ML20154E297
| ML20154E297 | |
| Person / Time | |
|---|---|
| Site: | Berkeley Research Reactor |
| Issue date: | 05/02/1988 |
| From: | Rutberg J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#288-6303 OLA, NUDOCS 8805200159 | |
| Download: ML20154E297 (9) | |
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UNITED STATES OF AMERICA 9g NUCLEAR REGULATORY COMMISSI fi ff
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in the Matter of
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UNIVERSITY OF CALIFORNIA,
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Docket No. 50-22 6g BERKELEY
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NRC STAFF RESPONSE TO CITY OF BERKELEY'S l
FETITION TO INTERVENE AND REQUEST FOR HEARING Joseph Rutberg Deputy Assistant General Counsel May 2,1988 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION O
in the Matter of
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UNIVERSITY OF CALIFORNI A,
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Docket No. 50-224 BERKELEY
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NRC STAFF RESPONSE TO CITY OF BERKELEY'S PETITION TO INTERVENE AND REQUEST FOR HEARING 1
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Joseph Rutberg Deputy Assistant General Counsel May 2,1988 I
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMYlSSION BEFORE THE COMMISSION In the Matter of
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UNIVERSITY OF CALIFORNIA,
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Docket No. 50-224 BERKELEY
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NRC STAFF RESPONSE TO CITY OF RERKELEY'S PETITION TO INTERVENE AND REOUEST FOR HEARING l.
INTRODUCTION On March 10, 1988, the NRC published in the Federal Register a notice of consideration of proposed issuance of orders authorizing disposi-tion of component parts and terminating facility license by the University of Californle, Berkeley.
53 Fed. Reg. 7,823 (March 10,1988).
The pro-posed orders would authorize the University of California, Berkeley (the Licensee) to dispose of the component parts of the research reactor in their possession, in accordance with the Licensee's application dated January 8, 1968.
The notice offered persons whose interest might be affected by the proceeding and who wished to participate as parties in i
the proceeding an opportunity to file written petitions for leave to inter-vene by April 11, 1988.
l On April 12, 1988, the City of Berkeley (City) filed a "Petition to Intervene, Recuest for Hearings and Further Relief."
l As discussed below, the NRC staff believes that the City has set l
l forth its interest and has identified at lease one aspect within the scope of the notice on which it wishes to participate.
10 C.F.R. 9 2.714(a)(2).
Therefore, the City, upon the submission of an admissible contention, will
~ have satisfied the standards for intervention and should be granted party status.
10 C. F. R. I 2.714 (b).
11.
BACKGROUND The Federal Register notice of consideration of the proposed issuance of orders sets forth the background for the action for which the Licensee has applied.
The notice indicates that the first of the requested orders would be issued following the Commission's review and approval of the Licensee's detailed plan for decontamination of the facility and disposal of the radioactive components, or some alternate disposition plan for the facility.
53 Fed. Rec. at 7,823 (March 10, 1988).
Following approval of the plan and its implementation the Commission, upon verification that acceptable radioactive contamination levels have been achieved, will Issue a second order terminating the facility license and any further NRC Juris-diction over the facility, id.
Ill.
DISCUSSION A.
The Standards for Intervention 1.
The "Interest" Reoulrements of 10 C.F.R. 6 2.714 Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 6 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 request of any person whose interest may be affected by the pro-ceeding, and shall admit any such person as a party to l
such proceeding.
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i Section 2.714(a)(2) of the Commission's Rules of Practice, 10 C.F.R. 6 2.714(a)(2), requires that a petition to intervene in a Commission proceeding set forth with particulerity:
(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 of 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. 6 2.714(d).
In determining whether the reouisite 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-temporaneous judicial concepts of standing are controlling.
Portland General Electric Co.
(Pebble Springs Nuclear Pla nt,
Units 1 and 2),
CLI-76-27, 4 NRC 610, 613-14 (1976).
Thus, there must be a showing (1) that the action being challenged could cause "injury-in-fact" to the person seeking to intervene II and (2) that such injury is arguably within the "zone of interests" protected by the Atomic Energy Act 2/ or 1/
"Abstract concerns" or a "mere academic Interest" in the matter which are not accompanied by some real Impact on a petitioner will
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not confer standing. See, Exxon Nuclear Company (Ten Applications for Low-Enriched Uranium Ex ports to EURATOM Member Nations),
CLl-77-24, 6 NRC 525, 531 (1977); Pebble Springs, (CLi-77-27, su-pra, 4 NRC at 613.
Rather, the asserted harm must have some pH-ticular effect on a petitioner, Ten Applications, CLi-77-24, supra, and a petitioner must have some direct stake in the outcome of the proceeding.
See, Allied-Cenera! Nuclear Services (Barnwell Fuel Receiving and ST5 rage Station), A LA B-32 8, 3 NRC 420, 422 (1976).
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42 U.S.C. 5 2011 et sea.
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the National Environmental Policy Act. SI id.
See also, Warth v. Seldin, 422 U.S.
490 (1975);
Sierra Club v. Morton, 405 U.S.
727 (1972);
Association of Data Processina Service Organizations v. Camp, 397 U.S.
150, 153 (1970).
2.
The "Aspect" Reautrements of 10 C.F.R. 6 2.714 in addition to demonstrating "interest," a petitioner must set forth "the specific aspect or aspects of the subject matter of the proceed-Ing as to which petitioner wishes to intervene."
10 C.F.R. 9 2.714(a)(2). S There is little guidance in NRC case law concerning the meaning of "aspect" as the term is used in 10 C.F.R. 9 2.714; how-ever, a petitioner may satisfy this requirement by identifying general potential potential effects of the licensing action or areas of concern which are within the scope of matters that may be considered in the 1
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42 U.S.C. 6 4321 et sea.
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10 C.F.R. 9 2.714 also requires the petitioner to file "... a sup-I
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plement to his petition to intervene which must include a list of the contentions which petitioner seeks to have litigated in the matter, 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 whicS satisfles the requirements of this paragraph t
l with respect to at least one contention will not be permitted to par-l ticipate as a party."
The NRC staff will respond to the contentions set forth in the supplement after its receipt.
Accordingly, nothing i
said here by the Staff regarding the petition's "aspects" is intended I
to apply in any way to satisfaction of the 10 C.F.R. 5 2.714 conten-tion requirements.
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- _ _ _ _ _ _ _ _ _ proceeding. 5 See, Virginia Electric Power Co.
(North Anna Power Station, Units 1 and 2), ALAB-146, 6 AEC 631, 633 (1973).
B.
The City of Berkeley's Petition 1.
Interest and injury The City states that its "interest in this matter stems directly from its responsibility under law for the overall health and safety of its 108,000 residents and further from the Licensee's stated intention to de-pend on the City's emergency services in the event of any problems aris-ing from the proposed decommissioning." Petition at 1.
Furthermore, the City argues that since the reactor and "all the activities attendant to the proposed decommissioning are located entirely within the City gives the City the most concrete standing of any potential intervenor." M.
The Staff believes that the City hes adequately set forth its interest and has shown how its interest might be affected by the outcome of the proceeding.
Accordingly, the City has made the showing neces-sary to a finding that it has standing to intervene. 5 2.
Specific Aspects of the Subject Matter of the Proceeding The City has identified a number of aspects on which it wishes to intervene.
At least one of u.
aspects, that in connection withi the proposed change of facility license there is no emergency plan which 5/
The subject matter of the proceeding for purposes of identification of
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"aspects" relates to the question of public health and safety of the proposes action (issuance of the order).
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Although the Petition was flied pursuant "to the Commission's Rules of Practice,10 C.F.R. 6 2.206(a) and 2.714" (Petition at 1), refer-ence is also made to 10 C.F.R. 6 2.715(c) as justification for its (FOOTNOTE CONTINUED ON NEXT PAGE)
. takes into consideration the potential consequences of an accident (Peti-tion at 2), is within the scope of the notice and, thus, of any proceeding that might be conducted pursuant to that notice.
Accordingly, the City has properly identified at lease one aspect on which it wishes to participate.
IV.
CONCLUSION For the reasons discussed above, the Commission should find that the City has established Its standing to intervene and has identified at least one aspect of the proposed amendment request in which it is interested.
Respec t ful ly sutml t ted, f
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J 'se Rut to ti ssistant GeneraliCounsel Dated at Rockville, Maryland this 2nd day of May,1988 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) participation in the proceeding.
Id.
While 9 2.715(c) provides for participation in a proceeding by a municipality, since the City seeks to participate pursuant to 10 C.F.R. 6 2.714, and has met the inter-est and standing requirements of that section, the Staff will not ad-l dress the appropr'W.1ess of the City's participation pursuant to 10 C. F. R. 6 2.715ic,.
The City must still submit an acceptable con-l tention in order to obtain party status.
10 C. F. R. 6 2.714.
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UNITED STATES OF AMERICA g
NUCLEAR REGULATORY COMMISSION i
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BEFORE THE COYMISSION In the Matter of
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IINIVERSITY OF CALIFORNIA,
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Docket No. 50-224 BERKELEY
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CERTIFICATE OF SERVICE i
I hereby certify that copies of "NRC STAFF RESPONSE TO CITY OF BERKELEY'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 aster-Isk through deposit in the Nuclear Regulatory Commission's internal mall system, this 2nd day of May,1988:
Samuel J. Chilk Hal Cronkite, City Manager Office of the Secretary Martin Luther King, Jr.
U.S. Nuclear Regulatory Commission Civic Center Building Washington, D.C.
20555*
2180 Mllvia Street Berkeley, CA 94704 Atomic Safety and Licensing Adjudicatory File Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel Docket Washington, D.C.
20555*
U.S. Nuclear Regulatory Commission Washington, D.C.
20555*
Atomic Safety and Licensing Appeal Docketing and Service Section Board Panel Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555*
Washington, D.C.
20555*
Vr. Milton Gordon Office of the General Counsel University of California 590 University Hall Derkeley, CA 94720
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De@)dty ssistant GeneralICounsel i
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