ML19331B272
| ML19331B272 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 05/22/1972 |
| From: | Lowenstein R, Restrick J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007280869 | |
| Download: ML19331B272 (14) | |
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o UNIT 3D STATES OF A: ERICA ATOMIC ENERGY COMMISSION :
In the Matter of CONSUMERS POWER COMPANY Docket No. 50-329 Docket No. 50-330 !
(MIDIAND PIAIC, Units 1 and 2)
APPLICANT'S M01' ION TO DISMISS MAPLETm INTERVENORS' II."fERVENTION OR IN THE ALTERNATIVE i TO PRECLUDE THEIR FURTHER PARTICIPATION ~
IN THE ENVIR0!D4 ENTAL HEARDiG I. Mapleton Participation to Date On November 17, 1970, five days after the deadline for inter-vention set forth in the Notice of Hearing, Mapleton Intervenors filed their petition to intervene. The Board in its Order of December 8, 1970 granted Mapleton Intervenors' intervention and ordered them to file a statement of their legal issues by December 11, 1970 and a pre-liminary list of witnesses and scope of their testimony by December 15, 1970. Mapleton Intervenors defaulted on both of these obligations.
At the January 21, 1971 conference, .Mapleton Intervenors were ordered 3
to provide their specific contentions within 20 days. (Tr. 51.6) The Board's Order of March 3, 1971 ordered Mapleton Intervenors to respond to Applicant's interrogatories by April 15, 1971 and to file their di-rect evidence by May 1, 1971. Mapleton Intervenors failed to comply with the order of the January 21 conference or the March 3,1971 Order.
At the May 1 conference, Mapleton Intervenors admitted their default eutil pesmitneil to filo n uLut.euunnt of facLuni nnil inws1 contmit.1onn nn voll no the nrunca of their expert witncuoco within two vocks. (Tr.1210-19) m 8007280 Nii ,
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Mapleton Intervenors failed to meet this deadline but did furnish a statement of contentions on June 8,1971 in response to the Board's Order of May 18, 1971 requiring such filing by June 7,1971. The Board at the June 24, 1971 hearing infomed Mapletcx1 Intervenors that their contentions were insufficiently specific and ordered further s pecificaticn. (Tr.2295-2298) At the hearing of July 7,1971, the Board again found it necessary to inquire of Mapleton Intervenors sten they would specify their contentions. (Tr. 2690) On July 8, 1971, following a further filing of Mapleton Intervenors, the Board indi-cated that it did not find the further filing much of an improvement over previous filings. (Tr. 2951) Following this, the Mapleton_ Inter-venors did in fact present two witnesses on meteorology.
Following conclusion of the radiological health and safety portion of the hearing, the Board in its Order of August 26, 1971 or-dered Mapleton Intervenors to file their ra==ining radiological testi-mony by September 15,1971, motions for discovery concerning issues under National Environmental Policy Act by September 30, 1971 and a preliminary statement of their views on environmental questions.
Mapleton Intervenors did not comply with the Board's Order and instead filed an objection to the Order on September 14, 1971. In its Order of December 22, 1971, pursuant to discussions at the November 23, 1971 conference, the Board ordered Mapleton Intervenors to file their con-tentions, positions and motions for discovery on Applicant's Supple-mental Environmental Report before December 3 1 , 157/1 , to file their contentions, positions and requests for discovery on the Staff's Draft 6
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3 l Detailed Statement on or before February 4, lW2, then to file their supplementary contentions, positions and requests for discovery based on agency comments by February 28, 1972 and to file with respect to the final statement their contentions, positions and requests .for dis-covery by April 5, 1972. Mapleton Intervenors filed contentions, dated December 29, 1971, on Applicant's Supplemental Environmental Report and contentions, dated February 4,1972, on the Staff's Draft Statement. In its Order of March 27, 1972, the Board found that al-though many of the contentions filed by Mapleton Intervenors were re-lated to environmental issues they "are generally va6ue and conclusionary and are very much in need of additional specification." Mapleton Inter-venors have failed to provide any meaningful additional specification of their contentions.
Mapleton Intervenors, aside from their five interrogatories asked during the radiological health and safety portion of the proceeding,
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have filed no motions for discovery of Applicant. The Board in its Order of March 27,1W2 found:
"As a general rule, there would seem to be little purpose to be served by traditional pre-hea"ing discovery et this time. Applicant has filed its Environmental Report, its Supplemental Env1ronmental Report, and responses to various questions and contentions. The Staff has filed its Final Statement with comments of various agencies. By and large, opposing intervenors know, or should know, Applicant's 'cese' and the basis of the Staff position. Opposing intervenors have not, with minor exceptions, paid any c.tten-tion to the Board's order that a good faith ef-fort be made to make discovery requests as the environmental reports were filed. For the Board to allow, as Sa6 1nav now requests, discovery to begin 14 days after the entry of this orier would be to permit intervenors' intransigence to accom-plish what their arguments did not.
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n "In the circumstances, the Board vill not permit the process of discovery to delay the pro-ceeding. On the other hand, written detailed questions would undoQ tedly be useful in further l refining the issues to be contested by intervenors and ansvers to these questions may save hearing time. Accordingly, intervenors may serve and file detailed, specific questions and requests for documents within fourteen days following the date of this order. It should be clearly under-stood that the preparation of such requests is not to delay the filings provided for elsewhere in thia order, and that such requests tear a heavier burden of showing ' good cause' than vould have been the case a few months ago. Notwith-standing that burden, the parties to stcm the requests are made shall exert their best efforts to comply with reasonable requests."
Mapleton Intervenors filed no request for documentu within the refer-enced ll+-day period, although Applicant furnished them with a detailed list of documents relied on in preparation of the Supplemental Environ-mental Report almost a week in advance of that date. Subsequently, by letter dated April 20, 1972, Mapleton Intervenors', with no show of cause as required by applicable rules and regulations, requested all of the docu:sents on the list. Applicent has voluntarily furnished almost all of such documents to Mapleton Intervenors.
In its Order of March 27, 1972, the Board further ordered:
". . . that (ex::ept as othenise directed below) on or before April 30, 1972, opposing intervenors shall serve and file the written evidence in sup-port of their contentions, and in addition a writ-ten statement, of those aspects of the Applicant's ASER and the Staff's Final Statement as to which they intend to cross-eynmine. In order to focus the issues as precisely as possible, the specifi-cation of areas of cross-examination should, where feasible, be in the form of written questions capable of factual answer."
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Mapleton Intervenors at the conference of April 28 stated that they had no direct testimony except for that already filed in the fom of affi-davits. On April 17, 1972, intervenors filed en additional list of contentions largely dealing with radiological issues and corresponding On to the infor=ation contained in their previously filed affidavits.
May 1, 1972 the Mapleton Intervenors filed a list of areas of cross-examination, all of which vere vague end general, none of stich vere in the form ordered by the Board oz. March 27, 1972 and most of which were either unrelated to the Mapleton Ir.tervenors' contentions, in-volved radiological health and safety matters or involved subject mat-ters previously ruled out by the Board's Order of March 27, 1972. See Applicant's motions with respect to Mapleton Intervenors' " Areas to be Covered in the Midland Hearing" dated May !+,17(2.
Three days of hearing, beginning May 17, 1972, have been held on environmental issues. In contravention of the Board's Order of March 27, 1972, most of the cross-exa=1 nation conducted by Mapleton Intervenors has been discovery and in =any cases discovery of facts already in their possession. Additionally, they indicated that they had in their possession information that should have teen introduced as part of their direct case pursuant to the Bard Order of March 27, 1972 (e.g., Dr. Holeceb's list of birds at the site) .
Mapleton Intervenors have continually failed to detail their specifications, disregarding both the rules and regulations of the Atomic Energy Comission and numerous Board orders, have refused to conduct discovery in order to detemine if they have any contentions
u and have refused to file their direct testimony. The entire record of the Mapleton Intervenors shows a callous disregard to orders of the Board, regulations of the Comission and proper conduct of an adjudi-catory proceeding.
II. Mapleton Intervenors, as a result of their conduct to date, should be dismissed from the proceeding for failure to comply with Atomic Energy Comission regulations and Board orders regarding inter-vention.
The rules and regulations of the Atcmic Energy Comissicn pro-vide that petitions to intervene shall " set forth . . . the contentions of the petiticner in reasonably specific detail." Atomic Safety and Licensing Boards have denied petitions to intervene that contained con-tentions equally or less vague than those of Mapleton Intervenors.
The Comission in its Order of March 1,1971, In the Matter _
of Comonvealth Edison Company (Dresden Nuclear Power Station Unit 3),
Docket No. 50-249, pp. 34, refused to permit an intervention based upon generalized contentions.
"While ve have serious reservations as to whether [ petitioner's] very general statements of identity, residence and concern meet the re-quirement of our Rules for a statement as to how a petitioner's interest may be affected by Com-mission action, our main area of difficulty is with petitioner's contentions here. The petition sets forth and elaborates on five conten+yions, which we have sumarized in the margin.M Our readind of this submission, however, leads us to agree with the staff that none of the petitioner's contentions deal in ' reasonably specific detail' with matters which are the subject of this pro-cceding; and contentions 1 and 4 relate to matters
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7 outside the scope of the proceeding. In view thereof, the petition does not meet the require-ments of 10 CFR $2 714 and must be denied."
y' These contentions, in simary fom, are as follows:
"(1) that inadequate publicity concernin6 previous hearings prevented adequate protec-tion to the ' health and welfare of my fellow citizens'; (2) that the counties adjacent to Dresden Unit 3 are or vill be major sources of food and animal feed for the Chica6o mar-ket and other parts of the country and 'the public which vill purchase the meat and food products from these counties is entitled to an environment which does not contaminate the food before they receive it'; (3) that the applicant is controlled by alien interests, which is prohibited under the Atcmic Energy Act; (4) that there is a 'seeming appearance of collusion . . . between the AEC, the Connonwealth Edison Ccapany, and the Business-men for the Public Interest, Inc. ' vith re-spect to the use of electrical power 'as a weapon of control over the people'; and (5) that there has been insufficient study of the site and construction of Dresden Unit 3."
[ footnote in original]
While the contentions which Mapleton Intervenors have sulxnitted may be more numerous than those which the Commission dismissed in Dresden, they are certainly no more specific. Mapleton Intervenors have not abided by the Board's numerous orders to specify their contentions Nid their contentions should therefore be dismissed.
The Ccannission in its Memorandum and Order dated May 6,1971, In the Matter of Wisconsin Electric Power Ccmpany and Wisconsin Michigan Power Company !. Point Beach Nuclear Plant, Unit 2), Docket No. 50-301, permitted intervention but stated that since intervenors' contentions
" range from the fairly general to the reasonably specific, ve believe that the appropriate means for their further particularization is through the effective application of our prehearing e . ...c. -
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procedures, as suggested by the staff. A cardinal prehearing objective of the presiding Atomic Safety and Licensing Board vill be to establish, on as timely a basis as possible, a clear and particularized identification of those matter:
related to the issues in this proceeding which are in controversy. As a first step in this pre-hearing process, ve expect the Boarci to obtain from petitioners a detailed specification of the matters which they seek to have considered in the ensuing hearing."
Upon intervenors' repeated refusal to provide any meaningful specifica, tion of their contentions, the Atomic Safety and Licensing Board, after stating that:
"the Board has been frustrated in its attempt to elicit from the Intervenors the detailed speci-fications which the Board vs.s directed by the Commission to obtain."
struck all of intervenors' contentions except for two. Memorandum and Order, dated June 11, 1971. This course of action was upheld by the Atcmic Safety and Licensing Appeal Board in its Memorandum and Order, dated August 18, 1971.
Another hearing board emphasized the importance of detailed specification of contentions:
"The notice of Hearing requires that the Inter-venors provide certain detailed specifications as a first step in the prehearing process. This Order reiterates that requirement as fundamental to the role of a full party in a controverted pro-ceeding and provides that it te served in a time frame that vill pemit it to contribute effectively to the purpose of the prehearing conference."
n (Memorandum and Order, dated August 4,1971, ,I_n, the Matter of Boston Edison Company (F11 grim Nu-clear Power Station), Docket No. 50-293)
By no stretch of the imagination have Mapleton Intervenors filed specific environmental contentions. As found by the Board in g O "
9 its Order of March 27, 1972, the contentions of Mapleton Intervenors "are generally vague and conclusionary and are very much in need of additions 1 specification." The Co:::nission indicated in its ruling of July 12, 1971, In the Matter of Boston Edison Cenpany (Pilgrim Nuclear Power Station) Docket No. 50-293, that specification of con-tertions was " central to the proper focus and orderly conduct of the prehearing process, including the scope of appropriate discovery, and of the later hearing itself." The Board in the Midland proceeding has already gone one step further; it has encouraged intervenors to ecm-mence discovery over a nine-month period without requiring anything more than " vague and conclusionary" contentions. Intervenors, having had the opportunity for discovery, which opportunity they failed to utilize, should certainly now be in a position to specify their con-tentions in great detail so that there can be " proper focus and or-derly conduct" of the hearing. Intervenors' failure to provide such specification can only indicate that they really have no such conten-tions. As demonstrated above, in several proceedings interventions have not been permitted or contentions have been stricken as a result i of " vague and conclusionary" contentions. These were proceedings stere the action was taken by the Board at or near the beginning of the pro-ceedin6 How much more ,just and proper is dismissal in the present case, where Mapleton Intervenors have had almost nine months to refine their contentions and develop a basis for them.
In addition to the failure of intervenors to specify con- j i
tentions is their continued disregard for orders of the Board. Mapleton l N**
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.ntervenors have continued to virtually ignore Board orders and mlings ,
or make shas performance. There comes a point when the Board must ,
take strong action against such tactics. Khen such tactics are coupled with a failure of the party to present infour.ation to justify inter-vention the proper remedy would appear to be dismissal from the pro-ceeding. In NLRB v Fulton Bag & Cotton Mills,180 F2d 68, 71 (10 Cir 1950), the court in dicta recognized the right of an agency to prevent abuse of its process:
"And if it [the Board] detemines with reasonable foundation that its processes vould be abused by filing a ccmplaint and going forward with the proceeding, it may decline to entertain and pro-ceed upon the charge. In like mnmer, if it deter-mines later that its processes are being abused, it may decline to proceed further."
Mapleton Intervenors have made it clear that they,have no contentions justifying intervention. Additionally, their conduct and statements at the hearings of May 17,18 and 19,1972 demonstrate that after many months of this proceeding they are still unfamiliar with the documentary evidence filed by the Applicant and Staff and that their participation in the hearing vill consist of a long, drawn out discovery. Extensive opportunity for discovery by intervenors was provided over the last nine months. Their refusal to undertake proper discovery should confer upon them no right to conduct discovery at the hearing.
In an uncontested proceeding, or with regard to uncontested matters in a contested proceeding the Board is not expected to make a do novo review of the application. In an uncentested proceeding the function of the Board is to " test the sufficiency of the inforna-tion contained in the application and the record of the proceeding
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and the adequacy of the staff's review to support the proposals of the Director of Regulation." As stated in 10 CFR Part 2, Appendix A, Sec-tionIII(g):
" Boards are neither requ' red nor expected to dupli-cate the review already perfomed by the regula-tory staff and the ACRS and they are authorized to rely upon the testhnony of the regulatory staff and the applicant, and the conclusions of the ACRS, which have not been controverted by any party.
The role of the board is to decide whether the application and the record of the proceeding con-tain sufficient infomation, and the review of the application by the Comission's regulatory staff has been adequate, to support the findings proposed to be made by the Director of Regulation
- md the issuance of the construction pemit pro-posed by the Director of Rc6ulation. The board vill not conduct a de novo evaluation of the ap-plication, but rather, vill test the sufficiency of the information contained in the application and the record of the proceeding and the adequacy of the staff's review to support the proposals of the Director of Regulation. In doing so, the board is expected to be mindful of the fact that it is the applicant, not the regulatory staff, who is the proponent of the construction pemit."
in a contested proceeding the function of the Board is described in SectionVI(d):
"(d) Participation by board members:
"In contested proceedings, the board will deter-mine controverted matters as well as decide whether the findings required by the Act and the Comission's regulations should be made. Thus, in such proceed-ings, the board vill detemine the matters in con-troversy and may be called unon to make technical judc:::ents of its own on thoce matters. As to mat-ters which are not in controversy, boards are nei-ther requireti nor exiccLeil to .luplienLe the review nI creuly 3.+e fucivil ley Lho resp:I nLaeey n1. NIT nrol 1.l o ,
ACic; nail they nee voilluscLzed tu rely upon Llo. Len-timony of Lho verstlnt.ory atalT nnd t.lc appLlennt, and the coltelu:;1ona of the ACE, which are not controverted by any party. Thun , the bonrd need not evalunto thone muttern al renity evn,1;ostret by 1.h :LulT uh l e:h su e nn'. in e:ontroverny . '
la Consequently, if as is here clearly the case, opposition intervenors do not allege facts such as vould create a contested issue on any matter, there is no basis for a hearing d_c, e novo on that matter.
More than the repeated assertion of doubt or curiosity is required of an intervenor to create a contested issue; for this purpose, facts which contravene the applicant's position should be asserted.
The standard for evaluation of the environmental aspects of the Plant is no different than that for the radiological health and safety aspects. The reason for review of the environmental informa-tion in an Atomic Safety and Licensing Board hearing is because the National Environmental Policy Act provides that the agency's environ-mental statement shall accompany the application through the review process. As such, it must be reviewed on the same basis as the ap-plication. The Commission has recogni::ed this and provided in Appen-dix D to 10 CFR Part 50 that:
"In a proceeding for the issuance of a construc-tion pemit for a production or utilienticn fa-cility described in paragraph 1, . . ., the Atcmic Safety and Licensing Board vill (a) detemine whether the requirements of section 102(2)(C) and (D) of the National Enviromental Policy Act and this appendix have been complied with in the pro-cceding, (b) decide any matters in controvery among the parties, (c) detemine, in uncontested proceedings, whether the NEPA review conducted by the Cor::nission's regulatory staff has'been adequate, and (d) independently consider the final balance among conflicting factors contained in the record of the proceeding for the permit or li-cense with a view to determining the appropriate action to be taken."
In the absence of any matters in controversy, the Board should proceed to evaluate the other three factors provided in Appendix D.
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13 At most, in the absence of adequate assertions of fact such as vould create a contested issue, the function of the intervenor would be to assist the Board in perforning the Board's responsibili-ties to make the safety evaluation called for by the rules applicable to contested proceedings.
In an earlier order (March 3,1971), the Board analogized the role of intervenors to that of " private attorneys general." But that role can give them no preferred status to flout the directions of the Board or the rules of the Cc:: mission. Even a public attorney general is not above the law and must accept and meet the burdens and responsibilities imposed upon those who initiate litigation.
Applicant, Consumers Pcver Company, for the reasons above stated, moves the Board for an order striking Mapleton Intervenors' contentions, revoting their leave to intervene and dismissing their petition to intervene. In the alternative, Applicant moves for an or-der precluding further participation in the envirorsental portion of this proceeding.
Respectfally submitud, 9 K 221 J hri K. Restrick 12 West Michigan Avenue Jackson, Michigan 49201 asawan W Robert Lovenstein Lovenstein, Newman & Reis 1100 Connecticut Ave., N.W.
Washington, D. C. 20036 Of Counsel:
Richard G. Smith Dated: May 22, 1972
L . s. ..
U'IITED STATES OF A! ERICA ATCMIC ENERGY C0! MISSION In the Matter of )
Consuners Power Company )
Application for Reactor ) Docket No. 50-329 Construction Pemit and ) Docket No. 50-330 Operating License )
CERTIFICATE OF SERVICE I hereby certify that copies of the attached Applicant's Motion to Dismiss Mapleton Intervenors' Intervention or in the Alternative to Pre-clude Their Further Participation in the Environmental Hearing, dated May 22, 1972, have been served on the following by deposit in the United States mail, first class, this 5th day of June,1972:
Arthur W. Murphy, Esq., Chairman David E. Kartalia, Esq.
Atomic Safety and Licensing Board U. S. Atomic Energy Co= mission Columbia University School of Law Uashington, D. C. 20545 Box 38, h35 vest ll6th Street New York, New York 10027 Milton R. Wessel, Esq.
Kaye, Scholer, Fierman, Hays Dr. Clark Goodman and Handler Professor of Physics 425 Park Avenue University of Houston New York, New York 10022 3801 Cullen Boulevard Houston, Texas 77004 Jcmes N. O'Connor, Esq.
The Dov Chemical Company Dr. David B. Hall 2030 Dow Center Los Alamos Scientific Laboratory Midland, Michigan h8640 P. O. Box 1663 Los Alamos, New Mexico 87544 Myron M. Cherry, Esq. (2)
Suite 1005, 109 N. Dearborn Street William J. Ginster, Esq. Chicago, Illinois 60602 Suite 4, Merrill Building Saginaw, Michigan 48602 Irving Like, Esq.
Reilly, Like and Schneider Mr. Stanley T. Robinson (20) 200 West Main Chief, Public Proceedings Branch Babylon, New York 11702 Office of the Secretary of the Co= mission Atomic Safety and Licensing Board Panel U. S. Atomic Energy Co= mission U. S. Atomic Energy Cc= mission Washington, D. C. 20545 Washington, D. C. 205k5 Jcmes A. Kendall, Esq. Hen. William H. Ward 135 N. Saginav Road Assistant Attorney General Midland, Michigan 48640 State of Kansas Topeka, Kansas 66612
/s/ John K. Restrick John K. Restrick Attorney Censume.2 Power Company