ML20129K156

Memorandum & Order Dismissing Jf Doherty 850621 Request for Hearing & Petition for Leave to Intervene.Decision Will Constitute Final Decision within 30 Days If Not Appealed. Served on 850722

ML20129K156
Person / Time
Site:	Pilgrim
Issue date:	07/19/1985
From:	Bloch P, Harbour J, Linenberger G Atomic Safety and Licensing Board Panel
To:	Doherty J DOHERTY, J.F.
References
CON-#385-906 85-510-01-LA, 85-510-1-LA, OLA, NUDOCS 8507230442
Download: ML20129K156 (5)

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UNITED STATES OF AMERICA acc,:ETED NUCLEAR REGULATORY COMMISSION UNC Before Administrative Judges:

' 65 JUL 22 P12:08 Peter B. Bloch, Chairman Mr. Gustave A. Linenberger, Jr. L.FricE cF SEcrtt rAsv Dr. Jerry Harbour 00CXETSG a SERVIO BRANCH ,

SERVED Jul.221985

)

In the Matter of ) Docket No. 50-293-0LA

)

BOSTON EDIS0N COMPANY ) ASLBP No. 85-510-01 LA

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(Pilgrim Nuclear Power Station) ) July 19, 1985

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MEMORANDUM AND ORDER MEMORANDUM (Petition to Intervene)

On June 21, 1985, Mr. John F. Doherty (" Petitioner") filed a

" Request for Hearing and Petition for Leave to Intervene" (" Petition").

However, the Petition was filed eight days after the last date for filing provided for in the notice that was published in the Federal Register.1 Petitioner should have been aware of the need for timely filings because that need was explained in the Federal Register notice.

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1 50 Fed. Reg. 20971 (May 21,1985). The 30 day notice period is binding pursuant to 10 CFR 6 2.714. ,

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50 Fed. Reg. at 20970.

8507230442 850719 PDR ADOCK 05000293 C PDR Y

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Petition to Intervene: 2 The procedural regulations require that we dismiss the petition because Mr. Doherty has not shown good cause for his late filing.3 3g we shall dismiss the petition.

Additionally, we note with approval the discussion of standing contained in " Licensee's Answer to John F. Doherty's Request for a Hearing and Petition For Leave to Intervene," July 12, 1985.4 Petition-er has not stated a valid ground for intervention.

There is clear precedent that status as a ratepayer of the utility that owns a nuclear plant does not confer standing to intervene.5 There is no precedent supporting standing based on the consumption of fish or cranberries (or other edibles), and such a claim is too sweeping as a b' asis for standing because it could be made by a vast army of consumers that might buy these products anywhere around the world.6 3' Non-timely filings may_ be entertained only upon a balancing of factors set forth in 10 CFR 52.714(a)(1).

4 The NRC Staff Response to John F. Doherty's Petition for Leave to Intervene, July 19, 1985, did not address Applicants' argument concerning the relationship between the specific amendment being requested and the distance required for standing. See Staff Response at 11-13.

5 E.g. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610, 614 (1976).

6 Standing requires a showing of injury from the challenged action and that the injury is within the zone of interests protected by the statutes governing the proceeding. See, e.g. , Portland General; Electric Co. (Pebble Springs Nuclear" Plant, Units 1 and 2),

CLI-76-27, 4 NRC 610, 614-615.

Petition to Intervene: 3 Furthermore, the fish-and-cranberry ground for standing shares a deficiency we also find in the claim for standing based on residence 43 miles from Pilgrim. Boston Edison Company is not applying for a con-struction license or an operating license for the Pilgrim Nuclear Power Station. If it were doing so, residence 43 miles from the plant might provide grounds for standing because there are scenarios under which effects might be felt at that distance from the plant.7 However, Pilgrim already is licensed to operate. The license includes permission to operate the fuel pool. Under abnormal conditions, Boston Edison Company is already permitted to operate its fuel pool with a K-effective of 0.95. Hence, the only increased risk of which Petitioner complains is that the maximum permissible K-effective of the pool would be changed from 0.90 to 0.95 under normal operating conditions.8 This case concerns a request for a license amendment and it is not controlled by the same standing considerations that govern standing when an operating license is sought. Whatever the risk to the surrounding community from a reactor and its associated fuel pool, the risk from the 7

See TVA (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC T4T8, 1421 at n. 4 (1977) (standing based on the distance of a residence could be granted for a residence 50 miles from a plant) and Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 & 2), LBP-81-24, 14 NRC 175, 179 (1981) (the strength of a claim for standing based on the location of a residence diminishes with the distance of the residence from ethe plant).

8 Petition at 2.

Petition to Intervene: 4 fuel pool alone is less and the distance of residence from the pool for which standing would be appropriate would, accordingly, be less.

Consequently, we do not consider residence 43 miles from this plant to be adequate for standing. We need not decide how close residence might be before standing would'be established.

In making this ruling, we note that we know of no scenario under which radiation attributable to the fuel pool would affect a residence 43 miles distant from the fuel pool; and petitioner has not informed us of any such scenario. Even were there a risk of an accident that would disperse the contents of the fuel pool to such a great distance, we know of no way that permitting an increase of k-effective during normal operations of the plant (to an upper limit already approved for abnormal operation) would increase the risk to Petitioner from such an incident.

Nor has Petitioner suggested any such scenario to us in support of his questionable claim to have standing.

Consequently, we conclude that the Petition must be denied both for lateness and for lack of standing.

ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 19th day of July 1985 ORDERED:

e i That the Request for Hearing and Petition for Leave to Intervene, filed by John F. Doherty on June 21, 1985, is dismissed.

e Petition to Intervene: 5 Pursuant to 10 CFR 5 2.760 of the Coninission's Rules of Practice, this decision will constitute the final decision of the Commission thirty (30) days from the 'date of its issuance, unless an appeal is taken in accordance with 10 CFR 5 2.762 or the Conunission directs otherwise. See also 10 CFR 99 2.785 and 2.786.

FOR THE ATOMIC SAFETY AND LICENSING BOARD 1

Peter 8. 01och, Chairman ADMINISTRATIV UDGE

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. Gustave A. L pqnf5erger, Jr.

MINISTRATIVE JUDGE Dr. Jerry Hhrbour ADMINISTRATIVE JUDGE Bethesda, Maryland e I

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