Memorandum & Order Dismissing Intervenor,Ohio Citizens for Responsible Energy,Motion to Reopen Record to Submit New Contention Re Applicant Request for Exemption from One Testing Requirement in 10CFR50,App J.Served on 850903ML20134N555 |
Person / Time |
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Site: |
Perry ![FirstEnergy icon.png](/w/images/a/ad/FirstEnergy_icon.png) |
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Issue date: |
08/30/1985 |
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From: |
Bright G, Gleason J, Kline J Atomic Safety and Licensing Board Panel |
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To: |
OHIO CITIZENS FOR RESPONSIBLE ENERGY |
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References |
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CON-#385-418, CON-385-418 81-457-04-OL, 81-457-4-OL, LBP-85-33, OL, NUDOCS 8509050190 |
Download: ML20134N555 (7) |
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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20212J1581999-09-30030 September 1999 Order Approving Transfer of License & Conforming Agreement. 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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. 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[Table view] Category:ORDERS
MONTHYEARML20212J1581999-09-30030 September 1999 Order Approving Transfer of License & Conforming Agreement. Orders That License Transfer Approved,Subj to Listed Conditions 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 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 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 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 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 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 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 ML20126A5461992-12-10010 December 1992 Order.* Requests That Answers to Petition for Review Be Filed No Later than 921223.W/Certificate of Svc.Served on 921210 ML20062C2561990-10-18018 October 1990 Memorandum & Order (Cancelling Scheduled Hearing).* W/ Certificate of Svc.Served on 901019.Reserved on 901025 ML20059M6521990-09-27027 September 1990 Memorandum & Order (Dispensing W/Prefiled Testimony).* Advises That Hearing Dates Will Remain as Specified in ASLB 900829 Order & Requirement for Prefiled Testimony Will Be Dispensed.W/Certificate of Svc.Served on 900927 ML20059M6741990-09-27027 September 1990 Corrected Memorandum & Order (Dispensing W/Prefiled Testimony).* Hearing Dates Will Remain as Specified in Order of 900829 & Requirement for Prefiled Testimony Will Be Dispensed.Served on 901001 ML20059C4481990-08-29029 August 1990 Memorandum & Order.* Advises That Evidentiary Hearing Scheduled to Commence on 901016,postponed Until 901030 to Accommodate NRC Witness & in Absence of Objection. Certificate of Svc Encl.Served on 900830 ML20056B2071990-08-0707 August 1990 Memorandum & Order.* Grants Motion for Mod of Hearing Schedule Adopted in 900723 Memorandum & Order.New Schedule as Indicated.Served on 900807.W/Certificate of Svc ML20055J1391990-07-23023 July 1990 Memorandum & Order (Denying Staff & Licensee Motions for Reconsideration).* Licensee & NRC Motions for Reconsideration Denied & Ocre Admitted as Party. W/Certificate of Svc.Served on 900723.Reserved on 900726 ML20151T4731988-04-26026 April 1988 Order Dismissing Proceeding.* Licensee Withdrew Petition Re Proposed Amend to Tech Specs Re MSIV Leakage Control Sys. Proceedings Terminated by Board Upon Participant Agreement W/Course of Action.Served on 880426 ML20150C5611988-03-16016 March 1988 Order.* Vacates 880301 Order Setting Schedule for Filing of Contentions & Responses & for Holding Prehearing Conference. Participants Felt Schedule Should Be Vacated Pending Determination of Future Proceeding Course.Served on 880317 ML20147D4771988-03-0101 March 1988 Memorandum & Order.* Order Granting Prehearing Conference on 880421 to Permit Participants to Meet & Confer in Attempt to Settle Disputed Issues,To Frame Agreed Contentions & Narrow Issues.Served on 880302 ML20211J3881986-11-0707 November 1986 Memorandum & Order CLI-86-22,directing Issuance of Full Power OL for Unit 1.Separate Views of Commissioner Asselstine Attached.Served on 861107 ML20211G4971986-10-30030 October 1986 Memorandum & Order CLI-86-20 Denying State of Oh Request to Intervene Under 10CFR2.715(c) Informal Adjudicatory Proceeding,Due to Not Meeting Stds for Late Filings & for Reopening Record.Served on 861030.Re-served on 861031 ML20203M9631986-09-0404 September 1986 Memorandum & Order Denying Ocre 860827 Request to Postpone 860905 Meeting to Consider Issuance of Full Power License. Served on 860904 ML20212P7081986-09-0202 September 1986 Order Extending Time Until 860929 for Commission to Act to Review ALAB-841 Which Is Same Date to Review ALAB-844. Served on 860902 ML20214K7691986-08-18018 August 1986 Memorandum & Order Denying Petition for Reconsideration of Portions of ALAB-841.Petition Renews Arguments Previously Advanced in Ocre Appellate Brief & Found W/O Merit.Served on 860819 ML20203C8951986-04-18018 April 1986 Memorandum & Order CLI-86-07 Denying Ocre 860203 Motion to Reopen Record in Facility OL Proceeding to Admit New Contention Re Adequacy of Facility Seismic Design.Served on 860418 ML20205M7461986-04-14014 April 1986 Order Modifying 860408 Memorandum & Order to Permit Testimony of P Talwani on or Before 860505.Served on 860414 ML20155A9581986-04-0808 April 1986 Memorandum & Order Denying Ocre 860203 Motion to Reopen Record in OL Proceeding in Washington,Dc to Litigate Adequacy of Seismic Design.Hearings Generally Conducted in Vicinity of Facility.Served on 860409 ML20155A6101986-04-0808 April 1986 Order Extending Time Until 860530 for Commission to Act to Review Director'S Decision DD-86-4.Served on 860408 ML20154R7461986-03-27027 March 1986 Order Granting Ocre Motion for Leave to Reply to Util & NRC Responses Re Ocre Motion to Reopen Record in OL Proceeding. Prehearing Conference Scheduled for 860403,not 860408.Served on 860322 ML20154Q3721986-03-20020 March 1986 Order for Parties to Notify Aslab of Names & Telephone Numbers of Persons Participating in Prehearing Telcon on 860408 Re Ocre 860203 Motion to Reopen Record to Admit New Contention.Certificate of Svc Encl.Served on 860320 ML20154K2791986-03-0707 March 1986 Order That Applicant May Move for Leave to Resubmit Unacceptable Figures Re Seismic Design in 860225 Response to Motion of Intervenor Ocre & Provide Corrected Figures to ASLBP by 860324.Served on 860307 ML20137X4481986-03-0505 March 1986 Order Granting Ocre Motion to Strike a Notafrancesco 860128 Affidavit on Ground That Affidavit Contains Unsolicited, extra-record Opinion Testimony Re Hydrogen Control Rule. Served on 860305 ML20141N1981986-02-27027 February 1986 Memorandum & Order Denying & Dismissing,In Part,Motion to Reopen Record to Submit New Contentions.Dissenting Opinion of WR Johnson Encl.Served on 860228 ML20136J4591986-01-0909 January 1986 Order Advising That Supplemental Briefs,Addressing Listed Questions Re Consolidated Appeal of Board 850220 Partial Initial Decision,Must Be Filed by 860127.Served on 860110 ML20136E6331986-01-0303 January 1986 Memorandum & Order Informing That Pending Appeals of Sunflower Alliance & Ocre Will Be Decided Based on Briefs Supplemented by Memoranda Re Listed Questions on Hydrogen Control.Served on 860106 ML20138D1961985-12-10010 December 1985 Order Vacating 851120 Order Scheduling 851219 Oral Argument on Pending Appeals.Decision on Whether to Reschedule Argument or Treat Appeals as Submitted on Briefs to Be Made. Served on 851211 ML20137H1071985-11-27027 November 1985 Order Partially Granting Applicant 851121 Motion to Increase Page Limit for Appeal Brief.Brief Not More than 100 Pages May Be Filed.Served on 851127 ML20136D4431985-11-20020 November 1985 Order Directing NRC to File & Serve Brief in Response to Briefs of Intervenors Ohio Citizens for Responsible Energy & Sunflower Alliance by 851206.Served on 851120 ML20136D7671985-11-20020 November 1985 Order Requesting Name of Person Presenting Argument at 851219 Hearing Re Intervenors Appeal from ASLB 850903 Concluding Partial Initial Decision (LBP-85-35) by 851206. Served on 851120 ML20138H3101985-10-24024 October 1985 Order Denying Ohio Citizens for Responsible Energy 850925 Application for Stay Pendente Lite of ASLB 850903 Partial Initial Decision (LBP-85-35) on Emergency Planning,Hydrogen Control & Diesel Generators.Served on 851025 ML20133E8141985-10-0404 October 1985 Memorandum & Order Clarifying ASLB 850903 Concluding Partial Initial Decision & Finding 55 Re Emergency Kits.Kits Should Be Made Available at Each Reception Area Prior to Issuance of Low Power License.Served on 851007 ML20135H8571985-09-23023 September 1985 Order Allowing Ocre to Resubmit Motion for Stay Pendente Lite of Effectiveness of Inter alia,850903 Decision,In Legible Form No Later than 850927.Served on 850923 ML20134N5271985-09-0303 September 1985 Concluding Partial Initial Decision LBP-85-35 on Emergency Planning Hydrogen Control & Diesel Generator Contentions & Authorizing NRR to Issue OLs W/Listed Conditions.Served on 850904 ML20134N5551985-08-30030 August 1985 Memorandum & Order Dismissing Intervenor,Ohio Citizens for Responsible Energy,Motion to Reopen Record to Submit New Contention Re Applicant Request for Exemption from One Testing Requirement in 10CFR50,App J.Served on 850903 ML20134H3831985-08-23023 August 1985 Memorandum & Order Denying Intervenor Ohio Citizens for Responsible Energy Motion for Leave to Respond to Applicant Reply to Findings of Fact & Conclusions of Law Submitted by Other Parties.Served on 850826 ML20129A2391985-07-11011 July 1985 Errata Correcting Transcript of 850409-12 & 0430-0503 Hearings Re Emergency Planning Contention.Served on 850712 ML20128G6201985-05-28028 May 1985 Memorandum & Order Denying Ocre 850430 Motion to Reopen Hearing Record on Issue 16 Re Reliability of Diesel Generators.Served on 850529 ML20054M7681982-07-12012 July 1982 Memorandum & Order Admitting New Contentions on Polymer Degradation from Radiation Exposure,Psychological Stress & Des Improper Consideration of Local Economic Benefits ML20054H7511982-06-22022 June 1982 Order Extending Time Until 820709 for Commission to Consider Whether to Review ALAB-675 1999-09-30
[Table view] |
Text
o LBP-85-33 o
L)l%
UNITED STATES OF AMERICA Dp*q7jg
\
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
'85 sgp _3 Si:52 Before Administrative Judges: ,7 James P. Gleason, Chairman bokthf,[j..EECy r.,
Dr. Jerry R. Kline sapg f -
Mr. Glenn 0. Bright
) Docket Nos. 50-440-0L In the Matter of ) 50-441-0L 1
CLEVELAND ELECTRIC ILLUMINATING )
COMPANY, et al. ) ASLBP No. 81-457-04 OL
)
(Perry Nuclear Power Plant, )
Units 1 & 2) ) August 30, 1985
)
SERVED SEP 31985 MEMORANDUM AND ORDER (Motion to Reopen Record and Submit New Contention)
The Ohio Citizens for Responsible Energy (0CRE), Intervenor, filed a motion, opposed by the Applicants and Staff, to reopen the record and submit a new contention. The motion is directed at an exemption requested by Applicants from the provisions of 10 CFR Part 50 Appendix J,III.D.2(b)(ii). The essential facts are not in dispute. Applicants seek for their Perry facility a partial but permanent exemption under 10 CFR 50.12(a) from one of the containment leakage testing requirements in Appendix J. The requirements at issue relate to testing for air lock leaks. Applicants' exception, if granted, would allow testing of the air lock seal in lieu of testing the entire air lock in cases where the l air lock has been opened during periods when containment integrity is not required. (This substitute is explicitly permitted by the regulations where the opening occurs when containment integrity is l 8509050190 850830 (DR ADOCM 05000440 ""
fDb
required). See III.D.2(b)(iii). The basis for the exemption requested is that the regulatory test requirement, if applied, would require either a lengthy and costly test method to be pursued, or, alternatively, a major design change, either of which would decrease plant availability and create substantial and unjustifiable operational cost increases. In Applicants' view the exemption does not present an undue risk to the public health and safety, is consistent with the common defense and security, and is in the public interest. A number of nuclear facilities have received the same exemption in the past. See Applicants' Answer at 3 and Staff Response at 8 and attachment.
The Applicants included notice of the planned exception from Appendix J in its initial (July 1984) and subsequent drafts of the Perry plant's technical specifications and supported with an analysis their exemption request to the Commission on April 8, 1985. See Applicants' Answer, Attachments 2, 3, 4 and 5 and OCRE Motion, Exhibit 1.
The Staff, pursuant to 10 CFR 51.35, has prepared an environmental assessment and finding of no significant impact of the requested exemption which suggests, at least, that the request will be approved.
There is an added condition included therein that full pressure testing required by III.D.2(b)(ii) will have to be undertaken whenever maintenance is performed on a containment air lock.
OCRE's stated objections to the Applicants' submittal in part deals with the merits of the exemption requested and in part with the procedure being followed. All parties agree on the Commission's existing standards for reopening the record and for late-filed
contentions even though there is a sharp divergence over their ,
application.
Intervenor's proposed new contention reflects 0CRE's position that Applicants should have filed for an exemption under 10 CFR 2.758 rather than 50.12. However, OCRE also alleges a failure on Applicants' part to meet the tests required under 10 CFR 50.12 as well. This later section of the regulations provides for the Comission to grant such exemptions from the requirements of Part 50 as it determines are authorized by law I and will not endanger life or property and the common defense and security and are otherwise in the public interest.
The Intervenor initially challenges the Comission's legal authority to issue exemptions from its regulations, a thrust which is beyond a licensing board's responsibility to consfder. See 10 CFR 2.758(a); Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 89-90 (1974). The Comission has previously expressed its view on challenges to 10 CFR 50.12. See Carolina Power and Light Co. (Shearon> Harris Nuclear Power Plant, Units 1, 2, 3 and 4), 7 AEC 196 (1974). Intervenor next contends that Applicants' request for an exemption does not meet the standards of 50.12 alleging its primary motive for the request is avoidance of financial hardship, a claim OCRE suggests as beyond the Comission's authority to consider. In our view, the cases cited by 0CRE have no direct applicability to the issue of exemptions involved here.
Continuing, OCRE alleges that the grant of an exemption would increase dangers to the public health and property and as a consequence not be in
the public interest. We need not burden this order with a detailed evaluation of these particular OCRE allegations since if Applicants have validly filed a request under 10 CFR 50.12 then the grant of the requested exemption under its present posture will be a matter for the Commission to decide.
The Commission does have pending a proposed rule designed to clarify the standards that will be applied when it considers requests for exemptions under 50.12. See 50 FR 16506. Although the rule being proposed has no present application here, the Appeal Board has recently pointed out that the discussion in the notice yields useful insight on the application and purpose of the rule in its existing form. See Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-809 (June 17, 1985) (slip op. at 7, n.5). The rule proposes to include " financial or economic hardship" and "any unusual difficulties" as circumstances that could justify an exemption. As the Appeal Board noted, supra, the proposed rulemaking is intended to incorporate certain standards now being applied by the Staff as a matter of practice. The central issue before us, however, is a determination on whether Applicants' request for relief, as OCRE alleges, is required to be filed under 2.758 rather than 50.12 of the Commission's regulations. If the decision here is in the affirmative, we will need to evaluate whether the standards for reopening the record and filing a new contention have been met. If negative, no purpose is served by deciding the merits of that issue in this decision.
Section 2.758 is the basic regulation which insulates the Commission's rules and regulations from attack or challenges in an adjudicatory proceeding. It provides a method for waivers or exceptions to be made in the application of such rules or regulations to a particular subject matter of the proceeding wherein the application of the rule or regulation would not serve the purpose for which it was adopted. A petition for a waiver or exception is permissive and generally should be utilized where the interpretation or the application of a regulation to particular facts is questioned. See Washington Public Power Supply System (WPPSS Nuclear Projects, Nos. 3 and 5),
CLI-77-11, 5 NRC 719, 723 (1977). The waiver petition must be accompanied by an affidavit that identifies the specific aspects of the subject matter of the proceeding as to which application of the rule would not serve the purpose for which the rule or regulation was adopted. If a-licensing board finds a prima facie showing has been made, the waiver petition is then certified to the Commission for its final disposition. Petitions for waivers or exceptions should be granted only in " unusual and compelling circumstances." Northern States Power Co. (Monticello Nuclear Generating Plant,IJnit 1), CLI-72-81, 5 AEC 25, 26 (1972). The Applicants here make no claim that the regulatory testing requirement of III.D.2(b)(ii) does not serve their purpose but rather that compliance would result in costly delays in operation. Further, it is clear that a petition for a waiver or exception under 2.758 represents an optional procedure which may or may not be available in the circumstances of a particular proceeding.
_c_
The Intervenor, citing a Commission ruling in a Shoreham case, argue that absent directions from the Commission in this case, since the Applicants are a party in an adjudicatory proceeding, they must submit their exemption request as a petition under 2.758 to the Licensing Board (emphasis added). See Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), CLI-84-8, 19 NRC 1154 (1984). The Shoreham case, as we see it, however, is not applicable since it involved an exemption request under 50.12 and that exemption was directly related to a contention being litigated in the proceeding. No similar relationship exists in the Perry proceeding. The Board is commanded by 10 CFR 2.760(a) to adjudicate only such matters as are placed in controversy by the parties. It can raise issues on its own initiative which involve serious safety, environmental, or common defense and security matters; however, the exemption Applicants seek here does not raise that matter to a level of such concern here--this is particularly true in view of the number of other facilities which have received identical exemption approvals. We, of course, do not suggest that the Commission, if it desired, could not direct this Board to consider the merits of Applicant's pending 50.12 request. It has done so in the past. See Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-74-9, 7 AEC 197, 198 (1974). Inasmuch as 0CRE forwarded its communication in opposition to the Applicants' exception request to the NRC Project Manager of the Perry facility on May 8, 1985--the substance of which is identical to arguments made in the
r s
present motion--the Commission and Staff have OCRE's views on the issue before it for any evaluation they believe may be required.
The Board concludes that no obligation rests on the Applicants to
! file its exemption request as a petition under 2.758, that the relief it seeks is not available from that section, and that the Intervenor's motion to open up the record to consider a contention in this area flounders for lack of any foundation. We conclude, therefore, its l
motion must be dismissed.
ORDERED THE ATOMIC SAFETY AND LICENSING BOARD
/ e
~M. 5 V- .
nw mes P. Gleason, Chairman ADMINISTRATIVE JUDGE r
GTenn 0. Bright ADMINISTRATIVE JUDGE j
$AAL J6rry R. KJine' '
ADMINISTRATIVE JUDGE Bethesda, Maryland