ML20058K758

Licensee Motion for Reconsideration of Licensing Board Memorandum & Order (Granting Petition to Intervene).* Board Should Reconsider Finding Re Ohio Citizens for Responsible Energy,Inc.W/Certificate of Svc

ML20058K758
Person / Time
Site:	Perry
Issue date:	06/28/1990
From:	Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#390-10581 90-605-02-OLA, 90-605-2-OLA, OLA-2, NUDOCS 9007110153
Download: ML20058K758 (11)

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UNITED STATES OF AMERICA / .,

NUCLEAR REGULATORY COMMISSION # ooe D D JU ~

Before the Atomic Safety and Licensino Boar 2 8 1990 t

\ LJT[ a sec CH In the Matter of ) 4 THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al. ) Docket No. 50-440-OLA-2 f

) ASLBP No. 90-605-02-OLA >

(Perry Nuclear Power Plant, )

Unit No. 1) )

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LICENSEES' MOTION FOR RECONSIDERATION OF LICENSING BOAiD'S MEMORANDUM AND ORDER (GRANTING PETITION TO INTERVENE)

In its Memorandum and Order (Granting Petition to Intervene) dated June 11, 1990 (the " Board's Order"), the Atomic Safety and Licensing Board (the " Board") ruled that Ohio Citizens for Responsible Energy, Inc. ("OCRE") had standing to request a hear-ing on Licensees' application to amend the Technical Specifica-tions for the Perry facility. In addition, the Board tentatively concluded that OCRE had stated a valid (i.e. admissible) conten-

. tion. However, because the Board's reasoning that OCRE had ,

stated a valid contention extended beyond the arguments advanced

( by Licensees and the-NRC Staff, the Board deferred a final ruling l to permit Licensees and the NRC Staff the opportunity to move for reconsideration.

l Licensees are filing this motion for reconsideration on the grounds that (i) the Board's Order incorrectly determined that OCRE has standing to intervene, (ii) the Board's Order has

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F, improperly prejudged the merits of OCRE's contention, and (iii) the Board in recasting OCRE's contention has improperly exercised the authority granted to it under 10 CFR S 2.760a to raise issues sua sponte. '

1. Standino.

The Board appears to have found that OCRE has standing based upon the following reasoning:

a. NRC regulations permit contentions raising purely ,

legal issues;

b. OCRE has raised a purely legal issue;

c. Therefore, OCRE has standing.

Board's Order, p. 8. The Board's Order provides no other expla-nation nor citation to case law. Licensees respectfully submit that the recognition by the NRC that purely .; gal contentions may under certain conditions be admissible, cannot be read to wipe out the wholly separate obligation by a person requesting a hear-ing to demonstrate his or her standing. The Board's analysis has improperly intermingled the separate requirements of 10 CFR S 2.714 to demonstrate interest and the requirements to submit at least one admissible contention.

The right to intervene in a domestic licensing proceeding under Section 189.a of the Atomic Energy Act (the "Act") is gov-erned by judicial concepts of standing which require that a

petitioner show both (i) an injury in fact that will result from the proposed action and (ii) that the potential injury is within the zone of interests protected by the statute. Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1),

CLI-85-2, 21 NRC 282, 316 (1985). As stated in Licensees' Answer to OCRE's Fetition for Leave to Intervene and Request for Hear-ing, dated March 23, 1990, OCRE has not met either of these two tests for standing, and therefore does not have standing to intervene in this amendment proceeding. See Licer. sees' Answer at 7 Although the Board concluded tiat "OCRE has standing to request a hearing based on its allt.ged legal injury," Board's-Order at 8, the Board did not estr.blish that OCRE had met either prong of the standing test.

To establish standing, OCRE first has to show that it vill suffer an injury in fact if this license amendment is approved.

See, Nuclear Encineerino Company, Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 740 (1978). OCRE has failed to make such a showing. OCRE's only claim to injury in fact is that at some future time, Licensees may seek to modify the cycle-specific parameters limits, OCRE will request a hearing, and NRC will deny that request. But this injury is wholly speculative. There can be no injury if OCRE is 4

only being denied a "right" that it may not have or that.it may-not in the future seek to exercise.

Even if the Board still concludes that CCRE vould suffer an injury as a result of removing cycle-specific information from the Technical Specifications, OCRE's injury of being denied the right to a hearing is not within the zone of interests protected by the Act.1/ Therefore, OCRE does not have standing to inter-vene.

-The Act is specifically intended to protect the radiological health and safety of the general public. Viroinia Electric and Power Company (North Anna Power Station, Units 1 and 2),

ALAB-342, 4 NRC 98, 105 (1976). Standing based on the Act must be related to matters of health and safety. Drake v. Detroit Edison Co., 453 F. Supp. 1123, 1130 (W.D. Mich. 1978). Because the hearing being requested in this case re . .a lely to the right of OCRE to participate in future hea'ings and does not relate to any current health or safety ma tves, OC< alleged injury does not fall within the zone of in- e.sts prosseted by the Act.

1/ A comparable analysis, substituting environmental interests for health and safety interests, would govern a contention based upon NRC's responsibilities under the National Envi-ronmental Policy Act. Here, however, OCRE's contention is based on the Atomic Energy Act.

[ 2. Preiudoino the Merits b

c At this stage of the proceeding, the Board is to determine whether the petitioner has adequately demonstrated his or her standing and whether the petitioner has submitted a contention which meets the requirements of 10 C.F.R. 5 2.51.sf'O . It is inappropriate at the prehearing stage for the Board to address the merits of a contention; only a contention's admissibility is properly at issue. The Board may only look to the merits of a proposed contention to make the limited determination that "the contention, if proven, would be of no consequence in the proceed-ing because it would not entitle petitioner to relief." 10 C.F.R. 5 2.714(d)(2)(ii).

Licensees respectfully suggest that the Board's Order inap-propriately addresses the merits of OCRE's contention.2/ The Board states, " Clearly, cycle-specific parameter limits are nec-essary to obviate the possibility of an event which could immedi-ately threaten the public health and safety." Board's Order at 9-10. The statement in essence would seem to conclude - without benefit of briefing or analysis by the parties - that under cer-tain circumstances the information which Licensees propose to 2/ lt also appears to Licensees that the NRC Staff's May 18, 1990 analysis of OCRE's contention is more in the nature of an analysis of its merits than it is an evaluation of whether the contention is admissible. While Licensees agree with r.uch (if not all) of the Staff's merits analysis, we believe that such analysis is premature.

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remove from Technical Specifications cannot be removed without violating 10 C.F.R. 5 50.36, as interpreted by the Appeal Board-in Portland General Electric Comoany (Trojan Nuclear Plant),

ALAB-531, 9 NRC 263 (1979).

The Board may determine that OCRE has submitted an admissi-ble contention, meeting the requirements of 10 C.F.R. SS 2.714(b) and (e). Licensees indicated.that the contention met these stan-dards. Licensees' Answer to Ohio Citizens for Responsible Energy, Inc. Contention, dated May 9, 1990. However, since OCRE has not demonstrated that it has standing in this proceeding, the adequacy of the contention remains irrelevant. In any case, the Board cannot at this stage of the proceeding prejudge the merits of OCRE's contention.

3. Improper Exercise of Authority to Raise Issues Sua Soonte.

The sole contention proposed by OCRE is.that allowing Lic-ensees to remove cycle-specific information from the Technical Specifications would violate Section 189.a of the Act. OCRE Fil-ing of Contention, dated April 23, 1990, at 1. OCRE described

_a its issue.as "a pure issue of-law." Petition for Leave to Inter-vene, dated March 8, 1990 at 3. OCRE never suggested that the

. removal of this information from the Technical Specifications involved any safety conceras or required control over engineering discretion in setting cycle-spccific parameters. Furthermore, OCRE agreed with Licensees and the Staff that the removal of

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4 cycle-specific parameters from the Technical Specifications involvesJno significant hazard considerations.

In the present case, the Board has taken OCRE's issue and transformed it into something completely different. It is no longer "a pure issue of law." Instead, it has become in the Board's terminology, "a more recondite question of fact: To what-extent does the material to be included within the new technical specifications inexorably specify the new cycle-specific parame-ter limits which would be removed? If some engineering judgment is permitted, is it permissible under the Atomic Energy Act for CEI to exercise it?" Board's Order at 11. Such an assertion by the Board is outside the scope of the single issue of law raised by OCRE, and thus an exercise of the Board's authority to raise issues sua sconte.

The Board is given the authority to raise issues not raised by the parties to a proceeding if it determines "that a serious safety, environmental, or common defense and security matter exists." 10 CFR 2.760a. However, the Board does not have the

" authority to examine issues not put in controversy by the parties unless specific facts are brought to the Board's attention which indicate that there is a serious safety, environmental-or common defense and security matter. Louisiana Power & Licht Comoany (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 7 (1986). See also Texas Utilities Generatino comoany (Comanche

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w Peak Steam Electric Station, Units 1 and 2), CLI-81-36, 14 NRC r

lill, 1114 (1981) (a licensing board must make an affirmative-finding that a serious safety, environmental or common defense and security matter exists which has not been addressed-by the  !

parties before exercising its authority to raise issues sua sponte).

Because the Soard has not made an affirmative finding that

- this amendment proceeding involves any serious safety, environ-mental, or common defense and security matter, the Board cannot exercise its authority to raise issues sua sponte. The only mat-ter the Board can consider is OCRE's contention, whether permit-i ting Licensees to remove cycle-specific parameters from the Tech-nical Specifications-would as a matter of law deny OCRE the right to a-hearing to which it is entitled under the Act. Whether set-ting cycle-specific parameters-involves substantial engineering judgment.is beyond the scope of the contention-raised by OCRE and can only be considered by the Board in accordance with 10 CFR S 2.760a.

4. Conclusion OChE lacks standing to intervene in this amendment proceed- j ing because OCRE's alleged injury has nothing to do with radio-logical health and safety matters, which is what the Act is designed to protect. The Board has also apparently prematurely addressed the merits of OCRE's contention. And, improperly 1

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C exercising its-authority to raise issues sua sconte, the Board has metamorphosed OCRE's purely legal contention into an entirely different, fact-based issue. Such an action is not within the Board's authority granted under 10 CFR 2.760a.

For all these reasons, Licensees respectfully submit that the Board reconsider its finding that OCRE has standing to inter-vene in this license amendment proceeding and its tentative con-clusion that OCRE.has submitted an admissible contention.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037

/N D f Jay Coun iAberg For Licensees

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Dated: June 28, 1990 8:2520MB5430.90

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) ASLBP No. 90-605-02-OLA l (Perry Nuclear Power Plant, ) l Unit No.-1) )

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CERTIFICATE OF SERVICE I'hereby certify that copies of the foregoing Licensees' ,

Motion for Reconsideration of Licensing Board's Memorandum and i Order (Granting Petition to Intervene), were mailed, postage prepaid, this 28th day of June, 1990 to those listed on the ,

attached Service. List.  !

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! June 28, 1990-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board 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 Docketing and Service Branch Ms. Susan Hiatt Secretary of the Commission 8275 Munson Road U.S. Nuclear Regulatory Mentor, Ohio 44060 Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Colleen P. Woodhead, Esq. U.S. Nuclear Regulatory Office of the Ger.eral Counsel Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Dr. Jerry R. Kline Atomic Safety and Licensing Chairman Board Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Dr. Frederick J. Shon J Atomic Safety and Licensing John H. Frye, III, Chairman Board Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 B:252025430.90

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