ML20062K556

Answer Opposing Sunflower Alliance,Inc Et Al 820804 Motion for Reconsideration Or,In Alternative,Certification to Commission of Questions Re 820719 Order Dismissing Issue 10 on Psychological Stress.W/Certificate of Svc

ML20062K556
Person / Time
Site:	Perry
Issue date:	08/13/1982
From:	Willmore R CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8208170271
Download: ML20062K556 (8)

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. l82 AG016 N0:31 August 13' 1982 OtFfCE CF 3EC3ETARY DXHETUG & REa'c ORAfi:H UNITED STATES OF AMERICA .! i >' ,

NUCLEAR REGULATORY COMMISSION , '3* FM ' '. .

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Before the Atomic Safety and Licensind Board In the Matter of )

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THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL. ) 50-441

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

APPLICANTS' ANSWER TO MOTION BY SUNFLOWER ALLIANCE, INC. ET AL. FOR RECONSIDERATION, OR, IN THE ALTERNATIVE, CERTIFICATION TO THE COMMISSION On August 4, 1982, Sunflower Alliance, Inc. ~t e al.

(" Sunflower") filed a motion requesting the Licensing Board to reconsider its Memorandum and Order (Concerning Psychological Stress Contention) of July 19, 1982, dismissing Issue #10 from this proceeding. In the alternative, Sunflower asks the Licensing Board to certify the question to the Commission pursuant to 10 C.F.R. $ 2.718(i). The motion is without merit, and should be denied.

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Sunflower does not disagree with the Licensing Board's interpretation of the Commission's Statement of Policy con-cerning the psychological stress issue. 47 Fed. Reg. 31,762 (July 22, 1982). Rather, Sunflower describes the Commission's Statement of Policy as "sophmoric" [ sic) and " illegal," and asks the Licensing Board to disregard the Statement. Sunflower bases its request on two ar uments: that the Commission does not correctly construe People Against Nuclear Energy (" PANE")

v. United States Nuclear Regulatory Commission, 678 F.2d 222 (D.C. Cir. 1982); and, that the Commission is without authority 4

to direct licensing boards to dismiss psychological stress contentions. The simple answer'to both arguments is that whether the Commission is right or wrong in its analysis of PANE v. NRC, supra, the Licensing Board is obligated to follow the express dictates of the Commission.

Sunflower apparently believes that under PANE v. NRC, supra, psychological stress is litigable in any licensing proceeding in which it is raised. Whatever the validity of this assumption, some dispositive determination must now be made of how the decision impacts proceedings other than the TMI-l Restart. The Commission could have done nothing in this '

regard, and simply let individual licensing boards struggle with that question. The result most likely would have been chaotic, with different and potentially inconsistent standards j applied from proceeding to proceeding. Instead, the Conmission

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took the entirely sensible approach of providing an analysis of ,

PANE v. NRC, supra, and instructing licensing boards to deal with psychological stress issues accordingly.1/

At the core of Sunflower's dissatisfaction with the Commission's Statement of Policy lies a substantial misappre-ciation of the Commission's role in supervising the type and scope of issues that can be litigated before licensing boards.

Licensing boards are arms of the Commission, with certain delegated authority. See 10 C.F.R. S 2.785. The Commission retains the power, however, to supervise how that delegated authority is used, and, where necessary, provide appropriate guidance to licensing boards carrying out the Commission's statutory mandate.

The fact that the Commission retains such authority was made plain in its opinion in United States Energy Research and ,

Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 N.R.C. 67 (1976). There, interveners argued that the Commission could only review matters pursuant to its powers under 10 C.F.R. S 2.786(a). The, Commission rejected the argument as without merit, and described its supervisory authority in the following terms:

l 1/ The Commission's decision to interpret the impact of the decision is particularly appropriate since the issues raised j are ones of law, not fact. In this regard, see Public Servic,e Company of New Hampshire (Seabrook Station, Units 1 and 2),

CLI-77-8, 5 N.R.C. 503, 517 (1977) (remand to licensing board not necessary since raised questions are not fact-dependent).

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While 10 CFR 2.786(a) states the ordinary practice for review, it does not--and could not--interfere with our inherent supervisory authority over the conduct of adjudicatory proceedings before this Commission, including the authority to step in and rule on the admissibility of'a contention before a Licensing Board. See, Niagara Mohawk Power Corp.

(Nine Mile Point, Unit 2 ) , 6JAEC 995 (1973),  !

petition for review dismissed sub nom. Ecology [

Action v. AEC, 492 F.2d 998 (C.A. 2,1974). See  !

also, Consolidated Edison Co. (Indian Point -

Station, Units 1, 2, and 3), NRC 173 (1975). A .

contrary view could seriously dislocate the adjudicatory process within this agency and would imply a delegation of authority by the Commission difficult to justify. i In the interest of orderly resolution of disputes, there is every reason why the Commission should be empowered to step into a prpceeding and provide guidance on important issues of law and policy.

Id. at 75-76; accord, Consolidated Edison Company of New York (Indian Point, Unit 2), CLI-82-15, 16 N.R.C. , slip op. ,

at 11 (July 27, 1982).

Thes'e views were reiterated by the Commission one year e

later in Public Service Company of New Hampshire (Seabrook ,

Station, Units 1 and 2), CLI-77-8, 5 N.R.C. 503 (1977).

Quoting from its earlier Clinch River decisions the Commission made the following additional pertinent observation: ,

While we may deal with matters before us in adjudicatory hearings only on the basis of the ,

record which has been compiled, the Nuclear Regulatory Commission is not a court constrained to the " passive virtues" of judicial action, which can afford in every instance to wait for the '

t better-framed issue or fully developed argumenta-tion. We have a regulatory responsibility which includes the avoidance of unnecessary delay or excessive inquiry in our licensing proceedings.

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Nor can we regard the proceedings of our appellate and hearing tribunals with the detachment the Supreme Court may bring to trial and intermediate appellate action; the analogy is imperfect.  :

Ultimately the members of the' Commission are  !

responsible for the actions and po2 icy of this I agency, and for that reason we have inherent l authority to review and act upon any adjudicatory matter before a Commission tribunal--subject only  ;

to the constraints of action on the record and i reasoned explanation of the conclusions--con- i straints imposed on all agencies by the Congress. -

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Id. at 516; accord, Consolidated Edison Compan'y of New York  ;

(Indian Point, Unit 2), CLI-82-15, 16 N.R.C. , slip op.

at 11 (July 27, 1982). l t

These decisions clearly indicate that the Commission has the power and the responsibility,of providing guidance to its [

licensing boards where guidance will eliminate " unnecessary delay or excessive inquiry." It was this inherent power that the Commission exercised in issuing its Statement of Policy.2/  ;

There is nothing " illegal" or improper in the Commission exercising that power. The Motion for Reconsideration, therefore, should be denied. ,

In the alternative, Sunflower asks the Licensing Board to certify the question to the Commission. The Commission already j

2/ Sunflower's citation to K. Davis, Administrative Law l l Treatise 5 17.13 (2d ed. 1980), is inapposite. Although both l the NRC Rules of Practice and the Administrative Procedure Act [

give licensing boards the power to " regulate the course of the i hearing," there is a crucial distinction between regulating the f course of a hearing -- essentially a procedural function -- and T making policy decisions (such as what types of issues are liti-gable). Policy decisions are the inherent domain of the

, Commission, and nothing in Davis suggests the contrary.

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has spoken through its Statement of Policy.

Nothing could possibly be achieved through certification. Certification thus would be a waste of time and resources for all parties.

Sunflower's request for certification'to the Commission should be denied.

For the stated reasons, the motion for reconsideration, or, in the alternative, certification to the Commission, should be denied.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE

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By:

• Jay E. Silberg, P.C.

Robert L. Willmore Counsel for Applicants 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Dated: August 13, 1982 t

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r UNITED STATES OF AMERICA NUCLEAR REGULATORY NOMMISSION Before the Atomic Safety and Licensing Board In the Matter of ) ,

)

THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL. ) 50-441

)

(Perry Nuclear Power Plant, )

Units-1 and 2) )

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Applicants' Answer To Motion By Sunflower Alliance, Inc. et al. For Recon-sideration, Or, In The Alternative, certification To The Commission,"

were served by deposit in the U.S. Mail, First Class, postage pre-paid, this 13th day of August, 1982, to all those on the attached Service List.

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Robert L. Willmore Dated: August 13, 1982

r- , -mem .

D NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

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THE CLEVELAND ELECTRIC ) Docket Nos. 50-440

' ILLUMINATING COMPANY, et al. ) . 50-441

)

(Perry Nuclear Power Plant, )

Units 1 and 2 )

SERVICE LIST ,

Atomic Safety and Licensing Peter 3. Bloch, Chairman Atomic Safety 'and Licensing Board Appeal Board Panel U.S. Nucleir Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 .

Dr. Jerry R. Kline Docketing and Service Section Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Commission U'.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Frederick J. Shon Stephen H. Lewis', Esquire '

Offide of the Executive-

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Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Legal Director U.S. Nuclear Regulatory Commission Wahsington, D.C. 20555 Washington, D.C. 20555 Christine N. Kohl, Chairman Atomic Safety and Licensing Ms. Sue Hiatt Appea'l Board OCRE Interim Representative U.S. Nuclear Regulatory Commission 8275 Munson Avenue Washington, D.C. 20555 Mentor, Ohio 44060 Dr. John H. Buck Daniel D. Wilt, Esquire Atomic Safety and Licensing P. O. Box 08159 Appeal Board Cleveland, Ohio 44108 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Donald T. E :one, Esquire Assistant Prosecuting Attorney Gary J. Edles, Esquire Lake County Administration Center Atomic Safety and Licensing 105 Center Street Appeal Board Painesville, Ohio 44077 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 John G. Cardinal, Esquire Prosecuting Attorney Atomic Safety and Licensing Ashtabula County Courthouse Scard Panel Jefferson, Ohio 44047 j

U.S. Nuclear Regulatory Commission Washincton, D.C. 20555 i

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~ Terry Lodge, Esquire 915 Spitzer Building Toledo, Ohio 43604 l

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