ML20099L365

Motion for Directed Certification by ASLB Re 850313 Order Denying Summary Disposition of Issue 16 Re Tdi Diesel Generators & Ohio Citizens for Responsible Energy 850211 Request to Participate in Hearing.Certificate of Svc Encl

ML20099L365
Person / Time
Site:	Perry
Issue date:	03/15/1985
From:	Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#185-143 OL, NUDOCS 8503200572
Download: ML20099L365 (8)

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Moren 15, 1985 USNRC'

'83 IOV 20 A11 :}9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION' gegcc Before the Atomic safety and Licensing Appeal Bbo r o .

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In the notter at )

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THE CLEVELAND ELECTRIC ) D.o c k e t' Nos. 50-440 OL ILLUMINATING CO. ET AL. ) 50-441 OL

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(Perry Nuclear Power Pione, )

Units 1 and 2) )

NOTION FOR DIRECTED CERTIFICATION I. INTRODUCTION On February 11. 1985 Intervenor Ohio Citizens for Responsible Energy (*0CRE') moved the Licensing Board to oppoint as o Board Uitness on Issue Hi6 (on Transomerico Delaval diesel g e n e r a t o r Jr e 1 i,o b i'li t y ) Mr. George Dennis Eley of Ocean Fleets v.

Services. Mr. Eley testified on diesel generator reliability at 7

ene Shorehom proceeNing. OCRE would' sponsor Hr. Eley as OCRE's witness but for financial lock. Citing due process, the-need for administrative proceedings to be decided on a full ond complete record,-and the NRC's policy in Consumers Power Co.

(Midiond Plant). ALAB-382. 5 NRC 603. 607 (1977), OCRE osked the Board to oppoint Mr. Eley as its own witness.

Applicants and Stoff resrondad to OCRE's Motion, and OCRE sought leave to reply to Applicants' response.

On Horch 13. 1985 the Licensing Board issued a confirmatory Order announcing sts decisions with regard to this motion ond

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8503200572 850315 PM ADOCK 05000440

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4, motions for summary disposition of oil the issues in this proceeding. No reasoning w'os,given for Ony of the rulings on s

explanation is to be filed *ot a subsequent dote,' In'the March is 13 Order, the Licensing Board denied Applicants' motion for ,

summor9-disposition of Issue #16 and also denied OCRE's February i.

11 motion seeking the oppointment13f Mr. Eley as o Board Witness ,

on that issue, Because this action violates OCRE's rights to due process by making-meaningful porticipation in the hearing on Issue M16 I impossible, OCRE hereby moves that the Appeal Board direct the Licensing Board, pursuant to 10 CFR O.718(i):

i 1, to provide a written explanation of its decision denying i

OCRE's February 11 motions O. to certify to the Appeal Board for immediate oppellote review

. the Licensing}Boch,d'sdecision (and explanation for some)

L cenying OCRE's one motih'ni '4 i

' 3 .' to continue thot" Port of the proceeding pertaining to Issue W16 pending the Appeal' Board's disposition of-the instant motion.

OCRE otso respectfully requests that the Appeal Boord

{ reverse the Licensing Board's Order-denyingLOCRE's February _11

Motion, ,,

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j II. STANDARDS FOR DIRECTED CERTIFICATION Directed certification-is granted only when the Licensing Board's ruling either (1) threaten; the porty adversely ofrected A

with immediate and serious irreparable harm which, os o. ,

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_3 Practical matter, connot be 011 evicted by o later oPPeal, or (2) offects the basic structure of the Proceeding in o pervasive or unusual manner. Houston Lightins and Power Co. (Allens Creek Nuclear Generatins Station), ALAB-635, 13 NRC 309 (1981); Public

_5ervice Electric and Gas (solem Nuclear Generatins Storion, Unit 1), ALAB-588, 11 HRC 533 (1980); Public Service Co. of Indsono (Morble Hill Nuclear Generottns Storion, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977).

A party seeking directed certification under 10 CFR 2.718(i) must establish, at a mininum, that a referrol under 10 CFR 2.

(f) would have been proper; i.e., that a failure to resolve the problem will cause the public interest to suffer or will result in unusuoi deloy and expense. Puerto Rico Unter Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-361, 4 NRC o25 (1976); To'ledo. Edison Co. (Davis-Besse Nuclear Power storion), ALAB-50Q 2 NRC 750 (1975).

1 All three standards are met herein. First, the Licensing Board's action threatens OCRE With irreparable harm that cannot be alleviated by o' later oppeal. As explained fully in OCRE's February 11 motion, oppointment of Mr. Eley as a Board uztness .

on Issue N16 is necessary to provide OCRE with due process. Due process of low is guoronteed to every litigant by the Fifth Amendment to the Constitution. Note that 'there con be no comprcmise Cof the right to due process] on the footing of conventence of expediency, or o notural desire to be rid of horossini delay. . . ' Ohio Bell Telephone Co. v. Public ~

Utilities Commission, 301 U.S. 292, 204-5 (1937) (Cordoro, J.).

Due process requires that porties be heard 'ot a meaningful time and in a meaningful manner.' Armstrong v. Monco. 380 U.S.

545, 552 (1965). See also Zotos International v. Kennecy, 460 F.Supp 268, 274 (D.D.C. 1978) ("The essence'of due process is the requirement that 'o Person in Jeopardy of serious loss [be given] notice of the case osoinst him and the opportunity to meet it quoting Mothews v. Eldridge-404 U.S. 319, 324 (1976),

and Walter Holm & Co. v. Hardin, 449 F.2d 1009, 1016 (D.C. Cir.

1971)- ("What counts is'the reality of on opportunity to submit on effective presentation to assure that [the decisionmokers]

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will take o hard look at the problems.'

Without the relief requested in OCRE's February 11 Motion, meaningful porticipation in the hearing on Issue M16 will be impossible. Qith yt the ability to submit on effective presentation wh[dh +'on ofrect the outcome of the decision, due y!

l process is locking.lj Indeed, the denial of the right td present b

evidence and to summon witnesses of a party's choice constitutes denial of due process. '

Union Bog-Comp Paper Corp. v. FTC, 233 F.Supp 660, 666 (SDNY. 1964).

I It must oiso be noted that OCRE relied heavily-en the eestimony of inter olio, Mr. Eley, in the Shorehom proceeding in opposing Applicants, motion for summary disposition of Issue i

N16. See 'OCRE Response to Applicants' Motion for Summary Disposition of' Issue 16", filed Februory 27, 1985, esPecially~

Exhibits 25, 29. 33. .ond 54 It ss inherently unfo2r eo'eeny T T

Summary disposition of on issue and also to prevent the oppearance at the heat.*g of the witness on which the intervenor*s showing that genuine issues of fact exist relied.

'The courts hoVG held that denial of due process constitutes irreparable-horm. See Heublein. Inc. v. FTC, 539 F.Supp 123, 128'(D. Conn, 1982) Fit:gerold v. Hompton, 467 F.2d 755 ( D .'C .

Cir, 1972) Amos Treat G Co. v. SEC, 306 F.2d 260 (D.C. Cir 1962). 'This injury connot be olleviated by a later oppeals'the cases cited demonstrate that when fundamental constitutional rights are violated, o party is not required to wait for oppellote review, Rother, irreparable injury is established when on eggregious due process violation is documented. ComPore

- Armstrong v.'Monzo, which held that the ability to challenge on order ofter it hos been issued is not a substitute for on i i opportunity td[ congest t

its entry, ,

4, i Thus, the f i r s ,t howing, thot'of irreparable Sorm,.has been met. The second, alternative showing is also met. The essence q

of the Licensing Board's decision is that it is not interested in hearing the facts on IS$ue M16, at least not any facts 4

different from those proffered by Staff and Applicants. Since it i s the. Licensing Board's Job to hear all.the facts, and to decide the issues based on a full and complete record (see

' Scenic Hudson Preservation Conference v. FPC, 354 F.2d 609, 612 (2nd Cir, 1965) and other cases cited in OCRE's February 11 Motion), on unwillingness of the Board-to perform its job

- constitutes a pervasive ond unusual.olteration of the bos'ic a

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l structure of the proceeding.

Finally.-the public interest will suffer if a heoring is

, held on' Issue M1'6 without the testimony of Mr. Eley. It is the

'NRC's responsibility to protect the Public interest, and in this proceeding, that responsibility has been delegoted to the Licensing Board. See Scenic _ Hudson, supro, and the discussion at:p. 8 of'OCRE's February 11 Motion. The Licensing Board does not serve the public. interest by proceeding with on unfair hearing and limiting the record to evidence rovorable to .

Appliconts.

Applicants will no doubt argue that they will be irreparably hormed and will suffer unusual delay and. expense if the instant motion is granted. Such arguments must be' ignored. The only

" harm' they will suffer is that of litigation expense, which is nor ' i r r e p a r o'b'l e '. h a r m . " Consumers Power Co. (Midland Plant, 4

Units 1 and 2), AL -395, 5 NRC 772, 779 (1977). Of course, any claims that heoring]this matter will delay the' Perry fuel lood

• date and thus cause* Applicants to incur additional costs are srrelevant. Power Reactor Development Corp. v. International Unions. 367 U.S. 396, 415 (1961) (holding that the Commission i~ may not consider on opplicont's financial investment in. deciding cases.) ..

Compare Varmont Yankee _ Nuclear Power Corp. (Vermont Yankee Nuclear Pouer Storion). ALAB-124.-6 AEC 358. 365 (1973) (delay in OL issuonce due to unresolved safety problems' demonstrates

'that the system is working properly,-and delay is mandateo i

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because the facility is not sofe-to operate.)

III. CONCLUSION The Licensing Board's unexplained Order denying summary disposition-;of Issue M16 and also denying OCRE on opportunity to ,

J porticipate-in the heoring on that issue in a meaningful manner, by denying OCRE's request that Mr. Eley be opPointed as o Board i

' Witnessi' constitutes a violation of OCRE's right to du.e process.

The Order 15.0150 i llogical,'unfoin, contrary to the public interest, and antithetical to the Licensing Board's obligotion .

1 to decide the issues on the basis of a full and complete record, i

The stondords for directed certification are thus met, and t

CCRE.is entitled to the relief sought, OCRE proys the Appeal Board is so moved.

f, g Respectfully submitted,

?fukl! ,

yA < - 4 Susan L. Hiatt OCREERepresentative 8275 Munson Re, Mentor, OH 44060 (216) 055-3158 ~

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CERTIFICATE OF SERVICE  ;

'h'b E4 20 AH :19 This.is to certi'fy that copies of the foregoing were served by~ ~

dep/f osgi in day the of U.S.8/hecN Mail, first class, postage 1986 toqpepaid,g.this,, thnsefonfthd9ni

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i, SueCE sbrvice list below.

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Susan L. Hiatt

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- SERVICE. LIST ,

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[ Terry Lodge, Esq.

JAMES P. GLEASON, CHRIRHAN 618 N. Michigan St.

. .\AToHIC 5AFETY & LICENSING BOARD 513 GILHOURE DR.

SILUER SPRING, MD 20901 l-  ! Suite 105 I .; Toledo, OH 43624 6

Dr. Jerry R..Kline Atomic Safety..& Licen. sing Board.

U.S. Nuclear. Regulatory Commission i-WasEington,[D.C. 20555 '

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f Mr.. Glen $.N'fBright 0

• Atomic Saf ,,y &. Licensing Board U.S. Nuclear, Regulatory Commission Washington,GD.C. 20555

-Colleen P.'Woodhead, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission .

Washington, D.C. 20555 y

Jay.Silberg, Esq.

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. Shaw, Pittmah, Potts, & Trowbridge 1800 M Street, NW

. Washington, D.C. 20036

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Docketing&. Service ~ Branch

.0ffi'ce of'the. Secretary '

U.S.. Nuclear Regulatory. Commission washington, D.C. 20555 Atomic.S'afety.&, Licensing Appeal. Board Panel U.S. Nuclear Regulatory Commission  !

Washington,1D.C. 20555  :

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