ML20211H438
| ML20211H438 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 09/19/1997 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Bollwerk G, Kline J, Murphy D Atomic Safety and Licensing Board Panel |
| References | |
| CON-#497-18513 ALAB-447, ISFSI, LBP-77-59, NUDOCS 9710060387 | |
| Download: ML20211H438 (11) | |
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/f5/3 UNITED STATES
/ tan as%h
. S NUCLEAR REGULATORY COMMISSION DOCKETED Wf.6HINGTON, D C. 20666-0001 f g USNRC lii i September 19,1997 t
g 17 SEP 22 NO $2 OFFICE OF THE cE NERAL CoVNSE L ypj[i- OF SECl't!:.i/6Y G. Paul Bollwerk, lil, Chairman RULEWM AND Dennis D. Murphy ADJUDCADONS STAFF Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Coramission Washington, D.C. 20555 Washington, D.C. 20555 1 Dr. Jerry Kline l Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 in the Matter of Private Fuel Storage, L.LC, (Independent Spent Fuel Storage Installation)
Docket No. 72 22-ISFSI
Dear Administrative Judges:
In the *NRC Staff's Response to Request for Hearing and Petition to Intervene Filed by the Confederated Tribes of the Goshute Reservation and David Pete," dated September 18,1997, the Staff addressed, inter alla, the Confederated Tribes' eligibility to part! eipate in this .
proceeding as an interested governrnental entity, pursuant to 10 C.F.R. 9 2.715(c). Id. at 1417, in connection with that discussion, I am enclosing a copy of the decisions in F;xon Nuclear Co.
(Nucioar Fuel Recovery and Recycling Centsr), ALAB-447,6 NRC 873 (1977), and LBP 77 59, 6 NRC 518 (1977), in which a California governmental unit was permitted to participate as an
" interested State" in a proceeding concoming a spent fuel reprocessing facility in Tennessee.
! Inasmuch as these decisions discuss the meaning of the term
- interested State," the Staff believes that they may be relevant to your consideration of this issue.
Sincerely,
/Lb C Sherwin E. Turk Counselfor NRC Staff
Enclosure:
As stated -
cc w/ encl.: Service List 00{D 2 p goi
.--w p.. + s.-- - ,., , - , . . ,,--e, , - . . - - - - - + -
Cite es 6 NRC B73 (1977) ALAB447 UNITED ETATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD t
Jerome E. Sherfman, Chamnan i Richard S. Salamen Dr. W. bed Johnson
' I Docket No.liO4iS4 Inthe Metter of i
DOCON NUCLEAR COMPANY,INC.
S 5
peueleer Fuel Recovery end Recycling Center) December 13,1977 i
4 Upon appeal from a Licensing Board order (LBP-77-59,6 NRC 318) granting intervention, the Appeal Board agrees that a distant sense may be admitted as an " interested State" pursuant to 10 CFR 52.715(c).
Licensing Board order affirmed.
RULES OF PRACTI ?.: INTERVENTION BY A STATE i
j A state seeking intervention pursuant to the "interestcJ State" provisen of 10 CFR 52.715(c) need not be the state in which the reac-ter is located.
ATOMIC ENERGY ACT: PARTICIPATION BY A STATE Section 274.I of the Atomic Energy Act,42 U.S.C. 62021(1),
etich directs the Commission to permit the State where nuclear ac-amnes are to be located to participate in a licensing proceeding i schout necessarily becoming a party, does not preclude the Commis-sion from permitting Gher states similarly to participate.
Mosere. Edward L Cohen, Leonard N. Troesen and M. Reemy Ancerrow, Washington, D.C., fc.r Exxon Nuclear Company, Inc. i 873
Sea. Mashryn Gudseet Olshoest h,. Cali. Is its Notice of Pare =ar=aia=
- the Emergy em sensed that it has foresa, and Resessa. Hemisest M. assusa and taneensa esclusew authoney for she"certsfication of, _ . - ' thennel power plants, Cao Lampison. Washsngeon, D.C., for the Califorana transansseios lines, and scimeed f=aheira in Califerana." It further asserted
- Emerer Resources Conservenion and ' Dewetopment that $25524.1 of the California Pubhc Resources Code em
. prohihuts ramm===iam cestdicanos of any new asacisme power pleet ma==== 40poon itassnan and asues A. Sassen inr the seguinas the reprocessing of fossi rods antil(1) "the Ands Needser mag =a.ma y camm-i-i sengf. tiv.t the United Sasses througit its authorimod agency had identsfied and '
asesowed, and these emises a nachamanew for the consenscnos and opera-sien of anciser fuel rod soprocessoas pismes," and (2) the Easrgy Comm.
DECINOg asission's finshags are sevsewed by the Cahfornia Legislature. Fearther-asess, theen---saam is seguised "to Had on a - W -==- hemis that Opimies of her.Shasemme: facilities wish adogmase capocay so suprocess anciser fusi rods fross a cerafied aucteer facility or to sense such femel if mach storage is approved This is a psocee6ag on the appaie.aia" of Exzen Mucieer % by as authoriand assocy of the Unseed Senses ase is acasal operasion or
("F====") for a persmet so conseriscs a fachey for the sessage and suprocess. wiE he in operanosa at the tisme susch assciser facshty requeres such so.
ing of spent Assi frees lighs.weser ancinar power som la MAB 425
- processens or storage . . . ." Cal. Pub. Res. Code $25524.l(b).
- d=ridad, en a carm6ed quesmos frees the *ww-mimy Beant, shot she pro.
costas shesdd met be anspended pentag d====ia= by theem==immiam og The Energy ra==mi=iam therefose argises that it "has a vital inessuet in the what duecmos so aske in its r==l==== king prv=adia, en sim use M smased issues involved is and else uitumees decision on this =pphe=ria= to coastanct emide Amst. The Licensing Beasd shessupon immend an esder Aspessus of a mucher fuel red segressasses pimer "* .
wesisus penness m innervene and se peniapeer in ste poos eding," 5:==a= Emmon's =mim argummet is that $2M.I of the Asomsic Energy Act (42 appseis frem that portson of the onier pesamismus she posesripmenar of sie . LLS.C. 62021(1))' prohnbets theca====ia= frees pensutting any stase other Cnidernia Easrsy Resources Commerwesion and De a.p , c -.;,,, ths a the one in which the sencear in q==*- is to he located to partsapete in a hceasses proceedag as an interessed State. N-aher $274.1 itself nor -
("she Eassay r===i=====") as as "imessessed Sease" pusmaamt no le CFR 52.715(c). The staff supports she decision belew, as does the Eassay Cons- anytimag is its leguimuw hessory supports trat thesis. Isuleed, if it were asemass inmaat
- welid, them the ra=====a='s lomassemens practice of paramunes stases Sectem 2.715(c) of shis Comuassaien's Rules of Peaceice saaess.
whose heedes are close so the sier of a proposed nuclear faahey to per-The pousshes ofEcor wiE affeud a sepossomassise of as innessmeed Sense hapaceis iss incemmag c _ " 4 under $2.715(c)* would be unlawful-as which is met a pony a ===a==u oppanummy no pensapsae and se iniro.
doce evidemos, imeerregone wa==== and advise &cca==i==ia= wish. ***
- 8-aut seguiring the sepassensasive so enke a poumos wish sospect to the '** .
"""*- 'ssasse2x_apnmens:
inrah suspect se auch applicemen serc- Esemme % as accuser as se The gisesesse befose us is the mew of the serm "insesessed Sanse" in that =ench shee======="s anseheney is commamed passenes se ad==*a= r c., she -
rule, shes y=e poempt assice se me $smas er Sesam is which she asunny wiR he h af she Shas et she licemer amplicasa== and shmE aNeed M esperenessy for Sense sessassmaammes se emur endemos, mesweesse essesamm, and aduime she C- as se
'6 samC tes tAmens 3. 3977).
. - = =.e--n- ~. % ~ c. _ .s e , r -= ~ ,,.
'The Emmerc.--- - glad ins heist en asonalInse, sepsmomens shes she lessmens ans - cLg.M-32, 5 AEC 287,287-88 (s9MB (pensapmans of henryland; seassess in Pommaylmeminb;
"'"8 *F ** """ ""ememen of as opmuel commest and she seauhme assusarJamsien of ins - #srespo Anshuse Psedic $srause C. (SmiBy Gammeshe Semesa. Demsener-l). ALAB 348,8 o""mi semams's edeise. see asher pony houng ehemseed, as asmse in less Nied knsf. e m ,,, ,,,, g SM 875' 9 .
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does hope to obtata information from this prac fia= " its interest goes absurd result. Secuon 274.1 and the legislative histary alluded to by Frirna mich deeper than that. Under its statute, the Energy Commmino may not
,,,ahlah only that the state of ine=nna has a right to parucipate; they do hceme a melear power plant unless it finds that there wi!! be facilities not protubst the C==i" ion from grantmg other states permimna to do avadable offsite for either the reprneesmf or storage of the spent fuci g which will be produced by that plant.a* At present, there does not exist in In fact, I think it clear that the Ca==i" inn had donc mwe than $274.1 the United States an operating -.--dal repr~wung plant or a facility required it to do in affording states the opportunity to participate in its for the storage of spent = rte =r fuel which is available to new customers.
bcensing pra dings without having to estabhsh a tight to intervene as a
- For this reason, California has a significant interest-in the de una as to ;
I party. Section 2.715(c) extenA this opportunity to "an interested State," whether the construerma of a facility of the type propnsed by Exxon in this not merely to a state in which the traanr wi!! be located Had the Cnmma- pra-dnin should be authmued." 3 sico vnean' to limit participation to the latter categwy of state, it could Exxon also argues that "other =A=ai<== are available to the Energy casily have used appropriate !===9=* to express that pt,rpose. That it did C~a=3*= ion for ah'=iaian informarma which might be necessary to carry not do so man fests an intent to afford recognition to a broadcr range of in- out its state statutory ==ada'a "" As I have Aiad that the Energy '
Ca===i==Ina has a right to partacipate in this pra dian on a ground other
,,,,333, My constructica of 52.715(c) is reinforced by the recent decesson of the than its need for informanna, this argum,nr is irrelevant. %maarly irrele-en-manna in Pubhe Servke ca. of New Hampshare (Seabrook Staraon, want is Fnna's fear that a construnma of $2.715(c) which would grant the Units 1 and 2), CLI-77-25, 6 NRC 535 (October 14, 1977). In that case, Energy C~==iaiaa the right to participate would foster confusion and M amerts had been allowed to parucipate as an interested State even delay in all nuclear trenciny pra*= 1 fail to see why such a decision, though the reactors were to be built in New d Hamp5We.' After the Com-However, it had ' which simply apphes a ('ammanen rule, should create confusion. And not n*6'iaa d for review of the Appeal Board's aci*i^a h 32.715(c) does not ennmrion an interested State's right to participate on a maEnn granted such review, Ma d'"erts asked to be made a party to t e review pra dian_ statmg that it had previously remained s?.at heemiar it %
supported a pention for review of another party. The Ca=="una con- ;
,%,-m 2552( of sne cahranaa stam anno pah = the Emersy 0 - - " fre strued its rule governtag review of our Mi^= (10 CFR 82.786) to require ccm.ma a e, power plant ra,unas the reprocenans of fuel rods ~ unien as finds mas the idna for it. Nevertheless Fedeul sowemaicas "has idenufied and approved. and there esmia a *tasy for the coa.
all those supporung review to petition the C~
the C~a=i ian agreed to let M*===-h=,ere participate in the review pro. " *ad operatM W M md WW h" I am act certam as to whcht 4
~,d.na One of the factors which permaded it to do so was that "the par- thu promon will have any pracical mm i-* because, prescady, wirgia eranaum fuelis hsing process, as a gogg avadable and is aught therefore be dMedt 80 say thes any plaat p repwsine e ticipanon of an interested sovereign state in ouT spens fi.es.
party or otherwise, is always desarable . . . . "" i
+*0m br-M :s. 3977, two days before usuance of the <a-- below. Cahfornia added a Exxon argues that, even if geography is not a faminry factor,it was error === % 2552(25 m as sa u bhc ass-ces code. chapser i144.1 aws tw7. >~= hay sat - (
to perant the Energy Cam = anna to parecipate as an interesteri state A lE h - qqmres the bgy ra='"== 80 transmut m W leculasure by $
l January 86. 397s. "its descr-== as so whether all of the fandaags requared by Ger==
beraine its interest is only inforhaM While the Energy en=== anna 25524.1 and 23524 2 caa be made as that time." If the findings e==nas then be made, the Com-
==a^= is reesired so m=w-i to the legislature whdh any (mrdan for which a motice of l '*='aan has been filed with the c -" before January 3,3977, am u be *=-et frons the reqaur--ar, of urr=a'=125524.5 and 235241la W the later % !
AEC set. s43 (1974) tpartacapataos of thacas; rmnar is ladiana); f%hhr Serware CA ofin- theraa======= is direcsad to e the lases "enusM demand W ash m damas (hte:We Hdt Actear Generat.as Stataca. Unass I saws 2). txensing Board Order so stuckofthe need can be met by "moescaerataceal aber= T""rWe conservsson Masch 12.1976, at p.16(-ap what)(parwy== of h=2dr. 8"d^"s in Im* board===P M measures" or any "pracical at latave =~kanaagy
- W6 . new povision may con.
3,n,ue Elsesrar A Gas Ca (Hope Creet e.,=-raring hw Umu i and 2), t.acessant cravably remalt is sosne prenamt == dan plaats being czemgA.J fross the basac provassoas of Order of Apnt 3,1974. as p 6(27 ""(para T-= of Delawase; reaaors am W the statuac, those prc,secas ase stall on the books and apply to as pr pa=ad piams not grasied, Jerseyt f%6!ac Sarsect CA of New #esupsaar(Seabrock (parwT== of Saatana.
" " Unna
- 1 and 2L 8 ==for aos qualafymg for, an esempoon. Therefore. the recens a=wMmens does act change my somed Order of March 15,1974. at pp. 3-2 er " coad== that the Emergy r a ===='s insercas in tsus paadar is sufficient so give it the suectors in New Hampshasek right se parwmar* mader $2.785(c).
- f.accan.ag Boar #ar - -- "" osder of March 15,1914. at pp.1-2. "Snef, p. 30.
"6 NaC 335 at 537.
877 876 t
, . t
[ . _ _ _ _ . _ . _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
l 4
l finding that such parneia='i- will not contnbute to delay." Once it is [ County CAapter, 423 U.S.12,14-15 (1975). The years of satisfactory prac-l deterimned th-1 a state is an interested State within the rule's meanmg, its tice under the rule as presently mterpreted sufficiently dispel the i terrorem right to take part in the proceedmg is e<'=hikhai That right is not depen- arguments that the apphcant raises against it.
dent on discrenan=ry factors. Third, the California comminion has far more than what Exxon For these re=< ant . I am of the view that the f ici ncing Boarfs decinan charactenzes as a " general" interest in the outcome of these proceedings.
to admit the Energy C="aiaiaa was correct. Under California law, before nuc! car power plants may be hcer sed fw future operanon there, that agency must determme (among other things)
Opieles of Mr.Salamen: . the adequacy of facilities for reprneesung or storing used naricar fuel rods.
i Cal Pub. Res. Code $25524.l(b). The proceed og at hand involves an ap-The C^=a iah's rules permit "a repr,<ent= rive of an interested State" plication to build just such a fuel repracetung and storage facility.
l that is not a party to partacipate in innsmr prac-edian 10 CFR $2.715(c). AIG,ough the facility would be in Tenneure, I do not think it can fairly be The I neenung Board invoked that rule in letting the California Energy said that the Cahfornia comminion has no direct and important interest in Resources Ca= aiaina appear in this case. Exxon protests, relying on it, given pending proposals to build addi'innat nuclear power plants in that
- =-ti= 1 of Ortian 274 of the Atorene Energy Act of 1954,42 U.S.C. state. To reach that conclusion does not compel us-as my colleague Dr.
82021(1). That <nh ee'b directs the Camminian to allow agencies of the Johnson appears to believe-to allow every state to participate in every pre-state where the nnete=r activities will be car ^r'ad to partacipate in a "non. ,
ceeding to twn<r a nuclear power plant. " Interest" in the context of in-party" status. Fe however, would read into the subsectian an addi. dividual power plants may indeed be more limited; but this case involves a
'vm=1 purpose, a Congre< nan =1 intent-unspoken-to deny that privilege ,
recycling and storage facility.
to any other state. And the company would read a umilar impli e stric- : Moreover, the California comminion's interest is not limited to the out-I tion into our Rule 2.715(c). come of the proceeding as my dinearing colleague suggests. What is at stake I do not agree. Congress appeMed suh -'ian 1 in 1959 to an Atonne is the agency's right to participate in the development of the record, to in.
Energy Act provisaon enneled " Cooperation With States."' Had it intended sure that the matters of particular concern to California are fully explored, the new subseenan to shackle in the manner Exxon suggests the Cn=ma- to ask hard questions about them and to probe the answers given. It is sion's ability to cooperate with the states, that was an odd way to go about precisely those privileges which Section 2.715(c) was designed to afford l'. The two cenrences from the Senate rammittee report on the bill addmg state governments without demandmg that they prejudge the situation to snhaecei- I which the company calls to our attennan do not support its take advantage of them.* In short, in our proceedmss a state agency is not thene- they merely paraphrase the new subsenian a It is an ele =en'a y 4 to be =a=lagi7ed to a private party but enjoys a more advantageous position c=n= of construcuon that we "cannns interpret federal statutes to negate preenely because it represents an aspect of the public interest.
their own stated purposes."' 59h=ee'iaa I was added to facshtare state par- Finally, even were the question a close one I would sus come down on ticiparmn in Ca==inian prac~diae<. not to curtail it. the side of restricting the right of state government, to participate in our hemd for fifteen years "intercered States" other than the one in which procecomgs. In the long run, pubhc confidence in our ability to regulate o aaelear facihty is proposed have regularly been allowed to partacipate in l nnete=r power responsibility in an eveah=aded. dispassionate snanner is ill-our prac~dia= To be sure, that practice has never been ch-'t-n -d direct- served by closed heartngs and a crabbed readsag o' regulations.
ly. But it is bornbook law that an agency's re=<a==hle. conucrene and con.
empor=neant interpretataons of its governang stat'uc and regulations are ORDER OF THE BOARD enneted to great deference. Norrhern indsana PanNs' Service Co. v. Portar In view of the agreement of Messrs. Sharfman anu hinnan on the disposition of the appeal, that portion of the I seenung Board's order of "t do aos mean se hapay that delayima incnes by an imercised siase shouu be seacrasat. see '
September 30,1977, which permits the Energy Carn'ai"i^a to participate in 10 CTR $2.714.
Cha= 1 was addas by P.L. M3. 88. 7) $ sat. 688 (1959). *la pertement part Rule 2.7tS(c) provides that a guty aCowed so participase anaJer its terms
- S. asp. No. 84 86sh Cong Isn Sess. (1939)- unay " introduce evdeam interrosaae wir= == and advise theen,anadaa wuhous [being re-M Y"'t $ssar W of 3snat servems v. IbMa4 4t3111405,419 20 (1973). qmredl to take a paam with respect so the imm "
l 878 !
$79 4
- g
l the existence of appmved fuel reprncannt '~h%, and that fh this prac-edte r as an ** interested State" pursuant to 10 CFR 12.715(c) is 4f- and/or storage of irradiated nucicar fuel may be expected for reprocessing fyweed. to be in operation when required by melear power plants in California (see 11 is so ORDFBFIT. p. 375, supra).*
Thus, the Energy Caami"i^a is interested in the final outcome of the pmceedsag and beyond thio does not identify any interest in the issues to FOR THE ATOMIC SAFETY AND be addressed in the Exxon beanags. The proposed Exxon facility LICENSING APPEAL BOARD preurmahly as merely one of a number of fuel reprocessang and/or storage facilities which may be estabh<hed throughout the country and there is no indie=riaa that this facility, planned to be built in Oak Ridge Tennessee would be the facility which might serve reactors in the State of Califo ma.
et E. Du Flo Unless the phrase " interested State" in $2.715(c) is to be accordeJ no Secretary to the Appeal Board more restnctive effect than simply to allow the particia=rian of any state, it is my opunon that the Energy C--iaton's interest in the Exxon pro.
ceeding is not sufficiently pertinent to the matters being adjudicated to g3 % allow it to part cipate under this section of the regulations. Further, the Boar &s de>< inn to permit the par- Energy Ca===iaiaa_ has made no showing that it would contribute to the uphold the i teenant yI. of the California Energy Resources C=nveion and W deida====hing process. 'Ihe ability to make such a contribution has been
..pa found by the Nnete=r Regulatory C^==ialan to be significant, at least in
.3 ^= (the Energy ca==$=> ara as an interested state pursuant hinung whether a private party should be allowed to participate in a to 10 CFR 52.715(c). I cannot agree with M Masmon in % math ,
heenung beanng at the discretion of a heeraint board. Portland General sages in which the acuvay being hcensed is to take place havel beenElectrac ad- Company (Pebble Spnngs Nacienr Plant, Units 1 and 2), CLI to ben.-ings rna nnely under Secuan 2.715(c). In =Adyaa ,ma l 4 NRC :N (December 23,1976), Applying this finding as a reasonable raunber of cases neighbonag sages have been anowed to gpate d l @d,tm,in gni this mstance I could not admit the Energy Commisdon o and the rule was used to perust the parnen =rinn of a discretionary basis.
ramway stge when thu state was identified sa ifie*Hy as the proposed in my conuderation of this matter, I have taken into account the Energy for radaoactive waste generated by the nuclear power plant gdam @"% & M Ng & M W h %tum of the State of for which a heense was being sought.: A @ cant p California in the search for safe and rehahle energy sources. However, since
- awmf thehoe w anowed to parucipate under Secuon 2.715(c) is that state was directly pernnent to the issues being adindw-='*d
, all of the information trought forth at the Exxon heannas will be available to the public, I am not persuaded that parucipation by the Energy Commis-W These issues are spelled out in the regulations and, sion is neenary in order to enable it to carry out its duties under the
. g ;,y,,a, anets reinted to the safety of the propaaed facility. California Code. Thus, I must raa^d- that the Energy Comm'uion's par-
,'"W the apphcant ise nk e ny and finanesefly qualified to design and ticipation an the beanns is not justified.
& proposed facihty, whether the proposed facility would be in-imient to the cammna defesne or to the he=hh and safety of the public, and whether the proposed facahty would have a significant unpact upon the e vironment (see 10 CFR 62.104). It is the resoluuon of these issues that NRC must e=adn in ==<ing a decasaon to hunne a Wy. _ i"hna,ed-
- The EnergyP '-=i"ia"'s interest in the Exxon prac *di*
.m krnan 25524.1 of the California Public Resources Code, is to ascertam rhis a an inscress .hich is, or conne, meu in comunon W .h participate in the wi: ira.
nos and resulanon at de= po.cr. AA auclear po.cr plaau are h==M under the assisip.
'See ta. 8. pp SM 89'" sion that Mhsa wall cust to recesve, reprocess and/or store used =nadear fuel. See for ca-
- Far=8ar Y8d8'Nadser W W FM Yankee Nasdcar Po.crampic, Stanon).
to CFR l St.20(cL L3P-73 4. 6 AEC 130 (1973).
IMO ,
Che as O NRC 518 (1977) LBP.77 59 a reprocesung piam in Roane County, (Oak Ridge)Tenneure, which would UNTTED STATES OF AMERICA have the capacity to store up to approximately 7,000 tons of irramared NUCLEAR REGIAATORY COMMISSION mu-rear fud and to process 2,100 tons of fud per year. Said Notice also stated, among other things, that any person, whose interest might be af-ATOMAC SAFETY AND LICENSING BOARD fected by March by the proceeding and who wished to partacipate as a party, must 14,1977, a petition under oath and affirmation for leave to in-Sb edut J. WoNo. Chairman tervene in accordance with the provisions of 10 CFR (2.714 Dr. Oscar H. Paris As hereinafter 6->d, three timdy petitions for icave to intervene Dr. Hasgh C. Paxton
! were fHed,' and, on April 28,1977, a special prencarmg conference was held 3" 8h* M*'8*' Of in Knoxville, Terneure, pursuant to 10 CFR $2.751a. The Board heard or
{
Docket No. 56564 1 argument upon the aforementioned petitions presented by the NRC Staff, EnON NUCLEAR COMPANY, INC- by counsel for Applicant, by counsel for Friends of the Earth, Inc. (FO and by Ms. Jeanmric Honicker, appeanng pro se 8 Counsel for the State of
!Na h Fuel Recovery and Tennessee also attended the conference.
Recycling Center!
September 30.1977 Hoeicker Petition Upon coauderation of various petitions to intervene Ms. Honicker, a resident of Nashville, Tenaruee, which is over one Board denies the petition of an intervenor, the Licensing whose interests it finds hundred are miles from the proposed facility, asserts that, if the reproces arguably within tL- anc of interest protected by the not stature s
and aho ha plant is constructed, it is likely that spent fuel rods wiH be shipped from the ccedmg; grants the petition of Friends of the Earth on and behalf otitsoccurred thirtynot south over the rails of the L and N railroad which are very near to her home and rental property, that, if an accident demo in that vicinity, it eight members residing within twenty-five miles of the proposed could site;causeand.her bodily harm, loss of life or loss of income. She also asserts grants the petitions of the State of Tennessee and of the California that, under Energyshe Constitution and as a Federal and state taxpayer she has a Resources Conservation and Development Cm-ai"imi pursuant 82.715(c). right toto 10 CFR intervene in the instant proceeding.
la ruling upon p titions to intervene, we are governed by $2.714 of our Rules of Practice which requires that a petition must set forth with par.
RIJLES OF PRACTICE: INTERVENTION BY A STATE
'Th Roard recesvat a one page so<aned leuer of imurvention datei March 12,1977 the asu:=se =ut same ptsce, may .
also mtervene (c). Ver. 1 us. ze.a M. imder Jenses of10 CFR Grahew. 52 715 Tenaeuse. Durma theInterested curse of the speoat conterence (Tr. 27A =e stased sham. af Ms Jensen so desared. she couw presen state prehe mons Yankee Nuclear Pos.er Corporation, LBP-73-8,6 AEC I 130 pearance(1973).~~ at the besmams of she hearms purmans io sccinon 2.7t us)of our auses of t P=uc* bu' <h*8 *e could a'd "*"'n the teuer as besag a p,u- to sasertene h<e cm-ORDER RULING ON PETITIONS i aary a h 2.7:4. is .as nos fded under oath aad arne-- is fa. sed io show staa&as FOR LEAVE TO INTERVENE ' d'd * '' ' "'*"" " ' ""# '"* '"
The naard ah necesed a P.ouce ofr Pare - daied May 23. i977. -wa~t by the On February 10, 1977, cahtorma Eactsy tesources e-auon and Dever .v--
atfra. e~~ -tich is discussed pubhshed in the FederalRegister (42 Fed. Reg. a=d 8439)
- 5'P' ha a 7,1977, s ember Notice of denaed the e-"~- Hearin8the FOE's pesman Nucicar for review ofRegulat th? Appeat on ApN'en'= for Cestrm-r- Pernut. The Nouce stated that a hearungAm. readered on Acisau 3. im. .wch eu @% m a would be hdd before an Atonuc Safety and 1 arranng Board to enaud e :nna ,sirmed by us. ta iss Order thee-- -stated, however, tha: the same for review erthe
- ofconstruct mtheon its o.a maanon under to Cn $2.miaba carma d so Octaber 19 appLcanon by the Exxon Nuclear Company, Inc., for a pernut tosiace e""s Order did nos stay theeffectiveness of the Appeat Board *W= we are pr~d=r u. nde apon the peuuous so intervene.
518 519 .
. . j
i
,,cu ,ity the ne'i'i~ -r s interest, how that imerest may be affected by the l Uans Bar proceeding. La Tennessee Vality Authonty (Watts Bar Nuclear remhs cf the poceedag, and the factual basis for the raanectians with regard to each aspect on which the pe'i'Lwn desires to intervene. We ha.e Plant. Units I and 2), LEP-77 36,5 NRC 1292,1297 (1977), the Board I hd that:
reviewed Ms. Honicker's pr n= and the Staff's and Appinne's answen ,
in oppminna thereto and have read the transcript of the special prehearing . . . While the Petinoner is an intelhgent person who takes a com-Waence, and eaaebh that the pe'i'ina-r has failed to meet these re- mendable anterest in civic matters, she is not a lawyer nor an"-u-a of quiremems. We so eaaa* hec-e in Portland Gesneral Dectrk h scientific or techmcal training. She does not have available to her some pany, sr. al. (Pebble Sprmgs Nucicar Plant Units I and 2), CLI.76-27,4 type of professmna! nuurance in canection with the evidemiary presentation. . . .
NRC 610,613, decided f*h*' 23.1976, the Ca=='"_'na stated that, to I have "2nding, a pe6'iaaar must satisfy two tests-one, some injury must be a!!cged : hat has occurred or wi!! probably result from the action involved, Seced. Ms. Honicker has not set forth her contentions with sui udgeenna an inscrest must be aneged that is " arguably within the zone of specificity to a!!ow evaluation, nor demonstrated their importanee and im.
- ,,,,g., potected by the statute. Ms. Panicker has failed ot sarkfy these mediacy. Her petition merely consists of quotations from an ERDA draft tm Her aHertia" of Pa" h3" physical and/or erannene injury we en- envirnam-ar=1 statement (paragraphs I and 2), of an argument that pro-tirely spemtative in nature, being pred<ated on the tenums *"urnpuons ceedings shald he suspended herein pending ERDA's filing of an en-that the spem fuct win be shapped by the named carner and that an accid-nt simnrnent Umpact statement on its pmposed sale ofland to the Applicant might occur in the area prmimate either to her reudence or to her remal (paragraph 3),* of questions (paragraph 4), of an excerpt from a resolution property. Cna**q""ady, we do not deem that Ms. Honicker's interests are adopted by the govermag board of the National Councd of Churches uA within the zone ofimerest protected by statute. Moreover, an light (paragraph 6), of an cacerpt from a newspaper arucle (paragraph 7), and of of Umzed T'ar, v. Richardsonr. 41g U.S.166 (1974), and Erothmgham, v. an a!!egation that any coss@cnefit analysis is inadequate if it does not ad.
dress certam problems (paragraph 8).
Mellon,262 U.S. 447 (1923), we m=ewA- that her a!!cgations of interest
,;naer theran<rirution or as a taxpayer do not confer <nading. Accordingly, Ms. Honicker's petition to intervene in this proceeding is While Ms. Hand er has no standing to intervene as a mar,er of righ , densed
- Howes er, pursuant to 52.715(a), Ms. Honicker may make , limited nevathekss we have enaudered whether in our discretion, purwant to appearance statement at the beginning of the forthcoming hearing.
Port!and GeneralDectruc Company, mpra, ai pages 614 4 17, we should P' ion of Staae of Tea""***
allow her interventaon. At page 617 of th.st opasuon, the Ca*==iui^a stated-
. . . As a general maater, however, we would expect practice to develop, not through precedent, but through attention to the concrete facts of Under date of March i1* 1977 the Stat II "'"'e petitioned to in-servene as an imerested particular situarians . Permassaon to intervene should prove more readily to 10 CFR 52.715(c), and both the Appbcant and Staff su avadable where pcv>rianers show significant ability to contribute on state s ""% as a parucipating state.
whosaeimt issues of law or fact whkh will not nrherwise be pmperty rM or gesen'ed, set forth these matters with <m'2hle specificity to y ,,u,,ina and de=^acrane their importance and ==*'y, .Th.M arew is .m mere m w e,~ am yme J Yi AS sary to consader them. ed fram proceed =s so take sw"-= on ca.w-=> muss .hach are .iahm an a-% pur.
maas so to CF R Part St. Ses hear Servare Campmer of Ae. Id. sea a al (Seabrook br=,. Umsts a and 2), A1.AB-293. 2 NRC 6eo 6975). See aho Concermaf ao oe Cact s f&A d After mue"'r g a!! the facts and cireurn<rance< in the in<nne case, we 'M a at v. AKC er_ at,410 F. Supp. 627 6977), ehesena the District Court hekt that is have detettIuned not to permit intervention, because, in the first M b* ,,,,,,,,,,,c,,,,y,c.,,,,,,,g,,,p,, ,, ,, ,,, ,,, g,g!,,d po,er ,,n,p,,y,g Hsker has neither showed in her perirm nor during the special prh- @ esim ter a comusechos permas despste the fact thas the General Services A.1=se. ,
,rrarion IAE C0"I*" @~ 2g-45) that she has a 9+'=a' int comribution to make .M o.ned she land tar she proposed facidy, haJ act compiaed with a court invenaf duty prepare an En.w=mma impace wwm,=
on a safety or envirna,=,ar=1 issue appropriate for cnesideration at the con- % ""8'
'l preheanag conferesse. based upon a bearsay nasemens by am namien.
strinetaan pernut stage. We concur with the Lacensing hq.s mey b ' 'a28P=aa S'5 Ho=*cher que""=^' *6ah*r Ramac Cauary has beca and is u it d n esisaa'ed its Order denying Ms. Honicier's petnen for leave to satervene sa the as a canary in .haca inere is so be ao further seleases of M Wiry (Tr. 38). At the farshmm.
as heaems. she Ap*". aad statt w.* presena c,is,."~ ia ,espaasc io chis eme=
520 521
W2 conf arm our ruling made durit the special preheanng conference (Tr. 6 Company (Grand Gulf Nncie'r Station, tJnits I and 2), A1.AB-130 G AEC
- 20) wherein we permitted Tennessee to participate as an interested state. f, 423, 426 (1973).
Accardingly, FOE's petition to intervene is granted.*
Friends ef the Earth, lac-, Petmos Nedee of Pardeir-asaa of the Caufarais Emergy L'a==ces Commervaties la its petition submitted on March 14, 1977 FOE auerts that its na- and Developanest e--a.a tional membership is compnsed of approvimately 20,000 indivianak in-etnams 28 members living in Knoxville, Tenneure, (approximarely 20 25 On May 23,1977, the California Energy Resources Conservation and miles from the propawd site) and 10 members living in Oak Ridge, Ten- Develaa--nr C=waiaina (Energy Ca==sataa) submined a Nouce of nence (approximately 8 10 miles from the proposed site). (Acting upon the Particinasian pursuant to 10 CFR 12.715(c).' The Energy Cn==iusan Board direction (Tr. 53), on May 10,1977, said peti rmer whmined af- asserts that, as established by the California legislature in 1974, it was ex-fidavits of two of its members tr<iding within 25 miirs of the proposed clusively authorued to certify proposed thermal power plants, transnussion reprnceu ng plant who deposed that they had authorued FOE to represent lines and related famlities in California and mn<r also cupile and adopt their interests in the in *ans hcensmg proceedmg.) FOE further asserts, <r=ndards to be met in designing and operat.cg such f=mbries . It asserts that amans other things, that the heahh and safety and the ensirnnment of its it is prohibited by California law from certifying a new nuclear power plant thirty-eight members may be adversciy affected by the radinanive gaseous in California until the United States has identified and approved, and there i and liquid effinents associated with the operation of the facility and/or by esi<rs a technology for the construct 2on and operation of nuclear fuel rod I the accxiental or wi!!ful releaw of high level radmanive liquids. solid wastes repraersung plants. Accordingly, it states that it has a vital interest in .he
! or plutanmm The NRC Staff supports the umi=iaa of FOE as a party- instant proceedmgs because, through its parucipation, it will secure i intervenor. Apphewn* opposes FOE's =dmiuina on the ground that the peti- v=h:3hte information relevant to its determmations required by California t;on fails to specify the contentions or the hace< therefor with the par- law.
l t ricularity required by 10 CFR 52.714. The Staff urges that the Energy ca==iuina be admitted pursuant to we cane *"d- that FOE has satisfied the Ca==iuina's too tests to 52.715(c). Appbcant opposes =d-suina because 42 U.S.C. $2021(1)(1970) estahlwh standing as prescribed in the Pebbdr Springs A*eid^a. supra. FOE evidences that only the state or crane
- in which an activity will be condanad has alleged a direct ennnemmn between that which is at issue in the inomne and thus having a direct or immerhare interest will be admitted to par-
- l, prae- dia _ i.e., whether a ennsrruction pernut sha!! be granted, and the ticipate. However, we construe that section of the Act to require that the p,.u ble adverse remtr< therefrocn. Further, FOE *s interests are within the NRC give prompt narice to the state or states in which an activity will be
.} zone of interests protected by both the Atonuc Energy Act of 1954, as enr.dnered of the fding of the hcense applie=rina. and to require that a i --aded. 42 U.S.C. 2011 cr. seg. ( 970), and the N=smnal Environmental re=<anable opportunity be afforded for state representatives to participate.
Policy Act of 1%9,42 U.S.C. 4321 et seg. (1970). Further,in paumg, we note that there is precendent for permittmg a state to Further, we rmd that FOE *s petition presents at least one contention (as participate pursuant to $2.715(c) despite the fact that it was not the site of clariraed during the special prehearing conference at transcript 92 95) with the proposed actisity-see Vermons Yankee Nuclear Power Corporation
.mrahie specificity and, in explanung the basis for it, has evidenced its im-portance and i==-dieyf However, it should be noted that in mAmirting this contemina as an issue in enneroversy,it is not our funnma to reach the mersts thereof at this stage of the proceedmg. M-n,npi Power and Lighs ,,,,,,,,,,, fog,,,,,,, , , , , , ,;,,_ ,,,,, ,
anoa. Awever, she NRC l.rks saatuaary authoney so prod $e fundaag. %rsaur Argadstory g c__ g ,, g,g, m ,, g,go,,,. C- - - =-(F-ams A u.amm e To Parucipaar* in & - - ~ Pr~w&rst CLI.M-23,4 NatC 494 (No.esaber 12, 39%r W has fadas so ====wh aa aha '*** ===de design basis tar the fasatsy The
,4,,,,in ha on a peak aconteranan of a.253, whach m ihe sassa .anse corretanas 'We da nas read and arru, the scarf s asservan than ske neard 14,1977, d.*adian- for fahms wah a Safe %* <a a MM -havnas a h8 .sr-3 nacicana lasensay of Vt!L FOE com. pesanoas foe lea e so anser ene ander 80 Ct R 62.754 as aos aprkh so the 10 CFR $2.7856:)
amada sham a pph. ==s shona2 haue anat a smase conscrwanee asseteranus of 04, shach is paneau by am anacressei saase. la the iauaan case, she proceedaags are sa a prehaucary stage &nd well aus be detaNd by the parta;apataca of the Emergy C " "
the ansam phas one maa4ard deuauca fraas the misma.
M D S 9
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l l '
l M.
(Vermont Yankee Nuc! car Power Station).6 AEC 130 (1973), wherem the State of Wanus was permuted to parucipate as an interested state.
Accordingly, we permit the California Energy Resources Cnnwvation and Development ram Wu% to partxipate pursuant to 10 CFR $2.715(c).
FOE upon receipt of the ine2ne Order, willinformally consult with the Apnina' and with the Staffin an effort to stipulate with regard to mMmm sible contentsons and the partaes will informa!!y initiate and promptly com-1 plete dascovery with* respect thereto. Within thirty days after th receipt of this Order, the partaes will notify the Board whether such a stiputarv= has been executed and/or whether there has been disagreement as to the ad-minihility of certain conte..tions.
l In accordance with 10 CFR $2.714a. this Order may be appealed to the Atomic Safety and Lacensang Appeal Board within five (5) days after service thereof. The appeal shall be asserted by the fding of a na. e of appeal and m, rvnpanying supporting brief. Any other party may file a briefin suppo .
of or in oppossuon to the appeal within five (5) days after the service of the
' appeal No other appeals from rulings on perusons and/or requests for hearing shall be allowed.
Dr. Paxton concurs but was not available to sign the inuant Order.
THE ATOMICSAFETY AND LICENSING BOARD ,
Dr. Oscar H. Paris Alember hm J. Wolfe. Esq., Chairman Dated at Bethesda, Maryland this 30th day of September 1977.
524
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