ML20079D215

Answer of Ohio Edison Co to Petition of Alabama Electric Cooperative,Inc for Leave to Intervene.* Alabama Electric Cooperative,Inc Petition for Leave to Interveve Should Be Denied.W/Certificate of Svc

ML20079D215
Person / Time
Site:	Davis Besse, Perry
Issue date:	06/14/1991
From:	Charnoff G OHIO EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
References
CON-#291-11875 A, NUDOCS 9106280053
Download: ML20079D215 (11)

Text

h DOCKET NUMBEfl p5 PacD. & UTIL FAC.OJebv UNITED STATES OF AMERICA DOL KE li.D NUCLEAR REGULATORY COMMISSION P EC BEFORE THE NUCLEAR REGULATORY COMMISSION 91 J 14 P 3 :22 In the Matter of )

)

OHIO EDISON COMPANY ) Docket No. 50-440A

)

(Perry Nuclear Power Plant, )

Unit 1) )

ANSWER OF OHIO EDISON COMPANY TO PETITION OF ALABAMA ELECTRIC COOPERATIVE, INC.,

FOR LEAVE TO INTERVENE On May 1, 1991, the Nuclear Regulatory Commission ("NRC" or

" Commission") published a Notice of Denial of Applications for Amendments to Facility Operating Licenses and Opportunity for Hearing. 56 Fed. Req. 20057 (May 1, 1991). The Notice stated that the agency had denied an application by the Ohio Edison Com-s pany ("OE") to suspend the antitrust conditions appended to the operating license of the Perry nuclear power plant, as the condi-tions apply to Ohio Edison, and an application by the Cleveland Electric Illominating Company ("CEI") and the Toledo Edison Com-pany ("TE") to suspend the antitrust conditions appended to the

operating license of the Perry and Davis-Besse nuclear power plants, as the conditions apply to CEI and TE.1 The Notice also stated that by May 31, 1991, the Licensees could demand a hearing with respect to the denial, and that by the same date "(a]ny I' 4 1/ OE , CEI, and TE collectively are referred to herein as the

" Licensees."

9106280053 910614 g

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4 person whose interest may be affected by this proceeding may file

a written petition for leave:to intervene."

Id.

On May 30, 1991, Alabama Electric Cooperative, Inc. ("AEC")

filed a petition for leave to intervene in any hearing demanded by_the Li ensees'. On May 31, 1993, applicant OE and joint appli-cants CEI and TE filed timely requests for a hearing.2/ This Answer is Ohio Edison's response to AEC's petition for leave to intervene. See 10 C.F.R. S 2.714(c) (1991).

The NRC's Rules of Practice provide, in pertinent part, that:

(c) Any party to a proceeding may file an

-answer to a petition for leave to intervene

. . . with particular attention to the fac-tors set forth in paragraph (d)(1) of this section. . . . .

(d) The Commission, the presiding officer, or the Atomic Safety and Licensing Board des-ignated to rule on petitions to intervene

. . . shall, in ruling on --

2/- See Ohio Edison Company's Request for a Hearing with Respect to the Denial of the. Application to Amend the Perry Operat-ing License to Suspend the Antitrust Conditions Insofar as

.They Apply to Ohio Edison Company (May 31, 1991) (hereinaf-ter "OE Request.for-Hearing");-Cleveland Electric Illuminat-ing Company's and Toledo Edison Company's Request for a Hearing with Respect to the Denial of the' Application to Amend the Perry and Davis-Besse Operating Licenses to Sus-pend the Antitrust Conditions Insofar as They Apply to Cleveland-Electric Illuminating Company and Toledo Edison Company (May 31, 1991) (hereinafter "CEI/TE Request for Hearing").

T i

(1) A petition for leave to intervene

. . . , consider the following factors, among other things:

(!) The nature of the petitioner's right under the Act to be made a party to the proceeding.

(ii) The nature and extent of the peti-tioner's property, financial, or other inter-est in the proceeding.

(iii) The possible effect of any order that may be entered in the proceeding on the petitioner's interest.

10 C.F.R. SS 2.714(c) and (d). As shown below, each of these factors militates against allowing AEC to intervene as a party in the instant proceeding.

The NRC applies judicial concepts of standing in determining whether a petitioner has made the requisite showing of interest required by Section 189a of the Atomic Energy Act and 10 C.F.R. 5 2.714. Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 N.R.C. 325, 329 (1989) (cit-ina Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 N.R.C. 610, 614 (1976)); Metropoli-tan Edison Co. (Three Mile Island Nuclear Station, Unit 1),

CLI-83-25, 18 N.R.C. 327, 332 (1983). These judicial standards require that the challenged action could cause (1) " injury-in-fact" to the potential intervenor, and (2) that such injury is arguably within the zone of interests protected by the Atomic Energy Act. See Warth v. Seldin, 422 U.S. 490, 500-01 (1975);

e Sierra Club v. Morton, 405 U.S. 727, 734-37 (1972); Three Mile Island, 18 N.R.C. at 332.

3 It is clear from its request that AEC will not suffer an

" injury-in-fact" as a result of the suspension of the antitrust conditions at issue in this proceeding. AEC has no relationshi; whatsoever with any of the Licensees or their facilities: it does not assert that it is a competitor of Ohio Edison, Cleveland Electric Illuminating, or Toledo Edison, or that it is a benefi-ciary of the antitrust conditions on the Perry and Davis-Besse plants in Ohio. Rather, according to AEC, it is a beneficiary of the antitrust conditions imposed on the Alabama Power Company's Joseph M. Farley plant, located in southern Alabama. AEC never-theless asserts that it has a cognizable interest in t. pro-ceeding because an NRC decision suspending the Perry and Davis-Besse antitrust conditions "might be used as arguable precedent" in some future proceeding "to attempt to alter or vitiate the Alabama Power conditions." AEC Petition at 2. AEC argues that its " direct and substantial interest in protecting itself from any such contingency" justifies its intervention in the present proceeding. Id.

AEC is in error. Potential future litigants in one proceed-ing have no right to intervene in another earlier proceeding in order to preclude the development of possibly harmful precedent.

There must be a connection between the threatened injury tc a l

I i: 1 l

petitioner and the particular proceeding in which the petitioner wishes to intervene. Allied-General Nuclear Services, (Barnwell Fuel Receiving and Storage Station), LBP-76-12, 3 N.R.C. 277, aff'd, ALAB-328, 3 N.R.C. 420 (1976). In short, the petitioner must have some " direct stake" in the outcome of the proceeding.

Allied-General Nuclear Services, (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 N.R.C. 420, 422 (1976) (citina l

Sierra Club v. Morton, 405 U.S. at 439-40). However, standing l cannot be based upon " abstract concerns" in the matter which are

! not accompanied by some real impact on the petitioner.

L L Transnuclear, Inc. (Ten Applications for Low-Enriched Uranium Exports to EURATOM Member Nations), CLI-77-24, 6 N.R.C. 525, 531 (1977). Rather, to justify intervention, an " injury-in-fact" l must be " distinct and palpable," Warth v. Seldin, 422 U.S. at l-l 501, not " abstract," " conjectural" or " hypothetical." Allen v.

Wricht,.468'U.S. 737, 751 (1983) (citing Los Anceles v. Lyons, 461 U.S. 95, 101-102 (1983); O'Shea v. Littleton, 414 U.S. 488, 494 (1974)).

i AEC's asserted interest is far too attenuated from the cur-

= rent proceeding to support standing: AEC will not be harmed by any decision in the present proceeding. Before AEC would even be.

in a position to be harmed, Alabama Power Company would have to initiate its own license amendment proceeding wholly independent I

from this action. This remote and hypothetical event is insuffi-E cient to support standing. "A plaintiff must allege that he has l

y l

l

been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action." Allied-General, 3 N.R.C. at 285 n. 11 (citing United States v. SCRAP, 412 U.S. 669 (1973)).

Furthermore, AEC's asserted interest represents a generic concern affecting all present beneficiaries of antitrust license conditions on nuclear power plants. Such a " generalized griev-ance shared by a large number of citizens in a substantially equal measure" vill not support standing. Warth v. Seldin, 422 U.S. at 499; Three Mile Island, 18 N.R.C. at 333 (citing Transnuclear, 6 N.R.C. at 531).

In short, AEC's petition for leave to intervene fails to satisfy any of the three criteria for intervention under 10 C.F.R. S 2.714(d). Since AEC will have no " injury-in-fact," it does not have standing under Section 189a of the Atomic Energy Act to support intervention as of right. See S 2.714(d)(i). And because AEC will have no " injury-in-fact," it has no direct stake or interest in the proceeding, see S 2.714(d)(ii), nor will any order that may be entered in the proceeding adversely affect AEC's interest, see S 2.714(d)(iii). In sum, AEC is not entitled to intervene on the basis of its conjectural assertions.

Nor do the circumstances weigh in favor of allowing AEC to be admitted as a party to the proceeding as a matter of

discretionary intervention. See Pebble Sprinas, 4 N.R.C. at 616; Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1),

CLI-81-25, 14 N.R.C. 616, 623 (1981). A determination whether to allow discretionary intervention is based upon an assessment of the circumstances of the particular case, and a consideration of-the-following factors:

(a)-Weighing in favor of allowing-inter-vention --

(1) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.

(2) The nature and extent of the petition-er's property, financial, or other .

interest in the proceeding.

(3) The possible effect of.any order wh t may be entered in the proceeding on +&

petitioner's interest.

(b) Weighing against allowing interven-tion --

(4) The availability of other means whereby petitioner's interest will be protected.

(5) The extent-to which the petitioner's interest will be represented by exist-ing parties.

(6) The extent to which petitioner's par-ticipation will inappropriately broaden or delay the proceedings.

Pebble Springs, 4 N.R.C. at 616. The Petitioner bears,the burden of persuading the-Licensing Board.that discretionary intervention is appropriate. Nuclear Enaineerina Co. (Sheffield Low Level

- _ _ - - - _ - _ _ ~ . . - - - _ _ - . _ - - . _

Radioactive Waste Disposal Site), ALAB-473, 7 N.R.C. 737, 745 (1978).

As to these factors, AEC's Po 4 tion presented no Pebble Sprinqq analysis. It can fairly be read, however, to contend that AEC is :oncerned with the possible ef f ect of an order in the instant proceeding on AEC's interest. (Factors (a)(2) and (a)(3) above.) These factors, which are the same as those in

-5 2.714(d)(li) and (iii), addressed above, militate against allowing AEC to intervene as a matter of discretion. The facts are that the present amendment requests are based upon the unfo-vorable econoinics of the Perry ar.d Davis-Besse nuclear units --

not those of Farley. AEC has nothing to contribute to a consid-eration of those economics, even if-there is, as Ohio Edison anticipates, no dispute among the other parties as to those eco-nomics. Moreover, AEC's position on the legal issues involved in this case will be represented by another Petitioner -- the city of Cleveland --Jwhich does have standing to intervene, and appar-ently also by the NRC and the DOJ staffs.2/ Patently,-AEC has no property, financial or other interest in the p oceeding. It is not a beneficiary of the Perry or Davis-Besse license conditions, it does not buy or distribute electric power in Ohio. Finally, AEC ha.s alternative means to protect its interests:

l/ 'OE has_ urged,-however, that the Licensing Board give no weight to the recommendations of trase parties because of the taint _ associated with them. See OE Request for Hearing, Issues (4) and (5).

e f

participation as a party in any future proceeding seeking to sus-

-pend the Parley antitrust license conditions, in the event the Parley license holders request any such amendment. Therefore, under a Pebble Springs analysis, there is no reason to grant-dis-cretionary intervention to AEC.

For all of these reasons, Ohio Edison respectfully submits that AEC has not shown that it should be permitted to intervene in this proceeding. Accordingly, its petition for leave to intervene should be denied.

Respectfullfsubmitted,

, I ( t ., (\ s (\u<

Gerald Charnoff Deborah B. Charnof? '

Margaret S. Spencer -

SHAW, PITTMAN, POTTS & TROWBRIDGE ,

2300 N Street, N.W.

Washington, D.C. 20037 (202) 663-8000 counsel for chio Edison Company dated: June 14, 1991 l

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a UNITED STATES OF AMERICA s...

NUCLEAR REGULATORY COMMISSION F s, '[ '

BEFORE THE NUCLEAR REGULATORY COMMISSION E M 14 P3 :22 In the Matter of ) .h ,, ,

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)

OHIO EDISON COMPANY ) Docket No. 50-440A

)

(Perry Nuclear Power Plant, )

. Unit 1) )

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this fourteenth day of June, 1991, a copy of the foregoing Answer of Ohio Edison Company to Petition of Alabama Electric Cooperative, Inc., for Leave to Intervene was hand-delivered to each of the following:

Secretary of the Commission U.S. Nuclear Regulatory Commission One White Flint North 32555 Rockville Pike Rockville, Maryland B. Paul Cotter, Jr.

Chief Administrative Judge Atomic Safety and Licensing Board Panel West Towers Building 4350 East West Highway Fourth Floor Bethesda, Maryland and that a copy of the foregoing Answer of Ohio Edison Company to Petition of Alabama Electric Cooperative, Inc., for Leave to Intervene was mailed first class, postage prepaid, to each of the following:

Joseph Rutberg, Esquire Sherwin E. Turk, Esquire Office of the General Counsel U.S. Nuclear Regulatory Commission '

Washington, D.C. 2055S Mark C. Schechter Chief Transportation, Energy ar-.

Agriculture Section Antitrust Division Department of Justice Judiciary Center Building 555 Fourth Street, N.W.

Washington, D.C. 20001 t James P. Murphy, Esquire Squire, Sanders & Dempsey 1201 Pennsylvania Avenue, N.W.

P.O. Box 407 Washington, D.C. 20044 D. Biard MacGuineas, Esquire Volpe, Boskey and Lyons 918 Sixteenth Street, N.W.

Washington, D.C.

20006 Craig S. Miller, Director of Law June W. Weiner, Chief Assistant Director of Law William M. Ondrey Gruber, Assistant Director of Law City Hall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44115 Reuben Goldberg, Esquire Channing. D.- Strother, Jr.

Goldberg, Fieldman & Letham, P.C.

1100 Fifteenth Street, N.W.

Washington, D.C. 20005

'f$'fftV@KhtllitGr Margarat S. Spencer SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037 (202) 663-8000 4

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