ML20029A016
| ML20029A016 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 01/15/1991 |
| From: | Patricia Jehle NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#191-11311 OLA-6, NUDOCS 9102010056 | |
| Download: ML20029A016 (8) | |
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00CKULO JanuaYyN15,1991 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION mn
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BEFORE THE ATOMIC SAFETY AND LICENSING BOkNI$li In the Matter of
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Docket Nos,50 250 OLA 6
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50 251 OLA 6 FLORIDA POWER AND LIGHT
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COMPANY
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(Emergency _ Power System
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Enhancement)-
(Turkey Point Plant, Units 3 and 4) )
NkC STAFF RESPONSE TO AMENDED PETITION TO INTERVENE AND REOUEST FOR RECONSIDERATION OF THOMAS J. SAPORITO. JR.
I, INIRODUCTlQN On December 26, 1990, Petitioner Thomas J. Saporito filed _ his " Reply to-Answers to Petition and Amended Petition" (hereinafter " Amended Petition") in response to the Licensing Board's Memorandum and Order of December.6,1990.
See Amended. Petition at 1.
For the reason 2 set forth below. the Petitioner's original Petition to intervene, as amended, should be denied.
II, BACKGROUND On October 25,1990, the Nuclear Energy Accountability Project (NBAP) and Thomas J, Saporito, Jr, filed a " Request for-Hearing and Petition for Leave to-Intervene" (hereinafter " Petition") in the above captioned proceeding.V The Petition l
was in response to a notice published in the Federal Reghter on September 26, I
l u NEAP filed a " Motion to Withdraw" from this proceeding on December 8,1990.
The motion was granted by the Licensing-Board on December 12,1990, and,-
therefore, Mr. Saporito is the. sole Petitioner in this proceeding.
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1990. " Florida Power and Light Co.; Consideration of Issuance of Amendments to Facility Operating Licenses and Proposed No Significant Hazards Consideration Determination and Opportunity for Hearing," 55 Fed. Reg. 39331 (September 26, 1990).
Florida Power and Light Co. (hereinafter " Licensee") filed " Licensee's Answer in Opposition to Request for Hearing and Petition for I. eave to Intervene" (hereinafter
- Licensee's Answer") on November 9,1990.
The NRC Staff filed "NRC Staff Response to Request for Hearing and Petition for Leave to Intervene of NEAP and Thomas J. Saporito, Jr" (hereinafter " Staff Response") on-November 14, 1990.
Mr. Saporito and NEAP filed a " Notice of Address Change" on November 26, 1990, _ ' another " Notice of Address Change" on December 1,1990.
On December 5,1990, the -Licensee filed " Licensee's Response to Notices of Change of Address."
The Atomic Safety and Licensing Board ' directed Petitioners to respond to the answers filed by the Licensee and the Staff on November 9,1990, and November 14, 1990, respectively Memorandum and Order (Scheduling Reply to Answers to Petition) (December 6,1990) at 2.
The Licensing Board also provided. Petitioners with an opportunity to address-the issues raised in the Licensee's response dated December 5,1990. Id.
Mr. Saporito, the sole Petitioner in this proceeding, filed his Amended Petition in response to the Licensing Board's Memorandum and Order of December 6, 1990, on December 26, 1990. See Amended Petition at 1; see also supra, n.1.
Petitioner raises three issues in the Amended Petition. First,- Petitioner argues that he has standing to intervene in this proceeding. Amended Petition at 2-4.
In l
3 addition, Petitioner requests that the Licensing Board reconsider its bar to the filing 1 of additional contentions absent a showing pursuant to '10 C.F.R. f 2.714(a)(1).-
Amended Petition at 2; see also Memorandum and_ Order (Scheduling: Reply _to Answers to Petition) (December 6,1990) at 2.' Petitioner also amends his petition to. intervene by expanding on his proposed contentions. Amended Petition at 4-7.
" Licensee's Answer to Petitioner's Motion for Reconsideration" was filed on -
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January 9,1991.
. III. DISCUSSION A. Petitioner's Amended Petition Petitioner supplements his Proposed Contentions 1 and 2 by an amendment to his Petition. Amended Petition at 4 6; see also Petition at 3-4. In supplementing those proposed contentions, Mr. Saporito alleges that the Staff has not made any emironmental determination with respect to the proposed license amendments and, 4
therefore, has not met its obligations pursuant 1010 C.F.R. 65 51.20 and 51.25 of l
the Commission's regulations. Amended Petition at 5.
On December 28,1990,-the NRC Staff issued Amendment No.138 to Facility Operating License No. DPR-31 and Amendment. No.133 to Facility Operating License No. DPR-41 for the Turkey Point Plant, Units 3 and 4,' respectively. Lette_r of G.E. Edison -to J.H. Goldberg, dated December 28,~ 1990; " Florida Power and Light Co.; Issuance.of Amendments to Facility Operating Licenses and Final Determination of No Significant - Hazards Consideration," 56 Fed.1Regi.1035 (January 10, 1990). As part of its evaluation of the amendment request, the Staff-determined that the amendments meet the eligibility criteria for a categorical a
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4 exclusion set forth in 10 C.F.R. 6 51.22(c)(9) and (10) of-the Commission's regulations.
" Safety Evaluation by the Office of Nuclear Reactor Regulation Related to Amendment No.138 to Facility Operating License No. DPR 31 and Amendment No.13[3] to Facility Operating License No. DPR-41, Florida Power and Light Company, Turkey Point Units Nos. 3 and 4, Docket Nos. 50 250, 50-251" (December 28, 1990).
Therefore, pursuant to 10 C.F.R. 6 51.22(b) of the Commission's regulations, the Staff determined that neither an environmental impact statement, nor an environmental assessment is required in connection with the issuance of the t
amendments. Id.; 56 Fed. Reg.1035. Because the Staff has in fact issued the license amendments and determined that the amendments are covered by a categorical exclusion, Petitioner's arguments in his Amended Petition are not valid, i
and in any event they fail to meet the threshold for admission of contentions under 10 C.F.R. f 2.714(b)(2) of the Commission's regulations.U In addition, the Amended Petition does not otherwise cure the deficiencies identified in the original Petition. See Sta'ff Response at 17 34; Licensee's Answer v Petitioner also alleged that he is unable to supplement Proposed Contentions 3, 4, 5, 6, and 7 because " relevant inforniation" has not been made available to l
him. Amended Petition at 6.
The Commission's regulations do not entitle a t
petitioner or an intervenor to discovery in order to formulate contentions.
10 C.F.R. f 2.714(b)(2); BPI v. Atomic Enery Commission, 502 F.2d 424,429 (D.C.
Cir.1974); " Rules of Practice for Domestic Licensing Proceedings Procedural 1
Changes in the Hearing Process," 54 Fed. Reg. 33168, 33171 (August 11,1989; see genemlly Union of Concemed Scientists v. NRC, No. 89 1617, slip op. (D.C. Cir.
November 2,1990). Mr. Saporito has not identified which " electrical diagrams, l
schematics, blu[e] prints, procedures and other information" are required to supplement his contentions.
See Amended Petition at 6.
Furthermore, Mr. Saporito has not established how this information would allow him to amend his proposed contentions to satisfy the standards set forth in 10 C.F.R. f 2.714(b)(2) of the Commission's regulations.
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at 16 29.
Petitioner does not present sufficient information in support of his L
contentions for the Ucensing Board to determine whether a genuine dispute with respect to an issue of material fact or law exists to be heard. Therefore, the Petition to intervene, as amended, should be denied.
B. Request for Reconsideration The Ucensing Board barred Petitioner from filing additional contentions in this proceeding without a showing pursuant' to 10 C.F.R. -6 2.714(a)1)- of the Commission's regulations. Memorandum and Order of December 6,1990, at 2.
Petitioner objects to that portion of the Licensing Board's Memorandum and Order of December 6,1990, contending that the Licensing Board's bar is premature and outside its authority. Amended Petition at 2. Petitioner requests reconsideration of the Board's Memorandum and Order that = bars the. filing of additional contentions except pursuant to ~ 10 - C F.R. 9 2.714(a)(1) of the Commission's regulations. Id.
In its Memorandum and Order, the Licensing Board did not rule on whether-Petitioner established standing to intervene in this proceeding. See Memorandum and Order of December 6,1990.
Instead, Petitioner was given the opportunity to respond to the Licensee's and the Staffs challenges to his standing claims,.before the Board determined the standing issue.F Id. at 2.
F The Staff will not repeat the arguments opposing Petitioner's standing claims set.
forth in "NRC Staff Response to Request for Hearing and Petition for Leave to Intervene of NEAP and Thomas J. Saporito, Jr." However, the Stail asserts that the statements made in the Amended Petition do not establish where Mr. Saporito actually resides, or allege an injury to Mr. Saporito that is within the zone of-interest protected by the Atomic Energy Act of 1954, as amended 'or the National Environmental Policy Act of 1969, as amended.
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The threshold question for the Ucensing Board at this stage of the license amendmen! proceeding is whether Petitioner has the requisite standing to intervene.
The question of the propriety of the Ucensing Board's ruling on the submission of contentions without addressing the late filing requirements need not be resolved at this point in the proceeding. Irrespective of the possible merits that Petitioner's claim might have, it is not necessary to reach the matter unless the Ucensing Board finds that he has standing te intervene in this proceeding.
IV. CONCLUSIONS The Amended Petition does not cure the defects of the original Petition.
Petitioner has not established that he has the requisite standing to intervene in this proceeding, and he has failed to set forth an admissible contention pursuant to 10 C.F.R. 6 2.714 of the Commission's regulations. Therefore, the Petition for leave to intervene and request for hearing, as amended, should be denied.
Petitioner's request for reconsideration should be defened until the Ucensing Board determines whether the Petitioner has standing to intervene in this proceeding.
Respectfully submitted, (22U Patricia Jehle Counsel for NRC Staff Dated at Rockville, Maryland this 15th day of January,1991.
UNrrED STATES OF AMERICA
, W" 4Ue NUCLEAR REuUIATORY COMMISSION IlEEO.ltE.IljE ATOMIC SAFETY AND LICENSING BOMRDtJ416 P2 :05 In the Matter of
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Dc.det Nos. 50 25' U-Oldd E $ i
)
50 251-01A4 "
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FLORIDA POWER AND LIGIIT
)
(Emergency Power System COMPANY
)
Enhancement)
)
(Turkey Point Plant, Units 3 and 4)
)
CERTIFICATE OF SERVICE I hereby certify that copies of *NRC STAFF RESPONSE TO AMENDED PETITION TO INTERVENE AND REQUEST FOR RECONSIDERATION OF TilOMAS J. SAPORITO, JR."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 througn deposit in the Nuclear Regulatory Commission's internal mail system, this 15th day of January,1991:
John 11. Frye,111, Chairman Steven Carr, Esq.
Administrative Judge Administrative Judge Ato:nic Safety and Licensing Board Senic: Attorney i
Panel
' Florida Power and Light Co.
U.S. Nuclear Regulatory Commission 700 Universe Blvd.
Washington, D.C. 20555 Juno Beach, Florida 33408 David R. Schink Charles N. Kelber Administrative Judge Atomic Safety and Licensing Board Department of Oceanography Panel Texas A&M University U.S. Nuclear Regulatory Commission College Station, Texas 77843 Washingtoit D.C. 20555 1-larold F. Reis, Esq.
Atomic Safety and Licensing Michael A. Bauser, Esq.
Board Panel (1)'
James Vigil, Jr., Esq.
U.S. Nuclear Regulatory Commhslon Newman and Holtzinger, P.C.
Washington, D.C. 20555 1615 L Street, N.W.
Suite 1000 Atomic Safety and Licensing Appeal Wast.ington, D.C. 20036 Board Panel (5)'
U.S. Nuclear Regulatoly Commission
2 Adjudicatory File (2)
Office of the Secretary (2)*
Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Attn: Docketing & Service Section Washington, D.C. 20555 Thomas J. Saporito, Jr.
Stewart Ebneter 8135 S.W. 62nd Place Regional Administrator S. Miami, Florida 33143 USNRC, Region 11 101 Marietta St., N.W.
Suite 2900 Atlanta, Georgia 30303 h,*L.itw Patricia Jehle Counsel for NRC Staff i
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