ML20215F893

Memorandum & Order Denying Applicant 861110 Request for Stay Pendente Lite of Commencement of Discovery or Other Activities,Pending Decision on Appeal of ASLB 861030 Order. Johnson Dissenting Views Provided.Served on 861222

ML20215F893
Person / Time
Site:	Comanche Peak
Issue date:	12/19/1986
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
References
CON-#486-1963 CPA, NUDOCS 8612240102
Download: ML20215F893 (4)

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/I UNITED STATES OF AMERICA 00(FEiET NUCLEAR REGULATORY COMMISSION UNC ATOMIC SAFETY AND LICENSING APPEAL BOA Administrative Judges:

CFFI':.T .

Alan S. Rosenthal, Chairman December 0G9 :i1986hvn,+

Dr. W. Reed Johnson 3^k Thomas S. Moore 3

SERVED DEC 22 N In the Matter of )

)

TEXAS UTILITIES ELECTRIC ) Docket No. 50-445-CPA COMPANY, et al. )

)

(Comanche Peak Steam Electric )

Station, Unit 1) )

)

MEMORANDUM AND ORDER

1. Pending before us are the appeals of the applicants and the NRC staff under 10 CFR 2.714a from the Licensing Board's October 30, 1986 memorandum and order in this construction permit extension proceeding involving the Comanche Peak nuclear facility. In that order, the Licensing Board admitted to the proceeding an amended contention submitted by intervenors Citizens Association for j Sound Energy and Meddie Gregory (hereafter " Consolidated Intervenors"). According to the applicants and the staff, the contention should have been rejected. Inasmuch as they 4 have also appealed from the Licensing Board's May 2, 1986 unpublished memorandum and order accepting for litigation 1

See LBP-86-36A, 24 NRC .

The order was corrected in minor respects the following day.

8612240102 861219 5 PDR ADOCK 05000 DS02 t _ _ _ _ _ _ - . - . - _

y C.

2 another contention submitted by the Consolidated Intervenors,'the applicants and the staff maintain that the intervention petitions should have been denied and the proceeding dismissed.

In connection with their appeal from the October 30 order, the applicants move for a stay pendente lite of "the commencement of any discovery or other activity pursuant to" that order. According to the applicants, they "will be irreparably injured if a great deal of time and expense has to be devoted to discovery which proves unnecessary in the event the applicants' position is sustained on appeal."3 The Consolidated Intervenors oppose the stay application.4 For its part, because the discovery issue does not affect it, the staff has elected to take no position on the stay application.5 2

' Applicants' Application for a Stay Pending Appeal (November 10, 1986) at 2 .

3

! Ibid.

4 Consolidated Intervenors' Opposition to " Applicants'

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Application for a Stay Pending Appeal" (November 21, 1986).

5 November 25, 1986 letter from Richard G. Bachmann to this Board.

.o P

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2. It is manifest that the stay application must be denied. As the Commission has stressed:

The most significant factor in deciding whether to grant a stay request is "whether the party requesting a stay has shown that it will be irreparably injured unless a stay is granted."

Westinghouse Electric Corp. (Export to the Philippines), CLI-80-14, 11 NRC 631, 662 (1980).

The only injury in the prest..t case would be the commitment of resources to a hearing before the Commission has decided whether that hearing should be held. " Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury." Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-395, 5 NRC 772, 779 (1977), quoting Renegotiation, Board

v. Bannercraft Co., 415 U.S. 1, 24 (1974)."

It is equally settled that "one who establishes no amount of irreparable injury is not entitled to a stay in the absence of a showing that a reversal of the decision under attack is not merely likely, but a virtual certainty. Whether the applicants and the staff will prevail on their appeals from 6

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984). As we observed in the cited Midland decision, 5 NRC at 779, the Bannercraft teaching comes into play irrespective of whether the stay is being sought by the applicant (as in Midland) or 4

by an intervenor (as in, for example, Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility),

ALAB-296, 2 NRC 671, 684 (1975)). l 7

Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 746 n.8 (1985). In Perry, that principle was invoked in connection with the denial of the application of an intervenor for a j stay of the effectiveness of a Licensing Board decision pendente lite. Obviously, the principle has no less force in the appraisal of an applicant's stay request.

a b.

4 the October 30 order remains to be seen. The questions presented by those appeals are far too close, however, to permit the conclusion that it is a " virtual certainty" that the order ultimately will be overturned.

Stay application denied.

It is so ORDERED.

FOR THE APPEAL BOARD

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O.. b , N - ,: -

C. J Q n Shoemaker 4

Secretary to the Appeal Board Dr. Johnson would grant the applicants' stay request and therefore dissents.from the foregoing order. In his view, the validity of the Licensing Board's October 30, 1986 order is in sufficient doubt that discovery should not proceed prior to the determination of the pending appeals on the merits.