ML19263D674
| ML19263D674 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 03/23/1979 |
| From: | Chandler L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7904130127 | |
| Download: ML19263D674 (9) | |
Text
03/23/79 N
)
Q "('s NRC Pt73 TIC DOPNE?TI' RCGI
.a
. ;V
%g 9y%g,O
'I C
,//
c UNITED STATES OF AfiERICA g.l NUCLEAR REGULATORY C0tailSSION T
, q,.
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD y
In the Matter of
)
TEXAS UTILITIES GENERATING Docket Nos. 50-445 C0f1PANY, ET AL.
)
50-446 (Comanche Peak Steam Electric Station, Units 1 and 2)
)
NRC STAFF ANSWER TO PETITION FOR LEAVE TO INTERVENE BY CFUR On February 5,1979, notice of opportunity for hearing with respect to the application for operating licenses in the captioned proceeding was published in the Federal Register (44 Fed. Reg. 6995).
The notice pro-vided that any person whose interest might be affected could submit a petition for leave to intervene by flarch 5,1979.
Purse.:nt to that notice, and the provisions of the Commission's Rules of Practice in 10 CFR 52.714, a timely petition for leave to intervene (petition) was filed by Citizens for Fair Utility Regulation (CFUR).
For the following reasons, the NRC Staff (Staff) believes that the CFUR petition satisfies the relevant NRC regulations, except to the extent noted below, and accordingly, the Staff recommends that CFUR's petition be granted.
79()413C / h
- I.
INTERE5T As stated in the notice, a petition for leave to intervene must satisfy the requirements of 10 CFR 52.714 of the Commission's Rules of Practice.
This regulation directs that a petitioner set forth his or her interest in the proceeding and how such interest might be affected by the result thereof, including the reasons why intervention should be pennitted.
In this regard, consideration is to be given to the natare of the petitioner's right to be made a party, the nature and extent of petitioner's property, financial or other interest in the pro-cecding and the possible effect on such interest of.any order entered in the proceeding.
Also to be stated in a petition are the specific aspects of the subject matter of the proceeding on which intervention is sought.
It is elemental that judicial concepts of standing are controlling in detemining whether a petitioner has satisfied the foregoing require-rants.
Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-614 (1976); Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2) ALAB-397, 5 NRC 1143, 1144-1145. Consequently, a petitioner must show " injury in fact" and that such interest is "' arguably within the zone of interest' protected by the statute." Portland General Electric Company, supra.
Particular attention is to be given to the particularization of the above elements in connection with operating license proceedings, such as the instant one, to assure that potential intervenors have the required
e t
9 J
O e
e
_4_
facility is deemed enough, standing alone, to establish the interest requirements of 10 CFR 52.714.
Virginia Electric and Power Company (florth Anna tiuclear Power Station, Units 1 and 2), ALAB-522, fiRC (January 26, 1979).
Although no specific distance from a nuclear power plant has evolved from Commission decisions to define the outer boundary of the " geographic zone of interest", distances up to about 50 miles have been found not to be so great as to preclude a finding of standing based on residence.
Tennessee Valley Authority (Watts Bar fluclear Plant, Units 1 and 2) ALAB-413, 5 flRC 1418,1422 n.4 (1977).
Respecting the requirements of 10 CFR 52.714, CFUR has, among other things, asserted that it is an organization of citizens residing, working or attending school in Tarrant County, Texas, approximately thirty-five miles northeast of the Comanche Peak facility.
As residents, such members own both personal and real property and have business interests which allegedly could be affected by routine operation or as a result of an accident, as would their health and safety.
Petition at 2.
Tne asser-tion in the CFUR petition, supported by the appended affidavit of member Mrs. Jacobson, that CFUR members reside within about thirty-five miles of the Comanche Peak facility thus satisfies, in the Staff's opinion, the requirement that interest be established.
2]
The Staff considers Mrs. Jacobson's representation that she has been authorized to appear on behalf of CFUR to be adequate.
See Duke Power Company (Amendment to Materials License SilM-1773--Trans-portation of Spent Fuel from Oconee fluclear Station for Storage at McGuire fluclear Station) ALAB-528, fiRC
, slip op at 10, February 26, 1979.
,. The situation is not as clear, however, with respect to a showing of an effect on such interest. As previously noted, the petition merely states that "the health, safety and value of property and livelihood of the general public in Tarrant County may be affected by either routine opera-tion of Comanche Peak Steam Electric Station or by an accident involving release of radioactive elements..."
(Petition at 2) fievertheless, it is reasonably inferred from CFUR's assertions that releases of radioactivity from routine operation and as a result of an accident would have an adverse impact, i.e. cause injury to the health and well being as well as to the property interests of members of CFUR, as averred in Mrs. Jacobson's af fidavi t.
Such ef fects are, in the Staff's view, within the zone of interests to be protected by the Atomic Energy Act, Portland General Electric Company, supra, thereby satisfying this portion of 10 CFR 52.714, so as to warrant granting the petition as a matter of right. / See also Ten Applications for Low-Enriched Uranium Exports to EURATOM Member flations, CLI-77-24, 6 flRC, 525, 530-532 (1977).
3/
We are unpersuaded by Applicants' arguments to the contrary, set out in Applicants' Answer in Opposition to Petition for Leave to Intervene, dated March 19, 1979.
Applicants fail to consider the import of the recent Atomic Safety and Licensing Appeal Board decisions in Virginia Electric and Power Company, supra, and Duke Power Company, supra.
As noted above, the Appeal Board, in the funner of these decisions, held that "close proximity has always been deemed to be enough, standing alone, to establish the requisite interest." ALAB-522, slip op. at 3.
In the latter, the Appeal Board detenained that "it was enough for standing purposes that the petition had been signed by a ranking official of the organization who himself had the requisite personal 1riterest to support an intervention petition." ALAB-528, slip op. at in In light of these decisions, it is dispositive, in the instant case, that the petition is signed by Mrs. Jacobson who, from her affidavit to be appears a ranking official of the organization and further is expressly authorized to present the organization in this proceeding, and has the requisite personal interest, based on proxinate residence, to support the petition.
(Continued)
. II.
ASPECTS OF THE PROCEEDING As noted at_ove, a petition, in addition to setting forth a petitioner's interest and the effects thereon, must identify the specific aspect or aspects as to which intervention is sought.
The CFUR petition is silent in this regard.
Of particular concern to the Staff as a result of this deficiency is the inability to ascertain the areas which CFUR may seek to litigate if its petition is granted.
This is especially significant in an operating license proceeding such as this in which a hearing is not mandatory and caution must be exercised not only to assure that the required interest be established, Cir.cinnati Gas & Electric Company, et al, supra, but that issues previously resolved are not relitigated.
Alabama Power Company (Joseph M. Farley fluclear Plant, Units 1 and 2),
ALAB-182,7AEC210,216(1974).
Consequently, the Staff's position that the petition be granted is sub-ject to the reservation that it be amended to identify the specific aspect or aspects of the proceeding as to which intervention is sought.
See10CFR52.714(a)(3).
(Continued)
We note that the frequent references in the CFUR petition to its involvement in various rate proceedings and to the interests of its members as consumers and rate payers is of no moment in the Staff's detemination.
It has been long settled that such factors are beyond the interests to be protected by the Atomic Energy Act and, absent a showing that any hann to interests derived from such status will or may be occasioned by the impact of the subject licensing action on the environment, are risa beyond zone of interests to be protected by the flational Environaental Policy Act.
Tennessee Valley Authority (Watts Bar fluclear Plant, Units 1 and 2) ALAB-413, 5 fiRC 1418, 1420-1421 (1977).
Public Service Company of Oklahoma, et al.,
supra, at 1147.
Since the Staff believes that intervention as a matter of right has been justified, no discussion of intervention as a matter of this Board's discretion will be presented herein.
. In view of our position, the Staff intends, consistent with the Commis-sion's views as stated in the Statement of Consideration accompanying the recentamendmentof10CFR52.714,43 Fed. Reg. 17798, to meet with petitioner in an effort to arrive at agreement on contentions to be submitted in the future.
Since such contentions reflect, in fact, a refinement of the specific aspects which are required to be set forth in the initial petition,10 CFR 22.714(a)(2), and must be submitted not later than fifteen (15) days prior to the first prehearing conference which is the same time frame provided for amendment of petitions without leave of the Board,10 CFR 52.714(a)(3), the Staff recommends that petitioner consolidate the identification of the specific aspects of the proceeding on which intervention is sought with its delineation of contentions and that such consolidation be pennitted by the Licensing Boa rd.
III. OTHER MATTERS CFUR has requested that all prehearing conferences and the hearing in this proceeding be held in the vicinity of the NRC's Region IV offices in Arlington, Texas.
A similar request was made by petitioner CASE in its petition for leave to intervene.
The Staff has no objection to these requests.
Indeed, we note that prehearing conferences and hearings in NRC proceedings such as this have traditionally been conducted in the vicinity of the facility consistent with the Commission's Statement of General Policy and Procedure relating to 10 CFR Part 2.
Appendix A to 10 CFR Part 2,I.(a).
,. It appears from their respective petitions that petitioners CFUR and CASE have asserted substantially the same interest and effect thereon so as to establish standing in this proceeding.
If, upon their submittal of contentions pursuant to 10 CFR 52.714(b), it appears that CFUR and CASE are seeking to raise substantially the same issues, the Staff intends to reconnend that participation of CFUR and CASE be consolidated.
10 CFR552.714(e)and2.715(a).
IV.
CONCLUSION For the foregoing reasons and subject to the reservations reflected above, the Staff recommends that the CFUR petition be granted.
Respectfully submitted,
( k.!f(L'b[{
L Olb (t
Lawrence J. Chandler Counsel for NRC Staff Dated at Bethesda, Maryland this 23rd of itarch 1979
s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
TEXAS UTILITIES GENERATING COMPANY, ET AL. )
Docket Nos. 50-445
)
50-446 (Comanche Peak Steam Electric Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copics of "NRC STAFF ANSWER TO PETITION FOR LEAVE TO INTERVENE BY CFUR" in the above-captioned proceeding have been served on the f ollowing by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 23rd day of March, 1979:
Elizabeth S. Bowers, Esq., Chairman
- Richard W. Lowerre, Esq.
Atomic Safety and Licensing Board Assistant Attorney Cencral
~
U.S. Nuclear Regulatory Commission Environmental Protection Division Washington, DC 20555 P. O. Box 12548, Capitol Station Austin, TX 78111 Lester Kornblith, Esq. Member
- Atomic Safety and Licensing Board Mrs. Notcy Holdam Jacobson U.S. Nuclear Regulatory Commission CFUR Washington, D. C.
20555 1400 Hemphill Fort Worth, TX 76104 Richard Cole, Esq., Member
- Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel
- Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Nicholas S. Reynolds Debevois & Liberman Atomic Safety and Licensing Appeal 1200 17th Street, N.W.
Panel (5)*
Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Mrs. Juanita Ellis President, CASE Docketing and Service Section (4)*
1426 South Polk Street Office of the Secretary Dallas, TX 75224 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Geoffrey M. Gay West Texas Legal Services 406 W. T. Waggoner Building 810 Houston Street Fort Worth, TX 76102
/t /i [',,-
(I < ( ([
(,
/
Lawrence J. Chandle.
Counsel for NRC Staff