ML20042B729

Answer Opposing Natl Wildlife Federation & or Environ Council 820308 Petition to Intervene.Petitioners Failed to Allege Sufficient Basis for Standing to Intervene. Certificate of Svc Encl

ML20042B729
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 8203250592
Download: ML20042B729 (14)

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22 D'23 ,ot cp UNITED STATES OF AMERICA '

NUCLEAR REGULATORY COMMISSION -

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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?UGET SOUND POWER & LIGHT ) Docket Nos. STN 50-522 COMPANY, et al. ) STN 50-523

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(Skagit/Hanford Nuclear ) g Project, Units 1 & 2) ) p ^$

APPLICANTS' ANSWER IN OPPOSITION TO PETITIO TO INTERVENE BY THE NATIONAL WILDLIFE '

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FEDERATION AND OREGON ENVIRONMENTAL COUNCIL -9 1 (March 19, 1982) &a el4R,9 4 79g g 7 O

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Introduction s

9 F3 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 Company, and The Washington Water Power Company (Applicants) have amended their application for construction permits for the Skagit Nuclear Power Project to change the site l of the project from Skagit County, Washington, to the Hanford Reservation in Benton County, Washington, and to change the name of the project to the 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 may be affected by the proceeding to file a petition to intervene in accordance with the provisions of 10 C.F.R. $ 2.714 by March 8, 1982.

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Pursuant to this notice, the National Wildlife Federation and the Oregon Environmental Council (hereinafter jointly termed "NWF") filed on March 8, 1982, a " Petition to Intervene" (hereinafter NWF Petition).

The National Wildlife Federation describes itself as "the nation's largest private conservation organization, [which] is dedicated to the wise use and conservation of the nation's natural resources." NWF Petition, p. 1. Similarly, the Oregon Environmental Council is described as "a broad-based coalition of groups and individuals, organized to protect the environment of the state of Oregon." NWF Petition, p. 2.

Each organization is described as having numerous members'

, .in the Pacific Northwest. NWF Petition, pp. 1-2.

Additionally, the NWF Petition identifies six members who live in Portland, Oregon, or its environs, and who allegedly have authorized NWF to represent their interests. NWF Petition,

p. 2,n.*.

NWF has alleged that construc' tion and operation of the Skagit/Hanford Nuclear Project would impact petitioners' l

interests as a result of the following:

Increases in the levels of radiological, chemical and thermal pollution of the air and water.

Increases in the shipment of radioactive materials, thereby increasing the risks to environmental amenities used by petitioners' members.

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Expansion of the volume of radioactive wastes requiring storage, thereby threatening the long-term health of the environment and petitioners' members' use thereo f .

Encouragement of the use of hydropower for peaking purposes, to the detriment of wildlife resources of the Columbia River used by petitioners' members.

Increases in the risk of catastrophic nuclear accidents, thereby endangering the environment and the health of petitioners' members.

Limit the funds available for more environmentally acceptable alternatives and increase the cost of electricity to the ratepayer members.

NWF Petiti.on, pp. 2-4.

It is Applicants' position that NWF has failed to meet the requirements of 10 C.F.R. { 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 NWF Petition does not provide a sufficient basis for standing of NWF 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 thu proceeding, how that interest may be af fected by the results of the proceeding, including 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 proceeding as to which petitioner wishes to intervene." 10 C.F.R.

$ 2.714(a)(2).

Paragraph (d) of 2.714 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 proceeding, and the possible ef fect of any order which may be entered in the proceeding on the petitioner's interest.

The Commission has held that, in determining whether a person has an interest which may be affected by a proceeding, "c3ntemporaneous 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 within the zone of interests protected by applicable statutes.

Pebble Springs, supra, 4 NRC at 613-14.

NWF states that its interest is "the wise use and conservation of the nation's natural resources" and "to protect the environment of the state of Oregon." NWF Petition, pp.

i 1-2. While the petition lists alleged harm to its members (pp. 2-4), it lists no harm to NWF as an entity but rests its basis for standing on its own behalf solely on 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-estalished organization, with a historic commi t-ment to the cause of protecting our Nation's natural heritage 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 short-lived.

And, if any group with a bona fide 'special interest' could initiate such litigation, it is difficult to perceive why an 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 l

. 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 NWF's mere organizational interest in l environmental problems and nuclear power does not provide a I

basis for standing on its own behalf.

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B. The NWF Petition does not provide a sufficient basis for NWF 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 representative capacity, however, turns on "whether the organization has established actual injury to any of

[its] . . . members." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 40 (1976).

In regard to the unnamed members which NWF seeks to represent, the alleged injuries are various generalized adverse effects on the environment, increased risk of catastrophic e

accidents, and adverse economic effects due to increased electrical rates.1 NWF Petition, pp. 2-4. As the Appeal Board pointed out lit is well established that the economic interest of a ratepayer 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 Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122, 128 (1977); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 rnd 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 Servie Co. of Oklahoma (Black Fox Nuclear Power Station, Units 1 and 2), LBP-77-17, 5 NRC 657, 659 (1977). Nor is such interest 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). To the extent that NWF is alleging that its members might be injured as a result of

. . . the test is whether a cognizable interest of the petitioner might be adversely affected if the proceeding 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 petititioner (or those it represents) will or could flow from a result unfavorable to it--whatever that result might be." (Emphasis added). Nuclear Engineering Co., supra, 7 NRC at 743.

Since NWF has failed to identify its 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 each of these members has standing to intervene in this proceeding. Consequently, NWF 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).

NWF does name six individual members and states that these individuals have authorized NWF to intervene on their behalf.

NWF Petition, p. 2. These individuals are identified as ratepayers who live in the Portland, Oregon, area. The NWF Petition does not particularize the personal interests of each of these individuals that might be harmed by a possible outcome of this proceeding.

transportation of radioactive waste from the Skagit/Hanford Nuclear Project, such an allegation is entirely speculative and thus constitutes an insufficient basis for standing. Exxon Nuclear Co. (Nuclear Fuel Recot'ery and Recycling Center),

LBP-77-59, 6 NRC 518, 520 (1977).

w Portland is approximately 170 air miles from the proposed site for the Skagit/Hanford Nuclear Project.2 This distance is far 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 Geneca'.ing Plant, Units 1 and 2),

ALAB-107, 6 AEC 188, 190 (15 3); 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

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limit is not a sufficient interest to establish standing 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 l litigation. They can be pursued in rulemaking

, proceedings before administrative agencies and l lobbying before Congress." C.leveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 NRC 175, 178-79 (1981).

l The residences of the six named NWF members are too far "emoved from the site to meet the standing requirements to be admitted as a matter of right into this proceeding. Since the 2

Distance approximated from the Rand McNally Road Atlas,

( United States, Canada, Mexico, pp. 84-85.(1979).

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NWF Petition has not demonstrated that the named members have an interest which may be affected by this proceeding, NWF has no standing to intervene on behalf of these members.

C. NWF should not be granted discretionary intervention.

The NWF Petition attempts to establish standing to intervene as a matter of right and does not request discreti' nary intervention. Nevertheless, the question arises as to whether NWF should be admitted as a party as a matter of the Board's discretion.

, The Commission in the Pebble Springs decision listed six factors wNich 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 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 in the proceeding.

(3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest.

(b) Weighing against allowing intervention--

(4) The availability of other means whereby petitioner's interest will be protected.

(5) The extent to which the petitioner's interest will be represented by existing parties.

(6) The extent to which petitioner's participation will inappropriately broaden or delay the proceeding.

Pebble Springs, supra, 4 NRC at 616. a In regard to factor (a)(1), the NWF Petition states that

.NWF will present evidence and legal arguments and conduct examination of Applicant's witnesses on the issues of need for 9 - +

power, alternatives to the project, ability of the Bonneville Power Administration to purchase the project, various environmental impacts, cost of the project, monitoring, and availability of water. NWF Petition, pp. 4-5.

However, NWF 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 and unique means by which it might contribute to this proceeding. 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 factor must weigh ,

heavily against the discretionary intervention of NWF.

In regard to factors (a)(2) through (b)(5), NWF has not demonstrated any cognisable interest of either itself or its identified members whici. may be affected by this proceeding.

To the extent that NWF is relying upon its members' interests as ratepayers, such interests are not within the zone of interests protected by either thE Atomic Energy Act or the National Environmental Policy Act. See n.1, supra.

Consequently, this interest is not entitled to any deference in determining whether NWF should be afforded discretionary intervention. See Cleveland Electric Illuminating Co., supra, 14 NRC at 179; Detroit Edison Co. (Enrico Fermi Atomic Power l

Plant, Unit 2), LBP-78-ll, 7 NRC 381, 388, aff'd, ALAB-470, 7 NRC 473 (1978).

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i NWF has indicated its desire to litigate about a dozen general concerns. Participation by NWF under these circumstances would inevitably delay the proceeding.

Consequently, factor (b)(6) cannot be weighed in favor of discretionary intervention, and such intervention should not be granted.

III. Conclusion.

NWF has attempted to intervene in this proceeding by arguing that it has organizational interest in the subject matter of this proceeding, that unidentified members will be.

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-injured by construction and op6 ration of the plant, and that six identified members who reside more thaa 170 miles from the plant have authorized NWF to represent their interests. All of these arguments have been consistently rejected by the NRC as a basis for standing and intervention.

NWF is represented by counsel, and it must be assumed that the NWF Petition was prepared with full knowledge of NRC requirements. The NWF Petition wholly fails to meet those requirements. NWF should be denied admission as a matter of right and should not be admitted as a matter of discretion.

DATED: March 19, 1982. Respectfully submitted, PERKINS, COIE, STONE, OLSEN

& WILLIAMS By A F. Theodore Thomsen Attorneys for Applicants 1900 Washington Building Seattle, Washington 98101 (206) 682-8770 Of Counsel:

David G. Powell Steven P. Frantz Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.W.

Washington, D. C. 20036 ,

(202) 862-8400 Q

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

PUGET SOUND POWER & LIGHT COMDANY, ) DOCKET NOS.

et al. )

) STN 50-b22 (Skagit/Hanford Nuclear Project, ) STN 50-523 ,

Units 1 and 2) )

)

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CERTIFICATE OF SERVICE I hereby certify that the following:

APPLICANTS' ANSWER IN OPPOSITION TO PETITION TO INTERVENE BY THE NATIONAL WILDLIFE FEDERATION AND OBEGON ENVIRONMENTAL COUNCIL (March 19, 1982) in the above-captioned proceeding have been served upon the persons

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shown on the attached list by depositing copies thereof in the United States mail on March 19, 1982 with proper postage affixed for first class mail.

DATED: March 19, 1982 I

( d Attorney for Puget Sound Power &

Light Company 1900 Washington Building l Seattle, Washington 98101 l ..

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DATE March 19, 1982 COMMISSION INTERESTED 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 5.W. Yamhill Portland, OR 97204 LICENSING BOARD Bil3 Sebero, Chairman Judge John T. Wolf, Chairman Benton County Commissioner Atcmic 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, T. Theodore Thomsen, Esq.

.risheries and Wildlife Perkins, Coie, Stone, University of Michigan Olsen & Williams School of Natural Resources 1900 Washington Building Ann Arbor, MI 48109 Seattle, WA 96101 Gustave A. Linenberger, Member David G. Powell, Esq.

Atomic Safety and Licensing Board Lowenstein, Newman, Reis & Axelrad U.S. Nuclear Regulatory Oemraission 1025 Connecticut Avenue N.W.

Fashingt on, D.C. 20555 Washington, D.C. 20036 APPE AL B OARD James W. Durham, Esq.

Senior Vice President Alan S. Rosenthal, Chairman General Counsel and Secretary Atomic Safety and Licensing Pertland General Electric Company Appeal Board . ;21 S.W. Salmon Street U.S. Nuclear Regulatory Commission T:rtland, OR 97204 Washington, D.C. 20555

• herren G. Hastings, Esq.

Dr. John H. Buck, Member Arsociate Corporate Counsel

. Atomic Safety and Licensing Pcrtland General Electric Co=pany Appeal Board . 111 S.W. Salmon Street U.S. Nuclear Regulatory Co==ission Pcrtland, OR 97204 Washington, D.C. 20555

. E chard D. Bach, Esq.

Michael C. Farrar, Member stoel, Rives, Boley, traser & Wyse Atomic Safety and Licensing 2300 Georgia Pacific Buildinc Appeal Board 900 S.W. Fifth Avenue U.S. Nuclear Ragulatory Commission Portland, OR 97204 Washington, D.C. 20555

. CTHER NRC ST.A"F~ .'

' Canadian Consulate General Richard L. Black, Esq. Dcnald Martens, Consul Counsel for the NRC Staff 412 Plaza 600 U.S. Nuclear Regulatory Commission 6th and Stewart Street Of fice of the Executive Legal Seattle, WA 9E101 Director Washington, D.C. 20555 INTERESTED STATES AND COUNTIES Washington Energy facility Site Evaluation Council National Wildlife Federation and Nicholas 3. Lewis, Chairman Oregon Environmental Council Mail Stop PY-ll Pacific Northwest Resources Olympia, WA 98504 Law Center Attn: Terence L. Thatcher Kevin M. Ryan, Esq. 1101 Kincaid Washington Assistant Attorney General Eugene, OR 97403 Temple of Justice Olympia, WA 98504 3/15/E2

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