ML19326A940

Motion to Amend Memorandum & Order & Notice of Hearing on Suspension of Const Activity at Facility.Aec Should Grant Motion.Certificate of Svc & 720201 News Article Encl

ML19326A940
Person / Time
Site:	Davis Besse
Issue date:	04/21/1972
From:	Charnoff G CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	US ATOMIC ENERGY COMMISSION (AEC)
Shared Package
ML19326A938	List: ML19326A936 ML19326A940
References
NUDOCS 8003050845
Download: ML19326A940 (7)

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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Energy Commission In the-Matter of THE TOLEDO EDISON COMPANY and Docket No.'50-346 THE CLEVELAND ELECTRIC ILLUMINATING COMPANY (Davis-Besse Nuclear Power Station)

MOTION TO AMEND MEMORANDUM AND ORDER AND NOTICE OF HEARING ON SUSPENSION OF CONSTRUCTION ACTIVITY AT DAVIS-BESSE NUCLEAR POWER STATION

1. The Toledo Edison Company and The Cleveland Elec-tric Illuminating Company (Permittees) hereby move that the Atomic Energy Commission promptly amend the Memorandum and Order and Notice of Hearing on Suspension of Construction Ac-tivity at Davis-Besse Nuclear Power Station, issued on April 12, 1972 (37 Fed. Reg. 7644, April 18,1972), to require the Coali-tion for Safe Nuclear Power (Coalition) and Living in a Finer Environment (LIFE) to provide facts demonstrating that Coali-tion and LIFE are in existence, that the groups and/or indi-viduals which Coalition purports to represent ;,:.ve authorized cuch representation, ',3d that Coalition a.; A I7 ': have themselves suffered an injury, and to particularize chose catters which they seek _to controvert in this hearing. Prompt dects. ion D

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on this motion is required to accommodate the expedited hearing schedule directed in the April 12, 1972 Notice of Hearing under which the Licensing Board has ordered the commencement of the hearing on May 2, 1972. ,

2. On April 7, 1972, the U. S. Court of Appeals for the District of Columbia Circuit rendered its decision in Coa _11.

tion for Safe Nuclear Power v. USAEC, No. 71-1396. The Court remanded the record of the proceeding to the Commission with instructions to consider, after hearings, whether (and the de-gree to which) additional irretrievable commitment of resources by Permittees during the NEPA review period might affect the out-come of the final NEPA review process. Although the Court's decision was silent as to the participation of Coalition and LIFE in the hearing on remand, the Commission in its Memorandum and Order and Notice of Hearing admitted Coalition and LIFE as parties actwithstanding the absence of any request by Coali- l tion and LIFE to participate as parties in the proceeding. 4 l

.3 'The Commission's decision to name Coalition and LIFE as parties in this proceeding was apparently made without any inquiry into the continued existence of these groups. In fact, recent newspaper accounts indicate some reason to ques-tion their continued existence. For instance, a February.1, 1972 article in the Bowling Green State University newspaper, 1

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attached as Exhibit A hereto, stated that several students were attempting "to reactivate the environmental group [ LIFE] in which

' interest seemed to die out last spring'." These students were attempting "'to get something started again'." Obviously, an organization which has ceased to exist cannot be a party to an administrative proceeding.

4. The Commission should also require a showing that Coalition is authorized to speak for those which it claims to represent. The initial and amended Petitions for Intervention.

filed on November 18 and December 7, 1970, stated

" Petitioner is a non-profit association of persons, corporations, groups and associations formed partially for the purpose of this intervention (in the construction permit proceeding for the Davis-Besse facility] . . . ."

The Petition then listed a number of organizations and individuals, many of which were dropped following an order by the Atomic Safety and Licensing Board in the construction permit proceeding that the Coalition submit authorizing affidavits from each member.

Tr. 33, November 23, 1970. In view of Coalition's statement that it was formed to intervene in the now completed construc-tion permit proceeding and the changing membership of this "non-profit association of persons, corporations, groups and associations," the record of this proceeding would be inadequate without statements of authorizations from the Coalition's members.

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-4 5 Coalition and LIFE should also be required to set forth the facts demonstrating an injury sufficient to justify their participation in this proceeding. On April 19, 1972, the U. S. Jupreme Court handed down its decision in Sierra Club v. Morton, No. 70-34. This landmark case, now the law of the land, establishes the principle that "' interest in a problem' no matter how longstanding the interest and no matter how qualified the organization is On evaluating the problem" is not sufficient to give standing. Slip op. at 12. Instead the Court ruled "that the party seeking review must have himself suffered an injury" and "that a party seeking review must allege facts showing that he is himself adversely affected . . . ."

Slip op. at 11, 12-13 Coalition and LIFE, if they exist and are properly authorized to represent those which they claim to represent, should therefore be required to submit facts showing how they are injured and that they are not at most

" organizations or individuals who seek to do no more than vindicate their own value preferences . . . ." Slip op at 13

6. The Commission has specifically recognized that orderly proceedings require a particularization by intervenors of the matters they seek to controvert. See Commission Memorandum and" Order, March 30, 1972, In the Matter of Florida Power & Light C o,. (Turkey Point Units Nos. 3 & 4), Docket Nos. 50-250, 50-251.

If the expedited procedure required by the Court's remand is

to be effectuated without prejudice to any party, Coalition and LIFE should be required to promptly particularize the matters they seek to controvert setting forth the factual basis for their contentions.

7 For the reasons stated above, the Commission should amend its Memorandum and Order and Notice of Hearing to require a factual demonstration that Coalition and LIFE are in exis-tence, that there is adequate authcrity to represent their purported membership, that they have actually suffered an injury, and a particularization of the matters they seek to controvert in the forthcoming proceeding.

Respectfully submitted, b

Gerald Charnoff Jay E. Silberg Counsel for The Toledo Edison Company and The Cleveland Electric Illumina-ting Company Dated: April 21, 1972 l 1

UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Energy Commission In the Matter of THE TOLEDO EDISON COMPANY and Docket No. 50-346 THE CLEVELAND ELECTRIC ILLUMINATING COMPANY (Davis-Besse Nuclear Power Station)

CERTIFICATE OF SERVICE I hereby certify that copies of " Motion to Amend Memorandum and Order and Notice of Hearing on Suspension of Construction Activity at Davis-Besse Nuclear Power Station" were served upon the following, by deposit in the U. S. mail, postage prepaid, this 21st day of April,1972.

Jerome Garfinkel, Esq., Chairman Secretary (20)

Atomic Safety and Licensing Board U. S. Atomic Energy Commission U. S. Atomic Energy Commission Washington, D. C. 20545 Washington, D. C. 20545 Attn: Chief, Public Proceedings Branch Dr. John R. Lyman Department of Environmental Martin Malsch, Esq. (6)

Sciences Office of General Counsel The University of North Carolina U. S. Atomic Energy Commission Chapel Hill,. North Carolina 27514 Washington, D. C. 20545 Dr. Emmeth A. Luebke Jerome S. Kalur, Esq.

610 Foxen Drive Jamison, Ulrich, Burkhalter Santa Barbara, California 93105 & Hesser 1425 National City Bank Building Cleveland, Ohio 44114 nb Gerald Charnoff A

~ CLIPPING SERVICE SHECT h bIDff N THE Tal.EDO EDISON COMPANY PUBLIC RELATIONS GROUP

) 8129 31 se r. 4,

• OATE OF Punt,aCAft0*.s 10LECO 10Lt"* Feb. 1, 1972 staal ..... BOSU News Thursday meeting sk, :d 2E LIFE (Living In a Finer

?O he re.CCiiVCied somebody's taking care of attempts to block the LIFE will begin discussing Environment), a once active ecology, but nobody is." construction of the Davis- plans at this week's meeting g

student environmental Ms. Baker said she and Besse' nuclear power plant for an Earth Week later on group, will hold a several other concerned near Port Clinton. this year. she said.

reorganizational meeting students are trying to Ms. Baker said officers .

. this Thursday at 7:30 p.m. in reaetiyate the MS. BAKER said the will be elected at the l 220 Math. Science. environmental action goup meeting Thursday night is meeting which will also ,

According to Terry Baker. in which "ir.terest seemed to an attempt to "get feature a film and talk by I die out last spring." something started again. members of I?URT (I?elp Us pophomore iA&S1 the i meeting is belng held LIFE was founded in April "I want people to become Recycle Trash), a Bowling because " basically what i 1970 and sponsored an Eco- more concerned with what Green ecology group. l'URT ,

want to do is get some Week that same year. Last they can do in the sponsors trash pick-ups cnce  !

. interest. Everybody thinks year, LIFE was active in. community," said Ms. a month for recycling.

'- Baker. She suggested an on-campus trash recycling This Saturday is one of the program as a possible pick.up dates. Ms. Baker project for LIFE. said anyone who wants to

. She said she would like to participate should take the see such a project begin with trash to one of the 1?URT recycling in the dormitories. pick-up stations or contact "There's a lot on a small I?URT to pick it up.

scale that can be done." she Ms. -Baker emphasized said. LIFE's need for any and all She said on-campus interested persons. "We recycling was only a need everybody who wants suggested prnject. Ms. to help." she said.

Baker explained she didn't want to see the group dominated by one concern.

but added the project would give the group a common goal.

According to Ms. Baker, all projects will be determined by the group's interes.t. "I don't want to eliminate large scale projects."

PRESENTLY, LIFE has ,

its office in 4t5 Student Services Bldg., but Ms.

Baker said it is rarely staffed. Establishment of I regular office hours might j be one of LIFE's goals.

she said.

Ms. Baker also mentioned the possibility of developing a'n ecological information file in the LIFE offices.