ML19340E911

Response of Duke Power Co,Nc Electric Membership Corp & Saluda River Electric Cooperative in Opposition to Hg Ayers 801215 Ltr Request to Intervene & for Antitrust Proceeding. Certificate of Svc Encl

ML19340E911
Person / Time
Site:	Catawba
Issue date:	01/12/1981
From:	Mcgarry J, Porter W DEBEVOISE & LIBERMAN, DUKE POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-A, NUDOCS 8101160220
Download: ML19340E911 (9)

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In the Matter of )

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DUKE POWFR COMPANY ) Docket No. 50-413A

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(Catawba Nuclear Station, )

Unite No. 1) )

RESPONSE OF DUKE POWER COMPANY, NOM H CAROLINA ELECTRICMEMBERSHIPCORgRATIONANDSALUDARIVER ELECTRIC COOPERATIVE- TO DECEMBER 15, 1980 FILING OF MR. HAVARD G. AYERS On July 1, 1980, Duke Power Company (" Duke") notified the NRC that it had reached agreement in principle to sell a 56.25%

interest in the Catawba Nuclear Station, Unit No.1 (" Catawba")

to North Carolina Electric Membership Corporation ("NCEMC") and an 18.75% interest to Saluda River Electric Cooperative ("Saluda")

! and sought amendment of its construction permit to that effect. Duke, NCEMC and Saluda filed information requested by the Attorney General for antitrust review as required by 10 CFR Part 50, Appendix L, regard-ing this sale. Notice of this filing and of an opportunity for any

, person to present his views on antitrust matters or request

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additional information was published in the fed 6fdT*'Rhifst'6F5f6WD r- - . . ,, g 2 t-four consecutive weeks.U No such views or requests were filed 1_/ Duke Power Company, the lead applicant in this matter, is respond "

ing on behalf of the NCEMC and Saluda. Both NCEMC and Saluda support this response and have been served copies. ,

'-2/ Such views or requests for information were due on or before October 7, 1980. See 45 Fed. R_eg. e 52975 (August 8, 1980); -

45 Fed. R_eg. e 54493 (August 15, 1980); 45-Fed. R_eg. 56215 __

(August 22, 1980); and 45 Fed. Reg. 57800-01 (August 29, 198.0) -

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I by Mr. Ayers with respect to the Department of Justice inquiry.  !

The Attorney General informed the Commission on October 29, 1

1980 tha~t it was his opinion that the proposed sale would not create or =aintain a situation inconsistent with the antitrust laws and that no antitrust hearing was necessary.E# This advice gE published in the Federal Register on November 14, 1980 (45 Fed. Reg. 75393-94) together with a notice of opportunity for any interested person to petition for leave to intervene and request a hearing "on the antitrust aspects of the application."

(Id.) Such petitions were to be filed no later than December 15, 1980. Apparently on that date, Mr. Ayers, a member (i.e., rate-payer) of the Blus Ridge Cooperative, one of the cooperatives which is a member of NCEMC, which in turn is purchasing an interest in Catawba, filed a letter with the Commission requesting a hearing on the proposed sale reciting his concerns with the

" safety of the Westinghouse unit" and the " financial advisability" of the purchase. Duke, NCEMC and Saluda submit that nothing stated therein requires that an antitrust hearing, or any other type of proceeding related to the amendment, be held to consider

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his concerns.

If construed as a petition to intervene and request for an antitrust proceeding, Mr. Ayers' letter is completely inadequate.

It utterly fails to address, let alone satisfy, the basic 3/ In fact, the proposed sale is consistent with the underlying policies of Section 105c of the Atomic Energy Act.

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requirements for intervention of 10 CFR 5 2.714 or the specific requirements for antitrust intervention enunciated by numerous j Licensing and Appeal Boards, and should be dismissed.

In Kansas Gas and Electric Company, et al. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1-NRC 559 (1975),

the Appeal Board specifically addressed the circumstances in which a Section 105c hearing (the pertinent section of the Atomic Energy Act) may be called for,notwithstanding the Attorney General's advice that none is necessary. In addition to satisfy-ing the requirements for intervention of 10 CFR $ 2.714(a) and (b) relating to his interest and the basis for his contentions, Id. at 565-66, a petitioner seeking to raise antitrust matters' must " describe a situation inconsistent with the antitrust laws" or their underlying policies, plead a meaningful nexus between the activities under that license and the situation, and " identify the specific relief sought." Id. at 574-75.

Mr. Ayers has failed to comply with the requirements of Wolf Creek. Rather, his letter seeks to raise issues of safety and " financial advisability"A that clearly have no relation to 4/ It should be noted that the issue of financial advis-ability has been squarely addressed and rejected by the Appeal Board as a basis for antitrust intervention in a case virtually identical to this one. Detroit Edison Company (Enrico Fermi Atomic power Plant, Unit No. 2),

ALAB-475, 7 NRC 752 (1978). In that case, the Appeal Board held that petitioner Martha Drake had no standing to litigate the issue of whether " economic harm" would be visited upon her as a result of the purchase by the generation and transmission cooperative (which served the distribution cooperative of which.she was a member) of a share in the Fermi facility. The Board there held (Footnote continued on next page.)

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"the preservation and encouragement of competition in the electric power industry through 'f air access to nuclear power' l

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[that] is the principal motivating consideration underlying  !

Section 105c of the Atomic Energy Act." Detroit Edison Comuany (Enrico Fermi Atomic Power Plant, Unit No. 2), ALAB-475, 7 NRC 752, 757 (1978), citing Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-452, 6 NRC 892, 1100 (1977).

In sum, there is no basis to grant antitrust intervention as of right nor is there any basis upon which to grant discretionary antitrust intervention since there has been no showing whatsoever that the petitioner would be likely to contribute significantly to the proceedings.5/ Thus, the petition of Mr. Ayers, if con-strued as a request for intervention and an antitrust hearing, must be denied.

(Footnote continued from previous pagt.)

that her asserted injuries did not stem from a denial of access to, or the competitive advantage flowing from, the use of nuclear power but amounted to " dissatisfaction with the cooperatives' management decision" to purchase part l of the Fermi plant. Id. at 757. The Board stated that it

! was not the NRC's function to supervise the general business decisions of utilities or to second-guess the judgment of

those who did. Injuries from such causes were "beyond the zone of interests that Section 105c of the Atomic Energy Act was designed to protect or regulate." Id. at 758. Mr. Ayers' letter apparently indicates exactly the same type of dis-satisfaction with his cooperative's management decision and, for the reasons stated by the Appeal Board insFermi, cannot j

form the basis for intervention in an antitrust proceeding.

5/ See, Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 617 (1976) and Fermi, supra at 758 n. 19.

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I Although Applicant believes this letter, at best, i i

should be considered as an attempt to seek intervention in i an antitrust proceeding,5 Applicant submits that the letter does not support intervention in or a request for any other type of hearing which may be had at this time.1 The " financial advisability" issue which Mr. Ayers raises is not only inap-propriate in antitrust proceedings, as noted above, but, an assertion of interest based thereon has been specifically considered and rejected by the Commission and the Appeal Board as being beyond the zone of interests the Atomic Energy Act was designed to protectE# (i.e., public health and safety concerns).

The safety issue to which Mr.'Ayers alludes might be alleged in' response to a notice of opportunity for an operating license 6/ As noted, the November 14, 1980 Federal Register notice (45 Fed. Reg. 75393) specifically stated that it concerned receipt of the Attorney General's advice and " Time for Filing Petitions to Intervene on Antitrust Mattere."

(Id., emphasis added.) Additionally, intervention peti-tions and requests for hearing cannot properly raise anti-trust issues and health and safety concerns in the same proceeding. Houston Lighting and Power Co. (South Texas Project, Unit Nos. 1 and 2), ALAB-381, 5 NRC 582, 589 (1977).

7/ See 10 CFR $$ 2.104 and 50.35.

8/ See, e.g., Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418 (1977); and Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit No. 2), ALAB-470, 7 NRC 473 (1978).

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hearing on Catawba, but such has not yet been published.

The " safety of the Westinghouse unit" was based on the adequacy of the McGuire containment which is presently being pursued by the McGuire Atomic Safety and Licensing Board at thi.- time.

McGuire Nuclear Station, Units 1 and 2 are similar There are operating to Catawba Nuclear Station, Units 1 and 2.

Cook and Sequoyah. Accordingly, i.e.,

plants similar to Catawba, there is nothing about this safety issue which requires that it be explored at this time and Mr. Ayers' petition must be denied as premature.

In sum, the letter fails to set forth any basis for granting health and safety intervention as of right at this time and petitioner has failed to demonstrate the ability to make a significant contribution to a proceeding such as would allow discretionary intervention.9/ Since the issues which he raises are either inappropriate at the present time or beyond the NRC's jurisdiction, petitioner has not advanced any plausible reason for conveiling any type of hearing now.ES In conclusion, Duke, NCEMC and Saluda submit that Mr.

Ayers' letter does not raise any issues requiring that any supra, fn. 6.

9/ See pebble Springs and Fermi, ,

10/ Carolina.

It should be noted that Mr. Ayers lives in Boone, NorthCat Under recognized case law, such some 100 miles distant.

a circumstance renders Mr. Ayers without standing in aSee Fermi, ALAB-470, public health and safety proceeding.

I supra, n. 1 at 475.

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type of hearing be held in conjunction with the amendment of the Catawba license to' reflect the change in ownership of l that plant and '; hat it should thus be dismissed.

Respectfullysubmft d, -

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William L. Porter Associate General Counsel Duke Power Company P. O. Box 33189 Charlotte, North Carolina 28242 Of Counsel:

J. Michael McGarry, III Debevoise k Liberman -

1200 Seventeenth Street, N.W.

Washington, D. C. 20036 January 12, 1981 l

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In the Matter of )

) Docket No. 50-413A DUKE POWER COMPANY )

(Catawba Nuclar Station, )

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Unit No. 1)

CERTIFICATE OF SERVICE North Carolina Electype Membership Corporation and Sa to December 15, 1980 Filing of Mr. Harvard Electric Cooperative-G. Ayers" in the above-captioned proceeding have been seg3gd on the following by deposit in the United States mail this day of January, 1981:

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Harvard G. Ayers B. Paul Cotter, Jr. , Esq. , Chairman Route 3, Box 662 Atomic Safety and Licensing Board Boone, North Carolina 28607 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Richard P. Wilson, Esq.

Assistant Attorney General I

Docketing and Service Section S. C. Attorney General's Office Office of the Secretary P. O. Box 11549 l

' U. S. Nuclear Regulatory Commission Columbia, South Carolina 29211 Washington, D. C. 20555 William C. Wise, Esq.

Jerome Saltzman, Chief Ring Building Suite 500 Utility Finance Branch 1200 18th Street, N.W.

U. S. Nuclear Regulatory Commission Washington, D. C. 20036

' Washington, D. C. 20555 Henry M. Faris, President Atomic Safety and Licensing Board Saluda River Electric Cooperative U. S. Nuclear Regulatory Commission 207 Sherwood Drive Washington, D. C. 20555 Laurens, South Carolina 29360 Joseph B. Knotts, Jr., Esq. James M. Hubbard J. Michael McGarry, III, Esq. Executive Vice President Debevoise and Liberman North Carolina Electric Member-1200 Seventeenth Street, N.W. ship Corporation Washington, D. C. 20036 P. O. Box 27306 Raleigh, North Carolina 27611 3

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State Clearinghouse Chairman Office of the Governor The South Carolina Public Division of Administra' tion Service Commission 1205 Pendleton Street P. O. Box 11649 4th Floor Columbia, South Carolina 02903 Columbia, South Carolina 29201 Chairman Attorney General North Carolina Utilities Department of Justice Commission P. O. Box 11549 Dobbs Building Columbia, South Carolina 2b211 P. O. Box 991 Raleigh, North Carolina 27602 Attorney General Department of Justice North Carolina MPA-1 Justice Building Suite 208 Raleigh, North Carolina 27601 222 North Person Street Raleigh, North Carolina 27601 Federal Energy Regulatory Commission 825 North Capitol Street, N.E.

Washington, D. C. 20426 Frederic D. Chanania, Esq.

Counsel for NRC Staff.

Office of the Executive Legal Director U. S. Nucicar Regulatory Commission Washington, D. C. 20555 William L. Porter e

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