ML19305A024

Suppl Brief of Commonwealth Edison Co on Authorization Question.Members of NRDC & Citizens for a Better Environ Must Be Consulted Before They Are Authorized to Be Represented in Proceedings.Certificate of Svc Encl

ML19305A024
Person / Time
Site:	Dresden, Quad Cities, 05000000, 05000349
Issue date:	12/15/1978
From:	Steptoe P ISHAM, LINCOLN & BEALE
To:
References
NUDOCS 7901020024
Download: ML19305A024 (6)

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" e,& p/ '4 UNITED STATES OF AMERICA d'\S NUCLEAR REGULATORY COMMISSION .

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COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-237

) 50-249 Quad Cities Units 1 and 2 ) 50-254 and Dresden Units 2 and 3 ) 50-265 Amendments to Facility )

Operating License Nos. )

DPR-19, DPR-25, DPR-29 and )

DPR-30. )

SUPPLEMENTAL BRIEF OF COMMONWEALTH EDISON COMPANY ON AUTHORIZATION OUESTION .

On December 8, 1978, NRDC, CBE and Applicant entered into a stipulation in which, based on certain addi-tional information provided by the Petitioners, Applicant acquiesced in its unusually general identification of mem-bers provided by CBE and NRDC.* However, Applicant and Petitioners are unable to agree on whether NRDC and CBE are required to consult at least one of these affected members and obtain authority to represent him in this proceeding.

Applicant files this supplemental brief in an attempt to

• The NRC Staff did not join in this stipulation. In a conference call on December 8, 1978, counsel for the Staff stated that it does not agree that NRDC and CBE have ade-quately identified their affected members.

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focus the legal issues raised by this question.*

The purpose of the standing requirement is set forth in Sierra Club v. Morton, 405 U.S. 727 (1971), in which the Supreme Court said:

The requirement that a party seeking review must allege facts show-ing that he is himself adversely af-fected does not insulate executive action from judicial review, nor does l it prevent any public interests from being protected through judicial pro-cess. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or indiv-iduals who seek to do no more than vindicate their own value preferences through the judicial process. (405 U.S. at 740) (emphasis added)

See also Duke Power Company v. Carolina Environmental Study Group, U.S. , 57 L.ed. 595, 615-616 (1978). Peti-tioners' argument that they need not contact or consult the members whom they purport to represent in this proceeding l

• l The authorization issue is one of the issues which was '

briefed and is cwaiting decision by the Licensing Board in Duke Power Company (Amendment to Materials License SNM-1733 for Oconnee Nuclear Station Spent Fuel Transportation and Storage at McQuire Nuclear Station), Docket No. 70-2623. {

All parties have agreed that the briefs filed by NRDC, the NRC Staff and Duke Power Company may be used by the Board in this proceeding. In the December 8, 1978 conference call, Applicant requested permission to file this short supple-mental brief since it is noc a party in the Duke Power case.

NRDC requested leave to file a short response to Applicant's brief, if necessary. No party objected to this procedure.

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.. cute the heart out of the standing requirement imposed by Sierra Club. Petitioners would take the actual decision as to whether intervention shall be sought in a particular case out of the hands of its affected members and would place the decision instead in the hands of their corporate officers or trustees, who have no direct stake in the outcome and merely seek to vindicate their own value preferences.

The affected members have not implicitly author-ized Petitioners to represent them in this proceeding. Both NRDC and CBE conduct a broad spectrum of environmental litigation, by no means limited to nuclear issues. There-fore, the act of becoming a member of NRDC or CBE merely indicates generalized sympathy and hardly represents an unambiguous authorization of or approval of any specific future litigation. In fact, NRDC members do not even have the right to vote, and therefore have no control over organ-ization policy. Finally, neither NRDC nor CBE has provided the Board with any assurance that their members in the affected area even know that this case is pending, or that NRDC and CBE purport to represent them here. As a result neither organization has shown that its " members" are any-thing more than financial contributors.

In its Duke Power brief (at 3-4), NRDC points out that its Articles of Incorporation require that a Legal Committee comprised of attorneys supervise the conduct of  !

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all legal actions and the rendering of legal services NRDC provides. However, the purpose of the cited provision is obviously to ensure that despite the corporate form, the practice of law will be conducted by attorneys. In con-trast, whether or not a given lawsuit will be initiated has never been thought to constitute the practice of law, nor have such decisions ever been reserved to lawyers.

NRDC also suggests that since an applicant need not consult its shareholders before it files an application for a license amendment, NRDC should not have to consult its contributors before it seeks to intervene. (NRDC Duke Power brief, at 4-5). But this analogy is inapposite. In this proceeding, Applicant is pursuing its own corporate business interests. These corporatt interests are sufficient in  ;

i themselves to confer standing, without reference to the '

interests of Applicant's shareholders. In contrast, NRDC and CBE do not seriously allege that they will suffer any i l

corporate injury as a result of the proposed action. Their claim to standing stands or falls on their claim to repre-sent third persons who could themselves show standing.

Under such circumstances, the question of whether these i 1

contributors have authorized NRDC and CBE to represent them is crucial.

Applicant believes that requiring Petitioners each to attempt to find at least one affected member who will

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authorize what they want to do on that member's behalf is not burdensome, either in absolute terms or in comparision to the expenses usually incurred by all parties in NRC licensing proceedings.

Respectfully submitted, ISHAM, LINCOLN & BEALE By "'

m so .a' .a One of the Attgrneys'foK ~ '

Applicant December 15, 1978 ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 786-7500 a.

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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION IN THE MATTER OF )

)

COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-237

) 50-249 Quad Cities Units 1 and 2 ) 50-254 and Dresden Units 2 and 3 ) 50-265 Amendments to Facility )

Operating License Nos. )

DPR-19, DPR-25, DPR-29 and )

DPR-30. )

CERTIFICATE OF SERVICE I, John W. Rowe, hereby certify that copies of SUPPLEMENTAL BRIEF OF COMMONWEALTH EDISON COMPANY ON AUTHORIZATION QUESTION in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 15th day of December, 1978:

Secretary of the Commission Mr. Gary L. Milhollin U.S. Nuclear Regulatory 1815 Jefferson Street Commission Madison, Wisconsin 53711 Washington, DC 20555 Attn: Docketing and Service Mrs. Elizabeth B. Johnson Union Carbide Corporation Mr. Richard Goddard Nuclear Division Office of the Exectutive Legal P. O. Box X Director Oak Ridge, Tennessee 37830 U.S. Nuclear Regulatory Commission Dr. Quentin J. Stober Washington,- DC 20555 Fisheries Research Institute University of Washington Ms. Susan N. Sekuler Seattle, Washington 98195 Assistant Attorney General 188 West Randolph Street Mr. Anthony Roisman Suite 2315 Natural Resources Defense Chicago, Illinois 60601 Council Washing on DC 20 b

\ N i ', W 6 John N'. RowP t