ML20028D164
| ML20028D164 | |
| Person / Time | |
|---|---|
| Site: | Robinson  |
| Issue date: | 01/14/1983 |
| From: | Karman M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8301170188 | |
| Download: ML20028D164 (11) | |
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l 01/14/83 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CAROLINA POWER AND LIGHT COMPANY
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Docket No. 50-261 s
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(Steam Generator Repair)
(H.B. Robinson Steam Electric
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Plant, Unit 2)
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RESPONSE OF THE NRC STAFF TO PETITIONS FOR LEAVE TO INTERVENE FILED BY HARTSVILLE GROUP AND CONCERNED F0OLS OF DARLINGTON COUNTY I.
INTRODUCTION On November 24, 1982, the Nuclear Regulatory Commission published a notice in the Federal Register (47 Fed. Reg. 53157) entitled " Proposed Issuance of Amenhent to Facility Operating License" regarding the Carolina Power and Light Co.'s (Licensee) application for an amendment to the operating ~ license for H.B. Robinson Steam Electric Plant, Unit 2, to permit repair of steam generators by replacement of major components, including i
the tube bundles. This notice directed that requests for hearing and petitions for leave to intervene in the above proceeding must be filed on or before December 27, 1982. On December 27, 1982 petitions for leave to intervene were filed by 1) Hartsville Group (Hartsville) and 2) Concerned Fools of Darlington County (CFDC). The Staff's responses to these peti-tions are set forth below.
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> II. DISCUSSION A.
" Interest" Requirements for Intervention Pursuant to 10 C.F.R. 6 2.714 As stated in the Federal Register Notice (47 Fed. Reg. 53157) the Commission's regulations require that a petitioner for leave to intervene submit a written petition setting forth with particularity the petitioner's interest in the proceeding and how that interest may be affected by the results of the proceeding.
10 C.F.R. $ 2.714(a)(2). This section also requires the petition to make particular reference to the factors in 10 C.F.R. s 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 standing should be applied in NRC licensing proceedings.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 t'RC 610, 613-14 (1976).
These concepts require a showing that the E o the person action being challenged could cause injury in fact t
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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.
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 peti-l tiener, Ten Applications, CLI-77-24, supra, and a petitioner must l
have some direct stake in the outcome of the proceeding, See Allied-General Nuclear Services (Barnwell Fuel Receiving aiid l
Stcrage Station), ALAB-328, 3 NRC 420, 422 (1976).
I
F 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.
Iji.
See also, Warth v. Seldin, 422 U.S. 490 (1975); Sierra Club v. Morton, 405 U.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 witilin the " zone of interests" to be protected or regu-lated 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).
Rather, the Appeal Board has stated that alleged economic harm comes within the ambit of the NEPA " zone of interests" "...
[only] if it is environmentally related; i.e., if it will or may be i
occasioned by the impact that the Federal action under consideration would or might have upon the environment." Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 (1977).
The Appeal Board has held that the geographical proximity of peti-tiener's residence to the facility standing alone is sufficient to satisfy the interest requirements of 10 C.F.R. 5 2.714, altbaugh 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 deter-
> mined, distances of up to 50 miles have been accepted by the Appeal Board as conferring standing upon particular petitioners.
See, g., Watts Bar, ALAB-413, 5 NRC at 1421; C_f. 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 establi:h that it will be injured and that the injury is not a generalized grievance shared in substantially equal measure by all or a large class of citizens. M. 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 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 I and 2), ALAB-136, 6 AEC 487, 488-489 (1973); Ducuesne
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'O l 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 peti-tioning 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; Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit No. 2),
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.
B.
Petitioners Must Meet the " Aspect" Requirements of 10 C.F.R. % 2.714 In addition to demonstrating " interest", a petitioner must set fortn "the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene."
10 C.F.R. 5 2.714(a)(2).2/
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10 C.F.R. @ 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 satis-faction of the 10 C.F.R. 5 2.714(b) contention requirements.
P 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 NuclearStation, Unit 1),LicensingBoard"MemorandumandOrderRuling on Petitions and Setting Special Prehearing Conference," dated September 21, 1979, slip. op, at 6 (unpublished Order).
III.
NRC STAFF RESPONSE TO PETITIONS FOR LEAVE TO INTERVENE A.
Hartsville Petition Martsville has petitioned for leave to intervene as a representative 4
of its members some of whom are alleged to reside within six miles of the H.B. Robinson facility and who are concerned about the threat to their health and safety posed by the facility.
Hartsville petition at 2.
Attached to the Petition are several affidavits of members of Hartsville who live and reside in "geographicaly proximity" to the H.B. Robinson facility. These members have explicitly authorized Hartsville to repre-sent their personal interests which might be affected by the proceeding.
Allens Creek, ALAB-535 supra at 396.
Accordingly, the Petition has estab-lished the standing of Hartsville to intervene in these 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 subject matter of the proceeding as to which petitioner wishes to inter-i vene. Hartsville's Petition identifies several aspects such as need for an Environmental impact Statement, Quality Assurance and Quality Control problems and increase in amounts of radioactive waste. Accordingly, the Petition has satisfied the " aspects" requirement of 10 C.F.R. 5 2.714(a)(2).
Hartsville has indicated that it proposes to file a supplement to its Petition under the provisions of 10 C.F.R. 5 2.714.
10 C.F.R. 5 2.714 allows a petitioner to supplement the petition up to 15 days prior to the first prehearing conference to incude 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. The Staff will respond to any contentions filed in a supplemental petition.
In sum, it is the Staff's position that Hartsville 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 proceedin'g.
B.
The CFDC Petition CFDC alleges that it represents a group of people living in close proximity to the H.B. Robinson facility. The Petition, signed by Jacqueline Kirven, of Hartsville, South Carolina states that she has been authorized by CFDC to be its representative for this proceeding. Her address would indicate " geographical proximity", in addition to the con-cern of CFDC relative to protection of their health, safety and economic l
. interests leads the Staff to the position that a requisite " interest" in accordance with 10 C.F.R. 5 2.714 has been stated.
North Anna, ALAB-522, supra.
With regard to the " aspects" requirement of 10 C.F.R. 5 2.714, CFDC assert a concern about the cost benefit analysis being changed and expo-sure to workers as a result of the steam generator repairs. Accordingly, it is the Staff's position that CFDC has satisfied the " aspect" require-ment of 10 C.F.R. 5 2.714(a)(2). The Staff, however, takes no position on whether the assertions made by CFDC in its Petition are sufficiently precise and have the requisite basis to be considered litigable conten-tions under the Commission's regulations. The Staff submits that these
" aspects" can be better responded to when they are converted to final proposed contentions by CFDC prior to the first prehearing conference in accordance with 10 C.F.R. 5 2.714(b).
It is the Staff's position that CFDC has satisfied the " interest" and " aspects" requirements of 10 C.F.R. 5 2.714 and, accordingly, has established standing to inter-vene in the instant proceeding.
_9-IV. CONCLUSION For the foregoing reasons, the Petitioners Hartsville and CFDC have established standing to intervene in the instant proceeding in accordance.
with 10 C.F.R. $ 2.714.3/
Pespectfully sub itt d, AT Q Myr Karman Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 14th day of January,1983
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Petitioners still have the burden of filing a supplement to their Petitions which must include one good contention in accordance with 10 C.F.R. z 2.714(b) in order for either to be admitted as an intervenor.
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CAROLINA POWER AND LIGHT COMPANY
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Docket No. 50-261
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(H.B. Robinson Steam Electric
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(Steam Generator Repair)
Plant, Unit 2)
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NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 5 2.713(b), 10 C.F.R. Part 2, the following information is provided:
Myron Karman Name U.S. Nuclear Regulatory Commission Address Office of the Executive Legal Director Washington, DC 20555 Telephone Number Area Code 301 - 492-8670 Admissions Supreme Court of the United States Court of Appeals, State of t'ew York Name of Party NRC Staff U.S. Nuclear Regulatory Commission Washington, DC 20555 i
T:2 !:;,,
s Myron frman Deput/ Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 14th day of January, 1983
W UNITED STATES OF AMERICA 4
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CAROLINA POWER AND LIGHT COMPANY Docket No. 50-261 (H.B. Robinson Steam Electric (SteamGeneratorRepair)
Plant, Unit 2)
)
CERTIFICATE OF SERVICE Iherebycertifythatcopiesof"RESPONSEOFTHENRCSTAFFTOPETITIO5Sf0f LEAVE TO INTERVENE FILED BY HARTSVILLE GROUP AND CONCERNED FOOLS OF DARLINGTON COUNTY" and " NOTICE OF APPEARANCE" for Myron Karn an 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, through deposit in the Nuclear Reg 0latory Commission's internal mail system, this 14th day of January, 1983:
Morton B. Margulies, Chairman Jacqueline Kirven Administrative Judge Concerned Fools of Darlington County Atomic Safety and Licensing Board P.O. Box 835 U.S. Nuclear Regulatory Commission Hartsville, SC 29550 Washington, DC 20555*
Dr. Jerry R. Kline U.S. Nuclear Regulatory Commission Administrative Judge Washington, DC 20555*
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Appeal Washington, DC 20555*
Board U.S. Nuclear Regulatory Commission Dr. David L. Hetrick Washington, DC 20555*
Aaministrative Judge Professor of Nuclear Engineering Docketing and Service Section University of Arizona Office of the Secretary Tuscon, AZ 85721 U.S. Nuclear Regulatory Commission Washington, DC 20555*
George F. Trowbridge, Esq.
Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
Washington, DC 20036 B. A. Matthews Hartsville Group P.O. Box 1089 Hartsville, SC 29550 9
Jn Byron arman Deput Assistant Chief Hearing Counsel
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