Text

Response in Opposition to All But Rockland County,Atty General,Metropolitan Transit Authority,Energy Ofc & Port Authority Petitions to Intervene.Remaining Petitions Deficient.Notices of Appearance & Certificate of Svc Encl
	ML20033A875
Person / Time
Site:	Indian Point
Issue date:	11/24/1981
From:	Mcgurren H, Johari Moore; NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	; Atomic Safety and Licensing Board Panel
References
	ISSUANCES-SP, NUDOCS 8111300061
	Download: ML20033A875 (39)
	v • d • e

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11/24/81 UNITED STALES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Louis J. Carter, Chairman Dr. Oscar H. Paris Frederick J. Shon In the Matter of CONSOLIDATED EDISON COMPANY

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Docket Nos. 50-247-SP 0F NEW YORK (Indian Point, Unit 2) 50-286-SP POWER AUTHORITY OF TilE STATE OF NEW YORK (Indian Point, Unit 3)

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RESPONSE OF THE NRC STAFF TO PETITIONS FOR g/

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J LEAVE TO INTERVENE AND REQUESTS FOR PARTICIPATION AS INTERESTED STATES FILED IN RESPONSE TO THE NRC qMlj f

_ FEDERAL REGISTER NOTICE OF CCTOBER 7, 1981 E;

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I.

INTRODUCTION N/ &

On October 7,1981, the Nuclear Regulatory Commission published iL-the Federal Register (46 Fed. Reg. 49688) an " Atomic Safety and Licensing Board; Memorandum and Order" which directed that requests to participate and petitions for leave to intervene in the above proceeding must be filed on or before November 6,1981.

Nineteen petitions and requests, all timely, were filed.

With regard to the petitions, eleven are from organizations or l

groups of organizations that are petitioning for leave to intervene l

pursuant to 10 C.F.R. 5 2.714. These include: West Branch Conservation l

l Association (WBCA), Friends of the Earth (F0E), Rockland Citizens for l-Safe Energy (RCSE), Westchester People's Action Coalition (WESPAC), New York City Au'dubon Society (NYC Audubon), Greater New York Council on o"7 3

Energy (GNYCE), Parents Concerned About Indian Point (Parents), the uh l

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County of Rockland (Rockland), the Union of Concerned Scientists joined with the flew York Public Interest Research Group (UCS-NYPIRG), and the licensees Consolidated Edison Company of flew York, Inc. (Con Edison) and the Power Authority of the State of flew York (Authority).E Additionally, eight governmental entities have requested the opportunity to participate pursuant to 10 C.F.R. 6 2.715(c).

They are:

Port Authority of New York and New Jersey (Port Authority), the Attorney General of the State of flew York ( Attorney General), the New York Assembly and its Special Committee on Nuclear Power Safety (State Assembly), the Metropolitan Transit Authority (MTA), the New York State Energy Office (Energy Office), the Executive of the County of Westchester on behalf of the citizens of the County (County), members of the Council of the City of New Yorx (NYC Council), and the Village of Buchanan (Village).

!n its Order dated November 13, 1981, the Board stated that the Staff should respond to all of the above-mentiened petitions and requests in a single document. This document was to be filed no later than November 24, 1981. The Staff's responses to these petitions and requests are set forth below.

If The Cennission stated that the Licensees, con Edison and the Authority, would be admitted as parties upon request.

Memorandum and Orders dated January 8, 1981 (CLI-81-1, 13 NP.C 1) and Septem-ber 18, 1981 (CLI-81-23, 14 NRC

).

The Licensees made such requests and the requests were granted by the Licensing Board.

Memorandum and Order dated November 13, 1981. Accordingly, the Staff will not address herein their requests.

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II.

DISCUSSION A.

Requirements for Intervention 1.

Petitioners Must Meet the " Interest" Requirements of 10 C.F.R. 9 2.714 The Crynmission's regulations require that a petitioner for leave to intervane submit 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 pennitted to intervene.

10 C.F.R. 6 2.714(a)(2).

This section also requires the petition to make particular reference to the factors in 10 C.F.R. G 2.714(d) which are as follows:

1)

The nature of the Petitioner's interest under the Atomic Energy

Act, j

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 detennining 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 & 2),

CLI-76-27, 4 NRC 610, 613-14 (1976).

These concepts require a showing

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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. Id. See also, Warth v. Sel' din, 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 Appeal Board has ruled that the geographical proximity of petitioner's residence standing alone is sufficient to satisfy the interest require-ments of 10 C.F.R. 5 2.714. Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979). Though no firm outer boundary for this geographic " zone of interest" has been determined, distances of up to 50 miles have been accepted by the Appeal Board as conferring standing upon particular petitioners.

See, e.g., Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 n. 4 (1977).

Cf.

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,

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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 hann must have some particular ettect on a petitioner, Ten Applications, CLI-77-24, supra, and a petitioner must have scoe direct stake in the outcome of the proceeding.

See Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 422 (1976).

, 190, 193, aff'd, CLI-73-12, 6 AEC 241 (1973), reconsid. den. ALAB-110, 6 PEC 247.5 An organization may gain standing to intervene based on injury to itsel f.

Ten Applications, CLI-77-24, suora at 531.

iftheorganization seeks standing on its own behalf, it must establish that it will be injured and that the injury is not a generalized grievance sh:tred in substantially equal measure by all or a large class of citizens. M.

On the other hand, an organization can establish standing through members of the organization who have interests which may be affected by the outcome of the proceeding.

Public Service Co. of Indiana (Marbit.

Ilill 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 at 422-423; Public Service Electric & Gas Company (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 488-89 (1973);

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The Appeal Board has also noted that part-time residence, such as that of a student, is not necessarily fatal to a particular petition. Watts Bar, ALAB-413, supra, at 1421.

However, when considering part-time residence as a basis for standing, it may well be relevant how long a petitioner is likely to remain in the area. M.

, Duquesne Light Company (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 244 at n.2 (1973).

Further, under Section 2.713 of the Commission's Rules of Practice, a " partnership, corporation or unincorporated association may be repre-sented by a duly authorized member or officer, or by an attorney-at-law."

10 C.F.R. 9 2.713(b) (emphasis added). Thus, where an organiza-tion is represented by one of its members, the member must demonstrate authorization by that organization to represent it. This demonstration is normally required to be made in the written notice of appearance.O 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.

4f 10 C.F.R. 9 2.713 provides, in part:

Any person appearing in a representative capacity shall file with the Commission a written notice of appearance which shall state his or her name, address, and telephone number; the name and address of the person on whose behalf he or she appears; and,' in the case of an attorney-at-law, the basis of his or her eligibility as a representative or, in the case of another representative, the basis of his or her authority to act on behalf of the party.

I 2.

Petitioners Must Meet the " Aspect" Requirements of 10 C.F.R. 6 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." 10 C.F.R. f 2.714(a)(2).E 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 action 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 Septem-ber 21, 1979, slip. op. at 6 (unpublished Order).

B.

Requirements for Participation Pursuant to 10 C.F.R. 6 2.715(c) as Interested State 10 C.F.R. 5 2.715(c) of the Commission's Rules of Practice provides, in part:

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10 C.F.R. 9 2.714 also requires the petitioner to file

"...a supple-ment 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 speci-fi ci ty". 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." By Order dated November 13, 1981, the Licensing Board has stated that such supplements to the petitions must be filed by December 2,1981. The NRC Staff will respond to the contentions set forth in the 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. 6 2.714 contention requirements.

, The presiding officer will afford representatives of an interested state, county, municipality, and/or agencies thereof a reasonable opportunity to participate and to introduce evidence, interrogate witnesses and advise the Commission without requiring the representatives to take -

a position with respect to the issue. y Thus, the right to participate conferred by the Atomic Energy Act on the State, where the nuclear facility is located,k has been extended to interested counties, municipalities, and/or agencies thereof. U It is clear, however, that the Commission in providing such participation had in mind the participation of governmental units (States, Counties and municipalities), and agencies of such governmental units through their authorized representatives and did not intend by the language of 6]

Although a governmental unit seeking participation pursuant to this regulation need not state contentions, once in the proceeding it must comply with all the procedural rules and is subject to the same requirements as other parties appearing before the Board.

Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760 (1977).

Further,10 C.F.R. 9 2.715(c) previces that the representative of such governmental unit may be required by the Board to indicate with reasonable specificity in advance of the hearing the subject matters on which he desires to participate.

7f Section 274.1 provides:

With recpect to each application for Commission license authorizing an activity as to which the Commission's authority is continued pursuant to subsection c., the Commission shall give prompt notice to the State or States in which the activity will be conducted of the filing of the license application; and shall afford reasonable opportunity for State representatives to offer evidence, interrogate witnesses, and advise the Commission as to the application without requiring such representatives to take a position for or against the granting of the application.

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The opportunity to participate pursuant to 10 C.F.R. Q 2.715(c) has also been extended to states other than where the facility is located; Exxon Nuclear Company, Inc. (Nuclear Fuel Recovery and Recycling Center), ALAB-447, 6 NRC 873 (1977).

, Section 2.715(c) to give representatives of such governmental units the right to participate pursuant to 10 C.F.R. 9 2.715(c) in their own right. I III.NRCSTAFFRESPONSETOPETITIONSFORLEAVEh0 INTERVENE A.

The Petition of Friends of the Earth for Leave to Intervene Must be Amended in Order to Establish This Organization's Standing to Intervene in this Proceeding Friends of the Earth (F0E), a national environmental group, has petitioned for leave to intervene in this proceeding on its own behalf and on behalf cf its members. The injury alleged by F0E is a general-ized injury to its members from the continued operation of the Indian Point Units. Such generalized injury is insufficient to estatJish the organization's standing to intervene in the proceeding on its own behalf.

See Ten Applications, CLI-77-24, supra.

This portion of F0E's petition should, therefore, be denied.

F0E has also petitioned for leave to intervene on behalf of certain sponsors or members of the organization.

It appears from F0E's petition that at least some of the named sponsors or members reside in "geographi-cal proximity" to the Indian Point Units.

North Anna, ALAB-522, supra.

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The Statements of Consideration to Part 2 provides in part (43 Fed.

Reg. 17798, April 26, 1978):

(b)

Section 2.715(c) of the Commission's Rules of Practice permits interested States to participate in NRC licensing proceedings without taking a position with respect to the i

issues.

Pursuant to Section 161 of the Atomic Energy Act, which grants broad discretionary authority to the Commission to cbtain information, make investigations or hold hearings as it deems necessary, this type of cooperation could be extended to other units of government which also have an interest in the licensing proceeding.

(emphasis added).

The named individuals appear to reside within.50 miles of the Indian Point site.

Petition for Leave to Intervene at 2 (November 4,1981).

F0E further alleges that the personal safety of its members and the individuals with whan it regularly communicates has been and will con-tinue to be affected by the operation of Indian Point.

Id.

F0E claims that it has been specifically authorized by the named sponsors or members to represent their interests in the Indian Point proceeding.

Id.

In order to gain standing as a representative of particular members, an organization must provide some concrete indication that at least one member whose interest might be affected by the outcome of the proceeding has specifically authorized the organization to repre-sent that member.

See Allens Creek, ALAB-535, supra.

Since there may be a difference between " membership in" and " sponsorship of" an organization, and Commission precedent clearly refers to members of organizations, F0E should either provide the authorization of an actual member of the organization or explain why members and sponsors have equivalent status.

F0E has failed to show which of the individuals named in its petition is actually a member of the organization rather than a sponsor.

In addition, F0E has failed to give concrete indication that one of the named members of the organization has authorized F0E to represent him or her.

Until such a showing is made, F0E's petition is defective. This showing should, to provide a concrete indication of authorization, involve a written statement on the part of the member authorizing F0E's representation.

Pursuant to 10 C.F.R. 9 2.713 of the Commission's regulations, an organization may be represented by a duly authorized member or officer, i

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or by an attorney-at-law.

F0E's petition is signed by the organization's Mid-Atlantic representative.

The petition does not indicate whether this person is a duly authorized member or officer of F0E. Therefore, this petition must be amended to demonstrate that its signer has been author-ized by the organization to act as its representative in' this proceeding.

Petitioner F0E lists a number of specific issues as to which it wishes to intervene.

Two of the listed issues relate to the adequacy of emergency planning at Indian Point. These two issues fall within the scope of this proceeding as outlined by the Commission in its six questions set forth in its Order of January 8,1981, as amended September 18, 1981.

The issue of the probability of a catastrophic accident at Indian Point relates to the Commission's first question, and is, therefore, within the scope of this proceeding. The remaining issues listed by F0E fall outside the scope of this proceeding. The question of alternative energy sources which is raised by F0E does not relate to any of the questions set forth by the Commission in the above-mentioned orders. The question of the compatibility of the continued operation of Indian Point with the national security is also not clearly part of the Commission's questions.

Since F0E has identified some issues which are within the scope of this proceeding, it has met the aspects requirement of 10 C.F.R. 5 2.714(a)(2).

In sum, while F0E has met the " aspect" requirements of 10 C.F.R.

s 2.714(a)(2) it has failed to demonstrt,te that at least one of its members having an interest which might be adversely affected by the outcome of this proceeding has specifically authorized the organization to represent him or her.

In addition, the petition fails to demonstrate

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. that F0E will be represented by a duly authorized member or officer of the organization. Therefore, F0E's petition must be amended in order to establish this organization's standing to intervene in this proceeding.

B.

The Petition for Leave to Intervene of the West Branch Conservation Association Must be Amended in Order to Establish This Organization's Standing to Intervene in This Proceeding The West Branch Conservation Association (WBCA), an organization of residents of North Clarkstown/Ramapo, has petitioned for leave to inter-vene in this proceeding on its own behalf and on behalf of its members.

The injury asserted by WBCA on its own behalf is a generalized injury to its members.

Such generalized injury is insufficient for the WBCA to gain standing to intervene in this proceeding on its own behalf. Ten Applications, CLI-77-24, supra.

WBCA also alleges that it seeks leave to intervene in this proceed-ing on behalf of certain sponsors or members of the organization.

It appears from WBCA's petition that the named sponsors or members reside in " geographical proximity" to the Indian Point Units.

North Anna, ALAB-522, supra. The members named in the petition all reside in New City, New York which is located within 50 miles of the Indian Point facilities.

Petition for Leave to Intervene at 2 (November 2,1981)

(hereinafter WBCA petition). WBCA claims that all of the above-named sponsors or members have a cognizable interest in the outcome of this proceeding.

Id. WBCA further alleges that the personal safety of its members and the individuals with whom it regularly communicates has been and will continue to be affected by the operation of Indian Point.

Id.

WBCA claims that it has been specifically authorized by the named sponsors or members to represent their interests in the Indian Point

. proceeding.

Id.

In order to gain standing as a representative of particular members, an organization must provide some concrete indication that at least one member whose interest might be affected by the outcome of the proceeding has specifically authorized the organization to repre-sent that member.

See Allens Creek, ALAB-535, supra. WBCA has failed to show which of the individuals named in its petition is actually a member of the organization rather than a sponsor.

In addition, WBCA has failed to give concrete indication that one of the named members of the organization has authorized WBCA to represent him or her.

Until such a showing is made, WBCA's petition is defective. This showing should, to provide a concrete indication of authorization, involve a written statement on the part of the member authorizing WBCA's representation.

Pursuant to 10 C.F.R. 9 2.713 of the Commission's regulations, an organization may be represented by a duly authorized member or officer, or by an attorney-at-law. WBCA's petition is signed by an individual who gives no indication of her relationship to WBCA. The petition does not indicate whether this person is a duly authorized member or officer of WBCA. Therefore, this petition must be amended to demonstrate that its signer has been authorized by the organization to act as its representa-tive in this proceeding.

WBCA sets forth a number of issues with regard to which it wishes to intervene. Many of the issues relate to emergency planning at Indian Point.

For example, WBCA questions the feasibility of evacuation in the event of an emergency at Indian Point.

Emergency planning is one of the issues the Commission has designated as a proper subject of this pro-ceeding. Therefore, the emergency planning issues are generally within

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. the scope of the proceeding.

However, one emergency planning issue which WBCA mentions is the " feasibility of the ten mile limit inside which we reside as a demarcation." WBCA petition at 3.

The Staff is uncertain of the meaning of this issue, but notes that it could constitute a challenge to the Commission's emergency planning regulations. Therefore, the Staff does not consider this to be an appropriate aspect for interven-tion in this proceeding. WBCA also mentions:

"The safety and possible realistic life of the physical plants #2 and #3."

This aspect is vague and is, therefore, not a proper aspect for intervention in this proceeding.

In sum, at least one of the issues set forth by WBCA in its petition meets the ' aspect" requirements of 10 C.F.R. 5 2.714(a)(2) of the Commis-l sion's regulations.

However, the petition fails to demonstrate that at least one individual, who has the requisite interest and who is actually a member of WBCA rather than a sponsor of that organization, has specifically authorized WBCA to represent him or her.

In addition, the petition fails to demonstrate that WBCA will be represented by a-duly authorized member or officer of the organization. Therefore, WBCA's petition must be amended in order to establish this organizatio.'s standing to intervene in this proceeding.

C.

The Petition of the Westchester People's Action Coalition, Inc., for Leave to Intervene fiust be Amended in Order to Establish This Organization's Standing to Intervene in This Proceeding The Westchester People's Action Coalition, Inc. (WESPAC) has petitioned for leave to intervene on its own behalf and on behalf of

. its members. The injury asserted by WESPAC on its own behalf is a generalized injury to its members. Such injury is insufficient to give WESPAC standing to intervene in this proceeding on its own behalf.

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Ten Applications, CLI-77-24, supra.

WESPAC has also petitioned for leave to intervene in this proceeding on behalf of certain members. The petiticn names several members who, the petitioner alleges, have a cognizable interest in this proceeding cad who have specifically authorized WC.SPAC to represent them.

From the petition it appears that these individuals reside in " geographical proximity" to the Indian Point Units.

North Anna, ALAB-522, supra. All of the named individuals appear to reside within 50 miles of the Indian Point site.

The petition claims that their personal safety and health will be directly affected by the outcome of this proceeding. Petition for Leave to Intervene at 2 (November 5,1981) (hereinafter WESPAC petition).

Although WESPAC's petition states that it is specifically authorized to represent the named meinbers, there is no statement from any one member to that affect. Allens Creek, ALAB-535, supra. Therefore, a concrete indication that the organization is specifically authorized to represent at least one member with the requisite interest has not been provided.

Pursuant to 10 C.F.R. 9 2.713 of the Commission's regulations, an organization may be represented by a duly authorized member or officer, or by an attorney-at-law. The petition is signed by WESPAC's Co-cnairperson. However, the name of counsel is also provided.

The Staff assumes that WESPAC will be represented by counsel in this pro-ceeding.

If this assumption is incorrect, the petition should be amended

. RCSE also seeks leave to intervene on behalf of its members. The petition claims that the organization has been specifically authorized te represent certain individuals all of whom are members or sponsors of.

the organization, and all of whom have a cognizable interest in this proceeding. Petition for Leave to Intervene at 2 (November 6,1981)

(hereinafter RCSE petition).

It appears from the petition that the named sponsors and members reside in " geographical proximi;y" to the Indian Point plants.

North Anna, ALAB-522, supra. The named individuals appear to reside within 50 miles of the Indian Point site.

RCSE further alleges that the personal safety of its mmbers and the individuals with whom it regularly communicates has been and will continue to be affected by the operation of Indian Point.

RCSE petition at 2.

PCSE claims that it has been specifically authorized by the named sponsors or members to represent their interests in the Indian Point proceeding.

Id. As mentioned in Sections III. A and III.B. supra, in order to gain standing as a representative of particular members, an organization must provide some concrete indication that at least one member whose interest might be affected t,y the outcome of the proceeding has specifically authorized the organization to represent that member.

See Allens Creek, ALAB-535, supra.

RCSE has failed to show which of the individuals named in its petition is actually a member of the organi-zation rather than a sponsor.

In addition RCSE has failed to give con-crete indication that one of the named members of the organization has authorized RCSE to represent him or her.

Until such a showing is made, RCSE's petition is defective. This showing should, to provide a concrete

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- indication of authorization, involve a written statement on the part of the member authorizing RCSE's representation.

Petitioner RCSE has also failed to identify with particularity any aspects within the scope of this proceeding on which it wishes to inter-vene.

Petitioner's first concern is with the " theoretical adequacy of the proposed emergency evacuation plan." RCSE petition at 3.

It is difficult to determine from this statement whether this aspect relates to any of the emergency planning issues set forth for investigation by the Commission. The second interest is in whether any emergency plan is able to work. This philosophical question has not been posed by the Commission as a matter for adjudication in this proceeding.

RCSE next asserts interest in the " practical ability of each designated agency, department, unit, etc., to accomplish its assigned task."

Id.

It is difficult to determine whether this interest is directed to the emergency plans for Indian Point, or to energency plans in general.

The same defect is present in their statement of interest with respect to communications throughout the " emergency response system." RCSE next wishes to discus 3 the costs to the citizens of Rockland County of maintaining "reaof status." This interest would not be encompassed in any of the issues set forth by the Commission for investigation in this proceeding. RCSE's final interest is in "the time element (lag time) necessary for implementation of an emergency evacuation plan, and the safety of the citizens of Rockland County in the interim in view of the continuing operation of Indian Point." The Staff is unsure of the meanir.g of this stated interest, but i*t does not seem to fall within the scope of the proceeding as outlined by the Commission.

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. In sum, petitioner RCSE has failed to identify a member of the organization who has specifically authorized RCSE to represent him or her.

In addition, RCSE has not identified with particularity the aspects

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of the proceeding as outlined by the Commission with respect to which it wishes to intervene. Therefore, RCSE's petition must be amended in order to establish this organization's standing in this proceeding.

E.

The Petition for Leave to Intervene of the New York City Audubon Society Must be Amended in Order to Establish This Organization's Standing in This Proceeding The New York City Audubon Society (NYC Audubon) seeks leave to intervene in this proceeding on behalf of its members whose health and safety, petitioner claims, would be affected by a severe accident at the Indian Point plants.

Petition to Intervene at 2 (November 6,1981)

(hereinafter Audubon petition). The petition names several individuals who apparently reside in " geographical proximity" of the Indian Point site. North Anna, ALAB-522, supra. All the named individuals appear to reside within 50 miles of the Inidian Point site.

However, the petition does not provide any concrete indication that at least one of the named members has specifically authorized representation by NYC Audubon.

Allens Creek, ALAB-535, supra.

Pursuant to 10 C.F.R. 9 2.713 of the Commission's regulations, an organization may be represented by a duly authorized member or officer, or by an attorney-at-law. NYC Audubon's petition is signed by the director of NYC Audubon. This petition does not indicate whether this person is a duly authorized member or officer of NYC Audubon.

Therefore, this petition must be amended to demonstrate that its signer has been 1

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. authorized by the organization to act as its representative in this proceeding.

NYC Audubon has identified several issues as to which the organiza-tion wishes to intervene and which fall within the scope of this proceed-ing as outlined by the Commission. These issues include the consequences of a severe accident at Indian Point, and the adequacy of emergency planning to protect the health and safety of the residents of affected areas including New York City.

Petitioner also seeks intervention on.

the issues of the effects of nomal operation and " abnormal emissions."

These issues are not within the scope of any of the issues set forth by the Commission. Petitioner also wishes to discuss whether "the emergency planning is sufficient to protect the environment in the event of an accident at Indian Point Units 2 and 3."

This interest is vaguej and it is not clear that it falls within the scope of this proceeding.

In sum, petitioner has identified with particularity an aspect of the proceeding in which it wishes to intervene as required by 10 C.F.R. 9 2.714(a)(2). However, Petitioner has failed to show that at least one of its members has specifically agreed to be represented by the organization.

In addition the petition fails to demonstrate that its signer is authorized to represent NYC Audubon in this proceeding.

Therefore, NYC Audubon's petition must be amended in order to establish this organization's standing to intervene in this proceeding.

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F.

The Petition of the Greater New York Council on Energy Must be Amended in Order to Establish This Organization's Standing to Intervene in This Proceeding The Greater New York Council on Energy (GNYCE) has petitioned for leave to intervene on behalf of certain named members who apparently reside in " geographical proximity" to the Indian Point facilities.

North Anna, ALAB-522, supra. All the named members appear to reside within 50 miles of the Indian Point site.

Petitioner claims that the health and safety of these named members would be atfected by continued operation at Indian Point.

Petition for Leave to Intervene at 2 (November 6,1981) (hereinafter GNYCE petition).

However, Petitioner GNYCE has failed to demonstrate that any of the named members has agreed to be represented by the organization. Allens Creek, ALAB-535, supra.

Such demonstration should take the fonn of a written statement of authorization prepared by one of the named members.

Pursuant to 10 C.F.R. $ 2.713 of the Commission's regulations, an organization may be represented by a duly authorized member or officer, or by an attorney-at-law.

GNYCE's petition is signed by the director of GNYCE. This petition does nnt indicate whether this person is a duly authorized mamber or officer of GNYCE. Therefore, this petition mus be acended to aemonstrate that its signer has been authorized by the organ-ization to act as its representative in this proceeding.

GNYCE has set forth issues with respect to which it wishes to inter-vene.

Most of then are too vague for a clear determination to be made as to whether they are within the scope of this proceeding. However, GNYCE is concerned with the future improvements in emergency planning, which is the subject of the Commission's fourth question.

In sum, GNYCE has met the aspects renuirement of 10 C.F.R. 9 2.714(a)(2) of the Commission's regulations. However, Petitioner has failed to demonstrate that it is authorized to represent at least one member whose interest might be adversely affected by the outcome of this proceeding. Accordingly, GNYCE's petition must be amended in order to establish this organization's standing to intervene in this proceeding.

G.

The Joint Petition for Leave to Intervene of Union of Concerned Scientists and the New York Public Interest Research Group Must Be Amended In Order To Establish Standing to Intervene in this Proceeding The Union of Concerned Scientists and the New York Public Interest Research Group (UCS-NYPIRG) have jointly petitioned for leave to intervene in this proceeding. b In this joint petition UCS-NYPIRG peti-tions the Board on behalf of the two organizations and on behalf of the members of both organizations.

The only injury asserted by UCS-NYPIRG on its own behalf is a generalized injury to the members of both organi-zations.

Such an injury is not sufficient to give UCS-NYPIRG standing to intervene jointly in this proceeding. Ten Applications, CLI-77-24, supra.

UCS-NYPIRG has petitioned for leave to intervene on behalf of members asserted to reside in " geographical proximity", North Anna, ALAB-522, supra, to the Indian Point Plants and who have assertedly authorized UCS-NYPIRG to represent their interests in the Indian Point hearing before the Commission. Joint Petition for Leave to Intervene W Since the two organizations have filed a joint petition, the NRC Staff treats UCS-NYPIRG as a single joint petitioner.

. by the Union of Concerned Scientists and the New York Public Interest Research Group at 3 (November 6, 1981). E The petition alleges that, among other things, the personal health and safety of the UCS-NYPIRG members would be affected by' an accident at the Indian Point facilities. Although there are no statements of authorization from individual members, affidavits have been attached which state that the affiants have personally spoken with the named individuals and that these individuals have specifically authorized UCS-NYPIRG to represent their interests in this proceeding. The Staff believes that this is not sufficient to establish that UCS-NYPIRG has been specifically authorized to represent the interests of the named members in this proceeding.

It is not clear due to affiant Pollard's reference to " sponsors" instead of members whether the named individuals in the joint petition are in fact members of UCS.

Since there is some confusion as to whether UCS has identified any members whose interest might be affected by the proceeding and Commission precedent clearly refers to " members" of an organization,Section II.A.1, supra, this petition must be amended before UCS-NYPIRG may gain standing to inter-vene in this proceeding.

Further, UCS-NYPIRG should be required to

-12/ With regard to UCS there is some confusion as to whether the named individuals are members of UCS or sponsors of that organization.

The affidavit accompanying this petition claims they are sponsors.

However, in the petition itself they are referred to as members.

13/ See also Washington Public Power Supply System (WPPSS Unit 2),

LBP-79-7, 9 NRC 330 and the Appeal Board's reference to that decision in Allens Creek, ALAB-535, supra at 399 n. 30.

. indicate who will be the joint representative in this hearing and that such representative is authorized to act for UCS-NYPIRG in this pro-ceeding.

See 10 C.F.R. l 2.713.

UCS-NYPIRGhasidentifiedcertainissueswhichhallwithinthe scope of this proceeding as outlined by the Commission in its six questions set forth in its Order of January 8,1981, as amended Septem-ber 18, 1981. These include issues concerning the adequacy of the emergency planning and consequences of a severe accident at Indian Point. These issues are sufficient to satisfy the " aspect" requirements of 10 C.F.R. 9 2.714(a)(2). The Staff notes, however, that one of the issues asserted by UCS-NYPIP.G, issue 6(b), appears to raise an imper-missible challenge to the 10-mile Emergency Planning Zone established by the Commission in 10 C.F.R. Part 50, Appendix E.

See 10 C.F.R. Q 2.758.

In sum, UCS-NYPIRG satisfies the " aspect" requirements of 10 C.F.R. 5 2.714(a)(2). However, due to the deficiencies noted above the joint petition of UCS-NYPIRG must be amended to establish standing to inter-vene in this proceeding.

H.

The Petition for Leave to Intervene of Parents Concerned About Indian Point Must be Amended in Order to Establish Standing of This Organization to Intervene in This Proceeding Parents Concerned About Indian Point (Parents) has petitioned for leave to intervene in this proceeding on behalf of its members and their families who reside in " geographical proximity" to the Indian Point f

Units. The petition lists the addresses of 5 members who appear to reside within 50 miles of the Indian Point Units and notes their members' health and safety concerns due to continued operation of the units.

, )

Petition for Leave to Intervene at 1 (November 5,1981) (hereinafter Parents petition).

Parents assert that these named members and their families have

/

authorized it to rep.'esent their interests in this proceeding.

Accordingly, Parents has-identified at least one member with the requisite personal interest. See North Anna, ALAB-522, supra; Watts Bar, ALAS-328, supra. However, more than the assertion of authorization is needed to verify that Parents represents such members in this proceeding.

In order to gain standing as a representative of particular members, an organization must provide some concrete indication that at least one member whose interest might be affected by the outcome of the proceeding has specifically authorized the organization to represent that member.

See Allens Creek, ALAB-535, supra. This indication'should be a written statement on the part of the member authorizing Parents' representation.

Moreover, the Commission's regulations require that an organization be represented by a duly authorized member or~ officer or by an attorney-a t-l aw.

10 C.F.R. 9 2.713. The Parents' petition is signed by one of its members.

However, there is no showing that such person has been authorized to represent Parents in this proceeding.

The petition also states that Parents represents the interests of the members' families.

Parents Petition at 1 and 2.

At the outset of this response it was stated that an organization cannot represent persons other than its own members. Watts Bar, ALAB-413, supra at 1421; Enrico Fermi, ALAB-470, supra at 474 n.1.

Here, however, the Parents' central concern is "to protect the interests of their children" who they assert could be injured by an accident at the Indian Point I

t

. Nuclear Power Plants. The Appeal Board has specifically stated that a parent may represent the interests of a minor or person under legal disability.

Enrico Fermi, ALAB-410, supra. Accordingly, to the extent Parents is asserting the interests of its members and their minor children Parents is asserting an appropriate representative interest.

The petition of Parents lists three issues which it notes it will develop further in formal contentions.

Parents petition at 2.

One of these issues relates to accident risk ar J another relates to adequacy of the emergency plan. These issues fall within the scope of this proceed-ing as outlined by the Commission in its six questions set forth in its Order of January 8,1981, as amended September 18, 1981. More speci-fically, Parents' first issue, to the extent it concerns physical health of the cnildren due to an accident, b relates to the Commission's first question and is, therefore, an aspect within the scope of this proceeding.

The Parer.ts' second issue regarding the adequacy of the emergency plan relates to the Commission's third question and is, therefore, an aspect within the score of this proceedinc. The Parents' final issue is not an appropriate aspect since it is so broadly stated that it is impossible to determine whether it is encompassed by any of the Commission'., six I

questions.

[

--14/ The Commission has twice denied requests to admit contentions based on psychological stress.

Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), CLI-80-39,12 NRC 607 (1980);

Memorandum and Order dated September 17, 1981 (CLI-81-20) 14 NRC Accordingly, aspects concerning psychological and emotional stress are bey ~nd the scope of the instant proceeding.

See Parents' o

petition at 2.

In sum, Parents has identified a member with a cognizable interest under 10 C.F.R. f 2.714 but has failed to demonstrate that such member has authorized it to represent such interest in this proceeding.

Further, Parents has not demonstrated that the person who signed the petition is authorized to represent it.

Since Parents has identif'ed some issues which are within the scope of this proceeding, it has met the " aspect" requirements of 10 C.F.R. Q 2.714(a)(2). Accordingly, this petition must be amended in order to establish this organization's standing in this r

proceeding.

I.

The Petition for Leave to Intervene of the County of Rockland Satisfies the Standing Requirements of 10 CFR 6 2.714 The County of Rockland (Rockland), on its own behalf and on behalf of its citizens and members has petitioned for leave to intervene pursuant to 10 C.F.R. 6 2.714. The petition which was filed by the County Attorney asserts that a substantial portion of Rockland County is located within a ten-mile radius of Indian Point Units 2 and 3, and that approximately 114,000 of its citizens live within the emergency planning zone.

Petition for Leave to Intervene at 2 (November 6,1981). Due to the " geographical proximity" of its citizens to the Indian Point Units 2 and 3, and the stated concern about the health and safety of the citi-zens due to continued operation of Units 2 and 3 (_Id.), the Staff believes that Rockland County has stated a requisite " interest" in accordance with 10 C.F.R. 9 2.714.

North Anna, ALAB-522, supra.

j e

28 -

The Rockland County petition lists two specific issues which it bases its intervention request.

Petition at 3.E Both issues fall within the scope of this proceeding as outlined by the Commission in its six questions set forth in its Order of January 8,1981, bs amended Septem-ber 18,1981. Rockland's first issue concerning the current e.catus of conformance of the emergency plan with NRC/ FEMA guidelines and its relevance to the risk posed by the two plants oLviously relates to and is within the scope of the Commission's third question.

Rockland's second issue concerning the improvements in the level of emergency plan is obviously related to and is within the scope of the Commission's fourth question. Accordingly, the Staff believes t'.at Rockland has satisfied the " aspect" requirement of 10 C.F.R. 9 2.714.

In sum, the Staff believes that Rockland's petition has demonstrated that it has met the " interest" and " aspect" requirements of 10 C.F.R. 6 2.714. Accordingly, the Staff believes that Rockland has established standing to intervene in this proceeding.

IV. REQUESTS TO PARTICIPATE PURSUANT TO 10 C.F.R. 6 2.715(c)

A.

Robert Abrams, Attorney General of the State of New York Robert Abrams, Attorney General of the State of New York, requests the opportunity to participate in this proceeding "as a representative of the State of New York" pursuant to 10 C.F.R. 6 2.715(c).

Petition for y The general statement (Rockland petition at 2) that Rockland seeks to intervene on all issues regarding the alth, safety and welfare of the Citizens of Rockland County is so broad that it is impossible to make'a determination whether such issues are within the scope of the Commission's six questions and accordingly acceptable " aspects".

y

. Intervention at 1 (October 29, 1981). The NRC Staff supports and welcomes the Attorney General's request. E B.

New York State Energy Office The New York State Energy Office (Energy Office) through its General Counsel, Stanley B. Klimberg, requests the opportunity to participate in this proceeding "on behalf of the State of New York and its interested agencies" pursuant to 10 ;.F.R. 9 2.715(c).

Petition for Leave to Participate at 2 (November 6,1981). The Energy Office states that under Section 7-101 of the New York State Energy Law and Section 104 of the New York State Common Law it has been given the responsibility for coordinating regulatory programs of New York State agencies and instrumentalities which affect atomic energy activities in New York for developing a coordinated position among State agencies with respect to Federal regulatory matters and for coordinating participation of the State agencies and instrumentalities in Federal proceedings affecting atomic energy activities in the State of New York.

Id_. at 1 and 2.

In light of this authority, the NRC Staff supports the Energy Office's request.

See Seabrook, CLI-77-25, supra.

C.

The Port Authority of New York and New Jersey The Port Authority of New York and New Jersey (Port Authority) i requests the opportunity to participate in this proceeding pursuant to l-10 C.F.R. 5 2.715(c). The Port Authority asserts that it is an agency of I

1_6f Public Service Company of New Hampshire (Seabrook Station, Units 1 6

l and 2)', CLI-77-25, 6 NRC 535, 537 (1977). The Commission stated in I

that decision that participation of an interested state in NRC proceedings "...is always desirable."

1 I

' the States of New York and New Jersey, created by interstate compact between them, to which Congress consented. Petition to Intervene at 1 (October 23,1981). Accordingly, the NRC Staff supports the Port Authority's request. E D.

The New York State Assembly and It3 Special Committee on Nuclear Power Safety The New York State Assembly and its Special Committee on Nuclear Power Safety (State Assembly) ias filed a request to participate in this proceeding pursuant to 10 C.F.R. f 2.715(c). The request indicates that the State Assembly is one house of a co-equal branch of the government of New York comprised of members elected to represent and protect the citizens of New York State, including their health, welfare and safety.

Petition to Intervene at 1 (October 4,1981).

The State Assembly also shares the state responsibility for emergency planning and funding.

Id. The request further indicates that the State Assembly's Special d

Committee has conducted inquiries into issues of nuclear power and sa fety. H. at 2.

The NRC Staff supports the instant request provided that the State Assembly identifies its representative and provides the

-17/ The Staff notes thac the Port Authority reserves the "right to move at such later time as its interest may require pursuant to the provisions of 10 C.F.R. Section 2.714 for formal ' party' status."

M.at3. The Staff obiects tc such reservations. Any filing for leave to intervene after the time specified in the October 7,1981 Federal Register notice would be late and accordingly must address the factors identified and set forth in 10 C.F.R. 9 2.71' la)(1) as well as the other requirements of 10 C.F.R. l 2.714 to obtain full Nuclear Station, Unit 2)politan Edison Company (Three Mile Island party status. See Metro

, ALAB-384, 5 NRC 612, 615 (1977); see also Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683, 689-653 (1980).

. Board with some assurance that such person has been authorized to repre-sent the State Assembly in this proceeding.

See 10 C.F.R. 9 2.713.

E.

Ruth Messinger, Miriam Friedlander, Carol Greitzer, Stanley E. Michels, Susan D. Alter, Edward C. Wallace, Mary Pinkett, Mary T. Codd, Gilberts Gerena-Valentin, and Arthur J. Katzman - Members of the Council of the City of New York Each of the above-named individuals asserts that they are members of the Council of the City of New York (NYC Council) and are each a representative of a municipality.

Petition for Intervention at 1 (November 6,1981). Accordingly, they request, pursuant to 10 C.F.R. 9 2.715(c), the opportunity to participate in this proceeding as an interested state.

It is not clear to the Staff whether these individuals are petitioning on behalf of themselves or the NYC Council.

Since section 2.715(c) was written to provide only governmental units, such as the NYC Council, the opportunity to participate in NRC licensing proceedings through an authorized representative,E the NRC Staff treats the instant request as one on behalf of the NYC Council.

Accordingly, the NRC Staff supports the request that the NYC Council be provided an opportunity to participate in this proceeding pursuant to 10 C.F.R. 9 2.715(c) provided NYC Council identifies an individual to represent the NYC Council and provides the Board with some assurance that such individual has been authorized to represent the NYC Council in this proceeding. See 10 C.F.R. 9 2.713.

18f See note 9, supra.

8

. F.

Alfred B. DelBello, Executive of the County of Westchester Alfred B. De18ello, Executive of the County of Westchester in the State of New York (County), requests the opportunity to participate in this proceeding pursuant to 10 C.F.R. 5 2.715(c). Mr. DelBello states that the Indian Point nuclear power facilities are located in Buchanan, New York, within the County of Westchester and that questions regarding the safety of the facilities are of concern to the residents of the County. Petition at 1 (November 6,1981).

'he NRC Staff supports this request provided Mr. DelBello provides the Board with some assurance that he is requesting opportunity to participate pursuant to 10 C.F.R. 5 2.715(c) on behalf of the County of Westchester and that such repre-sentation has been authorized by the County.E See 10 C.F.R. $ 2.713.

j G.

The Metropolitan Transportation Authority The Metropolitan Transportation Authority (MTA) requests the opportunity to participate in this proceeding pursuant to 10 C.F.R. 9 2.715(c). E MTA states that it is a public benefit corporation and a political subdivision of the State of New York.

Petition for Leave to Intervene at 1 (November 4,1981). MTA states that it was created to

& See note 9, supra.

--20/ The Staff notes that MTA reserves the right to move under 10 C.F.R. 6 2.714 for full party status.

Petition for Leave to Intervene at 3 (November 4,1981). The Staff objects to such reservation. Any filing for leave to intervene after the time specified in the October 7,1981 Federal Register notice would be late and accord-ingly must address the factors identified and set forth in 10 C.F.R.

@ 2.714('a)(1) as well as the other requirements of 10 C.F.R. 6 2.714.

See Three Mile Island, ALAB-384, supra at 615.

ML20033A875

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