ML19339C327

Response in Opposition to Coalition for Environ,St Louis Region,Missourians for Safe Energy,Crawdad Alliance & K Drey 801025 Addendum to 800925 Joint Petition to Intervene.No New Info Presented Re Palpable Harm.Certificate of Svc Encl

ML19339C327
Person / Time
Site:	Callaway
Issue date:	11/10/1980
From:	Bernstein D, Charnoff G SHAW, PITTMAN, POTTS & TROWBRIDGE, UNION ELECTRIC CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8011180139
Download: ML19339C327 (7)

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. NSvember 10, 19

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-NUCLEAR REGULATORY COMMISSION  : s

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Tvf3;ggg, BEFORE THE ATOMIC SAFETY A11D LICENSING BO '

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UNION ELECTRIC COMPANY ) Docket Nos. STN 50-483 OL

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

APPLICANT'S ANSWER TO ADDENDUM TO JOINT PETITION TO INTERVENE DATED SEPTEMBER 25, 1980 In response to the NRC's notice of Receipt of Appli-cation for Facility Operating Licenses, Consideration of Issuance of Facility Operating Licenses, and Notice of Opportunity for Hearing, published at 45 Fed. Reg. 56956 (August 26, 1980), the goalition for the Environment, St. Louis Region, Missourians for Safe Energy, Crawdad Alliance and Kay Drey (" joint peti-tieners") filed on September 25, 1980 a " Joint Petition to Intervene." On October 10, 1980, Applicant submitted an answer to that petition. On October 15, the Staff responded to the Joint Petition. Subsequently, on October 25, 1980, joint petitioners filed an " Addendum to Joint Petition to Intervene Dated September 25, 1980." It is joint petitioners' Addendum to which Applicant now responds.

Joint petitioners' Addendum consists of five affidavits, each by a member of one of the organizations included in the Joint Pe' lon. Each affidavit authorizes one of the Joint Petition organizations to represent affiant's interest in the 1

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proceeding, and attests to the proximity of affiant's residence '

to the callaway site. The Addendum apparently was filed as a l

- i f result of a telephone conference between Staff counsel and Kay j Drey, as described in the October 15, 1980 Response of the NRC Staff to Joint Petition to Intervene Filed by Kay Drey.

While Applicant does not concur with the Staff's inter- ,

pretation of the showing necessary to satisfy the standing requirements of 10 C.F.R. S 2.714,I/on the basis of the two

• / Staff is-of the view that in Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2),

ALAB-522, 9 NRC 54, 56 (1979), the Appeal Board held that geo-graphical proximity of a member's residence to a facility is sufficient, standing alone, to satisfy the interest require-ments of 10 C.F.R. S 2.714, and that this showing of interest -

i is concomitant to meeting the standing requirements of 10 C.F.R.

! S 2.714, as described in numerous Commission and Appeal Board i decisions. See, e.g., Portland General Electric Company, et

! al. (Pebble Springs Nuclear Plant, Units 1 and. 2) , CLI-76-77, 4 NRC 610, 613-14 (1976). Applicant disagrees with this inter-pretation of the North Anna decision. While the Appeal Board in North Anna expressly repeats the rule it espoused in Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALNF-183, 7 AEC 222, 224 (1974), that a party's interest in a proceeding may be shown by close proximity (within twenty five miles) of the facility site, in-order for a petitioner to be granted inter-i vention status he also must assert that his " physical and economic well-being might be adversely affected by the operation of the facility." Id. I.e., an intervention petition must allege that the proposed action which is the subject of the proceeding could result in " injury in fact" to the petitioner, Pebble Springs, supra, at 4 NRC 613-614, and is not solely a matter of " abstract concern" or a " mere academic interest." Transnuclear Inc. et al.

(Ten Applications for Low-Enriched Uranium Exports to EuratIon Member Nations), CLI-77-24, 6 NRC 525, 531 (1977). In North Anna, for example, petitioner " expressed concern that the expansion of the capacity of the spent fuel pool might bring  ;

about ground water contamination which, in turn, might affect a well located on her property." 9 NRC 54, 55. Consequently, while the Appeal Board in North Anna did emphasize that "we have never required a petitioner in such geographical proximity to the facility in question to establish, as a precondition to i intervention, that his concerns are well-founded in fact," '

9 NRC at 56, nevertheless , under 10 C.F.R. S 2.714, a petitioner in close proximity to the plant still must assert an injury in.

i fact which will result from the proposed action. Proximity alone is not a sufficient basis for granting intervention.

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! pleadings filed to data by joint petitioners, Applicant is of the view that joint petitioners, with the exception of Kay Drey, f have made a sufficient showing of standing to merit consideration by the Board upon timely filing of at-least one contention which,

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l on its face, raises an issue clearly open to adjudication in a

j .the proceeding. Gulf States Utilities Company (River Bend Sta-i

! tion, Units 1 and 2), aLAB-183, 7 AEC 222, 226 n.10 (1974).

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Joint petitioners' Addendum includes no additional 1

information on Kay Drey, who is petitioning on her own behalf; consequently, Applicant's previously asserted objections remain

! with respect to Ms. Drey's right to intervene. See Applicant's i

i October 10, 1980 Answer to the Joint Petition to Intervene of i

l Coalition for the Environment, St. Louis Region, Missourians for Safe Energy, Crawdad Alliance and Kay Drey at 6-7. Appli-I cant does not concur with the Staff's position, set forth in its Response of October 15, 1980, that Ms. Drey has satisfied i the standing requirements of 10 C.F.R. 5 2.714 because of the i

j " combination" of assertions of interest in the proceeding i

! which she has made, both in the Joint Petition and in a tele-t I phone conference of October 10, 1980 between Ms. Drey and the i NRC Staff counsel. These assertions are: (1) Ms. Drey receives

! her drinking water from the Missouri River which could be 4

polluted by releases from the Callaway facility; (2) Ms. Drey resides in the path of the prevailing winds from the plant, and j thus could be injured from normal or accident releases at the

{ . plant; and (3) in-the past, Ms. Drey has used the Missouri River i

l within a few miles of the site for recreation, and plans to-

,' .  ! continue such use in the future. Response of the NRC Staff to Joint Petition to Intervene Filed by Kay Drey at 7-8. As  ;

the staff pointed out in its Response, in order to show more

! than a mere academic interest in the proceeding, a petitioner must reside (at least a part of the year) or have her base

. of normal activities within the geographical zone that might i be affected by the proceeding. Louisiana Power and Light i Company (Waterford Steam Electric Station, Unit 3) , ALAB-125, j 6 AEC 371, 372 n.6 (1973) ; Gulf States Utilities Company (River Bend Station, Units 1 and 2) , ALAB-183, 7 AEC 222, 226 (1974);

Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-102, 6 AEC 188, 189-90 (1973).

While a petitioner carrying on everyday activities within 25, 30, 40 or even 50 miles of a facility may fit within the geographic zone of interest, Gulf States, supra, 7 AEC at 226; Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 n.4 (1977); Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 dad 2), ALAB-130, 6 AEC 423, 425 (1973) , Ms. Drey, who lives 75 miles from the Callaway site, does not meet this test.

There is no basis for concluding that because Ms. Drey asserts a series of remote interests in the proposed action that she somehow has presented, in the aggregate, a non-remote and legitimate basis for intervention. Cf. Public Citizen v.

Lockheed Aircraft Corporation, 565 F.2d 708 (D.C. Cir. 1977) 4 (claimant's standing denied where based upon three separate grounds, each of which was too speculative to demonstrate i

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, , an " injury in fact") . The concerns raised by Ms. Drey are precisely the sort of abstract concerns which fail to show  ;

a distinct and palpable harm befalling petitioner against which the Commission warned in Transnuclear Inc. et al.

(Ten Applications for Low-Enriched Uranium Exports to Eura-tion Member Nations), CLI-77-24, 6 NRC 525, 531 (1977). Rather, Ms. Drey asserts a "' generalized grievance' shared in substan-tially equal measure by all or a large class of citizens."

Id., citing Warth v. Seldin, 422 U.S. 490,499 (1975). Appli-cant therefore opposes the granting of intervention status to Kay Drey.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE w t. Aws:

Gerald Charnoff Thomas A. Baxter Deborah L. Bernstein Counsel for Applicant 1800 M Street, N.W.

Washington, D.C. 20036 (202) 331-4100 Dated: November 10, 1980

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

)

UNION ELECTRIC COMPANY ) Docket Nos. STN 50-483 OL

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

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "Appli-cant's Answer to Addendum to Joint Petition to Intervene Dated September 25, 1980" were served this 10th day of November, 1980, by deposit in the U.S. mail, first class, postage prepaid, upon the following:

James P. Gleason, Esquire Chairman Atomic Safety and Licensing Board 513 Gilmoure Drive Silver Spring, Maryland 20901 Mr. Glenn O. Bright Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Jerry R. Kline Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Roy P. Lessy, Jr., Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Joseph E. Birk, Esquire Assistant to the General Counsel Union Electric Company P.O. Box 149 St. Louis, Missouri 63166 Ms. Kay Drey 515 West Point Avenue University City, Missouri 63130 W /./3 w A L Deborah L. Bernstein i

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