ML20045D213
| ML20045D213 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 06/14/1993 |
| From: | Hodgdon A, Jorgensen A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#293-14043 OLA, NUDOCS 9306280096 | |
| Download: ML20045D213 (12) | |
Text
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&B June 14,1993
. 2 i. ; il-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'93 JUN 14 P4 :I1 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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BOSTON EDISON COMPANY
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Docket No. 50-293-OLA
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(Spent Fuel Pool)
I (Pilgrim Nuclear Power Station)
)
NRC STAFF RESPONSE TO MASSACHUSETFS ATTORNEY GENERAL'S REOUEST FOR HEARING AND PETITION TO INTERVENE INTRODUCTION On April 30,1993 the Nuclear Regulatory Commission (NRC) Staff published m the Federal Register a Notice of Consideration of Issuance of Amendment to Facility Operating License and Proposed No Significant Hazards Consideration Determination and an Opportunity for Hearing,58 Fed. Reg. 26,171, regarding Boston Edison Company's application to amend its facility operating license for its Pilgrim Nuclear Power Station to increase the number of assemblies allowed to be stored in the spent fuel pool from 2,320 to 3,859; to change the maximum loads allowed to travel over the spent fuel assemblies from 1,000 to 2,000 lbs.; and to change the limiting characteristics of assemblies to be stored. 58 Fed. Reg. 26,171 (April 30,1993).
The Federal Register notice included a proposed no significant hazards consideration determination, and specified that any person whose interest might be affected by this proceeding and who wished to participate as a party "must file a written 9306280096 930614 PDR ADOCK 05000293 Cd]
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request for a hearing and a petition for leave to intervene" by June 1, 1993. 58 Fed.
Reg. at 26,173.
By a pleading filed with the Secretary of the Commission, dated May 27,1993, the Massachusetts Attorney General requested a hearing on the proposed license amendment and petitioned to intervene pursuant to 10 C.F.R. 00 2.714 and 2.715(c).
'i The NRC Staff's response to the Attorney General's petition is set forth below.
DISCUSSION Section 189(a),42 U.S.C. $ 2239(a), of the Atomic Energy Act (AEA) provides, in pertinent part, that:
In any proceeding under this Act, 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 afected by the proceeding, and shall
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admit any such person as a party to such proceeding.
[ emphasis added). Under NRC regulations implementing the AEA, "any person whose interest may be affected by a proceeding and who desires to participate as a party shall file a written petition for leave to intervene." 10 C.F.R. 6 2.714(a)(1). Such petition must satisfy the following requirements:
The petition shall set forth with particularity the interest of the petitioner in the proceeding, how that interest may be afected 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 which petitioner wishes to intervene.
I
10 C.F.R. Q 2.714(a)(2) (emphasis added).'
A.
Interest and Standing In determining whether a person or organization has sufficiently established an i
interest protected by the AEA that may be affected by the proceeding, the Commission applies contemporaneous judicial concepts of standing. See, e.g., Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 NRC A7, 56 (1992); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327,332 (1983); Portland General Electric Co. (Pebble Springs Nuclear Plant, i
Units 1 and 2), CLI-76-27,4 NRC 610,614 (1976).
i These judicial concepts require a petitioner to " establish that he or she will suffer a distinct and palpable harm that constitutes the injury-in-fact;2 that the injury can be 10 C.F.R. 6 2.714(d)(1) provides that, in considering petitions for leave to intervene or requests for hearing, the Commission or presiding officer shall consider, inter alla, the following factors:
(i)
The nature of the petitioner's right under the Act to be made a party to 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.
4 2 " Abstract concerns" or a " mere academic interest" in the matter which are not accompanied by some real impact on a petitioner will not confer standing. See Erron Nuclear Co. (Ten Applications for Low-Enriched Uranium Exports to EURATOM Member Nations), CLI-77-24,6 NRC 525,531 (1977); Portland General Electric Co.,
1 (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27,4 NRC 610,613-14 (1976).
Rather, the asserted harm must have some particular effect on a petitioner, Ten Applications, CLI-77-24, supra, and a petitioner must have some direct stake in the outcome of the proceeding. See Allied-General Nuclear Services, (Barnwell Fuel
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4 traced fairly to the challenged action; and that the injury is likely to be redressed by a favorable decision in the proceeding." Public Service Co. ofNew Hampshire (Seabrook Station, Unit 1), CLI-91-14, 24 NRC 261, 266-67 (1991). Accord, Fomidation on Economic Trends v. Lyng, 943 F.2d 79, 82 (D.C. Cir.1991)("Lyng"); Nuclear Engineering Co. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site),
ALAB-473, 7 NRC 737, 743 (1978)(there must be a concrete demonstration that harm could flow from the result of a proceeding).
Thus, the issue is whether, as mentioned, the action being challenged could cause
" injury-in-fact" to the petitioner and, also, whether such injury is arguably within the zone of interest protected by the Atomic Energy Act or the National Environmental Policy Act. Vennant Yankee Nuclear Power Corp. (Vermont Nuclear Power Station),
LBP-90-6, 31 NRC 85, 89 (1990).
Furthermore, for any licensing action, the matters outlined in the Federal Register notice of opportunity for hearing define the scope of the proceeding on the action. See Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 NRC 335, 339 (1983); Northern Ind!ana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-619,12 NRC 558,565 (1980). Consequently, parties may j
not seek to litigate issues that are not within the scope of the notice of opportunity for hearing.
Receiving and Storage Station), ALAB-328,3 NRC 420,422 (1976).
The Massachusetts Attorney General seeks intervention on behalf of the citizens of the Commonwealth of Massachusetts.3 He further states that the Pilgrim Nuclear Power Station is located in the Commonwealth on the shore of Cape Cod Bay and that several Massachusetts communities are located within ten miles of the Pilgrim plant (within the emergency planning zone called the plume exposure pathway). He also states that a large portion of the Commonwealth, including the Boston metropolitan area, lies within fifty miles of the site (the ingestion exposure pathway). He asserts that the health, welfare and safety of Massachusetts citizens could be affected by the p;aposed increase in the allowed fuel as
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' hat any order permitting the proposed amendment would have a e
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m ef et on Massachusetts and its citizenry.
The 5e es d.ut te petitioner ha 4 preperly established Massachusetts' 1 Iw o as interest might be affected by the outcome of the interest am proceeding.
, the Attorney General has made a showing sufficient to establish standing to intervene.'
The Attorney General petitions to intenrene on a parens patriac basis. Parens i
3 patriae has been interpreted to mean, "on behalf of the citizens of a state." It is a concept of standing utilized to protect quasi-sovereign interests like health, comfort and welfare of the people. Gibbs v. Tittelman,369 F. Supp. 38,54 (E.D. Penn.1973), rev'd on other grounds, 502 F.2d 1107 (3rd Cir.1974), cert. denied, Gibbs v. Garver, 419 U.S.1039 (1974).
In addition to the Commission's regulation,10 C.F.R. 5 2.714, which provides for intervention, the Commission's regulations also permit participation under 10 C.F.R. 6 2.715 by a person not a party. Section 2.715(c) provides that the presiding officer will afford representatives of an interested State, county, municipality and/or agencies thereof a reasonable opportunity to participate and to introduce evidence, interrogate witnesses, and advise the Commission without requiring the representative to take a position with respect to the issue.
B.
The " Aspect" Requirements for Intervention Under 10 C.F.R. 6 2.714 In addition to demonstrating " interest," a petitioner must set forth "the specific 4
aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene." 10 C.F.R. f 2.714(a)(2).5 While there is little guidance in NRC case law concerning the meaning of " aspect" as the term is used in 10 C.F.R. f 2.714, it appears that a petitioner may satisfy this requirement by identifying general potential effects of the licensing action or areas of concern which are within the scope of matters that may be considered in the proceeding.6 See Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-146, 6 AEC 631, 633 (1973); vennont Yankee Nuclear Power Corp., supra, 31 NRC at 89 ("a petitioner may satisfy this requirement The Attorney General states that because he is an elected representative of the citizens of the Commcawealth of Massachusetts, he is entitled to participate in this proceeding as a representative of an interested State pursuant to 10 C.F.R. 5 2.715(c).
However, as there are no other petitioners for intervention in the instant proceeding, Massachusetts' request for intervention pursuant to 10 C.F.R. f 2.714 must be successful in order to cause a hearing to be held. Participation pursuant to 10 C.F.R. f 2.715(c) is possible only where a petitioner filing pursuant to 10 C.F.R. f 2.714 is successful in having a contention admitted and, thus, causing a hearing to be held.
10 C.F.R. f 2.714(b)(1) also requires the petitioner to file "a supplement to his or 5
her petition to intervene that must include a list of the contentions which petitioner seeks to have litigated in the hearing." This section further provides that, "[a] petitioner who fails to file a supplement that satisfies the requirements of paragraph (b)(2) of this section with respect to at least one contention will not be permitted to participate as a party."
The NRC staff will respond to the contentions set forth in the supplements after their receipt. Accordingly, nothing said herein by the Staff regarding " aspects" is intended to apply to the petition's satisfaction of the 10 C.F.R. f 2.714 contention requirements.
The subject matter of the proceeding for purposes of identification of " aspects" 6
relates to the question of issuance of a license amendment involving an increase in the -
number of fuel assembly storage cells in the spent fuel pool; change in the capacity of loads that travel over the spent assemblies in the pool; and change in the limiting characteristics of stored assemblies. See 58 Fed. Reg. 26171 (April 30,1993).
by identifying general potential effects of the licensing action or areas of concern that are within the scope of matters that may be considered in the proceeding").
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The Attorney General states several concerns that he believes. relate to the proposed license amendment:
i (1)
The proposed elimination of the spent fuel storage / cask loading area from the spent fuel pool;.
(2)
The failure of Boston Edison to consider alternatives, such as dry storage; (3)
The inadequacy of Boston Edison's cost-benefit analysis; (4)
The required use of the residual heat removal (RHR) system; (5)
Additional risk posed by spent fuel pool severe ar. idents.
As t ;ards " aspect," the Massachusetts Attorney General identifies his concerns relating.
4 efh.s of Boston Edison's at. cation to amend its operating license. The Staff believes that the Massachusetts Attorney General has arguably identified an aspect i
of the proceeding on which intervention is sought.
The Staff, however, believes that the Licensing Board should not rule on whether the Massachusetts Attorney General has shown standing and has identified a specific aspect, but rather should set a schedule for the filing of contentions.
CONCLUSION As discussed above, the Licensing Board should set a schedule for filing contentions before ruling on the Massachusetts Attorney General's petition.
Respectfully submitted,
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- ') O d t c3 x Ann P Hodgdon Counsel for NRC Staff m
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Arlene A. Jorgensen Cour.xl for NRC Staff Dated at Rockville, Maryland this 14th day of June,1993
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'93 JU!1 14 P 4 :12 In the Matter of
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BOSTON EDISON COMPANY
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Docket No. 50-293-OLA
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(Spent Fuel Pool)
(Pilgrim Nuclear Power Station)
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NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter.
In accordance with 10 C.F.R. 6 2.713(b), the following information is provided:
Name:
Ann P. Hodgdon Address:
U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C. 20555 Telephone Number:
(301) 504-1587 Admissions:
U.S. Court of Appeals, District of Columbia Name of Party:
NRC Staff Respectfully submitted, AW v e.I e km Ann P. Hodgdon Counsel for NRC Staff Dated in Rockville, Maryland this 14th day of June,1993
UNITED STATES OF AMERICA
. Jul it U usc NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 93393 j4 p 4 12' In the Matter of
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, si BOSTON EDISON COMPANY
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Docket No. 50-293
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(Pilgrim Nuclear Power Station)
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NOTICE OF APPEARANCE i
Notice is hereby given that the undersigned attorney enters an appearance in the above-L captioned matter. In accordance with 6 2.713(b),10 C.F.R., Part 2, the following i
information is provided:
i Name:
Arlene A. Jorgensen Address:
U.S. Nuclear regulatory Commission Office of the General Ce msel ~
l Washington, D.C. 2055d Telephone Number:
(301) 504-1587 Admissions:
Supreme Court of Minnesota and North Dakota Name of Party:
NRC Staff Respectfully
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rkquth Arlpne A.'Jorgensin, Esquire Counsel for NRC Staff j
Dated at Rockville, Marland l
this 10th day of June,1993 f
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i tniau-uwe UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'93 JIN 14 P4 :12 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD m:+
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BOSTON EDISON COMPANY
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Docket No. 50-293-OLA
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(Spent Fuel Pool)
(Pilgrim Nuclear Power Station)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MASSACHUSETTS ATTORNEY GENERAL'S REQUEST FOR HEARING AND PETITION TO INTERVENE," " NOTICE OF APPEARANCE" for Ann P. Hodgdon and " NOTICE OF APPEARANCE" for Arlene A. Jorgensen 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, by deposit in the Nuclear Regulatory Commission's internal mail system this 14th day of June 1993:
James P. Gleason*
Office of Commission Appellate Chairman Adjudication
- Atomic Safety and Licensing Board Mail Stop: Ici-G-15 OWFN Mail Stop: EW-439 U.S. Nucker Regulatory Commission U.S. Nuclear Regulatory Commission Washir.gton, DC 20555 Washington, DC 20555 Adjudicatory File * (2)
Charles N. Kelber*
Atomic Safety cad Licensing Board Administrative Judge Panel Atomic Safety and Licensing Board Mail Stop: bW-439 Mail Stop: EW-439 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Board Thomas D. Murphy
- Panel
- Administrative Judge Mail Stop: EW-439 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: EW-439 Washington, DC 20555 U.S. Nuclear Regulatory Commission Wr%gton, DC 20555 1
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4' W.S. Stowe, Esq.
Joseph W. Rogers Boston Edison Company Assistant Attorney General 800 Boylston Street Regulated Industries Division 36th Floor Public Protection Bureau Boston, MA 02199 113 Tremont St.,3rd Floor Boston, MA 02111 Office of the Secretary * (2)-
Attn: Docketing and Service Mail Stop: 16-G-15 OWFN U.S. Nuclear Regulatory Commission Washington, DC 20555 hcfA
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's Ann P} Hodgdon U
Counsel for NRC Staff l
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