ML20141H193

Response Opposing Citizens for Land & Water Use 860411 Petition for Leave to Intervene.Petitioner Failed to Plead Admissible Contention to Identify Deficiencies in Licensee Method of Low Level Waste Disposal.W/Certificate of Svc

ML20141H193
Person / Time
Site:	Davis Besse
Issue date:	04/22/1986
From:	Silberg J TOLEDO EDISON CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-887 ML, TAC-60875, NUDOCS 8604240165
Download: ML20141H193 (10)

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I C hl 22, 1986

'86 APR 23 p; ;gg UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIS$ TON,.

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Before the Administrative Judge l

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In the Matter of )

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TOLEDO EDISON COMPANY, et al. ) Docket No. 50-346-ML

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(Davis-Besse Nuclear Power )

Station, Unit No. 1) )

LICENSEE'S RESPONSE OPPOSING THE PETITION OF CITIZENS FOR LAND AND WATER USE FOR LEAVE TO INTERVENE The Toledo Edison Company et al. (" Licensee") hereby re-l sponds to the Petition of Citizens for Land and Water Use

("CLWU"), which was filed with the Presiding Officer on April 11, 1986. Licensee submits that the petition should be denied.

I. Introduction This proceeding involves the authorization which the Nuclear Regulatory Commission granted Licensee to bury very low-level radioactive waste at the Davis-Besse site. The waste in question is resin from the Davis-Besse plant's secondary system demineralizer. Approval of Licensee's proposal was 8604240165 860422 goa ^oocko5ooBA' c 03)

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sought in accordance with 10 C.F.R. S 20.302(a) and IE Information Notice No. 83-05 (February 24, 1983), and was granted by the Nuclear Regulatory Commission in October, 1985.

Subsequent to this approval, several individuals and orga-nizations requested a hearing. On February 20, 1986, the Com-mission instituted an informal proceeding upon these requests.

Commission Order (February 20, 1986). The Commission stated that the petitions to intervene must set forth with particularity (1) the interest of that person in the proceeding; i (2) how that interest may be affected by l the results of the proceeding, including a delineation of the reasons why that person should be permitted to intervene that makes particular reference to (a) the nature of the person's right under the Atomic Energy Act to be made a party, (b) the nature and extent of the person's property, financial, or other interest in the proceeding, and (c) the possible effect of any order that may be entered in the proceeding on the person's interest; and (3) the specific as-i pect or aspects of the subject matter of i the proceeding that the person seeks to have litigated.

Id. at 3. The Commission further stated that the standing of petitioners to intervene will be governed by existing NRC prec-edents under 10 C.F.R. 5 2.714(d). Id. at 4.

On March 10, 1986, the Presiding Officer issued a Memoran-dum and Order providing notice of the informal proceeding and opportunity to become a party. 51 Fed. Reg. 8,920 (1986). The Order reiterated the pleading requirements that were set forth

in the Commission's February 20, 1986 Order, and further pro-vided:

. . . [P]etitioners are to describe specifically any deficiencies in the appli-cation, cite particular sections or por-tions of the application which relate to the deficiency, and state in detail the reasons why a particular section or portion i of the application is deficient. Petition- 1 ers must also submit all data and material in their possession which supports or 11-t lustrates each of the deficiencies com-plained of. Data and material from gener-ally available publications may be cited rather than furnished. Petitioners must also state what relief they seek with j respect to each of their complaints. A

! broad statement requesting denial or i i recision of the license or its amendment l l without stating why such extreme relief is j appropriate wi.1 not satisfy the require- 1 ment to state the relief sought.

Id (original emphasis).

II. Legal Standards for Intervention The Commission's and Presiding Officer's Orders require l

that a petitioner " set forth with particularity" its interest l l

and how that interest may be affected. Those orders also pro- )

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vide that the standing of petitioners to intervene will be gov-erned by existing NRC precedent under 10 C.F.R. 5 2.714(d).

Under NRC precedent, contemporary concepts of judicial standing are to be used in allowing or disallowing interven-tion. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 N.R.C. 610, 613-14 (1976).

t The standing test is bifurcated. A petitioner must allege (1) " injury in fact" -- some injury that has resulted or will probably result -- and (2) an interest "arquably within the zone of interest protected by the statute." Id. at 613, citing Sierra Club v. Morton, 405 U.S. 727 (1972); Warth v. Seldin, 422 U.S. 490 (1975). Nevertheless, it is generally assumed that an individual has the requisite interest if he resides in close proximity to the plant. Virginia Electric and Power Co.

(North Anna Power Station, Units 1 and 2), ALAB-522, 9 N.R.C.

54, 56 (1979).

In cases involving applications for a permit to construct or a license to operate a commercial nuclear reactor, residence within 50 miles of the site is generally sufficient to estab-lish standing. Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 N.R.C. 1418, 1421 n.4 (1977); Philadelohia Electric Co. (Limerick Generating Station, Units 1 & 2), LBP-82-43A, 15 N.R.C. 1423, 1433 (1982). How-ever, while nearby residence will also establish standing to intervene in a materials licensing proceeding,1/ closer proxim-ity should be required in those types of cases than in reactor licensing proceedings. In Boston Edison Co. (Pilgrim Nuclear Power Station), LBP-85-24, 22 N.R.C. 97, 99 (1985), aff'd on 1/ Armed Forces Radiobiology Research Institute) (Cobalt-60 5torage Facility), ALAB-682, 16 N.R.C. 150, 154 (1982) (resi-dence within three miles of facility sufficient).

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other grounds, ALAB-816, 22 N.R.C. 461 (1985), the Licensing Board held that residence 43 miles from a plant was insuffi-cient to establish standing in a proceeding addressing spent fuel storage. The application of a stricter rule to a materi-als licensing proceeding was also advanced by former Commic-sioner Ahearne:

[T]here is some difficulty using the con-cept of " geographical proximity." For power reactors, geograohical proximity (living within about 50 or 60 miles is suf-ficient to establish standing because we infer a health and safety interest from that proximity.

. . . Clearly a reactor poses a threat for a broader geographic area than most activi-ties licensed under a materials license.

Whereas living 50 or 60 miles may be suffi-cient to establish standing for a reactor, I could not expect it to be sufficient for most materials licenses.

Rockwell International (Energy Systems Group Special Nuclear Materials License No. SNM-21), CLI-83-15, 17 N.R.C. 1001, 1005 (1983) (additional views of Commissioner Ahearne).

A petitioner that is an organization may have standing as a representative of its members, as long as at least some of its members would be entitled to intervene in their own right.

To establish representational standing, an organization must identify by name and address at least one of its members who has the requisite interest and who wishes to be represented by the organization. Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-536, 9 N.R.C. 402, l

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404 (1979). Furthermore, where an organization's authorization to represent the member is not self-evident (e.g. where it can-not be inferred from the organization's charter), a specific representational authorization by that individual must be pro-vided. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 N.R.C. 377, 396-97 (1979).

In a formal NRC proceeding, a petitioner must also plead at least one admissible contention in order to be granted party status. 10 C.F.R. 5 2.714. The requirement in this informal proceeding that a petitioner must identify and support issues with particularity dictates the imposition of an analogous requirement here. Where a petitioner has failed to identify with specificity a cognizable issue and to support that issue with citations, discussion, data, and documents or references, the petitioner should be denied party status.

III. The Petition of Citizens for Land and Water Use Should be Denied CLWU has clearly failed to demonstrate standing to inter-vene. CLWU identifies no property, financial, or other inter-est that might be affected, and alleges no injury to itself.

Nor does CLWU demonstrate representational standing. The only CLWU member identified is its president, Mrs. James H. Angel, who signed the petition. Mrs. Angel apparently resides in Cleveland, as indicated by the address stated on the petition.

Cleveland is approximately 70 miles from the Davis-Besse site

-- too far away to confer standing on a resident. Furthermore, Mrs. Angel alleges no personal interest, but instead asserts entitlement to intervene on behalf of the common good. Expres-sions of broad interest or of a generalized grievance shared by a large class, however, are not a substitute for the distinct and palpable personal harm that must be alleged to support standing. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-83-25, 18 N.R.C. 327, 332-33 (1983).2/

CLWU has also failed to identify particular deficiencies in Licensee's method of disposal of the very low level waste in question, or in Licensee's or the NRC Staff's assessments. The petition therefore fails to satisfy the Presiding Officer's clear instruction to describe deficiencies specifically, pro-vide particular citations, and submit supporting data and mate-rials. CLWU's failure to identify specific issues is further grounds to deny its intervention request.

2/ When a petitioner fails to demonstrate standing as of right, a presiding officer may still allow intervention as a matter of discretion. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 N.R.C. 610, 614-17 (1976). However, such intervention depends on a balanc-ing of factors, the most important of which is a petitioner's potential contribution to the record. Id. at (116-17. A peti-tioner, as the proponent of an order permitting discretionary intervention, has the burden of persuasion. In the case at hand, CLWU has made no such affirmative showing.

t IV. Conclusion For the reasons stated above, the petition of Citizens for Land and Water Use, dated April 11, 1986, should be denied.

Respectfully submitted,

/i f Japf. Silberg, P.C.

DaMd 11. Lewis /

SEAW, PITTMAN, POTTS & TROWBRIDGE Counsel for The Toledo Edison Company et al.

Dated: April 22, 1986 I

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9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Administrative Judge In the Matter of )

) Docket No. 50-346-ML TOLEDO EDISON COMPANY, ET AL. )

)

(Davis-Besse Nuclear Power )

Station, Unit No. 1) )

CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing LICENSEE'S RESPONSE OPPOSING THE PETITION OF CITIZENS FOR LAND AND WATER USE FOR LEAVE TO INTERVENE was mailed, first class mail, postage prepaid, to the attached service list, this 22nd day of April, 1986.

& / (

J& l E. Silberg SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N. W.

Washington, D. C. 20036 (202) 822-1474

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Administrative Judge In the Matter of )

) Docket No. 50-346-ML TOLEDO EDISON COMPANY, ET AL. )

)

(Davis-Besse Nuclear Power )

Station, Unit No. 1) )

SERVICE LIST Helen F. Hoyt, Esquire Charles A. Barth, Esquire Administrative Judge Office of the Executive Legal Atomic Safety and Licensing Board Director U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Docketing & Service Section Citizens for Land & Water Use, Inc.

Office of the Secretary c/o Mrs. James H. Angel, President U. S. Nuclear Regulatory Commission 2084 Elbur Avenue Washington, D. C. 20555 Cleveland, Ohio 44107