ML19332D953
| ML19332D953 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 11/30/1989 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Saporito T ADVANCED ELECTRONICS CORP., AFFILIATION NOT ASSIGNED |
| References | |
| CON-#489-9532 CLI-89-21, OLA, NUDOCS 8912060073 | |
| Download: ML19332D953 (8) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
'89 ND'l 30 P3 :44 i
COMMISSIONERS
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Kenneth M. Carr, Chairman
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Thomas M. Roberts y.u.
Kenneth C. Rogers James R. Curtiss
. SE%'ED NQV 3g gg l
In the Matter of I
Docket Nos. 50-335 FLORIDA POWER AND LIGHT COMPANY 50-389 l
(St.Lucie, Units 1and2)
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i MEMORANDUM AND ORDER CLI-89-21 i
I.
Introduction.
This matter is before the Commission on a request for a hearing and petition to intervene by Mr. Thomas J. Saporito, Jr. (" petitioner"), on behalf of himself and the Advanced Electronics Corroration, regarding a request by i
Florida Power and Light ("FPL" or " licensee") for an exemption from one of the Consnission's regulations at the St. Lucie facility. After due consideration, we deny the request because the petitioner has not demonstrated a cognizable interest that could be addressed in any proceeding.
II.
Factual Background.
On February 3,1988, FPL filed an application for an exemption from the i
i requirements of 10 C.F.R. Part 20, Appendix A, footnote d-2(c), dealing with the use of " protection factors" in respirators used by workers in radioactive 8912060073 891130 PDR -ADOCM 05000335 8
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v environnents. Briefly, the requested exemption would ellow FPL to take credit for a " protection factor" when using a " sorbent," 1.e., a chemical absorbent, in an air-purifying respirator in an atmosphere contaminated with a radioiodine gas or vapor. FPL workers would then use air-purifying respirators in place of either supplied-air or self-contained respirators in those areas where airborne f
levels of radiciodine necessitate respiratory protection.
In its reauest for the exemption, FPL argued that the air-supplied apparatus can limit a worker's efficiency because the worker is restricted to the reach of the air supply hose.
The self-contained apparatus is usually very heavy and cumbersome with a limited air supply, making wearers less mobile and less efficient in performing their duties. Air-purifying respirators, however, are lighter and (according to FPL) their use would reduce the workers' physical effort and time spent in the work area, thereby reducing the workers' occupational exposure.
The requested exemption is necessary if FPL is to use this type of respirator because the Commission's regulations provide that "[n]o allowance is to be made for the use of sorbents against radioactive gases or vapors." See 10 C.F.R. Part 20, Appendix A., footnote d-2(c) (1989).
Therefore, FPL submitted test data to the NRC Staff demonstrating that a particular brand of sorbent-containing, air-purifying respirators, the SCOTT 631-TEDA-H canister, provided a protection factor of 50 during continuous use for more than 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> E
in a specified environment of radio 19 dines in gaseous or vapor form.
See 54 Fed. Reg. 32545-46.
FPL argued that this data satisfied the requirements for Commission authorization of the use of this equipment in the absence of normal t
certification.
S_e_e_ 10 0.F.R. $ 20.103(e). Thus, FPL requested an exemption under 10 C.F.R. I 20.501 allowing the use of that particular brand of respirator with its tested "sorbents."
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L The NRC Staff reviewed the request and supplemental filings by FPL and detemined that granting the exemption would not have a significant impact on the human environment. Therefore, the Staff published an " Environmental Assessment and Finding of No Significant Impact" in the Federal Register, 54 Fed. Reg. 31902 (Aug. 2, 1989). The " Environmental Assessment" did not contain a " Notice of Opportunity For A Hearing," which is published when Comission regulations provide the opportunity to request a hearing regarding the proposed action under the Atomic Energy Act. The Staff then made a finding that granting the exemption would not result in any undue hazard to life or property. See 10 C.F.R. I 20.501. Accordingly, the Staff granted the requested exemption and published notice of that action in the Federal Register.
54 Fed. Reg.32545(Aug.8,1989).
On August 14, 1989, the Comission received Mr. Saporito's petition.
Mr. Saporito alleges that he (and the Advanced Electronics Corporation) resides in Jupiter, Florida, approximately 40 miles from the St. Lucie facility, and that he "otherwise use [ sic] and enjoy [ sic] a geographic area within the immediate vicinity of the St. Lucie nuclear power plants...." Petition at 1-2.
He further alleges that he is "an appropriate party to represent the interest of persons similarly situated and those persons currently employed by the licensee whose interests might otherwise go unrepresented." Petition at 2.
Mr. Saporito then alleges that granting the exemption would (1) " result in a substantial increase in the amount of low-level solid waste due to the disposal of used sorbent canisters," (2) " result in the [FPL] employees being subjected to a much higher possibility and risk of internal radioactive contamination," (3) "most likely increase the individual or cumulative occupational radiation exposure... by increasing worker time spent in radiation areas," and (4) "most likely increase the employee's risk to heat 3
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stress effects due to the loss of the cooling effect from the forced air respi rators. " Petition at 3.
i Finally, Mr. Saporito argues that if he were permitted to intervene, he "would [ attempt to] address... the following issues:" (1) any risk of health and safety to the FPL employees; (2) the increase in low-level waste generated by FPL; (3) the validity of the justification for the exemption offered by FPL; (4)thevalidityoftheNRCStaff'sdetermination;and(5)theNRCStaff's L
allegcd failure to consult with any other agencies or persons in their consideration of the exemption.
Petition at 3-4.
FPL and the Staff have responded, urging that we deny the petition to intervene.
Both FPL end the Staff argue that we should deny the petition because neither the Atomic Energy Act nor NRC regulations provide an opportunity to request a hearing on an exemption from the Commission's regulations. The Staff also asserts that procedural requirements for institution of a hearing have not been met.
We address these arguments in the analysis that follows.
III. Analysis, j
A.
Hearing Richts 1
As we noted in Carolina Power & Licht Co. (Shearon Harris Nuclear Power i
Plant),CLI-86-24,24NRC769,774(1986),"[e]venifSection189aofthe Atomic Energy Act required an adjudicatory hearing on this exemption request
..., threshold procedural requirements for institution of a hearing would still have to be met." Since, as we will discuss below, the petitioner has
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failed to demonstrate compliance with the basic procedural requirements for a hearing, we need not, and once again do not, reach and address the broader l
question as to whether the Atomic Energy Act establishes the right to request a i
hearing on exemptions in the first place.
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B.
Procedural Requirements for a Hearing Initially, the petitioner fails to satisfy the Comission's " interest" requirements. We have consistently applied " contemporaneous judicial concepts" of standing to determine whether a petitioner has a sufficient interest in a proceeding to be entitled to intervene as a matter of right.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610,614(1976); Metropolitan Edison Co.
'*hree Mile Island Nuclear Station, Unit 1),CLI-83-25,18NRC327,332-33(l'3).
"Those concepts require a showing that (a) the action will cause ' injury in fact' and (b) the injury is arguably within the ' zone of interests' protected by the statutes governing that proceeding." 18 NRC at 332.
In this case, the exemption at issue deals with the protection of workers in the plant, not protection of the general public.
In other words, those individuals affected will be workers in the plant, not members of the general public. The petitioner is not a worker at the plant and has not alleged an
" injury in fact" which he may suffer as a result of the Commission decision in this case.
Moreover, the petitioner must himself fulfill the requirement for standing; he may not derive standing from the interests of another person or organization, Detroit Edison Co. (Enrico Femi Atomic Power Plant, Unit 2),
i ALAB-470, 7 NRC 473, 474-75 and n.1 (1978); Tennessee Valley Authority (Watts i
l Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418,1421 and n.4 (1977), or represent them without express authorization. Houston Lighting & Power Co.
(Allens Creek Nuclear Generating Station, Unit 1) ALAB-535, 9 NRC 377, 394-400 (1979). Thus, absent some express authorization, the petitioner cannot 5
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represent FPL employees in the plant, especially since they have not indicated i
any intent to intervene in opposition to this exemption themselves.I Finally, the petition is not saved by its reference to the potential for the creation of additional low-level waste in the fonn of used sorbent canisters. See Petition at 3.
It is true that in the past, we have held that living within a specific distance from the plant is enough to confer standing g
on an individual or group in proceedings for construction permits, operating
' licenses, or significant amendments thereto such as the expansion of the capacity of a spent fuel pool. See g, Viroinia Electric Power Co. (North Anna. Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54 (1979). However.
those cases involved the construction or operation of the reactor itself, with clecr implications for the offsite environment, or major altentions to the facility with a clear potential for offsite consequences. See, n,
i Gulf States Utilities Co. (River Bend Station Units 1 and 2), ALAB-183, 8 AEC 222,226(1974). Absent situations involving such obvious potential for offsite consequences, a petitioner must allege some specific " injury in fact" which will result from the action taken:
here, the granting of the exemption.
In this case, the petitioner has not alleged any " injury in fact" which he will suffer because of the accumulation of used sorbent canisters at the plant.
Thus, we find that he has not satisfied the Consnission's " interest" requi rements.
IAdditionally the petition does not directly address the three factors of 10 C.F.R. 6 2.714(d) as required in 6 2.714(a)(2).
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IV. Suma ry, i
In sumary, we find that the petition fails to meet the threshold i
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standards for instituting a proceeding under the Comission's regulations.
Therefore, we need not determine whether the petitioner has raised a " material issue of fact" regarding the factual deteininations underlying the granting of the exemptions, or reach the generic question of whether Section 189a of the Atomic Energy. Act provides the opportunity to request a hearing on a proposed
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exemption from a Comission regulation.
Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-86-24, 24 NRC 769; 774-75 (1986), aff'd ab, nom. Eddleman v. NRC, 825 F.2d 46 (4th Cir.1987). Accordingly, the request for hearing and petition for leave to intervene is denied.
It is o ORDERED.
r The C ssion j
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i SAMUEL J. CHILK
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Secretary of t e Comission l
Dated at R lle, MD this ifay of November, 1989.
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We emphatically reject the licensee's suggestion that the Comission cannot revoke an exemption. See FPL Response at 4 If the Comission has authority to grant an exemption, it certainly has authority to revoke that exemption.
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b UNITED STATES OF AMEk!LA NUCLEAR REGULATORY COMMISS!ON f
f
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In the Matter.of l-3 I
FL0RIDA POWER AND LIGHT COMPANY )
Docket Nos.: 50-335 h
l 50 309
- (St. Lutte, Units 1 and 2
)
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GCBIIEICeIE.QC.tEBVICE I hereby certify that cooles of the foregoing MEMORANDUM AND ORDER (CL1-09 21) have been served upon the following persons by U.S. mant, in accordance with the requirements of 10 CFR Section 2.712.
Michael A. Bauser, Esq.
thoess J. Saporito, Jr.
Harold F. Reis. Esq.
1202 Sioux Street u
Newman & Holttinger, P.C.
Jupiter, Florida 33450 1615 L Street, NW Washington, DC 20036 Richard J. Goddard U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Regional Counsel, Region !!
Board Panel 101 Marietta Street, Suite 2900 U.S. Nuclear Regulatory Commission Atlanta, Georgia 30323 Washington, DC 20555 Patricia Jehle Atomic Safety and Licensing Appeal Office of the General Counsel Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555
&h Office i the Secretary of the Commission Dated at Rockville, Maryland this 30th day of November 1909 m