ML20029A053
| ML20029A053 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 01/23/1991 |
| From: | Frye J, Kelber C Atomic Safety and Licensing Board Panel |
| To: | Saporito T SAPORITO, T.J. |
| References | |
| CON-#191-11325 91-625-02-OLA-6, OLA-6, NUDOCS 9102010145 | |
| Download: ML20029A053 (12) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.g g g p g gg ATOMIC SAFETY AND-LICENSING BOARD Beforo Administrative Judges
! V"-
John H Frye, III, Chairman 4
4 Dr. Charles N. Kelber Dr. David R.-Schink g,gg y jggj 4
4 M.El'20 2 2.5 1991 In the Matter oft Docket Nos. 50-250-OLA-6 FLORIDA POWER AND 50-251-OLA-6 LIGilT COMPANY (Emergency Power System i
Enhancement)
(Turkey Point Plant, ASLBP No. 91-625-02-OLA-6 l
Unit Nos. 3 & 4)
January 23, 1991 MEMORANDUM AND ORDER (Ruling on Petition to Intervene)
In July and September, 1990, Florida Power and Light.
j Company (FPL) proposed a number of design changes for its Turkey Point Plant located-in Dade County, Florida.
These changes, part of its Emergency Power System enhancement project, would add two emergency diesel generators, two battery chargers, a battery bank, and associated support and j
electrical distribution equipment.
FPL also seeks permission to modify the Technice.l' Specifications to reflect these changes.
i Following receipt of'FPL's application,-the Commission's Staff published a' notice indicating that this application was under consideration.1 This notice offered-1 1
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ISee 55-Fed. Reg. 39331. (September.26, 1990). 'The' 9102010145 910123 0
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an opportunity for interested persons to petition for a hearing with regard to these changes.
Thomas J. Saporito, 1
]
Jr., filed a timely request for hearing and-petition for leave to intervene in response to the notice.2 Both FPL and Staff oppose the petition on the ground that Mr. Saporito has not demonstrated that he has standing to intervene.
The Commission's requirements with regard to standing are set out in 10 CFR S 2.714 (a).
This provision requires that a petitioner state his or her interest with d
particularity, how that interest may be affected by the proceeding, and why he or she should be permitted to intervene.
The Commission has held that judicial-concepts of sta, Jing are to be utilized in its-proceedings.
Portland General Electric Co. (Pebble Springs Nuclear Plant), CLI-76-27, 4 NRC 610 (1976).
Thus, in order to be successful, a petitioner must allege an-injury in fact to.his or her interests and that that irajury is within the zone of Notice also indicated that the Commission proposed making a "no significant hazards" determination under 10 CPR S 50.92 which, pursuant 'to 10- CFR S150.91(a) (4),- would -permit - the issuance of:the license amendment requested by FPL-in advance of the completion of any' hearing held asLa result-of a request filed in response-to the Notice.
On-Decemberc28, 1990, the Commission issued the. requested amendment.
2 The Nuclear Energy Accountability Project 1(NEAP) was.
also: included with-Mr. Saporito as a petitioner, but subsequently moved to withdraw its-petition.
The motion-represented that. NEAP would be dissolved on December 31, 1990.
This motion was granted on December 12..
Consequently, NEAP's petition is not further' considered in this Memorandum and order.-
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< interests protected by an applicablo statute.
It is well settled that "...as a general proposition, a person whose base of normal, everyday activities is within 25 miles of the site can fairly be presume'd to have an interest which might be affected by reactor construction and/or operation,"
thus satisfying the " injury on fact" te.st.
Gulf states Utilities Comnany (River Bend Station), ALAD-183, 7 AEC 222, 226 (1974) (emphasis in original).
In Florida Power &_Llaht Comnany (St. Lucie Nuclear Power Plant), CLI-89-21, 30 NRC 325 (1989), the commission affirmed this proposition, noted that living within a specific distance from the plant would confer standing on individuals in proceedings on major amendments to a power plant license.
The Commission has held that the burden rests with the petitioner to demonstrate that he or she satisfies the requirements of 10 CFR S 2.714(a).
Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 331 (1983).
Mr. Saporto's petition recites that he
... lives and works in and about the City of Miami, Florida as the Executive Director of NEAP and as a self-employed individual with the Airflow service Corporation.
The interests of Mr. Saporito could be adversely affected if a serious nuclear accident occurred at the Turkey Point nuclear plant as a direct orindirectresultofthe(grangingofthelicense amendment under consideration) 3Petition, p.2.
-4 The petition makes no other representations with regard to the standing of Mr. Saporito to request a hearing and to intervene in the proceeding.
PPL asserts that the meaning of the quoted statomont is unclear.
It notes that the statomont that Mr. Saporito works for HEAP and Airflow Servico Corp. "in and about" Miami does not addrers the extent to which his work occurs in Miami as opposted to some other place.'
Morcover, FPL notes that recently it was brought out in Mr. Saporito's deposition taken in connection with an unrelated proceeding before the Department of Labor that, in the course of its three-year existence, Airflow Service had generated revenues of about $600-$700.
Thus this work could not be extensivo.
Further, FPL notes that the representation that Mr.
Saporito lives in Miami does not exclude other places of abode.
It observes that in a related commission proceeding concerning the Turkey Point Plant (the OLA-5 procooding),
a brief filed on Mr. Saporito's behalf on September 5 stated that his residence was in Jupitor.5
' Assuming that NEAP has now been dissolved, work for that organization would no longer exist.
SMr. Saporito does not question FPL's and Staff's assertion that Jupiter is too remoto from the Turkey Point Station to support standing.
Soo Staff's answer at p.
8, FPL's answer at p.8.
In its response, FPL notes that Mr.
Saporito represented that Jupiter is about 83 miles from the Turkey Point Station in an amended petition filed in the related "OLA-5" proceeding.
I-
, Following submission of itairesponse to the petition, FPL brought to the Board's attention the fact that it had received two change of address notices from Mr. Saporito.
The first of these, received on November 29, indicated that Mr. Saporito's mailing address was changed to 8135 S.W.
62nd Place, Miami, Florida 33143.
FPL represents that this notice recited that it became effective in July and notes that if this is so, it conflicts with Mr. Saporito's sworn testimony given in August in the Department of Labor proceeding to the effect that his address was in Jupiter,-
The second, received on December 2, stated that the mailing address was changed to P.O. Box 129, Jupiter, Florida 33468-0129.'
FPL notes that the apparent inconsistency in Mr. Saporito's representations raises serious questions concerning the location of his abode.'
Staff also asserts that Mr. Saporito has failed to l
demonstrate that he has standing,-noting that he has given 1
insufficient information concerning both his residence and employment.
Staff notes _that Mr. Saporito did not state in his petition where he resides in Miami.
Nor did he provide-l
'The motion to withdraw NEAP's petition, filed on December'8, indicated that Mr. Saporito's mailing address was 8135 S=W. 62nd Place, S. Miami, Florida 33143.
7See FPL's November 9-response to the petition, pp 11-14, and its response to the notices of change of address of December 5.
FPL also takes the position that Mr. Saporito has not stated an admissible contention.
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. sufficient elaboration of the extent of his work activities in that city.a on December 5, we afforded Mr. Saporito an opportunity to respond to the answers filed by FPL and Staff, including FPL's response to the notices of change of address.
Houston Lichtina and Power comoany, Allens Creek Nuclear Generating Station), ALAB-565, 10 NRC 521 (1979).
On December 26, Mr.
Saporito filed his reply.
Although that reply stated that he had been directed to respond both to the answers opposing his petition and to FPL's comments prompted by the notices of change of address, Mr. Saporito addressed only the latter.'
The substance of Mr. Saporito's reply is:
Mr. Saporito's mailinq address remained at 1202 Sioux Street, Jupiter, Florida at that time and did not change until some time after July 1990 and well before the time that Petitioner filed a Request fpg !! caring and Leave to Intervene in this proceeding Mr. Saporito addresses none of the other arguments raised by FPL and Staff.
l 8Staff's November 14 response to the petition, pp.
8-9.
Staff also takes the position that Mr. Saporito has failed to state an admissible contention.
'The reply noted in passing that FPL's answer to the petition had also suggested that there was some inconsistency between the representations made in this proceeding and in the Department of Labor's proceeding.
loReply, p.4.
The statement that Mr. Saporito's mailing address remained in Jupiter "at that time" presumably refers to July 1990.
In the preceding paragraph of the reply, Mr. Saporito states that NEAP's change of address to Miami from Jupiter became effective in July 1990
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Here some doubt exists as to where Mr. Saporito lives.
The petition recites that he " lives and works in and about the City of Miami," but indicated an address in Jupiter, Florida, as did a brief filed' on his behalf in the OLA-5 l
proceeding on September 5.
A notice of a change of Mr.
l Saporito's mailing address received by FPL on-November 29 and effective in July, 1990, indicated that mail was to~be send to him at a Miami address.
This was followed by a second notice received by FPL on December 2 changing the mailing address back to Jupiter.
The motion to withdraw-HEAP's petition, filed three days following FPL's response to the notices of address change, indicated that all future filings should be directed to Mr. Saporito at the Miami address.
When FPL pointed out that the first notice changing the mailing address to Miami was inconsistent with Mr. Saporito's sworn testimony in the Department of Labor proceeding indicating his residence in Jupiter, Mr.
Saporito's response was that his mailing address "did not change until some time after July 1990 and well before the time" he filed his petition, t
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Mr. Saporito's representations as to his address may be i
summarized as follows:
i Date Document Representation September 5 Brief in OLA-5 Resides in Jupiter.
October 25 Petition in this
" Lives and works proceeding in and about the i
City of Miami."
Address indicated in i
~
signature block is P.O. Box 129, 1
Jupiter.
Received by FPL Change of Direct mail to November 29 address 8135 S.W 62nd effective July Place, Miami..
1990.
Received by FPL Change of Direct mail to December 2 address P.O.LBox 129, Jupiter.
December 8 Motion Direct mail to withdrawing 0135 S.W.
62nd NEAP's petition Place, Miami, i
December 26 Reply to FPL and Mailing address Staff did not change j
-to Miami from Jupiter until after July andJ befora october 25.
In these circumstances, a representation that Mr..
Saporito " lives and works in and about" Miami not far-from the plant in question is-insufficient to support standing.
When confronted with objections that he-had not' adequately set forth a basis for standing byL clearly indicating where=
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e he works and lives, Mr. Saporito-responded only that at the time of the filing of his petition, his mailing address was in Miami.
While we would ordinarily assume that an individual petitioner receives mal.1 at his residence, in this case sw.a an assumption is not warranted.
The frequent changes of that address in a short period of time underscore the questions concerning Mr. Saporito's standing raised by FPL and Staff.
It was incumbent on Mr. Saporito to affirmatively state where he resides and the extent to which his work takes place in proximity to the plant.
Absent such a statement, we cahnot conclude that his " base of normal, everyday activities" is close enough to the plant to support standing.
Mr. Saporito's failure to have affirmatively responded to the questions raised regarding-his standing,-when coupled with his representations made over a period of about two weeks in late November and early December that his mailing address changed three times in a period of less than four months, prevents us from concluding that he resides at the Miami mailing address and thus has standing.
This is I
particularly so in light of the fact that the last change L
followed hard upon FPL's comments on the earlier two l
notices.
J '
Accordingly, Mr. Saporito'e-petition filed in this proceeding is denied.11 Pursuant to 10 CFR S 2.714a(a),
within tan days after its service, Mr. Saporito may appeal this Memorandum and order by ' filing a Notice of Appeal and accompanying brief with the conmission.
See 10 CFR S 2.785 as amended October 18, 1990 (55 Fed. Reg. 42944 [ October 24, 1990)).
It is so ORDERED.
Atomic Safety and Licensing Board Dr. David R. - Schink" ADMINISTRATIVE JUDGE
>A I,
7 Y. Charles.N. Kelber ADMINISTRAT3' ' JUDGE 4
Jo n Q r$e, III, Chairman ADM NISTRTIVE JUDGE D
Bethesda, Maryland January 23, 1991 i
11In light of this result, we do not consider whether Mr. Saporito has satisfied-the other requirements-of 10 CFR S 2.714.
12 Dr. Schink concurs in this Memorandum and order, but-was not available to sign-it.
o
i UNITED STATES OF AMERICA l
s NUCLEAR REGULATORY COMMIS$10N
)
)
In the Matte' cf I
I FLORIDA POWER AhD LIGHT COMPANY l
Docket No.(s) 50-250/251-OLA-6 I
(Turkey Point Flant. Unit Nos. 3 4 4) i I
i CERTIFICATE OF SERVICE 1 hereby certify that contes of the foregoino N&O (RULING 4N PET. TO INT.)
have been servec upon the followino persons by U.S. tail-11rst class, except as otherwise noted and to accordance with the requirements of 10 CFR Sec. 0.712.
Atcast Safety and Licensing Appeal Administrative Judas Board John H. Frys. !!1. Chairman U.S. Nuclear Reculatory Commission Atomic Saf ety and Licensino Board Washington. DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Adelnistrative Judae Charles N. Kelber Administrative Judge David R. Schink Atomic Safety and Licenstna Board U.S. Wuclear Reavlatory Consission Department of Oceanography Texas AhM University Washington, DC 20555 College Station TX 77043 Patricia Juhle. Esq.
Difice of the General Counsel Thomas J. Saporito, Jr.
U.S. Nuclear Regulatory Commission Executive Director 6135 S.W. 62nd Place Washington, DC 20555 S. Miant, FL 33143 Harold F. Reis. Esq.
Nensc3 & Holtzinger, P.C.
Suite 1000 1615 L Street, NW Washington, DC, 20036 Dated at Rockville, Md. this 23 day of January 1991 Office' f the Secretary of the Commission
o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION in the Matter of I
I FLORIDA POWER AND LIGHT COMPANY l
Docket No.(s) 50-250/251-OLA 6
\\
(Turkey Point Plant. Vin t Nos. 3 h 4) i i
I CERTIFICATE OF SERVICE 1 hereby certify that coDies of the foreQoine LB Mk0 (RULING ON PETITION...)
have been served vaon the f ollowino persons by U S. mail, first class, except as otherwise ncted and in accorcance with the reautrements of to CFR Sec. 2.712.
Ateste Saf ety and ticinsf ec Appeal Administrative Judge Board John H. Frye, !!!, Chairman U.S. Nuclear Aequlatory Consissten Atcalc Saf ety and Licensing Board Washincton DC 20555 U.S. Nuclear Regulatory Consission Washincton, DC 20555 1
Administrative Judoe Charles N. Kelber Administrativs Judge David R. Schink Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Department of Oceanography Texas AhM University Washington. DC 20555 College Station, TX 77843 Patricia Jehle. Esq.
Office of the Ger.eral Counsel Thomas J. Bacorito, Jr.
Executive Director U.S. Nuclear Regulatory Consission 8135 S.W. 62nd Place Washington DC 20:55 S. Miami FL 33143 Harold F. Reis. Esq.
Newman & Holtzinger P.C.
Suite 1000 1615 L Street NW Washinoton, DC.
20036 Dated at Rockville, Md. this l
25 day of January 1991 siat;ts;;;;i;;;;t.;;s;;s;a;;;t;; tan
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