ML20039C023
| ML20039C023 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/22/1981 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8112280327 | |
| Download: ML20039C023 (12) | |
Text
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8.I UNITED STATES OF AMERICA DEC2 4 gg7 3 C NUCLEAR REGULATORY C0ftfi!SSION e ge, BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4,
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CONSOLIDATED EDIS0N COMPANY
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Docket Nos. 50-247-SP 0F NEW YORK (Indian Point, Unit 2 50-286-SP POWER AUTHORITY OF THE STATE OF
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NEW YORK (Indian Point, Unit 3)
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December 22, 1981 NRC STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE OF HONORABLE RICHARD L. BRODSKY I.
INTRODUCTION On December 2,1981, the Honorable Richard L. Brodsky (Petitioner) filed a petition for leave to intervene in the above-captioned proceeding on his own behalf and on behalf of the 9th legislative district of Westchester County.
The Staff's response to that petiticn is set forth below. The Staff concludes that 1) the petitioner has established his standing to intervene on his own behalf in this proceeding; 2) he has failed to establish his standing to intervene as a representative of the 9th legislative district; and 3) while the petition is nontimely, a bal-ancing of the five factors weighs in favor of entertaining the petition.
II.
BACKGROUND By Order dated October 1,1981, and published in the Federal Register on October 7,1981, the Licensing Board established to preside over this proceeding gave notice to all persons wishing to petition for leave to intervene in this proceeding that their petitions were to be filed by Novem-ber 6,1981. 46 Fed. Reg. 49688 (1981). On December 2,1981, approximately three weeks after this deadline had passed, the Honorable Richard L. Brodsky filed a petition for leave to intervene pursuant to 10 C.F.R. 96 2.714 and DESIGNATD CRICINAU '-
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. t 2.715 on his own behalf and on behalf of the 9th legislative district of the County of Westchester.
The Staff's response to this nontimely peti-tion is set forth below.
III.
DISCUSSION A.
Requirement for Intervention Pursuant to 10 C.F.R. 5 2.714(a)(2) of the Commission's regulations, petitions for leave to intervene must set forth with particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to intervene.
In addition, the petition must set forth with particularity the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to inter-vene. The Commission's regulations further state that nontimely petitions will not be entertained absent a determination by this Board that the petition should be granted based on a balancing of five factors. These factors are:
(1)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the petitioner's interest will be protected.
(iii)
The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv)
The extent to which the petitioner's interest will be represented by existing parties.
(v)
The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
In determining whether a petition for leave to intervene should be granted, judicial. concepts of standing should be employed.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2),
r O i CLI-76-27,4NRC610,613-14(1976). These concepts require a showing that the action being challenged could cause injury in fact N to the 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. Seldin, 422 U.S. 490 (1975); Sierra Club v. Morton, 405 U.S. 727 (1972); Association of Data
' Processing Service Organizations v. Camp, 397 U.S. 150, 153 (1970). The 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.P.. s 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 fim 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 stanaing 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 188,190,193, aff'd, CLI-73-12, 6 AEC 241 (1973), reconsid. den. ALAB-110, 6 AEC 247.
If "ADstract 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 ham must have some particularTeect on a petitioner, Ten Applications, CLI-77-24, supra, and a petitioner must have some 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).
B.
Petitioner Has Established His Standing to Intervene on his own Behalf in this Proceeding Mr. Brodsky claims to be a resident of Westchester County. U Westchester County appears to be within F0 miles of the plant in its entirety. He claims that his personal health and safety has been and will continue to be affected by the continued operation of the Indian Point units.
Petition For Leave to Intervene at 1 (December 2,1981) (herein-afterPetition).
Petitioner also states that he is a member of the West-chester County Legislature located in White Plains, New York.
Petitioner has identified those issues, some of which are within the subject matter of this proceeding, on which he wishes to intervene.
For example, he 1.;
concerned with the adequacy of emergency planning at Indian Point, the consequences of accidents at Indian Point, and whether there are future and feasible improvements in emergency planning which will protect the public health and safety' near Indian Point. The Staff notes, however, that one of the issues asserted by Petitioner, issue 7(b), appears to be an imper-missible challenge to the 10-mile Emergency Planning Zone established by the Commission in 10 C.F.R. Part 50, Appendix E.
The remaining issues are sufficiently related to the subject matter of this proceeding as defined by the Commission to satisfy the aspects requirements of 10 C.F.R. 9 2.714(a)(2). Therefore, Petitioner has established standing to inter-vene on his own behalf.
C.
Petition ~er Lacks Standing to Intervene on Behalf of the 9th Legislative District Petitioner claims that by virtue of his public position as a County legislator, he is entitled to represent the interests of the people of 2f However, he does not provide the address of his residence.
. 4 the 9th legislative district.
Petition at 1.
He claims that two resi-dents of the 9th legislative district have authorized him to represent them in this proceeding.
Id. at 2.
This claim of standing is without merit.
Petitioner's claims are analogous to those raised by a Federal legislator in a previous Commission proceeding. See General Electric Co.
-(GE Test Reactor, Vallecitos Nuclear Center), LBP-79-28,10 NRC 578 (1979).
In that proceeding the Board noted that a petitioner has a right to inter-
'vene only when it appears from the petition that he will be, or might be, injured in fact by one or more of the possible outcomes of the proceeding.
Id. at 581-82.
Here, as in Vallecitos, Petitioner has not shown an injury in fact to himself as a legislator.
One party may not represent another without express legal authority to do so.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-77-11, 5 NRC 481, 483 (1977).
If Petitioner wishes to act as the representative in this proceeding of the 9th legislative district he must have that district's authorizations to do so.
This would require at least a majority vote of the 60,000 people Petitioner claims to repre-sent.
No such mandate has been indicated in this petition. Since Peti-tioner has not shown injury in fact to himself as a legislator, and has not shown that he has been designated as the representative of a group which has specifically authorized his representation in this proceeding, he lacks standing to intervene on behalf of the 9th legislative district.
L
. 1 D.
Petitioner is not Entitled to Participate in this Pr meding as an Interested State Pursuant to 10 C.F.R. 9 2.715(c) of the Commission's Regulations Petitioner claims that since he is a member of a county legislature, he is a representative of an affc-ted county or affected municipalities within the meaning of 10 C.F.R. 5 2.715(c).
Petition at 4.
Such a claim ignores the clear intent of that regulation.
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 Commission to obtain information, make investigations or hold hearings as it deems necessary, this type of cooperation could be ex-tended to other units of government which also have an interest in the licensing proceeding.
(emphasisadded).
It is clear that the Commission in providing for participation pursuant to 10 C.F.R. 5 2.715(c) had in mind the participation by governmental units.
It did not intend by the language of 10 C.F.R. Q 2.715(c) to give representatives of such governmental units the right to participate pursuant to 10 C.F.R. 5 2.715 on their own behalf.
While the County legislature might be a governmental entity, Mr. Brodsky is not.
At least one Licensing Board confronted with a similar situation nas held that Section 2.715(c) does not apply to legis-lators.
See Vallecitos, supra, at 582. Since there is no indication that Mr. Brodsky is acting as the authorized representative of a govern-mental entity, he is not entitled to participate in this proceeding pursuant to the " interested state" provisions of 10 C.F.R. 9 2.715(c).
. t E.
Although the Petition-is Nontimely, the Balancing of the Five Factors Weighs in Favor of Entertaining the Petition As required by 10 C.F.R. 5 2.714(a), Petitioner addressed the five factors which must be balanced in determining whether a nontimely peti-tion for leave to intervene should be entertained.
In thic case, Petitioner asserted " pressing public business in the Legislature" as the reason for filing his petition approximately three weeks late. While the Staff believes that there is not a particularly strong excuse for the nontimely filing of the petition (the first factor), licensing boards have very broad discretion in their approach to the balancing process required under 10 C.F.R. 9 2.714(a) and have been upheld for allowing late intervention where an excuse has been "of no more than marginal sufficiency." Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), ALAB-342, 4 NRC 98, 107 and 108. What is important here with the instant petition is that the other four factors weigh in favor of the Petitioner.
Petitioner claims that there is no other forum where his interests might be protected either as a resident or legislator. To the extent that he could not raise his concerns by requesting action under 10 C.F.R. 9 2.206, this factor should weigh in favor of the petitioner.
With regard to the extent to which Petitioner will be able to contribute to the development of a sound record, he claims that the need for the full participation of the legislature will assist in the full development of a sound record.
He does not indicate exactly in what way he intends as an individual to contribute to the development of the record in this proceeding. He does not indicate, for example, that he will be in a position to present any expert testimony with regard to the contentions
. s' he has submitted. Therefore, there is not sufficient information to deter-mine whether this factor can be said to weigh for or against entertaining the petition.
Petitioner claims that no existing party can represent his interests as 6 resident.
There are a number of petitioners involved in this proceed-ing who are residents of the Indian Point area.
The issues set forth in this petition and the contentions submitted by Mr. Brodsky are identical to those raised by another petitioner to the proceeding.
Therefore, his interests, as exemplified by the contentions he has submitted, are in fact already being asserted by another petitioner to the proceeding.
Therefore, this factor should weigh against entertaining the petition.
The final factor, which the Staff believes swings the balance in favor of entertaining the petition, concerns the extent to which Peti-tioner's participation will broaden the issues and delay the proceeding.
Since he has not raised any issues which have not already been raised in the proceeding, his participation will not broaden the issues to be considered in the proceeding. Since his petition though late (by only approximately three weeks) has been filed in the early stages of the proceeding, there is little chance that his participation will delay the proceeding, provided that this tardiness in the filing of necessary documents does not continue. This factor weighs in favor of entertain-ing the petition.
In sum, while the excuse asserted by the Petitioner for the O
untimely filing is marginal, a balancing of the other factors set out in 10 C.F.R. 9 2.714(a) favors a determination by the Board that the non-timely filing be entertained.
For the reasons discussed in IIIB, above,
l
. t the Petitioner has established his standing to. intervene on his own behalf in this proceeding.
Since the contentions submitted by the Petitioner.are identical to those raised by another petitioner, to the extent _ any of the contentions are found to be admissible, Mr. Brodsky should be consolidated with the petitioner whose contentions he has adopted.
IV. CONCLUSION For the reasons stated above, the Staff concludes that the peti-tion of Honorable Richard L. Brodsky for leave to intervene should be entertained and that Mr. Brodsky should be found to have standing in his individual capacity.
Respectfully submitted, a
tu enry cGurren Counse for NRC Staff Dated at Bethesda, Maryland this 22nd day of December,1981.
UNITED STATES OF At: ERICA
_ NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CONSOLIDATED EDISON COMPANY Docket Nos. 50-247-SP 0F NEW YORK (Indian Point, Unit 2) 1 50-286-SP POWER AUTHORITY OF THE STATE OF NEW YORK (Indian Point, Unit 3)
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE OF HONORABLE RICHARD L. BR0DSKY in the above-ecptioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 22nd day of December, 1981.
- Louis J. Carter, Esq., Chairman Administrative Judge Paul F. Colarulli, Esq.
Atomic Safety and Licensing Board Joseph J. Levin, Jr., Esq.
U.S. Nuclear Regulatory Commission Pamela S. Horowitz, Esq.
Washington, D. C.
20555 Charles Morgan, Jr., Esq.
Morgan Associated, Chartered
- Dr. Oscar H. Paris 1899 L Street, N.W.
Administrative Judge Washington, D. C.
20036 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Cormnssion Charles fl. Pratt, Esq.
Washington, D. C.
20555 Thomas R. Frey, Esq.
Power Authority of the
- Mr. Frederick J. Shon State of New York 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, Eso.
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.
10033 John Gilroy, Westc' ester Coordinator Honorable Ruth Messinger h
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 Plains, 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 1
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 i
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Honorable Gilberto Gerana-Valentin Pat Posner, Spokesperson Member of the Cosncil of the Parents Concerned About Indian Point City of New York 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 Eb.".ber 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 Friedds 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 an.d Service Section New York City Audubon Society Office of the Secretary 71 West 23rd Street, Suite 1828 U.S. Nuclear Regulatory Commission i
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.
330 Madison Avenue
- Atomic Safety and Licensing New York, NY 10017 Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Honorable Richard L. Brodsky Member of the County Legislature Westchester County
'x County Office Building 0
i' f White Plains, NY 10601 Henry,J. McGurren Counsel for NRC Staff
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