ML20062C234

Memorandum & Order Re Petitions for Intervention.Prehearing Conference Scheduled for 78121.Petitioners Should File Suppl Petitions Which Encompass Issues & Other Considerations Raised by Either Side by 781127

ML20062C234
Person / Time
Site:	South Texas
Issue date:	10/23/1978
From:	Bechhoefer C Atomic Safety and Licensing Board Panel
To:
References
NUDOCS 7811070272
Download: ML20062C234 (9)

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. Mt Y 6S UNITED STATES'OF AMERICA Q

9h 'o i" NUCLEAR REGULATORY COMMISSION $- gh .h 9 10 ,

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ',,

,, In the Matter of )

HOUSTON LIGHTING AND Docket Nos. STN 50-498 OL POWER COMPANY, ET AL. STN 50-499 OL (South Texas Project, )

Units 1 and 2) )

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(, MEMORANDUM AND ORDER REGARDING PETITIONS FOR INTERVENTION On August 2, 1978, the Nuclear Regulatory Commission published a Notice of Opportunity for Hearing in this operating license proceeding involving the South Texas

.(h Project, Units 1 and 2, two pressurized water reactors located approximately 15 miles southwest of Bay City, Texas. 43 Fed. Reg. 33968. Requests for a hearing or petitions for leave to intervene were required to be filed by September 1, 1978. I_d. at 33969.

.Now pending before this Licensing Board are three i

such petitions. The first, dated August 11, 1978, seeks i participation as an " interested State" by the State of

! Texas. The second, dated August 24, 1978, but not received i

by the Connission until September 11, was filed by David Marke, an individual who resides in Austin, Texas. The

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third, undated but received by the Commission on August 31, 1978, sought intervention on behalf of Citizens Concerned About Nuclear Power, Inc. (" Concerned Citizens"), an organ-

. ization based in San Antonio, Texas. .

The Applicants and NRC. Staff have' filed separate re-

] sponses to each of the petitions. Neither of them objects i

to participation of the State of Texas were a hearing to I

be convened. But they each point to a number of asserted defects in the other two petitions and' oppose the granting

() of either in its present form. The Staff goes on to note that, under the Commission's Rules of Practice, a petitioner

},_ has a right to cure defects in its petition until 15 days EE before the cpecial prehearing conference contemplated by j 10 CFR 52.751a. See 10 CFR $2.714(a)(3).

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We have carefully reviewed these petitions in light -

i of the criteria applicable to determining whether a hearing should be granted. We conclude that the petitions of

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Mr. Marke and the Concerned Citizens have serious defects, j of the types pointed to by the-Applicants and Staff in l their responses; but that before we take final action with respect to those petitions, the petitioners should be given a furth~er opportunity to cure those defects (and, indeed, to expand upon the petitions to the extent they deem

' warranted) .

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In particular, we note that, for a petition to be I granted, it must set forth with particularity "the interest 1

i 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 proceeding as to which

petitioner wishes to intervene." 10 CFR $ 2. 714(a) (2) .

In addition, by not later than 15 days prior to the special prehearing conference, the petitioner must file a " list of the contentions which [it] seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity." 10 CFR 52.714(b). A petitioner that fails to meet these requirements with respect to at

'I h__ least one contention is not to be permitted to participate d

as a party. Ibid, t

The most obvious defect of both of the contested I

petitions is their failure to include sufficient information l for us to determine whether the petitioners have standing as i J of right or, alternatively, whether they should be permitted to participato as a matter of discretion. In its Pebble Springs decision, the Commission ruled that judicial con-cepts of standing govern whether a petitioner has made

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an adequate showing of interest in a proceeding and that, to do so, the petitioner must demonstrate (1) " injury in I

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(( fact" and'(2) that the interest is " arguably within the L'

l zone of intereet(s]" protected by the relevant statutes -

here, the Atomic Energy Act and the National Environmental Policy Act. Portland Gene _ral Electric Co. (Pebble Spr.ings. .

Nuclear Plant; Vaita 1 and 2), CLI-76-27, 4 NRC 610, 613

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(1976). In this regard, the asserted interests of both

..s petitioners are so unparticularized that we have difficulty in determining their conformance to these criteria.

),. 4 Thus, both petitioners appear ' to assert certain " health" It is clear that a petitioner may base its stand-interests.

ing upon a showing that his or her~ residence, or that of its s

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<t members, is "within the geographical zone that might be i

affected by an accidental release of fission products."

• y Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 n. 6 (1973).

j But, insofar as we can ascertain, the longest distance

.  ! heretoior determined to be 'within the zone' which might be

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affected by a reactor incident is approximately 50 miles.

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Tennessee Vallev Authority (Watts Bar Nuclear Plant, Units j 1 and 2), ALAB-413, 5 NRC 1418 (1977); see also Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 192-94 (1973) (Licens-ing -Board determination to admit a petitioner residing 40

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5-(b miles from reactor found not to be " irrational"). On the other hand, distances of 125 miles and "several hundred" miles have been found to be outside the zone affected by such an accident. Public Service Company of Oklahoma

, (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143,

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f 1150 (1977) (125 miles); Duquesne Light Co. (Beaver Valley I

Power Station, Unit No.1), ALAB-109, 6 AEC 243, 244 n. 2 (1973) ("several hundred" miles).

Applying those criteria to this ca.se, it is evident

t. that the residence of Mr. Marke in' Austin, Texas (over 100 miles from the site) and the headquarters of Concerned

j. Citizens in San Antonio, Texas (over 150 miles from the site) are too remote to confer standing upon those petitioners.

] Because Concerned Citizens have not specifically identified

' i- any of its members, we presume they all live in San Antonio.

If any of them live or conduct' substantial activities in the

site vicinity, they should be identified (and their activities O explained) in a supplemental petition. Similarly, should Mr. Marke engage in significant activities near the site, j those activities should likewise be identified. .

I Concerned Citizens have further alluded to certain

" accidents in transportation" as a basis for their standing.

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O On their face, these assertions appear at best speculative.

Before we could give weight to them, extensive particulari-zation is required. In addition, the group has set forth  !

f certain economic interests. These are also not specified

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with enough particularity for us to evaluate them. But, li if the interests be those of ratepayers -- which on their

{ face. is what they appear to be --- they would be outside the zone of interests covered by the Atomic Energy Act or NEPA. Pebble Springs, CLI-76-27, supra, 4 NRC at 613-14; Watts Bar, supra, 5 NRC at 1421. .These matters might also

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be subject to considerable clarification by way of a supplemental petition.

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Even though a petitioner cannot establish standing l

as of right, it may nevertheless be permitted to participate 4

1 as a matter of discretion, where it can "make some contri-bution to the proceeding." Pebble Sprines, CLI-76-21, 4 NRC at 612. The Commission has established a number of

[ (]) discrete factors which bear upon the exercise of such discretion. Id. at 616. In the words of the Appeal Board, 1

Foremost among the factors which are to be

, taken into account in deciding whether to allow participation in the proceeding as a discretionary matter is whether such partic-ipation would likely produce "a valuable contribution:;r.~ to our decision-making process . "

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Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-363, 4 NRC 631, 633 (1976);- Black Fox, ALAB-397, supra; Watts Bar, ALAB-413, supra.

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i The'present petitions are inadequate 1for us to make

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y the above ' determination. ~ We have been given no information by which we can. assess the competency, the ability or the desire of the petitioners to make a sound contribution to the proceeding. In that connection, several contentions ,

need considerable explication - b. ,

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1. Both petitioners raise questions bearing 3

t iji upon over pressurization of the pressure vessel. The Commission has held that 4

pressure vessel matters may be considered only upon a showing of "special circumstances."

3 E.g., Consolidated Edison Co. of New York

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(Indian Point 2), CLI-72-29, 5 AEC 20 (1972);

a i i O C nsumers P wer C . (Mid and Plant, Units 1 j

and 2), ALAB-123, 6 AEC 331, 336 (1973) .

3 Although certain special circumstances may

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j -be alluded to by the petitioners, they are i

not specified in enough detail for us to consider or evaluate.

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pg ' , 2. Mr. Marke asserts that there are questions regarding the " geometric placement" of i

cooling towers and that certain provisions of the construction permit with regard thereto are >not}being followed. But the

} Applicants state that cooling for the

'l reactors is being . supplied by a reservoir and cooling pond, and reference to the l construction-permit environmental impact

{. statement (NUREG-75/019, March 1975) con-firms the Applicants' position (FES, $3.4).

NI Further explanation is clearly in order.

Finally, there is considerable question whether Mr. Marke's petition was timely filed. Although dated 1

t August 24, 1978, it apparently was postmarked September 5, 1978, and not received by us until September 11. Mr.

Marke has failed to address any of the factors relevant to

(_', a det.ermination whether a late-filed petition should be l accepted. See 10 CFR 52. 714 (a) (1) .

i To resolve these questions, as well as others which j may be presented by the outstanding petitions, the Board uas determined that a prehearing conference will be held

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} on December 12, 1978. Not later than 15 days prior to -

this conference - i.e. , .by November 27, 1978 - the '

petitioners may file supplemental petitions which

i. encompass, inter alia', the matters discussed above, as l well as other considerations raised'by the Applicants or ,,

j Staff. Such petitions may',' of course, include such conten- ,

tions as the petiitioners may deem to be warranted. The

time and place od the conference will be the subject of a j subsequent order.

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IT IS SO ORDERED.

, ~= THE ATOMIC SAFETY AND LICENSING BOARD

designated to rule on i petitions for leave to intervene.

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+ s [u ik Mhaj Charles Bechhoefer, ,Ghairman U

Dated at Bethesda, Maryland, i

this 23rd day of October,1978.

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