ML19224A628
| ML19224A628 | |
| Person / Time | |
|---|---|
| Site: | New Haven |
| Issue date: | 03/29/1979 |
| From: | Swanson D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19224A629 | List: |
| References | |
| NUDOCS 7904270380 | |
| Download: ML19224A628 (11) | |
Text
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g UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION i-BEFORE THE ATOMIC SA y Y A';D LICENSING BOARD
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%L2 In the Matter o,.
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NEW YORK STATE ELECTRIC AND GAS CORP.
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AND LONG ISLAND LIGHTING CO.
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Docket Nos. STN 50-596
)
STN 50-597 (New Haven 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO THE PETITIONS TO INTER-VENE FILED BY ECOLOGY ACTION, SAFE ENERGY FOR NEW HAVEN, AND THE OSWEGO COUNTY FARM BUREAR" and NRC STAFF RESPONSE TO THE PETITION FOR LEAVE TO INTERVENE FILED BY MEXICO CENTRAL SCHOOL DISTRICT" 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 March,1979:
Seymour Wenner, Esq., Chairman
- Stanley B. Klimberg, Acting Counsel Atomic Safety and Licensing Board New York State Energy Office U.S. Nuclear Regulatory Commission 2 Rockefeller Plaza Washington, DC 20555 Albany, NY 12223 Dr. Oscar H. Paris, Member
- David A. Engel, Esq.
Atomic Safety and Licensing Board New York State Department of U.S. Nuclear Regulatory Commission Environmental Conservation Washington, DC 20555 50 Wolf Road Albany, NY 12233 Dr. Walter H. Jordan, Member Atomic Safety and Licensing Board Linda Clark 881 West Outer Drive Safe Energy for New Haven Oak Ridge, TN 37830 Box #22 - RD #1 Mexico, N.Y.
13114 Roderick Schutt, Esq.
Huber, Magill, l.awrence
& Farrell Helen Daly 99 Park Avenue Ecology Action New York, NY 10016 W. River Road - RD #5 Oswego, N.Y.
13126 Michael Flynn, Esq.
Robert Gray, Esq.
Nancy K. Weber Craig Indyke, Esq.
RD #3 State of New York Department itexico, N. f.
13114 of Public Service Enpire State Plaza Albany, NY 12223 g'),
7904270386 452 160
, Paul Voninski Atomic Safety and Licensing Board Mexico Academy and Central School Panel
- Mexico, N.Y.
13114 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Atomic Safety and Licensing Appeal Panel (5)*
Docketing and Service Section (4)*
U.S. Nuclear Regulatory Commission Office of the Secretary Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
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/ 5-lwe Daniel T. Swanson Counsel for NRC Staff W
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cf> *P BEFORE THE ATOMIC SAFETY AND LICENSING BOARD X A'
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In the Matter of
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NEW YORK STATE ELECTRIC AND GAS
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Docket Nos. STN 50-596 CORP. AND LONG ISLAND LIGHTING CO. )
STN 50-597
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(New Haven 1 and 2)
)
NRC STAFF RESPONSE TO THE PETITIONS TO INTERVENE FILED BY ECOLICY ACTION, SAFE ENERGY FOR NEW HAVEN, AND THE CSWEGO COUNTY FARM BUREAU I.
BACKGROUND On February 9,1979, the U.S. Nuclear Regulatory Commission (Commission) pub-lished in the Federal Register (44 Fed. Reg. 8392) Notice of Hearing on the applica-tion for construction permits for NYSE&G 1 and 2 (since changed to New Haven 1 and 2). The notice provided that any person whose interest may be affected could submit a petition for leave to intervene in accordance with 10 CFR S 2.714 by March 12, 1979.
On March 8,1979, Suzanne Weber and Helen Daly sent a Petition To Intervene in this proceeding on behalf of Ecology Action (EA) as un organization, its members, and the public. On March 10, 1979, Linda Clark, on behalf of Safe Energy for New Haven (SENH) individually, its members, and the public, also submitted a Petition To Intervene in this proceeding. Also, Nancy Weber and James Bishop filed an undated Petition To Intervene for the Oswego County Farm Bureau (OCFB), which seeks to intervene in this proceeding on behalf of its members. The Petition was postmarked March 12, 1979.
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. The response of the Commission Staff (Staff) is set forth below in which the Staff finds that the Petitions by SENH, Ecology Action, and OCFB satisfy the requirements of 10 CFR S 2.714 regarding interes,t, but fail to specify the aspects of the proceeding upon which intervention is sought. In light of the similarity of interests and concerns represented in the Petitions, the Staff has consolidated its responses to the three Petitions into this single document.E II. PETITIONS POSSESS THE REQUISITE INTEREST TO ESTABLISH STANDING AS A MATTER OF RIGHT As stated in the notice, a petition for leave to intervene must satisfy the require-ments of 10 CFR S 2.714 of the Commission's Rules of Practice. This regulation directs that a petitioner set forth his or her interest in the proceeding and how such interest might be affected by the result thereof, including the reasons why intervention should be permitted. 10 CFR S 2.714(a)(2). In this regard, con-sideration is to be given to the nature of the petitioner's right to be made a party, the nature and extent of petitioner's property, financial or other interest in the proceeding and the possible effect on such interest of any order entered in the proc eeding. 10 CFR S 2.714(d). Also to be stated in a petition are the specific aspects of the subject matter of the proceeding on which intervention is sought.
10 CFR S 2.714(a)(2),
-1/
The Staff is in receipt of " Applicant's (sic) Answer to Petitions to Inter-vene", dated March 20, 1979 which references, among others, Petitions submitted by EA, SENH, and OCFB, However, the Applicants did not indicate in that document whether they are supporting or opposing the referenced Petitions.
3
. It is well settled that judicial concepts of standing are controlling in determining whether a petitioner has satisfied the foregoing requirements. Port and General l
Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-614 (1976). Consequently, a petitioner must show " injury in fact" and that such interest is "' arguably within the zone of interest' protected by the statute. " Portland General Electric Company, suora.
An organization may gain standing to intervene based on injury to itself or to its mem-bers. If the organization seeks standing on its own behalf, it must establish that it will be injured and that the injury is r at a generalized grievance shared in sub-stantiall : equal measure by all or a large class of citizens. In the Matter of Ten Applications, CLI-77-24, 6 NRC 525, 531 (1977). On the other hand, an organization can establish standing through members of the organization who have interests which may be affected by the outcome of the proceeding. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-322, 3 NRC 328, 330 (1976). At the same time, when on organization claims that its standing is based on the interests of its members, the organi-zation must identify specific individual members whose interest might be affected by the proposed action, describe how the interests of each of those members might be affected and show that each of those members has authorized the organization to act on his behalf. Allied Ge wral Nuclear Service _,,et al (Barnwell Fuel Receiving Station and Storage Station), ALAB-328, 3 NRC 420, 422-23 (1976).
452 16
As stated above, both EA and SENH claim to represent the interests of not only the members of the organiu. ion, but also allege potential injury to the organiza-tions themselves. In addition, the two groups claim to represent the interests of the public. Leaving aside, for the moment, the questions whether EA and SENH have adequately stated the interests of their members and why they should be permitted to represent them in this proceeding, the Staff first examines the group ='
ability to represent the public, and whether they have adequately stated potential injury to the organizations.
The first claim, that the two groups may represent the public, this proceeding,
may be readily dismissed. The Atomic Safety and Licensinh ard has declared that Commission regulations do not permit parties to participate as private attorneys general on behalf of the public, and that an organization acting as an interven r may not claim to represent the public interest in general in addition to representing the specialized interests of its members. Lone Island Lichting Co. (Shoreham Nuclear Power Station, Unit 1), LPB-77-11, 5 NRC 481, 483-84 (1977), and cases cited therein.
Similarly, EA and SENH's claim of potential injury to themselves as organizations must fail. As noted previously, an organization seeking standing on its own behalf must establish that the claimed injury is not a generalized grievance shared in 452 165
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substantially equal measure by all or a large class of citizens. Te1 Applica tion s,
suora, at 531. Both groups claim as purposes for thcf r existence the protection of natural resources and the physical environment of the region. in addition, the groups claim to have " actively sought to promote z.nd represent the public interest in protecting the Central New York environment from unwarranted and unlawful exploitation and degradation by public utilities.
." SENH and EA Petitions, p. 1. The Staff submits that neither group has alleged a cpecialized interest that would separate them from a more generalized grievance shared in substantially equal measure by a large class of citizens. Accordingly, the Staff submits that EA and SENH likewise fail to assert a potential injury to themselves as organiza-tions that is sufficient to permit them to gain party status in this proceeding.
However. the Staff readily agrees that the interests asserted by all three groups on behalf of their individual members satisfy the requirements of 10 CFR $ 2.714(a).
AE, SENH, and OCFB all claim to represent members who reside in and around New Haven and surrounding Oswego County. Furthermore, all groups assert general concerns about the impact of low-level and accidental releases of radiation from the facility. The OCFB concentrates its concerns more on impacts of radt. + ion on agricultural production, in addition to other general concerns, while AE and SENH include as concerns the impact of operation on their aesthetic and recreational enjcyment of the region.$/ Accordingly, the Staff submits that the three groups have asserted valid interests on behalf of their members.
$/ In this regard, the Staff notes that paragraph numbers 4 and 5 of both the AE and SENH Petitions, which include the statement of concerns and how their interests may be affected by the operation of the prcposed facility, are identi-cally worded.
452 166
None of the three Petitions include the names,of any individual members of the groups nor where any members specifically reside or work. Hon..er, each Petition is signed by an officer of the group. The officers of SENH and OCFB, Linda Clark and James Bishop, respectively, ?ist as th'eir addresses villages close to New Haven. One of the signatories to the EA Petition, Helen Daly, is listed as being the Intervention Coordinator for EA. SN lists her address as being in Oswego, which also is close to New Haven. The Staff concludes that since at least one member of each of the organizations resides sufficiently close to the proposed site, they confer to the organizations sufficient interest to satisfy the interest requirement of ~ 0 CFR S 2.714(a). See, Virginia Electric and Power Co. (North Anna Nuclear Power J ution, Units 1 and 2), ALAB-522, 9 NRC slip op. at 3 (January 26, 1979).
A further requirement imposed upon organizations that seek to represent members in an NRC proceeding is for the organizations to indicate that their members have authorized the organizations to act on their behalf. As stated above, the Petitions filed on bahalf of SENH and.OCFB were signed by ranking officials of the respective organizations who themselves have the requisite interest to support an intervention pe tition. This fact alone satisfies the authorization requirement. Duke Power Co.
(Amendment to Licence SNM-1773), ALAB-528, 9 NRC
, slip op. at 10 (Feb-ruary 26.1979). The President of EA signed the EA Petition, but did not specify her residence and therefore does not supply the requisite information for the Staff to conclude that she alone has sufficient interest in the proceeding. The second signatory to the EA Petition, Helen Daly, does have the requisite interest to support 452 iCU
. an interventian petition. Furthermore, although *he EA Petition does not so specify, the Staff considers that Helen Daly, as " Intervention Coordinator", probably possesses the requisite rank in EA to qualify her as a " ranking official" official within the meaning of Duke Power Co., supra. Accordingly, the Staff submits that all three groups have adequately satisfied the requirement that they demon-strate authorization by their members to represent them in this proceeding.
The Staff concludes that EA, SENH, and OCF3 have demonstrated that they possess the requisite interest to be permitted to intervene as a matter of right. Thus, the Staff does not i. ave to reach the alternate consideration of whether they should be permitted to intei vene as a matter of discretion.
III. PETITIONERS HAVE NOT ADEQUATEI,Y IDENTIFIED THE ASPECT 3 OF THE PROCEEDING FOR WHICH
_ INTu. VENTION IS SOUGHT As noted abcve, a petitic,n, in addition to setting forth a petitioner's interest and the effects ther eon, must identify the specific aspect (s) as to which inter-vention is sought. Each of the instant petitions are deficit in this respect.
Discussing each petition in turn, the OCFD Petition contains a list of generalized
" interests" at page 2.
However, OCFB has not declared that these are, in fact, the subject matters of their intended participation. With respect to the EA and SENH Petitions, they also only contain.3me very general concerns that are asserted in support of the petitioners' clain that they have the requisite interest to gain party status in this proceeding. Nowhere have petitioners set out the specific aspects as M which intervention is sought.
452 168
. The Staff submits that the mention of general concerns or interests does not satisfy the requirement that a petitioner must identify the specific asepcts of the proceeding upon which he wishes to participate. Accordingly, the Staff submits that the petitioners should be required to amend their Petitions to identify the specific aspects of the proceeding as to which intervention is sought. See,10 CFR S 2.714(a)(3). However, since contentions reflect, in fact, a refinement of the specific aspects which are to be set forth in the initial pe tition, and must be submitted not later than 15 days prior to the first pre-hearing conference, which is the same time frame provided for amendment of petitions without leave of the Board, the Staff recommends that EA, OCFB, and SENH be permitted to consolidate the identification of the specific aspects of the proceeding on which intervention is sought with their delineation of con-tentions.
In view of our position that Petitioners have satisfied the " interest require-ments" of 10 CFR S 2.714, the Staff will make an effort, consistent with the Commission's views as stated in the Statement of Consideration accompanying the recent amendment of 10 CFR S 2.714, 43 Fed. Rg.17798, to meet with Petitioners in an attempt to arrive at a stipulation of contentions to be submitted to the Board.
X;,
ION For the foregoing reasons, the Staft _oncl
'es that EA, SENH, and OCFB have satisfied the requirements of 10 CFR S 2.714 regarding interest, but have not 452 iM
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provided 'he specific aspects of the proceeding' ort which intervetion is sought.
The Staff submits that the petitioners should be permitted to consolidate their specification of the aspects of the proceeding with their submission of conten-tions in a supplement to their Petitions not later than 15 days prior to the first prehearing conference.
Respectfully submitted, l{preh 5 h Wo w Daniel T. Swanson Counsel for NRC Staff Dated at Bethesda, Maryland this 29th day of March,1979 452 170