ML19309F691
| ML19309F691 | |
| 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 8004300371 | |
| Download: ML19309F691 (8) | |
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soo 43 oo /28/80 04 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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APPLICATION OF WESTINGHOUSE
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ELECTRIC CORPORATION FOR A
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SPECIAL NUCLEAR MATERIAL LICENSE
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Docket No. 70-2909 FOR THE ALABAMA NUCLEAR FUEL
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FABRICATION PLANT (ANFFP) TO BE LOCATED NEAR PRATTVILLE, ALABAMA NRC STAFF ANSWER TO PETITION FOR LEAVE TO INTERVENE FILED BY DAVID L. ALLRED Background and Introduction j
On March 6,1980, notice of opportunity for hearing with respect to the application of Westinghouse Electric Corporation (" Applicant") for a Special Nuclear Material license in the captioned proceeding was published in the Federal Register (45 Fed. Reg.14724). The notice indicated that the Appli-cant's Environmental Report is to be available for inspection, that a Draft Environmental Impact Statement is to be prepared, and that any person whose interest 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.
Pursuant to the notice of opportunity for l
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l hearing and the provisions of the Commission's Rules of Practice (10 CFR S 2.714), a timely petition for leave to intervene was filed by David L.
Allred on April 7,1980 (hereinafter referred to as "Allred Petition").
For the reasons set forth below, the NRC Staff believes that the petition satisfies the requirements for standing and interest for petitions for leave to intervene, and that the petition adequately identifies the aspects of the proceeding as to which intervention is being sought in accordance with 10 CFR 6 2.714(a)(2). Accordingly, the Staff recommends that the petition for leave to intervene be granted subject to the timely submission by peti-tioner Allred of at least one admissible contention, pursuant to 10 CFR 6 2.714(b).
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 6 2.714. That rule provides, 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 of the petitioner's right to be made a party, (b) the nature and extent of the petitioner's property, financial, or other interest in the proceeding, and (c) the possible effect of any order which may be entered in the proceeding on the petitioner's interest.
10 CFR l
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1 5 2.714(a)(2); Washington Public Power Supply System (WPPSS Nuclear Projects No. 3 and No. 5), LBP-77-16, 5 NRC 650 (1977).
In the balance of this Answer to the Allred Petition, we discuss, first, the requirements of interest and standing, and second, the requirement of identifying specific aspects of the proceeding as to which intervention is sought.
I.
Interest and Standing As a general matter, it is well established that judicial concepts of stand-ing should be applied in detennining whether or not a petitioner is entitled to intervene as of right.
Portland General Electric 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 governs the proceeding. Sierra Club v. Morton, 405 U.S. 727 (1972); Barlow v. Collins, 397 U.S.159 (1970); Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970); Pebble Springs, supra; Virginia Electric and Power Co. (North Anna Power 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 which is " shared in substantially equal measure by all or a large class of citizens." Edlow International Co.,
CLI-76-6,3NRC563,576(1976), quoting Warth v. Seldin, 422 U.S. 490, 499 (1975).
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. 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 geographical zone which might be affected by the nonnal or accidental release of fission products from the facility in question as a result of the proposed licensir.g 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 Lichting and Power Co. (Allens Creek Nuclear Generating Station),
ALAB-535, 9 NRC 377 (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-522, 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 neces-sarily 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, 1.421 n.4 (1977). Similarly, it has been held that the pursuit of everyday activities in the vicinity of a reactor site is suffi-cient 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 13-10, 6 AEC 173 (1973).O When these principles are applied to the facts set forth in the Allred Petition, it becomes apparent that petitioner Allred has demonstrated the interest required by 10 CFR 5 2.714.
In the petition, !?r. Allred :,tates that he resides and works in Montgomery, Alabama; that he owns property in i
Montgomery, Alabama; that he uses Interstate highways in Alabama; and that he recreates in the Alabama River downstream of the proposed plant site (Allred Petition, at 1). Although petitioner fails to define the precise distances from the plant site to his home, his property, his work location, his travel routes, or his recreation areas, it would appear that many (if 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 Fabrication Plant Environmental Report (Dec. 1979), at 2-1). Also, the Environmental Report notes that the plant d
site "is bounded... on the south by the Alabama River" and that its
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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.
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. drainage "will follow original drainage patterns... to the Alabama River"
( I d_. ). The Staff is of the view that these facts are sufficient to establish the requisite standing pursuant to 10 CFR 6 2.714.
II. Aspects of the Proceeding In addition to the " interest" requirement of 10 CFR 6 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 a 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 properly identified is whether they put the Licensing Board and the parties on notice regarding the basic areas in which the petitioner intends to raise contentions, and whether those basic areas are within the scope of the matters which properly may be considered in the proceeding.
In the Allred Petition, petitioner has expressed concern over. (1) the poten-tial " discharge" or " release of radioactive materials into the environment
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l by the proposed facility", (2) the danger of "any accident involving trans-portation of radioactive materials to the facility or of fuel pellets from the facility", (3) the danger of any potential " releases of radioactive materials from waste storage containers which are to be located at the proposed facility", and (4) the danger of "any accident which occurred as a l
result of sabotage, geological upheavals, flooding, tornadoes, or for any other causes" (Allred Petition, at 2).
In the Staff's opinion, petitioner has adequately identified several aspects of the subject matter of the proceeding as to which intervention is desired, including the effect of radioactive discharges upon himself, his family and his property, the ability of the proposed facility to withstand various postulated accident sequences, l
and the safety to himself and his family in the event of an accident involving the transportation of radioactive materials to or from the facility.
For these reasons, the Staff is of the view that petitioner Allred has satisfied the " aspects" requirement set forth in 10 CFR 5 2.714(a)(2).
Conclusion For the foregoing reasons, the NRC Staff respectfully submits that peti-tioner David L. Allred has demonstrated that he has interests which may be j
affected by the outcome of this proceeding, and has adequately identified the aspects'of the proceeding in which he seeks to intervene. Accordingly, the Staff supports the Allred petition for leave to intervene and urges that l
the petiton be granted, subject, of course, to the filing of at least one admissible contention as required by 10 CFR 5 2.714(b).
Respectfully submitted, it)
Sherwin E. Turk Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of April, 1980
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