ML17139A094
| ML17139A094 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 04/16/1981 |
| From: | Laverty J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8104200055 | |
| Download: ML17139A094 (16) | |
Text
4/16 81 cpi UNITED STATES OF AMERICA e"
~C P
NUCLEAR REGULATORY COMMISSION g,
>i C
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ~
In the Matter of PENNSYLVANIA POWER 5 LIGHT COMPANY AND ALLEGHENY ELECTRIC COOPERATIVE, INC.
)
(Susquehanna Steam Electric Station,
)
Units I 5 2)
)
Docket No 0%
0-388 NRC STAFF
RESPONSE
TO CITIZENS AGAINST NUCLEAR DANGERS STATEMENT ON INTERROGATORIES AND MOTIONS BEFORE THE LICENSING BOARD I.
INTRODUCTION On March 27, 1981, Citizens Against Nuclear Dangers (CAND) served its Statement on Interrogatories and Motions Before the Licensing Board (Statement).
In its Statement, CAND comments on its responsibilities during discovery.
The Statement also contains several motions.
Specifically, CAND moves the Licensing Board to withhold the issuance of a Part 70 license to Applicants which would permit them to store unirradiated fuel assemblies at the Susquehanna Units 1
8 2 site (facility).
CAND further moves the Licensing Board to hold an "inquiry" into Applicants'lans to construct a storage facility for low-level radioactive materials at the facility, and finally moves the Licensing Board to schedule sessions for the presentation of limited appearances at various locations and times.
The Staff will respond seriatim to these issues.
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gr II.
DISCUSSION A.
~Discover In response to a directive from the Atomic Safety and Licensing Board of February 27, 1981 to respond to discovery, CAND indicates that it "currently do(es) not possess any of the discovery information sought by the NRC and the Applicants, relevant to the health and safety contentions."-
As the Licensing Board in this proceeding has stated in the past, "assuming truthfulness of the statement, lack of knowledge is always an adequate response."
To this extent,
- then, CAND's Statement must be accepted.
However, the Staff would comment that much of CAND's Statement reflects a misperception on its part of the thrust of Staff discovery
,requests directed to it.
CAND appears to attacn substantial significance with respect to its discovery responsibilities to the exchange of technical information between the NRC Staff and the Applicants in the processing of this license application.
With respect to Applicants'ubmittal of tech-nical information, CAND apparently intends to use this information in its replies to interrogatories.
CAND also appears to be relying on the Staff's g3 SER to put it in a position to respond to the Staff's interrogatories.4/
1/
Statement, p.
1.
2/
Memorandum and Order on Scheduling and Discovery tlotions (August 24, 1979) at p.
8 (unpublished).
3/
Statement, pp. 1-2.
4/
Id.
!=
~
What the Staff, and presumably the Applicant, sought by its discovery requests were the bases for CAND's contentions in this proceeding.
What CAND appears to be saying is that it presently has no bases for its contentions but that upon issuance by the Staff of its SER and upon response by the Applicants to the Staff's questions, CAND would be in a position to review this material and provide its bases.
The clear implication of all of this is that CAND's "issues" will be litigated before this Licensing Board with CAND providing to this Board virtually no independent information to assist it in its deliberations.
B.
CAND's Motion With Res ect To New Fuel Stora e
On December 23, 1980, Applicants filed with the Director, Nuclear Material Safety and Safeguards, an application pursuant to Part 70 for authorization to receive,
- possess, store, inspect and package for transport nuclear fuel bundle/assemblies.
The application would permi t, the receipt of new (unirradiated) fuel bundle/assemblies and would permit their storage on the refueling floor of the facility's reactor building.
On January 14,
- 1981, NRC Staff Counsel served a copy of this application on the Licensing Board and on all parties to the operating license proceeding.
s 5/
5/
In Pacific Gas and Electric Com an (Diablo Canyon Nuclear Power Plant, Units 1
5 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.
Normally, the Notice of Hearing constituting a
particular board confers jurisdiction in a (Continued)
2.
General Princi als 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.
(Pehble Springs Nuclear Plant, Units I and 2), CLI-76-26, 4
NRC 610, 613-14 (1976).
These judicial concepts require a showing (a) that the action being 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 tne statutes governing the proceeding.
Sierra Club v. Norton, 405 U.S.
717 (1972); Barlow v. Collins, 397 U.S.
159 (1970); Association of Data Processin Service Or anizations v.
II7ir inia Electric and Power Co.
(North Anna Power Station, Units 1 and 2), ALAR-342, 4 NRC 98
( 1976).
As CAND is an organization, it must 5/
Contin~ued 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 proiect, 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 motion dealing with the Part 70 matter.
6/
Statement, p.
2.
explicitly identify the nature of the invasion to the personal interest of one of its members in order to establish its representational standing.
Houston Li htin and Power Co.
(Aliens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 393 (1979).
3.
The Instant Petition In its Statement, CAND requests that the Licensing Board "conduct a
special public hearing" on Applicants'pplication for authorization to store unirradiated fuel assemblies.
Thus, if treated as a request for 7/
a hearing and as a petition for leave to intervene in that hearing, CANO's motion must fulfill the standing requirements noted earlier of (1) a showing of injury-in-fact and (2) a showing that such iniury is arguably within the zone oF interests protected by governing statutes.
- Further, as an organization, CAND must explicitly identify the nature of the invasion the personal in.crest of one of its members.
CANO has failed to do this.
Its statement is devoid of any allegations of injury-in-fact much less an explicit identification of the injury which might affect one of its members.
- Thus, as CANO has 7/
Statement,
- p. 2.
8/
CAND's papers make reference to a "major deviation from the original plans."
This statement is unspecific and frought with ambiguity.
The Staff knows of no "major deviation" with respect to the planned storage of unirradiated nuclear fuel at the facility.
CANO also refers to "contentions pending in the licensing case directly dealing with the health and safety issue of the uranium fuel cycle."
Again this statement is unspecific and fails to satisfy the standing requirement.
failed to satisfy the standing requirement, its request for a hearing must be denied.-~
In Portland General Electric Com an (Pebble Springs Nuclear Plant, Units 1 5 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:
9/
It should be noted that the Staff served Applicants'art 70 license application on the Licensing Board and on all parties to the operating license proceeding on January 14, 1981.
At that time, neither the Board nor any of the parties raised any objection to the Sta,f'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, 1981.
Almost three months later when the Staff is very near comple-tion of its review, CAND requests a hearing.
CAND has not indicated in its filing why it took such a long time to request the hearing.
If the receipt of Applicants'art 70 license application had been noticed in the Federal
- Register, CAND would probably have been pro-vided only 30 days within which to request a hearing.
(a)
Ileighing in favor of allowing intervention--
(1)
The extent to wnich the petitioner's 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)
A 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 petitioner's interest will be represented by existing parties.
(6)
The extent to which petitioner's participation will 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 make a
valuable contribution lies with the petitioner.
Nuclear En ineerin
~Con an (Sheffield, Illinois Lovj-Level Radioactive llaste Disposal Site),
ALAB-473, 7 NRC 737, 745
( 1978).
Moreover, 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 1 and 2), ALAB-413, 5 NRC 1418, 1422 (1977).
Any application of the principals governing discretionary intervention requires a comprehension of petitioner's interest in the proceeding.
Application of four of the six factors hinges upon peti-tioner's interest.
As was argued
- above, no interest can be defined from CAND's papers.
The Staff notes that the test for granting intervention as a matter of discretion set out in ~pebble S~rin s
~su ra contemplates that the 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 CAND has not articulated an interest before the Board, a decision to permit CAND to intervene as a matter of discretion on this matter would be inappropriate.
Accordingly, the Staff believes that CAND should not be granted intervenor status either as a matter of right or based on the Board's exercise of its discretion.
10/
With respect to the criteria not requiring an examination of peti-tioner's interest, CAND has shown this Board nothing from which it could conclude that CAND could be reasonably expected to assist the Board in developing a sound record.
Furthermore, it is self-evident-that CAND's participation in a separate Part 70 proceeding will broaden or delay that proceeding.
C.
CAMO's Motion With Res ect T~oStora e Of Low-Level lfaa>pact>veTTater>a s
CAND moves the Licensing Board to hold an "inquiry" into the Applicants'lan to construct a "holding facility" for low-level radioactive materials at the facility. Applicants'lans in this area were summarized in a letter of November 25, 1980, to Harold Denton and John Davis. Applicants contemplate the storage oF low-level radioactive materials on the facility site for some interim period.
CAND's request for an inquiry" into this area is curious for the very subject with which it seeks an inquiry is already an issue in the operating license proceeding before this Board.
The specific contention which has been admitted reads as follows:
11.
The proposed project creates an unreasonable risk of harm to the health and safety of petitioners and their private property, and violates the Commission's standards for protection against radiation in 10 CFR 20. 1 and 20e 105(a), in that the Applicants had failed to provide adequately for safe onsite
- storage, for periods of up to 10 to 15 years, of spent fuel and low-level radioactive wastes.
LBP-79-6,
~so ra, 318.
Consequently, the Applicants'lans with respect to low-level waste storage are already an issue before the Licensing Board in the operating license proceeding.
CAND's motion should be denied as the relief it 14/
seeks, i.e.,
an inquiry into the Applicants'lans, has in effect already been granted by this Board in admitting Contention 11.
D.
CAND's Notion With Res ect To Limited A earance Statements With respect to, CAND's request that limited appearance statements be taken in a variety of locations in the Commonwealth of Pennsylvania at times convenient to the public, the Staff would suggest that some central location in the plant vicinity would appear to be best suited to meet both the objective of soliciting the views of the public in the vicinity of the facility and of bringing this proceeding to an expeditious close.
11/
To the extent that the possibility exists that the referred to "holding facility" could be the subject a of separate licensing action by the Commission, CAND, of course, then would have an opportunity to seek a hearing.
However, the Staff presently contemplates consideration of the facility in the operating license proceeding.
III.
CONCLUSI0N Based on the foregoing, the Staff recommends the following:
To the extent that CAND acknowledges that it does not have the discovery responses sought by the NRC Staff, the NRC Staff accepts CAND's statement.
Mith respect to CAND's motions, the Staff would urge that its motion (petition) to insti tute a separate proceeding with respect to the Part 70 license contemplated for this facility be denied as CAND has failed to
.state how its interest would be affected by the issuance of the Part 70 license.
Nor is discretionary intervention appropriate in the circumstances of this case.
With respect to CAND's motion that this Hoard institute an inquiry wi th respect to the storage of lo<<-level radioactive waste at the facility, the Staff would urge that this motion be denied because the relief sought has, in effect, already been granted by this Board's admission of J
Contention ll in the operating license proceeding.
llith respect to CAND's motion that public hearings be conducted at a
number of locations throughout Pennsylvania, the Staff would support such a motion only to the extent that such public hearings are held in the vicinity of the plant and are consistent with an expeditious processing of this proceeding.
Respectfully submitted,
.J'-fl. L ~;,-
Jessica H. Laverty Counsel for NRC Staff Dated at Bethesda, Maryland this 16th day of April, 198.
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 CERTIFICATE OF SERVICE I hereby certify that cooies of "NRC STAFF
RESPONSE
TO CITIZENS AGAINST NUCLEAR DANGERS STATEMENT ON INTERROGATORIES AND MOTIONS BEFORF. THELICENSING BOARD",
dated April 16, 1981, 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 through deposit in the Nuclear Regulatory Commission's internal mail system, this 16th day of April, 1981:
James P. Gleason, Chairman Administrative Judge 513 Gi lmoure Drive Silver Spring, Maryland 20901
'U 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 Si lberg, Esq.
Shaw, Pittman, Potts and Trowbridge 1800 M Street, N.W.
Washington, D.C.
20036 Bryan A. Snapp, Esq.
Pennsylvania Power
& 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, RDn4 Mountain Top, Pennsyl,vania 17120 Mr. Thomas J. Halligan Correspondent:
CAND P. 0.
Box 5
Scr'anton, 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. Huclear Regulatory Commission Washington, D.C.
20555
- b1r. Tnomas S. Moore, Administrative Judge Atomic Safety and Licensing Appeal Board U.S. t/uclear Regulatory Commission Washington, D.C.
20555
- Atomic Safety 6 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 8 Service Branch Washington, D.C.
20555 Susquehanna Environmental Advocates c/o Gerald Schultz, Esq.
P.O.
Box 1560 Wilkes-Barre, PA 18703 f1r. Robert M. 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 NRC Staff
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