ML19210E419
| ML19210E419 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 11/21/1979 |
| From: | Swanson D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 7912050015 | |
| Download: ML19210E419 (9) | |
Text
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11/21/79 l5 n
UNITED STATES OF AMERICA
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._...s NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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y METROPOLITAN EDISCN COMPANY
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Docket No. 50-289
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(Restart)
(Three Mile Island Nuclear
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Station, Unit No.1)
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NRC STAFF RESPONSE TO PETITION TO SEEK NRC FUNDING FOR CONSUSER INTERVENORS I.
INTRODUCTION In the present proceeding The Consumer Advocate of Pennsylvania ( etitioner) has filed with the Commission a " Petition To Seek NRC Funding For Consumer Intervenors To Finance Witness Expenses" (Petition) (undated).
In its submittal, the Petitioner requested financial assistance on behalf of itself and those intervenors who have either recuested or who nay at some later date request financial assistance frca the Commission for the purpose of retaining experts who will submit studies and/or testify before the Licensing Board on any issues raised in the proceeding.
In the Petition, the Petitioner asserts that its request for funding is properly before the Commission since the Licensing Scard had denied similar requests filed by other persons, ruling that it is without authority to approve funding to intervenors on any issue other than psychological distress.1/ Peti tion, p.1.
In succort
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Altnoucn tne 3 card has found that several petitioners have either satisfied the interest requirements for intervention in this croceeding, or that certain representatives of tne Conmenwealth of Pennsylvania or agencies thereof may particicate pursuant to 10 CFR 12.715(c), it has not yet ruled that anyone has been admittad as a party.
7 912 050 O/ f i%61 032 m=m
. if the request, the Petitioner refers to the letter of the Comotroller General advising that agencies such as the NRC can fund intervenors under certain circumstances, as well as court decisions supporting such funding by other agencies in the past.
Petition, pp. 2,3.
Notwithstanding any merit that may be contained in Petiticner's argument, the Staff nonetheless opposes the request upon the grounds that:
- 1) the request is improperly behre the Commission, and 2) the current policy of the Commission does not sanction such intervenor funding. The Staff sets forth its response to the Petition more fully below.
II.
THE PETITION IS IMPROPERLY BEFORE THE COMMISSION The Staff perceives at least two fundamental obstacles to the Commission's acceptance of jurisdiction to consider the present Petition.
The first obstacle is that the Petitioner in filing the request is not seeking to assert its cwn claim, but rather, is improperly seeking to assert the claims of other persons in the preceeding.
Second, even if the Petitio ei were appealing the denial of a motion that it had made before the Board, such an appeal wculd be barred by the Commission's Rules of Practice.
A.
A Persen may not Recresent the Richts of Other Petitioners In the present action certain persons who have petitioned to interver2 have requested financial assistance to retain experts to assist their case and to apoear as witnesses in tnis proceeding.
By Memorandun and Order dated October 15, 1979, the Board denied the recuests for intervenor i
. funding, citing the Ccmmission's November 12, 1976 Statement of Consider-etions Teminating Rulemaking, in which the Commission detemined that intervenor funding is, in general, act approcriate at this time.
In a subsequent order of October 31, 1979, the Licensing Board denied a request by Petitioner ANGRYU to certify the question of intervenor funding to the Commission.
In its order, the Board decided that the Commission had exer-cised its discretion to carve out an exception to its policy against inter-venor funding for the limited purpose of considering the possibility of funding for intervenors on the issue of psychological distress.
ANGRY Order at 2.
Accordingly, the Board concluded that it would be improper to certify the question of general intervenor funding to the Commission.
The present Petitioner did not file or join in any of the motions for inter-venor funding considered by the Licensing Board, and thus, it has no decision by the Board from which to appeal.
Instead, the Petitioner is now seeking to assert the claims raised by other persons and to appeal the denial of their motions.
The Commission has declared in the past that a person may> not assert the rign s of anyone other than itself in NRC proceedings.
Portland General Electric Co. (Debble Springs Nuclear Plant, Units 1 and 2), CLI-75-27, a NRC 610,613 (1977), citing Warth v. Seldin, 222 U.S. 490, 499 (1975).
In this present action, no other oerson has sought to acceal the question
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9emorancuin anc Order Denying Motions by T'4IA and ANGRY" dated October 31 1979 (ANGRY Order).
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of intervenor funding directly to the Commission, and Petitioner may not do so on their behalf. Moreover, as will be discussed below, it would be irproper for even those other persons to apoeal this question directly to the Commission.1!
3.
Petitioner may not Apocal the Board's Denial of Funding to the Commission Even if the Petitioner were appealing a denial of a motion that it had made before the Soard for funding, it would be barred from taking an appeal of that denial to the Commission by virtue of 10 CFR i 2.730(f).
That regulation specifically prohibits persons from taking interlocutory appeals to the Commission from rulings of the presiding office..
The only exception to that prohibition is contained in 10 CFR i 2.714a.
That regulation pemits a person who has petitioned to intercene in a proceeding to appeal from an order concerning his petition only.f the order denied the petition outright.
As indicated above, Petitioner's petition for leave to participate as an interested state agency was grsnted by the Board.
An interlocutory appeal utilizing i 2.714a is therefore not available to Petitioner.
Although interlocutory apceals are not generally pernitted, interlocutory review o# licensing board rulings can be sought pursuant to 10 CFR i 2.730(f). Under this section, a presiding officer may refer a ruling 1/
The Staff notes tnat neither the recuests made by other cersons for funding nor the instant Petition would assist Petitioner even if they were granted, since all such recuests seek runding for intervenors.
Petitioner is not an intervenor in this croceeding, nor has it recuested to be admitted under this status.
Petitioner recuested leave to carticioate as an interested state agency pursuant to 10 "FR S 2.715(c), and was admitted in this capacity.
Transcriot of Ncvemoer 3,1979 special prehearing conference, p. 45.
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directly to the Commission when, in his or her judgment, a pro-ot decision is necessary to prevent detriment to the public interest or unusual delay or excense. Thus, although Petitioners have raised several arguments in suo-port of intervenor funding which may or may not meet the test set forth in i 2.730(f), that regulation requires a person to petition the licensing board to certify the question to the Commission, and precludes the person from appealing the question directly to the Commission.
The fact that Petitioner is not a party but rather a non-party interested state agency does not excuse it from complying with the requirements of 10 CFR 1 2.730(f),
for a participanc admitted under 10 CFR 6 2.715(c) nust comply with all the procedural rules and is subject to the same requirements as other parties appearing before a board.
Gulf States Utflities Co. (River Bend Station, Units, ou
), ALAB-4a4, 6 NRC 760 (197').
For the reasons set forth above, the Staff concludes that Petitioner has improperly submitted its request for funding to the Commission.
III. THE CURRENT COMMISSION POLICY DOES NOT FAVOR FUNDING INTERVENORS As discussed above, the Commission in its November 12,19J6 Statement of Considerations determined that intervenor funding is ge"imally not appropri-ate at this time.
The rationale orovided by the Commission for that decision was that the possioility of substantive contributions to the correct resolu-tion of safety and environmental issues is not substantially greater'in the case of funded versus unfunded intervenors, jd., 4 NRC at 504 15%f 036
. As the Licensing Board indicated in its October 15, 1979 Memorandum and
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Order, the Ccmmission exercised its discretion to consider an exception to its bar to intervenor funding on the issue of psychological distress in this proceeding.
However, the Board concluded-in its order that: "[b]y expressly considering that possible exception the inference must be drawn that the Commission had consicered the possibility of general intervenor funding and decided to limit its consideration to funding on psychological issues."
ANGRY Order, p. 2.
The Board applied this same reasoning to ANGRY's request for certification of the funding issue to the Commission, ruling that no purpose would be served by certifying an issue which the Commission had already expressly considered in this proceeding. Jd. at 2.
The Staff submits that the Board correctly applied the Commission's ban on intervenor funding in this case.
In conclusion, the Staff submits that the case against general intervenor funding in NRC proceedings is well-established by Commission decisions.
Accordingly, the issue is not one which would warrant the Board's certifi-catien cf the matter to the Commission. Nor is it en "ezceptional issue" which would justify having the Appeal Board or the Commission direct certi-fication of the issue to the Commission.
See, Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-382. 5 NRC 603 (1977).
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. IV.
CONCLUSION For the reasons set forth 10 this Response, "'- Staff concludes that the Ccmission should deny the Petition.
- esoactfully submitted,
,[} cz,r
/
T w w-,
Daniel T. Swanson Counsel for NRC Staff Dated at Bethesda, Maryland this 21st day of Nove ber,1979 1.50) 038
UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION BEFORE THE COMMISSION In the Matter of
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METROPOLITAN EDISON COMPA,"f, ET AL.
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Docket No. 50-209
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(Three Mile Island Nuclear Station,
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Unit 1)
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CERTIFICATE OF SERVICE
- hereby certify that copies of "lTRC STAFF RESPONSE TO PETITION TO SEEK NRC FUNDING FOR CONSUMER INTERVENORS" in the above-captioned proceeding have been served on the follcuing by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Cocnission's internal rail system, this 21st day of November, 1979:
Ivan W.
Snith, Esq.*
Mr. Steven C. Shelly Atomic Safety and Licensing Board 304 South Market Street U.S. Nuclear Regulatory Ccesission Mechanicsburg, PA 17G55 Washington, DC 20555 Mr. Thecas Gerusky Dr. Walter H. Jordan Bureau of Radiation Protection 881 W. Outer Drive Department of Environ = ental Oak Ridge, TN 37330 Resources P.O. Box 2063 Dr. Linda W. Little Harrisburg, PA 17120 5000 Hermitage Drive Raleigh, NC 27612 Mr. Marvin I. Lewis 6504 Bradford Terrace George F. Trowbridge, Esc.
Philadelphia, PA 19149 Shaw, Pite=an, Potts & Trowbridge 1300 M Street, N.W.
Metropolitan Edison Company Washington, DC 20006 ATTN:
J.G. Herbein, Vice President Karin W. Carter, Esq.
P.O. Box 542 505 Executive Ecuse Reading, PA 19603 P.O. Box 2357 Harrisburg, PA 17120 Ms. Jane Lee R.D. 43, Sex 3521 Honorable Mark Cohen Etters, PA 17319 512 E-3 Main Capital Buildinz Harrisburg, ?A 17120 Ms. Mar crie M. Aamodt R.D. #5 Walter W.
Cohen, Consumer Advocate Ccatesville, PA 19320 Department of Justice Strawberry Square, 14th Floor Harrisburg, PA 17127
]
Robert L. Knupp, Esq. Holly S. Keck Assistant Solicitor Anti-Nuclear Group Fepresenting Knupp and Andrews York P.O. Box P 245 W. Philadelphia Street 407 N. Front Street York, PA 17404 Harrisburg, PA 17108 John Levin, Esq. John E. Minnich, Chair =an FA Public Utilities Commission Dauphin Co. Board of Coc=issioners Box 3265 Dauphin County Ccurthouse Harrisburg, PA 17120 Front and Market Streets Harrisburg, PA 17101 Jordan D. Cunningham, Esq. Fox, Farr and Cunninghan Robert Q. Pollard 2320 North 2nd Street Chesapeak Energy Alliance Harrisburg, PA 17110 609 Montpelier Street Balti= ore, MD 21218 Theodore A. Adler, Esq. Widoff, Reager, Selkowit: & Adler Chauncey Kepford P. O. Box 1547 Judith H. Johnsrud Harrisburg, PA 17105 Environmental Coalition on Nuclear Power Ms. Ellyn R. Weiss 433 Orlando Avenue Sheldon, Harmon, Rois=an & Weiss State College, PA 16801 1725 I Street, N. '4. Suite 506 Ms. Friede Berryhill, Chair =an 'Jashington, DC 20006 Coalition for Nuclear Power Plant Postponement Atomic Safety and Licensing Board 2610 Grendon Drive Panel
- Wilmington, DE 19808 U.S. Nuclear Regulatory Coc=ission Washington, DC 20555 Ms. Karen Sneldon Sheldon, Har=on, Roissan i Weiss Atomic Safety and Licensing Appeal 1725 I Street, N.W.
Panel (5)* Suite 506 U.S. Nuclear Regulatory Coc=ission Washington, DC 20006 Washington, DC 20553 Ms. Marjorie M. Aamodt Docketing anc Service Section (5)* R.D. #5 Office of the Secretary coatesville, PA 19320 U.S. Nuclear. Regulatory Co==ission Washington, DC 20555 Earl 3. Hoffman Dauphin County Cc=missioner Sa=uel J. Chilk (1: Dauphin County Courthouse Secretary of the Co= mission Front and Market Streets U.S. Nuclear Regualtory Cc==ission Harrisburg, PA 17101 Washington, DC 20555 ijOf.040 s WM kQ Martia E. Mulkey / Counsel for NRC Staff}}