ML20028A016
| ML20028A016 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 11/12/1982 |
| From: | Mcgurren H, Swanson D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20028A008 | List: |
| References | |
| ISSUANCES-OLA-2, NUDOCS 8211160268 | |
| Download: ML20028A016 (17) | |
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11/12/82 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of VIRGINIA ELECTRIC AND POWER COMPANY
)
Docket Nos. 50-338 OLA-2
)
50-339 OLA-2 (North Anna Nuclear Power Plant
)
Units 1 and 2)
)
Expansion of Spent Fuel Pool RESPONSE OF THE NRC STAFF TO PETITIONS FOR LEAVE TO INTERVENE FILED BY LOUISA COUNTY AND CITIZENS I.
INTRODUCTION On September 22, 1982, the Nuclear Regulatory Comission published in the Federal Register (47 Fed. Reg. 41893) a " Proposed Issuance of Ammendments to Facility Operating Licenses," to permit the expansion of fuel storage capacity for North Anna Units 1 and 2.
Th's Notice directed that petitions for leave to ir.tervene in the above proceeding must be filed on or before October 22, 1982. On October 22, 1982, two petitions for leave to intervene were filed by 1) the County of Louisa, Virginia and the Board of Supervisors of the County of Louisa ("Louisa County")
and 2) Concerned Citizens of Louisa County (" Citizens"). Louisa County's petition for leave to intervene also contained a request that this proceeding be consolidated with another separate proceeding concerning the amendment of the North Anna Units 1 and 2 operating licenses to permit the receipt and storage of spent fuel assemblies from Surry Power G
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Station, Units 1and2.E See Federal Register Notice dated September 22, 1982 (47 Fed. Reg. 41892). The Staff's responses to these petitions and Louisa County's request for consolidation are set forth below.
II. DISCUSSION A.
" Interest" Requirements for Intervention Pursuant to 10 C.F.R. 5 2.714 As stated in the Federal Register Notice (47 Fed. Reg. 41894) the Commission's regulations require that a petitioner for leave to intervene sut,mit a written petition setting forth with particularity the petitioner's interest in the proceeding, how that interest may be affected by the results of the proceeding, including the reasons why the petitioner should be permitted to intervene. 10 C.F.R. $ 2.714(a)(2).
This section also requires the peition to make particular reference to the factors in 10 C.F.R. 5 2.714(d) which are as follows:
1)
The nature of the Petitioner's interest under the Atomic Energy Act.
2)
The nature of his property, financial or other interest in the proceeding, and 3)
The possible effect of an order in this proceeding on Petitioner's interest.
In determining whether the foregoing requirements have been satisfied, the Commission has ruled that contemporaneous judicial concepts of l
l If In addition, Louisa County requested that two other matters be consolidated into the same proceeding:
(1) the matter of shipment of Surry spent fuel to North Anna and (2) the matter of expansion of the North Anna Unit 3 fuel pool. As discussed, infra, these matters are not the subject of noticed proceedings.
I standing should be applied in NRC licensing proceedings. Portland General Electric Co.
(Pebble Springs Nuclear Diant, Units 1 and 2),
CLI-76-27, 4 NRC 610, 613-14 (1976).
A T,
- epts require a showing that the action being challenged could cause injury in fact 2/ to the person seeking standing, and that such injury is arguably within the
" zone of interest," protected by the Atomic Energy Act or the National Environmental Policy Act.
- 11. See also, Warth v. Seldin, 422 U.S. 490 (1975);SierraClubv.Morton,405U.S.727(1972); Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153 (1970).
The Commission and Appeal Board have ruled that a ratepayer's interest is not within the " zone of interests" to be protected or regulated by either the Atomic Energy Act or the National Environmental Policy Act. See Pebble Springs, CLI-76-27, supra at 614; Kansas Gas and Electric Co et al. (Wolf Creek Generating Station, Unit No.1), ALAB-424, 6 NRC 122, 128 (1977).
However, the Appeal Board has stated that alleged economic harm does come within the ambit of the NEPA " zone of interests" "... [only] if it-is environmentally related; i.e., if it will or may be occassioned by the impact that the Federal action under consideration would or might have l
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" Abstract concerns" or a " mere academic interest" in the matter which are not accompanied by seme real impact on a petitioner will l
not confer standing.
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 petitioner, Ten Applications, CLI-77-24, s~upra, and a petitioner must have some direct stake in the outcome of the proceeding. See Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station),
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ALAB-328, 3 NRC 420, 422 (1976).
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upon the environment." Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1and2),ALAB-4135NRC1418,1<21(1977).
The Appeal Board has held that the geographical proximity of petitioner's residence to the facility standing along is sufficient to satisfy the interest requirements of 10 C.F.R. 5 2.714, although it was noted that the petitioner had asserted a causal relationship between the proposed action and petitioner's well-being. Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2),
ALAB-522, 9 NRC 54, 56 (1979) (citing, Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 223-24 (1974)).
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., Watts Bar ALAB-413, 5 NRC at 1421; E. Virginia Electric & Power Co.
(North Anna Power Station, Units 1 and 2), ALAB-146, 6 AEC 631, 633-34 (1973); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 190, 193, aff'd, CLI-73-12, 6 AEC 241 (1973), reconsid. den. ALAB-110, 6 AEC 247.
An organization may gain standing to intervene based on injury to itself. Ten Applications, CLI-77-24, supra at 531.
If the organization seeks standing on its own behalf, it must establish that it will be injured and that the injury is not a generalized grievance shared in l
substantially equal measure by all or a large class of citizens.
Id. On the other hand, an organization may gain standing as the representative of members of the organization who~have interests which may be affected by the outcome of the proceeding.
Public Service Co. of Indiana (Marble l
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Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976). At the same time, when an organization claims that its standing is based on the interests of its members, the organization must identify specific individual members whose interests might be affected by the proposed action, describe how the interests of each of those members might be affected and give some concrete indication that such members wish to have their interests represented in the proceeding. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-535, 9 NRC 377, 396 and 397 (1979); Barnwell, ALAB-328, supra note 4, at 422-423; Public Service Electric & Gas Company (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 488-489 (1973);
Duquesne Light Company (Beaver Valley Power Station, Unit 1), ALAB-109, 6 Aec 243, 244 at n.2 (1973). Representational authorization of an organization's members may be presumed where the sole or primary purpose of the petitioning organization is to oppose nuclear power in general or a particular facility. Allens Creek, ALAB-535, supra at 396.
Finally, groups may not represent persons other than their own members, and individuals may not assert the interest of other persons.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-77-11, 5 NRC 481, 483 (1977); Watts Bar, ALAB-413, supra at 1421; l
Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit No. 2),
i ALAB-470, 7 NRC 473, 474 n.1 (1978). There is, under the Atomic Energy Act and the Commission's regulations no provision for private attorneys general. Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), ALAB-333, 3 NRC 804, 806 n.6 (1976); Long Island Lighting Company, LBP-77-11, supra at 483.
2.
Petitioners Must Meet the " Aspect" Requirements bf 10 C.F.R. 9 2.714 In addition to demonstrating " interest", a petitioner must set forth "the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene." 10C.F.R.92.714(a)(2).3/
While there is little guidance in NRC case law as to the meaning of
" aspect" as the term is used in 10 C.F.R. 5 2.714, it appears that a petitioner may satisfy this requirement by identifying general potential effects of the licensing actions or areas of concern which are within the scope of matters that may be considered in the proceeding. See North Anna, ALAB-146, supra at 633; Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), Licensing Board " Memorandum and Order Ruling on Petitions and Setting Special Prehearing Conference", dated September 21, 1979, slip. op. at 6 (unpublished Order).
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10 C.F.R. 5 2.714 also requires the petitioner to file "...a supplement to his petition to intervene which must include a list of the contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity". This section further provides:
"A petitioner who fails to file such a supplement which satisfies the requirements of this paragraph with respect to at least one contention will not be permitted to participate as a party." The NRC Staff will respond to the contentions set forth in any supplements after their receipt.
Accordingly, nothing said herein by the Staff regarding a petitioner's " aspects" is intended to apply in any way to a petitioner's satisfaction of the 10 C.F.R. 5 2.714 contention i
I requirements.
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III. NRC Staff Response to Petitions for Leave to Intervene A.
The Petition of Concerned Citizens of Louisa County to Intervene Establishes this Organization's Standing to Intervene in this Proceeding Concerned Citizens of Louisa County (Citizens) has petitioned for leave to intervene as a representative of its members who they allege reside within 20 miles of the North Anna facility and are concerned about the threat to their health and safety posed by the facility. Petition at 2.
The petition specifies the names of several of its members indicating the town in which they reside and the distance of the town from the plant. Petition at 2 and 3.
Based on the Petiticn it appears that all of the named individuals reside in " geographical proximity" to the North Anna Units.
Id. Since one of the primary purposes of organizing Citizenswas"toassurethattheplantisoperatedsafely,"S/ it can be inferred that the named members have implicitly authorized Citizens to represent their personal interests which might be affected by the pro-ceeding. Allen Creek, ALAB-535, supra at 396. Accordingly, the Petitien has established the standing of Citizens to intervene in this proceeding as the representative of its members who have interests which may be affected by the outcome of the proceeding.
As discussed above, in addition to establishing " interest" the Petition must also set forth "the specific aspect or aspects of the l
subject matter of the proceeding as to which petitioner wishes to intervene." Citizens has not set forth " aspects" but has listed six l
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Petition at 2.
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contention,s which it states it intends to supplement. Citizens' Petition at 4.
However, these contentions identify several aspects of the subject matter of the proceeding as to which intervention is desired. One of these contentions (Contention 6) concerns the aspect of need for preparation of an environmental impact statement for the proposed action.
Aspects concerning the adequacy of the environmental impact appraisal for the proposed action relate to the subject matter of the proceeding.
Accordingly, the Petition has satisfied the " aspects" requirement of 10 C.F.R. 5 2.714(a)(2). The Staff, however, takes no position on whether the assertions made by Citizens in its Petition are sufficiently precise and have the requisite basis to be considered litigable conten-tions under the Commission's regulations. Nor does the Staff take a position regarding the relevancy of proposed contentions 1-5 to this proceeding. The Staff submits that these " aspects" can be better responded to when they are converted to final proposed contentions by Citizens.E Section 2.714(b) of 10 C.F.R. allows a petitioner to supplement its petition to intervene up to 15 days prior to the first prehearing conference to include a list of contentions which it seeks to have litigated in the proceeding. A date certain for a prehearing conference has not yet been set and Citizens intends to amend and/or supplement its 5/
The Staff notes that the aspects set forth in contention 3 concern, in essence, environmental issue that were litigated and resolved before the operating license was issued to the Surry Power Station.
Such relitigation is not required by NEPA and is beyond the scope of this proceeding. Northern States Power Co.
(Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 46 n.4 (1978);
Portland General Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 266 n.6 (1979).
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Petition before such a conference is held. Citizens Petition at 4.
The Staff will at that time respond to contentions filed in a supplemental petition or, absent such a supplement, will respond to the assertions made in the instant Petition to Intervene.
In sum, it is the Staff's position that Citizens has satisfied the
" interest" and" aspects" requirements of 10 C.F.R. 5 2.714 and, accordingly, has established standing to intervene in the instant proceeding.
B.
The Petition of Louisa County to Intervene Establishes its Standing to Intervene in this Proceeding The County of Louisa, Virginia and the Board of Supervisors of the County of Louisa, Virginia ("Louisa County") satisfies the " interest" requirement of 10 C.F.R. 5 2.714 based on its assertion that the Board of Supervisors of Louisa County "is responsibile for protecting the well-being of the inhabitants, property and environment of Louisa County",
that North Anna Power Station is located in Louisa County and that its citizens "will experience most directly any adverse economic, health and safety, or environmental consequences flowing from a Commission decision to allow expansion of the North Anna pool". Louisa Count 9 Petition at 2.
Due to the " geographical proximity" of the citizens of Louisa County to the North Anna Pcwer Station and Louisa County's stated concern about the health and safety of the citizent due to the proposed action, it is the Staff's position that Louisa County has stated a requisite " interest" in accordance with 10 C.F.R. $ 2.714.. North Anna, ALAB-522, supra.
With regard to the " aspects" requirement of 10 C.F.R. 5 2.714, Louisa County asserts a concern about the scope of the action being
considered in the environmental impact appraisal. Louisa County Petition at 8.
This concern is also reflected in one of several contentions that are set forth in the Petition. Louisa County Petition (Contention 2) at 9 and 10. Aspects concerning the adequacy of the environmental impact appraisal for the proposed action relate to the subject matter of the proceeding. Accordingly, it is the Staff's position that Louisa County has satisfied the " aspect" requirement of 10 C.F.R. 5 2.714(a)(2). The Staff, however, takes no position on whether the assertions made by Louisa County in its Petition are sufficiently precise and have the requisite basis to be considered litigable contentions under the Commission's regulations. Nor does the Staff take a position regarding the relevancy of the rest of the proposed contentions. The Staff submits that these " aspects" can be better responded to when they are converted to final proposed contentions by Louisa County.
Section 2.714(b) of 10 C.F.R. allows a petitioner to supplement its petition to intervene up to 15 days prior to the first prehearing conference to include a list of contentions which it seeks to have litigated in the proceeding. A date certain for a prehearing conference has not yet been set and Louisa County indicated that it will supplement I
its Petition before such a conference is held. The Staff will respond to contentions filed in a supplemental petition or, absent such a supplement, will respond to the assertions made in the instant Petition to Intervene.
In sum it is the Staff's position that Louisa County has satisfied the
" interest" and " aspects" requirements of 10 C.F.R. 5 2.714 and, accordingly, has established standing to intervene in the instant proceeding.
IV. NRC Staff Response to Louisa County's Request for Consolidation In its petition, Louisa County also requests the consolidation into one proceeding: 1) the matter of expansion of the North Anna Units 1 and 2 fuel pool, 2) the matter of storage of Surry spent fuel at North Anna, 3) shipment of Surry spent fuel to North Anna, and 4) expansion of the North Anna Unit 3 fuel pool. Louisa County Petiton at 14.
The Staff is supportive of consolidation of proceedings, consistent with 10 C.F.R. 9 2.716, whenever such action will be conducive to the proper dispatch of the business of the Board and to the end: of justice and will be conducted in accordance with the other provisions of 10 C.F.R. Part 2, Subpart G.
In this proceeding, it may well develop that consolidation of the two noticed proceedings is appropriate.
However, the Staff submits that it would be premature to consolidate the two proceedings until it has been determined by the Board that hearings will be held in each proceeding and that the intervenors and/or the final l
admitted contentions in each matter are sufficiently similar that consolidation would be appropriate. Such a finding could not be made until the petitioners have submitted their final proposed contentions and the Board has ruled on their admissibility. Accordingly, the Staff i
l submits that consolidation of the two noticed proceedings, involving proposed amendments to the North Anna Units 1 and 2 operating licenses to permit expansion of the spent fuel pool for the two units and to permit the receipt and storage of spent fuel assemblies from the Surry Power Station, should be deferred until the Board has ruled on requests for hearing, intervention and contentions in the two matters.
l However, there is no proceeding which has been noticed to specifically
consider the matter of shipment of Surry s pent fuel to North Anna or the expansion of the North Anna Unit 3 fuel pool. Further, these issues do not have any bearing on the licenses for North Anna Units 1 and 2, which are the subject of the Federal Register notices. Accordingly, consolidation of these matters is not possible as they are beyond the scope of this noticed proceeding and therefore are not " proceedings" within the meaning of 10 C.F.R. 5 2.716 which can be consolidated with the noticed matters.
To the extent any issues regarding shipment of Surry spent fuel to the North Anna facility and e;pansion of the North Anna Unit 3 fuel pool are raised in contentions in the instant proceeding, they will of course be addressed by the Staff in its response to those contentions.
V.
CONCLUSION For the foregoing reasons the Petitioners Citizens and Louisa County I
have established standing to intervene in the instant proceeding in accordance with 10 C.F.R. 9 2.714.
As stated above, the NRC Staff submits that the issue of consolidating the instant proceeding with the proceeding noticed in the Federal Register concerning the amendment of the North Anna Units 1 and 2 licenses to l
permit the storage of spent fuel from the Surry Power Station Units 1 l
l and 2 should be deferred, and that in any event, matters beyond the scope l
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of the two noticed proceedings should not be consolidated with the noticed proceedings.
Respectfully submitted,
./
dAcGurren en Cou for NRC Staff 4?M f.%
Daniel T. Swanson Counsel for NRC Staff Dated at Bethesda, Maryland this 12 of November,1982.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COPHISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of VIRGINIA ELECTRIC & POWER COMPANY Docket Nos. 50-338 OLA-2 50-339 OLA-2 (North Anna Nuclear Power Plant,
)
Units 1 and 2)
)
(Expansion of Spent Fuel Pool)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 6 2.713(b),
10 C.F.R. Part 2, the following infomation is provided:
Name
- Henry J. McGurren Address
- Office of the Executive Legal Director U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Telephone Number
-AreaCode(301)492-7836 l
Admissions
- Supreme Court of the State of l
Illinois Name of Party
- NRC Staff l
U.S. Nuclear Regulatory Comission Washington, DC 20555 Henry %U McGurren Counsel for NRC Staff Dated at Bethesda, Maryland this 12th day of November,1982.
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0191ISSION
~
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of VIRGINIA ELECTRIC & POWER COMPANY )
Docket Nos. 50-338 OLA-2
)
50-339 OLA-2 (North Anna Nuclear Power Plant,
)
Units 1 and 2)
)
(Expansion of Spent Fuel Pool)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 6 2.713(b),
10 C.F.R. Part 2, the following infomation is provided:
Name
- Stuart A. Treby Address
- Office of the Executive Legal Director U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Telephone Number
- Area Code (301) 492-8661 Admissions
- Supreme Court of the United States Court of Appeals for the State of New York
(
Name of Party
- NRC Staff U.S. Nuclear Regulatory Comission Washington, DC 20555 f/M6Y b1 Stuart A.'Treby /
Counsel for NRC Shaff Dated at Bethesda,. Maryland this 12th day of November, 1982.
o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of VIRGINIA ELECTRIC & POWER COMPANY
)
Docket Nos. 50-338 OLA-2 50-339 OLA-2 (NorthAnnaNuclearPowerPlant, Units 1 and 2)
(Expansion of Spent Fuel Pool)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appt.arance in the captioned matter.
In accordance with 6 2.713(b),
10 C.F.R. Part 2, the following information is provided:
Name
- Daniel T. Swanson Address
- Office of the Executive Legal l
Director U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Telephone Number
-AreaCode(301)492-8648 Admissions
- Supreme Court of the United States Court of Appeals for the State of New York Supreme Court of the State of Tennessee i
Name of Party
- NRC Staff l
U.S. Nuclear Regulatory Comission Washington, DC 20555 Daniel T. Swanson Counsel for NRC Staff l
Dated at Bethesda, Maryland this 12th day of November, 1982.
I
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE AT0f1IC SAFETY AND LICENSING BOARD In the Matter of
)
Docket Nos. 50-338 OLA-1
)
50-339 OLA-1 VIRGINIA ELECTRIC & POWEP COMPANY
)
Receipt of Spent Fuel
)
(NorthAnnaNucicarPowerPlant, Docket Nos. 50-338 OLA-2 Units 1 and 2) 50-339 OLA-2 Expansion of Spent Fuel Pool CERTIFICATE OF SERVICE I hereby certify that copies of two documents, each entitled RESPONSE OF NRC STAFF TO PETITIONS FOR LEAVE TO INTERVENE FILED BY LOUISA COUNTY AND CITIZENS, filed in the above captioned proceedings, have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 12th day of November,1982.
Sheldon J. Wolfe, Chairman
- Dr. George A. Ferguson Administrative Judge Administrative Judge Atomic Safety and Licensing Board School of Engineering U.S. Nuclear Regulatory Conmission Hcward University Washington, D.C.
20555 2300 Sth Street, N.W.
Washington, D.C. 20059 Dr. Jerry Kline*
Michael W. Maupin, Esq.
Administrative Judge Hunton & Williams Atomic' Safety and Licensing Board P.O. Box 1535 U.S. Nuclear Regulatory Conmission Richmond, Virginia 23212 Washington, D.C. 20555 J. Marshall Coleman James B. Dougherty Christopher H. Buckley, Jr.
3045 Porter Street, N.W.
Cynthia A. Lewis Washington, D.C. 20008 Robert Brager Virginia S. Albrecht Atomic Safety and Licensing Beveridge & Diamond, P.C.
Board Panel
- 1333 New Hampshire Avenue, N.W.
U.S. Nuclear Regulatory Commission Washington, D.C. 20036 Washington, D.C. 20555 Atomic Safety and Licensing Appeal Docketing and Service Section*
Panel
- Office of the Secretary U.S. Nuclear Regulatory Conmission U.S. Nuclear Regulatory Comnission Washington, D.C. 20555 Washington, D.C. 20555
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/Y Henry O. j 4cGurren '
Counseldor NRC Staff
,