ML20127D546

NRC Staff Response to San Luis Obispo Mothers for Peace Ltr Request for Hearing.* Presiding Officer Should Defer Ruling on Standing Pending Receipt of Any Amend Petitioners May File.W/Certificate of Svc & Notice of Appearance

ML20127D546
Person / Time
Site:	Diablo Canyon
Issue date:	09/08/1992
From:	Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#392-13209 OLA-2, NUDOCS 9209150085
Download: ML20127D546 (12)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i;2 $" -- g P1f6 8

IEEORli_TUh COMMISELON s

in the Matter of ) .

) Docket No. 50 275 OLA _ Z

) Docket No. 50 323 OLA PACIFIC GAS & ELECTRIC CO. )

(Diablo Canyon Nuclear Power Plant, ) (Construction Period Recapture)

Units 1 & 2) )

e NRL STAFF RESPONSE TO SAN LUIS Ol31SPO MOTHERS FOR PEACE'S LETl'ER REQUEST FOR HEARING 4

r Ann P. Hodgdon Counsel for NRC Staff

. September 8,1992 4

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in the Matter of ) ,

) Docket No. 50 275 OLA _ Z

) Docket No. 50-323 OLA PACIFIC GAS & ELECTRIC CO. )

(Diablo Canyon Nuclear Power Plant, ) (Constniction Period Recapture)

Units 1 & 2) )

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'NRC STAFF RESPONSE TO SAN LUIS OlllSPO' MOTHERS i' FOR PEACE'S LL9TER REQUEST FOR HEARING

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UNITED STATES OF Ah! ERICA NUCLEAR REGULATORY COhth11SSION IlEFORE Tile COhih11SSION In the hiatter of ) .

) Docket No. 50-275 OLA

) Docket No. 50-323 01 A PACIFIC GAS & El ECTRIC CO. )

(Diablo Canyon Nuclear Power Plant, ) (Construction Period Recapture)

Units 1 & 2) )

NRC STAFF RESPONSE TO SAN LUIS ODISPO h10T11ERS FOR PEACE'S LETTER REQUEST FOR HEARING Ann P. Ilodgdon Counsel for NRC Staff

.. September 8,1992

l l-UNITED STATES OF AMERICA

. NUCLEAR REGULATORY COMMISSION REEQEE THli. COMMISSION In the Matter of )

) Docket No. 50-275 OLA

) Docket No. 50-323 OLA PACIFIC GAS & ELECTRIC CO. )

. (Diablo Canyon Nuclear Power Plant, ) (Construction Period Recapture)

Units 1 & 2) )

NRC STAFF RESPONSE TO SAN LUIS OBISPO MOTHERS

. FOR PEACE'S L ETTER REOUEST FOR llEARING INTRODUCTION On July 22,1992, the Nuclear Regulatory Commission (NRC) Staff published in the Federal Register a Notice of Consideration of Issuance of Amendment to Facility Operating License and Proposed No Significant Hazards Consideration Determination and Opportunity for Hearing, 57 Fed. Reg. 32571, regarding, among other things, Pacific Gas and Electric Company's (PG&E) application to revise its facility operating licenses for its Diablo Canyon Nuclear Power Plant, Units 1 and 2, to change the expiration date of the Unit I license from April 23,2008 to September 22,2021, and for the Unit 2 license from December 9, 2010, to April 26, 2025, so as to allow for 40 years of operation as permitted by 10 C.F.R. Q 50.51. 57 Fed. Reg. 32575. The notice included 9

a proposed no significant hazards consideration determination, id., and specified that any

, person whose interest might be affected by this proceeding and who wished to participate i

. . ._ .- . ._ . _ -. _ . . . - __ _ .~- .

i as a party in the proceeding "must file a written request for a hearing and a petition for leave to intervene" by August 21, 1992. 57 Fed. Reg. 32571, The notice further described the requirements of 10 C.F.R. 5 2.714 applicable to petitions for leave to intervene. 57 Fed. Reg. 32571-72. .

By letter to the Secretary of the Commission, dated August 18,1992 (letter), the San Luis Obispo Mothers of Peace (Mothers for Peace) requetted a hearing.' As discussed below the letter des not fully satisfy the requirements for a petition to intervene pursuant to 10 C.F.R. f 2.714.

DISCUSSION A. _- Slandards Appjicable To intervention Petitions Fection 189(a),42 U.S.C. 6 2239(a),'of the Atomic Lnergy Act (AEA) provides,

.ertinent part, that:

' In any proceeding under this chapter, for the granting, suspending, revoking, ot ' amending of any license or construction' permit, or application to transfer control,...the Commission shall grant a hearing upon the request of any person whose interest imay be afected by the.

proceeding, and shall admit any such person - as a party to such proceeding.

. [ emphasis added]. Under NRC regulations implementing the AEA, "any person whose interest may be affected by a proceeding and who desires to participate as a party shall

. ' Although the letter . dated August 18,1992, the envelope carries a postmark of August 19. 1992. In its Answer, dated Septe mber 4,1992, PG&E indicates that its

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copy arrived in an envelope postmarked August 20,1992.

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I file a written petition for leave to intervene " 10 C.F.R. I 2.714(a)(1). Such petition must satisfy the following requirements:

The petition shall set forth with panicularity the interest of the petitioner e in the proceeding, how that interest may be qfected by the results of the proceeding, including the reasons why petitioner should be permitted to 1

intervene, with particular reference to the factors in paragraph (d)(1) of this section, and the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.

c 10 C.F.R. 5 2.714(a)(2) (emphasis added).2 In determining whether a person or organization has sufficiently established an interest, protected by the AEA, that may be affected by the proceeding, the Commission applies contemporaneous judicial concepts of standing. See, e.g., Sacramento Afunicipal

' Utility District (Rancho Seco Nuclear Generating Station), CLI 92-2, 35 NRC 47,56- _

(1992); -Afetropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),

-CLI 83-25,18 NRC 327, 332 (1983); Portland General Electric Co. (Pebble Springs Nuclear: Plant,- Units 'l and 2), CL1-76-27, 4 NRC 610, 614 (1976). These judicial concepts require a petitioner to " establish that he or she will suffer a distinct and palpable 3

10 C.F.R. 6_2.714(d)(1) provides that,-in considering petitions-for leave to intervene or requests for hearing, the Commission or presiding officer shall consider, among other matters, the following factors:

(i) The nature of the petitioner's right under the AEA to be made a party to the proceeding.

(ii) The nature and extent of the petitioner's property, financial, or other interest -

in the proceeding.

(iii) The possible effect of any order that may be entered in the proceeding on the petitioner's interest.

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harm that constitutes the injury in fact, that the injury can be traced fairly to the challenged action, and that the injury is likely to be redressed by a favorable decision in the proceeding." Puhtle Service Co. of New Hampshire (Seabrook Station, Unit 1),

CLI 91-14,34 NRC 261,266-67 (1991). Accord, Foudation on Economic Tiends v.

Lyng,943 F,2d 79, 82 (D.C. Cir.1991) ("Lyng"); Nuclear Engineering Co. (Sheffield, Illinois, Low-Ixvel Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978)(there must be a concrete demonstration that harm could flow from the result of a proceeding).

- Regardless of whether it is an organization or an individual seeking a hearing, the same showing of injury is required. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), ALAB-952,33 NRC 521,529 (1991). An organization seeking intervention must establish injury to its organizational interests, and that those interests are protected by the AEA. Id. at 528-30. Absent injury to itself, an organization has standing only if it alkges "that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out ajusticiable case had the members themselves brought suit." Warth

v. Seldin,422 U.S. 490,511 (1975). See also Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644, 647 (1979). Without a "particularization of how the_ interests of one or more members . . . might be adversely affected" by the licensing action, an organization lacks standing. Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420,422 (1976). In addition, the petitioning organization that seeks to represent the interest of l

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its members must identify one or more of its members by name and address, identify any -

member activities that are carried out in close proximity to the plant site, and show that it is authorized to request a hearing on its members' behalf. Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB 535,9 NRC 377,392-96 (1979); Arizona Public Scivice Co. (Palo Verde Nuclear Generating Station, Units 1,2, and 3), LBP 91-4,33 NRC 153,158 (1991).

Further, the petition to intervene of an organization must show that the person signing it has been authorized by the organization to do so. Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LUP-79-1, 9 NRC 72, 77 (1979). An organization has suf6ciently demonstrated its standing to intervene ifits petition is signed by a ranking official of the organization who himself has the requisite personal interest to support the intervention. Duke Pourr Cornpany (Amendment to Materials License SNM-1773--Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528,9 NRC 146,151 (1979).

For any licensing 'action, the matters outlined in the Federal Register notice of opportunity for hearing define the scope of the proceeding on the action. See Wisconsin Electric Fourr Co. (Point _ Beach Nuclear Plant, Units 1 and 2), ALAB 739, 18 NRC 335, 339 (1983); Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-619,12 NRC 558,565 (_1980). Thus, parties may not seek to litigate issues that are not within the scope of the notice of opportunity for hearing.

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- B. hiothers for Peace's Letter Fails To Satisfy The Requirements for Interventinp. _

hiothers for Peace's letter, notes, in general terms, the organization's e

longstanding interest in the Diablo Canyon Nuclear Power Plant and reminds the Secretary of petitioner's intervention in the proceeding on PG&E's application for an operating license for Diablo Canyon. Nevertheless, although the letter states that the majority of San Luis Obispo hiothers for Peace's membership lives and owns property in the county where the plant is located, it does not reveal the names and addresses of any of those members and what their interest is, much less provide statements from those members that they authorize the organization to represent their interests.

hiothers for Peace's letter is also deGeient in that it fails to show how its interests or the interests of its members will be injured by the proposed action. The letter simply does not address the manner in which hiothers for Peace believes that it would suffer injury if the license amendment is granted or how its interests are protected by relevant statutes, as required by the Commission decisions that are discussed above, hiothers for -

Peace's mere recitation that it has intervened in the past is not enough to fulRll the requisite showing of standing pursuant to the regulations in 10 C.F.R. 6'2.714. See Consolidated Edison Co. (Indian Poin' Station, Units 1,2 and 3), ALAB-304, 3 NRC 1, 4 (1976); Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Unit 1),

LBP-92-4,35 NRC 114 (1992); Philadelphia Electric Co. (Peach Bottom Atomic Power

- Station, Units 2 and 3), LBP-75-22,1 NRC 451 (1975). The petitioner, thus, does not makes a suf6cient showing of standing. j l

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- As regards " aspect," Mothers for Peace's letter identines its concerns relating to PG&E's application to amend its license so as to be able to operate the plant for a full 40 years. In the second paragraph of its letter, Mothers for Peace discusses aging of components as an item of particular concern to the organization. This is.a subject that PG&E addresses in its application. Thus, Mothers for Peace has identified the aspect of the proceeding on which intervention is sought.

CONCLUSION As discussed above, Mothers of Peace has failed to satisfy.the requirements of 10 C.F.R. @ 2.714. However, because the Commission's regulations in 10 C.F.R. 5 2.714(a)(3) and (b)(1) permit a petitioner to amend the pleading until 15 days before the first prehearing conference, the presiding of0cer should defer ruling on standing pending receipt of any amendment Mothers for Peace may file.

Respectfully submitted, O

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q 'o - ch Ann P. Hodgdon Counsel for NRC Staff Dated at Rockville, Maryland this 8th day of September,1992 f

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y; .U E D UNITED STATES OF AMERICA '#

NUCLEAR REGULATORY COMMISSION

'92 SEP -9 P 3 :06 BEFORE THE COMMISSION

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In the Matter of )

) Docket No. 50-275 OLA ,

) Docket No. 50-323 OLA PACIFIC GAS & ELECTRIC CO. )

(Diablo Canyon Nuclear Power Plant, ) (Construction Period Recapture)

Units 1 & 2) )

NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter. In accordance with 6 2.713(b),10 C.F.R., Part 2, the following information is provided:

Name: Ann P. Hodgdon Address: U.S, Nuclear Regulatory Commission Office of the General Counsel Washington, D.C. 20555 Telephone Number: (301) 504-1587 Admissions: U.S. Court of Appeals, District of Columbia Name of Party: NRC Staff Respectfully submitted, O

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Ann Pl Hodgdon Counsel for NRC Staff Dated at Rockville, Maryland this 8th day of September,1992

ui m. n UNITED STATES OF AMERICA NUCLEAR REGUL.ATORY COMMISSION

,92 Str -9 P3 :06 BEFORE THE COMMISSION In the Matter of )

Docket No. 50-275 OLA

)

) Docket No. 50-323 OLA PACIFIC GAS & ELECTRIC CO. )

(Diablo Canyon Nuclear Power Plant, ) (Construction Period Recapture)

Units 1 & 2) )

CERTIFICATE OF_ SERVICE

. I hereby certify that copies of "NRC STAFF RESPONSE TO SAN LUIS OBISPO MOTHERS FOR PEACE'S LETTER REQUEST FOR HEARING" and " NOTICE OF APPEARANCE" for Ann P. Hodgdon 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 8th day of September,1992:

Nancy Culver Christopher J. Warner President, Board of Directors Richard F. Locke San Luis Obispo Mothers Pacific Gas & Electric Co.

for Peace 77 Beale Street

'192 Luncta Street San Francisco, CA 94106 San Luis Obispo, CA 93401 Joseph B Knotts, Jr.

Atomic Safety and Licensing Board Panel David A. Repka U.S. Nuclear Regulatory Commission- . Kathryn M. Kalowsky

' Washington, D.C. 20555 Winston & Strawn 1400 L Street, N.W.

Office of the Secretary Washington, D.C. 20005-3502 Attn: _ Docketing & Service Section U.S. Nuclear Regulatory Commission Office of Commission Appella?

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

. 2 --

,. Adjudicatory File Atomic Safety and Licensing Board Washington, D.C. 20555 Ann P.'Hodgdon Counsel for NRC Staff Dated at Rockville, Maryland this 8th day of September,'1992 -

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