ML20042B712
| ML20042B712 | |
| Person / Time | |
|---|---|
| Site: | Skagit |
| Issue date: | 03/19/1982 |
| From: | Thomsen F PERKINS, COIE (FORMERLY PERKINS, COIE, STONE, OLSEN, PUGET SOUND POWER & LIGHT CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8203250563 | |
| Download: ML20042B712 (14) | |
Text
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cggggen T2 E' 23 P1 :5 3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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PUGET SOUND POWER & LIGHT
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Docket Nos. STN 50-522 COMPANY, et al.
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STN 50-523
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(Skagit/Hanford Nuclear
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Proje,ct, Units 1 and 2)
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APPLICANTS' ANSWER IN OPPOSITION TO PETITION OF THE NATURAL RESOURCES DEFENSE COUNCIL, INC. FOR LEAVE TO INTERVENE (March 19, 1982)
I.
Introduction On February 5, 1982, a notice was published in the Federal Register which recited that Puget Sound Power & Light Company, Portland General Electric Company, Pacific Power & Light Com-pany, and The Washington Water Power Company ( Applicants) have amended their application for construction permits for the Skagit Nuclear Power Project to change the site of the project from Skagit County, Washington to the Hanford Reservation in Benton County, Washington, and to change the name of the project to Skagit/Hanford Nuclear Project.
47 Fed. Reg. 5554 (1982).
This notice also stated that a hearing on the amended application would be held and-invited any person whose interest Ps g
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may be affected by the proceeding and who desired to partici-pate as a party to the proceeding to file a petition to inter-vene in accordance with the provisions of 10 C.F.R. S 2.714 by March 8, 1982.
Pursuant to this notice, the Natural Resources Defense Coun cil, Inc. (NRDC) filed on March 4, 1982 a " Petition of the Natural Resources Defense Council, Inc. for Leave to Intervene" (NRDC Petition).
NRDC asserts the following points to establish its interest in the proceeding (NRDC Petition, pp. 2-3):
It has a nationwide membership dedicated to the defense and preservation of the human environment and natural resources of the United States and approximately 1500 of it members live in Oregon, Washington, Idaho, and Montana.
Its goal in the northwest is to prevent unneces-sary construction of coal and nuclear plants by promoting the development of cost-effective, en-vironmentally preferable alternatives; It seeks to intervene on its own behalf and on behalf of its members who live in the Pacific Northwest, stating that its members live, work, consume electricity, and enjoy recreational activities in areas that will be directly and indirectly affected by the construction of the Skagit/Hanford Nuclear Project; and Its members will be harmed by increased elec-tricity costs, increased fish mortality, chemical and thermal pollution, and decreased recreational saf ety on the Columbia River, and risks f rom catastrophic accidents and disposal of radio-active wastes.
NRDC contends that issuance of construction permits will result in the adverse effects alleged above and various adverse economic effects.
NRDC lists four individual members who have specifically authorized URDC to intervene on their behalf.
(NRDC Petition,
- p. 4.)
These members reside in Seattle, Mercer Island, and Pullman, Washington and Lake Oswego, Oregon.
It is Applicants' position that NRDC has failed to meet the requirements of 10 C.F.R. S 2.714 and Section 189a of the Atomic Energy Act of 1954, as amended, in that it has failed to allege a sufficient basis for standing to intervene as a matter of right on its own behalf or on behalf of its members, and that an insufficient basis is established for the grant of discretionary intervention.
II.
Argument A.
The NRDC Petition does not provide a sufficient basis for standing of NRDC to intervene as a matter of right on its own behalf.
The Commission's regulations establish the requirements for intervention in NRC proceedings and set forth specifically the criteria for establishing standing.
The petitioner is required to set forth with particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, in-cluding the reasons why petitioner should be permitted to intervene, with particular reference to the factors in paragraph (d) of this section, and the specific aspect or aspects of the subject matter of the pro-ceeding as to which petitioner wishes to intervene."
10 C. F.R. S 2.714(a)(2). _.
Paragraph (d) of S 2.174 requires the petitioner to state the nature of the petitioner's right under the Atomic Energy Act to be made a party to the proceeding, the nature and extent of the petitioner 's property, financial or other interest in the pro-ceeding, and the possible effect of any order which may be entered in the proceeding on the petitioner 's interest.
The Commission has held that, in determining whether a per-son has an interest which may be af fected by a proceeding,
" con tempor aneous judicial concepts of standing should be used."
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614 (1976);
Northern States Power Co. (Tyrone Energy Park, Unit 1),
CLI-80-36, 12 NRC 523, 526, 527 (1980).
To have standing, a person must allege that he will be injured in fact as a result of the proceeding and must allege that his interests fall with-ia the zone of interests protected by applicable statutes.
Pebble Springs, supra, 4 NRC at 613-14.
NRDC states that its interest is the " defense and preserva-tion of the human environment and the natural resources of the United States" and prevention of " unnecessary construction of coal and nuclear power plants by promoting the development of cost-effective, environmentally preferable alternatives."
NRDC Petition, p.
2.
While the petition lists alleged harm to its members (page 3), it lists no harm to NRDC as an entity but _
rests its basis for standing on its own behalf solely cn the general statements quoted above.
The Supreme Court, however, has rejected such grounds for standing, reasoning that:
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.
The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural her-itage from man's degradations.
But if a 'special interest' in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide 'special interest' organization however small or shor t-liv ed.
And, if any group with a bona fide 'special interest' could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so."
Sierra Club v. Morton, 405 U.S. 727, 739-40 (1972).
This holding is applied in NRC proceedings.
See, for example, Pebble Springs, supra, 4 NRC at 613; Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station),
ALAB-328, 3 NRC 420, 421-22 (1976); and Nuclear Engineering Co.
(Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 742 (1978).
It is clear that NRDC's mere organizational interest in environmental problems and nuclear power does not provide a basis for standing on its own behalf.
B.
The NRDC Petition does not provide a sufficient basis for NRDC to represent the interests of all of its members or the identified individual members.
An organization whose members are injured may represent those members in NRC proceedings.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976).
Standing in this repre-sentative capacity, however, turns on "whether the organization has established actual injury to any of [its].
. members."
Simon v. Eastern Kentucky Welf are Rights Organization, 426 U.S.
26, 40 (1976).
In regard to the unnamed 1,500 members which NRDC seeks to r e pr esen t, the alleged harm is to economic interests arising 1
out of electricity costs and other generalized adverse effects on the Columbia River and from catastrophic accidents and disposal of radioactive wastes.
NRDC Petition, p. 3.
As the Appeal Board has pointed out:
lit is well established that the economic interest of a r a tepayer is not sufficient to allow standing to intervene as a matter of right since concern about rates is not within the scope of interests sought to be protected by the Atomic Energy Act Kansas Gis_& Electri_c Co. (Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122, 128 (1977); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1420-21 (1977); Detroit Edison Co. (Greenwood Energy Center, Units 2 and 3), ALAB-376, 5 NRC 426, 428 (1977); Public Service Co. of Oklahoma (Black Fox Nuclear Power Station, Units 1 and 2), LBP-77-17, 5 NRC 657, 659(1977).
Nor is such in ter es t within the zone of interests protected by the National Environmental Policy Act.
Watts Bar, supra; Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),
ALAB-333, 3 NRC 804, 806 (1976).
the test is whether a cognizable interest of the petitioner might be adversely affected if the pro-ceeding has one outcome rather than another.
And, to repeat, no such interest is to be presumed.
There must be a concrete demonstration that harm to the petitioner (or those it represents) will or could flow from a result unfavorable to it--whatever that result might be."
(Emphasis added).
Nuclear Engineering Co.,
su pr a, / NRC at 743.
Since NRDC has failed to identify its 1,500 members and failed to specify the personal interests of each member that might be harmed by a possible outcome of this proceeding, it is impossible to verify whether these members have standing to intervene in this proceeding.
Consequently, NRDC has not presented the requisite showing to enable it to intervene in a representative capacity on behalf of these unnamed members.
See Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 389-97 (1979).
NRDC does name four individual members and states that these individuals have authorized NRDC to intervene on their behalf.
NRDC Petition, p. 4. These individuals are identified as ratepayers residing in Seattle, Mercer Island, and Pullman, Washington and Lake Oswego, Oregon.
The NRDC Petition does not particularize the personal interests of each of chese individ-uals that might be harmed by a possible outcome of this proceeding. - - - -___________ _ __
Seattle and Mercer Island are approximately 150 air miles from the site; Lake Oswego is approximately 170 air miles dic-tant; and Pullman is approximately 110 air miles from the site.2 These distances are f ar beyond the 40 to 50 mile radius which the NRC has utilized as the outer boundary for determining whether a person may qualify for standing based upon location of residence and allegations of injury from construction and operation.
Watts Bar, supra, 5 NRC at 1421 n.4; Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 190 (1973); Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 443-44 (1979).
As the Licensing Board stated in the Perry proceeding,
. standing based on residence beyond a 50 mile limit is not a sufficient interest to establish stand-ing in this proceeding.
The further a person lives from a plant the weaker the claim to adjudicatory standing and the more similar that person's objections to the interests of all citizens.
Those general interests need not be protected in litigation.
They can be pursued in rulemaking proceedings before admin-istrative agencies and lobbying before Congress."
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 NRC 175, 178-79 (1981).
The residences of the four named NRDC members are too far removed from the site to meet the standing requirements to be admitted as a matter of right into this proceeding.
Since the 2 Distances approximated from the Rand McNally Road Atlas, United States, Canada, Mexico, pp. 84Z85, 98-99 (1979).
NRDC Petition has not demonstrated that the named members have an interest which may be af fected by this proceeding, NRDC has no standing to intervene on behalf of these members.
C.
NRDC should not be granted discretionary in te rv en tion.
The NRDC Petition attempts to establish standing to intervene as a matter of right and does not request discretionary intervention.
Nevertheless, the question arises as to whether NRDC should be admitted as a party as a matter of the Board's discretion.
The Commission in the Pebble Springs decision listed six f actors which should be considered in deciding whether to grant or deny discretionary intervention:
(a)
Weighing in favor of allowing intervention --
(1)
The extent to which the petitioner 's par-ticipation 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 in the proceeding.
(3)
The possible ef fect of any order which may be entered in the proceeding on the peti-tioner's interest.
(b)
Weighing against allowing intervention --
(4)
The availability of other means whereby petitioner's interest wi?1 be protected.
(5)
The extent to which the petitioner 's interest will be represented by existing parties.
l (6)
The extent to which petitioner's participa-tion will inappropriately broaden or delay the proceeding.
I Pebble Springs, supra, 4 NRC at 616.
In regard to factor (a)(1), the NRDC Petition in paragraphs 10 and 11 states that NRDC Will present evidence regarding the need for power and alternatives to the proposed project and cross-examitie applicant's witnesses and present evidence "[t]o the extent that the Applicant
. contends that the Skagit/Hanford Nuclear Project is the most cost-effective and envir onmentally acceptable way to meet electrical energy needs in the Northwest region However, NRDC has not specified the nature of the evidence it desires to present, has not stated whether it intends to offer any expert witnesses, and has not identified any other specific means by which it might contribute to this proceed-ing.
Since the burden is upon the petitioner to demonstrate an ability to contribute to a proceeding, Nuclear Engineering Co.,
supra, 7 NRC at 745, this f actor must weigh heavily against the discretionary intervention of NRDC.
In regard to factors (a)(2) through (b)(5), NRDC has not demonstrated any cognizable interest of either itself or its identified members which may be affected by this proceeding.
Although the identified members are designated as ratepayers, the interests of ratepayers are not within the zone of inter-ests protected by either the Atomic Energy Act or the National J
Environmental Policy Act.
See n.1, supra.
Consequently, this interest is not entitled to any deference in determining whether NRDC should be afforded discretionary intervention.
See Cleveland Electric Illuminating Co._,
supra, 14 NRC at 179; Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),
LBP-78-ll, 7 NRC 381, 388, aff'd, ALAB-470, 7 NRC 473 (1978).
NRDC has indicated its desire to litigate in general the
!.ssues of need for power and alternatives to the plant.
Par-ticipation by NRDC under these circumstances would inevitably delay this proceeding.
Consequently, factor (b)(6) cannot be weighed in favor of discretionary intervention, and such inter-vention should not be granted.
III.
Conclusion NRDC has attempted to intervene in this proceeding by arguing that it has an organizational interest in the subject natter of this proceeding, that unidentified members will be injured by construction and operation of the plant, and that four identified members who reside more than 100 miles from the plant are ratepayers.
All of these arguments have been con-sistently rejected by the NRC as a basis for standing and in te rv en tion.
NRDC is no stranger to Nuclear Regulatory Commission pro-ceedings, and it must be assumed that the NRDC Petition was prepared with full knowledge of NRC requirements.
The NRDC - - - -
Petition wholly f ails to meet those requirements.
NRDC should be denied admission as a natter of right and should not be admitted as a matter of discretion.
Dated:
March 19, 1982 Respectfully submitted, PERKINS, 00IE, STONE, OLSEN & WIL.IAMS g
'I By F. Theodore Thomsen Attorneys for Applicants 1900 Washington Building Seattle, Washington 98101 (206) 682-8770 Of Counsel:
David G. Pawell Steven P.
Frantz Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 (202) 862-8400 -.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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PUGET SOUND POWER & LIGHT COMPANY, )
DOCKET NOS.
et al.
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STN 50-522 (Skagit/Hanford Nuclear Proj ect,
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STN 50-523 Units 1 and I=
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CERTIFICATE OF SERVICE I hereby certify that the following:
APPLICANTS' ANSWER IN OPPOSITION TO PETITION OF THE NATURAL RESOURCES DEFENSE COUNCIL, INC. FOR LEAVE TO INTERVENE (March 19, 1982) in the above-captioned proceeding have been served upon the persons shown en the attached list by depositing copies thereof in the United States mail on March 19, 1982 with proper l
postage affixed for first class mail.
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DATED:
March 19, 1982
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^
F.
Theodore Thomsen Attorney for Puget Sound Power &
Light Company 1900 Washington Building Seattle, Washington 98101 I
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DATg March 19, 1982 COMMISSIOT INTERESTID STATES AND COUNTIES (Cent.)
Secretary of the Commission Frank W. Ostrander, Jr., Esq.
Docketing and Service Branch Oregon Assistant Attorney General U.S. Nuclear Regulatory Commission 500 Pacific Building Washington, D.C. 20555 520 S.W. Yamhill Portland, OR 97204 LICENSING BOARD Bill Sebero, Chairman Judge John F. Wolf, Chairman Benten County Commissioner Atomic Safety and Licensing Board P.O. Box 470 3409 Shepherd Street Prosser, WA 99350 Chevy Chase, MD 20015 APPLICANTS Dr. Frank F. Hooper, Member Chairman of Resource, Ecology, F. Theodore Thomsen, Esq.
Fisheries and Wildlife Perkins, Cole, Stone, University of Michigan Olsen & Williams School of Natural Resources 1900 Washington Building Ann Arbor, MI 48109 Seattle, WA 98101 Gustave A. Linenberger, Member David G. Powell, Esq.
Atomic Safety and Licensing Board Lowenstein, Newman, Reis & Axelrad U.S. Nuclear Regulatory Commission 1025 Connecticut Avenue N.W.
Washington, D.C.
20555 Washington, D.C.
20036 APPEAL BOARD James W. Durham, Esq.
Senior Vice President Alan S. Rosenthal, Chairman General Counsel and Secretary Atomic Safety and Licensing Portland General Electric Company Appeal Board 121 S.W. Salmon Street U.S. Nuclear Regulatory Commission Portland, OR 97204 Washington, D.C. 20555 Warren G. Hastings, Esq.
Dr. John H. Buck, Member Associate Corporate Counsel Atomic Safety and Licensing Portland General Electric Company Appeal Board 121 S.W. Selmon Street U.S. Nuclear Regulatcry Commission Portland, OR 97204 Washington, D.C.
20555 Richard D. Bach, Esq.
Michael C. Farrar, Member Steel, Rives, Boley, Fraser & Wyse Atomic Safety and Licensing 2300 Georgia Pacific Building Appeal Board 900 S.W. Fifth Avenue U.S. Nuclear Regulatory Commission Portland, OR 97204 Washington, D.C. 20555 OTHER NRC STAFF l
Canadian Consulate Genera 3 Richard L. Black, Esq.
D'onald Martens, Consul Counsel for the NRC Staff 412 Plaza 600 U.S. Nuclear Regulatory Commission 6th and Stewart Street Office of the Executive Legal Seattle, WA 98101
. Director Washington, D.C.
20555 INTERESTED STATES AND COUNTIES Washington Energy Facility Site Evaluation Council Ralph Cavanagh, Esq.
Nicholas D. Lewis, Chairman Natural Resources Defense Mail Stop PY-ll Council, Inc.
Olympia, WA 98504 25 Kearny Street San Francisco, CA 94108 Kevin M. Ryan, Esq.
Washington Assistant Attorney General Temple of Justice Olympia, WA 98504 l
l 3/15/82
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