ML19254C866

Answer in Opposition to Georgians Against Nuclear Energy 790914 Petition to Intervene.Petition Does Not Meet Requirements of NRC Rules of Practice.Urges Scheduling of First Prehearing Conference.Certificate of Svc Encl

ML19254C866
Person / Time
Site:	Hatch
Issue date:	09/28/1979
From:	Silberg J, Trowbridge G GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
References
NUDOCS 7910180028
Download: ML19254C866 (8)

Text

. . bb Septembe_ .3, 1979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

) Docket Nos. 50-321 GEORGIA POWER COMPANY ) 50-366 (Edwin I. Hatch Nuclear Plant, ) (Proposed Amendment for Unit Nos. 1 and 2) ) Spent Fuel Pool Expansion)

LICENSEE'S ANSWER TO PETITION FOR LEAVE TO INTERVENE OF GEORGIANS AGAINST NUCLEAR ENERGY On August 15, 1979, the Nuclear Regulatory Commission published in the Federal Register a notice that it was considering issuance of a proposed maendment to the operating licenses for the Edwin I. Hatch Nuclear Plant, Unit Nos. 1 and 2 in connection with an increase of the spent fuel storage capacity of these units. 44 Fed. Reg. 47820. The notice provided that written petitions for leave to intervene by persons whose interest might be affected by the proceeding and who wished to participate were to be filed by September 14, 1979.

A petition for leave to intervene dated September 14, 1979 has been filed in this proceeding by Georgians Against Nuclear Energy (GANE). Georgia Power Company, Oglethorpe Power Corporation (formerly Ogletho..pe Electric Membership Corporation), Munacipal Electric Authority of Georgia and City of Dalton (Licensee) respectfully submit that GANE's petition fails to meet the requirements of the Commission's Rules of Practice. Lice.1see further requests that the Commission or the Chairman of the Atomic Safety and Licensing

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2-Panel promptly designate an Atomic Safety and Licensing Board so that the first prehearing rence may be promptly scheduled and the petition

• 3d upon.

The Commission's Rules of Prac_ Ace, 10 CFR S2.714, set forth two basic requirements for petitions for leave to intervene. First, the petitioner most adequately set forth his interest in the proceeding. Second, the petitioner must specify appropriate contentions which he desires to litigate.

Since 10 CFR S2. 714 (b) does not require a petitioner to list his contentions until 15 days prior to the first prehearing conference, Licensee will not at this time comment on the

" contentions" set forth in GANE's petition. Licensee will submit comm0nts on GANE's contentions prior to the pre-hearing conference.

As for GANE's interest, Licensee believes that the petition has not met the requirements established by the Commission. As was described in the August 15, 1979, Federal Register notice, the Commission's rules (10 CFR S2.714(a))

require that a petition for leave to intervene set forth with particularity the petitioner's interest in the pro-ceeding and how that interest would be affected by the results of the proceeding. These rules also specify that the petition describe the reasons why petitioner should be permitted to intervene with particular reference to

1. the nature of his right under the Atomic Energy Act to be made a party; i184 209

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2. the nature and extent of the petitioner's property, financial or other interest in the proceeding; and

3. The effect of any order which may be issued in the proceeding on petitioner's interest.

GANE's petition does not meet these requirements.

Judicial standards are used to determine whether a petitioner has made a sufficient allegation of personal interest to warrant the intervention as a matter of right.

Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-614 (1976). Fol-lowing these standards, a petitioner must (1) allege that some injury has occurred or will probably occur as a result of the proposed action, and (2) allege an interest arguably within the zone of interests protected by the statute. Id.

No cognizable interest is presumed. Rather, there must be a concrete demonstration that harm to the petitioner will or could flow from an unfavorable outcome. Nuclear Engineering Co., Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978).

GANE's petition states that its interest is based on the concern that increased spent fuel storace at the Hatch facility increases the risk to its members and the general public to exposure to radio- -

active waste products which can seriously affect the health and safety of the citizens of Georgia and other states and seriously affect the quality of the envi-ronment.

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Petition, p. 2.* GANE's interest cannot, of course, be based upon the " risk to . . . the general public" or the

" health and safety of the citizens of Georgia and other states." As S2.714(a) makes clear, GANE must show how its interest is or may be affected.

GANE's showing of interest can only be based upon the interest of its members. Houston Lighting & Power Co.

(Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC (April 4, 1979) (slip op. at 24). The member identified by GANE in its petition lives in Decatur, Georgia.

Affidavit of John de Castro, attached to GANE petition.

According to the Rand McNally Road Atlas, Decatur is approxi-mately 168 miles from Baxley, Georgia, the site of the Hatch facility. This distanc is not in " reasonable proximity" to the site, the test established by the Appeal Board. Duquesne Light Co. (Beaver Valley Power Station, Unit No. 1) , ALAB-109, 6 AEC 243, 244 n.2 (1973). See also Dairyland Power Cooperative (LaCross Boiling Water Reactor), ALAB-497, 8 NRC 312 (1978) (Appeal Board affirms ASLB finding that petitioners, who reside more than 75 miles from the facility, have not shown sufficient interest); Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1 and 2) , LBP-76-10, 3 NRC 209, 215 (1976) (residence 65 miles from site not auto-matically a sufficiently localized interest).

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• The Petition also states a " concern about the additional financial burdens this proposal will impose on consumers of electricity in Georgia." GANE's interest as a utility rate-payer is not cognizable in NRC proceedings. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 a d 2

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supra, at 614.

Nor does the petitioner show how Mr. de Castro's interest might be affected aside from the vague, unspecific claim that there would be " exposure to radioactive waste products." Petition, p. 2. This hardly complies with the particularity test established by 10 CFR S2.714. As the Appeal Board stated in Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 422 (1976), there must be "a particularization of how the inter-ests of one or more members of the [ petitioner] might be ad-versely affected by the grant of the . . . license." For all of these reasons, Licensee submits that GANE has not shown standing to intervene as of right. Nor has GANE shown that it should be granted interven-tion as a matter of discretion. In Pebble Springs, CLI 27, supra, the Commission directed that licensing boards, using guidelines specified in that decision, should exercise their discretion on granting intervention to petitioners not entitled to intervene as a matter of right. Of the six factors identified in Pebble Springs, the foremost is whether GANE's participation would likely produce a valuable contri-bution to the decision-making process. Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-

13, 5 NRC 1418, 1422 (1977). See also Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),

ALAB-397, 5 NRC 1143, 1151 and n.14 (1977); Virginia Elec-tric and Power Co. (North Anna Power Station, Units 1 and

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2), ALAB-363, 4 NRC 631, 633 (1976). GANE has indicated nothing to suggest that such a contribution would be likely in this proceeding. Nor has GANE made any attempt to show that discretionary intervention is warranted on the basis of any other factor. Of particular note is the delay factor ("the extent to which the petitioner's participation will inappropriately broaden or delay the proceeding"). In this license amendment proceeding, there would be no hearing absent GANE's petition. For the reasons set forth above, Licensee respectfully submits that GANE's petition does not meet the standards established by 10 CFR S2.714. We would urge that an Atomic Safety and Licensing Board be promptly appointed and the first prehearing conference scheduled. This will enable an early ruling on GANE's petition and assure that the spent fuel pool modification may proceed on a timely basis. Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By A p.fA-f G' *ge lF. Tfowbridge , J"E.fSilberg J 1800 M Street, N. W. Washington, D. C. 20036 (202) 331-4100 Counsel for Licensee Dated:

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. . UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

                                       )       Docket Nos. 50-321 GEORGIA POWER COMPANY               )                    50-366 (Edwin I. Hatch Nuclear Plant,      )       (Proposed Amendment for Units 1 and 2)                     )         Spent Fuel Pool Exapansion)

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Licensee's Answer to Petition for Leave to Intervene of Georgians Against Nuclear Energy" were served by deposit in the U. S. Mail, first class, postage prepaid, this 28th day of September, 1979, to all those on the attached Service List.

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Jay E. Silberg i Dated: September 28, 1979 - 1181 214

. . UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

                                      )  Docket Nos. 50-321 GEORGIA POWER COMPANY             )               50-366 (Edwin I. Hatch Nuclear Plant,   )   (Proposed Amendment for Units 1 and 2)                  )    Spent Fuel Pool Expansion)

SERVICE LIST Docketing and Service Section U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Barry H. Smith, Esquire Office of the Executive Legal Director G. S. Nuclear Regulatory Commission Wasnington, D. C. 20555 Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Cormission Washington, D. C. 20555 Georgians Against Nuclear Energy c/o Gary Flack, Esquire 1515 Healey Building 57 Forsyth Street, N. W. Atlanta, Georgia 30303

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