ML20059L939

Petitioners Supplemental Petition for Leave to Intervene.* Court Held That NRC May Not Eliminate Public Participation on Matl Issue in Interest of Making Process More Efficient. W/Certificate of Svc

ML20059L939
Person / Time
Site:	Perry
Issue date:	11/12/1993
From:	Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY
To:	Atomic Safety and Licensing Board Panel
References
CON-#493-14471 OLA-3, NUDOCS 9311180020
Download: ML20059L939 (7)

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NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board '93 13/ 16 P 3 :01 {

In the Matter of )- '

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) i THE CLEVELAND ELECTRIC ILLUMINATING CO. et al. ) Docket No. 50-440 OLA-3  !

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(Perry Nuclear Power Plant, Unit 1) )

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PETITIONERS' SUPPLEMENTAL PETITION FOR LEAVE TO INTERVENE Pursuant to the Licensing Board's Order of October 18, 1993, Petitioners Ohio Citizens for Responsible Energy, Inc. ("0CRE")

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and Susan L. Hiatt are herewith filing the contention, with ,

supporting bases, which they seek to raise in this proceeding.

I. The Contention ]

Petitioners are raising one contention, which involves a pure issue of law, and thus, should be determined on the basis of l briefs or oral argument, pursuant to 10 CFR 2. 714 (e):  ;

The portion of Amendment 45 to License No. NPF-58 shich removed -

the reactor vessel material specimen withdrawal schedule from the :i plant Technical Specifications to the Updated Safety Analysis -

Report- violates Section 189a of the Atomic Energy Act (42 USC 2239a) in that it deprives members of the public of the right .to .

notice and opportunity for a hearing on any changes to the with- .l drawal schedule.

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II. The Requirements of 10 CFR 2. 714 (b) (2)  !

Pursuant to the Licensing Board's Order, Petitioners are  ;

providing the information required by the three subparts of 10 f'

9311180020 931112 PDR G

ADOCK 05000440-PDR 1

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i CFR 2.714 (b) (2) seriatim. 2 1

l A. 10 CFR 2. 714 (b) (2) (i) f, CFR 2. 714 (b) (2) (i) requires "a brief explanation of the 10  ;

bases of the contention," which is as follows. 1 vessel material specimen withdrawal schedule .:

The reactor  !

Tech-subject to Amendment 45 has traditionally been part of the  ;

nical Specifications and could not be changed without notice in  ;

Federal Register and opportunity for a hearing, as required the i by Section 189a of the Atomic Energy Act. Since the issuance of <

Amendment 45, the Licensees are now able to change the withdrawal f schedule without any public notice or opportunity for participa-l The NRC will still have to review and approve any revi-  !

tion. i sions to the withdrawal schedule, as required by 10 CFR 50 Appen-dix H Part II.B.3; the NRC's jurisdiction and enforcement powers 1 The only real effect of not diminished by this amendment.

are i amendment is that the public is excluded from the process.  !

this this is contrary to the AEA, which Petitioners believe that t

applies to de facto license amendments as well as those explicit-ly labeled as such.

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B. 10 CFR 2. 714 (b) (2) (ii) the  !

10 CFR 2.714 (b) (2) (ii) requires "a concise statement of alleged facts or expert opinion which support the contention and' j

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on which the petitioner intends to rely in-proving the contention l i

at the hearing .

" Clearly this subpart applies to issues of l 1

fact, and therefore, is not applicable to pure issues of law such  :

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. as that raised by Petitioners. ,

1 C. 10 CFR 2.714 (b) (2) (iii)  !

10 CFR 2. 714 (b) (2) (iii) requires " sufficient'information i on a material issue of law or fact." This is set forth below. j Section 189a of the Atomic Energy Act states that "(i)n any proceeding under this Act for the granting, suspending, revoking,  ;

or amending any license or construction permit . . . the Commis-

• i sion shall grant a hearing upon the request of any person whose  :

interest may be affected by the proceeding, and shall admit any.  ;

such person as a party to such proceeding." Operating license i P

amendment proceedings under the Act are formal, on-the-record adjudicatory proceedings, conducted pursuant to the NRC's rules of practice in 10 CFR Part 2, where the parties have the opportu- ,

nity to present evidence and cross-examine witnesses. Review of initial decisions is available within the NRC by the Commission.

Judicial review of final orders in operating license amendment l 1

proceedings is clearly established by statute. Atomic Energy 1 Act, Section 189b; Administrative Orders Review Act, 28 USC i 2342(4).

I The Atomic Energy Act reflects a strong Congressional intent  !

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to provide for meaningful public participation. " Congress vested  :

in the public, as well as the NRC Staff, a role in assuring safe operation of nuclear power plants." Union of Concerned Scien-l tists z. HEC, 735 F. 2d 1437, 1447 (D.C. Cir. 1984).

Now that Amendment 45 has been issued, the only me - '.anism 1 available for public participation on this matter is through 10 1

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2.206. However, this option does not provide meaningful CFR participation, nor does it measure up to the type of procacding afforded by Section 189a. This regulation permits any person to file a request with the Executive Director for Operations seeking to institute a proceeding to suspend, revoke,.or modify a li-cense, or for any other action which may be appropriate. 10 CFR 2.206 does not give the requester the right to a hearing, and simply filing a request under section 2.206 does not give the requester the right to present evidence and cross-examine wit-nesses. There is no right under section 2.206 to appellate review within the agency; while the Commission, at its own dis-cretion, may review a director's decision, petitions for review of same are not to be entertained. 10 CFR 2. 206 (c) . As the D.C.

Circuit has ruled, a 2.206 request is not a Section 189a proceed-ing. Union of Concerned Scientists zm NRC, 735 F.2d 1437, 1443-4 (D.C. Cir. 1984). ,

l Most significantly, judicial review is not available for  !

denials of 2.206 petitions. OCRE z NRC, 893 F.2d 1404 (D.C. .

Cir. 1990); Safe Enerav Coalition af Michican z NRC, 866 F.2d 1473 (D.C) Cir. 1989); Arnow z NRC, 868 F.2d 223 (7th Cir.

1989); Maseachusetts public Interest Research Grour z NRC, 852 F.2d 9 (1st Cir. 1988). These decisions have held that 2.206 denials'are not reviewable because they are " committed to. agency I

discretion by law." 5 USC 701(a) (2) . This provision of the Administrative Procedure Act was interpreted by the Supreme Court in Heckler z. Chanev, 470 U.S. 821 (1985), to include those agency actions in which the governing statute provided no mean-ingful standards for judicial review, i. e. , "no law to apply."

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Amendment 45 violates the Atomic Energy Act in that changes  ;

reactor vessel material specimen withdrawal schedule, '

to the which the NRC's regulations make material by requiring prior approval by the NRC, will be de facto license amendments, but j will not be formally labeled as license amendments and noticed as such in the Federal Register with opportunity for a hearing.

Clearly, the purpose of Amendment 45 is to evade the mandate of l the Atomic Energy Act by calling these amendments by another'name-to avoid invoking the notice and hearing provisions of the Act, [

However, the law cannot be so easily evaded. Section 189a i

requires notice and opportunity for hearing on de facto license amendments as well as for those actions explicitly labeled as amendments. As the D.C. Circuit has held, as action which grants j F

a licensee the authority to do something it otherwise could not i S

have done under the existing license authority is a license l amendment within the meaning of the Atomic Energy Act. Shollv z. l REC, 651 F.2d 780, 791 (D.C. Cir. 1980), vacated on other j erounds, 459 U.S. 1194 (1983). See also Commonwealth of Marsa- 1 chusetts 2 REC, 878 F. 2d 1516, 1521 (1st Cir. 1989): "the par-  !

ticular label placed upon (its action) by the Commission is not necessarily conclusive, for it is the substance of w.at the Commission has purported to do and has done which is decisive,

citinc Columbia Broadcastine System- Inc I. United States, 316 l l

U.S. 407, 4 16 (1942).

Changes to the reactor vessel material specimen withdrawal y i

schedule, with approval by the NRC, will give Licensees the authority to operate in ways in which they otherwise could not.

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Thus,. they are de facto license amendments, and the public must have notice and opportunity to request a hearing. Anything- less is in violation of the Atomic Energy Act.

In Generic Letter 91-01, the NRC justifies the removal of the withdrawal schedule from the Technical Specifications as eliminating an unnecessary duplication of controls which are established through 10 CFR 50 Appendix H. However, the D.C.

Circuit has addressed the question of whether the NRC may elimi-nate public participation on a material issue in the interest of making the process more efficient. The Court held that it may not. Union af Concerned Scientists z ERC 735 F.2d at 1444-1447.

III. Relief Requested Petitioners ask the Licensing Board to issue declaratory relief by finding the challenged portion of Amendment 45 to be in violation of the Atomic Energy Act.

Respectfully submitted, v y U Susan L. Hiatt Petitioner Pro Se and Representative of Ohio Citizens for Responsible Energy. Inc.

8275 Munson Road Mentor, OH 44060-2406 (216) 255-3158 DATED: November 12, 1993 6

CERTIFICATE OF SERVICE j This is to certify that copies of the foregoing'were served by i deposit in the U.S. Mail, first class, -postage prepaid, this  !

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/1 5A day of Alevouew-/t , 1993, to the following-i Office of the Secretary Docketing and Service U. S. Nuclear Regulatory Commission .

Washington, DC 20555 p-

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t Administrative Judge $ 5 c I Thomas M. Moore, Chairman IE

[. El i Atomic. Safety and Licensing Board ~;

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' l U.S. Nuclear Regulatory Commission ( .a l Washington, DC 20555 m  ;: to  ;

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=. . c. l Administrative Judge j

Richard F. Cole Atomic Safety and Licensing Board  ;

U.S. Nuclear Regulatory Commission l Washington, DC 20555 l I

h Administrative Judge  ;

Charles N. Kelber  ;

j Atemic Safety and Licensing Board '

U. S. Nuclear Regulatory Commission ,

Washington, DC 20555 Colleen P. Woodhead, Esq. 1 Office of the General Counsel l U.S. Nuclear Regulatory Commission  !

Washington, DC 20555 l Jay E. Silberg, Esq. )

Shaw, Pittman, Potts, and Trowbridge i 23n0 N Street, NW Waunington, DC 20037 l l

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Susan L. Hiatt i l

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