ML20010B297

Response to Palmetto Alliance (PA) 810723 Petition to Intervene & Request for Hearing.Pa Has Satisfied Intervention Std & Representation Should Be Limited to Specific Organization & Members

ML20010B297
Person / Time
Site:	Catawba
Issue date:	08/07/1981
From:	Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8108140333
Download: ML20010B297 (7)

Text

, NI y UNITED STATES OF AMERICA 8/

NUCLEAR REGULATORY COMMISSION  % g BEFORE THE ATOMIC SAFETY AND LICENSING BOARD LI' A'JG 121981 > ~"

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In the Matter of )

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• DUKE POWER COMPANY, et al.

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) Docket lo. 50-413

) 50-414 ICatawba Nuclear Station, )

Units 1 and 2)

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APPLICANTS' l_/ RESPONSE TO PALMETTO ALLIANCE PETITION TO INTERVENE AND REQUEST FOR HEARING On June 25, 1981, a " Notice of Receipt of Application for Facility Operating Licenses..." concerning the captioned proceeding was published in the Federal Register. (46 Fed.

Reg. 32974). On July 23, 1981, Palmetto Alliance, in response to such Notice, filed a " Petition to Intervene and Request for Hearing." Pursuant to 10 CFR $2.714 (c) Appli-cants make the following response to the Petition.

On May 26, 1978, the Nuclear Regulatory Commission amended its Rules of Practice to facilitate public parti-cipation in its license application review and hearing process. 43 Fed. RS . 17798 (April 26, 1978). With parti-ciclar reference to the standard by which petitions t @ #

. intervene wonld be judged, the Commission stated:

The petition shall set forthwithparticularip 3N the interest of the petitioner in the proceed 1s,,,bg 1 [ , /d how that interest may be affected by the resu.Ts 9A /

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1,/ " Applicants" refers to Duke Power. Company, North Carolina Municipal Power Agency Number 1, North Carolina Electric Membership Corporation and Saluda River Electric Cooperative, Inc.'

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of the proceeding, including the reasons why petitioner should be permitted to intervene, with particular reference to the factors in paragraph (d) of this section, and the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene. 10 CFR $2.714(a)(2).

In determining whether the Alliance has satisfied the intervention standard Applicants have been guided by NRC case law, principally Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 & 2), ALAB-522, 9 NRC 54 (1979). Given the fact that the submitted affida-vits of members of Palmetto Alliance indicate residency, as well as business and recreational use, in close proximity to the Catawba Nuclear Station, Applicants acknowledge that pursuant to North Anna, s u p r a', Palmetto Alliance has satis-fied the intervention standard as centemplated in 10 CFR 2.714. Applicant' hasten to add that.their position with regard to intervenor status should in no way be viewed as a concession with respect to the subject matter of-such inter-vention. Rather, Applicants will await the filing of con-tentions 2/ and will respond in the appropriate fashion.

I 2/ Under the amended rules, petitions for -intervention r.eed

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not set forth contentions. Rather, the petitioner has until 15 days before t.he holding of the special or first prehearing conference in which to- file his contentions l

in the form of a supplement to the petition. 10 CFR

$2.714(b); Nuclear Engineering Company, Inc. (Sheffield, i

Illinois, Low-Level Radioactive Waste Disposal Site),

LLAB-473, 7 NRC 737, 743 n.5 (1978).

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As a Jinal matter, Applicants are of the view, based on past experience, that it is important for this Board to clearly delineate the scope of the proceeding at the outset.

In this regard, Applicants request thic Board to consider two issues which bear on the scope of the proceeding, viz.

Palmetto Alliance's attempt to raise antitrust concerns in this proceeding and its ability to represent "other persons who are similarly situated." Each of the matters is addressed below.

1. Antitrust Jurisdiction.

" In its Petition, the Alliance seeks to raise antitrust issues.

Such issues cannot be heard in any proceeding order-ed pursuant to the June 25, 1981 Notice, which offered an opportunity for "any person whose interest may be affected (46 by this proceeding" to intervene and r.equest a hearing.

Fed. Reg. 32975). The issues to be considered in this pro-ceeding are limited to health, safety, and environmental issues. 3/ Should an , antitrust review in connection with l

l 3/ In determining whether an issue raised in the Alliance's l

Petition is within the scope of the proceeding, the Board is bound by the Commission's Notice of hearing, which sets the scope of the proceeding, and establishes the authority of this Board. Carolina Power & Light Company Units 1, 2, 3 & 4),

(Shearon Harris Nuclear Power Plant, ALAB-577, 11 NRC 18, 25 (1980); Pacific Gas and Electric Unit No. 1), ALAB-Company (Stanislaus Nuclear Project, 400, 5 NRC 1175 (1977).

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the operating license be conducted, the Commission will order a separate proceeding. It is standard, and long-standing Commission policy to review antitrust matters raised .a connection with the licensing of a facility

" separately from the hearings held on matters of radio-logical health and safety" for the same facility. See 10 CFR Part 2, Appendix A. X(e), Duke Power Company (Oconee Nuclear Station, Units 1, 2& 3), Memorandum and Order, 4 AEC 592 (1971); Boston Edison Company (Pilgrim Nuclear Power Station), Memorandum and Order, 4 AEC 666 (1971).

In fact, the Commission's rules specifically provide that "unless the Commission determines otherwise" a hearing on the antitrust aspects of an application will be considered at a proceeding other than the one convened to hear environ-mental and safety matters. 10 CFR I2.1.04(d).

Clearly, then, in an instance such as this, where a Board is convened to rule on petitions filed in a proceeding pursuant to a notice 1,imited to environmental, health and safety issues, it lacks jurisdiction to order consideration of antitrust issues in that proceeding. See Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167 (1976) and the authorities discussed. Accordingly, the antitrust

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allegations raised in the Petition must be stricken. Id.;

see also, Houston Lighting & Power Company, et al. (South Texas Project, Units Nos. 1 and 2), ALAB-381, 5 NRC 582, 589 (1977).

2. Representation of "other persons who are similarly situated."

The Alliance has filed its Petition not only on its own behalf and on the behalf of its members, but also on behalf of "other persons who are similarly situated." (Petition, p.

1, paragraph 1). NRC precedent is clear that the Alliance cannot undertake the latter representation. See Long_ Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),

LBP-77-11, 5 NRC 481, 483-84 (1977) wherein it is stated:

It is a basic legal principle that one party may not represent another without express . authority to do so. Petitioners OHILI and North Shore have not presented any evidence that they are authorized-to represent persons other than their own members l and in' the absence of such proof their respective claims that they represent persons other than~their members must be rejected. See Gulf States Utilities

, Company (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 223 fn.4 (March 12, 1974); Allied-i l

General Nuclear Service (Barnwell Fuel Receiving

' and Storage Station), LBP-75-60, 2 NRC 687, 690 (October 1, 1975). OHILI's claim that it acts as private attorney general must also be denied.

There simply is no provision in the Commission's regulations for parties to act as private attorneys general. See Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2),

ALL3-333, NRCI-76/6, 804, 806 fn.6 (June 22, 1976);

cf Allied-General Nuclear Service, supra at 690).

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See also Allied-General Nuclear Service, et al. (Barnwell Fuel Receiving & Storage Station), LBP-75-60, 2 NRC 687, 690 (1975) wherein it is stated:

Moreover, as was held by the Atomic Safety and

'. Licensing Board in Mississippi Power and Light Company (Grand Gulf Nuclear Station Units 1 and 2), Docket Nos. 50-416, 50-417 (Prehearing Con-ference Order of May 15, 1973, pp. 2-3), sum-marized in ALAB-130, 6 AEC 423, note 1 (June 19, 1973), class actions are not permitted under the Commission's Rules of Practice, and in any event the petitioning organization has not shown that its claims and interests are typical of the alleged class.

Manifestly, there has not been, nor can there be, any demon-stration here that this Petitioner is authorized to represent the general public. See Sierra Club v. Morton, 405 U.S. 727 (1972); Nuclear Engineering Co., Inc. (Sheffield Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737 (1978);

Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420 (1976). Indeed, Congress i

has vested the function of representing the general public in the NRC Staff and the , Commission itself through the Atomic Energy Act. Accordingly, Palmetto Alliance's representation

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in this proceeding should be limited to the specific organi-zation and its members.

Respectfully submitted, be < &

J. Michael Mc Krry, I{

DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 857-9833 r

l Albert V. Carr, Jr.

DUKE POWER COMPANY P.O. Box 33189 i Charlotte, North Carolina 28242 l

l Attorneys for Duke Power company August 7, 1981 i

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