ML20006C502
| ML20006C502 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 01/10/1990 |
| From: | Frantz S FLORIDA POWER & LIGHT CO., NEWMAN & HOLTZINGER |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20006C496 | List: |
| References | |
| OLA-5, NUDOCS 9002080140 | |
| Download: ML20006C502 (32) | |
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UNITED STATES OF AMERICA DOMETED NUCLEAR REGULATORY COMMISSION USNRC 90 JW 12 A8:24
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In the Matter of ) (PM
) Docket Nos. SOM.E.0F SECRETARY QiNG 4 'i[ny;ct FLORIDA POWER & LIGHT COMPANY ) 50-25pRANCH j
)
(Turkey Point Plant, ) ;
Units 3 and 4) )
)
LICENSEE'S ANSWER IN OPPOSITION TO REQUEST FOR HEARING AND PETITION FOR TIAVE TO INTERVENR _-
I. Introduction i
On December 27, 1989, the Nuclear Energy Accountability Project (NEAP) and Thomas J.-Saporito, Jr. (collectively : referred j to as " Petitioners") filed a " Request for Hearing and Petition for Leave'to Intervene" (" Petition") with respect to certain !
proposed amendments to the. operating licenses-for Turkey Point i
Nuclear Power Plants, Units 3 and 4, noticed'in-54 Fed. Reg.
50295 (December 5, 1989). Florida Power & Light Company ("FPL" or " Licensee") hereby files this answer in opposition to the ,
Petition, i
The proposed. amendments in~ question would replace the current custom Technical Specifications-for the Turkey Point nuclear units with a set of technical specifications-based on the i Westinghouse Standard Technical Specifications. This change is in accordance "with the NRC and industry initiative to standardize and improve" technical specifications for nuclear j l
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plants. SAR 54 Fed. Reg. at 50295. This change also reflects more than three years of effort by.FPL and the NRC Staff to upgrade the Turkey Point technical' specifications.
The proposed Technical Specifications consist of hundreds of pages of requirements governing operation of Turkey Point. Most of the proposed' changes in the Technical Specifications are editorial in nature, a g , changes to conform with the format of the Westinghouse Standard-Technical Specifications. Other proposed changes would impose more stringent requirements on operation of. Turkey Point. Finally, in some cases, the proposed changes would relax existing 1
l requirements or relocate existing requirements from the Technical l Specifications to other contro11ed' documents.
As discussed below, the Petitioners' request for.
hearing on the proposed amendments does not satisfy the applicable standards for such a request.- Accordingly, the Petition should be denied.
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II.
The Petitioners Mave Not Errnnstrated Standina Under 10 CFR S 2.714,.a person who desires to intervene-
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in an NRC proceeding is required to identify an interest that would be affected by the proceeding. Specifically, 10 CFR S:
2.714 (a) (2) states:
The petition shall set forth with particularity the interest of the petitioners in the proceeding, how that interest may be affected by the results of the
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proceeding, including the reasons why petitioner should ;
be permitted to intervene, with particular reference to the factors in paragraph (d) of this section, and the specific aspect or aspects of the subject matter of the -- i proceeding as to which petitioner wishes to intervene.
i Similarly, 10 CFR S.2.714 (d) (1) states that the NRC will ;
consider the following factors in ruling on a petition for leave ,
, to intervene-or a request for hearings- :
(1) The nature of the petitioner's-right under the Act to be made a party to the proceeding. - '
(ii). The nature and extent of the petitioner's property, financial, or other interest in the-proceeding.
(iii) The possible effect of.any order which may be -
entered in the proceeding on the-petitioner's interest.
The commission has held that, in determining whether a person has an interest which may be affected by-a proceeding;
" contemporaneous judicial concepts of standing should be used."
Portland General Electric Co. (Pebble Springs. Nuclear Plant, -
Units 1 and 2),.CLI-76-27, 4 NRC 610, 614 (1976). To have standing, a person must allege that he will' be injured-in fact as-
- a. result of the proceeding and that his interests fall within the i zone of interests protected by applicable statutes.1/ Pebble r
Sprinos, supra, 4 NRC at 613-14; Public Service Co. of" Indiana b
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Y Licensee is aware that, in some. circumstances,; intervention 4 in NRC' proceedings maytbe granted'as a matter of' discretion (Ama,~.e g.,-Pebble Springs, supra, 4 NRC-at 616), but does-not believe such a grant would be appropriate here. In'any-
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q event, Petitioners have not requested such intervention.
Consequently, Licensee has not addressed the' issue in this ,
pleading. If so directed, the Licensee would be preparedito address the issue in detail.
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i (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI 10, 11 NRC 438, 439 (1980).
In order to establish " injury-in-fact" for standing, a petitioner must have a real stake in the outcome of the proceeding. Houston Lighting and Power Co. (South Texas Project,:
Units 1 and 2), LBP-79-10, 9 NRC 439, 447-48, affid, ALAB-549, 9 NRC 644 (1979). Although residence within 50 miles of a plant-i
.has been held sufficient to establish standing to assert safety questions, residence more than 75 miles from a plant will not alone establish an interest sufficient for standing as a matter of right. Compare Tennessee valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 n.4 (1977) gith I
Dairyland Power Cooperative (Lacrosse Boiling Water Reactor),
L ALAB-497, 8 NRC 312, 313.(1978). i For the reasons discussed below, each Petitioner has failed to satisfy these requirements. Therefore, the Petition should be denied.
- i L A. The Petition-Does Not Contain Enough Information to L Determine That Mr. Saporito Has sufficient contacts Within n- i Fifty Mile Radius of Turkey Point Mr. Saporito resides at 1202 Sioux Street, Jupiter, '
Florida 33458. Jupiter is located north of Palm Beach and is more than 100 miles from Turkey Point, which is located south of Therefore, Mr. Saporito's
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Miami near Homestead, Florida.
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residence is not within the 50-mile zone of interest and is not i I
sufficient to confer standing to intervene. .
l The Petition states that Mr. Saporito " works in-and about the city of Miami as an Instructor in the field of Digital l l
Electronics and Microprocessor and he is also the Execut'ive Director of NEAP and regularly travels to-Miami, Florida." The l i Petition further alleges that these activities place Mr. Saporito "within the NRC ' Zone of Interest' on a regular basis of 5 to 6-days per week." (Petition, pp. 2-3).
These statements are marked by their lack of specificity. Additionally, these statements appear to_be inconsistent with other statements made by the Petitioners in'the past. For examples Although the Petition states that Mr. Saporito works in Miami as an " instructor",'it does not
, identify Mr. Saporito's employer or. indicate l-whether this employment is full-time or only a few .
hours per week.2/ Furthermore, this statement does not appear to-be consistent with other statements made-by_Mr. Saporito. For example, as 1
recently as last August, Mr. Saporito submitted a '
petition to intervene irt a proceeding involving 2/ Similarly, although the Petition states Mr.'Saporito ,
l regularly travels to Miami as Executive Director of NEAP, it does not specify the frequency or duration of.such. visits. 1
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FPL's St. Lucie plant, which is'approximately one hundred fifty miles from Turkey Point. In that j petition, Mr. Saporito alleged that he was adversely affected by the St. Lucie plant because-he " lives, works, and owns property, real and perscnal, in and about the Town of Jupiter,
' Florida."2/ Similarly, just two months ago, Petitioners-stated that "Mr.-Saporito is the President and Chief Executive Officer of the Airflow Service Corporation:. . . whose general' purpose is to provide airconditioning treatment and cleaning services.from Palm' Beach County to.
Miami, Florida."1/
FPL recognizes that these statements might be. squared 4
with those made in the Petition and that Mr..Saporito conceivably could demonstrate sufficient contacts within,50 miles of Turkey Point-to establish that he has an-interest that may be affected On the other hand, the Petition only by this proceeding.
indicates that Mr. Saporito periodically visits Miami,,and 2/-
" Request for Hearing and Petition for Leave to' Intervene"
( August 14, 1989), page 2, submitted In'the Matter of-Florida Power & Light Co. (St. Lucie,1 Units l'and 2).
1/ ' " Clarification of Contentions and-Answer to Licensee's Response'in Opposition to NEAP /Saporito Petition'for Leave to Intervene" (November 1G, 1989), page 4, submitted In the Matter of Florida Power &-Light Co. (Turkey Point Units;3 and 4), OLA-4. f
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licensing boards have held that intermittent or occasional trips to an area within 50 miles of a plant.are not sufficient, by itself, to establish standing to intervene in a proceeding, )
involving the plant. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-79-10, 9 NRC 439, 456-457 (1979), aff'd on other grounda ALAB-549, 9 NRC 644 (1979);
Washington Public Power Supply Syntam (WPPSS Nuclear Project No.- '
2), LBP-79-7, 9 NRC 330, 338 (1979). In light of the statements.
which Mr. Saporito has made in other proceedings, Licensee i submits that, at a minimum, an evidentiary inquiry.is needed before it can be determined whether Mr. Saporito does, in fact, have sufficient contacts in the area around Turkey Point. San
! Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-78-27, 8 NRC 275, 277 n. 1 (1978) (" Standing to intervene, unlike thel '
factual merits-of contentions, may appropriately be the subject l
t of an evidentiary inquiry before intervention is granted. .
Florida Power & Light Company (St. Lucie, No. 2), CLI-78-12,.7:
NRC 939, 948-949 (June 21, 1978)."). Absent additional details regarding Mr. Saporito's employment and contacts with=the Miami.
area, the Petition should be denied.
B. The Petition Does Not Contain Sufficient Information to Determine Whether NRAD Man Standins' In order to meet the requirements for. standing, an i
" organization must show injury either to its organizational P
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interests or to the interests of members who have been authorized-to act for them." Philadelphia Electric co. (Limerick Generating [
Station,. Units 1 and 2)', LBP-82-43A, 15 NRC 1423, 1437 (1982),
citing warth v. soldin, 422 U.S. 490,-511 (1976); sierra club v.
Morton, 405 U.S. 727, 739-40 (1972).
The Petition states - that NEAP "is an environmental organization with specific and primary purposes to operate for the advancement of the environment," and that it has its principal place of business in Jupiter, Florida.. The Petition also identifies several " members" of NEAP and states that its <
members live, work, vacation, and use the ares within 50 miles of Turkey Point and could suffer severe consequences if a nuclear accident were to occur. (Petition, pp. 1-2). Neither of these statements is sufficient to establish NEAP'c standing to intervene, either on its own behalf or on behalf of its-members.5/
c The fact that NEAP is a corporation with its principal >
place of business in Jupiter does not provide it.with' standing.
1/ The Petition also claims that NEAP 1E "an appropriate party to represent the interests of persons similarly situated or whose interests might otherwise go unrepresented."
(Petition p. 2). NEAP may not attempt to intervene in order
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to represent the interests of unnamed individuals who have- ;
not authorized NEAP to intervene on their behalf. San-Detroit Edison Co. (Enrico Fermi Atomic Power ~ Plant,' Unit No. 2), ALAB-470, 7 NRC 473, 474 n.1 (1978); Tennessee .
Valley Authority (Watts Bar Nuclear Plant', Units 1 and 2), l ALAB-413, 5 NRC 1418, 1421 (1977); Long Island Lighting Co. 1 (Shoreham Nuclear ~ Power Station, Unit 1), LBP-77-11, 5 NRC 481, 483-84 (1977); Allied-General Nuclear Servicta (Barnwell Fuel Receiving and Storage Station), LBP-75-60, 2 NRC 687', 690 (1975).
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As stated above, Jupiter is located more than 100 miles from Turkey Point. Therefore, NEAP's organizational interest does not
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fall within the 50 mile " zone of interest" and does not suffice for standing to intervene.
To the extent that NEAP is attempting to intervene on its-own behalf based upon the claim that it is an " environmental-organization," intervention abould also be denied. The Supreme Court has rejected such grounds for~ standing, stating that:
_[A] mere " interest in a problem," no matter how !
longstanding the interest-and no matter how qualified the organization is in evaluating the !
problem, is not sufficient by itself to render the organization " adversely affected" or " aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations.
But if.a "special interest" in this' subject were enough to entitle the Sierra Club to commence this litigation, there would appear.to be no. objective i basis upon~which to disallow a suit by any other bona fide "special interest" organization however small or short-lived. And if any group with a bona fide "special. interest" could initiate such i I
litigation, it is difficult to perceive why'any individual citizen with the same bona fide special interest would not also be entitled-to do so.
Sierra club v. Morton, 405 U.S. 727, 739-40 (1972). This holding i is applied in NRC proceedings. Egg, 32g , Nuclear Engineering Cn (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 742 (1978); Pebble Springs, supra, 4 NRC at'613; Allied-General Nuclear Services (Barnwell' Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 421-23 (1976). '
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l Nor does NEAP meet the requirements for intervening on behalf of its members. When an organization undertakes to intervene on that basis, it must demonstrate that a member has authorized the organization to represent him or her in the J proceeding. Philadelnhia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-02-43A, 15 NRC'1423, 1437 (1982);
Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit.2), l LBP-78-37, 8 NRC 575, 583 (1978); Houston Lighting and Power Co.
(South Texas Project, Units 1 and 2), LBP-79-10, 9-NRC 439, 444, aff'd ALAB-549, 9 NRC 644 (1979). The Petition fails to do so.
It'does no more than identify four members of NEAP, who appear to reside within 50 miles of Turkey Point. However, nothing in.the Petition suggests that these individuals have authorized NEAP to represent them in this proceeding. The Petition merely states that those members "may be affected" and: promises that a f
" Statement for Permission to Represent" will be forwarded l sometime in the future. (Petition, p. 2).- Consequently, the Petition fails to establish NEAP's standing as a representative of its " members".1/
1/ On January 6, 1990, Petitioners submitted a " Statement for +
Permission To Represent," which states.that Astrid Weinkle- .
gives permission to Petitioners to " represent my interests" l in this proceeding. However,-the Statement is not in the ;
form of an affidavit, does not identify.what the interests may be, and does not specify how those interests may be .
affected by this proceeding.' Accordingly, this Statement is not sufficient to establish NEAP's standing in a representational capacity. San Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ,
ALAB-328, 3 NRC 420, 422-23 (1976).
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Furthermore, even if such " statements" should be t forthcoming in the future, it is not clear that the statements ,
would be sufficient to establish NEAP's star. ding in a !
representational capacity. Under contemporaneous judicial f concepts of standing, the mere designation of a person as u l
- j. " member" of an organization does not necessarily entitle the i
organization to represent the person's interest. In order for such representation to be sanctioned, the person must, in fact,
- possess the " indicia of membership" in the organization. For .
example, in Health Research Group. v. Kennedy, 82 F.R.D. 21, 27 ,
(D.D.C. 1979), a court held that persons, who contributed financial support to and communicated with an organization but who did not elect the board of directors of the organization or otherwise exercise any control over the organization, could not be construed as " members" for the purpose of standing.
Similarly, the U.S. Supreme Court found that an organization possessed the " indicia of membership" for purposes of standing when its " members" elected the controlling body of the organization, could serve on the body, and financed its activities. Hunt v. Washington Etate Apple Advertising ,
commission, 432 U.S. 333, 344-45 (1977). In short, to have
" indicia of membership" in an organization, the members must be able to exercise at least some control over the organization.2/
2/ One licensing board ruled that Health Research Groun should not be applied in NRC proceedings. Saa consolidate'd Edison Cn (Indian Point, Unit No. 2),-LBP-82-25, 15 NRC-715, 733-(continued...)
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, The Petition 15cks sufficient information to determine j whether NEAP's members exercise the requisite level of control l over NEAP to establish NEAP's standing to intervene.
! Furthermore, there are indications that NEAP's members do not i
exercise the requisite control. For example, NEAP's Articles of l 1
Incorporation, filed with the Florida Secretary of State, !
i designate Mr. Saporito, Rosemary Saporito, of the same address as Mr. Saporito, and George Dunbar of Tequesta, FloridaR/ as the first members of the Board of Trustees and confer upon the Board I authority to elect the President, Vice President, Secretary and .
Treasurer, and other officers of NEAP. However, the Articles of ,
Incorporation do not set forth the qualifications or rights of. !
I members. They merely state:
1 ARTICLE FIVE-MEMBERSHIP l ,
j The corporation shall have a. membership distinct !
i from the board of trustees. The authorized number and 2/(... continued) ;
736 (1982). However, on appeal, the Commission axplicitly '
declined to reach a conclusion on the correctness of this ruling. CLI-82-15, 16 NRC 27, 31 (1982). . Similarly, the Appeal Board has explicitly declined "to explore the .
question whether represential standing can be based on the '
personal interests of a mere financial contributor to the i l organization." virginia Electric and Power co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-536, 9 NRC 402, 404 n. 2 (1979). Licensee respectfully submits that the !
licensing board's ruling in Indian Point is entitled to no precedential value in light of the Commission's decision. In any event, the licensing board's ruling in Indian Point is ,
incorrect and inconsistent with the Commission's direction in Pebble Springs, supra, that contemporaneous judicial ;
concepts of standing should be applied in NRC proceedings. '
1/ Tequesta is north of Jupiter and, therefore, even further from Turkey Point than Jupiter.
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l qualifications of the members of'the corporation, the manner of their admission, the different classes of membership, if any, the property, voting and other 1 rights or privileges of members, and their liability j for dues and assessments and the method of collection i thereof, shall be set forth in the bylaws. 1 9
The bylaws are not filed with the Secretary of State and are not !
known to Licensee. Therefore, there is now nothing in the- i publicly available information which defines the degree of control, if any, that member's exercise over the organization. i However, Article Five could be interpreted to mean that NEAP-f members may not serve on the board of trustees of NEAP, which is i inconsistent with the " indicia of membership" in Hunt v.
Washington state Apple Advertising commlazion, supra.
Additionally, a flier issued by NEAP (attached) states that an individual can become a " member" of NEAP merely by contributing
$12.00, and that " membership" will entitle the person to attend .
i regularly scheduled meetings and educational seminars and to receive news letters. By negative implication, this seems to imply that members of NEAP have no voting rights, which is inconsistent with the " indicia of membership".in Hunt v.
Washington State Apple Advertising commlanion, supra. In short, it appears that a person might be able to become a " member" of NEAP merely by making a financial contribution. As indicated by Health Research Group, supra, such a contribution is not '
sufficient to establish NEAP's standing to represent its members.
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It is possible that the NEAP's members do in fact exercise control over NEAP. However, the information provided in the Petition is not sufficient to draw such a conclusion.
Therefore, absent additional details regarding the rights of a member of NEAP, the Petition should be denied.
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- c. The Petition Does Not-Establish That Mr. saporito or NEAP's ,
Members could be Adversely Affected by the Results of This !
Procandina '
Even if it is assumed that the Petitioners may be able to cure either or both of the defects discussed above, they still would not be entitled to intervene in this proceeding. ;
As discussed above, 10 CFR $ 2.714 (a)(2) allows a person to intervene as a matter of right only if he has an interest that may be affected "by the results of the proceeding."
In general, licensing boards and appeal boards have liberally construed this provision in 10 CFR S 2.714 (a)(2). For !
i example, the Appeal Board in Virginia Electric and Power Co.
i l' (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 I NRC 54, 56 (1979) stated that close proximity, in conjunction with an averment of injury from the proceeding, is sufficient to establish standing, and that a petitioner need not establish that 1
i the averment is well-founded in fact (i.e.,.a petitioner need not
! establish a causal relationship between the asserted injury and the licensing action in question). See also Armed Forces 1
l Radiobiology Renaarch Institute (Cobalt-60 Storage Facility),
ALAB-682, 16 NRC 150, 153-55 (1982). ,
i . i Although the licensing boards and appeal boards have i
liberally construed the requirements for standing, as a minimum f they have still required a petitioner to allege that he would be injured by the licensing action in question. In other words, a ,
petitioner who lives in close proximity to a nuclear plant will not be deemed to have standing unless he alleges that the ;
licensing action in question will adversely affect his interests. i For examples j
, In Nuclear Enginaaring Co. (Sheffield, Illinois l
Low-Level Radioactive Waste Disposal Site), ALAB- ;
l 473, 7 NRC 737, 741-43 (1978), an organization I with members living near and working at the site l
l was determined not to have standing to intervene in an amendment proceeding involving the site, because it did not allege that its interests or l-the interests of its members might be adversely affected if the proceeding has one outcome rather than another. And, to repeat, no such interests is to be presumed.
There must be 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 l might be, i
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- In Philadelphia Electric co. (Limerick Generating i l
Station, Unit 1), LBP-86-9, 23 NRC 273, 274-77 !
1 (1986), the licensing board stated that a l petitioner who lived 20 miles from a plant would not have standing to intervene in an amendment proceeding involving leaking instrument lines, because 20 miles is too far for any injury to 1 1
occur as a result of any leakage, j t
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1 In Boston Ediaen co u (Pilgrim Nuclear Power ;
Station), LBP-85-24, 22 NRC 97, 98-99 (1985), i affed on other grounds ALAB-816, 22 NRC 461 (1985), the licensing board ruled that a i i
petitioner who resided within 43 miles-of a plant did not have standing to challenge a change in the
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technical specifications for the plant. The board -
noted that, although operstion of the plant might l
affect the petitioner, there was no apparent scenario by which the petitioners might be !
affected by the change in the technical specifications and the petitioner did not identify :
any such scenario.
1 In summary, in order to have standing to intervene, a petitioner ,
must do more than show that he may be adversely affected by i operation of a plant; the petitioner must specify how his
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1 interests could be impacted by an outcome of the proceeding in !
i question. !
This very principle was recently reaffirmed by the !
1 Commission in a decision denying standing to Mr. Saporito in :
another proceeding. In Florida Power & Light co- (St. Lucie, ,
Units 1 and 2), CLI-89-21, 30 NRC (slip op. p. 6) (November 30, 1989), the Commission stated thatt i
It is true that in the past, we have held that living ?
within a specific distance from the plant is enough to ,
confer standing on a individual or group in proceedings j for construction permits, operating licenses, or significant amendments thereto'such as the expansion of {
the capacity of a spent fuel pool. Saa, a g , Virginia l Elmetric power co. (North Anna Nuclear Power Station, ;
Units 1 and 2), ALAb-552, 9 NRC 54 (1979). However, .
those cases involved the construction or operation of !
the reactor itself, with clear implications for the offsite environment, or major alterations to the facility with a clear potential for offsite consequences. SAS, 32g , Gulf Staten Ut111tian 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 "injur which will result from the action taken....y in fact"
- r l The Petition does not satisfy this standard. The Petition merely alleges that the Petitioners could be adversely l affected if a serious nuclear accident occurred at Turkey Point. [
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(Petition, pp. 2-3). The Petition does not allege that the '
proposed changes in the Technical Specifications at Turkey Point will cause such accidents or otherwise adversely affect :
Petitioners. Furthermore, it is not readily apparent how the .i J
proposed changes in the Turkey Point Technical Specifications I i
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could affect the interests of the Petitioners, given the fact that most of the changes are editorial in nature and do not substantively alter the requirements governing operation of Turkey Point. Therefore, since the Petitioners have not identified any specific change in the Technical specifications that could affect thair interests, they have not demonstrated their standing to intervene in this proceeding. Thus, the Petition should be denied.
III. The Petition Does Not Identify Any Specific Aspects Within The scope of This Proceeding which Petitioners Desire to Litienta Under 10 CFR S 2.714 (a)(2), a petition to intervene must identify "the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene."
The scope of aspects or issues that a petitioner may raise in an operating license amendment proceeding are more narrow and limited than the scope of issues that may be raised in construction permit or operating license proceeding. For example, in license amendment proceedings, only those issues which fall within the scope of issues-set out in the Federal i Register notice of opportunity for hearing may be admitted for litigation. Commonwealth Edison co. (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 429 (1980); Portland General Electric CQ. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289 n.6 (1979);
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4 public service ca. of Indiana (Marble Hill Nuclear Generating ]
Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976); I
' 1 Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit {
1), LBP-88-10A, 27 NRC 452, 455 (1988). Unless an issue is ;
i fairly raised by the amendment or has a nexus to the amendment, j l
i it is not admissible. commonwealth Edison co. (Dresden Nuclear I
Power Station, Unit 1), CLI-81-25, 14 NRC 616, 624 (1981);
i Vermont Yankaa Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-245, 8 AEC 873, 875 (1974); consumera Power co.
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(Big Rock Point Nuclear Plant), LBP-80-4, 11 NRC 117, 125 (1980). .
Moreover, issues in a license amendment proceeding may '
not be used as a vehicle for reconsideration of issues which were ,
previously considered by the NRC in earlier license proceedings, ,
absent any impact of the amendment on the issues in question.
San Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452, 466 (1988). As the licensing board stated in an amendment proceeding authorizing ec.wtinued .
operation of a plant pending ccrrection of-certain design
- deficiencies
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a We are not authorized to examine matters that were explored at the construction permit or operating i 4
license stages, nor can we expand the issues ,
beyond those related to the design deficiencies that resulted in the notice of hearing which described the issues we are empowered to consider.
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Portland Canaral Electric Co. (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717, 745 (1978) (footnote omitted), aff'd ALAB-534, 9 NRC 287 (1979). Numerous other cases have also applied the principle i
that an amendment proceeding is not an appropriate forum for reexamining previous NRC determinations that are not affected by l
l the amendment. Ema, a g , Florida Power & Linht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-85-36, 22 NRC [
590, 598-99 (1985) (contention related to the effects of hurricanes and tornados on a spent fuel pool is inadmissible in a spent fuel pool expansion amendment proceeding, because such effects were considered in the Safety Evaluation at-the operating license stage); consumers Power Co. (Big Rock Point Nuclear Plant), LBP-80-4, 11 NRC 117, 127 (1980) (contention related to licensee's financial ability to care for an expanded spent fuel pool is inadmissible in a spent fuel pool expansion amendment proceeding, because the licensee's financial qualifications were t
considered in granting the construction permit and operating license); Portland General Electric Co. (Trojan Nuclear Plant),
LBP-78-32, 8 NRC _413, 415-16 n.1 (1978) (contention related to r ability of a spent fuel pool-to withstand earthquake is i
inadmissible in a spent fuel pool expansion amendment proceeding, because the contention challenged the safe shutdown earthquake for the entire facility). Aspects which seek to go beyond these bounds are objectionable and inadmissible.
4 Furthermore, a plant may continue to operate even if an amendment is denied. San Consumers Power Co. (Palisades Nuclear P
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Plant), LBP-79-20, 10 NRC 108, 123 (1970). As a consequence of this fact and the principle that previous decisions may not be j reconsidered in amendment proceedings, certain types of issues are not cognizable in amendment proceedings, including issues !
1 j
related to l
l- *
- The character and competence of the licensee. l Metropolitan Edison co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-83-76, 18 NRC 1266, 1285-86 (1983).
l The original design of plant structures or systems r
I '
not directly involved in the amendment. wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-88, 16 NRC 1335, 1342 l l .
(1982).
f Prior incidents or events at a plant that have no nexus to the acceptability of the amendment..
Portland General Electric eq. (Trojan Nuclear 9
Plant), LBP-80-20, 12 NRC 77, 84 (1984)~.
The need for a safety audit of the plant. .
Portland General Electric Co. (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717, 745,(1979), aff'd ALAB-534, 9 NRC 287 (1979). "
f a
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i 1
To the extent that a petitioner desires to raise these types of
~
issues or other issuez that are outside the scope of an amendment, such issues may only be raised in the context of a petition under 10 CFR S 2.206. Saa portland canaral rimetric co.
l l
(Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n. 6 (1979).
j Such issues would include any claims that the licensee has violated NRC requirements; these issues are the subject of the
- responsibility of the NRC Staff and not the hearing boards. San Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),
LBP-78-11, 7 NRC 381, 386 (1978), aff'd ALAB-470, 7 NRC 473 (1978). j The Petition purports to identify several issues or
.I aspects that Petitioners desire to litigate. However, as i
discussed below, each of these issues is either totally lacking !
in specificity or is outside the scope of this proceeding._ l Paragraphs 5(a), 5(b), and 5(c) of the Petition merely paraphrase some of the general requirements in 10 CFR S 50.57 governing issuance of operating licenses, and make conclusory allegations that the proposed amendments do not satisfy these requirements. These paragraphs do not. identify any " specific aspect" of the proposed amendments that allegedly does not comply with these requirements. Therefore, Paragraphs 5(a), 5(b), and '
5(c) do not satisfy 10 CFR S 2.714 (a)(2).
Paragraphs 5(d), 5(e), and 5(f) of the Petition merely.
paraphrase some of the criteria in 10 CFR S 50.92(c)' defining a '
. . ~ . . - - - - - - - - --- - -- . . " - + u - --a. + . .-.n -
i i
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significant hazards consideration, and make conclusory allegations that such criteria would be applicable to the i proposed amendments. Similarly, Paragraph 6(a) of the Petition i
alleges, without elaboration, that the proposed amendments involve a significant hazards consideration. Under the i
Commission's rules, the responsibility for determining whether an amendment involves a significant hazards consideration has been delegated to the NRC Staff, and hearing boards have no authority to review such determinations. Saa 10 CFR S 50.58 (b)(6). Eaa also Pacific can and Electric co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-86-12, 24 NRC 1, 4 (1986), rev'd in part on other grounds, San Lula Obispo Mothern for Peaca v. NRC, 799 F.2d 1268 (9th Cir. 1986); Florida Power & Light Co. (St.
Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452, 456-l 57 (1988); Vermont Yankaa Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-17, 25'NRC 838, 844 (1987).
Accordingly, Paragraphs 5(d), 5(e), 5(f), and 6(a) raise an issue that is outside the scope of this proceeding. ,
Paragraphs 6(b) and 6(c) of the Petition state that Turkey Point was not designed in accordance with the standards reflected in more recent plants. In particular, Paragraph 6(b) seems to suggest that the Standard Technical Specifications are inappropriate for the Turkey Point units because of their age and design,.and Paragraph 6(c) appears to suggest that proposed deletion of some provisions in the current Technical i 1
- Specifications would enable the Licensee in the future to utilize- -
i 10 CFR S 50.59 to make changes in its practices that would be inappropriate given the existing design of the Turkey Point ,
I units. However, the Petition does not identify any proposed change in the Turkey Point Technical Specifications that would be unacceptable by reason of the design or age of Turkey Point.
i l Furthermore, it is apparent that the Petitioners are not l
concerned about the proposed Technical Specifications but instead -
are concerned about the design of Turkey Point. However, the adequacy of the Turkey Point design is outside the scope of this
! proceeding. Saa Point Beach, supra. Therefore, Paragraphs 6(b) and 6(c) do not identify any specific aspect that is cognizable l in this proceeding.
Paragraphs 6(d) and 6(e) of the Petition allege that ,
50% of the Turkey Point licensed operators failed a requalification exam in 1989 and that Turkey Point has had numerous violations of NRC requirements over the years. Based upon these allegations, the Petition concludes that there is not reasonable assurance that the Licensee will comply with either the existing or the proposed technical specifications. Neither of these paragraphs questions the acceptability of the proposed .
Technical Specifications for Turkey Point; instead, both deal with matters related to the character and competence of FPL and its history of compliance with requirements. Such issues are outside the scope of an amendment proceeding. San THI and l Trojan, LBP-80-20, supra. Furthermore, such issues in essence J
5
?
pertain to matters of inspection and enforcement, responsibility !
i for which has been delegated to the NRC Staff.1/ )
J In summary, Petitioners have not identified any !
" specific aspects" of the proposed Technical Specifications which they allege are unacceptable. Instead, Petitioners' issues i i
relate either to the adequacy of the existing design of Turkey 1
Point or FPL's ability to operate Turkey Point in a safe manner.
In this regard, Paragraph 7 of the Petition clearly indicates !
that the Petitioners are not concerned with the acceptability of the proposed Technical Specifications but only with " operation of the Turkey Point nuclear plants outside of the TS (Technical Specifications)." Such issues are not cognizable in this proceeding.
l IV. Conclusions The Petition does not demonstrate Petitioners standing to intervene as a matter of right, and the Petition does not identify any particular aspects of the proposed Technical 1/ In fact, Mr. Saporito has previously raised similar issues
- in several requests for enforcement action submitted to the
(. NRC Staff under 10 CFR S 2.206. In a decision issued on' July 12, 1989, the Director of the Office of Nuclear Reactor Regulation denied the requests, finding in part that FPL had taken steps that were expected to lead to a satisfactory training program for operators. Sag Florida Power & Light '
Co (Turkey Point Nuclear Station, Units 3 and 4), DD :
05, 30 NRC (slip op. pp. 13-14) (1989). Apparently dissatisfied with this finding, Petitioners are now inappropriately seeking review in this proceeding.
4 L
. _ , _ , ...-,%,,, - . - c -.~ e % -s w--.= e-
I Specifications that Petitioners believe are unacceptable.
Accordingly, the Petition does not satisfy the requirements of 10 CFR $ 2.714, and therefore should be denied.
Respectfully submitted, h0%
Harold F. Reis /
Steven F. Frants Newman & Holtzinger, P.C.
1615 L Street, N.W.
Washington, D.C. 20036 (202) 955-6600 Co-Counsel John T. Butler, Esq.
Steel, Hector & Davis 4000 Southeast Financial Center Miami, Florida 33131-2398 Dated this 10th day of January, 1990.
1 i
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NUCLEAR ENERGY ACCOUNTABILITY PROJECT i
1202 Slour Street + Jupiter, Florida 33458 + (407) 743 0770 Environmental Protection . Involvement + Utigation a information I.
i Slui -
1 am altases to inform you of a newly formes environmental organt sation incorporates in the State of Flertaa. The name of thte new orgentaatton to the NUCLEA@ ENERGY ACCQWNTABILITY PROJECT (NEAPI founces 'ay Mr . Thomas J. Saportte, Jr., a former nuclear werker of the '
Turkey Patnt Nuclear power plant near Miami, Flories. NEAP te neither PRQ-NUCLEAR nor ANT!-NWCLEAR and ihus matntains the completely neutral poettson of closely monitoring the operatton of all nuclear plante in Florisa.
NEAP was founded for the anytronmental purpose of t tal I nt s t ati ng and promoting research relevant to the safety.
economie, sociolegical, environmental, ana technical mattere ;
germane to the use of nuclear ans other hasareous technology.
(b) Continuously soucating and in#ceming the public of the eenefits anc risks of nuclear and other hasarcous technology, tc) Acting as a pue11c information anc resource service provtetng the punite with accurate anc current information relevant to nuclear ans other environmental matters.
(a) Analyas the imminent perile p'esed to all life forms be the pellutten of air, water. ans enti ans estatn probattve evidence on the conse4uences of such pollutton to pubits health ano safety ano the environment ans enould the riske of degeneration and extermination Decome alarming, te initiate any actions reeutree to protect the natural universe.
(a) gooneer and/or init' tate litigation warranted to protect public health and safety.*and the environment.
(f) Actively solicit thd assigtence and cooperation of all organisations, foundatione, ,,serporattene, indivtegale, and agencies, be,th public ,end. private, in pursuit of these objectives. :
(g) Solictt and accept gif tp of . money to fulfill the purposes as set forth heretn. ,,
NEAP's focus is to ensure that the nuclear power c'lants in Florida '
operate safely ang in full compliance with feeeral regulations. Since the Nuclear Regulatory Commission LNRCI S te soley respenstble for the '
safe operation of all U.S. nuclear plants, NEAP cloesly monitore the actions of tne NRC to ensure that every of# ort:1e being made to provtge for the safe operation of the nuclear plarte in Flort da. NEAP's long term oojective is to become recogntase nationally as a nuclear watcheng l agency. NERP's immediate objective to to secure the safe shut down of I the Turkey Point Nuclear plant. NEAP Detteves that the Turkey Point plant te being operate 0 un-safely and in violation of federal raculattent and NRC recut rements.
?
NEAP to aise Challenging Plertaa # ewer ans Lttht's (FPLi, reauest to the Putlic the rate severs. Service Commissten to increase the cost of electristty to NEAP talteves that a signtf tcant amount of excesstve operetton ans mai ntena nce costs securree Dy . PpL are the result of imprueent management practices at the Turkey Point Nuclear olant. NEAP eelteves that FPL rate payers. to unf airly passtng these exceastve costs on to the NEAP Dennt a newly formes Orgentiatten. nesos your yearly outport. A memberante cost of only 012.00 will enroll you as a member of NEAP. Since NEAP is 4 non-profit organtaatsen, your comatten is #wilv tax ensuettele, to offset your support ae 's member will provt os NEAP the means costs tecurras an 11ttgation. researen.
Pubite service Commisston news hearings, letters.
Nuclear Regulatory provietng tnformatton to the maata Commiesten hearings, putitshing ane holetng eeucattenal outlic seminare relates to nu: lear power gene. ration.
Please help support us. The ' owners, operatore these nuclear plants ane regulators of support, NEAP must be hele strictly accountatte can hoic the appropriate parties accountante so snet and with your these nuclear 5 power plants are operates safely ana an full compitance with feeeral regulations anc shut cown when thov are not.
Sincerely, M r Thomas J. Saporato, Jr.
. Emmeutive Director, NEAP DETACH HERE AND MAIL IN WITH .YOUR MEMEERSHIP CHECK To NEAP.
...........-....a .....
Please enroll me as a member'af NEA&. . .
amount of s12.00. Encloses is my check in sne lettera i nf ormi ng As a member, I.,will recetve regularly punitense news me about the ndslear mammer, 1 wt11 os permittee to attene r,og, plants in the U.S. , also as aularly sche educational esmanars at ,tw cost. ,. .
......-...............-- (- .
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PRINT YOUR NAME ' STREET ADDRESS r
i CITY STATE
. - - . . . . . . . . . . . . - . . - . . . . . . . ZIP CODE .-.....
MAKE YOU MEMBERSHIP CHECK OUT TO NUCLEAR ENERGY ACCOUNTABILITY PROJECT.
i
- XhliED UWRC i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION !
1() JAN 12 P1 :10
~
In the Matter of gy FLORIDA POWER & LIGHT ) Docket Nos.' N2 I k c[
l COMPANY ) 50-251 !
) i i (Turkey Point Plant, )
Units 3 and 4 )
i l
ppTICE OF APPEARAMCI OF COtnfEEL Notice is hereby given that Steven P. Frantz. enters an appearance as counsel for Florida Power & Light Company in the above-captioned proceeding. ;
Names Steven P. Frants )
l Address: Newman & Holtzinger, P.C. '
1615 L Street, N.W.
Suite 1000 Washington, D.C. 20036 Telephone (202) 955-6600
, Admissions: United States Court of Appeals for the District of Columbia Circuit Name of Party: Florida Power & Light Company Post Office Box 14000 Juno Beach, Florida 33408 8A 0 Steven P. Frantz /
Newman & Holtzinger, P.C.
1615.L Street, N.W.
Suite 1000 Washington, D.C. 20036 '
Date: January 10, 1990
l l
LarL;CD UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
% JAN 12 P1 :10 In the Matter of )
t SECRETA 6Y
}
FLORIDA POWER & LIGHT ) D o c k e t N o sI dh . @/ s'tC E 0 ( j C COMPANY ) 50-251
)
(Turkey Point Plant, )
Units 3 and 4 )
poTict OF APPEARAMcE OF COUMESI, )
i Notice is hereby given that John T. Butler enters an ;
appearance as counsel for Florida Power & Light Company in the i above-captioned proceeding.
Name: John T. Butler Address: Steel, Hector & Davis 4000 Southeast Financial Center Miami, Florida 33131-2398 i Telephone: (305) 577-2939 Admissions: Supreme Court of Florida Name of Party: Florida Power & Light Company Post Office Box 14000 Juno Beach, Florida 33408 b
Jop6 T. Butler '
Steel, Hector & Davis 4000 Southeast Financial Center i Miami, Florida 33131-2398 Date: January 9, 1990 '
4 P
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I i
POLt. LIED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'90 JAN 12 A8:24 ;
~
In the Matter of ) :
grFfC j
)
Docket Nos. 50E!N,E OF SELht1ARY FLORIDA POWER & LIGHT COMPANY
)
) 50-251
$dc3# f
)
(Turkey Point Plant, )
Units 3 and 4) ) .
camTIricATE or stavIcE I hereby certify that copies of " Licensee's Answer in Opposition to Request for Hearing and Petition for Leave to ;
Intervene" in the above captioned proceeding, together with two notices of appearance of counsel, were served on the following by '
deposit in the-United States mail, first class, properly stamped and addressed, on the date shown below.
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of the Secretary .
U.S. Nuclear Regulatory Commission '
Washington, D.C. 20555
< Attention: Chief, Docketing and Service Section (Original plus two copies Thomas J. Saporito, Jr.
Executive Director i Nuclear Energy Accountability Project i 1202 Sioux Street '
Jupiter, Florida 33458 '
Janice Moore Patricia Jehle Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 :
I
I f
John T. Butler <
Steel, Hector & Davis i 4000 Southeast Financial- Center ~
Miami, Florida 33131 j Dated this 10th day of January 1990 a 14 l Steven P. Frants I Newman & Holtsinger, P.C.
1615 L Street, N.W.
Suite 1000 Washington, D.C. 20036 l
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