ML19347B813

Response in Opposition to Coalition for Environ,St Louis Region,Missourians for Safe Energy,Crawdad Alliance & K Drey 800925 Joint Petition to Intervene.Neither Standing Nor Interest Shown.Certificate of Svc Encl

ML19347B813
Person / Time
Site:	Callaway
Issue date:	10/10/1980
From:	Baxter T, Charnoff G SHAW, PITTMAN, POTTS & TROWBRIDGE, UNION ELECTRIC CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8010160025
Download: ML19347B813 (10)

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

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APPLICANT'S ANSWER TO THE JOINT PETITION TO INTERVENE OF COALITION FOR THE ENVIRONMENT, ST. LOUIS REGION, MISSOURIANS FOR SAFE ENERGY, CRAWDAD ALLIANCE AND KAY DREY In response to the NRC's notice of Receipt of Application 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 Coaliticn for the Environment, St. Louis Region, Missourians for Sa fe Energy, Crawdad Alliance and Kay Drey filed on September 25, 1980, a l " Joint Petition to Intervene." Pursuant to 10 C.F.R. S 2.714(c),

Applicant submits this answer to the joint petition.

l The requirements for petitions for leave to intervene 1

are set forth at 10 C.F.R. S 2.714, and were described in the above-cited notice. One requirement is that the petition shall set forth with particularity the interest of the petitioner in the proceeding and how that interest may be affected by the re-sults of the proceeding, including the reasons why petitioner should be permitted to intervene, with particular reference to the factors in S 2. 714 (d) . 10 C.F.R. S 2. 714 (a) (2) . Those U o10160 Q $

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l factors are: (1) the nature of the petitioner's right under the i

Act to be made a party to the proceeding; (2) the nature and

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! extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest.

10 C.F.R. S 2.714(d).

t j These requirements collectively are referred to as those i

I necessary to demonstrate the " interest" or " standing" of persons 1/

!' seeking leave to intervene in Commission proceedings.~ It is i 1 *

settled that the Commission will apply judicial concepts of i

! standing to determine hearing and intervention rights under i

i Section 189a of the Atomic Energy Act. Public Service Company i

i of Indiana (Marble Hill Nuclear Generating Station, Units 1 and j

j 2), CLI-80-10, 11 N.R.C. 438, 439 (1980). To acquire standing i

to request a hearing and to intervene in an NRC proceeding, a petitioner must allege some injury in fact, i.e., a cognizable inte rest , arguably within the zone of interests protected by 4

i a relevant statute, which might be adversely affected if the l proceeding has one outcome rather than another. Id.; Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 N.R.C. 610, 613 (1976) ; Nuclear Encineerina i

i Company (Sheffield Low-level Radioactive Waste Disposal Site),

ALAB-473, 7 N.R.C. 737, 743 (1978).

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4 1/ " Standing" is legal shorthand for the right to take part in a given case. . Houston Lighting and Power Company, et al. (South l Texas Project, Units 1 and 2), ALA3-549, 9 N.R.C. 644, 646 (1979).

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Standing of Group Petitioners Three groups have joined in the subject intervention petition. The Coalition for the Environment, St. Louis Region

("the Coalition"), which,the Joint Petition asserts, represents its members in any action or project which represents harm or potential harm to the environment, has its principal office in University City, Missouri. The Joint Petition asserts that among the Coalition's individual members are persons residing less than 50 miles from the Callaway Plant site. Joint Petition at 1, 2.

Missourians for Safe Energy ("MSE") is an organization whose purpose is to oppose the development of nuclear energy in Missot ri and to promote conservation of energy and alternative sources of energy. The Joint Petition asserts that many of MSE's members reside in "the vicinity of the Callaway Plant site." Joint Petition at 2.

The Crawdad Alliance (" Crawdad") is a group of citizens who object to the proliferation of nuclear power. The Joint Peti-tion asserts that members of Crawdad live dcwnstream and downwind of the Callaway Plant, and that many of its members live in "close proximity to the Callaway Plant." Joint Petition at 2.

The deficiency Applicant finds in these assertions of organizational standing on behalf of members was scuarely addressed in Allied-General,43 lear Servicas (Barnwell Fuel Receiving and Storage Station) , / 7.AB- 3 2 8 , 3 N.R.C. 420 (1976),

where the petitioner organization had identified a member who I

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resided relatively close to the facility involved, but there had been no particularization of how the interests of that member l might be adversely affected by the outcome of the proceeding.

Rather, the petition had been founded largely upon the organi-i

=ation's asserted concern with the issue on which it sought to q intervene. On the authority of Sierra Club v. Morton, 405 U.S.

727 (1972), the Atomic Safety and Licensing Appeal Board held that such concern was not enough to confer standing because, j although an organization whose members are injured may represent those members in a proceeding, a mere interest in a problem, no i'

matter how longstanding the interest and no matter how cualified the organization is in evaluating the problem, is not sufficient i by itself to render the organization " adversely affected" or i

} " aggrieved" within the meaning of the Administrative Procedure i

Act. 405 U.S. at 739-740. See also, Virginia Electric and l Power Comcany (North Anna Nuclear Power Station, Units 1 and 2) ,

l ALAS-536, 9 N.R.C. 402, 404 (1979).

Organizations are not clothed with independent standing to intervene in NRC licensing proceedings. Rather, any standing which an organization may possess is wholly derivative in character.

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It must appear that at least one of the persons it purports to represent does in fact have an interest which might be affected I by the licensing action being sought. Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALA3-535, I

9 N.R.C. 377, 390 (1979). As the Appeal Board observed in that case, the alleged fact that there are organization members who l

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live in the general vicinity of the plant site does not alter matters. There is no presumption that every individual so situated will deem himself or herself potentially aggrieved ,

! by the outcome of the proceeding -- an essential ingredient of standing. Id. at 393.

Further, as in the case of the Joint Petition, where there is no disclosure of the name and address of one such member for each organization, residing in close proximity to the facility site, it is not possible even to verify the asser-tion that such members exist. Id. Thus, the deficiencies of the Joint Petition go beyond those found in Barnwell, ALA3-328, 3

supra, where an individual member residing close to the facility i was identified, but there had been no particularization of that member's interest. Here, not a single such resident is even identified.

The Joint Petition is signed, for the Coalition, by its Board President in University City, Missouri. It is signed for MSE by a member in University City -- which is approximately 75 miles from the Callaway Plant site. Joint Petition at 3.

] The Joint Petition is signed for Crawdad by a member in St.

Louis, which is roughly 80 miles from the site. See Union Electric Company (Callaway Plant, Units 1 and 2), LBP-75-47, 4

2 N.R.C. 319, 320 (1975). There is_no particularization of any interest in the proceeding of these three individuals, who cannot be said to live within close proximity to the i

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Callaway Plant site.-2/ Further, it is clear that status as a ratepayer of Union Electric Company (see Joint Petition at 2) is not a cognizable interest in NRC proceedings. The Detroit Edison Company (Enrico Fermi Atcmic Power Plant, Unit No. 2),

ALA3-470, 7 N.R.C. 473, 476 (1978).

For the foregoing reasons, the Coalition, MSE and Crawdad have not shown, in the Joint Petition, that they have organizational standing to intervene in this proceeding because they have not demonstrated that they each have at least one

member who has a cognizable interest which might be adversely affected by the outcome of the proceeding.

Standing of the Individual Petitioner l

Kay Drey, of University City, Missouri, resides approxi-mately 75 miles from the Callaway Plant site. Joint Petition at

3. Residence at such a distance from the plant site', however, is not sufficient to establish a presumptive interest in the pro-ceeding in the absence of other grounds for standing. See Dairy-land Power Company (La Cross Boiling Water Reactor) , ALAB-49~,

8 N.R.C. 312, 313 (1978).

While the Joint Petition (at 3-4) describes Ms. Drey's concern with and involvement in environmental matters, there is no assertion, particularized or otherwise, that she has a cognizable 2/ Applicant recognizes that it would have been enough for standing purposes if the Joint Petition had been signed by a ranking offi-cial of each organization who had the requisite personal interest, as an individual, to support an intervention petition. Duke Power Company (Amendment to Materials License, Etc.), ALAB-529, 9 N.R.C.

146, 151 (1979). Here, however, two of the signers are not ranking officials and none of the three have asserted a particularized personal interest.

-interest which could be affected by the results of the proceeding.

One must allege some injury that has occurred or probably will result from the action involved. Under this " injury in fact test" a mere academic interest in a matter, without any real impact on the person asserting it, will not confer standing.

l Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 N.R.C. 438, 439 (1980),

quoting Portland General Electric Comoany (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 N.R.C. 610, 613 (1976).

l Conclusion In an operating licensing proceeding, careful scrutiny j of an intervention petition and request for hearing is fully warranted. As the Appeal Board observed with respect to the contention requirement, which has not yet even been addressed 3/

in this proceeding:-

In an operating license proceeding, unlike a construction permit proceeding, a hearing is not mandatory and, if held, is restricted i to those matters which have been put into contro-versy by the parties and are determined by the Licensing Board to be issues in the proceeding.

[ Citations omitted.] There is, accordingly, especially strong reason in an operating license proceeding why, before granting an intervention petition and thus triggering a hearing, a licensing board should take the utmost care to satisfy itself fully that there is at least 3/ While the Commission's Rules of Practice require that a peti-tion for leave to intervene set forth the specific aspect or aspects of the subject matter of the proceeding as to which peti-tioner wishes to intervene, 10 C.F.R. 5 2. 714 (a) (2) , contentions need not be presented until fifteen days prior to the first (or the special) prehearing conference. 10 C.F.R. 5 2. 714 (b) . In an operating license proceeding, before a hearing may be directed or intervention granted, a licensing board must make specific (footnote continued) r l

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one contention advanced in the petition which, on its face, raises an issue clearly open to adjudica-1 tion in the proceeding.

Gulf States Utilities Company (River Bend Station, Units 1 and

2), ALAB-183, 7 A.E.C. 222, 226 n.10 (1974). Repeating this passage in a later opinion, the Appeal Board stated

"We need only add that a board should take equal care in these cases to assure itself that potential intervenors do have a real stake in the proceeding. " Cincinnati Gas and Electric Company, et al.

(William H. Zimmer Nuclear Power Station), ALA3-305, 3 N.R.C.

8, 12 (1976).

s The Joint Petition to Intervene does not establish the standing, or personal interests, of the petitioners and should not be granted.

Respectfully submitted, SHAW, PITTMAN, POTTS & TRCWBRIDGE Gerald Charnoff Thomas A. Baxter Counsel for Applicant 1800 M Street, N.W.

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

(Footnote cont'd.)

determinations on the presence of at least one adequate contention, as well as on the requisite personal interest of a petitioner.

Cincinnati Gas and Electric Company, et al. (William H. Zimmer Nuclear Power Station), ALAB-305, 3 N.R.C. 8, 10 (1976).

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

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

) STN 50-486 OL l .

(Callaway Plant, Units 1 and 2) )

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CERTIFICATE OF SERVICE 4

1 I hereby certify that copies of the foregoing "7.ppli-cant's Answer to the Joint Petition to Intervene of Coalition for the Environmenr, St. Louis Region, Missourians for S ";

! Energy, Crawdad Alliance and Kay Drey'.' were served this _a ch day of October, 1980, by deposit in the U.S. mail, first class, postage prepaid, upon the following:

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1 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 1 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 3

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4 Roy P. Lessy, Jr., Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission

Washington, D.C. 20555 i Joseph E. Birk, Esquire Assistant to the General Counsel Union Electric Company P.O. Box 149

St. Louis, Missouri 63166 l Ms. Kay Drey

515 West Point Avenue i University City, Missouri 63130 i

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Thomas A. Baxter i

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