ML19210C580
| ML19210C580 | |
| Person / Time | |
|---|---|
| Site: | Fort Calhoun  |
| Issue date: | 10/29/1979 |
| From: | Gray J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19210C578 | List: |
| References | |
| NUDOCS 7911190141 | |
| Download: ML19210C580 (13) | |
Text
10/29/79 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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OMAHA PUBLIC POWER DISTRICT Docket No. 50-285 (Fort Calhoun Station, Unit 1)
NRC STAFF'S RESPONSE TO REQUEST FOR HEARING BY NATURAL RESOURCES COMMITTEE OF THE CITIZENS ADVISORY BOARD OF THE NETROPOLITAN AREA PLANNING AGENCY I.
Introduction By petition filed on October 9,1979, the Natural Resources Committee of the Citizens Advisory Board of the Metropolitan Area Planning Agency of Omaha, Nebraska (Petitioner), acting by and through its Chainnan, Alan H. Kirshen, requested a hearing on Omaha Public Power District's (Licensee) application for an amendment to the operating license for the Fort Calhoun Station, Unit 1, which would authorize an increase in the licensed power level for the facility from 1420 MWt to 1500 MWt.
A notice of Proposed Issuance of Amendment to Facility Operating License with regard to this matter was published in the Federal Register on September 7,1979 (44 F.R. 52389). That notice stated that the NRC is considering the issuance of an amendment to the facility operating license which would authorize:
(1) an increase in licensed power level; (2) the use of fuel manufactured by the Exxon Nuclear Company, Inc. for the next cycle of operation; and (3) the use of Exxon analytical methods. The notice 1354 186 N/
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provided that the Licensee could request a hearing and that interested persons could seek to intervene with regard to such matters by filing written petitions to intervene on or before October 9,1979. The instant petition was apparently filed pursuant to such notice.
For the reasons set forth below, the NRC Staff (Staff) opposes Petitioner's request for hearing as presently constituted.
II.
NRC Staff's Position The nature of Petitioner's request for hearing and of the status of the Petitioner itself has not been set forth explicitly in the document filed on October 9,1979 (hereinaf ter referred to as " Request for Hearing").
- Thus, it is unclear whether Petitioner seeks to intervene under 10 CFR 9 2.714, either as a governmental body or as an organization representing its members, or, instead, seeks to participate in any hearing that may be held as an interested local governmental agency pursuant to 10 CFR 6 2.715(c).
Accord-ingly, Petitioner's request for hearing must be addressed in each context.
A.
Intervention Pursuant to 10 CFR 5 2.714 10 CFR Q 2.714(a)(2), as well as the notice of Proposed Issuance of Amendment to Facility Operating License (44 F.R. 52389, 52390), require that a petition for leave to intervene set forth with particularity 1354 187 1
(1) the interest of the petitioner in the proceeding, (2) the manner in which that interest may be affected by the results of the proceeding, and (3) the reasons why intervention should be pemitted with particular reference to (a) the nature of the petitioner's right under the Atomic Energy Act to be made a party to the proceeding, (b) the nature and extent of the petitioner's property, financial, or other interest in the proceeding, and (c) the possible effect of any order which may be entered in the proceeding on the petitioner's interest.
Moreover, to establish an interest which would allow intervention as of right, a petitioner must show that it meets the requirements for judicial standing.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976). These standards, set forth in Sierra Club v. Morton, 405 U.S. 727 (1974); Barlow v. Collins, 397 U.S.159 (1970); and Association of Data Processing Service Organizations v. Camp, 397 U.S.150 (1970), require a showing that (1) the action being challenged could cause injury-in-fact to the person seeking standing and (2) such injury is arguably within the zone of interests protected by the Statute governing the proceeding.
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. 1.
Intervention as a Governmental Body Under 10 CFR 6 2.714 Petitioner asserts that it is "an officially constituted working comittee of the Citizens Advisory Board, which was created by the Metropolitan Area Planning Agency, a Council of Public Officials in the Omaha, Nebraska area...."
(Request for Hearing,1 1).
While it is not clear from this description that Petitioner is acting on behalf of an official state or local governmental agency or body, the fact that Petitioner may be acting as a governmental body does not relieve it of the requirements of 10 CFR S 2.714 since an intervention petition filed by a governmental body pursuant to section 2.714 is not to be treated differently from an intervention petition by a private person. Nuclear Fuel Services, Inc. et al.
(West Valley Reprocessing Plant), ALAB-263,1 NRC 208, rev'd on other gnds.,
CLI-75-4,1 NRC 273 (1975). Accordingly, the requirements set forth above for intervention as of right under 10 CFR 9 2.714 must be met by Petitioner regardless of whether it is a governmental body or not.
Petitioner states that its function is to provide advice to the Metropolitan Area Planning Agency in the planning of matters of concern to the agency and to provide review and citizen input on matters of community or regional concern in the natural resources and environmental areas.
(Request for Hearing,11).
In this capacity, Petitioner is involved in the review of the safety and environmental implications of the Licensee's application for an increase in authorized power level.
(Request for Hearing,12).
Peti-tioner's stated function does, in the Staff's view, evidence some interest in the instant proceeding, although the precise and specific outlines of 1354 189
that interest have not been set forth in any detail. At the same time, there is a total absence of any indication in Petitioner's Request for Hearing as to the manner in which Petitioner's interest may be affected by the results of this proceeding or the means whereby the proposed increase in authorized power level for the Fort Calhoun facility could result in injury-in-fact to the Petitioner. Moreover, apart from Petitioner's claim that the public interest requires a hearing in which citizens who could be adversely affected by an accident at, or increased thermal discharges from, the facility could appear, (Request for Hearing,13),Il etitioner has not stated why P
intervention should be permitted with particular reference to the factors set out in 10 CFR % 2.714(d) as required by the Federal Register notice and by Section 2.714 itself.
In sum, while Petitioner ~ appears to have identi-fied at least some vaguely defined interest in the proceeding, it has wholly failed to show the manner in which that interest might be affected or to even allege that its interest could be affected by the proceeding. Accord-ingly, it is the Staff's view that the Request for Hearing, in its present fom, is insufficient to demonstrate Petitioner's standing as a governmental body to intervene as of right under 10 CFR 5 2.714.
2.
Intervention as an Organization Representing its Members Under 10 CFR 2.714 If, in fact, Petitioner is not acting as an official representative of a governmental body but, instead, is acting as an organization on behalf of its members, it has an additional burden to bear in establishing a right to 1/
Petitioner has not stated that it is or would be representing persons whose interests could be affected by the proposed increase in authorized power level.
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intenene under 10 CFR 5 2.714. A party may intenene as of right only when he asserts his own interest under either the Atomic Energy Act or the National Environmental Policy Act. Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418,1421 (1977).
If an organization sacks to establish standing as a representative of its members who have an interest, it must identify such members and establish that at least one member has a cognizable interest that might be affected by the results of the proceeding. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station), ALAB-535, 9 NRC 535 (1979). The member with such an interest must authorize the organization to represent his interests where such authorization cannot be presumed from the nature of the organization.
Allens Creek supra.
In the case at bar, Petitioner has failed (1) to identify any of its members whose interests may be affected by this proceeding (2) to demonstrate that identified members have cognizable interests that could be affected and the manner in which those interests might be affected and (3) to show that members with cognizable interests have authorized Petitioner to represent those interests or that, by the nature of the organization, such authorization can fairly be presumed.
Consequently, if Petitioner is acting as a non-governmental organization on behalf of its members, it has not demonstrated standing on the basis of standing of at least one of those members.
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3.
Discretionary Intervention Although a petitioner may lack standing to intervene as of right under judicial standing concepts, it may nevertheless be admitted as a party in the Licensing Board's discretion. The Licensing Board is to be guided in the exercise of its discretion in this vein by a consideration of:
(1) the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record; (2) the nature and extent of the petitioner's property, financial or other interest; (3) the possible effect on the petitioner's interest of any order which may be entered in the proceeding; (4) the availability of other means to protect the petitioner's interest; (5) the extent to which the petitioner's interest will be represented by existing parties; and (6) the extent to which petitioner's participation will inappropriately broaden or delay the proceeding. Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976).
The primary factor is the significance of the contribution that a petitioner might make.
Pebble Springs. The need for a showing as to potential contri-bution is especially strong in an operating license proceeding where no petitioners have established standing as of right and where, absent such a 1354 192
. showing, no hearing would be held. Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418,1422 (1977).
In the instant case, no information is presented in Petitioner's Request for Hearing that would allow a determination as to Petitioner's potential contri-bution to the development of a sound record or a decision on any of the other factors bearing on discretionary intervention.
Accordingly, it is the Staff's view that discretionary intervention cannot be granted based on Petitioner's Request for Hearing as it is presently constituted.
4.
Aspects as to Which Intervention is Sought 10 CFR 9 2.714(a)(2) also requires that any petition to intervene set forth with particularity the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.
Although this provision has not yet been addressed extensively in NRC case law, it is apparent that the provision requires identification of aspects with suffi-cient specificity to provide notice to other participants of the issues likely to be litigated and, therefore, of the scope of the contested subject matter in the proceeding.
In this regard, it is not clear from Petitioner's Request for Hearing what aspects of the proposed licensing action Petitioner seeks to litigate. Petitioner states that it has considered the environ-mental and safety implications of " stretch power" at the Fort Calhoun facility and that it was advised by the Licensee that such matters would best be addressed in the NRC licensing proceeding.
(Request for Hearing,12).
Based on these statements, it may be that Petitioner seeks to intervene with 1354 193
.g.
regard to some aspects of the proposed increase in authorized power level, although the specific a weets have not bean identified.
Thus, it is the Staff's view that, while Petitioner has generally identified a part of the proposed licensing action in which it has an interest, it has not clearly set forth "with particularity... the specific aspect or aspects of the subject matter of the proceeding as to which[it] wishes to intervene."
10 CFR Q 2.714(a)(2).U B.
Participation as an Interested Governmental Body Under 10 CFR 6 2.715(c) 10 CFR 5 2.715, " Participation by a person not a party," provides, in subsec-tion (c), that:
[t]he presiding officer will afford representatives of an interested State, county, municipality, and/or agencies thereof, a reasonable opportunity to participate and to introduce evidence, interrogate witnesses, and advise the Commission without requiring the representative to take a position with respect to the issue.
Such participants may also file proposed findings and exceptions pursuant to 66 2.754 and 2.762 and petitions for review by the Commission pursuant to 6 2.786. The presiding officer may require such representative to indicate with reasonable specificity, in advance of the hearing, the subject matters on which he desires to participate.
If, in fact, Petitioner is officially authorized to act and is acting on behalf of an official state or local governmental body or agency, it would clearly qualify, without more, under section 2.715(c) to participate in any y
Petitioner also states that, in its view, a hearing should be held to provide an opportunity to be heard to citizens who might be affected by an accident at the facility or by increased thennal discharges.
(Request for Hearing,13).
However, Petitioner has not stated that it is intervening on behalf of such citizens or that the effects of accidents and increased thermal discharges from the proposed licensing action are the aspects of this proceeding as to which it seeks to intervene.
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hearing which would otherwise be held with regard to the proposed action.
However, it is impossible to detemine from the infomation set forth in Petitioner's Request for Hearing that Petitioner is an official state or local governmental body or that it is authorized to participate in this proceeding as a representative of such governmental body.U Consequently, it is the Staff's view that Petitioner has failed to demonstrate that it is qualified, pursuant to 10 CFR 9 2.715(c), to participate in any hearing that may be held with regard to this licensing action.
III. Conclusion Based on the foregoing and for the reasons set forth above, it is the Staff's position that Petitioner:
(1) has failed to demonstrate the required standing, either as a governmental body or as any organization representing its members, to intervene as of right under 10 CFR 6 2.714; (2) has failed to set forth any basis upon which the Licensing Board could admit Petitioner as a matter of discretion; 3/
While the Chaiman of the Citizens Advisory Board has certified that the Board's Executive Committee has authorized the filing of the Request for Hearing, there is no indication that the Citizen's Advisory Board is empowered, through its own actions, to represent, and act on behalf of the Metropolitan Area Planning Agency or any official governmental agency or that the Citizens Advisory Board is itself an official independent governmental agency.
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(3) has not adequately set forth, with particularity, the specific aspect or aspects of the subject matter of the proceeding as to which it wishes to intervene as required by 10 CFR Q 2.714(a)(2);
and (4) has failed to demonstrate that it qualifies to participate in any hearing that is held as an interested governmental body pursuant to 10 CFR Q 2.715(c).
Consequently, it is the Staff's position that Petitioner's Request for Hearing should be denied in its present fom.
However, under 10 CFR Q 2.714(b), Petitioner may amend its Request for Hearing up to 15 days before the first prehearing conference in this proceeding in an attempt to cure the existing deficiencies.
Respectfully submitted, 9
osep R. Gray Counsel for NRC Staf Dated at Bethesda, Maryland this 29th day of October,1979 1354 196
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Q OMAHA PUBLIC POWER DISTRICT
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Docket No. 50-285 N
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(Fort Calhoun Station, Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO REQUEST FOR HEARING BY ALAN H. KIRSHEN, ACTING AS AN INDIVIDUAL" and "NRC STAFF'S RESPONSE TO REQUEST FOR HEARING BY NATURAL RESOURCES COMMITTEE OF THE CITIZENS ADVISORY BOARD OF THE METROPOLITAN AREA PLANNING AGENCY" 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 29th day of October, 1979:
Elizabeth S. Bowers, Esq., Chairman
- Citizens Advisory Board Atomic Safety and Licensing Board Metropolitan Area Planning Agency U.S. Nuclear Regulatory Commission Suite 200 Washington, DC 20555 7000 West Center Road Omaha, NE 68106 Mr. Ernest E. Hill Lawrence Livermore Laboratory Alan H. Kirshen, Associate University of California Professor of Law P. O. Box 808, L-123 C/0 Creighton University Livermore, CA 94550 School of Law 2133 California Street Dr. Quentin J. Stober Omaha, NE 68178 Fisheries Research Institute University of Washington Harry H. Voigt, Esq.
Seattle, WA 98195 LeBoeuf, Lamb, Leiby & MacRae 1333 New Hampshire Avenue, N.W.
Emett Rogert, Chairman Washington, DC 20036 Washington County Board of Supervisors Margaret R. A. Paradis, Esq.
Courthouse LeBoeuf, Lamb, Leiby & MacRae 16th & Colfex Streets 1333 New Hampshire Avenue, N.W.
Blair, NE 68008 Washington, DC 20036 Omaha Public Power District Atonic Safety and Licensing Board 1623 Harney Street Panel
- Omaha, NE 68102 U.S. Nuclear Regulatory Commission Washington, DC 20555 1354 197
Atomic Safety and Licensing Appeal Panel (5)*
U.S. Nuclear Regulatory Comission Washington, DC 20555 Docketing and Service Section (5)*
Office of the Secretary U.S. Nuclear Regualtory Comission Washington, DC 20555 h MJ 6 La Jj$sep R. Gray /
Coun 1 for NRC Staff 1354 198