ML20148L930

Answer of PG&E to Petition to Intervene in License Amend Proceedings of San Luis Obispo Mothers for Peace.* San Luis Obispo Mothers for Peace Failed to Satisfy Technical Standing Requirements of 10CFR2.714.W/Certificate of Svc

ML20148L930
Person / Time
Site:	Diablo Canyon
Issue date:	03/29/1988
From:	Norton B PACIFIC GAS & ELECTRIC CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#288-5972 OLA, NUDOCS 8804050041
Download: ML20148L930 (11)

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00CXETE0 USNEC 1 UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION *88 APR -1 P3 :55 BEFORE THE ATOMIC SAFETY AND LICENSING.-ROARD y.

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ShA W 4 In the Matter of )

) Docket No. 50-275 - O d A 5 PACIFIC GAS AND ELECTRIC COMPANY )

) Facility License DPR-80 6 ) (License Amendment)

(Diablo Canyon Nuclear Power Plant,)

7 Unit No. 1) )

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8 9 ANSWER OF PACIFIC GAS AND ELECTRIC COMPANY TO PETITION TO INTERVENE IN LICENSE AMENDMENT 10 PROCEEDINGS OF THE SAN LUIS OBISPO MOTHERS FOR PEACE 11 I. INTRODUCTION 12 13 Pacific Gas and Electric Company ( " PG & E" ) is the owner and operator of the Diablo Canyon Nuclear Power Plant Unit 1 located approximately 12 miles southwest of San Luis Obispo, California, Unit 1 is a 1,084 Mwe Westinghouse pressurized water reactor.1 On October 21, 1987, pursuant 19 I

20 Unit i received a full-power license on November 2, 2984. That license contained several conditions, one of 21 which required PG&E to conduct a Seismic Design Bases Reevaluation Program and file a Final Report with the NRC 22 three years following approval of the program by the NRC staff. PG&E submitted its program plan for the so-called 23 Long Term Seismic Program (LTSP) in January 1985 which was approved by the NRC staff on July 31, 1985. Accordingly, 24 the Final Report was required to be filed by July 31, 1988 (DPR-80, Section 2.c. (7) ) . Since the Unit 2 Operating 25 License did not contain a similar provision, this license amendment request pertains only to Unit 1.

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t 1 to 10 C.F.R. S 2.104, the NRC published in the Federal 2 Register a "Notice of Consideration of Amendment to Facility ,

3 License and Proposed No Signiricant Hazards Consideration

'4 and Opportunity for Hearing," 52 Fed. Reg. 39296, 39304.

5 The proposed amendment would revise License 6 Condition 2.c. (7) of the Unit 1 License, DPR-80, to allow 7 submittal of the Long-Term Seismic Program ("LTSP") final 8 report by July 31, 1989, rather than July 31, 1988.

9 Pursuant to that notice the Sierra Club - Santa 10 Lucia Chapter, San Luis Obispo Mothers for Peace ("SLOMFP")

2 11 and Mothers for Peace sent letters to the Commission 12 responding to the Federal Register notice. In its 13 Memorandum and Order of March 1, 1988, granting PG&E and the '

14 NRC staff the opportunity to file answers to the Petition of 15 SLOMFP, the Board noted that its examination of the Sierra 16 Club filing convinced it that the Club merely wished to 17 submit comments on the proposed amendment and did not >

18 request a hearing or petition to intervene. Accordingly, 19 20 21 2 The two documents from the San Luis Obispo Mothers for Peace and the Mothers for Peace (November 20, 1987, and i 22 November 21, 1987) appear to be from the same organization. .

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! 23 Both letters refer to the Mothers for Peace as "intervenors" in the licensing process since 1973 which ,

24 would appear to confirm this conclusion. In its Order of

, March 11, 1988, the Board also concluded that the two 25 letters were separate communications from the San Luis

Obispo Mothers for Peace.

I 26 4 '

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1 the Board only sought an answer with regard to the filings 2 of sLogyp.

3 II. DISCUSSION 4 A. Petitioner Must Meet the Requirements of 10 C.F.R. S 2.714 Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. S 2239 (a) , provides that:

In any proceeding under (the] Act, for 8 the granting, suspending, revoking, or amending of any license . . . the 9 Commission shall grant a hearing upon the request of any person whose interest 10 may be affected by the proceeding, and shall admit any such person as a party 11 to such proceeding.

12 Section 2.714 (a) (2) of the Commission's Rules of Practice 13 requires that a petition to intervene in a Commission 14 proceeding set forth with particularity:

15 o the inte-est of the petitioner in the proceeding; o how that interest may be affected by the 17 results of the proceeding; and 18 o the specific aspect or aspects of the subject matter of the proceeding as to 19 which petitioner wishes to intervene.

20 In order for intervention to be granted, the Atomic Safety 21 and Licensing Board designated to rule on petitions to i 22 intervene and/or requests for hearing must find that the 23 petition satisfies these standards.

24 In determining whether the requisite interest 25 prescribed by both Section 189a of the Atomic Energy Act and 26 s

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1 1 Section 2.714 of the Commission's Rules of Practice is 2 shown, contemporaneous judicial concepts of standing are 3 controlling. Portland General Electric Co. (Pebble Springs 4 Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 5 (1976). Thus, there must be a showing (1) that the action

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6 being challenged could cause "injury-in-fact" to the person 4

7 seeking to intervene and (2) that such injury is arguably 8 within the "zone of interests" protected by the Atomic 9 Energy Act $ and the National Environmental Policy Act.6 Id.

10 See also Warth v. Seldin, 422 U.S. 490 (1975); Sierra Club 11 v. Morton, 405 U.S. 727 (1972); Association of Data Process-12 ing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 13 (1970). Close proximity of a petitioner's residence, 14 standing alone, is sufficient to satisfy the interest 15 requirements. Virginia Electric and Power Company (North 16 Anna Nuclear Power Station, Units 1 and 2) , ALAB-522, 9 NRC 17 54, 56 (1979).

18 19 4"Abstract concerns" or a "mere academic interest" in 20 the matter which are not accompaniad by some real impact on a petitioner will not confer standing. Pebble Springs, 21 CLI-76-27, supra, 4 NRC at 613. Rather the asserted harm must have some particular effect on a petitioner, and a 22 petitioner must have some direct stake in the outcome of the proceeding. See Allied-General Nuclear Services, et al.

23 (Barnwell Fuel Receiving and Storage Station) , ALAB-328, 3 NRC 420, 422 (1976).

5 42 U.S.C. S 2011 et seq.

6 42 U.S.C. S 4321 et seq.

1 While an organization may gain standing to inter-2 vene based on injury to itself, Edlow International Company, 3 CLI-76-6, 3 NRC 563, 572-74 (1976), it must establish that 4 .it will be injured and that the injury is not a generalized 5 grievance shared in substantially equal measure by all or a 6 large class of citizens. Transnuclear, Inc., CLI-77-24, 7 6 NRC 525, 531 (1977). On the other hand, an organization 8 may establish standing through members of the organization 9 who have an interest which may be affected by the outcome of 10 the proceeding. Public Service Co. of Indiana, Inc. (marble 11 Hill Nuclear Generating Station, units 1 and 2), ALAB-322, 12 3 NRC 328, 330 (1976). When an organization claims that its 13 standing is based on the interests of its members, the 14 organization must identify one or more individual members 15 (by name and address) whose interests may be affected and 16 give some concrete indication that such members have au-17 thorized the organization to represent their interests in 18 the proceeding. Houston Lighting and Power Company (Allens 19 Creek Nuclear Generating Station, Unit 1) , ALAB-535, 9 NRC 20 377, 393-97 (1979); Virginia Electric and Power Company 21 (North Anna Nuclear Power Station, Units 1 and 2), ALAB 536, 22 9 NRC 402, 404 (1979); Duquesne Light Company, et al.

t 23 (Beaver Valley Power Station, Unit No. 1) , ALAB-109, 6 AEC 24 243, 244 at n.2 (1973). Specific representational au-

25 thorization of a member with personal standing is not 26 required where the sole or primary purpose of the 1

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1 petitioning organization is to oppose nuclear power in i

2 general or the particular facility at bar. Allens' Creek, 3 ALAB-535, supra, at 396.7  ;

4 In addition to demonstrating "interest," a peti-5 tioner must set forth "the specific aspect or aspects of the 6 subject matter of the proceeding as to which petitioner 7 wishes to intervene." 10 C.F.R. S 2. 714 (a) (2) .8 Petitioner 8 may satisfy this requirement by identifying general 9 potential effects of the licensing action or areas of 10 concern which are within the scope of matters that may be 11 considered in the proceeding. See Virginia Electric and 12 Power Company, (North Anna Power Station, Units 1 and 2) ,

13 ALAB-146, 6 AEC 631, 633-634 (1973). f I

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Further, under Section 2.713 of the Commission's Rules 17 of Practice, a "partnership, corporation or unincorporated association may be represented by a duly authorized member 18 or officer, or by an attorney-at-law." 10 C.F.R. S 2.713(b) '

(emphasis added) . Thus, where an organization is 19 represented by one of its members, the member must demonstrate authorization by that organization to represent 20 it. It is clear that groups may not represent persons other than their own members, and individuals may not assert the 21 interest of other persons. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1) , LBP-77-ll, 5 NRC 22 481, 438 (1977).

I 23 8 In this connection, an "aspect" is generally considered to embrace a broader concept than a "contention" 24 but at the same time have a narrower focus than a mere general reference to the NRC's organic statutes. Consumers 25 Power Co. (Midland Plants, Units 1 and 2) LBP-78-2'?; 8 NRC

, 275,278 (1978). ,

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v 1 B. Petition of San Luis Obispo Mothers for Peace 2 The San Luis Obispo Mothers for Peace ("SLOMFP")

3 has petitioned Tor leave to intervene in this license 4 amendment proceeding. SLOMFP's "petition" to intervene 5 consists of letters from Edie Clark (November 20, 1987) and 6 Sandra A. Silver (November 21, 1987_and February 7, 1988) 7 asserting that it has participated as an intervenor in the 8 Diablo Canyon licensing process since 1973 and that various 9 of its members live within 12 miles of the plant. However, 10 these documents, as such, do not demonstrate standing of the 11 organization through its members because they do not 12 indicate the local addresses of any individual members of 13 the organization nor do they establish that SLOMFP has 14 authorized these individuals to act on benalf of the 15 organization. Mere assertions that a petitioner's members 16 live near a facility are not sufficiently particularized to 17 predicate a finding of standing. See Public Service Company 18 of Oklahoma (Black Fox Station, Units 1 and 2) . ALAB-397, 5 19 NRC 1143, 1150 (1977). Moreover, the generalized assertions 20 in the two documents do not predicate any injury sufficient 21 to satisfy the criteria for establishing the interest and 22 standing of the organization that these individuals purport 23 to represent. Transnuclear, Inc., supra, at 531; consumers 24 Power, supra, at 277, 280. Presumably, though, SLOMFP can 25 identify at least one of its members by name and address who 26 jo  !

1 resides within the proximity of the plant and who has i 2 authorized the filing of a petition. Assuming that this 3 information is provided, SLOMFP could establish its claim of 4 derivative standing.

s 5 C. Specific Aspects of the Subject Matter of This Proceeding

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As noted above, in addition to meeting the stand-7 ,

ing and interest requirements of 10 C.F.R. S 2.714, SLOMFP 8 i must also "set forth with particularly...the specific aspect 9  ;

or aspects of the subject matter of the proceeding as to 10 which [it) wishes to intervene." 10 C.F.R. S 2.714 (a) (2). t i 11 Arguably, SLOMFP has set forth one "aspect" to  ;

support its petition. Briefly, SLOMFP appears to question

13 the need for a one-year extension asserting that PG&E does 3 1

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not need any additional time to prepare its prudency case 15 now pending before the California Public Utility Commission. -

i 16 l SLOMFP states that since ". . . PG&E has already prepared

, 17 and submitted its rate case . . . [it cannot) understand why 18  ;

) it is necessary to delay for one year the completion of the i

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(LTSP) . . . ." In its view, if the license condition is 20 not met as originally scheduled, the plant should be shut 3

21 j down because SLOMFP "relied on that condition" in some i 22 undemonstrated manner. These statements of "concern" 23 regarding the need for the extension would appear to satisfy '

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the "aspect" provisions of S 2.714 (a) (2) .  :

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1 III. CONC,LUSION 2 Based on the foregoing, PGsE believes that SLOMFP v 3 has failed to satisfy the technical standing-requirements of 4 10 C.F.R. 2.714_and, accordingly, the petition to intervene d I

5 should bei denied unless those defects are cured.

6 7 Respectfully submitted, I

? HOWARD V. GOLUB 4 RICHAF.D F. LOCKE 9 Pacific Gas and Electric Company P. O. Box 7442 10 San Francisco, CA 94120 (415) 781-4211 11 BRUCE NORTON ,

12 c/o Richard F. Locke P. O. Box 7442 4

13 San Francisco, CA 94120 (415) 972-6616 14

' Attorneys for 35 PACIFIC GAS AhD ELECTRIC COMPANY ,

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t By d wA i urv 18 Bruce Norton 19 DATED: March 29, 1988 ,

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i D00MEiED USNRC 1 UNITED STATES OF AMERICA 18 AR? -1 P3 55 2 NUCLEAR REGULATORY COMMISSION OFFICE OF Stchjw 3 00CKEisNG .'. SEi<vics BRANCH 4 )

In the Matter of ) Docket No. 50-275 00N 5 )

PACIFIC GAS AND ELECTRIC COMPANY) 6 ) (License Amendment)

(Diablo Canyon Nuclear Power )

7 plant Units 1) )

)

8 9 CERTIFICATE OF SERVICE 10 I hereby certify that on March 29, 1988, copies of 11 the following document in the above-captioned proceeding have been served on the following by deposit in the United 12 States mail: ANSWER OF PACIFIC GAS AND ELECTRIC COMPANY TO PETITION TO INTERVENE IN LICENSE AMENDMENT PROCEEDINGS OF 13 THE SAN LUIS OBISPO MOTHERS FOR PEACE.

14 Ivan W. Smith, Chairman Docketing and Service Branch Atomic Safety and Licensing Office of the Secretary 15 Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission 16 Commission Washington, D.C.- 20555 Washington, D.C. 20555 (1 original plus 3 copies)

Jerry Harbour Benjamin H. Vogler, Esq.

18 Atomic Safety and Licensing Office of Executive Legal Board Panel Director 19 U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission 20 Washington, D.C. 20555 Washington, D.C. 20555 ,

21 Gustave A. Linenberger, Jr. Regional Counsel Atomic Safety and Licensing U.S. Nuclear Regulatory 22 Board Panel Commission U.S. Nuclear Regulatory Region V 23 Commission 1450 Maria Lane, Suite 210 Washington, D.C. 20555 Walnut Creek, CA 94596 Atomic Safety and Licensing Samuel J. Chilk, Secretary 25 Board Panel General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory 26 Commission Commission Washington, D.C. 20555 1717 H Street, NW, MS 1035 Washington, D.C. 20555 l

4 1 Richard 1E. Blankenburg Edic Clark Co-publisher. .

Sandra A. Silver 2 -Wayne A. Soroyan. News Reporter San Luis Obispo Mothers South County Publishing Company for Peace 3 P. O.. Box 460 613 Stanford Arroyo Grande, CA 93420 San Luis Obispo, CA 93401 Managing Editor Nancy Culver 5 San Luis Obispo County San Luis Obispo Mothers Telegram-Tribune for Peace 6 1321 Johnson Avenue 192 Luneta Street San Luis Obispo, CA 93406 San Luis Obispo, CA 93401 0 '

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Kichafd F. L6cke 11 Pacific Gas and Electric Company 77 Beale Street, 27th Floor 12 San Francisco, CA 94106 13 Dated at San Francisco, California, this 29th day of March 1988.

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