Similar Documents at Perry |
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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20212J1581999-09-30030 September 1999 Order Approving Transfer of License & Conforming Agreement. Orders That License Transfer Approved,Subj to Listed Conditions ML20205D4901999-02-22022 February 1999 Transcript of 990222 Informal Public Hearing on 10CFR2.206 Petition in Rockville,Md.Pp 1-105.Supporting Documentation Encl ML20198D9711998-11-0909 November 1998 Petition Per 10CFR2.206 Requesting That Facility Be Immediately Shut Down & OL Be Suspended or Modified Until Such Time That Facility Design & Licensing Bases Properly Updated to Permit Operation with Failed Fuel Assemblies ML20155F4561998-08-26026 August 1998 Demand for Info Re False Info Allegedly Provided by Wh Clark to Two NRC Licensees.Nrc Considering Whether Individual Should Be Prohibited from Working in NRC-licensed Activities for Period of 5 Yrs ML20236V5261998-07-20020 July 1998 Computer Access & Operating Agreement Between Cleveland Electric Illuminating Co & NRC PY-CEI-NRR-2284, Comment Opposing Proposed Generic Communication, Lab Testing of Nuclear-Grade Activated Charcoal1998-05-21021 May 1998 Comment Opposing Proposed Generic Communication, Lab Testing of Nuclear-Grade Activated Charcoal ML20216B5111998-04-0909 April 1998 Order Imposing Civil Monetary Penalty.Denies Request for Remission of Violation C,Ea 97-430 & Orders Licensee to Pay Civil Penalty in Amount of $50,000 within Next 30 Days PY-CEI-NRR-2269, Comment on Proposed Rule 10CFR50.NRC Should Demonstrate That Not Only Is Code Process Flawed,But That Proposed Change Justified from Cost Versus Safety Protective1998-04-0303 April 1998 Comment on Proposed Rule 10CFR50.NRC Should Demonstrate That Not Only Is Code Process Flawed,But That Proposed Change Justified from Cost Versus Safety Protective ML20216G3821998-03-11011 March 1998 Order Approving Application Re Merger Agreement Between Duquesne Light Co & Allegheny Power Systems,Inc ML20217J0661998-03-11011 March 1998 Order Approving Application Re Merger Agreement Between Dqe, Inc & Allegheny Power System,Inc ML20198P9311997-11-0707 November 1997 Comments of American Municipal Power-Ohio,Inc.NRC Should Require Allegheny Power Sys,Inc to Affirm That Capco Antitrust License Conditions Will Be Followed ML20134L3401997-01-22022 January 1997 Resolution 96-R-85, Resolution Supporting Merger of Centerior Energy Corp & Ohio Edison Under New Holding Co Called Firstenergy ML20133B6941996-12-18018 December 1996 Submits Ordinance 850-96 Re Approval of Merger of Centerior & Oh Edison Into Firstenergy ML20135F4731996-12-0606 December 1996 Memorandum & Order CLI-96-13.* Commission Reverses & Vacates ASLB LBP-95-17 Which Granted Motion for Summary Disposition Submitted by Ocre & Hiatt.W/Certificate of Svc.Served on 961206 ML20132A8461996-12-0202 December 1996 Resolution 20-1996 Supporting Merger of Ohio Edison & Centerior Corp Under New Holding Company Called Firstenergy ML20134M6191996-10-28028 October 1996 Proclamation of Support by City of Sandusky,Oh Re Merger of Ohio Edison and Centerior Energy Corp ML20112J8281996-06-18018 June 1996 Licensee Reply Brief on Review of Licensing Board Decision LBP-95-17.* W/Certificate of Svc ML20112D8721996-05-29029 May 1996 Intervenor Brief in Support of Commission Affirmation of LBP-95-17.* Commission Should Affirm Licensing Board Decision.W/Certificate of Svc ML20108D9571996-05-0303 May 1996 CEI Response to City of Cleveland 2.206 Petition.Nrc Should Deny Petition ML20108B7571996-04-26026 April 1996 Licensee Brief on Review of Licensing Board Decision LBP-95-17.* Recommends That Commission Reverse Board Memorandum & Order Issued 951004.W/Certificate of Svc & Svc List PY-CEI-NRR-2034, Comment Opposing Proposed Rule 10CFR20 Re Reporting Requirements for Unauthorized Use of Licensed Radioactive Matl1996-03-11011 March 1996 Comment Opposing Proposed Rule 10CFR20 Re Reporting Requirements for Unauthorized Use of Licensed Radioactive Matl ML20101B5841996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement Or,In Alternative,For Severance of Issue & Expedited Hearing Procedures.W/Certificate of Svc ML20097B8721996-01-23023 January 1996 Petition of City of Cleveland,Oh for Expedited Issuance of Nov,Enforcement of License Conditions & Imposition of Appropriate Fines,Per 10CFR2.201,2.202,2.205 & 2.206 ML20097B8911996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement or in Alternative,For Severance of Issue & Expedited Hearing Procedures ML20096E2471996-01-0303 January 1996 Comment on PRM 50-64 Re Stockpiling Ki for Use as Thyroid Protectant in Event of Nuclear Accident.Supports Distribution of Ki to Public ML20094N1951995-11-17017 November 1995 Oh Edison Application for License Transfer in Connection W/ Sale & Related Transactions ML20094M5941995-11-15015 November 1995 Intervenors Answer to Licensees Petition for Review.* Intervenor Conclude That Commission Should Not Review Board Decision.W/Certificate of Svc ML20094J9141995-11-0707 November 1995 Petition for Review.* Submits That Commission Review of Board Decision Appropriate Under 10CFR2.786. W/Certificate of Svc & Svc List ML20093N9491995-10-23023 October 1995 Licensee Request for Extension of Time to File Petition for Review.* Requests That Commission Grant Extension Until 951107 of Deadline for Filing Petition for Review. W/Certificate of Svc ML20065L3571994-04-0505 April 1994 Intervenors Answer to NRC Staff Response to Intervenors Motion for Summary Disposition & Licensees Cross Motion for Summary Disposition.* Urges Board to Deny Licensee Cross Motion.W/Certificate of Svc ML20064N6341994-03-21021 March 1994 Affidavit of RW Schrauder in Support of Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.W/Certificate of Svc ML20064N6081994-03-21021 March 1994 Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.* Moves for Decision in Licensee Favor on Ocre Contention ML20064N9201994-03-21021 March 1994 Affidavit of RW Schrauder in Support of Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition. W/Svc List ML20063L4621994-02-0707 February 1994 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 ML20058P4451993-12-13013 December 1993 Licensee Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Supplemental Petition for Leave to Intervene.* W/Certificate of Svc ML20059L9391993-11-12012 November 1993 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 ML20059B1421993-10-19019 October 1993 Order.* Petitioners Shall File Supplemental Petition in Accordance W/Schedule in 931018 Order.W/Certificate of Svc. Served on 931020 ML20059B1761993-10-18018 October 1993 Order.* Informs That for Each Contention,Petitioners Shall Comply Fully W/Requirements of 10CFR2.714(b)(2)(i),(ii) & (III) & Their Filing Should Address Requirements Set Forth in Regulations.W/Certificate of Svc.Served on 931019 ML20059B0701993-10-12012 October 1993 Motion to Defer Consideration of Remanded Issue.* Requests That Licensing Board Defer Consideration of Remanded Issue Pending Outcome of Commission Review of 2.206 Process.W/ Certificate of Svc ML20058M8761993-09-30030 September 1993 Memorandum & Order CLI-93-21.* Appeal for Hearing Re Amend to Plant OL Denied.W/Certificate of Svc.Served on 930930 ML20057C0461993-09-21021 September 1993 Supplemental Director'S Decision DD-93-15 Involving 920929 Request for Certain Actions to Be Taken Re Proposed Construction of Interim onsite,low-level Radioactive Waste Facility at Plant.Request Denied ML20056C8951993-07-19019 July 1993 Order Extending Time within Which Commission May Rule on Petitions for Review of LBP-92-32.W/Certificate of Svc. Served on 930720 ML20045B5661993-06-0707 June 1993 Comment Re Proposed Generic Communication on Mod of TS Administrative Control Requirements for Emergency & Security Plans,As Published in Fr on 930401 (58FR17293).Believes Concept of Technical Review Not Addressed by STS ML20044E2781993-05-13013 May 1993 Comment Supporting Petition for Rulemaking PRM-50-58 Re VEPCO Petition to Change Frequency of Emergency Planning Exercise from Annual to Biennial ML20127A6171993-01-0606 January 1993 Order.* Time within Which Commission May Rule on Petitions for Review of Board Order LBP-92-32,dtd 921118,extended Until 930208.W/Certificate of Svc.Served on 930106 ML20126D5171992-12-23023 December 1992 City of Brook Park Answer to Petitions for Review.* Opposes Applicants 921208 Petitions for Review Based on Fact That ASLB Decision in proceeding,LBP-92-32,adequately Addressed Issues Raised in Petitions.W/Certificate of Svc ML20126F6501992-12-23023 December 1992 Answer of City of Cleveland,Oh,Intervenor,In Opposition to Petitions for Review of 921118 Decision of Aslb.* Petitioners Petitions for Review Should Be Denied. Certificate of Svc Encl ML20126D5461992-12-23023 December 1992 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Limited Petition for Review of City of Cleveland,Oh of 921118 Decision of Aslb.* Commission Should Deny City of Cleveland Petition.W/Certificate of Svc ML20126D5781992-12-23023 December 1992 Answer of American Municipal Power-OH,Inc in Opposition to Petitions for Review of Oh Edison Co & Cleveland Electric Illuminating Co/Toledo Edison Co.* W/Certificate of Svc ML20126D5801992-12-23023 December 1992 NRC Staff Answer in Response to Petitions for Review Filed by Oh Edison Co,Cleveland Electric Illuminating Co,Toledo Edison Co & City of Cleveland.* W/Certificate of Svc 1999-09-30
[Table view] Category:PLEADINGS
MONTHYEARML20198D9711998-11-0909 November 1998 Petition Per 10CFR2.206 Requesting That Facility Be Immediately Shut Down & OL Be Suspended or Modified Until Such Time That Facility Design & Licensing Bases Properly Updated to Permit Operation with Failed Fuel Assemblies ML20112J8281996-06-18018 June 1996 Licensee Reply Brief on Review of Licensing Board Decision LBP-95-17.* W/Certificate of Svc ML20112D8721996-05-29029 May 1996 Intervenor Brief in Support of Commission Affirmation of LBP-95-17.* Commission Should Affirm Licensing Board Decision.W/Certificate of Svc ML20097B8721996-01-23023 January 1996 Petition of City of Cleveland,Oh for Expedited Issuance of Nov,Enforcement of License Conditions & Imposition of Appropriate Fines,Per 10CFR2.201,2.202,2.205 & 2.206 ML20101B5841996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement Or,In Alternative,For Severance of Issue & Expedited Hearing Procedures.W/Certificate of Svc ML20094M5941995-11-15015 November 1995 Intervenors Answer to Licensees Petition for Review.* Intervenor Conclude That Commission Should Not Review Board Decision.W/Certificate of Svc ML20094J9141995-11-0707 November 1995 Petition for Review.* Submits That Commission Review of Board Decision Appropriate Under 10CFR2.786. W/Certificate of Svc & Svc List ML20093N9491995-10-23023 October 1995 Licensee Request for Extension of Time to File Petition for Review.* Requests That Commission Grant Extension Until 951107 of Deadline for Filing Petition for Review. W/Certificate of Svc ML20065L3571994-04-0505 April 1994 Intervenors Answer to NRC Staff Response to Intervenors Motion for Summary Disposition & Licensees Cross Motion for Summary Disposition.* Urges Board to Deny Licensee Cross Motion.W/Certificate of Svc ML20064N6081994-03-21021 March 1994 Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.* Moves for Decision in Licensee Favor on Ocre Contention ML20063L4621994-02-0707 February 1994 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 ML20058P4451993-12-13013 December 1993 Licensee Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Supplemental Petition for Leave to Intervene.* W/Certificate of Svc ML20059B0701993-10-12012 October 1993 Motion to Defer Consideration of Remanded Issue.* Requests That Licensing Board Defer Consideration of Remanded Issue Pending Outcome of Commission Review of 2.206 Process.W/ Certificate of Svc ML20126D5781992-12-23023 December 1992 Answer of American Municipal Power-OH,Inc in Opposition to Petitions for Review of Oh Edison Co & Cleveland Electric Illuminating Co/Toledo Edison Co.* W/Certificate of Svc ML20126D5801992-12-23023 December 1992 NRC Staff Answer in Response to Petitions for Review Filed by Oh Edison Co,Cleveland Electric Illuminating Co,Toledo Edison Co & City of Cleveland.* W/Certificate of Svc ML20126D5171992-12-23023 December 1992 City of Brook Park Answer to Petitions for Review.* Opposes Applicants 921208 Petitions for Review Based on Fact That ASLB Decision in proceeding,LBP-92-32,adequately Addressed Issues Raised in Petitions.W/Certificate of Svc ML20126D5461992-12-23023 December 1992 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Limited Petition for Review of City of Cleveland,Oh of 921118 Decision of Aslb.* Commission Should Deny City of Cleveland Petition.W/Certificate of Svc ML20126F6501992-12-23023 December 1992 Answer of City of Cleveland,Oh,Intervenor,In Opposition to Petitions for Review of 921118 Decision of Aslb.* Petitioners Petitions for Review Should Be Denied. Certificate of Svc Encl ML20126D4761992-12-22022 December 1992 Alabama Electric Cooperative Answer to Applicants Petitions for Review.* Applicants 921208 Petitions for Review Should Be Denied.W/Certificate of Svc ML20126A5871992-12-0808 December 1992 Petition for Review.* Requests That NRC Review ASLB 921118 decision,LBP-92-32.Board Erroneously Interpreted Section 105(c) of AEA by Ignoring Fundamental Underplanning of Statute.Certificate of Svc Encl ML20126A5751992-12-0808 December 1992 Petition for Review.* Requests That NRC Review LBP-92-32, 921118 Board Decision in Proceeding.Board Erroneously Interpreted Section 105(c) of AEA by Ignoring Fundamental Underpinning of Statute.W/Certificate of Svc ML20126A7651992-11-18018 November 1992 Limited Petition for Review of City of Cleveland,Oh of 921118 Decision of Aslb.* City of Cleveland Petition for Review Should Be Granted.W/Certificate of Svc ML20116M4671992-11-16016 November 1992 Licensee Response to Lake County Commissioners 10CFR2.206 Petition.* Petition Should Be Denied.Certificate of Svc Encl ML20116E7941992-09-29029 September 1992 Petition for Action to Relieve Undue Risk Posed by Const of Low Level Radwaste at Perry Plant.* Requests Public Hearing Be Held Prior to Const of Storage Site & Const Should Be Suspended Until NRC or Util Produces EIS on Risks ML20101N5131992-07-0808 July 1992 City of Cleveland Opposition to Applicant Request That Licensing Board Disregard Certain Arguments of City of Cleveland Counsel in Oral Argument.Certificate of Svc & Svc List Encl ML20101N6401992-07-0707 July 1992 Reply by American Municipal Power-Ohio,Inc to Applicant Request That Board Disregard Factual Issues.* Applicant Requests Board Disregard Irrelevant Assertions by All Parties.W/Certificate of Svc ML20101K2101992-06-29029 June 1992 Applicants Request That Licensing Board Disregard Factual Issues Discussed During Oral Argument.* Foregoing Issues Represent Factual Issues Which Board Should Disregard in Disposition of Phase One of Case.W/Certificate of Svc ML20098D5181992-05-26026 May 1992 Reply of City of Cleveland,Oh to Arguments of Applicants & NRC Staff W/Respect to Issues of Law of Case,Res Judicata, Collateral Estoppel & Laches.* W/Certificate of Svc & Svc List ML20096A6281992-05-0707 May 1992 Applicants Reply to Opposition cross-motions for Summary Disposition & Responses to Applicants Motion for Summary Disposition.* Applicants Conclude NRC Has No Authority to Retain Antitrust Licensing Conditions.W/Certificate of Svc ML20090F4261992-03-31031 March 1992 Motion for Summary Disposition of Intervenor,City of Cleveland,Oh & Answer in Opposition to Applicant Motion for Summary Disposition.* City of Cleveland,Oh & Applicant Motions Should Be Denied.W/Certificate of Svc ML20094K3791992-03-18018 March 1992 Applicants Motion to Amend Summary Disposition Schedule.* Applicants Request That Motion to Amend Summary Disposition Schedule Be Granted.W/Certificate of Svc ML20094J2891992-03-0909 March 1992 Response of DOJ to Applicant Motion for Summary Disposition.* Urges ASLB to Resolve Bedrock Legal Issue in Negative & Concludes That Commission Possess Legal Authority to Retain License Conditions.W/Certificate of Svc ML20091N1241992-01-24024 January 1992 Applicants Answer to Cleveland Motion to Amend Schedule for Summary Disposition Motions.* Applicants Have No Objection to Request for Opportunity to Submit Reply.W/Certificate of Svc ML20087E7821992-01-16016 January 1992 Motion to Amend Schedule for Summary Disposition Motions.* Cleveland Requests That Motion Be Granted & 911114 Order Establishing Schedule for Motions for Summary Disposition Be Amended.W/Certificate of Svc & Svc List ML20086U5371992-01-0606 January 1992 Applicants Motion for Summary Disposition.* Requests That Board Grant Applicants Motion for Summary Disposition Due to Lack of NRC Authority to Retain Antitrust License Conditions.W/Certificate of Svc ML20086J4821991-12-31031 December 1991 Reply Brief of City of Cleveland,Oh in Support of Notice of Appeal of Prehearing Conference Order Granting Request for Hearing.* Appeal Should Be Granted,Ref to Board Revoked & Applications Dismissed.W/Certificate of Svc ML20086Q9231991-12-27027 December 1991 Motion of City of Cleveland,Oh for Leave to File Reply & Reply to Applicants Answer to City Motion for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision.W/Certificate of Svc ML20086Q3001991-12-24024 December 1991 Applicant Answer to Motion of City of Cleveland,Oh for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision. * W/Certificate of Svc ML20091H7161991-12-19019 December 1991 Motion of City of Cleveland,Oh for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision.W/Certificate of Svc ML20086N4601991-12-17017 December 1991 Licensees Response to Ohio Citizens for Responsible Energy, Inc & SL Hiatt Amended Petition for Leave to Intervene.* Determines That Intervenor Failed to Demonstrate Interest in Proceeding.W/Certificate of Svc & Svc List ML20086J4741991-12-0909 December 1991 Motion of City of Cleveland,Oh for Leave to File Reply Brief.* Motion to File Reply Should Be Granted for Listed Reasons ML20086G4001991-11-26026 November 1991 Ohio Edison Co Motion for Reconsideration.* Util Respectfully Requests That NRC Vacate CLI-91-15 & Direct Forthwith Answer to Licensee Motion to Compel.W/Certificate of Svc ML20079Q0301991-11-0606 November 1991 Oec Motion to Compel NRC Staff to Respond to Interrogatories.* Util Moves Board to Compel NRC to Respond Completely,Explicitly & Properly to Licensee Interrogatories.W/Certificate of Svc ML20083B5841991-09-0606 September 1991 Licensee Answer to Oh Citizens for Responsible Energy,Inc & SL Hiatt Petition for Leave to Intervene & Request for Hearing.* Ocre Has Shown No Interest in Proceeding.W/Notice of Appearance,Certificate of Svc & Svc List ML20076D1611991-07-18018 July 1991 Answer of Ohio Edison Co to Petition of American Municipal Power-Ohio,Inc (AMP-Ohio) for Leave to Intervene.* Util Does Not Object to Admission of AMP-Ohio as Intervenor on Basis of Status as Beneficiary.W/Certificate of Svc ML20076D0481991-07-18018 July 1991 Answer of Cleveland Electric & Toledo Edison to Petition of American Municipal Power-Ohio for Leave to Intervene.* Utils Believe That 910703 Petition Should Be Granted.W/Certificate of Svc ML20081K8961991-06-20020 June 1991 Alabama Electric Cooperative Reply to Oppositions Filed to Petition to Intervene.* Informs of Util Intention to Assure Vindication of Proper Legal Principle.W/Certificate of Svc ML20079D2391991-06-17017 June 1991 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Opposition of City of Cleveland,Ohio,To Hearing W/Respect to Denial of Applications to Suspend Antitrust License Conditions & Petition to Intervene.* ML20079D2211991-06-17017 June 1991 Answer of Ohio Edison Co to Opposition of City of Cleveland, Oh to Hearing W/Respect to Denial of Applications to Suspend Antitrust License Conditions & Petition to Intervene in Event Hearing Requested & Granted.W/Certificate of Svc ML20079D2161991-06-14014 June 1991 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Petition of Alabama Electric Cooperative,Inc for Leave to Intervene.* AEC Has Not Met Burden of Satisfying Regulatory & Common Law Requirements.W/Certificate of Svc 1998-11-09
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.- UNITED 3TATES OF AMERICA 00CKETE01 NUCLEAR REGULATORY COMMISSION USHRC Before the Atomic Safety and Licensing Board
- 4 M912 P 3 :35' In the Matter of )
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THE C'LEVELAND ELECTRIC ) UFFICE OF SECREIAilY
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OLA3Cgc'IP"T ILLUMINATING CO. et al. Docket No. 50-440
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(Perry Nuclear Power Plant, )
Unit 1) )
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INTERVENORS' ANSWER TO NRC STAFF RESPONSE TO INTERVENORS' MOTION FOR
SUMMARY
DISPOSITION AND LICENSEES
SUMMARY
DISPOSITION Pursuant to the Licensing Board's Order of February 16, 1994, intervenors Ohio Citizens for Responsible Energy, Inc.
("0CRE") and Susan L. Hiatt are herewith filing this answer to the NRC Staff's response to intervenors' motion for summary disposition and Licensees' cross motion for summary disposition.
Intervenors have attached a " Statement of Material Facts as to Which No Genuine Issue Exists to be Heard" in response to Licen-sees' cross motion.
I. Answer to NRC Staff's Response The NRC Staff has failed to comply with the procedural requirements of 10 CFR 2.749 because the Staff did not include in its response the required separate, short statement of material ~
facts.
10 CFR 2.749 (a) states that a party opposing a motion for summary disposition "shall annex to any answer opposing the motion a separate, short, and concise statement of the- material 9404210035 940405 $
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facts as to which it is contended there exists a genuine' issue to be heard. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement reauired 12 ha served by the opposing party." (Emphasis added.)
This language is clearly mandatory and not optional. In-deed, the failure to include the short, separate statement is fatal. Pacific Gaa and Electric Gam (Stanislaus Nuclear Project, Unit 1), LBP-77-45, 6 NRC 159, 163 (1977). Therefore, interven-ors would urge the Licensing Board to reject the NRC Staff's response, and, as required by 10 CFR 2. 749 (a) , admit all the material facts set forth in intervenors' statement.
In the event that the Licensing Board does choore to consid-er the NRC Staff's response, intervenors are replying to the arguments set forth therein. To the extent that arguments made by the Staff are duplicated by Licensees in their Answer and Cross Motion, intervenors' discussion below should be considered as responsive to the positions of both parties.
The NRC Staff cites the Appeal Board's decisions in Portland General Electric Ga (Trojan Nuclear Plant), ALAB-531, 9 NRC 263-(1979), Commonwealth Edison Ga_ (Zion Station, Units 1 and 2),
ALAB-616, 12 NRC 419 (1980), and Cleveland Electric Illuminatinn Ga_ (Perry Nuclear Power Plant, Units 1 and 2), ALAB-831, 23 NRC 62 (1986). These decisions concerned the requirements of the Atomic Energy Act, Section 182a, and_10 CFR 50.36 regarding the contents of technical specifications. Intervenors believe these decisions are irrelevant to the instant case. Intervenown -are 2
i
g not alleging that 10 CFR 50.36' requires the material withdrawal schedule to be in the plant technical specifications. Interven-ors' contention is solely concerned with the loss of public hear-ing rights which results when items such as the schedule are removed from the license.
The Staff claims that "Intervenors" admission that removal of the withdrawal schedule does not violate the requirements of 10 CFR 50.36 is fatal to their Motion. The fundamental question at issue here is whether the withdrawal schedule is required by law or regulation to be included in the TS." Staff Response at
- 14. That is not the fundamental question in this case. The fundamental question is: "When is a regulatory or licensing action an amendment within the meaning of Section 189a of the Atomic Energy Act?" (1)
The Staff would apparently answer this question, "Whenever the NRC says it is." I. e. , the only hearing rights possessed by the public are those which the NRC graciously decides to give them. But such a cavalier attitude is at odds with the judicial interpretation of Section 189a given in Sholly 1 REG, 651 F.2d 780,- 791 (D.C. Cir. 1980), vacated an other Ernunds, 459 U.S.
1194 (1983): an action which grants 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.
(1) Compare Licensees' Answer and Cross Motion at 22: '"The cen- ,
tral question presented is whether a right to a hearing . exists after a provision has been removed from Technical. Specifications-regardless of the other regulatory limits which remain."
3
.i l
)
l The fact that 10 CFR 50 Appendix H requires that licensees submit the schedule and that the NRC approve the schedule prior i l
1 to implementation clearly means that changes to the schedule meet the test of Shollv and thus are license amendments.
To evade this obvious conclusion, the Staff offers an inven-tive interpretation of Appendix H.
In the affidavit filed with their response, the Staff affiants explain that if a licensee makes changes to its withdrawal schedule which are consistent-with ASTM E 185-79 or -82, it may do so without prior NRC approv-al. Only if the licensee's proposed changes are inconsistent with this standard would the schedule need prior approval. Staff Affidavit at 8. Despite the convenience of this explanation- to the instant case, the fact remains that the plain language of Appendix H requires licenace submittal of the schedule and prior NRC approval of the schedule before implementation.
II. Answer to Licenseos' Cross Motion Licensees correctly state that "Section 189a of the Act nuaranteen the public an opportunity for a hearing with _ respect to all license and license amendment applications."
Licensees' Answer and Cross Motion at 4, emphasis added. However, this guarantee means little if the NRC can vanish these hearing oppor-tunities through semantic sleight-of-hand.
Licensees cite Bellotti. t REG, 725 F.2d 1380 (D.C. Cir.
1983) as an example of judicial approval of NRC denial of hearing rights based on the NRC's own definition of what -constituted a license amendment proceeding. However, an examination of the court's reasoning in Bellotti shows that heavy reliance was 4
placed on the availability of the 10 CFR 2.206 petition process as a meaningful alternative. " Petitioner Bellotti is in no sense left without recourse . . . Commission denials to institute proceedings under section 2.206 are subject to Judicial review.
[ citations omitted] . . . A petition is not a futile gesture, for the Commission may not deny it arbitrarily." 725 F.2d at 1382-
- 83. Of course, Bellotti was decided in 1983, before the Supreme-Court's decision in Reckler rm Chanev, 470 U.S. 821 (1985), the ,
application of which to the 2. 206 process has virtually eliminat-ed Judicial review of NRC denials of such petitions. Since a major premise of the court's rationale in Bellotti has been undermined, it can hardly be considered a persuasive authority in the post-Chancy _ world.
Licensees state that "0CRE's underlying argument that it is entitled to a hearing any time Licensees modify plant operations in a manner within regulatory standards would establish intervon-ors as the regulators." Licensees' Answer and Cross Motion at
- 22. Intervenora do not seek to supplant the NRC as the regulator of nuclear energy. Indeed, it is absurd to equate the right to a hearing with the possession of regulatory authority. Rather, intervenors seek to retain their rights to p'articipate in the regulatory process. " Congress vested in the public, as well as i the NRC Staff, a role in assuring safe operation of nuclear power plants." Union af Concerned Scientists z~ BRC, 735
- F.2d 1437, 1447 - (D. C. Cir. 1984). Intervenors cannot fulfill this role if hearing opportunities are being systematically eroded away by-the practice of removing materials from plant licenses such .that 5
changes to the materials so removed will no longer be officially deemed license amendments.
Licensees characterize intervenors' position as "once a Tech Spec, always a Tech Spec." Licensees' Answer and Cross Motion at
- 12.
- Intervenors do not dispute the NRC's authority to determine the contents of the technical specifications. Nor do interven-ora object to the goal of improving and simplifying plant techni-cal specifications. Intervenora do object to the " side effect" associated with the NRC's practice of removing items from the plant Tech Specs. This side effect, which does not appear to have been seriously considered by the agency, is that when ite ms are removed from nuclear plant licenses, the universe of poten-tial license amendment cases is diminished. Instead of the opportunity for a fair hearing before the Atomic Safety and Licensing Board, public participants are left with the 2.206 petition as the only mechanism for challenging revisions to the materials so removed. With the lack of Judicial review of 2.206 cases in the post-Chanev world , the 2.206 petition is not a meaningful public participation option. "The . Commission is entitled to great freedom in its efforts to structure its pro-coedings so as to maintain their integrity while ensuring mean-l ingful public participation, but ann of lin goals must ha to assure that there in. meaningful nublic particination." UCS..
supra, 735 F.2d at 1446, citation omitted (emphasis in original) .
, Licensees claim that " Generic Letter 91-01 clearly indicates the view of the NRC Staff that the withdrawal schedule is not material to its licensing-decisions." Licensees' Answer and
- Crous Motion at 16. However, 10 CFR 50 Appendix H clearly makes 6
.the schedule material by requiring its submittal and approval prior to implementation, notwithstanding the Staff's attempt to amend Appendix H by affidavit. The fact that Appendix H requires submittal and NRC approval of the schedule unquestionably estab-lishes that the schedule in., in the words of Licensees, "so substantial and important as to influence the NRC 's decision."
Generic Letter 91-01 does not alter the materiality of the sched-ule. The only accomplishment of Generic Letter 91-01 is to cut the public out of the process. But this result cannot be sus-tained by the Licensing Board, since, by Licensees' own admis- '
sion, Section 189a of the Atomic Energy Act does guarantee the right to a hearing on material issues. Licensees' Answer and >
Cross Motion at 14, citing ECE. supra. ,
III. Conclusion For the foregoing reasons, intervenors urge the Licensing Board to deny Licensees ' Cross Motion and to grant intervenors' motion for summary disposition.
Respectfully submitted, pn f GdaZD Susan L. Hiatt '
i Intervenor Pro Se and Representative of Ohio Citizens for Responsible Energy, Inc.
8275 Munson Road Mentor, OH 44060-2406 (216) 255-3158 1
DATED: April AI , 1994 7
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STATEMENT OF HATERIAL FACTS AS TO WHICH No GENUINE ISSUE EXISTS T0 BE HEARD
- 1. Prior to issuance of Amendment 45 to the Perry Nuclear Power Plant Unit 1 Operating License, HPF-58, the " Re ar,to r Vessel Material Surveillance Program - Withdrawal Schedule" was included in the plant Technical Specifications as TS Table 4.4.6.1.3-1,
- 2. Prior to the issuance of Amendment 45 to NPF-58, the Perry licensee could not make changes to the withdrawal schedule with-out seeking an operating license amendment, of which there would be notice in the Federal Register with the opportunity for' inter-ested persons to request a hearing.
- 3. Amendment 45 to NPF-58, issued December 18, 1992, deleted the withdrawal schedule from the Technical Specifications and relo-cated the schedule to the Updated Safety Analysis Report.
- 4. After the issuance of Amendment 45 to NPF-58, the Perry 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 persons to request a hearing. However, pursuant to 10 CFR 50 Appendix H, Part II. B. 3, the NRC must approve any revisions to the withdrawal schedule.
l S. After the issuance of Amendment 45 to NPF-58. the only mecha-nism available for members of-the public to seek the institution of a proceeding regarding any changes to the withdrawal schedule
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is to file a petition pursuant to 10 CFR 2.206.
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CERTIFICATE OF SERVICE This is to certify that copies of the foregoing were served by deposit in the U.S, Mail, first class, postage prepaid, this TV ^ day of i&Per l , 1994, to the following:
t Office of the Secretary Docketing and Service ena U.S. Nuclear Regulatory Commission 87 v3 Washington, DC 20555 pg "
a Administrative Judge SE @ !$ E5 Thomas S. Moore, Chairman "n -
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Atomic Safety and Licensing Board $ *<S OM U. S. Nuclear Regulatory Commission Washington, DC 20555
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Administrative Judge BW
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Dr. Richard F. Cole Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Dr. Charles N. Kolber Atomic Safety and Licensing Board 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.
Shaw, Pittman, Potts, and Trowbridge 2300 N Street, NW Washington, DC 20037 J n ! Y 1. TY' Susan L. Hiatt 3
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