ML19309E460
| ML19309E460 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 04/02/1980 |
| From: | Bernstein D, Silberg J METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| References | |
| NUDOCS 8004220102 | |
| Download: ML19309E460 (15) | |
Text
April 2, 1980 S
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000;GTED UNITED STATES OF AMERICA 00.yRD APO 7193g p NUCLEAR REGULATORY COMMISSION Cmce Cf th S:f:nt -.
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d In the Matter of
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METROPOLITAN EDISON COMPANY, et al.
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Docket No. 50-320
)
(License Amendment)
(Three Mile Island Nuclear Station
)
Unit No. 2)
)
LICENSEE'S RESPONSE TO REQUEST FOR HEARING AND PETITION FOR LEAVE TO INTERVENE FILED BY WILLIAM A.
LOCHSTET On February 11, 1980, an NRC Order issued amending the Technical Specifications for TMI Unit 2, Facility Operating
- License No. DPR-73.
See 45 Fed. Reg. 11282 et seg. (Feb. 20, 1980).
An opportunity for a hearing on the proposed modifica-tions is provided in the Order.
See id,. at 11283.
By petition dated March 18, 1980, William A.
Lochstet requests a hearing on the proposed Technical Specification amendments, and asserts a right to intervene therein.
Licensee opposes Dr. Lochstet's request.
t Dr. Lochstet's petition is filed pursuant to 10 CFR 2.714, which provides that "[a]ny person whose interest may be affected by a proceeding and who desires to participate as a party shall file a written petition for leave to intervene."
10 CFR 2.714 (a) (1)' (emphasis added).
Because Dr. Lochstet's petition fails to meet the threshold requirement of 10 CFR 2.714, h
8004220
namely, that an intervenor assert an interest which may be affected by a proceeding, Dr. Lochstet lacks the requisite standing to participate as a matter of right in a hearing con-vened to consider the necessity and sufficiency of the proposed modifications to TMI Unit 2's Technical Specifications, and whether these modifications would significantly affect the quality of the human environment.
See Order dated Feb. 11, 1980, 45 Fed. Reg. 11282, 11283 (Feb. 20, 1980).
- Moreover, Petitioner does not fit within the category of individuals who should be permitted to intervene as a matter of discretion
_ because he fails to show "significant ability to contribute on substantial issues of law or fact which will not otherwise be properly raised or presented."
Portland General Electric Com-pany, et al.
(Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 617 (1976).
In fact, as an officer of the Environmental Coalition on Nuclear Power, an organization which
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has also petitioned to intervene in a hearing on the proposed modifications to the Technical Specifications of TMI Unit 2, i
Dr. Lochstet's interests may be protected and otherwise repre-sented.
Dr. Lochstet has also failed to satisfy the requirement forth in 10 CFR 2.714 (a) (2), that a petition for intervention
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set
" set forth with particularlity the specific aspect or aspects of 5 l h.
of the subject matter of the proceeding as to which petitioner wishes to intervene."
A.
Dr. Lochstet Lacks Standing to Intervene in This Proceeding In its recent Memorandum and Order denying request for a hearing in Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI 11 NRC (March 13, 1980), the Commission reviewed the standard applied by it in evaluating the right of an intervenor to participate in an NRC proceeding.
It is settled that the Commission will
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apply judicial concepts of standing to determine hearing and intervention rights under Section 189a of the Atomic Energy Act.
- See, e.g.,
Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2) CLI-76-27, 4 NRC 610 (1976).
Id.
(slip opinion at 2)
Citing to the Portland General Electric decision, the Commission reiterated the two-prong test it established in that case by which the sufficiency of an intervenor's standing to participate in an NRC hearing is assessed:
First, one must allege some injury that has occurred or probably will result from the action involved.
Under this " injury in fact test" a mere academic interest in a matter, without any real impact on the person assert-ing it, will not confer standing.
One must, in addi, tion, allege an interest " arguably with-in the zone of interest" protected by the statute.
Id. citing 4 NRC at 613..
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I The two-prong test for determining a petitioner's right to intervene in an NRC proceeding was further refined by the Appeal Board in Nuclear Engineering Company, Inc.
(Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737 (1978), in the following manner:
l St'anding to intervene hinges neither upon the litigating posture the petitioner would assume if allowed to participate nor on the merits of the case.
Association of Data Pro-cessing Service Organizations v. Camp, 397 U.S.
150, 153 (1970).
Rather, the test is whether a cognizable interest of the petitioner might be adversely affected if the proceeding has one outcome rather than another.
And, to repeat, no such interest is to be presumed.
There must be a concrete demonstration that harm to the petitioner (or those it represents) will or could flow from a result unfavorable to it--whatever that result might be.
7 NRC at 743.
Thus, the recent Commission and Appeal Board decisions concerning the standing requirement of 10 CFR 2.714 emphasize t
that in order to intervene as a matter of right, a petitioner must concretely demonstrate that he will personally experience l
a real, negative, cognizable inpact from the activity in which i
he expresses an interest, and requests a hearing.
The burden l
of proof falls upon the petitioner to establish this impact.
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In his Request for Hearing and Petition for Leave to l
l Intervene, Dr. Lodhstet describes his " property, financial, or l
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other interest in the proceeding," / as follows:
I own real property ar.d reside in State
- College, Pa., which is located approximately 75 miles from TMI-2.
I have legitimate reasons to travel past the plar.t at dis-tances of less than five miles.
I thus have occasion to breath the air in the vi-cinity of the plant.
I also consume food l
grown in the area both on those occasions of visitation to the area and also while residing in State College.
Lochstet Petition at ~1-2.
3 Dr. Lochstet's petition then focuses upon Petitioner's concern with the " cloud upon foodstuffs" grown in the vicinity of TMI which " exists even if the action levels for condemnation are not exceeded."
Id.
No other negative impacts which Dr. Lochstet
_ will personally experience are asserted.
The petition concludes that
[a]ny order which establishes technical specifications for the recovery node of TMI-2 will have an effect on the quantities of radioactive materials emitted to the air, water and soil in the plant vicinity.
In particular, if the technical specifications are inadequate, an unforseen condition may result which could result in unusually large releases.
Id.
- /
Quite properly, Dr. Lochstet cites to 10 CFR 2.714 (d),
which lists the factors which the Commission, the presiding officer or the designated atomic safety and licensing board shall consider in ruling on a petition for leave to inter-Vene.
These factors are:
(1) The nature of the petitioner's right under the Act to be made a party of the proceeding; (2)
The nature and extbnt of the petitioner's property, financial, or other interest in the proceeding; (3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest. !
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'In asserting his right to intervene, Petitioner relies upon his alleged proximity to TMI-2 as a resident of State College, Pennsylvania, his travels within five miles I
of the facility, and his consumption of produce which he asserts, without substantiation, are grown in the vicinity of TMI.
While the Ccmmission and the Appeal Board have declined to " lay down~any inflexible standard" with respect to residence as a basis for standing, Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 190 (1973), the Commission and the Board have re-quired that a petitioner's allegations of personal injury in-crease in specificity and substantiality the farther from the plant a petitioner resides. Dr. Lochstet's allegations of per-sonal injury are at best general and insubstantial; Petitioner asserts no reasons why his concerns with driving near TMI or in eating pro' duce grown in the vicinity of TMI are distinguishable from the interests of the world at large.
In Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1 and 2), LBP-76-10, 3 NRC 209, 213 (1976), the Licensing Board examined assertions of eleven different types of interests alleged by a petitioner living 65 miles from the plant, and concluded that a number of them, considered together, constituted a basis for standing.
However, petitioner in that.
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4 case alleged ownership of a residence only 25 miles from the plant; ownership of other property even closer to the plant; use of shopping, commercial, medical and social facilities with-in 35 miles of the plant; petitioner's employment as an attorney which necessitated attendance at courts within 10 to 40 miles of the plant: and recreational fishing in the lake upon which the plant was situated.
3 NRC at 214.
Furthermore, the Board limited the finding of standing to the particular facts of the case, stressing that it was not "saying that a residence dis-tance of 65 miles from the plant site is in any way automatically
' qualifying.'"
3 NRC at 215.
Dr. Lochstet fails to assert even one compelling interest such as those presented by the petitioner
_ in Tennessee Valley Authority, 3 NRC 209, 213, supra.
See also Dairyland Power Cooperative (LaCross Boiling Water Reactor),
ALAB-497, 8 NRC 312, 313 (1978) (residence more than 75 miles from a facility is insufficent as a basis for standing).
Petitioner's residence in State College, approximately 75 miles from TMI, is thus too geographically remote to consti-tute a basis for standing to intervene in these proceedings, particularly considering Dr. Lochstet's vague assertion of inter-est.
See Public Service Company of Oklahoma, et al.
(Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143, 1145 (1977).
Neither is Petitioner entitled to intervene in these proceedings as a matter of right because he voluntarily, and for unspecified
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l reasons, chooses to travel within five miles of the facility.
i In Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 423-24 (1976), the Appeal Board concluded that it was "a close question" whether petitioners, who were members of a health food store organization whose organic gardens were located "within close proximity" to the transporta-3 tion route of spent fuel to the Barnwell facility, had standing to intervene as a matter of right.
Dr. Lochstet asserts no finan-cial or property rights within 75 miles of TMI.
Similarly, Dr. Lochstet's broad public interest in con-tamination of food grown in the immediate vicinity of TMI, which Petitioner asserts he consumes, is an insufficent basis for per-
_ mitting him to intervene in the proceeding.
In order to satisfy the " injury in fact" test articulated in Portland General Electric Company, 4 NRC 610, 613-14, supra, Petitioner must s?bw m.cre than an interest widely shared by the general public.
Qge Nuclear Engineering Company, Inc., 7 NRC 737, 740, supra.
Rather, a petitioner seeking intervention must identify and particularize a specific injury or injuries that it would or migFt uniquely sustain from the proposed action.
Id. at 741.
Bee:ause Dr. Lochstet's.
petition utterly fails to identify, muchless parti:ularize, any such interest, it should be denied.
B.
Dr. Lochstet Has Not Met the Criteria %stablished For Permittinc Discretionary Intervent.on If a petitioner lacks standing to intervene in a proceeding !
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as a mitter of right, he may be admitted by the Commission, presiding officer, or atomic safety and licensing board con-vened to consider his petition on a discretionary basis.
See Public Service Company of Indiana, 11 NRC (slip opinion at 7-8), supra; Portland General Electric Co.,
4 NRC 610, 614, supra.
In the Portland General Electric decision, the Appeal Board reviewed in detail the factors which shculd be balanced in con-sidering whether to admit an intervenor to an NRC proceeding as a matter of discretion:
(a)
Weighing in favor of allowing intervention--
(1)
The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(2)
The nature and extent of the petitioner's property, financial,' or other interest in the proceeding.
(3)
The possible effect of any order which may be entered in the proceeding on the peti-tioner's interest.
( b)'
Weighing against allowing intervention--
(4)
The availability of other means whereby petitioner's interest will be represented by existing parties.
(5)
The extent to which the petitioner's in-terest will be represented by existing parties.
(6)
The extent to which petitioner's partici-pation will inappropriately broaden or delay I
the proceeding.
4 NRC at 616.
Foremost among these factors is the extent of the contribution to the proceeding which might be expected of the petitioner. See,
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d e.g., !juclear Engineering Co, Inc., 7 NRC 737, 743, supra.
Based on Dr. Lochstet's Request for a Hearing and Petition for Intervention, there is no reason to believe that Petitioner's contribution to these proceedings will significantly assist in the resolution of issues of fact or law, or otherwise contribute to the proceeding.
For example, Petitioner fails to identify any portion of the proposed Technical Specifications for TMI l
Unit 2, the Staff's Safety Evaluation Report accompanying the Technical Specifications, or even the Staff's finding that the proposed modifications do not authorize change in effluent types or total amounts, with which he takes issues.
See Order dated Feb. 11, 1980, 45 Fed. Reg. 11282 et seg. (Feb. 20, 1980).
Cer'
- tainly, Petitioner has not specified any facts which would enable
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the Licensing Board to give him favorable consideration under l
any of the factors listed above, relevant to permitting or denying I
a petition for intervention, as a matter of discretion.
Dr. Lochstet is a member and the Secretary of Environmental Coalition for Nuclear Power (ECNP), an organization that has in-tervened in the TMI-1 restart hearing and has also requested a l
hearing on the proposed modifications to the TMI Unit 2 Technical Specifications. /
See Metropolitan Edison Company (Three Mile
- / Licensee's Answer to Request for Hearing filed by ECNP, dated March 31, 1980 does not take issue with ECNP's standing to inter-vene in a proceeding on modifications to TMI Unit 2's Technical Specifications.
However, Licensee maintains that ECNP's petition to intervene fails to meet the requirements of 10 CFR 2.714 (a) (2)..
l Island Nuclear Station, Unit 1), Docket No. 50-289, Petition of the Environmental Coalition on Nuclear Power for Leave to Inter-l Vene in Evidentiary Hearings on Reopening, Revocation of Operating License, and other Matters, dated June 29, 1979, at pp.
2, 5 and attached Emergency Petition filed by ECNP, dated March 29, 1979, signed by Dr. Lochstet as Secretary of ECNP.
Thus, Petitioner's health and safety interests would be represented to the extent ECNP intervenes in this proceeding.
See Portland General Electric Co.,
4 NRC 610, 616, supra.
Petitioner has not identified any injuries in fact to which he uniquely will be subject which j
cannot be protected and represented by ECNP's participation in i
this proceeding.
In summary, Dr. Lochstet's participation in a hearing j
en proposed modifications to the Technical Specifications of TMI Unit 2 would not be fruitful and may be unnecessary in light of 1
his membership in ECNP.
Therefore discretionary intervention should not be granted.
l f
i C.
Dr. Lochstet's Petition Fails to Identify the Particular Subject Matter in which Petitioner is Interested The Rules of Practice, 10 CFR 2.714 (a) (2), require that a petition for intervention " set forth with particularity.
the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene."
Dr. Lochstet's.
petitign contains only generalized statements of concern about breathing the air and eating the food grown in the vicinity of TMI.
Nowhere in his petition does Dr. Lochstet focus upon what would be the subject matter of a hearing on proposed modifications to TMI Unit 2's Technical Specifications, namely, the particular modifications proposed.
Neither does l
Petitioner address any of the Staff documents supporting the pro-I posed modifications, such as the Safety Evaluation Report, or the Environmental Assessment.
Dr. Lochstet simply states that "if the technical specifications are inadequate, an unforseen condition may result which could result in unusually large l
releases."
This allegation, entirely unsupported, and absolutely l
~ unrelated to any of the particular issues encompassed by the proposed Technical Specification amendment, is insufficient to meet the particularity requirement of 10 CFR 2.714 (a) (2).
D.
Conclusion Based on the foregoing, Licensee submits that Petitioner lacks standing to intervene in a proceeding concerning amendments to TMI Unit 2's Technical Specifications.
Consequently, Dr.
Lochstet's petition for leave to intervene should be denied as a matter of right and as a matter of discretion. /
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At the very least, Petitioner should be consolidated with ECNP, pursuant to 10 CFR 2.715a.
! (
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.In order to determine whether the hearing requested by Dr. Lochstet (and others) is to be held, and if held the scope and scheduling for such a hearing, Licensee respectfully urges thct an Atomic Safety and Licensing Board be promptly empanelled and that the special prehearing conference called for by 10 CFR 2.715a be scheduled at an early date.
Respectfully submitted, i
^
SHAW, PITTMAN, POTTS & TROWBRIDGE i
By MA.hwydd. [.
1 Jay E.
Silberg Deborah L.
Bernstein Counsel for Licensee 1800 M Street, N.W.
}
Washington, D. C.
20036 Telephone: (202) 331-4100 Dated:
April 2, 1980.
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U'!ITED STATES OF AMEPlCA NCCLEAR REGULATORY COMMISSION f
i In the Matter of
)
)
et al. )
Docket No. 50-320
- 'ITROPOLITAN EDISON COMPANY, --
)
(License Amendment)
(Three Mile Island Nuclear
)
Station, Unit No. 2
)
l CERTIFICATE OF SERVICE This is to certify that copies of the foregoing
" Licensee's Response to Request for Hearing and Petition for
_ Leave to Intervene Filed by William,A. Lochstet" were served by deposit in the U.S. mail, first-class postage prepaid, this 2nd day of April, 1980, to all those on the attached Service List.
i Deborah L.
Bernstein Dated:
April 2, 1980.
l N
i f
f d
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION J
I In the Matter of
)
)
METROPOLITAN EDISON COMPANY, et al.
)
Dc:ke No. 50-320
)
(License Amendment)
(Three Mile Island Nuclear
)
i Station, Unit No. 2)
)
1 4
SERVICE LIST 4
i Lawrence J.
Chandler, Esq.
Karin W. Carter, Esq.
Office of the Executive Legal Asst. Attorney General Director Office of Enforcement U.S.
Nuclear Regulatory Commission Department of Environmental Washington, D.C.
20555 Resources i
Harrisburg, Pennsylvania 17120 J.
H. Johnsrud 433 Orland Avenue Docketing and Service Section State College Pennsylvania 16801 Office of the Secretary U.S. Nuclear Regulatory Steven C.
Sholly Cocmission 304 South Market Street Washingten, D. C.
20555 Mechanicsbrug, Pennsylvania 17055 William A.
Lochstet 119 E.
Aaron Drive State College, Pennsylvania 16801 w
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