ML19327A599
| ML19327A599 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 08/01/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | PENNSYLVANIA, COMMONWEALTH OF |
| Shared Package | |
| ML19327A583 | List: |
| References | |
| CLI-80-19, ISSUANCES-SP, NUDOCS 8008060448 | |
| Download: ML19327A599 (7) | |
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METROPOLITAN EDISON COMPANY, ET AL.
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Docket No. 50-289 (Restart)
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(Three Mile Island Nuclear Station,
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Unit 1)
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MEMORANDUM AND ORDER On May 30, 1980 the Consumer Advocate of Pennsylvania (CAP) filed a petition for reconsideration of our decision in CLI-80-19, denying CAP's prior petition for financial assistance to intervenors who are participating in the Three Mile Island Unit i restart proceeding.
The major complaint relates to two alleged inconsistencies in the decision: (1) that although the Comission has stated in the decision that it "does favor funding intervenors..." (emphasis in original), the Commission ruled to the contrary; and (2) that although the Comptroller General ruled that there is no legal impediment to funding intervenors in fiscal year 1980, the Commission stated that " Congress has precluded such funding..." On June 16, 1980, the NRC staff filed its response in opposition 'to the petition for reconsideration.
CAP has not persuaded us to reconsider our original decision.
In stating that, " Congress has precluded such funding...," we did not intend to say that such funding was legally impossible.
However, as a practical matter, this Commission must work closely with the Appropriations 'and the Authorization 8008060
, Comittees of the Congress in setting its priorities and in defending its budgets.
While we are not legally bound to follow the expressions of committee intent set forth in the reports that acccmpany our appropriations bills, we would normally expect to do so rather than jeopardize relationships which affect every aspect of the Nuclear Regulatory Commission's operations.
While the Comission is comitted to continuing to try to develop intervenor funding and other forms of assistance to public participants in our processes, we have not reached a point at which we would contravene the clearly expressed intentions of both appropriations committees, especially when that intent has not been contradicted by the action of the Congress as a whole. /
The petition for reconsideraticn and other relief requested by CAP will be denied.
It is so ORDERED.**
For the Comi sion 1
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SAMUEL J.
CHILK Secretary of t@e Commission Dated at Washington, D.C.
this M day of August,1980.
In his advice on this question, the Comptroller General indicated that:
"*** [t]his [ ruling that intervenor funding is legal] does not mean that agencies are free to ignore clearly expressed legislative history applicable to the use of appropriate funds."
Financial Assistance to Intervenors in Proceedinos of Nuclear Regulatory Comission, 8-92288 (Jan. 25, 1980) at 6, quoting LTV Aeroscace Coro.
55 Comp. Gen. 307, 319 (1975).
- Section 201 of the Energy Reorganization Act, 42 U.S.C. 55841, provides that action-of the Comission shall be determined by a " majority vote of the members prsent."
Comissioner Gilinsky was not present when this item was affirmed, but had previously. voted by notation to approve this item.
Had Commissioner Gilinsky been present, he would have affirmed his prior vote.
Accordingly, the formal vote of the Commission was 3-0 in favor of the decision.
e Separate concurring opinion of Chairman Ahearne T concur in the decision to deny the petition.
The NRC is under clear Congressional direction this time not to provide such funding.
I disagree with that part of Commissioner Gilinsky's opinion that could be read as indicating the NRC staff should not follow either Congressional direction nor Comission policy.
The Commission must clearly establish policy, and the staff should then implement that policy. They did so in this case.
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j Separate Opinion of Comissioner Gilinsky I concur in the Comission's decision to deny the petition filed by the Consumer Advocate of Pennsylvania (" CAP") seeking reconsideration of the Comission decision to deny intervenor funding in the Three Mile Island Unit 1 proceeding.
I have concurred in deference to Congressional Committee direction not to provide such funding.
An aspect of our consideration of this petition -- the role played by the NRC staff -- requires further coment, however, because it has implications beyond the case before us.
Although I have agreed with the result advocated by the. staff, I am troubled by the narrow legal position it adopted in opposing funding for CAP. The question which the staff should have asked before taking a position in this case is "What best protects the public health and safety?" Had the staff been convinced that providing intervenor funding to CAP would be detrimental to the public's health and safety it should have opposed the petition on those grounds.
If che staff had found that it was unable to make this argument, it should have remained silent and allowed the applicant and intervenor to argue their respective cases. The NRC staff is not a party like any other.
Its obligation is to protect the public health and safety.
It is difficult to see how that mandate can be stretched to cover legal tactics designed to constrain the participation of the parties in a proceeding.
For the reasons stated in this concurring opinion denying the original CAP petition for funding, Comissioner Bradford shares the concern set forth in this opinion.
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UNITED STATES OF AMERICA g
NUCLEAR REGULATORY COMMISSION
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In the Matter of
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Docket No. 50-289 ggg
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CERTIFICATE OF SERVICE EEE[
I hereby certify that I have this day served the foregoing document (s)M
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the Office of the Secretary of the Commission in this proceeding in M
accordance with the requirements of Section 2.712 of 10 CFR Part 2 -
g Rules of Practice, of the Nuclenr Regulatory Co issien's Rules and gEgg.
Regulations.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter cf
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METROPOLITAN EDISON COMPANY, ET AL.
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Dceket No. (s) 50-289
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(Three Mile Island, Unit 1)
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SERVICE LIST Ivan W. Smith, Esq., Chairman Ellyn Weiss, Esq.
Atonic Safety and Licensing Board Sheldon, Harmon, Roisman and Weiss U.S. Nuclear Regulatory Co ission 1725 I Street, N.W., Suite 506 Washington, D.C.
20555 Washington, D.C.
20006 Dr. Walter H. Jordan 881 West Outer Drive Oak Ridge, Tennessee 37830 Dr. Linda W. Little 5000 Hermitage Drive Mr. Thomas Gerusky Raleigh, North Carolina 27612 Bureau.of Radiation Protection epartment f _nvironmental Resources Counsel for NRC Staff
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Box 2063 Office of the Executive Legal Director a
sburg, Pennsylvania 17120 U.S. Nuclear Regulatory Co= mission Washington, D.C.
20555 Honorable Mark Cohen 512 E-3 Main Capital Building Metropolitan Edison Company Harrisburg, Pennsylvania 17120 ATTN:
Mr. J.G. Herbein Vice President j
P.O. Box 542 Beading, Pennsylvania 19603 George F. Trowbridge, Esq.
Shaw, Pittman, Patts & Trowbridge 1800 M Street,'N.W.
Mr. John E. Minnich, Chairman Washington, D.C.
20036 Dauphin County Board of Concissioncrs Dauphin County Courthouse Karin W. Carter, Esq.
Front and Market Streets Ass 1stant Attorney General Harrisburg, Pennsylvania 17101 505 Executive House P.O. Box 2357 Walter W. Cohen, Esq.
Harrisburg, Pennsylvania 17120 Consumer Advocate Office of Consumer Advocate Strawberry Square, 14th Floor Harrisburg, Pennsylvania 17127 4
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50-289 (2) woard and parties centinued:
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Karin P. Sheldon, Esq.
Mr. Marvin I. Lewis Sheldon, Harmon, Roisman and Weiss 6504 Bradford Terrace 1725 I Street, N.W., Suite 506 L
Philadelphia, Pennsylvania 19149
. 20006 Washington. D.C.
Robert Q. Pollard, Esq.
Ms. Marjorie M. Aamodt R.D. #5 19320 609 Montpelier Street Coatesville, Pennsylvania Baltinore, Maryland 21218 Theodore A. Adler, Esq.
s Jordan D. Cunninghan, Esq.
Widoff, Reager, Selkowit:
Fox Farr and Cunninghan and Adler, PC 2320 North Second Street P.O. Box 1547 17105 17110 Harrisburg, Pennsylvania Harrisburg, Pennsylvania Ms. Susan R. Earley Dr. Chauncey Kepford
. 1751 East Granada Avenue. Act.
2 Dr. Judith H. Johnsrud Environmental Coalition on Hershey, Pennsylvania 17033 Nuclear Potver 433 Orlando Avenue 16801 State College, Pennsylvania 2
Ms. Holly S. Keck Legi:;1ation Chairman ANGRY 245 West Philadelphia Street Ycrk, Pennsylvania 17404 Mr. Steven C. Sholly 304 South Market Street 17055 Mechanicsburg, Pennsylvania i
John A. Levin, Esq.
Pennsylvania Public Utility Co=sission P.O. Box 3265 Harrisburg, Pennsylvania 17120 l
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