ML20005C146
| ML20005C146 | |
| 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 8111180465 | |
| Download: ML20005C146 (12) | |
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e i s 11/16/81 UNITED STATES OF AMERICA fl0 CLEAR REGULATORY COMl11SSION BEFORE-THE AT0f1IC SAFETY AND LICEt(SING BOARD In the Matter of
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PHILADELPHIA ELECTRIC C0f!PANY
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Docket Nos. 50-352 (Limerick Generating Station-
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6 bk4 Units 1 and 2)
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k U.cSY' 1 g '1 NRC STAFF RESPONSE TO " SUPPLEMENTAL MEf10RANDUM qr.f h'
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0F NATIONAL LAWYERS GUILD, PHILADELPHIA CHAPTER" b h gf 4#
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I.
INTRODUCTION
%g the National Lawyers g'i O
By timely petition dated September 18, 1981, Guild, Philadelphia Chapter (hereinafter, " Guild") sought to intervene in this proceeding for the issuance of operating licenses to Philadelphia Electric Company (hereinafter, " Applicant") for the Limerick Generating Station, Units 1 and 2.
The Guild based its claim of standing on its interest in the inpact on civil liberties of stringent security measures required to protect the Linerick plant, including the alleged illegal surveillance by the Applicant of opponents of the Limerick plant, and its interest in the adequacy of emergency planning, particularly as such planning relates to the inmate population at the State Correctional Institution at Graterford (hereinafter "SCIG").
In answer to the Guild's petition, the NRC Staff took the position that the Guild had failed to establish standing to intervene in this proceeding in that it had not shown how the interests of its nembers QSCO
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could be affected by the outcome of. this proceeding, nor that the civil liberties interests which the Guild sought to protect were within the zone of interests protected by the statutes governing this proceeding.
With respect to emergency planning for the innate population of SCIG, the Staff stated that the Guild should be required to identify more specifically the emergency planning deficiencies it alleges and to append affidavits of inmates setting forth their interests and how those interests might be affected by the outcone of this proceeding and authorizing the Guild to act on their behalf.1_/
Applicant, in its answer, also opposed the Guild's admission for failure to establish standing and further argued that the Guild had not adequately pleaded the " aspects" of the proceeding which it seeks to explore.U By its "Memorandun and Order Settirg Schedule for Submission of Contentions and other Prelininary Inforriation" (October 14, 1981, hereinafter " Order"), the Atomic Safety and Licensing Board directed the Guild to file an amended petition to include the following items:
1.
Affidavits of individual members setting forth that they are members of the Guild, authorizing the Guild to act on their behalf, and setting forth their interests and how those interests may be affected by the results of this proceeding.
}
1/
"NRC Staff Response to Petitions to Intervene and Request for Hearing..." (October 9,1981) at 23-25.
2]
Applicant's Answer to National Lawyers Guild, Philadelphia Chapter, Petition to Intervene (October 5,1981). The Staff did not find the Guild's statement of " aspects" to be aeficient.
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An affidavit of a person with authority to speak for the Guild, stating the authorization of the Guild to intervene in this proceeding and the authorization of Mr. Bronstein to act on behalf I
of the organization.
3.
If the Guild continues to seek standing as the representative of inmates at SCIG, it should state the location of SCIG in relation to the Limerick plant and should append the affidavits of prisoners not due to be discharged within the next three years setting forth their interests and how their interests may be affected by the results-of the proceeding, and authorizing the Guild to intervene on their behalf as their attorney in this proceeding.
4.
If the Guild continues to seek standing based upon its interest in the impact on civil liberties of both alleged illegal surveillance by the Applicant of opponents of the Linerick plant and security measures required to safeguard the plant, it should state why it believes this issue to be within the zone of interests protected by the statutes governing this proceeding.
Its amended petition should also be specific as to whether it is representing specific individuals who allege that their civil liberties have'been or will i
be infringed illegally by the Applicant should the operating licenses for the Limerick plant by approved.
If so, the Guild 4
should supply affidavits of such individuals authorizing the Guild to represent then, or an affidavit by a person with knowlege of the affidavitscannotbefiled.g)vereasons,ifany,whysuch facts setting forth substan On October 26, 1981, in response to the Board's Order, the Guild filed a " Supplemental Meacrandum". The Staff herein files its answer to the Supplemental Menorandum.
II.
DISCUSSION i
The Staff believes that the Guild has supplied sufficient information to establish the standing of the inmates of SCIG identified in the " Supplemental Memorandum" and appended affidavits.
The Guild has provided five identical affidavits of innates and states that these five affidavits were chosen from over twenty affidavits received fron inmates i
and available upon request.
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Order, at 7-9.
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The Supplemental !!enorandum states that SCIG is located 8.3 miles from the Limerick plant.
If this location were the residence of petitioners, it would raise a presumption of standing of their part.O Since the appended affidavits state that the inmates are not due to be discharged within the next three years, we believe their incarceration should be given similar weight in determining standing as would their residence at a similar distance.E The innates' affidavits further state:
1.
the understanding of each affiant that his safety, health, and well-being could be adversely affected in the event of an accident at Limerick for which evacuation steps are taken, since it is his understanding that "the evacuation plans provide for evacuation of inmates at SCIG only if an accident or other emergency were to occur during daylight, fair weather hours;"
-4/
Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979); Houston Lighting and Power Co. ( Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 393 (1979); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188,190 (1973).
-5/
See Tennessee Valley Authority (Watts Bar Nuclear Generating Station, Unit 1), ALAB-413, 5 NRC 1418, 1421-22 n. 4 (1977), noting that a clain of standing based upon student residence would not necessarily be deficient, but that the length of the petitioner's residence in the area might be relevant to a determination of standing.
. 2.
the belief of each affiant that, due to SCIG's proximity to Limerick, even nornal operation of the plant would pose a threat to his health, safety, or well-being; 3.
that the affiant authorizes the Guild to represent him in this proceeding.
We believe that these affidavits demonstrate the standing of the identified inmates at SCIG to intervene in this proceeding based upon the potential inpact on them of an accident at the facility for which evacuation measures night be adviseble. Assuning the remaining affidavits which the Guild has on file ire identical to those provided, the additional affiants also have standing.5/ The petitioners are, however, the identified innates, not the Guild.E Based upon the authoriz3tions in the affidavits, the Guild will apparently serve as counsel for the inmates, if they are admitted to this proceeding.
We turn now to the civil liberties interests which the Guild seeks to protect through this proceeding. The Board directed the Guild to clarify in its Supplemental !!enorandun and attached affidavits whether it seeks to represent individuals who allege that the Applicant has illegally infringed upon their civil liberties because of their 6/
The Staff requests that the Guild send to the Staff, Applicant, Licensing Board, and other NRC addressees on the service list, copies of the remaining affidavits.
y See Texas Utilities Generating Co. (Conanche Peak Steam Electric Station, Units 1 and 2), LBP-79-18, 9 NRC 728, 732-33 (1979). Any order admitting the identified innates as a party to this proceeding should identify then by some designation other than the " National Lawyers Guild".
i '
activities opposing the licensing of Limerick, or who believe that the Applicant nay infringe upon their civil liberties if operating-licenses are issued for Limerick. The Supplemental flenorandum states that the Applicant has admitted before the Pennsylvania Public Utility Comnission i
that it has engaged in surveillance of individuals opposed to the Limerick plant, It appears that the Guild seeks to protect the interests of such persons in this proceeding, but the attached five identical affidavits of Guild members merely state that the affiants are "particularly concerned in this proceeding with issues concerning security". These affidavits fall short of compliance with the Board's direction, in that they do not allege that the Applicant has illegally i
infringed upon, or nay illegally infringe upon, affiants' civil liberties. Absent this specification, the Guild has not shown what civil i
liberties interests its members have in this proceeding and how those interests might be affected by the outcome of the proceeding.
Petitioners seeking to intervene in Commission proceeding on the basis of i
civil liberties interests have been previously denied intervention for 1
failure to provide such specification.8f The Guild further asserts that any surveillance of opponents of the
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Limerick plant could affect the organization, itself, because of its publicly stated opposition to Limerick and to nuclear power in general.
-8/
Allied-General fluclear Services, et al. (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 f1RC 420, 422-23 (1976); Allens Creek, ALAB-535, supra n. 4, 9 flRC 391-92.
i I
1 b
In rejecting the intervention. petition of another chapter of the Guild in the Allens Creek proceeding, the Appeal Board stated, however organizations of its [the Guild's] stripe are not clothed with independent standing to intervene in NRC licensing proceedings.
Rather, any standing which the Guild may possess is wholly derivative in character. 9f In order to establish standing by reason of its civil liberties interests the Guild would have to demonstrate a nexus between the issuance of operating licenses for Limerick and the alleged illegal activities of the Applicant. The Board has articulated this issue as whether the civil liberties interests which the Guild seeks to protect are within the zone of interests protected by the statutes governing this proceeding.
It is well-established that alleged injuries beyond the: zone of interests protected by the statutes governing this proceeding cannot provide basis for standing.El The Guild cites the language of @ 103(d) of the Atonic Energy Act of 1954, as amended,N/ o the effect that t
no license may be issued to any person within the United States if, in the opinion of the Comnission, 9f ALAB-535, supra n. 4, 9 NRC 390.
10/ See, e.g., Portland General Electric Co. (Pebble Springs fluclear l,
Plant, Units 1 and 2), CLI-76-26, 4 f1RC 610, 613-14 (1976); Long Island Light Co. (Jamesport fluclear Power Station, Units 1 and 2),
ALAB-292, 2 flRC 631, 638.
M/ 42 U.S.C. 5 2133(d).
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1
. 1 the issuance of a license to such person would be inimical to the connon defense and security or to the health and safety of the public.
Arguing from this language, the Guild asserts that since " security issues are relevant to this proceeding" the NRC nust "be certain that likely security measures are in the public interest and do not inpinge on civil liberties".
The Staff does not believe that the Guild's argument demonstrates that the Commission has been given the responsibility for considering the impact on civil liberties of activities which a licensee may undertake as part of its security program outside of the activities licensed by the Commission.
The Connission's physical security regulations prescribe certain steps to be taken to assure the capability to protect the facility from various threats, but do not reach other activities (such as surveillance) which a licensee night consider necessary to undertake.E Consideration of such activities in Comnission licensing proceeding has been previously rejected. E The Guild has failed to denonstrate that such activities are within the scope of natters which may be raised before this Licensing Board. To answer in the tems posed by the Board, the civil libertias interests asserted by the Guild do 12f See 10 C.F.R. 9 50.34(c-d), 9 50.54(p), 73.55 and Appendix C to Part 73.
-13/ See Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), LBP-78-26, 8 f!RC 102, 168 (1978), aff'd, ALAB-573, 10 NRC 775, 783 n. 31 (1979), and ALAB-498, 8 f!RC 315, 316-17 (1978).
not fall withic. the zone of interests protected by the Atonic Energy Act.SSI Each affiant nenber of the Guild also asserts that he/she resides within 25 niles of the plant, believes the plant,would " pose a threat to my health and safety," and is "particularly concerned in this proceeding with issues concerning... emerge,cy planning". The Supplenental Memorandun more specifically identifies the issues about which the Guild members are concerned as being the impact on civil liberties of security ceasures and the adequacy of energency planning for innates of the SCIG.
We have already addressed these grounds for standing and do not believe the Supplemental Menorandun and attached affidavits establish any other ground for the standing of Guild members.
We conclude that the Guild has not established its standing to intervene in this proceeding.
III.
CONCLUSION In summary, it is the position of the NRC Staff that the identified inmates of the SCIG have shown standing to intervene in this proceedirig and have authorized the Guild to act as their attorney. The Guild itself i
~~~14/ Although the Board also directed the Guild to address whether its interests night fall within the zones of interest protected by either the National Environmental Policy Act of 1969 ("NEPA",
42 U.S.C. @ 4332, eti seq.) or the Energy Reorganization Act of 1974, as amended (42 U.S.C. 9 5801, et seq.), the Guild has not done so.
In any event, the Staff does not believe that the Guild's interests fall within the zone of interests protected by NEPA (see Mr. Rosenthal's analysis in Janesport, ALAB-292, supra, n.10, 2 NRC 638-43) or that the Energy Reorganization Act expanded the zone of interests under the Atonic Energy Act (see 42 U.S.C.
S 5801).
. i has, however, failed to establish standing to intervene on its own behalf or on behalf of its nenbers with respect to its interest in protection of civil liberties or any other interest which it has asserted. We conclude that the identified innates of the SCIG should be granted intervenor status in this proceeding, if they subsequently file at least one contention which satisfies the staadards of 10 C.F.R. 6 2.714(b).
The Guild should be recognized as their counsel in this proceeding.
Respectfully submitted, Steph n H. Lewis Counsel for NRC Staff Dated at Bethesda, liaryland this 16th day Of November,1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PHILADELPHIA ELECTRIC COMPANY 00cket Hos. 50-352 50-353 (Limerick Generating Station.
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO " SUPPLEMENTAL MEMORANDUM 0F NATIONAL LAWYERS GUILD, PHILADELPHIA CHAPTER" 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 by deposit in the Nuclear Regulatory Commission internal mail system, this 16th day of November,1981:
Lawrence Brenner, Esq., Chairman
- Mr. 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. Morrir*
Washington, DC 20006 Administrative Judge U.S. Nuclear Regulatory Commission Mr. Charles Bruce Taylor Washington, DC 20555 24 West Tenth Avenue Collegeville, PA 19425 Mr. Frank R. Romano Air and Water Pollution Patrol Mr. Marvin I. Lewis 61 Forest Avenue 6504 Bredford Terrace Ambler, PA 19002 Philadelphia, PA 19149 Atomic Safety and Licensing Atomic Safety and Licensing Board Panel
- Appeal Panel (5)*
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission W6shington, DC 20555 Washington, DC 20555 Docketing and Service Section*
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 gm m 4 m
e eewe ga e
Environmental Coalition on Nuclear Walter W. Cohen Poner Consumer Advocate Dr. Judith H. Johnsrud, Co-Director Office of Attorney General 433 Orlanao 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 Harrisburg, PA 17120 Assistant Counsel Commonwealth of Pennsylvania, DER Director Room 1200, 1315 Walnut St.
Pennsylvania Emergency Management Philadelphia, PA 19107 Agency Basement, Transportation & Safety Joseph H. White III Building 11 South Merion Avenue Harrisburg, PA 17120 Bryn Mawr, PA 19010 John Shniper Steven P. Hershey, Esq.
Meeting House Law Bldg. & Gallery Consumers' Education Men 7onite Church Rd.,
and Protective Association Scnuylkill 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 Judith A. Dorsey, Esq.
Robert J. Sugarman Limerick Ecology Action Del-Aware Unlimited, Inc.
1315 Walnut Street, Suite 1632 Berle, Butzel, Kass & Case 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 Charles W. Elliott, Esq.
123 N. 5th Street, Suite 101 Allentown, PA 18102 A O-Steph n H. Lewis Counsel for NRC Staff
.