ML19291B528
| ML19291B528 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 10/02/1972 |
| From: | Silberg J, Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 7911080559 | |
| Download: ML19291B528 (8) | |
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of
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METROPOLITAN EDISON COMPANY, ET AL )
Docket No. 50-289
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(Three Mile Island Nuclear Station,)
Unit 1)
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APPLICANTS' REPLY TO ADDENDUM TO
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PETITION FOR INTERVENTION 1.
On September 6, 1972, the Citizens for a Safe Environment and the Environmental Coalition for Nuclear Power (Petitioners) filed with the Commission an Addendum to Petition for Intervention.
Contrary to the requirements of the Commission's regulations, 10 CFR S 2.701(b), service was not made on Applicants or Applicants' counsel.
This failure to comply with the Rules of Practice occurred despite the fact that Applicants had specifically called this re-quirement to Petitioners' attention in Applicants' Reply to Petition for Intervention (p. 1) following Petiticners' similar failure to serve their original petitial on Appli-cants or Applicants' counsel.
Applicants, on learning of the existence of the Addendum on September 25, 1972, filed a Motion for Extension of Time to Answer with the Commission.
2.
The addendum was, of course, filed after the time fixed by the Commission for the receipt of petitions for leave to l'ntervene.
As set forth in Applicants' letter to 1583 166 7921080 S Q g
'O the Commission on August 4, 1972, Petitioners have not shown good cause justifying this untimely filing.
Applicants had suggested in their Reply to the Petition for Intervention that Petitioners be given until September 7, 1972, to file restated contentions, provided that such restated contentions meet the requirements of the present 10 CFR S 2.714 (a) effec-tive August 28, 1972.
This Petitioners have failed to do.
3.
Petitioners have now had two attempts in which to file a suitable petition for leave to intervene.
The com-bined effect of these filings does not meet the requirements of either the present or former 10 CFR S 2.714.
Having already taken "two bites of the apple," Petitioners should not be permitted to intervene for the reasons set forth below and in Applicants' Reply to Petition to Intervene.
I.
Standing 4.
In the Reply to the Petition for Intervention, Applicants noted that the Petition had not been signed by any-one on behalf of the Environmental Coalition on Nuclear Power
- and that the Petition failed to identify the organizations which comprised the Coalition.
The Addendum has cured neither of these defects, although the Addendum does refer to an
" attached" list of the Coalition's member organizations.
Un-fortunately the list was apparently not attached.
- Even this organization's name is in doubt.
The Petition re-ferred to.an " Environmental Coalition of Nuclear Power", p.
1, and an " Environmental Coalition on Nuclear Power", p.
2, while the Addendum speaks of an " Environmental Coalition for Nuclear Power".
1583 167 5.
Neither Petitioner has adequately identified the individual members of the petitioning groups whose interests may be affected, as required by Sierra Club v. Morton, 31 L.Ed.
2d 636 (1972).
Nor have Petitioners complied either with the Commission's Rules of Practice, S 2.714 (a), in effect on the date of the Petition, requiring Petitioners to specify their interests in reasonably specific Actail, or with the present Rulgs of Practice, S 2.714 (a), which require Petitioners to set forth "with particularity.
. the facts pertaining to
[the Petitioners'] interest."
Identification with particularity of the interests of Petitioners' individual members is essen-tial, among other reasons, in order to give effect to S 2.714 (f) of the present Rules of Practice, which requires that where "the petitioner's interest is limited to one or more of the issues involved in the proceeding, any order allowing interven-tion shall limit his participation accordingly."
II.
Contentions
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6.
Paragraph numbered 2 of the Addendum revises cer-tain of the contentions contained in the initial Petition.
Paragraphs numbered 41 through 55 add new contentions.
The new and revised contentions are equally open to the objections specified by Applicants in paragraphs 8-15 of Applicants' reply to the initial Petition.
Some seek to challenge the validity of Commission regulations, some seek to raise issues which were or could have been dealt with during the construction 1583 168 pernit proceedings, and others are lacking in reasonable speci-ficity.
If anything, these new and revised contentions are even vaguer and more lacking in specificity than the original ones.
None demonstrate that they have a basis in fact, sub-stance or responsible scientific opinion.
For example, revised contention (h) claims that " core spray nozzles are subject to bending which could occur through refueling operations", when in fact the facility does not have any core spray nozzles.
New contention 49 states that " applicant's discussion of heat dissipation to the water is incomplete" without any clue as to the information which is allegedly missing.
7.
Applicants have set forth the reasons why con-tentions such as those contained in the Petition and the Addendum should not be permitted to form the basis for an intervention.
As stated in paragraphs 13-15 of Applicants' Reply to Petition for Intervention:
"13.
This failure to show that there is some factual, scientific or technical basis for the contentions constitutes a challenge to the very function of the public hearing process at the operating license stage.
The Commission has made clear that the purpose of the public hearing at the operating license stage is not to perform a de novo review of the facility and the license application.
See Atomic Safety and Licensing Appeal Board Memorandum and Order, In the Matter of Wisconsin Electric Power dompany, Docket No. 50-301, August 18, 1971.
At the public hearing stage, intervenors are given the opportunity to present relevant information, not the opportunity to carry out a fishing expedition into the regulatory process.
As the Commis-sion ruled in its. Memorandum and Order 1583 169
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of March 30, 1972, In the Matter of Florida Power & Light Co., Docket Nos.
50-250, 50-251, contentions which are not based upon specific factual matters are not acceptable *
"14.
Yet, the direct result of the type of contentions which Petitioners present is to turn the regulatory process upside down.
Notwithstanding the AEC's statutory and regulatory scheme which entrusts the responsibility for de novo review to the AEC's Regulatory Staff and notwithstanding the Staff's ittailed, painstaking review of the license appli-cation and the facility, Petitioners would duplicate this function in the hearing itself by assuming the role of a surrogate Regulatory Staff.
"15.
It is not enough that a petition to intervene manages to frame broad al-legations which, if true, would be grounds for intervention.
It is essential that the Commission require such contentions to be specific as presently required by S 2.714 or, as required by the revised Rules of Practice, that a Petitioner pro-vide with particularity the basis for his contentions.
Any other policy simply invites petitions which do no more than collect a long list of unsupported con-tentions which ignore the information contained in the application and AEC staff evaluations and which offer no promise of additional relevant informa-tion or responsible technical opinion.
Such petitions serve merely to delay the hearing process and to expand the areas of controversy at the hearing to matters on which Petitioners can make no sub-stantive contribution.
To avoid this undesirable situation, the Commission is fully justified in requiring 'high threshold levels of allegation.'
See Gellhorn, 'Public Participation in Admin-istrative Proceedings,' 81 Yale L. J.
359, 373 n.
57 (1972). "
8.
Applicants requested in their reply to the initial petition that the Commission in referring the Petition to an
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atomic safety and licensing board also require Petitioners to file with the board, in accorda,nce with S 2.714 of the present Rules of Practice, restated contentions accompanied by supporting affidavits, stating the factual, scientific and' technical basis for each contention.
The AEC Staff in its reply to the initial Petition has opposed the procedures suggested by Applicants and has proposed instead that "appro-priate prehearing procedures, including one or more prehearing conferences" would be a more useful and expeditious means to deal properly with Petitioners' contentions.
The difficulty with the AEC Staff position, apart from its failure to sug-gest what the " appropriate prehearing procedures" might be, is that it ignores the essential need of atomic safety and licensing boards in this and other proceedings for guidance from the Commission on the fundamental role and responsibilities of persons seeking to intervene in licensing proceedings.
We do not see how, lacking such guidance, the Board can give to the prehearing procedures the " firm direction" contemplated by the AEC Staff reply.
9.
For the reasons stated above, Applicants believe that the Petition and Addendum should be denied.
Petitioners have had two attempts to submit a suitable basis for inter-vention and have twice failed.
Rejecting these inadequate filings does not, of course, mean that Petitioners' interests will not be represented in a public hearing.
The State of Pennsylvania has requested intervention pursuant to 10 CFR 1583 171
e S 2.714 (c) and Applicants have stated that they have no ob-jection to this participation.
The State has indicated an interest in pursuing many of the matters which appear to concern Petitioners.
Notwithstanding Applicants' request for denial, should the Commission decide otherwise, Appli-cants consider it essential that the Commission instruct the Board on the measure of discipline required of Petitioners at $his stage of the proceeding in formulating and providing substance to their contentions.
Applicants request that the Commission promptly act in this matter.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By A9w n
1 l
e g
F.
Trowbridge
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Jy Silberg COUNSEL FOR APPLICANTS Dated: October 2, 1972 1583 172 {l
UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of
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METROPOLITAN EDISON COMPANY, ET AL
)
Docket No. 50-289
)
(Three Mile Island Nuclear Station
)
Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of Applicants' Reply to
- Addendum to Petition for Intervention, dated October 2, 1972, have been served upon the following by deposit in the United States mail, postage prepaid, this 2nd day of October, 1972.
Mr. Frank W. Karas (21)
Joseph Gallo, Esq. (6)
Chief, Public Proceedings Staff Howard M. Wilchins, Esq.
Office of the Secretary Office of General Counsel U.
S. Atomic Energy Commission U.
S. Atomic Energy Commission Washington, D.C.
20545 Washington, D.C.
20545 Miss Mary V. Southard, Chairman (1)
Herbert C. Goldstein (1)
Citizens for a Safe Environment Attorney-at-Law P. O. Dox 405 133 State Street Harrisburg, Pa.
17108 Harrisburg, Pa.
17101 Douglas Baker (1)
Mr. Frank R. Clokey (1)
Environmental Coalition on Special Assistant Attorney Nuclear Power General 1919 Sandy Hill Road Room 219 Norristown, Pa.
19401 Towne House Apartments Harrisburg,'Pa.
17105 Lawrence Sager, Esq. (1) 45 High Street Pottstown, Pa.
19464 f\\
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4W Silberg r
y Dated: October 3, 1972 1583 173
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