ML19312C560

Exception on Behalf of Piedmont Cities Power Supply,Inc,To Initial Decision of ASLB & Request for Oral Argument to Demonstrate Economic Interest

ML19312C560
Person / Time
Site:	Oconee
Issue date:	11/22/1967
From:	Harris J, Reeder S, Tally J PIEDMONT CITIES POWER SUPPLY, INC.
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 7912160119
Download: ML19312C560 (9)

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UNITED STATES OF AMERICA

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ATOMIC ENERGY COMMISSION -

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In the Matter of DUKE POWER COMPANY OCONEE NUCLEAR STATION, Units 1, 2 and 3 EXCEPTION ON BEHALF OF PIEDMONT CITIES POWER SUPPLY, INC., TO INITIAL DECISION OF ATOMIC SAFETY AND

, LICENSING BOARD AND REQUEST FOR ORAL ARGUMENT

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Jack R. Harris J. O. Tally, Jr.

. Spencer W. Reeder Attorneys for Piedmont Cities Power Supply, Inc.

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.CC...; '.. ..GY CO MMISSION DOCKET NOS. 50 - 269, 50 - 270, 50 - 287 In the Ma::er of DUKE POWER COMPANY OCONEE NUCLEAR STATION, Uni:s 1, 2 and 3 EXCEPTION ON BEHALF OF PIEDMONT CITIES POWER SUPPLY, INC., TO INITIAL DECISION OF ATOMIC SAFETY Aht LICENSING SOARD AND REQUEST FOR ORAL

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ARGUMENT Now comes Piedmont Cities Power Supply, Inc., (Piedmont), and, ; .

pursuant :o See:1on 2.762 of the Rules of Practice of the Atomic Energy

• Commission, (Commission), and other related rules, hereby, in apt time, '

files exception to the Ini:ial Decision in :hese dockets of the Atomic Safety and Licens'ing Board, (Board), which Initial Decision was issued 3 November 1967:

. INTRODUCTION Piedmont is a corporation not-for-profit incorpcrated under the 1

laws :.,f the Sta:e of Nor:h Carolina. It pe:itioned :he Board to in:ervene l Page One *-

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J* U .* W 4,.1 e ~ w uis - a-f] C . N,U in tisse dockets. Such petition was made jointly with eleven North 1

Carolina municipalities which asked also to intervene .

By order of the Board issued 28 August 1967 , said municipalities were granted intervention, but Piedmont was denied intervention.

Piad-t thereupon moved thr Commission to direct certification e

i of, and reverse, the Board's denial of intervention to it. The Commission by Order issued 15 September 1967, denied the motion ". ..without prejudice to the filing of appropriste exceptions following the issuance of t}s Board's initial decision."

4 The Board has now issued its Initial Decision . hdhgly tMs is the first opportunity available to Piedmont to except to denial to it of the rig)t to intervene.

i EXCEPTION i

Piedmont excepts to the Order of the Board (Record: " Order , ,

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g Record: " Joint Petition of Piedmont Cities Power Supply, Inc., and ]

Eleven Piedmont. Electric Cities for Leave to Intervene", filed 10 August 1967.

g Record: ."Crder Denying Intervention to Piedmont Cities Power Supply, Inc., and' Granting Intervention to the Cities of Statesville, et al and .

Towns of Cornelius, et al, all in North Carolina" '

g Record: ' Order of Commission dated 15 September 1967, pp 2, 3.

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g Record Initial Decision, issued 3 November 1967.

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~ ij Deny.: :ervention, etc., issued 28 August 1967), the Orcer of the Commi (Record: " Order" of Commission dated 15 September 1967, pp. 2, 3), ~.d the Initial Decision (Record: " Initial Decision", issued 3 November 367, p. 3 ), the effect of each and al of which was the same: denial cf Piedmont's right to intervene.

The grounds for the exception (and Piedmont's citations of authorities in support of such grounds) are:

In this proceeding, as related in the introduction, Piedmont 6

and the eleven North Carolina cities filed a joint petition to intervene ,

Each and every part of this Joint Petition showed that Piedmont had as much economic, public and other interest in ths proceeding as had the eleven cities. The plan, fully set forth in the Petition in all its parts, to have Piedmont own a fair share of Oconee Units 1, 2, and 3 and'of the electricity produced from such units and to sell such electricity at cost to tha eleven cities showed an indivisible and mutual plan and economic and other interes:s of both Piedmont and the eleven cities. There is no basis in law or fact for saying that the eleven ci:ies had a "present" economic-interest and Piedmont had not or had only a prospective one.

g All references to pages, unless otherwise indicated, are to mimo-graph pages. -

g Record "Ioint Petition of Piedmont Cities Power Supply, Inc., and Eleven Piedmont Electric Cities for I. eave to Intervene", filed 10 Augus: 1967.

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The plan and joint petition, and the jurisdictional premise upon which both met, could not work for one without working for the other. The ,

economic and other interests of Piedmont and the eleven cities are idential and unitary.

Congress has granted under :he Atomic Energy Act an absolute right to intervene in this proceeding to "any person whose interest may be affected by the proceeding" .

The Atomic Energy Act by its terms establishes the statutory basis for the Commission's granting Piedmont a hearing and for tra s

Commission's admitting Piedmont as a party to this proceeding.

The Atomic Energy Act, 42 U.S.C., Sec. 2239(a), provides:

" (a) In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit ***the Commission shall

, grant a hearing upon :he request of any person whose ..

interest may be affected by the proceeding, and shall ,

admit any such person as a party to such proceeding." .

The Atomic Energy Act, 42 U.S.C., Sec. 2014(q), further provides: ';

"The term ' person' me; .s (1) any individual, corpo-ration, partnership, firm, association, trust, estate, public or private institution, group, Government agency, othat than tre Commission, any State or any political subdivision of, or any political entity within a State, any foreign government or nation or any political sub-diusion of any such government or nation, or other entity; and (2) any legal successors, representative, agent, or agency of the foregoing."

This proceeding under the Atomic Energy Act is an application by Duke Power Company for the grantind of licenses, including a construction Page Tour 9

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permit, to build and operate three nuclear reactors of the pressurized -

wa:er type, and this is therefore a " proceeding under this chapter, for the granting ***of any license or construction permit" within the meaning of 42 U.S.C., Sec. 2239(a), supra. -

Piedmont is a " corporation" and is therefore a " person" within the meaning of 42 U.S.C., Sec. 2014(q) supra.

Therefore, the sole question presented for finding and de:ermi--

nation is whether Piedmont's " interest may be affected by the proceeding".

If the Commission finds, as it must, that Piedmont's " interest may be affected by the proceeding", the Act requires the Commission to grant Piedmont a hearing and to admit Piedmont as a party to the proceed- ,

$. ing. Atomic Energy Act, 42 U.S.C., Secs. 2239 (a); 2014 (q) supra.

Indeed tra very opinion and authorities cited by the Board as justifying and requiring (and they did so justify and require) admitting .

the eleven cities as parties justify and require that Piedmont be so admitted.

Here is that portion of the opinion and here are those audorities .

"The, Board granted intervention to the eleven cities and ,

, towns upon the ground that : heir economic interests were j sufficient to evidence a participating interest within the '

Rules..of the Commission to raise the question of juris-diction asserted. This issue of jurisdiction was deemed to be of such funcamentalimportance in any administrative 7/ Record: " Initial Decision", issued 3 November 1967, pp. 4, 5 and 6 Page Five 1

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L J .=r prc: ceding as to require its determination, in addition to ;c.a regularly assigned safety issues prescribed by the ComT.ission for consideration in the proceeding. Duke and th3 intervencrs agreed tha: the basic problem of the jurisdiction of any regula:ory agency to proceed to an administrative determina: ion required a resolu: ion of the contentions before continuing with the hearing. Section 189 of the Act is ex:remely broad in scope to permit intervention by " . . .any person whose interest may be affected. . . " . Other administrative agencies with more limited statutes have nevertheless permitted intervention to persons or groups who assert only economic interests. -

In addition, judicial determinations permit intervention to groups who assert economic interests and who contest precedures or processes, such as the correct applica: ion of a section of a statute, by which administrative deter-minations are made.

"The Bank of Sussex County v. Saxon, 251 F. Supp.

132 (1966)

"First National Bank of Smithfield v. First National Bank of Eastern North Carolina and Saxon, 352 F. 2d 267 (1964)

"Gonzales v. Freeman, 334 F.2d 570 (1964).

" City of pittsburch v. Federal Power Commission, 237 -

F.2d 741 (1956) . .

. "A customer of a licensee has a valid economic interest b enti ling it to be an intervenor and to contest whether the '

, administrative action is lawful._3/ (Footnote 3: 'It is believed that no agency can deny a review of the lawfulness of its procedures to a person who has an interest that could be affected by the outcome--and a rigid, or restraining limitation of issues to other matters would be a denial of due process. ') Cleveland Electric Illuminatinc Co. v.

Interstate Commerce Ccmmission, et al,147 F. Supp. 622 (1956), aff'd 354 U.S. 917 (1956) ."

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+d kp In addition, a host of cases make it plain that a proposed inter-venor like Fiedmont has the requisite " interest" (economic cr otherwise) under statutes enbodying such " interest" standard; and, accordingly, must be admitted as a party. Among these cases are:

Federal Communications Commission v. Sanders B'ros.,

309 U.S. 470 (1940);

Federal Communications Commission v. National Broad-casting Co. (KOA), 319 U.S. 239 (1943);

Uni:ed States, ex rel, Chapman v. FPC, 345 U.S.153 (1953);

Henderson v. United States, 339 U.S. 816 (1950);

Associated Industries v. Ickes,134 F.2d 654 (2d Cir.,1943);

Natural Coal Ass'n. v. FPC,1,91 F.2d 462 (D. C. Cir.1951);

Reade v. Ewing, 205 F. 2d 630 (2d Cir.,1953);

Red River Broadcastinc Co. v. Federal Communications Commission, 267 F.2d 653 (D. C. Cir.1959);

Interstate Broadcasting Co. v. United States, 286 F.2d 539 (D. C. Cir.1960); ,

Bedchick v. Public Utilities Commission, 287 F.2d 337 (D.C. Cir.1961),

United States v. Dublic U:ilities Commission,151 F.2d 609 \

(D. C. Cir.1945); j Philco Corp. v'. Federal Communications Commission, I

. 257 F.2d 656 (D. C. Cir.1958), cert, denied, sub nom.,

National Broadcasting Co. v. Philco Corp., 358 U.S. 946 (1959); and ,

Office of Communication of Unitid Church of Christ v. FCC, 359 F. 2d 994 (D. C. Cir.1966). l 1

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WHEREFORE Piedmont prays that the Commission sustain the abow listed exception and overrule the Board, and that the Commission order and allow that Piedmont be made a party to this proceeding, and that the Commission order and direct that hearings in this proceeding be reopened so that Piedmont may present evidence and examine witnesses and cross-examine witnesses and participate as fully in and have equal opportunity to build the record in this case as any other party; and that the Commission order and allow oral argument upon this exception and this appeal from the Board to tre Commission.

Respectfully submitted, PIEDMONT CITIES POWER SUPPLY, INC.

By: -@u b

Jadk g/H.s. ris Suite'207, Stimpson-Wagner Building Statesville, North Carolina -

s/ a%%0 I/O. 7pily, Jr. ##

• P. O. Drawer 1660 Fayetteville, North Carolina Mddd. 0Lo /1 > h)

/ pence'r W. Reeder '

Spencer Building St. Michaels, Maryland Attorneys for Piedmont Cities Power Supply, Inc.

22 November 1967 Page Eight

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