ML20205N324

Response Opposing Petition of Western Reserve Alliance for Leave to Intervene in Proceeding Re Low Level Radwaste Burial.Petition Should Be Treated as Limited Appearance Statement.Certificate of Svc Encl

ML20205N324
Person / Time
Site:	Davis Besse
Issue date:	04/28/1986
From:	Silberg J SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-975 ML, TAC-60875, NUDOCS 8605020091
Download: ML20205N324 (10)

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DOCXETED USNRC April 28, 1986

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- r UNITEh.. ,/S,TATES'OF AM' ERICA NUCLEAR REGUg TORY' COMMISSION 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 WESTERN RESERVE ALLIANCE FOR LEAVE TO INTERVENE The Toledo Edison Company et al (" Licensee") hereby re-sponds to Western Reserve Alliance's ("WRA") request for leave to intervene, submitted by letter dated November 10, 1985, from Donald L. Schlemmer to the Nuclear Regulatory Commission (NRC).

Licensee submits that the request abould be. denied, but does not object to it being treated as a limited appearance state-ment.

8605020091 860428 PDR ADOCK 05000346 G PDR

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i I. Introduction This proceeding involves the authorization which the NRC granted to 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 secondary 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. Donald Schlemmer's November 10, 1985 letter on behalf of the WRA was one of these requests. On February 20, 1986, the Commission instituted an informal pro-ceeding in response to these requests. Commission order (February 20, 1986). The Commission instructed the Presiding Officer to invite "all interested persons desiring to intervene

. . . to file a petition to intervene. . . . " Id. at 3. 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 i

e aspect or aspects of the subject matter of the proceeding that the person seeks to have litigated.

Id. The Commission further stated that the standing of peti-tieners to intervene will be governed by existing NRC prece-dents under 10 C.F.R. 5 2.714(d). Id. at 4. Finally, the Com-mission stated that WRA would be a party to the proceeding "if

[its] petition [is] found to be adequate." Id. at 3.

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 Memorandum reiterated the pleading requirements that were set forth in the Commission's February 20, 1986 Order, and further provided:

. . . [P]etitioners are to describe specifically any deficiencies in the apoli-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). The Presiding Officer directed all persons who wished to become a party, including WRA, to file this information. 51 Fed. Reg. at 8,921.

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 orecedent under 10 C.F.R. S 2.714(d).

Under NRC pracedent, 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).

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 intere.=t "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 i

i close proximity to t'ne plant. Virginia Electric and Power Co.

l (North Anna Power Station, Units 1 and 21, ALAB-522, 9 N.R.C.

! 54, 56 (1979).

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l In cases involving applications for a permit to construct i

or a license to operate a commercial nuclear reactor, residence within50milesofthesiteisgenerallysuhficienttoestab-lish standing. Tennessee Valley Authority (Watts Bar Nuclear l

Plant, Units 1 and 2), ALAB-413, 5 N.R.C. 1418, 1421 n.4 l

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(1977); Philadelohic 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 should 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-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 cafety intercc1 from that proximity.

. . . Clearly a reactc1 Ucant 4 t? seat 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, 1,7 N.R.C. 1001, 1005 (1983) (additional views of Commissioner Ahearne).

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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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 niembers who has the requisite interest and who wishes to be represented by the ora-ga.nization. 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 ie.g. where it cannot be inferred from the orqanization'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 1sast one odmissible contention in order to be granted party status. 1-9 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 i

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

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i III. Western Reserve Elliance's Request Should be Donfed WRA has elected to ionore the Presiding Officer's unequiv- l ocal instruction that "WRA . . . shall file a petition to par-ticipate as described in the [ March 10] memorandum." Further-more, WRA's prior letter (Nov. 10, 1985) is clearly no substitute. It does not provide the detailed information "shich the Presiding Officer required.

Most importantly, WRA's November 10, 1985 letter does not demonstrate that WRA has standing to intervene. WRA has elleged no injury to its91f as an organization. WRA has also alleged no facts demonstrating representational standing. It has identified no member with the requisite interest and no proof that such member has authorized WRA to represent him or herc The two addresses WRA gives are in Cleveland (which is approximately 70 miles from the Davis-Besse site) and Washington, D.C. (which is approximately 400 miles from the site).

When a petitioner fails to demonstrate standing as of right, a presiding officer may still allow intervention as a matter of df5cretion. 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

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petitioner, as the proponent of an order permitting discretion-ary intervention, has the burden of persuasion. In the case at hand, Western Reserve Alliance has made no such affirmative showing.

IV. Conclusion For the reasons stated above, Western Reserve Alliance's request to intervene should be denied. Licensee does not ob-ject to the submittal being treated as a limited appearance statement.

Respectfully submitted,

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'AL% L) L' Jay . S ilber4, P.C. "

Day R.fLewis SHAW, PJTTMAN, POTTS & TROWBRIDGE Counsel for The Toledo Edison Company et al.

Dated: April 28, 1986

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n 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 WESTERN RESERVE ALLIANCE FOR LEAVE TO INTERVENE was mailed, first class mail,.

postage prepaid, to the attached service list, this 28th day of April, 1986.

s. !G r Ja f. Silberg NAWfPITTMAN, POTTS & TROWBRIDGE i 1800 M Street, N. W.

! Washington, D. C. 20036 l (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 Commission U. S. Nuclear Regulatory Commissicn Washington, D. C. 20555 Washington, D. C. 20555 Docketing & Service Section Western Reserve Alliance Office of the Secretary c/o Donald L. Schlemmer U. S. Nuclear Regulatory Commission 1616 P Street, N. W.

Washington, D. C. 20555 Suite 160 Washington, D. C. 20036 l

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