ML20235H712

Memorandum & Order.* Intervenor Appeal from ASLB Rejection of late-filed Contention Dismissed & LBP-87-19 & LBP-87-22 Vacated on Grounds of Mootness Due to Util Withdrawing Amend Application.Served on 870928

ML20235H712
Person / Time
Site:	Braidwood
Issue date:	09/25/1987
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	ROREM, B.
References
CON-#487-4502 ALAB-874, LBP-87-19, LBP-87-22, OL, NUDOCS 8710010147
Download: ML20235H712 (4)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION TR SP ATOMIC SAFETY AND LICENSING APPEAL BOARD- 28 @l:13 Administrative Judges: jf[ghylg4g Alan S. Rosenthal, Chairman September 5 1987 Dr. W. Reed Johnson (ALAB-874)

Howard A. Wilber SERVED SEP 2 81987

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In the Matter of )

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COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-456-OL

) 50-457-OL (Braidwood Station, Unit )

Nos. 1 and 2) )

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Douglass W. Cassel, Jr., Chicago, Illinois, for the interveners Bridget Little Rorem, et al.

Joseph Gallo, Washington, D.C., for the applicant Commonwealth Edison Company.

Elaine I. Chan for the Nuclear Regulatory Commission staff.

MEMORANDUM AND ORDER Pending before us is an appeal by the interveners Bridget Little Rorem, et al. from a July 6, 1987 Licensing Board memorandum and order in this operating license proceeding involving the Commonwealth Edison Company's Braidwood nuclear facility in Illinois.1 In that memorandum l and order, the Board reaffirmed its earlier denial of the i

interveners' May 6, 1987 motion to file a late contention addressed to the financial qualifications of potential new

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See LBP-87-22, 26 NRC .

8710010147 870925 PDR ADOCK 05000456 1/

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I owners of the facility.2 The motion had been triggered by I the interveners' understanding that Commonwealth Edison intended to apply for an amendment to, inter alia, the operating license for Unit 1 of the facility to reflect a new ownership arrangement proposed by that utility. Such an i application was thereafter filed on May 28.3 j In noting their appeal, the interveners called atten-tion to the fact that, on July 16, 1987, the Illinois Commerce Commission rejected the Commonwealth Edison proposal before it to restructure the ownership of Braidwood. This same development was mentioned in a July 30, 1987 letter from Commonwealth Edison to the Director of '

the NRC's Office of-Nuclear Reactor Regulation, which letter went on to announce the utility's " desire" to withdraw the 2

See LBP-87-19, 25 NRC (June 10, 1987).

3 As recognized by the interveners in a second motion '

filed by them on July 1 and denied in LBP-87-22, acceptance of the late contention would have necessitated reopening of the evidentiary record. That record had closed in December 1986. As a consequence, it was possible for the Licensing Board to issue its concluding partial initial decision on May 19, 1987. LBP-87-14, 25 NRC . That decision authorized the issuance of operating licenses for both units of the Braidwood facility. Although the interveners have a pending appeal from the decision, no stay of its effectiveness was sought. Accordingly, an operating license for Unit I has issued. For its part, Unit 2 remains under construction.

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outstanding amendment application.4 The July 30 communication was followed by a September 8 letter in which Commonwealth Edison stated without qualification that it was withdrawing the amendment application.5 In light of this representation, it is manifest that the controversy with regard to the interveners' late-filed

. contention is now moot. Thus, we adopt Commonwealth Edison's suggestion that the interveners' appeal from the Licensing Board's rejection of the contention be dismissed on that ground.6 In accordance with established practice in such circumstances,7 we also must vacate both Licensing Board orders reflecting that rejection.

See Letter from S.C. Hunsader to Thomas E. Murley, provided to-us as attachments to both the NRC Staff's Response to Appeal Board Order of July 21, 1987 (July 31,  ;

1987) and Commonwealth Edison's Response to Interveners' Request for Deferral of Further Appellate Proceedings (July l 31, 1987). ,

5 See Letter from S.C. Hunsader to Thomas E. Murley, enclosed with the September 14, 1987 letter from NRC staff counsel Elaine I. Chan to the members of this Board. I 6

See Response to Interveners' Request for Deferral of Further Appellate Proceedings (July 31, 1987) at 2. j 7

See, e.g., Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 2), ALAB-656, 14 NRC 965 (1981); Rochester Gas and Electric Corp. (Sterling Power Project Nuclear Unit No.

1), ALAB-596, 11 NRC 867 (1980).

0 l As earlier noted, the July 6 order (LBP-87-22) ,

reaffirmed the rejection of the contention in the June 10 )

order (LBP-87-19).

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Appeal dismissed on the ground of mootness; LBP-87-19 and LBP-87-22. vacated for the same reason.

It is so ORDERED.

FOR THE APPEAL BOARD O [--- \N__; _CL C. Jy}'n Shbemaker Secretary to the .

I Appeal Board l.

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