ML20094M594
| ML20094M594 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 11/15/1995 |
| From: | Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#495-17305 OLA-3, NUDOCS 9511270139 | |
| Download: ML20094M594 (8) | |
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/7305 UNITED STATES OF AMERICA 00CKETED NUCLEAR REGULATORY COMMISSION USNRC Before the Commission
% NOV 20 A9 :49 0FFICE OF SECRETARY In the Matter of
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DOCKETING & SERVIC.
)
8 RANCH THE CLEVELAND ELECTRIC
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ILLUMINATING CO. et al.
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Docket No. 50-440 OLA-3
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(Perry Nuclear Power Plant,
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Unit 1)
)
)
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INTERVENORS' ANSWER TO LICENSEES' PETITION FOR REVIEW On November 7,
1995 the Licensees filed a
Petition for Review requesting that the Commission review the decision of the Atomic Safety and Licensing Board, LBP-95-17, issued October 4,
- 1995, in which the Board granted the summary disposition motion filed by Intervenors Ohio Citizens for Responsible Energy, Inc.
and Susan L. Hiatt.
Pursuant to 10 CFR 2.786 (b) (3),
Intervenors are filing this answer in opposition to Licensees' petition.
I.
SUMMARY
OF DECISION AND STATEMENT OF ISSUES RAISED In LBP-95-17, the Licensing Board ruled that de facto li-cense amendments involving material issues (materiality dictated by regulations requiring prior NRC approval before licensee implementation) carry the same procedural safeguards for public participation, as defined in Section 189a of the Atomic Energy Act, as license amendments explicitly labeled as such.
Licensees had requested an operating l'. cense amendment for the Perry Nucle-i 9511270139 951115 1
1 PDR ADOCK 05000440 0
PDR S
i er Powa~r Plant to rsmova from ths Technical Spacifications thm schedule for withdrawing reactor vessel material surveillance specirons, in accordance with Generic Letter 91-01.
Intervenors contended-that the proposed amendment violated Section 189a by depriving members of the public of their right to notice and opportunity for a hearing on any changes to the withdrawal sched-ule.
The Board essentially adopted Intervenors' arguments.
Licensees complain in their petition that the Board "errone-ously" rejected the NRC Staff's interpretation of 10 CFR 50 Appendix H Section II.B.3, and that the Board's decision "will transform the numerous routine requests for NRC approvals filed i
by licensees pursuant to NRC regulations into the equivalent of license amendments requiring notice and opportunity for hearing under the Atomic Energy Act."
Petition at 1-2.
1 II. THE LICENSING BOARD'S ORDER IS NOT ERR 0NEOUS Contrary to Licensees' assertions, the Licensing Board's f
decision is not erroneous.
It is entirely consistent with the Atomic Energy Act, the governing case law, and the NRC's Princi-ples of Good Regulation, i. e., " Openness - nuclear regulation is the public 's business.
A.
Licensees
- first complaint in their petition is that the Licensing Board's order " transforms licensee actions requiring prior NRC regulatory approval into the equivalent of license amendments for which notice and opportunity for hearing must be afforded under section 189a of the Act."
Petition at 3-4.
2 l
' Licensees apparently missed the point of the Board's order and of
-the governing court decision, Citizens Awareness Network y - HEC, 59 F.3d 284 (1st Cir. 1995) ("CAH") (see Board's Order at 23, n.
24):
that a licensee action for which NRC approval is required prior to implementation already LL a license amendment, even if it is not explicitly designated as such.
The CAR decision is directly on point.
It is instructive to consider the Court's language on petitioner CAN's AEA argu-ments:
t CAN contends that Commission approval of YAEC's CRP violated l
AEA section 189 (a), which requires the Commission to grant a hearing upon request by any party in interest whenever it undertakes any proceeding to " amend" a license.
42 U.S.C.
2239 (a) (1) ( A).
CAN argues that Commission approval of YAEC's CRP was a de facto " amendment" of YAEC's POL because it authorized YAEC (as well as other extant and prospective licensees) to engage in materially different conduct not permitted under the pre-1993 POL, namely, major component i
dismantling absent prior NRC approval of a final decommis-sioning plan.
The Commission elevates labels over substance.
It would have us determine that a " proceeding" specifically aimed at excusing a
licensee from filing a petition to amend its license is not the functional equivalent of a proceeding to allow a de facto " amendment" to its license.
As this con-struct would eviscerate the very procedural protections Congress envisioned in its enactment of section 189 (a),
we decline to permit the Commission to do by indirection what it is prohibited from doing directly.
We therefore hold that CAN was entitled to a hearing under section 189 (a) in connection with the NRC decision to permit YAEC's early CRP.
CAR, 1995 WL 419188,
- 8-*9 (1st Cir. ).
It is of crucial importance that petitioner CAN's AEA argu-ment was virtually identical to that of Intervenors in this proceeding.
The Court indeed did lay down the broad rule of law that de facto license amendments are in fact subject to the 3
i public hearing provisions of the AEA.
When the Commission decided not to seek rehearing or to file a-petition for certiorari in the U.S.
Supreme Court of the CMi l
j
- decision, the NRC bound. itself to its holdings.
CAR is now the governing precedent on this matter, and any previous decisions to the contrary, including those' cited by Licensees, are simply no l
longer controlling.
After the First Circuit's mandate
- issued, the Licensing
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Board simply could not have reached any other conclusion.
l l
B.
Licensees' second complaint is that the Board's order elimi-nates materiality as a requirement for a hearing under the AEA.
In reality, the Board's order does no such thing.
The Licensing Board specifically addressed materiality in its decision: "the arguments of both the Applicants and'the Staff accept the Intervenors ' premise that material licensing issues trigger section 189a hearing rights."
Order at 11.
The
- Board, after outlining the positions of the parties,.found the crux of l
.the issue to be "the Staff 's interpretation of the Commission 's regulations.
Accordingly, resolution of the Intervenors' summary disposition motion rests upon the proper interpretation of Appen-i dix H,Section II.B.3."
Id.
j l
1 Licensees do not agree with the Licensing Board's interpre-tation of 10 CFR 50 Appendix H.
But that hardly equates with eliminating materiality as a condition of Section 189a hearing rights.
i C.
Finally, Licensees assert that the Board's orde) is errone-i 4
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.m
_c-,
~
ous because it rejects the Staff 's " reasonable" interpretation of Appendix H.
However, it is Licensees who are in error.
l Licensees imply that the Staff 's interpretation of the NRC's regulations should somehow be binding on the Licensing Board.
However, nothing in the NRC's body of case law supports this hypothesis.
In
- fact, the case law supports the opposite conclusion.
"[T]he staff does not occupy a favored position at hearings.
l f
In
- short, the staff 's views 'are in no way binding upon' the boards; they cannot be accepted without passing the same scruti-ny as those of the other parties."
Consolidated Edison C2, ni dan York, (Indian Point, Units 1, 2, & 3), ALAB-304, 3 NRC 1, 6
(1976).
l Although they find fault with the result, Licensees do not refute the detailed legal reasoning developed by the Licensing Board in interpreting Appendix H.
The Board's analysis is a
thorough and well-reasoned paragon of regulatory construction.
Employing the rules of statutory construction, the Board found 1
the unambiguous language of the regulation, and not the subse-f 1
quent revisionist regulatory history supplied by the Staff, to be persuasive.
Order at 12-22.
Licensees do not cite any authori-ty that would contradict that relied upon by the Board.
Disre-garding the Board's detailed analysis, Licensees merely make the broad assertion that "the regulation is not so clear and unambig-uous as the Board claims."
Petition at 9.
Licensees find ambiguity in Appendix H,Section II.B.3 in that "Ci]t does not specify whether it is only the initial sched-ule that must be approved or whether changes to that schedule 5
l
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must also receive prior approval." Id.
This argument is cophis-try.
Any proposed schedule is a proposed schedule.
It matters not whether it is a proposed initial schedule or a proposed l
revised schedule.
It is still a proposed schedule,
- and, under
. Appendix H, must receive NRC approval prior to implementation.
As the Licensing Board clearly stated, under the regulation's J
" literal terms, a new schedule or any change to an already imple-mented schedule, significant or otherwise, must be considered a
' proposed' schedule and, as such, must be submitted to the agency i
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and approved prior to implementation.
This is what the plain words of the regulation say and this is what it means."
Order at 18.
Finding no ambiguity in the regulatory language, the Board
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could have simply ceased its analysis with no further regard for the Staff's interpretation.
But the Board did consider the Staff 's position, and found it wanting.
Order at 18-22.
Licen-1 sees describe the Staff's interpretation as
" reasonable,"
but they do not supply rational arguments to refute the thorough and decisive Board examination which found it unreasonable.
III. THE COMMISSION SHOULD NOT REVIEW THE BOARD'S ORDER l
Licensees argue that the Commission should review the l
Board's decision because its legal conclusion is a
" departure from" and " contrary to established law" (10 CFR
- 2. 786 (b) (4 ) (ii) )
and because it raises " substantial and important question (s)"
of law and policy (10 CFR 2. 786 (h) (4) (iii)).
Petition at 9-10.
In 6
~
reality, neither standard has been met.
As shown above, the Board's order is not contrary to estab-
{
lished
- law, but rather is entirely consistent with it.
The Licensing Board has faithfully implemented the holding of the First Circuit Court of Appeals in the CMi decision, a
case directly on point.
Nor does the Order raise substantial and important questions of law and policy that were not previously considered when the Commission declined to appeal the CAR decision.
Having bound itself to the CAH holding, the NRC must now achieve its generic application.
Intervenors and the petitioners in CAR' raised the same legal issue:
whether Section 189a hearing rights attach to de facto license amendments.
CAN won the race to the courthouse, and they won their case, which the Commission has accepted.
The Licensing Board's Order is merely an implementation of that precedent.
Intervenors conclude that the Commission should not review the Board's decision.
Respectfully submitted, Susan L. Hiatt Intervenor Pro Se and Representative of Ohio Citizens for Responsible Energy, Inc.
8275 Munson Road Mentor, OH 44060-2406 (2 16) 255-3158 DATED: November
/d5, 1995 7
00CKETED l
USNRC-1 l
CERTIFICATE OF SERVICE 35 NOV 20 A9:49 This is to certify that copies of the foregoing were served by deposit in the U.S.
Mail, first class, postage smoildf S&2ftsTARY
/sd day of November, 1995, to the following: 00CKETING & St.RVICE BRANCH John F. Cordes, Jr., Acting Director Office of Commission Appellate Adjudication U.S.
Nuclear Regulatory Commission Washington, DC 20555 Office of the Secretary Docketing and Service U. S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Thomas-S. Moore, Chairman Atomic Safety and Licensing Board U. S.
Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Dr. Richard F. Cole Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Dr. Charles N. Kelber 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 230] N Street, NW Washington, DC 20037
[
Susan L. Hiatt
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