ML19326A916

Answer of Toledo Edison Co & Cleveland Electric Illuminating Co to Petition of Coalition for Safe Nuclear Power.Leave to Intervene Should Be Denied.Certificate of Svc Encl

ML19326A916
Person / Time
Site:	Davis Besse
Issue date:	02/14/1973
From:	Charnoff G CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 8003050816
Download: ML19326A916 (7)

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4 UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION 9

4 In the Matter of )

. )

THE TOLEDO EDISON COMPANY )

AND THE CLEVELAND ELECTRIC ) Docket No. 50-346 ILLUMINATING COMPANY )

)

(Davis-Besse Nuclear Power )

Station) )

ANSWER OF THE TOLEDO EDISON CCMPANY AND THE CLEVELAND ELECTRIC ILLUMINATING COMPANY TO PETITION OF COALITION FOR SAFE NUCLEAR POWER

[ 1. On February 6, 1973, the Atomic Energy. Commission 1

(" Commission") received a letter from Evelyn Stebbins, on

behalf of the Coalition for Safe Nuclear Power (" Petitioner" or " Coalition"), which transmitted "one copy of . . . [ Peti-tioner's]. list of contentions with respect to the forthcoming Environmental Hearing on the Davis-Besse Nuclear Power Plant."

The Toledo Edison Company and the Cleveland Electric Illumina-ting Company (" Licensees") believe that this letter should be presumed to.be a petition for leave to intervene pursuant to 10 C.F.R. 52.714. For the reasons set forth below, however, Licensees believe that leave to intervene should be denied, and that Mrs. Stebbins should more appropriately be accorded

, _ permission to make a limited appearance.

2. As a petition for leave to intervene, the Coali-8008050 7/[

-tion's letter and accompanying-list of contentions fail to satisfy the-requirements of S2.714 of the Commission's Rules of Practice...First, the petition has.not been filed under oath or affirmation _ as required by- S2.714 (a) . Secondly, the petition has not been accompanied by a supporting affidavit identifying _ the specific aspects .of the proceeding as to which intervention is sought and setting forth with particularity the factsLpertaining to Petitioner's interest and the bases for Petitioner's contentions. In. sofar as the Coalition is no stranger,'to AEC proceedings, having participated in both the construction permit hearing for the Davis-Besse Nuclear i

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Power Station and.the hearing held pursuant to Section-E of j Appendix DLto 10 C.F.R. 50, these deficiencies are inexcusable i

and-are alone sufficient reason for denial of leave to inter-i i vene.

3. The most serious defect of the Coalition's I . petition isLits failure to set forth with particularity the bases for the contentions raised. Petitioner's contentions Lare merely~ unsupported allegations of the broadest possible

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kind with no showing of a basis in fact, substance or in i responsible scientific or technical opinion. Vague, unsup-f ported-contentions.are at complete variance with the intent

! of the' Commission's restructured Rules of Practice.

4. In this regard, the Licensing Board ruling on this petition should take note of the Coalition's failure in prior AEC and judicial proceedings concerning the Davis-Besse facility to substantiate the allegations and contentions which they raised. A construction permit for the Davis-Besse Nuclear Power Station was issued to the Toledo Edison Company and the Cleveland Electric Illuminating Company on March 24, 1971. The Coalition sought review in the United States Court of Appeals for the District of Columbia of the Commission's order authorizing the issuance of the construction permit, claiming that the Commission had " refused to allow consider-ation at the [ Construction] Permit hearings of non-radiological environmental effects of the Davis-Besse Nuclear Power Plant."

Petition for Review, Coalition for Safe Nuclear Power v.

AEC, No. 71-1396, (D.C. Cir. May 21, 1971). Notwithstanding the Coalition's initial claim that its interests were in presenting evidence on non-radiological effects of plant operation, it declined to present any written testimony or any witnesses dealing with this cues tion at the Appendix D, Section E hearing specificelly convened to receive s'uch evidence.*

This hearing was convened pursuant to the Commission's Memoranda and Orders of June 5, 1972 and June 29, 1972, In the Matter of Toledo Edison Corpany and the Cleveland Electric Illumina-tina Company, (Davls-Besse Nuclear Ecwer Station) , Docnet oo. du a46, and was held on July 7-8, 1972, at Brookpark, Ohio.

See Initial Decision, In the Matter of the Toledo Edison Company and the Cleveland Electric Illuminating Company (Davis-Besse Nuclear Power Station) , Docket No. 50-346, July 9, 1972, p. 5.

Furthermore, the Coalition explicitly stipulated that it was not interested in cross-examining the testimony presented by 3

the AEC Regulatory Staff and by the licensees on non-radiologi-cal matters. This stipulation, made during a prehearing con-ference of counsel, is reflected in the transcript of that t

hearing on pages 2802, 2803, 2809, and 2830 and also in the admission into the record without cross-examination of a large volume of written testimony on non-radiological environmental effects of the plant. Tr. 2832-2857.

5. Against this background we see that the Coali-tion is again seeking to participate in a proceeding concerning non-radiological environmental effects of operation of the Davis-Besse facility. Again, it appears-likely that the Coalition's participation would result in no additional relevant information or responsible scientific and technical opinion.

The Coalition's petition amounts to no more than a long list of vague, unsupported contentions, some of which are not even rele-vant to the subject matter cf this proceeding. Allowing the Coalition to participate in this hearing on the basis of such

.a petition would serve merely to burden the hearing procesr, by

expanding the areas of controversy at the' hearing to matters on _which the petitioner will make no substantive contribution.*

6. Many of Petitioner's contentions seek to raise

, issues which are not'with the scope of the Notice of Hearing i for this proceeding. The Notice provides for a hearing to rev4.ew environmental' considerations pursuant to the provisions of Section B of Appendix D to 10 C.F.R. 50. 38 Fed. Reg. 904 (1973). Many cf Petitioner's contentions, however, concern radiological health and safety issues which have already been re-solved at the construction permit hearing for the Davis-Besse facility. For exanple, Petitioner's contentions in paragraph 6, concerning siting considerations, would seek to reopen a matter i

, which was raised and resolved at the construction permit hearing.

i See Initial Decision, In the Matter of the Toledo Edison Comnany and the' Cleveland Electric Illuminating Company, (Davis-Besse 1

Nuclear _ Power S tation) , Docket No. 50-346, March 23, 1971,

• Parenthetically, we call attention to a letter on file in _the Public Document room from Jerome S. Kalur, counsel for the Coalition,te L. Manning Muntzing, Director of Regulation, dated July.

20, 19.72, in which Mr. Kalur says that "

It is the Coalition's inten-tion to supply written comments to the [AEC's] draft [ environmental]

statement within thirty days of its issuance in order to adequately supply'the Commission with their views . . . . "

The Draft Environ-mental Statement has been available for over 2 1/2 months. The

! Coalition has yet to submit the comments it promised.

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paragraphs 11-15. The same is true of Petitioner's contentions

-in-paragraphs 8 and 10- (ECCS) , paragraph 15 (quality assurance) ,

paragraphs 16-18-(emergency plans), paragraph

24 (flooding),

and most of Petitioner's contentions in paragraphs 26-27 (radio-logical health and safety) .

7.

t In paragraphs 7 and 9-13, Petitioner takes. issue with the Draf t Environmental Statement's consideration of the environmental risks associated with postulated accidents. In 4

the Annex toLAppendix D to 10 C.F.R. 50, the AEC has set forth'certain required assumptions to be.made in the dis-cussion of accidents in Environmental Reports and Environmental Statements. 36 Fed.~ Reg. 22851.(1971). The Draft. Environ-mental Statement's discussion of accidents is in accord with

!this Annex. For1 example, Class 9 accidents have not been discussed because, as the Annex provides, the probability of

< such accidents is so small that'their environmental risk is extremely low.:

CONCLUSION

8. For;the above reasons, the Toledo Edison Company v -

and the Cleveland Electric Illuminating Company respectfully request that leave to intervene be denied to the Coalition for Safe Nuclear Power.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE

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Gerald Charnoff Counsel for the Toledo Edison Company and the Cleveland Electric Illuminating Company Dated: February 14, 1973

UNITED STATES OF AMERICA ATOMIC ENERGY CO'JIISSION In the Matter of )

)

THE TOLEDO EDISON COMPANY )

AND THE CLEVELAND ELECTRIC ) Docket No. 50-346 ILLUMINATING COMPANY )

)

(Davis-Besse Nuclear Power )

Station) )

CERTIFICATE'OF SERVICE I hereby certify that co ies of " Answer of the Toledo Edison Company and the Cleveland El ric Illuminating Company to Petition of Coalition for Safe Nuclear Power" were served upon the follcwing, by deposit in the United States mail, postage prepaid, this 14th day of February, 1973:

Mr. Frank Karas, Chief ( 21) Office of General Counsel (6)

Public Proceedings Branch U.S. Atomic Energy Ccmmission Office of the Secretary Washington, D. C. 20545 U.S. Atomic Energy Commission Washington, D. C. 20545 Mrs. Evelyn S tebbins , Chairman (1)

Atomic Safety and Licensing (1) Coalition for Safe Nuclear Power Board Panel 312 Park Bldg., 140 Public Square U.S. Atomic Energy Commission Cleveland, Ohio 44114 Washington, D. C. 20545 3

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By

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Gerald Charnoff Dated: February 14, 1973 l

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