ML19341B009
| ML19341B009 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 01/28/1981 |
| From: | Lessy R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8101300018 | |
| Download: ML19341B009 (10) | |
Text
i January 28, 1981 UNITED STATES OF AERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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UNION 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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RESPONSE OF THE NRC STAFF T0:
(1) PETITION TO INTERVENE FILED BY MS. J. BOTWINICK AND (ii) REQUEST FOR PARTICIPATION OF LOCAL GOVERNMENT REPRESENTATIVE ROBERT G. WRIGHT I.
BACKGROUND On November 14, 1980, the Nuclear Regulatory Comission published in the Federal Register (45 Fed. Reg. 77208) a " Clarification Of Notice Of Receipt Of Application For Facility Operating Licenses:
Consideration Of Issuance Of Facility Operating License and Notice Of Opportunity For Hearing." That notice provided, inter alia, that any person whose interest may be affected by Union Electric Company's ("UE") application for an operating license for Callaway Plant, Unit 1 could submit a petition for leave to intervene in accordance with 10 C.F.R. Part 2 of the Comission's Rules of Practice by December 22, 1980.
l/ The Notice alto provided that persons who previously filed a petition for leave to intervene or request for a hearing in response to the August 26, 1980 Federal Register notice (45 Fed. Reg. 56956) need not refile. As explained in the November 14 Notice, a clarifying notice was required to reflect UE's present intention to apply at this time for an operating license for Callaway Plant, Unit 1 only, in accordance with UE's letter to the NRC of October 1,1980.
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2-On January 13, 1981, the Office of the Secretary of the Commission served upon the parties to this proceeding a petition to intervene and request for a hearing in letter form filed by Ms. Joan Botwinick of Chesterfield, Missouri.
The petition was filed prior to December 22, 1980, the last date for the filing of timely petitions.
For the reasons set forth below, the Staff believes that the petition as filed does not satisfy the requirements of 10 C.F.R. 5 2.714, but that the petition should be denied without prejudice to its timely renewal and resubmission.
The Commission also received on January 22, 1981, a request for participation of a county governmental representative from Mr. R. G. Wright pursuant to 10 C.F.R. 5 2.715(c).
For the reasons set forth in Section IIB of this response, the Staff supports the petition of Mr. Wright subject to the proviso set forth therein.
II.
DISCUSSION A.
Intervention Petition of J. Botwinick Ms. Botwinick's petition states the petitioner's desire "to be an intervenor" in "the licensing process" for Callaway, Unit 1, "to petition against giving a license to operate the plant," and to request a hearing.
The petition consists of one operative sentence, quoted immediately below:
Living downsteam from the plant, being aware that there is already radioactive water being released into the water our fah.'ly drinks, and realizing that no one has determined what " safe" levels of radioactivity are, I believe that allowing this additional emission into my drinking water could be injurious to the health of the St. Louis community and to h;y own family.
. r The Staff estimates that petitioner resides approximately 65-70 miles downstream from the proposed Callaway facility and that St. Louis is approximately an additional 20 miles from the facility.
The adequc cy of the petition must be evaluated in light of the require-ments for intervention established in 10 C.F.R. 5 2.714 of the Commission's Rules of Practice.
Thus, an adequate petition should set forth with particularity:
(1) the interest of the petitioner in the proceeding, (2) how that interest may be a'ffected by the proceeding, including the reasons why petitioner should be permitted to intervene, and (3) the specific aspect or aspects of the subject matter of the proceeding as to which petitioner seeks to intervene.
10 C.F.R. 5 2.714(a)(2).
The regulation further provides that the presiding licensing board in ruling upon petitions to intervene shall consider:
(1) the nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interests in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest.--
With regard to interest and standing to intervene as-of-right, the Commission has established that contemporaneous judicial concepts of standing are to be applied in determining whether a petitioner should t,e admitted as a
_/ 10 C.F.R. 5 2.714(d)(1)-(3).
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party to an NRC proceeding.
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 t
" arguably within the zone of interests" protected by the Atomic Energy Act or the National Environmental Policy Act. _ Pebble Springs, supra, at 4 NRC 613-14.
A petitioner may satisfy these requirements by showing that he resides "within the geographical zone that might be affected by an accidental release of fission products," Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 at n. 6 (1973) or that his base of nonnal everyday activities is in the vicinity of the facility.
Gulf States Utilities Company (River Bend Station, Units 1
_3/ " 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, 4 NRC 610, 613 (1976).
Rather, the asserted hann 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 Nuclear Services, et al. (Barnwell Fuel Receiving and Storage Station). ALAB-328, 3 NRC 402, 422 (1976).
J The Appeal Board has concluded that close aeographical proximity of a member's residence to a facility is sufficient, standing alone, to satisfy the interest requirements of 10 C.F.R. 5 2.714. Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979).
. s 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, ed.,
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 found 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 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).
As to the " interest" of petitioner in this matter, we are left with only the previously quoted sentence from the petition as an indication of whether the " interest" requirements of 10 C.F.R. 5 2.714 have been satisfied.
Thus, the question becomes whether a petitioner who lives approximately 5/ A petitioner who resides at an appreciable distance from a nuclear facility but who frequently engages in substantial business and related
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activities in the vicinity of the facility may establish the requisite interest and standing.
See Portland General Electric Company, et al.
(Trojan Nuclear Plant), Order Concerning Requests for Hearing and Intervention Petitions (unpublished), July 27, 1978 and Portland General Electric Company, et al. (Trojan Nuclear Plant), ALAB-496, 8 NRC 308 (1978).
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l 65-70 miles downstream from the Callaway facility and whose source s
of drinking water is the Missouri River has the requisite " interest." In this proceeding, the Staff concluded that the petition of Kay Drey had established the requisite " interest" on the basis of a combination of assertions made in that petition. That combination of assertions, in the Staff's view, established a sufficient stake of petitioner Drey in the outcome of this proceeding to satisfy the interest requirements of 10 C.F.R. 5 2.714 although the petitioner lived approximately 75 miles downstream from the facility.- I Not only was Mrs. Drey concerned with releases from the Callaway facility into the Missouri River, but it was alleged that the River was the sole supply of her drinking water. Mrs. Drey also asserted that in the past she has tsed the Missouri River for recreation within a few miles of the plant and plans to continue such use in the future.S The instant petition is devoid of such combined assertions.
It merely rests upon the assertion that a petitioner, residing approximately 65 miles from the proposed facility could be injured by plant emissions into the Missouri River, which is petitioner's source of drinkirg water.
Although petitioner has made a general statement relative to possible effects on drinking water, there are no specific statements of real injury, effect or ham to petitioner as a result of operation of Callaway Unit 1.
Accordingly, the Staff believes the instant petition as filed does not satisfy the interest-requirements of_10 C.F.R. 5 2.714. 8_f The Staff recommends that the
-6/ See " Response Of The NRC Staff To Joint Petition To Intervene Filed By Kay Drey," p. 8 (October 15,1980).
-7/ With respect to such recreational use, the Appeal Board has stated:
"It is not immediately obvious that such recreational activity in the general vicinity of the plant perforce would not be affected by the issuance of the sought license amendment." Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 57 (1979).
8/ As -to the " aspects" requirement of 10 C.F.R. 5 2.714, the Staff believes
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it is reasonably clear that the petitioner is concerned with discharges from the plant into the Missouri River and the effect of such discharges on drinking water.
. s petition be denied without prejudice to its timely renewal, as determined by the presiding Licensing Board.S The Staff also recomends that an evaluation of the petition under the discretionary intervention criteria established in Portland General Electric Company, (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976) await the refiling of the petition, inasmuch as the petition, as filed, does not presently contain sufficient information to determine whether or not discretionary intervention should be granted.
B.
Request For Participation of Local Government Representative Robert G. Wright On January 16, 1981, Mr. Robert G. Wright filed a request to participate as a local government representative in this proceeding, pursuant to 10 C.F.R. 5 2.715(c).
Mr. Wright is an " Associate Judge" or "comissioner"b ni Callaway County, Missouri.
Mr. Wright filed his request in response to the November 14, 1980 Federal Register notice, but states that he did not file hir nquest on or before December 22, 1980, as called for in the Federal Register
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As to contentions, under present regulations, contentions of the petitioner need not be included in the petition (though they may be),
but such contentions must be filed no later than fifteen days prior to the first or special prehearing conference considering intervention, 10 C.F.R. 5 2.714(b).
In an operating license proceeding the presiding licensing board should satisfy itself that at least "one good contention" has been filed, because in the absence of such a contention, a hearing is not mandatory.
Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8, 12 (1976).
../ See " Response Of The NRC Staff To Petition To Intervene Filed By Missouri-l0 Ransas Section: American Nuclear Society And To Requests for Participation Of Local Government Representatives...", p. 6 n. 7 (January 12, 1981).
notice,because he was not sworn in until December 31, 1980. Accordingly, the Staff believes Mr. Wright has established good cause for the lateness of his filing.
Because Mr. Wright is not the presiding judge in Callaway County, Y regarding Mr. Wright's the Staff agrees with the position of the Applicant request, i.e., that there is no objection to Mr. Wright's request to participate, assuming Mr. Wright delineates the nature of his representative authority at or before the first prehearing conference.
III.
CONCLUSION For the reasons discussed above, the Staff believes that the petition to intervene filed by Mrs. J. Botwinick should be denied without prejudice to its timely renewal, as determined by the presiding Licensing Board.
The Staff recommends that petitioner be offered an opportunity to amend and refile the petition within twenty-one days after the Board has initially ruled upon the petition.
In addition, for the reasons set forth above, the Staff recomends that the petition for participation of local government representative as filed by Mr. R. G. Wright be granted in accordance with 10 C.F.R. 6 2.715(c), provided Mr. Wright subseqeuntly delineates the precise nature of his representative capacity. E Respectfully submitted.
(u f P
f Roy P. Lessy Counsel for NRC Staff Dated at Bethesda, Maryland, this 28th day of January,1981.
]l/ " Applicant's Answer To the Request For Participation Of Local Government Representative Robert G. Wright At Hearings," p. 2 (January 21,1981).
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In the Staff's answer to the request of Mr. Samuel Birk to participate as a local government representative filed on January 12,1981, Staff indicated it did not know what position Mr. Birk held. The Staff has subsequently learned that Mr. Birk is the Mayor of Morrison, Missouri.
Accordingly, the Staff believes that Mr. Birk has satisfied the require-ments of 10 C.F.R. 5 2.715(c) and supports the request to participate.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0411SS10N BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of UNION 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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CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF THE NRC STAFF T0:
(i) PETITION TO INTERVENE FILED BY MS. J. BOTWINICK AND (ii) REQUEST FOR PARTICIPATION OF LOCAL GOVERNMENT REPRESENTATIVE ROBERT G. WRIGHT" 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 by deposit in the Nuclear Regulatory Conmission internal mail system, this 28th day of January,1981:
James P. Gleason, Esq., Chaiman Barbara Shull Atomic Safety and Licensing Board Lenore Loeb 513 Gilmoure Drive League of Women Voters of Missouri Silver Spring, MD 20901 2138 Woodson Road St. Louis, Missouri 63114 Mr. Glenn 0. Bright
- Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel
- Washington, D.C.
20555 U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Dr. Jerry R. Kline*
Atomic Safety and Licensing Board Docketing and Service Section*
U.S. Nuclear Regulatory Comission Office of the Secretary Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Gerald Charnoff, Esq.
Thomas A. Baxter, Esq.
Atomic Safety and Licensing Shaw, Pittman, Potts & Troworidge Appeal Board
- 1800 M Street, N.W.
U.S. Nuclear Regulatory Comission Washington, D.C.
20036 Washington, D.C.
20555 Mr. John G. Reed Marjorie Reilly Rt. 1 Energy Chairman of the League of Kingdom City, M0 65262 Women Voters of University City, MO 7065 Pershing Avenue Treva J. Hearne University City, M0 63130 Assistant General Counsel for the Missouri Public Service Commission P.O. Box 360 Jefferson City, Missouri 65101
.o. s Dan I. Bolef Rose Levering, Member President, Board of Directors Crawdad Alliance Coalition for the Environment, 7370a Dale Avenue St. Louis Region St. Louis, MO 63117 6267 Delmar Boulevard University City, MO 63130 Kay Drey 515 West Point Avenue Donald Bollinger, Member University City, MO 63130 Missourians for Safe Energy 6267 Delmar Boulevard John G. Reed University City, MO 63130 RFD #1 Kingdom City, MO 65262 Mr. Fred Luekey Presiding Judge, Montgomery County Mr. Earl Brown Rural Route School District Superintendent Rhineland, MO 65069 P.O. Box 9 Kingdom City, MO 65262 Mayor Howard Steffen Chamois, M0 65024 Mr. Samuel J. Birk R.R. #1, Box 243 Professor William H. Miller Morrison, M0 65061 Missouri Kansas Section, American Nuclear Society Mr. Harold Lottman Department of Nuclear Engineering Presiding Judge, 1026 Engineering Building Dasconade County University of Missouri Rte. 1 Columbia, MO 65211 Owensville, MO 65066 Ms. J. Botwinick 336 Portico Court Chesterfield, MO 63017 Robert G. Wright Associate Judge, Eastern L
1 OLE.44.<.)
District Roy P. Lessy County Court, Callaway Counsel for Staff County, Missouri Route #1 Fulton, M0 65251
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