ML20072N394

Citizens for Orderly Energy Policy,Inc Reply to NRC 830629 Opposition to Citizens Petition to Intervene.Particularized Injury Demonstrated,Petition Timely & Contentions within Scope of Proceeding.Certificate of Svc Encl

ML20072N394
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/12/1983
From:	Swartz L PACIFIC LEGAL FOUNDATION
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL-3, NUDOCS 8307150308
Download: ML20072N394 (12)

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. . . re ~ July 12, 1983 ,

i-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION -

g BeforetheAtomicSafetyandLicensingBoard[ [ "j ,e In the Matter of ) s .

LONG ISLAND LIGHTING COMPANY ) Docket No. 502322 (OL)

) (Offsite Emergency Planning)

(Shoreham Nuclear Power Station, Unit 1) )

REPLY OF THE. CITIZENS FOR Alf ORDERLY ENERGY POLICY, INC. TO THE NUCLEAR REGULATORY COMMISSION STAFF RESPONSE TO PETITION TO INTERVENE On June 29, 1983, the Nuclear Regulatory Commission (NRC) staff filed its response to the petition to intervene filed by the Citizens for an Orderly Energy Policy, Inc. (Citizens). The NRC staff concluded that the Citizens' petition should not be -

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granted. Staf f Response at 1.1 In opposing Citizens' petition, the NRC staff asserted that: (1) no injury in fact has been demonstrated, (2) the interest asserted by Citizens is not cognizable under the Atomic

, Energy Act, and (3) that Citizens has not met the requirements for a late-file 6 petition. As is shown belo'w, each of these arguments

. is with,out merit. .

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, CITIZENSHASDEMONSTRATEDAPARTICULARIhEDINJURY

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Citizens agrees that a petitioner seeking to intervene in a licensing proceeding must demonstrate injury in f act. The NRC 1

The Long Island Lighting Company (LILCO), the applicant for an operating license in this proceeding, and Suffolk-County, an intervenor in this proceeding, did not oppose Citizens' petition.

Citizens has received no other res'ponses to its petition to intervene.

8307150308 830712 PDR ADOCK 05000322 b PDR &eO

staff, however, argues that Citizens' petition to intervene asserts no more than a mere generalized interest in the issue of nuclear poker. The staff has misread Citizens' petition.

Citizens, as an organization, does indeed have a general 4

interest in the promotion of nuclear power as an energy source. As was discussed in Citizens' petition, the organization was formed for the purpose of establishing,. coordinating, and implementing '

programs designed to promote the development of a rational energy-policy for Long Island. See Citizens' Petition at 4. The members of Citizens share this interest. The basis for Citizens ' standing to intervene in this proceeding, however, is not this general interest, but rather the specific injury the members of the organization will suffer should the Shoreham Nuclear Power Station not be allowed to operate. These specific injuries include the

loss of an important and needed energy source, one which could.be

repla cec', by a less clean or a less environmentally sound facility. A discussion of Citizens' potential injuries was presented in its petition. See Citizens,' Petition at 5-6.

The NRC staff also claims that proximity to a nuclear power plant demonstrates an " interest" only 'if one alleges he will

_ be injured by radiation released f' rom the facility. Staff Response at 5. The staff then' states that living within Elose proximity of a proposed facility does not, in and of itself, indicate that a

failure to license the facility will cause one harm. _I d_. Citizens disagrees. One who litves near a proposed nuclear-facility can demonstrate the requisite interest by asserting a need and a desire i .

for clean, safe, and efficient energy sources in the vicinity. It is this interest which Citizens has asserted. See Citizens' Petition at 4-5. .

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THE PROMOTION OF NUCLEAR ENERGY IS COGNIZIBLE UNDER THE ATOMIC ENERGY ACT Although the NRC staff claims that Citizens has not

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demonstrated a particu1arized injury, it later asserts that Citizens' interest is not within the " zone of interests" created by the Atomic Energy Act. Staff Response at,6. The staff states that allegations of economic interest as ratepayers and property owners .

would not confer standing. Staff Retponse at 7.2 The interest asserted by Citizens, however, is not-economic, but rather that of having a nuclear power facility in the area to generate electricity. The promotion of nuclear energy as a power source is an interest cognizable under'the Atomic Energy Act. The congressional findings and purposes as stated in the Atomic Energy Act make it clear that Congress intended not only to regulate nuclear power for the public hehlth and safety but also to promote it as a power source. See 42 U.S.C...SS 2011-13. Contrary to the staff's positi6n, the Appea,1 Board has stated that avoidance

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of a th.reat to health and safety as a result of r'adiological releases 2

Again the NRC staff has misread Citizens' petition. Neither Citizens nor its members have asserted, for the purposes of standing to intervene in this proceeding, an interest' based on their ratepayer or property owner status. .

is only one of the interests encompassed by the Atomic Energy Act. See Virginia Electric Power Company (North Anna Power, Units 1 hnd 2), ALAB-342, 4 NRC 98, 105 (1976).

The staff agrees that if a petitioner supporting a nuclear power

plant alleges a particularized harm stemming fr,om a failure to license a nuclear power plant and that the harm is within the zone of interests protected by the Atomic Endrgp Act, then that petitioner would have standing to intervene. Staff Response at 6 n.1. As discussed in its petition to intervene and above, Citizens has shown that it and its members would, in fact, be injured should the Shoreham Nuclear Power Station not be licensed to operate. This interest in having a nuclear power source available in the community for the generation of electricity is cognizable under the Atomic Energy Act. Consequently, Citizens has standing to intervene in this proceeding.3 III ,

CITIZENS' PETITION IS TIMELY

! The NRC staff argues that. Citizens' petition to intervene

- in this proceeding is untimely bec'ause the first. notice of 3

If it is determined, based on its petition and this reply, that Citizens has no standing to intervene, then no petitioner could ever demonstrate standing to intervene in a licensing proceeding in support of a nuclear facility. The staff states its belief that a petitioner in support of a plant could satisfy the standing requirement, yet the theories the staff uses operate strongly against this eventuality. There is no basis in the Atomic Energy Act or the regulations which justifies the one-sided intervention process advocated by the staff. -

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opportunity for a hearing on the application for an operating t

license for Shoreham was published in 1976. Staff Response at 7.4 Thb staff does acknowledge, however, that the order establishing the instant hearing regarding the adequacy of LILCO's emergency plan in the absence of participation by Suffolk County was issued on April 20, 1983.

The NRC staff. ignores Citizens' argument that because this special proceeding was established so recently, it could not have acted in a more expeditious fashion. Whi1s other intervenors may

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have indicated a desire to litigate emergency planning since the inception of the operating license proceeding, Citizens has not expressed a desire to litigate emergency planning contentions in general. Rather, Citizens wants to participate in the litigation of the issue of whether LILCO's plan, in light of Suffolk County's

, refusal to participate in the emergency ,-

planning process, is j

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adequate. The need to litigate this particular issue did not arise until late April, 1983. ~

Even if Citizens' petition to iptervene is considered to be a late-filed petition, Citizens has demonstrated that its petitioh should be granted based on the factors set forth in

_ 10 C.F.R S 2.714(a)(1). Although'the NRC staff-claims that the first factor of " good.cause" was not addressed, Citizens did specifically discuss this factor in its petition. See Citizens' Petition at 14. To paraphrase its earlier discussion, Citizens has shown good cause for not filing earlier for the simple reason that 4

LILCO and Suffolk County also allege toat Citizens' petition

. was late-filed. -

the events leading up to this special emergency planning proceeding have only recently occurred. Moreover, the threat that the station may never be allowed to operate, because of Suffolk County's stance on emergency planning, has only recently come to light.

The four other factors should also be resolved in favor of 1

Citizens. As the NRC staff acknowledged, when a petition to j intervene has been filed late, the most important factor is whether

the participation will broaden or delay the proceeding. Staff Response at 10, citing Detroit Edison Company (Greenwood Energy Center, Units 2 and 3), ALAB-476, 7 NRC 7'59, 761-62 (1978). In the Greenwood case, the Appeal Board found that the petitioner who filed late would not broaden or delay the proceeding, and that it 1

would be " patently inequitable" to bar its participation on the i

basis of lateness unless "the three other factors weigh heavily in j favor of rejecting the petition." Id. at 763. The staff did agree that the admission of Citizens as'an intervenor would not delay the proceeding. Staff Response at 10. -

The NRC staff also states that Citizens should provide "a bill of particulars" in support of its statement that it can

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Staff' Response at 9-10.

provide expertise in its proceeding'.

l _ While it is unclear as to what a " hill of particulars" consists of I

in this context, Citizens is unaware of any case'in which a potential intervenor was required to present such evidence. In fact, in the Greenwood case cited by the staff, the Appeal Board merely acknowledged that no " bill of particulars"-had been filed O

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in a dif ferent situation "ye Eightwel2

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and that have found that ..

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consideration dispositive." p~h0Vid tt[h < Licensing ,

.. 1 Botrd decide, however, that a " bill of particulars" should ,bg + -

provided, Citizens will do so. -

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Next, the NRC staff argues that LILCO will advocate its s'

plan to the fullest extent possible and therefore Citizens' position will not go unrepresented. Staff Response at 10. -As

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discussed in Citizens' petition, however, the utility does not have the same interest or perspective as does Citizens. See Citizens' Petition at 10-11. With respect to other~means which may exist for Citizens to protect its interest, the staff suggests that Citizens can argue its position on Shoreham offsite emergency planning directly to the Suffolk County government., Staf f Response at 10.

Citizens has taken this approach-in the past to no avail. It therefore seeks to take the next step and to argue its position before the Licensing Board.

On balance then, if its petition is considered late, Citizens can demonstrate that it meets the requirements set forth for late intervention. It has demonstrated good cause for not filing it an earlier time, the absence of ot'h'er means whereby the

_ petitioner's interest will be prot'ected, the ability of petitioner to assist in developing a sound record, the abseice of other

parties to further petitioner's interest, and the willingness of petitioner to "take this proceeding as it finds it." See 10 C.F.R.

l S 2.714(a)(1) and Petition at 13-14.

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IV CITIZENS' CONTENTIONS ARE WITHIN THE SCOPE OF THIS PROCEEDING The NRC staff states that the Appeal Board has ruled that a petitioner in support of a license' application can fulfill the contention requirement by merely asserting that the application is meritorious and should be granted, and later taking a position on the contentions posed by intervenors opposing the operation of the facility. Staff Response at 13. While this approach in no way challenges its position on intervention and is generally satisf actory, Citizens is willing and able to draf t and litigate specific contentions.

With respect to this proposal, however, Citizens notes that in setting forth this scheme, the Appsal Board was speaking hypothetically and stated only in dicta _ its belief that if a

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petitioner who supports the license-application were permitted to intervene, that petitioner could be allowed to merely take a position on contentions filed by other parties. Nuclear Energy Company (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 n.5 (1978). Citizens also notes that the intervention' regulations ,which outline the one admissibic

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, contentionrequirementdonotdifferentiatebetwdenpartieswhich support and partier which oppose a facility. See 10 CFR S 2.714(b).

The contentions which Citizens has drafted, contrary to the staff's position (Staf f Response at 13 n. 3), are admissible in  !

. . l this proceeding. Citizens' Contention No. 1 primarily deals with I the adequacy _of a ten-mile emergency planning zone. The definition

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of an emerge ~ncy planning zone is set forth in 1G C.F.R. S 50.47(c)(2).

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That regula(ion states that the emergency planning zone is " generally" ten miles in radius but can be modified on a case-by-case basis.

In'this contention, Citizens is merely arguing that the ten-mile emergency planning zone established by LILCO is adequate. This contention is not a challenge to the regulations. Similarly, Contention No. 2 challenges neither the adequacy of the source term nor the regulations. Bather, C1.tizens would attempt to show that '

i by having a plan which assumes a particular source term, the public is well protected because the source tenn is quite conservative, i.e., the emergency plan which assumes th's i conservative source term is more than adequate to protect the public health and safety.

Contention No. 3 does not attempt to litigate the adequacy of Suffolk County's civil defense plan. The purpose of this contention is to challenge Suffolk County's erroneous conclusion that no radiological emergency plan can be prepared. Whether the civil defense plan is adequate in the event of an attack is indeed outside the scope of this proceeding, but is not the substance of Contention No. 3. .

Finally, NRC argues that Contention Nos. 4 and 5 are "covereo by Suffolk County's contentions." Response at 13 n.3.

_ Citizens.is at a loss to see how i'ts contentions,. which support the s -

, emergency plan, and Sdffolk County's contentions 7 which seek to impugn the plan, can be considered as one. In essence, Citizens' I

contentions challenge the basis for Suffolk County's contentions l

and as such must be considered apart from Suffolk-County's allegations.

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For the reasons stated in its petition to intervene filed lon June 14, 1983, and in this reply, Citizens rerpectfully requests thht its petition to intervene be granted and that it be admitted as a party in this special proceeding to litigate the adequacy of LILCO's emergency plan.

DATED: July 12, 1983.

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. Respectfully submitted, '

RONALD A. ZUMBRUN

-SAM KAZMAN LUCINDA LOW SWARTZ Pacific, Legal Foundation 1990 M Street, N.W., Suite 550 Washington, D. C. 20036 Telephone: (202) 466-2686 f 'By M g d 7g l LUCINDA LOW SWARTZ Attorneys for Citizens for an _

Orderly Energy Policy, Inc.

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UNITED STATES OF AMERICA 33 g NUCLEAR REGULATORY COMMISSION J' 3 gg3 ,, f

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Before the Atomic Safety and Licensing Board L 9"-

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In the Matter of '

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.LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 (OL)

) (Offsite Emergency Planning)

(Shoreham Nuclear Power Station, Unit 1) )

_ CERTIFICATE OF SERVICE ,

I hereby certify that copies of the " Reply of the Citizens for an Orderly Energy Policy, Inc. to the~ Nuclear Regulatory Commission Staff Response to Petition to Intervene" were served upon the following by first-class mail on July 11, 1983, or as indicated by an asterisk, by hand ' delivery on July 12, 1983:

James A. Laurenson, David J. Gilmartin, Esq.

Chairman Attn: Patricia A. Dempsey , Esq.

Atomic Safety and County Attorney Licensing Board Suffolk County Department United States Nuclear ~

of Law Regulatory Commission Veterans Memorial Highway Washington, D.C. 20555 Hauppauge, New York 11787 Dr. Jerry R. Kline Edwin J. Reis, Esq.

Atomic Safety and Bernard M. Bordenick, Esq.

Licensing Board David A. Repka, Esq.

United States Nuclear United States Nuclear Regulatory Commission Regulatory Commission Washington, D. C . 20555 Washington, D.C. 20555 Dr. M. Stanley Livingston , James Dougherty, Esq.

- Atomic Safety and 3045 Porter G'reet

( Licensing Board, Washington,_ y,C. 20008 United States Nuclear Regulatory Commission Washington, D.C. 20555 Secretary of the Commission Ralph Shapiro, Esq.

United States Nuclear .

Cammer and Shapiro, P. C.

Regulatory Commission 9 East 4 0th Street Washington, D.C. 20555 New York, New. York 10016 e

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f Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board Panel United States Nuclear United States Nuclear Regulatory Commission Regulatory Commission

• Washington, D. C. 20555 Washington, D. C. 20555 James N. Christman, Esq. '

Mr. Jay Dunkleberger Hunton & Williams New York State Energy Office 707 East Main Street Agency Building 2 P.O. Box 1535 Empire State Plaza Richmond, Virginia 23212 Albany, New York 12223 Herbert H. Brown, Esq. , Mr. Marc W. Goldsmith

• Lawrence Coe Lanph5r, Esq. s Energy Re~.earch Group Christopher McMurray, Esq. 4001 Totten Pond Road Kirkpatrick, Lockhart, Hill, Waltham, Massachusetts 02154 Christopher & Phillips - -

8th Floor Howard L. Blau 1900 M Street, N.W. 217'Newbridge Road Washington, D. C . 20036 Hicksville, New York 11801 Stephen B. Latham, Esq. Jonathan D. Feinberg, Esq.

Twomey, Latham & Shea New York State 33 West Second Street Department of Public Service P.O. Box 398 Three Empire State Plaza Riverhead, New York 10901 Albany, New York 12223 Stewart Glass, Esq. Spence- Perry , Esq.

Regional Counsel Associate General Counsel Federal ~ Emergency -

- Federal Emergency Management Agency Management Agency 26 Federal Plaza, Room 1349 Washington, D. C . 20472 New York, New York 10278 -

MHB Technical Associates 1723 Hamilton Avenue '

Suite K San Jose, California 95125 4

. Alif (S NA2

'LUCINDA LOW SWARTZ

' July 11, 1983 e .

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