ML20095E859

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Licensee Brief in Opposition to Appeal of Ocre & SL Hiatt.* Brief Opposing Petitioner Appeal & Supporting Licensing Board Memorandum & Order on Intervention Petition.W/Svc List & Certificate of Svc
ML20095E859
Person / Time
Site: Perry FirstEnergy icon.png
Issue date: 04/17/1992
From: Silberg J
CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
NRC COMMISSION (OCM)
References
CON-#292-12835 OLA-3, NUDOCS 9204280052
Download: ML20095E859 (19)
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'92 APR 20 A10 :GO UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION so-acsi w ; .

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Before the Commissioners In the Matter of )

)

THE CLEVELAND ELECTRIC 1-

_1Li,UMINATING COMPANY, et al. ) Docket No. 50-440-OLA-3

)

(Perry Nuclear Power Plant, )

Unit No. 1) )

L!CENSEES' BRIEF IN-OPPOSITION

, TO THE APPEAL OF OCRE AND SUSAN L. HIATT Jay E. Silberg, P.C.

David R. Lewis SHAW, PITTMAN, POTTS &

TROWBRIDGE 2300 N Street, N.W.

i Washington, D.C. 20037 Tel. 202 663.8000

,' Counsel for-Licensees-l-

April 1?_, 1992 l

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P TABLE OF CONTENTS Table of Authoritles .........................................iii

ntroduction and Summary . . ................................... 1 Statement of Case . . .... ...................................... 2 A r g u*i'.e n t ..................................................... 7

~. PETIT!ONERS NEITHER ALLEGED NOR DEMONSTRATED ANY IMMEDIATE, PALPABLE HARM ESTABLISHING STANDING ..... 8

. THE MERE ALLEGATION JF A PROCEDLRAL INJURY. WITHOUT ANY DEMONSTRATION OF SUBSTANT:'/E HARM, WAS NOT SUFFICIENT TO CONFER STANDING ...................... 9 III. EVEN IF A LEGAL CR PROCEDURAL INJURY WERE SUFFIC:ENT

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INTERVENTICN IN THE PROCEEDING BELOW =lD CANNOT r "rAA 10 Q=?qp

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. vn m' '2 "i . . v ,' "' ' v. 9 CASES:

Sovker v. Morton, 541 F.2d 1347 (9th Cir. 1976)............... 10 BPI v. AE&, 502 F.2d 424 (D.C. Cir. 1974)..................... 14 C3Dital Legal F0vndation v. Commodi'v Credit Corp.,

711 F.2d 253 (D.C. Cir. .963)...........................], 12, 13 Foundation on Eccn. Trends v. Lyng, 943 F.2d 79 (D.C. Cir. 1991).............................................. 10 Los Anceles v. Lyons, 461 U.S. 95 (1953)........................B Los Anaeles v. NHSTA, 912 F.2d 478 (D.C. Cir. 1990),

cert, denied, 112 S. Ct. .225 11992).......................... 10 People for the E+bical Troa! Tent or A;1 i a l s .. iji 917 F.2d 15 (9tn C r. .99C)................................... 10 Te l ec ommun i c a t i on s Research and Ac* ion Center v. FCC, 917 F.2d 535 (D.C. Cir. 1993)................................. 10

'nion of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990)....... ............................... 6, 13, 14

'J n i t ed S t a t e s v . Pichardson, 418 U.S. 166 (1974). ..............d Jnited Transo. "-ion v. :CC, 391 F.2d 908 (D.C. Cir. 1989),

tert, denied, 11: 5. Ct. 3271 (1990)........... 6, 10, ll. 12, 13 Warth v. Seldin, 422 U.S. 490 (1975).............. ............ 8 Wilderness Societv v. Griles, 324 F.2d 4 (D.C. Cir. 1987)..... 10 ADMINISTRATIVE DECISIONS:

Cleveland Electric I llu~ 1 n at i na Co. Ferry Nuclear Power Plant, Un;t No. '),

. LSP-92-4, __ N.R.C.

(slip op. Marcn 15, 1992).......... ....................... passim Georcia Pcver Co. i'ioctle Elect ri c Generat ;ng Plant, Jnits ; and ;), ALAS-672, 26 N.R.C. .27 (1937)................ 16 Vort he rn S t a t es .:c-e r C 3. Prair.e .sland Nuclear Generating Plant, Jn;ts 1 anc 2), \LAS-244, 6 A.E.C. 357 (1974)........... 6 1.-

Nuclear Encineerino Co., Inc. (Shetfield, :ll., Low-Level Radioactive Waste Disposal Site), ALAB-473, ' N.R.C.

737 (1978).................................................... 16 Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2). CLI-76-27, 4 N.R.C. 610 (1976).................. 15 Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit A), ALAB-648, 14 N.M.C. 34 (1981)......... 16 Washington Publi c Power Suppgly Station (WPPSS Nuclear

?roject No. 3), ALAB-747, 16 N.R.C. 1167 (1983).... .......... 16

. STATUTES:

Atomic Enercy Act, Section 132(a),

42 USC S 2232(a) (1998)..................... ............. 7 Atomic Energy Act. Section 199(a),

42 U.S.C. s 2239(a) (1958)............................cassim i

REGULATIONS:

10 C.F.R. Part 50. App. H...................................... 2 10 C.F.R. S 2.714a(a).......................................... 1 MISCELLANEOUS:

Interim Policy Statement on Technical Specifications -

Improvements for Nuclear Power Reactors, 52 Fed. Reg. 3783 (1957)....................................... 2 Generic Letter 91-01, " Removal of the Schedule for withdrawal of Reactor Vessel Material Specimens from Technical Specifications" (Jan. 4, 1991)................................. 2 m 4 1

k - _ _- ___- - _- -__ __ _-

r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION f

Before the Commissioners In the Matter of )

1 THE CLEVELAND FLECTRIC )

ILLUMINATING COMPANY, et al. ) Decket No. 50-140-OLA-3

)

(Perry Nuclear Power Plant, )

Unit No. 1) )

LICENSEES' 3RIEF !N CPPOSIT!DN TO THE APPEAL OF OCRE AND SUSAN L. 'HIATT INTRODUCTION AND

SUMMARY

Pursuant to 10 C.F.R. 5 2.714a(a-), The Cleveland Electric

lluminating Company, et al. (" Licensees") submit this brief in
- . opposition to the appeal of Ohio Citizens for desponsible Energy .

In:: . (CCRE) and Susan L. Hiatt (together, the " Petitioners") in

he above-captioned-proceeding. In their Appellate Brief-(" App.

3r.") dated April 2,--1992,-Petitioners challenge the Atomic Safety and Licensing Board's ruling that Petitioners failed to

' demonstrate standing to intervene in this license _ amendment _ pro-ceeding.- Petitioners' arguments-lack merit'and must be rejected.

l The gravamen of Petitioners' appeal is that a mere allega-l tion that a proposed action violates procedures under the Atoniic Energy Act is sufficient to confer standing upon a petitioner, l' without any showing of an actual or -hreatened suhstant:ve i

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. _ . . - _ _ . . . . _ - - - . _ . _ . _ u.-.. . . _ . - _ . _ _ _ . _ - _ . . _ . -;- _

injury. Petitioners' proposition is not only wrong as a matter of law (conflicting both with the language of the Atomic Energy Act and established precedents on standing) but also unworkable.

If Petitioners' proposition were accepted, a proposed license amendnent for the Perry plant in Ohio could be challenced, for example, by residents of Alaska. The standing requirement that a petitioner damentrate a distinct and palpable injury in fact exists to avoid such unbounded intervention and ensure that the _

agency's limited resources are focused on immediate, real contro-versies. Petitionerr have simply failed to demonstrate the req-uisite palpable injury.

STATEMENT OF CASE On March 15, 1991, Licensees filed with the NRC a supplement to a previously proposed license amendment to remove the reactor vessel material surveillance program withdrawal schedule from the Technical Specifications of the Perry license and relocate the schedule to the Updated Safety Analysis Report (USAR). This action was proposed in furtherance of the NRC's Policy Starement on Technical Specification Improvement (52 Fed. Reg. 3788 (1987))

and pursuant to Generic Letter 91-01. Generic Letter 91-01 encourages licensees to relocate the reactor vessel material sur-i veillance program schedule because approval of the schedule is already governed by 10 C.F.R. Part 50, App. H, and Technical 9

Specification provisions are duplicative.

i

On July _24, 1991, the NRC published in the Federal Register a notice that it was considering the amendment, a proposed deter-

~

mination that the amendment involves no significant hazards con-sideration, and a notice of opportunity to request a hearing. 56 Fed. Reg. 33961 (1991). The notice advised that any petition to intervene "shall set forth with particularity the interest of the petitioner in the proceeding."

Cn August 23, 1991, OCRE and Susan Hiatt jointly filed a Petition for Leave to intervene and Request for Hearing (the

~

" Petition"). Petitioners sought to cnallenge only the proposed withdrawal of tha reactor vessel material surveillance program schedule from the Technical Specifications and to do so only cn l the legal theory that any license amendment that might' deprive members of the public of future hearing opportunities violates [

- section 159 of the Atomic Energy Act. OCRE claimed representa-  ;

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tional standing based on the interest and authorization of its

member, Susan Hiatt. . Susan Hiatt indicated that she lived within 15 miles of the plant, but-alleged no injury'other than to-an ,

- asserted right under the Atomic Energy Act to participate-in -

l-chances in plant operation. Affidavit of Susan L. Hiatt (Aug, i.

I 21, ~ 1991') , attached-to the Petition, i'

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The Petition was referred-to an Atomic Safety and Licensing-Soard for ruling, and Licensees and the NRC Staff filed answers opposing the Petition because Petitioners nad not demonstrated l

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standing. Both Licensees and the NRC Staff argued that the pureiy legal l'.t eres t asserted by Petitioners was, without more,

.c.suf f i c i ent to confer standing 3y Crder dated Octcber 28,

'991, the Licensing Board afforded Pet:rioners an opportunity to smenc the Pet:tien and address the argunents at Licensees and the NP.C Staff.

On November 22, .991, Peti:ioners filed Petitioners' Amended Fetition for Leave to Intervene. Petit:aners continued to argue that their purely legal .nterest was suificient and alleged no

tner im ur"! or basis for standing. Licensees and the NRC Staff responded to tne Amended Pet:tioner a n s1 reaf(.1'rmed their argu-

,i ents that Petitioners lacked standing *'

n a Memorandum and Order (Ruling on Intervantion Petition),

dated March 18, 1992, the Licensing Board denied the Petition cecause of Pe itioners' failure to demonstrate standing. Cleve-land Electric illuminating Co.. (Perry Nuclear Power Plant, Unit No. 1), L3P-92-4, _ N.R.C. ( s l i o. o n. . March 13, 1992). The ,

icensees' Answer to Chio C1tizens for Responsible Energy,

nc. and Susan L. Hiatt Petition for Leave to Intervene and Recuest for Hearing (Sept. 6, _991): NRC Staff inswer to Petit;on for Leave to :ntervene Filed By Ohio Citicens or Resoonsible Inergy and Susan L. H.att (Sept. ;2, .991).

s/ L.censees' Pesponse to Ohio Citizens for Respons cle Energy,

nc. and Susan L. Hiatt Amended Petition for ..e av e to Intervene

-Dec. 1/, 1991); NRC Staff Response to CCPE's Wended Petition

-s,ec.

- i, 179i).

_. - - a

Licensing _ Board found Petitioners' assertion of purely legal injury insufficient for three reasons.

First, the Licensing Board found that Petitioners' allega-

on that1their future participation in NRC proceedings might be affected was too remote and speculative to establish standing.

id. at 16-17. Relying on well established judicial precedents,

he Board ruled that "[a)1though a future injury can_ meet the )

i.3ury in fact- test, it must be one that is realistically threat- i aned and immediate." id, at 17 The Board noted that Petition-ers claimed no actual present harm, but only that future changes in the withdrawal schedule might occur, that Petitioners might

,ct _ receive notice of the changes, and that Petitioners might lose.an opportunity to participate in the future matter. Id. at 16-17. The Board therefore found that any possibility of future harm depended on a number of uncertain and unlikely events. Id.

at 17.

Second, the Licensing Board found that the speculative harm

. asserted by Petitioners was founded on an erroneous premise. Id.

-at 17-13. As explained by the' Board, contrary to Petitioners' presupposition of-an absolute right under section 189(a) of the Atomic Inergy Act, 42 U.S.C. .S 2239(a).(1988), to participate in any future license amendment proceedings,

. . . Section 189taf 'does not confer the automatic right of intervention upon anyone.' Rather, section

.139(a) . grants participatory rights only to those

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k-persons who .first establich, inter alia, that they ". ave standing to intervene.

14. at 13, citing Union of Concerned Scientists v. NRC, 920 F.2d 50, 55 (D.C. Cir. 1990) (footnote onitted). Because Petitioners had not demonstrated that they would have standing to intervene

-In a future proceeding considering changes to the reactor vessel material surveillance program schedule, there was no basis to assume that the proposed removal of the schedule from the Techni-cal Specifications would have any affect on their future partici-pation. The Board concluded, "the petitioner has not demon--

strated . . . standing so section 189(a) cannot be used as the bootstrap to establish it." id.

Finally, the Licensing Board ruled that the purported harm cla.med'by Petitioners failed to pass the injury-in-fact test because it had no causal link to any substantive regulatory

^? pact, t

. . . [Sltanding cannot be properly predicated upon the 1 denial of a purported procedural right that is uncou-pled from any injury caused by the substance of the s' challenged license amendment. As the District of Columbia Circuit has stated. "before we find st nding ~

.in_ procedural injury cases, we must ensure that :here is some connection between tne alleged procedural-

, injury'and a substantive injury that would_otherwise-confer , . . standing. Without such a nexus, the pro-cedural injury doctrine could swallov [the-injury in fact) standing requirements."

lj. at 19-20, citinc: United Transa.-Union v.

CC, 391 F.2d.908,

'915'(D.C. Cir. 1989), cert, d e n -l ed , 110 S. Ct. 3271 t1990).

i 1

ARGUMENT Petitioners raise four arguments in their challenge to the

  • Licensing Board's ruling on standing: (1) that Petitioners'

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admission that the proposed withdrawal of the reactor vessel material surveillance program schedule involves no significant hazards consideration does not signify lack of injury (App. Br.

at 8); (2) that legal injuries can confer standing (App. Br. at 10); (3) that section 189(a) does vest absolute hearing rights; and (4) that the Licensing Board abused its discretion by failing to consider discretionary interventicn. Licensees address seriatim below each of Petitioners' arguments, wnich are in large 7/

measure irrelevant.*'

1/ Petitioners also discuss, in the " Background" section of their brief, the merits of the legal contention they sought to raise in the license amendment proceeding. This-issue is not--a proper subject for appeal, because the Licensing Board, having

_ denied the Petition for lack of standing, never reached the issue.. -In.any event,- Petitioners are clearly wrong in contencing ,

the vithdrawal of the reactor vessel material specimen schedule-from-the_ Technical Specifications violates Section 189(a) of the Atomic Energy Act by reducing a member of~the public's ability to participate in_ future proceedings.

If Petitioners' contention were~accected, no_ requirement could ever be deleted from a license because the deletion would eliminate the1 possibility of a proceeding to change the requirement in the future. Contrary to the inflexible implication of Petitieners'. contention, sect:an IB2(a)Lof'the Atomic Energy Act, 4 2 L'SC 5 2232(a) (1986), :onfers or the.NRC broad discretion to define what Tecnnical Specifica-tions are necessary in a license, and this authority necessarily-carries with it tne power to redefine suen requirements.

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-l I. PETITIONERS NEITHER ALLEGED NOR DEMONSTRATED ANY

!MMEDIATE,-PALPABLE HARM ESTABLISHING STANDING Petitioners' first argument, that the NRC's no significant hacards_ consideration finding does not signify lack of injury, is.

irrelevant and misses the point of the Licensing Board's ruling. I

\

The Board's decision did not depend on the NRC Staff's no signif- l

-1 icant hazards finding, but on Petitioners total failure to allege  !

or demonstrate a distinct, real, and palpable harm constituting injury in fact, as is required by Supreme Court-decisions.4/

In examining Petitioners' claims, the Licensing Board did note Petitioners' statement that Petitioners agree with the Licensee and NRC Staff that this portion of the proposed amendment (the withdrawal ,

of the schedule} is putely an administrative matter whicn_ involves no significant hazards considerations.

i Petition-at 5. But what was of manifest significance to the Licensing Board was not the reference to no significant hazarde consideration, but to Petitioners' description of the license amendment-as " purely an administrative matter." The Licensing i

Soard concluded, based on this concession and absolutely no alle-

- gation or demonstration by Petitioners to the contrary, As solelv an administrative change, the instant licens--

ng action has no effect_on any of the petitioner's asserted interests tn preserving her life,- health, livelihood, prspo ,

or the7 environment. Hence, tne e4. -upu=#

I/ See, e.g., Warth v. Seldin, 422 U.S. 490, 501 (1975); Los Angeles v. Lvons, 461 U.S. 95, 102 (1983); United States v. i R i c h a rd s o n .- 418 U.S. 166, 177 (1974).

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I essential causal nexus between the petitioner's alleged narm and the challenged license amendment is minuing.

LBP-92-4, slip op, at 15 temphasis added).

Even aov, Petitioners cannot and do not allege any immedi-ate, real, palpable harm. As the petitioner and proponent of an order grant.ng intervention, the demonstration of standing was 4

Petitioners burden, which they failed to meet. There is not one f whit of evidence or the slightest suggestion that the license amendment vill have a real, palpable affect on Petitioners. The i only purported injury that Petitioners have ever alleged is asserted-diminishment of possit opportunity-to participate in future proceedings--the so-called legal injury which the Licens-ing Board found insufficient. l l

II. THE HERE ALLEGATICN OF A PROCEDURAL INJURY, WITHOUT ANY f DEMONSTRATICN OF SUBSTANTIVE HARM, WAS NOT SUFFICIEN. i TO CONFER STANDING l i

Petitioners' second argument, that legal injuries can confer i t

standing, is also off the mark, because Petitioners fail to rec- l 1

ognize the difference between substantive and procedure rights.  ;

i Petitioners' argument also flies in the face of considerable case j i

law.

First, the issue that the Licensing Board faced was not i

vhether standing could ever ce predicated in any case on an infrint ment-of a legal-right.- Clearly, there are important sub-i stantive rights, such as >

r gnts or the right to counsel, i I

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which are created by statute and if infringed confer standing in j an appropriate forum. Rather, the issue the Licensing Board -

faced sas whetner the mere allegation that an asserted procedural l right to participate in future proceedings might be diminished by 3 a proposed action is, without more, sufficient to confer stand-ing. The possibility that an alleged injury to other types of l legal rights and interests under other statutes might confer -

standing in other proceedings is irrelevant to this limited issue.

n considering whether mere allegations of a procedural injury create standing, the Licensing Board reviewed a nunter of judicial decisions on point and placed particular reliance on "ni';ed Transp. Union, guapyl, and Capital __ Legal Foundalion v. Com_-

modity credit Corp., 711 F.2d 253 (D.C. Cir. 1983).5 '

t 1/ The Licensing Board's rejection of procedural injury as a basis for standing, in the absence of an actual substantive

- injury, is also supported by Wilderness Society v. Griles, B24 ,

F.2d 4, 19 (D.C. Cir. 1987); Telecommuni_ cations Research and  !

l

,.ction Center V. FCG, 317 F.2d_585, 588 (D.C.

Cir. 1990). Addi-tional support may be garnered-from cases considering nonccmpli-i ance with procedures under the National Environmental Policy Act (NEPA). See People for the Ethical Treatment of Animals v. HSS,

, 917 F,2d 15, 17 (9th Cir. 1990)-(allegat:on of failure to comply vith NEPA requirements was not sufficient to confer standing when  :

plaintiffs did not allege that any environmental deterioration '

resulted_from the NEPA violations); Bov<er v. Morton,=541 #.2d 1347 1350 (9th Cir. 197611(same);-Los Anaeles v, NHSTA, 912 F.2d- ,

473, 192 (D.C. Cir. 1990), cert, dentad, 412 S. Ct. 225 _1992)

("The procedural and informational thrust of NEPA gives rise to a cognizabit injury frcm deniai of its explanatory process, so lonq

! -as tnere is a reasonaole~ risk

  • hat environmental harm may Occur)

l (empnasis added); Foundation on Econ. Trends v. Lynq, 943 F.2d I 79, e4 (D.C.:Cir. 1991).

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Petitioners identify no error in the Licensing Board's analysis or application at these precedents,N! and consequently no provide  !

no basis to overturn the Licensing Board's ruling.

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As discussed above, in U.nited Transp.___ Union. the U.S. Court of Appeals for the D.C. Circuit held, "before we find standing in procedural _ injury cases, we c.ust ensure that there is some con-  ;

nection between the alleged procedural injury and a substantive l in]ury that would otherwise confer . . . standing. . . , Without such a nexus, the procedural injury doctrine could swallow (the injury in fact) standing requirements." 391 F.2d at 918. In the i

$/ In their Appellate 3rief (App. Br. at 11-12), Petitioners do '

attempt to distinguish an example that was posited in United

. Iransp. Union (891 F.2d at 916-19) and repeated in the Licensing Ecard's decision (LDP-92-4, slip op. at 20 n.48). In United Tranto. Union t the Court musedt Consider, for example, what would happen if the ICC adopted d rule stating that any American could intervene in an ICC  ;

4 proceeding to challenge any interlocking directorate between two railroads, and then repealed that rule. Would every American be entitled to sue alleging that he or sne suffered ,

a-procedural injury when the right to intervene was revokodi  !*

, Surely, some showing that interlocking directorates usuld be likely to injure the complainant should be requ i red.  ;

L Indeed, if procedural injury alone suffice ( co confer-Arti-l cle !!! standing, any American could sue any agency alleging -

that it is. arbitrary and capricious not to have a procedure by which they can challenge agency action.

Petitioners claim that this example is readily distinguished, because the hypothetical _ agency rule is entirely discretionary vne reas - tnis --:ase is-based on the mandate of section 189(a) of _

the Atomic Energy Act. This distinction fails, because the NRC defines the contents of licenses and hence license amendment pro-ceedings under section 189(a), and section 139(a) only allows part:cipation by persons who demonstrate standing.

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I case at bar, Petitioners es+ablished no nexus between their legal complaint and a substantive injury.

This same principle is repeated in cap _ ital Legal. Foundation

v. Commoditv Credi_t_ corp., 711 F.2d 253 (D.C. Cir. 1983). Like Petitioners, Capital Legal Foundation sought to raise a purely legal challenge to an action taken by a government entity. It argued that Commodity credit Corporation ("CCC") had vio..ited its regulations in the way that it had dealt with certain U.S. credi-tors of Poland. Capital argued that is was injured because the CCC's actions jeopardized Capital's task of informing the public  !

of the econoa.!c i.mpact of proposed regulatory changes and I deprived it of the opportunity to have its comments considered  !

before the CCC reached its final decision. Id. at 253. Capital conceded that it had suffered no injury from the underlying sub- ,

stantive action by CCC, and Court concluded that Capital there-fore lacked standing.

The Licensing Board found that the injury alleged and found insufficient in facital Lecal Foundatio_n directly paralleled Petitioners' claims in tne proceeding before it, and further i

found no basis to distin uish the cases. g Remarkably, Petitioners do not even mention Capital Legal Foundatior; in their Appellate Brief, provide no. basis to-distinguish that case or United Tranco. Union, and-point to.no weakness or error in_the Licensing j l Board's reasoning.- :n the absence of any meaningful challenge or

argument, the Licensing Board's application of Clipital Legal Foundat ion and United Transp. Union is dispositive.

1 111. EVEN IF A LEGAL CR PROCEDURAL INJURY WERE SUFFICIENT I TO CONFER STANDING, PETITIONERS FAILED TO DEMONSTRATE SUCH INJURY Even if one assumed arguendo that a procedural injury alone i could conf er standing, the Licensing Board's ruling must still be sustained, because Petitioners never demonstrated that they had a legal right that would be injured. Petitioners never demon-  ;

strated their entitlement to participate in future proceedings.

More specifically, Petitioners never showed or alleged that they would have standing to intervene in the future proceeding; and without this showing, there was no basis for their claim of a

" legal right" that was being diminished.

In their third argument, Petitioners now seek to sidestep ,

this fatal defect in their pleading by asserting an absolute right to a hearing under section 189(a). App. Br. at 12-14.

Petitioners take issue with the Licensing Board's assertion that

section 189(a) " bestows no legal or vested right . . . to partic-ipate in agency licensing actions." Id. at 13. Petitioners claim that in making this pronouncement,- the Licensing Board mis-interpreted Union of Concerned Scient ists v. NRC, 920 F.2d. 50 (D.C. Cir. 1990), as vitiating section 189(a). id. ,
Petitioners' arguments lack merit. One r.eed only exaraine  ;

section 139(a) itself to recognize that it vests no absolute

-t-i i

, . .ca<:ag right in anyone.- Section 189(a) requires a hearina in a i

! license amendment proceeding only when such a hearing is {

i

,! requested by a " person whose interest may be affected by the pro-ceeding." 42 USC 5 2239(a) (1988). Thus, any entitlement to a hearing under section 189(a) is predicated on a showing of standing, ,

I In two separate decisions, the U.S. Court of Appeals for the  !

D.C. Circuit has_ recognized this limitation. UCS, supra; BP_I v. -

AEC. 502 F.2d 424, 4:8 (D.C. Cir. 1974). In those cases, the Court stated that section 189(a) "does not confer the automatic right of intervention upon anyone." UCS, 920 F.2d at 55! BPI v s AEc, 502 F.2d at 428. Contrary to Petit ioners' assertions (App.

Dr. at 13), the Licensing Board's interpretation of these cases was correct and did rot purport to " erase () Section IS9a f rom the >

Atonic Energy Act." The Board's interpretation was consistent with the express linitation in section 189(a).

eferring to this obvious and well recognized limitation in section 189(a), the Licensing Board stated:

Contrary to the petitioner's appccent belief, section 189(a) does not give the petitioner an absolute, auto-matic right to intervene in NRC licenuing proceedings.

  • That provision bestows no legal or vested right on

{petitionerj to participate in agency licensing actions.

LBP-92-4, slip op. et 18. BecausesectionIS9(a5doesnot confer absolute and-automatic rights of intervention upon Pet'.tioners,

-14_

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and because Petitioners did not demonstrate that they would have standing entitling them to intervene in a future proceeding con-sidering changes to the withdrawal schedule, Petitioners did not demonstrate any " legal right" that was being diminished.

IV. PETITIONERS FAILED TO ADVOCATE DISCRETIONARY INTERVENTION IN THE PROCEEDING BELOW AND CANNOT RAISE THIS ISSUE FOR THE FIRST TIME ON APPpAL Petitioners' last argument is that the Licensing Board abused its discretion oy failing to consider the option of dis-cretionary intervention. At the outset, it is unclear whether j the concept of " discretionary intervention" is or should be applicable to license amendment proceedings such as the case at

\ bar.7 / >

The Commission, however, need not reach this issue. Even if f I the concept of discretionary intervention did apply, it was Peti-tieners' responsibility to raise the issue with the Licensing ,

3oard, and the burden of convincing the Licensing Board lies with 1/ Discretionary intervention i; a concept that was developed in construction permit proceedings, vnere hearings are mandatory ,

and a Li. censing Board has s,bstantive jurisdietion over all +

j issues even in the absence of . intervention. See generally Portland General Electric Co. (Pebble Springs Nuclear Plant, l Units 1 & 2), CLI-76-27, 4 N.R.C. 610, 616 (1976). In that set-ting, where a hearing is proceeding in any event, it is not a ,

t

-remarkable proposition that a Licensing Board could allow a per-son to participate on an issue-even though formal standing requirements had not oeen_ met. But in a license amendment pro-Oeeding such as_this, the Licensing Board has_no_substanti_ve jurisdiction--no authority to proceed with a hear.ing--until it '

finds that a hearing has Deen requested by an intervenor with standing and until an admissible contention is admitted.

. . - - - . - _ _ _ . . -_.-~..___._.-._ _ _ . _ __ _ . , _ _ _ .,_ _ _. ,... .__. _ - ,_ __ _. ._,_.,. _ -.__- _ ,_, - ., ,.,_. _

1

'. l l

i the petitioner. Nuclear _Enoineerina Co., Ing. (Sheffield, 111.

Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 N.R.C.

'37, 745 (1978). Petitioners made no attempt to raise this issue with the Licensing Board or to justify intervention on this basis.

Having failed to raise the issue of discretionary interven-tion with the Licensing Board, Petitioners cannot now raise this issue for the first time on appeal. Georcia Power Cg. (Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 N.R.C.

127, 132 n.13, 133 (1987); Washinoton Public. Power Supphjj_t_, ;j cn o (WPPSS Nuclear Project No. 3), ALAB-747, 18 N.R.C. 1167, 1177 n.29 (1983); Puerto Rico Electric Power Autho/ity (North Coast Nuclear Plant, Uni: 1), ALAB-648, 14 N.R.C. 34, 37 (1981).

"Failing either to raise satisfactorily a particular factual issue or . . . to express himself in the prescribed manner regarding how that issue should be resolved, [an intervenor} is scarcely in a position, legally or equitably, to protest the determinations made by the Board in connection with it." North-i ern_ States Power Co2 (Prairie Island Nuclear Generating Plant, l

Units 1 and 2), ALAB-244, 8 A.E.C. 857, 864 (1974).

t i

i l

i F

! CONCLUSION t

t For all of the reasons stated above. the Licensing Board's

)

Memorandum and Order (Ruling on Intervention Petition) should be i

l affirmed and Petitioners' appeal denied.

I Respectfully submitted, fM [ k.

J ' E D ^ / i' Siloerg,P.g R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE i

2300 N Street, N.W.

i Washington, D.C. 20037 ['

l Tel. (202) 663 8000 ,

l Counsel for Licensees ,

i Dated: April 17, 1992 ,

?

i I

+

9 l

l

' -- . _ . , . . . _ ~ _ . - . _ _ _ . _. ,.,,,_ _ ,,_ . _ _ . , , _ . _ _ _ _ . - _ . . . , _ , . , . . ,

UNITED STATES OF AMERICA nt ;i t, NUCLEAR REGULATCRY COMMISSION J WHC Before the Commissioners '92 APR 20 f40:00

,,o .,;,ii [j ;'

) ~^k" In the Matter of

)

THE CLEVELAND ELECTRIC )

ILLUMINATING COMPANY, et al. ) Docket No. 5"-440-OLA-3

)

(Perry Nuclear Power Plant, )

Unit No. 1) )

CERTIFICATE OF SERVICE

! hereby certify that copies of " Licensees' Brief in Opposi-tion to the Appeal of OCRE and Susan L. Hiatt," dated April 17, 1992, vere served by deposit in the U.S. Mail, first c1'ss, a post-age prepaid, this 17th day of April, 1992, upon the person listed on the attached service list.

l

/ 4f Ja ./Silberg /

Dated: April 17, 1992 4

I f

l

_ _ _ _ . - . . = - _ _ _ _ . _ _ _ . - _ . _ _ _ _ _ _ . _ _ _ _ _ - . . . _

+

.t,r i :u

pv.C UNITED STATES OF AMEftICA '

l NUCLEAR REGULATORY COMMISSION 97 p 20 90 10  ;

ptL{ ore the Commissioners ,

s o; a n .*
{ ;

In the Matter of )

"d N

)

) THE CLEVELAND ELECTRIC )

ILLUMINATING COMPANY, et al. ) Docket No. 50-440-OLA-3

)

(Perry Nuclear Power Plant, ) >

Unit No, 1) ) 4

)

. SERVICE Lis?

-i Docketing ar.d Service Branch Colleen P. Woodhead, Esq. t Office of the Secretary Office of the General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Ccmission Washington, D.C. 20555 3

Washington, D.C. 20555 Th0 mas S. Moore, Esq., Chairrun Office of Commission App (llate Atomic Saf ety and 'sicensing ,

Adjudicatien Board Panel U.S. Nuclear Regulatcry Comission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 C0mnissioner Ivan Selin, Chairman Dr, Richard F. Cole i

U.S. Nuclear Regulatory Comission Atcmic Safety and Licensing Washington, D.C. 20555 Board Panel U.S. Nuclear Regulatory Ccm1 ssion C;mmissioner Kenneth C. Rogers Washington, D.C. 20555 -)

U.S. Nuclear Regualtory Commission ,

Dr. Charles H. Kelber Washington, D.C. 20555 Atomic Safety and Licensing .

Co=issioner James R. Curtiss Board Panel U.S. Nuclear Regualtory Commissicn U.S. Nuclear Regulatory Commission l' Wabhir.qton, D.C. 20555 Wachington, D.C. 20555 i

CO=1ssioner Forrest J. Remick Ms. Susan 111att U.S. Nuclear Regualtory Comissien 8275 Munson Road Wasnington, D.C. 20555 Mentor, Ohio 44060 C =1ssioner _ E. Gail de Planque 3 U.5; Nuclear Regualtory Comissten Washington, D.C. 20555 l

.~_...n....... -

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