ML20002C946
| ML20002C946 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 01/09/1981 |
| From: | Chanania F NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-A, NUDOCS 8101120503 | |
| Download: ML20002C946 (18) | |
Text
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UNITED STATES OF A" ERICA S}
NUCLEAR REGULATORY C0'1'11SSION
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BEFORE THE AT0"IC SAFETY AND LICEf:SI' 3 BOARD
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2 E3 In the fiatter of
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w DUKE POWER C0'tPA'iY Docket '13. 50-413"A D
(Catawba Nuclear Station, Unit No.1
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t NRC STAFF'S ANSUER TO REQUEST FOR Att ANTITRUST HEARING BY HARVARD G. AYERS I.
INTRODUCTIO!l The NRC Staff hereby subnits its Answer to the request for hearing by fir. Harvard G. Ayers in the above captioned proceeding, nade in his letter dated Decenher 15,1980 (hereinafter the "Ayers Letter").M The NRC Staff opposes the Ayers request for a hearing, and further asks that the Licensing Board treat this matter in an expedited manner in light of the unusual I
circunstances, described below. The Staff opposes the Ayers request because:
(1) the Ayers Letter fails to establish that 11r. Ayers has standing to request an antitrust hearing; (2) the Letter does not satisfy any of the general cri-teria set forth in 10 CFR 6 2.714 or the other antitrust criteria governing such requests; and (3) discretionary intervention is no" warranted.
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y The Ayers Letter is annexed hereto as Attachnent No.1.
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II.
BACKGDOUND A.
Th_e_ Duke Power Amendment Application h
On July 1,1980, Duke Power Company (" Duke Power") subnitted an applica-tion to amend its construction pemit for Catawba Nuclear Station, Unit 1, to pemit North Carolina Electric Membership Corporation ("NCEMC") and Saluda River Electric Cooperative to become co-owners and co-licensees in that nuclear unit.
NCEMC, an association of rural electric cooperatives
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which has as one of its menbers Blue Ridge Electric Membership Corporation
(" Blue Ridge"), is seeking to purchase 56.25% of Catawba Unit 1, while Saluda River is seeking an 18.75% share of that unit.
In connection with the application for this amendment, Duka Power also submitted antitrust information on benalf of NCEMC and Saluda River as required by 10 CFR Part 50, Appendix L.
The antitrust infomation was forwarded on July 11, 1980, to the Attorney General for his review and advice, pursuant to Section 105(c) of the Atomic Energy Act of 1954, as amended (hereinafter referred to as the " Atomic Energy Act").U i
Notices were published in the Federal Register on August 8,15, 22, and l
29, 1980, acknowledging receipt of the antitrust information and providing an opportunity for persons to submit their views on antitrust matters to the NRC and the Attorney General for consideration.
45 Fed. Reg. 52975, 54493, j
56215, 57800.
In addition, notices were pub 11:hed in seven local newspapers and electric utility trade journals during this same time period. Mr. Ayers did not respond to any of the notices.
y 42 U.S.C. I 2135(c).
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By letter dated October 29, 1980, the Attorney General advised the NRC that no antitrust hearing would be necessary with respect to the transfer of ownership interests from Duke Power to NCEMC and Saluda River, as sought the application to amend the Catawba Unit I construction permit.
Pursuant to Section 105c(5) of the Atomic Energy Act,E the Attorney General's advice letter was published in the Federal Register on November 14, 1980. 45 Fed.
Reg. 75393 This November 14th notice also provided that:
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Any person whose interest may be affected by this proceeding r
may, pursuant to 9 2.714 of the Commission's " Rules of Practice," 10 CFR Part 2, file a petition for leave to intervene and request a hearing on the antitrust aspects of the application.
Petitions for leave to intervene and requests for hearing shall be filed by December 15, 1980, either (1) by delivery to the NRC Docketing and Service Branch at 1717 H Street, N.W., Washington, D.C. or (2) by mail or telegram addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, D.C.
20555, ATTN:
Docketing and Service Branch.
B.
_The Ayers Letter As of the close of business on December 15, 1980, no petitions for intervention or requests for hearing had been received.
The Staff never-i theless waited until December 19, 1980, before commencing the final approval process for the Duke Power license amendment because of the possibility that L
there might be a le'tcr as yet undelivered.
In the early afternoon of Friday, December 19, 1980, a member of the NRC Staff telephoned the Office of the Secretary to detennine whether any responses to the November 14th notice had been received, and was advised i
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42 U.S.C. 5 2135c(5). See_also, 10 CFR 6 2.102(d)(3).
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that there were none.
In light of that infomation, the Antitrust Division of OELD then concurred in the issuance of the license amendment and sent it to other tRC offices for sinilar action. Later that sane day around 4:00 p.m.,
the Ayers Letter, dated December 15, 1980, was tine-stanced by the Office of the Secretary, Docketing and Service Branch, but no notification of the Staff was made.
To date, the envelope containing the Ayers Letter has not been located, and the Staff has no other infomation as to the actual mailing date.
The Ayers Letter states, in full:
I an a member of the Blue Ridge Electric fiembership Corporation of northwestern North Carolina, and as such I an
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seriously concerned with the pending purchase by the North Carolina Ef1C's (which includes BREMC0 of 56.25% of Duke Power's Catawba) reactor.
I feel the safety of this Westing-house unit is clearly in question, vis-a-vis the ficGuire containnent adequacy question being pursued by the ASLB at this time.
Further I question the financial advisability of the NCEf1C purchase - we are in essence giving Duke Power a blank check for construction costs plus a guaranteed profit.
Because of these and other reasons, I request that the NRC hold hearings on this matter preferably in Boone.
On fionday, December 22, 1980, the OELD Hearing Division (which deals with health, safety, and environmental matters but does not have any anti-trust responsibilities) also reviewed and concurred in the license anendment.
On Tuesday, December 23, 1980, the license amendment was fomally issued and sent out to Duke Power, effective as of that date. By this time, the Ayers Letter had apparently been forwarded only to two NRC administrative offices not directly involved in the issuance of the Duke Power amendment - the Atomic Safety and Licensing Board Panel and the NRC Document Management Branch. The Document Management Branch forwarded the Ayers Letter to TERA, a contractor that indexes and computerizes documents the NRC receives.
No other distribution or notifications were made by that Branch.
p
- f. On the afternoon of Wednesday, December 24, 1980, ftr. Ayers telephoned an attorney in the Hearing Division (whon he apparently kne.: from another NRC proceeding) and nentioned his hearing request while inquiring if his letter had been received.
The attorney receiving the call was not involved in the Cataaba license anendnent natter, but notified others who were nore familiar with the instant matter.
This narked the first tine when fGC Staff menbers involved with the license amendment becane aware of the existence of the Ayers request.
By Monday, December 29, 1980, contact with Mr. Ayers had been attenpted but was unsuccessful.
Also by this date, TERA had indexed the Ayers Letter and returned it to the NRC Docunent Mananement Branch.
Finally, on Tuesday, December 30, 1980, a Hearing Division attorney was able to obtain a copy of the Ayers Letter from the Document Management Branch. At that point, the Staff began its consideration of the genesis and status of the Ayers Letter and of its relationship to the Duke Power license anendment.
III. THE PRESF';T STATUS OF THIS MATTER A.
Anbiouities Found in the Ayers Letter An examination of the Letter reveals that it makes no reference to the Federal Register Notice providing an opportunity for an antitrust inter-vention petition to be filed no later than December 15, 1980, nor does it reference an fiRC docket number. The Staff, however, understands that in his telephone conversation of Decenber 24, 1980, Mr. Ayers did mention " waiting until the last day" to send the Letter. Further, there is the coincidence of dates between the Ayers Letter of December 15, 1980 and the close of the
intervention period on that same date.
In addition, the Ayers Letter nentions the "pending purchase by the fiorth Carolina EftC's (which includes BREftCO) of 56.25% of Duke Power's Catawba 1 reactor," which is referred to in the Federal Register l'otice of fiovenber 14, 1980.
Finally, the Letter questions the " financial advisability" of the fiCE! 0 purchase.
On the other hand, the Ayers Letter states:
"I feel the safety of this Westinghouse unit is clearly in question, vis-a-vis the ItcGuire containment adequacy question being pursued by the ASLB at this time."
If construed as a request for a hearing relating to health, safety, or environmental matters, L
it would be. premature since opportunity for a hearing on the Catawba operat-ing license has not yet been noticed. To the extent that the Ayers Letter is intended to express concern about public health and safety considerations attendant to this amendment, the Staff has reviewed the proposed action and concluded that no significant hazards consideration is involved. Notice to this effect will be published in the Federal Register shortly. Mr. Ayers also could elect himself to resubmit this Letter as a request for action under 10 CFR 9 2.206 but, under the present facts and in view of the require-ments of 5 2.206, there is no basis to treat the Ayers Letter as such a l
request.
l The Ayers Letter is, in our opinion, best viewed as a request for a l
hearing pursuant to the antitrust notice, and such request appears to be timely under the presently known facts, given the December 15, 1980 date on l
the Letter. Were it not for the inopportune sequence of events, the license
. anendment would not have been issued until the issues raised by the Ayers Letter had been adjudicated.1/
B.
NRC Pre-Licensing Antitrust Review An electric utility seeking an NRC license to become an owner of a nuclear power facility must undergo NRC pre-licensin; antitrust review and obtain NRC antitrust approval before it can obtain the license.5_/ Completion of the pre-licensing antitrust review ordinarily occurs after an opportunity to request a hearing is provided,6_/ and after any tinely hearing request is
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adjudicated.
This regime applies to the situation where utilities are seeking to becone co-owners and co-licensees through a license anendnent after a construction pemit has been granted to the initial owner.
- See, e.g. South Carolina Electric and Gas Comoany, CLI-80-28,11 NRC 817, 830 (1980); Detroit Edison Company (Enrico Femi Atomic Power Plant, Unit No.
2), ALAB-475, 7 NRC 752 (1978), aff'o LBP-78-13, 7 NRC 583 (1978).
Under the unusual circumstances set forth above and despite the efforts of the NRC Staff to detemine if a timely hearing request had been received, the license amendment received concurrence from the NRC Antitrust Division 4_/
Intervention petitions and requests for hearing cannot properly raise antitrust issues and health and safety in the sane proceeding.
Houston Lighting and Power Co. (South Texas Project, Unit Nos. I and 2), ALAB-381, 5 NRC 582, 589 (1977); Public Service Co. of Indiana (ftarble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167 (1976).
5/
Section 105c of the Atomic Energy Act of 1954, as amended, 42 U.S.C.
5 2135c; Houston Lighting and Power Co. (South Texas Project, Units Nos. I and 2), CLI-77-13, 5 NRC 1303 (1977).
6/
Sections 105c(5) and 189 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 55 2135c(5), 2239.
before the Ayers Letter arrived at the Office of the Secretary of the Connis-sion.
Final issuance of the license amendment to Duke Power, NCEf:0, and Saluda River occurred on Decenber 23, 1980, before any NRC office with substantive approval responsibilities was aware of the existence of the Ayers Letter.
C.
_ Staff's Request for Expedited Action In light of the highly unusual circunstances described above, the Staff believes that the most appropriate action is for the Board to act in an expedited manner on the Ayers Letter.U The Staff expects this expedited course of action to achieve the most orderly resolution possible, primarily because the complete failure of the Ayers Letter to establish standing under 10 CFR 9 2.714 or to meet the criteria for initiating an antitrust hearing should result in a prompt decision denying his request.
The Staff consid-ered and rejected the idea of requesting the Board to suspend or stay the effectiveness of the license anendment.
If expedited action is taken, however, a suspension or stay of the effectiveness of the license amendnent would be unnecessary.
Another positive aspect of an inmediate resolution of this matter by a Licensing Board is that all interested parties, including not only Mr. Ayers but also Duke Power and the prospective co-owners, will have an opportunity to present their views of this matter.
As the Staff is seeking expedited 7~/
The Staff has been advised by the Rural Electrification Administration that the transfer of ownership has not yet occurred.
Due to certain unresolved REA administrative items, this transfer is not expected to g
occur until February 13, 1981 at the earliest.
k e treatnent of this matter, the Staff also takes this opportunity to respond to the substantive nerits of whether the Ayers Letter meets the applicable standards governing requests for antitrust hearings.
IV.
THE AYERS LETTER DOES tdt ESTABLISH STA'DIfi3 A'O DOES NOT ttEET THE RE03 IRE!!EtiTS FOR A'4TITRUST HEARING REQUE A.
Standinc and f!r. Ayers' Interest The Connission has held that requests for hearings and intervention as
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a matter of right into an NRC licensing proceeding under Section 189a. of the Atomic Energy Act of 1954, as amended, and 10 CFR 9 2.714, are governed by judicial principles of standing. _ Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).
The Ayers Letter must, therefore, meet these judicial standing principles, which require a showing that:
(1) some injury has occurred or will probably result from the action involved [the " injury in fact" test], and (2) that the interest alleged is " arguably within the zone of interest" protected by the statute [the " zone of interests" test].
See, e.g., Sierra Club v.
Morton, 405 U.S. 727 (1972); Warth v. Seldin, 422 U.S. 490 (1975); Virginia I
Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-342, 4 NRC 98, 102-103 (1976); Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit No. 2), LBP-7Pd3, 7 NRC 583 (1978), aff'd, ALAB-475, 7 NRC 752 (1978).
1.
The " Injury in Fact" Test The Ayers Letter does not indicate the connection between Mr. Ayers, Blue Ridge, NCEt1C, or Duke Power, nor does it mention any antitrust concern, a
Mr. Ayers states only that he " question [s] the financial advisability of the
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NCEf1C purchase - we are in essence giving Duke Power a blank check for con-struction costs plus a guaranteed profit." The Staff can only assume that Mr. Ayers intends to assert that an injury to hin, ostensibly as a ratepayer of Blue Ridge, night occur from higher electric rates resulting from NCE!!C's participation in Catawba Unit 1.8,f Even if one presunes a hypothetical I
transfer of allegedly higher costs to an ultimate individual customer of Blue Ridge due to the NCEMC purchase of an interest in Catawba Unit 1, these i
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purchase costs and hypothetical assumptions are too renote and speculative-1 to establish any " injury in fact."
The sane type of ratepayer complaint was rejected as a basis for inter-vention in Detroit Edison Company, supra.
There the Licensing Board stated:
The thrust of Petitioner's complaints is an attack on the business judgment of the generation and transmission cooper-ative (Northern tiichigan) in buying an ownership interest in the Fermi 2 facility.
As the Appeal Board has noted in another context (an environmental cost-benefit balance):
"In the schene of things, we leave such matters to the business judgment of the utility companies and to the wisdon of the State regulatory agencies responsible for scrutinizing the l.
purely economic aspects of proposals to build new generating facilities."9/
The Licensing Board then went on to find that such clains by a petitioner did not demonstrate sufficient " injury in fact" to establish standing as a matter of right.E 8/
flCE!!C is the parent organization of a group of rural electric coopera-tives, one of which is Blue Ridge Electric Membership Corporation.
9/
7 NRC at 589-90 (footnote omitted).
10/ M. at 590.
See also, ALAB-475, 7 NRC at 756.
. The Ayers Letter has precisely the sane deficiencies. His request fails to show the " direct" stake needed to demonstrate injury in fact.
Any inpact on !!r. Ayers' rates is wholly speculative and too renote to be a cognizable
" injury in fact" before the fRC, particularly in light of the decision in Detroit Edison. Absent a showing of any " injury in fact" to fir. Ayers, the Ayers Letter does not establish this essential elenent of standing.
2.
The " Zone of Interests" Test I
Tne Ayers Letter, to merit a hearing, must also show that his interests are within the " zone of interests" to be protected by the anti-trust provisions of Section 105 of the Atomic Energy Act, as anended.$
Portland General Electric Co. (Pebble Springs Nuclear Plant Units 1 and 2),
suora, at 613-614; Virginia Electric and Power Co. (North Anna Power Station Units 1 and 2), supra, at 106-107 (1976); Detroit Edison Co. (Enrico Femi Atonic Power Plant, Unit No. 2), supra, at 756-58. As the Ayers Letter fails to establish that Mr. Ayers is a ratepayer complaining of an antitrust problem, any interest which can be deduced fron the letter is beyond the scope of interests protected by Section 105.
In addition, there is no connection between the " zone of interests" protected by Section 105 and the
" financial advisability" question which the Ayers Letter raises.
The Appeal Board, in Detroit Edison, supra, specifically rejected standing for ratepayers based on such representations:
Boiled down, firs. Drake's arguments amount to dissatis-faction with the cooperatives' management decision to satisfy an expected need for more baseload power by acquir-ing part of the Fermi nuclear plant.
She would prefer some r
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lif 42 U.S.C. I 2135.
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other course; she fears this one will raise her electrical rates inordinately.
But the fluelear Regulatory Concission and its adjudicatory boards do not sit to supervise the general business deci-sions of the public utility industry nor to second-guess the Judgment of those who do; that task is entrusted to others.
Injuries from those causes are beyond the zone of interests that Section 105c of the Atomic Energy Act was designed to protectorregulate.12f The Ayers Letter fails, then, to establish the second criteria for standing to request an antitrust hearing.
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B.
Requirements of 10 CFR 6 2.714 and the Wolf Creek Antitrust Criteria Section 2.714(a)(2) of the Commission's Rules of Practice requires that request for a hearing or a petition to intervene in a Commission proceeding set forth:
(1) the interest of the cetitioner in the proceeding; (2) how that interest may oe affected by the proceeding; y
(3) the specific aspects of the subject matter of the proceeding as to which intervention is sought; and (4) a petitioner's contentions with regard to each of those 9
aspects.
In order for a hearing request to be granted, the Board designated to rule on the request must find that these requirements are satisfied. Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 j
AEC423(1973); Pacific Gas and Electric Company (Stanislaus Nuclear Project, T
Unit 1),LBP-77-26,5NRC1017,1021-1025(1977).
12f 7 NRC at 757-58 (footnote omitted).
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In particular, in deternining whether a hearing regaest is sufficient i
to invoke the Connission's antitrust jurisdiction, the request must also neet requirements set forth in 161f Creek:
i (1) describe the situation allegedly inconsistent with the antitrust laws which is the basis for intervention; (2) describe how that situation conflicts with the policies y
underlying the Sherman Act, Clayton Act, or Federal Trade I
Comnission Acts; (3) describe how the situation allegedly inconsistent with the antitrust laws would be created or maintained by activities under the license; (4) identify the specific relief sought; and (5) explain why the relief sought fails to be satisfied by the P
license conditions, if any, which have been proposed by the Departnent of Justice.E The Ayers Letter thus fails to meet the standards set forth in Section i
2.714, as amplified by NRC antitrust decisions.
There is simply nothing which can be construed to raise legitinate antitrust concerns under the Wolf Creek criteria; the failure of Mr. Ayers to state cognizable antitrust t
13/ Kansas City Gas and Electric Co. (Wolf Creek Generating Station, Unit No.1), ALAB-279,1 NRC 559 (1975) (Wolf Creek I).
See also Louisiana Power & Light Co. (Waterford Steam Generating Station, Unit 3), CLI-73-7, 6 AEC 48 (1973) (Waterford I); Louisiana Power & Light Co. (Waterford Steam Generating Station, Unit 3), CLI-73-25, 6 AEC 619 (1973) (Water-I ford II); Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), LBP-77-26, 5 NRC 1017 (1977).
. aspects goes far beyond a nere inability to articulate them well -- they are completely absent.
First, the Ayers Letter does not describe a situation inconsistent with the antitrust laws in the barest degree, nuch less with the specificity necessary to nerit a hearing.
Concomitantly, the Ayers Letter plainly omits allegations showing how a situation allegedly inconsistent with the antitrust laws would be created or maintained by activities under the license, and fails to identify any relief sought.
Mr. Ayers only " question [s] the finan-cial advisability of the NCEMC purchase - we are in essence giving Duke Power a blank check for construction costs plus a guaranteed profit." This is not an antitrust or anticompetitive allegation, but has been held by the Appeal Board in Detroit Edison to be a business judgment matter not appro-priate for NRC antitrust review.
It should also be kept in mind that wide-spread participation in nuclear units (particularly by smaller utilities such as cooperatives) was a prinary goal of Congress in enacting Section 105c, and is one element of relief that is ordered, when appropriate, after anNRCantitrusthearing.b To the extent Mr. Ayers questions the partici-pation of NCEMC in Catawba Unit 1 and in the absence of any other demonstra-tion of antitrust aspects, the Ayers Letter fails to raise concerns that are inconsistent with Section 105 and its legislative history.E As for the general criteria of Section 2.714, the Ayers Letter is deficient.
While the Ayers Letter makes mention of his concern about the J_4f Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit No. 2),
ALAB-475, 7 NRC 752, 756-57 (1978).
15/ Id.; see also, LBP-78-13, 7 NRC at 595.
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. I financial advisability of the NCE'1C purchase, the Letter fails to show Mr. Ayers' personal interest or how that might be affected by the license anendnent. The burden is not on others to engage in speculation on what his interest might be, but rather on Mr. Ayers to state with specificity the elenents set forth in Section 2.714 The reasons that denonstrate standing is absent here serve also to illustrate that the interest of the petitioner is not sufficient to meet the requirements of 10 CFR 9 2.714.
In addition, the Ayers Letter fails to mention any aspects of a hearing on which he wishes to be heard.
Mr. Ayers is not, however, without avenues to pursue legitinate con-plaints he may have in the areas of health and safety. At the time the Catawba operating license hearings are noticed, he may seek to be heard.
In addition, the availability of procedures under 10 CFR 5 2.206 remain should he elect not to await the Catawba operating license phase. Since the Ayers Letter is so totally lacking in merit with regard to the standards for initiating an antitrust hearing, there is no reason to expect that an oppor-i tunity to redraf t the request for a hearing would result in a product which I
would satisfy the applicable requirements.
C.
Discretionary Intervention 1.
4 In addition to standing as a matter of right, the Commission has deter-mined that a petition for intervention may be granted as a matter of discretion l
to certain petitioners who may make some contribution to the proceeding.
l Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),
CLI-76-27, 4 NRC at 610, 616-617 (1976). Although the Aycc.s Letter is cast I
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as a request for a hearing and does not explicitly request intervention, we i
will consider it as such for purposes of discussing discretionary intervention.
In detemining whether to grant intervention as a natter of discretion, the Licensing Boards have been directed to consider all the facts and circum-stances of a particular case, including sone of the factors set forth in 10 CFR 6 2.714(a) and (d). _See V_irginia Electric Power Co. (North Anna Power Station, Units 1 & 2), ALAB-363, 4 NRC 631 (1976).
Factors considered have also included:
(1) a petitioner's showing of significant ability to contribute on substantial issues of law or fact which will not be other-wise properly raised or presented; (2) the specificity of such ability to contribute on those sub-stantial issues of law or fact; (3) justification of time spent on considering the substantial issues of law or fact; (4) provision of additional testimony, particular expertise, or expert assistance; (5) specializededucationorpertinentexperience.E/
The Staff maintains that the one-page letter of fir. Ayers fails to make even a rudimentary showing of any of the factors set forth in 5 2.714(a) and (d) or of those other factors listed above. Since the Ayers Letter fails to set forth any anticompetitive concerns, there cannot be demonstrated any l
r 16
~/ Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 l
& 2), supra; Public Service Co. of Oklahoma (Black Fox Units 1 and 2, ALAB-397, 5 NRC 1143 (1977) affiming in part LBP-77-17, 5 NRC 657 a
(1977); Tennessee Valley Authority (Watts Bar Nuclear Plant Units 1 and 2), ALAB-413, 5 NRC 1418 (1977).
i i "significant ability to contribute on substantial issues of law or fact."
t f
Also, Mr. Ajers Letter fails to reveal any allegation that would lead to a r,
reasonable expectation that he would provide expertise, expert assistance, or additional testinony that would be helpful to any proceeding.
This seems especially true where there is no Catawba antitrust proceeding now under way, where the Attorney General has advised that no antitrust hearing is necessary, and where the Ayers Letter is the lone regoast for a hearing.
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such circur. stances, a petitioner's showing on tne criteria for discretionary intervention must be particularly strong.EI As the Appeal Board said in Detroit Edison Company:
What we said in Watts Bar applies here:
"Certainly, before a hearing is triggered at the instance of one who has not alleged any cognizable personal interest in the operation of the facility, there shogld be cause to believe that some discernible public interest will be served c
by the hearing.
If the petitioner is unequipped to offer anything of importance bearing upon [ subject natter], it is hard to see what public interest conceivably might be furthered by nonetheless commencing a hearing at his or her behest."H/
In the absence of any basis for determining that Mr. Ayers would make a
" valuable contribution... to our decision-naking process,"El or otherwise further the public interest, the Ayers Letter does not warrant the granting of discretionary intervention.
E/ Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2),
ALAB-413, 5 NRC 1418, 1422 (1977); Detroit Edison Co. (Enrico Femi Atomic Power Plant, Unit No. 2), ALAB-475, 7 NRC 752, 758 n.19 (1978).
H/ ALAB-475, 7 NRC at 758 n.19.
19/ Portland General Electric Co. (Pebble Springs Nuclear Plant, Units I and 2), supra, at 617.
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V.
C0tiCLUSI0t1 Mr. Ayers failure to show a direct injury in fact and his failure to set forth any interest which meets the " zone of interests" test establish that he lacks the requisite standing.
In addition, the Ayers Letter, on its face, does not satisfy the general requirenents of 10 CFR l 2.714 or those set forth in Wolf Creek for antitrust hearings and intervention, which must be met in all requests.
Further, no showing on the factors which are necessary to pemit discretionary intervention is made in the Ayers Letter. Accordingly, the Licensing Board should expeditiously deny the Ayers ret;est.
Respectfully submitted, Aebs Fredric D. Chanania Counsel for NRC Staff Dated at Bethesda, Maryland
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this 9th day of January,1981.
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k UNITED STATES OF At! ERICA NUCLEAR REGULATORY COMt1ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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t DUKE POWER COMPANY
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incket No. 50-413A 7
(Catawba Nuclear Station, Unit b.
)
i CERTIFICATE OF SERVICE I hereby certify th t copies of "NRC STAFF'S ANSWER TO RE0' JEST FOR AN ANTITRUST HEARING BY HARVARD G. AYERS" 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 asterick through deposit in the Nuclear Regulatory Commission's internal mail system, this 9th day of Ja nua ry, 1981.
B. Paul Cotter, Jr., Esq., Chairman William L. Pcrter, Esq.
Atomic Safety and Licensing Board Duke Power Company U.S. Nuclear Regulatory Commission P. O. Box 33189 Washington, D.C.
20555
- Charl~otte, North Carolina 28242 o
Docketing and Service Section North Carolina MPA-1 Office of the Secretary Suite 208 U.S. Nucl?ar Regulatory Commission 222 North Person Street Washington, D.C.
20555
- Raleigh, North Carolina 27601 Jerome Saltzman, Chief Harvard G. Ayers Utility Finance Branch Rt 3 Box 662 U.S. Nuclear Regulatory Commission Boone, North Carolina 28607 Washington, D.C.
20555
- Richard P. Wilson, Esq.
Atomic Safety and Licensing Board Assistant Attorney General U.S. Nuclear Regulatory Commission S. C. Attorney General's Office Washington, D.C.
20555
- P. O. Box 11549 Columbia, South Carolina 29211 Joseph B. Knotts, Jr., Esq.
J. Michael McGarry, III, Esq.
William C. Wise, Esq.
Debevoise & Liberman Ring Bldg.
Suite 500 1200 Seventeenth Street, N.W.
120018th Street, N.W.
Washington, D.C.
20036 Washington, D.C.
20036 s
- p..
1, t
. State Clearinghouse Chairman j
Office of the Governor South Carolina Public Service Division of Administration Commission 1205 Pendleton Street P. O. Box 11649 4th Floor Columbia, South Carolina 02903 J
Columbia, South Carolina 29201 l'
Chairr:an Attorney General North Carolina Utilities Commission P. O. Box 11549 430 North Salisbury Street Columbia, South Carolina 29211 Dobbs Building I
Raleigh, North Carolina 27602 Attorney General Department of Justice Justice Building
[
Raleigh, North Carolina 27602 Federal Energy Regulatory Commission i
825 North Capital Street, N.E.
i Washington, D.C.
20426 i
K 1'_ M _ '
Fredric D. Ch'anania i
Counsel for NRC Staff 2
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