ML19341D670
| ML19341D670 | |
| Person / Time | |
|---|---|
| Issue date: | 04/06/1981 |
| From: | Cyr K NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| 35-100, NUDOCS 8104080376 | |
| Download: ML19341D670 (8) | |
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UNITED STATES OF Af1 ERICA C-4P NUCLEAR REGULATORY C0tiMISSI0fl
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BEFORE THE AT0!!!C SAFETY AND LICENSING BOARD N#
In the flatter of
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Docket No.35-100(0)
ALL TELETHERAPY LICENSES
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NRC STAFF RESP 0flSE TO STATEMENT OF RESPONSE OF MC-AAPM DATED MARCH 8,1981 In response to the Director's Order of May 7,1980 nodifying the licenses of all teletherapy licensees, the Midwest Chapter of the Aneri-can Association of Physicists in Medicine (MC-AAPM), a non-licensee, E requested a hearing.
On February 25, 1981, the Staff filed a r.esponse '
before this Board to MC-AAPM's request asserting that the petitioner had not established its standing to request a hearing on the order and that consequently the request should be denied.
In a document dated March 8,1981, MC-AAPM responded to the Staff's filing.
For the reasons set forth below, the additional statements submitted by the petitioner do not alter the fact that MC-AAPM lacks the requisite standing to request a hearing on the May 7,1980 Order. Therefore the petitioner's request should be denied.
Application of " Standing" Test to Petitioner's Request for a Hearing In its tiarch 8,1981 filing, petitioner expressed concern about appli-cation of a legal " standing" test to its request for a hearing. As the 1/_
The Director's Order was ' issued to approximately 300 teletherapy licensees.
None of these licensees requested a hearing on the Order.
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. Staff noted in its previous filing, it is settled agency law that in deter-mining whether a petitioner has an interest which may be affected within the meaning of Section 189a of the Atomic Energy Act, Boards are to apply contemporaneous judicial concepts of standing.
Portland General Electric Co. (Pebble Springs fluclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610, 613-14(1976).
In reaching its decision in Pebble Springs, the Commission noted, "Our administrative process benefits from the concrete adverseness brought to a proceeding by a party who may suffer injury in fact by Commission licensing action, and whose interest is arguably within the ', zone of-interests' protected by the statutes administered by the Commission."
Id_.
at 613. That is not to say that a petitioner's request need be couched in any particular language; it need only demonstrate the requisite interest affected by the proceeding. As outlined below, MC-AAPit has still not estab-lished that it has an interest which is even arguably within the zone of interests protected by the Atomic Energy Act and which might be adversely affected by the !!ay 7,1980 Order.
'The Injuries Asserted by MC-AAP!1 Are Insufficient to Establish Standing In its supplemental filing, MC-AAPil asserts three possible injuries from the Order. The first of these asserted injuries is the possibility that "to -the extent the order is less than optinal", it may contribute to the exposure of members (of MC-AAPM) who enter teletherapy roons.
Peti-titioner appears to ' argue that to the extent that the remedial actions
I 9 ordered are not "eptimal"; that is, are not the best or most desirable that might have been chosen, they might contribute to exposures of individuals.
In other words, members of MC-AAPM might be harmed by the Director's choice of a set of remedial actions over some other, " optimal",
set of remedial actions. In all events, it is worth emphasizing that petitioner in no way can - or does - contend that the actions ordered by the Director render affected teletherapy operation any less safe than before the Order.
As the Staff noted in its previous filing, the Order does not confer standing on parties asserting injury from failure to grant different or more cptimal remedial action. 32-The Order confers standing on those parties who assert adverse effects from imposition of the ordered actions.
Public Service Co. of Indiana (Marble Hill Generating Station, Units 1 & 2),
i If, The Commission recognized in its Marble Hill ' decision that the possible outcomes of a proceeding on an Order and, thus the possible adverse impacts on a person's interest, are limited by. the scope of the issues to be considered as set forth in the Order. Public-Service Co. of Indiana, (Marble Hill Generating Station, Units 1 & 2), CLI-80-10,11 -NRC 438, 440(1980)._ In the case at hand, the scope of the hearing is limited to whether on the basis of the circumstances stated in the Order, the specified license modifications should be imposed. A hearing directed at those issues would not include consideration of more severe or different enforcement actions..
. Ct.I-80-10, 11 NRC 433 (1980); see also Nuclear Engineering Co., Inc. (Waste Disposal Site)', ALAB-473, 7 NRC 737, 743 (1978).11C-AAPf! asserts ham from failure to impose a better set of requirements. Such an assertion does not neet the injury-in-fact test and therefore fails to establish the required standing to request a hearing on this Order.
The Commission has provided other means whereby any interested person may seek renedial actions beyond those ordered by the Director. Petitions for rulemaking, under 10 CFR 2.802, or petitions for enforcement action, under 10 CFR 2.206, are the appropriate vehicles for seeking the consideration of additional or different remedial neasures.
The second injury asserted by MC-AAPM in its supplemental petition is possible harm to the professional standing of its members, because advice given by such members on matters of radiation safety may be inconsistent with the safety precautions mandated by the Order. This asserted injury fails the second part of the standing test, i.e., it does not represent an interest arguably within the " zone of interests" protected by statute; administered by the Commission.
Preservation of the professional standing of members of the itC-AAPf1 or of members of other organizations is not an interest protected by the Atomic Energy Act. This potential harn to professional status is akin to harms of an economic nature which have been held to be outside-the zone of interests protected by the Atomic Energy Act.
_See Long Island Lighting Co. (Janesport Nuclear Power Station, Units 1 & 2, ALAB-292, 2 NRC 631, 637-38 (1975).
. The third potential injury put forward by MC-AAPM is the possible criminal liability of sone of its members U who have advised licensees to re-main in operation even if such operation would be in noncompliance with the Orde r.
MC-AAPM is correct in its conclusion that anyone who willfully vio-lates or conspires to violate any provision of the Atomic Energy Act or order issued thereunder could be subject to criminal penalties.
See 42 U.S.C. 2273 (Section 223 of the Atomic Energy Act).
However, freedom fron possible criminal prosecution for willful violations of the Atomic Energy Act is not an interest protected by that statute or any statute which the Comnission administers. Standing is not conferred on persons who assert such interests.
The proper forum to defend against possible criminal liability is in the proceeding instituted to impose criminal sanctions. 3f 2]
It should be noted that even if these last two asserted potential harns (threat of crininal prosecution and loss of professional status) constituted interests protected by the Atomic Energy Act, MC-AAPM has failed to establish that persons who night suffer such harns actually exist. MC-AAPM would have had to identify at least one person who may suffer the potential ham it asserts and who has authorized the organization to represent its interests in the proceeding. Houston Lighting and Power Co. ( Allens Creek Nuclear Generating Station, Unit 1); ALAB-535, 9 NRC 377, 393-396 (1979).
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The Staff notes that any allegations of willful violations of the Atonic Energy Act are regarded by the Commission as a very serious natter.
Con-sequently, the possible violations suggested by MC-AAPM's itarch 8,1981 filing have been referred to the Office of Inspection and Enforcenent for appropriate action.
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.. CONCLUS!P1 Petitioner has not established that it has an interest which has been or may be injured by the May 7,1980 Order or which is arguably within the zone of interests protected by the At0mic Energy Act.
For the reasons stated above and in the Staff's filing of February 25, 1981, the request by MC-AAPli for a hearing should be denied.
Respectfully subnitted, f(w D.
2 Karen D. Cyr Counsel for f1RC Staff Dated at Bethesda, Md.
this 6th day of April,1981
UNITEI) STATES OF A!! ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE AT0!!!C SAFETY AND LICENSING BOARD In the Itatter of
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All Teletherapy Licenses
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NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter.
In accordance with 52.713, 10 C.F.R. Part 2, the following information is provided:
Name:
Stephen G. Burns Address:
U. S. Nuclear Regulatory Commission Office of the Executive.tegal Director Washington, D. C. 20555 Telephone Number:
(301) 492-7062 Aunission:
District of Columbia Court of Appeals Nane of Party:
NRC Staff U. S. Nuclear Regulatory Commission Washington, D. C. 20555 y
Stephen G. Burns Counsel for NRC Staff Dated at.Bethesda, liaryland this 6th day of April, 1981 F
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket No.35-100(0)
All Teletherapy Licenses
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO STATEMENT OF RESPONSE OF MC-AAPM DATED MARCH 8, 1981 and the NOTICE OF APPEARANCE FOR STEPHEN BURNS 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 Cormission's internal rail system, this 6th day of April, 1981.
Mr. Andrew C. Goodhope Dr. Kenneth A. McCollo, 3320 Estelle Terrace 1107 West Kcapp Street Wheaton, Maryland 20906 Stillwater,, Oklahoba 74074 Dr. Frederick P. Cowan 6152 N. Verde Trail Apartment B-125 Boca Raton, Florida 33433 Dr. Lincoln B. Hubbard, Chairman Legislative Committee American Association of Physicists in Medicine Box 367 Hines, Illinois 60141 Atomic Safety & Licensing Board Panel
- U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Atomic Safety & Licensing Appeal Panel
- U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Docketing & Service Section*
U. S.' Nuclear Regulatory Commission Washington, D. C. 20555 Stephen G. Burns Counsel for NRC Staff e