ML19263E489
| ML19263E489 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 05/02/1979 |
| From: | Mcgurren H, Ulman M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7906190032 | |
| Download: ML19263E489 (28) | |
Text
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.g NRC PUBLIC DOCIDENT ROOM' UNITED STATES OF A.'.1 ERICA NUCLEAR REGULATORY CO:.i.'.IISSION BEFORE Tile ATO..!IC SAFETY AND LICENSING APPEAL BOARD In the hiatter of
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1
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HOUSTON LIGHTING AND POWER
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Docket Nos. 50-498 COh1PANY, ET _A_L.
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50-499 l
(South Texas Project, Units 1 and 2) )
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A v' 'M NRC STAFF RESPONSE TO APPLICANTS' BRIEF ON APPEAL FROM PREHEARING CONFERENCE RULING UPON INTERVENTION PETITIONS 2300 210 May 2,1979 7906190031 h
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. i-TABLE OF CONTENTS Page I. INTRODUCTION........................
1 i
II. STATEMENT OF THE CASE 2
1 III. ARGUMENT..........................
6 A.
The Licensing Board Did Not Abuse Its Discretion In Balancing the Factors of 10 CFR 52.714 Regarding Untimely Petitions 6
B.
The Information Provided At the Request of The Licensing Board To Supplement a Timely Filed Petition For Leave to Intervene Did Not Render The Petition Untimely
..........12 C.
The Licensing Board Did Not Err In Finding That Certain Petitioners Made a Satisfactory Showing of Standing As a Matter of Right 15 IV. CONCLUSION........................
22 l
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TABLE OF AUTHORITIES Page Cases Health Research Grouo v. Kennedy, F.Supp.
(D.D.C. No. 77-0734, March 13,1979) - pp.19, 20..
20, 21 Hunt v. Washington State Acole Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441 (197 7 )........
19, 20 Administrative Decisions Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420 (1976) 17 Duke Power Company (0conee-McGuire), ALAB-528, 9 NRC
, (February 26,1979) (Slip op. pp.6-7) 10 Duquesne Light Comoany (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243 (1976)............
17, 19
~
Florida Power and Licht Comoany (St. Lucie Nuclear j
Power Plant, Unit No. 2), ALAB-420, 6 NRC 8, 13 i
(1977) 6, 8, 10, 11 1
Houston Lighting and Power Comoany (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC (April 4, 1979) (Slip op.).........
17, 18 Northern States Power Company (Prairic Island Nuclear Generating Plant, linits i and 2),
ALAB-107, 6 AEC 188 (1973) 19 Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975)..........
6, 8, 10, 12 i
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Uni ts 1 and 2), ALAB-322, 3 NRC 32 8, 330 (19 76 )......................
15, 16, 17 Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units I and 2),
ALAB-339, 4 NRC 20 (1976 ).................
8 Public Service Electric and Gas Comoany (Salem Nuclear Generating Station. Units I and 2),
ALAB-136, 6 AEC 487, 039 (1973).............
15, 17 2300 212
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I
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Page Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418 (1977) 7, 8 Virginia Electric and Power Comoany (North Anna Power Station, Units 1 and 2), ALAB-145, 6 AEC 6 31, 6 34 ( 19 7 3 )......................
15 t
Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), ALAB-342, 4 NRC 98 (1976).........................
8, 10 Virginia Electric and Power Comoany (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522,
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NRC (January 26,1979) (Slip. op. at 3)......
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Washington Public Power Supoly System (WPPSS Unit 2) LBP-79-7, 9 NRC (1979) 16 NRC Regulations 10 C FR 5 2. 714.......................
6, 7, 9, 14
}
}
10 CFR 62.714(a) 1, 7, 9, 12, 13 4
1 10 C FR B 2. 714 (a ) (1 )....................
14 10 C FR 5 2. 714 (a ) ( 3 )....................
13, 14 10 CFR 52.714(b) 13 10 C FR 5 2. 714 ( d ) (1 )....................
18, 20 i
10 CFR 62.715(a) 10 Federal Register 43 Fed. Reg. 33968 (August 2, 1978)............
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05/02/79 I
UdITED STATES OF A.'.IERICA NUCLEAR REGULATORY CO:.. ISSION l
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL EOARD In the Matter of
)
)
HOUSTON LIGHTING AND POWER
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Docket Nos.30-498 l
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50-499
)
(South Texas Project, Units 1 and 2) )
NRC STAFF RESPONSE TO APPLICANTS' BRIEF ON APPEAL FROM PREHEARING CONFERENCE RULING UPON INTERVENTION PETITIONS I. INTRODUCTION 1
By means of a Notice of Appeal dated April 17,1979, and accompanying brief, Houston Lighting and Power Company, et al. (Applicants) have appealed the l
Order of the Atomic Safety and Licensing Board (Licensing Board) dated l
April 3,1979, granting certain petitions for leave to intervene in this operating licensing proceeding. In their appeal, Applicants assert that:
(A)
The Licensing Board abused its discretion in balancing the factors of 10 CFR s 2.714(a) for late filed petitions in granting the petitions of Citizens for Equitable Utilities, Inc.
(CEU) and Austin Citizens for Economical Energy (ACEE).
i (B)
Notwithstanding that the initial petition to intervene filed by Citizens Ccncerned About Nuclear Power, Inc.
(CCANP) was timely filed, the subsequent supplemental 2300 214
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filing by an individual that he was a member of CCANP I
and desired it to represent him raised a question about the timeliness of the petition which the Licensing Board improp-erly failed to sddress.
(C)
The Licensing Board erred in determining that CEU, ACEE and CCANP have made a satisfactory showing of standing as a matter of right.
For the reasons stated below, the NRC Staff opposes the appeal and urges that
.it be denied.
I l
i II. STATEMENT OF THE CASE This proceeding concerns the application by Houston Lighting and Power Co. et t
]'
al., for operating licenses for the South Texas Project, Units 1 and 2 (STP), 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 1
]
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 pe.dtions for leave to intervene were to be filed.
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Five petitions for leave to intervene were filed. In addition, the State of Texas sought participation as an " interested State." The first intervention petition, dated August 24, 1978, and postmarked September 5,1978, was filed by David Marke. The second petition, undated but postmarked August 30,1978, was I
filed by CCANP. The third, an undated petition received by the Commission on November 1,1978, and postmarked October 25, 1978, was filed by D. Michael McCaughan, a member of "The Environmental Task Force." The fourth, sub-mitted on January 29, 1979, was filed by Mr. Marke on behalf of ACEE.
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Finally, a petition dated February 23, 1979, was filed by CEU.
In Orders dated October 23, 1978, and November 17, 1978, the LicensingBoard discussed the requirements which must be satisfied for an intervention petition j
to be granted and noted deficiencies in the petitions already filed. In a second Order dated November 17, 1978, the Licensing Board gave petitioners until December 26, 1978, to file supplemental petitions.
A prehearing c onference was held on January 11, 1979. On April 3,1979, the i
Licensing Board issued its "Prehearing Conference Order Ruling Upon Inter-i vention Petitions" (Order). This Order granted the petitions of CCANP nd CEU, as well as the unopposed request of the State of Texas to participate as an " interested State". The petitions of Mr. Marke and Mr. McCaughan were de nied. The petition of ACEE was conditionally denied. The Order pro-vided that the petition of ACEE would be granted it within 10 days of service 2300 216
-- * ~ ~ ~N of the Order ACEE filed additional information concerning the membership status
~.~~..dividuals.
of two in (Order at 43). The Applicants' appeal of the Order is directed e
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l to the grant of the petitions to intervenadCEU and CCANP and the conditional 1/
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grant of the petition of ACEE. (Appeal at 2).-
The pertinent facts as to CEU's and CCANP's petitions are as follows. On February 23, 1979, a petition for leave to intervene was filed on behalf of CEU h, Mrs. Peggy Buchorn. CEU described itself as having a " constit-uency" throughout the State of Texas, with "over 5000" of its members residing within a 50-mile radius of the plant and with more than half of those members living within 30 miles of the facility and therefore scught standing based on the residence and the business and recreational activities of its members.
f' CEU identifed one member, Mrs. Kenneth C. Buchorn, who " possesses real I
property within 30 miles of the STP, one parec1... income producing...
and die other... her domicile... from which she and her family gain suste-nance by utilization of the land". Attached to the petition is a letter signed by Mrs. Kenneth C. Buchorn stating support of the contentions of CEU "in an effort to assure my health, safety and the presentation of no danger to my 1/ The Staff has not received any filing from ACEL; to date. Furthermove,
during a telepnene conference with Mr. Roger Luncan, Chairman of ACEE, NRC Staff Counsel was advised that ACEE citended to withdraw its petition. In these circumstances, the Licensing Board's conditional denial of ACEE's petition must be considered as having become a full d er.ial. Accordingly, Applicants' appeal as to ACEE may be considered as moct and will not be further addressed by the Staff. See also Applicants' " Supplemental liemorandum" datec' April 27, 1979.
2300 217
real property" and authorizing its Executive Director, hirs. Peggy Buchorn, to i
represent her in this proceeding. (By telephone conference with '.frs. Buchorn I'
on h! arch 7,1979, NRC Staff Ccunsel determined that hirs. Kenneth C. Suchorn and hirs. Peggy Buchorn are the same person.)
^
CCANP's initial petition for leave to intervene was filed on August 30, 1973.
x dexrib_egCANP as a group headquartered in San Antonio, Nm Texas. No particular members were idhified. hut the members were described generally as " residents of San Antonio." Both health and safetyDe x
interests of the group's members were said to be affected by the operation of the facility. Since CCANP's original petition failed to identify specific members whose interest might be affected, CCANP filed, pursuant to the Board's November 17, 1978, 4
Order, a supplemental petition dated December 26, 1978, which identified three j
individuals living with 25 miles of the plant. At the prehearing conference, on Jan-uary 11,1979, the Board was advised that certain CCANP members in hiatagorda County, Texas, had asked CCANP to represent their intercats (Tr. 72), either by telephone or by letters. (Tr. 74). CCANP offered to provide both a written autho-rization of one or more members for CCANP to represent them and the authorization for the CCANP member appearing at the conference to represent the group.
(Tr.75-77). CCANP thereafter filed, on January 14, 1979, a statement by hir. George J. Bunk, stating that his house and property are within 7 miles of the site, that he is a member of CCANP and desires the organizaticn to 2300 218
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represent his interests in the proceeding, and that he adopts and supports the statement of interests and contentions in CCAMP's petition, as amended. CCANP also filed a statement by its two "co-coordinators" (who "have the authority to make public the group's policies and decisions") that the person who had signed i
l CCANP's supplemental petition (and had appeared for it at the prehearing con-ference) was authorized to do so and to represent the group's interests in the proceeding.
i i
III. ARGUMENT A.
The Licensing Board I)id Not Abuse Its Discretion In Balancing The Factors of 10 CFR s 2.714 Recarding Untimely Petitions The Commi crventipon regulations,10 CFR S 2.714, including its N
m tests for disposition of untimely petitions, wer7piirpcschr drafted with the idea of "giving the licensing boards broad discretion in the circumstances of individual cases". Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4,1 NRC 273, 275 (1975); Fbrida Power and Licht Comoany (St. Lucie Nuclear Power Plant, Unit No. 2) ALAB-420, 6 NRC 8,13 (1977).
In light of this
.t of " broad discretion" the Appeal Board has noted that they y
f are " free to reverse a decision granting a tardy petition to intervene only where it can be said that the board's action was abusive". St. Lucie, suora, at 13.
As set forth more fully below, the Staff believes that the Licensing Board's discretion was not abused.
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l The Applicants cite the Appeal Board's decision in Tenneseee "allt.v Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1413 (1977) for the proposition that a more extensive showing with regard to the 10 CFR s 2.714 i
factors is required in an operating license proceeding (Applicants' Brief at 7,10 and 15) than is required in a construction permit proceeding.2/ Applicants' reliance on this case for this proposition is misplaced. The y_latts Bar deci-
[
sion does not create a double standard (one more stringent in an CL proceeding) i j
for the exercise of the " broad discretion" for disposition of untimely petitions.
1 Instead, that decision and the admonition noted by Applicants (Applicants' Brief at 7) clearly relate to " discretionary intervention", a situation where, as the Appeal Board notes, there is no standing as a matter of right, and "a hearing is triggered at the instance of one who has not alleged a cognizable f
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l personal interes t". - Therefore, the Appeal Board adds, "there should be cause to bene. tA scernible public interest will be served by the hearing".
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This proposition also appears to serve as the basis for assertions (pp.14 and 15) that the Board assumed that a hearing would be held when it was balancing the factors of 10 CFR 3 2.714.
-3/
As the Appeal Board observed in Watts Bar:
".. the pivotal factor in determining to grant discretionary intervention will be that of the ability of petitioner to make a valuable contributien to the development of a sound record on a safety or environmental issue which is raised by him and appears to be of enough importance to call for Bearci c e r.m. er A r " 5... &.co,.t.R.
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Watts Bar, at 1422. In the instant proceeding, the Licensing Board has I
determined that petitioners have demonstrated that they have standing as 4/
a matter of right ' and therefore need not consider the matter of discre-tionary inteevention.
i As the Commission 5/ and Appeal Board / have recogr&ed, whether late 6
intervention should be allowed is dependent upon a balancing of the factors i
1 1
~4/ The Appeal Board stated in Vireinia Electric and Power Coroany (North Anna Power Station, Units 1 and 2), ALAB-342, 4 NRC 98 (1976):
"... standing as a matter of right has never been regarded as hinging to any extent upon an appraisal of how much or little assistance the would-be intervenor might render in the decisional process. See Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, NRCI-76/4, 420, 421-22 (April 28,1976) relying upon hr.:tC_lub v. Morton, 405 U.S. 727, 739-40 (1972). "
4 NRC 98, athw N'~
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West Valley, CLI-75-4, suora.
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North Anna, ALAB-34,'.
supra, Public Service Company of Indiana, Inc.
(11arble 11111.;uclear Generating Sta* don, Units 1 and 2), ALAB-339, 4..'EC 20 (1976) and St Lu c ie..iL.13 - 42 0. r u m 2300 221
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set forth in 10 CFR,, 2.714.-
The Licensing Board balanced the factors specified in 10 CFR 5 2.714(a) in I
ruling on the untimely petition of CEU and properly concluded that the peti-tion should not be denied bv:ause of untimeliness. (See Order p. 62)'With i
respect to the first factor, the Licensing Board found that CEU had not shown 7/
10 CFR S 2.714(a) provides (in pertinent part);
Montimely filings will not be entertained absent a deter-
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mination by the Commission, the presiding officer or the atomic safety and licensing board designated to rule on the petition and/or request, that the petition and/or re-quest should be granted based upon a balancing of the following factors in addition to these set out in paragraph (d) of this section:
(i)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the petitioner's interest will be protected.
}
(iii) The extent to which the petitioner's partici-pation may reasonably be expected to assist in developing a sound record.
(iv)
The extent to which the petitioner's interest will be represented by existing parties.
(v)
The extent to which the petitioner's partici-pation will broaden the issues or delay the
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" good cause" for the delay in filing its petition.- However, as the Licensing Board recognized,
"... even where an acceptable excuse for failure to I
file is not forthcoming, a licensing board has discre-tion to allow intervention if other considerations warrant it doing so."
[ footnote omitted] Florida Pcwer and Licht Company, suora, ALAB-420, 6 NRC 8, at 11 (1977).
The Licensing Board correctly found that the other factors all weigh in CEU's 9/
favor. (Order at 63). With respect to the second factor,- the Board con-cluded that other means for protecting CEU's interest are not adequate.
The Board noted that although a petitioner could make a limited appearance pursuant to 10 CFR S 2.715(a), such an appearance is not an adequate substitute for participation as a party, citing West Vallev, CLI-75-4 supra, and Duke Power Comoany (Oconee.\\!cGu;re), ALAB-528, 9 NRC (February 26,1979) (Slip op. pp. 6-7).10/ It is manifest that this licensing proceeding provides the best, if not the only, effective means avail-able to CEU to explore its concerns regard rig operation of STP. See North Anna, ALAB-342, supra, at 108. The Staff does not believe that the Licensing f
Board abused its discretion in determining that there were not other means for CEU to protect its interests.
6/
The notice of hearing specified that petitions were to be filed by September 1,1973. CEU's petition was filed February 23, 1979.
9/
The availability 'f the other means whereby the cetitionerN interest will be protect:d.
-10/
Order, pp. 03, 44.
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- The Licensing Board stated that the extent to which CEU "may reasonably be expected to assist in developing a sound record" (the third factor) is difficult to assess. However, CEU's petition asserted that a number of persons in its t
organization have "accreditable expertise in the fields of agriculture, horti-1 culture, marine sciences, and organic chemistry," and have indicated that they will make their services available. As the Licensing Board noted, such expertise might be particularly useful with respect to CEU's claim respecting i
hurricanes (Contention 1). T'te Applicants emphasize in their brief on p.12 I
that CEU merely claims expertise in this regard. However, it is clear that on appellate review of a ruling en an untimely intervention petition:
"... [the Appeal Boardj must generally credit the facts recounted in the papers supporting the petitions to inter-vent..." St. Lucie, ALAB-420, suora, 6 NRC 8, at 13.
Thus, the ability of CEU to contribute to a sound record can only be determined on the basis of its petition, which has not been controverted by opposing affi-davits. St. Lucie, ALAB-420, supra, at 13.
The fourth factor (the extent to which petitioner's interest will be represented by existing parties) also weighs in CEU's favor. As the Licensing Board noted, except with respect to one of it.s contentions, CEU's contentions are different from the contentions of the other parties which the Licensing Board accepted.
i The Board further pointed out that given the nature of an operating license proceedin;;, CEU's interests are not likely to be represented by cther parties.
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.1 t Order, p. 63. Moreover, as the Staff pointed out in its " Response to the Petition for Leave to Intervene Filed by Citizens for Equitable Utilities, Inc.", dated March 12,1979, CEU appears to have a much greater membership residing near the facility than do other parties.
s Finally, although the Licensing Board suggested that CEU's participation will l
broaden the issues, it is not likely that any delay will result which would disrupt the proceeding (Factor 5). No discovery schedule or other schedults have yet been established with respect to a hearing. Further, a hearing in this proceeding is not expected before early 1980. Thus, allowance of this
' late intervention petition would not disrupt a proceeding at such an e rly West Valley, CLI-75-4, supra,1 NRC 273, at 276.
stage.
__ ]
The Licensing Board set out its reasons in the balancing of the factors of 10 CFR i
l s 2.714(a) which it concluded weigh in favor of permitting CEU's participation notwithstanding the untimeliness of its petition. A review of the Licensing Eoard's rea. aning considered above indicates that the Board did not abuse its discretion in blancing these factors.
i 3
3.
The Information Provided At The Request Of The Licensing Board To Supplement A Timelv Filed Petiticn For Leave To Intervene Did Not Render The Petition Untimelv The Applicants asscrt that tne Licensing Board extended repeated opportunities to CCANP to amend its petition for the purpose of establishing representational 2300 225
k l i status based on the residence of members within the geographical zone. This I
i ultimately resu ted in a statement being filed by ?.h. George J. Bunk stating i
j that he was a member of CCANP, that he desired the organization to represent his interests, and that he adopted and supported the statements of interests and contentions in CCisNP's amended petition. However, Applicants argue that Mr. Bunk's statement was not filed until January 14, 1979, well beyond the September 1,1978, deadline for filing petitions stated in the Notice of i
i Opportunity for Hearing, and therefore, the CCANP petition must be con-sidered as untimely.
'The record reflects that, in accordance with the provisions of 10 CFR SS 2.714(a) 11 12/
(3) / and 2.714(b),-
the Licensing Board provided by its Order of Novem-4
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This section provides in part:
(3) Any person who has filed a petition for le tve to intervene or who has been admitted as a party pursuant to this secticn may amend his petition for leave to intervene. A petition may be amended without prior approval of the presiding officer at any time up to fifteen (15) days prior to the holding of the special j
prehearing conference pursuant to S 2.751a, or where no spe-j cial prehearing conference is held, fifteen (15) days prior to the holding of the first prehearing conference. After this time a petition may be amended only with approval of the presiding officer, based on a balancing of the factors specified in para-graph (a)(1) of this secucn.
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This section provides:
(b) Not later than fifteen (15) days prior to the holding of the special prehearing conference pursuant to E 2.751a, or where no special prehearing i.s helci. fifteen (15) days prier to the holding (ECOT: A n Cm...i..m
_ v... _.. :T P! '.
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ber 17,1973, that CCAl?P, as well as the other petitioners, could amend or supplement their petitions. In an amended petition dated December 25, 1978, CCAMP identified three members residing within 15-25 miles of the South Texas Project, one of whom is George J. Bunk (see affidavit dated December 22, 1973, attached to petition of December 25, 1978). At the January ll,1979, pre-hearing conference the Board requested CCANP to su' omit the information that Mr. Bunk provided in his J;nuary 14, 1979, letter (Tr. 88). The infor-mation, provided was merely supplemental information being provided r.t the 1
j request of the Board. Mr. Bunk's statement did not amount to an amendment of the petition which would be prohibited by 10 CFR S 2.714(a)(3) absent a balancing of 10 CFR S 2.714(a)(1) factors. Nonetheless, the Licensing Board did balance the factors and, comparing them to CEU, found them in favor of
.4 CCANP (Order at 19, fn. 3).
As the Appeal Board recognized with regard to requirements of 10 CFR
$ 2.714, there need not be "the inflexible application of procedural require-4 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) of the first prehearing conference, the petitioner shall file a supplement to his petition to intervene which must include a list of the contentions which petiticner seeks to have iitigated in the l
matter, and the bases for each contention set forth with reason-able specificity. A petitioner who fails to file such a supplement which satisfies the recuiremcnts or this paragraph with respect ta at least one centention will not be permitted to carticioate as a party. Additional time for filing the supplement may oc granted based upon a 'tsalancing or tile factors in paragrapa (a)(1) of this secnun 2300 227
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ments with the result that they [ petitioners] are not given a reasonable oppor-f tunity to cure the ciefects of their petitions". Vircinia Electric and Power Comoan'f (North Anna Power Station, Units 1 and 2), ALAB-145, 6 AEC 631, j
634 (1973). This is particularly the case here where CCANP has not been represented by counsel. A pro se petition should not be held to the same standards to which a lawyer might reasonably be expected to adhere. Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 489 (1973).
C.
The Licensing Board Did Not Err In Finding That Certain Petitioners Made A Satisfactory Showing Of Standing As A Matter Of Right The nub of the Applicants' argument on standing as a matter of right is that the 1
Licensing Board conferred standing on CCANP and CEU solelv on the basis of J
a member's geographical proximity to the site of the project, without con-sidering the sufficiency of the interest alleged by that member, his relationship to the organization, the nature of the claimed membership and the " nexus" I
between the organization and those it purports to represent. As discussed below there is no basis to this argument.
1.
CCANP Has Made A Satisfactory Showing Of Standing As Of Richt An organization can establish standing through mmmbers of the organization who have interests wnich may be affected by the outcome cf the proceeding. Public Service Co. c: Inw.a u.1 c'.e :.11. Sucicar Generating Statica, L5its 1 and 2) 2300 228
b, _
ALAB-322, 3 NRC 328, 330 (1976). At the same time, when an organization claims that its standing is based on the interests of its members, the organi-zation must identify specific individual members whose interest might be affected by the proposed action, describe how the interests of each of those members might be'affected and show that each of those members has authorized the organization to act on his behalf. CCANP has satisfied these requirements by identifying the names and addresses of three members living within the
" geographical zone of interest" 3/ and submitting the letter of one of these 1
members, George J. Bunk, authorizing CCANP to represent him.
1 The Applicants assert where an organization seeks standing in a representative a -
capacity for its members and the injury in fact sufficient for standing depends
)
upon a member's geographical proximity to the site of a project, the Licensing i
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Affidavit attached to CCANP's " Petition for Leave to Intervene",
dated December 25, 1978.
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In Section I of Applicants' Brief, " Introduction and Statement of Facts",
the Applicants cite a Licensing Board decision, Washington Public Power Sucolv System (WPPSS Unit 2), LBP-79-7, 9 NRC (1979),
for the proposition that an organization's stanciing cannot be based upon the interests of individuals who became memaers after the peti-l tion for leave to intervene was filed. With regard to the relevance of this case to CCANP's standing, the Staff notes that in the WPPSS pro-ceeding it was established at the prehearing conference that the individuals who lived near the plant were not members of the organiza-tion when the organization filed its petition.
I_d_., a t 3. This is not the case here. The prenearing conference in this case does nct indicate that the indinc'uals identified by CCA';P to carticularine
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stancinc vere not ma:2crs c: * - ti r ' C C/ '!P !. " ' t m t t. :n leave ta n:ta vene. L uc n.r:
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s any basis that would support such a finding.
230] 229
Board must consider in addition to the sufficiency of the interest alleged by that member, his relationship to the organization seeking Intervenor status, both in terms of distance and correspondence of interest. Applicants seek to have an additional requirement considered when a group seeks to obtain standing in a representative capacity for its members, i.e., whether a nexus exists between the member and the group in terms of location and common interes ts. A review of the Commission's ca~se law on standing discloses no such requirement. For an organization to establish its standing through the interests of its members, it need only identify a member wro has the requisite affected personal interest and supply a specific authorization or some other concrete indication that, in fact, the member wishes to have that interest j
represented in the proceeding by the organization. Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535 9 NRC (April 4,1979) (Slip op. pp. 24, 36-38); Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-323, 3 NRC 420, 422-23 (1976); Public Service Comoany of Indiana, Inc. (Marble i
Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 323, 330 (1976); Public Service Electric and Gas Company (Salem Nuclear Generating i
s Station, Units 1 and 2), ALAB-136, 6 AEC 487, 489 (1976); Ducuesne Licht Company (Beaver Valley Power Station, Unit No.1), ALAB-109, 6 AEC 243, 244, n. 2 (1976).
2300 230
1 I -
A nexus of common interest between the member and organization is not required in any of the cases cited above. In fact, the Appeal Board in Allens Creek, ALAB-535, suora, at 36, indicates that when a member autho-i rizes the organization to represent his interests in the proceeding, he clothes it with his personal standing (which then could serve as the footing for the organization's standing to seek intervention if so inclined).
i Notwithstanding that there appeared no requirement to do so, the Licensing Board in this case did consider whether, in view of the differences in loca-tion of the member and the organization, there was a nexus between the licensing action and the claimed injury and between the interests of Mr. Bunk and the primary purposes of the organization (Order at 13-18).
~
j Viith regard to the nexus between the licensing action and claimed injury, the Licensing Board noted that CCANP's supplemental petition states:
"CCANP is concerned that its members may be subject to unnecessary risk of life and/or property from acci-dent or ordinary operation of the South Texas Nuclear i
Project and that the danger of exposure of 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 materials. CCAMP is also concerned that mistakes and delays in construction which have occurred will adversely affect the operating safety of STNP ** *. " (Order, p.13).
Moreover, as the Licensing Board noted, all of CCANP's contentions raise health and safety issues. The Licensing Board also agreed with the Appli-cants that the interests et tne members ai.. ' group seeks to represus (and which confer standing upon the group) must be " germane" to the 2300 231
.I organization's purpose," citing (as do the Applicants in their brief) Hunt v.
Washington State Acole Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441 (1977). (Order at 17). But the Board disagreed with l
the Applicants that intervention by CCANP on behalf of one of its members I
is not germane to CCANP's purposes or that CCANP does not through this member acquire a "real stake" in the proceeding. As the Board pointed out:
"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.'
I Its intervention might well produce that effect. " Order, p. 17.
The Board correctly concluded that, "In any event, we do not view this Board as the j
appropriate forum for determining close questions as to whether an organization is acting strictly in accordance with its charter. Cf. Cleveland Electric I
Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 747-48 (1977). " Order, p.17.
As discribed above, the Licensing Board fully considered and discussed the bases for its conclusion that CCANP had satisfied the standing requirements of 10 CFR S 2.714. It is well established that a Licensing Board's determina-tion as to the interest and standing of a petitioner will be reversed only if it 4
i I
is irrational. No such showing has been made in Applicants' brief and the Licensing Board's finding should be affirmed. Beaver Valley, sunra, at 244; Northern States Power Co. (Prairie Island Nuclear Generating Plant, Unita 1 and 2), AL.G-107. 6 dC 138,193 (1973).
2300 232 an.ep ww
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CEU Has Made A Satisfactory Showing Of Standing As Of Richt The Applicants base their claim that CEU lacks standing of right on the proposi-i tion that CEU's petition was " nebulous with respect to the description of its alleged membership", making it impossible to establish the " nature of the petitioner's right under the act to be made a party to the proceeding," citing 10 CFR S 2.714(d)(1). The Applicants also argue that the Board failed to estab-lish that the organization does in fact have a member or members who will be affected by the proceeding, citing Health Research Grouo v. Kennedy, F.
Supp.
(D.D.C. No. 77-0734, March 13,1979). According to the Appli-
. cants, the Board also failed to establish that the organiza..an and its affected members are joined by a sufficient nexus, citing Hunt v. Washington State Apole Advertising Commission, suora. Finally, the Applicants maintain i.j that "there is nothing to suggest that the organization is, or even has been, concerned with the environmental or health and safety questions associated with central station generating facilities." Some of these claims were also made in the Applicants' response to CEU's petition. The Licensing Board found that CEU's petition established standing as of right. Although CEU's petition used i
various terms to describe its membeis, CEU did identify one member residing within the geographical zone potentially affected by n accidental release of fission products. The thrust of Applicants' argume: ts is a refusal to accept that:
" geographic proximity of a member's esidence to the.a.v i; um...
a e nvug h, s tunt alone :o estab-2300 233
i
\\
4 lish the interests requirements of 10 CFR S 2.714."
I Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, NRC (January 26,1979) (Slip op. at 3).
CEU's petition thus established the nature of its right to be made a party in the proceeding. Applicants' reliance on IIcalth Research Grouo v. Kennedy, suora, is misplaced. That decision denied standing in a representative i
capacity to an organization which had no members (and was precluded by charter from having members) but which sought " standing solely as repre-sentatives of their contributors and supporters." The Licensing Board's holding is consistent with this decision. CEU.has clearly identified at least one member with sufficient interest to confer standing on CEU in a representa-tive capacity.
Contrary to Applicants' claim, the Board has established that the organization and its members are joined by a sufficient " nexus." CEU's petition contains not only the statement of its purposes quoted by the Applicants, but a descrip-tion of its concerns regarding operation of STP, particularly on the part of Mrs. Buchorn. The petition of CEU also describes the activities of its members in the vicinity of STP and contains contentions which describe particular con-cerns it has regarding operation of STP. The interests the organization seeks to protect (the health and safety of its members, particularly that of the member j
identified as residing within the geographic zone of interest) are germane to its purpose, which includes making the energy and utility industries more responsive to the rights and needs of the citizens of Texas. Finally, the petition it.s elf,.n:l ut..... :ne. :.
e :..n..a
. est r.u cu.ucnnen.s cemenstra:-, con:rar 2300 nd4
i, to the Applicants' claim, that the organization has numerous concerns with environmental and safety questions.
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The Applicants also note the fact that the person filing the petition on behalf of CEU and the sole identified member of CEU authorized to represent CEU are one and the same person. However, the Licensing Board stated:
1 j
"as long as the organization possesses an organizational existence - which CEU appears to have, the circumstances that the organization's authorized representative and the single CEU member who authorized CEU to represent her interests are the same person does not operate to deprive CEU of standing in a representative capacity." Order, p. 52.
4 In conclusion, the Staff believes that the Licensing Board established, in accor-
,~
dance with NRC regulations and applicable :ase law, that CEU has standing as a matter of right.
CONCLUSION For the reasons discussed above, Applicants' appeal should be denied.
Sincerely,
% /$
e/j W. I{l /,/F<%
4 I
A j
Henry'J..i.tcGurren Counsel for NRC Staff Dec y/ w_ 0. !L cw Marjorie B. Ulman Counsel fer NRC Staf:
Dated at Bethesda, Marvlanc tius and cay et ty. ~ U 2500 235
~
UNITED STATES OF AMERICA j _
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
HOUSTON LIGHTING AND POWER COMPANY, )
Docket Nos. 50-498
--ET AL.
)
50-499
)
(South Texas Project, Units 1 and 2 )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPLICANTS' BRIEF ON APPEAL FRO.'.1 PREHEARING CONFERENCE RULING UPON INTERVENTION PETITIONS" in the above-captioned proceeding have been served on the following i
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 2nd day of 11ay,1979:
Richard S. Salzman, Chairman
- Dr. Emmeth A. Luebke*
Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory Commission y
' ~
U.S. Nuclear Regulatory Commission Washington, DC 20555
~
Washington, DC 20555 Melbert Schwarz, Jr., Esq.
Dr. John H. Buck, Member
- Baker and Botts Atomic Safety and Licensing Appeal One Shell Plaza Board Houston, TX 77002 U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Lanny Alan Sinkin Citizens Concerned About Nuclear Michael C. Farrar, Esq. Member
- Power Atomic Safety and Licensing Appeal 838 E. Magnolia Board San Antonio, TX 78212 U.S. Nuclear Regulatory Commission Washington, DC. 20555 Mrs. Peggy Buchorn Executive Director Charles Bechhoefer, Esq., Chai rman*
Citizens for Equitable Atomic Safety and Licensing Board Utilities, Inc.
U.S. Nuclear Regulatory Commission Route 1, Box 432 Washington, DC 20555 Brazoria, TX 77422 Dr. James C. Lamb, III Richard W. Lowerre, Esq.
313 Woodhaven Road Assistant Attorney General Chapel Hill, NC 27514 Environmental Protection Division P.O. Box 12545, Capitol Station Austin. TX 73711 2300 236
,I
. ~
N, t
Jack R. Newman, Esq.
Atomic Safety and Licensing Appeal Lowenstein, Newman, Reis,
Panel (5)*.
Axelrad & Toll U.S. Nuclear Regulatory Commission 1025 Connecticut Avenue, N.W.
Washington, DC 20555 Wasnington, DC 20036 Docketing and Service Section (4)*
Atomic Safety and Licensing Board Office of the Secretary Panel
- U.S. Nuclear Regulatory Commissinn U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 in..
l
- f/ ilV[-l'l" I
Qtin h Benry J.' McGurren Counselvfor NRC Staff 2%D 237 4
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