ML20041E580
| ML20041E580 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 03/09/1982 |
| From: | Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8203110112 | |
| Download: ML20041E580 (29) | |
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03/0 CJ UNITED STATES OF AMERICA RECEIVED NUCLEAR REGULATORY COMMISSION g
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD aman 9
M In the Matter of 4
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CAROLINA POWER & LIGHT CO. and Docket Nos. 50-400 NORTH CAROLINA MUNICIPAL POWER 50-401 AGENCY NO. 3
)
)
(Shearon Harris Nuclear Power Plant,
)
Units I and 2)
)
NRC STAFF RESPONSE TO PETITIONS FOR LEAVE TO INTERVENE I.
INTRODUCTION On January 27, 1982, the Nuclear Regulatory Comission published in the Federal Register (47 Fed. Rec. 3898) a notice of opportunity for a hearing on the application for operating licenses for the Shearon Harris Nuclear Power Plant, Units 1 and 2.
That notice established February 26, 1982 as the deadline for filing requests for a hearing and petitions for leave to intervene. Nine petitions for leave to intervene and requests for a hearing were filed.
With regard to the petitions, five are from organizations that are petitioning for leave to intervene pursuant to 10 C.F.R. 92.714.
These include: Citizens Against Nuclear Power (CANP); the Conservation Council of North Carolina (the Council); Chapel Hill Anti-Nuclear Group Effort (CHANGE); the Environmental Law Project of the School of Law, University of North Carolina (ELP), and the Kudzu Alliance (Kudzu).
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Additionally, four individuals petitioned for leave to intervene:
They are:
Dr. Phyllis Lotchin; Wells Eddleman; Daniel F. Read, and Richard Wilson, M.D.
The Staff's responses to all of these petitions, except for that of Dr. Lotchin (to which the Staff has already respondedI/),aresetforth below. As stated belcw, the tJRC Staff (" Staff") believes that the petition of CANP is deficient and in its present form must be denied.2/
The petitions of CHANGE, the Council, ELP, Kudzu, Wells Eddleman, Daniel Read, and Richard Wilson, M.D. satisfy the requirements of 10 CFR
$ 2.714 and should be granted.
II. DISCUSSI0f!
Requirements for Intervention 1.
Petitioners Must Meet the Interest Requirements _
of 10 C.F.R. Q 2.714 The Commission's regulations require that a petitioner for leave to intervene submit a written petition setting forth with particularity the petitioner's interest in the proceeding and how that interest may be affected by the results of the proceeding, including the reasons why the
,1/
See "NRC Staff Response to Petition to Intervene Filed by Phyllis Lotchin, March 1, 1982.
2/
The Staff notes that the Commission's Rules of Practice provide
~
that any person who hr. filed a timely petition for leave to inter-vene may amend the petition without prior approval of the presiding officer at any time up to fifteen (15) days prior to the holding of the special prehearing conference pursuant to 10 CFR 6 2.751a.
10 CFR 6 2.714(a)(3). Thus, while CANP's petition in its present form fails to comply with the Comission's regulations, it may be possible for the defects noted in the Staff's response to be cured by a supplemental filing by CANP.
l petitoner should be permitted to intervene.
10 C.F.R. 5 2.714(a)(2).
This section also require:, the petitinn to make particular reference to the factors in 10 C.F.R. 6 2.714(d) which are as follows:
1)
The nature of the Petitioner's interest under the Atomic Energy
- Act, 2)
The nature of his property, financial or other interest in the proceeding, and 3)
The possible effect of an order in this proceeding on Petitioner's interest.
In determining whether the foregoing requirements have been satisfied, the Comission has ruled that contemporaneous judicial concepts of standing should be applied in NRC licensing proceedings.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2),
CLI-76-27, 4 NRC 610, 613-14 (1976). These concepts require a showing that the action being challenged could cause iniury in fact I 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 i
(1975); Sierra Club v. fiorton, 405 U.S. 727 (1972); Association of Data Processing Service Organizations v. Camp, 397 U.S.150,153 (1970). The l
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" Abstract 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 S) rings, CLI-76-27, supra, at 613.
Rather, the asserted harm must lave some particular ett'ect on 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).
Appeal Board nos ruled that the geographical proximity of petitioner's residence standing alone is sufficient to satisfy the interest require-ments of 10 C.F.R. 6 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 firm cuter 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 standing 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). E.
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. cen. ALAB-110, 6AEC247.S/
An organization may gain standing to intervene based on injury to itself. Ten Application _s_, CLI-77-?4, supra at 531.
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 equal measure by all or a large class of citizens. M. On the other hand, an organization can establish standing through members of the organization who have interests which may be affected by the outcome
- ~ '
The Appeal Board has also noted that part-time residence, such as 4/
that of a student, is not necessarily fatal to a particular petition. Watts Bar, ALAB-413, supra, at 1421.
However, when considering part-time residence as a basis for standing, it may will be relevant how long a petitioner is likely to remain in the area.
I_d.
of the proceeding.
Public Service Co. of Indiana (flarble Hill Nuclear Generating Station, Units I and '), ALAB-322, 3 NRC 328, 330 (1975). At c
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 interests might be affected by the proposed action, describe how the interests of each of those members might be affected and give some concrete indication that such members wish to have their interests represented in the proceeding. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 396 and 397.1979); Barnwell, ALAB-328, supra at 422-423; Public Service Electric & Gas Company (Salem Nuclear Generating Station, Units I and 2), ALAB-136, 6 AEC 487, 488-89 (1973); Duquesne Light Company (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 244 at n. 2 (1973).
Further, under Section 2.713 of the Commission's Rules of Practice, a " partnership, corporation or unincorporated association may be repre-sented by a duly authorized member or officer, or by an attorney-at-law."
10 C.F.R. 6 2.713(b) (emphasis added). Thus, where an organization is represented by one of its members, the member must demonstrate authoriza-l tion by that organization tn represent it. This demonstration is normally required to be made in the written notice of appearance.E 5]
10 C.F.R 5 2.713 provides, in part:
Any person appearing in a representative capacity shall file with the Commission a written notice of appearance which shall state his or her name, address, and telephone number; the name and address of the person on whose behalf he or she appears; and, in the case of an attorney-at-law, the basis of his or her eligibility as a representative or, in the case of another representative, the basis of his or her authority to act on behalf of the party.
l
. Finally, groups may not represent persons other than their own members, and individuals may not assert the interest of other persons.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
L8P-77-11, 5 NRC 481, 483 (1977); Watts Bar, ALAB-413, supra at 1421; Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit No. 2),
ALAB-470, 7 NRC 473, 474, n. 1 (1978). There is, under the Atomic Energy Act and the Commission's regulations, no provision for private attorneys general.
Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), ALAB-333, 3 NRC 804, n. 6 (1976); Shoreham, LPB-77-11, supra at 483.
2.
Petitioners liust fleet the " Aspect" Requirements of 10 C.F.R. % 2.714 In addition to demonstrating " interest", a petitioner must set forth "the specific aspect or aspects of the subiect matter of the proceeding as to which petitioner wishes to intervene."
10 C.F.R. 6 2.714(a)(2).6_/
While there is little guidance in NRC case law as to the meaning of
~6/
10 C.F.R. Q 2.714(b) requires the petitoner to file "... a supple-ment to his petition to intervene which must include a list of the contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable speci-ficity". This section further provides:
"A petitioner who fails to file such a supplement which satisfies the requirenents of this paragraph with respect to at least one contention will not be permitted to participate as a party."
The Shearon Harris Federal Register notice, supra, provides that such supplements to petitions are to be filed not later than fifteen (15) days prior to the first prehearing conference scheduled in the l
proceeding. 47 Fed. Reg., at 3900. The NRC Staff will respond to the contentions set forth in the supplements after their receipt.
Accordingly, nothing said herein by the Staff regarding a petitioner's " aspects" is intended to apply in any way to a l
petitioner's satisfaction of the 10 C.F.R. 9 2.714 contention requirements.
i l
l l
" aspect" as the tern is used in 10 C.F.R. 6 2.714, it appears that a petitioner may satisfy this requirement by identifying general potential effects of the licensing action or areas of concern which are within the scope of matters that may be considered in the proceeding. See North Anna, ALAB-146, supra at 633; Netropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), Licensing Board " Memorandum and Order Ruling on Petitions and Setting Special Prehearing Conference," dated September 21, 1979, slip op. at 6 (unpublished Order).
III. NRC STAFF RESPONSE TO PETITIONS FOR LEAVE TO INTERVENE A.
CANP By letter dated February 27, 1982, Patricia T. Newman and Slater E.
Newman, "co-coordinators" of Citizens Against Nuclear Power (CANP), filed a petition for leave to intervene (Petition) and request for hearing on behalf of CANP. This petition states that:
Our particular concerns are'the health and safety of our members and of those persons residing within a fifty mile radius of the plant.
(Petition at 1).
The Petition also lists the following other " additional concerns":
The potential ill effects on the personal property, animal life, and vegetation of the area; inadequate radiation monitoring and evacuation plans; and extra ordinary poor performance of CP&L's [ Carolina Powpr & Light Company's] elready existing nuclear plant operations and the concomitant contribution to the cost of electricity." (Id.)
At the outset, the Staff notes that CANP's February 27, 1982 petition is one day late, since the Federal Register notice, supra,
m 8
required that petitions.be filed by February 26, 1982.
(47 Fed. Reg.
at 3899). The co-coordinators of CANP (the Slaters) apparently believed the petition to be timely filed based on their interpretation of the Federal Register notice, supra, which they believed "to require a February 27, 1982 postmark."
(Petition, at 1). The Staff considers the one day lateness of this petition to be de_ ninimis and accordingly, the Staff is not treating this petition as untimely filed.U The petition, which requests that CANP "be granted intervenor status,"
(Petition at 1) seeks intervention for CANP itself as an organization.
As such, the Petition is deficient. There is a total absence of any indication in the petition as to the manner in which CANP's interest may be affected by the results of this proceeding or the means whereby the proposed operating license for the Shearon Harris Nuclear Power Plant could result in injury-in-far.t to CANP. The petition merely states a general concern about "the health and safety of our menbers and of those persons residing within a fifty mile radius of the plant" (Petition, at
- 1) and lists other " additional concerns." (Id.). The petition does not state why intervention by CANP should be permitted with particular reference to the factors set out in 10 C.F.R. 5 2.714(d) as required by the Federal Register notice and by section 2.714 itself.
In sum, while
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10 CFR 5 2.714(a) requires that a late-filed petition address the five factors which must be balanced in determining whether a non-timely petition for leave to intervene should be entertained.
Althouth the CANP petition is technically late filed, in view of the de minimus nature of the lateness, these factors need not be baTanced in determining whether CANP's petition should be entertained.
CANP as an organization appears to have identified at least some vaguely defined interest in the proceeding, it has wholly failed to shown the manner in which that interest might be affected or to even allege that its interest could be affected by the proceeding. Accordingly, it is the Staff's view that the petition, in its present form, is insufficient to demonstrate CANP's standing as an organization to intervene as of eight under 10 C.F.R. 9 2.714 This petition may also be construed as a request by CANP to intervene on behalf of its members and "those persons residing within a fif ty mile radius of the plant."
(Petition, at 1).
It is clear that CANP cannot assert the interests of individuals other than its members.
Shoreham, LBP-77-11, supra; Watts Bar, ALAB-413, supra, at 1421; Fermi, ALAB-470, supra, at 474 n.1.
Even if CANP is seeking to intervene as an organization on behalf of its members, CANP's petition is also deficient. A party may intervene as of right only when he/she asserts his/her own interest under either the Atomic Energy Act or the National Environmental Policy Act. Watts Bar ALAB-413, supra, et 1418, 1121.
If an organization seeks to establish standing as a representative of its members who have an interest, it nust identify such members and establish that at least one member has a cognizable interest that might be affected by the results of the proceed-ing. Allens Creek, ALAB-535, supra. The member with such an interest must authorize the organization to represent his/her interests where such authorization cannot be presumed from the nature of the organization.
.I d_.
The petition has failed to identify any CANP members, although Patricia T. and Slater E. Newman, who filed the petition on behalf of CANP, are identified as "co-coordinators".
In addition, the petition fails to give concrete indication that these individuals are actually members of the organization or that they have authorized it to represent them.
Further, the petition does r.et establish that these individuals have a cognizable interest that may be affected by the results of the proceeding. Until such a showing is made, the petitinn is defective, insofar as it seeks intervention of CANP as an organization on behalf of its members. This showing should, to provide a concrete indication of authorization, involve a writt*n statement on the part of the member authorizina CANP's representation.
Pursuant to 10 C.F.R. 9 2.713 of the Commission's regulations, an organization may be represented by a duly authorized member or officer, or by an attorney-at-law. The cover letter to the petition is signed by the Slaters, as the "co-coordinators" of CANP. However, the petition does not indicate whether the Slaters are duly authorized members or officers of CANP. Therefore, to the extent that the Slaters seek to represent CANP in this proceeding, the petition must be amended to demonstrate that the Slaters have been authorized by CANP to act as its representatives in this proceeding.
Although a petitioner may lack standing to intervene as of right under,iudicial standing concepts, it nay nevertheless be admitted as a party in the Licensing Board's discretion. The Licensing Board is to be guided in the exercise of its discretion in this vein by a consideration of:
(1) the extent to which the petitioner's participation 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; (3) the possible effect on the petitioner's interest of any order which may be entered in the proceeding; (4) the availability of other neans to protect the petitioner's interest; (5) the extent to which the petitioner's interest will be represented by existing parties; and (6) the extent to which petitioner's participation will inappro-priately broaden or delay the proceeding.
Pebble Springs, CLI-76-27, supra, at 610, 616.
The primary factor is the significance of the contribution that a petitioner might make.
Id. The need for a showing as to potential con-tribution is especially strong in an operating license proceeding where no petitinners have established standing as of right and where, absent such a showing, no hearing would be held. Watts Bar, ALAB-413, supra, at 1418, 1422.
l In the instant case, no information is presented in the petition that would allow a determination as to the potential contribution of CANP, as an organization, to the development of a sound record or a decision on any of the other factors bearing on discretionary inter-l l
vention. Accordingly, it is the Staff's view that discretionary inter-l vention cannot be granted based on the petition as it is presently l
constituted, l
In sun, the CANP petition is insu?'icient to demonstrate CANP's standing to intervene as of right under 10 C.F.R. 62.174 either itself or on behalf of its members. The petition also fails to establish that CANP should be granted intervention as a matter of discretion.
Accordingly, CANP's petition in its present form,8_/ must be denied.
B.
The Conservation Council of North Carolina On February 22, 1982, John Runkle, " Executive Coordinator" for the Conservation Council of North Carolina (Council) filed a timely petition for leave to intervene (Petition) on behalf of the Council. According to the petition, the Council is a "non-profit public interest citizen organization founded in 1969 to focus on environmental concerns" (Petition, at 2), which "has over 500 individual members and 30 member organizations across North Carolina."
(Id.) The Council also requests
" financial assistance in order to carry out properly the role that the Atomic Energy Act intended for public intervenors to have in Nuclear Regulatory Commission license proceedings." (Id.)
At the outset, the Staff notes that the Council appears to seek to intervene on its own behalf and on behalf of its members. According to the petition, the Council:
l
... includes among its members and member organizations numerous individuals who reside, work and/or own property in the vicinity of the power plant."
(Petition,at2).
The injury alleged by the Council is a generalized injury to its members from the operation of Shearon Harris. Such generalized injury is
{
i 8/
See footnote 2 above.
l insufficient to establish the organization's standing to intervene in the proceeding on its own behalf. See Ten Applications, CLI-77-24, supra.
This portion of the Council's petition should, therefore, be denied.
The Council's petition may also be viewed as a request by the Council to intervene on behalf of its members, since the petition identifies a number of Council members, including Mr. Runkle (the
" Executive Coordinator") who, according to the petition, " live within a 50-mile radius of the Shearon Harris plant." (Petition, at 1). The Council also alleges that all of these individuals, including Mr. Runkle, would be adversely affected by routine operation of Shearon Harris and by an accident at the plant.
(Id.,at1-2).
The Staff notes that the Appeal Board has stated regarding satis-faction of standing requirements by an organization that it is "enough for standing purposes that the petition had been signed by a ranking official of the organization who himself had the requisite personal interest to support an intervention petition." Duke Power Co. (Amendment to Materials License SNM-1773 - Transportation of Spent Fuel From Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146, 151 (1979). On this basis then, the Cot.ncil could intervene in this proceeding based on the petition signed by John Runkle, who identifies himself as its Executive Coordinator, since Mr. Runkle himself has the requisite personal interest to support an intervention petition based on.
his residence within the geographic " zone of interest" (North Anna, ALAB-522, supra). However, to eliminate any concerns with regard to standing, it would be preferable for Mr. Runkle to sub.ait a statement
. indicating that he seeks to have his interests represented by the Council.
Pursuant to 10 C.F.R. 52.713 of the Commission's regulations, an organization may be re;
'nted by a duly authorized member or officer, or by an attorney-at-law. The Council's petition is signed by the organization's " Executive Coordinator". The petition does not indicate whether this person is a duly authorized member or officer of the Council. Therefore, this petition must be amended to demonstrate that its signer has been authorized by the organization to act as its representative in this proceeding.
The Council lists a number of specific issues as to which it wishes to intervene, including " unresolved safety issues pertaining to nuclear reactors; response and evacuation planning; environmental impacts; need for power; financial capability, and managerial capacity of both Carolina Pcwer and Light and MPA3 [ North Carolina Municipal Power Agency No. 3]".
(Petition,at2). All of these issues are within the scope of this proceeding, and accordingly, the Council has met the aspects requirement of 10 C.F.R. 62.714(a)(2).
In sum, the Council has met the " aspect" requirements of 10 C.F.R.
%2.714(a)(2).
In addition, the Council has satisfied the reouirement that at least one of its members (Mr. Runkle) has an interest which night be adversely affected by the outcome of this proceeding.
fir. Runkle has impliedly authorized the organization to represent him in this proceeding.
The petition should be amended to show that Mr. Runkle, as the Council's " Executive-Coordinator," is authorized to represent the Council in this proceeding.
. The Council's request for financial assistance must be denied.
Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2),ALAB-666 NRC (February 12, 1982) (Slip. op., at 2).
The Appeal Board there noted:
... agency funding of intervenor participation is proscribed by Section 502 g Pub. L. No. 97-88, 95 Stat. 1135 (1981)..."
Id.
C.
Chapel Hill Anti-Nuclear Group Effort (CHANGE)
On February 17, 1982, Daniel F. Read, President, CHANGE, timely filed a petition for leave to intervene (Petition) on behalf of CHANGE,
" individually and as a group" (Petition at 2). By letter dated Februa ry 25, 1982, CHANGE filed an "" Amendment" to its petition identifying two individuals (Joesph A. Herzenberg and Daniel F. Read) as members of CHANGE having " property interest in Chapel Hill, North Carolina, approximately 18 miles from the plant site, which would be adversely affected by a decision...to issue an operating license..." (Amendment, at 1).
Both individuals signed a statement in the amendment verifying their membership in CHANGE and authorizing CHANGE to represent their interests in the proceeding. The amendment also requests that a copy of the Final Safety Analysis Report (FSAR) and the Environmental Report (ER) be sent to CHANGE (Amendment, at 2), since "these documents are not otherwise available except at distances of 18 miles or more...."
( I_d. )
9]
Section 502 states:
None of the funds in this Act shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in this Act.
According to the petition and amendment, CHANGE is a ' citizen's organization based in Chapel Hill, North Carolina..." (Petition at 1).
The injury alleged by CHANGE on its own behalf is a generalized injury to its members, based on such nember, " property, financial and other interests in the area which would be affected by the Licensing of the plant..." (Petition, at 2). Such generalized injury is insufficient for CHANGE to gain standing to intervene in this proceeding on its own behalf. Ten Applications, CLI-77-24, supra.
CHANGE's petition may also be considered as a request for leave to intervene in this proceeding on behalf of certain CHANGE members.
It appears from CHANGE's petition that the members named in the amendment reside in Chapel Hill, North Carolina, which is in " geographical proximity" to the Shearon Harris Units. North Anna, ALAB-522, supra.
(Petition at 1 and Amendment at 1).
CHANGE claims that the above-named members have a cognizable interest in the outcome of this proceeding.
Id.
CHANGE further alleges that the personal safety of its members, including the individuals named in the amendment, will be affected by the operation of Shearon Harris.
Id.
The Staff believes that CHANGE's petition, as amended, demonstrates CHANGE's standing to intervene in this proceeding on behalf of certain CHANGE members.
By means of this amendment, CHANGE has provided a concrete indication that at least one member whose interest might be affected by the outcome of the proceeding has specifically authorized the organization to represent that member.
See Allens Creek, ALAB-535, supra.
In addition, since the petition is signed by the individual identified as the President of CHANGE (Daniel F. Read), it appears that CHANGE will be represented in this proceeding by a duly authorized member or officer.
CHANGE sets forth a number of issues with regard to which it wishes to intervene.
These issues include "the need for the plants, the ability of CP&L [ Carolina Power & Light Company] to operate it safely, the safety of the plant itself, the emergency preparedness of the plant and operators, the adverse environmental effects on air and water, and the threat of waste storage at the plant".
(Petition, at 2). All of these issues appear to fall within the scope of the proceeding.
Petitioner has thus met the " aspect" requirement of 10 C.F.R. 62.714(a)(2) of the Commission's regulations.
In sum, CHANGE has demonstrated its standing to intervene as an organization on behalf of the two named members signing the amendment who have the requisite interest to support an intervention petition. CHANGE has also satisfactorily set forth the aspect or aspects of the subject matter of the proceeding as to which it wishes to intervene. Accordingly, CHANGE'spetitionforleavetointerveneshouldbegranted.lE/
i
---10/ The Staff believes CHANGE's request that it not be consolidated with other groups or individuals (Amendment, at 1-2) is premature, since consolidation applies only to parties in this proceeding, and not all of the parties have yet been determined. As indicated infra, however, Daniel F. Read, the President of CHANGE, also filed a separate petition for leave to intervene.
Since he is one of the CHANGE members on whose separate behalf CHANGE is seeking to inter-vene, it is not apparent that his interest in this proceeding as an individual differs from his interest as a member and President of CHANGE. On this basis, consolidation of CHANGE and Daniel F. Read may be appropriate.
l
With respect to CHANGE's reouest for copies of the FSAR and ER, the Staff notes that as the Federal Register notice supra, indicates, both of these documents are available in the Local Public Document Room (LPDR) established in this proceeding at the Wake County Library in Raleigh, North Carolina. 47 Fed. RS. at 3900.
If CHANGE wishes copies of these documents for its own use, it should direct its request to the Applicants.
D.
The Environmental Law Project (ELP)
On February 17, 1982, George Jackson, Secretary, ELP, timely filed a petition for leave to intervene (Petition) on behalf of the ELP.
E o ELP's petition con-Mr. Jackson later filed an undated amendment t
taining the fiarch 1, 1982 signatures of two members of the ELP, including Mr. Jackson, who 1) state that they live in Chapel Hill, North Carolina (which is stated to be eighteen (18) miles from the Shearon Harris site) and 2) authorize the ELP to represent their interests in this proceeding.
According to the petition and amendment, the ELP is:
"...a group of law students at the University of North Carolina School of Law, located in Chapel Hill, North Carolina, approximately 18 miles from the plant site" (Petition, at 1, Amendment at 1).
ELP claims that its members have a " direct personal health and welfare interest at stake in the proceeding" (Petition at 1), based on their residence, attendance in school and family ties in the Chapel Hill area (Id_. at 1-2).
The injury asserted by ELP on its own behalf is a generalized injury to its members.
Such injury is insufficient to give ELP standing to
-11/ The amendment itself it undated, although the individuals signing it date their signatures March 1, 1982.
intervene in this proceeding on its own behalf. Ten Applications, CLI-77-24, supra.
However, the Staff believes that ELP has established standing to intervene as an organization on behalf of the members who signed the amendment. 3 ch member signing the amendment indicates that 1) he is a member of ELP and 2) he lives and works in the Chapel Hill area, which is within the geographic " zone of interest".
(See North Anna, ALAB-522, supra).
In addition, each member signing the amendment authorizes ELP to represent him in this proceeding.
The cognizable interests of ELP members, as stated in the petition and amendment, appear to apply to each of these individuals.
In addition, the petition is signed by Mr. Jackson, who states that he is a member and secretary of ELP.
ELP will thus be represented by an individual authorized to represent it in this proceeding.
ELP has identified the specific aspects of the subject matter of the proceeding as to which it seeks to intervene as follows: "the qualifications for managing the plant of the primary applicant, CP&L, the financial capability of the secondary applicant, NCMPA 3, the design of the plant, the adverse effect of the plant on the environment around the plant... and inadequate emergency preparedness." (Petition,at2).
Since all of these issues appear to fall within the scope of this proceeding, ELP has met the " aspect" requirement of 10 C.F.R.
92.714(a)(2).
In sum, it appears that the ELP petition for leave to intervene meets all the requirements of 10 C.F.R. Q2.714 and should be granted.
E.
The Kudzu Alliance On February 24, 1982, M. Travis Payne, Esq., timely filed a petition for leave to intervene (Petition) on behalf of the Kudzu Alliance (Kudzu).
Kudzu seeks to intervene "on its own behalf and on behalf of its nembers, and on behalf of other persons who are similarly situated."
(Petition, at 1). According to the petition, Mr. Payne is tha attorney and authorized representative of Kudzu.
The petition also requests that copies of the FSAR and ER be provided to Kudzu and its attorney and that the time for filing contentions be set no sooner than 30 days after delivery of those documents.
(Petition at 6).
The petition describes Kudzu as:
"...a not-for-profit membership organization incorporated under the laws of the State of North Carolina, with its principal offices in Durham.
It has a state-wide membership which has organized for the purposes of monitoring the development of safe and renewable energy sources to meet human needs, and educating the public about the dangers and costs of commercial nuclear power and radioactive wastes.
(Petition, at 1-2).
Attached to the petition is the affidavit of James J. Overton, (Affidavit) dated February 24, 1982. Mr. Overton states that 1) he is a member of Kudzu, 2) is its Secretary, 3) that he resides in Durham, North Carolina, "which is within 50 miles of the Harris site " (Affidavit, at 2) and 4) his health, safety,.iob and property would be at risk from~
the operation of the plant.
Id. Mr. Overton also authorizes Kudzu to represent him in this proceeding.
The affidavit also identifies eight other individuals as members of Kudzu who " reside within 50 miles of the Shearon Harris plant."
(Affidavit, at 2).
The injury alleged.by Kudzu is a generalized injury to its members and to Kudzu's " offices and treasury" (Affidavit at 1). The allegation of generalized injury to Kudzu's members is insufficient to establish the organization's standing to intervene in this proceeding in its own behalf.
See Ten Applications, CLI-77-24, supra.
Kudzu's petition suggests, but does not elaborate, an injury to Kudzu's offices and treasury as a result of operation of Shearon Harris. While the allega-tion of injury to Kudzu itself as a result of plant operation may be sufficient to establish Kudzu's staniing on its own behalf, as stated below, Kudzu has clearly established standing to intervene on behalf of one of its nenbers. Thus, this alternate basis for standing need not be considered further.
To the extent that Kudzu seeks to intervene on behalf of individuals other than its members, its petition must be denied. Kudzu lacks standing to intervene on behalf of such individuals since it may not assert the interest of non-members in this proceeding. Shoreham, LBp-77-11, supra; Watts Bar, ALAB-413, supra; Fermi, ALAB-470, supra.
However, the Staff believes that Kudzu has established standing to intervene on behalf of one of its members, Mr. Overton, who has a cognizable interest in this proceeding. According to Mr. Overton's affidavit, he lives within the geographic " zone of interest" (See North Anna, ALAB-522, supra) and his interests which will be affected by this proceeding. He has also authorized Kudzu to represent him in this proceeding.
In addition, it appears from the petition and affidavit that Kudzu's attorney, fir. Payne, is authorized to represent it in this proceeding.
The Kudzu petition alleges that the operation of Shearon Harris will result in a number of " adverse impacts" (Petition, at 3-5) and would " contravene the anti-trust laws of the United States..." (Petition, at 3). These " impacts" include "the long-term somatic and genetic health effects of radiation releases from the facility during normal operation and from the uranium fuel cycle," (Petition, at 4), " impacts on the cost-benefit balance of a serious accident" (Id); "the ability of the Applicants, and local and state officials to supplement radiological plans;" (Id.), construction defects, (Id. at 5) and Applicant's manage-ment competence.
(Id_.) While anti-trust matters are not within the scope of this proceeding (see Fed. M. notice, supra), the Staff believes that the other " adverse impacts" are sufficiently related to the subject matter of the proceeding to satisfy the aspects requirement of 10 C.F.R.
52.714(a)(2).
Based on the foregoing, the Staff believes that Kudzu's request to intervene on behalf of its members should be granted.
With respect to Kudzu's request for copies of the FSAR and the ER, as previously indicated, these documents are available for public inspection at the LPDR at the Wake County Library.
Should Kudzu desire copies of these documents for its own use, it should direct its request to the Applicants. The Staff believes that Kudzu's request that the deadline for filing contentions be extended "until 30 days after delivery...of those reports" (Petition, at 6), is premature and should
be denied. As stated in the Federal Register notice, supra, and 10 C.F.R. 5 2.714(b), contentions are to be filed not later than fifteen (15) days prior to the first prehearing conference in the proceeding.
Although no date has yet been set for the first prehearing conference, petitioners are now on notice that contentions must be filed not later than 15 days before that date.
In the Staff's view, the request for documents by Kudzu provides no basis for altering the time period for filing contentions.
F.
Wells Eddleman On February 25, 1982, Wells Eddleman timely filed a petition for leave to intervene (Petition). Mr. Eddleman states that he lives and works in Durham, N.C., which is within 50 miles of the plant site (Petition, at 2) and that his interests will be adversely affected by operation of Shearon Harris.
(M.,at3).
In his petition, Mr. Eddleman requests copies of the FSAR and ER (Petition, at 5), "all proposed technical specifications and any draft ofanoperatinglicense,"(M.,at7)andthathebeprovided"aminimum of 30 days" from the tine of receipt of such documents to formulate l
contentions.
(H.) Mr. Eddleman also requests that the NRC deliver to the LPDR copies of "all documents missing from the files in the Wake l
County library relating to the Shearon Harris Nuclear Power Plant."
(M. ) He also requests financial assistance for his participation in this proceeding.
(H. )
The Staff believes that Mr. Eddleman has established his standing to intervene in this proceeding, based on his residence within the geographic " zone of interest" (North Anna, ALAB-522, supra) and the I
1 statements in the petition alleging how his interest will be adversely affected by operation of Shearon Harris.
Mr. Eddlenan has enumerated many " aspects of the subject matter" which he wishes "to litigate in this proceeding" (Petition, at 4-5).
With the exception of " restraint of trade...and other monopoly issues,"
(Petition, at "4A"),E these " aspects" appear to be sufficiently related to the subject matter of this proceeding to satisfy the aspects requirement of 10 CFR 9 2.714(a)(2). Accordingly, Mr. Eddleman's petition for leave to intervene should be granted.
The request by Mr. Eddleman for copies of the FSAR and ER for his personal use should be directed to the Applicants. The Staff has made these dccuments available in the LPDR.
Concerning Mr. Eddleman's state-ment about documents missing from the LPDR, Staff counsel has contacted the NRC LPDR Branch and has confirmed that copies of the Preliminary Safety Analysis Report (PSAR), and " acceptance review copies" of the FSAR and ER were available in the CPDR on February 4,1982, when Mr. Eddleman clains such documents were not at the LPDR. According to the LPDR Branch, copies of the " accepted" or final version of the FSAR and ER were sent to the LPDR on February 4,1982 and were received there on February 8, 1982. Staff counsel understands from the LPDR Branch that Mr. Eddlenan did not find a January 1971 petition for leave to intervene at the LPDR, but was advised to call the toll-free "800" telephone number of the LPDR Branch if he desired a copy of that document or any others which he could not
--12/ Such issues appear to relate to anti-trust aspects of Shearon Harris operation, which are beyord the scope of this proceeding.
find at the LPDR. According to the LPDR Branch, he has not contacted them for a copy of any document. The Staff has not prepared, at this early stage of the proceeding, other documents referred to by Mr. Eddleman as " missing," such as the proposed operating license and technical specifications. Accordingly, such documents would not be found in the LPDR.
In any event, as previously explained, a request such as Mr. Eddleman's, for copies of the FSAR and EP, for his personal use, do not, in the Staff's view, warrant altering the deadline to be established for filing contentions.
Mr. Eddlenan's request for financial assistance must be denied for the reasons previously stated in Section B.
G.
Daniel F. Read By letter dated February 17, 1982, David F. Read timely petitioned for leave to intervene.
Mr. Read's address, as stated in his petition, is in Chapel Hill, North Carolina "about 18 miles from the plant site..."
(Petition, at 1.) However, in his petition he states that he doesn't own any real property there (Id_.), but his " family home" is there, and he has rented housing there since 1977.
(Id.) According to his petition, operation of Shearon Harris would adversely affect his interests due to effects enumerated therein.
The Staff believes that Mr. Read's residence within the geographic l
" zone of interest" (see North Anna, ALAB-522, supra), when coupled with the interests he has alleged in the petition, establish his standing to intervene in this proceeding.
l The listing by Mr. Read of the specific issues which he wishes to contest (Petitica at 1) contains several issues which are within the l
l l
scope of this proceeding. These issues include management competence of CP&L, need for power, offsite monitoring plans and waste storage capacity.
(Id.) The issue of " proposed used of Shearon Harris as an AFR [Away From Reactor) fuel storage facility" (Ld.) appears to be beyond the scope of this proceeding.
In sum, Mr. Read has identified with particularity an aspect of the proceeding in which he wishes to intervene as required by 10 CFR 5 2.714(a)(2). Since he also satisfies the standing requirements of 10 CFR $ 2.714, his petition for leave to intervene should be granted.
However, since Mr. Read has also petitioned for leave to intervene on behalf of CHANGE, in his capacity as CHANGE's President, and he is one of the nembers of CHANGE on whose behalf CHANGE is seeking to intervene, it may be appropriate to consolidate Mr. Read's separate petition to intervene in his individual capacity and CHANGE's petition.
10 CFR 2.715a.
H.
Richard D. Wilson, M.D.
In a letter dated February 25, 1982, Richard D. Wilson, M.D. filed a timely petition for leave to intervene (Petition) and requested a hearing in this proceeding. He states that because:
"I live and work in Apex, North Carolina, which is seven miles from the Shearon Harris construction site, my interest will be affected in several ways by the outcome of the proceeding." (Petition, at 1).
According to the petition, Dr. Wilson's interest will be affected by this proceeding 1) because of his medical practice, which in the event of an accident, could result in his having "to choose between leaving myself or staying to take care of nty patients (Id.); 2) an
. accident could result in damage to or loss of his commercial orchard (H.) and 3) the possibility of an accident exists as a result of doubts about CP&L's " commitment to nuclear safety..." (M.). The Staff believes that this statement, when coupled with Dr. Wilson's residence within the geographic " zone of interest" (North Anna, ALAB-522, supra) establish his standing to intervene in this proceeding.
Dr. Wilson does not explicitly describe the a;pects of the proceedino in which he wishes to intervene. However, his description of the way in which his interests would be affected raises issues (such as the adequacy of emergency planning and CP&L's management conpetence) which are sufficiently related to the subject matter rf this proceeding to satisfy the aspects requirement of 10 CFR 9 2.714(a)(2).
3ased on the foregoing, the Staff believes that Dr. Wilson's petition satiifies the requirements of 10 CFR f 2.714 and should be granted.
III.
CONCLUSION For the reasons stated above, the Staff concludes that the petition of CANP is deficient and, in its present form, must be 'enied. The d
petitions of CHANGE, the Council, ELP, Kudzu, Wells Eddleman, Daniel Read, and Richard Wilson, M.D. satisfy the requirements of 10 C.F.R.
6 2.714 and should be granted.
l Respectfully submitted,
% W Md Marjorie Ulman Rothschild Counsel for NRC Staff Dated at Bethesda, Maryland this 9th day of March, 1982 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CAROLINA POWER AND LIGHT COMPANY Docket Nos. 50-400
)
50-401 (Shearon Harris Nuclear Power Plant, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO PETITIONS FOR LEAVE TO INTERVENE" in the above-captioned 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 9th day of March, 1982:
- James L. Kelley, Chairman Mr. Travis Payne, Esq.
Atomic Safety and Licensing Board Panel 723 W. Johnson St.
U.S. Nuclear Regulatory Commission P.O. Box 12643 Washington, D.C.
20555 Raleigh, N.C.
27605
- Mr. Glenn 0. Bright Daniel F. Read, President Atomic Safety and Licensing Board Panel CHANGE U.S. Nuclear Regulatory Commission P.O. Box 524 Washington, D.C.
20555 Chapel Hill, N.C.
27514
- Dr. James H. Carpenter Daniel F. Read l
Atomic Safety and Licensing Board Panel 100-B Stinson St.
U.S. Nuclear Regulatory Commission Chapel Hill, N.C.
27514 l
Washington, D.C.
20555 Patricia T. Newman, Co-Coordinator Wells Eddleman Slater E.
Newman, Co-Coordinator 325 E. Trinity Ave.
Citizens Against Nuclear Power Durham, N.C.
27701 2309 Weymouth Ct.
Raleigh, N.C.
27612 George Jackson, Secretary Environmental Law Project Richard D. Wilson, M.D.
School of Law, 064-A 729 Hunter St.
University of North Carolina Apex N.C.
27502 Chapel Hill, N.C.
27514 l
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2-John Runkle, Executive Coordinator Docketing and Service Section Conservation Council of North Carolina Office of the Secretary 307 Granville Rd.
U.S. Nuclear Regulatory Comission Chapel Hill, NC 27514 Washington, D.C.
20555 George F. Trowbridge, Esq.
Dr. Phyllis Lotchin Thomas A. Baxter, Cse,.
108 Bridle Run John H. O'Neill, Jr., Esq.
Chapel Hill, North Carolina 27514 Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
Washington, D.C. 20036
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Comission Washington, D.C.
20555 24a$grikMc/
Marjorie Rothschild Counsel for NRC Staff l
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e
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