ML20038B971
| ML20038B971 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/07/1981 |
| From: | Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8112090380 | |
| Download: ML20038B971 (13) | |
Text
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12/07/81
-T UNITED STATES OF AMERICA g\\4 NUCLEAR REGULATORY CC'.MISS10N f
BEFORE THE ATOMIC SAFETY A@ LICENSING BOARD Cd h
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1 In the Matter of
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PUBLIC SERVICE COMPANY OF Docket Nos. 50-443 OL
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NEW HAMPSHIRE, et al.
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50-444 OL (Seabrook Station, Units 1 and 2)
NRC STAFF RESPONSE TO PETITIONS TO INTERVENE BY ROBERT F. PRESTON AND NICHOLAS J. COSTELLO I.
INTRODUCTION On October 19, 1981, the Nuclear Regulatory Commission published in the Federal Register a notice of opportunity for a hearing on the application by Public Service Co. of New 'iampshire, et al., for operating licenses for the Seabrook Station, Units 1 and 2 (46 Fed. M. 51330).
'ine notice stated that requests for hearing and petitions to intervene could be filed by November 18, 1981.
In response to the notice, the NRC received timely petitions to intervene from Robert F. Preston and Nicholas J. Costello. Mr. Preston is a resident of the Town of Hampton
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and a New Hampshire state senator. Mr. Costello describes himself as a
" resident and taxpayer in an area contiguous to Seabrook," and is a i
Massachusetts state representative.
II. THE REQUIREMENTS FOR INTERVENTION l
The basic requirements for intervention as a party in an NRC proceeding are described in 10 C.F.R. @ 2.714.
First, the petitioner 50 g0
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Ccrtified Ey t_h2 y
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' i must have standing to intervene. This is referred to in i 2.714(a) as an
" interest" in the proceeding. Second, the petitioner must identify the specific aspects of the subject matter of the proceeding as to which it wishes to intervene (9 2.714(a)(2)).
Finally, at least fifteen days prior to the first prehearing conference to be held in the proceeding the petitioner must file at least' one contention acceptable for litigation
($ 2.714(b)).
A.
Interest or Standing i 2.714(a)(2) of the Commission's Rules of Practice requires that a petitioner must "... set forth with particularity the interest of the petitioner in the proceeding, including the reasons why petitioner should be permitted to intervene..." Judicial tests of standing are to be applied to determine whether the showing establishes a legal right to intervene.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1and2),CLI-76-27,4HRC610,613-14(1976).. Accordingly, to t
satisfy the " interest" or " standing" test it must be found that:
(1) the petitioner will probably suffer an " injury in fact" as a result of the proposed licensing action;Il and (2) the alleged injury is within the
" zone of interests" to be protected by the statutes governing the NRC.U 1]
The " injury in fact" test requires that "... a cognizable interest of the petitioner might be adversely affected if the proceeding has one outcome rather than another." Public Service Co. of Indiana 4
(Marble Hill Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438, 439 (1980).
y The " zone of interest" test for judicial standing was established in A_ssociation of Data Processing Service Organizations v. Camp, 397 FOOTNOTE CONTINUED ON NEXT PAGE
An alleged potential injury may not be a generalized grievance shared by a large class of citizens, but must be a specific injury which the individual petitioner, in contrast to all members of the public, would suffer from the proposed action.
Transnuclear Inc., CLI-77-24, 6 NRC 525, 531 (1977).
Furthermore, in NRC practice, no one can be a private attorney general seeking to represent the "public interest."
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), ALAB-333, 3 NRC 804, 806 n.6 (1976); Long Island Lighting Co.,
(Shoreham Nuclear Power Station, Unit 1), LBP-77-11, 5 NRC 481, 484 (1977).
See also, Sierra Club v. Morton, 405 U.S. 727, 739-740, (1972),
and Allied-General Nuclear Services (Barnwell Fuel Receiving & Storage Station), ALAB-328, 3 NRC 420, 421-422 (1976), holding that a general interest in a problem is insufficient to confer standing.
An individual may represent only his or her own personal interests.
Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-470, 7'NRC 473, 474-75 at n.1 (1978).
See also, Warth v. Seldin, 422 U.S. 490, 508-14 (1975).
The question of standing of a legislator was specifically 2]
FOOTNOTE CONTINUED FROM PRECEDING PAGE U.S. 150 (1970).
The pertinent statutes to NRC proceedings are the Atomic Energy Act of 1954, as amended (42 U.S.C. Q 2011 et seq.),
e_t seq.)gy Reorganization Act of 1974, as amended (42 U.S.C. 5 5801 the Ener
, and the National Environmental Policy Act of 1969, as amended (42 U.S.C. 5 4332 et seq.). The zone of interest created by the Atomic Energy Act has been identified as "... an interest in the avoidance of a threat to health and safety as a result of radiological releases from the nuclear facility (either in normal operation or as a result of an accident)." Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-342, 4 NRC 98, 105 (1976).
See also, Public Service Co. of Oklahoma (Black Fox, Units 1 and 2), ALAB-397, 5 NRC 1143 (1977).
discussed by the Licensing Board in General Electric Co. (G.E. Test Reactor, Vallecitos Nuclear Center), LBP-79-28,10 NRC 578, 581-82 (1979). A legislator has a right to intervene only when it appears that he, personally, will be or might be, injured by the outcome of the proceeding.
A legislator cannot be granted standing based solely upon his status as a legislator.E The Commission's case law has determined that sufficient interest or standing is shown by a petitioner's residence within a 30-40 mile radius of the plant. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-197, 6 AEC 188, 190 (1973);
Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1976).
In addition to nearby residence, the pursuit of " normal, everyday activities" near the site has also been held as sufficient to support standing. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 (1974).
- However, because the NRC's authority extends only to matters of public health and safety or environmental impacts under the enabling statutes, allegations of economic harm do not confer standing. Houston Lighting and Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-582,11 NRC 239, 242 (1980).
Similarly, being a taxpayer does not give one standing as of right.
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1421 (1977).
3]
Pursuant to 10 C.F.R. Q 2.715(c) a state, county, municipality, or an agency of any of the foregoing, may participate as an " interested state." A legislator is not a governmental entity coming under this provision. General Electric Co., supra, at 582.
B.
Specific Aspect of the Proceeding In addition to demonstrating interest or standing, 9 2.714(a)(2) requires that a petitioner state the particular aspects of the subject matter under review which the petitioner seeks to litigate. The indication of the special concern need not be in the form of a legal issue but should identify the areas which the petitioner intends to pursue when submitting formal contentions.
Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-78-27, 8 NRC 275, 278 (1978). The subject matter so identified must be within the scope of a licensing proceeding or it cannot be raised.O III. THE PETITIONS A.
Robert F. Preston By timely petition dated November 17, 1981, Mr. Robert F. Preston seeks full party intervantion in this proceeding as an individual.
Petitioner is an elected New Hampshire state senator, serving District 23, " encompassing ten committees within the Seacoast area of New Hampshire." Petitioner describes his interest in the proceeding as resulting from his residence in the Town of Hampton, and occupation as a businessman in the Towns of Hampton and Seabrook. The petition further 4)
See e.g. the following cases where matters without the jurisdiction of the Commission or licensing board were ruled inappropriate for consideration: Babcock & Wilcox (Application for Consideration of Facility Export License), CLI-77-18, 5 NRC 1332,1348 (1977);
Allied-General Nuclear Services (Barnwell Fuel Receiving & Storage Area), ALAB-326, 3 NRC 420, 422-423 (1976); Long Island Lighting Co.
(Jamesport Nuclear Power Station), ALAB-292, 2 NRC 631 (1975).
. v identifies Mr. Preston's specific interest "in the final determination of evacuation procedures as it affects the health and safety of upwards of 100,000 people within a one or two mile radius of the planned facility" (Petition, p. 2).
1.
Interest or Standing For an individual to have standing he must demonstrate that he, (1) will probably suffer an injury in fact as a result of the proposed licensing action, and (2) that the injury is within the zone of interest protected by the statutes governing the NRC.
Public Service Co. of Indiana (Marble Hill Generating Station, Units 1 and 2), CLI-80-10,11 NRC 438, 439 (1980).
However, a showing of standing by a legislator must be based upon the legislator's personal interest and not his status as'an elected official.
See, General Electric Co., supra.
In the opinion of the NRC Staff, Mr. Preston has demonstrated the necessary personal interest for intervention as an individual in this proceeding.
As a resident of Hampton Mr. Preston may be presumed to have health, safety, and environmental interests which might be affected by operation of the plant.
See, Northern States Power Co., supra.
Furthermore, as a businessman in Seabrook, Mr. Preston's " base of normal, everyday activities" may give rise to a health and safety interest.
See, Gulf States Utilities
Co.,suoraat226.E Given the close proximity of his activities to the Seabrook site Mr. Preston has an understandable interest in the safe operation of the plant and the emergency plans being developed.
2.
Specific Aspect of the Proceeding As we have indicated, Mr. Preston has stated that he wishes to participate in areas of the proceeding concerning the evacuation plans for the area around the Seabrook facility. The designation of this aspect of the proceeding is sufficient to give notice of the subject matter petitioner wishes to litigate.
See, Consumers Power Co., supra.
Further, the subject is a matter which may be litigated in NRC proceedings. Thus Mr. Preston has properly designated, pursuant to 10 C.F.R. 9 2.714(a)(2), an aspect of the proceeding as to which he wishes to participate. The Staff would support admission of Mr. Preston as a party upon his submission of at least one admissible contention by supplement to the petition to intervene, at least fifteen days prior to a designated prehearing conference.
B.
Nicholas J. Costello By timely petition in the form of a letter dated November 16, 1981, Mr. Nicholas J. Costello seeks intervention in this proceeding 5f It should be noted that Mr. Preston's economic interests resulting from his business activities in Seabrook and Hampton may not con-stitute cognizable interests in NRC proceedings. Such concerns may be outside the " zones of interests" created by the Atomic Energy Act and the National Environmental Policy Act.
Houston Lighting and Power Co., supra.
... -. ~,.
as an individual.6,/ Petitioner is an elected Massachusetts state representative.
1.
Ir.terest or Standing For an individual to have standing he must demonstrate that he, (1) will probably suffer an injury in fact as a result of the proposed licensing action, and (2) that the injury is within the zone of interests protected by the statutes governing the NRC.
Public Service Co. of Indiana (Marble Hill Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438, 439 (1980).
In the view of the NRC Staff, petitioner has failed to particularize any such specific injury and therefo-e has failed to demonstrate standing to intervene as an individual in this proceeding.
A potential intervenor may only assert his or her own rights and interests to achieve standing - not the rights and interests of others or the general protection of the public.
Warth v. Seldin, supra; Detroit Edison Co., supra; Allied-General Nuclear Services, supra. This require-ment applies equally to state legislators.
See, General Electric Co.,
supra, holding that a legislator's showing of standing must be based upon the legislator's personal interests and not his status as an elected 6f In his petition Mr. Costello has failed to designate whether he is seeking intervention as a party to this proceeding under 10 C.F.R. 5 2.714 or whether he is seeking only limited non-party participation pursuant to 10 C.F.R. 5 2.715(a).
The Staff assumes that Mr. Costello is seeking full party intervention.
.g.
i official. Mr. Costello states only that "As a resident and taxpayer of an area contiguo;s to Seabrook, my input would serve to convey the interests of enousands of other citizens who live in this region and whose lives will be directly affected by the continuous operation of this facility." Mr. Costello's offer "to convey the interests of thousands of other citizens" is not a basis for hit standing as an individual.
Furthermore, his assertion is insufficient to show that he suffers a particular personal injury other than "a ' generalized grievance' shared in substantially equal measure by all or a large class of citizens...
[ citations]." Transnuclear Inc., supra at 531.
It is also well settled that petitioner's status as a taxpayer is not a sufficient personal interest. Tennessee Valley Authority, supra.1!
Although Mr. Costello has not demonstrated standing to intervene and his petition should now be denied, petitioners retain the right to amend their pleadings without leave of the Board until at least fifteen days prior to the time set for the designated prehearing conference.
If Mr. Costello can demonstrate a personal specific injury to his health, safety, or environmental interests protected by the statutes governing the NRC, he may be granted standing to intervene as an individual.
Z/
It should be noted that residence within "close proximity" of a nuclear facility is generally considered sufficient to show an interest to raise safety questions.
See, Northern States Power Co.,
supra.
Mr. Costello lists an Amesbury, Massachusetts address which would appear to be in close proximity to Seabrook Station.
This may give him an interest to intervene as an individual in this proceeding.
1 "t,
Petitioner may also seek limited participation as a non-party under 10 C.F.R. 6 2.715(a).
2.
Specific Aspect of the Proceeding As we have indicated,10 C.F.R. 5 2.714(a)(2) requires a petitioner to designate the specific aspects of the proceeding with which it is concerned. This designation is intended to give the parties and the Board notice as to the subject matters petitioner wishes to litigate.
See, Consumers Power Co., supra.
In his petition to intervene Mr. Costello has failed to meet this requirement.
For this reason also, Mr. Costello's petition should be denied subject to his right to amend the petition to cure the defects identified by the Staff.
IV.
CONCLUSION For the reasons set out above, the Staff believes that Mr. Robert F.
Preston has demonstrated standing to intervene and has identified specific aspects of the proceeding as to which he wishes to intervene.
Therefore, upon submission of at least one admissible contention he should be admitted as a party to this proceeding.
For the reasons set out above, the Staff believes that Nicholas J.
Costello has failed both to demonstrate standing to intervene and to designate specific aspects of the proceeding as to which he wishes to intervene. Therefore, his petition to intervene should now be denied, I
i subject to petitioner's right to amend the pleading to cure the defects identified by the Staff.
Respectfully submitted, Ql Edwin J. Re Assistant' Chief Hearing Counsel Dated at Bethesda, flarylard this 7th day of December, 1981.
UNITEE oTATES OF AMERICA NiELEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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PUBLIC SERVICE COMPANY OF Docket Nos. 50-443 OL NEW HAMPSHIRE, et al.
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50-444 OL (Seabrook Station, U ts 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO PETITIONS TO INTERVENE BY ROBERT F. PRESTON AND NICHOLAS J. COSTELLO" in the above-captioned proceeding have been served on the followino by deposit in the United States mail, first class, or, as indicated by an asterisk, through deoosit in the Nuclear Regulatory Commission's internal mail system, this 7th day of December,1981 :
Paul B. C otter, Jr., Esq., Chairman
- Docketing and Service Section*
Atomic Safety and Licensing Board Office of the Secretary Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Paula Gold, Asst. Atty. General Robert L. Chiesa, Esq.
Stephen M. Leonard, Asst. Attorney Wadleigh, Starr, Peters, Dunn & Kohls Jo Ann Shotwell, Asst. Attorney 95 Market Street Office of the Attorney General Manchester, NH 03101 Environmental Protection Division One Ashburton Place,19th Floor Lynn Chong B oston, MA 02108 Bill Corkum Gary McCool Nicholas J. Costello Box 65 1st Essex District Plymouth, NH 03264 Whitehall Road Amesbury, MA 01913 E. Tupper Kinder, Esq.
Assistant Attorney General Tomlin P. Kendrick Environmental Protection Division 822 Lafayette Road Office of the Attorney General P.O. Box 596 State House Annex Hampton, NH 03842 Concord, NH 03301 William S. Jordan, III, Esq.
Robert A. Backus, Esq.
Ellyn R. Weiss, Esq.
116 Lowell Street Harmon & Weiss P.O. B ox 516 1725 I Street, N.W.
Manchester, NH 03105 Suite 506 Washington, D.C.
20006
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' 4 Rep. Arnie Wight Phillip Ahrens. Esq.
State of New Hampshire Assistant Attorney General House of Representatives State House Station #6 Concord, NH 03301 Augusta, ME 04333 Paul A. Fritzche, Esq.
Donald L. Herzberger, MD Public Advocate Hitchcock Hospital State House Station #12 Hanover, NH 03755 Augusta, ME 04333 Edward J. McDennott, Esq.
Wilfred L. Sanders, Esq.
Sanders and McDermott Sanders and McDermott 408 Lafayette Road 408 Lafayette Road Hampton, NH 03842 Hampton, NH 03842 Sen. Robert L. Preston Thomas G. Dignan, Jr., Esq.
State of New Hampshire Senate Ropes & Gray Concord, NH 03301 225 Franklin Street Boston, MA 02110 Atomic Safety and Licensing Board Panel
- Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Panel
- Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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O Edwin J.
is Assistan Chief Hearing Counsel
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