ML19270F279
| ML19270F279 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 01/17/1979 |
| From: | Christman J, Maupin M, Rinaca J HUNTON & WILLIAMS |
| To: | |
| References | |
| NUDOCS 7902060102 | |
| Download: ML19270F279 (34) | |
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\L A "* Y UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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NC p L9 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of ) Docket Nos.50-338SP
)50-339SP VIRGINIA ELECTRIC AND PCL'ER COMPANY )
) (Proposed Amendment (North Anna Nuclear Power ) to Operating License Station, Units 1 & 2) ) NPF-4)
VEPCO'S BRIEF IN OPPOSITION TO THE INTERVENTION OF CEF AND THE POTOMAC ALLIANCE Michael W. Maupin James N. Christman James M. Rinaca Counsel for the Applicant, Virginia Electric and Power Company Hunton & Williams P.O. Box 1535 Richmond, Virginia 23212 January 17, 1979 790206 0/o2;
e TABLE OF CONTENTS I. BACKGROUND . . . . . . . . . . . . . . . . . . 1 II. THE NEED FOR HASTE . . . . . . . . . . . . . . . 3 III.
SUMMARY
OF VEPCO'S ARGUMENT . . . . . . . . . . . 4 IV. STANDING TO INTERVENE . . . . . . . . . . . . . 6 Interest . . . . . . . . . . . . . . . . . . . 7 Injury in fact . . . . . . . . . . . . . . . . 7 The petitioners' " injury in fact" . . . . . . . 8 The " zone of harm" cases . . . . . . . . . . . 10 The " irrationality" standard . . . . . . . . . 11 V. WHY THE ASLB'S DECISION WAS " RATIONAL" . . . . . 12 The Potomac Alliance . . . . . . . 13 CEF . . . . . . . . . . . . . . . 15
_D_e minimis . . . . . . . . . . . . . . 21 VI. DISCRETIONARY INTERVENTION . . . . . . . . . . 25 VII. CONCLUSION . . . . . . . . . . . . . . . . . 27 9
January 17, 1979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of ) Docket Nos.50-338SP
)50-339SP VIRGINIA ELECTRIC AND POWER COMPANY )
) (Proposed Amendment (North Anna Nuclear Power ) to Operating License Station, Units 1 & 2) ) NPF-4)
VEPCO'S BRIEF IN OPPOSITION TO THE INTERVENTION OF CEF AND THE POTOMAC ALLIANCE I. BACKGEOUND This appeal of the denial of two petitions for leave to intervene raises a fundamental question about NRC practice that seems not to have been addressed very carefully before: what is the evidentiary basis for a finding of " injury in fact" sufficient to support a petition for leave to intervene? The Commission has not resolved this issue in the past, but we sense that today, with petitioners claiming ever more tenuous grounds for participating in licensing proceedings, the issue is asserting itself again and again.1 I
See, e.g., Memorandum and Order with Respect to Various Motions and Petitions, Detroit Edison Co.
(Enrico Fermi Atomic Power Plant, Unit 2), LdF-/o-3/,
Doc. No. 50-341 (Nov. 13, 1978), denying the applicants' request to depose the would-be intervenors in order to assess "whether petitioners possess the necessary inter-(footnote continued on next page)
The present case is a proceeding to amend the operating licenses of North Anna 1 and 2 to authorize the installation and use of high-density spent fuel storage racks that will more than double the capacity of the North Anna spent fuel pool. Two groups, one named Citizens Energy Forum, Inc. (CEF) and the other the Potomac Alliance, petitioned for leave to inter-vene, and the atomic safety and licensing board de-nied their petitions in an order of December 19, 1978.
(Amended Order and Recommendation on Petitions for Leave to Intervene, Virginia Electric and Power Co.
(North Anna Power Station, Units 1 & 2), Doc. Nos.50-338SP & 50-339SP (Proposed Amendment to Operating Li-cense NPF-4) (Dec. 19, 1978), hereinafter " Amended Order.") CEF and the Alliance appealed the board's decision on January 2 and January 3, 1979, (footnote continued from previous page) est requisite to intervention," and Order Following Prehearing Conference, Duke Power Co. (Amendment to Materials License SNM-1773 for Oconee Nuclear Station Spent Fuel Transportation and Storage at McGuire Nuclear Station), Doc. No. 70-2623 at 5-6 (Nov. 2, 1978 where the parties have been directed to brief the question),whether petitioner Natural Resources Defense Council, Inc, must reveal the names of its members who live in the geographic area of the facilities in question. Consumers Power Co.
(Midland Plant, Units 1 & 2) , LEP-78-27, 8 NRC 275, 177 n.1 (Aug. 14, 1978) Counsel for NRDC offered at the prehearing conference to bring an NRDC officer to testify that the group has members in the vicinity of the Duke facilities.
In the proceeding to license the expansion in the capacity of the Lacrosse spent fuel pool, the appli-cant questioned whether the intervenor group's directors actually resided near the station, Memorandum and Order, Dairyland Power Cooperative (Lacrosse Boiling Water Reac-tor), Doc. No. 50-409, at 2 n.1 (July 14,1978) .
resps 'tvely, and it is those appeals that prompt this brief in opposition.
II. THE NEED FOR HASTE Vepco requests a speedy disposition of this appeal.
Our reason is that it is important to have the new spent fuel racks installed before North Anna 1 is first refueled in September 1979, because at that time spent fuel will first be stored in the spent fuel pool. At present the North Anna pool has never had any radioactive materials in it, and until it has, the new racks may be installed without any special precautions. If, on the other hand, Vepco is forced to wait until after spent fuel has been put into the pool, the workmen who install the racks will be exposed to radiation and contamination, and the installation will be much more difficult and costly.2 High-density racks have been installed in contaminated fuel pools before, of course, and it can certainly be done without violating NRC regulations or endangering the 2
See Affidavit of E. Ashby Baum, attached to Vepco's Answer to Fetitions for Leave to Intervene (Including Alter-native Motion for Consolidation) at 3 (July 6, 1978)
In cases in which the racks would have to be in-stalled in already-contaminated pools, of course, inter-venors may argue that the new racks should not be installed because of the occupational exposure to the workmen. See the discussion in Portland General Electric Co. (Troj an Nu-clear Plant), LBP- , 8 NRC (Oct. 6, 1978), slip op.
at 43, and in Duquesne Light Co. (Beaver Valley Power Sta-tion, Unit No. 1), LBP-78-16, 7 NRC 811, 821, aff'd, ALAB-484, 7 NRC 984 (1978).
health of the workmen, but it is certainly more consis-tent with the Commission's policy of keeping radiation exposures "as low as is reasonably achievable" (see 10 CFR 520.l(c)) to do the work before the fuel pool ever sees any spent fuel.
Vepco has been making this point at least since last July, and so far we believe the petitioners CEF and Potomac Alliance have not responded to it, but we take it that even they would agree, in the interest of protecting the workmen,3 that if the new spent fuel racks are to be installed at all, they should be installed be-fore September. Vepco fears that even now it may be too late to carry out a public hearing, with all the preparation that entails, and still have a decision in time to meet the September deadline.
Of course, our problem would be solved by a decision that neither CEF nor the Alliance may intervene, a decision that we feel would be fully justified, as we will now demonstrate.
III.
SUMMARY
OF VEPCO'S ARGUMENT Vepco's argument depends heavily on the fact that the only thing in issue in this proceeding is a rather minor modification to an already-licensed power plant.
3 For example, the Alliance has raised the issue of occupational exposure to plant employees. See its Amend-ment to Petition for Leave to Intervene, served Aug. 24, 1978, at 6.
The argument is this: to establish his right to inter-vene in a proceeding to license spent fuel racks, as opposed to a full reactor facility, a petitioner must do more than merely allege that he lives near the plant.
Because there is no reason to believe prima facie that such a minor undertaking could harm people nearby in any way, the petitioner must with considerable speci-ficity describe a chain of events by which he might be harmed. And the chain of events must be plausible as well as specific, because what the licensing board must do, of course, is find as a fact that there is some ad-ditional risk to the petitioner that is not insignificant.
But here the potential harm to the petitioners, particularly the Potomac Alliance, is de minimis. Most of the members of both groups live far from the North Anna Station -- so far, in fact, that all but a handful might well be denied leave to intervene even if it were an entire reactor facility at issue here. Where only a modification to a spent fuel storage pool is at issue, we submit, it is not enough to present a family that sometimes comes within 20 or 30 miles of the power plant for recreation.
In the past, the Commission's licensing and appeal boards have, in the case of construction permit and oper-
ating license proceedings, relied on what seems to be official notice that accidents at nuclear plants might harm residents as far away as 50 miles. But in the pre-sent instance, where the question is whether a mere modi-fication to a power plant might harm people (only a few of whom seem to be closer than 50 miles to the plant),
the ASLB was unwilling to take official notice that the modification might harm the petitioners. This was a rational and correct decision on the board's part, and therefore it should stand on appeal.
We will expand on this theme as we go along. But the first thing we must do is discuss briefly the Commission precedent on standing to intervene.
IV. STANDING TO INTERVENE The question in this appeal is whether either CEF or the Alliance should be permitted to intervene in this licensing proceeding. Tne question must be decided under 10 CFR 52.714, which this Appeal Board has considered so many times as to know it by heart:
Sec. 2.714. Intervention. -- (a)(1) Any person whose interest may be affected by a proceeding and who desires to participate as a party shall file a written petition for leave to intervene. . .
. . . . (2) The petition shall set forth with particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to in-
tervene, with particular reference to the factors in paragraph (d) of this section, and the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to in-tervene.
Under the caselaw interpreting $2.714 a petitioner may establish standing only by describing both a target and an crrow. The target is his " interest," which must be within the zone of interests protected by the Atomic Energy Act or NEPA. The arrow is the means by which his interest allegedly stands to be harmed by the outcome of the licensing proceeding. See general]y Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2),
Interest Both CEF and the Potomac Alliance have named the right target. Although in their original petitions they claimed an academic interest, an opposition to nuclear power in general, they learned quickly, discov-ered or recruited members who live in the vicinity of the North Anna station, and asserted the interest of health and safety. There is no question that " health and safety" is an interest that has gained petitioners admission to licensing proceediags in the past.
Injury in fact The weakness in the petitioners' case is in their statements of how that interest "may be affected."
A would-be intervenor must come up with a plausible state-ment of how the particular licensing proceeding night harm his health and safety, and in the present proceeding the petitioners are handicapped by the fact that the licensing action is a very minor one indeed -- the installation and use of new spent fuel storage racks.
The question is whether the increased storage capacity might harm the petitioners' health and safety. That is why the licensing board kept emphasizing the limited scope of the proceeding (Tr. 46; Amended Order 13)
The petitioners' "iniury in fact" How have petitioners CEF and the Potomac Alliance attempted to meet the requirement that they show injury in fact? CEF says the following about its members:
The Vaughan's obtain their drinking water from a well on their property and believe that the proposed compaction may result in further radioactive contamination of their groundwater, thereby posing serious threats to their health. Mr. Perkins believes that the additional radioactivity generated in the spent fuel pool may cause a proportional in-crease in damage to his health and safety by its potential effect on the agriculture pro-ducts grown in his home garden for the con-sumption of him, his family and his neighbors.
Particularly, the Vaughans' foresee additional damage to their home associated with the in-creased amount of moisture that would result from the increased temperature of the first cooling lagoon for North Anna if compaction is granted; Mr. Perkins fears that increased radioactive contamination of his garden, re-sulting from spent fuel ccmpaction at North Anna, would jeopardize his health. The Rogers',
who live at the third cooling lagoon for the plant, are concerned about adverse health ef-fects that may result from increased radioac-tive contamination of Lake Anna if the spent fuel storage capacity at North Anna is more than doubled. [ Sic.]
(CEF " Notice and Brief of Apneal," served January 2, 1979, at 3-5.) CEF adds that one may turn to its con-tentions for details of how the increase in spent fuel storage would affect the health and safety of its 4
members (id. 5)
The Alliance's claim is even weaker. It produced 5
no member who lives closar than 35 miler to the power station (Mr. and Mrs. Bocock, who live in Charlottes-ville, are worried about accidents causing the release of nuclear waste or contaminated water into the environ-ment), though it named a Richmond resident (45 miles from the station) who uses the North Anna River for recreation
" frequently" (Amended Order at 7).
In short, what petitioners have done is assert that some of their members live or canoe near the North 4
The ASLB in the Lacrosse proceeding has said that one should consider a petitioner's contentiens in deter-mining whether his interests may be affected. Memorandum and Order, Dairvland Power Cooperative (Lacrosse Boiling Water Reactor), Doc. No. 50-409 (July 14, 1978) at 3.
Vepco's analysis of CEF's and the Potomac Alliance's peti-tions includes a consideration of their contentions, but we still believe the statements of " injury in fact" to be insufficiently specific, or too implausible, to establish standing.
5 The Alliance's " Motion to Supplement Amended Petition for Leave to Intervene," served September 15, 1978, at 1, says "30-35 miles."
Anna Station. The NRC cases deciding similar claims in the past are not directly on point, because typically they involve the licensing of an entire reactor faci-lity.6 Nevertheless, those cases are instructive as to the type of reasoning that must be followed and the defe-rence that is due the ASLB's opinion. We should look, then, to the " zone of harm" cases -- that series of deci-sions in which the Appeal Board has prescribed circles around nuclear plants and said that it is not reversible error (that is, not " irrational") to conclude that the residents within those circles might have their health and safety injured by the operation of the plants.
The " zone of harm" cases Thus in Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-183, 7 AEC 222, 226 (1974),
the Appeal Board said that if a petitioner lives within 25 miles of the plant, he can be cresumed to have an in-terest that might be affected by reactor construction or operation. Above that distance, at least up to about 50 miles, the question of standing or no seems to be left largely 6
Most of the decisions on intervention in spent i~uel pool proceedings themselves are not very helpful.
For example, an ASLB in Wisconsin Public Service Corp.
(Kewaunee Nuclear Power Plant), LBP-78-24, 8 NRC 78 (1978),
granted intervention to a group that identified "several" members living 2-1/2 to 50 miles from the Kewaunee plant, id. 85, but the details of the petitioners' statement of Interest are not given in the opinion, and in any event the decision is of course not binding on the Appeal Board.
to the ASLB's judgment: the licensing board will not be reversed unless its decision is " irrational." If the would-be intervenor is within 30 to 40 miles, the ASLB is not reauired to conclude that he has no standing, Northern States Power Co. (Prairie Island Nuclear Gener-ating Plant, Units 1 & 2), ALAB-107, 6 AEC 188, 190, 193, reconsid. den., ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973), but the board apparerily may draw that conclusion, depending on the case. Likewise a distance of 50 miles does not "necessarily" preclude a finding of standing, Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1421 n.4 (1977).
But "several hundred miles" is too far.7 The " irrationality" standard One of the things that these cases indicate is that a licensing board's decision on injury in fact should not be disturbed unless it is " irrational" or an " abuse of dis-cretion." Duquesne Licht Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 244 (1973), Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1&
7 See also Virginia Electric and Power Co. (North Anna Power Station, Units 1 & 2), ALAB-146, 6 AEC 631, 633-34 (1973),
Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 n.6 (1973).
2), ALAB-107, 6 AEC 188, 193 (1973).8 See also Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-355, 4 NRC 397, 404 (1976), saying that the Appeal Board, though free to substitute its judgment for an ASLB's initial decision, will not do so lightly.
In the present case, it cannot be said that the li-censing board abused its discretion or that it should be
" tarred with the brush of irrationality." To the contrary, its decision was correct, as we shall demonstrate below.
V. WHY THE ASLB'S DECISION WAS " RATIONAL" The petitions for leave to intervene must fail, be-cause they fail to show with adequate specificity and ade-l0 quate plausibility how the petitioners' health and safety 8
In both these cases the Appeal Board was speaking of ASLB orders granting leave to intervene. In another case affirming the denial of intervention the Appeal Board simply said it found nothing to indicate the ASLB had " abused its discretion." Consumers Power Co. (Midland Plant, Units 1 & 2),
WASH-1218 at 306, 308 (1972) See also Virginia Electric and Power Co. (North Anna Power Station, Units 1 & 2), ALAB-146, 6 AEC 631, 633 (1973)(" abuse of discretion") .
9 Gulf Station Utilities Co. (River Bend Station, Units 1 & 2), ALAB-183, 7 AEC 222, 226 (1974).
10 The statement of potential harm must be specific so that the ASLB will be able to assess whether it is plausible. We can see that specificity and plausibility are two different requirements by considering a hypotheti-cal petition that sets out with great specificity how a proposed nuclear plant might harm the petitioners by enrag-ing malevolent demons who would ravage the countryside in revenge. Such a petition would not, we fancy, establish standing. In most cases, Vepco believes, the CEF and Poto-mac Alliance contentions lack both specificity (particular-icy) and a basis for thinking they are realistic.
may be affected by the proposed -ael pool modification.
The would-be intervenor must allege a means by which his interest may be affected, and the individuals who live and boat near the North Anna Station have failed to make that showing. Indeed, it may be that they could not under any circumstances make the showing because of tha limited nature of this proceeding.
The Potomac Alliance The best the Alliance can do is point to one family that lives within 45 miles of the station and uses the North Anna River " frequently" for recreation and another that lives 35 miles away and uses Lake Anna (Tr. 45).
This is insufficient to satisfy the standards of the Commission's past cases, even those cases that involved the licensing of entire facilities. In Gulf States Utilities Co. (River Bend Station, Units 1 & 2),
ALAB-183, 7 AEC 222, 226 (1974), the Appeal Board re-ferred to a person whose base of " normal, everyday activities" was within 25 miles of a plant as being entitled to a presumption of injury in fact. The Poto-mac Alliance is not entitled to that presumption.
The Alliance cites a number of cases in which recreational use of a water body (or other tenuous rala-tion to a facility) was found sufficient interest (Alli-ance "Brief in Support of Appeal" 6-7). But most or all of those cases affirmed the opinion of a licensing board.
For example, in Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station) ALAB-328, 3 NRC 420, 424 (1976), the Appeal Board said:
Although we think whether the Sierra Club test has been met to be a close question, we defer to the Licensing Board's judgment on it.
And that, of course, is precisely what the Appeal Board should do in the North Anna fuel pool case.
Also, the authorities cited by the Alliance are mostly cases in which the outcome would determine whether or not there would be a nuclear facility (or possession of spent fuel) at all. The present case involves only a change in spent fuel storage capacity, and the poten-tial " injury in fact" is accordingly much less. In another fuel pool case, Pennsylvania Power & Lich' Co.
(Susquehanna Steam Electric Station, Units 1 & 2),
Doc. Nos. 50-387 & 50-388, the ASLB found that a group alleging members residing or conducting " substantial"
activities near the site had standing. (Memorandum and Order Concerning Petitions for Leave to Intervene at 3 (Oct. 26, 1978).) Vepco does not believe the Alliance's alleged activities are substantial.
The difference just mentioned between a fuel pool modification and a full facility licensing is important to the injury-in-fact issue, and we will now show why in our discussion of CEF's appeal.
CEF CEF has named several members who are closer to ~he power station than anyone the Alliance has must -cl, but it is rational to conclude that it has not shown " injury in fact" nevertheless. One might well ask how a licensir+ 5 rd is to decide whether a particular licensing action "may affect" a petitioner's interest. Obviously, the " injury in fact" test must be decided by resorting to the facts
-- and in legal proceedings this usually means to evidence.10A Yet at the stage of a proceeding when 10A We do not think the contrary is indicated by the Commission's recent abolition of the requirement in S2.714 that petitions for leave to intervene be under oath. See 43 Fed. Reg. 17799, 2d col. (Apr. 26, 1978),-
which says that the requirement is being abolished be-cause affidavits so early in a proceeding have been of little value and that the accuracy of intervenors' contentions are assured by the requirement that testi-many at hearings be under oath.
standing to intervene must be decided there is little or no evidence on the record.
The Appeal Board addressed this problem in River Bend 1 & 2:
At the present juncture, there is abso-lutely no way of estimating the likelihood of occurrence, in the operation of the re-actors at bar, of any particular accident --
let alone that which was described by peti-tioners in their statement of interest. In-deed, there is not yet available either the Final Environmental Statement or the Safety Evaluation Report and, thus, neither we nor the petitioners have the benefit even of the staff's own ultimate appraisal respect-ing accident probabilities.
In short, for all the petitioners or any-one else now knows or can ascertain, this licensing proceeding may entail examination of the consequences of an accident akin to the one respecting which they have manifested concern. This being so, it is idle to suggest that the petitioners have failed to assert an interest which "may be affected by (the] pro-ceeding" (Section 2.714(a), emphasis supplied)
- b. Quite apart from then considerations, we are not persuaded that the resolution of the question of a petitioner's standing should hinge upon such a fine point as the precise nature of the accident to which he may happen to have alluded in the explication of his in-terest in the proceeding. This is especiaily so where, as in this instance, we are not con-fronted with a petitioner who resides at such a distance from the reactor site that, prima facie, there would appear to be no reasonable chance of his being at all adversely affected by either normal operations or a credible ac-cident. Without undertaking to draw for these purposes an exact circumferential line around this or any other facility site, we record our belief that, as a general proposition, a person whose base of normal, everyday activities is
within 25 miles of the site can fairly be pre-sumec to have an interest which miaht be af-fected by reactor construction and/or operation.
At the very least, indulgence by a licensing board in such presumption cannot be tarred with the brush of irrationality.
Gulf States Utilities Co. (River Bend Station, Units 1 &
- 2) , ALAB-183, 7 AEC 222, 225-26 (1974)(footnotes omitted)
What the Commission has done to overcome the absence of evidence in the past, it seems, is rely on its expertise alsut nuclear power plants and either 11 create presumptions or take official notice that it is possible for accidents at nuclear plants to have effects many miles away.
In the present case, though, the ASLB was un-willing -- and rightly so -- to presume that the modi-fication of a spent fuel pool might harm people near the station and people who canoe downriver- Despite its repeated requests for specificity, the board was unable 11 This takes the form of simply ar.cepting the petitioner's claims as true. For example, in Virginia Electric and Power Co. (North Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC 98, 105 (1976), the Appeal Board found that the would-be it .ervenor, who cad fabricated the steam generator supports in the power station, might suffer damage to its reputation if the welds failed, even though all of the welds mado by the intervenor had been replaced, because it retained a "close identification with the supports." The applicant had argued that the intervenor's customers were sophisticated purchasers who were not likely to be affected by defects in the North Anna supports unless the intervenor were really responsible.
Vepco suggests, however, that accepting the petitioner's statements of interest as true is justifiable, as the malevolent demon example above suggests, only if the statements have some minimum level of plausibility, or if NRC precedent suggests they may have substanen.
to elicit from the petitioners any basis for supposing the additional stored fuel might injure them in some way or to some extent different from the spent fuel that is already authorized to be stored. The petitioners postulated certain effects at the station (cracking of the fuel pool liner, extra h' eat in the pool) and ways in which local residents might be harmed by radioactivity or heat (air and groundwater) but never were able to successfully connect the two. As in Pebble Sorines 1 &
2 above, the petitioners' allegations are "not sufficiently particularized to afford a basis for judicial standing" (4 NRC at 614) Thus the petitioners failed to carry their burden of demonstrating how their in erests might be affected, and the ASLB's decision was rational.
All the board did, in fact, was follow the type of reasoning used in the Lacrosse proceeding, which is abaut the expansion of spent fuel storage capacity just as this proceeding is. There the licensing board denied leave to intervene to petitioners 50-75 miles from the plant:
Aside from the fact that the distances involved here are somewhat greater than in Prairie Island, we are now dealing with a proceeding of less significance that in the operating license pro-ceeding in Prairie Island. Here the applicant seeks only to increase the storage capacity of its spent fuel pool by a modification of its rack design.
Memorandum and Order Denying Intervention Petition, Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), Doc. No. 50-409 (Aug. 14, 1978), at 4-5, aff'd, ALAB-497, 8 NRC (Sept. 20, 1978) (characterizing the petitioners as residing "more than 75 miles away from the facility," slip op. 1-2).
Accepting that a petitioner's standing does not rest on "such a fine point as the precise nature of the accident to which he may happen to have alluded," and accepting also that in considering retitions to inter-vene the licensing board should not consider whether, 2
in fact, the contentions of the petitioner are valid, Vepco nevertheless contends that in the case of mere in-stallation and use of spent fuel racks, it is not irrational or an abuse of discretion for a licensing board to refuse to take 19 "Duquesne Light Co. (Beaver Valley Power Station, Unit No. 1), ALAB-109, 6 AEC 243, 244 (1973); Mississippi Power & Licht Co. (Grand Gulf Nuclear Station, Units 1 S 2, ALAB-130, 6 AEC 423, 426 (1973), Florida Power and Light Co.
(St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-420, 6 NRC 8, 13 (1977)(app. pendine); Kansas Gas and Electric Co.
(Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 NRC 559, 562 (1975); Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), ALAB-182, 7 AEC 210 (1974),
Northern States Power Co. (Prairie Island Nuclear Gener-ating Plant, Units 1 and 2), ALAB-107, 6 AEC 188 (1973),
reconsid den., ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973).
official notice that the change might result in harm to people living near the plant or using the environs for 3
recreation. There is no evidence to support the credi-bility of the accidents such as petitioners seem to contemplate, and to the contrary, Vepco has out an affi-davit into the record showing that such accidents are not at all likely (Affidavit of E. Ashb- Baum, referr-ed to above). As in Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit No. 2), LEP-78-13, 7 NRC 583, 589, aff'd, ALAB-475, 7 NRC 752 (1978), the " causal connection between the activities under the license and [the peti-tioners' asserted interest} is too remote and tenuous to constitute a cognizable ' inj ury in f ac t . '"
We recognize, given the minor nature of the modi-fication at issue in this case, that our argument implies there may well be no one at all who could assert that his health or safety might be affected by the croposed action.
The Commission addressed this very possibility, in a different context, when it said that "[n]ot every risi:
with which the Commission is substantially concerned is, perforce, one which must be deemed to create standing in some member of the public." Edlow International Co.
13 Cf. Nuclear Engineering Co., Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site),
ALAB-473, 7 NRC 737, 741 n.3 (1978), where the Appeal Board said that the fact that the petitioners were en-gaged in work that used the waste facility in question did not establish that they would be harmed cy a denial of its license.
(Agent for the Government of India on Application to Export Special liuclear Material), CLI-76-6, 3 NRC 563, 571 (1976).
At the prehearing conference, it is true, Vepco counsel advised the licensing board that CEF (but not the Potomac Alliance) appeared, by virtue of diligent recruiting of a few members who lived near the power station, to have met the very liberal requirement:
of intervention. But havin,; no- the benefit of the licensing board's independer judgment, we cannot say that the board's opinion w.. irrational or an abuse of discretion,14 and so we believe it should be affirmed.
De minimis Even if it were true (contrary to our argument above) that one or two members of the Alliance had marginally satisfied the injury-in-fact test, we still doubt that the Alliance would be entitled to intervene, because its interest as an organization would be de minimis.
It has been clear from the beginning that the Alliance is a Washington, D.C., organization whose 14 Also, our judgment in the matter, on what we regarded as a close question, was tempered by a desire to avoid a protracted dispute over standing, in light of the need for haste mentioned above. Finding ourselves in just such a dispute nonetheless, we see no profit in acquiescing in an intervention that Velco has always re-garded as unjustified (see Tr. 76-81).
real interest in this proceeding is a dislike of nuclear power in general. Thus in its " Amendment'tc Petition for Leave to Intervene," served August 24, 1978, the Alliance said:
The Potomac Alliance is a Washington, D.C. area-based organization with approximately seventy-five members living in Virginia and the District.
At least three of its members live within a 45-mile radius of the North Anna Nuclear Pcwer Sta-tion. Many of its members use recreational areas within a 30-mile radius of the plant. . . . The Alliance's principal purpose is to oppose nuclear power and to promote safe, renewable, efficient and decentralized sources of energy.
(P. 1.) This is precisely the kind of interest that does not confer standing in NRC proceedings. See Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610, 613 (1976) (mere academic interest will not confer standing), Nuclear Engineerina Co., Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 742 (1978), Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420 (1976).
The Alliance's belated bringing forward of a hand-ful of people who live within 35-45 miles of the power station appears to be an afterthought designed to satisfy the barest minimum of the standing requirements, and it fails even at that. The best the Alliance can do is point to one person whose family lives within 45 miles
of the station and uses the North Anna River (not the Lake)
" frequently" for recreation.
This is surely a de minimis interest, insufficient to satisfy the standards of the Commission's past cases.
For example, the ASLB in Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-78-27, 8 NRC 275, 277 (1978),
said that an applicant, even in a full operating license proceeding, is entitled to a clear and current showing that "a significant number" of the intervenor's members do in fact reside near the plant. And in Edlow International Co., CLI-76-6, 3 NRC 563, 575 (1976), the Commission ques-tioned whether petitioners, several of whose members al-legedly lived in India, might have only de minimis inter-ests in a proceeding to license the export of fuel to India.15 15 The Commis on noted, however, that export licensing cases me: ce treated differently from domestic cases, 3 NRC at 570-71.
A de minimis argument apparently similar to Vepco's has been made by the applicants in the Fermi 2 operating license proceeding. See Memorandum and Urder with Respect to Various Motions and Petitions.
Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, Doc. No. 50-341 (Nov. 13, 1978)
Apparently in Fermi 2 one of the petitioner's members lives within one mile of the plant, while others live farther away. The ASLB did not decide the issue but did say this:
We are unaware of any "de minimis" doctrine such as that being advanced by the Applicants.
If one member is demonstrated to have an inter-est (and authorizes the organization to repre-sent that interest), the showing of interest is deemed adequate.
Id. 14 n.8.
The same argument can be made about CEF, though with less force. CEF is a northern Virginia or-ganization (its mailing address is in McLean) and has a rather abstract interest in the North Anna plant:
Citizens' Energy Forum, Inc. is an educational nonprofit organization working toward a policy of safe and realistic alternatives to nuclear energy.
(CEF " Supplement to Petition for Leave to Intervene,"
Aug. 21, 1978, at 1.)
We recognize that a number of cases hold that an organization may establish standing through its mem-bers identifying at least one member who can show injury in fact. Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 422-23 (1976), Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-322, 3 NRC 328, 330 (1976), Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Units 1 & 2),
ALAB-136, 6 AEC 487, 489 (1973), Duquesne T,ight Co .
(Beaver Valley Power Station, Unit No. 1), ALAB-109, 6 AEC 243, 244 n.2 (1973) Those cases, though, involve the licensing of whole facilities, with greater risk of injury than the modification of a spent fuel pool. The risk of injury to any of the Alliance's members, on the
other hand, is much less -- so slight, in fact, as to be de minimis.
VI. DISCRETIONARY INTERVENTION Under Pebble Springs, of course, the Commission still might permit CEF or Potomac Alliance to intervene as a matter of discretion (4 NRC at 614-17). The petitioners do not argue the point, except at page 7 of the CEF appeal brief:
We have raised substantial points which were ignored by both the Applicant and the NRC, in-cluding contentions relating to the installation of additional embedments in the pool floor and the lifetime of the zirconium cladding of the fuel assemblies and of the stainless steel pool structures. Solely and directly because of con-tentions raised by CEF, a vice president of Vepco admitted publicly that the proposed compaction would be used, at least in part, to hold overflow waste fuel that would be transshipped from the Surry Nuclear Power Station.
The " substantial points" that CEF rays were ignored are not specified in its appeal brief, but we believe most or all of them are not substantial at all. Nor 17 The embedments, which are noted in Vepco's application to install the new racks, are installed in the already-licensed fuel pool. Vepco's Answer to Amended Petitions for Leave to Intervene, Sept. 7, 1978, at 12.
The life expectancy of Zircaloy clc.dding in water is a generic issue that has been decided in other proceedings.
See Portland General Electric Co. (Trojan Nuclear Plant),
EBF- , 8 NRC (Oct. 6, 1978), slip op. at 11-13.
The transshipment of spent fuel from Surry to North Anna is irrelevant, because a separate amendment to the North Anna operating license would be required to permit such a thing if it were to be done.
do CEF or the Alliance suggest that they have any special expertise or access to qualified experts.
CEF has no legal counsel as yet and makes a point of the lower standards to which it should be held as a consequence. In fact, CEF's and the Alliance's participation thus far has tended not to aid the decisionmaking process but rather to muddy the waters.10 18 CEF has confused the meaning of " active" geologic faults (see Tr. 88-89) and loss-of-coolant acci-dents. In fact, CEF has charged that the licensing board lacks expertise because it does not understand the meaning of a " loss-of-coolant accident." A look at the transcript page cited by CEF reveals, however, that CEF was using the term loss-of-coolant accident in an unconventional way. See Tr. 21 and 10 CFR Part 50, App. A, " Definitions and Explanations," where " loss of coolant accidents" are defined.
Moreover, CEF and the Alliance have raised issues that are outside the scope of the proceeding (for example, that Vepco may have to store the spent fuel at North Anna permanently) or that are frivolous (for example, that Vepco lacks the financial resources to replace the fuel racks, and that the fuel building, which is on bedrock, may set-tle because the service water pump house, which is on sandy silt, has). This scattergun approach to contentions is hardly in the interest of sound decisionmaking.
VII. CONCLUSION Vepco has always believed that admitting CEF and the Alliance to this proceeding would be unjust. Given the limited nature of the proposed modification, Vepco feels it woulc be an extravagant waste of resources to go through a public hearing that would only result in the same outcome as other hearings of the type. See Portland General Electric Co. (Troj an Nuclear Plant) , LBP- , 8 NRC (Oct. 6, 1978), Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41 (1978); Duauesne Light Co. (Beaver Valley Power Station, Unit No. 1), ALAB-484, 7 NRC 984 (1978)
Now the licensing board has decided that what is wise policy is also correct under NRC precedent, and Vepco does not believe the board's decision can be called irrational. We urge the Appeal Board to affirm.
Respectfully submitted,
' VIRGINIA ELECTRIC AND POUFR COMPANY By /s/ James N. Christman James N. Christman Of Counsel Michael W. Maupin James N. Christman James M. Rinaca Hunton & Williams P.O. Box 1535 Richmond, Virginia 23212 DATED: January 17, 1979
TABLE OF AUTHORITIES CITED CASES Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), ALAB-182, 7 AEC 210 (1974) . . . 19 Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420 (1976) . . . . . . . . . . . . . . . . 14, 22, 24 Consumers Power Co. (Midland Plant, Units 1 & 2),
WASH-1218 306 (1972) . . . . . . . . . . . . . . . 12 Consumers Power Co. (Midland Plant, Units 1 & 2),
LBP-78-27, 8 NRC 275 (1978) . . . . . . . . . . . 2, 23 Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), Doc. No. 50-409, Memorandum and Order (July 14, 1978) . . . . . . . . . . . . 2, 9 Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), Doc. No. 50-409, Memorandum and Order Denying Intervention Petition (Aug. 14, 1978), aff'd, ALAB-497, 8 NRC (Sept. 20, 1978) . . . . . . . . . . . . . 18-19 Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit No. 2), LBP-78-13, 7 NRC 583, aff'd, ALAB-475, 7 NRC 752 (1978) . . . . . . . . . . . 20 Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, Doc. No. 50-341, Memorandum and Order with Respect to Various Motions and Petitions (Nov. 13, 1978) . . . . . . . . . 1, 23 Duke Power Co. (Catawba Nuclear Station, Units 1 & 2),
ALAB-355, 4 NRC 397 (1976) . . . . . . . . . 12 Duke Power Co. (Amendment to Materials License SNM-1773 for Oconee Nuclear Station Spent Fuel Transportation and Storage at McGuire Nuclear Station), Doc. No. 70-2623 (Nov. 2, 1978) . . . . . . . . . . . . . . . 2 Duquesne Light Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243 (1973) . . . . 11, 19, 24 Duquesne Light Co. (Beaver Valley Power Station, Unit No. 1), ALAB-484, 7 NRC 984 (1978) . . .
3, 27
Duquesne Light Co. (Beaver Valley Power Station, Unit No. 1), LBP-78-16, 7 NRC 811 (1978) . . . 3 Edlow International Co. (Agent for the Government of India on Application to Export Special Nuclear Material), CLI-76-6, 3 NRC 563 (1976) . . . . . . . . . . . . . . . . . . . . . 20-21, 23 Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-420, 6 NRC 8 (1977),
agg. pendinz . . . . . . . . . . . . . . . . . . . 19 Gulf States Utilitier, Co. (River Bend Station, Units 1 & 2), ALAB-183, 7 AEC 222 (1974) . . . . . . . . 10, 12, 13, 16-17 Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 NRC 559 (1975) . . . . . . . . . . . . . . . . . . . . . 19 Louisiana Power & Light Co. (Waterford Steam Electric Station ~, Unit 3). ALAB-125, 6 AEC 371 (1973) . . 11 Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-130, 6 AEC 423 (1973) . . . . . 19 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-107, 6 AEC 188, reconsid. den., ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973) . . 11-12, 19 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41 (1978) . . . . . . . . . . . 27 Nuclear Engineering Co., Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737 (1978) . . . . . . 20, 22 Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), Doc. Nos.
50-387 & 50-388, Memorandum and Order Concerning Petitions for Leave to Intervene (Oct. 6, 1978) . . . . . . . . . . . . . 14-15 Portland General Electric Co. (Troj an Nuclear Plant) ,
LBP _ , 8 NRC (Oct. 6, 1978) . . 3, 25, 27
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610 (1976) . . . . . . . . . . . . . . . . . . . 7, 18, 22, 25 Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2),
ALAB-322, 3 NRC 328 (1976) . . . . . . . . . . 24 Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Units 1 & 2)
ALAB-136, 6 AEC 487 (1973) . . . . . . . . . . . 24 Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2) , ALAB-413, 5 NRC 1418 (1977) . . . 11 Virginia Electric and Power Co. (North Anna Power Station, Units 1 & 2), ALAB-146, 6 AEC 631 (1973) . . . . . . . . . . . . . . . . . . . 12 Virginia Electric and Power Co. (North Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC 98 (1976) . . . . . . . . . . . . . . . . . 17 Virginia Electric and Power Co. (North Anna Power Station, Units 1 & 2), Doc. Nos. 50-338 SP
& 50-339 SP (Proposed Amendment to Operating License NPF-4), Amended Order and Recommenda-tion on Petitions for Leave to Intervene (Dec. 19, 1978) . . . . . . . . . . . . . . . . 2, 8 Wisconsin Public Service Corp. (Kewaunee Nuclear Power Plant), LBP-78-24, 8 NRC 78 (1978) . . . 10
at ,
REGULATIONS 10 CFP S 2.714 . . . . . . . . . . . . . . . . . .
6-7, 15 10 CFR S 20.1(c) . . . . . . . . . . . . . . . . . . . .4 10 CFR Part 50, App. A . . . . . . . . . . . . . . . 26 STATUTES Atomic Energy Act . . . . . . . . . . . . . . . . . . . . 7 NEPA . . . . . . . . . . . . . . . . . . . . . . . . . 7 OTHER 43 Fed. Reg. 17799 (1978) . . . . . . . . . . 15
,a ,
CERTIFICATE OF SERVICE I hereby certify that I have this day served Vepco's Brief in Opposition to the Intervention of CEF and the Potomac Alliance upon each of the persons named below:
Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTM. Chief, Docketing & Service Section Valentine B. Deale, Esquire 1001 Connecticut Avenue, N.W.
Washington, D.C. 20036 Dr. Quentin J. Stober Fisheries Research Institute University of Washington Seattle, Washington 98195 Mr. Ernest E. Hill Lawrence Livermore Laboratory University of California Livermore, California 94550 Mr. Irwin B. Kroot Citizens' Energy Forum, Inc.
P.O. Box 138 McLean, Virginia 22101
James B. Dougherty, Esquire 307 Eleventh St., N.E.
Wasn.agton, D.C. 20002 -
Steven C. Goldberg, Esquire U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Anthony J. Gambardella, Esquire Office of the Attorney General Suite 308 11 South Twelfth Street Richmond, Virginia 23219 Alan S. Rosenthal, Esquire Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Lawrence R. Quarles Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 By /s/ James N. Christman DATED: January 17, 1979 James N. Christman, Counsel for Virginia Electric and Power Company