Similar Documents at Perry |
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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20212J1581999-09-30030 September 1999 Order Approving Transfer of License & Conforming Agreement. Orders That License Transfer Approved,Subj to Listed Conditions ML20205D4901999-02-22022 February 1999 Transcript of 990222 Informal Public Hearing on 10CFR2.206 Petition in Rockville,Md.Pp 1-105.Supporting Documentation Encl ML20198D9711998-11-0909 November 1998 Petition Per 10CFR2.206 Requesting That Facility Be Immediately Shut Down & OL Be Suspended or Modified Until Such Time That Facility Design & Licensing Bases Properly Updated to Permit Operation with Failed Fuel Assemblies ML20155F4561998-08-26026 August 1998 Demand for Info Re False Info Allegedly Provided by Wh Clark to Two NRC Licensees.Nrc Considering Whether Individual Should Be Prohibited from Working in NRC-licensed Activities for Period of 5 Yrs ML20236V5261998-07-20020 July 1998 Computer Access & Operating Agreement Between Cleveland Electric Illuminating Co & NRC PY-CEI-NRR-2284, Comment Opposing Proposed Generic Communication, Lab Testing of Nuclear-Grade Activated Charcoal1998-05-21021 May 1998 Comment Opposing Proposed Generic Communication, Lab Testing of Nuclear-Grade Activated Charcoal ML20216B5111998-04-0909 April 1998 Order Imposing Civil Monetary Penalty.Denies Request for Remission of Violation C,Ea 97-430 & Orders Licensee to Pay Civil Penalty in Amount of $50,000 within Next 30 Days PY-CEI-NRR-2269, Comment on Proposed Rule 10CFR50.NRC Should Demonstrate That Not Only Is Code Process Flawed,But That Proposed Change Justified from Cost Versus Safety Protective1998-04-0303 April 1998 Comment on Proposed Rule 10CFR50.NRC Should Demonstrate That Not Only Is Code Process Flawed,But That Proposed Change Justified from Cost Versus Safety Protective ML20216G3821998-03-11011 March 1998 Order Approving Application Re Merger Agreement Between Duquesne Light Co & Allegheny Power Systems,Inc ML20217J0661998-03-11011 March 1998 Order Approving Application Re Merger Agreement Between Dqe, Inc & Allegheny Power System,Inc ML20198P9311997-11-0707 November 1997 Comments of American Municipal Power-Ohio,Inc.NRC Should Require Allegheny Power Sys,Inc to Affirm That Capco Antitrust License Conditions Will Be Followed ML20134L3401997-01-22022 January 1997 Resolution 96-R-85, Resolution Supporting Merger of Centerior Energy Corp & Ohio Edison Under New Holding Co Called Firstenergy ML20133B6941996-12-18018 December 1996 Submits Ordinance 850-96 Re Approval of Merger of Centerior & Oh Edison Into Firstenergy ML20135F4731996-12-0606 December 1996 Memorandum & Order CLI-96-13.* Commission Reverses & Vacates ASLB LBP-95-17 Which Granted Motion for Summary Disposition Submitted by Ocre & Hiatt.W/Certificate of Svc.Served on 961206 ML20132A8461996-12-0202 December 1996 Resolution 20-1996 Supporting Merger of Ohio Edison & Centerior Corp Under New Holding Company Called Firstenergy ML20134M6191996-10-28028 October 1996 Proclamation of Support by City of Sandusky,Oh Re Merger of Ohio Edison and Centerior Energy Corp ML20112J8281996-06-18018 June 1996 Licensee Reply Brief on Review of Licensing Board Decision LBP-95-17.* W/Certificate of Svc ML20112D8721996-05-29029 May 1996 Intervenor Brief in Support of Commission Affirmation of LBP-95-17.* Commission Should Affirm Licensing Board Decision.W/Certificate of Svc ML20108D9571996-05-0303 May 1996 CEI Response to City of Cleveland 2.206 Petition.Nrc Should Deny Petition ML20108B7571996-04-26026 April 1996 Licensee Brief on Review of Licensing Board Decision LBP-95-17.* Recommends That Commission Reverse Board Memorandum & Order Issued 951004.W/Certificate of Svc & Svc List PY-CEI-NRR-2034, Comment Opposing Proposed Rule 10CFR20 Re Reporting Requirements for Unauthorized Use of Licensed Radioactive Matl1996-03-11011 March 1996 Comment Opposing Proposed Rule 10CFR20 Re Reporting Requirements for Unauthorized Use of Licensed Radioactive Matl ML20101B5841996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement Or,In Alternative,For Severance of Issue & Expedited Hearing Procedures.W/Certificate of Svc ML20097B8721996-01-23023 January 1996 Petition of City of Cleveland,Oh for Expedited Issuance of Nov,Enforcement of License Conditions & Imposition of Appropriate Fines,Per 10CFR2.201,2.202,2.205 & 2.206 ML20097B8911996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement or in Alternative,For Severance of Issue & Expedited Hearing Procedures ML20096E2471996-01-0303 January 1996 Comment on PRM 50-64 Re Stockpiling Ki for Use as Thyroid Protectant in Event of Nuclear Accident.Supports Distribution of Ki to Public ML20094N1951995-11-17017 November 1995 Oh Edison Application for License Transfer in Connection W/ Sale & Related Transactions ML20094M5941995-11-15015 November 1995 Intervenors Answer to Licensees Petition for Review.* Intervenor Conclude That Commission Should Not Review Board Decision.W/Certificate of Svc ML20094J9141995-11-0707 November 1995 Petition for Review.* Submits That Commission Review of Board Decision Appropriate Under 10CFR2.786. W/Certificate of Svc & Svc List ML20093N9491995-10-23023 October 1995 Licensee Request for Extension of Time to File Petition for Review.* Requests That Commission Grant Extension Until 951107 of Deadline for Filing Petition for Review. W/Certificate of Svc ML20065L3571994-04-0505 April 1994 Intervenors Answer to NRC Staff Response to Intervenors Motion for Summary Disposition & Licensees Cross Motion for Summary Disposition.* Urges Board to Deny Licensee Cross Motion.W/Certificate of Svc ML20064N6341994-03-21021 March 1994 Affidavit of RW Schrauder in Support of Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.W/Certificate of Svc ML20064N6081994-03-21021 March 1994 Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.* Moves for Decision in Licensee Favor on Ocre Contention ML20064N9201994-03-21021 March 1994 Affidavit of RW Schrauder in Support of Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition. W/Svc List ML20063L4621994-02-0707 February 1994 Motion for Summary Disposition.* Intervenors Request That Board Grant Summary Disposition Favorably & Issue Declaratory Relief by Finding Challenged Portion of Amend 45 to Be in Violation of Aea.W/Certificate of Svc ML20058P4451993-12-13013 December 1993 Licensee Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Supplemental Petition for Leave to Intervene.* W/Certificate of Svc ML20059L9391993-11-12012 November 1993 Petitioners Supplemental Petition for Leave to Intervene.* Court Held That NRC May Not Eliminate Public Participation on Matl Issue in Interest of Making Process More Efficient. W/Certificate of Svc ML20059B1421993-10-19019 October 1993 Order.* Petitioners Shall File Supplemental Petition in Accordance W/Schedule in 931018 Order.W/Certificate of Svc. Served on 931020 ML20059B1761993-10-18018 October 1993 Order.* Informs That for Each Contention,Petitioners Shall Comply Fully W/Requirements of 10CFR2.714(b)(2)(i),(ii) & (III) & Their Filing Should Address Requirements Set Forth in Regulations.W/Certificate of Svc.Served on 931019 ML20059B0701993-10-12012 October 1993 Motion to Defer Consideration of Remanded Issue.* Requests That Licensing Board Defer Consideration of Remanded Issue Pending Outcome of Commission Review of 2.206 Process.W/ Certificate of Svc ML20058M8761993-09-30030 September 1993 Memorandum & Order CLI-93-21.* Appeal for Hearing Re Amend to Plant OL Denied.W/Certificate of Svc.Served on 930930 ML20057C0461993-09-21021 September 1993 Supplemental Director'S Decision DD-93-15 Involving 920929 Request for Certain Actions to Be Taken Re Proposed Construction of Interim onsite,low-level Radioactive Waste Facility at Plant.Request Denied ML20056C8951993-07-19019 July 1993 Order Extending Time within Which Commission May Rule on Petitions for Review of LBP-92-32.W/Certificate of Svc. Served on 930720 ML20045B5661993-06-0707 June 1993 Comment Re Proposed Generic Communication on Mod of TS Administrative Control Requirements for Emergency & Security Plans,As Published in Fr on 930401 (58FR17293).Believes Concept of Technical Review Not Addressed by STS ML20044E2781993-05-13013 May 1993 Comment Supporting Petition for Rulemaking PRM-50-58 Re VEPCO Petition to Change Frequency of Emergency Planning Exercise from Annual to Biennial ML20127A6171993-01-0606 January 1993 Order.* Time within Which Commission May Rule on Petitions for Review of Board Order LBP-92-32,dtd 921118,extended Until 930208.W/Certificate of Svc.Served on 930106 ML20126D5171992-12-23023 December 1992 City of Brook Park Answer to Petitions for Review.* Opposes Applicants 921208 Petitions for Review Based on Fact That ASLB Decision in proceeding,LBP-92-32,adequately Addressed Issues Raised in Petitions.W/Certificate of Svc ML20126F6501992-12-23023 December 1992 Answer of City of Cleveland,Oh,Intervenor,In Opposition to Petitions for Review of 921118 Decision of Aslb.* Petitioners Petitions for Review Should Be Denied. Certificate of Svc Encl ML20126D5461992-12-23023 December 1992 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Limited Petition for Review of City of Cleveland,Oh of 921118 Decision of Aslb.* Commission Should Deny City of Cleveland Petition.W/Certificate of Svc ML20126D5781992-12-23023 December 1992 Answer of American Municipal Power-OH,Inc in Opposition to Petitions for Review of Oh Edison Co & Cleveland Electric Illuminating Co/Toledo Edison Co.* W/Certificate of Svc ML20126D5801992-12-23023 December 1992 NRC Staff Answer in Response to Petitions for Review Filed by Oh Edison Co,Cleveland Electric Illuminating Co,Toledo Edison Co & City of Cleveland.* W/Certificate of Svc 1999-09-30
[Table view] Category:PLEADINGS
MONTHYEARML20198D9711998-11-0909 November 1998 Petition Per 10CFR2.206 Requesting That Facility Be Immediately Shut Down & OL Be Suspended or Modified Until Such Time That Facility Design & Licensing Bases Properly Updated to Permit Operation with Failed Fuel Assemblies ML20112J8281996-06-18018 June 1996 Licensee Reply Brief on Review of Licensing Board Decision LBP-95-17.* W/Certificate of Svc ML20112D8721996-05-29029 May 1996 Intervenor Brief in Support of Commission Affirmation of LBP-95-17.* Commission Should Affirm Licensing Board Decision.W/Certificate of Svc ML20097B8721996-01-23023 January 1996 Petition of City of Cleveland,Oh for Expedited Issuance of Nov,Enforcement of License Conditions & Imposition of Appropriate Fines,Per 10CFR2.201,2.202,2.205 & 2.206 ML20101B5841996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement Or,In Alternative,For Severance of Issue & Expedited Hearing Procedures.W/Certificate of Svc ML20094M5941995-11-15015 November 1995 Intervenors Answer to Licensees Petition for Review.* Intervenor Conclude That Commission Should Not Review Board Decision.W/Certificate of Svc ML20094J9141995-11-0707 November 1995 Petition for Review.* Submits That Commission Review of Board Decision Appropriate Under 10CFR2.786. W/Certificate of Svc & Svc List ML20093N9491995-10-23023 October 1995 Licensee Request for Extension of Time to File Petition for Review.* Requests That Commission Grant Extension Until 951107 of Deadline for Filing Petition for Review. W/Certificate of Svc ML20065L3571994-04-0505 April 1994 Intervenors Answer to NRC Staff Response to Intervenors Motion for Summary Disposition & Licensees Cross Motion for Summary Disposition.* Urges Board to Deny Licensee Cross Motion.W/Certificate of Svc ML20064N6081994-03-21021 March 1994 Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.* Moves for Decision in Licensee Favor on Ocre Contention ML20063L4621994-02-0707 February 1994 Motion for Summary Disposition.* Intervenors Request That Board Grant Summary Disposition Favorably & Issue Declaratory Relief by Finding Challenged Portion of Amend 45 to Be in Violation of Aea.W/Certificate of Svc ML20058P4451993-12-13013 December 1993 Licensee Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Supplemental Petition for Leave to Intervene.* W/Certificate of Svc ML20059B0701993-10-12012 October 1993 Motion to Defer Consideration of Remanded Issue.* Requests That Licensing Board Defer Consideration of Remanded Issue Pending Outcome of Commission Review of 2.206 Process.W/ Certificate of Svc ML20126D5781992-12-23023 December 1992 Answer of American Municipal Power-OH,Inc in Opposition to Petitions for Review of Oh Edison Co & Cleveland Electric Illuminating Co/Toledo Edison Co.* W/Certificate of Svc ML20126D5801992-12-23023 December 1992 NRC Staff Answer in Response to Petitions for Review Filed by Oh Edison Co,Cleveland Electric Illuminating Co,Toledo Edison Co & City of Cleveland.* W/Certificate of Svc ML20126D5171992-12-23023 December 1992 City of Brook Park Answer to Petitions for Review.* Opposes Applicants 921208 Petitions for Review Based on Fact That ASLB Decision in proceeding,LBP-92-32,adequately Addressed Issues Raised in Petitions.W/Certificate of Svc ML20126D5461992-12-23023 December 1992 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Limited Petition for Review of City of Cleveland,Oh of 921118 Decision of Aslb.* Commission Should Deny City of Cleveland Petition.W/Certificate of Svc ML20126F6501992-12-23023 December 1992 Answer of City of Cleveland,Oh,Intervenor,In Opposition to Petitions for Review of 921118 Decision of Aslb.* Petitioners Petitions for Review Should Be Denied. Certificate of Svc Encl ML20126D4761992-12-22022 December 1992 Alabama Electric Cooperative Answer to Applicants Petitions for Review.* Applicants 921208 Petitions for Review Should Be Denied.W/Certificate of Svc ML20126A5871992-12-0808 December 1992 Petition for Review.* Requests That NRC Review ASLB 921118 decision,LBP-92-32.Board Erroneously Interpreted Section 105(c) of AEA by Ignoring Fundamental Underplanning of Statute.Certificate of Svc Encl ML20126A5751992-12-0808 December 1992 Petition for Review.* Requests That NRC Review LBP-92-32, 921118 Board Decision in Proceeding.Board Erroneously Interpreted Section 105(c) of AEA by Ignoring Fundamental Underpinning of Statute.W/Certificate of Svc ML20126A7651992-11-18018 November 1992 Limited Petition for Review of City of Cleveland,Oh of 921118 Decision of Aslb.* City of Cleveland Petition for Review Should Be Granted.W/Certificate of Svc ML20116M4671992-11-16016 November 1992 Licensee Response to Lake County Commissioners 10CFR2.206 Petition.* Petition Should Be Denied.Certificate of Svc Encl ML20116E7941992-09-29029 September 1992 Petition for Action to Relieve Undue Risk Posed by Const of Low Level Radwaste at Perry Plant.* Requests Public Hearing Be Held Prior to Const of Storage Site & Const Should Be Suspended Until NRC or Util Produces EIS on Risks ML20101N5131992-07-0808 July 1992 City of Cleveland Opposition to Applicant Request That Licensing Board Disregard Certain Arguments of City of Cleveland Counsel in Oral Argument.Certificate of Svc & Svc List Encl ML20101N6401992-07-0707 July 1992 Reply by American Municipal Power-Ohio,Inc to Applicant Request That Board Disregard Factual Issues.* Applicant Requests Board Disregard Irrelevant Assertions by All Parties.W/Certificate of Svc ML20101K2101992-06-29029 June 1992 Applicants Request That Licensing Board Disregard Factual Issues Discussed During Oral Argument.* Foregoing Issues Represent Factual Issues Which Board Should Disregard in Disposition of Phase One of Case.W/Certificate of Svc ML20098D5181992-05-26026 May 1992 Reply of City of Cleveland,Oh to Arguments of Applicants & NRC Staff W/Respect to Issues of Law of Case,Res Judicata, Collateral Estoppel & Laches.* W/Certificate of Svc & Svc List ML20096A6281992-05-0707 May 1992 Applicants Reply to Opposition cross-motions for Summary Disposition & Responses to Applicants Motion for Summary Disposition.* Applicants Conclude NRC Has No Authority to Retain Antitrust Licensing Conditions.W/Certificate of Svc ML20090F4261992-03-31031 March 1992 Motion for Summary Disposition of Intervenor,City of Cleveland,Oh & Answer in Opposition to Applicant Motion for Summary Disposition.* City of Cleveland,Oh & Applicant Motions Should Be Denied.W/Certificate of Svc ML20094K3791992-03-18018 March 1992 Applicants Motion to Amend Summary Disposition Schedule.* Applicants Request That Motion to Amend Summary Disposition Schedule Be Granted.W/Certificate of Svc ML20094J2891992-03-0909 March 1992 Response of DOJ to Applicant Motion for Summary Disposition.* Urges ASLB to Resolve Bedrock Legal Issue in Negative & Concludes That Commission Possess Legal Authority to Retain License Conditions.W/Certificate of Svc ML20091N1241992-01-24024 January 1992 Applicants Answer to Cleveland Motion to Amend Schedule for Summary Disposition Motions.* Applicants Have No Objection to Request for Opportunity to Submit Reply.W/Certificate of Svc ML20087E7821992-01-16016 January 1992 Motion to Amend Schedule for Summary Disposition Motions.* Cleveland Requests That Motion Be Granted & 911114 Order Establishing Schedule for Motions for Summary Disposition Be Amended.W/Certificate of Svc & Svc List ML20086U5371992-01-0606 January 1992 Applicants Motion for Summary Disposition.* Requests That Board Grant Applicants Motion for Summary Disposition Due to Lack of NRC Authority to Retain Antitrust License Conditions.W/Certificate of Svc ML20086J4821991-12-31031 December 1991 Reply Brief of City of Cleveland,Oh in Support of Notice of Appeal of Prehearing Conference Order Granting Request for Hearing.* Appeal Should Be Granted,Ref to Board Revoked & Applications Dismissed.W/Certificate of Svc ML20086Q9231991-12-27027 December 1991 Motion of City of Cleveland,Oh for Leave to File Reply & Reply to Applicants Answer to City Motion for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision.W/Certificate of Svc ML20086Q3001991-12-24024 December 1991 Applicant Answer to Motion of City of Cleveland,Oh for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision. * W/Certificate of Svc ML20091H7161991-12-19019 December 1991 Motion of City of Cleveland,Oh for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision.W/Certificate of Svc ML20086N4601991-12-17017 December 1991 Licensees Response to Ohio Citizens for Responsible Energy, Inc & SL Hiatt Amended Petition for Leave to Intervene.* Determines That Intervenor Failed to Demonstrate Interest in Proceeding.W/Certificate of Svc & Svc List ML20086J4741991-12-0909 December 1991 Motion of City of Cleveland,Oh for Leave to File Reply Brief.* Motion to File Reply Should Be Granted for Listed Reasons ML20086G4001991-11-26026 November 1991 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 ML20079Q0301991-11-0606 November 1991 Oec Motion to Compel NRC Staff to Respond to Interrogatories.* Util Moves Board to Compel NRC to Respond Completely,Explicitly & Properly to Licensee Interrogatories.W/Certificate of Svc ML20083B5841991-09-0606 September 1991 Licensee Answer to Oh Citizens for Responsible Energy,Inc & SL Hiatt Petition for Leave to Intervene & Request for Hearing.* Ocre Has Shown No Interest in Proceeding.W/Notice of Appearance,Certificate of Svc & Svc List ML20076D1611991-07-18018 July 1991 Answer of Ohio Edison Co to Petition of American Municipal Power-Ohio,Inc (AMP-Ohio) for Leave to Intervene.* Util Does Not Object to Admission of AMP-Ohio as Intervenor on Basis of Status as Beneficiary.W/Certificate of Svc ML20076D0481991-07-18018 July 1991 Answer of Cleveland Electric & Toledo Edison to Petition of American Municipal Power-Ohio for Leave to Intervene.* Utils Believe That 910703 Petition Should Be Granted.W/Certificate of Svc ML20081K8961991-06-20020 June 1991 Alabama Electric Cooperative Reply to Oppositions Filed to Petition to Intervene.* Informs of Util Intention to Assure Vindication of Proper Legal Principle.W/Certificate of Svc ML20079D2391991-06-17017 June 1991 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Opposition of City of Cleveland,Ohio,To Hearing W/Respect to Denial of Applications to Suspend Antitrust License Conditions & Petition to Intervene.* ML20079D2211991-06-17017 June 1991 Answer of Ohio Edison Co to Opposition of City of Cleveland, Oh to Hearing W/Respect to Denial of Applications to Suspend Antitrust License Conditions & Petition to Intervene in Event Hearing Requested & Granted.W/Certificate of Svc ML20079D2161991-06-14014 June 1991 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Petition of Alabama Electric Cooperative,Inc for Leave to Intervene.* AEC Has Not Met Burden of Satisfying Regulatory & Common Law Requirements.W/Certificate of Svc 1998-11-09
[Table view] |
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
1 9606050060 960529 )/2 6' )
PDR ADOCK 05000440 0 PDR
i l
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
l
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
i 1
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.
8
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.
9
l 1
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
l t
10
a
. 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 /
b<
S usan L . Hiatt