ML20058K755

Intervenor Motion for Reconsideration of Appeal Board Order Setting Oral Argument.* Requests That Appeal Board Move Oral Argument Scheduled for 900710 in Bethesda,Md to Miami,Fl. Certificate of Svc Encl

ML20058K755
Person / Time
Site:	Turkey Point
Issue date:	06/24/1990
From:	Lorion J CENTER FOR NUCLEAR RESPONSIBILITY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#390-10574 OLA-4, NUDOCS 9007110147
Download: ML20058K755 (8)

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DOCHETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 30 dN 28 P2 :01 ATOMIC SAFETY AND LICENSING APPEAL BOARD}CEgi 7 T!{ti.]

.itn e In the Matter of ) Docket Hos. 50-250-OLA-4

) 50-251-OLA-4 Florida Power & Light Co. )

) (Pressure / Temperature Limits)

Turkey Point Nuclear Plant )

Units 3 and 4) )

)

INTERVENORS' MOTION FOR RECONSIDERATION OF APPEAL BOARD ORDER SETTING ORAL ARGUMENT Intervenors, the Center for Nuclear Responsibility and Joette Lorion, hereby file thic Motion for Reconsideration of the Atomic Safety and Licensing Appeal Board Order dated Mcy 29, 1990, which scheduled Oral Argument in the above captioned proceeding to be held in Bethesda, Maryland.

Intervenors, who do not have the benefit of legal counsel, are prepared to address the Appeal Board concerning the issues involved in this proceeding but are unable to travel to Bethesda, Maryland to do so. Intervenors, who are asking this Appeal Board to overturn the Licensing Board's decision in this proceeding so that the very important issue of pressure vessel embrittlement of the Turkey Point reactor pressure vessels can be addressed, contend that fundamental fairness, due process of law, and the spirit of the Atomic Energy Act dictate that the Oral Argument scheduled for July 10, 1990, should be held in Miami, Florida.

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First, Intervenors contend that fundamental fairness should ,

require the oral Argument to be held in Miami, Florida. The  !

citizen intervenors in this proceeding, an1 ce the Licensee and the NRC Staff, do not have financial resources available to them that would allow them to travel to Bethesda, Maryland.

Intervenors in this proceeding, the Center and Joette Lorion, ,

simply do not have the funds to enable Joette Lorion, who is representing the Center Pro Se, to travel to Bethesda to present Oral Argument.

Additionally, Ms. Lorion's responsibilities on behalf of I l

her daughter, Dara, who is on summer vacation and to her clients would make it difficult to travel to Maryland at this time even if the Center did have the funds necessary to support such a trip. Due to the disparity of financial resources between the Center and the other parties, the Center contends that it would be unfair to Ms. Lorion and the citizens w'hom Ms.

Lorion represents in her capacity as Director of the Center to l hold the Oral Argunsent outside of the Miami area.

i Second, it appears that Intervenors' right to due process of law would be violated if for geographical reasons they are unable to present their views at Oral Argument. As stated above, Joette Lorion, who is representing the interests of the Center Pro Se, will be unable to travel to Bethesda, Maryland for oral Argument. Intervenors contend that the holding of the oral Argument in Bethesda, Maryland without giving Intervenors

(3) a fair opportunity to be heard in some fashion would violate their right to procedural due process.

Intervenors contend that the administrative law process should provide a just opportunity for participation to the economically powerless, as well as the powerful. Inte rvenors ,

who are merely citizens attempting to protect their interests '

in.this proceeding, did not anticipate that they would ever have to travel outside their geographical area as part of the NRC licensing process, and they do not have the funds to do so. Intervenors do not believe that they should be prevented from participating in any aspect of a citizen intervention proceeding because of economic hardship.

Il a Kansas Law Review article entitled " Equal Rights for Citizens Before Administrative Agencies," the author, John M.

Simpson addresses the importance of citizen participation in NRC operating license proceedings: "If the administrative process before agencies is to be meaningful and if the interest ,

of the public is to be determined and protected, it is absolutely essential that citizens participate. This participation can prevent the administrative record from reflecting primarily these facts put forth by the regulated industry. Unless the record contains a balance of industry and consumer views, it is very difficult for any agency to rule in favor of citizens, even if the agency has a predisposition to do so." Kansas Law Review, Vol . 33, p. 503 (1985).

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While Intervenors are aware that 10 C.F.R. Part 2, Appendix A, IX (e), anticipates that Oral Argument by the Appeal Board will be held in Bethesda, Maryland or Washington, D.C., it does not prohibit Oral Argument from being held in Miami, Florida, the geographical area that will be directly affected by the Appeal Board's decision. ,

While Intervenors are cognizant of the fact that the holding of the Oral Argument in Miami, Florida, may cause some inconvenience to the Appeal Board, Intervenors believe that j holding the Oral Argument in Bethesda would deprive them of their right to procedural due process because they would not be able to participate.  ;

"Due process in administrative hearings does not yield to administrative convenience or expediency, or because of a natural desire to be rid of harassing delay." Ohio Bell IgleDhone Co. v. Public Utilities Commission of Ohio, 301 U.S.

292, 305 (1937).

Third, and most important, Intervenors contend that the l spirit of the Atomic Energy Act, which provides for citizen i

particpation in nuclear safety decisions that could affect the l

health and safety of those citizens, should dictate that any l portion of a proceeding concerning licensing and/or NRC judicial decisions that could affect the public health and I

safety should be held in the geographical zone of interest where the citizens who will be affected by those decisions

(5) live, just as Licensing Board proceedings are.

The holding of the Appeal Board oral Argument in Bethesda, Maryland, will prevent those citizens whose interests will be affected by the Appeal Board's decision from participating - a right provided them by the Atomic Energy Act.

Therefore, for all the above stated reasons, the Intervenors, the Center for Nuclear Responsibility and Joette Lorion, request that this Appeal Board move the oral Argument scheduled for July 10, 1990, in Bethesda, Maryland to Miami, Florida.

Alternatively, if the Appeal Board denies Intervenors' request to move the Oral Argument to Miami, Florida, Intervenors request that the Appeal Board allow Intervenors to participate in the Oral Argument by telephone or some other method that the Appeal Board considers fair and equitable that will allow Intervenors a fair opportunity to be heard.

Finally, Intevenors wish to reiterate for the record the

fact that this proceeding centers on the very important safety issue of pressure vessel embrittlement - a condition that could l

l lead to meltdown of the reactor core in the absence of i

l conservatisms in calculating the true operating condition of

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the Turkey Point reactor pressure vessel. As this Appeal Board is aware, the phenomenon of pressure vessel embrittlement is an  ;

unresolved safety issue before the NRC and is currently under study by them. The importance of this issue is evidenced by i

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n (6) the fact that on May 24, 1990, the Advisory Committee on Reactor Safeguards (ACRS) held a meeting in West Palm Beach, Florida, to discuss reactor pressure vessel embrittlement. 1/

In light of this, is it too much to ask that a proceeding that concerns pressure vessel embrittlement at the Turkey Point nuclear plant be held in Miami, Florida ?

In closing,:Intervenors wish to thank the Appeal Board members for their for consideration of these issues.

Intervenors wish to apologize to the Appeal Board for filing this motion so late, but Joette Lorion who is representing the center had personal concerns that prevented her from filing earlier.

Respectfully submitted, T ( L, I A Joette Lorion Director, Center for Nuclear Responsibility 7210 Red Road #207B Miami, Florida 33143 (305) 661-2165 1/ Despite the fact that the topic of the ACRS meeting that was held in West Palm Beach a 'Ay 24, 1990, addressed pressure vessel embrittlement, the technical issue that is the subject matter of this proceeding, Intervenors were not given notice of the May 24, 1990, meeting by the NRC Staff nor have they been provided a copy of the transcript of the meeting even though Turkey Point was one of the plants discussed.

Dated: June 24, 1990 JL/jl 1079J l

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c POLMETED UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD

(#'CT DF SECRfiAriv In the Matter of 90CKEiiNG 4 S[ivVlf1

) BRANCH

) Docket Nes. 50-250-OLA-4 Florida Power & Light Co. ) 50-251-OLA-4

)

(Turkey Point Nuclear Plant ) (Pressure / Temperature Limits)

Units 3 and 4) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of "Intervenors' Motion for Reconsideration of Appeal Board Order setting Oral Argument" have been served on the following parties by deposit in the United States Mail, postage prepaid, on.the date shown below:

Christine N. Kohl Harold F. Reis, Esquire Atomic Safety & Licensing Steven P. Frantz Appeal Board Newman & Holtziner, P.C.

U.S. Nuclear Regulatory Commission 1615 L. Street NW #1000 Washington, D.C. 20555 Washington, D.C. 20036 Howard A. Wilber John T. Butler, Esquire Atomic Safety & Licensing Steel, Hector & Davis Appeal Board 4000 S.E. Financial Center U.S. Nuclear Regulatory Miami, Florida 33131 Commission i Washington, D.C. 20555 Office of the Secretary U;S. Nuclear Regulatory Thomas S. Moore Commission I Atomic Safety & Licensing Washington, D.C. 20555 Appeal Board U.S. Nuclear Regulatory Thomas Saporito Jr.

Commission Nuclear Energy Accountability y

Washington, D.C. 20555 Project 1202 Sioux Street Patricia Jehle, Esquire Jupiter, Florida 33458 Office of the General Counsel U.S. Nuclear Regulatory c. 1 Commission g'(){ Q GV I P l l Washington, D.C. 20555 j

Joette Lorion, Director ]

Dated: June 24, 1990 Center for Nuclear Responsibility '

7210 Red Road #217

) Miami, Florida 33143 L (305) 661-2165 3 L (305) 662-2600 i l

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1 Additional copies were sent tot Congressman Dante B. Fascell '

2354 Rayburn House Office Building l Washington, D.c. 20515 Representative Peter Kostmayer 123 Cannon House Office Building  : j Washington, D.C. 20515 Senator Bob Graham 't 241 Dirksen Senate office Building Washington, D.C. 20510 '

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