ML20214R567

Response to State of Oh 860904 Petition for Leave to Intervene & Request That Petition Be Denied.Certificate of Svc Encl

ML20214R567
Person / Time
Site:	Perry
Issue date:	09/19/1986
From:	Glasspiegel H CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
References
CON-#386-828 OL, NUDOCS 8609290212
Download: ML20214R567 (13)

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September 19, 1986sNK 16 EP 23 P2 :36 0FFKE J- e 00CKEiirG s '-'IR BRANC4 UNITED STATES OF M4 ERICA NUCLEAR REGULATORY COMMISSION

. BEFORE THE COMMISSION In the Matter of )

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

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(Perry Nuclear Power Plant, )

Units 1 and 2) )

LICENSEES' RESPONSE TO THE STATE OF OHIO'S PETITION FOR LEAVE TO INTERVENE I. Introduction On September 4, 1986, the State of Ohio (" Ohio") filed a

" Petition for Leave to Intervene" as an interested State pursuant to 10 C.F.R. S 2.715.1/ For the reasons explained below, 1/ 10 C.F.R. 5 2.715(c) governs participation in NRC proceed-ings by an interested State or local government. It states:

(c) The presiding officer will afford representatives of an interested State, county, municipality, and/or agencies thereof, a reasonable opportunity to par-ticipate and to introduce evidence, inter-rogate witnesses, and advise the Commission without requiring the representative to take a position with respect to the issue. _

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e Licensees respectfully oppose Ohio's Petition.

II. The State's Petition Provides No Reasonable Justification for S 2.715(c) Participation at the End of the Proceeding A. The State Waited An Unreasonably Long Time to Intervene Ohio explains the reasons behind its Petition as follows:

'I the State of Ohio is making this re-quest to preserve its right to a reasonable opportunity to participate in the proceedings as and to introduce evidence, interrogate witnesses, and advise the Com- .

mission.

Among those issues pertaining to the i Perry Nuclear Station upon which the State would request participation is the matter of the adequacy of the licensee's offsite evacuation plans. On August 15, 1986, Gov-ernor Celeste asked the U.S. Nuclear Reg-i ulatory Commission to refuse to grant a full power license to the Perry Nuclear power station until such time as the State completed a review of the off-site evacua-tion plans. This action was aimed at ensuring the safety and protection of Ohioans before the plant reached full oper-ation. The State has begun a reevaluation of the plans which will be completed as quickly as is possible while maintaining a thorough and comprehensive review.

(Continued)

Such participants may also file proposed findings and exceptions pursuant to SS 2.754 and 2.762 and petitions for review by the Commission pursuant to S 2.786. The presiding officer may require such repre-sentative to indicate with reasonable spe-i cificity, in advance of the hearing, the i subject matters on which he desires to par- I ticipate. l 9

The State of Ohio looks forward to the opportunity to address their concerns as an interested party to the above-captioned matter.

Id. at 1-2 (emphasis added).

Licensees recognize the Commission's general policy behind 10 C.F.R. S 2.715(c), to afford an interested State a reason-able opportunity to participate in licensing proceedings. How-ever, in the cir'cumstances of this case, it was not reasonable for the State to wait five years while this proceeding was ac-tively litigated by others through trial and appeals, and then to seek participation as an interested State on the very last day before the Commission's meeting to consider a full-power license. Even under the most liberal interpretation of 10 C.F.R. 5 2.715(c), the State fails to establish adequate grounds for its admission as an interested State at this final stage -- when all contested issues have been fully litigated and decided at both the trial and appellate level.

Ohio states : hat it seeks "to preserve its right to intro-duce evidence, interrogate witnesses, and advise the Commis-sion." Petition at 1. The only issue which Ohio identifies is "the matter of the adequacy of the licensee's offsite evacua-tion plans." Id. Ohio fails to note that there has been an emergency planning issue admitted in this proceeding since July 1981.2/ After extensive discovery, motions practice, 2/ LBP-81-24, 14 N.R.C. 175, 189 (1981), as modified by LBP-81-35, 14 N.R.C. 682, 685-86 (1981).

i evidentiary hearings, and the filing of proposed findings, the Atomic Safety and Licensing Board ("ASLB") resolved all emer-gency planning contentions in Licensees' favor.2/ The Atomic Safety and Licensing Appeal Board (" Appeal Board") considered

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and rejected an appeal of the ASLB's decision on emergency

- planning.S The time to seek review by the Commission of the Appeal Board's decision, under 10 C.F.R. S 2.786, has now ex-i pired.

Had the State decided to intervene under S 2.715(c) during l these five years of proceedings, it would have had every rea- , ,

i l sonable opportunity to introduce evidence, interrogate witness-es and advise the Commission.E! It chose not to do so. At l

this point, after the eleventh hour, it would serve no useful l

4 purpose to admit the State as a 5 2.715(c) participant. The -

j hearings are completed, the record is closed, all appeals have j been decided, and the time for seeking Commission review has f expired. The State has had reasonable opportunity to address

! the Commission.

l 3/ LBP-85-35, 22 N.R.C. 514, 516-29 (1985).

4/ ALAB-841, 24 N.R.C. __ (1986).

l 5/ In fact, the ASLB admitted 5 2.715(c) participants in this i proceeding as early as 1981. See LBP-81-24, 14 N.R.C. 175 l (1981) (admission of the Lake County Board of Commission-i ers and the Lake County Disaster Services Agency);

j LBP-81-35, 14 N.R.C. 682 (1981) (admission of the Ashtabula County Commissioners and Ashtabula County Disas-i ter Services Agency).

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B. The State's Recently-Initiated Task Force Review Provides No Basis to Grant the Petition I Ohio notes in its Petition that it has begun a reevaluation of the [off-site evacua-tion] plans which will be completed as quickly as is possible while maintaining a thorough and comprehensive review.

Petition at 1-2. The Petition references a letter from Governor Celeste to the Commission, dated August 15, 1986. Governor i

Celeste's letter states, inter alia, that the Governor has ap-pointed a task force to reassess the emergency evacuation plans for Perry in light of the January 31, 1986 earthquake and the .

April 1986 Chernobyl accident.

The Governor's decision to rescind and reevaluate his prior approval of Perry's off-site emergency plans does not provide i adequate justification for intervention at this late date. Five years was more than a reasonable amount of time for the State to have raised emergency planning concerns.E/

Nor is the earthquake an adequate justification for the State's last-minute Petition. The earthquake occurred on January 31, 1986, -- over seven months ago. Notwithstanding the exten-sive activities concerning the earthquake on the part of the i Licensees, the NRC Staff, the Advisory Committee on Reactor Safe-i guards, intervenors and other groups opposed to the Perry g/ Indeed, the State actively participated outside these

! proceedings in developing, approving, and exercising the i offsite emergency evacuation plans for Perry.

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i project, and various Congressional committees, the State has failed to seek participation in any way on those issues.

The State's review of the April 1986 Chernobyl event also provides no justification for S 2.715(c) intervention on the eve of the Commission's consideration of a full-power license for Perry. No party to the proceeding has submitted a contention on Chernobyl, and the State's Petition does not indicate in what respect it might seek to raise new emergency planning issues

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relating to Chernobyl. In the absence of a prior-admitted con-tention, there are no issues on which the State could participate _.

even if it were admitted under 5 2.715(c).1#

! Thus, the State's review of off-site evacuation plans in light of the earthquake and Chernobyl provides no basis for S 2.715(c) participation.8/

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7/ Even if admitted to the proceeding as a participant under S 2.715(c), the State would have to meet the Commission's standards governing motions to reopen the record, and the

standards for new, late-filed contentions, if it wished to

introduce a new contention on Chernobyl. See, e.g., Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6 N.R.C. 760, 768-69 (1977); Proiect Management Corp. (Clinch River Breeder Reactor Plant),

i ALAB-354, 4 N.R.C. 383, 393 n.14 (1976); Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-83-30, 17 N.R.C. 1132, 1135-40 (1983).

i 8/ Section 2.715(c) is not the exclusive avenue by which a state can raise concerns with the NRC. If, after completing its task force review, the State believes there are issues arising out of its review that might justify

. licensing or enforcement action by the NRC, the State is always free to file a petition under 10 C.F.R. 5 2.206, which states, inter alia:

(Continued next page)  !

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l III. There is clear Commission Authority to Exclude a State Which Seeks S 2.715(c) Participation at the End of a Case i

The Commission and its boards have generally been fa-vorably disposed to granting petitions to intervene filed in a timely manner by state and local governmental units pursuant to I

5 2.715(c). However, Licensees are not aware of any case in

! which a 5 2.715(b) petition has been granted at such an advanced stage in a proceeding, where all hearings are complet-ed, all appeals have been considered and resolved, and the time for seeking further reviews by the Commission has expired. In fact, in the case that appears to be most on point, Pacific Gas

& Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and j 2), ALAB-583, 11 N.R.C. 447 (1980), the Appeal Board excluded a state which sought S 2.715(c) participation at the end of a i

] case.

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In 1979, after extensive ASLB hearings on seismic issues i

had been held in the Diablo Canyon operating license proceed-1 ing, and after the ASLB had issued its decision, the Governor i

(Continued)

, (a) Any person may file a request for j the Director of Nuclear Reactor Regulation, 1 Director of Nuclear Material Safety and j Safeguards, Director, Office of Inspection i and Enforcement, as appropriate, to insti-

! tute a proceeding pursuant to S 2.202 to modify, suspend or revoke a license, or for such other action as may be proper.

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of California petitioned to intervene under 5 2.715(c) and sub-mitted a brief challenging the ASLB's decision and seeking fur-ther hearings. The ASLB granted the petition, but ruled that the Governor must "take the proceeding as he finds it." The Appeal Board overruled the ASLB and denied the petition to in-tervene, ruling that 5 2.715(c) "does not permit the represen-i tative of an interested state to enter proceedings at the ap-pellate level as a matter of right where he took no part in the hearing below." ALAB-583, 11 N.R.C. at 449. The Appeal Board also ruled that the Governor had no right to file an appeal to ,

a decision when he had not helped to develop the record on l which that decision was based. Id.E!

j 9/ The Appeal Board noted:

"We have long adhered to the view that it is incumbent ' upon an interested person to act affirmatively to protect himself' in administrative proceedings, and that

'[..]uch a person should not be entitled to 4 sit back and wait until all interested per-sons who do so act have been heard, and then complain that he has not been properly treated.' As we have admonished, '[tlo permit such a person to stand aside and speculate on the outcome; if adversely affected, come into this court for relief; and then permit the whole matter to be re-opened in his behalf, would create an im-possible situation.'"

Id., 11 N.R.C. at 448 n.4. (citations omitted]. The appeal Board did accept the Governor's appellate brief as that of an amicus curiae. See 10 C.F.R. 5 2.715(d).

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! The case against S 2.715(c) participation in this case is even stronger than it was in Diablo. In that case, the Gover-nor filed a timely appeal advising the Commission of California's views. In this case, Ohio failed to file any ap-peal of the ASLB's emergency planning decision. Moreover, the 1

Ohio Governor's Petition fails to set forth any substantive views for the Co,mmission to consider, and fails "to indicate

! with reasonable specificity . . . the subject matters on which I

i he desires to participate." See 10 C.F.R. S 2.715(c). If the Governor of California was not permitted 5 2.715(c) participa- _

[ tion in the Diablo proceeding, i t follows, a fortiori, that Ohio's 5 2.715(c) Petition should be denied in this case.1E/

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10/ If the Commission decides to grant Ohio's Petition, Appli-cants request that Ohio be expressly required at this advanced stage of the proceeding to " adhere to procedural rules and requirements which govern other parties," and to i "take the proceeding as it finds it." See Cincinnati Gas 3 and Electric Co. (William H. Zimmer Nuclear Station)

! LBP-90-6, 11 N.R.C. 148, 151 (1980) (and cases cited

! therein). I

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5 IV. _ Conclusion 1

For all these reasons, Licensees request that Ohio's Peti-i tion be denied.

j Respectfully submitted,

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! SHAW, PITTMAN, POTTS & TROWBRIDGE 1

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(R . t Jay E. Sil:3 erg, P.C.

i Harry H. Glasspiegel i

l Counsel for Applicants i

j 1800 M Street, N.W.

l Washington, D.C. 20036

! (202) 822-1000 i

i g Dated: September 19, 1986 i

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I s l September 19, 0386700

! USNFC UNITED STATES OF AMERICA

} NUCLEAR REGULATORY COMMISSION '86 SEP 23 P2 :36 DFFICL w - s, BEFORE THE COMMISSION 00Cr(Eig;; .

arr In the Matter of )

)

THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMIANY, 5 ET AL. ) 50-441

)

(Perry Nuclear Power Plant, )

! Units 1 and 2) )

~

CERTIFICATE OF SERVICE l

This is to certify that on this 19th day of September, 1

1986, copies of the foregoing " LICENSEES' RESPONSE TO THE STATE l

OF OHIO'S PETITION FOR LEAVE TO INTERVENE" were served by de-posit in the United States Mail, first class, postage prepaid, to all persons listed on tne atta"fied Service List.

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Harry H Glasspiegel '

Dated: September 19, 1986 i

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s 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 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 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 Washington, D.C. 20555 James P. Gleason, Chairman 513 Gilmoure Drive Kenneth M. Carr, Commissioner Silver Spring, Maryland 20901 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Jerry R. Kline 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 Atomic Safety and Licensing Jefferson, Ohio 44047 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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Colleen Woodhead, Esquire Donald T. Ezzone, Esquire 1

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 l

Terry Lodge, Esquire William C. Parler J

, Suite 105 General Counsel j 618 N. Michigan Street U.S. Nuclear Regulatory Toledo, Ohio 43624 Commission 20555 j Washington, D.C.

j Ms. Susan L. Hiatt Sharon Sigler, Esq.

j 8275 Munson Avenue Assistant Attorney General i Mentor, Ohio 44060 Environmental Enforcement Atomic Safety and Licensing Section Board Panel 30 E. Broad Street - 17th Floor U.S. Nuclear Regulatory Commission Columbus, Ohio 43215 l Washington, D.C. 20555 ,,

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