ML20059A924

Memorandum & Order (Intervention Petition).* Requests That Util Clarify Why Vague Footnote Added to Tech Specs Rather than Deleting Phrase High Jacket Water Temps. Certificate of Svc Encl.Served on 900816

ML20059A924
Person / Time
Site:	Vogtle
Issue date:	08/16/1990
From:	Bechhoefer C Atomic Safety and Licensing Board Panel
To:	GEORGIA POWER CO., GEORGIANS AGAINST NUCLEAR ENERGY, NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
CON-#390-10735 90-617-03-OLA, 90-617-3-OLA, LBP-90-29, OLA, NUDOCS 9008240147
Download: ML20059A924 (9)

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% 16 P1 :58 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION EE'!7 OrSECAETu y ATOMIC SAFETY AND LICENSING BOARD "M IQi,i /. +T'u Before Administrative Judges:

Charles Bechhoefer, Chairman . ERVED AUG 16 b9 Dr. James H. Carpenter Dr. Emmeth A. Luebke Docket Nos. 50-424-OLA In the Matter of 50-425-OLA GEORGIA POWER CO., 31 31 ASLDP No. 90-617-03-OLA (Vogtle Electric Generating Plant, Units 1 and 2)

Facility Operating Licenses NPF-68 and NPF-81 August 16, 1990 MEMORANDUM AND ORDER (Intervention Petition)

This proceeding involves the request of Georgia Power Co.,atAi, (hereinafter, Applicants) to amend the operating licenses for Vectle Electric Generating Plant, Units 1 and i

l 2, to revise t 4 Technical Specification (TS) Surveillance Requirement S 4.8.1.1.2h(6) (c) to permit the high jacket water temperature trip to be bypassed ,to minimize the L potential for spurious diesel generator trips in the emergency start mode. Pending before us is the petition to intervene filed on July 23, 1990 by Georgians Against Nuclear Energy ("GANE"). By responses dated August 7, 1990 and August 13, 1990, the Applicants and NRC Staff, respectively, have opposed the petition. Because we do not 900B240147 900816 PDR ADUCK 05000424 0 PDR h5o k

agree that the GANE petition may at this time be rejected on its face, we are hereby scheduling a prehearing conference to consider the petition (including any supplement filed) and setting a schedule for the filing of such a supplement.

The intervention provisions applicable to this proceeding are set forth in 10 C.F.R. 5 2.714(a), as amended effective September 11, 1989 (54 Fed. Reg. 33168, August 11, 1989). Under those rules, to be admitted to a proceeding, a potential intervenor must demonstrate that it has standing to participate and must proffer at leart one acceptable contention. Contentions need not appear in the intervention petition itself but, rather, are to be set forth in a supplement to the intervention petition filed not later than 15 days prior to the first prehearing conference. 10 C.F.R. 5 2.714 (b) (1) . Further, a potential intervenor may amend its intervention petition without leave of the Board until 15 days prior to the first prehearing conference. 10 C.F.R.

S 2.714 (a) (3) . As we shall see, it is this latter provision which saves th,e GANE petition from summary dismissal.

As the Applicant and Staff point ,out, the one-page petition before us fails to inclede an adequate demonstration of standing--ita2, a statement of the petitioner's interests in the proceeding and of how those interests may be affected by the-proceeding. GANE attempts to incorporate by reference statements of standing filed in other proceedings in which it has participated, both NRC and

l otherwise. Standing in a non-NRC proceeding is not relevant j i

to standing before us, at least in the absence of a showing 1

(not here made) of the equivalence of applicable standards j and an overlap of relevant issues. With respect to NRC, l

CANE participated in the operating license proceeding for l l

this facility, which took place a number of years ago and I

was of different scope than the current proceeding. Egg Georcia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 1

and 2 ) , LBP-84-3 5, 20 NRC 887, 916 (1984). GANE's interest '

in that proceeding may not be the same as its interest (if any) in this proceeding.

To establish standing to participate in a particular proceeding, a petitioner must show that the subject matter j of the proceeding will cause an " injury in fact" and that j the injury is arguably within the " zone of interests" protected by the Atomic Energy Act of 1954, as amended, or the National Environmental Policy Act, as amended. Sag Florida Power & Liaht Co. (St. Lucie Nuclear Power Plant, i Units 1 and 2), ,

CLI-89-21, 30 NRC 325, 329 (1989). Further, where (as here) a petitioner is a grou,p or organization, it may establish standing either through its own organizational interests or through the interests of its members. H_ouston Id2htina & Power Co. (South Texas Project, Units 1 & 2),

ALAB-549, 9 NRC 644, 647 (1979).

As a group, the proposed intervenor has failed to set forth how any of its interests, or those of its members, i

l will be affected by the instant proceeding. In past reactor i

licensing or license-amendment proceedings, residence or employment of a petitioner or group member withit. 50 miles of a facility has been sufficient to demonstrate that a person's interest may be affected by the proceeding. See, gigt, Tennessee Vallev Authority (Watts Bar Nuclear Plant, .

Units 1 and 2), ALAB-413, 5 NRC 1418, 1421, n.4 (1977);

South Texas, LBP-79-10, 9 NRC 439,443-44 (1979), aff'd.,

ALAB-549, supra; Vircinia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC '

54, 56 (1979).

In that connection, if representing the interests of a member, a group must demonstrate by affidavit of that member that it is authorized to represent that member. Moreover, the group must also demonstrate that it has authorized the particular representative appearing before us--in this case, I Ms. Glenn Carroll--to represent the group's interest. Egg South Texas, supra, ALAB-549, 9 NRC at 646. None of this type of information appears in the petition before us.

An intervention petition also must set forth the aspect or aspects of the subject matter of the proceed'.ng as to which the petitioner wishes to intervene. In the paragraph numbered 3 of its petition, GANE appears to ha.re satisfied this requirement, although we express no opinion at this time on the relevance to the proceeding of the various statements in the paragraph.

. . . i i

i e t The Applicants have taken the position that the proposed intervenors may not even be requesting a hearing but only seeking to comment on the Staff's "no significant 1

hazards condition" finding. We reject that approach.

Although GANE did not formally request a hearing, the group <

did seek to " intervene" and, in our view, could not have 4

practically done so without implicitly requesting a hearing in which to intervene. Further, any request filed on July 23, 1990, the date of GANE's petition, to address the l Staff's finding would have been untimely, whereas a request for a hearing filed on that date is timely filed. For these reasons, we are treating GANE's petition as a request for a  !

hearing and a petition fc- leave to intervene.

l In addition to the standing requirements outlined L above, to become a party to the proceeding GANE must file at least one acceptable contention. Under the revised criteria j referenced above, each contention must include, inter alia, a specific statement of the issue of law or fact to be raised or controverted. In addition, each contention must include the following information: ,

l (1) A brief explanation of the bases of the contention; 1

(2) A concise statement of the alleged facts or expert.

opinion which support the contention and on which .

the petitioner intends to rely in proving the contention at the hearing, together with references l to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts and expert opinion;

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(3) Sufficient information (which may include that provided under paragraphs (1) and (2) above) to show that a genuina dispute exists with the applicant on a material issue of law or fact. This showing must include references to the specific portions of the application (including the ,

applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if.the petitioner believes that the application fails to contain j information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief.

On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report. The petitioner can amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any supplements i relating thereto, that differ significantly from the data or conclusions in the applicant's L

document.

10 C.F.R. $ 2.714 (b) (2) .

As we have suggested, the GANE petition in its present form is grossly deficient in its statement of the group's standing.' We reiterate, however, that GANE has an unlimited right to amend its petition until 15 days prior to the first prehearing conference. Accordingly, we are hereby ,

scheduling a prehearing conference for Wednesday, September 19, 1990 and establishing Tuesday, September 4, 1990, as the final date on which GANE may submit (mail) an amendment to its petition to enhance its statement of standing. We are also establishing the same date, September 4, 1990, as the final date on which GANE may file a supplement .s its intervention petition setting forth the contentions it wishes to assert in this proceeding. We will

f permit the Applicants and Staff to respond to any supplementary GANE filings, as long as any such responses are received by us (by FAX if necessary) no later than  !

Friday, September 14, 1990. (If it appears that the  ;

statement of standing is clearly inadequate, based on the supplementary statement, we may dismiss the proceeding prior t to the prehearing conference.)

One further-matter warrants our brief comment at this time. By telephone, we requested the NRC Staff to forward to the Board copies of the Staff's Safety Evaluation Report, as well as the proposed license amendment submitted on I May 25, 1990. The Staff has complied with this request.

• After examining these materials, we request the Applicants to clarify why they added a vague footnote to their .

technical specifications rather than deleting the phrase "high jacket water temperatures" from Technical Specification Surveillance Requirement 4.8.1.1.2h(6) (c) . >

Purther, does the footnote in question permit bypass in ,

other than emergency conditions? The Applicants may respond to these questions at the prehearing conference or, if they wish, in any response they file to GANE's supplemented petition.

The September 19, 1990 prehearing conference is -

scheduled to be held at the Federal Trade Commission, Room 1010, 1718 Peachtree St., N.W., Atlanta, Georgia, beginning at 9:30 a.m. Although we are authorized to entertain

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limited appearance statements during the course of this proceeding, in accordance with 10 C.F.R. $ 2.715(a), we will ]

not permit oral statencnts at this particular conference.  ;

IT IS SO ORDERED.

FOR THE ATOMIC SAFETY  ;;

AND LICENSING BOARD LLL /2eJLL Charles Bechhoefer, C))dtirman ADMINISTRATIVE JUDGE Bethesda, Maryland August 16, 1990 4

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_ _ . - . .- : ___)

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. l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIS$10N 1

In the retter of i j GECRGIA POWER COMPANY, ET AL.  : Docket No.(s) 50-424/425-OLA i

(Voctie Electric Generating Plant, i Units i and 2)

CERTIFICATE OF SERVICE 1 hereby certify that copies of the foregoing LB L9P-90-29 M60 (INTV. PET.)

have been served upcn the following persons by U.S. mail, first class, except as etnerwise noted and in accorcance with the reautrements of 10 CFR Sec. 2.712. ,

i Atomic Safety and Licensing Appeal Administrative Juege Boarc Charles Bechhoefer. Chatrean U.S. Nuclear Regulatory Commissten atomte Safety ano Licensing soard Washington, OC 20555 U.S. Nuclear Requistory Commission Wasnington, DC 20555 Administrative Judge Administrative Judge James H. Carpenter Emmeth A. Luebke Atomic Safety and Licensing Board 5500 Friendship Boulevard. Act, 1923N U.S. Nuclear Regulatory Commission Chevy Chase, MD 20015 Washington, DC 20555 Charles A. BarthEsquire Arthur H. Domby Office of the General Counsel troutman, Sanders, Lockerman & Ashmore U.S. Nuclear Regulatory Commission Candler Buildinc, Suite 1400 l

Wasnington, DC 20555 127 Peachtreet Street N&.

Atlanta, GA 30303 l

Glenn Carroll Georgtens Against Nuclear Safety I

P.O. Box 6574 l Atlanta, GA 30306

! Dated at Rockville, Md. this 16 day of August 1990 Offic

. O N M .. ............

of the Secretary of the Cometssten l

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