ML20154D558

Response Opposing Consumers Organized for Defense of Environ Safety & Sierra Club Petition for Leave to Intervene Re Util Request to Increase Spent Fuel Storage Capacity.W/Notice of Appearance & Certificate of Svc

ML20154D558
Person / Time
Site:	Diablo Canyon
Issue date:	03/03/1986
From:	Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#186-301 OLA, NUDOCS 8603060248
Download: ML20154D558 (14)

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March 3,1986 SNRC l l

UNITED STATES OF AMERICA  !

NUCLEAR REGULATOltY COMMISSION W -5 41:49 i

ilEFORE Tile ATOMIC SAFETY AND LICENSING llOARD t

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In the Matter of )  !

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PACIFIC GAS AND ELECTRIC ) Docket Nos. 50-275 OLA l COMPANY ) 50-323 OLA l i

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(Diablo Canyon Nuclear Power Plant )  !

Units 1 and 2) ) L I

j RESPONSE OF Tile NRC STAFF TO TIIE PETITIONS i

FOR LEAVE TO INTERVENE FILED DY CONSUMERS ORGANIZED  !

f FOR DEFENSE OF ENVIRONMENTAL SAFETY AND Tile SIERRA CLUD I. INTRODUCTION 1 l

On January 13, 1986, the Nuclear Regulatory Commission published in the Federal Register ($1 Fed. Reg. 1451) a notice entitled "Consi- f deration of Issuance of Amendments to Facility Operating Licenses DPR-80 j and DPR-82 for Diablo Canyon Nuclear Power Plant, Units 1 and 2, Re-spectively, and Proposed No Significant llazards Consideration Determina- l tion and Opportunity for llearing" concerning the request by Pacific Gas I

and Electric Company (Licensee) for amendments to Facility Operating j License Nos. DPR-80 and DPR-82 which would authorize the Licensee to increase the Diablo Canyon Nuclear Power Plant. Unit I and Unit 2 spent fuel storage capacity from 270 to 1324 storage locations for each unit. In  !

response to this notice Consumers Organized for Defense of Environmental (

Safety (CODES) and the Sierra Club Santa Lucia Chapter (Sierra Club) l I

filed timely petitions for leave to intervene. The Staff's response to these petitions is set forth below.

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II. DISWSSKN 1

A. 'Ihe Standards for Intervention

1. l'etitioners huat Meet the " Interest" Ilequiresnents i

of 10 C.F.II.S 2.714 Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 5 2239(a), provides that:

In any proceeding under [the] Act, for the granting, sus-pendin g , revoking, 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(n)(2) of the Commission's Ruten of Practice, 10 C.F.R. 5 0.714(a)(2), requires that n petition to intervene in a Commission pro-ceeding set forth with particularity:

(1) the interest of the petitioner in the proceeding s (2) how that interest may be affected by the results of the proceeding; and (3) the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.

In order for intervention to be granted, the Atomic Safety and Licensing floard designated to rule on petitions to intervene and/or requests for j hearing must find that the petition antisfies these standards. O In determining whether the requisite interest prescribed by both Section 189a of the Atomic Energy Act and Section 2.714 of the Commis-1

-1/ Intervention may also be granted as a matter of discretion to a pett-tioner who is not entitled to intervention as a matter of right if the petitioner can show that the Commission's specific criterin weigh in favor of discretionary Intervention. See Portland General Electric

Com pany, et nl. (Pobble Springs Nucle ~ r Plant, Units 1 and 2),

CLl-70-27. TNltC 610, 610 (1976). Since, the Instant petitioners have not addressed these criterla, which is their burden (Nuclear (

Engineering Company (Sheffield, !!!!nois, Low-Level Itadiation Waste '

Disposal Site), AL All-473, 7 NRC 737, 745 (1978)), discretionary intervention will not be discussed further.

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! sion's Ilules of Practice is present, the Commission has held that contem-poraneous judicial concepts of standing are controlling. Portland General Electric Co. (Pobble Springs Nuclear Plant, Units 1 and 2), CLI-7G-27, 4 NIIC C10, 613-14 (197G). Thus, there must be a showing (1) that the action being challenged could cause " injury-in-fact" to the person seeking n

to intervene *j and (2) that such injury is arguably within the " zone of interests" protected by the Atomic Energy Act -

of the National Environmental Policy Act. O d I_d. See also_ Warth v. Seldin, 422 U.S. 400 (1975); Sierra Club v. Morton, 405 U.S. 727 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970). Close proximity of a petitioner's residence, standing alone, is sufficient to satisfy the interest requirements. Virginia Electric

and Power Company (North Anna Nuclear Power Station, Units 1 and 2),

i f ALAll-522, 9 NIIC 54, 56 (1979).

An organization may gain standing to intervene based on injury to itself. Edlow International Company, CLI-70-6, 3 NitC 503, 572-74 (1976). If the organization seeks standing on its own behalf, it must l -2/ " Abstract concerns" oa a "more 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 I,ow-Enriched Uranium Txports to EUltATOM Member Nations, Cl.1-77-24, 6 NIIC 525, 531 (1977); Pebble Springs, Cl.1-76-27, su-

pra, 4 NitC at 613. Itather the asserted harm must have some par-l ticLlar effect on a petitioner, Ten Applications, C I,1 24, supra ,

and a petitioner must have some71 rect stake in the outcome iif tIIe

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i proceeding. See Allied-General Nuclear Services, et al. (llarnwell Fuel iteceiving and Storage Station) . AI, A11-328, 3~fG C 420, 422 (1970).

i 3] 42 U.S.C. 5 2011 g sc3 4/ 42 U.S.C. 6 4321 et seg.

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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 citizens. Ten Applications , CLI-77-24, sug, 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 outcomo of the proceeding. Public Service Co. of Indiana, Inc. (Marble lill! Nu-j clear Generating S tation , Units 1 and 2), Al, A11-322, 3 NitC 328, 330 (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 (by 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.

llouston Lighting and Power Company ( Allons Creek Nuclear Generating S tation , Unit 1), ALAU-535, 9 NitC 377, 303-97 (19"D): Public Servico Electric and Gas Company (Salem Nuclear Generating Station, Units 1 and 2), AL AH-136, 6 AEC 487, 488-80 (1973): Duquesne Light Company, et al. (fleaver Valley Power Station, Unit No.1), AI.All-100, 6 AEC 243, i

244 at n.2 (1973). Specific representntional authorization of a member with personal standing is not required where the solo or primary purpose of the petitioning organization is to oppose nuclear power in general or the particular facility at bar. Allens Crock, ALAll-535, supy, at 396. 5_/

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Further, under Section 2.713 of the Commission's llules of Practice,

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a " partnership, corporation or unincorporated association may bc ,

represented by a duly authorized member or offleer, or by an attor-e ne y-a t-la w. " 10 CT. 11. 5 2.7f3Tb) (emphasis added). Thus, whero l an organization is represented by one of its members, the member l

must demonstrate authorization by that organization to represent it.

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l 2. Petitioners Must Meet the " Aspect" Itequiranents l of 10 C.F.It. S 2.714 in addition to demonstrating " interest", a petitioner must set forth l

l "the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene." 10 C.F.It. 5 2.714(a)(2). O While there is little guidance in NltC case law as to the meaning of

" aspect" n the term is used in 10 C.F.It. $ 2.714, it appears that a po-I titioner may satisty this requirement by identifying general potential of-fccts of the lleensing action or areas of concern which are within the scope of matters that may be considered in the proceeding. b See (FOOTNOTE CONTINUED FitOM PitEVIOUS PAGE)

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. (Shoreham Nuclear Power Sta-tion , Unit 1), Lil P-7 7- 11, 5 NitC 481, 483 (1977): Watts lia r.

ALAD-413, supra u at 1421: Detroit Edison Company (Enrico Fermi Atomic Power i lTant, Unit No. 2), ALAll-470, 7 NitC 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 (Pobble Springs Nuclear Plant,

. Units 1 and 2), ALAll-333, 3 NitC 804, 806 n.6 (1976): Long Island l Lighting Company, LilP-77-11, supra, at 483.

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~ 10 C.F.II. 5 2.714 also requires the petitioner to file " . . . a sup-I 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 falla to file such a supplement which natisfies the requirements of this paragraph with respect to at least one contention will not be permitted to par-ticipate ns a party." The NitC staff will respond to the contentions f set forth in the supplements after their receipt. Accordingly, noth-ing said horcin by the Staff regarding a petitioner's " aspects" is intended to apply in any way to a petitioner's satisfaction of the 10 C.F.It. S 2.714 contention requirements.

y The subject matter of the proceeding, for purposes of identification of " aspects" relates to the question of public health and safety of l

(FOOTNOTI: CONTINUED ON NEXT PAUL:)

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! North Anna, ALAB-146, supra, at 633; Metropolitan Edison Co. (Three

Mile Island Nuclear Station, Unit 1), Licensing Board " Memorandum and l

Order Ruling on Petitions and Setting Special Prehearing Conference",

I j dated September 21, 1979, slip. op. at G (unpublished Order).

( B. Eva1 nation of (IEES Petition i 1.- (IELS Interest and Standing l Consumers Organized for Defense of Environmental Safety (CODES) has petitioned for leave to intervene on its own behalf and on behalf of its members. The injury alleged by CODES on its own behalf is based on its " . . . long term interest in the safety and costs of Diablo Canyon to j

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the ratepayers, members of the community, residents and business of the San Luis Obispo area." Petition at 1. As to its members, CODES asserts that the proposed action could cause personal and property damage to its members "[a ls residents, property owners , ratepayers, taxpayers and workers in an aree. impacted by the facility." Petition at 1. These gen-eralized assertions of injury are insufficient to satisfy the criteria, identi-fled above, for establishing the interest and standing of organizations.

Edlow International Company, CLI-76-6, supra, at 572-74; Ten Applications , CLI-77-24, supra , at 531. Further, the petition does not demonstrate standing through its members since it does not identify the address of at least one member who resides within close proximity to the Diablo Canyon Nuclear Power Plant (North Anna, ALAB-522, supra) and (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) >

the proposed action (issuance of the amendments) and not the procc-dural determination made by the Commission staff concerning whether or not the proposed action involves a "significant hazards consider-ation . " See 48 Fed. Reg. 14864,14865 ( April 6,1983).

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who has authorized CODES to represent his or her interest in the pro-ccedin g. 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 (eg. the identification of the address of at least one member indicating residence within close prox-imity 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).

Until such showing is made, CODES petition is defective.

2. Specific Aspects of the Subject Matter of the Proceeding CODES petition has expressed two concerns that fall within the scope of this proceeding; they are whether the seismic design of the spent fuel pool as modified by the proposal is adequate and whether adequate con-sideration has been given to the possibility of human error and its conse-quences. Petition at 1, 2. Accordingly, the Staff finds that CODES petition does properly set forth a specific aspect of the proposed amend-ments on which it wishes to intervene.

C. Evaluation of the Sierra Club Petition

1. Sierra Club Interest and Standing The Santa Lucia Chapter of the Sierra Club (" Sierra Club") has also petitioned for leave to intervene on its own behalf and on behalf of its members. With respect to injury to itself, the Sierra Club asserts its l ... long-standing concern with the safety of the power plant facili-ties . " Petition at 1. With respect to its members, the Sierra Club alleg-es that the personal health and safety of its members and their families is endangered and that its members, as property owners and business

i operators in San Luis Obispo County, would suffer considerable financial losses if the amendments were approved. Id. These generalized asser-tions of injury are insufficient to satisfy the criteria, identified above, for establishing the interest and standing of organizations.

Edlow International Company, C L I-76-G , supra , at 572-74; Ten Applica-tions , CLI-77-24, supra, at 531. Further, the. petition does not demon-strate standing through its members since it does not identify the address of at least one member who resides in within close proximity to the Diablo Canyon Nuclear Power Plant (North Anna, ALAU-522, supra) and who has authorized the Sierra Club to represent his or her interest in the pro-ceeding. Allens Creek, ALAU-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 (eg. the identification of the address of at least one member indicating residence within close prox-imity to the Diablo Canyon facility, see North Anna, ALAB-522, supra, as well as the requisite authori::ation by such individual that the organization represent his or her interest, see Allens Creek, ALAB-535, supra).

Until such showing is made, Sierra Club's petition is defective.

2. Specific Aspects of the Subject Matter of the Proceeding Sierra Club's petition has expressed two concerns that fall within the scope of this proceeding ; they are whether adequate consideration has been given to the consequences of a " seismic event" in light of the pro-posed amendments and whether adequate consideration has been given to the consequences of a loss of spent fuel cooling in light of the proposed amendments. Petition at 1. Accordingly, the Staff finds that the Sierra

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Club petition does properly set forth a specific aspect of the proposed amendments on which it wishes to intervene.

111. CONCLUSION For the reasons stated above, the NRC staff believes that the peti-tions for leave to intervene filed on behalf of CODES and the Sierra Club satisfy the " aspect" requirements of 10 C.F.R. S 2.714 but have failed to satisfy the standing requirements of 10 C.F.R. S 2.714. The Staff notes that these organizations may seek to cure these deficiencies consistent with 10 C.F.R. S 2.714(a)(3).

Respectfully suhnitted, W ~

Ien v .I rren Coun e for NRC Staff Dated at Bethesda, Maryland this 3rd day of March, 1986 4

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00CMETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION

, BEFORE Tile ATOMIC SAFETY AND LICENSING EAM-5 41 :49 in the Matter of 0FFig i(, .7.:

PACIFIC GAS AND ELECTRIC ) Docket Nos. 50-275 OLA COMPANY ) 50-323 OLA ,

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(Diablo Canyon Nuclear Power Plant )  ;

Units 1 and 2)

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NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an l appearance in the above-captioned matter. In accordance with S 2.713(b),  !

! 10 C.F.R., Part 2, the following information is provided:

4 Name: llenry J. McGurren i

Address: U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, D.C. 20555 Telephone Number: (301) 492-7267 Admissions : Supreme Court of the United States United States District Court for the District of Columbia  ;

Supreme Court of the State of Illinois <

i Names of Party NRC Staff Respectfully submitted, 4

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llenr(U. McGurren Counserfor NRC Staff l

, Dated at Bethesda, Maryland this 3rd day of March,1986

9 DOCKETED

. UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION DEFOI(E TIIE ATOMIC SAFETY AND LICENSING DOAIN MR -5 #1 :49

-. .. ; W In the Matter of ) 0FFi {dl

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) 00C ggggy PACIFIC GAS AND ELECTRIC ) Docket Nos. 50-275 OLA COMPANY ) 50-323 OLA

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(Diablo Canyon Nuclear Power Plant )

Units 1 and 2) )

NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter. In accordance with S 2.713(b),

10 C.F.R., Part 2, the following information is provided:

Name: Lawrence J. Chandler Address: U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, D.C. 20555 Telephone Number: (301) 492-8658 Admissions : Supreme Court of the United States United States Court of Appeals for the District of Columbia i United States District Court )

for the District of Columbia -

District of Columbia Court of Appeals Names of Party NRC Staff Respectfully submitted, Wh A' La'wrence J. Chandler Special Litigation Counsel Dated at Bethesda, Maryland this 3rd day of March,1986

DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 16 IWLR -5 #1 :50

t ~ BEFORE Tile ATOMIC SAFETY AND LICENSING 110ARD In the Matter of ) 0FF U

) 00C gggge PACIFIC GAS AND ELECTRIC ) Docket Nos. 50-275 OLA COMPANY ) 50-323 OLA

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(Diablo Canyon Nuclear Power Plant )

Units 1 and 2) )

CERTIFICATE OF SERVICE 1 hereby certify that copies of " RESPONSE OF TIIE NRC STAFF TO TIIE PETITIONS FOR LEAVE TO INTERVENE FILED BY CONSUMERS ORGANIZED FOR DEFENSE OF ENVIRONMENTAL SAFETY AND TIIE SIERRA CLUB" and " NOTICES OF APPEARANCE" for IIenry J. McGurren and Lawrence J. Chandler 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 3rd day of March,1986:

Glenn O. Bright, Esq.

Administrative Judge Mr. Thomas II. 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. Nuclear Regulatory Commission San Luis Obispo, CA 93401 Washington, D.C. 20555*

Arthur C. Gehr, Esq.

Elizabeth Apf elberg 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

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Mr. Frederick Eissler Bruce Norton, Esq.

Scenic Shoreline Preservation Norton, Burke, Berry & French, P.C.

Conference, Inc. 2002 E. Osborn Road 4823 More Mesa Drive P. O. Box 10569 Santa Barbara, CA 93105 Phoenix, AZ 85064 Mrs. Raye Fleming Docketing and Service Section 1920 Mattie Road Office of the Secretary Shell Beach, CA 93449 U.S. Nuclear llegulatory 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 90064 Appeal Board Panel (5)

U.S. Nuclear Regulatory Commission David S. Fleischaker, 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 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. Ilarry M. Willis Lawrence 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 II. Kaufman, Esq. Nuclear Power Generation 3580 Wilshire Blvd., Suite 600 c/o Nuclear Power Generation, Licensing Pacific Gas and Electric Company Los Angeles, CA 90010 77 Beale Street, Room 1451 San Fransicso, CA 94106

l Dr. Richard Ferguson Laurie McDermott, Co-ordinator Vice-Chairman C.O.D.E.S Sierra Club 731 Pacific Street Rocky Canyon Star lloute Suite # 42 Creston, CA 93432 San Luis Obispo, CA 93401 Mr. Lee M. Gustafson Pacific Gas and Electric Co.

1050-17th Street, N.W.

Washington, DC 2003G-5574 i

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'. N cGurren Counse for NRC Staff 4

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