ML19312C553
| ML19312C553 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 02/29/1968 |
| From: | Hobbs F US ATOMIC ENERGY COMMISSION (AEC) |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 7912160112 | |
| Download: ML19312C553 (10) | |
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I U: TIT 2D.STl.T2S OF A'ZnICA ATO:2C EM22G? CG02SSICli i
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CO':iISSIC 'Z2S :
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Glenn T. Seeborg, Chairacn i
Jcacs T. Rcccy Gerald F. Tape Wilfrid E. Johnson i
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In the Metter of
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DICC POWER C0:21.W
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DOCKET 1:03. 50-269
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50-270 (Oconee 1:uclear Station
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50-287 Units 1, 2 cnd 3)
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j 1-SM0Mim'dI A:4D 0'1D2 On January 3,1950, the Conctission issued a Decision in this i
matter upon c::ceptions tehich had beca filed, by cleven North Carolinc municipalities and by Piedmont Cities Power Supply, Inc., to an initial decision of en atonic scfety and licensing board.
On Jcnucry 12, 1968, i
the municipalitic:: and Piedmont filed petitions for reconsideration of our Decision and requested oral argument thereon. The applicant and i
the staff have submitted briefs opposing these petitions.
1 In its initial decision, the bocrd ordered that provisionci con-struction permits be issued under Section 104 b, of the Atomic Energy 7912160//2 g
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Act to the Duke Pouer Compcny, the'cpplicant herein, to build three pressuriced ucter rccctors at the applicant's site in Ceonce County, South Carolina.
The cleven nunicipalitics, uhich hcd been granted intervention in this proceeding by the bocrd, grounded their excep-tions to the initial decision on the basic contention thct the Com-mission is uithout jurisdictioa to issue construction permits for the threc Oconce reactors under Section 204 b. of the Act.
Piedmont Citics Pouer Supply, Inc., to whom the board had denied intervention, execpted to that denini cnd cshed that ne order it to be made a party to the proceeding and that the henring be reopened so that it might participate tharcin.
Our Decision of Janucry 3,1968, which ue are nou asked to re-enamine, denied the appellents,' exceptions in all respects.
We are sctisfied that the petitioners' filin3s and the responses by the staff cnd the cpplicant adequctely set forth the crguments bearing on the present petitions and that oral argument is unnecessary.
For the rocsons stated belou, we believe that the petitions for recon-sideration should be denied.
The municipalities, while requesting that uc again consider all of the arguments previously made in support of their exceptions, basically contend that our Decision failed to comply uith the provisions of 10 CF2 5 2.770(b)(1) in that it did not rule upon every issue of fact, lau or discretion presented by the intervonors' exceptions and i
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- 3. Alnl o o Ju state the bases for such rulings.
They further contend that cc erred i
in failing to take into consideration antitrust aspects in the licensing determination.
These contentions, in our vicu, are without merit.
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Section 2.770(b)(1) of our Rules of Practice, 10 CF2 5 2.770(b)(1),
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provides as follova, in relevant part:
" (b ) * *
- f The final decision will be in criting and will include:
j (1) A state.ent of findings and conclusions, uith the basis for them on all atcrial issues of fact, lav j
or discretica presented;"
This provision parallels language centained in Section 8(b) of the Administrative Procedure Act (APA), which langua;c has been the subject of considerabic authoritative coamantary.
It is cicar, under the APA, that agencies may issue their opinions in narrative and c:<pository form without enking separate findings of fact and conclusions of lau; the purposes of the subject requirement are met if an agency's opinion indicates its findings and conclusions on material issues of fact, lau or discretion with such specificity as to advise the parties and any reviewing court of their record and Icgal basis. 1/
It is further established that an agency need not treat every issue or supporting
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Attorney Conorrl's Manus 1 on the Mninistrativa Precedure Act,
- p. 65, (1947).
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1 argument raised by the parties to a proceeding.
Only naterial issues 1
of fact, inw or discretion need be dealt uith, and an agency is not required to make findings and conclusions and give reasons therefor on collateral issues or issucs not relevant to its decision. 2/
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this regard,'the legislative history of the APA is enplicit that "A particular conclusion of law may render certain issues and findings immaterial, or vice versa." 3/
As the staff points out, the contentions uhich the municipalitics have raised respecting the proper application of Section 2.770(b)(1)~
lie in the area of statutory interpretation.
The question, therefore, i
is uhether our Decision directly ruled upon or rendered immaterial the various matters of lav presented by the municipalitics' carlier excep-tions and, in so doing, adequately stated the bases for the positions taken by the Commission.
The ansuer to this, as our discussion below shous, must be in the affirmative.
Dealing, serintim, with the contentiers raised by the municipalitics' petition, it is clear, as respects their first claim of crror, that our Decision rejected the standard urged in their exceptions for deter-mining whether or not a type of reactor has demonstrated practical value 2/*
.Minneepolis and St. Louis Railuny Co. v. United States, 351 U. S.
173; Deen South Broedcastine Co. v. F.C.C., 278 F. 2d 264 (CADC);
Stauffer Leboratorics, Inc. v. F.T.C., 343 F. 2d 75 (C. A.9);
Brotherbs; ' of M,intenance of Hov Ecolovees v. United States, 221 F. Supp.19 (E.D.Mich.), affirmed, 375 U. S. 216.
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Sen. Rep. 572, 79th Cong.,1st Sess., pp. 24-25.
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7 J and enplained at some icngth our cun position in this regard. The nunicipalitics' contention that our Decision uns deficient beccuse uc cited no statutory or decisional inw in support of our inter-protation of the Atoaic Energy Act, is plainly mispicccd. We would think it beyond dispute that, as the agency charged uith responsibility for inplementing and administering the provisions of the Ato.aic Energy Ace, our interpretation of the Act is not only relevant but entitled to substantial uci ht.
Pouer "cactor Develerment Co. v.
L Internstienni Union,,,et al. 357 U. S. 395.
As to the nunicipalitics' interpretation of the term "research and development", the ground for their cocond claim of error, the Decision confir.med our previous holding that the term covers a demen-stration that vill provide a basis for commercial evaluation, and related our interpretation to the matter in issue. Uc further stated our agreetcat with the board that rescarch and development needed to complete the design of certain co.aponents for the Oconee units evi-denced an c::perimental purpose concommitant with the purpose of economic demonstration.
The municipalitics next contend that our Decision did not prop-crly trent with their exception relating to licensability of the Oconec facilitics under Section 104 b.
It is sufficient to note, in this regard, that the Decision enpressly held "the proposed Cconce reactors are
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properly to bc licensed under Section 104 b." end that, cs is the case vith the other caceptions, it scvc reasons therefor uhich cither directly rejected or rendered immaterial the crguments advanced by the tunici-pclitics in support of a contrary conclucion.
As respects the municipalitics' further general contention that the Decision's " overruling of ecch and all of the Interveners' E::cep-tions unc.contrcry to 1cu", they achnculed;e thct underlying thece c:cceptions "are the interpretations which Intervenors have given.
the interrelated sections of the Atomic Energy Act".
He think it cicer that our interpretation of the Act and treatment of the central question of jurisdiction to issue construction permits under Section 1C4 b.
has reacved the bcses of thece exceptions.
The tunicipalitics fin 211y contend that "the Co~aicsion erred in failing to take into consideration entitrust espects in the tot:1 of its licensin; responsibilitics." The etcff and the cpplicant have re:ponded that the cunicipalitics' reque t for our considerction of antitrust natters ct thic stese in untimely and, further, that in a proceedin3 for peraits to construct nucicar poner rocctors of the type specified in Section 104 b., the Com.-C. scion has no regulatory authority under the Act to deny or condition a permit because of antitrust con-siderctions. 4/
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Cited in this regard cre Section 105 of the Act and the folloa-in; references in the lesicletive history be: ring on Corniscion considerction of cntitrust iscues in licensing =ctters: Vols. II and III, Legicictiva History of the Atonic Energy Act of 1954, pp. 1923, 2042, 2132, 2256, 2257, 2350, 2559 cad 3537.
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Uc are in agrecaent vith the staff and the appliernt that the request for our consideration of antitrust matters at this late stage is not timely.
Although the cunicipalities had asserted antitrust arsu-ments in the " Protest" which they originally filed with the board, follow-ing the board's dismissal of that " Protest" for lach of jurisdiction to consider the matters raised therein, their ensuing petition to intervene
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and accompanying motion to dioniss focused on the jurisdictionci issue of whether the appliettion was properly uithin the scope of 3cction 104 b.
The latter became the only contested issue in the proceeding end the only one presented to us on appeal.
The essortion of antitrust contentions in connection uith the instant petition is nanifestly untinely.
10 CFR Section 2.762(a).
Uhile the ground stated above is dispositive here as regards the municipalitics' ancitrest contentions, no believe the staff and the cpplicant are further correct that, in a proceeding for permits to construct nuclear pouer reactors of the type specified in Section 104 b.,
the Coarission has no regulatory authority under the Act to deny or condition a perait because of antitrust considerations.
The petition for reconsideration filed by Piedmont Cities Pcuer Supply, Inc., presents nothing which could lead us to alter our previous holding that denial of intervention was proper.
Uc rcrain of the view that the interest clained by Piedmont is remote and tenuous at best and that it affords neither a basis for entiticcent to intervene under our Act nor one warranting a grr.nt of intervention in the sound encrcise of administrative discretion, as was the caso uith the tunicipalitics.
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_s In our Decision uc ciso observed that, in vieu of the professed identity of interest betueen Piedmont end the cunicipalitics ns ucil as their contnon contentions-and representation,t,e failed to perceive hou Piedmont tas prejudiced in any prcetical tcy by its being denied inter-vention.
Piedmont's petition responds thct its "roic cnd interests in participating in this proceeding,t:hile inseparable from those of the Citics,
in certain bcsic respecto, are nevertheless not entirely co-ontensive, either as a natter of assi:: ting the Comnission in uncovering antitrust probicas or in helping it fashion the sppropricte relief for Fiedmont and the cleven intervenor :'unicipalitics." Uc find this unparsucsiva.
There is no need to repeat uhat uns ccrlier stated respecting present consideration of antitruct matters; as for fcshioninh appropriate relief, it suffices to sny thct what both Piedmont cud the municipalities scusht in their joint petition to intervene end motion to dismiss vcs dismissal of the Ocon2e cpplication for lack of jurisdiction t'nder Section 104 b., a actter ra docit with in ruling on the contentions t;hich the municipclitics pursued.
It is therefore CRDERED that the petitions for reconsideration filed by the cloven municipclitics and by Piedmont Cities Pouer Supply, Inc.,
are denied.
By the Co.nmission.
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F. T. Hobcs Acting Secretary Dated February 29, 1968 J
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UITITED STATES OF AMEftICA g-i ATO:IIC E !ERGY COMMISSIOU In the Matter of
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DUKE F0WER CO'IPAHZ
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Dochet Pos.J (Oconce nuclear Station, )
50-270 Units 1, 2 and 3)
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50-287 CERTmCATE OF SED / ICE I hereby certify that copies'of a IEIOR/diDUA AUD ORDER issued by the Comission on Februar/ P9,1968 have been served on the followinS by deposit in the United States Mail, first class or air mail, this twenty-ninth day of February, 1968:
Thomas F. IMge3hardt, Esq.
Dr. E. Kenneth f.yco i Robert E. Turt::, Esq.
State Health Officer Regulatory Staff State Board of Health U. S. Atomic Energy Cc mission J. Marion Sims BuildinS Uashington, D. C.
20545 Columbia, South Carolina 29201 Uillinn H. Grigg, Esq.
1/x. W. T. Linten Assistant General Counsel Executive Director of Pollution Duke Power Company Control Authority 422 South Church Street State Board of Ecalth Charlotte, North Carolina 28201 Columbia, South Carolina 29201 Roy B. Snapp, Esq.
Mr. William F. Ponder 1725 K Street, H. W.
Connissioner Suite 512 Departnent of Labor Washington, D. C.
M006 1416 Senate Street P. O. Box 1137 Carl Horn, Jr., Esq.
Colunbia, South Carolina 29201 422 South Church Street Charlotte, North Carolina 28201 Mr. Henry C. Schultze, Director Developnent Research Center Mr. William S. Lee State Development Board Vice President, Engineering P. O. Box 927 Duke Power Company Columbia, South Carolina 29202 General Office Charlotte, North Carolina 2S231 Honorable Daniel K. Moore Governor, State of North Carolina Honorable Robert McNair State Capitol Governor, State of South Carolina Raleigh, North Carolina 27601 State House Columbia, South Carclina 29201 Honorable Lester Maddox Governor, State of Georgia Harry M. Lichtsey, Jr., Esq.
State Capitol Assistant Attcrney General Atlanta, Georgia 30334 State of Scuth Carclina 1213 Lady Street Columbia, Fouth Carolina 29201 D *
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2-Jack R. Harris, Esq.
J. O. Tally, Jr., Ecq.
Suite 207 - Stimpson-Wagner Building P. O. Draver 1660 Statesville, North Carolina 28677 Fayetteville, Iiorth Carolina 1.
Morris Chertkov, Esq.
1730 Rhode Island Avenue, H. W.
Suite 600 Waching' en, D. C.
20036 A.
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/$75:&.: W 8 : i;:L Office of the Secreta,/
V cc:
T. F. Engelhardt A. A. Wella E. E. Steele g H. I. Smith 4
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