ML19329C664
| ML19329C664 | |
| Person / Time | |
|---|---|
| Site: | Beaver Valley, Davis Besse, Perry  |
| Issue date: | 01/21/1974 |
| From: | Grant G US ATOMIC ENERGY COMMISSION (AEC) |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| Shared Package | |
| ML19329C665 | List: |
| References | |
| NUDOCS 8002180171 | |
| Download: ML19329C664 (4) | |
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Uti1Tb' STATES OF A..ICA n.:,3. 5'JTf fil. 5 0- 1 W 4
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d In the Matter of
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'v iio THE TOLED0 EDIS0f! CCitPA !Y AND
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THE CLEVELA :D ELECTRIC ILLU:1Ii!ATI;;G
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Docket tio. 50-346A CC:liA.lY
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(Davis-Besse Nuclear Power Station)
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Messrs. Raben Goltero. Arnold Fiel&an. Dr./id C. Hielnfeli.,
Judge Herbrt P.. Whit.
focert D. Hart, for petition 0r
. City of Cleveland.
Mr. Phillip F. Ardery, for petitioner American Municipal Po;er-Chio, Inc.
ikssrs. Bruce L!. Churchill. and Jay E. Silbeca, for the applicants.
Mr. Beni. min M. Vogler, for the AEC Regulatory Staff.
MEMCRANCUt A';D CRDER Petitions for leave to intervene and requests for a hearing in this antitrust proceeding have been sub6itted by American Municipal Powcr-Chio, Inc. (AMP-0) and by the City of Cleveland (Cleveland).
The applicants havs urged that both petitions be denied; the regulatory staif has recomended that AMP-0's request be rejected, but that additional informatice. be required prior to a final ruling on Cleveland's petition.
The A'.torney
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General's letter of advice, which was published in the Federal Register (36 F.R.17888), concluded that "we presently are of the view that an I
antitrust hearing would not be required..."
Upon consideration of the complete record to date, the Comission agrees with the staff that the AMP-0 petition must be. denied, both because it was not timely submitted and because it otherwisE fails to comply with the provisions of 10 CFR 2.714.
The deadline for filing petitions, estab-lished in the Commission's Federal Register notice, was October 4,1971; i
AMP-O's petition was submitted on April 4, 1973. Moreover, petitioner failed to state any " good cause," under 10 CFR 2.711 and 2.714, for the inordinate delay -- in fact, no reason whatsoever was given.
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Substantively, the petition at most can be construed as a statement of petitioner's " interest" in this proceeding.
Section 2.714(b) of the Commission's " Rules of Practice" additionally requires a petition to set forth "how that interest may be affected by the results of the proceeding, i
and any other contentions of the petitioner including the facts and reasons l
why he should be permitted to intervene..." AMP-0 clearly has failed to i
l meet these requirements. Accordingly, the petition is denied, both as untimely and, separately, for failure to comply with the cited provisions of 10 CFR 2.714.0 E
Under special circumstances, such as a petitior, submitted cro se (see j
Virginia Electric Power Co., Docket Nos. 50-338,50-339, ALAS-T!5),or submitted prior to any agency guidance in a new area of Cennissicr.
jurisdiction (see Louisiana Power and Light Co., Docket No. 50-M2A, l
RAI-73-2, p. 48), petitions have ceen approved even though cnly marginal I
compliance with the regulations was demonstrated, or petitioners have been permitted an opportunity to supplement their requests.
In the circumstances of this case, where petitioner is reoresentec by counsel who until April, 1973, represented Cleveland in this very eroceeding,
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and where petitioner has had many months to seek to sur:lonent its i
original request, we do not believe that non-cc.r,1.': -
i t5 stated j
requirements can be excused.
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3 With respect to Cleveland's petition, the Commission believes that additional clarification is necessary prior to a final ruling. Several significant developmer.ts have occurred since the petition originally was filed: two Comission decisions establishing benchmarks for assessing petitions in antitrust proceedings have been issued (Memorandum and Order i
i dated February 23, 1973, and Memorandum and Order dated September 28, 1973, I
in Louisiana Power and Light Co., suora, RAI-73-2, p. 48, and RAI-73-9, p. 619);
an FPC proceeding involving some of the same parties and subject matter has
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been concluded (City of Cleveland v. Cleveland Electric Illuminatina Comoany, i
l FPC Docket Nos. E-7631, E-7633, E-7713); additional negotiations have been I
conducted among the parties; and Attorney General antitrust advice --
recomending a hearing -- has been received concerning the proposed Perry facility, which is referred to in several of the pleadings in this case and which involves several of the same companies and issues. I Both here and in i
a preliminary pleading in the Perry proceeding, Cleveland's general complaint appears to be that it is being improperly deprived of access to the projected benefits of the proposed Davis Besse and Perry facilities.
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The Commission believes that the Cleveland petition can best be evaluated against this background by an Atomic Safety and Licensing Board.
Accordingly, l
it has designated a Board, pursuant to section 191 of the Atomic Energy Act and 10 CFR 2.721, to assume jurisdiction over this proceeding, consisting 3
i of the following members: John B. Farmakides, Esq., Chairman, John H.
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Brebbia, Esq., and Dr. George R. Hall. The Board shall promptly take whatever l
-2/ The Attorney General's letter of advice concerning the Perry facility was published in the Federal Register on January 16,1974 (39 F.R. 2029).
The accompanying Commission notice pemits any affected person to submit j
a petition to intervene by February 15, 1974.
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4 action it deems appropriate, including meeting with the parties if necessary, to permit it to rule on Cleveland's petition to intervene and request for a hearing, and shall conduct'any hearings which may ensue.
Essentially the same natters and companies as are involved in this case are also involved in two other proceedings.
First, as already neted, Attorney General antitrust advice has recently been received concerning the proposed Perry facility (In the Matter of Cleveland Electric, et al.,
Docket Nos. 50-440A, 50-441A).
Cleveland has already expressed its intention to seek to intervene in that proceeding.
Second, in a petition filed nearly two months late, Cleveland has also requested to intervene In the Matter of Duquesne Light Ccnoany, et al., Docket No. 50-412A.
Against this background, we deem it appropriate to now designate the licensing board named above to also preside over the Perry and Beaver Valley proceedings.
Inter alia, the Board shall rule on any petitions filed in the Perry case and on the Cleveland petition in the Beaver Valley proceeding, shall deternine whether consolidation of the proceedings is appropriate under 10 CFR 2.716, and shall take all necessary action to effectuate consolidation if this is warranted. Hearing notices, if any, and any other required public notices, shall be published in the Federal Register.
It is so ORDERED.
By the Comniss on.
J W-WV GorCcn M. Grant f
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Acting Secretary ~of the ammission Dated at Washington, D.C.
this 21s t day of January,1974.
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