ML20214R338

Response Granting State of Oh Petition to Intervene as Interested State,To Allow Entering Proceeding to Advise Commission on Pending Immediate Effectiveness Review.W/ Certificate of Svc

ML20214R338
Person / Time
Site:	Perry
Issue date:	09/23/1986
From:	Woodhead C NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#386-842 OL, NUDOCS 8609290146
Download: ML20214R338 (12)

Text

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DOCKETED USN"C

'86 SEP 24 P3 :16 UNITED STATES OF AMERICA Jr'

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NUCLEAR REGULATORY COMMISSION BEFORE TIIE COMMISSION In the Matter of )

)

CLEVELAND ELECTRIC ) Docket No. 50-440 OL ILLUMINATING COMPANY, ET AL. ) {

50-441 OL

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE FILED BY Tile STATE OF 01110 Colleen P. Woodhead Counsel for NRC Staff September 23, 1986 0

8609290146 860923 PDR 0 ADOCK 05000440 PDR Nd7

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h UNITED STATES OF AMERICA

, NUCLEAR REGULATORY COMMISSION BEFORE TIIE COMMISSION In the Matter of )

)

CLEVELAND ELECTRIC ) Docket No. 50-440 OL ILLUMINATING COMPANY, ET AL. ) 50-441 OL

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE FILED BY THE STATE OF OHIO l

l Colleen P. Woodhead Counsel for NRC Staff September 23, 1986

I i

I i

! UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION 1*

i l BEFORE TIIE COMMISSION

!o l In the Matter of )

i

)

l CLEVELAND ELECTRIC ) Docket No. 50-440 OL

! ILLUMINATING COMPANY, ET AL. ) 50-441 OL

i )

1 (Perry Nuclear Power Plant, )

j Units 1 and 2) )

I i.

i NRC STAFF RESPONSE TO j PETITION FOR LEAVE TO INTERVENE

! FILED BY Tile STATE OF OHIO I. INTRODUCTION i By Petition for Leave to Intervene dated September 4, 1986 i

j (Petition) , the State of Ohio (Ohio) requested leave to intervene as an l interested State pursuant to 10 C.F.R. I 2.715(c) of the Commission's Rules of Practice. In its Petition Ohio stated that it seeks to preserve i its right to a reasonable opportunity to participate in the Perry licensing j proceedings and to introduce evidence, interrogate witnesses, and advise f

1 the Commission. Specifically, Ohio states its interest in the adequacy of l

l the licensee's offsite evacuation plans , and asks the Commission to i

j withhold the full power license for the Perry Nuclear Power Plant (PNPP) i l until Ohio has reevaluated the plans. Petition at 1. The NRC staff 1

l (Staff) sets out its view of the Ohio petition below, i

i.

II. BACKGROUND i.

i The adjudicatory proceeding to consider issues raised concerning the i

i application for an operating license for PNPP began in 1981 with the I

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l Commission's notice of receipt of application and opportunity for hearing

. published in the Federal Register. O Nineteen parties were initially admitted to the proceeding including Lake County and Ashtabula County, Ohio as 10 C.F.R. I 2.715(c) participants. - Public hearings on the intervenors' issues were held before the Atomic Safety and Licensing 9

Board (Licensing Board) in 1983 and 1985 in Painesville and Perry, Ohio.

A Partial Initial Decision was issued by the Licensing Board in December, 1983 3_/ and a Concluding Partial Initial Decision was issued in September, 1985. O Both initial decisions were appealed by the intervenors and were affirmed by the Atomic Safety and Licensing Appeal Board ( Appeal Board) . 5,/

A Notice of Appeal of ALAB-841 filed by Sunflower with the Commis-sion was subsequently withdrawn. 6,/ A motion for continuance of the Commission's meeting scheduled for September 5,1986 and the issuance of a full power license for PNPP was filed by OCRE on August 26. The i Commission denied the motion by Memorandum and Order dated 1/ 42 Fed. Reg.12372 (February 13, 1981).

-2/ All parties eventually withdrew from the proceeding except Ohio Citi-zens for Responsible Energy (OCRE) and Sunflower Alliance, Inc.

(Sunflower)

-3/ LBP-83-77, 18 NRC 1365. The decision addressed an issue of the quality of construction at PNPP.

-4/ LBP-85-35, 22 NRC 514. This decision addresses issues concerning emergency plans, hydrogen control, and diesel generators.

5/ ALAB-802, 21 NRC 490 (1985); ALAB-841, 24 NRC , sp op.,

July 25, 1986. A motion for reconsideration of ALXB-841 was denied in ALAB-844, 24 NRC ,( Au gust 16, 1986).

-6/ See " Notice of Appeal". August 8,1986 and letter from counsel for Eiiilflower dated September 2,1986.

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i September 4,1986. The Commission held a meeting on September 5,1986

. during which the parties to the adjudicatory proceeding presented their 4

views on the earthquake which occurred in Ohio on January 31,1986 and the Staff and Licensee informed the Commission of matters concerning the operational readiness of PNPP. 1 In addition, representatives of the Ohio Department of liighway Safety and the Public Utilities Commission presented the concerns of the Governor of Ohio regarding the radiological emergency evacuation plans for PNPP.

III. DISCUSSION Ohio has asked to intervene in the Perry adjudicatory proceeding at a very late time. Ah !ndicated, the evidentiary record has been closed I for a year; all appeals of the Licensing Board decisions have been i

decided; and no petition for review has been filed before the Commission.

Thus, the adjudication of the issues admitted for litigation has ended. 8_/

Essentially, it remains only for the Commission to complete its required "immediate effectiveness" review pursuant to 10 C.F.R. I 2. 764 (f) .

Consequently, there no longer exists an evidentiary proceeding in which Ohio could " introduce evidence" and " interrogate witnesses" as an interested State, as sought by the Petition.

i

, -7/ No vote on the full power operating license was taken by the Com-mission in compliance with a restraining order issued by the United States Court of Appeals for the Sixth Circuit.

8/

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The period within which the Commission may act to review ALAB-841 )

was extended until September 29, 1986, the same date the time for i Commission review of ALAB-844 expires. Order, September 2,1986. l

It is well established that once the record is closed, new issues can

. be litigated only if standards for late-filed contentions and reopening the record are met. S! Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant , Units 1 and 2), ALAB-728, 17 NRC 777, 807, review denied, CLI-83-32, 18 NRC 1309 (1983). Also, in order for an interested state to raise issues for litigation, it must comply with the basis and specificity requirements of 10 C.F.R. 5 2.714. Project Management Corporation, Tennessee Valley Authority, Energy Research and Development Administration (Clinch River Breeder Reactor Plant),

ALAB-354, 4 NRC 383, 393 n.14 (1976); Gulf States Ut'ilities Company 9/ Section 2.714 (b) requires consideration of untimely contentions based on a balancing of the five factors set out in 10 C . F . R .

I 2.714(a)(1). The five factors are:

(i) Good cause, if any, for failure to file on time.

(ii) The availability of other means whereby the petitioner's interest will be protected.

(iii) The extent to which _the petitioner's participation may reasonably be expected to assist in developing a sound record.

(iv) The extent to which the petitioner's interest will be represented by existing parties.

(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.

The standard for reopening the record is a tripartite test: (1) Is the motion timely? (2) Does it address significant safety (or envi- 1 ronmental) issues? (3) Might a different result haya been reached I had the newly proffered material been considered initially? Pacific '

Gas and Electric Co. (Diablo Canyon Power Plant, Units 1 and 2),

ALAB-598,11 NRC 876, 879 (1980), cited with approval in Metropol-itan Edison Co. (Three Mila Island Nuclear Station , Unit 1),

CLI-85-2, 21 NRC 282, 285 n.3 (1985). This test has received judi-cial approval. Oystershell Alliance v. NRC, No. 85-1182 (D.C. Cir.

September 9,1986); Three Mile Island Alert, Inc. v. NRC, 771 F.2d 720, 732 (3d. Cir. 1985), cert. denied sub. nom. , Aamodt v.NRC, U.S. (1986). This test has recently been codified in a Com-mission rule , 10 C.F.R. I 2.734. 51 Fed. RS . 19539 (May 30, 1986).

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(River Bend Station , Units 1 and 2), ALAB-444, 6 NRC 760, 768-69 i

these (1977). The State of Ohio's Petition does not address requirements. Consequently, it is not now possible for Ohio to present f' evidence or interrogate witnesses. b In a situation similar to this one, where the State sought to inter-vene pursuant to 9 2.715 after close of record in order to participate in an appeal, the Appeal Board rejected the late peittion on the ground that i the State was not entitled to appeal when it did not participate in the proceeding before the licensing board. However, the State was granted permission to file a brief amicus curiae pursuant to 10 C.F.R. I 2.715(d).

Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, i

Units 1 and 2), ALAB-583, 11 NRC 447, 448-49, ch Colorado Radio l Corporation v. FCC , 118 F.2d '24, 26-27 (D.C. Cir. 1941) and Vermont Yankee Nuclear Power Corporation v. NRDC, 435 U.S. 519, 553-54 (1978). In a recent decision, the Appeal Board stated:

10/ Licensing Boards presiding over evidentiary hearings have routinely admitted interested States and other governmental bodies which filed untimely 10 C.F.R. I 2.715(c) petitions. See Long Island Lighting Company (Shoreham Nuclear Power Station,7 nit 1), LB P-83-13, 17 NRC 469, 471 (1983) (There is no explicit time requirement regarding a filing by .an interested state or municipality pursuant to 10 C.F.R. I 2.715(c) but the participant must take the proceeding as it finds it); C f. Consolidated Edison Co. of New York (Indian Point, Unit No. 2TPower Authority of the State of New York (Indian Point , Unit No. 3), LBP-82-25, 15 NRC 715, 721-22 (1982); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-81-21, '4 NRC 107, 110 (1981) and ALAB-600,12 NRC 3, 8 (1980) (The Governor of California was allowed to intervene by the Licensing Boards after close of record and in evidentiary hearings conducted by the Appeal Board , although untimely) .

But see f.lississippi Power and Light Co. , et al (Grand Gulf Nuclear Power Station, Unita 1 and 2), LBP-82-92,7 NRC 1376 (1982) (A petition filed by the State pursuant to 10 C.F.R. Il 2.715(c) and

, 2.714 after issuance of an uncontested operating license was denied.)

Only aggrieved parties may appeal decisions adverse to them . . . .- A party cannot be legally " aggrieved" for the pur-pose of appealing an adverse decision if it did not 4

meaningfully participate in the process that led to the objectionable decision.

a Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-845 (August 28, 1986), slip op. at 51 (citations omitted).

In summary, since the adjudicatory proceeding in this case has end-ed, if Ohio seeks to litigate issues, the standards set out above would 4 require Ohio to comply with the standards for late-filed contentions in 10 C.F.R. 5 2.714(a)(1) and the tripartite test for reopening the record described in ALAB-598, supra, (now contained in 10 C.F.R. I 2.734).

Or stated differently, given the posture of this proceeding, Ohio cannot now introduce evidence and interrogate witnesses absent the granting c,f a i

motion to reopen the record to admit a new issue in accordance with the requirements in 10 C.F.R. 55 2.714 and 2.734, as described above.

Apart from introducing evidence and interrogating witnesses, Ohio seeks to participate as an interested state under 5 2.715 to " advise the Commission. " Petition at 1. As indicated in Ohio's Petition, recent events have given rise to concerns by the Governor of Ohio over the evacuation plans for nuclear plants in Ohio, b For this purpose, as ,

l explained below , the Commission could permit the State of Ohio to participate in the remainder of the proceeding as a matter of discretion.

! It is well established that when a party or state is permitted to en-l ter a proceeding late, it must take the proceeding as it finds it. Metro--

l 11/ The petition references a letter dated August 15,' 1985 from Governor Celeste to Chairman Zech which stated concerns created by the acci-dent at the Chernobyl Nuclear Plant and the January 1986 earth-quake in northeastern Ohio.

politan Edison Company (Three Mile Island Nuclear Stations, Unit 1),

ALAB-772, 19 NRC 1193, 1246 (1984), rev'd in part on other grounds, o

CLI-95-2, 21 NRC 282 (1985); Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant), ALAB-600, 12 NRC 3, 8 (1980). As previously indicated, although the adjudicatory proceeding has ended, and no opportunity remains for Ohio to present evidence or interrogate witnesses concerning the issues litigated , the Commission has not yet completed its immediate effectiveness review. In this regard, 10 C.F.R 5 2.764(f)(2)(ii) provides that parties may file brief comments with the Commission within 10 days of issuance of the Licensing Board decision, pointing out matters which in their view , pertain to the immediate effectiveness issue. Although the 10 day comment period is long past, the Commission places great value on States' participation in its licensing proceedings. Seabrook , CII-77-25, supra, 6 NRC at 537. Since the Commission's immediate effectiveness review has not yet been completed, the Commission could exercise its discretion b to admit Ohio as as interested state pursuant to 10 C.F.R. 5 2.715(c), enabling Ohio to

" advise" the Commission, as sought by the intervention Petition, pursuant to 10 C.F.R. I 2.764(f)(2)(ii). In this way the Commission may exercise its discretion to permit intervention by Ohio under 5 2.715, even though no opportunity to intervene in an evidentiary proceeding exists at this time.

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12/ In Seabrook, CLI-77-25, supra, the Commission exercised its discretion to permit untimely participation by the Commonwealth of Massachusetts due to unusual circumstances.

l IV. CONCLUSION For the reasons stated above, the adjudicatory proceeding has ended and, therefore, there is no opportunity for the State of Ohio to present evidence or interrogate witnesses. However, the Commission has broad discretion, in light of the great value placed on participation by States in licensing proceedings, to grant Ohio's Petition to intervene pursuant to 9 2.715 as an interested State, allowing Ohio to enter the proceeding as it finds it in order to advise the Commission concerning the pending immediate effectiveness review.

Respect fully sutrnitted, I I &<.] /

Colleen P. W odhead Counsel for NRC Staff Dated at Bethesda, Maryland this 23rd day of Septenber,1986

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DOCKETED USNRC i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '86 SEP 24 P3:17 BEFORE THE COMMISSION 0FFIN O' E 3 f 00;KETih3e. i sVlu-BRI. NC l In the Matter of )

)

CLEVELAND ELECTRIC ) Docket No. 50-440 OL ILLUMINATIhG COMPANY, ET AL. ) 50-441 OL

)

(Perry Nuclear Power Plant, )

Units 1 and 2) )

CERYlFICATE OF SERVICE i I hereby certify that copics of "NRC STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE FILED BY THE STATE OF OHIO" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 23rd day of September,1986:

• Samuel J. Chilk

• William C. Parler Secretary of the Commission General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

• Dr. Jerry R. Kline James P. Gleason, Chairman Administrative Judge Administrative Judge Atomic Safety and Licensing Board 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, MD 20901 Washington, DC 20555

• Mr. Glenn O. Bright Donald T. Ezzone, Esq.

Administrative Judge Assistant Prosecuting Attorney Atomic Safety and Licensing Board 105 Main Street ,

U.S. Nuclear Regulatory Commission Lake County Administration Center Washington, DC 20555 Pdnesville, OH 44077.

Jay Silberg, Esq. Susan Hiatt Shaw, Pittman, Potts and Trowbridge 8275 Munson Road 2300 N Street, NW _

Mentor, OH 44060 Washington, DC 20037

• Atomic Safety and Licensing Board Terry J. Lodge, Esq.

U.S. Nuclear Regulatory Commission 618 N. Michigan Street, Suite 105 Washington, DC 20555 Toledo, OH 43624

John G. Cardincl, Esq. Janine Migden, Esq.

Prosecuting Attorney Ohio Office of Consumers Counsel Ashbabula County Courthouse 137 E. State Street Jefferson, OH 44047 Columbus, OH 43215

_o

• Atomic Safety and Licensing Appeal Anthony J. Celebrezze, Jr.

Board Attorney General of Ohio v.S. Nuclear Regulatory Commission Sharon Sigler Washington, DC 20555 Assistant Attorney General 30 E. Broad Street,17th Floor

• Docketing & Service Section Columbus, OH 43215 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555

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ku . t' 1 Colleen P. Woodhead Counsel for NRC Staff

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