ML20034C830
| ML20034C830 | |
| Person / Time | |
|---|---|
| Site: | 05000054, 07000687 |
| Issue date: | 04/30/1990 |
| From: | Holler E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#290-10309 90-604-03-EA, 90-604-3-EA, EA, EA-90-033, EA-90-33, NUDOCS 9005150193 | |
| Download: ML20034C830 (12) | |
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<f 7pgp9N APR 30%QLD UNITED STATES OF AMERICA 1
l NUCLEAR REGULATORY COMMISSION
'90 MAY -1 P8 :12 y
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD'
{(Ch?.y,'yty 50-74 '-g/i In the Matter of Docket Nos.70-687 4
Cintichem, Incorporated-License Nos. R-81 (OrderModifying) Licenses SNM-639 EA 90-033
)
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ASLBP No. 90-604-03-EA NRC STAFF RESPONSE TO REQUEST FOR HEARING AND PETITION FOR LEAVE TO INTERVENE OF RADIOACTIVE WASTE CAMPAIGN AND THE ORANGE ENVIRONMENT INC.
I.: INTRODUCTION On February 13, 1990, the Deputy Executive Director for Nuclear Materials Safety, Safeguards, and.0perations Support issued an immediately effective Order Modifying License (Order) to Cintichem, Inc. (hereinafter
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Licensee) requiring the Licensee's facility in Tuxedo, New York to remain shutdown until the Licensee has identified and fixed existing leaks at the facility that resulted in the release of radioactivity to an onsite retention pond.
The Order provided an opportunity for a hearing by the Licensee or any other person adversely affected by the Order.. "Cintichem Inc.; Order Modifying License Effective Inunediately," 55 Fed. R_eg - 7072 e
(February 28,1990). OnMarch8,1990,RadioactiveWasteCampaign(RWC) and Orange Environment, Inc. (OEI) (hereinafter Petitioners) submitted a petition for leave to intervene and a request for a full hearing on, among other things, the operations gnd waste disposal protocol of the plant pr_ior 9005150193 900430 PDR ADOCK 05000054 O
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to restart of the reactor. " Request for Hearing and Petition for Leave to-Intervene as a Party," (March 8,1990) (hereinafter Petition).1/
For the reasons set forth below, the Petition should be dismissed as moot or denied.
II. BACKGROUND i
On February 9,1990, the Licensee notified the NRC Staff of an-unmonitored release of radioactively contaminated water from the Licensee's reactor building to an onsite retention pond.
An NRC inspection team was dispatched to the facility the same day and was subsequently informed by-the Licensee that leakage from a failure of part of the concrete wall of 2/
the gama pit had resulted in the uncontrolled release of raJioactivity to the retention pond. On February 12, 1990, the' licensee informed the NRC i
inspection-team that another concrete tank, the holdup tank, 3_/ also had developed a leak.
Subsequently, on February 13,.1990, the Deputy Executive L
Director for Nuclear Materials Safety Safeguards, and Operations Support issued an immediately effective Order Modifying License. The Order i
requires shut down of the reactor until the Licensee complies with certain
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Petitioners served their request in accord with the instructions contained in the Order, which did not provide for service.on Cintichem. By Order dated April 2, 1990, the Board' ordered Petitioners to serve their request on Cintichem and Cintichem to answer the petition within ten days of service and the Staff to answer within five days following receipt of Cintichem's answer.
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The gamma pit is a water filled pool which is used for the temporary
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storage of radioactive material.
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The holdup tank is located in the reactor building and.is used to allow the decay of short-lived isotopes in the reactor coolant.
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'.g requirements including _ development and implementation of a plan to identify and repair existing leaks and monitor for future leaks.
On March 8,1990,' the Petitioners submitted a petition for leave to
. intervene and a request for a full hearing on, among other things, the l
operations and waste disposal protocol of the plant prior.to restart of the reactor. The Licensee has not contested the Order and has indicated its
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intention to decommission the facility and terminate Licenses Nos. R-81 and SNM-639.
" Answer Of Cintichem, Incorporated To Request For Hearing And Petition For Leave To Intervene As A Party Submitted By Radioactive Waste Campaign and Orange' Environment, Inc.." (April 23,1990)(hereinafter a
LicenseeAnswer).
l III. ARGUMENT Section189aoftheAtomicEnergyActof1954,asamended(Act) provides that in any proceeding for the granting, suspension, revocation, or amending of a license, the Commission shall grant a hearing upon the request of:any person whose interest may be affected by the proceeding, and I
shall admit any such person as a party to the proceeding. See Atomic l
Energy Act of 1954, 6 189a, 42 U.S.C. 6 2239(A) (1976) (amended by Pub.L.
l No.97-415, 9 12, 96 Stat. 2067, 2073 (1983)). Section Y of the February 13, 1990 Order provides that the Licensee, or any person who is l
l adversely affected by the Order, may request a-hearing.within 30 days of the date of the Order and that if a person other 'than the Licensee requests -
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a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by the Order and shall address the criteria set forth in 10 C.F.R. 6 2.714(d). Order at 5.
Section 2.714(d)
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requires licensing boards, when ruling on a petition to intervene or l
l request for a hearing, to' consider, among other things:
The nature of the petitioner's right under the Act to be made a party to the proceeding.
The nature and extent of the petitioner's property, financial, or other interest in the proceeding..
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1 The possible effect of any order that may be entered in the proceeding
. on the petitioner's interest, i
-The Comission has long held that judicial concepts of standing will be applied in determining whether a petitioner has sufficient interest in a.
proceeding to be entitled to intervene as a matter of right under Section
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189 of the Act. Metropolitan Edison Co. (Three Mile Island Nuclear l
Station, Unit 1), CLI-83-25,18 NRC 327, 332 (1983), citing, 7
Portland General Electric Co. (Pcbble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).
The Commission also has held that the judicial concepts require'a showing that (a) the action will cause injury l
in fact and (b) the injury is arguably within~the zone.of interests l-l protected by the statutes governing the proceeding. M.
l The immediately effective February 13, 1990 Order, issued pursuant to 10 C.F.R. 6 2.204, was an enforcement sanction issued in accordance with the Comission's. policy and procedures regarding enforcement of Comission regulations in matters involving the public health and safety, the comon defense and security, and the environment. See " General Statement of l
Policy and Procedure for NRC Enforcement Actions," 10 C.F.R. Part 2, Appendix C (1990). The Order modifies the existing Cintichem licenses by i
imposing additional safety measures.
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The Order was imposed following a determination by the Deputy Executive Director for Nuclear Materials Safety, Safeguards, and Operations 4
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Support that the concurrent identification of the failure of two concrete tanks, resulting in the uncontrolled release of radioactively contaminated water' to the site environs, demonstrates that the Licensee cannot presently '
provide reasonable assurance that continued operation under its licenses will be in compliance with Commission requirements. Order at 2-3.
The Order requires that the facility remain shut down until the Licensee i
identifies and fixes existing leaks at the facility that have resulted in the release of radioactivity to the onsite retention pond, and implements a plan to monitor for future leaks. Order at 3-4.
CentraltoPetitioners'requestis"thatafullhearingonthe-operations, waste disposal protocol and the nature, extent and effects of
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the effluents and emissions of the plant be held prior. to= any consideration of, or decision with respect to, the restart of the reactor".
Petition at 1(emphasisadded). Although the Petition goes on to request that a_ full i
risk assessment or environmental impact statement be completed for the Cintichem facility, " prior to or simultaneous with such hearings," this request also is made in connection with "any decision to allow the recctor to restart." Petition at 2.
On April 4,1990, the Licensee announced its intention to decomission its reactor located at Tuxedo, New York and to terminate the 10 C.F.R. _
Part 50 and the 10 C.F.R. Part 70 licenses for the facility. Licensee Answer at 2. The Licensee has declared its intention not to operate the reactor after February 9,1990, and to permanently shut down and dismantle-the facility.
The Licensee's action in essence, provides the Petitioners' prayed _for remedy, namely, no restart of the reactor, and renders a hearing regarding S
2 the merits of Petitioners' request moot'. When the underlying administrative proceeding has been terminated and the matter appears i
unlikely of repetition as it affects the parties and proceedings involved,.
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the Commission has held that a petition to intervene is dismissed as moot and orders of the Licensing Board and the Atomic Safety and Licensing Appeal-Board on the question of intervention are vacated _ Pudget Sound Power And Light Company (Skagit Nuclear Power Project, Units 1 and 2),
CLI-80-34, 12 NRC 407, 408 (1980).
In the instant case, the Licensee's decision to decommission its facility and terminate its licenses effectively renders meaningless any proceeding.regarding the February 13-Order requiring that the facility remain shut down. U I
Petitioners go on to describe a number of issues _for_ inclusion in the,
hearing they request including operations, waste disposal protocol, and the nature, extent, and effects of the effluents and emissions of the plant.-
The Order, on the other hand, requires shutdown of the facility and does not authorize restart of the facility _until the additional safety measures imposed by the Order are completed. The issues Petitioners would raise, therefore, are outside the scope of a proceeding regarding this enforcement order.
The Commission has clearly indicated that the scope of an action initiated by the Commission may be limited and defined-by the Commission 4/
In sum the Licensee's decision to decommission the facility and
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decontaminate the site for unrestricted use, renders any decision in favor of Petitioners request, of no practical effect. As explained in Section C infra, if Petitioners believe the Licensee is not proceeding with decommissioning of the facility, or if for any reason.
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(Footnote continued on next page)
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, yc and that the issues in enforcement proceedings may be limited to whether the facts as stated in an order are true and whether the remedy selected is-j supported by those facts. Boston Edison Co._ (Pilgrim Nuclear Power l
Station)..CLI-82-16,16NRC44,46(1982), aff'd, Bellotti v. NRC, 725 F.2d t'
1380(D.C.Cir.1982);SequoyahFuelsCorp.(Sequoyaht.>
?roduction
' Facility),CLI-86-19,24NRC508,516(1986);. Public Service Company'of.
Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2),=CLI-80-10,-
11NRC438,441-42(1980).
In Marble Hill, Pilgrim, and Sequoyah, the
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Comission denied third party petitions for hearings and intervention on l
enforcement orders modifying the licenses for'the facilities, on the ground 1
that the petitions presented concerns outside the scope of the proceedings. 5/ Regarding the-authority to define the scope of the proceeding, that is, its agenda and substance, the Court in Bellotti i
stated, "We have no doubt that as a general matter, such authority must reside in the Comission". Bellotti, supra, at 1381.
The February 13, 1990, Order clearly limits the scope of a hearing,. if one is held, regarding the Order.Section V of the Order states, "If a hearing -is held, the issue to be considered at such hearing shall be whether this Order should be sustained". Order at 6.
Thus, it is in the context of the substantive action directed by the Order that Petitioners' right to a (Footnote continued from previous page)
Petitioners believe their concerns have not been addressed they may file a-request for further enforcement action pursuant to 10 C.F.R. 5 2.206.
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In Farble Hill, the Commission discusses the policy considerations in support of its view regarding limiting the scope of hearings on enforcement orders. See Marble Hill, supra, at 441-42.
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hearing must be judged. To be successful then, a prospective party must show that his interests are affected by the scope of the proceeding, as that proceeding is defined by the Comission.
Again, the scope of a proceeding regarding the February'13 Order would be limited to whether the Order requiring shutdown should be sustained,.
that is, whether the' facts regarding the facility stated in the Order are i
true, and whether the remedy selected by the Deputy Executive Director for j
3-Nuclear Materials Safety, Safeguards, and Operations Support is supported by the facts. Accepting for the sake of argument that Petitioners are j
affected by the issues they propose, these' issues are outside the~ scope of
'I this proceeding as defined by the' order. 6_/
q Denial of intervention in this proceeding does not leave Petitioners without recourse for matters they perceive as-impacting public health and safety. The Commission has indicated that for persons who believe their-l concerns have not received adequate attention, including disagreement with the extent of enforcement orders, the appropriate forum is a petition under i
10 C.F.R. 5 2.206. See Sequoyah Fuels, supra, at 513; Pilgrim, supra, at
- 47. The regulations in 10 C.F.R. 5 2.206(a) provide, in part, that any 1
person may file a request with the Executive Director for Operations to o
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The Commission has the discretion to provide hearings or pennit intervention in cases where such action is not strictly required as a
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matter of right. Marble Hill, supra, at 442; Portland General, su ra, at 614-14.
In Portland General, the Commission stated-that, p ermission to intervene should prove more readily available where petitioners show significant ability to contribute on substantial issues of law or fact which will not otherwise be properly raised or presented, set forth these matters with suitable specificity to allow evaluation, and demonstrate their importance and imediacy, justifying the time necessary to consider them".
Portland General, l
supra, at 617 (Emphasis added).
Such is just not the case here.
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institute a proceeding pursuant to 10 C.F.R. 6 2.202 to modify, suspend, or j
revoke a license or for such other action as may be proper, i
III. CONCLUSION' 1
The Licensee's decision to decomission its facility and terminate the Cintichem licenses makes the Petitioners' request for a hearing'regarding l
an imediately effective Order which shuts down the facility moot.
Notwithstanding that the Petition should be dismissed as moot, the l
Petitioners have failed to establish that they are adversely affected by 1
the Order. For these reasons, the petition to intervene and request for hearing by Radioactive Waste Campaign and Orange Environment -Inc. should ~
i be denied.
Respectfully submitted, As i
Euge e Holler Counsel'for NRC Staff Dated at Rockville, Maryland this 30th day of April, 1990.
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t 00LMETED-USNRC UNITED STATES 0F AMERICA NUCLEAR REGULATORY COMMISSION
.90 MAY -1 P8 :13 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OU fCL DF SLCRETARY 00CK[llNG & S[itVICl:
BRANCH In the Matter of-Docket Nos.. 50-74 70-687 Cintichem, Incorporated License Nos.
R-81 SNM-639 l
(OrderModifying) Licenses ASLBP No.. 90-604-03-EA EA 90-033
)-
i NOTICE OF APPEARANCE-Notice is hereby given that 'the - undersigned attorney enters an-appearance in the above-captioned matter.
In accorda'nce with 6'2.713(b),
10 C.F.R., Part 2, the following information is provided:
Name:
Eugene Holler Address:
U.S. Nuclear-Regulatory Comission Office of the General Counsel l-Washington, D.C.
20555 Telephone Number:
301-492-1520 i
Admissions:
Court of Appeals of Maryland Name of Party:
NRC Staff-Respectfully submitted, Sv" Eugeifle Holler Coun M1 for NRC Staff Dated at Rockville, Maryland this 30th day of April, 1990 t
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DOCKETED
' to :
usukc 1
UNITED STATES OF~ AMERICA 90 MY -l P8 :13 0
NUCLEAR REGULATORY COMMISSION OFF ICE OF SECRf1ARY.
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 00CKElgegEHylCL
. In the Matter of Docket Nos.
50-74 70-687.
Cintichem, Incorporated License Nos. R-81 (Order Modifying) Licenses SNM-639 EA 90-033 '
ASLBP.No. 90-604-03-EA CERTIFICATE OF SERVICE a
I hereby certify that copies of "NRC STAFF RESP 0fiSE TO REQUEST FOR' HEARING AND PETITION FOR LEAVE TO INTERVENE OF RADI0 ACTIVE WASTE CAMPAIGN AND THE c
ORANGE ENVIRONMENT, INC." 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 30th day of April,1990:
4 Samuel J. Chilk, Secretary *
' John H. Frye, III, Chairmarf U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Board Panel Washington, DC' 20555 U.S.. Nuclear Regulatory Comission Washington, DC 20555 Dr. James Carpenter
- Atomic. Safety and Licensing-Board l
Atomic Safety and Licensing Board Panel (1) l Panel U.S. Nuclear Regulatory. Comission l
U.S. Nuclear Regulatory Comission-Washington, DC 20555 Washington, DC 20555 Dr. Richard F. Cole
- Atomic Safety'and Licensing Appeal Atomic Safety and Licensing Board Panel (5) r'
' Panel U.S. Nuclear Regulatory Comission.
l-U.S. Nuclear Regulatory Comission
' Washington, DC 20555 Washington, DC 20555 Adjudicatory File
- Office of the Secretary
- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comission j
i Washington, DC 20555 Washington, DC 20555 Attn: Docketing and Service Section c
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'A Lawrence A. Goldberg, Esq.
Robert J. Ross, Esq. -
Pester, Goldberg and Schiff 1800 K Street, N.W., Suite 600 One Old Country Road Washington, DC 20006 Carle Place, New York 11514 M
Eugeni ) Holler Counsel for NRC Staff Dated at Rockville, Maryland this 30th day of April, 1990.
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