ML19343D015
| ML19343D015 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 04/07/1981 |
| From: | Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8104090062 | |
| Download: ML19343D015 (9) | |
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5-D u.s. m-w._ J UNITED STATES OF AMERICA ri NUCLEAR. REGULATORY C0fetISSION
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- BEFORE THE AT0!!IC SAFETY AND LICENSING BOARD @
/s In the flatter of
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CLEVELAND ELECTRIC ILLUMINATING
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. Docket Nos. 50-440-C0ttPANY, et al.
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50-441
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(Perry Nuclear Power Plant,
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Units 1 and 2)
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'NRC STAFF ANSWER TO THE PETITION OF T0D J. KENNEY TO INTERVENE On February 13, 1981, the Nuclear Regulatory Commissioni(Comission) published in the Federal Register-(46 Fed. Reg. 12372) a-notice of opportunity for.a hearing on the applicationIfor an ' operating. license for the Perry Nuclear Power P.lant, Units 'I and 2.
On ;1 arch 16,-1931 Tod J.
Kenney (Petitioner) filed a timely petition for leave to intervene.
To establish. standing, the provisions of 10'C.F.R. 92.714(a)(2) require that a petitioner to..an NRC proceeding shall:
1.
Set forth with particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to intervene; and 2.
Identify the specific aspect or aspects of the subject matter of the proceeding, as to which petitioner wishes to intervene.
The petition is signed by Tod J. Kenney as an.individ"al.
It-states that he lives in Depper Pike, Ohio, approximately 30 miles from -
the facility; that he is a customer of Applicant; that he will be affected by NRC actions; and, that he derives recreation,. aesthetic, economic and personal relationships from living in Pepper Pike. He
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. further asserts that he wants considered such matters as Calvert Cliffs
- v. AEC, alternatives to Perry, an evaluation of emergency-plans, need for power, costs on his electric bill and that any operating license be reviewed ab_ initio every five years.
In determining whether the requirements of 10 C.F.R. Q2.714 have been met by a particular petitioner, thus allowing him to intervene as a matter of right in a proceeding, the Commission has ruled that judicial.
concepts of standing should be applied in NRC licensing proceedings.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 &
2), CLI-76-27, 4 NRC 610 (1976). These concepts require a showing that the action being challenged could cause injury in fact to the person seeking standing, and that such injury is arguably within the " zone of interest," protected by the statute governing the proceeding.
Id. at page 613. See also: Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 N.R.C. 1143, 1144-45 (1977);-
Nuclear Engineering Co. (Sheffield, Ill. Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 N.R.C. 737, 739-40 (1978).
The Appeal Board has ruled that residence in near proximity to the facility is an interest sufficient to meet the 92.714 interest requirement.
Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979). Though no firm outer boundary for this geographic " zone of interest" has been determined, distances of up to 50 miles have been accepted by the Appeal Board as conferring standing upon particular petitioners.
See, e.g.,
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2),
ALAB-413, 5 NRC 1418, 1421, n. 4 (1977). Cf. Virginia Electric & Power
s
- Company (North Anna Power Station, Units 1 and 2), ALAB-146,' 6 AEC 631, 633-634 (1973); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 190, 193, reconsid. den., ALAB-110, 6 AEC -247, aff'd, CLI-73-12, 6 AEC 241 (1973).
In this instant matter the allegation of living within 30 miles of the facility presumptively provides the geographical-nexus required for standing to intervene provided that the petitioner properly identifies with reasonably specificity what aspect of the operation of Perry will, or could, adversely affect him and provides a basis for such assertion.
Pebble Springs, cited su,ra, 4 NRC at 613 and Houston Lighting and Power Company (Allens Creek Nuclear Power Generating Station, Unit 1),
ALAB-535, 9 NRC 377 at 393 (1979) both require that a petitioner must identify with specificity how the proceedings may adversely affect him:
in judicial terms, they require identity of the possibly injury and a demonstration as to how the injury could result from the operation of Perry. This requirement is not fulfilled in Mr. Xenney's petition.
In the first full paragraph of his petition, tir. Kenney asserts interest as a ratepayer.
In Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122 at 128 (1977), the Appeal Board has held that the interest of a ratepayer is not within the zone of interests to be protected in an NRC license proceeding and that i
this interest, therefore, could not by itself support intervention. See also: Tennessee Valley Authority (Watts Bar Nuclear Plant, Units'1 & 2),
ALAB-413, 5 NRC 1418, 1420-21 (1977); Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3), ALAB-376, 5 NRC 426 (1977); Public Service
. Co. of Oklahoma et al. (Black Fox fluclear Power Station,. Units 1 & 2),
LBP-77-17, 5 i4RC 657 (1977). flor is such interest within the zone si interests protected.by the fiational Environmental Policy Act. - Portland General Electric Company (Pebble Springs fluclear Plant, Units 1 & 2),
ALAB-333, 3 T4RC 804 (1976).
In addition, fir. Kenney does not make any effort to specify what aspects the operation of Perry could adversely invade any rights he may.
have. -In this absence of identifying the possible invasion of an interest or right the petition should be denied. See Houston Lightina and Power Company (Allens Creek fluclear Generating Station, Unit.1),,
ALAB-535, 9 f4RC 377 at 393 (1979).
Although the petitioner lacks standing to intervene as of right under judicial standing concepts and f4RC precedent, he may nevertheless i
be admitted to the proceeding in the Licensing' Board's discretion.
In determining whether discretionary intervention should be permitted, the Commission has indicated that the Licensing Board should be guided by the follcwing factors, among others:
a)
Weighing in favor of allowing intervention --
- 1) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
- 2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding.
- 3) The possible effect of any order which may be entered.in the proceeding on the petitioner's interest.
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b)
Weighing against allowing intervention --
- 4) - The availability af other means whereby petitioner's
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interest will be~ protected.
- 5) The extent to which the petitioner's interest will be represented by existing parties.
- 6) The extent to which petitioner's participation will inappropriately broaden or delay jthe proceeding.
Portland General Electric Co. et al. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976).
The pricary factor to be considered is the significance of 'tne,
contribution that a petitioner aight make. Pebble Springs supra. Thus, foremost among the factors listed above is whether the intervention would likely produce a valuable contribution to ths NRC's.decisianmaking p ecess on a significant safety or environnental issue appropriately addressed in the proceeding in question. Tennessee Valley Authority
'(Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418 (1977).
In this instant natter there is.no ' showing-in the petition of any expertise or experience which fir. Kenney could bring to a hearing which would nake a substantial contribution to the safety and. environmental considerations at issue at the operating ifcense stage.
fir. Kenney alleges he derives recreational, aesthetic, economic and personal relationships from living in the area.
This undoubtedly is true: true as it is of any person in relation to the area in which-he leves. There is no allegation by fir. Kenney that these matters will be, or could be, adversely affected by the operation of Perry, nor does he allege what aspect of the operation of Perry could adversely affect these
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6-itemized aspects of life; nor does he set forth any basis for being adversely effected.
In addition ((a)(3) above)~he does not set forth how any Commission order could effect his interests. Since his interests and possible injuries are not defined, it is not feasible to address (b)(4) and (5) above. At this stage it is not clear whether there will even be a hearing, thus it is not meaningful _ to try to speculate'as to whether Mr. Kenney's participation would unduly broaden or delay the operating license application. Certainly the najor concern involved in discretionary intervention - his ability to nake a contribution - weighs heavily against granting the petition to intervene.
Sunnary of Staff Conclusions
- 1) Mr. Kenney has not demonstrated interest and standing to permit his intervention.
- 2) Mr. Kenney's principal stated interest is as a consumer of electricity and this does not permit intervention.
- 3) Mr. Kenney does not demonstrate that his participation in the licensing procedure would make a substantial contribution to the record.
- 4) Mr. Kenney has not identified any aspect of the operation of Perry which could involve adversely any of his interests.
5)
Intervention by Mr. Kenney is not warranted as of right or as a matter within the discretion of the Board.
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- Staff Recomendation The Staff recoamends that the petition of Tod J. Kenney dated !! arch 16, 1931 be denied.
Respectfui.
submitted, g
Charles A. Barth Counsel for fiRC Staff Dated at Bethesda,ftaryland this 7th day of April,1981.
I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COM".ISS10N DEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of
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CLEVELAND ELECTRIC ILLUMINATING
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Docket Nos. 50-440 COMPANY, et a_l_.
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50-441 (Perry Nuclear Power Plant,
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Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF ANSWER TO THE PETITION OF.T00 J.
KENNEY TO INTERVENE in the above-captioned proceeding have been served 'on the follcaing by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comaission's internal mail systen, this 7th day of April, 1981.
- Peter B. Bloch, Chairman Donald T. Ezzone, Esq.
Atomic Safety and Licensing Board Assistant Prosecuting Attorney U.S. Nuclear Regulatory Coanission 105 Mai '5treet Washington, D. C.
20555 Lake Cou-ty Administration Center Painesville, Ohio 44077
- Dr. Jerry R. Kline Atornic Safety and i icensing Board Tod J. Kenney U.S. Nuclear Regulatory Commission 31880 Creekside Drive Washington, D. C.
20555 Pepper Pike, Ohio 44124
- Mr. Frederick J. Shon Daniel D. Wilt Ator.;ic Safety and Licensing Board Wegean, Hesiler & Vanderberg U.S. Nuclear Regulatory Commission 7301 Chippewa Road, Suite 102 Washington, D. C.
20555 Brecksville, Ohio 44141 Jay Silberg, Esq.
Jeff Alexander Shaw, Pittman, Palts, Trowbridge & Madden 920 Wilmington Ave.
1800 M Street, N.W.
Dayton, Ohio 45420 Washington, D. C.
20036 Terry Lodge, Esq.
Attorney for Applicants 915 Spitzer 3uilding Toledo, OH 43604
_2-Atcaic Safety and Licensir,g Board Panel U.S. Iluclear Regulatory Comnission Uashington, D. C.
20555 Atomic Safety and Licensing Appeal Coard Panel U.S. l:uclear Regulatory Connission Washington, D. C.
20555 Docketing and Service Section Of fice of the Secretary U.S. !;uclear Regulatory Comission Washington, D. C.
20555 c/4 Charles A. Barth Counsel for fiRC Staff