ML20069N855
| ML20069N855 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 12/03/1982 |
| From: | Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, NUDOCS 8212070196 | |
| Download: ML20069N855 (10) | |
Text
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00CKDE@ ember 3, 1982 U? =
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0 gig @Qf Nj :18 Before the Atomic Safety and Licensing Appeal Board
-(y epr y-p
)
In the Matter of
)
CLEVELAND ELECTRIC ILLUMINATING
)
Docket Nos. 50-440 50-441
)
COMPANY, et al.
)
)
(Operating License)
(Ferry Nuclear Power Flant,
)
Units 1 and 2)
OHIO CITIZENS FOR RESPONSIBLE ENERGY RESPONSE TO APPLICANTS' " MOTION FOR DIRECTED CERTIFICATION OF THE LICENSING BOARD'S MEMO-haNDUM AND ORDER OF OCTOBER 29, 1982" I.
Introduction On November 18, 1982 Applicants moved the Atomic Safety and Licensing Appeal Board (" Appeal Board") to direct the Atomic Safety and Licensing Board (" Licensing Board") to certify to it for immediate appellate review the portion of the Licensing Board's October 29, 1982 Memorandum and Order (Concerning Ohio Citizens for hesponsible Energy's Late-Filed Contentions 21-26) admitting contentions on turbine missiles, in-core the nmocouple s, and steam erosion.
Applicants request i
tnat the appeal Board reverse the Licensing Board's Order and l
deny tr.e admission of these contentions.
Intervenor Ohio Citizens for hesponsiole EnerEy ("0CRE"), in accordance with 10 CFR 2.730(c), hereoy files its response opposing Applicants'
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Motion.
]C 8212070196 821203 05000440 y
{DRADOCK PDR
l II.
Applicants Have Not Met the Standard for Directed Certification Applipants again come before the Appeal' Board seeking interlocutory review of a Licensing Board Order admitting
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_1/
late-filed contentions.
As Applicants amply indicate, in-
_.2/
terlocutory review under sucn circumstance is not favored.
Directed certification is to be used only in the most
" exceptional circumstances"- (Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-382, 5 NRC 603 (1977)) and is
' granted "most sparingly" (Pacific Gas and Electric Company, Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-514, 8 NHC 697 (1978)).
At a minimum, a party seeking directed certification must establish that, without immediate appellate review, the public interest will suffer or unusual delay or expense will be encountered.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271,1 NRC 476 (1975). The particular standards for directed certification
_1/ On March 23, 1982, Applicants moved for directed certifica-tion of the Licensing Board Order admitting a contention on hydrogen control.
The Appeal Board denied Applicants' motion in ALAB-675, 15 NHC 1105 (1982).
_2/ It should especially be noted that the appeal Board does not favor certification on the question of whether a con-tention should have been admitted into the proceeding.
Project Manacement Corporation (Clinch River Breeder heactor Plant ), A1AB-326, 3 NHC 406 (1976).
Sec also Duke Power Company (Catawba Nuclear Station, Units 1 and 2), aLAB-667 (August 19, 1982), slip op. at 4-6.
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the are that tne ruling in question either (1) threatens party adversely affected with immediate and serious ir-which, as a practical matter,.;ould not reparable ' impact, basic be alleviated by a later appeal or (2) affects the l manner.
structure of the proceeding in a pervasive or unusua ting Public Service Company of Indiana (Marble. Hill Nuclear Genera Applicants' Station,: Units 1 and 2), ALAB-405, 5 NRC 1190 (1977)..
Motion meets none of these criteria.
l The circumstances of this proceeding are not exceptiona.
- ding, Only fifteen issues have been admitted into this procee 10, and 11 have either oeen dismissed or
_3/
and, since Issues 2, This is not withdrawn, only twelve issues require litigation.
the schedule for Furthermore, an unusual or unwieldy number.
5, 6, 7, and 9 hearing these issues is such that Issues 3, 4, (See the Licensing Board's will be decided within a few months.
b 16, Memorandum and Order (Concerning Scheduling) of Septem er for February evidentiary hearing on these issues is set 1982; Thus, the thri; contentions in question, along with 15, 1983.)
i Issues 1, 8, and 12, will be litigated at some future hear ng, The deferment of Issues the date for which has not been set.
1 and 8 from this first hearing session was at Applicants _
l 13, 1982 conference (See Transcript of the august request.
additional call at 736 and 754.)
The litigation of these Motion at 3) that "there are now d itted (Applicants' more late-filed contentions to be litigated than a m
_3/ The statement Seven contentions which were timely filed" is erroneous.
l Prehearing contentions were admitted following the SpeciaOnly six late-file (LBP-81-24, 14 NRC 175).
Conference contentions require litigation.
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contentions will not adversely affect either the conduct of this proceeding or the interests of any party.
Since an.ad-ditional nearing session will be required later anyway, Ap-plicants' complaints of unusual delay and/or expense caused by the litigation of the three contentions in. question would
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seem unfounded.
Applicants might instead consider the delay
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wrought by their untimely appeal.
Indeed, the public interest will suffer if important safety issues are not litigated.
The Appeal Board has held that the delay in the operation of a nuclear facility is unimportant (and may even be proper) when an intervenor raises significant safety issues.
Vermont Yankee Nuclear Power Corporation (Ver-mont Yankee Nuclear Power Station), ALAB-124, 6 AEC 358, 365 (1973).
Similarly, OCRE believes that any alleged financial
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harm incurred by Applicants pales in comparison to the potential harm to society posed by the operation of an. unsafe facility.
Applicants took the risk, when planning and building the Perry facility, that the plant might be completed and they might not be able to obtain an operating license (or the OL might not be issued in accordance with their schedules and proferences).
The public, on the other hand, must bear the risks to health t
and safety posed by the plant's operation.
Applicants accepted their risks voluntarily; the public did not.
This fundamental difference demands the public litigation of issues such as those which Applicants seek to have dismissed.
_4/ OCRE suspects that delay may even be beneficial to Applicancs.
One of the lessons of the TMI-2 accident which all utilities should have learned well is that the economic consequences of an accident far outweigh the incremental costs of ad-ditional safety requirements.
t
\\ As for the Marble Hill (supra) standards for directed certification, Applicants nave met neither.
The admission of'these contentions does no't threaten them with immediate
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or irreparable harm.
Clearly, other remedies (e.g., sum-mary disposition under 10 CFR 2.749 or a timely appeal under 10 CFR 2.762) exist by which any " harm" ca( be mitigated.
Nor has the Licensing Board.'g ruling affected this proceeding
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in an unusual or pervasive mhnner.
Indeed, as their discussion L'
of each of the three contentions in question indicates, Applicants merely disagree with the Licensing Board's reasoning.
Such disagreement is not sufficient to trigger directed'certication.
III.
The Licensing 5 Board's Reasoning in Admitting Issues 13, 14, and 15 is Not at Odds with the Commission's Regula-tions and Hulines The standards f6r the admission of late-filed contentions are found in 10 CFR 2.714, which requires that late contentions, in addition to meeting the "' oasis and specificity" criteria, be judged according to the five factors listed in Section 2.714 (a)(1).
The calancing of these factors is left to the dis-
_.6,,/
cretion of the Licensing Board.
The oasis and specificity Consumers
_5/ Litigation expense is not irreparhole injury.
Pov.er Company (Midland Plant, Units 1 and 2 ), ALaB-395, 5 Unc 773, T/9 ( 1977 ).
As an aside, OChE finds npplicants' sudden preoccupation with cost control to be curiously uncharacteristic.
E.g.,
as those living in their service area can attest, Applicants have no dearth of funds to spend on promotional advertising.
Hoviever, when it comes to the public litigation of important safety issues, their purse strings are suddenly tightened.
10.CFR
_6/ Licensing Boards enjoy broad discretionary powers.
(continued next page)
_6_
requirements were further defined in Houston Lightine and Power Company (Allens Creek Nuclear Generating Station, Unit
- 1) ', ALAB-590, 11 NRC 542 (1980) and Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2),
A LAB-130, 6 AEC 423 (1973).
Applicants' quarrel with these contentions is mainly concerned with the question of whether adequate basis and specificity has been demonstrated.
OCRE believes that, if the Licensing Board were to follow Applicants' suggestions and probe too deeply into the merits of these contentions before admitting them, the Licensing Board would be violating the directives of Allens Creek and
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Grand Gulf.
A few of Applicants' objections to the admission of thesc 8_/
contentions deserve comment.
A central question raised by Applicants with regard to both Issues 13 and 14 is the sig-
_6/ continued.
2.718.
Indeed, Licensing Boards may even allow petitioners l
who do not meet the judicial standing criteria to inter-vene in a proceeding on a discretionary basis. Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).
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_7/ It should oe noted that tne NhC Staff found that all three of tne contentions in question met the specificity and basis requirements.
See "NRC Staff Response to Motion of Ohio Citizens for hosponsible Energy for Leave to File its Contentions 21-26," dated Septemoer 21, 1982.
_8/ OChE will not repeat herein all of the arguments favoring or opposinE the admission of these contentions but rather refers the Appeal Board to the oriefs filed by OCHE, Ap-plicants, and the Staff concerning OCHE's contentions 21 through 26.
nificance to be accorded to Regulatory Guides.
Applicants cite the Appeal Board decision in Gulf States Utilities (h' ver Bend Station, Units l' and 2), ALAB-444, 6 NRC 760 (1977),
i
'yet they ignore the fact that the Commission determined that hegulatory Guides are entitled to considerable prima facie weight.
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809, 811 (1974).
Thus, the Licensing Board 8s finding that the Regulatory Guides form a basis for the contentions is not at odds with Commission precedent.
Applicants also ignore the background of the turbine missile issue.
The NRC Staff at the construction permit stage considered this issue resolved.
Thus, a person reviewing the CP-stage SER for Perry would not find cause to inquire further.
Now, however, the Staff has marked this issue as an open item.
This unexplained shift in position, along with the ACHS letter, prompted OCRE's investigation of this issue and is the basis of OCHE's " good cause" for late filing.
The fact that the Staff has now changed its mind on the significance of the tur-oine missile issue for Perry also provides basis for rejecting the Staff's CP-stage conclusion, contrary to Applicants' asser-tions (Motion at 10).
ns to Applicants' arSuments against the Licensing Board's finding " good cause" concerning Issue 14, OCHE believes that the change in the Staff's position on in-core thermocouples providcs good cause for late filing.
One of the factors in 10 CFR 2.714(a)(1) is "the extent to which the petitioner's i
8-e interest will be represented by existing parties. "
If OCRE had submitted this contention while the Staff still required in-core tnermocouples in BWhs, presumaDly its admission could be denied o'n ' this factor alone.
OCRE would also point out that the Appeal Board has ruled that new regulatory developments and the availability of new information may constitute good cause for a delay in seeking intervention.
Duke Power Company (Amendment to Materials License SNM-1773 - Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146 (1979).
OCRE maintains that the Staff's shift in policy on this issue (and on Issue 13, as well) does constitute a new regulatory development and there-fore provides good cause for late filing /
9 As for Issue 15, on steam erosion, OCRE filed this con-tention shortly after the issuance of the IE Information Notices, even without knowledge. of Applicants' inservice testing program, to avoid accusations of laxity in filing.
As it is, the Staff considered OCRE's submission of this contention to be unjusti-fiably late.
Furthermore, the mere fact that an issue may have generic implications does not preclude its consideration in individual proceedings.
See Virg; inia Electric and Power Com-puny (North anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 NRC 245 (1978).
_9/ Applicants' Motion at 16, foctnote 12, erroneously refers to this as " Sunflower's contention."
It should read "0CRE's contention."
y e
-G-IV.
Conclusion OCHE finds tha't Applicants' second attempt to seek di--
rected certification of a Licensing Board decision admitting late-filed contentions is as deficient as their first.
Al-though Applicants set forth a variety of allegations as to the impropriety' of the Licensing Board's actions, they would not, even if true (OCRE believes that they are totally unfounded),
compel directed certification. Indeed, if all unsatisfied parties in NRC proceedings were to seek interlocutory review g
with no more substantial grounds than those cited by Applicants, the Appeal Board would be so burdened that it would have little time for much else.
For these and all the reasons set forth above, OCRE concludes that Applicants' Motion must be denied.
Respectfully submitted,
- zS Susan L. Hiatt OCRE Representative 8275 Munson Rd.
Mentor, OH 44060 (216) 255-3158
.s CERTIFICATE OF SERVICE 0-'. f.E T ED
- L;r "
, PES %NT5 ' Jg rppioing gpH This is to certify that copies of the, CITIZENS FOR hESPONSIBLE ENERGY RESPONSE T
" MOTION FOR DIRECTED CERTIFICATION OF THE LICENSING BOARD'S MEMORANDUM ARD ORDER OF 0CTOB R 29, 1982" were ser.ved%by deposit in the U.S. Mail, first class, postagd prpp"aTdF-this 3rd day of December,1982 to those on thE dfrvice list-below.
2 Susan L.
Hiatt SERVICt LIST Christine N. Kohl, Chairman Docketing & Service Branch 01fice of the Secretary Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Comm.
U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Washington, D. C.
20555 James M.
Cutchin, IV, Esq.
Office of the Executive Dr. John H. Buck Atomic Safety & Licensing Legal Director U.S. Nuclear Regulatory Comm.
Appeal Board U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Was hington, D.C.
20555 Jay Silberg, Esq.
Shaw, Pittman, Potts, &
Gary J. Edles, Esq.
Trowbridge Atomic Safety & Licensing 1800 M Street, NW Appeal Board U.S. Nuclear Regulatory Comm.
Washington, D.C.
20036 Washington, D.C.
20555 Daniel D. Wilt, Esq.
P.O. Box 08159 Peter B. Bloch, Chairman Atomic Safety & Licensing Board Cleveland, OH 44108 U.S. Nuclear Regulatory Comm.
Was hington, D.C.
20555 Dr. Jerry R. Kline atomic Safety & Licensing Board U.S. Nuclear Regulatory Comm.
Washington, D. C.
20555 Mr. Frederick J. Shon Atomic Safety & Licensing Board U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555