ML20056G515
| ML20056G515 | |
| Person / Time | |
|---|---|
| Site: | River Bend  |
| Issue date: | 08/26/1993 |
| From: | Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#393-14243 OLA, NUDOCS 9309030216 | |
| Download: ML20056G515 (14) | |
Text
e f August 26,1993 -
s UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION
'93 T"~ 26 P d 35 :
BEFORE THE ATOMIC SAFETY AND LICENSING BOARQ In the Matter of ) Docket No. 50-458 - O L A
) l GULF STATES UTILITIES COMPANY ) (Transfer of Ownership and Control) (
) l (River Bend Station, Unit 1) )
1 )
l NRC STAFF'S RESPONSE ,
TO CAJUN ELECTRIC POWER COOPERATIVE, INC'S COMMENTS, PETITION AND AMENDED PETITION FOR LEAVE TO INTERVENE, ;
AND REQUEST FOR HEARING AND CONDITIONS, ON NOTICE OF CONSIDERATION OF ISSUANCE OF AMENDMENT l l
INTRODUCTION On July 7,1993, the Nuclear Regulatory Commission published a " Notice of l l
Consideration of Amendments to Facility Operating License, Proposed No Significant l l
Hazards Consideration and Opportunity for Hearing," in the Federal Register, and solicited comments and requests for hearing by August 6,1993. 58 Fed. Reg. 36,423,
]
36,424 (July 7,1993), in connection with amendments proposed by the Gulf States Utility I j Company (Gulf States), to authorize it to become a wholly owned subsidiary of Entergy
- Corporation (Entergy), and to include Entergy Operations, Inc. (EOI) on the River Bend license as a new licensee to operate, manage and maintain River Bend. 58 Fed.
Reg. 36,435-36.
On August 6,1993, Cajun Electric Cooperative, Inc. (Cajun), co-owner and co-licensee of River Bend, filed a petition to intervene, comments on the no significant 9309030216 930826 PDR C ADOCK 05000458 .
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hazards consideration determination and request for a hearing on Gulf States' request to amend the River Bend license to include EOI as a licensee (Petition)' on the grounds that l t
EOI is not assured of the financing necessary to maintain the safe and reliable operation of River Bend. Petition at 1-5,11. On August 17,1993, Cajun filed an amendment to this petition (Amendment To Petition)2 wherein it maintained, inter alia, that the proposed license amendment application could not be made or approved without Cajun's consent, that the amendment would affect Cajun's rights and that the amendment would be contrary to existing River Bend license conditions that are contained in the license for Cajun's benefit. Id., at 2-5, 9,14.
The Staff believes Cajun has established its standing to intervene in this proceeding, subject to filing an amended petition under 10 C.F.R. $ 2.714(a)(3),(b) and (d)?
2 " Cajun Electric Power Cooperative, Inc.'s, Comments, Petition For Izave To Intervene, And Request For Hearing And Conditions, On Notice Of Consideration Of Issuance Of Amendment To Facility Operating License.. Proposed No Significant Hazards Consideration Determination And Opportunity For Hearing," dated August 6,1993.
2 Cajun Electric Power Cooperative, Inc.'s, Amendment To Its Previously Filed Comments, Petition For leave To Intervene, And Request For Hearing And Conditions, On Notice Of Consideration Of Issuance Of Amendment To Facility Operating License, Proposed No Significant Hazards Consideration Determination And Opportunity For Hearing," filed August 17, 1993.
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- ' It is presumed Cajun is here seeking to intervene only on the amendment to transfer [
operational authority from Gulf States to EOI, and not on the amendment involving permission for Gulf States to become a subsidiary of Entergy. Although the Petition, at 1, states that Cajun wishes to intervene on a notice of license amendment appearing l at 58 Fed. Red. 36,435, which involves the transfer of ownership of Gulf States, the wording of the Petition and the Amendment to the Petition indicates that Cajun is seeking to intervene on the amendment appearing at 58 Fed. Reg. 36,436, which involves the transfer of the operation of River Bend to EOI. See, e.g. Petition at 1-5; Amendment To Petition at 2-5. This matter might be clarified pursuant to 10 C.F.R. f 2.714(a)(3).
(continued...)
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DISCUSSION [
- 1. I2 pal Bases For Standine Q
4 The Atomic Energy Act of 1954 (AEA) 42 U.S.C. I 2011 et seq., provides that s
the Commission shall provide for the protection of property, as well as of life, from .
radiological hazards. See AEA, il 103.b,161.b,42 U.S.C. 66 2133(b),2201(b); sec :
also AEA, f 5 2.f, 3,170, 42 U.S.C. if 2012(f), 2013, 2210. The AEA further 4
provides:
In any proceeding under this Act, for the granting, suspending, revoking, I or amending of any license or construction permit, or application to transfer control, . . . the Commission shall grant a hearing upon the l request of any person whose interest may be affected by the proceeding, and shall admit any such person as a pany to such proceeding.'
- i AEA, f 189.a(1),42 U.S.C. f 2239(a)(1); see also 10 C.F.R. 6 2.714(a)(1).
The Commission's regulations, 10 C.F.R. 6 2.714 (a)(2), provide the requirements for a petition to intervene:
The petition shall set fonh with particularity the interest of the petitioner i
in the proceeding, how that interest may be affected by the results of the s proceeding, including the reasons why petitioner should be permitted to l intervene, with particular reference to the factors in paragraph (d)(1) of i this section, and the specific aspect or aspects of the subject matter of the j proceeding as to which petitioner wishes to intervene.
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(... continued)
See Public Service Co. of New Hampshire, (Seabrook Station, Unit I), CLI-91-14, 34 NRC 261, 266-68 (1991), on the necessity of carefully considering and citing the amendments on which one wishes to intervene. i l
' " Person" is defined to include a corporation or an association. AEA { 11.s, 42 U.S.C. f 2014(s); see also 10 C.F.R. { 2.4.
The factors to be considered in determining whether to intervene are set out in 10 C.F.R. 1 5 2.714(d)(1), to include:
(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.
In determining whether a petitioner has sufficient interest in a proceeding to be t
entitled to intervene as a matter of right under the Atomic Energy Act, judicial concepts of standing are applied. See, e.g., Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 & 2), CL1-93-16, 38 NRC __ (August 19,1993); #etropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327 (1983); Ponland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, l h
4 NRC 610 (1976). The Commission has held that these judicial concepts require a ,
i showing (a) that the action will cause " injury-in-fact," and (b) that the injury is " arguably within the zone of interest" protected by the statutes governing the proceeding. Vogtle, slip op. at 10-11; TMI,18 NRC at 332; Pebble Springs,4 NRC at 613. Thus, in order i
to establish standing, the petitioner must show (1) that he has personally suffered a ;
distinct and palpable harm that constitutes injury-in-fact, and (2) that the injury fairly can be traced to the challenged action.
When the petitioner is an organization, it may meet the injury-in-fact test for l standing either by demonstrating an effect upon its organizational interest or by alleging O
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l Qat its members, or at least one, may suffer immediate or threatened injury. Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-549, 9 NRC 644, 646-47, citing Wanh v. Seldin, 422 U.S. 490 (1975); see also Sierra Club v. Monon 405 U.S. 727, 739-40 (1972). In order to make the requisite showing as to the latter factor, the organization must provide identification of at least one member who will be l injured, a description of the nature of the injury, and an authorization for the organization to represent the individual. Houston Lighting & Power Co. (Allens Creek Nuclear
- Generating Station, Unit 1), ALAB-535,9 NRC 377,390-96 (1979).
- 2. Cajun Shows The Amendment Mieht Cause "Injurv-In-Fact.* ;
The necessity of showing " injury-in-fact" is to assure that the Petitioner has a real interest in the proceeding and that the petitioner might suffer an actual injury from the proposed action. Pebble Springs,4 NRC at 613. In Vogtle, the Commission stated:
The alleged injury must be concrete and particularized, fairly traceable to ,
the challenged action, and likely to be redressed by a favorable decision.
See eenerallv Lujan v. Defenders of Wildlife,112 S. Ct. 2130, 2136 (1992); Public Serv. Co. of New Hampshire (Seabrook Station, Unit 1),
CLI-91-14, 34 NRC 261, 266-67 (1991). Injury may be actual or
, threatened. Wilderness Soc'y v. Griles, 824 F.2nd 4,11 (D.C. Cir.
1987).
It is not necessary that a petitioner establishes that injury will result from the proposed action to show an injury-in-fact, but only "that it may be injured in fact" by the ,
proposed action. Virginia Electric & Power Co. (North Anna Power Station, Units 1 & l i'
2), ALAB-342,4 NRC 98,104-05 (1976).
l Cajun's original Petition alleges that it is a co-owner of River Bend (Petition :
at 8), that River Bend is physically located within the service area of one of Cajun's 1
j 1- t members, the Dixie Electric Membership Corporation (Petition at 11), and that grant of j i
the amendments will adversely impact River Bend's safe and reliable operation (id.).5 In the Amendment to Petition, Cajun essentially alleges that Gulf States had no authority to file the license amendment application without the consent of Cajun as a co-owner of I River Bend, that grant of the application might adversely affect its rights under the ;
operating agreement for River Bend, and that grant of the amendment will adversely affect its rights under the present license. Amendment To Petition, at 2-5,9,14. Cajun !
has shown it will suffer concrete and particularized harm traceable to the license amendment if the proposed new plant operator does not have the resources to safely !
i maintain and operate River Bend (Petition at 11), if the proposed amendment would cause i
j a lessening of its influence, as an owner, to see that the plant is safely maintained and i operated, or if the proposed amendment will effectuate a limitation on the new operator's l
liability for misdeeds in the operation of River Bend. Amendment To Petition l at 2-5,11.6 Similarly, Cajun sufficiently establishes that the alleged harm might be ;
j redressed in the proceeding by denying the amendment and keeping Gulf States primarily l
I responsible for the safe operation of River Bend, or by granting the amendment with '
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I The Petition talks in terms of litigation between Cajun and Gulf States regarding the ownership of River Bend, but that matter is extraneous, and not a basis for standing. 1 As Cajun sets out, regardless of the outcome of that litigation, Cajun has a substantial ;
interest in maintaining the safe and reliable operation of River Bend. Petition at 11.
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' E.g., a licensee-owner is liable to provide for financial protection in event of a j i
radiological accident. 10 C.F.R. f E 140.11,50.54(w). i 1
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. I appropriate license conditions to protect Cajun's interests.' See Vogtle, slip. op. .
at 22-23. Cajun shows, in the Amendment To Petition, that it might sustain an actual -
injury if Gulf States lacks the authority to file the application on Cajun's behalf and that the grant of the application might adversely affect rights it has under the present license, j At 2-5, 9,11,14 Thus, Cajun shows it could suffer an " injury-in-fact" from the
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l proposed amendment.
- 3. Caiun is In The " Zone of Interest" Protected By The Atomic Enerev Act
. Although standing to intervene in Atomic Energy Commission and Nuclear ;
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Regulatory Commission proceedings has been characterized as protecting radiological l health and safety, the zone of interest protected by the AEA includes the protection of :
property that may be injured by radiation.' See also Florida Power & Light Co. (Turkey l a
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Cajun has proposed license conditions which it suggests would protect its interests i should the amendment be approved. See Amendment to Petition at 12-13, Petition j at 26-30.
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In Nonh Anna,4 NRC at 105, the Board stated:
[W]e may also assume, without deciding, that zone is broad enough to encompass as well an interest in avoiding an economic loss which might
] be directly tied to the radiological releases (e.g. a loss occasioned by the
- necessity to cease doing business in the area affected by the r
- leases). j The Board there ruled that petitioner could not intervene to protect its business reputation l as that interest is not in the zone of interest protected by the AEA. 4 NRC at 105-06.
j Similarly, the economic in'.erest of ratepayer or taxpayer do not provide a basis for standing under the AEA. See e.g., Tennessee Valley Authority (Watts Bar Nuclear Plant, i Units 1 & 2), ALAB-413,5 NRC 1418,1420-21 (1977).
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.g.
Point Nuclear Generating Plant, Units 3 & 4), ALAB-952, 33 NRC 521, 528-30 (1990).'
In Findings premising the AEA, i 2.f,42 U.S.C. f 2012(j), the Congress found that the use and control of atomic energy is necessary "for protection against possible interstate damage" occurring from the operation of nuclear facilities in interstate commerce, and stated this was a purpose of the Act. AEA 6 3.d,42 U.S.C. f 2013(d).
Section 103.b of the AEA,42 U.S.C. 5 2.133(b), provides, inter alia, that licenses may be issued to those who will observe standards "to minimize danger to life and property."
Section 16)(b) of the AEA,420 U.S.C. 6 2201(b) provides that the Commission shall issue standards to " minimize danger to life and property." See also AEA f 170, 42 U.S.C. 6 2209, providing for indemnification and limitations on liabt.'ity for damages caused by radiological accidents. Thus, protection from radiological damage that might be caused by the operation of nuclear facilities, whether it be to health or to the safety l of property, appears to be within the zone of interest protected by the AEA. See Petition at 11. Further, as alleged in the Amendment To Petition, at 2-5, Cajun's property interest in River Bend and interests under the license could be materially affected by transferring operational authority for River Bend from Gulf States to EOI and it might affect River Bend license conditions which inure to Cajun's benefit. As a licensee under
- The petition also indicates that intervention is sought to protect the safety of persons who are members of a subsidiary cooperative. Petition at 11. To do so, Cajun must identify the name and address of at least one such member who wishes to be represented by Cajun in this proceeding. See e.g., Allens Creek,9 NRC at 390-96; Vennont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-7,25 NRC 116, h 118 (1987).
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- i the AEA, Cajun appears to be in the " zone ofinterest" protected by that Act. Cajun may intervene to protect its interests in River Bend from radiological damage that might be l a
caused by the subject amendments, and to protect it from potential liability should.
operation of the facility as a consequence of the license amendment be adversely affected.
- 4. Cajun Has Identified A Specific Aspect Of The Proceeding As To Which It >
Wishes To Intervene Section 2.714(a)(3) of the Commission's Regulations,10 C.F.R. i 2.714(a)(3),
requires that a petitioner identify in its petition to intervene an aspect of the proceeding ;
as to which it wishes to intervene. Cajun has here identified the financial qualifications l
to maintain the safe and reliable operations of River Bend as the issues it wishes to litigate. Petition at 11. The financial qualifications of a proposed transferee is a matter l to be considered in NRC license amendment and transfer proceedings. See 10 C.F.R.
il 50.33(f),' 50.80(b). Further, Cajun has identified the basic question of whether Gulf States has the legal authority to seek this amendment on its behalf and whether ;
amendment of the license would affect its rights. Amendment to Petition, at 2-5. The petitioner has identified aspects of the proceeding as to which it wishes to intervene. l l
- 5. Issues Concerning Whether The Proposed License Amendments Present No Significant Hazards Considerations And May Be Made Immediately Effective l Cannot Be Considered By The Licensing Board
- Cajun's Petition, at 12-29, deals with whether a hearing should be conducted prior ;
to a no significant hazards consideration determination and whether a significant reduction 1 in the margin of safety may be caused by the grant of subject amendment precluding i
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' It is not clear that EOI as a managing agent of River Bend would be an " electric j utility" as defined in 10 C.F.R. i 50.2.
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making the amendment effective prior to hearing. These are not issues before this Board, ;.
and may only be considered by the Staffin determining whether to make the amendment effective prior to hearing, and by the Commission." l Section 189.a(2)(A) of the AEA,42 U.S.C. 6 2239(a)(2)(A), provides: ,
The Commission may issue and make immediately effective any amendment to an operating license, upon a determ'mation by the Commission that such amendment involves no significant hazards '
consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person. Such amendment may be issued and made immediately effective in advance of the holding and completion of any required hearing. . . . . In all other respects such amendment shall meet the requirements of this Act.
l Section 50.91(a)(4) of the Commission's Regulations,10 C.F.R. 6 50.91(a)(4),
provides:
Where the Commission makes a final determination that no significant hazards consideration is involved and that the amendment should be issued, the amendment will be effective upon issuance, even if adverse :
public comments have been received and even if an interested person meeting the provisions for intervention called for in i 2.714 of this chapter has filed a request for a hearing. The Commission need hold any required ;
l hearing only after it issues an amendment, unless it determines that a i significant hazards consideration is involved in which case the Commission will provide an opportunity for a prior hearing.
- " Among the issues Cajun attempts to raise is the possibility that River Bend may be shut down by EOI because EOI would not have funds to operate the facility. See Petition at 23-25. The determination of whether to operate a safe facility which meets the Commission's regulations rests primarily with the licensee, and the NRC's concern, l if a licensee determines not to operate such a facility, is that the shutdown be done safely and that there be adequate funds to perform that task and to safely decommission the facility. See Long Island Lighting Co. (Shoreham Nuclear Power Station), CLI-90-8, 32 NRC 201,207 (1990); Id., CLI-91-2,33 NRC 61,70 (1991); 10 C.F.R. il 50.75, 50.82.
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Section 50.58(b)(6),10 C.F.R. 6 50.58(b)(6) provides:
No petition or other request for review of or hearing on the staff's significant hazards consideration determination will be entertained by the Commission. The staff's determination is final, subject only to the Commission's discretion, on its own initiative, to review the determination.
Thus, the issue of whether the amendment does or does not involve a significant hazard consideration and whether it may be made immedi;tely effective cannot be considered by this Board, but is solely to be decided by the NRC Staff and the Commission. See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-86-12, 24 NRC 1, 4-6 (1986), rev'd in pan on other grounds, San Luis Obispo Mothersfor Peace v. NRC, 799 F.2d 1268 (9th Cir.,1986); Vennont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 31 NRC 85, 90-91 (1990).2 Cajun's petition provides no basis for intervention or a hearing on whether the subject amendments should be issued prior to hearing.
CONCLUSION For the above stated reasons, petitioner, Cajun Electric Power Corporative, Inc.,
should provisionally be found to have standing, subject to amending its petition pursuant to 10 C.F.R. 6 21.714(a)(3) and (b) to clarify its petition and to set forth litigable contentions. Cajun may not intervene before this Board on the issue of whether that 2
The petitioner's arguments on why the proposed amendments should not be made immediately effective will be considered by the Staffin considering whether to make the amendments effective before completion of any requested hearing.
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amendment, if properly applied for, should be made immediately effective under 10 C.F.R. 6 50.91(a)(4), as that matter is not within the jurisdiction of this Board.
Respectfully submitted,
- i Edwin J. R s !
Deputy p sistant Geneml Counsel '
for Reactor Licensing Dated at Rockville, Maryland this 26th day of August 1993 l r
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f UNITED STATES OF AhiERICA NUCLEAR REGULATORY COMMISSION .g3 n,, ,m n zo c4.;,c_
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket No. 50-458
)
GULF STATES UTILITIES COMPANY ) (Trartsfer of Ownership and Control)
)
(River Bend Station, Unit 1) )
} :
1 CERTIFICATE OF SERVICE I
I hereby certify that copies of "NRC STAFF'S RESPONSE TO CAJUN ELECTRIC POWER COOPERATIVE, INC'S COMMENTS, PEITnON AND AMENDED i PETITION FOR LEAVE TO INTERVENE, AND REQUEST FOR HEARING AND i CONDITIONS, ON NOTICE OF CONSIDERATION OF ISSUANCE OF l l AMENDMENT" 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 j J in the Nuclear Regulatory Commission's internal mail system, this 26th day of August 1993:
B. Paul Cotter, Jr.* Peter S.12m*
Chairman Administrative Judge Administrative Judse Atomic Safety Atomic Safety and Licensing Board and Licensing Board Mail Stop: EW-439 Mail Stop: EW-439 U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission 4
Commission Washington, DC 20555 i Washington, DC 20555 Office of Commission Richard F. Cole Appellate Adjudication
- Administrative Judge Mail Stop: 16-G-15 OWTN Atomic Safety U.S. Nuclear Regulatory and Licensing Board Commission Mail Stop: EW-439 Washmgton, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 !
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Adjudicatory File * (2) Mark J. Wetterhahn, Esq. I Atomic Safety and Joseph P. Knotts, Jr., Esq. l Licensing Board Panel David M. Souders, Esq.
Mail Stop: EW-439 Winston & Strawn i U.S. Nuclear Regulatory 1400 L Street, N.W. l Commission Washington, DC 20005-3502 Washington, DC 20555 James D. Pembrook, Esq.
Atomic Safety and Janice L. Lower, Esq. i Licensing Board Panel
- Thomas L. Rudebusch Mail Stop: EW-439 Duncan, Weinberg, Miller -
U.S. Nuclear Regulatory & Pembroke, P.C. ,
Commission 1615 M Street, N.W. '
Washington, DC 20555 Washington, DC 20036 Office of the Secretary * (2) i
, Attn: Docke. ting and Service Mail Stop: 16-G-15 OWFN U.S. Nuclear Regulatory l Commission j Washington, DC 20555 t
Edwin J. is Deputy ssistant General Counsel for, eactor Licensing i
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