ML19224A651
| ML19224A651 | |
| Person / Time | |
|---|---|
| Site: | New Haven |
| Issue date: | 04/02/1979 |
| From: | Swanson D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7905100178 | |
| Download: ML19224A651 (12) | |
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04/02/79
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NUCLEAR REGULATORY CO:etISS10N f,
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BEFORE THE ATOMIC SAFETY Ah ') LICENSING BOARD
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NEW YORK STATE ELECTRIC AND GAS CORP.
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AND LONG ISLAND LIGIITING CO.
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Docket Nos. STN 50-596
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STN 50-597 (New Haven 1 and 2)
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NRC STAFF ANSWER TO PETITIONS TO INTERVENE FILED IN COLUMBIA / ULSTER COUNTY AREA I.
BACKGROUND On February 9, 1979, the U.S. Nuclear Regulatory Comnission (Commission) published in the Federal Register (44 Fed. Reg. 8392) Notice of Hearing on the application 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 leav: to intervene in accord-ance with 10 CFR M2.714 by March 12, 1979.
The following petitions have been received by the NRC Staff from municipal-ities and organizations located in the Columbia / Ulster County Area.
An undated Petition to Intervene of Columbia County, Town of Stuyvesant, and Concerned Citizens For Safe Energy, Inc. (Col.
Co., et al. Petition) was submitted, accompanied by an affidavit in support of the Petition dated March 12, 1979.
On March 13, 1979, the Town of Gardiner filed a Petition For leave to Intervene (Gardiner Petition).
'Ihe Ulster County Environmental Managenent Council submitted a Petition For Leave to Intervene (EMC Petition) on March 15, 1979.
Also, a Petition to Intervene of Mid-Hudson Nuclear Opponents, Inc. (MHNO Petition) was filed on March 19, 1979.
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The response of the Commission Staff (Staff) is set forth below in which the Staff finds that all of the Petitions fail to satisfy the requirements of 10 CFR M2.714 regarding interest, and that Gardiner and EMC 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 Petitions into this single document.
.w II.
PETITIONERS DO NOT POSSESS THE REQUISITE INTEREST TO ESTABLISH STANDING AS A MATTER OF RIGHT A.
Petitioners Lack Standing to Intervene As stated in the notice, a petition for leave to intervene must satisfy the requirements of 10 CFR 62.714 of the Commission's Rules of Practice.
This regulation directs that a petitioner set forth his or her interest in the proceeding and hcw such interest might be affected by the result thereof, including the reasons why intervention should be permitted.
In this regard, consideration 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 proceeding.
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 92. 714 (a) (2).
It is well settled that judicial concepts of standing are controlling in determining whether a petitioner has satisfied the foregoing requirements.
P;rtland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-614 (1976).
Consequently, a petitioner 452 I l'J
. must show injury in fact" and that such interest is "' arguably within the z( ne of interest' protected by the statute."
Portland General Electric Company, supra.
An organization may gain standing to intervene based on injury to itself
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or to its members.
If the organization seeks standing on its own behalf, it must establish that it will be injured and that the injury is not a generalized grievance shared in substantially 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 hend, an crganization 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 Iadiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976).
At the same time, when an organization claims that its standing is based on the interests of its members, the organization 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 General Nuclear Service, et al.
(Barnwell Fuel Receiving Station and Storage Station), ALAB-328,, 3 NRC 420, 422-23 (1976).
The Staff submits that the Petitioners all fall to satisfy the regulatory requirements regarding a showing of standing, in that they have failed to demonstrate a potential injury to themselves or to their representatives.
It is true that a petitioner may base standing upon a showing that his or her residence is "within the geographical zone that might be affected by an accidtr.tal release of fission products." Louisiana Power & Light Company 452 1 IJ7
. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 n.6 (1973).
ha specific distance from the plant has evolved f rom the decisions to define the outer boundary of this geographical zone.
The Appeal Board has found that a licer sing board "cannot be tarred with the brush of irrationality" for presuming that someone who carries on everyday activities within 25 miles of the plant has an interest.
Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 (1974).
It has even gone so far as to say that 50 miles "is not so great as necessarily to have precluded a finding of standing based upon residence".
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2)) ALAB-413, 5 NRC 1418, 1421 n.4 (1977).
However, each of the Petitioners claims to repre-sent residents in Ulster and Columbia Counties.1/ Through the use of a N.Y.
state map and a mileage guide, the undersigned has made a rough calculation of the distances frcm the site to the two counties, and has estimated that the distance to the nearest boundary of Ulster County is about 130 miles, and to Columbia County, about 145 miles.
This distance, in the absence of a special interest in the outcome of the proceeding, precludes a finding that Petitioners have an interest which is sufficient to confer standing upon them in this proceeding.
See e.g.,
Public Service Company of Oklahome et al. (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143', 1150 (1977)
(in ruling on an untimely petition where the petitioner lived 125 miles from the site and occasionally visited near it, the Appeal Board found there was "no conceivable justification" for allowing intervention fa the absence of
-1/ Each of the petitioners, except MINO, specifically state they are repre-senting residents of Ulster or Columbia counties.
Although the MUNO Petition does not identify any individual members, it claims to repre-sent members south of Albany and north of Newburgh, which is in fact the Ulster / Columbia County region.
The signatory to the MHND Petition states as a mailing address New Platz, which is in the same area.
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. a showing of the petitioner's ability to co,ntribute to the proceeding since, among other things, petitioner's interest was "' remote'"); Beaver Valley, supra (intervention was denied where the only identified member of the petitioning organization lived seveial hundreu miles from the site).
Some of the Petitions contain the assertion that members of the Petitioners are concerned about the cost and supply of power in the state should the facilities be operated.
However, it is well settled that economic interest
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of a ratepayer is not sufficient to allow standing to intervene as a matter
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of right since concern about rates is not within the zone of interests souglt to be protected by the Atomic Energy Act or the National Environmental Policy Act.
Portland General Electric Co.,
(Pebble Springs Nuclear Plant, Units 162), ALAB-333, 3 NRC 804, 806 (1976).
The Col. Co. Petition also contains the concern that, as a result of the construction of the New Haven facility, there would be a new transmission line run through Columbia County.
However, this allegation does not comport with the application in this proceeding.
The Applicants, in their Environ-2 mental Report accompanying the application for the New Haven 1&2 facility, in connection ilth the propose only to build two new transmission 11 proposed project, neither of which would come close to Columbia or Ulster ies.
ER, 83.9.1.
Accordingly, this claim of potential injury also fa:
to withstand scrutiny.
A final asserted interest in the proceeding is made by Col.
Co., et al. that the outcome of the NRC licensing proceeding for New Haven could somehow affect the outcome of some hypothetical future licensing proceeding involving 452 11D
. a site at Stuyvesant, located in Columbia County. /
2 Not only is the possi-bility of a future NRC licensing proceeding involving the Stuyvesant site sufficiently speculative as to preclude that possibility from providing sufficient interest to gain standing in the New Haven proceeding, but even if there were a proceeding invol Ang Stuyvesant at some future date, the consideration of issues in the New Haven proceeding would not preclude persons who were nonparties to that proceeding from raising the same issues in the Stuyvesant proceeding.
In this regard, the Staff notes that the Appeal Board ruled that the mere fact a person is an intervenor in one pro-ceeding does not, in a6d of itself, bestow standing for that person to become a party in another proceeding where the same issue is being litigated, where the sole purpose of seeking to participate in the second proceeding is to protect himself from an adverse precedent.
Consolidated Edison Co. of N.Y.,
Inc. (Indian Point Nuclear Power Station, Units 1-3), ALAB-304, 3 NRC 1 (1976).
The reasoning of the Appeal Board was that "there are no principles of res judicata or collateral estoppel which could make legally binding upon them any decision which we reach on factual issues in this proceeding if they do not participate here."
Id. at 5.
That same principle protects Petitioners froa being precluded from litigating an issue at some future proceeding merely because it was the subject of a licensing board decision in this proceeding.
Accordingly, this interest is also without merit.
Ia sum, the Staff concludes that the Petitioners have failed to state an interest that may be affected by this proceeding.
In our discussion, the Staff has not focused on such other deficiencies as the failure of the
-2/ In this regard, the Staff notes that the NRC has not received an appli-cation for a license to construct a facility at Stuyvesant, and the instant application involves the New Haven site only.
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. Petitioners who are membership organizations to identify individuals, where they live, how they might be affected by t iis proceedin,;, and that they authorize the groups to represent them in this proceeding.
However, the Petitions contain sufficient information for the Staff to conclude that all such members would fail to satisfy the interest requirements for the reasons outlined above, that the groups and their members or constituents reside sufficiently far from the proposed New Haven site as to have interests that are too remote to fall within the zone of interests sought to be protected.
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B.
The EMC, Gardiner, and MHNO Petitions Fall to Overcome the Obstacle of Being Untimely As previously stated, petitions to intervene were to be filed by March 12, 1979.
Despite this deadline, the Gardiner, D1C and MHNO Petitions were all filed after that date.
The Commission's regulations provide that:
"The petition... shall be filed not later than the time speci-fled in the notice of hearing....
Nontimely filings will not be entertained absent a determination by the that the petition and/or request should be granted based upon a balanc-ing of the following factors in addition to [those addressed previously regarding standing]:
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(1) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner'r's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding."
10 CFR M2. 714 (a)(1)
Despite this requirement, Gardiner, DiC and MHNO %vc failed to address these factors, except to allege as good cause for their tardiness in filing that they weren't aware until recently that alternate sites were being considered
. in Columbia and/or Ulster Counties. HowcVer, the Stuyvesent site, located in Colut bia County has been indicated as a potential alternate site since the Applientior. was filed with the NRC.
More pertinent, however, is that the selection of an alternate site near a potential intervenor does not confer standing upon that person unless he has an interest that may be affected by the outcome of the proceeding; i.e.
that the person may be affected by the construction and/or operation of the proposed facility at the proposed site.
For these reasons, the NRC Staff believes that good 4-cause for fil'ag a petition out of time has not been established.
- Further, as noted above, the other factors of 10 CFR E2.714 have not been addressed.
The Staff will not analyze these other factors of 10 CFR 62.714 that must be considered in determining whether untimeliness is a bar,3/ in detail in view of the fact that petitioners are all located sufficiently distant from the proposed New Haven facility that their interests are.too remote to be affected by any facility at New Haven.
Further, any nuclear facilities proposed in their geographical zone of interest would be the subject of a separate proceeding for which they would receive notice.
For these reasons, the NRC Staff believes the other factors also weigh against petitioners.
For the same reasons, the Staff will not dwell on the other deficiencies of some of the Petitions.4/
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In this regard, the Staff feels that a delay of a few days in filing the Petitions should probably not, in and of itself, be a bar to intervention.
-4/ For example, the Gardiner and EMC Petitions fail to identify the specific aspects of the proceeding upon which intervention is sought.
As indicated ecrlier, this specif! cation is a requirement that must be met by a petitioner before he can gain admission.
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Conclusion The Staff concitdes that the Petitioners have failed to demonstrate an interest that may be affected by the proceeding.
That fatal defect is coupled with the failure of Cardiner, EMC, and MHNO to address the factors of 10 CFR 92.714 for their failure to file on time.
Accordingly, the Petitioners should not be permitted to intervene as a matter of right.
III.
THE PETITIONERS SHOULD NOT BE PERMITTED TO
-4' INTERVENE AS A MATTER OF DISCRETION Even if the Petitioners are not entitled to intervene as a matter of right, the Board could grant the Petition as a matter of discretion.
In general, this consideration should be guided by the circumstances of the case and the factors set forth in 10 CFR M2.714(a) (regarding considerations relevant to untimely petitions for leave to intervene), as well as the standard factors set forth in 10 CFR 92.714(d).
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976).
The Appeal Board has delcared that:
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"in the vast majority of instances the pivotal factor in determin'.ng whether to grant discretionary intervention will be that of the ability of the petitioner to make a valuable contribution to the development of a sound record, on a safety or environmental issue which is raised by him and appears to be of enough importance to call for Board consideration."
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1&2), ALAB-413, 5 NRC 1418, 1422 (1977).
The Petitions are silent on this point.
Accordingly, the Board has no basis upon which to determine that Petitioners could make a valuable contribution to the proceeding.
Absent such a showing of ability to make a valuable contribution to the proceeding by, for examine, a demon-stration of expertise on a relevant issue, the Staff submits that it would 4S2 124
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be improper to grant l'etitioners intervention in this proceeding as a matter of discretion.
IV.
CONCLUSION On the basis of the foregoing, the Staff concludes that Col.
Co., et al.,
Gardiner, EMC, and MHNO have f ailed to establish standing to in+ervene either as a matter of right or discretion. Accordingly, the Staff urges the Board to deny their Fetitions.
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Respectfully submitted,
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M Daniel T.
Swanson Counsel for NRC Staff Dated at Bethesda, Maryland this 2nd day of April, 1979
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UNITED STATES OF AMERICA hUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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NEW YORK STATE ELECTRIC AND CAS CORP.
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AND LONG ISLAND LIGHTING CO.
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Docket Nos. STN 50-596
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STN 50-597 (New Haven 1 and 2)
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CERTIFICATE OF SERVICE
'A' I hereby certify that copies of "NRC STAFF ANSWER TO PETITIONS TO INTERVENE FILED IN COLUMBIA / ULSTER COUNTY AREA" 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 2nd day of April, 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
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Atomic Safety and Licensing Board Linda' Clark 881 West Guter Drive Safe Energy for New haven Oak Ridge, TN 37830 Box #22 - RD #1 Mexico, N.Y.
13114 i
Roderick Se'iutt, Esq.
Huber, Mag.
Lawrence i
& Farrell Helen Daly 99 Park Avenue Ecology Action New York, NY 10016 W. River Road - RD #5 Osweno, N.Y.
13126 Michael Flynn, Esq.
Robert Gray, Esq.
Nancy K. Weber Craig Indyke, Esq.
RD !3 State of New York Department llexico, N.Y.
13114 of Public Service Empire State Plaza Albany, NY 12223 452 12]$
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. Robert J. Kafin Mr. Paul Voninski Attorney for Columbia County, Mexico Academy and Central School Town of Stuyvesant and Concerned Mexico, NY 13114 Citizens for Safe Energy, Inc.
11 Chester Street, P. O. Box 765 Atomic Safety and Licensing Board Glens Falls, NY 12801 Panel
- U.S. Nuclear Regulatory Commission
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William Keeping, Supervisor Washington, DC 20555 Town of Gardiner Cardiner, NY 12525 Atomic Safety and Licensing Appeal Panel (5)*
Dr. Stephen J. Egemeier, Chairman U.S. Nuclear Regulatory Commission Environmental Management Council Washington, DC 20555 300 Flatbush Avenue Kingston, NY 12401 Docketing and Service Section (4)*
Office of the Secretary Peter D.
G.
Brown U.S. Nuclear Regulatory Commission Chairman of the Board -
Washington, DC 20555 Mid-Hudson Nuclear Opponents P.O.
Box 666 New Paltz, NY 12561 cb ur.m Daniel T. Swanson Counsel for NRC Staff 4S2 127