ML20154C291

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Response to Mothers for Peace 860207 Petition for Leave to Intervene Re Util Request for Amends to Licenses DPR-80 & DPR-82,increasing Spent Fuel Storage Capacity.Time Needed to Satisfy Standing Requirements.W/Certificate of Svc
ML20154C291
Person / Time
Site: Diablo Canyon  Pacific Gas & Electric icon.png
Issue date: 02/27/1986
From: Mcgurren H
NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:
Atomic Safety and Licensing Board Panel
References
CON-#186-290 OLA, NUDOCS 8603050086
Download: ML20154C291 (11)
v • d • e


Text

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00LKETED

, February 27,19%NRC l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION W MR -4 40 :31 BEFORE THE ATOMIC, SAFETY AND LICENSING BOARD 0FFE G ._

00chtimt . neuct BRANCH In the Matter of )

)

PACIFIC GAS AND ELECTRIC ) Docket Nos. 50-275 OL COMPANY ) 50-323 OLH (Diab!c Canyon Nuclear Power Plant ) Units 1 and 2) ) RESPONSE OF Tl!E NRC STAFF TO THE PETITION FOR LEAVE TO INTERVENE FILED BY 

                   , SAN LUIS ODISPO MOTHERS FOR PEACE I.         INTR ODUCTIO,N_

On January 13, 1986, the Nuclear Regulatory Commission published in the Federal Regrister (51 Fed. Reg . 1451) a notice entitled "Consi-deretion of Issunnec of Amendments to Facility Operating Licenses DPR-80 and DPR-C:. for Diablo Canyon Nuclear Power Plant, Units 1 and 2, Re-spectively, and Proposed No Significant Hazards Consideration Determina-tion and Opportunity for Hearing" concerning the request by Pacific Gas and Electric Company (Licensee) for amendments to Facility Operating License Nos. DPR-80 and DPR-82 which would authori::e the Licensee to increase the Diablo Canyon Nuclear Power Plant, Unit 1 and Unit 2, spent fuel stornge capacity from 270 to 1324 storage locations for each unit. On February 7,1986, Sandra A. Silver filed a letter (hereinafter " Petition") requesting a hearing and petitioning for leave to intervene on behalf of the San Luis Obispo Mothers for Peace (" Mothers for Peace"). The Staff's response to this petition is set forth below. 8603050006 860227 PDR ADOCK 05000275 g PDR

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T II. DISCUSSIOT A. 'Ihc Standards for Intervention 1., Petitioners Tust Meet the " Interest" Requirements of,10 C.F.R.S 2.714 Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. S 2230(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(a)(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) how that interest may be affected by the results of the I;roceeding; and (3) the specific aspect or aspects of the subject matter of the prceeeding 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 hearing must find that the petition satisfies these standards. N In determining whether the requisite interest prescribed by both Section 189a 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-tioner 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 1 and 2), CLI-76-27, 4 RItC 610, 616 (1976). Since, the instant petitioner has l not addressed these criteria, which is its burden (Nuclear enc ineer-ing Company (Sheffield, Illinois, Low-Level Radiation Waste Disposal Site), ALAB-473, 7 NRC 737, 745 (1978)), discretionary intervention will not be discussed further.

sion's Rules of Practice is present, the Comraission has held that conte n-pornnecus judicial concepts of standing are controlling. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 IIRC 610, 010-14 (1976). Thus, there riust be a showing (1) that the action being challcuged could cause " injury-in-fact" to the person seeking a to intervene l and (2) that such injury is arguably within the "rone of 3/ intcrests" protected by the Atcmic Energy Act - of the National Environmental Policy Act, b g. See also Warth v. Seldin, 422 U.S. 400 (1975); Sierra, _ Club v. Morton, 405 U.S. 127 (1972); Association of Deta Preccssing Service Organizations, Inc.,v. Camp, 397 U.S. 150, 153 (1970). The Appeal Bccrd has ruled that the close proximity of a petitioner's residenet , standing alone, is sufficient to satisfy the interest require-monts. Virginia Electric and Power Company (Ucrth Anna Nuclear Fcwer S ta tion , 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-tances of up to 50 miles have been accepted by the Appeal Board as con- 

                                                 ~2/                 " Abstract concerns" or a "raere academic interest" in the riatter 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 Erports to EURATOM Merber Nations, C LI-77-24, G NRC 525, 531 (1977); Pebble Springs, CLI-76-27, su-pra, 4 NRC at 613. Rather the asserted harm must have some par-ticular effect on a petitioner, Ten Applications, CLI-77-24, supra, and a petitioner must have some direct stake in the outcome of the proceedin g. See Allied-General Nuclear Services , et al. (Barnwell Fuel Receiving and Storage Sta tion) , A L A B-328, 3' NRC 420, 422 (1976).

3/ 42 U.S.C. S 2011 et seq. 4/ 42 U.S.C. S 4321 et seq. 

                     .-.. ..                                                                               .     - -                -.           .  .   .      -   _ ,    .      - - ~.

i 

             ,                                                                                                                                                                                                     ferring standing upon particular petitioners.                               See,   eg.,     Tennessee        *

? Vs])ey Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1419, 3421 at n.4 (1977); Cf. Virginia Electric and Power Company I l, (Ncrth Anna Power Station, Units 1 and 2), ALAB-146, 6 AEC 631, , C33-34 (1973); Northern States Power Company (Prairie Island Nuclear  : 

;                                                                          Cenerating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 190, 193,                                             i

, reconsideration denied, A L AB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC j "41 (1973). } An organization may gain standing to intervene based on injury to i 

!                                                                         itself.                          Edlew International Company,     CLI-70-6,     3 NRC 563, 572-74 i

I (1976). If tbc organization seeks standing on its own behalf, it must , f establish that it wfR be injured and that the injury is not a generalized 1 , j grievance shared in substantially equal measure by all or a large class of s i , i citizenu. Ten , Applications , CLI-77-24, supra , at 531. On the other  ; i j hcnd, an organi ntion may establish standing through members of the orgEn!zation who have an interest which may be affected by the outcome-  ; ! I j of the proceeding. Public Service Co. of Indiana, Inc. (Marble- Hill Nu- l i , l citar Genersting Station. Units 1 and 2), ALAB-322, 3 NRC 328, 330 r (1976). When an organization claims that its standing is based on the  ; i interests of its members, the organization must identify one or more indi- (

i vidual csembers (b'/ name and address) whose interests may be affected [

i { and give some concrete indication that such members have authorized the l 1 j organization to represent their interests in the proceeding. Houston { j Lighting,and Power Company (Allens Creek Nuclear Generating Station, Unit 1), AL AD-535, 9 NRC 377, 393-97 (1979); Public Service I I  : t Electric and Gas Cortpany (Salem Nuclear Generating Station , Units 1  ! f and 2), ALAD-136, 6 AEC 487, 488-89 (1973); Duquesne Light Company, _ ! f i i 

 ,                                             et cl. (Beaver Valley Power Station, Unit No.1), ALAB-100, 6 AEC 243,
   '44 at n.2 (1973).
     .                        Specific representatfortal authorization of a member with personal standing is not required wherc the sole or primary purpose of the petitioning organizatic,n is to oppose nuc! car power in general or the particular facility at bar. Allens Creek, ALAD-505, supra, at 396. 5,/
2. Pctitioners Must Meet the " Aspect" Requironcnts of 10 C.F.R. 6 2.714,,_ _

In addition to demonstrating " interest", a petitioner must set forth "the specilic aspect or aspcts of the subject matter of the proceeding as to which petitioner wishes to intervene." 10 C.F.R. S 2.714(a)(2). - While there is little guidance in NRC case law as to the meaning of "as-5/ 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 ey-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 tnembers, the member must demonstrate authorization by that organization to represent it. It is clear that groups may not represent persens other thEn their own members, and individuals may not assert the interest of other persons. Long Island Lighting Co. (Shorehon Nuclear Power Sta-tion , Unit 1), L B P-7 7-11, 5 NRC 461, 483 (1977); Watts Dar, A L A D-413, supra at 1421; Detroit Edison Company (Enrico Fermi Atcmic Power Plant, Unit No. 2), ALAU-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 cencrat. Port-land G eneral Electric Cc,mpany (Pebble Springs Nucient Plant, Units 1 and 2), ALAB-333, 3 NRC 804, 000 n.6 (1976); Long Isltnd Lighting Company, LRP-77-11, supra, at 483. 6/ 

   ~

10 C.F.E. S 7.714 also requires the petitioner to file " . . , a sup-plement to his petition to intervene whth must include a list of the tc,ntent!cns which petitioner 60eks to have Jitigated in the . matter, and the bases for each contention et forth with reasonable specific-ity." This section further provides: "A petitioner who falls to the such a supplernent which satisfies the requirements of this paragraph with respect to at least one contention will not be permitter'. to par-ticipate as a party.' The NRC staff will respond to the contentions set forth in the supplements af ter their roccipt. Acccrdingly, noth-(FOOTNOTE CONTINUED ON NLXT PAGE) 

    . ~. . . . _         _ _         .   .. _.    . .. __             . _ . _ . _._               _ . _ . . _ .

i a io . , i, i - i pect" as the term is used in 10 C.F.R. S 2.714, it appears that a peti- ) tioner noy satisfy this requirement by identifylag general potential effects -{ i of the licensing action or areas 'of concern which are within the scope of - ; natters that may be considered in the proceeding. U Sfg _North Anne, AI.A11-140, supra, at 633; Eetropolitan Edison Co. (Three title Island Nu- ! cient Station, Urit 1), Licensing Board "Metporandum and Order Ruling on , i Petitions and Setting Special Prehearing Conference", dated September 21, 

                                                                                                                          't 3

lil7D, slip. op. at 6 (unpublished Order).- , i j U. Fnaluation of the f/qth, ors For Peace Petiti_on ,

1. The pbthers f cr Peach intofest and Standing .

! The Petitioner sets forth its interest based on the general ar>scrtion { that its membert " ... are residents, property owners and tax payers j i  ! j living in Sen Luis Obispo County". Petition at 1 The injury asserted  ! q by the P(titioner is that ". . . the reracking of the spent fuel pools pose n thrcat to the health and safety of our families, our neighbora and our } l j ecmm unity. " d I_d_. While it appears that the petitioner will have no diffi - l ! t j culty estaldishing standin'g in the inctant proceeding as it has dono in the , e f I 1 1 I I 1 (FOOTNOTE CONT!!!UPD FJ10% PREVJGUS PAGE)  ; l ing said hereits by the Staff regarding a petitionor's "uspects" ic

intended to apply in any way to a petitioner's saticfaction of the 10 C.F,R, S 2.714 contention requirements,  !

1 i j 7_/ The subject matter of the proceeding, for purpoccs of -identification { 4 of " aspects" relates to the question cf public health and safety of - i the proposed action (issuance of the amendments) and not the proco-

dural determinatkn made by the Commission staff concerning whether

} or not the proposed action involves a "significant hazards consider-  ! l ation. " See, 48 Fed, Reg. 14864,14865 ( April 6,1950), i i 1 i I 4 1

pect" as the term is used in 10 C.F.R. 5 2.714. it appears that a peti-tioner muy 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. O See North Anna, A1,AD-146, s_upca, at 633; Metrcrolitan Edison Co. (Three Mile Island Nu-ele;ar Statiep, Unit 1), Licensing Board "Meinorandum and Order Ruling on Petitions and Sotting Spoeial Prehearing Conference", dated September 21, 1979, slip op. at 6 (unpublished Order), B, Evaluation of the Mothers For Peace Petition -

1. ]ichbtnernforPeachinterestandStanding The Petitioner scts forth its interest based on the general assertion that its membcts ". . . are residents, property owners and tax payers living in San IA.is Obispo County". Pelition at 1. The injury asserted by the Petitioner is that ". . . the reracking of the spent fuel pools pose a threat to the health and safety of our families, ont neighbora and our ,

comm unity. " M. While it appearn that the petitioner will have no diff1-culty eatsblishing standing in the jnstant proceeding as it has done in the operating ILeonse proceedir.g b the present a33erttons above are not 

   ~

7/ The subject matter of the proceeding, for purposes of identification of "npects" relates to the question of public health and safety of the proposed action (issuance of tbe amendments) and not the proce-dural determination made by the Commission staff concerning whether , or not the proposed action involves a "significant hazards consider-ation . " Se,e, 48 Fed, Reg. 14864,14865 ( April 6,19fd). Al 

   ~

Tite fact thni the Petitioner has been admitted Jn another proceeding concerning Djablo Canyon does not excuse its failure to demonetrate that the requircinents for intervention are inet for this proceeding. Its prior participation in a Diablo Canyon proceeding is not alone sufficient to estabilah its interest with regard to a beparate proceed- , ing for the seine facility. Lee Philadelphia Electric Co. (Pesch liot-(FOOTNOTE C011TINUED ON NEXT PAGE) d

L 6 S , 

                                      ' sufficient .to satisfy the criteria, identified above, for establishing the                                                                                                                       t interest and standing of organizations.                                             The petition has failed to estab-j                                         ilsh how the organization itself will be injured by the proposed action,
  • i i Edlow International Company. CLI-76-6, su pra , at 572-74; Ten Applica-  !

I tions , CLI-77-74, supra, at 531, nor does it, in the alternative, demon-strate ctanding through its members since it does not identify the address j of a single member who resides within close . proximity to the Diablo j Canyon Nuclear Power Plant (North Anna, ALAB-522, supra) and who has l authorized the Mothers for Peace to represent his or her interests in the  ! I proceeding. Allens Creek, ALAB-535, supra, at 393-97. The Petitioner can remedy these deficiencies by amending its petition f i to demonstrate standing either based on injury to the organization itself . 7 i j or based on the standing of one of its membcrs (i.e. the identificaticn of , i the address of a single member indicating residence within close proximity i 

                                                                                                                                                                                                                                          ?

to the Diablo Canyon facility, see North Anna, ALAB-522, supra, u a as well j t as the requisite authorization by such individual that the organization . t i represent his or her interest, see Allens Creek, ALAD-535, supra). In 4

light of the Petitioner's long and active participntion in the Diablo Canyon ,

1 operating !! cense proceeding the Staff would expect that the foregoing  ; l deficiencies can rendily be remedied.  ! j - i 1 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) ten Atomic Power Station Units 2 and 3), LDP-75-22, 1 NRC 451, 

!                                                           454-55 (1075); Wloconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), LBP-73-26, 6 AEC 612, 616 (1973).
    . . , ~ _ . . . . . - _ - , , _ _ . . - . . . - _ _ _ _
                                                                             - - , , _ . - . _ , . . _ . . . - . _ , - . _ . . . - - - , , - - - - - , . - . . , . . - _ . . , - _ _ _ . . . - - - - - , ,, _ , , - - - . - . , - . - , ~

7__

2. fipecific Aspects, cf the Sub'ect Matter of the Proceeding The Mothers of Peace petition has expressed a conecrn that falls within the scope of this proceeding, that is whether the .scissaic design of the spent fuel pool as modified by the proposa) is adequate. According-ly, the Staff finds that the petition filed on behalf of the Mothers for 1cacc does proper!r set fcrth a specific aspect of the propesed oaendtrents on which it wishce to intervene.

III. CONCLUSION Ter the reascus stated above, the NRC staff believes that the peti-tion for knve to intervene filed cn behelf of Mothers for Peace satisfies the "ospect" rc r uirements of 10 C.F.R. $ 2.714 but has felled to satisfy 4 the standing reo,uirements of la C.F.R. S 7.714. The Staff tirges, in y light of this defielency, that Mothers for Peace be given a reneonkble period cf time to cure this deficiency. Regretfully sthmitted, "f . ,/ ; 

                                                 . . ;;   ,' ll - ' u s a--

l'enry J. McGurren Coum el for E C Sitff Dited nt Dethesda, .Gryland this !7th day of Fchruary,1D86 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) tom Atomic Power Station, Units : cod 3), LBP-75-22, 1 NRC 451, 454-55 (1975); hisconsin Electric Povier Co. (PrAnt Beach flueleur Plant, Uritt 1), i.BP-73-26, 6 AEC 61?, CIC (1973).

__ _ .. .. _. _ _ _ . _ _ _ _. . ~_ . . _ . _ ._ _ . _ , i i l t UNITED STATES OF AMERICA 00tMate NUCLEAR REOULATORY COMMISSION u%RC ! t i 

                  - BEFORE THE ATOMIC SAFETY AND LICENSING . BOARD -N                                               .

in the Natter of ) FFICE 0; ., u , . , l ) UN 4 : Es ch  ! PACIFIC GAS AND ELECTRIC ) Docket Nos, 50-275 OLA 084Ch COMPANY ) 50-323 OLI' i ) [ d (Diablo Canyon Xuclear Power Plant ) Units 1 anti 2) ) e i i CERTIFICATE OF SERVICE ) i hereby certify that copies of " RESPONSE OF THE URC STAFF TO THE l PETITION FOR LEAVE TO INTERVENE FILED BY SAN LUIS ODISPO '. i XOTf!ERS FOR PEACE" in the abore-captioned proceeding have been j served on the following by deposjt in the United States mail, first class, . i or as indicated by an asterisk through deposit in the Nuclear Regulatory l { Commfasion's inte:rnal mail systec, this 27th day of February,1086: -l i  ; ] Olenn O. Bright, Esq.  ! , Administrative Judge Mr. Thomas li.11arrio, Energy Wrfter , ! Atomic Safety and Licensing Board San Jose Mercury News  ! l LI.S. Nuclear Ecgulatory Commission 750 Ridder Park Drive 1 Washington. D.C. :'0555* San Joso. CA 95190 , Dr. ,ierry Kline Mr. Gordon Silver ! Administrative Judge Mrs. Sandra A. 'illver ' 1 Atomic Safety and Licensing Doord 1760 Alisal Street i U.S. Nuc!cer Regulatory Commission Sstn Luis Obispo, CA 93401 { W6shington, D.C. 20555* t Arthur C. Getir, Esq. ] Elizabeth Apfelberg Snell t Wilmer  ! l 1415 Cozadero 3100 Valjey Center ' San Luis Obispo, CA 93401 Phoenix, AR 85073

flichard E. Blankenburg Philip A, Crane, Jr. , Isq, l Co ;>ublicher P.O. Box 7442 j Wayne A. Soroycn, News Reporter San Francisco. CA 94106 i South County Publishing Company i P.O. Box 460 Arroyo Grande. CA 93420 i Mr. Frederick Eissler Bruce Norton. Esq,  ;
Scenic Shoreline Preservation Norton. Burke, Derry & French, P,C,  ;

) Conference, Inc. 2002 E. Osborn Hond i

4623 More Mesa Drive P. O. Dox 10569 ' '7 i Santa Barbars, CA 93105 Phoenix, AZ 85064 1
         ,                                                      - 2 ,-
                                                                                                            +

Mrs. Raye Fleming Docketing and Service Section 

!                              1920 Mattie Road                     Office cf the Secretary

- Shell Beach, CA 92449 U.S. Nuclear Regulatory Commission Washington, D.C. 20555* $ Joel R. Reynolds, Esq. Atomic Safety and Licensing John R. Phillipt., Esq. 11oard Panel i Center for Law in the Public U.S, Nuclear Regulatory Commission Interest Washington, D.C. 20555* 10951 West Pico Doulevard 4 i Third Floor Atomic Safety and Licensing

oos Angeles, CA 00064 Appeal Board Panci (5) 1 U.S. Nuclear Regulatory Comtnission
;                              David S. Fleischaker, Esq.           Washington, D.C. 20555*

P. O. Box 1178 Oklahoma City, OK 73101 Mr. H. Daniel Nix }, California Energy Commission litchard B. liubbard MS-17 4 fil!B Technical Associates 1515 9th Street i 1723 IIsulfiton Avenue - Suite K Sacramento, CA 95814 San Jose, CA 95125 Lewis Shollenberger John Marrs, Managing Editor j Regional Counsel San Luis Obispo County - USNRC, Regicn V Telegram-Tribune

1450 Maria Lane, Suite 210 1321 Johnson Avenue Walnut Creek, CA 94506 P.O. Box 112

, San Luis Obispo, CA 03406 Janice E. Kerr. Esq. Ilarry M. Willis Lwrence Q. Carcia, Esq. Seymour L Willis 350 McAllister Streact 601 California St., Suite 2100 San Francisco, CA 04102 San Francisco, CA 94108 l Michael J. Strumwasser, Esq. Mr. J. D Shiffer Susan L. Durbin, Esy. Vice President j Peter 11. Kaufman, Esq. Nuclear Power Generation i 3580 Wilshire Blvd., Sulle 600 clo Nuclear Power Generation, Licensing i Los Angeles, CA 90010 Pacific Gas and Electric Company i 77 Beale Street, Room 1451 Mr. Lcc M. Gustafsc,n San Francisco, CA 94106 i Pacific Gas and Electric Co. 1050-17th Gtreet, N.W. Washington, DC 20036-5574 i 

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1 i II6ntf Jj; McGurren CounM for NRC Staff l I 4 4 1 

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