ML20086G640
| ML20086G640 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 11/22/1991 |
| From: | Hiatt S AFFILIATION NOT ASSIGNED, OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#491-12373 OLA-3, NUDOCS 9112050184 | |
| Download: ML20086G640 (10) | |
Text
//318 NOV 2 2 19'J1 UNITED STATI:S Ol' AMERI C A NUCLl;AR kl GULATO!;Y COMMISSION gpjg U.> h k C Delore the Atomic Stifety and Licensing 140 a r d in the Matter of
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- 91 tm 25 P3 S7
)
Till: CLLVI; LAND E Ll'UT R IC ILLUMINATING)
COMPANY, LT AL.
) Docket No. 50-440 OLAJ3
)
(Perry Nuclear Power Plant, Unit 1))
)
1 PETITIONORS' A M E N D I-:D 11:TITION l'Ok LE AVI: TO INTERVilN Purcuant to the Atomic Safety and Licanuing Board'n Order vi October 28, 1991, petitionerc Uhio Citizenu for Rouponsible Energy, Inc. ( "OC kl;" ) and Suuan L.
liiatt hereby amend thejr petition for leave to intetvene to respond to the arguments made by the licencuen and NRC Staff in their anuweru to the intervention petition.
Petitioners alno addreas herein the iederal cases cited by the Board in 1tu Order.
1.
RESPONSU TO CEI AND NRC ST A1T AN SW1.h5 Both the Licensees and the NRC Staff claim that petitioners' intervention petition thould be denied duu to petitioners' purported lack of standing.
Since petitioners' contention raiseu only an incue of law, they accert that no injury-in-fact exists within the zone of interects established by the Atomic Energy Act.
Licencees cite a variety of cases which they believe
)gcd 911n050104 911122 PDR ADOCK 05000440 O
establish that interect in legal rightu doeu not meet judicial utandino requiron, ento, which they claim muut be distinct and palpable, not abstract, conjectural or hypothetical.
Warth v.
Sel'31n, 422 U.S.
490 (1975)
_ Allen v. Wrioht, 400 ".S.
737 (1983); Los Angelea v.
Lyonn, 461 U.D.
95 (1983)r O'Shea v.
- 1. i t t l e t o n, 414 U.S.
480 (1974).
!Jor iu judicial utandina acquired by auserting "the right, poebessed by every citi.en, to require that the Government be adminiutered according to law."
llellumn v. !m C, 863 F.2d 968 (D.C. Cir. 1988).
I! owe ve r, Licenceeu have telectively read thele cases.
Contrary to Licenseen' interpretation, Wu,r t t3 c l e a r l y establishes that "the actual or threatened injury required by Art. 111 may exist nolely by virtue of 'ctatutes creating legal
. rights, the invanion of which createu utanding 422 U.S.
at 600 (citation omitted). " Congress may create a statutory right of entitlement the alleged deprivation of which can confer utanding to oue even where the plaintifi would have suffered no judicially cognizable injury in the absense at statute."
4?2 U.S.
at S14 (citation omitted).
O'Shea likewise ackowledges this principle, 414 U.S.
at 493, n.
2.
Dellums also cannot. oupport Licensee'n claim.
Dellumn concerned alleged violations by the imC of the Comprehensive Anti-Apartheid Act of 1986.
Clearly, none of the petitioners i
in that case could eutablish any specific injury because "the only injury alleged is widely-held, non-quantifiable, and of a political or ideological nature."
Dellums, 863 F.2d at 972.
2
Indeed, in a caue such as Dellumn concerning foreign policy
+
issues, such " injuries" are all that can be claimed, llowever, petitioneru' interest in ihiu proceeding does not concesn political or ideological iuuueu.
Rather, petitionern have met the standard vi Warth in that the amendment sought by Licenuueu would deprive petitioliers 01 a utatutvrily-created right.
An the NRC Staii has cort ectly noted, Dellumn has eutablished that a petitioner laust af firinatively addrenn three factc>ru to show <itanding (1) the petitioner has personally suffered or will suffer a diutinct and palpable harm that constituteu injury-in-factr (2) the irQury can be traced to the s
challenged actions and (3) the injury in likely to he remedied by a favorable deciuiori, nellumu, 863 F.2d at 971.
Staff also notes that the injury muut be within the zorie ot interentu protected by the Atomic Energy Act.
Staff Anuwer at 4.
Petitioneru have met all of these standardu.
Right now, any changes to the PNPP reactor vessel material upucimen withdrawal schedule must be accomplished through a license amendment, with the attendant I,totice and opportunity for hearing.
Petitionern would have the opportunity to intervene in the operating license amendment proceeding, to preuent evidence and crous-ey. amine witnesses, and to file a petition for review of any final order in that proceeding with the Court of Appeals.
If the proposed amendment to remove the reactor vessol material upucimen withdrawal schedule from the Technical 3
l Specificatican is approved, all these rightu, established by Congress in Section 189a of the Atom c 1:nergy Act, will be i
taken away.
This injury la real, distinct, and palpable.
It is not hypothetical, conjectural or abstract.
Moreover, the injury is obviously traceable to the challengud action and can clearly be remedied by a favorable dociolon.
i Purthermore, this iniury is within the zone of intereute established by Congreau in the Atomic Er.ergy Act, e
notwithstanding assertiona of 14RC Stafi and Liconnueu to the contrary.
Meaningful public participation in NHC license amendment proceedinga is one of the goalu of the Act.
Au the D.C. Circuit haa'no forcefully utated, "Congrecs vested in the public, as well as the NHC Staff, a role in assuring uafe operation of nuclear power plantu."
Union of Concerned Scientis*-u v. NRC, 735 P.2d 1437, 1447 (D.C. Cir. 1984).
Au Licensees and the NRC have recognized, a upecific threat of future injury to a petitioner's rightn will confer standing. Licensee's Answer at 6, citing Allied-ceneral Nuclear Services, Inc., 3 NRC at 285 n.-11..
This is precisely the situation in this case, Incredibly, both CEI and the NRC Staff assert that 10 CPR 2.206 providea an adequate mechanism for any challenges to the withdrawal schedule in the future.
As pointed out in the intervention petition, section 2.206 du a woefully inadequate
' mechanism which does.not meet-the requirements of a section
.-189a bearing.
The unavailability of judicial review especially 4-
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renders 2.206 a meanin?'ess option.
For exampaa, if this amendment is granted, petitioners could try to assert that any changes in the withdrawal schedule are de facto amendments and requast a hearing.
However, such a hearing request would be treated as a 2.206 petition by the Commission, even if it were not so labe?ed.
With classification as a 2.206 petition comes the lack ot 1 2dicial review.
Petitioners would never have the opportunity to present this issue before the Court af Appeals.
The Court would nev'er reau the AEA issue becau.se, as a threLhold matter, it would determine that it lacked jurisdiction to review a NRC denial of a 2.206 petition.
Clearly, this is a matter which must %
decided now or not at all.
'f the requested amendment is granted without affording petitioners the opportunity to challenge its legality at thia timn, petitioners will suffer irreparable injury which cannot be redressed by future legal remedies.
This situation meets "the basic requisites of the issuance of equitable relief in these circumstances: the likelihood of substantial ano immediate irreparable injury, and the inadequacy of remedies at law."
O'Shea, 414 U.S.
at 502 'See also Lyons, 461 U.S.
at 103.
II. CASES CITED HY THE BOARD In its Order, the Board directed petitioners to
- e. plain why decisions such ac Capital Legal Foundation v.
Cimmodity 6
l
Credit Corporation, 711 P.2d 253, 259-60 (D.C. Cir. 1903),
Wilderness Society v. Griles, 824 P.?d 4, 19 (D.C. Cir. 1987),
and Telecommunications Research and Action Center v.
PCC, 917 F.2d 585, 588 (D.C. Cir. 1990) are not persuasive in the circumstances of this prcceeding.
Petitioners find that these cases are not persuasive in this context.
In Capital Legal Foundation, the petitioner challenged actions by the Commodity Credit Corporation in consummating agreements with creditors of Poland to assume Polish debts.
This action was taken by the agency in response to the 1981 declaration of martial law in Poland; the assumption of debt "was to be used au an economic lever to further United States foreign policy goals."
711 P.2d at 256.
The Court found the petitioner lacked sta';ing, an unremarkable conclusion, given that " Capital claims no material interest in the Polish debt situation, no substantive rights under the statutory charter or regulations of the CCC, and no injury as a result of the end-product of CCC's action.
Capital concudes it is not governed, adversely affected, or aggrieved by the substance of the agency decision it seeks to reopen."
711 F.2d at 255.
Capital did claim as injury the denial of opportunity to comment on an action it labeled a de facto rulemaking; thus, its rights under the Administrative Procedure Act were violated, and this legal injury created standing. I d_. at 259-60.
The Court disagreed, lj.
Although at first glance this argument appears to bear 6
some resemblance to.that advanced by petitioners in the instant proceeding, the important distinction is that Capital _ claimed-only procedural rights under the APA, and not under the substantive statutes or regulations of the CCC.
" Capital'is a p
t
'ger to'CCC's present regulations in the sense that it is
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nai governed or materially affected by them."
Id. at 259.
" Capital claims no substantive rights under the statutory
. charter er regulations of the CCC Id. at 255.
The Court-found that, lacking _such interest, the APA did not confer
" universal standing" to any person who might wish to participate in agency proceedings.
M. a t 260, in this proceeding, on the other-hand, petitioners have a I
clear subrtantive right to a hearing on operating license amendments in_the. statutory charter of the NRC: the Atomic Energy Act, and the regulations promulgated thereunder.
Petitioners.are not simply' claiming ~ rights conferred upon everyone by the APA. Rather,. petitioners are claiming violation
-of a right uniquely established by the AEA.
Petitioners are not strangers-to the NRC's regulations; they are materially affected by them, not asLa regulated licensee, of-course, but as la cpecial class. of citizens b$ which Congress granted hearing rights..It is beyond dispute that petitioners, by-
= virtue o'f_ residence.in close proximity to the Perry facility,
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-have an interest in the' safe operation of the plant.
As a participant in the operating license proceeding and :ma i
previous amemdment. proceedings for'PNPP-over the last 10 years,
-f 7
petitioners have an clear interest which has obviouuly been recognized by the imC.
Iloweve r, that interest cannot be meaningfully detended if hearing rights are systematically eroded away by the removal of safety-significant material from the operating licenue, such that these factern can be ainu nd ed without triggering the AEA's not'.ce and hearing requirements.
Similarly, in Wilderness Society v.
Grilen, 824 l'.2d 4,
19, the Co_trt found that the plaintiffu, lacking standing to challenge the agency's actions, did not have standing conferred by the APA alone.
"Since plaintiffs lack utanding to challenge BLM's substantive actions, they indeed lack standing to challenge procedural defects in the process that produced those actions."
Id.
As explained above, petitioners herein are not raising a purely APA claim, but rather a claim grounded in the AEA.
In Telecommunications Research and Action Center, the Court held that the petitioner lacked standing becauue it auffored no injury; the petitioner had argued before the agency for the very end result which it then contented on appeal.
917 P.2d at 586.
" TRAC's interest in the Commission's legal reasoning and its potential precedential offeet does not by itself confer standing where, au here, it is ' uncoupled' from any injury in fact caused by the substance of the FCC's 1d. at 588.
While petitioners herein adjudicatory action."
5 do have an interest in the precedential effect of the outcome of this proceeding, that interest, as explained above, is not
. ~
I
' uncoupled from injury in-fact.-to petitioners' statutorily conferred hearing rights unique to the realm of atomic energy regulation.
Petitioners are not raising.some. abstract interest in the NRC's legal' reasoning, but rather are contesting an.
action wl.ich will certainly diminish their legal rights to be i
heard should Licensees choose to revise their-reactor vessel l
material specimen withdrawal schedule in the future, i-Petitioners are seeking declaratory relief in this proceeding, which is the only forum available for the meaningful protection
.of hearing rights with the assurance of judicial review.
r III. COi,CLUS ION Por the foregoing reasons, petitioners have met the standing requirements and should be admitted as a party to this proceeding.
Resp 3ctfully-submitted, p _,[
[
Susan L.
H A L.tt Petitioner Pro Se and OCRE -Representative 8275 Munson Rodd Mentor, OH 44060 (216).255-3158
-DATED:
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UNITED STATEF OF AME):1CA NUCLEAR REGULATORY COMMISSION g j ;g ;.
Before the Atomic Safety and Licensing Boited in the Matter of
)
91 NOV 25 P 3 37 1
Tilt CLCVELAND CLECTRIC ILLUMINATINC)
) Docket No. So-440 iOLA-B Set IAF i
udL 4 ' ' tG *. ' i ' V II I (Perry Nuclear Power Plant, Unit 1))
)
)
C!kTil'ICATE Ol' UlikV ! C1; This in to certify that copieu of the luregoing weru 6erved by deponit. in the U.
Mail, firct c l a t, u, pautage prepuid, thiL ZZwh day of QhQ 1991, to the f ollowuig ;
Of fice of Commission Appellate Administrative Judge Adjudication Thomas M. Moore, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Conmission Washington, DC 20555 Administrative Judge Administrative Judge Richard F. Cole Charles N. Kelber Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washingl.on, DC 20555 Richard G.
Bac!unann, Esq.
Jay E. Silberg, Esq,
~
Office of the General Counsel Shaw, Pittman, Potts & Trowbridge U.S. Nuclear Regulatory Commission 2300 N Street, N.W.
Washington, DC 20555 Washington, DC 20037 Office of tne secretary Docketing and Service U.S.
Nuclear RegulctLory Commission Washington, DC 20555 (P/- K-t-
_ Susan L.
Hiatt
_