ML19209B939
| ML19209B939 | |
| Person / Time | |
|---|---|
| Site: | New Haven |
| Issue date: | 08/03/1979 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7910110249 | |
| Download: ML19209B939 (10) | |
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NRC PLT >LIC DCCU313)gy w 8/3/79 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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New York State Electric & Gas Corp.
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Docket Nos. STN 50-596 and Long Island Lighting Co.
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STN 50-597
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(New Haven 1 and 2)
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STATE OF NEW YORK DEPARTMENT OF PUBLIC SERVICE BOARD ON e-ELECTRIC GENERATION SITING AND THE ENVIRONMENT 9
In the Matter of the Application of the )
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New York State Electric & Gas Corp.
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Case 80008
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(New Haven 1 and 2)
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.j' NRC STAFF SUPPLEMENTAL MEMORANDUM ON STANDING OF PETITIONERS COLUMBIA COUNTY, TOWN OF STUYVESANT, AND CONCERNED CITIZENS FOR SAFE ENERGY It is the Staff's position that Petitioners Columbia County, the Town of Stuyvesant, and Concerned Citi: ens for Safe Energy (Concerned Citizens) have failed to allege ti..
aterest and injury in fact necessary for standing in this proceeding.
BACKGROUND At a prehearing conference held in Oswego, New York, on May 23, 1979, Petitioners argued that they had standing to participate in this proceeding on the basis of the principle set forth in the case of Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2nd Cir.1967),
cert den., 334 U.S. 941 (1966). At that time the Licensing Board (Board) asked Petitioners to relate this case to NRC precedents and to other " Sierra lla,u 351 y91011n+9
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, Club" cases, including the Supreme Court case of Sierra Club v. Morton, 405 U.S. 727 (1974). Memoranda on this subject were to be filed by all parties on July 13, 1979.
The Staff and Applictits filed the requested memoranda on July 13, 1979.
In its memorandum the Staff stated that it could not adequately respond to Petitioners' statements., since the " Petitioners' position on the standing issue was somewhat unclear. NRC Staff Brief On Standino Of Hudson Valley Petitioners And Status Report On Necotiation Of Contentions, July 13, 1979,
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- n. 1.
However, since Petitioners have still not filed the requested memorandum clarifying their position, the Staff will now attempt to interpret and deal with the statements made by Petitioners' counsel at the May 23 prehearing conference.
ARGUMENT Petitioners argue that Scenic Hudson Preservation Conference v. FPC, suora,
'should be broadly read to confer standing in power cases to anyone.sith a special interest in power problems. Tr. 576.
Petitioners elsewhere stated that the purposes of Concerned Citizens ere:
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(a) To study and investigate environmental and public safety concerns involved with the construction of nuclear and/or fossil fuel power generating plants in Columbia County, the Hudson River Valley and elsewhere; (b) To comunicate publicly its, findings and opinions; (c) To study, investigate and communicate findings and opinions regarding alternate sources of electric power other than nuclear fuel; 1130
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. (d) To study, investigate and comnunicate findings and opinions regarding the conservation of electrical energy. On behalf of the hundreds of individuals who have joined Concerned Citizens, it has actively participated in cases before the New York State Public Service Con. mission relating to energy planning and NYSE&G rate making.
Affirmation of Robert J. Kafin in Suoport of Petition To Intervene, dated March 12,1979, at p. 2.
They claim that their interest in power problens is sufficient to give them standing in this proceeding. The NRC Staff disagrees with this position.
Sierra Club v. Morton, suora, is the controlling case here.
That case denied standing to the Sierra Club to challenge actions of the United States Forest Service for the development os Mineral King Valley.
Sierra Club v. Morton in effect overturns Scenic Hudson, though it does not do so explicitly. The Supreme Court noted that some lower courts had attempted to abondon the requirement of, injury in fact, and listed Scenic
. Hudson as one of the cases falling into this category.
Id,. a t 739, n. 14.
In that same footnote, the Supreme Court also noted that: "In most, if not all of these cases, at least one party to the proceeding did assert an individualized injury either to himself, or, in the case of an organization, to its members."
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Id.
It appears that this mention of injury in fact is the aspect of Scenic Hudson and the other cases mentioned in the above n.14 which saves them from explicit reversal, by the Supreme Court.
See, Comment; Supreme Court Decides The Mineral King Case: Sierra Club v. Morton, 2 E.L.R.10034,10036 (1973). However, the continued
_1/ For example, in Scenic Hudson, one of the two conservation groups forming the Scenic Hudson Organization had trails in the area of Storm King, portions of which would be flooded by the reservoir.
In fact, the Scenic Hudson Court specifically held that petitioners before it "have sufficient economic interest to establish their standing." 354 F.2d at 616.
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viability of that portion of Scenic Hudson which states that an interest in a problem is enough to make a petitioner a " party aggrieved" under the Federal Power Act is very unlikely, since the Suorece Court specifically stated:
"A mere ' interest in a problem' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization ' adversely affected' or
' aggrieved' within the meaning of the Administrative Procedure Act."
Id There is no indication by the Supreme Court that there is any reasr. to treat the Federal Power Act differently than the Administrative Procedure Act when defining the term " aggrieved party".
In Sierra Club, therefore, the Court has upheld injury in fact as a requirement for judicial standing.
The NRC applies judicial standing requirements to petitions to intervene in its proceedings. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4.iRC 610 (1976). These standards, as expressed in Sierra Club v. Morton, suoca; Sarlow v. Collins, 397 U.S. 159
-(1970); and Association of Data Processino Service Organization v. Camo, 397 U.S.150 (1970), require a showing that 1) the action being challenged could cause injury in fact to the person seeking to establish standing, and
- 2) such injury is arguably within the zone of interests protected by the statute governing the proceeding. _2/ While the Appeal Board has made it clear
_2] The Appeal Board has often applied these standards to its review of Licensing Board determinations in individual cases.
See, e.g.,
Houston Lichtino & Power Co. (South Texas Project, Units 1 and 2),
ALAB-549 (May 18, 1979), slio oo. at 4-7;- V'roinia Electric and Pcwer Co.
(North Anna Nuclear Power Station, Units T anc 2), ALAB-536 ( April 5,1979);
Houston Lightino & Pcwer Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAS-535 (April 4,,1979), slio op. at 22; Vircinia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54 (1979); and Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station). ALAB-328, 3 NRC 420 (1976). We have elsewhere argued that petitioners' concern about electricity rates is not within the " zone of interests" protected by the Atomic Energy Act. NRC Staff Answer to Petitions to Intervene Filed in Columbia / Ulster County Area, May 2,1979.
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5-that organizations may intervene purely in the representative capacity, South Texas Project, supra, slip op. at 5, the organization must identify a particular member whose interest would be affected by the proposed action.
North Anna Nuclear Power Station, ALAB-536, supra, slio op. at 4, and Allens Creek Nuclear Generatina Station, suora, slip oo. at 22.
It is not always necessary that a petition foi intervention particularize a causal relationship between the injury to a petitioner's interest and the results of the proceeding, North Anna Nuclear Power Station, ALAB-522, supra, at 56, but the pe.ition must specify at least one type of harm which an individual or members of petitioning organization might experience.
North Anna Nuclear Power Station, ALAB-522, suora, at n. 4.
Petitioner Concerned Citizens for Safe Energy has made no attempt to show that its members will be in any way affected by the construction of a nuclear facility at New Haven, nor have they shown any interest of any of the
-organization's members which is contemplated by the statute and which would be affected by the New Haven project. The only thing that is known about Concerned Citizens is that its members reside some 100-125 miles from the proposed site, and that it is an organization interested in nuclear energy, fossil fuels, and other alternative energy sources. There has been no allegation of even one type of harm which might be experienced by even one of Concerned Citizens' members.
Therefore, intervention as of right under 5189 of the Atomic Energy Act, 42 U.S.C. 2239, and 10 C.F.R. 52.714(a) of the Commission's regulations 1130 355
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. should not be granted to Petitioner Concerned Citizens.
The Staff has previously recommended that this organization be admitted as an intervenor on the limited alternative sites issue under the Board's authority to grant discretionary intervention. This recomendation remains unchanged.
- However, intervention as of right or at the Beard's discretion should not be granted to Petitioner Concerned Citizens on any other issues, since their petition fails to make any of the necessary allegations to support a case for intervention on these issues.
As far as the Town of Stuyvesant and Columbia County are concerned, the Staff continues to believe, as expressed in our flRC Staff Sucolemental Answer to Petitions to Intervene Filed in Columbia / Ulster County Area (May 2,1979), that under the interested state provision of 10 C.F.R. 52.715(c) they have not alleged the interest requisite to establish standing in this proceeding.
See, Exxon fluclear Ccmoany Inc. (fluclear Fuel Recovery and
. Recycling Center), LBP-77-59, 6 tlRC 518, 523-24 (1977).
C0!iCLUSION For the foregoing reasons, the flRC Staff argues that the petitions for intervention as of right of Petitioners Columbia County, the Town of Stuyvesant and Concerned Citizens for Safe Energy, Inc., should be denied.
Respectfully submitted, NM Janice E Moore k Counsel for tiRC Staff Oated at Bethesda, Maryland this 3rd day of August,1979.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of
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Docket Nos. STN 50-596 NEW YORK STATE ELECTRIC & GAS CORP. )
STN 50-597 AND LONG ISLAND LIGHTING CO.
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(New Haven 1 and 2)
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STATE OF NEW YORK DEPARTMENT OF PUBLIC SERVICE BOARD UN ELECTRIC GENERATION SITING AND THE ENVIRONMENT In the f. tatter of the Application of the
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NEW YORK STATE ELECTRIC & GAS CORP. )
Case 80008 AND LONG ISLAND LIGHTING CO.
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(New Haven 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF SUPPIEEEAL MEMCR2M1 ON STROI2U OF mmONERS CCLD!BIA COLI.TI, IUJN OF SILYVESME, AND COtXZC:ED wITIZENS FCR SAFE ENERGT', in the above-capticned proceeding have been served on the following,by deposit in the United States rail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Ccmission's internal call systaa, this 3rd day of August,1979:
Seymour Wenner, Esq., Chairman Thomas R. Matias, Administrative Law Judge Atomic. Safety and Licensing Board New York State Department of Public Service U.S. Nuclear Regulatory Commission Empire State Plaza Washington, D.C.
20555 Agency Building No. 3 Albany, New York 12223 Dr. Oscar H. Paris, Member Atomic Safety and Licensing Board Dr. Sidney A. dchwartz U.S. Nuclear Regulatory Commission New York State Department of Washington, D.C.
20555 Environmental Conservation 50 Wolf Road.
Dr. Walter H. Jordan, Member Albany, New York 12233 Atomic fiafety and Licensing Board 881 West Outer Drive Oak Ridge, Tennessee 37830 1130 357
. Roderick Schutt, Esq.
Mr. William Keeping, Supervisor Huber, Magill, Lawrence & Farrell Town of Gardiner 99 Park Avenue Gardiner, New York 12525
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- New York, New York 10016 Dr. Stephen J. Egemeier, Chairman Robert Grey, Esq.
Environmental Management Council State of New York Department 300 Flatbush Avenue of Public Service Kingston, New York 12401 Empire State Plaza Albany, New York 12223 Peter D. G. Brown Chairman of the Board Stanley B. Klimberg, Acting Counsel Mid-Hudson Nuclear Opponents New York State Energy Office P. O. Box 666 2 Rockefeller Plaza New Paltz, New York 12561 Albany, New York 12223 Mr. Alman J. Hawkins David A. Engel, Esq.
County Planning Director New York State Department of Oswego County Planning Department Environmental Conservation 46 East Bridge Street 50 Wolf Road Uswego, New York 13126 Albany, New York 12233 Ms. Barbara J. Campbell Ms. Linda Clark Village Clerk Safe Energy for New Haven village of Mexico Box #22 - RD #1 P. O. Box 26 Mexico, New York 13114 Mexico, New York 13114 Ecology Action Richard P. Feirstein, Esq.
c/o Helen Daly Department of Agriculture and Markets W. River Road, RD #5 Albany, New York 12235 Oswego, New York 13126 Ms. Susan Link Mrs. Nancy K. Weber' R.D.1, Dewey Road RD #3 Mexico, New York 13114 Mexico, New York 13114 Edward M. Barrett, General Counsel Robert J. Kafin Long Island Lighting Conipany Attorney for Columbia County, Town of 250 Old Country Road Stuyvesant & Concerned Citizens for Mineola, New York 11501 Safe Energy, Inc.
7, 11 Chester Street, P. O. Box 765 Glens Falls, New York 12801
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Mr. Michael J. Ray Mark R. Gibbs, Supervisor New York State Electric & Gas Corp.
Town of.'f exico 4500 Vestal Parkway East S. Jefferson Street
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- Binghamton, New York 13902 Mexico, New York 13114 Henry G. Williams, Director of Thomas G. Griffen, Esq.
State Planning Town of Kinderhook New York State Department of State 542 Warren Street 162 Washington Avenue Hudson, New York 12534 Albany, New York 12231 G. Jeffrey Haber, Supervisor Samuel J. Abate, Executive Director 1777 Columbia Turnpike Hudson River Valley Commission Castleton, New York 12U33 The Governor Nelson A. Rockefeller Empire State Plaza rtalph Schimmel, Representative Agency Building No: 1 Town of Coeymans Albany, New York 12238 Russell Avenue Ravena, New York 12143 Commissioner New York State Dept. of Health James P. McGrath, Esq.
Attn: Director - Office of Public Health City of Oswego Tower Building - 14th Floor 38 East Utica Street Empire State Plaza Oswego, New York 13126 Albany, New York 12237 John D. Hotaling, President Commissioner Columbia Co. Fruit Growers New York State Dept. of Commerce R.D.1 99 Washington Avenue Hudson, New York 12534 Albany, New York 12245 Vivian Rosenberg Mr. Robert Fickies Box 274 Energy - Environmental Geology Walker Mill Road New York State Geological Survey Germantown, New York 12526 Education Building Annex Albany, New York 12234 Ms. Jeanne F. Fudala Ecology Action - Tompkins Co.
William Tyson. Executive Director 140 West State :. treet St. Lawrence - Eastern Ontario Ccmmission Ithaca, New York 14850 317 Washington Street Watertewn, New York 13601 Ms". Anne F. Curtin Concerned Citizens for Safe Energy, Inc.
Thomas E. Brewer, Director P.O. Box 88 Rensselaer Co. Dept. of Health Stuyvesant, New York 12173 Troy, New York 12180
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. Commissioner Orin Lehman Margaret A. Sprague, President New York State Dept. of Parks & Recreation
, Mexico Academy and Central School The Governor Nelson A. Rockefeller Mexico, New York 13114
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Empire State Plaza Agency Building No.1 Doris Brown Albany, New York 12238 League of Women Voters of Tompkins County 86 Uak Crest Road H. Lee Davis, President ithaca, New York 14850 Citizens to Preserve the Hudson Valley, Inc.
Samuel R. Madison, Secretary P. O.
Box 412 New York State Department of Catskill, New York 12414 Public Service The Governor Nelson A. Rockefeller Mrs. Jeffrey Braley, President Empire State Plaza Columbia County Farm Bureau Agency Building No. 3 Star Route Box 22 Albany, New York 12223 Chatham, New York 12037 Atomic Safety and Licensing Clara Glenister, Town Clerk Board Panel Town of New Haven U.S. Nuclear Regulatory Commission P. O.
Box 115 Washington, D.C.
20555 New Haven, New York 13121 Atomic Safety and Licensing John F. Shea, Esq.
Appeal Board Panel Assistant Attorney General U.S. Nuclear Regulatory Commission Department of Law Washington, D.C. 20555 Two World Trade Center New York, New York 10047 Docketing and Service Section Office of the Secretary Mr. Doug Buske U.S. Nuclear Regulatory Commission Plumbers & Steamfitters Washington, D.C.
20555 Local No. 27 R.D. #1 Oswego, New York 13126 Heilly and Like, Esgs.
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f 200 West Main Street Babylon, New York 11702 Marcia E. Mulkey
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Counsel for NRC S':aff John M. Mowry, Esq.
Mowry, Mowry & Seiter Main Street Mexico, New York 13114 4
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