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Staff Reply to Licensee Answers to Petitioner Requests for Hearing & Motions to Intervene (Licensee Second Argument).* Air & Water Pollution Patrol & R Anthony Failed to Meet Stds for Intervention in Amend Proceedings.Aslb Denies Petition
	ML20235M175
Person / Time
Site:	Limerick
Issue date:	07/13/1987
From:	Vogler B, Robert Weisman; NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	; Atomic Safety and Licensing Board Panel
References
	CON-#387-3971, CON-#387-4030 87-550-03-LA, 87-550-3-LA, OLA, NUDOCS 8707170094
	Download: ML20235M175 (17)
	v • d • e

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( '87 JUL 15 P2 :01 l UNITED STATES OF AMERICA l: NUCLEAR REGULATORY COMMISSION crr u 3- ..

N BEFORE THE ' ATOMIC SAFETY AND LICENSING' BOARD Md l: In the Matter of )

. ~ ) Docket No. 50-352 " 8 d

' ' PHILADELPHIA ELECTRIC COMPANY )

(TS . lodine)

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(Limerick Generating Station, ) (ASLBP No. 87-550-03 :LA)

Units 1 and 2) )

i STAFF REPLY TO LICENSEE'S ANSWERS TO PETITIONERS' REQUESTS FOR A HEARING AND MOTIONS TO INTERVENE (LICENSEE'S' SECOND ARGUMENT)

1. INTRODUCTION On June 22, 1987, the Atomic Safety and Licensing Board (Licensing Board) issued a Memorandum and Order O in which it rejected the ae Philadelphia Electric Company's (Licensee) argument that the petitions submitted by .the Air and Water Pollution Patrol (AWPP) and Mr. Robert Anthony (Anthony) in connection with an amendment request filed by the Philadelphia Electric Company were not valid requests for a hearing, in the Memorandum and Order and in a subsequent Order dated June 25, 1987, 2,/. the Licensing Board directed the Staff to reply to the Licensee's Argument 11 as set forth in its Answers in Opposition to AWPP's and Anthony's (Petitioners) petitions. The Licensing Board specifically instructed the Staff to identify as new any argument in opposition to

-1/ Philadelphia Electric Co. (Limerick Generating Station, Unit 1), No. '

50-352-OLA (T5 lodine), slip op at 5 (June 221987) (Memorandum and Order).

2/ Philadelphia Electric Co. (Limerick Generating Station, Unit 1),

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No. 50-352-OLA (T5 lodine) , slip op. (June 25, 1987) (Order) .

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ADOCK 05000352 PDR ]$ .

1 Petitioners that the Licensee has not raised. 3_/ The Staff hereby replies to the Licensee's answer.

11. BACKGROUND On September 27, 1985, the NRC issued Generic Letter No. 85-19, which proposed model Technical Specifications (TS) to govern concentrations of radiolodine in plant's reactor coolant for boiling water reactor operations. On August 19, 1986, in response to Generic Letter 85-19, the Licensee applied to the NRC for an amendment of the TS for its Limerick Generating Station, Unit 1 (Facliity Operating License N PF-39 ) , in its application, the Licensee asked the NRC to amend the Limerick TS to match the proposed TS's for radiolodine in reactor coolant included in Generic Letter No. 85-19.

On August 25, 1986, prior to the publication by the Staff of any notice of its intent to issue the requested amendment or any finding with regard to the "no significant hazards consideration," AWPP filed its petition for leave to intervene and its motion for a hearing on the Licensee's proposed amendment. -

" AWPP's petition states, "AWPP has indicated its concerns re our personal health and property owned 10 miles from the Limerick nuclear plant with possible health and financial loss, including threat to the public. AWPP (Romano) is an intervenor in this licensing process." 5/ Referencing the Licensee's actions in an unrelated 4

3/ Id.

-4/ " AW PP's Petition For Hearing And Leave To Intervene Opposing Applicant's Application For Amendment Of Facility Operating License NPF-39" (Sept. 4,1986) (hereafter, "AWPP Petition").

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l 5/ id.

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I and now concluded proceeding, AWPP also states that "PECO's record, therefore, does not merit an ammendment [ sic][.}" 6/ AWPP makes no other effort to establish standing.

On September 4, 1986, also prior to the Staff publication of any )

notice, Anthony filed a petition to intervene and a request for a hearing. lI in his petition, Anthony states that "We ... have served as an intervenor in ine licensing process. We are customers of PECo and live about 25 miles from the plant and have occasion to travel within its EPZ." 8_/ Anthony also alleges that because of "PECo's unreliable operation of the Limerick plant, we are in constant danger of an accident at the plant. . . . " EI On March 12, 1987, the Staff published in the Federal Register ds intent to issue the requested amendment, provided an opportunity to request a hearing and made a proposed determination that the requested amendment involves no significant hazards consideration. EI On May 20 and 22, 1987 the Licensee filed Answers in Opposition to Petitioners 6/ Id.

-7/ " Petition By R. L. Anthony To The Secretary For Leave To Intervene And For A Hearing On PECo's Application For An Amendment Of License N PF-39 Dated 8/19/86" (Aug. 25, 1986) .

(hereafter, " Anthony Petition"). I 8/ Id.

9/ id.

10/ 52 Fed. Reg. 7,675, 7,693 (March 12,1987).

. Intervention requests. Pursuant to the Board's Orders of June 22 and 25, 1987 the Staff hereby replies. UI lil. DISCUSSION A. The Standards for Intervention Section 189(a) of the Atomic Energy Act of 1954, as amended (the !

Act), EI provides that:

In any proceeding under [the] 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 proceeding, and shall admit any such person as a party to such proceeding.

Section 2.714(a)(2) of the Commission's Rules of Practice requires that a petition to intervene in a Commission proceeding set forth with particularity:

(1) the petitioner's interest in the proceeding; (2) how the results of the proceeding may affect the petitioner's interest; and, I

(3) the specific aspect or aspects of the proceeding's subject matter as t which the petitioner wishes to intervene.13/ o

)

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-11/ in its Order of June 25, 1987, the Licensing Board ordered the Staff to specify its new arguments. The Licensee's arguments closely resemble the Sta ff's arguments, but the Staff's and Licensee's _

arguments differ in some respects. For that reason, the Staff l identifies in footnotes its arguments that differ from the Licensee's.

As noted above, the Staff agrees with the Licensee's analysis of the organizational standing requirements. The Staff sees no need to )

elabordte on that analysis. The Staff believes that Petitioners did not demonstrate how the instant amendment would affect their respective interests and that these deficiencies are dispositive of each Petitioner's standing.

12/ 42 U.S.C. 6 2239(a) (1982).

13/ 10 C.F.R. 5 2.714(a)(2) (1987).

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In order to grant intervention, the Atomic Safety and Licens!,ng Board designated to rule on petitions to intervene and requests for a hearing must find that the petition satisfies these standards. El l The Commission has held that contemporaneous judicial concepts of standing control the Licensing Boa rd's determination of whether a Ipetitioner has established the requisite interest prescribed by 9189(a) of the Act and 6 2.714 of the Commission's Rules of Practice. E Thus the petitioner must show (1) that the action being challenged could cause

" injury-in-fact" to the person seeking to intervene and (2) that such injury is arguably within the " zone of interests" protected by the Act El or the National Environmental Policy Act. EI

" Abstract concerns" or a " mere academic Interest" in the matter which are not accompanied by some real impact on a petitioner will not

-14/ Atomic Safety and Licensing Boards may also, as a matter of discretion, grant petitions to intervene to some petitioners who are not entitled to intervention as a matter of right. The Licensing Boards may grant such intervention only if the petitioner can show that the Commission's specific criteria weigh in favor of discretionary intervention. See, Portland General Electric Co. (Pebble Springs Nuclear Plant, UETts 1 and 2), CLI-76-27, 4 N.R.C. 610, 616 (1976).

As described herein, neitner AWPP nor Anthony has satisfied the criteria set forth in 5 2.714, nor has either of them Indicated how either would help to create a sound record in this proceeding or otherwise merit discretionary intervention. Id. Therefore, the NRC staff will not discuss discretionary interventfoh further.

,1_5 5 / Portland General Electric Co. , 4 N.R.C. 610, 613-14 (1976).

16/ 42 U.S.C. 69 2011 et seq.

-17/ 42 U.S.C. 65 4321 et seq. Portland General Electric Co. , 4 NRC 610 at 613 (1976). set also, Warth v. Selden, 422 U.S. 490 (1975);

Sierra Club v. Morton, 405 U.S.150,153 (1970).

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confer standing. E Rather, the asserted harm must have some particular effect on a petitioner, EI and a petitioner must have some direct stake in the outcome of the proceeding. EI However, a petitioner who alleges an economic interest in the proceeding as a ratepayer does not allege a direct stake in the proceeding's outcome. EI An organization may gain standing to intervene based on injury ,to itself. E If the organization seeks standing on its own behalf, it must estabilsh that it will be injured and that the injury is not a generalized -

grievance shared in substantially equal measure by all or a large class of citizens. E On the 'other hand, an organization may establish standing through its members who have an interest that may be affected by the outcome of the proceeding. EI When an organization bases its standing on the interests of its members, the organization must identify one or more individual members by name and address whose interests may be affected and give some concrete indication that those members have authorized the organization to represent their interests in the

-18/ See, Transnuclear, Inc. (Ten Applications for Low-Enriched Uranium Eports to EURATOM Member Nations), CLi-77-24, 6 N.R.C. 525, 531 (1977).

19/ Transnuclear Inc. 6 N.R.C. at 531 (1977).

,20/ See, Allied-General Nuclear Services (Barnwell Fuel Receiving and EIorage Station), ALAB-328, 3 N.R.C. 420, 422 (1976). )

-21/ Portland General Electric Co., 4 N.R.C. at 614 (1976). An economic j interest as a ratepayer may establish a petitioner's standing in an l antitrust case. The instant case is not an antitrust proceeding, i R/ Edlow International Co. , C L l-76-6 , 3 N.R.C. 563, 572-74 (1976).

23/ Transnuclear, Inc. 6 N.R.C. at 531 (1977).

-24/ Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 N.R.C. 328, 330 (1976). i l

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proceeding. 2,5/ Furthermore, under 6 2.713 of the Commission's Rules of f

~i Practice, a " partnership, corporation or unincorporated association may be represented by a duly authorized member or officer, or by an attorney-at-law." 2_6/ Thus, where an organization is represented by one of its members, the member must demonstrate authorization by that

.' ' organization to represent it.

B. AWPP's Petition AWPPs petition falls to satisfy the requirements of 10 C.F.R. 6 2.714 for intervention because it does not establish standing for itself or Romano, set forth an appropriate interest and how' that interest may be affected by the requested amendment and, finally, it does not set forth the specific aspect or aspects of the requested amendment that it wishes to pursue.

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In order for AWPP to establish standing as an organization in this proceeding and to be Romano's representative, Romano himself must have standing to participate, since he is the only member referred to in the petition that AWPP seeks to represent. 2_7 / After considering AWPP's

-25/ Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station , Unit 1), A LA B-535 , 9 N.R.C. 377, 393-97 (1979); Public Service Electric and Gas Co. (Salem Nuclear Generating Station ,

Units 1 and 2), ALAB 136, 6 A.E.C. 487, 488-89 (1973); Duquesnc Light Co. (Beaver Valley Power Station, Unit No.1), ALAB-109, 6 A.E.C. 243, 244 at n.2 (1973).

26/ 10 C.F.R. 6 2.713 (b) (1987) (emphasis added).

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27/ The Staff notes that AWPP makes no allegation of any interest of AWPP as an organization on which it could base its standing independent of its members' interests. The Staff notes further that it agrees with the Licensee's argument that AWPP has failed to demonstrate the formal requirements for standing as an organization, as recited in section (A) of the Staff's discussion, supra, and that (FOOTNOTE CONTINUED ON NEXT PAGE)

petition and the applicable law , the Staff concludes that Romano and AWPP lack the requisite standing to intervene in this license amendment proceeding. 28/

AWPP's petition lacks the particularity that the regulations require. b With respect to its interest and how that interest may be

'affected, AWPP only states that its members (as indicated above Romano is the only member referred to in the petition) own property ten miles from the Limerick plant. 30/ However, this statement in and of itself !

does not provide the particularity as to AWPP's interest in the requested l amendment required by the Commission's Rules. b AWPP's bare (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) i Romano has not shown that he is authorized to represent AWPP.

See, text at notes 23-28, supra; 10 C.F.R. 5 2.713(b) (1987). The 5tiiff t will not repeat the Licensee's analysis of this issue. ,

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-28/ Hereinafter the Staff will refer to AWPP and, its only referred to l member, Romano as AWPP. l 29/ 10 C.F.R. 6 2.714(a)(2) (1987).

30/ AWPP Petition at 1.

-31/ As the Licensee explains in its brief, proximity to a reactor does not l necessarily establish standing to intervene in an amendment '

proceeding, even though such proximity might establish standing in an operating license proceeding. Licensee's First Answer at 19-21.

The case the Licensee cites for this proposition is Boston Edison Co.

(Pilgrim Nuclear Power Station) , LB P-85-24, 22 N.R.C. 97, 99 (1985), aff'd, ALAB-816, 22 N.R.C. 461 (1985). The Appeal Board in the PISm case, however, explicitly declined to rule on a similar analysis, but held that the petitioner had filed too late to intervene.

Whether proximity can be enough to establish standing in a license amendment proceeding has not yet been settled. The Staff agrees with the Licensee that the resolution of the issue of whether distance from the facility is adequate to estabilsh interest and standing in an amendment proceeding is different than that followed in an operating license or construction permit proceeding. Romano has not i established with sufficient particularity the consequences that might l l

(FOOTNOTE CONTINUED ON NEXT PAGE1 !

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i allegation that it will suffer some- type of " health and financial loss,"

similarly does not provide the particularity necessary to establish the requisite interest. In the first place, it does not identify any particular i

individual organizational interest in this amendment. Secondly, the reference that AWPP will suffer some sort of unidentified economic harm )

is clearly inadequate to provide the requisite interest. As the Licensee correctly points out, NRC case law does not recognize this type of alleged 32/

economic injury as sufficient to establish standing and interest. .

AWPP is required by 6 2.714 to come forward and plead the particular facts that establish it's standing. 3_3 / Clearly, AWPP's conclusory statement as to interest and standing are inadequate and it has not met this requirement. ;

in support of its right to participate in this amendment proceeding, AWPP states that it "is an intervenor in this licensing process." As AWPP is well aware this is not the operating ilcense proceeding to which AWPP was a participant. Over a year ago, on March 17, 1986, the Staff, (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) )

be realized at his residence that could result from the implementation of this amendment. His generalizations about Chernoble are inadequate to tie these concerns in with this amendment.

3_2 2 / See text at note 22, supra. !

-33/ While the Staff does not necessarily expect a pro se intervenor to meet all the technical pleading requirements in tfie Commission's Rules of Practice, AWPP's omission of the facts that might support its standing is not merely a failure to satisfy technical requirements.

AWPP has submitted too few facts for the Staff to dispute that those facts might establish standing as a matter of law. However, AWPP has participated extensively with respect to other proceedings involving the Licensee's facility and should be held to a higher standard, in this case, AWPP has not shown a legally cognizable interest because it has not shown any basis at all for its interest.

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In a pleading related to another license amendment proposed by the Licensee, advised AWPP that prior representation in the operating license i l

proceeding does not estab!!sh interest or standing in a different proceeding involving the same licensee. In that proceeding, the Staff-advised AWPP that:

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1. Interest and Standing The sole argument made by AWPP in support of its standing in this matter is that, it was an intervenor in the Limerick licensing proceeding. Petition at 1. This argument, standing alone, is not adequate to support a finding that AWPP has the requisite standing to participate in this proceeding. The fact that the AWPP has been admitted in another proceeding concerning the Limerick facility does not excuse it from demonstrating that the requirements for intervention are met i in this proceeding. Philadelphia Electric Co. (Peach Bottom i Atomic Power Station, Units 2 and 3), LBP-75-22,1 NRC 451, 454-55 (1975); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), LB P-73-2 6, 6 AEC 612, 616 (1973).

AWPP also - falls to identify the address of a member who resides within close proximity to the Limerick facility and who has authorized AWPP to represent his or her interest in the proceeding. North Anna, A LAB-522, supra. ; and Allens Creek, ALAB-535, supra. , at 393-397.

Furthermore, AWPP has failed to establish how it will be injured by the proposed action. Edlow International Company, CLi-76-6, supra., at 572-574; Ten Applications,

' CLI-77-24, supra. , at' 531. No effort is made by AWPP in l establishing how its interest may be affected by this amendment or to indicate why the Staff was incorrect in concluding that there is reasonable assurance that the health !

and safety of the pubile will not be endangered by the fourteen week extension. AWPP's generalized statements, i which are without any basis, are not enough to meet its obligations under 10 C.F.R. 6 2.714. Response of NRC Staff in Opposition To Petition And Request For A Hearing By The Air And Water Pollution Patrol Regarding Licensee's Amendment Request No.1, at 7-8, (March 17,1986).

The Licensee also correctly observes that prior participation in a proceeding does not establish a person's interest in a subsequent separate !

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proceeding concerning the same facility. El Therefore;.

AWPP's statements of its prior participation in the operating license proceeding for Limerick fails to establish AWPP's interest and standing in this ilcense amendment proceeding.

AWPP raises several arguments that are apparently its effort to

' indicate the aspects to which it wishes to participate. First, it asserts that the Licensee does not not merit the amendment, based on the Licensee's past conduct. AWPP fails to indicate what the relationship is between the proposed amendment and the Licensee's past conduct and how that past conduct is at all relevant to this amendment. If the Licensee's past conduct should provide a basis for precluding it from operating the Limerick facility, AWPP must support this allegation with facts and then the proper course to follow is to bring these pertinent facts to the Commission' attention pursuant to 5 2.206 not as an aspect in an amendment proceeding. 3_5/

Next, AWPP asserts that the requested amendment increases the likelihood of an accident at Limerick. However, AWPP does not specify how the requested amendment would increase the risk of any postulated accident. 3_6/ indeed, AWPP's petition fails to address the fact that the Staff made a "no significant hazards consideration" finding with respect to this amendment and that the Licensee sought the amendment in the first place at the behest of the Staff in Generic Letter 85-19. In Generic 34/ Licensee's First Answer at 14;

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Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), LB P-75-2 2 , 1 N.R.C.

451, 454-55 (1975).

35/ 10 C.F.R. 5 2.206 (1987).

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3_6 / 10 C.F.R. 9 2.714(a)(2) (1987).

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Letter 85-19, the Staff notes that it has determined that the improved quality of nuclear fuel has made the existing TS reporting requirement unnecessary. AWPP ignores the Staff analysis and does not address the implications of the Staff's basis for the change. Also, AWPP does not address, let alone mention, the fact that all that is being changed here is

'the elimination of the short- term report, lodine spiking must still .be reported in the Licensee's annual report.

Accordingly, AWPP's petition falls to meet the Commission's standard for intervention and the Petition should be denied.

C. Anthony's Petition Anthony's petition also falls to satisfy the requirements for

' intervention in an NRC proceeding in that it does not contain the requisite demonstration of compilance with 10 C.F.R. 5 2.714 by setting forth with particularity his interest, how that interest may be affected and the specific aspect of the subject matter of the proceeding that he wishes to pursue. Therefore, the Staff agrees with the Licensee that Anthony has failed to meet the requirements to intervene and request a hearing in connection with this amendment request. E Anthony states that he lives about 25 miles from the Limerick facility. 38/ The mere statement that he lives within a certain distance from the plant does not, in and of itself, establish the requisite interest and standing. The Staff agrees with the Licensee's analysis that Anthony l

-37/ " Licensee's Answer in Opposition To Petition By R. L. Anthony For Leave To Intervene And For A Hearing" (May 22, 1987) (Licensee's j Second Answer).

,38/ Anthony Petition, i

must do more than simply state how far he ilves from the reactor. E Anthony has not set forth with particularity its interest in this proceeding or how that interest may be affected by the results of this amendment. E Anthony's assertion that "[w]e have demonstrated our _

interest in our individual health and financial situation" is simply another unsupported conclusion. Anthony does not suggest in any way how the proposed amendment could affect him. Because Anthony makes no statement (other than where he resides) that might establish his standing, for this reason alone the Licensing Board should deny his petition to intervene and his motion for a hearing.

Anthony also asserts that he has established interest and standing since he has " served as an intervenor in the licensing process." As the Staff and the Licensee have shown, participation in an earlier proceeding en that concerned a particular facility does not establish standing to intervene in a later proceeding concerning the same facility, b Anthony's statements that he has an interest in this proceeding as one of the Licensee's ratepayers or customers also cannot provide the l

-39/ Licensee's Second Answer at 3: Licensee's First Answer at 19-21.

ML20235M175

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