ML19260C405
| ML19260C405 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 12/13/1979 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7912260292 | |
| Download: ML19260C405 (6) | |
Text
12/13/79 s
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
MAINE YANKEE ATOMIC POWER COMPANY )
Docket No. 50-309
)
(Spent Fuel)
(Maine Yanke Atomic Power Station) )
NRC STAFF RESPONSE TO THE PETITION FOR LEAVE TO INTERVENE FILED BY SENSIBLE MAINE POWER I.
BACKGROUNT on October 24, 1979, the U.S. Nuclear Regulatory Commission (Commission) pub-lished in the Federal Register (44 Fed. Reg. 61273) notice of the proposed issuance of an amendment to a facility operating license for the Maine Yankee Atomic Power Station.
The notice provided that any person whose interest may be affected could submit a petition for leave to intervene in accordance with 10 CFR S 2.714, no later than November 23, 1979.
Pursuant to this notice, Sensible Maine Power (" Petitioner") submitted a timely petition for leave to intervene.
The response of the Nuclear Regulatory Commission Staff (Staff) to the petition is set forth below.
II.
INTEREST REQUIREMENTS OF 10 CFR 6 2.714 As stated in the notice, 10 CFR 6 2.714 requires that a petition for leave to intervene "shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding" 44 Fed. Reg. 61273.
1618 250 791e200 2%
It is well settled that an organization may gain standing to intervene based on injury to itself or to its members.
TVA (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418 (1977).
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, 521 (1977).
On the other hand, an organization 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 Indiana (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 Services, et al. (Barnwell Fuel Receiving and Storage Station),
ALAB-328, 3 NRC 420, 422 (1976); Public Service Electric & Gas Company (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 488-89 (1973);
Duquesne Light Company, et al. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 244 at n.2 (1973). As discussed below, the requirements of 10 CFR 9 2.714 have been complied with by the Petitioner.
The Petitioner has not demonstrated standing based on an injury to the organi-zation itself. The Petitioner is a State of Maine nonprofit corporation. There-fore, it is not an unincorporated association whose members, individually and collectively, constitute the organization. Rather, it is a legal corporation 1618 251
which is an entity separate and apart from its membership that exists solely by virtue of a charter issued by the State of Maine. No threatened or actual corporate injury resulting from the proposed action has been alleged.
However, the Petitioner can be found to have demonstrated standing based on acting in a representative capacity on behalf of its membership. The Peti-tioner specifically identified approximately 30 members who either live, work or recreate within the " geographical zone of interest".1!
Although there is no explicit authorization from each of these members that the Petitioner repre-sent their interests, one of these members (the President of Sensible Maine Power), Sethallen Hedgecock, has by his execution of " Designation and Authoriza-tion of Petitioners Counsel" (Attachment 1 to the petition) given his implicit authorization that the Petitioner represent his interest (the petition indicates that Mr. Hedgecock, his wife and two children " live and recreate within ten miles of the Maine Yankee facility"
).
For these reasons, the NRC Staff believes that the " interest" requirements of 10 CFR 8 2.714 have been satisfied.
1/
See " Petitioner's Attachment 3 In Support of Petition for Leave to Intervene",
at pp. 11-13.
An organization may satisfy the requirements of 10 CFR S 2.714 by showing that the residence of one of its members is "within the geographical zone that might be affected by an accidental release of fission products".
In the Matter of Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 n.6 (1973).
In fact, the Appeal Board has recently held that geographic proximity of a member's residence to a facility is deemed enough, standing alone, to establish the interest requirements of 10 CFR 8 2.714.
In the Matter of Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54 (1979).
While no specific distance from a nuclear power plant has evolved from Commission decisions to define the outer boundary of the "geograp' hic zone of interest", the Appeal Board has found that a licensing 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).
Further, the Appeal Board has indicated 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, Units 1 and 2), ALAB-413, 5 FRC 1418, 1422 n.4 (1977).
2/
_Id. at 12.
See Duke Power Company (Amendment to Materials License SNM-1773) 9 NRC 146, 151.
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III. THE PETITIONER HAS ADEQUATELY IDENTIFlED THE ASPECTS OF THE PROCEEDING FOR WHICH INTERVENTION IS SOUGHT In addition to the " interest" requirement of 10 CFR a 2.714 a petition must also set forth with particularity the specific aspect or aspects of the subject matter of the proceeding to which a petitioner wishes to intervene. The instant petition has set forth specific aspects of the subject matter of the proceeding to which intervention is sought on pages 13 through 18 (Attachment 3).
The Staff believes that the specification provided is adequate to satisfy the require-ments of 10 CFR D 2.714(a)(2).
This finding is limited to a determination as to whether Petitioner has ade-quately met the requirement of identifying the aspects of the proceeding to which intervention is sought. Of course, Section 2.714 also contains a reouirement that contentions be set forth with reasonable specificity and basis. As stated below, contentions are not required to be filed at this time.
The Staff's determination above should not be construed as a finding that Peti-tioner has met the contention requirement nor that the Staff agrees with the merits of the aspects identified by Petitioner.
Not later than fifteen (15) days prior to the special prehearing conference held pursuant to 10 CFR 8 2.714(a), or prior to the first prehearing conference where no special prehearing conference is held, a petitioner must supplement his petition to include a list of the contentions which a petitioner seeks to have litigated in the proceeding.
In light of the NRC Staff's belief that the Peti-tioner has satisfied the " interest" requirements of 10 CFR 6 2.714, the Staff intends to meet with their authorized representative to discuss their concerns 1618 253
and possibly reach some agreement regarding the language of any contentions before the special prehearing conference. This procedure is consistent with the Commission's views stated in the Statement of Consideration issued in con-nection with the recent amendment to 10 CFR 8 2.714.
43 Fed. Reg. 17798 (April 26, 1978).
IV.
CONCLUSION For the foregoing reasons, the NRC Staff believes that the Petitioner has eatisfied the requirements of 10 CFR E 2.714 pertinent to " interest" and specification of " aspects of the proceeding".
Respectfully submitted.
/
Henry J. McGurren Counsel for NRC Staff Dated at Bethesda, Maryland this 13th day of December, 1979 1618 254
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
MAINE YANKEE ATOMIC POWER COMPANY )
Docket No. 50-309
)
(Spent Fuel)
(Maine Yanke Atomic Power Station) )
CERTIFICATE OF SERVIC8 I hereby certify that copies of "NRC STAFF RESPONSE TO THE PETITION FOR LEAVE TO INTERVENE FILED BY SENSIBLE MAINE POWER" 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 Regula-tory Commission's internal mail system, this 13th day of December, 1979:
Robert M. Lazo, Chairman, Esq.*
John M.
T., Paterson Atomic Safety and Licensing Board Deputy Attorney General U.S. Nuclear Regulatory Commission Department of the Attorney General Washington, DC 20555 State House Augusta, ME 04333 Dr. Cadet H. Hand, Jr.
Director, Bodega Marine Laboratory David Santee Miller University #of California Counsel for Petitioner P. O. Box 247 213 Morgan Street, N.W.
Bodega Bay, CA 94923 Washington, DC 20001 Mr. Gustave A. Linenberger*
Atomic Safety and Licensing Board Atomic Safety and Licensing Board Panel
- U.S. Nuclear Regualtory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 John A. Ritsher Atomic Safety and Licensing Appeal Ropes & Gray Panel (5)*
225 Franklin Street U.S. Nuclear Regulatory Commission Boston, MA 02110 Washington, DC 20555 Stanley Tupper Docketing and Service Section (7)*
Tupper & Bradley Office of the Secretary 102 Townsend Avenue U.S. Nuclear Regulatory Commission Boothbay Harbor, ME 04538 Washington, DC 20555 i
?h
/
N" Henry J//McGdrr' eft
/
Counsel for NRC Staff 1618 255