ML20203C895
| ML20203C895 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 04/18/1986 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| References | |
| CON-#286-832 CLI-86-07, CLI-86-7, OL, NUDOCS 8604210259 | |
| Download: ML20203C895 (9) | |
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UNITED STATES OF AMERICA DCCXETED NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine
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Frederick M. Bernthal Lando W. Zech, Jr.
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In the Matter of
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CLEVELAND ELECTRIC ILLUMINATING
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Docket Nos. 50-440 OL COMPANY, ET AL.
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50-441 OL (Perry Nuclear Power Plant, Units 1 and 2)
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MEMORANDUM AND ORDER CLI 07 I.
For the reasons set forth below, the Comission has determined that the Atomic Safety and Licensing Appeal Board's actions in this proceeding warrant intervention in order to clarify a misinterpretation of Comission case law and precedent. The Commission's inherent supervisory authority over the conduct of NRC adjudications gives it the authority to intervene.
On January 31, 1986, an earthquake occurred in northeastern Ohio. The earthquake measured 5.0 in magnitude and its epicenter was located approximately ten miles south of the Perry nuclear facility. Three days later, on February 3, intervenor Ohio Citizens for Responsible Energy (OCRE) filed a motion to reopen the record in the Perry operating license proceeding for the purpose of admitting a new contention challenging the adequacy of the 8604210259 860418
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P i facility's seismic design. The applicants and staff opposed the motion to reopen primarily on the ground that the earthquake and its effects did not present a significant safety question. The Appeal Board, unable to decide whether the issue raised by the n'otion to reopen had true safety significance, decided to hold an exploratory hearing to aid it in its determination of safety significance.
See Appeal Board Orders of March 20 and April 8, 1986 (unpublished).
II.
The standards for reopening a closed record require consideration of three factors:
(1) whether the motion to reopen is timely; (2) whether the infomation raises a significant safety (or environmental) concern; and (3) the motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially. See, e.g., Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 311 (1985). The Board, in its analysis of the motion to reopen, found that the motion to reopen was timely.
Order of March 26, 1986 at p. 4, n.7.
However, the Board was not convinced that the motion had safety significance.
If the Board, after considering the parties' submissions, was not convinced that the motion raised a matter of safety significance, it should have denied the motion to reopen.
In Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3), CLI-86-1, we addressed the issue of whether an Appeal Board has the authority to seek additional information before ruling on a motion to reopen.
Our Waterford decision holds that a Board is to decide the motion to reopen on the infomation before it and has no authority to engage in discovery in
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I order to supplement the pleadings before it. Simply put, the burden of satisfying reopening requirements is on the movant and Boards must base their decisions on what is before them. That the movant did not meet this burden in the view of the Appeal Board is evident from the Board's order of April 8, 1986 in which it states that it needs the exploratory hearing to aid its "detemination respecting whether the new issue raised by the OCRE motion has true safety significance."
(Emphasis added.) Accordingly, the Board had no authority to pursue this matter as it did.I See also, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), CLI-85-7, 21 NRC 1104, 1106(1985).
Additionally, we note that OCRE in its reply to the staff and applicant responses in opposition to its motion to reopen conceded "that the high frequency exceedances of the SSE design acceleration recorded in the January 31, 1986 earthquake do not have engineering significance." OCRE Reply to Staff and Applicant Responses to OCRE's Motion to Reopen the Record and to Submit a New Contention at p. 1.
OCRE also concedes that the earthquake caused little or no damage to the plant.
_I d. Assuming arguendo, that the Appeal Board was correct in stating that the burden of going forward shifted to the applicant and staff when OCRE called " attention to the apparent fact that the earthquake exceeded the design basis SSE in at least INor did the Appeal Board here have the authority sua sponte to seek to obtain information relevant to the motion to reopen. Boards have the authority to examine issues not placed in controversy by the parties only where specific facts are brought to their attention indicating that there is a serious safety, environmental, or common defense and security matter.
See 10 C.F.R. 5 2.760a; Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 NRC 614, 615 (1981). The Appeal Board made no such finding here.
i one respect," these concessions appear to negate any prima facie case of safety significance. See Order of March 20, 1986 at p. 4, n.7 and p. 6.
The earthquake has already received a great deal of attention. The NRC staff tas already completed one study (SSER No. 9) and some additional confirmatory work must be completed before the granting of a full power license. Matters which need to be addressed before licensing can be handled by the Comission and its staff outside of the adjudicatory context.
See Cincinnati Gas and Electric Company, et al. (William H. Zimer Nuclear Power Station, Unit No. 1), CLI-81-20, 16 NRC 109 (1982).
III.
The Appeal Board's orders setting up the exploratory hearings are VACATED. The petition to reopen is DENIED. The staff, however, should be prepared to discuss the matters raised by the Board in its March 20, 1986 Order in its presentation before the Comission on the full power license.
The applicant and the intervenor will also be afforded an opportunity to make presentations to the Comission on these matters.
Chairman Palladino has additional remarks which are attached.
Comissioner Asselstine disapproved this order; his dissenting views are attachec.
It is so ORDERED.
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[,"SecretaryofI SAMUEL tM HILK o.
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Dated at Washington, D.C.
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SEPARATE VIEWS OF CHAIRMAN PALLADINO WHILE I SUPPORT THE WATERFORD DOCTRINE REFERRED TO IN THE COMMISSION'S ORDER, I WOULD HAVE SOUGHT CL'ARIFICATION OF THE APPEAL BOARD'S REASONS BEHIND ITS MARCH 20, 1986 ORDER.
NOTWITHSTANDING THE ABOVE, I FIND COMPELLING THE FACT THAT INTERVENORS HAVE ABANDONED THE THEORY OF THEIR FEBRUARY 3, 1986 MOTION TO REOPEN THE RECORD AS DESCRIBED IN THE COMMISSION'S ORDER.
THUS, I SUPPORT THE COMMISSION'S ORDER DEf!YING THE MOTION T0-REOPEN.
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i DISSENTING VIEWS OF COMMISSIONER ASSELSTINE I do not agree with the Commission's action today.
The Commission should not have interposed itself into the Appeal Board proceeding but should simply have permitted the Appeal Board to proceed as it outlined in its orders. At a minimum, the Commission should not have summarily vacated the Board's orders and summarily denied the motion to reopen without first hearing from the parties, i
The action of the Appeal Board in this case is an eminently sensible solution to a difficult problem. The Board was told that, in at least one respect, the 1986 Ohio earthquake exceeded the SSE for the Perry plant. 3/
The applicants and NRC staff asserted that, even though the earthquake did exceed the SSE, the event did not present a significant safety issue for operation of Perry. The Appeal Board felt, however, that it needed more information before it could make a final determination of safety signifi-l cance. The Board stated:
i Even with regard to so seemingly simple an issue as safety signifi-cance, it is difficult to nake an informed judgment on the basis of l
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In its order (p.3), the Commission seems to attach some significance to the fact that OCRE has conceded in its response to staff and applicant filings "that the high frequency exceedances of the SSE design acceleration recorded in -the January 31, 1986 earthquake do not have engineering significance" and that the earthquake caused little or no damage to the plant. This is largely irrelevant to the question at issue here. The intervenor has not abandoned its claim that the earthquake raises questions about the adequacy of the seismic design t
basis for the plant and of compliance with NRC regulations. These are the very subjects on which the Appeal Board wished to obtain additional information from the applicants and staff.
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L preliminary written materials where, as here, the combined and compli-cated fields of geology, seismology and engineering mechanics come into play.
In this connection, our examination of the documentary submissions of the applicants and staff have given rise to several questions that, in our view, require further exploration before we can decide with any degree of confidence whether a reopening of the record is justified.
i Cleveland Electric Illuminating Company, et. al. (Perry Nuclear Power Plant, Units 1 and 2), Docket Nos. 50-440 and741, Appeal Board Order dated March 20, 1986, p. 6.
i Given these circumstances, the Appeal Board decided to hold a one-day " mini hearing" to obtain answers to its questions in order to make a decision on whether the Ohio earthquake presents a significant safety issue. Thus, the Board established a procedure by which it could ensure an adequate examination of the issue of safety significance without all of the trappings of a full-blown hearing.
Rather than reining in the Appeal
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Board, the Comission should be encouraging the Board in its efforts to consider all the evidence carefully and to have a more complete record before deciding upon a motion to reopen.
Unfortunately, the Comission feels compelled to apply its decision in Waterford to this case. Louisiana Power and Light Company (Waterford Steam
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Electric Station, Unit 3), CLI-86-1, January 30, 1986.
I disagreed with that decision as well, and for good reason. That decision denies Board members the opportunity to obtain answers to questions raised as a result of the parties' filings on a motion to reopen. The Waterford decision, when combined with the Comission's standards for reopening and the Comission's rules on raising issues sua sponte, ties the hands of the Boards. By setting such high standards in all of these areas, the Commis-
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sion has made it extremely difficult for an intervenor to raise new issues.
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In addition, the Comission has now made it virtually impossible for the Boards to obtain additional information, which is not in the parties' initial filings, in order to satisfy themselves that an issue does or does not present a significant safety issue. Thus, in the future, whether a Board can consider a safety issue in some detail before ruling on a motion to reopen will depend upon how adept a particular intervenor is in meeting these stringent pleading requirements on the first round of pleadings.
If the intervenor does not make an open and shut case in his initial pleading, he will not get a second chance.
Further, the Board will not be permitted to ask for additional information no matter how many questions the Board has, unless the Board grants the motion to reopen. This could have either of two results, neither of which is particularly beneficial.
Either the Boards will read the Waterford and Perry orders strictly and will not grant a motion to reopen without a seemingly irrefutable pleading from the intervenor, in which case fewer issues will be resolved with input from the public. Or, rather than treat the issue superficially, the Boards will be more inclined to grant a motion to reopen if they have unanswered questions and thus begin a full-blown hearing. The acticn of the Appeal Board here seems to be a sensible compromise to avoid either extreme.
The Comission's devotion to technical pleading requirements with regard to motions to reopen is certainly understandable because proceedings must come to an end sometime. Such devotion to the Comission's rules and precedents might even be admirable, if it were applied uniformly to all parties.
However, when I contrast this case with the Comission's recent orders in the Braidwood proceeding, it is apparent that the Comission does not
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(See, Commonwealth Edison Company (Braidwood Station, Units 1 and 2), Docket Nos.
50-456 and 457 Commission Orders dated December 5,1985 and March 20, 1986. In that case the Commission went out of its way to give the applicant a second chance to make its case on a motion on which it clearly had not met its burden as movant.
Aside from all of the above, however, the Commission's decision today suffers from an additional infirmity. At a minimum, the Commission should in this case have heard from the parties before deciding whether to issue this order. The Commission should not have interposed itself into the Perry proceeding, without being asked by any party, and then summarily disposed of both the Appeal Board " mini-hearing" and the intervenor's motion to reopen. Allowing the parties an opportunity to speak for a few minutes on this issue at the Commission meeting, during which the Commission usually decides whether to issue a full power license, is hardly an adequate substitute for a close look at this issue by the Appeal Board.
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