ML19338F343

Response in Support of Jg Reed Petition to Intervene, Received 800910.Petitioner Satisfied Interest & Aspects Requirements.No Opinion Expressed Re Contentions.Certificate of Svc Encl

ML19338F343
Person / Time
Site:	Callaway
Issue date:	10/16/1980
From:	Lessy R, Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8010200166
Download: ML19338F343 (10)

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'10/16/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD f

In the Matter of h110N ELECTRIC COMPANY

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Docket Nos. STN 50-483

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STN 50-486 (Callaway Plant, Units 1 and 2).

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NRC' STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE OF JOHN G. REED I.

INTRODUCTION l

On August 26, 1980, the Nuclear Regulatory Commission published in the Federal Register (45 Fed. Reg. 56956) notice of opportunity for a hearing on the application for operating licenses for the Callaway Plant, Units 1 and 2.

The notice provided that any person whose interest may be affected could submit a. petition for leave to intervene in accordance with 10 C.F.R. 62.714 L

ne later than September 25, 1980. On September 10, 1980, the_ docketing and j-service branch of the Nuciear Regulatory Commission received a document entitled

'.' Petition" filed by John G. Reed -(Petitioner).

In a document entitled " Response -

of the NRC Staff to ~ Petition' Filed by John G. Reed," dated September 25, 1980, the-Staff recomended denial of the. petition without prejudice for the reason L

that it fa.iled to -satisfy-the requirements of 10-C.F.R.- 52.714. On October 1, 1980 the docketing and service branch of the. Nuclear Regulatory Commission--

- received an untitled document, dated September 22, 1980, filed by John G. Reed

-requesting leave to intervene in the above proceeding (hereinafter referred Rol o tors ' ? $*

. to as " Petition). This document ap':aars 'to be timely filed since Mr. Reed certified that he filed it on September 22, 1980.

~It is argued below that the deficiencies noted by the Staff in its September 25, 1980 responses ave been corrected and that the Petition identifies the h

aspect of the proceeding as to which. the Petitioner wishes to intervene.

Furthermore, it is argued that the Petition satisfies the " interest" require-ments of 10 C.F.R. 62.714. This response is limited to the issues of whether the Petitioner has satisfied the requirements of 10 C.F.R. 92.714 with regard to " interest" and the identifica.; ion of aspects of the proceeding as to which intervention is sought.S II.

ARGUMENT A.

Requirements for Intervention The provisions of 10 C.F.R. 52.714 require that a petition to intervene set

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forth with particularity the interest of a petitioner in the proceeding, the 3The Staff in its response (at 'pp. 2-4). argued that Petitioner failed to

. satisfy the " interest":and " aspect"~ requirements-of 10 C.F.R. 52.714.

SThe Staff does not at this' time take any position with regard to-the

! admissibility of concerns of the Petitioner'as contentions in this pro-ceed_ing. Under 10 C.F.R. -52.714(b),-the Petitioner has the opportunity

-to set forth specific contentions and the bases for:them. in' a ~ supplement

'to'his' Petition to be filed at least 15 days prior to the first prehearing conference'. :. The' Staff's view:of the admissibi.lity of contentions ~will be.-

. set forth in~ response to.such supplement to the Petition for Leave to

' Intervene. filed pursuant to Section '2.714(b).

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' manner in which that interest may be affected by the proceeding, and the aspect or aspects of-the proceeding as to which intervention is sought.

With regard to interest and standing to intervene as-of-right, the Commission has established that contempora:ieous judicial concepts of standing are to be applied in determining whether.a petitioner should be admitted as a party to an NRC procee' ding.. Portland General Electric Company, et al. (Pebble Springs-Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976); Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2),

ALAB-397, 5 NRC 1143,1144-45 (1977). Consequently, a petitioner must show that the proposed action which is the subject of the proceeding could result in " injury in fact"S o an interest which is " arguably within the zone of t

interest" protected by the Atomic Energy Act or the National Environmental Policy Act-Pebble Springs at 4 NRC 613-14.

A petitioner may satisfy these requirements by showing that he or she resides "within the geographical zone that might be affected Lv an accidental release of fission products," Louisiana Power and Light Company (Waterford Steam 3f" Abstract concerns" or a " mere ~ academic interest" in the matter which are not accompanied by some'real' impact on a petitioner will not confer standing.

Transnuclear, Inc., et al. (Ten Applications for Low'-Enriched Uranium Exports to Euration Member Nations), CLI-77-24,.6 NRC 525, 531 (1977); Portland General Electric Company- (Pebble Springs-Nuclear Plant, Units 1 and 2),

'CLI-76-27,J4 NRC.610, 613 (1976)._ Rather the asserted harm must have some particular effect on.a petitioner, Transnuclear,. supra ~, and a petitioner must

. have some direct' stake in' the outcome of the proceeding. See Allied-General 1

Nuclear Services, et-al.. (Barnwell, Fuel Receiving and Storage Station),

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' ALAB-328, 3 NRC 420,.422 (1976)..

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- Electric. Station, Unit 3), ALAB-125, 6 AEC 071, 372 at n. 6 (1973)8 or that his or her base of normal everyday activities is in the vicinity of the facility.. Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 (1974).S Similarly, the requisite interest can be established by showing that the petitioner' resides in the vicinity of the facility for at least a part of the year. See, e_.g., Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-102, 6 AEC 188,189-90 (1973). While no specific distance from a nuclear power plant has evolved from Commission decisions to define the outer boundary of the

" geographic zone of interest," the Appeal Board has foand that a ' licensing board "cannot be tarred with the brush of irrationality" for presuming that someone who carries on everyday activities within 25 miles of the plant has I

an interest. Gulf States Utilities Company (River Bend Station, Units 1 and 2),

ALAB-183, 7 AEC 222, 226 (1974).

Further, the Appeal Board has indicated that 50 miles "is not so great as necessarily to have precluded a finding of standing based on residence." Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1422 n. 4 (1977).

- SThe Appeal Board hs recently held that geographical proximity of a member's

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residence to a fatility is sufficient, standing alone, to satisfy the interest requirements of.10- C.F.R. 62.714.

Virginia Electric and Power Company (North Anna Nuclear Power Station,' Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979).

S ' petitioner who resides at an appreciable distance from a nuclear-facility A

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~but who~ frequently engages in substanti.1 business and related activities in the. vicinity of the facility may establish the requisite interest and

-standing. See Portland General Electric Company, et al. (Trojan Nuclear i

Plant), Order Concerning Requests for Hearing and Intervention-Petitions (unpublished), July. 27,.1978 and Portland General Electric Company, et al.

i (Trojan: Nuclear Plant),' ALAB-496, 8-NRC 308 (1978).

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-;As noted above,f a petition. to intervene, in addition to setting-forth a petitioner's interest and the potential-effet:ts of-the proposed action on that interest, must identify the specific aspects of the proceeding on which inter-vention is sought. The only.rclevant aspects of the proceeding are those which fall _within the scope of the proceeding.S While there is little guidance as to the meaning 'of " aspect" as that tenn is used in 10 C.F.R. 52.714, it appears -

to be broader-than a contention but' narrower than a general reference to the NRC's operating statutes.

Consumers Power Company (Midland Plant, Units 1 and 2),

LBP-78-27, 8 NRC 275, 278 (1978).

In determining whether a petitioner has met the ",

acts" requirement of Section 2.714, it is not appropriat's to apply the same standards-as those applied to detennine the admissibility of contentions.

J d_. Thus, it appears that a petitioner may satisfy the " aspects" requirement by identifying, generally, concerns that might stem from the licensing action which are within the' scope of matters that may be considered,in the proceeding.

The Petitioner's petition for leave to intervene should be examined in light of the foregoing principles.

B.

Petitioner's' Interest and' Standing The Petitioner lives in Kingdom City, Missouri- (Petition, at 2) which is approxima'tely.10 miles from the site of-the Callaway Plant. Furthermore,

-the. Petitioner has expressed concerns with public safety in the event of a S ee,:e.g.,' Metropolitan Edison Company (Three Mile Island-Nuclear Station, S

Unit T),- Licensing Board " Memorandum and: 0rder Ruling on Petitions and Setting

'Special_- Prehearing Conferences"l(September 21, 1979)_(restart), slip op at 6.

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nuclear incident. Although the Staff believes that Petitioner has not stated his interes*. with particular clarity and precision,3 we believe that the Petition is sufficient, in light of the previously discussed principles with

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regard to interest and standing, to establish-that:

(1) ' Petitioner might suffer injury-in-fact from the proposed licensing action (since he lives within geographical proximity to the Callaway Plant); and (2) The interest'of the Petitioner in protecting the public safety (including his own safety) from operation of the Callaway Plant is within the zone of interests protected by the Atomic Energy

.Act.

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Accordingly, the Staff believes that the Petitioner has satisfied the " interest" i

requirements of 10 C.F.R. 52.714.

C.

Aspects of the Proceeding as to Which Petitioner Seeks to Intervene l

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The Petitioner sets forth a single " aspect" of the Callaway Plant operation-l that concerns:him:

that there will be insufficient consideration given to l

'"'off-site' ~ funding of planning,' operations, maintenance and the actual l-1 Jability of local government to ' respond to nuclear incidents" (Petition, at 2).

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- / ro s_e petitioners are held to less rigid standards of clarity and precision 7

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. ith regard to petitions for. intervention. Public Service Electric and w

Gas Co.-(Salem Nuclear Generating Station, Units 1 and 2), ALAB-136,

'6AEC.487,489_(197.3).

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- Although this " aspect" is very generally stated, it is adequate to point out the aspect of_ the proceeding as to which the Petitioner wishes to intervene and raises'a matter within the scope of the proceedings. S/ Accordingly, it is the Staff's position that the Petitioner has satisfied the " aspects" requirement of 10 C.F.R.12.714.

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CONCLUSION I

For the reasons set forth above, the Staff concludes that the Petitioner has l

satisfied the " interest" and " aspects" requirements of 10 C.F.R. 52.714 and should be adnitted as a party to the proceeding if he ultimately satisfies the contention requirements' of 10 C.F.R. 62.714(b). E/

1 As we stated above, the Staff is not, at this time,-taking a position on any of the expressed aspects or concerns as contentions. Such positions will be taken in answer.to'a supplement to the present petition setting forth specific

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E/ e Nuclear Regulatory Commission has indicated in its Statement of Con-Th siderations on Emergency Planning (amendments to Parts 50 and 70) that the NRC assessment 'of whether the Applicant's. emergency-plans and State and local emergency plans are adequate. and capable of being implemented may be the.

subject oficontention in 'an operating license hearing (45 Fed. Reg. 55402, August-19,-1980).

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10 C.F.R. 52.714(b)'provides.for.the formulation of._ contentions up to 15 days before a special prehearing conference. - The aspects of' the proceeding on which int'ervention. is sought have been identified. _The Petitioner ~should be re section in proper. form. quired to frame contentions in accord with this I-E' s

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A contentions and the bases for those contentinns. This supplement may be filed

- up to 15 days before any special prehearing conference.E Respectfully submitted, Roy P..Lessy Counsel for NRC Staff d G% h Henry 'J. McGurren Counsel for NRC Staff Dated at Bethesda, Maryland

'this 16th day of October, 1980'

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N10C.F.R.52.714(b).

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UNITED STATES OF AttERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of.

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UNION ELECTRIC C0tiPANY

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Docket Nos. STN 50-483

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STN 50-486 (Callaway Plant, Units 1 and 2)'

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CERTIFICATE OF SERVICE

- I hereby certify that copies of "NRC STAFF. RESPONSE TO PETITION FOR LEAVE TO INTER >ENE 0F JOHN G. REED" in the above-captioned proceeding have been served on the following by deposit in.the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commissi;n's internal. mail system, this 16th day of October,1980:

James P. ~ Gleason, Esq., Chai rman.

Atomic' Safety and Licensing Atomic Safety and Licensing Board Board Panel

• 513 Gilmoure. Drive

. U.S. Nuclear Regulatory Commission Silver Spring, MD 20901 Washington, DC 20555

-Gerald Charnoff. Esq.

Atomic $0fety and Licensing Thomas A. Baxter, Esq.

Appeal t'oard

• Shaw, Pittman, Potts & Trowbridge U.S. Nuclear Regulatory Commission 1000 M Street,'N.W.

Washington, DC 20555-

. Washington, DC 20036 Docketing and Service Section

• Mr. John G. Reed Office of the ~ Secretary Rt.1:

U.S. Nuclear Regulatory Commission Kingdom. Ci ty, M0 65262 Washington, DC 20555 Treva.J. Hoarne Marjorie Reilly~

Assistant General. Counsel for the Energy Chairman of~the League ~of Missouri Public. Service Connission Women Voters of: University City, MC P.O. bot 360-7065 Pershing Avenue

'Jeffer. son: City, Missouri 65101-University City, MO 63130 Barbara Shell-

-Lenore Loeb Lleague of Women Voters of-

' Missouri l2138 Woodson Road

'St. : LouisrMissouri -63114 Y

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2-L Dan I. Bolef'.

Rose Levering, Member l

.- President, Soard of Directors Crawdad Alliance.

Coalition for.the: Environment, 7370a Dale Avenue l

St.' Louis-Region St. Louis, MO 63117 6267 Delmar' Boulevard L

University City, MO 63130 Kay Drey-515 West Point Avenue

Donald Bollinger, Member University City, M0 63130 Missourians. for-Safe Energy.

6267-Delmar' Boulevard.

John G. Reed University City, M0. 63130 RFD #1 Kingdom City, M0 65262 l-

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EdwinJ.Rejs Assistant 4hief Hearing Counsel p..

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