ML20127D507
| ML20127D507 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/04/1992 |
| From: | Knotts J PACIFIC GAS & ELECTRIC CO., WINSTON & STRAWN |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#392-13205 OLA-2, NUDOCS 9209150074 | |
| Download: ML20127D507 (28) | |
Text
.,
.~
lh$b)h potshD September 4W1992 UNITED STATES OF AMERICA
'92 SEP -8 E :45 NUCLEAR REGULATORY COMMISSION BEFORE THE ATORIC-SAFETY AND' LICENSING-QO.ABQcy
-r In the Matter of:
)
)
Docket Nos. 50-P.75-OLA ~~
Pacific Gas and Electric Company
)
50-323-OLA
)
(Construction Period
'(Diablo Canyon Power
)
Recapture)
Plant, Units 1 and 2)
)
)
PACIFIC GAS AND ELECTRIC CCF.PANY'S ANSWER TO REQUEST FOR HEARING AND PETITION TO INTERVEM I.-
INTRODUCTION.
In accordance with 10 C.F.R. S 2.714 (c), Pacific Gas and
-Electric Company ("PG&E"), licensee in the above-captioned matter, hereby files its-answer to the request for hearing and petition to intervene filed by the San Luis Obispo Mothers for Peace ("MFPH or
" Petitioner").in' response to a notice of opportunity for Hearing published in the Federal-Register on July 22, 1992 (57 Fed. Reg.
3 2,' 575)- - (" Notice").
The-proposed amendment which is the subject of this proceeding is consistent with the Commission's current-licensing practices and is-identical to more than-50 "CP-recapture"-
amendments which have-been issued by the Commission since 1982, extending. licenses to the full 40-y_ ear-term allowed by the Atomic Energy Act.
These amendments are administrative changes which merely: conform the terms'of the operating licenses to the standard 40-year operating life for which plants like Diablo Canyon were
{}C) f,)e 9209150074 920904 PDR ADOCK 05000275 G
originally analyzed and designed.
As such, these amendments involve no physical change in plant equipment or operating procedures and, introduce no new technical or safety issues not l
previously reviewed in the original licence proceedings.
The purpose of the Commission's hearing procedures is to provide the public with an opportunity to be heard where legitimate < new issues with concrete effects on public health and safety are involved.
Here, however, the petition by MFP does not raine any such issues in connection with the proposed amendment.
- Ruther, it purports to reopen and relitigate issues which tha l
Commission resolved at the time Diablo Canyon's original licenses were issued, such as the seismic design of the plant and the adequacy of the plant's prcgrams for maintaining plant components over tnelr dosigned operating life.
These issues simply are not relevant to the type of anendment involved here.
Petitioner's attempt to raise issues previously resolved also is particularly inappropriate in light of Diablo Canyon's outstanding operating and safety record since the original licenses were issued -- a record which led the commission recently to recognize the plant as one of the safest in the country.
For these reasons, it makes no sense for the Commission to grant.a request for intervention or hold hearings where no new safety issues are raised and where the type of license amendment has been' granted previously to dozens of plants without opposition or hearings, precisely because it involves no new safety issues.
As further discussed below, the August 18, 1992, petition filed by
-2
MFP does not identify - with requisite particularity any injury resulting from the requested license amendment so as to demonstrate
- standing, fails to meet the standing requirements for organizations, and otherwise fails to satisfy the requirements for intervention specified in 10 C.F.R. 5 2.714.
Thus, the request for hearing and petition to intervene should be denied.
II.
BACKGROUND On July 9,
- 1992, PG&E submitted to the Nuclear Regulatory ComLission ("NRC") " License Amendment Request 92-04, 40-Year Operating License Application"
(" Proposed Amendment").
The Proposed Amendment is _ administrative in nature -- seeking to change the expiration dates of the full-power licenses for Diablo Canyon Units _1 and 2 to allow for 40 years of operation, dated from operating license issuance, as permitted by 10 C.F.R. S 50.51.
Sfa also 4 2 -U. S. C.
S 2133.c.
As discussed in the NRC Notice, the Proposed Amendment would not affect the design or operation of the
-facilities, or any governing Technical Specification or margin of safety, or any existing equipment maintenance and surveillance program.
As a result of a change in the license expiration dates, PG&E simply _ would. recapture the period of time -during which the Diablo Canyon units were undergoing construction and the initial licensing reviews prior to authorizing full-power operation.I' The l'
The' Proposed Amendment would change the expiration date for the Unit _1 Oparating License ("OL") from April 23, 2008, to (continued...)
1: f.
4 present' operating license terms for Diablo Canyon are based on an
- s
' NRC policy in effect prior to a
1982 determination by the commission that the 40-year operating term may begin upon issuance
- of the first operating license ("OL"), rather than upon issuance of the construction permit
("CP").
57-Fed. Reg.
32,575, col.
1.
Thus, the existing OL terms for Diablo Canyon commence upon the
-dates of CP issuance; April 23, 1968, and December 9, 1970, for Units 1 and 2 respectively.
Accordingly, the expiration date for the Unit 1 OL is April 23, 2008.
The Unit 2 OL expires on December 9,
2010.
Since 1982, the Commission routinely has accepted and approved requests to amend numerous -existing OLs to change expiration dates to recover the time-period between the effective date of the-CP and issuance of the first operating license.
More than' 50 such "CP-recapture" amendments have been issued by the
- Commission to date, extending licensen to the full 40-year term allowed by the-Atomic Energy Act.
In the present case, the proposed CP-recapture amendment is indeed an administrative change that introduces no new technical
- issues.
As stated in the amendment-application, the operational impacts of the Diablo Canyon units have been analy::ed during the prior NRC OL reviews based on a standard 40-year life.
In preparing-the Proposed Amendment, PG&E again assessed the safety
' aspects of operation of each Diablo Canyon unit for the requested l'(... continued)
September 22, 2021, and the expAration date for the Unit 2 OL from December 9, 2010, to April 26, 2025..
~
4 9
40-year operating: term.
Based on this assessment, PG&E concluded that-plant' safety will be maintained during the requested term of operation.
This conclusion is supported by_the following factors:
- (1) the Diablo Canyon facility has been' designed.and analyzed for at least 40 years of operation; (2) equipment, structures, and materials were purchased or constructed on the basis of a 40-year operating term;F and (3)
PG&E _ has developed and implemented inspection and maintenance programs that are effective for a ful1~
40-year operating term.F The July 22, 1992, Federal Recister Notice included a proposed'no_significant hazards consideration determination by the NRC Staf f.
See 57 Fed. Reg. at 32,575. ' The proposed determination underscores the nature of the Proposed Amendment.
For example, the Staff has concluded,- among other
- things, that the Proposed
- Amendment involves no physical change -in' the plant equipment or operating procedures, that existing plant accident analyses are based _ on a 40-year term of plant-operation, and that PG&E's
- existing surveillance and maintenance practices " ensure timely-identification.and correction of any degradation of safety related equipment."
57 Fed.-Reg. 32,575, col.
2.
With - respect to the Y
See, _
e.o.,
Diablo Canyon Final Safety _ Analysis Report, Chapter 5, Table 5.1-1.
F~
_In addition, PG&E has reviewed the ' Diablo Canyon Final Environmental Statement ("FES") (May_1973) and Addendum, as well as the Environmental Report and accompanying Supplement.
The results indicate that no additional significant environmental impacts, beyond those originally asnessed,
=would. result from the Proposed Amendment.
- See, e.c.,
FES at 7-4; Table 10.1 at 10-4.,
latter, these maintenance and surveillance programs would be no dif f erent in content or effectiveness over a 40-year operating life than they otherwise would be without the Proposed Amendment.
The proposed no significant hazards determination similarly addresses the long term integrity of the reactor vessel and points out that the issue has been previously evaluated, and that "both reactor vessels are safe for normal operations in excess of 40 years."
M. ; see also Proposed Amendment, at page 14 (reactor vessels were designed and fabricated "for transients considered to envelope conditions over a 50-year operating period").
The Notice specified that "any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene" by August 21, 1992.
M. at 32,571
[ footnote added).
The Notice also described the requirements of 10 C.F.R.
S 2.714 applicable to petitions to intervene.
By letter dated August 18,
- 1992, and postmarked August 20,
- 1992, Nancy Culver, President of the MFP Board of Directors, requested that a hearing be held regarding the Proposed Amendment.
The petition should be deemed to have been filed on August 20, 1992.i' Thus, in accordance with the requirements of 10 C.F.R.
SS 2.710, 2. 712 (e) ( 3 ), and 2.714(c), this Answer is due by September 4, 1992, and is being timely filed with the Commission.
d' The request was delivered to PG&E, via first class mail, on August 24, 1992, in an envelope postmarked August 20, 1992.
Filing is accomplished, inter alia., as of the time of deposit in the U.S. Mail.
10 C.F.R. S 2.701(c).
Thus, the postmark indicates the date of filing. -
_ =.
III.
DISCUSSION The petition as filed fails to meet the requirements for organizational standing and f ails to demonstrate that either MFP or
-its members will suffer any palpable offsite injury rationally connected to the Proposed Amendment at issue in this proceeding.
Therefore, MFP's request for hearing and intervention petition should be denied.
In Section ' A below we set forth a brief recitation of applicable NRC standing requirements.
In Section B we turn to the petition currently before the NRC.
A.
Local Reauirements Governinc Intervention Petitions 1.
General Statutory-and Regulatory Standing Requirements Applicable to NRC Proceedinos Section 189.a, 42 U.S.C. S 2239.a, of the Atomic Energy Act ("AEA") provides, in pertinent part, that:
In any proceeding under this chapter, for the
- granting, suspending,
- revoking, or amending 'of any license or construction parmit, or application to-transfer control,
. the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceedina, and shall admit any such person-as a party to such proceeding.
[ emphasis added).
Under NRC regulations, "any person whose interest may be affected by a proceeding and who desires to participate as a party _shall file a written' petition for leave to intervene."
10 C.F.R. 5 2.714 (a) (1).
Such petition must satisfy l-the following requirements:
i The petition shall set forth with l
particularity the interest of the petitioner
! l
in the proceeding,.119w that interest may be affected by the results of the nroceedina.
including the reasons why petitioner should be permitted to intervene,-with particular reference to the f actors in paragraph (d) (1) of this section, and the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.
10 C.F.R. S 2.714 (a) (2) (emphasis added).I' In determining whether a person or organization has sufficiently-established an interest, protected by the AEA, that may be affected.by the proceeding, the Commission applies contemporaneous judicial concepts of standing.
- See, e.a.,
' Sacramento Mun.
Util.
Dista (Raimno Seco Nuclear Generating Station), CLI-92-2, 35 NRC 47, 56 (1992) ; fietropolitan Edison Co.
(Three Mile Island' Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 332' (1983); Portland General Elec.
Co.
(Pebble Springs Nuclear Plant, Unita 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976).
These judicial concepts require a petitioner to " establish that he or she
~
will' suffer a distinct and - palpable harm that constitutes the injury in fact, that the injury can be traced fairly to the
- l' 10 C.F.R.
S
- 2. 714 (d) (1) provides
- that, in considering petitions for leave to intervene or requests for hearing, the commission or presiding-officer shall consider,.among other matters, the following factors:
(i)
The nature of the petitioner's right under the AEA to be made a party to the proceeding.
(ii)
The nature and extent of the petitioner's
- property, financial, or other interest in the proceeding.
(iii)
The possible effect of any order that may' be entered in the proceeding on the petitioner's interest.
8'-
S challenged action, and that the injury is likely to be redressed by a _ f avorable decision in the proceedir. T. "
Public Serv. Co. of New Hampshire (Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261, 266-67 (1991).
- See, e.o.,
lluclear Ena'c Co.
(Sheffield,
- Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978) (there must be a concrete demonstration that harm to the petitioner, or those it represents, will or could flow from a result unfavorable to it).F The Supreme Court recently underscored that, in an action premised upon the Administrative Procedure Act, 5 U.S.C.
S 555, e t p 3 _q. ("APA"), standing requirements are not permissive; standing requires a distinct, affirmative showing by a would-be
- intervenor.
A prospective intervenor must show not only that he or she is _ within the zone of interests protected by the statute involved,-but also that he or she will suffer a palpable " legal wrong becausu of the challenged agency action or (be) adversely affected or aggrieved by that action within the meaning of a relevant statute. " Luian v. National Wildlife Fed'n, 497 U.S. 871, 110 S.
Ct 3177, 3186 (1990).
See also APA, 5 U.S.C.
S 702.
To
- show that one is adversely affected or aggrieved by agency action within the meaning of a relevant statute, one must provide specific facts showing the manner in which the agency action causes harm.
F Similarly, mere academic interest in a matter or a result is not sufficient to establish standing.
Sierra Club v. Morton, 405 U.S.
727, 739-40 (1972); Edlow International Co.
(Agent for the Government of India c Application to Export Special Nuclear Material), CLI-7 6-6, 3 NRC 563, 572 (1976). One must show he would be actually - harmed by-the outcome of the
' proceeding in order to intervene.
JA. at 573-74.
M. at 318 6-187.
Making general or conclusory allegations of harm without detailing specific agency acts causing harm is not enough to establish standing.
M. at 3186-88.
Furthermore, with respect to a hearing on an NRC licensing action, the matters outlined in the NRC Federal I.aister notice of opportunity for hearing define the scope of the proceeding on the action.
See Wisconsin Elec. Power Co.
(Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 NRC 335, 339 (1983) ; Northern Indiana Pub. Serv.
Co_,_ (Bailly Generating Station, Nuclear 1), ALAB-619, 12 NRC 558, 565 (1980).
Thus, parties may not premise n'anding upon, or seek to litigate, issues that are not within the scope of the notice of opportunity for hearing.
Sqq a_lgn Bellotti v. United States Nuclear Reaulatory Comm'n, 725 F.2d 1380, 1831 (D.C. Cir. 1983).
2.
Orcanizational Standina Regardless of whether a petitioner is an organization or an individual seeking a hearing, the same showing of injury is required.
See Florida Power & Licht Co.
(Turkey Point Nuclear Generating Plant, Units 3 and 4), ALAB-952, 33 NRC 521, 529 (1991).
An organization seeking to intervene in a proceeding must establish injury to its organizational interests, and demonstrate that those interests are protected by the AEA.
M. at 528-3 0.
Absent injury to itself, an organization has standing only if it alleges "that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves -
m-c
-l
/ brought suit."L: Warth v. Seldin, '422 U.S. ;490, 511 (1975); pe2 also e
' Houston Lichtina and Power'Co. (South' Texas-Project, Units'1 and-2),.iALAB-5494'9 NRC 644, 647-(1979).
Without a "particularization of- ' how :the interests of one or more members might be L
--adversely'affected" by the licensing action,.an organization lacks standing. Allied-General Nuclear Servicen (Barnwell Fuel Receiving e
and-Storage Station), ALAB-328, 3 NRC 420, 422 (1976).
To meet these requirements for organizational-standing, an organization-seeking to represent the' interests of its members must -identify one or more 'of its - individual' members by. name and
~
address, identify any member. activities that are-carried out in close proximity to the plant' site,-and show that it.is-authorized-lto request.alhearing-on its members'-behalf.
Houston Lichtina angl Power Co.~ (Allens Creek Nuclear Generating Station, Unit 1), ALAB-
~
. 535,L9 NRC 377, 392-96-(1979);-Arizona Pub. Serv. Co.-(Palo Verde T Nuclear: Generating Station, - Units 1,-
2,-and 3), LBP-91~-4, 33 NRC
.153,-:158 (1991).
- The organization must _ 'also provide _ concrete evidence. i(such as an affidavit) that: the ; member:: wishes-to be r
represented by the organization-in the proceeding.
Vermont Yankee
~
Nuc1 ear Power' Coro.. (Vermont Yankee Nuclear Power Station),_ LBP.
z7, 25 NRC 116,-118-(1987).
1 P
l3.-
. Operating iLicense
-or Construction Permit.
2'
-Proceeding Concepts of Proximity'..of-Residence.to
-theiPlant:are Inade'quate Bases for Standing in:an Operatina License Amendment Proceedina While a petitioner's residence within fifty. miles of a.
power - reactor -mayf support a. finding of-standing -in -an - initial
- 11.-
licensing' proceeding, Philadelnhia Elec. Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1433-435 (1982),
standing to intervene in a license amendment proceeding requires a particularized showing of harm or injury resulting from the amendment at issue.
The Commission does not permit a petitioner to rest standing on the mere presumption that residence within fifty miles of the reactor creates standing.
For example, the Commission has held that, in order to establish standing to intervene, a petitioner must allege.a clear potential for offsite consequences resulting from a license amendment; consequences that would cause
.an injury in fact to the petitioner.
S_qe Florida Power & Licht Co.
(St. Lucie Nuclear Powe-Plant, Units 1 and 2), CLI-89-21, 30 NRC
~325, 329-30 (1989).
As the Commission noted in the St. Lucie proceeding on an exemption which was noticed for opportunity for a hearing, cases conferring standing based on a specific dista'nce from the plant
" involved the construction or operation of the reactor itself, with
- clear implications for the offsite environment, or major alterations to the facility with a _ clear potential for offsite consequences."
M. - at 329.
The Commission contrasted such cases
. with those involving minor license amendments:
" Absent situations involving such obvious potential for offsite consequences, a
petitioner must allece some specific ' in-iury in-fact' that will M.
at 329-30 (emphasis result-from the action taken.
added).
Licensing _ boards have consistently interpreted this M
opinion to eliminate the presumption of standing based on residence
- within fifty miles of the plant in license amendment cases.
For example, in Vircinia-Elec. and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-790, 20 NRC 1450 (1984), the Appeal Board upheld the denial of a request for hearing and intervention regarding an amendment to expand the capacity of the North Anna spent fuel pool to accommodate the receipt of assemblies from a sister plant.
The Appeal Board held that the petition it rejected was not based upon "a
particularized claim that the modification of the North Anna spent fuel pool might pose a health and safety risk to (the intervenor's) members or have a significant
- environmental impact."
M.
at 1453.
Without regard to the residence of any of the petitioning organization's members, the Appeal Board simply observed that the proposed amendment' entailed no "significant. safety or environmental implications," such that "the undertaking of the (spent fuel pool) modification at tais time perforce could occasion no harm to the organization or its members."
M. at 14 54.
The Licensing Board, in the Shoreham case,2' summarized these principles:
The-Commission does not allow the (fifty mile) presumption to be applied.to all license amendments.
-It only does so in those instances involving an obvious
-I'-
The Shoreham case addressed standing in a context admittedly different from the present case, i.e.,
that of a potential intervenor attempting to support continued operation of a plant otherwise planned to be decommissioned.
Nonetheless,
-the basic concepts of standing as applied in that case would apply in our case. _
~ --
ipotential f o r 7 o f f s i t e' : consequences.
-Those include-
~
applications
.for-construction
- permits, operating licenses..or.significant amendments thereto such as ~ the -
z
- expansion of the capacity;of a-spent; fuel pool.
Those
' cases 1 involve the. operation of-the reactor..itself,_-or
- major alterations. to-the--facility cwith a
clear potential-- for offsite conseque6ces. - ' Absent. situations with obvious potential'.for of fsite consequences, a petitioner must allege'some specific injury -in fact thatlwill-result from the-action taken.-
e
- 'g."
~~
sLona Island Liahtina Co. (Shoreham Nuclear-Power Station, Unit-1),
'LBP-91-7, 3 3 = NRC, 17 9, 18 6 - (1991).-.Because a - petitioner 'in an Joperating license amendment proceeding, such as this,- is not entitled to' rely upon.the presumption of standing in an^ operating license case,.he,=she, Lor =it is obliged to-demonstrate compliance
- with :the three-fold 7 requirements under-10 C.F.R.
S ?.714(d) to
- demonstrate Dinterest 'in the proceeding.
.Where - the t.nendment at
. issue.couldLperforce occasion no harm,. standing must be-denied.
ja. -
MFP!s-August 18 ~,.1992 ~,. Letter Does. Not Sahsfy The Lecal'Recuirements Governina-Interventior.
Applying the' above-stated principles to the Petitioner's
- letter requesting:a hearing.and leave tofintervene, the Licensing Board should deny the request. JAs. explained ~below, Petitioner has
~
neither.
satisfied.
-applicable procedural requirements nor
' demonstrated an-interestLin the. proceeding sufficient to support-
~
tintervenor' status.
11.-
-On'Its Face,-MFP's Petition is
' Procedurally Deficient The August-18,
- 1992, MFP letter does not satisfy organization ~al? standing requirements.
It does not identify a-
_ f-we y
single member of the organization, by name and address, who has the-requisite' interest in the proceeding and wishes to be represented by the organization.
Concrete evidence of the latter, such as an affidavit, is conspicuously absent.
Absent such evidence, MFP may not be granted intervenor status.I' S,g_q Vermont Yankee, LBP-87-7, 25 NRC at 118.
2.
Petitioner's Request Fails To Demonstrate A Clear Potential For Offsite Consequences or Any Resultina Iniury In Fact Apart from its procedural deficiencies, the August 18, 1992, letter-also f ails to set forth a substantive basis to support the; request for hearing and intervention.
Because this is a license amendment proceeding, rather than an. operating license proceeding, geographic proximity to Diablo Canyon is not a sufficient basis on which to support standing.
Thus, neither the fact that MFP " originally intervened in the licensing proceedings for the. Diablo Canyon Nuclear Plant in 1973 nor the observation-that the " majority" of the unidentified MFP members
" live and.own property in San Luis Obispo-County in which Diablo l'
We recognize that the Commission has historically been very-
-tolerant of procedural defects in pleadings by would-be intervenors, and will generally allow an opportunity to correct such defects.
- However, where, as
- here, the-Petitioner is admittedly an experienced intervenor in NRC proceedings, such tolerance would seem to be inappropriate.
.SAq, e,m,
Statement of Policy on Conduct of Licensina Proceedinas, CLI-81-8,13 NRC 452, 454 (1981) ("(f]airness to all involved--in NRC's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Commission regulations").
Se_g also ' Public Service Co.
of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-918, 29 NRC 473, 484 (1989).
Canyon Nuclear Plant Units 1 and 2 r.ro located," is sufficient to establish' standing.
In short, the petition for intervention must be denied because no particularized injury to MFP or its members has-boon demonstrated to arise from the requested license amendment.
Sag 10 C.F.R. SS 2.714 (a) (2) and (d) (1).
The August 18, 1992, letter references, first, a general
" concern about the Diablo Canyon Nuclear Power Plant, its daily operation and problems related to the plant."
obviously, such a generalized concern could not confor standing in any context, much less-the context of an operating license amendment proceeding.
SAS,c.q., Morton, 405 U.S. at 739 (1972).
This statement fails to u
. provide any basis or specificity for a concern, or any nexus between-the stated general concern and the construction period recapture amendment at issue..
As discussed above, the Proposed Amendment involves only an administrativo change to the expiration dates for'the-licenses, and involves no new, previously unreviewed safety or-environmental consequences; nor has Petitioner alleged auch issues or the mannor in which they could affect the Petitioner or/its members.
In sum, Petitioner has not alleged with requisite
. particularity any clear potential for offsite consequences rosulting from the -requested : license amendment that would cause it injury in fact.
Sh Lugig, CLI-89-21, 30 NRC at 329-30.
The Petitioner citos neveral
" specific concerns" purportedly raisod-by the extension of the expiration dates of the Diablo Canyon licenses. Ilowever, those more specific concerns also 1 l
f all to support standing.2' -Again, while the concerns are slightly more specific, there is no showing that these concerns could result in injury to the Petitioner (or its members), or that any such injuries - would be the - result of the amendment at issue.
Egg
- Seabrook, CLI-91-14, 34 NRC at 266-67.
The present hearing opportunity is limited by the Federal ' Reaister Notice to the Proposed Amendment, and is not the occasion to re-litigate all issues related-to operation-of the plant.
First, the Petitioner makes a general observation that
"[t]he aging of nuclear power plant components is one of the most persons living near these plants."
important issues facing This statement alone is again overly general and insufficient to 1
support standing.
The aging concern is_ amplified later in. the letter by a reference to the age of_"some" plant materials and the effect of
" aging" on nuclear power plant components.
In particular, MFP asserts that " steam generator tubes are susceptible to a host of aging issues," and that "[o]ther problems of aging plants are pipe
- thinning, wold-and pipe -cracking and the embrittlement of reactor pressure vessels andreactor [ sic) pressure vessel. supports."
2' These " concerns" might arguably satisfy the requirement of 10'C.F.R.
S 2.714 (a) (2) that a petitioner set forth "the specific aspect or aspects of the; subject matter of the proceeding as - to. which ~ petitioner wishes to intervene."
However, as discussed below, these aspects are all outside thel scope of the current proceeding.
Therefore, not only do these concerns fail' to demonstrate an -injury creating
- standing, they-fail to satisfy' the
" specific aspects" requirement of - S 2.714.
Egg Vermont Yankee Nuclear Power Corn.
(Vermont. Yankee Power Station), LBP-90-06, 31 NRC 85, 89 (1990).
The Petitioner has not demonstrated, however, that these alleged problems exist at Diablo Canyon or, even if they did exist, how they.would create offsite injuries, or how they would in any
-way be affected or exacerbated by the Proposed Amendment.
In fact, Petitioner has completely failed to address in any way the wealth of material available on PG&E's existing surveillance, maintenance, and other related. programs.
As discussed above, and at length in the amendment application, PG&E's existing surveillance and maintenance programs at Diablo Canyon have been demonstrated to identify any aging phenomena effectively and maintain the plant at an adequate level of safety for a 40-year operating term.
All of these matters were part of-the initial license review and hearing opportunity, and are unaffected by the Proposed Amendment.
The
-general concerns voiced in the letter lack basis, are outside the scope of-this proceeding, and fail to support standing.
Has Nortt)
AnD_a, ALAB-790, 20 NRC at 1454.
a The petition next alleges that MFP "may b3 confronted with potential accident scenarios which go beyond the design basis
.of-current safety systems."
However, Petitioner does not identify the " potential accident scenario's" to which it alludes, and fails
-to explain-how these undefined scenarios would create potential offsite' consequences as a result of the requested license amendment
-- - other than a passing reference to " aging."
As such, the asserted injury to the Petitioner is wholly conjectural, hypothetical, and
- abstract, rather than
- distinct, palpable, particular, and concreto.
See seabrook, CLI-91-14, 34 NRC at.
4
-266-67.
Because MFP has not demonstrated that it could suffer injury in fact due to grant of the requested amendment, its request
-for hearing and petition to intervene cannot be granted on this basis.
The letter next refers to the " unsolved problem of the Thermo-lag [ sic) material used in fire safety" at Diablo Canyon and elsewhere.
However, the Thermo-Lag issue is clearly outside the scope of the' instant proceeding.
Degradation of Thermo-Lag fire barriers is an issue-currently affecting several nuclear plants.8 It is an issue that is-being addressed by PG&E, the industry, and the NRC.
There is simply no connection between this issue and the Proposed Amendment, and-therefore the concern cannot provide a basis for standing.
See Point Beach, ALAB-739, 18 NRC at 339 (scope of the proceeding is limited by the Federal Reaister notice); Luian, 110 S.Ct at.3186-188 (harm on which standing is based must result from the agency action at issue).
Furthermore, Petitioner has failed to show how possible inadequacies in Thermo-Lag fire barriers would give rise to offsite injuries.
Ir. fact, in view of recent Thurmo-Lag fire barrier test results, compensatory measures are already in place at Diablo
. Canyon' and adequate fire protection exists.
For example, in response to the Information Notice on this issue, PG&E put in place 1
W h
e.a.,
" Current Fire Endurance Test Results for Thermo-Lag Fire Barrier Material" (July.27, 1992); NRC Information Notice 92-46, "Thermo-Lag i
Fire Barrier Material-Special Review Team Final Report
- Findings, Current Fire Endurance
- Tests, and Ampacity Calculation Errors" (June 23, 1992).
,. I p
fire watches in addition-to previously existing fire watches.
The NRC Staff has generally concluded that Thermo-Lag issues do not undermine reasonable assurance that nuclear plant operations can be conducted safely.
- S_gg, o.a.,
Information Notice 92-46, Attachment n-1 at 33-34.H' Accordingly, standing cannot rest on this basis..
Similarly, MFP's allegation of a " possibility" of the Department of Energy " reneging" on its responsibilities regreding the storage of high-level waste bears no nexus to PG&E's request for a purely administrative change in the OLs for Diablo Canyoti Units 3 and 2.
This assertion is purely speculative and, in any event, is a matter outside the scope of the present proceeding, as defined by the Notice.
Point Beach, ALAB-739, 18 NRC at 339.
Moreover, even if the Petitioner's factual premise were correct, the Petitioner has failed to demonstrate resulting cffsite
' consequences or other in-jury in fact to either the organization or its members.
Finally, Petitioner notes its concern regarding the
" plant's location in an_ area of high seismic activity."
This concern,_ completely _ lacking in-specificity, also fails to confer standing.
S_qn 10 C.F.R. S 2. 714 (d) (1).
Seismic issues have been addressed at _ length -in the design _ and-licensing. of the Diablo Canyon units.
See Pacific Gas and Electric Company (Diablo Canyon H'
Sgg also letter from Thomas E.
Murley, Director, Office of
- Nuclear Reactor-Regulation, to Mr. Michael Mariotte, dated August 19,
- 1992, (responding to a petition filed by the-Nuclear Information Resource Service, pursuant to 10 C.F.R.
S 2.206; the Staff concludes that Thermo-Lag fire barrier problems do not pose an imminent safety risk)..
9 Nuclear Power Plant, Units 1 and 2), ALA3-644, 13 NRC 903 (1981).
Likewise, this assertion has no discernible connection to the Proposed Amendment at issue.- Accordingly, Petitioner has f ailed to establish that either MFP or its members will suffer "a distinct (or) that the injury can be traced fairly and palpable harm.
to the challenged action."
- Seabrook, CLI-91-14, 34 NRC at 266-67.9 In - sum, the Proposed Amendment involves no physical
- change in plant equipment or operating procedures.
Existing plant accident analyses are based on a 40-year operating term.
Both reactor pressurt 7essels were designed and fabricated for transients considered to envelope conditions over the course of a 50-year operating period.
Existing surveillance and maintenance programs address equipment aging, irrespective of the licensed period of plant operation.
Petitioner has failed completely to Seg also Florida Power and Licht Co. (St. Lucie Nuclear Power Plant,. Unit 1), LBP-88-10A, 27 NRC 452, 466 (1988),_alf'd on other arounds, ALAB-893, 27 NRC_627 (1988).
NRC practice also generally.
recognizes the applicability in its preceedings of the judicial concepts of re.g iudicata and collateral estoppel.
Alabama Power Co.
(Joseph M.
Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, modified on other arounds, CLI-74-12, 7 AFC 203 (1974) ; Public Service Company of New Hampshire (Seabrook Station, Units.1 and 2),
CLI-78-1, 7 NRC 1, 27 91978).. Petitioner was a party in the Diablo Canyon OL proceedings during which seismic issues were extraordinarily well ventilated.
At a minimum, seismic issues in the present context should - be considered rag judicata.
Compare Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
LBP-89-3, 29 NRC 51, 56-59, a f f ' d, - ALAB-915, 29 NRC 427 (1989)
(finding that aspects of~ late filed seismic conce: 1s;were barred by the doctrine of rag judicata).- Accordingly, standing should not be premised on these concerns; these aspects of Petitioner's stated interests should be deemed outside the scope of the proceeding.
I !
1
particularize any concreto injury in fact, supported by specific facts, that either MFP or its nombers could suffor as a result of the Proposed Amendment.
The issues raised by MFP ir its hearing request are without
- basis, are outside the scope of thiL proceeding, and are insufficient to co.ifor standing.
IV.
CONCLUSION For the reasons set forch above, the August 18, 1992, letter-requesting a hoaring and intervonor status does not satisfy the requirements for interven Aon, set forth in 10 C.F.P. 5 2.714.
Accordingly, the request should be donied.
Ro etfully submitted, M
g )d480' g
/
Josioph
. Knotts, Jr.I David Repka Kat n M. Kalowsky WINSTON & STRAWN 1400 L Street, N.W.
Washington, D.C.
20005-3502 (202) 371-5726 Christopher J. Warner Richard F. Locko PACIFIC GAS & ELECTRIC COMPANY 77 Beale Street San Francisco, CA 94106 Attorneys for Pacific Gas and Electric Company Dated in Washington, D.C.
this,{ h day of September, 1992 o,
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LLQINSING BQARD In the Matter of:
)
)
Docket Nos. 50-275-OLA Pacific Gas and Electric Company
)
J0-3?3-OLA
)
(Construction Period (Diablo Canyon Power
)
Recapture)
Plant, Units 1 and 2)
)
)
l NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith ontors an appearanco in the captioned matter.
In accordance with 10 C.F.R. S 2.713(b), the following information is provided:
Name:
Joseph B.
Knotts, Jr.
Address:
Winston & Strawn 1400 L Stroot, N.W.
Washington, D.C.
20005 Tolophone Number:
(202) 271 5731 Admissions:
United States Supreme Court District of Columbia Court of Appeals Namo of Party:
Pacific Gau & Electric Company 77 Boalo Street San Francisco, California 94106 In accordance with 10 C.F.R. S 2.712 (b), service in this proceeding should be made upon the undersigned and upon Christopher J. Warner, Esq. of the of Pacific Gas & Electric Company, Law Department, 77 Beale Stroot, San Francisco, 'allfornia 94106.
h j
JcpophA.Knotts, Jr. /
Winston & Strawn Counsel for Pacific Gas &
Electric Company Dated at Washington, District of Columbia, j
this YUI day of September, 1992
]
UNITED S*ATES OF AMERICA NUCLEAR REGULATORY COMMISSION IlEFORE Tile ATOMIC SAFETY AND LICEllSING BOARD In the Matter oft
)
)
Docket Nos. 50-275-OLA Pacific Gas and Electric Company
)
50-323-OLA
)
(Construction Period (Diablo Canyon Power
)
Rocopturo)
Plant, Units 1 and 2)
)
)
NOTICE OF APPEARAllCE Notico is heroby given that the undersigned attorney herewith ontors an appearanco in the captioned mattor.
In accordance with 10 C.F.R.
S 2.713(b), the following information is provided Namot David A. Repka Address:
Winston & Strawn 1400 L Street, N.W.
Washington, D.C.
20005 Telephono Numbert (202) 371-5726 Admissions:
District of Columbia Court of Appeals U.S.
Court of Appeals (Fourth Circuit)
Name of Party:
Pacific Gas & Electric Company 77 Boalo Street San Francisco, California 94106 k
enho _
i s
DaT/Id A.
Repka
\\
h Winston & Strawn Counsel for Pacific Gas &
Electric Company-Dated at Washington,-District of Columbia, this 44b day of September, 1992 1
,a
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DIf0RE Tile ATOMIC SAFETY AND LICENSING Br 22 i
In the Matter of:
)
)
Docket Nos. 50-275-OLA Pacific Gas and Electric Company
)
50-323-OLA
)
(Construction Period (Diablo Canyon Power
)
Recapture)
Plant, Units 1 and 2)
)
)
NOTICE OF APPEARANCE Notico is hereby given that the undersigned attorney herewith ontors an appearance in the captioned matter.
In accordance with 10 C.F.R.
S 2.713(b), the following information is provided:
Name:
Kathryn M.
Kalowsky Address:
Winston & Strawn 1400 L Strcot, N.W.
Washington, D.C.
20005 Telephone Number:
(202) 371-5738 s
Admissions:
District of Columbia Court of Appeals U.S.
Court of Appeals for the District of Columbia Name of Party:
Pacific Gas & Electric Company 77 Beale Street San Francisco, California 94106
/
Kathfyn M. KalowskyC/
Winston & Strawn Counsel for Pacific Gas &
Electric Company Dated at Washington, District of Columbia, this Y4f day of September, 1992
UNITED STATES OF Ah1 ERICA NUCLEAR REGULATORY COh1 MISSION BEFORE T11E ATOMIC SAFETi AND LICENSING BOARD In the Matter of
)
)
PACIFIC GAS AND ELECTRIC
)
Docket Nos. 50 275 OLA COMPANY
)
50 323 OLA (Diablo Canyon Nuclear Power
)
(Construction Period Recapture)
Plant Units 1 and 2)
)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter. In accordance with ( 2.713(b),10 C.F.R., Part 2, the following information is provided:
Name:
Christopher J. Warner Address:
Pacinc Gas and Electric Company Law Department 77 Beale Street P.O. Box 7442 San Francisco, CA 94120 Telephone Number:
(415) 973-6695 Admissions:
Supreme Court of Delaware
& California U.S. Court of Appeals for the Third and Ninth Circuits Names of Party:
Pacific Gas and Electric Company Respectfully submitted, t tr 1/ ( Ihl'Nn Christopher J. War r Counsel for Pacific Gas & Electric Co.
Dated at San Francisco, CA this 2nd day of September,1992
I UNITED STATES OF AhiERICA NUCLEAR REGULATORY COMhilSSION BEFOI(E THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of
)
)
PACIFIC GAS AND ELECTRIC
)
Docket Nos. 50 275 OLA COMPANY
)
50 323 OLA (Diablo Canyon Nuclear Power
)
(Construction Penod Recapture)
Plant Units 1 and 2)
)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above captioned matter. In accordance with s 2.713(b),10 C.F.R., Part 2, the following information is provided:
Name:
Richard F. Locke Address:
PaciDe Gas and Electric Company Law Department 77 Beale Street P.O. Box 7442 San Francisco, CA 94120 Telephone Number:
(415) 973-6616 Admissions:
Supreme Court of.,tassachusetts
& California U.S. Supreme Court U.S. Court of Appeals for the Third, Seventh, Nintb and Tenth Circuits Names of Party:
Pacific Gas and Electric Company f ully submitted,1 /
Res
/
Richard F. Locke Counsel for PaciDe Gas & Electric Co.
Dated at San Francisco, CA this 2nd day of September.1992
-_______________m____.
O UNITED STATES OF AMERICA h
NUCLEAR REGULATORY COMMISSION DEFORE THE ATOMIC SAFETY AND LICENSING '9ffAET -8 A10 :45
' ' ' 'u 3
"'IA"'
In-the-Mattor of:
)
)
DocketNos'.$bhh!$m0iA" Pacific Gas and Elect'ric Company
)
50-323-OLA
)
(Construction Period (Diablo Canyon Power
)
Rocapture)
Plant, Units 1 and 2)
)
)
CERTIFICATE OF SERVICE I hereby cortify that copies of " PACIFIC GAS AND ELECTRIC COMPANY'S ANSWER TO REQUEST FOR !! EARING AND PETITION TO INTERVENE" and a
" NOTICE OF APPEARANCE" for Joseph B.
Knotts, Jr., David A. Ropka, Kathryn M. Kalowsky, Christopher J. Warner, and Richard F.
- Locke, in the above-captioned proccoding have boon served on the f,911owing by deposit in the United States mail, first class, this 4^ day of September, 1992:
-Nancy Culver Atomic Safety and Licensing President, Board of Directors Board San Luis Obispo Mothers U.S. Nuclear Regulatory for Peace Commission 192 Lunota Street Washington, DC 20555 San Luis Obispo, CA 93401
-Office of the Socrotary Office of Commission Appellate U.S.-Nuclear Regulatory Adjudication Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Attn:
Docketing and Service Washington, DC 20555 Section (original + two copios)
Adjudicatory'Filo office of the General Counsel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Wasnington, DC 20555 Commission Washington, DC 20555-N Cuk
<Ck
^
9 avid A.
Repka
\\
Counsel for Pacific Gas &
Electric Company
..