ML20024D221
| ML20024D221 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 08/02/1983 |
| From: | Wagner M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8308030324 | |
| Download: ML20024D221 (11) | |
Text
,
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of METROPOLITAN EDISON COMPANY, ET AL.
Docket No. 50-289 (SteamGeneratorRepair)
(Three Mile Island Nuclear Station, Unit No.1)
NRC STAFF RESPONSE TO AMENDED PETITION OF LEE, MOLHOLT AND AAMODT FOR LEAVE TO INTERVENE CONCERNING REPAIR OF STEAM GENERATOR TUBES 1.
INTRODUCTION On June 28, 1983 Petitioners Lee, Molholt and Aamodt
(" Petitioners") filed a petition to intervene in connection with a request by GPU Nuclear Corporation (" Licensee") for an amendment to the l
license for Three Mile Island Nuclear Station, Unit 1 ("TMI-1") to
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permit operation using recently-repaired steam generators. The Staff l
opposed that petition in that it did not contain the requisite r
demonstration of Petitioners' interest in thi.s licensing action.M The Staff noted in its pleading that Petitioners might be able to file a new petition taking into account the defects noted by the' Staff.
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If "NRC Staff Response to Request by Jane Lee, Bruce Molholt and Norman Aamodt for Adjudicatory Hearing on Steam Generator Repair Amendment," dated July 20, 1933.
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On July 13, 1983, Petitioners filed an amended petition to intervene inthisproceeding.U For the reasons set forth below, the Staff believes fetitioner Lee has met the interest requirements of 10 CFR 0 2.714 and should be admitted as a party to this proceeding if she submits in a timely fashion at least one litigable contention. The Staff continues to oppose the admission of Petitioners Molholt and Aamodt in that they have not mrde the requisite demonstration of their interest in this licensing action.
II. DISCUSSION A.
Requirements for Requests for Hearing Section 2.714(a) of the Comission's Rules of Practice provides that "[a]ny person whose interest may be affected by a proceeding and who desires to participate as a party shall file a written petition for l
1 eave to intervene." That section enumerates the formal requirements as to what must be set forth in the petition in support of intervention:
The petition shall set forth with particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to intervene, with particular reference to the factors in paragraph (d) of this section, and the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.
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" Amended Petition of Lee, Molholt, Aamodt For Leave to Intervene Concerning Repair of Steam Generator Tubes," dated July 13, 1983.
(Amended Petition). The Amenced Petition was flied with the Comission. By Order of July 15, 1983, the Comission referred the intervention petitions on steam generator repair to the Atomic Safety ar.d Licensing Board for its determination, in the first instance, of petitioners' standing to intervene.
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t Paragraph (d) of Section 2.714 provides:
The.Comission, the presiding officer or the atomic safety and licensing board designated to rule on petitions to intervene and/or requests for hearing shall, in ruling on a petition for leave to intervene, consider the following factors, among other things:
i (1) The nature of the petitioner's right under the Act to be made a party to the proceeding.
(2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding.
(3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
Thus, the pertinent inquiry is whether the Petitioner has alleged an interest which may be affected by the license amendment proceeding.
Where the requisite interest is shown, intervention may be granted as a matter of right. Absent a demonstration of the requisite interest, intervention may be granted in the Comission's discretion.
1.
Interest and Standing for Intervention as a Matter of Right In seeking to detennine whether the requisite interest to support intervention is present, the Commission has held that contemporaneous judicial concepts of standing are controlling. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4. NRC 610, l
613-14(1976). Thus, there must be a showing (1) that the action being challenged could cause " injury-in-fact" to the person seeking to intervene f and (2) that such injury is arguably within the " zone of 3
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" Abstract concerns" or a " mere academic interest" in the matter which are not accompanied by some real impact on a petitioner will not confer standing. See In the Matter of Ten Applications for Low-Enriched Uranium Exports to EURATOM Member Nations, CLI-77-24, 6 NRC 525, 531 (1977); Pebble Springs, CLI-76-27, supra at 613.
Rather the asserted harm must have some particular effect on a l
petitioner, Ten Applications, CLI-77-24, supra, and a petiticner i
must have some direct stake in the cutcome of the proceeding. See 4
et al. (Barnwell Fuel Receiving Allied-General Nuclear Services, W~420, 422 (1976).
l andStorageStation),ALAB-328,3 l
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I interests" protected by the Atomic Energy Act4/ or the National Environmental Policy Act.5/ Id. See also Warth v. Seldin, 422 U.S. 490 fl975); Sierra Club v. Morton, 405 U.S. 727 (1972);
,e Association of Data Processing Service Organizations Inc. v. Camp, 397 U.S.150,153(1970).
The Appeal Board has ruled that the geographical proximity of a petitioner's residence, standing alone, is sufficient to satisfy the interest requirements. Virginia Electric and Power Coinpany (North Anna NuclearPowerStation, Units 1and2),ALAB-522,9NRC54,56(1979).
Though no firm outer boundary for this geographic zone of interest has been detennined, distances of up to 50 miles have been accepted by the Appeal Board as conferring standing upon particular petitioners. See, e.g., Portland General Electric Co. (Trojan Nuclear Plant), ALAB-496, 8 NRC 308 (1978) (40 miles); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 at n.4 (1977); g.
Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-146, 6 AEC 631, 633-34 (1973) (residency within 30-40 miles sufficient to show interest in raising safety questions);
Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 190, 193, reconsideration denied, ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973).
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4f 42 U.S.C. 5 2239 et sea.
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42 U.S.C. I 4321 et seq.
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2.
Requirements for Discretionary Intervention Intervention may also be granted "as a matter of discretion according to specific criteria" to some petitioners who are not entitled b
to intervention as a matter of right. Portland General Electric Company, et al. (Pebble Springs Nuclear plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976).
In Pebble Sorings the Comission delineated these specific criteria as:
(a) Weighing in favor of allowing inMrvention -
(1) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding.
l (3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
(b) Weighing against allowing intervention -
l (4) The availability of other means whereby petitioner's interest will be protected.
i (5) The extent to which petitioner's interest will be represented by existing parties.
(6) The extent to which petitioner's participation will inappropriately broaden or delay the proceeding.
4 NRC at 616.
l The Comission also cautioned in Pebble Springs that the exercise of discretion should be " based on an assessment of all the facts and l
l circumstances of the particular case."
Id. Discretionary intervention d
should oe afforded more readily:
"where petitioners show signtficant ability to contribute on substantial issues of law or fact which will not otherwise be l
properly raised or presented, set forth these matters with suitable specificity to allow evaluation, and demonstrate their importance l
and imediacy, jbstifying the time necessary to consider them."
l 4 NRC at 617.
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k The burden of demonstrating that discretionary intervention is appropria_te in a given case lies with the petitioner. Nuclear Engineering Company,4nc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978).
B.
Evaluation of the Petition Petitioner Lee has made the requisite demonstration of her interest in this proceeding, and should be admitted as a party to this proceeding
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if she submits in a timely fashion at 1 east one litigable contention.
As to Petitioners Molholt and Aamodt, the Amended Petition fails to satisfy the requirements for intervention in that it does not contain the requisite demonstration of Petitioners' interest in this licensing l
i action. Petitioners have not shown that they are entitled to intervention either as a matter of right or as a matter of the l
Comission's discretion.
l 1.
Petitioner Lee The Amended Petition asserts that Petitioner Jane Lee resides within five miles of the TMI-1 facility and operates a dairy farm at that location. Amended Petition at 2.
Generally, the close proximity of a l
petitioner's residence to a facility is presumed sufficient to satisfy the interest requirements of 9 2.714 Armed Forces Radiobiology Research Institute (Cobalt-60StorageFacility),ALAB-682,16NRC150,153-54 (1932); Houstqn Lighting & Pcwer Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 353, citir.g Virginia Electric &
Power Co. (North Anna Nuclear Power Statien, Units 1 and 2), ALAS-522, I
9NRC54,56(1979).
In the past, residential distances of up to 50 miles have been found to be not so great as to necessarily preclude a finding of standing in licensing proceedings. See discussion at p. 4, supra.,
Ms. Lee, residing and operating a business within five miles of TMI-1,
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can be presumed to have an interest that could be affected by the instant proceeding and, thus, to have standing.
2.
Petitioners Molholt and Aamodt The Amended Petition states that "[a]11 three petitioners either reside, conduct business and/or have social contacts within the ten mile radius of TMI Unit 1."
Amended Petition at 2.
As to Petitioner Lee, as stated above, geographic proximity of both residence and business are alleged with some particularity. As to Petitioners Molholt and Aamodt, no similar particulars are set forth.
It is not evident from the Amended Petition that either of these Petitioners either resides or works in the vicinity of TMI-1. Mere allegations of " social contacts" are not adequate to support intervention in a licensing proceeding.
Petitioners Molholt and Aamodt have failed to demonstrate " injury-in-fact" to themselves or that such injury is arguably within the protected " zone of interests." In fact, no injury whatsoever has been alleged. Contrary to the clear requirements of 10 CFR I 2.714(a), the Amended Petition does not set forth with any particularity the interests of these Petitioners, and does not demonstrate how any interest may be affected by the results of the proceeding, including the reasons why they should be permitted to intervene.
Moreover, Petitioners Molholt and Aamodt have not provided sufficient information to demonstrate that discretionary intervention 1 --
' E would be appropriate here. There is nothing set forth in the Amended Petition _which would permit a judgment to be drawn one way or the other as to whether participation by Messrs. Molholt or Aamodt may reasonably
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be expected to assist in developing a sound record. The only information supplied is the educational degrees of Dr. Molholt and Mr. Aamodt and a
- cursory statement of each's interest. Petitioners state they are prepared to present "two expert, independent witnesses," but they do not identify either the names of the witnesses, their expertise, or the subject areas of their testimony. The Staff submits that Petitioners Molholt and Aamodt have failed in demonstrating that discr'etionary interventn is appropriate in this case. The Amended Petition contains insufficient
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infonnation to permit an evaluation of the various criteria delineated in Pebble Springs, supra. The burden of demonstrating that discretionary intervention is appropriate under the particular circumstances presented lies with the petitioners. Sheffield, ALAB-473, supra. That burden has not been carried by Petitioners Molholt and Aamodt here.
In sum, Petitioners Molholt and Aamodt have failed to demonstrate that they have standing to intervene as of right or that their intervention should be permitted as a matter of discretion. The demonstration of a basis for intervention is not a mere procedural nicety but is a requirement of 10 CFR 6 2.714 and established Commission caselaw.6_/
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The Staff would note, however, that, under 10 CFR 6 2.714,
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Petitioners may amend their petition to intervene at any time up to 15 days prior to the first prehearing conference in the proceeding without leave of the presiding officer. Thus, Petitioners herein i
may amend or supplement their Amended Petition in an attempt to l
i demonstrate their interest ard cure the defects noted here. As presently constituted, however, the Amended Petition fails to demonstrate that Petitioners Molholt and Aamedt should be pemitted to intervene.
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III. CO CLUSION For _the foregoing reasons Petitioner Lee has established sta:: ding in this;peaceeding. With the submission of at least one litigable contention in accordance with the requirements of 10 CFR l 2.714, she should be admitted as a party to the proceeding.
Petitioners Molholt and Aamodt have failed to show that they meet the applicable requirements for intervention either as a matter of right or as a matter of the Commission's discretion. Accordingly, they should be denied intervention, without prejudice to their further amending their Amended Petition to demonstrate that they meet the requirements for intervention.
Respectfully submitted,
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Mary i:, Wagne.
Counsel for NRC Staff Dated at Bethesda, Maryland this 2nd day of August, 1983 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CONilSSION
'i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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)l METROPOLITANEDISONCOMPANY,ETAL.h Docket No. 50-289 (SteamGeneratorRepair)
(Three Mile Island Nuclear Station,)J i
Unit No.1)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO AMENDED PETITION OF LEE, MOLHOLT AND AAMODT FOR LEAVE TO INTERVENE CONCERNING REPAIR OF STEAM GENERATOR TUBES" 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 Comission's internal mail system, this 2nd day of August, 1983:
- Sheldon J. Wolfe, Chairman Mr. C. W. Smyth, Supervisor Administrative Judge Licensing TMI-1 Atomic Safety & Licensing Board Panel Three Mile Island Nuclear Station U.S. Nuclear Regulatory Comission P. O. Box 480 Washington, DC 20555 Middletown, PA 17057 Dr. James C. Lamb, III Mr. Thomas Gerusky i
Administrative Judge Bureau of Radiation Protection Department of Environmental Sciences Dept. of Environmental Resources and Engineering P.O. Box 2063 University of North Carolina Harrisburg, PA 17120 Chapel Hill, North Carolina 27514 Bob Stein Director of Research Dr. David L. Hetrick Committee on Energy Administrative Judge Post Office Box 11867 Department of Nuclear Engineering 104 Blatt Building University of Arizona Columbia, South Carolina 29211 Tuscon, Arizona 85721 Douglas R. Blazey, Esq.
Mr. Henry D. Hukill Chief Counsel Department of Environmental Resources Vice President GPU Nuclear Corporation 514 Executive House Post Office Box 480 P. O. Box 2357 Harrisburg, PA 17120 Middletown, PA 17057 1
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Louise Bradford
- Docketing & Service Section Three Mile Island Alert Office of the Secretary 1011 Green Street U.S. Nuclear Regulatory Comissioq Harrisburg, PA 17102 Washington, DC 20555 Ms. Jane 1.e'e Mr. Bruce Molholt
-Jij 183 Valley Road Haverford College Etters, PA 17319 Haverford, PA 19041 i
Mr. Noman Aamodt George F. Trowbridge, Esq.
R.D. #5 Shaw, Pittman, Potts & Trowbridge Box 428 1800 M Street, NW l
Coatesville, PA 19320 Washington, DC 20036 l
- Atomic Safety & Licensing Board Panel
- Atomic Safety & Licensing Appeal U.S. Nuclear Regulatory Comission Board Panel Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 d
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Mary E.
agner Counsel orNRCStjff l
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