ML20083D997
| ML20083D997 | |
| Person / Time | |
|---|---|
| Site: | Grand Gulf, 05000406 |
| Issue date: | 12/22/1983 |
| From: | Conner T, Rader R CONNER & WETTERHAHN, MISSISSIPPI POWER & LIGHT CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| 84-497-04-LA, 84-497-4-LA, NUDOCS 8312280391 | |
| Download: ML20083D997 (14) | |
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k 00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION fy,=fj[,q, n :t * ,
Before the Atomic Safety and Licensing Board!",QS In the Matter of )
)
MISSISSIPPI POWER & LIGHT ) Docket No. 50-416 COMPANY, et al. ) ASLBP No. 84-497-04 LA
) l (Grand Gulf Nuclear Station, ) l Unit 1) )
LICENSEE'S ANSWER TO AMENDED PETITION TO INTERVENE AND REQUEST FOR HEARING BY JACKSONIANS UNITED FOR LIVABLE ENERGY POLICIES l PreliMnary statement ,
l Petitioner Jacksonians United for Livable Energy Policies (" JULEP") filed a petition to intervene and request
, for a hearing on November 17, 1983. On December 7, 1983, i
the Staff of the Nuclear Regulatory Commission ("NRC" or
" Commission") filed a response opposing the petition. On December 14, 1983, Mississippi Power & Light Company, et al.
(" Licensee") similarly filed an answer requesting that the petition be denied. ! Both the NRC Staff and Licensee opposed the JULEP petition on the grounds that it did not meet the Commission's requirements for standing and had not identified litigable " aspects" JULEP wished to pursue.
~1/ As noted in Licensee's brief, Licensee's Washington, D.C. counsel was not initially served with the petition and did not learn of its existence until December 9, (Footnote Continued) h O p a -yao3
0 On December 11, 1983, JULEP filed an amended peti-tion.S! Essentially, the Amended Petition attempts to cure the deficiencies noted by the Staff and Licensee in their answers. The Amended Petition nonetheless fails to satisfy the Commission's requirements for intervention in a licens-ing proceeding and should therefore be denied for the
, reasons discussed more fully below.
f Argument I. JULEP Has Failed to Demonstrate Derivative Standing Based Upon its Three Designated Members.
The background regarding the NRC's issuance of Amend-ment No. 10 for the Grand Gulf Nuclear Station (" Grand Gulf"), Unit 1, has been duly set forth in Licensee's answer to the initial petition and need not be restated.
The Amended Petition seeks to establish standing on behalf of JULEP based upon allegations of three members' residence and affidavits authorizing JULEP to represent them. The Amended Petition alleges that two members, Cynthia Ann Stewart and Jan Hillegas, are residents of Jackson, Mississippi. Neither member claims to live within 50 miles of the Grand Gulf facility and Licensee's (Footnote Continued) 1983. See Licensee's Answer to " Petition to Intervene and Request for Hearing" at 3 n.7 (December 14, 1983).
-2/ See Amendment to Request by Jacksonians United for Livable Energy Policies on Behalf of its Members for Adjudicatory Hearing on Amendment No. 10 (December 11, 1983) (" Amended Petition").
examination of the 50-mile Emergency Planning Zone overlay map for Grand Gulf indicates that each of those residences lies beyond the 50-mile radius of the plant. Accordingly, even under the most liberal construction of the NRC's decisions on intervention, those individuals lack standing to intervene and seek a hearing on the issuance of Amendment No. 10.3_/ Accordingly, the allegations regarding JULEP members Stewart and Hillegas do not provide a basis for JULEP's standing.
The petition also alleges that a third member, Dale Wallace, resides about 15 miles northeast of the Grand Gulf facility. Nothing beyond the mere fact of this member's residence, however, is alleged in support of JULEP's stand-ing. The Amended Petition does not state "with particularity the interest of [Mr. Wallace] in the proceed-ing," as required by 10 C.F.R. S2.714 (a) (2) , or discuss the
" nature of [Mr. Wallace's] right under the Act" to be a party, the " nature and extent of [Mr. Wallace's] property, financial, or other interest," and "the possible effect of any order" on Mr. Wallace's interest, as required by 10 C.F.R. 52.714 (d) (1)-(3) . In short, there is no allegation 3/ See, e.g., Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 n.4 (1977); Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 & 2),
LBP-81-24, 14 NRC 175, 178-79 (1981).
which the Com-of any particularized " injury-in-fact"
( /
mission's rules and precedents require.4 Notwithstanding the pronouncements by the Commission and its adjudicatory boards requiring specific allegations of " injury in fact" as a prerequisite for standing, other that a lesser statements by the Appeal Board indicate showing may be made for intervention by a person who resides near a nuclear facility. In Virginia Electric and Power Units 1 and 2),
Company (North Anna Nuclear Power Station, ALAB-522, 9 NRC 54, 56 (1979), the Appeal Board stated that always been deemed to be enough, "close proximity has standing alone, to establish the requisite interest."
However, in Houston Lighting and Power Company (Allens Unit 1) , ALAB-535, 9 NRC Creek Nuclear Generating Station, 377 (1979), the Appeal Board stated that valid petitions have " explicitly identified the nature of the invasion of
{ petitioner's] personal interest which might flow from the c/ The Appeal Board clarified proposed licensing action."1 its earlier North Anna decision to mean that " persons who live in close proximity to a reactor site are presumed to in licensing proceedings have a cognizable interest 4/ The basic principles regarding an individual's standing of standing organizational and the derivative in Licensee's Answer to petitioners are discussed for Hearing" at 6-9.
" Petition to Intervene and Eequest 5/ 9 NRC at 393 (emphasis added).
l 1 involving that reactor."6/ In other words, the Appeal Board apparently recognized that some objective demon-stration of " injury-in-fact" must be made to support the presumption. Likewise, in Houston Lighting and Power Company (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644 (1979), the Appeal Board construed North Anna to require allegations of residence proximate to the facility
" coupled with [ petitioner's] expressed concern about injury to his person and property should the plant malfunction
,,7 /
In the Palisades proceeding, the Licensing Board similarly construed these decicienc to mean that "clecc proximity" to the facility merely raises a presumption of standing and that further demonstration of a " cognizable interest personal" to the intervenor is necessary for standing. The Board said:
Conceding that those who live within close proximity to a nuclear facility are presumed to have a cognizable interest, the Staff asserts that it is important to recognize that the "close proximity" test only raises a presump-tion of standing. What is reslly
" presumed" by the "close proximity" test is that the potential litigant will in fact be able to show an injury to an interest protected by the Atomic Energy Act. If he or she cannot, then the presumption fails.
6_/ I d_ . (emphasis added).
7/ 9 NRC at 646 n.8 (emphasis added).
1
D The Staff position ic amply supported by at least two cases [ citing and discussing Houston Lighting and Power Company (Allens Creek Nuclear Generating i Station, Unit 11, ALAB-535, 9 NRC 377, 393 (1979); Dairyland Power Cooperative (Lacrosse Boiling Water ' Reactor),
LBP-80-26, 12 NRC 367, 373 (1980)] . .
Thus, the Union cannot assert stand-ing in this case by virtue of the "close proximity" test unless it can also show that it has an interest protected by the Atomic Energy Act (a " cognizable inter-est") that has been adversely affected i by the Director's order in a way that is environmentally or safety-related.8_/
Most recently, the Licensing Board in Marble Hill i
denied intervention to a petitioner alleging residence .
Within 50 miles of the plant. Discussing Watts Bar, supra, the Board stated that that decision "does not stand for the proposition that residency within 50 miles, simply as a consequence of the residency, is sufficient to establish l standing."U The Board concluded that "we are unable to I 8/ Consumers Power Company (Palisades Nuclear Power i Facility), LBP-81-26, 14 NRC 247, 254-55 (1981)
(emphasis added).
9/ Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), Docket Nos.
50-546 and 50-547, " Memorandum and Order" (September t
14, 1983) (slip op. at 3). The Board also distinguished North Anna, supra, which it construed to
(
l permit intervention based upon the petitioner's i residence in very close proximity to the plant (little more than a stone's throw). -~-Id. It did not discuss the decision in Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Facility), ALAB-682, 16 NRC 150 (1982), which it presumably regarded as (Footnote Continued) l l
e assume that residing a distance of about 50 miles from the plant site automatically exposes [ petitioner] to the unex-plained environmental and health effects."El That Board also reached the same conclusion as to three affiants of another organization who lived about 47 miles from the plant. Here, again, the Board held such allegations to be insufficient, stating: "It tells too little about the potential for injury-in-fact. Residency at that distance, standing alone, is not sufficient to assume such injury." E As tiie Board in Marble Hill emphasized, a preliminary determination on the standing issue requires very car'eful scrutiny to determine compliance with the Commission's requirements. The Board stated:
[T]he question of whether any member of any petitioner organization has standing within the guidelines set out in the NRC decision [s] on the subject should be a matter capable of reliable determina-tion. The Applicant has a right to an unambigu'ous showing- that a petitioner has standing because standing will determine, in part,_ who the parties ,to .
theihearing are and'what issues will be litigated. It might even determine whether any hearing whatever is held, if no' other petitioner qualifies. There-fore the Board will continue to approach (Footnote Continued)
, premised upon residence in very close proximity to the
- s facility, i.e., three miles.
., 10/ Id. at 4.
11/ Id. at 6'.s t
l o
the issue of standing.to intervene . . .
with very careful consideration.M /
The JULEP amended petition is the only petition which has been filed and a hearing on the issuance of Amendment No. 10 would not otherwise be triggered.13/ As the Appeal Board stressed in South Texas, " boards should be cautious about triggering such hearings at the behest of those without a statutory right to intervene." EI It is submitted that a careful scrutiny of the Amended Petition demonstrates no cognizable interest of Mr. Wallace which would support JULEP's standing. In particular, there is no allegation as to how the changes to the Technical .
Specifications for Grand Gulf, Unit 1 would cause any injury-in-fact to Mr. Wallace or adversely affect any interest within the " zone of interests" regulated under the Atomic Energy Act of 1954, as amended, 42 U.S.C. S2011 et seq. As the boards in the cited proceedings have stated, mere residency in proximity to the plant is not enough.
II. JULEP has Failed to Specify any Litigable Aspect of Amendment No. 10.
Even assuming that JULEP has standing, it has neverthe-less failed to identify any litigable aspect of Amendment 12/ Id. at 6-7.
13/ Cf. South Texas, supra, ALAB-549, 9 NRC at 651; Watts Bar, supra, ALAB-413, 5 NRC at 1422.
M/ South Texas, supra, ALAB-549, 9 NRC at 649.
No. 10 it wishes to pursue.15/ For the reasons previously stated, allegations regarding tornado damage, fire damage, security violations and other matters unrelated to the changes in Technical Specifications are coupletely outside the scope of the NRC's notice in the Federal Register offering an opportunity for a hearing with respect to the issuance of Amendment No. 10.16/ The Board lacks jurisdic-tion to explore such issues.17/
Two allegations in the Amended Petition pertain to a one-time exception granted by Amendment No. 10 which sus-pends the provisions of specification 4.0.4 for the purpose of relief valve surveillance testing and Scram Discharge Volume surveillance testing.18/ Because the subject sur-veillances were accomplished in testing completed as of October 12, 1983 and the exceptions have expired, the petition is moot as regards allegations concerning Speci-fication 4.0.4. The Commission has recognized on several 15] The requirement for identifying a litigable aspect has been discussed in Licensee's Answer to " Petition to Intervene and Request for Hearing" at 9-10, 16/ Id. See Amended Petition 110. Similarly, challenges to the NRC Staff's negative "significant hazards consideration" finding raises no litigable issue. See Amended Petition 119 and 11.
17/ Portland General Electric CoIrpany (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979).
1_8f See Amended Petition 117 and 8.
occasions that supervening events will act to moot a request for relief.E Mooted issues may not be litigated.2,0,/
Finally, the Amended Petition refers to changes in the operability range for the High Pressure Core Spray ("HPCS")
system.b However, no litigable aspect has been identified by petitioner. The Amended Petition simply takes issue with a conclusion in the Staff's Safety Evaluation.22/
Conclusion For the reasons discussed more fully above, the Amended Petition fails to establish standing for JULEP under the M/ See Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), Docket Nos.
50-445 and 50-446 " Order" (November 29, 1983) (slip op.
at 2) ; Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), CLI-83-3, 17 NRC 72, 74 (1983); United States Department of Energy (Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412, 419 (1982); Consolidated Edison Company of New York, Inc. (Indian Point, Unit No. 2), CLI-81-7, 13 NRC 448, 449 (1981); Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-8, 11 NRC 433, 435 (1980).
M/ See Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), ALAB-697, 16 NRC 1265, 1273 (1982); Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), ALAB-658, 14 NRC 981, 982 (1981); Portland General Electric Company (Trojan Nuclear Plant) , ALAB-627, 13 NRC 20, 23 (1981); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 NRC 1649, 1659 (1982).
M/ Amended Petition S6.
22/ Moreover, as regards standing, there is no asserted connection between operability range for the HPCS system and any interest asserted by petitioner's members, in particular, Mr. Wallace.
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Commission's requirements for intervention and also fails to identify any aspect petitioner wishes to pursue. According-ly, the Amended Petition should be denied.
Respectfully submitted, CONNER & WETTERHAHN, P.C.
/ \Aft / \
OVI A W) - h Troy . Conner, Jr.
Robert M. Rader Counsel for Licensee December 22, 1983
'M
)
e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
Mississippi Power & Light Company ) Docket No. 50-416
) ASLBP 84-497-04 LA (Grand Gulf Nuclear Station, )
Unit 1) )
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance on behalf of the Licensee in the captioned matter. In accordance with S2.713, 10 C.F.R. Part 2, the following information is provided: ,
Name -
Troy B. Conner, Jr.
Address -
Conner & Wetterhahn, P.C.
1747 Pennsylvania Avenue, N.W.
Suite 1050 Washington, D.C. 20006 Telephone Number -
202/833-3500 Admission -
United States Court of Appeals District of Columbia Circuit Supreme Court of the United States Name of Party -
Mississippi Power & Light Company Notice is further given pursuant to S2.708, 10 C.F.R. Part 2, that service upon the Licensee should be made upon the undersigned.
MY DM. .
'Tro'g B. Conner, Jr.
Dated at Washington, D.C.,
this 22nd day of December, 1983.
I e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) ,
)
MISSISSIPPI POWER & LIGHT ) Docket Nos. 50-416 COMPANY, et al. ) 50-417
)
(Grand Gulf Nuclear Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Answer to Amended Petition to Intervene and Request for Hearing by Jacksonians United for Livable Energy Policies," and " Notice of Appearance of Troy B. Conner, Jr.," dated December 22, _
1983, in the captioned proceeding have been served upon the following by deposit in the United States mail this 22nd day of December, 1983:
Herbert Grossman, Chairman Docketing and Service Atomic Safety and Licensing Branch Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Dr. James H. Carpenter Board Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission
- U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Dr. Peter A. Morris U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Mary E. Wagner, Esq. i Washington, D.C. 20555 Counsel for NRC Staff Office of the Executive Robert B. McGehee, Esq. Legal Director Wise, Carter, Child U.S. Nuclear Regulatory l
& Caraway Commission P. O. Box 651 Washington, D.C. 20555 Jackson, Mississippi 39205
_ - - - - _ - ~ _ . - - - _ - .-
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Ken Lawrence Jacksonians United for Livable Energy Policies P.O. Box 3568 Jackson, MS 39207 Cynthia Ann Stewart Jacksonians United for Livable Energy Policies 950 North Street, Apt. 7 Jackson, MS Robert M. Rader
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