ML19263D678
| ML19263D678 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 04/03/1979 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| LBP-79-10, NUDOCS 7904130133 | |
| Download: ML19263D678 (68) | |
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LOCAL PDR N N.A 'f$T UNITED STATES OF AMERICA 3
1 NUCLEAR REGULATORY C0h&lISSION e.pcl.r*
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p EFORE THE ATOMIC SAFETY AND LICENSING BOARD SEsvro Arn 4 '.W9
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HOUSTON LIGHTING AND
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Docket Nos. STN 50-498 OL POWER COMPANY, _ET _AL.
)
STN 50-499 OL
)
(South Texas Project,
)
Units 1 and 2)
)
PREHEARING CONFERENCE ORDER RULING UPON INTERVENTION PETITIONS This proceeding concerns the application by Houston Lighting and Power Co., et al., for operating licenses for the South Texas Project, Units 1 and 2, two pressurized water reactors located approximately 15 miles southwest of Bay City, Texas, on the west side of the Colorado River in Matagorda County.
A Notice of Opportunity for Hearing was published on August 2, 1978 (43 Fed. Reg. 33968).
It established September 1,1978 as the date by which requests for a hearing or petitions for leave to intervene were to
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be filed.
This Board has been designated to rule on any such requests or petitions.
Five petitivns for leave to intervene have been filed.
In addition, the State of Texas seeks participation as an " interested State."
The first intervention petition, 7904130133
t
- dated August 24, 1978, but not received by the Applicants until September 6 and by this Board until September 11, was filed by David Marke.
The second, undated but received by the Commission on August 31, 1978, was submitted by the Citizens Concerned About Nuclear Power, Inc. (CCANP).
The third, an undated petition received by the Commission on November 1, 1978, was filed by D. Michael McCaughan, a member of "The Environmental Task Force."
The fourth, sub-mitted on January 19, 1979, was filed by M. Marke on behalf r
of the Auctin Citizens for Economical Energy (ACEE).
Fi-nally, a petition dated February 23, 1979 was filed by Citizens for Equitable Utilities, Inc. (CEU).
Neither the Applicants nor the NRC Staff have voiced any objection to the participation of the State of Texas, should there be a hearing.
But the Applicants perceive fatal deficiencies in all of the other petitions.
The Staff would admit CEU (as well as Texas) but would deny the others Our Memorandum and Order Regarding Petitions for Inter-vention, dated October 23, 1978, discussed the requirements which must be satisfied in order for an intervention petition to be granted, and we outlined what we viewed as certain deficiencies in the petitions originally filed by CCANP and Mr. Marke, particularly with respect to those petitioners' demonstration of standing to intervene.
Because NRC rules provide
t 3-petitioners a right to cure defects in their petitions until 15 days before the special prehearing conference contemplated by 10 CFR 52.751a (see 10 CFR 52.714(a)(3) and 52.714(b)), we declined to take final action on the petitions but ordered a special prehearing conference to consider them. Our Order of November 17, 1978 provided similar treatment for Mr. McCaughan's petition.
In a scheduling order also issued on November 17 (see 43 Fed.
Reg. 55019, November 24, 1978), the petitioners were given until December 26, 1978 to file supplemental petitions,
~
and the conference was scheduled for January 11, 1979.
(The Applicants and NRC Staff were afforded an opportunity to file responses to the supplemental petitions, to reach us no later than January 8, 1979.)
CCANP and Mr. Marke filed supplemental petitions.
The Marke petition indicated, for the first time, that it was being filed not only on behalf of Mr. Marke in his personal capacity but also on behalf of ACEE, an organization.
Mr. McCaughan did not file a supplemental petition.
In response to the supplemental petitions, the Appli-cants and NRC Staff continued to oppose the admission as
. parties of CCANP and Mr. Marke (both individually and as a representative of ACEE).
They each took the position that none of the petitioners had demonstrated standing and that all of CCANP's 6 contentions and Mr. Marke's 21 con-tentions were inadequate.
CCANP (through its representative) and Mr. Marke appeared at the prehearing conference held in Houston, Texas, on January 11, 1979, as did the Applicants and the NRC Staff.
Mr. McCaughan failed to appear (see Tr. 4).
In addition, a limited appearance statement was made by the Executive Director of CEU, who advised that she had been unaware of the proceeding until the previous weekend but that the organization planned to file an intervention petition (Tr. 161).
(As stated previously, CEU has filed such a petition.)
At the prehearing conference, we asked extensive questions concerning the standing and contentions of all the petitioners who were present.
As a result, it appeared to us that there remained several deficiencies of a tech-nical nature in the petitions before us insofar as they attempted to set forth the interests of the various petitioners.
(These daficiencies will be described in more
5-detail in our discussion of the particular petitions.)
We therefore afforded CCANP and Mr. Marke another opportunity to cure these defects (and the Applicants and Staff au opportunity to respond).
CCANP filed supplementary material concerning its claim of standing in a representative capacity.
Mr. Marke also filed additional information, which included an explicit petition for intervention on behalf of ACEE.
In their
- response, the Appli ants continued to assert that no peti-tioner had either demonstrated standing or set forth an appro-priate contention.
The Staff took that same position with regard to Mr. Marke and ACEE.
But with respect to CCANP, the Staff changed its opinion and indicated that that group had cured the defects in its statement on standing and had adequately demonstrated its interest in the proceeding.
The Staff continued to oppose CCANP's Latervention, however, on the ground that no adequate contention had been set forth.
The Applicants also oppose the late-filed petition of CEU, on grounds not only of lateness but also of lack of standing and failure to state an adequata contention.
The Staff favors admission of CEU on the g counds that CEU has standing of right, t hat it has set fcrth at least one
. valid contention, and that(upon balancing the relevant factors) its lateness should not bar its participation.
For the reasons which follow, we are granting the petitions of CCANP and CEU, as well as the request of the State of Texas to participate as an " interested State."
We are denying the petitions of Mr. Marke and Mr. McCaughan.
The petition of ACEE is conditionally denied, but will be considered to be granted if, within 10 days of the service of this order, that organization files additional information as later described.
We turn now to a discussion of the petitions of CCANF (Part I), Mr. Marke and ACEE (Part II), Mr. McCaughan (Part III), and CEU (Part IV).
Certain other matters before us are dealt with in Part V.
~
. I.
A.
There appears to be no disagreement about the general standards which we must apply in deciding whether CCANP (or, indeed, any of the other petitioners) has demon-strated its standing to become a party to this proceeding.
We set them out ourselves in our Memorandum and Order of October 23, 1978.
To repeat Iat briefly, we pointed out that, for a petition to be granted, it must set forth with particularit:y "the interest of the petitioner in the pro-ceeding, how that interest may be affected by the results of the proceeding, * *
- and the specific aspect or aspects of the * *
- proceeding as to which petitioner wishes to intervene."
10 CFR '5 2. 714 (a) (2).
We also noted that, in its Pebble Sorings decision, the Commission ruled that judicial concepts of standing govern whether a petitioner has made an adequate showing of interest in a proceeding and that, to lo so, the petitioner must demonstrate (1) " injury in fact" and (2) that the interest is " arguably within the zone of interest [s]"
protected by the relevant statutes -- here the Atomic Energy Act and the National Environmental Policy Act (NEPA).
Portland General Electric Co. (Pebble Springs Nuclear Plant,
, Units 1 and 2), CLI-76-27, 4 NRC 610, 613 (1976).1/
Fur-thermore where a petitioner fails to establish standing as of right, it may nevertheless be permitted to participate as a matter of discretion, where it can "make some contri-bution to the proceeding."
Id.. at 612.
1.
It is in 'the application of those general prin-ciples to the facts at hand in this proceeding where there have been differences of opinion.
CCANP's initial petition portrayed the group as one headquartered in San Antonio, Texas, which is over 150 miles from the site.
No particular members were identified, but the members were described generally as " residents of San Antonio."
Both health-and-safety and economic interests of the group's members were said to be affected by the operation of the facility.
In our Memorandum and Order of October 23, 1978 we pointed out that a petitioner any base its stand-ing upon a showing that his or her residence, or that of its members, is "within the geographical zone that might be affected by an accidental release of fission products."
-1/
At least one commentator takes the position
- hat the
" zone of interests" test no longer constitutes a com-ponent of the judicial concept of standing.
Kenneth Culp Davis, Administrative Law Treatise, 1978 supp.,
522.19-1 at p. 194.
Nevertheless, Commission decisions requiring resort to the " zone" test have not been repu-diated and, hence, have been applied by us.
See pp.
12, 36, intra,
. Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 n. 6 (1973).
As we also pointed out, the longest distance heretofore deternined to be within that zone is approximately 50 miles.
Tennessee Vallev Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 n. 4 (1977); see also Northern
, States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188,192-93 (1973) (40 miles).
In addition, we cited several decisions where distances had been judged as too far to fall within the geographical zone affected by an accident.
Public Servica Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143, 1150 (1977) (125 miles); Duquesne Light Co.
(Beaver Valley Power Station, Unit No. 1), ALAB-109, 6 AEC 243, 244 n. 2 (1973) ("several hundred" miles).
On the basis of this authority, we observed that the headquarters of CCANP (and the apparent residences of its members) in San Antonio are "too remote to confer standing."
In its supplemental petition, CCANP identified itself as a non-profit corporation, formed in April,1978, with members in Bexar (San Antonio area) and Matagorda Counties.
Of its approximately 120 members, " [a ] t least four" were said to reside within 25 miles of the South Texas
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Although their names and addresses were provided, project.
there was no communication from any of those persons stating that he or 3he agrees with the group's contentions and wishes to be represented in this proceeding through the group.
Moreover, the group's petition failed to name the individual authorized to represent it in the proceeding or to specify the individual who had signed the petition was so that authorized.
The petition reiterated that the group's members would be affected by operation of the facility from both a health-and-safety and economic standpoint.
When a group seeks to obtain standing in a repre-sentative capacity for its members (as CCANP is attempting to do here), it must demonstrate that the particular members whom it purports to represent have in fact authorized such representation.
Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 422-23 (1976); Detroit Edison Co. (Enrico Fe rmi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 583 (1978); id.,
LBP-79-1, 9 NRC (January 2, 1979) (slip op., pp. 5, 8).
When represented by one of its members, the group must also demonstrate that the member is authorized to do so.
Fermi, LBP-78-37, suora, 8 NRC at 583; LBP-79-1, suora, 9 NRC at (slip op., p. 5); see also Omaha Public Power District
. (Fort Calhoun Station, Unit No. 1), CLI-72-24, 5 AEC 9 (1972); Watts Bar, ALAB-413, suora, 5 NRC at 1421.
At the prehearing conference, the Board was advised that the CCANP members who lived in Matagorda County had asked CCANP to represent their interests (Tr. 72), either by telephone or by letters (Tr. 74).
CCANP offered to provide both the written authorization of one or more cembers for CCANP to represent them and the authorization of the CCANP member appearing at the conference to represent the group (Tr.
75-77).
We permitted the group to submit such documentation (Tr. 88).
CCANP thereafter filed a statement by Mr.
George J. Bank stating that his home and property are within 7 miles of the site, that he is a member of CCANP and desires the organization to represent his interests in the proceeding, and that he adopts and supports the statements of interests and contentions in CCANP's " amended" petition.
It also filed a statement by its two "Co-coordinators" (who "have the author-ity to make public the group's policies and decisions") that the person who had signed CCANP's supp12 mental petition (and had appeared for it at the prehearing conference) was authorized to do so and to represent the group's interests in the proceeding.
2.
We need not dwell long on whether the economic interests of CCANP's San Antonio members may confer standing
. of right on the group.
As the Applicants and Staff both point out, those interests clearly cannot do so.
They stem from the members' status as ratepayers of one of the Appli-cants.
Such interests fall outside the zone of interests arguably protected either by the Atomic Energy Act or NEPA and hence do not qualify under the Commission's " zone" test.2/
Pebble Sorings, CLI-76-27, supra, 4 NRC at 613-14; Watts Bar, ALAB-413, 5 NRC at 1421.
On the other hand, the single CCANP member residing near the site who has authorized the organization to represent him clearly falls within the area which has heretofore been found to be potentially affected by an accident.
The Applicants nevertheless assert that CCANP does not thereby acquire standing, for essentially two reasons.
First, they claim that mere 7'sidence is not
- enough, that additionally there must be shown in some detail how the resident's interests will be affected by operation of the facility.
In their view, such a showing 2/
Assuming, of course, that the " zone" cest remains
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applicable.
See fn. 1, suora_. CCANP has adequately set forth " injury in fact" with respect to its San
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Antonio members who assertedly will pay higher electric rates as a result of the South Texas proj ect.
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has not here been made.
Second, they assert that, for an organization to acquire standing through its members, it must be shown that the interests of the particular members coincide with the primary purposes of the organization.
Again, they argue, that is not the case with respect to the one CCANP member who seeks to be represented in the proceeding.
Neither of these reasons is meritorious.
With respect to the first, we need not decide whether residence, per se, is enough to confer standing.
And we need not disagree with the Applicants' general claim that some " nexus" between the licensing action and the claimed injury must be shown.
For CCANP has asserted considerably more than mere residence of one or a few of its members.
Its supplemental petition states, for example, that CCANP is concerned that its members may be subject to unnecessary risk of life and/or property from accident or ordinary operation of the South Texas Nuclear Proj ect and that the danger of exposure to radiation will be greatly increased by the escape of radon gas from the reactor, leaks in the transport and/or storage of fuel and wastes, and human errors in the handling of radioactive material.
CCANP is also concerned that mistakes and delays in construction which have occured will adversely
- affect the opera-ting safety of STNP
. Moreover, all of its contentions raise health-and-safety issues.
Although some of those contentions do not meet the requirements of the Rules of Practice, the ones that do (see pp.19-25, infra) demonstrate satisfactorily tehy CCANP believes that at least some of its members may be endangered by operation of the reactor.
The Applicants support their " nexus" claim by a number of cases which suggest that some " nexus" must be demonstrated; but they place primary reliance, in both their January 5, 1979 and their February 1, 1979 briefs (op. 6-8 and p. 23, respectively) and at the prehearing con-ference (Tr. 11, 60-62), on the decision of the Licensing Board in Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), Docket Nos. 50-338-SP, 50-339-SP,
" Order and Recommendation" dated December 8, 1978 (unpublished).
That opinion denied intervention in a spent-fuel-pcol expan-sion proceeding on the basis that the persons seeking inter-vention, who lived or conducted recreational activities near the plant, had not adequately particularized how their interests might be affected.
The general statements in the petitions there under review were much akin to those in CCANP's amended petition.
. At the prehearing conference, we questioned the Applicants pointedly about the import of the North Anna decision, both because it stemmed from a proceeding of different dimensions from an operating license proceeding and also because it seemed somewnat at odds with certain
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earlier Appeal Board rulings (Tr. 61-62).
That our doubts were well-founded is reflected by the Appeal Board's sub-sequent reversal 'of the Licensing Board's order.
ALAB-522, 9 NRC (January 26, 1979).
The Appeal Board's rationale, which is here set forth in relevant part, appears dispositive of the " nexus" claim advanced in this proceeding by the Applicants:
This concern * *
- may be devoid of any foundation in fact.
But that is quite beside the point in evaluating the sufficiency of the asserted interest of the * *
- members living little more than a stone's throw from the facility.
Contrary to the Licensing Board's seem-ing belief, we have never required a petitioner in such geographical proximity to the facility in question to establish, as a precondition to intervention, that his concerns are well-founded in fact Rather, close proximity has always been deemed to be enough, stand-ing alone, to establish the requisite interest feitation omitted].
9 NRC at (slip op., p. 3).
5 We need only add that the other Commission decisions relied on by the Applicants for their " nexus" claim are also distinguishable.
Neither involved an operating license proceeding.
Nuclear Engineering Co. Inc.
(Sheffield, IL, Low-Level Radioactive Waste Disposal Site),
ALAB-473, 7 NRC 737 (1978) (renewal and amendment of license to operate low-level radioactive waste disposal site); Allied-Ceneral Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420 (1976)
(materials license to receive and possess spent fuel).
And the asserted " civil liberties" interests in Barnwell and economic interests in Sheffield were too difuse to determine their adequacy or sufficiency without further particularization -- coupled with the circumstance that the residential " presumption" is logically applicable only to the type of health and safety interests which could be affected by a reactor accident the dimensions of which are unknown at the threshold stage of a proceeding.
See North Anna, ALAB-522, suora, 9 NRC at (slip op., p. 4).
The Applicants' other basis for opposing CCANP's standing is, in effect, that the interest of the single member being represented is not significant enough, or clearly enough in line with the group's objectives, to
. confer standing upon the group.
W_ agree, of course, that the interests of members which a group seeks to represent (and which confer standing upon the group) must be "germana to the organization's purpose."
Hunt v. Washington State Apple Advertising Commission, 432 U. S.
333, 343, 97 S.Ct.
2434, 2441 (1977).
We also agree that intervention in a proceeding should be granted only to those with a "real stake" in the proceeding.
Cincinnati Gas & Electric Co.
(William H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8, 12 (1976).
But we disagree with the Applicants in their further conclusions that intervention on behalf of the one Matagorda County member is not " germane" to CCANP's purposes or that CCANP does not through this member acquire a "real stake" in the proceeding.
CCANP's primary purpose may be educational.
But it also exists for the purpose of " influencing policy regarding issues surrounding the use of nuclear power."
Its intervention here might well produce that effect.
In any event, we do not view this Board as the appropriate forum for determining close questions as to whether an organization is acting strictly in accordance with its authorizing charter.
Cf[. Cleveland El_ectric Illuminating J21. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 747-48 (1977).
, The "real stake" doctrine arises out of the Supreme Court's description of the " injury in fact" standing test as "a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome."
Sierra Club v. Morton, 405 U. S. 727, 740 (1972).
In our view, "real stake" as used by the Appeal Board thus must mean " genuine," " actual" or " direct stake,"
not." substantial stake."
This view is confirmed by the Supreme Court's post-Sierra Club holding that the stake in the proceeding which must be demonstrated to acquire standing need only be a slight stake.
United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669 (1973).
In specifically eschewing a " significance" test, die Court there stated, "* *
- an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation."
Id. at 689, fn. 14.
Finally, the Applicants would have us distinguish between national organizations with a few local members and less comprehensive organizations with a few members geographically isolated from the center of the group's operations.
That latter class, in the Applicants' view, must make a more substantial showin of interest -- i.e., more members residing near the s
facility -- than the former.
We find no basis in NRC regulations or decisions for drawing that distinction.
And to do so would be inconsistent with the SCRAP ruling, supra.
,. In sum, we hold that CCANP has established that it has a "real stake" in the proceeding through its represen-tation of Mr. Bunk's interests and that it has demonstrated standing of right to participate.
That being so, we need not discuss whether discretionary intervention would be warranted.3/
B.
To permit intervention, a Board must find at least one contention which satisfies the Commission's requirements as to apecificity and bases.
10 CFR 5 2.714(b); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188,194 (1973).
The Appli-cants and Staff believe that none of CCANP's 6 contentions qualify.
We find two of them to be admissible.
-3/
We deny the Applicants' March 14, 1979 Motion for Addi-tional Procedures, seeking disco ~ery to determine when Mr. Bunk joined CCANP.
We agree with the Staff that the requested discovery is not available under the Commission's rules.
Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 579-81 (1978).
More-over, assuming Mr. Bunk joined CCANP as late as December 22, member), and assuming (although not deciding)ying him as a 1978 (the date of the CCANP affidavit identif both that the CCANP petition must be considered as untimely and that there was no good cause for a delay to that date, we balance the relevant factors of 10 CFR 52.714(a) in favor of CCANP's admission.
In terms of these faceors, the petition would differ from that of CEU, which we are granting (pp. 62-63, infra), only in that (1) it was not as late and (2) the contentions differ.
CCANP is likely to assist us in resolving its two contentions which we have admitted (see
- p. 20, infra).
. 1.
Concention 2 puts into issue whether construc-tion of the plant has been carried out in accordance with applicable requirements.
Six specific deficiencies in con-struction or construction practices are specified (subpara-graphs (b)-(g)).
(Subparagraph (a) is too general to be con-sidered as anything other than introductory.)
A source for the information underlying the contention is specified.
The Applicants characterize the alleged deficien-cies as "nothing more than complaints related to the not abnor-mal problems associated with the construction of nuclear power plants, routinely reported to the NRC and corrected pursuant to NRG--approved procedures. "
That well may be true -- but it is a matter of evidence going to the merits of the claim and not a basis for dismissing the contention.
The reports refer-red to by the Applicants as resolving some -- although not all ---
of the questions have not been put into evidence in any pro-ceeding.
They are entitled to be accorded no presumptive validity.
The Applicants also claim that CCANP purports to have no special expertise with regard to this contention.
That is irrelevant.
CCANP may utilize experts or consultants, just as the Applicants do.
Indeed, it has indicated that it is con-sidering : hat course (Tr. 73, 109).
. On the other hand, the Staff finds that this contention as drafted fails to meet the specificity and bases requirements of 10 CFR 52.714(b), inasmuch as it does not tie the listed deficiencies with the particular section of 10 CFR Part 50, Appendix B, which each deficiency may have violated.
In addition, the introductory phrase relating to the prematurity of the operating license request is said to be the result of a misunderstanding of the Commission's early notice requirements.
We attribute those aspects of the contention to which the Staff objects as the product of drafting by laymen.
We find the contention to raise specific questions as to the adequacy of construction, and we believe that these questions should be resolved on the record.
The contention should.be rewritten, however, to delete the references to the prematurity of the operating license request and to substitute therefor the provisions of NRC regulations or other requirements which the specific alleged practices may have violated.
CCANP may wish to ask the Staff and/or the Applicants to assist it in redrafting the contention along these lines.
We stress that we are merely admitting the con-tention (as modified) at this stage.
This, and every other, contention is subject to being disposed of by a motion for summary disposition under 10 CFR 52. 749, prior to any evid-entiary hearing.
,. 2.
CCANP's other acceptable contention is number 3, asserting design defects in the reactor because of the overpressurization problem which has been found to exist in other pressurized water reactors.
An NRC report (NUREG-0138) and the report of a nuclear engineer are cited as bases for the contention.
The Applicants claim that this concention con-sis ts of nothing more than conclusory statements based on a cursory recitation of operating incidents collected over f ;ur years from numerous plants, and that there is no allegation that the present regulatory standards for assuring pressure vessel integrity provide an insufficient margin of safety in the face of overpressurization transients.
- Again, we attribute this failure, if it be one, to drafting by laymen.
NUREG-0138 itself demonstrates that, where the transients occurred, an insufficient margin of safety existed under current standards for assessing pressure vessel integrity.
That such a condition assertedly applies to this facility is inherent in the contention.
In its brief, the Staff opposed this contention on the ground that it failed to specify "special circumstances" necessary to raise an issue concerning pressure vessel integrity.
,. See Consolidated Edison Co. of New York (Indian Point, Unit 2), CLI-72-29, 5 AEC 20 (1972).
Our Order of October 23, 1978 sought further information as to the existence of special circumstances; apparently none exist.
But our Order was based on the original form of the contention, in which it was not clear that the subject of the contention was overpressurization.
That subject represents one of the generic safety issues iden-tified by the Commission in a report to the Congress (NUREG-0410, January 1, 1978).
It involves not pressure vessel integrity, as such, but the evaluation of measures which may be taken to reduce the likelihood of pressure transients such as have occurred in other pressurized water reactors, where the pressure in the vessel has exceeded the limits imposed by applicable technical specifications.
At the prehearing conference, the Staff conceded that if overpressurization was all that was being raised by the contention, it is not covered by the "special circumstances" rule (Tr. 134-35).
(The ipplicants also stated that the "special circumstances" rule does not govern the instant contention (Tr.132).)
The Staff never-theless believes the contention lacks specificity (Tr. 135).
We hold that, for this stage of the proceeding, the contention is sufficiently specific.
As another Licensing Board noted, the primary responsibility for resolving generic issues aprlicable to a reactor lies with the Staff.
. Pennsv1vania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC (March 6, 1979) (slip op., p. 41).
See also Fermi, LBP-79-1, supra, 9 NRC at (slip oo., p. 14).
The Staff has not yet issued its Safety Evaluation Report (SER) covering unresolved U' til it does so, CCANP need be held to no generic issues.
n greater specificity.
In that connection, even if there were no contention on overpressurization, the hearing Board would be required to look at the question to determine whether the Staff's resolution of the question is "at least plausible and if preven to be of substance, * *
- adequate to justify operation."
Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 NRC 245, 249'fn. 7 (1978).
As in the case of Contention 2, this contention should be rephrased in certain respects.
The references to pressure vessel " rupture" and the concomitant release of radioactivity refers to the consequences of an accident me e serious than the " design basis accident" (i.e., a " Class 9" accident).
Those consequences need not be explored in a proceeding such as this.
- See, e.g.,
Porter County Chaoter AEC, 533 F.2d 1011, 1017-18 (7th Cir.), cert. denied, v.
429 U. S. 945 (1976); Lone Island Lichtine Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831 (1973).
,. Those consequences are asserted to occur only if certain regulatory standards, and the margins of safety required to be adhered to with respect to pressure vessels, are not in fact satisfied.
But if a plant does not meet such requirements, it will not be licensed to operate.
For that reason, the contention should be rephrased in terms of failure to meet applicable rec,uirements and to adhere to satisfactory safety margins (see Tr. 129).
In admitting this contention (as modified), we wish to note that we are aware of a new report on the subject of overpressurization.
NUREG-0224, " Reactor Vessel Pressure Transient Protection," dated September, 1978.
No party or petitioner drew our attention to this report, which purports to resolve the overpressurization generic issue.
Whether it does so, and (if so) whether the Applicants will adhere to the recommendations set forth in the report, are appro-priate matters for consideration in this proceeding.
3.
We need treat CCANP's other contentions, which we reject, only briefly.
Contention 1 seeks a delay in the operating license hearing.
As the Staff points out, it probably reflects a misunderstanding of the Commission's hearing
. procedures.
Under those procedures, although the proceeding has been initiated, the hearing is a long time in the future.
In any event the contention is a challenge to the Commis-sion's "early notice" provisions and, under 10 CFR $2.758, cannot be entertained (absent a showing of "special circum-stances" not here made).
Contention 4 seeks evacuation plans for the area within a 20-mile radius of the site. The distance named is derived from one of the analytical parameters incorporated into WASH-1400, the reactor-safety study which has recently been disavowed in some respects by the Commission.
Under currently effective rules, however, an Aoplicant need not formulate an emergency plan for areas outside the low population zone (LPZ) (which here has an outer radius of 3 miles, as set forth in the construction permit SER, 52.1, p. 2-5).
New England Power Co. (NEP Units 1 and 2), et al., ALAB-390, 5 NRC 733, 747 (1977).
Even under recently proposed amend-ments (43 Fed. Reg. 37473, August 23, 1973), which we are directed to use as " interim guidance" (id. at 37475), there has been presented no "particular information" why an evacuation plan extending 20 miles from the facility might be warranted.
See Suscuehanna, LBP-79-6, suora. 9 NRC at (slip op., pp. 30-32) ; Fermi, LBP-79 -1, suora, 9 NRC at
27 -
(slip op., p. 12).
The contention thus cannot be entertained.
Contention 5 asserts that the facility will present an undue health risk because of uncertainty as to the amounts and types of radioactive materials to be released into the environment.
As the Staff points out, no such uncertainty exists.
The facility must meet the emission standards specified in 10 CFR Part 20 and Part 50, Appendix I.
There has been no allegation that it will not do so, or that the health effects of the prescribed releases would tip the F7PA cost-benefit balance against the plant.
If the contention be a challenge to the prescribed standards, it is barred by 10 CFR 52.758.
For these reasons, the conten-tion is inadmissible.
Contention 6 seeks to raise questions as to the final ultimate disposal of radioactive waste. Whether viewed as a safety or an environmental matter, such conten-tions may not be entertained in a proceeding such as this.
NRDC v. NRC, 582 F.2d 166 (2d Cir. 1978); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 45, 48-51 (1978).
. II.
A.l.
Mr. Marke's original petition indicated that the petitioner was a resident of Austin, Texas (which is more than 100 miles from the site) but included no further information relevant to his standing.
Our Memorandum and Order of October 23, 1978 pointed out that, under applicable Commission guidelines, such residen-e was "too remote" to confer standing.
In his suoplemental petition, filed on December 25, 1978, Mr. Marke attempted to demonstrate that, notwiths tanding such distance, he waald nevertheless suffer injury through routine operation of the facility, as well as in the event o f a "maj o r acc ident. "
He also alleged that his health will be endangcred by food consumed by him which is grown in the vicinity of the plant, and by water from the surrounding watershed consumed by him "during frequent visits for busi-ness and recreational purposes," as well as water introduced into the marine life cycle "affecting the seafood * *
- gathered recreationally" by him.
Further, he assertedly will suffer " mental anguish" as a result of the plant's operation.
He also asserted that a major north-south rail line and a major highway lie near his home and office,
29 -
respectively, and that the transportation of fuel assemblies and spent fuel which may occur thereon will endanger his health.
Additionally, he stated that he regularly engages in recreational pursuits near the plant.
Finally, he set forth certain economic ratepayer interests derived from his status as a customer of one of the Applicants.
In addition, for the first time, he noted that he was representing not only himself as an individual but also ACEE, a private, non-profit group.
The group was described as consisting of over 100 formally aligned members in Austin and other communities, as open to the public, and as being in existence prior to the Notice of Opportunity for Hearing in this proceeding.
Mr. Marke listed the membership of the steering committee of ACEE, af which he was one.
Two of che steering committee members had a listed address in Wadsworth, Texas, which was described as less than 8 miles from the site.
Mr. Marke stated that he had been designated to represent ACEE's interests.
Mr. Marke also set forth certain reasons why
'he should be admitted as a matter of discretion.
In describing the contribution he might make to the proceeding, he portrayed himself in the following terms:
,.- Petitioner is a graduate of the Univ-ersity of Nevada and the University of California systems, having studied exclusively and extensively in the field of Nuclear Chemistry.
Mt. Marke has been widely published in the sci-entific community on topics not only limited to radiochemistry, but in the field of radioisotope disposition and containment.
Mr. Marke is regularly called upon by the city of Austin and the State of Texas, as well as other municipal bodies including the city of San Antonio, and various public groups in and around the other metropolitan areas of Texas for his expertise in the field of nuclear waste management.
Mr. Marke has been an invited guest of the Texas House of Representatives Energy Resources Sub-Committee, testifying with regard to waste disposal operations contemplated in the state of Texas, has testified frequently before and at the request of the Electric Utilities Com-mission of Austin regarding not only nuclear matters, and not limited exclu-sively to waste disposal, but energy related matters on a broad spectrum.
M'rke's expert testimony and advice a
have further been solicited by the
~
Austin city council in the nuclear field, as well as the traditional and non-traditional energy generating technologies.
Further Mr. Marke has been called upon frequently by the Texas Ener?,y Advisory Council for his expertise in the energy field, most particularly with regard to nuclear endeavors and the solar sciences.
F.e has as well been engaged by that agency not only as a consultant but as a member of proposal evaluation panels in the con-tract awarding process of the Energy Development Fund administered by that agency.
. The petitioner is currently employed as chief of research and development and general partner of Solar Dynamics Limited, of Austin, a Texas Ibnited partnership, organized for the purpose of researching and developing solar / thermal electrical generating technologies.
As principal scientist at Solar Dynamics petitioner Marke is daily and continually abreast of developments not only in energy technology but in energy policy.
As such he has been invited to testify on several occasions before the Department of Energy in efforts to establish, formulate and define the national energy plan.
He has kept himself well abreast of scientific developments in as many aspects of the energy field as possible, and considers that on the basis of expertise alone the board should exercise its discretion, granting him standing in the above captioned proceedings.
December 26, 1979 petition, pp. 14-16.
At the prehearing conference, we questioned Mr.
Marke extensively on the nature of his asserted interests.
We ascertained that the recreational activities in the vicinity of the plant consisted of fishing along the coast of the Gulf of Mexico between Galveston and Port Aransas,
not on any schedule but at lease bi-monthly and occasionally, during the winter months, bi-weekly (Tr. 34).
On about half those occasions, he would come within a distance of 40-50 miles of the plant (ibid).
(Mr. Marke later stated that perhaps he fishes somewhat closer to the plant
(Tr. 69).)
He also indicated that he is more worried about routine plant releases affecting the fish and entering the food chain than about the effects of plant accidents (Tr. 56).
We also questioned Mr. Marke about whether ACEE itself wishes to become a party and, if so, why it had delayed in identifying itself and seeking such status (Tr.
25-32, 37-40).
Mr. Marke was unable to provide definite answers to our questions in this regard.
At the conference, Mr. Marke also reiterated his plea for discretionary intervention.
He stated:
I have a Bachelor of Science degree in Nuclear Chemistry from the University of Nevada.
I have a Master of Science degree from the University of California at Berkeley.
I was involved, until the mid-1960s, in operations at the University of California at Berkeley in the nuclear engineering laboratories there, as well as in the cyclotron laboratory.
If the Board desires, I will send a copy of my resume along with the next commu-nication that I send, so that they can see the publications that I have done.
Tr. 58.
The " Amended Supplemental Petition" which we invited Mr. Marke to file was submitted on January 19,
- 1979.
It updated certain information but reiterated many of the other statements in the earlier December 26, 1978 petition.
The statement which we quoted concerning dis-cretionary intervention was repeated verbatim.
The January 19 filing included a petition by ACEE explicitly requesting leave to intervene "as an individual entity."
The petition included an authorization by the two steering-committee members residing in Wadsworth, Texas, for ACEE ("and their specific appointee, Mr David Marke") to represent them in the proceeding.
The authorization further stated that we are in support of the contentions of that petition in an effart to assure our health, safety, and the presentation of no danger to our real property.
We further support as site representatives the position and operating guidelines of ACEE.
Finally, the ACEE petition included a statement by the group's Chairman that ACEE adopted Mr. Marke's contentions and authorized Mr. Marke to represent its interest.
In their response dated February 1,1979, the Applicants reiterated their opposition to the intervention of both Mr. Marke, in his individual capacity, and ACEE.
With respect to Mr. Marke's request for discretionary
,~
. 1 intervention, the response pointed out that a serious ques-tion existed as to Mr. Marke's credentials:
Applicants' counsel hap had a number of publication indices 14 checked; no citation to any publication by Mr.
Marke was found.
In addition, the Records Offices of the two campuses of the University of Nevada have advised that they have no record of the graduation there of a David Marke.15 The Office of Admissions and Reco.
i of the University of California at Berkeley advised that it has no record of a David Marke having attended the institution.
We are further advised by the Office of the Recorder, University Extension, that there is no record of Mr. Marke's enrollment la extension, correspondence or independent study. courses at Berkeley.
14 Nuclear Science Abstracts; Science Citation Index; INIS Atomindex; Readers Guide to Periodical Literature.
15 The Reno Records Office reported having a record of a Roy David Marke, Jr., who attended the College of Arts and Sciences for two semesters in 1964-1965.
February 1, 1979 brief, p. 8.
The Applicants acknowledged the possibility that their investigative efforts had been incomplete or that an error had been committed.
But the possibility that at least
-- some of Mr. Marke's representations made to us in support of his intervention were false or misleading seemed to us to be of sufficient import to call for the record's clarification.
Therefore, by Order dated February 7, 1979, we stated that we should be advised of certain specified information con-cerning Mr. Marke's education, his employment and experience, and his published articles.
The information was to be filed by February 16, 1979.
(Mr. 'tarke was read the Order by tele-phone on February 7, and a copy was mailed to him the same day.)
No information in response to the February 7 Order has yet been filed, nor any communication requesting an extensicn of tLne to do so.
2.
The crucial question which we face in ruling upon FM. Marke's intervention petition is the significance of the statements made by him in support of discretionary intervention and the implications which his failure to respond to our February 7, 1979 Order may impart to the remainder of his peti-tion and to the likelihood that he will assist in developing a sound record.
Before turning to that question, however, we will address whether Mr. Marke has demonstrated standing of right.
For if he has, the likelihood that he will assist in developing a sound record is irrelevant.
Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222,
_._ 227 fn. 11 (1974).
a.
We have earlier discussed at some length the general standards governing standing of right in an NRC proceeding.
Under those standards, Mr. Marke has not demonstrated that he has standing in his personal capacity.
His economic interests are not within the " zone of interests" arguably protected by the Atomic Energy Act or NEPA.
To the extent that his taxpayer status in Austin may constitute him a " stockholder" of one of the Applicant.3 (the City of Austin),
as he claims (see Tr. 56-58), we agree with the Staff (Tr. 68) that he is in the wrong forum to assert any complaints he has in that regard.
Moreover, to the extent he is asserting possible harm to his interest of a health and safety or environmental nature, he has not provided any reasonable gro nds for us to change our earlier expressed opinion that his residence and business location are too remote from the plant tq_ confer standing.
The possibility which he expressed that fuel assemblies or spent fuel will be shipped over the railroad or highway near his home or business is pure specu-lation; he has made no showing which suggests that the partic-ular railroad or road are more likely to be used than any other railroad or highway.
See Exxon Nuclear Co., Inc. (Nuclear Fuel Recovery and Recycling Center), LBP-77-59, 6 NRC 518, 519-20 (1977).
- -. Mr. Marke's fishing activities present a poten-tial basis for finding that he has standing of right.
On a number of occasions, the carrying on of recreational activities La areas in the general vicinity of a facility has been suffi-cient to confer standing.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-73-10, 6 AEC 173 (1973); Virginia Electric and Power Co., ALAB-522, suora, 9 NRC at (slip op., p. 5); Mississinoi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973).
And as we have seen, residence as far away as 40 or 50 miles from a facility has also been found to be a basis for conferring standing (see p. 9 supra).
But "occa-sional trips" to a community 23 miles from the,ite and other unspecified communities asserted to be "near" the site has beer held to be insufficient to confer standing.
Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143, 1150 (1977).
Although a close question, taking into account both the time in the area and the distance from the facility, the contact resulting from Mr. Marke's presence about once a month within 40 or 50 miles of the plant (or possibly a little closer, although to an undefined extent) for fishing activities appears to us to be de minimis and insufficient to confer standing in this proceeding as a matter of right.
- b.
Although discretionary intervention is gov-erned by a number of discrete factors, the one which is foremost --- and of overwhelming significance here -- is the degree to which the petitioner "would likely produce 'a valuable contribution'" to the decision-making process.
Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-363, 4 NRC 631, 6 33 (1976 ) ; Public
_ Service Co. of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-397, 5 NRC 1143, 1145 (1977); Tennessee Vallev Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1422 (1977).
In support of discretionary intervention, Mr. Marke supplied the extensive catalog of his occupational and educational background and experience, and cllusions to his papers, to which we earlier made reference.
That statement was sufficiently compelling to convince the Staff that Mr. Marke's experience and education could-support a finding that the petitioner could make a substantial contribution with regard to at least one of his contentions, should that contention be found acceptable.
It opposed discreticnary intervention only because it found that contention to lack the requisite specificity and basis.
Because of the events which followed (which we heretofore have described in some detail), we are lef t with
_ substantial doubts concerning Mr. Marke's qualifications and his ability or willingness to contribute to the decision-making process.
Mr. Marke had every opportunity to counter the assertions made by the Applicants and he chose not to do He has given us no reason at all for failing to respond so.
to our February 7, 1979 Order.
This course of conduct repre-sents a disrespect for the adjudicatory process in either of two ways.
Fi rs t, the process provides an effective medium for the Commission, through its licensing boards, to resolve disputed questions of fact; but a board cannot adequately resolve such disputes unless the statements made to it not only are truthful but are beyond any suspicion as to their veracity.
Failure to adhere to the ground rules of the system, as Mr. Marke apparently has done, engenders such suspicion and hence can be construed as a contempt for the system.
- Second, even if the statements are in fact accurate, the failure to respond to the Board Order necessarily casts doubt on them as well as on the degree to which Mr. Marke might be expected to help create a sound record.
The unanswered questions have other implicatb ns.
Not only do they cast doubt on Mr. ciarke's ability or willing-ness to contribute to a sound record but, as well, they create a cloud over every statement he has made, such as
. with respect to his various contentions.
Furthermore, although latervention petitions no longer need be under oath or affirmation, they nevertheless appear to be subject to the dictates of 18 U.S.C. 51001, which makes it unlawful, La any matter within the jurisdiction cf any agency of the United States, for a person knowingly and willfully to make "any false, fictitious or fraudulent statements or represen-tations."
Mr. Marke may be in violation of that statute.
As will appear later, we find several of Mr.
Marke's (and also ACEE's) contentions to qualify under the Commission's rules.
But given the discretion available to us in determining whether discretionary intervention should be granted, we hold that Mr. Marke's failure to respond to our February 7, 1979 Order, and the implications attendant from such failure, outweigh any contribution to a sound record which could be made by permitting him to litigate (in his personal capacity) the contentions we find accept-able.
We are accordingly denying his request for intervention as a matter of discretion.
,.- 3.
There are many points of similarity between the petitions of Mr. Marke and ACEE.
Among other matters, ACEE is centered in Austin, it appears to have designated Mr. Marke its representative for at least some purposes, and it has adopted Mr. Ma:<.se 's contentions. With some justification, we could consider the group as Mr. Marke's alter ego and reject its petition far the same reasons as caused us to turn down Mr.
Marke's petition.
We have not followed that course, however.
For the group is incorporated and appears to have an existence independent of bh.. Marke; it has a Chairman and a steering committee with m^mbers other than Mr. Marke; and two members of the steering commi~ttee reside in close proximity to the plant.
For these reasons, we have considered the group's petition as separate from that of Mr. Mbrke and -- except to the extent it may seek representation by Mr. Marke -- not prejudiced by the questionable statements made by Mr. Marke in his own behalf, a.
ACE 2 has set forth but one basis unuer which we could find that it has standing as of right --- the residence of two members of the steering committee (Mr. and Mrs. Robert Cook) in Wadsworth, Texas, essertedly less than 8 miles from the reactor.
As the Staff points out, on the basis of the recent Appeal Board decision in the North Anna proceeding, ALAB-522,
,.- "[i]f they are members, they satisfy the NRC's
- suora, criteria for standing.
If they are not members of ACEE, ACEE has not demonstrated standing as a matter of right" (NRC Staff response dated February 6, 1979, p. 4 footnote omitted).
See also Health Research Grouo v. Kennedy, F. Supp.
(D.D.C., No. 77-0734, March 13, 1979).
The Applicants acknowledge that ordinarily an inference can be made that members of an organization's steering committee are members of the organization.
But they claim that in this instance no such inference can be made, as a result of the varying references in ACEE's and Ihr. Marke's petitions, and statements made by Mr. Marke at the prehearing conference indicating that there may'be a difference between ACEE's " constituency" and its " members."
We agree.
Moreover, in our view, it is significant that Mr.
and Mrs Cook have never been explicitely described as
" members."
In their authorization of ACEE to represent them, they referred to themselves only as " site representatives,"
stating that, in that capacity, they support the " position and operating guidelines" cf ACEE.
And in the several list-ings of steering ccamitcee members which have been supplied to us, Mr. and Mrs. Cook similarly are characterized as
" site representatives."
, A petitioner is responsible for providing a Board with sufficient information for determining whether that petitioner has standing of right.
ACEE has not done so and, for that reason, we are ruling that it does not have standing.
From what is before us, however, we are unable to ascertain whether ACEE's failure to clarif;. the membership status of Mr. and Mrs. Cook reflects the actual status of their affiliation with ACEE or, alternatively, whether it represents a lack of experience in preparing pleadings.
If the latter, we do not believe it equitable to penalize ACEE.
For that reason, we will permit ACEE, within 10 days of the service of this Order, to file a statement that Mr.
and Mrs. Cook are members (and in fact were members as of December 26, 1978, the date when their names were first introduced into this proceeding and with respect to which we are evaluating ACEE's tardy application).
If Mr. and Mrs. Cook were members on December 26, 1978, and if they so advise this Board in a timely fashion, our finding with respect to ACEE's standing will be considered to be changed to reflect that ACEE in fact has stancing of right.
2ecause of our experience with ACEE's representative, this statement must be bv affidavit.
(We rej ect the Appli-cants' claim concerning the substantiality of ACEE's interest for the same reasons we rejected the similar claim with respect to CCANP.
See pp. 16-18, suora.)
. b.
ACEE's petition must also be regarded as untimely.
The first reference to that group appeared in Mr. Marke's December 26 petition; for that reason, we will regard it as being submitted as of that date.
We are thus required to balance the grant of the petition against the five factors specified in 10 CFR S2.714 a):
(1)
The first factor (good c icse for the delay) weighs against the petitioner.
Despite our request (Tr. 41), ACEE made no attempt to explain why it had not made known on a timely basis at least its desire to have its interests represented.
(2)
The second factor (whether there are other means whereby the petitioner's interest will be pro-tected) weighs in favor of the petitioner.
ACEE could make a limited appearance pursuant to 10 CFR $2.715(a), but both the Commission and the Appeal Board have recognized that such an appearance is not an adequate suostitute for participation as a party.
Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4,1 NRC 273, 276 (1975);
Duke Power Co. (0conee-McGuire), ALAB-528, 9 NRC (February 26, 1979) (slip op., pp. 6-7).
.- (3)
Assessment of the third factor -- the ex-tent to which ACEE's participation may reasonably be expected to assist in developing a sound record --- depends on the rep-resentative whom ACEE selects to represent it.
If it should choose Mr. Marke, the factor would weigh against ACEE, for the same reasons which caused us to reject Mr. Marke's request for discretionary intervention.
If it should select someone else, the likelihood would be substantially greater that ACEE could assist in developing a sound record, in light of the organi-zation's expressed intent of utilizing " experts or consultants" in this proceeding.
The factor would then weigh in ACEE's favor.
(4)
Two of the ACEE contentions which we find acceptable (numbers 2, 18 and 21, considered collectively, and number 5) cover some of the same ground as the two CCANP conten-tions which we have admitted.
To that extent, ACEE's interest is likely to be represented to some degree by CCANP.
Because an operating license hearing is for the most part limited to accepted contentions, other parties to the proceeding will not have an opportunity to represent ACEE's interests with respect to the other matters it seeks to raise.4/
This fourth factor therefore weighs slightly in ACEE's favor.
4/
ACEE Contention 10 covers some of the same ground as CEU
~
Contention 7.
Because we have not accepted the CEU con-tention at this time, we cannot find that CEU will represent ACEE's interest in this regard.
(5)
The final f actor --- the extent to which ACEE's participation will broaden the issues or delay the proceeding -- weighs in ACEE's favor.
To be sure, the issues will be somewhat broadened.
For to the extent ACEE's issues do not duplicate those of other parties, there will be addi-tional matters to be litigated.
But the proceeding is merely in its incipiency and is not likely to be delayed.
In any event, completion of Unit 1 is not currently predicted by the Applicants as occuring prior to November, 1981, allowing sufficient time to complete the proceeding with or without ACEE's participation.
Balancing the foregoing factors, we find that ACEE's untimely petition should be denied as long as ACEE elects to utilize M. Marke as its representative.E!
Otherwise, r
the balance of factors would favor not precluding ACEE's partic-ipation because of untimeliness.
If ACEE chooses to obtain an alternative representative, it should advise us that it intends to do so at the same time it supplies the information relative to hk. and Mrs. Cook's membership which we earlier stated that ACEE could provide.
It should also supply us with the repre-sentative's name address, and authorization to represent the 3
group, if available.
5/
We read 10 CFR 52.713(c) as applicable only to attorney-representatives and not to the situation before us.
None-theless, the questionable statements made by Mr. Marke, or alternatively his blatant disregard of this Board's Order maybeconductofthetypeencompassedby10CFR62.713(c)
(2), (4), and (5).
.- B.
As previously indicated ACEE Contentions 2, 18 and 21 (considered collectively) overlap CCANP Conten-tion 2; and ACEE Contention 5 overlaps CCANP Contention 3.
We find them acceptable for the same reasons as we admitted the CCANP contentions.
Even more than the CCANP contention, ACEE Contentions 2, 18 and 21 should be further particularized to specify the precise construction defects or practices which the petitioner has in mind and the QA provisions which it claims are being violated.
Argumentative terms such as
" negligent," " incompetent" and " fraudulent" appear to have no factual foundation or basis and hence should be deleted.
In order to authorize intervention by ACLE, we need only find one contention which satisfies the Commission's rules.
We have here determined that at least two subject areas of ACEE's contentions qualify as acceptable contentions.
Certain others also qualify; but given the outstanding contingencies with respect to ACEE's members and its repre-sentative, further discussion of the ACEE contentions at this time is not warranted.
If necessary, the hearing Board (which consists of the same members as this one) will issue an order treating ACEE's remaining contentions.
. III.
The undated petition of D.
Michael McCaughan, a member of "The Environmental Task Force," which did not reach us until November 1,1978, is admittedly untimely.
Beyond that, it is patently inadequate to serve as a basis for inter-vention.
In the first place, it is devoid of information which indicates that the petitioner may have standing of right.
He apparently resides in Houston, Texas, which is some 70 miles from the facility -- beyond the geographical zone which might give rise to a health and safety interest.
Second, the 23 numbered paragraphs identify some concerns of the petitioner; as the Staff points out, they possibly can be considered as identifying the " aspects" of the pro-ceeding in which the petitioner seeks to participate.
Many raise questions beyond the scope of a proceeding such as this.
And none includes any " bases * *
- set forth with reasonable specificity," as required by 10 CFR 52.714(b),
to permit it to be considered a valid contention.
Finally, the petitioner was given an opportunity to supplement his petition prior to the prehearing conference.
He failed to do so.
He also did not appear at the conference.
. Nor has there been any further communication from him.
In these circumstances, a balancing of the factors relative both to untimely petitions, and discretionary intervention, clearly calls for denial of the petition.
Indeed, the petition appears to have been abandoned.
We accordingly deny the petitlen.
IV.
CEU's petition is likewise untimely.
At the January 11, 1979 prehearing conference, we became aware that CEU wished to become a party, but its petition was no' filed until approximately 6 weeks later.
l'he Applicants oppose the CEU petition on the basis of lack of standing, lack of an admissible contention, and untimeliness.
On the other hand, the Staff asserts that the group has demonstrated standing of right, that it has advanced two viable contentions, and that (upon a balancing of relevant factors) its petition should not be denied on the basis of untimeliness.
Although we find that we need further information to rule on certain of CEU's contentions, we essentially agree with the Staff's analysis.
. A.
CEU seeks to base its standing solely on the residence and the business and recreational activities of its members.
We have earlier pointed out that such a course is open to an organization (see pp. 8-11, suora).
CEU states that it is a corporation organized in 1976.
The corporate status does not preclude it frrm representing its members.
P: blic Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976).
CEU describes itself as having a " constituency" throughout the state of "many thousands," of which 'ove r 5000" reside within a 50-mile radius of the plant and more than half of whom live within 30 miles-of the -facility.
It has listed a group of cities and townships within 30 miles of the facility and the number of CEU members residing in each of those towns (totaling 3838 members collectively).
It further has provided a general description of a number of the business and recreational activities undertaken by its members in areas close to the plant.
Most important, CEU has identified one member -- Mrs. Kenneth C. Buchorn -- who possesses real property within 30 miles of the plant; it has supplied that member's authorization for CEU to represent her in this proceeding and a statement that she supports CEU's contentions "in an effort to assure my health, safety,
. and the present; tion of no danger to my real property."
There is also supplied an authorization for Mrs. Buchorn to represent CEU in the proceed'ag.5I The Applicants base their claim that CEU lacks standing of right on the proposition that it is impossible to ascertain the nature of the organization because of the varying descriptions appearing in che petition of its " constituency," " membership,"
" membership mailing list," and " persons represented. "
They state that those terms "are used in the petition in such a confusing manner that one cannot tell whether those described are actually
' members' of the organization."
The Applicants acknowledge that one member (Mrs. Buchorn) does reside within the "geo-graphic zone of interest."
But they maintain that, given the identity of the authorized representative and the identified member, the petition 'may be little more than a document filed by a person on her own behalf."
Because the petition sought standing and participation not on behalf of Mrs. Bucho rn individually but only on behalf of CEU, the Applicants would deny it as "no more than an individual attempt to obtain organizational status for individual action."
1/
The Staff ascertained that Mrs. Peggy Buchorn, the authorized representative, was the same person as Mrs. Kenneth C. Buchorn, the only identified member with interests within the " geographical zone of interest."
,. We disagree.
The general descriptions of CEU which have been provided us, although not as precise or as informa-tive as might be desirable, serve only to place into a meaning-ful context the organization's purposes.
As the Staff has pointed out, " geographic proximity of a member's residence to a facility is deemed enough, standing alone, to establish the interest requirements of 10 CFR 52.714" (citing North Anna, ALAB-522, suora).
As long as an organization possesses an organizational existence -- which CEU appears to have --, the circumstance that the organization's authorized representative and the single member who has authorized CEU to represent her interests are the same person does not operate to deprive CEU of standing._in A representative. capacity.1!
In short, we hold -
that CEU has established standing of right.8/
7/
It may well be that Mrs. Buchorn does not have the personal financial capability to participate individually.
Given the Commission's current policy of not providing financial assistance to intervenors but, at the same time, seeking means for alleviating the costs of such participation (see Nuclear Regulatory Commission (Financial Assistance to Participants in Commission Proceedings), CLI-76-23, 4 NRC 494, 514-16 (1976)), it would be anomalous indeed for us to erect an additional barrier to participation in a licensing proceeding.
8/
We grant the Applicants' March 26, 1979 motion for leave to lodge with us the opinion in Health Research Grouc v. Kennedy, F. Supp.
(D.D.C., No. 77-0734, March 13, 1979).
That opinion, which denied standing in a representative capacity to an organization which had no members (and was precluded by charter from having members) Eut which sought " standing solely' as representatives of their contributors and supporters * * *,
is consistent with the result we are reaching with respect to CEU, which clearly has identified at least one member as well as with respect to ACEE which has not clearly identiried a member who could confer, standing upon the organization (see
- p. 42, suora).
.- B.
CEU has submitted 9 contentions.
The Staff would accept two c f them (numbers 1 and 5); the Applicants oppose all of them.
We agree with the Staff that Contentions 1 and 5 are acceptable, but we withh.;1d decision on the rest of them pending receipt of additional information.
At the outset, we wish to note that none of the contentions is written in a form suitable for contentions.
All of them appear to combine allegations suitable for con-tentions with argumentation why we should accept them.
Even those which we are accepting at this time should be rewritten to assert only the specific matters at issue.
The statements relied on by the Staff in its discussion of Contentions 1 and 5 represent the type of assertions to which the contentions should be limited.
As provided later, CEU may wish to seek the assistance of the Staff and/or the Applicants in reformulating its contentions.
1.
Centention 1 questions the analysis of hurri-canes and tornadoes appearing in the Applicants' Environ-mental Report (ER) and the Staff's construction-permit Safety Evaluation Report (SER).
The Staff states that to the extent CEU is contending that the operating wind speed of 120 mph with a peak gust value of 156 mph appearing in
. those documents is not sufficient, it states a valid conten-tion.
As a basis, CEU gives examples of hurricanes which have impacted the Louisiana snd Texas coasts in the last 20 years and which, it claims, have exceeded this design basis.
The Applicants claim that hurricanes were analyzed at the construction-permit stage and that no new information has been provided; and, further, that the claims are with-out merit.
Whether or not CEU's claims have merit is a matter which must be determined through further adjudication.
We cannot say at this time what weight should be given state-ments in the ER. And unlike environmental questions, ther-is no basis under the Atomic Energy Act or NRC rules for excluding safety questions at the operrting license stage on the basis of their consideration at the construction permit stage --- even when ne additional information beyond that considered earlier has been supplied.
This fact was poignantly recognized by a member of the Appeal Board in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 50-51 (1978) (separate opinion of Mr. Sharfman, concurring in part and dissenting
.- $n part).A!
The only exception -- also recognized by Mr. Sharfman (id., 8 NRC at 50, fn. 2) - is where the same party tries to raise the same question at both the construction permit and operating license stages, and where principles of res judicata and collatoral estoppel then come into play.
See Alabama Power Co. (Joseph M.
Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC 203 (1974).
That being so, the construction permit SEE -- or even the initial decision --- cannot operate to preclude relitigation of a safety issue at the operating license stage.
(This is even more persuasively so where, as here, the construction permit proceeding was uncontested.
f: [.
J Commonwealth Edison Co. (LaSalle County Nuclear Station, Units 1 and 2), ALAB-193, 7 AEC 423, 425 (1974).)
2.
Contention 5 is somewhat vague but, as the Staff points out, it can be read as contending that, in calculating estimated airborne emissions and releases to comply with 10 CFR Part 50, Appendix I, the Applicants have 9/
No member of the Appeal Board majority in this case
~
expressed any disagreement with the particular views of Mr. Sharfman which we are here citing.
,. failed to consider adequately the effects of humidity.
It points to the " unusually high and relatively continual humidity level in the area."
The Applicants claim that the contention ignores the extensive consideration given this issue at the construc-tion permit hearing.
As we pointed out in conjunction with Contention 1, that is not a valid basis for precludfig con-sideration of a safety issue at the operating license stage.
The Applicants also assert that the impact of humidity was not ignored.
But whether that is so goes to the merits of the contention and not to its acceptability.
We repeat that the ER, which the Applicant cites, has not been introduced into evidence and cannot be used to resolve a claim going to the merits of a matter discussed therein.
3.
As for CEU's remaining contentions, we do not have enough information to accept or reject any of them.
The filing of CEU's petition after the special prehearing conference made this situation almost inevitable.
Because we believe that certain of the matters raised may possibly warrant adjudication, we are affording CEU an additional opportunity to perfect certain aspects of its contentions, along the following lines.
. Contentions 2, 3 and 4 raise environmental questions which, according to both the Applicants and Staff, were considered during the construction-permit review.
In contrast to safety questions, the environmental review at the operating license stage need not duplicate the construc-tion-permit review.
To raise an issue in an operating license' hearing concerning environmental matters which were considered at the construction-permit stage, there needs to be a showing either that the issue had not previously been adequately considered or that significant new information has developed after the construction permit review.
Fermi, LBP-79-1, supra, 9 NRC at (slip op.,
- p. 24a).
Contention 2 suggests that new information may exist with respect to the environmental Lapact of the facility's operation on certain forms of marine life, but it does not describe the information (or its source) with sufficient particularity for us to determine how new or significant the information is.
Similarly, Contention 3 suggests that impacts on certain wildlife species were inadequately con-sidered but does not provide enough details as to why this sc.
In like manner Contention 4 suggests that flooding of the cooling pond has been inadequately considered, and that
. CEU members are aware of information on this subject which has not been considered in the environmental review; but again, it does not supply sufficient detail for us to evaluate the acceptability of the contention.
Given these deficiencies, we might reject all three contentions as failing to conform to the requisite standards.
In view of the Conmission's public interest responsibilities with respect to the balancing of environ-mental impacts, however, we have elected not to rule on these contentions at this time and to afford CEU an opportunity to supply the additional information we have outlined, assuming that it is available.
In this connection, we disagree with the Applicants' and Staff's interpretation of a portion of Contention 3 as constituting a challenge to the standards of 10 CFR Part 50, Appendix I; we read it instead as seeking to raise the question of the " residual risks" of prescribed levels of emissions, as permitted by Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003 (1973).
If it chooses to revise these contentions, CEU should addre_a whether our reading is accurate.
It is not entirely clear whether Contention 6 raises an environmental or a safety question; we read it as
.- a safety matter which takes issue with the cow-milk path-way calculations for radiation exposure.
Specifically, it seems to assert that, contrary to the information supplied by the Applicants, there are cows closer than 5 miles to the plant.
No specific information concerning the location of any milk-producing cows is provided.
If CEU should have information demonstrating that such cows are present within 5 miles of the facility, the contention would be a valid one.
This is so notwithstanding the Staff's claim that a re-evaluation of milk-producing livestock in the area to deter-mine the acceptability of emissions will be undertaken in accordance with the standard technical specifications which will be made part of the operating license.
That goes to the merits of CEU's claim, not to the acceptability of its contention.
Contention 7 appears to raise a safety issue with respect to the availability of makeup water for the main cooling reservoir.
The Applicants and Staff assert that the question was ader
- aly considered during the construction permit revies but, as we pointed out in connection with Contention 1, that does not preclude raising the issue again at the operating license stage.
The Applicants also point out that many of CEU's claims
. ere simply incorrect; whether that is so goes to the merits of the er atention, not its acceptability.
In order for the contention to be acceptable, however, further particulariza-tion of the information or data relied on is necessary, to assure that a real issue is presented.
Contention 8 relates to the emergency plan for the facility; it claims that the only evacuation route for certain persons requires them to go closer to the cause of the evacuacion in order to get away from it.
A sLnilar claim was accepted as a contention in Fermi, LBP-79-1, supra, 9 NRC at (slip op., pp. 12-13).
See also Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-248, 8 AEC 957, 963 (1974).
In Fermi, however, it was clear that the persons who were to be evacuated resided in an area where evacuation was required.
Based on the information provided us, it is unclear whether that situation obtains here.
As previously indicated (p. 26, suora), current-ly effective Commission regulations do not require an emer-gency plan for areas outside the LPZ, which here has an outer radius of 3 miles from the plant.
The currently pro-posed regulations which we are directed to apply pending
. 10/
adoption of final regulations do permit emergency planning measures in certain circumstances for areas outside the LPZ, but only where there is presented "particular information why such a plan would be warranted."
Fermi, LBP-79-1, supra, 9 NRC at (slip op., p. 12).
Such information might con-sist of such matters as design features of the facility, particular physical characteristics of the area, the presence of institutions (such as schools), and the applicability of Federal or State emergency ection criteria.
Pennsvlvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC (March 6, 1979) (slip op., pp. 30-34).
The proposed Contention 8 refers to persons located east / southeast of the facility, "up to 17 miles distant from the plant."
There is no showing whether any of those persons are located within the LPZ or the slightly larger area which might have to be evacuated under Federal or State emergency action criteria.
Similarly, although there is reference to a school, there is lacking any
~~-10/ The Staff takes the position that it is bound by the existing regulations and case law, rather than by the proposed rule.
Because the Commission has decreed otherwise, we disagree.
See 43 Fed. Reg. at 37475.
. information on the location of that school and its relation-ship to the Commission's proposed regulations.
Absent infor-mation of this type, it is impossible to reach an informed judgment as to whether CEU has raised an issue which warrants adjudication.
Contention 9 is a safety contention which covers the same general area as CCANP Contention 2 and ACEE Contentions 2,18 and 21 (considered collectively).
We have indicated that the CCANP contention is acceptable, subject to minor revisions, and that ACEE's contention is acceptable if it is extensively particularized.
We accord similar treatment to CEU's contention as to ACEE's (see
- p. 47, supra).
C.
Because CEU's petition was untimely, we must balance the factors specified in 10 CFR 52.714(a) in ruling upon its intervention.
We agree with the Staff that CEU's petition should not be denied because of untimeliness.
As both the Applicants and Staff point out, CEU has not shown " good cause" for its delay.
Contrary to CEU's claim, adequate publicity was given to this proceeding.
_- Moreover, CEU took more than 6 weeks from the prehearing conference (at which its representative appeared and made a statement) before filing its petition.
This factor thus does not weigh in favor of CEU.
The other factors, however, all weigh in the petitioner's favor.
Other means for protecting CEU's interests (the second factor) are not adequate, for reasons stated in connection with ACEE's petition (p.
44, supra).
Although the extent to which CEU may assist in developing a sound record (factor 3) is difficult to assess, the organization claims expertise in certain areas.
Such expertise might be particularly useful with regard to CEU's claim respecting hurricanes (Contention 1).
Except with respect to Contention 9, CEU's contentions are different from those of other parties which we have accepted; given the nature of an operating license proceeding, CEU's interests 4
are thus not likely to be represented by other parties (factor 4).
Moreover, as the Staff notes, CEU appears to have a much greater membership residing near the facility than do other parties.
Finally, as in the case of ACEE, although CEU's intervention will broaden the issues, it is no t likely to cause any delay which would disrupt the proceeding (factor 5).
.~
. In balancing the factors and determining that CEU's participation should not be barred for untimeliness, we stress that CEU is required to "take the proceeding as it finds it."
Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 276 (1975).
It thus cannot reserve any rights to submit new contentions, as a petitioner may normally do until 15 days before the first prehearing conference (which here has taken place).
(For " good cause," of course, new contentions may be introduced at substantially later dates.)
- Moreover, because our determination on many of CEU's contentions has been delayed -for lack vf-lufvi.auulon -(whirtrue otherwise-would obtain through the prehearing conference), CEU cannot be heard to complain if the discovery time with respect to any contentions which may hereafter be accepted is shorter than with respect to other contentions which we here have found acceptable.
.- V.
1.
With respect to the contentions of CCANP and CEU which we have accepted, but concerning which we have indicated that some further particularization or rewriting is called for, those parties may wish to seek the assistance of the Staff and/or the Applicants and to attempt to reach agreement on the wording of the various contentions.
Within 30 days of the date of service of this Order, the parties are to report to the hearing Board their progress in this regard, including contentions as to which there is agreement as to final wording and those where a dispute remains.
CEU may also wish to nego-
.. tiate with the Staff and Applicants about the contentions on which we have not finally ruled;.in any event, it should sub-mit within 30 days either a stipulation or the further infor-mation we have called for in order to determine whether those contentions are acceptable.
The hearing Board (which is com-posed of the same members as this one) will then make a final determination with respect to the "open" issues.
Cf. Fermi, LBP-79-1, suora, 9 NRC at (slip op., p. 27).
2.
We have deferred ruling on most of ACEE's contentions pending its furnishing (within 10 days of the date of service of this Order) supplementary information relative to its mem-bership and representative.
If it submits the information
. which we have outlined, its petition will be deemed to be granted.
(If any party believes that information which is submitted does not respond to the conditions we have set forth in that regard, it may move for reconsideration of this Order insofar as it may operate to admit ACEE as a party.)
After receipt of such information, the hearing Board will pro-ceed to rule on the ACEE contentions which have not been dealt with here.
3.
On January 30, 1979, the United States District Court for the Northern District of Texas issued a me=orandua opinion in the case of West Texas Utilities Co. and Central Power and Licht Co. v. Texas Electric Service Co. and Houston Lighting & Power Co. (no. CA3-76-0633-F).
That antitrust decision raises the possibility that one or more of the Appli-cants in this proceeding may not participate in the South Texas project and that the ownership of the project will have to be changed.
In the event that should occur, there would be hnplications with respect to the financial qualificaticas of the Applicants to operate and decommission this facility and the need for the power which it will produce.
ACEE's contentions include one on need for power and another raising the question of the financial qualifications of one Applicant, the City of Austin.
We have not yet ruled i
on those contentions.
But whether or not those contentions are accepted, the Applicants are put on notice that they will be expected to address their financial qualifications (not limited to the City of Austin) and the need for this facility, given the various implications of the District Court decision.
For the foregoing reasons, the requests for a hearing and petitions for intervention of Citizens Concerned About Nuclear Power, Inc. (CCANP) and Citizens for Equitable Utilities, Inc. (CEU) are granted.
The request and petition of Austin Citizens for Economical Energy (ACEE) is denied; but, if the information outlined in Part II of this Order is submitted within 10 days of the service of this Order, the ACEE petition will be deemed to be granted.
The requests and petitions of David Nbrke and D. Michael McCaughan are denied.
The request of the State of Texas to participate as an " interested State" pursuant to 10 CFR 52.715(c) is granted.
The Applicants' bbtion for Additional Procedures is denied.
A Notice of Hearing, in the form of the attachment hereto, is today being issued.
This Order shall be considered final for appeal pur-poses as of the date of its issuance; except that, with
. respect to ACEE, it shall be considered final as of the latest date when the information outlined in Part II of this Order (concerning ACEE's members and its authorized representative) could have been submitted, or the date when it actually is submitted, whichever is earlier.
This Ord.ar is subject to appeal to the Atomic Safety and Licensing Appeal Board pursuant to the terms of 10 CFR 52.714a.
Any such appeal must be filed within ten (10) days after service of this Order or, with respect to the ACEE petition, within ten (10). days af ter the date specified above when the Order becomes final.
The appeal shall be asserted by the filing of a notice of appeal and accompanying support.
ing brief.
Any party other than the appellant may file a brief in support of or in opposition to the appeal within ten (10) days after service of the appeal.
THE ATOMIC SAFETY AND LICENSING BOARD designated to rule on petitions for leave to intervene.
//.. i.
' ', j.
i Charles Bechhoefer, Chairman Dated at Bethesda, Maryland, this 3rd day of April, 1979.
Attachment:
Notice of Hearing