ML19263C231

Util Urges Denial of Petitions to Intervene Submitted by Bob Neiner Farms,League of Women Voters of Rockford,Dekalb Area Alliance for Responsible Energy & Sinnissippi Alliance for Environ.Certificate of Svc Encl

ML19263C231
Person / Time
Site:	Byron, Braidwood
Issue date:	01/29/1979
From:	Bielawski A, Mark Miller, Murphy P ISHAM, LINCOLN & BEALE
To:
References
NUDOCS 7902130073
Download: ML19263C231 (16)

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In the Matter of ) w >

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COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-454

) 50-455 (Byron Station, Units 1 and 2 and ) 50-456 Braidwood Station, Units 1.and 2) ) 50-457

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ANSWER OF COMMONWEALTH EDISON COMPANY TO THE PETITIONS TO INTERVENE OF BOB NEINER FARMS, INC., ET AL., LEAGUE OF WOMEN VOTERS, DAARS AND SAFE AND THE BAILLY ALLIANCE __

Commonwealth Edison Company ("Edis.on" or "Appli-cant"), pursuant to 10 CFR S2.714 (c) , hereby files an answer to various Petitions for Leave to Intervene in the proceed-ing before the Nuclear Regulatory Commission ("NRC" or

" Commission") on Edison's application for an operating license for Byron Station, Units 1 and 2, and Braidwood Station, Units 1 and 2. Petitions for Leave to Intervene in the Byron Station proceeding have been filed by the League of Women Voters of Rockford, Illinois (" League of Women Voters" or " League"), the DeKalb Area Alliance for Responsi-ble Energy ("DAARE") and the Sinnissippi Alliance for the Environment (" S AFE ) . Petitions for Leave to Intervene in the Braidwood Station proceeding have been filed by Bob Neiner Farms, Inc. ("Neiner Farms") , Bob E. Neiner, Eleanor M.

Neiner, Pat Neiner, Lorraine Creek, Leo Walsh, Alta Walsh and Bridget Little Rorem, Ralph Rorem, Jr., Phillip L.

7902136073

Zediker, Carole Zediker, Dianne Frothingham and the Bailly Alliance-Illinois ("Bailly Alliance") .1/ Some of the Peti-tions purportedly filed on behalf of identified organiza ions fail to establish the standing of said organizations to participate in this proceeding. All of the Petitions attempt to raise matters which are not proper subjects for adjudica-tion in the context of an operating license proceeding.

However, each of the Petitions appears to meet the minimum requirements of 10 CFR S2. 714 (a) (1) and (2) with respect to at least one identified Petitioner.

Argument The Petitions Fail to Establish That the League of Women Voters, DAARE, SAFE Or the Bailly Alliance Have Standing to Intervene.

10 CFR S2. 714 (a) (2) requires that a petition to intervene set forth with particularity the interest of the petitioner in the proceeding, how that interest may be af-fected by the results of the proceeding (with particular reference to the three factors listed in 10 CFR S2.714 (d))

and the specific aspect,or aspects of the proceeding as to which the petitioner wishes to intervene. The Commission has ruled that in determining whether a petitioner has an interest which may be affected within the meaning of Sec-tion 189 of the Atomic Energy Act and 10 CFR S2.714 (a) suf-ficient to confer standing to intervene in an NRC licensing

-1/ Those persons who have filed Petitions to Intervene will, at times, be collectively referred to as " Peti-tioners."

proceeding, the Atomic Safety and Licensing Boards assigned to rule on petitions should apply contemporaneous judicial concepts of standing. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976). In reliance on the decisions in Sierra Club

v. Morton, 405 U.S. 727 (1972) and Warth v. Seldin, 422 U.S.

490 (1975), the Commission determined that to have standing, a petitioner must satisfy a two pronged test: 1) he must adequately allege that he has or probably will auffer some injury from the action involved (the " injury in fact" test);

and 2) he must allege an interest which is arguably within the zone of interest sought to be protected under the Atomic Energy Act. Id., pp. 613-14.

Undor the " injury in fact" test, standing to intervene is conferred upon an organization only when it can show an injury to itself or to its members. Warth v. Seldin, supra; Nuclear Engineering Company, Inc._ (Sheffield, Illinois ,

Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 742 (1978). Standing must be denied the organization if it merely alleges, uithout more, a general interest in the problem. Allied-General Nuclear Services, et al. (Barn-well Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420 (1976). If standing is asserted on the ground that mem-bers of the organization will be adversely affected by the action, Applicant and the Licensing Board are entitled to a showing concerning the identity of those members so as to pernit an independent factual determination of the asserted injury. " Memorandum and order" issued by the Licensing Board in Consumers Power Company (Midland Plant, Units 1 and 2), dated August 11, 1978. Furthermore, there must be a showing that those members have authorized the organization to represent their interests, to satisfy the basic legal principle that one party may not represent another without express authority to do so. See: Long Island Lighting Com-ganz (Shoreham Nuclesr Power Station, Unit 1) , LBP-77-11, 5 NRC 481, 483 (1977) and cases cited therein. If an indi-vidual asserts that he is representing an organization, he must show that the organization has expressly authorized such representation because, under 10 CFR S2.714(a), he must allege sufficient facts to show that the Petitioner has standing. See also: Portland General Electric Co., supra.

The Petitions of the League of Women Voters, DAARE and SAFE, and the Bailly Alliance fail to establish that the organiza-tion or its memnirship have an adequate interest in the proceeding, fail to establish that any of the identified organizations have been authorized by its membership to represent the interest, if any, of its membership in this proceeding end fail to establish that the person signing the Petition is authorized to represent the organization. As is shown below, the Petitions of the League, DAARE, SAFE and Bailly Alliance must be denied to the extent that they purport to be Petitions on behalf of identified organiza-tions.

A. League of Women Voters.

The Petition to Intervene purportedly filed on be-half of the League of Women Voters and signed by Ms. Betty Johnson totally fails to demonstrate that the League has duly authorized Ms. Johnson to represent its interest or that of its members in this proceeding. As such, it is impossible for Applicant or the Licensing Board to determine whether: (1) the League desires to intervene in this pro-ceeding; and (2) if so, whether the League desires Ms. John-son to serve as its standard bearer in this matter. There-fore, the Petition of the League must be denied.2/

B. DAARE and SAFE.

The Petition purportedly filed on behalf of DAARE and SAFE totally fails to establish the standing of either of these organizations or of any individual member thereof.

AA2 hough the Petition is signed by Marilyn J. Shineflug, whose mailing address is given as "DAARE, P.O. Box 261, DeKalb, Ill. 60115," nowhere is it alleged that Ms. Shine-flug is a member of either DAARE or SAFE, nor has the resi-dence of Ms. Shineflug been identified. Thus, it is impos-sible to know whether any of the members, or indeed Ms. Shine-flug, will be adversely affected by the proposed action so as to gain standing to participate as parties to this pro-

-2/ If the Board is so inclined, it might care to evaluate the Petition of the League as the individual petition of Ms. Johnson. Based on the residence given for Ms. Johnson, it appears that she lives within sufficient proximity to the Byron Station to demonstrate her per-sonal interest in the proceeding.

ceeding. Moreover, Ms. Shineflug has not demonstrated that the members of either organization have requested or con-sented to her representation of their interests in this proceeding. For these reasons, the Petition must be denied.

C. Dailly Alliance.

The Bailly Alliance Petition is purportedly sub-mitted on behalf of that organization, as well as various named individuals. To the extent that the Petition is as-sorted to have been submitted on behalf of the Bailly Alli-ance or its members, again, there has been no showing that Ms. Rorem has been duly authorized to represent the inter-ests of the organization, or those of its members, in this proceeding. Therefore, one cannot know whether Ms. Rorem is attempting to assert rights of others without their knowl-edge or consent. As such, to the extent that this Petition requests that the organization be permitted to intervene, it must be denied. However, each of the individuals signing the Petition have stated that they reside within sufficient proximity to the Braidwood Station to establish their indi-vidual standing to intervene.

D. Bob Neiner Farms, Inc.

Applicant believes there has been an adequate showing of interest on behalf of the Bob Neiner Farms and its individual shareholders.

Aspect of the Proceeding In addition to establishing his right to partici-pate in this proceeding, a petitioner is required by 10 CFR S2.714(b) to identify the specific aspect or aspects of the subject matter as to which the petitioner seeks to interiene.

Because of the relatively recent effective date of the current version of 10 CFR S2.714, the precise meaning of the term " aspect" as used in that section has not been clearly established by previous decisions of the Commission or its adjudicatory boards. However, if the term is to have any meaning whatsoever, the purpose of requiring the identifica-tion of the aspect of the subject matter as to which peti-tiener wishes to intervene must be to allow the Licencing Board to evaluate if the aspect is a proper subject matter for adjudication in a particular hearing.3/ "If facts pertaining to the licensing of a particular nuclear power plant are at issue, an adjudicatory proceeding is the right forum. But if someone wants to advance generalizations regarding his particular views of what applicable policies ought to be, a role other than as a party to a trial-type 3/ The Appeal Board in Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974) identified this as one of the reasons for the one good contention rule. While an

" aspect" probably need not be as specifically drawn as a contention, and certainly need not specify the basis for any subsequently filed contentions (10 CFR S2.714 (a) (3)) ,

it certainly must be adequate to permit the Licensing Board to determine whether the hearing process at the operating license stage is being needlessly invoked.

See: Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station). ALAB-305, 3 NRC.8, 12 (1976).

hearing should be chosen." Duke Power Co. (William B.

McGuire Nuclear Station, Units 1 and 2) , ALAB-128, 6 AEC 399, 401 (1973). If the only aspect or aspects of the subject matter identified in a petition are not proper subject matters for adjudication in an operating license adjudicatory hearing, the petitioner will clearly be unable to later draft one good contention within the scope of the identified aspect.

It is Applicant's belief that the Petitions may have adequately identified one aspect which meets the re-quirements of 10 CFR S2.714 (a) (2) .S/ This by no means indicates that it will be possible to draft at least one good contention within the scope of the aspect at such time as Petitioners will be required to do so. F'Irthermore , it is Applicant's belief that the vast majorit' of the aspects identified in the Petitions are not proper subjects for adjudication in this proceeding, as we will briefly discuss below.

4/ Some of the Petitions contain what their authors have termed " contentions." These so-called contentions fall far short of the requirements for a valid contention, and Applicant will, therefore, treat these " contentions" as attempting to refae " aspects" as to which Petitioners wish to intervene.

Each of the Petitioners appear to raise an issue con-cerning the impacts of eventual decommissioning of the proposed plants. (See: Neiner Contention 15, League Contention 2 insofar as it relates to plant decommis-sioning, Bailly Contention 3c and DAARE/ SAFE Conten-tion 3c). No Petition raises this matter in the form of a valid contention under 10 CFR S2.714 (a) (3) .

A. Matters Resolved During Construction Permit Proceedings.

A significant number of the " aspects" raised 'oy Petitioners pertain to matters which were identified and resolved during the course of the construction permit pro-ceedings. It is well settled that "an operating license proceeding should not be utilized to rehash issues already ventilated and resolved at the construction permit stage."

Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC 203 (1974). This limita-tion with respect to the issues which must be examined during the course of an operating license proceeding is reasonable given the detailed review of environmental and safety-related impacts associated with the operation of a nuclear reactor which takes place during the construction permit proceedings. Only thcae matters which, because of supported assertions of changed circumstances or special public interest factors, might lead to different conclusions than those which resulted from construction permit review should properly be the subject of reexamination during the course of an operating license proceeding. See: Alabama Power Company, supra; Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1422 and fn. 5 (1977); and 10 CFR S51.21.

The following is a nonexclusive listing of some of the more glaring attempts on the part of Petitioners to raise matters which wers adequately resolved during the con-struction permit proceedings for the Byron and Braidwood Stations without any attempt whatever to demonstrate why they should be reexamined at this time.5/

(1) Neiner Farms Petition: Contentions 13, 14, 17, 18, 21, 22, 23, 24, 25, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 and 42.5/

(2) League of Women Voters Petition: Aspects 2, 4, 8, 9 and the aspect questioning the need for power on pp, 4-5 of the Petition.

(3) DAARE and SAFE Petition: Aspects 1, 2, 6, 7(a), (b), (d), (e) and (f) , and 8 and 9.

(4) Bailly Alliance Petition: Contentions 1, 2 and 5.

B. Attacks on Statutes and Regulations.

10 CFR S2.758 precludes a party from challenging the Commission's regulations in the cour.se of adjudicatory proceedings except under special circumstances not established 5/ It is Applicant's understanding that under 10 CFR S2.714(a) such a showing can appropriately be postponed until the contention stage of pleading.

6/ Contentions 29-41 in this Petition all pertain to De-partment of Interior comments submitted with respect to the draft environmental statement prepared in conjunc-tion with the NRC Staff review during the construction permit stage of this proceeding. The Staff's considera-tion of the issues raised by these comments is reflected at pp. 11-1 through 11-9 of the Braidwcad FES and in changas in the text of the FES itself. FES, p. 11-1.

Petitioner's attempt to resurre:t these issues is, on its face, contrary to the principle set forth above with respect to " rehashing" issues which were resolved during the course of the construction permit proceed-ings.

by any Petitioner in its Petition. Furthermore, general policy questions with respect to the appropriateness of the statutory framework or NRC regulatory process by which nuclear power plants are licensed are not proper subjects for adjudication in licensing actions before the Commission.

Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974). See also:

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978). Likewise, aspects which seek to raise issues with respect to the eventual permanent disposal of radioac-tive wastas are improper subjects for adjudication in a licensing proceeding. See: Northern States Power Co.

(Prairie Island Nuclear-Generating Plant, Units 1 and 2),

ALAB-455, 7 NRC 41, 51 (1978) and NRDC v. NRC, 582 F.2d 166 (2nd Cir., 1978). Finally, in view of the decision in Duke Power Company v. Carolina Environmental Study Group, Inc. et al., 98 S.Ct. 2620 (1978), which upheld the consti-tutionality of the Price Anderson Act, aspects attempting to question the adequacy of tha remedy afforded by that Statute are impermissible.

Applicant submits that a number of the aspects raised by Petitioners can only be interpreted as direct challenges to regulations in violation of 10 CFR S2.758 or as attempts to litigate policy issues which are not proper subjects for adjudication in individual licensing proceed-ings. Again, Applicant will point to sone of the more oovious examples of such improper " aspects."

(1) Neiner Farms Petition: Contentions 16 and 26.

(2) League of Women Voters Petition: Aspects 2 (as it relates to " removing spent fuel from the site" and low-level waste disposal) and 8.

(3) DAARE and SAFE Petition: Aspects 1, 3a, 3c, 5, 6, 7e, 7f and 9.

(4) Bailly Alliance Petition: Contentions 1(b),

1 (c) , 2, 3(a), 4, 5(d), 5 (e) and 5 (f) .

C. Unresolved Generic Safety Issues.

The Appeal Board in Gulf Stutes Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 773 (1977), cet forth the requirements which must be satis-fied in order to introduce generic safety issues into indi-vidual facility licensing proceedings. The party attempting to raise the matter must establish a " nexus" between the generic issue and the safety of the specific facility which is the subject of the licensing proceeding. Id. at 773. In stating the aspects as to which they desired to intervene, some of the Petitioners have apparently attempted to intro-

,, duce matters relating to generic safety issues by merely identifying generic issues without establishing tt.3 requisite nexus. Exampl<s of such " aspects" are set forth below.

(1) DAARE cnd SAFE Petition: Aspect 7.

(2) League of Women Voters Petition: Aspect 1.

D. Financial Considerations.

In Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155, 162 (1978), the Appeal Board considered the extent to which the NRC must concern itself with ar. applicant's financial matters:

In the Atomic Energy Act, Congress did not make this agency responsible for assessing whether a proposed nuclear plant would be the most financially advantageous way for a utility to satisfy its ctstomers' need for power. Such matters remained in the province of the utility and its supervising State regulatory commission.

Certain of the aspects raised by Petitioners appear to be an attempt to introduce issues into this pro-ceeding pertaining to financial concerns which should be deemed irrelevant to the Commission's consideration of the proposed license application. Examples of such aspects are listed below.

(1) Bob Neiner Farms Petition: Contention 42.

(2) DAARE and SAFE Petitio: : Aspect 2.

(3) Bailly Alliance Petition: Contention 5(b).

Conclusion Applicant fully recognizes that, at this stage of the proceeding, the Rules of Practice only require that Petitioners identify " aspects" as to which they wish to intervene in this proceeding. Petitioners were not required to draft specific, well-pleaded contentions and clearly have not done so. Of course, Applicant reserves the right to challenge the contentions, if any, filed in this proceeding for f ailing to meet the requirements of 10 CFR S2.714 (a) (3) ,

if and when such contentions are filed.

As Petitioners, League of Women Voters, SAFE, DAARE and the Bailly Alliance have failed to establish standing to intervene in this proceeding, their Petitions should be denied.

Respectfully submitted,

'1&de/d7/FAf Michael I.' Miller

/ , . , . ,

Paul M. Murphy c/ r . l -- 1 Bielawski Alan P.

Attorneys for Commonwealth Edison Company DATED: January 29, 1979 ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200

'hicago, Illinois 60603

312)786-7500 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

)

In the Matter of )

)

. COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-454

) 50-455 (Byron Station, Units 1 and 2 and ) 50-456 Braidwood Station, Units 1 and 2) ) 50-457

_)

CERTIFICATE OF SERVICE I, Alan P. Bielawski, one of the attorne,ys for Commonwealth Edison Company, certify that copies of " Answer of C7mmonwealth Edison Company to the Petitions to Intervene of Bob Neiner Farms, Inc., et al., League of Women Voters, DAARE and CAFE and the Bailly Alliance" have been served in the above-captioned matter on the following by United States mail, postage prepaid, this 29th day of January, 1979:

Myron Karman, Esq.

Office of the Executive Legal Director United States Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Marty Westerman Rt. 1, Box 279 St. Anne, Illinois 60964 C. Allen Bock, Esq.

P.O. Box 342 Urbana, Illinois 61801 Thomas J. Gordon, Esq.

Waaler, Evans & Gordon 2503 South Neil Champaign, Illinois 61820 Ms. Betty Johnson 1907 Stratford Lane Rockford, Illinois 61107 Ms. Marilyn J. Shineflug P.O. Box 261 DeKalb, Illinois 60115 Mr. Cordell Reed Commonwealth Edison company P.O. Box 767 Chicago, Illinois 60690

Chief Hearing Counsel Office of the Executive Legal L .cctor United States Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel Attention: Chief, Docketing and Service Section United States Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel Attention: Chief, Docketing and Service Section United States Nuclear Regulatorry Commission Washin; ton, D.C. 20555 Secretary Attention: Chief, Docketing and Service Section United States Nuclear Regulatory Commission Washington, D.C. 20555 DATED: January 29, 1979

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i ~ in J x Alan P. Bielawski