ML20112H229
| ML20112H229 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 03/29/1985 |
| From: | Reggie Sullivan CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#285-320 OL, NUDOCS 8504020179 | |
| Download: ML20112H229 (17) | |
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March 29, $k(TJD UNITED STATES OF AMERICA NO '41 NUCLEAR REGULATORY COMMISSION cp WC..
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD ,:,?' .Q@GE!?
l; i; roy In the Matter of )
THE CLEVELAND ELECTRIC Docket Nos. 50-4400 -
ILLUMINATING COMPANY, ET AL. ) 50-441 0
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(Perry Nuclear Power Plant, )
Units 1 and 2) )
APPLICANTS' ANSWER TO OHIO CITIZENS FOR RESPONSIBLE ENERGY'S MOTION FOR DIRECTED CERTIFICATION In its confirmatory Memorandum and Order, issued March 13, 1985, the Atomic Safety and Licensing Board denied Ohio Citizens for Responsible Energy's ("OCRE") February 11, 1985
" Motion for the Appointment of Board Witness" on Issue No. 16 (diesel generator reliability).1j The Licensing Board stated if OCRE's " Motion for the Appointment of Board Witness" was opposed by both Applicants (see " Applicants' Answer to Ohio Citizens for Responsible Energy's Motion for the Appointment of Board Witness", filed February 26, 1985) (" Applicants' Answer"), and the NRC staff (see "NRC Staff Response in Opposi-tion to OCRE Motion for Appointment of Board Witness on Issue 16", filed March 4, 1985). OCRE, in turn, sought leave to reply to Applicants' Answer. See "OCRE Motion for Leave to Re-spond to Applicants' Answer to OCRE's Motion for the Appoint-(Continued Next Page) 8504020179 e hDR ADOCK 05 PDR 40
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t that written explanation of its ruling would follow at a subse-quent date. Memorandum and Order at 2.
By motion dated March 15, 1985 (served March 16, 1985)
(" Motion"), OCRE requested that the Atomic Safety and Licensing Appeal Board review the denial of its " Motion for the Appoint-ment of Board Witness" by exercising the discretionary directed certification authority conferred by 10 C.F.R. $ 2.718(i).
OCRE argues that such extraordinary action is necessary because the Board's decision denies it due process. Motion at 2. OCRE also requests the Appeal Board to direct the Licensing Board "to provide a written explanation of its decision"2/ and "to continue that part of the proceeding pertaining to Issue No. 16 ,
pending the Appeal Board's disposition of the ... motion.3/
Id.
(Continued) ment of Board Witness", filed March 4, 1985. Applicants op-posed this motion. See " Applicants' Answer to OCRE Motion for Leave to Respond to Applicants' Answer to OCRE's Motion for the Appointment of Board Witness", filed March 11, 1985.
2/ The Licensing Board has already provided a written expla-nation of its decision. See Memorandum and Order (Motion for Appointment of Board Witnesses), dated March 26, 1985.
3/ The hearing on Issue No. 16, as well as other contentions, is scheduled to begin on April 9, 1985. Direct testimony on these issues was filed by Applicants and the NRC staff on March 25, 1985, pursuant to the Licensing Board's Memorandum and Order (Cenfirmation of Schedule Dates), dated February 11, 1985.
Applicants oppose OCRE's Motion and request that it be de-nied because: (1) the established standards for directed certi-fication have not been met; (2) to the extent OCRE moves the Appeal Board to stay the hearing on Issue No. 16, OCRE has failed to meet the traditional stay requirements, now codified in 10 C.F.R. $ 2.788(e); and (3) because, in any event, the Li-censing Board correctly denied OCRE's request to appoint OCRE's designated witness as its own.
I. THE STANDARDS FOR DIRECTED CERTIFICATION HAVE NOT BEEN MET The Appeal Board has often stressed that:
(r]eview of an interlocutory licensing board ruling via directed certification is discre-tionary and granted infrequently. A party invoking review by this means must demon-strate that the board's action "either (a) threatens the party adversely affected by it with immediate and serious irreparable harm which could not be alleviated by a later ap-peal, or (2) affects the basic structure of the proceeding in a pervasive or unusual man-ner."
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105, 1110 (1982) (quoting Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 536 (1980). See also Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-762, 19 NRC 565, 568 (1984) and ALAB-737, 18 NRC O
168, 171 (1983); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), ALAB-742, 18 NRC 380, 383 (1983); Perry, ALAB-736, 18 NRC 165, 166 n.1 (1983); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Sta-tion, Unit 1), ALAB-635, 13 NRC 309 (1981).4/
OCRE relies on both of the Marble Hill criteria in its mo-tion and adds a third criterion 5/ cited in earlier decisions, stating that " relief ... is required in order to avoid injury to the public interest or the avoidance of unusual delay or ex-pense." Puerto Rico Water Resources Authority (North Coast Nu-clear Plant, Unit 1), ALAB-361, 4 MRC 625 (1976). See also Toledo Edison Co. (Davis-Besse Nuclear Power Station),
ALAB-300, 2 NRC 752, 759 (1975).
4/ The origin of the two-prong test is Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405,. 5 NRC 1190, 1192 (1977).
5/ This criterion is reflected in 10 C.F.R. 5 2.730(f) con-cerning interlocutory referral to the Commission by a presiding officer.
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E A. The Licensing Board's Refusal to-Appoint OCRE's Designee as a Board Witness Does Not Threaten OCRE With "Immedi-ate and Serious Irreparable Harm Which Could Not be Alleviated by a Later Appeal".
OCRE argues that it will not be able to " meaningfully par-ticipate" at the hearing on Issue No. 16 and, therefore, will be deprived of due process unless the Board appoints the indi-vidual designated by OCRE as the Board's'own witness. Motion at 3-5. OCRE asserts that this alleged denial of due process
. constitutes " irreparable harm that cannot be alleviated by a later appeal", thereby satisfying one of the criteria for a grant of directed certification. Id. at 3.
OCRE's due process argument is, essentially, that it lacks the financial ability to present a complete case on the diesel generator issue and that denial of such financial assistance (via the Board appointing OCRE's witness as its own) deprives it of due process. OCRE proffered this same argument in its
, original motion for the appointment of a board witness. As fully discussed in Applicants' Answer to that motion,6/ due process does not require the NRC to pay for OCRE's witness.
OCRE has not been summarily denied assistance which heretofore had been provided to it (or to any other intervenor), nor can OCRE assert that it was ever led to believe that the Licensing
_ 6/ See Applicants' Answer at 10-14.
Board would pay for its witness.7/ The fact that Applicants and the NRC staff may present expert witnesses at the hearing does not a fortiori require that OCRE be provided with an ex-pert witness. OCRE has the same avenues open to it to develop its case on this issue as it has always had, including cross-examination of the NRC staff's and Applicants' witnesses at the hearing.
The NRC expounded upon the procedural safeguards which exist in licensing proceedings when it determined that it would not provide financial assistance to intervenors. See Nuclear Regulatory Commission (Financial Assistance to Participants in Commission Proceedings), CLI-76-23, 4 NRC 494, 502-506 (1976).
'The expertise of the NRC staff and the technical members of the boards were cited as greatly contributing to the proper resolu-tion of safety-related issues. The Commission explicitly rec-ognized that some intervenors might not have the financial re-sources to hire independent experts and would thus be restricted to cross-examination to make their affirmative cases. Id. at 505. Weighed against the serious impropriety of calling an intervenor's witness as a board witness and the con-siderable financial burden this would impose, failure to 7/ No licensing board hus, to our knowledge, ever paid the fees of a witness proposed by an intervenor. There is, there-fore, no reason for the Appeal Board to intercede on OCRE's be-half.
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. appoint OCRE's designee as a Board witness is neither unfair nor violative of due process.
L OCRE does not cite any new legal authority which would change this conclusion. Once again, the cases which it relies on are inapposite to this proceeding; not one of the decisions l'
involves an agency's failure to provide a witness at an admini-
. strative hearing. See Motion at 3-5. Ohio Bell Telephone'Co.
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- v. Public Utilities Commission of Ohio, 301 U.3. 292 (1937),
. addressed a public utilities commission's inappropriate use of l
judicial notice. Zotos-International, Inc. v. Kennedy, 460 F. Supp. 268 (D.D.C. 1978) involved an agency's denial of trade I secret status for a product without first affording the manu- ,
! facturer an opportunity to respond to the factors underlying
,. the agency decision. Walter Holm & Co. v. Harden, 449 F.2d i 1009 (D.C. Cir. 1971) determined that a group of importers should have been afforded an opportunity to-make an oral pre-sentation to an agency prior to its issuance of certain regula-tions recommended by domestic producers. In Heublein, Inc. v.
FTC, 539 F. Supp. 123 (D. Conn. 1982), the court determined that a corporation was " irreparably harmed" where the FTC im-properly denied it the immediate opportunity to acquire a tar-get company's stock. Fitzgerald v. Hampton, 467 F.2d 755 (D.C.
Cir. 1972) held that due process required that a hearing on the reinstatement of a former government employee be open to the t
public and press. Finally, Amos Treat & Co. v. SEC, 306 F.2d 260, (D.C. Cir. 1962) concerned an individual's improper par-ticipation as a decisionmaker in an SEC proceeding in which he had formerly played an investigatorial/ prosecutorial role.
The Licensing Board's decision not to hire OCRE's designee as its expert witness is, in any event, a decision which could be remedied by a later appeal. If the hearing on Issue No. 16 goes forward without the participation of this individual and, on appeal, it was determined that the Licensing Board's deci-sion not to hire him was erroneous, the hearing on diesel gen-erator reliability could always be reopened to hear the addi-tional witness.
Because the Board's decision not to hire OCRE's witness does not violate due process and, in any event, is not an "ir-reparable" decision, OCRE has failed to establish that it is threatened with "immediate and serious irreparable harm which could not be alleviated by a later appeal," the first of the Marble Hill criteria for directed certification.
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B. The Licensing Board's Decision Not to Appoint a Board Witness Does Not " Affect the Basic Structure of the Proceeding in a Pervasive or Unusual Manner".
OCRE argues that it satisfies the second criteria for a grant of directed certification because the Licensing Board's decision demonstrates "an unwillingness of the Board to perform its job [thereby constituting] a pervasive and unusual altera-tion of the basic structure of the proceeding." Motion at 5-6.
OCRE again implies that it is necessary for the Board to ap-point OCRE's witness as its own to develop a complete record in the proceeding. Id. It frames this argument in the context of the NRC's mandate to protect public health und safety.g/ Ic.
-The Licensing Board's obligation to develop a complete record in this proceeding does not require that the Board call as its own a witness identified by an intervenor.9/ The NRC has already determined that funding of interveno'rs is not nec-essary to ensure that the Commission fulfills its mandate to protect public health and safety. See Nuclear Regulatory Com-mission, supra, at 502. As the Appeal Board has noted, "We certainly do not suggest that a licensing board should ignore deficiencies ... or play no role in the development of a g/ In this manner it asserts that the third "public interest ,
criterion" is satisfied.
9/ See Applicants' Answer at 14-16.
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o complete record. The protection of the public health and safe-ty is a paramount concern." South Carolina Electric & Gas Co.
(Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1156 (1981) (emphasis in original). However, it is only when other means of developing the evidentiary record fail and it is "'beyond question that [the] board simply cannot other-wise reach an informed decision on the issue'" that it may re-sort to its own outside experts. Id. at 1156-1157. OCRE has not cited any new legal authority which would indicate other-wise.
The Summer decisions,10/ which set forth the standards for calling a board witness, dictate the manner in which the record is to be developed and a board's articulated concerns relating to public health and safety are to be addressed.11/ The board must first "[give) the parties to the proceeding every fair op-portunity to clarify or supplement their previous testimony."
Summer, ALAB-710, supra, at 27-28. It is only where "the staff is unable or unwilling to clarify its testimony on a signifi-cant safety issue and the other evidence of record is similarly unresponsive to a licensing board's articulated concerns,
[that}'the board is free ... to seek outside testimony in an 10/ Summer, ALAB-663, supra, and ALAB-710, 17 NRC 25 (1983).
11/ See Applicants' Answer at 2-5.
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effort to resolve the matter." Summer, ALAB-663, supra, at i
1157.
OCRE has failed to meet the standards established by the Summer decisions. First, it has not shown that the Board is unable to obtain whatever information the Board (not OCRE) needs to resolve the issue without calling OCRE's witness.
Second, OCRE has not shown that the staff's (or Applicants')
witnesses would be unwilling or unable to respond to the Board's concerns.12/ Third, OCRE has not shown that the Li-censing Board could not reach an informed decision without calling OCRE's designated witness. The Licensing Board's deni-al of OCRE's motion was, therefore, correct.
In applying the second criteria for directed certifica-tion, it must be recognized that almost all licensing board or-ders have some effect upon the future course of a proceeding.
l However, they cannot all affect the " basic structure in a per-vasive or unusual manner." Otherwise, there would be nothing left of the general proscription against interlocutory appeals.
- 12/ The NRC staff has expended substantial resources in studying the TDI diesel generators, including utilization of Pacific Northwest Laboratory as a consultant to perform a tech-l nical evaluation of the Owners Group Program and its analyses.
The NRC staff is, therefore, certainly in a position to provide
, the Licensing Board with supplemental information on any con-cern the Board should raise. Applicants are similarly in a po-sition to clarify or supplement information provided to the l Board should this be deemed necessary.
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i See Palo Verde, supra, at 383-384. Even "the fact that legal error may have occurred [a fact not present here) does not of itself justify interlocutory appellate review in the teeth of the longstanding articulated Commission policy generally dis-favoring such review." Seabrook, ALAB-734, 18 NRC 11, 15 (1983).
While the Licensing Board's refusal to hire OCRE's witness may affect the case which OCRE presents, it is manifest that the Licensing Board's decision does not represent a departure from-established Commission practice. Indeed, the contrary de-cision would be totally at odds with established Commission practice. See Summer, supra. In any event, whether a licens- .
ing board will need such assistance is a matter of licensing board' discretion and is certainly not susceptible of resolution at this juncture in the proceedings.13/ See also Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-382, 5 NRC 603, 607-608 (1977) (denying intervenors' motion for directed certi-fication of order denying NRC funds to pay, inter alia, the fees and expenses of an expert witness and concluding that the decision as to whether a " genuine need" exists for a board to call its own witness rests " ultimately in the sound discretion 13/ The Licensing Board has not foreclosed all opportunity for it to call its own independent witness should it find that it
" simply cannot otherwise reach an informed decision on the issue involved." Summer, ALAB-663, supta, at 1146.
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4 of the tribunal alone") (emphasis added).14/ To provide OCRE with the relief it seeks, the Appeal Board would have to deter-mine even before the hearing has begun that the criteria for appointment of a board witness, established in the Summer deci-sions, are satisfied.15/ This is an impossibility.
II. OCRE HAS FAILED TO SATISFY THE REQUIREMENTS FOR A STAY OF THE PROCEEDINGS ON ISSUE NO. 16 OCRE asks the Appeal Board to stay the evidentiary hear-ings slated to begin on April 9th until the Appeal Board has resolved OCRE's claims. Because OCRE has failed to meet the traditional stay requirements, now codified at 10 C.F.R.
$ 2.788(e), this request should be denied. 10 C.F.R. 5 2.788(e) states:
In determining whether to grant or deny an application for a stay, the ... Appeal Board ... will consider:
14/ As discussed in Applicants' Answer at 5-7, Midland reiter-ates NRC policy against funding intervenors. See also Metropolitan Edison Co., (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1247 (1984) (licensing board was precluded by law from appointing an independent expert to assist intervenor with its case); Rochester Gas & Electric Corp., (R.E. Ginna Nuclear Plant, Unit 1), LBP-83-73, 18 NRC 1231, 1239 (1983) ("The Commission lacks the legal authority to provide financial assistance to intervenors.")
15/ The procedure which must be followed before a licensing board can take the " extraordinary action" of calling its own expert witness was set forth in unmistakable terms in the Summer decisions. See Applicants' Answer at 2-5.
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(1) Whether the mcvna; party has made a-strong showing that it . iii<ly to prevail on the merits; (2) Whether the part- 7411 be irrepar-ably injured unless a stay t .jeanted; (3) Whether the granting of a stay would harm other parties, and (4) Where the public interest lies.
As discussed herein, as well as in Applicants' Answer, OCRE cannot prevail on the merits of its argument. Neither has OCRE demonstrated that it would suffer irreparable injury if the hearing goes forward, because the Board's order is neither unfair nor violative of due process and, in any event, could always he remedied by a later appeal.16/ See discussion, supra, at 5-8. On the other hand, Applicants would be injured by any delay in these proceedings, given the currently pro-jected fuel load date.17/ Finally, the public interest must 16/ As the movant, OCRE (and not Applicants) must demonstrate that it will suffer " irreparable injury" if the stay is not granted. See Motion at 6. In this case, OCRE stands in the shoes of the applicant /movant in Midland, ALAB-395, 5 NRC 772 (1977) to whom the Appeal Board addressed its observation that litigation expense does not constitute " irreparable injury".
Id. at 779.
17/ OCRE's citation to Power Reactor Development Co. v. Inter-national Union of Electrical, Radio and Machine Workers, 367 U.S. 396 (1961), Motion at 6, does not support the claim that financial investment cannot be considered in reviewing an ap-plication for a stay of proceedings. Similarly irrelevant is OCRE's reliance on Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 AEC 358 (1973), Mo-tion at 6. That case was concerned with the review of quality assurance and safety matters by a licensing board, not the pro-posed use of a board witness.
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lie in providing for a prompt hearing and decision on the die-sel generator issue which has been a contention in this pro-ceeding since December 23, 1983. See Nuclear Regulatory Com-mission, " Statement of Policy on Conduct of Licensing Proceedings," CLI-81-8, 13 NRC 452 (1981) (encouraging licens-ing boards to expedite the hearing process). Thus, there is no basis whatsoever for entertaining a motion for a stay of the proceedings on Issue No. 16.
III. CONCLUSION Because neither the standards for directed certification nor a stay of proceedings have been met, and because there is no merit to OCRE's contention that the Licensing Board's order was in error, Applicants respectfully request that the Appeal Board deny OCRE's Motion for Directed Certification.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: ubw uf Ci do Jay E. Silberg, P.C.
Rose Ann Sullivan Attorneys for Applicants 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 DATED: March 29, 1985 j
-o i i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL. ) 50-441
)
(Perry Nuclear Power Plant, )
Units 1 and 2) )
CERTIFICATE OF SERVICE This is to certify that copies of'the foregoing APPLICANTS' ANSWER TO OHIO CITIZENS FOR RESPONSIBLE ENERGY'S MOTION FOR DIRECTED CERTIFICATION were served by deposit in the United States Mail, first class, postage prepaid, this 29th day of March, 1985, to all persons listed on the attached Service List.
ambww W Rose Ann Sullivan
d I
i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, _E_T _A_L . ) 50-441
)
(Perry Nuclear Power Plant, )
Units 1 and 2) )
SERVICE LIST James P. Gleason, Chairman Atomic Safety and Licensing 513 Gilmoure Drive Appeal Board Panel Silver Spring, Maryland 20901 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Jerry R. Kline_ Docketing and Service Section Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear. Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Glenn O. Bright Colleen P. Woodhead, Esquire Atomic Safety and Licensing Board Office of the Executive Legal U.S. Nuclear Regulatory Commission Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Christine N. Kohl, Chairman Atomic Safety and Licensing '
Terry Lodge, Esquire Appeal Board Suite 105 U.S. Nuclear Regulatory Commission 618 N. Michigan Street Washington, D.C. 20555 Toledo, Ohio 43624 Dr. W. Reed Johnson: Donald T. Ezzone, Esquire Atomic Safety and Licensing, Assistant Prosecuting Attorney Appeal Board Lake County Administration U.S. Nuclear Regulatory Cormission Center Washington, D.C. 20555 105 Center Street Painesville, Ohio 44077 l Gary J. Edles, Esquire Atomic Safety and Licensing Atomic Safety and Licensing o Appeal Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 John G. Cardinal, Esquire Ms. Sue Hiatt Prosecuting Attorney 8275 Munson Avenue Ashtabula County Courthouse Mentor, Ohio 44060 Jefferson, Ohio 44047 i
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