ML20029A033

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Licensee Brief in Response to Appellate Brief of Intervenor Ohio Citizens for Responsible Energy,Inc.* W/Svc List
ML20029A033
Person / Time
Site: Perry FirstEnergy icon.png
Issue date: 01/23/1991
From: Becker D, Silberg J
COMMONWEALTH EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
NRC COMMISSION (OCM)
References
CON-#191-11338 90-605-02-OLA, 90-605-2-OLA, OLA-2, NUDOCS 9102010084
Download: ML20029A033 (39)
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f NUCLEAR REGULATORY COMMISSION Before The Commission i In the Matter of -) ) THE CLEVELAND ELECTRIC ) ILLUMINATING COMPANY, et al. ) Docket No. 50-440-OLA-2 ) ASLBP No. 90-605-02-OLA (Perry Nuclear Power Plant, ) Unit No. 1) ) ) LICENSEES' BRIEF IN RESPONSE TO APPELLATE BRIEF OF INTERVENOR OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC. Jay E. Silberg Dawn M. Decker SHAW, PITTMAN, POTTS & TROWBRIDGE-Counsel for Licensees January 23, 1991 l l l l b l 9102010094 910123 30 9 PD9 ADOCK 05000440: l 0 PDR

TABLE OF CONTENTS Page TABLE OF AUTHORITIES..........................................i11 COUNTERSTATEMENT OF THE CASE................................... 2 A R G UM EN T......................................... o............. 8 I. Introduction......................................... 8 II. The Board addressed the legal issue raised in OCRE's contention.................................... 9 A. OCRE is estopped from arguing that the Board incorrectly interpreted its Contention...................................... 9 B. The Board ultimately addressed the legal issue raised by OCRE's contention.............. 11 III. The Board correctly interpreted Section 189(a) of the Act................................... 12 A. The Atomic Energy Act does not require that Technical Specifications include cycle-specific parameter values................ 14 B. NRC regulations do not require Technical Specifications to include cycle-specific parameter va1ues............................... 16 C. That cycle-specific parameters tradi-tionally have been included in Technical Specifications does not bar their removal from Technical Specifications.......... 21 IV. Section 189(a) of the Act does not guarantee OCRE the right to a hearing on changes to the values of cycle-specific parameters................. 22 A. Section 189(a) of the Act does not guar-antee the right to a hearing on all issues......................................... 23 1. Section 189(a) guarantees the right to a hearing only on matters which are material to the NRC's licensing decisions................................. 23 I

i i 2. The values of cycle-specific param-eters are not material to the NRC's licensing-decis10ns....................... 25 5. Future changes'to'the values of cycle-specific parameters will not'be da into license ~. amendments entitling OCRE-- t to a Section 189(a) hearing.................... 27 C. Verifying mathematical calculations is not the kind of matter as to which Sec~ tion 189(a) of the~Act guarantees-a hearing........................................ 29. CONCLUSION..................................................... 30 y L F k f

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TABLE OF AUTHOli! TIES Pace (s) Casest Arrowhead Construction Company of Dodae City, Kan-pas, Inc. v. Essex Corporation, 233 Kan. 241, 662 P.2d 1195 (1983), overruled on other arounds, 246 Kan. 557, 792 P.2d 1043 (1990).............. 10 Baltimore Gas & Electric Co. v. Natural Resources Refense Council. Inc., 462 U.S. 87 (1983)................ 14 Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir.1983)........... 23, 24 Carstens v. NRC, 742 F.2d 1546 (D.C. Cir. 1984), syrt. denied, 471 U.S. 1136 (1985)....................... 14 Cincolani v. Utah Power & Llaht Co., 790 P.2d 1219 (Utah App. 1990)......................................... 10 Citizens for Fair Utility Reculation v. NRC, 898 F.2d 51 (5th Cir.), cert. denied, 111 S. Ct. 246 (1990)............................................... 17 Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-831, 23 N.E,C. 62 (1986)................................. 13, 20, 22 Clevelgno Electric Illuminatina Co. (Perry Nuclear POVer Plant, Unit 1), LBP-90-15, 31 N.R.C. 501 (1990)............................................ 6, 20 Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant, Unit 1), LBP-90-25, 32 N.R.C. 21 4 (1990)........................................ 7, 11, 12, 19 Cleveland Electric Illuminatina Co. (Perry Nuclear Power. Plant, Unit 1), LBP-90-39, __ N.R.C. __ (1990).................... ............................ 2, 8 Coalition for the Environment, St. Louis Reaion v. NRC, 795 F.2d 168 (D.C. Cir. 1986)....................... 15 Deveese v. Investors Title Co., Inc., 792 S.W.2d 40 (Mo. App. 1990)....................................... 10 Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-824, 22 N.R.C. 776 (1985)................................................... 22 -lii-

Pace (s) New Enoland Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir. 1978).............................. 15 Portland General Electric Company (Trojan Nuclear Plant), ALAB-531, 9 N.R.C. 263 (1979)............ 18, 19, 30 Public Service Company of New Hampshire v. NRC, 582 F.2d 77 (1st Cir.), cert, denied, 439 U.S. 10 4 6 ( 19 7 8 )......................................... 15 San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26 (D.C. Cir.)(en banc), cert. denied, 479 U.S. 923 (1986)........................................... 17 Sholly v. NRC. 651 F.2d 780 (D.C. Cir. 1980), vacated on other grounds, 459 U.S. 1194 (1983)............................................... 27, 28 Sleael v. AEC, 400 F.2d 778 (D.C. Cir. 1968).............. 15, 25 Telecommunications Research and Action Center v t FCC, 917 F.2d 885 (D.C. Cir. 1990)....................... 10 Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert, denied, 469 U.S. 1132 (1985).............................. 23, 24, 26, 29, 30 Union of Concerned Scientists v. NRC, slip opinion No. 89-1617 (D.C. Cir. 1990)......................... 14, 23 STATUTES: 5 U.S.C. S 554(a)(3)......................................... 29 42 U.S.C. 5 2232(a).................... 2, 14, 15, 16, 17, 21, 30 42 U.S.C. 5 2239(a). 2, 8, 11, 12, 22, 23, 24, 26, 27, 28, 29, 30 REGUL.*.tIONS : 10 C.F.R. 5 2.714(e)................................... 8, 10, 11 10 C.F.R. 5 2.762(c)........................................... 2 10 C.F.R. S 50.36..................... 13, 16, 17, 18, 19, 21, 30 10 C.F.R. S 50.91.............................................. 5 -iv-

Pace (s) MISQ4LLANEOUS: 52 Fed. Reg. 3788 (1987)................................... 3, 22 55 Fed. Reg. 4248 (1990)....................................... 5 55 Fed. Reg. 4282 (1990)....................................... 5 j 55 Fed. Reg. 18,690 (1990)..................................... 5 55 Fed. Reg. 42,944 (1990)..................................... 2~ Black's Law Dict f ~ try ( 5th ed. 197 9 )......................... 2 5 i Generic Letter Bo-16, " Removal of Cycle-Specific Parameter Limits from Technical Specifica-tions" (October 4, 1988)............... 3, 4, 17, 18, 25, 26 1 l -v-

January 23, 1991 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before The Commission In the Matter of ) ) THE CLEVELAND ELECTRIC ) ILLUMINATING COMPANY, et al. ) Docket No. 50-440-OLA-2 ) ASLBP No.- 90-605-02-OLA (Perry Nuclear Power Plant, ) Unit No. 1) ) ) LICENSEES' BRIEF IN' RESPONSE TO APPELLATE BRIEF OF INTERVENOR OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC. This proceeding involves an operating license. amendment l sought by The C'aveland Electric Illuminating Company, et al. (" Licensees") to revise the Technical Specifications for the Perry Nuclear Power Plant, Unit 1 ("PNPP"). The amendment l'nvolves the relocation of certain cycle-specific' parameter lim-its from the Technical Specifications into a new plant document known as the Core Operating Limits Report (the "COLR"), and'sub-stituting in the Technical Specifications a reference to the ? COLR, a requirement that PNPP be operated within the limits con-L tained in the COLR, and a requirement that the core operating i limits be determined in accordance with Nuclear Regulatory Com-mission ("NRC") approved methodologies.specified-in the Technical 4 Specifications. Ohio Citizens for Responsible Energy, Inc. e 4 3 w-7 ,_.ymr-, ,,7 ..,y,- ,<,y,, .y.._.,n-s,,,,yi. -,,,, _ ,,y-, j

~. 1 4 ("OCRE") was granted the right to a hearing to contest this license amendment. On November 1, 1990, the Atomic Safety'and Licensing Board presiding over this proceeding (the " Board") issued its Initial Decision. Cleveland Electric 111uminatino Company (Perry Nuclear Power Plant, Unit 1), LBP-90-39, __ N.R.C. (1990). OCRE appealed, and on December 19, 1990, filed its Appellate Brief of Intervenor Ohio Citizens for Responsible Energy, Inc. ("OCRE's Brief").1! Pursuant to 10 C.F.R. S 2.762(c), Licensees file this brief in reply and opposition to the appeal. COUNTERSTATEMENT OF THE CASE Section 182(a) of the Atomic Energy Act of 1954, as amen'ded 1 (the "Act"), 42 U.S.C. S 2232(a), requires the applicant for a nuclear power plant operating license to submit Technical Speci-fications as part of its license application. These Technical 5'pecifications become a part of the operating license. Conse-quently, no change can be made to a plant's Technical Specifica-tions without first obtaining a license atsnGR09t. A license amendment application triggers the public's right to request a hearing as provided in Section 189(a) of the Act, A2 U.S.C. 5 2239(a). 1/ Pursuant to the NRC's recently revised Rules of >ractice, 55 Fed. Reg. 42,944 (1990), this appeal was filed d15ectly vith the-Commission., _...u______1

itistorically, limits associated with reactor physics parame-ters that change with each reload core (the cycle-specific core operating parameters) were included in a plant's Technical Speci-fications. The values of these parameters may change with each reload. Because the values of the core operating parameters were located in Technical Specifications, a license amendment was needed before a plant could be operated in accordance with any changed values. The NRC recognized that Technical Specifications had become extremely cumbersome and a hindrance to safe plant operation and expressed its intention to simplify Technical Specifications, in part by removing all information which was not essential to the safe operation of a nuclear power plant. See Proposed Policy Statement on Technical Specification Improvements for Nuclear Power Plants, 52 Fed. Reg. 3788 (1987). Consistent with this s'implification process was the NRC's issuance on October 4, 1988 of Generic Letter 88-16, " Removal of Cycle-Specific Parameter Limits from Technical Specifications." Generic Letter 88-16 encouraged licensees to streamline their plant Technical Specifications by (i) relocating the values of cycle-specific parameters from the plant's Technical Specifi-cations into a COLR for that plant, (ii) substituting in the Tet.nical Specifications in place cf cycle-specific parameter values a reference to the COLR and a requirement that the plant l

= be operated within the limits set forth in the COLR, (iii) requiring the cycle-specific parameter values to be deter-mined in accordance with NRC-approved methodologies referenced in the Technical Specifications, and (iv) requiring licensees to a submit a copy of the COLR to the NRC. The NRC anticipated that changing Technical Specifications in the manner suggested in Generic Letter 88-16 would signifi-cantly decrease the number of requests for license amendments and result in a resource savings for both licensees and the NRC. See Generic Letter 88-16 enclosure at 1. Since Generic Letter 88-16 was issued, the NRC has approved approximately 70 license amend-ments consistent with the guidance of Generic Letter 88-16. On December 19, 1989, Licensees submitted to the NRC an application to amend the PNPP operating license in accordance with Generic Letter 88-16.E! This amendment application was sup-plemented by letter dated March 30, 1990. On February 7, 1990, the NRC published a notice of consider-ation of this amendment application and afforded an opportunity 2/ The amendment relocates the values of'the Average Planar i L Linear Heat Generation ~ Rates, the Maximum Average Planar Linear Heat Generation Rate Factor Curves, the Minimum Crit-ical Power Ratio Factor Curves, and the Linear Heat Genera-tion. Rates from PNPP's Technical Specifications ~to the COLR. 4 i ,..... -. ~ -.

t for a hearing.2! The license mnendment was issued on September 13, 1990.A/ i OCRE petitioned to intervene in the proceeding and requested a hearing on the proposed amendment.E! Both Licensees and the NRC Staff filed objections to OCRE's petition.5! Without ruling on these objection =, the Board directed OCRE to file its contention.1# OCRE filed the following contention l The Licensee's proposed amendment to remove cycle-specific parameter limits and other cycle-specific fuel information from the plant Techni-cal Specifications to the Core Operating Limits Report violates Section 189a of the Atomic Energy Act (42 USC 2239a) in t hat it deprives members of the public of the right to notice and opportunity for hearing on any 1/ 55 Fed. Reg. 4282 (1990). A/ ~ Because the NRC Staff determined (and OCRE acknowledged) that the amendment involved no significant hazards consider-ations, gee 55 Fed.' Reg. 4248 (1930); 55 Fed. Reg. 18,690 (1990), the amendment could be issued notwithstanding.the pending request for a hearing. See 10 C.F.R. S 50.91 (1990). E/ Petition for Leave to Intervene and Request-for a Hearing, l March 8, 1990. E/ Licensees' Answer to Ohio Citizens for Responsible Energy, Inc. Petition.for Leave to Intervene-and Request for Hear-ing, March 23, 1990; NRC Staff Response to Petition to Intervene Filed by Ohio Citizens for Responsible Energy, March 28, 1990. 2/ Memorandum and Order Scheduling Filing of Contention, April 2, 1990. l -.. -.. -.. -

.= \\ ch?nges to thq cycle-specific parameters and fuel information.1/ Licensees and the NRC Staff responded to OCRE's contention,EI and OCRE responded to these answers.1S! The Board then admitted OCRE as a party to the proceeding.11/ Although-the Board noted that OCRE's contention was, on its face, a purely legal one, 31 N.R.C. at 507, the Board went on to find a factual issue subsumed within the legal question. In particular, the Board found that: (t]he question hereont issue, while ostensibly only a question of law, is not barren of subtle factual con-tent. Thus, we see wrapped within the outer layer of the legal question a more recondite question-of fact: To what extent does the material to be included within the new technical specifications inoxo-rably specify the cycle-specific parameter liraits which would be removed? Perry, LBP-90-15, 31 N.R.C. at 507. I l E/ OCRE Filing of Contention and Response to Licensee and Staff Answers to OCRE's Petition for Leave to Intervene, April 23, 1990. l 2/ Licensees' Answer to Ohio Citizens for Responsible Energy, Inc. Contention, May 9, 1990; NRC Staff Response.to the= Con-tention Proposed by Ohio Citizens for Responsible Energy and to Arguments Concerning OCRE's Standing to Intervene, May 18, 1990. 1E/ OCRE Response to Licensee and NRC Staff Arsvers to OCRE's Contention, June 1, 1990. 11/ Memorandum.and Order (Granting Petition to Intervene)., i LBP-90-15, 31 N.R.C. 50) (1990). i l

i l i Licensees and the NRC Staff subsequently filed motions for reconsideration.12/ After OCRE's response,1E! the Board denied the motions and established a discovery and hearing-schedule.11/ At the ccnclusion of discovery, OCRE, Licensees and the NRC Staff reached agreement on a statement of etipulated facts that 4 obviated the need for a hearing.1E/ In particular, the parties agreed that calculating the values of the cycle-specific parame-ters which were relocated from PNPP's Technical Specifications to the COLR does not involve the exercise of substantial discretion J or substantial engineering judgment on Licensees' part.15# Because this question, the sole issue which was to have been decleed at the scheduled evidentiary 1. earing, had been

esolved, 12/

Licensees' Motion for Reconsideration of Licensing Board's Memorandum and Order (Granting Petition to Intervene), June 28, 1990; NRC Staff Motion for Reconsideration, July 3, 1990. 11/ 'OCRE Response to Licensee and NRC. Staff Motions for Recon-sideration of LBP-90-15, July 12, 1990, li/ tiemorandum and Order (Denying Staf f's and Licensee's Mations for Reconsideration), LBP-90-25, 32 N.R.C. 21 (1990). ) 15/ Stipulation of Agreed Facts between Licensees, NRC Staff and Ohio Citizens for Responsible Energy, Inc., October 17, 1990. 15/ Id. at 5. ' l 1 l

4 ^ i l 11# the Board cancelled the hearing knd rendered its initial deci-sion approving the NRC' Staff's issuance of the amendment.1E! t ARGUMEN"' INTRODUCTION OCRE makes two arguments in its Brief., First,.OCRE argues' that the Board failed to-address the legal-issue raised by OCRE in its critention.1E# OCRE claims that the-Board should have followed the the procedure established in 10 C.F.R. S 2 714(e) fer' resolving " pure issues of law." OCRE should be estopped from rakir.g this argument because it took the contrary' position before che Board. In any event, the Board ultimately addressed OCRE's legel issue. ? Second, OCRE argues that the Board:.incorrectlyLinterpretel Section 189(a) of the Act by, in OCRE's view, linking theLhearing rights granted under that section-to the safety significance of. the license amendment.2E# This argument is also without merit. The Board correctly interpreted'Section 189(a);as guarantying a right to a hearing on changes to' cycle-specific parameters only-12/ Memorandum and Order (Cancelling' Scheduled Hearing), October 18, 1990, lE/ Perry, LBP-90-39, _ N.R.C. at _. 12/ OCRE's Brief at 5. IS/ OCRE's Brief at 11. -C-f- 1 i

1 t if the values of such parameters are required to-be included in Technical Specifications. II. THE BOARD ADDRESSED THE' LEGAL TSSUE RAISED IN OCRE'S CONTENTION. A. OCRE Is Estopped From Arcuino That The Board Incorrectly Interpreted-Its Contention. Licensees'believe that OCRE is not entitled tol argue-- that the Board incorrectly transformed OCRE's' purely legal-contention into a factual-one. When Licensees in their .a MotionforReconsiderationsuggestedthatlthe-Boardhadgone outside of the scope of OCRE's contention by raising a fac-tual question,El# OCRE explicitly rejected such a claim and asserted that in finding a factual question within OCRE's legal contention, "the-Board merely made an< interpretation of OCRE's contention. .--._The Board simply saw the need fcr additional analysis, including factual information, to resolve the issue raised by OCRE."1E! Having accepted _the benefits of the Board's order permitting it to intervene e i 11/ Licensees' Motion far Reconsideration-at-7. ll/ OCRE Response to Licensee:and NRC Staft Motions for. Recon-sideration of LBF-90-15 at 7-8, _9_ a

) based on the Board's interpretation of the contention, OCRE cannot now appeal and seek =a reversal of this decision.22I OCRE's current claim -- that the Board should have fol- ~ i l loved the procedures set forth in 10 C.F.R. 5 2.714(e) to i resolve OCRE's contention -- is totally inconsistent with the position OCRb asserted before the Board.. OCRE.should be o i estopped from now asserting a contrary position.2A! OCRE should not be allowed to takeLone position before the ~ Licensing Board and then,. being dissatisfied with the Board's-decision on the merits, espouse a diametrically opposite position before the Commission. Cf. Telecommunica-tions Research and Action Center v. FCC,s917 F.2d 585 (D.C. Cir. 1990) (petitioner lacks standing to challenge agency l 2d/ See Deweese v. Investors Title Co., Inc.,.792 S.W.2d 40, 42 L (Mo. App. 1990) (the general rule is that,a litigant:who has l voluntarily and.vith knowledge'of all material facts accepted.the benefits of an order, decree-or judgment cannot afterwards take or prosecute an appeal to reverse it). See also Cincolani v. Utah Power & Licht.Co., 790 P.2d 1219, 1221 (Utah App. 1990) ("[u]nder the general I acceptance-of-the-benefits doctrine, cone whoraccepts a. bene-fit under a judgment-i.. estopped from later attacking the s i judgment on appeal. "). 11/ Cf. Arrowhead Construction Company of Dodae City,'Kansast Inc. v. Esst_ Corooration, 233 Kan. 241, 662"P.2d 1195, 1201 (1983), overruled on other arounds, 246 Kan. 557, 792 P.2d. 1043 (1990) (* parties,to an action are bound by their: plead-ings and judic!.al declarations and are estopped to deny or contradict.then when the other parties to the action relied i thereon-and cht.nged their positions by-reason'thereof"). i w a,., +, ...n,- -a s e.,. m-- e.,<w r nn ew,+,-

1 i ' order where. petitioner argued before the-agency for the end result it now contests on appeal).- i 1 B. The Board Ultimately Addressed Th'e Leoal Issue Raised By-OCRE's Contention. Despite the fact that OCRE, L'icensees and the NRC Staff' all believed that the contention pr.sented by.OCRE involved J only a' legal question, the-Board nonetheless concluded that the corractness of the contention could not be determined without first conducting:some factual analysis. See_Perrv, LBP-90-25, 32 N.R.C. at 26.. The: Board believed OCRE's' con-1 tention could only be correct if cycle-specific parameters i were required to be included in Technical Specifications. Id. If the values of=these parameters were not required to a be in Technical Specifications,-then there would be.no Sec-tion 189(a) right to a hearing with respect to subsequent changes to these values. I d '. ( Although the Board's' method for dealing with OCRE's contention was not the method set forth in 10 C.F.R.. 5 2.174(e), which OCRE presumably anticipcted the Board would use, the Board, nevertheless, addressed the. legal. issue contained in OCRE's contention. The Board ultimately determined that,. inasmuch as-the values of cycle-specific paranieters are not required to be included in PNPP's Techni-cal Specifications, OCRE does not have a right to a:Section -l l

189(a) hearing on changes to these values. Thus, the amend-ment does not violate OCRE's rights under Section 189(a).2E# In any event, whether or not the Board's decision addressed OCRE's legal issue, that issue is now presented by OCRE's appeal to the Commission. OCRE's complaint about the Board's procedures is therefore moot. III. THE BOARD CORRECTLY INTERPRETED SECTION 189(a) OF THE ACT. In approving the NRC Staff's issuance of the amendment, the Board interpreted Section 189(a) of the Act as granting OCRE the right to a hearing on changes to cycle-specific parameters only if those parameters were required to be included in Technical Specifications. See Perry, LBP-90-25, 32 N.R.C. at 26. Beca'use (as stipulated by OCRE) the derivation of these values does not require substantial engineering judgment, the Board concluded that the values need not be in Technical Specifications and OCRE therefore was not deprived of any hearing rights. The Board's interpretation is correct. Section 189(a) of the Act guarantees the public an opportu-nity for a hearing with respect to all license and license amend-ment applications. Because Technical Specifications are a part IE/ See discussion in Sections IIIA and IIIB belov explaining why cycle-specific parameters are not required to be included in PNPP's Technical Specifications. t y

a. of.a plant's operating license,.a proposal'to change Technical Specifications involves a license amendment and the public'there ; fore has a right to request a. hearing. If.the Technical Specifi-cations include a particular provision that-is not required by= statute or regulation, the Commission'is entitled to delete that item.from Technical Specifications. Once it has been deleted, changes to that item.may be made without the opportunity for a public hearing because no changes to Technical Specifications.are required. The public would not~have any independent right to a hearing with respect to such information. Thus, if L the actual-values of cycle-specific parameters are not required to be included in Technical Specifications, OCRE does not have a right l to a hearing with respect to changes to such values once those values have been deleted from Technical Specifications. _Because neither statute nor regulation requires the inclusion of cycle-specific parameter values in-Technical Specifications, the Board correctly concluded that relocating such. values from PNPP's l. Technical Specifications into the COLR did not deny OCRE any hearing rights.25# I 26/ See Cleveland Electric Illuminatino Company"(Perry Nuclear Power Plant, Units 1 and 2), ALAB-831, 23cN.R.C. 62. 66 i l -(1986) (the Appeal Board refused to: reopen a hearing to determine if relocating-certain portions of.PNPP's fire pro-tection plan from FNPP's~ Technical Specifications into its FSAR violated 10 C.F.R. 5 50.36 in part because OCRE~ failed. to carry its. burden of; demonstrating.that the excluded por-tions of the fire protection program were required to be in. PNPP's Technical Specifications). i 3 z

4 i A. The Atomic Enercy Act Does Not Recuire That Technical Specifications Include Cycle-Specific Parameter Values. Technical Specifications for nuclear power plants are gov-erned by Section 182(a) of the Act which provides that: In connection with applications for licenses to operate production or utilization facilities, the applicant shall state such technical specifications, including information of the amount, kind, and source of special nuclear material required, the place of the use, the specific characteristics of the facility, and such other information as the Commission may, by rule or f regulation, deem necessary in order to enable it to find tilat the utilization or production of special nuclear material will be in accord with the common defense and security and vill provide adequate protec-tion to the health and safety of the public. Such technical specifications shall be a part of any license issued. The statutory language provides the NRC with broad discre-tion to determine the information that it " deem (s] necessary" to t assure adequate protection for public health and safety. &This expsnsive statutory charter is consistent with the great latitude which the Act in general provides to the NRC. See Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc.,, 4 62 U.S. 87 (1983); Carsteris v. NRC, 742 F.2d 1546, 1551 (D.C. .ir. 1980'. cert. denied, 471 U.S. 1136 (1985) (the "Act vests broad discretion in the NRC to establish qualifications for licensees of nuclear facilities"). S.ee also Union of Concerned Scientists

v. NRC, slip opinion No. 89-1617 at 6 (D.C. Cir. 1990) (NRC pro-cedural rules are given great deference because of the unique. _

degree of authority the NRC is given to decide the means to i achieve its statutory objectives); Public Service' Company of New , Hampshire v. NRC, 582 F.2d 77, 82 (1st Cir.), cert, denied, 439 U.S. 1046 (1978) ("[t]he Atomic Energy Act of 1954 is hallmarked l 4 by the amount of discretion granted the Commissioniin working to 4 achieve the statute's ends (of protecting the health and. safety-of the public]"); Siecel v. AEC, 400 F.2d 778, 7831(D.C. Cir. 1968) (the Act's regulatory scheme "is virtually unique in the degree to which broad responsibility is reposed in the-adminis-tering agency, free of'close prescription in its charter as to how it shall proceed in achieving the statutory objective"). Section 182(a) in particular has.been interpreted asigiving the NRC extremely broad discretion-~to carry out itsfstatutory mandate. In addition to authorizing the NRC to determine what-information should be included in Technical Specifications, Sec-tion 182(a)~of the Act authorizes.the.NRC to' determine the finan-cial qualifications of license applicants...The court in Coali-tion for the Environment. St. Louis Reaion v. NRC,.795 F.2d 168, 174 (D.C. Cir. 1986) determined that Section 182(a) gives "'the NRC complete discretion to decide-what financial qualifications are appropriate'" (quoting Nev,Encland' Coalition on Nuclear-Pol-lution v. NRC, 582 F.2d 87, 93 (1st Cir. 1978)). The language in Section 182(a) governing-financial qualificat-lons ("such informa-tion as the Cemr.ission, by rule or regulation, may determine to, ___ j

be necessary~...") is essentially the same as the Section 182(a) language governing Technical ~ Specifications. The NRC's discretion in.the Technical Specifications context'is therefore equally broad as the NRC's discretion with respect 1to financial qualifications, a B. NRC' Reoulations ' Do' Not: Require Technical Specif ications To Include Cycle-SDecific Parameter Values, t The NRC has.implementedLits authority'under Section 182(a) of the;Act by promulgating 10 C.F.R. S 50.'36. Subsection-(b) of that regulation provides that operating licenses'shall include? technical specifications to be derived f rom the analyses and-- L evaluations included in.the safety. analysis reports, and amend-ments thereto, and such additional technica11 specifications as the NRC finds. appropriate. = Subsection (c) further providesethat " Technical Specificationsfvill-includecitems in.the-following categories": (i) safety limits and limiting safety system set-tings, (ii) limiting conditions for operation,-(ii'i) surveillance . requirements, (iv) design features and-(v) admin'istrativeicon - trols. The terms.of 10 C.F.R. 5 S0.36'are very, general in' nature. The regulati'on merely requires-that. Tech'nical Specifications- "wi'11 include items" in specified " categories." It does not-require that all " items" which could' conceivably fitEv'ithin these-categories be included.in Technical Specifications. The language '

l l of this regulation clearly gives the NRCLthe discretion to deter-mine what must be included'in Technical Specifications. By revising.the Technical Specifications of some 70 units to l relocate cycle-specific parameter values'from Technical Specifi-cations to core operating limits reports (as recommended inL Generic Letter 88-16), the NRC has acted well within the discre-tion afforded by 10 C.F.R. S 50.36 and Section 182(a) of the Act. That exercise.of discretion would certainly be upheld by_the courts.

See, e.a.,

Citizens for-Fair Utility Reculation v. NRC, I 898 F.2d 51, 54 (5th Cir.), cert, denied, 111 S. Ct.. 246 (1990) d (courts reviewing agency actions are even more. deferential when reviewing an agency's application and interpretation of its.own regulations); San Luis Obisoo Mothers for Peace v. NRC,.789 F.2d 26, 30 (D.C. Cir. )(en bant:), cert. denied, 479 U.S. 923 (1986) j (an agency's interpretation of its own rules should be set aside only if it is plainly inconsistent with the language of-the regu-l lations). The NRC license amendraents relocating cycle-spec.;fic parame-ters clearly are not inconsistent with the broad language of 10 C.F.R. S 50.36. Nothing in 10 C.F.R. S 50.36 requires that Tech-nical Specifications include cycle-specific parameter values. The interpretation of 10 C.F.R. S 50.36, as reflected in-Generic 4 Letter 88-16 and in the license amendment at issue here, is a reasonable one and should not be undone. e _tj 1 i The' leading case interpreting the..tatutory and regulatory 1 requirements for Technical Specifications is Portland General . j Electric Company (Trojan Nuclear Plant), ALAB-531, 9=N.R.C.?263 (1979). In that case ~, the licensees submitted a-license au.ond-ment application, supported by a " design report," which proposed to expand the capacity of1the plant!s' spent fuel pool. - The State of Oregon, the intervenor in the proceeding, sought-to have1cer-tain information in the " design report" included in Techn'ical Specifications.- The Atomic Safety land Licensing ~ Appeal. Board ruled that 10 C.F.R. S 50.36 did.not-require such information to. be included. The Appeal Board concluded:that 10 C.F.R. S 50.36 does not require that every' operational detail be includedLin Technical Specifications, but rather that: the contemplation of both the Act and the regulations-is that technical specifications are tocbe' reserved for-those matters as to which the : imposition of rigid con'- ditions or limitations upon reactor operation-is: deemed. necessary to obviate the possibility of an abnormal situation or event'giving. rise to an-immediate threat to the'public health and safet'y.' JA2 at 273. The Appeal Board found that the information - requested by the1 state to be included inLTechnical Specifications l l did not meet this test. ll. l Nor'do the cycle-specific parameter ~ values at issue in this proceeding meet the-Troian test. Generic ~ Letter 88-16-and.the' 18-L i I t

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\\ license'amendmentsLwhich' follow lit' are' based on the conclusion j that' plant operationjgoverned by' appropriate. core operating lim- . its willibe' assured'by Technical:Spe'cifications-which require'the use_ of NRC-approved methodologies; to developL core operatingD11m- } its and which mandate < adherence toLthose: core operating l'imits. OCRE'has not challenged this conclusion..- Thus,1the. amendment modified PNPP's Technical'-Specifications-in a' manner that'i:s entirely consistent with the requirements of?10 C;F.R.JS.50.36. ~ I and Troian. Although the:Doardiin'the instant' case vaguely _noted-that Troian requires ="some suchilimitati'ons" to'bc;includta -in

Technical' Specifications, see. Perry, LBP-90-25, 32 N.R.C.'Et 26,:

r the Board did not conclude that. cycle-specific parameters them-9 selves must appear:in Technical! Specifications. t cOCRE has already agreed that the methodologies: referenced in-PNPP'scTechnical Specifications which are-used to' calculate the core operating parameters have!been approvedLbyfthe^NRC ani can-- not be changed without NRC approvali2 OCREchas alco' agreed-that these methodologies'do not permit Licenseesisubstantia1' dis-cretion or require substantial. engineering judgment'on Licensees' part in? deriving the numerical'va).ues of the' cycle-specific = 7 parameters. b. All' L t has been taken.away.from-OCREJas.a' result 1of theLamendment;is OCRE's right to a hearing to check-22/ Stipulation of Agreed' Facts at 3. lE/ Id. at 5. 4 ) .,s ... ~,. .. - ~.- ~.-,..u..-.~.--.-..-=~-..-.........-.u-...

I 1 + Licensees' arithmetic in determining the actual values _of the LBP-90-15, 31 N.R.C. at 507.2E/ parameters, fee Perry, The amendment approved by the Licensing Beard'in this pro-ceeding is very similar to_the situation confronted by the Appeal Board in Perry, ALAB-831, 23 N.R.C. 62. Inldetermining_whether Licensees could relocate portions of-the fire protection plan from PNPP's Technica1' Specifications into the final safety analy-sis report, the-Appeal Board took into consideration the fact that the licensing action which. carried out the relocation included the additional-license requirement that Licensees comply with the fire protection program contained in the final safety analysis' report. Id, at 66.- The Appeal Board concluded that this condition made it impossible for-any party'to claim that transferring portions of the fire protection olan from'PNPP's-l Technical Specifications to the Final Safety Analysis Report I' paired Licensees' commitment to carry out:the PNPP-fire protec-m tion program. Id. i 22/ OCRE suggests that approval of the c+rndment at aue here will deny OCRE the " opportunity tr; caallenge=the adequacy of the NRC Staff-approved methodologies."- OCRE's Brief at 13. The short answer _ to this = suggesticn' is that OCRE's right to challenge the adequacy of the methodologies is-outside the scope of OCRE's contention, which is limited'to " cycle-specific parameter limits and other cycle-acocific fuel information,".not methodologies. Sig OCRE Filing of Contention at 1.. a-

C. That Cycle-Soecific FLrameters Traditionally Have Been Included In Technical Specifications Does Not Bar Their l -Re3 oval From Technical Specifications. 1 OCRE has asserted that the values of cycle-specific parame-l ters must remain in PNPP's Technical _ Specifications because they have traditionally been included in' Technical Specifications.ES/ l In essence, OCRE is arguing that "once a Tech Spec,_always a Tech-Spec." This-argument clearly lacks merit. As discussed above,-.Sectimi 182(a)Lof the Act gives the NRC tie discretion ei determine what information is-and is not-included in Technical Specifications. To hold that information onct contained in Technical Specifications can_never be removed would be to strip the.NRC of the authority granted-toLit under the Act. The only constraint on the'NRC's authority:to control-i the contents of Technical Specificat-lonslis-10lL F.R. 5 50.36, n,ot whether such information has traditionally Seen included in-technical Specifications. As.shown above, 10 C.F.R. 5H50.36 does not require inclusion of cycle-specific parameter values in Tech-nical Specifications. The NRC has added provisions to Technical Spec'ifications in s the past without considering whether those provisions were 2E/ OCRE's Filing of Content' ion at 3. 21- ~: e-w ..s ..ca-.- --*.eo e w,_+ + e . re e. +

actually required.21 The NRC would be prohibited from eliminat-ing such extraneous material from Technical Specifications if the l Commission were-to rule that cycle-specific _ parameters cannot be a removed from PNPF s Technical Specifications simply because such ' values have "tradit'ionally" been included..JOs the_ Appeal Board observed in Perry,.ALAB-831, 23-N.R.C. at 66 n.ll: It is of little moment here that, as the staff's-response cbserves (ibid.), fire protection requirements have been included in-the technical: specifications of-other ope 7ating licenses. For it does not follow from that facc that such inclusion is required by Commission. regu'.at ions. Cf. Lono Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-824, 22 PRC 776, 781 (1985). IV. SECTION 189(a) OF THE-ACT-DOES NOT -GUARANTEE OCRE THE RIGHT. TO A HEARING ON CHANGES TO THE VALUES-OF CYCLE-SPECIFIC PARAMETERS. Section 189(a)(1) of the Act provides: i In any proceeding under this-chapter,Ifor the granting, I suspending, revoking, or amending:of any license or construction permit the~ Commission shall grant a hearing upon the request of any person whose interest-1 may be affected by the proceeding,_and shall admit any such person as a party to such proceeding. 11/ SS Fed. Reg. 3788, 3789 (1987). .. 'l l l

1 l A. Section 189(a) Of The Act Does Not Guarantee The Richt To A Hearino On All Issues. 1. Section 189(a) Guarantees The Right To A Hearing Only on Matters Which Are Material To The NRC's Licensing Decisions. The courts have interpreted Section 189(a) to require a hearing only as to.the issues which are-material to the NRC's licensing decision. See Bellotti v. NRC, 725 F.2d 1380, 1382 (D.C. Cir. 1983); Union of concerned Scientists v. NRC, 735 P'.2d 1437, 1449 (D.C. Cir. 1984), cert, denied, 469 U.S. 1132 (1985). Accord, Union of Concerned Scientists, slip opinion No. 89-1617. In Bellotti, the NRC issued an order modifying a reactor operating license which required the licensee to develop a plen for reappraisal and improvement of management' functions. The State Attorney General sought to intervene and requested a Sec-tion 189(a) hearing on the content of the plan, namely the con-tinued operation of the plant, the nature of improvements to the plant, and the adequacy of the licensee's reappraisal and its implementation. The NRC denied the request for a hearing. The court upheld the NRC's denial en the grounds that the development of the plan took place outride of the license amendment proceed-ing and therefore, was not a part of the NRC's decision to amend the license. 142 at 1382. Becaure the substance of the plan was not a part of the NRC's decision tr. modify the license, it was - - _ _

-{ L* not a material factor in the'NRC's-decision, and therefore, Sec-1 tion 189(a) of the Act did not guarantee a right to a hearing on the substance of the pleri.,- See Id. 1 L In Union of Concerned Scientists, 735 F.2d 1437,'the NRC i l adopted a rule which provided that atomic safety and-licensing-l boards did not have to consider the results of emergency pre-paredness exercises in licensing' hearings.before authorizing a . full power license to' operate c nuclear: power plant.,The NRC, -however,.would not actually ' issue the license until' emergency preparedness exercises were satisfactorily _ completed. i Union of Concerned Scientists claimed that thistrule vio-lated its Section 189(a)'right to a hearing on:an issue material: ( to the licensing proceedings. Id. at 1438=.. The NRC admitted' l that it would not issue a license until: emergency. preparedness l exercises were satisfactorily completed. As a result,.the court doncludedthatsuchexerciseswerematerial-tothe.NRC'slicens-ing decision.. Id. Therefore, the court heldithat the:NRC.-rule removing' consideration of these exercises from the scope.of a. I Section 189(a) hearing' denied the public its right to'a hearing. Id. at 1438. i i r e. .. -. ~.-..

~ ~ + s 2.- The Values _Of. Cycle-Specific Parameters Are Not-Material To The NRC's= Licensing Decisions.. With respect toithe-NRC's-licensing. decisions,oinformation. is' material'onlyl.if_ittis'so. substantial 5and.importantTas'to influence the NRC.'s. decision. 3,g.g Black's Law. Dictionary'880 . (5th ed. 1979) (" material" defined,as relating.to a: matter that: j ~ is so substantial and importantias to' influence:'a; party).--Courts-- l L have held,that~the NRC:hasigreatidiscretion toEdecide wha'; t matters are and are not material toTits licensingfdecisions.. ? Siecel,,400: F.2dlat 783L 1 Generic Letter'88-'16 clearly.;indicatesEthe; view'of.the NRC: l Staff that cycle-specific parameterEvaluestare notLmateriald o-its111 censing decisions. Whenoitiissued Generic:Letteri88-16,1 the'NRC Staff.was fullylawareithatsitiwould norionger,! approve y cycle-specific parameter 1 values.asjpartiofL-its approvaliof ricense-amendmentLappli' cations = submitted in. connection'with fueli reloads. b Generic-Letter: 88-16-express'ed the,NRC-Staff'sJview-that;so long as Technical: Specifications.specify NRC-approved:. methodologies:used tofderive'suchLyaluestandia1 requirement that-t l l - the plant' operate within'those values,Jthere..is.no'needito approve:the actual' values. Thus,3theispecific values.of-- 7 i. - cycle-specific parameters are-not materia 1Lto-the*NRC's:llicensingi ~ decisions. 1.2/ 1 See Generic Letter 88-16. i 4 .3.- ,,..,,m.j#..,_,, .,J,,, f_,, ,,4m,,. y,.j;(,.,, g,_ _,.,,;,..,,_,. ,,,4 L-l '- --. 2.- _,.6 ,..4 m. +,.,,,

1-A comparison of the NRC's treatment of cycle-specific param-eter values with its treatment of the emergency preparedness exercises at issue in Union of Concerned Scientists, 735 F.2d 1437, further demonstrates that these values are not material to ] the NRC's licensing decisions. In Ur. ion of Concerned O lentists, the NRC conceded that emergency preparedness exercises had to be satisfactorily completed before the NRC would issue an operating license. Id. at 1438. Consequently, such exercises were found to be material to the NRC's licensing decision. In contrast, through Generic Letter 88-16, the NRC has clearly indicated that it does not need to approve cycle-specific parameter values. Therefore, these values are not material to its licensing decisions. Because the values of cycle-specific parameters are not material to the NRC's licensing decision, Section 189(a) of the Act does not guarantee the right to a hearing with respect to changes of these values. Thus, OCRE has no statutory right to a Section 189(a) hearing on changes to the values of PNPP's cycle-specific parameters once those values are removed from Technical Specifications. OCRE cr.nnot rightfully claim that relocating such values from PNPP's Technical Specifications into the COLR violates OCRE's rights ander Section 189(a). l

F B. Zyture Chances To The Values Of Cycle-Soecific Parame-ters Will Not Be De Facto License Amendments Entitlino. OCRE To A Section 189(a) Hearsno. 1 4 OCRE argues that: (c]hanges'to core operating limits,-with tacit approval by the NRC, will-give (Licensees] the authority to operate in ways in which they-otherwise could not. Thus, they are de facto license.. amendments, and the ~ public must have-not ice and opportunity 'to request a - hearing..Anything less ig,q' violation of Section 189a-of the Atomic Energy Act.M/ The ossence'of OCRE's argument is that inasmuch-as the-values of: cycle-specific parameters were part of PNPP's Technical Specifi-cations and OCRE had a Section_189(a) right to aihearing-with respect to changes of such values, OCRE will always-have a right ,t under Section'189(a) to such a hearing, whether the values are located in PNPP's Technical Specifications or in the-COLR. OCRE relies on Sholly v. NRC, 651 F.2d 780 (D.C. Cir. 1980), vacated on other arounda,.459 U.S. 1194 (1983), for the proposI-tion that the public.is entitled to notics-and an opportunity-for hearing when there i3'a de' facto li. cense amendment. OCRE's Brief at 6. In Sholly, the NRC issued an order allowing-the licensee to vent radioactive gas from-Three Mile Island Unit 2, something that could not be done'under the existing license. The NRC did 11/ OCRE's.Brief at 6. r i

not provide notice or an opportunity for hearing:on the venting order. The court held that an action which. grants a licensee the authority to do something it otherwise could not have done under-its existing license authority-is a license amendment within the scope of Section 189(a). An opportunity far hearing on the amendment was therefore required. Id.-at 791. Even if the Sholly decision has any remaining validity, OCRE's reliance on it is misplaced. In Sholl_y, the existing-license authority did not permit the licensee to release the radioactive gas in the manner permitted by the venting order. In l the instant case, however, the PNPP operating license authority has been amended to relocate the cycle-specific parameter values to the COLR, a document which can be changed without a license amendment. Thus, when the values of cycle-specific parameters-are changed in the future, no license ameadment wil'.-be needed. A,t that time, Licensees-will be doing what the'.r-license author-ity permits them.to do and therefore will not be taking any action which could be considered a de facto license amendment. i The right to a Section 189(a) hearing will not be triggered as it was in Sholly. l

~2_,,._.__. '~ - - - - ~ - - - ~ - - '~ l C. Verifyina Mathematical Calculations Is Not The Kind Of Matter As To Which Sectior.Jf9(a) Of The Act Guarantees A Hearina. As discussed above,_because the Technical' Specifications require that PNPP be operated in compliance with cycle-specific parameters determined in accordance_with NRC-approved methodolo-gies referenced in the Technical Specifications, the only right which OCRE is being denied as a result of the' amendment is the right to check Licensees' arithmetic'in derivingLthese. values.EA7 A hearing on such matters would be of little.value. In Union of concerned Scientists, 735 F.2d 1437, the~ court noted that "although the Act does.not provide'any exceptions to Section 189(a), . Congress did not mean to require a hearing l where a hearing serves no purpose." Id.-at'1449. 'To determine the scop /jof such an exception, the court looked to the Adminis-drative Procedure Act, 5 U.S.C.-S_554(a)(3)~(1982), which exempts from the formal hearing process-agency decisions _that rely solely on inspections, tests or elections because such methods of deter-mination do not lend themselves-to the hearing process. Id. Unlike the emergency preparedness exercises at issue in Union-of Concerned Scientists, 735 F.2d 1437.,-the arithmetic =used in calculating the values of cycle-specific _ parameters does not raise questions of credibility, conflicts, or sufficiency of-li/ See Section IIIB, supra.

l

.information, the ordinary -reasons for requiring a hearing.1E/ As OCRE, the NRL Staff and Licensees have agreed, neither-a substan-tial degree of discretion nor engineering judgment is involved in-deriving the values of cycle-specific parameters.EE/ Thus, none of the concerns expressed in Union of Concerned Scientists as reasons for requiring a hearing are present inLthe calculation of the values of cycle-specific parameters.- This straightforward mathematical calculation would' appear to be the kind of " test" Congress had in mind as being exempted'from the formal hearing requirements of the Administrative Procedure Act. Like the Administrative Procedure Act, Section 189(a) of the Act does not guarantee the right to a' hearing with respect.to such " tests." CONCLUSION It is clear that the Atomic Energy Act vestsithe NRC with I the authority to control the contents of Technical Specifica-tions. The values of cycle-specific parameters are not required-to be included in Technical Spec ications under Section 182(a) of the Act, 10 C.F.R. S 50.36, or the Troian decision. Conse-quently, Section 189(a) of the Act does not guarantee a right to 11/ See Union of Concerned Scientists, 735 F.2d at 1450 (emer-gency. preparedness exercises-involves a central decisionmaker's consideration and weighing of other persons' observations and first. hand experiences which give rise to questions of credibility, conflicts and sufficiency bringing into play the ordinary reasons for requiring-a hearing).. 16/ Stipulation of Agreed Facts at 5. 1 1

x.__.c.__.= = A a' hearing with respect to changes to such values if those~ values are no longer.includedLin a plant's Technical 1 Specifications. Section 189(~) of the'Act guarantees the public the rightito a a hearing only.on~ issues that'are material to.the'NRC's licensing _ decision. Although the NRC considersLit to be material whether approved. methodologies are being_used to calculate the valuesof cycle-specific parameters,-the. actual values of such parameters, are not. -Also, verification of mathematical-Jcomputations is=not-the-kind of issue'for which the Administrative'Precedure Act requires a hearing. For these and'alltthe other reasons < dis ' cussed above, OCRE's rights toia: hearing under Section 189(a) fare not violated by relocating the'valuestofLcycle-specific parame-ters-f rom PNPP's Techsica1. Specifications: to the COLR.' The Initial tecision' issued'by_: thel'Boardishould'be. affirmed, t

Respectfully submitted, SHAW,_PITTMAN,.POTTS1.&:TROWBRIDGE

'23001N Street, N.W. Washington, D~.C. _20037- [g E 73 Jay S lberg ' ' a -Daw ecker. l' Councel for Licensees-Dated:, January 23, 1991 -Be473 M 5430.90 -

f W '5 L A W :L% K W. u.~ s 2.2 2 =: p.:- o- ~g: i Ar.L ;i n U3hFC '91 JAN 24 A11:17 January 23, 1991 U8ITED STATEStOF AME'IDA R NUCLEAR REGUCATORYUCOMMISSION Before the Commission In the Matter of ) ) THE CLEVELAND ELECTRIC ) ILLUMINATING COMPANY, et al. ) Docket No. 50-440-OLA-2 ) ASLBP No. 90-605-02-OLA (Perry Nuclear Power Plant, ) Unit No. 1) ) ) CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Licensees' Brief in Response to Appellate Brief of Ohio Citizens for Respon-sible Energy, Inc. were mailed, postage prepaid, this 23rd day of Jsnuary, 1991 to those listed on the attached Service List, j D Ja lbe r'g ) Co el for Licensees J 8:473DM55430.90

January 23, 1991 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of ) ) THE CLEVELAND ELECTRIC ). -ILLUMINATING COMPANY, et al. Docket No. 50-440-OLA-2 ) ASLBP No. 90-605-02-OLA-(Perry Nuclear Power Plant, ) Unit No. 1) ) ) ' SERVICE LIST Chairmen Kenneth M. Carr Chairman-U.S. Nuclear Regulatory Atomic Safety'and Licensing Commission Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Commissioner Kenneth C. Rogers Washington, D.C. 20555 U.S. Nuclear Regulatory Commission John H. Frye, III,. Chairman Washington, D.C. 20555 Atomic Safety and Licensing Board Commissioner James R. Curtiss U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission . Commission Washington, D.C. 20555 Washington, D.C. 20505 Dr. Jerry R. Kline Commissioner Forrest-J. Remick Atomic Safety and Licensing U.S. Nuclear Pegulatory Board Commission U.S. Nuclear-Regulatory Washington, D.C. 20555-- Commission Washington, D.C. 20555 Docketing and Service Branch Secretary of the Commission Dr. Frederick J. Shon-U.S.-Nucl6ar Regulatory Atomic Safety.and Licensing Commission Board Washington, D.C.- 20555-U.S.: Nuclear Regulatory: Commission -Colleen P.--Woodhead, Esq. Washington, 0.C. 20555 Office of the General Counsel U.S. Nuclear Regulatory-Ms. Susan Hiatt Commission 8275 Munson Road Washington, D.C. 20555 Mentor,-Ohio 44060 i l j

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