ML20039B594
| ML20039B594 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/21/1981 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8112230281 | |
| Download: ML20039B594 (20) | |
Text
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12/21/81 0
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0ftMISSION BEFORE THE ATOMIC SAFETY AND LICENSING B0MD In the Matter of CONSOLIDATED EDISON COMPANY
)
Docket Nos. 50-247-SP g
0F NEW YORK (Indian Point, Unit 2 50-286-SP POWER AUTHORITY OF THE STATE OF
)
HECEfkr NEW YORK (Indian Point, Unit 3)
)
C g
5a 221981n 9h M g'x RESPONSE OF THE NRC STAFF TO THE AMENDMENTS TO PETITIONS ps A
0F UCS-NYPIRG, GNYCE, PARENTS, AND WESPAC FOR LEAVE TO INTERVENE AND AMENDMENTS TO REQUESTS OF THE Qx/ / 7 pM[..
COUNTY AND NYC COUNCIL FOR PARTICIPATION AS INTERESTED STATES I.
INTRODUCTION In response to this Board's invitation to petitioners to file any amendments or supplements to their petitions for leave to intervene pur-suant to 10 C.F.R. 6 2.714 or requests to participate pursuant to 10 C.F.R.
@ 2.715(c), Union of Concerned Scientists and New York Public Interest Research Group (UCS-NYPIRG), Westchester People's Action Coalition (WESPAC),
members of the Ccuncil of the City of New York (NYC Council), Greater New York Council on Energy (GYNCE), the Executive of the County of Westchester on behalf of the Citizens of the County (County),-and Parents Concerned About Indian Point' (Parents) timely filea amendments to their. respective petitions. E In its " Response of the NRC Staff to Petitions for Leave to Intervene and Requests for Participation as Interested States Filed in Response to if At the December 2,1981 prehearing conference in this proceeding, the Board ruled that petitioners had until December 10, 1981 to
]
file any amendments or supplements to their petitions. Tr. 42.
s 8112230281 811251 DESIGNATED ORIGINAli N PDR ADOCK 05000247
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G PDR Certified B7 W
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6.
the NRC Federal Register Notice of_ October 7,1981", dated November 24, 1981 (Response) the Staff had noted certain deficiencies with regard to
' standing" in each of the petitions filed by the above organizations and governmental entities.
Below the NRC Staff addresses these deficiencies in light of these recently filed amendments.
II. DISCUSSION A.
Amendment of Petition Filed by UCS and NYPIRG In its Response, the.NRC Staff treated UCS and NYPIRG as joint petitioners since they filed a joint petition for leave to intervene.
The Staff stated that the joint petition was deficient in that there was no statement of authorization from a member of either organization with the-requisite 10 C.F.R. 9 2.714 " interest that UCS-NYPIRG represent that interest.
Further, Staff noted there is some question whether named-members of UCS were in fact members. U Finally, the Staff found that there was no identification of a duly authorized representative to speak for the joint petitioners in this proceeding.
Response at 22-24.
On December 10, 1981, UCS filed a document entitled " Amendment to o
UCS' Petition for Leave to Intervene, and Response to NRC Staff, Consoli-dated Edison, and PASNY Challenges to UCS Standing to Intervene" (UCS Amendment). The Staff also received an undated document filed by NYPIRG entitled "New York Public Interest Research Group, Inc. Petition for Leave y
The Staff, referencing Section II.A.1 of its Response, noted that Commission precedent regarding organization standing in a representa-tive capacity clearly has been limited to representational standing based on " members" of the organization.
Response at 23.
~.
O.
to Amend Portions of Joint Petition to Intervene". (NYPIRG Amendment). The Staff notes that it appears that UCS and NYPIRG wish to seek joint inter-vention in spite of the fact that each organization has filed separate amendments. E NYPIRG in its amendment states that NYPIRG and UCS agreed to file separate amendments since " challenges are directed at us as separate entities." NYPIRG Mendment at 1.
Although NYPIRG does not appear to be requesting intervention as a separate entity, the Staff believes that the petit'on with NYPIRG's Amend-ment would establish standing of NYPIRG to intervene on behalf of its mem-bers. One of the affidavits attached to the NYPIRG anendment demonstrates that one of NYPIRG's members (Ellen D. Spilka), with the requisite " interest,"
~ has authorized NYPIRG to represent that interest in this proceeding. Another affidavit, signed by Lisa Schwartz as Chairperson of the Board of Directors of NYPIRG, along with an attached resolution demonstrates that NYPIRG has also identified at least one duly authorized representative (Joan Holt, Project Director) for purposes of NYPIRG's participation in this proceeding.
Accordingly, the Staff believes that NYPIRG has addressed the deficiencies noted by the Staff in its Response and, therefore, established that it has standing to intervene on behalf of its members in this proceeding.
The Staff believes that UCS has not established that it has standing to intervene in this proceeding. O In support of its argument that it has
-y Although the document filed by NYPIRG is not titled an amendment the Staff treats it as an amendment, y
In response to the argument set forth in the introduction of the UCS Amendment that "the unique investigatory nature of this proceeding precludes the strict application of traditional standing requirements" (FOOTNOTE CONTINUED ON NEXT PAGE)
standing to intervene in this proceeding UCS asserts standing first based on '"its fundamental interest in carrying out its longstanding goal of assuring the safe operation of idvidual reactors, and on_ its financial stake in the protection of its flew York sponsors from harm caused by a nuclear accident". UCS Amendment at 4.
The Conraission has held that.
judicial concepts of standing are to be used in allowing or disallowing intervention in !4RC proceedings.
Portland General Electric Co. (Pebble Springs lluclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).
The Supreme Court has stated with respect to organizations describ-ing themselves as dedicated to a general interest or concern:
Our decisions make clear that an organization's abstract con-cern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art. III.
Sierra Club v. Morton, supra; see Warth v. Seldin, supra.
Simon v. Eastern Kentucky Welfare Rights OrganizatQn, 426 U.S. 26, 40 n
(1976). The Appeal Board has rejected an argument of standing based.on 4f (F00TriOTE CONTIfiUED FR0li PREVIOUS PAGE)
(UCS Amendment at 2), the Staff simply notes that if the Commission had intended to make special provision for UCS' participation in this proceeding, it would have dor:e so.
The Commission did make special provision for the participation of Con Edison and PASNY. - Clearly, if the Commission had also intended to make special provision for UCS it would have so stated.
The Commission stated:
The staff will be a party to the proceeding, and the licensees will be admitted as parties upon request... [a]ll others wishing'to intervene shall file petitions for intervention...
Consolidated Edison Co'. (Indian Point, Unit 2), Power Authority _ of the State of flew York (Indian Point, Unit 3),-CLI-81-1,13 fiRC 1, as revised, I
CLI-81-23, 14 tiRC
e.
abstract concerns quoting the following language from Sierra Club v. Morton, 405 U.S. 727, 739-40 (1972):
... a mere " interest in a problem," no matter how longstanding the interest and.no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization " adversely affected" or "agrieved" within the meaning of the APA.
HL ston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), 'ALAB-535, 9 NRC 377, 391 (1979).
The Staff believes that the UCS " interest in carrying out its longstanding goal of assuring the safe operation of individual reactors" is just such an abstract concern and, accordingly, does not support the standing of UCS to intervene in this proceeding.
In support of its standing argument, UCS cites a Court of Appeals decision, Coles v. Havens, 633 F.2d 384 (4th Cir.1980), which indicates that Courts' belief that there are situations where organizations that have gone beyond " protestations of general interest found insufficient for standing in Sierra v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 312 F.2d 636 (1972)", that may support an argument of standing for an Organization-based on injury to the organization itself.
UCS Amendment at 3.
The Court of Appeals in that decision relies on the Supreme Court decision of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977).
The Staff does not believe that these decisions in any way support UCS standing to intervene in this proceeding.
UCS has not alleged a " concrete injury" in any way equivalent to the injury alleged by the Metropolitan Housing Development Corporation (MHDC).
See Arlington Heights, 429 U.S.
at 256. Simply stated UCS has not alleged in detail how it has a." personal
stake in the controversy" and how such injury is "likely to be redressed by a favorable decision".
Ijb.at-261and262.
Moreover, the financial interest asserted by UCS on behalf of its standing to intervene in this proceeding is not at all like the direct' financial interest of the Washington Apple Advertising Commission (Apple
~
Cannission) noted by the Supreme Court in Hunt v. Washington Apple
' Advert! sing Comnission, 452 U.S. 333, 345 (1977), another case cited by UCS.
UCS Amendment at 6, note 3.
The Court, there noted as an additional factor supporting the Apple Commission's demonstration of the necessary concrete adverseness:
Finally, we note that the interests of the Commission itself may be adversely affected by the outcome of this litigation.
The annual assessments paid to the Commission are tied to the volume of apples grown and packaged as " Washington Apples."
Hunt, 432 U.S. at 395.
The financial nexus referenced by the Court in Hunt between the Apple Commission's interests and its constituents was in the nature of an annual assessment and not as here one of simple contri-butions.
Furthermore, it should be noted that this financial interest (injury to the organization itself) was not the reason found by the Court to support the Apple Commission's standing in Hunt but rather, just another factor which supported the Court's determination that the Apple Connission had standing-to sue based on its representational capacity. Hunt, 432 U.S. 395.
UCS asserted financial interest, potential loss of contributions from sponsors in the New York area due to a potential nuclear accident, is_ not a cognizable direct interest at all but rather the type of speculative injury that the Supreme Court has stated makes it "...substantially more
--7'-
difficult to meet the minimua requirement of Art. III: to establish that,-
t in fact, the asserted injury was the consequence of the defendants' actions, or that prospective relief will remove the harm."
(citations omitted).
Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 45 (1976).
The Supreme Court in Simon makes clear that the injury asserted by an organization must not as here be speculative but rather one that can be fairly traceable to the challenged action.
Simon, 426 U.S. at 42, 46, Arlington Heights 429 U.S. at 261.
Here, there is both speculation that should UCS prevail in the instant proceeding it would necessarily continue to receive its sponsors' contributions.
Moreover, it is pure speculation that should they not prevail in this proceeding that continued operation of Indian Point Units 2 and 3 would first result in an accident and second result in an accident so severe as to cause the loss of UCS sponsorship in the New York area. Thus, the Staff believes that UCS has failed to allege an " actual" or " threatened" injury to itself as an organization "resulting from the... action" before this Commission and, accordingly, has not estab-lished that it has standing based on injury to itself, to intervene in this proceeding.
Id. at 41 and 42.
UCS also seeks to establish standing in a representational capacity based on injury to its sponsors.
UCS Amendment bi 7-10.
The Staff noted.
in its Response (at 23) that Commission precedent regarding an organiza-tion's representational standing indicates that such standing has been permitted when such standing is based on injury to the members of the~
organization. See, e.g., Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644, 646 and 647 (1979) (citing Sierra Club v. Morton, 405 U.S. 727 (1972). The Staff has not found
any Comiission case which directly addresses the question of whether
. representational standing can be based on the personal interests of a financial contributor to an organization (as contrasted with the personal interests of an organization member).5_/
The question of standing of an organization based on an injury to a contributor or sponsor was raised in Health Research Group v. Kennedy, 82 F.R.D. 21 (D.C. 1979). Relying en the Supreme Court's Hunt decision, supra, N the District Court held that two organizations, Health Research Group and Public Citizen, that based standing solely on the basis of their capacity to represent their " contributors" and " supporters", had not established standing.
Referring to Hunt, the District Court stated that Hunt " clearly reaffirms that a plaintiff cannot gain standing merely on a showing that its interests and expertise are germane to the interests of third parties who would have standing in their on right." Health Research Group at 26; see Hunt, 432 U.S. at 344. The District Court stated that Hunt established that more is needed to support representational standing 5]
See Virginia Electric and Power Co. (North Anna tiuclear Power Station, Units 1 and 2), ALAB-536, 9 flRC 402, 404 n. 2 (1979), where the Appeal Board having found that UCS had not established standing to intervene (citing Allied-General fluclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 tiRC, 420 (1976)) stated that "there is no necessity here to explore the question whether representational standing can be based on the personal interests of a are financial contributor to the organization."
In a subsequent proceeding, a licensing board admitted UCS as an intervenor but again, did not address the basis cf the representational standing.
Metropolitan Edison Company, et al., (Three Mile Island fluclear Station, Unit tio.1 - Restart), Mamorandum and Order Ruling on Petitions and Setting Special Prehearing Conference at 14 (unpublished, September 21,1979).
6_/
The District Court noted that in Hunt, the Supreme Court for the first time was confronted with an organization's claim to associational standing (representational standing) on behalf of the third parties who were, at least formally, not its members.
Health Research Group, 82 F.R.D.'at 25.
-1
.___N
. 4
- based on injury to a non-member; in essence a showing of "the indicia of membership":
The District Court stated:
Hun strongly suggest that some very substantial nexus between the organization and the parties it purports to represent will be required where those parties are not actually members.
In view of the ultimate Article III requirement that the plaintiff be himself among the injured, this suggestion is quite important.
Meubers, as the Court implicitly acknowledged in Hunt, normally exercise a substantial measure of power or control over an organization which, in typical circumstances, they themselves have created.
In Hunt, "the indicia of membership" were present because the growers and dealers alone elected the members of the Commission, served as members of the Commissica, and financed its activities. In a real sense then, despite the anomaly that the Commission was a state-created, non-membership organization, it was totally a creature of the parties it purported to represent.
Health Research Group, supra at 26. U It is this essential ingredient "the indicia of membership" which the Staff believes is lacking here.
UCS has not given any indication that UCS is " totally a creature of the parties" it purports to represent. UCS does not assert that its sponsors elect or in any way determine what scientists will make-up UCS.
Nor has UCS indicated that only sponsors may make up UCS.
UCS does note that it is directly supported by its sponsors.
UCS Amendment at 9.
However, as the District Court stated:
In the Court's view, there is material difference of both degree and substance between the control exercised by masses of contri-butors tending to give more or less money to an organization depending on its responsiveness to their interests, o'r through the expression of opinion in the matters of supporters, on the one hand, and the control exercised by members of an organization as they regularly elect their governing body, on the other.
y The exact language of the Supreme Court in Hunt, 432 U.S. at 344, for the requisite " indicia of membership" related to non-members is as follows:
"They alone elect the members of the Commission, they alone may serve on the Commission..."
Health Research Group, supra,'at 27.
In sum, the sponsors of UCS do not have the requisite " indicia of merabership," the measure of power or control of UCS to support the representation standing sought here by UCS.
In sum, the Staff believes that the joint petition of UCS-NYPIRG, as amended by the UCS Amendment does not establish that UCS has standing to intervene in this proceeding either on its own behalf or in a repre-sentative capacity.
However, as noted above, the joint petition of UCS-NYPIRG, as amended by the flYPIRG Amendment, establishes that NYPIRG has standing to intervene in this proceeding is a representative capacity.E 8]
Although a petitioner may lack standing to interver.e as of right under.
Judicial standing concepts, the Commission has indicated that such petitioner may nevertheless be admitted to the proceeding in the Licensing Board's discretion based on consideration of several factors.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976). The factors noted by the Commission include:
1.
The extent to which the petitioner's partici-pation may reasonably be expected to assist in developing a sound record.
2.
The nature and extent of the petitioner's property, financial, or other interest in the proceeding.
3.
The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
4.
The availability of other means whereby petitioner's interest will be protected.
5.
The extent to which the petitioner's interest will be represented by existing parties.
6.
The extent to which petitioner's participation will inappropriately broaden or delay the proceeding.
It is clear from this Comn.ission decision that the primary purpose of such discretionary intervention is the situation where as here a peti-tioner who failing to satisfy the judicial standing criteria still may have a valuable contribution to make to the decision making process.
Id. at 617. This is the first listed factor and in the Staff's opinion TT00TNOTE CONTINUED ON NEXT PAGE)
B.
Amendment to the Petition Filed by WESPAC In its Response the NRC Staff stated that WESPAC's petition fails to provide a concrete indication that at least one member of the organization whose interest might be affected by the outcome of this proceeding has authorized UESPAC to represent him or her.
Response at 16.
In addition, the Staff stated that the petition fails to demonstrate that its signer, Charles A. Scheiner, is authorized to represent WESPAC in this proceeding. H.
U (F0OTNOTE CONTINUED FROM PREVIOUS PAGE) the controlling factor here. The unique circumstance of this case is that this very proceeding was the result of issues raised by UCS regard-ing the Indian Point nuclear facilities.
Indian Paint: CLI-81-1, supra, at 2.
Further, the Commission has stated that UCS has alleged that there are specific safety defects in the Indian Point units which raise questions about whether or not the units comply with NRC regulations, M. at 3, that these issues raised by UCS are matters for consideration by this Board on raising a valid contention pursuant to 10 CFR 9 2.714.
M. at 6 and 7, note 4.
Finally, the Commission notad with regard to the issues raised by UCS that "[i]f the Board at any time during the proceeding believes that. any of these issues are serious er.ough to warrant immediate action, it should make an appropriate recommendation to the Commission."
In light of this background showing the important role played by UCS in the initiation of this proceeding and the likelihood tha' UCS can make a meaningful contribution due to its asserted expertise (it "is an independent,non-profit group of scientists, engineers and other professionals who have spent a deccde conducting research into nuclear power safety questions" ["The Power Controversy,"
UCS, at 1, attached to UCS Amendment.]) the Staff believes that the Board could exercise its discretion to allow UCS to intervene in this proceedinc.
The only factor weighing against allowing discretionary intervention is the fifth factor relating to the extent to which UCS' interest will be represented by existing parties. As noted above, NYPIRG by means of its amendment has now established standing as of right.
NYPIRG and UCS filed a joint petition and, therefore, it could be argued that all the -
matters UCS wishes to raise could be raised by NYPIRG.
It would further be argued that UCS' scientific resources could be made available to NYPIRG.
For these reasons, this factor weighs against exercise of the Board's discretion to admit UCS as a party.
i In light of the unique circumstances of this case discussed above, the Staff believes that balance tips in favor of the Board exercising its discretion to allow UCS to participate jointly with NYPIRG.
On' December 10, 1981 WESPAC filed a document entitled "WESPAC's Supplement to Petition for Leave to Intervene" (Amendment) with an affidavit of Charles A. Scheiner and a notice of appearance of Alan Latman, Esq., attached.
Based on the notice of appearance and the affidavit, specifically the statement in the affidavit that as Co-chairperson, the affiant has been authorized by the Administrative Committee of WESPAC to represent WESPAC in this proceeding together with other representatives, the Staff believes Lhat WESPAC has demonstrated that its participation in this proceeding has been authorized and that it will be represented by a duly authorized repre-sentative. However, the Staff believes that WESPAC's Petition, as amended, is still deficient in that there is no concrete indication that at least one member of the organization whose interest might be affected by the outcome of the proceeding has authorized WESPAC to represent him or her.E There is only a statement by WESPAC in docunent entitled "WESPAC's Pre-Hearing U
See Response at 5 and 6, particularly the reference to HoJston Lighting and Power Company (Allens Creek fluclear Generating.
Station, Unit 1), ALAB-535, 9 flRC 377, 396, where the Appeal Board states:
Where an Organization's standing hinges upon its being the representative of a member who has the requisite affected personal interest, it is obviously important that there be some concrete indication that, in fact, the member wishes to have that interest represented in the proceeding.
The Appeal Board further states, indicating the necessity for a statement from a member:
What the member would be called upon to do is to confirm....
that he had authorized the organization to represent his interests in the proceeding and thus had clothed it with his personal standing (which then could serve as the footing for the organization's standing to seek intervention if so inclined).. (emphasis.added)
11emorandum and Response to Staff and Utility Answers to Petitions for Leave to Intervene", dated December 1, 1981 (flemorandum) that WESPAC would have no trouble obtaining affidavits" of members.
Memorandum at 5.
However, none were produced.
Absent some concrete demonstration of a member's authorization of WESPAC to represent him or her in this proceeding the Staff believes that WESPAC's petition, as amended, is deficient. E C.
Amendment to the Petition Filed by NYC Coucil In its Response the NRC Staff stated that the Staff supports the request that the NYC CouncilE be provided an opportunity to participate
' W In footnote 8, supra, the Staff discusses the Board's authority to exercise its discretion to allow a petitioner to intervene even though he does not meet the judicial standing requirements. Unlike UCS, there are no unique circumstances in the background of this case nor has UESPAC demonstrated that it could make a valuable contribution to the development of the record in this proceeding. Giving due consideration to all the factors in the Pebble Springs case, the Staff believes that the Board should not exercise its discretion and allow WESPAC to become an intervenor in this proceeding.
E The Staff had noted that it was not clear whether the Council members were petitioning on behalf of themselves or the NYC Council, but treated the petition to have been filed on behalf of the NYC Council since 10 C.F.R. 52.715(c) participation was not intended to apply to repre-sentatives petioning on behalf of themselves.
Response at 8 and 9 (see particularly note 9, at 9).
As the Staff noted there, it is clear that the Commission intended that participation pursuant to 10 C.F.R. 92.715(c) apply to units of government through their authorized repre-sentative not representatives themselves.
See 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 issues.
Pursuant to Section 161 of the Atomic Energy Act, which grants broad discretionary authority to the Comission to obtain 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).
in this proceeding pursuant to 10_C.F.R. Q2.715(c) provided NYC Council identifies an individual to represent NYC Council and there is some
.assuran e provided that indicates that such individual has been c
authorized to represent NYC Council in this proceeding.
Response at 31.
On December 10, 1981, NYC Council filed a document entitled
" Petition for Leave to Amend Petition for Intervention of New York City Council members and to Add Eight. Additional Signatories". This document and the attached NYC Council resolutions (calling for public hearings to be held) completely fail to address the dificiencies noted by the Staff.
There is no indication in the resolutions that the NYC Council voted to participate in any public hearings that may be held nor is there any identification of a spokesperson for the Council.
Further, while the amendment appears to have been prepared by Ruth Messinger, there is no showing that she has been authorized to represent NYC Council in the instant proceeding.
Accordingly, the Staff believes that NYC Council's petition, as amended, is deficient.
D.
Amendment to the Petition Filed by GNYCE In its Response the NRC Staff stated that GNYCE has failed to demonstrate that it is authorized to represent at least one member whose interest might be adversly affected by the outcome of this proceeding
- t and has failed to indicate its authorized representative.
Response at 21 and 22.
On December 10, 1981 the Greater New York Council or. Energy (GNYCE) filed a document entitled " Amendment to Petition for Leave to Intervene
~
s b-
.-,I
.-,..,--..-m.
of the Greater New York Council Council [ Sic] on Energy" with two affi-davits attached.
This document and the attached affidavits indicate the requisite authorization by an interested member of GNYCE (Andrew Rosenbloom) for GNYCE to represent that interest as well as the person (Dean R. Corren, Director of GNYCE) authorized to represent GNYCE in this proceeding.
Accordingly, the NRC Staff believes that GNYCE has established that it has standing to intervene in the instant proceeding.
E.
Amendment to the Petition Filed by the County In its Response the NRC Staff stated that it supports the County's
- request to participate in this proceeding pursuant to 10 C.F.R. 6 2.715(c) provided that Mr._ Del Bello, Executive of the County of Westchester, pro-vides the Board with some assurance that he is requesting opportunity to participate on behalf of the County of Westchester and that such repre-sentation is authorized. Response at 32.
On December 10, 1981, a document entitled " Amended Petition for Leave to Intervene" was filed by Marianne L. Sussman, Legislative Assistant, Office of the County' Executive, on behalf of Alfred B. Del Bello.
In this document authority is cited which indicates that Mr. Del Bello, as the Westchester County Executive and official head of the County government, has the authority to represent the County.
It is also clear from this document that Mr. Del Bello is requesting participation pursuant to 10 C.F.R. 5 2.715(c) on behalf of the County of Westchester.
The deficiencies previously noted by the Staff having been remedied, the
Staff believes that the Countyi request to participate in this proceeding pursuant to 10 C.F.R. 6 2.715(c) should be granted.
F.
Amendment to the Petition Filed by Parents In its Response the NRC Staff stated that Parents had failed to demonstrate that a member with the requisite " interest" had authorized Parents to represent such-interest in this proceeding. Response at 27.
Further, the Staff noted that Parents had failed 'to identify a duly authorized representative, Id_. E On December 10, 1981, Parents filed a document entitled " Amended
- Petition for Leave to Intervene" (Amendment) with three affidavits attached. Based on these documents, the Staff believes that Parents has established standing to intervene in this proceeding on behalf of its members and their children. Two of the affidavits attached to the Amendment demonstrate that members of Parents (Phyllis Rodriguez and Ervine Kimerling) with the requisite " interest" have authorized Parents to represent their interests.. The third affidavit signed by Pat Posner, as a member of Parents' Special Committee, provides the necessary demonstration that Parents has identified members who have been duly authorized to represent it in this proceeding.
E The NRC Staff, citing Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421n.1 (1978), noted that' "to the extent Parents is asserting the interests of its members and their minor children" it is asserting "an appropriate representative interest." Response at 25 and 26.
III C0flCLUSION i
For the above reasons, the NRC Staff believes that NYPIRG, GliYCE, and Parents have established that they have standing to intervene in-this proceeding pursuant to 10 C.F.R. 5 2.714. The Staff believes that the intervention petitions of WESPAC and UCS, as amended, are still deficient and fail to establish standing to intervene in this proceeding.N Furthe., the Staff believes that the County should be allowed to participate in this proceeding pursuant to 10 C.F.R. 5 2.715(c). The Staff believes that the request for participation of NYC Council pur-
. suant to 10 C.F.R. $ 2.715(c) is still deficient.
Respectfully submitted,-
i Henr
. McGurren Counsel for NRC Staff Dated at Bethesda,flaryland this 21st day of December,1981 13/ Since UCS has failed to establish standing as of right based either on injury to itself or in a representative capacity, the joint petition of UCS-NYPIRG must be denied.
The Board could, however, grant UCS-flYPIRG -
discretionary intervention.
See note 8, supra.
UNITED STATES OF Ai1 ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
CONSOLIDATED EDIS0N COMPANY
)
Docket Nos. 50-247-SP 1
0F NEW YORK (Indian Point, Unit 2)
)
50-286-SP
)
POWER AUTHORITY OF THE STATE OF
)
NEW YORK (Indian Point, Unit 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of RESPONSE OF THE NRC STAFF TO THE AMENDMENTS TO PETITIONS OF UCS-NYPIRG, GNYCE, PARENTS AND WESPAC FOR LEAVE TO INTERVENE AND AMENDMENTS TO REQUESTS OF THE COUNTY AND NYC COUNCIL FOR PARTICIPATION AS 11NTERESTED STATES in the above-captioned proceeding have been served on the fo.11owing by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 21st day of December, 1981.
- Louis J. Carter, Esq., Chairman Paul F. Colarulli, Esq.
Administrative Judge Joseph J. Levin, Jr., Esq.
Atomic Safety and Licensing Board Pamela S. Horowitz, Esq.
U.S. Nuclear Regulatory Commission Charles Morgan, Jr., Esq.
Washington, D. C.
20555 Morgan Associated, Chartered 1899 L Street, N.W.
- Dr. Oscar H. Paris Washington, D. C.
20036 Administrative Judge Atomic Safety and Licensing Board Charles M. Pratt, Esq.
U.S. Nuclear Regulatory Comission Tilomas R. Frey, Esq.
Washington, D. C.
20555 Power Authority of the State of New York
- Mr. Frederick J. Shon 10 Columbus Circle Administrative Judge New York, N.Y.
10019 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Ellyn R. Weis, Esq.
Washington, D. C.
20555 William S. Jordan, III, Esq.
Harmon & Weiss Brent L. Brandenburg, Esq.
1725 I Street, N.W., Suite 506 Assistant General Counsel Washington, D. C.
20006 Consolidated Edison Co.
of New York, Inc.
Joan Holt, Project Director 4 Irving Place Indian Point Project New York, N.Y.
10003 New York Public Interest Research Group 5 Beekman Street New York, N.Y.
10038
O.
John Gilroy, Westchester Coordinator Honorable Ruth Messinger Indian Point Project Member of the Council of the New York Public Interest City of New York Research Group District #4 240 Central Avenue City Hall White P1ains, New York 10606 New York, New York 10007 Jeffrey M. Blum, Esq.
Honorable Miriam Friedlander New York University Law School Member of the Council of the 423 Vanderbuilt Hall City of New. York 40 Washington Square South District #2 New York, N.Y.
10012 City Hall New York, New York 10007 Charles J. Maikish, Esq.
Litigation Division Honorable Carol Greitzer The Port Authority of Member of the Council of the New York and New Jersey City of New York One World Trade Center District #3 New York, N.Y.
10048 City Hall New York, New York 10007
,Ezra I. Bialik, Esq.
Steve Leipsiz, Esq.
Honorable Stanley E. Michels Environmental Protection Bureau Member of the Council of the New York State Attorney City of New York General's Office District #6 Two World Trade Center City Hall New York, N.Y.
10047 New York, New York 10007 Alfred B. Del Bello Honorable Susan Alter Westchester County Executive Member of the Council of the Westchester County City of New York 148 Martine Avenue District #32 New York, N.Y.
10601 City Hall New York, New York 10007 Andrew S. Roffe, Esq.
New York State Assembly Honorable Edward C. Wallace Albany, N.Y.
12248 Member of the Council df the City of New York Renee Schwartz, Esq.
Councilmember-at-Large, Manhattan Botein, Hays, Sklar & Herzberg City Hall Attorneys for Metropolitan New York, New York 10007 Transportation Authority 200 Park Avenue Honorable Mary Pinkett New-York,'N.Y.
10166 Member of the Council of the City of New York Stanley B. Klimberg District #28 General Counsel City Hall New York State Energy Office New York, New York 10007 2 Rockefeller State Plaza Albany, New York 12223 Honorable Mary T. Codd Member of the Council of the City of New York Councilmember-at-Large, Staten Island City Hall New York, New York 10007
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Honorable Gilberto Gerana-Valentin Pat Posner, Spokesperson Member of the Council of the Parents Concerned About City of New York Indian Point District #11 P. O. Box 125 City Hall Croton-on-Hudson, NY 10520 New York, New York 10007 Charles A. Scheiner, Co-Chairperson Honorable Arthur J. Katzman Westchester People's Action Member of the Council of the Coalition Inc.
City of New York P. O. Box 488 District #22 White Plains, N.Y.
10602 City Hall New York, New York '10007 Alan Latman, Esq.
44 Sunset Drive Jonathan L. Levine, Esq.
Croton-on-Hudson, N.Y.
10520 Rockland Citizens for Safe Energy Lorna Salzman P.O. Box 74 Mid-Atlantic Representative New City, NY 10956 Friends of the Earth, Inc.
208 West 13th Street
. Marc L. Parris, Esq.
New York, N.Y.
10011
- County Attorney County of Rockland Zipporah S. Fleisher 11 New Hempstead Road West Branch Conservation New City, NY 10956 Association 443 Buena Vista Road Geoffrey Cobb Ryan New City, N.Y.
10956 Conservation Committee Chairman, Director
- Docketing and Service Section New York City Audubon Society Office of the Secretary 71 West 23rd Street, Suite 1828 U.S. Nuclear Regulatory Comission New York, NY 10010 Washington, D. C.
20555 Greater New York Council Mayor George V. Begany on Energy Village of Buchanan c/o Dean R. Corren, Director 236 Tate Avenue New York University Buchanan, N.Y.
10511 26 Stuyvesant Street New York, NY 10003 Judith Kessler, Coordinator Rockland Citizens for Safe Energy
- Atomic Safety and Licensing 300 New Hempstead Road Board Panel New City, N.Y.
10956 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 David H. Pikus, Esq.
Richard F. Czaja, Esq.
- Atomic Safety and Licensing 330 Madison Avenue Appeal Board Panel
?lcu Yur;;, NY 10017 U.S. Nuclear Regulatory Commission Washington, D. C.
20555
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1 Kenigj. McGurren Counsel for NRC Staff
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