ML20039C056
| ML20039C056 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/23/1981 |
| From: | Lessy R, Repka D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8112280363 | |
| Download: ML20039C056 (12) | |
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12/23/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0!! MISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PUBLIC SERVICE C0!!PANY OF
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Docket Nos. 50-443 OL NEti HA!!PSHIRE, et al.
50-444 OL (Seabrook Station, Units 1 and 2)
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NRC STAFF RESPONSE TO PETITION TO INTERVENE 2
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AND REQUEST FOR HEARING BY DR. ROBERT PROVAS0LI, ET ALJ p
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INTRODUCTION D
Yb s On October 19, 1981, the Nuclear Regulatory Commission published k the Federal Register a notice of opportunity for a hearing on the appli-cation by Public Service Co. of New Hampshire, et al., for operating licenses for the Seabrook Station, Units 1 and 2 (46 Fed. R_eg. 51330).
The notice stated that requests for hearing and petitions to intervene could be filed by November 18, 1981. On November 20, 1981, the NRC received a petition to intervene from "Dr. Robert Provasoli" and 10 other individuals. All 11 individuals describe themselves in the petition as
" health care providers," who are " deeply concerned about the potential environmental threat posed by the Seabrook Nuclear Power Plant to women and men of childbearing age, fetuses, infants and children, and middle-aged and elderly adults." The instant petition will be evaluated pursuant to the intervention requirements of 10 C.F.R. 5 2.714, as well as the pb7 5
provisions of 10 C.F.R. 5 2. 715(c) affording members of the public an
/I II opportunity to make limited appearance statements.
DESIGNAT ORIGINAL 8112280363 811223e
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. II.
THE REQUIREMENTS FOR INTERVENTION The basic requirements for intervention as a full party in an NRC proceeding are described in 10 C.F.R. 5 2.714, and have been fully delineated in prior Staff pleadings in this proceeding.
To summarize, first, the petitioner must have standing to intervene. This is referred to in 6 2.714(a) as an " interest" in the proceeding. Second, the petitioner must identify the specific aspects of the subject matter of the preceeding as to which it wishes to intervene ($ 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 10 C.F.R. -9 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, how that interest may be affected by the results of the procaading, 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 risht tc intervene.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976). Accordingly, to satisfy the
" interest" or " standing" test it must be found that:
(1) the petitioner
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. will probably suffer an " injury in fact" as a result of tt.e proposed licensing action;E and (2) the alleged injury is within the " zone of interests" to be protected by the pertinent statutes.U 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).
In NRC practice, an intervenor cannot seek to be a private attorney general seeking to represent a general "public interest."
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-77-11, 5 NRC 481, 483-84 (1977). This rule of law is based upon the basic legal principle that one party may not represent another without express authority to do so.
Id.
It therefore follows, and has been so held, that a potential y
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 (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 Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970).
The pertinent statutes to NRC proceedings are the Atomic Energy Act of 1954, as amended (42 U.S.C. 6 2011 et seq.),
e_t_ seq.)gy Reorganization Act of 1974, as amended (42 U.S.C. 5 5801 the Ener I
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, and the National Environmental Policy Act of 1969, as amended (42 U.S.C. 5 4332 e_t_ 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 radio-l logical releases from the nuclear facility (either in normal operation
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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).
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intervenor may only assert his or her own rights and intercsts to achieve standing -- not the rights and interests of others. Detroit Edison Co.-
(Enrico Femi Atomic Power Plant, Unit 2), ALAB-47b, 7 NRC 473, 474-75 at n.1 (1978).
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
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1 and Power Co. (North Anna Power Station,' Units 1 and 2), ALAB-522, 9 NRC
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54, 56 (1976).
However, being a taxpayer does not give one standing to intervene as of right.
Tennessee Valley Authority (Watts.Bar Nuclear 7
Plant, Units 1 and 2), ALAB-413, 5 NRC 1418,1421 (1977).'
B.
Specific Aspect of the Proceeding In addition to demonstrating interest or standing, 5'2.714(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 specifically identify the areas which the petitioner intends to pursue when submitting formal contentions.
Consumers Power Co. (Midland Flant, Units 1 and 2), LBP-78-27, 8 NRC 275, 278 (1978).
The subject matter so 4w 4w-
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identified _must be within the scope of a licensing proceeding or it cannot be. raised.
III. THE PETITION
-By petition in the-form of a letter dated November 17, 1981, Dr. Robert Fravasoli and 10 other individuals have submitted a peticion in this proceeding. As we have indicated, the petition describes the 11 individuals as " health care providers" concerned that operation of the Seabrook plant would have "a negative impact on the physical and mental
/ well beings of [tbeir] clients." Specifically the petition refers generally to an asserted increase.in anxiety among petitioners' general Iclientele caused by proximity to the plant site, presumably by their residence in or near Newburyport, Massachusetts.
Beyond this, the petition generally refers to " strictly medical pathologies" that
~ petitioners claim could result "in the event of a major accident."
In the view of the NRC Staff, the petition neither satisfies the
" interest" or " standing" requirements of 10 C.F.R. 6 2.714(a), nor does it sufficiently designate a specific aspect of the proceeding upon which petitioners wish to litigate as required by 10 C.F.R. 5 2.714(a)(2).
y See e.g. the following cases where matters without the jurisdiction of the Commission or licensing board were ruled inappropriate for consideration:
Babcock 7 Wilcox (Application for Consideration of Facility Export License), CLM-18, 5 HRC 1332,1348 (1977); Allied-General Nuclear Services (Barnwell Fuel Receiving & Storage Area),
ALAB-328, 3 NRC 420, 422-423 (1976); Long Island Lighting Co.
(Jamesport Nuclear Power Station), ALAB-292, 2 NRC 631 (1975).
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. A.
Interest or Standing In order to establish standing individuals must show (1) an
" injury in fact" will probably result from the proposed licensing action, and (2) the injury is within the " zone of interests"_ created 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). The health care providers have failed to demonstrate a personal
" injury in fact."
The focus of the " injury in fact" test is to require that petitioners demonstrate more than a " generalized grievance" shared by a large class of citizens. See, Transnuclear Inc., supra.
Petitioners must assert a personal specific injury to themselves which gives rise to their interest.
The health care providers have not particularized any such specific injury.
.They assert only concerns about the mental and physical effects of the proposed Seabrook facility on others, i.e., their patients. These concerns, therefore, reflect alleged injuries only to the patients and not to the petitioners. Moreover, it is well established that individuals may not assert the interests of others to achieve standing. Detroit Edison Co.,
supra; see also, Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 (1977).
Therefore, absent a showing of a particular, personal injury, the standing of the health care providers has not been established. Under 10 C.F.R.-l 2.714(a)(3) these-petitioners have an opportunity to supplement their petition to attempt to provide the necessary showing at any time
. until 15 days prior to the special prehearing conference to rule on inter-vention matters. Until such showing is made, the petition to intervene should be denied.
B.
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 Board and parties notice as to the specific subject matters petitioners wish to litigate.
See, Consumers Power Co., supra.
In their petition to intervene the health care providers have also failed to meet this requirement. The-
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petitioners' generalized concerns about the mental and physical health effects to their clientele of the Seabrook Station are too vague to meet the requirements of the controlling regulation,10 C.F.R. 5 2.714(a)(2).
For this reason also, the petition should be denied subject to petitioners' right to amend the pleading to cure the defects.
C.
Limited Appearance Under 10 C.F.R. 6 2.715(a)
While petitioners are considering the above comments, the Staff believes that petitioners should also consider availing themselves of-the provisions of 10 C.F.R. 9 2.715(a), which affords them an opportunity to state their views on the pending Seabrook application, orally or in writing, without regard to the above delineated full intervention requirements. As limited appearees, the statement of petitioners could be considered by the presiding licensing board. Moreover, as limited appearees, petitioners would not be required to file formal pleadings,
. respond to discovery, and generally participate in the litigation as full-party intervenors must.
-IV.
C0fiCLUSION For the reasons set out above, the Staff believes that petitioners Dr. Robert Provasoli, et al. have failed both to demonstrate the requisite standing to intervene and to designate specific aspects of the proceeding-as to which they wish to intervene.
Therefore, their petition should now be denied, subject to timely amendment pursuant to 9 2.714(a)(3) or substi-tution of a limited appearance request for their petition pursuant to 10 C.F.R. 6 2.715(a).
Respectfully submitted, Mr
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Roy P. Lessy Deputy Assistant Chief Hearing Counsel-b.
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David A. Repka Counsel for fiRC Staff Dated at Bethesda, Maryland this 23rd day of December, 1981.
d U'41TED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE AT0flIC 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, Units 1 and 2)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned atterney herewith enters an appearance in the captioned matter.
In accordance with 9 2.713, 10 C.F.R. Part 2, the following information is provided:
Name
- Robert G. Perlis Address
- Office of the Executive Legal l
Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Telephone Nurtber
- Area Code 301-492-7657 Admissions
- District of Columbia Court of Appeals Name of Party
- NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C.
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Yobert G. Perils Counsel for NRC Staff Dated at Bethesda, Maryland this 23rd day of Decemoer,1981.
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UNITED STATES OF A!! ERICA NUCLEAR REGULATORY COMl11SS10N BEFORE THE AT0tilC SAFETY AND LICENSING BOARD In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443 OL NEW HAltPSHIRE, et al.
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50-444 OL (Seabrook Station, Units 1 and 2) '
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters -
an appearance in the captioned matter.
In accordance with 9 2.713, 10 C.F.R. Part 2, the following information is provided:
David A. Repka Name Address Office of.the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Telephone Number 301-492-7297-Admissions District of Columbia Court of-Appeals Name of Party NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C.
20555 h 2 1 l\\- M n kr (
David A. Repka
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Counsel for NRC Staff Dated at Bethesda, Maryland this 23rd day of December,1981.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443 OL NEW HAMPSHIRE, et al.
50-444 OL (Seabrook Station, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO PETITION TO INTER-VENE AND REQUEST FOR HEARING BY DR. ROBE'.T PROVAS0LI, ET AL." and " NOTICE OF APPEARANCE" of Robert G. Perlis and David A. Reoka, in the above-captioned proceedino, have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, throuoh deposit in the Nuclear Regulatory Commission's internal mail system, this 23rd day of December,1081:
Helen Hoyt, Esq., Chairman
- Dr. Emmeth A. Luebke*
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Panel Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. Oscar H. Paris
- Administrative Judge Paula Gold, Asst. Atty. General Atonic Safety and Licensing Board Stephen M. Leonard, Asst. Attorney Panel Jo Ann Shotwell, Asst. Attorney U.S. Nuclear Regulatory Commission Office of the Attorney General Washington, D.C.
20555 Environmental Protection Division One Ashburton Place, 19th Floor Lynn Chong Boston, MA 02108 Bill Corkum Gary McCool Nicholas J. Costello Box 65 1st Essex Distr'ct Plymouth, NH 03264 Whitehall Road Amesbury,ti^ 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. Box 516 1725 I Street, N.W.
Manchester, NH 03105 Suite 506 Washington, D.C.
20006
.* 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,itE 04333 Edward J. McDermott, Esq.
Wilfred L. Sanders, Esq.
Sanders and McDermott
, Sanders and !!cDermott 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 Rnpes & Gray Cercord, 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 Robert L. Chiesa, Esq.
Docketing and Service Section*
Wadleigh, Starr, Peters, Dunn Office of the Secretary
& Kohls U.S. Nuclear Regulatory Commission 95 Market Street Washington, D.C.
20555 Manchester, NH 03101 Ms. Patti Jacobson 3 Orance Street Newburyport, MA 01950 Roy'P. Lessy
[J Deputy Assistant Chief Hearing Counsel