ML20212N190
| ML20212N190 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 08/26/1986 |
| From: | Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#386-492 CLI-86-07, CLI-86-7, OL, NUDOCS 8608280123 | |
| Download: ML20212N190 (6) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DGCKETED USNRC BEFORE THE COMMISSION In the Motter or
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16 NE 27 MI M6
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THE CLEVELAND ELECTRIC
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Docket Nos. 5 -440 OL h[dQ[{y' ILLUMINATING CO. ET AL.
)
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BRANCH (Perry Nuclear oower Plant,
)
Units 1 and 2)
)
MOTION FOR A CONTINUANCE I.
INTRODUCTION The Comnission hos scheduled a meeting for September 5, 1996 at which it will consider issuonce of a full power license for Unit 1 of the Perry Nuclear Power Plant.
See 51 FR 29043 (August 13, 1986), Sunshine Act Meetings
(" Friday, September 5, 10:00 AM, Discussion /Possible Vote on Full Power Operating License for Perry-1').
At this meeting the Commission will also consider the implications of the January 31, 1986s earthquake cer tered about 10 miles from the Perry facility. See CLI-86-07, slip op. at 4.
Because issuance of the full power license will deprive Intervenor Ohio Citizens for Responsible Energy ('OCRE')
of its rights and status os on intervenor, thereby prejudicing its case on Judicial review of CLI-86-07, OCRE hereby moves thor the Commission continue its scheauled meeting and refrain from issuing a full power license for Perry Unit i pending the outcome of Ohio Citizens for Responsible Energy, Inc.
v.
- NRC, Case No. 86-3355, before the Sixth Circuit Court of Appeals.
As this motion seeks a stay of a proposed Commission action,,
the four facters of 10 CFR 2.788(e) are addressed below and are f
found to weigh in OCRE's rovor.
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4 II. GROUNDS FOR THE CONTINUANCE A.
Likelihood or Prevailing on Appeal As thoroughly discussed in the Petitioner's Brier, riled August 19, 1986 with the Court, the NRC in CLI-86-07 clearly violated the Atomic Energy Act and the Administrative Procedure Act.
Surely such blatant disregard for statutory requirements os exhibited by the Commission's Order will not withstond Judicial scrutiny.
In CLI-86-07 the Commission violated Section 189(o) of the Atomic Energy Act by summarily denying OCRE its right to o hearing guaranteed by that'section.
That the Commission persists in skirting the requirements cr Section 189(o), despite Judicial admonitiot in Union or concerned Scientists v.
NRC
("UC5'), 735 F.2d 1437 (D.C. Cir. 1984) and Son Luis Obispo Mothers for Peace et al v.
NRC, 751 F.2d 1287 (D.C. Cir. 1984),
does not bode well for the rate or CLI-86-07.
The Commission *S action was furthermore on orbitrary and cooriciou% obuse of discretion.
CLI-86-07 is the culmination or a series of obuses never before combined in o Commission action.
Not content to 500 sponte interrere with the orderly progress of the seismic issue before the APPeol Board, the proper tribunal for its consideration, the Commission, without benefit or advance public notice or its 5 PM April 17 orrirmation meeting (as required by the Sunshine Act) and without giving any party to the Ferry proceeding on opportunity to.be heard, ruled
_3-that the Appeal Board did not have the powers clearly accorded to it by the NRC's own regulations (e.g.,
In a porticularly peculiar inversion of logic, the Commission rule'~d that the Appeal Boore did not have the authority to conduct on eMPlorotory ' mini-bearing
- to aid its determination on a motion to reopen the record, o procedure the 6ppeal Board had used previously without Commission interference.
See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Pouer Pione, Units 1 and 2),
ALAB-756, 18 NRC 1340 (1983).
It is beyond comprehension why the Commission suddenly. finds odicus the very some procedure it previously accepted.
Surely the Court will look upon CLI-86-07 With disfovor.
B.
Irreparable Horm Under Section 189(o) of the Atomic Energy Act, OCRE is entitled to on adjudicatory hearing on issues material to the ultimate licensing decision.
UC5 at 1442.
The i s's u e of the adequacy of the Perry seismic design in light of the January 31 90rthquake is, by the Commission's regulations (and its own admission in CLI-86-07), material to the ultimore licensing decision.
However, once the Commission issues a full power license for Perry (and necessarily disposes of'the seismic tssue) the ' ultimate licensing decision" is mode.
The proceeding is termincked, and with it.0CRE's rights under the Atomic Energy Act.
Thus, o full power licensing decision will render moot CCRE's case before the Court, as OCRE will no longer possess tne
. c right to o,heoring upon which it hos stoked a claim in i,t s Petitioner's Brief.
A continuance to preserve OCRE's rights and status is therefore necessitored, C.
Harm to other Parties The only party whicN could possibly be harmed by o continuance is Applicants.
However. Applicants have not demonstrated that they are in fact ready to receive o full power license.
Events such as ths infamous charcoal fire in the offgas system (and others identified in the LERs) demonstrate that Applicants are plagued by continual human error opparently rooted in a persistent inability to follow procedures.
Applicante therefore might benefit frcm more experience at low power during which they con rectify this deficiency.
The series of poor performance at Fermi-2 and River Bend are perhoPs indicative of premature assuonce of full power licenses, to the detriment of everyone.
One of the lessons cf the ihree Mile Island occident and the June 1995 Davis-Besse incident is that, regardless of the offsite consequences, the Utility is certainly a casualty.
More time spent now correcting weaknesses could prevent costly shutdowns later, D.
Where the Public Interest Lies There con be no doubt that the putlic interest demands o full and fair consideration of the earthquake issue with opportunity for meaningful pa'rticipation by OCRE.
' Congress vested in the public, as well as the NRC staff, o role in 4
z
-.m
.m..
_3 assuring sore operation or nuclear power plants."
UCS at 1447.
However, the scheduled Commission meeting, bearing'Itttle resemblance to on adjudicatory hearing held' pursuant to the Administrative Procedure Act, con in no.,Way rulfil the Congressional mandate.
The public interest would clearly be Served by a continuance to preserve OCRE's right to o hearing under the Atomic Energy Act.
The cotostrophe at Chernobyl also demonstrates the Weaknesses or a system which stirles public scrutiny.
The victims or such a disaster -ore not limited to those Who would have exercised hearing rights had they been available, but include the population at large.
The Commission's monsate to soreguard the health and sorety of the public dictates that a decision to license Perry, obsent a full investigation into the sorety threat posed by observed local Seismicity. Would be tantamount to on abrogotion or statutory responsibility.
The overriding need to pr*0tect the Public requires that rull power licensing for Perry be withheld.
III. CONCLUSION The four roctors of 10 CFR 2.788(e) rovar o continuance or the Commission's scheduled meeting pending the outcome or GCRE's cose on judicial review of CLI-86-07.
OCRE prays that the Commission is so moved.
Respectfully submittec, I
b Susan L.
Hiott
) A.-(gb; M,26 /Tig E
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OCRE Representative 8275 Munson Rd.
i Mentor, OH 44060 t
(216) 255-3158 x -. -
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CERTIFICATE OF-SERVICE This is to certify that copies of the foregoing were served by depos Mail, first class, postage prepaid, this
..8 k g in the U.S-_b.h.:.-,1986 doY of to those on the Service List below.
Susan L. Hiott MG &l EXPi2ess rnML SERVICE LIST HR. GLENN O. BRIGHT f6 Mr. Londo W.
- Zech, Jr.,
Chairman ATOHIC SAFETY & LICENSING BOARD 0,. 5, Nuclear Regulatory Commission U.S.
NUCLEAR REGULATORY COHH.
WASHINGTON, D.C. 20555 1717 H Street, N.W.
. Washington, D.C.
20555 56 N r. James K.'Asselstine, Commissioner ALAN 5.
ROSENTHAL, CHRIRHAN A OH 5AFETY & LICENSING APPEAL-U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
U.S.
NUCLEAR REGULATORY COHH.
UASHINGTON, D.C.
20555 Washington, D.C.
20555 y$ Mr. Thomcs M.
Roberts, Commissioner DR.
W.
REED JOHN 5ON U.S.
Nuclear Regulatory Commission ATOHIC SAFETY & LICENSING APPEAL 1717 H Street, N.W*
BOARD washington, D.C.
20555 U.S.
NUCLEAR REGULATORY CONH.
WASHINGTON, D.C.
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%g Mr. Freeerick H.
Bernthol, Commi,ssioner, U.S.
Nuclear Regulotory Ccmmission HR. h0UARD R.
WILBER 1717 H 5treet' N*U*
ATOHIC 5AFETY & LICENSING APPEAL' Washington, D.C.
20555 BOARD U.S.
NUCLEAR REGULATORY COHN.
URSHINGTON, D.C.
20555 Sp Mr. Kenneth H.
Corr, Comrais s io ne r U.S. Nuclear Regulatory Commissicn 1717 H Street, N.W.
uoshington, D.C.
20555 36 Samuel J.
Chilk, Secretory of the Commission U.5, Nuclear Regulatory commsssion 1717 H Street, N.W.
ggcdAY SILBERG, E50.
Washington, D.C.
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& TROUBRID GE 1800 H ST. NU JAME5 P.
GLEASON, CHAIRMAN WASHINGTON, D.C.
20035 ATOHIC 5AFETY & LICENSING BOARD 513 GILHOURE DR.
Mh COLLEEN D.
WOODHEAD, ESO SILUER SPRING, MD 20901 y[ I E GY THE EXECUTIUE LEGAL DI U.S.
NUCLEAR REGULATORY CONH.
DR. JERRY R.
KLINE CASHINGTON, D.C.
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20555 M DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY U.S.
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