ML20003A820
| ML20003A820 | |
| Person / Time | |
|---|---|
| Site: | Wolf Creek  |
| Issue date: | 02/05/1981 |
| From: | Karman M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8102090105 | |
| Download: ML20003A820 (9) | |
Text
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BEFORE THE AT0f1IC SAFETY AND LICENSING B (D),
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KANSAS GAS AND ELECTRIC C0!!PANY &
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Docket No. 50-482 KANSAS CITY POWER & LIGHT COMPANY
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(Wolf Creek Generating Station, Unit No.1)
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T NRC STAFF ANSWER TO THE PETITION OF MISSOURI-KANSAS SECTION: AMERICAN NUCLEAR SOCIETY TO INTERVENE On December 18, 1980, the Nuclear Regulatory Commission (Commission) pub-lished in the Federal Register (45 Fed. Reg. 83360) a notice of opportunity for a hearing on the application for an operating license fo the Wolf Creek Generating Station, Unit No. 1.
On January 16, 1981 the Missouri-Kansas Section - American Nuclear Society (Petitioner) filed a timely petition for leave to intervene.
To. establish standing, the provisions of 10 C.F.R. 6 2.714(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.
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The petition is signed by the Chairnan of the petitioner organization t
on its behalf.
It states that the majority of the nembers live in the Kansas City area and will directly benefit fran electricity produced by Wolf Creek.
They support the plant and believe the plant will produce needed electricity at a reasonable cost over other energy forns and produce it 1
safely at an acceptable risk. The petition further states that the "menbers would be happy to discuss its safety, radiation risks, costs, wastes, etc."
In determining whether the requirements of 10 C.F.R. 9 2.714 have been met by a particular petitioner, thus allowing hin to intervene as 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.
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There is no showing, or attempt to show, that the tiissouri-Kansas Section: American Nuclear Society (MKSANS) itself has a safety or environ-mental interest that could be affected by the operating Wolf Creek facility.
Absent such a showing, MKSANS lacks standing and its petition dated January 16, 1981 should be denied.
However clear the foregoing may be it does not completely resolve the issue of whether the petition should be granted.
In Worth v. Seldin 422 U.S. 490 (1975) at 511, the Suprene Court stated that [e]ven in the absence of injury to itself, an association may have
. standing solely as the representative of its members." And, in Sierra Club
- v. tiorton 405 U.S. 727 (1972) at 739, the Supreme Court stated "[i]t is clear that an organization whose members are injured may represent those members in a proceeding for judicial review."
In conformity with this authority, the Appeal Board has held that an organization, even though it suffers no injury to itself by the proposed action, may intervene in a proceeding as the representative of its members. Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), ALAB-549, slip op. at 5,
(!!ay 18,1979); Public Service Co. of Indiana (Marble Hill Nuclear Gener-ating Station, Units 1 & 2), ALAB-322 3 NRC 328 (1976).
See, Houston Lighting and Power Co. ( Allens Creek Nuclear Generating Station, Unit 1),
ALAB-535, slip op. at 24, ( April 4,1979).
However, when intervening in this representative capacity, an organization must establish that at least 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, at 33-39. See, ALAB-522, supra, at 55-56. Thus it is incumbent to examine the January 16, 1981 petition to see if there are facts alleged which would support standing for individuals members of MKSANS and if so whether those mei.Oers have authorized MKSANS to represent their interests.
The petition alleges that members will benefit by the electricity to be produced and that they live in the Kansas City area - over fifty miles from
the facility. The Appeal Board has ruled that residence essentially justa-position to the facility standing alone is an interest sufficient to meet the Q 2.714 interest req;irement. 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 Boaid as conferring standing upon particular petitioners. See, M.,
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421, n. 4 (1977). E. Virginia Electric & Power Co. (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-73-12,6AEC241(1973).
In this instant mat".er the petition alleges an individual member living closer than in Kansas City which is over 50 miles from the facility. Thus standing to intervene cannot in this matter be obtained by the geographical nexus of the facility to residences of members of MKSANS.
The allegation in the petition that the nembers will benefit from electricity produced by Wolf Creek is the association of an economic benefit to be derived by members due to operation of the facility. No injury or l
other benefit is assisted.
The economic interests of ratepayers are not sufficient to allow stand-i ing to intervene as a matter of right since economic interests are not within the scope of interests sought to be protected by the Atomic Energy Act.
Kansas Gas & Electric Co. et al. (Wolf Creek Generating Station, 1
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. Unit 1), ALAB-424, 6 NRC 122, 128 (1977); 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 Oklahona et al. (Black Fox Nuclear Power Station, Units 1 & 2), LBP-77-17, 5 NRC 657 (1977).1/ Nor are such interests within the zone of interests protected by the National Environmental Policy Act. Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 & 2), ALAB-333, 3 NRC 804 (1976).
Economic interest or injury gives standing under the National Environmental Policy Act only if it is environ-mentally related.
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1421 (1977) which is not the case here.
See also Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1
& 2), ALAB-292, 2 NRC 631, 640 (1975).
Thus the January 16, 1981 petition of MKSANS does not demonstrate an interest of Mr. Dubal or any other member which is within the zone of inter-ests to be protected by the Atomic Energy Act or the National Environmental Policy Act.
Failing to set forth such an interest, the petition must be denied.
Although the petitioner and its members lack standing to intervene as of right under judicial standing concepts and NRC precedent, they may never-theless be admitted to the proceeding in the Licensing Board's discretion.
1/
See also Houston Lighting and Power Co. ( Allens Creek Nuclear Gener-ating ~ Station, Unit 1) ALAB-582,11 NRC 239 at 262 where the Appeal Board noted "It is now settled that an interest which is purely eco-nomic in character does not confer standing" to intervene under the Atomic Energy Act.
l In determining whether discretionary intervention should be permitted, the Commission has indicated that the Licensing Board should be guided by the following 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.
b)
Weighing against allowing intervention --
4)
The availability of other means whereby petitioner's interest will be protected.
5)
The extent to which the petitioner's interest will be represented by existing parties.
6)
The extent t'o which petitioner's participation will inappropriately broaden or delay the proceeding.
Portland General Electric Co. et al. (Pebble Springs Nuclear _ Plant, Units I l
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& 2), CLI-76-27, 4 NRC 610, 616 (1976).
The primary factor to be considered is the significance of the contri-bution that a petitioner might make.
Pebble Springs supra. Thus, foremost among the, factors listed above is whether the intervention would likely produce a valuable contribution to the NRC's decisionmaking process on a.
significant safety or environmental issue appropriately addressed in the
1
_7 proceeding in question.
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418 (1977).
In this instant matter items (a)(2) and (3) and (b)(4) and (5) all militate against the petitioners for neither the MKSANS or its members have demonstrated any discernible interest which could be cognizable under the Atomic Energy Act or the National Environmental Policy Act.
Therefore we
,need consider only items (a)(1) and (b)(6).
Although the MSKANS undoubtedly possess expertise in nuclear power reactor design, construction and oper-ation, there is no showing in the petition that their expertise is needed in addition to the expertise of NRC and the applicant in order to develop a sound record. The Staff recommends that MKSANS amend its peticion to show specifically what contribution it can make, without unduly be )adening or delaying this proceeding, so that the Board can better rule on the question of discretionary intervention.
Summary of Staff Conclusions (1) MKSANS has not demonstrated interest or standing.
(2) No member of MKSANS has demonstrated interest or standing.
(3) No member of *SANS has authorized MKSANS to represent said member.
(4) Consideration of factors involved in discretionary inter-vention as presently submitted do not favor MKSANS.
S_taff Recommen_dation The Staff recommends that the petition of PKSANS dated January 16, 1981 be denied with leave to amend within 15 days for MKSANS to attempt to conform to 10 C.F.R. $ 2.714 Respectfully submitted,
!My Myron a rman Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 5th day of February,1981.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of KANSAS GAS AND ELECTRIC COMPANY &
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Docket No. 50-482 KANSAS CITY POWER & LIGHT COMPANY (Wolf Creek Generating Station,
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UnitNo.1)
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF ANSWER TO THE PETITION OF MISSOURI-KANSAS SECTION: AMERICAN NUCLEAR SOCIETY TO INTERVENE in the above-captioned procteding 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 Comission's internal mail sysi.em, this 5th day of February,1981.
James P. Gleason, Esa., Chairman Atomic Safety and Licensing 513 Gilmoure Drive Board Panel Silver Spring, MD 20901 U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- Dr. George C. Anderson Department of Oceanography Docketing and Service Section l
University of Washington Office of the Secretary Seattle, Washington 98195 U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- Dr. J. Venn Leeds 10807 Atwell Floyd Mathews, Esq.
Houston, Texas 77096 Birch, Horton, Bittner & Monroe 1140 Connecticut Avenue, N.W.
Treva J. Hearne, Esq.
Washington, D.C.
20036 Assistant General Counsel P.O. Box 360 Kansans for Sensible Energy Jefferson City, Mo. 65102 P.O. Box 3192 Wichita, Kansas 67201 Jay Silberg, Esq.
i Shaw, Pittman, Potts & Trowbridge Mary Ellen Salava l
1800 M Street, N.W.
Route 1, Box 56 Washington, D.C.
20006 Burlington, Kansas 66839 Wanda Christy 515 N. 1st Street Burlington, Kansas 66839 Atomic Safety and Licensing Appeal Board Myron Karman U.S. Nuclear Regulatory Comission Deputy Assistant Chief Washington, D.C.
20555
- Hear'ing Counsel 1
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