ML20003D726
| ML20003D726 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 03/27/1981 |
| From: | Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20003D724 | List: |
| References | |
| NUDOCS 8103310320 | |
| Download: ML20003D726 (8) | |
Text
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03/27/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In tne Matter
)
CLEVELAND ELECTRIC ILLUMINATING Docket Nos. 50-440 COMPANY, et al.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
NRC STAFF ANSWER TO THE PETITION OF OHIO CITIZENS FOR RESPONSIVE ENERGY TO INTERVENE On February 13, 1981, the Nuclear Regulatory Commission (Connission) published in the Federal Recister (46 Fed. Reg. 12372) a notice of opportunity for a hearing on the application for an operating license for the Perry Nuclear Power Plant, Units 1 and 2.
On fiarch 11, 1981 the Ohio Citizens For Responsive Energy (0CRE) (Petitioner) filed a tirely petition for leave to intervene.
To establish standing, the provisions of 10 C.F.R. Q 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 remitted to intervene; a,d P.
Identify the specific aspect or aspects of the subject matter of ther proceeding, as to which petitioner wishes to intervene.
The petition is signed by Jeff Alexander as a representative of the petitioning organization.
It states that at least five of its members live within 30 miles of the facility and that their principle Bess 10 %
concern is that lack of financial capability to operate the facility may increase the risk of exposure to harmful radioactive instances.
No member living within 30 miles of the facility is identified. No authorization from any member of OCRE for OCRE to represent them is present. No interest of OCRE as an organization is set forth.
In detennining whether the requirements of 10 C.F.R. 9 2.714 have been met by a particular petitioner, thus allot 'ng it to intervene as a matter of right in a proceeding, the Canmission as ruled that judicial concepts of standing should be applied in NRC 11 sing proceedings.
Portland General Electric Co. (Pebble Springs Nucl
- Plant, Units 1 &
2), CLI-76-27, 3 NRC 610 (1976).
These concepts requ "e a showing that the action being challenged could cause injury in fact to the person seeking standing, cad t6 at such injury is arguably with',
the " zone of interest," protected by the statute governing the proceed 1.
Id.
There is no showing, or attempt to show, that the OCRE itsulf has a safety or environmental interest that could be af fected by the operation of the Perry facility. Absent such a showing, OCRE itself lacks standing and its petition dated March 6,1981 should be denied.
However clear the foregoing may be it does not completely resolve the issue of whether the petition should be granted.
In Warth v. Seldin 422 U.S. 490 (1975) at 511, the Supreme 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. Morton 405 U.S. 727 (1972) at 739, the Supreme Court stated "[i]t is clear that an organization whose members are injured nay represent those members in a proceeding for jucicial review."
In l
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 at its members. Houston Lighting and Power Co. (South Texas Project, Units 1 &
2), ALAB-549, slip op at 5, (May 13, 1979); Public Service Co. Indiana (M=rble Hill Nuclear Generating Station, Units 1 & 2), ALAB-322, 3 NRC 328(1976).
See, Houston Lighting and Power Co. (Allens Creek f:uclear Generating Station, Unit 1), ALAB-535, 9 NRC 377 (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. Thus it is incumbent to examine the flarch 6,1981 petition to see if there are facts alleged which would support standing for individual members of OCRE and is so, whether those members have authorized OCRE to represent their interests.
The petition alleges that at least five members of OCRE live within 30 miles of the facility.
None of these individual members are identi-fied, none of ti ese members have signed affidavits setting forth their residency, and none of these members have authorized OCRE to represent then in this proceeding.
The Appeal Board has ruled that residence in near proxinity to the facility standing alone is an
- - - - -~
_4-interest sufficient to meet the 9 2.714 interest requirement.
Virginia Electric and Power Company (North Anna fluclear Power Sta'. ion, Units 1and2),ALAB-522,9NRC54,56(1979). Though no fim oute '
boundary for this geographic " zone of interest" has been determine /..
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 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 members living within 30 miles of the facility could provide the geographical nexus required for standing to intervene if such allegation is verified and if such members autharize OCRE to represent their interest.
Thus the March 6,1981 petition of OCRE does not dc onstrate an interest, of the organization itself, or of Mr. Alexander, or any other member which is within the zone of interests 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 nevertheless be admitted to the proceeding in the Licensing Board's di sc retion.
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 otner 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 or other means whereby petitioner's interrst will be protected.
- 5) Ti.c 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 the proceeding.
Portland General Electric Co. et al. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976).
The primary factor to be considered is the significance of the contribution 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 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) (1) and (2) and (b) (6) all militate against the petitioner.
However, consideration of items (a) 3 and (b) (4) and (5) favors admitting intervention.
The personal security of a persnn to be safe from harmful radiation and whether an applicant has the financial capability to operate the facility have been accepted as appropriate matters for litigation in an operating license proceeding.
Also there seems no other vehicle at the present time for the parochial interests of OCRE's members to oe represented in this proceeding.
~
Summary of Staff Conclusions (1) OCRE itself as an organization has not demonstrated interest or standing.
(2) No member of OCRE has been identified who has demonstrated interest or standing.
(3) No member of OCRE has authorized OCRE to represent said member.
(4) Consideration of factors involved in discretionary intervention as presently submitted do not favor admission of OCRE.
Staff Recommendation The Staff recommends that the petition of OCRE dated March 6,1981 be denied.
Respectfully submitted,
/
(MCW. ;,/ 'M%
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/CM Charles A. darth
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Counsel for NRC Staff Dated at Bethesda, Maryland this 27th day of March,1981 i
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UNITED STATES OF AMERICA b
NUCLEAR REGULATORY COMMISSION 9
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.BEFORETHEATOMICSAFETYANDLICENSINGBOARk gg i/
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)
CLEVELAND ELECTRIC ILLUMINATING
)
Docket Nos. 50-440 COMPANY, et al.
)
50-441
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE i
I hereby certify that copies of "NRC STAFF ANSWER TO THE PETITION TO INTER-VENE DATED MARCH 15 1981" and "NRC STAFF ANSWER TO THE PETITION OF OHIO
'CITIZENSFORRESPON$1VEENERGYTOINTERVENE"intheabove-captionedpro-ceeding have been served on the following by deposit in the United States mail, first class, or, as indicate.1 by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 27th day of March, 1981:
- Peter B. Bloch, Chairman Donald T. Ezzone, Esq.
Atomic Safety and Licensing Board Assistant Prosecuting Attorney U.S. Nuclear Regulatory Comission 105 Main Street Washington, D. C.
20555 Lake County Administration Center Painesville, Ohio 44077
- Dr. Jerry R. Kline Atomic Safety and Licensing Board Ted 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 Atomic Safety and Licensing Board Wegman, Hesiler & Vanderberg U.S. Nuclear Regulatory Commission 730 Chippewa Road, Suite 102 Washington, D. C.
20555 Brecksville, Ohio 44141 Jay Silberg, Esq.
Jeff Alexander Shaw, Pittman, Potts, Trowbridge & Madden 920 Wilmington Ave.
1800 M Street, N.W.
Dayton, Ohio 45420 Washington, D. C.
20036 e--
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i Atomic Safety and Licensing
-Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
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Atomic Safety and Licensing 1
1 Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Docketing and Service Section Office of the Secretary
.U.S. Nuclear Regulatory Commission l
Washington, D. C.
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Charles A. B/rth i
Counsel for I.RC Staff i
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