ML20063L462

Motion for Summary Disposition.* Intervenors Request That Board Grant Summary Disposition Favorably & Issue Declaratory Relief by Finding Challenged Portion of Amend 45 to Be in Violation of Aea.W/Certificate of Svc

ML20063L462
Person / Time
Site:	Perry
Issue date:	02/07/1994
From:	Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY
To:	Atomic Safety and Licensing Board Panel
References
CON-#194-14696 OLA-3, NUDOCS 9403070024
Download: ML20063L462 (10)

Text

jp99 UNITED STATES OF AMERICA , ._

NUCLEAR REGULATORY COMMISSION $ld!"

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

) ,

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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MOTION FOR

SUMMARY

DISPOSITION Pursuant to 10 CFR 2.749 and the Licensing Board's Order of  :

December 27, 1993, intervenors Ohio Citizens for Responsible  ;

Energy, Inc. ("0CRE") and Susan L. Hiatt are herewith filing this motion for summary disposition on their contention. Intervenors have attached a " Statement of Material Facts as to Which No 1

Genuine Issue Exists to be Heard."

I. The Contention Intervenors' contention admitted by the Licensing Board is as follows:

The portion of Amendment 45 to License No. NPF-58 which removed the reactor vessel material specimen withdrawal schedule from the 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-drawal schedule.

Intervenors believe that.this issue involves a pure issue of law and that there are no factual disputes to be heard.

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II. Legal Analysis schedule The reactor vessel material specimen withdrawal 1 l

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

in nical Specifications and could not be changed without notice opportunity for a hearing, as required the Federal Register and  !

Since the issuance of by Section 189a of the Atomic Energy Act.

Amendment 45, the Licensees are now able to change the withdrawal participa-schedule without any public notice or opportunity for any revi-tion.

The NRC will still have to review and approve as required by 10 CFR 50 Appen-sions to the withdrawal schedule, dix H, Part II.B.3; the NRC's jurisdiction and enforcement powers

..t The only real effect of .

are not diminished by this amendment.

process.

this amendment is that the public is excluded from the the AEA, which that this is contrary to Intervenors believe ,

licit-i applies to de facto license amendments as well as those exp ly labeled as such. any ,

Section 189a of the Atomic Energy Act states that "(i)n revoking, .

proceeding under this Act for the granting, suspending,

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

whose sion shall grant a hearing upon the request of any person -

may be affected by the proceeding, and shall admit any interest Operating license such person as a party to such proceeding."

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

nity to present evidence and cross-examine witnesses.

decisions is available within the NRC by the Commission. 1 initial 5

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Judicial review of. final orders in operating license amendment-i proceedings is clearly established by statute. Atomic Energy 1

Act, Section 189b; Administrative Orders Review Act, 28 USC t

2342(4).

The Atomic Energy Act reflects a strong Congressional intent 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 af Concerned Scien- l tists z. BRC, 735 F.2d 1437, 1447 (D.C. Cir. 1984).

Now that Amendment 45 has been issued, the only mechanism available for public participation on this matter is through 10 CFR 2.206. However, this option does not provide meaningful participation, nor does it measure up.to the type of proceeding l 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-7 cense, or for any other action which may be appropriate. 10 CFR j 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 uit-nesses. There is no right under section 2.208 to appellate

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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.' t Circuit has ruled, a 2.206 request is not a Section 189a proceed-ing. Union 21 Concerned Scientista. z , ERG, 735 F. 2d 1437, .1443-4  !

(D.C. Cir. 1984).

Most significantly, judicial review is not available for l 4

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i denials of 2.206 petitions. QCHE.rm ERE, 893 F.2d 1404 (D.C.

Cir. 1990); Safe Enerny Coalition af Michigan Im ERG, 866 F.2d 1473 (D.C. Cir. 1989); Arnow Em REC, 868 F.2d 223 (7 th Cir. ,

1989); Massachusetts Public Interest Research Groun ym NRC, 852 F.2d 9 (1st Cir. 1988). These decisions have held that 2.206 i denials are not reviewable because they are " committed to agency ,

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."

Amendment 45 violates the Atomic Energy Act in that changes  !

to the reactor vessel material specimen withdrawal schedule, which the NRC's regulations make material by requiring prior-  !

I approval by the NRC, will be de facto license amendments, but j will not be formally labeled as license amendments and noticed as ,

1 such in the Federal Register with opportunity for a hearing.

l Clearly, the purpose of Amendment 45 is to evade the mandate. of I

.i 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  !

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, an action which grant's a licensee the authority to do something it otherwise could not have done under the existing license authority is a license amendment within the meaning of the Atomic Energy Act. Sholly y_ i 4

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1 EEG, 651 F.2d 780, 791 (D.C. Cir. 1980), vacated on other arounds, 459 U.S. 1194 (1983). Egg also Commonwealth 21 Massa- l chusetts z ERG, 878 F.2d 1516, 1521 (1st Cir. 1989): "the par-ticular label placed upon (its action) by the Commission is not I necessarily conclusive, for it is the substance of what the Commission has purported to do and has done which is decisive,"

citing Columbia Broadcastine System. Inc. y United States, 3 16 U. S. 407, 416 (1942).  !

Changes to the reactor vessel material specimen withdrawal-schedule, with 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 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 21 Concerned Scientists z HEC, 735 F.2d at 1444-1447.

III. Questions Posed by the Licensing Board i In its December 27, 1993 Order the Licensing Board posed -

three questions for the parties to analyze and discuss. Inter- .;

venors address these questions below.

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A. What is the relationship, if any, of 10 CFR 50.36 to the ,

petitioners ~ contention?  !

Intervonors believe that there is no relationship between 10 CFR 50.36 and the contention. The focus of the contention is not that the schedule must remain in the Technical Specifications, but rather that its removal from the license erodes public  !

hearing rights established by statute.

Intervonors are not insisting that the schedule be included in the Technical Specifications. Instead, intervonors are in-sisting that the NRC comply with the Atomic Energy Act by provid-ing notice and opportunity for a hearing on de facto license- l amendments.

i B. Under Part 50, Appendix H, II., B., 1. , are there any -

changes in the reactor vessel material surveillance program withdrawal schedule that would nat be reflected in the limiting j conditions of operation of the Perry facility?

Changes to the schedule might be indirectly reflected in the Ll title of TS Figure 3.4.6.1-1, " Reactor Vessel Pressure. Versus l Metal Temperature, Valid up to 8 EFPY" (Amendment 45). Presuma-bly the time period for which this graph is valid is related to the next scheduled specimen withdrawal time in the withdrawal l I

schedule..

However, intervenors believe~this question is not relevant.to l

the contention. The issue raised by intervenors is whether -the  !

NRC can deprive members of the public of hearing rights to any 6

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changes to the entire withdrawal schedule, a matter made material by the NRC's own regulations.

C. If, as posited in Generic Letter 91-01 (Jan. 4, 1991), the removal of the reactor vessel material surveillance program ,

withdrawal schedule from a facility's technical specifications will not result in any loss of clarity related to the require-ments of Part 50, Appendix H, how is the' removal of this duplicative matter from a facility's technical specifications violative of 10 CFR 50.36?-

Intervenors do not allege that removal of the schedule from the Technical Specifications violates 10 CFR 50.36. Nor does ,

intervenors' contention concern any potential losses of clarity '

or duplication of regulatory requirements. Intervenors' conten-tion only raises the issue of loss of public hearing rights. .

The- only real accomplishment of Generic Letter 91-01 and the challenged portion. of Amendment 45 is that .they cut. the  :

i public out of the process. Intervenors allege that this violates Section 189a of the Atomic Energy Act.

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IV. Relief Requested  !

Intervonors ask the Licensing Board to grant summary disposition in their favor and to issue declaratory relief by finding the challenged portion of Amendment 45 to be in violation of the Atomic Energy Act.

Respectfully submitted, d us f, > {

Susan L. Hiatt . -

Intervenor Pro Se and Representative of Ohio Citizens for Responsible Energy, Inc.

8275 Munson Road Mentor, OH 44060 ,2406 ,

(216) 255-3158 DATED: February '[ , 1994 ,

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4 STATEMENT OF HATERIAL FACTS AS TO WHICH l '

NO GENUINE ISSUE EXISTS TO BE HEARD I

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1. Prior to issuance of Amendment 45 to the Perry Nuclear Power '

Plant Unit 1 Operating License, NPF-58, the " Reactor Vessel l Material Surveillance Program - Withdrawal Schedule" was included ,

in the plant Technical Specifications as TS Table 4. 4. 6.1. 3- 1. j

2. Prior to the issuance of Amendment 45 to NPF-58, the Perry licensee could not make' changes to the withdrawa3 schedule with- l l

out seeking an operating license amendment, of which there would be notice in the Federal Register with the opportunity for inter- l ested persons to request a hearing. ,

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3. Amendment 45 to NPF-58, issued December 18, 1992, deleted the a

withdrawal schedule from the Technical Specificatiore and relo- l cated the schedule to.the Updated Safety Analysis Report.

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4. After the issuance of Amendment 45 to HPF-58, the Perry .

t licensee could make changes to the withdrawal schedule without {

seeking an operating license amendment, without any notice in the Federal Register, and without the opportunity for interested r

persons to request a hearing. However, pursuant to 10 CFR 50 ,

Appendix H, Part II. B. 3, the NRC must approve any reviaions to ,

l the withdrawal schedule.  ;

5. After the issuance of Amendment 45 to NPF-58. the only mecha- l t

nism available for members of the public to seek the institution l l

of a proceeding regarding any changes to the withdrawal schedule j io to file a petition pursuant to 10 CFR 2.206. j

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. i CERTIFICATE OF SERVICE  !

.This is to certify that copies of the foregoing were served by. i deposit in the U.S. Mail., first class, postage prepaid, this l

'7 * day of 5'En 'q/ ,

1994, to the following: i Office of the Secretary l Docketing and Service l U.S. Nuclear Regulatory Commission i Washington, DC 20555  !

t Administrative Judge l Thomas S. Moore, Chairman Atomic Safety and Licensing Board l U. S. Nuclear Regulatory Commission l Washington, DC 20555  ;

i Administrative Judge  !

Dr. Richard F. Cole Atomic Safety.and Licensing Board  ;

Nuclear Regulatory Commission  :

U. S.

Washington, DC 20555 J Administrative Judge Dr. Charles N. Kelber Atomic Safety and Licensing Board j U.S. Nuclear Regulatory Commission Washington, DC 20555 Colleen P. Woodhead, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 Jay E. Silberg , Esq. l Shaw, Pittman, Pottr. and Trowbridge -l 2300 N Street, NW J Washington, DC 20037

, su YY4C Susan L. Hiatt

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