ML20127K117
| ML20127K117 | |
| Person / Time | |
|---|---|
| Site: | University of Lowell |
| Issue date: | 05/20/1985 |
| From: | Karman M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#285-091, CON-#285-91 SP, NUDOCS 8505220047 | |
| Download: ML20127K117 (17) | |
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May 20, 1985 UNITED STATES OF AMERICA '
~ NUCLEAR REGULATORY COMMISSION' BEFORE THE ATOMIC SAFETY AND LICENSING BOARD DOCKETED USNRC In:the Matter of )
) Docket No.50-223S# '85 MY 21 i0:22
_ UNIVERSITY OF LOWELL-(TrainingandResearchReactor) R
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0h f{G sE BRANCH
-NRC STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE OF JOHN F. DOHERTY I. -INTRODUCTION On March _29, 1985, the Nuclear Regulatory Commission published in the Fede'ral Register-(50' Fed. Reg. 12668) a notice of consideration of the application of the University of Lowell for a renewal of its facility
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' license. A timely petition-for leave-to intervene was filed by John F.
Doherty.II t II. REQUIREMENTS FOR INTERVENTION As. discussed below, the basic requirements!for' intervention in a
. Nuclear Regulato*y Commission proceeding are that: (1) the-petitioner
- must have stariding to intervene (or, as referred to in i 2.714(a) of the
' Commission's rules, an "interast" in the proceeding), (2) the petitioner must identify the aspects of the subject matter of the proceeding as to 4
-which it wishes.to intervene, and (3) at least fifteen days prior to the 1/' Petition For Leave To Intervene-Of John F. Doherty,-dated April 25, 1985(" Petition").
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,. 2-first prehearing conference to be held in'the proceeding the petitioner mustLsubmit 'at least one acceptable contention for litigation.
- A. . Interest and Standing
- Section 2.714(a)(2)'of the Commission's Rules of Practice requires that a. petitioner.must " set forth with particularity the interest of the pet.itioner in the proceeding, how that interest may be affected by'the results 'of the' proceeding, including the reasons why petitioner *should be
-. permitted to. intervene." Judicial tests of standing.are to be applied in NRC1 cases and, accordingly, for a petitioner-to satisfy this " interest"~
forL" standing test" it must be.found that: (1).an injury to the peti-
- tioner has occurred or probably will occur from the proposed licensing
-action; 2/ and (2) the petitioner; has an interest arguably within the zone' of interest kto be ' protected or regulated by the statutes governing this Comission. S/
2/ : -This " injury of fact" test requires that there is a distinct harm
-which will or. cur to the petitioner and that ". . . a cognizable
. interest.of the petitioner might be adversely affected if the proceeding has.one' outcome rather than another. Public Service Co. of Indiana-(Marble Pill Generating Station, Units 1 and 2),
LCLI-80-10, 11 NRC 428, 429 (1980).
-3/ The ~" zone o'f ~ interest" test for intervention .in NRC health and safety proceedings has been held to be identified as "an interest
'in.the avoidance of a threat to health and safety as a result of radiological releases from the nuclear facility (either in '1ormal operation or as a result of an cccident)." Virginia Ele '. tic and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-342, 4:NRC 98, 105 (1976);
x 4/. Portland General Electric Company (Pebble Springs, Units 1 and 2),
'CLI-76-27, 4 NRC 610,-.(1976); Public Service Company of Oklahoma
-(BlackLFox, Units 1 and 2), ALAB-397, 5 NRC 1143, 1144 (1977).
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The injury in question may not be a generalized grievance but must l be a specific injury which the individual petitioner,-in contrast to all merrbers of the public, would suffer from the proposed act. El The interest to be protected must be one within the cognizance of the NRC to protect and-not one outside its mandate. 5!
B.: The Specific Aspect Requirement' In addition to demonstrating interest or standing, 6 2.714(a)(2) also provides that a petitioner must set forth the specific aspect or aspectsLof the subject matter of the proceeding under review as to which its seeks to-intervene. This pleading requirement has only been speci-fically addressed by NRC tribunals on a few occasions. It is satisfied if a petitioner identifies its general position on a subject matter as to which it seeks to intervene. 7/ Further, the subject matter so iden-
-5/ ' Transnuclear Inc., CLI-77-?4, 6 NRC 525, 531 (1977); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438, 439 (1980); Westinghouse Electric Corp. (Export to South Korea), CLI-80-30, 12 NRC 253, 258 (1980).
-6/' Pebble Springs, supra; Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143, 1147 (1977).
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See, e.g., Metropolitan Edison Co. (Three Mile Island Unit 1),
Unpublished Memorandum and Order Ruling on Petitions and Setting Special Prehearing Conference of September 21, 1979, at 6. See
'also, Consumers Power Company (Midland Plant, Units 1 and 2),
N 78-27, 8 NRC 275, 278~(1978); cf. Philadelphia Electric Co.
(Limerick Station, Units 1 and 2), Unpublished Memorandum and Order Setting Schedule for Submission of Contentions and Other Preliminary information of October 14,1981, at pp.13-14.
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,. tified must'be within the scope of a licensing proceeding or it cannot be raised. 8_/
C. - The Requirement that the Petitioner State of Least One Relevant Contention-Although the aspects of the subject matter of the proceeding under which a petitioner seeks to intervene may initially be identified in a rather general manner, the petitioner later must be much more specific with respect to listing contentions for litigation. Section 2.714(b) of the -rules requires that not later than fifteen days prior to the holding of the special prehearing conference a petitioner must file a supplement to its petition to intervene which includes'a list of the contentions that it seeks to have litigated and the basis for each contention set forth with reasonable specificity. This section also provides that if the petitioner fails to satisfy this requirement with respect to at least one contention, 9/ it will not be permitted to participate as a party. EI
-8/ See, e.g., the following cases where matters.outside the jurisdiction of the Commission or Licensing Board were ruled inappropriate for consideration: Babcock & Wilcox (Application for Consideration of Facility Export License), CLI-77-18, 5 NRC 1332, 1348 (1977); Allied Nuclear Services (Barnwell Fuel Receiving &
Storage Area), ALAB-328, 3 NRC 420, 422-423 (1976); Long Island Lighting Co. (Jamesport Station), ALAB-292, 2 NRC 631 (1975).
-9/ Mississippi Power & Light Co. (Grand Gulf Station, Units 4 and 2),
ALAB-130, 6 AEC 423, 424 (1973); Louisiana Power & Light Co.
(WaterfordStation, Unit 3),ALAB-125,6AEC371,372(1973).
10/ For a brief discussion of the background of this rule, see Midland,
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supra, 8 NRC at 277-278.
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III. THE PETITION A. Interest and Standing As Of Right In his petition, Mr. Doherty stated that he "has a health and safety interest'in the reactor licensing because he resides within approximately 25 miles of the reactor's site." Petition at 1. He also asserts, without providing any basis for his assertion, that accidents due to misoperation will adversely affect his interest. Ibid. As noted above, in order for a petitioner to establish standing to intervene as of right in a licensing proceeding, it must appear-from.the petition both (1) that the petitioner will or might be injured in fact by one or more of the possible outcomes oftheproceeding;and(2)thattheassertedinterestofthepetitioner
.in achieving a particular result is at least arguably within the " zone of interests" protected or regulated by the statute or statutes which are being enforced. Pebble Springs, supra, CLI-76-27, 4 NRC at 613-14. The Staff concedes that Petitioner has asserted an interest, a concern of possible injury to his health or safety from radiation emissions from the research reactor, which is within the " zone of interest" of the Atomic Energy Act. However, the Staff submits that Petitioner has not sufficiently alleged an injury in fact that has occurred or will probably result from the licensee's action.
The-Staff' acknowledges that there is a large body of Commission case law which recognizes that geographic proximity, standing alone, is sufficient to establish the requisite potential injury in fact. See, ea, Gulf States Utilities Company (River Bend Station, Units I and 2),
ALAB-183,7AEC222,223-24(1974), and cases there cited. This body of casa law was developed principally with regard to power reactors and has
established a geographical zone of as much as fifty miles surrounding a power reactor as sufficient to establish standing to intervene in NRC hearings. 3 The reactor in the subject application is a pool type non power research reactor of one megawatt thermal. There have been very few hearings conducted related to the licensing of research reactors. The
' Staff can recall only three such hearings, Trustees of Columbia University (Docket 50-208); Armed Forces Radiology-Research Institute (Docket 50-170) and the Regents of the University of California - UCLA (Docket 50-142).
In all of the above proceedings, intervention was allowed where the peti-
.tioners either lived or worked within very close proximity to the facility.
In Virginia Electric and Power Co. (North Anna Power Station, Units.1 and 2), ALAB-522, 9 NRC 54 (1979), the Appeal Board explicitly rejected the argument that the cases establishing geographic proximity should be restricted to construction permit and operating license pro-
, ceedings. Id at 56. The North Anna proceeding involved an application for a license amendment to expand a spent fuel pool. One of the peti-tioners in that proceeding, CEF, had four members who resided "on the shore of Lake Anna in very close proximity to the North Anna facility."
I_d . - a t . 55. The Licensing Board denied CEF leave to intervene for failure
-to particularize a causal relationship between injury to an interest of
-11/ See, e.g_., Northern States Power Company (Prairie Island Plant, U5Tts 1 and 2), ALAB-107, 6 AEC 188, 193 (1973) (40 miles);
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413,-5 NRC 1418, 1421, n.4 (1977) (50 miles); Detroit Edison Company (Enrico Fermi Plant, Unit 2), LBP-79-1, 9 NRC 73, 78(1979).
o petitioner and possible results of the proceeding. The Appeal Board rejected this requirement imposed by the Licensing Board stating:
[W]e have never required a petitioner in such gecgraphical-proximity to the facility in question to establ4h, as a precondition to intervention, that his concerns are well-founded in fact . . . .
Rather, close proximity has always been deemed to be enough, standing alone, to establish the requisite interest.
Id at 56. However, while the Appeal Board reached the same result with the second petitioner, Potomac, the Appeal Board noted that Potomac's claim of interest was not as strong, the closest of its identified members residing.approximately 35 miles from the facility, while another
. identified member residing 45 miles from the facility that member claimed some recreational activity in the general vicinity of the plant. The Appeal Board indicated it might call upon the Licensing Board to take another look at Potomac's claim of interest, free of the legal error that all petitioners for intervention were obligated "to particularize a causal relationship between injury to his interest and the licensing : tion being sought. I_d. at 57. However, in view of circumstances relating to timing unique to the North Anna proceeding, the Appeal Board determined just to' grant Potomac leave to intervene. Ibid.
In Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Facility), ALAB-682, 16 NRC 150 (1982), a materials license renewal proceeding under 10 C.F.R. Part 30, the Appeal Board Sid that peti-tiener's geographical proximity (one of petitioner's members resided within 3 miles) to a large source of radioactive material established standing. 16 NRC at 154. The Appeal Board stated that since the concept of geographical proximity is not limited to cases involving
4 Part 50 licenses, the Licensina Board was wrong to require that the petitioner, to demonstrate standing, show in addition to geographical proximity a causal relationship between injury and the licensing action being sought.- Ibid.
From the above discussion, it is clear that where a petitioner establishes that he resides or works in close proximity to the facility in question, that fact standing alone, has been deemed to be enough to establish the requisite interest for intervention. That principle is applicable whether it is a construction permit or operating license proceeding, a license amendment proceeding or a materials license proceeding. However, the Staff submits that the distances which consti-tutes "close proximity" properly should differ according to the facility.
In AFFRI one member of the petitioner resided within 3 miles and the
- Appeal Board took official notice that another member resided as close as three-tenths of a mile from the facility. AFRRI, supra, 16 NRC at
. 154, n.3. In North Anna, petitioner was characterized by the Appeal Board as having its members living "little more than a stone's throw from the facility." -North Anna, supra, 9 NRC at 56.
The Staff would agree that if Petitioner resided in very close proximity of the facility, that would be enough to establish standing.
But that is not the circumstances stated in the Petition. Rather, Peti-
- tiener states he resides 25 miles from the research reactor in question.
As discussed below, the Staff's environmental assessment for research reactors of the type located *t the University of Lowell indicates Peti-tioner will not receive any effects from operation of the facility. A research. reactor of the type at University of Lowell is very different
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. fron' a power. reactor and has a'different magnitude of potential effects 1
on the surrounding area. Prior Comission decisions have held that l
- distances greater than 50 miles from a power reactor do not justify j
. invoking.the Commission!s geographic proximity rule. E l Similarly, the-Staff submits'that a distance as great as 25 miles from a research reactor present in the instant Petition does not justify invoking the
. Commission's geographic proximity rule without some basis for believing Petitioner may incur some impact at that-distance. The Petition contains no discussion of this matter and accordingly, the Board should find it
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Petitioner's allegations regarding potential accidental introduc-tion of radioactive substances into the atmosphere are without merit.
The training and research reactor at- the University of Lowell is a pool
-type non power research reactor of one megawatt thermal, fueled by ':igh enriched uranium protected by a pressure containment vessel held under slight vacuum. The design ofL the reac. tor and the limitations imposed
'in the license precludes the type of catastrophic accident which could give rise to any significant offsite release of radiation so as to affect
'the petitioner whose residence is some 25 miles from the site. -(See,
~ Staff Generic Statement on Environmental Considerations Regarding the Licensing of Researc? Jeactor and Critical Facilities, attached hereto.)
Petitioner asserts a further ground to establish his interest in the proceeding that he is a taxpayer whose interest may be advers?ly affected
-12/ Cleveland ' Electric Illuminating Co. (Perry Nuclear Power Plant,
. Lunits 1 and 2), LBP-81-24, 14 NRC'175, 178-179 (1981).
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. by the renewal application. Petition at 1. It is well established Com-
.T,i:sfon case law that being a taxpayer does not confer standing as of
.right in an NRC' proceeding. E l Finally, Petitioner claims that he occasionally travels to Maine and thus passes closer _to the research reactor than his residence. Petition at 2. This claim is so vague that it does not provide sufficient justification to meet the standing requirement. El Petitioner does not particularize how close he gets to the research reactor nor how long he remains in the vicinity of the site. The claim that Petitioner may drive near the vicinity of the site is no more than a generalized grievance shared by any other member of the public who may drive through that area of Massachusetts. See note 5 supra.
B. Discretionary Intervention Although a petitioner may lack standing to intervene as of right under judicial standing concepts, he nevertheless could be admitted as ,
a party in the Licensing Board's discretion. The Licensing Board is to be guided in this exercise of discretion by a consideration of:
- 1. the exter.t to which the petitioner's participation reasonably may be expected to assist in developing a sound record;
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13/ Pebble Springs, su ra, 4 NRC 610, 614 (1976); Watts Bar, su ra, 5 NRC 1418, 1421 7), affirming LPP-77-36, 5 NRC 1292, (1977).
-14/ See Washington Public Power Supply System (WPPSS Nuclear Project No.2),LBP-79-7,9NRC330,336(1979).
- 2. the nature and extent of the petitioner's property, financial or other interest;
- 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 petitioner'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, CLI-76-27, 4 NRC at 616 91976). The primary factor here is the significance of the contribution that a petitioner might make. Pebble Springs, supra.
Petitioner does not address the question of discretionary interven-tion. Thus, there is no information before the Board as to the nature and degree of contribution the Petitioner might make. As to the matter of potential for delay, since petitioner is the only person seeking to
. intervene, granting the Petition will result in a proceeding where one would not have been held. Of course, not granting the Petition to inter-vene would result in no forum for Petitioner to raise his concerns. On balance, the Staff-concludes that Petitioner has not satisfied the test for discretionary intervention.
-C. The Specific Aspect Requirement The aspects identified by Mr. Doherty might be identified as issues
~t hat could be considered by a Licensing Board if Mr. Doherty could overcome the prerequisite hurdle of interest as specified in 10 C.F.R. Q 2.714 and Commission precedent. The Staff does not believe Mr. Doherty has done so.
IV. CONCLUSION For the reasons given above, the Staff submits that John F. Doherty has not established standing to intervene. His petition being the only one submitted, the Staff urges the Board to deny Mr. Doherty's petition and_ dismiss the proceeding.
Respectfully submi ted, Myro arman Dep y Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 20th day of May, 1985
ENVIRONMENTAL CONSIDERATIONS REGARDING THE LICENSING OF RESEARCH REACTORS AND CRITICAL FACILITIES Introduction This discussion deals with research reactors and critical facilities which are designed to operate at low power levels, 2 MWt and lower, and are used primarily'for basic research in neutron physics, neutron radiography, isotope production, experiments associated with nuclear engineering, training and as a part of the nuclear physics curriculum. Operation of such facilities will-generally not exceed a 5 day week, 8 hour9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> day or about 2000 hours0.0231 days <br />0.556 hours <br />0.00331 weeks <br />7.61e-4 months <br /> per year.
a Such reactors are located adjacent to technical service support facilities with convenient access for students and faculty.
Sited most frequently on the. campus of large universities, the reactors are usually housed in already existing structures, appropriately modified, or placed in new buildings that are designed and constructed to blend in with existing facilities.
Facility
~There are no exterior conduits, pipelines, electrical or mechanical structures L' or transmission lines attached to or adjacent to the facility other than utility service facilities which are similar to those required in otner campus L facilities, specifically laboratories. Heat dissipation is generally accom-plished by use of a cooling tower located on the roof of the building. These
. cooling towers are on the order of 10' x 10' x 10' and are comparable to cooling towers associated with the air-conditioning system of large office buildings.
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[ Make up for this cooling system is readily available and usually obtained .
from the local water supply. Radioactive gaseous effluents are limited to Ar 41.and the release of radioactive liquid effluents can be carefully .j monitored and contgolled. These liquid wastes are collected in storage tanks
. .to allow for decay and' monitoring prior to dilution and release to the 3-Q-2 l e
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sanitary sewer systems. Solid radioactive ~ wastes are packaged and shipped -
off-site for storage at NRC approved sites. The transportation of;such waste is done in accordance'with existing.NRC-DOT regulations in-approved shipping
- containers.
Chemical and sanitary waste systems are similar to those existing at other
- university. laboratories ~and' buildings.
Environm'ntale Effects of Site Preparation and Facility Construction Construction of such facilities invariably occurs in areas that have already been disturbed by other university building construction and in some cases.
-solely'within an already existing building. Therefore, construction would not'De expected to-have any significant affect on the terrain, vegetation, wildlife or nearby waters or. aquatic life. The societal, economic and esthetic impacts of construction would be no greater than that associated with the construction of a large office building or similar university facility.
Environmental' Effects of Facility Ope.ation Release of thermal effluents from a reactor of le.ss than 2 MWt will not. have a.significant effect on th'e environment. This small amount of waste heat is generally rejected to the . mosphere by_means of small. cooling towers.
- Extensive drift and/or fog will not occur at this low power level.
. Release of routine gaseous effluent can be limited to Ar 41 which is generated by neutron activation of air. This will be kept as low as practicable by minimum air ventilation of the tubes. Yearly doses to unrestricted areas
- will be at or below establi,shed limits. Routine releases of radioactive liquid effluents can be carefully monitored and controlled in a manner that
- will ensure'compitance with current standards. Solid radioactive wastes will be shipped to'an authorized disposal site in approved containers. These wastes'should not amount to more-than a few shipping containers a year.
- Based on experience with other research reactors, specifically TRIGA reactors,
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operating ^in the 1 to 2~MWt range, the annual release of gaseous and liquid
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effluents to unrestricted areas should be less than 30 curies and 0.01 curies I respectively.
No release of potentially harmful chemical substances will occur during normal operation. Small amounts of chemicals and/or high-solid content water may be released from the facility through the sanitary sewer during periodic blowdown of cooling tower or from laboratory experiments.
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Other potential effects of the facility, such as esthetics, noise, societal or impact on local flora and fauna are expected to be too small to measure.
Environmental Effects of Accidents Accidents ranging from.the failure of experiments up to the largest core damage and fission product release considered possible result in doses of only a small fraction of 10 CFR Part 100 guidelines and are considered negligible with respect to the environment.
Unavoidable Effects of Facility Construction and Operation The unavoidable effects of construction and operation involves the materials used in construction that cannot be recovered and the fissionable material used in the reactor. No adverse impact on the environment is expected from either of these unavoidable effects.
Alternatives to Construction and Operation of the Facility To accomplish the objectives associated with research reactors, there are no suitable alternatives. Some of these objectives are training of students in theoperationofreactors,hroductionofradioisotopes,anduseofneutron and gamma ray beams to Conduct experiments.
Long-Term Effects of Facility Construction and Operation The long-term effects of research facilities are considered to be beneficial as a result of the hontribution to scientific knowledge and training.
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-Because of the relatively low amount of capital resources involved and the
- small impact on the environment very little irreversible and irretrievable commitment is associated with such facilities.
Costs and Benefits of Facility and Alternatives
. The costs are on the order of several millions of dollars with very little environmental impact. The benefits include, but are not limited to, some combination of the following: conduct of activation analyses, conduct of neutron radiography, training of operating personnel and education of students.
Some of these activities could be conducted using particle accelerators or radioactive sources which would be more costly and less efficient. There is no reasonable alternative to a nuclear research reactor for conducting this spectrum of. tivities.
Conclusion The staff concludes that there will be no significant environmental impact associated with the licensing of research reactors or critical facilities designed to operate at power levels of 2 MWt or lower and that no environmental impact statements are required to be written for the issuance of construction permits or operating licenses for such facilities. .
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
-BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 00LKETED./
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'JS NR C ,
In the Matter of i UNIVERSITY OF LOWELL (Training and Research Reactor) ) (;FFICE OF SECRETAt0
) 00CKETING & SERVICI.
BRANCH
. CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE OF JOHN F. DOHERTY" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system, this 20th day of
. May 1985:
Herbert Grossman, Chairman
- Atomic Safety and Licensing Administrative Judge Board Panel *
. Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Dr. Ernest F. Hill Docket and Service Section*
Administrative Judge Office of the Secretary Hill Associates U.S. Nuclear Regulatory Comission 210 Montego Drive Washington, DC 20555 Danville, CA 94526 Dr. Richard F. Cole Atomic Safety and Licensing
- Administrative Judge Appeal Board Panel
- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission -
U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 i
l . John F. Doherty Robert Sullivan, Esq.
l - 318 Summit Avenue Apt. 3 174 Central Street Lowell, MA 01854 Brighton, MA 02135 Myron Ka n Deputy istant Chief Hearing Counsil l
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