ML20212K432
| ML20212K432 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 04/18/1986 |
| From: | Davis P NRC COMMISSION (OCM) |
| To: | Bates A NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20212K371 | List: |
| References | |
| FOIA-86-297 NUDOCS 8608220053 | |
| Download: ML20212K432 (5) | |
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UNITED STATES
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,'g NUCLEAR REGULATORY COMMISSION yy g
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WA5HINGTON, D.C. 20655 v
- gn4ST orrics or Tus commussionen April 18, 1986 MEMORANDUf! TO:
Andy Bates, Secy FROM:
Pat Davis, OCM PD
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SUBJECT:
JKA VIEWS ON PERRY ORDER Attached are Comissioner Asselstine's dissenting views on the Perry order (Secy 86-109). Please see that they are attached to the order when it is issued.
Bill' Reamer cc:
Mack Cutchin Steve Schinki Bill Parler OGC OPE
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U60E220053 860808 TT 97 PDR l
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j DISSENTING VIEWS OF COMMISSIONER ASSELSTINE I do not agree with the Comission's action today. The Comission should not have interposed itself into the Appeal Board proceeding but should -
simply have pennitted the Appeal Board to proceed as it outlined in its -
orders. At a minimum, the Comission shouTd not'have sumarily vacated the Board's orders and sumarily denied the motion to reopen without first hearing from the parties.
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.1/
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-cance. The Board stated:
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Even with regard to so seemingly simple an issue as safety signifi-cance, it is difficult to make an informed judgment on the basis of 1/
In its order (p.3), the Comission seems to attach some significance to the fact that OCRE has conceded in its response to staff and
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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 basis for the plant and of comoliance with NRC regulations. These are the very subjects on which the Appeal Board wished to obtain additional information from the applicants cnd staff.
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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.
Cleveland Electric Illuminating Company, et. al. (Perry Nuclear Power 4
Plant, Units 1 and 2), Docket Nos. 50-440 andT41, Appeal Board Order
-dated March 20, 1986, p. 6.
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 significa6ce without all of the trappings of a full-blown hearing. Rather than reining in the Appeal Board, the Comission should be encouraging the Board in its efforts to consider all the evidence carefully and to have a more complete record
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before deciding upon a motion to reopen.
..Y Unfortunately, the Comission feels compelled to apply its decision in
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Waterford to this case. Louisiana Power and Light Company (Waterford Steam t
Electric Station, Unit 3), CLI-86-1, January 30, 1986.
I disagreed with
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that decisien 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 an'd 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 Comis-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 bpen and shut case in his initial pleading, l
he will not get a second chance. Further, the Board will not be permitted to ask for additional infomation 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 g,
and thus begin a full-blown hearing. The action of the Appeal Board here E
seems to be a sensible compromise to avoid either extreme.
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l The Comission's devotion to technical. pleading requirements with regard to 4
motions to reopen is certainly understandable because proceedings must come i
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 Commission's recent orders in the Braidwood proceeding, it is apparent that the Comission does not e---w-
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y require the same level of performance from all parties.
(See, Commonwealth Edison Company (Braidwood Station, Units 1 and 2), Docket Nos.
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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 dispo, sed'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, h'
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