ML20141J384

Response Opposing Petition of City of Ashtabula,Oh for Leave to Intervene.Certificate of Svc & Svc List Encl

ML20141J384
Person / Time
Site:	Davis Besse
Issue date:	04/23/1986
From:	Silberg J SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-902 ML, TAC-60875, NUDOCS 8604280124
Download: ML20141J384 (11)

Text

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'86 APR 24 No:59 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I " _' 'Yul!.f.a y Before the Administrative Judge In.the Matter of )

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

)

(Davis-Besse Nuclear Power )

Station, Unit No. 1) )

LICENSEE'S 'ESPONSE R OPPOSING THE PETITION OF THE CITY OF ASHTABULA FOR LEAVE TO INTERVENE The Toledo Edison Company et al. (" Licensee") hereby re-sponds to undated, unsigned petition of the City of Ashtabula, Ohio, for leave to intervene. Licensee submits.that this peti-tion should be denied, but does not object to treating the pe-tition as a limited appearance statement.

I. Introduction This proceeding involves the authorization which the Nuclear Regulatory Commission granted to the 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 m

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secondary system demineralizer. Approval of Licensee's propos-al was sought in accordance with 10 C.F.R. S 20.302(a) and i 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 requected 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; (2) how that interest may be affected by 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-pect or aspects of the subject matter of 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. S 2.714(d). Id. at 4.

On March 10, 1986, the Presiding Officer issued a Memoran-dum and Order providing notice of the inforr.al proceeding and opportunity to become a party. 51 Fed. Reg. 8,920 (1986). The

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• w Order reiterated the pleading requirements that were set forth in t3e 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 of the application is deficient. Petition-ers muut also submit all data and material in their possession which supports or 11-lustrates each of the deficiencies com-plained of. Data and material from gener-ally available publications may be cited rather than furnished. Petitioners murt also state what relief they seek with respect to each of their complaints. A broad statement requesting denial or recision of the license or its amendment

, without stating why such extreme relief is appropriate will not satisfy the require-ment to state the relief sought.

Id (emphasis in original).

II. Legal Standards for Intervention The Commission's and Presiding Officer's Orders require that a petitioner " set forth with particularity" its interest and how that interest may be affected. Those orders also pro-vide that the standing of petitioners to intervene will be gov-erned by existing NRC precedent under 10 C.F.R. S 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

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Plant, Units 1 & 2), CLI-76-27, 4 N.R.C. 610, 613-14 (1976).

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. (Limorick 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 1/ Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Facility), ALAB-682, 16 N.R.C. 150, 154 (1982) (resi-dence within three miles of facility sufficient).

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Power Station), LBP-85-24, 22 N.R.C. 97, 99 (1985), aff'd on 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 Commis-sioner Ahearne:

[T]here is some difficulty using the con-cept of " geographical proximity." For power reactors, geographical 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 Shearne).

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 iden-tify 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 l

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Nuclear Power Station, Units 1 and 2), ALAB-536, 9 N.R.C. 402, 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 Lichting 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. S 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 citation, discussion, data, and documents or references, the petitioner should be denied party status.

III. The Petition of the City of Ashtabula Should Be Denied The City of Ashtabula does not have standing to partici-pate in this proceeding. It has no special status to intervene l

under 10 C.F.R. 5 2.714(c). Hence, it is in no different posi-tion from any other organization. To establish standing under 10 C.F.R. S 2.714(d), the city must either demonstrate injury in fact to itself or to persons it represents.

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b The City of Ashtabula has not demonstrated that it has any cognizable personal interest as an organization or that the city itself might suffer some injury. Any basis for its inter-vention must therefore be representational. Ashtabula, how-ever, is approximately 120 miles east of the Davis-Besse site.

I This distance is much too far to confer standing on any of Ashtabula's citizens. Thus Ashtabula does not have representa-tional standing.2/

Ashtabula's lack of standing would be no different if 10 C.F.R. 5 2.715(c) applied. 10 C.F.R. S 2.715(c) permits an

" interested" municipality to participate in a formal reactor licensing proceeding. If none of its citizens has a cognizable interest that might be affected, a municipality cannot be con-sidered "interected." Licensee knows of no instance in a reac-tor operating license proceeding where a municipality located l more than 50 miles from a site was permitted to participate under 10 C.F.R. S 2.715(c).

2/ When a petitioner fails to demonstrate standing as of right, a presiding officer may still allow intervention as a matter of discretior. 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 616-17. A peti-tioner, as the proponent of an order permitting discretionary intervention, has.the burden of persuasion. In the case at hand, the City of Ashtabula has made no such affirmative showing.

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Ashtabula's petition should also be denied for its failure to comply with the Presiding Officer's pleading instructions.

The petition contains no citation to any of Licensee's reports describing and evaluating the burial of very low level radioac-tive waste. It contains no detailed discussion of any defi-ciency.2! No data, materials, or references are provided to support Ashtabula's conclusory assertions. Furthermc.e, no re-lief is specified. The petition does not meet the requirements set forth in the March 10 Memorandum and Order.

3/ Licensee also wishes to point out that Ashtabula's third contention, alleging that Licensee is implicitly seeking "re-lease of the Davis-Besse site for unrestricted use for radioac-tive garbage disposal when the plant is decommissioned," is without merit. Ashtabula is misconstruing a statement in ti.e NRC Staff's environmental assessment, which pointed out that the level of radioactivity in the resin to be buried at Davis-Besse is so low that burial of the resin would not pre-vent unrestricted use of the site after decommissioning. See 50 Fed. Reg. 41,267 (1985). All this statement means is that thera will be no significant radiation levels. Licensee has not proposed operating a radioactive waste disposal site, and in any event could not do so'without first obtaining a license undcr 10 C.F.R. Part 61. Nor has it sought approval to decommiss!on the site.

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IV Conclusion For the reasons stated above, the petition of the City of Ashtabula should be denied. Licensee does not object to the

. petition being treated as a limited appearance statement.

Respectfully submitted, L -

f' Jay E. Silberg, P.C.

David R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE Counsel for The Toledo Edison Company et al.

Dated: April 23, 1986 l

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t UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION l

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 CITY OF ASHTABULA FOR LEAVE TO INTERVENE was mailed, first class mail, postage prepaid, to the attached service list, this 23nd day of April, 1986.

jL , D

}6 :D. Silberg i l

$ AW', PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N. W.

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

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s-i UNITED STATES OF AMERICA NUCLEAR REGULATGRY 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) )

I 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 Thomas J. Hassett, President Office of the Secretary City Council - Cir.y of Ashtabula U. S. Nuclear Regulatory Commission 4400 Main Avenue Washington, D. C. 20555 Ashtabula, Ohio 44004 i

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