ML20070R282
| ML20070R282 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 01/24/1983 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8301270381 | |
| Download: ML20070R282 (8) | |
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4 DQKETfD D JAN 26 A11 :0 January 24, 1983 1
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i UNITED STATES OF AMERICA RC f,';;WiAW NUCLEAR REGULATORY COMMISSION 23.' fcif#IT 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)
)
APPLICANTS' ANSWER TO OCRE MOTION FOR CLARIFICATION OF THE LICENSING BOARD'S MEMORANDUM AND ORDER (JANUARY 4, 1983)
By motion of January 7, 1983, Intervenor Ohio Citizens for Responsible Energy ("OCRE") requests the Licensing Board to."[re-tain] jurisdiction over NEPA issues in this proceeding" until the United States Court of Appeals for the Sixth Circuit has ruled on Intervenor Sunflower Alliance Inc., et_ al.'s (" Sunflower's")
petition to review the Nuclear Regulatory Commission's Statement of Policy on psychological stress.
OCRE's " motion for clarifica-i tion" is in effect a motion for reconsideration of the Licensing Board's Order dismissing Issue No. 10, concerning psychological stress, from this proceeding.
As such, the motion is both un-timely and without merit, and should be denied.
OCRE characterizes its motion as a " motion for clarification",
yet expresses no uncertainty about the meaning of the Licensing 4
Board's January 4, 1983, Memorandum and Order (Concerning Motion for a Stay).
Since OCRE is simply disputing the substance of the 1
8301270381 830124 PDR ADOCK 05000440 ch Q
PDR D
. Licensing Board's ruling, rather than asking for clarification, its motion is more in the rature of a motion for reconsideration.
The significance of this discrepancy lies in the fact that i
OCRE asks for entirely different relief than Sunflower did in its December 29, 1982 Motion To Stay Proceedings.
Whereas Sunflower asked for a stay of this proceeding as a whole pending the Sixth l
Circuit's decision, OCRE asks that the Licensing Board allow Issue No. 10 to continue to be litigated even if all other issues in the proceeding have been decided.
In effect, OCRE is requesting that the Licensing Board reconsider its decision to dismiss Issue No. 10.
This relief would be improper for a number of reasons.
First, the request is untimely in the extreme.
In its July 19, 1982 Memorandum and Order (Concerning Psychological Stress Conten-tion), the Licensing Board required that any motions for recon-sideration must be filed within 20 days of receipt of the order.
Sunflower timely filed a motion for reconsiderationb! and OCRE filed a.n answer in support of the motion.2/
Sunflower's motion for reconsideration was denied by the-Licensing Board.
See Memorandum and Order (Motion for Reconsideration or Certification),
dated August 30, 1982.
OCRE's latest filing on this issue is for all practical purposas a motion for reconsideration of the Licensing Board's denial of Sunflower's motion for reconsideration.
i 1/
Motion by Sunflower Alliance Inc., et al., for Reconsideration or in the Alternative Motion to Certify to the Commission, dated August 4, 1982.
2/
OCRE Reply to Motion by Sunflower Alliance Inc. et al. for Reconsideration or in the Alternative Motion to Certify to the Commission, dated August 12, 1982.
. This process cannot be permitted to go on ad infinitum.
Both OCRE and Sunflower have had ample opportunity to be heard on the issue of whether psychological stress can be litigated in this proceeding.
As the Licensing Board has recently said: "If motions for reconsideration may be filed at any time, then the work of the Board could be unduly hindered."
Memorandum and Order (Concerning Reconsideration and Dismissal of Hydrogen Con-trol Contention), dated December 13, 1982, at 2.
Second, it is doubtful whether OCRE even has standing to file its Motion for Clarification.
Sunflower was designated lead i
intervenor on Issue No. 10 by the Licensing Board.
See Memoran-dum and Order (Concerning Motions to Admit Late Contentions),
dated July 12, 1982, at 12.
Sunflower apparently saw no need for the Licensing Board to clarify its decision not to stay the pro-ceedings, let alone to reconsider its original decision not to retain jurisdiction over Issue No. 10.
OCRE's action, therefore, surely violates the intent, if not the letter, of the Licensing Board's rules for allocating responsibilities between the inter-venors.
See Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 N.R.C.
- 175, 231 (1981).
Third, for the Licensing Board to retain jurisdiction over Issue No. 10, even after all other issues have been decided, would create the same kinds of procedural problems raised by OCRE's
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. Motion to Stay Dismissal of Issue #2, dated April 20, 1982.
See Applicants' Response to Motion to Stay Dismissal of Issue #2,.
dated April 26, 1982.
See Applicants' Response to Motion to Stay Dismissal of Issue #2, dated April 26, 1982, at 2-3.
The Licensing Board emphatically rejected OCRE's argument with respect to Issue No. 2 that the Licensing Board should stay dismissal "because of the possibility that a court may sometime in the future decide that [the Commission's final rule on financial qualifications] has been improperly promulgated."
Memorandum and Order (Concerning Motion to Dismiss Financial Qualifications Contention), dated April 28, 1902.
Precisely the same reasoning applies to Issue No. 10.
OCRE insists, nevertheless, that if the Licensing Board refuses to reconsider its decision to dismiss Issue No. 10, there may be no further opportunity to litigate the issue, even if the Sixth Circuit rules favorably on Sunflower's petition.
If this proceeding has been concluded by that time, OCRE argues, it will have, at most, only two options in order to litigate psychological stress.
One option might be to move to reopen the record, but OCRE says that it would face a " formidable burden" in doing so.
Motion for Clarification at 2.
OCRE also cites an Appeal Board decision, Public Service Company of New Hampshire (Seabrook Sta-tion, Units 1 and 2), ALAB-513, 8 N.R.C. 694 (1978), for the proposition that "when the Board's jurisdiction is terminated on
l
. i all but a few issues.
the Board should not entertain new or reopened issues even when there are supervening developments."
Motion for Clarification at 2.
Neither of OCRE's arguments with-stand scrutiny.
First, although the standards for reopening the record may be more stringent than those for the original admission of a contention, there are good reasons why that should be so at such i
i a late stage of the proceeding.
In any event, the Appeal Board decisions establishing these tests are not subject to challenge here.
If indeed psychological stress is as significant an issue as OCRE claims, Sunflower should easily be able to meet its burden for reopening the record.3/
Second, OCRE simply misinterprets ALAB-513.
The Appeal Board in that decision did not limit intervenors' ability to l
reopen the record in the way OCRE claims.
It ruled only that the l
Appeal Board lacks authority to reopen the record on an issue which has already been decided once the time for all appeal has run, including appeal to the Supreme Court of the United States.
ALAB-513 does not speak to the question of whether the Licensing Board may reopen an issue at a point where most other issues have been decided.
Of course, the Licensing Board may do so at any time prior to initial decision.
10 C.F.R.
Sec.
- 2. 718 (j ).
3/
Applicants fail to understand OCRE's cryptic remark that
'the parochial attitudes of certain parties to this proceeding" would somehow prevent the record from being reopened.
Motion for Clarification at 3.
The other procedural option which OCRE apparently considers to be unsatisfactory is a petition under 10 C.F.R. S2.206.
OCRE does not explain why this is an unacceptable alternative ~.- What OCRE does say is that this remedy "may be precluded" even with a ravorable (to Sunflower) Court of Appeals ruling on psycholo-gical stress because Sunflower did not challenge that part of the Commission's Statement of Policy prohibiting S2.206 petitions based on psychological stress.
Motion for Clarification at 2.
While the Statement of Policy currently prohibits the applica-tion of S2.206 petitions to psychological stress issues, if the.
Statement of Policy is overturned by the Sixth Circuit, the S2.206 limitation would simply become moot.
In any event, as OCRE acknowledges, "these proceedings are months from their conclusions."
It is therefore highly likely that the Court of Appeals will have ruled long before any operating licenses have been issued.
Motion for Clarification at 1.
For all of the above reasons, OCRE's Motion for Clarification should be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
/k BY:
J Y E./ SILBERG, P.C M
HAHL A.
SWIGER Counsel for Applicants 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 DATED:
January 24, 1983
e o
January 24, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, e_t al.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE i
This is to certify that copies of the foregoing " Applicants' Answer to OCRE Motion for Clarification of the Licensing Board's Memorandum and Order (Janaary 4, 1983)" were served by deposit in the United States Mail, first class, postage prepaid, this 24th day of January, 1983, to all those on the attached Service List.
f A4(AIIIe9 JA ILBERG f
DATED:
January 24, 1983 6.
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
SERVICE LIST Peter B. Bloch, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board-Panel-U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissi@
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 Commissi@
Washington, D.C.
20555 Washington, D.C.
20555 Mr. Glenn O. Bright James M. Cutchin, IV, Esquire Atomic Safety and Licensing Board Office of the Executive U.S. Nuclear Regulatory Commission Legal Director Washington, D.C.
20555 U.S. Nuclear Regulatory Commissi@
Washington, D.C.
20555' Christine N.
Kohl, Chairman Atomic Safety and Licensing-Ms. Sue Hiatt Appeal 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
' Post Office Box 08159 Appeal Board Cleveland, Ohio. 44108 U.S. Nuclear Regulatory Commission
. Washington, D.C.
20555 Donald T.
Ezzone,! Esquire Assistant Prosecuting Attorney Gary J.
Edles, Esquire Lake County Administration Centet Atomic Safety and Licensing 105 Center Street Appeal Board Painesville, Ohio '44077 U.S. Nuclear Regulatory Commission
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Washington, D.C.
20555 John G.
Cardinal, Esquire Prosecuting Attorney Atomic Safety and Licensing Ashtabula County Courthouse Board Panel Jefferson, Ohio 44047 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Terry Lodge, Esquire 915 Spitzer Building l
Toledo, Ohio 43604