ML19210D937
| ML19210D937 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 10/31/1979 |
| From: | Berson B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7911290057 | |
| Download: ML19210D937 (12) | |
Text
'.5 NRC PUBLIC DOCUMENT ROOM UNITED STATES OF AMERICA NUCLEAR LEGULATORY COMMISSION 10/31/79 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD T
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g In the Matter of
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y METROPOLITAN EDISON COMPANY, ej g.)
Docket No. 50-289 4g (Three Mile Island, Unit 1)
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NRC STAFF RESPONSE TO AMENDED PETITIONS
'.._ A AND STATEMENTS BEARING ON INTEREST IN
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THE THREE MILE ISLAND UNIT 1 PROCEEDING RECEIVED BY THE STAFF BETWEEN SEPTEMBER 21, 1979 AND OCTOBER 31, 1979 INTRODUCTION Since September 20, 1979, the NRC Staff has received a statement from the Pennsylvania Office of Consumer Advocate bearing on its interest to partici-pa'e in this proceeding as an interested state agency anu amended petitions for leave to intervene which discuss the interests of Jane Lee, Marvin I. Lewis, Marjorie M. A Imodt and Frieda Berryhill. We have previously set forth our understanding of the legal requirements for establishing a petitioner's right to intervene in NRC proceedings and will not repeat them here.-1/
We provide belcw our response to these petitions in relationship to the adequacy of each petitioner's showing of interest. Our response to the contentions sought to be litigated by Mr. Lewis, Ms. Aamodt, and Ms. Berryhill are contained in our 1454 026 1/ NRC Staff Response to Petitions to Intervene in the Three Mile Island Unit 1
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Proceecing Received by the Staff on or Before September 13, 1979 at 3-7, September 13, 1979 We have included a copy of our earlier filing with this pleading for Ms. Lee who was not on our service list on September 13.
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7911290 4,
. Brief in Response to Contentions also filed today, nur response to the contentions of Ms. Lee is contained herein.
Our conclusion with respect to each statement or petition is as follows:
(1) The statement of the Pennsylvania Office of Consumer Advocate satisfies the requirements of 10 C.F.R. 52.715(c) regarding interest.
(2) The amended petition of Jane Lee satisfies the interest requirements of 10 C.F.R. 52.714(a) but fails to state a litigable contention. Further, we view the petition as an untimely filed petition for leave to intervene in which no good cause has been shown for the untimeliness.
(3) The amended petitions of Marvin I. Lewis fail to satisfy the interest requirements of 10 C.F.R. 52.714(a).
(4) The amended petitions of Marjorie M. Aamodt satisfy the interest requirements of 10 C.F.R. 62.714(a).
(5) The amended petition of Frieda Berryhill fails to satisfy the interest requirements of 10 C.F.R. 52.714(a).
STATEMENT OF THE PENNSYLVANIA 0FFICE OF THE CONSUMER ADVOCATE On October 22, 1979, the Pennsylvania Office of the Consumer Advocate filed a supplemental statement regarding its petition for leave to participate as an interested state agency.-2/The Consumer Advocate states that it has the statutory duty to address, before any relevant agency, matters affecting 2/ Statement of the Pennsylvania Office of Consumer Advocate Regarding Petition for Leave to Participate as an Interested State Agency (Statement),
October 22, 1979.
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, Pennsylvania utility consumers.-3/This includes the continuing financial viability of the Metropolitan Edison Company and its prospective ability 4/
to provide safe, adequate, efficient, and reliable service.
Further, the Consumer Advocate desires to participate in this proceeding on the issue of Metropolitan Edison's financial qualifications as they affect its ability to safely operate TMI. Five sub-issues are enumerated.-5/
We conclude that the interest of the Consumer Advocate in the safe opera-tion of the TMI facility falls within the zone of interests sought to be protected by the Atomic Energy Act. Therefore, the Consumer Advocate should be permitted to participate in this proceeding as an interested state agency on the issues it has !dentified.
AMENDED PETITION OF JANE LEE Ms. Jane Lee filed a document entitled " Amendment to Intervention" on October 15, 1979 in which she seeks to alter her status in this proceeding from a limited appearee pursuant to 10 C.F.R. 52.715(a) to a full party pursuant to 10 C.F.R. 52.714(a). She appears to rely on the October 22, 1979 dead 1:ne set by the Licensin? Board for filing amer.ded petitions for leave to intervene and final 3/ Statement at 5.
4/ Ibid.
_5) H. at 7-8.
1434'028
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contentions as authority to alter her status.~ We first discuss her request to alter her status and then address her showing of interest ar.d the adequacy of the contentior,s stated in the Amended Petition.
We oppose ils. Lee's request to alter her status at this time, but recor:rnend that she be permitted to pursue one of the two alternatives we propose below.
Our analysis of Ms. Lee's request begins with the September 18, 1979 Memo-randum of the Atomic Safety and Licensing Board cited by Ms. Lee in her knended ?etition. The Licensing Board tentatively set October 22, 1979 as the filing deadline for amended petitions and contentions, and stated its intention to rule on whether "each petition for leave to intervene under 10 C.F.R. 52.714" meets the preliminary standing requirements (emphasis 7/
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supplied).
In our view, Ms. Lee did not file a petition for leave to inter-vene under 10 C.F.R. 52.714 until October 15 (her Amended Petition). On the contrary, her initial filing in this proceeding consisted of a one-page, undated, uncaptioned letter which requested permission "to participate in testifying at the TMI-1 hearings" and " time to submit... medical ard en-vironmental information garnered by me over a three year period... to the NRC Panel selected for the purpose of deciding to continue operatier:
6/ Amendment to Intervention (Amended Petition) at 1.
7/ Memorandum at 1-2.
The schedule was finalized in the Licensing Board's Memorandum and Order Ruling on Petitions and Setting Special Prehearing Conference, September 21, 1979 at 25. No petition from Ms. Lee was considered by the Board or any party with respect to the September 21 Memorandum and Order.
H34 029 8/
of Unit 1 at TMI."
We did not respond to the letter, treating it as a request to make a limited appearance. The Licensee responded in writing to Ms. Lee's letter on August 30, 1979, stating that it understood her letter to be a limited appearance request (to which it had no objection) rather than a pe'ition for leave to intervene pursuant to 10 C.F.2. 52.714(a).
We do not understand Ms. Lee to be objecting to the Licensee's August 30 characterization of her initial letter, a characterization she at least 9/
implicitly agrees with in her Amended Petition.-
Therefore, we view Ms. Lee's Amended Petition as a nontimely-filed petition for leave to intervene. We oppose her admission as a party at this time because she has made no substantial showing, or any showing at all, of good cause for the granting of : late petition, based on a balancing of the factors 10/
specified in 10 C.F.R. 52.714(a)(i)-(v) and 12.714(d).~
However, we suggest that Ms. Lee be given an opportunity to make a showing of good cause for the late filing at the November 8 Special Prehearing Conference if she is also prepared to argue her final contentions at the Conference. Alternatively, if Ms. Lee's major concern is to ensure that the medical and environmental
__8_/ The letter was docketed by the NRC Office of the Secretary on August 20, 1979.
9/ "Therefore, it is vital that try status be altered from 10 C.F.R. 62.715(a)
(limited appearance) to 10 C.F.R. 52.714(a) (litigation). Petition to inte/vene pursuant to 10 C.F.R. 52.714(a) instead of 10 C.F.R. 62.715(a)
(Please note this request for change)." Amended Petition at 1-2.
10/ See page 17 of the Commission's August 9,1979 Orde' and Notice of Hearing, 44 F.R. 47824 (August 15,1979) which specifically requires such a showing in accordance with usual practice.
1434 030 information she has gathered relating to TM; is made a part of the official record and considered to the extent appropriate in this prodeeding, then we would welcome a limited appearance statement from her.
Interest and Contentions Ms. Lee states in her Amended Peti; ion that she resides within three miles of Three Mile Island and will t:,ke the position that the resumption of opera-tion will increase the health problems of animals and eventually affect 11/
humans in the area as well.- Since Ms. Lee resides so close to the facility, we understand her to be saying that she believes her health may be adversely affected by resumed operations. Therefore, we believe that Ms. Lee satis-fies the interest requirements of 10 C.F.R. 52.714(a).
Ms. Lee also appears to raise two contentions which she seeks to litigate, namely medical and environmental information bearing on the prudence of resuming operation as it relates to birds, farm animals and plant life and malfunctions of Unit 1 prior to the Unit 2 accident. In our view, each of these contentions lacks adequate specificity and basis and does not appear tied to, or at least is not limited to, issues within the scope of this cro-ceeding. For example " malfunctions of Unit 1 prior to the Unit 2 accident" fails to identify in any fashion what malfunction of Unit 1 petitioner is 11/ Amended Petition at 2.
1 1434 031 concerned about and how such malfunctions might relate to the bases for the present suspension of Unit 1 operations. Therefore, we conclude that peti-tiener has failed to identify a litigable contention.
INTEREST OF MARVIN I. LEWIS Marvin I. Lewis has filed a number of documents since our September 20, 1979 response to his amended petition for leave to intervene and the September 21, 1979 ruling by the Atomic Safety and Licensing Board that petitioner had so far failed to provide an adequate basis for establishing his interest in 12/
this proceeding.
In particular, two of Mr. Lewis' recent submittals 13/
address the question of his interest."'-
We conclude that Mr. Lewis' subsequent filings fail to provide an adequate basis for establishing his interest in this proceeding. We understand the essence of Mr. Lewis' interest arguments in Further Amendments to be that his life is endangered by potential operation of TMI-1 since the theore-tical consequences of a " Class 9" accident at a nuclear power plant could cause death at a distance of up to 150 kilometers (approximately 93 miles) from the accident site. Mr. Lewis resides approximately 90 miles from Three Mile Island.-14/
-15/
Petitioner's letter advances a similar theory. "-
The flaw 1_2f See Memorandum and Order Ruling on Petitions and Setting Special Prehearing 2
Conference at 18-21.
13/ Further Amencments to Petition to Intervene, undated, docketed by the NRC, Office of the Secretary on September 27, 1979 (Further Amendments) and letter dated Septembe* 26, 1979 to the Atomic Safety and Licensing Board (Letter).
M/SeeFurtherAmendmentsat3-4.
---15/ See Letter at 3-4, 8-9.
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-8 with Mr. Lewis' argument is that he premises his showing of " injury in fact" on the theoretical consequences of some undescribed accident at Three Mile Island with no identification of a credible mechanism which could cause an 16/
accident with the theoretical consequences he relies upon.- Therefore, we believe that Mr. Lewis' attempt to show possible injury from the theo-retical consequences of an unidentified accident at a distance of some ninety miles from the TMI site is too remote and speculative to demonstrate
" injury in fact" consistent with judicial concepts of standing. The Appeal Board has stated that residence at 50 miles is "not so great as necessarily 17/
to have precluded a finding of standing based on residence" and that the showing by a petitioner of the eristence of " reasonable possibility" of ad-18/
verse impact can serve as the basis for standing.~ In addition, the injury is to be. particularized to the individual, not " shared in substantially equal 19/
measure by all or a large class of citizens."-
As we understand Mr. Lewis' reliance on accident consequences, he has not alleged a reasonable possibility 16f In determining whether the issue of consequences of " Class 9" accidents is 6
appropriate for litigation in NRC proceedings, the Appeal Board has generally followed the " interim guidance" of the Commission set forth in the proposed Annex to Appendix D to 10 C.F.R. Part 50 (now Part 51), 36 Fed. Re1 22851-52 (Dec.1,1971), which states that the consequences of such accidents need not be discussed because of the 1-w 1robability of their occurrence. However, a potential litigant may make "an affirmative showing" that this regu?atory judgment is incorrect, Consumers Power Company (Midland Plant, Units ' & 2),
ALAB-123, 6 AEC 331, 348 (1973), or " demonstrate that other assumption.' are more appropriate." Wisconsin Electric Pcwer Co. (Point Beach Nuclear ?l e t Unit 2), ALAB-137, 6 AEC 491, 502 (1973). Accord,0ffshore Power Systems (Floating Nuclear Power Plants), CLI-(September 14, 1979).
17f Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 7
5 NRC 1418, 1421 (1977).
_1,8/ Virainia Electric and Power Company (North Anna Power Station, Units 1 & 2),
8 ALAB-522, 9 NRC S4, 56 (1979).
-19/ Edlow International Co., CLI-76-6, 3 NRC 563 at 576 (1975), quoting from nartn v. aeldin, 4a U.S. 4S0, 499 (1975).
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-9 of consequences particularized to his residence but has, instead, relied upon assertions of wide-scale potential consequences of an accident without any description of the circumstances whereby it might occur.
INTEREST OF MAJORIE M. AAMODT Marjorie M. Aamodt has filed two amended petitions for leave to intervene 20/
since our response to her original petition on September 20, 1979.Her most recent petition states that her residence is approximately 43 miles 21/
from Three Mile Island.~
Her husband, Norman 0. Aamodt, and her daughter, 22/
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Susan E. Aamodt, wish to join her as co-intervenors.
Mr. Aamodt works in Intercourse, Pa., 35 miles from TMI-1. The Aamodts evacuated from their home during the Three Mile Island accident and allege they have suffered economic harm from the accident because former customers no longer perceive 23/
their family farm as a desirable source of food supply.~ We conclude that the Aamodts satisfy the interest requirements of 10 C.F.R. 12.714(a).
INTEREST OF FRIEDA BERRYHILL/C0ALITION FOR NUCLEAR POWER PLANT POSTPONEMENT Frieda Serryhill, Chairman CNPPP, filed a supplemental petition by letter dated September 24, 1979.
20/ A letter addressed to the Secretary of the Commission, dated October 4,
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1979 (Letter) and Petition for Intervention of Marjorie M. Aamodt, filed October 22, 1979.
M/ Petition at 1.
22,/ Ibid.
2 23/ Ibid.
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bb4 Ms. Berryhill states that she resides "approximately 50 mi.as" from Three 24/
Mile Island.-
Although the letter describes Ms. Berryhill's activities in the aftermath of the accident at TMI-2, she has failed te allege how her interest may be affected by this proceeding and has therefore failed 25/
to meet the interest requirements of 10 C.F.R. 52.714(a).-
CONCLUSION For the reasons identified above, we argue that the statement of the Consumer Advocate satisfies the interest requirement of 10 C.F.R. 52.715(c) and the petitions of Marjorie M. Aamodt anu Jane Lee comport with the interest require-ment of 10 C.F.R. 52.714(a). However, Ms. Lee has failed to show good cause for the filing of a late petition and has also failed to identify a litigable cor.tentian. We further argue tnat the petitions of Marvin I. Lewis and Frieda Earryhill fail to identify an interest which may be affected by the proceeding sufficient to establish standing to intervene.
Respectfully submitted, Dlu%. k-l t u.s Bruce A. Berson Counsel for NRC Staff Dated at Bethesda, Maryland this 31st day of October,1979.
24/ Supplemental Petition at 1.
We note that the address provided in the Supple-mental Petition is identical to that provided in the original petition under CNPPP letterhead, Wilmington, Delaware. Wilmington is approximately 75 miles from Three Mile Island.
-25/ The Supplemental Petition also does not resolve the ambiguity we observed in our September 13, 1979 response to her petition regarding whether Ms. Berryhill seeks to represent her own interest or that of CNPPP. The supplemental petition, although on plain letterhead, is signed "Frieda Berryhill, Chairman, CNPPP."
Our conclusien as to interest applies to either circumstance.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING B0aRD In the Patter of METROPOLITAN EDISON COMPANY,
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(ThreeMileIsland, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO AMENDED PETITIONS AND STATEMENTS BEARING ON INTEREST IN THE THREE MILE ISLAND UNIT 1 PROCEEDING RECEIVED BY THE STAFF BETWEEN SEPTEMBER 21, 1979 AND OCTOBER 31, 1979," 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 Comission's internal mail system, this 31st day of October, 1979:
- Ivan W. Smith, Esq.
Ell n Weiss, Esq.
Atomic Safety & Licensing Board Panel ySY$t e N.
U.S. Nuclear Regulatory Commission Suite 506 Washington, D. C.
20555 Washington, D.C.
20006 Dr. Walter H. Jordan Mr. Steven C. Sholly 881 W. Outer Drive 304 South Market Street Oak Ridge, Tennessee 37830 Mechanicsburg, Pennsylvania 17055 Dr. Linda W. Little 5000 Hermitage Drive Mr. Thomas Gerusky Raleigh, North Carolina 27612 Bureau of Radiation Protection Department of Environmental Resources George F. Trowbridge, Esq.
P.O. Box 2063 Shaw, Pittman, Potts & Trowbridge Harrisburg, Pennsylvania 17120 1800 M Street, N.W.
Washington, D. C.
20006 Mr. Marvin I. Lewis 6504 Bradford Terrace Karin W. Carter, Esq.
Philadelphia, Pennsylvania 1914s 505 Executive House P. O. Box 2357 Metropolitan Edison Company Harrisburg, Pennsylvania 17120 Attn:
J. G. Herbein, Vice President P.O. Box 542 Reading, Pennsylvania 19603 Honorable Mark Cohen 512 E-2 Main Capital Building Ms. Jane Lee Harrisburg, Pen: sylvania 17120 R.D. 3; Box 3521 Ih4-y6 Etters, Pennsylvania 17319
' Walter W. Cohen, Consumer Advocate Holly S. Keck Department of Justice Anti-Nuclear Group Representing Strawberry Square,14th Floor York Harrisburg, Pennsylvania 17127 245 W. Philadelphia Street York, Pennsylvania 17404 Robert L. Knupp, Esq.
Assistant Solicitor John Levin Esq.
Knupp and Andrews Pennsylvania Public Utilities Com.
P.O. Box P Box 3265 407 N. Front Street Harrisburg, Pennsylvania 17120 Harrisburg, Pennsylvania 17108 Jordan D. Cunningham, Esq.
John E. Minnich, Chairman Fox, Farr and Cunningham Dauphin Co. Board of Comissioners 2320 North 2nd Street Dauphin County Courthouse Harrisburg, Pennsylvania 17110 Front and Market Sts.
Harrisburg, Pennsylvania.17101 Theodore A. Adler, esq.
- Atomic Safety and Licensing Appeal Board Widoff Reager Selkowitz & Adler Post Office Box 1547 U.S. Nuclear Regulatory Comission Harrisburg, Pennsylvania 17105 Washington, D. C.
20555 Ms M jorie M. Aamodt
- Atomic Safety and Licensing Board Panel f
U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Coatesville, Pennsylvania 19320 Docketing and Service Section U.S. Nuclear Regulatory Comission Ms. Karen Sheldon Washington, D. C.
20555 Sheldon, Hannon, Roisman & Weiss 1725 I Street, N. W.
Robert Q. Pollard Suite 506 Chesapeak Energy Alliance Washington, D. C.
20006
'609 Montpelier Street Baltimore, Maryland 21218 Earl B. Hoffman Dauphin County Comissioner Chauncey Kepford Dauphin County Courthouse Judith H. Johnsru6 Front and Market Streets Environmental Coalition on Nuclear Power Harrisburg, Pennsylvania 17101 433 Orlando Avenue State College, Pennsylvania 16801 Ms. Frieda Berryhill, Chairman Coalition for Nuclear Power Plant 4
)).
Postpe.iement
/ 6e V-s 2610 Grendon Drive Wilmington, Delaware 19808 Marcia E. Mulkey
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Coun el for NRC Staff 1434 337