ML19317E080
| ML19317E080 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 12/04/1967 |
| From: | Engelhardt T US ATOMIC ENERGY COMMISSION (AEC) |
| To: | |
| References | |
| NUDOCS 7912130737 | |
| Download: ML19317E080 (13) | |
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00CXETED UNITED STATES OF AMERICA o'
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DEC U E57 r> [-
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DUKE POWER COMPANY Docket Nos. 5
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5 0-27 (Oconee Nuclear Station, Units
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50-287 1, 2 and 3)
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REPLY BRIEF OF REGUIATORY STAFF IN OPPOSITION TO EXCEPTION TO INITIAL DECISION OF PIEDMONT CITIES PCWER SUPPLY, INC.
I Introduction On November 3,1967, the atomic safety and licensing board w ard) in this proceeding issued its Initial Decision which authorized the issuance of construction permits to Duke Power Company (Duke) to construct Oconee Nuclear Station, Units 1, 2 and 3.
On November 22, 1967, Piedmont Cities Power Supply, Inc. (Piedmont) filed an exception to the Initial Decision and requested oral argument before the Co= mission.
On August 10, 1967, Piedmont, together with eleven North Carolina municipalities filed a timely joint petition for leave to intervene in this proceeding. Both the regulatory staff and Duke objected to the admission of the joint petitioners as parties to the proceeding. In an order, dated August 23, 1967, the board denied the intervention of Piedmont p
on the grounds that Piedmont did not have an economic interest sufficient l
l to intervene, but granted intervention to the eleven municipalities on the l
I Srounds that they, as customers of Duke, had sufficient economic interest.
I Piedmont thereupon moved the Commission to direct the board to certify to l
79121307)
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. the Commission the question of the board's denial of the right of Piedmont to intervene. This motion was denied by the Commission in an order issued on September 15, 1967, but without prejudice to the filing by Piedmont of exceptions fallowing the issuance of the board's initial decision.
Piedmont has stated that it is a non-profit corporation recently organized for the purpose of acquiring an undivided interest in Duke's
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Oconee Nuclear Station, as well as a right "in the capacity and energy a
developed by" the Station in order to contract to sell power from the
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Station at cost to the eleven North Carolina municipalities.
II Summary of Argument The exception to the Initial Decision filed by Piedmont in this proceeding should be denied because Piedmont has not stated an interest which entitles it to intervene.
l Section 189 of the Atomic Energy Act of 1954, as amended (Act),
and the implementing regulations set forth in 10 CFR $ 2.714 of the Commission's " Rules of Practice" provide,that only a person 'Shose interest may be affected by the proceeding" shall be admitted as a party to that proceeding.
Piedmont alleges that it has an economic intercet that may be affected by the proceeding because it intends to acquire an interest in the Oconee Nuclear Station for the purpose of selling pcwer at cost to eleven North Carolina municipalities. Such an 1,/ Joint Petition of Piedmont Cities Power Supply, Inc., and Eleven Piedmont Electric Cities for Leave to Intervene, dated August 10, 1967, p. 2.
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. interest is not an adequate interest for intervention in a proceeding on an application for construction permits pursuant to 5 104 b. of the Act. The affected interest in such proceedings must be related to matters of common defense and security or radiological health and safety since these are the only matters considered in a 5 104 b. proceeding.
Since Piedmont has not shown any interest that may be affected by.this proceeding, it is not entitled to intervene.
Fiedmont's request for oral argument before the Ccemission on its exception should be denied since the issue involved in the exception is quite specific and there is no demonstrated need for oral argument.
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t Argument Section 189 a. of the Act provides in part that in any Commission proceeding under the Act for the granting of a construction permit:
"...the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceedine, and shall admit any such person as a party to the proceeding."
(Emphasis added.)
l Section 2.714 (a) of the Commission's " Rules of Practice", 10 CFR Part 2, imple=ents this statutory provision and sets forth the require-ments which govern intervention in any Commission proceeding, including l
proceedings involving the granting of construction per=its.
It provides in pertinent part that:
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. "Any person whose interest may be affected by a proceeding...
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shall fit.e a written petition..Jand] set forth the interest of the petitioner in the proceeding, hcw that interest may be affected by Commission action, and the contentions of the petitioner."
The Commission in a series of decisions has enunciated a clear and 2/
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consistent interpretation of 10 CFR 5 2.714 The Commission's position was first set forth at length in Matter of Walker Trucking Comoany, 1 AEC 103.
In denying a petition to intervene in that proceeding, the Commission held that the law was clear that a member of the public, who may have only an academic technical interest in a proceeding or a common concern for obedience to the law, has not such an immediate or substantive interest as to justify standing to intervene.
This rule was followed generally in Matter of Elk River Power Demonstration Reactor Program Project, 1 AEC 266; Matter of Yankee Atomic i
Electric Company, 1 AEC 296; 1 AEC 326; Matter of Pacific Cas & Electric Company, 2 AEC 173; Matter of Philadelphia Electric Company, 2 AEC 54, 2,/ On November 22, 1967, the Commission plublished in the Federal Register for public com=ent certain proposed amendments to 10 CFR parts 2, 50 and 115.
Included in the proposed amendments was an amend =ent of 10 CFR S 2.714 which provides that a petitioner for leave to intervene must set forth his contentions with reasonable specificity and that a petition which sets forth contentions relating only to matters outside the jurisdiction of the Commission is to be denied.
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. Goldborn v. United States _, appeal dismissed June 5,1967, (3rd Cir.),
cert. denied 371 U.S. 902; Matter of Atcor, Inc., Dicket No. 27-43, Order, June 17,1966, 3 AEC
- Matter of Consolidated Edison Company, Docket No. 50-247, " Memorandum and Order", dated December 20, 1966, 3 AEC See also Matter of Consolidated Edison Comoanv, Docket No.
50-3, " Memorandum and Order", dated November 24, 1965, 3 AEC
_ Matter of Nuclear Fuel Services, Inc., 2 AEC 305, 306.
The regulatory authority of the Commission in a proceeding on an application for a construction permit pursuant to 5 104 b. of the Act is confined to matters of common defense and security and radiological 'nealth and safety. This is confirmed by a reading of the terms of 55 104 and 189 of the Act and by consistent decision in Commission regulatory proceedings.
Petitions for leave to intervene and other procedures which have attempted to raise questions in Cc= mission cases outside the scope of the proceedings have been uniformly rejected.
See Matter of Jersev Central Power and Light Cemnanv, 2 AEC 446, 447 (consideration of the==al effects excluded); Matter of Niagara Mohawk Power Corporation, Docket No. 50-220, Initial Decision, pp.11-12, April 1,1965, 3 AEC (consideration of whether grant of a construction pe= sit constituted support of segregation excluded); Matter of Consolidated Edison Cemoany of New York, Inc., Docket No. 50-3, Me=orandum and Order, Nove=ber 24,1965, 3 AEC (consideration of ther=al effects excluded); Matter of Wisconsin-Michican Power Comoanv, Docket No. 50-266, Order Denying Intervention, June 20,1967, 3 AEC (consideration of e
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. aesthetic and recreational and land use values of lakeshore environs excluded).
The interpretation or construction of a statute by an agency charged with the administration of that statute is given great weight 3/ 4/
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by the courts in determining the meaning of the statute.
The fundamental question with respect to Piedmont's status in this proceeding is whether Piedmont has asserted an interest which meets the requirements for intervention specified in the Act and the Commissions rules. The sole interest asserted by Piedmont is that it has an economic interest that may be affected by the proceeding because it intends to acquire an interest in the Oconee Nuclear Station for the purpose of selling power at cost to eleven North Carolina municipalities.
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F.T.C. v. Mandel Bros., Inc., 359 U.S. 385 (1959) 4/ There has been only one case in which the question of intervention l
in a Commission proceeding was construed by the courts.
In that case, which involved the application of the Power Reactor Development Company for a construction permit pursuant to $ 104 b. of the Act, the Court of Appeals of the District of Columbia circuit considered the issue of whether a union had a right to intervene. Although the
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court stated that the union had an economic interest sufficient to intervene, it went on to state that the econcmic interest it was consider-ing was the possibility of personal injury to or damage to the property of union = embers in the event of an accident at the plant.
(International Union of Electrical, Radio and Machine Workers, AFL-CIO v.
U.S.,
280 F. 2d 645, 646, 647 (1960)). Thus, the union asserted an interest which was within the jurisdiction of the Commission. The decision of this court was subsequently reversed by the Supreme Court on other grounds.
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. The law of standing to intervene in proceedings subject to the 5/
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Administrative Procedure Act (APA) and the related question of standing to appeal such decisions has been the subject of a long line of judicial decisions. Applicable case law is to the effect that agencies and courts must look to the intent of Congress as expressed in the statutory scheme governing the substantive responsibility of each agency to determine what third parties may be admitted to a
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particular proceeding within that scheme. We have found no casas, involving a comparable statute, permitting intervention where the intervenor raised ',
questions solely outside the jurisdiction of the agency.
The leading case on third party participation is F.C.C. v. Sanders 6/
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Brothers Radio Station.
In holding that a competing radio station could, in accordance with 5 402(b)(2) of the Federal Communications Act, appeal a decision of.the Federal Com=unications Commission granting a license, the Supreme Court stated that:
" Congress had -
'ose in enacting 5 402(b)(2).
It may have been of sytnion that one likely to be financially injured by the issuance of a license would be the only person having a sufficient interest to bring to the attention of the appellate court errors of law in the action of the Commission in granting the license.
It is within the power of Congress to confer such standing to prosecute an appeal."
5/ 5 U.S.C. 5 551 et. seq.
6/ 309 U.S. 470 (1940) 4
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. It is clear from a reading of Sanders that the issue raised by the competing radio station was within the general jurisdiction of tihe Federal Communications Commission.
Many other cases follow Sanders in evaluating whether Congress intended third parties to participate in a particular agency proceed-ing. For example, in National Coal Association v. F.P.C.,191 F. 2d 462 (1951), the court found that under 5 19(b) of the natural Gas Act,1/
representatives of the coal industry and unions were competitors having '.
standing to intervene in a case involving the granting of a certificate of public convenience and necessity for a natural gas pipeline.S/
Section 19(b) specifies that interested parties includes competitors.
Here again the issue raised by the intervenors involved a matter within the jurisdiction of the agency.
Similarly, in Scenic Hudson Preservation Conference v. F.P.C,,
354 F. 2d 608 (2nd Cir.1965), the court held that in a proceeding under the Federal Power Acta! (FPA) for the granting of author 2.tf to construct a pumped storage hydroelectric project, ce nservationis t groups had the right to participat.e in the proceedir.g and appeal the matter.
It held that i 313(b) of the FPA applied ta such groups in 2/
15 U.S.C. $ 171 et. seq.
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15 U.S.C. S 717(n).
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16 U.S.C. S 825 et. seq.
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9 view of conservation matters to be considered by the Cocmission in such a proceeding.10/
While it has the power to authorize persons to intervene in agency proceedings without the need to show any affected interest in such a proceeding, the Congress, in enacting 5 189 a. of the Act, did not provide such broad rights to intervene in Ccmmission proceed-ings. On the contrary, it specified that only those persons whose interest would be affected by the proceeding could intervene.
For Piedmont to prevail, it must show that its interest permits intervention in a $ 104 b. proceeding under the statutory scheme established by Congress in the Act. All participation by third parties in Co= mission hearings is governed by $ 189 a. of the Act which states that in any proceeding involving licensing "... any person whose interest may be affected by the proceeding..." shall be admitted as a party. This cection applies to all of the several types of proceedings for licensing actions, rule making, and the payment of patent royalties in which the Commission conducts hearings.
Thus, a person's interest must be shown to relate to the particular type of proceeding being conducted.
10/ See also Seriops-Howard Radio v. F.C.C., 316 U.S. 4 (1942)
(Federal Co=munications Act); State of Washincton Deeartment of Game v. F.P.C., 207 F. 2d 391 (9th Cir.1953)(Federal Power Act); U.S. v. Public Ut.lities Commission of D.C.,151 F. 2d 4
609 (D.C. Cir.1945)(D.C. Code); Reade v. Ewing, 205 F. 2d 630 (2d Cir.1953)(Federal Food, Drug and Cos= etic Act);
American President Lines v. Federal Maritime Board,112 F. Supp. 346 (D.D.C. 1953)(Merchant Marine Act).
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Proceedings for the issuance of construction permits are conducted under 5 5 103 and 104 of the Act. Proceedings involving 5 104 b. of the Act are confined to issues involving common defense and security and radiological health and safety. The issues in this proceeding in no way relate to the matters raised by Piedmont.
The contentions of Piedsont fail to show how its interests might be affected by a Commission decision on any =acter relating to common defense and security or public health and safety. Since Piedmont has alleged as its solo argument for standing to intervena in this proceeding an interest involving an intended acquisition of a property right in the Oconee Nuclear Station for the purpose of selling electric power, it has failed to show an intarcst which was contemplated in the statutory scheme of the Act sufficient to justify intervention.
This conclusion is supportive by simple logic. To permit a person to intervene in a Co= mission proceeding on an application for a construction permit pursuant to 5 104 b. of the Act in order to raise matters outside the jurisdictio'n of the agency would serve
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no useful public purpose since the relief sought is beyond the agency's mathority.
If the Piedmont allegations were viewed in a light =ost favor-able to it, an argu=ent might be made that they a=ount to a claim of
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an econcmic interest which will be affected by practices of Duke which raise alleged antitrust questions concerning the economics of power distribution and me thods whereby power will be distributed by Duke.
In establishing the statutory scheme for the licensing of power reactors, Congress, however, carefully delineated the extent of the Cassission's antitrust responsibilities.
Proceedings to license power reactors can be conducted only under Chapter 16 of the Act, particularly $$ 103 and 104. To determine whether the professed interest of Piedmont is covered by the instant proceeding, an examination of each of these sections, as well as
$ 105, is necessary.
Section 103 of the Act governs the licensing of power reactors which have been found to be "of practical value".
In such, cases,
$ 105 c. of the Act prescribes certain things to be done by the AEC with respect to antitrust considerations, including the receipt of advice from the Attorney General as to whether the proposed license would tend to create or maintain a situation inconsistent with the antitrust law.
If this case were subject to 5 103, it could be argued that Pied =ont might have s tanding to intervene.
On the other hand, S 104 b. of the Act is applicable to all power reactors whose construction and operation lead to the de=on-stration of the practical value of such facilities. Under S 105 of the Act there are only two requirements on the AEC concerning $ 104 b.
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. reactors.
One is to notify the Attorney General of any information it may have which may " restrict free competition in private enter-prise" (105 b.).
The other is to consider suspending, revoking or taking other action with respect to a license previously issued, in the event a court or other Government agency having antitrust juris-diction finds a licensee to have violated antitrust laws (105 a.').
Until such Cone as the Commission may make a finding pursuant to $ 102 of the Act that the type of facilities which Duke proposes to construct has been sufficiently develo' ped to be of practical value for industrial or commercial purposes, no license under 5 103 of the Act could be issued for these types of facilities.
It follows, therefore, that the Commission has no authority to consid'er antitrust matters in this proceeding, which is confined to matters of common defense and security and radiological health and safety. Neither can the Commission deny or condition a permit or license under $ 104 b.
of the Act on the basis of alleged antitrust matters.
In its exception Pied =ont has alleged that since the eleven North Carolina municipalities were permitted to intervene, it too should be permitted to intervene because their interests in the proceeding are identical. The intervening cities cited as the basis for intervention the fact that they were custc=ers of Duke. The board in its order adaitting the cities as parties to the proceeding And in its Initial Decision held that such a basis was adequate for the cities to incarvene. However, we believe, for the same reasons
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. discussed above, that the type of interest in this proceeding which
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was claimed by the cities is not sufficient to obtain standing to intervene and that the board should not have admitted the cities 11/ 12/
as intervenors.
IV Conclusions For the reasons set forth above, the exception to the Initial Decision filed by Piedmont in this proceeding should be denied and Piedmont's request for oral argument should similarly be denied.
Respectfully submitted,
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Thomas F. Engelhardt Counsel AEC Regulatory Staff Dated at Bethesda, Maryland this 4th day of December,1967.
I 11/ At page 6 of the Initial Decision in this proceeding, the beard cites Cleveland Electric Illuminatine Co. v. Interstate Commerce l
Commission, 147 F. Supp. 622 (1956), aff'd 354 U.S. 917 (1956),
in support of the propositien that a, customer of a licensee has I
a valid economic interest entitling it to be an intervenor and to contest whether the administrative action is lawful.
In that case, however, the intervenor raised a matter which was within the jurisdiction of the agency, 12/ Even if an ecenemic interest alone and unrelated to matters within the jurisdicticn of the Ccesission were considered to be an inter-est which permitted intervention in a proceeding involving an application for a license pursuant to $ 104 b. of the Act, Piedment's petition to intervene should be denied since the ecenc=ic interest. identified by Pied =cnt is too reacte and speculative to justify intervention.
(See: The Good Music Statien, 6 Ad. L. 2d 930 (F.C.C.1957))
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