ML20059B030

NRC Staff Response to Commission Questions Posed W/Respect to State of New Jersey Petition for Leave to Intervene & Request for Hearing.* Denies Petition to Intervene & Request for Hearing.W/Certificate of Svc & Notice of Appearance

ML20059B030
Person / Time
Site:	Limerick, Shoreham  File:Long Island Lighting Company icon.png
Issue date:	10/22/1993
From:	Hodgdon A, Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#493-14404 MISC-93-01, MISC-93-1, NUDOCS 9310280009
Download: ML20059B030 (13)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMhilSSION 93 0G ' 22 Pi2 :33  !

4 BEFORE THE COMMISSION

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In the Matter of  ;

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) 1 STATE OF NEW JERSEY ) Docket No. Misc. 93-01 ,

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(Department of Law and Public )

Safety's Requests) )

NRC STAFF RESPONSE TO COMMISSION QUESTIONS POSED i WITH RESPECT TO STATE OF NEW JERSEY'S PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING 4

1 Edwin J. Reis Deputy Assistant General Counsel i for Reactor Licensing Ann P. Hodgdon  ;

I Counsel for NRC Staff t

October 22,1993 i 93102g0009 931o22 PDR ADOCK 0500o322 g l gi o PDR g

October 22,1993 UNITED STATES OF AhERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION i In the Matter of )

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STATE OF NEW JERSEY ) Docket No. Misc. 93-01

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(Department of Law and Public )

Safety's Requests) )

NRC STAFF RESPONSE TO COMMISSION QUESTIONS POSED

• WITH RESPECT TO STATE OF NEW JERSEY'S PETITION FOR LEAVE TO INTERVENE AND REOUEST FOR HEARING INTRODUCTION On October 8,1993, the State of New Jersey Department of Law and Public Safety (Petitioner) filed a request for immediate action pursumt to 10 C.F.R. I 2.206, or, alternatively, a petition for leave to intervene and regtest for a hearing pursuant to 10 C.F.R. f 2.714, regarding an amendment issued to Philadelphia Electric Company ,

(PECo) for the Limerick Generating Station, Units 1 and 2, to receive fuel from Long Island Power Authority's (LIPA) Shoreham Nuclear Power Station and LIPA's transportation and transfer of that fuel to PECo. Pursuant to the Commission's Order of October 14, 1993, the NRC Staff hereby responds to the questions posed by the Commission, at 2, with regard to whether matters raised by the Petitioner give rise to hearing rights under Section 189 of the Atomic Energy Act at this time and whether the Petitioner meets the applicable standards for intervention in 10 C.F.R f 2.714.

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BACKGROUND This matter involves the shipment to the Limerick Generating Station of 560 fuel assemblies that were slightly irradiated by operation at low power for testing purposes in the Shoreham Nuclear Power Station. See PECo's Operating License Change Request, March 8,1993. Previously, on June 14,1991, a possession only license w2s issued to LIPA providing that it may possess but not operate the Shoreham facility. 56 Fed.

Reg. 28424. On June 6,1992, the NRC issued an Order approving the Decommissioning Plan for the Shoreham facility. The Order provided, inter alla, for the fuel to be removed from the site as part of the decommissioning process. 57 Fed. Reg. 27078, 27079.

On March 31, 1993, the Commission published a Notice of Consideration of Issuance of Amendments to the Limerick licenses to allow the receipt and possession of special nuclear material contained in the fuel assemblies and fuel channels from Shoreham. 58 Fed. Reg. 16851, 16867-68. Any person whose interest might be affected I

by this proceeding and who wished to intervene as a party was given an opportunity to file a written request for a hearing and a petition for leave to intervene by April 30, 1993. 58 Fed. Reg.16852. On May 18,1993, the Commission published an Environmental Assessment and Finding of No Significant Impact with regard to PECo's proposal. 58 Fed. Reg. 29010. No petitions for intervention were filed regarding PECo's requested license amendments and the subject amendments were issued on June 23,1993. 58 Fed. Reg. 36449, 36451 (July 7,1993).  ;

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In late May or early June 1993, the Petitioner was informed that the fuel shipments would probably be made by barge along the New Jersey Atlantic coast and into -

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the Delaware Bay for transshipment by rail to the Limerick plant. Affidavit of Jan H.

Freeman on behalf of PECo, dated September 24,1993, at 1, annexed to Philadelphia Electric Company's Response to Commission's October 14,1993 Order. Thereafter, on June 22,1993, a meeting was held in Petitioner's offices between Petitioner, PECo, LIPA and the Coast Guard to discuss these shipments and the route. Id. at 2; Affidavit of Brant Aidikoff on behalf of LIPA, dated September 27,1993, at 1, filed by LIPA in District Court litigation (see note 1, irlfra).

On September 21,1993, the State of New Jersey sought a temporary restraining order in U.S. District Court to prevent the subject fuel shipments. On September 22, 1993, the court denied the State's application and on October 12, 1993, dismissed the State's request for a preliminary injunction of these shipments.' On October 21,1993, the U.S. Court of Appeals denied the injunction pending appeal. The fuel shipments had commenced on September 24,1993. Petition at 2.

As stated above, the State of New Jersey filed before the Commission on October 8,1993.

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' Scc State of New Jersey v. Long Island Pouer Awhority, Civ. No. 93-4269 (GEB), U.S.

Dist. Ct., Dist. of New Jersey.

DISCUSSION ,

A. Neither PECo's amendment allowing it to possess and use Shoreham fuel nor the  ;

transfer and transportation of the Shoreham fuel give rise to any hearing right at '

this time under Section 189 of the Atomic Energy Act.

Section 189a(1) of the Atomic Energy Act, 42 U.S.C. I 2239(a)(1), as here material, provides:

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 affected by the proceeding,  ;

and shall admit any such person as a party to such proceeding.  ;

Under this section hearing rights anse only when a proceeding is pending. Where a license proceeding for an action listed in section 189 was never initiated or where the license proceeding has been terminated by the grant of the permission sought, there is no right to intervene or to a hearing conceming the matter. See Florida Power & Light Co.

v. Lorion, 470 U.S. 729, 739 (1985); Eddleman v. NRC, 825 F.2d 46,48 (4th Cir.

1987); Tc_ ras Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CL1-92-12, 36 NRC. 62, 67 (1992); Id., CLI-93-1, 37 NRC 1, 3 (1993).

In Lorion the Supreme Court, after examining the legislative history of section 189a of the AEA, concluded that there was no right to a hearing under that section absent a particular application for the grant of a permission for the acts listed in that section. 470 U.S. at 739. A petition to revoke or amend an outstanding license t

t under 10 C.F.R 6 2.206 is not such a proceeding under Section 189 of the AEA, and  ;

gives no right to a hearing. Eddleman, 825 F.2d at 48; see also Edlow international Co. ,

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I (Import License For Enriched Uranium For A Country Not Specified), CLI-87-10, 26 NRC 123,126 (1987).

In the Comanche Peak cases, the Commission held that as there was no {I 4

proceeding pending conrzining Unit 1, because that license had been granted, and that there was no ri.qht to intervene or request a hearing in regard to the grant of a license for that unit. 36 NRC at 67; 37 NRC at 3. 1 Neither the amendment to the Limerick license that allowed PECo to receive and possess the Shoreham fuel nor LIPA's determination to transport and transfer the Shoreham fuel provides any right to inten'ene or to a hearing at this time. The license amendment providing that PECo may receive and possess the Shoreham fuel at Limerick was granted on June 23,1993. That proceeding is over and there is no proceeding involving the Limerick license amendment on which one might intervene and request a hearing.

i As Petitioner recognizes (at 46), there never was a proceeding involving LIPA's sansportation of the Shoreham used fuel. There is no matter upon which a petition to intervene and a request for a hearing may be founded in regard to those acts under ,

Section 189 of the AEA. The Petitioner maintains that a proceeding should have been conducted on a proposal to amend LIPA's license to allow the transfer and transportation j of the fuel. See Petitioner's letter of October 20,1993, at 2-3. However, LIPA already had a right, under 10 C.F.R. 66 70.42(b)(5) and 71.12(a), to take these actions under its ,

existing license. No new license or amendment was needed to transport or transfer the t

fuel.2 Further, Petitioner's request that a hearing be commenced under 10 C.F.R.

I 2.206 does not give -ise to any right to a hearing or to intervene under Section 189 of the AEA. Eddleman v. NRC, 825 F.2d at 48; Edlow,26 NRC at 126.

In sum, there is no matter pending at this time giving rise to any hearing rights under Section 189 of the AEA.

B. The Petitioner does not meet the standards for intervention in 10 C.F.R. 6 2.714.

Even if there were a proceeding in which intervention might be granted, petitioner does not meet the applicable standards in 10 C.F.R. $ 2.714 for intervention. The most ,

recent of the licensing actions here involved were approved in the early summer. The times provided in any notices for intervention expired long before then. The notice of LIPA's applications for a possession only license and a decommissioning order provided that a petition to intervene had to be filed by September 20,1990 and January 22,1992, respectively. 55 Fed. Reg. 34098, 34100; 56 Fed. Reg. 66459. The notice on the 1

Limerick amendments to allow receipt and possession of the Shoreham fuel required that ]

1 petitions be filed by Apdl 30,1993. 58 Fed. Reg. 16851, 16868.

One who seeks to intervene in an NRC proceeding after the time provided in the j notice for an opponunity for a hearing has a burden of showing that it has met the standards in 10 C.F.R. { 2.714(a). Metropolitan Edison Co. (Three Mile Island Nuclear 2 Petitioner has generally misconceived the nature of a " general license." See e.g.,

Petitioner's letter of October 20,1993, at 2-3. A licensee may transfer fuel to one who has a license to receive the fuel without the issuance of a separate license or a license amendment by the NRC. 10 C.F.R. i 70.42(b)(5). Similarly, a Commission licensee may transport '

Commission licensed material in certified containers without the issuance of a separate license or a license amendment. 10 C.F.R. { 71.12(a). The transportation of spent fuel by barge is considered in the environmental statement on the original issuance of the license of the nuclear facility. See 51 C.F.R.. f SI.52(a)(5).

Station, Unit 1), CL1-83-25,18 NRC 327,331 n.3 (1983); Boston Edison Co. (Pilgrim Nuclear Station), ALAB-816,22 NRC 461,466 n.22 (1985). Section 2.714(a) requires

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a balancing of the following factors: (1) good cause for failure to file in a timely manner; (2) the availability of other means to protect petitioner's interests; (3) the extent i

to which petitioner can aid in developing a sound record; (4) the extent to which other parties will present petitioner's interests; and (5) the extent to which petitioner's participation will broaden the issues or delay the proceeding.

If a petitioner cannot make a " good cause" showing for its failure to file in a ,

timely manner, the petitioner must make a compelling case on the other factors to be balanced under i 2.714(a). Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units I and 2), CLI-88-12,28 NRC 605,610 (1988), reconsideration denied, CLI-89-6,29 NRC 348 (1988); afd sub nom. Citizensfor Fair Utility Regulation v.

FRC, 898 F.2d 51 (5th Cir.1990). The test for " good cause" under the section is not 1

only why the petitioner did not file in the time provided in the notice of opportunity for l

hearing, but why it did not file as soon thereafter as possible. See Duke Power Co.

(Catawba Nuclear Station, Units 1 and 2), CLI-83-19,17 NRC 1041,1048 (1983);

i Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707,16 NRC 1760, 1764 (1982).

An examination of the facts establishes that there is no good cause for the i

Petitioner's not filing before the Limerick license amendments took effect and fuel shipments staned. As reflected in the Petition, at 10-12, the Petitioner had notice of the .

1 intent to move fuel by barge along the New Jersey coast before the issuance of the formal l 1

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document it mentions in its pleading (at 10), and before actual publication of the notice of issuance of the subject amendments on July 7,1993. The affidavits of Jan H.

,' Freeman and Brant Aidikoff, cited above, show that the Petitioner learned of the probable shipments along the New Jersey coast in late May or early June 1993, and a meeting concerning this route for the fuel shipment was held in its offices with PECo, IJPA, and the U.S. Coast Guard on June 22,1993. No justification exists for the delay of almost four months before the Petition was submitted to the Commission.' While the Petitioner provides no exact date of when it first learned of the contemplated barge shipments of fuel along the New Jersey coast, no " good cause" exists for the Petitioner to first petition for Commission action on October 8,1993, when it learned of the proposed ship;nents -

months before.'

3 Even if, as Petitioner maintains, its time to file did not accrue until August 9,1993, it would have no " good cause" for a 60 day delay. See Petitioner's October 20,1993, letter to the Commission, at 2.

• The Petitioner is at least as untimely with respect to its complaints in regard to the Shoreham license. The opponunities to petition to intervene in regard to the Shoreham Decommissioning Plan were even earlier, and the Petitioner, if it believed license amendments were necessary to transport and transfer the Shoreham fuel by barge, and that alternatives had not been properly considered, could have filed a petition, at the latest, in early July.

m The second factor to be balanced under 10 C.F.R. f 2.714(a) involves whether there are other means to protect petitioner's interest. Other means to protect Petitioner are not readily apparent to the Staff.s The third test in i 2.714(a) is whether the petitioner may reasonably be expected to assist in developing a sound record. Generally, this has required that a petitioner set out, with as much particularity as possible, the precise issues it intends to cover, the identity ofits witnesses and a summary ofits evidence. See Texas Utilities Electric Co.,

CLI-88-12, 28 NRC at 611; South Carolina Electric & Gas Co. (Virgil C. Summer 1

Nuclear Station, Unit 1), ALAB-642,13 NRC 881, 894 (1981). Petitioner fails to demonstrate that this factor is satisfied. Again, although there are allegations of possible harm from the barge shipments, there is no showing of the witnesses who would testify to those matters or the evidence that would be presented. In sum, Petitioner has not shown it could aid in the development of a record on the matters it seeks to litigate.'

i As to the fourth factor in 10 C.F.R. 5 2.714, the Staff concedes that there is no other party with Petitioner's interest in this proceeding, as there is no proceeding. ,

5 Much of this possible claimed damage is to tourism because of public perception that there may be a danger from the shipments. Petition, at 43-45. Perceptions of danger are not physical ,

damage to the environment, and need not be considered under NEPA. Aferropolitan Edison Co.

v. People Against Nuclear Energy, 460 U.S. 766, 775 (1983). "

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' Further, many of the questions the Petitioner indicates it seeks to litigate, such as whether a licensee may transport and transfer spent fuel under 10 C.F.R. El 70.42(b)(5) and 71.12(a),

and whether 10 C.F.R. 6 51.52 properly listed barge transportation of spent fuel, appear to be attacks on NRC regulations. These matters may not ordinarily be litigated in NRC adjudicatory proceedings, see 10 C.F.R. ( 2.758(b), and they are not matters on which the Petitioner has shown an ability to assist in developing an adjudicatory record.

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As to the fifth factor of whether petitioner's participation will broaden the issues t

or delay the proceeding, the Petitioner's participation will broaden the proceeding and (

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- cause delay, as there is no proceeding or hearing pending.

In sum, a consideration of the factors in 10 C.F.R. I 2.714 regarding late-filed ,

petitions shows that the Petitioner has not met the standards for intervention. The petition was filed long after any time for intervention passed and substantially after Petitioner knew of the contemplated barge transportation of the slightly irradiated Shoreham fuel along the New Jersey coast. Petitioner also fails to show that it has competent evidence to produce at an adjudicatory hearing or that the grant of its petition i would not cause a broadening ofissues and delays with little purpose. The Petition does  !

not satisfy the standards for intervention in 10 C.F.R. ( 2.714.

CONCLUSION The Petition to intervene and the request for a hearing should be denied as no matter is referenced by Petitioner which gives rise to any hearing right under Section 189 of the AEA and, even if such matter were referenced, Petitioner has not met the -

standards of 10 C.F.R. 6 2.714 for intervention in NRC proceedings.

Respectfully submitted, j

Edwin J. eis 1 Deputy Assistant General Counsel Reactor Licensing t ,

3 a ,e 91.

I Ann P. Hodgdon on dcw j q-Counsel for NRC Staff l Dated at Rockville, Maryland this 22nd day of October 1993 1

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UNITED STKfES OF AMERICA NUCLEAR REGULATORY COMhESSION

'93 0C122 FI2 33 ,

In the Matter of )

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t STATE OF NEW JERSEY ) Docket No. Misc. 93-01

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(Department of Law and Public )

Safety's Requests) )

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. I 2.713, the following information is provided:  ;

Name: Ann P. Hodgdon i Address: U.S. Nuclear Regulatory Commission ,

Office of the General Counsel i Washington, D. C. 20555 Telephone Number: 301-504-1587 Admission: U.S. Court of Appeals, Distdct of Columbia Name of Pany: NRC Staff Res ifully submitted, ,

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O( / l cW Ann P. Hodgdon j Counsel for NRC Staff l Dated at Rockville, Maryland this 22nd day of October 1993 l

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. P i. '1' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 93 C'" 22 R2:33 In the Matter of )

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GULF STATES UTILITY COMPANY

) Docket No. Misc. 93-01

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(Department of Law and Public ) ,

Safety's Requests) )

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. f 2.713, the following information is provided:

Name: Edwin J. Reis Address: U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D. C. 20555 Telephone Number: 301-504-1578 .

Admission: New York State Court of Appeals U. S. District Court, District of Columbia Name of Party: NRC Staff  ;

Respectfully submitted, ,

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Edwin J. Reis [

Deputy Assistant General Counsel  ;

for Reactor Licensing  ;

i Dated at Rockville, Maryland this 22nd day of October 1993 l i

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.. t :. c UNITED STATES OF AMERICA %Nht-NUCLEAR REGULATORY COMMISSION  !

93 OCT 22' Pi2:33 l BEFORE THE COMMISSlQH l s

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..- In the Matter of )

STATE OF NEW JERSEY ) Docket No. Misc. 93-01

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(Department of Law and Public )

Safety's Requests) )  :

i CERTIFICATE OF SERVICE r

I hereby certify that copies of "NRC STAFF RESPONSE TO COMMISSION QUESTIONS POSED WITH RESPECT TO STATE OF NEW JERSEY'S PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING," and " NOTICE OF  !

APPEARANCE" for Ann P. Hodgdon and Edwin J. Reis in the above-captioned 1 proceeding have been served on the following by facsimile or as indicated by an asterisk, by hand delivery, this 22nd day of October 1993: .

Lawrence C. Lanpher, Esq. Robert Rader, Esq. -l Kirkpatrick & Lockhart Winston & Strawn 1800 M Street, N.W. 1400 L Street, N.W.

South Lobby - Ninth Floor Washington, DC 20005 Washington, DC 20036 Fax: 202-371-5950 Fax: 202-778-9100 i Office of Commission Appellate  !

Thomas A. Borden, Esq. Adjudication * .l Deputy Attorney General Mail Stop: 16 GIS OWFN ~ l New Jersey Department U.S. Nuclear Regulatory Commission .

of Environmental Protection Washington, DC 20555 {

and Energy l Richard J. Hughes Justice Complex Office of the Secretary *  !

Trenton, NJ 08625 ATTN: Docketing and Service i Fax: 609-948-9315 Mail Stop: 16 GIS OWFN j U.S. Nuclear Regulatory Commission j Washington, DC 20555 i

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Ann P. Hodgdon ~

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l Counsel for NRC Staff  ;

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