ML20092N720

Argues Against Ohio Citizens for Responsible Energy 840625 Brief on Commission Financial Qualifications Policy Statement.Certificate of Svc Encl.Related Correspondence

ML20092N720
Person / Time
Site:	Perry
Issue date:	06/28/1984
From:	Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Bloch P, Bright G, Kline J Atomic Safety and Licensing Board Panel
References
NUDOCS 8407030475
Download: ML20092N720 (4)

Text

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%, o- o ano 00f.KETE0 SHAW, PITTMAN, PoTTs & TROWBRIDGE A PARTNERSMep OF PROFESSIONAL CORPORAftONS 1800 M STRE ET, N. W.

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WASHINGTON, D. C. 20036 TELEcOPeER taCai saa-iCoe & saa-poo UFF1T OF SEWD: 12, 00 h ImG4 H r.e-,es,i. ..u..S.

June 28, 1984 Euncy c, .L ......u.

TELEPHONE JAY E. SIL B ER3, P.C. 1202i_422-eOe3 Peter B~. Bloch,-Esquire Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 '

Dr.. Jerry'R. Kline Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Glenn O. Bright Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission

, Washington, D.C. 20555 In the Matter of The Cleveland Electric Illuminating Company, et al.

(Perry Nuclear Power Plant, Units 1 and 2)

Docket Nos. 50-440 and 50-441 Gentlemen:

On June 25, 1984, Ohio Citizens for Responsible Energy (OCRE) filed with the Board a "Brief on Financial Qualifications Policy Statement." OCRE argues that the Commission's Policy Statement is invalid, not only because OCRE disagrees with the Commission's conclusion, but because of an alleged improper g parte contact. OCRE therefore urges the Board to disobey the Commission's instructions.

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.e SHAW. PITTMANs POTTs & TROWBRIDGE A peat?tegsggaete OF p8tOFeegeoseAL COmpostAtacoes Atomic Safety and Licensing Board June 28,.1984 Page 2 The validity of the Commission's Policy Statement is an issue that must be addressed to the Commission, not to the Licensing Board. Commission Policy Statements and policy declarations are binding on the boards. Mississippi Power &

Light Company (Grand Gulf Nuclear Station, Units 1 and 2),

ALAB-704, 16 N.R.C. 1725, 1732 (1982); Northern States Power

' Company (Prairie Island Nuclear Generating Plant, Units 1 and 2),

ALAB-455, 7 N.R.C. 41,-51 (1978), remanded on other grounds sub nom.,' Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979). As this Licensing Board has ruled, a licensing board has no jurisdiction over an issue resolved by Policy Statement, and is prohibited from inquiring into the procedural regularity of the Policy Statement. Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-69, 16 N.R.C. 751 (1982).

OCRE's allegations of ex parte communication are also misplaced. On February 7, 1984, the U.S. Court of Appeals for the District of Columbia Circuit handed down its decision in New England Coalition on Nuclear Pollution v. NRC, 727 F.2d 1127 (D.C. Cir. 1984). This law firm was counsel of record in that proceeding. On April 2, 1984, the Commission commenced a rulemaking proceeding to address the New England Coalition decision. This firm is counsel to utilities participating in that rulemaking proceeding. Ex parte restrictions do not generally apply to NRC rulemaking. Sierra Club v. Costle, 657 F.2d 298, 386-410 (D.C. Cir. 1981) (except where there are conflicting private claims to a valuable privilege, ex parte proscriptions do not apply to notice-and-comment rulemaking).

Nor is there any restriction on discussions between one party to a litigation (the NRC) and counsel to another party (this firm on behalf of its utility clients) on matters directly concerning that litigation.

The letter from Mr. Charnoff to a Commissioner and assistants to three others discussed the New England Coalition

-litigation, and specifically the effect of issuance of the

-court's mandate in New England Coalition on the NRC's financial

-qualifications rule'. It was one of several such letters sent by parties to the litigation'and others to the Commissioners. All of these documents including Mr. Charnoff's letter, were placed in the Public Document Room. Most were not served in pending NRC

. proceedings. For example, counsel for New England Coalition submitted a letter (dated May 8, 1984) to the Commissioners on the.same subject as Mr. Charnoff's letter, without serving other parties in the Seabrook case -- in which the Coalition is a party.

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e SHAW. PITTMAN, PoTTs & TROWBRIDGE

- A WARTMtlBSeeep or psM3FESesOseAL ComponATIONS Atomic Safety and Licensing Board June 28, 1984 Page 3 I

,Further, comments on rulemakings are not routinely sent to

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other parties in adjudicatory proceedings -- even if similar issues may be involved. For example, Ms. Hiatt filed comments with the NRC on the pending financial qualifications rule (letter dated May. 28,-1984), but did not serve Applicants or other parties in the Perry proceeding. Ms. Hiatt also had filed l comments in the now-completed ATWS rulemaking, see 49 Fed. Reg. 26036 (June 26, 1984), but did not send a copy to Applicants or ,

.other parties. OCRE should not now be heard to complain of the  !

same conduct which.it has practiced, particularly when that practice violates no rules of conduct and is perfectly proper.

Sincerely,

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J . ILBERG C u se for Applica tb JES: lam "

cc: Service List '

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" ~ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'Before the Atomic Safety and Licensing Board

'Inithe Matter of )

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ITHELCLEVELAND ELECTRIC ) Docket Nos. 50-440-ILLUMINATING' COMPANY, ' _E_T _A_L. ) 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 CommissioE

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 CommissioG Washington, D.C. 20555 Washington, D.C. 20555

.Mr. Glenn O. Bright Colleen P. Woodhead, Esquire Atomic Safety and Licensing Board Office of the Executive Legal U.S. Nuclear' Regulatory. Commission Director Washington, D.C. -20555 U.S. Nuclear Regulatory CommissioG

, Washington, 20555 D.C.'

Christine N. Kohl, Chairman Ms. Sue Hiatt Atomic Safety and Licensing OCRE Interim Representative Appeal Board 8275 Munson Avenue s

,l U.S. Nuclear Regulatory Commission Mentor, Ohio' 44060 Washington, D.C. 20555 Dr. W. Reed Johnson Terry Lodge, Esquire Atomic Safety and Licensing 618 N. Michigan Street, suite 105 Appeal' Board Toledo, Ohio 44060 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Gary J..Edles, Esquire Donald T. Ezzone, Esquire Atomic Safety and Licensing Assistant Prosecuting Attorney

' Appeal Board Lake County Administration Center U.S. Nuclear Regulatory Commission 105 Center Street Washington, D.C. -20555 Painesville, Ohio 44077 Atomic Safety and Licensing John G. Cardinal, Esquire Board Panel Prosecuting Attorney U.S. Nuclear Regulatory Commission Ashtabula County Courthouse Washington, D.C. 20555 Jefferson, Ohio 44047

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