ML20203L401
| ML20203L401 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 08/22/1986 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#386-458 ALAB-841, LBP-85-35, OL, NUDOCS 8608260163 | |
| Download: ML20203L401 (7) | |
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C DOCKETED USNRC August 22, 1986 16 AW 25 AM :00 CFFICE Oc u.:
DOCKE T,lNu'iii',dTy, uRMD1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL.
)
50-441 g) (,
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
APPLICANTS' RESPONSE TO SUNFLOWER NOTICE OF APPEAL By Decision dated July 25, 1986, ALAB-841, 24 N.R.C.
the Atomic Safety and Licensing Appeal Board " summarily re-ject [ed)" an appeal of Sunflower Alliance, Inc. (" Sunflower")
from the Atomic Safety and Licensing Board's Concluding Partial
(
Initial Decision on Emergency Planning, Hydrogen Control and Die-l sel Generators, LBP-85-35, 22 N.R.C.
(1985) ("PID").1! On August 8, 1986, Sunflower appealed from ALAB-841, in a pleading entitled " Notice of Appeal From Decision of Atomic Safety and l
1/
Sunflower's appeal from the PID dealt only with emergency planning contentions which it had litigated before the ASLB.
8608260163 860822
{DR ADOCK 05000440 PDR b5
i 4
Licensing Appeal Board"
(" Notice of Appeal").
The NRC Staff op-poses Sunflower's Notice of Appeal, on the ground that it fails to meet any of the requirements of 10 C.F.R. S 2.786(b)(2).E!
Applicants agree with the Staff's position, as set forth in its Response, that Sunflower's Notice of Appeal is not in accord with the Commission's regulations governing review of decisions and actions of an Atomic Safety and Licensing Appeal Board.
10 C.F.R. S 2.786.
Applicants concur in the reasoning set forth in the Staff's Response.
Section 2.786(b)(2) requires that a petition for review of a decision or action by an Atomic Safety and Licensing Appeal Board "shall contain the following:
(i)
A concise summary of the decision or action of which review is sought; (ii) A statement (including record citation) where the matters of fact or law raised in the petition for review were previously raised before the Atomic Safety and Licens-ing Appeal Board and, if they were not why they could not have been raised; (iii) A concise statement why in the petitioner's view the decision or action is erroneous; and (iv) A concise statement why Commission review should be exercised."
Id.
(emphasis added).
Sunflower's Notice of Appeal includes none of these required summaries and statements.
Nor is there any basis for the Commission to conclude that the Appeal Board's 2/
See NRC Staff Response to the Notice of Appeal From the De-cision of the Atomic Safety and Licensing Appeal Board (August 15, 1986)
(" Response").
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4 disposition of Sunflower's appeal involves a case of " exceptional legal or policy importance," such that the Commission should re-view the Appeal Board's decision on its own motion, under 10 C.F.R. 5 2.786(a).
Thus, Sunflower, who is represented by coun-sel, has once again disregarded clear prescriptions set forth in the regulations governing the proper form and content of appeals from decisions of NRC tribunals.3/
3/
See ALAB-841, slip op. at 3-4:
In the circumstances, we have no hesi-tancy in summarily rejecting the Sunflower appeal in its entirety.
In passing in March 1985 upon Sunflower's appeal from an earlier partial initial decision in this proceeding, we took note of the fact that, with respect to several of its appellate assertions, Sunflower had " failed to pro-vide any explanation why its claim of error is correct."
That being so, we announced, the assertions were being treated "as waived or abandoned."
It is difficult to understand why Sunflower's counsel chose to attach no significance to that result in the subsequent preparation of his brief on the present appeal.
Whatever may have been the reason, however, the same outcome is warranted here.
The short of the matter is that, if Sunflower wished us to take seri-ously its insistence that the Licensing Board committed error, its counsel was duty-bound to illume the foundation for that insistence.
(footnotes omitted]. - -. - -. -. -
)
4 For these reasons, Applicants respectfully request that Sunflower's Notice of Appeal be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE A
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9 Jaj E.
Silberg, P.C./
Hy y H.
Glasspiegef Counsel for Applicants 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000
[
Dated:
August 22, 1986 i
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00LMETED August 22, 19ygfRC
~86 AUG 25 All:00 UNITED STATES OF AMERICA 0FFICE OF SEua. Ag y NUCLEAR REGULATORY COMMISSION 00CHETJNG & sEpvicr, uRANCH Before the Commission In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing APPLICANT'S RESPONSE TO SUNFLOWER NOTICE OF APPEAL were served by deposit in the United States Mail, first class, postage prepaid, this 22nd day of August 1986, to all those on the attached Service List.
A f f 'f J+$
Harry H.
Glasspiegel DATED:
August 22, 1986
i n
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
SERVICE LIST Lando W.
- Zech, Jr., Chairman Dr.
W. Reed Johnson U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U.S. Nuclear Regulatory Thomas M. Roberts, Commissioner Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Howard A. Wilber James K.
Asselstine, Commissioner Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Frederick Bernthal, Commissioner Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 James P.
Gleason, Chairman 513 Gilmoure Drive Kenneth M.
Carr, Commissioner Silver Spring, Maryland 20901 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Jerry R. Kline Atomic Safety and Licensing Board Docketing and Service Section U.S. Nuclear Regulatory Commission-Office of the Secretary Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Glenn O.
Bright Atomic Safety and Licensing Board Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Commission Board Panel Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 John G.
Cardinal, Esquire Prosecuting Attorney Alan S.
Rosenthal, Chairman Ashtabula County Courthouse Atomic Safety and Licensing Jefferson, Ohio
.44047 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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Colleen Woodhead, Esquire Donald T. Ezzone, Esquire Office of the Executive Legal Assistant Prosecuting Attorney Director Lake County Administration Center U.S. Nuclear Regulatory Commission 105 Center Street Washington, D.C.
20555 Painesville, Ohio 44077 Terry Lodge, Esquire William C. Parler Suite 105 General Counsel 618 N. Michigan Street U.S. Nuclear Regulatory Toledo, Ohio 43624 Commission Washington, D.C.
20555 Ms. Susan L.
Hiatt 8275 Munson Avenue Mentor, Ohio 44060 Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 l
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