ML20092H114

Answer Opposing Petitioners 840613 Instant Motion for Order Setting Aside or Staying Permit for Ol.Certificate of Svc Encl

ML20092H114
Person / Time
Site:	Callaway
Issue date:	06/22/1984
From:	Bauser D SHAW, PITTMAN, POTTS & TROWBRIDGE, UNION ELECTRIC CO.
To:	NRC COMMISSION (OCM)
References
OL, NUDOCS 8406250356
Download: ML20092H114 (8)

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• d June 22, 1984 COD: Urn UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISS:ON s i

'84 JU.?: 25 R11 :55 BEFORE T!!E' COMMISSION , .

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In the Matter of )

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UNION ELECTRIC COMPANY ) Docket No. STN 50-483 OL

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(Callaway Plant, Unit 1) )

UNION ELECTRIC COMPANY'S ANSWER TO PETITIONERS ' MOTION FOR O?. DER 4 l

SETTING ASIDE PERMIT, OR STAYING PERMIT T

I. Introduction on April 18, 1984, more than a month after final agency '

action in the Callaway operating license prcceeding, Coalition (

for the Environment -- St. Louis Region, Missourians for Safe Energy, and Crawdad Alliance (Petitioners) filed with the Com-mission a motion seeking leave to reopen the record and liti-gate a financial qualifications' contention. Union Electric Company (UE) filed its answer opposi 4 the notion on May 3, 'x ' '

1984. The Commission has not yet ruled on Petitioners' motion to reopen the record. On June 7, 1984, the Commission issued a Statement of Policy in wh$ch it concluded that its rule 1 3,

precluding consideration of financial qualifications in connec-tion with an operating license remains in effect. 49 Fed.Rh.

24111 (1984). On June 13, 1984,, Petitioners filed the instant:

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• W motion seeking revocation or stay of the operating license, which was issued to UE on June 11, 1984.1/ Petitioners assert that issuance of the-license, "in the face of an unresolved mo-tion presenting substantial questions respecting financial qualifications," was improper.

UE submits that no impropriety was involved in the issu-ance of this license, pending a ruling on Petitioners' April 18 motion. This is particularly true in view of the Commission's I

j recent affirmation that financial qualifications should not be 1

considered in connection with an operating license issuance.

! Accordingly, Petitioners' motion to set asida or stay the li-l cense should be denied.

II. The Issuance of the Operating License was Proper 3

Petitioners assert, without any support, that in view of L their unresolved motion to reopen the record, the issuance of i

the license was somehow improper. This assertion is. frivolous.

Petitioners sought no stay of the authorizing adjudicatory de-( cisions in their April 18, 1984 motion to reopen the record. .

i Therefore, Petitioners, in effect, assert that the filing'of a 1/ Petitioners appear to have filed their. June 13 motion with i

the Commission and to have simultaneously filed a letter with the Director of Nuclear Reactor Regulation (NRR) objecting to

. issuance'of-the callaway operating license while.their April 18, 1984 motion is pending.' This-Answer, which effectively re-sponds to both of Petitioners' June 13 filings, is being sub-mitted to the Commission and.to the Director of NRR.

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notion to reopen a completed proceeding automatically stays the effectiveness of a previously issued decision auth'orizing the granting of a license. That is contrary to the law and sound administrative practice. If it were otherwise, the administra-tive process would never come to an end.

The principle that the filing of a motion to reopen does not affect an automatic stay is clearly demonstrated in NRC precedent. In Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-124, 6 A.E.C. 358 (1973), the Atomic Safety and Licensing Appeal Board remanded a decision to the Li. casing Board for further proceedings to de-termine whether a motion to reopen should be granted. The Ap-peal Board added, however, that the validity of the initial de-cision had not thereby been compromised, and the plant was permitted to continue operation. Id. at 365-66. In South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Sta-tion, Unit 1), LBP-82-84, 16 N.R.C. 1183 (1982), an intervenor

• moved to reopen the record and requested a stay of the Licens-ing Board's decision authorizing issuance of an operating li-cense. This request did not automatically stay the decision.

Rather, the Licensing Board determined that the four factors of 10 C.F.R. S 2.788(e) were applicable in assessing whether a stay should be granted. Applying these factors, it denied the

y stay, but permitted further pleadings on the motion to re-4 open.2/

4 These decisions clearly indicate that a Licensing Board

(or the commission) is not required by law or regulation to au-tomatically stay the effectiveness of an earlier decision au-thorizing a license and, indeed, should not do so simply be-cause a motion to reopen is filed. In a licensing proceeding, a showing under 10 C.F.R. 5 2.788(e) is a prerequisite to issu-ance of a stay. Petitioners did not make any effort to demon-strate compliance with the S 2.788(e) criteria, nor did they

{ seek a stay prior to the issuance of the license. Thus, even ,

if Petitioners' motion to reopen had been timely -- and it was not -- the issuance of the operating license was patently prop-or.

f III. . Petitioners' Sole Contention y.

Is Not a' Litigable Issue in an Operating License Proceeding s Apart from Petitioners' failure to seek a stay or to pro-vide grounds for a stay of the license issuance, there is no 1

merit to staying or " setting aside",the license, as requested -

i by. Petitioners. The sole contention Petitioners now seek to litigate relates to UE's financial. qualifications'. In its-t l

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2/- Similarly, in Federal practice, the filing of'a motion Tor relief-from judgment or. order does not,-by itself, affect l _

the1 finality of the judgment'or suspend its operation.

- Fed.R.Civ.P.' 60(b). See also Fed.R.Civ.P. 62(b).

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s . j Financial Qualifications Policy Statement, the Commission di-rected its adjudicatory boards not to accept financial qualifi-cations contentions for litigation in operating license pro-ceedings. 49 Fed. Reg. 24111 (1984).3/ Accordingly, Petitioners' contention raises an inappropriate issue for ei-ther a licensing proceeding or e 5 2.206 petition, and their motion should be rejected.

IV. Conclusion For all of the above stated reasons, Petitioners' June 13, 1984 Motion for Order Setting Aside Pe mit, or Staying Permit and, as stated in UE's May 3 Answer, Petitioners' April 18, 1984 motion to file a new contention, should be denied.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE.

M /b . %u Thomas A. Baxter, P.C.

Deborah B. Bauser David R. Lewis Counsel for Union Electric Company DATED: June 22, 1984 ,

3/ The Policy-Statement continues in effect the Commission's March 31, 1982 financial qualifications rule which determined that no finding of. financial qualifications is necessary for an-electric utility applicant for an operating licanse. See 10 C.F.R. SS 50.57(a)(4), 2.104(c)(4).

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'9 June 22, 1984 C '. . S : '

. U@ic UNITED STATES OF AMERICA -

bU @b NUCLEAR REGULATORY COMMISSION ,

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BEFORE THE COMMISSION ##

In the Matte.r of )

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UNION ELECTRIC COMPANY ) Docket No. STN 50-483 OL

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(Callaway Plant, Unit 1) )

CERTIFICATE OF SERVICE I hereb,' certify that copies of " Union Electric Company's Answer to Petitioners' Motion for . Order Setting Aside Permit, or Staying Permit" dated June 22, 1984, were served this 22nd day of June, 1984, by deposit in the U.S. mail, first class, postage prepaid, upon the following:

Chairman Nunzio J. Palladino U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Victor Gilinsky U.S. Nuclear Regulatory Commission

• Washington, D.C. 20555 Commissioner Thomas M. Roberts U.S. Nuclear Regulatory. Commission Washington, D.C. 20555 Commissioner James K. Asselstine '

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Frederick M. Bernthal U.S. Nuclear Regulatory Commission  ;

Washington, D.C. 20555 )

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Mr. Harold R. Denton Director of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Alan S. Rosenthal, Esquire Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Gary J. Edles, Esquire Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Reginald L. Gotchy Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 James P. Gleason, Esquire Chairman Atomic Safety and Licensing Board 513 Gilmoure Drive Silver Spring, Maryland 20901 Mr. Glenn O. Bright Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commisrion Washington, D.C. 20555 Dr. Jerry R. Kline

• Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Robert G. Perlis, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Joseph E. Birk, Esquire Assistant to the General Counsel Union Electric Company P.O. Box 149 St. Louis, Missouri 63166 I

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A. Scott Cauger, Esquire Assistant General Counsel Missouri Public Service Commission P.O. Box 360 Jefferson City, Missouri 65102 Lewis C. Green, Esquire Green, Hennings & Henry 314 North Broadway, Suite 1830 St. Louis, Missouri 63102 Mr. John G. Reed Route 1 Kingdom City, Missouri 65262 Mr. Howard Steffen Chamois, Missouri 65024 Mr. Harold Lottmann Route 1 Owensville, Missouri 659C6 Mr. Fred Luekey Rural Route Rhineland, Missouri 65069 Mr. Samuel J. Birk P.O. Box 243 Morrison, Missouri 65061 Mr. Robert G. Wright Route 1 Fulton, Missouri 65251 Eric A. Eisen, Esquire Birch, Horton, Bittner & Monroe 1140 Connecticut Avenue, N.W., #1100 Washington, D.C. 20036 .

Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 b M d.bMC Deborah B. Bauser

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