ML20151V749
| ML20151V749 | |
| Person / Time | |
|---|---|
| Site: | Peach Bottom  |
| Issue date: | 02/11/1988 |
| From: | Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8805030175 | |
| Download: ML20151V749 (13) | |
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6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-277
) 50-278 (Peach Bottom Atomic Station )
Units 2 and 3) )
NRC STAFF RESPONSE TO COVVONWEALTH OF PENNSYLVANIA'S PETITION TO INTERVENE AND REOllEST FOR HEARING Ann P. Hodgdon Counsel for NRC Staff February 11, 1988 r I
)
8805030175 080211
{DR ADOCK 05000277 PDR
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l (JNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION in the Matter of f
) '
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PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-277
) 50-278 (Peach Bottom Atomic Stat!:,n )
Units ? and 3) )- ,
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I NRC STAFF RESPONSE TO COMVONWEALTH OF PENNSYLVANIA'S PETITION TO INTERVENE AND REOllEST FOR HEARING ,
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Ann P. Hodgdon Counsel for NRC Staff February 11, 1988 P
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p UNITED STATES OF AMERICA
, NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION in the Matter of ) 8
)
PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-277
) 50-278 i (Peach Bottom Atomic Station ) '
Units 2 and 3) )
a NRC STAFF RESPONSE TO COMMONWEAL.TH OF PENNSYLVANIA'S '
PETITION TO INTERVENE AND REQUEST FOR HEARING
.l. INTRODUCTION On December 23, 1987, the NRC published in the Federal Register a notice of consideration of issuance of amendment to the Peach Bottom op- ,
erating license and proposed no significant hazards consideration determl-l .
i nation. 52 Fed. Reg. 48,593. The proposed amendments would modify 1 Section 6 of the facility Technical Specifications to reflect a new corporate j and a new plant Staff organizational structure, a revised composition of
- the Plant Operations Review Committee and several administrative changes '
i in acc9rdance with the Licensee's application dated November 19, 1987.
The notice offered persons whose interest might be affected by the pro- !
ceeding and who wished to participate as parties in the proceeding an !
opportunity to file written petitions for leave to intervene by January 22, 1988. i j On January 22, 1988, the Commonwealth of Pennsylvania filed a "Pe-tition to Intervene, Request for Hearing and Comments Opposing No Sig-j .
nificant Hazards Consideration." l I
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> f As discussed below, the NRC staff believes that the Commonwealth has set forth Its interest and has identified at least one asoect of the proceeding on which it wishes to participate. 10 C.F.:t. I 2.714(a)(2).
Therefore, in the Staff's view, the Commonwealth has satisfied the stan-
, dards for intervention and should be granted party status after it has submitted a contention found to be admissible. 10 C.F.R. 5 2.714(b) .
- 11. B ACKC RO U.ND The Federal Register notice of consideration of issuance of amend-ment sets forth the backgrounct for the Technical Specifications change for which the licensee has applied. The notice identifies the application as part of the licensee's corrective action in response to an Order issued by the NRC on March 31, 1987, which reQulred the plant to be shut down-because of, cmong other things, inattentiveness by control room licensed personnel. 52 Fed. Reg. at 48,593 ( April 8, 1987). According to the notice, the proposed reorganization is reflected not only in the amendment application but also in the licensee's "Plan for Restart of Peach Bottom Atomic Power Station,Section I, Corporate Action," submitted to the Staff November 25, 1987 Further, the notice Indicated the issuance on December 18, 1987, of a temporary waiver of compliance with respect to deviations from the organizational structure currently described in Section 5 nf the Peach Bottom license. The notice states tha+. the waiver letter permits implementation of the proposed amendments on an interim basis pending completion of consideration of the amendment application.
i 111. DISCUSSION A. The Standards for Intervention
- 1. The "Interest" Requirements of 10 C.F.R. 9 2.714 Section 189a of the Atomic Energy Act of 1954, as amended, 42 ,
. U.S.C. 5 2239(a), provides that:
in any proceeding under (thel Act, for the granting,~
suspending, revoking, or amending of any license . . .
the Commission shall grant a hearing upon the reauest of any person whose interest may be affected by the pro-ceeding, and shall admit any such person as a party to '
such proceeding.
Section 2.714(a)(2) of the Commission's Rules of Practice, 10 C.F.R. 9 2.714(a)(2), requires that a petition to intervene in a Commission pro- l ceeding set forth with particularity: '
(1) the interest of the petitioner in the proceeding; (2) how that interest may be affected by the results of the proceeding; and (3) the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene, in order for intervention to be granted, the petition must be found to satisfy these standards. 10 C.F.R. 5 2.714(d),
in determining whether the requisite interest prescribed by both Section 189a of the Atomic Energy Act and Section 2.714 of the Com-mission's Rules of Practice is present, the Commission has held that con- l temporaneous judicial concepts of standing are controlling. Portland General Electric Co. (Pebble Sprinos Nuclear Plant, Units 1 and 2),
CLl-76-27, 4 N RC 610, 613-14 (1976). Thus, there must be a showing (1) that the action being challenged could cause "injury-in-fact" to the '
f 1
4-person seeking to intervene M and (2) that such injury is arguably within the "zone of Interests" protected by the Atomic Energy Act2 ,/ or the National Environmental Policy Act. 3/ Id. See also, Wartn v. Seldin, 422 U.S. 490 (1975); Sierra Club v. Morton, 405 U.S. 727 (1972);
Association of Data Processing Service Organizations v.' Camp, 397 U.S.
150, 153 (1970).
- 2. The "Aspect" Recuirements of 10 C.F.R. 6 2.714 in addition to demonstrating "Interest," a petitioner must set I
forth "the specific aspect or aspects of the subject matter of the proceed- i ing as to which petitioner wishes to in tervene. " 10 C.F.R.
A 2.714(a)(2), b There is little guidance in NRC case law concerning 1/ "Abstract concerns" or a "mere academic interest" in the matter which are not accompanied by some real impact on a petitioner will not confer standing. See, Exxon Nuclear Company (Ten Applications I for Low-Enriched Uranium Exports to EURATOM Member Nations),
CLI-77-24, 6 NRC 525, 531 (1977); Pebble Sprinos, (CLi-77-27, su-pra, 4 NRC at 613. Rather, the asserted harm must have some par-ticular effect on a petitioner, Ten Applications, CLl-77-24, s upra ,
and a petitioner mur,t have sorre direct stake in the outcome of the proceeding . See, Allied-General Nuclear Services (Barnwell Fuel Receivino and ST6 rage Station), ALAB-328, 3 NRC 420, 422 (1976).
2/ 42 U.S.C. 5 2011 et sg.
3/ 42 U.S.C. 6 4321 et seq.
4/
- 10 C.F.R. 5 2.714 also requires the petitioner to file ". . . a sup-piement to his petitlen to intervene which must include a list of the content'ons which petitioner seeks to have litigated in the matter, I and the bases for each contention set forth with reasonable specific-ity." This section further provides: " A petitioner who falls to file such a supplement which satisfies the requirements of this paragraph c.ith respect to at least one contention will not be permitted to par-
, ticipate as a party." The NRC sta'f will respond to the contentions i set forth in the supplement after its receipt. Accordingly, nothing said here by the Staff regarding the petition's "aspects" is Intended to apply in any way to satisfaction of the 10 C.F.R. I 2.714 conten-tion requirements.
e r
the meaning of "aspect" as the term is used in 10 C.F.R. 6 2.714; how-f ever, a petitioner may satisfy this requirement by identifying general i potential effects of the licensing action or areas of cencern which are ;
- within the scope of matters that may be considered in the proceeding. El i !
l , See, Virginia Electric Power Co., (North Anna Power Station, _ Units 1 l and 2), ALAB-146, 6 AEC 631, 633 (1973).
B. The Commonwealth of Pennsvivania's Petition i
l 1. Interest and injury
- Pegarding its interest, the Commonwealth states that, as parens j patriae, its interests include "protecting the health, safety and property
, of every person within its boundaries. Recause . . . the proposed 11-
. cense amendments represent PECO's response to the 'Immediate threat to the public health and safety' caused by PECO's management failure, the [
i effect on Pennsylvania's public health and safety will turn on the adequa- l i cy of the proposed changes, if those changes are inadequate, they will l i !
affect the Commor. wealth's interests, and the possibility that they may be inadenuate satisfies the statutory requirement for intervention."
~
i Petition t
- at 7. I i.
The Staf'l believes that the Commonwealth has adequately set forth
- its Interest and has shown hcw its interest might be affected by the out- '
come of the proceeding. Accordingly, the Commonwealth has made the ;
i showing necessary to a finding that it has standing to intervene.
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.1 4 5/ The subject matter of the proceeding for purposes of identification of l
! "aspects" relates to the question of public health and safety of the
{ proposed action (issuance of the amendment) and not the procedural ;
(FOOTNOTE CONTINUED ON NEXT PAGE) l 1
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- 2. Specific Aspects of the Sublect Matter of the Proceeding The Commonwealth has identified a number of aspects on which it wishes to intervene. At least one of those aspects, the failure of the technical specifications to mention the function, responsibilities, or
, personal qualifications of the Independent safety evaluation group (Peti-tion at 8), is rithin the scope of the notice and, thus, of any proceeding that might be conducted pursuant to that notice. Accordingly, in the Staff's view, the Commonwealth has properly identified at least one aspect on which it wishes to participate.
C. Other Matters Raised in the Commonwealth's Petition in addition to aspects related to the proposed reorganization, the Commonwealth raises a number of other matters that the Staff believes are beyond the scope of this proceeding.
- 1. Restart The Commonwealth states in its petition that it opposes any action by the NRC authorizing restart of Peach Bottom before a full hear-ing is held on any license amendment, any organizational plans and any event or condition leading to the March 31, 1987 shutdown order. Peti-tion at 1 In its petition, the Commonwealth recites that the licensee's detailed reorganization plan entitled "Plan for Restart of Peach Bottom Atomic Power Station, Section I, Corporate Action," submitted I
l (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
- determination made by the Commission staff oncerning whether or
- not the proposed actlen involves a "significant hazards considera-tion . " See, 5148 Fed. Reg. 7747 (March 6,1986).
4 4
E November 25, 1987, identified four root causes for declining performance at Peach Bottom but responded to only one of them, the fourth: corpo-rate management. Petition at 11-5. The Commonwealth also states that on December 2, - 1987, it petitioned the Commission to hold a hearing to
, consider safety problems before authorizing restart. Pet: tion at 5. The Commonwealth also notes the Commission's temporary waiver of compilance, by which it permitted the licensee to implement its reorganization plan pending Commission approval (Petition at 5) and denial of the Common-wealth's December 2,1987, petition.
In response to these concerns, it should be emphasized that this proceeding does not involve whether the facility should be allowed to restart. The Federal Register notice to which the instant petition re-spends does not address the authorization of restart; it deals with au-thorization of changes to corporate and plant staff organizational structure. As intervention is limited to the scope of the notice (See, North Anna, 6 AEC at 633, supra), the scope of any hearing held as a result of the Commonwealth's instant petition would not include consider-ation of the subject of restart.
in the instant petition, the Commonwealth explains its filing of the petition of December 2, 1987, to have been Intended as a petition ;
under 10 C.F.R. 6 2.206 requesting that a hearing be held prior to the 1 authorization of restart. Petition at 6. The Commonwealth suggests that the Commission's assumption in its January 15, 1988 denial that the peti-tion was late-filed and related to the shutdov.n order of March 31, 1987, was mistaken. Petition at 6 Whatever may be the merits of this argu-i ment, the present posture of the matter is that the Commission has denied l
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f the petition that the Commonwealth filed in December and that the amend-ment at issue in this proceeding does not authorize restart, in any event, the relief that the Commonwealth seeks in the instant petition, a hearing on restart, is not within the scope of the Federal Register notice
, to which the Commonwealth's petition responds.
- 2. No Significant Hazards Consideration Determination In its petition, the Commonwealth addresses the Staff's pro-posed determination of no significant hazards consideration at some length. Petition at 12-19. The Commonwealth's discussion of this pro-posed determination is styled a "comment" and it will be considered by the Staff in reachir.g its final determination regarding no significant haz-ards consideration. A no significant hazards consideration determination is a procedural determination stemming from the "Sholly" amendments to 6189a of the Atomic Energy Act, 42 U.S.C. 5 2239(a). After the NRC staff or the Commission has made such a determination, it may make ef-fective a proposed license amendment prior to any hearing on the re-quest. The determination itself is not subject to challenge in a license amendment proceeding:
No petition or other request for review of or hearing on the staff's significant hazards consideration will be en-tertained by the Commission. The staff's determination
, is final, subject only to the Commission's discretion, on its own initiative, to review the determination.
10 C.F.R. 6 50.58(b)(6) .
The issue of whether the proposed arrendment does or does not involve a significant hazards consideration is not litigable in any hearing that might be held on the proposed amendment because, as the Commis-sion has observed, the finding is a procedural device whose only purpose
is to determine the timing of the hearing (before or after issuance of the amendment). Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-86-12, 24 NRC 1, 6 n.3 (1986), reversed in get on other grounds, San Luis Obispo, Mothers for Peace v. U.S. Nuc-
. lear Regulatory Commission, 793 F.2d 1268 (9th Cir.1986).
IV. CONCLUSION For the reasons discussed above, the Commission should find that the Commonwealth has established its standing to intervene and has iden-tified at least one aspect of the proposed amendment recuest in which it is interested.
Respectfuily sutmltted, t% ,
7)C $2G Ann P. Hodgdon Counsel for tTC Staf f Da ted a t Rockvi l le, Ma ryland this 11 th day of February,1988
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I
P UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
-In the Matter of ) ,
I t PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-277
) 50-278 (Peach Gottom Atomic Station )
Units 2 and 3)
)
CERTIFICATE OF SERVICE I herebv certify that copies of "NRC STAFF RESPONSE TO COMMONWEALTH OF PENNSY LVANI A'S PETITION TO INTERVENE AND !
REQUEST FOR HEARING" in the above-captioned proceeding have been !
served on the following by deposit in the United States mall, first class, '
or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mall system, this lith day of February,1988: !
Samuel J. Chilk George C. Freeman, Jr. , Esq.
Office of the Secretary Donald P. Irwin, Esq. t U.S. Nuclear Regulatory Commission Hunton s Williams f Washington, D.C. 20555* 707 East Main Street '
P.O. Box 1535
- Docketing and Service Section Richmond, Virginia 23212 l
- Office of the Secretary '
- U.S. Nuclear Regulatory Commission William T. Coleman, Esq. !
Washington, D.C. 20555* John H. Beisner, Esq.
O'Melveny & Myers :
Atomic Safety and Licensing 555 - 13th Street, N.W. j j .
Board Panel Washington, D.C. 20004 ;
I U.S. Nuclear Regulatory Commission 1 i Washington, D.C. 20555* Timothy D. Searchinger, Esq. '
i Richard P. Mather, Esq.
l Atomic Safety and Licensing John R. McKinstry, Esq. l
?
Appeal Board Panel 505 Executive House '
ll.S. Nuclear Regulatory Commission P.O. Box 2357 I Washington, D.C. 20555* Harrisburg, PA 17120 j i l 1
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E. G. Bauer, Jr., Senior Vice President and General Counsel Philadelphla Electric Company 2301 Market Street Philadelphia, Pennsvivania 19101 Morey M. Myers, Esq.
General Counsel Commonwealth of Pennsylvania
, Office of General Counsel P.O. anv 11775
. Harrisburg, Pennsylvania 17108 Jay Cutierrez Regional Counsel USNRC, Region i 475 Allendale Road King of Prussia, PA 19406*
It-(4 0C c1- h Xn'n 'P. Hodgdon {
Counsel for NRC Staff
.