ML19351E458
| ML19351E458 | |
| Person / Time | |
|---|---|
| Site: | 05000484 |
| Issue date: | 12/01/1980 |
| From: | Stephen Burns NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-SC, NUDOCS 8012100154 | |
| Download: ML19351E458 (12) | |
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12/1/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of-
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NORTHERN STATES POWER
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Docket No. STN 50-484 COMPANY, et al.
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(Order to Show Cause)
(Tyrone Energy Park, Unit 1)
NRC STAFF'S ANSWER IN OPPOSITION TO DAKOTA COMMISSIONS' PETITION FOR RECONSIDERATION Pursuant to 10 CFR 2.771 of the Commission's Rules of Practice, the Staff files this answer to the Dakota Commissions' Petition for Reconsideration.
For the reasons stated below, the Commission should deny Dakota Commissions' Petition for Reconsideration and affinn its order of November 3,1980 declining to defer revocation of NSP's construction permit and denying Dakota Commissions' i
request for a hearing, i
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PROCEDURAL SETTING e
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- N PJ dln June 16, 1980, the Director of the Office of Nuclear Reactor. Regulation
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y g(NRR) issued an order that required Northern States Power Company (NSP),
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et al. to show cause why their construction permit for Tyrone Energy Park,
-Unit I should not be revoked.
On July ?,1980, the pemittees consented If Construction Permit No. CPPR-157, 2_/
45 Fed. Reg. 42093 (June 23, 1980),
setti" N Cr
' to the entry of an order revoking the construction permit.
On July 11, 1
1980, the North Dakota Public Service Commission and the South Dakota Public i
Utilities Commission (Dakota Commissions) moved that the Commission defer the Director's proposed revocation of NSP's construction permit for twelve months.
In addition, the Dakota Commissions requested a hearing on the Director's "show cause" order in the event that a hearing was necessary to act on the request for deferral.
On November 3,1980, the Commission issued an order in which the Commissioners unanimously declined to defer-revocation of NSP's construction permit for the Tyrone Energy Park and denied Dakota Commissions' request for a hearing. / On November 13, 1980, the Dakota Commissions filed a petition with the Commission asking it to reconsider its order of November 3, 1980.
I.
THE COMMISSION CORRECTLY RULED THAT DEFERRAL OF REVOCATION OF NSP'S CONSTRUCTION PERMIT IS INAPPROPRIATE.
1 The Commission's order of November 3,1980 had three effects:
1) that the Dakota Commissions, lacking standing, had no right to a hearing as a matter of law; 2) that the granting of a discretionary hearing to the Dakota Commis-sions on whether revocation of NSP's construction permit should be delayed would serve no useful purpose; and
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Northern States Power Co. (Tyrone Energy Park, Unit 1), CLI-80-36, 12 NRC
-(November 3,1980).
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. -3.
3)_
that de'ferral 'of revocation would be inappropriate, t
a Dakota ' Commissions' Petition for Reconsideration focuses almost exclusively on the issue of standing.1/ The petition makes no reference at all to the Commission _'s rejection of a discretionary hearing, and only briefly challenges the Commission's ruling that deferral is inappropriate.E/
The Dakota Comnissions do contend that the NRC acted arbitrarily and capri-ciously in refusing to defer the revocation.5/ The arguments set forth by the Dakota Commissions in-support of this position, in addition to being devoid of any legal authority, evidence a misunderstanding of the Commission's role in the regulation of nuclear energy. As Chaiman Ahearne and Commis-4 sioner Hendrie pointed out in their opinion, "the NRC cannot base its actions upon... a promotional rationale."E Rather, "the NRC is a licensing and regulatory agency, entrusted with the public health and safety and the protection of the environment."S As a licensing and regulatory agency, the Commission is authorized to issue licenses to individuals who will use utilization facilities for industrial
-4/
See Dakota Commissions _' Petition for Reconsideration,- November 13, 1980, a t 4-13.
5/
Id. a t 1-4.
6/
Id. a t 1.
7/
Northern States Power Co. (Tyrone Energy Park, Unit 1), CLI-80-36, 12 NRC (November 3,1980), Views of Chaiman Ahearne and Con-missioner Hendrie at 2.
8/
Id.
or commercial purposes.1/
In addition, the Commission is authorized to revoke any license because of. conditions which would have warranted the Comission to refuse to grant 'a license on an original application.El As the Comission found in its order of November 3,1980, the pemittees have made clear that it has abandoned the one project and does not intend to pursue the building of any nuclear facility under its ccnstruction pemit.
Thus, the pemittees are no longer perscns who will use the Tyrone permit to build a utilization facility for industrial or commercial purposes. As such, the Commission would be warranted in not granting a construction permit to NSP and the other permittees were this an original application.
Consequently, particularly in view of the unequivocal statement of NSP on behalf of the pemittees, the Commission cannot be said to have acted arbitrarily and capriciously in pemitting revocation of the construction pemit it once issued.
In sum, the Commission has fully considered Dakota Commissions' request for deferral of revocation of NSP's construction pemit. The Commission has correctly detemined the extent of its authority and has appropriately concluded that NSP's construction permit should be revoked and that any deferral of _ this revocation is not appropriate.
9]-
5103, Atomic Energy Act of 1954, as amended, 42 U.S.C. 9 2133.
10/- Id. 5 186, 42 U.S.C. 5 2236.
11/ Northern States Power Co., _ supra note 7, at 3.
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-. II.
THE COMMISSION CORRECTLY RULED THAT THE DAK0TA COMMISSIONS DO NOT HAVE A RIGHT TO A HEARING ON THE ORDER TO SHOW CAUSE The bulk of the Dakota Commissions' Petition for Reconsideration addresses the question of whether the Dakota Commissions have standing to request a hearing on the Director's "show cause" order.
The Dakota Commissions contend that 1) the Commission is not required to apply judicial concepts of standing in determininn rights to a hearing;b nd 2) even if concepts of judicial a
standing are applied in this case, the Dakota Commissions have met the relevant tests sufficiently so as to invoke their right to a hearing.E/
As Chairman Ahearne and Commissioner Hendrie stated in their opinion,
" judicial concepts of standing will be applied to detennine intervention and hearing rights.'E The Dakota Commissions have argued that adninistrative agencies are not required to apply judicial concepts of standing, but rather, may apply some lesser standard in determining rights to a-hearing.E The Staff does not take issue with the notion that agencies may as a matter of discretion entertain requests for hearings.even though individuals requesting such hearings have not met the requisite tests for standing.
Indeed, the
_1_2] Petition for Reconsideration, supra note 4, at 4-11.
p / Id. at 11-18.
3 -Northern States Power Co., su ra note 7, at 1, citing Public Service Company of Indiana (Marole i Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438, 439 (1980).
_1_5] Petition for Reconsideration, supra note 4, at 4-11.
I Commission recognized that position in Portland General Electric Company, CLI-76-27,4NRC610,613(1976).
However, as the Commission also stated in the Portland General Electric Company case, " applicability of judicial standing rules to questions of standing to intervene in administrative p.oceedings is clearly pennissible."$ Thus,. accepting the view that an agenc.< may apply a lesser standard in determining hearing rights does not,
. of cource, compel the conclusion that an agency must apply something other than judicial concepts of standing.
Rather, a:; the very decision cited by the Dakota Commissions for the proposition that agencies are not to apply judicial concepts of standing in determining hearing rights makes clear, "to determine what a party must show to qualify as aggrieved under the regulation, we look to the scheme intended and devised by the Congress and the Secretary.'b The Nuclear Regulatory Commission, in interpreting its statutory mandate and regulations, has clearly decided to apply judicial concepts of standing in determining when an individual has a right to a hearing under section 189a of 11/ Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 611, 613 (1976).
1_7] Koniag, Inc., Village of Uyak v. Andrus, 580 F.2d 601, 606 (D.C.
7 Cir. ), cert. denied, 439 U.S.1052 (1978).
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the Atomic Energy Act.
Nothing in the cases cited by the Dakota Commissions would preclude the Commission from adopting these concepts.18/
In addition to deciding that judicial concepts of standing are appropriate standards to_ apply in determining whether one has a right to a hearing before this agency, the Commission has also correctly applied those stand-ards to the facts of this case.
As Chairman Ahearne and Commissioner Hendrie pointed out in their opinion, judicial concepts of standing require that an individual establish an " injury-in-fact" that has resulted from the challenged action.b In addition, the party claiming a right to a hearing must also allege an interest that is within the " zone of interests" protected by the relevant statute, in this case the Atomic Energy Act.b
-18/ In addition, it should also be emphasized that the Commission.has considered Dakota Commissions' request for a hearing on a less strict basis than judicial standing concepts would require.
That is, the Commission has made clear that in those cases where an individual has not established a right to a hearing as a matter of law, the Commission will also consider whether a Naring should be granted as a matter of Commission discretion.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2}, CLI-76-27, 4 NRC 611, 614 (1976).
Chainnan Ahearne and Commissioner Hendrie applied these lesser stand-ards in this case and still rejected Dakota Commissions' request for a hearing, concluding that such a hearing would serve no useful purpose.
19] Northern States Power Co., supra note 7, at 1, citino Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613 (1976).
g Id Notwithstanding the Dakota Conanissions' suggestion to the contrary, the National Environmental Policy Act of 1969 cannot be used as a basis for standing in this proceeding because NEPA requirements do not apply to issuance of an Order to Show Cause under 10 CFR 2.202.
See 10 CFR 51.5(d)(1); 40 CFR 1508.18(a).
See also Northern States Power Co.,
supra note 3, Concurring Views oTTommissioners Gilinsky and Bradford.
a 8_
In order to meet the " injury-in-f act" requirement, the alleged injury must be of the type that is likely to be redressed by a favorable decision with respect to the. challenged action.21/ As the Commission has recognized, the Dakota Commissions' injury in this case does not flow from the proposed order revoking NSP's construction permit.- Rather, the injury in this case, if it exists at all, has been caused by NSP's decision to teininate the Tyrone project.
Thus, cince the Dakota Commissions' alleged injury does not flow from revocation of the Tyrone construction permit, deferring the revoca-tion could not in any way redress the alleged injury.
The Dakota Commissions also argue that the Commission has interpreted their alleged injury too narrowly. They contend that the revocation order impairs their. opportunity to pursue their own procedures to enhance the development, use, and control of nuclear enargy.
Even accepting this characterization of their injury for the sake of argument, the Dakota Commissions still have not establi shed an " injury-in-f act."
The revocation order does not foreclose any opportunity whatsoever to the Dakota Commissions.
The revocation order does not prevent the Dakota Commissions from pursuing whatever avenues they choose to encourage NSP to reassess its decision to terminate the Tyrone 21/ Northern States Power Co., suora note 7, at 1, citing Simon v. Eastern
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Kentucky Welfare Rights Organization, 426 U.S. 26 (1976).
r project.5/ The revocation order does nct in any way prejudice NSP's ability to refile an application for a construction permit at some future date.
In addition, regardless of the manner in which the Dakota Commissions char-acterize their injury, they have failed to allege an interest that is within the " zone of interests" that the NRC is required by the Atomic Energy Act to protect.
Under the Energy Reorganization Act of 1974, the NRC is not assigned any responsibility for protecting interests associated with the encouragement of nuclear energy.E Rather, this agency has responsibility to insure that nuclear energy if it is to be used at all, is used in a manner consistent with the public's interest in health, safety, and the environment.
'-22/ The Dakota Commissions have cited Village of Arlington Heights v.
Metropolitan Housing Development Corporation, 429 U.S. 252, 262-63 (1977), for the proposition that the " injury-in-fact" test does not require that deferral of revocation insure that NSP ultimately build the plant.
See Petition for Reconsideration, supra note 4, at 14.
The Arlington Heights case, however, stressed that there must be a causal connection between the alleged injury and the challenged action.
Even characterizing the Dakota Commissions' injury as a lost opportunity to follow its own procedures to encourage the development of nuclear energy, the Dakota Commissions have still failed to establish the required causal connection.
In contrast to the zoning restriction in Arlington Heights, the revocation of NSP's construction permit does not prevent the Dakota Commissions.from attempting to persuade NSP to reconsider the Tyrone project nor does it bar NSP from reapplying for a construction pemit if it decides to pursue that course at some future date. Moreover, the Commission never rested its original decision in this case on a view that the Dakota Commissions, in order to invoke st inding to challenge the Director's order, would have to show that deferral of the revocation order would guarantee that the plant be built.
_2_3/ Indeed, raponsibility for. the development of nuclear energy has been assigned to the Energy Research and Development Administration, now the Department of Energy.
See Energy Reorganization Act of 19 74, 42 U.S.C.
5801(b)(c).
III. CONCLUSION For the foregoing reasons, the Commission should deny the Dakota Commissions' Petition for Reconsideration.
Upon denial of the petition, the Director of NRR will issue an order revoking the Tyrone construction permit.
Respectfully submitted, Stephen G. Burns Counsel for NRC Staff Dated at Bethesda, Maryland this 1st day of December,1980
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of NORTHERN STATES POWER COMPANY,
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Docket No. SNS 50-484 et al.
)
(Order to Show Cause)
(Tyrone Energy Park, Unit 1)
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CERTIFICATE OF SERVICE I here certify that copies of NRC STAFF'S ANSWER IN OPPOSITION TO DAKOTA COMMISSIONS' PETITION FOR RECONSIDERATION in the above-captioned proceeding, have been served on the following by deposit in the United States mail, first class, or, as indicated t, an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system this 1st day of December 1980.
Thomas A. Baxter, Esq.
Thomas Galazen Counsel for Permittees Northern Thunder-North Shaw, Pittmap, Potts & Trowbridge P. O. Box 334 1800 M Street, N. W.
Turtle Lake, Wisconsin 54889 Washington, D. C. 20036 Atomic Safety & Licensing Board Panel
- Mr. Arthur V. Dienhart, V. Pres.
U. S. Nuclear Regulatory Comission Northern States Power Company Washington, D. C. 20555 Eau Claire, Wisconsin 54701 Atomic Safety & Licensing Appeal Panel +
Richard Ihrig, Esq.
U. S. Nuclear Regulatory Commission Counsel for Badger Safe Energy Washington, D. C. 20555 Alliance, Inc.
361; Chase Street Docketing & Service Section*
Burlington, Vermont 05401 U. S. Nuclear Regulatory Comission Washington, D. C. 20555 Frances E. Francis, Esq.
John Michael Adragna, Esq.
Spiegel & McDiarmid 2600 Virginia Avenue, N. W.
Washington, D. C. 20037 Ray H. Walton, Esq.
Commerce Counsel
[ kr N C Staff North Dakota Public Service Com.
Capitol Building Bismarck, North Dakota 58505 Walter Was'hington, Esq.
Assistant Attorney General South Dakota Public Utilities Com.
Capitol Guilding Pierre, South Dakota 54701
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