ML20203G193

Response Opposing G Zatroch 860408 Petition for Leave to Intervene.No Objection to Treating Ltr as Limited Appearance Statement.Petitioner Failed to Demonstrate Right of Standing.W/Certificate of Svc & Svc List

ML20203G193
Person / Time
Site:	Davis Besse
Issue date:	04/23/1986
From:	Silberg J SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-903 ML, TAC-60875, NUDOCS 8604280372
Download: ML20203G193 (9)

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DOLKETED NNRC UNITED STATES OF A R NUCLEAR REGULATORY COMMISSION

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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 GEORGE ZATROCH FOR LEAVE TO INTERVENE The Toledo Edison Company et al. (" Licensee") hereby re-sponds to the letter from George Zatroch to the NRC, dated April 8, 1986, petitioning for leave to intervene. Licensee submits that Mr. Zatroch's request should be denied. Licensee has no objection to Mr. Zatroch's letter being treated as a limited appearance statement.

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 8604280372 860423 PDR ADOCK 05000346 h(.2)

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waste in question is resin from the Davis-Besse plant's second-ary system demineralizer. Approval of Licensee's proposal was sought in ace

• dance 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 aporoval, 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 perticular reference to (a) the nature of the person's rignt 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 preceeding, and (c)'the possible effect of any order that may be entered in the proceeding on the person's interest and (~) 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 prec-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 opportunity to become a party. 51 fed. Req. 8,920 (1986). The r

Order reiteratad 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 must also state what relief they seek with respect to each of their complaints. A e 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-l ment to state the relief sought.

Id (emphasis in original).

II. Lecal Standards for Intervention i

The Commission's and Presiding Officer's Orders require that a petitioner " set forth with particularity" its interest 4

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 under 10 C.F.R. 5 2.714(d).

Under NRC precedentf contemporary concepts of judicial i 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 interest "arquably within the zone of interest protected by the statute." Id. at 613, citina 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 Nuclear Plant, Units 1 and 2), ALAB-413, 5 N.R.C. 1418, 1421 n.4 (1977); Thiladelchia 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 l'/ Armed Forces Radiobiology Research Institute (Cobalt-60 Storage Facility), ALAB-682, 16 N.R.C. 150, 154 (1982) (resi-dance within three miles of facility sufficient).

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 Comm!.s-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 safety interest from that proximity.

. . . Clearly a reactor poses a threat 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, 17 N.R.C. 1001, 1005 (1983) (additional views of Commissioner Ahearne).

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. 5 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. Zatroch's Request Should Be Denied Mr. Zatroch has not demonstrated his standing to intervene in this proceeding. He has not alleged any injury. He states that he resides ir. Shef field Lake. Sheffield Lake, however, is approximately fifty-three miles from the Davis-Besse site.

Residence this far away is insufficient to establish standing per se.

When a petitioner fails to demonstrate standing as of 4

right, a presiding officer may still allow intervention as a matter of discretion. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 N.R.C. 610, a

614-17 (1976). A petitioner, as the proponent of an order per-mitting discretionary intervention,.has the burden of persua-sion. In the case at hand, Mr. Zatroch has made no such affir-mative showing.

Mr. Zatroch has also failed to identify a single issue.

He has therefore not complied with the Presiding Officer's in-structions in the March 10, 1986 Memorandum and Order, which required petitioners to specify deficiencies in Licensee's ap-plication, to provide citation and discussion, and to provide supporting data, materials, or references.

r

i IV. Conclusion For the reasons stated above, Mr. Zatroch's request to in-tervene should be denied. Licensee has no objection to Mr.

Eatroch's letter being treated as a limited appearance state-ment.

Respectfully submitted, C>'

1 Jay E. Silberg, P.C.

David R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE Counsel for The Toledo Edison Company et al.

Dated: April 23, 1986 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 GEORGE ZATROCH FOR LEAVE TO INTERVENE was mailed, first class mail, postage pre-paid, to the attached service list, this 03nd day of April, 1986.

_ K lV f II. Silberg SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N. W.

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

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) )

SEPVICE LIST Helen F. Hoyt, Esquire Charles A. Barth, Esquire Administrative Judge Office of the Executive Legal t Atomic Safety and Licensing Board Director U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Docketing & Service Section George Zatroch Office of the Secretary 3595 East Erie Avenue U. S. Nuclear Regulatory Commission Sheffield Lake, Ohio 44054 Washington, D. C. 20555 1

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