ML20086K444

Licensee Answer in Opposition to Petition for Leave to Intervene & Request for Hearing.* Petition Should Be Denied Due to Petitioner Failure to Advise Appropriate Parties Re Hearing.W/Certificate of Svc & Notices of Appearance

ML20086K444
Person / Time
Site:	Palo Verde
Issue date:	12/10/1991
From:	Gutterman A ARIZONA PUBLIC SERVICE CO. (FORMERLY ARIZONA NUCLEAR, NEWMAN & HOLTZINGER
To:	NRC COMMISSION (OCM)
References
CON-#491-12412 OLA, OLA-3, NUDOCS 9112130106
Download: ML20086K444 (14)

Text

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.- Lole,LILD i UWC "91 DEC 12 P12 M6 December 10, 1991 UNITED STATES (OFjAMERICA i NUCLEAR REGULATORY'!goMMISSION

)

In the Matter of )

) Nos. 50-528-OLA, 50-529-OLA.

ARIZONA PUBLIC SERVICE ) and 50-530-OLA - 3 COMPANY, et al. )

) (Shutdown Cooling Valve)

)

(Palo Verde Nuclear Generating )

Station, Units 1, 2, and 3) )

) i LICENSEES' ANSWER IN-OPPOSITION ,

TO PETITION FO!t LEAVE TO ,

IKTERVINELAND_ REQUIST_ FOR_11 EARING Arizona Public Service. Company, et al. ("APS" or "Liconsees") 1/ file this Answer in opposition to the " Petition

- for Leave to' Intervene and Request for Hearing" submitted by Allan L. Mitchell and Linda E. Mitchell and bearing the date

. November 25, 1991 (" Petition"). .

The Petition relates to a proposed amendment t'o each of the operating licenses 2/ for the three-Palo Verde units which was noticed in the-Federal Register at' 56 Fed. Reg.- 55,940, 55,942 (1991). The amendment request was ,

~ 1/ .This Answer is boing filed by-APS on its own behalf'and on

i. behalf of-the other licensees of the Palo Verde Nuclear l Generating--Station ("PVNGS"),-Units-1, 2 andf3: Salt River Project Agricultural Improvement and Power District,-El Paso Service-Company of New Mexico,ELos Angeles-Department of -+

Water and Power, and. Southern California Public Power

-Authority.

2/ ~For PVNGS Unit 1, Facility Operating License No. . NPP-41; . f or-r

.PVNGS-Unit 2,-Facility Operating License No. NPF-51; and for PVNGS Unit 3,-Facility Operating License No.- NPF-74.

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1 submitted to implement a programmed enhancement identified in APS's responso to Generic Letter No. 89-17, " Lose of Decay Heat Removal" (Oct. 17, 1988), which recommends further enh.ancements P

to procedures, programs, and Technical Specifications regarding loss of the shutdown cooling system. 3/ Each proposed amendment would result in remov[al) of the automatic closure interlock (ACI) for the shutdown cooling valves to make the shutdown cooling system more reliable.

Accordingly, the technical specifications would be revised to delete the surveillance requirement for this interlock.

56 Fed. Reg, at 55,942; are alna Sept. 9, 1991 Latter.

The Federal FOgister Notice of the proposed amendment clearly states that anyone seeking to intervene in the instant proceeding must comply with by 10 C.F.R. S 2.714 (1991). 56 Fed.

Reg. at 55,941. As the notice states, 10 C.F.R. S 2.714 (1991) requires that a petition for leave to intervene shall set forth with particularity the interest o+: the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why 1/ The proposed amendment is one of two potential license amendmer.te to reduce the risk of loss of shutdown cooling events that were identified in APS's January C, 1989 response to Generic Letter 88-17. See September 9, 1991 letter to the Nuclear Regu.latory Commission from APS requesting the current amendment, and Reference 1 to that request, constituting a letter to the Commicsion from APS dated January 6, 1989. Petitioners Allan and Linda Mitchell also requested a hearing on the other potential amendment, however they subsequently withdrew that request without identifying any contentions. See Ariznna__Eublic sery_ics Cou_ctLt.LL (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), LBP-91-20, 33 N.R.C. 416 (1991).

9

-3 intervention should be permitted with particular reference to the following factorst (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered la the proceeding on the petitioner's interest. The petition should also identify the specific aspect (s) of the subject matter of the proceeding as to which petitioner wishes to intervene.

56 Fed. Reg at 55,941 (emphasis added).

Petitioners may have shown the plausibility of their having an affected interest by virtue of residence in proximity to PVNGS and the employment of one of them at the plant.

Therefore, we do not challenge Petitioners' standing to intervene. A/ However, S 2.714(a)(2) expressly requires that a petition to intervene set forth "the specific aspect or aspects of the subject matter of the-proceeding as to which petitioner wishes to intervene." Although, the burden is on Petitioners to satisfy this requirement, 10 CFR S 2.732 (1991); hetropolitan Edison Co. et al. (Three Mile-Island Nuclear Station, Unit No.

1), CLI-83-25, 18 N.R.C. 327,331 (1983), they have not met it.

Consequently, Licensees submit, the Petition should be denied.

1/ Petitioners previously established their standing to intervene in an operating license amendment proceeding related to Palo Verde in Arizona Public Service Co,.s,_et al.

(Palo Verde Nuclear Generating Station, Units 1, 2, and 3),

LBP-91-4, 33 N.R.C. 153 (1991) (Allowable Setpoint l Tolerance). Factors identical to those relied on in the above captioned proceeding are relied upon to support standing here.

4

- 4-The Petition merely states, without describing the proposed amendment in any way or indicating any changes the Licensees seek, that Petitioners intend to intervene in all aspects of the proceeding set forth in the F_ederal Regia.ter notice and all aspects as set forth by the list of contentions which will be submitted by Petitioners upon their filing of an amended or supplemental petition in accordance with the intervention rule.

Petition at 3.

As was stated in Licensees' Answer in Opposition to Petitions for Leave to Intervene and Requests for Hearing in the proceeding in which LBP-91-4 was issued, "[t]here is little guidance in NRC case law concerning the meaning of ' aspect' as the term is used in 10 CFR S 2.714." (quoting YermRInt Yankeejiuclear Power Cork (Vermont Yankee Nuclear Power Station), LBP-90-6, 31 N.R.C. 85, 89 (1990)). It has been suggested "that an ' aspect' is probably broader than a ' contention' but narrower than a general reference to our operating statutes." Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-78-27, 8 N.R.C. 275, 278 (1978). However, at a minimum, the requirement that the petitioner set forth a specific aspect or specific aspects of the proceeding must mean that the petitioner has an obligation to identify " general potential effects of the licensing action or areas of concern that are within the scope of matters that may be considered in the proceeding," c g , aging of equipment, Vermont Yankee, LBP-90-6, 31 N.R.C. at 89-90; the applicant's qualifications to construct a reactor, Virginia _ Electric & Power Co. (North Anna

5-Power Station, Units 1 and 2), ALAB-146, 6 A.E.C. 631, 633 (1973); or the effects of time extensions for testing ir.atrumentation lines, Ehiladelphia Electric Co. (Limerick Generating Station, Unit 1), LBP-86-6A, 23 N.R.C. 165, 169-70 (1986). The Petition fails to meet this requirement.

The failure of the Petition to meet the aspect requirement of 10 C.F.R. G 2.714 is not a mere technical flaw.

The objective of the aspect requirement of S 2.714 is to provide early notice to the NRC Staff and Licensees as to the area (s) of the proposed amendment that petitioners wish to interveno in where, as here, more than one possible area exists. This requirement is liberal and permissive and does not operate as an obstacle to participation in the licensing process by truly interested members of the public with legally cognizable interests. Correlatively, the aspect requirement may serve to prevent the unnecessary initiation of expensive, time-consuming and diversionary burdens botn upon licensees and the Commission.

We are, of course, aware that, in LBP-91-4, the Licensing Board rejected a simile challenge, made by both the Licensees and.the NRC Staff and based upon Petitioners'-failure to meet the aspect requirement. In that proceeding, like the present one, the Mitchells filed a petition to intervene, substantially similar to Petitioners' present petition. One of the grounds on which Licensees and the Staff sought to have that j petition denied was that it did not meet the aspect requirement

( of 10 CFR S 2.714(a)(2). As in their present petition, the l

l l

s Mitchells' petition in the previous proceeding did not set forth specific aspects of the amendment that they wished to challenge.

In rejecting the arguments made by the Licensees and the Staff,

-the Board in LBP-91-4 stated:

The Board believes that the objection is misdiructed in this case. Section 2.714 is the general intervention rule controlling intervention in all proceedings under Subpart G. Thus, in a full-scope operating license proceeding, for example, petitioners might be expected to explain that they wish to intervene in, say, the ingestion-pathway emergency planning aspects, or perhaps financial qualifications, or management competence, or whatever broad category of interest concerns them.

In this proceeding the aspects of the operating license proposed for amendment are already clearly set out in the Federal Register notice. Simply by petitioning to intervene, a person whose interest may be affected by the proceeding has indicated the aspects as to which that person wishes to intervene. Petitioners need not be more particular until they file their list of contentions. Most important, the Licensees and_the NRC Staff are well informed by early notice what any proceeding on the proposed amendments would be about.

33 N.R.C. at 159.

This language could conceivably be read as intending to effectively eliminate the aspect requirement from all operating license amendment proceedings. If that is now the law, the instant petition is admissible. However, Licensees respectfully submit that is not the law and such an interpretation of S 2.714 should-be rejected.

s We point out that the holding in LBP-91-4 was not addressed by the Commission on review. That interlocutory order was superseded by Petitioners subsequent filing of a Supplemental Petition containing the contentions Petitioners sought to have litigated. Consequently, the Commission only addressed the validity of the bases of Petitioners' contentions, and did not address the aspect requirement issue, in the Commission's denial of Licensee's appeal of the Board's memorandum and order granting the Mitchells' petition for leave to intervene and request for hearing. Arirana_Euhlic service company, et al. (Palo Verde Nuclear Generating Station, Units 1,2, and 3), CL1-91-12, 34 N.R.C. 149 (1991). Thus, if the Board that issur 3 LBP-91-4 intended to read the aspect requirement out of operating license amendment proceedings, it is not binding precedent. 5/ It should not be adhered to here.

Section 2.714(a)(2) is the general intervention rule controlling intervention in all proceedings under Subpart G.

Operating license amendment proceedings are within the scope of Subpart G. This is a petition for intervention into an operating license amendment proceeding. Therefore, the Petition must comply with the requirements, including the aspect requirement, 5/ A licensing board order that was never appealed is not entitled to any stare decisis effect. Een Florida Power &

Light Co. (St. Lucie Nuclear Power Plant, Unit 1), ALAB-893, 27 N.R.C. 627, 629 n.5 (1988); Arizona Public Service Co.

(Palo Verde Nuclear Generating Stations, Units 1, 2 and 3),

ALAB-713, 17 N.R.C. 83, 85 (1983); Duhe Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-482, 7 N.R.C. 979, 981 n.4 (1978).

l 1 _ - _ - __ _ ---_ --- _ - _ _ - _ _ _ _ - _ _ - _ _ -

4 8-of S 2.714(a)(2), and a Licensing Board may not simply eliminate a requirement '.mposed by regulation. Moreover, as pointed out above, the aspect requirement continues to serve a useful purpose in operating license amendment proceedings.

We believe that, rather than intending to read the aspect requirement of S 2.714 out of operating license amendment proceedings, the Licensing Board tnat issued LBP-91-4 was mercly holding that, because of the special nature of the amendment there involved, the Federal Register notice was sufficient to identify the aspects of the amendment application which the Petitioners wished to address, and that any further reference to aspects in the petition to intervene would be merely redundant.

If that is so, this proceeding is clearly distinguishable. Here, Petitioners state that they intend to intervene in "all aspects of the proceeding set forth in the Federal Register notice" and allege that "the amendment request involves cignificant hazards considerations." Petition at 3. This language clearly indicates that Petitioners recognize that there is more than one possible aspect of the proceeding that an intervenor could be concerned with. Nevertheless, Petitioners suggest only one specific aspect, Staff's determination that the amendment requests involve no significant hazards considerations, E/ and leave the E/ However, a licensing board lacks jurisdiction to consider whether Staff's no significant hazards consideratione determination was erroneous. Florida Power & Light Co.

(Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-89-15, 29 N.R.C.-493, 500 (1989); Florida Power & Light Co.

(continued...)

l i

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-9 Commission and Licensees to guess at the others.

The statement that "all aspects" will be the subject of intervention provides no more indication of the " general potential effects of the licensing action or areas of concern that are within the scopo of matters that may be considered in the proceeding", Vermont Yanken, LBP-90-6, 31 N.R.C. at 89-90, than does no language addressing aspects. "All aspects" would only be mean3ngful if all possible concerns were obvious from the Federal Register Notice and no two persons could reasonably differ in identifying these concerns. This is not the case here.

One cannot ascertain from the Federal Register Notice the specific aspects of the requested amendments that Petitioners wish to address. 2/ Additionally, as pointed out above, t h-one possible aspect that Petitioners have referred to, Staff's 5/(... continued)

(St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 N.R.C. 452, ,456-57 (1988); Yermont Yankee Nutlgar Power Corp (Vermont Yankee Nuclear Power Stati.on), LBP-87-17, 25 NRC 830, 844 (1987). Staff's determination of no significant hazards considerations is-final and there is no right to appeal this determination to any body within the agency. Eacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2, CLI-86-12, 24 N.R.C. 1, 4, rev'd in part nn other grounds, aub nom San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268 (9th Cir. 1986).

2/ Aside from the invalid no significant hazards considerations aspect suggested by Petitioners, Licensees have identified two possible aspects that Petitioners may wish to address (1) the removal of the ACI and (2) the deletion of the surveillance requirement for this interlock. However, because Petitioners have not set out the aspects of the proposed amendment that they wish to address, as required by section 2.714, Licensees do not know whether either of these aspects are included in Petitioners' reference to "cll aspects."

l

e determination that the amendment requests involve no significant hazards consideration, is not a natter that may be considered in this proceeding. This reference to such an invalid aspect underscores the need for Petitioners to meet the aspect requirement prior to the initiation of proceedings and the related expenditure of rerources which may be wholly wasteful.

However, nowhere in the Petition can any valid aspects be discerned. It is therefore possible that none exist.

Here, the Licensees have requested an operating license amendment involving a significantly different technical subject than those which the Licensing Board addressed in LBP-91-4.

Petitioners have, however, employed nearly identical, rote language in their previous and present Petitions. Petitioners have again wholly _ ignored the subject matter of the requested amendment, and have attempted to initiate a hearing without advising either the Commission or the Licensees of the nature of their concerns.

Accordingly, the Petition should be denied.

Respectfully submitted,

& >Y s <hV~

'Alvin H. Gutterman Deborah A. Moss Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036 Attorneys for Licensees December 10, 1991

3 :. .

. 00LKCRO

'b UbN6C December 10,-1991-11 DEC 12 R2:47 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION , . , .y y ggy

),.4060 tudhi N HH MiOi +

)

In the Matter of )

) Nos. 50-528-OLA, 50-529-OLA

'ARIEONA PUBLIC. SERVICE ) and 50-530-OLA COMPANY, et al. )

) (Shutdown Cooling Valve)

)

(Palo Verde Nuclear Generating )

Station, Units _l, 2, and 3) ) i

)

CERIII.1CATZ_DE_ SERVICE I hereby certify that copies of " Licensees' Answer'in Opposition to Petition for Leave' tc Intervene and Request for-Hearing" in the above captioned proceeding, together-with-two " Notice [s] of

-Appearance of Counsel," were served on the following by deposit in the

-United States mail, first class, properly stamped and addressed, on the date shown below.

U.S. Nuclear Regulatory _ Commission .,

Atomic Safety and Licensing Bodrd Panel '

Adjudicatory File Washington, D.C. 20555 (two. copies)

Office of the Secretary U.S. Nuclear-Regulatory Commission Washington, D.C.- 20555-

-Attentions = Chief, Docketing and Service Section (Original plus two copies)

Administrative Judge Robert M. Lazo, Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD '20814=

Administrative Judge Jerry R. Kline Atomic Sttfety and Licensing Board U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Administrative Judge Peter S. Lam Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814 Edwin J. Reis, Esq.

Lisa B. Clark, Esq.

Office of General Counsel s U.S. Nuclear Regulatory Commission

] Washington, D.C. 20555 David K. Colapinto, Esq.

Counsel for Allen & Linda Nitchell Kohn, Kohn & Colapinto, P.C.

< 517 Florida Avenue, N.W.

Washington, D.C. 20001 Stephen M. Kohn, Esq.

Counsel for Allen & Linda Mitchell Kohn, Kohn & Colapinto, P.C.

517 Florida Avenue, N.W.

7 Washington, D.C. 20001 Nancy C. Loftin, Esq.

Corporate Secretary and Corporate Counsel Arizona Public Service Company Post Office Box 53999 Mail Station 9068 Phoenix, Arizona 85072-3999 v

ilvin H. Gutterman Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036 December 10, 1991

T.

h' 10l r.L il D DecemNf10, 1991 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION uFiltL N SEchflAHY :gL DOCKC ling ?. 51 HVICI BRANC4

) ~

In the Matter of. )

) Nos. 50-528-OLA, 50-529-OLA ARIEONA PUBLIC SERVICE ) and 50-530-OLA COMPANY, et al. )

) (Ghutdown Cooling Valve)

)

(Palo Verde Nuclear Generating )

-Station, Units _1, 2, and 3) )

)

ROIICE_QF__APfEARANCE OF CQURSEL Notice is hereby given that Alvin H. Gutterman enters an-appearance as counsel for Arizona Public Service Company, et al. in-the ab ove-capt i oned proceeding.

Name: Alvin H. Gutterman Address: Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036 Telephor.e - (202) 955-6600 Admissions: District of Columbia-Court of Appeals Name of Party -Arizona Public Service Company, et al..

P.O. 53999

-Mail Station 9068 Phoenix, Arizona 85072-3999 YSW-Alvin H. Gutterman-Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036 Date: December 10, 1991

4 4,. ,g

$l E* . a ri;l i' f -UMWC December 10, 1991 14 00C 12 R2:47 UNITED STATES OF AMERICA '

NUCLEAR REGULATORY COMMISSION ggy boCrd liN!i '. M#vint BRANCH

)

In-the Matter of )

) tios . 50-528-OLA, 50-529-OLA ARIEONA PUBLIC SERVICE ) and 50-530-OLA COMPANY, et al. )

) (Shutdown Cooling Valve)

)

(Palo Verde Nuclear Generating )

Station, Units 1, 2, and 3) )

)

HQTICE OF APPEAR &NCE OF_.CQURSEL Notice is hereby given that Deborah A.. Moss enters ein -

appearance as_ counsel for' Arizona Public Service Company, et al. in the above-captioned proceeding.

Names- Deborah A. Moss Address: Newman & Holtzinger, P.C.

1615 L. Street, N.W.

Suite-1000 Washington, D.C. 20036 Telephones (202) 955-6600-1

- Admissions: Supreme: Court of= Pennsylvania / Eastern District' Name of Party: Arizona Public Service -

Company, et al.

P.O.-53999 Mail' Station 9068 Phoenix, Arizona.. 85072-3999 to i / b Ubborah A', 'M6ss Newman & Holtzinger, P.C.

'1615 L Street, N.W.

Suite 1000-Washington, D.C. 20036 Date: December 10, 1991

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