Text

Answer Opposing La Consumers League 810930 & Louisianians for State Energy & Gr Rothschild 811002 Petitions to Intervene.Groups Failed to Satisfy Organizational Standing Requirements.No Specific Aspects Shown.W/Certificate of Svc
	ML20031G440
Person / Time
Site:	River Bend
Issue date:	10/15/1981
From:	Conner T; CONNER & WETTERHAHN, GULF STATES UTILITIES CO.
To:	; Atomic Safety and Licensing Board Panel
References
	NUDOCS 8110220430
	Download: ML20031G440 (23)
	v • d • e

.

00CKETED USMC UNITED STATES OF AMERICA NUCLEARREGULATORYCOMMISSSrNI DCT 16 P1:37 Before the Atomic Safety and Licensincr Board-In the Matter of

)

Gulf States Utilities Company,

)

Docket Nos. 50-4; O et al.

)

50-45.,

b (R

e Bend Station, Units 1

)

N 1

and 2)

)

2' G C T ~o 0~ 1981ye i

Q "

mm umwn Q APPLICANTS ANSWER TO PETITIONS OF LOUISIANIJCLS b

LEAGUEFORLEAVETOINTERVENBt' GRETCHEN ROTHSCHILD, AND \\

FC,R SAFE ENERGY, LOUISIANA CONSUMERS' I

~*

Preliminary Statement On September 4, 1981, the Nuclear Regulatory Commission

("Cemmissicn" or "NRC") published a notice in the Federal Recister entitled " Gulf States Utilities Co. and Cajun Electric Power Cooperative (River Bend Station, Units 1 and 2); Receipt of Application for Facility Operating Licenses; Consideration of Issuance of Facility Operating Licenses; Availability of Applicants' Environmental Report; opportunity 1/

for Hearing"

(" Notice "). --

In response to the Notice, petitions for intervention were filed on behalf of Louisiana consumers' League, Inc.

("LCL"), dated September 30, 1981, and on behalf of Louisianians for Safe Energy, Inc. ("LSE")

and Gretchen Reinike Rothschild, dated October 2, 1981.

J/

46 Fed. Reg. 44539 (September 4, 1981).

Q 8110220430 811015

{DRADOCK 05000458 PDR o-For the reasons discussed more fully below, petitioners LCL and LSE have failed to satisfy the requirements for or-ganizational standing in an NRC proceeding.

Petitioner Rothschild has not shown the requisite personal interest for intervention in this proceeding.

Nor have petitioners identified the " specific aspect or aspects of the subject matter of the proceeding" intended to be pursued.

Accord-ingly, the petitions should be denied.

Argument Under the Ccmmission's Rules of Practice, a petition to intervene in a licensing proceeding may be granted only if the requirements of 10 C.F.R. SS2. 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 be affected by the outcome of the proceeding.

The decisions of the Commission and its adjudicatory boards do not provide clear guidance as to what constitutes the requisite " personal interest" required for intervention, more specifically, whether mere proximity to the nuclear facility, absent any other nexus or showing, is sufficienu.-

In general terms, the decisions of the ccmmissioners have adopted the test for standing utilized by the Uni:ed States Supreme Court in requiring a demonstration of " injury in-fact" as a basis for establishing the requisite personal i

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l interest.

Thus, the Commissioners have indicated that an assertion of " injury in fact" to the petitioner himself, and not a generalized grievance shared by a large class of public, is necessary for standing.

In Transnuclear, Inc.,

CLI-77-24, 6 NRC 525 (1977), the Ccemissioners held as follows in deciding that petitioners lacked standing to request a hearing:

Any right the Petitioner may have to demand a hearing in the present proceeding must be based upon Section 189 of the Atomic Energy Act of 1954, as amended, 42 U.S.C.

2239.

That section provides that a hearing must be granted, on the request of persons who can demonstrate an " interest (which] may be affected by the pro-ceeding."

Under the most recent Supreme Court decision on standing, a party seekinc relief must " allege some threatened or actual in3ury resulting frcm the putatively illegal action oefore a federal court may as-sume Jurisdiction."

Linda R.S.

v.

Richard D.,

410 U.S.

614, 617 (1973),

Warth v.

Seldin, 422 U.S.

490, 499 (1975); see Simon v.

Eastern Kentucky Welfare Rights Organization, 426 U.S.

26 (1976).

One focus of the " injury in fact" test is the concept that a claim will not normally be entertained if the " asserted harm is a 'ceneralized grievance' shared in substantially equal measure by all or a larc_e class of citizens Warth v.

Seldin, 422 U.S.

at 499.

Thus, even if there is a generalized asserted harm, the Petitioners must still show a distinct and palpaole harm to them.

_Id.

at 501.

See United States v.

Students Challenging Regulatory Agency Procedures (SCRAP),

412 U.S. 669 (1973).

_2,/

The Commission recently reviewed and reaffirmed these requirements for standing in rejecting intervention potitions in Westinghouse Electrical Corp. (Export to South Forea),

l CLI-80-30, 12 NRC 253 (1980).

The Commissioners again en-phasized the importance of stating some " injury in fact" to the petitioner himself as a basis for establishing the requisite personal interest in the proceeding for interven-tion:

In developing the " injury in fact" requirement, the Court has held that an organization's mere interest.in a problem, "no matter how long-standing the interest and l

no matter how qualified the organiza tion is in evaluating the problem,"

is not s'ufficient for standing to obtain judicial review.

Sierra Club

v. Morton, 405 US 727, 739 (1972).

The organization seeking relief must allege that it will suffer scme threatened or actual injury resulting from the agency action.

Linda R.S.

v. Richard D.,

410 US 614, 617 (1973);

Warth v.

Seldin, 422 US 490, 499 (1975).

Simo1 v.

Eastern Kentucky Welfare Rights Organization, 426 US 26, 40 (1976),

made clear that "an organizati n's ab-stract concern with a subject chat could be affected by an adjudication 2/

6 NRC at 530-31 (emphasis added).

While the cited

~~

prcceeding was for censideration of export license applications, the Ccamissicn did not distinguish the standing requirements from those applied to all proceedings, including reactor applications.

s-3 does not substitute for the concrete injurr, rec.uired bv. article III."

_3_/

In certai;.

a:-, it is easy to discern that the 4

Appeal Board has followed the approach adopted by the Commissioners in construing Section 2.714 to limit inter-vention to those who have particularized specific injury and do not meraly seek to vindicate the general public interest.

i l

In the Sheffield proceeding, the Appeal Board stated these requirements for standing as follows:

Both the Atomic Energy Act and the Commission's Rules of Practice confer a r ght to intervene _n a i

licensing proceeding upon those who possess an " interest (which]

may be affec ad by the proc 3eding."

1 It is now settled that, in determing i

whether such an interest has been satisfactorily alleged, contempora-neous judicial concepts of standing l

are to be applied.

More specifically, 1

it must appear from the petition both (1) that the petitioner will or might be injured in fact by one or more of the possible outcomes of the proceeding; and (2) that the asserted interest of the petitioner in achiev-ing a particular result is at least arguably within the " zone of interests" protected or regulated by the statute or statutes which are being enforced.

j Portland General Electric Ccmpany l

3/

12 NRC at 258.

Of course, the " injury in fact" i

requirements for an organization or individual petitioner are identical, since the organization 4

stands in shoes of the members it purports to repre-i sent.

Certainly there is nothing in the regulations to suggest that different rules exist for organiza-tions than for individuals.

Therefore, absent a statement by a petitioner as to how he has a " direct stake in the outcome" of the proceeding, his ganeral-ized allegations establish only a " mere ' interest in the problem.'"

Sierra Club v.

Morton, 405 U.S.

727, 739 (1972).

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os.r, (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976).

As is readily apparent from the foregoing, neither petitioner has identified, let alone particular1:ed, any specific injury that it or its members would or macht sustain chould the Sheffield license renewal and amendment application be denied or, alternatively, granted subject to the imposition of burdensome condi-tions upon the license.

Rather, both petitioners seek intervention in order to vindicate broad public interests said to be of particular concern to them and their members or "contrInutors" ([ petitioner] does not claim to have members as such).

[T]he test is whether a cognizable interest of the petitioner might be adversely affected if the-proceeding has one outccme rather than another.

And, to repeat, no such interest is to be presumed.

There must be a con-crete demonstration that harm to the petitioner (or those it represents) will or could flow from a result un-favorable to it - whatever that result might be.-

_4/

In contrast to its pronouncements in the Sheffic1d proceeding, other statements by the Appeal Board indicate

~~4/

Nuclear Engineering Company, Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALA3-473, 7 NRC 737, 739, 741, 743 (1978) (emphasis added) (foot-notes omitted).

While this decision arose under the old versicn of Section 2.714, the standing require-ments under the old and new rules are the same.

See also Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALA3-328, 3 NRC 420 (1976).

o*

I that a lesser showing may be made for intervention by a person who resides near a nuclear facility.

In Virginia Electric Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54 (1979), the Appeal Board stated that "close proximity has'always been deemed to be 5/

enough, standing alone, to establish the requisite interest."

-~

However, in Houston Lichting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALA3-535, 9 NRC 1

377 (1979), the Appeal Board stated that valid petitions

]

have " explicitly identified the nature of the invasion of (petitioner's] personal interest which might flow from the C/

proposed licensing action."-~

The Appeal Board clarified its earlier North Anna decision to mean that " persons who live in close proximity to a reactor site are presun.ed to have a cognizable interrest in licensing proceedings in-volving that reactor." 1/

i And in Houston Lighting and Power Company (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644 (1979), the Appeal Board construed North Anna to require allegations of residence proximate to the facility

" coupled with (petitioner's] expressed concern about injury i

8/

to his person and property should the plant malfunction

_5_/

9 NRC at 56.

__6/

9 NRC at 393 (emphasis added).

7/

Id. (emphasis added).

_8/

9 NRC at 646 n.8 (emphasis added).

a_

~~

In the Palisades proceeding, the Licensing Board similarly construed these decisions to mean that close proximity" to the facility merely raises a presumption of standing and that further demonstration of a " cognizable interest personal" to the intervenor is necessary fer standing.

The Board said:

i conceding that those who live within close proximity to a nuclear facility are presumed to have a cognizable interest, the Staff asserts that it is important to recognize that the "close pro amity" test only raises a presumption of standing.

What is really " presumed" cy the "close proxi-l mity" test is that the potential litigant will in fact be able to show an Lajury to an interest protected by the Atomic Energy Act.

If he or she cannot, then the presumptica f ails.

The Staff position is amply supported by at least two cases (citing and dis-cussing I!ouston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALA3-535, 9 NRC 377, 393 (1979); Dairyland Power Cooperative, (Lacrosse Boiling Water Reactor), LBP-80-26, 12 NRC 367, 373 (1980)]

Thus, the Union cannot assert standing in this case by virtue of the "close proxi-i mity" test unless it can also show that it has an interest protected by the Atomic 1

Energy Act (a " cognizable interest") that has been adverseJy affected by the

-Director's Order in a way that is environ-mentally or safety-related.

_9/

9/

Consumers Power Cor.pany (Palisades Nuclear Power Facility), Docket No. 50-255 SP " Memorandum and Order Ruling on Petition to Intervene," (July 31, 1981) (slip opinion at ll-12) (emphasis added).

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P Accordingly, there is a lack of clarity in the deci-sions of the Appeal Board as to the cognizable interest I

which must be demonstrated to establish standing to inter-l i

vene in a reactor licensing proceeding.

Nonetheless, it is l

submitted that the decisions of 'the Commission have defi-nitively required a personalized showing of actual or puta-q tive harm to the petitioner himself and, therefore, such a showing cannot be made simply on the basis that a peti-

-10/

tiener resid9s within a designated distance from the facility. -

Thus, with respect to Petitioner Rothschild, who merely alleges that she is "a property owner in the vicinity of the

-11/

proposed facilities in West Feliciana Parish" ~ without

' fur' ner specification of any personal interest, Applicants submit that she has failed to "show injury that has occurred or will probably result from the action involved" and there-fore lacks standing to intervene.

Mrs. Rothschild does not, as required by the Ccmmission's regulations, set forth with particularity her interest in the proceeding, how that interest may be affected by the outcome, or any facts which would establish the nature of har rights under the Act to be made a party.

Notwithstanding allegations of prce ity to the plant, petitioner has therefore failed to show any J

10/

In any event, Applicants wish to preserve the point

]

for the purpose of possible judicial review.

11/

LSE Petition at 2.

m lo _

" cognizable interest" under Section 189 of the Atomic Energy 12/

Act sufficient to demonstrate her standing.--

Certainly, petitioner's status as a ratepayer is insufficient for standing.

With regard to LCL and LSE, it is now well settled that

" organizations are not clothed with independent stand-ing to intervene in NRC licensing proceedings.

Rather, any standing which (an organization] may possess is wholly derivative in character."

Houston Lighting and Power Company I

(Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 390 (1979). --13/ In other words, an organizational petitioner must establish that at least One of its members has a legal s+.anding to intervene in this proceeding under the-rules applicable to individual petitioners.

The LCL petition states that the organization's purpose is "[tlo promote the interests and rights of all consumers 14/

4 in the State of Louisiana"-

and "[t]o represent the interests of Louisiana consumers before legislative and administrative 15/

bodies."--

The LCL petition.then states that a " number of petitioner's members live within 15 and 30 miles of the proposed facility" and that a " number of petitioner's 12/

Certainly, petitioner's status as a ratepayer is insuffi-cient.

See note 27',

infra.

13/

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), L3P-79-1, 9 NRC 73 (1979).

M/

LCL Petition at 1.

15/

Id.

- - _ = -. _ _ - _.

members cbtain their drinking water from the regional aquifer 16/

cver which the proposed facility is to be located. "--

Similarly, the LSE petition recites that the organiza-tion's " objectives and purposes include the education of the citizens of Louisiana regarding the various energy options available to meet the energy needs of the State and 17/

its citizens."--

Like the LCL petition, the LSE petition states that "(mlost of the members of petitioner LSE live within 15 and 30 miles of the proposed facilities and obtain their drinking water from the aquifer over which the pro-18/

posed facilities, River Bend Units 1 & 2, will be located."

However, neith2r petition is supported by the statement of any member of the respective organizations setting forth facts sufficient.to demonstrats a member's personal interest in the proceeding.

In the section of its petition entitled

" Interests of the Petitioner," the LCL petition simply states in the most general terms that "[t]he interests of i

i petitioner and the Louisiana residents it represents which may be affected by-the results of this proceeding are the potential financial, health, safety and environmental problems 19/

associated with this nuclear power station. "--

The LSE peti-tiens is equally deficient. --20/

16/

Id. at 1-2.

17/

L'E Petition at 1.

18/

Id. at 2.

_1_9/

LCL Petition at 2.

_2_0/

LSE Petition at 2-3.

The cetition includes only the affidavit of an of f :er of LSE who states that "the information (Footr.ote 20/ continued on next page)

The f ailure of LCL and LSE to delineate specifically the interests of their members is therefore fatal to the petition.

In the Allens Creek decision in ALA3-535, the Appeal Board emphasized that the Licensing Board "was not merely entitled but obligated to satisfy itself that there was at least one t.er ber o f the (petitioner organization) with a particularized interest which mighu 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 affected interest on the strength of'nothing more than the naked representation in its petition that a certain number of [ petitioner's] members reside within 'close proximity' 21/

to the site of the proposed facility."--

The Appeal Board explained its rationale as follows:

Although it may be reasonable to suppose that most (perhaps all)

(petitioner's] members share that dedication as well as subscribe to the general objective vf the or-ganization as spelled out in the petition, it scarcely follows perforce that each considers that construction of tha Allens Creek facility would invade some personal interest " arguably

_2_0/

(continued) centained in these documents is true and correct to the best of his information and belief."

This does not constitute compliance with the Commission's re-quirements for organizational standing that specific mechers with affected, personal interests be identi-fied and that those members expressly authorize the organization to repr'7ent their stated interests.

2_1/

AIAB-5 3 4, 9 NRC at 391-92.

within the zone of interests sought to be protected or regulated" by either the statutes this Commission enforces or the Constitution.

Insofar as we are aware, joining and retaining membership in (petitioner) does not i

signify adherence to any particular l

views regarding the desirability of nuclear power facilities, either from a civil liberties standpoint or other-wise.

Nor, more importantly, does there appear to be any necessary link between holding (petitioner] member-ship and possessing an interest which might be affected by the construction or operation of such a facility.

In-deed, for all that appears on this record, the personal intersts of any particular (petitioner] member might be advanced, rather than harmed, by the construction of Allens Creek - i.e.,

the proposed licensing action would cause the member no injury in fact at all.

Absent disclosure of the name and ad-dress of one such member, it is not possible to verify the assertion that such members exist.

In a footnote in their brief, the amici curiae endeavor attempts to brush this consideration j

aside by noting that the veracity of l

(petitioner's] allegation that it has nearby members that has never been l

challenged and, were it to be, the Board below could require a (petitioner]

officer to submit an affidavit attesting to the truthfulness of the allegation.

l What this line of reasoning ignores is l

that both the Board and the other parties I

were entitled to be provided with suffi-cient information to enable chem to determine for themselves, by independent inquiry if thought warranted, whether a basis existed for a formal challenge 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 pro-cedural due process.

22/

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 cf its members "must identify specifically the name and address of at least one affected member who wishes to be represented by the organiza-23/

tion.."--

More recently, the Licensing Board in the Perry proceeding alsa stated the requirement that petitions for l

inrervention "be accompanied by one or more affidavits stating the place of residence of members on whom standing is based and stating that the organization is authorized to 24/

represent the member's interests."~-

22/

Id. at 392-93 (footnote and citations omitted) (em-phasis in original).

As with petitioner in Allens Creek, "[i]nsofar as we are aware, joining and re-talning membership in (LSE or LCL] does not signify adherence to any particular views regarding the de-sirability of nuclear power facilities Id at 392.

23/

Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LEP-79-1, 9 NRC 73, 77 (1979).

24/

Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), Docket Nos. 50-440 and 50-441, " Memorandum and Order Scheduling Prehearing i

Conference Regarding Petitions for Intervention" (April 9, 1981) (slip cpinion at 6).

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.'n the Big Rock Point proceeding, the Licensing Board held that 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 I

organization to represent it, and pro; de a statement of the member's interests which would be affected by the 25/

proposed action.

And in Ccmanche Peak, the Licensing 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 26/

authorization to the organizaton must be stated.

~"~

Accordingly, the unsupported and conclusionary representa-tion-in the LSE and LCL petitions that their respective memberships possess certain personal interests is insufficient as a matter of law for intervention.

Further, some of the interests alleged are not in any event a basis for-intervention.

LSE posits its standing in part upon the status of its members as ratepayers.

However, such concerns are clearly outside the ":ene of interests" under the operating statutes of the NRC and are 25/

Consumers Power Company (Big Rock Point Nuclear Plant),

Docket No. 50-155, " Memorandum and Order" (September 25, 1979) (s.' ip opinion at 4).

26/

Texas Utilities Generating Ccmpany (Comanche Peak Steam Electric Station, Units 1 and 2), LEP-79-18, 9 NRC 728, 729 (1979).

legally inadequate for intervention.

In this regard, the purported representation of the general "public interest" or l

"ecnsumer interests" by both LSE and LCL should be directed to the Public Utility Commission of Texas.

l To the extent that LSE relies upon a possible " lowering 1

of property values due to the existence and operation of the i

28/

proposed facilities,"-- its assertion is too remote and 29/

j speculative for standing-~ and is, in any event, outside the 1

one of interests cognizable under the operating statutes of 30/

the NRC.

The same point applies with equal force to 27/

Portland General Electric Company (Pebble Springs j

Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, j

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), L3P-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. 50-289 (Restart),

" Memorandum and Order Ruling on Petitions and Setting Special Prehearing Conference" (September 21, 1979)

(slip opinion at 7).

E8/

LSE Petition at 3.

29/

See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S.

26, 43 (1976); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.

252, 262 (1977); Linda R.S.

v.

Richard D.,

410 U.S.

614, 619 (1973).

In any event, i

this economic interest is premised upon a widespread economic

' downturn within the entire area and, cc such, is indistin-guishable from those interests shared in substantially equal measure by all or a large class of the public.

Petitioner has therefore failed to "show a distinct and palpable harm" to itself or its members.

Transnuclear, Inc., CLI-77-24, 6 NRC 525, 531 (1977).

30/

The Commission has determined "to exclude psychological stress and community deterioration contentions" in reactor proceedings.

See Metropolitan Edison Com=any (Three Mile Island Nuclear Station, Unit 1), Docket No. ~E0-239 (Restart),

CLI-81-20 (September 17, 1981).

~ 17 -

4 Petitioner Rothschild, wno alleges that she owns property in the vicinity of the site.

Petitioners LSE and Rothschild express a " concern" that they "could be adversely affected by radioactive emissions from the proposed facilities" and allude to "significant safety deficiencies due to numerous Unresolved Safety Issues."

They also state an unspecified " interest" in the " indefinite 2

storage of radioacrive wastes on the site of the proposed facilities, and.the future transportation and disposal of 31/

these wastes.""~

Petitioner LSE similarly expresses concern over waste storage and-the safe operation of the plant.

These recitations, however, lack the particularity required by 10 C.F.R. 52.714 and express concerns which are simply too diffuse and generalized to qualify petitioners for stand-ing under the requirements of the Ccmmission's regulations.

32/

Such allegations fail to "show a distinct and palpable harm"--

to petitioners or-how petitioners themselves "will or might be injured in fact by one or more of the possible outcomes 33/

of the proceeding. "--

Rather, such statements express only a 34/

" generalized grievance"-

based on interests shared by all

--31/

LSE Petition at ?

32/

Transnuclear, Inc., CLI-77-24, 6 NRC 123, 531 (1977).

33/

Nuclear Engineering Company, Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 740 (1978).

34/

Transnuclear, Inc., CLI-77-24, 6 NRC 525, 531 (1977),

citing Warrh v.

Se'1 din, 422 U.S.

490, 499 (1975).

other members of the general public.

In these circumstances, petitioners have not " identified, let alone particularized, any specific injury that (they]

. would or might sustain,"

but merely seeks intervention "in order to vindicate broad 35/

public interests said to be of particular concern" to them.

~~

Finally, petitioners have failed to comply with the requirement.under the rules for intervention that they designate "the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to 36/

intervene."-- The aspects designated by petitioners merely outline general areas of subject matters in more or less

" table of contents" fashion.

These designated " aspects" are entirely too vagua to constitute compliance with the standard of specificity contained in 10 C.F.R.

52. 714 (a) (2).

For example, the LCL petition's reference to the " safe operation of this nuclear power station" as one aspect of the proceeding it would pursue is entirely lacking in specificity.

As the Licensing Board stated in the Midland proceeding, the require-ments for properly designating such " aspects" are unclear 35/

Nuclear Engineering Company, Inc. (Sheffield, Illinois, Lcw-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC'737, 741 (1978).

36/

10 C.F.R. 52. 714 (a) (2) (emphasis added).

37/

LCL Petition at 2.

i l

- but likely " narrower than a general reference to [the Cem-38 mission's) operating statutes."_ / The reference in the LSE 1,

petition to unspecified hydraulic events' involving the 39/

Mississippi River-is likewise altogether too vague.

To the extent that the petitions would attempt to raise s

matters outside of an Atomic Safety and Licensing Board's jurisdiction at an operating license proceeding, they cannot 40/

l fulfill the " aspect" requirement of 10 C'.F.R.

52.714.

For example, both petitions would raise the ultimate disposal l

l of waste as an aspect to be considered.

This is clearly 41/

-~

l prohibited.

Another example is LCL's desire 38/

Consumers Power Comcany (Midland Plant, Units 1 and 2),

-~

j L3P-78-27, 8 NRC 275, 278 (1975).

i 39/

LSE Petition at 5.

40/

Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), Docket No. 50-289 (Restart), " Memo-randum and Order Ruling on Petitions and Setting Sp ecial Prehearing Conference" (September 21, 1979) (slip opinion at 6).

41/

The ultimate disposition of reactor waste is currently

~-

i the subject of NRC rulemaking.

See 44 Fed. Reg. 61372 (October 25, 1979).

As a generic issue to be determined by the Commission, it is not for consideration by indi-vidual licensing boards.

The Commission's notice of rulemaking followed a decision by the Court cf Appeals in the State of Minnesota v.

United States Nuclear Regulatory Commission, 602 F.2d 412 (D.C. Cir. 1979),

which sustained dismissal of a contention regarding-ultimate waste disposal in Northern States Power Company

}

(Prairie Island Nuclear Generating Plant, Units 1 and 2),

i ALAB-455, 7 NRC 41 (1978).

In reciting these events, the Licensing Board in the Allens Creek proceeding stated that it was " bound by the Commission's decision" in dismissing a similar contention.

See Houston Lichtina and Power Comoany (Allens Creek Nuclear Generating Station, 6 nit 1), Docket No. 50-466, " Order" (March 10, 1980) (slip opinion at 37-38).

See also Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), Docket Nos. 50-338 SP and 50-339 SP,

" Order Denying Intervenors' Motion to Amend Petition to Inter-vene" (August 17,-1979).

1 4

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to consider the " adequacy of evacuation plans for low-income and moder, ate income persons.

. within a 50-mile radius of 42/

this nuclear power station."~~

Commission emergency planning regulations limit evacuation planning to the plume exposure 43 10 miles,-'/

Emergency Planning Zone, i.e.,

and, therefore, petitioner's attempt to consider evacuation of an area within a 50-mile radius of a nuclear power station would be a prohibited challenge to the Commission's regulat.'ons.

See Metropolitan Edison Company (Three Mile Island Taclear Station, Unit No. 2), ALAB-456, 7 NRC 63, 67 n.'3 (1978);

Potomac Electric Power Company (Douglas Point Nuclear Generating 4

Station, Units 1 and 2), ALAB-218, 8 AEC 79, 89 (1974).

i 42/

LCL. Petition at 2.

-a 43/

See 10 C.F.R.

S50.47 (c) (2).

44/

Further, LCL lacks standing to crgue the rights of

~~

" low-income and. moderate income persons" not within its. organization.

As the Court stated in Warth v.

Seldin, 422 U.S. 490, 499 (1975), a party " generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. "

Again, in Moose Lodge No. 107 v.

Irvis, 407 U.S.

163, 166 (1972), the Court stated that a party "has standing to seek redress for injuries done to him, but may not seek redress for in-juries done to others."

ML20031G440

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