ML17139A025
| ML17139A025 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 03/30/1981 |
| From: | Laverty J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8104010448 | |
| Download: ML17139A025 (11) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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j'FORE TNE ATONIC SAFETT AIID I ICEIISING DOARD In the Matter of
)
)
)
PENNSYLVANIA POWER At(0 LIGHT CO.
AND
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ALLEGHENY ELECTRIC COOPERATIVE, INC.
)
)
(Susquehanna Steam Electric Station,
)
Units 1 and 2)
Decl:ec IlosMD<g
~)0=388 NRC STAFF
RESPONSE
TO PETITION FOR LEAVE TO INTERVENE AND RE UEST FOR HEARING ON LICENSE APPLICATION FOR PART 70 LICENSE I.
INTRODUCTION On March 9, 1981, the Office of the Secretary of the Commission served on the Licensing Board and on all parties to the Susquehanna operating license proceeding a copy of the Susquehanna Environmental Advocates'SEA)
Petition for Leave to Intervene and Request for Hearing (Petition), dated March 2, 1981, on the application of Pennsylvania Power and Light Company and Allegheny Electric Cooperative, Inc. (Applicants) for a Part 70 license authorizing receipt, possession,
- storage, I
inspection, and packaging for transport of nuclear fuel bundles/
assemblies.
The NRC Staff (Staff) has served by letter a copy of this application on the Licensing Board and on all parties to the operating license proceeding on January 14, 1981.1/
1/
In Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2, CLI-76-1, 3
NRC 73, 74 n.l (1976),
the Commission stated:
The Atomic Safety and Licensing Boards may be given jurisdiction over proceedings for the issuance of Part 70 materials licenses.
10 CFR 2,721.
Normally, the notice of hearing constituting a particular board confers jurisdiction in (footnote continued on next page) 8XGCay 6 a'i~
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DISCUSSION A.
Interest and Standin 1.
General rinci les of law It is well established that judicial concepts of standing should be applied in determining whether or not a petitioner is entitled to intervene as of right.
Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-26, 4
NRC 610, 613-14 (1976).
These judicial concepts require a showing (a) that the action bei~g challenged could cause injury-in-fact to the person seeking to establish
- standing, and (b) that the injury is arguably within the zone of interests protected by the statutes governing the proceeding.
Sierra C'lob v. Morton, 405 U.S.
717 (1972); Bellow v. Collins, 397 U.S.
159
( 1970); Association of Data Processin Service Or anizations v.
~Cam 97 II.S.
15II (19 0); ~bb1 S i,~;
Vi i i E1 Co.
{North Anna Power Station, Units 1 and 2), ALAB-342, 4 NRC 98 (1976).
{footnote continued from previous page) a particular case by referencing the specific license application or applications to be considered.
Although the notice of hearing establishing the present board did not explicitly reference the materials license in question
- here, that license is integral to the Diablo Canyon project, and it does not appear that any interested person was actually prejudiced by the lack of such a reference.
Given that Board's familiarity with the Diablo Canyon project, it made good practical sense for it to hear and decide the related issues raised by the Part 70 materials license application.
Accordingly, we hereby confirm the Licensing Board's assertion of jurisdiction in this instance.
Because of the similarities between this case and the Diablo Canyon proceeding, the Staff believes that it is appropriate for this Board to consider the present Petition.
2.
The instant etition When the foregoing principles are applied to t he instant petition, it appears that SEA has not demonstrated the standing and interest required by law.
With regard to standing and interest, the Peti tion states:
SEA has about 150 members.
Most of the members are customers of PP8L and would be affected financially by the action referred to....
Of the four issues which SEA indicates it would like to raise in a
- hearing, three relate to financial matters, such as the cost of storing fresh fuel on-site rather than off-site.
In its conclusion, SEA states that "[t]he issuance of a license for PPSL to bring fuel on-site and/or to store fuel in the spent fuel pools may be harmful to the financial interests of PP8L ratepayers, and thus, the Petitioner."
It is well settled that an interest which is purely economic in character does not confer standing to intervene under the Atomic Energy Act nor is threatened economic harm sufficient to invoke the National Environmental Policy Act (42 U.S.C.
EE 4321
~et se
) unless (as is not alleged here) that harm "will or may be occasioned by the impact that the Federal action under consideration would or might have upon the environment."-
Houston Li htin and Power Co. {Aliens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239 (1980).
While SEA does not specify what financial harm it believes it wil'i suffer from Applicant's receipt of a Part 70 license, apparently it believes that the rates charged Applicants'ustomers will go up due to the cost of Tennessee Valle Authorit (Watts Bar Nuclear Plant, Units 1 and 2, ALAB-413, 5 NRC 1418, 1420-21 (1977).
storing and securing fresh fuel on site and due to its apparent belief that the fuel has not already been bought.
SEA's status as a ratepayer of the Applicants,
- however, does not confer standing.
Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6
NRC 760, 795 n.75 (1977);
Tennessee Valle Authorit (Watts Bar Nuclear Plant, Units 1 and 2), ALAS-413, 5
RRC 1415, 1420-21, ~aff'SP-77-36, 5
NRC 1292, 1294 (1977); Public Service Com an of Oklahoma (Black Fox
- Station, Units 1 and 2), ALAB-397, 5 NRC 1143, 1147, reconsideration den ALAS-402, 5
NRC 1182 (1977); Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4
NRC 610, 614 (1976).
- Thus, SEA has alleged an interest not cognizable by the Licensing Board and has not specified the injury it believes it will, in fact, suffer.
The fourth issue raised by SEA is "[t]he health and safety risks, if any, of bringing and storing the fuel on-site.
This allegation is so speculative as to fail to allege any injury-in-fact.
- Thus, as SEA has alleged no other interest in the proceeding, the Staff concludes that it has failed to establish that it might suffer injury-in-fact from the proposed action and that its interest is within the zone of interests 3/
As the Appeal Board stated in Nuclear En ineerin Com an
, Inc.
(Sheffield, Illinois Low-Level Radioactive Waste Disposal Site ALAB-473, 7 NRC 737, 743 (1978),
"... the test is whether a
cognizable interest of the petitioner might be adversely affected if the proceeding has one outcome rather than another.
And to repeat, no such interest is to be presumed.
There must b'e a concrete demonstration that harm to the petitioner (or those it represents) will or could flow from a result unfavorable to it whatever that result might be.
protected by the Atomic Energy Act.
Accordingly, it is the Staff's view that SEA does not possess the requisite standing to intervene as a
matter of right in tne proceeding.
B.
Discretionar Intervention 1.
General rinci les of law In Portland General Electric Com an (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4
NRC 610 (1976), the Commission held that even if a petitioner for intervention could not satisfy the requirements for intervention as a matter of right, intervention could be permitted as a matter of discretion after the Licensing Board considered and evaluated the following, or similar factors:
(a) Weighing in favor of allowing intervention--
(1) The extent to which the petitioners participation may reasonably be expected to assist in developing a
sound record.
(2) The nature and extent of the petitioner's
- property, financial, or other interest in the proceeding.
(3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
(b) Weighing against allowing intervention--
(4) The availability of other means whereby petitioner's interest will be protected.
(5) The extent to which the petitioner's interest will be represented by existing parties.
(6) The extent to which petitioner's participation will in inappropriately broaden or delay the proceeding.
(4 NRC at 616).
Of these factors, the most important is the value of the contribution a petitioner could make in developing a
sound record if granted intervenor status.
Vir inia Electric and Power Com an (North Anna Power Station, Units 1 and 2}, ALAB-363, 4 NRC 631, 633 {1976).
The burden of convincing the Licensing Board that a putative intervenor would mak.
a valuable contribution lies with the petitioner.
Nuclear Enoineerin Com an (Sheffield, Illinois Low-Level Radioactive Waste Oisposal Site}, ALAB-473, 7
NRC 737, 745 (1978).
- Finally, discretionary intervention should be allowed only upon an unusually strong showing if otherwise there would be no hearing at all.
Tennessee Valle Authorit (Watts Bar Nuclear Plant, Units I and 2),
ALAB-413, 5 NRC l418, 1422 (1977).
2.
The instant etition At the outset, it should be noted that the Staff served Applicants'art 70 license application on the Licensing Board and on all parties to
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114,1941.
1 that time, neither the Board nor any of the parties raised any objection to the Staff's processing of that application.
In fact, the Staff's letter which accompanied service of the application noted that, subject to making favorable findings on applicable requirements, action by the Staff was expected by the end of January, 198).
Almost two months later when the Staff is very near completion of its review, SEA requested a
hearing.
SEA has not indicated in its filing why it took such a long time to request a hearing.
If the receipt of Applicants'art 70 license
7-application had been noticed in the Federal
- Register, SEA prohahly would have been provided only 30 days within which to request a hearing.
Furthermore, when SEA did file its Petition, it based its request on possible harm to the financial interests of Applicants'atepayers and thus to SEA.
This is not an interest within the zone of interests protected hy the Atomic Energy Act and thus is not cognizable bv the Licensing Board.
SEA's contribution to the record would be valueless as the Board has no jurisdiction over this subject matter.
Only one of the four issues noted for discussion in SEA's Petition does not relate to financial harm to SEA members.
That issue is "[t]he health and safety risks, if'ny, of bringing and storing the fuel on-site."
On its face, this issue conveys that SEA does not know if on-site storage of fresh fuel has any health and safety implications.
Thus, clearly SEA's contribution to the record on this issue would also be valueless.
Finally, the Staff notes that the test for granting intervention as f di i << i
~bb1 i
p1
<<h interest alleged by the putative intervenor is one properly before the Board.
The Board must exercise its discretion because the putative intervenor has failed to establish injury-in-fact.
Here because the interest which SEA wants to be protected is not properly before the
- Board, a Board decision to permit SEA to intervene as a matter of discretion on this matter would be inappropriate.
Accordingly, the Staff believes that SEA should not be granted intervenor status either as a matter of right or due to the Board's exercise of its discretion.
III.
CONCLUSION For the reasons discussd
- above, the Staff believes that the Petition for Leave to Intervene and Request for Hearing filed by SEA should be denied.
Respectfully submitted,
'/
Jessica H. Laverty Counsel for NRC Staff Dated at Bethesda, Maryland this 30th day of March, 1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PENNSYLVANIA POWER AND LIGHT CO.
ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam Electric Station, Units 1
and 2)
)
)
)
Docket Nos.
50-387
)
50-388
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)
)
CERTIFICATE OF SERVICE I hereby certify that copies of, "NRC STAFF
RESPONSE
SUPPORTING APPLICANTS'OTION FOR
SUMMARY
DISPOSITION OF CONTENTION 12" and "flRC STAFF
RESPONSE
TO PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING ON LICENSE APPLICATION FOR PART 70 LICENSE", dated March 30, 1981, in the above-captioned proceeding, has been served on the following, by deposit in the United States
- mail, first class, or, as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 30th day of March, 1981:
James P. Gleason, Chairman Administrative Judge 513 Gi lmoure Drive Silver Spring, Maryland 20901 Mr. Glenn 0. Bright, Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.
C.
20555 Dr. Paul W. Purdom 245 Gulph Hills Road
- Radnor, Pennsylvania 19087 Jay Silberg, Esq.
Shaw, Pittman, Potts and Trowbridge 1800 M Street, N.W.
Washington, D.C.
20036 Bryan A. Snapp, Esq.
Pennsylvania Power 5 Light Company Two North Ninth Street Allentown, Pennsylvania 18101 Dr. Judith H. Johnsrud Co-Director Environmental Coalition on Nuclear Power 433 Orlando Avenue State College, Pennsylvania 16801 Mr. Thomas M. Gerusky, Director Bureau of Radiation Protection Department of Environmental Resources Commonwealth of Pennsylvania P. 0.
Box 2063 Harrisburg, Pennsylvania 17120 Ms. Colleen Marsh Box 538A, RD",4 Mountain Top, Pennsylvania 17120 Mr.
Thoma s J.
Ha 1 1 i gan Correspondent:
CAND P. 0.
Box 5
- Scranton, Pennsylvania 18501
- Richard S.
- Salzman, Esq.,
- Chairman, Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Dr. John H. Buck, Administrative Judge Atomic Safety and Licensing Appeal Board U.S.
I<uclear Regulatory Commission Washington, D.C.
20555
- f1r. Thomas S.
Moore, Administrative Judge Atomic Safety and Licensing Appeal Board U.S. tluclear Regulatory Commission Washington, D.C.
20555
- Atomic Safety E Licensing Board Panel U.S. Huclear Regulatory Commission Washington, D.C.
20555
- Atomic Safety 5 Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Secretary U.S. Wuclear Regulatory Commission ATTH:
Chief, Docketing 5 Service Branch Washington, D.C.
20555 Susquehanna Environmental Advocates c/o Gerald Schultz, Esq.
P.O.
Box 1560 Wilkes-Barre, PA 18703 fear. Robert l1. Gallo Resident Inspector P.O.
Box 52 Shickshinny, Pennsylvania 18655 Robert W. Adler Dept. of Environmental Resources 505 Executive House P.O.
Box 2357 Harrisburg, Pennsylvania 17120 essica H. Laverty Counsel for HRC Staff