ML20212P018
| ML20212P018 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 08/26/1986 |
| From: | Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20212P011 | List: |
| References | |
| CLI-86-07, CLI-86-7, FLI-86-7, OL, NUDOCS 8609020141 | |
| Download: ML20212P018 (6) | |
Text
.
a UNITED STATES OF AMERICA HUCLEAR REGULATORY ~COHNISSION BEFORE THE COMMISSION In the Notter or
)
-)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 OL ILLUMINATING CO. ET AL.
)
50-441 OL
)
(Perry Huelear Power Plant,
)
Units 1 ond 2)
)
(10 TION FOR.4 CONTINUANCE I.
INTRODUCTION The Commission hos scheduled o meeting for September 5, 1996 at which it will consider issuonce er o full power license for Unit i or the Perry Nuclear Power Plant.
See 51 FR 29043 (August 13,'1986), Sunshine Act Meetings
(" Friday, Septembsr 5.
10:00 AM. Discussion /Possible Vote on Full Pover Operating License for Perry-1').
At this meeting the Commission will also consider the implications of the January 31. 1986 earthquake centered about 10 miles from the Perry racility. See CLI-86-07, slip op, at 4.
Because issuonce or the' full power li~ cense will
~
deprive Intervenor Ohio Citirans for Responsible Energy ('OCRE')
or its rights and status os on intervenor, thereby prejudicing its case on Judicial review or CLI-86-07. OCRE hereby moves that the Commission continue its scheduled meeting and rerrain from issuing a full power license for Perry Unit i pending the outcome of Ohio Citizens for Responsible Energy, Inc. v.
- NRC, Cose No. 86-3355, before the Sixth Circuit Court of Appeals.
As this motion seeks a stay of a proposed Commission oction, the four roctors of 10 CFR 2.788(e) are addressed below and are r wem u u _,.
f EXHIDIT round to weigh in OCRE's rover.
I B609020141 360828
! _ __ {
j PDR ADOCK 05000440 G
PDR 5=n
II. GROUNDS FOR THE CONTINUANCE A.
Likelihood of Prevoiling on Appeal As thoroughly discussed in the Petitioner's Brier, rtled August 19, 1986 with the Court, the NRC in CLI-86-07 cleor'ly violated the Atomic Energy Act and the Administrative Procedure Act.
'Sureif such blotont disregard for statutory requirements os exhibited by the Commission's Order will not withstand Judicial scrutiny.
In CLI-86-07 the Commission violored Section 189(o) of the Atomic Energy Act by summarily denying OCRE its right to o hearing guoronteed by that section.
That the Commission persists in skirting the requirements or Section 189(o), despite judicial o d e. o n i t i o n 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.
HRC, 751 F.2d 1287 (D.C. Cir. 1984),
does not bode well for the rote of CLI-86-07.
The Commission *s action was furthermore on orbitrary and copricious abuse of discretion.
CLI-86-07 is the culminotion of a series of obuses never before combined in o Commission action.
Hot content to suo sponte interfere with the orderly progrest of the seismic issue before the Appeal Board, the proper tribunal for its consideration, the Commission, without benefit or advance public notice or its 5 PN April 17 orrirmation meeting (as required by the Sunshine Act) and without giving any party to the Perry proceeding on opportunity to be heard, ruled
_3 thoc the ApPeol Board did not have the powers clearly accorded
.i to it by the NRC's own regulations (e.g.,
. I n. o porticularly peculiar inversion of logic, the Commission ruled a
j that the Appeal Board did not have the authority to conduct on eFploratory
- mini-heoring' to aid its determination on.o motion to reopen tFe record, a procedure the Appeal Board had used previously without Commission interference.
See Pocific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, U, nits 1 and 2),
1 ALAB-756, 18 HRC 1340 (1983).
It is beyond comprehension why 4
the Commission suddenly finds odious the very some procedure it previously accepted.
Surely the Court will look upon CLI-86-07 with discovor.
7 B.
Irreparable Horm Under Section 189(c) of the Atomic Energy Act, OCRE is entitled-to on odJudicatory hearing on issues material to the ultimate licensing decision.
UC5 at 1442.
The issue or the adequacy of the Perry seismic design in light of the January 31 4
earthquake is, by the Commission's regulations (and'its own admission in CL1-86-07), material to the ultimate licensing decision.
However, once the Commission issues o full power license for Perry ( a n d' necessarily disposes of the seismic issue) the ' ultimate licensing decision" is made.
The proceeding is terminated, and with it OCRE*s rights under the Atomic Energy Act.
Thus, a full power licensing decision will render moot OCRE's cose before the Court, as OCRE will no longer possess the
,.,-e
right to o, hearing upcn which it has stoked a claim in its Petitioner's Brief.
A continuance to preserve OCRE's rights and status is therefore necessitored.
C. Horm to Other Porties The only party Which could possibly be harmed by o continuance is Applicants.
Howevec. Applicants have noe demonstrated that they are in fact ready to receive o full power license.
Events such as the infamous charcoal fire in the offgos 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.
Applicants therefore might benefit from more experience at low po'wer during which they con rectify this def ciency.
The series of poor performance at Fermi-2 and River Bend are perhaps indicative of premature issuance of full power licenses, to the detriment of everyone.
One of the lessons of the Three Nile Island accident and the June 1985 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 public interest demands o full ond fair consideration of the earthquake issue With opportunity for meaningful porticipation by GCRE.
' Congress vested in the public, os well as the NRC storf, o role in
assuring safe operation of nuclear power plants."
UCS or 1447.
However, the scheduled Commission meeting, bearing little resemblance to on adjudicatory hearing held pursuant to the l
Administrative Procedure Act, con in no way fulfil the l
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 i
weaknesses of a system which stifles public scrutin3.
The victims of sucn a disaster are not limited to those who would have exercised hearing rights had they been available, but I
l include the population at large.
The Commission's mondate to safeguard the health ond sofety of the public dictates that a decision to license Perry, obsent a full investigation into the safety threat posed by observed local seismicity, would be tantamount to on abrogation of stokutory responsibility.
The overriding need to protect the public requires that full power 1scensing for Perry be withheld.
III. CONCLUSION The four roctors of 10 CFR 2.788(e) favor o continuance of the Commission's scheduled meeting pending the. outcome of OCRE*5 cose on judicial review of CLI-86-07.
OCRE prays that the Commission is so moved.
Respectfully submitted, Susan L.
Hiatt g, gk' g/ ggg OCRE Representative 8275 Munson Rd, Hentor, CH 44060 (216) 255-3158
[
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing were ser.ved by depos Hail, first class, postage prepaid, this
._E2Ie_g in the U.S g.or _f_W_fiL__.
1986 ko those on the Service List
__ day below.
-_) ------
'" ~ '- ""**
n nsG -
SERVICE LIST t
9K H r. Londo W.
Zech.
Jr..
Chairman HR. GLENN O.
BRIGHT ATOHIC SAFETY & LICENSING SOAf U.S. Nuclear Regulatory Commission U.S. NUCLEAR REGULATORY COHH.
1717 H Street.
N.W.
WASHINGTON, D.C. 20555 Washington.
D.C.
20555
$6 Hr. James K. Asselstine, Commissioner ALAN 5. ROSENTHAL, CHRIRHAN A
H SAFETY & LICENSING APPi U.S.
Nucleor'Re9ulat'ory Commission 1717 H Street.
N.W.
t U.S.
NUCLEGR REGULATORY COHH.
D.C.
20555 UA5HINGTON, D.C. 20555 JE Hr. Thomas H.
Roberts. Commissioner U.S.
Nuclear Regulatory Commission gR Hb ETY ENSING APPE 1717 H Street.
N.W.
BOARD Washingkon.
D.C.
20555 U.S.
NUCLEAR REGULATORY COHH.
WASHINGTON, D.C.
20555 gg M r. Frederick H.
Bernthal, Commissioner, U.S.
Nuclear Regulatory Commission HR. HOWARD A.
WILBER 1717 H Street.
N*W*
ATOHIC 5AFETY & LICEN5ING APPI Washington.
D.C.
20555 BOARD U.S.
NUCLEAR REGULATORY COHH.
URSHINGTON, D.C. 20555 M6 Hr. Kenneth H.
Carr, Commissioner U.S. Nuclear Re9ulatory Commission 1717 H Street.
N.W.
D.C.
20555
$6 Samuel J.
Chilk. Secretary of the Commission U.S.
Nuclear Regulatory Commission ggc agy:5ILBERG, E50.
1717 H Street.
H.W.
Washington, D.C.
20555 SHAU,: PITTHAN, POTT 5,
& TROUBR]
GE 1800 H ST. HU JAME5 P. GLEASON, CHAIRHAN WASHINGTON, D.C.
20035 ATONIC SAFETY & LICEN5ING BOARD i
513 GILHOURE DR.
SILVER SPRING, ND 20901 COLLEEN P. WOODHEAD, E50 OFFICE OF THE EXECUTIVE LEGAL D RECTOR U.S. NUCLEAR REGULATORY COHH.
DR. JERRY R.
KLINE WASHINGTON, D.C.
20555 RTOHIC SAFETY & LICENSING BOARD U.S.
NUCLEAR REGULATORY COHH.
WASHINGTON, D.C.
20555 M DOCKETING & SERVICE SECTION OFFICE OF THE SECRETRRY U.S.
NUCLEAR REGULATORY COHH.
WASHINGTON, D.C.
20555
-.