ML20138A893

Response Opposing Petition of Air & Water Pollution Patrol for Leave to Intervene & Request for Hearing Re Amend 1 to License NPF-39.W/Certificate of Svc

ML20138A893
Person / Time
Site:	Limerick
Issue date:	03/17/1986
From:	Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#186-458 OLA-OLA-2, NUDOCS 8603200204
Download: ML20138A893 (13)

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DOCHETED ustmc March 17,.4p8j.y g q .7 UNITED 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 Nos. 50-352 GWr -I

)- (Check Valves) OLA/oLA-3 (Limerick Generating Station, )

Unit 1) )

RESPONSE OF NRC STAFF IN OPPOSITION TO PETITION AND REQUEST FOR A HEARING BY THE AIR AND WATER POLLUTION PATROL REC ARDING LICENSEE'S AMENDMENT REQUEST NO.1

1. INTRODUCTION On February 24, 1986, the Air and Water Pollution Patrol (AWPP) filed a petition to intervene and request for a hearing with regard to Amendment No.1 to Facility Operating License NPF-39. AWPP's concerns involve the Licensee's request for a one-time schedular amendment from testing certain excess flow check valves in certain instrumentation lines for a period of approximately fourteen weeks.1 For the reasons set forth below, the NRC staff opposes AWPP's petition and urges that it be denied .

II. BACKGROUND The circumstances surrounding the Licensee's request for Amendment No.1 and the Staff's decision to issue the amendment and to determine j i

1_/ Amendment No. I was issued by the Staff on February 6,1986. A copy of the amendment was provided to the Licensing Board in a letter from Joseph Rutberg, Assistant Chief Hearing Counsel, dated March 7,1986.

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that the issuance did not involve a significant hazard are set forth in the Staff's reply to FOE's request for intervention arkd a hearing and will not be repeated here. -

The NRC's Federal Register Notice of Licensee's amendment request occurred on December 26, 1985 and stated that any comments and/or peti-tions to intervene must be received by January 2G, 1986. A copy of this Notice was sent to Edward G. Bauer, Jr. Vice President, Philadelphia Electric Co. by letter from the NRC on January 27, 1986 and was also sent to the Limerick Service List including AWPP. AWPP claims, on the other hand, thr.t it first became aware of this amendment by virtue of the receipt of the Staff's letter to Mr. Bauer that it received from Mr. Anthony, the representative of FOE on February 21, 1986. Petition at 1. Through inadvertence a copy of the Federal Register Notice was not sent to AWPP until it was sent a copy of the letter to Mr. Bauer from the Staff. However, AWPP received both constructive notice (publication in the Federal Register) and actual notice (the letter to Mr. Bauer) well in advance of the time that he actually filed the petition to intervene and request for a hearing. In addition, AWPP was sent a copy of the Appli-cation for Amendment. b On February 24, 1986, approximately four weeks after the date for filing petitions set forth in the Federal Register Notice, AWPP filed its

-2/ Response of NRC Staff in Opposition to Petition to Intervene And Request For a Hearing by Anthony / FOE Regarding Licensee's Amend-ment Request, dated February 25, 1986.

~3/ Letter from Eugene J. Bradley to Mr. Harold Denton, with copies to the Service List including Mr. Romano, dated December 18, 1985, provided to the Licensing Board by letter dated March 6,1986, from Troy B. Conner, Jr.

petition to intervene and request for a hearing. AWPP, without specifi-cally addressing the criteria in 10 C.F.R. S 2.714(a)(1), states that the reason for its delay was due to the fact that it was not until February 21, 1986 that it became aware that the NRC was considering the issuance of an amendment to Operating License NPF-39, the date that AWPP received a copy of the Staff's January 27, 1986 letter to PECO's Mr. Bauer from Mr. Anthony.

Ill. DISCUSSION A. The Standards for Intervention Section 189a of the Atomic Energy Act of 1954, as amended, 4 ' U.S.C. S 2239(a), provides that:

In any proceeding under [the] Act, for the granting, sus-pending, 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.

10 C.F.R. Section 2.714(a)(2) of the Commission's Rules of Practice, re-quires that a petition to intervene in a Commission proceeding set forth with particularity:

(1) the interest of the petitioner in the proceeding; (2) how that interest may be affected by the results of the proceeding; and (3) the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.

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In order for intervention to be granted, the Atomic Safety and Licensing Board designated to rule on petitions to intervene and/or requests for hearing must find that the petition satisfies these standards. A In determining whether the requisite interest prescribed by both Section 189a of the Atomic Energy Act and Section 2.714 of the Commission's Rules of Practice is present, the Commission has held that contemporaneous judicial concepts of standing are controlling. Portland General Electric Co. (Pebble Springs Nuclear Plant , Units 1 and 2),

CLI-76-27, 4 NRC 610, 613-14 (1976). Thus, there must be a showing (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 Atomic Energy Act - or the National Environmental Policy Act. S See also Warth v. Seldin, 422 U.S.

490 (1975); Sierra Club v. Morton, 405 U.S. 727 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970).

4_/ Intervention may also be granted as a matter of discretion to some petitioners who are not entitled to intervention as a matter of right if the petitioner can show that the Commission's specific criteria weigh in favor of discretionary intervention. See Portland General Electric Company, et al. (Pebble Springs Nuclear Plant , Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976). As described herein, the NRC staff believes AWPP has failed to satisfy the criteria set forth in 10 C.F.R. S :'.714 and has not otherwise indicated how AWPP would be helpful in creating a sound record in this proceeding or otherwise merit discretionary intervention. Id. Therefore, the NRC staff does not intend to discuss discreFonary intervention further.

5/ 42 U.S.C. S 2011 et seq.

6/ 42 U.S.C. S 4321 et seq.

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" Abstract concerns" or a " mere academic interest" in the matter which are not accompanied by some real impact on a petitioner will not confer standing. See, In the Matter of Ten Applications for Low-En-riched Uranium Exports to EURATOM Member Nations, CLI-77-24, 6 NRC

! 525, 531 (1977); Pebble Springs, CLI-76-27, supra, 4 NRC at 613. Rath-er, the asserted harm must have some particular effect on a petitioner, Ten Applications, CLI-77-24, supra, and a petitioner must have some di-rect stake in the outcome of the proceeding. See Allied-General Nuclear Services, et al. (Barnwell Fuel Receiving and Storage Station) ,

ALAB-328, 3 NRC 420, 422 (1976).

An organization may gain standing to intervene based on injury to itself. Edlow International Company, CLI-76-6, 3 NRC 563, 572-74 (1976). If the organization seeks standing on its own behalf, it must establish 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. Ten Applications, CLI-77-24, supra, at 531. On the other hand, an organization may establish standing through members of the organization who have an interest which may be affected by the outcome of the proceeding. Public Service Co. of Indiana, Inc. (Marble 1I111 Nu-clear Generating Station , Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976). When an organization claims that its standing is based on the interests of its members, the organization must identify one or more indi-vidual members (by name and address) whose interests may be affected and give some concrete indication that such members have authorized the organization to represent their interests in the proceeding. Houston Lighting and Power Company (Allens Creek Nuclear Generating Station ,

Unit 1), ALAB-535, 9 NRC 377, 393-97 (1979); Public Service Electric I

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and Gas Company (Salem Nuclear Generating Station , Units 1 and 2),

ALAB-136, 6 AEC 487, 488-89 (1973); Duquesne Light Company, et al.

(Beaver Valley Power Station , Unit No. 1) , ALAB-109, 6 AEC 243, 244 at n.2 (1973). Specific representational authorization of a member with personal standing is not required where the sole or primary purpose of the petitioning organization is to oppose nuclear power in general or the particular facility at bar. Allens Creek, ALAB-535, supra, at 396. U Further, it should be noted that the Commission's Rules of Practice provide that petitionn .to intervene not filed within the time period set forth in the Federal Register Notice will not be entertained absent a de-termination that the five factors set forth in 10 C.F.R. S 2.714(a)(1) weigh in favor of granting the petition. The factors to be considered are: (i) whether good cause ic shown for the failure to file on time; (ii) the availability of other means to protect the petitioner's interest; (iii) the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record; (iv) the extent to which

~7/ Further, under Section 2.713 of the Commission's Rules of Practice.

a " partnership, corporstion or unincorporated association may be represented by a duly authorized member or officer, or by an attor-n ey-a t-law . " 10 C.F.R. S 2.713(b) (smphasis added). Thus, where an organization is represented by one of its members, the member must demonstrate authorization by that organization to represent it.

It is clear that groups may not represent persons other than their own members, and individuals may not assert the interest of other persons. Long Island Lighting Co. (Shoreham Nuclear Power Sta-tion , Unit 1), LBP-77-11, 5 NRC 481, 483 (1977); Watts Bar, ALAB-413, supra at 1421; Detroit Edison Company (Enrico Fermi Atomic Power Plant , Unit No. 2), ALAB-470, 7 NRC 473, 474 n.1 (1978). There is, under the Atomic Energy Act and the Commis-sion's regulations, no provision for private attorneys general. Port-land General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), ALAB-333, 3 NRC 804, 806 n.6 (1976); Long Island Lighting Company, LBP-77-11, supra, at 483.

2 the petitioner's interest will be represented by existing parties ; and (v) the extent to . which the petitioner's participation will broaden the issue or delay the proceeding.

B. Evaluation of AWPP's Petition AWPP's petition fails to satisfy the requirements for intervention in that it does not contain the requisite demonstration of compliance with 10 C.F.R. S 2.714 by establishing interest, how that interest may be af-fected and the specific aspect or aspects of the subject matter of the pro-ceeding that it wishes to pursue.

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 pro-

ceeding. 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 dem-onstrating that the requirements for intervention are met in this proceed-ing.- Philadelphia Electric Co. (Peach Bottom 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), LDP-73-26, 6 AEC 612, 616 (1973). AWPP also- fails to identify the address of a mem-her 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, ALAB-522, supra; and, Allens Creek, ALAD-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.,

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at 570-574; Ten Applications, CLI-77-24, supra., at 531. No effort is made by AWPP in establishing how its interest may be affected by this arlendment or to indicate why the Staff was incorrect in concluding that there is reasonable assurance that the health and safety of the public will not be endangered by the fourteen week extension. AWPP's generalized statements, which are without any basis, are not enough to meet its.obli-gations under 10 C.F.R. S 2.714,

2. Aspect AWPP asserts that any extension of time required to determine the ability of the instrumentation lines to function properly would pose health and safety risks because of the safety significance of these lines.

Petition, at 2. Ilowever, this generalized statement concerning the impor-tance of the instrumentation lines is inadequate to provide the specificity that is required to establish the aspect or aspects AWPP wishes to pursue in connection with the pending amendment. Amendment No. I deals with surveillance tests which would be conducted periodically to determine whether excess flow check valves will respond functionally to check the flow of fluid in the instrumentation lines upon being subjected to exces-sive differential pressure across the valve. With respect to this amend-ment, AWPP makes no effort to address the Staff's conclusion that the extension of time for surveillance by fourteen weeks does not significantly increase the possibility that an undetected failure will occur in the in-strumentation line excess flow check valves involved in the extension.

Safety Evaluation, Support Amendment No.1, Facility Operating Licensing No. NPF-39, Philadelphia Electric Company (Limerick Generating Station, Unit No.1) at 2, (February 6,1986).

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o Reference by AWPP to prior Licensee Event Reports and previously litigated contentions provide no support for its request for intervention and a hearing in connection with the pending amendment.

6 Such arguments do not provide the parties with the aspect or aspects of

this particular amendment that AWPP wishes to pursue. Similarly, with I

respect to AWPP's reliance upon the Torrey Pines Technology Study,

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which focused on, inter alia, the effects on the instrumentation lines of whipping pipes that experienced a rupture, AWPP has made no effort to establish a nexus between the amendment and the Torrey Pines report. 8/

For the above reasons, AWPP has failed to adequately provide an appropriate aspect or aspects which AWPP wishes to pursue in a hear-ing that would be initiated in connection with this amendment. l C. The Standards Governing Untimely Interventions Have Not Been Met At the outset, it should be noted that AWPP makes no effort to spe-cifically address the five factors set forth in 10 C.F.R. S 2.714 that j must be balanced by the Licensing Board when ruling on a late petition.

Only one of the factors, good-cause, can be arguably said to have been raised in AWPP's petition.

1. Good Cause The first factor to be considered when considering a late-filed -

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petition is whether good cause has been shown for filing out of time. In this case, AWPP has indicated that the reason for the delay in filing a petition to intervene and a request for hearing was the fact that AWPP

-8/ This issue was the subject of a Staff review and was found to be resolved as stated in Supplement No. 4 to the Limerick Safety Evalu-ation Report, Section 3.6.2 (May 1985). In addition to the lack of r nexus, AWPP's remarks are also without basis.

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had not become aware of the amendment until a copy of the letter dated January 27, 1986 to Mr. Bauer from the NRC enclosing a copy of the Federal Register Notice, was received from Mr. Anthony.

In this case the NRC's Federal Register Notice of Licensee's amendment request occured on December 26, 1985 and stated that any comments and/or petitions to intervene must be received by January 26, 1986. Furthermore, a copy of the January 27, 1986 letter to Mr. Bauer was sent to the Limerick Service List, which includes AWPP. Moreover, the amendment application was also served upon AWPP.

Accordingly, AWPP had notice of the pending amendment re-quest well in advance of the time within which petitions for intervention and requests for a hearing were to be filed , both by actual notice through the receipt of the amendment application and by constructive notice in the Federal Register. The fact that AWPP asserts that it was not until it received the information from Mr. Anthony that it became aware of Licensee's amendment request and determined to file a petition to intervene and request a hearing does not provide the requisite good cause for a late filing. The time to file had clearly expired and there is no valid justification for AWPP's failure to file on time.

2. The Remaining Factors The other factors to be considered in connection with a late filed petition were not addressed by AWPP. The Staff could only surmise what arguments could be made to support the acceptance of the late filed i petition and, unwilling to make such an effort in connection with AWPP's i petition, concludes that these factors should be weighed against AWPP.

In a situation quite similar to the instant matter, an intervenor filed his petition to intervene and request for a hearing eight days late and failed j l

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. to address the 10 C .F .R . S 2.714(a) lateness factors, in its Petition.

The Appeal Board held that, the intervention petition was correctly denied because it was untimely and because the Petitioner failed to address the lateness factors. Boston Edison Company (Pilgrim Nuclear Power Sta-tion), ALAB-816, 22 NRC 461, 4G5-466 (1985).

In summary, the balancing of the lateness factors set forth in 10 C.F.R. S 2.714 clearly weigh against granting AWPP's late filed re-quest for intervention and hearing.

IV. CONCLUSION For the reasons set forth above, AWPP's late filed petition to inter-vene and request for a hearing fails to meet the standards for interven-tion and should be denied.

Respectfully sutmitted, W/A C enjamin II. Voglerr >

Counsel for NftC Staff Dated at Bethesda, Maryland this 17th day of thrch,1986 .

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a UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USNRC; BEFORE TIIE ATOMIC SAFETY AND LICEN]E yNG gl@3 ;)g In the Matter of ) 0FFICE OF ha mn*

) 00CKETittG & SERVICf.

PIIILADELPIIIA ELECTRIC COMPANY ) Docket No. NY52 OLA-1

) (Check Valves)

(Limerick Generating Station, )

Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " 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" 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 mail system, this 17th day of March,1986:

Ivan W. Smith, Chairman (2) Mr. Edward G. Bauer, Jr.

Administrative Judge Vice President & General Counsel l Atomic Safety and Licensing Board Philadelphia Electric Company U.S. Nuclear Regulatory Commission 2301 Market Street Washington, D.C. 20555* Philadelphia, PA 19101 Dr. Richard F. Cole Troy B. Conner, Jr. , Esq.

Administrative Judge Mark J. Wetterhahn, Esq.

Atomic Safety and Licensing Board Conner and Wetterhahn U.S. Nuclear Regulatory Commission 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20555* Washington, D.C. 20006 Mr. Gustave A. Linenberger, Jr. Mr. Marvin I. Lewis

, Administrative Judge 6504 Bradford Terrace Atomic Safety and Licensing Board Philadelphia, PA 19149 U.S. Nuclear Regulatory Commission Washington, D.C. 20555* Joseph II. White, III 15 Ardmore Avenue Mr. Frank R. Romano Ardmore, PA 19003 Air and Water Pollution Patrol 61 Forest Avenue Ms. Phyllis Zitzer, Precident Ambler, PA 19002 Ms. Maureen Mulligan Limerick Ecology Action Kathryn S. Lewis, Esq. 762 Queen Street l 1500 Municipal Services Bldg. Pottstown, PA 19464 15th and JFK Blvd. J Philadelphia, PA 19107 l

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9 Thomas Gerusky, Director Barry M. Hartman

• Bureau of Radiation Protection Governor's Energy Council Dept. of Environmental Resources P.O. Box 8010 5th Floor, Fulton Bank Building 300 N. 2nd Street Third and Locust Streets Harrisburg, PA 17105 liarrisburg, PA 17120 Spence W. Perry, Esq.

Director Associate General Counsel Pennsylvania Emergency Management Federal Emergency Management Agency Agency, Room 840 Basement,- Transportation & Safety 500 C Street, S.W.

Building Washington, D.C. 20472 IIarrisburg, PA 17120 Robert J. Sugarman, Esq.

Robert L. Anthony Sugarman, Denworth & Hellegers Friends of the Earth of the 16th Floor Center Plaza Delaware Valley 101 North Broad Street 103 Vernon Lane, Box 186 Philadelphia, PA 19107 Moylan, PA 19065 James Wiggins Angus R. Love, Esq. Senior Resident Inspector Montgomery County Legal Aid U.S. Nuclear Regulatory Commission 107 East Main Street P.O. Box 47

Norristown, PA 19401 Sanatoga, PA 19464 Charles W. Elliott, Esq. Atomic Safety and Licensing Brose & Poswistilo Board Panel 325 N 10 Street U.S. Nuclear Regulatory Commission Easton, PA 18042 Washington, D.C. 20555*

David Wersan Atomic Safety and Licensing Appeal Consumer Advocate Board Panel (5)

Office of Attorney General U.S. Nuclear Regulatory Commission 1425 Strawberry Square Washington, D.C. 20555*

l Harrisburg, PA 17120 Docketing and Service Section Jay Gutierrez Office of the Secretary Regional Counsel U.S. Nuclear Regulatory Commission USNRC, Region I Washington, D.C. 20555*

G31 Park Avenue King of Prussia, PA 19406* Gregory Minor MHB Technical Associates Steven P. Hershey, Esq. 1723 Hamilton Avenue Community Legal Services, Inc. San Jose, CA 95125 5219 Chestnut Street Philadelphia, PA 19139 Timothy R. S. Campbell, Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380 0

\{b b Josep \ R6tberg Agis"dnt Chief Hea 'ng Counsel

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