ML19254E052
| ML19254E052 | |
| Person / Time | |
|---|---|
| Site: | Hatch  |
| Issue date: | 10/04/1979 |
| From: | Beverly Smith NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7910310018 | |
| Download: ML19254E052 (9) | |
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UNITED STATES OF AMERICA 10/4/79
- @ %'a NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket Nos. 50-321, 50-366
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Proposed Issuance of Amendnent (Hatch Nuclear Plant, Unit
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to Facility Operating License Nos. 1 & 2)
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Nos. DPR-57 and NPF-5 NRC STAFF'S RESPONSE TO PETITION FOR LEAVE TO INTERVENE OF GEORGIANS AGAINST NUCLEAR ENERGY (GANE)
The NRC Staff submits this response to the Petition for Leave to Intervene filed by Georgians Against Nuclear Energy (GANE! on its'own behalf and on behalf of its members. This response is limited to the issue of whether the Petitioner has satisfied the requirenents of 10 C.F.R. 5 7 71* nertaining to iaterest in the above-cantioned procreding. The Staff is n)>t, at this time, taking any position as to the adnise bility of the contentions set forth in the Petition. The Staff will set forth its positions in response to the Petitioner's Supplement to this cetic:on which sets forth the specific conten-tion and basis for the contention as required by 10 C.F.R. 6 2.714(b).
The Petition by GANE is in response to a " Notice of Proposed Issuance of Amendments to Facility Operating Licenses" for Hatch Nuclear Units Nos.1 and 2 to increase the capacity at each spent fuel storage pool and allow storage of elements from each reactor in either pool.
The Staff concludes, for the reasons set forth below, that the petition conforms with the require-ments of 10 C.F.R. Q 2.714(a) regarding interest and aspects.[43 309 0 7910310
. Basic Recuirements for Interest and Ascects The Comission's Rules of Practice,10 C.F.R. 9 2.714(a)(2), and the Notice of Hearing in this proceeding 44 F.R. 47820 (August 15,1979), provide that a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest riay be affected by the outcome of the proceeding, including the reasons why the petitioner should be pemitted to intervene, with particular reference to the nature of petitioner's interest under the Atomic Energy Act, his property, financial or other interest in the proceeding, and the possible effect of an order in the proceeding on that interest. For assessing whether the provisions establisning a petitioner's right to iptervene are met, the Comission has detemined that judicial standing ( requirements apply. 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. Mort.on, 405 U.S. 727 (1974); Barlow v. Collins, 397 U.S. 159 (1970), and Association of Data Processino Service Orcanization v. Camo, 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. }2kb b
In alleging a particularized injury, a petitioner need not show that he necessarily will be injured by the results of the proceeding, but that there is a reasonable pessibility that the action might have an adverse impact on his interests. Vircinia Electric Power Comoany (North Anna Power Station, Units 1 and 2), ALAB-342, 4 NRC 98,104-05 (1976); Vircinia Electric Power Company (North Anna Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979). Residence has been found sufficient, standing alone, to establish " injury in fact" for persons concerned about injury to their persons or property from operation of the reactor. Vircinia Electric Power Comoany, ALAB-522, suora at 56; Houston Lighting and Power Comoany (Allens Creek Nuclear Generating Station), ALAB-535 (April 4,1979), slip o_po_. at 29. This geographical proximity test for standing applies to petitioners making a ghowing of residence (or other frequent activities) "within the geographical zone that might be affected by an accidental release of fission products." Louisiana _ Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB '.25, 6 AEC 371, 372 n. 6 (1973); Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 (1974). No outer limits of this geographic zone have been established, although it has been held that 50 miles "is not so great as necessarily to have precluded a finding of stand-ing based on residence." Tennessee Valley Authority (Watts Bar Nuclear Plant, Uni ts 1 and 2), ALAB-413, 5 NRC 1418,1421
- n. 4 (1977).
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Protection from potential injury to persons or property from release of fission products is squarely within the zone of interests sought to be protected by the Atomic Energy Act. Vircinia Electric Power Company, ALAB-342, sucra at 105. However, other alleged potential injuries in fact, albeit directly linked to the outccme of the proceeding, do not fall within the zone of interests whi:h the mtute is designed to protect. For exam-pie, alleged injury to a ratepayer's interest in avoiding increases in electricity prices does not involve an interest sought to be protected by tne sta tute. Pebble Sprinas, CLI-76-27, suora at 614; Tennessee Valley Au thori ty, ALAB-413, sucra a t 1420-21. Similarly, the interests of tax-payers are not protected by the statute. Id., at 1421. Further, a purely eccnomic interest comes within the ambit of the National Environmental Policy Act " zone of interests" only if it is environmentally related, that is,, linked to an environmental impact of the federal action.k Id. at 1421. ( See also Lonc Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAS-292, 2 NRC 631, 640 (1975). An organization may establish standing to intervene as a result of potential injury to itself or as representative of one or more of its members who have personal standing. 10 C.F.R. 5 2.4(o); Warth v. Seldin, 422 U.S. 490, 511 (1975). When the standing of an organization is asserted to be derived from that of its members, it must identify and establish that at least one such -1/ inis discussion of " zone of intarests" is limited to precaedings outside the antitrust sphere, which may be treated differently. Portland General Electric Company, CLI-75-27, sucra at 614 n. 5. }2d3 b
member has a cognizable interest that might be affected by the result of the proceeding. Houston Lightino and Power Co.. ALAB-435, cuora at 30. The member with such an interest must have authorized the organization to repre-sent that interest, although authorization may be presumed in the case of members of organizations whose purpose is such that it may be fairly inferred that, by joining the organization, the members implicitly authorized the representation of any of their personal interests which may be affected by the proceeding. Id. at 37-38. The petition does not indicate that GANE is organized for the specific pur-pose of opposing the proposed amendment to the operating licenses. It also does not furnish the name of a specific member of GANE who has a cognizable interest. However, Counsel for GANE has provided Staff Counsel with the identity of one member of the organization who lives within fifty miles \\f the plant and who has authorized the group to represent him.U Since the member appears to live within a geographical area where residency is sufficient to establish standing, GANE will have made the requisite showing of interest. Of course, this position would be altered if the promised affifavit is not forthcoming. GANE also alleges that its members have an interest, as rate payers, in the financial burden that the amendment will impose upon the consumers of elec-tricity in Georgia. This is not within the zone o' interests to be pro-tected by the Atomic Energy Act. Pebble Sprinos, suora. -2/ Tne individual is Mr. Alan Silverberg of Wade Cross, Ga. His residence is allegedly within 50 miles of the plant. } 2 !'i) b
-~ In addition to demonstrating their ttanding to intervene, petitioners to participate in NRC proceedings pursuant to 10 C.F.R. 5 2.714(a) are to iden-tify the specific aspect or aspects of the subject matter of the proceeding as to which they wish to intervene. Although this provision has not yet been discussed extensively in NRC case law, it is apparent that the provision permits some notice to other participants of the issues likely to be litigated and, therefore, of the sc pe of the contested subject matter in the proceeding. The requirement of some specificity in the identification of aspects of the issues can assure that submittals relating to aspects are not so broad or vague as to defeat any genu 1ne notice regarding issues of particular concern. Accordingly, we submit that the appropriate test for adequacy of the identifi-cation f aspects is whether they are sufficiently specified to put the Board and parties on notice regarding the basic areas in which a petitioner contemplates framing contentions. }., ( GANE has set forth some generci statements that it is concerned about the "possible release of radioaction waste contained in the Hatch spent fuel rod s. " While this is quite gereral, it probably is sufficient to identify an aspect which it will litigate. In addition to the general statement concerning radioactive releases, GANE ldentified three contentions. While the Staff is not taking a position on on these now, they do serve to put the parties on notice of GANE's area of concern, i.e., sufficiency of the infonnation provided by the Licensee and the amount of fuel and length of time that fuel can be stored. }2bb
.. 0:n:kc icr. As an organization, GANE can represent the interest of its members. When GANE files an affidavit identifying one member who lives within fifty miles of the plant and that member has authorized GANE to represent him, it will have met the interest requirements of 10 C.F.R. 9 2.714(a). The general statements relating to releases of radioactive mate.-ial and the concerns expressed in the contentions give sufficient identification of the aspects of this proceeding GANE wants to participate. Therefore, the petition is adequate to meet the requirement of interest and aspect requirements of 10 C. F.R. s 2. 714(a). As indicated above, the Staff is not at this time taking any positions on the contentions. Respectfully submitted, .E / *'. 3 ) w Barry H. Smith Counsel for NRC Staff Dated at Bethesda, Maryland this 4th day of October,1979 j2A3 b
UNITED STATES OF AMERICA 10/4/79 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) ) Docket Nos. 50-321 GEORGIA POWER COMPANY ) 50-366 ) Proposed Issuance of Amendment (Edwin I. Hatch Nuclear Plant, ) to Facility Operating License Unit Nos. I and 2) ) Nos. DPR-57 and NPF-5 NOTICE OF APPEAPANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter. In accordance with 10 CFR 52.713(a), the following information is provided: Name: Barry H. Smith Address: U. S. Nu: lear Regulatory Comission Office of Executive, Legal Director Washington, D. C. 20555 t Tple;: hone Number: (301) 492-7313 Admission: State of Ohio U. S. District Court, Southern District of Ohio Name of Party NRC Staff Respectfully sutmitted, lfr, g f h-N Barry H. Smith Counsel for NRC Staff Dated at Bethesda, Maryland tnis ath day of October, 1979, 1243 316
UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) ) Docket Nos. 50-321 GEORGI. oCWER COMPANY ) 50-366 ) Proposed Issuance of Amendment (Edwin i. Hatch Nuclear Plant, ) to Facility Operating License Uni'. Nos. I and 2) ) Nos. DPR-57 and NPF-5 CERTIFICATE OF SERVICE ereby certify that copies of "NRC STAFF'S RESPONSE TO PETITION FOR LEAVE TL.:NTERVENE OF GEORGIANS AGAINST NUCLEAR ENER'iY (GANE)" and " NOTICE OF AFPEARANCE" of Barry H. Smith 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 Com-mission's internal mail system, this 4th day of October,1979. Herbert Grossman, Esq., Chairman Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Soard Panel V. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Comission Washington, D. C. 20555 Washington, D. C. 20555 Atomic Safety and Lt., censing A;; peal Board Mr. Glenti C. Bright U. S. Nuclear Regulatory Commission Atomic Safety and Licensir.g Board Panel Washington, D. C. 20555 U. S. Nuclear RegaTatory Commission Washington, D. C. 20555 Docketing and Service dection U. S. Nuclear Regulatory Comission Dr. Richard F. Cole Washington, O. C. 20555 Atomic Safety and Licensiqg Board Panel U. S. Nuclear Regulatcry Ccmission Washington, D. C. 20555 George F. Trowbridge, Esq. I Shaw, Pittman, Potts & Trow:: ridge VM% / DAg Jay E. Silbetg, Esq. c 1800 M Street, N. W. Barry H. Smith Washington, D. C. 20036 Counsel for NRC Staff Gary Flack, Esq. Georgians Against Nuclear Energy 1515 Healey Building 57 Forsyth Street, N. W. Atlanta, Georgia 30303 }2k) .}}