ML20012E686
| ML20012E686 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 03/28/1990 |
| From: | Woodhead C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#290-10156 OLA-2, NUDOCS 9004060114 | |
| Download: ML20012E686 (12) | |
Text
-
(p) 3 o
3' ny L
DOCKETED y
USNRC-UNITED: STATES OF AMERICA
% - mR 29-A10:02 NUCLEAR REGULATORY COMISSION
{
BEFORE THE COMMISSION-QFrlCE OF SECilETARY 4'-
90CKEllNG A siifvict b.,:n BRANCH-IO
.In the Matter'ofL Docket No. 50 440 0LA - 2.
Ec
-THE: CLEVELAND ELECTRIC ILLUMINATING COMPANY. ET AL.
-(Perry. Nuclear Power Plant, NRC STAFF RESPONSE T0 PETITION TO INTERVENE FILED BY OHIO CITIZENS'FOR RESPONSIBLE. ENERGY
'i,-
id 1
5'.
Colleen P. Woodhead Counsel for NRC Staff a-
. March.28, 1990 o
} S07 u
.1,
,J
0:
- c 4
r a
j UNITED STAT 75 0F AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE' COMMISSION In the Matter of Docket No. 50 440 0LA THE CLEVELAND ELECT.IIC ILLUMINATING COMPANY, ET AL.
~(Perry Nuclear Power Plar.t.
)
i NRC STAFF RESPONSE TO PETITION T0 INTERVENE FILED BY OH:0 CITIZENS FOR RESPONSIBLE ENERGY 7
i i
l
['
l.
Colleen P. Woodhead-
?
Counsel for NRC Staff 11
' March 28, 1990 L
l
.c 4-t UNITEDLSTATES OF' AMERICA
. NUCLEAR REGULATORY COMMISSION i
BEFORE THE COMMISSION In the Matter of
'E THE CLEVELAND ELECTRIC Docket No. 50-440-OLA
^
(Perry Nuclear Power Plant, Units 1 and 2)
NRC STAFF RESPONSE TO PETITION TO INTFRVENE FILED BY OHIO CITIZENS FOR RESPONSIBLE ENERGY-I.
INTRODUCTION By petition dated March 8,1990, the Ohio Citi7 ens for Responsible l
Energy =(0CRE) asked for a hearing concerning-a recent notice of proposed q
amendn.ont to the license for the Perry Nuclear Power Plant (PNPP). The Staff asks that the petition be denied for failure to establish an
-injury-in-fact and for failure to describe an aspect of the proceeding which could be litigated.
II. BACKGROUND l
OCRE asks for a hearing on a proposed amendment for the PNPP license L
which would transfer cycle-specific core operating limits and other L
cycle-specific fuel information from the Technical Specifications for the
- PNPP license,to the " Core Operating Limits Report" in the Plant' Data Book..
This proposed amendment was described in a Federal Register Notice on l:
- February 7,1990 and an opportunity for hearing was' provided.
(55 Fed.
R3 4282).
In the Federal Register Notice, the Staff proposed a "no v
w y
. i significanthuards"determinationfortheamendment.1/
OCRE's petition F
is submitted in response to this Federal Register Notice.
' ~
III.
DISCUSSION f ',
A.
Standards for Intervention A person seeking to intervene in a Commission proceeding must satisfy the. requirements of 10 C.F.R. 6 2.714. A petition for leave to intervene must set forth with particularity the petitioner's interest in the proceeding and how the interest will be affected by the results of the proceeding.
10 C.F.R. 6 2.714(a)(t). A petition must state the reasons petitioner should be allowed to intervene and the specific aspects of the subject matter of the proceeding as to which petitioner wants to inter-vene.
Id..-The burden of meeting these requirements is on the petitioner.
1 Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit 2),
LBP-87-2,25NRC32,34-35(1987). A petitioner must address the criteria of 10 C.F.R. 6 2.714(a)(2). These criteria are:
(1) The nature, of the' petitioner's right under the Act to be made a party to the proceeding.-
(2) The nature and extent of the petitioner's property,.
financial, or other interest in the proceeding.
(3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
1/
The Staff notes-that this amendment is an implementation of the
~
Commission's Technical Specification Improvement Progre described and published for' coment at 52' Fed. Reg. 3788, February 6,1987.
>4
J
~
3 The petition also must set forth at least one valid contention and-its supporting bases, although this requirement need not be met when the petition is'.first filed.
See 10 C.F.R. 6 2.714(b). Judicial
..~
. concepts of standing are used to determine whether a petitioner has;
' - sufficient interest' to intervene in a proceeding. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).'Toestablishstandingtointervenethepetitionermustshowthat the action sought in the proceeding will cause an injury in. fact, and that the injury is within the zone of interest protected by the Atomic Energy Act of 1954, as amended or the National Environmental Policy Act. Ld.at 613-614; Niagra Mo, hawk Power Corp. (Nine Mile Point Nuclear Station,' Unit 2),LBP-83-45,18NRC213,215(1983).
In addition, the petitioner must establish (a) that petitioner personally has suffered or will suffer a -
distinct and palpable harm that constitutes an injury-in-fact, (b) that the injury can be traced to the challenged action, and (c).that the injury is likely to be remedied by a favorable decision. Dellums v. NRC, 863 F.2d 968, 971 (D.C. Cir.1988); See Nuclear Engineering Co., Inc. (Sheffield, Illinois-Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743'(1978).
A petitioner also must have a "real stake" in the outcome of the proceeding to establish injury in fact for standing.
Houston Lighting
_ and Power Co. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 447-448(1979). A petitioner's stake need not be a substantial one, but merely direct or genuine,
- d. at 448.
An alleged injury to the health and safety of a petitioner residing near a reactor has been found to be sufficient to establish standing to
.x intervene.
Philadelphia Electric Co. (Limerick Generating Station, Units c
i x r 1 and 2), LBP-82-43A, 15 NRC 1423, 1434-1435 (1982). A petitioner may base standing upon a showing that his or her residence is within the geographical zone which could be affected by a nuclear accident.
South Texas, supra, 9 NRC at 443-444.
Residence within a 50-mile radius of a s
q nuclear power plant, however, is not always sufficient to establish standing to intervene.
Boston Edison Co.
(Pilgrim Nuclear Power Station), LBP-85-24, 22 NRC 97, 98-99, aff'd on other grounds, ALAB-816, 22 NRC'461 (1985). The nature of the proceeding will be considered by a Board in a determination of standing to intervene and a Board will apply a different standard in proceedings which involve construction permits and operating licenses than in license amendment proceedings. Jd.
A
,s petitioner residing near a reactor is not required to establish a causal relationship, weli-founded in fact, between an immediate or threatened
. injury and.the action at issue in the proceeding, although the petitioner
~should link the harm to the proposed action.
Virginia Electric and PowerCo.(NorthAnnaNuclearPowerStation, Units 1and2),ALAB-522,9 NRC 54, 57 n.5 (1979). A petitioner may not assert the rights of third-
?
parties as a basis for intervention. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 387, aff'd, ALAB-470, 7 NRC 473 (1978); See 10 C.F.R. 9 2.713(b).
An organization may establish standing through the interest of its
. members or on its own.
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-7, 25 NRC 116,118 (1987). An organization 1.,
must have a "real stake" in:the outcome of the proceeding, and show an y1 injury-in-f;r.t within the protected zone of interest. South Texas, supra, 9 NRC at 447. An organization may meet the injury-in-fact test in two 9
y 7,
~
p 4,-
ways:
it may (1) show an injury to its organizational interest, or (2) allege its members are suffering an immediate or threatened injury due to the challenged action. Vermont Yankee, supra, 25 NRC at 118. An l
a.
organization cannot establish independent standing to intervene in a g
licensing proceeding merely by asserting it has an interest in a proceeding. Puget Sound Power and Light Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), LBP-82-74,.16 NRC 981, 033 (1982).
l l '
When an organization esteblishes standing through the interest of its-members, the name and address of at least one affected member, who wishes _
to be represented by the organization, must be provided.
Vermont Yankee, supra, 25 NRC.at 118-119. An affidavit should bc submitted which 1n'dicates that the member wants the organization to-serve his or her 1
-interests in a representative capacity. Duquesne Light Co. (Beaver Giley Power Station, Unit 2), LSP-84-6, 19 NRC 393, 411 (1984). An.crgani: W on
[
has standing to intervene when its petition is signed by an officer of the i
organization who has:the_ required personal interest for intervention.
Consolidated Edison Co. of New York (Indian Point, Unit No. 2) and-
,Pgwer Authority of the State of New York (Indian Point, Unit No. 3),
L LBP-82-25,15NRC715,728-729,734-736(1982). The Commission's i
L
_ regulations do-not permit the organization to represent the interests of persons who are not members. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit'1), LBP-77-11, 5 NRC 481, 483 (1977); See 10 C.F.R. 5 2.713(b).
8.
OCRE has not met the injury-in-fact requirement of 10 C.F.R. 6 2.714 of the Commission's Regulations V,
OCRE recites sufficient information to establish an interest in the proceeding through the n9arby residence of its members and authorization a
?'.
l f
1.
of one member to petition in this proceeding. Petition at 2-3.
However.
OCRE has not satisfied the " injury-in-fact" requirement of 10 C.F.R.
i 2.714, because it has failed to allege an injury that would result 7
from the proposed licensing action. All OCRE intends to pursue in this proceeding is a legal issue of a right to a future hearing concerning possible future changes to the information in the Plant Data Book which might affect OCRE's interest.
Petition at 4.
OCRE asserts-it would have
- no legal mechanism for participating in "significant changes in cycle-specific plant operations" since they will not be subject to hearing rights under the Atomic Energy Act once this information is removed from the Technical Specifications. M. However, OCRE agrees with the Staff's proposed finding that the proposed amendment involves no significant hazards and is purely an. administrative matter. M.
Thus, OCRE raises no prospect of any injury-in-fact resulting from this proposed amendment.
For this reason OCRE's petition should be denied.
C.-
OCRE'has not satisfied the aspect requirements of 10 C.F.R.
$-2.714 of the Commission's Regulations In OCRE's petition, no perceived aspect within the scope of the proposed amendment is described. The only' issue OCRE wishes to litigate p'
is a possible future event outside the scope of the proceeding encompassed
~ by the Federal Register Notice.
Indeed, OCRE has not even claimed that a-L possible future event could be within the scope of the pending proceeding, t
but merely-that OCRE wishes to participate in any future changes to the cycle-specific information which might be made. Thus, there is nothing raised in the petition which could possibly be litigated, since it is I,
- impossible to know whether OCRE would ever disagree with possible future
> l. 3 I
p --
--7 changes'..Moreover, OCRE agrees that the amendment under consideration and the subject of this proceeding-is purely an administrative matter which involves no significant hazards consideration. Petition, at 4.
As to OCRE's speculative interest'in future events OCRE is not
. deprived of a_ hearing right.
The Connission's provision for public'.
~
participation.and hearing outside the licensing and enforcement actions' encompassed by Section 189a of the Atomic Safety Act is provided by -
10 C.F.R. l'2.206. This regulation allows the public to petition for action and/or hearing on any matter which could affect the interest of l
I the'public. Therefore, 0CRE's claim that there'is no legal mechanism for participating in future changes in the PNFP cycle-specific plant i
operations is incorrect.
Indeed, OCRE has availed itself of the i 2.206 provisions in the past and is quite familiar with this procedure. 2/ In sum, OCRE has not. raised an issue regarding this proceeding but only speculates as to future events.
IV. CONCLUSION Although OCRE has shown potential standing by nearby residency, OCRE l
has not shown how its' interest could be adversely affected by the results
]
of this proceeding or any specific aspect of _the subject matter of this l
'1 l
V i
l s
2/
See: DD-83-17, 18 NRC 1289 (1983); DD-84-23, 20 NRC 1549 (1984);
~
E 85-14, 22 NRC 635 (1985); DD-86-4, 23 NRC 211 (1986); DD-89-3, 29 j
NRC 365 (1989).
i L
s
.l
t proceeding as to which OCRE wishes to intervene, as required by 10 C.F.R.
$2.714(a)(2). Thus, OCRE has not met the requirements for intervention-and no hearing should be granted.
Accordingly, for the reasons stated, OCRE's petition to intervene and request for hearing should be denied for
.failurestocomplywith10C.F.R.l2.714(a)(2).
Res ectfully submitted,)
2 ag m_
__ _ -,__g Colleen P. Woodhead Counsel for NRC Staff Dated at Rockville, Maryland this 28th day of March, 1990.
j t 4 i
T 3
1
.e-r a
P
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
> In the Matter of Docket No. 50-440-OLA O THE CLEVELAND ELECTRIC ILLUMINATING COMPANY,'ET AL.
(Perry Nuclear Power Plant, NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter, in accordance with l 2.713(b),
10-C.F.R., Part 2,'the following information is provided:
l' Name:
Colleen P. Woodhead 1i Address:
U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C.
20555 f
Telephone Number:
(30)492-1525 Admissions:
Supreme Court of1 Texas U.S. Court of Appeals in the District of Columbia The Supreme Court of the-United States Name of Party:
NRC Staff Respectfully' submitted, l'
Colleen P. Woodhead Counsel for NRC Staff Dated at -Rockville, Maryland l
.this 28th' day of March, 1990 l
l a^
t-
[i' a
' "Q
!:0LMETED USNRC 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
,, ggg BEFORE THE COMMISSION 00Mfif hCfi
~
ll,,
L THE CLEVELAND ELECTRIC Docket No. 50-440 *i>
l' (Perry Nuclear Power Plant, Units 1 and 2)
)
l L
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO PETITION TO INTERVENE FILED BY OHIO CITIZENS FOR RESPONSIBLE ENERGY AND A NOTICE OF APPEARANCE" 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 Comission's internal mail system, this 28th day of March,1990:
Atomic Safety and Licensing Board Atomic Safety and Licensing Panel (1)*
AppealBoard(5)*
l U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission
' Washington, D.C. 20555-Washington, D.C.
20555 Bruce A...Berson Office of the Secretary
- Regional Counsel U.S. Nuclear Regulatory Commission 11 USNRC, Region 'III Washington, D.C.
20555 799 Roosevelt Road Attn: Docketing and Service Section Glen Ellyn, Illinois 60137 Adjudicatory File *
-Jay Silberg Atomic Safety and Licensing Board Shaw, Pittman, Potts & Trowbridge
- U.S. Nuclear Regulatory Commission 2300 N. Street, N.W.
Washington, DC 20055-Washington, DC 20037
-Susan Hiatt Ohio Citizens for-Responsible Energy 8275 Munson Road
i.
' Mentor,- Ohio 44060 tk Colleen P. Woodhead Counsel for NRC Staff
-