ML19347C613
| ML19347C613 | |
| Person / Time | |
|---|---|
| Site: | Armed Forces Radiobiology Research Institute |
| Issue date: | 12/24/1980 |
| From: | Bachmann R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8012310460 | |
| Download: ML19347C613 (15) | |
Text
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K UNITED STATES OF AMERICA 4
NUCLEAR REGULATORY COMMISSION Q
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,q g;r 5h BEFORE-THE ATOMIC SAFETY AND LICENSING BOARD U
a In the Matter of
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ARMED FORCES RADI0 BIOLOGY RESEARCH Docket No. 50-170 INSTITUTE (Renewal of Facility License No. R-84)
(TRIGA-Type Research Reactor)
)
NRC STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE BY CITIZENS FOR NUCLEAR REACTOR SAFETY, INC.
I.
INTRODUCTION On November 25, 1980, the Nuclear Regulatory Commission (NRC) published in the Federal Register (45 Fed. Reg 78314) a notice of the proposed renewal of Facility License No. R-84, issued to the Armed Forces Radiobiology Research Institute (AFRRI or licensee) for operation of the TRIGA-type research reactor located on the National Naval Medical Center site in Bethesda, Maryland. The notice stated that the NRC is considering the licensee's timely application of October 3,1980 to renew the license to extend its expiration date to November 8, 2000.
The notice provided that, by December 26, 1980, any person whose interest-may be affected by the proposed license renewal could request a hearing by filing a written petition for leave to intervene. Petitions for leave to intervene were to be filed in accordance with 10 CFR s 2.714, setting forth:
(1) the nature of the petitioner's right under the Atomic Energy Act to be made a party to the proceeding; g
8012sloy,o (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; and (4) the specific aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.
The notice also provided that not later than 15 days prior to the first prehearing conference held in the proceeding, petitioners shall file supple-ments to their petitions to intervene which must include a list of the contentions which petitioners seek to have litigated and the bases for each contention set forth with reasonable specificity.
On December 9,1980, a timely Petition for Leave to Intemene (Petition) was filed by the Citizens For Nuclear Reactor Safety, Inc. (Petitioner or CNRS), a non-stock Maryland Corporation. The Petition was filed on behalf of Petitioner and on behalf of its members. The NRC Staff's response to the Petition is set forth below. This response is limited to the issues of whether Petitioner satisfies the requirements of 10 CFR 6 2.714(a)(2) with regard to interest and the identification of aspects of the proceeding as to which intervention is sought.M l
If The Staff does not, at this time, take any position with regard to the admissibility of allegations of the Petitioner as contentions in this proceeding. The Staff views Petitioner's statement of " contentions" set forth in the Petition as a statement of aspects as to which inter-vention is sought rather than a statement of contentions and bases.
Under 10 CFR 9 2.714(b), Petitioner has the opportunity to set forth specific contentions' and the bases for them in a supplement to its Petition to be filed at least 15 days prior to the first prehearing confe rence. The Staff's view on the admissibility of contentions will be set forth in response to such supplement to the Petition for Leave to Intervene filed pursuant to Section 2.714(b).
II.
DISCUSSION A.
Recuirements for Intervention The provisions of 10 CFR Q 2.714(a)(2) require that a petition to intervene set forth with particularity the interest of the petitioner in the proceeding, the manner in which that interest may be affected by the proceeding, and the aspect or aspects of the proceeding as to which intervention is sought.
With regard to interest and standing to intervene as-of-right, the Commission has established that contemporaneous judicial concepts of standing are to be applied in detemining whether a petitioner should be admitted as a party to an NRC proceeding.
Portland General Electric Company, et al.
(Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976); Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143,1144-45 (1977).
Consequently, the petitioner must show that tLe proposed action which is the subject of the proceeding cow result in " injury in fact" I to an interest which is
" arguably within the zone of interest" protected by the Atomic Energy Act or the National Environmental Policy Act.
Pebble Sprinas at 4 NRC 613-14.
An organization may establish standing to intervene as a result of potential injury to itself or as representative of one or more of its 2/
" Abstract concerns" or a " mere academic interest" in the matter which are not accon.panied by some real impact on the petitioner will not confer standing.
Transnuclear Inc., et al. (Ten Applications for Low-Enriched Uranium Exports to Euration Member Nations), CLI-77-24, 6 NRC 525, 531 (1977); Pebble Sprinos supra, at 4 NRC 613. Rather, the asserted ham must have some particular effect on the petitioner, Transnuclear supra, and the petitioner must have some direct stake in the outcome of the proceeding. See Allied-General Nuclear Services, et al. (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 422 (1976).
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members who have personal standing.
10 CFR 2.4(0); Warth v. Seldin, 422 U.S. 490, 511 (1975); Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 390 (1979).
It is clear that an organization can establish standing through members of the organization who have interests which may be affected by the licensing action under consideration.
Public Service Company of Indiana, Inc.
(Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976).
However, when an organization seeks to, base its claim of standing on the interests of its members, the organization must identify specific individual members with the requisite interest, describe how the interests of those members might be affected, and show that each of those members has authorized the organization to act on his or her behalf.
Allens Creek supra.
In this regard, an organization may satisfy the standing requirements of 10 CFR @ 2.714 by showing that one of its members resides "within the geographical zone that might be affected by an accidental release of fission products," Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 at n.6 (1973)3_/ or that a member's base of normal everyday activities is in the vicinity of the The Appeal Board has held that geographical proximity of a member's 3_/
residence to a facility is sufficient,' standing alone, to satisfy the interest requirements of 10 CFR 6 2.714 Virginia Electric and Power Corpany (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979).
7 facili ty.
Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 (1974).O Absent express authorization, groups may not represent other than their own members, and individuals may not assert the interest of other persons.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-77-11, 5NRC481,483(1977); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418,1421 (1977). There is, under the Atomic Energy Act and the Commission's regulations, no provision for private attorneys general. Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), ALAB-333, 3 NRC 804, 806 at n.6 (1976); Long Island Lighting Company, LBP-77-11, supra at 483.
A petition to intervene, in addition to setting forth the petitioner's interest and the potential effects of the proposed action on that interest, must identify the specific aspects of the proceeding on which intervention is sought. The only relevant aspects of the proceeding are those which fall within the scope of the proceeding.5_/ While there is little guidance as to the meaning of " aspect" as that tenn is used in 10 CFR s 2.714, it appears A petitioner who resides at an appreciable distance from a nuclear
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facility but who frequently engages in substantial business and related activities in the vicinity of the facility may establish the requisite interest and standing.
See, Portland General Electric Company, et al.
(Trojan Nuclear Plant), Order Concerning Requests for Hearing and Intervention Petitions (unpublished), July 27, 1978 and Portland General Electric Company, et al. (Trojan Nuclear Plant), ALAB-496, 8 NRC 308 (1978).
5/
See e.g., Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), Licensing Board "tiemorandum and Order Ruling on Petitions and Setting Special Prehearing Conferences" (unpublished), September 21, 1979.
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- to be broader than a contention but narrower than a general reference to the NRC's operating statutues.
Consumers Power Company (Midland Plant, Units 1 and 2), LBP-78-27, 8 NRC 275, 278 (1978).
In detemining whether a petitioner has met the " aspects" requirement of Section 2.714, it is not appropriate to apply the same standards as those applied to determine the admissibility of contentions.
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Thus, it appears that a petitioner may satisfy the " aspects" requirement by identifying generally potential effects of the licensing action which are of concern to the petitioner and which are within the scope
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of matters that may be considered in the proceeding.
Petitioner's right to intervene in the instant proceeding and the adequacy of its Petition should be examined in light of the foregoing princi-ples. For the reasons set forth below, the NRC Staff (Staff) believes Petitioner's request to intervene in its present fom fails to satisfy the pertinent " interest" requirements of 10 CFR S 2.714 and should be denied.
B.
Petitioner's Interest and Standina 1.
Intervention as of richt The petition states that CNRS is a non-stock Maryland corporation and most of its members are residents of Montgomery County, Maryland, where the reactor operated by the Licensee is located.b Petitioner's principal purpose is to elicit and disseminate information on the public health, safely and environmental impacts arising from the operation of nuclear reactor facilities in Montgomery County. I Petitioner seeks to establish 6/
Petition at 1.
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Id.
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its standing through the interests of the members it represents by alleging that several members live, own homes and maintain jobs in close proximity to the reactor (i.e., within one mile).8_/ Petitioner further alleges that routine and accidental radioactive emissions from the reactor would directly affect its members, thus causing injury-in-fact to such membersEI, and that the proposed licensing action will maintain and exacerbate this hazard.b An organization such as Petitioner may establish standing to intervene in one of two ways.
It may demonstrate a potential injury either upon its organizational interest or upon the individual interest of at least one member.
Consumers Power Company (Palisades Nuclear Plant), LBP-79-20, 10NRC108,113(1979).
Although Petitioner has asserted it is acting on its own behalf, it has not demonstrated any effect upon its organizational interest. Rather, CNRS throughout its petition appears to assert standing in a representative capacity on behalf of its members and the general public.E In order to establish such derivative standing as a representative of its members, it is not enough that the petition alleges that the organization has members who reside in the vicinity of the proposed site; rather, an organization should generally describe its membership and must identify at 8/
Petition at 3.
9/
Id.
,1_0/ Petition at 4.
H/ Petitioner asserts that its interest in the health and safety of the general public who live, work, raise children and own property in proximity to the licensee's reactor falls within the zone of interests sought to be protected by the Atomic Energy Act.
(Petition at 2).
As discussed above, an organization cannot represent persons other than its own members absent express authority to do so, nor may parties act as private attorneys general.
least one member who has a cognizable interest which might be affected by the result of the proceeding. Allens Creek, supra, 9 NRC at 390, 394 In addition, the member with such an interest must have authorized the organi-zation to represent his interests, where such authorization cannot be pre-sumed from the nature of the organization.
Allens Creek, supra, 9 NRC at 396.
When these principles are applied to the CNRS petition, it becomes apparent that CNRS has failed to comply with the requirements set out by the Appeal Board.
Petitioner has not identified any member (s) and therefore has not demonstrated standing on the basis of the standing of at least one of its members. On the basis of this deficiency, the Staff must oppose the granting of Petitioners' request to intervene. However, 10 CFR 2.714(a)(3) permits amendments to petitions for leave to intervene, without prior approval, up to 15 days prior to the holding of the first prehearing conference.
It is the Staff's position that if Petitioner amends its petition identifying at least one member with the requisite interest and providing a concrete indication that such member wishes to have that interest represented in the proceeding, the above noted deficiency may be cured.
2.
Discretionary Intervention Although a petitioner may lack standing to intervene as of right under judicial standing concepts, it may nevertheless be admitted as a party in the Licensing Board's discretion.
The Licensing Board is to be guided in the exercise of its discretion by a consideration of:
(1) the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record;
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.g.
(2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; (3) the possible effect on the petitioner's interest of any order which may be entered in the proceeding; (4) the availability of other means to protect the peti-tioner's interest; (5) the extent to which the petitioner's interest will be represented by existing parties; and (6) the extent to which petitioner's participation will inappropriately broaden or delay the proceeding.
Pebble Springs, supra, 4 NRC at 616.
The primary factor is the significance of the contribution that a petitioner might make.
Pebble Springs, supra. The need for a showing as to potential contribution is especially strong in an operating license proceeding where no petitioners have established standing as of right and where, absent such a showing, no hearing would be held. Watts Bar, supra, 5 NRC at 1422.
l In the instant case, no information is presented in the petition from CNRS that would allow a detennination as to petitioner's potential contribu-i tion to the development of a sound record or a decision on any of the other i
factors bearing on discretionary intervention.
Accordingly, it is the Staff's view that discretionary intervention cannot be granted based on the petition from CNRS as it is presently constituted.
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C.
Identification of Specific Aspects Petitioner has set forth 16 allegations, entitled " Contentions," which l
it states are the specific aspects of the subject matter as-to which it l
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E wishes to intervene.E/ While the Staff expresses no view at this time as to whether any of the " contentions" listed would be admissible in this proceeding as issues in controversy, the Staff believes they do set forth a reasonable identification of the specific aspects of the subject matter as to which intervention is sought. Accordingly, it is the Staff's position that Petitioner has satisfied the " aspects" requirement of 10 CFR 9 2.714.E III.
CONCLUSION 1
Petitioner has failed to demonstrate that it possesses standing in its own right and apparently seeks to establish standing through the standing of at least one of its members.
In this regard, it has failed to identify at least one member with standing and demonstrate that the member has authorized Petitioner to represent the member's interest.
Lacking this showing, Peti-tioner does not have standing as of right to intervene in this proceeding.
Further, Petitioner has failed to set forth any basis upon which the Licensing Board could admit it as a matter of discretion.
Consequently, it is the Staff's position that the petition in its present fom should be denied.
The petitioner may cure the above-noted defects in the petition without i
I g / Petition, pp. 4-9.
1}3/ In taking this position, the Staff expresses no view as to the validity i
or merits of Petitioner's allegations. The Staff's statement of position on contention admissibility will be submitted subsequent to Petitioner's filing of formal contentions pursuant to 10 CFR Q 2.714(b).
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requesting leave of the Licensing Board until 15 days before the first pre-i hearing conference.
l Respectfully submitted, i
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Richard G. Bachmann Counsel -for NRC Staff i
i Dated at Bethesda, Maryland this 24th day of December,1980 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Docket No. 50-170 ARMED FORCES RADI0 BIOLOGY RESEARCH
)
INSTITUTE ~
)
(Renewal of Facility
)
License No. R-84)
(TRIGA-Type Research Reactor)
)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 52,713(b),10 CFR Part 2, the following information is provided:
Name Stuart A. Treby Address U. S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, DC 20555 Telephone Number Area Code 301 - 492-8661 Admission Supreme Court of the United States Court of Appeals for the State of New York NRC Staff Name of Party U. S. Nuclear Regulatory Commission Washington, D. C.
20555 7
V 5tuart A. Treby Assistant Chief Heari g Counsel l
for NRC Staff Dated at Bethesda, Maryland
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this 24th day of December,1980
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEF0PE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket No. 50-170 ARMED FORCES RADI0 BIOLOGY RESEARCH
)
INSTITUTE
)
(Renewal of Facility License
)
No. R-84)
(TRIGA-Type Research Reactor)
)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter.
In accordance with 12.713(b),10 CFR F;rt 2, the following information is provided:
Name Richard G. Bachmann Address U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, DC 20555 Area Code 301 - 492-8505 Telephone Number Admission Supreme Court of the State of Cali fornia Name of Party NRC Staff U.S. Nuclear Regulatory Commission Washington, D. C.
20555
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Richaril G. Bachmann Counsel for NRC Staff Dated at Bethesda, Maryland this 24th day of December,1980
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- r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket No. 50-170 ARMED FORCES RADI0 BIOLOGY RESEARCH
)
INSTITUTE
)
(Renewal of Facility
)
License No. R-84)
(TRIGA-Type Research Reactor)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE BY CITIZENS FOR NUCLEAR REACTOR SAFETY, INC."; " NOTICE OF APPEARANCE" for Stuart A. Treby and " NOTICE OF APPEARANCE" for Richard G. Bachmann in the above-captioned proceeding have been served on the following by deposit in the Nuclear Regulatory Commission's internal mail system, this 24th day of December, 1980:
Louis J. Carter, Esq., Chairman Ms. Elizabeth B. Entwisle Administrative Judge Citizens for Nuclear Reactor Atomic Safety and Licensing Board Safety, Inc.
23 Wiltshire Road P.O. Box 5914 Philadelphia, PA 19151 Bethesda, MD 20014 Mr. Ernest E. Hill Stomic Safety and Licensing Board Administrative Judge Panel
- Lawrence Livermore Laboratory U.S. Nuclear Regulatory Commission University of California Washington, DC 20555 P.O. Box 808, L-123 Atomic Safety and Licensing Appeal Dr. David R. Schink Panel (5)*
Administrative Judge U.S. Nuclear Regulatory Commission l
Department of Oceanography Washington, DC 20555 Texas A&M University College Station, TX 77840 Docketing and Service Section (7)*
Office of the Secretary l
Mr. Robert L. Brittigan, Esq.
U.S. Nuclear Regulatory Commission General Counsel Washington, DC 20555 Defense Nuclear Agency Washington, DC 20305 f
Richard G. Bichmann ~
Counsel for NRC Staff