ML20050E287
| ML20050E287 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 04/05/1982 |
| From: | Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8204130204 | |
| Download: ML20050E287 (9) | |
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~"' April 5, 1982 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.Before the Atomic Safety and Licensing Appeal Board
)
In the Matter of 1
)
CLEVELAND ELECTRIC ILLUMINATING
)
Docket Nos. 50-440 50-441
)
COMPANY, et-al.
)
(Perry Nuclear Power Plant,
)
(Operating Lic A
Units 1 and 2)
)
C dCRE RESPONSE TO APPLICANTS, g
RECER'5D MOTION FOR DIRECTED CERTIFICATION gpg 7 219829* 2.
"lDW?SUl? O I
s E:
gs Pursuant to 10 CFR 2.730(c), Intervenor Ohio Cit ' "/
3 for Responsible Energy ("0CRE") hereby files its reply t i l ;d ' '
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the Applicants' Motion for Directed Certification of the Licensing Board's Memorandum and Order of March 3, 1982.
I.
INTRODUCTION l
In its March 3,1982 Memorandum and Order, the Atomic Safety.and Licensing Board (" Licensing Board") granted in part Intervenor Sunflower Alliance, et al. 's (" Sunflower")
motion to resubmit its contention on hydrogen control.
Sunflower originally submitted the contention in its March 15, 1981 Petition for Leave to Intervene.
The contention
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was not at first admitted into this proceeding because it
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did not meet the requirements of Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 1), CLI-80-16,
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11 NRC 674 (1980) ("TMI-1").
Sunflower resubmitted the
- contention, with the credible accident ' scenario required by TMI-l on January 8. 1982, offering as good cause for late 8204130204 820405 PDR ADOCK 05000440 Q
filing the final rule on interim hydrogen control require-ments (46 FR 58484, December 2, 1981) which did not address Mark III containments.
The Licensing ~ Board admitted this contention to the extent that it addressed the Applicants' hydrogen control systems, namely, the manual operation of recombiners.
On March 23, 1982 the Applicants moved the Atomic Safety and Licensing Appeal Board (" Appeal Board") to direct the Licensing Board to " certify to it for immediate appellate review that portion of the Memorandum and Order admitting the hydrogen control contention" (Motion at 1).
The Applicants also requested that the Appeal Board reverse the Licensing Board's Order and thus deny Sunf1cwer's motion to resubmit the contention.
II. APPLICANTS HAVE NOT MET T:iE STANDARD FOR DIRECTED CERTIFICATION OCRE notes that tne Applicants' motion constitutes an interlocutory appeal, which is prohibited bf 10 CFR 2.730(f) in the absense of compelling reasons.
Although the Appeal Board does have the authority to direct the Licensing Board to certify an order to it for interlocutory appellate review, if this too is to be done only strict standards have been met.
j Interlocutory review is permitted only when a ruling
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either (1) threatens the party adversely affected by it with immediate and serious irreparable impact, which cannot be practicably corrected by a later appeal; or, (2) affects the basic structure of the proceeding-in a pervasive or unusual m
manner (Public Service Co. of Indiana (Marble Hills, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977)). This case meets neither test.
Obviously, the mere admission of a contention into a proceeding can in no way threaten the Applicants with immediate and serious irreparable impact.
Nor does the Licensing Board's March 3 ruling affect the basic structure of the proceeding in a pervasive or unusual manner.
Even if the Applicants' allegations were true (which they are not), this one ruling would not constitute a per-vasive alteration of the basic structure of the proceeding.
The entire record should be examined for evidence of pervasion.
No such evidence exists.
Rather, the record shows that the Licensing Board has upheld the spirit of Douglas Point (infra) and 10 CFR 2.758.
In fact, two contentions proposed by OCRE were rejected on these principles.
OCRE's Contention 14, on electromagnetic pulse, was construed to be an impermissible challenge to 10 CFR 50.13.
OCRE's motion for the waiver of 10 CFR 50.13 was likewise denied.
The Licensing Board declared this to be a generic issue and suggested rulemaking as a more appropriate forum.
Similarly, OCRE's Contention 15, on nuclear waste disposal / storage, was rejected because of the ongoing rulemaking.
i Thus, contrary to the Applicants' allegations, the record reveals that the Licensing Board does not misunder-stand its relationship to the rulemaking process (Motion at 1
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10), disregard rules and legal principles, or place into doubt as to every issue the significance of NRC regulations and authority (Motion at 9).
No evidence is seen of a per-vasive undermining of the proceeding's basic structure.
Nor has there been any unusual effect on the integrity of the proceeding, When examined in the light of the situation, the Licensing Board's Order is not unusual or irregular.
III.
DOUGLAS POINT DOES NOT APPLY TO THIS SITUATION The Applicants claim that any contention that is, or is about to become, a subject of rulemaking, should not be admitted to a licensing proceeding, citing as authority Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79 (1974) (" Douglas Point").
However, the Applicants fail to note the differences between Douglas Point and this proceeding.
First, Douglas Point dealt with the environtental effects of the uranium fuel cycle, which was the subject of a concurrent rulemaking.
This rulemaking included the Commission's specific prohibition of case-by-case litigation of this issue (37 FR 24191, November 15, 1972).
No such prohibition was included in the proposed interim rule on hydrogen. control (46 FR 62281, December 23, 1981).
The applicability of the Douglas Point decision to other issues was recently addressed by the Licensing Board in the et Comanche Peak proceeding, Texas Utilities Generating Co.,
(Comanche Peak Steam Electric Station, Units 1 and 2),
al.
Here, the Licensing Board ruled that since Douglas Point involved the specia'l circum-stances of a rulemaking in which the Commission explicitly stated that the issue was not to be litigated in individual licensing proceedings, the decision could not be applied to other issues where the Commission's explicit instructions are lacking.
Secondly, the subject matter of Douglas Point (environ-mental effects of the uranium fuel cycle) is truly a generic issue that is most appropriately addressed by the rulemaking process.
However, hydrogen control in Mark III containments is not a generic issue, as is apparent from an examination of the proposed rule (46 FR 62281).
The rule would not require all Mark III BWRs to be modified identically; rather, "the particular type of hydrogen control system to be selected is lef t to the discretion of the applicant or licensee" (p. 62281).
Licensees / applicants have a choice of dissimilar hydrogen control systems for Mark III plants.
E.g.,
Grand Gulf's applicants have proposed a distributed igniter system (Grand Gulf Safety Evaluation Report, NUREG-0831, p. 22-16).
The proposed rule mentions post-accident inerting as a possible hydrogen control measure for Mark III plants.
Obviously the proposed rule is not. a generic resolution of the hydrogen control problem in Mark III BWRs.
Plant-specific litigation of this issue is therefore appropriate.
The Douglas Point decision should only be applied to other cases within the context of its own particular issue,
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1 i.e.,
the uranium fuel cycle.
The situation here is so entirely different that Douglas Point cannot be invoked as authoritative precedent.
IV.
THE APPLICANTS ARE ATTACKING THE LICENSING BOARD'S AUTHORITY The Applicants argue that the Licensing Board has ruled incorrectly in admitting the hydrogen control contention, claiming that Sunflower had met neither the " credible accident scenario" requirement of TMI-l nor the " good cause" requirement of 10 CFR 2.714(a)(1) for late filing.
The Applicants have every right to disagree with the Licensing Board's decision; however, mere disagreement does not grant them the right to an interlocutory appeal.
The Applicants' motion for directed certification constitutes an attack upon the Licensing Board's authority.
The TMI-1 decision declared that hydrogen control may be litigated under 10 CFR Part 100 "if it is determined that there is a credible loss of coolant accident scenario entailing hydrogen generation, hydrogen combustion, containment breach or leaking, and offsite doses in excess of Part 100 guideline values" (TMI-1 at 675).
However, this decision includes no guidelines or criteria for determining whether an accident scenario is or is not credible.
Therefore, this determination must be left to the Licensing Board's discretion.
In this 1" ce the Licensing Board decided that Sunflower had met the test; it is within the Board's authority to determine this.
Similarly, the Licensing Board determined that Sunflower had met the " good cause" requirements for late w -
-7 filing; again, this is the Bourd's prerogative.
The Applicants, of course, are not pleased with this decision.
By requesting directed certification of the Licensing Board's March 3 Memo-randum and Order, the Applicants are attempting to undermine i
the Licensing Board's authority.
If this motion is granted, the way will have been paved for the continual challenge of the Licensing Board's authority.
This authority is necessary for the just and rational conduct of this proceeding.
Granting the Applicants' motion would jeopardize the basic structure of the entire proceeding by placing into doubt the validity of each and every Licensing Board order.
V. CONCLUSION OCRE believes that the Applicants' allegations of the impropriety of the Licensing Board's rulings are totally unfounded.
The Applicants' complaints are unsubstantiated, as an examination of the record will clearly show. For precedent and authority the Applicants invoke Douglas Point, which has been cited totally out of context.
Most importantly, the requirements for directed certifi-cation have not been met. As the Applicants admit, the Appeal Board is reluctant to direct the certification of a Licensing Board order, and with good reason: this means of obtaining interlocutory appeal could easily be abused, allowing parties to continually appeal each and every Licensing Board order which is not to their liki~ng, thereby undermining the Licensing Board's authority and unnecessarily delaying the proceeding.
g-I For the foregoing reasons, OCRE requests that the Appeal Board deny the Applicants' motion for directed certification of the Licensing BoardJs Memorandum and Order of March 3, 1982.
Respectfully submitted, W
m.
Susan L. Hiatt OCRE Interim Representative 8275 Munson Rd.
Mentor, OH 44060 (216) 255-3158 J
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CERTIFICATE OF SERVICE Tnis is to certify that copies of the foregoing OCRE hESPONSE TO APPLICANTS' MOTION FOR DIRECTED CERTIFICATION were served by deposit in the U.S. Mail, first class, postage prepaid, this fiM day of April, 1982 to those on the Service List below.
W] W Susan L. diatt SERVICE LIST l
Peter B. Bloch, Chairman Gary J. Edles Atomic Safety & Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Comm'n Appeal Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline Washington, D. C.
20555 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Comm'n Daniel D. Wilt, Esq.
Washington, D.C.
20555 7301 Chippewa Rd.
Frederick J. Shon Atomic Safety & Licensing Board U.S. Nuclear Regulatory Comm'n Washington, D.C.
20555
'I Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Comm'n Washington, D.C.
20555 James Thessin Esq.
Office of the $xecutive Legal Director U.S. Nuclear Regulatory Comm'n Jay Silberg, Esq.
1800 M Street, N.W.
Washington, D.C.
20036 Christine N. Kohl, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 m