ML20138A926
| ML20138A926 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 03/17/1986 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Mcdermott L CONSUMERS ORGANIZED FOR DEFENSE OF ENVIRONMENTAL |
| References | |
| CON-#186-453 OLA, NUDOCS 8603200213 | |
| Download: ML20138A926 (1) | |
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March 17, 1986 00CMETED USNRC a
Mrs. Laurie McDermott '
'86 MAR 19 P2'.45 CODES 731 Pacific Street, Suite #hnCr' '; '
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San Luis Obispo 00CKUbf.I'-
CA 93401
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In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2)
Docket Nos. 50-275 OLA' and 50-323 OLA
Dear Mrs. McDermott:
Pursuant to our telephone conference today, please find the enclosed copy of " Response of the NRC Staff to the Petition for Leave to Intervene Filed by San Luis Obispo Mothers For Peace", dated February 27, 1986.
Sincerely, IIenry J. McGurren Counsel for NRC Staff
Enclosure:
As stated cc w/o enclosure: Service List DISTRIBUTION NRC Docket /LPDR/PDR FF(2)
Murray/Christenbury Lieberman Olmstead Rutberg/ Lewis Vogler Chandler / Burns /Shollenberger, Reg. V McGurren/Chron Treby Gray Reis HSchierling 428 D507
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NAME :llMcGurren:cm :JRutberg DATE 3/d/86 3/
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t 8603200213 860317 PDR ADOCK 05000275 G
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i February 27, 1986 UNITFD STATES OF AMERICA MUCLEAR REGULATORY COMMISSION BEFOFE THE ATOMIC, SAFETY AND LICENSING DOARD in the Matter of
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PACIFIC GAS AND ELECTRIC
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Docket Nos. 50-275 OL COMPANY
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50-323 OL (Diable Canyon Nuclear Power Plant
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Units 1 and 2)
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itESPONSE OF THE NRC STAFF TO THE PETITION FOR LEAVE TO INTERVENE FILED BY
, SAN LUIS ODISPO MOTHERS FOR PEACE I.
INTRODUCTION On.Tenuary 13, 1966, the Nuclear Regulatory Commission published in the Federal Register (51 Fed. Reg. 1451) a notice entitled "Consi-deration of Issuance of Amendments to Facility Opercting Licenses DPR-80 and DPR-Ci for Diablo Canyon Nuclear Power Plant, Units 1 and 2, R e-specthely, and Prcposed No Significant IIazards Consideration Determina-tion and Opportunity for Hearing" concerning the ree,uest by Pacific Gas and Electric Company (Licensee) for amendments to Facility Operating License Nos. DPR-80 and DPR-82 which would authorize the Licensee to increase the Diablo Canyon Nuclear Power Plant, Unit 1 and Unit 2, spent fuel storage capacity from 270 to 1324 storage locations for each unit. On February 7, 1986, Sandra A. Silver filed a letter (hereinaf ter " Petition")
requesting a hearing and petitioning for leave to intervene on behalf of.
the San Luis Obispo Mothers for Peace ("Nothers for Peace").
The
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Staff's response to this petition is set forth below.
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- 11. DISCUSSim A.
The Standards for Intervention 1..
Petitioners Tust lueet the " Interest" Requirenents o_f,1,0 C.F.R.S 2.714 Section 189a of the Atomic Energy Act of 1954, as amended, 47 U.S.C. S 223D(a), provides that:
In any proceeding under [the] Act, for the granting, sus-pending, revokin g, or amending of any license the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding..
Section 2.714(s)(2) of the Commission's Rules of Practice, 10 C. F. R.
S 2.714(a)(2), requires that a petition to intervene in a Commission pro-ceeding set forth with particularity:
(1) the interest of the petitioner in the proceeding; (2)
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how that interest may be affected by the results of the I;roceeding; and s
(3) the specific aspect or aspects of the subject matter of the prccceding as to which petitioner wishes to intervene.
In order for intervention to be granted, the Atomic Safety and Licensing Board designated to rule on pctitions to intervene and/or requests for-henring must find that the petition satisfies these standards.1/
In determining whether the requisite interest prescribed by both Section 189e of the Atomic Energy Act and Section 2.714 of the Commis-1/
Intervention may also be granted as a matter of discretion to a peti-tiener who is not entitled to intervention as a matter of right if the petitioner can show that the Commission's specific criteria weigh in favor of discretionary intervention.
See Portland General Electric Com pany, et al. (Pebble Springs Nuclear Plant, Units I and 2),
CLI-76-27, 4 NRC 010, 616 (1976).
Since, the instant petitioner has not addressed these criteria, which is its burden (Nuclear Engineer-ing Company (Sheffield, Illinois, Low-Level Radiation Waste Disposal Site), ALAB-473, 7 NRC 737, 745 (1978)), discretionary intervention will not be discussed further.
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sion's Rules of Practice is present, the Commission has held that contem-poraneous judicial concepts of standing are controlling.
Portland General Electric Co. (Pebble Springs Nuclear Plant. Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976).
Thus, there must be a showing (1) that the action being challenged could cause " injury-in-fact" to the person seeking to intervene b and (2) that such injury is arguably within the " zone of interests" protected by the Atomic Energy Act -31 of the National Environmental Policy Act. 4/ M. See also Warth v. Seldin, 422 U.S. 490 (1975);
Sierra, Club v.1Morton, 405 U.S.
727 (1972);
Association of 1
Data Processing Service Organizations, Inc. v. Camp, 397 U.S.
150, 153 i
(1970).
The Appeal Board has ruled that the close proximity of a petitioner's residence, standing alone, is sufficient to satisfy the interest require-men ts.
Virginia Electric and Power Company (North Anna Nuclear Power S tation, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979).
Though no firm outer boundary for this zone of interest has been determined, dis-l tances of up to 50 miles have been accepted by the Appeal Board as con-i j
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" Abstract concerns" or a "m ere academic interest" in the matter which are not accompanied by some real impact on a petitioner will not confer standing.
See In the Matter of Ten Applications for Low-Enriched Uranium Tports to EURATOM Member Nations,
C LI-7 7-24, 6 NRC 525, 531 (1977); Pebble Springs, CLI-76-27, su-pra, 4 NRC - at 613.
Rather the asserted harm must have some pH-ticular effect on a 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, et al. (Barnwell Fuel Receiving and Storage Station), A LA B-328, 3 NRC 420, 422 (1976).
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42 U.S.C. S 2011 et seq.
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42 U.S.C. S 4321 et seq.
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. I ferring standing upon particular petitioners.
See, eg., Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421 at n.4 (1977); Cf. Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), ALAB-146, 6 AEC 631, C30-34 (1973); Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2),
ALAB-107, 6-AEC 188, 190, 193, reconsideration denied, ALAB-110, 6 AEC 247, aff'd, CL1-73-12, 6 AEC 241 (1973).
An organization may gain standing to intervene based on injury to itself.
Edlew International Company, CL1-76-6, 3 NRC 563, 572-74 (1976).
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 citizeits.
Ten, Applications, CL1-77-24, supra, at 531.
On - the other hand, an organization may establish standing through members of the organization who have an interest which may be affected by the outcome of the proceeding.
Public Scryice Co. of Indiana,, Inc. (Marble Hill Nu-clea r Generating S tation, Units 1 and 2), ~ALAB-322, 3 NRC 328, 300 (1976).
When an organization claims that its standing is based on the interests of its members, the organization must identify one or more indi-vidual members (bj name and address) whose interests may be affected and give some concrete indication that such members have authorized the organization to represent their interests in the proceeding.
Houston Lighting and Power Company ( Allens Creek Nuclear Generating Station,
Unit 1),
ALAB-535, 9
NRC
- 377, 393-97 (1979);
Public Service Electric and Gas Company (Salem Nuclear Generating Station,
Units 1 i
and 2), AL AB-136, 6 AEC 487, 488-89 (1973); Duquesne Light Company _,
et al. (Beaver Valley Power Station, Unit No.1), ALAB-109, 6 AEC 243, 544 at n.2 (1973).
Specific representational authorization of a member with personal standing is not required where the sole or. primary purpose of the petitioning organizhtion is to oppose nuclear power in general or the particular facility at bar. Allens Creek, - ALAB-535, supra, at 396. b
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Petitioners Must Meet the " Aspect" Requirenents-
.o_f 10 C.F.R. S 2.71,4,,
In addition to demonstrating " interest", a petitioner must set forth "the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene." 10 C.F.R. S 2.714(a)(2). 6/
While there is little guidance in NRC case law as to the meaning of "as-('
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Further, under Section 2.710 of the Commission's Rules of Practice, a " partnership, corporation or unincorporated association may be represented by a duly nuthorized member or officer, or by an attor-n cy-a t-la w. "
10 C.F.R. 5 2.713(b) (emphasis added). Thus, where an crgani::ation is represented by one of its members, the member must demonstrate authorization by that organization to represent it.
It is clear that groups may not represent persons other than their own members, and individuals may not assert the interest of other persons.
Long Island Lighting Co. (Shorehan Nuclear Power Sta-tion, Unit 1),
L B P-7 7-11, 5 NRC 481, 483 (1977); Watts Bar, A L AB-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 Commis-sion's regulations, no provision for private attorneys general. Port-land General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), ALAB-333, 3 NRC 804, 806 n.6 (1976); Long Island Lighting Company, LBP-77-11, supra, at 483.
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10 C.F.B. S 2.714 also requires the petitioner to file "... a sup-plement 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 specific-ity. "
This section further provides:
"A petitioner who fails to file such a supplement which satisfies the requirements of this paragraph with respect to at least one contention will not be permitted to par-ticipate as a party."
The NRC staff will respond to the contentions set forth in the supplements after their receipt. Accordingly, noth-(FOOTNOTE CONTINUED ON NEXT PAGE) i
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, l pect" as the term is used in 10 C.F.R. S 2.714, it appears that a peti-tioner may satisfy this requirement by identifying general potential effects of _ the licensing action or creas of concern which are within the scope of natters that may be considered in the proceeding. 71 See North Anna, ALAB-146, supra, at 633; Metropolitan Edison Co. (Three Mile Island Nu-clear 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).
B.
Evaluation of the Lbthers For Peace Petition 1.
'Ihe Mothers for Peach Interest and Standing l
The Petitioner sets forth its interest based on the general assertion that its members "...
are residents, property owners and tax payers living in San Luis Obispo County".
Petition at 1.
The injury asserted
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by the Petitioner is that "... the reracking of the spent fuel pools pose a threat to the health and safety of our far.ilies, our neighbors and our comm unity. "
Id.
While it appears that the petitioner will have no diffi-culty establishing standing in the instant proceeding as it has done in the i
(FOOTNOTF. CONTINUFD FROM PREVIOUS PAGE) ing said herein by the Staff regarding a petitioner's "as pects" is intended to apply in any way to a petitioner's satisfaction of the 10 C.F.R. S 2.714 contention requirements.
7/
The subject matter of the proceeding, for purposes of identification of " aspects" relates to the question of public health and safety of the proposed action (issuance of the amendments) and not the proce-teal determination made by the Commission staff concerning whether
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or not the proposed action involves a "significant hazards consider-s tion. " See, 48 Fed. Reg.14864, 14865 ( April 6, 1953).
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o.
. pect" as the term is used in 10 C.F.R. S 2.714, it appears that a peti-tioner 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. 7/
See North Anna, ALAB-146, supra, at 633; Metropolitan Edison Co. (Three Mile Island Nu-elear 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).
B.
Evaluation of the Mothers For Peace Petition 1.
'Ihe Mothers for Peach Interest and Standing The Petitioner sets forth its interest based on the general assertion that its members "...
are residents, property owners and tax payers living in San Luis Obispo County".
Petition at 1.
The injury asserted by the Pctitioner is that "... the reracking of the spent fuel pools pose a threat to the health and safety of our families, our neighbors and our comm unity. "
Id.
While it appears that the petitioner will have no diffi-culty establishing standing in the instant proceeding as it has done in the operating license proceeding 8/
the present assertions above are nct i
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The subject matter of the proceeding, for purposes of identification of " aspects" relates to the question of public health and safety of the proposed action (issuance of the amendments) and not the proce-l dural determination made by the Commission staff concerning whether or not the proposed action involves a "significant hazards consider-a tion. " See, 48 Fed. Reg.14864, 14865 ( April 6,1983).
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The fact that the Petitioner has been admitted in another proceeding concerning Diablo Canyon does not excuse its failure to demonstrate that the requirements for intervention are met for this proceeding.
Its prior participation in a Diablo Canyon proceeding is not alone sufficient to establish its interest with regard to a separate proceed-ing for the same facility.
See Philadelphia Electric Co. (Peach Bot-(FOOTNOTE CONTINUED ON NEXT PAGE) i
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sufficient to satisfy the criteria, identified above, for establishing the interest and standing of organizations.
The petition has failed to estab-lish ho y the organization itself will be injured by the proposed action, Edlow International Company, CLI-76-6, supra, at 572-74; Ten Applica-tion s, CLI-77-24, supra, at 531, nor does it, in the alternative, demon-strate standing through its members since it does not identify the address of a single member who resides within close proximity to the Diablo Canyon Nuclear Power Plant (North Anna, ALAB-522, supra) and who has authorized the Mothers for Peace to represent his or her interests in the proceeding. Allens Creek, ALAB-535, supra, at 393-97.
The Petitioner can remedy these deficiencies by amending its petition to demonstrate standing either based on injury to the organization itself or based on the standing of one of its members (i.e. the identification of the address of a single member indicating residence within close proximity to the Diablo Canyon facility, see North Anna, ALAB-522, supra, as well as the requisite authorization by such individual that the organization represent his or her interest, see Allens Creek, ALAB-535, supra).
In light of the Petitioner's long and active participation in the Diablo Canyon operating license proceeding the Staff would expect that the foregoing deficiencies can readily be remedied.
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
- l tom Atomic Power Station, Units 2 and 3), LBP-75-22, 1 NRC 451, 454-55 (1975); Wisconsin Electric Power Co. (Point Beach Nuclear Ii Plant, Unit 1), LDP-73-26, 6 AEC 612, 616 (1973).
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2.
Specific Aspects of the Subject Matter of. the Proceeding The Mothers of Peace petition has expressed a concern that falls within the scope of this proceeding, that is whether the scismic design of the spent fuel pool as modified by the proposal is adequate.
According-ly, the Staff finds that the petition filed on behalf of the Mothers for Peacc does properly set forth a specific aspect of the proposed amendrnents on which it wishes to intervene.
III. CONCLUSION For the reasons stated above, the NRC staff believes that the peti-tion for leave to intervene filed on behalf of Mothers for Peace satisfies the " aspect" requirements of 10 C.F.R.
S 2.714 but has failed to satisfy the standing requirements of 10 C. F. R. S 2.714.
The Staff urges, in light of this deficiency, that Mothers for Peace be given a reasonable period cf time to cure this deficiency.
Respectfully suhnitted,
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IIenry J. McGurren Counsel for NRC Staff Ihted at Dethesdn, Yaryland this 07th day of Fchruary, 1986 1
(FOOTNOTF. CONTINUED FROY. PREVIOUS PAGE) l tom Atomic Power Station, Units 2 and 3), LBP-75-22, 1 NRC 451, 454-55 (1975); Wisconsin Electric Power Co. (Poin t Beach Nuclear Plant, Unit 1), LBP-73-26, 6 AEC 61?, 616 (1973).
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g g j9 p310
- BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD Urt h. Or :,t.e 0.0CMETING & LVICf.
In the Matter of
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PACIFIC GAS AND ELECTRIC
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Docket Nos. 50-275 OL COMPANY
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50-323 OL
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(Diablo Canyon Nuclear Power Plant
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Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF THE NRC STAFF TO THE PETITION FOR LEAVE TO INTERVENE FILED BY SAN LUIS OBISPO MOTHERS FOR PEACE" 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 27th day of February,1986:
Glenn O. Bright, Esq.
Administrative Judge Mr. Thomas H. Harris, Energy Writer Atomic Safety and Licensing Board San Jose Mercury News U.S. Nuclear Regulatory Commission 750 Ridder Park Drive Washington, D.C.
20555*
San Jose, CA 95190 Dr. Jerry Kline Mr. Gordon Silver Administrative Judge Mrs. Sandra A. Silver Atomic Safety and Licensing Board 1760 Alisal Street U.S. Nuc! car Regulatory Commission San Luis Obispo, CA 93401 Washington, D.C.
20555*
Arthur C. Gehr, Esq.
Elizabeth Apfelberg Snell & Wilmer 1415 Cozadero 3100 Valley Center San Luis Obispo, CA 93401 Phoenix, AR 85073 Richard E. Blankenburg Philip A. Crane, Jr., Esq.
Co publisher P.O. Box 7442 Wayne A. Soroyan, News Reporter San Francisco, CA 94106 South County Publishing Company P.O. Box 460 Arroyo Grande, CA 93420 Mr. Frederick Eissler Bruce Norton, Esq.
Scenic Shoreline Preservation Norton, Burke, Berry & French, P.C.
Conference, Inc.
2002 E. Osborn Road 4623 More Mesa Drive P. O. Box 10569 Santa Barbara, CA 93105 Phoenix, AZ 85064
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Mrs. Raye Fleming Docketing and Service Section 1920 Mattie Road Office of the Secretary Shell Beach, CA 93449 U.S. Nuclear Regulatory Commission Washington, D.C.
20555*
Joel R. Reynolds, Esq.
Atomic Safety and Licensing John R. Phillips, Esq.
Board Panel Center for Law in the Public U.S. Nuclear Regulatory Commission Interest Washington, D.C.
20555*
10951 West Pico Boulevard Third Floor Atomic Safety and Licensing Los Angeles, CA S0064 Appeal Board Panel (5)
U.S. Nuclear Regulatory Commission David S. Pleischaker, Esq.
Washington, D.C.
20555*
P. O. Box 1178 Oklahoma City, OK 73101 Mr. H. Daniel Nix California Energy Commission Richard B. Hubbard MS-17 MHB Technical Associates 1516 9th Street 1723 Hamilton Avenue - Suite K Sacramento, CA 95814 San Jose, CA 95125 Lewis Shollenberger John Marrs, Managing Editor Regional Counsel San Luis Obispo County
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USNRC, Region V Telegram-Tribune 1450 Maria Lane, Suite 210 1321 Johnson Avenue Walnut Creek, CA 94596 P.O. Box 112 San Luis Obispo, CA 93406 Janice E. Kerr, Esq.
Harry M. Willis Laurence Q. Carcia, Esq.
Seymour & Willis 350 McAllister Street 601 California St., Suite 2100 San Francisco, CA 94102 San Francisco, CA 94108 Michael J. Strumwasser, Esq.
Mr. J. D. Shiffer Susan L. Durbin, Esq.
Vice President Peter H. Kaufman, Esq.
Nuclear Power Generation 3580 Wilshire Blvd., Suite 600 c/o Nuclear Power Generation, Licensing Los Angeles, CA 90010 Pacific Gas and Electric Com pany 77 Beale Street, Room 1451 Mr. Lee M. Gustafson San Francisco, CA 94106 Pacific Gas and Electric Co.
1050-17th Street, N.W.
Washington, DC 20036-5574 s2 HenYg f. McGurren CounM for NRC Staff
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