ML20236N795
| ML20236N795 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 11/09/1987 |
| From: | Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-4819 OLA, NUDOCS 8711170011 | |
| Download: ML20236N795 (11) | |
Text
- -_
41/f A
'87 NOV 13 P3 :43 j
'i
'~
0FFICE CI MCfTIAPY 00CKEiiNG A MMICf.
BRANDi November 9,1987 q
1
- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
l BEFORE THE ATOMIC SAFETY AND LICENSING BOARD.
In the Matter of
)
)
FLORIDA POWER & LIGHT
)
Docket No. 50-335 OLA COMPANY
)
)
(St. _Lucie Plant, Unit No.1)
)
(SFP Expansion)
NRC STAFF RESPONSE TO LETTER HEARING REQUEST BY CAMPBELL RICH 1.
INTRODUCTION Florida Power & Light Company (Licensee) is licensed to possess, use and operate St. Lucie Plant, Unit No.1, a pressurized water nuclear reactor located in St. Lucie County, Florida.
On August 31,1987, pur-suant to 10 C.F.R. 5 2.105(a)(4)(i), the NRC published in the Federal Register a notice of consideration of the issuance of an amendment to the facility license and offered the opportunity for hearing on the amendment.
The amendment would allow the expansion of the spent fuel pool storage capacity from 728 to 1706 fuel assemblies.
The notice established September 30, 1987 as the deadline for filing a request for hearing and petition for leave to intervene.
Based on a local newspaper article, Campbell Rich forwarded a let-ter, dated September 30, 1987, to the Secretary of the Commission and requested that a "public hearing" be held on the amendment.
Letter at j
1 8711170011 871109 gDR ADOCK 050 g 5
- 1. O Therein, Mr. Rich states that "there are many areas of concern to residents of. [the] area" concerning expanded storage.
Id. Appended to the letter is a list of twenty signatures, including Mr. Rich's, of Individ-uals who "are in agreement with the concerns expressed in the letter
[and) ask that a public hearing be held" concerning the expanded storage capacity.
The concerns (which generally appear to be questions to, or requests for information from, the NRC) refer to potential hurri-canes, the safety of the increased storage capacity, population growth in the area, fuel transfer (presumably fuel handling) dangers, evacuation l
measures during fuel transfer, fuel transfer experience at other sites, and general policy questions about the increased spent fuel storage.
Id.
at 1-2.
The letter also states that the concerns expressed are only some of the general concerns of many residents and makes vague reference to "other more technical concerns" which are not specified.
Id_. at 2.
The Staff does not believe that the letter was intended as a request for an adjudicatory hearing in which Mr. Rich or the other signatories contemplated they would present evidence and conduct cross-examination of Staff and Licensee witnesses on admitted contentions.
Rather it ap-pears from the posture of the questions that the signers of the " petition" want an informal hearing or meeting where the public could comment or direct quest!ons to the NRC and Licensee.
However, if the letter is con-
~1/
Because Mr. Rich addressed his letter to the Secretary of the Com-mission, copies of his letter were not served upon the Staff until October 20, 1987, the service date for the October 16,1987 memo-randum from the Secretarv to the Chief Administrative Judge of the Licensing Board Panel.
The Staff's response time has been calculat-ed based on that service date.
I strued as a petition for intervention and request for hearing, the Staff I
believes that the letter does not currently satisfy the requirements for intervention' set forth in 10 C.F.R. 6 2.714(a), but the deficiencies may be curable through an appropriate amendment.
11.
DISCUSSION A.
Interest and Standing Section 189a of the Atomic Energy Act, 42, U.S.C. 5 2239(a) (the "Act") provides that:
In any proceeding under (the] Act, for the granting, sus-pending, revoking, or amending of any license or construc-tion permit... the Commission shall grant a hearing upon the request of any person whose interest may be affected by the prceeeding, and shall admit any such person as a party to such proceeding.
Section 2.714(a) of the Commission s Rules of Practice also provides that i
"[a}ne person whose interest may be affected by a proceeding and who desires to participate as a party shall flie a written petition for leave to intervene."
Thus the pertinent inquiry under Section 189a of the Act and 10 C.F.R. 5 2.714(a) of the regulations is whether a petitioner has alleged an interest which may be affected by the operating license amend-ment proceeding. -
The Commiss!on has held that contemporaneous judicial concepts of standing are controlling in the determination of whether the requisite interest prescribed by both Section 189a of the Act and Section 2.714 of the NRC's Rules of Practice is present.
Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units 1 and 2),
2_/
This interest is referred to in legal terminology as " standing."
i 1'
l
i
! l C LI-76 -27, 4 NRC 610, 613-14 (1976).
There mut,t be a showing that (1) the action being challenged could cause " injury-in-fact" to the person l
seeking to intervene and that (2) such injury is arguably within the
" zone of interests" protected by the Atomic Energy Act or the National Environmental Policy Act. 3,/
Id.
See Warth v. Seldin, 422 U.S. 490 (1975); Sierra Club v. Morton, 405 U.S. 727 (1972).
Thus, a petitioner j
I must " set forth with particularity" its interest in the proceeding and how that interest may be affected by the outcome of the proceeding.
4 10 C. F. R. 5 2.714(a)(2).
1.
Rules Generally Applicable to Organizations and Individuals An organization may establish standing based upon an injury to itself
)
or through members of the organization who have interests which may be affected by the outcome of the proceeding.
Edlow International Co.,
C Ll 6, 3 NRC 563, 572-74 (1976); Public Service Co. of Indiana, Inc.
(Marble Hill Nuclear Generating Station, Units and 2), A LAB-32 2, 3 NRC 328, 330 (1976). b When an organization claims standing bused on the interest of its members, at least one of its members must have standing in his or her own right, the organization must identify (by name and address) a specific Individual member whose interest may be affected, and the organization must demonstrate that such member has authorized 3/
42 U.S.C. 6 4321 et seq.
g
-4/
A petitioner must particularize a specific injury that it or its mem-bers would or might sustain should it be denied relief.
The test is whether a " cognizable Interest of the petitioner might be adversely affected if the proceeding has one outcome or another." Marble Hill, CLl-80-10,11 NRC 436 (1980).
1 i
j i j l
l y
the i organization to represent his or her interest in the proceeding.
~
Houston Lighting & Power Co. ( Allens Creek Nuclear Generating Station, Unit 1), AL'AB-535, 9 NRC 377, 393-97 (1979); Public Service Electric &
i Gas Co. (Salem Nuclear ' Generating Station, Units 1. and 2),- ALAB-136, 6 AEC 487, 488-89 (1973).
i Generally, the close proximity of a petitioner's residence' to the facil -
i l
lty involved 'in the application is presumed sufficient to satisfy the inter-l
\\
est. requirements of 10 C.F.R. - 6.2.714.
. Armed Forces Radiobiology l
' Research Institute (Cobalt-60 Storage Facility), ALAB-682, 16 NRC 150, a
{
153 (1982)' (hereafter "AFRRI"); Allens Creek, 9 NRC at 393, citing,
j Virginia Electric & Po'wer Co. (North Anna Nuclear Power Station, Units 1 I
and 2), ALAB-522, 9 NRC 54, 56 '(1979). -
Nevertheless, since there !s no presumption that every individual who lives near the plant will consid-er himself.potentially harmed by the outcome of.a proceeding, it is impor-t tant that the-riature of the potential impact of the proceeding on an Individual's personal interest be identified.-
Allens Creek, 9 NRC at 383.
Accordingly, it has been found that. persons who live near the site have standing to intervene if they allege a potential for injury from operation of the facility.
Northern Indiana Public Service Co. (Bailly Generating l
5/
In the past, residential distances of up to 50 miles have been found to be not so great as to necessarily preclude a ilnding of standing in 1lcensliig proceedings.
See e.g.,
Tennessee Valley Authority l
(Watts. Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 at n.4 (1977); Portland General Electric Co. (Trojan Nuclear Piant), A LA B-496, 8 ~"TDR C 308 (1978)
(40 miles); North _ Anna, l
ALAB-146, 6 AEC 631, 633-34 (1973) (residency within 30-40 miles sufficient in show interest in raising safety questions).
.-______________-___-_-._-_m
1
- i Station, Nuclear-1 ), L B P-80-22, 12 NRC 191, 195-96 (1980), affirmed,
ALAB-619,12 NRC 558, 564-65 (1980).
2.
Interest and Standing of Petitioner in This Proceeding St. Lucie is located on Hutchinson Island in St. Lucie County, about halfway between Fort Pierce. and Stuart, Florida.
Final Environmental Statement related to operation of St. Lucie Plant, Unit No.1, dated June 1973, at 11-1.
While the letter shows no return address, Mr. Rich's address on the signature page attached to the letter indicates that he lives in Stuart, Florida, which is about 10 miles from the site.
See M. at Fig. 11-1.
In addition, the other signers of the petition reside in Stuart, Jensen Beach, Palm City, or Salerno, Florida, which are all within about twenty miles of the site.
Thus, based on geographical proximity and if there is an allegation of potential injury from operation of the facility under the proposed amendment, Mr. Rich or another signatory would satisfy the interest requirement for standing. 6_/
-6/
It is not clear whether the other signers of the petition are seeking to intervene on their own behalf or are relying on Mr. Rich to rep-resent their interest in this proceeding.
While the signers of the petition may succeed in establishing standing in their own right as a result of their geographical proximity to the site (if they possess the requisite interest), Mr. Rich may not represent the interests of the other nineteen individuals unless those individuals are members of a group or organization of which Mr. Rich is an expressly authorized representative.
See Allens Creek, ALAB-535, 9 NRC at 395-97 (rep-resentatives of an organization must have express authorization to represent the interests of its members in a proceeding unless it can be presumed from membership in the organization that such author-1 liation exists); Watts Bar, A LA B-413, 5 NRC at 1421 (Individuals may not assert the legal rights of third parties),
if the intention of the petitioners is that Mr. Rich represent them as an organization, i
an officer or other appropriate representative of that organization (FOOTNOTE CONTINUED ON NEXT PAGE)
V; -
i 6 l
As a result of Mr. Rich's reliance on a newspaper article and failure 1
to read the -Federal Rcgister notice, which detailed the 10 C.F.R. 5 2.714 requirements for. Intervention In an-NRC proceeding, the letter as cur-rently drafted 'does not allege any injury that may result from operation j
of the facility as, proposed.
The letter'..merely states general concerns l
.about the' proposed amendment.
Consequently, Mr. Rich and the other 1
. individuals have not. demonstrated the requisite interest for standing.
l The failure to adequately identify their interests in the proceeding i
does not necessarily defeat the grant of intervenor status to Mr. Rich and the other signatories.
Under 10 C.F.R. 9 2.714(a)(3), a petition for leave to intervene may be amended, without prior approval of the presiding officer, at any time up to fifteen days prior to a special prehearing conference held pursuant to 10 C.F.R. 9 2.751a or, if no special. prehearing conference is held, fifteen days before the first prehearing conference.
The Appeal Board has stated that petitions that suffer from. Inarticulate draftsmanship or procedural or pleading defects 3
may be amended if they contain curable defects.
North Anna, ALAB-146, i
6 AEC at 633-34 (1973).
See Wisconsin Public Service Corp. (Kewaunee Nuclear Plant), LBP-78-24, 8 NRC 78, 82 (1978).
Yet, a totally defective pleading may not be justified on the basis that it was prepared without the assistance of counsel.
Houston Lighting & Power Co. ( Allens Creek i
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
I would have to submit an affidavit that. identifies the organization, indicates that Mr. Rich is a member and authorizes Mr. Rich to represent the organization in this proceeding.
See Allens Creek, 9 NRC at 393-97.
w
'i
_.g, i
c i
Nuclear Generating' Station, Unit.1), ALAB-590,11 NRC 542, 546 (1980).
1 Since Section 2.714(a)(3) does not Ilmit the reasons for amendment,. and-1 l
assuming _ the defects are curable, the letter could be amended to fully adoress tiie-criteria in 10 C.F.R. 5 2.714(a).
i B.-
Specific Aspects of the Subject Matter of an Operating License Amendment Proceeding in addition to satisfying ti$e standing and Interest requirements of 10 C.F.R $ 2.714, a petitioner must also " set forth with particularity
... the specific aspect or aspects of the subject matter of-the proceed-Ing as to which the petitioner wishes to intervene."
10 C.F.R.
f 2.714(a)(2). U As stated above, - the questions in the letter are general concerns which primarily request information from the NRC and may not be intend-j ed'as topics for litigation in a formal adjudicatory proceeding.
Neverthe-less, some of the questions posed relate - to subjects that are arguably within the ' scope of the subject matter of the spent fuel pool storage ca-pacity expansion proceeding (i.e., the safety of the expanded storage capacity, fuel handling dangers and " evacuation measures" during fuel handling).
Thus, it appears that the aspect requirement has been met since some of the questions are sufficient to put the parties on notice 1
with respect to the subject matters that petitioners seek to raise, in L
i l
-7/
An " aspect" is generally considered to be broader than a "conten-tion," but narrower than a general reference to the NRC's operating statutes.
Consumers Power Co. (Midland Plants, Units 1 and 2),
LBP-78-27, 8 NRC 275, 278 (1978).
l
2u-
.i t
s-
\\
order to be' admitted as an intervenor, the petitioners would have to set
- I
{
forth contentions in accordance with 10 C.F.R. 9 2.714(b).
{
111.
CONCLUSION Cased on the-foregoing, while the letter request for hearing sufficiently identifies aspects of the proceeding, Intervention should be i
denied unless. Mr. Rich and the other petitioners amend their request to cure the defects with respect to standing and proffer at least one l
admissible contention in accordance with 10 C.F.R. 5 2.714(b).
Respectfully submitted, Tilfzj A.
oung CourbeVfor NRC ~ Staff Dated at Bethesda, Maryland this 9th day of November,1987 l
t I'
l
7;_ _
f
,A 00LKETE0'-
05NRC
' UNITED STATES OF AMERICA 87 tel 13 P3 544 l
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFICE OF SECRE'IANY 00CKEllHG A SEi4VICf.
BRANC51 j
In the Matter of
)
)
Docket No. 50-335 OLA FLOR 1DA POWER S LIGHT-
)
i COMPANY.
)
(SFP Expansion) i
)
- (St. Lucie Plant, Unit No.1)-
)
NOTICE OF APPEARANCE i
- Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter, in accordance with 10 C.F.R.
!i 2.713(b), the following information is provided:
Name:
Mitzi A. Young Address:
U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C.
20555 l
l Telephone Number:
(301) 492-7837
'I 1
i Admissions:
U.S. Court of Appeals, D.C. Circuit j
U.S. District Court, District of
{
Columbia 1
District of Columbia Court of Appeals Name of Party:
NRC Staff Respectfully submitted, Mit
. Young Counsel for NP,C Staff E
Dated at Bethesds, Maryland this 9th day of b ovember,1987 l
00(,KE T ED I
>S U5NRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 NOV 13 P 3 :44 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD FFICE OF 5EWt 4"Y OCKETING A SERytCf.
BRANCH in the Matter of
)
)
Docket No. 50-335 OLA
- LORIDA POWER AND LIGHT l'
COMPANY
)
)
(St. Lucle Plant, Unit No.1)
)
(SFP Expansion) j I
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO LETTER HEARING REQUEST BY CAMPBELL RICH" and " NOTICE OF APPEARANCE" 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 mall system, this 9th day of November,1987:
B. Paul Cotter, Jr., Chairman Glenn O. Bright Administrative Judge Administrative Judge Atomic bafety and Licensing Atomic Safety and Licensing Board Panet Board Panel 4
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission l
Washington, D.C.
20555*
Washington, D.C.
20555*
Richard F. Cole Michael A. Bauser, Esq.
Atomic Safety and Licensing Harold F. Reis, Esq.
Board Panel Newman & Holtzinger, P.C.
]
U.S. Nuclear Regulatory Commission 1615 L Street, N.W.
Washington, D.C.
20555*
Washington, D.C.
20036 Atomic Safety and Licensing Docketing and Service Section Board Panel Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commiss!on Washington, D.C.
20555*
Washington, D.C.
20555*
Atomic Safety and Licensing Campbell Rich Appeal Board Panel 4626 S.E. Pilot Avenue U.S. Nuclear Regulatory Commission Stuart, Florida 34997 Washington, D.C.
20555*
M t(1 A( Yo0ng.
M
(
[/
CourTstri for NRC Staff V
_ =