ML20212P538

Response Opposing Ocre 860826 Motion for Continuance of Commission 860905 Meeting to Consider Issuance of Full Power OL for Facility.No Basis for Stay of Issuance of License Provided.Certificate of Svc Encl

ML20212P538
Person / Time
Site:	Perry
Issue date:	09/02/1986
From:	Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#386-562 CLI-86-07, CLI-86-7, OL, NUDOCS 8609030175
Download: ML20212P538 (12)

Text

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• L u 'e'f NUCLEAR REGULATORY COMMISSION 00CKEliNG'5 SEF'llCI-bi; A NCH BEFORE TIIE COMMISSION In the Matter of )

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

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(Perry Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFF RESPONSE TO OCRE'S MOTION FOR A CONTINUANCE George E. Johnson

- Counsel for NRC Staff September 2,1986 060903017S 860702 PDR ADOCK 05000440 G PDR

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- 00LKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF EELhtiARY 00CKET!?tG & EE?VICE

' O BEFORE THE COMMISSION In the Matter of )

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

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(Perry Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFF RESPONSE TO OCRE'S MOTION FOR A CONTINUANCE I

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George E. Johnson Counsel for NRC Staff September 2,1986

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

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

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(Perry Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFF RESPONSE TO OCRE'S MOTION FOR A CONTINUANCE I. INTRODUCTION By a " Motion for a Continuance ," served August 26, 1986 ("Mo-tion"), Ohio Citizens for Responsible Energy ("OCRE") seeks to stay both the Commission's September 5, 1986 meeting to consider issuance of a full-power operating license for Perry NucIcar Power Plant, Unit 1

(" Perry"), and the issuance of the license itself. The stay is sought pending a decision by the United States Court of Appeals on OCRE's Peti-tion for Review in Ohio Citizens for Responsible Energy Inc. v. NRC, Case No. 86-3355. The OCRE petition alleges that the Commission, in CLI-86-07, violated Section 189a of the Atomic Energy Act, abused its discretion, and was arbitrary and espricious by summarily denying OCRE a hearing (before the Appeal Board) on the January 31, 1986 earthquake which occurred in the vicinity of Perry, which issue OCRE asserts to be of material significance to the licensing of the Perry facility.

,O **$i 4- OCRE requests the Commission to stay issuance of the Perry Unit 1 full-power license based on application of the criteria in 10 C.F.R.

I 2.788. b As discussed below, OCRE has furnished no basis for stay of Com-mission action under 10 C.F.R. I 2.788. Therefore, OCRE's Motion should be denied in its entirety.

1 II. DISCUSSION A. Whether a Strong Showing is Made of Likelihood of Prevailing on the Merits

[ OCRE argues that CLI-86-07 violated Section 189a of the Atomic En-b ergy Act, of 1954, as amended (Act), by denying OCRE the right to a hearing on the issue of whether the Perry proceeding should be reopened to hear evidence concerning the safety significance of the January 31, 1986 earthquake near the Perry facility. Motion, at 2.

1_/ Although 10 C .F.R . I 2.788 applies by its terms to stays of deci-sions by presiding officers and the Appeal Board, and not to stays of Commission decisions, the Commission has applied 5 2.788 in some-what analogous circumstances. See, Pacific Gas and Electric Compa-ny (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-84-13, 20 NRC 267 (1984). In any event, as a codification of the well-established standard for stay requests of Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 921 (D.C. Cir. 1958), 10 C.F.R. I 2.788, provides valuable guidence for review of this re-quest for a stay.

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OCRE argues that the Government in the Sunshine Act (5 U.S.C.

. $ 552b) was violated. However, 5 U.S.C. I 552b(h)(2) expressly provides that:

. Nothing in this section authorizes any Federal court having jurisdiction solely on the basis of paragraph (1) [ dealing with enforcement of the Act's requirements] to set aside, enjoin, or invalidate any agency action (other than an action to close a (FOOTNOTE CONTINUED ON NEXT PAGE)

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.- However, the statutory right accorded to interested persons by Section 189a of the Act attaches to specified types of Commission licensing actions, not to all procedural decisions in an ongoing proceeding. OCRE was accorded hearing rights as a party in the Perry proceeding, and had the opportunity to, and did, litigate issues properly admissible under the Commission's Rules of Practice. The Court of Appeals has long accepted the notion that the Commission has broad authority to fashion reasonable procedural rules for the conduct of adjudicatory hearings which may have the affect of limiting the exercise of hearing rights. BPI v. AEC, 502 F.2d 424 (D.C. Cir. ,1974).

In this proceeding, the Commission determined that the Appeal Board misapplied Commission standards governing a particular aspect of Commission hearing practice--reopening of the record, under which a par-ty seeking to reopen a closed record carries the " heavy burden" not only of showing that the motion is timely, but that a significant safety issue is raised , and that the new evidence raised would have led to a different result in the proceeding. Kansas Gas and Electric Co. (Wolf Creek Gen-3,/

erating Station , Unit No . 1) , ALAB-462, 7 NRC 320, 338 (1978).

OCRE has not challenged the reasonableness of the Commission's long-l standing precedents which establish a moving party's burden in seeking l

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) meeting or to withhold information under this section) taken or discussed at any agency meeting out of which the violation of this section arose.

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Since the Commission's decision in CL1-86-07, the Wolf Creek criteria for granting a motion to reopen a closed record have been codified in 10 C.F.R. I 2.734. 51 Fed. RS.19535 (May 30,1986).

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reopening of a closed record. Thus, in the present proceeding, OCRE has not established a right to a hearing on a motion to reopen the -

record, and no statutory issue is raised merely by the Commfsalon's proper application of its own valid rules and precedents thereunder.

OCRE relies on San Luis Obispo Mothers for Peace, et al. v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), to show that its Section 189a hearing rights were violated (Motion at 3). However, its reliance is misplaced.

The Court of Appeals there found that affording a person the opportunity to raise an issue (in that case construction quality assurance) in an on-going proceeding, where to do so required satisfying the stringent re-quirements for reopening a closed record, was not an adequate substitute for the opportunity to raise issues in the first instance as a petitioner to intervene in a separate license amendment proceeding. _Id. , at 1315-16.

In contrast, here, OCRE's request for a hearing is not founded on any separate licensing action as to which Section 189a hearing rights attach, but upon a motion to reopen a closed record in a proceeding as to which it has been accorded all the rights of a full party. If anything, San Luis Obispo Mothers for Peace confirms that Section 189a hearing rights are not abridged by the application of the Commission's stringent requirements for granting a motion to reopen a closed record. 4/

l Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.

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l 1984) involves invalidation of a Commission rule having the affect of l permitting the Commission to resolve issues " material" to licensing l outside the hearing process. This case, which turns not on the l materiality of the issue, but satisfaction of long-standing Commission

! rules of practice, merely applies a valid procedure requirement, and l

removes no substantive issue from the purview of the hearing process.

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. a $.kW OCRE argues that CLI-86-07 is arbitrary and capricious (Motion, at 2), but fails "to address the reasoning of, or precedent for, the Commis-sion's CLI-86-07 determination that the Appeal Board misapplied Commis-uion precedent regarding the standards for reopening a closed record. l In this case, the Commission, on review of the Appeal Board's deci-sion on OCRE's motion to reopen, found that the Appeal Board was unable to find that a "significant safety issue" was raised. CLI-86-07, at 3. In those circumstances, the Commission held that its decision in Louisiana P_ower & Light Company (Waterford Steam Electric Station , Unit 3),

CLI-86-1, 23 NRC 1, 6 (1986), required that the motion to reopen be judged by the available information, and an exploratory hearing to deter-mine the "true safety significance" of the new issue was not permitted.

CLI-86-07, at 3, also citing Metropolitan Edison Co. (Three Mile Island Nuclear Station , Unit No. 1) , CLI-85-7, 21 NRC 1104, 1106 (1985).

Therefore, the Commission in fact was merely applying the well estab- -

lished (and now codified) criteria for reopening a closed record which place a heavy burden on the moving party. See Wolf Creek, supra, ALAB-462, 7 NRC at 338.

OCRE notes that the Appeal Board conducted a hearing on a motion to reopen the record on construction quality assurance in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

ALAB-756,18 NRC 1340 (1983). Motion, at 3. In that case, the parties were permitted to cross-examine each others' witnesses on the safety sig-

. nificance of the new information proffered. _Id. at 1343. The Commis-sion , however, may, in the exercise of its inherent supervisory authority, apply the well-established principles applicable to the burden

h of a party seeking to reopen a closed record to reach a result different

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from the Appeal Board. Such exercise of its authority is not arbitrary and capricious. 5_/

As a result, OCRE has not shown there is a great likelihood that the issue in CLI-86-07 was resolved incorrectly, or that it will succeed in having it overturned.

2. Irreparable liarm The harm OCRE argues will accrue to it from issuance of the Perry Unit 1 full-power license is the prejudice such issuance will have on its ability to vindicste its hearing rights. Motion, at 3. Thus, in this case, the assertion of irreparable injury is that OCRE's ability to obtain correct resolution on the issue of its hearing rights will be prejudiced by issu-ance of the license.

OCRE's argument is incorrect. Issuance of the full power license, even if it is assumed to be final agency action with respect to OCRE's right to a hearing on the seismic issue, does not moot its petition for review . Section 189b of the Act provides for judicial review of any final agency order in a licensing adjudication of the type specified in Section 189a, and thus, were OCRE, subsequent to issuance of the operating license , to prevail in its suit before the Court of Appeals the issuance of the operating license would not preclude remand to the Commission for the holding of a hearing on the seismic issue, or, were the Court to so 5_/ Although petitions for review were filed on the Appeal Board's denial of the motion to reopen in ALAB-756, the Commission denied the petitions. Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant , Units 1 and 2), C LI-8 4-3 , 20 NRC 267, 275 (1984).

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order, the suspension of the Commission's authorization of full-power operation during the pendency of such subsequent proceedings.

Since OCRE is incorrect that full-power operation would terminate its rights under the Act, its claim of irreparable injury is without basis, end should be rejected.

4. Harm to the Other Parties Applicants are directly and adversely affected by any stay which would interfere with their current plans for operation and the generation of electricity. We understand that Applicants' opposition will so demon-strate to the Commission.

5. Public Interest Considerations The public's overriding interest in the licensing process is the ade-quate assurance of protection of the public health and safety. Once that assurance is found, based on the record after all required hearing rights have been accorded, as they have been here, the public interest lies in an effective and expeditious licensing process.

In this case, the recent concerns about seismic qualification will be addressed by the Commission prior to issuance of a full-power license, b OCRE itself has stated that the recent seismic event near Perry

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caused little or no damage, and that "the high frequency acceedances of the SSE design acceleration do not have engineering significance. " OCRE Reply to Staff and Applicant Responses to OCRE's Motion to Reopen the Record and Submit a New Contention, at 1, cited in CLI-86-07, at 3. The Commission noted in CLI-86-07 that any additional confirmatory study of the seismic qualification of the Perry plant would be completed prior to issuance of a full-power license and the Commission would consider the matters raised in the Appeal Board's March 20, 1986 Order in its meeting on the full power license. Id., at 4. A Memorandum to Chairman Zech, (FOOTNOTE CONTINUED ON NEXT PAGE)

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o Since an adjudicatory proceeding has resolved all properly raised issues, and a full-power license will be issued only upon the Commission's finding that there is reasonable assurance that the Perry facility may be operated without undue risk to the public health and safety, the public interest lies in denial of a stay of effectiveness.

III. CONCLUSION For all of the foregoing reasons, OCRE's motion for a continuance should be denied in all respects.

Respectfully submitted, A

George . Jo son Counsel for NRC Staff Dated at Bethesda, Maryland this 2nd day of September,1986 l

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(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) from Victor Stello , Jr., Executive Director for Operations, dated August 28, 1986, notes the completion of such study and concludes that "the seismic design of the Perry plant remains acceptable and unaffected by the earthquake."

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' 00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '86 SEP -2 A11 :19 BEFORE THE COMMISSION f0C T r[.$$N BRANCH In the Matter of )

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

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(Perry Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO OCRE'S f MOTION FOR A CONTINUANCE" 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 Regu-latory Commission's internal mail system, or, as indicated by double

! asterisks, by hand delivery, this 2nd day of September,1986:

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• 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 Washington, DC 20555 Toledo, OH 43624

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

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

• 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

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' George E. Johny Counsel for NRC Staff i

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