ML19329F496

Response Opposing Sj Gadler 711220 Petition to Intervene

ML19329F496
Person / Time
Site:	Midland
Issue date:	01/03/1972
From:	Reis H CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8006300705
Download: ML19329F496 (8)

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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of ) j,g4

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CONSUMERS POWER COMPANY ) Docket Nos. 50-329

) 50-330

- (Midland Plant, Units 1 and 2) )

APPLICANT'S ANSWER IN OPPOSITION TO PETITION FOR LEAVE TO INTERVENE OF STEVE J. GADLER Pursuant to 10 CFR 2.714 (b) , Consumers Power Company ,

the Applicant in this proceeding , hereby files this Answer in Opposition to the Petition For Leave To Intervene of Steve J. Gadler, dated December 2d, 1971. Applicant urges the presiding officer in this pro'ceeding to exercise his authority under 10 CFR 2.714 (c) to deny the petitiori for the following reasons:

1. To the extent that petitioner has any interest in this. proceeding, it is already adequately represented by the existing parties ; and the addition of petitioner as a ,

party would further burden an already protracted proceeding.

In specifying the grounds for his attempted

' intervention , petitioner avers that he seeks to protect "the high quality of life enjoyed by all citizens in the United States" (p.1) , which is threatened by the release of any radiation into the environment by atomic electrical generat-ing plants.. Petitioner, who resid'es several hundred miles f

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from Midland, does not assert any personal ties to the area in any reasonable proximity to where it is proposed the plant will.be constructed and operated. Nor does petitioner l cite any considerations indicative of a special concern with the Midland plant, in distinction to any other electrical generating. facility. Similarly, his contentions with regard to Emergency Core Cooling System relate only to the inadequacy of code criteria and not the inadequacy of this particular i

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plant's ECCS operation (p. 5).'-

Clearly then, petitioner seeks to represent the broadest public interest in this proceeding, rather than

. any identifiable particular inter'est. Congress has allocated that role to the Atomic Energy Commission itself and to its staff. Moreover, private groups purporting to represent the public interest already abound in the instant proceeding.

Petitioner's interests as a U.S. citizen and his contentions have been amply aired and vigorously pressed by the opposing intervenors who are presently parties. And, there is nothing whatsoever in the instant petition to support a belief that the public would derive additional benefit from this new self-styled protector. See Sierra _ Club v. Mor_ ton, 433.- F.2d 24 (9th Cir.'1970)., cert.jgranted 401 U.S~.

907 (1971),

4 1/ The former topic ,of course, will be considered by the AEC in rule making proceedings commencing this winter.

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. l (citizen's group denied standing in District Court to enjoin Secretary of Interior from permitting construction of a large commercial, re'creational facility, on ground that no particularized interest in.that project had been shown).

It is well' settled that intervention may properly be denied where the interests and contentions of the petitioning party are receiving adequate representation and expression by existing parties. Matter of Duke Power Co.,

2-Atomic Energy L. Rep. 1 11,266.04, AEC Docket Nos. 50-269, 2/

270, 287, decided February 29, 1968.~ The fact that the interest is assertedly "public" does not change the result.

Palisades Citizen Association, Inc. et al. v. C.A.B. ,136 3[

U.S.' App. D.C. 346, 420 F.2d 188 (1969).-

. Moreover, it is readi y apparent from the scheduling and related problems In this protracted proceeding that l

addition of another p' arty would be unduly burdensome absent i some compelling circumstances; and none has been shown.

2/ Petition to intervene for purpose of opposing AEC construc- ~'

tion- permit held to have' been properly denied as duplica-

. tive where power company seeking to intervene professed q identity of interest with existing municipal intervenors ,

c . as well as common contentions and representation.

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'h/- Petf. tion to intervene of citizens ' group held to have been

- properly denied in a proceeding concerning a certificate i

of. convenience:for a Baltimore-Washington helicopter service,

-where the group had been allowed to participate as less than

, , a formal' party, and the Department of Transportation, a j . formal party , effectively advanced the group's environmental position. ,

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In' deed, this petitioner ought to be excluded if for no

- other reason than that the generality of his interest could '

j encourage additional'intervenors with no additional contri-

.T bution. City of San Antonio \

4 112, 374 F.2d 32 6. (19 67) . / , v. C. A. B. ,126 .U. S . App In Office of Communication of

, United Church of Christ v. F.C.C., 123 U.S. App. D.C. 328, 359 F.2d 994, 1005 (1966) , Judge (now Chief Justics) Burger, although' liberally interpreting the right to intervene',

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. emphasized that . .

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"it does not necessarily follow that '

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~ of protestors must be granted standing. . .

or that the Commission need allow the administra-tive' processes to be obstructed or overwhelmed by captious or purely obstructive protests." '

2. The petition should be denied as untimely. The original notice 'of hearing' on the Midland construction Isermits appeared in the Federal Register on October 29, 1970 (35 F.R. '

16749). Within the time period in which a petition to inter-vene could have been filed, petitioner sought instead to -

enter a limited appearance (see telegram .to AEC Secretary dated November 13, 1970). Notwithstanding his displeasure,

- 4f Petition to intervene in a Trans Pacific Route Investigation proceeding with some 75 formal parties held to have been properly denied where petitioner.'s interest as a city on the line of one or more of the air carriers seeking trans-pacific routes was deemed insufficient to require formal participation. .

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as refle.cted in subsequent correspondence, concerning -

the terms of that limited appearance, petitioner has not previously made any attempt to intervene. On November 29, 1971, a supplementary notice of hearing was issued by the .

. AEC, stating that the existing proceeding would consider enumerated environmen'tal matters in accordance with the ,

, September 9, 1971 revision of 10 CFR Part 50, Appendix D, *

. and inviting intervention "with respect to the issues set .

. forth in this notice" (p . '5) .

' Petitioner's conten tions clearly involve radiological and safety issues, notwithstanding that he throws phrases .

like " environmental degradation" (p . 1) about. He seeks to contest the reasonableness of Part 20 standards for radiation emissions and the adequacy of ECCS code criteria.

But the,se are not new issues in this proceeding, and inter-ventilon with respect tio them is expressly precluded by the supplemental notice (p. 3) . .

, The A'EC Ru'les of Practice pr3'ide that "A petition .

for leave to intervene which is not timely filed will be dismissed unless tlie petitioner shows just cause for failure to file it on time." 10 CFR 2.714 (a) .

Petitioner has shown no reason for this tardiness in raising issues which have ,

been under, consideration for some time, and which were not N'

affecte'd.by tlie Appendix D revision. Accordingly, his -

petition to intervene,should be denied.

Ijat'ter of Philadelphia

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Electric Co. (Peach Bottom Units 2- and 3) , 2 Atomic Energy L. Rep. 1,11,269.03, AEC Docket Nos. 50-277, 278, decided 5/

September 6, 1968.

3. Denial of the instant petition will not signifi-cantly prejudice petitioner.

Petitioner has been involved in this proceeding since its inception. As a limited participant he has been accorded the opportunity to make written statements.

10 CFR 2.715 (a) ; see letter to petitioner's attorney from Chairman Murphy dated May 4, 1971. As has been noted earlier, petitioner's views and interests a're actually being championed in this proceeding by the already' existing parties. Indeed, he in fact already appears to be actively involved in managing Midland's case. He has sat at the side of counsel for Mapleton intervenors during the hearings. Those intervenors have announced plans to have him testify at the hearings an an expert witness. (See Mapleton pleading of July 8,1971.)

This type of effective participation, though not as a party, precludes prejudice to the purported intervenor and, thus, 5/ Petition to intervene of municipal utilities commission to oppose AEC construction permit held to have been properly denied on grounds of tardy application, where petitioner had not previously intervened since it felt its' interests were being adequately presented by another municipality, which, however, subsequently declined to appeal an adverse ruling. Denial of intervention was again affirmed on re-hearing, Matter of Philadelphia Electric Co. (Peach ___ Bottom Units 2 and 31, 2 Atomic Energy L. Rep._ 1 11,269.04, AEC Docket Nos. 50-277, 278, decided October 14, 1968.

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is clearly adequate. falisades Citizen Association, Inc. et al. v. C.A.B., supra. In sum, we can conceive of no detriment i

. to the welfare of either petitioner or the public that would arise from hiis formal exclusion.

Wherefore, for all the above reasons, applicant submits that the petition to intervene should be denied.

Respectfully submitted, LOWENSTEIN, N5WMAN & REIS 1100 Connecticut Avenue, N.W.

Washington, D.C. 20036 Dated: January 3, 1972 By df4 4

. Harold F. Reis Attorneys for Applicant Consumers Power Company Of Counsel, -

Harold P. Graves Robert Lowenstein John K. Restrick Richard G. Smith G O e O k

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Q UNITED STATES OF AMERI *

, ~ ~ ~r ATOMIC ENERGY COMMISSION In the Matter of., )

)

CONSUMERS POWER COMPANY ) Docket Nos. 50-329

) 330 (Midland Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Answer in Opposition to Petition for Leave to Intervene of Ste"1t J. Gadler", dated January 3, 1972, in the above-captioned matter have been served on the following in person or by deposit in the United States mail, first class or airmail, this 3rd day of January,1972.

Arthur W. Murphy, Esq., Chairman Milton R. Wessel, Esq.

• Atomic Safetp and Licensing Board Kaye, .Scholer, f Fierman, Hays Columbia University School of Law and Handler Box 38, 435 West 116th Street 425 Park Avenue New York, New York 10027 New York, New York 10022 Dr. Clark Goodman I James N. O'Connor', Esq.

• Professor of Physics .

University of Houston The Dow Chemical Company -

3801'Cullen Boulevard 2030 Dow Center -

Houston, Texas 77004 Midland, Michigan 48640 Dr. David B. Hall Myron M. Cherry, Esq. -

Los Alamos Scientific Laboratory 109 N. Dearborn Street

, P.O. Box 1663 -

Suite 1005 Los Alamos, New Mexico - -

Chicago, Ill. 60602 William J. Gins ter, Esq.

,'Algie A. Wells, Esq., Chairman Atomic Safety and Licensing Suite 4 .

Merrill' Building . . Board Panel Saginaw, Michigan. 48640 U.S. A'tomic Energy Commission  ;

, Washington, D.C. 20545 '

James A. Kendall,' Esq. -

Irving Like,'Esq.

135 N. Saginaw Road .

Midland, Michigan 48640 200 West Main Street ,

Babylon, New York 11702, .

1

-Antho'y n Z. Roisman, Esq.

Berlin, Roisman and-Kessler Stanley'T. Robinson, Esq.

1910 N Street,.N.W. ~~

• Chief, Public Proceeding:: Branch Washington, D'.g. ' 20036

' Office of'the Secretary of the Commission

• Thomas F. Engelhardt, Esq.-

~ ' U.S. Atomic Energy Comm,ission

'U.S. Atomic. Energy Commission Washington, D'.C. 20545 ,,

Washington, D.C. 20545 .

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