ML19317E355

Petition by Intervenors for Reconsideration of Final AEC Decision & Request for Oral Argument

ML19317E355
Person / Time
Site:	Oconee
Issue date:	01/12/1968
From:	Harris J, Tally J PIEDMONT CITIES OF NORTH CAROLINA, TALLY, TALLY & BOUKNIGHT
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 7912170556
Download: ML19317E355 (15)

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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.

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5,0-287 UNITS 1, 2 and 3)

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INTERVENORS' PETITION FOR RECONSIDERATION OF THE FINAL DECISION OF THE ATOMIC ENERGY COMMISSION AND REQUEST FOR ORAL ARGUMENT Cities of Statesville, High Point, Lexington, Monroe, Shelby, and Albemarle, and the Towns of Cornelius, Drexel, Granite Falls, Nciaton, and Lincolnton, all in North Carolina, Intervenors Jack R. Harris Suite 207 Stimpson-Wagner Building Statesville, North Carolina J. O. Tally, Jr.

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P. 0. Drawer 1660 Fayectoville, North Carolina Attorneys for Intervenors January 12, 1968

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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 (OCONEE NUCLEAR STATION

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50-270

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S0-287 UNITS 1, 2 and 3)

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INTERVENORS' PETITION FOR RECONSIDERATION OF THE FINAL DECISION OF THE ATOMIC ENERGY COMMISSION AND REQUEST FOR ORAL ARGlNENT Now Ceme the Intervenors, Cities of Statesville, High Point, Lexington, Monroe, Shelby, and Albemarle and Towns of Cornelius, Drexel, Granite Falls, Newton, and Lincolnton, all in North Carolina, and, pursuant to Section 2.771 of the Rules of Practice (Rules) of the Atomic Energy Commission (Commission) and other related rules, hereby, in ' apt time, petition for re-consideration (Petition) of the Final Decision (F. D.) in these Dockets of the Atomic Energy Commission, dated 3 January 1968, and request oral argument thereon.

THE CONTENT AND CONTEXT OF THE RULES AUTHORIZING THIS PETITION FOR RECONSIDERATION The Commission's Rules of Practice authorize this Petition

a for Reconsideration. Specifically, Section 2.771 provides:

" Petition for reconsideration.--(a) A petition for reconsideration of a final decision may be filed by a party within ten (10) days after the date of the decision. No petition may be filed with respect to an initial decision which has become final through failure to file exceptions thereto.

"(b)

The petition for reconsideration shall 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 oppositi.on 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.

"[Sec. 2.771 as amended March 3,1966, effective April 11,1965 (31 F. R. 4339).]"

This Petition is filed within the permitted ten (10) days.

Tile CONTENT AND CONTEXT OF THE RULES FIXING STANDARDS BINDING UPON TifE 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 oa review, but may limit the i'ssues to be reviewed and con-sider only findings and conclusions to which exceptions have been filed.

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The Commission may adcpt, modify, or set aside the findings, conclusions Tnd order in the initial decision, and will state the basis of its actioh.'

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, law or discretion presented;

"(2)

All facts officially noticed;

"(3)

The ruling on each material exception;

"(4)

The appropriate ruling, order, or denial of relief, with the effective date."

THE F0PM AND ARRANGE"?.NT OF THIS 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 Intervenors to be erroneous, stating specifically each such respect, and, under each such respective number, specifically state the ground (r) 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 SUCH ALLEGATIONS 1)

The Final Decision erred in overruling Intervenors'

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4 Exception 4 (F. D., pp 9-11*).

He overruling of Exception 4 was contrary to law.

Inter-venors will not here repeat their statements, grounds, arguments, and their entire presentation of Exception 4; but they do here specifically request that all such be again considered by the Commission as if fully re-written and included here.**

In addition, the overruling of Exception 4 was an error because the Commission did not comply with its own requirements in its treatment of the vital issue of both fact and law raised by Exception 4.

Section 2.770 (b) (1) of the Rules requires the Commission in a final decision in a proceeding, as to "...all"* material issues of fact, law or discretion presented..." to state "... findings and conclusions with the basis for them..."

page references to F. D. mimeo throughout.

Intervenors adopt the same procedure and make the same request with respect to each and all of the other numbered respects in which they allege that the final decision was in error, requesting the Commission to reconsider as if fully rewritten and included in this Petition those portions of Intervenors' Exceptions presentation and filing which are referenced at any point in this Petition.

all emphases, unless otherwise indicated, are Intervenors'.

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-S-In our Exception 4, we stated that:

"The lawful standard for determining whether or not the Pressurized Water Type of reactor utili-zation facility to be empicyed by Applicant has demonstrated practical value for industrial and commercial purposes is simply whether or not it is being sold by the manufacturer and bought by the purchaser, without Government subsidy to either, for use in the large scale generation and sale of electrical energy in the regular course of business, and not merely for the disposal of by-product energy."

The only basis or bases to be found in the cited pages of the final decision to support the Commission's rejection of our asserted standard are self-serving statements or self-definitions of the Commission or its staff. No statutory or decisional law (or indeed the authority of any commentator or person other than the Commission or its staff) is cited to support the Commission's interpretation of the statutory term " practical value".

This error of law and this deficiency of decision require reconsideration of such decision.

2)

The Final Decision erred in overruling Intervenors' Exception S.

The overruling of Exception 5 was contrary to law.

At page 4 of the Final Decision the Commission approaches consideration of' the meaning of "research and development", but neither there nor elsewhere in several following pages of diffuse

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discussion nor elsewhere in the final decision is there any dis-

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cussion, or basis for the Commission opposing, our interpretation of the foundational statutory definition involving " purpose" and on relation of that to Duke's " purpose" and the Record.

In our Exception 4 we stated:

"The controlling definition is given in Section 11x of the Act (42 U.S.C., 2014) as :

'The tem 'research and development' reans (1) theoretical analysis, exploration, or experimentation; or (2) the extension of investi-gative findings and theories of a scientific or technical nature into practical application for experimental and demonstration purposes, including the experimental production and test-ing of models, devices, equipment, materials, and processes.

'[Sec.11X as redesignated by Public Law 85-256, Act of September 2,1957, and Public Law 89-645, Act of October 13,1966.]'

This definition can contain and comprehend nothing more than '...the extension of investigative.

findings and theories of a scientific or technical nature into practical application for experimental and demonstration purposes...'

" Duke's application and Duke's evidence compre-hend and contain far more and predominantly more than this; they comprehend and contain the persuasive and predominant puroose of the production of commercial electric energy in enomous quantities; therefore, such application and evidence cannot be fitted into the statutory narrow definition of 'research and development'."

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7-Thus the Commission, again in this numbered respect, has not only erfe~d in law but failed 'to fulfill its own requirements-under Rule Section 2.770 (b) (1).

3)

The Final Decision erred in overruling Intervenors' Exception 6.

'Ihe overruling of Exception 6 was contrary to law.

Again, in addition, the Commission has not obeyed the requirements of Rule Section 2.770 (b) (1) in that there is no state-ment, much less basis, anywhere in the final decision, of the Commission's consideration and disagreement with the following:

A)

Our interpretation of the words " involved in the conduct of", with comparisons of Sections 31, 104(b),104(c) and other sections of the Act.

B)

Our citation of Section 50.24 of the Commission's own Regulations and our interpretation thereof.

C)

Our citation of the Commission's own inter-pretation of " practical value" as contained in its 1967 Supplement to the 1962 Report to the President

' (February 1967, p. 55).

D)

Our presentation of the Atomic Safety and

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Licensing Board's error in basing its Initial Dec[sion upon Duke's preposed " project" when the law and the Commission's own Regulations confine consideration to the " reactor".

(See Supplement A to Grounds for Intervenors' Exception 6).

E)

Our presentation of the significance of the word "use" which was the subject of. simultaneous Congres'sional amendments to Sections 101 and 103 of the Act.

(See Supplement B to Grounds for Intervenors' Exception 6).

Each and all of these raised issues of fact and/or law which the cited Rule required the final decision to treat in speci-fic statement of findings and conclusion with supporting basis.

4)

The ' Final Decision erred in overruling each and all of 1

Intervenors' Exceptions.

The overruling of each and all of Intervenors' Exceptions was contrary to law.

Underlying each and all of Intervenors' Exceptions are the interpretations which Intervenors have given in all evidence and in each of their filings throughout this proceeding of the interrelated sections of The Atomic Energy Act having to do with a

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whether Duke's Application (and in the light of the evidence in support thereof).under Section 104(b) of the Act must be dismissed,

as beyond the jurisdiction of the Commission; and be resubmitted, if at all, under Sectirn 103 of the Act.

If Intervenors an correct in these interpretations, it follows necessarily that each and all of Intervenors' Exceptions must be sustained and Duke's Application must be dismissed.

The determination of the correctness of these interpre-tations is a matter of such surpassing importance that the Commission should utilize every opportunity through the very last one to give plenary consideration to this matter before the Courts have to make review of it.

Also, here, as in each numbered respect above, there f.4 grave doubt that the Commission in its final decision has adequately or even at all considered, treated, ruled upon and justified by basis of ruling each and every Exception and issue of fact or law or discretion presented.

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 to its aid, in its discretion, oral argument before w

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5)

Above all, the Commission erred in failing to take into consideration antitrust aspects in the total of its licensing res-ponsibilities.

The final decision is silent on the antitrust aspects of the Commission's heavy responsibilities as the dispenser of licenses under Sections 103 and 104,(b) of the Act. We submit that this is a gaping, impermissibla void, considering the general policy declara-tions of the Atomic Energy Act and the several specific provisions pertaining to licensing, all of which make it incumbent on the Commission to protect the public interest against combinations and practices destructive of competition, a free economy, and fair play.

The clear spirit of these provisions is pro-public interest, pro-public welfare, pro-competition, and pro-fair play.

Indeed, these antitrust provisions are basic to our being in this case at all, for they appear to hold out to small municipals like us the only attain-able hope of a secure and meaningful sharing in the economies of the burgeoning atomic electric power industry.

That is, if only the Commission would vigorously, and yet sensitively, administer its wide and flexible powers and its Congressional mandate under the Act.

The fight that we are waging over whether Duke's application is a Sectibn 103 or Section 104(b) matter is in no sense an exercise

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. in legal technicalities or sophistry.

It goes to the very heart of the Commission's responsibilities to help provide a little place in the sun for municipals like ours which have so well served the public interest and welfare over the years.

We insist that Duke's application is a Section 103 matter, transparently dressed in flimsy 104(b) clothing. As such, it is subject to the more extensive and explicit antitrust safeguards of the Act.

But whether it is clearly a Section 103 matter, or a Sec-tion 104(b) matter with most of the anticompetitive dangers found in Section 103 situations, or just a plain Section 104(b) matter -- the Commission has the solemn statutory duty to look into the antitrust aspects of the specific situation before it and to fashion the terms and conditions of the particular license in accordance with what is best in the public interest.

For both the general and specific pro-visions aimed against monopolistic evils are pervasive of the entire Act (see, Sections 1(a),1(b), 2(c), 2(dO, 2(e), 2(g), 2(i), 3(d),

1 3(f), 102, 103, 104 (b), 105, 182). They differ only in the degree to which the Commission must apply them in any given licensing situa-tion.

Basically, Section 104(b) cases are no more clear of their command than Section 103 cases are.

In this respect, the Commission's responsibilities are essentially similar to those of other regulatory agencies. Securities 5 Exchsnge Commission v. New England Electric l

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m System, 384 U.S.176,183-185 (1966).

Unlis's this Commission recognizes these responsibilities' (and the hour is getting later by each case such as this), the Ameri-can public which has spent many billions and unselfish genius in the development of atomic energy will one day wake up to find that this scientific and economic achievement has been appropriated by monopoly.

We have here a contemplated $341,000,000 investment in atomic power plants by a hard ' nosed company which is sure of the wisdom of the enterprise -- not in the interest of science, mind you, but as a pro-fit-maker. Similar private capital developments have taken place all over the nation, and even bigger ones are lined up for the opportunity.

But, regrettably, the Commission remains insensitive to the anticompe-titive, anti-public interest evils which may be lurking in these ent r-prises. Our endeavors earlier in this proceeding to relate these dangers to this particular case and our insistence for an appropriate share in the enterprise through a non-profit company (Piedmont Cities Power Supply, Inc.) were rather lightly brushed aside.

i We urgently request that the Commission carefully consider its antitrust responsibilities in licensing cases, clearly delineate its policies thereon, and make specific findings appropriate to this cas e.

' die RELIEF SOUGHT Wherefore, the Intervenors pray that the Commission w-4 m

13-reconsider such final decision (allowing and ordering oral argu-ment thereon)"; and, in such reconsideration, that the Commission decide that the Intervenors are correct as to each and all of the above listed respects in which the Commission's final decision erred; and that, in such raconsideration the Commission dismiss the application of Duke Power Company as unjurisdictionally sub-mitted under Section 104(b) of the Act; and direct the resubmission of an application by Duke, if Duke so wishes, under Section 103 of the Act; Intervenors further pray that the Commission carefully consider its antitrust responsibilities in licensing cases, clearly delineate its policies thereon, and make specific findings appropriate to this case.

Respectfully submitted, City of Statesville City of High Point City of Lexington City of Monroe City of Shelby s

City of Albemarle Town of Cornelius Town of Drexel Town of Granite Falls Town of Newton Town of Lincolnton, North Carolina B

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Jack R. Harrrs*

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uite 207, Stimpson-Wagner Building Statesville, North Carolina l

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O. Drawer 1660 l

January 12, 1968 ayetteville, North Carolina i

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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; and that he has been employed as Special Counsel by each and all of the Intervenors herein; 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 said Intervenors; that he has been duly authorized by each and all of the Intervenors to file the aforesaid document; and that the contents thereof are true and correct.

A.

. O. Tally, Jr[V(

Subscribed and sworn to before me, a Notary Public of the District of Columbia, this 10th day of January,1968.

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.bnJ.s Notary Public My Commission Expires:

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