ML16348A495
| ML16348A495 | |
| Person / Time | |
|---|---|
| Site: | Indian Point, FitzPatrick  |
| Issue date: | 12/13/2016 |
| From: | Kennedy M, Paul Ryerson, Ronald Spritzer Atomic Safety and Licensing Board Panel |
| To: | Alliance for a Green Economy, Council on Intelligent Energy & Conservation Policy (CIECP), Hudson River Sloop Clearwater, Indian Point Safe Energy Coalition, Nuclear Information & Resource Service (NIRS), Radiation and Public Health Project (RPHP), Sierra Club, Lower Hudson Group |
| SECY RAS | |
| References | |
| 50-286, 50-333, ASLBP 16-950-01-LA-BD01, LBP-16-14, RAS 51503 | |
| Download: ML16348A495 (11) | |
Text
LBP-16-14 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Paul S. Ryerson, Chairman Ronald M. Spritzer Dr. Michael F. Kennedy In the Matter of Docket Nos. 50-286 and 50-333 ENTERGY NUCLEAR OPERATIONS, INC.
ASLBP No. 16-950-01-LA-BD01 (Indian Point Nuclear Generating Unit No. 3 and James A. Fitzpatrick Nuclear Power Plant) December 13, 2016 MEMORANDUM AND ORDER (Ruling on Petition to Intervene and Request for a Hearing)
Before the Board is a Petition filed on behalf of Indian Point Safe Energy Coalition, Hudson River Sloop Clearwater, Council on Intelligent Energy and Conservation Policy, Sierra Club Hudson Valley, Nuclear Information and Resource Service, Alliance for Green Economy, and Radiation and Public Health Project (collectively Petitioners).1 Petitioners seek a hearing on an application by Entergy Nuclear Operations, Inc. (Entergy) to transfer the beneficial interest in the Master Decommissioning Trust for Indian Point Nuclear Generating Unit No. 3 (Indian Point) and James A. FitzPatrick Nuclear Power Plant (FitzPatrick).
1 Request for Public Hearing on Indian Point 2 License Amendment: Docket ID NRC-2015-0038 (Sept. 15, 2016) [hereinafter Petition].
Because Petitioners have failed to demonstrate that they have standing, we deny the request for a hearing and dismiss the Petition.
I. BACKGROUND On August 16, 2016, Entergy submitted an application to transfer to itself the beneficial interest in the Master Decommissioning Trust for Indian Point and FitzPatrick held by the Power Authority of the State of New York (PASNY).2 To facilitate the transfer, Entergy requested the approval of amendments to the Master Decommissioning Trust Agreement.3 Entergy also requested license amendments to modify existing trust-related license conditions to reflect the proposed transfer and to adopt the regulatory requirements of 10 C.F.R. § 50.75(h)(1).4 On September 15, 2016, Susan Shapiro, acting as attorney for Petitioners,5 emailed a letter to the NRCs Office of the Secretary requesting a hearing regarding Entergys application.6 Pursuant to a standing order of the Commission, directing the Secretary to reject summarily any nonconforming pleadings submitted by Ms. Shapiro,7 her filing was rejected by the Secretary 2 81 Fed. Reg. 66,301, 66,305-06 (Sept. 27, 2016). The proposed transfer requires Entergy to assume PASNYs responsibilities and obligations. Application for Order to Transfer Master Decommissioning Trust From PASNY to [Entergy], Consenting to Amendments to Trust Agreement, and Approving Proposed License Amendments to Modify and Delete Decommissioning Trust License Conditions Upon the Transfer of Trust Funds (Aug. 16, 2016) at 2 (ADAMS Accession No. ML16230A308). PASNY agrees to the transfer and joins in Entergys approval request. Id.
3 81 Fed. Reg. at 66,306.
4 Id.
5 Petition at 3.
6 See Secretary of the Commission Order (Oct. 3, 2016) at 1 (unpublished) [hereinafter Secretary Order].
7 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-08-29, 68 NRC 899, 903 (2008). The Commission issued this Order because, in an earlier proceeding, Ms. Shapiro was repeatedly unable or unwilling to comply with the Licensing Boards instructions or NRC rules.
Id. at 901-03.
because it did not comply with the NRCs E-filing requirements.8 In rejecting Ms. Shapiros pleading, the Secretary referenced the intervening Federal Register notice of an opportunity to request a hearing regarding Entergys application,9 and advised of the opportunity to refile.10 Ms. Shapiro refiled her letter through the NRCs E-filing system on November 1, 2016.11 Finding the document responsive to the Federal Register notice, the Secretary referred the matter to the Atomic Safety and Licensing Board Panel12 and this Board was established to preside over the proceeding on November 18, 2016.13 The NRC Staff and Entergy oppose Petitioners request for a hearing.14 Petitioners have not exercised their right to reply.15 8 Secretary Order at 1-2.
9 81 Fed. Reg. at 66,302-03.
10 Secretary Order at 2.
11 Memorandum from Annette Vietti-Cook, NRC Secretary, to E. Roy Hawkens, ASLBP Chief Administrative Judge (Nov. 15, 2016) at 1 (ADAMS Accession No. ML16320A205).
12 Id.
13 Establishment of Atomic Safety and Licensing Board (Nov. 18, 2016); see also 81 Fed. Reg.
85,645 (Nov. 28, 2016).
14 NRC Staff Answer to Hearing Request (Nov. 28, 2016) [hereinafter NRC Staff Answer];
Entergys Answer Opposing Request for Hearing (Nov. 28, 2016) [hereinafter Entergy Answer].
In its Answer, Entergy argues, inter alia, that, under the Commissions Standing Order regarding filings by Ms. Shapiro, the Petition should be summarily rejected because of her failure to comply with numerous procedural regulations, including failure to provide a certificate of service and a written notice of appearance. See Entergy Answer at 8-9. The Commissions Order, however, was directed to the Secretary, not to the Atomic Safety and Licensing Board Panel.
Indian Point, CLI-08-29, 68 NRC at 903. The Board therefore relies for its decision on its analysis of standing and contention admissibility, and not on Ms. Shapiros failure to comply with other, more technical procedural regulations.
15 10 C.F.R. § 2.309(i)(2).
II. DISCUSSION To obtain a hearing, a petitioner must establish standing and propose at least one admissible contention.16 A petitioner must demonstrate standing in each proceeding in which it seeks to intervene, even if granted standing in another case concerning the same or a nearby facility.17 A. Standing The Commission must grant a hearing upon the request of any person whose interest may be affected by the proceeding.18 An organization may base its standing on either immediate or threatened injury to its organizational interests, or to the interests of identified members.19 An organization may establish representational standing by showing that at least one member has standing to intervene in their own right and has authorized the organization to request a hearing on their behalf.20 Alternatively, an organization may establish organizational standing if it demonstrates a risk of discrete institutional injury to itself.21 The Petition identifies seven organizations as reactor community Stakeholders.22 These Stakeholders are described as residents of the Indian Point and FitzPatrick Reactor 16 Id. § 2.309(a); see also id. § 2.309(d) (listing standing requirements); id. § 2.309(f)(1) (listing contention admissibility requirements).
17 PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-07, 71 NRC 133, 138 (2010).
18 42 U.S.C. § 2239(a)(1)(A).
19 Ga. Inst. of Tech. (Ga. Tech. Research Reactor, Atlanta, Ga.), CLI-95-12, 42 NRC 111, 115 (1995).
20 Id.
21 Consumers Energy Co. (Palisades Nuclear Plant), CLI-07-18, 65 NRC 399, 411-12 (2007)
(quoting Intl Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 252 (2001)) (emphasis omitted).
22 Petition at 3.
Communities residing within 50 miles of Indian Point 3 or Fitzpatrick.23 The Petition, however, does not provide further detail regarding the specific locations or organizational interests of the listed organizations. Nor do Petitioners clarify whether they claim organizational or representational standing. Because the Petition defines the listed organizations as stakeholders and residents for purposes of this proceeding (and does not identify any organizational members), the Board assumes that they are asserting organizational standing.24 The Commission has stated that [o]rganizations seeking to intervene in their own right must satisfy the same standing requirements as individuals seeking to intervene.25 Pursuant to 10 C.F.R. § 2.309(d)(1), a petition must state:
(i) The name, address and telephone number of the requestor or petitioner; (ii) The nature of the requestors/petitioners right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestors/petitioners property, financial or other interest in the proceeding; and (iv) The possible effect of any decision or order that may be issued in the proceeding on the requestors/petitioners interest.26 The Petition fails to address these threshold requirements for any of the seven listed organizations.
23 Id. at 2.
24 In any event, Petitioners have not established representational standing because they do not identify any organizational member, show that any member authorized representation, or state how any member is affected by the proposed action. See Ga. Tech., CLI-95-12, 42 NRC at 115; Palisades, CLI-07-18, 65 NRC at 409-10.
25 Palisades, CLI-07-18, 65 NRC at 411.
26 10 C.F.R. § 2.309(d)(1)(i)-(iv).
Petitioners failure to satisfy the procedural requirements of section 2.309(d)(1) also creates substantive challenges for the Board in evaluating Petitioners standing.27 For example, if Petitioners brief reference to residency within 50 miles of Indian Point or FitzPatrick is intended to trigger the proximity presumption,28 then Petitioners failure to provide physical addresses precludes the Board from evaluating the proximity presumptions potential applicability.29 Similarly, Petitioners failure to identify their interests in this proceeding or the possible effect of any decision on their interests prevents the Board from evaluating any 27 Id. § 2.309(d)(2) (In ruling on a request for hearing or petition for leave to intervene, . . . the Atomic Safety and Licensing Board designated to rule on such requests must determine, among other things, whether the petitioner has an interest affected by the proceeding considering the factors enumerated in paragraph (d)(1) of this section.).
28 In license amendment proceedings, a petitioner may claim standing based on the proximity presumption, if the proposed action quite obvious[ly] entails an increased potential for offsite consequences. Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI 04, 49 NRC 185, 191 (1999) (quoting Fla. Power & Light Co. (St. Lucie, Units 1 & 2), CLI-89-21, 30 NRC 325, 329-30 (1989)). There are limits to proximity standing, however, when there are no changes to the physical plant itself, its operating procedures, design basis accident analysis, management, or personnel. See Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-05-26, 62 NRC 577, 582 (2005) (stating that the license transfer did not implicate these concerns). Therefore, the Commission has rejected proximity standing for license transfers, license amendments associated with shutdown and de-fueled reactors, and certain changes to worker-protection requirements. So. Nuclear Operating Co., Inc. (Vogtle Electric Generating Plant, Units 3 & 4), LBP-16-05, 83 NRC 259, 274-75 (2016) (footnotes omitted). In this case, Petitioners arguably have not satisfied their burden to show that the presumption should apply in the context of a decommissioning trust transfer. See Peach Bottom, CLI-05-26, 62 NRC at 581. Because of other deficiencies in Petitioners attempt to demonstrate standing, however, the Board need not decide this issue.
29 See Palisades, CLI-07-18, 65 NRC at 413 (noting that [a]lthough [local school and hospital organizations] suggest geographic proximity as a basis for a presumption of harm in support of standing, they fail to provide any individual addresses as required by 10 C.F.R. § 2.309(d)(1) and do not specify their respective distances to the . . . facility (footnote omitted)). To demonstrate an interest based on proximity, a petitioner must provide more than general assertions of proximity. See id. at 410. For example, the Commission has stated that [i]n ruling on claims of proximity standing, we decide the appropriate radius on a case-by-case basis. Peach Bottom, CLI-05-26, 62 NRC at 580. In this proceeding, the Petition does not contain the information needed to make this determination.
possible discrete institutional injury to the listed organizations.30 Petitioners therefore fail to demonstrate how any of their interests may be affected and redressed by this proceeding.
For these reasons, Petitioners have not demonstrated standing.
B. Contention Admissibility Initially, there is some question whether we should address the admissibility of Petitioners contentions, given our ruling that they fail to demonstrate standing. Both the Atomic Energy Act and the Commissions regulations permit intervention only by a person whose interest may be affected by the proceeding.31 The Commission applies judicial concepts of standing to determine whether petitioners have such an interest,32 and when petitioners fail to establish that they have an interest that may be affected by the proceeding there is arguably no statutory or regulatory basis for a licensing board to proceed further in the matter. As the Commission has stated, standing is an essential element in determining whether there is any legitimate role for a court or an agency adjudicatory body in dealing with a particular grievance.33 Thus, given our ruling that the Petitioners fail to demonstrate standing, our legitimate role in adjudicating their grievance arguably has come to an end.34 30 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 270 (2008) (noting that general environment and policy interests have been repeatedly found insufficient).
31 42 U.S.C. § 2239(a)(1)(A); 10 C.F.R. § 2.309(a), (d).
32 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009) (In assessing whether a petitioner has standing, we have long applied contemporaneous judicial concepts of standing.).
33 Westinghouse Elec. Corp. (Nuclear Fuel Export License for Czech Republic - Temelin Nuclear Power Plants), CLI-94-07, 39 NRC 322, 331-32 (1994).
34 This interpretation is analogous to the longstanding rule of federal court jurisdiction that, absent standing, a federal court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. See Steel Co. v. Citizens for a Better Envt, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868)). This
In any event, even assuming we have the discretion to rule on the admissibility of Petitioners contentions, we decline to do so in this instance.35 Just as they have failed to attempt to satisfy standing requirements, Petitioners do not even acknowledge the Commissions contention admissibility requirements.36 They do not identify, much less set forth with particularity, any contention.37 Tellingly, Entergy and the NRC Staff do not even agree on the number of proffered contentions to which they are responding.38 That is not surprising.
Absent any guidance from Petitioners, reasonable persons might struggle to identify any number of contentions among Petitioners various objections.
We decline to undertake the task of creating contentions out of Petitioners various conclusory and unsupported objections, and then determining whether the contentions we have created satisfy the contention admissibility requirements. If we were to create contentions for Petitioners, we would be taking on a task that properly belongs to them or to their counsel, not to the Board.39 The Commission has explained that it does not wish to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearingas demonstrated by compliance with all six contention rule is not directly applicable to NRC adjudications, because the NRC is not strictly bound by federal judicial standing doctrines. Calvert Cliffs, CLI-09-20, 70 NRC at 915.
35 In cases where the failure to establish standing is less clear than it is here, it might be appropriate for a licensing board to rule on the admissibility of the petitioners contentions in order to present the Commission with a complete board ruling on appeal. If the Commission were to reverse the boards ruling on standing, it could review the boards ruling on contention admissibility at the same time, thereby avoiding a potential second appeal on contention admissibility.
36 10 C.F.R. § 2.309(f)(1).
37 Id.
38 Compare Entergy Answer at 17-22 (identifying six arguments), with NRC Staff Answer at 17-25 (identifying five arguments).
39 See Crow Butte Res., Inc. (N. Trend Expansion Project), CLI-09-12, 69 NRC 535, 553 (2009).
admissibility requirements.40 Here, given Petitioners failure to even attempt to demonstrate compliance with those requirements, we need do no more than dismiss the Petition for lack of standing.
III. CONCLUSION Petitioners have not demonstrated standing to intervene. Therefore, the Petition is denied. Petitioners may appeal this decision to the Commission, pursuant to 10 C.F.R. § 2.311, within twenty-five (25) days of service of this Order.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Paul S. Ryerson, Chairman ADMINISTRATIVE JUDGE
/RA/
Ronald M. Spritzer ADMINISTRATIVE JUDGE
/RA/
Dr. Michael F. Kennedy ADMINISTRATIVE JUDGE Rockville, Maryland December 13, 2016 40 Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-286 and 50-333
)
(Indian Point Nuclear Generating Unit No. 3; )
James A. Fitzpatrick Nuclear Power Plant) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Ruling on Petition to Intervene and Request for a Hearing) - LBP-16-14 have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission Cathy Scott, Esq.
Office of Commission Appellate Adjudication Beth N. Mizuno, Esq.
Mail Stop O-7H4M David E. Roth, Esq.
Washington, DC 20555-0001 Jeremy Wachutka, Esq.
ocaamail@nrc.gov John Tibbetts, Paralegal U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of the General Counsel Office of the Secretary of the Commission Mail Stop O-14A44 Mail Stop O-4F00 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: catherine.scott@nrc.gov; hearingdocket@nrc.gov beth.mizuno@nrc.gov; jeremy.wachutka@nrc.gov U.S. Nuclear Regulatory Commission john.tibbetts@nrc.gov Atomic Safety and Licensing Board Panel Mail Stop T-3F23 Washington, DC 20555-0001 OGC Mail Center OGCMailCenter@nrc.gov Paul S. Ryerson, Chair Administrative Judge Counsel for Licensee paul.ryerson@nrc.gov Paul M. Bessette, Esq.
John E. Matthews, Esq.
Ronald M. Spritzer Ryan Lighty, Esq.
Administrative Judge Morgan, Lewis & Bockius LLP ronald.spritzer@nrc.gov 1111 Pennsylvania Avenue, NW Washington, DC 20004 Dr. Michael F. Kennedy E-mail: pbessette@morganlewis.com Administrative Judge john.matthews@morganlewis.com michael.kennedy@nrc.gov rlighty@morganlewis.com Cooper Strickland Law Clerk cooper.strickland@nrc.gov
Docket Nos. 50-286 and 50-333 MEMORANDUM AND ORDER (Ruling on Petition to Intervene and Request for a Hearing)
- LBP-16-14 Susan H. Shapiro, Esq.
Indian Point Safe Energy Coalition Hudson River Sloop Clearwater Sierra Club, Lower Hudson Group Council on Intelligent Energy &
Conservation Policy Nuclear Information and Resource Service Alliance for Green Economy Public Health and Radiation Project 75 N. Middletown Road Nanuet, NY 10954 E-mail: susan@hitoshapirolaw.com
[Original signed by Herald M. Speiser ]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 13th day of December, 2016 2