ML19347C343
| ML19347C343 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 10/15/1980 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8010170365 | |
| Download: ML19347C343 (13) | |
Text
1 10/15/80 l
UNITED STATES OF AMERICA 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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l RESPONSE OF THE NRC STAFF TO l
JOINT PETITION TO INTERVENE FILED BY KAY DREY I.
INTRODUCTION l
On August 26, 1980, the Nuclear Regulatory Commission published in the l
Federal Register (45 Fed. Reg. 56956) notice of opportunity for a hearir,q on the application for operating licenses for the Callaway Plant, Units 1 and i
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. 52.714 no later than September 25, 1980.
Pursuant to this notice, on September 25, 1980, Kay Drey submitted on behalf of herself, Coalition for the Environment, Missourians for Safe Energy and Crawdad Alliance (Joint Petitioners) their
" Joint Petition to Intervene" (Joint Petition).
It is argued below that the joint petition adequately identifies the aspects of the proceeding as to which the joint petitioners wish to intervene.
Further, it is argued that the joint petition with respect to Kay Drey is adequate to meet the " interest" requirements of 10 C.F.R. 52.714. The Staff 8010170365 h
. believes that all that is deficient with respect to satisfaction of the " interest" requirements of 10 C.F.R. 52.714 by the other three joint petitioners is a state-ment from designated members whose interest may be affected by operation of the Callaway p-ant that they have authorized their respective petitioning
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organizations to represent them in the above proceeding.
This response is limited to the issues of whether Joint Petitioners satisfy the requirements of 10 C.F.R. 52.714 with regard to " interest" and the identification of aspects of the proceeding as to which intervention is sought. 2_/
II.
ARGUMENT 4
A.
Requirements for Intervention The provisions of 10 C.F.R. 52.714 require that a petition to intervene set forth with particularity the interest of a petitioner in the proceeding, the 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.
S n a telephone conference between the undersigned and Kay Drey, Kay Drey in-I formed Staff counsel that such authorizations would be provided in affidavit form as an addendum to the instant joint petition.
If the members do by such affidavits authorize the petitioning organizations to represent their
" interests" the Staff believes that the " interest" requirements of Section 2.714 would be satisfied for such organizations.
S The Staff does not at this time take any position with regard to the admissibility of concerns of the Joint Petitioners as contentions in this proceeding. Under 10 C.F.R. 52.714(b), Joint Petitioners have the opportunity to set forth specific contentions and the bases for them in a supplement to their Joint Petition to be filed at least 15 days prior to the first pre-hearing conference. The Staff's view of the admissibility of contentions 1
will be set forth in response to such supplement to the Joint Petition for
'l Leave to Intervene filed pursuant to Section 2.714(b).
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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 be admitted as a 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. (B' c' Tox Station, Units 1 and 2),
ALAB-397, 5 NRC 1143,1144-45 (1977).
Consequently, a petitioner must show that the proposed action whicl is the subject of the proceeding could result in " injury in fact"S o an interest which is " arguably within the t
zone of interest" protected by the Atomic Energy Act or the National Environ-mental 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 by an accidental release af fission products," Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 at n. 6 (1973)S or that his or her base of normal everyday netivities is in the vicinity of the facility.
Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-183, 3" Abstract concerns" or a " mere academic interest" in the ratter 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 harm mu.t have some particular effect on a petitioner, Transnuclear, supra, and a peticioner 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 420, 422 (1976).
S e Appeal Board has recently held that geographical proximity of a member's Th residence to a facility is sufficient, standing alone, to satisfy the interest requirements of 10 C.F.R. 92.714. Virginia Electric ard Power Comp ny (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522 9 NRC 54, 56 1979).
. 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 5
a part of the year. See, e_.,q., Northern States Power Connany (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 4
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).
An organization may intervene in a proceeding as the representative of its members. Houston Lighting and Power Co. (South Texas Project, Units 1 & 2),
ALAB-549, 9 NRC 644, 647 (1979); Public Service Co. of Indiana (flarble Hill Nuclear Generating Station, Units 1 & 2), ALAB-322, 3 NRC 328 (1976).
See Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station,
-/A petitioner who resides at an appreciable distance from a nuclear facility 5
but who frequently engages in substantial business and related a-tivities in the vicinit" af the facility may establish the requisite interest and standing. See Portland General Electric Company, et al. (Trojan Nuclear Plant), Order Concernin; F.equests 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).
. Unit 1), ALAB-535, 9 NRC 377, 390 (1979).
However, when intervening in this representative capacity, an organization must establish that at least I
one of the persons it purports to represent does in fact have an interest which might be affected by the licensing action being sought. ALAB-535, supra. A member with such an interest must also authorize the petitioning organization to represent his or her interest in the proceeding in which the organization seeks leave to intervene, thus clothing the organization with that member's personal standing. ALAB-535, supra, 395-397. See, ALAB-522, suora, at 55-56.
As noted above, a petition to intervene, in addition to setting forth a petitioner's interest and the potential effects of the proposed action on that interest, must identify the specific aspects of the proceeding on which inter-vention is sought. The only relevant aspects of the proceeding are those which fall within the scope of the proceeding. 6f While there is little guidance as to the meaning of " aspect" as that term is used in 10 C.F.R. s2.714, 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 " aspects" requirement of Section 2.714, it is not appropriate to apply the same standards as those applied to determine the admissibility of contentions.
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Thus, it appears that a petitioner may satisfy the " aspects" requirement d
S ee, e.g_., Metropolitan Edison Company (Three Mile Island Nuclear Station, S
Unit T), Licensing Board " Memorandum and Order Ruling on Petitions and Setting Special Prehearing Conferences" (September 21, 1979) (restart), slip op. at 6.
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. 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 Joint Petitioners' petition for leave to intervene should be examined in light of the foregoing principles.
B.
Joint Petitioners' Interest and Standing 1.
The Coalition, Missourians for Safe Eneray, and Crawdad Alliance These joint petitioners assert standing based upon the proximity of members of their organizations to the Callaway plant. 7] A member of each of the petitioning organizations who lives less than ten miles from the plant has been identified as follows:
(1) Valiant Yates, who is a member of both Crawdad Alliance and the Coalition, lives at 207 Jefferson Street, in Fulton, Missouri, less than ten miles from the plant; and (2) Lorna K. Mitchell, l
who is a member of Missourians for Safe Energy, lives at 521 West 7th, in Fulton, Missouri, less than ten miles from the plant. 8]
The Staff believes that these assertions are sufficient, in light of the previously discussed principles with regard to interest and standing to (a) establish that the interests of these members are within the zone of interest to be protected by the Atomic Energy Act (to protect their health and safety) and (b) establish that these members might suffer injury-in-fact from the licensing action (since each member lives within close geographical 3 oint Petition, pp.1-3.
J 0lTelephone conferences between undersigned and Ms. Drey on October 10, 1980 and between undersigned and Dan Bolef on October 14, 1980.
. proximity to the Callaway Plant). Accordingly, based on the principles discussed above,each of the petitioning organizations can intervene in a representative capacity based on the affected interests of one of their members. However, there remains one deficiency.
Each of the members whose l
interest is being represented by the organization must also authorize the petitioning organization to represent that member's interest in the proceeding.
This is usually done by the filing of a statement of such individual stating l
such authorization.S Absent this indication of authorization the Staff believes that the petition should be denied.
l 2.
Kay Drey l
Ms. Drey like the other Joint Petitioners asserts that she receives her drinking water from the Missouri River which could be polluted by releases (both normal and accidental) from the Callaway Plant and cause her injury since she lives down-stream of the plant and the sole supply of her drinking water is the Missouri River.b She also asserts that injury could result from normal or l
accidental releases at the plant since she resides "in the path of the prevailing winds from the plant." She furtnermore states that in the past she has used l
the Missouri River for recreation within a few miles of the Plant and plans to continue such use in the future (including hiking along the Lewis and Clark trail ).E The Staff believes based on the combination of the above assertions S s. Drey informed Staff counsel that affidavits were being prepared and M
would be filed as an addendum to the Joint Petition. If such affidavits are filed (indicating for each of the specified members whose interests would be affected by the Callaway Plant, authorization of the petitioning organi-zations to represent those interests) the joint petitioning organizations would satisfy the " interest" requirements of 10 C.F.R. 82.714.
N oint Petition, at 4 and 5 and telephone conference of October 10, 1980 J
between undersigned and Ms. Drey.
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that Ms. Drey has established enough of a stake in the outcome of this pro-
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ceeding to satisfy the interest requirements of 10 C.F.R. 52.714 in spite of ii the fact that she does not live in close proximity to the plant.E i
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C.
Aspects of the Proceeding As to Which Joint Petitioners Seek To Intervene.
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The Joint Petitioners set forth five " aspects" of the Callaway Plant operation that concern them:
(Joint Petition, at 5, 6 and 7)
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- 1) That there are specific construction defects that will undermine i
safe operation of the Plant.
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- 2) That operation of the Plant will not be in compliance with NRC 1
1 and EPA radiation standards.
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- 3) That certain unresolved safety issues will not be adequately con-i sidered in review of the safe operation of the Callaway Plant.
- 4) That tnere has been a failure to consider new data reflecting j.
increased potential for significant earthquake activity.
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- 5) That site planning has not included the potential need to store low and high level wastes in perpetuity.E t
1 E Ms. Drey asserts that she lives approximately 75 miles from the Callaway i
Plant.
$ e Staff notes that consideration by the Licensing Board of the impacts i
Th of the storage of radioactive wastes beyond the tenn of the operating -
license is.'not permitted. Virginia Electric and Power Co. (North Anna
~ Nuclear Power Station, Units.1 and 2), ALAB-584,11 NRC 451, 463-465 i
(1980).
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. l Although these " aspects" are for the most part general in nature, they adequately point out the aspects of the proceeding as to which the Joint Petitioners wish to intervene. Accordingly, it is the Staff's position that the Joint Petitioners have satisfied the " aspects" requirements of 10 C.F.R.12.714.5 III.
CONCLUSION For the reasons set forth above, the Staff concludes that:
- 1) Joint Petitioners (Coalition, Missourians for Safe Energy, Crawdad Alliance and Ms. Drey) have satisfied the " aspects" requirements of 10 C.F.R. 52.714.
- 2) Ms. Drey has also satisfied on her own behalf the " interest" require-ments of 10 C.F.R. 52.714.
In the event that she ultimately satisfies the contention requirements of 10 C.F.R. 52.714(b), the Staff believes that she should be admitted as a party to the proceeding.
- 3) The Coalition, Missourians for Safe Energy and Crawdad Alliance have satisfied the " interest" requirements of 10 C.F.R. 52.714 as to
$10 C.F.R. 52.714(b) provides for the fonnulation of contentions up to 15 days before a special prehearing conference. The aspects of the proceeding on which intervention is sought have been identified. The i
Joint Petitioners should be required to frame contentions in accord with this section in proper form.
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named members and should be admitted as representatives of those members on filing of appropriate statements of authorization and i.
ultimately satisfying the contention requirements of 10 C.F.R. 52.714(b).
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 joint petition setting forth specific contentions and the bases for those contentions. This supplement i
may be filed up to 15 days before any special prehearing conference.N Respectfully submitted, j
j, -)
- :, ((y.us Hen
. McGurr' n Counsel for NRC Staff Dated at Bethesda, Maryland this 15th day of October,1980 i
b l0C.F.R.12.714(b).
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of g:
UNION ELECTRIC COMPANY Docket Nos. STN 50-483 STN 50-486 (Callaway Plant, Units 1 and 2)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 52.713,10 C.F.R. Part 2, the following information is provided:
Name
- Henry J. McGurren Address
- Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Telephone Number
- Area Code 301-492-7836 Admission
- Supreme Court of the State of Illinois Name of Party
- NRC Staff U.S. Nuclear Regulatory Conmission Washington, D.C.
20555 4 CA Henry (l for NRC Staff
./McGurren Counse Dated at Bethesda, Maryland this 15th day of October,1980
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD I
In the Matter of
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UNION ELECTRIC COMPANY Docket Nos. STN 50-483 (Callaway Plant, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF THE NRC STAFF TO JOINT PETITION TO INTERVENE FILED BY KAY DREY" and " NOTICE OF APPEARANCE" of Henry J. McGurren 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 Commission's internal mail system, this 15th day of October,1980:
l James P. Gleason, Esq., Chainnan 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 Safety and Licensing Thomas A. Baxter, Esq.
Appeal Board
- Shaw, Pittman, Potts & Trowbridge U.S. Nuclear Regulatory Commission 1800 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 City, M0 65262 Washington, DC 20555 Treva J. Hearne Marjorie Reilly Assistant General Counsel for the Energy Chairman of the League of Missouri Public Service Comission Women Voters of University City, M0 P.O. Box 360 7065 Pershing Avenue Jefferson City, Missouri 65101 University City, MO 63130 l
Barbara Shull Lenore Loeb League of Women Voters of Missouri 2138 Woodson Road St. Louis, Missouri 63114
2-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 Universii' City, MO 63130 Missourians for Safe Energy 6267 Delmar Boulevard University City, MO 63130 HenpE'J. McGurren f
Counsel for NRC Staff r
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