ML20211D717

NRC Staff Response to Petition to Intervene Filed by New England Coalition on Nuclear Pollution.* Petition Satisfies Aspect Requirements of 10CFR2.714 But Petitioner Should Be Given Time to Correct Deficiency Re Standing Requirements

ML20211D717
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	02/18/1987
From:	Hodgdon A NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20211D721	List: ML20211D717 ML20211D733 ML20211D759
References
CON-#187-2557 OLA, NUDOCS 8702240104
Download: ML20211D717 (9)

Text

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. 1559 DCLKETEP UPIM UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 FE8 20 A10:27 BEFORE TIIE ATOMIC SAFETY AND LICENSING BOARD Coc h In the Matter of )

)

Vermont Yankee Nuclear Power ) Docket No. 50-271-OLA Power Corporation )

)

(Vermont Yankee Nuclear Power )

Station)

NRC STAFF RESPONSE TO PETITION TO INTERVENE FILED BY NEW ENGLAND COALITION ON NUCLEAR POLLUTION I. INTRODUCTION On December 31, 1986, the Nuclear Regulatory Commission published in the Federal Register (51 Fed. Reg. 47,324) a notice entitled " Vermont Yankee Nuclear Power Corp. ; Consideration of Issuance of Amendment to Facility Operating License and Proposed No Significant IIarards Consider-ation Determination and Opportunity for Hearing." The notice concerned Vermont Yankee Nuclear Power Corporation's (the Licensee) April 26, 1986 application for an amendment to its operating license for the Vermont Yankee Nuclear Power Station, located in Vernon, Vermont. The pro-

! posed amendment would revise the Vermont Yankee Technical Specifica-tions to authorize the Licensee to increase the storage capacity of the spent fuel pool from 2000 fuel assemblies to 2870 assemblies.

The notice also stated that on June 18, 1986, the Commission had issued a Bi-weekly Notice of Applications and Amendments to Operating Licenses Involving No Significant Hazards Considerations (51 Fed. Reg.

22,226), which included notice concerning the proposed amendment of the Vermont Yankee license. The notice of June 18, 1986 included the 8702240104 870218 hjd 7 PDR ADOCK 05000271 g PDR

o Commission's proposed determination that the requested amendment in-volved no significant hazards considerations, offered an opportunity for comments on the Commission's proposed determination and offered an op-portunity for the Licensee to request a hearing on the amendment and for persons whose interest might be affected to petition for leave to inter-vene. It failed, however, to provide the notice required by the Commis-sion's regulation implementing Section 134 of the Nuclear Waste Policy Act of 1982, i.e. 10 C.F.R. I 2.1107. Section 2.1107 requires that the notice of proposed action published in the Federal Register concerning an appli-cation for an amendment to allow expansion of spent fuel pool storage capacity identify the availability of hybrid hearing procedures. The Com-mission's notice of December 31, 1986 supplied the information regarding hybrid hearing procedures required by 10 C.F.R. I 2.1107 and stated that any person whose interest might be affected and who wished to in-voke the hybrid hearing procedures should file a written petition for leave to intervene.

On January 29, 1987, New England Coalition on Nuclear Pollution (NECNP) filed a " Request for llearing and Petition to Intervene" (peti-tion) . The NRC staff's response to NECNP's petition is set forth below.

II. DISCUSSION NECNP petitions for a hybrid hearing. The requirements of 10 C.F.R. I 2.714 are opplicable to hybrid hearings. 10 C.F.R.

I 2.1107 Only parties may request the hybrid hearing procedures, 10 C.F.R. I 2.1107; however, NECNP's rec,uest is pursuant to the Com-mission's renotice of December 31, 1986, limiting timelv requests to those seeking to invoke the hybrid procedures.

. A. The Standards for Intervention

1. The " Interest" Recuirements of 10 C.F.R. 9 2.714 Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. I 2239(a), provides that:

In any proceeding under (the] Act , for the granting, suspending, 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 pro-ceeding, and shall admit any such person as a party to such proceeding.

Section 2.714(a)(?) of the Commission's Rules of Practice, 10 C.F.R.

I 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 proceedings (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

[ Board designated to rule on petitions to intervene and/or requests for ,

hearing must find that the petition satisfies these standards, b In determining whether the requisite interest prescribed by l

l both Section 189a of the Atomic Energy Act and Section 2.714 of the Com-l

-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 Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, l 4 NRC 610, 616 (1976). Since NECNP has not addressed these crite-i ria, which is its burden (Nuclear Engineering Company (Sheffield, l Illinois, Low-Level Radiation Waste Disposal Site), ALAB-473, 7 NFC 737, 745 (1978)), discretionary intervention will not he discussed further.

mission's Rules of Practice is present, the Commission has held that con-temporaneous judicial concepts of standing are controlling. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),

CL1-76-27, 4 NPC 610, 613-1d (1976). Thus, there must be a showing (1) that the action being chs11enged could cause " injury-in-fact" to the person seeking to intervene U and (2) that such injury is arguably within the " zone of interests" protected by the Atomic Energy Act3 _/ ,,

the National Environmental Policy Act. O Id. See also, Warth v. Seldin, 422 U.S. 490 (1975); Sierra Club v. Morton, 405 U.S. 727 (1972);

Association of Data Processing Service Organizations v. Camp, 397 U.S.

150, 153 (1970).

The Appeal Board has ruled that the close proximity of a peti-tiener'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), ALAB-522, 9 NRC 54, 56 (1979). Though no firm outer boundary for this zone of interest has been determined, distances of up to 50 miles have been accepted by the Appeal Board as conferring standing upon particular petitioners. See, e.g.,

~

2/ " Abstract concerns" or a " mere academic interest" in the matter which are not accompanied by some real impact on a petitioner will not confer standing. See, Exxon Nuclear Company (Ten Applications for Low-Enriched Uranium Exports to EURATOM Member Nations)

CLI-77-24, 6 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, su ra, and a petitioner must have some direct stake in the outcome o i te proceeding. See, Allied-General Nuclear Services (Barnwell Fuel Receiving and Tf5 rage Station), ALAB-328, 3 NRC 420, 422 (1976).

3/ 42 U.S.C. I 2011 et seq.

4/ 42 U.S.C. 5 4321 et seq.

. Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2),

ALAB-413, 5 NRC 1418, 1421 at n.4 (1977); g. Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), ALAB-146, 6 AEC 631, 633-34 (1973); Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 190, 193, reconsideration denied, A LAD-110. 6 AEC 247, aff'd , CLI-73-12, 6 AEC 241 (1973).

An organization may gain standing to intervene based on injury to itself. Edlow International Company, CLI-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 e large class of citizens. Ten Applications, CLI-77-24, supra, at 531. On the other hand, an organization may establish standing through members of the organization who have an interest that may be affected by the outcome of the proceeding. Public Service Co. of Indiana (Marble 11111 Nuclear Gen-erating Station, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976). An I organization claiming that its standing is based on the interests of its l

members must identify one or more individual members (by name and ad-dress) whose interests may be affected and give some concrete indication that such members have authorized the organization to represent their l 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 Nu--

clear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 488-89 (1973); Dusquesne Light Company (Beaver Valley Power Station , Unit No . 1) , ALAB-109, 6 AEC 243, 244 at n.2 (1973). Specific l _ -.

j representational authorization of a member with personal standing is not i required where the sole or primary purpose of the petitioning organization

! is to oppose nuclear power in general or the particular facility at bar.

Allens Creek, ALAB-535, supra . at 396. 5/

2. The " Aspect" Requirements of 10.C.F.R. I 2.714 In addition to demonstrating " interest", a petitioner must set forth "the specific aspect or asnects of the subject matter of the proceed-1 ing as to which petitioner wishes to intervene. " 10 C.F.R.

I 2.714(a)(2). 6_/ While there is little guidance in NRC case law l concerning the meaning of " aspect" as the term is used in 10 C.F.R.

-5/ Further, under Section 2.713 of the Commission's Rules of Practice, l

a " partnership, corporation or unicorporated association may be rep-resented by a duly authorized member or officer, or by an attor-ney-at-law". 10 C .F. R . 5 2.713(b) (emphasis added). Thus, where

! an organization is represented by one of its members, the member

must demonstrate authorization by that organi

:ation to represent it.

i It is clear that groups may not represent persons other than their

! own members, and individuals may not assert the interest of other l persons. Long Island Lighting Co. (Shoreham Nuclear Power Sta-tion , Unit 1), LB P-77-11, 5 NRC 481, 483 (1977); Watts Bar, ALAB-413, sAu ra 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 MRC 804, 806 n.6 (1976); Long Island Light-ing Company, LBP-77-11, supra, at 483.

~

6/ 10 C.F.R. I 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 falls to file l such a supplement which satisfies the requirements of this paragraph l 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-l ing said herein by the Staff regarding the petitioners " aspects" is

( intended to apply in any way to satisfaction of the 10 C.F.R.

I 2.714 contention requirements.

i

5 2.714, it appears that a petitioner 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. U See, North Anna, ALAB-146, supra, at 633; Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), Li-censing Board " Memorandum and Order Ruling on Petitions and Setting Special Prehearing Conference", dated September 21, 1979, slip op. at 6 (unpublished Order).

t B. NECNP's Petition

1. Interest and Standing NECNP sets forth its interest by asserting that approximately one hundred of its 450 members live in the Battleboro-Putney area and that over fifty of the membe rs live within ten miles of the Vermont Yankee Nuclear Power Station. Petition at 4. Regarding injury to its members , NECNP states that the health and safety of these members in particular would be jeopardized by the requested amendment. d.

NECNP's cesertions regarding the interest of its members and the alleged injury to those interests shoulu the application be granted are not suffi-cient to satisfy the criteria, f(entified above, for establishing the interest and standing of organizations. NECNP fails to establish how the organ-ization itself will be injured by the proposed action. Edlow Inter-national Company, CLI-70-6, supra, at 572-74; Ten Applications, a

a

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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 procedural determination made by the Commission staff concerning whether or l not the proposed action involves a "significant hazards considern-l tion . " See, 48 Fed. Reg. 7744 (March 6,1986).

. C LI-77-24, supra, at 531. Nor does it, in the alternative, demonstrate s standing through its members, since it .does not identify the name and address of a single member who resides within close proximity of the Ver-mont Yankee Nuclear Power Station (North Anna, ALAB-522, supra) and who has authorized NECNP to represent his or her interests in the proceeding. Allens Creek, ALAB-535, supra, at 393-97.

NECHP 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 member (i.e. the identification of the name and address of a single member indicating residence within close proximity to the Vermont Yankee facility; see, North Anna, ALAB2522, supra, as well as the requisite authorization by that individual that NECNP represents his or her interest). 8_/ See, Allens Creek, ALAD-535, supra).

2. Specific Aspects of the Subject 1'latter of the Proceeding NECNP's petition identifies an aspect of this proceeding on which it wishes to intervene. That aspect concerns "the increased risk to public health and safety asrociated with more tightly packing the fuel assemblies in the pool, the increased potential for o radioactive release 8/

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It appears that NECNP may be able to establish standing in the in-stant proceeding since it was admitted as an intervenor in the pro-ceeding conducted on the licensee's previous application for an amendment to expand its spent fuel pool capacity by re-racking.

The fact that NECNP has been admitted in another proceeding does not excuse its failure to demenstrate that the requirements for inter-vention are met for this proceeding. Its prior participation is not sufficient to establish its interest with regard to a separate proceed-ing for the same facility. See, Philadelphia Eiectric Co. (Peach Bot-tom Atomic Power Station, Tnits 2 and 3), LBP-75-22, 1 NRC 451, 454-55 (1975); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), LDP-73-26, 6 AEC 612, 616 (1973).

_ _ . . .. . )

,/ I

. >- frcm the pool associated with a reactor accident, and the great increase in potential accident consequences caused by a 40% increase of radioactive

". Inventory, most significantly Cesium, in the pool." Petition at 5. Ac-cordingly, the Staff believes that NECNP's petition properly sets forth a specific aspect of the proposed amendment on which it wishes to intervene, III. CONCLUSION For the reasons stated above, the NRC staff believes that NECNP's petition for leave to intervene satisfies the " aspect" requirements of 10 i

C.F.R. I 2.714 but fails to satisfy standing requirements. The Staff urges that NECNP be given a reasonable period of time to cure this deficiency.

Respectfully subnitted,

.- ] cc s t, J j (Ltv a .

(

Ann P. Hodgdon

Counsel for FPC Staff Dated at Bothesda, Maryland this 18th day of February,1987 i

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