ML20086G400

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

ML20086G400
Person / Time
Site:	Davis Besse, Perry
Issue date:	11/26/1991
From:	Charnoff D OHIO EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
References
CON-#491-12375 91-644-01-A, 91-644-1-A, A, CLI-91-15, NUDOCS 9112050085
Download: ML20086G400 (13)

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-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 91 NW 27 - A11:01 crn a ;3 SECRf1A M BEFORE THE NUCLEAR REGULATORY COMMISSIONCKliiNR 4 S WIU BRAN 0i

~~)

-Infthe Matter of )

)

OHIO EDIEON COMPANY ) Docket No, iO-440-A

) ;0-346-A (Perry uuclear_-Power Plant, Unit 1, ) -

Facility: Operating License )

No. NPF-58)- -) (Suspension of

) Antitrust Conditions)

TIIE CLEVELAND ELECTRIC- ILLUNTNATING )

-COMPANY ) ASLBP No. 91-644-01-A THE> TOLEDO EDISON COMPANY )

)

(Perry Nuclear' Power Plant, Unit 1, )

s Facility Operating License )

/! No.1NPF-58) )

(Davis-Besse Nuclear Power Station, )

Unit 1, Facility Operating License )

No. NPF-3) )

)

OHIO EDISON COMPANY'S MOTION FOR P.ECONSIDERATION -

OF Ci1-91-15 ion November 20, 1991, the= Nuclear Regulatory Commission

("NRC" or "Commissior.")' issued an Order, CLI-91-15, which

-" suspend (ed)" the_ Licensing Board's " consideration of all matters

_in this proceeding vi"h the sole exception of the so-called

' bedrock': legal issue." CLI-91-15,' slip op, at 5.1 Ohio Edison

l/~ A " correction" of CLI-91-15 was issued on November 21, 1991.

As n. 3,_ infra, explains, this :arrection is incorrect.

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.PDR ADOCK 05000346 ?

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, l Company ("OE") respectively requests the Commission to reconsider and vacate its November 20 Order.

In CLI-91-15, the Commission has taken the unusual step of l preempting the Licensing Board's consideration of issues it recently admitted in its prehearing conference order, LBP-91-38, j in this proceeding. Moreover, the Commission has unilaterally  !

taken-this step-without providing any opportunity to the parties in the case to address the apparent concern of the Commission which led to its actien. That concern, as set forth in CLI-91-15, is that the admission of two contentions on decisional bias " appears to be without precedent in our proceedings." I.d.

at 4 E! The Commission therefore has concluded that "while the possibility remains that the proceeding vill be resolved without any need to reach the issue," the Commission is "not inclined" to consider how guidance on this issue is to be provided. Id.

2/ While the City of Cleveland cepealed-certain aspects of the Licensing Board's preheariag conference order, LBP-91-38, the NRC-Staff did not ;ppeal the Licensing Board's admis-sion, in LBP-91-38, of OE's two contentions on decisional bias. Instead, it chose to proceed with the litigation of those issues. Thus, without any request.for a protective order, on October 23, 1.991, the NRC Staff supplied answers to interrogatories filed by CE on the decisional bias issues. Because CE considered those answers to be woefully inad?quate, on November 6, 1991, OE filed a Motion to Compel ths NRC Staff to respond to its interrogatories.

2

I Notwithstanding the Commission's~ inclination, OE respect-fully submits that the NRC is making a mistake in CLI-91-15, both because-there is a misunderstanding as to the ability, and pro-l I

priety, of the agency reaching the decisional bias _ issue, and because of prior representations that the Commission made in this case in the United States federal courts, i Contrary to the Commission's understanding, this proceeding cannot be r+ solved fairly without reaching the decisional bias  ;

i israes. As JE made plain during the September 19, 1991 l prehearing c3nfr.rence before the Licensing Board, resolution of the issueq of decisional bias must proceed because, if improper i bias is found, that fact must be considered by the Licensing Board in the weight it should give the position of the NRC Staff on the so-called bedrock legal issue. See, e.q., Preb. Cont. Tr.

(Sept. 19, 1991) at'75 (counsel for OE).3/

The necessity of this approach is reflected in the decisionml bias contentions them-selves, which question the weight, if any, to be given to the recommendations of the NRC Staff by the Licensing Board and the Commission in their consideration of OE's application to' amend 2/ To the extent the Commission understood OE to be suggesting that the bedrock legal issue could be resolved without. con-sidering the decisional bias issues, this is incorrect. The-discussion during the recent prehearing conference, for example, on the litigation of the bedrock legal issue took~

_ place after the Licensing Board already had ruled that the decisional bias issues were admitted and-that discovery -

-should proceed forthwith. Preh. Conf. Tr. (September 19, 1991) at 118-19, 202-20,

_3_

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J, the Perryflicense. LBP-91-38, slip op. at145 n. 83, as modified -

at 50.

In short,.if the NRC Staff was predisposed or biased in this -

1 case such that it did not give serious or genuine consideration

- to OE's application, its denial of that, application is a~ biased denial and should be viewed as such by the Licensing Board and the Commissi n in order to be taken-into consideration appropri-ately. -To treat such a denial, if it indeed took place, as sim-ply a routine decision on the merits of OE's application,-would 4

)

not only be unfair, but it would be erroneous. l If the. Commission proceeds with the approach outlined in i

CLI-91-15, it will have effectively denied OE the opportunity to i have any meaningful consideration by the NRC of its decisional bias issues because, for such an opportunity to be meaningful, it .

must take place in conjunction-with (or prior to) the agency's consideration of the so-called " bedrock" legal issue.4/

4/ The Commission's correction-to CLI-91-15 presumably is

~ designed to indicate the' agency's willingness-to allow-liti-gation also to proceed on another issue in-the-case, i.e.,

the City of Cleveland's arguments on collateral estoppel and other legal grounds for summary disposition in-its favor.

It should be noted, however, that the-correction itself is-

-incorrect; Cleveland's issues are not part of the bedrock legal' issue on the merits of OE's application. as the origi-nal version of CLt-91-15 accurately reflects.

Moreover, assuming it is not a foregone conclusion that the

= bedrock-legal issue will be resolved 1against the Applicants, the issue of the-cost of Perry and-Davis-Besse power and its -

alternatives, as appropriately measured and compared,-also is an: issue in this case. See LBP-91-38, slip op, at 53-54.

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Moreover,'by-declining to resolve the bias issue, the fairness and validity of the agency's decision on the bedrock-legal issue vill be-in doubt, Ia sum, contrary to the Commission's under-standing,.the proceeding cannot be resolved without any need to reach the decisional bias issues. See CLI-91-15, slip op. at 4.E#

There is a second reason why the Commission should vacate i

CLI-91-15, and that is that tne NRC publicly has made the deter-mination that it should hear CE's decisional bias claims, on June 22, 1988, OE filed a verified complaint for a declaratory judgment with the United States District Court for the District of Columbia. Ohio Edison Company v. Lando W. Zech et al., Civil Action-No. 88-1695 (hereinafter Zech I). In that case, OE sought to' remove its application to amend the Perry license from the NRC's consideration. As OE stated in its com-plaint, "while this case ordinarily would be decided in the first 1/ .The fact that the decision on the. bedrock legal issue "has the potential of allowing applicants to proceed to an

. evidentiary proceeding or of terminating the hearing in favor of aaintaining the license conditions," as stated in CLI-91-15, slip op.-at 3, simply indicates that Applicants could win or-lose.this case,. If Applicants were to win on the legal issue, the case vould then proceed to an evidentiary consideration of the cost issue. .Unfortunately, the broad-brush suspension of "all matters in this. proceed-L ing with the sole exception of the so-called ' bedrock' legal L issue," CLI-91-15, slip op, at 3, excludes both the deci-H

• sional bias issues and the issue of costs. This result sug-l gests that the latter option -- losing - is the only real e outcome available to Applicants, which, of course, is the concern reflected in the decisional bias issues, i

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instance by the NRC, the extraordinary circumstances that have occurred compel consideration of this matter by this Court."

OE's Verified Complain for Declaratory Judgment (June 22, 1998) in Zech I st 126 The "e.ttraordinary circumstances" to which OE referred in .988 were the facts which form the basis f or the decisional bi0s contentions that the Licensing Board recently admitted in this case. See Lb?-91-38, slip op, at 44-50; see, particularly, id., et 45 n. 83 as modified at 50 (stateme"+ of decisional bias conteTtions).

In its two substantive filings before the District Court in 2ech 1, the Commission unequivocally stated that the decisional bias issues in this case had to be presented to and considered by the NRC before they could be subject to judicial consideration.

Specifically, the NRC stated:

1. If the NRC staff determines initially to deny the requested amendment, plaintiff will have an oppor-tunity for ar. adjudicatory hearing before an Atomic Safety and Licensing Board. That Board's on the record decision will in turn be reviewable by the Atomic Safety and Licensing Appeal Board and the Commission. It is through this agency process that Ghio Edison must first present its claims of improper congressional interference in the administrative process. Afterwards, :f neces-sary, plaintiff can request judicial review of the agency's final decision.

2. Subject natter jurisdiction aver this claim rests with the NRL in the t .: s: nstance, and, on appeal, exclusively .: ne Court of Appeals.

Plaintiff will have ample opportunity to raise a charge of improper influence or bias in that forum, e

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-NRC Memorandum of Points and Authorities in_ Support of Motion to Dismiss (Aug. 22,_1988) in Zech I, at 7-8 (emphasis-added);fNRCj

-Reply _to.OE's Opposition to Motion to Dismiss (Oct. 18,_1988) i n-Zech I, at 4_(emphasis added); see also Transcript of Hearing on Defendants' Motion to Dismiss (Dec. 13, 1988)_ in Zech I, at S-7 (counsel for the NRC).E Thus, the NRC first addressed the issue of its readiness to establish guidance on issues of decisional bias in 1988. Its 1 position was unambiguous:= issues of decisional bias should be and would be resolved, in the first inst e, by the NRC.

The. commission was successful in having the case before the District Court transferred to the United States Court of Appeals for the District of Columbia Circuit. Ohio Edison Co. v. Lando W.-Zech et al., No. 89-1014 (hereinafter "Zech II"). Once.again, before--the Court of Appeals, the NRC argued that OE had to 5/ It should be noted, os we'1, that from the beginning, the -

NRC has taken legal steps to avoid answering OE's discovery requests on its decisional bias claims. In the District-Court, for example, the NRC filed a motion for a protective order in order to avoid answering OE's discovery requests on the decisional bias issues. See Defendants' Mction for a Protective Order (Aug. 8, 1988),-Civil-Action-No.- 88-1695-CRR,.and Memorandum of Points and Authorities in Support of Defendants' Motion for a-Protective _ Order (Aug, 8, 1988),

Civil Action No. 88-1695 CRR.

As the Commission doubtless is aware,-more than three years later, OE-is still_ trying to get answers to its interrogato-ries on decisional bias. The NRC Staff's: response to.OE's recent Motion to Compel answers to discovery was due on  ;

November 21, 1991 -- the day after the Commission issued  ;

CLI-91-15.

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exhaust itstadministrative remedies, and have-its contentions

-heard by the NRC, before obtaining consideration by the court.

See Respondents' Motion to Di.miss -

s (Feb. 27, 1989) in-Zech'II; Respondents' Reply to Petitioner's Opposition to Motion to Dis-miss (March 24, 1989), in Zech II. Indeed, the Commission once again was successful and-convinced the Court that, as a matter of law,-agency consideration must precede the Court's consideration of the issues 1in this case. Order (April 27, 1989) in Zech II.

After' years have passed and the case is finally being heard-by an NRC Licensing Scard, and after the matter of decisional bias has been raised and reraised by OE and finally is ripe'for consideration, the Commission precipitously steps in and halts

-the process because it now believes that-it would like to avoid

" reach [ing)".the decisional.oias issues in the case. CLI-91-15, slip op at 4. OE respectfully suggests that the Commission passed this' hurdle a long time ago.when_it vigorously argued before the federal courts that it was the Commission's responsi-bility to consider these issues in the first instance. Accord-ingly, the NRC cannot now do an about face, and walk away from its unequivocal representations to the courts. After all, it was on the basis.of these representatiens that OE was denied direct access to the courts. See Farmland Industries Inc. v. Grain

-3oard of Irac, 904 F.2d 732, 739 (D.C. Cir. 1990) _ (foreign _ agency-i estopped from making one representation'in Court of Appeals and -

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-asserting _otherwise in another proceeding; Court relies on " good =

faith representation" of acenny).7/

OE has-waited a very long time to proceed withithe-litiga-tion of its decisional. bias claims,.and_specifically,-to-obtain answers-to a very limited number'of straightforward interrogato- )

ries on these issues. The proper and fair approach _is to permit the litigation of.the decisional' bias contentions in this case to ,

f 1/ With due respect to the Commission, it also should be stated that the absence of precedents for the decis.ional bias con-tentions is not-a valid basis for their_ exclusion in this case. See CLI-91-15, slip _op. at 4'. As the NRC Staff recently observed in a pleading in this proceeding, tha Com-mission's" review of " matters of first impression" may be particularly important, and require particularly careful-consideration. NRC Staff's Motion for--Extension of Time to File Response to the City ofLCleveland's Notice of Appeal;

-forEPrehearing Conference Order Granting-Request for Hearing; (Nov. 1,- 1991)-at.2. But an issue's novelty to the agency, assuming it is a novel claim, has never barred the:NRC from considering!it before, and- t is" add, indeed, _for=it-to do- - _

so now,.when the agency publicly represented thatLit is entitled to consider issues af_ decisional bias by the agency-L before any_cuurts do, i-

i proceed. Accordingly, OE respectfully requests that the Commis-sion vacate CLI-91-15 and direct the NRC Staff to answer forth-with OE's Motion to Compel.

Respectfully submitted, WaB.%snc/7/ks Gerald Charnoff /

Deborah B. Charnoff Margaret S. Spencer SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037 (202) 663-8000 Counsel for Ohio Edison Company Dated: November 26, 1991 Mi/0214/043DBC.91

1 I, , a ni R P

! UNITED STATES OF AMERICA u%RC NUCLEAR REGULATORY COMMISSION i 9) NOV 27 m :02 l BEFORE THE NUCLEAR REGULATORY COMMISSION

,. , .. e t us

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)

V

00. ', 1 l'; 4 In the Matter of )

)

OHIO EDISON COMPANY ) Docket No. 50-440-A

) 50-346-A (Perry Nuclear Power Plant, Unit 1, )

Facility Operating License )

No. NPF-58) ) (Suspension of

) Antitrust Conditic.ts)

THE CLEVELAND ELECTRIC ILLUMINATING )

COMPANY ) ASLBP No. 91-644-01-A THE TOLEDO EDISON COMPANY )

)

(Perry Nuclear Power Plant, Unit 1, )

Facility Operating License )

No. NPF-58) )

(Davis-Besse Nuclear Power Station, )

Unit 1, Facility Operating License )

No. NPF-3) )

)

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 26th day of November, 1991, a copy of the foregoing Ohio Edison Company's Motion for Reconsidera-tion of CLI-91-15 was served by hand to each of the following: -

Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, Maryland 20852 Ivan Selin, Chairman U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, Maryland 20852 4 Kenneth C. Rogers, Commissioner U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, Maryland 20852

1-

-James R. Curtiss, Commissioner U.S.. Nuclear Regulatory Commission

,; -11555_Rockville Pike

-Rockville, Maryland 20852 Forrest J. Remick, Commissioner U.S. Nuclear' Regulatory Commission 11555-Rockville Pike Rockville, Maryland 20852 Joseph Rutberg, Esq.

Sherwin E. Turk, Esq.

Steven R. Hom, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission-11555 Rockville Pike Rockville, Maryland 20852 In addition, a copy of the foregoing Ohio Edison Company's Motion for Reconsideration af CLI-91-15 was mailed first class, postage 1 prepaid, to each of the following:

Charles Bechhoefer Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555-G. Paul Bollwerk, III Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Marshall E. Miller, Chairman

' Atomic Safety and Licensing-Board Panel U.S.-Nuclear Regulatory Commission 1920 South. Creek Boulevard

. Spruce-Creek Fly-In Daytona-Beach, Florida 32124 Mark C. Schechter, Esq.,

Janet Urban, Esq.

Transportation, Energy and

. Agriculture Section Antitrust Division Department of-Justice

-Judiciary Center Building 555. Fourth Street, N.W.

Washington, D.C. 20001 1

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- James P. Murphy, Esq. -

. Squire, Sanders & Dempsey 1201 Pennsylvania Avenue, N.W.

P.O. Box 407-Washington, D.C. 20044 June ~W. Weiner, Esq., _ _

Chief Assistant Director-of Law William M. Ondrey Gruber, Esq.,

Assistant Director of' Law William T.-Zigli, Esq.

Assistant Director of Law

. City Hall, Room 106 601 Lakeside-Avenue Cleveland, Ohio 44114 Reuben Goldberg, Esq.

Channing D. Strother,-Jr., Esq.

- Goldberg, Fleidman & Letham, P.C.

1100 Fifteenth Street, N.W. -

Washington, D.C. 20005 D. Biard MacGuineas, Esq.

Volpe, Boskey and Lyons

- 918 Sixteenth Street, N.W.

Washington, D.C. 20006 David R. Straus, Esq.

Spiegel & McDiarmid 1350-New York Avenue, N.W.

Suite 1100 Washington, D.C. 20005-4798 Kenneth L. Hegemann, P.E.

President American Municipal Power-Ohio, _Inc.

601-Dempsey' Road P.O. Box E49 Westerville, Ohio 43081 Philip-N. Overholt -

Office of Nuclear Plant-Performance Office of Nuclear _ Energy-U.S. Department of Energy, NE-44 ,

- Washington, D.C. 20585

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Margaret:S..Spe.ncer SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.

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