ML19208C328

Memorandum Submitted by Applicant Re Standing of Intervenors Citizens for Safe Energy,Mid-Hudson Nuclear Opponents,Ulster County Environ Mgt Council & Town of Gardiner.Responds to E Mead & Town of Conesville 790619 Petition

ML19208C328
Person / Time
Site:	New Haven
Issue date:	07/13/1979
From:	Schutt R HUBER, MAGILL, LAWRENCE & FARRELL, NEW YORK STATE ELECTRIC & GAS CORP.
To:
References
NUDOCS 7909260070
Download: ML19208C328 (51)

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Before the Atomic Safety and Licensine Board Joint Proceedings

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In the Matter of )

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NEW YORK STATE ELECTRIC & GAS CORPORATION ) Docket Nos. STN-50-596 AND LONG ISLAND LIGHTING COMPANY ) STN-50-597

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(New Haven 1 and 2 Nuclear Power Plant )

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State of New York Department of Public Service Board on Electric Generation .

Siting and the Environment

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In the Matter of )

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NEW YORK STATE ELECTRIC & GAS CORPORATION ) Case 80008 AND LONG ISLAND LIGHTING CCMPANY )

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(New Haven /Stuyvesant Nuclear Generating )

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APPLIC%'TS' MEMORANDUM ON THE LEGAL ARGUMENTS REGARDING STANDING ADVANCED AT PRE-EEARING CONFERENCE SY PROPOSED INTERVENORS AND APPLICANTS' ANSWER TO THE PETITION OF EMERSON MEAD AND THE TOT 3N OF CUNESVILLE o D O 70 q 9 09"G

. 1015 165

Pursuant to the Board's request at the May 23, lil79 pre-hearing conference in the above captioned proceed-ing and set forth in the Board's June 20, 1979 order with regard to standing of certain proposed intervenors and pur-suant to the Board's June 25, 1979 order regarding the re-quest of Emerson Mead that he as an individual, and the Town of Conesville, be admitted as intervenors in this proceeding, the Applicants respectfully .cubmit the following.

STANDING OF CONCERNED CITIZENS FOR SAFE ENERGY AND OTHER HUDSON RIVER INTERVENORS Concerned Citizens for Safe Energy, Inc. (Concerned Citizens) is located in the Hudson Valley, 100-125 miles from the New Haven site. The petition to intervene contains no allegations that any member of the organization lives in the vicinity of the New Haven plant who would be harmed by the construction and operation of the proposed plant. In its Petition to Intervene, Concerned Citizens broadly stated its interests in this proceeding, and in Mr. Kafin's Affirma-tion in Suppor of Petition To Intervene (dated March 12, 1979), the purposes of the organization are set out as follows:

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(a) To study and investigate environ-mental and public safety concerns involved with the construction of nuclear and/or fossil fuel power generating plants in Columbia County, the Hudson River Valley and elsewhere; 1015 l66

(b) To communicate publicly its find-ings and opinions; (c) To study, investigate and communi-cate findings and opinions regard-ing alternate sources of electric power other than nuclear fuel.

At the Prehearing Conference held in Oswego, New York on May 23rd, 1979 it was urged that the broad purposes quoted above provide a basir for admitting Concerned Citizens as a party. There was much discussion as to the standing of this organization. (SM573-578). The broad statements quoted in the petition to intervene do not confer standing on Concerned Citizens.

Mr. Kafin relies on Scenic Hudson Preservation Conf. v. Federal Power Com'n., 354 F2d 608 (2nd Cir. 1965), .

as precedent for conveying scanding upon Concerned Citizens.

This case deals with the standing of a party to obtain review of decisions. It does not address the question ivcalved here of initial right to be granted party statua.

The Administrative Procedure Act grants standing to a person " adversely affected or aggrieved by agency action within the meaning of a relevant statute" (5 U.S.C.;.

5702) and is one of the provisions controlling standing before administrative bodies such as the Nuclear Regulatory Commission.

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_4 In a series of cases beginning in 1970, the Supreme Court has develcped the criteria governing the right of groups such as Concerned Citizens to participate in proceed-ings be: fore administrative agencies.

In Association of Data Processing Service orgs. v.

Camp, 397 U.S. 150, 25 L.Ed.2d 184, 90 S. Ct. 827 (1970),

the plaintiffs challenged a ruling by the Comptroller of the Currency which would allow national banks to make data pro-cessing services available to bank customers and other banks. In respect of the question of standing a two-part test was used: "The first question is whether the plain #:.iff alleges that the challenged action has caused him injury in fact, economic or otherwise." 397 U.S. 150, 152, 25 L.Ed.2d ~

184, 90 S. Ct. 827. The second question is "...whether the interest sought to be protected by the complainant is arguably within the ene of interests to be protected or regulated by the statute or constitutional guarantee in question. " 397 U.S 150, 153, 25 L.Ed.2d 184, 90 S. Ct. 827. The Court rulud that the Associatien of Data processing Service organiza-tion was an appropriate organization representing persons potentially injured by the rule in question. Although the Camp case, in holding that the plaintiff had an economic interest and would be adversely affected by the proposed action, stated that non-econc=ic issues can also confer 1015 168

party status upon intervenors. However, the nature of allegations which must be made by persons who claim non-economic injuries were not specifically identified.

The next relevant case decided was Sierra Club v.

Morton, 405 U.S. 727, 31 L.Ed.2d 636, 92 S. Ct. 1361 (1972) in which the issue was the nature of non-economic allegations necessary to establish status as a party. The Sierra Club, an environze:.tal interest group, attempted to challenge a decision of the Forest Service which would permit commercial development of Mineral King Valley. The Court held that the Sierra Club lacked standing due to its failure to allege that it or itt members would be affected by the development.

The injury alleged by the Sierra Club will be incurred entirely by reason of the change in the uses to which Mineral King will be put, and the attendant change in the aesthetics and ecology of the area.... We do not question that this type of harm may amount to an " injury in. fact"...

Aesthetic and environmental well-being, like ecor.omic well-being are important ingredients of the quality of life in our society, and the fact that par-ticular environmental interests are shared by the many rather thap the few does not make them le'+. da:erving '

of legal protection thr9.c;S thz ju-dicial process. Set -cs ".*. jury in fact" test requires a se .< 1.n an in-jury to a cognizable interes;. It requires that the party seeking re-view be himself among the injured. .

405 U.S. 727, 734-735, 31 L.Ed.2d 636, 92 S. Ct. 1361.

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The Court went further by saying:

But a mere " interest in a problem" no matter how longstanding the interest and no matter how qualified the orga-nization is in evaluating the problem, is not sufficient by itself to render the organi=ation " adversely affected" or " aggrieved" within the meaning of the APA.... if a "special interest" in this subject were enough to entitle the Sierra Club to commence this liti-gation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organi=ation, however small or short lived. And if any group with a bona fide "special interest" could initiate such litigation, it is diffi-cult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so. 405 U.S. 727, 739-740, 31 L.Ed.2d 636, 92 S. Ct. 1361.

Applicants submit that like the Sierra Club, Concerned Citizens for Safe Energy is a special interest organization which lacks the " injury in fact" to confer standing upon it.

In Warth v. Seldin, 422 U.S. 490, 4 5 -L.Ed. 2d 3 4 3, 95 S. Ct. 2197 (1975), which follcwed Sierra Club v. Morton, plaintiffs claimed that the town of Penfield's =oning ordi-nance. was in contravention of their federal constitutional .

and civil rights. Here again, the " injury in fact" test was a key question:

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...the fact that these petitioners share attributes common to persons who may have been excluded from resi-dence in the town is an insufficient predic~ ate for the conclusion that pe-titioners themselves have been ex-cluded, or that the respondents' assertedly illegal actions have violated their rights. Petitioners must allege and show that they per-sonally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they pur-port to represent. Unless these petitioners can thus demonstrate the requisite case or controversy between themselves personally and respondents, "none may seek relief on behalf of him-self or any other member of the class."

422 U.S. 490, 502, 45 L.Ed.2d 343, 95 S. Ct. 2197.

Under the Warth case, it is clear that Concerned Citizens for Safe Energy does not have an injury in fact.

Sinilarly, in Simon v. Eastern Ky. Welf are Rights Org., 426 U.S. 26, 48 L.Ed.2d 450, 96 S. Ct. 1917 (1976),

the Court followed the holding of Sierra Club where several indigents and' organizations consisting of indigents asserted that the Internal Revenue Service violated the Internal Revenue Code of 1954 and the Administrative Procedure Act by issuing a Revenue Ruling allowing favorable tax treatment to a non-prefit hospital which only offered emergency room services to indigents.

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The indigent organizations were held to have lacked standing:

We note at the outset that the five respondent organizations, which described themselves a's dedicated to promoting access of the poor to health services, could not establish their standing simply on the basis of that goal. Our decisions make clear that an organization's abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art. III. Insofar as these organizations seek standing based on their special interest in the health problems of the poor their complaint must fail. Since they allege no injury to themselves as organizations, and indeed could not in the context of this , suit, they can establish standing only '

as representatives of those of their members who have been in-jured in fact, and thus could have brought suit in their own right. 426 U.S. 26, 39-40, 48 L.Ed.2d 450, 96 S. Ct. 1917.

Finally in Hunt v. Washington Apple Advertising Comm'n., 432 U.S. 333, 53 L.Ed.2d 383, 97 S. Ct. 2434 (1977),

the Washington Apple Advertising Commission challenged the constitutionality of a North Carolina statute requiring that all apples sold or shipped into North Carolina in closed containers be identified by grade on the containers other than the applicable federal grade or a designation that the apples are not graded.

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Enunciated here is a three-feld test for associ-ation standing:

Thus we have recognized that an association has standing to bring suit on behalf of its members when:

(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to pro-tect are germane to the organiza-tion's purpose; and (c) neither the claim asserted, nor the relief re-quested, requires the participation of individual members in the lawsuit.

Based upon the above cases, Concerned Citizens for Safe Energy clearly lack standing in this case; it has al-leged no harms to its members in fact, primarily because they are too remote from the New Haven site. Its general assertion that it is an organization with "...a charter mandated to study and investigate environmental and public safety concerns involved with the construction of nuclear and fossil fuel generating plants...".(S.M 574), is not sufficient to confer standing. Without identification of specific individual members' injuries, Concerned Citizens is not entitled to participate in this litigation.

Mid-Hudson Nuclear Opponents have also f ailed to demonstrate injury to any of its members and it is not en-titled to participate under the cases discussed above.

There is a similar lack of demonstration of injury in the petitions of Columbia County and the Town of Stuyvesant and logic indicates that the principles discussed above should also apply to these entities.

1015 173

ULSTER COUNTY ENVIRONMENTAL MANAGEMENT COUNCIL. TOWN OF GARDINER The Ulster County Environmental Council in its pleading of May 11, 1979(1) and the Town of Gardiner in its pleading of May 11, 1979(2) urge a change in the re-quirements for intervening in licensing proceedings based on the Three Mile Island incident.

...In light of new evidence related to the recent Three Mile Island incident, injury to the environment of Ulster County and the natural re-sources on which its residents de-pend, and injury to the health of its residents can result from a plant located at New Haven.

...The Three Mile Island plant, located about 240 miles from Albany, New York increased the background level of radiation there, as re- ~

corded by the NYS Dept. of Health.

In our opinion, this new evidence requires a change in the NRC's policy regarding a show of standing based on distances averaging 50 miles. The Ulster County line is located about 130 miles from New Haven and therefore would defi-nitely be effected in the event of a clant malfunction at New Haven'. ( 3)

...We suggest that recent events at Three Mile Island No. 2 (TMI) require a change in the estab-lished 50 mile test of standing.

(1) Received from the Office of the Secretary of the Co= mission with docket date stamp of June 13, 1979.

(2) Received from the Commission by copy of letter dated May 23, 1979 from Counsel for NRC Staff.

(3) Ulster County Environmental Management Pleading, May 11, 1979 pg 1.

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Our reason for making this sugges-tion is the finding of the New York Dept. of Health that 133Xe was identified in the Albany, New York atmosphere (New York Times, May 3, 1979, p. B12) some 4 weeks after release during the early hours of the TMI incident. Albany is over 200 miles from TMI indicating that an incident of similar magnitude at New Haven or anywhere in this region could significantly increase the radiation to which c Gardiner are exposed.l4)itizens of Although some of the events or consequences with the Three Mile Island incident may be incontestable, it is lot clear that the assertions of the Town of Gardiner and the Environmental Management Council are either based on fact or the the conclusions are necessarily supported by fact. Furthermore, the Town and the Council have not repre- -

sented that they are competent to make the assertions and conclusions upon which they urge the Board to rely, hs-suming arguendo that radiation was measured at Albany and that radiation is associated with the Three Mile Island incident, the Town and the Council seem to suggest, if not urge, that the mere recordation or detection with suffi-ciently sensitive instrumentation of an event some miles from the event renders the consequences of the event signifi-cant at the location of detection. It is as if the Town and (4) Town of Gardiner's Pleading, May 11, 1979 pg 2.

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Council were urging that, in an analagous vein, seismic events that are measurable hundreds, thousands or even tens of thousands of miles away from the earthquake, ipso facto, impairs the health and safety of .rsons located at any point of measurement or detection. In the absence of a determination from a competent source, of the consequences of the Three Mile Island incident and an assessment whether the impacts on the population are de minimus or not, the Applicants urge the Board to reject the Environmental Manage-ment Council's and Town of Gardiner's suggestions in this proceeding that any elemer* 3asded to satisfy the require-ments of standing be abrogated or altered.

PETITION OF EMERSON MEAD, INDIVIDUALLY ~

AND ON BEHAIS OF THE TOWN OF CONESVILLE Mr. Mead's hand writte.t and late petition (5) re-quests intervenor status in the " proceedings on the proposed Stuyvesant Nuclear Power Plant". (Petition, page 1) . This untimely petition does not, on its face, establish grounds necessary for intervening in this pruceeding in that the Pe-titioner, individually and as representative of the Town of Conesville, fails to satisfy the regulatory requirements regarding a showing of standing. Although residence within (5) Mr. Mead's undated petition was served upon the Ap-plicants by Counsel for NRC Staff on June 19, 1979.

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30-40 miles (6) of the reactor site is sufficient to satisfy the " zone of interest" test as set forth in the Pebble Springs case, Portland General Electric Co. (Pebble Springs Nuclear Plant, (Units 1 & 2) , CLI 76-27, 4 NRC 610 (1976),

and residence within 50 miles (7) might also satisfy this test, the Petitioner's remote location in Schoharie County, more than 100 miles from the proposed New Haven 1 & 2 fa-cility, and the f ailure to particularize an injury that the Petitioner would sustain from the construction and/or opera-tion of New Haven Units 1 & 2 as required by 10 CFR S2. 714 (a) (2) ,

should preclude a finding of standing.

The notice appearing in the Federal Register on .

February 9, 1979, required that petitions to intervene be filed by March 12, 1979. Mr. Mead's petitio- -m filed after that date. Other than the Petitioner's allegation that he wasn't aware of these proceedings as good cause for failure to file on time, Petitioner has failed to address the f actors contained in 10 CFR S2. 714 (a) (1) . With respect to the granting of discretionary intervention, in view of (6) Northern States Power Co. (Irairie Island Nuclear Genera:Ing Plant, Units 1 & 2) , ALAB-107, 6 AEC 138, 190, reconsideration denied, ALA3-110, 6 AEC 247, affirmed, CLI-73-12, 6 AEC 241 (1973); Louisiana Power & Light Co. (Waterford Steam Electric Station Unit 3), ALA3-125, 6 AEC 371, 372 n. 6 (1973); Virginia Electric & Power Co. (North Anna Power Station, Units 1& 2) , ALA3-146, 6 AEC 631, 633-34 (1973).

(7) Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALA3-413, 5 NRC 1418, 1421 at n. 4 (10 '-) .

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the Petitioners' silence on the factors contained in 10 CFR 5 2. 714 (a) , (d) and the Pebble Springs case (Portland General Electric Co. (Pebble Springs Nuclear Power Plant Units 1 &

2) , supra, at 614-17) , the Petitioner has not justified, on the face of its pleading, the granting of party status as a matter of discretion.

Respectfully submitted, NEW YORK STATE ELECTPlc &

C DORATION

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Roderick Scnu r Roderick Schutt, Esq.

Ira Lee Zebrak, Esq.

Huber Magill Lawrence s Farrell 99 Park Avenue New York, New York 10016 (212) 682-6200 Dated: July 13, 1979 1015 178

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COAMISSION k i 6sdS*

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1. ,pn# o1,b,ps 9 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Q g In the Matter of )

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NEW YORK STATE ELECTRIC & GAS CORP. ) Docket Nos. STN 50-596 AND LONG ISLAND LIGHTING CO. ) 50-597

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(New Haven 1 & 2) )

STATE OF NEW YORK DEP.\RTMENT OF PUBLIC SERVICE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT In the Matter of the Application of the)

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NEW YORK STATE ELECTRIC & GAS CORP. )

AND LONG ISLAND LIGHTING CO. ) Case 80008

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(New Haven 1 & 2) )

CERTIFICATE OF SERVICE I hereby certify that ccpies of " APPLICANTS' MEMORANDUM ON THE LEGAL ARGUMENTS REGARDING STANDING ADVANCED AT PRE-HEARING CONFERENCE BY PROPOSED INTERVENORS AND APPLICANTS' ANSWER TO THE PETITION OF EMERSON V.EAD AND THE TOWN OF CONESVILLE" in the above-captioned proceeding were served upon the individuals on the list attached hereto by deposit in the United States mail, first-class on July 13, 1979.

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Jones B. Irwin 1015 179

Seymour Wenner, Esq. , Chairman Robert Grey, Michael Flynn and Atemic Safety and Licensing Board Craig Indyke, Staff Counsel United States Nuclear Regulatory New York State Department of Commission Public Service Washington, D.C. 20555 The Governcr Nelson A. Rockefells Empire State Plaza Albany, New York 12223 Dr. Oscar H. Paris, Member David A. Engel, Esq.

Atomic Safety and Licensing Board Senior Attorney for Energy United States Nuclear Regulatory New York State Department of Co=nission Environmental Conservation Washington, D.C. 20555 50 Wolf Road Albany, New York 12233 Dr. Waa* u Jordan, Member Stephen E. Lewis, Esq.

Atomic Safety and Licensing Board Marcia E. Mulkey, Esq.

881 West Guter Drive Office of Executive Legal Directc Cak Ridge, TN 37830 United States Nuclear Regulatory Cc= mission MNV3 - 9604 Washington, D.C. 20555 Thomas R. Matias, Administrative Edward M. Barrett, General Counse Law Judge New York State Department of Long Island Lighting Ccmpany 250 Old Country Road Public Service Mineola, New York 11501 The Governor Nelson A. Rockefeller Empire State Plaza Agency Building No. 3 Albany, New York 12223 Dr. Sidney A. Schwart: Mr . Micha el J . Ray New York State Department of Environmental Conservation New York State Electric & Gas Cor-50 Wolf Road 4500 Vestal Parkwav East Singhamton, New Yo'rk 13 902 Albany, New York 12233 1015 180

Henry G. Williams, Director of William Tyson, Executive Direct State Planning New York State Department of State St. Lawrence - Eastern Ontario 162 Washington Avenue Cc= mission Albany, New York 12231 317 Washington Street Watertown, New York 13601 Samuel J. Abate, Executive Director Thomas E. Brewer, Director Hudson River Valley Commission Rensselaer Co. Dept. of Health The Governor Nelson A. Rockefeller Troy, New York 12180 Empire State Plaza Agency Building No. 1 Albany, New York 12238 Cc==issioner Mark R. Gibbs, Supervisor New York State Dept. of Health Town of Mexico Attn: Director - Office of Public S. Jeff erson Street Health Mexico, New York 13114 '

Tower Building - 14th Floor The Governcr Nelson A. Rockefeller Empire State Plaza Albany, New York 12237 Commissioner New York State Dept. of CC=merce Barbara J. Campbell, Clerk Village of Mexico 99 Washington Avenue Albany, New York 12245 P.O. Box 26 Mexico, New York 13114 Robert Fickies Mrs. Nancy K. Weber Energy - Enviro =nental Geology Oswego County Farm Bureau New York State Geological Survey R.D. 3 Education Building Annex Mexico, New York 13114 Albany, New York 12234 1015 181

Linda Clark John D. Hotaling, President Safe Energy for New Haven Columbia Co. Fruit Growers Box 22, R.D. 1 R.D. 1 Mexico, New York 13114 Hudson, New York 12534 Thomas G. Griffen, Esq. Vivian Rosenberg Town of Kinderhook Box 274 542 Warren Street Walker Mill Road Hudson, New York 12534 Germantown, New York 12526 Mr. Alman J. Hawkins G . Jef frey Haber, Supervisor County Planning Director 1777 Columbia Turnpike Oswego County Planning Board Castleton, New York 12033 46 East Bridge Street Oswego, New York 13126 -

Columbia County Ralph Schi=mel, Representative Town of Stuyvesant Town of Coeymans Concerned Citizens for Safe Russell Avenue Energy, Inc.

Ravena, New York 12143 c/o Robert J. Kafin, Esq.

Miller, Mannix, Lemery & Kafin P.O. Box 765 Glens Falls, New Y k 12801 James P . MCGrath, Esq . Ms. Jeanne F. Fudala City of Oswego Ecciogy Action - Tompkins CO.

38 East Utica Street 140 West State Street Oswego, New York 1312G Ithaca, New York 14850 IOisG e 18_?

Ms. Anne F. Curtin Clara Glenister, Town Clerk Concerned Citizens for Safe Energy, Town of New Haven Inc. P.O. Box 115 P.O. Box 88 New Haven, New York 13121 Stuyvesant, New York 12173 Commissioner Orin Lehman John F. Shea, Esq.

New York State Dept. of Parks & Assistant Attorney General Recreation Department of Law The Governor Nelson A. Rockefeller Two World Trade Center Empire State Plaza New York, New York 10047 Agency Building No. 1 Albany, New York 12238 E. Lee Davis, President Douge Suske Citizens to Preserve the Hudson Plumbers & Steamfitters Valley, Inc.

Local No. 27 -

P.O. Box 412 R.D. #1 Catskill, New York 12414 Oswego, New York 13126 Ecology Action c/o Helen Daly Reilly and Like, Esgs.

W. River Rd . , RD 5 200 West Main Street Babylon, New York 11702 Cswego, New York 13126 Mrs. Jeffrey Braley, President Richard P. Feirstein, Esq.

Columbia County Farm Bureau New York State Dept. of Star Route Box 22 Agriculture & Markets Chatham, New York 12037 State Campus Albany, New York 12235 1015 183

John M. Mowry, Esq. Dr. Stephen J. Egemeier Mowry, Mowry & Seiter Main Street Chairman Mexico, New York 13114 Ulster County Environmental Management Council 300 Flatbush Avenue Kingston, New York 12401 Margaret A. Sprague, President Mexico Academy and Central School ' Docketing and Service Section Mexico, New York 13114 Office of the Secretary U.S. Nuclear Regulatory Ccmmission Washington, D.C. 20555 Doris Brown League of Women Voters of Tempkins Samuel R. Madison, Secretary County New York State 3epartment of .

86 Oak Crest Road Public Service Ithaca, New York 14850 The Governcr Nelson A. Rockefell Empire State Plaza Agency Building No. 3 Albany, New York 12223 Stanley 3. Klinberg, Acting Counsel Peter D. G. Brown New York State Energy Office 2 Rockefeller Plaza Chairman of the Board Albany, New York 12223 Mid-Hudson Nuclear Cppenents P.O. Scx 666 New Palt=, New York 12561.

William Keeping, Supervisor Atomic Saf ety and Licensing Town of Gardiner Board Panel Gardiner, New Ycrk 12525 U.S. Nuclear Regulatory C0cmissic Washington, D.C. 20555 1015 194

Ms. Susan Link R.D. 1, Dewey Road Mexico, New York 13114 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Ccm-mission Washington, D.C. 20555 1015 185