ML19209C507
| ML19209C507 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 09/04/1979 |
| From: | Mulkey M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7910160040 | |
| Download: ML19209C507 (8) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 9/4/79 BEFORE THE ATOMIC SAFETY AND LICEtlSING BOARD In the Matter of
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METROPOLITAN EDISON COMFANY, et al.
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Docket No. 50-289
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NRC STAFF RESPONSE TO PETITIONS LA d7 7
OF THE COMMO%EALTH OF PENNSYLVANIA, THE PENNSYLVANIA 0FFICE OF CONSUMER ADVOCATE, AND DAUPHIN COUNTY TO PARTICIPATE
- CH1 PURSUANT T010 C.F.R. 52.715(c)
Introduction The NRC Staff has received copies of petitions from three governmental en-tities seeking participation in this proceeding pursuant to 10 C.F.R. 52.715(c).
A 52.715(c) petition was filed by the Corronwealth of Pennsylvania on August 23, 1979 signed by Governor Thornburgh and designating that the Attorney General's office will represent the Commonwealth. The Office of Consumer Advocate, a part of the Department of Justice of the Commonwealth of Pennsyl-vania, filed on August 15, 1979 a request to participate pursuant to 52.715(c).
By a filing dated August 15, 1979, the Assistant Solicitor for Dauphin County filed a " petition to intervene" in this proceeding on behalf of the County and County Corcissioners (hereinafter Dauphin County).
However, the present parties to the proceeding were informed by Chairman Smith by conference call that the County desires to participate pursuant to 52.715(c).
For the reasons set forth below, the NRC Staff does not now oppose the participation of any of these petitioners. However, we argue that the Office of Consumer Advocate is not an " interested" state agency within the meaning of 52.715(c) and that 1147 109 7910160
' their participation should be determined based upon the criteria governing discretionary grants of opportunity to participate in flRC proceedings. We further argue that their present filing is insuf#icient to determine whether those criteria support granting them an opportunity to participate.
Argument The Commonwealth of Pennsylvania and Dauphin County are, respectively, the state and county in which the facilit; is located. The Atomic Energy Act requires that states in which the facility is located be provided an opportu-nity to participate in proceedings under the Act, without taking a position on the issues to be resolved.
Section 274 of the Atomic Energy Act, 42 U.S.C.
2021(1). The Commission has, in 52.715(c) of the Rules of Parctice, extended this opportunity to interested counties as well, acting pursuant to 5161 of the Atomic Energy Act which " grants broad discretionary authority to the Com-mission to obtain information, make investigations or hold hearings as it deems necessary." Statement of Considerations accompanying May 26,1978 amend-ment to 10 C.F.R. 52.715(c). 43 F.R.17793 (April 26,1978). Accordingly, it follows that the county in which the facility is located is an " interested
... county" within the mecning of the regulation.
A much more difficult problem is presented by the petition filed by the Office of Consumer Advocate.
In the explanation of its interest in the proceeding, that Office relies solely upon its responsibility to represent the interests of consumers, stating that its position is "that the Board should make its decision narrowly and that the econcmic burden en ratepayers should not be 1147 110
. increased by an extended proceeding in this forum on the future of nuclear power." The Consumer Advocate further states that it " seeks to protect con-sumers from bearing all of the costs associated with any decision regarding Three Mile Island 1."
It is a settled principle that economic interest of ratepayers is not suffi-cient to establish standing to intervene as of right under 92.714(a) since concern about electricity rates is not within the zone of interests sought to be protected by the Atomic Energy Act or the National Environmental Policy Act.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), ALAB-333, 3 NRC 804, 806 (1976). There is very little NRL case law construing the interest requirement of 62.715(c), and we have been unable te find any case where the question of an interest not within the zone of interests arguably protected by the statute is presented.
The only dis-cussion of the interest requirement of 52.715(c) is found in a case involving a California agency's participation in the Exxon reprocessing proceeding, where the question is framed in terms of whether that agency's statutory duty (at that time) to make findings regarding ultimate waste disposal and/or recycling was sufficient to establish an interest in the Exxon proceeding on a facility located in a distant state (Tennessee).
Both the Licensing and Appeal Boards found that the agency's interest was adequate.
Exxon Nuclear Company, Inc.
(Nuclear Fuel Recovery and Recycling Center), LBP-77-59, 6 NRC 518, 523-24 (1977); aff'd, ALAB-447, 6 NRC 873, 879-80 (1977). The separate opinion of 1147 1l'1 Mr. Sharfman recites, at note 8 (6 NRC 875-76), five cases involving licensing of power reactors in which neighboring states were granted leave to partici-pate as interested states. The thrust of his opinion and that of Mr. Salzman (who together formed the majority) can fairly be read to support the idea that the interest requirement of 52.715(c) has real content, requiring a showing beyond a desire to participate in the proceeding.
We believe t. hat reason and the available case law point to a conclusion that the interest requirement of H2.715(c) is sufficiently similar to the standing requirement of 52.714(a) that, at a minimum, the interest asserted by a state acency must be arguably within the zone of interests sought to be protected by the Atcmic Energy Act and National Environmental Policy Act.
The economic interests of ratepayers/ consumers do not fall within this category.
Although we do not believe that the petition filed by the Consumer Advocate demonstrates compliance with the interest requirement of 52.715(c), we note that the petition refers to participation before the state Public Utility Commission and general familiarity with the financial ability of Metropolitan Edison.
It h possible, therefore, that the Consumer Advocate meets the criteria for the Board to grant an opportunity to participate as a matter of discretion. NRC adjudicatory boards have authority to allow intervention as a matter of discretion to some petitioners who do not meet judicial standing tests.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).
We know of no reason why this authority doe; not apply equally well to petitioners to participate as in-terested governmental entities unde' 52.715(c).
Exercise of this discretion 1147 112 is determined by all the facts and circumstances of the particular case, and the factors to be considered in making the determination include those in 52.714(a) relating to nontimely petitions and in 52.714(d) relating to intervention in general.
Id. at 616.
Foremost among the factors which are to be taken into account is whether a petitioner's participation would likely prnduce a valuable contribution to the Commission's decision-making process.
Virginia Electric and Power Comoany (North Anna Power Station, Units 1 and 2),
ALAB-363, 4 NRC 631 (1976).
The NRC Staff does not object to the Consumer Advocate's amending its peti-tion to attempt to make a showing that it can add significantly to the considera-tion of issues relating to financial qtalificaticns.
We perceive no basis on the face of the Const.ner Advocate's petition for participation, discre-tionary or otherwise, on other aspects of the proceeding.
Conclusion For the reasons set forth herein, the NRC Staff supports the admission to this proceeding of the Commonwealth of Pennsylvania and Dauphin County as participants pursuant to 10 C.F.R. 52.715(c). We argue that the Pennsylvania Office of Consumer Advocate does not fulfill the interest requirement of H2.715(c) but may, upon an amended showing, warrant admission to participation at the discretion of the Board.
Respectfully submitted, f/bpW$U/
Marcia E. Mulkey dIC Counsel for NRC Staff Dated at Bethesda, Maryland 47} this 4th day of September, 1979.
LJ ll UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) ) METROPOLITAN EDISON COMPANY, _e t_ _a_l_. ) Docket No. 50-289 ) (Three Mile Island, Unit 1) ) NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-cactioned matter. In accordance with 92.713, 10 C.F.R. Part 2, the following information is provided: Name Marcia E. Mulkey Address Office of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Telephone No. (301) 492-7445 Admissions Court of Appeals of the District of Columbia Name of Party NRC Staff U. S. Nuclear Regulatory Commission Respectfully submitted, / Da M bh b4 Marcia E. Mulkey Counsel for NRC Staff Dated at Bethesda, Maryland this 4th day of September, 1979 1147 114
UNIlF9 STATES OF A.31CA
- UCLE.;P, RSULAIGRY CC."MIiSIC'l BEFORE TiiE Aiu.ilC SAFETY ?
- ;D I.ICOS'.'M EC 70 In the Mat.ter of
) ) MEfkOFOL1 FAN EDIS0:1 COMPANY, ) Cad.et :to. 50-239 f.T AL. ) (Thrca lile Islcnd, L' nit 1) ~ CERTIFICATC_OF SERVICE I hereby certify that copies of "NRC RESPONSE TO PETITIONS OF THE COMMONWEALTH OF PENNSYLVANIA, THE PENNSYLVANIA 0FFICE OF CONSUMER ADVOCATE, AND DAUPHIN COUNTY TO PARTICIPATE PURSUANT TO 10 C.F.R. 52.715(c)" and " NOTICE OF APPEARANCE" for Marcia E. Mulkey in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Cormiission's internal mail system, this 4th day of September.1979.
- Ivan N. Smith, Esq.
Ellyn ' :-iss, Esq. Atc.aic Safety & Licensing Board Panel S h e l don, Ma nc.c n, Ro i wan an d '::a i s s U.S. Nuclear R29ula tory Cc:ct.1ission 1025 15th Street, N.N. 'lashingtcn, D. C. 20335 'lashi.igton, D. C. 2000S Dr. '..'al ter H. Jo rdan President's Cc. nission on the Accident 831 W. Outer Drive at Three Mile Island Oak Ridge, Tennessee 37830 2100 M S treet, N.W. Dr. Linda W. Little 20:3 !!armitage Drive Mr. Thens Carucky Pallich, : orth Caralina 27612 3ureau of R2diation Pratection Caparicint of Enviror. 2ntal Resources Norga F. Tec.bridce, Esq. P.O. Iox 2C63 Sha i, Pitt:..In, Potts & Trowbridge Harrisburg, Pcnnsylvania 17120 1800 M Street, N.W. 'lashington, D. C. 20006 Mr. 'arvin L. Lc. tis 6501 3r..dford Tarrace Varin N. Carter, Esq. Philadelphia, Pennsylvania 19149 Assistant Attorney General Da; aru. ant of Envirane:ntal Resources Ma trcplihn rdison C-piny /09 N 11 th and '.lel fa ce Cuilding Attn: J. G. ?!arbein, Vice President
- a rri :' u r.), P nsylvania 17120 P.O. Tax 542 Manorable Mark Cahan 012 E-3 Sin Capital Cuilding
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. :: alter U. Cohen, Consu:cer Advocate Ms. !!olly S. Keck C2partir.nt of Justice Anti l'uclear Group Representing Stra.. berry S'1'n re,14th Floor York !!arrisburg, Pennsylvania 17127 245 N. Philadelphia Street Yor'<, Pennsyl vania 17404 P.05;rt L. Knupp, Esq. f sit t.nt Slicitcr Knupp and Andrews P.O. Eo.< P 407 N. Front Street Harrisburg, Pennsyl n.nia 17108 g I John E. :'.innich, Cliairi!;an Cauphin Co. 3 card of Cei..uissioners !i-Dau,nhin County Courthouse Front and :*arket Sts. Harrisbucg, Pennsylvania.17101 Atomic S3.fety a.nd 1.icensing Appeal Scard U.S. 'hclear Regula tory Co.m.aission ' ashington, D. C. 20S55 Ato oic Safety =.nd Licensing Ecard Panel U.S. ::uclcar T:guld tory Con..ission ' '. a shing ton, D. C. 20555 Docketing and Scryice Sction U.S. Nuclear Ragula tory Corr. mission Washington, D. C. 205S5 ~ 7 6 4)~/)ktL / 9 Marcia E. itulkey i Counsel for NRC Staff 1147 116 ~}}