ML19270F557

Util'S Answer to Petition to Intervene Filed by M Westerman. Opposes Petition on Grounds of Failure to Establish Standing & Failure to Specify Proper Subj for Evidentiary Hearing. Notices of Appearance & Certificate of Svc Encl

ML19270F557
Person / Time
Site:	Byron, Braidwood
Issue date:	01/25/1979
From:	Bielawski A, Mark Miller, Murphy P ISHAM, LINCOLN & BEALE
To:
References
NUDOCS 7902150436
Download: ML19270F557 (14)

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In the Matter of )

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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 PETITION FOR LEAVE TO INTERVENE OF MARTY WESTERMAN Commonwealth Edison Company (" Edison" or " Appli-cant"), pursuant to 10 CFR S2.714(c), hereby files an answer in opposition to the Petition for Leave to Intervene of Mr. Marty Westerman (" Petitioner") in the proceeding of the Nuclear Regulatory Commission ("NRC" or " Commission") on Edison's application for operating licenses for Byron Station, Units 1 and 2 and Braidwood Station, Units 1 and 2. As is more fully set forth below, the Petition of Mr. Westerman fails to meet the minimum requirements of 10 CFR 52.714 (a) (2) and, thus, should be denied.

Standing 10 CFR S2.714 (a) (2) requires that a petition to intervene set forth with particula 7ity 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 O2WoQ%

which the petitioner wishes to intarvene. 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 52.714 (a) suf-ficient to confer standing to intervene in an NRC licensing proceeding, the Atomic Safety and Licensing Boards assigned to rule on petitions should apply contemporaneous judicial concepts of standing. Portland General Electric Co. (Pebble Sp11ngs 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 suffer 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. Applicant submits that the Petition of Mr. Westerman fails to satisfy the first prong of the above test in that he has not adequately alJ aged an injury in fact.

Although Mr. Westerman has expressed a generalized concern that nuclear power reactors present a serious risk to himself, his family and other individuals living near a nuclear power plant, he has not attempted to set forth any facts from which the Licensing Board could determine whether Mr. Westerman is among those persons who live within suffi-cient proximity to either the Byron and Braidwood facilities such that he could possibly be affected by operation of the plant.1/ No allegation of fact in Mr. Westerman's Petition would allow the Licensing Board to determine whether Mr. Wes-terman is merely stating a generalized grievance against the use of nuclear power reactors for the generation of electri-city, a grievance which would not in itself confer standing, or whether Mr. Westerman is concerned with a distinct and palpable injury to himself. See: Transnuclear, Inc.,

CLI-77-24, 6 NRC 525, 531 (1977). As Mr. Westerman has failed to allege sufficient facto to show that he has stand-ing to intervene in this proceeding, his Petition to inter-vene must be denied. /

To the extent that Mr. Westerman's Petition is intended as a petition on behalf of the Kankakee Area Audubon 1/ Mr. Westerman has given as his mailing address "Rt. 1, Box 279, St. Anne, Illinois." A map of Illinois indi-cates that the town of St. Anne, Illinois is located approximately 35 air miles from Braidwood, Illinois and in excess of 120 air miles from the town of Byron, Illinois. Such a rough estimate, however, gives no information on the distance between Mr. Westerman's residence and either of the two power plants.

2/ It is particularly important that an adequate showing of standing be made in a petition to intervene in an operating license proceeding because, unlike a construc-tion permit proceeding, a hearing is not mandatory.

The Appeal Board has instructed Licensing Boards to take the utmost care to satisfy themselves that poten-tial intervenors have a real stake in the proceeding.

Cincinnati Gas & Electric Co. (William H. Zimmer. Nuclear Power Station), ALAB-305, 3 NRC 8, 12 (1976). This duty cannot be discharged if petitioners fail to Ollege any facts from which a Licensing Board can make such a determination.

Society, it clearly fails to establish standing of the Audu-bon Society. The Petition is totally void of any allega-tions with respect to the nature of the Audubon Society or its interest as an organization in these proceedings.

Mr. Westerman does not allege that he is a member of the Audubon Society, and no other members of the Audubon Society are identified, nor are any facts alleged from which the Licensing Board could conclude that any member of the Audu-bon Society has standing to intervene in this proceeding.

As neither the interest of the Audubon Society nor any of its members has been established, any petition on behalf of the Audubon Society must be denied. Nuclear Engineering Company, Inc. (Sheffield, Illinois, Low-Level Radioactive Moreover, Waste Disposal Site), ALAB-473, 7 NRC 737, 743.

no allegation is made that the Audubon Society has been authorized to represent in this proceeding the interest, if any, of its members, nor is it alleged that Mr. Westerman has been authorized by the Audubon Society to file a peti-tion in its behalf in this proceeding. Id.; Allied-General Nuclear Services, et al. (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420, 423 (1975).

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 intervene.

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 identi-fication of the aspect of the subject matter as to which petitioner wishes to intervene must be to allow the Licens-ing Board to evaluate if the aspect is a proper subject matter for adjudication in a particular hearing.3/ oyf 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 generaliza-tions regarding his particular views of what applicable policies ought to be, a role other than as'a party to a trial-type hearing should be chosen." Duke Power Co. (Wil-liam 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 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).

adjudicatory hearing, the petitioner will clearly be unable to later draft one good contention within the scope of the identified aspect.

While it is not entire'y clear whether Mr. Wester-man has attempted to identify tht.e or four aspects in his Petition, it is clear that Mr. Westerman has not identified a subject matter suitable for adjudication in an operating license hearing. All of the aspects specified by Petitioner raise general policy questions unrelated to a specific faci-lity, We will comment on those portions of Mr. Westerman's Petition which might be interpreted as a specification of aspects in the order in which they appear.

In the third paragraph of the Petition, Petitioner seems to assert that because of the potential for accidents at nuclear power plants which could result in the release of radioactive gaseous material, it is inappropriate to license nuclear power plants, including Byron and Braidwood.d! As the United States Supreme Court has stated, the decision to try nuclear power as a source of electricity is a fundamen-tal policy question appropriately resolved in Congress and in the state legislatures. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978). Just as an attack on applicable statutory requirements is not subject to adju-4/ Alternatively, Petitioner may be attempting to show that the interest which he failed to establish is with-in the zone of interest of the Atomic Energy Act. AP-plicant does not dispute that protection of the public from accidental releases of radioactive materials is within the zone of interest of the Atomic Energy Act.

dication in a licensing proceeding before the Commission (Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974)), so too is the policy behind the statute an inappropriate subject for adjudication. To the extent that Petitioner seeks to inquire into specific deficiencies in the plant design that might lead to accidents, or the adequacy of the environmental re-view of the consequences of accidents, matters previously determined at the construction permit hearings should not be rehashed at an operating license hearing absent a showing of changed circumstances which would warrant their reinvestiga-tion. See: Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1422 (1977),

and 10 CFR 551.21. The Licensing Board at the Byron and Braidwood construction permit hearings evaluated the struc-tures, systems and components designed to prevent or miti-gate the consequences of accidents. (Commonwealth Edison Co. (Braidwood Station, Units 1 and 2), LBP-75-1, 8 AEC 1197, 1217 (1975)).

Petitioner's disagreement with the requirement that emergency core cooling systems be provided for the pro-tection of the core under loss-of-coolant action is an at-tack on 10 CFR 550.46 and 10 CFR Part 50, Appendix K. As such, it is not a proper subject matter for adjudication in this proceeding, 10 CFR 52.758.

Petitioner's disagreement with the Commission's policy to continue licensing of nuclear power plants prior to the time a long-term solution to the management of high-level wastes is similarly inappropriate for review in this proceeding. On July 5, 1977, the Commission denied a peti-tion for rulemaking which would, if granted, have required that no further operating licenses be granted until a safe and permanent method of disposing of high-level wastes had been established. 42 F.R. 34391. The Commission stated that its continued licensing of reactors constitutes an im-plicit finding of reasonable assurances that safe permanent disposal of high-level waste can be available when needed.

Id. at 34393. The Appeal Board has stated that the Commis-sion's action ". . . has to be taken as a policy declaration that, for the purposes of licensing actions, it both can and should be presumed that there will be spent fuel repositories available 'when needed' . . ., a declaration which must be respected by both Licensing and Appeal Boards.b! Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 51 (1978).

Petitioner's concern that the Byron and Braidwood Stations constitute two more sites from which plutonium can be hijacked by terrorists, as with his concern of the safe disposal of high-level wastes, is an effort to challenge the Commission's implicit policy determination to continue to license reactors notwithstanding any such potential. More-over, this aspect is an impermissible challenge to 10.CFR

-5/ The Commission's denial of the requested rulemaking was subsequently upheld in NRDC v. NRC, 582 F.2d 166 (2nd Cir., 1978).

Part 73, in that Petitioner seems to suggest the Commission's regulations for the physical protection of special nuclear materials from theft (10 CFR 573.l(a)) are inadequate to protect the public health and safety.

Conclusion As Petitioner, Marty Westerman, has failed to establish his standing to interve"e in this proceed'ng and has failed to specify an aspect of the proceeding which is the .

proper subject for an evidentiary hearing during an operating license proceeding, his Petition for Leave to Intervene should be denied.

DATED: January 25, 1979 Respectfully submitted, 4Hhlvid 9Y/(Ula MichaH1 I. Miller AJ #Md Paul M. &lrphy s0 -

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Alan P. Bielawski Attorneys for Commonwealth Edison Company ISHAM, LINCOLN & BEALE One First National Plaza s Suite 4200 Chicago, Illinois 60603 (312)786-7500 UNITED JTATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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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

)

NOTICE OF APPEARANCE Notice is hereby given that the undersigned attor-neys herewith enter their appearance on behalf of Applicant, Commonwealth Edison Company, P.O. Box 767, Chicago, Illinois 6uo90, in the above-captioned proceeding. In accordance with 10 CFR S2.713, the following information is provided:

N;me: Michael I. Miller Address: Isham, Lincoln & Beale One First National Plaza Suite 4200 Chicago, Illinois 60603 Telephone Number: (312)786-7500 Admissions: Supreme Court of Illinois United States Court of Appeals (7th Circuit and District of Columbia Circuit)

United States District Court for the Northern District of Illinois United States District Court for the District of Columbia Name: Paul M. Murphy Address: Isham, Lincoln & Beale One First National Plaza Suite 4200 Chicago, Illinois 60603

Telephone Number: (312)786-7500 Admissions: Supreme Court of Illinois Supreme Court of Wisconsin United States Court of Appeals (7th Circuit and 10th Circuit)

United States District Court for the Northern District of Illinois United States District Court for the Western District of Wisconsin Notice is further given, pursuant to 10 CFR S2.708 (e) ,

that service upon Applicant in this proceeding should be made on each of the following: Michael I. Miller, Esq., Isham, Lincoln & Beale, One First National Plaza, Suite 4200, Chicago, Illinois 60603; Paul M. Murphy, Esq., Isham, Lincoln & Beale, 60603; One First National Plaza, Suite 4200, Chicago, Illinois and Mr. Cordell Reed, Commonwealth Edison Company, P.O. Box 767, Chicago, Illinois 60690.

M1Mhad977iBd MichaeT I. Miller

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Paul M. Murphy /

ISHAM, LINCOLN & BEALE One First National ~ Plaza Suite 4200 Chicago, Illinois 60603 (312)786-7500 DATED: January 25, 1979

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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In the Matter of )

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COMMONWEALTH EDISON COMPANY ) Docket Ncs. 50-454

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

)

NOTICE OF APPEARANCE Notice is hereby given that the undersigned attor-ney herewith enters his appearance on behalf of Applicant, Commonwealth Edison Company, P.O. Box 767, Chicago, Illinois 60690, in the above-captioned proceeding. In accordance with 10 CFR S2.713, the following information is provided:

Name: Alan P. Bielawski Address: Isham, Lincoln & Beale One First National Plaza Suite 4200 Chicago, Illinois 60603 Telephone Number: (31?)?S6-7500 Admissions: Supreme Court of Illinois United States District Court for the Northern District of Illinois f( - > %

/ Alan P. Bielawski DATED: January 25, 1979 ISHAM, LINCOLN h BEALE One First National Plaza -

Suite 4200 Chicago, Illinois 60603 (312)786-7500

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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In the Matter of )

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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

)

CERTIFICATE OF SERVICE I, Alan P. Bielawski, one of the attorneys for Commonwealth Edison Company, certify that copies of " Notice of Appearance" and " Answer of Commonwealth Edison Company to the Petition for Leave to Intervene of Marty Westerman" have been served in the above-captioned matter on the fol-lowing by United States mail, postage prepaid, this 25th 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. Be,.c 34 2 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

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Chief Hearing Counsel Office of the Executive Legal Director 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 Regulatory Commission Washington, D.C. 20555 Secretary Attention: Chief, Docketing and Service Section United States Nuclear Regulatory Commission Washington, D.C. 20555 DATED: January 25, 1979

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Alan'P. Bielawski