ML19317E131
| ML19317E131 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 08/25/1967 |
| From: | Engelhardt T US ATOMIC ENERGY COMMISSION (AEC) |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 7912130845 | |
| Download: ML19317E131 (23) | |
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ATOMIC ENERGY COMMISSION orne* er me :vret.ry r a n a e sus:,
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N vy areau q}fJt In the Matter of
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DUKE PCWER COMPANY
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Docket Nos. 50-269
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50-270 l'
(0conee Nuclear Station, Units )
50-287 1, 2 and 3)
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ANSWER OF Tile AEC REGULATORY STAFF i
TO TifE JOINT PETITION OF PIEDMONT CITIES POWER
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SUPPLY, INC., AND ELEVEN PIEDMCJT CITIES FOR LEAVE TO INTERVENE, AND MOTION TO DISMISS THE APPLICATION OF DUKE POWER COMPANY I
Introduction On July 27, 1967, a notice of hearing to consider the appli-cation filed under 5 104 b.' of the Atomic Energy Act of 1954, as amended, (Act) by the Duka Power Company (Duke) for a provisional,-
construction permit for a nuclear reactor was published in the Federal Register (32 F.R. 10996).
4 On August 11, 1967, the Piedmont Cities Power Supply, Inc.,
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and eleven Piedmont Electric Cities (petitioners) filed a timely Joint Petition for Leave to Intervene (joint petition) in the l
1/ City of Statesville, City of High Point, City of Lexington, City of Monroe, City of Shelby, City of Albemarle, Town of Cornelius, Town of Drexel, Town of Granite Falls, Town of Newton and Town of Lincolnton.
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proceeding, dated August 10, 1967, pursuant to 5 2.714 of the Comraission's " Rules of Practice", and a Motion to Dismiss the Application of Duke Power Company (motion).
Duke filed an answer on August 14, 1967, objecting to the granting of the joint petition or consideration of the motion. At the prehearing conference in this proceeding on August 15, 1967, the regulatory staff presented oral argument in opposition to the joint petition and motion.
At the conclusion of the prehearing conference, the atomic safety and licensing board (Soard) granted the petitioners until August 25, 1967, to file a reply. On August 18, 1967, in a letter addressed to counsel for the regulatory staff, the chairman of the coard granted the regulatory staff until August 25, 1967, to present a brief on its position.rogarding the joint petition and motion.
The joint petition alleges that the petitioners are parties whose interests vill be affected by the proceeding in that their objective in acquiring an undivided interest in the' Ocortee Nuclear Station for the purpose cf obtaining lower power rates depende initially upon the dismissal of Duke's application for a construc-J tion permit and license. Petitioners state that they oppose Duke's 3
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, diction to grant the "research and development licenses prayed for under 5 104 of the Atomic Energy Act" and allege that their intercats wm21d be adversely affected by Commission action unless the motion to dismiss the application is granted.
The motion to dismiss the application alleges that the Commission has no jurisdiction to issue a construction permit or license to Duke pursuant to 5 104 b. of the Act for the pro-posed Oconce Nucles. Station sinco the Company " seeks to build said station for commercial purposes, and not for reocarch and development purposes". The petitioners allege, auch being the cane, that the Oconee Nuclear Station may only be " lawfully licensed" purcuant to 5 103 of the Act.
II The Petitioners Have Not Stated an Interest in the Proceeding Which Would Permit Intervention s
Section 2.714(a) of the Co= mission's " Rules of Practice",
10 CFR Part 2, sets forth the requirements which govern inter-vention in any Commission proceeding and provides in pertinent part s
"5 2.714 Intervention.
e (a) Any person whose interest may be affected by a proceeding and who desires to participate as a party shall file a written petition under,
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oath or a ffirmation for lonvc to intervene not inter than seven (7) dayn before the commence-ment of the hearing or within auch other time as may be specified in the notico, or as permitted by the presiding o fficer. The petition shall set forth the interest of the petitionce in the proceeding, how that interest may be affected by Commission action, and the contentions of the petitioner."
It in well settled in Commission cases that to intervene a r
person must show a particular interest within the scope of the issuen.which would be affected by the proceeding. Matter of Walkar_ Trucking Company, 1 AEC 103.
In denying a petition to intervene in that proceeding, the Commission held "13.
The Commission's Rulco of Practico require that a person in order to intervene in an adjudicatory proceeding, must demon-strato an interest which may be affected by the proceeding.
"14 The law is clear that a member of the public, who may have only an academic or 3
2 technical interest in a proceeding or a co==on concern for obedience to the law, has not such an immediate and substantive interest as to justify standing to intervene 2/...
"2/ Caoital Broadcasting Co., 2 Ad. L. (2d) i 704, 706-707 (F.C.C. 1952); Kansas State College o f Acriculture, 2 Ad. L. (2d) 738, 739 (F.C.C. 1952) ; Houston Texas Oil & Cas Corp., 15 F.P.C. 1570, 6 Ad.,
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(2d) 590 (1956); The Good Music Station, 6 Ad. L. (2d) 930, 931-932 (F.C.C.1957);
accord, Singer & Sons v. Union Pacific R. R. Co., 311 U. S. 295, 303-304 (1940)."
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. This rule was followed generally in Matter of Elk River Power Demonstration Reactor Pronram Proicct, 1 AEC 266; Matter _
of Yankee Atomic Electric Company, 1 AEC 296; 1 AEC 326; Matter o f Pacific 'Cas & Electric Company, 2 AEC 173; Matter of Philadelphia Electric Company, 2 AEC 54, Goldborn v. United States, appeal dismissed June 5,1962 (3rd Cir.), cert. denied 371 U. S. 902; Matter of Atcor. Inc., Docket F-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 Concolidated Edison Company, 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 sec'urity and radiological health and safety. This is confirmed by a read-ing of the terms of SS 104 and 189 of the Act and by consistent decision in Commission regulatory proceedings. Petitions for Icave to intervene and other procedures which have attempted to '.
raise questions in Commission cases outside the scope of the*
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See Matter of Jersov Contral Power and Linht company, 2 AEC 446, 447 (consideration of thermal effects excluded); Matter of Mianara Mohawk Pouer Corporation, Docket No. 50-220, Initial Decision, pp.11-12, April 1,1965, 3 AEC (consideration of whether grant of a.
f construction permit constituted support of segregation excluded);
4 Matter of Consolidated Edison Company of New York. Inc., Docket..
4 No. 50-3, Memorandum and Order, November 24, 1965, 3 AEC (consideration of thermal effects excluded); Matter of Wisconsin-Michigan Power Company, Docket No. 50-266, Order Denying Inte,rven-tion, June 20, 1967, 3 AEC (consideration of aesthetic and recreational and land use values'of lakeshore environs excluded).
2/
It is noted that persons alleging economic injury or adverse affects upon a segment of the public of which they are a part have been admitted as parties to agency proceedings and granted the right to seek judicial review under statutes granting a much broader scope for agency action than that provided in 5 104 b.
E.g., F.C.C. v. Sanders Brothers, 309 U. S. 470 (1940); Scenic Hudson Preservation Conferende v.
F.P.C., 354 F. 2d 608 (C.A. 2nd. 19 65), cert. dented sub nom.
Consolidated Edison Corp. v. Scenic Hudson Preservation Con-forence, 384 U. S. 941 (1966); office of Communication of the United Church of Christ v. F.C.C., 359 F. 2d 994 (U. S. App.
D.C. 1966). These cases are inapposite, however, because the alleged injury or adverse affect was a proper subject of con-sideration and action by the agency under the particular statutory provision governing those cases, but such matters are not subjects for consideration in a 5 104 b. proceeding.
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7 The fundamental question in this proceeding is whether the petitioners have asserted sh interest which provides grounds for intervention under these rules.
The petitioners allege that their interest would be "adver'sely s.
affected by Commission action unless such motion to dismiss (the application) for lack of jurisdiction is granted..."
The conten-tions of the petitioners as to how their interests may be affected by the proceeding are not specified although they appear to involve alleged anti-trust questions concerning the economics of power distribution and the methods whereby power will be distributed in the service areas of the petitioners.
Just as the Act confers upon the Commission no authority or responsibility to consider such things as thermal effects in a proceeding leading to the issuance of licenses under 5 104 b.,
this provision does not permit the Commission to consider anti-trust" questions or the financial or economic effect son third
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partie s in the granting of such a license. The fact that such
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" anti-trust'* questions may not be considered in S 104 b. pro-
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i caedings has been recognized in a decision of this board in this
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case and in a decision by another board in the Vermont Yankee caso. M.1tter of Vermont Yanfce Nuclear Power Corporation, Docket No. 50-271, Prehearing Order Denying Joint Petition for Leave to Intervene and Permitting Limited Appearance, July 31, 1967, 3 AEC
_ ; Matter o f Duke Power Comonny, Docket Nos. 50-269, 270 and 287, Order Denying Requests and Dismissing Protest of Piedmont Electric Citics, August 9, 1967, 3 AEC It is the position of the staff that these board decisions are fully supported by the Commission precedents cited above.
Since the petitioners' stated interest do not reiste to matters involving radiological health and safety or common defense and 2
security and involve only matters which are not pertinent to a proceeding under i 104 b., the petition should be denied.
s 1/ Because the economic interests asserted by the petitioners here were included at least implicitly in the " anti-trust" contentions previously raised by the petitLa ners in this proceeding, the question of.their right to intervene under the joint petition could be considered res adjudicata.
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III The Proceeding is Properly Considered Under 5 104 b. of the Act As a result of the proposed motion of the petitioners to dismiss the proceeding, the question of whether the proceeding properly comes under 5 104 b of the Act was discussed at the prencaring conference.
It was also suggested that dismissal s
might result since the case allegedly does not fall specifically under one of the other two applicable subsections of $ 104.
It is the staff's position that the application not only falla properly within i 104 b., but could not come under any other subsection of 5 104 or under 5 103.
4 Under the statutory scheme established by Congress for licensing reactors, reactors can be licensed only under 5 103 4/
and $ 104.
In 5 104, Congress has categorized three basic i
types of reactors:
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Section 104 a. reactors are those for use in medical y
therapy.
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4/ " Testing facility" is defined in i 50.2(r) of the Comission's, l
regulations,10 CFR Part 50.
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Section 104 b. reactors are those power reactors which demonstrate potential' commercial and industrial advan e.
tages in the generation o f power.
Section 104 c. reactors are those research and teating 2/
facilities, not designed for the generation of power, which may be used for research and training purposes.
l The fundamental difference between i 104 b. reactors and S 104 c. reactors is that ths latter are " pure" research and development tools, while the former are designed primarily to demonstrate commercial and industrial utility, as well ac to s/
permit " pure" research.
Section in3 reactors are those t;y44 of power reactors whose i
practical value for commercial and industrial purposes haue been demonstrated to the extent that the Commission determines that s
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i 5/ See generally " Improving the AEC Regulatory Process". Joint Committee on Atomic Energy Print, Volume II Appendix, pp. 96,99-100, March 1961.
f/ Seccion 104 c. specifies that it involves "... facilities useful in the conduct of research and development activities of the types specified in Section 31 and which are not facilities of the j
type specified in subsection 104 b."
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i a-such reactors no longer need be considered developmental. No type of reactor may be licensed under i 103 until its practical value has been established as a result of construction and
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operation under i 104 b.
This interpretation was specifically recognized in the legislative history. In discussing the facility licensing
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scheme of the bill, the then Chairman of the Joint Committee, Representative Cole, stated during the Debates:
... After a reactor has been tested out under section 104(b) and its practicability as an atomic reactor has been established, and after it has been demonstrated that this force can be used economically competitively, the Commission then makes a determination that such a reactor asatypedoeshavecommercialutility...."Z/
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100 Cong. Rec.11023 (Daily Edition); III Leg. Hist. 2875.
See also "S. 3323 and H.R. 8862, To Amend the Atomic Endrgy Act of 1946", Hearings Before the Joint Committee on Atomic Energy, 83rd Cong., 2nd Sess., p. 921, June 8,1954, 2 Leg.
Hist. 2559, wherein the section 102 finding was characterized by Levis L. Strauss, then AEC Chairman, as a " condition precedent" to the issuance of a section 103 license.
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Since the Comission has not made a i 102 finding for any type of reactor and since the question of whether such finding e
should be made has recently been formally considered and rejected by the Comission on two occasions in rule making proceedings, /
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it is manifest that no proceeding can be held, or license issued, under 3 103 and that $ 103 is not material to this proceeding.
This was recognized by the board and conceded by the petitioners at the prehearin:; conference.9/
I The petitioners, however, argue that the proceeding does not i
fall within $ 104 b. of the Act inasmuch as the Duke application i
involves " commercial" reactors rather than ones engaged in "research and development". This contention demonstrates the i
petitioners' lack of understanding of the scope of $ 104 b.
As If' noted above, i 104 b, covers those power reactors whose construc-tion and operation lead to a demonstration of practical value l
which convert the licensing of other reactors of the same i.ype to 5 103.
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. Determination Regarding Statutory Finding of Practical Value, December 29,1965 (Docket Nos. RM-102-1; PRM-102-A), 31 F.R.
'221, and Notice of Denial of Petition for Rule Making, December 21,1966, 31 F.R. 16732.
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_ 2/ ' :Prahaaring Transcript, pp. 39, 51.
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l A reading 'of the icgislative history of the Act indicates that the licensing of power reactors would be conducted under i 104 b. until a 5 102 finding is made by the Commission for 191 a particular type of reactor.
The legislative history further 10,/ The following exchange took place between Representative Holifield, AEC Chairman Lewis Strauss, and AEC General Counsel, William Mitchell, during the course of the Joint Committee hearings, "S. 3323 and H.R. 8862, To Amend the Atomic EnerLy Act of 1946":
Representative Holificid: "All right.
Now this brings us to the fact that you have never been abic to make a finding that we have reached a point of practical value, and therefore you have not been abic, to give the 7b (referring to the 1946 Act) report because you have never been able to make that finding?"
Mr. Strauss: "If the word ' practical' is also construed to mean economic that is true."
Representative Holifield:
"Do you think that this will preclude you from issuing any licenacs under section 103 then until it has been established to be of practical value?"
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Mr. Strauss: "That would be my lay construction.
- I would like to ask counsel."
Mr. Mitchell:
"I think that is the result, yes, sir.
In the meantime, presunably we would be issuing licenses under section 104."
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4 indicates a Congressional recognition that the size of a reactor would not prevent its being licensed under S 104 b.,11' a point raised by petitioners,12/ and also that a 5 104 b. Licensce' may
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t Mr. Mitchell:
"(104(b)) is the type which would lead to the demonstration of practical value.
(b) as I see it are these intermediate reactors which are on the way to the 103 situation."
(Hearings, JCAE, 83rd Cong., 2nd Sess., p. 921, June 8,1954; 2 Leg. Hist. 2559.)
M/ Representative Holifield: "Section 104 we pretty well discussed in our previous discussion, but I point out one thing, that there in no limitation on the size that those research and develooment activitics can be licensed for; that it goes far beyond the prototype sisc and goes
- into an unlimited size;..." (Emphasis added.)
(Hearings, j
'JCAE, 83rd Cong., 2nd Sess., p. 925, June 8, 1954; 2 Leg..
.Jtist.25 63.)
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use its facility for the generation of electricity, another n/
point raised by petitioners.
The petitioners, however, argue that these facilities must be considered as "comercial" because the applicant used that 15/
term in an annual report.
The fact that individual companies might consider construction and operation of a power reactor as t
an acceptable business venture is not to be equated with the economic utility which must be demonstrated before a finding of practical value can be made by the Comission under the Act. -
In the rule making proceeding on practical value previously referred to, the " Staff Memorandum", adopted by the Comission as the basis for its decision, stated that:
13/ Representative Cole (N.Y.) on the floor, stated that a licensee could use its reactor to generate electricity.
Although he did not specifically refer to Section 104 "o.,
it appears clear from the conter.t of his statement thdt this is the section to which he referred.
(100 Cong.
Rec. 11023; 3 Leg. Hist. 2875, July 23,1964.)
e M/ Prehearing Transcript, p. 20.
1_5/ Prehearing Transcript, pp.14-15.
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"The willingness of utilities to purchase nuclear plants and of reactor manufacturers to warrant the plants is a reficction of the -
acceptance of what may be considered reason-abic business risks, but does not necessarily constitute a suf ficient assurance that the plants will in fact perform as warra tod or will otherwise meet expectations."35 The petitioners also apparently assume that if one power reactor can be so categori:cd, all other power reactors must also be "of practical value".
This position everlooks the facts
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of nuclear technology. Even if a finding of practical value -
considering both technical considerations and economy - could be made at the present time for those power reactors which havo
,j had operating experience or which are just now going into i
operation, it would be wholly inapplicable to the fa.lities involved in the instant proceeding.
At the time the Commission considered the petition for rule
's making involving practical value, the largest boiling water reactor in operation was rated at 200 net megawatts electrical (FM(e)) and the largest pressurized water reactor at 255 FM(e) i J1/ 31 F.R.' 223.
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The reactors in the 450 W (e) 18/
range are juac beginning operations.
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The Oconce reactors are expected to produce approximately I
850 W (e). As such, the reactors are designed to generate creater quantities of power than any reactor now in operation..,
l In addition, they present in the first instance a design incorporating novel characteristics for a pressurized water reactor. Other pressurized and boiling water reactors of similar power ratings are under construction and in the planning ctage, but, of course, have produced no operating experience.
To design reactors of such increased power production capability, the nuclear industry has necessarily made significant extrapolations from existing empirie data throughout the spectrum of nuclear technology, involving, for example, increased power density, fuel burnup and the ability of engineered safeguards to kegp pace with such advances. To prove out these extrapolations is the kind of research and development leading to the demonstration of practical value to be performed under 5 104 b. licenses.
a E / 31 F.R. 223.
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The decisions to build such reactors reflect sound technical Judgment, and no doubt equally sound business judgment, but they cannot be said to have demonstrated practical value. The Commission recognized the validity of this point in the rule making proceeding.
The staff memorandum adopted by the Commission stated:
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"...at the present time, there is not enough information available from which to extrapolate technical and performance characteristics and associated economics with sufficient assurances h
to provide a sound basis for makf.ng the statutory finding of practical value."19/
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In its Determination, the Commission emphasized the essentiality of operating data to the finding of practical value.
In'its Detc.rmination, !.he Commission stated:
t "Without the operating information the intermediate sized plants are expected to provide, we are not prepared to maka a statutory f'.nding on the basis of demonstrated results of the currently operable.,
plants that plants at least three times larger than 200 not h"J(e) are of practical value within j7 the meaning of Section 102."30f.
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Since the Comission's Determination, little additional operating information has been generated by the intermediate,;
range facilities. Certainly if the Co= mission cannot make a finding of practical value for reactors in the 600 >M(e) range 5
until operating experience is available, it cannot possibly make such a finding for reactors in the 800-1000 >M(e) range.:
For these reasons, it is clear that the Oconee facilities can.
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i be considered only under i 104 b. of the Act.
IV Motion to Dismiss
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The making of a motion in a proceeding is a right reserved to a party. Since the petitioners are not parties to the pro-2_1) At the prehearing conference, it was suggested that a reactor project could not come within 5 104 b. unless a specific research and development program for the project was involved.
There happen to be research and development items in the Duke project. However, as shown above, to make the finding of practical value, the Commission must determine that the je comercial and industrial utility of types of reactors has been demonstrated.
In this sense, therefore, all power j
reactors are ipso facto developmental until the finding is i
'.i made. Therefore, whether research and development items -
exist in a specific power reactor case is irrelevant to j
whether the matter is properly considered under 5 104 b.,
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n ceeding, they have no standing to file 4 motion.
See Matter of Consolidated Edison Coman1 of New York, Inc., Docket Nc.
50-247, "Mc:norandum and Order", December 20, 1966, 3 AEC
- Matter of Pacific Cas and Electric Comonny, 2 AEC 172-173; Matter of Elk,
River Power Demonstration Reactor Program Project, 2 AEC 245.
In any event, even if the petitioners had standing as parties
,c to make the motion to dismiss the proceeding, it would have to; be denied for complete lack of merit on the grounds set forth in Section III above.
s' V
i, Certification r
i However, the joint petition and motion challenging the Commission's authority and established policy with respect to the granting of licenses pursuant to S 104 b. of the Act and s
present major and novel questions of policy and law involving
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the Commission's jurisdiction. For these reasons, it is respect-t-
fully suggested that the board in this proceeding may wish to 1
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l certify a question to the Commission for guidance. Such action s
I would be consonant with the instructions provided to the board in the Commission's Statement of General Policy, Appendix A, I
10 CFR Part 2, which provides in Section III(g)(2):
"A question may be certified to the Commission' for its determination when the question is beyond the board'c authority, or when a major or novel question of policy, law or procedure is involved which cannot be resolved
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except by the Comission 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 1
interests of a party. For exampic, a board may find it appropriate to certify novel questions to the Commission as to the regu-latory jurisdiction of the Commission or the right of persons to intervene."
In the event the board wishes to certify the matter, we suggest the following question would be appropriate:
s "Whether the Petition to Intervene and Motion
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to Dismiss filed by the petitioners should be granted in this proceeding for the issuance of provisional construction permits pursuant to Section 104.b. of the Atomic Energy Act of 1954, as amended."
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Conclusion For the reasSns stated, the Petition for Leave to Intervenc and the Motion to Dismiss should be denied, or, if the board
- wishes, the question should he certified to the Com:21ssion.
Respectfully submitted, d
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I Thomas F. Engelhardt Counsel j-r AEC Regulatory Staff Of Counsel:
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Troy 3. Conner, Jr.'
Trial Counsel p
4 Robert E. Turtz 8
j Attorney 4
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Dated at Bethesda, Maryland
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.d this 25th day of August, 1967.
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION 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 (Oconec Nuclear Station, Units
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50-287
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1, 2 and 3) e
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CERTIFICATE OF SERVICE I hereby certify that copies of the " Answer of the AEC Regulatory Staff to the Joint Petition of Piedmont citics Power Supply, Inc.,
and Eleven Piedmont Cxtics for Leave to.ntervenc, and Motion to Dismiss the Application of Duke Power Company", dated August 25, 2<
1967, in the above-captioned mattcv, were served upon the following by deposit in the United States mail, first class or air mail, this 25th day of August, 1967:
Samuel W. Jensch, Esq.
Jack R. Harris U. S. Atomic Energy Commission Suite 207 Washington, D. C.
20545 Stimpson-Wagner Building Statesville, North Carolina Dr. John Henry Buck The Budd Company J. O. Tally, Jr.
Phoenixville, Pennsylvania P. O. Drawer 1660 Fayetteville, North Carolina Dr. Hugh Paxton Los Alamos Scientific Laboratory Spencer W. Reeder Los Alamos, New Mexico Spencer Building St. Michaels, Maryland a Dr. Clarke Williams Deputy Director A. A. Wells, Esq.
Brookhaven National Laboratory.
Chairman, Atomic Safety and
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- ~ Upton, Long Island, New York Licensing Board Panel l' F,
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U. S. Atomic Energy Commission Harry M. Lightsey, Jr.
Washington, D. C.
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Assistant Attorney General ~q; j
State of South Carolina Stanley T. Robinton, Jr.
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U. S. Atomic Energy Cosmission
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Washington, D. C.
20545 William H. Grigg, Esq.
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- A Duke Power Company
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422 South Church Street Charlotte, North Carolina 28201 Thomas F. Engelhardt Counsel s
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