ML20212P910
| ML20212P910 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 09/02/1986 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20212P913 | List: |
| References | |
| CON-#386-563 OL, NUDOCS 8609030335 | |
| Download: ML20212P910 (13) | |
Text
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,p Septekhek2,1986 16 SB) -2 M1 :17 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIgFICE OF f Mt ?,RY 00CKETING s SLPvlCf.
BRANCH BEFORE.THE.. COMMISSION In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL.
)
50-441
([((,
)
(Perry Nuclear Power Plant,
)
/
Units 1 and 2)
)
LICENSEES.' RESPONSE.TQ__QCRE_.MOTJON.FOR. CONTINUANCE I.
INTPODUCTION On August 13, 1986, the Nuclear Regulatory Commission an-nounced its intention to hold a public meeting on September 5, 1986, for a " Discussion /Possible Vote on Full Power Operating License for Perry-l."
On August 26, 1986, Ohio Citizens For Responsible Energy ("OCRE") filed a Motion for a Continuance requesting that the Commission continue its scheduled meeting and refrain from issuing a full power license for Perry Unit 1 pending the outcome of Ohio. Citizens.for. Responsible Energy, I n c... v.. N R C, Case No. 86-3355, before the Sixth Circuit Court of Appeals.
OCRE Motion at 1.1/
OCRE acknowledges, that since its motion 1/
The case cited by OCRE involves its appeal to the U.S. Court of Appeals for the Sixth Circuit, filed on April 23, 1986, (Continued Next Page) 8609030335 860902 PDR ADOCK 05000440 G
a e
" seeks a stay of a proposed Commicsion action," it must meet the four factors of 10 C.F.R. 5 2.788(e).
Id. at 1.
For the reasons set forth below, OCRE's motion is without basis and should be denied.
II.
OCRE PROVIDES NO JUSTIFICATION FOR A CONTINUANCE OE.THE. COMMISSION.' S. SEPTEMBER _S. MEETING..
OCRE's motion requests a stay of both the September 5 meeting and the issuance of a full power operating license for Perry Unit 1.
OCRE's Motion provides no basis to staying the scheduled September 5 meeting.
Aside from asking that the Com-mission " continue its scheduled meeting", OCRE barely addresses the meeting itself, focusing instead on issuance of a full power operating license for Unit 1.
Applying the stay criteria set forth in 10 C.F.R. S 2.788(e)2/ it is clear that there are (Continued) seeking reversal of CLI-86-7, 23 N.R.C. 233 (1986).
The present status of OCRE's judicial appeal of CLI-86-7 is discussed below.
2/
10 C.F.R. 5 2.788(e) states:
(e) In determining whether to grant or i
deny an application for a stay, the Commis-sion, Atomic Safety and Licensing Appeal Board, or presiding officer will consider:
(1) Whether the moving party has l
made a strong showing that it is like-I ly to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a (Continued Next Page)
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4 no grounds for continuing the September 5 meeting.
Certainly, OCRE cannot be irreparably harmed by the meeting, since the planned discussion and possible Commission vote would them-selves cause no OCRE conceivable injury (let alone irreparable injury).
Nor does OCRE's motion deal with the remaining fac-tors in any better fashion.
OCRE has simply failed to present any coherent arguments for staying the September 5 meeting, let along meet its burden of persuasion.3/
III.
OCRE PROVIDES NO JUSTIFICATION FOR STAYING ISSUANCE.OF.A FULL.. POWER OPERATING.. LICENSE In addition to its failure to justify a continuance of the September 5 Commission meeting, OCRE has failed to meet its burden of showing that issuance of a full power license should be stayed until the Court of Appeals has ruled on OCRE's ap-peal.
Contrary to OCRE's arguments, a proper application of the stay criteria requires denial of OCRE's motion.
(Continued) stay would harm other parties; and (4) Where the public interest lies.
ll-It is at least arguable that the Commission meeting is not a
" decision or action", 10 C.F.R. 5 2.788(a), for which a stay i
may be sought.
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3/
The burden of persuasion in satisfying the four-part test rests on the moving party.
Alabama Power.co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-81-27, 14 N.R.C. 795 (1981). l l
A.
OCRE..Has_ Failed..To.Show Irreparable.Ipiury of the four factors to be considered in passing upon a stay application, the most crucial is whether irreparable inju-ry will be incurred by the movant absent a stay.4/
OCRE's only claim of irreparable harm is that --
once the Commission issues a full power license for Perry (and necessarily disposes of the seismic issue) the " ultimate licens-ing 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 case before the Court, as OCRE will no longer possess the right to a hearing upon which it has staked a claim in its Petitioner's Brief.
A con-tinuance to preserve OCRE's rights and sta-tus is therefore necessitated.
OCRE Motion at 3-4.
OCRE fails to establish or support its as-sertion that its pending appeal to the Sixth Circuit would be
" render [ed] moot" by issuance of the full power license.
OCRE's claim has no merit.
OCRE is free to pursue its appeal of CLI-86-7 nothwithstanding issuance of a full pcwer license.
If the Court of Appeals ultimately finds that CLI-86-7 was in error and that the relief requested by OCRE is appropriate --
which is highly unlikely for the reasons stated below -- the Court's authority to order such relief would be unaffected by 4/
Cleveland. Electric Illuminating. Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 N.R.C.
743, 746 &
nn.7-8 (1985)...
e the granting of a full power license.
OCRE provides no basis for the Commission to conclude otherwise.5/
Thus, OCRE has not supported its claim of irreparable in-jury.
B.
A Stay Would Result In Substantial Epoposic.JndpIY Tp.O.ther. Parties.
The attached Affidavit of Murray R. Edelman demonstrates that a stay would result in substantial economic injury to Licensees, their stockholders and/or customers.p/ As shown by Mr. Edelman's affidavit, the costs of a stay would be at least
$2.2 million per day, even without considering the costs of re-placement power.
OCRE claims that Licensees would not be harmed by a stay pending a decision on OCRE's appeal to the Sixth Circuit, be-cause they "have not demonstrated that they are in fact ready to receive a full power license."
See OCRE Motion at 4.
The only support for this assertion is a passing reference to "the infamous charcoal fire in the offgas system (and others t
5/
The Appeal Board rejected a similar mootness argument by OCRE in denying OCRE's earlier stay request.
ALAB-820, 22 N.R.C.
743 at 748-749.
1/
Egg 10 C.F.R. 52 2.788(e)(3).
It is appropriate to con-
~
sider cost increases due to a stay under 10 C.F.R. 5 2.788.
Qe, Ae, Phi.ladelphia Electrig.Co. (Limerick Generating Sta-i tion, Units 1 and 2), ALAB-808, 21 N.R.C. 1595, 1603 (1983);
Pacific.Gus add.Elec.tric Co..
(Diablo Canyon Nuclear Power Plant, Un:.ts 1 and 2 ), CLI-85-14, 22 N.R.C. 177, 180 (1985).
s identified in the LERs)."
Jg.
Licensees have fully discussed the charcoal fire and matters identified in LER's, and their corrective actions, in detailed filings with the NRC Staff.
These corrective measures provide assurance that Perry Unit 1 can safely proceed above 5% power.
As with any operating license, operational readiness is determined by the NRC's Re-gional inspection staff.
OCRE fails to allege any reason why that mechanism should not be relied on here.
OCRE also alleges poor performance at plants other than Perry, OCRE Motion at 4, but fails to show any nexus between these and the specific issues before the Commission in the Perry license proceeding.
Without such a nexus, these arguments are irrelevant.
In any event, granting OCRE's stay would result in a sig-nificant delay in full power operation of the Perry Plant.
At OCRE's request, the Court of Appeals granted OCRE an extension in the Court's briefing schedule of about a month.Z/
The Clerk's Office of the Sixth Circuit advised Licensees' counsel on August 29, 1986, that oral argument in the case would likely take place 6 to 8 months after filing of the Joint Appendix, which is required by October 10, 1986.
The Clerk's Office 2/
Sgg OCRE Motion For Extension of Time to File Brief (July 18, 1986)
OCRE's counsel requested the extension because of "a number of unexpected court appearances," and because " Counsels' office recently received a new computer system and said system has caused numerous delays in preparation of the drafts of the argument."
further advised that a decision would likely be issued between 6 weeks and 6 months after oral argument.
Based on these pro-jections, a decision on OCRE's appeal would be issued as early as late May, 1987 and as late as mid-December, 1987.
Thus, the stay requested by OCRE would likely result in many months of licensing delay, at a cost of over $60 million per month.
As the moving party, OCRE must demonstrate that such costs are outweighed by other factors.
OCRE has not done so.
C.
OCRE Has Failed To Show That A Stay Would Be In_The.Jublic. Interest._.
OCRE asserts that the public interest would be served if full power operation of Perry Unit 1 is delayed until after OCRE has an opportunity to participate in an adjudicatory heat-ing on the January 31, 1986 earthquake.
Se.e OCRE Motion at 4-5.
However, as the Commission recognized in CLI-86-7, OCRE failed to carry its burden of justifying reopening the record to adjudicate a new contention on the earthquake.
As demon-strated below, it is unlikely that the Court of Appeals will i
overturn the Commission's ruling in CLI-86-7.
Even if OCRE were afforded an opportunity to litigate a new earthquake con-l tention, OCRE has failed to even hint at safety-significant in-formation it would present.
OCRE itself has already conceded that the earthquake's high frequency exceedences had no engi-l neering significance, and that the earthquake caused little or no damage to the plant.
geg CLI-86-7, 23 N.R.C. at 236.
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Extensive reviews by Licensees, the NRC Staff, the ACRS, the U.S. Geological Survey and others have concluded that the January 31 earthquake does not call into question Perry's seismic design.
In these circumstances, the public interest weighs heavily against the issuance of a stay pending OCRE's appeal, and in favor of permitting Licensees to proceed with full power opera-tion.
D.
OCRE_Is Unlikelt.to_ Prevail.on_ADDeAl OCRE's motion sets forth two arguments allegedly showing that it is likely to prevail before the Sixth Circuit: (1) the Commission,'s denial of OCRE's motion to reopen violated S 189(a) of the Atomic Energy Act, and (2) the Commission's denial was "an arbitrary and capricious abuse of discretion."
OCRE's first argument at bottom appears to be a claim that NRC's standards for deciding a motion to reopen are inconsistent with a purported absolute right to a hearing embodied in S 189(a).
'o The short answer to this assertion is the judicial approval of NRC's standards for reopening.
See, eggg, San Luis..Obispo Mothers.. For. Pea.ce.v,. NR.C, 751 F.2d 1287, 1316-18 (D.C. Cir.
1984), vacated..and rehearing granted.in.p.onpertinent.part, 760 F.2d 1320 (D.C. Cir. 1985), affirmed 789 F.2d 26 (D.C. Cir.
1986)(en banc); In..re Three Mile.. Island.Alertm Ipp., 771 F.2d-720, 732 (3d Cir. 1985), part den. 106 S.Ct. 1460 (1986).
The,
decision in Un'ipn_.of. Concerned Ecien,tists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert. den. 105 S.Ct. 815 (1985), cited by OCRE is inapposite, since it does not deal with a motion to reopen.
OCRE's second argument is similarly weak, given the great deference shown by courts to NRC decision-making, s.e e,
n, Baltimore Gas...&_ Electric _Co._v. NBDC, 462 U.S.
87, d
103 (1983); the Commission's well-recognized sua sponte authority, see, e ga, 10 C.F.R. 5 2.786(a) and Public z
Servict Co of New.Hamnahire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 N.R.C. 503 (1977); OCRE's acknowledgement that the high frcquency exceedences lacked engineering significance; and the extensive information available to the Commision on the earthquake.
Thus, OCRE has failed to meet its burden to show that it is likely to prevail on the merits.
IV.
CONCLUSION 4
For the reasons set forth above, Licensees respectfully request that the Commission deny OCRE's Motion for a Continuance.1/
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE l
C..
y E.
- Silberg, P.C.
}
ary{.Glasspiegel
. Counsel for Applicants 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 Dated:
September 2, 1986 4
1/
The August 28, 1986 letter to the Commission from Dale A.
Baich and M. Joanna Ettore, counsel for OCRE in the Sixth Cir-cuit litigation, adds nothing to OCRE's argument.
The letter's incorporation of the August 26 Motion is merely redundant.
Nor does its advice that OCRE intends to ask the Court for a stay pending review if the Commission denies OCRE's August 26 motion add any additional basis for support of the motion. 4 t
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DOCKETED USNRC September 2, 1986.
16 ?? -2 21:17 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF IEC." Tuf 00CXE Tlini & 'J:"' r:<.
C r '. ?C u BEFQBE THE COMMISSION In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE This is to certify that on this 2nd day of September, 1986, copies of the foregoing " LICENSEES' RESPONSE TO OCRE MO-TION FOR CONTINUANCE" were served by hand-delivery to the Chief of Docketing and Service Section and to the Commissioners,*/
and by deposit in the United States Mail, first class, postage prepaid, to all other persons listed on the attached Service List.
.. w
(. __ _
Silberg Gag E Dated:
September 2, 1986
- /
The Commissioners' copies of the above-entitled document have been hand-delivered directly to the Chief of the Docketing and Service Section.
q l
l UNITED STATES OF AMERICA
{
NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
{
In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
SERVICE LIST Lando W.
Zech, Jr., Chairman Dr. W. Reed Johnson i
U.S. Nuclear Regulatory Commission
. Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U.S. Nuclear Regulatory Thomas M. Roberts, Commissioner Commission U.S.' Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Howard A. Wilber j
James K. Asselstine, Commissioner Atomic Safety and Licensing-
~
U.S. Nuclear Regulatory Commission Appeal Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Frederick Bernthal, Commissioner Washington, D.C.
20555 U.S. Nuclear Regulatory Commission t
Washington, D.C.
20555 James P. Gleason, Chairman 513 Gilmoure Drive l
Kenneth M. Carr, Commissioner Silver Spring, Maryland 20901 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Jerry R.
Kline 4
Atomic Safety and Licensing Board William L. Clements, Chief U.S. Nuclear Regulatory Commission Docketing & Service Section Washington, D.C.
20555 office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Glenn O.. Bright Atomic Safety and Licensing Board Atomic-Safety and Licensing Appeal U.S. Nuclear Regulatory Commission Board Panel Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 John G.
Cardinal, Esquire Prosecuting Attorney Alan S.
Rosenthal, Chairman Ashtabula County Courthouse 4
Atomic Safety and Licensing Jefferson, Ohio 44047 Appeal Board U.S.
Nuclear Regulatory Commission i
Washington, D.C.
20555
Colleen Woodhead, Esquire Donald T.
Ezzone, Esquire Office of General Counsel Assistant Prosecuting Attorney U.S. Nuclear Regulatory Commission Lake County Administration Center Washington, D.C.
20555 105 Center Street Painesville, Ohio 44077 Terry Lodge, Esquire William C.
Parler Suite 105 General Counsel 618 N. Michigan Street U.S. Nuclear Regulatory Toledo, Ohio 43624 Commission Washington, D.C.
20555 Ms. Susan L. Hiatt 8275 Munson Avenue Mentor, Ohio 44060 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 i
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