ML20011A226

Brief Supporting Admissibility of ATWS Contention.Aslb 810929 Order Suspending ATWS Contention Should Be Vacated. Sunflower Alliance Has Filed All Papers When Due & Has Obeyed Board Orders.Proof of Svc Encl

ML20011A226
Person / Time
Site:	Perry
Issue date:	09/29/1981
From:	Wilt D SUNFLOWER ALLIANCE, WILT, D.D.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8110080329
Download: ML20011A226 (4)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION p. M~

i Before the Atomic Safety and Licensing ar@CT; 5 jg8[ p Of8cetfdsSeetrary ~II

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In the Matter of  % p CLEVELAND ELECTRIC ILLUMINAT O mb COMPANY, Et al.

[Q Q)PiMN gL,Q L J ket Nos. 50-4 (Perry Nuclear Power Plant, 3 Ol)T T 8%7eratingLNNe) va)"$f[ & prember 29, 1981 Units 1 and 2)

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\ N ms (Si\ M Sunflower Alliance Brief on Admissibility of ATWS Contention and Motion to Vacate Order of September 9, 1981 Part One: Brief on Admissibility of ATWS Contention Applicant has argued that a proposed rule making proceeding prohibits this Board from admitting as a contention the ATWS contention. The proposed rule makingitself con-tains no express prohibition against the Board's consider-ation of tais matter. 46 F.R. 10501 (1981) and 45 F.R. 73080 (1980). Presumably, had the Commission desired to prohibit Licensing Boards from censidering this issue, it would have said so.

It is well established that a federal agency has discretion to establish policy either by rulemaking or by adj udication . Securities Exchange Conmission vs. Chenery Corp.,

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332 U.S. 194 (1947). Thus an Agency has the right:

...to determine in what order, in what forum, and by what procedures it will tackle a complex subject matter...

Natural Resources Defense Council vs.

N.R.C., 539 F2d 824,838 (2nd Cir.,1976)

' vacated and remanded, 434 U.S. 1030 (1978).

A Court has no power to direct how an Agency may proceed either by adjudication or by rule making. Natural Resources Defense Council vs. N.R.C., 582 F2d 166, 173 (2nd Cir.,1978).

Since the Commission is silent, this Board is free to pursue the issue. As the Appeal Board has said:

As far as individual licensing proceedings 1 were concerned, the Commission decided to leave it to the presiding boards to determine whether there was a need for ' deferral of future licensing actions which are related

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to the widescale use of mixed oxide fuels...

Barnwell Nuclear Fuel Plant Separations Facility,

. . ALAB-296 (1975).

Clearly this Bourd has the.right to proceed with the ATWS contention. To de otherwise is to abandon the responsibility granted to it by the Commission. Surely this Board does not intend to abandon its responsibilities.

Sunflower Alliance joins with OCRE as to parts II and.III of OCRE's brief filed August 8, 1981.

For these reasons, Sunflower Alliance urges the

. Board to admit as a contention the ATWS issue.

Part. Two : Motion to Vacate Order of September 9, 1981.

In its order of September 9, 1981, this Board suspended the ATWS issue presumably until the Commission determines what to do with it. This in itself is clearly wrong as Sunflower has shown in Part one of this Brief.

The real problem, though, is the the Board suspended the issue and it then permits Sunflower Alliance to file its brief in support of the contention. Obviously, this Board determined the issue and only then decided to permit Sunflower Alliance the right to file its brief. This action of the Board violates.every rule of due process of law that has ever existed in this Country.

The essence of due process of law is the require-ment that individuals be free from arbitrary action on

.the part of government. Wolff vs. McDonnell, 418 U.S. 539,558 (1974). An agency created by federal law is subject to the restraints of the due process clause of the 5th Amendment.

16A Am Jur 2d, 823, Constitutional Law, Pg 1004. Thus, this Board is required by the United States Consitution to grant Sunflower Alliance the opportunity to be heard before the issue is decided. Armstrong vs. Manzo, 380 U.S. 545,552 (1965).

oince this Board has refused Sunflower Alliance the right to respond, it is guilty of a due process of law violation which is reversible error.

The undersigned would like to remind this Board of the facts. Originally, the Board itself asked for briefs on the admissibility of the ATWS issue. OCRE responded.

Sunflower Alliance was going to respond but due to the ill-ness of the undersigned a request for an extension of time was filed. Much to my surprise, the Applicant objected.

More importantly, this Board denied Sunflower's request.

Needless to say, the undersigned objected. The Board then suspended the issue and then gives Sunflower Alliance the

~:ight to respond.

There is no legal reason to suspend this issue.

No one knows t hat, if anything, the Commission will do on this issue. The Commission is not operating under any time schedule. Sunflower Alliance is. Since there is no pro-hibition as far as the ATWS issue is concerned, Sunflower i

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-Alliance urges that the issue be permitted as a contention and that discovery proceed and that the due process of law violation be cured.

Finally, the undersigned resents the suggestion

-made by this Board that Sunflower Alliance has not filed papers when due. Sunflower filed an amended list of contentions as.-well'as a Special Prehearing Conference,Brief. Both these documents were filed within the time required by this Board.

To state otherwise, is wrong and imoroper. The Special Prehearing Conference Brief may not have been in the form that the Board expected. This was due to a lack of familarity by the under-signed with N.R.C. proceedures not disobedience of orders as suggested by this Board.

Respectfully submitted,

! /A A C .A N '

Dg6i'el D. Wi1Lt , Esq. '

Xttorney for Sunflower Alliance et al 7301 Chippewa Rd.

Brecksville, Ohio 44141 (216) 526-2350 Proof of Service:

The undersigned certifies that a copy of this

.Brief on the Admissibility of ATWS Contention and Motion to Vacate Order of-September 9, 198g o all. persons on the attached service list on this mI v

day of September, 1981.

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l6v , x, li Daniel D. Wilt, Esq.

At/ torney for Sunflower Alliance et al

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F l SERVICE LIST Peter B. Bloch, Chairman Dr. Jerry R. Klein Atomic' Safety & Licensing Board Atomic Safety & Licensing Board Nuclear Regulatory Commissi,on Nuclear Regalatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Frederick J. Shon Jay Silberg, Esq.

Atomic Safety & Licensing Board 1800 M Street N.W.

Nuclear Regulatory Commission Faahington, D.C. 20036 Washington, D.C. 20555 Donald T. Ezzone, Esq. Daniel J. Herron, Esq.

Assistant Prosecuting Attorney Assistant Prosecuting Attorney 105 Main Street Ashtabula County Courthouse -

Painesville, Ohio 44077 Jef ferson , 0.:' o 44047 Tod J. Kenney Jeff Alexander 228 Soouth College St. Apt. A 920 Wilmington Ave.

Bowling Green, Ohio 43402 Dayton, Ohio 45420 Terry Lodge, Esq. ~

Robert Alexander 915 Spitzer Blds. 2030 Portsmouth St. Apt. 2 Toledo, Ohio 43604 Houston, Texas 77098 Atomic Safety & Licensing Appeal Board Docketing & Service Section Nuclear Regulatory C6mmission Office of the Secretary Washington, D.C. 20555 Nuclear Regulatory Commission Washington, D.C. 20555 Charles Barth, Esq.

Nuclear Regulatory Commission Washington, D.C. 20555

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