ML20079D216

Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Petition of Alabama Electric Cooperative,Inc for Leave to Intervene.* AEC Has Not Met Burden of Satisfying Regulatory & Common Law Requirements.W/Certificate of Svc

ML20079D216
Person / Time
Site:	Davis Besse, Perry
Issue date:	06/14/1991
From:	Jerome Murphy CLEVELAND ELECTRIC ILLUMINATING CO., SQUIRE, SANDERS & DEMPSEY, TOLEDO EDISON CO.
To:	NRC COMMISSION (OCM)
References
CON-#291-11874 A, TAC-66288, TAC-68313, TAC-68880, NUDOCS 9106280056
Download: ML20079D216 (11)

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. hi t U!11TED STATES OF AMERICA ,

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, NUCLEAR REGULATORY COMMISSIOIOI '

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'r DEFORE Ti!E NUCLEAR REGULATORY COMMISSION l; In the Matter of )

OHIO EDISON COMPANY )

(Perry Nuclear Power Plant, )

Unit 1) and Tile CLEVELAliD ELECTRIC )

ILLUMINATI!1G COMPA11Y, et al. ) Docket Nos. 50-440A (Perry thclear Power Plant, ) and 50-346A (TAC Nos.

Unit 1 and Davis-Desse Nuclear ) 66288, 68313 and Power St3 tion, Unit 1) ) 68000)

)

A11SWER OF TIIE CLEVELA!1D ELECTRIC ILLUMINATING COMPANY A!1D Tile TOLEDO 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 (" Notice"). See 56 Fed. Reg. 20057 (May 1, 1991).

Specifically, the Notice announced the Commission's denial of applications by the Ohio Edison Company ("OE"), The Cleveland Electric Illuminating Company ("CE1"), and The Toledo Edison Company ("TE") (collectively, the " Licensees" or " Applicants")

for suspension of the antitrust conditions appended to the operating licenses of the Perry and Davis-Besse nuclear power facilities. The Notica further stated that the Licensees could

, demand a hearing with respect to the Commission's denial by May 31, 1991, and that by that same date "[a)ny person whose 9106200056 910614 PDR ADOCK 05000346 O gh o PDR gS

interest may be affected by this proceeding may file a written petition for leave to intervene." i s

l On May 30, 1991, Alabama Electric Cooperative, Inc. i

, ("AEC"), filed its petition for leave to intervene in any hearing demanded by the Licensres. See Petition of Alabama Electric Cooperative, Inc., for Leave to Intervene ("AEC's Petition") (May 30, 1991). The following day, Licensees filed their timely re-quests for a hearing regarding the Commission's denial.1/ In this Answer, CEI and TE request that the Commission deny AEC's Petition on the basis of the following arguments. See 10 C.F.R. l 5 2.714(c) (1991).

• I. AEC IS NOT ENTITLED TO INTERVENTION AS OF RIGHT.

An evaluation of AEC's Petition in light of the relevant regulatory guidelines, as well as the common law standing requirements governing intervention as of right, illustrates that the Commissien should deny AEC's Petition. Specifically, the NRC's Rules of Practice provide that the Commission, the presid-ing officer, or the Atomic Safety and Licensing Board designated 1/ See The Cleveland Electric Illuminating Company's and The 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 suspend the Antitrust Conditions Insofar as They Apply to The Cleveland Electric Illuminating Company R7d The Toledo Edison Company (May 31, 1991) ("CEI/TE Request for Hearing"); Ohio Edison Company's

. Request for a Hearing with Respect to the Denial of the Application to Amend the Perry Opereting License to suspend the Antitrust Conditions Insofar as They Apply to Ohio

. Edison Company (May 31, 1991) ("OE Request for Hearing").

_ . - __. ._ ___ _ _ _ - . _ _ ___ __ - . _ . ~ . - .

to rule on petitions to intervene shouJd consider, among other things, the following factors in its analysis of such petitions: e c

(1) The nature of the petitioner's right under the Act to be modo a party to the e proceeding.

(ii) The nature and extent of the petitioner's property, financial, or other i interest.in t.ae proceeding.

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

10 C.F.R. SS 2.714(c) and (d) (1991).

In addition-to a favorable showing under these three regulatory factors, a-potential intervenor must also fulfill the

" judicial concepts of standing" to qualify for intervention as of right. Florida Power and Light Co. (St. Lucie, Units 1 and 2),

CLI-89-21, 30 N.R.C. 325, 329 (1989) (Commission consistently applies " contemporaneous judicial concepts of standing" to deter-mine whether petitioner has sufficient interest to intervene as of right); Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI*76-27, 4 N.R.C. 610, 613-14 (1976) ,

(" contemporaneous judicial concepts of standing" should be applied in considering whether petitioner has alleged an

" interest (which) may be affected by the proceeding," within the meaning of S 189a of the Atomic Energy Act, as amended,- 42 U.S.C.

S 2239(a) and 10 C.F.R.-S 2.714). Accord Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 N.R.C.

. t 327, 332 (1983). That is, the petitioner must show that the-

. _ . _ - . . . . . _ . _ , _ . _ _ . . _ _ _ . _ _ , . _ _ . _ , . . _ _ _ _ _ ~ _ _ . - , _ _ ___..._ _ _ . _ _ . _ _ _

challenged action could cause it " injury-in-fact," and that such injury is arguably within the " zone of interest" protected by the Atomic Energy Act. St. Lucie, 30 N.R.C. at 329 (citing Three

, Mile Island, 18 N.R.C. at 332).

The petitioner who alleges merely " abstract concerns" in the matter which are not accompanied by some real impact on the petitioner will not qualify for intervention. See Transnuclear, Inc. (Ten Applications for Low-Enriched Uranium Exports to EURATOM Member Nations), CLI-77-24, 6 N.R.C. 525, 531 (1977). ,

Cf. Warth v. Seldin, 422 U.S. 490, 501 (1974) (injury-in-fact must be " distinct and palpable"); Allen v. Wright, 468 U.S. 737, 751 (1984) (" abstract," " conjectural" or " hypothetical" injury is not injury-in-fact); Allied-General Nuclear Services-(Barnwell 7tel Receiving and Storage Station), ALAB-320, 3 N.R.C. 420, 422 (1976) (citing Sierra Club v. Morton, 405 U.S. 727, 739-10 (1972)

(petitioner must allege a " direct stake in the outcome" of the proceeding to warrant intervention)).

A review of AEC's arguments for intervention reveals that the indirect, contingent, and speculative nature of its alleged " interest" in this proceeding precludes it from fulfill- ,

ing either the regulatory or common law standards governing intervention as of right. Essentially, AEC argues that because it-is a beneficiary of the antitrust conditions imposed on the Alabama Power Company's Joseph M. Farley plant, an NRC decision l

t -suspending the antitrust conditions appended to the Perry and I.

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Davis-Desse operating licenses "might be used as arguable precedent" in some future action to attempt to " alter or vitiate" the Farley antitrust conditions. See AEC Petition at 2 (emphasis

, added). AEC asserts that its interest in protecting itself from any such " contingency" is sufficient to warrant its intervention in this proceeding.-

First, the tenuous nature of AEC's " property, financial or other interest" related to the Perry and Davis-Besse antitrust conditions is insufficient to warrant AEC's intervention. See 10 C.F.R. $ 2.714(d)(1) and (11). AEC is not a competitor of TE, CEI or OE, nor is-AEC a beneficiary of the antitrust conditions appended to the Perry or Davis-Besse operating licenses.

Accordingly, any order suspending those antitrust conditions could have no impact on AEC's financial or other interests. See 10 C.F.R. S 2.714(d)(iii). Thus, AEC fails to allege an interest sufficient _to warrant its intervention as of right under the relevant regulatory factors. See 10 C.F.R. S 2.714(d).

Under_similar_ reasoning, AEC_cannot allege an " injury-in-fact" necessary to fulfill the common law standing require-ments._ See St. Lucie, 30 N.R.C. at 329; Pebble Springs, 4 N.R.C.

at 614;_Three Mile Island, 18 N.R.C. at 332. AEC's 311egation of injury resulting from future use of detrimental precedent hinges on the occurrence of a " hypothetical" proceeding. -Allen, 468 U.S. at 751. Such an allegation is insufficient as "(a) plain- ,

tiff must allege that-he_has been or will'in fact be perceptibly Q

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 (quoting United t States v. SCRAP, 412 U.S. 669, 688-89 (1973)).

At best, AEC's asserted interest represents a concern uniformly affecting all beneficiaries of antitrust license condi-tions on nuclear power plants. Such a generalized grievance

" shared in substantially equal measure by all or a large class of citizens' will not support intervention. Three Mile Island, 18 N.R.C. at 333-(citing Transnuclear, 6 N.R.C. at 531.) See also Wa rth , 4 2 2 ') . S . at 499.

In summary, AEC's Interest is too remote and speculative to satisfy the three requirements of S 2.714(d). Additionally, AEC-will not suffer an injury-in-fact: the potential future use

• of detrimental precedent fails to fulfill the common law standing requirements. As such, AEC cannot intervene as of right.

II. AEC'S ALLEGED INTEREST IN THIS PROCEEDING IS INSUFFICIENT TO WARRANT DISCRETIONARY INTERVENTION. ,

AEC's alleged concern is also insufficient to warrant AEC's admission as a party to'the proceeding through exercise of the Commission's discretionary powers. See Pebble Springe, 4 N.R.C. at 614-17; Three Mile Island, 18 N.R.C. at 333. See also Commonwealth Edison Co. (Dresden-Nuclear Power-Station, Unit 1),

i b CLI-81-25, 14 N.R.C. 616, 623 (1981). In determining whether-to 9

exercise its discretion in allowing intervention, the Commission should consider, among others, the following factors:

(a) Weighing in favor of allowing i intervention --

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

(2) The natuce and extent of the petitioner's property, financial, or other interest in the proceeding.

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

(b) Weighing against allowing intervention --

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

(2) The extent to which the petitioner's interest will be represented by existing parties.

(1) The extent to which petitioner'c-participation will inappropriately broaden or delay the proceeding.

l-l Pebble Springs, 4 N.R.C. at 616.

While not presenting a complete Pebble Springs analysis l

l regarding discretionary intervention, AEC's Petition did address factors-(a)(2).and (3) of that test in describing the possible

-effect of an order _from the instant-proceeding on AEC's interest.

. These Pebble Spring factors, however, are the same as those l

1 l

l expressed inLS 2.714(d)(ii) and (iii) which, for tl)e reasons discussed above, weigh against AEC's intervention.

Additionally, the Licensees base their amendment 3 requests in this action on the unfavorable economics of the Perry l and Davis-Besse nuclear facilities rather than those associated with Parley. As such, AEC could not contribute in any meaningful

~

way to an evaluation of the currently undisputed economic conclusions-regarding the Perry and Davis-Besse facilities.

Moreover, AEC may protect any valid interest it possesses by opposing any future request brought by Alabama Power to suspend the Farley antitrust license conditions.

Additionally, the Department of Justice, the NRC Staff, and the City of Cleveland, a CEI competitor as well as the direct benefi-clary of antitrust conditions at issue in this proceeding, can _

adequately represent AEC's position on the disputed legal issues.2/ Thus,.the Pebble Springs factors weigh against-the discretionary admission of AEC as a party to this proceeding.

In summery, AEC has not met its burden of satisfying the regulatory and common law requirements for intervention. See 10

~

-2/ See Opposition of the City of Cleveland, rshio, to a Hearing with Respect to the Denial of Application to Suspend Anti-4 Trust License Conditions and Petition-to Intervene in the-Event Hearing is Requested and is Granted (May 31, 1991).

The Licensees'do not contest the city of Cleveland's right

. to intervene in this proceeding.

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I I

C.F.R. 52.732 (1991). Accordingly, CEI and TE respectfully request that the commission deny AEC's Petition for Leave to Intervene.

2 Respectfully submitted, M o b_ N urf//~

JMesP. Murpily'

&Y Squire, Sanders & Dempsey 1201 Pennsylvania Avenue, N.W.

P.O. Box 407 washington, D.C. 20044-0407-(202) 626-6793 Date: June 14, 1991 Counsel for The Cleveland Electric Illuminating Company and The Toledo Edison Company 1

t 2 L;i!

UNITED STATES OF AMERICA UdeC NUCLEAR REGULATORY COMMISSION

'91 JA' 14 P4 31 4

BEFORE THE NUCLEAR REGULATORY COMMISSION,p qi  :, y ; r. , <

, ouLX! m ..ti In the Matter of )

OHIO EDISON COMPANY

)

(Perry Nuclear Power Plant, )

Unit 1) and THE CLEVELAND ELECTRIC )

ILLUMINATING COMPANY, et nl. ) Docket Nos. 50-440A (Perry Nuclear Power Plant, Unit 1 ) and 50-346A (TAC 1 and Davib-Besse Nuclear ) Nos. 66288, 68313 Power Station, Unit 1) ) and 68880)

)

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Answer of The Cleveland Electric Illuminating Company and The Toledo Edison Company to Petition of Alabama Electric Cooperative, Inc. for Leave to Intervene is served this 14th day of June, 1991, to each of tha following persons in the manner indicated below:

Edwin Ries, Esc.

Office of the General Counsel U.S. Nuclear Regulatory Commission 1 White Flint North 11555 Rockville Pike Rockville, MD 20852 (BY HAND)

Mark C. Schechter Chief Transportation, Energy and i Agriculture Section Antitrust. Division Department of Justice Judiciary Center Building

.. 555 Fourth Street,.N.W.

Washington, D.C. 20001 (BY HAND) i

~

, D. Biard MacGuineas, Esq.

Volpe, Boskey and Lyons 918 Sixteenth Street, N.W., No. 602 Washington, D.C. 20006 (BY 11AND) i Gerald Charnoff, Esq.

Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W.

Washington, D.C. 20037

( DY 11AND )

Craig S. Miller Director of Law June W. Weiner-Chief Assistant Director of Law William M. Ondrey Gruber Assistant Director of Law City llall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44115 (BY FEDERAL EXPRESS)

Reuben Goldberg Goldberg, Fieldman & Letham, P.C.

1100 Fifteenth Street, N.W.

Washington, D.C. 20005 (BY llAND)

Aw fAl~ k k _

James P. bfurfy 4

,