Text

NRC Staff Response in Opposition to Petition to Intervene Filed by Environmental Conservation Organization on Proposed License Amend.Petition Should Be Denied Based on Listed Reasons.W/Certificate of Svc
	ML20024F832
Person / Time
Site:	Rancho Seco
Issue date:	12/05/1990
From:	Barth C; NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	;
References
	CON-#490-11127 OLA, NUDOCS 9012260197
	Download: ML20024F832 (26)
	v • d • e

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DOCKET NUMBER

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PROD. & UTIL FAC,59.r.30.B.:.M- \\ B

' UNITED STATES OF AMERICA M, t ne NUCLEAR REGULATORY COMMISSION U*C

'90 DEC -5 P 4 Z4 -

BEFORE THE COMMISSION

, rcra mi icnv

-In the Matter of

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. SACRAMENTO MUNICIPAL UTILITY

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Docket No. 50 312 DISTRICT

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_(Rancho Seco Nuclear Generating-

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Station!

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NRC STAFF RESPONSE IN OPPOSITION TO PETITION TO INTERVENE FILED BY THE ENVIRONMENTAL CONSERVATION ORGANIZATION ON PROPOSED LICENSE AMENDMENT i

3-l-:

Charles A. Barth Counselfor NRC Staff (y

f December 5,1990 9012260197 901205 ADOCKOSOOg2 DR l-

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TABLE OF CONTENTS l

4 INTRODUCTION 1

B A CK G R O UN D.............................................

2 i

1 l

DI S CU S SI ON.............................................. - 2 1.

-Standing.........................................

2 L

a.-

Legal Standards Governing Standing..................

2 l

b.

Petitioner's Lack of Requisite Interest to Confer Standing...

5 i

l' L

2.

The Underlying Matter Petitioner Seeks To Raise Is Not Germane To This Proceeding.

9 3.

Petitioner May Not Raise Matters Which Are Beyond y

The Scope of The Proceeding..........................

11 1

4.

A "No ESignificant Hazards Determination" Is Not Subject to-Li tiga t io n...... -................................._.

14 CONCLUSION 18 l

l

6

s-i-

I t

.il.

t TABLE OF AUTHORITIES COURT CASES Belotti v. NRC, 725 F.2d 1380 (D.C.Cir.1983).....................

12 Dellums v.- NRC, 863 F.2d 968 (D.C.Cir.1988).....................

4 Gage v. AEC, 479 F.2d 1214 (D.C.Cir.1973)...................... 11 i

NRDC v. EPA, 822 F.2d 104 (D.C.Cir.1987)......................

11 Sierra Club v. Morton, 405 U.S. 727 (1972)......................

4,5 San Luis Obispo Mothers for Peace v. NRC,

- 799 F.2d 1268 (9th Cir. 1989)...............................

14 Warth v. Seldin, 422 U.S. 490 (1975)..............,,...........

4

\\

-ADMINISTRATIVE DECISIONS Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB.328, 3 N RC '420 (1976)......................................

6 Boston Edison Co. (Pilgrim Nuclear Power Station), CLI 8216,16 NRC 44 (1982) 12 Commonwealth Edison Co. (Carroll County Site),

ALAB 601, 12 NRC 18 (1980).............................. 11-Detroit Edison Co. (Greenwood Energy Center, Units 2 and 3), ALAB 376, 5 NRC 426_(1977)..........................

8 Florida' Power and Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI.89 21, 3 0 N R C 3 25 _ ( 1989) -,. -...................................

3,7-Houston Lighting & Power Cc. (Allens Creek Nuclear Generating Station, Unit 1), ALAB.535,

_9 NR C 377 (1979).. -.....................................

4 c

Houston Lighting & Power Co. (South Texas Project, Units -1 and 2), ALAB.549, 9 NRC 644 (1979)...................

4

- lii -

-/Gmscs Gas and Electric Co. (Wolf Creek Generating

- Station, Unit 1), ALAB-424, 6 NRC 122 (1979)..,.

8 1

-Long Island Lighting Co. (Shoteham Nucleat Power Station, Unit 1) CLI.90 08,32 NRC (October 17, 1990)................................

10,1 1,13,18 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CL183 25,18 NRC 327 1983)................... 11 Nonhern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB 619,12 NRC 558 (1980)....,........

11,14 Northern States Power Co. (Pathfinder Atomic Plant),

j LBP 89 30 30 NRC 311 (1989).............................

8 2

Nuclear Engineering Co. (Sheffield, Illinois Ixw Level R "cactive Waste Disposal Site)

ALAB 473, 7.

' M ' ( 19 78)...........................

4,6,8,9 Nuclear Engineering Co. (Sheffield, Illinois

-Imw Level Radioactive Waste Disposal Site)

ALAB 606,12 NRC 156 (1983) 11 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLl 8612, 24 N R C 1 (1986)...................................... 14,17 Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2) ALAB 789, 20 NRC 1443 (1984)....................

7 Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), LBP 82-43A,15 NRC 1423 1982).............,....

4 Ponland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), ALAB 333, 3 NR C 804 ( 1976)........ -............................... - 8 Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),CLI-76-27, 4 N R C 610 (1976).....................................

3,4 Y

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and_2) CLI 84 06, 19 NRC 975 (1984)......................................

7

- IV -

Public Senice Co. of Oklahoma (Black Fox Nuclear Power Station, Untis 1 and 2), LBP 7717, 5 N R C 65 7 (1977)....................................... 8 Puget Sound Power & Light Co. (SkagitlHanford Nuclear Power Plant, Units 1 and 2), LB 82 26, 15 NRC 742 (1982).....................................

8 Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413,5 NRC 1418 (1977) 8 11'ashington Public Power Supply System (WPPSS Nuclear Project No.1), ALAB 771,19 NRC 1183 (1984)................... 7 11'isconsin Electric Co. (Point Beach Nuclear Plant, Units 1 end 2), ALAB 739,18 NRC 335 (1983)................

12,14 STATUTES Atomic Energy Act, 42 U.S.C. ! 2011, et eq.................... passim Atomic Energy Act, i 189, 42 U.S.C. { 2339......................

14 Atomic Energy Act, Q 189a, 42 U.S.C. 6 2239(a)(1).,..............

2,3 Public Law 97-415 5 12, 96 Stat 2073 (1983),...................

14,16 REGULATIONS 10 C.F.R. 2.105........................................

11 10 C.F.R. I 2.105(a)(4)(i).................................

14,15 10 C.F.R. Q 2.714 (a)...................................... 11 10 C.F.R. f 2.714 (a)(1).............................

3 10 C.F.R. s 2.714(a)(2)................................ 3,9,11,13 10 C.F.R. 5 2.714 (d)(1)....................................

3 10 C.F.R. 6 50.58(b)(6)................................

14,15,16 10 C.F. R. G 5 0. 82........................................

18

ov.

10 C.F.R. 6 5 0.91........................................ 15 10 C.F.R. G 5 0.92........................................

15

^

10 C.F.R. 9 5 0.9?(c)......................................

2 hilSCELLANEOUS 48 Fed. Reg.14873 (April 6,1983)........................

14,15,16 1

51 Fed. Reg. 7744 (March 6,1986)........................

15,16,17 1

53 Fed. Reg. 24024 (June 27,1988) 18 55 Fed. Reg. 36249 (September 5,1990).......................... 1 55 Fed. Reg. 41280 (October 10, 1990) 2,13,19

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION in the Matter of-

)

SACRAMENTO. MUNICIPAL UTILITY

)

Docket No. 50 312 DISTRICT

)

)-

(Rancho Seco Nuclear Generating

)

Station)

)

NRC STAFF RESPONSE IN OPPOSITION TO PETITION TO INTERVENE FILED BY-THE ENVIRONMENTAL CONSERVATION ORGANIZATION ON PROPOSED LICENSE AMENDMENT INTRODUCTION On November 8,1990, the Environmental Conservation Organization (ECO) filed a Petition For Leave To Intervene And Request For Prior Hearing (Petition) requesting

'a hearing in connection with the Sacramento Municipal Utility Distric's (SMUD) request for a license amendment dated April 26, 1990 to modify the Rancho Seco Nuclear Generating Station (Rancho Seco) operating license to a possess but not operate status

-(" possession only license").

Although originally published in the Federal Register on September 5, 1990,1 that notice contained an inadvertent eraraneous paragraph and several typographical errors.

Therefore, the SMUD application of April 26,.1990 was re noticed in the Federal Register -

.SMUD's application was imtially noticed in the Federal Register on September 5, 1990 '(55 Fed. Reg. 36249). - ECO filed a petition to intervene with the Commission on

-September 17,1990. The Staff responded in opposition on October 2,1990. NRC Staff

-Response To Petition To Intervene-on Proposed License Amendment Filed By-.the

. Environmental Conservation. The ECO and Staff filings are still before the Commission.

Organization.

on October 10, 1990 (55 Fed. Reg. 41280). This staff response is to ECO's petition in response to the re noticed request for license amendment. However, the SMUD April 26, 1990 request has not changed or been modified and is the identical amendment request to which ECO responded on September 5,1990.

BACKGROUND Based on a public referendum conducted in June 1989, SMUD has decided permanently to cease operations at the Rancho Seco station. S:nce December 8,1989, the reactor has been defueled and the reactor fuelis currently stored in the on site spent fuel pool. Tb proposed amendment would modify the license to a possess but not-operate status. As set forth in the Federal Register notice of October 10,1990, the NRC Staff proposed to determine that the amendment involved no significant hazards consideration under the standards set forth in 10 C.F.R. s 50.92(c) (55 Fed. Reg. 41280).

For the reasons set forth below, the Staff opposes the Petition.

DISCUSSION 1.

Standing a.

Legal Standards Governing Standing Under the Atomic Energy Act and the Commission's regulations, only persons whose interest may be affected by a proceeding are permitted to intervene. As stated in Section 189a of the Atomic Energy Act:

In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control,... the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to the proceeding.

_m___

-_m.___

_ ?

42 U.S.C. 6 2239(a)(1) (emphasis supplied). According to the Commission's regulations, petitions to intervene may be filed by "any person whose interest may be affected by a l

proceeding." 10 C.F.R. f 2.714(a)(1).2 Further, such petitions must:

set forth with particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to intervene, with particular reference to the factors in paragraph (d)(1) of this section, and the specific aspect or aspects of the subject matter of the proceeding as to wbich petitioner wishes to intervene.

I 10 C.F.R. Q 2.714(a)(2) (emphasis supplied).

In determining whether a petitioner has sufficient interest in a proceeding to be entitled to interven as a matter of right under the Atomic Energy Act, judicial concepts of standing are applied. See, e.g., Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89 21, 30 NRC 325, 329 (1989), Metropolitan Edison Co.

l (Three Mile Island Nuclear Station, Unit 1), CLI 83 25,18 NRC 327 (1983), Portland General Electric Co. (Pebble Springs Nuclear Plant, Uaits 1 and 2), CLI 76 27, 4 NRC l

610 (1976). The Commission has held thtt these judicial concepts require a showing l

l (a) that the action will cause " injury in fact," and (b) that the injury is " arguably within 2 10 C.F.R. s 2.714(d)(1) provides that, in considering petitions for leave to intervene, L

the Commission or presiding officer shall consider, among other matters, the following l

factors:

l.

(i)

The nature of the petitioner's right under the Act to be made a party to l

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 that may be entered in the proceeding on the petitioner's interest.

the zone of interest" protected by the statutes governing the proceeding. TAfl,18 NRC at 332; Pebble Springs, 4 NRC at 613.

Further, in order to establish standing, the petitioner must show (1) that he has personally suffered a distinct and palpable harm that constitutes injury in fact; (2) that the injury fairly can be traced to the challenged action; and (3) that the injury is likely to be redressed by a favorable decision in the proceeding.

Dellums v. NRC, 863 F.2d 968, 971 (D.C. Cir.1988).

Cf. Nuclear Engineering Co.

(Sheffield, Illinois, I.ow 1.evel Radioactive Waste Disposal Site), ALAB-473,7 NRC 737, 743 (1978) ("Sheffield") (there must be a concrete demonstration that harm could flow from the result of a proceeding).

Whea the petitioner is an organization, it may meet the injury in fact test for standing either by demonstrating an effect upon its organizational interest or by alleging that its members, or at least one, may suffer immediate or threatened injury. Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB 549, 9 NRC 644, 646-47, citing Warth v. Seldin, 422 U.S. 490 (1975); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A,15 NRC 1423,1437 (1982), citing Siena Club v. Aforton 405 U.S. 727 (1972).

In order to make the requisite showing as to the latter factor, the. organization must provide identification of at least one member who will be injured, a description of the nature of the injury, and an authorization for the organization to represent the individual. Houston Lighting aruf Power Co. (Allens Creek Nuclear Generating Station, Unit 1), AIAB 535, 9 NRC 377,390-96 (1979).

In light of the foregoing principles,it is evident that ECO does not have standing to intervene.

As discussed-in detail below, ECO has not set forth the requisite particularized interest in the challenged amendment or adverse impact on its interests, or those of its members, which would result from the action involved. An application of

5 the above principles to the ECO's Petition demonstrates that the Petition should be c.1 denied.

b.

Petitioner's I.ack of Requisite Interest to Confer Standing Petitioner, after a lengthy preface, states its interests to intervene as: (1) "a small organization whose members are concerned about misunderstandings of scientific and

'1 technical issues which have permeated the debate about Rancho Seco and nuclear power;"

3 and (2) representative of members who live within 50 miles of Rancho Seco who have an interest "in the radiologically safe and environmentally benign operation of Rancho Seco to provide them with reliable electricity and to avoid substitution of fossil fuel plants" which it is alleged would contribute to emironmental damage, "the national trade deficit and endugerment of nationa) energy security." Petition at 20-21. It is further alleged in regard to standing that ECO's members who live within 50 miles of Ranch Seco are concerned about (1) the possible affect on their radiological health and safety of the. proposed amendment, (2) the goals of NEPA being met and (3) their dependence on the owner of Ranch Seco to meet their energy needs at reasonable rates without the adverse affects of air pollution. - Petition at 22.

First, it has been established that an organization's academic interest in a problem, such as ECO's concern about " misinformation about' scientific and technical issues"

~ surrounding Rancho Seco and nuclear power, do not provide r. basis for standing. As stated in Sierra Club v. Monon, 405 U.S. 727, 739-40, (1972):

I L'

... a mere interest. in a problem," no matter how-longstanding the interest and no matter how qualified the 3The Petition, at 2122, speaks of ECO members who live within the Rancho Seco emergency planning zone (EPZ), It is not stated whether these members live within the 50 miles ingestion pathway zone or the 10 miles plume exposure zone.

1 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 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 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.

The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor Nes it prevent any public interests from being protected through the judicial process. It does serve as at least a roagh attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the ou.come. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process. The principle that the Sierra Club would have us establish in this case would do just that. [ Footnote omitted)

Consistent with the foregoing, in Allied General Nuclear Sen> ices (Barnwell Fuel Receiving and Storage Station), ALAB 328,3 NRC 420,422 (1976), intervention by the American Civil Liberties Union to present information on civil liberties issues allegedly involved in the proceeding wv. denied, in Sheffield,7 NRC at 741743, intervention of the Chicago Section of the American Nuclear Society, "an organization of professionals interested in the optimum development of nuclear science and technology for the benefit of mankind," was denied for failing to show that it might be adversely affected by the proceeding invoMng a low level waste facility. Here, ECO does not show that it, as an organization, would suffer concrete harm from the amendment and may not be permitted

i 7

to intervene to protect organizational interests in educating the public in regard to nuclear power and Rancho Seco.

Nor is there any showing of protected interests of the named member of the petitioner organization which would allow the organization to intervene to protect their interest. Just the fact that a member might live proximate to a nuclear plant is not sufficient to confer standing. One must show that he would sustain " injury in fact" by the proposed amendment and be in " zone of interest" protected by relevant statutes. St.

Lucic, supra. Here the Petitioner has not shown that its members would be adversely affected. There is no description of any effect on the members' radiological health and safety that could be caused by the proposed " possession only" amendment. No possibility of offsite radiological consequences is cited and no other allegation of harm alleged to be within the zone of interest protected by the Atomic Energy Act is set forth.

The allegations of environmental, economic or other harm do not show either the possibility of any particularized injury or any injury within the " zone of interest" protected by relevant statutes. General economic concerns such as a facility's impact on utility rates or the local economy fail to provide an adequate basis for intervenor standing; such economic concerns should more appropriately be raised before state economic regulatory agencies. Public Service Co. of New Hampshire (Seabrook Station, Unit 2), CLI 84 6, 19 NRC 975,978 (1984); Washington Public Power Supply System (WPPSS Nuclear Project No.1), ALAB-771,19 NRC 1183,1190 (1984); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB 789,20 NRC 1443,1447 (1984). Impact on a ratepayer's economic status is insufficient to support standing to intervene because concern about rates is not within the scope of interests protected by the Atomic Energy Act. Kansar Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-424,

8-6 NRC 122,128 (1977); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB 413,5 NRC 1418,1420-21 (1977); Detroit Edison Co. (Greenwood Energy Center, Units 2 and 3), ALAB 376,5 NRC 426 (1977); Public Sen* ice Co. of Oklahoma (Black Fox Nuclear Power Station, Units 1 and 2), LBP 77-17,5 NRC 657 (1977). Nor is the economic interest of a ratepayer within the zone of interests protected by NEPA.

l Portland General Electric Co. (Pebble Springs Nuclear Plant. Units 1 and 2), ALAB 333, 3 NRC 804 (1976). Similarly, a taxpayer's economic interest is not within the zone of l

interests sought to be protected by either the AEA or NEPA.

Watts Bar, supra at i

1421, Northem States Power Co. (Pathfinder Atomic Plant), LBP 89 30,30 NRC 311,315 (1989).

Concerns expressed by ECO regarding the national trade deficit (Petition at 2) and national energy security do not fall within the ambit of the AEA or NEPA, nor are l

these concerns relevant to the issuance of a possession only license for Rancho Seco.

A mere academic interest (Petition at 20) or an organizational interest in a problem does not confer standing. See Sheffield, 7 NRC at 741-43. Some injury that has or will l

occur from the action contested in the proceeding, here the license amendment, must be alleged. See Puget Sound Power and Light Co. (Skagit/Hanford Nuclear Powec Project, Units 1 and 2), LBP-82-26,15 NRC 742, 743 (1982).

In its petition to intervene, ECO states that it is concerned with the environmental and radiological implications of the decision of SMUD to terminate operation of the Rancho Seco nuclear reactor (Petition at 18-21).

In ECO's view, renewable energy

-sources are unlikely 'o make up the capacity SMUD will need in the future and the only remaining option will be units fueled by natural gas, of which a substantial portion may be combustion turbirn s. Id.

ECO believes that utilization of natural gas will have 1

l

9*

adverse emironmental and economic effecte which should be considered by the NRC in L"

an Emironmental Impact Statement (EIS) before issuing a possession only license since the license would permit SMUD to take actions which would make future operation of

~

the reactor infeasible. Id.

ECO's concerns do not constitute the type of interest required by 10 C.F.R. 6 2.714(a)(2) as they would have no particularized effect on ECO as an organization or 0

any of.s members. Rather, they are merely statements of broad public concerns which, the-Commission held in TAfl, do not qualify a petitioner to intervene in NRC proceedings. As the Commission said in that case:

[A]ssertions of broad public interest.. do not establish the particularized interest necessary for participation by an individual or group.in agency adjudicatory processes. Cf, e.g., Sierra Club v. Aforton, 405 U.S. 727 (1972).

Although the Commission, like other federal agencies, has an obligation to further the general interests in good government and the economical use of resources which have been espoused by the petitioner, this agency's specific mandate is to protect the public health and safety under the Atomic Energy. Act and to-consider a_ d weigh emironmental matters under the n

National Environmental Policy Act (NEPA) in our licensing and regulatory actions. -

18 NRC at 332 (footnote omitted). See also Sheffield, supra. Thus, concerns which affect the public in general, such as those espoused by ECO, are not -sufficient to establish standing to intervene, i-ECO's petition sets forth only generalized interest-in problems concerning the availability of energy resources, economics and-the environment. It does not set forth the. concrete " injury in fact" to a. member or to the organization itself which is necessary Lto-establish entitlement to intervene in an proceeding or any right to a hearing. See Sheffield, 7 NRC at,' 743. For 'that reason, the Petition should be denied, n

2.

The Underlying Matter Petitioner Seeks To Raise Is Not Germane To This Proceeding.

i 10 -

The. gravamen of the Petition is to have the NRC consider, in connection with the subject application for a possession only license, whether the Rancho Seco plant-should be operated. As the Petition states:

4 The proposed amendment would nullify almost all of the presently applicable license conditions and Technical Specifications pertaining to operation and thereby open the door for further maintenance neglect and active 6ecommissioning. The NRC, however, has not yet issued a final decision on whether or not the facility should be rendered inoperative. In these circumstances, the Commission certainly has the power and the duty to prevent a particular licensee from taking steps which effectively undermine the safety and feasibility of operation.

Petition, at 25, see also id, at 13, 17 18, 34,-37 38.

In Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

CLI 90-08 32 NRC (October 17,1990), the Commission determined that a licensee -

is legally entitled under the Atomic Energy Act and our regulations to make, without any NRC approval, an

-irrevocable decision not to operate [a licensed nuclear plant].

' The alternative of ' resumed operation'_ 'or other methods of generating electricity - are alternatives to the decision not to operate [the nuclear plant) and thus are beyond Commission consideration.

Slip op. at 8-(footnote:omitted.) The Commission further stated that "because we have

. no authority to mandate operation of the facility, we have no authority over the decision whether Lto decommission the facility." Slip op. at 9 n.4.

Therefore, : it-ha been

-determined that the Commission cannot mandate _ resumed operations and has no--

authority lto decide whether:to decommission a licensed plant, the Commission has no authority to_ grant the relief sought by th'e Petitioner, the Petition should be dismissed as seeking relief beyond of the authority of the Commission.

4 N

^.,,

Further, the Commission stated in CLI 90-08 "that alternatives to the decision not to operate the plant are beyond the scope of our review and need not be considered

- under NEPA.*

Slip-op. at 910. Therefore, to the extent Petitioners seek to have considered any alternative concerning operation of Rancho Seco (see Petition at 24 29, 37 38), they have been foreclosed by CLI 90-08.d 3.

Petitioner May Not Raise Matters Which Are Beyond The Scope of The h g eeding.

Pursuant to 10 C.F.R. f 2.714(a)(2), a petition to intervene must set forth "the aspect or aspects of the subject matter of the proceeding as to.which petitioner wishes to intervene "

The subject matter of an NRC proceeding is limited to the matters encompassed in the Notice of Opportunity for Hearing published in the Federal Register, (see 10 C.F.R. Ef.2.105, 2.714(a)), and one may not intervene to litigate other matters..

See, e.g., Metropolitan Edison Co. (Three Mile Island Nuclear Station,- Unit 1), CLI 83 25, 18 NRC 327, 33132 (1983) (qualification of a Commissioner not germane to facility restart proceeding); Northern Indiana Public Service Co. -(Bailly Generating Station,

= Nuclear 1),' ALAB-619,12 NRC 558, 565 (1980) (notice of application to extend construction permit does _ not allow litigation of health and safety issues generally);

- Commonwealth Edison Co. (Carroll County Site),; ALAB 601,12 NRC 18, 24 (1980)

-(notice of application for early site review does not allow litigation of issues not germane to that review). In Wisconsin Electric Co. (Point Beach Nuclear Plant, Units 1-and 2),

dAncillary action _in later approving a method of decommission does not turn a non Federal action into a " Federal action." - See CLI 90-08, slip op. at 9 n.4. Nuclear-Engineering Co.-(Sheffield, Ill., Low Level Radioactive Waste Disposal Site), ALAB 606, 12-NRC 156,16163; (1983): Gage v. A.E.C., 479 F.2d 1214, ~1220 n.19 (D.C. Cir.1979);

NRDC v. E.PA,- 822 F.2d 104,103 (D.C. Cir.1987). Cf Petition, at 34. See CLI 90-08, slip op. at 9, n.4.

ALAB 739,18 NRC 335, 339 (1983), the Appeal Board emphasized that a Licensing Board considering a license amendment only has jurisdiction to consider matters germane to the license amendment and may not consider other matters which petitioners might wish to raise. It stated:

In a license amendment proceeding, a licensing board has only limited jurisdiction. The board may admit a party's issues for hearing only insofar as those issues are within the scope of matters outlined in the Commission's notice of hearing on the license action.

Ponland General Electric Co.

(Trojan Nuclear Plant), ALAB 534, 9 NRC 287, 289 n.6 (1979); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB 316,3 NRC 167,170-171 (1976). See Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB 616,12 NRC 419, 426 (1980).

(footnote omitted)

In Point Beach, the proposed amendment prosided for the repair of steam generator tubes by sleeving and the operation of the facility with sleeved tubes.

Contentions relating to general adequacy of the steam generator tubes and the public health and safety were held to be beyond the jurisdiction of the Licensing Board absent a basis to believe that the proposed repair alone would cause untoward safety consequences that would not otherwise be present.5 Here, the amendment proposed by SMUD is limited to modifying the Rancho Seco full power operating license to permit SMUD to possess, but not operate, the facility (a possession only license). 55 Fed. Reg. 41280.

5Similarly, one may not intervene in an enforcement action without showing its interests would be adversely affected by the action. "The scope of the action initiated by the Com. mission may be limited and defined by the Commission." Boston Edison Co.

(Pilgrim Nuclear Power Station), CLI 8216,16 NRC 44, 45 (1982), affinned sub nom.

Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir.1983). There, the Commission limited the issues to whether the facts in the enforcement order were true and whether the remedy was supported by those facts. Other concerns and the need for stronger action were viewed as beyond the scope of the proceeding. Id. at 46.

l

13 -

The petition herein is not focused upon the health and safety or emironmental g-aspects of the possession only license amendment application (which is the subject of this proceeding), but upon the determination not to operate Rancho Seco, decommissioning of the facility and the need for an emironmental statement looking at the alternative of the resumed operation of Rancho Seco. See, e.g. Petition at 5, 7, 9,17-18, 25 27, 30. An E

examination of the " aspects" on which Petitioner seeks to intervene further confirms that E

it is not any harm which might be caused by a possession only license which concerns petitioners, but it is the fact that Rancho Seco will not operate. See Petition at 3138.

The Commission has made clear in Shoreham, CLI-90-08, that a decision to terminate the operation of a nuclear plant (in situations such as this) is committed to the discretion of the licensee, and that the speculative alternative of resumed operation need not be considered. Shoreham, slip op. 710. Matters such as those the Petitioner seeks to have considered may not be the subject of NRC proceedings. Id.

As Petitioner is not concerned with matters related to the health, safety or environmental affects of the proposed possession only license amendment, but with matters not subject to NRC review or not reasonably within the scope of the proposed action, the Petitioner has not set forth an " aspect or aspects of the subject matter of the proceeding as to which it wishes to intervene," and its petition may not be granted.

10 C.F.R. G 2.714(a)(2).6

'ECO seeks to raise issues concerning safe operation of Rancho Seco at full power and concludes that full power operation would not be safe if certain parts of the amendment request were granted and full power operation permitted (Petition at 25 and 26). However, the license amendment sought is not one for permission to operate at full power, but one for possession only, and the purported concerns related to full power operation are not germane to the requested amendment and may not be considered. See, e.g., Point Beach, supra; Bailly, supra.

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[

4.

A "No Significant Hazards Determination" is Not Subject to Litigation.

ECO also apparently seeks to litigate the Staffs no significant hazards consideration (NSHC) determination (Scc Petition at 2,6, and 40 5 7). Such litigmion would be contrary e the Commission's regulations and thus involve an issue that is 7

inappropriate for consideration in a licensing proceeding 10 C.F.R. 50.58(b)(6);

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

CL1-8612,24 NRC 1,4 (1986), reversed in pan on other grounds, San Luis Obispo Mothers for Pcace v. NRC, 799 F.2d 1268 (9th Cir.1986).

Public Law 97-415 512,96 Stat. 2073 (1983), amended section 189 of the /ttomic Energy Act,42 U.S.C. 6 2239, to provide:

(2)(A) The Commission may issue and make immediately effective any amendment to an opvating license, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person. Such amendment may be issued and made immediately effective in advance of the holding and completion of any required hearing.

In determining under this section whether such amendment involves no significant hazards consideration, the Commission shall consult with the State in which the facility involved is located. In all other respects such amendment shall meet the requirements of this Act.

(B) The Commission shall periodically (but not less frequently than once every thirty days) publish notice of any amendments issued, or proposed to he issued, as provided in subparagraph (A). Each such notice shall include all amendments issued, or proposed to be issued, since the date of publication of the last such periodic notice. Such notice shall, with respect to each amendment or proposed amendment (i) identify the facility 7"The Commission wishes to state in this regard that any question about [the) staffs determinations on the issue of significant versus no significant hazards consideration that may be raised in any hearings on the amendment will not stay the effective date of the amendment." Statements of Consideration on Notice and State Consultation (regarding the Commissions' regulations and procedures on prior notice and issuance of operating license amendments).

48 Fed. Reg. 14873,14876, April 6,1983; see 10 C.F.R.

s 2J05(a)(4)(i).

I 1

15 -

involved; and (ii) provide a brief description of such amendment. Nothing

]

in this subsection shall be construed to delay the effective date of any amendment.

(C) The Commission shall, during the ninety day period following the effective date of this paragraph, promulgate regulations establishing (i) standards for determining whether any amendment to an operating license involves no significant hazards consideration; (ii) criteria for providing or, in emergency situations, dispensing with prior notice and reasonable opportunity for public comment on any such determination, which criteria shall take into account the exigency of the need for the amendment involved; and (iii) procedures for consultation or any such determination with the State in which the facility involved is located.

]

Pursuant to this grant of authority, the Commission adeted 10 C.F.R. $$ 50.91, 50.92,50.58(b)(6) and 2.105(a)(4)(i) under which license amendments might be granted which involve NSHCs and limited review of such determinations. Notice and State Consultation,48 Fed. Reg.14873 (April 6,1983); Final Procedures and Hazards on No Significant Hazards Consideration, 51 Fed. Reg. 7744 3arth 6,1986). Under these regulations, where it is determined that a license amendment request involves N9.iC, the NRC will issue a notice which describes the requested amendment, sets forth the proposed NSHC finding, requests comments on that proposed finding, and gives notice of an opportunity for hearing. If requests for hearing are filed pursuant to such notice, the NRC will make a final determination on whether the amendment involves a significant hazards consideration.

If the final determination is that the proposed amendment involves NSHC, the NRC may (upon making the requisite health and safety findings) issue the requested amendment despite the pendency of a hearing request.

l Any hearing on the amendment would be held after the amendment is issued and effective.

l 16 The regulation adopted pursuant to section 12 of Public Law 97-415 further explicitly provides that one may not petition to have an NRC Staff NSHC determination reviewed. 10 C.F.R. 5 50.58(b)(6) provides:

(6) No petition or other request for review of or hearing on the Staffs significant hazards consideration determination will be entertained by the Commission. The Staffs determination is final, subject only to the Commission's discretion, on its own initiative, to review the determination.

ML20024F832

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