ML20215C469
| ML20215C469 | |
| Person / Time | |
|---|---|
| Site: | Humboldt Bay |
| Issue date: | 10/06/1986 |
| From: | Locke R PACIFIC GAS & ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1018 86-536-07, 86-536-7, OLA, NUDOCS 8610100297 | |
| Download: ML20215C469 (11) | |
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UNITED STATES OF AMERICA g g pj gj NUCLEAR REGULATORY COMMISSION 3 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD.c[ CF 3[G' ;C Y 00 N m'i^ ' NU-13P/.T '
4 In the Matter of )
5 )
PACIFIC GAS AND ELECTRIC COMPANY ) Docket No. 50-133*# M g ) (Decommissioning)
(Humboldt Bay Power Plant, ) ASLBP No. 86-536-07 LA Unit No. 3 )
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ANSWER OF PACIFIC GAS AND ELECTRIC COMPANY TO PETITION TO 10 INTERVENE IN LICENSE AMENDMENT PROCEEDINGS OF THE LEAGUE OF WOMEN VOTERS OF HUMBOLDT COUNTY AND GAYE M. BARR 11 12 I. INTRODUCTION 13 On July 5, 1986, the Nuclear Regulatory Commission 14 published in the Federal Register (51 Fed. Reg. 24458) a 15 " Notice of Opportunity for Prior Hearing: Decommissioning of 16 Humboldt Bay Power Plant, Unit No. 3" concerning the request by 77 Pacific Gas and Electric Company (" Licensee") for amendments to 18 Facility Operating License No. DPR-7 which would: (1) delete yg certain license conditions required by the " Order for Modifica-20 tion of License" issued on May 21, 1976; (2) approve the 21 Humboldt Decommissioning Plan; (3) revise the technical speci-22 fi ations to reflect the permanent shutdown and possess-but-23 n t-operate status of the facility; and (4) extend License 24 DPR-7 for 15 additional years from November 9, 2000 to November 9, 25 2015, to be consistent with the Decommissioning Plan. The Notice established August 4, 1986 as the deadline for filing a 26 i
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1 request for hearing and petition for leave to intervene. On 2
September 19, 1986, the League of Woman Voters of Humboldt 3
County and Gaye M. Barr filed a petition for leave to intervene 4
in these proceedings. PGandE's response to this petition is 5
set forth below.
6 II. DISCUSSION 7
A. The Standards for Intervention O
- 1. Petitioners Must Meet the " Interest" g Requirements of 10 C.F.R. S 2.714 0 Se tion 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. S 2239 (a) , provides that:
g In any proceeding under [the] Act, for the granting, suspending, revoking, or amending 13 of any license . . . the Commission shall grant a hearing upon the request of any g person whose interest may be affected by the proceeding, and shall admit any such 15 Person as a party to such proceeding.
6 Section 2.714 (a) (2) of the Commission's Rules of Practice, 10 g C.F.R. S 2.714 (a) (2) , requires that a petition to intervene in 18 a Commission proceeding set forth with particularity:
e the interest of the petitioner in the 19 proceeding; 20 e how that interest may be affected by the results of the proceeding; and 22 23 1
24 In response to this notice, the Redwood Alliance, Douglas II . Bosco, Wesley Chesbro, Daniel E. Hauser, and Barry Keene file a timely petition for leave to intervene.
25 26 1 e the specific aspect or aspects of the subject matter of the proceeding as to 2 which petitioner wishes to intervene.
3 In order for intervention to be granted, the Atomic Safety and 4 Licensing Board designated to rule on petitions to intervene 5 and/or requests for hearing must find that the petition sat-6 isfies these standards.
7 In determining whether the requisite interest pre-8 scribed by both Section 189a of the Atomic Energy Act and 9
Section 2.714 of the Commission's Rules of Practice is shown 10 contemporaneous judicial concepts of standing are controlling.
11 Portland General Electric Co. (Pebble Springs Nuclear Plant, 12 Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976). Thus, 13 there must be a showing (1) that the action being challenged 14 could cause " injury-in-fact" to the person seeking to intervene 2
15 and (2) that such injury is arguably within the " zone of 10 interests" protected by the Atomic Energy Act and the National 17 Environmental Policy Act. Id. See also Warth v. Seldin, 422 18 19
" Abstract concerns" or a " mere academic interest"-in the 20 matter which are not accompanied by some real impact on a petitioner will not confer standing. Pebble Springs, 3 CLI-76-27, supra, 4 NRC at 613. Rather the asserted harm must g have some particular effect on a petitioner, and a petitioner must have some direct stake in the outcome of the proceeding.
See Allied-General Nuclear Services, et al. (Barnwell Fuel 23 Receiving and Storage Station), ALAB-328, 3 NRC 420, 422 g (1976).
42 U.S.C. S 2011 et seg.
25 4
42 U.S.C. S 4321 et seg.
26 l 3
7 .
4 1 U.S. 490 (1975) ; . Sierra Club v. Morton, 405 U.S. 727 (1972);
2 Association of Data Processing Service Organizations, Inc. v.
3 Camp, 397 U.S. 150, 153 (1970). Close proximity of a petition-4 er's residence, standing alone, is sufficient to satisfy the 5
interest requirements. Virginia Electric and Power Company 6
(North Anna Nuclear Power Station, Units 1 and 2) , ALAB-522, 9 7 NRC 54, 56 (1979).
8 While an organization may gain standing to intervene 9
based on injury to itself, Edlow International Company, CLI-76-6, 10 3 NRC 563, 572-74 (1976), it must establish that it will be 11 injured and that the injury is not a generalized grievance 12 shared in substantially equal measure by all or a large class 13 of citizens. Transnuclear, Inc., CLI-77-24, 6 NRC 525, 531
! 14 (1977). On the other hand, an organization may establish 15 standing through members of the organization who have an 16 interest which may be affected by the outcome of the pro-17 ceeding. Public Service Co. of Indiana, Inc. (Marble Hill 10 Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 19 328, 330 (1976). When an organization claims that its standing 20 is based on the interests of its members, the organization must 21 identify one or more individual members (by name and address) 22 whose interests may be affected and give some concrete indic-23 ation that such members have authorized the organization to 24 represent their interests in the proceeding. Houston Lighting 25 and Power Company (Allens Creek Nuclear Generating Station, 26 Unit 1), ALAB-535, 9 NRC 377, 393-97 (1979); Virginia Electric l
and Power Company (North Anna Nuclear Power Station, Units 1 2
and 2), ALAB 536, 9 NRC 402, 404 (1979) ; Duquesne Light Company, et al. (Beaver Valley Power Station, Unit No. 1) , ALAB-109, 6 4
AEC 243, 244 at n.2 (1973). Specific representational author-n
~
ization of a member with personal standing is not required 6
where the sole or primary purpose of the petitioning orga-7 nization is to oppose nuclear power in general or the particular 0
facility at bar. Allens Creek, ALAB-535, supra, at 396.5 9
- 2. Petitioners Must Meet the " Aspect" Requirements of 10 10 C.F.R. S 2.714 11 In addition to demonstrating " interest," a petitioner 12 must set forth "the specific aspect or aspects of the subject 4
13 matter of the proceeding as to which petitioner wishes to 14 intervene." 10 C.F.R. S 2.714 (a) (2) . Under the provisions of 15 Section 2.714 (a) (2) , petitioner may satisfy this requirement by 16 identifying general potential effects of the licensing action 17 r areas of concern which are within the scope of matters that 18 19 5
20 Further, under Section 2.713 of the Commission's Rules of Practice, a " partnership, corporation or unincorporated 21 association may be represented by a duly authorized member or t officer, or by an attorney-at-law." 10 C.F.R. S 2.713 (b) 22 (emPh asis added). Thus, where an organization is represented by one of its members, the member must demonstrate 23 authorization by that organization to represent it. It is clear that groups may not represent persons other than their 24 own members, and individuals may not assert the interest of other persons. Long Island Lighting Co. (Shoreham Nuclear 25 P wer Station, Unit 1), LBP-77-ll, 5 NRC 481, 483 (1977).
26 i
1 See Virginia Electric and may be considered in the proceeding.
wer mpany
, (North Anna Power Station, Units 1 and 2) ,
3 ALAB-146, 6 AEC 631, 633-634 (1973).
4
- 3. The Petition Must Be Timely 5
A nontimely petition to intervene may be intentional 6
only if, in addition to meeting the requirements of 10 C.F.R. 7
- 2. 714 (d) , the presiding officer determines that the petition 8
should be granted based upon a balancing of the following 9
factors:
10 (i) Good cause, if any, for failure to 11 file on time.
12 (ii) The availability of other means whereby the petitioner's interest will 13 be protected.
14 (iii) The extent to which the petitioner's participation may reasonably be 15 expected to assist in developing a cound record.
16 (iv) The extent to which the petitioner's 17 interest will be represented by existing parties.
18 (v) The extent to which the petitioner's 19 participation will broaden the issues or delay the proceeding.
20 10 C.F.R. S 2.714 (a) (1) . In seeking to meet the late-filing 21 requirements of 2.714 (a) (1) , the burden is on the petitioner to 22 satisfy the foregoing standards. Duke Power Co. (Perkins 23 Nuclear Power Station, Units 1 and 2) , ALAB-615, 12 NRC 350, 24 352 (1980); Virginia Electric and Power Company (North Anna 25 26 1
1 Station, Units 1 and 2), ALAB-289, 2 NRC 395, 398 (1975).
2 Moreover, simply because a late-filed petition will not cause 3
additional delay is not enough to satisfy the test. Gulf 4
States Utilities Co. (River Bend Station, Units 1 and 2),
5 ALAB-444, 6 NRC 760, 798 (1977). Also, the recent acquisition 6
of stand'ing is not, of itself, an excuse for late filing.
7 South Carolina Gas and Electric Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-81-11, 13 NRC 420, 423 (1981).
9 B. 1. The Petition is Untimely and Should Be Denied 10 The instant Petition was filed on September 19, 1986, 11 some six weeks after the August 4 deadline set in the July 3, 12 1986, Federal Register notice. In explanation, petitioners 13 make no attempt to discuss the various factors set forth in 14
- 2. 714 (a) (1) other than to state that: (1) petitioner Barr had not yet received authorization from the League of Women Voters 6 16 and (2) applicant would not be prejudiced because petitioners 17 seek merely to join proceedings which are underway (Petition 18
- p. 7). For that reason alone, the petition should be denied.
19 In addition, while Petitioner Barr seeks to participate on her 20 own behalf, she offers no excuse why she could not have filed 21 on a timely basis. Since there is no other discussion offered 22 23 24 No formal authorization accompanies the petition which would indicate Barr's authority and when any such authority was granted.
25 26 I
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1 on the other lateness criteria, we are unable to respond to 2 arguments on these criteria other than to note that the so-3 called contentions are practically verbatim repetitions of nine 4 of the original petitioners' contentions. Presumably, those 5
parties will adequately represent petitioners' interests.
6 Moreover, there is no showing that petitioners' participation 7 will necessarily result in developing a sound record.
B. 2. Petition of the League of Woman Voters 9 In addition to being untimely, the Petition, as 10 noted, fails to contain some specific authorization of the League authorizing Petitioner Barr to act on its behalf in this matter. 10 C.F.R. S 2.713 (b) ; Shoreham Nuclear Power Station, 13 LBP-77-11, 5 NRC 481, 483 (1977). Assuming arguendo that this 14 technical defeat was cured (and lateness criteria satisfied),
15 the League would appear to have standing based upon Petitioner 16 Barr's statements as a member of the League.
17 Petition of Gaye Barr B. 3.
18
<m Petitioner Barr claims to reside with her two children 19 within five miles of the Humboldt Bay Power Plant, Unit No. 3 20 and that "she and her children would potentially be injured by 21 any on-site accident that occurr[ed] during the next 30 years 22 if the license amendment authorizes the storage of nuclear fuel 23 Petition at 4. Under these facts, Petitioner until 2015."
24 Barr would appear to have standing (aside from her lateness in 25 26 l
1 filing) as an individual living "in close proximity" to the 2 Texas-Utilities facility to intervene in the proceeding.
3 Generating Company (Comanche Peak Steam Electric Station, 4 Units 1 and 2), LBP-79-18, 9 NRC 728, 730 (1979).
5 C. Specific Aspects of the Subject Matter of the Proceedings 6
The Petition sets forth alleged inadequacies in the 7
DEIS and the proposal to SAFSTOR the facility (Petition, 8
PP. 5-6) as to which the petitioners have concerns. Specif-9 ically, they list some nine alleged inadequacies or omissions, 10 yy One or more of these concerns arguably fall within the scope of these proceedings and, thus, articulate a specific aspect of 12 the proposed amendments on which they wish to intervene.
13 14 //
15 //
16 17 18 19 20 21 22 23 24 25 26 l-1 1 III. CONCLUSION 2 For the reasons set forth above, PGandE believes that 3 If the the petition to intervene should be denied as untimely.
4 Board should decide that the Petition is not untimely and 5
assuming that the technical question of Barr's authorization to 6 act on behalf of the League is resolved, PGandE believes that 7
the petition would satisfy the aspect and standing requirements 8 '
of 10 C.F.R. S 2.714.
9 Respectfully submitted, 10 ROBERT OHLBACH PHILIP A. CRANE, JR.
yy RICHARD F. LOCKE Pacific Gas and Electric Company 12 P. O. Box 7442 San Francisco, CA. 94120 13 (415) 781-4211 14 BRUCE NORTON 15 c/o Richard F. Locke 77 Beale Street San Francisco, CA 94106 16 (415) 768-4462 17 18 Dated: October 6, 1986 By 19 Kttorneys for Pacific Gas and Electric Company 20 21 22 23 24 25 26 1
t 00ut1EP uSNRC 1 UNITED STATES OF AMERICA 16 UCI~0 NUCLEAR REGULATORY COMMISSION 2
oppicE IJ WM yCf' 00CKEI!NUA ggANCH U "
3 In the Matter of )
)
4 PACIFIC GAS AND ELECTRIC COMPANY ) Docket No. 50-133
) License No. DPR-7 5 (Humboldt Bay Power Plant, Unit No. 3) )
)
6 7 CERTIFICATE OF SERVICE 8
The foregoing docur.ent of Pacific Gas and Electric 9 Company has been served today on the following by deposit in the United States mail, properly stamped and addressed:
10 11 Mitzi Young, Esq. Robert M. Lazo, Esq.,
Office of the Executive Chairman 12 Legal Director Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel 13 Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission 14 Washington, D.C. 20555 Secretary 15 U.S. Nuclear Regulatory Dr. James H. Carpenter, Commission Member 16 Washington, D.C. 20555 Atomic Safety and Licensing Attn.: Docketing and Board Panel 17 Service Section U.S. Nuclear Regulatory Commission 18 Scott L. Fielder, Esq. Washington, D.C. 20555 517 Third Street, Suite 14 19 Eureka, CA 95501 Dr. Peter A. Morris, Member Atomic Safety and Licensing 20 Board Panel U.S. Nuclear Regulatory 21 Commission Washington, D.C. 20555 22 Dated: October 6, 1986 23 24 By /
25 Richard F. Locke \
Attorney for 26 Pacific Gas and Electric Company