ML071790581
| ML071790581 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 06/28/2007 |
| From: | Annette Vietti-Cook NRC/SECY |
| To: | |
| SECY RAS | |
| References | |
| 50-255-LT, CLI-07-22, RAS 13811 | |
| Download: ML071790581 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED 06/28/07 COMMISSIONERS SERVED 06/28/07 Dale E. Klein, Chairman Edward McGaffigan, Jr.
Jeffrey S. Merrifield Gregory B. Jaczko Peter B. Lyons
)
In the Matter of )
)
CONSUMERS ENERGY COMPANY, )
NUCLEAR MANAGEMENT COMPANY, LLC, )
ENTERGY NUCLEAR PALISADES, LLC, AND ) Docket No. 50-255-LT ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Palisades Nuclear Power Plant) )
_________________________________________)
CLI-07-22 MEMORANDUM AND ORDER On May 7, 2007, Michigan Environmental Council and the Public Interest Research Group in Michigan (Petitioners) filed a Petition for Reconsideration of CLI-07-18, a decision denying their joint petition to intervene in this license transfer proceeding. We based the denial in CLI-07-18 on our findings that Petitioners lacked both representational and organizational standing.
Regarding representational standing, we concluded that Petitioners had submitted no evidence that any of their members had requested representation by either organization. We also concluded that their general references to members proximity to the Palisades facility were too imprecise to meet our requirements for proximity-based standing.1 Regarding organizational standing, we ruled that Petitioners inappropriately sought to 1
CLI-07-18, 65 NRC at ___-___, slip op. at 8-10 (April 26, 2007).
play the role of private attorney general -- a role not contemplated under Section 189a of the Atomic Energy Act -- which grants a hearing right to only those petitioners with an interest in the proceeding.2 We also concluded that neither Petitioner had shown any risk of discrete institutional injury to itself, other than the general environmental and policy interests of the sort we repeatedly have found insufficient for organizational standing.3 At the outset, we note that the Petition for Reconsideration exceeds the ten-page limit specified in our regulations.4 But rather than forcing Petitioners to re-file their petition, or denying it, we reject the petition on its merits. The reconsideration petition does not satisfy our rigorous regulatory standard that [a] petition for reconsideration must demonstrate a compelling circumstance, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid.5 Petitioners seeking reconsideration of a Commission order must demonstrate that the Commission has committed clear error, must do so by raising new arguments, and must not previously have been able to make those arguments.6 A. Representational Standing In an effort to establish representational standing based on the proximity of their members to the Palisades facility, Petitioners have attached to their Petition for Reconsideration two affidavits from their top administrators asserting that some of their members live within the 2
42 U.S.C. § 2239(a).
3 Id., 65 NRC at ___-___, slip op. at 10-12.
4 10 C.F.R. § 2.323(e), incorporated by reference into 10 C.F.R. § 2.341(d),
incorporated by reference into 10 C.F.R. § 2.345(a)(2). The last of these regulations governs petitions for reconsideration of final orders such as CLI-07-18.
5 10 C.F.R. § 2.345(b). See also Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-06-27, 64 NRC 399, 400-01 (2006).
6 Consumers Energy Co. (Big Rock Point ISFSI), CLI-07-__, 65 NRC __ (June _, 2007).
service territories of Consumers Energy,7 or in close proximity to the Palisades facility,8 or within the same zip code as the location of the Palisades nuclear plant facilities.9 These general assertions of proximity are, in several respects, insufficient to establish proximity-based standing.
In making these assertions, Petitioners do not allege any error in CLI-07-18 that could not have been reasonably anticipated (as required under 10 C.F.R. § 2.345(b)). Nor do they claim that CLI-07-18 is invalid (also required under that same section), given the record on which it was based. Instead, they seek to supplement the record to correct the deficiencies of their Petition to Intervene. This eleventh-hour attempt is improper because it violates our prohibition against raising new arguments in a motion for reconsideration.10 It is not acceptable in NRC practice for a petitioner to claim standing based on vague assertions, and when that fails, to attempt to repair the defective pleading with fresh details offered for the first time in a petition for reconsideration.
Also, Petitioners latest assertions here are not supported by affidavits or other forms of authorization by the members who purportedly live close to Palisades, empowering either Petitioner to represent their interests. We have explained this authorization requirement in our case law -- most recently in CLI-07-18 itself.11 This longstanding requirement precludes Petitioners from persuasively claiming either that they could not have . . . reasonably 7
Affidavit of Dr. Michael P. Shriberg at 3 (May 7, 2007) (regarding Public Interest Research Group in Michigan), attached as Exhibit C to Petition for Reconsideration.
8 Affidavit of Linda Pollack at 3 (May 7, 2007) (regarding Michigan Environmental Council), attached as Exhibit B to Petition for Reconsideration.
9 Shriberg Affidavit at 3. See also Pollack Affidavit at 3.
10 Diablo Canyon, CLI-06-27, 64 NRC at 402.
11 CLI-07-18, 65 NRC at __, slip op. at 8-9, and cited authority.
anticipated12 the need to submit evidence of authorization, or that CLI-07-18 erred in citing this omission as a reason why Petitioners had not shown proximity-based standing.
Further, Petitioners new assertions of proximity are still too general, and Petitioners ignore CLI-07-18's discussion about the need to specify the distance between a licensed facility and a petitioners (or its members) home, work or activities. In CLI-07-18, we expressly indicated that the first two proffered justifications for proximity-based standing described above (concerning service territory and in close proximity) were too vague to pass muster.
Specifically, we rejected as insufficient Petitioners assertion that some of their members liv[ed]
within Consumers service territory13 and their claim that members live work, or engage in recreation adjacent and near the . . . facilities.14 And regarding the latter, we also cited two NRC decisions rejecting proximity-based standing arguments based on claims of domiciles close to transportation routes for nuclear materials, and activities in close proximity to a regulated facility.15 So again, our precedent on this issue and our discussion in CLI-07-18 preclude Petitioners from meeting the reconsideration standard that their argument address an error in CLI-07-18 that could not have been reasonably anticipated.16 Likewise, we reject Petitioners third standing claim based on their members domiciles lying within the same zip code as the Palisades facility. This is far too imprecise a basis on which to grant proximity-based standing. We would be unwise to establish a same zip code test for standing, given that the sizes of zip-code areas vary greatly throughout the country.
12 10 C.F.R. § 2.345(b).
13 Id., 65 NRC at __, slip op. at 10.
14 Id., 65 NRC at __, slip op. at 10.
15 Id., 65 NRC at __, slip op. at 10 n.27.
16 10 C.F.R. § 2.345(b).
B. Organizational Standing We indicated in CLI-07-18 that a petitioners claim of standing (including organizational standing) must include a demonstration of actual or threatened injury.17 Petitioners have still not made this demonstration.
Petitioners claim injury stemming from Consumers Energys alleged failure to contribute to the federal governments Nuclear Waste Fund, the Palisades decommissioning fund and the Big Rock Point decommissioning fund several hundred million dollars that Consumers Energy had collected from Michigan ratepayers. They also assert that they are injured by the fact that those funds were unsecured on [Consumers Energys] books.18 We see three problems with these claims of injury. Initially, as we explained in CLI-07-18, issues involving the Big Rock Point ISFSI license transfer fall outside the scope of this proceeding.19 The Big Rock Point ISFSI proceeding was the subject of a separate notice in the Federal Register20 and has been addressed in a separate, now-closed adjudication.21 Further, Petitioners claims of injury stem from the purported financial transgressions of the current owner, Consumers Energy. Yet, the relevant fiscal issues in a license transfer case concern the financial qualifications and assurances of the future owner, Entergy.
Consequently, this license transfer proceeding is simply the wrong forum in which to proffer Petitioners arguments. To the extent they believe Consumers Energy has violated any of our 17 CLI-07-18, 65 NRC at __, slip op. at 7.
18 Petition for Reconsideration at 7-9.
19 65 NRC at ___, slip op. at 6-7.
20 72 Fed. Reg. 4302 (Jan. 30, 2007).
21 See Consumers Energy Co. (Big Rock Point ISFSI), CLI-07-19, 65 NRC ___ (April 26, 2007), reconsidn denied, CLI-07-__, 65 NRC __ (June 28, 2007). Petitioners in the present proceeding did not file a Petition to Intervene in the Big Rock Point ISFSI adjudication.
financial-qualification or financial-assurance regulations, they may file an enforcement petition under 10 C.F.R. § 2.206.
Finally, Petitioners have given us no reason to question our prior ruling that they:
seek to play the role of a private attorney general -- a role that AEA Section 189 -- which grants a hearing right to those with an interest in the proceeding --
does not contemplate. Neither . . . [p]etitioner has shown any risk of discrete institutional injury to itself, other than the general environmental and policy interests of the sort we repeatedly have found insufficient for organizational standing.22 In sum, we see no reason to change our ruling in CLI-07-18 that Petitioners have failed to demonstrate either representational or organizational standing to intervene in this proceeding. We therefore deny their Petition for Reconsideration.
Separately, on May 22, 2007, we received Van Buren Countys and Covert Townships Notice of Withdrawal. Their withdrawal, when combined with todays denial of the Petition for Reconsideration, removes the last actual or potential intervenors from this adjudication. Given this development, we dismiss this adjudicatory proceeding.
For the Commission
/RA/
Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland, this 28th day of June, 2007.
22 CLI-07-18, 65 NRC at __, slip op. at 11-12 (footnotes omitted; emphasis in original).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
CONSUMERS ENERGY COMPANY, ) Docket No. 50-255-LT NUCLEAR MANAGEMENT COMPANY, LLC and )
ENTERGY NUCLEAR PALISADES, LLC and )
ENTERGY NUCLEAR OPERATIONS )
)
(Palisades Nuclear Plant) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-07-22) have been served upon the following persons by electronic mail this date, followed by deposit of paper copies in the U.S. mail, first class, or through NRC internal mail.
Office of Commission Appellate Administrative Judge Adjudication Michael C. Farrar, Presiding Officer U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of the General Counsel Douglas E. Levanway, Esq.
Mail Stop - O-15 D21 Wise, Carter, Child, and Caraway U.S. Nuclear Regulatory Commission P.O. Box 651 Washington, DC 20555-0001 Jackson, MS 39205 E-mail: ogclt@nrc.gov E-mail: del@wisecarter.com Ahren S. Tryon, Esq.
LeBoeuf, Lamb, Greene & MacRae 1875 Connecticut Avenue, NW, Suite 1200 Washington, DC 20009 E-mail: atryon@llgm.com Arunas T. Udrys. Esq.
Consumers Energy Company One Energy Plaza Jackson, MI 49201 E-mail: atudrys@cmsenergy.com
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 28th day of June 2007