ML20137J360
| ML20137J360 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 08/27/1985 |
| From: | Dignan T, Stowe W BOSTON EDISON CO., ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20137J355 | List: |
| References | |
| CON-#385 OLA, NUDOCS 8508300268 | |
| Download: ML20137J360 (22) | |
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UNITED STATES OF AMERICA COLKETED NUCLEAR REGULATORY COMMISSION USMC before the
'85 AUG 29 P12:04 ATOMIC SAFETY AND LICENSING APPEAL BOARD-CrFICE 0: SECRCTF C0CKETit!G & SERVICf BRANCH
)
In.the Matter of )
)
BOSTON EDISON COMPANY ) Docket No. 50-293-OLA
)
Pilgrim Nuclear Power )
Station, Unit 1) )
)
Thomas G. Dignan, Jr.
R. K. Gad III Ropes & Gray 225 Franklin Street Boston, FA 02110 William S. Stowe Boston Edison Company 800 Boylston Street Boston, VA 02109 August 27,-1985 Attorneys for the Licensee 8508300268 850827 PDR. ADOCK 05000293 0 PDR
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- TABLE OF CONTENTS Page
-TABLE OF NUTHORITIES .................................... ii .
l STATEMENT OF FACTS-AND PRIOR PROCEEDINGS ................. 1 STATEMENT OF ISSUES ...................................... 5 l
ARGUMENT ................................................. 5 I. The Decision of the ASLB to Decide the Matter Below Without First Affording Mr. Doherty a Chance to Reply to the Responses of the Licensee and the Staff Does not Constitute Error ................. 5 e
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II. The ASLB Made no Improper Use of Extra Record Facts ....................... 9 III. Th'e Decision of the ASLB'Was Wholly Correct on the Merits ................... 11 Introduction =................................... 11 A. The ASLB Was Clearly Correct in Ruling That the Request Failed to Satisfy.the' Requirements of 10 CFR 5 2.714 for Late Filing ................... 11 B. The Board's' Ruling as:to Standing Was Correct ...................... 13 CONCLUSION .............................................. 17-4
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TABLE OF AUTHORITIES Page(s)
AGENCY DECISIONS Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Facility),
ALAB-682, 16 NRC 150 (1982) ................... 11,14,16 Duquesne Light Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243 (1973) .................................. 7,13 Gulf States Utilities Co. (River Bend Station, Units 1 and 2),
ALAB-444, 6 NRC 760 (1977) .......................... 14 Houston ~ Lighting and Power Co. (Allens Creek Nuclear Generating Station),
ALAB-582, 11 NRC 239 (1980) .................. ...... 14 Houston Lighter and Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-565, 10 NRC 521 (1979) ........................ 6,7 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
ALAB-743, 18 NRC 387 (1983) ......................... 12 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188 (1973) ........ 7,13 Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),
CLI-76-27, 4 NRC 610 (1976) ......................... 14 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-758, 19 NRC 7 (1984) ......... ............ ..... 2 Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),
CLI-80-3), 12 NRC 264 (1980) ........................ 10
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'Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-397, 5 NRC 1143, reconsid.
denied, ALAB-402, 5 NRC 1182 (1977) ................. 14 Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2),
ALAB-413, 5 NRC 1418 (1977) .......................... 8 Virginia Flectric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54 (1979) ....... 11,13,14,15,16
' Washington Public Power Supply System (WPPSS Nuclear Project No. 3),
ALAB-747, 18 NRC 1167-(1983) ...................... 8,12 REGULATIONS 10 CFR $ 2.714 ....................................... 3 10 CFR $ 2.714a .s.... ............................. 1,' 4 10 CFR $ 2.743(i) ................................... 10 OTHER Boston Edison Company (Pilgrim Nuclear Power Station, Unit 1), ASLBP No. 85-510-01 LA (July 19, 1985) ..................... 4 F. R. Civ. P. 24 ..................................... 7
-Notice of Opportunity for Hearing, Boston Edison Co. (Pilgrim Station, Unit 1), Dkt.
No. 50-293, 50' Fed. Reg. 20971 (May 2*., 1985) ..... 1,17 Vonella v. Northern Assurance Co.,'160 A.2d 672 (N.J. Super. 1960) .......................... 6 5 U.S.C~. $ 557(c)(3)(A) .............................. 9 3
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION sh,5h0 g
before the ATOMIC. SAFETY AND LICENSING APPEAL BOARD GTFICE OF SEchiTpa r 00CKETsNG & SEPVjCf.
BRANCH
)
In the Matter of ) ,
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BOSTON EDISON COMPANY ) Docket-No. 50-293-OLA
. )
(Pilgrim Nuclear Power )
. Station, Unit'l) )
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LICENSEE'S BRIEF STATEMENT OF FACTS AND PRIOR'FROCEEDINGS
'This is an appeal under 10 CFR $ 2.714a of a decision of an'Atcmic Safety and Licensing Board (ASLB) denying the request for a hearing and petition for leave to intervene filed by Mr. Jchn F. Doherty in the above-captioned operating license-amendment proceeding. .
On May 21, 1985, the Commission caused to be published in the Federal Register a notice of an opportunity for hearing with_ respect to an amendment to the Operating License of Pilgrim Nuclear Power Station, Unit 1 (Pilgrim) held by Boston Edison Company (Edis'en or Licensee). SO Fed.
Reg. 20971. One purpose of the amendment, and the only part challenged by Mr. Doherty, was to raise the K-effective
' limit for the fuel-storage pool during " normal" operations t
from .90 to .95, the latter figure being equal to that already allowed for " abnormal" conditions. .The notice further provided that any requests for a hearing must be filed by June 21, 1985. Eight days after that date, on
' June 29, 1985, Mr. Doherty. filed the document at issue here entitled: "Requett-for Hearing and Petition for Leave to Intervene with Regard to Unnumbered Amendment to Operating License DPR-35 Announced in the Federal Register, May 21, 1985" (the Request).
Prior to consideration of the Request in detail, it should be noted, as appears from document on file with the Commission, that Mr. Doherty is hardly a neophyte where NRC proceedings are concerned. Almost two years ago, under date of September 6, 1983, Mr. Doherty filed a petition for late intervention in the Seabrook proceeding. John F. Doherty's Petition for Leave to Intervene, Public Service Company of New Hampshire-(Seabrook Station, Units 1 and 2), NRC Dkt. ,
Nos. 50-444 OL, 50-445 OL (Sept. 6, 1983).2 Therein Mr. Doherty recited that he had, " participated in all phases.
of the Allens Creek construction permit proceedings from 1978 to 1982." Id. at 6-7. Of more moment, in that Seabrook petition, Mr. Doherty evidenced a full
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1 Denial of Mr. Doherty's Petition in Seabrook was affirmed by the Appeal Board therein. Public Service i Company of New Hampshire (Seabrook Station, Units 1 and 2 ),
,. ALAB-758,.19 NRC 7 (1984).
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understanding and appreciation of the showing' required under 10 CFR 9 2.714 for late-filed requests or petitions. See, id. at 5-7.
The Request filed in this matter, on the other hand, set forth not'even a' hint ,of justification for the late filing, much less a discussion of the "four factors" as required by 10 CFR $ 2.714. With respect to establishing standing Mr. Doherty alleged a total,of four bases: (1) his residence 43 miles from the Pilgrim Spent Fuel Pool; (2) his consunptionaof food grown near the Pilgrim Plant, in particular, cranberries, (3) his consumptien of fish caught in Massachusetts Bay, and (4) his status as a ratepay'er of Edison.
Both the Licensee and the Staff filed responses to the Request. In.its response,2 the Licensee argued that the Request was untimely and pointed out that no showing of good cause for tardiness had been made. Further, the Licensee argued that the Request did not set forth sufficient allegations of standing. The Staff response 8 conceded the issue of standing. In addition,-the Staff set out an exhaustive analysis of the various factors required to be 2 Licensee's Answer to John F. Doherty's Request for a Hearing and Petition for Leave to Intervene (July 12, 1985).
3 NRC Staff Response to John F. Doherty's Petition for Leave to Intervene (July 19, 1985)-(" Staff Response").
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l analyzed under 10 CFR l'2.714 and argued that a balancing of the factors-showed a balance "slightly against the petition for~ leave to intervene." Staff Response at 9. The Staff
- went on to analyze the Request as if it had been timely.
filed and concluded that, absent its tardiness, the Request would have been sufficient under the Rules of Practice. The Staff.took the position that the ASLB had the discretion to either dismiss the Request or-direct Mr. Doherty to provide further'information as to the. reasons for failing to file on-time and his ability to "make a' valuable contribution in
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this proceeding". Id. at 15.
On July 19, 1985, the ASLB issued the Order at bar.
' Boston Edison Company, (' Pilgrim Nuclear Power Station, Unit 1), ASLBP No. 85-510-01 LA (July 19, 1985) (the Order). The ASLB dismissed the Request "both for lateness and for lack of standing." Order at 4. After this Appeal Board's sua sponte grant of an extension of time to do so,* Mr. Doherty filed, L on August 14, 1985, a Notice of Appeal and Brief in Support thereof. See 10 CFR 6 2.714a. \
It is in the foregoing posture that this matter comes before this Appeal Board.
- Appeal Board Order of July 31, 1985, in Dkt. No. 50-293 OLA.
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STATEMENT OF ISSUES The Appellant's Brief (App. gr.) in this matter contains no statement of issues as such.and it is not entirely clear exactly what.-issues are being raised. However, our reading of the Appellant's Brief and particularly the portion headed
" Denial of the Petition was based on two reasons", Ann. Br.
at 3, indicates that Mr. Doherty is raising two specific legal issues for consideration by this Appeal Board, viz.:
- 1. Does the ASLB's action in denying the Request without first affording Mr. Doherty an opportunity to reply to the responses of the Licensee and the Staff constitute error?
- 2. Whether the ASLB's ruling as to Mr. Doherty's lack of standing was improperly based upon extra-record facts?
ARGUMENT I. The Decision of the ASLB to Decide the Matter Below Without First Affording Mr. Doherty a Chance to Reply to the
- Responses of the Licensee and the Staff Does not Constitute Error Mr. Doherty's first claim of error arises from the fact that the ASLB did not afford him an opportunity to reply to the responses of Edison and the Staff before ruling on the Request. This claim is made despite Mr. Doherty's candid :
admission that "there is no statutory or common law requirement that reply be permitted at the pleading stage as here. . . ." App. gr. at 4. In support of his position that l-
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an opportunity for reply should have been afforded him, Mr. Doherty points to case law from New Jersey and the decision of the Appeal Board in Houston Lighting and Power
-Co.-(Allens Creek Nuclear Generating Station, Unit 1),
ALAB-565, 10'NRC 521 (1979).
To begin with the New Jersey case cited by Mr. Doherty,
.Vonella v. No*thern Assurance Co., 160 A.2d 672 (N.J. Super.
1960), has nothing to do with the issue at bar. That case involved the question ~of whether or not under the applicable court rules of New Jersey the defendants had waived their
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right to claim a jury trial. Turning now to Mr. Doherty's reliance on ALAB-565: In ALAB-565 the Appeal Board held that a Licensing Board could not dismiss proferred contentions from a proceeding without first giving the proponent an opportunity to meet the arguments of the applicants or-staff as to why the contentions were invalid.
In so ruling, the Appeal Board in ALAB-565 analogized such'a situation to that which exists when a motion to dismiss is filed in. Federal Court:
"We believe that a contention, like a complaint in federal court, is intended-to reflect what a party intends to prove on the merits but not an argument as to why his pleading should be entertained over his opponent's as yet unstated objections. Thus, when a defendant moves to dismiss a complaint (see, e.g.,
Rule 12(b), F.R. Civ. P.), a plaintiff is--and must be-- allowed the opportunity to respond to the motion.
In this respect, regardless of how it is denominated, a suggestion by the t
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applicant and staff'that a particular contention is inadmissible (e.g.,
because it constitutes an attack upon Commission regulations) is akin to a
. motion to dismiss." 10 NRC at 524-25."
Footnotes omitted.
Houever,-a request'for hearing or petition for leave to
- intervene is not like a complaint in a court trial. .It is rather in-the nature of a motion to intervene and as such it, like a motion to intervene,_must, in the first' instance be'accompaniedbyashowing~5feitherarighttointervene or aLsufficient showing.to have the Licensing Board allow intervention as a matter.of discretion. Compare F. R. Civ.
. P. 24. Thus, the absolute rule espeused'in ALAB-565 is
- inapplicable to the original intervention request or petition in NRC practice.
In this particular case, any further right to be heard on the timeliness question would, of' necessity, require an amendment of the Request inasmuch as Mr. Doherty had made no showing at all of " good cause" or as to the "four factors" as required by 10 CFR $ 2.714. It has been the' law for over, ten years that the question of whether o'r not to allow amendment of a deficient petition for. intervention or request for a hearing is a matter of discretion for the Licensing Board. E.g., Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-lO7, 6 AEC 188, 193 (1973); Duquesne Licht Co. (Beaver Valley Power.
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Station, Unit 1), ALAB-109, 6 AEC 243, 244 (1973).5 And it is clear on these facts that no abuse of discretion
. occurred. The ASLB was faced with a totally deficient late-filed petition filed by an individual without standing (or at most very tenuous standing) who was not unsophisticated and in the absence of whose filing there
.would be no hearing. This latter point has been specifically. recognized as a matter to be given weight in analyzing whether or not there has been a showing that the
-late petitioner would assist in developing a sound record.
Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1157, 1180-81 (1983); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2),
ALAB-413, 5 NRC 1418, 1422 (1977). Mr. Doherty's situation presented no compelling case for an exercise of discretion in his favor. Moreover, it is doubtful that, had he been afforded an opportunity-to amend the Request and argue ,
further, that Mr. Doherty would have improved upon the analysis of his situation done by the Staff in its Response.
,That analysis gave'Mr. Doherty every benefit of the doubt.
5 Licensee readily acknowledges that the cited cases and those which follow them virtually all, if not all, involve situations where the opportunity to amend was granted.
~However, the principle that the Licensing Board's ruling will be overturned only for an abuse of discretion is just as valid where, as here, the discretion is exercised to deny an opportunity to. amend.
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In these circumstances it constituted no abuse of
- 7 discretion for the ASLB not tc allow sua sponte a further opportunity for Mr. Doherty to plead.8 II. The ASLB Made No Improper Use of Extra Record Facts Mr. Doherty's second claim of error is_ articulated in his Brief thus:
. ."Further, in supporting its finding of lack of standing,'the ASLB stated, '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.'
(Order, p. 4) Petitioner believes by its finding there were no scenarios in the Petition that met the ASLB's requirements, the ASLB violated the Administrative Procedures Act, (60 Stat.
237, (1946)), 5 U.S.C., in particular 9'557(c)(A) (Section 8b of the 1946 Act) since it is a finding outside the record and based on information not judicially noticed. That Petitioner had not informed the ASLB of any-scenario (or indeed if Petitioner could) is in the realm.of contentions." App. Br. at 6.
Presumably, the APA reference intended is to 5 U.S.C.
5 557(c)(3)(A) which deals with initial decisions and sets
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8 The ASLB Order issued on July 19, 1985. This is seven
- i. full days after the Licensee's response was filed by mail.
As a Bostonian, Mr. Doherty likely had the Licensee response before, or certainly at the same time as, the ASLB members.
Yet he made no move to seek to amend the Request although he was on full notice that it had been challenged both for untimeliness and on standing grounds.
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-forth a portion of the requirements therefore. In particular, it states, in material part, that:
"All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include'a~ statement of --
(A) findings and conclusions,'and the reasons or basis therefor, on all the material; issues of-fact,.
law, or discretion presented on the record;"
It is difficult to see how the ASLB has transgressed this
-statute in any fashion. If, what Mr. Doherty intended to argue is that the ASLB utilized extra-record or official,1y
- noticed facts in reaching its decision without having provided him an opportunity to controvert ruch facts, see 10 CFR 6'2.743(1); Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-31, 12 NRC 264, 277 (1980), the argument-is misplaced. The ASLB did not rely on extra-record facts. It merely recited the fact that (a) it-could think up no scenario of its own and (b) that the Request set forth none (which is a fact on the record). In short, the ASLB simply did not do what Mr. Doherty says it did'in support of his second claim of error.
Finally, it may be suggested'that the language of the
- Licensing Board decision transgresses the rule that once "close geographical proximity" is established, a putative intervenor need not particularize a causal relationship between the licensing action and the injury to the pleaded
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-j interest. Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Facility), ALAB-682, 16 NRC 150, 153-55 (1982); Virginia Electric'and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 57 n.5 (1979). If.that is the unstated thrust.of the argument, it is without merit for the reasons set forth in Section III.B.
below.
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III. The Decision of the ASLB Was' Wholly Correct on the Merits Introduction As noted~ earlier, supra p. 5, exactly what issues are being raised on this appeal is not completely clear. In light'of that fact, we herein address directly the merits of the two rulings of the ASLB: (1) the holding that the Request should be dismissed as untimely and (2) the holding that Mr. Doherty lacked standing.
A. The ASLB Was Clearly Correct in Ruling That The Request Failed to Satisfy the Requirements of 10 CFR ,
i 2.714 for Late Filing Prescinding from the issue of whether Mr. Doherty should have been afforded an opportunity to amend (discussed supra
$ I), it is beyond doubt that the Board was correct with respect to the timeliness ruling on the merite. The Request was bereft of any showing of good cause for failure to file on time and of any attempt to analyze the "four factors".
Indeed, it would likely have been reversible error for the L1
ASLB to have allowed the Request (even under the abuse of discretion standard which would have been applied if an appeal had been taken). Even the Staff's efforts to analyze the four factors, which gave Mr. Doherty every benefit of
.the doubt, came out against allowance of the Request.
Certainly nothing in the brief filed before this Appeal Board gives a hint'that there is still unrevealed some information which would change the result. Indeed, even if.
this Appeal. Board should discern from the Petition a basis on which to come to the. conclusion that this Appeal Board
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would have reached, in balancing the various factors, a.
different result, this alone still would avail Mr. Doherty nothing. "[N]either this Board'nor the Commission has been
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readily disposed to substitute its judgment for that of a Licensing Board insofar as the outcome of the balancing of the Section 2.714(a) factors is concerned." Long Island Lighting'Co. (Shoreham Nucle'ar Power Station, Unit 1),
- ALAB-743, 18 NRC 387, 395 (1983). To overrule the judgment of the ASLB on timeliness, this Appeal Board "must be persuaded that a reasonable mind could reach no other result." ALAB-747, supra at 1171.
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O We respectfully suggest that on the record below not only could a reasonable mind reach the result reached by the ASLB, such a mind could reach no other.7 B. The Board's Ruling as to Standing Was Correct As noted earlier, Mr. Doherty asserted four bases for standing: his status as a ratepayer of Edison; the fact that he consumed food,-in particular, cranberries, grown near Pilgrim, the fact that he ate fish caught in
. Massachusetts Bay into which Pilgrim makes liquid radioactive discharges and the fact that he resides 43 miles from Pilgrim.
It is settled that, at least absent a holding that an improper legal standard has been applied, ALAB-522, supra at 57, n.5, a Licensing Board determination as to whether a petitioner has demonstrated sufficient interest or. standing will not be overturned unless it is " irrational." ALAB-109, supra at 244; ALAB-107, supra at 193. Far from being irrational, the ASLB decision herein was in ful'1 accord with applicable legal principles and a decision of common sense.
It is the rule that one's status as a ratepayer provides no basis for finding standing in an NRC proceeding dealing 7
It might be suggested that the ASLB did no balancing of factors and thus the cases cited are not controlling. Such an argument overlooks the fact that given the Request as framed, there was nothing before the Board to balance.
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only with safety issues. Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614 (1976); Public Service Company'of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143, 1147, reconsid. denied, ALAB-402, 5 NRC 1182 (1977);
ALAB-413, supra at 1420-21; Gulf State Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 795 n.75 (1977); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station), ALAB-582, 11 NRC 239, 243 n.8 (1980).
And while the fact that a putative intervenor " recreates" on oor in the waters to which a nuclear plant discharges or the land adjacent to the plant might be argued to confer standing, ALAB-522, supra at 57, no case we are aware of has premised standing upon consumption of food grown or fish caught near the plant. To do so would, in the case of an ocean-front plant like Pilgrim, give standing to everyone in
.the world who ate saltwater. fish or cranberries from the Commonwealth of Massachusettc. Furthermore, a resident of North Carolina might presume standing in a Pilgrim proceeding on the theory that fish which swam near the plant migrated south during certain times of the year.
Thus, Mr. Doherty is left with the fact that his residence is 43 miles from Pilgrim Station. To analyze this aspect of the standing question, one must begin with the Appeal Board decisions in ALAB-522, supra and ALAB-682, supra. Both of those cases stand for the proposition that 14 -
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once an individual has established residence in "close proximity" to the locus of the' licensed activity, that individual.need not go further to establish standing. What neither of these cases did was define "close. proximity".
And, indeed, some langyage in ALAB-522 would appear to endorse the concept that the definition of "close proximity" might differ depending upon the type of licensing action
- being taken. .
"[The Licensee] insists ... that a different rule should obtain in amendment proceedings involving, as does this one, proposed licensing action of assertedly much more limited potential geographical reach. But although we might agree that, from a ' zone of harm' standpoint, this proceeding cannot be precisely equated with one involving issuance of a construction permit or operating license, the distinction is of little assistance to the licensee here.
Neither the Licensing Board nor we are in a position at this threshold stage to rule out as a matter of certainty the existence of a reasonable possibility that expansion of the spent fuel pool capacity might have an adverse effect on persons living nearby. ALAB-522, supra, at 56, (emphases added).
The intervenors being discussed in this quote were described in the decision as being persons, who " reside on the shore of Lake Anna in very close proximity to the North Anna facility." ALAB-522 at 55 and later as "living little more than a stone's throw from the facility," id. at 56. The above-quoted language should be contrasted with later language in the same opinion concerning another intervenor.
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" Potomac's claim of interest is
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admittedly not as strong; the closest of its identified members reside approximately 35 miles from the facility. A Potomac member residing in Richmond, 45 miles distant, supplied an affidavit, however, to the effect that she engages in canoeing on the North Anna River." Id. at 57.
The Appeal Board went on to say that but for the licensee's urging to_ expedite the settling of the intervention issue it would remand to the Licensing Board for further hearings the issue of the second intervenor's standing. Id.
In ALAB-6S2 the Appeal Board overturned a Licensing
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Board's denial of intervention by an organization attempting to intervene in a license renewal proceeding involving a Storage Facility for Cob' alt-60. The Licensing Board had distinguished ALAB-522 on the ground that what was involved in'the case before it was a "non-reactor source". ALAB-682 at 153. The Appeal Board reversed on the following facts:
"The uncontested affidavits filed in this proceeding establish that at least one member of petitioner's organization lives as close as three miles from a substantial source of radioactive material. . The inventory of radioactive cobalt at the facility is described as one of the largest in the United States." ALAB-682 at 154 (emphases added).
To this statement was appended a footnote stating the Appeal Board would officially notice the fact that another member of the intervenor organization lived within three-tenths of a mile of the facility at issue. Id. n.3.
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1 All of the foregoing leads to the conclusion that what constitutes "close proximity" varies inversely with the degree of hazard involved in the licensing activity. While the distance of a " stone's throw" may amount to "close proximity" for the expansion of the capacity of a spent fuel pool and 0.3-3 miles is enough in a proceeding to renew the license of the " largest [ inventory of radioactive cobalt] in the United States,",we respectfully suggest that the ASLB was absolutely correct in deciding that 43 miles did not-constitute "close proximity" in a licensing action to raise the K-effective of the Pilgrim spent fuel pool from .90 to
.95 for normal operation, an amendment as to which the Staff has already made a propose determination of no significant hazards consideration. 50 Fed. Reg. 20971.
CONCLUSION The decision of the ASLB should be affirmed.
e- e M & sub=1tted,
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Thomas G. Dignan, Jr.
R. K. Gad III Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 OJL ! tlc William S. Stowe
< c. a Boston Edison Company 800 Boylston Street Boston, MA 02109 (617) 424-2544 Attorneys for the Licensee
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- CERTIFICATE OF SERVICE OCLKEIED I, Thomas G. Dignan, Jr., hereby certify that on USNRC August 27, 1985, I made service of the within Brief by mailing copies thereof postage prepaid to:
'85 NJG 29 R2:04 Alan S. Rosenthal, Esquire, Chairman
' Atomic Safety and Licensing Appeal Panel , ,
U.S.. Nuclear Regulatory Commission GFFICE OC SELKt o"D EPVL Washington, DC 20555 00CKETt
, Dr. W. Reed Johnson Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Gary J. Edles, Esquire Atomic Safety and Licensing Appeal Panel -
U.S. Nuclear Regulatory Commission Washington, DC 20555
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Peter B. Bloch, Esquire, Chairman Atomic Safety and Licensing Board Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Gustave A. Linenberger, Jr.
Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Jerry Harbour Administrative Judge Atomic Safety and Licensing Bocrd Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Gregory Alan Berry, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. John F. Doherty 318 Summit Avenue Apartment 3 Brighton, MA 02135 _,
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./ /sw Thomas"G. Dign'an , Jr.
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