ML20210K751

Response Opposing Petition of PE Dornbusch for Leave to Intervene.Suggests That Petition Be Treated as Limited Appearance Statement.Dornbusch Ltr Fails to Comply w/860310 Memorandum & Order.W/Certificate of Svc

ML20210K751
Person / Time
Site:	Davis Besse
Issue date:	04/25/1986
From:	Silberg J SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	NRC COMMISSION (OCM)
References
CON-#286-938 ML, TAC-60875, NUDOCS 8604290040
Download: ML20210K751 (8)

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SS April 25, 1986 UNITED STATES OF AMERICA

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b NUCLEAR REGULATORY COMMISSION 'I

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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 PAUL E. DORNBUSCH FOR LEAVE TO INTERVENE i

The Toledo Edison Company et al. (" Licensee") hereby re-sponds to a request by Mr. Paul E. Dornbusch to be made a party to this proceeding. Undated letter from P. Dornbusch to the Presiding Officer. In addition to asking that Licensee not be allowed to bury " rad waste" on the site, Mr. Dornbusch also asks that Licensee "stop production of any more rad waste until a facility is in operation to process this waste." Licensee submits that Mr. Dornbusch's request should be denied, but does not object to its being treated as a limited appearance state-ment.

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8604290040 86042536 DR ADOCK O l 33o 3 l

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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 second-ary system demineralizer. Approval of Licensee's proposal was 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; (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 precedents regarding 10 C.F.R. S 2.714(d). Id. at 4.'

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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 of the application is deficient. Petition-ers must 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 munt 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 i

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 regarding 10 C.F.R. S 2.714(d).

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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).

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. Mr. Dornbusch's Request Should Be Denied In his letter, Mr. Dornbusch states he resides in Port Clinton, which is about ten miles from the Davis-Besse site.

Based on this representation, Licensee does not object to Mr.

Dornbusch's standing.

Mr. Dornbusch's letter, however, fails to comply with the Presiding Officer's instructions. In the March 10, 1986 Memo-randum and Order, the Presiding Officer instructed petitioners to identify with particularity deficiencies in Licensee's re-ports describing and evaluating the disposal of very low level

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k radioactive waste at the Davis-Besse site, to provide specific citations, to provide detailed discussion of each deficiency, to provide supporting data, material, and references, and to state the specific relief requested on each claim. Mr.

Dornbusch has not identified any deficiency in Licensee's re-ports. He provides no citations. He provides no detailed dis-cussion, and he provides no supporting data, material, or ref-erences. Having failed to satisfy these requirements, Mr.

Dornbusch should be denied party status.

Licensee does not object to Mr. Dornbusch's letter being treated as a limited appearance statement. However, Mr.

Dornbusch's request that Licensee "stop production of any more rad waste until a facility is in operation to process this waste" is outside the scope of this proceeding as defined in the Commission's February 10 Order and the Presiding Officer's March 20 Memorandum and Order, and is therefore not appropriate for consideration in this forum. ,

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IV Conclusion For the reason stated above, Mr. Dornbusch's request to intervene should be denied.

Respectfully submitted, pG '

J(yfE, Silberg, P.C. I D Mid,R. Lewis J SHAW, PITTMAN, POTTS & TROWBRIDGE Counsel for The Toledo Edison Company et al.

Dated: April 25, 1986 I

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i 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 PAUL E. DORNBUSCH FOR LEAVE TO INTERVENE was mailed, first class mail, postage prepaid, to the attached service list, this 25th day of April, 1986.

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tr Jay . Gilberg SHA , 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 Consission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Docketing & Service Section Paul E. Dornbusch Office of the Secretary 615 Fremont Road U. S. Nuclear Regulatory Commission Apartment F Washington, D. C. 20555 Port Clinton, Ohio 43452 0

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