ML19317E329
| ML19317E329 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 01/12/1968 |
| From: | Harris J, Tally J, Tally J PIEDMONT CITIES POWER SUPPLY, INC., TALLY, TALLY & BOUKNIGHT |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 7912170547 | |
| Download: ML19317E329 (10) | |
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hv sd.AEC - k /5A/S (MITED STATES OF AMERICA ATOMIC ENERGY COMMISSION IN THE MATTER OF
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DUKE POWER COMPANY
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DOCKET NOS 0-269 (OCONEE NUCLEAR STATION
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50-287 UNITS 1, 2 and 3)
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. ;.,3 3,j, PETITION OF PIEDMONT CITIES POWER SUPPLY, INC.
TO
- nlE ATOMIC ENERGY COMMISSION TO RECONSIDER ITS FINAL DECISION (AND REQUEST FOR ORAL ARG11 MENT UPON SUCH RECONSIDERATION)
Jack R. Harris Suite 207 Stimpson-Wagner Building Statesville, North Carolina J. O. Tally, Jr.
P. O. Drawer 1660 Fayetteville, North Carolina Attorneys for Piedmont Cities Power Supply, Inc.
l January 12, 1968 7912170 N.3 h
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s UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION IN ' DIE MATTER OF
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DUKE POWER COMPANY
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DOCKET NOS. 50-269 (OCONEE NUCLEAR STATION
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50-270
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50-287 UNITS 1, 2 and 3)
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PETITION OF PIEDMONT CITIES POWER SUPPLY, INC.
TO
.THE ATOMIC ENERGY COMMISSION TO RECONSIDER ITS FINAL DECISION (AND REQUEST FOR ORAL ARGUMENT UPON SUCH RECONSIDERATION)
Now comes Piedmont Cities Power Supply, Inc., (Piedmont),
and, pursuant to Section 2.771 of the Rules of Practice (Rulea,) of the Atomic Energy Commission, (Commission), and other related rules, hereby, in apt time, petitions for reconsideration (Petition) of the Final Decision (F. D.) in these dockets of the Atomic Energy Commission, dated 3 January 1968, and requests oral argument thereon.
'IHE CONTENT AND CONTEXT OF 'IHE RULES AlJniORIZING THIS PETITION FOR RECONSIDERATION The Commission's Rules of Practice authorize this Petition for Reconsideration. Specifically, Section 2.771 provides:
" Petition for reconsideration.--(a) A petition for reconsideration of a final decision may be filed O
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by a party within ten (10) days after the date of the decision. No petition may be filed with respect j
to an initial decision which has become final through failure to file exceptions thereto.
""'(b)
The petition for reconsideration shall
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state specifically the respects in which the final decision is claimed to be erroneous, the grounds of the petition, and the relief sought.
Within seven (7) days after a petition for reconsideration has been filed, any other party may file an answer in opposition to or in support of the petition.
"(c) Neither the filing nor the granting of the petition shall stay the decision unless the Commission orders otherwise.
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"(Sec. 2.771 as amended March 3,1966, effective April 11,1966 (31 F. R. 4339).]"
This. Petition is filed within the permitted ten (10) days.
'IHE CONTENT AND CONTEXT OF 'IHE RULES FIXING STANDARDS BINDING UPON 'IHE COMMISSION IN CONSIDERING AND RENDERING A FINAL DECISION The Commission's Rules of Practice fix as binding upon the Commission the standards and process of considering and render-ing a final decision in a proceeding such as is being had in these dockets. Specifically, Section 2.770 provides:
" Final decision.--(a) the Commission will ordinarily consider, the whole record on review, but may limit the issues to be reviewed and con-sider only findings and conclusions to which exceptions have been filed.
"(b) The Commission may adopt, modify, or set aside the findings, conclusions and order in the I
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initial decision, and will state the basis of its action.
The final decision will be in writing and will include:
"(1)
A statement of findings and conclusions, with the basis for them on all material issues of fact,"aw or discretion presented; l
"(2)
All facts officially noticed;
"(3)
The ruling on each material exception;
"(4) The appropriate ruling, order, or denial of relief, with the esctive date."
' DIE FORM AND ARRANGEMENT OF 1HIS PETITION To achieve compliance with Rule Section 2.771 (and related Rules), to avoid repetition and duplication, and to be as concise as possible, this Petition, in its following parts, will number con-secutively each respect in which the final decision is claimed by Piedmont to be erroneous, stating specifically each such respect, and, under each such respective number, specifically state the ground (s) supporting each such asserted error.
A separate, final conclusion or prayer will state speci-fically the relief sought.
RESPECTS IN WHICH THE FINAL DECISION IS ERRONEOUS, WITH SUPPORTING GROUNDS FOR SUOi ALLEGATIONS 1)
The Final Decision erred in overruling Piedmont's Excen-tion to the Order of the Atomic Safety and Licensing Board denying O
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J Piedmont intervention in that the Commission in such overruling has engrafted a requirement of intervention additional to those prescribed by Congresa and not authorized by Congress so to be added and engrafted.
On pages 13-15 of the Final Decision
- the Commission sought to deal with Piedmont's right to intervene.
Explicit on those pages (as in the Board's Initial Decision to which references are made in these pages of the Final Decision) is the Commission's assumption and declaration that the " interest"4 which justifies (and under 42 U.S.C., Sec. 2239(a) compels and allows) intervention of Piedmont must be a "present" interest.
There is no such requirement in the Act and the Commission has not cited any authority for, or sustained, any reason for add-ing and engrafting this requirement. The cited Section of the Act requires merely an " interest". Such an' interest can be presently possessed or be one which, of right, may be in future possessed.
The Commission has, therefore, ruled contrary to law; and, furthermore, has not fulfilled its own above-quoted Rule's require-ment of providing a basis for its ruling on a vital issue'of law raised by Piedmont.
- page references to F. D. mimeo throughout.
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The Final Decision erred in overruling Piedmont's Excep-tion to the Order of the Atomic Safety and Licensing Board denying-Piedmont intervention in that the Commission in such overruling has held that Piedmont could not have been prejudiced by denial of inter-vention because Piedmont's interests were the same as those of the eleven cities granted intervention and their counsel the same, with-out recognizing that Piedmont had an independent, statutory right to intervene and that Piedmont, if allowed to intervene, could pre-sent evidence, issues, and considerations different from and addi-tional to those of the eleven cities (F. D. p.15).
It is surely unprecedented and unique to have a ruling by a responsible agency that one entity which has a full legal right to intervene in a proceeding may be denied such intervention be-cause other intervenors could have represented its interests.
This ruling is contrary to law and contrary to the above cited Commission's own Rule for the content of a final d,ecision.
The Commission cited no authority or basis fc7 this ruling, and can cite none.
In this connection, we respectfully refer the Commission 9
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- to the petition for reconsideration filed herein by the eleven intervenor municipalities, particularly Part 5 thereof dealing' with antitrust matters. Our role and interests in participating in this proceeding, while inseparable from those of the Cities in certain basic respects, are nevertheless not entirely co-ex-tensive, either as a matter of assisting the Commission in uncovering antitrust problems or in helping it fashion the appropriate relief for Piedmont and the eleven intervenor municipalities.
3)
The Final Decision erred in overruling Piedmont's Excep-tion in that the law gives Piedmont an absolute right to intervene.
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7-To avoid repetition, Piedmont here asks that its entire statement (with supporting grounds, citations and arguments) of be here considered as if fully rewritten and in-its Exception,,
cluded here.
The statute governing the Commission's decision on Piedmont's intervention gives such absolute right, as fully de-tailed in Piedmont's Exception filed with the Commission.
In addition the Commission is running counter to the overwhelming current of decisional law, which is liberalizing and broadening the right of intervention in proceedings of this type.
45 North Csrclina Law Review 998 (June 1967) 81 Harvard Law Review 308 (December 1967) 81 Harvard Law Review 221 (November 1967)
Accordingly the conclusion of the Commission is con-trary to law and its own cited Rule for final decisional content.
All of which, together with all of the foregoing, recommend the obvious conclusion:
No one is disadvantaged and much may be set lawful and right if the Commission reconsiders its final decision (permitting and ordering t'o its aid, in its discretion, oral argument before ultimate decision is rendered).
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.8-111E RELIEF SOUGHT Wherefore Piedmont prays that the Commission reconsider its final decision (allowing and ordering oral argument thereon) and that the Commission, following such reconsideration, 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 se that Piedmont may present evidence and examine wit-nesses and cross-examine witnesses and participate as fully in, and have equal opportunity to build the record in, this proceeding as any other party.
i Respectfully submitted, P"
ONT CITIES POWER SUPPLY, INC.
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S 4 e 207 Stimpson-Wagner Building Statesville, North Carolina j
Tally, Jf R
- 0. Drawer f660 ayetteville, North Carolina 12 January 1968 e
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VERIFICATION DISTRICT OF COLLMBIA:
J. O. Tally, Jr., being first duly sworn, states that he is an attorney duly admitted to the practice of law in the State of North Carolina; that he has been employed as Special Counsel by Piedmont Cities Power Supply, Inc.; that he has read the foregoing document and knows the contents thereof; that he has subscribed and executed said document as a duly authorized attorney for Piedmont Cities Power Supply, Inc.; that he has been duly authorized by Piedmont Cities Power Supply,Inc. to file the aforesaid document; and that the contents thereof are true and cc,rrect.
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.O.TalygfL Subscribed and swom to before me, a Notary Public of the District of Columbia, this 10th day of January,1968.
hw Notary Public Mv Commission Expires:
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