ML20092J820

Response Opposing 840615 Further Answer to Sunflower Alliance Motion to Readmit Issue 2 Re Financial Qualification.Svc List Encl

ML20092J820
Person / Time
Site:	Perry
Issue date:	06/21/1984
From:	Lodge T SUNFLOWER ALLIANCE
To:
References
OL, NUDOCS 8406270137
Download: ML20092J820 (3)

Text

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June 21, 1984 DClinrm USMC UNITED STATES OF # ERICA NL. CLEAR REGULA'IORY CCt44ISSION Before the Atomic Safety and Licensing Board ,M JUl125 p; 40

.FF; . .

In the Matter of ) Docket Nos. 50-44(MOL ;; h, fg p";

50-441-OL 3Rt.NCH CLEVELAND ELECTRIC ILLUMINATITU )

COMPAtu, et. al.

)

(Perry Nuclear Power Plant, Units 1 and 2) )

)

RESPOISE OF SUfFIDWER ALLINCE 'IO ' APPLICAffr'S, FUR'IEER AISWER TO SUNFIDWER'S f(TrION 'ID READMIT ISSUE NO. 2' Now comes Sunflower Alliance, by and through counsel, and opposes Applicant's position as set forth in its June 15, 1984 "Further Answer."

By its June 12, 1984 " Policy Statement," 49 Fed. Reg. 24111, the Nuclear Regulatory Cartmission ordered that its March 31, 1982 rule eliminating financial qualifications review frun operating license proceedings continue in effect penchng finalization of a Ccrimission '

response to the renand of the Washington, D.C. Cirruit Court of Appeals in New England Coalition on Nuclear Pollution v. IEC, 727 F. 2d 1127 (D.C. Cir. 1984). To echo the " Separate Views' of Cormiissioner Asselstine.

at 49 Fed. Reg. 24112, "[t]he Conmission's policy statement is both short-sighted and most likely illegal."

l In New England Coalition. the D.C. Circuit quoted frun Williams v. Washirxf.cn Metropolitan Area Transit Cctrmission, 415 F. 2d 922, 939-40 (D.C. Cir.1%8):

l [W]here agency action must be set aside as invalid, but the agency is still legally free to pursue a' valid course of action, a l reviewing court will ordinarily re and to enable the agency to enter a new order after remedying the defects that vitiated the ori-ginal action.

The D.C. Circuit in New Encland Coalition plainly stated, id.

at 1135, that it remanded the rule to the Ccumission for further pro-ceedings consistent with its holding that the rule was not accortpanied l

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by a statement of basis and purpose.

It might be different were the Conmission seeking leave to appeal the 1982 rule to the U.S. Supreme Court, and there were a stay pending which might continue the rule's effect. The circutstance per-petrated here, however, ic illegal. As Conmissioner Asselstine has noted:

The Ccmmission is in effect betting that the D.C. Circuit will not now act to make it very clear that the Ccmmission's 'new' financial qualifications rule has indeed been vacated, and that the Conmission must re-open all those proceedings in which the rule was used to exclude financial qualifi-cations.

(2nphasis in oriainal) Id. at 24112.

It wouId be unfortunate, indeed, for this Licensing Board to line up at the same bettor's window. Sunflower Alliance is aware that generally licensing boards nust follow mandates of the Conmission.

Certainly this Board would not wish to take so patently illegal a '

posture under the circrnstances.

WHEREFORE, Sunflower Alliance respectfully prays the Licensing Board to take jurisdiction and to readuit the former Issue No. 2.

M Terry /J , [L,xige Counse w ower Alliance CERTIFICATION I hereby certify that a copy of the foregoing " Response" was sent to all parties on the acconpanying " Service List" this 2'ist day of June,1984 via regular U.S. Mail, postage prepaid.

A '

Terry'J I,

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D b's 1

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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Before the Atomic Safety and Licensing Board *g4 N25 py 4g

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In the Matter of ) , y'", '. .U .-

) Docket Nos. 50-440 g% iirk

" '!C 4 ' ~

THE CLEVELAND ELECTRIC 50-441

)

ILLUMINATING COMPANY

~

)

(Perry Nuclear Power Plant, )

)

Units 1 and 2) .

SERVICE LIST Pe ter B. .Bloch, Chairman . .

Atomic Safety & Licensing Board , '

U .' S . Nuclear Regulatory Comm.

Washington,'D.C. 20555 .

Dr. Jerry R. Kline

. Atob.ic Safety.. & Licensing Board.

U.S Nuclear. Regulatory Commission Ms. Sue Fuatt Washington,- D.C. 20555 ,

8275 Mmson Avenue Mentor, Ohio 44060 Mr..Glenn O. Bright '

Atomic Safety L. Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ,

Colleen P. Woodhead, Esq. -

Office of the' Executive Legal Director U..S. Nuclear Regulatory Commission .

Washington,.D.C. 20555 ,

~

Jay.Silberg, Esq. -

Shaw, Pittman, Potts, & Trowbridge

• 1800,M Street, NW

. Wash,incton,

- D.C. 20036 q Docketing'& Service Branch

~

. Office of'the Secretary U.S.. Nuclear Regulatory. Commission Washington, D.C. 20555

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At'omic. Safety.& Licensing. Appeal. Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ,'

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