ML20128K396

Response of Yankee Atomic Electric Co to Motion for Housekeeping Stay.* Requests That Motion Be Denied. W/Certificate of Svc

ML20128K396
Person / Time
Site:	Yankee Rowe
Issue date:	09/27/1996
From:	Dignan T ROPES & GRAY, YANKEE ATOMIC ELECTRIC CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#496-17944 DCOM, NUDOCS 9610110054
Download: ML20128K396 (3)

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Nuclear Regulatory Commission DOOKETED before the 2 Atomic Safety and Licensing Board q SEP 2 71996 3 00CKETWG &

SERVICE MANCH g' "#

g In the Matter of Docket No. 50 M j YANKEE ATOMIC ELECTRIC COMPANY (Yankee Nuclear Power Station) i j RESPONSE OF YANKEE ATOMIC ELECTRIC COMPAhT

! TO MOTION FOR " HOUSEKEEPING STAY."

For the reasons set for herein Yankee Atomic Electric Company (" Yankee")

opposes NECNP/CAN's " Motion for Housekeeping Stay" (the " Motion").

}

1. Presuming, as the Motion does, an Initial Decision of an Atomic Safety and Licensing Board rejecting the only admitted contention and terminating the cr ntested proceeding. the Rules of Practice dictate the effectiveness of such an Initial Decision.

i j 2. Under 10 C.F.R. $$ 2.764 and 2.788, an Initial Decision of the type stipulated is immediately effective to authorize the Staff to issue the licensing action in respect of I which the Notice of Opportunity for Hearing was issued. That immediate effectiveness may be stayed in order to accommodate an appeal by the making and allowance of a motion for a stay, if (and only if) the standards for such a stay have been demonstrated and found. Those standards include (1) Has the movant made a strong showing that it is likely to prevail on the merits of its appeal? and (2) Has the movant shown th'at, l

without such relief, it will be irreparably injured? This is the same rule as is applied in the Courts of the United States.

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'Well prior to the passage of the regulation, it had become settled law that the test first laid down in Virginia Petroleum Jobbers Association v. EPC,259 F.2d 921,925 (D.C. Cir.1958), was the test that the Appeal Boards would follow in ruling on a motion for stay. E.g., Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-192,7 AEC 420-21 (1974); Southern Cal. Edison Co.

(San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-199,7 AEC 478,480 (1974); Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-221,8 AEC 95,96 (1974);

Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-58,4 AEC 951,952 (1972).

There is thus nothing unusual or dire in the Rules of Practice concerning immediate effectiveness and the standards for a stay.

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3. The Motion makes no attempt to demonstrate compliance with 5 2.788 or to demonstrate either irreparable injury to the prospective appellants 2 or likelihood of success on appeal. Its sole premise is that a decision has been entered, that NECNP/

j CAN will or may appeal it, and that absent a stay the decision will be effective. These circumstances are equally tme of each and every Initial Decision of the type in

! question. NECNP/CAN, therefore, is effectively seeking an automatic stay. A request l of this import is effectively a request for amendment of the regulations, and it is addressed to the wrong body and presented in the wrong procedural arena. See CAN

v. NRC,59 F.3d 284,291 (1st Cir.1995) (change of practice amounting to amendment l

j of regulations requires compliance with APA procedures for amendment of regulations).

Conclusion For the foregoing reasons, the Motion should be denied.

I Pgpeetf submitted, j .) l l L I N

Thomas G. Dignap, Jr.

R. K. Gad III Ropes & Gray One International Place Boston, Massachusetts 02110 (617) 951 7000 Dated: September 27,1996.

l Section 2.764 provides for an exception, but it may only be invoked by the Commission (and only in special circumstances): "Except . . . as otherwise ordered by the Commission in special circumstances, an initial decision . . . shall be effective immediately upon issuance . . . " The " good cause" reference that follows is a reference to a stay under $ 2.788.

It is also true that, under $ 2.788(f), the Presiding Officer may issue a temporary stay. However, this provision clearly contemplates that the Presiding Officer has before him a full 5 2.788 motion, to which responses have yet to be received, and the literal terms of this provision seem to exhaust the power to grant a temporary stay once a response has been received. Here there is no $ 2.788 motion pending before this Board.

2A difficult hurdle to surmount where, as here, the only admitted contention deals with ius certii.

The irreparable injury test has been called the "'most crucial' factor in ruling on stay requests." Public Service Company ofNew Hampshire (Seabrook Station, Units 1 and 2), CLI.77-27,6 NRC 715,716 (1977).

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> 1 CERTIFICATE OF SERVICE TD # j

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I, Robert K. Gad n!, one of

• rneys for Yankee Atomic Electric Co ny, $ p p 7 _

ygg0 hereby certify that on September , I served the within pleading in thi: J United States Mail (as well, were indicated, by facsimile transmission) as follow cr tter sqbghh3 y ~m rc (b Shirley Ann Jackson, Chairman Kenneth C. Rogers, Commission rj U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissi g' b Washington, D.C. 20555 Washington, D.C. 20555 l Greta J. Dicus, Commissioner Dr. Nils Dia, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Edward McGaffigan, Jr., Commissioner Jonathan M. Block, Esquire U.S. Nuclear Regulatory Commission Main Street Washington, D.C. 20555 Post Office Box 566 Putney, Vermont 05346 FAX: 802-387-2667 G. Paul Bollwerk HI, Esquire, Chairman Leslie B. Greer, Esquire Atomic Safety and Licensing Board Assistant Attorney General Atomic Safety and Licensing Board Panel Office of the Attorney General U. S. Nuclear Regulatory Commission Trial Division Washington, D.C. 20555 200 Portland Street FAX: 301-415-5599 Boston, Massachusetts 02110 FAX: 617-727-3076 Dr. Jerry R. Kline Franklin County Commission Atomic Safety and Liccnsing Board Courthouse-425 Main Street Atomic Safety and Licensing Board Panel Greenfield, Massachusetts 01301 U. S. Nuclear Regulatory Commission FAX: 413 774 3169 Washington, D.C. 20555 FAX: 301-415-5599 Dr. Thomas S. Elleman Eugene J. Holler, Esquire Atomic Safety and Licensing Board Office of the General Counsel 704 Davidson Street U. S. Nuclear Regulatory Commission Raleigh, North Carolina 27609 Washington, D.C. 20555 FAX: 919-782-7975 FAX: 301-415-3725 Diane Curran, Esquire Office of the Secretary Harmon, Curran, Gallagher & Spielberg U. S. Nuclear Regulatory Commission 2001 S Street, N.W. Washington, D.C. 20555 Washington, D.C. 20009 FAX: 301-415-1672 FAX: 202-328-6918 Office of Commission Appellate Adjudica-tion U. S. Nuclear Regulatory Commission Washington, D.C. 20555 c;- ,

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