ML20154L858

Responds to 860127 Request That Commission Convene Hearing Re Disposal of Low Level Radwaste at Facility.Intervention in Hearing May Be Requested by Further Filings Per Forthcoming Notice.Commission 860220 Order Encl

ML20154L858
Person / Time
Site:	Davis Besse
Issue date:	02/26/1986
From:	Palladino N NRC COMMISSION (OCM)
To:	Celeste R OHIO, STATE OF
Shared Package
ML20154L864	List: ML20154L858 ML20154L866
References
NUDOCS 8603130143
Download: ML20154L858 (1)

Text

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UNITED STATES

-2 8" n NUCLEAR REGULATORY COMMISSION f ,E W ASHINOTON, D. C. 20555 ,

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CHAIRMAN February 24, 1986 The Honorable Richard F. Celeste Governor, State of Ohio Columbus, Ohio 43266-0601

Dear Governor Celeste:

Your letter of January 27, 1986 requested that the Commission convene a hearing regarding the disposal of low-level radioative waste at the Davis-Besse nuclear power station. On February 20, 1986, the Commission issued an order that addresses the concerns expressed in your letter. That order refers various hearing requests concerning low-level waste disposal at Davis-Besse to an Administrative Judge for consideration in an informal adjudicatory proceeding. The order, a copy of which is attached, also directs that a notice be issued inviting interested persons desiring to intervene in the proceeding to file a petition with the NRC. Thereafter, the Administrative Judge is to consider the conce rns of those persons found to have standing and to have presented issues appropriate for litigation in the proceeding.

In the event that the State of Ohio wishes to prorticipate in this hearing, it can do so by making further filings in accordance with the forthcoming notice regarding intervention in the proceeding.

Sincerely, y ,

]p ,, q ,. j)cu % r Nunzio J. Palladino

Attachment:

As stated ,

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i B603130147 B60224 PDR COMMS NRCC CORRESPOPOENCE PDR

00(.ME IEO USNPC UNITED STATES OF AMERICA W FH 20 P4 52 NUCLEAR REGULATORY COPEISSION

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hiihu .. N'ENi' COMMISSIONERS: BRANO!

Nunzio J. Palladino, Chairman Thomas M. Roberts SEWtb f t.:i ~ ; w,,,

James K. Asselstine Frederick M. Bernthal Lando W. Zech, Jr.

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In the Matter of )

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TOLED0 EDISON COMPANY, _et _al_. ) Docket No. 50-346

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(Davis-Besse Nuclear Power )

Station, Unit No. 1) )

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ORDER . .

By letter dated July 14, 1983, as supplemented on July 30, 1984, and January 29, 1985, Toledo Edison Company (Toledo Edison) requested authorization under 10 CFR $ 20.302(a) to dispose of byproduct material on the site of its Davis-Besse Nuclear Power Station, Unit 1. The materials in question are radioactively contaminated resins from the plant's secondary system demineralizer. On October 9, 1985, the NRC staff published in the Federal Register an " Environmental Assessment and Finding of No Significant Impact" relating to Toledo Edison's request (50 Fed. Reg. 41265), and by letter dated October 15, 1985, approved the licensee's request for disposal authorization. Thereaf ter, in November 1985, various groups and individuals, including Save Our State From j%D ?

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2 Radioactive Waste (SOS), Toledo Coalition for Safe Energy (TCSE) and Susan A. Carter, the Western Reserve Alliance (WRA), and the Consuners League of Ohio (CLO), filed petitions for a hearing regarding the Toledo Edison disposal authorization request. Also, in early December 1985, the Corraission received petitions from City of Mentor, Ohio, and the Ohio Citizens for Responsible Energy (0CRE) asking that the agency recind its October 15, 1985 approval of Toledo Edison's disposal authorization request.

We have decided that, in the circumstances of this case, interested persons should be afforded a hearing under section 189a of the Atomic Energy Act, 42 U.S.C. 5 2239(a). In making an initial disposition of the pending hearing requests, we note that in our decision in Kerr-McGee <

Corp. (West Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232 (1982),

aff'd, City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983), the Cormiission indicated that there was no entitlement to a formal, trial-type hearing under either the Atomic Energy Act or NRC regulations with regard to materials licensing actions. Further, neither these particular hearing requests nor any other infomation now available to us, give us cause to exercise our discretion and grant a formal hearing under the "public interest" standard of 10 CFR 5% 2.104(a) and 2.105(a)(7) or to find due process concerns require that a formal hearing must be convened. Therefore, only an informal hearing will be instituted.

With regard to the conduct of the informal proceeding, we direct the Chairman of the Atomic Safety and Licensing Board Panel to designate a single member of that Panel to act as the presiding officer. In order to ensure that all interested persons are identified and heard on a

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timely basis, the presiding officer should arrange for publication in the Federal Register of a notice of opportunity for hearing that notes i

the pendency of the hearing requests regarding the Toledo Edison authorization application and invites all interested persons desiring to intervene in any hearing proceeding to be conducted to file a petition

' to intervene with the Docketing and Service Branch of the Office of the Secretary within thirty days of the publication of the notice. The 7 ,

intervention statement must set forth with particularity (1) the

- -interest of that person in the proceeding; (2) how that interest may be 5'

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 niture of the person's right under the Atcmic Energy Act to be made a party, (b) the nature and extent of the i 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 aspect or f

i aspects of the subject matter of the proceeding that the person seeks to have litigated. Statements by those seeking to intervene as parties will be deemed filed when personally delivered to the Office of the i Secretary or when deposited in the United States mail, properly j addressed and first-class postage prepaid.

The parties to the informal adjudication shall be applicant Toledo 4

j Edison; SOS, TCSE, Susan A. Carter, WRA, CLD, OCRE, and the City of 1

Mentor, if their petitions are found to be adequate; and any other l

person found to have filed a proper intervention statement. The NRC

staff also can appear as a party if it so desires.

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4 Determinations by the presiding officer on the standing of persons seeking to intervene is parties to the proceedirg will be governed by existing agency precedents regarding 10 CFR Q 2.714(d). See Rockwell-International Corp. (Energy Systems Group Special Nuclear Materials License No. SNM-21), ASLPB No. 83-488-01 ML, at 4-5 (Admin. Judge Oct.

7,1983). If the presiding officer. finds that the hearing petitions or any intervention petition should be denied _i_n, n toto on the basis of lack of standing or any other reason, such determination, which must be in writing, will become final agency action within thirty days unless the Commission, on its own, undertakes a review of that decision. No petition for review will be entertained by the Commission regarding the presiding officer's decision on such matters.

In carrying out his responsibility under this delegation, the presiding official also will have the authority to request and receive whatever written submissions and documents he deems necessary from any party en any schedule he deems proper. Such requests can include requirements that petitioners or intervening parties provide additional

'4 information relative to their standing to participate or further particularize the aspects of the subject matter of the proceeding they wish to litigate or that the parties answer specific questions, with supporting materials, that the presiding officer poses to them. In addition, at such time as niy be specified by the presiding officer, persons who do not desire to become parties or cannot fulfill the requirements for party status can file a statement indicating they wish to make a limited appearance regarding any issue in the proceedirg. The presiding officer will have the authority to fix such limitations and l

5 conditions as appropriate on the participation of those making limited appearances and they are not otherwise to participite in the proceeding.

In his discretion the presiding office also can entertain oral presentations from the parties or those making a Ifmited appearance.

Any oral comunications between the presiding officer and any party or any person making a limited appearance concerning any matter at issue in the proceeding will be conducted in the presence of the parties or memorialized in a written memorandum that is served on all parties and made a part of the docket file on the proceeding.

If, on the basis of the parties' presentations and other information that the adjudicator is entitled to rely upon as discussed below, the presiding officer believes that additional procedures are necessary to ensure the full development of the agency record or to resolve any material factuil issues that could not be resolved through the procedures set forth in this order, he should seek authority from the Commission to implement any additional procedures.

The presiding officer's decision, which is to be in writing, should be made on the basis of the written submissions of the parties, any oral presentations by the parties, and other technical or f actual information that is publicly available in the docket file. The presiding officer's decision will become final agency action thirty days after the dite of issuance unless the Comission, on its own motion, undertakes a review

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of the decision. No petition for review will be entertained by the Comission regarding the presiding officer's decision.

It is so ORDERED.

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For the Comission

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L L SAMUEL J.THILK Secretary of thelComission w , . , , . -../

Dated at Washington, D.C.

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this % ' day of February,1986.

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