ML20082G893

Licensee Opposition to Petition for Hearing & Leave to Intervene.* Hearing Re Notice of Violation & Proposed Imposition of Civil Penalty Re Facility.Petition Should Be Denied Due to Listed Reasons.W/Certificate of Svc

ML20082G893
Person / Time
Site:	Saint Lucie
Issue date:	08/02/1991
From:	Reis H FLORIDA POWER & LIGHT CO., NEWMAN & HOLTZINGER
To:	NRC COMMISSION (OCM)
References
CON-#391-12089 EA-91-062, EA-91-62, OLA, NUDOCS 9108210211
Download: ML20082G893 (13)

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-UNITED STATESI Of AMERICA-NUCLEAR REGULATORY COMMISSION l:

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In the Matter of )

) Docket No. 50-389 l FLORIDA POWER & LIGHT )

COMPANY ) License No. NPF-16

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(St. Lucie Plant,. ) (EA.91-062)

Unit No. 2) )

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V-LICENSEE'S OPPOSITION TO PETITION FOR HEARING AND LEAVE TO INTERVENE l

j Florida Power & Light Company ("FPL" or " Licensee")

hereby. submits this opposition to a " Petition for Hearing and Leave to Intervene" (" Petition") dated July 22, 1991, and addressed to the Commission by " Tom Saporito . . . on: behalf of himself, ~(a private citizen)." The Petition requests a hearing with respect to a " Notice of Violation'and Proposed Imposition of i _ Civil Penalty" (EA 91-062) related to the St. Lucie Plant, Unit l1 No. 2 1/1 The basis for this opposition is that neither the 1'

1/ The Petition is mislabeled as relating to St. Lucie Unit No.

1 as well as to St.-Lucie Unit No. 2. EA 91-062 here involved related only-to the inoperability of the containment spray system:in St. Lucie Unit No. 2 and was proposed to be imposed pursuant to 10 CFR'S 2.205. Pursuant to the provisions of the relevant regulation (10 CFR S 2.201), FPL' responded by letter dated July 11, 1991, advising the Director of the NRC's Office of Enforcement that it would pay the civil penalty. Attached to the letter was the required written statement or explanation replying to the Notice of Violation. The $37,500 penalty assesaed (continued...)

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Atomic Energy Act nor the regulations of the Nuclear Regulatory Commission provide for a hearing, as requested by Mr. Saporito, and, even if the Commission has discretionary authority to conduct such a hearing, it should not do so in response to the Petition.

The Petition asserts that the hearing is being requested " pursuant to the Atomic Energy Act of 1954, as amended (ACT), 42 U.S.C. S 2282, and the Nuclear Regulatory Commission's (NRC) rules of practice as outlined in Title 10 of the Code of Federal Regulations . . . . In fact, however, neither the Act nor the regulations provide an opportunity for a hearing with respect to a civil monetary penalty for any person other than the person against whom a penalty is assessed. Section 234 of the Act (42 U.S.C. S 2282), cited in the Petition, authorizes the

'i Commission to impose such penalties and specifies certain basic procedures that the Commission must follow, including, initially, giving written notice of the proposed penalty. However, contrary to the apparent assumption of the Petition, the section does not provide for a hearing. It merely provides that the person L

subject to a proposed civil monetary penalty "shall.be granted an l

opportunity to show in writing, within such reasonable period as the Commission shall by regulation prescribe, why such penalty 1/(... continued) was in fact paid by electronic transmission to the NRC on July 23, 1991.

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should not be imposed." 42 U.S.C. S 2282(b) (1988). Nor does Section 189 of the Act (42 U.S.C. S 2239 (1988)), which provides for a hearing "upon the request of any person whose interest may be affected by" certain carefully enumerated types of proceedings, include proceedings for the imposition of ciril monetary penalties within that enumeration. 2/ Consequently, 2/ Even if Section 189 were otherwise applicable, the Petition does not establish that Mr. Saporito is a " person whose interest may be affected" within the meaning of that section; i.e., the Petition does not establish Mr.

i Saporito's standing. Bearing upon his claim to standing based on his residence in proximity to the St. Lucie Plant, the Petition states that Mr. Saporito is a resident of Palm Beach County and that he lives "within the NRC's (50 mile

' Zone of Interest') of the St. Lucie Nuclear Power Plant."

Also, it is signed in a manner which suggests that either he, personally, or an organization with which he appears to

! have a connection as a member of its Board of Directors i maintains a Post Office Box in Jupiter, Florida, about 40 l

miles from the St. Lucie Plant. Florida Power and Light Co.

(St. Lucie, Units 1 and 2), CLI-89-21, 30 NRC 325, 327 (1989). However, that is insufficient. In view of Mr.

i Saporito's " frequent changes of . . . address in a short l period of time," it is inappropriate simply to assume that I he actually resides where he receives his mail (Florida i Power & Light Company (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-91-2, 33 NRC 42, 47 (1991),

i appeal dismissed, CLI-91-5, 33 NRC 238 (1991)); and there are areas in Palm Beach County well over 50 miles from the i

St. Lucie site. In the circumstances, before triggering a hearing the Commission is entitled to more detail and clarity concerning Mr. Saporito's place of residence.

Moreover, it is submitted that, even if Mr. Saporito could establish that he lives close enough to the plant to have standing under some circumstances, that would be insufficient here. He has not demonstrated how he personally would suffer "an injury in fact" from either assessment of the civil monetary penalty to which the Petition refers or to a, now hypothetical, failure to assess that penalty. Ege Public Service Company of Indiana (Marble Hill Nuclear Generating Stations, Units 1 and 2), CLI-80-10, (continued...)

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the NRC is not under any statutory obligation to accord Mr.

Saporito the hearing he has requested.

Nor is the Commission required by its own regulations to provide Mr. Saporito such a hearing. Only one provision in the regulations relates to hearings with respect to the proposed imposition of a civil penalty, 10 CFR S 2.205(d). It provides that: "The person charged may, within twenty (20) days of the date of the order or other time specified in the order, request a hearing." (emphasis supplied). However, the regulation does not provide that anyone other than "[t]he person charged" may request a hearing. 2/ Since neither the Atomic Energy Act nor the Commission's regulations provide for the hearing requested by Mr.

Saporito, the Commission is not required to initiate that 2/(... continued) 11 NRC 438, 442 (1980); Ene also S_t. Lucie. Units 1 and 2, CLI-89-21, supra, 30 NRC at 330-31.

2/ As noted above, Section 234 of the Act does not provide for a hearing but only for "an opportunity (for the person subject to the proposed penalty) to show in writing . . .

why such penalty should not be imposed." The more liberal provision for a hearing contained in the regulation is consistent with the legislative history of Section 234 which indicates that the basic authority conferred upon the Commission by the Atomic Energy and Administrative Procedure Acts would ;ermit the Commission "to provide a full administrative hearing to any person charged with violation if such_p3rson so requested." Joint Committee on Atomic Energy, AZC Omnibus Legislation-1969, S. Rep. No. 553, 91st Cong., 1st Sess. (1969), reprinted in 1969 U.S. Code and Cong. & Admin. News 1607, 1617 (emphasis supplied).

Nothing in the legislative history contemplates the conduct of a hearing at the request of any person other than the person charged.

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l L hearing. Illinois v. Nuclear RecuJatory Commission, 591 F.2d 12, l t 13-16 (7th Cir. 1979).

Assuming, nevertheless, that, as a matter of discretion, the Commission has some basic authority to initiate the requested hearing, it should not do so. The Petition is far from clear concerning the subject matter of the hearing it requests and the relief ultimately desired. However, without taking issue with any of ths facts asserted in EA 91-062, it I >

appears to suggest that the requested hearing be conducted with a  !

view toward the imposition of more stringent enforcement action than the $37,500 civil penalty which has been assessed and paid.

However, the Commission has consistently held that it will not grant a hearing about an enforcement action at the request of a third person who advocates more severe enforcement action but l

l does not contest either the truth of the facts asserted by the Commission in support of the action it has taken or whether the i;

remedy selected by the Commission is supported by those facts.

E.ublic Service Company of Indiana (Marble Hill Nuclear Generating Stations, Units 1 and 2), CLI-80-10, 11 NRC 438, 441-42 (1980);

Boston Edison Co. (Pilgrim Nuclear Power Station), CLI-82-16, 16 NRC 44, 45-46 (1982), aff'd, Bellotti v. NRC, 725 F.2d 1380 (D.C.

Cir. 1983); Sequoyah Fuels Corporation (UF, Production Facility) .

CLI-86-19, 24 NRC 508 (1986). As stated in Marble Hill, the Commission has determined that:

It is reasonable to draw the line, in specific cases, at whether or not further, more drastic remedies are called for.

The reasons for this are simple. We believe thLt public health and safety is best served by concentrating inspection and enforcement resources on actual field inspections and related scientific and engineering work, as opposed to the conduct of legal proceedings.

This consideration calls for a policy that encourages licensees to consent to, rather than contest, enforcement actions. Such a policy would be thwarted if licensees which consented to enforcement actions were routinely subjected to formal proceedings possibly leading to more severe or different enforcement actions. Rather than consent and risk a hearing on whether more drastic relief was called for, licensees would, to protect their own interests, call for a hearing on each enforcement order to ensure that the possibility of less severe action would also be considered. The end result would be a major diversion of agency resources from project inspections and engineering investigations to the conduct of hearings.

Marble Hill, CLI-80-10, 11 NRC at 441-42. Both the courts and the Commission have recognized the diversionary consequences of granti.ng raquests such as those contained in the Petition and that they "'would result in a hearing virtually as lengthy and wide-ranging as if [ Petitioners) were allowed to specify the relevant issues themselves.' Hellotti v. NRC, supra, 725 F.2d at 1382." Sequoyah, CLI-86-19, 24 NRC, supra, at 514. A/

A/ Each of the cited proceedings involved enforcement orders governing activities under a license or permit. We have discovered no reported proceeding in which a third party requested a hearing with respect to the proposed assessment of a civil monetary penalty against a licensee. However, it (continued...)

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The reasons underlying the policy described in Marble Hill are fully applicable to this situation. The action with respect to which Mr. Saporito requests a hearing has been i completed. Not only has the civil monetary penalty been  ;

assessed, it has been paid. If, after having made the election  ;

v to pay the penalty and satisfied the Commission about the corrective action taken, a licensee, nevertheless, remained  ;

exposed to the expense, effort and risk involved in a hearing, there would, as pointed out in Marble Hill, be little incentive to consent to a civil monetary penalty.

The Petition should be denied.

Respectfully submitted,

//U ,

t Harold F. Reis' ,

Damien A. Lee Newman & Holtzinger, P.C. -

1615 L St., N.W.  !

Washington, D.C. 20036 Dated: August 2, 1991 Attorneys for Florida Power & Light Company L

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A/(... continued) seems clear that the principles established in the cited proceedings should be equally applicable to enforcement proceedings relating to civil monetary penalties, b

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i 91 AUG -5 P4 :22 UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION . - l

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In the Matter of )  ;

) Docket No. 50-389 i FLCRIDA. POWER-& LIGHT )  ;

COMPANY ) License No. NPF-16  ;

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-(St. Lucie Plant, ) (EA-91-062) {

' Unit No. 2) )  !

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NOTICE OF APPEARANCE OF' COUNSEL  !

, i Notice is.hereby given that Damien A.. Lee enters an [

.I appearance as. counsel for Florida Power & Light Company, et al. [

in the above-captioned proceeding.  !

i Name: Damien A. Lee  !

-i Adoress: Newman & Holtzinger, P.C. i

, -1615 L St., N.W.  ;

Suite 1000  :

Washington, D.C. 20036 3:

Telephone: (301).966-6600 Admissions: Bar of the State of Pennsylvania Name of Party: Florida Power & Light Company Dated: August.2, 1991 D a'dfi e n A . Lee

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Newman & Holtzinger, P.C. l 1615 L St., N.W.

Washington, D.C. 20036 l

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'91 AUG -5 P 4 :22 UNITED STATES OF AMERICA ,, , 7, ,

NUCLEAR REGULATORY COMMISSION ru r-

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In the Matter of )

) Docket No. 50-389 FLORIDA POWER & LIGHT )

COMPANY ) License No. NPF-16

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(St. Lucie Plant, ) (EA 91-062)

Unit No. 2) )

)

HQTICE OF APIEARANCE OF COUNSEL Notice is hereby given that Harold F. Reis enters an appearance as counsel for Florida Power & Light Company, et al.

in the above-captioned proceeding.

Name: Harold F. Reis Address: Newman & Holtzinger, P.C.

1615 L St., N.W.

Suite 1000 Washington, D.C. 20036 Telephone: (301) 966-6600 Admissions: United States Court of Appeals for the District of Columbia Circuit Name of Party: Florida Power & Light Company Dated: August 2, 1991 M .

//

Ha'rold F. Reis Newman & Holtzinger, P.C.

1615 L St., N.W.

Washington, D.C. 20036

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[f7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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In the Matter of )

) Docket No. 50-389 FLORIDA POWER & LIGHT- )

COMPANY. ) License No. NPF-16

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(St.-Lucie Plant, ) (EA-91-062)

Unit No. 2) )

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l CERTIFICATE OF SERVICE  !

I hereby certify that copies of " Licensee's Opposition

.to Petition.for Hearing and Leave to Intervene" and two Notices

-of Appearance in the above-captioned proceeding were served on thelfollowing by deposit in the United States mail, first class, y properly stamped and addressed, on the date shown below: 'I

. Office of-the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Chief, Docketing and Service Section

. (Original plus two copies) 1 Thomas J..Saporito, Jr.

P.O. Box 1994 Jupiter, FL 33468 Office of the General Counsel

< U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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Janice E. Moore, Esq.

Marian L. Zobler, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 2055a Dated: August 2, 1991 Harold F. Reis

!sk Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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In the Matter of )

) Docket No. 50-389 FLORIDA POWER & LIGHT )

COMPANY ) License No. NPF-16

)

(St. Lucie Plant, ) (EA 91-062)

Unit No. 2) )

)

CERTIFICATE OF SFkv1CE I hereby certify that copies of " Licensee's Opposition to Petition for Hearing and Leave to Intervene" and two Notices of Appearance in the above-captioned proceeding were served on the following by deposit in the United States mail, first class, properly stamped and addressed, on the date shown below:

Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Chief, Docketing and Service Section (Original plus two copies)

Thomas J. Saporito, Jr.

P.O. Box 1994 Jupiter, FL 33468 Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

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Janice E. Moore, Esq.

Marian L. Zobler, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission ,

Washington, D.C. 20555 '-

Dated: August 2, 1991 #/ /

Harold F. Reis .

Newman & Holtzinger, P.C.

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036 '

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