ML20112D872

Intervenor Brief in Support of Commission Affirmation of LBP-95-17.* Commission Should Affirm Licensing Board Decision.W/Certificate of Svc

ML20112D872
Person / Time
Site:	Perry
Issue date:	05/29/1996
From:	Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY
To:	NRC COMMISSION (OCM)
References
CON-#296-17662 LBP-95-17, OLA-3, NUDOCS 9606050060
Download: ML20112D872 (11)

Text

. / ?W UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00 E ED p

Before the Commission

'96 W,Y 31 P3 :04 In the Matter of ) 0FFICE OF SECRETARY

) DOCKETIM & SERVICF THE CLEVELAND ELECTRIC ) RP MP'?1 ILLUMINATING CO. et al. ) Docket No. 50-440 OLA-3

)

(Perry Nuclear Power Plant, )

Unit 1) )

)

)

INTERVENORS' BRIEF IN SUPPORT OF COMMISSION AFFIRMATION OF LBP-95-17 INTRODUCTION Pursuant to CLI-96-4, Intervenors Ohio Citizens for Respon-sible Energy, Inc. ("OCRE") and Susan L. Hiatt hereby file their brief in response to the briefs filed by Licensees and NRC Staff, both filed on April 26, 1996.

STATEMENT OF THE CASE Intervenors hereby adopt the Statement of the Case presented by Licensees in their brief.

ARGUMENT I. THE LICENSING BOARD'S ORDER IS NOT ERRONEOUS 4

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In LBP-95-17, the Licensing Board ruled that da fceto- 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 189 (a) of the Atomic Energy Act, as license amendments explicitly labeled as such.

Contrary to Licensee and Staff assertions, the Licensing Board's decision is not erroneous. It is entirely consistent with the Atomic Energy Act, the governing case law, and the NRC 's Principles of Good Regulation, i. e. , " Openness - nuclear regula-tion- is the public 's business . . ."

l A. Licensees complain 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." Licensees ' Brief at 6, 8. Licensees apparent-ly missed the point of the Board's order and of the governing court decision, Citizens Awareness Network 2 REC, 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 la 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:

CAN contends that Commission approval of YAEC's CRP violated AEA section 189(a), which requires the Commission to grant a 2

.hsering upon rsquest 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 1 permitted under the pre-1993 POL, namely, major component '

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, 59 F.3d at 294-295. i It is of crucial importance that petitioner CAN's AEA argu-  :

1 ment was virtually 4dantieni to that of Intervenors in this proceeding. .The Court indeed did lay dowt the broad rule of law that de facto license amendments are in fact subject to the 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 CAE decision, the NRC bound itself to its holdings. CAH is now the governing precedent on this matter, and any previous decisions to the contrary, including those cited by Licensees and the Staff, are simply no longer controlling.

After the First Circuit's mandate issued, the Licensing Board simply could not have reached any other conclusion.

B. Licensees also complain that the Board's order eliminates 3

materiality as a requirement for a hearing under the AEA. Licen-sees ' Brief at 21-23. 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 4

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 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-dix H,Section II.B.3." Id. I Licensees and the Staff do not agree with the Licensing I Board's interpretation of 10 CFR 50 Appendix H. But that hardly equates with eliminating materiality as a condition of Section 189a hearing rights.

C. Licensees assert that the Board's order is erroneous 1 because it rejects the Staff 's " reasonable" interpretation of l Appendix H. Licensee 's Brief at 23-24. However, it is Licen-sees and the Staff who are in error.

Licensees and the Staff imply that the Staff's interpreta-l tion of the NRC 's regulations should somehow be binding on the i Licensing Board. However, nothing in the NRC's body of case law supports this hypothesis.

In fact, the case law supports the opposite conclusion.

"CT]he staff does not occupy a favored position at hearings. . .

In short, the staff 's views 'are in no way binding upon" the 4

boards; they cannot be accepted without passing the same scruti-ny as those of the other parties." Consolidated Edison Ca. af den York, (Indian Point, Units 1, 2 , & 3 ) , ALAB-304, 3 NRC 1, 6 (1976).

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 the unambiguous language of the regulation, and not the subse-quent revisionist regulatory history supplied by the Staff, to be persuasive. Order at 12-22. Licensees do not cite any authori- l l

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." Licensees' Brief at 24.

Licensees find ambiguity in Appendix H, Section II.B.3 in that "[i]t does.not specify whether it is only the initial sched-ule that must be approved or whether changes to that schedule must also receive prior approval." Id. This argument is sophis-try.

Any proposed schedule is a proposed schedule. It matters not whether it is a proposed initial schedule or a proposed 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

" literal terms, a new schedule or any change to an already imple-5

mented schedulo, significant or otherwise, must be considered a

' proposed' schedule and, as such, must be submitted to the agency 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 could have simply ceased its analysis with no further regard for the Staf f 's interpretation. But the Board did consider the Staff's position, and found it wanting. Order at 18-22. Licen-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.

In its brief before the Commission, the Staff repeats its interpretation of 10 CFR 50 Appendix H. Given the discrepancy between the Staff's interpretation and the plain language of the regulation and the agency's statements in Generic Letter 91-01, the Licensing Board was entirely correct and reasonable in label-ing the Staff's interpretation as " subsequent revisionist histo-ry," which is not valid regulatory history. Order at 20, n. 21.

The Commission should similarly disregard such an obviously  ;

l invalid interpretation. l The Staff 's argument that agency review of withdrawal sched-ules is merely a nra forma determination of compliance with ASTM standards, and thus, not appropriate for an adjudicatory hearing (cf. 5 USC 554 (a) (3)) (Staff's Brief at 22) is at odds with the agency's practice of offering the opportunity for a hearing for correction of typographical errors in technical specifications.

Under agency practice, there is the opportunity for a hearing on 6

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any license amendment, no matter how trivial. It is the determi-nation that an action is a license amendment, not the signifi-cance of the amendment, that triggers Section 189 (a) hearing rights. But, under CAH, the agency is not entitled to cavalierly wield its power to designate actions as license amendments:

The Commission correctly points that we have observed that the term " amend," as used in section 189 (a) , is to be con-strued quite--literally. Eng Commonwealth af Maas. x.

United States Unclear Regulatory Comm'n, 878 F. 2d 1516, 1522 (1st Cir. 1989). But we were careful to note as well that it is the substance of the NRC action that determines entitlement to a section 189 (a) hearing, not the particular label the NRC chooses to assign to its action. Id. at 1521 (citing Columbia Broadcastina Svst. Inc. x United States, 316 U. S. 407, 416, 62 S.Ct. 1194, 1199- 1200, 86 L. Ed. 1563 (1942)).

CAR, 59 F.3d at 295 (emphasis in original, footnote omitted).

Cf. Sholly is_ REC., 651 F. 2d 780, 791 (D. C. Cir. 1980), vacated on.

other grounds, 459 U.S. 1194 (1983): an action which grants a licensee the authority to do something it otherwise could not !

have done under the existing license authority is a license amendment within the meaning of the Atomic Energy Act.

II. THE SIGNIFICANCE OF 5 USC 551(8) AND (9)  ;

i Although not argued in the proceedings below, the Commission in CLI-96-4 directed the parties on review to address the signif-icance for this case of 5 USC 551(8) and (9) . While basing their argument before the Licensing Board on AEA Sec. 189 (a) , Interven-ors find that the APA bolsters their argument and further compels affirmation of LBP 17.

These specific provisions of the APA state:

(8) " license includes the whole or a part of an agency permit, certificate, approval, registration, charter, me m-7

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bership, statutory exemption an other form at oermission; (9) " licensing" includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment,  !

withdrawal, limitation, amendment, modification, or condi- l tioning of a license; (emphasis added). As the courts have noted, these definitions are extremely broad. Air North Amarica y Denartment af Trann-portation, 937 F.2d 1427, 1437 (9th Cir. 1991); Atlantic Rich-field Co. r_ United States, 774 F. 2d 1193, 1200 (D.C. Cir. 1985);

Blackwell College af Business ym Attorney General, 454 F.2d 928, 933 (D.C. Cir. 1971).

As Licensees and Staff point out, the underlying substantive statute, not the APA, determines the obligation of an agency to hold a hearing on agency actions. However, since the fundamental question presented below was "When is a regulatory or licensing action an amendment within the meaning of Section 189 (a) of the Atomic Energy Act?" (1), the breadth of the APA definitions serves to buttress the holding of Shelly, suora.

I CONCLUSION 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 (1) See Intervenors' Answer to NRC Staff Response to Intervenors' Motion for Summary Disposition and Licensees ~ Cross Motion for Summary Disposition, April 5, 1994, at 3.

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l First Circuit Court of Appeals in the CAR decision, a case l directly on point.  ;

1 Nor does the Order raise substantial and important questions

.of law and policy that were not previously considered when the l Commission declined to appeal the CAH. decision. Having bound ,

itself to the CAH holding, the NRC must now achieve its generic l application for the protection of public participation rights.

Intervenors and the petitioners in CAN raised the same 'j legal issue: whether Section 189 (a) 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.

The instant matter is but one example of the massive removal of items from nuclear power plant technical specifications, the consequence of which is the diminished universe of potential operating license amendments for which the AFA guarantees hear-ing rights. Intervenors hope that this is not the intended 1

consequence of simplified technical specifications; however, others may not be as charitable in their assessment of the NRC's motives. Regardless of the intentions, the result is that public hearing rights are eroded. " Congress vested in the public, as well as the NRC Staff, a role in assuring safe operation of nuclear power plants." Union af concerned Scientists 2. HRC, 735 F.2d 1437, 1447 (D.C. Cir. 1984) (emphasis added). The public cannot fulfill this role if hearing rights are being vanished through semantic sleight-of-hand.

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e The erosion of opportunities for a hearing by lab 31ing l

l agency actions as something other than license amendments may at l face value seem a clever ruse, but it has not withstood judicial scrutiny in CAR. The Licensing Board likewise has declined to endorse such a ploy.

Intervenors conclude that the Commission should affirm the Licensing Board 's decision.

Respectfully submitted, pg . ,

/d 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: May , 1996 l

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. CERTIFICATE OF SERVICE This is to certify that copies of the foregoing were served by deposgi in the U.S. Mail, first class, postage prepaid, this CL9 day of May, 1996, to the following:

Office of Commission Appellate Adjudication U. S. Nuclear Regulatory Commission Washington, DC 20555 C3 O J Office of the Secretary 85 d' i x5 c3 l Docketing and Service , ,

U. S. Nuclear Regulatory Commission

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g j gbx Washington, DC 20555 zw$g,m$g 5g $3[] i o a m ,

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Administrative Judge Thomas S. Moore, Chairman 2d IT I Ex

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Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555 I l

I 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 Sherwin E. Turk, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 Jay E. Silberg, Esq.

Shaw. Pittman, Potts, and Trowbridge 2300 N Street, NW Washington, DC 20037 /

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S usan L . Hiatt