ML20038A421

Partially Withheld Commission Paper Re Tyrone Energy Park

ML20038A421
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Issue date:	09/30/1980
From:	Malsch NRC OFFICE OF THE GENERAL COUNSEL (OGC)
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FOIA-92-436, TASK-CC, TASK-SE SECY-A-80-146, NUDOCS 8110290530
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{{#Wiki_filter:< s s UNITED STATES NUCLEAR REGULATORY COMMISSION SECY-A-80-146 September 30, 1980 WASHINGTON, D. C. 20655 CONSENT CALENDAR ITEM ADJUDICATORY' The Commissioners For Martin G. Malsch, Deputy General Counsel From: MEMORANDUM AND ORDER -- TYRONE ENERGY PARK

Subject:

UNIT 1 To propose a Memorandum and Order. e for hearing and deferral of license Purcose: request revocation filed by North and South Dakota y) public utility commissions. The Commission has before it a petition filed Discussion: by the North Dakota Public Service Commission and the South Dakota Public Utilities Commission (" Dakota Commissions") which requests that the Commission defer revocation of the Tyrone construction permit or grant a hearing at a deferral could be considered which such (Attachment 1). The licensee for Tyrone, Northern States Power Company ("NSP"), opposes the petition (Attachment 2 ), as does intervenor Northern Thunder (Attachment 3) and the NRC (Attachment 4). The Dakota Commissions ' staff lodged an additional filing replying to the NRC staff (Attachment 5). This controversy stems from the cancellation of the Tyrone project by the licensee in July and of 1979. Based upon this cancellation, having received a 10 CFR 2.202 request from a the Director Wisconsin public interest group, of NRR issued an Order to Show Cause in June of 1980 which proposed that the Tyrone con-struction permit be cancelled (Attachment 6). Power consented to the Order Northern State 8 and did not request a hearing (Attachment 7). frft: ;'.d ia tS: icud a diekd

Contact:

William M. Shields, OGC y a:cc:dr,ce v.dh ihr F reta c' lr,!:rmation x43224 A;!. exention-Lii ' F01A _.[2 - y_24 i 8/10M0530 J g 37

( o 2 The petition argues that revocation should be deferred on the possibility that the licensee may yet attempt i before Wisconsin regulatory to pursue the project authorities, which have to date refused to issue a State-required Certificate of Need for the plant. Dakota Commissions rest'their standing to request a hearing on the allegation that the cancellation will have an adverse economic ef fect on North and South to Dakota ratepayers, arguing that NSP would attempt l recover its losses on the project through rate i In increases attributable to the cancellation. their second filing, the Dakota Commissions also the " interested States" relied,upon 10 CFR 2.715(c), provision. e The proposed Memorandun and Order sets forth the 1 j f actual background in somewhat more detail. above and l We then proceed to analyze the standing issue, ,/ ,f,concludethat 1 } J. ]- F, a Ie li t l Martin G. !!alsch Deputy General Counsel Attachments: 1-B i 1 i 1

4 .j. Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Wednesday, October 15, 1980. Commission Staff Office comments, if any, should be submitted to the Commissioners If NLT October 7,1980, with an information copy to the Office of the Secretary. the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected. This paper is tentatively scheduled for affirmation at an Open Meeting during the Please refer to the appropriate Weekly Commission Schedule, Week of October 20,.1980. when published, for a specific date and time. DISTRIBUTION Commissioners Commission Staff Offices Secretariat e

1 4 UNITED STATES OF AMERICA Y j BEFORE TBE NUCLEAR REGULATORY COKMISSION )

!D Northern States Power Co., ~et al.

) Docket No. (Tyrone Energy Park, Unit T)~~ ) STN-50-4 A( J' b_ _ 57 i v. MOTION TO DEFER COMMISSION ACTION, '~~~ PETITION'TO INTERVENE OUT OF TIME, AND REQUEST FOR HEARING Pursuant to the Commission's Rules of Practice and 1980 in Procedure and the Commission's Notice dated June 16, the above-captioned docket, the North Dakota Public Service Commis, ion and the South Dakota Public Utilities Commission (" Dakota Commissions"), through th' attorneys, hereby peti-tion for leave to intervene out of rime, file comments and roguest a hearing, as set forth herein, and move that the Commission defer its proposed action to revoke the Construction Permit issued to the Northern States Power Companies ("NSP") for Unit 1 of the Tyrone Energy Park Project. I. The names and addresses of the individuals to whom all correspondence should be addressed and communications chould be made are: Frances E. Francis, Esq. Ray B. Walton, Esq. John Michael Adragna, Esq. Commerce Counsel Spiegel & McDiarmid North Dakota Public 2600 Virginia Avenue, N.W. Service Commission Washington, D.C. 20037 Capitol Building Bismarckr North Dakota 58505 Walter Washington. Erg. Assistant Attorney General South Dakota Public Utilities Commission Capitol Building Pierre, South Dakota 57501

Each of the Dakota Commissions seeks permission to intervene separately as enca commission is responsible for jurisdiction that does not overlap with any other party and has interests that 'can only be represented by its own participation. I II. The proposed action to revoke NSP's Construction Permit arises from NSP's decision to cancel the 'tyrone Project, as stated in a letter to the NRC dated July 26, 1979. Subsequent to that time, the Dakota Commissions have participated in proceedings in Wisconsin and before the Federal Energy Regulatory Commission ("FERC") related to the costs of the Tyrone cancellation. Although the Tyrone Plant is wholly owned by NSP and located within Wisconsin, NSP pro-poses to collect the bulk of the costs of cancellation (i.e., 87% of an open-ended $57 million loss) from NSP-Minnesota's customers located in Minnesota, North Dakota and South Dakota through the rates charged to these customers by NSP's parent company, NSP-Minnesota. The Dakota Commissions regulate electric rates'at retail to NSP-Minnesota's customers within their respective jurisdictions. NSP-Minnesota has recently filed retail rate increases in each of the States of North Dakota and South Dakota, and all these rate increases reflect costs attribu- ~ table to the Tyrone cancellation. Consequently, each of the Dakota Commissions is directly and substantially affected by -s

the Commission's action in this proceeding. Moreover, Dakota i Commissions have participated as parties in an NSP-Wisconsin and NSP-Minnesota FERC proceeding in which th.e two related Companies seek accounting authorization to reflect the bulk of the cancellation costs as costs to the NSP-Minnesota customers that can be flowed through the wholesale rates and ultimately, according to NSP, through the retail rates to NSP-Minnesota's customers. (FERC Docket No. ER79-616) Bearings have been completed and briefs to the Administrative Law Judge are to be filed shortly in the FERC proceeding. Although the position of the Dakota Commissions has not yet been fully expressed, it is generally the position of' the Dakota Commissions that customers of K' Cinnesota should not be required to bear any of the costs a.isoct *ed with the Tyrone cancellation loss. During the course of the FERC proceeding, both NSP and counsel for the PSC of the State of Wisconsin, which denied a certificate of public convenience and need to NSP for the Tyrone Unit, stated that regulatory circumstances had changed in Wisconsin since the Wisconsin Commission's rejec-tion of the Tyrone Unit in early 1979. Dakota Commissions are uncertain as to the impact of the cht.nged regulatory com-mission but do not believe it to be in the public interest to ~ bar the possible option raised during the FERC proceeding, namely, the refiling by NSP of its application for a

4 -4 It is certificate of need before the Wisconsin Commission.1/ the understanding of the Dakota Commissions that the Wisconsin PSC approval was the only major regulatory approval needed prior to construction of the Ty'rone Unit. In light of the very substantial costs incurred by the cancellation of the Tyrone Unit 2/ and NSP's attempts to recover these costs from its ratepayers who will receive no benefit whatsoever for these costs, the Dakota Commissions are seeking to keep open the array of potential resolutions to a most unfortunate situation. One such resolution may well be, as noted above, the refiling with the Wisconsin Commission of NSP's Application, especially in light of even the 1979 Wisconsin Commission's determination that some base load capacity is needed in Wisconsin. III. The various proceedings should be completed or well enough along within the next 12 months to permit all the i h Commission whether interested parties and fora to adv se t e the nature of the Tyrone Unit cancellation is necessarily The company indicated it had not considered such a 1/ refiling but Dakota Commissions are not yet persuaded that such a course of action is either uneconomic or impractical. These costs were estimated at approximately $120 million ) 2/ Tor the entire Unit. NSP's portion is approximately 67% of the total estimate, but the exact amount that the Company will ultimately charge their customers is uncertain.

5-irrevocable. In short, nothing is really gained by the can-cellation at this time of the Construction Permit but much could be lost if it. vere determined subsequently that the most economic and beneficial course of action for the rate-payers of the NSP Companies would have been for NSP to refile its Tyrone certificate application before the Wisconsin Commission. IV. Dakota Commissions have not been participants in this Commission's proceedings inasmuch as the purported J licensee has teen NSP-Wisconsin, which is regulated by the Wisconsin Commission and the FERC. Moreover, South Dakota did not commence regulation of retail electric rates until mid-1975, by which time the NRC licensing proceedings had long since commenced. It was not until Dakota Commissions l and were made aware of NSP's cancellation of the Tyrone Unit its proposed pass-through of the cancellation costs to NSP-Minnesota's ratepayers, both wholesale and retail located in the Dakotas, that these matters became of concern to the Dakota Commissions. In light of the limited relief sought by the Dakota Commissions, there would appear to be no need to require a hearing or other formal proceeding at this time. However, if the Commission determines that a hearing is required to act on the Motion set forth herein, Dakota Commissions request such hearing.

4 V. Dakota Commissions note that 5186 of the Atomic Energy Act (42 U.S.C. 52236) provides for revocation of licenses by the Commission upon any f.inding of misrepresentation, misconduct,'or noncompliance with license specifications, by the licensees. This section does not pro-vide procedures for revocation of the license upon request of the licensee. As NSP, not the Commission, has requested revocation of its construction permit, Dakota Commissions raise the question of the proper scope of inquiry by the Commission in revocation proceedings of this sort. In light of the Commission's exclusive authority over construction operation and licensing of nuclear plants, and in light of the Commission's interest in promotion and development of atomic energy nationwide it would seem that NSP's request for permit revocation merits close scrutiny by the Commission. The Tyrone Unit is part of an interstate plan for the development and sale of electric energy. Its can-cellation by the Wisconsin PSC and the resulting request for permit revocation by NSP, will have a substantial and nega-tive impact on the interstate market for electric power and on future integration and multi-state power planning to ~ achieve an economic and reliable power supply for the region. Because of their interest in interstate energy development,

.. and the potentially detrimental ef fect of the Tyrone Unit concellation on such development, the Dakota Commissions ask ~ the NRC to consider the impact upon the concerns raised horein in determining whether the Commission abould act now to revoke the Tyrone license. CONCLUSION WHEREFORE, for all the reasons set forth herein State Commissions respectfully request (i) that their Petition to Inter ~vene Out of Time be granted; (ii) the Commission defer issuance of its proposed Order to revoke for ^* 12 months; and (iii) if the Commission determines it necessary, a hearing be held to determine why the order chould not be issued at this time and such other matters it believes appropriate for Commission determination. Respectfully submitted, m( nh Frances E. Francis Attorney for the South Dakota Public Utilities Commission and the North Dakota Public Service Commission July 11, 1980 Law Offices of: Spiegel & McDiarmid 2606 Virginia Avenue, N.W. Washington, D.C. 20037 202-333-4500

UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION Northern States Power Co., et al. ) Docket No. (Tyrone Energy Park, Unit I)-- ) STN-50-484 CERTIFICATE OF SERVICE I hereby certify that I have caused copies of the foregoing MOTION TO DEFER COMMISSION ACTION, PETITION TO INTERVENE OUT OF TIME, AND REQUEST FOR REARING to be served on the following parties by deposit in the United States mail, first class, postage paid, this lith day of July,1980. Executive Legal Director Director Office of Nuclear Reactor Office of Nuclear Reactor Regulation Regulation U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Ivan W. Smith, Esq. Mr. Peter Pesheek Chairman-Atomic Safety and Public Intervenor Licensing Board Department of Justice U.S. Nuclear Regulatory 123 West Washington Avenue Madison, Wisconsin 53702 Commission Washington, D.C. 20555 Honorable Sandra S. Gardebring Atomic Safety and Licensing Special Assistant Attorney General Board U. S'. Nuclear Regulatory 1935 West County Road B2 Roseville, Minnesota 55113 Commission Washington, D.C. 20555 Mrs. Barold C. Bauer Dr. George C. Anderson Citizens for Tomorrow, Inc. Department of Oceanography Route 1, Box 191 University of Washington Rock Falls, Wisconsin 54764 Seattle, Washington 98195 Michael J. Cain, Esq. Counsel for NRC Staff Bureau of Legel Services Of fice of the Executive Department of Natural-Resources Box 7921 Legal Director Madison, Wisconsin. 53707 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ms. Helen M. Kees Route 3 Gerald Ch'arnoff, Esq. Durand, Wisconsin 54736 Jay E. Silberg, Esq. CAUSE Shaw, Pittman, Potts & c/o Mr. Tom Richards Trowbridge 1800 M Street, N.W. Route 1 Washington, D.C. 20036 Boyceville, Wisconsin 54725

'Mr. Edward Gold 1 Steven M. Schur, Esq. Wisconsin Public Service 814 Fourth Street Commission Menomonie, Wisconsin 54751 Hill Farms State Office Bldg. J 4802 Sheboygan Avenue Mr. Tom Galazen Madison, Wisconsin 53702 R.R. 92, Box 64 Turtle Lake, Wisconsin 54889 Richard Ihrig, Esq. Ray B. Walton, Esq. 874 Summit Avenue Commerce Counsel St. Paul, Minnesota 55105 North Dakota Public Service Commission Mr. Stanley Cider Capitol Building Bismarck, North Dakota 58505 c/o Durand Postmaster Tyrone, Wisconsin 54736 Walter Washington, Esq. Assistant Attorney General Richard S. Salzman, Esq. Chairman-Atomic Safety and South Dakota Public Utilities Licensing Appeal Board Commission U.S. Nuclear Regulatory Capitol Building Pierre, South Dakota 57501 Commission Washington, D.C. 20555 Rodney Wilson, Esq. Special Assistant Attorney General Michael C. Farrar, Esq. Atomic Safety and Licensing Minnesota Public Service Commission 790 American Center Building Appeal Board U.S. Nuclear R'egulatory 150 East Kellogg Boulevard Commission St. Paul, Minnesota 55101 Washington, D.C. 20555 George Bruder, Esq. Bruder & Gentile Dr. W. Reed Johnson Atomic Safety and Licensing 1201 Connecticut Avenue, N.W. Appeal Board Washington, D.C. 20036 U.S. Nuclear Regulatory Alan Wolf, Esq. Commission Federal Energy Regulatory Washington, D.C. 20555 Commission 825 North Capitol Street, N.E. Northern States Power Company. Washington, D.C. 20426 Attn Mr. Arthur Dienhart V. Pres. - Engineering Kenneth F. Plumb 414 Nicollet Mall Secretary Minneapolis, MN 55401 Federal Energy Regulatory Commission 825 North Capitol Street, N.E. Washington, D.C. 20426 E Auck Frances E. Francis July 11, 1980

July 22, 198

g, UNITED STATES OF AMERICA a,GG, Gap NUCLEAR REGULATORY COMMISSION MNao JUL2 3 Ego p OE# 08 BEFORE THE COMMISSION 1

/ In the Matter of ) p NORTHERN STATES POWER COMPANY, ) Docket No. STN 50-484 ET AL. ) (Order to Show Cause) ) (Tyrone Energy Park, Unit 1) ) j LICENSEES' ANSWER TO DAKOTA COMMISSIONS' MOTION TO DEFER COMMISSION ACTION, PETITION TO INTERVENE OUT OF TIME, AND REQUEST FOR HEARING On June 16, 1980, the Director, Office of Nuclear Reactor Regulation, issued on behalf of the Commission an Order to Show Cause why Construction Permit No. CPPR-157 should not be revoked. 45 Fed. Reg. 42093 (June 2 3, 1980). In response to the Order, the North Dakota Public Service Commission and the South Dakota Public Utilities Commission (collectively " Dakota Commissions") filed on July 11, 1980, a " Motion to Defer Commission Action, Petition to Intervene Out of Time, and Request for Hearing." Licensees Northern States Power Company, et al., submit this answer in opposi-tion to the Dakota Commission's motion, petition and request. Construction Permit"No. CPPR-157, whichaotho'rized the construction of Tyrone Energy Park, Unit 1, in Ddnn County, Wisconsin, was issued on December 27, 1977, pursuant 5 to decisions of the Atomic Safety and Licensing Board in

1 LBP-77-30, 5 N.R.C. 1197 (1977), and LBP-77-71, 6 N.R.C. 1232 The Atomic Safety and Licensing Board's initial decision (1977). was made effective immediately, but did not become the final action of the Commission. During the course of the Atomic Safety and Licensing Appeal Board's review, as the Commission's delegate, of exceptions taken to the Licensing Board's initial decision, Licensees announced the cancellation of the Tyrone 1/ Energy Park project. In an Order dated August 30, 1979, the ~ Appeal Board terminated all proceedings involving the applica-tion to license construction of this facility and dismissed the case. On August 15, 1979, Badger Safe Energy Alliance petitioned the Director, Office of Nuclear Reactor Regulation, to institute a proceeding pursuant to 10 C.F.R. 5 2.202 to 2/ revoke the construction permit. In response to this petition, the Director issued the June 16, 1980 Order to Show cause. Licensees answered the Order to Show Cause on July 1, 1980, they have no objection to the entry of an order stating that 3 revoking the construction permit. The Order to Show Cause provided that "[t]he Licensee or any person whose interest may be affected by this Order i may request a hearing within twenty-five (25) days of the-date of the Order, setting forth with part1cularity the interest of the person in the proceeding and how that interest Construction of the plant had not commenced because Licensees f have the requisite approvals by the State of Wisconsin. 1/ cid not Contrary to the assertion made by the Dakota Commissions, 2/ d revocation of the construction perm

• NSF did not request

/

45 Fed. Reg. may be af fected by the results of the proceeding." at 42094 (1980). position that no hearing should be It is Licensees' held on the order to Show Cause because Licensees have

facility, tion of renewing efforts to license construction of the because the Dakota Commissions have not actually requested a hearing, and because the Dakota Commissions do not have the requisite interest in the proceeding.

It has now been one year since Licensees cancelled Since that time the actions the Tyrone Energy Park project. Notices of termina-of Licensees have finalized that decision. been tion of all contracts associated with the project have given to equipment vendors, and many of such contracts have Licensees are actively negotiating the been terminated. h termination of all remaining contracts pursuant to suc Pursuant to an order of the Wisconsin Public Ser-notices. d vice Commission, Licensees Northern States Power Company an i Dairyland Power Cooperative are actively seeking author za-onstruct tion from the Wisconsin Public Service Commission to c 3/ ditional coal-fired plants in western Wisconsin ~ to meet the ad by requirements of customers which were to have been served is entirely unrealistic Consequently, it Tyrone Energy Park. Tyrone to assume or hope that Licensees will ever construct ih Energy Park under Construction Permit No. CPPR-157, wh c The Tyrone site is one of the western Wisconsin sites under consideration for a coal-fired plant. 3/

-4 was issued by the Nuclear Regulatory Commission on December 27, 1977. Furthermore, Licensees have no further intention ever to construct Tyrone Energy Park under such Construction Permit. In another case where a nuclear plant project was terminated while the Atomic Safety 'and Licensing Appeal Board was reviewing the Atomic Safety and Licensing Board's initial decision authorizing issuance of the permit, the Appeal Board instructed the Director of Nuclear Reactor Regulation to revoke the outstanding construction permit. See Rochester Gas and Electric Corporation (Sterling Power Project, Nuclear Unit No. 1), ALAB-596, 11 N.R.C. (June 17, 1980). Licensees believe that the same action is warranted here and that the Commission should grant, without a hearing, the relief requested by the Badger Safe Energy Alliance. In view of Licensees' clear abandonment of the project, we also oppose the Dakota Commissions' notion to defer Commission action. There is no persuasive reason to def er the achievement of administrative finality in this docket. Second, the Dakota Commissions have not requested a hearing as provided in the Order to Show Cause. On page 6 of their pleading the Dakota Commissions state that: In light of the limited relief sought by the Dakota Commissions, there would appear to be no need to require a hearing or other formal proceeding at this t'ime. However, if the Com-mission determines that a hearing is required to act on the Motion set forth herein, Dakota Commissions request such hearing. the Dakota Commissions seek a hearing only if one In short, is required to rule on their motion to defer Commission issuance

. of the proposed Order for 12 months. Clearly, however, the Commission may rule upon such a procedural request without the conduct of an evidentiary hearing. The Order to Show Cause specifically provides that the only. subject of any hearing held shall be "[w)hether, on the basis of the Li-censee's announced decision to cancel construction of the Tyrone Energy Park, Unit 1 facility, this Order should be In the absence of a challenge to the merits sustained." of the Order, there is nothing to be heard. Further, where a licensee consents to an order and does not demand a hearing, a hearing is not required by 10 C.F.R. S 2.202 and would be entirely at the Commission's discretion.

Finally, Licensees question whether the~ Dakota Com-missions have the requisite interest to be granted any hearing on the Order.

Under the Atomic Energy Act and the Commission's Rules of Practice, in order to allege sufficiently an interest which may be affected by the Order, the Dakota Commissions must allege, inter alia, an interest arguably within the zone of 1 interests to be protected or regulated by the statute sought to be invoked. See Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 N.R.C. 1418, 1420 i (1977), quoting Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2), ALAB-397, 5 N.R.C.

1143, 1144-1145 (1977).

The Atomic Energy Act was not intended to protect a person's interest in the rates charged by a utility for the electricity it supplies. Watts Bar, supra, 5 N.R.C. 1

at 1421 (1977). The Commission has squarely held that (at least outside the antitrust sphere) an interest in electric rates does not f all within the " zone of interests" protected by the Portland General Electric Coreany, et al. Atomic Energy Act. (Pebble Springs Nuclear Plant, Unit:s 1 and 2), CLI-76-27, 4 N.R.C. 610, 614 (1976). The only interest asserted here by the Dakota Commissions is in the consequences of the Tyrone Energy Park cancellation costs on the retail electric rates regulated by those commissions. This is not an interest which the Nuclear Regulatory Commission may protect under the Atomic Energy Act. For all of the foregoing reasons, Licensees urge the Commission to deny the Dakota Commissions' motion to defer Com-for hearing. mission action, petition to intervene and request Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE hm Thomas A. Baxter Counsel for Licensees r 1800 M Street, N.W. Washington, D.C. 20036 (202) 331-4100 Dated: July 22, 1980 O

NORTHERN. THUNDER-NORTH P.O. Box 334, Turtle I.ake, WI 54889 UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGUIATORY COMMISSION

• IORTHERN STATES POWER COMPANY,,e_t al. ) Docket No. STN 50-484

.Tyrone Energy Park, Unit 1) ) NORTHERN ThTNDER COMMENTS IN OPPOSITION TO MOTION BY DAKOTA COMMISSIONS Northern Thunder hereby asserts its opposition to the motion of the Dakota Commissions, dated July 11, 1980, to intervene out of time, file comments, request a hearing, and defer revoca-tion of the Tyrone construction permit. During the long months (years) of exhaustive filings and weeks of indepth hearings the Dakota Commissions failed to arise to demonstrate any interest concerning the impact of Tyrone on the health, safety, environmental quality or economic well being of residents of their states. Now, after laying in the weeds during 8 years of proceedings and debate, the same Dakota Commissions would have the NRC and the parties defy and deny the culmination of their efforts and replay history. Based upon that absence and the following the motion should be rejected. j The Dakota Commissions seek status as independant parties-but fail to assert their interest before this Commission as a unit and fail miserably to establish their interest as separate and independant parties. Most of the motion filed by the Dakota Commission consists of complaints.concerning the assignment of losses from the Tyrone unit to utility customers. However, the NRC has no jurisdiction in resc1ving that controversy.

-2 The Dakota Commission motion defys the stated intention of NSF to acandon the Tyrone nuclear unit and seek construction of a coal facility. Neither the NRC nor the Dakota Commissions can now compel the utility to again pursue the Tyrone scheme. The Dakota Commissions assert that regulatory circumstances in Wisconsin have changed and imply'the WI Public Service Commission might now accept the Tyrone application. The Motion offers no evidence in this regard and, indeed, none exists. Moreover. the l motion fatally disregards the overwelming public opposition to the Tyrone nuclear plant. Even if USP were to once again seek construction of the Tyrone unit, regulations and other circumstances (attributable in part to TMI) will have changed so dramatically that a wholly new application before the NRC would be warranted.' The Dakota Commissions offer as the lame excuse for non partici-pation in the Tyrone proceedings that "the purported licensee has been N SP-WI. " In reality, sponsorship by NSP-WI arose only late in the NRC regulatory process, after nearly all essential filings and hearings had occurred. In conclusion. the Dakota Commission filing is self-serving, whimsical, ill-conceived, unreasonable, poorly founded, and a waste of time and resources of the NRC and the parties. It should be dispensed with hastely and the Tyrone Construction Permit revoked. Due to mid-year budgetary constraints Northern Thunder has had to depart from standard format with this document by omitting copies of the 2-page service'11st. However, I do hereby certify that copies of this filing have been sent to the service lict attached to the Dakota Commission If.otion and to the individuals listed on its page 1. ecrectfull submitted for Northern Thunder this 23rd day of July,1980, o 4 v'C C.

IN t,\\ (, h/29/80 s; 2 el PP 4 s \\ 9 g I U U NUCLEAR REGULATORY COMMISSION-l@ J U L 3 0 m m x UNITED STATES OF AMERICA " Of5cs of the Sacrotuy BEFORE THE COMMISSION Docket!og & Servks. '; Branch

• /,,,Ib \\

In the Matter of NORTHERN STATES POWER Docket No. STN 50-484 COMPANY, et al. (Order to Show Cause) (Tyrone Energy Park, Unit 1) NRC STAFF'S ANSWER TO DAKOTA COMMISSIONS' MOTION TO DEFER COMMISSION ACTION AND REQUEST FOR HEARING The Permittees, Northern States Power Company, et al. (NSP), hold Construction Permit No. CPPR-157 which authorizes the construction of the Unit I nuclear power reactor at the Tyrone Energy Park in Dunn County, Wisconsin. On June 16, 1980, the Director of the Office of Nuclear Reactor Regulation (NRR) issued an Order to Show Cause why Construction Permit No. CPPR-157 should not be revoked. 45 Fed. Reg. 42093 (June 23, 1980) (Enclo-sure 1). On July 11, 1980, the North Dakota Public Service Commission and the South Dakota Public Utilities Commission (hereinafter Dakota Comission moved that the Commission defer the Director's proposed revocation of the construction permit. The Dakota Commissions also requested a hearing on the Order.Il For the reasons stated in this filing, the motion-to defer the The Dakota Commissions' " Motion to Defer Commission Action, Petition to ,1) Intervene Out of Time, and Request for Hearing" (hereinaf ter " Motion") The Dakota Commissions did not-serve their is at_tached as Enclosure 2.Because the Motion purports to be in part a Motion on the Commission. request for a hearing, the Staff, as a potential party to any hearing on the Order, cannot rule on the request for a hearing.' The Dakota Commis-sions' Motion is therefore appropriately before the Commission for action.

revocation of the construction permit should be denied. In addition, the Commission should deny the Dakota Commissions' request for a hearing on the Director's Order. I. BACKGROUND TO THIS PROCEEDING Construction Permit No. CPPR-157 was issued on December 27, 1977, and is set to expire by its own terms on October 1, 1985. The Director's Order to Show Cause describes several events preceding his issuance of the Order that bear on the cancellation of the Tyrone project. In July 1979, the Permittees announced their decision to cancel the Tyrone project.S/ The reason assigned by the Permittees for this decision was the Wisconsin Public Service Commission's denial of an application for a certificate of public convenience and necessity for the Tyrone project. The Permittees requested that the Staff and the Atomic Safety and Licensing Appeal Board terminate further action in the Tyrone docket. In its Order of August 30, 1979, the Appeal Board terminated pending proceedings concerning the Tyrone facility. On August 15, 1979, the Badger Safe Energy Alliance petitioned the Director of NRR to revoke the Tyrone construction permit. Because the Permittees intended no longer to conduct activities under the construction permit which would serve a useful commercial purpose within the mean'ing of the Atomic Energy Act, the Director of NRR issued the Order The Permittees have consented to the entry of a final order to Show Cause. See 44 f ed. Reg at 42,094. For ease of reference, the Staff has attached 2/ the documents referenced in the Order as Enclosures 3-6. ~

' revoking the construction pemit.U Except for the request filed by the Dakota Commissions, no other person has requested a hearing on the Director's-OrdertoShowcause.M Although the Dakota Commissions " petition for leave to intervene out of time, file comments and request a hearing and move that'the Commission defer its proposed action to revoke the Construction Permit", the Dakota Commissions' filing is ambiguous with respect to whether they are requesting infomal consideration of their views (i.e., outside the context of fomal proceedings on the Order) or are demanding that fomal proceedings be insti-i tuted on the Order to Show Cause: "In light of the limited relief sought by the Dakota Commis-sions, there would appear to be no need to require a hearing However, if the or other fomal proceeding at this time. I See letter from Thomas A. Baxter, Counsel for Pennittees, to Harold R. Under 10 CFR 2.202(e) a licen-3f Denton, dated July 1, 1980 (Enclosure 7). see's consent to the entry of an entry of an order constitutes a waiver i of the licensee's rights to a hearing and to contest the validity of the An order issued with the licensee's consent has the same force and effect as an order issued after a hearing by the presiding officer order. The Commission's policy is to encourage licensees to or the Commission. consent to rather than to contest,(orders and other enforcement act Public Service Company of Indiana Units 1 & 2), CL1-80-10,11 NRC 438, 441- (1980). Counsel for the Badger Safe Energy Alliance has acknowledged receipt of the Order to Show cause, but has not requested a hearing on the Order. y Letter from Richard Ihrig to Harold R. Denton, dated July 7,1980 16, 1980 (Enclosure 8). Mr. Ihrig was informed by letter of June (Enclosure 9) th pemit had been granted by virtue of the Director's issuance of the j Order to Show Cause. ~

4 4-j Commission detemines that a hearing is required to act on the Motion set forth herein, Dakota Commissions request such hearing."5/ In either event, for the substantive reasons which follow, the Commis- ) - sion should decline to grant the relief sought, by denying the request for a hearing on the Order and declining to order the Director of MRR to defer revocation of the Tyrone construction permit. THE DAKOTA COMMISSIONS DO NOT HAVE A RIGHT TO A HEARING ON THE O II. SHOW CAtlSE Because the Dakota Commissions do not have an interest affected by the Order to Show Cause within the " zone of interests" protected by the Atomic Energy Act, the Dakota Commissions are not entitled by law to a hearing on In determining whether a person has a legal right to demand a the Order. hearing in connection with a proceeding or whether a person may intervene as Another ambiguity is found in the Dakota Commissions' See Motion at 5. request for " petition for leave to intervene.out of time", since the Dakota 5/ Commissions' filing was served within the twenty-five day period within This which persons could request a hearing'on the Order to Show Cause. portion of the request may refer to the fact that neither Commission participated in the proceedings on issuance of the construction pemit. Of course, issuance of the Order to Show Cause by the Director.of NRR instituted a new proceeding and does not constitute a. continuation of Fail-prior proceedings on issuance of the Tyrone construction pemit. ure to participate.in the prior proceedings concerning the same facility does not itself bar a person, assuming he is otherwise adversely affected by the new proceeding, from demanding a hearing or intervening in aInd hearing in a new proceeding. proceedings on a facility license must establish anew that they have an interest adversely affected by the.new proceeding in order to intenene in a hearing. It is, therefore, unnecessary to consider the Dakotafili Commissions filing was timely under the Order to Show Cause and the Dakota Commis-sions must establish any right to a hearing under the Order, not under the original construction pemit proceeding.

+ . i a matter of right in a hearing, this Commission applies judicial concepts of standing. Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), CLI-80-10,11 NRC 438,.439 (1980). To establish one's " standing", a person must satisfy a two-fold test: "First, one must allege some injury that has occurred or probably will result from the action involved. Under this injury in fact test a mere academic interest in a matter, without any real impact on the person asserting it, will not confer standing. One must, in addition, allege an interest ' arguably within the zone of interest' protected by the statute." Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CL1-76-27, 4 NRC 610, 613 (1976). To meet the " injury in fact" portion of the test, a person must show that "a cognizable interest of the petitioner might be adversely affected if the proceeding has one outcome rather than another." Nuclear Engineerina Co. (Sheffield Low Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978). The Dakota Commissions, asserting their responsibility to protect the interests of ratepayers within their respective jurisdiction, argue that customers of Northern States Power (NSP) in North and South Dakota may be injured economically by revocation of the construction permit, because these customers may have to pay higher rates to NSP which reflect costs attributable to cancellation of the Tyrone project.E The Dakota Commissions argue, in 6/ Motion at 2. The Dakota Commissions allege that NSP has filed retail rate increases before both Dakota Commissions and that these proposed ~ increases reflect costs attributable to cancellation of the Tyrone The Dakota Commissions also allege that they are participants project. in a proceeding before the Federal Energy Regulatory Commission in which NSP seeks accounting authorization to charge cancellation costs in wholesale rates that would eventually be reflected in retail rates to NSP customers in the Dakotas. M.

) . effect, that the proposed revocation adversely affects the since the revoca-tion may indirectly lead to decisions by other state and federal regulatory bodies that may pennit NSP to charge Dakota ratepayers a higher rate. Aside from an increase in rates attributable to Tyrone's cancellation, the Dakota Commissions assert that the cancellation of the Tyrone project may have detrimental effect on the interstate market for electric power and on future planning to achieve an economic and reliable power s'upply for the Motion at 6-7. The Dakota Comissions area including North and South Dakota. do not show, however, that the interstate market for electric power is 1 likely to be negatively affected such that consumers of electric power will The Dakota Commissions assert essentially be harmed by Tyrone's cancellation. A a generalized interest in adequate energy planning for their region. general interest in a prcblem, without a concrete demonstration of ham, is Nuclear Engineering Co., supra, 7 NRC at insufficient to confer standing. 741-43. Even if one assumes that the Dakota Commissions (and the ratepayers \\ whose interests the Comissions assert) are injured in fact by the Order to Show Cause, the Dakota Commissions are not entitled as a matter of right to The interests asserted by the Dakota Comissions \\ a hearing on the Order. are essentially econcmic interests, and such interests - at least outside the antitrust sphere - do not fall within the " Zone of interests" protected by the Atomic Energy Act.E As recently as this past February, the Appeal F Portland General Electric Co. (Pebble Springs Nuclear Plant, Units The Commission held that section 103b. of CLI-76-27, 4 NRC 610 (1976). the Atomic Energy Act, which provides for issuance of licenses for nuclear l facilities which will serve a "useful" purpose, did not p Atomic Energy Act. J_d_. a t 614 n.5.

' Board reaffirmed that interests " purely economic in character" do not confer standing under the Atomic Energy Act. HoustonPower&LightCo.(Allens Creek Nuclear Generating Station, Unit 1), ALAB-582,11 NRC 239, 242 (1980).8/ The ratepayers' interests asserted by the Dakota Commissions are quintessen-tially econ mic in character. Tennessee Valley Authority (Watts Bar Nuclear Power Plant, Unit 1 & 2), ALAB-413, 5 NRC 1418,1421 (1977). Although the Dakota Commissions are not legally entitled to a hearing on the Order to Show Cause, the Ccznmission could order a hearing, as a matter of discretion, on the proposed revocation of the Tyrone construction permit.El The Dakota Commissions themselves do not believe, however, that a hearing is necessary to act on their requests. Motion at 5. Because the Dakota Commissions do not believe a formal hearing is necessary to act on their requests, as well as for the reason that the subject of any hearing would be beyond the coverage of the Atomic Energy Act, the Comission should not order a hearing as a matter of discretion on the revocation of the Tyrone construction pemits. ) See also Portland General Electric Co., supra, 4 NRC at 614. Moreover, 8/ threatened economic ham is not sufficient to invoke the National ~ Enviromental Policy Act unless that ham "will or may be occasioned by the impact that the Federal Action under consideration would or might have upon the enviroment". Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1420-21 (1977). The Order to Show Cause was issued, of course, on the basis of considerations related to the Atomic Energy Act, not NEPA. In any event, issuance of an Order to Show Cause is not subject to NEPA requirements concerning preparation 10CFR51.5(d)(1). of impact statements and environmental appraisals. E. 40 CFR 1508.18(a), in which the bringing of enforcement actions -is excluded from the definition of " major federal action". 4 Cf. Rublic Service Co. of Indiana (Marble Hill Nuclear Generating Station, 9/ ITnits 1 & 2), LL1-eu-10,11 NRL 438, 442 (1980). ~

~ ' III. REVOCATION OF THE TYRONE CONSTRUCTION PERMIT SHOULD NOT BE DEFERRED The Dakota Commissions ask the Commission to defer the Director of NRR's proposed revocation for 12 months pending conclusion of various state and federal proceedings concerning in part pass-through of cancellation costs attributable to the Tyrone project. The Dakota' Comissions hold out the possibility that Northern States Power will refile its application for a certificate of need before the Wisconsin Public Service Commission, appar-ently the only remaining regulatory' approval needed prior to construction of the Tyrone project. Motion at 3-4. The Dakota Commissions are concerned that revocation of the construction pemit at this time may preclude the potentially "most economic and beneficial course of action for the rate-payers", i.e., the refiling of the application for a certificate of need. Motion at 5. -{ In view of the Pemittees' answer (dated July 22,1980) to the Dakota Commissions' motion, it seems unlikely that the Tyrone project will ever be built. The Pemittees state that they have no intention to construct the j Tyrone Energy Park under the NRC construction pemit. Moreover, the Pemit-tees state that they have taken steps to teminate contracts associated with the Tyrone project and that they are seeking authorization from the Wisconsin Public Service Commission to construct coal-fired plants to meet additional energy requirements which were to have been provided by the Tyrone unit. Answer at 3. No factual basis apparently exists, therefore, for the Dakota i ) Comissions' premise for deferring revocation, i.e., the potential refiling l of the Tyrone certificate of need before the Wisconsin Public Service Comission.

.g-More importantly, deferral of proposed revocation would be inappropriate on the grounds offered by the Dakota Comissions. The Dakota Commissions ask the NRC to consider the economic interests of Dakota ratepayers in determining whether to revoke the Tyrone construction permit. The NRC should decline this invitation to inquire into the impact on rates and on regional energy planning that the Tyrone project's cancellation may have. The Dakota Commissions' request is based in part on their erroneous impres-sion that the NRC has an " interest in promotion and development of atomic energy nationwide". Motion at 6. The NRC has, of course, no such interest in promoting and developing the use of nuclear energy. The NRC's responsi-bilities are to assure that nuclear power, if used at all, is used with appropriate protection of public health and safety, of the common defense and security, and of the envirorrnent. The Atomic Energy Act specifically preserves the ratemaking jurisdiction of other federal and state agencies. Section 271, 42 U.S.C. 2018. For the Commission to inquire here into the impact of the permit's revocation on electric rates or on the economic desirability of the plant's construction would be beyond the NRC's authority. The NRC cannot force a utility to build a nuclear plant, whether or not the utility has a NRC construction permit. In the face of the Permittees' f unequivocal intention not to construct the facility, it is appropriate to revoke the construction permit. The Order to Show Cause explained: ."Section 103 of the Atomic Energy Act of 1954, as amended -(hereinafter the Act) authorizes the Comission to issue licenses to persons who will use utilization facilities for _ industrial or commercial purposes and whose proposed activities

i will serve a useful purpose proportionate to the quantities of special nuclear material or source material to be utilized. [42 U.S. 2133(a) & (b)] The pemit issued to Northern States Power Company, it, al., pursuant to Section 103, was for the t purpose of constructing a utilization facility. Section 186 of the Act provides that "any license may be revoked * *

• because of conditions * *
• which would warrant the Commission to refuse to grant a license on an original application * * *".

Construction of the Tyrone facility has now been cancelled. The holders of the pemit issued to authorize its construction no longer propose to conduct activities which will serve a useful commercial purpose within the meaning of the Atomic Energy Act." 45 Fed. Reg, at 42094. Revocation of the pemit in this case is also consistent with the Appeal Board's recent decision in Rochester Gar & Electric Corp. (Sterling Power Project, Nuclear Unit No.1), ALAB-596, June '17,1980.E In the Sterling case, the applicants asked the Apped board to terminate further proceedings on review of the initial decision that authorized initial issuance of the construction pemit. In addition to teminating the pro-ceedings, and thereby removing the authority underlying the issuance of the construction permit, the Appeal Board instructed the Director of NRR to revoke the pemit. The Appeal Board commented that the applicants " scarcely have any further need for the pemit in light of their abandonment of the Sterling project." Decision at 4 In view of the Tyrone Pemittees' abandon-ment of the Tyrone project, the construction pemit serves no useful purpose and should be revoked. The Commission has extended the period within which it may review this - 10/ decition until August 1, 1980. gw M ?

, Finally, it should be noted that revocation of the construction permit does not prejudice the right of the Pemittees to re-apply for an NRC con-l struction permit in the future. If circumstances change such that the Permittees desire to build a nuclear facility, they may re-apply for a pe rmit.E 1 IV. CONCLUSION For the foregoing reasons, the Commission should deny the Dakota l Commissions' request for a hearing and their motion to defer revocation of the Tyrone construction pe mi t. If the Commission denies the request and the motion, the Director of NRR will revoke the Tyrone construction permit unless otherwise directed by the Commission. Respectfully submitted, Stephen G. Burns Counsel for NRC Staff TwD.k Karen D. Cyr / 1 Counsel for NRC Staff Dated at Bethesda, Maryland this 29th day of July, 1980.

Enclosures:

listed separately ) on next page l ( See Rocky Mountain Power Co. v. FPC, 409 F.2d.1122,1129 (D.C. Cir. 11/ T9T9); Cf. Houston Lightino & Power Co. (South Texas Project, Units 1 & 2), CLI-77-13, 5 NRC 1303,1321-22 (1977).

4 1 T'??,' p p DOCKnto UNITED STATES OF AMERICA Pl-WWO 3C BEFORE THE C A(JG j g 19805 NUCLEAR REGULATORY COMMISSION P ff s "I Northern States Power Co., et al. ) Docket No. h' e (Tyrone Energy Park, Unit T)~~ ) STN-50-484 y g 3 PETITIONER' S REPLY TO NRC STAFF' S ANSWER TO MOTION TO DEFER COMMISSION ACTION, PETITION TO INTERVENE, AND REQUEST FOR A HEARING On June 16, 1980 the Director of the Of fice. of Nuclear Reactor Regulation issued an Order to Show Cause why Construction Permit No. CPPR-157 should not be revoked. 45 Fed. Reg. 42093 (June 23, 1980). The Order was issued upon application of Richard Ihrig for the Badger Safe Energy Alliance, citing the manifest intention of Northern States Power Company ("NSP"), the permittee, to abandon the project. The Order provided that any interested party could, within 25 days, request a hearing on the proposed Commission action. On July 11, 1980, the North Dakota Public Service Commission and the South Dakota Public Utilities Commission (" Dakota Commissions") petitioned to intervene, moved the deferral of the proposed revocation, and requested a hearing, if such was necessary, to the grant of petitioners' motion. The Commission's Staff subsequently filed an Answer to the petition. The Answer maintained that the Dakota Commissions had no standing to petition the Commission for the relief which it. sought, and further argued that such relief was inappropriate for a variety of reasons. Pursuant to Section 2.730(c) of the Commission's regulations, the

petitioner hereby seeks authorization to file this further response to the Commission Staff's contentions. For the reasons set out below, the Dakota Commissions have requisite standing t, request a deferral and/or a hearing, and the deferral is warranted under the circumstances, and in the public interest. I. THE DAKOTA COMMISSIONS HAVE STANDING 'IO ASSERT THE INEGSTS OF CONSUMERS WITHIN THEIR RESPECTIVE JUR.COICTIONS The NRC Staf f challenges petitioner's standing to oppose the revocation of the construction permit issued to NSP. Their reasoning is clearly misguided. Section 189a of the Atomic Energy Act, 42 U.S.C. 2239(a), authorized a hearing upon the request of anyone "whose interest may be af f ected" by a proceeding. In deter-mining whether a petitioner has standing, the Commission and the Appeals Board have applied the test which is used in Federal courts, i.e., whether "the outcome of the proceeding threatens one (or more) of { petitioner's] interests arguably Houston protected by the statute being administered." Lighting and Power Company (South Texas Project, Unit 1 and 2), ALAB-549, 9 NRC 644, 646 (May 18, 1979); Portland General j Electric Company (Pebble Springs Nuclear Plant, Units 1 and 1 2), CLI-76-27, 4 NRC 610, 613-14 (1976). To establish such interest, petitioner must show (1) injury in fact, and (2) j that the injury is arguably within the zone of interest pro-- tected by the relevant statute. Pebble Springs, supra, 4 NRC at 613. I

c , ) The Dakota Commissions are public authorities charged with the regulation of utilities serving consumers within their respective jurisdictions, and NSP-M is such a utility. The revocation of the NSP construction permit may cause considerable hardship to the interest of North Dakota and South Dakota customers of NSP. Specifically, that interest is the adequate supply of power at a reasonable cost. The Dukota Commissions have a right and a respon-i sibility to protect that interest. At present NSP seeks to pass through the costs of cancelling the Tyrone Unit to its customers in petitioners' respective jurisdictions. Such costs, if passed through, would be borne by those customers without any attendant bene-fit in the form of additional plant in service or more reliable power supplies. Among the options that might result in the lowest alternative power supply is the refiling of NSP's application for a certificate of need for a nuclear unit with the Wisconsin Commission. The foreclosure of that option thus threatens petitioners' interest in insuring that the citizens of North Dakota and South Dakota have an ade-quate supply of power at a reasonable cost. i secondly, the interest articulated above is within the zone of interests protected by the Atomic Energy Act and the National Environmental Policy Act. In the Commission's regulations governing the standards for licenses and construction permits, Section 50.43(a) requires the

~ -4 Commission, in a proceeding affecting Section 103 licenses, to "give notice in writing of each application to such regu-latory agency as may have jurisdiction over the rates and services incident to the proposed activity." Petitioners contend that the requirement of notice assumes a sufficient interest to confer standing. Moreover, the regulation establishes unequivocally that the interests represented by such regulatory agencies are within the purview of the Act. The NRC Staff's response argues that the economic interests advanced by the Dakota Commissions are outside the zone of interests protected by the Atomic Energy Act. (pp.4-7) The cases cited by the Staff will not support its proposition that a regulatory agency's assertion of the economic is charged with representing are outside interests that it the zone of interests of the Atomic Energy Act. In the Allens Creek decision cited, the would-be intervenor claimed standing, contending that his " main in these proceedings is manifested by his plans for interest future investment of nearly S120,000 in Houston real estate The Appeal Board af firmed the denial of the peti-by 1983." tion to intervene, holding that "it is now settled that an interest which is purely economic in character does not confer standing to intervene under the Atomic Energy Act." Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 242 citing Tennessee Valley Authority (Watts Bar Nuclear (1980); Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1420-21 (1977).

4 0 l Reference to Tennessee Valley Authority, supra, uncovers a much more limited doctrine than the language of There the Houston Lighting and Power would suggest. in the petitioner, appearing pro se, asserted an interest proceeding by virtue of her status as a customer of an electric utility which purchased power from TVA. The Appeals Board af firmed the denial of the petition to intervene, " status as a ratepayer of an applicant for a holding that nuclear license does not bring one within the zone of Id. at 1420, interests protected by the Atomic Energy Act." (Pebble Springs citing Portland General Electric Company. Nuclear Plant, Units 1 and 2), CLI-76-27, NRC I-71/12, 610, 614 (1976). In Portland General Electric Company, supra, the Appeals Board also denied intervention to an association basing standing on the status of its members as ratepayers of In a footnote the Commission noted the license applicant. its finding was prompted "particularly in light of the that preservation of rate-making jurisdiction ot other Federal, to Section 271 of the Act." State and local agencies pursuant. _I_d. at 614, n. 5. individual rate-The clear implication here is that interest in the payers have not been found to have sufficient that interest has been entrusted by law proceedings because Perforce, the relevant to the relevant ratemaking agency. that interest. agency must have standing to represent 1 \\

3 e A distinction-must be drawn between the economic interest of an individual ratepayer, whose participation may be contrary to the interests of the larger ' community, and the duly constituted regulatory authority. charged with assuring the entire community within its jurisdiction an adequate That the Commission supply of power at a reasonable cost. has made this distinction seems apparent from the requirement of notice to the ratemaking authority referred to above. The NRC Staf f also charges that the Dakota Commissions' interest in protecting the interstate market for-i electric power and in assuring an economic and reliable power insufficient to confer supply is a " generalized interest. standing," NRC Staff's Answer, at p. 6, citing Nuclear Engineering Co._, (Shef field Low Level Radioactive Waste Disposal Site) ALAB-473, 7 NRC 737, 743 (1978). In Nuclear Engineering Company, supra, the Appeals Board barred intervention by the Mid-America Legal Foundation ("Mid-America") and the Chicago Section, American Nuclear Society (" Chicago Section"), in a proceeding to consider an for renewal and application by the Nuclear Engineering Co. amendment of its license to operate a radioactive waste ) burial site. Petitioner, Mid-America, had alleged its i in the benefits to the general public utilizing " interest goods and services provided by users of the [ waste] facility." The Chicago Section alleged merely that it was an ) 1

, organization of " professionals interested in the optimum development of nuclear science and technology for the benefit of mankind." Id. at 740-41. The Appeals Board denied inter-vention, citing the Supreme Court's holding that "a mere ' interest in a problem,' no matter how long-standing - the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization ' adversely affected' or ' aggrieved' within the meaning of the APA." Sierra Club v. Morton, 405 U.S.C. 727, 739-40 (1972). The North Dakota Public Service Commission and the South Dakota Public Utilities Commission are a far cry from the two self-proclaimed public interest groups discussed ~ above. The comparison by Staff suggests unbounded audacity. The Dakota Commissions do not merely purport to represent the public interest. They represent that interest by law and in fact. Of course, they represent a " generalized interest" that is their charge. The harm sought to be avoided in Sierra Club was found to be not the proper concern for the public interest, but rather the assumption of the mantle of public representation by unauthorized individuals and organizations, who in fact represent their own special interests, and who cannot demonstrate that those interests I are in fact threatened. In contrast, the The Dakota Commissions are the lawful representatives of the citizens of their respective jurisdictions. The interests they seek to protest are concrete and specific to those jurisdictions.

. Finally, participation by the Dakota Commissions is specifically authorized by the Commissions' Rules of Practice. Section 2.715(c) requires, in all adjudications initiated by an order to show cause, that "[t]he presiding. of ficer will af ford representatives of an interested State, county, municipality, and/or agencies thereof, a reasonable opportunity to participate and to introduce evidence, interrogate witnesses, and advise the Commission without requiring the representative to take a position with respect to the issue." 10 CFR 2.715(c). as it is used in that The term " interested state" rule has been broadly interpreted. The California Energy Commission was permitted to participate in a proceeding on an application by Exxon Nuclear Co. for a permit to construct a facility for the storage and reprocessing of spent nuclear The only interest alleged was based on a California fuel. statute prohibiting the licensing of nuclear power plants in state until such f acility was available within the that United States. Exxon Nuclear Company, Inc. (Nuclear Fuel Recovery and Recycling Center), ALAB-447, 6 NRC 873 (1977); see, also, Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-74-32, 8 AEC 217, 217-18 (participation of Maryland; reactors in Pennsylvania); (1974) Northern Indiana Public Service Co._ (Bailly Generating Station, Nuclear I) ALAB-241, 8 AEC 841, 843 (1974) Public (participation of Illinois; reactor in Indiana);

4 Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-25, 6 NRC 535 (1977) (participation of Massachusetts; reactor in New Hampshire). The Dakota Commissions certainly qualify for inter-vention as of right under the provision of 52.715(c), of this Commission's regulations. Furthermore, the provision of-the section, permitting participation without taking a stand on the issue, together with the absolute right conferred, would appear to obviate the requirement that an interested state establish the traditional indices of standing. THE COMMISSION CAN AND SHOULD DEFER REVOCATION OF THE II. CONSTRUCTION PERMIT The NRC Staff's conclusion that the Commission should not defer revocation of the NSP construction permit seems to be founded on three distinct premises: (1) that the to revocation is a fait accomplis, no longer subject challenge; (2) that the Dakota Commissions' representation of the possibility that NSP may refile its application with the Wisconsin Public Service Commission is without "f actual basis"; and (3) that consideration of the economic impact and effect on power supply, attendant upon revocation, is beyond the authority of the NRC. These premises must be charac-terized as ranging from absurd to ill-considered. The NRC Staf f's Response states that "[aln order issued with the licensee's consent has the same force and as an order issued after a hearing by the presiding effect

4 -10 ' officer or the Commission." Response at p. 3, n. 3. The Response further notes that "Mr. Ihrig was informed. that the Alliance petition to revoke the construction permit had been granted by virtue of the Director's issuance of the Order to Show Cause." Response, p. 3, n. 4. This position evinces incredible unfamiliarity with the Commission's Regulations and a profound disregard for Due Process. The Commission's Rules of General Applicability provide that, "in all adjudications initiated by an order to show cause, any person whose interest may be af fected by a proceeding and who desires to participate as a party shall file a written petition for leave to intervene." 10 CFR 2.700, 2.714(a)(1). The Order to Show Cause issued by the Director of the Of fice of Nuclear Reactor Regulation specifically provi-des that "[t]he Licensee or any person whose interest may be affected by this order may request a hearing within twenty-five (25) days of the date of the Order." 45 Fed. Reg. 42093 (June 23, 1980). While section 2.202 does not, in terms, authorize the Director to afford interested parties an opportunity to request a hearing, it also does not, in terms, authorize the issuance of an Order to Show Cause at the behest of the licensee. 10 CFR 52.202. The revocation procedure set out in 52.202 is clearly premised on a violation by the licensee

-11' of the terms and conditions of his license or other The section requires that the Order Commission regulation. "[alllege the violations with which the licensee is charged." The In'this case, NSP is charged with no violation. Director's decision to af ford interested parties the oppor-a hearing appropriately recognizes com-tunity to request peting interests which are not adequately represented by NSP or the Commission. which The NRC Staff response cites 52.202(e), the licensees consent to the entry of an order provides'that constitutes a waiver of the licensee's rights to a hearing. 10 CFR 2.202(e). This is true. It is also irrelevant. While the licensee may certainly waive its own rights, it should go without saying that NSP's consent cannot consti-tute a waiver by an adversely interested party. in The Commission Staf f also cites the decision Public Service Company of Indiana (Marble Hill. Nuclear CLI-80-10, 11 NRC 438, Generating Station, Units 1 and 2), in support of its contention that the order 441 (1980), issued with the licensee's consent cannot be challenged. The case simply does not stand for the proposition In Marble Hill, the Director of the for which it is cited. issued an " Order Office of Inspection and Enforcement to the Public Confirming the Suspension of Construction" Service Co. of Indiana (PSI), and.further provided, as in PSI anyone affected could request a hearing. this case, that

-12. consented to the terms of the Order, as did the state of Kentucky, participating pursuant to S2.715(c). Petitioners, two local chapters of the Audubon Society, requested a hearing, alleging an interest adversely af fected in the implicit possibility that construction might later resume. The petition was denied on two grounds: (1) that the " petitioners [had) f ailed to show how their interests [would] be adversely af f ected by the Director's Order" to halt construction, and (2) that the scope of any hearing on the Order must in any event be limited to the appropriateness of the suspension (the issue framed by the and would not comprehend the availability of the Order), further remedy of revocation. is unapplicable to the takota Commissions' The case petition. The Dakota Commissions have standing, either as intervenors or pursuant to 52.715(c). Unlike the Commonwealth of Kentucky in Marble Bill, they do not acquiesce in the terms of the - Order. Additionally, peti-the revocation of the construction permit, tioners contest precisely the issue framed in the Order to Show Cause. They unlike the would-be intervenors in Marble Hill, seek do not, to expand the scope of.the issues framed in the Order. The Commission Staf f misstates the f acts in its assertion that the Alliance was informed that its petition "had been granted." Response, p. 3, n. 4. The June 16, 1980 letter which is referred to clearly apprises Mr. Ihrig only

9 that his petition has been noticed in the Federal Register. It also reiterates that " {t]he licensee or any person who has an interest affected by the Order may request a hearing. The letter is signed by Barold R. Denton, Director, Of fice of Nuclear Reactor Regulation. The Commission Staf f's view that the Notice in the Federal Register is a futile exercise is simply outrageous. it seems that a third party can, by merely In Staff's view, the automatic revocat. ion of a filing a request, cause construction permit. Requests for hearingt are of no avail according to the Staff, revocation has been granted.

because, Petitioners find no support in the Commission's regulations for such a conclusion.

Moreover, it is so contrary to the notice requirements of the APA and fair play that it must be rejected. The Commission Staff's second contention is that the Dakota Commissions' expressed desire to retain the option of re-filing the application for a certificate of need is without factual basis. The Commission Staff bases this con-tention on its own tenuous conclusion that "it seems unlikely that the Tyrone Project will ever be built." Response at p. 8. In issuing the construction permit, the Licensing Board presumably determined that there was a need for power; that balanced against environmental concerns the demonstrated need was appropriately met by construction of the facility in

question; and that relevant safety issues had been adequately addressed. There has been no showing of any facts which would tend to unsettle the Commission's conclusion in this regard. Nor has there been demonstrated any potential for harm or prejudice to the Licensee resulting from the requested deferral of this revocation. On the other hand, 1 the refiling of a new application would entail enormous amounts of money and time.1/ In other words, there is simply no good reason not to defer this revocation. Finally, the Commission Staf f argues that the con-sidera: ions of power supply and cost are beyond the purview of the Commission, and that it is limited in its role to the " protection of public health and safety, of the common defense and security, and of the environment." Response at

p. 9.

Petitioners suggest that this is an unduly cir-cumscribed characterization of the Commission's function. 1/ In this regard, the Staf f's suggestion, at p. 11 of its Response, that the Company could reapply in the future is well nigh incredible. To require NSP to initiate a brand new filing with its multiple approval processes would essentially doom any hope of reviving the Project so that the customers might gain some measure of benefits from the expenditures already made. The repititions and costly refiling expen-ditures would simply raise further the costs of potential nuclear power with no benefit to the customers.

. In passing the Atomic Energy Act of 1954 Congress enacted "a regulatory scheme which is virtually unique in the degree to which broad responsibility is reposed in the admi-nistering agency, free of close prescription in its character as to how it shall proceed in achieving the statutory objectives." Westinghouse Electric Corp. v. NRC, 598 F.2d 759, 771 (3rd Cir. 1979); Siegel v. AEC, 400 F.2d 778, 783 (1968). This legislation declares it to be the policy of the United States that "the development, use and control of ato-mic energy shall be directed so as to make the maximum contribution to the general welfare 42 U.S.C. 52011. The Atomic Energy Act further declares tha't its policy is to be effectuated by a range of programs, including "a program to encourage widespread participation in the deve-lopment and utilization of atomic energy for peaceful pur-poses to the maximum extent consistent with the common def ense and security and with the health and safety of the public." 42 U.S.C. S2013(d). The Commission is also authorized to issue commercial licenses, such as that granted NSP, " subject to such conditions as the Commission may by rule or regulation establish to effectuate the purposes and provisions of this chapter." 42 U.S.C. 52133. See also Westinghouse Electric Corp. v. NRC, supra, at 771. The Commission's role is clearly broader than that which the Staff response would suggest. It does not even

. the central criterion mention, in its catalogue of concerns, of "need for power." " A nuclear plant's principal benefit is of course the power it generates. Hence, absent some 'need for power,' justification for building a f acility is problematical." Public Service Company of New Hampshire ALAB-422, 6 NRC 33, 90 (Seabrook Station, Units 1 and 2), (1977), citing Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 405 (1976). Indeed, the "need for power" is the " benefit" side of the cost-benefit analysis in which the NPO is required to engage when it licenses a Without consideration thereof, facility. Seabrook, supra. no nuclear plant would be licensed. Tne Commission clearly a responsibility to consider the effect of its decisions has upon regional energy planning. The Commission also has properly considered the economic consequences of its decisions as part of its general The Commission has, for regard for the public interest. example, given weight to the economic consequences to con-sumers of a delay associated with the transfer of a project Northern Indiana Public to a proposed alternate cite. Service Company _(3ailly Generating Station, Nuclear 1), LBP-74-19, 7 AEC 557, 624 (1974). This solicitude was in Porter County expressly approved by the Seventh Circuit 533 F.2d 1011, 1017 Chapter of Izaack Walton League v. AEC, (7th Cir., 1976).

s . THE DAKOTA COMMISSIONS

• REQUEST IS CLARIFIED TO REQUEST III. A BEARING IF THERE IS ANY QUESTION AS TO THE MERITS OF THE REQUESTED DEFERRAL The request made by Dakota Commissions is modest, that is, a deferral for 12 months of the revocation of the construction permit.

No party -- except possibly the con-sumers of NSP-M and NSP-W -- is adversely af fected by the However, requiring the Company to reapply could deferral. well cause unnecessary delay and enormous costs that could be be made. avoided simply by deferring action that need not The Commission's Regulations permit a Response by Pursuant to that Petitioners when permitted,- S2.730(c). i regulation and in light of the purported " ambiguity" raised by Staf f's Response as to the Dakota Commissions' request, that they be per-Dakota Commissions respectfully request mitted to lodge this Answer with the Commission and with the Director of NRR. Respectfully-submitted, fe _{ f)&f~ krance,sE. Francis h sr John.Kichael Adragna Attorneys for the South Dakota Public Utilities Commission and the North Dakota Public Service Commission August 18, 1980 Law offices of: Spiegel & McDiarmid 2600 Virginia Avenue, N.W. Washington, D.C. 20037 202-333-4500

4 4 UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION Nor the rn Sta te s Powe r Co., ~e t al. ) Docket No. (Tyrone Energy Park, Unit I)~~ ) STN-50-484 CERTIFICATE OF SERVICE I hereby certify that I have caused copies of the foregoing MOTION TO DEFER COKMISSION ACTION, PETITION TO INTERVENE OUT OF TIME, AND REQUEST FOR HEARING to be served on the following parties by deposit in the United States mail, first class, postage paid, this 18th day of August, 1980. Harold R. Denton, Director Executive Legal Director Of fice of Nuclear Reactor Of fice of Nuclear Reactor Regulation Reg ula tion U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washing ton, D.C. 20555 Washington, D.C. 20555 Ivan W. Smith, Esq. Mr. Pe ter Pe shcek Chairman-Atomic Safety and Public Intervenor Licensing Board Department of Justice U.S. Nuclear Regulatory 123 West Washington Avenue Madison, Wisconsin 53702 Commission Wa shing ton, D.C. 20555 Honorable Sandra S. Gardebring Atomic Safety and Licensing Special Assistant Attorney General Board U.S. Nuclear Regulatory 1935 West County Road B2 Roseville, Minnesota 55113 Commission Washing ton, D.C. 20555 Mrs. Harold'C. Bauer Dr. George C. Anderson Citizens for Tbmorrow, Inc. Department of OceAnagraphy Route 1, Box 191 University of Washington Rock Falls, Wisconsin 54764 Seattle, Washing ton 98195 Michael J. Cain, Esq. Bureau of Legel Services Karen D. Cyr, Esq. Stephen G. Burns, Esq. Department of Natural Resources Counsel for NRC Staff Box 7921 Office of the Executive Madison, Wisconsin 53707 Legal Director U.S. Nuclear Regulatory Ms. Helen M. Kees Commission Route 3 Washing ton, D.C. 20555 Durand, Wisconsin 54736 Gerald Charnoff, Esq. CAUSE Jay E. Silberg, Esq. c/o Mr. Tom Richards Thomas A. Baxter, Esq. Route 1 Shaw, Pittman, Potts & Boyceville, Wisconsin 54725 Trowbridge 1800 M Street, N.W. Wa shing ton, D.C. 20036

i . Mr. Edward Gold Steven M. Schur, Esq. Wisconsin Public Service 814 Fourth Street Menomonie, Wisconsin 54751 Commission Bill Farms State Office Bldg. Mr. Tom Galazen 4802 Sheboygan Avenue Madison, Wisconsin 53702 R.R.

1. 2, Box.64 Turtle Lake, Wisconsin 54889 Richard Ihrig, Esq.

874 Summit Avenue Ray H. Walton, Esq. St. Paul, Minnesota 55105 Commerce Counsel North Dakota Public Service Commission Mr. Stanley Cider Capitol Building c/o Durand Postmaster Bismarck, North Dakota 58505 Tyrone, Wisconsin 54736 Richard S. Salzman, Esq. Walter Washington, Esq. Chairman-Atomic Safety and Assistant Attorney General Licensing Appeal Board South Dakota Public Utilities Commission U.S. Nuclear Regulatory Capitol Building Commission Washing ton, D.C. 20555 Pierre, South Dakota 57501 Michael C. Farrar, Esq. Rodney Wilson, Esq. Special Assistant Attorney General Atomic Safety and Licensing Minnesota Public Service Commission Appeal Board 790 American Center Building U.S. Nuclear Regulatory 150 East Kellogg Boulevard Commission W ashing ton, D.C. 20555 St. Paul, Minnesota 55101 George Bruder, Esq. Dr. W. Reed Johnson Atomic Safety and Licensing Bruder & Gentile 1201 Connecticut Avenue, N.W. Appeal Board U.S. Nuclear Regulatory Washington, D.C. 20036 Commission Washington, D.C. 20555 Alan Wolf, Esq. Federal Energy Regulatory Commission Northern States Power Company 825 North Capitol Street, N.E. Attn: Mr. Arthur Dienhart V. Pres. - Engineering Washington, D.C. 20426 414 Nicollet Mall Minneapolis, MN 55401 Kenneth F. Plumb secretary Federal Energy Regulatory Samuel J. Chilk, Secretary Commission U.S. Nuclear Regulatory 825 North Capitol Street, N.E. Commission Washington, D.C. 20555 Washington, D.C. 20426 ~A tohn Xichael Adrig'na 4' August 18, 1980

1 W ~ g UNITED STATES 0F AMERICA NUCLEAR REGULATORY COMMISSION 0/ 4'fy 99 a$ b 4~ Ag 7 gtQst* In the Matter of es ET AL. Docket N %D-NORTHERN STATES POWER CO., T--- (Tyrone Energy Park, Unit 1 y ORDER TO SHOW CAUSE I Northern States Power Company, el a_1,. is the holder of Construction Pemit No. CPPR-157 which authorizes the construction of nuclear power reactor Unit 1 at the Tyrone Energy Park in Dunn County, Wisconsin. Construction Permit No. CPPR-157 was issued on December 27, 1977, and is due to expire on October 1, 1985. II On July 24, 1979, Northern States Power Co. e_t,al. announced that the co-owners of the proposed facility had voted to cancel the project. By letter dated July 26, 1979, Arthur V. Lienhart, Vice-President'of Northern States Power Company informed the Nuclear Regulatory Comission (hereinafter "Comission") of the decision to cancel the project. Mr. Dienhart stated that the co-owners concluded that the " consequences flowing from the denial of the project on March 6,1979, by the Wisconsin Public Service Comission would prevent the project from being placed in service on a schedule required by projected needs for power". He requested q the Office of Nuclear Reactor Regulation to teminate further action in this docket. By letter dated July 25, 1979, Thomas A. Baxter, Esq., Counsel for the Permittees, requested the Atomic Safety and Licensing Appeal Board to terminate the further proceedings which it had ordered in this docket.U The Comission has no infomation i to indicate that the Licensees have any intent to renew construction at this

• / By Order dated August 30, 1979, the Appeal Board terminated all proceedings involving the application to license construction of the facility and dismissed the case.

2 } facility in the future. By petition dated August 15, 1979, the Badger Safe Energy Alliance requested the Director of Nuclear Reactor Regulation to institute a proceeding pursuant to 10 CFR 12.202 to revoke the above-described t.onstruction pemit because of the Licensees' announced decision to cancel the project. Section 103 of the Atomic Energy Act of 1954, as amended (hereinafter the Act) authorizes the Comission to issue licenses to persons who will use utiliza-tion facilities for industrial or comerical purposes and whose proposed activities will serve a useful purpose proportionate to the quantities of special nuclear material or source material to be utilized. U The pemit issued to Northern States Power Company, el al., pursuant to Section 103, was for the purpose of constructing a utilization facility. Section 186 of the Act provides that "any license may be revoked...because of conditions...which would warrant the Commission to refuse to grant a license on an original application...". Construction of the Tyrone facility has now been cancelled. The holders of the pemit issued to authorize its construction no longer propose to conduct activities which will serve a useful comercial purpose within the meaning of the Atomic Energy Act. III For the reasons set forth in Secticn II above, and pursuant to the Atomic Energy Act of 1954, as amended, and the Comission's regulations in 10 CFR Parts 2 and 50, IT IS HEREBY ORDERED THAT: Northern States Power Company, et al. show cause, in the mannerhereinafter provided, why construction pemit No. CPPR-157 should not be revoked. 3/ 42 U.S.C. 62133(a) & (b).

.3 - IV TheLicenseemay,withintwenty-five(25)daysofthedateofthisOrder, file a written answer to this Order under oath or affimation. The Licensee may ' consent to the entry of an Order in substantialiy the fom proposed in the Order to Show Cause. If the Licensee fails to file an answer within the time specified, the Director of Nuclear Reactor Regulation will, without further notice, issue an Order to revoke the Construction Pemit No. CPPR-157. The Licensee or any person whose interest may be affected by this Order may request a hearing within twenty-five (25) days of the date of the Order, setting forth with particularity the interest of the person in the proceeding and how that interest may be affected by the results of the proceeding. Any request for a hearing shall be addressed to the Director, Office of Nuclear Reactor Regulation, U. S. Nuclear Regulatory Comission, Washington, D. C. 20555, with a copy to the Executive Legal Director at the above address. If a hearing is requested by a person who has an interest affected by this Order, the Comission will issue an order designating the time and place of hearing. In the event a hearing is requested, the issue to be considered at such hearing shall be: Whether, on the basis of the Licensee's announced decision to cancel construction of the Tyrone Energy Park, Unit 1 facility, this Order should be sustained. FOR THE NUCLEAR REGULATORY COMMISSION G Harold R. Denton, Director Office of Nuclear Reactor Regulation Datedatgthesda, Maryland this'(JayofJune,1980.

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o souca av JJmN 88eGC6 ., a...,i s..... Mr. Harold R. Denton, Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555 In the Matter of Northern States Power Company, et al. (Tyrone Energy Park, Unit 1) Docket No. STN 50-484

Dear kr. Denton:

Mr. Dienhart of No nhern States Power Company has asked me to respond to your *.etter of June 16, 1980, enclosing an Order to Show cause issue! in this docket. The enclosed answer filed on behalf of the holders of Construction Permit No. CPPR-157 interposes no objection to the entry of an order in substantially the form proposed in the Order to Show Cause. Sincerely, m k. $r ~ Thomas A. Baxter i Counsel for Permittees [h:! Office of the Executive Legal Director i cc: . Docketing and Service Section 1 Richard Ihrig, Esquire Mr. Arthur V. Dienhart t l -8voTIPf09tO

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j July 1, 1930 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE DIRECTOR, OFFICE OF NUCLEAR REACTOR REGULATION In the Matter of ) ) NORTHERN STATES POWER COMPANY, -) Docket No. STN $0-484 ET AL. ) ) (Tyrone Energy Park, Unit 1) ) PERMITTEES' ANSWER TO ORDER TO SHOW CAUSE On June 16, 1980, the Director, Office of Nuclear Reactor Regulation, issued on behalf of'the Commission an Order to Show Cause why Construction Permit No. CPPR-157 should nc.; be revoked. Permittees Northern States Power Company, et al., have no objection to the entry of an order.in substantially the form proposed in the Order to Show Cause. ,1 Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE Thomas A..Baxter. Counsel.for Permittees 1800 M Street, N.W. Washington, D.C. 20036 i (202).331-4100 Dated: July 1, 1980 1 8007070' 315 ,}}