ML20056B189
| ML20056B189 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 08/13/1990 |
| From: | Barth C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#390-10718 90-617-03-OLA, 90-617-3-OLA, OLA, NUDOCS 9008150176 | |
| Download: ML20056B189 (10) | |
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W 00cKE1ED 3 August 1Y,N UNITED STATES OF AMERICA '90 Atro 13 P6.16 i NUCLEAR REGULATORY COMMISSION frce y SEcitf tMY Q p,igtd,A'lHVdA BEFORE THE ATOMIC SAFETY AND LICENSING BOARD *H In the Matter of )
)
GEORGIA POWER COMPANY )-
)
Docket Nos. 50-424 50-425 p
-(Vogtle Electric Generating Plant, )
Units 1 and 2) )' ASLBP No.90-617 03-OLA
)
Facility Operating License No. NPF-68 _)
' Amendment No. 31, July 10,1990 )
and )
Facility Operating License No. NPF 81 )
Amendment No.11, July 10,1990 )
.NRC STAFF RESPONSE IN OPPOSITION TO GEORGIANS AGAINST NUCLEAR ENERGY'S PETITION FOR LEAVE TO INTERVENE l i
I. INTRODUCTION On July 23, 1990 Glenn Carroll _on behalf of Georgians Against Muclear Energy I
. (hereinafter GANE) filed a Petition to intervene concerning the captioned license amendments issued for the Vogtle Electric Generating Plant, Units 1 and 2. These i
amendments allow the high jacket water temperature (HJWT) trip for the emergency
' diesel generators -(EDGs) to be bypassed when the diesels are started in emergency situations. 55 Fed. Reg. 25756 (June 22,1990).
The Petition should be denied as GANE has shown neither standing or interest, as required by 10 C.F.R. 5 2.714(a)(1) and (d)(1).
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2-II. BACKGROUND By letter da.ed May 25, 1990, Georgia Power Company (GPC) applied to the NRC pursuant to 10 C.F.R. Il 50.59 and 50.90, for amendments to' the Technical 4
Specification (T.S.) 4.8.1.1.2(h)(6)(c) for each of its two Vogtle Facilities, Operating- j Licenses NPF-68 and NPF-81. The proposed amendments would allow the high jacket water temperature sensor trip to be bypassed in an emergency start mode in order to-l minimize the potential for spurious diesel generator trips when the diesels were needed l in an emergency. 55 Fed. Reg. 25756. GPC further requested that the proposed amendments be. processed as emergency Technical Specification changes, and that the - i 1
- amendments be allowed to take effect prior to a hearing as they involved no significant hazards consideration. Id. See 10 C.F.R. !! 50.91, 50.92.
The NRC issued a Consideration of Issuance of Amendments to Facility Operating n Licenses and Proposed No- Significant Hazards Consideration Determination and Opportunity For Hearing (Notice) regarding the proposed amendments on June 15,1990, which was published in the Federal Register on June 22,1990, and renoticed on July 11, 1990. 55 Fed. Reg. 25756, 28484. The June 22,1990 Notice for the Vogtle technical specification amendments solicited comments on the proposed no significant hazards determination, and provided that a person whose interest may be affected by the license-amendments and who wished to participate in an administrative hearing on the proposed amendments may file a written request for hearing and petition for leave to intervene by July 23,- 1990. A final no significant hazards determination was made and the license amendments were issued on July 10, 1990. 55 Fed. ReF. 32337 (Aug. 8,1990).
Subsequently, GANE filed a timely Petition to intervene concerning the grant of the
3-
. license amendments on July 23,1989, and served that Petition on the NRC Staff by first class mail.
111. DISCUSSION A; Standards for Intervention A person' or organization seeking to intervene in a Commission proceeding must satisfy the requirements of 10 C.F.R. I 2.714(a). A petition for leave to intervene must set forth with particularity the petitioner's interest in the proceeding and how the interest will be affected by the results of the proceeding. 10 C.F.R. 5 2.714(a)(2). A pe PJon must state the reasons a petitioner should be allowed to intervene and the specific r,pects of the subject matter of the proceeding as to which petitioner wants to intervene; the burden of meeting these requirements is on the petitioner.1d.; Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit No.1), CLI 83-25,18 NRC 327,331 (1983);
Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit 2), LBP-87 2, 25 NRC 32, 34 35' (1987). A petitioner must also address the criteria of 10 C.F.R.
Q 2.714(d)(1). These criteria are:
(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 effects of any order which may be entered in the proceeding on the petitioner's interest.
To determine whether a petitioner has sufficient interest to intervene in a proceeding the Commission has held that a licensing board may apply judicial concepts of standing. Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2),
CLI 89 21, 30 NRC 325, 329 (1989); Portland General Electric Co. (Pebble Springs
6-4 Nuclear Plant, Units 1 and 2), CLI 76 27, 4_ NRC 610, 617 (1976). Thus, a petitioner :
must show that the action sought in the proceeding will cause "an injury in fact," and that the injury is within the zone of interest protected by the Atomic Energy Act of 1954, as amended or the National Environmental Policy Act. 'St. Lucie,30 NRC at 329; Pebble -
Springs, 4 NRC at 613-14; Northern States Power Co. (Pathfinder Atomic Plant), LBP-8b30,30 NRC 311,313 (1989). In showing " injury in fact," a petitioner must es+ablish (1) that he has personally suffered or will suffer a distinct and palpable harm that s
constitutes an injury in fact, (2) that the injury , sa be traced to the challenged action, I and (3) that the injury is likely to be remedied by a favorable decision. Dellums v. NRC, 1
863 F.2d 968, 971 (D.C. Cir.1988); St. Lucie, 30 NRC at 329; see Nuclear Engineering l l
u Ca, Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, i 1
7 NRC 737, 741-43 (1978).
. An organization may establish standing through the interest of its members or on -
' its own Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-549, 9 NRC 644,647 (1979); Public Service Ca ofIndiana (Marbie Hill Nuclear Generating Station, Units 1 and 2), ALAB 322,3 NRC 328,330 (1976); Pathfhuler,30 NRC at 313.
Organizational standing requires a "real stake" in :he outcome of the proceeding, as well as a showing of an injury in fact within the zone of protected interest. South Teras, 9 NRC at 647, quoting Warth v. Seldin,422 U.S. 490,511 (1975). The " injury in fact" test may be met by an organization in two ways: (1) by a showing of injury to its organi::ational interest, or (2) by showing that its members will suffer an immediate or threatened injury because of the proposed action and that the individual authorizes the organization to represent it. ld. To establish organizational standing on its own an organization must demonstrate that it will suffer an injury which (1) is not a generalized
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[, .; .' 5 -
harm, and (2) is not shared in general by a large class of citizens. Transnuclear, Inc.
(Ten Applications for Low-Enriched Uranium Exports to EURATOM Member Nations),
CL1-77 24,' 6 NRC 525, 531 '(1977); Pebble Springs, 4 NRC at 613-14. The assertion by -
an organization that it has an interest in a proceeding- or that it has an interest in
~ nuclear issues in general is not sufficient to establish independent standing to intervene in a licensing proceeding. Sierra Club v. Morfon, 405 U.S. 727, 739-40 n.8 (1972);
Nuclear Engineering Co.,7 NRC at 741-43; Three Mile Island,28 NRC at 322.
A potential intervenor may not gain standing by alleging to represent the interest of the public at large. Alleging standing premised upon a "prive.te attorney general" theory is not appropriate in-NRC proceedings. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), ALAB 333,3 NRC 804,806 n.6 (1976).
In their July 23, 1990 Petition GANE sets forth the basis on which it wishes to intervene. Those paragraphs will now be reviewed against the intervention standards set forth in 10 CFR 9 2.214(a)(2) and (d)(1) as amplified by the NRC stare decisis discussed supra.
. B. Anolication of Intervention Standards to GANE's Petition.
GANE must show that it has complied with the criteria in 10 C.F.R. 5 2.714(a)(2) and (d)(1) to be permitted to intervene. Under that regulation it must show its right to be made a party to the proceeding, the nature and extent of its interest, and the possible effect of an order in the proceeding on those interests. Three Mile Island,18 NRC at 332 (1983); Pebble Springs,4 NRC at 413.
GANE has not satisfied the regulation or the cases and may not be permitted to intervene. GANE only founded its standing to intervene in this proceeding on the following statements:
1,.
1)-Our right to_ be party to the proceedings lies in our past recognition as intervenor at- the - Georgia Public Service-Commission on the Vogtle I rate increase case and at the Atomic Energy Commission and the Nuclear Regulatory Commission in' the licensing construction; proceedings for; Vogtle Nuclear Plant.
- 2) Our interest in the proceeding stems from a call to help preserve.and protect .the health, lives and property of the Georgians and the citizens of the surrounding area which could potentially be affected by the conditions operating at Plant Vogtle.
The fact that one may have been a party to one proceeding does not, of itself, show standing to be a party in another proceeding. See St. Lucie,30 NRC at 329. This is particularly_ so in regard to the claim that one was a party before a state regulatory commission. As the Commission has held, economic interests as a ratepayer, such as would be considered by a state regulatory agency do not confer standing in NRC proceedings. Sec 7hree Mile Island,18 NRC at 332 n.4; Pathfinder,30 NRC at 313.
Further, although GANE stttes it was a party to the construction permit
. proceeding involving the Vogtle plant before this agency. The grant of that permit was
- not contested. Georgia Power Co. (Alvin: W. Vogtle Nuclear Plant, Units 1 and 2),-
ALA0 276,1 NRC 533, 534 (1975). GANE was admitted as a party in the Vogtle operating license proceeding. LBP 84 35, .20 NRC 887, 916 (1984). This, however, establishes nothing in regard to GANE's present right to be admitted as a party to this license amendment proceeding. See St. Lucie, 30 NRC at 329. Without facts to predicate GANE's standing to intervene in this proceeding or any indication that it could .
be harmed by the license amendment, GANE may not be admitted as a party. Id.
Nor do reasons given in GANE's second numbered paragraph which states that GAME has an interest "to help preserve and protect the health, lives and property of the
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- Georgians ~ and citizens of the surround!::i; ari.s. . ." provide a basis for standing.
Assuming the mantle of a private attorney general and making general public interest.
statements will not meet the NRCs standards for inteniention. See Pebble Springs, 3 NRC at 806 n.6; see also Three Mile Island,10 NRC at 332; Transnuclear,6 NRC at 531.
In sum, GANE has not shown facts to demonstrate its standing or that it or its-memters could be harmed by the subject license amendment.
IV. CONCLUSION The Petition filed by GANE does not identify any possible real injury in fact which could be incurred by GANE itself as an organization or by any of its members as required by 10 CFR I 2.714(a)(2) and (d)(1)(iiii). The Petition should be denied.
Respectfully submitted, Charles A. Barth Counsel for NRC Staff Dated at Rockville, Maryland this 13th day of August,1990 i
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] , UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.t >
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
- In the Ma'tter of - )
)
- GEORGIA POWER COMPANY ) Docket Nos. 50-424
'~
) 50-425 (Vogtle' Electric Generating Plant, )
Units l' and 2) _ ) ASLBP No.~ 90-617-03-OLA
)
Facility Operating License No. NPF-68 )
Amendment No. 31, July 10,1990 )
and )
Facility Operating License No. NPF-81 )
Amendment No.11, July 10,1990 )
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter. In accordance with 10 C F.R. 5 2.713(b), the following -
.,armation is provided:
Name: Charles A. Barth Address: U.S. Nuclear Regulatory Commission Office of the Genaal Counsel Washington, DC 20555' Telephone Number: 301-492-1589 Admission: Supreme Court, State of Indiana United States Supreme Court United States Court of Appeals,7th Circuit United States District Courts, State of Indiana 1
Name of Party: NRC Staff Respectfully submitted, m
Charles A. Barth Counsel for NRC Staff-Dated at Rockville, Maryland 1 this 13th day of August,1990 l I '
1' UNITED STATES OF AMERICA N
.*.. U C NUCLEAR REGULATORY COMMISSION 90 MG 13 . P 61d -
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Opict 0F SECR W'"L 00CKIIING A SI"'IC in the Matter of )
) Docket Nos. 50-424 GEORGIA POWER COMPANY ) 50-425,
)
(Vogtle Electric Generating Plant, ) ASLBP No. 90-617-03-OLA Units 1 and 2) )
)
Facility Operating License No. NPF-68 )
Amendment No. 31, July 10,1990 )
and )
Facility Operating License No. NPF-81 )
- Amendment No.11, July 10,1990 )
CERTIFICATE 0F SERVICE I hereby certify that conies of "NRC STAFF RESPONSE IN OPPOSITION TO GEORGIANS AGAINST NUCLEAR ENERGY PETITION FOR . LEAVE TO INTERVENE" and " NOTICE OF APPEARANCE OF CHARLES A. BARTH" in the above captioned proceeding have been served on the followin;; by deposit in the' United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by a double asterisk by use of express mail service, or as indicated by a triple asterisk by hand delivery, this 13th day
. of August,1990.
Charles Bechhoefer, Chairman *" Emmeth A. Luebke Administrative Judge Administrative Judge Atomic Safety and Licensing 5500 Friendship Boulevard Board Panel Apartment 1923N U.S. Nuclear Regulatory Commission Chevy Chase, Maryland 20815 Washington, D.C. 20555 Arthur H. Domby, Esq.
James H. Carpenter *" Trantman, Sanders, Lockerman Administrative Judge and Ashmore Atomic Safety and Licensing Candler Building, Suite 1400 Board Panel U.S. Nuclear Regulatory Commission 127 Peachtree Street, N.E.
Atlanta, Georgia 30306
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Washington, D.C. 20555 I
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Director, Adjudicatory File * (2)
Emironmental Protection Dh'ision Atomic Safety and Ucensing Board Department of Natural Resources U.S. Nuclear Regulatory Commission 205 Butler Street, S.E. Washington, D.C. 20555 Suite 1252 Atlanta, Georgia 30334 Office of the Secretary * (2)
U.S. Nuclear Regulatory Commission Atomic Safety and Ucensing WashinFton, D.C. 20555 Board Panel * (1) Attn: Docketing and Service Section U.S. Nuclear Regulatory Commission Georgians Against Nuclear Energy Washington, D.C. 20555 P.O. Box 8574 Atlanta, GA 30306 Atomic Safety and Ucensing Appeal Panel * (6) Ms. Glenn Carroll U.S. Nuclear Regulatory 139 Kings Highway Commission Decatur, GA 30307 Washington, D.C. 20555 Mr. James A. Bailey Stewart D. Ebneter, Esq.' Manager Ucensing Regional Administrator Georgia Power Company USNRC, Region II Post Office Box 1295 101 Marietta St., N.W., Suite 2900 Birmingham, Alabama 35201 Atlanta, Georgia 30303 i
b /$
Ctiarles A. Barth '
I Counsel for NRC Staff I I
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