ML20195B451

Response Opposing Western Reserve Alliance 860513 Arguments & Allegations Re Petition to Intervene.Arguments Untimely & W/O Merit.W/Certificate of Svc & Svc List

ML20195B451
Person / Time
Site:	Davis Besse
Issue date:	05/23/1986
From:	Doris Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#286-271 ML, TAC-60875, NUDOCS 8605290320
Download: ML20195B451 (9)

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Before the Administrative JudM E'

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TOLEDO EDISON COMPANY, _et _al.

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Docket No. 50-346-ML (Davis-Besse Nuclear Power

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Station, Unit No. 1-)

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LICENSEE'S REPLY TO WESTERN RESERVE ALLIANCE'S MAY 13, 1986 ARGUMENTS AND ALLEGATIONS On May 13,s1986, the Western Reserve Alliance ("WRA") filed

' Western Reserve Alliance's Resoonac to Licensee's Response Opposing Western Reserve Alliance's Petition to Intervene."

WRA's response contains new arauments and allegations.

The i

Toledo Edison Company et al.

(" Licensee"); submits that these ar-quments and allegations are untimely and.without merit.

The Presiding Officer's March 10, 1986 Memorandum and Order directed all persons who vihhed to become parties, including WRA

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explicitly, to file petitions to intervene containing certain specific information by Apr'il 14, 1986.

51 Fed. Reg. 8,920, 8605290320 060523 PDR ADOCK 05000346 Q

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8,921 (1986).1! WRA did not do so.

Not only did WRA fail to meet the Presiding Officer's explicit deadline of April 14, it has also failed to show good cause to justify the late-filed in-formation and arguments in its May 13 oleading.

WRA argues that its November 10, 1985 letter to the Commis-sion satisfied the Presiding Officer's instructions.

This arqu-ment fails for two reasons.

First, when the Presiding Officer ordered that "WRA.

shall file the information called for,"

the Presiding Officer was already aware of WRA's November 10, 1985 letter.

See 51 Fed. Reg. at 8,920.

In this light, WRA's argument is no more than an assertion that it disagrees with and has chosen to disregard the Presiding Officer's Order.

Second, as previously discussed in Licensee's Response Opposing the Peti-ce tion of Western Reserve Alliance for Leave to Intervene (April 28, 1986), WRA's November 10, 1986 letter did not contain the in-formation that the Presiding Officer required.

The inadequacy of the November 10, 1985 letter is best exem-plified by its failure to demonstrate WRA's standing.

Despite WRA's contrary protestations, WRA's November 10, 1985 letter 1/

"On or before April 14, 1986, SOS, TCSE, Susan A. Carter, p

WRA, CLO, OCRE, City of Mentor, Ohio, and anyone else, including governmental entities, who wish to become a party shall file the information called for above."

51 Fed. Reg. at 8,921 (emphasis added). '

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identified no members and alleged no injury to itself or any mem-ber.

Indeed, the November 10, 1985 letter did not even indicate that WRA, a non-profit corporation, had any members.E!

WRA now proposes that its previous statements that it is

" engaged in (public] education" and " serves the area of Northern Ohio," coupled with its generalized concerns, were sufficient to establish standing.

WRA's legal arguments in support of this proposition merely quarrel with established Commission precadents on standing.

A petitioner "must particularize a specific injury that it or its members would or might sustain as a result of NRC actions.

It has been established in Commission practice that a ' generalized grievance' shared in substantially equal measure by all or a large class of citizens will not result in a distinct and palpable harm sufficient to support standing."

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1),

CLI-83-25, 18 N.R.C.

327, 332-33 (1983).

Assertions of broad public interest do not suffice.

Id. at 332.

The NRC does not recognize " private attorneys general."

Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), ALAB-333, 3 2/

See Health Research Group v. Kennedy, 82 F.R.D.

21 (D.D.C.

1979), holding that for purposes of determining an organizatin's standing, contributors and supporters of a non-profit corporation were not " members" of that organization absent sufficient-indicia of membership (i.e. the ability to control the organization).

N.R.C.

804, 806 n.6 (1976).

To obtain representational standing, an organization must identify by name and address at least one of its members with the requisite personal interest, and usually must provide a specific representational authorization from that individual.

Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-536, 9 N.R.C.

402, 404 (1979); Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 N.R.C.

377, 396-97 (1979).

WRA did not satisfy these requirements.

In its May 13 pleading, WRA alleges for the first time that it has members within 30-40 miles of the Davis-Besse plant.

WRA submits an undated, unsigned affidavit of Judith Appleton.

Judith Appleton purportedly resides in Oberlin, Ohio, which the unsigned, undated affidavit states is "about forty miles from the Davis-Besse Nuclear power plant."

Oberlin is approximately fifty miles from the site.

See Davis-Besse FES,' Figure 2.1 (attached).

Irregardless, Judith Appleton lives too far away to have standing in a materials licensing oroceeding.

Boston Edison Co. (Pilgrim Nuclear Power Station), LBP-85-24, 22 N.R.C.

97, 99 (1985), aff'd on other grounds, ALAB-816, 22 N.R.C.

461 (1985).

See also Rockwell International (Energy Systems Group Special Nuclear Ma-terials License No. SNM-21), CLI-83-15, 17 N.R.C.

1001, 1005 (1983) (additional views of Commissioner Ahearne).

Nor is it t _._

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even clear that Ms. Appleton has the proper reoresentational sta-tus.S!

WRA also attempts to bolster its factual allegations.

The need to do so again underscores the inadequacy of WRA's November 10, 1985 letter.

WRA offers no justification for its failure to submit this information in a timely fashion as required by the Presiding Officer's March 10 Memorandum and Order.

Furthermore, WRA's new allegations are not mere elaboration of issues previ-ously raised by WRA, but are copied nearly verbatim from Russell M. Bimber's April 5, 1986 letter filed in this proceeding.

Compare WRA's Response at 9(last paragraph)-14 with Mr. Bimber's letter at 1(third paragraph)-4.

Such wholesale copying tends to show that "more ink than thought" went into WRA's preparation of allegations and indicates that WRA has little to contribute to this proceeding.

Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 N.R.C.

1400, 1419 (1982).

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WRA does not explain in what sense Judith Appleton is a f

" member" of WRA.

There is no indication that WRA, a non-profit corporation, has members who exercise control over WRA's actions.

If WRA's members are mere financial supporters, they are not mem-bers for purposes of standing.

See Health Research Group, suora note 2.

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For these reasons, Licensee again submits that WRA's request to intervene should be denied.

Respectfully submitted,

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c Jay E.

Silberg, P.C.

David R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE Counsel for The Toledo Edison Company et al.

Dated: May 23, 1986 1

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May 23, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Administrative Judge In the Matter of

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TOLEDO EDISON COMPANY, et al.

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Docket No. 50-346-ML

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(Davis-Besse Nuclear Power

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Station, Unit No. 1)

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CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing

" Licensee's Reply to Western Reserve Alliance's May 13, 1986 Arguments and Allegations," was mailed, first class, Dostage prepaid, to the persons on the attached service list this 23d day of May, 1986.

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David R.

Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C.

20036 (202) 822-1474 Dated: May 23, 1986

O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Administrative Judge In the Matter of

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Docket No. 50-346-ML TOLEDO EDISON COMPANY, ET AL.

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(Davis-Besse Nuclear Power

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Station, Unit No. 1)

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SERVICE LIST Helen F. Hoyt, Esquire Charles A.

Barth, Esquire Administrative Judge Office of the Executive Legal Atomic Safety and Licensing Board Director U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commissio Washington, D. C.

20555 Washington, D. C. 20555 Docketing & Service Section Western Reserve Alliance Office of the Secretary c/o Donald L. Schlemmer U. S. Nuclear Regulatory Commission 1616 P Street, N. W.

Washington, D. C.

20555 Suite 160 Washington, D. C. 20036

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