ML20011A355

Answer Opposing Limerick Ecology Action 810918 Petition to Intervene.Petitioner Failed to Satisfy Requirements for Intervention by Organization Purporting to Represent Personal Interests of Members.Certificate of Svc Encl

ML20011A355
Person / Time
Site:	Limerick
Issue date:	10/05/1981
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8110090348
Download: ML20011A355 (12)

Text

.

.. .- g . ,.

, * *s.

UNITED STATES OF AMERICA

= NUCLEAR REGULATORY COMMISSION .

~

I'

{:5 Gt e '\

4. * -

Before the Atomic Safety and Licensing Bo'afd . .. . ..

t-pQ., Q .

YN ,.,'. ,^. V, In the Matter of )

)

Philadelphia Electric Colapany ) Docket Nos.50-353 50-352 V '

)

'O 7.L} 14,f< c l

(Limerick Generating Station, ) g Units 1 and 2) )

2 oc7 D O /Sg .

APPLICANT'S ANSWER TO LIMERICK ECOLOGY Y- u,4,Ick*g,[7 ,);

ACTION PETITION TO INTERVENE s

Ql) -

Preliminarv Statement ljT'Y.

On August 21,-1981, the Nuclear Regulatory Commi

(" Commission" or "NRC") public notice in the Federal Register entitled " Philadelphia Electric Co. (Limerick Generating Station, Units'l and 2), Receipt of Application for Facility Operating Licenses; Consideration of Issuance l

of Facility Operating Licenses; Availability of Applicant's ~

1/ .

Environmental Report; and Opportunity for Hearing" (" Notice").

In response to the Notice, a petition for intervention was filed by Limerick Ecology Action (" LEA") on September 2/

The affidavits of four members of LEA were

~~~

18, 1981.

attached in support of the petition.

//

J/ 46 Fed. Reg. 42557 (August 21, 1981).

~

2/ LEA is represented by co-counsel, who presumably were authorized by LEA's Executive Board to file andInserve addi-the petition for intervention on its behalf. states tion, however, Phyllis Zitzer, president of LEA, in her affidavit that she has been " designated by the Executive Board of Limerick Ecology Action as the organi-zation's duly authorized member representative to partici-pate in the operating license proceedings before the NRC for Limerick Units an 1 and 2." Under unincorporated the Commission's Rules association such as LEA "may of Practice, be represented by a duly authorized member or of ficer, or D110090348 811005 Footnote 2/ continued on next page) '

JR ADOCK 05000352 PDR.

O

w .

-2~

For the reasons discussed more fully below, petitioner LEA has failed to satisfy the requirements for organizational standing in an NRC proceeding. Nor has petitioner identified the " specific aspect or aspects of the subject matter of the proceeding" which it- wishes to pursue. Accordingly, the petition should be denied.

Argument Under the Commission's Rules of Practice, a petition to intervene in a licensing proceeding may be granted only if the requirements of 10 C.F.R. SS2. 714 (a) (2) and (d) have bean satisfied. In essence, the regulations require the petitioner to state his specific interest in the proceeding and explain how that interest may be affected by the outcome of the' proceeding.

It is now well settled that " organizations . . . are not clothed with independent standing to intervene in NRC licensing proceedings. Rather, any standing which [an organization] may possess is wholly derivative in character."

Houston Lighting and Power Company (Allens Creek Nuclear 3/

Generating Station, Unit 1) , ALAB-535, 9 NRC 377, 390 (1979). --

In other words, an organizational petitioner must establish

_2/ (continued) by an attorney-at-law." 10 C.F.R. 52. 713 (b) (emphasis added). In these circumstances, it is assumed that the designated co-counsel will act as the sole representatives and spokesmen for LEA in all aspects of this proceeding.

_3/ See also Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-79-18, 9 NRC 728 (1979); Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73 (1979).

that at least one of its members has legal standing to intervene in-this proceeding under the rules applicable to

. individual petitioners.

In response to the. petition of Marvin I. Lewis to intervene in this proceeding, Applicant has stated its position as to the necessary particularization of an indi-in a licensing vidual petitioner's identifiable interest proceeding, including an explanation of how that interest would be af fected by any given outcome in the proceeding.

This position is equally applicable to the generalized statements of petitioner's members herein. Rather than furnish the Licensing Board with repetitive pleadings, Applicant hereby incorporates and respectfully refers the Board te its answer to the Lewis petition for a statement of the additional authorities upon which it relies in opposing 4/

the instant petition.

Although the four members of LEA who have furnished affidavits live within 4 - 11 miles of the Limerick facility, their stated interests in intervening are insufficient to confer standing on LEA. For example, the statement by Phyllis Zitzer that she is " concerned about the safe opera-tion of the Limerick reactors" is a classic example of a nonparticularized interest which is shared in roughly the same measure by a large portion of the general public.

-~

4/ Petitioner has been served with a copy of Applicant's answer to the Lewis petition.

• +

Further, her assertion that she "will be directly affecte d j

by their operation" is entirely. conclusionary 5/

and . fails to '

'"sh'ow a distinct and palpable harm" to' affiant herself.

Nothing in her affidavit . establishes how she "will or might be injured in fact by one or more of the possible outcomes of the proceeding," but nerely shows an intent "to vindicate broad public interests said to be of particular concern to 6/

[her]."--

The same is true of the other affidavits, which contain equally vague ' statements that the af fiants are concerned that the Limerick reactors "will adversely affect the health, well-being and economic' prosperity of ourselves and our 7/

children."

Contrary to the requirements of 10 C.F.R.

S S2.714 (a) (2) and (d), these affidavits entirely fail to ,

" set forth with particularity the interest of the petitioner in the proceeding" and "how that interest may be affected by the results of the proceeding," including further specifi-cation of the " nature and extent" of the affiant's interest in the proceeding.

Indeed, one of the affidavits specifies an interest which is clearly beyond the jurisdiction of this Licensing Board to consider, i.e., the adequacy of insurance against a Transnuclear, Inc., CLI-77-24, 6 NRC 525, 531 (1977).

_5/ '

Inc. (Sheffield, Illinois, 6/ Nuclear Engineering Comoany, ALAS-473, Low-Level Radioactive Waste Disposal Site),

- 7 .NRC 737, 740-41 (1978) .

_7/ LEA petition, af fidavit of Susan and Philip Nester.

(-

nuclear accident. ~/

8 Whether construed as an attack upon the validity of the Price-Anderson Act -/ 9 or an unauthorized challenge Part 10/to the Commission's regulations under . .R.

10 C F n ac 140,~~ the adequacy of insurance againstssible a po

. ear accident may not be litigated in this proceeding See Pennsylvania Power & .

Licht Company (Susquehanna Steam Electric (1979).

Station, Units 1 and 2), LBP-79-6, 9 NRC 291, 323 Another affiant states " concerns about the evacuation plans for (the Pottstown Memorial Medical Center) , in the event of an accident at Limerick that would require us to evacuate and relocate our patients."-~11/

As an employee, not an owner or other duly authorized representative ,

of the hospital, the affiant (and therefore LEA) lacks standing to represent the hospital's proprietary interests .

Simil:vly, tlie affiant lacks standing to represent the personal health and safety interests of the hospital's patient s.

established that, It is well in the absence of a fiduciary, trustee or other special relationship recognized under th e law, there is no right to litigate che interests of thi rd parties in

_8/ LEA petition iffidavit of Nancy Catton.

_9/ 42 U.S.C. 52210.

10/

Absent express authorization to the contr ary, the Commission's adjudicatory boards lack auth ority to hear challenges licensing proceedings.to the Commission's regulati Edison Company See, e.c., ons in Me tropolitan Unit No. 2), (Three Mile Islanc, Nuclear Sration ALAB-456, 7 NRC 63, 67 n.3 (1978). ,

11/ LEA petition, affidavit of David Spontak.

6-adjudicatery proceedings. As the Court statea in Warth

v. Seldin, 422 U.S. 490, 499 (1975), a party " generally must assert his own' legal rights and interests, and cannot base his claim to relief on the legal rights or interests of third parties." Again, in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166 (1972), the Court stated that a party "has standing to seek redress for injuries done to him, but may

-12/

not seek redress for injuries done to others." -

The other interests expressed in the body of the petition are likewise inadequate. LEA's mere exhibition of 13/

-- i a "special interest" ir, the protection of natural resources is not a basis for intervention because the Supreme Court "has held that an organization's mere interest in a problem,

'no matter how long-standing the interest and no matter how qualified the organization is in evaluating the problem,' is 14/

not sufficient for standing to obtain judicial review."

Further, the interests of LEA's membership as ratepayers are outside the " zone of interests" protected under the Atomic

--12/ In the Transnuclear proceeding, supra, 6 NRC at 531, the Commission adopted the Warth test for standing.

See also Arlington H2ights v. Metropolitan Housing Corp., 429 U.S. 252 (1977); Singleton v. Wulff, 428 U.S. 106 (1976); Broadrick v. Oklahoma, 413 U.S. 601 (1973); United States v. Raines, 362 U.S. 17 (1960).

13/ LEA petition at 1.

14/ Westinghouse Electrical Corp. (Export to South Korea) ,

CLI-80-30, 12 NRC 253, 258 (1980), citing Sierra Club

v. Morton, 405 U.S. 727, 739 (1972).

m -

g 15 /

Energy Act of-1954. Similarly, " decreases in property values during normal ' operations over the life of the plant"'

16/

are excluded from matters which licensing. boards may consider.

17/

These alleged adverse consequences are so " speculative"--

-that they cannot satisfy the injury.in fact requirements.for standing. Such drastic and conjectural changes as petitioner postulates simply need not be considered.

'15 /

-- Portland General Electric Company (Pebble Springs Nuclear Plant, Unite t.and 2), CLI-76-21, 4 NRC 610, 614 (1976) ; Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1) , ALAB-582, 11 NRC 239, 243 n.8 (1980); Public Service Company of Ok1'ahoma (Black Fox, Units 1 and 2), LBP-77-17, 5 NRC 657, 659 (1977), aff'd, ALAB-397, 5 NRC 1143, 1147 (1977) ; Metropolitan Ediscn Company (Three Mile Island

• Nuclear Station, Unit 1) , Docket No. 50-289 (Restart) ,

" Memorandum and Order Ruling on Petitions and Setting

$pecial Prehearing-Conference" (September 21, 1979) ,

(slip opinion at 7) . i 16/ See Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1) , CLI-80-39, 12 NRC 607 (1980)

(2-2 vote). In reconsidering this order, the Commis-sioners voted.to adhere to its previous determination "to exclude psychological stress and community deteriora-tion contentions." -

Id., CLI-81-20 (September 17, 1981)

(slip opinion).

17/ See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 43 (1976); Arlington Heights v. Metropolitan Housing Development Corp. , 429 U.S. 252, 262 (1977); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).

18/ In any event, this economic interest is premised upon a widespread economic downturn within the entire area and, as such, is indistinguishable from those interests shared in substantially equal measure by i all or a large class of the public. Petitioner has therefore failed to "show a distinct and palpable harm" to himself. Transnuclear , Inc., CLI-77-24, 6 NRC 525, 531 (1977).

?

~

8-Further, LEA has failed to comply with the requirement that it designate "the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervane." The aspects designated by peti-tioner merely outline general areas of subject matters which may be cognizable in NRC proceedings. Specific aspects of these areas, however, have not been provided.

Just as a proper designation of " aspects" should be " narrower 20/

than a general reference to (the NRC's) operating statutes,"--

a general reference to the topical headings of the Commission's regulations, more or less taking a " table of contents" ap-proach, is clearly insufficient.

Moreover, petitioner purports to reserve the right to file. contentions beyond the scope of its own designated aspects. Petitioner has not shown that anf such right inheres under the express requirements of 10 C.F.R. 52.714.

To permit the unlimited development of contentions beyond those aspects designated by petitioner itself would render the regulation meaningless. Obviously, the Commission intended that the Board, Staff, Applicant and other parties be given notice at the outset as to the extent of the pro-posed intervention. Also, given the standing requirements l

discussed above, all aspects alleged by petitioner, includ-I l

l ing any contentions thereunder, must necessarily be limited to the demonstrated " injury in fact," if any.

l 19/ 10 C.F.R. 52. 714 (a) (2) (emphasis added) .

l 20/ Consumers Power Company (Midland Plant, Units 1 and 2) ,

LBP-78-27, 8 NRC 275, 278 (1978).

9-As a final matter, petitioner's requect to consider

" aspects" regarding the availability of water supplies related to Limerick may not be heard because this matter lies within the plenary jurisdiction of the Delaware River Basin Commission, see generally Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2),

ALAB-262, 1 NRC 163 (1975) , which has granted final approval 21/

to the supplemental cooling water plans for Limerick.

This action of the DRBC was approved by the United States District Court for the Eastern District of Pennsylvania on August 17, 1981. Moreover, this matter was fully " ventilated and resolved at the construction permit stage" and petitioner has not made "any supported assertion of changed circumstances or ths possible existence of some special public interest factors in the particular case." Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2) , CLI-74-12, 7 AEC 203 (1974).

Conclusion For the reasons more fully discussed above, petitioner has failed to satisfy the requirements for intervention by an organization purporting to represent the personal interests

~~21/ It may be noted that permits related to the Point Pleasant project itself, specifically for the Point Pleasant intake structure and for the Chalfont waste treatment plant, are now pending before the United  ;

States Corps of Engineers.

l 1

i l

l l

l l

l

of its members and has also failed to designate those aspects in which it has such an interest. Accordingly, the petition to intervene should be denied. Applicant has no objection, however, to a limited appearance by petitioner. under 10 C.F.R. 52. 715 (a) .

Respnctfully submitted, CONNER & WETTERHAHN f . .

Troy . onner, Jr.

Mark J. Wetterhahn Robert M. Rader Suite lJ50 i

1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 202/833-3500 Counsel for Applicant October 5, 1981 l

l l

i l

L

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matte of )

)

PHILADELPHIA ~ ELECTRIC COMPANY ) Docket Nos. 50-352

) 50-353 o (Limerick Generating Station, )

Units 1 and 2) )

CERTIFIC?.TE OF SISVICE I hereby certify that copies of " Applicant's Answer l to Limerick Ecology Action Petition to Intervene," in the l

l captioned matter have been served upon the following by l .

deposit in the United States mail this 5th day of October,

1981. A copy of Applicant's answer to the Marvin I. Lewis petition has also been served on petitioner.

l l- Judge Lawrence J. Brenner Alan S. Rosenthal, Esq.

! Chairman, Atomic Safety and Chairman, Atomic Safety and licensing Board Licensing Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 i

Judge Peter A. Morris Eugene J. Bradley, Esq.

Atomic Safety and Licensing 2301 Market Street Enard Philadelphia, Pennsylvania 19101 U.S.; Nuclear Regulato.y Commission Colleen P. Woodhead, Esq.

Washington, D.C. 20555 Office of the Executive j Legal Director i Judge Richard F. Cole U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Mr. Chase R. Stephens, Chief Washington, D.C. 20555 Docketing and Service Branch Office of the Secretary Paul B. Cotter, Jr., Esq. U.S. Nuclear Regulatory Chairman, Atomic Safety and Commission Licensing Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 j l

l l

1 I

r l

r i

, ' Judith A". Dorsey, Esq.

li! Limerick Ecology Action

. 1315 Walnut Street

!- Suite 1632 l Philadelphia,. Pennsylvania 19107 l

j..

N '

A

~

l R6bert M. Rader i

Counsel for the Applicant l

l l

l 1

. _ . - - . - - - - _ - _ , . - - _ ~ - - , - - - - --. . . , .