ML20005C116
| ML20005C116 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 11/16/1981 |
| From: | Lewis S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8111180410 | |
| Download: ML20005C116 (11) | |
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November 16, 1981 UNITED STATES OF Af1 ERICA NUCLEAR REGULATORY C0i1111SSION BEFORE THE AT0!!IC SAFETY AND LICENSIrlG 80ARD In the T1atter of
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1 PHILADELPHIA ELECTRIC C0!iPANY
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NRC STAFF RESPONSE TO SUPPLEf! ENTAL
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PETITION TO INTERVENE OF WILLIA!! A. LOCHSTET q g
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INTRODUCTION On September 18, 1981, Dr. William A. Lochstet filed a timely petition to intervene in this pt oceeding.
Dr. Lochstet alleged that his health and safety would be adversely affected by the operation of the
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Limerick facility, that he resides 120 miles from the site and has had.
occasion to travel within 3 miles of it, that breathing the air and consuming locally grown food during such trips posed a potential health l
l threat, and that radon gas emitted from nining operations in the western United States would contaninate the air in his home of State College, Pennsylvania.
Responding to the Lochstet petition to intervene, the Staff opposed his adnission to the proceeding as of right for failtre-to show standing and failure to specify any aspect of the subject matter of the proceeding as to which he wished to intervene as required by 10 C.F.R. 5 2.714(a)(2).
The Staff held that the petition as originally drawn did g507
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not establish a cognizable interest in the licensing proceeding in light of the requirenents of 10 C.F.R. 9 2.714.1/
The Staff also neld that there was no basis upon which to adriit Dr. Lochstet as a party on a discretionary basis.
The Staff rejected the petitioner's contention that his doctorate degree and contribution in the Tnree Mile Island proceeding reflected a special competence that justified his adnission to this proceeding. The Staff found that he had not specifically set forth any aspect of the proceeding on which he wished to intervene which had not or could not be raised by other petitioners.
Fu rthe e, the Staff found that the petitioner had not shown that other petitioners could not represent his interests or pursue the broad issues he identified with equal effectiveness.2_/
Af ter review of his petition, the Atmic Safety and Licensing Board stated its prelininary view that Dr. Lochstet did not show grounds for intervention as of right nor meet the threshold requirements for discretionary intervention.1/ Moreover, the Board noted that Dr. Lochstet participated in an earlier proceeding in his capacity as Secretary of the t tvironmental Coalition on Nuclear Power (ECNP). Noting 1/
"NRC Staff Response to Petitions to Intervene and Request for Hearing..." (October 8,1981) at 21-23.
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Id. at 23.
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"Menorandun and Order Setting Schedule for Subnission of Contentions and Other Preliminary Information" (hereinafter, " Order")
(October 14,1981) at 11-12.
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further that ECNP may be adnitted to the 1... tant proceeding, the Board directed Dr. Lochstet to " state whether he was still an officer or nember of ECNP" and to show "how he would be prejudiced by being required to participate... under ECNP's banner."$/
In accordance with the provisions of 10 C.F.R. 5 2.714(a)(3}E/
and in response to the Board Order, Dr. Lochstet filed a " Supplemental Petition to Intervene," which addressed his relationship to ECNP, the recreational and other personal reasons which brought him in the vicinity of the site in the past, and two aspects of the proceeding he wished to address upon intervention.s/
For reasons set forth below, the Staff believes that Dr. lochstet has not established hi standing to intervene in this proceeding as of right nor has he met the requirements for discretionary intervention.
II. DISCUSSION The deficiencies perceived by the Staff and Board in Dr. Lochstet's original petition to intervene are not renedied in his Supplenental 4/
Order at 11.
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Anendment of a petition is pennitted without prior approval of the presiding officer at any time up to 15 days prior to the holding of the special prehearing conference.
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" Response to Board for Specific Infornation, Staff'.and Applicant Supplement to Petition to Intervene" (October 22,1981)
(hereinafter, " Supplemental Petition").
Petition. The criteria for establishing standing as of right were discussed earlier by the Staff,1/ and will not be restated herein.
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Although a petitioner may base his standing upon a showing that his residence is "within the geographical zonc that might be affected by an accidental release of fission products," the cases gr.4erally hold that intervention as of right will only be presumed for residence within 50 miles of the reactor site.SI A residence more than 100 miles fran the site is too renote, absent some identification of other basis for standing, to cor.Ter standing.E/
We disagree with Dr. Lochstet's clain that his occasional short trips for recreational or similar purposes to the vicinity of the facility are an adequate basis for standing.
In several cases, 2/
NRC Staff Response at 3-5.
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Louisiana Power and Light Company (Waterford Stean Electric Station.
Unit 3), ALAB-125, 6 AEC 371, 372, n. 6 (1973); Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2),
ALAB-146, 6 AEC 631 (1973). Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 223-24 (1974).
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douston Lighting and Power Company, et al. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 452 (1979).
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3 5-recreational activities in the general vicinity of a facility linked with local residency have been sufficient to confer standing.3S/ However, nere occasional trips to places within the general vicinity of the site by persons resident outside of the geographical impact area have been heid to be insufficient.11/
Taking into account the actual time 12I spent in the area and the I
distance of his residence and those places visited, from the facility,1/
Dr. Lochstet appears to have djt minimis contacts with the area in close proximity to the facility and these contacts are insufficient to confer standing in this proceeding as a natter of right.
---10/ Philadelphia Electric Company (Peach Botton Atomic Power Station, Units 2 and 3), CL1-73-10, 6 AEC 173 (1973).
Persons living near the plant who use the water body (Conowingo Pond) as a rec mational facility were concerned about water quality effects of thernal effluent. Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188,190 (1973).
Residents within 30 to 40 miles'of the reactor site "use the area in close proximity to the facility for recreational and other pu rpo se s. " Virginia Electric and Power Canpany (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 57 (1979).
Person residing 45 miles distant " engages in canoeing on the North Anna River.
--11/ Public Service Company ( ' Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143,1150 (1977). Occasional trips to a cannunity 23 miles from the site and other communities asserted to be "near" the site when the petitioner's ' residence was 125 miles distance was held to be insufficient to confer standing.
12/ Tennessee Valley Authority (Watts Bar Nuclear Generating Station, Unit 1), ALAB-413, 5 NRC 1418,1422 n. 4 (1977); Northern States Power Co. (Prairie Island Nuclear Power Plant, Units 1 and 2),
ALAB-107, 6 AEC 188, 189-90 (1973).
13/ Single days as close as 33 miles, and 4 days, at 83 miles from the site.
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A deficiency perceived by the Staff in Dr. Lochstet's initial petition was his failure to specify any aspect of.the subject natter of the proceeding as to which h? wished to intervene. The petitioner has now alleged two aspects which he plans to address: (1) potential fo" Baergency Core Cooling System (ECCS) failure and (2) presence of radon in the air in State College, Pennsylvania, from mill tailings in the western United States.
First, he alleges in his Supplemental Petition that pump failures in the ECCS in the event of a loss-of-coolant accident will endanger the people of Philadelphia. However, Dr. Lochstet is not a Philadelphia resident and, based on the distance from his residence to the site, it is not apparent that he would be affected by an accident at Linerick involving ECCS failure.
In proceedings before the NRC the general rule that litigants may only assert their own rights has been applied.3SI Accordingly, Dr. Lochstet cannot represent the interests of the residents i
of Philadelphia as he proposes.
Second, Dr. lochstet alleges in his Supplemental Petition that breathing the air in State College, Pennsylvania, the city of his residence, is he:ardous to his health due to radon emissions from mill tailings in the western United States which waft across the continent.
I 14/ Although in some instances the courts have found that the constitutional or statutory provision in question implies an
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entitlement to advance a " claim to relief [which] rests on the legal rights of third parties," we perceive nothing in the Atonic Energy Act or NEPA which would Lndergird a conclusion that either or both of those statutes contain such an implication. Watts Bar, ALAB-413, supra n.11, 5 NRC at 1421.
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Ue believe this is too reacte an interest in the result of this proceeding to justify a grant of intervention.1E/
Since it appears that Dr. Lochstet cannot be permitted to intervene as a natter of right, we must now address his request to intervene on a discretionary basis.
Discretionary intervention may be granted "where petitioners fail to establish standing as of right but show significant ability to contribute on substantial issues of law or fact which will not otnerwise be properly raised or presented, set forth these matters with 4
suitable specificity to allow evaluation, and deconstrate their importance and inmediacy, justifying the time necessary to consider them."35/
In responding to the Board's request for more specific information, Dr. Lochstet has failed to significantly clarify his me,bership status with respect to ECNP. While he is not precluded from seeking independent intervenor status, Dr. Lochstet has failed to show that ECNP, assuming it is admitted to this proceeding, could not adequately represent his interests or that representation by ECNP might result in prejudice to his 2'
interest.
l 15/ The NRC would not be required to consider such a renote and speculative impact under NEPA.
Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-262,1 NRC 163,183 (1975);
Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-156, i
6 AEC 831, 836, 838 (1973); Maine Yankee Atonic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003,1011 (1973);
Environmental Defense Fund v. Corps of Engineers, 348 F.Supp. 916,
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-933 (N.D. Miss., 1972).
et al. (Pebble Springs Nuclear Portland General Electric Company, R-317 (1976).
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Plant,1 and 2), CLI-76-27, 4 NRC 6
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. O Finally, Dr. Lochstet does not establish any reason to believe that he is likely to nake a substantial contribution to this proceeding which will not otherwise be made.
References to his activity in the TMI proceedings and natters he would address in the present case lack the specificity required to evaluate their importance and justify Board consideration. Nor does Dr. Lochstet clain to have expert assistance available to him. E Moreover, it should be noted thz even if Dr. Lochstet were found to have standing, it might still be appropriate to consolidate his intervention with that of another successful petitioner for intervention, in this case most likely ECNP.E III.
CONCLUSION For the reasons discussed above regarding lack of standing, the i
failure to identify aspects of the proccading which Dr. Lochstet may address, and the inadequate support for discretionary intervention, the Staff finds that the petitioner has not provided the infomation requested in the Board's Order nor has he complied with the requirements l
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-17/ Compare Black Fox, ALAB-397,1su ra, n.10, 5 NRC at 1149-1150, where the successful petitioner was willing and able to adduce the testimony of a qualified expert, and Watts Bar, ALAB-413, 5 NRC 1423, n. 7, in which petitioner indicated that it "would only be possible to bring in" expert witnesses "if different public interest j
groups decide...to fund...i t."
l 18/ See 10 C.C.R. Q 2.715a.
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of 10 C.F.R. @ 2.714.
Dr. Lochstet's individual petition to intervene in this proceeding should be denied.
Respectfully submitted,
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0 Stephen H. Lewis Counsel for NRC Staff Dated at 60thesda, !!aryland i
this 16th day of November, 1981 a
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOM 1C SAFETY AND LICENSING BOARD In the Matter of PHILADELPHIA ELECTRIC COMPANY
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Docket Nos. 50-352 1
50-353 (Limerick Generating Station, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO SUPPLEMENTAL PETITION TO INTERVENE OF WILLIAM A.. LOCHSTET" 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 Conmission's internal mail system, this 16th day of November,1981:
Lawrence Brenner, Esq., Chairman
- Hr. Edward G. Bauer, Jr.
Administrative Judge Vice President & General Counsel U.S. Nuclear Regulatory Commission Philadelphia Electric Company Washington, DC 20555 2301 Market Street Philadelphia, PA 19101 Dr. Richard F. Cole
- Administrative Judge Troy B. Conner, Jr., Esq.
U.S. Nuclear Regulatory Commission Mark J. Wetterhahn, Esq.
Washington, DC 20555 Conner and Wetterhahn 1747 Pennsylvania Avenue, N.W.
Dr. Peter A. Morris
- Washington, DC 20006 Administrative Judge U.S. Nuclear Regulatory Commission
- Mr. Charles Bruce Taylor Washington, DC 20555 24 West Tenth Avenue Collegeville, PA 19426 Mr. Frank R. Romano Air and Water Pollution Patrol Mr. Marvin I. Lewis 61 Forest Avenue 6504 Bradford Terrace Ambler, PA 19002 Philadelphia, PA 19149 Atomic Safety and Licensing Atomic Safety and Licensing Board Panel
- Appeal Panel (5)*
U.S. Nucl 1r Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Docketing and Service Section*
i Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 l
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2-Environmental Coalition on Nuclear Walter W. Cohen Power Consumer Advocate Dr. Judith H. Johnsrud, Co-Director Office of Attorney General 433 Orlando Avenue 1425 Strawberry Square State College, PA 16801 Harrisburg, PA 17120 Robert W. Adler Assistant Counsel Commonwealth of Pennsylvania, DER Thomas Gerusky, Director 505 Executive House, Bureau of Radiation Protection P.O. Box 2357 Dept. of Environnental Resources Harrisburg, PA 17120 5th Floor, Fulton Bank Building Third and Locust Streets Randall Brubaker Harrisbt.g, PA 17120 Assistant Counsel Commonwealth of Pennsylvania, DER Director Room 1200, 1315 Walnut St.
Pennsylvania Emergerr.y Management Philadelphia, PA 19107 Agency Basement, Transportation & Safety Joseph H. White Ill Building 11 South Merica Avenue Harrisburg, PA 17120 Bryn Mawr, PA 19010 John Shniper Steven P. Hershey, Esq.
Meeting House Law Bldg. & Gallery Consuners' Education Mennonite Church Rd.,
and Protective Association Schuylkill Rd. (Rte. 724)
Sylvania House Spring City, PA 19475 Juniper and Locust Streets Philadelphia, PA 19107 Robert L. Anthony Friends of the Earth of the Alan J. Nogee Delaware Valley The Keystone Alliance 103 Vernon Lane, Box 186 3700 Chestnut Street Moylan, PA 19065 Philadelphia, PA 19104 l
Judith A. Dorsey, Esq.
Robert J. Sugarman j
Limerick Ecology Action Del-Aware Unlimited, Inc.
l 1315 Walnut Street, Suite 1632 Berle, Butzel, Kass & Case l
Pniladelphia, PA 19107 2115 Bainbridge Street Philadelphia, PA 19146 Donald S. Bronstein, Esq The National Lawyers Guild William A. Lochstet Third Floor 119 E. Aaron Drive Philadelphia, PA 19102 State College, PA 16801 1425 Walnut Street l
Charles W. Elliott, Esq.
123 N. 5th Stree~t, Suite 101 Allentown, PA 18102
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-Stephe( H. Lewis Counsel for NRC Staff OM E
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