ML20207D027
| ML20207D027 | |
| 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 | |
| CON-#388-6889 OLA, NUDOCS 8808110026 | |
| Download: ML20207D027 (13) | |
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00CKETED USMC IJNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION To FEB 12 A11:15 BEFORE THE COMMISSION ,. , ,
i:% : -
In the Matter of )
. I PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-277 - Od d
) 50-278 (Peach Bottom Atomic Station )
Units 2 and 3) )
NRC STAFF RESPONSE TO COVVONWEALTH OF PENNSYt.VANIA'S PETITION TO INTERVENE AND REOllEST FOR HEARING Ann P. Hodgdon Counsel for NRC Staff n Gruary 11, 1988 8808110026 880211 PDR ADOCK 05000277 q
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 COMMONWEALTH OF PENNSYl.VANIA'S PETITION TO INTERVENE AND REOllEST FOR HEARING Ann P. Hodgdon Counsel for NRC Staff February 11, 1988
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 COMVONWEALTH OF PENNSYLVANIA'S PETITION TO INTERVENE AND REOUEST 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-nation. 52 Fed. Reg. 48,593. The proposed amendments would modify Section 6 of the facility Technical Specifications to reflect a new corporate and a new plant Staff organizational structure, a revised composition of the Plant Operations Review Committee and seve'ral administrative changes in accordance with the Licensee's app!! cation dated November 19, 198'.
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.
On January 22, 1986, the Commonwealth of Pennsylvania filed a "Pe-tition to Intervene, Request for Hearing and Comments Opposino No Sig-nificant Hazards Consideration."
N L !S As discussed- be!cw, the NRC staff believes that the Commonwealth has set forth its interest and has identified at. least one aspect of-the
, proceeding on which it wt,'hos to participate. 10 C.F. R. 5 2.714(a)(2) .
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- Therefore, in the Staff's view, sne Commonwealth has satisfied the stan-dards for intervention and should be granted party status 'after it has submitted a contentien found to be admissible. 10 C.F.R. I 2.714(b).
- 11. BACKGROUND The Federal f,egister. notice of consideration of issuance of amend-ment sets forth the background 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 a
- by the NRC on March 31, 1987, which required the plant to be shut down because of, among 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 6 of the Peach Bottom license. The notice states that the waiver letter permits implementation of the proposed amendments on an interim basis pending completion of consideration of the amendment appilcation.
lil. DISCUSSION A. The Standards for Intervention
- 1. _
The "Interest" Requirements 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 thtt:
In any proceeding under [the] 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. 5 2.714(a)(2), requires that a petition to intervene in a Commission pro-ceeding set forth with particularity: l (1) the interest of the petitioner in the proceeotng; (2) how that interest may be affected by the results of the proceeding; and i (3) the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to 1
Intervene.
! In order for intervention to be granted, the petition must be founei to satisfy these standards. 10 C.F.R. s 2.714(d). '
In determining whether the requisite interest prescribed by teth 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 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 1
4-person seeking to intervene II and (2) that such injury is arguably within the "zone of interests" protected by the Atomic Energy Act SI or the National Environmental Policy Act. 3I -
ld. See also, Warth 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" Requirements of 10 C.F.R.12.714 in addition to demonstrating "Interest," a petitioner rnust 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.
I 2.714(a)(2). S 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, Ex;:on Nuclear Company (Ten Applications for Low-Enriched Uranlura Exports to E:URATOM Member Nations),
CLl-77-24, 6 NRC 525, 531 (1977); Pebble Sprinas, (CLl-77-27, su-pra, 4 NRC at 613. Rather, the asserted harm must have some par-ticular effect on a petitioner, Ten Applications. CLi-77-24, supra, and a petitionar must have sorre direct stake in the outcome of the proceeding . See. Allied-General Nuclear Services (Rarnwell Fuel Receivino and 5torage Station), A LA B-3 2 8, 3 NRC 420, 422 (1976).
2/ 42 U . S . C . 1 2011 et s,eg. e 3/ 42 U.S.C. 6 4321 et seq.
-4/ 10 C.F.R. 5 2.71u also requires the petitioner to file ". . . a sup-piement to his petition to intervene which must include a list of the contentlens which petitioner seeks to have iltigated 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 which satisfies the requirements of this paragraph with respect to at least one contention will not be permitted to par-ticipato as a party." The NRC staff will respond to the contentions set forth in the supplement after its receipt. Accordingly, riothing 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.12.714 conten-tion requirements.
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the meaning of "aspect" as the term is used in 10 C.F.R. 6 2.714; how-ever, a petitioner may satisfy this requirement by identifying general potential' effects of the licensing action or areas of concern which are within the scope of matters that may be considered in the proceeding. 5,/
See, Virginia Electric Power Co. (North Anna Power Station, Units 1 and 2), ALAB-146, 6 AEC 631, 633 (1973).
B. The Commonwealth of Pennsvivania's Petition 1 Interest and injury Pegarding its interest, the Commonwealth states that, as parens patriae, its interests include "protecting the health, safety and property of every person within its boundaries. Because . . . the proposed 11-conse amendments represent PECO's response to the 'Immediate threat to the public health and safety' caused by PECO's management failure, the effect on Pennsylvania's public health and safety will turn on the adequa-cy of the proposed changes, if those changes are inadequate, they will affect the Commonwea!th's interests, and the possibility that they may be inadenuate satisfles the statutory requirement for intervention." Petition at 7.
The Staff believes that the Commonwealth has adequately set forth
- its interest and has shown how its interest might be affected by the out-come of the proceeding. Accordingly, the Commonwealth has made the show!ng necessary to a finding that it has standing to Intervene.
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5/ The subject matter of the proceeding for purposes of identification of "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)
- 2. Specific Aspects of the Subject Matter of the Proceeding
- The Commonwealth has identified a number of aspects on which 1
, 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 within 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 wnich 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 heyond the scope of this proceeding.
- 1. Restart The Commonwealth states in its petition that it opposes 7.ny 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 ," sube atted (FOOTNOTE CONTINUED FROM PREVIOUS PACE) dett:rmination made by the Commission staff concerning whether or not the proposed action involves a "significant hazards considera-tion . " See, 5148 Fed. Reg. 7747 (March 6,1986).
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r 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 4-5. The Commonwealth also states that on December 2, 1987, it petitioned the Commission to hold a hearing to consider safety problems before authorizing restart. Petition at 5. The Commonwealth also notes the Commission's temporary walver 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-sponds does not address the authorization of restart; it deals with au-thorization of changes to corporate and plant staff orgrnizational structure. As Intervention is limited to the scope of the notice (See, North Anna, 6 AEC at 633, supg), the scope of any hearing held as a result of the Commonwea!th'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. 5 2.206 requesting that a hearing be held prior to the 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 shutdown order of March 31, 1987, was mistaken. Petition at 6. Whatever may be the merits of this argu-ment, the present posture of the matter is that the Commission has dented
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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 Feaeral 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'.; discussion of this pro-posed determination is styled a "comment" and it will be considered by
- the Staff in reaching its finLi determination regarding no significant haz-ards consideration. A no significant hazards consideretion~ determination is a procedural determination stemming from the "Sholly" amendments to 6189a of the Atomic Energy Act, 42 U.S.C. 6 2239(a). After the NRC staff or the Commission has made such a determination, it may make ef-i 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:
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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.
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10 C.F.R. 6 50.58(b)(6).
1 L The issue of whether the proposed amendment does or does not involve a significarJ: hazards consideration is not litigable in any hearing that might be held on the proposed amendment because, as the Commis-slon has observed, the finding is a procedural device whose only purpose l
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is to determine the timirtg of the hearing (before or after issuance of the amendment) . Pacific Gas S Electric Co. (Diablo Canyon Nuclear Power
. Plant, Units 1 and 2), CLI-86-12, 24 NRC 1, ,6 n.3 (1986), reversed in part on other grounds, San Luis Obispo _ Mothers for Peace v. U.S. Nuc-lear Regulatory Commission, 79'9 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.
Respectfully sutmitted, t% ,
DC 47 6 Ann P. Hodgdon CounseI for tFC Staf f Da ted a t Rockvi l le, Ma ryland t.his 11 th day of February,1988 o
00CKEiE0 U5NFC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,88 FEB 12 A11:15 BEFORE TiiE COMMISSION
. OFFICE N 5ECM.Mriv 00CKEilNG & S[iMCl:
.' in the Matter of i BRANCH
)
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 PEN NSY LVANI A'S PETITION TO INTERVENE AND RECUEST FOR HEARING" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 11th day of February,1988:
Samuel J. Chilk George C. Freeman, Jr. , Esq.
Office of the Secretary Donald P. Irwin, Eso.
U.S. Nuclear Regulatory Commiss;on Hunton & Williams Washington, D.C. 20555* 707 East Main Street P.O. Box 1535 Docketing and Service Section Richmond, Virginia 23212 Officq of the Secretary U.S. Nuclear Regt'latory Commission Wi!Ilam T. Coleman, Esq.
Washington, D.C. 20555* John H. Beisner, Esq.
O'Melveny S Myers Atomic Safety and Licensing 555 - 13th Street, N.W.
Board Panel Washington, D.C. 20004
. U.S. Nuclear Regulatory Commission
, . Washington, D.C. 20555* Timothy D. Searchinger, Esq.
Richard P. Mather, Esq.
Atomic Safety and Licensing John R. McKinstry, Esq.
Appeal Board Panel 505 Executive House U.S. Nuclear Regulatory Commission P.O. Box 2357
( Washington, D.C. 20555" Harrisburg, PA 17120 t
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E. G. Bauer, Jr. , Senior Vice President and General Counsel Philadelphia Electric Company 2301 Market Street
. Philadelphia, Pennsylvania 19101 Morey M. Myers, ' Esq.
General Counsel Commonwealth of Pennsylvania Office of General Counsel P.O. Box 11775 Harrisburg, Pennsylvania 17108 Jay Gutierrez Regiona; Counsel USN RC, ' Region 1 475 Allendale Road King of Prussia, PA 19406*
i ' t LA,0 QC CA CNt. J Xn#n 'P. Hodgdon Counsel for NRC Staff {-
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