ML20058K738
| ML20058K738 | |
| Person / Time | |
|---|---|
| Site: | Limerick, Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/03/1993 |
| From: | Chilk S, Deplanque E, Remick F NRC COMMISSION (OCM), NRC OFFICE OF THE SECRETARY (SECY) |
| To: | NEW JERSEY, STATE OF |
| References | |
| CON-#493-14502 CLI-93-25, MISC-93-01, MISC-93-1, NUDOCS 9312160021 | |
| Download: ML20058K738 (14) | |
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7:g UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 33 DQ:-3 CCMMISSIONERS Ivan Selin, Chairman Kenneth C.
Rogers Forrest J.
Remick E.
Gail de Planque SERVED MC - 31993 In the Matter of STATE OF NEW JERSEY Docket No. Misc. 93-01 Department of Law and Public Safety's Requests, dated October 8, 1993.
MEMORANDUM AND ORDER CLI-93-23_
INTRODUCTION In this order the Commission denies the petition for leave to intervene and request for an adjudicatory hearing filed on October 8, 1993, by the State of New Jersey Department of' Law and Public Safety ("New Jersey").
New Jersey seeks a hearing on the legality of a series of barge shipments along New Jersey's coast.
The shipments involve a total of 33 barge trips to move 560 slightly irradiated nuclear fuel assemblies from the Shoreham nuclear power plant in New York to the Limerick nuclear power plant in Pennsylvania.
Several trips had been completed at the time of New Jersey's request; the remainder are ongoing and should be concluded during 1994.
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9312160021 931203 PDR ADOCK 05000322 C
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2 As we amplify below, there is not now, nor was there at the l
time of the New Jersey's request for a hearing, any pending application for a license or permit for the Philadelphia Electric Company ("PEco"), owner of the Limerick plant, or for the Long Island Power Authority ("LIPA"), owner of the Shoreham plant, related to the fuel shipments.
Accordingly, there are no
" proceedings" in which New Jersey may intervene or be provided a hearing.
Moreover, even were there an ongoing proceeding related to the fuel shipments or a closed proceeding that could in some manner be resuscitated, New Jersey has failed to satisfy our rules governing intervention in hearings or reopening of proceedings.
The shipment of the Shoreham fuel was also the subject of a l
request for NRC action filed by New Jersey under 10 C.F.R.
S 2.206.
That request is currently under consideration by the l
Director of the Office of Nuclear Materials Safety and Safeguards.
On October 22, 1993, the Director denied that portion of the request seeking immediate action.
Previously, in j
connection with a lawsuit that New Jersey filed to halt the i
Shoreham-to-Limerick barge shipments, the United States District a
Court for the District of New Jersey, the United States Court of
[
r Appeals for the Third Circuit and the United States Supreme Court i
cach denied requests to enjoin the shipments.
BACKGROUND In a scheduling order issued on October 14 the Commission r
stated that New Jersey appeared to seek (1) late intervention for s
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" good cause" and a hearing on PECo's license amendment (dated June 23, 1993) allowing PECO to receive and possess Shoreham's fuel, and (2) intervention and a hearing on LIPA's " transfer and transportation of the Shoreham fuel."
Unpublished order, October 14, 1993 (quoting New Jersey's 10/8/93 filing at 44 and 46).
The Commission's October 14 order sought comment by the parties on:
(1) whether at this time either matter referenced by New Jersey gives rise to an opportunity for a hearing under section 189 of the Atomic Energy Act; and (2) if so, whether New Jersey's submission meets the applicable standards for intervention under 10 C.F.R. 5 2.714.
The Co= mission set an expedited briefing schedule allowing for initial and responsive comments by New Jersey, PECo, LIPA and
]
the NRC staff.
On October 20, New Jersey, PECo and LIPA filed responses.
The NRC Staff filed its response, as scheduled, on October 22.
Thereafter, on October 26, LIPA and New Jersey filed replies.*
POSITIONS PRESENTED New Jersey seeks a hearing on the grant of PECo's license amendment allowing it to receive and possess LIPA's fuel and on LIPA's use of its general license under 10 C.F.R.
S 71.12 to
- By f ailure to observe the Commission's rules on formal requirements for documents --
i.e, by single-spacing rather than double-spacing its reply brief -- New Jersey significantly exceeded the permitted length of the document.
See 10 C.F.R.
S 2.708 (b).
No party having requested that the filing be rejected, we accept it with the admonition that in fairness to all parties, j
any further ignoring of the Commission's rules may lead to
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appropriate sanctions. See 10 C.F.R.
S 2.709.
j l
4 transport the fuel.
New Jersey also maintains that the NRC must notice an opportunity for a hearing on a license for LIPA to transfer fuel to PECo.
New Jersey believes that late intervention is permissible here because it did not receive certain knowledge of the coastal barge shipments in time to come to the Commission sooner.
New Jersey does not dispute that it has failed thus far to fulfill specific requirements that govern intervention under our rules.
LIPA and PECO, as well as the NRC staff, argue in essence that at this time there is no live " proceeding" on the transport of the Shoreham fuel and therefore no right of New Jersey to intervene.
These parties also oppose late intervention.
While there are differences among LIPA, PECo and the NRC Staf f on the precise balancing of the late intervention factors, they all agree that the balance tilts clearly against intervention.
ANALYSIS
- 1. Whether under section 189 of the Atomic Enercy Act any opportunity for a hearina on the Shoreham fuel matter arises at this time in the PECo or LIPA dockets?
The Atomic Energy Act's hearing provision, section 189a (42 U.S.C.
5 2239(a)), states that an opportunity for a hearing must be offered in "any proceeding for the granting, suspending, revoking, or amending of any license or construction permit or e
application to transfer control (emphasis added).
Intervention is not available where there is no pending s
" proceeding" of the sort specified in section 189a.
See Texas Utilities Electric Co.
(Comanche Peak Steam Electric Station, f
~~
4 I
[
5 i
s Units 1 and 2), CLI-92-12, 36 NRC 62, 67 (1992).
PECo, LIPA and l
the NRC staff have amply demonstrated that there is no pending proceeding here.
l A.
PECo license amendment to receive and possess slichtly irradiated fuel License amendments are one of the specified agency actions i
that give rise to an opportunity for a hearing under section 189a.
Accordingly, on March 31, 1993, the NRC published notice of PECo's proposed amendment to allow it to use slightly-irradiated fuel at Limerick, and asked anyone who intended to l
request a hearing to do so by April 30.
See 58 Fed. Reg. 16851 (1993).
The NRC received no requests for a hearing.
The NRC granted PECo's license amendment on June 23.
See 58 Fed. Reg. 36449 (1993).
Not until October 8, 1993, did New Jersey come to the f
Commission with its request for intervention and a hearing on the
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PECo license amendment.
The request came more six months after the NRC had first solicited hearing requests, nearly four months i
after issuance of the amendment itself and two to four months i
after New Jersey became aware of the proposed barge shipments
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(depending on whose version of events one credits).
By any I
definition the PECo license amendment proceeding was over at the i
time of New Jersey's hearing request.
Section 189a does not provide for a hearing opportunity in closed cases. See Texas Utilities Electric Co.,
36 NRC at 67.
l Even if an already-completed S 189a proceeding somehow could be restarted, a number of factors cut against doing so I
l
l 6
here.
Cf. Cities of Car.pbell v FERC, 770 F.2d 1180, '191-92 (D.C. Cir. 1985) (agency discretion to reopen closed matter f
" reserved for extraordinary circumstances").
First, PECo's i
license amendment issued months ago, and the 60-day judicial review period established by the Hobbs Act (28 U.S.C. S 2342) --
i during which a final agency decision arguably remains alive and subject to revision by agency adjudication -- expired en August 22, well before New Jersey sought a hearing.
Cf. Florida Power &
l Licht Co.
(St. Lucie Nuclear Power Plant, Unit 2), CLI-80-41, 12 NRC 650 (1980).
Second, with LIPA and PECo now well into their series of shipments (and stays having been denied), starting a
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S 189a hearing now seems unlikely to lead to meaningful relief.
Finally, as we explain below, New Jersey has not offered " good cause" for coming to the Co= mission so late.
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In sum, the NRC decision to grant the PECo license amendment l
may no longer be revisited in a 5 189a hearing.
New Jersey has advanced various legal argn=ents against the PECo license amend =ent in two existing forums:
a pending federal court case I
(now in the court of appeals) and a pending petition for NRC action under 10 C.F.R. 5 2.206.
It is those forums, not a late-i starting agency adjudicatory hearing, to which New Jersey now must look for relief.*
- The NRC views New Jersey's judicial challenge to NRC actions as outside the court's jurisdiction.
The federal district court agreed with the NRC's jurisdictional pcsition, and the ccurt of appeals recently affirmed.
New Jersev "
LIPA, Civ.
No. 93-4269 (GEB)
(D.
N.J.,
Oct. 12, 1993), affirmed, No. 93-5613
( 3 d Cir., Dec.
1, 1993).
(continued... )
s f
7 B.
LIPA's ceneral license to transport fuel l
New Jersey's request for a hearing on LIPA's authority to transport and transfer the Shoreham fuel rests on a misconception of what a general license is and how it operates.
A general
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license is a license under the Atomic Energy Act that is granted
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by rule and may be used by anyone who meets the terms of the
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rule, "without the filing of applications with the Commission or the issuance of licensing documents to particular persons."
10
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C.F.R.
S 70.18.
NRC rules establish many general licenses
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(e.c.,
10 C.F.R.
SS 31.9, 40.21, 70.19), including a general license for NRC licensees to transport licensed nuclear material P
j in NRC-approved containers.
10 C.F.R.'S 71.12.
1 Thus, contrary to New Jersey's submission, LIPA was not i
4 required to obtain an individual license or license amendment for J
transporting the Shoreham fuel to PECo.'
LIPA already had i
l authority to transport the fuel under the general license created I
by 10 C.F.R.
S 71.12.
It is well established, of course, that an l
t s
(... continued)
New Jersey's S 2.206 petition, on the other hand, was filed l
with the right forum, the NRC itself, and conceivably could lead
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to agency adjudicatory hearings were the NRC to find cause to believe that the PECo license amendment was issued improperly.
l In that case, the agency might begin an enforcement action i
against PECo under 10 C.F.R. 2.202, where New Jersey, on a proper l
showing, could intervene (presuming PECo requested a hearing).
It is also possible that the NRC would decide to take "other action as would be proper" (S 2.206(a)).
' Nor was LIPA required to obtain a special license to i
I transfer the Shoreham fuel.
As the possessor of the Shoreham license, it is already authorized to transfer the fuel to another licensee, such as PECo, pursuant to an NRC rule.
See 10 C.F.R.
S l
70.42 (b) { 5).
I
8 administrative agency may proceed by generic rule rather than by case-by-case adjudication.
- See, e.c.,
American Hospital Ass'n v.
NLRB, 111 S.Ct. 1539, 1543 (1991).
In such situations the rule d
establishing the general license, in effect, replaces individual licensing proceedings.
There would be no point to the NRC's general licensing scheme if, as New Jersey apparently believes, a licensee's mere use of a general license triggered individual licensing proceedings.
New Jersey suggests that the NRC's issuance and amendment of a certificate of compliance for the Shoreham fuel's shipping cask open the door to a S 189a hearing opportunity.
But, assuming (without deciding) that a certificate of compliance triggers a f
S 189a hearing opportunity, New Jersey has neither offered good reason for demanding a hearing so late (the cask's longstanding t
certificate of compliance was amended slightly on August 19, 1993) nor explained in any detail what litigation over the cask design would accomplish, as NRC rules demand.
See 10 C.F.R.
i S 2.1205 (c),
(d).*
Indeed, New Jersey's papers nowhere suggest that the cask is in any way defective or unsafe.
- Where (as here) the NRC has issued no Federal Reaister notice, NRC rules on materials licenses require prospective intervenors (1) to seek a hearing within thirty days after receiving " actual notice" of the agency action or within 180 days after agency action, whichever is earlier (S 2.12 05 (c) (2) ), and (2) to " describe in detail" the timeliness of the hearing request l
and how the result of a hearing would affect the intervenor's concerns (S 2.1205 (d) ).
Here, New Jersey did not submit any hearing request to the NRC until its October 8 letter -- much more than thirty days after New Jersey (by its own admission) had received actual notice of the Shoreham-to-Limerick barge shipments -- and to this date has not " described in detail" how litigation over the cask design would affect its concerns.
9 main grievance -- the routing of the barge shipments -- has nothing to do with the cask's certificate of compliance, which issues to the cask vendor, not to LIPA or PECo.
In sum, we cannot agree that New Jersey can challenge LIPA's use of its general transport license in an adjudicatory hearing or that New Jersey properly has sought a hearing on the r
I certificate of compliance issued for the Shoreham shipping cask.
We therefore cannot agree that a hearing on the transport and i
transfer questions is necessary under 5 189a.
2.
Whether New Jersev's submission meets the aDDl.. cable standards for intervention under 10 C.F.R. 5 2.7147 l
r Given that our analysis shows that there is no section 189a
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proceeding in which New Jersey may intervene, we need not reach l
the second question briefed by the parties.
However, for.
completeness, we shall address how New Jersey's petition would i
i fare under our standards for untimely intervention set forth at t
10 C.F.R. 5 2.714 (a) (1) (i) - (v).
i The first and principal test for late intervention is good i
cause for lateness.
This factor addresses not only why the petitioner did not file in the time provided in the notice of opportunity for hearing, but why it did not file as soon f
thereafter as possible.
See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1048 (1983).
Here, on the basis of documentation by LIPA, PECo and NRC staff, we conclude that New Jersey had sufficient awarentas as early as June (or possibly May) 1993 of a significant likelihood of barge shipments off its coast.
This awareness would have allowed New i
J
9 10 Jersey to request interventien and a hearing prior to issuance of the PEco license amendment.
Common sense suggests that objections at the earliest possible stage can be acce==odated more easily than those raised months later, i
i Not only did New Jersey not file promptly upon learning of t
the barging option, it failed to file promptly upon learning (on i
August 9) that barging was the chosen option.
Our concern is not that New Jersey was " sleeping on its rights" altogether (see New Jersey *s October 26 filing at 3) -- it apparently did initiate a f
number of meetings and ultimately brought suit in federal district court -- but rather that it saw no need to bring to us in the first instance its complaint with the administrative handling of this matter.
As experienced litigators, the New 1
Jersey's attorneys presumably knew that bypassing the NRC in j
favor of bringing suit in the district court, whose jurisdiction was questionable, was at New Jersey's peril.
Even were we to agree arquendo that New Jersey needed some time to decide on a legal course of action after learning of the definite choice by LIPA and PECo to ship by barge, the time by which New Jersey was able to file complete papers and a brief 1
before the United States District Court on September 21 sets an outside limit to the time in which we might have expected a comprehensive filing here addressing all the matters required under our rules.'
New Jersey filed nothing with the Commission, i
i i
For example, New Jersey did not fully provide required i
5 j
information on the contentions which it wishes to litigate, did (continued...)
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however, until October 8, after the NRC had raised entirely predictable jurisdictional objections in the district court.
New Jersey, in short, has offered.To good cause for its untimely effort to initiate a hearing process at the NRC.
Good cause is the weightiest of the late intervention standards.
Lacking a favorable showing on good cause a petitioner must show a compelling case on the remaining factors.
See Texas Utilities Electric Co.
(Comanche Peak Steam Electric Station, Unita 1 and 2), CLI-88-12, 28 NRC 605, 610 (1988),
reconsideration denied, CLI-89-6, 29 NRC 348 (1988); aff'd sub nom. Citizens for Fair Utility Reculation v.
NRC, 898 F.2d 51 (5th Cir. 1990).
New Jersey has given short shrift to the remaining four factors, and we will not address them at length.
We cannot weigh the third factor -- the extent to which an intervenor's participation "may reasonably be expected to assist 5(... continued) not provide responses on several of the factors of S2.714 and to this date has not addressed the necessary factors for a motion to reopen.
As the Commission stated just recently:
in order to chtain a new hearing when the record has been closed, as in this case, a potential intervenor must
" satisfy [both) the late intervention and reopening criteria." CLI-93-1, 37 NRC at 3.
While neither the late intervention nor the reopening regulations specifically mandate that the two separate criteria be addressed in the same cleadinc, our decisions require that both be addressed when a petitioner seeks to intervene late in a proceeding for which the record has closed
[I]t is in the petitioner's interest to address both sets of standards centemporaneously..
Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-04, 37 NRC 156, 161 (1993) (emphasis in original; footnote omitted).
t f
i i
12 e
in developing a sound record" -- in New Jersey's favor.
New Jersey has not set out with the required particularity the i
4 precise issues it im: ends to cover, a summary of evidence or the identity of its witnesses.
See Texas Utilities Electric Co.
(Comanche Peak Steam Electric Station, Units 1 and 2), CLI-88-12, j
28 NRC 605, 611 (1988) (citing cases).
Indeed, New Jersey acknowledges as much, promising a future cure.
Nor can we count the fifth factor -- the potential to
" delay" the proceeding or " broaden" the issues on New Jersey's side of the ledger.
Obviously, while one perhaps cannot meaningfully " delay" a hearing that never began, convening a
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i hearing at this late date would " delay" final resolution of the license amendment's validity and " broaden" the issues by creating l
i litigation where none existed.
As to the second and fourth factors, we agree with NRC Staff l
that there is no "other means" for New Jersey to protect its interest (second factor) and that, because there is no proceeding, there is no " existing party" representing New 1
Jersey's interest.
But, in the totality of the surrounding circumstances, the weight we give these factors is slight.
See Texas Utilities Electric Co.,
37 NRC at 74 (citing cases).
They cannot possibly overcome New Jersey's failure to demonstrate
" good cause" for lateness.
Finally, New Jersey seeks to excuse its tardiness by pointing to cases where sne NRC has permitted intervention six weeks to four years out of time.
See New Jersey's October 26 1
r 13 filing, at 3.
But those cases are easily distinguished as involving leng'hy construction permit or operating license proceedings where hearings already had been granted and were just 7
beginning or, although underway, were far from completion.
The present case is entirely different: there is no ongoing hearing for New Jersey to enter as simply an additional party.
CONCLUSION For the foregoing reasons we deny New Jersey's request for intervention and for an adjudicatory hearing.
It is so ORDERED.
. <}S MGy o
For the Commission' gi' gf"Og i
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Nkk+5 J. DHILK Secretary of the Commission ockville, Maryland, Dated atj' fay of December, this 3-1993
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' Commissioner Remick was not present for the affirmation of this order; if he had been present he would have approved it.
)
1 1
1
+
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of l
STATE OF NEW JERSEY Docket No.(s) HISC. 93-01 (Department of Law and Public Safety's Requests)
CERTIFICATE Of SERVICE I hereby certify that copies of the foregoing COMMISSION ORDER CLI-93-25 have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
- Thomas A. Borden, Esq.
Edwin J. Reis, Esq.
Deputy Attorney General Ann P. Hodgdon New Jersey Department of Environmental Office of the General Counsel Protection and Energy U.S. Nuclear Regulatory Commission Richard J. Hughes Justice Complex Washington, DC 20555 Trenton, NJ 08625
- Lawrence C. Lanpher, Esq.
- Robert Rader, Esq.
Kirkpatrick & Lockhart Mark J. Wetterhahn, Esq.
1800 M Street, NW, South Lobby, 9th Fl. Winston & Strawn Washington, DC 20036 1400 L Street, N.W.
Washington, DC 20005
)
1 Dated at Rockville, Md. this 3 day of December 1993 Office of the 6scretary of the Commission
- Also faxed.