ML19344E230
| ML19344E230 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 08/25/1980 |
| From: | Swartz L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8008280188 | |
| Download: ML19344E230 (12) | |
Text
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{hhD UNITED STATES OF AMERICA Aug NUCLEAR REGULATORY COMMISSION 0 @ g [,
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' BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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METROPOLITAN EDIS0N COMPANY, ET AL.
Docket No. 50-289 (Restart)
(Three Mile Island Nuclear Station, Unit No.1)
NRC STAFF Rt.SPONSE TO VICTAULIC COMPANY OF AMERICA, ET AL.,
PETITION TO _INTERVTN T On August 12, 1980, VictaulicCompanyofAmericaandsevenothercorporations1/
filed a Petition to Intervene in the captioned proceeding. The Staff opposes the Petition on the grounds that Victaulic Company, et al., filed their Petition to Intervene at an inexcusably late date with no showing of good cause for its untimeliness, that they lack standing to intervene as of right, and that they have not demonstrated that their intervention should be permitted as a matter of discretion. The Staff's reasoning is set forth below.
Discussion A.
Petitioners Have Not Met the Standard _s for Late Filing Under 10 C.F.R. 52.714(a)(1)
The Petition to Intervene was not timely filed / and Petitioners have not 2
met the standards for late filing under 10 C.F.R. 52.714(a)(1). That regula-tion states that decisions on entertaining non-timely filings should be based if Th'e other corporations who jointed in the Petition to Intervene are:
Lebanon Steel Foundry; P.H. Glatfelter Company; Mack Printing; S.I. Handling Systems, Inc.; Alloy Rods Division of Alleoheny Ludlum Industries, Inc.; Aluminum Company of America; and Harsco Corporation.
-2/ In its August 9,1979 Order and Notice of Hearing, the Comission ruled that " persons whose interest may be affected by this proceeding" may file a written petition to intervene by September 4, 1979.
Order at 15.
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upon a balancing of five factore:
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petition.ar's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
It is evident that Petitioners have not met the first factor, the good cause requirenent. They assert that their interest lies in "the financial losses and competitive disadvantages resulting from the Co nission's TMI-l Shutdown Order." Petition at 8.
They also assert that this state of affairs has recently becone crucial because of the licensee's July 29, 1980 application for a rate increase. This does not represent " good cause... for failure to file on time." Hetropolitan Edison has sought and received rate increases prior to its mest recent request.3_/ Thus, the Petitieners 3/ On May 8, 1979, Metropolitan Edison filed a petition with the Pennsylvania Public Utility Comission eeking a rate increase.
This petition was granted on June 15, 1979. Again on November 1, 1979, the licensee requested a rate increase. On February 8, 1980 the Public Utility Commission granted this request. Finally, on May 23, 1980, the Public Utility Comission allowed another increase in Metropolitan Edison's electricity rate. TMI-1 Restart Report (NUREG-0680) at C7-3 through C7-10.
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suffered " financial losses" due to increased rates prior to July 29, 1980 and could have filed a petition alleging the identical losses which they are claiming in the instant petition at an earlier time.
Moreover, the TMI-l facility has been shut down since before the TMI-2 accident.
It has been evident since at least the issuance of the Commission's Order and Notice of Hearing on August 9,1979 that TMI-l would remain shut down, at a minimum, until the completion of a lengthy hearing, the issuance of an initial decision by the Licensing Board, the consideration of that decision by the Commission, and the issuance of a subsequent order on restart by the Commission.
Petitioners have done nothing more than complain of the fact that time has passed and TMI-1 is not operating. This was a foreseeable consequence of the Commission's August 9, 1979 Order ano provides no justificacion for a petitien to intervene which is ever 11 months late.
Not only have the petitioners failed to show " good cause," they are also unable to meet at least two of the remaining four factors. The Petitioners' interests are similar to certain interests of the licensee: for economic and financial reasons, they seek to have TMI-l begin operation at the earliest possible time. Therefore, the licensee'.s participation in this proceeding will insure that the Petitioners' interest will be represented and protected.
Further, participation by the Petitioners is not necessary to develop a sound record since Petitioners have neither shown special expertise on matters in l
- issue nor demonstrated the capability to contribute to the evidentiary record.
Only the fact that their participation is not likely to broaden the issues or delay the proceeding and the fact that there may be no other obvious means for Petitioners to protect their financial interest are in the Petitioners' favor with respect to the standards for late filing. These two favorable factors, however, do not justify the acceptance of a estition which is so inexcusably late.
B.
Victaulic Company, et al., Have No Standing to Intervene As c? Richt The Atomic Energy Act of 1954, as amended, and the Commission's rules of practice permit intervention only by a " person whose interest may be affected by a proceeding...." 10 C.F.R. 52.714(a)(1).
Intervention as of right is determined by reference to judicial concepts of standing.
Portland General Electric Company, et al., (Pebble Springs Nuclear Plant, Units 1 and 2),CLI-76-27,4NRC610(1976).
The judicial standing doctrines require a party to allege (1) some injury has occurred or will probably occur as a result of the action involved to the person asserting it and (2) an interest " arguably within the zone of interest" protected by the statute.
Sierra Club v. Morton, 405 U.S. 727 (1972);
Warthv. Seldin,422U.S.490(1975). To meet the first test, a party cannot assert "a generalized grievance" which is shared by a large number of citizens.
_Tran3 nuclear Inc., CLI-77-24, 6 NRC 525, 531 (1977).
In fact, a party supporting an application for a license must particularize a specific injury that it or
-m.
5-its members would or might sustain should the application be denied. Nuclear Engineering Company, Inc., (Sheffield, Illinois, Low Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 741-43 (1978).
The second test for standing, that the injury alleged is within the " zone of interest " is not met merely by showing injury in fact. Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), ALAB-342, 4 NRC 98,103 >; n. 6 (1976).
Further, the economic interest of a ratepayer is not witt in the scope of interest sought to be protected by the Atonic Energy Act.
Kansas Gas and Electric Company, et al., (Wolf Creek Generating Station, Unit 1),
ALAB-424, 6 NRC 122, 128 (1977).
In setting forth their " interests" or standing, Petitioners state that they "are some of the largest electrical users of Met-Ed prior to March of 1979" and that they also represent "the interests of all Met-Ed customers from residential to industrial who have been adversely affected and will continue to be adversely affected by the TMI-l Shutdown Order." Petition at 2.
Petitioners cite loss of competitive position, discontinued expansion plans, and cutbacks in production due to higher electrical costs caused by the shutdown of TMI-l as the basis for their standing.
Petition at 4.
Their protests to tha contrary (see Petition at 4), the Petitioners are merely using their ratepayer status as the basis for their standing.
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- Petitioners rely on North Anna (ALAB-342), supra, for the proposition that
" direct financial or property loss has been recognized to be within the ' zone of interest' necessary for party status." Petition at 4.
The economic losses referred to in North Anna as being within the " zone of interest," however, are those losses which might occur as a direct result of a radiological release at a nuclear power plant, "e.g., a loss occasioned by the necessity to cease doing business in the area affected by the releases."
Id. at 105. Financial losses which occur as the result of a shutdown of a nuclear power plant were not envisioned by the Appeal Board in North Anna to be within the " zone of interest" of the Atomic Energy Act. Rather, a nexus between the potential financial loss and a postulated radiological release must be shown. Such a showing has not been and cannot be made by the Petitioners.
While Petitioners may have satisfied the first test for standing, i.e., that they have suffered some injury and will continue to suffer injury as long as THI-1 is not producing power, it is clear that they have not satisfied the second test. The interest they seek to protect, their economic or competitive stance, is not within the " zone of interest" sought to be protected by the Atomic Energy Act of 1954, as amended. Wolf Creek (ALAB-424), supra. Accord-ingly, they have not made the requisite showing of standing to intervene as of right and should not be permitted to intervene in this proceeding.
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C.
Petitioners Have Not Made a Showing to Permit Discretionary Intervention While a petitioner may lack standing to intervene as of right, a petitioner may be admitted to the proceeding in the Licensing Board's discretion.
Portland General Electric Company, et al. (Pebble Springs Nuclear Plant.
0.its 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976).
In discussing when#
discretionary intervention should be granted, the Commission in Pebble Springs, suora, stated that the Licensing Board should be guided by the following factors:
a) Weighing in favor of allowing intervention --
- 1) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
- 2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding.
- 3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
b) Weighing against allowing intervention --
- 4) The availability of other means whereby petitioner's interest will be protected.
- 5) The extent to which the petitioner's interest will be represented by existing parties.
- 6) The extent to which petitioner's participation will inappro-priately broaden or delay the proceeding.
ld-Of these, the most important factor is whether the petitioner would likely produce a valuable contribution to the NRC's decisionmaking process on a significant safety or environnental issue. Tennessee Valley Authority (Watts l
8-Barr Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418 (1977); Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-470, 7 NRC 473, 475 at n. 2 (1978).
In addition, interests which do not establish a right to intervene because they are not within the " zone of interests" to be protected are not to be considered positive factors for purposes of granting discretion-ary intervention. Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 388, aff'd, ALAB-470, 7 NRC 473 (1978).
Victaulic,C_ompany, et al. have not made the necessary showing to warrant a grant of discretionary intervention. Of primary importance in this regard is Petitioners' total failure to make a showing of any kind as to their potential contribution to the development of a sound record.
Petitioners have not alleged that they possess or have access to special expertise on any of the issues in the restart proceeding or that they would or could present evidence on any such issues. Nor have they indicated what other contributions they would be in a position to make.
Accordingly, a favorable finding on this most important factor for discretionary intervention cannot be made. Further, although Petitioners do seem to have substantial financial interests in this proceeding and such interests could be affected by the outcome of the proceeding, under Fermi (LBP-78-11) supra such financial interests are not to be considered positive factors for purposes of discretionary intervention because they do not fall within the zone of interests protected by the Atomic Energy Act.
Petitioners have made no other showing as to the nature and extent of their other interests or the effect of the outcome of the proceeding on such other interests. Accordingly, Petitioners have failed to demon-strate the existence of any of the factors which would weigh in favor. of allowing discretionary intervention.
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While not explicitly addressed by Petitioners, it is not apparent that there are means, other than participation in the TMI-l restart proceeding.
whereby Petitioners' interest could be protected. Similarly, there is no reason to believe that Petitioners' participation would necessarily broaden the issues or delay the proceeding.
In this regard, these two factors cannot be said to weight against permitting discretionary intervention.
However, since Petitioners' interests are essentially the same as those of the licensee (for economic and financial reasons, they seek to have TMI-l begin operation at the earliest possible time, it is likely that Petitioners' interests will be represented and protected by virtue of the licensee's participation. On balance, this factor weights against permitting discre-tionary intervention.
In summary, there are no factors weighing in favor of discretionary intervention and there is at least one factor weighing against it. On the most important factor, Petitioner's potential contribution to the development of a sound record, no showing of any kind has been made.
In these circumstances, the pertinent considerations weigh strongly against permitting Petitioners to intervene as a matter of Licensing Board discretion.
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Conclusion The Petition to Intervene of Victaulic Company, et al. should be denied because Petitioners have failed to demonstrate that they possess standing to intervene as a matter of right or that intervention as a matter of Licensing Board discretion should be permitted. Morever, the Petition to Intervene is untimely and no showing of good cause for the late filing has been made.
Respectfully submitted, d.,
C' Lucinda Low Swartz Counsel for NRC Staff Dated at Bethesda, Maryland, this 25th day of August,1980
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0!iMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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METROPOLITAN EDIS0N COMPANY, Docket No. 50-289 ET AL.
(Three Mile Island, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESP 0!1SE TO VICTAULIC COMPANY OF AMERICA,ET AL., PETITION TO INTERVENE, dated August 25, 1980, in the above-captioned proceeding, have been served on the following, by deposit in, the United States mail, first class, or as indicated by an asterisk, through deposit in the Nuclear Regulartory Commission's internal mail system, this 25th day of August,1980:
- Ivan W. Smith, Esq.
Mr. Steven C. Sholly Atomic Safety & Licensing Board Panel 304. South Market Street U.S. i'uclear Regulatory Commission Mechanicsburg, Pennsylvania 17055 Washington, D.
C.
20555 Mr. Thomas Gerusky Dr. Walter H. Jordan Bureau of Radiation Protection 881 W. Outer Drive Dept. of Environmental Resources Oak Ridge, Tennessee 37830 P.O. Box 2063 Harrisburg, Pennsylvania 17120 Dr. Linda W. Little 5000 Hermitage Drive Mr. Marvin I. Lewis Raleigh, North Carolina 27612 6504 Bradford Terrace Philadelphia, Pennsylvania 19149 George F. Trowbridge, Esq.
Shaw, Pittman, Potts & Trowbridge Metropolitan Edison Company 1800 M Street, N.W.
Attn: J.G. Herbein, Vice President Washington, D. C.
20006 P.O. Box 542 Reading, Pennsylvania 19603 Karin W. Carter, Esq.
505 Executive House Ms. Jane Lee P.O. Box 2357 R.D. 3; Box 3521 Harrisburg, Pennsylvania 17120 Etters, Pennsylvania 17319 Honorable Mark Cohen Walter W. Cohen, Consumer Advocate 512 D-3 Main Capital Building Department of Justice Harrisburg, Pennsylvania 17120 Strawberry Square,14th Floor Harrisburg, Pennsylvania 17127
Allen R. Carter, Chairman John Levin Esq.
Joint Legislative Committee on Energy Pennsylvania Public Utilities Comm.
Post Office Box 142 Box 3265 Suite 513 Harrisburg, Pennsylvania 17120 Senate Gressette Building Columbia, South Carolina 29202 Jordan D. Cunningham, Esq.
Fox, Farr and Cunningham Robert Q. Pollard 2320 North 2nd Street 609 Montpel.ier Street Harrisburg, Pennsylvania 17110 Baltimore, Maryland 21218 Theodore A. Adler, Esq.
Chauncey Kepford WID0FF REAGER SELK0WITZ & ADLER Judith H. Johnsrud Post Office Box 1547 Environmental Coalition on Nuclear Power Harrisburg, Pennsylvania 17105 433 Orlando Avenue State College, Pennsylvania 16801 lis. Ellyn R. Weiss Harmon & Weiss Ms. Frieda Berryhill, Chairman 1725 I Street, N.W.
Coalition for Nuclear Power Plant Suite 506 Postponement Washington, D.C.
20006 2610 Grendon Drive Wilmington, Delaware 19808 Ms. Marjorie M. Aamodt R.D. #5 Holly S. Keck Coatesville, Pennsylvania 19320 Anti-Nuclear Group Representing York 245 W. Philadelphia Street York, Pennsylvania 17404
- Atomic Safety and Licensing Appeal Board
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,f U.S. Nuclear Regulatory Commission
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Washington, D.C.
20555 i i,", '
Counsel for NRC Staff
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Secretary U.S. Nuclear Regulatory Commission ATTN:
Chief, Docketing & Service Br.
Washington, D.C.
20555 Karen P. Sheldon, Esq.
c/o Harmon & Weiss 1725 I Street, N.W.
Suite 506 Washington, D.C.
20006 o