ML19312C567
| ML19312C567 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 08/29/1967 |
| From: | Engelhardt T US ATOMIC ENERGY COMMISSION (AEC) |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 7912160138 | |
| Download: ML19312C567 (9) | |
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Rft0b. & UTIL. FAC. 50-%12?o.2.37 UNITED STATES OF AMERICA ATOMIC ENERGY COFDfISSION In the Matter of
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DUKE POWER COMPANY
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Docket Nos. 50-269
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50-270 (Oconee Nuclear Station,
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50-287 Units 1, 2 and 3)
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MOTION REQUESTING COMMISSION TO HAVE CERTIFIED TO IT QUESTION BY ATOMIC SAFETY AND LICENSING BOARD Summary The regulatory staff movas that the Commission promptly direct the atomic safety and licensing board in this proceeding to certify to it the following question:
"Whether the petition to intervene filed by the petitioners herein should be i
granted."
This motion is made to provide opportunity to the Commission to reconcile diametrically opposed decisions on the identical intervention issue decided - as a matter of law - by the atomic safety and licensing board in this case and the board in the Vermont Yankee casa. Consideration of this question at the h
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present time will permit the Commission to consider it together with the onmo intervention question now pending on appeal in the Vermonc Yankee case and the practical value issue already certified in this case.
Statement of the Case The Duke Case 1/
On August 11, 1967, cloven Piedmont Electric Cities (petitioners) and the Piedmont Citics Power Supply, Inc., filed a joint petition requesting intervention in this proceeding, as well as a motion to dismiss the proceeding on the ground that the facilitics were " commercial" reactors which chould be licensed under 5 103 of the Atomic Energy Act of 1954, as amended, (Act),
rather than 5 104 b.
On August 28, 1967, the atomic safety and licensing board (board) herein issu'ed an " Order Denying Intervention to Piedmont 1/ City of Statesville, City of High Point, City of Lexington, City of lbnroc, City'of Shelby, City of Albc=arle, Town of Cornelius, Town of Drexel, Town of Granite Falls, Town of Newton and Town of Lincolnton.
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- Cities Power Supply, Inc. and Granting Intervention to the Cities of Statesville, Et A1, and Towns of Cornelius, Et A1, All in North Carolina". As the basis for granting such inter-vention, the board hold, as a matter of law, that "any person whose interest may be affected" within the meaning of 5 189(a) of the Act included the petitioners. The board stated
" Economic interests have been held sufficient basis for intervention in regulatory proceedings.
National Coal Association v. Federal Power l
Commission, 191 Fed (2nd) 462 (1951); Virginia Petrolcum Jobbers Acrociation v. FPC, 265 Fed (2nd) 364 (1959); Michirnn Concolidated Gas Co. v. FPC, 283 Fed (2nd) 204 (1960). This economic interest is directly related to the issue of jurisdiction which the parties to this proceeding recognize is fundamental to any regulatory proceeding...The eleven cities and towns, however, are existing customers and thus have sufficient interest to warrant inter-vention in this proceeding. These interests are adequately reflected in their petition to thus comply, also, with the Rules of Practice of the Commission."
With respect to the petitioners' motion to dismiss, the board issued an " Order Denying Motion to Dismiss Application Respecting Oconee Nuclear Station Units 1 and 2 and Deferring i
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l Decision Respecting Oconee Nucicar Station Unit 3", also dated August 28, 1967, which denied the motion with respect to the Duke Power Company (Duke), Oconee Nuclear Station, Units 1 and 2, but deferred any decision on the motion with respect to Unit No. 3 until further data are available.
The board referred the rulings in this order to the Commission for review, "...in accordance with 5 2.730(f) of the Rules of Practice..."
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Despite the. suggestion at the prehearing conference and in the staff's brief in opposition to the petition for leave to intervene that the board might wish to certify the intervention question to the Commission, the board did not request Commission guidance on this subject. Thus, the " practical value" question was placed by the board before the Commission, but the inter-vention question was not.
The Vermont Yankee Case In the Matter of Vermont Yankee Nuclear Power Corporation, Docket No. 50-271, a group of local utilities also filed a 2/ Tr. 8
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5-petition for leave to intervene in that proceeding based on identical grounds to those stated in the Duke case.
In a "Prehearing Order Denying Joint Petition for Leave to Intervene and Permitting Limited Appearance", dated July 31, 1967, the atomic safety and licensing board in that proceeding denied the petition for leave to intervene holding - as a matter of law - that the stated interests of these utilities do not constitute
"...an interest comprehended within the meaning and intent of the applicable statutory and regulatory provisions."
The Vermont Yankee board also noted that the petition to inter-vene did "...not indicate how any immediate and substantive intarest of the Petitioners may be affected by the present proceeding..." and that "The contentions of the Joint Petition are irrelevant to the issues in the proceeding".
The petitioners in Vermont Yankee filed an " Appeal from Pre-Hearing Order Denying Joint Petition for Leave to Intervene and Permitting Limited Appearance, Dated July 31, 1967", dated w
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6-August 18, 1967, and filed by personal service on August 21, 1967. The grounds incorporated in the petitioners' appeal in Vermont Yankee, which are incorporated herein by reference, are based upon identical " economic interests" to those asserted by the petitioners in Duke.
The Commission Should Promptly Review the Board's Order Granting Intervention It is respectfully submitted that the Commission should promptly review the intervention question in this proceeding by directing the board to certify it in accordance with $ 2.718(1),
10 CFR 2, in order that the final action be consistent with the action taken in Vermont Yankee, now pending decision by the Commission.
As stated in its briefs to the boards in each of these proceedings, the regulatory staff believes that persons pro-fessing an economic interest which the Commission has no juris-diction to consider under 5 104 b. of the Act have no standing to intervene.
It is submitted that the board in this proceeding erred in its legal interpretation of the applicable statutory and regulatory provisions.
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_ Even if the actions by the boards in these two cases were considered to be matters of discretion, rather than of law, the Commission should undertake review at this time to assure a uniform treatment of this intervention question. The Com-mission should act to prevent such inconsistent decisions be-coming final.
The question presented by the board's order granting intervention in this proceeding presents an appropriate question for prompt review by the Commission. As stated by
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the Commission in its statement of general policy for the conduct of proceedings, 5 III(g)(2) Appendix A,10 CFR 2:
"A question may be certified to the Commission for its determination when the question is beyond the board's authority, or when a major or novel question of policy, law or procedure is involved which cannot be resolved except by the Commission and when the prompt and final decision of the question is important for the protection of the public interest or to avoid undue delay or serious prejudice to the interests of a party. For example, a board may find it appropriate to certify novel questions to the Commission as to the regulatory jurisdiction of the Commission or the right of persons to intervene."
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- In addition to the need to reconcile conflict!nq decisions, the question of permitting intervention on the basis of "cconomic interests" in a 5 104 b. proceeding presents a major and novel question of law and policy which cannot be resolved except by the Commission.
Motion The regulatory staff, therefore, moves that (1) Pursuant to 5 2.718(1),10 CFR 2, the Commission direct the board in this proceeding to certify to it the following question:
"Whether the petition to intervene filed by the petitioners herein should bc granted."
(2) The applicant, petitioners and staff be given a period of approximately 10 days for the filing of any briefs supplementing the positions previoucly taken by such parties in this proceeding.
Respectfully submitted, Thomas F. Engelhardt Councol AZC Regulatory Staff
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Dated at Bethesda, Maryland, Troy 3. Conner, Jr.
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Trial Counsel this 29th day of August, 1967
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(IIITED S'!%TEG OF A!GRICA ATO:iIC EERGY C0ieII33IC?l I
In the t.'atter of
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DUlG PCCR COMPANY
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Docket Nos.
50-2N'
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50-270 (Oconee Nuclear Station,
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50-267 l
Units 1, 2 and 3)
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CERTIFICATE OF SERVICE I
I hereby certify that a copy of the " Motion Requentia.;
Commission to have Certified to it question by Ato n:.1. A L'/
and Licensin; Board", dated August 29, 1967, in the captioneu matter has been served upon the following by the deposit in l
the United States mail this 29th day of August,198/. Copi :n I
have also been forwarded to the parties at the proceeding.w.s 5
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in progress in Walhalla, South Carolina, together with infoc-j national copics to the Board.
William H. Grigg, Esq.
Algic A. Wells, Chairman l
Carl Horn, Jr., Esq.
Atomic Safety and Licensind Roy B. Snapp, Esq.
Board Panel At torneys for Duke Power Co.
U. S. Atomic Encray Conniscien c/o Clemson House Washington, D.C.
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Clemsca, South Carolina Stanley T. Robinscu, Jr.
l Jack R. Harris, Esq.
Chief, Public Proceedin.P,c Branch Joseph O. Tally, Jr., Esq.
Office of the Secretary Spencer W. Reeder, Esq.
U. S. Atomic Energy Co.ualsni<sn Attorneys for Intervenors Wochington, D.C.
2051c c/o Clemson House Cler. con, Couth Carolina Ecnorable Robert !"citair Governor of the State of Sout.h llarry M. Lightsey, Jr., Esq.
Carolina c/o Cienscn House Statc House Cleauun, Cout.h Carolina Columbia, South Carolina licnorable Dan K. !; core j
- c:e.. is. -1.c ol a r i Covernor of tne Ctate of i:ocLh e v.ar.1 Sua cui so
Carolina C.ca.e Cennly, Coutn Carolina ' Capitol Euibiing Rs.leich. !; orth - Carolina -
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