ML20041F077

Response Opposing La Consumer League 820224 Submittal Re Litigable Interest in Evacuation Plans.Aslb Already Properly Determined Scope of League Interest.No New Info Presented to Justify Different Ruling

ML20041F077
Person / Time
Site:	River Bend
Issue date:	03/11/1982
From:	Conner T, Wetterhahn M CONNER & WETTERHAHN, GULF STATES UTILITIES CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8203160168
Download: ML20041F077 (9)

Text

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a C%IJD UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I

Before the Atomic Safety and Licensing Board' In the Matter of )

)

Gulf States Utilities Company, ) Docket No. 50-458 et al. ) 5 '5^

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) '

(River Bend Station, Units 1 and 2) )

1. eg MCp40 9 APPLICANT'S OPPOSITION TO SUBMISSION 2 gy3 -

BY LOUISIANA CONSUMER'S LEAGUE, INC.

REGARDING LITIGABLE INTEREST IN

{# /Sgg[7 p EVACUATION PLANS s Preliminary Statement  % gg4 In its " Memorandum and Order Ruling on Petitions to Intervene" (" Memorandum and Order") of February 10, 1982, the Atomic Safety and Licensing Board (" Licensing Board") ruled that one of the petitioners for intervention in this proceeding, Louisiana Consumer's League, Inc. ("LCL") had failed to establish its interest in the evacuation of low and moderate income persons, 23 pleaded in Item III-4 of the LCL petition for intervention. b By letter dated February 24, 1982, 2/ LCL submitted an affidavit from John F. Robbert, the President of LCL, and affidavits from other persons stating their desire to have

_1/ Memorandum and Order at p. 8.

_2/ Counsel for Applicant did not receive the letter and attachments until March 4, 1982.

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F203160160 820311 PDR ADDCK 05000458 0

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LCL represent their interests in this proceeding concerning I

safe evacuation in the event of a major accident at the River Bend facility.- The affidavits attempt to establish a nexus between the concerns of certain individuals living outside the plume exposure EPZ regarding evacuatio.. and LCL's organizational concerns in this area.

Applicant Gulf States Utilities Company, et al.

(" Applicant") opposes this submission on the ground that the Licensing Board has already properly determined the scope of LCL's litigable interests. LCL has not presented any new information to justify a different ruling.

Specifically, the form affidavits it proffers fail to demonstrate a litigable interest either on the part of the individual affiants or LCL as an organizational representative. Accordingly, the Licensing Board should deny LCL's request to reconsider its, prior ruling.

Argument The submittal by LCL constitutes, in effect, a request for the Licensing Board to reconsider its earlier decision.

As the Appeal Board noted in the Marble Hill proceeding, ordinarily "[t]he unreserved decision on a question of law or fact made during the course of litigation settles that question for all subsequent stages of the suit" as the law of the case. -3/ No basis has bean shown here by way of the

_3/ Public Service Company of Indiana, Inc., (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 NRC 253, 259 (1978).

affidavits submitted by LCL for reconsidering the Licensing Board's prior determination that LCL lacks any legal interest in the evacuation of low and moderate income persons.

In any event, the affidavits fall far short of demonstrating the standing of LCL or the individual affiants to litigate issues pertaining to evacuation plans. As the Licensing Board observed in its Order, where the prospective intervenor is an organization, it must establish standing through its individual members. The organizational petitioner must identify specific member:, and demonstrate how their particular interest may be affected by the outcome of the proceeding. -4/ Since organizational standing is wholly derivative in nature, a petitioner such as LCL can litigate only those issues which its individual members would have standing to raise.

In this respect, the recent submission by LCL is defective for three reasons. First, none of the three affidavits submitted to demonstrate the requisite " injury in fact" or interest " arguably within the zone of interests" b is proffered by an individual who is a member of LCL. The

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4/ Memorandum and Order at p. 3-4. See also Houston Lighting & Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 390 (1979); Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-79-18, 9 NRC 728 (1979); Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73 (1979).

_5/ Memorandum and Order at p. 3.

mere statement by the affiants that they authorize LCL to represent their interests in this proceeding is clearly insufficient. While an organization may establish standing on the basis of its members' interests, neither the Commission's rules on intervention nor the judicial concepts of standing they incorporate permit an organization to act as a self-appointed private attorney general to represent the broad interests of non-members whether " low-income" or not.

Second, each of the affidavits merely states a generalized " concern" about safe evacuation in the event of an accident. This asserted concern is clearly an inadequate basis for standing (and for LCL's standing derivatively).

The requirements for emergency planning under the Commission's Rules are clear that "the plume exposure pathway EPZ for nuclear power plants shall consist of an area about 10 miles (16 km) in radius," give or take minor adjustments as to the exact size and configuration. See 10 C.F.R.

S50.47 (c) (2) .

Accordingly, each of the affl_ ants, who live "about 20 miles" away from the River Bend facility, lacks the requisite personal stake in evacuation planning necessary to show any possible personal injury that would give rise to standing. -6/ Moreover, any attempt by LCL to litigate evacuation planning with respect to these affiants would necessarily involve an impermissible attack upon 10 C.F.R.

_6/ Memorandum and Order at p. 3.

t

S50.47 (c) (2) , which sets the 10-mile standard for the plume

. Emergency Planning Zone ("EPZ"). Other licensing boards have struck down attempts to significantly expand the 10-mile EPZ as suggested by petitioners. -7/ Finally, since NRC regulations do not purport to require evacuation beyond the roughly 10-mile plume exposure EPZ, the affiants have not asserted an interest " arguably within the zone of interests" protected by emergency planning regulations in general.

Third, the mere expression of a " concern" regarding safe evacuation is, in any event, insufficient to establish standing. The Commission settled this question in Edlow International Company (Agent for the Government of India on Application to Export Special Nuclear Material), CLI-76-6, 3 NRC 563, 572 (1976), where it quoted with approval a decision by the Supreme Court denying standing in Sierra Club v.

Morton, 405 U.S. 727, 739 (1972):

[A] mere " interest" in a problem, no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization " adversely affected" or

" aggrieved" within the meaning of the APA.

Since the affiants have not established that they fall within the ambit of the regulations regarding evacuation planning,

_7/ South Carolina Electric and Gas Company (Virgil C.

Summer Nuclear Station, Unit 1) , Docket No. 50-395,

" Memorandum and Order" (September 14, 1981) (slip opinion at 5). See also Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3),

Docket Nos. 50-361 and 50-362 OL, " Order" (September 14, 1981) (slip opinion at 9-10) .

it necessarily follows that any expressed concern over any possible personal impact is so " speculative" -8/ that it cannot satisfy the injury in fact requirements for standing.

In simple terms, these affiants (and LCL derivatively) have failed to "show a distinct and palpable harm" to themselves.

Transnuclear, Inc., CLI-77-24, 6 NRC 525, 531 (1977).

In the same vein, the affidavit of John S. Robbert, President of LCL, merely expresses LCL's organizational concerns which, no matter how sincerely pursued, are no substitute for the concrete injury in fact necessary for l

l standing. LCL cannot represent the interests of members who t

l themselves lack standing and certainly cannot represent the interests of non-members of the general public.

Conclusion For the reasons more fully discussed above, neither LCL p nor the affiants it purports to represent have demonstrated standing to pursue issues pertaining to evacuation planning for the River Bend facility. Accordingly, the Licensing Board should not depart from its prior ruling of February 10,

_8/ See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 43 (1976); Arlington Heights

v. Metropolitan Housing Development Corp., 429 U.S. 252, 262 (1977).

1982 that LCL has failed to establish its member's interests, if any, in this area.

Respectfully submitted CONNER & WETTERHAHN Troy B. Wonner, Jr.

4/

Mark J. Wetterhahn Suite 1050 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 202/833-3500 Counsel for the Applicants March 11, 1982 O

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

Gulf States Utilities Company, ) Docket No. 50-458 et al. ) 50-459

)

(River Bend Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Opposition to Submission by Louisiana Consumer's League, Inc. Regarding Litigable Interest in Evacuation Plans," in the captioned matter have been served upon the following by deposit in the United States mail this lith day of March, 1981.

Alan S. Rosenthal, Esq. Docketing and Service Branch Atomic Safety and Licensing Office of the Secretary Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Lee S. Dewey, Esq.

B. Paul Cotter, Jr. Counsel for NRC Staff Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Mr. James E. Booker Washington, D.C. 20555 Gulf States Utilities Company Dr. Forrest J. Remick P.O. Box 2951 Atomic Safety and Licensing Beaumont, Texas 77701 Board Panel U.S. Nuclear Regulatory Linda B. Watkins, Esq.

Commission Staff Attorney Washington, D.C. 20555 State of Louisiana Department of Justice Dr. Richard F. Cole 7434 Perkins Road Atomic Safety and Licensing Suite C Board Panel Baton Rouge, LA 70808 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Gretchen R. Rothschild, Esq.

1659 Glenmore Avenue Baton Rouge, LA 70808 Doris Falkenheiner, Esq.

.535 North 6th Street Baton Rouge, LA 70802 Mar Wetterhahn