ML20205F289

Response Recommending Denial of Sunflower Alliance,Inc 860808 Notice of Appeal from Aslab 860725 Decision ALAB-841 Re Emergency Planning.Certificate of Svc Encl

ML20205F289
Person / Time
Site:	Perry
Issue date:	08/15/1986
From:	Woodhead C NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#386-338 ALAB-841, OL, NUDOCS 8608190142
Download: ML20205F289 (8)

Text

l ShC UNITED STATES OF AMERICA -

IC NUCLEAR REGULATORY 00Cxdiy,;

COMMISSIQN

?p;;,: .

r nr 7 BEFORE THE COMMISSION In the Matter of )

)

CLEVELAND ELECTRIC ) Docket Nos. 50-440 OL ILLUMINATING COMPANY, ET AL. ) 50-441. 0L

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFF RESPONSE TO THE NOTICE OF APPEAL FROM.

TIIE DECISION OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD FILED BY SUNFLOWER ALLIANCE, INC.

CoIIeen P. Woodhead Counsel for NRC Staff August 15, 1986

?

8608190142 860815 PDR C

ADOCK 05000440 FDR 350'7 .- .

f G ,

. 70 ,

$ f$ -

- UNITED STATES OF AMERICA 00hfg7lf 0r ec NUCLEAR REGULATORY COMMISSION g h.] y

)

BEFORE THE COMMISSION

' 1 In the Matter of )

)

CLEVELAND ELECTRIC ) Docket Nos. 50-440 OL ILLUMINATINO COMPANY, ET AL. ) 50-441. OL

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFF RESPONSE TO THE NOTICE OF APPEAL FROM THE DECISION OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD FILED BY SUNFLOWER ALLIANCE, INC.

~

l t

t Colleen P. Woodhead Counsel for NRC Staff August 15, 1986

.i.

#%Qeo UNITED STATES OF AMERICA IS Pj,70 '

NUCLEAR REGULATORY COMMISSION cr r

sec BEFORE THE COMMISSION 00c'[,[7lljhjgy,k"_

Bi '

E.

'?/.

. In the Matter of )

)

CLEVELAND ELECTRIC ) Docket Nos. 50-440 OL ILLUMINATING COMPANY, ET AL. ) 50-441 OL

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFF RESPONSE TO THE NOTICE OF APPEAL FROM THE DECISION OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD FILED BY SUNFLOWER ALLIANCE, INC.

I. INTRODUCTION On August 8, 1986, Sunflower Alliance, Inc. (Sunflower) submitted a Notice of Appeal from the Decision of the Atomic Safety and Licensing l

Appeal Board seeking reversal of ALAB-841 issued on July 25, 1986, in this proceeding. For the reasons set out below, the NRC Staff respect-fully recommends that the Commission deny the appeal.

II. DISCUSSION On July 25, 1986, the Appeal Board issued a decision in this pro-ceeding affirming the Licensing Board's concluding partial initial decision (CPID) (22 NRC 514), as well as certain other prior decisions. Cleveland Electric Illuminating Company, et al. (Perry Nuclear Power Plant, Units 1 l

and 2), ALAB-841, 24 NRC (1986). The appellants below were intervenors, Sunflower and Ohio Citizens for Responsible Energy l

l l

l 4 (OCRE). k Sunflower appealed that part of the CPID which dealt with emergency planning, the issue sponsored by Sunflower at the hearing.

However, the Appeal Board found the Sunflower appeal to be fatally defective in that Sunflower's brief simply restated the contentions litigat-ed at hearing and provided no explanation as to why the Licensing Board was wrong in rejecting the contentions. ALAB-841, sp oy . at 2-3.

Consequently, because Sunflower provided no foundation for its general claim of error, the Appeal Board summarily rejected Sunflower's appeal.

ALAB-841, sp op, at 2, 4.

Sunflower, by filing a short paragraph giving " notice of appeal,"

continues its practice of failing to conform to the Commission's Rules of Practice. - Contrary to the requirements of 10 CFR I 2.786(b)(2), the rule of practice applicable to petitions for Commission review of Appeal Board decisions, Sunflower has not even attempted to include in its ap-pellate pleading a concise summary of the decision of which review is sought , a statement, including record citation, setting forth where the

-1/ OCRE, on August 8, 1986, filed a motion for reconsideration of ALAB-841 before the Appeal Board, i

-2/ Sunflower apparently believes that it has a right to appeal decisions by the Appeal Board and that to obtain Commission review of an Appeal Board decision, the provisions for appeal of an initial deci-sion set out in 10 CFR I 2.762 apply. Section 2.762 does not apply to Commission review of Appeal Board decisions; rather it applies to Appeal Board review of initial decisions by Licensing Boards. See 10 CFR 4 2.785, which delegates authority to the Appeal Board to perform the review described in I 2.762. Commission review of Ap-peal Board decisions is governed by I 2.786, which is clearly enti-tied " Review of decisions and actions of an Atomic Safety and Licensing Appeal Board." This rule of practice requires petitions for Commission review to be filed within 15 days after service of an Appeal Board decision. 10 CFR I 2.786(b)(1).

4 matters of fact or law raised in the petition for review were previously raised before the Appeal Board (or, alternatively, an explanation of why issues were not raised below), a statement as to why the decision or ac-tion is erroneous, or a concise statement of Sunflower's view as to why Commission review should be exercised. Thus, Sunflower's brief notice of appeal fails to meet any of the requirements of 10 CFR 5 2.786(b)(2). 3_/

The Commission has complete discretion to review Appeal Board deci-sions, both on its own motion, and upon petitions from parties. In this instance , however, the usual standards for Commission review, as set forth in 10 C.F.R. I 2.786, are not satisfied. No exceptional legal, fac-tual or policy question, as described in 10 CFR 5 2.786(a), is apparent which would warrant Commission review on its own motion. Furthermore, nothing presented by Sunflower provides a basis, pursuant to the stan-dards of 10 CFR I 2.786(b)(4), for Commission review of ALAB-841. In these circumstances, Sunflower's notice of appeal should be denied, i

-3/ The Appeal Board noted that Sunflower is represented by counsel who has been warned in the past of the consequences of failure to provide any explanation as to why its claim of error was correct.

! ALAB-841, slip op. at 3. Nevertheless, Sunflower has submitted a totally inadequate pleading, which contains neither a specific claim of error nor reference to the decision below and does not even suggest a reason for Commission review of ALAB-841.

4-i III. CONCLUSION For the reasons stated, the Commission should deny the Notice of Appeal submitted by Sunflower.

Respectfully submitted, Colleen P. Woodhead Counsel for NRC Staff Dated at Bethesda, . Maryland this 15th day of August,1986 e

e

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

CLEVELAND ELECTRIC ) Docket No. 50-440 OL ILLUMINATING COMPANY, ET AL. ) 50-441 OL

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO THE NOTICE OF APPEAL FROM THE DECISION OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD FILED BY SUNFLOWER ALLIANCE INC." in the above captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 15th day of August,1986:

i

• Samuel J. Chilk

• William C. Parler

Secretary of the Commission General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

• Dr. Jerry R. Kline

• James P. Gleason, Chairman Administrative Judge Administrative Judge Atomic Safety and Licensing Board 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, MD 20901 Washington, DC 20555

• Mr. Glenn O. Bright Donald T. Ezzone, Esq.

Administrative Judge Assistant Prosecuting Attorney Atomic Safety and Licensing Board 105 Main Street

- U.S. Nuclear Regulatory Commission Lake County Administration Center Washington, DC 20555 Painesville, OH 44077 Jay Silberg, Esq. Susan Hiatt Shaw, Pittman, Potts and Trowbridge 8275 Munson Road 1800 M Street, NW Mentor, OH 44060 Washington, DC 20036

• Atomic Safety and Licensing Board Terry J. Lodge, Esq.

U.S. Nuclear Regulatory Commission 618 N. Michigan Street, Suite 105 l Washington, DC 20555 Toledo, OH 43624 l

{

i

1 l

John G. Cardinal, Esq. Janine Migden, Esq.

Ohio Office of Consumers Counsel Prosecuting Attorney Ashbabula County Courthouse 137 E. State Street Jefferson, OH 44047 Columbus, OH 43215 i

• Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission

- Washington, DC 20555

• Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Colleen P. Woodhead Counsel for NRC Staff i

l

• l

_ _ _ .