ML20011A398
| ML20011A398 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 10/06/1981 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8110090392 | |
| Download: ML20011A398 (12) | |
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9 such Before the Atomic Safety and Licensing Boa R _b l ?.,
In the Matter of
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Philadelphia Electric Company
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Docket Nos. 50-352
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5 (Limerick Generating Station,
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Units 1 and 2)
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0 APPLICANT' S ANSWER TO CONSUMERS EDUCATION-AND cr g I PROTECTIVE ASSOCIATION PETITION TO INTERVENE %*.
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Preliminary Statement On August 21, 1981, the Nuclear Regulatory C f
(" Commission" or "NRC") published a notice in the Federal Register entitled " Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), Receipt of Application for Facility Operating Licenses; Consideration of ~ suance 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 Consumers Education and Protective Association 2/
("CEPA"), dated September 21, 1981.
For the reasons discussed more fully below, petitioner CEPA has failed to satisfy the requirements for organizational J/
46 Fed. Reg. 42557 ( Augus t 21, 1981).
h 2/
The cer'.ificate of service states that the petition was mailed on September 18, 1981.
However, the cover
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letter to the Secretary, the affidavit of CEPA's Executive Director attached to the petition and the petition itself are all dated September 21, 1981.
8110090392 811006 gDRADOCK 05000352 PDR
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standing in an NRC proceeding.
Nor has petitioner identi-fied the." specific aspect or aspects of tLa subject matter
- of'the proceeding" intended to be pursued.
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.
S S 2. 714 (a) (2 ) and (d). have been s&tisfied.
In essence, the regulations require the petitioner _ to state his specific ' interest in the proceed-ing and explain how that interest may be affected by the outcome of the proceeding.
It is now well settled that " organizations
. are not ciothed with independent standing to intervene in NRC licensing proceedings.
Rather, aay 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 oth'er words, an organizational petitioner must establish that at least one of its members has legal standing to inter-vene in this proceeding under the rules applicable to in-dividual petitioners.
As regards the requirements for specifying an indi-vidual's particularized interest in a licencing 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).
o sufficient for intervention, including an explanation of
'how that interest would be affected by any given outcome in. the proceeding, Applicant refers the Licensing Board to its answer to the petition of. Marvin I. Lewis to inter-vene in this proceeding.
This position is equally applicable to the members of petitioner CEPA herein.
Rather than fur-nish the Licensing Board with repetitive pleadings, Appli-cant hereby incorporates its answer to the Lewis petition 4/
in opposing the instant petition.--
The CEPA petition states that the organization's purpose is "to educate the public and its members about t
their rights as consumers and how to best advocate and
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protect those rights." -
CEPA also states that it has
" exhibited a special interest" in the protection of these 6/
rights with regard to the Applicant.
The petition then states that CEPA's membership consists of over 90b indi-viduals and families residing within a mile to 50 miles away from the Limerick facility.
However, the petition is not supported by the state-ment of any CEPA member attesting to this fact or otherwise stating facts sufficient to demonstrate his personal interest in the proceeding.
Instead, the petition simply states in general terms that "(o}peration of the Limerick reactors will 4/
Petitioner herein has been served a copy of Applicant's answer to the Lewis petition.
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CEPA petition at 1.
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Id.
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directly affect members of CEPA in that their health and safety and that their children will be adversely impacted" 7/
by routine and accidental radioactive releases. - Also,
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CEPA's educational activities and its exhibition of a "special interest" in the protection against radiation hazards 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 howl qualified the organization is in evaluating the problem,' is not sufficient for standing to cbtain judicial 8/
review."--
The failure of CEPA to delineate the interests of its members is therefore fatal to the petition.
In the Allens Creek' decision in ALAB-535, the Appeal Board emphasized that the Licensing Board "was not merely entitled but obligated to satisfy itself that there was at least one member of the
[ petitioner organization] with a particularized interest which might be affected by the outcome of the proceeding" and, further, that the Board was not required "to presume that the [ petitioner) had a member with the requisite af-fected interest on the strength of nothing more than the 7/
CEPA petition at 2.
For the reasons stated in Appli-cant's answer to the Lewis petition, Applicant believes that proximity to the f acility and the other generalized interests expressed in the CEPA petition do not establish standing because no particularized, personal interest is demonstrated.
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Westingthouse Electrical Corp. (Export to South Korea),
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CLI-80-30, 12 NRC 253, 258 (1980), citing Sierra Club
- v. Morton, 405 U.S.
727, 739 (1972).
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.o naked' representation in its petition that a certain number J
of [ petitioner's] members reside within 'close proximity' 9/
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to tip site of the proposed facility."--
The Appeal Board explained its rationale as follows:
Although it may be reasonable to suppose that most (porhaps all) e
[ petitioner's] members ahre that dedication as well as subscribe to the general objectives of the orga-nization as spelled out in the peti-l tion, it scarcely #ollows perforce q
that each considers that construc-tion of the Allens Creek facility would invade some personal interest
" arguably within the zone of interests sought to be protected or regulated" l
by either the statutes this Commission enforces or the Constitution.
Insofar i
as we are aware, joining and retaining l
membership in [ petitioner],does not l
signify adherence to any pa'rticular l
views regarding the desirability of l
nuclear power facilities, either from l
a civil liberties standpoint or other-wise.
Nor, more importantly, does there appear to be any necessary link i
between holding (petitiener) membership and possessing an interest which might j
be affected by the construction or l
operation of such a facility.
- Indeed, for all that appears on this record, the personal interests of any particular
[ petitioner] member might be advanced, l
rather than harmed, by the construction l
of Allens Creek - i.e.,
the proposed l
licensing action would cause the member no injury in fact at all.
i Absent disclosure of the na s and ad-dress of one such member, d.. is not possible to verify the assertion that such members exist.
In a footnote in their brief, the amici curiae endeavor to brush this consideration aside by noting that the veracity of [ petitioner's]
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ALAB-535, 9 NRC at 391-92.
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allegat$dn that it has nearby members that has never been challenged and, were s
it to be, the Board below could require a (petitionerj officer to submit an af-5 w!idavit attesting to the truthfulness of the allegation.
What this line of t'
Isasoning ignores is that both the Board s.. and the other parties were entitled to be provided with. sufficient information to
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enable them to determine for themselves, by independent inquiry if thought warranted, whether a basis existed for a formal chal-lenge to the truthfulness of the assertions in [ petitioner's] petition.
Beyond that, we are unprepared to accept amici's im-plicit thesis that standing may be es-tablished by means of an affidavit which makes conclusory assertions not susceptible of verification by either other litigants or the adjudicatory tribunal.
We know of no authority for such a novel and unat-tractive proposition, which to us runs counter to fundamental concepts of prn-cedural due process.
10/
Because petitioner in Allens Creek did not satisfy this requirement, its petition to intervene was denied.
The same approach has been taken in a number of other licensing cases.
For example, in the Enrico Fermi proceed-ing, the Board stated that an organization which seeks to intervene on the basis of the interest of its members "must identify specifically the name and address of at least ena
~~10/ Id. at 392-93 (footnote and citations omitted) (em-piasis in original).
As with petitioner in Allens Creek, "[i]nsofar as we are aware, joining and re-taining membership in [CEPA) does not signify ad-herence to any particular views regarding the de-s: rability of nuclear power facilities Id.
at 392.
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affected member who wishes to be represented by the organi-
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11 zation." ~
In Waterford, the Board similarly stated that institutional standing requires the representative to demon-strate that at least one of itsemembers has satisfied the-
" injury in fact" and " zone of interest" tests and has at least implicitly authorized the organization to represent 12/,
his interests.
More recently, the Licensing Beard in the Perry proceeding also stated the requirement that petitionc for intervention "be accompanied by one or more affidavits stating the place of residence of members on when. standing is based and stating that the organization is authorized to
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, represent the, member's interests."--
In ti e Big Rock Point proceeding, the Licensing Board held t' hat intervention must be denied because the organiza-tion had failed to identify specific members by name and address, provide a statement by such members authorizing the organization to represent it, and provide a statement of the member's interests "hich would be affected by the 14/
propoced action.--
And in Comanche Peak, the Licensing 11/
Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1,'9 NRC 73, 77 (1979).
a 12/
Louisiana Power and Light Companv (Waterford Steam Elec-trical Station, Unit 3), Docket No. 50-382, " Memorandum and order" (March 7, 1979) (slip opinion at 4).
13/
~~ ' Cleveland Electric Illuminating Company (Perry Nuclear 1
Power Plant, Units 1 an d 2 ), Docket Nos. 50-4'40 and 50-441,
" Memorandum and Crder Scheduling Prehearing Conference Re-garding Petitions for Intervention" (April 9, 19 81) (slip opinion at 6).
14/
Consumers Power Company (Big Rock Point Nuclear Plant),
Docket No. 50-155, " Memorandum and Order" (September 25, 1979) (slip opinien at 4).
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Board' reiterated that while an organization can establish standing through its members whose interests may be af-fected, "the specific members must be identified, how their interest may be affected must be shown, and the member's authorization to the organization must be stated.
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m Accordingly, the unsupported and conclusionary representa-tion by CEPA's counsel that its membership possesses the requisite personal interest necessary for intervention, merely on the basis of CEPA's "special interest" in certain areas, is insufficient as a matter of law for intervention.
As a consumer-oriented organization, CEPA apparently posits its standing in part upon the status of its members as ratepayers.
However, such concerns are outside the " zone 16/
of int'erests" under the operating statutes of the NRC.
~~
Finally, CEPA has failed to comply with the requirement under the rules for intervention that it designate "the
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Texas Utilities Generating Company (Comanche Peak Steam Elec,tric Station, Units 1 and 2), LBP-79-18, 9 NRC 728, 729 (1979).
t
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Portland General Slectric Company (Pebble Springs Nuclear Plant,1 Units 1 and 2), CLI-76-27, 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 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.No. 1), Docket No. ~0-289 (Re-start), " Memorandum and Order Ruling on Petitiors an,d Setting Special Prehearing Conference" (Seotember 21, 1979) (slip opinion at 7).
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q specific aspect or aspects of the subject matter cf the
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proceeding as to which petitioner wishes to intervene." -
The itemr. designated by CEPA merely outline the most general of subject areas by means of a " table of contents" approach.
These items are entirely too vague to meet the express standard of specificity under 10 C.F.R. S2. 714 (a) (2).
- Also, given the standing requirements discussed above, all aspects alleged by petitioner, including any contentions thereunder, must necessarily be limited to the demonstrated " injury in fact," if any.
Sone of the aspects alleged are beyond the jurisdiction of the Board.
Thus, petitioner's request to consider
" aspects" regarding the availability of water supplies relate'd to Limerick may not be heard because this matter n
Jies 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 to the supplemental cooling water plan for Limerick. --18/ This action of the DRBC was approved by the United States District Court for the Eastern District of Pennsylvania on August 17, 1981.
Morebver, this matter was fully " ventilated and re#
solved at the construction permit stage" and petitioner has 17,/
10 C.F.R.
S2. 714 (a) (2) (emphasis. added).
--18/
It may be noted that permits related to the Point Pleasant project itself, specifically for the Point g
Pleasant intake structure and for the Chalfont waste treatment plant, are now pending before the United States Corps of Engineers.
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4 not made "any supported assertion of chanced circumstances or the'possible existence of some special public interest
' factors in the particulcr case."
Alabama Power Comoany (Joseph M. 'Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC 203-(1974).
Conclusion Fcr the reasons discussed more fully above, petitioner has failed-to satisfy the requirements for intervention by et an organization purporting to represent the personal interest of its members and has also failed to designate those aspects of the subject matter in which petitioner has such an interest.
Accordingly, the petition to intervene should be denied.
Applicant has no objection, however, to a limited appearance by petitioner pursuant to 10 C.F.R. 52. 715 (a).
Respectfully submitted, CONNER & WETTERHAHN
(
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YL^tlk-Troy
.nner, Jr.
3' Mark J. Wetterhahn, Robert M.
Rader e
Suite 1050 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 202/833-3500 Counsel for the Applicant October 6, 1981 h
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' UNITED' STATES..OF AMERICA i
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NCCLEAR REGULATORY COMMISSION
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Inlthe Matter of.
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_ PHILADELPHIA ELECTRIC COMPANY
) Docket-Nos. 50-352
)
50-353
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(I.imerick Generating Station,
)
Units'l and~2)
)
e CERTIFICATE OF SERVICE I-hereby certify that copies of " Applicant's Answer to Consumers Education and Protective Association' Petition r.
1 to' Intervene," in the captioned matter have been served
.upon the'following by deposit in the, United states mail this-6th day of October, 1981.
A copy of Applicant's answer to the Marvin I. Lekis petition has also been served on petitioner.
e Judge Lawrence J.
Brenner Alan S.
Rcsen:nal, Esq.
Chairman, Atomic Safety.and Chairman, Atcmic Safety anc 5
Licensing Board
- Licensing Appeal Board U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission s
i Washington, D.C.
2055,5 Washington, D.C.
20555 e.
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.
7, Washington, D.C.
20555 Office of the Executive Legal Director 4
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Judge Richard F.
Cole '
U.S. Nuclear Regulatory
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Atomic Safety and Licensing Commission Board Washington, D.C.
20555s s t
yp0.S. Nuclear Regulatcry
~
Commission Mr. Chase R.
Stephens, Chief
~
D.C.
2055'5 D'ocketinc and Service Branch Washington, Office of the Secretary
+ '. Paul B.
Cottct, Jr.,
Esq.
U.S.
Nuclear Regulatory Chairman, Atomic Sa(ety and Commission 4
Washington, D.C.
20555 Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 a
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Steven P.
Hershey, Esq.
Community Legal. Services, Inc.
- Consumers Education &' Protective Association-Sylvan House Juniper and Locust Streets Philadelphia, Pennsylvania 19107 e
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Robert M.
Rader Counsel for the Applicant J
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