ML19225B223
| ML19225B223 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 06/27/1979 |
| From: | Bowers E, Cole R, Kornblith L Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7907240300 | |
| Download: ML19225B223 (12) | |
Text
.
June 27, 1979 NRC PUBLIC DOCUMENT ROOM rp y
3 UNITED STATES OF AMERICA c
NUCLEAR REGULATORY COMMISSION ft
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ATOMIC SAFETY AND LICENSING BOARD I-G c, A M
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"'RVED g-g %$ni In the Matter of
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ic, 6 J TEXAS UTILITIES GENERATING COMPANY,
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Docket Nos. 50 -445 c
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50-446 (Comanche Peak Steam Electric
)
Station, Units 1 & 2)
)
ORDER RELATIVE TO STANDING OF PETITIONERS TO INTERVENE On February 5, 1979, the Nuclear Regulatory Commission (NRC) issued a notice in the Federal Register of the " Availability of Applicants ' Environmental Report, Consideration of Issuance of Facility Operating Licenses, and Opportunity for Hearing" for Comanche Peak.
The notice stated that a petition for leave to intervene must be filed by March 5, 1979.
Timely petitions were received from the State of Texas for participation as an interested state, Citizens Association for Sound Energy (CASE), Citizens for Fair Utility Regulation (CFUR) and the Te::as Association of Community Organizations for Reform Now/ West Texas Legal Services (ACORN /WTLS).
On May 22, 1979, the Licensing Board for the review of petitions held a prehearing conference in Glen Rose, Texas.
All petitioners were present as well as the Applicants and NRC 415 243 m Sc>o 1907-
. Staff.
In a conference call several weeks prior to the prehearing conference, the Petitioners informed the Board, Applicant; and the Staff that they would be filing numerous contentions fifteen (15) days prior to the prehearing conference.
The Board determined that the Applicants and Staff could ibnit their response to the question of " interest" and hether the Petitioners have at least one contention meeting rne requirement of 10 CFR 52.714 since these are the minimal requirements for " standing" as an Inter-
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venor.
The Petitioners, Applicants, anc the Staff were also told that they would have the opportunity to further explain their positions at the prehearing conference and to respond to the Board's questions.
INTEREST 10 CFR 52.714(a)(2) requires a petitioner to ' set forth his or her interest in the proceeding and how such interest may be affected by the result.
The Board has a responsibility to consider the nature of the petitioner's right to be made a party, the nature and extent of the petitioner's property, financial, J. /
Confirmed by the Board's Order of May 9,1979.
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. or other interest in the proceeding and the possible effect on such interest of any order entered in the proceeding.
10 CFR S2.714(d)(1)(2)(3).
The petition should also identify the specific aspect or aspects of the subject matter of the pro-ceeding as to which petitioner wishes to intervene.
10 CFR 52.714(a)(2)(3) and (b).
The Board will consider these
" contentions" separately.
The Atomic Safety and Licensing Appeal Board has applied the judicial concepts of standing in determining whether a petitioner has satisfied the above requirements.
Portland General Electric Company (Pebble Springs Nuclear Plant,-
Units 1 & 2), CLI-76-27, 4 NPC 610, 613-614 (1976); Public Service Comoany o f Oklahoma, et al.
(Black Fox Station, Units 1 & 2), ALAB-397, 5 NRC 1143,1144-1145 A petitioner must show " injury in fact" and further demonstrate that such interest is "' arguably within the zone of interest' protected by the statute."
Portland General Electric Cc.,
supra.
Particular attentirn is to be given to the above elements in connection with operating license proceedings to assure that petitioners have the required interest to warrant a hearing.
Cincinnati Gas & Electric Co., et al.
(William H.
Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8,12 (1976).
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. An organization can establish standing through its members whose interests may be affected.
Public Service of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-322, 3 NRC 328, 330 (1976).
The specific members must be identified, how their interes ts may be affected must be shown,and the members' authorization to the organization must be stated.
Edlow International Company (Agent for the Government of India on Application to Export Special Nuclear Material),CLI-76-6, 3 NRC 563, 574 (1976).
Allied General Nuclear Services, et al,.
(Barnwell Fuel Receiving and Storage Station),ALAB-328, 3 NRC 420, 422 (1976).
The requirements of 10 CFR S2.714 may be met by showing that one of its members lives "within the geographical zone that might be affected by the accidental release of fission products."
Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3),ALAB-125, 6 AEC 371, 372 n.6 (1973).
On January 26, 1979, the Appeal Board held that geographic proxLmity of a member's residence to a nuclear plant is enough, standing alone, to establish the interest requirements of 10 CFR 52.714.
Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-522, 9 NRC 54 (1979).
Although no specific distance from a nuclear power plant has evolved from Commission decisions to define the outer boundry of the 415 246
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" geographic zone of interest," distances up to approximately 50 miles have been found not to be so great as to preclude a findin3 of standing based on residence.
Tennessee Vallev Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1421 n. 4 (1977).
Recently, the Appeal Board considered organizational petitioners and noted that the utility did not and could not successfully challenge the personal standing of a member of an organization who alleged close proximity of residence coupled with an allegation of possible injury resulting from the operation o f the plant,
Houston Lighting & Powar Co. (South Texas Project, Units 1 & 2), ALAB-549, NRC (May 18, 1979).
We read ALAB-549 as consistent with prior Appeal Board decisions cited herein.
The Applicants have strongly urged that none of the Petitioners under 10 CFR 52.714 have established " interest whereas the Staff supports the recognition of " interest" for CASE, CFUR, and ACORN.
CONTENTIONS 10 CFR 52.714(b) provides as follows :
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. Not later than fifteen (15) days prior to the holding of the special prehearing conference pursuant to 52.751a, or where no qpecial pre-hearing conference is held, fifteen (15) days prior to the holding of the first prehearing conference, the petitioner shall file a supple-ment to his petition to intervene which must include a list of the contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity.
A petitioner who fails to file such a supplement which satisfies the requirements of this paragraph with respect to at least one contention will not be permitted to participate as a party.
Additional time for filing the supplement may be granted based upon a balancing of the factors in paragraph (a)(1) of this section.
The Board recognizes that Petitioners who have not had prior experience in this type of proceeding and in some cases are proceeding'without counsel may not state contentions with absolute clarity.
Our criterion is whether there is at least one proposed contention which meets the requirements of 10 CFR 52.714(b).
The Applicants have taken the position that none of the Petitioners have submitted an acceptable contention whereas the Staff has taken the position that CASE, CFUR, and ACORN have at least one acceptable contention.
(CASE Contention 19, CFUR Contention IV, and ACORN Contentions 16, 17, 18, and 19).
The Staff suggested new language to encompass all the concerns expressed by the Petitioners in its response of May 17, 1979.
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. PETITIONS Applying the rationale stated above for the consideration of " interest" and contentions, the Board has made the following determinations relative to each Petitioner:
CASE The petition of February 28, 1979, stated that majority of its membership live in the Dallas / Fort Worth 'metroplex" area (35 to 60 miles from the plant).
The affidavit of members Edward and Marilyn Stinson was attached.
The Stinsons live five (5) miles from *-Se plant.
They support the contentions and authorize CASE to represent them.
The petition stated that the alth and safety of its members will be affected by the routine operation or an accident at the plant.
The Board has determined that CASE has satisfied the " interest" requirement for its membership but not for the " general public" as alleged.
The Board agrees with the Staff that Contention 19 (May 7, 1979, filing on page 57) meets the requirements of 10 CFR 52.714(b) as supported by other statements in the petition.
A 4 r, 249 is
. CASE is admitted as an Intervenor in this proceeding.
CFUR The petition of March 3, 1979, states that its members reside and either work or attend school in Tarrant County, Texas, approxLmately 35 miles from the Comanche Peak plant.
An affi-davit of a founding member (1976) Nancy Holdam Jacobson of Fort Worth was attached.
The affidavit of a second founding member, Richard L. Fouke (also of Fort Worth) was attached to 2/
the Supplement of May 7, 1979.-
The petition states that the health, safety, and value of property of its members may be affected by the routine operation or any accident involving releases of radioactive elements at Comanche Peak.
The Board has determined that CFUR has satisfled the
" interest" requirement fo_ its membership.
CFUR is proceeding pro se,.
When it received the Staff response of May 17, 1979, to contentions filed on May 7,1979, it determined that the language suggested by the Staff relative
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Both members recite that they are authorized to represent CFUR members.
The May 7, 1979, Supplement was cosigned by these members.
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to its quality assurance / quality control contentions was un-acceptable.
At the prehearing on May 22, 1979, CFUR handed to the Board and parties "First Corrections to Supplement After considerable discussion, CFUR requested a few days to further consider its new document.
On May 29, 1979, it filed 3/
a motion for leave to amend.-
The Applicants protested on June 13, 1979, that the motion was out of time and that none of the contentions meet 10 CFR 52.714(b).
On June 18, 1979, the Staff supported the ration, particularly for a pro se petitioner, even though it is out of time.
The Staff recognized Contentions IVA-IVH2 as meeting the requirements of 10 CFR 52.714(b).
The Board has determined that it has discretion to grant the motion and that Contentions IVA-IVH2 meet the requirements of 10 CFR 52.714(b) and CFUR is admitted as an Intervenor in this proceeding.
ACORN /WTLS The petition of March 3,1979, stated that the operation of Comanche Peak would subject Petitioners to significant health, safety, and environmental risks.
It identified ACORN as an organization with members in the Dallas / Fort Worth area and
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It was stat.ed this motion supersedes CFUR's motion served at the prehearing on May 22, 1979.
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, attached an affidavit from a Fort Worth member, Terry Thompson.
WTLS does not have " members" but has authorization to represent certain clients within its jurisdiction as a public interest legal corporation.
(The amended petition of March 29, 1979, stated if ACORN is granted Intervenor status, WTLS will be attorney of record for ACCPN.)
The Supplemental Petition of May 7, 1979, attached an affidavit from Ruth Martin, a Board member of Fort Worth and Texas Acorn.
The affiant states that she supports the contentions and has authorized ACORN to represent her interests.
The Board has determined that ACORN has established
" interest."
The Board has determined the ACORN Contentions 16, 17, 18, and 19 meet the requirements of 10 CFR 52.714(b) and that ACORN is admitted as an Intervenor in this proceeding.
WTLS stated in the amended petition served March 29, 1979, that if ACORN was not granted Intervenor status it would proceed on its own behalf.
Not knowing the outcome for Ar"
WTLS brought in the names of Mary and Clyde Bishop and Or and William Wood, two couples who became clients of WTLS when they were permitted to represent clients in the immediate vicinity of 415 25g
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Comanche Peak.~4/
This occurred after the intervention period.
The Board has determined that the requirements of 10 CFR 52.714 have not been established for the late filing of the Bishops and the Woods (Tr. 121-124).
The Board has determined that " interest" has not been established for WTLS and Intervenor status is not granted for WTLS, the Bishops, or the Woods.
The Board acknowledges the importance of WTLS 's role as counsel for ACORN.
Language of the Quality Assurance / Quality Control Contention The Board recognizes that supporting language appears in the petitions of CASE, CFUR, and ACORN concerning the various quality assurance / quality control contentions.
The Board has determined the following language encompasses all those contentions:
The Applicants have failed to establish and execute a quality assurance / quality c?ntrol program which adheres to the criteria in 10 CFR 50, Appendix B.
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The attached affidavits from the Bishops and W' ods state c
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that they live within five miles of Comanche Peak.
The affiants state that ACORN and WTLS are authorized to represent them but do not state they are members of ACORN.
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. STATE OF TEXAS On February 13, 1979, the State of Texas petitioned for participation as an interested state under 10 CFR S2.715(c) if for other reasons there is a hearing.
The State of Texas is admitted to this pt.ceeding under 715(c).
ATOMIC SAFETY AND LICENSING BOARD FOR THE REVIEW OF PETITIONS O
b
' Richard F. Cole, Member
'd xhW c
n Lester Kornblith, Member Y
Eli/abeth S. Bowers, Chairman Dated at Bethesda, Maryland This 27th day of June 1979.
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