ML20205N378

Response Opposing Save Our State from Nuclear Wastes, Consumers League of Ohio 860411 Petition for Leave to Intervene & Request for Hearing.Certificate of Svc Encl

ML20205N378
Person / Time
Site:	Davis Besse
Issue date:	04/28/1986
From:	Silberg J SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	NRC COMMISSION (OCM)
References
CON-#286-974 ML, TAC-60875, NUDOCS 8605020107
Download: ML20205N378 (12)

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00CMET 0 April 28, 1986 USNR

'86 my -1 N0 :05 UNITED STATES OF AMERICA NUCLEAR REGULATORY MMISSION., i U

Before the Administrative Judge In the Matter of )

)

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

)

(Davis-Besse Nuclear Power )

Station, Unit No. 1) )

LICENSEE'S RESPONSE OPPOSING THE PETITION OF SAVE OUR STATE FROM NUCLEAR WASTES, CONSUMER LEAGUE OF OHIO, ARNOLD GLEISSER, AND GENEVIEVE S. COOK FOR LEAVE TO INTERVENE The Toledo Edison Company et al. (" Licensee") hereby re-sponds to th, " Petition of Save Our State from Nuclear Wastes, Consumers League of Ohio, Arnold Gleisser, and Genevieve S.

Cook for Leave to Intervene on the Radioactive Sludge Disposal Issue and for Adjudication Hearing," which the petitioners filed with the Nuclear Regulatory Commission (NRC) on April 11, 1986. Licensee submits that the petition should be denied, but does not object to it being treated as a limited appearance statement.

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I. Introduction This proceeding involves the authorization which the Nuclear Regulatory Commission granted to Licenses to bury very low-level radioactive waste at the Davis-Besse site. The waste in question is resin from the Layis-Besse olant's secondary system demineralizer. Approval 6f Licensee's proposal was sought in accordance with 10 C.P.R. S 20.302(a) and IE In-formation 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 orna-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; (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

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petitioners to intervene will be governed by existing NRC prec- l 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 informal proceeding and 1 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 of the application is deficient. Petition-ers must also submit all data and material in their possession which supports or il-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 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).

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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-err.ed by existing NRC Drecedent under 10 C.F.R. S 2.714(d).

Under NRC precedent, contemporary concepts of judicial standiuq 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).

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 " arguably 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 Euclear

Pl&nt, Units 1 and 2), ALAB-413, 5 N.R.C. 1418, 1421 n.4 (1977); Philadelphia 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 shou 2d 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 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-siener 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 ooses a threat for i

a broader geographic area than most activi-l ties licensed under a materials license.

j 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 l

j most materials licenses.

, 1/ Armed Forces Radiobiology Research Institute (Cobalt-60 I

Storage Facility), ALAB-682, 16 N.R.C. 150, 154 (1982) (resi-dence within three miles of facility sufficient).

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Rockwell International (Energy Systems Group Soecial 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 to represent its members, as long as at least some of its members would be entitled to intervene in their own right. To estab-lish representational standing, an organization must identify by name and address at least one of its r embers who has the requisite interest and who wishes to be represented by the or-ganization. Virginia Electric & Power Co. (North Anna 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 cannot be inferred from the organization's charter), a specific repre-sentational authorization by that individual must be provided.

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. S 2.714. The requirement in this informal proceeding that a petitioner must identify, discuss, and sup-port 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

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that issue with citations, discussion, data, and documents or references, the petitioner should be denied party status.

III. The Petition of Save Our State from Nuclear Wastes, Consumers League of Ohio, Arnold Gleisser, and Genevieve S. Cook Should Be Denied Save Our State from Nuclear Wastes (SOS), the Consumers League of Ohio (CLO), Arnold Gleisser, and Genevieve S. Cook filed their petition jointly. Each of them, however, is re-quired to demonstrate standing. None of them has done so.

SOS identifies no property, financial, or other interest that might be affected, and does not allege the possibility any injury whatsoever to itself. SOS also provides no basis to support representational standing. The only member of SOS identified is Arnold Gleisser. Mr. Gleisser's interest, how-ever, is not identified, nor is there any discussion in the pe-tition of how that interest might be affected. Furthermore, the petition indicates that Arnold Gleisser resides in Lyndhurst (at the same address given for SOS). Lyndhurst is approximately 100 miles from the Davis-Besse site. This is far too great a distance to confer standing on an individual.

Thus, both SOS and Mr. Gleisser have failed to demonstrate standing.

Similarly, CLO identifies no cognizable interest, alleges no injury to itself, and provides no basis to support represen-tational standing. A Cleveland address is given for CLO, ap-proximately 70 miles from the Davis-Besse site. The petition does not identify any member of CLO who resides in proximity to the Davis-Besse site and who has authorized representation. In fact, the petition neither identifies nor is signed by any of-ficer of CLO, or any one else authorized to represent CLO. CLO too has clearly failed to demonstrate standing.

Finally, with respect to Genevieve S. Cook, the petition provides no discussion of her interest or how it might be affected. It alleges no injury to Ms. Cook. Moreover, the signature page of the petition indicates that Ms. Cook resides in Cleveland. Cleveland is approximately 70 miles from the Davis-Besse Plant. Thus, Ms. Cook clearly lacks standing to intervene.2/

The petition should also be denied for its failure to con-form to the Presiding Officer's pleading requirements. The 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 Ele _ctric 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. Further-more, a petitioner, as the proponent of an order permitting discretionary intervention, has the burden of persuasion. In the case at hand, SOS, Arnold Gleisser, CLO, and Genevieve S.

Cook have made no such affirmative showing.

Presiding Officer instructed petitioners to describe specifi-cally deficiencies in Licensee's application, to provide par-ticular citations, to provide detailed discussion of each such deficiency, to provide supporting data, material, and refer-ences, and to specify the relief requested as to each claim.

The petition of SOS, CLO, Arnold Gleisser and Genevieve Cook ignores the Presiding Officer's instructions. Not only are all of petitioners' allegations vague, but many of them bear no relation to the instant proceeding. For example, the first issue in the petition addresses the siting of the Davis-Besse plant -- an issue that was resolved in the con-struction permit proceeding 15 years ago and is far beyond the scope of this proceeding. Issues 2 and 3 are cryptic allusions to flooding, the precise significance of which is unexplained.

Issues 4, 5, 10, 14, and 15 attack inter alla the use of set-tling ponds at the Davis-Besse plant, which is part of plant operation already authorized. These issues are overly broad, addressing a matter not within the scope of the proceeding.

Issues 11 and 16 address other facilities and disposal sites and are irrelevant.

Furthermore, there is not one citation to Licensce's re-ports. Particular deficiencies are not identified. There is no detailed discussion, and no supporting data, materials, or references are provided. The petition's failure to conform to i

the Presiding Officer's clear instructions regarding pleadings is sufficient grounds by itself to deny the petition.

IV. Conclusion For the reasons stated above, the " Petition of Save Our State from Nuclear Wastes, Consumers League of Ohio, Arnold Gleisser, and Genevieve S. Cook for Leave to Intervene on the Radioactive Sludge Disposal Issue and for the Adjudication Hearing," dated April 11, 1986, should be denied. Licensee does not object to the petition being treated as a limited ap-pearance statement.

Respectfully submitted,

% / v J99 E./Silberg, P.C.

Day d 'R. Lewis Sh W, PITTMAN, POTT '& TROWBRIDGE Counsel for The Toledo Edison Company et al. '

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! Dated: April 28, 1986 '

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o 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 SAVE OUR STATE FROM NUCLEAR WASTES, CONSUMERS LEAGUE OF OHIO, ARNOLD GLEISSER AND GENEVIEVE S. COOK FOR LEAVE TO INTERVENE was mailed, first class mail, postage prepaid, to the attached service list, this 28th day of April, 1986.

, b, ' b] b4tsi Silberg Ja[E .

SHAW) PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N. W.

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

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 Commissio Washington, D. C. 20555 Washington, D. C. 20555 Docketing & Service Section Arnold Gleisser Office of the Secretary 5005 South Barton U. S. Nuclear Regulatory Commission Lyndhurst, Ohio 44124 Washington, D. C. 20555 Genevieve S. Cook 25296 Hall Drive Cleveland, Ohio 44145 l

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