ML20040C026
| ML20040C026 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 01/22/1982 |
| From: | Lazo R Atomic Safety and Licensing Board Panel |
| To: | Coltonmanheim AFFILIATION NOT ASSIGNED |
| References | |
| ISSUANCES-OLA, NUDOCS 8201270180 | |
| Download: ML20040C026 (13) | |
Text
,TED STATES OF AMERICA 00 @
h + EAR REGULATORY COMMISSION
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~0MIC SAFETY AND LICENSING BOARD g.
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Administrative Judges:
s Robert M. Lazo, Chairman
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MECEfVED Dr. Peter A. Morris Q
Dr. Cadet H. Hand, Jr.
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In the Matter of:
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oc et No. 50-309-OLA IMINE YANKEE ATOMIC POWER COMPANY (Maine Yankee Atomic Power Station)
January 22, 1982
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MEMORANDUM AND ORDER REGARDING PETITION FOR LEAVE TO INTERVENE FILED BY DAVID COLTON-fMNHEIM During the prehearing conference on August 11, 1981, almost two years after the date of the original notice of opportunity for intervention in theabove-identifiedproceedin[,andoverfivemonthsafterthefiling date set forth 1.n the supplemental notice of opportunity for interventionU, David Colton-Manheim (Petitioner) submitted to the Board a hand-delivered document entitled, " Written Petition For Leave To Intervene by The Down East Alliance, in the person of David Colton-Manheim," dated August 11, 1981 (Petition).
Attached to this Petition are an undated letter from Mr. Colton-Manheim to Judge Hand and a copy of an NRC News Release dated July 27, 1981, KO}
1/ 44 F.R. 61273 (October 24,1979) g 2] 46 F.R. 9315 (January 28,1981) 8201270180 820122 PDR ADOCK 05000309 0
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2 regarding the scheduling of the August 11, 1981 prehearing conference.
Since that time, Petitioner has supplemented his Petition with (1) a one-page, untitled pleading dated August 29, 1981 which sets forth "A Specific Contention"; (2) a nine-page. letter dated September 10, 1981, addressed to the Board Chairman,E (3) a one-page pleading entitled,
" Objection & Appeal" dated September 21, 1981; and (4) a three-page untitled, undated, document mailed on November 23, 1981 from Gouldsboro, Maine which, among other things, requests the Board to schedule another prehearing conference.
Licensee and NRC Staff have filed responses urging the Board not to grant the Petition. We agree that the Petition must be denied.
I.
A.
In order to gain admission into a proceeding, a late intervention petitioner must address the five pertinent factors in 10 C.F.R. 5 2.714(a)(1),
and affirmatively demonstrate that on balance, they favor such admission.
Duke Power Co. (Perkins Nuclear Station Units 1, 2 and 3), ALAB-615, 12 NRC 350, 352 (1980). That section provides that nontimely filings will not be entertained absent a determination that the petition should be granted based upon a balancing of the following factors ~ in addition to those set out in paragraph (d) of 5 2.714:
(i) 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.
~3/ At the direction of the Board Chairman, Mr. Colton-Manheim's letter was served on the other Board members and all parties to the proceeding.
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3 (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.
Whether there is good cause for the filing delay is most impcrtant in every consideration of whether to grant a late intervention petition. Where no good excuse is tendered for the tardiness, a petitioner's demonstration on the other factors must be particularly strong. Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-431, 6 NRC 460, 462 (1977).
Several reasons are alleged by Petitioner as good cause for failure to file on time. These include:
- 1) that Petitioner was not informed of the proceeding (Petition, at 1); 2) that the Petitioner's hand-written note to Judge Hand and raference to the NRC News Release (attached to the Petition) in itself is good cause (M. at 1); and 3) that Petitioner requested information from Karl Abraham of the NRC Office of Public Affairs, Region I at some time "before TMI" (M. at 2).
As indicated, infra, opportunity for intervention was twice noticed in the Federal Register.
Failure to read the Federal Register does not justify the nontimely filing of a petition for leave to intervene. Long Island 4
Lighting Company (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631, 646-47 (1975); and New England Power and Light Company (NEP, Units 1 and 2), 7 NRC 932, 933-34 (1978).
The fact that the Petitioner requested information from the NRC regional office, submitted a letter to Judge Hand and referenced the NRC News Release, doesrot establish that the Petitioner exercised due diligence to appraise himself of the proposed amendment and file a petition in accordance with the requirements of 10 C.F.R. 5 2.714. These requirements were
4 summarized in the above cited Federal Register Notices. None of the reasons cited by the Petitioner indicate that he was deligent in discovering or exercising his rights.
In his pleading dated August 29, 1981, the Petitioner asserts " poverty" as an additional reason for good cause for the late filing of the Petition.
No explanation how poverty caused the late filing is provided.
However, in the document mailed on November 23, 1981, Petitioner notes that he cannot affued The Congressional Record,10 C.F.R. or the Federal Register, cannot afford postage, and has had "to forego access to the depository in Wiscasset."
Such explanation, in view of the numerous pleadings filed since, does not amount to a substantial reason for not having filed the Petition at an earlier date. 'Accordingly, the assertion of poverty as an additional reason for good cause for the late filing of the Petition must fail.
Regarding the second factor to be considered, the Petition fails to l
show that_the Petitioner has no other means to protect his interest or the interests of the organization he purportedly represents.S/ Petitioner's interest could be-protected by permitting him to make a limited appearance statement pursuant to 10 C.F.R. 5 2.715(a).
See, Tennessee Valley Authority (Brcwns Ferry Units 1 and 2), ALAB-341, 4 NRC 95, 96 (1976). Petitioner is also free to furnish financial, technical or legal assistance to another Intervenor.
Virginia Electric Power Company (North Anna, Units 1 and 2),
ALAB-289, 2 NRC 395, 399 (1975). Accordingly, the Board will grant Petitioner's 4/ Petitioner gives no indication of his relationship to Down East Alliance let alone its membership.
Further, there is no indication in the Petition that the Petitioner has been authorized to act for Down East Alliance.
5 request (pleading dated August 29,1981) to make a limited appearance statement pursuant to,the provisions of 10 C.F.R. 5 2.715.
The third factor, the extent to which Petitioner can assist in developing a sound record, also weighs against permitting late intervention.
Petitioner has not indicated any special expertise which would aid in the development of a sound record. See Cincinnati Gas and Electric Co.
(William H. Zimmer Nuclear Station), LBP-80-14,11 NRC 570, 576 (1980).
An examination of the petition shows it unlikely that any special expertise to help in reaching an informed decision could be supplied by the Petitioner.
l Consideration of the fourth factor, the extent to which the Petitioner's interest will be represented by existing parties, and the fifth factor, the extent to which Petitioner's participation will broaden the issues or delay the proceeding, do not result in a decision favorable to the Petitioner. Petitioner does note in his letter to Judge Hand three areas of concern without much explanation. They are:
1)"Notaccident
' false design'"; 2) " Moth ball ' Placement Into Pressure Safe Storage (economic as well as other reasons)'"; and 3) " sabotage".
It cannot be judged whether this list of concerns would be encompassed in the contentions raised by Sensible Fbine Power or the State of Maine.
The single contention identified by the Petitioner in the Amendment of August 29, 1981, states:
Mothball (Placement Into Passive Safe Storage) Maine Yankee now (A.S.A.P.) allowing for reopening (operation) later, even after 2008 (end of licensed period), denying thereby both the need for, and the application of, applicant for spent fuel compaction; but not to deny the possibility of recycling, even on site, through migration of the radionuclides which should be studied both as to the danger of inadvertent criticality and its possible useful employment.
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This contention is vague and unspecific and completely fails to meet the contention requirements of 10 C.F.R. 5 2.714. The language of the contention is so unspecific that the parties cannot know what they would have to defend against or oppose.
Further, the contention is totally devoid of any basis. Moreover, the contention is so vague that it cannot be determined whether or not the contention falls within the scope of the issues set forth in the Notice of Hearing.
Finally, to the extent that the Petitioner is contending that the plant be " mothballed" until the year 2008 to avoid the need for the requested expansion, he is seeking relitigation of a matter that was resolved when the forty-year operating license was issued. At that time, the impact from the total waste which Maine Yankee would produce during the full term of its license was considered and found agceptable.
In his nine-page letter dated September 10, 1981, Petitioner refers to a " threatening note" found in a security area at the Maine Yankee plant which was reported in the Bangor Daily News on July 31, 1981.
Petitioner asserts that "the exic.ing parties do not include it" (page 5),
but has not advanced a contention relating to the matter in support of any argument that his interest will not be represented by existing parties.
The Board has carefully studied the various pleadings filed by the petitioner including the document mailed on November 23, 1981 in which Petitioner notes that he has addressed the five-factors (pages 2 and 3).
On balance, it is manifestly evident that consideration of the five factors weigh against acceptance of the present etition.
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7 B.
The Commission's Rules of Practice (10 C.F.R. 5 2.714) require that a petition for leave to intervene "shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding."
The Petitioner has not satisfied this requirement whether he is petitioning for intervention on behalf of himself or the Down East Alliance.
With regard to interest and standing to intervene as-of-right, the Commission has established that contemporaneous judicial concepts of i
standing are to be applied in determining whether a petitioner should be admitted as a party to an NRC proceeding.
Portland General Electric Company, et al.
(Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610,
-613-14 (1976); Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143, 1144-45 (1977). Consequently, a petitioner must show that the proposed action which is the subject of the proceeding could result in " injury in fact"5_/ to an interest which is
" arguably within the zone of interest" protected by the Atomic Energy Act or the National Envir.onmental Policy Act.
Pebble Springs at 4 NRC 613-14.
1 5/ " Abstract concerns" or a " mere academic interest" in the matter which are not accompanied by some real impact on a petitioner will l
l not confer standing. Transnuclear Inc., et al.
(TenApplications for Low-Enriched Uranium Exports to Euration Member Nations),
CLI-77-24, 6 NRC 525, 531 (1977); Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613 (1976).
Rather the asserted harm must have some particular effect on a petitioner, Transnuclear, supra, and a petitioner must have some direct stake in the outcome of the proceeding. See Allied-General Nuclear Services, et al.
(Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 422 (1976).
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Further, the Petitioner has not demonstrated that he resides. "within the goegraphical zone that might be affected by an accidental release of fission products," Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 at n.6 (1973)5/ or that his normal everyday activities is in the vicinity of the Maine Yankee facility. Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 (1974).E The Petitioner has made no attempt to assert an injury in fact.
.He does, however, state a mailing address. The address, given by the Petitioner, Gouldsboro, Maine, is more than 90 miles from the Maine Yankee facility. This is well beyond the distance found by the Appeal Board to be "within the geographical zone of interest."
To the extent the Petitioner seeks to intervene on behalf of Down East Alliance,E/ e has also failed to demonstrate the necessary " interest."
h It is well settled that an organization ma'y gain standing to intervene based on injury to itself or to its members. TVA (Watts Bar Nuclear Plant, t
Units 1 and'2), ALAB-413, 5 NRC 1418 (1977).
If the organization seeks standing on its own behalf, it must establish that it will be injured and that the injury is not a generalized grievance shared in substantially 6/ The Appeal Board has held that geographical proximity of a member's residence to a facility is sufficient, standing alone, to satisfy the interest require-ments of 10 C.F.R. 5 2.714. Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979).
7/ A petitioner who resides at an appreciable distance from a nuclear facility but who frequently engages in substantial business and related activities in the vicinity of the facility may establish the requisite interest and and standing. See Portland General Electric Company, et al.
(Trojan Nuclear Plant), Order Concerning Requests for Hearing and Intervention Petitions (unpublished), July 27, 1978 and Portland General Electric Company, et al.
(Trojan Nuclear Plant) ALAB-496, 8 NRC 308 (1978). See note 9, supra.
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-8/ The Petitioner has not given any indication that he has been authorized to represent Down East Alliance.
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9 equal measure by all cr a large class of citizens.
In the Matter of Ten Applications CLI-77-24, 6 NRC 525, 531 (1977). On the other hand, an organization can e~stablish standing through members of the organization who have interests which may be affected by the outcome of the proceeding.
Public Service Co. of Indiana (Marble Hill Nuclear Generating S'tation, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976). At the same time, when an organization claims that its standing is based on the interests of its members, the organization must identify specific individual members whose interest might be affected by the proposed action, describe how the. interests of each of those members might be affected and show that each of those members has authorized the organization to act on his behalf. Allied General Nuclear Services, et al.
(Barnwell Fuel Receiving and Storage Station), ALAB-328 3 NRC 420, 422 (1976); Public Service Electric & Gas Compay (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 488-89 (1973);
Duquesne Light Company, et al.
(Beaver Valley Power Station, Unit 1),
ALAB-109, 6 AEC, 244 at n.2 (1973).
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The Petitioner has made no attempt to demonstrate standing based l
on an injury to Down East Alliance itself, or to any of its members.
Accordingly, the Petitioner has completely failed to establish interest and standing to intervene as-of-right with respect to himself or Down East Alliance.
C.
Although a petitbner may lack standing to intervene as of right l
under judicial standing.w upts, he nevertheless could be admitted as a party in the Licensing Board's discretion. The Licensing Board is to be guided in this exercise of discretion by a consideration of the factors set forth in 10 C.F.R. 5 2.714(a) and (d):
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10 (1) the extent to which the petitioner's participation = y 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 on the petitioner's interest of any order which may be entered in the proceeding; (4) the availability of other means whereby the petitioner's interest will be protected; (5) the extent to which the petitioner's interest will be represented by existing parties; and (6) the extent to which the petitioner's participation will inappropriately broaden or delay the proceeding.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2),
CLI-76-27, 4 NRC 610, 616 (1976).
In this regard, the most important factor to consider is the extent to which.the petitioner's " participation would likely produce 'a valuable contribution... to [the] decision making process'".
Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-397, 5 NRC 1143, 1145 (1977). The burden of convincing the Licensing Board that discret,ionary intervention is appropriate rests upon the petitioner. Nuclear Engineering Co. (Sheffield Low Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 745 (1978).
It is clear from an examination of the instant Petition that the Petitioner has failed to demonstrate any reason why discretionary intervention should be granted. Accordingly, the Petition must be denied.
D.
As noted hereinabove, Petitioner has advanced a single contention which is vague and totally devoid of any basis.
As a general matter, for a contention proposed to be admissible, it must fall within the scope of the issues set forth in the Federal Register
11 Notice of Hearing (Notice of Hearing) in this proceeding, and comply with the requirements of 10 C.F.R. 5 2.714(b).
10 C.F.R. 5 2.714(b) requires that a list of contentions wh'ch petitioners seek to have litigated be filed along i
wit' the bases for those contentions set forth with reasonable specificity.
It is incumbent upon the Petitioner to (1) set forth contentions which are sufficiently detailed and specific to demonstrate that the issues are admissible and that further inquiry is warranted, and to put the other parties on notice as to what they will have to defend against or oppose and (2) set forth the reasons (basis) for each of the contentions without having to detail the evidence which would later be offered in support of each contention.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3) ALAB-216, 8 AEC 13, 20-21 (1974); Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 546-551 (1980).
The Petitioner, here, has failed to meet these requirements in every respect. The specific contention submitted on August 29, 1981 provides no basis and is sa vague that the parties could not possibly be on notice as to what they would have to defend against. Accordingly, the Petitioner has failed to meet the contention requirements of 10 C.F.R. 5 2.714.
II In the undated, untitled, document nailed on November 23, 1981, Petitioner requested that a prehearing conference be scheduled to enable Petitioner to more fully rerpond to the arguments in opposition to the specific contention advanced in his amended petition of August 29, 1981.
However, on the basis of the written filings submitted to date, the Board i
12 does not believe that another prehearing conference is necessary or desirable.
Petitioner has had ample opportunity to address in writing the objections to his specific contention. Moreover, Petitioner has completely failed to establish interest and standing to intervene in the instant proceeding.
III Today, after this Order had been drafted, the Board received another untitled pleading from the Petitioner. This document of five pages bearing the date " Tuesday 12/29/81" was docketed on January 15, 1982 and served on all parties on January 21, 1982.
The Board has considered the December 29, 1981 filing of the Petitioner and ' determined that nothing in this latest filing cures the deficiencies in the Petition for Leave to Intervene filed by David Colton-Manheim which have been identified above.
IV For the foregoing reasons, the Board finds (1) that the Petitioner has failed to demonstrate good cause or a favorable balancing of other factors which must be considered in support of his late filed petition, and (2) that even if the Board determined that it would entertain the Petition, it must be denied because it failed to satisfy the " interest" and " contention" requirements of 10 C.F.R. 5 2.714.
V ORDER For the foregoing reasons and based upon a consideration of the entire record in this matter, it is this 22nd day of January,1982
e 13 ORDERED (1) That tne Petition for Leave to Intervene filed by David Colton-Manheim is denied, and (2) That Lavid Colton-Manheim's request to make a limited appearance in this proceeding is granted.
This Order denying a petition for leave to intervene may be appealed by the Petitioner to the Atomic Safety and Licensing Appeal Board within ten (10) days after service of the Order. The appeal shall be asserted by the filing of a notice of appeal and accompanying supporting brief.
FOR THE ATOMIC SAFETY AND LICENSING BOARD Y - (2/2 P -
RobertM.Lazo,Chaiyn
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ADMINISTRATIVE JUDGE l
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