ML19309F685
| ML19309F685 | |
| Person / Time | |
|---|---|
| Site: | 07002909 |
| Issue date: | 04/28/1980 |
| From: | Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19309F687 | List: |
| References | |
| NUDOCS 8004300366 | |
| Download: ML19309F685 (11) | |
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04/28/80 8004300
%6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of APPLICATION OF WESTINGHOUSE
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ELECTRIC CORPORATION FOR A
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Docket No. 70-2909 LICEt;SE FOR THE ALABAMA
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NUCLEAR FUEL FABRICATION PLANT
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(ANFFP) TO BE LOCATED NEAR
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PRATTVILLE, ALABAMA
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NRC STAFF ANSWER TO PETITIONS FOR LEAVE TO INTERVENE FILED BY ROBERT H. CAMPBELL, ANN TOLEDO, ROBERT E. ELY, JOHN A. JOHNSON, MARILYN F. BUTLER, CHARLES 0. BUTLER, RANDY ARONOV, LINDA G. MOORE, AND SARAH (S. N.) DRAUT Background and Introduction On March 6,1980, notice of opportunity for hearing with respect to the application of Westinghouse Electric Corporation for a Special Nuclear 4
Material license in the captioned proceeding was published in the Federal Register (45 Fed. Reg.14724). The notice indicated that the applicant's Environmental Report is to be available for inspection, that a Draft Environ-mental Impact Statement is to be prepared, and that any person whose inter-est might be affected by the issuance of the proposed license could submit a petition for leave to intervene by April 7, 1980. By subsequent notice published in the Federal Register on April 7,1980, the deadline for the filing of petitions for-leave to intervene was extended to June 14,1980(45 s
Fed. Reg. 23553).
Pursuant to the notice of opportunity for hearing and the provisions of the Commission's Rules of Practice (10 CFR 6 2.714), timely petitions for leave to intervene were filed on April 7,1980, by the follow-ing nine individuals: Robert H. Campbell, Ann Toledo, Robert E. Ely, John A.
Johnson, Marilyn F. Butler, Charles 0. Butler, Randy Aronov, Linda G. Moore, andSarah(S.N.)Draut.E For the reasons set forth below, the NRC Staff is of the view that the petitions filed by the individual intervenors listed above satisfy the standing and interest requirements for petitions for leave to intervene, as set forth in 10 CFR Q 2.714, and that they sufficiently identify the speci-fic aspects of the proceeding as to which the petitioners seek to intervene.
Accordingly, the Staff recommends that the petitions for leave to intervene y
In the letter to the Commission which accompanied these petitions, uritten by Julian McPhillips as counsel for the intervenors and dated April 7, 1980, counsel stated that he wcs enclosing " eleven petitions".
Upon careful review of the petitions which were filed by counsel McPhillips and served upon the NRC StGff, the Staff has determined that it received service only of eight pecit Mns, filed on behalf of the nine individuals listed in the te.c above.
In a telephone conversation an April 25, 1980, counsel MJn1111ps assured the Staff that he timely served upon the Staff a copy of the remaining petition (filed on behalf of Safe Energy Alliance, Central Alabama, and signed by Jack Naftell),
and that an additional copy will be served upon the Staff in the near future. The NRC Staff will file an Answer to that petition upon receipt thereof.
The NRC Staff notes also that certain of the petitioners represented by j
counsel McPhillips filed, along with their petitions, their " Motion for in Extension of Time to File Petitions for Leave to Intervene and Fequest a Hearing," in which they requested a two-month extension of time in which to file their petitions. The Staff notes that the issue raised by this Motion is now moot, in light of the fact that the time fo.- the filing of petitions has been extended to June 14, 1980.
45 Fed. R_eg. 23553.
be granted, subject to the timely submission by petitioners of at least one admissible contention, pursuant to 10 CFR 9 2.714(b). However, in the interest of restricting irrelevant, duplicative and repetitive evidence and argument, the Staff recommends that any order which is entered by the Licensing Board granting petitioners leave to intervene, be conditioned upon the representation of petitioners' common interests by a single spokesman to be duly appointed by petitioners, pursuant to 10 CFR l 2.714(e).
Discussion As indicated in the notice of March 6,1980, a petition for leave to inter-vene must comply with the requirements of 10 CFR 9 2.714. That rule pro-vides, in essence, that the petition must set forth with particularity the interest of the petitioner and demonstrate how that interest may be affected by the results of the proceeding, and must set forth also the specific aspect (s) of the subject matter of the proceeding as to which the petitioner seeks to intervene.
In considering the petition, the Licensing Board should take into account (a) the nature and extent of the petitioner's right to be made a party, (b) the nature and extent of the petitioner's property, financial, or other interest 11 the proceeding, ar.d (c) the possible effect of any order which may be entered in the proceeding on the petitioner's interest.
10 CFR 6 2.714(a)(2); Washingtr n :'ublic Power Supply System (WPPSS Nuclear Projects, No. 3 and No. 5), LB).77-16, 5 NRC 650 (1977).
In the balance of this Answer to the petitions for leave to intervene, we discuss first, the requirement of interest and standing, and second, the
requirement of identifying specific aspects of the proceeding as to which intervention is sought. We then examine the petitions filed by the indi-vidual intervenors in light of these principles and explain why the require-ment that petitioners' common interests be represented by a single spokesman is appropriate.
I.
Interest and Standing As a general matter, it is well established that judicial concepts of standing should be applied in determining whether or not a petitioner is entitled to intervene as of right.
Portland General Elt etric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-26, 4 NRC 610, 613-14 (1976).
These judicial concepts require a showing (a) that the action being challenged could cause injury-in-fact to the person seeking to establish standing, and (b) that the injury is arguably within the zone of interests protected by the statute which govarns the proceeding. Sierra Club v. Morton, 405 U.S. 727 (1972);
Barlow v. Collins, 397 U.S.159 (19701; Association of Data Processing Service Organizations v. Camp, 397 U.S.150 (1970); Peb51e Springs, supra; Virginia Electric and Power Co. (North Anna Pcwer Station, Units 1 and 2), ALAB-342, 4 NRC 98 (1976). The potential injury alleged must be particularized to the individual petitioner and not one wh.'cu is " shared in substantially equal neasure by all or a large class of citizens." Edlow Internattnal Co.,
y CLI-76-6, 3 NRC 563, 576 (1976), quoti1g Warth v. Scidin, 422 U.S. 490, 499 (1975).
Various factors have been held to be sufficient to establish the requisite standing. The Commission has recognized that sufficient interest may be demonstrated by claims that the petitioner lives within the gergraphical zone which might be affected by the normal or accidental release of fission products from the facility in question as a result of the proposed licensing action. Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 n.6 (1973); Northern States Power Co.
(Prairie Island Nuclear Generating Plant, Units 1 and 2), 6 AEC 188 (1973).
In Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station),
ALAB-535,9NRC377(1979), it was held that residence within proximity of a nuclear reactor site clearly falls within this geographical zone and is, by itself, sufficient to establish the requisite interest. Accord, Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-552, 9 NRC 54, 56 (1976). While no outer limits of this geographical zone have been established, it has been held that 50 miles "is not so great as necessarily to have precluded a finding of standing based upon residence."
Tennessee Valley Authority (Watts Bar Nuclear Generating Station, Unit 1),
ALAB-413, 5 NRC 1418, 1421 n.4 (1977). Similarly, it has been held that the pursuit of everyday activities in the vicinity of a reactor site is suffici-ent to establish interest, Gulf States Utilities Co. (River Bend Station, Units 1and2),ALAB-183,7AEC222,226(1974); and use of the area sur-rounding a reactor site for recreational purposes is sufficient, in appro-priate circumstances, to establish the requisite interest.
Philadelphia
Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-73-10, 6AEC173(1973).U The eight petitions for leave to intervene, to which this Answer responds, are remarkably similar in fom and substance; in fact, the petitions consist of nothing more than identical foms in which a few blank spaces have been filled in by each of the individual petitioners, identifying their residence and work locations. The balance of each petition is otherwise identical, asserting, without further explanation, (a) that the petitioner " lives and works in close proximity to the proposed facility;" (b) that the petitioner "would be affected by any release of radiation into the environment;" (c) that the petitioner "would be affected by an accident involving transporta-tion of uranium to the facility or of fuel pellets from the facility;" (d) that the petitioner "would be affected by releases of radiation from waste storage containers which are to be located at the proposed facility;" (e) that the petitioner "would be affected by any accident which occurred as a result of sabotage, geological upheavals, flooding, tornadoes, or for any other causes;" and (f) that the petitioner's " enjoyment of his property may be affected by the proposal." Each of the petitions asserts that leave to intervene should be granted "because the interests of Petitioner may be y
The Staff notes that most of the cases in which this issue is discussed involved the licensing of nuclear reactors; and, in fact, the Staff is not aware of any cases which involve the licensing of nuclear-fuel fabrication plants in which the issue of distance from the facility is discussed. While the nature of the activities conducted at these two different types of facilities is wholly dissimilar, as is the nature of the fission products found at these two types of facilities, for the purpose of considering standing alone, the Staff has adopted the analysis found in the reactor licensing cases.
affected by the results of the proceeding in all the aspects" listed above, and that "[a]ny order which may be entered in the proceedings may affect Petitioner's safety, health and enjoyment of property."
As noted above, the only specific information supplied by the individual petitioners is the name, residence and work location of each petitioner, as follows:
NAME RESIDENCE WORK LOCATION Randy Aronov 1245 Glen Gratton Sunshine Groce:y Montgomery, Ala.
36111 Montgomery Cednty, Ala.
Charles u. Butler P.O. Box 66 Elmore, A~ea.
Elmore, Ala. 36075 Marilyn F. Butler P.O. Box 66 Elmore, Ala.
Elmore, Ala.
36075 Robert H. Campbell P.O. Box 11731 Montgomery, Ala.
Montgomery, Ala. 36116 l
Sarah (S.N.) Draut 2296 Country Club Dr.
2296 Country Club Dr.
Montgomery, Ala. 36106 Montgomery, Ala. 36106 Robert E. Ely 3211 Wilmington Road Alabama State University
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Montgomery, Ala.
36105 Montgomery County, Ala.
John A. Johnson 50 Lamar Avenue Alabama State Dep't.
Selma, Dallas County, of Education Ala. 36701 Montgomery County, Ala.
Linda G. Moore 1801 W. 2nd Street Sunshine Grocery
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Montgomery, Ala. 36106 Montgomery County, Ala.
Ann Toledo 2537 Bay Street Southlawn Elementary Montgomery, Ala. 36107 School - Montgomery County, Ala.
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When the principles discussed supra are applied to these facts, it appears that ths ' petitioners have demonstrated the interest required by 10 CFR Q 2.714. Although none of the petitioners indicate the precise distances from the plant site to their homes or work locations, it would appear that many
f not all) of these locations are in fairly close proximity to the proposed plant site. The Staff notes that Applicant's Environmental Report states that the Prattville plant site "is approximately 12 miles northwest of Montgomery" (Alabama Nuclear Fuel labrication Plant Environmental Report (Dec. 1979), at 2-1).
Also, upon reference to the standard road map of Alabama published by Rand-McNally, the Staff has determined that the pro-posed plant site is approximately 12 miles from Elmore, Alabama, and is approximately 35 miles from Selma, Alabama.
The Staff is of the view that these facts, establishing residence for each of the petitioners within reasonably close proximity of the proposed plant site, are sufficient to establish the requisite standing pursuant to 10 CFR 5 2.714.
II.
Aspects of the Proceeding In addition to the " interest" requirement of 10 CFR 5 2.714, a petition must also set forth with particularity the specific aspect or aspects of the subject matter of the proceeding as to which the petitioner wishes to inter-vene. The only relevant " aspects" of the proceeding are those which fall within the scope of the proceeding.
Although this requirement has not yet been discussed extensively in NRC case law, it is apparent that it is intended to afford some notice to other parties to the proceeding of the issues which are likely to be litigated and, thereby, of the scope of the contested subject matter in the proceeding. The Staff submits that the appropriate test as to whether the " aspects" of the proceeding have been identified properly is whether they put the Licensing Board and the parties on notice regarding the basic areas in which the petitioner intends to raise contentions.
In each of the petitions to which this Answer responds, as noted supra at 6-7, the petitioners have expressed concern over the effects of radiation releases from the proposed plant, and the effects of various postulated accident sequences upon their safety, health, and enjoyment of their property.
In the Staff's opinion, the petitioners have identified several aspects of the subject matter of the proceeding as to which intervention is desired.
For these reasons, the Staff is of the view that the petitioners have satis-fied the " aspects" requirement set forth in 10 CFR 5 2.714(a)(2).
III.
Representation of Common Interests by a Single Spokesman It is apparent upon reading these form petitions that they are the result of a common effort on the part of the petitioners, or as is more probable, that they are the result of one person's effort. No attempt has been made by petitioners to particularize or distinguish their individual concerns from those of the other petitioners, nor has any attempt been made by them to identify their particular property or other interests.
In addition, all of the petitioners are represented by a single attorney, who apparently wit-nessed their execution of the petitions.
, In light of these facts, the NRC Staff is of the view that, if leave to intervene is granted by the Licensing Board, the interests of all the parties would be served by an order which conditions such interventiun upon the appointment by petitioners of a single spokesman who will thereafter represent the petitioners' common interests.
Particularly in circumstances such as are presented by the instant petitioners, the provisions of the Commission's rule for the consolidation of petitioners' interests are applicable.
See 10 CFR 6 2.714(e). The entry of an order under those provisions would have 1
the immeasurably beneficial effect of limiting repetitive, duplicative, and irrelevant evidence and argument, while preserving the rights of the peti-tioners to have their interests fully represented and their concerns properly addressed.
Conclusion For the foregoing reasons, the NRC Staff respectfully submits that petitioners Robert H. Campbell, Ann Toledo, Robert E. Ely, John A. Johnson, Marilyn F.
Butler, Charles 0. Butler, Randy Aronov, Linda G. Moore, and Sarah (S.N.)
Draut have demonstrated that they have interests which may be affected by the outcome of this proceeding, and have adequately identified the aspects of the proceeding as to which they seek to intervene.
Accordingly, the Staff supports their petitions for leave to intervene and urges that the petitions be granted, conditioned upon the representation of the petitioners' common interests by a single spokesman, and subject, of course, to the
.. filing by each petitioner of at least one admissible contention as required by 10 CFR $ 2.714(b).
Respectfully submitted,
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Sherwin E. Turk Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of April,1980 l
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