ML20216D364
| ML20216D364 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 06/16/1987 |
| From: | Robert Weisman NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20216D212 | List: |
| References | |
| 87-550-03-LA, 87-550-3-LA, OLA, NUDOCS 8706300510 | |
| Download: ML20216D364 (15) | |
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.UNITEIT STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC-SAFETY AND LICENSING BOARD in the Matter of
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PHILADELPHIA ELECTRIC COMPANY )
Docket No. 50-352-OLA
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(TS lodine)
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(Limerick Generating Station.
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(ASLBP No. 87-550403-LA) l Unit 1).
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k NRC STAFF'S RESPONSE TO LICENSEE'S j
-ANSWER IN OPPOSITION TO REQUEST FOR HEARING AND' LEAVE'TO INTERVENE BY AIR AND WATER POLLUTION PATROL 1
- 1. INTRODUCTION In this license amendment proceeding, Philadelphia Electric Company (Licensee) applied to the Nuclear Regulatory Commission (NRC or Commis -
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.q sion) to amend the technical specifications (TS) for its Limerick Generating j
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Station, Unit 1.
However, before the NRC published its notice of consider-
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i ation of the amendment in the Federal Register pursuant to.10 C.F.R.
J 9 2.105, 1 the Air and Water Pollution ' Patrol (AWPP) 2_/.- and J Mr. - Robert
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Anthony ( Anthony) filed petitions to intervene and. requests for a hearing on the amendment with the Office of the Secretary (Secretary). The Secretary, rather than. rejecting or explicitly accepting AWPP's' and Anthony's (Peti-j 1/
10 C.F.R. 6 2.105(a)(4)(l) (1987).
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Mr. Frank R. Romano asserts that he. represents petitioner Air and Water Pollution Patrol. Mr. Romano 'makes no effort to meet the Com--
mission's requirement. to establish his eligibility or authority to act as AWPP's representative.-
See 10 C.F.R. 6 2.713(b) (1987). ' Mr.
Romano's participation in other - proceedings regarding the Limerick facility does not establish his standing and ' eligibility to. represent-AWPP in the instant proceeding.
For convenience, the Staff refers.
to 4Mr. Romano and the Air and Water Pollution ~ Patrol as "AWPP."
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tioners) petitions, informed them that they had filed their ~ petitions prema-turely, but that the Secret 5ry; would refer their petitions to the Chairman of the Atomic Safety and 'Lic6r. sing Board Panel (the Panel) after the Staff had Issued the appropriate ' notics After the NRC published the appropriate l
notice, the Secretary referred Petitioners' requests for intervention to the Chairman of the Panel, who ' referred them to this Atornic Safety and Licens-ing Board (Licensing Board) fo'r appropriate consideration.
The Licensee objects to this procedure and contends that ths Licensing Board should deny j
the petitions because the Licensing Board lacks jurisdiction to consider the matter and because Petitioners lack standing to' participate in the proceed-Ing.
Pursuant to the Licensing Board's order dated May 22, 1987, the NRC s'taff will address in this pleading whether the Secretary exceeded his au-thority by holding Petitioners' pleadings pending the Staff's publication of the appropriate notice in the Federal Register and then forwarding the
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pleadings to the' Chairman of the Panel for further action.
For_the reasons set forth below, the Societgtry acted within nis-discretion to control the Commission's docket and did not exceed his authority in dealing with Peti-tioners' pleadings as lie 'did in this proceeding.
II. ISSUE l
The Licensing f3aard faces an issue of first impression jn this case:
Did the Secretary-abuse his discretion by (a) refusing to
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reject or accept AWPP's and Anthony's petitions when Peti-tioners submitted them; (b) holding AWPP's and Anthony's j
petitions until the Staff, issued notice of its consideration of the Licensee's proposed amendment; or ' (c) referring AWPP's and Anthony published -
s petitions to the Chairman of the Panel after the Staff the appropriate notice in the Federal Register?
Subsidiary to this question, the Staff will analyze the Sem, etary's authority under the pertinent regulations.
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1 Ill. -DACKGROUND-L
- i On August 19, 1986,. the Licensee applied to the NRC for an amendment'-
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Jof the TS for = lts Limerick Generating " St'ation, Unit '1 (Facility Operating-g
). kicense NPF-39).
In' its ' application,. the Licensee asked the NRC to amend
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w! glthe Limerick TS governing plant operation, given particular concentrations of s.
A rddiolodine in -the plant's reactori coolant,, byl changing those TS to, match n,w b
_,model TS for' radiolodine in reactor coolan.t that the NRC proposed in Generic s
-s j 15kter No._85-19,; which the NRC issued on September 27, 1985.
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[ lonl August 25, 1986, before the ' NRC ' published the amendment request -
j in the Federal Registd, AWPP filed its petition for' leave:to intervens and its motion forL ~ a hearing on the' - Licensee's ' proposed amendment.
'On.
j September 4, 1986, ~ Anthony filed a similar petition.
The" Secretary, on q
r August. 28, 1986, and September 10, 1986, replied - to AWPP and Anthony, respectively.,
The Secretary informed the Petitioners-that they had filed
, prematurely, but that the Commission would. not act on their requests until the St#ffapublished its notice of consideration of the-prop :,ed amendment.
in his replies.to the : Petitioners, ' the. Secretary also' stated that helwould j
p forward their: petitions to the Chairman 'of the Panel' wheni the Staff Issted the ap'propriate notice.
On March 12, 1987, the ' Staff pu'blished._a notice -in-the~ Federal Register 1
that stated that the Staff proposed to find that.the Licensee's proposed '
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'J amendment involved no significant hazards considerations. 3_/
The f notice y
atated that parties. interested in the amendment had. thirty fdays.to file' a~
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s j equest ; for a. hearing.
The notice stated -explicitly that the. thirty. day ' time'.
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52 Fed.' Reg. 7,675' at"7,693' (1987)'.
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Y On April 29, 1987, the Secretary j
limit expired on April 13 1987.
J referred AWPP's request for a hearing to the Chairman 'of the Panel.
On May 7,1907, the Chairman of the Panel designated this Licensing Board to
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preside over this matter and since that date, the Licensee has objected to
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p the procedural and le. gal sufficiency of AWPP's requests..
On May 20,1987, the Secretary referred Anthony's request for a ' hearing to the Licensing
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Board. The Licensec argues bgainst Anthony's petition for the same reasons it contests AWPP's petition.
On May 22,1967, the Licensing Board directed,the' Staff to reply to the procedural argument in the Licensee's response to AWPP's petition l dated May 20,1987.
The Licensee argues that the Secretary lacked the authority to hold Petitioners' requests and refer them to. the Chairman of the Panel after the Staff issued the appropriate notice.
in this brief, the Staff re -
sponds to that argument. 5,/
IV.
DISCUSSION No regulation specifically limits the Secretary's authority to manage the Commission's docket.
The regulations do not support the Licensee's argu-ment to the contrary.
The regulations that empower the Secretary to control the Commission's docket commit that power to the Secretary's discretion.
Given the facts of this proceeding, the Secretary properly exercised his discretion to manage the Commission's docket by acting as he did in this 4/
id at 7,675.
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The Licensee also argued that petitioners lacked standing to inter-vene.
At the Licensing Board's direction, the. Staff does not ad-dress that argument in this pleading. -The. Staff will respond to the Licensee's standing argument only if the Licensing Board so directs.
matter.
The Secretary made no error by holding the Petitioners' requests and referring them to the Chairman of the Panei after the Staff issued the notice appropriate in this case.
A.
The Secretary's Authority
.The Commission's Statement of Organization and General information O i
defines the Secretary's.
In particular,
"[t]he Office of the duties.
Secretary...[1]ssues decisions, orders, and ruitngs of the Commission, and maintains the official' docket of the Commission [. ]" U This section, however, does not state specifically what powers the Secretary can use to
" maintain the official docket of the Commission [.]"
The regulations define the Secretary's general powers in question in this case in 59 2.702 and 2.709. 8_/ Section 2.702 provides:
The Secretary will maintain a docket for each proceeding sub-Ject to this part, commencing with the issuance of the initial notice of hearing, notice of consideration of issuance of faclil-ty operating license or other proposed action specified in 6 2.105, or order to show cause.
The Secretary will maintain all files and records, including the transcripts of testimony and exhibits and all ers, correspondence, decisions and orders filed or issued.
Although 9 '2.702 does not define how the Secretary accepts or rejects corre-spondence, it does demonstrate that the Commission has delegated to the Secretary responsibility to ' etermine initially. how to deal with correspon-d dence, including AWPP's and Anthony's petitions.
Section 2.702 states that 1
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10 C.F.R Part 1 (1987).
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10 C.F.R. 6 1.33 (1987).
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10 C.F.R. 55 2.702, 2.709 (1987).
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10 C.F. R. 6 2.702 (1987).
The Staff notes that the Licensee's pro-I posed-amendment is a " proposed action specified in 5 2.105" covered by 6 2.702.
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the Secretary "will maintain a docket for each proceeding subject to this part, commencing with the r.otice of hearing... or other proposed action specified in 6 2.105[.]" b This statement commands the Secretary to maintain a docket ("[t]he Secretary will maintain") for the proceedings sub-Ject to' 10 C.F.R.' Part 2 and to start maintaining that docket upon the ap-propriate notice.
Section 2.702 admits of two possible interpretations relevant to the present Issue.
First, 6 2.702 may direct the Secretary to maintain a docket for a proceeding subject to Part 2 beginning no later than pubilcation of the appropriate notice.
Under this interpretation, the Secretary could maintain the docket for a proceeding earlier than the publication. of an appropriate notice, in his discretion. Accordingly, the regulation would allow the Secre-tary's actions in the instant proceeding.
The second interpretation. of 4
6 2.702 would require the Secretary to begin maintaining a docket for a pro-ceeding when the NRC published the appropriate notice.
Under this inter-pretation, the Secretary would have no authority to maintain a docket before the ~ NRC issued the appropriate notice ' for a proceeding.
Therefore, the Secretary would be powerless to accept a document for filing before the Staff.
Issued the appropriate notice, in this case, however, the Staff need not i"
address whether the Secretary accepted a document for filing too early be-cause the Secretary did not accept or reject AWPP's and Anthony's petitions for filing before the NRC issued the appropriate notice.
Rather, the Secre-tary held the petitions until the NRC issued the ' appropriate notice.
More-
---10/ Because the. Licensee proposed one of the "other actions specified in :
6-2.105" for which the regulations require the NRC to issue a notice of its proposed decision, the Staff will refer to the notice the NRC '
Issued in this case as "the appropriate notice."
, 0,
, over',
under the second interpretation, 6.2.702 does not require the Secretary to reject a document for filing if no docket yet exists for a pro-ceeding and does not preclude him from holding that document until he has the authority to accept it.
For the Secretary's authority to ~ reject a document for filing, we must examine 6 2.709. U Section 2.709 authorizes the Secretary to accept or reject docements for
- filing. Section 2.709 reads:
A document which falls to conform to the [ formal] require-ments of 6 2.708 may be refused acceptance.for filing and may be returned witTi an indication of the reason for nonac-shall not be entered on the Commission's docket. if for filing ceptance.
Any matter so tendered but not'accepte Section 2.709 states.that the Secretary may refuse to accept a document for filing.
The regulation gives the Secretary the option of refusing to ac-cept a document' for filing. Section 2.709 vests discretion to accept or reject documents for filing in the Secretary and does not require him to return every document that fails to satisfy the formal requirements of 6 2.708. The regulation further states that "any matter so tendered but not accepted for filing shall not be entered on the Commission's docket." E Again, the regulation clearly precludes the Secretary from entering a document on th'e Commission's docket if the Secretary, in his discretion, rejects a document
-11/ Section 2.709 applies only to the formal requirements, listed in -
6 2.708, for filing a document.' The Licensee does not point _ out any.
other requirements the Petitioners' documents must meet (the Licens-ing - Board had delayed inquiry into those of 6 2.7111), and the Staff believes that, for the purposes of this. Inquiry, Petitioners' docu---
ments meet.the appropriate requirements except for those of 6. 2.708.
For further discussion of the pleading requirements Petitioners must satisfy, see the text accompanying notes 15 through 20.
3/ 10 C.F.R. 5 2.709 (1987) (emphasis added).
13/ Id.
C.
i for filing.
If the Secretary rejects a document for. filing, 6 2.709 is manda-tory and precludes the Secretary from entering the document on the Commis-sion's docket. EI If the Secretary does not reject a document for filing, 9 2.709 does not require him to enter the document on the Commission's docket, nor does it preclude him from so entering the document in the ap-2 propriate circumstances. This provision is consistent with the idea that the Secretary may hold a document and not reject it or enter it on the Commis-ston's docket.
Under either interpretation of 6 2.702, the Secretary has the authority to hold a document for filing until the NRC issues the appropriate notice.
Moreover, 5 2.709 does not require the Secretary to reject a docu-ment rather than hold it.
In this proceeding, the Secretary did not violate the provisions of f 2.702 or 5 2.709 because the Secretary did not accept the Petitioners' documents for filing when he received them.
Rather, the I
Secretary held those documents until the Staff issued the appropriate notice and then accepted them for filing.
Under the circumstances before this Li-censing Board the Secretary had discretion to accept or reject Petitioners' documents and, after deciding not to reject the petitions, did not abuse his discretion by holding them until the Staff issued the appropriate notice and then forwarding them to the Chairman of the Panel.
B.
The Licensee's Position The Licensee cites 6 2.772(l) El and argues that this subsection restricts the Secretary's discretion in accepting or rejecting documents for
-14/ Section 2.709 does not require the Secretary to reject documents for filing even if he doesn't have the power to accept them. The Secre-tary, in his discretion, may either reject the documents or hold them until he does have the power to accept them (when the NRC publish-es the appropriate notice).
15/ 10 C.F.R. 5 2.772(1) (1987).
filing. EI Section 2.772(1) states, "[T]he Secretary... [is ] authorized to...[d]eny a request for [a} hearing [s), where the request falls to comply with the Commission's pleading requirements set forth in this part, and falls to set forth an arguable basis for further proceedings [.]" EI The Staff has examined "the pleading requirements set forth in this part," in 6 2.714 and in 6 2.708, and even if Petitioners' documents contain defects that.these j
j sections define, the Staff contends that 6 2.772(l) does not require the Sec-1 J
El Section 2.714 contains the retary to reject Petitioners' document.
pleading requirements for intervention, including timeliness, standing or Interest, and specificity or aspect requirements. E Wh!!e the Secretary
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has authority to dispose of petitions defective in these respects, 6 2.772(l)
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does not require him to do so, and, in practice, the Secretary usually leaves such determinations to the Licensing Board.
The Staff notes that the Li-censee alleges that Petitioners lack standing, but the Licensing Board has 1
deferred decision on this issue.
The Licensee alleges no other particular
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pleading defects in the documents. 2,0 /
The only defects that Petitioners' H/ Licensee's Answer in Opposition To Request For Hearing And Leave To intervene By Air And Water Pollution Patrol, at 10.
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10 C.F.R. 6 2.772(l) (1987).
18/ 10 C.F.R. S ' 2.714 (1987).
19/
id.
-20/ The Licensee does cite 10 C.F.R. 6 2.717 (1987), which defines the presiding officer's jurisdiction but does not define the Secretary's authority.
If the Licensee attacks the Licensing Board's jurisdiction to accept the petitions, the Staff believes the Licensee cannot sup-port such a position.
The Staff more reasonably interprets the Li-censee's citation of 6 2.717 in the context of the Licensee's argument concerning 6 2.772(1) against the authority of the Secretary.
The Staff has shown, however, that 6 2.772(l) authorizes the Secretary (FOOTNOTE CONTINUED ON NEXT PAGE)
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-to-1 pleadings might contain would be formal defects defined by 6 2.708.
As the Staff has already explained, the Secretary has discretion to accept docu-ments that do not conform to the requirements of 6 2.708.
Furthermore, 5 2.772(l) mercly empowers the Secretary to deny a request for a hearing from a person who tenders such a request that falls to satisfy the Commis-ston's pleading requirements.
Section 2.772(l) does not require the Secre-tary to deny such a request.
By vesting discretion in the Secretary to accept or deny a request for a hearing containing formal (6 2.708) defects, the Commission protects unsophisticated intervenors who may not be well I
versed in the intricacies of the Commission's pleading' requirements.
The Staff urges the Licensing Board to reject the Licensee's argument.
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C.
The Secretary's Exercise of Discretion The Secretary exercised his discretion by not rejecting AWPP's and ee Anthony's pleadings when he received them and by holding them and refer-ring them to the Chairman of the Panel after the Staff issued the appropriate notice.
The staff does not detect any abuse of discretion in the Secretary's action.
Accordingly, the Staff believes that the Licensee has not shown that the Secretary abused his discretion and contends that the Licensing Board should not reject M.PP's and Anthony's pleadings on this basis.
I (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) to deny requests for a hearing for failure to satisfy pleading re-quirements, in particular, the Staff considered the formal pleading requirements of 6 2.708.
Section 2.717, while defining the presiding officer's Jurisdiction in terms of the commencement of a proceeding, _,
contains no pleading requirements.
Section 2.714, which establishes the pleading requirements for intervention, require a prospective intervenor to request a hearing before c certain date, and not after any particular date.
See 10 C.F.R. 6 2.7111(a)(1) (1987).
D.
Prejudice to Petitioners If, notwithstanding the arguments made above, the Licensing Board
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i decides to reject Petitioners' pleadings because the Secretary exceeded his
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authority by holding their petitions until the Staff published the appropriate notice, the Petitioners will be prejudiced because they relied on the Secre-
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tary's determination and will lose their rights to have the Licensing Board consider their petitions.
The instant facts do not justify such prejudice.
On the contrary, the Secretary's agent who had authority to respond to Petitioners' requests told Petitioners how the Secretary would process their j
documents and, in fact, the Secretary performed as promised.
Clearly, if J
J the Secretary had rejected Petitioner's documents, they could have filed pe-titions during the period set out by the Staff's Federal Register notice for this amendment and preserved their hearing rights.
Now, however, after 1
Petitioners relled on the Secretary's representation, it is suggested that the Licensing Board reject tt eir petitions.
In a situation similar to that present-ed here, the Court of Appeals for the Ninth Circuit stated, "[t]o say to
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these [ Petitioners),
'The joke is on you.
You shouldn't have trusted us,'
is hardly worthy of our great government." b
--21/
Brandt v. Hickel, 427 F.d 53, 57 (9th Cir.1970).
This case, while not on all fours with the instant controversy, suggests that the Li-censing Board might violate due process requirements if it denied Petitioners a hearing on the basis of the Secretary's actions.
In Brandt, Brandt submitted a non-competitive oil and gas lease offer to the Bureau of Land Management's (Bureau) Los Angeles Office.
The Los Angeles Office held Brandt's offer but allowed Brandt to file a new offer within thirty days to cure supposed defects in the first offer without losing priority.
If Brandt did not file an amended offer, the Bureau would reject Brandt's initial offer.
Brandt did file an amended offer, but one Hansen had filed an offer for the same lease in the interim.
No statute authorized the Bureau to promise Brandt no loss of priority and Hansen challenged the Bureau's deci-slon to award the lease to. Brandt.
Brandt resembles this proceed-Ing because the Secretary of the interior deprived an individual of a (FOOTNOTE CONTINUED ON NEXT PAGE)
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Furthermore, the Secretary served copies of his replies to Petitioners on the Licensee.
If the Licensee had sucessfully objected to the procedure the Secretary followed in this proceeding when the Licensee received the copies of the Secretary's replies to Petitioners, then Petitioners could have filed their pleadings during the period set out in the Staff's notice.
The Petitioners in this case reasonably relied on a government official who had the authority to represent the Secretary.
The Staff contends that the equi-ties in this proceeding, on balance, favor the acceptance 'of Petitioners' pleading for consideration. 2,2/
V. CONCLUSION The regulations commit control of the Commission's docket to the Secre-tary's discretion.
No regulation prohibits the Secretary from exercising his discretion by not rejecting a prematurely filed pleading, holding it until the appropriate time and then referring it to the Chairman of the Atomic Safety and Licensing Board Panel, or other entity.
The Secrete.-v did not abuse (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) benefit (the oil and gas lease) based on the Bureau's promises to Brandt and because the Bureau held Brandt's document, rather than rejecting it outright.
-22/ It should be noted that Mr. Anthony, in his response to.the Licens-ee's brief, seems to imply that the Secretary will monitor the Federal Register for him and inform him of the progress on amend-ments for Limerick.
While the Secretary acted within his discretion, he did not thereby commit to perform this service for Mr. Anthony.
Because the law provides that publication in the Federal Register provides adequate notice of what an agency intends to do and starts the time running for persons to petition for intervention and request a. hearing, Anthony must look to the Federal Register for notice of,
amendments of interest to him, just like. any otiler person.
44 U.S.C. SS 1507,1508 (1982).10 C.F.R. 5 2.105 (1987).
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his discretion by proceeding as he did in this case.
Because the' regulations authorize the Secretary to manage the Commission's docket in his discretion, and because the Secretary did not _ abuse his discretion by managing the docket as he 'did in this case,' the Licensing Board should reject the Licens-ee's first argument against AWPP's and Anthony's requests for a
hearing. EI Respectfuily subnltted, 7Ghed f//. Wh Robert M..Weisman CounseI for bRC Staff '
Dated at Bethesda, Maryland this 16th day of June 1987 t
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-23/. The Staff implies no opinion on AWPP's or Anthony's standing',.nor.
on the merits of Petitioners' contentions, nor does' the Staff imply an '
opinion on the sufficiency of thoseLcontentions.. The Staff will an-swer those. questions later in this proceeding. only if the Licensing Board so directs.
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4 UNITED STATES OF AMERICA i'
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of
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1 PHILADELPHIA ELECTRIC COMPANY )
Docket No. 50-352-OLA j
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(TS lodine) 1 (Limerick Generating Station,
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Units 1 and 2)
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(ASLBP No. 87-550-03-LA)
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CERTIFICATE OF SERVICE
~1 hereby certify that copics "NRC STAFF RESPONSE TO LICENSEE'S ANSWER IN OPPOSITION TO REQUEST FOR HEARING AND LEAVE TO INTERVENE BY AIR AND WATER POLLUTION PATROL" in the above-captioned proceeding-have been served on the fo!!owing by deposit in the United States mall, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's mall system, this 23rd day of June,1987:
Sheldon J. Wolfe, Chairman Mr. Edward G. Bauer, Jr.
Administrative Judge Vice President S General Counsel Atomic Safety and Licensing Board Panel Philadelphia Electric Company U.S. Nuclear Regulatory Commission 2301 Market Street Washington, D.C.
20555*
Philadelphia, PA 19101 Peter A. Morris Troy B. Conner, Jr., Esq.
Administrative Judge Mark J..Wetterhahn, Esq.
Atomic Safety and Licensing Board Panel Conner and Wetterhahn -
U.S. Nuclear Regulatory Commission 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20555*
Washington, D.C.
20006 Richard F. Cole Mr. Frank R.- Romano Administrative Judge Chairman Atomic Safety and Licensing Board Panel Air and Water Pollution Patrol U.S. _ Nuclear Regulatory Commission 61 Forest Avenue-Washington, D.C.
20555*
Ambler, PA 19002 Robert L. Anthony '
Gene Kelly Friends of the Earth of the Senior Resident inspector Delaware Valley U.S. Nuclear Regulatory Commission-103 Vernon Lane, Box 186 P.O. Box 47 Moylan, PA 19065 Sanatoga, PA 19464 I
Atomic Safety and Licensing Jay Gutierrez Board Panel Regional Counsel
.U.S. Nuclear Regulatory Commission USNRC, Region. I Washington, D.C.
20555*
631 Park Avenue King of Prussia, PA 19406 Atomic Safety and Licensing Appeal
' Board Panel U.S. : Nuclear Regulatory Commission Washington, D.C.
20555*
Docketing, and Service Section -
' Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555*
%k mM5 Robert M. Weisman Counsel for NRC Staff
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