ML20196H247
| ML20196H247 | |
| Person / Time | |
|---|---|
| Site: | Zion File:ZionSolutions icon.png |
| Issue date: | 12/01/1998 |
| From: | Jenkins D COMMONWEALTH EDISON CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#498-19773 LA, LBP-98-27, NUDOCS 9812090027 | |
| Download: ML20196H247 (17) | |
Text
. .. . --
DOCKEIED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSigN DEC -7 PS :54 BEFORE Tile COMMISSION OFRU cx c: ~.
RutB &
,- Mjp
^
ADJUDC'
)
In the Matter of ) Docket Nos. 50-295/304-LA COMMONWEALTH EDISON COMPANY )
)
(Zion Nuclear Power Station, )
Units 1 and 2) ) December 1,1998
)
4 COMMONWEALTH EDISON COMPANY'S BRIEF IN OPPOSITION TO APPEAL OF LIC_ENSING BOARD DECISION
- 1. INTRODUCTION i
On November 5,1998. the Atomic Safety and Licensing Board (" Board" or
" Licensing Board") issued a decision (LBP-98-27) that Edwin D Dienethal(" Petitioner")
lacked standing to inten ene in a license amendment proceeding relating to the Zion J
Nuclear Power Station. The Board determined that Petitioner lacked standing to intervene because he failed to allege any injury-in-fact that could plausibly result from the amendments at issue. Accordingly, the Board denied the intenention petition and terminated the proceeding. Petitioner Dienethat has appealed the Licensing Board's decision.
Petitioner's appeal lacks merit and should be denied on the following grounds:
A. The Licensing Board correctly determined that Petitioner's geographic proximity to Zion is not a sufficient basis for standing absent any injury-in-fact plausibly resulting from the license amendments; B. The changes to Radiation Protection stafling upon which Petitioner's appeal is based cannot plausibly cause any injury-in-fact; and 9812090027 981201 PDR g
ADOCK 05000295 PDR l603
C. Petitioner's appeal is based upon an argument that was not asserted as a basis for standing before the Licensing Board and, therefore, is not a proper basis for appeal of the Board's decision.
The amendments at issue simply conform the Zion license and Technical Specifications to the shut down and defueled condition of Zion Station. In this condition, the risk and number of potential accidents and events are substantially reduced. These amendments present no reasonable prospect of any harm to Petitioner and further litigation will result in no safety benefit to either Petitioner or the public. Accordingly, the Board's decision that Petitioner lacked standing is correct and should be aflirmed.
- 11. BACKGROUND Commonwealth Edison Company (" Comed") decided to permanently shut down the Zion Nuclear Power Station in January 1998. By letters dated Febmary 13 and March 9,1998, Comed certified to the Commission that operations at Zion had permanently ceased and that the nuclear fuel had been permanently removed from the Zion reactors.'
On March 30,1998, Comed applied for license amendments to make the Technical Specifications more consistent with the plant's shutdown and defueled condition These license amendments: (1) restore the Zion Custom Technical Specifications and the associated license conditions that had been replaced by the Improved Technical Specifications;2 (2) change cenain management titles and responsibilities to reflect the permanently shutdown condition of the plant; (3) allow the use of Certified Fuel Handlers in lieu of Licensed Operators (because the plant will no longer operate), (4) modify shift crew compositions (including Radiation Protection stafling) to reflect the units' non-5 Pursuant to 10 CFR f 50.82(a)(2), upon docketing of these certifications, Zion Station is no longer authorized to operate or retain fuel in the reactors.
2 The improved Technical Specifications (ITS) for Zion were issued in late 1997 when the plant was shutdown and were not required to be implemented until Unit 2 reached Operational Mode 4 (hot shutdown). Because the Zion units have been permanently shut down and defueled. Mode 4 has not and will not be entered. Accordingly, the ITS ucre not required to go into effect and the Custom Technical Specifications remained in place.
2
l -
l l operational status, and (5) eliminate verbiage that implies the units are operational. The l
l changes conform the license to the reality that Zion is shut down, that both reactors are defueled, and that the plant does not operate.
The NRC Staff determined that these license amendments involved no significant hazards and, therefore, could be implemented without a prior administrative hearing. See l 63 Fed. Reg. 25101,25105-25106, May 6,1998. Among other things, the Staff based its determination on the grounds that, with the plant permanently shut down and defueled, the spectrum of accidents and events that remained credible was significantly reduced and that the proposed amendments did not affect the probability or consequences of any accidents that remained credible. Id. at 25105. In particular, the Staff noted that there is a "significant reduction in site activities, site stafling, and risk to public health and safety that 1
occurs when an operational nuclear power plant transitions to a permanently shutdown j and defueled plant" and that stafling levels authorized by the amendments are " consistent with the quantity, complexity, and hazard level of the activities required for the storage and handling of nuclear fuel." /d. at 25106. The May 6,1998 FederalRegister notice ;
also invited interested persons to request a hearing on the license amendments and provided instructions on how to file a Petition to Inten>ene in the license amendment proceeding.
On June 4,1998, Mr. Dienethal submitted a Petition For Leave to Intervene in the license amendment proceeding. On July 1 and July 8,1998, Comed and the NRC Staff,
- respectively, filed motions to dismiss Mr. Dienethal's Petition on the ground that he had failed to demonstrate standing to intervene in the Zion license amendment proceeding. In particular, both Comed and the NRC Staff explained the Commission's standing requirements and noted that Petitioner had not described any injury-in-fact fairly traceable to the license amendments-On July 10,1998, the Board provided Petitioner with an opportunity to file an amended petition to intervene, including an opportunity to " address any shortcomings .
3 l
l
in his initial petition." Board Order dated July 10,1998 at 2. The Board also directed i Petitioner to file any proposed contentions. M Petitioner prepared an amended petition ,
to intervene (" Amended Petition") with the assistance of counsel and filed it, along with nineteen proposed contentions, on July 31,1998.
On July 24,1998, based upon the Staff s no significant hazards determination, the Commission issued the amendments to the Zion license, and directed that those amendments be implemented within 30 days. Comed accordingly proceeded to implement the license amendments, which have now been in place and used at Zion for approximately four months.
On August 18,1998, Comed and the NRC Staff each filed responses to the Amended Petition, noting that Petitioner still had not established a basis for standing because the amended petition did not specify any injuty-in-fact fairly traceable to the proposed license amendments?
On November 5,1998, the Licensing Board issued a decision (" Board Decision")
on Petitioner's Amended Petition to intervene in the Zion license amendment proceeding.
That decision determined that Petitioner lacked standing to intervene because " Petitioner's i
I 3
While a Board decision on standmg was pending, Petitioner and his counsel filed a separate petition directly with the Commission to " intervene" in the NRC Staffs no significant hazards determination with respect to the Zion licerte amendments. This separate petition also requested an immediate stay of implementation of the license amendments. See Petition to Intervene and initial Statement of Contentions and Request for Stay, filed with the Commission on August 18,1998. This petition, though protubited by 10 CFR y 50.58(b)(6) and duplicative of Petitioner's earlier petitions, resulted in i the establishment of another Licensing Board, additional filings by both Comed and the NRC Staff, and I two decisions by the Licensing Board, all occurnng over a period of two and one-half months.
Ultimately, that petition and request for stay were denied through Licensing Board decisions on September 2 and October 5,1998. Commonwealth Edison Company (Zion Nuclear Power Station, Units 1 and 2), ASLBP No. 98-750-06-LA, Atomic Safety and Licensing Board Order dated September l 2,1998, Commonwealth Edison Company (Zion Nuclear Power Station, Units I and 2), LBP-98-24,48 NRC _ (1998). Petitioners did not seek review of these decisions. The Commission declined resiew and the Licensing Board decision became a final agency action on November 16,1998. See Commonwealth Edison Company (Zion Nuclear Power Station, Units I and 2), Docket Nos. 50-295/304-LA-2, Memorandum for Board and Parties from John C. Hoyle, Secretary of the Commission (November 19. 1998). However, the Board's decision on Mr. Dienethal's amended petition to intervene in the Zion license amendment proceeding remained pending uhile Mr. Dienethal's second petition was l addressed (both Boards were comprised of the same mcmbers).
4 l
unsubstantiated allegations simply failed to demonstrate a plausible nexus between the challenged license amendments and Mr. Dienethal's asserted harm." Board Decision at
- 12. As noted by the Board,
[T]he type of accident that credibly could occur in permanently shut down and defueled reactors from these license amendments is anything but self evident. Nowhere does the Petitioner set forth a plausible or credible :
causal chain for any such accident or explain how the risk of such an accident is increased by the applicant's proposed amendments. [T]he Petitioner's pleadings are silent with respect to any plausible chain of causation for such radioactive contamination resulting from the challenged amendments.
Board Decision at 11-12.
On November 16,1998, Petitioner filed the instant appeal (" Petitioner's Appeal")
of the Board's decision. Petitioner now argues that the Zion license amendments permit a reduction in Radiation Protection statTmg that could somehow cause a " potential offsite release of radiation " Petitioner's Appeal at 4. Ilowever, neither the Amended Petition :
nor the cuirent appeal provide any description of how such releases are likely to occur given the greatly reduced scope of activities, levels of risk and overall plant staffing and at !
the shutdown and defueled Zion units Nor do they attempt to explain why continuous on-site radiation protection coverage is necessary at a facility that no longer operates.
In sum, despite repeated opportunities over six months oflitigation, Petitioner has not provided any plausible explanation of how these amendments will cause him harm. As described in more detail below, the Licensing Board was correct in determining that ;
Petitioner lacked standing to intervene. Petitioner's appeal provides no basis for reversing !
the Board's decision.
1 III. PETITIONERS HAVE PROVIDED NO BASIS FOR REVERSAL OF THE i LICENSING BOARD'S DECISION l To intervene in a license amendment proceeding, a petitioner must assert a specific l injury-in-fact that is fairly traceable to the license amendment. As demonstrated below, i S
4 Petitioner has not described any plausible chain of causation by which the Zion license amendments might cause him to sutTer injury. Instead, he relies on claims of geographical proximity to the station and unsupported speculation that radiation would somehow be released. Specifically, Petitioner ignores the fact that the Zion units are shutdown and defueled, and identifies no plausible mechanism by which releases of radiation or contamination might occur with the units in this condition. Furthermore, the argument in Petitioner's appeal that changes in Radiation Protection coverage provide a basis for standing was not argued before the Board and therefore is not a proper ground for appeal of the Board's decision. In sum, Petitioner utterly fails to demonstrate the requisite causation ofinjury-in-fact needed to confer standing to intervene in the Zion license amendment proceeding. Accordingly, the Licensing Board's decision must be upheld and Petitioner's appeal denied.
A. The Board Correctly Determined that Geographic Proximity, Absent Plausible Causation ofInjury, Does Not Demonstrate Standing Section 189a of the Atomic Energy Act, as amended, defmes the right of persons to intervene in Commission licensing proceedings. That section provides that "[i]n any proceeding under this Chapter, for the granting, suspending, revoking, or amending of any license... the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding." 42 USC Q 2239(a)(1)(A)(emphasis added). Similarly, the Commission's regulations provide that "any person whose interest may be affected by a proceeding and who desires to participate as a party shall file a written petition for leave to intervene." 10 CFR 2.714(a)(1). That petition must " set forth with particularity the interest of the petitioner in the proceeding, [and] how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to intervene." 10 CFR s 2.714(a)(2)(emphasis added).
6
In determining whether a petitioner has the requisite " interest" within the meaning of the Atomic Energy Act, the Commission applies contemporaneousjudicial concepts of standing. See, e.g., Yankee Atomic Electric Compan_y (Yankee Nuclear Power Station),
CLI-96-1,43 NRC 1,6 (1996); Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 NRC 47, 56 (1992), review denied sub nom.,
Environmental & Resources Conservation Organization vs NR_C,996 F.2d 1224 (9th Cir.
1993). As noted in Yankee Atomic, In order to establish standing to inten'ene in a proceeding, a petitioner must demonstrate that: (1) it has sufTered a distinct and palpable harm that constitutes iniury-in-fact within the zone of interest arguably protected by the governing statute; (2) the injury can fairly be traced to the challenged action; and (3) the injury is likely to be redressed by a favorable decision.
(43 NRC 1,6 (emphasis added), see also Lujan v. Defenders of Wildlife,504 U.S. 555, 560-61,112 S.Ct. 2130,2136 (1992), Dellums V NRC,863 F.2d 968,971 (D.C. Cir.
1988).
In particular, in a license amendment proceeding, unless there is obvious potential for offsite harm, there is no presumption of standing based upon geographic proximity of the petitioner's residence to the nuclear power station. Florida Power & Light Co. (St.
Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21,30 NRC 325,329-30 (1989);
Nonheast Nuclear Enercy Company (Millstone Nuclear Power Station, Unit No. 3), LBP-98-22,48 NRC _, slip op. at 9 (1998), aff'd CLI-98-20,48 NRC _, slip op. at 1 (1998).
A merely abstract, hypothetical injury is insuflicient to confer standing to intervene. Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1), LBP-91-38,34 NRC 229,252 (1991),
aff'dinpart on other grounds, CLI-92-11, 36 NRC 47 (1992); See also Luian, supra, 504 U.S. at 560-561,112 S.Ct. at 2136. Rather, a petitioner must show some specific injury-in-fact resulting from the license amendment. Ouivera Mining Co (Ambrosia Lake 7
Facility), CLI-98-11,48 N.R.C _, slip op. at 5 (1998), Florida Power & Light Co.,
supra, at 329-30, Nonheast Nuclear Energy Company, supra, slip op. at 9. Importantly, "the determination whether a petitioner's assened injury is fairly traceable to the proposed action is not dependent on whether the cause of the injury flows directly from the challenged action, but whether the chain of causation is olausible." Northeast Nuclear Energy Comoany, supra, slip op. at 10, (quoting Sequovah Fuels Coro (Gore, Oklahoma Site), CLI-94-12,40 NRC 64, 75 (1994)) (emphasis added).
Applying these principles to Petitioner's pleadings, the Licensing Board correctly determined that Petitioner lacked standing to intervene in the Zion license amendment proceeding. Petitioner presented his argument for standing at pages 5 10 of his Amended Petition. Nearly all of this discussion concerned the law of standing, Petitioner's proximity to Zion Station, and the activities that he, his wife and children engage in near the plant site. For example, Petitioner alleged that he, his wife and family reside, recreate, boat, fish, swim, and play water sports near the station Amended Petition at 7. The Board accepted these representations of geographical proximity as appropriate to suppon a " pleading of threatened injury-in-fact." Board Decision at 8.
But in a license amendment proceeding such as this one, an allegation ofinjury-in-I fact based on geographic proximity alone is not suflicient to establish standing. As noted !
by the Board, l 4
l The pleading of an injury-in-fact, however, is only one element of the requirements for establishing the Petitioner's standing . . Petitioner l must [also] show the causal link between his asserted harm and the proposed license amendments.
Id. (emphasis added). As discussed above, there must be a plausible chain of causation between the license amendments and Petitioner's alleged harm. Id. at 8-9, See also 8
l
l Northeast Nuclear Eneruv Comgany (Millstone Nuclear Power Station, Unit No. 3) CLI-89-20,48 NRC , slip op. at 1-2 (1998).
Petitioner failed to provide a plausible explanation of how the license amendments could cause him harm. On page 8 of his Amended Petition, Petitioner provided a list of alleged " potential injuries" that may occur if Zion " functions under the proposed amendments." These " potential injuries" were:
1 i
1.LOCA (Loss of Coolant Accident),2. radiological concerns, 3. unsafe levels of l radiation for employees at the plant and the general public,4. undetectable l radiation contamination by employees, 5. contamination of the local community ,
and the environment,6. increase risk of accident at Plant Zion, and 7. '
contamination of Lake Michigan.. . and other imminent risks . . due to the increased potential of failing to detect radiation in adequate time and the increase !
risk of the plant functioning unsafely and outside NRC regulations.
Amended Petition at 8 (a nearly identical recitation of these alleged harms appeared in an affidavit attached to the Amended Petition). Beyond the unsupported assertion that these l potential injuries might occur, Petitioner made no credible attempt to explain how they are traceable to the Zion license amendments
- As noted by the Board, Rather than explain the process by which the proposed license amendments could l cause him future negative health effects and diminish the value of his property, the Petitioner in his amended petition and accompanying aflidavit merely lists seven items that he claims increase his risk ofinjury should the amendments be )
adopted.. But the type of accident that could occur in permanently shutdown and defueled reactors from these license amendments is anything but self-evident.
Nowhere does Petitioner set forth a plausible or credible causal chain for any such accident or explain how the risk of such an accident is increased by the Applicant's I
' Indeed, several of these allegations appear nonsensical in light of the fact that Zion is no longer authorized to operate. For example, as noted by the Board, " loss of coolant accidents iLOCA] can only occur in operating reactors, not reactors that are permanently shutdown, defueled, and depressurized."
Board Decision at i1. Similarly, the unsupported allegations of" increase risk of accident at Plant Zion" and " increase risk of the plant functioning unsafely and outside NRC regulations" are inconsistent with the obvious reduction in both the risk and the types of accidents attendant to the j permanently defueled and non-operational status of the Zion reactors. Other asserted Imrms, such as i unspecified " radiological concems" and "other imminent risks" are so vague as to be vinually meaningless.
f 9
proposed amendments. Similarly, the Petitioner lists radiological concerns and various on-and-off site radioactive contamination as increasing his risk ofinjmy from these amendments. But the Petitioner's pleadings are silent with respect to any plausible chain of causation for such radioactive contamination resulting from l the challenged amendments.
i
- Board Decision at 11-12.
After considering the arguments and allegations made by Petitioner in his Amended Petition and attached aflidavit, the Board properly found that "Mr. Dienethal
! has failed to establish a plausible chain of causation between his alleged injury and the Applicant's proposed amendments." Board Decision at 9. Accordingly, the Board determined that Petitioner had not established a basis for standing. Board Decision at 12.
The Board's determination is entitled to substantial deference absent an error oflaw or an 1
L abuse of discretion. International Uranium (USA) Coro (White Mesa Uranium Mill, Alternate Feed Material), CLI-98-6,47 NRC 116,118 (1998), citing Georzia Institute of i Technology (Georgia Tech Research Reactor), CLI-95-12,42 NRC 111,116 (1995). As described above, the Board carefully considered the record before it, applied the correct legal standard, and made a sound and well-reasoned decision That decision should be l upheld.
B. Petitioner's Allegations Regarding Radiation Protection Coverage l Do Not Describe Any Plausible Causation for Injury The license amendments at issue in this case reflect the fact that the Zion Station is shut down, defueled, and no longer operates. In the plant's current configuration, all of the irradiated nuclear fuel at the site is stored in the spent fuel pool. Large portions of the i plant's operating systems are no longer in use and routine access to much of the plant is no longer necessary. Access to high radiation and contaminated areas of the plant has l been substantially reduced. The scope of activity and numbers of personnel at the site l
- have correspondingly decreased, resulting in a much-reduced potential for personnel l 1
! contamination or exposure to radiation. In this condition, "the spectrum of accidents and 10 i
l-
.- - .- ~ . - - - - - . - -- ---
S i
i
- events that remain credible is significantly reduced." May 6,1998 Federal Register Notice l
Announcing Proposed Zion License Amendments,63 Fed. Reg. 25101,25105.
l i On appeal, Petitioner attempts to rely on the fact that the Zion license amendments l r eliminate a requirement that a Radiation Protection technician be present on site during all shifts. Petitioner claims that this change will somehow result in releases of radioactive materials to the environment and that " continuous onsite presence" of a Radiation 1
Protection person is necessary.' Petitioner's Appeal at 4-5. Aside from the conclusory l I
I nature of this allegation, Petitioner again fails to provide any plausible basis for harm in light of the current shutdown and defueled status ofZion Station.
The requirement that each shift include a Radiation Protection technician was included in the Zion Custom Technical Specifications at a time when the Zion reactors were authorized and expected to operate. During operation, there is fuelin the reactor, the reactor and associated fluid systems are heated and pressurized, and there are a large number of activities and stafTrequired to operate and maintain the plant in an operational condition. Numerous evaluations, tests and surveillances must be performed on a regular basis to ensure compliance with the plant's Technical Specifications and to assess l l
activities which involve the potential for release of contaminants or occupational exposure l
to radioactive materials. In addition, were an operational event to occur, there might be a need for Radiation Protection personnel to be present to assist in response to that event.
Accordingly, a requirement for full-time Radiation Protection coverage can be appropriate for an operating plant.'
5 Petitioner claims to have made this same allegation in one of the proposed contentions (Contention 10) that he attached to his Amended Peution. Petitioner's Appeal at 4-5. However, Pentioner's arguments for standing in his Amended Petition (see pp. 5-10 of that Petition) did not mention Contention 10 and did not assert changes in Radiadon Protection staffmg as a basis for standing. See section III C below.
! It should be noted, however, that in connection with the approval of the Improved Technical l
Specifications (ITS) for Zion in 1997, the Commission previously approved on-site Radiation Protection
, coverage only "n hen fuel is in the reactor." See Letter to O D. Kingsley (Comed) from Clyde Y.
l Shiraki(NRC) dated December 19,1997, Attachment 2 at 5.0-3. The NRC StafTconcluded that thesc
- changes, u hich are consistent with improved Technical Specifications approved for other nuclear power plants, posed "no significant hazards." See Environmental Assessment,61 Fed. Reg. 6265,6267 11 l
l
However, these concerns are significantly reduced when a reactor is permanently shut down and defueled. The Commission's Radiation Protection requirements and licenses for other shutdown facilities recognize this difference. The Radiation Protection requirements contained in 10 CFR Part 20," Standards for Protection Against Radiation," l require that:
Each licensee shall develop, document, and implement a radiation protection program commensurate with the scope and extent oflicensed activities and sufficient to ensure compliance with the provisions of this part.
i 10 CFR Q 20.1101(emphasis added). Consistent with the reduced risks and scope of I activities at shut down facilities, licenses and technical specifications approved by the NRC Staff for other recently shut down commercial nuclear power plants do not require continuous on-site Radiation Protection coverage. See, e.g., Operating License NPF-1 for the Trojan Nuclear Plant, Docket No. 50-344 (Amendment 194, March 31,1995),
Operating License DPR-36 for the Maine Yankee Atomic Power Station, Docket No. 50-309 (Amendment 160, November 26,1997), Operating License DPR-61 for the Haddam Neck Plant, Docket No. 50-213 (Amendment 192, March 27,1998).
Funhermore, in addition to the Zion license amendments, Comed and Zion Station i remain bound to comply with the standards in Part 20 and its ALARA principles. The i
Zion Radiation Protection program continues to require that "a Radiation Protection Person be on site during handling ofirradiated fuel." See Comed's " Application for Amendment to Facility Operating Licenses....," Zion Station Units 1 and 2, Facility Operating Licenses DPR-39 and DPR-40, Docket Nos. 50-295 and 50-304, dated March 30,1998 at p.12 of Attachment A and at Attachment E. The Radiation Protection i
program also controls and authorizes work performed within the radiologically posted (February 16,1993 Notice of Issuance of Amendment,63 Fed. Reg. 273,274 (.lanuary 5,1998).
Because the Zion reactors are defueled, the current Zion license amendments make no change from the previously-approved ITS in this regard. Petitioner did not seek to intervene in the license amendment proceeding for the ITS.
12
% , , .-- - - - - m
i 1
areas (RPA). In sum, the Zion license amendments provide for a level of radiation l protection staffmg that is in accordance with Commission regulations, is appropriate to the nature and level of activities at the station, and is consistent with license requirements for other shutdown nuclear power stations.
Given Zion's shutdown and defueled status, there is no plausible reason to conclude that the elimination of round the clock Radiation Protection coverage is likely to cause any harm whatsoever. In essence, Petitioner's argument is that he will be harmed simply because Radiation Protection technicians are not present, even when there are no ongoing actisities with potential radiological consequences. This argument is grounded entirely upon speculation, is counter to the approach to Radiation Protection specified in Part 20, and ignores the reduced risks and limited scope of activities with the Zion units shut down and defueled. In short, this is not a plausible argument. Because Petitioner has failed to establish any plausible connection between the Zion license amendments and the harm he alleges, he lacks standing to intenene and his appeal must be denied.
C. Petitioner's Arguments Regarding Radiation Protection StafTmg Were Not Properly Raised Before the Licensing Board In a license amendment proceeding, a petitioner has the burden to establish a basis for intervention. See 10 CFR { 2.714,2.732 (1998), Babcock and Wilcox (Apollo, Pennsylvania Fuel Fabrication Facility), LBP-93-4,37 NRC 72,83-84 (1993). In this case, Petitioner was prc#ided two separate opportunities to demonstrate standing by asserting that he would suffer injury-in-fact plausibly caused by the Zion license amendments. However, as stated by the Licensing Board, Petitioner " list [ed] radiological concerns" and the potential for "on-and-off site radioactive contamination as increasing his risk ifinjury from these amendments" but was " silent with respect to any plausible chain of
, causation for such radioactive contamination resulting from the challenged amendments."
! 13 l
l l
~ i l
i LBP-98-27, slip op. at Il-12. In particular, Petitioner made no attempt to explain how these potential injuries could rasult from a shutdown and defueled facility. Id. at i1.
Contraty to the assertions in his brief on appeal, Petitioner did not argue that changes in Radiation Protection staffing were a basis for standing until the filing of his current appeal. Before the Board, Petitioner merely listed a series of" potential injuries" I 1
which were alleged to occur if" Plant Zion functions under the proposed amendments."
See Amended Petition at 8. Petitioner also proposed nineteen contentions, including one involving Radiation Protection " coverage" (Contention 10), and numerous other matters l l
not related to these license amendments. Petitioner is now attempting to construct a new i l
claim of standing and causation and attempting to incorporate the voluminous materials I that he filed below.'
Arguments not before the Licensing Board may not be considered on appeal.
Sequoyah Fuels Corcoration and General Atomic (Gore, Oklahoma Site Decontamination and Decommissioning Funding), CLI-97-13,46 NRC 195,221 (1997); Public Service i Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-924,30 NRC 331,358 (1989); Philadelphia Electric Comoany (Limerick Generating Station), ALAB-845,24 NRC 220,248 n. 29 (1986). After six months oflitigation before the Board, Petitioner should not now be permitted to revise his claims and present new arguments for standing on appeal. In any event, Petitioner's new arguments on appeal still fail to explain how the amendment could plausibly result in an offsite release of radiation (or other 1
' In his brief on appeal, Petitioner also generally refers to a variety of other matters, such as " quality l
assurance ("QA") breakdowns," " willful violations on the site," lack of" character and competence,"
"the integnty of the radiation protection department," and so forth, that he believes will somehow cause releases of radiation. Amended Petition at 5-16. Petitioner does not explain how these matters could potentially cause him harm in light of the shutdown and defueled status of Zion Station (and thus the reduced activities ongoing at the station). Moreover, the license amendment at issue has nothing to do
- with these matters. As noted by the Board, the Zion license amendments do not involve these matters of character and competence and such allegations are therefore " wholly outside the scope of the
, proceeding" and therefore cannot form a basis for standing. Board Decision at 12, fn.l. Finally, the proposed contentions consist of sensationalized and unsubstantiated assenions regarding the historical operation of Zion Station. They do not have any implication for the activities ongoing at the station today.
14 i
I i_
l l injury-in-fact) given the reduced spectrum of accidents from a shutdown and defueled reactor. See Board Decision at 11. The Board's decision must be aflirmed.
IV. CONCLUSION The Licensing Board's decision that Petitioner lacks standing to intervene in the Zion License Amendment proceeding is correct and should be upheld. Petitioner has not shown any injury-in-fact that is fairly traceable to the proposed license amendments.
These amendments simply reflect the non-operational, defueled, and shutdown status of l the Zion reactors and do not present any plausible potential for harm to Petitioner. In j additien, Petitioner's appeal is based upon a new argument not properly raised before the l
l Board. Further litigation of this matter will serve no public purpose but will only consume Comed and NRC resources with no prospect for any safety benefit. Accordingly,
- l. Petitioner's appeal should be denied and this proceeding dismissed.
i l
Respectfully Submitted, l
}
l David W. Jenkins, @sel Robert E. Helfrich, Sr. Counsel COMMONWEALTH EDISON COMPANY Law Department, Room 1535 125 S. Clark Street P.O. Box 767 Chicago,IL 60603
- j. (312) 394-8230 i
b 15 i
4 DOCKETED UNITED STATES OF AMERICA USNRC l NUCLEAR REGULATORY COMMISSION
! BEFORE THE COMMISSION DEC -7 P5 :54 OFnu. 7-Rvuf. y
) ADJUOn ' ; j;b -
l In the Matter of ) Docket Nos. 50-295/304'LA
- F COMMONWEALTH EDISON COMPANY )
)
(Zion Nuclear Power Station, )
Units 1 and 2) ) December 1,1998
) '
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing " Commonwealth Edison Company's Briefin Opposition to Appeal of Licensing Board Decision" was served via postage prepaid first-class mail (and facsimile to those persons indicated by an asterisk [*]) on this 1" day of December, 1998, on the following persons.
Shirley Ann Jackson Greta J. Dieus Chairman Commissioner Mail Stop 0-16 Cl Mail Stop 0-16 Cl U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Niles J. Diaz Jeffrey S. Merrifield Commissioner Commissioner Mail Stop 0-16 Cl Mail Stop 0-16 Cl l
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Edward McGafligan, Jr. Thomas S. Moore, Chairman Commissioner Administrative Judge l Mail.Stop 0-16 Cl Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop T-3 F23 Washington, D.C. 20555 U.S. Nuclear Regulatory Commission 1 l
Washington, D.C. 20555 i
f
l Dr. Frederick J. Shon Dr. Jerry R. Kline
! Administrative Judge Administrative Judge l Atomic Safety and Licensing Board' Atomic Safety and Licensing Board Panel i Mail Stop T-3 F23 Mail Stop T-3 F23 l U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission !
Washington, D.C. 20555 Washington, D.C. 20555 l l Sherwin E. Turk, Esq.
- Adjudicatory File (2 copies)
Robert M. Weisman, Esq. Atomic Safety and Licensing Board Panel Office of General Counsel U.S. Nuclear Regulatory Commission Mail Stop 0-15 B18 Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Fax No. 301-415-3725 l Office of Secretary (original & 2 copies)* Stephen M. Kohn, Esq.
ATTN: Rulemakings and Adjudications Staff Michael D. Kohn, Esq.
U.S. Nuclear Regulatory Commission David K. Colapinto, Esq.
l Washington, D.C. 20555 Kohn, Kohn, & Colapinto, P.C Fax No. 301-415-1672 3233 P Street, N.W.
Washington, D.C. 20007 l l Atomic Safety and Licensing Board Panel Office ofCommission Appellate l U.S. Nuclear Regulatory Commission Adjudication l Washington, D.C. 20555 U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 3
I BY:
l David Mnkins i Senior Counsel l COMMONWEALTH EDI OMPANY A
4 1
1
,