should be granted and its Decoinber 20 motion granted.

Respectfully submitted Danny R. Williams Director of Law June W. Wiener Chief Assistant Director of Law a'sillam T. Zigli saistant Director of Law City Itall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44115 Tolophone (216) 664-2800 ubd, /AIb4

@Roub Go dborg Channing D. Strother, Jr.

B. Victoria Brennan Goldborg, Fieldman & Lotham, P.C.

1100 Fifteenth Street, N.W.

Washington, D.C. 20005 Tolophone (202) 463-8300 Attorneys for City of Cleveland, Ohio December 27, 1991

r LOLMLILD usHkC vNITED STATES OF AMERICA

• BEFORE THE NUCLEAR REGULATORY COMMISSION 91 Ott 30 P1 $7 )

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)

In the Matter of ) Docket Nos. 50-440-A

) 50-346-A OHIO EDISON COMPANY )

(Perry Nuclear-Power Plant, )

Unit 1, Facility Operating )

License No. NPF-58). )

)

THE CLEVELAND ELECTRIC )

ILLUMINATING COMPANY )

THE TOLEDO EDISON COMPANY )

(Perry Nuclear Power Plant, ) ASLDP No. 91-644-01-A Unit 1, Facility Operating )

License No. NPF-58) )

(Davis-Desso Nuclear Power )

Station, Unit 1, Facility )

Operating License No. NPF-3) )

)

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on :his 27th day of _acember, 1991, a' copy of the foregoing MOTION OF CITY OF CLEVELAND, OHIO f

FOR LEAVE TO FILE REPLY AND REPLY TO APPLICANTS' " ANSWER" TO CITY

'OF CLEVELAND'S MOTION FOR' COMMISSION REVOCATION OF THE REFERRAL ,

TO ASLB AND FOR ADOPTION OF THE APRIL 24, 1991, DECISION AS THE L COMMISSION'S DECISION was mailed first class, postage prepaid, to.each'of the following.

! Samuel'J. Chilk

' Secretary of the Commission U.S.- Nuclear Regulatory Commission j Washington, DC 20555 l Ivan Selin, Chairman U.S. Nuclear Regulatory Commission Washington, DC 20555 l

l .. .

Kenneth C. Rogora, Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555 James R. Curtiss, Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555 Forrest J. Romick, Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555 lion. Marshall E. Millor, Chairman Atomic Safety and Licensing Board Panel U.S. Nucioar Regulatory Commission 1920 South Crook Boulevard Spruce Creek Fly-In Daytona Beach, FL 32124 lion. Charles Bochhoofer Atomic Safoty and Licens'ng Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 lion . G . Paul Bollw3rk, III Atomic Safety and Licensing Board ranol U.S. Nuclear Regulatory Commicalon Washington, DC 20555 Joseph Rutborg, Esq.

Sherwin E. Turk, Esq.

Steven R. Ilom, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 Mark C. Schechter, Esq.,

Janet Urban, Esq.

Transportation, Energy and Agriculture Section Antitrust Division Department of Justice Judiciary Center Building 555 Fourth Street, NW Washington, DC 20001 Gerald Charnoff, Esq.

Deborah B. Charnoff, Esq.

Margaret S. Spencer, Esq.

Shaw, Pittman, Potts & Trowbridge 2300 N Street, NW Washington, DC 20037

_ _ . ._ _ - ~ ._ _ _ _ . _ _ _ _ . _ _ ..._, _ . _ . . _ _ _ . . . . . . _ . . _

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t James P. Murphy, Esq.

Squire, Sanders & Dempsey 1201 Pennsylvania Avenue, NW P.O. Box 407 Washington, DC 20044 1 D. Biard MacGuinoas, Esq. >

Volpo, Boskoy and Lyons 918 Sixteenth Street, NW Washington, DC 20006 David'R. Straus, Esq. '

Spiegel & McDiarmid 1350 New York Avenue, NW Suite 1100 Washington, DC 20005-4798 John W. Bontino, Esq. .

Chester, Hoffman, Willcox and Saxbe 17 South liigh Street Columbus, OH 43215 Y kJ Reuben Go'1dberg dYhV Goldberg,Fiolm.[/ an & Lotham, P.C.

1100 Fifteenth Street, NW Washington, DC 20005 (202) 463-8300 Ww ~ * ,r --*v-e--