ML19254E408

Answer in Opposition to Georgians Against Nuclear Energy 790914 Petition to Intervene.Petition Failed to Meet Std Requirements.Urges Prompt Scheduling of Prehearing Conference.Two Certificates of Svc Encl

ML19254E408
Person / Time
Site:	Hatch
Issue date:	09/28/1979
From:	Silberg J, Trowbridge G GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
References
NUDOCS 7911010055
Download: ML19254E408 (10)

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                   ,                  UNITED STATES OF AMERICA

,~. Q,p NUCLEAR REGULATORY COMMISSION

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In the Matter of )

                                                        )    Docket Nos. 50-321 GEORGIA POWER COMPANY                  )                50-366 (Edwin I. Hatch Nuclear Plant,        )    (Proposed Amendment for Unit Nos. 1 and 2)                   )     Spent Fuel Pool Expansion)

LICENSEE'S ANSWER TO PETITION FOR LEAVE TO INTERVENE OF GEORGIANS AGAINST NUCLEAR ENERGY On August 15, 1979, the Nuclear Regulatory Commission publ.ished in the Federal Register a notice that it was considering issuance of a proposed snendment to the operating licenses for the Edwin I. Hatch Nuclear Plant, Unit Nos. 1 and 2 in connection with an increase of the spent fuel storage capacity of these units. 44 Fed. Reg. 47820. The notice provided'that written petitions for leave to intervene by persons whose interest might be affected by the proceeding and who wished to participate were to be filed by September 14, 1979. A petition for leave to intervene dated September 14, 1979 has ceen filed in this proceeding by Georgians Against Nuclear Energy (GANE). Georgia Power Ccmpany, Jglethorpe Power Corporation (formerly Oglethorpe Electric Membership Corporation), Municipal Electric Authority of Georgia and City of Dalton (Licensee) respectfully submit that GANE's petiticn fails to meet the requirements of the Commission's Rules of Practice. Licensee further requests tha; the Commission or the Chairman of the Atcmic Safety and Licensing i282 7 911010 C N

2-Panel promptly designate an Atomic Safet; and Licensing Board so that the first prehearing conference may be promptly scheduled and the petition ruled upon. The Commission's Rules of Practice, 10 CFR 52.714, set forth two basic requirements for petitions for leave to intervene. First, the petitioner must adequately set forth his interest in the proceeding. Second, the petitioner must specify appropriate contentions which he desires to litigate. Since 10 CFR 52. 714 (b) does not require a petitioner to list his contentions until 15 days prior to the first prehearing conference, Licensee will not at this time comment on the "contentionr,' set forth in GANE's petition. Licensee will submit commencs on GANE's contentions prior to the pre-hearing conference. As for GANE's interedt, Licensee believes that the petition has not met the requirements established by the Commission. As was described in the August 15, 1979, Federal Register notice, the Commission's rules (10 CFR S2. 714 (a) ) require that a petition for leave to intervene set forth with particularity the petitioner's interest in the pro-ceeding and how t'.it interest would be affected by the results of the proceeding. These rules also specify that the petition describe the reasons why petitioner should be pemmitted to intervene with particular reference to

1. the nature of his right under the Atomic Energy Act to be made a party; i282 ._^

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2. the nature and extent of the petitioner's property, financial or other interest in the proceeding; and

3. The effect of any order which may be issued in the proceeding on petitioner's interest.

GANE's petition does not meet these requirements. Judicial standards are used to determine whether a petitioner has made a sufficient .gation of personal interest to warrant the intervention as a matter of right.

      ?ortland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-614 (1976). Fol-lowing these standards, a petitioner must (1) allege that some injury has occurred or will probably occur as a result of the proposed action, and (2) allege an interest arguably within the zone of interests protected by the statute. Id.

No cognizable interest is presumed. Rather, there must be a concrete demonstration that harm to the petitioner will or could flow from an unfavorable outcome. Nuclear Elgineering Co., inc. (Sheffield, Illinois, Low-Level Radioacti'e Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978). GANE's petition states that itG interest is based on the concern that increased spent fuel storage at the Hatch facility ' 1282 increases the risk to its members and the general public to exposure to radio-active waste products which can seriously affect the health and safety of the citizens of Georgia and other states and serioc31y affect the quality of the envi-ronment.

4-Petition, p. 2.* GANE's interest cannot, of course, be based upon the " risk to . . . the general public" or the

       " health and safety of the citizens of Georgia and other states."   As 52.714 (a) makes clear, GANE must show how its interest is or may be affected.

GANE's showing of interest can or.ly be based upon the

       .nterest of its members.

7 Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC (April 4, 1979) (slip op. at 24). The member identified by GANE in its petition lives in Decatur, Georgia. Affidavit of John de Castro, attached to GANE petition. According to the Rand McNally Road Atlas, Decatur is approxi-mately 168 miles from Baxley, Georgia, the site of the Hatch facility. This" distance is not in " reasonable proximity" to the site, the test established by the Appeal Board. Ducuesne Light Co. (Beaver Valley Power Station, Unit No. 1) , ALAB-109, 6 T.2C 243, 244 n.2 (1973). See also Dairyland Power Cooperative (LaCross Boiling Water Reactor), ALAB-497, 8 NRC 312 (1978) (Appeal Board affirms ASLB finding that petitioners, who reside more than 75 miles from the facility, have not shown sufficient interest); Tennessee Valley Authority (Browns Ferry Nuc'_ ear Plant, Units 1 and 2), LBP-76-10, 3 NRC 209, 215 (1976) (residence 65 miles frcm site not auto-matically a sufficiently localized interest).  ; g

• The Petition also states a " concern about the additional financial burdens tt ; proposal will impose on consumers of electricity in Georgia." GANE's interest as a utility rate-payer is not cognizable in NRC proceedings. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2) ,

supra, at e14.

Nor does the petitioner show how Mr. de Castro's interest might be affected aside from the vague, unspecific claim that there would be " exposure to radioactive waste products." Petition, p. 2. This hardly complies with the particularity test established by 10 CFR S2.714. As the Appeal Board stated in Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 422 (1976), there must be "a particularization of how the inter-ests of one or more members of the (petitioner] might be ad-versely affected by the grant of the . . . license." For all of these reasons, Licensee submits '. - GANE has not shown standing to intervene as of right. Nor has GANE shown that it should be granted interven-tion as a matter of discretion. In Pebble Springs, CLI 27, supra, the Commission directed that licensing boards, using guidelines specified in that decision, should exercise their discretion on granting intervention to petitioner:3 not entitled to intervene as a matter of right. Of the six factors identified in Pebble Springs, the foremost is whether GANE's participation would likely produce a valuable contri-bution to the decision-making process. Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2) , ALAB-413, 5 NRC .418, 1422 (1977). See also Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2) , ALAB-397, 5 NRC 1143, 1151 and n.14 (1977); Virginia Elec-tric and Power Co. (North Anna Power Station, Units 1 and 1282 ._;

2) , ALAB-363, 4 NRC 631, 633 (1976). GANE has indicated nothing to suggest that such a contribution would be likely -

in this proceeding. Nor has GANE made any attempt to show that discretionary intervention is warranted on the basis of any other factor. Of particular note is the delay factor ("the extent to which the petitioner's participation will inappropriately broaden or delay the proceeding") . In this license amendment proceeding, there would be no hearing absent GANE's petition. For the reasons set forth above, Licensee respectfully submits that GANE's petition does not meet the standards established by 10 CFR S2.714. We would urge that an Atomic Safety and Licensing Board be promptly appointed and the first prehearing conference scheduled. This will enable an early ruling on GANE's petition and assure that the spent fuel pool modification may proceed on a timely basis. Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By A / pts.4 G' *gejF. Tfowbridge J " E./ Silberg 1800 M Street, N. W. Washington, D. C. 20036 (202) 331-4100 Counsel for Licensee Dated: 1282 'l'

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

                                              )      Docket Nos. 50-321 GEORGIA POWER COMPANY                 )                        50-366 (Edwin I. Hatch Nuclear Plant,        )      (Proposed Amendment for Units 1 and 2)                       )        Spent Fuel Pool Exapansion)

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Licensee's Answer to Petition for Leave to Intervene of Georgians Against Nuclear Energy" were served by deposit in the U. S. Mail, first class, postage prepaid, this 28th day of September, 1979, to all those on the attached Service List.

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Jay E. Silberg Dated: September 28, 1979 e g/.! 9F Qgg 9 ve*' q A 3 @%Ak e

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

                                          )   Docket Nos. 50-321 GEORGIA POWER COMPANY              )               50-366 (Edwin I. Hatch Nuclear Plant,     )   (Proposed Amendment for Units 1 and 2)                    )    Spent Fuel Pool Expansion)

SERVICE LIST Docketing and Service Section U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Barry H. Smith, Ecquire Office of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Georgians Against Nuclear Energy c/o Gary Flack, Esquire 1515 Healey Building 57 Forsyth Street, N. W. Atlanta, Georgia 30303 1282 ._l-

i.. . u; tau STATES. OF AMERICA NUCI. EAR REGULATORY COMMISSION In th Matter of )

                                                   )

GI0htGIA POTTER COMPANT, ET AL. ) Docket No. (s) 50-321SP

                                                   )                                       50-366SP (Edwin I. Hatch Nuclear Plant,              )

Units 1 and 2) )

                                                   )
                                                   )
                                                   )

CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing docu=ent(s) upon each person designated on the official service list compiled by the Of fice of the Secratary of the Cocnission in this proceeding 1.n accordance with the requirenents of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the ~ Nuclear Regulatory Co=nission's Pules and Regulations. Dated at ;'ashington, D.C. this 3 day of dY 197 9 . 1413) ,/ MbwMt-Of fice'of the Secretary of the /'Co-i ssion . 1282  :'

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

                                                 )

GEORGIA POWER COMPANY, ET AL. ) Dceket No.(s) 50-321SP

                                                 )                          50-365SP (Edwin I. Hatch Nuclear Plant,            )

Units 1 and 2) )

                                                 )
                                                 )
                                                 )

SERVICE LIST Herbert Grossnan, Esq. , Chair =an Georgia Power Company Atomic Safety and Licensing Bodrd ATTN: Mr. Charles F. Whitmer U.S. :?uclear Regulatory Commission Vice President, Engineering Washington, D.C. 20555 P.O. Box 4545 Atlanta, Georgia 30302 Mr. Glenn 0. Bright Atonic Safety and Licensing Board Gary Flack, Esq. U.S. ::uclear Regulatory Consission 1515 Healey Building Washington, D.C. 20555 57 Forsyth Street, N.W. Atlanta, Georgia 30303 Dr. Pdchard F. Cole Ato ic Safety and Licensing Board U.S. Nuclear Regulatory Co==ission Washington, D.C. 20535 Couns:1 for NRC Staff Offict of the Executive Legal Director U.S. 5telear Regulatory Coc=1ssion }2h2 [' Washing:en, D.C. 20535 George F. Trowbridge, Esq. Shaw, Pittr.su, Potts & Trowbridge 1800 X Street, N.W. Washington, D.C. 20036

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