ML19257A516
| ML19257A516 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 12/19/1979 |
| From: | Swanson D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8001040538 | |
| Download: ML19257A516 (10) | |
Text
12/19/79 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
METROPOLITAN EDISON COMPANY, Docket No. 50-289 ET AL.
)
)
(Three Mile Island, Unit 1)
)
NRC STAFF RESPONSE TO PANE REQUEST FOR FINANCIAL ASSISTANCE I.
Introduction On November 29, 1979, People Against Nuclear Energy (PANE) submitted its
" Request For Financial Assistance to Support Intervention on the Issues of Psychological Distress."
(Request.)
In its Request, PANE argues that the Commission has the legal authority to provide financial assistance to Intervenors, and that the facts in this proceeding dictate that the Commission should, as a matter of policy, assist PANE in its presentation of the issue of psychological distress.
The Staff interposes its objection to the pending motion in that it would now be premature to resolve the issue of funding on the psychological distress subject prior to any determination by the Commission as to whether the issue will be considered in this pr0ceeding. Moreover, even if the issue is admitted in this proceeding, the Staff submits that the current Commission policy does not favor funding of Intervenors, and that PANE has 1685 050 8001040
. failed to provide adequate justification for this Board to reach a different conclusion on the issue of psychological distress.
The Staff's argument in support of this position is set forth more fully below.
II.
It is Pramature for This Board to Consider Funding on the Psychological Distress Issue.
A.
The Subject of Psychological Distress May not be Considered The Staff submits that the question of whether to fund PANE on its pre-sentation of the psychological distress issue is not ripe for consideration by this Board in that no decision has been reached on whether the issue will be allowed to be litigated in this proceeding.
In the event that the issue is determined to be outside the scope of this proceeding, this Board need not reach the question presented in the Request.
The Staff contends that there is no legal requirement to consider the issue of psychological distress in this proceeding.
The reasons for this position are more fully set forth in the "Brief of NRC Staff on Psychological Distress Issues" dated October 31, 1979.
In that brief, the Staff argued that the psychological distress issue is not legally relevant to the Commission's responsibilities under the Atomic Energy Act, and that the National Environmental Policy Act does not require con-sideration of potential psychological distress impacts from further operation of TMI-1.
These legal conclusions may well persuade the Board and, ultimately, the Commission to decide that the subject of psychological distress is beyond the scope of this proceeding. Accordingly, it is 1685 051
- premature for the Board to concern itself with the grant of funding on subject matter that may well be excluded from consideration in this proceeding.
B.
Even If the Subject of Psychological Distress is Within the Scope of this Proceeding, PANE's Contention on the Issue May Not be Admitted.
Even if the Commission determines that psychological distress issues should be heard in this proceeding, it does not necessarily follow that PANE will participate on the issue. The Commission may fashion the issue so that parties raising contentions in the area must meet some special burdenE, or PANE's present contention may be four.d to be inadmissable.
For example, it is unclear to the NRC Staff whether PANE's contention, together with the plan for presentation of evidence, makes an adequate showing of basis for believing the facts asserted are measurable. This problem relates partly to the difficulty of use of lay witnesses as apparently anticipated by PANE and partly to the lack of demonstration by PANE of how it can connect any measured or measurable psychological effects to the startup of TMI-1.
In light of these circumstances, there is a realistic possibility that issues related to psychological distress could be litigated in this proceeding without PANE's participation.
For this additional reason, it is premature to consider PANE's funding regtest at this time.
If See, eg., the Commission's Order of August 9 relating to persons seeking to raise financial qualifications contentions. Order at 12.
1685 052
. C.
Conclusion In light of the above factors, the Staff concludes that it would be premature for this Board to esolve PANE's request for funding on the psychological distress issue now.
However, the Staff recognizes that the Board may recommend that the Commission hold that the issue of psychological distress is within the scope of this' proceeding, that PANE's contention is admissible, and that it desires briefs on the appropriateness of funding PANE on the issue.
In order to avoid unnecessary delays that would result from awaiting briefs on the issue of funding from the parties, the Staff sets forth in the second part of this Response its position on the subject. !
III. Funding of PANE on the Psychological Distress Issue is Imorocer A.
The Lecal Status of Intervenor Funding is Uncertain.
The Staff concedes that PANE has presented an argument which, when considered alone, appears to establish a framework within which the Commission could legally authorize the funding of Intervenors if it concluded that
~2/ The Staff recognizes that there exists at least one additional factor that may support its claim that the issue of funding PANE is premature.
Unlike the basic issues of the relevance of psychological distress and the admissibility of contentions relating to the issue, the Commission's Order does not contain a provision for the parties or the Board to advise it on the subject of funding Intervenors on the issue.
Instead, the Order merely states that the Commission "...will also consider whether it can and should grant financial assistance to parties seeking to raise these issues in this case" at the same time that it reaches a decision on the appropriateness of the issue and related contentions.
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), Order and Notice of Hearing, slip op., p.13 (August 9,1979).
Absent special permission from the Commission to directly raise the funding issue with it, PANE may not appeal a denial of funding by the Board.
The Board may, however, certify the question to the Commission, thereby presenting the views of the parties for Commission consideration.
I d_.
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- it was prudent to do so.
See, Request, pp. 2-5.
However, there are at least two events that tend to cloud the issue of the legality of funding Intervenors.
The first factor was referred to by PANE in its Request, at page 4.
The Report of the Energy and Water Development Appropriation Bill,1980, contains the following statement in its discussion of the NRC's appropria-tions for fiscal year 1980:
The budget request and the committee recommendation do not include funds for Intervenors.
H. R. Rep. No.96-243, 96th Cong. 1st Sess. 136,139 (June 7,1979).3/
Although the House Report does not contain language specifically pro-hibiting the expenditure of funds for Intervenors, the Staff submits that PANE may not properly draw the inference that the House Appropriations Committee has decided that specific legislation or appropriations on the issue is unnecessary because the Commission can provide funding under its general authority. When Congress has desired tc provide for Intervenor funding of agencies, it has enacted statutes expressly establishing the authority to fund Intervenors in proceedings before those agencies.4/
The absence of express authorization to the NRC to fund Intervenors could be asserted as an argument that the Commission is prohibited from expending funds for Intervenors.
However, as PANE points out, the General Counsel for the NRC has concluded that the best legal arguments favor implicit authority for the NRC to fund.
See Request at 3.
1685 054
-3/ The referenced House Report was adopted by the House Conference Report on the appropriations act in this matter.
H.R. Rep. No.96-388, 96th Cong., 1st Sess. 1 (July 25, 1979).
The Senate appropriation report for fiscal year 1980 is silent on Intervenor funding.
S. Rep.
No.96-242, 96th Cong., 1st Sess. (July 12, 1979).
4_/ See, e.g.:
EPA:
Toxic Substances Control Act,15 U.S.C. 2605(c)(4)(A);
FTC:
Magnuson-Moss Warranty--FTC Improvement Act,15 U.S.C. 57a(h)(2);
FERC:
Public Utility Regulatory Policies Act of 1978 55 212(b)(2),
122(a)(1), (b)(2), Pub. L. No.95-617,16 U.S.C. 825q-1(b)(2),
2632(a)(1), (b)(2); Department of State:
22 U.S.C. 2692.
As indicated by the above discussion, the issue of the legality of funding Intervenors by the Comission cannot fairly be said to be clearly resolved, and in such circumstances, it would be inappropriate for the Licensing Board to make a determination on the legality of Intervenor funding.
B.
Current Corrmission Policy Does Not Favor Funding Intervenors Regardless of whether the Commission could legally fund Intervenors, the Comission has established a policy which does not favor such funding.
The Comission, in its flavember 12, 1976 Statement of Considerations Terminating Rulemaking, determined that Intervenor funding is generally not appropriate at this time. The rationale provided by the Commission for that decision was that the possibility of substantive contributions to the correct resolution of safety and environmental issues is not sub-stantially greater in the case of funded versus unfunded Intervenors.
NRC (Financial Assistance to Participants in Coanission Proceedings),
CLI-76-23, 4 NRC 494, 504 (1976).
Moreover, the Comission's policy against funding Intervenors has been consistently applied in NRC adjudicatory proceedings.
It is the Staff's position that an Intervenor must convincingly distinguish its argument from the general reasoning contained in the Comission's Statement of Considerations before funding of that party can even be considered. As is discussed below, PAilE has not met this burden.
1685 055
' C.
PANE Has Failed to Establish That an Exception to the Commission's Policy Should be Carved Out for the Issue of Psychological Distress PANE asserts that the issue of psychological distress does not fall within the reasoning that the Commission relied upon to deny funding, since the issue will not be reviewed by technical experts within the Staff, the ACRS, or the Licensing or Appeal Boards.
Request at 5.
Since this expert review is lacking, PANE argues, the Commission cannot claim that the record on the issue will be fully developed without experts retained by PANE. However, this assertion is simply not true.
The Staff agrees that it does not presently have in-hou.ie expertise on the issue of psychological distress. Should the Commission rule that the subject should be considered in this prcceeding, the Staff will secure expertise outside of the NRC to evaluate the psychological impacts of startup of TMI-1, and to prepare testimony on the issue. The presence of experts viho would be available for examination at the hearing obviates the need expressed by PANE for funding it to perform the same task. Accordingly, the Staff submits that the reasoning contained in the Commission's 1976 decision is applicable to this proceeding; i.e., that it cannot reasonably be expected that the funding of PANE's additional efforts in this area is necessary so that they would contribute substantially to a full and fair determination of the psychological issue, should it be considered in this proceeding.
For the above reasons, the Staff discerns no sound basis for departing from the Commission's established policy against Intervenor funding on the psychological distress issue.
1685 056
. IV.
Conclusion In conclusion, the Staff urges the Board to defer ruling on the Request since it is premature to resolve an issue that may well not have to be reached in this proceeding.
In the event that issue must be reached at a later date, the Staff submits that the present Commission policy does not favor funding of Intervenors, and that PANE has not distinguished the issue of psychological distress from the reasoning utilized by the Commission in establishing its policy. Accordingly, the Staff concludes that the Board should deny PANE's Request.
Respectfully submitted, h
[
Daniel T. Swanson Counsel for NRC Staff Dated at Bethesda, Maryland this 19th day of December,1979.
1685 057
UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Ia the Matter of
)
METROPOLITAN EDISON COMPANY, Docket No. 50-289 ET AL.
)
)
(Three Mile Island, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO PANE REQUEST FOR FINANCIAL ASSISTANCE", dated December 19, 1979, 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 Commission's internal mail system, this 19th day of December,1979:
- Ivan W. Smith, Esq.
Mr. Steven C. Sholly Atomic Safety & Licensing Board Panel 304 South Market Street U.S. Nuclear Regulatory Commission Mechanicsburg, Pennsylvania 17055 Washington, D.
C.
20555 Mr. Thomas Gerusky Dr. Walter H. Jordan Bureau of Radiation Protection 881 W. Outer Drive Dept. of Environmental Resources Oak Ridge, Tennessee 37830 P.O. Box 2063 Harrisburg, Pennsylvania 17120 Dr. Linda W. Little 5000 Hermitage Drive Mr. Marvin I. Lewis Raleigh, North Carolina 27612 6504 Bradford Terrace Philadelphia, Pennsylvania 19149 George F. Trowbridge, Esq.
Shaw, Pittman, Potts & Trowbridge Metropolitan Edison Company 1800 M Street, N.W.
Attn: J.G. Herbein, Vice President Washington, D. C.
20006 P.O. Box 542 Reading, Pennsylvania 19603 Karin W. Carter, Esq.
505 Executive House Ms. Jane Lee P.O. Box 2357 R.D. 3; Box 3521 Harrisburg, Pennsylvania 17120 Etters, Pennsylvania 17319 Honorable Mark Cohen Walter W. Cohen, Consumer Advocate 512 D-3 Main Capital Building Department of Justice Harrisburg, Pennsylvania 17120 Strawberry Square,14th Floor Harrisburg, Pennsylvania 17127 1685 058
Robert L. Knupp, Esq.
John Levin, Esq.
Assistant Solicitor Pennsylvania Public Utilities Com.
Knupp and Andrews Box 3265 P.O. Box P Harrisburg, Pennsylvania 17120 407 N. Front Street Harrisburg, Pennsylvania 17108 Jordan D. Cunningham, Esq.
Fox, Farr and Cunningham John E. Minnich, Chaiman 2320 North 2nd Street Dauphin Co. Board of Commissioners Harrisburg, Pennsylvania 17110 Dauphin County Courthouse Front and Market Sts.
Theodore A. Adler, Esq.
Harrisburg, Pennsylvania 17101 WID0FF REAGER SELK0WITZ & ADLER Post Office Box 1547
- Atomic Safety and Licensing Appeal Board Harrisburg, Pennsylvania 17105 U.S. Nuclear Regulatory Comission Washington, D. C.
20555 Ms. Ellyn R. Weiss Sheldon, Harmon, Roisman & Weiss
- Atomic Safety and Licensing Board Panel 1725 I Street, N.W.
U.S. Nuclear Regulatory Commission Suite 506 Washington, D. C.
20555 Washington, D. C.
20006
- Docketing and Service Section Ms. Karen Sheldon U.S. Nuclear Regulatory Commission Sheldon, Harmon, Poisman 3 Weiss Washington, D. C.
20555 1725 I Street, N.W.
Suite 506 Robert Q. Pollard Washington, D. C.
20006 Chesapeak Energy Alliance 609 Montpelier Street Ms. Marjorie M. Aamodt Baltimore, Maryland 21218 R.D. #5 Coatesville, Pennsylvania 19320 Chauncey Kepford Judith H. Johnsrud Environmental Coalition on Nuclear Power 433 Orlando Avenue State College, Pennsylvania 16801 Ms. Frieda Berryhill, Chairman 7
4 Coalition for Nuclear Power Plant
[.u d m%
Postponement Daniel T. Swanson 2610 Grendon Drive Counsel for NRC Staff Wilmington, Delaware 19808 Holly S. Keck Anti-Nuclear Group Representing York 245 W. Philadelphia Street York, Pennsylvania 17404 1685 059