ML20083B584
| ML20083B584 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 09/06/1991 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#391-12186 2.206, 91-650-13-OLA-3, ALAB-328, ALAB-342, CLI-88-02, CLI-88-2, LBP-76-12, LBP-90-15, LBP-90-25, OLA-3, NUDOCS 9109250128 | |
| Download: ML20083B584 (14) | |
Text
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UNITED STATES CF AMERICA NUCLEAR REGULATORY COMMISSION Sefore the Atomic Safety and Licensing Board In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
ILLUMINATING COMPANY, et al.
)
Docket No. 50-440-OLA-3
)
(Perry Nuclear Power Plant,
)
ASLBP No. 91-650-13-OLA-3 Unit No. 1)
)
)
LICENSEES' ANSWER TO OHIO C!TIZENS FOR RESPONSIBLE ENERGY, INC. AND SUSAN L.
HIATT PETITION FOR LEAVE TO !NTERVENE AND RECUEST FOR HEARING On March 15, 1991, The Clevelard Electric Illuminating Com-pany, on behalf of itself, Duquesne Light Company, Ohio Edison Company, Pennsylvania Power Company, and The Toledo Edison C:m-pany (collectively " Licensees") filed with the Nuclear Regulatory Commission ("NRC") a supplement to a previously proposed amend-ment to the Technical Specifications for the Perry Nuclear Power Plant, Unit No. 1 ("PNPP").
The supplement proposed to modify the PNPP Technical Specifications by removing the reactor vessel material surveillance program withdrawal schedule from the Tech-nical Specifications and relocating the schedule to the Perry Updated Safety Analysis Report (USAR).
The NRC published in the Federal Register on July 24, 1991, a notice that it was consider-ing the issuance of the requested amendment, its proposed deter-mination that the amendment involved no sigtificar.t hazards i
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considerations, and a notice of opportunity to request a hearing.
56-Fed. Reg. 33951 (1991).
On Aum(st 23, 1991, Ohio Citizens for Responsible Energy, Inc. and Susan L. Hiatt (collectively "OCRE") filed with NRC a petition for leave.to intervene and request for hearing.
OCRE's filing stated that it wished to raise a single' issue of law with respect to the proposed Technical Specification amendment and
' agreed with Licensees and the NRC Staff that "the proposed amend-ment-is a purely administrative matter which involves no signifi-cant hazards consideration."
Petition at 5.
The NRC's notice of opportunity for hearing invited "any person whose_ interest may be affected-by this proceeding" to file a petition for leave to intervene.
56 Fed. Reg. 33951._ That petition "shall set forth with particularity the interest of the l petit'ioner'in the proceeding."
id.
Licensees respectfully sub-mit_that OCRE has not shown the requisite interest in this proceeding.
The proceeding in which OCRE seeks to participate concerns an administrative change to the PNPP Technical Specifications.
As CCRE acknowledges, the modification "is purely an administra-tive matter-which involves no significant hazards consideration."
Petition at 5.
The proposed: change to which OCRE object.s would not alter any of-the information in the reactor vessel material surveillance program withdrawal schedule.
The result would
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i if therefore be to delete that-schedule from Technical Specifica-tions,anc place that same information in another reference.
The controls on changes to the schedule imposed by S II.B.3 of Appen-dix H to 10 C.F.R.
Part 50 would not be affected by the proposed change.
This modification-has no safety significance, as acknowl-edged by OCRE (n referring to the change as purely administra-tive.
Because of this fact, OCRE has not shown -- and cannot show - -that it meets the NRC's requirements with respect to its
-showing of interest.
-NRC applies judicial conce ts of standing in determining
-whether a' petitioner-has made_the requisite showing of interest i
required'by Section 189.a of the Atomic Energy Act and 10 C.F.R.
$ 2.714.1 Metropolitan Edison Company (Three Mile Island Nuclear Station,' Unit 1)', CLI-88-2, 21'NRC 262, 316 (1985).
These-judi-cial'standar'ds require that the-challenged action could cause (1)-
P injury-in-fact" to the potential intervenor, and (2) that such injury is arguably-within_the zone of interests protected by the
' Atomic / Energy Act and the National-Environmental Policy Act.1/
L See Warth v.
Seldin, 422 U.S.
490 (1975) and Sierra Club v.
1 Morton,-405 U.S. 727 (1972).
OCRE has not met _either of-these-l Erequirements, l
1/
'Because_the proposed Technical Specification change does not involve environmental issues, standing under the National L
Environmental Policy Act is not involved.
L L t
s OCRE.has.not shown any " injury-in-fact" with respect to this proceeding.
OCRE states that the petitioners have a definite interest in the preservation of their lives, their physical health, their livelihood, the value of their property, a safe and healthy natural environment, and the.
cultural, historical, and economic resources of Northeast Ohio.
Petition at 4.
Licensees do not dispute this claim.
- However, the subject matter of this proceeding -- the movement of the reactor vessel material surveillance program withdrawal schedule from Technical Specifications to the USAR -- in no way affects these' interests.
There must be a connection between the threat-ened injury and the particular proceeding in which a petitioner wishes to intervene Allied-General Nuclear _ Services, (Barnwell Fuel. Receiving and Storage Station), LBP-76-12., 3 NRC 287, aff'd ALAB-328, 3 NRC 420 (1976).
The purely procedural issue which is the subject of the proposed amendment is wholly unrelated to those interests, i.e.,
there is no nexus.
Nor could the relief l
presumably requested-by OCRE -- retaining the withdrawal schedule i
in the Technical Specifications --' prevent the injury to those interests.
As the-Supreme Court has held, there must be "a sub-stantial-likelihood that relief requested will prevent or redress'the claimed injury."
Duke Power Company v.
Carolina Environmental Study Group, 436 U.S.
59, 80 (1978).
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OCRE also asserts that petitioners have "an interest in pre-serving'their legal right to meaningful participation in matters affecting the operation-of" PNPP.
Petition at 4.
Licensees believe that this interest in legal rights does not fit the judi-cial requirements that " injury-in-fact" be " distinct and palpa-ble," not " abstract," " conjectural" or " hypothetical."
Warth v.
Seldin, 422 U.S.
at 501; 6J_len v.
Wricht, 468 U.S.
737,' 751
]
i (1983); Los Ance}es v.
Lyons, 461 U.S.
95, 101-102 (1983); c'Shea l
l v,'Littleton, 414'U.S. 488, 494 (1974).
The petitioner "must j
allege-specific,. concrete facts demonstrating that the challenged i
practices. harm him."
Warth v.
Seldin, 422 U.S.
at 507 OCRE has alleged " injury-in-tav," and not " injury-in-fact."
Since OCRE has acknowledged that it-does not have any substantive q
problems with the information being moved from Technical Specifi-cations to the USAR, and-does not ask for a hearing on any sub-stantive safety issue, OCRE's concern must be with the possibil-1 ity that it might, at some future time, want to challenge sub-stantive modifications to the= withdrawal schedule.- OCRE's only claim to " injury-in-fact" is that.at some future time, Licensees i
may seek to_ modify the withdrawal schedule, OCRE will request a hearing, and NRC vill deny that request.
There can be no injury
-if-0CRE is only being denied a "right" that it may not have or i
that it may not in the future seek to exercise.
That kind of' H
concern is clearly conjectural and hypothetical, not real_and
- immediate.
See Los Anceles v.
Lyons, 461 U.S.
at 102-103. l i=
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l-i s
Furthermore, the purely legal interest -- unconnected to any substantive safety issue -- in having a hearing is the type of
" generalized grievance shared by a large number of citizens in a substantially equal measure" which will not support standing, Duke Power Comoany v.
Carolina Environmental Study Group,.i_c],
't is not enough for there to be "a chilling effect ca plaintiff's rights absent a specific present objective injury or spe-cific threat of future injury to plaintiff's -ights,"
Allied-General Nuclear Services, Inc., 3 NRC at 285 n, 11 (citing Laird y&Tatum, 408 U.S.
1 (1972)).
The Supreme Court "has consis~
tently rejected :laims of standing predicated solely on 'the etqht, possessed by every citizen, to require that the Government be administered according to law,'"
Dellums v.
NRC, 863 F,2d 968, 973 (D.C. Cir. 1983), quoting M11ev Forse_ Citizens Colltu v.
Americans United for Seoaration of Church & State, Inc, 454 U.S.
464, 433 (1992).
In addition to OCRE's failure to adequately demonstrate
" injury-in-fact," it has also failed to show that its injury is arguably within the " zone of interests" protected by the Atomic Energy Act, As indicated above, the only injury with a nexus to this proceeding is DCRE's " legal" injury.
That injury does not fall within the " zone of intt.re 99" of NRC's substantive stat-utes,. _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ - _ _ - _ _ _ _ _ -
- v The Atomic Energy Act is specifically intended to protect j
l
.the radiological health and safety of the general public, vj;-
gjnia Electric and Power Comoany (North Anna Power Station, Units 1 and 2). ALAS-342, 4 NRC 98, 105 (1976).
OCRE's legal injury does not relate to nuclear safety issues.
Standing based on the Act must be related to matters of-health and safety.
OCRE's
' detriment,.if any, is unrelated to the interest of health and j
safety with which Congress was concerned in the atomic energy i
area."- Drake v.
Detroit Edison Co.,
453 F.Supp. 1123, 1130 (W D.
j Mich, 1978).
As pointed out in another District Court case, i
To determine what "zcae of interests" are-involved-in the Atomic Energy Act, this Court must look to the policy. set-forth in that statute.
That policy, stripped of its ver-biage, is simply to make sure that tais coun-try would continue to lead all other coun-tries in-the research, development and appli-cation of atomic energy.
Nuclear Data,- Ing,
- v. Atgmjc Enercy, Commission, 344' F. Supp. 719, 725 (N.D. Ill. "972).
Because the hearing being requested in this case relates solely to the right of OCRE to participate in futureihearings and does not. relate to any carrent. health or
-safety matters, OCRE's alleged. injury does not fall ~within the L
zone of interests protected.by the'Act.
l; Licensees-recognize that an atomic-safety and licensing boardLin an: earlier unrelated proceeding. initiated-by OCRE con-cluded that'"a purely legal injury-will support standing."
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4 Cleveland Electric I11un;1,1 tin d. (Perry Nuclear Power Plant, a
Unit 1).-LBP-90-15,-31 NRC 501, 506 (1990); Clevel'and Electric E
111uminatino Co. (Perry Nuclear Power-Plant,- Unit 1), LBP-90-25, 32 NRC 21, 24 (1990).
Licensees respectfully disagree.S#
The prior board appears to have found that 0C.sE had standing
[
_-based upon_the following reasoning:
a.
NRC regulations permit contentions raising purely
. legal issues;
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(
b.
OCRE:had raised a purely legal-_ issue; c.
Therefore, OCRE had standing,
-LBP-90-15,-31 NRC at 506.
The prior board provided no other l
Licensees respectfully i
Jexplanation nor_. citation to case law.
submit that the recognition by the NRC that purely legal conten-tions.may under certain conditions be admissible, cannot be read-L to. wipe.out"the wholly separate: obligation by a person reque :ing i:
_a hearing _to demonstrate his or her standing.
The prior board's analysis-_ inappropriately intermingled-the separate requirements
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of 10 C.F.R.
5 2.714 to demonstrate. interest and to submit-at
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R 2h Decisions of licensing boards are not " precedent" to subse-quent licensing boards, although they can, of course, be
-considered.in order to achieve uniformity and predictabil-ity.: -Florida Power and Licht Co. (Turkey Point Nuclear _ Gen-erating Plant, Units 3 and 4), LBP-90-32_, 32 NRC 181, 184 n.3-(1990).-
least one admissible contention.3
Although the prior board con-cluded that "CCRE has standing to request a hearing based on ts alleged legal injury,"
LBP-90-15, 31 NRC at 506, the prior board did not establish tnat CCRE had met either prong of the stand:ng test.
Although CCRE lacks standing in this proceeding, it is net without legal remedies in the event that at some future time :t should have a substantive concern with changes to the withdrawal schedule.
These changes must be provided to NRC and must be approved prior to implementation.
10 C.F.R.
Part 50, App. H S 11.B.3.
At that time, OCRE could seek to institute a proceed-ing under 10 C.F.R.
5 2.206, including a request for a hearing.
The NRC would be obligated to either institute the requested pro-ceeding, or advise OCRE of the reasons why no proceeding would be instituted.
While OCRE may argue that the 10 C F.R. 5 2. 2 N
.nechanism does not guarantee it a right to an adjud. 3 tory hear-ing, the short answer to OCRE's argument is that the Atomic Energy Act "does not confer the automatic right to intervention upon everyone."
BPI v.
Atomic Enerav Commission, 502 F.2d 424, 428 (D.C. Cir. 1974).
l/
It should be noted that 10 C.F.R.
5 2.714(e), which provides the procedure for dealing with " pure issues of law," only comes into play after there is an " admitted conter.tlan."
The contention cannot therefore become the bootstrap for standing.
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k t'or all these reasons, Licensees respectfully submit that CCRE has not shown that it has the requisite interest in this license amendment proceeding.
l Although OCRE was not obligated to set forth a contention until 15 days prior to the first scheduled prehearing gonference, 56 Fed. Reg. 33951, OCRE has done so in its Petition (at 5).
Licensees do-not object to CCRE's formulation of its " pure issue of law."
However, no contention can be admitted unler.s OCRE has established that it has the requisite standing.
Licensees submit j
that CCRE has not made this showing.
i' Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE i'
2300 N Street, N.W.
washington, D.C.
20037 i
/
{ilberg Ja-Counsel for The Cleve~and Electric Illuminating Company, et al.
T.14 : 2 2 6 4
- s. 91 I
i
vi :i b Septembemt6, 1991 UNITED STATES OF AMERICA
'91 SU) -> P 3.30 i
NUCLEAR REGULATORY COMMISSICN Before the Atomic Safety and Licensina Boardc l
In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
ILLUMINATING COMPANY, et al.
)
Docket No. 50-440-OLA-3'
)
(Perry Nuclear Power Plant,
)
ASLBP No. 91-650-13-OLA-3 Unit No. 1)
)
4 I
l, i
NOTICE OF APPEARANCE r
The undersigned, being an-attorney in good standing admitted to. practice before the courts set forth below, hereby enters.his appearance as attorney-at-law on-behalf of-The Cleveland Eltetric' Illuminating Company, Duquesne Light Company, Ohio Edison Com-pany, Pennsylvania Power Company, and The Toledo Edison Company, y
and sets forth the following_information required by 10 C.F.R.
S 2.713(b):-
Name:
Jay E. Silberg 4
Address:
Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W.
Washington, D.C.-
20037
_Telephbne:
(202) 663'-8063 L
Name and Address-of f
-PartyLRepresented:
_The ClevelandfElectric U
Illuminating Company j
55 Public Square l
Cleveland,-Ohio 44101 I
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Duquesne. Light 1 Company L
One Oxford Centre p
301 Grant Street l-Pittsburgh, Pennsylvania 15279 L
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Chlo Edison Company 76 South Main Street Akron, Ohio 4430B Pennsylvania Power Cc.mpany 1 East Washington Street New Castle, Pennsylvania 16133 The Toledo Edison Company 300 Madison Avenue,
Toledo, Ohio 43652 Admissionst District of Columbia, New Jersey U.S.
Courts of Appeals for the District of Columbia, Sixth, Seventh, and Ninth Circuits U.S.
Supreme Court Respectfully subm'tted,
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Silberg s
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b Ft$t September 6~,'1991 A E ~9 UNITED STATES CF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensinq Board 4 '
In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
ILLUMINATING COMPANY, et al.
)
Docket No. 50-440-CLA-3
)
(Perry Nuclear Power Plant,
)
ASLBP No. 91-650-13-OLA-3 Unit No. 1)
)
)
CERTIF!CATE OF SERVICE I hereby certify that copies of the foregoing Licensees' Answer to Ohio Citizens for Responsible Energy, Inc. and Susan L.
Hiatt Petition for Leave to Intervene and Request for Hearing, and Notice of Appearance were mailed, postage prepaid, this 6th day of September 1991 to those listed on the attached Service List.
9)A
_t Jay
- llberg
[
Counsel for The Cleveland Electric illuminating Company, et al.
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1 1
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1 September 6, 1991 h
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the_, Atomic Safety _and Licensino Board In the Matter of
)
)
THE CLEVELAND ELECTRIC
)
ILLUMINATING COMPANY, et al.
)
Docket No. 50-440-OLA-3
)
(Perry Nuclear Power Plant,
)
ASLBP No. 91-650-13-OLA-3 Unit No, 1)
)
)
S_EPJICE LIST t
i
+
i Docketing and Service. Branch Mr. Richard F. Cole.
Office.of the Secretary Atomic Safety and Licensing
~
U.S.. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington,-D.C.
20555 Commission Washington, D.C.
20555 Richard G.
Bachmann, Esq.
- Office of'the General--Counsel Dr. Charles N. KeIber-U.S.-Nuclear-Regulatory Atomic Safety and Licensing Commission Board Panel Washington, D.C.
20555 U.S. Nuclear Regulatory-Commission Thomas S. Moore, Esq.
Washington, D.C.
20555 Chairman Atomic Safety and Licensing Ms. Susan Hiatt Board Panel 8275 Munson-Road-6 O.S. Nuclear Regulatory
. Mentor, Ohio 44060 Commission Washington, D,C.
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