ML19256E243
| ML19256E243 | |
| Person / Time | |
|---|---|
| Site: | Fort Calhoun  |
| Issue date: | 10/23/1979 |
| From: | Paradis M A, Voight H, Voigt H LEBOEUF, LAMB, LEIBY & MACRAE, OMAHA PUBLIC POWER DISTRICT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7911020014 | |
| Download: ML19256E243 (14) | |
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i '2,3 t%7:h UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g eg e 4 3
In the Matter of ) % ,
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OMAHA PUBLIC POWER DISTRICT ) Docket No. 50-285 (Fort Calhoun Station, Unit )
No. 1) )
APPLICANT'S CONSOLIDATED ANSWER TO REQUESTS FOR HEARING FILED BY NATURAL RESOURCES COMMITTEE AND ALAN H. KIRSHEN Introduction On July 17, 1979, Omaha Public Power District
(" Applicant") filed an Application for Amendment of Operating License to increase the thermal power level of Fort Calhoun S t a t ion , Unit No. 1, from 1420 MWt to 1500 MWt (" Stretch Application"). Notice of opportunity for requests for hearing on the Stretch Application was published by the Nuclear Regulatory Commission (" Commission") in the Federal Register on September 7, 1979. 44 Fed. Reg. 52,389 (1979).
The notice stated that "any person whose interest may be af fected by this procee ding" could file a request for a hearing in the form of a petition for leave to intervene.
The notice further provided that any such request must be filed by October 9, 1979.
As counsel for Applicant, we received on Octcber 11, 1979, copies of requests for hearing in this proceeding filed by the Natural Resources Committee of the Citizens 7
'l 7 911020g cg gg <
s Advisory Board of the Metropolitan Area Planning Agency
("the Committee") and Mr. Alan H. Kirshen.
In Applicant's view, neither the Committee's request nor the Kirshen request sets forth with particularity, as required by 10 C.F.R. 52.714(a)(2), the interest of petitioners in the proceeding. Similarly, neither request explains how that interest might be affected by the results of the proceeding. Pursuant to 10 C.F.R. S2.714(c), Applicant submits herewith its answer to each of the above-identified requests. In sum, Applicants submit that the requests for hearing be denied because neither request establishes that intervention should be granted either as a matter of right or as a matter of discretion.
Argument I.
THE COMMITTEE'S REQUEST FAILS TO SATISFY THE REQUIREMENTS FOR INTERVENTION EITHER AS OF RIGHT OR DISCRETION AND SHOULD THEREFORE BE DENIED.
A. Interventon as a Matter of Right.
As stated in the September 7, 1979 Federal Register Notice, the Committee's request for hearing is subject to review of the following factors:
- 1. The nature of the petitioner's right under the Atomic Energy Act of 1954, as amended, to be made a party to the proceeding;
-2_
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- 2. The nature and extent of the petitioner's property, financial, or other interest in the proceeding, and
- 3. The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
These prerequisites to intervention apply to both individuals and organizations requesting a hearing. In the case of an organization, the interests of the individual members must be identified, and, in addition, must be shown to be placed in jeopardy by the outcome of the proceeding.
Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 422-23 (1976).
Additionally, the individual member whose interests are in question must be identified. Omaha Public Power District (Fort Calhoun Station, Unit No. 1), CLI-72-24, 5 AEC 9 (1972); Barnwell, supra; Public Service Co. of Indiana, Inc.
(Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-322, 3 NRC 328 (1976); Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Units 1 and 2),
ALAB-136, 6 AEC 487 (1973). Lastly, a showing must be made by those individuals that the organization is, in fact, properly authorized to represent them. Barnwell, supra. As set forth below, the Committee's request fails to meet these requirements and should be rejected.
2b
i .
Specifically, the Committee has not identified any property or financial interests of its members. The Committee has neither " particularized" any of these interests alleged to be possessed by its members nor provided any
" concrete demonstration" of hcw these as yet unpleaded specific interests would be affected by the results of this proceeding. See Nuclear Engineering Co., Inc. ( S he f f iel.d ,
Illinois, Low-Level Radioactive Waste Disposal Site),
ALAB-473, 7 NRC 737, 741, 743 (1978).1/
The Committee has also failed to identify its specific members whose interests it is now seeking to represent. The only member ident ified is Mr. Alan H.
Kirshen whose residential address and interest are not given.
An organization must identify at least one member by name and address who wishes to be rupresented by the organization and who has the necessary interest. Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-536, 9 NRC (1979); Detroit Edison Co. (Enrico Fermi Atomic 1/ Applicant denies that it ever represented that any matters raised by the Committee in its request for a hearing to the Nebraska Department of Environmental Control ("DEC")
would be better addressed in the context of this proceeding.
Committee Request 12. Rather it was the director of DEC in a letter to the chairman of the Committee wno related tnat the Committee's concerns were more appropriately addressed within the URC's review not the DEC. Lctter from Dan T.
Drain to Maryjean Lyon, dated August 15, 1979, copy attached as Exhibit A. Applicant has no knowledge of any specific concerns of the Committee and is, therefore, unable to determine the appropriate centext for their consideration.
32cf30 082 Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 77 (1979). The Committee has similarly failed to provide any indication whatsoever that its individual members do, indeed, desire that organization to represent them.
The Committee has failed to specify and to document its legal authority to participate in this proceeding.
As an advisory body to the Metropolitan Area Planning Agency ("MAPA"), a council of public officials, it is not apparent what authority, if any, the Committee has to act independently of MAPA in matirrs in which it is to have a merely advisory role to MAPA. Tne Committee avers that it may provide " review and comment independent of official MAPA action or position". Committee Pequest T1. This indicates that the Committee may be requesting a hearing without the knowledge and approval of the body that appointed it. The Committee should be required to produce written authorization from MAPA before its hearing request is considered further.
Normally, t.e interests of an organization and its members may be discerned from the contentions it seeks to litigate. Here, no specific contentions are proferred by the Committee. More important, it appears that Mr.
Kirshen, representing the Committee, has publicly stated that the Committee has no specific contentions. See Omaha
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World-Herald, Oct. 14, 1979, at 17B, copy attached as Exhibit B.
Rather than identifying its members and specifying their interests, the Committee has requested the hearing for any and all " citizens who could be adversely affected in the event of an accident at the facility, perhaps occasioned by the modifications sought in this proceeding, or by inc reased thermal discharges which will result from the modifications herein sought." Committee Request
- 13. The Committee does not state whether such citizens are members of the Committee. If they are not, whatever interests such citizens may have in this proceeding cannot be relied upon by the Committee to compensate for its lack of interest in this proceeding. See, Hunt v.
Washington State Apple Advertising Commission, 432 U.S.
333, 343 (1977); Sierra Club v. Morton, 405 U.S. 727 (1972).
The Committee may not represent persons other than its members without express authority to do so. The Committee has not produced such authority. Long Island Lighting Co.
(Chareham Nuclear Power Station. Unit 1), LBP-77-11, 5 NRC 481, 483 (1S'7). An organization's " interest in a problem" without a showing that a member would be adversely affected is not enough. Id.; Barnwell, supra, at 21. The Committee has only stated the " generalized grievance ut all citizens which is insufficient to support the Committee's request.
Edlow International Co. (Agent for the Government of India on Application to Export Special Nuclear Material), CLI-76-6, 3 NRC 563, 576 (1976).
B. Intervention as a Matter of Discretion.
Even though a prospective intervenor may not be entitled to intervene in a proceeding as a matter of right, a Licensing Board may grant intervention as a matter of discretion. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976). However, the inquiry as to whether discretionary intervention should be granted in this case must focus on one " pivotal f actor"- "the ability of the petitioner to make a valuable contribution to the development of a sound record." Public Service Company of Oklahoma (Black Fox, Units 1 and 2), LBP-77-17, 5 NRC 657 (1977), aff'd as to this point, ALAB-397, 5 NRC 1143, 1151 n .14 (1977). The Committee has faileu to demonstrate its ability or even its intention to make a valuable contribution to the record in this proceeding. This ability cannot be presumed. The Committee has merely requested a hearing to allow unnamed citizens to participate. It is not clear what role, if any, the Committee would be able or villing to assume at a hearing.
Moreover, the Committee's request cannot be granted just 1256 085 because it does not appear that the Committee will not be able to make such a contribution. The " burden will be on (the Committee] to satisfy the Licensing Board on these points." Sheffield, supra at 745.
Discretionary intervention in this proceeding should be allowed only upon an unusually strong showing that the Committee would make a substantial contribution since otherwise there will be no hearing. Tennessee Vallev Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1422 (1977). In addition to specifying those issues en which it plans to participate, the Committee "must specify the extent to which it will involve itself on those issues and the contribution which that involvement can reasonably be anticipated to make." Sheffield, supra, at 745. The Committee has not even stated whether it would become involved in the hearing but appears to request it for the benefit of any citizen who may wish to participate.
In Exhibit B, thc chairman of the Committee, Mr. Kirshen, has stated that the Committee would not testify for or against the amendment. The Committee has failed to put forward sufficient informaticn warranting the award of intervention pursuant to an exercise of the Commission's discretion.
'256 086 II.
ALAN H. KIRSHEN'S REQUEST FAILS TO SATISFY THE REQUIREMENTS FOR INTERVENTION EITHER AS OF RIGHT OR DISCRETION AND SHOULD THEREFORE BE DENIED.
Alan H. Kirshen's individual request merely references the Committee's request and thus does not provide any information as to Mr. Kirshen's individual interest in the proceeding nor any specific issues within the scope of the proceeding which would affect any pertinent interest of Mr. Kirshen as required by S2.714(a). The only interests identified in the Committee's request which the Kirshen requect incorporates by reference are the generalized interests of each citizen which are insufficient for inter-vention as of right. Edlow International, supra.
Mr. Kirshen's failure to identify any interest in the proceeding or valid contentions af fecting any such interest and to describe his possible contribution to the proceeding will not support a grant of discretionary inter-ve n t ion . "Certainly, before a hearing is triggered at the instance of one who has not alleged any cognizable personal interest in the operation of the facility, there should be cause to believe that some discernible public interest will be served by the hearing." Watts Bar, supra. Mr. Kirshen has not provided any information to suggest he is qualified by either specialized education or pertinent experience to 1256 087
make a substantial contribution to the proceeding. An award of discretionary intervention to Mr. Kirshen is therefore unjustified and inappropriate.
Conclusion For the foregoing reasons, Applicant requests that the hearing requests of the Committee and Alan H. Kirshen be denied.
Respectfully submitted, LeBOEUF, LAMB, LEIBY & MacRAE BY Cuthu fprtner (f 1333 New Hampshire Avenue, N.W.
Washington, D.C. 20036 (202) 457-7500 Attorneys for Applicant Of Counsel:
MARGARET R. A. PARADIS October 23, 1979
'256 088
.#m Exhibit A
. /I r, Nebraska Department of Environmental Control
. n ikNO Charles Thone, Covernor Dan T. Drain, Director 1M' August 15, 1979 i WPC-Perm /En fc Ms. Maryjean Lyon, Chairman .
CAS Natural Resources Committee Omaha-Council Bluffs Metropolitan Area Planning Agency Suite 200 7000 West Center Road Omaha, Nebraska 68106 RE: Omaha Public Power District - Fort Calhoun.
NPDES Permit No. NE 0000418 Public Notice Dated July 5, 1979 -
Dear Ms. Lyon:
We are in receipt of your request for a public hearing on the -
modification to the NPDES permit for Fort Calhoun Station of the Omaha Public Power District.
The purpose of the NPDES modification as proposed is to allow the plant. to operate under the concept of stretch power. The decision on
(, Omahi Public Power District's application for increased power production will be made by the Nuclear Regulatory Commission.
We have reviewed the projected impact of the increased temperature on the Missouri River and feel the effect will be minimal and will comply with Nebraska's Water Quality Standards. Normally, the maximum temperature is approached only during those few days in the summer when peak power is ne.eded, which coincides with high flow rates in the Missouri River. Additionally, by allowing a slightly increased discharge temperature, the corresponding cooling water flow rate can remain constant, thus avoiding, the more serious env'ironmental effect of impingement and entr'inment of fish and fish larvae at the cooling water intake point.
After reviewing your comments it appears that the more appropriate vehicle to address your concerns is the public notice that will be issued by the Nuclear Regulatory Commission (NRC) on Omaha Public Power District's application for stretch power. It is our intent to defer any action on this issuance of the modification since approval by NRC of the operational change is a condition precedent to our modifying the NPDES -
permit with regard to temperature. ,.
We would like to thank you for your interest in Nebraska's water and the concerns expressed in your comments. .
Very truly yours, i 25ib -
. a Dan T. Drain bee: Nac Director '- - '
.a n,. EPA;- EnforcocnnhDivisiomni < , - .., t u 't (~ k i 1- r 8- v. A. - t r a em s on e .
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Exhibit B OMAHA WORLD HERALD - OCTOBER 14, 1979 AT 17B TRC: [ earing Sought On likeinN?ower The NuclearRegulatoryCom. enable the power to be 'i$
mission has been asked to hold a creased. OPPD sotild pay' the public hearing on the Omaha company about SC/4,000ayear.
Public Power District's ap. OPPD officials said the addi.
plication to increase the power tional power would replace output at the Fort Calhoun nu. power produce 1 at bigher cost clearplant, by OPPD's coal-fired plants, Re request was made by the would occasionally provide the natural resources committee of district with power to sell at a the Metropolitan Area Planning profit, and would reduce the Agency citizens' advisory numberol timas t'te plant needs board. ta be shut down for rtfueling, Alan H.Kirshen. chairman of thus also reducing the depen.
the committee, said his group dence on coal during shutdown believes a hearmg would be in periods.
the public interest. "We in its request, the MAPA wouldn't testify for or against group said the public interest the preposal " he said. instead, requires a hearino "in which he said, the committee proba. citizens who couldi:e adversely bly would raise some questions affected in the event of an acci.
itbelieves need to be raised. dent at the facility . . or by in.
Earlier this year, OPPD an. creased thermal discharges" nounced an agreement with canbe heard.
Enon Nuclear Fuel Co. that is Kirshen also said that al.
aimed at boosting the capability though he was "normally a pro-of the Fort Calhoun unit to 490.. ponent of nuclear power," he OCO kilowatts from 457,000 kl. thought that OPPD had done "a lowatts. Vet'/ poor job of permitting or Enon would manufacture fac ! stating public involvement - c fuel assemblies that would orpartic:pation"inits request.
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!256 090
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
OMAHA PUBLIC POWER DISTRICT ) Docket No. 50-285 (Fort Calhoun Staticn, Unit )
No. 1) )
CERTIFICATE OF SERVICE I hereby certify that I have served a document entitled, " Applicant's Consolidated Answer to Requests for Hearing Filed by Natural Resources Committee and Alan H.
Kirshen," by mailing a copy thereof first class, postage prepaid, or by personal delivery, as so indicated, to the following persons:
Citizens Advisory Board Mr. Ernest E. Hill Metropolitan Area Planning Agency Lawrence Livermore Laboratory Suite 200 University of California 7000 West Center Road P.O. Box 808, L-123 Omaha, Nebraska 68106 Livermore, California 94550 Alan H. Kirshen, Associate Dr. Quentin J. Stober Professor of Law Fisheries Research Institute c/o Creighton University University of Washington School of Law seattle, Washington 98195 2133 California Street Omaha, Nebraska 68178 Chairman, Atomic Safety and Licensing Board Panel Elizabeth S. Bowers, Esq. U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Panel Washington, D.C. 20555 Nuclear Regulatory Commission (personal delivery)
Washington, D.C. 20555 (personal delivery) i256 09i
Joseph R. Gray, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Bethesda, Maryland (personal delivery)
Mr. Emett Rogert Chairman Washington County Board of Supervisors 16th and Colfax Streets Blair, Nebraska 68008 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 f}s{ fdA. a^d.obs,/
Margaret R. A. Paradis LeBoeuf, Lamb, Leiby & MacRae Attorneys for Omaha Public Power District October 23, 1979 1256 092