ML20011A382

Answer Opposing Rl Anthony & Friends of the Earth 810918 Petition to Intervene.Petitioner Failed to State Requisite Personal Interest of Members in Outcome.Certificate of Svc Encl

ML20011A382
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 8110090374
Download: ML20011A382 (11)

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UNITED STATES OF AMERICA [, 3 NUCLEAR REGULATORY COMMISSION ~ g#rgf gy ,

Before the Atomic Safety and Licens'inc Boa: h In the Matter of )

) N Philadelphia Electric Company ) Docket Nos. 50-352 (Limerick Generating Station, )

Units 1 and 2) /,s'

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APPLICANT'S ANSWER TO ROBERT L. ANTHONY lpj 4,4007 T1 g

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AND FRIENDS OF THE EARTH PETITION TO INTERVERE ,, g ,j Preliminary Statement / /

OK U On August 21, 19 81, the Nuclear Regulatory Comm 1N

(" Commission" or "NRC") published a notice on the Federal Register entitled " Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), Receipt of Application for Facility Operating Licenses; Consideration of Issuance 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 Robert L. Anthony, on his own behalf and as a representative of Friends of the Earth (" FOE"), dated September 18, 1981. Attached to the petition was a letter to the NRC from Kathleen O' Leary, Chairperson, Friends of the Earth in the Delaware Valley regarding the representation of FOE in this proceeding. A list of proposed contentions was also attached.

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1/ 46 Fed. Reg. 42557 (August 21, 1981). 5;[

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l 8110090374 811005 l PDR ADOCK 05000352 O PDR

I, o For the reasons discussed more fully . below, petitioner

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i, FOE has failed to state the requisite personal interest

.for intervention in an NRC proceeding. Accordingly, the petition should be denied.

Argument Under the Commission's Rules of Practice, a petition to intervene in a licensiny proceeding may be granted only if the requirements of 10 C.F.R. SS 2. 714 (a) (2 ) and (d) have been satisfied. In essence, the regulations require the petitioner to state his specific interest in the proceeding and explain how that interest may La 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 Generating Station, Unit 1), ALAB-535, 9 NRC 377, 390 (1979). --3/

In other words, an organizational petitioner must establish that at least one of its members has legal standing to

--2/ Inasmuch as the positions of FOE and Mr. Anthony appear to be equivalent, we assume that Mr. Anthony wishes to be designated the " sole spokesman." We shall therefore refer to FOE as the " petitioner" except when Mr. Anthony is specifically mentioned.

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

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 in-dividual petitioner's identifiable interest in a licensing proceeding, including an explanation of how that interest would be affected by any given outcome in the proceeding.

This position is equally applicable to the form af fidavits of petitioner's . members herein. Rather than furnish the Licensing Board with repetitive pleadings, Applicant here-by incorporates and respectfully refers the Board to its answer to the Lewis petition for a statement of the ad-ditional authorities upon which it relies in opposing the 4/

instant petition.-~

FOE states that it is "a national environmental and i

conservation public-interest organization dedicated to the protection of U.S. citizens' laws, health and well-being,"

and that the Delaware Valley branch c ? FOE serves these goals for that region. FOE states that it is "in a unique position because of its national connections and local expertise to call upon legal, technical and other profes-

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sional experts.

On his own behalf, petitioner Anthony states that he and his wife hold jobs in Chester County which "could be

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

_5/ FOE petition at 1.

~ . drastically changed by the operation of the Limerick nuclear pl an ts . " He believes that "(flunds from community campaigns could be cut because of increases in electric rates and the

. movement of families from the-county; the number of young people in -residential treatrent from out of state could be sharply - cut by fear on the part of agencies and parents .to

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l Place young patients within fif teen miles of the plants.

He also states that he lives 25 miles from the Limerick l facility.

l The petition is accompanied by a number of affidavits using the same or nearly the same format from a number of individuals who live 4 to 25 miles from the Limerick plant.

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They state essentially that the affiant'is a customer of the applicant and opposes issuance of licenses for the Limerick reactors because "they will adversely affect my health, well being, and economic security." Each affiant then states that he wishes to have his interests represented by Mr. Anthony as the representative of FOE.

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For the reasons prevmly stated,- Applicant has taken the position that mere proximity to a nuclear facility, without more, is not a sufficient basis for standing in an NRC licensing proceeding under the decisions of the Commis-l sioners and judicial precedents they have adopted as the Commission's law on standing. The form affidavits submitted 1 6/ Id.

_7/ See Applicant's answer to the Lewis petition.

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with the FOL. petition vividly demonstrate the invalidity of making mere proxinity to a reactor the sine cua non of standing. As noted, these 'affiants merely state in the most conclusionary terms possibl.e that the Limerick reactors "will adversely affect my health, well being, and economic

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security." Moreover, none of these affiants even states that he or she is a member of FOE. Thus, these affidavits

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cannot create derivative standing for FOE.

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8/ Of course, certain economic interests are beyond the scope of the operating statutes of the NRC. For ex-ample, ratepapers lack standing to litigate possible increases in electric power rates. Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614 (1976); Houston Lichtina and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, l 243 n.8 (1980); Public Service Company of Oklahoma (Black Fox, Units 1 and 2), LBP-77-17, 5 NRC 657, 659 (1977), aff'd, ALAB-397, 5 NRC 1143, 1147 (1977);

Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1) , Docket No. 50-289 (Restart), " Memo-randum and Order Ruling on Petitions and Setting Special Prehearing Conference" (September 21, 1979)

(slip opinion at 7).

Also, the Appeal Board has held that licensing boards "are not authorized . . . to require an applicant to accept or reject an alternative svlely on the basis of its economic costs" because this is a business judgment for the applicant. Illinois Power Company (Clinton Power Station, Unit Nos. 1 and 2), ALAB-340, 4 NRC 27, 48 (1976). See also Consumers Power Comoany (Midland Plan t , Units 1 and 2), ALAB-458, 7 NRC 155 (1978);

Portland General Electric Company (Trojan Nuclear Plant) ,

ALAB-531, 9 NRC 263 (1979); Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 456 (1980).

9/ See Ho'Iston Lichtinc and Power Company (Allens Creek l Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC ]

377, '32-93 (1979); Detroit Edison Company (Enrico '

Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC (Footnote _9/ continued on next page) l l

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The other interests stated by petitioner Anthony are equally generalized or otherwise- invalid. Petitioner s,

apparently believes that the licensing of Limerick would lead to a loss of psychiatric patients. However, community reaction to the operation of a nuclear facility is simply not within the " zone of interests" cognizable under the 10/

operating statutes of the NRC. Further, the adverse 11/

consequences to petitioner's earnings are so " speculative"--

that they cannot satisfy the injury in fact requirements for standing. Such drastic and conjectural changes as petitioner

_9,/ (con tinued) 73, 77 (1979); Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-79-18, 9 NRC 728, 729 (1979); Louisiana Power and Light Company (Waterford Steam Electrical Station, Unit 3), Docket No. 50-382, " Memorandum and Order" (March 7, 1979) (slip opinion at 4) ; Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), Docket Nos. 50-440 and 50-441, " Memorandum and Order Scheduling Prehearing Conference Regarding Petitions for Intervention" (April 9, 1981) (slip opinion at 6) ; Consumers Power Company (Big Rock Point Nuclear Plant) , Docket No. 50-155, " Memorandum and Order" (September 25, 1979) (slip opinion at 4) .

--10/ The Commission has determined that psychological stress shall not be considered in reactor licensing proceedings. See Metropolitan Edison Company , CLI-80-39, 12 NRC 607 (19 80) (2-2 vote) . In reconsidering this order, the Conmissioners voted to adhere to its previous determination "to exclude psychological y stress and community deterioration contentions. "

Id., CLI-81-20 (September 17, 1981) (slip opinion at 2) .

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

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_ postulates are simply inappropriate for consideration. In' any event, this economic interest is premised upon'a wide '

spread economic downturn within the entire area and, as such, is indistinguishable from those interests shared in substantially equal measure by all or a large class of the

_ public. Petitioner has therefore' failed to "show a dis-Transnuclear, Inc.,  ;

tinct and palpable harm" to himself.

CLI-77-24, 6'NRCf525, 5311(1977). ~

In'short, while FOE contends that it possesses or may- ,

call upon certain legal and technical expertise, standing does not exist in the absence of a direct, personal injury to its members. In this respect, the Commission noted the Supreme Court "has held that an organization's mere interest

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in a problem, 'no matter how long-standing the interest and no matter how qualified the organization is in evaluating the problem,' is not sufficient for standing to obtaib judicial review."

Finally, the " injury in f act" requirement under the rules for intervention also bear upon the duty of a pet.i-tiener to designate "the specific aspect or aspects of- the subject of the proceeding as to which petitioner wishss to ,

intervene."-~13/Petitioner has chosen to attach its proposed w

~~12/ Westinghouse Electrical Corp. (Export'to South Korea),

CLI-80-30, 12 NRC 253, 258 (1990), citing Sierra Club i

v. Morton, 405 U.S. 727, 729 (1972). q

'- i 13/ 10 C'.F.R. 52. 714 (a) (2) .

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conten3 tons-to'the. petition instead. 'Given the standing riquirergnts discbssed above, all aspects alleged by peti-Ny ti' oner,"einclyding :any contentions thereunder, must neces-sarily be limited to the demonstrated " injury in fact," if P.-

any. -,

z As a. final matter, petitioner's request to consider

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, " aspects" regarding the availability of water supplies

{ related .ne ick may not be heard because this matter lies witltin the. plenary jurisdiction of the Delaware River 23asin Ccomission, see generally Philadelphia Electric Company (Limerick Generating Station , Units 1 and 2),

, ALAB-26 , 1lHRC'l63 (1975), which has granted final approval 15/'

to the supplemental cooling water plan for Limerick. --

This action of the DRBC was approved by the United States District Court for the Eastern District of Pennsylvania on August 17, s , 1081. Moreover, this matter was fully " ventilated and re-s solved at thc construction permit stage" and petitioner has

c. not made "any supported assertion of changed circumstances or the pocs[ Ele existence of some special public interest factors inb.he particular case." Alabama Power Comoany (J'oseph M. Earley Nuclear Plant, Units 1 and 2) , CLI-74-12, r

7 AEC 203 (1974).

x 14/ As noted at pages 2-3 of Applicant's answer to the

Lewis petition, Applicant will reply to the contentions at a later date.

15/ 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

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now pending before the United States Corps of Engineers.

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. J Conclusion

," For the reasona discussed.more fully tbove, petitioner has f ailed to satisfy the requirements for intervention in

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L an NRC proceeding as applied to organizations because it has failed to establish the personal interests of its members in the outcome of'the proceeding. Accordingly, the petition to intervene should be denied. Applicant has no objection, t however, to a limited appearance by petitioner pursuant to '

10 C .F. R. 5 2. 715 (a) .

Respectfully submitted, CONNER & WETTERHAHN f A '

Tro Conner, Jr.

Mark J. Wetterhahn Robert M. Rader Suite 1050 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 202/833-3500 Counsel ror the Applicant October 5, 1981 J

m UNITED STATES 01 AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

CERTIFICATE OF SERVI _CE I hereby certify that copies of " Applicant's Answer to Robert L. Anthony and Friends of the Earth Petition to Intervene, in the captioned matter have been served upon the following by 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.

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

Atomic Safety and Licensing 2301 Market Street Board Philadelphia, Pennsylvania 19101 U.S. . Nuclear Regulatory Commission Colleen P. Woodhead, Esq.

Washington, D.C. 20555 Office of the Executive Legal Director 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 Servi:e 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 Washington, D.C. 20555 I

E 2-t Robert L. Anthony Friends of the Earth 103 Vernon Lane Dox 186 Moyland, Pennsylvania 19065 b >

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Robert M. Rader Counsel for the Applicant

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