ML20024B749

Reply Opposing Util & NRC Responses Opposing Ohio Citizens for Responsible Energy 830510 Motion to File Contentions on SNM License Application.Certificate of Svc Encl

ML20024B749
Person / Time
Site:	Perry
Issue date:	07/05/1983
From:	Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8307110310
Download: ML20024B749 (15)

Text

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n July"5, 1 i.

UNITED STATES OF AMERICA teSJ'P Q L

NUCLEAR REGULATORY COMNISSION o. T Before the Atomic Safety and Licensing Board 1983>h feweg In the Matter of ) .iEQ4%, ,,

CLEVELAND ELECTRIC ILLUMINATING Docket Nos. 50-440 COMPANY, Et Al. ) 50-441 '

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) (Operating License)

(Perry Nuclear Power Plant, ) ,

Units 1 and 2) )

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OCRE REPLY TO STAFF AND APPLICANT RESPONSES TO OCRE'S MOTION TO FILE CONTENTIONS ON'SNM LICENSE APPLICATION Intervenor Ohio Citizens for Responsible Energy 1/

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( " OCRE'.' ) hereby replies to the responses filed by Staff and Applicants pertaining to OCRE's motion, dated May 10, 1983- filing five contentions based on the SNM license application filed by Applicants. Both Staff.and Applicants oppose the admission of these contentions on a number of grounds. OCRE shows below that their arguments are without merit.

I. Jurisdiction of Licensing Board over SNM License Both Staff and Applicants claim that the Board lacks jurisdiction over the SNM license. Both parties cite Pacific Gas and Electric (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-76-1, 3 NRC 73 (1976) as in E .

k' 8 _1_/ - This reply is filed in accordance with the Licensing Lg Board's October 6, 1982 Memorandum and Order (Concerning O Procedures for Late-Filed Contentions). OCRE has found E it necessary tp use some material not present in its

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original. fili,ng- specifically, citations to: CLI-77-2, CLI-76-22, and ALAB-291; City of West Chicago v. NRC; kg 10 CFR SS 51.53 and 51.52; S 103 of the Atomic Energy Act; mmo Proposed'10 CFR 553, 10 CFR 71.5(a), 49 CFR 177.825, and 49 USC 1811; Board Exhibit 2; FSAR Table -13.1-3'; Attachments '

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supporting a Licensing Board's assumption of jurisdiction only in'that specific instance. However, the Commission found that "it made good practical sense" for the Diablo Canyon board to hear such issues because of its famili,ality with the case and because "the. license is integral to the Diablo Canyon project." The same arguments, of course, can i ,lua made for any OL case; i.e., that the SNM license is integral to the. project and the OL Licensing Bdard'is best qualified to hear the issue. The Staff's example of the Susquehanna case appears to confirm that the Commission has established a policy of letting OL boards hear Part 70 issues.

Applicants claim that, unlike the Diablo Canyon case, such a move would involve prejudice to a party:

i Applicants, in that they could not challenge OCRE's standing to intervene in the SNM case and that they would have no right of'immediate appeal. These arguments are unconvincing.

OCRE sees no difference.in the requirements to establish standing to intervene in an OL case as opposed to a SNM case.

And Applicants, if threatened with immediate harm from a ruling on the SNM issue, could always file a motion for 1/ continued. . 1 and 2. These material's were used for one or more of the following reasons: they were cited by Staff or Applicants in their responses; they were unavailable l to OCRE until now; or, the need for dsing these materials did not'become' apparent until Staff and Applicants responses were

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filed. OCRE Mas no objection to Applicants responding to new material, providing their response is limited to the items listed above which were not cited in the responses of Staff and Applicants.

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directed certification, as they have already done twice

- in this proceeding. OCRE thus maintains that the Licensing Board has jurisdiction over SNM issues..

II. Timeliness of the Contentions Both Staff and Applicants regard the five contentions filed by OCRE to be unjustifiably late,. as. the SNM application

.was submitted in August 1982~, even though OCRE was unaware Both

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of its existence until late March of this. year.

parties cite Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687 (August 19, 1982).

OCRE interprets Catawba to stand'for an intervenor's right to submit contentions based on new information not previously available. The Appeal Board specifically rejected placing intervenors in a " Catch-22" situation.(slip op, at 18) and stated that an intervenor must have had an opportunity

- to examine the document to be relied upon (slip op, at 14, emphasis in original). It would be the ultimate injustice to expect OCRE to be aware of the existence of, let alone examine,-a.SNM license application which was not placed in the local public document room and the docketing of which was not published in the Federal Register.

OCRE would further note that the Appeal Board and dhe.Commisdion have held that Staff and Applicants have an ,

affirmative duty to keep the boards and parties informed and advised of all information and significant developments related to a proceeding. See Consolidated Edison of New York (Indian Point Station, Units 1, 2, and 3), CLI-77-2, f-5 NRC 13 (1977); Virginia Electric and Power Co. (North Anna l - - -__

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Power Station, Units 1 and 2), CLI-76-22, 4 NRC 480 (1976);

Duke Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 and 2),

ALAB-291, 2 NRC 404 (1975). It is Staff. and Applicants, not

OCRE, that should be faulted for not meeting the Commission's requirements.

Applicants also argue that some.of the specific

'information used by OCRE in support of and as basis for its contentions had been'previously available. This ignores the fact that the SNM application was the trigger for late filing, and that the concerns raised are specific to the SNM application ~and the requirements for same under 10 CFR Part 70.

Staff and Applicants also argue that the NRC Staff is protecting OCRE's interests in the SNM matters. It should be quite obvious that the Staff does not represent OCRE's interests in-this proceeding. OCRE would also suggest that the Staf f's conduct in this proceeding demonstrates that it does not protect the public interest generally, but rather protects Applicants'.

OCRE maintains that good cause has been shown for l late filing, and that the criteria of 10 CFR 2.714 have been favorably met.

III. Contentions .

A. Need for NEPA Cost / Benefit Analysis Both Staff and Applicants oppose the admission of this contention, claiming that the NRC has already issued an environmental impact statement, the FES, NUREG-0884, which l

supposedly. encompasses the impacts associated with the SNM

l license. However, the FES, which is "the result of the NRC Staff review of the activities associated with the proposed operation of-the plant" (p. iii of NUREG-0884) is not an analysis of the activities Applicants propose in their SNM application, i.e., the receipt, possession, inspection,'.and storage of unirradiated fuel and. associated materials.

The FES does not address the societal and. economic impacts

'(nor the need or benefits, which are non-existent) of these activities. The FES cannot be considered a substitute for the EIS which needs to be performed before.the Part 70 license can be granted.

Staff and Applicants also claim that..the contention is an impermissible challenge to 10 CFR 51.5 (d) (4) . Applicants also contend that only the Commission, not the Licensing Baord, has the authority to grant exemptions from this., pro-vision.

First, OCRE maintains that the exceptional nature, circumstances, and impacts of granting the SNM license, as described in OCRE's motion, demand a cost / benefit analysis 2/

in this case. Secondly, a recent court case also demands a NEPA analysis, or at least a record supporting a decision nct to perform one. In City of West Chicago v. U.S. Nuclear Regulatory Commis'sion, 701 F2d 632, 651, the, court held that an agency's decision not to issue an EIS for an activity it I claims has an insignificant impact nay be reversed if 2/ Although Applicants' amendment to the SNM application changing the beginning of its term.from July 1983 to August 1984 may lessen to some extent the economic impacts of fuel storage (assuming the fuel load date for Perry 1 is

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arbitrary or capricious, and that the " threshold decision not to issue an EIS must be supported by a' record sufficiently i developed to permit judicial review." Obviously, there is 1 l

no such. record-in this instance. OCRE further asserts that, under this standard, 10 CFR 51.5 (d).(4) is arbitrary and capricious in that it not only exempts the Commission from

. preparing an EIS,..but also any negative. declaration or environmental impact appraisal. Thusi no record is available for judicial review. The Commission should abide by the court's decision and prepare the NEPA analysis, as this is the best way to ensure compliance with West Chicago and thus avoid endless litigation.

OCRE ale.o believes that the Licensing Board.has the authority to make this decision. E.g., 10 CFR 51.53 permits the presiding officer to authorize fuel loading, except where a party opposes such authorization on environ-mental grounds, in which case 10 CFR 51.52 (b) , (c), or (d),

as appropriate, will apply. The appropriate section is subpart (d), which states 'that when the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards (r.pplicants, at p. 4 of their reply identify this official as being responsible for issuing the SNM license) has determined that no EIS need be prepared, and'a party to the proceeding has taken a position on the matter, the 2/ continueds not extended further), OCRE still

-maintains that Applicants should have to prove why it is necessary for the fuel to be on-site any time prior to the issuance of the operating license.

presiding officer will decide the matters in controversy.

Thus, the Licensing Board has been expressly granted the authority to hear and determine NEPA issues related to the SNM application. ,"

The Atomic Energy Act would also appear to require a balancing of costs and benefits before granting the SNM license. Section 103 of the Act (42 USC .2133 (b)) allows the issuance of licenses only when."the proposed activities will serve a vseful purpose proportionate to the quantities of special nuclear material or source material to be utilized."

OCRE contends that storage on the site of material which Applicants may never be allowed to use does not meet this test.

OCRE thus maintains that a NEPA cost / benefit analysis must be performed, and that such an analysis must conclude that Applicants should not possess the fresh fuel and associated material unless and until an OL is issued.

B. Transportation Laws Both Applicants and Staff oppose the admission of this contention, citing cases indicating that the NRC need not wait for state and local government. authorization before granting 1icenses for activities within its juris-diction. These cases notwithstanding, the C6mmission appears i

l to consider local laws as an important factor to be considered i

before taking federal action. Proposed 10 CFR S 53, " Criteria l ,

and Procedures for Determining'the Adequacy of Available i Spent Nuclear Fuel Storage Capacity" (4 8 Fed. Reg. 19382, April 29, 1983) lists as a factor favoring the use of federal

storage facilities for spent fuel (which Congress intended

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to be used only as a last resort- see 128 Cong. Rec. S 4196, 4282, and 4286-7). " local or State laws limiting or preventing the timely expansion or addition of storage . capacity or s

transhipmen t. " S 53.13(a), emphasis added; see also S 53.30 (a) (7) . If the Commission considers the existence of local transportation laws as a valid reason for letting utilities use federal spent fuel storage. facilities (an action to be taken sparingly), the " elaborate mechanism" of DOT regulations notwithstanding, then these laws must affect the NRC's jurisdiction.

Moreover, there is neciprocity between NRC and DOT regulations. 10 CFR 71.5 (a) requires licensees to comply with DOT regulations, specifically 49 CFR Parts 170-189 when transporting licensed material. 49 CFR 177.825(b) requires carriers of large quantity radioactive materials to use only " preferred routes" (i.e., Interstate highways). If local ordinances prevent--3/the use of these

" preferred. routes", then DOT regulations have not been complied with, and in accordance with 10 CFRR71. 5 (a) , the material cannot be transported.

_3/ Pre-emption o'f local transportation laws is not as automatic as Applicants imply. 49 USC 1811(b) allows localities to seek a waiver of pre-emption. See also City of New York v. U.S.' Department of Transportation, 539 F.Supp. 1237 (.19 82 ) , concerning the validity of the DOT's related regulatory provisions.

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-s-OCRE therefore maintains that this contenrion is applicable to this proceeding. The NRC does have responsibilities with respect to these matters, especially since only the NRC can satisfy the "need to ship" clause ^inathe ordinances. ~

C. Training and Experience 9

Both Applicants and Staff oppose the admission of this contention. Applicants claim that the operating records of the other CAPCO plants are not relevant since CEI does not operate them. This is true;.however, the poor performance of these plants (of diverse design and manufacture) would lead a reasonable mind to inquire further as to the extent that CAPCO management is responsible, and whether this management philosophy infects CEI and what effect it will have on their ability to safely handle the materials sought.

Moreover, Perry personnel are receiving training at

- Davis-Besse "to begin indoctrination of CEI personnel to the operational QA environment." Board Exhibit 2, " Assessment of Quality Assurance Program. Effectiveness, Perry Nuclear Power Plant, Fourth Quarter-.1982", p. 2. See also FSAR Table-13.1-3, Resume No. 24, for the General Supervising Engineer, Radiation Protection Section. Given Davis-Besse's operating record, these personnel are becoming' accustomed to a substandard operational environment.

'Thus, the operating records of the other CAECO nuclear plants are relevant, .as is the statement of the ACRS chairman. Applicants are drawing an artificial distinction between nuclear operational experience and the experience necessary for the SNM license. The fact is that Applicants O

lack commer6ial nuclear experience. There is no reason to assume that they have the experience needed for handling nuclear fuel and associated materials either.

D. Financial Qualifications .,

Both Applicants and Staff' oppose the admission df this contention. Applicants claim that the storage costs for the SNM are not of such magnitude as to. warrant their.

consideration by the Commission. An examination of Applicants' financial condition, as revealed by Attachments l~and 2, indicates that the construction costs of Perry are so great that they are resorting to extreme measures (enticing customers to become stockholders, and major. cost-cutting moves). 'OCRE speculates that, in desperation to save money, Applicants might " cut corners" in the storage of the SNM, thereby lessening security, radiation protection, and criticality control measures. As these actions would increase the risk to the public, the Commission must consider Applicants' financial qualifications.

E. Criticality Hazards As Applicants have withdrawn their request for an exemption from 10 CFR 70.24 (upon which this contention is based), OCRE is withdrawing the contention.

Respectfully submitted,

- - e- I Susan L. Hiatt OCRE Representative 8275 Munson Rd.

Mentor, OH 44060 (216) 255-3158

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This Prospectus contains information concerning the

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Campany and its Common Stock, but does not contain all '

of the information set forth in the Registration Statement, and the exhibits, schedules, reports and proxy statement .

r:liting thereto, which the Company has filed with the Securities and Exchange Commission, Washington, D.C..

The Cleveland . Electric under the Securities Exchange Act of 1934, and to which ref1rence is hereby mad? Illunt nat ng C0mpany TABLE OF CONTENTS The Compa ny . . . . . . . . . . . . . . . . 2. . . . . . . . .Page Summary of Principal Changes .. .

to th e Plan . . . . . . . . . . . . . . . . . . . . .2. . . Dividend Reinvestment Davidend Reinvestment and Stock and Stock Purchase Plan Purche.se Plan . . . . . . . . . . . . . . . . 3. . . .

Purp os e . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Ad va n tages . . . . . . . . . . . . . . . . . . . . . . 3 Administra tion . . . . . . . . . . . . . . . . . . 4 Participation . .. ...... ....... 5 '

Enrollment in the Plan . . . . . . . . . 5 Completing the Authorization Forms 5 Optional Cash Pa Purchases . . . . . ...... .yments . . . . . . . . . 7.

.. ....... S Certificates for Shares . . . . ...... 8 .

Dividends . . . . .............. 9 Withdrawal . . . . . . . . . . . . . . . . . .. 9 -

Sales of Plan Account Shares .. . 11 -

Reports to Participants . . . . . . . . . 11 Reenrolling in' the Plan . . . . . . . . . PROSPECTUS 11 Other Information . ....... ..... 11 Income Tax Withholding . . . . . . . . . . 13 Federal Income Tax Considerations . 14 Use of Proceeds . . . . . . . . . . . . . . ... . . 15 ....

Incorporation of Certain Docuraents by Reference . . . . . . . . . . . . . . . . . . . . . . . 15 Available Information . . . . . . . . . . . . . . . . 16 Legal Opinion . . . . . . . . . . . . . . . . . . . . . . 16 Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 N2 persin has been authorized to give any information or is mike any representation not coptained in tiiis 1*rospectus and, if given or made. such information or May 26,1983, repr:sentation must not be re!Jed upon as having been ruth:rized by the Company.,

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PR0SPECTUS. -

. 1 The Cleveland Electric Illuminating Company. ..

Dividend Reinvestment and Stock Purchase Plan ,

j The Company offers:

1. To its Common, Preference and Preferred Stock share owners a simple and convenient method of automatically reinvesting dividends an either all or a portion of their shares and investing optional cash payments in Company Common Stock.

2. To its customers, even if they do not already own Company stock, the op'p ortunity of investing optional cash payments in Common Stock. -

No brokerage commissions or service fees will be charged to participants fr r purchases under the Plan.

The purchase price will be the average of the high and low sales prices of the Common Stock on the investment date, as reported on Network A of The Consolidated Transaction Reporting System. If no trade was made on that date, the purchase price will be the average of the daily averages of the high and low sales' prices of the Con. mon Stock as so reported for the last day of trading immediately before and for the first day of trading immediately after the investment date.

A complete statement of the Plan is contained in this Prospectus under the caption " Dividend Reinvestment and Stock Purchase Plan"..

In the opinion of counsel for the Company, the Common Stock is exempt from existing Pennsylvania personal property taxes. ,.

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i THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURI-TIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

SAVE THIS DOCUMENT. IT SETS FORTH THE TERMS OF THE PLAN

. AND HOW IT OPERATES.

Dated May 26,1983 S

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l The tax treatment described in 2(a), (c) and (d), above, is available to your share of dividends reinvested as a tenant in common orjoint tenant owner with one or more other owners, regardless i of whether the other owners also elect such tax treatment. A grantor-trust also may elect to use that tax treatment. , ,

You may elect to use your $750 ($1,500 on a joint return) annual exclusion limit by participating in qualified dividend reinvestment plans of more than one utility company.

Share owners should consult their tax advisors for definitive advice'regarding the tax treatment of reinvested dividends.

. USE OF PROCEEDS The net proceeds from the sale of the Common Stock offered hereby will be added to the general funds of the Company and will be used primarily to assist in financing its construction program and.

for general corporate purposes.

The cost of the Company's ccnstruction program during the period.of this offer is expected to

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gx_ceed substantially funds generated internally and the proceeds of the, sale of the Common Stock offered hereby. Accordingly, the Company plans to issue and sell additional securities during the

) period, the types, amounts and timing of which cannot now be determined.. .

INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The Company hereby incorporates in this Prospectus by reference the following documents and information heretofore filed with the Securities and Exchange Commission (" Commission"), to which reference hereby is made: _

1. The Company's Annual Report on Form 10-K for the year ended December 31,1982 (" Form

. 10-K") filed pursuant to Section 13 of the Securities Exchange Act of 1934 (" Exchange Act").

2. The Company's Quarterly Report on Form 10-Q for the quarter ended March 31,1983 filed pursuant to Section 13 of the Exchange Act.

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3. The information under the heading " Description of Common Stock" on pages 7 and 8 of the Company's Prospectus dated March 31,1980 filed pursuant to the Securities Act of1933 under File No. 2 52989, i All documents filed by the Company pursuant to Sections.13(a),13(c),14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to the termination of this offering shall be 1 deemed to be incorporated in this Prospectus by reference and to be a part hereof from the date of I

filing of such documents.

l The Company hereby undertakes to provide without charge to each person to whom a copy of this Prospectus has been deli'/ered, on the written request of any such person, a copy of any or all of the documents referred to above which have been or may be incorporated in this Prospectus by i i reference, other than exhibits to such documents. Written requests for such copies should be directed l  ! to E. Lyle Pepin, Secretary, The Cleveland Electric Illuminating Company, P.O. Box 5000, Cleve-l land, Ohio 44101. ,

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ATTACHMENT 2

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Toledo Eclison . plight .

could delay Perry unit ' .

By James Lawless The speculation also has come from critics of transmission lin.es, Toledo Edison Co. chairman wh argue that the setond unit D John P. Williamson said yesterday needd for pars aner

k. construction on Unit 2 of the %n t its 1988 scheduled completion.be-N Perry nuclear power plant may cause the utilities have much ex-Q bave to be extended to' help his cess e.lectricity.

'I company, which announced a 4 major cost-cutting effort.

"The first unit at Perry hahto N . be completed as quickly as possi-l Toledo Edison, which is part ble," Williamson said, "but the j owner of Perry, announced $11 second unit is the subject of some

million in cuts in its operation'al . discussion."

and maintenance budget, on top William King, a CEI spokes-of $18 million m cuts in 1982. man, said his company had no

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Williamson said as a result of . plans to extend Perry 2

• Toledo Edison's financial prob, construction.

lems, Unit 2 of the Perry plant - Williamson said yesterday as and Beaver Valley nuclear plant many as 100 Toledo Edison em-in Pennsylvania should be re- ' ployes might lose their jobs, the examined to see if they need to utility has frozen salaries for all be built as quickly as scheduled. management employes and cut 12 The twin reactor $5.2 billion 109 executives' salaries 5%.

Perry plant is being built by Its unionized employes will get

- l Cleveland Electric Illuminating. .no pay raise this year, he said.

i Co., which shares ownership with Toledo Edisori has asked 'for a 1 Toledo Edison, Ohio Edison Co. 's73 million rate hike'from PUCO

! and two Pennsylvania utilities. but the PUC0 staff has reconi-Rumors surfaced during the -mended less than half of that be past severalweeks that the second'. granted. Further, the utility may Perry reactor might be' canceled,. . lose its, request for costs from but that was denied flatly by both Perry construction, because the I Toledo Edison and CElspokesman PUC0 staff says Unit I is not

'5% complete.

yesterday. However, Public Utili- .

ties Commission of Ohio Com- Roger Buehrer,a Toledo Edison missioner Alan R. Schriber said spokesman, refused to' speculate I

about an emergency rate bike

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he was asked. this week about a

' l potentialca'ncellation by twoWill;. before the PUC0 acts on the utility's pending rate hike. .

I' Street investors.

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from Cleveland Plain Dealer, June 24, 1983 I i

CERTIFICATE OF SERVICE  !

I This is to certify' that copies 'of the foregoing were served by deposit in the U.S. Mail, fir.st class, postage prepaid, this J-*^ day of July, 1983 to those on the service list below. .

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AW jtf . L- [ Susan L. Hiatt j3 agt G 1983 ' El

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h\' ct!::tctej, ^;j DQIE[

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SERVICE LIST Peter B. Bloch, Chairman Terry Lodge, Esq. .

Atcmic Safety & Licensing Board McCormack, Pommeranz, &

U.S. Nuclear Regulatory Comm. Lodge Washington,'D.C. 20555 824 National Bank Bldg.

Toledo; OH 43604 Dr. Jerry R. Kline Atomic Safety & Licensing Board.

U.S. Nuclear-Regulatory Commission Was'Iington,.D.C.

h 20555 ,

Mr..Glenn O. Bright Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 James 41. Cutchin, IV, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Jay Silberg, Esq.

Shaw, Pittman, Potts, & Trowbridge -

1800 M~ Street, NW

. Washington, D.C. 20036 Docketing'& Service Branch Office of'the Secretary U.S.. Nuclear R'egulatory. Commission Washington, D.C. 20555 Atomic. Safety & Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission -

Washington, D.C. 20555

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