ML20082E494

Answer Opposing Ctr for Nuclear Responsibility,Inc 831104 Request for Hearing & Petition to Intervene Re Proposed Amend for Hot Channel Factor Limit.No Litigable Contention Submitted.Certificate of Svc Encl

ML20082E494
Person / Time
Site:	Turkey Point
Issue date:	11/21/1983
From:	Bauser M LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OLA, NUDOCS 8311280212
Download: ML20082E494 (13)

Text

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ussac UNITED STATES OF AMERICA .. . .

NUCLEAR REGULATORY COMMISSION 13 NOV 23 N0:25

• BEFORE THE ATOMIC SAFETY AND LICENSING BOARD .

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0 ?. h . i In the Matter of )

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FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250 OLA

) 50-251 OLA (Turkey Point Nuclear )

Generating Units 3 and 4) )

LICENSEE'S-ANSWER TO REQUEST FOR A HEARING AND PETITION FOR LEAVE TO INTERVENE I. Introduction On November 4, 1983, the Center for Nuclear Responsi-bility, Inc. (" Center") and Joette Lorion (collectively referred to as " Petitioners") filed with the Commission a

" Request for a Hearing and Petition for Leave to Interview"

(" Petition") . The Petition pertains to an application filed by Florida Power & Light Company (" Licensee" cr "FPL") for an individual amendment to each of its operating licenses for Turkey Point Units 3 and 4 authorizing (1) an increase in hot channel factor limit from 1.55 to 1.62; (2) an increase in total peaking factor limit from 2.30 to 2.32; (3) changes in overpower set points and thermal-hydraulic limit curves; and (4) deletion of restrictions and limits placed on opera-tion prior to replacement of the old steam generators. The Licensee hereby submits its answer to the Petition.

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II. Standing of the Petitioners Under 10 CFR S 2.714, a petition to intervene is re-quired to set forth with particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, and the specific aspects of the subject matter of the proceeding as to which the petitioner wishes to intervene.

The Commission has held that, in determining whether a person has an interest which may be affected by a proceeding,

" contemporaneous judicial concepts of standing should be used." Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614 (1976);

Northern States Power Co._ (Tyrone Energy Park, Unit 1) , CLI-80-36, 12 NRC 523, 526-27 (1980). To have standing, a person i

must allege that he will be injured in fact as a result of the proc'eeding and must allege that his interests fall within the zone of interests protected by applicable statutes.

Pebble Springs, supra, 4 NRC at 613-14.

The Petition states that Joette Lorion lives and works within 15 miles of Turkey Point and could be significantly and adversely affected if a serious nuclear accident were to occur at the Turkey Point plants. Based upon these

..- . -. . - . ~ - _ . - _ - - - _ . - _

= representations, Ms. Lorion appears to possess standing.*/

The Petition also states that the Center is a corpora-tion with its principal place of business in Miami, that the Center is an " environmental organization," and that the Center's " members" live in, use, and work in the area in the immediate vicinity of Turkey Point and could suffer severe consequences if a serious nuclear accident occurred at those facilities. However, the Petition does not specify how the Center, which is a corporation, could be adversely affected by the issuance of the license amendments, nor does it identify the " members" to which it is referring and demonstrate that these " members" have authorized the Center to represent their interests.

To the extent that the Center is attempting to intervene on its own behalf based upon the claim that it is an " environ-mental organization," intervention should be denied.

The Supreme Court has rejected such grounds for standing, reason-ing that:

-*/ The Petition also claims that the Center and Ms. Lorion are each "an appropriate party to represent the interests of others similarly situated whose interests might other-wise go unrepresented." (Petition, p. 2). To the extent that the Petitioners are attempting to intervene in order to represent the interests of unnamed individuals who have not authorized the Petitioners to intervene on their be-half, the Petition should be denied. See Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit No. 2), ALAB-470, 5 NRC 473, 474-75n.1 (1978); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 (1977); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-77-ll, 5 NRC 481, 483-84 (1977); Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), LBP-75-60, 2 NRC 687, 690 (1975).

, \ [A] mere " interest in a problem," no matter how longstanding the interest and no matter how qualified the organi-zation is in evaluating the problem, is not sufficient by itself to render the organization " adversely affected" or

" aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of pro-tecting our Nation's natural heritage from man's degradations. But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organiza-tion however small or short-lived. And, if any group with a bona fide "special interest" could initiate such litiga-tion, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so.

Sierra Club v. Morton, 405 U.S. 727, 739-40 (1972). This holding is applied in NRC proceedings. See, e.g., Pebble Springs, supra, 4 NRC at 613; Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 421-22 (1976); Nuclear Engineering Co. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 742 (1978).

Similarly, the Center has not established its standing to intervene on behalf of its members. An organization whose members are injured may represent those members in NRC pro-ceedings. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976). However, standing in a representative capacity turns

4, on "whether the organization has established actual injury to any of [its) . . . members." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 40 (1976). As the Appeal Board has pointed out,

[T]he test is whether a cognizable interest of the petitioner might be adversely affected if the proceeding has one outcome rather than another.

And, to repeat, no such interest is to be presumed. There must be a con-crete demonstration that harm to the petitioner (or those it represents) will or could flow from a result unfavorable to it--whatever that result might be.

Nuclear Engineering Co., supra, 7 NRC at 743 (emphasis added). Since the Center has failed to identify its members and failed to demonstrate the personal interest of each member that might be adversely affected by a potential outcome of this proceeding, it is impossible to verify whether each or any of these members has standing to intervene in this proceeding. Consequently, the Center has not presented the requisite showing to enable it to intervene in a representa-tive capacity on behalf of members.*/ See Houston Lighting

~*/ On April 19, 1982, Ms. Lorion submitted an affidavit to the United States Court of Appeals for the District of Columbia Circuit in Lorion v. United States of America and United States Nuclear Regulatory Commission (No. 82-1132) which stated in part:

. . . In June of 1981, I determined to focus my activity upon what I perceived to be dangerous conditions created by the Turkey Point Reactors. As a vehicle for symbolizing and expressing my concern, I employed the name " Center for Nuclear Responsibility" and developed the symbolic depiction used on the stationery bearing that name.

(Footnote continued on next page)

d t and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 389-97 (1979). Furthermore, even if it were assumed that the Center has a particular member who may be adversely affected by a possible outcome of this proceeding, there is no concrete ir.dication that the member wishes the Center to represent him or her in this proceeding.

As a result, the Center would not be permitted to intervene on behalf of such a member. Houston Lighting and Power Co.,

supra.

In short, the Center has not demonstrated any right to intervene on its own behalf or on behalf of any members.

Therefore, its request to intervene as a matter of right should be denied.

Insofar as discretionary intervention is concerned, the Center has not even attempted to make the required showing.

(Footnote continued)

. . . Although I intend to organize and develop the Center into a legal entity through which others who share my goals may associate to more effectively pursue these goals, the Center for Nuclear Responsibility does not now have and has not at any time since June 1, 1981, had:

(a) any members or directors other than myself; (b) any employees; (c) any inde-pendent legal status as a corporation or otherwise; or (d) any other characteristics which would give it a legal status or subject it to the control or direction of any person other than me.

In view of those statements, it seems particularly appropriate to deny intervention to the ienter unless it makes such a showing.

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See, e.g., Portland General Electric Co., supra, 4 NRC at 616. As a result, no basis has been identified for such intervention and it should not be granted.

III. Contentions of the Petitioners Paragraph six of the Petition identifies seven conten-tions, lettered (a) through (g). In general, however, they are vague and ambiguous, and Licensee believes that none of them raise any issue of safety significance. Nevertheless, it might prove helpful if the parties were to discuss the contentions among themselves and attempt further specifica--

tion and refinement. In addition, under the Commission's rules in section 2.714, contentions need not be established now. Accordingly, Licensee requests that the Board defer ruling on the contentions presented in the Petition. If the Board is otherwise inclined, however, Licensee requests that it be provided with an opportunity to promptly file responses to the contentions.

IV. Summary and Conclusion The right of Ms. Lorion to a hearing is dependent upon the Board determining -- preferably at some later time --

that she has presented at least one acceptable contention.

For the reasons stated above, however, the Center has not

• i demonstrated its standing to intervene in this proceeding and its request for a hearing and intervention should be denied.

Respectfully submitted, kked AL _- .

Harold F. Reis Michael A. Bauser Steven P. Frantz Of Counsel: Lowenstein, Newman, Reis &

Axelrad, P.C.

Norman A. Coll 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Steel, Hector & Davis (202) 862-8400 Southeast Bank N.V.

Suite 1400 100 S. Biscayne Boulevard Miami, FL 33131 (305) 577-2800 Dated: November 21, 1983

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-520 OLA

) 50-521 OLA (Turkey Point Nuclear )

Generating Units 3 and 4) )

NOTICE OF APPEARANCE OF COUNSEL Notice is hereby given that Michael A. Bauser enters an appearance as counsel for Florida Power & Light Company in the above captioned proceeding.

Name: Michael A. Bauser Address: Lowenstein, Newman, Reis & Axelrad, P.C.

1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Telephone: (202) 862-8476 Admissions: District of Columbia Court of Appeals Name of Party: Florida Power & Light Company Post Office Box 14000 Juno Beach, FL 33408 A))/L Michael A. Bauser Lowenstein, Newman, Reis & Axelrad, P.C.

1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Date: November 21, 1983

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250 OLA

) 50-251 OLA (Turkey Point Nuclear )

Generating Units 3 and 4) )

NOTICE OF APPEARANCE OF COUNSEL Notice is hereby given that Steven P. Frantz enters an appearance as counsel for Florida Power & Light Company in the above captioned proceeding.

Name: Steven P. Frantz Address: Lowenstein, Newman, Reis & Axelrad, P.C.

1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Telephone: (202) 862-8400 Admissions: District of Columbia Court of Appeals Name of Party: Florida Power & Light Company Post Office Box 14000 Juno Beach, FL 33408 4 #5^

" Steven P. Frantz D' Lowenstein, Newman, Reis & Axelrad, P.C.

1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Date: November 21, 1983

I UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION l BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250 OLA

) 50-251 OLA (Turkey Point Nuclear )

Generating Units 3 and 4) )

NOTICE OF APPEARANCE OF COUNSEL Notice is hereby given that Harold F. Reis enters an appearance as counsel for Florida Power & Light Company in the above captioned proceeding.

Name: Harold F. Reis Address: Lowenstein, Newman, Reis & Axelrad, P.C.

1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Telephone: (202) 862-8400 Admissions: District of Columbia Court of Appeals Name of Party: Florida Power & Light Company Post Office Box 14000 Juno Beach, FL 33408

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Hatold F. Reis Lowenstein, Newman, Reis & Axelrad, P.C.

1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Date: November 21, 1983

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENING BOARD In the Matter of )

)

FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250 OLA

) 50-251 OLA (Turkey Point Nuclear )

Generating Units 3 and 4) )

CERTIFICATE OF SERVICE I hereby certify that copies of

1) Licensee's Answer to Request for a Hearing and Petition for Leave to Intervene

2) Notice of Appearance of Counsel (Harold F. Reis)

3) Notice of Appearance of Counsel (Michael A. Bauser)

4) Notice of Appearance of Counsel (Steven P. Frantz) in the above captioned proceeding were served on the following by deposit in the United States mail, first class, properly stamped and addressed, on the date shown below.

Dr. Robert M. Lazo, Chairman Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Emmeth A. Luebke Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Richard F. Cole Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D.C. 20555

I I

l Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of Secretary U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Chief, Docketing and Service Section (Original plus two copies)

Mitzi A. Young Office of Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Norman A. Coll Steel, Hector & Davis Southeast Bank N.V.

Suite 1400 100 S. Biscayne Boulevard Miami, FL 33131 Martin H. Hodder 1131 N.E. 86th Street Miami, FL 33138 Dated this 21 day of November 1983 Mrchael'A. Bauser Lowenstein, Newman, Reis & Axelrad l P.C.

1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 l

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