ML20211G497

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

ML20211G497
Person / Time
Site:	Perry
Issue date:	10/30/1986
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	OHIO, STATE OF
References
CON-#486-1328 CLI-86-20, OL, NUDOCS 8611040044
Download: ML20211G497 (5)

Text

a BW UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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~86 0CT 30 P4 :22 Comissioners:

Lando W. Zech, Jr. , Chairman f[0C$I~

Thomas M. Roberts James K. Asselstine Frederick M. Bernthal Kenneth M. Carr SERVED OCT 3 0 1986

) D-SERVED OCT 311986 In the Matter of ,

CLEVELAND ELECTRIC ILLUMINATING ) Docket Nos. 50-440 OL COMPANY, et _al.

_ ) 50-441 OL

)

(Perry Nuclear Power Plant, )

Units No. I and 2) )

)

MEMORANDUM AND ORDER (CLI-86-20)

On September 5,1986, the State of Ohio filed with the Comission a petition to intervene as a non-party interested. State. See 10 CFR 2.715(c). Ohio stated that it wished to participate in consideration of issues such as the adequacy of the offsite evacuation plans for Perry.

Applicants and the NRC staff opposed Ohio's petition. In its reply to applicants' opposition, Ohio stated that, although its petition came at a late point in the Perry licensing proceedings, it believed it could aid the Comission in its effectiveness review.

1 The Comission has allowed Ohio to participate in its informal review of uncontested issues and the State's concerns are being considered by the Comission as part of.its review of uncontested goiB8tiBuBSW 15cL

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issues. The Commission agrees with Ohio that such participation enhances State, NRC, and licensee communication and cooperation.

Moreover, in keeping both with the spirit of the State's request, and with the spirit of Federal-State cooperation which underlies section 274(1) of the Atomic Energy Act, we anticipate that the State would continue informally to discuss its concerns with the NRC staff.

However, to the extent that Ohio is requesting to intervene under

~10 CFR 2.715(c) in the formal adjudicatory proceeding, that eleventh hour request, filed on the eve of a Commission. licensing decision, is -

denied. Clearly, a State has no right to participate in administrative appeals when it has not participated in the underlying hearing. See, e.g., Pacific Gas & Electric Co. (Diablo Canyon Nuclea'r. Power Plant, Units 1 and 2), ALAB-583, 11 NRC 447 (1980). In this case, the extreme untimeliness of Ohio's intervention request alone supports our denial of its request. Even were the Commission to allow late intervention as a 4 matter of discretion, a party or State seeking to enter a proceeding must take the proceeding as it finds it. See, e.g., Pacific Gas &

Electric Co. (Diablo Canyon Nuclear Power Plant), ALAB-600,12 NRC 3, 8 (1980). Since the record in this proceeding was closed when the State filed its intervention motion, the State could participate in the adjudicatory proceeding "to introduce evidence (and) interrogate witnesses," as the State requests, only if it could meet the stringent standards for reopening the record and filing late-filed contentions.

See, e.g., Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1and2),ALAB-728,17NRC777,801-802(1983). The State of Ohio has presented nothing to demonstrate that it might be able to

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meet those standards. Accordingly, the State's petition for intervention and participation in the adjudicatory proceeding must fail.

Comissioner Asselstine's separate views are attached.

It is so ORDERED.

O*" "'4e F R THE COMMISSION

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fos SAMUEL MHILK

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Secretary of the Comission -

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b Dated at Washington, D.C.

4 this k day of October, 1986.

4 SEPARATE VIEWS OF COMMISSIONER ASSELSTINE I do not disagree with the Commission's decision to deny the request of the State of Ohio to intervene in the formal adjudicatory proceeding for the Perry Plant. I agree that, as it relates to reopening the record, the State's request falls short.

However, the State's filings appear to indicate that Ohio is primarily interested in advising the Commission in its immediate effectiveness review of the Perry license rather than in litigating issues. The State seems really to be seeking an informal advisory status. The Commission is willing to permit limited informal participation by the State. For example, the Commission heard from representatives of Governor Celeste

several months ago and is willing to allow the staff to work with Ohio to resolve the State's emergency planning concerns. The Commission is not willing, however, to provide the State ~with a continuing opportunity to l advise the Commission on its immediate effectiveness review.

As the Commission notes, section 27A of the Atomic Energy Act evinces a i

congressional intent that there be federal-state cooperation and that states be accorded a somewhat " preferred" status in our licensing f

proceedings. In keeping with the spirit of section 274, I believe that we should provide the State of Ohio with a continuing opportunity'to advise the Comnission informally on the Perry proceeding. At a minimum, the

! Commission should hear from the Governor's representatives once again l

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_2-L i before voting on the Perry license. It has been several months since we

! last heard from the State, and it would be useful- to hear about the status of Ohio's efforts on emergency planning.

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