ML20138C156

Order Granting Mothers for Peace & Denying Sierra Club & Consumers Organized for Defense of Environ Safety Petitions to Intervene in Proceeding.Served on 860331

ML20138C156
Person / Time
Site:	Diablo Canyon
Issue date:	03/28/1986
From:	Bright G, Cotter B, Harbour J Atomic Safety and Licensing Board Panel
To:	CONSUMERS ORGANIZED FOR DEFENSE OF ENVIRONMENTAL, FRIENDS PEACE EXCHANGE (FORMERLY MOTHERS FOR PEACE), SAN LUIS OBISPO MOTHERS FOR PEACE, Sierra Club
References
CON-#286-618 86-523-03-LA, 86-523-3-LA, OLA, NUDOCS 8604020375
Download: ML20138C156 (10)

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& SERVED NAR 33 ggg, UNITED STATES OF AMERICA UNRC NUCLEAR REGULATORY COMISSION ATOMIC SAFETY AND LICENSING !$$RMAR 31 P2 :30 Before Administrative Judgg: y g,.

B. Paul Cotter, Jr. , Chair dkA$1 Glenn 0. Bright Dr. Jerry Harbour

)

In the Matter of: ) Docket Nos. 50-275-0LA

) and 50-323-OLA PACIFIC GAS AND ELECTRIC COMPANY )

) ASLBP No. 86-523-03-LA (Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) ) March 28,1986

)

MEMORANDUM AND ORDER RULING ON PETITIONS TO INTERVENE On January 13, 1986, the Nuclear Regulatory Comission published a Notice of: (1) Consideration of Amendments to facility operating licenses for Diablo Canyon Nuclear Power Plant Units 1 and 2; (2) a proposed no significant hazards consideration; and (3) opportunity for hearing. 51 Fed. Reg.

e 1451 (1986). The Diablo Canyon units are located in San Luis Obispo County, California, and the notice advised in part that:

The amendments would authorize the licensee to increase the Unit I and Unit 2 spent fuel pool storage capacity from 270 to 1324 storage locations for each unit. The proposed expansion is to be achieved by reracking the spent fuel pools with a combination of

- poisoned racks and nonpoisoned racks in a two-region arrangement.

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Timely petitions for leave to intervene were received from the Mothers for Peace, the Sierra Club, Santa Lucia Chapter (" Sierra Club"),

and the Consumers Organized for Defense of Environmental Safety

(" CODES"). Responses by the Applicant, Pacific Gas and Electric Company

(" Applicant") and the Nuclear Regulatory Connission Staff (" Staff") were received in early March.

The Staff response to all three petitions stated in general that they satisfied the " aspects" requirements of 10 CFR 6 2.714 and that petitioners should "be given a reasonable period of time to cure" the petition's deficiency as to standing. Applicant filed an answer to the CODES petition only, although it acknowledged the filing of petitions by the Mothers for Peace and the Sierra Club. Applicant finds the CODES petition defective for failure to identify a member with standing and failure to identify an interest or individuals who might be harmed.

Consequently, Applicant concludes that~ the CODES petition "is fatally defective and should be denied". Applicant did not respond to the petitions of the Sierra Club or Mothers for Peace.

The questions presented by the petitions and responses are (1) whether the individual and organizational petitioners have standing to intervene in this proceeding; and (2) if so, whether they have

, identified with particularity the specific aspect of the subject matter of the proceeding they seek to litigate.

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5-I. Regulatory Requirements A. Intervention The requirements for intervention in NRC proceedings are set out in 10 CFR b 2.714 (1985). Section 2.714(a)(2) provides in pertinent part that:

... . The petitions 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 ...

and the specific aspect or aspects of the subject matter of

-the proceeding as to which petitioner wishes to intarvene.

Subsection (d) elaborates on the quoted requirements by directing Boards, in ruling on petitions to intervene, to consider:

... (1) The nature of the pe.titioner's right under the Act to be made a party to the proceeding.

(2) The nature-and extent of the petitioner's property, financial, or other interest in the proceeding.

(3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest ... .

The Comission has explained the context in which those three factors are to be applied by stating that in determining petitioner's hearing and intervention rights, it will apply " judicial concepts of standing."

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), 11 NRC 438, 439 (CLI-80-10, 1980). The Commission explained the standing requirement to mean that petitions must satisfy a

a two-pronged test. First, one must show an " injury in fact" by alleging some injury that has occurred or will probably result from the action involved. Second, one must allege an interest " arguably within the zone of interest" protected by the statute. Id. In short, petitioners must show that they have a sufficient-stake in the issuance of the in; int licenses to warrant a hearing and Board resolution of the controversies petitioners may subsequently present. See Sierra Club v. Morton, 405 U.S. 727, 731-732 (1972); Warth v. Seldin, 422 U.S. 490 (1975).

The 2.714(a)(2) requirement for demonstrating an affected interest,

.namely, to identify "the specific aspect or aspects of the subject matter of the proceeding as to which intervenors wish to intervene,"

means a showing that the subject matter is within the scope of the instant proceeding and that litigable issues are possible. If the statement describing the aspects contains only subject matter outside the scope of the proceeding, the petition must fail. If on the other hand, one or more of the listed " aspects" can reasonably be construed to encompass potentially litigable issues then, barring some other reason for denial, the petition should be accepted. Cf., Metropolitan Edison Col. 'Threr Mile Island Nuclear Station, Unit 1), Slip Op. at p. 6 (ASLB Memorandum and Order dated September 21,1979).

We agree that 4

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a Section 2.714 should not be read and construed as establishing secretive and complex technicalities such as in some other areas of the law are associated with special pleading requirements for which some practitioners have an almost superstitious reverence.

Philadelphia Electric Co., (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974).

At the same time we expect clarity and completeness in all pleadings.

However, in recognition of the intricacies of the standing criteria, section 2.714(a)(3) provides that a timely petition to intervene may be amended up to 15 days before the special prehearing conference held pursuant to section 2.751a without leave of the presiding officer. One purpose of such a prehearing conference is to:

Consider all intervention petitions to allow the presiding officer to make such preliminary or final determination as to the parties to the proceeding, as may be appropriate ... .

Where, as here, a prospective intervenor is an organization, it must establish standing either on its own behalf or on behalf of its individual members. Mere interest in a problem will not satisfy organizational standing. Edlow International Co., 3 NRC 563 (CLI-76-6, 1976). Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), 3 NRC 328, 330 (ALAB-322, 1976). If standing rests on the interest of individual members, the specific members must be identified, how their interests may be affected must be shown, and the members' authorization to the organization to intervene must be established. Allied General Nuclear Services (Barnwell Fuel and

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Receiving and Storage Station), 3 NRC 277 (LPB-76-12, 1976), aff'd., 3 NRC 420 (ALAB-328, 1976).

After a petitioner has met the " interest" and " aspects" requirements, it must provide (15 days prior to a special prehearing conference) "a list of contentions which.the petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity." 10'CFR Q 2.714(b). The failure to provide at least one such contention is fatal.

II. Discussion Applicant asserts that the CODES petition to intervene should be denied because it fails to identify: (1) the nature of petitioner's right to intervene; (2) the specific members whose interest is affected and who have authorized CODES to act on their behalf; and (3) the nature of any such member's interest in the' proceeding. The Staff agrees that the petition is deficient in failing to identify CODES members, but finds that the petition meets the aspect requirement of 10 CFR 6 2.714.

The Staff takes the same position on the petitions of Mothers for Peace and the Sierra Club.

a A. Interest (Membership)

The interests alleged by the three organizations on their own behalf are too generalized to satisfy the criteria for interest and standing of organizations. Edlow International Co., supra, at 572-574.

Therefore, all three organizations are required to establish standing through individual members in reasonable proximity to the Diablo Canyon facilities. Subsequent to the responses by Applicant and Staff, the Mothers for Peace filed the sworn statement of Nancy Culver, a member of the organization residing in San Luis Obispo. The statement was notarized on March 18 and filed with the Comission on March 24, 1986.

We find that Mothers for Peace have satisfied the membership requirement for standing.

CODES and the Sierra Club have not filed anything attesting to the identity of a member within the requisite geographic range who authorizes the organization to act on the member's behalf. This fatal deficiency can be corrected by filing statements from at least one of those members living in proximity to the Diablo Canyon facility which would show how the member would be affected by the proceeding, that the member's interest is within the zones of interest to be protected or regulated by the statutes and rules applicable to this proceeding, and that the member has authorized the organization to protect his or her interest. Absent such a statement or statements, the CODES and Sierra Club petitions must fail.

a B. " Aspects" The Board finds at least one " aspect" in each of the petitions that may be sufficien'. for the framing of a contention. The'C0 DES petition questions: (1) whether the spent fuel pool's seismic design, as modified by che proposal, is adequate; and (2) whether human error and its possible consequences in the operation of' the reracked spent fuel pool have been adequately considered. Similarly, both Mothers for Peace and the Sierra Club question the seismic integrity of the proposal. In addition, the Sierra Club queries whether Applicant has adequately considered the loss of spent fuel cooling in the reracked facility.

Applicant's assertion that the CODES statement of aspects should fail for lack of. specificity imposes too great a burden on this ,

preliminary criterion. Staff finds the statement of aspects adequate to frame a contention in all three instances. We agree. The aspects stated are " narrower than a general reference to operating statutes",

and we find they meet the regulatory requirement in the instances noted above. Consumers Power Company (Midland Plant, Units 1 and 2),

LPB-78-27, 8 NRC 275, 278 (1975).

III. Prehearing Conference The timing of the special prehearing conference is partially dependent upon the Board's eventual ruling on the organizational

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standing of CODES and the Sierra Club. Accordingly, any such submittals, including admissible contentions for litigation, are to be received by the Board and the parties on or before April 29, 1986. The prehearing conference will be held May 13, 1986 in the vicinity of the plant. The exact location will t>e announced at a later date.

ORDER For all the foregoing reasons and in consideration of the entire record in this matter, it is, this 28th day of March, 1986 ORDERED

1. That the petition of the Mothers for Peace to intervene in this proceeding is granted contingent upon the timely filing of an admissible contention for litigation;

2. That the petitions of the Sierra Club and Consumers Organized for Defense of Environmental Safety to intervene in this proceeding are denied for failure to satisfy the requirements of 10 C.F.R. 5 2.714(d), and the petitions are dismissed.

These petitions will be reconsidered, if, on or before April 29, 1986, the Sierra Club and CODES file an amended petition to intervene (including an admissible contention for

-i litigation) which satisfies all the requirements set forth in 10 C.F.R. Part 2.

3. The prehearing conference will be held in the vicinity of the plant on May 13, 1986.

Gif 9 B. Paul Cotter, Jr/. Chairman ADMINISTRATIVE JUDGE

$./b GTenM O. Bright.

ADMINISTRATIVE JUDGE

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Jerry Hgrb6ur W

ADMINISTRATIVE JUDGE