ML20086N460

Licensees Response to Ohio Citizens for Responsible Energy, Inc & SL Hiatt Amended Petition for Leave to Intervene.* Determines That Intervenor Failed to Demonstrate Interest in Proceeding.W/Certificate of Svc & Svc List

ML20086N460
Person / Time
Site:	Perry
Issue date:	12/17/1991
From:	Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#491-12436 91-650-13-OLA-3, OLA-3, NUDOCS 9112230011
Download: ML20086N460 (11)

Text

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DOCKf1ED USNDP December if,1991

'91 TC 19 A11 :06 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,g Before 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. 91-650-17 OLA-3 Unit No. 1) )

)

LICENSEES' RESPONSE TO OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC. AND SUSAN L. HIATT AMENDED PETITION FOR LEAVE TO INTERVENE On November 22, 1991, Ohio Citizens for Responsible Energy, Inc. and Susan L. Hiatt (collectively "OCRE") filed an Amended Petition For Leave to Intervene in this proceeding. As suggested by the Licensing Board's October 28, 1991 Order, the Amended Petition addressed the arguments put forward by the NRC Staff and Licensees on OCRE's standing, as well as three Court of Appeals decisions cited in the Order. OCRE did not otherwise amend its initial Petition. As authorized by the October 28 Order, Licens-ees hereby respond to OCRE's Amended Petition.

Licensees' response to OCRE's initial Petition set forth why OCRE had not met either the " injury-in-fact" or the " zone of interests" tests required to establish standing. Licensees dis-cussed the standing principles and case law which demonstrated that OCRE's procedural " injury" (moving the reactor vessel 9112230011 911217 , $()

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material surveillance program withdrawal schedule from Technical Specifications to the Updated Safety Analysis Report) did not meet the requirements that the " injury-in-fact" be distinct, pal-pable, real and immediate. Licensees also showed that OCRE's complaint did not fall within the zone of interests -- i.e.,

radiological health aii vsafety -- protected by the Atomic Energy Act.

OCRE's Amended Petition addresses the case law relied upon by Licensees and the NRC Staff, as well as the three judicial decisions identifiad in the October 28 Order. Licensees respect-fully submit that OCRE's analysis is vide of the mark.

OCRE first mentions Warth v. Seldin, 422 U.S. 490 (1975),

arguing that injury-in-fact can be created by the invasion of legal rights created by statute. Amended Petition at 2. Ini-tially, it must be recognized that Congress may not_ expand by statute the standing limitat' ions imposed on it by Article III of

-the Constitution. Gladstone, Realtors v, Vjllace of Bellwood, 441 U.S. 91, 100 (1979); Conservation Law Foundation of New England, Inc. v. Reilly, F.2d ,

1991 WL-245016, *3 (1st

• Cir. 1991). OCRE never points to a statutory provision which the.

NRC is__ invading in this proceeding. There is certainly no compa-rable statutory right in this case to the Civil Rights Act of 1968 involved in Warth. (It is noteworthy that the Supreme Court found that the petitioners in Warth did not show injury based on

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violation of a statutory right). As Licensees have pointed out in their response to OCRE's initial petition, the Atomic Energy Act "does not-confer the automatic right to intervention upon everyone." BPI v. Atomic Energy Commission, 502 F.2d 424, 428 (D.C. Cir. 1974). The Act only requires that persons "whose interest may be affected by the proceeding" be granted a hearing.

Section 189.a(1), 42 U.S.C. 2239(a)(1). The Commission is enti-tied to define the interest required, see DPI supra, which it has done by' adopting _the judicial concepts of standing. And, if OCRE is suggesting that the statutory injury in this case is the assumed-denial of a heating on some future, as-yet-unknown change to the reactor vessel material surveillance program withdrawal schedule, this speculative injury is not the kind of direct, non-remote, demonstrable and particularized injury required to meet Article III requirements. See Warth, 422 U.S. at 507-8.

' E next quarrels with Licensees'~ reliance on Dellums v.

EF ,3 F.2d 968 (3.C. Cir. 1988), stating that "none of the p . loners in that case could establish any specific injury be :ause 'the only injury alleged is videly-held, non-quantifi-able, and of a politi-allar ideological nature," Dellums, 863 F.2d at 972." Amended Petition at 2. CCRE's quotation from Dellums, however, does not describe the holding in that case.

Rather, it was-the Dellums Court's summary of the Supreme Court's-holding'in U.S. v. Richardson, 418 U.S. 166 (1974).

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Notwithstanding OCRE's attempt to factually distinguish

-Dellums, there can be no doubt that the Dellums-decision (and the Supreme: Court cases on which it relies) stands for.the general proposition'that standing requires a "' distinct and palpable harm' that will satisfy the injury-in-fact requirement." 863 F.23 at 972. OCRE has provided no support for its position that

'a purely procedural " injury," devoid of any substantive impact, satisfies this-Constitutional requirement. Failure of an agency to follow procedures is not in itself enough to constitute injury-in-fact; there must be some additional injury that satis-fies the requirements of the standing doctrine. Dimond v. Dis; trict of Columbia, 792 F.2d 179, 191 (D.C. Cir. 1986). OCRE's position erroneously focuses on the issue it wishes to litigate, instead of the traditional focus on the plaintiff. F_last v.

Cohen, 392 U.S. 89, 99 (1968); Conservation Law Foundatio3, suora

-at *S. OCRE has-failed to estarlish that it "has sustained or is

'immediately in danger of sustaining some direct injury" which is "rea11and immediate" and not " conjectural" or "hypothetica'l."

Los Anceles v..Lyons, 461 U.S. 95, 101-2 (1983).

'Nor has CCRE-adequately responded to the infirmities in-its

ompliance with the " zone of interests" test. OCRE's answer te the weaknesses identified is to quote from the D.C. Circuit's 1984 UCS decision that " Congress vested in the public as well as-the NRC Staff, a role in assuring safe operation of nuclear power plants." Union of Concerned Scientists v. NRC, 735 F.2d 1437,

0 1447 (D.C.-Cir. 1984). Putting aside the issue of whether the 1984 UCS decision remains good law,1# OCRE's intervention peti-tion does not deal t:th the " safe operation" of nuclear power plants. By conceding that the license amendment at issue in this proceeding "vas a purely administrative matter that involves no

-significant hazards consideration," Petition at 5, OCRE has taken this proceeding outside the scope of the Atomic Energy Act's zone of interest.

OCRE's discussion of the cases suggested by the October 28 Order is similarly flawed. Iike OCRE in this proceeding, Capital Legal Foundation (" Capital") sought to raise a purely legal chal-lenge to action taken by the a government entity. Capital Legal Foundation v.-Commodity Credit Corporation, 711 F.2d 253 LD.C.

Cir. 1983). Capital argued that Commodity credit Corporation .

("CCC") had violated its regulations in the way that it dealt with certain U.S. creditors of Poland, Capital argued that it was injured because CCC's actions jeopardized Capital's task of informing the public of the economic impact of proposed regula-

. tory changes and deprived it'of the opportunity to have its com-ments considered before CCC reached its final decision. 711 F.2d

~ ,

1/ In granting rehearing in Nuclear Information Resources Ser-vice v. NRC, 928 F.2d 465 (D.C. Cir. 1991), the D.C. Circuit ordered the parties to address several questions, including "Whether it is necessary or appropriate to re-examine our pre-Chevron holding in Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984)."

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at 253.-- Capital conceded that it has suffered no injury from the j underlying substantive action by CCC. Id.

.1' OCRE's position la this proceeding is directly an:.iogous.

By conceding that;the. proposed license amendment involves no sig-nificant hazards consideration, OCRE (like Capital) acknowledges that it suffers no injury from the substantive action proposed by the Staff (moving' reactor vessel material surveillance program withdrawal schedule from the Technical Specifications to the Updated. Safety Analysis' Report). Rather, its claimed injury is that at'sume future. time, the withdrawal schedule formerly a part of Technical Specifications is changed, it will be denied a hear-ing that-it otherwise could have requested. This procedural claim, akin to. Capital's right to comment on the CCC's decision, is the same-kind of procedural right that is decoupled from any injury in fact arising from a substantive action by the agency.

OCRE's attempt to distinguis'a Capital Legal Foundation does not' succeed.

OCRE claims that the-current-case is based upon the-

-hearing rights " uniquely established" by the Atomic Energy Act, while Capi .41 Lecal-Foundation involves rights " conferred upon everyone" by the Administrative Procedures Act, Amended Petition at 7.- Standing in-NRC proceedings is based on judicial concepts, see Metropolitan Ediron Comoany (Three Mile Island Nuclear Sta-tion, Unit 1), CLI-88-2, 21.NRC 282, 316-(1985). Judicial con-cepts of standing begin with the constitutional dimension of

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" case or controversy" within the meaning of Article !!!. EpIlh

v. SelAin, 422 U.S. at 500. Therefore, OCRE's distinction between Atomic Energy Act proceedings and Administrative Proce-dure Act rights is, for the present purposes, of no significance.

In any event, NRC proceedings are governed by the Administrative Procedure Act, just as are those of the CCC. Section 181 of the Atomic Energy Act, 42 U.S.C. 2231.

E The D.C. Cirtait's suraequent decision in Wilderness socit;y u

v1._Gil3 s , 824 F.2d 4, ly (D.C. Cir. 1987) adopts the logic of Capital Legal Foundation.

Since plaintiffs lack standing to challenge

, (the agency's) substantive actions, they indeed lack standing to challenge procedural defects in the process that produced those

_ actions OCRE 'rprets this case as one involving " standing conferred by the AP4 lone." Amended Petition at 8. The Court, however, made very clear the Constitutional dimensions of .he standing doc-trine. 824 F.2d at 11. Thus, even if there were a distinction hg between APA and Atomic Energy Act standing (which we believe there is not), the Constitutional limitations on standing removes OCRE's 2.; tempted distinction.

The third case cited in the October 28 Order, Telecommunica-tions Research and Action Center v. FCC, 917 F.2d 585 (D.C. Cir.

1990), involves a factually different pattern (a petitioner l ___-_ _ _.

i challenging the agency's rationale in reaching a result, but not challengireg the renuit). However, the fundamental principle underlying the Court's decision is substantially similar to the current case. OCRE, like the petitioner in Igleconaunications Research, had an interest in the Commission's legal reasoning and the potential precedential effect. See Amended Petition at 8.

And, despite OCRE's denial, OCRE's interest is "decoupled" from -

any injury in fact caused by the substance of the NRC's proposed

-action. By ?.onceding that the proposed license amendment is a purely administrative change involving no significant hazards considerations, OCRE acknowledges that the substance of NRC's proposed action involves no injury-in-fact.

One other recent case is worth noting with respect to OCRE's attempt to establish its standing. In Foundation on Economig Trends v. Lyng, 943 F.2d 79 (D.C. Cir. 1991), the D.C. Circuit ruled that standing could not be based upon " informational injury," which the Court defined as the lack of information resul+1ng from.the failure of an agency to carry out its National Environmental Policy Act responsibilities. This " informational injury" was not sufficient to constitute " injury-in-fact." The

. Court considered this type of injury similar to the " mere inter-est in a problem," which the Supreme Court in Sierra Club v.

Morton, 405 U.S. 727 (1972) held inadequate to confer standing.

" Informational injury" was also rejected as an injury because it "undif f erentiated and connon to all members of the public." 943

.g.

F.2d at 85. OCRE's claimed injury suffers from these same defi-ciencies. OCRE's comp 1 dint that it might wish to request a hear-ing at some future time if the withdrawal schedule were changed, is no more than an " interest in a problem." OCRE vants to par-ticipate at an undetermined future time with respect to an unde-fined future action. This vague and unspecified injury could apply equally to all members of the public. Thus, OCRE's "proce-dural injury" is akin to the Foundation's " informational injury."

Neither meets the Constitutional 1y-based standing requirements applied by NRC.

OCRE argues that it has "a clear substantive right to a hearing on operating license amendments in the statutory charter of tne NRC: the Atomic Energy Act, and the regulations promul-gated thereunder." Amended Petition at 7. OCRE continues to sweep aside the judicial concepts of standing as applied by NRC.

In the context of this proceeding, OCRE has failed to meet its burden to demonstrate its interest.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037 Ja C ./ Silber'g( } ]A Counsel for The Cleveland Electric Illuminating Company, et al.

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a I A nl:(0 Deceb$f17, 1991 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ora gt ; g g 4, Befort_the Atomic Safety ansi Licens_in dIhIu';' "V"'I In the Matter of )

)

THE CLEVELAND ELECTRIC )

ILLUMINATING COMPANY, et al. ) Docket No. 50-440-OLA-3

)

(Perry Nuclear Pnver Plant, ) ASLBP No. 91-650-13-OLA-3 Unit No. 1) )

)

CERTIFICATE OF SERV!CE 1 hereby certify that copies of the foregoing Licensees' Response to Ohio Citizens for Responsible Energy, Inc. and Susan L. Hiatt Amended Petition for Leave to Intervene were mailed, postage prepaid, this 17th day of December 1991 to those listed on the attached Service List, m / _

J ~[.Silberg j/

Counsel for The Cleveland Electric Illuminating Company, et al.

) b C

December 17, 1991 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety _and Licensinq_ 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) ) f

) l SERV!CE LIST Docketing and Service Branch Dr. Charles N. Kelber 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 Colleen P. Woodhead, Esq.

Office of the General Counsel Ms. Susan Hiatt U.S. Nuclear Regulatory- 8275 Munson Road commission Mentor, Ohio 44C60 Washington, D.C. 20555 Office of Commission Appellate Thomas S. Moore, Esq. Adjudication Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Panel Washington, D.C. 20555 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 ca40cc. 91

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