ML20086T612

Nuclear Regulatory Commission Issuances for October 1991. Pages 229-260

ML20086T612
Person / Time
Issue date:	12/31/1991
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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References
NUREG-0750, NUREG-0750-V34-N04, NUREG-750, NUREG-750-V34-N4, NUDOCS 9201060349
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NUREG-0750 l

l Vol. 34, No. 4 Pa00s 229-260 i

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NUCLEAR REGULATORY l

COMMISSION lSSUANCES i

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g U.S. NUCLEAR REGULA'Tf0RY'GOMMISSION i

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Available from Suporintentendent of Documents U.S. Government Printing Office Post Office Box 37082 Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issues, 4 indexos, ar.d 2-4 hardbound editions for this publication.

Single copios of this publication are available from National Technical Information Service, Springfield, VA 22161 Errofs in this publication may be reported to the Division of Froodom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)

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fJUREG-0750 i

Vol. 34, f40, 4 l

Pagos 229-260 l

l NUCLEAR REGULATORY COMMISSION ISSUANCES October 1991 l

l This report includos the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' C'ecisions (DD), and the Donials of Petttions for Rulomaking (DPRM).

The summaries and headnotes proceding the opinions reportod heroin l

are not to be doomed a part of those opinions or have any Indopondent legal significanco.

i U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Froodom of Information and Pubhcations Services Offico of Administration U.S, Nucloar Regulatory Commission Washington, DC 20555 (301/492-8925)

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COMMISSIONERS Ivan Selin, Chairman Kenneth C. Rogors James R. Curtiss Fonest J. Remick B. Paul Cotter, Chief Administrative Judge, Atomic Safety and Licensing Board Panel N

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CONTI'.NTS i

Issuance of the Atomic Safety and Licensing linard CLEVEl.AND ELECTRIC ILLUhilNATING COh1PANY and TOLEDO EDISON COhiPANY (Perry Nuclear Power Plant, Unit 1; Davis-Ilesse Nuclear ibwer Station, Unit 1)

Docket Nos. 50440 A,50-346-A (ASLBP No. 91644 01-A)

(Suspension of Antitrust Conditions) (Ibcility Operating License No, NPF 58, NPF-3)

PREllEARING CONFERENCE ORDER, LDP-9135, Cctober 7,1991,, 229 01110 EDISON COh1PANY (Perry Nuc! car Power Plant, Unit 1)

Docket No. 50-440-A (ASLDP No. 91 644-01-A)

(Suspension of Antitrust Conditions)(Ricility Operathig License No. NPF 58)

PREllEARING CONFERENCE ORDER, LDP-91-38, October 7,1991,. 229 O

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an icensing Boarcs issuances S-

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ATOMIC SAFETY AND LICENSING DOARD PANEL g

B. Pau\\ Cotter,* Chief Administrative Judge D.

Robert M. Lazo,' Deputy Chief Administrative Judge (Executive)

N Fredericic J. Snon

• Deputy Chief Administrative Judge (lechnical)

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l Members

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Dr George C Anderson James P. Gleamn Dr Kenneth A. McConorn l

Charles Bechhoefor*

Dr Cadet H Hand. Jr Morton B Margulies*

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I Peter B Bloch*

Dr Jerry Harbour

• Marshall E. Mder

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G Paul Bonmerk til*

Dr David L. Hetnck 1hornas S. Moore

• Glenn O. Engm Emest E hill Dr Peter A. Moms g

l Dr A Dixon Callihan Dr Frank F. Hooper Dr Rchard R. Parizek James H. Carpentor*

Elizabeth B Johnson Dr Harry Rein

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j Dr Richard F. Cole

• Dr Watter H. Jordan testor S. Rubenstein a

Dr Thomas E. Elleman Dr Charies N. Kelber*

Dr David R. Schink Dr George A. Ferguson Dr. Jeny R. Khne*

tvan W Smith

• h Dr Hany Foreman Dr Peter S. tarn

• Dr George TKiey Dr. Richard F. Foster Dr James C Lamb lit Sheldon J. Wotte d

John H Frye Ill*

Dr. Emmeth A. Luethe i

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• Permanent panel members V

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Cite as 34 NRC 2P9 (1991)

LBP-91 38 UNITED STATES OF AMERICA NUCLEAR REGULAlORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Marshall E. Miller, Chairman Charles Bechhoefer G. Paul Bollwerk 111 in the Matter of Docket Nos. 50-440-A 50-346 A (ASLBP No. 91644 01.A)

(Suspension of Antitrust Conditions)

(Facility Operating License Nos. NPF-58, NPF-3)

OHIO EDISON COMPANY (Perry Nuclear Power Plant, Unit 1)

CLEVELAND ELECTRIC ILLUMINATING COMPANY and TOLEDO EDISON COMPANY (Perry Nuclear Power Plant, Unit 1; Davis-Besso Nuclear Power Station, Unit 1)

October 7,1991 in a prehearing conference order, the Licensing Board rules upon hearing requests and intervention petitions emanating from an NRC Staff determination to ceny license amendment applications seeking the suspension of the antitrust conditions in the operating licenses for the Perry and Davis-Besse facilities.'

After determining that it has jurisdiction to consider the various hearing and intervention petitions, the Board grants the applicants' hearing requests and 229 l

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three of the four intervention petitions, one as a matter of discretion. The lioard denies the other intervention petition, which was late filed, as inadequate to merit intervening party status. 'Ihe Iloard also admits two issues put forth by one of the license tunendment applicants alleging impro[xr congressional interference and prejudgment relating to the Staff's decisional process and establishes discovery rules for those issues. Finally, the Board establishes a schedule for the submission of a jointly formulated " bedrock" legal issue regarding the continumg validity of the antitrust conditions in the Perry and Davis.Ilesse operating licenses to be followed by the filing of dispositive motions relative to that issue.

ATOMIC ENEltGY ACT: INTEltPitETATION; DENI Al, OF Al'P1,1 CATION Agency regulations establish that. as a longstanding matter of statutory construction, when an applicant /licens:c's request for !! censing action is denied, it is considered an " interested person" v ithin the nicaning of section 189a of the Atomic Energy Act (AEA) 42 U.S.C.12239(a). See 10 C.F.R. Il 2.103(b),

2.105(d), 2.10S(b), 2.1205.

ATOMIC ENEltGY ACT: INTEllPitETATION An applicam/ licensee is a " person" within the meaning of the Atomic Energy Act. Sec 42 U.S.C. I2014(s).

ATOMIC ENEltGY ACT: INTEllPilFTATION in a proceeding involving the terms and conditions of its own permit, an applicaat/ licensee has an " interest" that "may be affected" within the meaning of AEA section 189a,42 U.S.C 5 2239(a).

LICENSE AMENOMENT(S): DEFINIT;ON A licensec request that the agency nullify certain condhions in its license is a request for an "vnendment."

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l ADJUDICATORY llOAllDS: DELEGATED AUTilORilY (RO.1,ATION TO NitC STAIT) 1.lCENSE AMENDMENT (Sn: ItOI.E OF NRC STAIT lt is standard practice for die NRC Staff, acting pursuant to Commission delegation, to undertake a technical and legal assessment of a license amendment application and make a determination conceraing the propriety of the request.

Sec, c.g.,10 C.F.R El 2.101(a)(1), 2.102(a); NRC Manual, ch. 0123-32. In the absance of a hearing request, the Staff's administrative determination regarding the application generally will be dispositive, if a hearing request is filed, then one of the > cts of hearing prmedures specified in 10 C.F.R. Part 2 (or other hearing procedures specified by the Commission in I,uy particular irutance) may be afforded to provide an independent adjudicatory determination regarding the i

merits of the application.

ATOMIC ENERGY ACT: ANTITitUST JUlllSDICTION NUCLEAll REGULATOli" COMMISSION: ANTITRUST AUTilORITY; JURISDICTION ne narrow supervisory antitrust jurisdiction accorded the Commission under AEA section 105c,42 U.S.C. 6 2135(c), cannot be considered to cin;umscribe the Commission's more general authority, as reflected i. AEA section 189a, 42 U.S.C. 6 2239(a), and 10 C.F.R. 6 50.90, to amend a facility license at the r

request of the lleensee, f

RULES OF PRACTICE: NOTICE OF PROPOSED ACTION OR OPPORTUNITY FOR llEARING; INTERVENTION PETITION (S) i (TIMELINESS)

A filing deadline specified in a totice of opportunity for hearing is not tolled l

or otherwise affected by language in a notice establishing a licensing teard that I

simply declares that hearing requests and intervention petitions can be filed. See 10 C.F.R. 6 2.105(d).

RULES OF PRACTICE: INTERVENTION PETITION (S) (GOOD CAUSE FOR LATE FILING)

A party that fails to provide good cause for submitting its intervention reque<t l

after the specified filing date must make a compelling showing regardmg the l

other four factors that govern the admission of late. filed intervention petitions.

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f See, e.g., Mississippi Power d Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAll 7N,16 NRC 1725,1730 (1982).

ItULES OF PRACTICEt UNTlhlElX INTERVI:NTION l'ETITIONS (IlitOAllENING OF ISSUES OR DELAV)

The fifth factor governing the admission of late-filed intervention petitions

- the extent to which petitioner's participation in the proceeding will broaden the issues or delay the proceeding - is one "of immense importance 10 the overall balancing process." long Island U;hting Co. (Shoreham Nuclear Power Station, Unit 1), ALAD 743,18 NRC 387,402 (1983).

ATOhllC ENERGY ACT: STANDING TO INTERVENE (INJURV IN FACT)

RULES OF PilACTICE: STANDING TO INTERVENE (INJURV IN l'ACT)

An electric cooperative seeking to intervene in a proceeding regarding antitrust conditions in a f acility operating license lacks " injury in fact" when it does not operate in licensce's geographic market or have any other significant relationship with licensee or its direct competitors.

ATO%11C ENERGY ACT: STANDING TO INTERVENE (ZONE OF INTEREST (S))

RULES OF PRACTICEt STANDING TO INTERVENE (ZONE OF INTEREST (S))

An " economic" interest in a facility generally is not sufficient to afford an intervenor standing in a Commission licensing proceeding regarding health and safety matters, See, e.g., Public Service Co. of New flampshire (Scabrook Sation, Unit 2), CL1-84-6,19 NRC 975, 978 (1984). In the context of an antitrust-related proceeding, however, such interests take ccater stage; indeed, they are matters that fall squarely within the " zone of interests" that the Congress sought to protect, as reflected in AEA section 105,42 U.S.C. 5 2135. See Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAD 470,7 NRC 473, 474 75 (1978).

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ATOMIC l'NERGY ACT: STANDING 'l O INTI:RYl:NE (INJURY IN l'ACT)

RULES Of PRACTICE: STANDING TO INTERVENE (INJURY IN FACT)

When the only injury a petitioner might suffer as a result of a proceeding is establishmcal of a bad precedent that might be relied usin in a future proceeding in whk could be involved, this is the sort of " generalized grievarge" that is und < amote and, therefore, insufficient to establish the " injury in fact" necessary to establish stan.!ing as of right. See Afelropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CL183 25,18 NRC 327,332 33 (1983);

Traranucicar Inc., CL177 24,6 NRC 525, $31 (1977). See also Conso:Idated Edison Co, of New fora (lqdian Point, Units 1,2, and 3), ALAB 3(M. 3 NPC 1, 5 6 (1976).

RULES OF PRACTICE: INTERVENTION (DISCRETIONARY)

A primary consideration in determining whether to grant discretionary iriter.

vention is the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record. See Portland General /?/ectric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLi-76 27, 4 NRC 610, 616 (1976). See also Fermi, ALAB-470,7 NRC at 475 n.2; Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAD 413,5 NRC 1418, 1422 (1977).

ATOMIC ENERGY ACT: STANO NG TO INTERVENE (INJURY IN FACT)

RULES OF PRACTICE: STANDING TO INTERVENE (INJURY IN FACT)

Until a municipality decides w hether it will institute an electrical distribution system, any injury it purports to suffer as a consequence of a proceeding to suspend the antitrust conditions governing the activities of its potential supplier-is too abstract and hypothetical to establish the " injury in fact" necessary to afford it standing as of right.

l RULES OF PRACTICE: INTERVENTION IlY GOVERNMENTAL i

AGENCY in an nntitrust proceeding relating to a commercial power reactor construction

. permit or operating license application, under AEA section 105c(5),42 U.S.C.

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6 2135(c)($). the authority of die Department of Justice (DOJ) to participate is l

unquestionable, in a regular license amendment proceeding, however, DOJ par-ticipation hinges upon its comphance with the standards governing intervention in such proceedings.

ADJUDICATOltY llEAltlNGS: STATUS OF NitC STAFF ANUDICATORY PROCEEDINGS:

TATUS Ol' NRC STAFF IJCENSING llOAltD(S): CONSIP'

'ON OF NRC STAFF EVIDl;NCE

%c Staff views relative to the i -

ocior ' a censing board are to be accorded the same status o. >

and r biases can be sciutinized accordingly. See, e.g.,1, 3 NRC at 6; Southern California Edison Co. (San 0:

allon,.' sits 2 and 3), ALAB.268,1 NRC 383,399 p IllAS OR PitEJUDGMENT: STANDARDS DISQUALIFICATION: STANDARDS in perl'orming a myiew of an agency decision allegedly subject to bias, including improper legislative influence, the independent assessment that an -

adjudicatory decisionmaker (such as a licensing taud) renders regarding the merits of the parties' legal positions will rectify any earlier impropriety, See Gulf oil Corp. v. FPC,563 F.2d 588,611-12 (3d Cir.1977), cert. denied. 434 U.S.1062 (1978).

j IllAS OR PREJUDGMENT: STANDARDS DISQUALIFICATION: STANDARDS To support a linding of improper legislative interference with an agency's de-cisionmaking process, in the context of a judicial or quasi-judicial proceeding, the " appearance of bias or pressure" may be sufficient, while in other circum-stances a showing of actual influence may be necessary. D.C. Federation of Civic Ass'ns v. Volpe, 459 F.2d 1231,1246-47 (D.C. Cir.), cert. denied. 405 l

U.S.1030 (1972). See also Town of orangetown v. Ruckelshaus,740 F.2d 185, 188 (2d Cir.1984).

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ADJUDICATOltY PROCI:EDINGS: ROLE OF NitC STAIT ADN11NISTRATIVE PitOCEDURE ACT: EX PARTI' COhlh1UNICATIONS LICENSE AMI:NDhlENT(S): ROLE Or NRC STAIT RULi'S Ol' PRACTICI:: STAFF SIEl: TINGS WITil PARTIES A Staff administrative review determination relative to a license amendment application is not an " adjudicatory function lecause, among other things, restrictions prohibiting off the record, ex parte contacts, which are a hallmark of judicial decisionmaking, see Sictra Club v. Costic,657 F.2d 298,400 (D.C.

Cir.1981), are not applicable. As a matter of policy, Staff often conducts public meetings relating to its application review function, sec 43 Fed. Reg. 28,058 (1979), but there is no statutory or regulatory requirement that it do so. Scc 10 C.F.R. 5 2.102(a). See aim Id. { 2.4 (dermition of " Commission adjudicatory employee").

RULES OF PRACTICEt APPLICANT llEARING REQUESTS (PLEADING REQUIREN1ENTS)

An applicant seeking a hearing following a Staff denial of its request for licensing action is not subject to the pleading requirements applicable to intervening parties under 10 C.F.R. 5 2.714(b). Applicants in such circumstances must identify the issues they wish to litigate, which must be within the scope of the hearing.

PitEllEARING CONFEl(ENCE ORDER (Ruling on llearing/Intersention Petitions and Issues / Contentions; Setting Schedule for Summary Disposition Motions and Responses)

Now hefore us for disposition in this antitrust-related proceeding are two hearing petitions and tour requests to intervene. We previously had designated these matters for consideration at a prehearing conference scheduled for Septem-ber 19,1991.3 As preliminarily announced at that prehearing conference and as described more fully herein, based upon our determination that we have juris-diction to entertain these hearing / intervention requests, we grant the two hearing I see Memorandum and on

'une 19,1991) (unpubished); Neuce er Rescheduled lwheanng Cmference (July 30,1991) (anpublahed) 235

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petitions and 9tfee of the four intervention requests, one as a matter of discretion.

We deny the other intervention request, which was late hied, as inadequate to merit intervening party status, in addition, we admit two of the issues pt:t forth by one of die licensees who have requested this hearing, establish ground rules for discovery relative to those issues, and, with the agreement of all the parties, establish a schedule for the subruission of a jointly formulated " bedrock" legal issue, which the parties suggest will be controlling in this case, and for the filing of dispositive motions relative to timt issue.

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IIACliGROUND in a May 1,1991 federal Register notice,* the NRC Staff declared that it had denied both the request of Ohio Edison Company (OE) for an amendment to the operating license for the Perry Nuclear Power Plant, Unit 1, and the joint application of Cleveland Electric illuminating Company and the Toledo Edison Company (CEVIII) for amendments to the operating licenses for the Perry facility and the Davis Desse Nuclear Power Station, Unit 1. In both instances, the amendments proffered by these facility owners (hereinafter referred tojointly as "applictmts" or " licensees") sought the suspension of the antitmst conditions imposed upon them in a previous antitrust review proceeding before this agency,5

'lhe May I notice also stated that an opportunity for a hearing was bcing afforded with respect to the Staff's denial action. Under the terms of the notice, licensec hearing requests or petitions by interesvd persons to intervene in any hearing were required to be filed on or before May 31,1991.

In lesponse to this notice of opportunity for hearing, on May 31 OE and CEl/TE filed hearing requests.' On that same date, the City of Cleveland, Ohio (Cleveland), filed an opposition to these hearing requests, contesting the licensees' right to a hearing regarding the denial of their applications,5 Alternatively, Cleveland asks that if either of the licensee hearing requests is granted, it be admitted to the proceeding as an intervening party, Intervenor status also is sought by Alabama Electric Cooperative, Inc. (AEC), American 3 561 ed Reg 20,057 (1991) 3 See Tof,M4uan Co. (Davis Doss + Nuclear IWer stanam, Units I,2, and 3), WIP 774,5 NRC 133 (1977),

Wr'd as owA4,4, ALAB 560,10 NRC 2d (1979).

Two other soewners or the Perry racility,IVnnsylvania Iwer Cornpany and Duquesne Usht Company, have nra joined in the requnsts of oC and Cl.1/rE tur auspension er the andtrust smhuuns in the Perry lwense.

• su Request ror a licating with Respect to the thal ef the Aglicauon in Amend the l'erry operaung license to suspend the Anstrun Condsms insorar as 'they Apply to toli)(May 31,1991); Request for a licanng with Respm to the Denial of the Aghcaum to Amend the Perry and DeywBesse operaung Ucenses to suspend the Antitrun Condsms insofar as They Apply to (CEl/rEl (May 31,1991).

8 3ee opposiuon or (Cleveland] to a lleanng with Respect to the Denial of Applaanms to suspenJ Anu trust Ocense Condinons and Puunan to Interverm in the Event iloanns is Rcquested and is (hanted (May 31,1991)

[hemnarter Cleveland Pendon].

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hiunicipal Power-Ohio, hic. (Ahip-Ohio), and the City of 11 rook Park, Ohio (11 rook Park).* The United States Department of Justice (DOJ), which earlier provided the Staff with comments regarding the licensecs' amendment requests, also has filed a notice of intent to participale h this proceeding.'

At a day long September 19,1991 prehearing conference held in Bethesda, htaryland, we entertained oral argument from the licensees, the various inter-vention petitioners, the NRC Staff, and DOJ concerning the various pending requests and made preliminary determinatiens on a number of matters.' A fuller explication of our rulings is set forth below.

II. OE AND CEl/TE IIEARING PETITIONS Under the terms of the hiay 1991 notice of opportunity for hearing, OE nnd CEl/TE submitted timely hearing petitions. Further, by reason of their status as the applicants for license amendments seeking the suspension of certain provisions of their existing licenses, they appear to fall squarely within the directive of section 189a(1) of the Atomic Energy Act of 1954 (AEA),

as amended, that "{ljn any proceeding under [the AEA], for the granting, suspending, revoking, or amending of any license,,, the Commission shall grant a hearing upon the request of any person w hose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding."'

In:ervenor Cleveland (with moral support from Ah1P-Ohio) nonetheless attempts to forestall any further agency proceedings regarding the licensecs' amendment requests. In its initial filing and a July 10 supplement thereto, Cleveland asserts that applicants' hearing petitions should be denied on several different grounds."

According to Cleveland, applicants are not entitled to a hearing because (1) they are not " persons whose interest may be affected" by this proceeding; (2) the subject matter of this proceeding - applicants' requests to suspend the antitrust provisions in the Perry and Davis-Desse operating licenses - does not fall into one of the categories of licensing actions enumerated in section 189a(1) as subject to a hearing; (3) applicants already have had their hearing; and (4) the Commission lacks authority to grant the rclief requested. In their

'See huuan of lAT.C] for leave to intonene (May 30,1991) [hereinaher ALC PNnon), Petinon of (AMP-ohio] for leave to Imcrvene (July 3,1991) [heremarier Ah PMo Peuunnh hntion of (nrod Park) for leave to Intenene LAug 8,1991).

7 Nonce of Imcm to Panicipete (July 22,1991).

'See Tr.12% (transcnpa of preheanng caderence)

'42 U.S C. l 2239(410) (emphasis supphed).

"In its July supplement, Cleveland presents these arguments as a series of "contennms" to be hugate,L See 10 CER. 4 2 714(b)(1) supplemem to Con.hnunal ihnen to Imervene or [Clevelandt subrnmod in Connec6m with July 23,1991 IWhcanng Conforcuce Quly 10,1991) m 1316 [hemnafier Cleveland supplement}. See aire surP emem by (AMP-ohiot to Iwne for leave to Intervene Quly 10,1991) at 12.

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reply to Cleveland's opposition, licensees maintain titt each of these assertions is mistaken." In its written response to the licensecs' hearing petitions, the Stalf makes no specific mention of Cleveland's arguments, other than to state that it does not oppose the grant of licensees' hearing requests.u During the prehearing conference, however, in response to Cleveland's oral presentation seeking the demal of applicants' hearing requests, the Staff detailed its disagreement with Cleveland's positions regarding this lloard's jurisdiction to conduct this proceeding."

Dismissal of Cleveland's first three assertions requires little detailed discus-sion. To accept its first argument, we would have to put aside the various pro-visions of the agency's regulatbns establishing that, as a longstanding matter of statutory construction, the Commission considers an applicant / licensee to be an " interested person" within thc meaning of section 189a in instances in which its request for licensing action is denied," Even if we were to do so, however, it is apparent that an applicant / licensee is a " person" within the meaning of the AEA," and that in a proceeding involving a determination about the continuing validity of the terms and conditions of its own permit, an applicant / licensee certainly has an " interest" that "may be affected" within the meaning of sec.

tion 189a.8* Licensees thus have no difficulty fulfilling these statutory hearing prerequisites.

Ily the same token, we are unwilling to accept Cleveland's crabbed interpre-tation of section 189a as it relates to the category of licensing action sought by the applicants in this instance. It is not altogether clear that licensecs' request to

" suspend"(as opposed to " delete") the existing erry and Davis-Besse operating p

license antitrust conditions constitutes in form what is generally considered an U Answer d [ot) to opposuion of LOevehd) to a litanng wuh kespea to the Denial of Applicauma to susprad Anutrust license Conditium and Ittaim to intervene in the t;wnt licanns la Requested and oramed Oune 17,1991) at 2 6 (heretnaher oE Answer la Oewland oppuition); Answer af [ct'l/rEl in oittuitim or (Ocveland] to a llearing with Restwei to the Denial of Appheauuns to suspend Antitrust liceme Omdations and Iwidm to Imerwns in the Enm IIcaring la Paquened and oramed (June 17,1991) et s-9 (heromafter Q:l/IE Answer to Oeveland olyusiuml.

u 3ee NRC stafra Respmas to Petiuons for trave to imervene 1%d by [Oevaland) and l AEC) Oune 20,1991) at II,12 (hcrematter staff Reapese to Ocveland and AEC IVtiunnst U 3se Tr.173-81 H 5ee 10 CER. 5 2.103(b) (naies of denial or pruemul denial for m4tenals bcensing s;phcatum shallinform awhcant nr ng4 to e heanna); kr (2_105(d) (notice of papsad actum shall specify that awhcant rnay 6te a heanns request); U 4 2.108(b) (in evem appheadm is daued by staff for failure to sugyly infarvnauon, notice or daual must enmde that apphcant may demand a hearing); ur 12,1205 (rnaienals or ryerator hoe 4mng enhcant inued denial nr proposed denial may Ele request for informal heanng).

Usee 42 tLS.C. 6 2014(s).

I* Ahhough Geveland sisens that the decision of the UiJted states Court nr Appeals for the District or Columbia Orcua in t/aiva of Concern 4J Sciennesr v. N#C,735 I 2d 1437,1416-48 (D C, Cir.1954), cert. Jenied,469 U.s-1132 0915), surycrts its reading of AFA sectim 1894 as not apphcable to an art cant /.icensee, see Ovveland h

Ibitim at 24, Oeveland supplement at 9 n.', for the ressms gnen in the oE and CE!/rE entaitions we And that cue inappaits. See oh Answer to Oeveland oppos uon at 2-3; CllTE Answer to Oewland opputuon at -

3-3.

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"amerahnent."" Nonetheless, we have no doubt that the substanthe thimt of dicit request for relief - that this agency nulhfy those conditions as applied to diem - is, by any reasonable interpretation of the term, a request for an

" amendment" of their existing authori/ation under the itrry and Davis-llesse i

operadr.g licenses,"

Regarding Cleveland's third argument, it is apparent that die Staff's initial administrative review and determination relative to hcensecs' amendment re-

. quests cannot be equated to or considered a substitute for the hearing to which these applicants would otherwise be entitled under AEA section 189a. It is standard practice for the Staff, acting pursuant to Commission delegation, to undertake a technical and legal assessment of a license amendment application and make a determination concerning the propriety of the request." In the ab-serv of a hearing request, the Staff's administrative determination regarding the upplication generally will be dispositive, if, however, a hearing request is hled, then one of the sets of hearing procedures specihed in 10 C F.R. I art 2 (or mher hearing procedures specified by the Commission in any particular_ in-stance) must be afforded to provide an independent adjudicatory determination regarding the merits of the application, In this instance, the formal hearing procedures specified in Part 2, Subpart O, are being utilized to afford licensees any " hearing" to which they may be entitled under section 189a" Cleveland's fourth argument regarding the agency's jurisdiction to entertain licensecs' application is somewhat more problematic, Cleveland contends that Commission and Appeal Board decisions interpreting AEA section 105,28 the provision of the Act concerning the scope of the Com nission's authority to revicw antitrust matters, establish that regardless of who initiates the request, the "See igra mena 41.

Is Accordmg to Clascimd, any setam to disemimue the anutrust cmdtnans in the Pary and Davis-Besse hcemes will not " amend" thune authoraanims because, by dertrunon, such an "ammidmmt" can ardy le a sevisum that will "unprove" or " change fue the better" or " involve no change in substance w essenca" Cleveland Penne at 5 (cituig Bars law th.nicnary 106 (rev. 4th ed.1968)) Cleveland ansarts that the twensecs' mluosts here cannot be " amendments" because they would only inuse to the dunrnent or itself an/ cther Incal unht s and will involve an obvious change in the suretance of the hcenses. This argummt, of emise, ignore tN f.4 that bcmsas consulcr ths.ir requrats to be beneracial becausc they wiu conect what applicants essen are licmse defects. Moreover, despite Cleveland"a claim to the contrary, we rmd nothing in the dehnitum or " amend" or

• amendment" that precludes such actums frmi errectuanna substannve chege 34s St.acFs few Decnemary 30, 81 (fah ed-1940) ("[tle change, concet, revue," or "It]o alter by modtrican. A deletum, or addition"1 "See, e.g.,10 C.F.R. H 2.101(aXI), 2.102(a); NRC Manual, ch. O'%C32 (IAratar or Nuclear Reactor Ngulation delegated authenty to isnoe, renew, and smend reacter oper.. :icenses eacept where dcaxion rests with an admmistratne 14. Judge, a lacrising board, or the Commissim aher a hemng purwant to 10 CF.R. Part 21 "Cle=cland mamtams that the IAstno or Columbia Carcua's decisaan in Ciment for Ansgan County, lac, v.

FPC 414 I'2d 1125, t 129 (D.C. Cir.1969), estabt,shes that the staft's nuessnsms of heauers' apphcatmns is sufficient to afrord than any heanns rights they might have u ider sectum 189e See Clevejand IVtition at 71. At best, this case suggests that such an assessment by the Commissim, in contrait to the Crunenmim's starr, nught -

be adequaw to sausry applwants' hearing nghts. See eles Kan4fcGee Cerp. (West Chicago Rare lianhs Facihty),

Cl3 52-2,15 NRC 232 (1912), #d sub am Cory of Wess CAscato e, NAC,'101 F.2d 632 Uth Cir.1983x 21 42 U.s C $ 2135.

. 239 l

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Commission has no authority to modify any antitrust condition subsequent to the issuance of an operating license? Alter reviev ing these cases, however, we are convinced that notwithstanding the limitations they recognited exist regarding the Commission's antitrust jurisdiction, in accord with the legislative policy underlying section 105, the Commission (and this Ikurd) has the authority to consider the OE and CEl/TE amendment applications.

Section 105 states initially that nothing in the AEA is to " relieve any person from the operation of" several specified antitrust laws, including the Sherman, Clayton, and Federal Trade Commission Acts? This section's subsequent provisions nonetheless make it apparent that the Commission itself does not have unlimited authority to consider and act to counter anticompetitive situations that rnay arise from activities otherwise subject to its regulatory supervislori. Ihr instance, section 10$b requires that the Commission " report promptly to the Attorney General any infornrition it may have with respect to any utilization -

of special nuclear material or atomic energy which appears to violate or tend toward the violation" of the antitrust laws listed in section 105a, or to restrict free competition in private enterprise? The agency,' however, is given no enforcement or hearing initiation responsibilities with respect to this information, indeed, only if"a court of competent jurisdiction" has found a violation of the antitrust laws in the conduct of an AEA-licensed activity is the Commission authorized to " suspend, revoke or take such other action as it may deem necessary widi respect to any license" to rectify the matter?

%c one specific expansion of this otherwise limited authority is found in section 105c, That provision declares that upon receipt of an application for a license to construct or operate a commercial power reactor, the Commission must seek the advice of the Attorney General of the United States concerning the antitrust implications that may arise from the facility application under consideration 26 Based on this advice, and any evidence adducca at any hearing -

that it may convene regarding the subject matter of this advice, the Commission is to make a finding "whether the activities under the license would create or maintain a situahon inconsistent with the antitrust laws" specified in section 105a? On the basis of these findings, the Commission has the authority to refuse to issue a license or to impose appropriate conditions 28 Yet, even this review 22 in makmg this argumctn, Cleveland "incorporatea by rcrerawc" mme than 25 pgea or a rdmg made cartier berare the sta!L la the rvture, we espect the panics to make their argumenis in run dtatly in ther opers facd with inis Board; any anempt to incorpaste by refemwe submarnaal ponians or a previous rating win te dnregarded.

1342 U,s C. $ 205(a).-

24 14 5 2135(b1 -

23 74 5 2135(a)-

2 eld 12135(eX11 21 14 6 205(cK5) 2:14 8 2135(cX6) 240 i

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__._r authority is circumscribed in that section 105 specifies that any review can take place in connection with an operating license application only upon a showmg that "significant changes in the licensee's activities or proposed activities have

- occurred subsequent to the previous [ construction permit] review,""

in the 1977 South Texas decision referenced by Cleveland,30 the Commission was called upon to interpret section 105 to determine, in the absence of any adserst f ndings during the construction permit antitrust review, under what i

circumstances the co holder of a construction permit could obtain an antitrust review of its co. permittee's activities occurring subsequent to issuance of the permit. All parties before the Commission were in agreement that the question of whether "significant changes" had occurred should te promptly addressed. This could not le done in the context of the operating license proceeding, however, because the final safety analysis report (FSAR), which the regulations mandated must accompany the operating license application, would not be completed for some time. The co permittecs seeking the antitrust review, the Staff, and DOJ argued that, notwithstanding the lack of any operating license proceeding, the Commission could convene a hearing to consider whether an additional antitrust review was warranted under the authority of AEA section 186,31 a provision that gives the Commission authority to revoke a license for any reason that -

would have warumled a refusal to grant a license on an original application.

In addition, DOJ asserted that such authority could be found in AEA section 161 c,32 which empowers the Commission to hold any meetings or hearings it deems necessary to assist it in the exercise of its AEA responsibilities Based upon an extensive review of the history of the 1970 legislative action that resulted in the adoption of section 10$c in its present ferm, the Commission concluded that:

Congress had no intentwo of giving thin Ctznmissim aathonty which could put utilities under a continuing risk of antitrust review, llad Congress agreed with the proposition that this Commission shoulJ have broad antitrust policing powers irulependent of licensing, the statute that emergeJ from these discussions wmld have looked quite different,

, Cmsequently, we find that the Cornmission's antitrust authority is defmed not by the broad powers cantained in (sections 186 and 161], but by the more timited scheme act forth in Section 105.33 As a result, the Commission found it could convene the hearing desired by the parties only, as the other co-permittee suggested, by waiving the requirement -

"M $ 213s(s)(2) - secuan 105s has other provisior relating to reactors that already had conduucunn permita at the time this anuuwt revtow provismn became er!,.ane in 1970. See id { 2135(c)(3), (s).

30#eunom L'g4 ting 4 Pe*er Co (South Tomas Project, Umts i and 2), CL1-7713. 5 NRC 1303 (1977).

31 42 U.s C. I 21%

32 M $ 220l(c).

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that the FSAR accumpany the operating license application, thereby allowing the application to be filed and the operating heense proceeding to begin?

While noting in its South Tr.tas decision the existence of its " continuing police power over conditions properly placed on licemes, after (section] 10$(c) antitrust review," the Commission found that "ouce an initial, f ull antitrust review has been performed, only 'significant changes' warrant reopening,"" Some 2 months later, however, in St. Lucir," the other decision relied upon by Cleveland, the Appeal inoard had occasion to consider whether there might be broader aspects to the Commission's antitrust jurisdiction, The Appeal lloard there concluded that the rationale underlying the Comtnirsion's South Texas decision was dispositive of an intervenor clullenge to the Licensing Board's refusal 10 convene an antitrust review for several reactor facilities that previously had been awarded operating licenses, According to die Appeal Board, the Commission's South Texas ruling made it clear that "[e]xcept perhaps as necessary to enforce the terrns of a license or to revoke one fraudulently obtained, or in circumstances where a plant is sold or so significantly modified as to require a new license,"

the agency's " supervisory antitrust jurisdiction over a nuclear reactor licensee does not extend over the full 14 year term of the operating license but ends at its inception,"31 in addition, in response to the Commission's simultaneous referral to both the Appeal Board and the Director of Nuclear Reactor Regulation of a separate intervenor motion to obtain a declaratory judgment regarding the appropriate procedures for having its antitrust concerns trsolved, the Appeal 11oard declared that in light of the Commission's South Texas ruling, the Director likewise lacked jurisdiction to,nitiate a post. operating lleense antitrust review,

Cleveland contends that these two decisions establish that once an opemting -

lleense issues, the Commission lacks jurisdiction to take any further action-concerning the antitrust aspects of facility operation, including suspending or removing a previously imposed antitrust condition, We agree that nothing in the 1.mguage of section 105 explicitly directs the Commission to exercise antitrust review authority to undertake such an action. Nonetheless, unlike the situations cbnfronting the Commission and the Appeal Board in their respective South Texas and St. Lude decisions, we conclude that the narrow supervisory antitrust jurisdiction accorded the Commission under section 105c cannot be considcred

!o circumscribe the Commission's more general authority, as reflected in AEA section 189a and 10 C.F.R. I 50.90, to amend a facility license at the request of the licensec.

l "sa. a.t na M lJ at 1317.

3*NiJa rmr,mJlaght Co. (St. Imci~ **

Ibner Iht. Unit I), Al.AD4J,6 NRC 2210977).

F lJ. at 22re & n.11 3*sse 4l at 227.

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As is evident from the extended discussion and analysis of the legislative history of section id5 in the Commission's South Tr.tas decision,"in suucturing that provision a panunount congressional concern was that those utilities secking permission to construct and operate nuclear power facilities not le faced with the continuing uncertainty of having to undergo antitrust n' view, Rather, in all liut the inost unusual circumstances, affirmative antitrust review is to tate place once, at the construction permit stage, with additional scrutiny lossible diereafter only as part of the operating license proceeding when it can be established that sutsequent to issuance of the construction Irrmit there was a "significant change" in the permittee's activities. In addition, as the Comminion l

acknowledged in South Tc.tc.s, this limitation on the scope of the Commission's l

antitrust authority to a prelicensing review mirrors a congressional recognition of the agency's unique capacity to identify and correct incipient anticompetitive influences dat may flow from a utility's access to nuclear power, an electrical j

energy source that can be utilized only pursuant to an NRC license. According to the Commission, this singular Commission presence is not attendant in the lusdicensing context, in which the DOJ Antitrust Division, the Federal Trade Commission, and the courts provide antitrust enforcement forums that are as (if not more) suitable."

in considering applicants' requests for licensing action, however, it is ap-parent diat neither of these limiting considerations is applicable. Commission consideration of licensees' request to nullify the previously imposed antitrust conditions decs not invoke tic same potential uncertainty that likely would be i

present if the Commission exercised continuing supervisory antitrust jurisdie-tion over each facility licensee. Indeed, as the architects of this amendment proceeding, licensees necessarily accept any uncertainty arising from its pros, ecution, At the same time, as when it exercises prelicensing antitrust leview, l

the Commission's role here is unique. Ibliowing extensive consideration of the circumstances surrounding the construction and operation of the Davis Desse and perry facilities, it was the Commission's judgment that the situation war-ranted the imposition on the antitrust conditions in question. By the same token, this agency is in the best position to make a judgment about whether the re.

quirements it dictated now should be suspended or otherwise altered. Indeed, it -

seemingly is the only entity in a position to grant applicants the relief they seek.

We thus perceive no basis for advancing the reach of the Commission's South l

Texat decision or the Appeal Board's St Lucie decision to this circunistance involving licensee initiated requests for amendments to their existing license "su cu n o.5 Nuc.t uim "Ju t at u1417. *the Commissicn's imerpecution or empossional intent in this argard secrmngly is tushangsd, as is enderved by the recemly prnposed wie that would not requne any antitmst revww in cr.,mtion with reutor quoting license renowsta, Sn 35 Fed Reg. 29Jho. 29.055 (19W))-

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l conditions.'l Accordingly, we feject this Cleveland atlack upon our jurisdiction to conduct this proceeding,82 In addition, recognizing their status as " person (s) w hose intefvst (nay be affected" by this proceedmg, we grant licensecs' requests to to admitted as paf ties."

111, CITY Ol' Cl.EVELAND PITilflON TO INTEltVENE As was indicated pfeviously, in fesponse to the May 1991 nodce of oppor-tunity for hearing, Cleveland requested that if we grant the licensecs' hearing petitions, we also permit it to participate in this proceeding as an intervening party, In its petition, Cleveland states that it is a municipal corporation that owns and operates Cleveland Public power (CPP), an electric distribution system that serves portions of the Cleveland metropolitan area and is in direct competi.

C our conclusmo in this regard is canistem wah that reache.d by the Agyeal Board, albeit in a decisine rendered pnar to the Cumnussim's Sow 4 Tamar determination. la flamrom Lagasing e=f Powr Ce, (smth Tess Pmie:t, Usuts 1 and 2), ALAll Sal,5 NRC 582,593 n.15 (1977), the Boani suggested that an amendrnet ra uost m accordance wnh 10 CJ ft l 50 90 afforded an appnynsie avenue f<e a bcensee to seek rehef fmin r

an andtrust cmanian it found untenakla. Although in its intervennm ptiuon supplement Oeveland quesnons the ambcatuhiy of the hcense amendment pacodures in 10 Cf.it Past 2, subpan A, to the beensees' requests, see CeveNut supphnent at 68, it is appams that us sigumerus are based upon its misapphcation of those pnwis uns, particularly secuans 2.10l(e) ami 2.102(d). Ahhough these pronswns govern the injual anntrust renew puccedmg at the cmstrucdon permitAycrating bcense stage paiuant to aer. tion 105c, they have no direct applkanon to the amendrrent tvquests before un prsuant to sachun 189a and 10 Cf.R. I 5090.

Of course, our analysa here assumca ht by fashioning their applic4 tens as requests for a lkenee " amendment,"

appbcants properly can invde (and obtain a sectim il9a adpdicatory heanns relantig to the staff's dernial of) -

what nornally is considered as the di.:cronmary enfwement remedy of " suspension." In its post +5aaith Tew decismn imposing the anutnut con &ums now or issue, the Appeal Board suggested that a heensee secking rehef fnmi an antiuust cond6unn in na keense shouhl file a peutim with the NRC staff pursuant to 10 Cf.R.12.206 requestmg ht the suff msututs an enforcement type "show cause" hearing See Davis 84su, ALAlb560,10 NRC at 2%95, t.ieenseca dul not una Ous appmsdi; as a practical matter, however, the iesult spears to be the sans. Dett requests have resuhad in a staff ininatral adpdicatory pacceding being cmvmed in which these Inensees will be afforded an reputurdty to argue the merits of their pd.uma fa appropi 1 heensing action.

43 De other passible basis for ter juna&ction over this proceadmg anses fr<un the Commissim's Sowa 7 stas ntergnanon ht it has contmuma pohce power over ersdtions pmpedy plued on beennes, after [sectim) a 105(c) anuuvat revww." ClJ 7713,5 NRC at 1317, our concern on this sem, which we apparently shue l

widt the suff, we Tr.177,is ht the Conunission's secogniuon of its "pobcing" power was in the comcat of its authunty to #@rce exisung cmdnions, a cucumstance that may not encompass these licensecs' requests to be relieved of poviously imposed con &uons. Su also Cisw,r of 5munlie v. AEC, M1 F.2d 962,974 (D.C. Or.

(

1%9) (en banc) (AEA gives Commission continuing "pohce" power over heensecs' activines and that povides it wnh the atnhty to uke remedial acuan if a bcense is being used to restram trade). Nanetheless, in relying opnn i

AEA secnon 189a and 10 Cf.R.150.90 as ibe hemia fw our juns&cunn here, we leave open the queatian of the extet to which ALA secuon 105 provides a basis for Car, mission antitrust review aulsalumt to issuance of a facihty operstmg hcense.

U tn both its initial optiuon to the oE and CEl/rE heanng requests and its July sulylement, develed also references its earlier argument to the staff ht the issue preclusion doctrmes of res judicata and collateral estogyel as wcIl as the teneu of law of the case and laches bar consideruuon of the licensees

• heanns requests. See Geveland Peudm at 8; Ocveland supplement at 15-16. Desa nonjunsdnumal concerns are most appropriately presemed as smunds support;ng sunmary dtspmnion m Develand's favor. In presenting such argurnents, however, Oeveland should recogmac that, notwi6stamhng a similar docket designadun, this proceeding is separata and span from the carher Comnussion anutrust pocco6ngs regardmg Davts-nesse and Perry that resulted in the license con &tions now at issue, "See develand Petition at 8 9.

244

1 i

tion with applicant CEl for the sale of electricity to residential, commercial, and industrial customers in that area. According to Cleveland, by mandating that it have access to CEl's transmission facilities, the existing antitrust conditiofis give Cleveland access to power from sources other than CEl. Dis, in turn, has resulted in substantial cost savings that have enabled CPP to survive and coa-Linue as a viable competitor to CEl, Cleveland declares that this establishes that -

it is a direct beneficiary of the antitrust conditions at issue in this proceedmg and, as a consequence, dtat its interests will be dircelly and adversely affected if, as the applicants request, those conditions are suspended, Applicants and the Staff have expressed no quarrel with Cle', eland's analysis of its standing to participate in this proceeding." We find no reason to disagree either, Accordingly, Cleveland's intervention request is granted, I V.

AMP.OlllO PETITION TO INTERVENE Also requesting intervening party status in this proceeding is AMP-Ohio, in its July 3 petition, AMP-Ohio declares that it is a nonprofit corporation operated ort a cooperative basis for the purposes, among others, of generating, purchasing, acquiring, transmitting, and selling electric power and resources to,-

and promoting the interests of, the seventy-five (out of a total of eighty four)

Ohio municipal electrie utilities that are AMP-Ohio members. According to AMP-Ohio, in carrying out these purposes it has direct business dealings with all three licensees, AMP-Ohio also states that all of the municipal electric systems within the transmission service areas of OE and CEI/TE are AMP-Ohio members and thus are direct beneficiaries of the Perry and Davis-Besse license conditions whose continuing validity is at issue here," AMP-Ohio asserts that I

its direct business dealings with the three licensees as well as its status as a representative of its members establish its st:mding to intervene in accordance with section 2314(d)(1),

if made in a timely submission, AMP-Ohio's uncontroverted showing regard-ing its interest in this proceeding clearly would fulfill the requirements necessary to establish its standing to participate as a party, As both the licensees and the Staff assert in their responses to its interuntion request,*8 AMP-Ohio's petition "See oE Answer to Cleveland ogpositim at 2, CliLTE Anse to Cleveland oppminna at 2 na Staff Respmse to Closciand and Al.C 1% nuns at 1112.

• 6 See AMP-oluu NUtim at 24 47 AMP ohio also notes that it was an intervenor ist the literstrig ptuceedmg that resulwd in the twense ctmdities now under challenge, although it withdtcw p'ior to that proceedmg's condem See i.L st 2 ni "See Answer of loE] to l'ennon of [ AMP Ohio) for Lea <e to intervene (h!y it,1991) si 12 [heremafter oE Answer to AMPano Petsion). Arawer or (CLUIT.) to 1%nm of l AMP ohm] rar t, cave to intervene (July I8, r

l 1991) at 12 lbereinafter CEVTE Answer to AMP ohio Pentmn]; NRC suffs Rasponse to Pettian for leave to intmene IWJ by iAMP ohml(July 23,1991) at 68 [hennuher suft Response to AMP Ohio Petidon).

245

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was not timely filed. Although the notice of opportunity for hearing published -

on May I specified that any hearing or intervention trquests had to be filed on

~

or before May 31,4' AMP-Ohio's petition was not submitted until July 3, stwne 1

33 days late.

Paced with the plain langtuge of the May 1 notice, AMP-Ohio proffers the argument that the June 20. 1991 notice establishing this 1icerning Itaard somehow tolled the May 31 filing date specified in the notice of opportunity for hearing. 'this usertion is singularly unpersuasive. The June 20 notice, which simply repeated the wordirqt of the May I notice without prtwiding for any other filmg date, clearly hal no effect it;xui the May 31 deadline specified in the notice of oppon<mity for hearing." As a consequence, AMP Ohio's intervention petition was filed out of time.

Andcipating this result, in its petition AMP-Ohio addresses, albeit briefly, each of the factors in section 2.714(a)(1) that govern the admission of hte-filed intervention requests and declares that the balancing of these factors supports its admission." Neither the licensees nor the Staff contests this assettion."

Undertaking our own tuialysis of these factors, as section 2.714(a) mandates,--

it is apparent tlut the first factor --- good cause for the failuit to file on time

- does not wei;h in AMP-Ohio's favor. The only exetue AMP-Ohio offers t

for its dereliction in complying with the May 31 filing deadline (other than its already rejected argument that this was not the deadline) is that becatue it was 4

not served with the OE of CEl/TE hearing requests and Ows was unaware that a hearing had been requested, it seemed "Icintless" to intervene. This ignores.

the fact, which clearly was evident to Cleveland and AEC as reilected in their' timely requests, that any in'.ervention petnion supnuting the Staff's denial of the requated amendments would not become opemtive in the absence of a hearing request opposing the Staff's actior.. We cannot consider thi!, enuse good cause for missing the filing date so plainly specilled in the notice of opportunity for hearing.

Having faihd to provide good cause for iu late filing, AMP-Ohio must make a compelling showing regarding the other four factors.33 In this regard, it is apparent that factor two - the availabihty of other means to protect getitioner's interest - supports AMP-Ohio's participation in this proceeding. As pmiously d'3st syee,s 36.

593,414 CJ.R. 5 2105(d (mpest for hearug or in:crvenum dva tus rdal within utne stairut in Federal RegWar mmm or prqued la:ensing aains or sa.:h Ivarer sme at the Comnussion may spairyk M <e AMP. ohio 1%ticas at 4 n.2 Use., oli Answer to AMP olno l'exinen at 1; CE1/11 Answer to AalP.ohia Fwitm at 1; 5: aft Respunse to AMP ohio ihm at 810, 33 Su e s, Mm4mppi Pcwer A Ligh Co. (Grand Gulf f4tclear stsuon, I!niu 1 and 2). ALAB004.16 NRC '

1721 1730 0 91'4 246

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described," the distincthe nature of the Commission's authority to considct and address the validity of the antitrust conditions it imposed leads us la agree with l

AMP-Ohio that no other fomm or means now available can provide equivalent.

protection for its interest in seeing that de existing license conditions are maintained.

The third late-filed factor - the extent to which petitioner's puticipation will assist in developing a' sound record - also strongly supports the grant of l

AMP-Ohio's petition. AMP-Ohio represents that it already is well acquainted l

with the OE and CEl/II! applications, having filed extensive comments with the Staff in opposition to their license amendment requests No doubt, it can reasonably be expected to continue providing such input.

By the same token, its status as an entity that both does business directly with the three licensees and that represents numerous Ohio municipal electric companies establishes that its admission should be permitted under the fourth factor - the extent to which a petitioner's it terests will be represented by cristing parties. Cleveland, which is one of AMP-Ohio's members, has been granted intervenor status in this proceeding." Nonetheless, twause AMP. Ohio is engaged in business dealings with licensees on behalf of numerous Ohio municipal electric utilities, the interests it represents are more diverse than those t

of Cleveland, so as to merit separate representation.

Finally, the fifth factor - the extcat to which petitioner's participation will beruden the issues or delay the proceeding -- supports AMP-Ohio's admbsion

+

as well. Because this pmceeding is just beginning, we cannot foresee that AMP-Ohio's participation will be the cause of any delay. Nor can we conclude that its participation will broaden the issues being heard to any significant degree.

AMP-Ohio, like Cleveland states that its principal reason for intervention is to contest the legal and factual arguments made by licensees in favor of suspension of the existing license conditions. In these circumstances, this factor, which has previously twen denominated as "of immense importance in the overall balancing process,'" poses to barrier to the late admission of AMP-Ohio.

While AMP-Ohio thus has not shown good cause for its failure to tile its intervention petition within the time specihed in the May 1,1991 notice of.

opportunity for hearing, after considering its presentation relative to the other -

i four factors governing late-filed petitions we are convinced that compelling support exists for permitting its late intervention. Accordingly, AMP-Ohio's request to intervene in this proceeding is granted.

I l

Msee syra p 243.

38 34s syra pp. 2444s, "long tstalligking Cm (shoreham % clear Power Strasi, Unit 11 AtAB-743,18 NRC 387.402 (1P0).

247 I

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Y, AEC INTEltVI;NTION PETI'llON The AEC intersention petition presenu a different concern from that pisited i

by the AMP-Ohio request. While its May 30 petition clearly is timely filed, significant questions exist concerning AE(s standing to participate as a party intervenor in this proceeding. Both applicants and the Staff oppose the grant of AEC's petition for lack of standing.51 1

Iteferencing the prior untitmst review litio tion before this agency and the a

Umted States Court of Appeals for the Eleventh Circuit concerning the licensing of Alabama Power Company's (APC) Ftriey facility,

EC asserts that it is the explicit beneficiafy of the antitrust license condioons imposed by the Commission there that are "very similar and identical in remedial purpose to those conditions which are the subject of this proceeding,"" These conditions, AEC declares, are significant in maintaining its viability in its particular regional electric power market. Arguing that the Staff's evaluation in support of its denial of the OE and CEl/IT! amendment requests (and DOI's recommendation to take that action) rested in significant part on the Appeal floard and Eleventh Circuit decisions in the faricy proceeding, AEC professes its fear that success by the applicants in this proceeding could se:Ye as a precedent for vitiating the conditions in the Farley licenst This, AEC declares, establishes that it has a direct and substantial interest in the outcome of this proceeding.

AEClt!so maintains,in reply to the filings of applicants and the Staff opposing it intervention request, that neither the Staff nor DOJ can adequately represent l

its interests. This is so, AEC asserts, because cach has an obligation to serve l

the interest of the public that may not coincid: with protecting AEC's interests.

l Further, according to AEC, Cleveland cannot be counted on to protect AEC's interests becaase it is uncertain whether Cleveland can or will do so given the unfair burdens this would impose, Finally, AEC states that its participation will not encumber or delay this proceedmg because it does not plan to offer any evide e or cross examine any witnesses on matters relating to the economics of

'crry and Davis Desse nuclear plants, but merely will present its views on

,per legal principles to be applied to whatever facts regarding economics t forth by the ether parties.

,1C is most articulate in making its plea for intervention; nonetheless, ills to fulfdl the requirements nucessary to establish it has standing to see Answer or [oEi to Mum of 1AI Cl for Isaw na Intemne (June 14.1991) si 3-6 (herednafter oE Answer to Ar.C Numl; An,wer of [CEl/TE) ki Ntion of ( ALC] for les to intervene Oune 14,1991) at 2 6 (hercumfwr CELTE Amwer to AEC Nuon); sta!r Respmse to Clenland and AIC Ntiam at 13,14.

88 Alahrma Peer Co. Omerh M. l'erley Nuclear Plani, Uruts I and 2), LnlA77-24, 5 NRC 504 (1977) ar.d IM 77 41,5 NRC 1482 (1977L afJ at swdilled, ALAIM46,13 NRC 1027 (1981) grd. 692 F.241362 (11*

l Ca.1982). cert den.eJ,464 lis 816 (1983).

i M AFC Munn at 2.

248

.--,. a

2 i.urvene as a matter of right. Under the well recognized judicial standards for standing that are applicable in NRC adjudicatory proceedings,"it is apparent that AEC fails to inect the " injury in fact" test. AEC does not operate in the licens7es' rcographic market area oc have any other significant economic relationship w th licensecs or their dilect competitors, such as Cleveland," As such, the ouveme of this proceeding will have no apparent impact upon its fiscal /com[citive position, i.e., it w ill suffer no " injury in fict." Indeed, the only injury it might suffer - the establishment of a bad precedent -is the sort of

" generalized grievance" that would be sitared by any other utility in the country engaged in the generation, distribution, or sale of electricity in competition with a utibly subject to antitrust license conditions " That this asserted injury is imduly remote is demonstrated try the fact that, even if we agree with applicants about the continuing validity of the Perry and Davis Desse antitrust conditions, the application of our conclusions to the Parley plant would require that its licensees come forwed with information sufncient to warrant a reexamination of the particulars regarding that facility,65 We can readily sympathl7e with AEC's interest !n maintaining the integrity of the precepts established in the extensive administrative and judicial litigation over the Parley facility, in the end, however, its interest in doing so is one that, in the context of this proceeding, is too " academic" to chxtk it with standing.

AEC's request to intervene as of right must, therefore, be denied, There remains the question of the propriety of permitting discretionary intenention, In its polar l'chble Springs decision,$$ the Commission outlined a number of factors that are to guide us in making such a determination:

"See, e g, Flor.Aa Power A LagAt co. (rurkey Nat Wcht oenerating 1%t, Umis 3 and 4.\\ W.91 rl,34 NRC 155, t 87 (1991)(citing Meuopolaaa fason Co. (three Mde Island Nulear statum, Urut 11. CIJ BL25, la NRC 327 (1913), and Portlan,i General Eldesnc Co. (IWile sprungs Nateas Piara, Unas 1 and 21, CtJM27, 4 NRC 610 0 976)).

'I An ecmumic" interest in a facinny generally ts me suffwient to efford an mtervonos stenans in Canraission 1.censmg pnusedings regerding h6aith and safoV maners, See, e.g-, Psalac Serme Cc. of New flasiesAve (heabrook sisum, Unit 2), C1J 844,19 NRC 975,978 0984). In the sentut or an antitrusttrlated paceedtog, however, sudt antmsts take center stage; andad, they are matters that fall squarely withb the" arms or intercats*

that the Cmgmss sought to prmot, as mNc4 in AIA satum 105. See Deirces Edeva Co. (Enrico I enni Atomic 1%er Plant, Unit 2), A!AB.470,7 NRC 473,474 75 0975).

635ee Afermedian E4.ees Co. trw htae taland Nulcar Station Unit 1), Ct.i R.25,18 NRC 327,332M 0983); Trenraw leur lac.,012 TI 24,6 NRC 525,5310977).

• 3 fee Dru ef,le is!.=d. CU-83-25,18 NRC at 333. Tramwleur, fac., CU 774,6 NRC at s313A See al.m Ceweh.wed l'4see Co. et New fort Ond nn Nnt, Umsa 1,2, and 3),. Als104, s NRc 1,54 9976)

(;ud ) diai NRC hY and lleensmg hard wd1 take gxanum advene tu inievesi 4 otday with peuung oppiu em f or unswcuni perrmt for auther r441ity is insanictren to estaWsts b stand #g 's biervenn in the pmceedmg).

bth 'wmneen and the Stafr oppm ducretamary intervention tur AlI'. Ses al Answer to ALC Peacemi at 7 9. CL1/IE Answer to Al?C Ihun at tr8, Tt. 3 t "See Perilaal Generol finsna Cs. UWde Spnngs Nctur 1%nt, l' nits 1 sta! if), CtJ427,4 NRC tuo, '14 09M).

249' I

M

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4 (a) Weightng in fawn of aUuwing interv t

..e -

e (1) & exterd to whkh de petni, swr's panidpatwn snay trasanatJy t< capuM to assi4 in desciming a sound remed.

(2) The n.um, and catent of sie petitiorrr4 pimeriy, financial, a wher intercit in th, psocecJing.

(3) %c put,nble effect of arry order whkh snay le miese.J in the proceeding on the petithsier's intered.

(b) Weighin,; against allowirig intervention -

(44 he asailabihty of other rneans whereby petitarwr4 interest will be pt(tuted.

($) De catcra to whhh the petitkwier's interest wiD lic represented by esisting parties.

(6) De cuent to whkh peutimer's participation will inappropriately broaden or delay the proceeding, Looking to the first and (as the Commission has made clear") primary consideration, AEC's uncontroverted representations regarding its two decades of participation in the Tarley litigation make it apparent that, when it comes to Commission antitrust review matters, AEC is a campaign-hardened vetemn.

j We thus have little doubt that it is particularly well suited to provide a seasoned '

perspective on the central legal issue concerning the scope of.AEA section 105 i

that, as we descrite more fully frifra, the parties are attempting to trame in this proceeding. 'Ihis factor strongly supports discretionary intervention.

Pactors two and three also weigh in favor of discretionary intervention.

Although AEC's interests are insufficient to establish the " injury in fact" necessary to nfford it standing, they certainly are within the " zone of interests" relevant to this proceeding.67 Further, while the possible effect of any order we--

may enter in this proceeding is, as we have already indicated, too speculative to provide AEC with standing, its concerns about the ramifications ut this proceeding as a "casc of first impression" are not totally unfounded, particularly

(

if this litigation culminates in broad legal rulings by the Commission coicerning the scope of AEA section 105, in contrast, factors four and five identified by the Commission in its Pebble Springs decision weigh against permissive intervention here, As licansecs' competitors, Cleveland and AMP Ohio appear to have interests similar to those AEC is trying to protect vis a vis Alt and its Farley facility, No doubt Cleveland

)

and AMP-Ohio will defend those interests vigorously. Further, there apparently E

are other means available to AEC to protect its interest in maintaining the Parley -

antitrust conditions. If APC wants relief such as that sought by applicants here, it likewise will have to request agency licensing action regarding the antitrust conditions in the Parley operating license, At that point, AEC can participate by

(.

5,4 id at 617. Su sta Fems A1 AB-470,7 NRC at 47s n.2; 7,wnes Val!,y AAmry (waus Bar Nuclear 66 1%nt,llana 1 and 2), Ai.AB.413, s NRC 1418,1422 (1977).

• ?su se,pra pote 61.

250 I

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seeking to intervene in the adjudicatory proceeding that mtst be offered relative to such a license amendment request?

Ultimately, however, these negative considerations are substantially offset by factor six, AEC has represented that it wishes only to ptrticippe on the issues put forth by other panics and then oniy to the extent et poviding, legal argtiments rather thai, evidentiary presentations, Accordingly, its participation here will not inappropriately broaden or delay this proceeding, After carefully reviewing these factors, particularly AEC's expenence in AEA antitrust matters and its seeming abihty to make a substantial contribution to the development of a sound legal record in this proceeding, we conclude in this instance that the balance weighs in favor of perinitting AEC to tecome an intervening party, We do, however, make its participation subject to the restrictions it has represented it will accept, i.e., AEC will r:ot le permitted to offer any evidence or to cross examine any witnesses on matters relating to the economics of the peny and Davis Besse facihties The same is true with respect to the OE issues re,,arding purported decisionmaker bias and prejudgment.

VI, Ill100K PAltK INTEltVENTION PETITIGN Assening that it recently initiated a study of the feasibility of establishing a municipd ekretric system within liceruee CEl's existing electrical service area, on August 8 Brook Park filed a petition seeking leave to intervene in this proceeding, Under the terms of the May 1991 notice of opportunity Dr a hearing, Brook Park's submission is over 2 months out of time, in its initial intervention petition, however, Brook Park did not address the impact of this tardiners, Pursuant to our August 16,1991 directive to discuss the matter, in a Septernber 4 supplement to its petition Dnuk Park argues that a balancing of the section 2.714(a) factors governing the admission of late-filed intervention petitions suppons its intervention in this instance." In their responses to the petition and the supplement, both the licensees and the Staff urge that Brook Park's petition be denied because it lacks standing and because a balancing of the section 2.714(a) <tandants governing late intervention do not support its admission.'8 "In fut. U the f arley twermee m.tken a request simaar to that or apphcanu here, by partwipaug as en kmenenmg pany in thu prwdng. Al.C mev becane a besict target for issue prwiusum (t e., res Ndwam arid entl4teral estolyc!) dams tha..,f it playal no into in this pinceedmg "Su (HrmA Park) supplement to 1%tian for 14 ave to latervene (Sept. 4,1991) at 3 6.

70See Answer or (Olil to (Brook Part] IWtum for l eave to latervene (sco 16.1991) at 2 9; Anamer of

[CIil/lll to {Dronk Park) E%tum for 14 ave to intervene (Sett 16,1990 at 7 7; NRC staff's Answer to Petition of [itmok Par's] for leave to Intervene (Aug. 28,1990 e 3-7; NRC starf's Response to [Hruok Parkl Lupplement l

to Peuuon br taave to Intervene (Segt 16,1991) at 4-9.

l l

251 1

We agree dat 11rmk Perk lacks standmg to intervene bese, a circumstmco that

)

arises from its failure to show any " injury in f act." According to litook Park, its intervention b necessary to protect its intese$t in acccu to the interconnection, who!csale power Sale, and wheeling scivices now available from CEI under the esisting antitrust conditions in the perry facility's (7:ating lkense. Yet, it li apparent thal eny injury llrook Park purportedly niight sulfer to a consequence of thh proceeding b entitely hypothetical until h reaches its decision actually to institute a munleipal clecifical fystem. As r amsel for llrook liuk advhed us during the ptcheating ctvifertace, such a de.crtnination will not come, et the ceiliest, unul Noveinter of this,vear." At Otat tinte, tirook Park citirens will wtc on whtdwt to ainend the municipality's chartet to estabhsh an electrical distribution systern. If they do so, lirtek huk's stake in this jvoceeding dien will cease to le provisional and at will become subject to the same concrete injury in fact that could trette to Cleveland or AMP. Ohio as a result of a determination in this proculing in favor (,f licensees.n At present, howeger, the abstract, hrpothetical nature of the injury to prm Park is insuffielent to establish its standing to intervene in this proceeding, tirook Park's lack of blandlag is dbposillve of its request for late intervention at of right. We note, nonetheless. Out it also is questionable whether, even if it h.id standing, Brook Part's t.=9nt snowing wot, he suf0clent to mcel the standards for late-filed intervt,.an. Critical in this legard is its failure to make an adequr inonstration ecgarding the third late Illed factor - Die extent it, which peb

's lurticipation will auist in developing a sound record. Ilrook l' ail. admita it had no real interest in this proceeding prior to June 25,1991 when the mt.

pal council paned tm ordinance authotiring a study of whethes lituck Park shoual etabibh a pawcr system. Its familiarity widi the OE and CEi/I'E applications thus cannot match that of AMP Ohio, which participated in the admmistrative review process before the Staff. Moreover, as compared to AEC, litook link has made no particular showing about the legal or technical esperience it might bring to this proceeding, liased upon its present showing, therefore, a bahuicing of the factors set forth in section 2.714(a) does not support late interverthm."

U $## Tt. 4743,45 49.

"The c<mdiumai nstare of firm 4 P.Cs praem umest is runha highhshiaJ by 04 rect d.si e pmms er.ans 40 b8We Gl# Clod (>rt@ tit Mtshhah $ UWuMP8I SI66thf Q41rM by OrdtWK9 teiled IM I8d Or Olmgh er6nh80v9 vaim $es it es.

"her Ow some rumw, e, cmetale 9:si sacretuary nmermtum la nin egynynaw fa lind 1%rt.

252 4

l I

Vll. 150.1 INVOLNl'. MINI' i

'lhe hnal"intenention"inue that we must tonfront involves the partkijution l

of the Justne Dep;utment. In its July 22 hhng, invoking AllA sc4 tion 10$c($),

DOJ dalares that it intends to partkipate in thb proceeding. In an anutrust pngceding relating to a commetelal Iv*ct teactor toratturtion permit (v operating license application, under dat provision its auduvity to do so is I

unquertionable. As we have aircady esplained, however, that sc4ilon it not the jurbdictional basis upon uhlch our cornideration of the licensecs' applicatiorn j

rests." instead, applicants and those secking intervention are before us as in any other license amendment proceeding. Whether to permit DOJ pardelpation hese must, thetefore, be governed by the standants applient,le to intervention in such procce41ings, DOJ's status as a statutory party in Al!A tiection 105e andtrust praccdings, l

locluding that whkh resulted in the licerne conditions now undet attack, tellects a t'ongressional judgment about IX)J's role as a princi ui over>ccr and enforcer t

of the ner. rust laws. In light of its function, its t.tuxling to participd > in Oils proceeding la apparent. Nonethehss, as with the AMP. Ohio and litook I' ark '

+

requests for intenening party status, TX)J's Jt,

• 22 filing is untimely. We have no difficuhy, however, in concluding that it meets the standards for late bled intervention.

DOJ's failure to seek timely intervention undoubtedly reflects what even the Staff concedes is the uncertain tote of section 10$c as the jurisdictiotal bads for this proceeding" In these circunntances, this provides a substantial measure of good cause for its late filing. In addition, while DOJ's authority to institute judicial antitrust proceedings provides it with access to other forums l

Out can imixne antitrust conditions, as we observed with rcrard to AMP. Ohio,"

this agency's role in crafting the condidons at issue also renders it a singular arena for contesting (and defending) their continuing validity, Undoubtedly, the Department'. :xpertise and experience both in terms of antitrust law generally and the circumstances of this case ertnblish dat its ability to assist in developing a sound record is signifkant. Further, although the "public interest" championed by IX)J to some degree parallels that represented by the Staff, it is not coextensive to a degree that weighs against intervention. As DOJ counsel reminded us at the prehearing confennee," as the legal spokesman for die federal povernment as a whole, the De'urtment's perspective is not necessarily the same n that of the StafI. l'inally,ir view of LX)J's repreuntation that it now t

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contemplates its lutdcipition hLely will be at a " minimal" level, we do suit tuitici}ute diat its particiguuon will broaden the issues or delay the proceeding to any appreciable degree. We thus conclude that DOJ sluiuld be afforded intenening puty status as well.

Ylli. ISSUES /CONTI:N'llONS AND IUltillEli PitOCEl:lilNGS Ilaving detef mined that we have jurisdiction to entertain die OE and CEl/112 huiring petiuons arnt that these applicants. Cleveland, AMP Ohio, AECs DOJ, nrul the Staff (by operadon of agency regulations) should te pirties to this pniceeding, we tot turri to the snatter of the issues to be litigated. In10 ally, applicants both speelfied three " issues" regarding die validity of the antitrust liccolse conditions, in additko. OE set forth two " issues" regarding the impact on this procceding of what it alleged were impnipriedes involving congressional contacts with the NRC and DOJ staffs and a predisposition on the part of-those staffs to deny the licensecs' applications, Subsequently, OB and CEl/ill esch provided an additional listing duit further outlines their challenges," They now specify four " legal" issues and one " factual" issue that they asfiert may require resolution regarding the antitrust conditions in the lYrry and Davis.

llesse operating licenses, At the same utne, OE designates two additional

" factual" issues.luestioning the weight to be accorded the NRC and DOJ staff determinations relative to the OE and CEl/111 applicatkuin because of alleged congreninnal interference and prejudgment.H Among the intervenors, Cleveland has set forth several"contendons" for lit.

igation in this proceeding, rnost of which relate to the jurisdictional arguments 7:An 1r. 21,2R D Ase teuer inen J hlorphy to ticensing fliard (July 25,1991) at 2, lettet tren o. Oiarmdr to t.transing therd Ouly 25,1991), end

'U lly way or summary, n rune that omhtants' fast legal istuo would require est we detesmirw based an s

die stagnismn that the Dms liesse and parry facihuse' actual anns are higtwa den mamuclear pisaw e4wts, it due fanhues ofrer bienneca a "orqwtiucc advemegt if us ansett to the fire legal issus is rin," den their sesond legal insas mdd impire a deterrmnation wheuws lanwees'srvrwrship shares in Se Dave Ileann and pary fooliusa can, in usurdants with A1.A 6:4em 10sc, *prete or visuusin a sousuun insmaaiert with de anutrust laws" so es to authonse the N)tC to impse or retam unne a.iutnut tunne sendiuore Also resung un the esswnpuun u.at Se suual resWty <<eis for Dwis 160ue and 1%rry are higher than pie custa or periuolear peer, smhcanu' thard legal lasus pues the quantion miether the imputurm nr manum of enhcants' onuuvat bconae cmdiuona ituinuiutes e damal ur apal p<seruan and due ptwess umler de rifth amendment to de United Matos Cmstituum ikenwea' founh legal tasuo utsuld invah, a dotartionathm ehmt Ow sp;wtynate buis rar seiertainmg lecilny "steu" se en to rnake uw enmpanaan for purpues of legst issues uns and three. Ptnally,.a the event we tr.ake a findmg in thed (me regershng 0,o first legal tssue, hensees ensintaui in their rtral rectus1 iuue dat n shmid sindenake e fanual iruquiry imo whether Os resetor fenhues'sciuol caste are indeed higher than twinuvicar power ansts.

'l The test or Olve two *ractual suues" taisms bias and prejudgment ensima assinsi de NRC stafr and (KV are set tordi e$a at nme li 254

(

i i

l i

we have already rejected." On die odier hand, AMP Oh;o, Al:C, aint IX)J have indicated $1mply that they wish to partidpate 8,tn sarying dcgices) whh teget to all inues and $ubjects raised in the OE and CEl/lH hearing requests.

i At the pidwarmg tonfcreoce, applicant OE tequested that if we admitted l

its bias / predisposition issues, we permit it to undert.ike discovery from both the Staff and DOJ. In contrast, none of the panics now sects dhcovery on the j

inues put forth iegarding the substantive validity of the perry and Davis llesse j

i j

antitrust condiuons. Instead, f,7 rea< ions we will descrite in intre detail below, by way of sunnnary dislosition they want us to resolve a central, and potentially conclusive, legal ques 00n.

i A.

In soning out the admissibility of de panies' issues and contendons, we deal first (ns we did at the ptchearing conference) with applicant OE's "inueti" i

relating to alleEed congresshvial interference with the initial decisiontnaking Process and prejudgment reladte to its amendment application. With these luctual issues, OB yuesdont wheder the impartiahty of either the NRC or DOJ staffs was compromised by 1988 congressional activities relating to the Perry antitrust conditions and whether the NRC and DOJ staffs were improperly predisposed to deny its amendmeet application. A posidve finding in either instance, OE alleges, would require that we give no weight to the Staff's and DOJ's negative secommetu!aliom regarding its application."

i lloth the Staff and DOJ urge that we dismlu the$c inues. In its written-response to the OB hearing requeu, the Staff made no specific challenge i

to the admission of diese issues other than to state that they should not be comidered because they do not raise " substantive issues.** During the prehearing conference, however, the Stalf claborated on this argument, ancning that the contentions should he dismissed because (1) the Statf is simply a party j

like any other before the lloard whose legal arguments and evidence can be assessed on their merits and (2) de only tactual support cited by applicant, i.e.,

U ln sta 14y 1991 suwlammt, CleveJand does pu, furth a tunenum challengirst ce applicants' f actual euettim l

that shenged cirnansunces rusi regardtos U,e tamgeouve (4mt advaiange ofte ded by the Perry and Devts-ncase t

I fenbusa See Cleveland sugylastient si Ift 83 1hme unues are set fonh in Die encheurs to na luty 15 letter ki the it.iard as follows, Dd the 1958 legislauss pinemal by Senauw ilomard M. Mcuenhaiam primdtng that '{t]he Nalear kcgdavy Conynisum shall ma simpend or nu.dtfy the applaatim of any emurust pr=6sinn smtained e

in the Ibry oper.img trene No. Nif45, as emh pnn tuon applies to any leensee of the INny Naisar -

Powerp!.nt, Unit 1 " the debate uerem la d.e senate se Match 29,1988, as reflected in de Congrammnal Reowd of that date, pp s 323749, and any reisted essnmunicauuns benoem the NRC staff and the irganlauwe twemh. c<anprtwmee de octaal an spiems impart.abiy ed the starts or the NkC and the 1101 in connetum wnh thur consMenum M oli's ambcatwn and, if so, ahnuld the licensing lioard and um Nalcar keguistury Convntamewse give no weight to the tenetunendsums ad ue NkC and Dol statist Wyn We NRC and Inj staffs predapmed to deny oi?s smiastan, as sut.gasted by seriatar L nennen Mmuon's statsman in that Congrammest Renud.134 Cong kes, a 3235,3:39 (Manh 29 1%A), tegudmg a "sta ng rumiv" that "pe NRC has indnsied that pey hm em 6nicasim af amnweg Gua oppia aum " and. 4r an, ahmid the Ikensing therd and the Nulcar Regulauvy Canynasusten gne rw weight to de rotunmendauorm of the NkC and DOJ stans?

'4 See NRC stafr's Reapmna to kaquests fut lleanng l'iled by (Oct fri.), and [tTit (Jone 2n,1991) at 7 5 5

ee ~

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de senatorial statements in the Congicasional Record, provide un msufficient factu.il Irni; to merit Iurthes consideration of Oli's allegations. Ibr its part, DOJ opposes any further explotathm of applicant's claims liccause Oli has failed to provide any factual support fot its charges of innpioper contacts betweesi DOJ and the Congress or DO) prejudgment regarding Oli's application.

Under whateser guise the Stali anay have acted in the first instance when it-issued ti denial of the OE application, it is now befo.re us as a litigant whose siews are to be accorded the kame status as those of any other party and whose biases can be scrutint/ed accordingly." In anertic.g that no further consideration should be given to applicant's allegations, Staff contends that a distincLkm exists between charges of legislative interQtence and prejudgment relating to legtd (as oppovd to factaal) issues and maintains t'lat, because a determination almut certain legal questions is all Otat is necessary to resolve diis litigation, we need give no fulther consideration to applicant'h bias claims." Staff's position in this regard is supported by at least one judicial deciskm holding that in perfosming a review of an agency decision allegedly subject to bias, including improper legislative influence, the independent auessment that an adjudicatory decisionmates (such as this thiard) renders regarding the merits of the parties' legal positions will rectify any earlier irnpropriety." *lhls audiority is persuasive, At this juncture, however, we are unable to pari.e the various controvessics between the parties into the next categories this analysis requires widi a degree of certainly sulficient to convince us that direr, hold dismissal of these allegations is appmpriate.

As to the question of the f actual foundation for applicant's bias and prejudg-rnent issues, we find that relative to the Stal'f they contain the barc minimum of factual support sulficient to warrant their ada.ilssion for further titlyation, Appil-cant concedes that the floor statements of Senators Mettenhaum and Johnston reported in the Congres.ilonal Rcrord are the only factual prcof it now has to support its bias and predisposition allegations." Nonetheless, when viewed -

in a light mon favorable to applicant 011/' they evidence legislative contacts with the Staff relating to the merits of its review of Oic OR applicathm, Given the Staff's initial role in this instance as a decisionmaker (alheit administrative H,,,,,, g,[,, f.mos, A1All 341, 3 NkC si f,. Sowhesa Cs4/ gens larva Co. (hn Omdre Nuclear y

oenmtmg kauon, Un a 3 and h, At AH 2fA,8 NHC 30,199 097s).

Sev Ts 93 95.

"$ae C64 od Ccer e / l'C. sfd F.2J Sil,611 12 pd Cat.1977), cert. d<ased. 434 kl.s. IN2 0978)-

"5,e h. 90 ua SAegera to uis pelwmg tmferm e, apphant pnivuled us wnh open or Men h 1,1958 leurr inen hautor Masenbaum to the snafr setung tonh b views on of 's art wauist u wc!! as senas daha l

and uw ruial wranet or tbs suff's ect y tenet. See imier from M spoons no I katuing therd Sep. 24.1941),

l esuls 14. we agece wah alt card's snarAstrient oet 're 72) uiet Wiese dominaits signained invra use egeric/s 7

h l%he Ikunwnt bom provule tram sap [mrt rat as alkgsunna.

"$<e Arnena 1%ht.c $<rvue Co 0%1o Verde Nwlear omistates swuun, tlans I,2, and 3), CIJ 9111,34 NRC 149,151 t1991).

256 o

1 e

father than aJJudicatory) tharred with acting in accordance with the public interest, on the tusis of this showing we are unwithng to countenance thfeshold disniinal of these allegations as they selate to the Stall, in contf ast, appheant has plot ided nothing to support its allegations that there was impfoper congfessional contact or pfejudgment relating to IXM's recom-mendations on the Oli license application, then under the nafe hbefat pleading standafds applicable to applicant's "inues "'8 we cannot sanchon the adminion of questions thallenging the integfity of the DOJ decisional process based on nothing mofe than speculation. Accofdingly, furthef litigation legafding these i sues as specified in applicant OB's July 25 statement will tie limital solely to the questions of congrenional intes ference with and prejudgment on the part of the NRC Stalf,"

We admit these issues with some trepidation. Judklal authofity concef ning leghlative intefference recognites the impoft:uice of congressional oversight of administrative agencies," Indeed, to accommodate congfessional oversight while at the same time avoiding improper ex pafte communicalions with the "Jmkul do inneis regarding legisisuve buerferawe in the adreunistraine fmstas under the antalle,d hlhAery s

dortniw usmod afiar the senunal d,wiaum of the thuwd states Court of Appala (to the l'afth Oremt in hittlwy Ce e 17C, M4 lu?d 932 (5th Car,1%fi)) suggest tha the slure tog notespry to sonion a fmdmg of Ingwper imcriereme unes deperiding im ute nature of Uw detismnmaker's ents In pie (4wussi af a hadmal or epiasi.

Judinal pu6 ann, tbs "appesience ad inas se jwomautt" may be sufficeni, while in enks arnmuterwee e almeing a4 artusf inflomte mer be nesentary DC /edershoe e/ Cmc Ass'sw e. Volpe,459 is2J 1231,1246 47 (D C, Or ), rest demed, 40$ ll $ 1030 (1972). See alm Town e/ Oseatenws t Aw isbW, M li24141, lli (2d Or,144) A%@t apphtsid 01 has argund to the umuary, ne 1r, 74-75, suff's sAtibtaustive review daarmansum miab=e to ha egyksuun dure sue fell truo de *sdjudiceney' taiegory-Amw g other things, restrwume endrinung adshe-esmed, es parts tvemu, are of de hallenade of Judwis) docuunnwking, ne 3.ene Club e. Cesde,657 IL2d 208,400 (D C C4r 1981), namungly wm not anikahls la usat entew. As a mutter of paky, kaff s3ften emducts manmge estattrig to its egykstum teview funttmn in reAlac, see 43 i ed Ot g. 2BJJS8 (1978), but we are tus pere of my statutory er segulatary requiremera that 6 do on. Are 10 t

Cr R. 5 2.lQe) (durma kaff edmmisusuw enww of art opt uatim,64 anay quest any sww tuny in c4mfor d

with li infiv nelly). $n she 6f $ 2 4 (under defiruum of Tennmusmn adjudnausy anployer" rehun in es pane end sepsisuon 44 funcums tules (10 C ILR ll1784.781), kaff eenployees are &mluded m)y if s;ecirwelly designated)

H 1he staff namta na, na Tt 6142, and we ogvis that en applaant am&lns e brarms fulhen,g 4 staff daust i

of its reyst for inenung actum is ma subet to de pleadmg sterdents appluehta to buanning parum umiar 10 Cl R 8 2 714(b) A rhcome in audi circumstanue must utentify We inques they wah la hugeie, wkdi mast i

be utNn the scopo a f the heerms se sgentied in de hearing entwe.

" As ednutted, Uwrefurs, thcae laaues toad es follows' thd the 1918 legislahn propmal by $matre llaward M Mctraribaian prwidang that "lths hiusicai keguisimy Ciermanum shall not simpond or moddy the oppke6m of my snutrust fenuum censinal m pw Ivery tiensimg twavaa No. Npl438, es su6h pnwimmn opphs to any twermee of the Ibery Nuclear lbeerpient, ti ut 1," um debsw there,m in uw senate on Mardi 29,1988, as reflettad in Om Cmgresemal t

Remd of that das pp s 3237 4 9, and uy related enmurmatmns beween uw MtC nan and the leg,slauw brandi, nen na sumaratant 44 ol.pnmune the adual or elvarent imlertiship id the NRC staff in tonnectim mth e egykaunn end, tf so, ahmld Os l Acnsus Itood and the Nunear Regulamry Cununissuewn give no wought to de mummenostmns of the NRC naff 7 Wes 0,e NkC starf perhapmed to deny ol?e appiwatum, si suggesisai by Senaue 1 liamiti lensum's sinmmnt us the Curresunewl Rm; sd,1s4 Cmg kso s 3258,3239 (Manh 29,1948), segudme a

" sums nunor" uwt 'W N3% has iridwsw41 that dity have sui truennion 44 eryttnys Wiis e,rylicannii,"

and, tf na, should thin themeng thatd and the Nutteet keguluory Camvmsanmus give no weigla tu pis seananmdatmns of the NRC naff?

"See, e t, Cur Oef Cey, %) l' 2d at 610 257

i

('ommluion itself, the Staff often serses as die contact for congressional l

inga. ries negarding contested licensing cases. So as not to permit Stall atam t

uthlertaken as part of this legitirnate sole to be used as a pretext for Ivobing the St.iff's decisional praess generally, we rnust give particultr heed to Staff's j

expressed concerm about the scope of any discovery sought by applicant.

'therefore, as we indicated at the prehearing conference,** at present we will permit applicant to undertake one round of discovery, by way of intettogatories."

Any further discovery by applicant, including depositions, can be conducted only l

with leave of the lloard.

D. *lhere remains the question of the admission of substantive issues and contentions regarding the applicants' amendment applications to abroCate the antitrust conditions in the perry and Davis Ilesse operating licemes. As we hrive Irnlicated previously, several parties have specified legal and factual issues they wish to liti ate in attacking or defending the Staff's administrative determination E

that the licemees' apphcations should be denied 5 During the parties' prehearing conference presentations, however, it became apparetit they were in agreement that there is a central or " bedrock" legal luuo they all desire to have resolved by us as an initial matter." This issue concerns the signilicance of facility cmts as the basis for the imposition of the antitrust cotiditions at issue." Although they were unable to do su during the course of the prehearing conference, the parties have represented that within 30 days following the luuance of our prehearing order, they will be able to provide a joint formulation of this issue, 'Ihereafter.

they will address the merits of this itsue by way of summary disposition motions, litrther, as presented by the parties, it would nppar that if, based upon thesc filings, we accept the applicants' legal position that facility costs are the linchpin for the antitrust lleense conditions at issue, we then would have to conduct an evidenthiry hearing to determine whether die applicants are correct in their assertion that the perry and Davis llesse facility costs are, in fact, higher 50 as to warrant the nullification of those conditions, On the other hand, if we agree with the legal lmilion of the Staff, DOJ, and the intervenors that these costs "See Tr lis.

U ln renswwe to our preluntnary ruhng at the pelaaring timtestue, apptkent aan sepernhar 20 servul die Biaft e nh a ut of insurngstorwt in nowJae with 10 C.FA t 2320(h)(r)(u), me rmd dat us answen to argh ant's

)

anternigmarus are, en a general matics, neiessary to e pn per destion in Gus pentadtr 3 and that, as they invuhe

- start senitects e nh cmpessmnal persvuwl, the answers are not teausuhly obtamshle rnen any inhet snurce. or twise, unJet sestmn ?JMh)(7)(d ll.e stafr as tree to ecch a pneectivs under ander munn 21*Mr) o nh regard to any pertuutar inietroasta'y 48 r6ad8 thoctanuble.

• • $re airre pp 2M si "See1r 2nt 20 ln thant app l4cs'am, Clmtrlf iniually 985utid dial Susjedntisert ut die Icfry and Dens acase $ntitrust tKaite rundaims sisp omlJ be appropnate bnauw the tanpeutne enurmmma and Omar compeuuve beiheviar had dienscJ fnen what was round tu eats at the ume the enndnavu were impsed. See Tr 1%61 thenses ol; in las spptasti.m tArm tw rnade tornetwo to stianges in Ow t<enpouuve clinwie in its servue eres See 1r. Is2 54

- lictore us,liowever, nother CINrE ror 00 rehen upm so6h sarnenstantes se a hesis ris the rehe.r tougla, $ee Ts 154 ss,161 i

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are not deterfninathe of the continuing valkhty of the liceme conditions, thme i

p:uties would prevad and this proceeding would lie conduded at this incl.

in these cifcumstances, we find the parties' prolosal reasonable," Accord.

l ingly, within 30 days ffom the date of service of this order ""the [urtles are to s

i file n joint statement of the " bedrock" legal issue (or hsues) upon which they seek a ruling "3 Thereafter, tio later than 60 days from the date the joint luue i

l st lefnent is filed,* applicants are to file for Summary disposition regarding that issue,*' Cross.tnotions for summary disp (nition and/or fesponses to applicant 1' i

tummary disposition motion ifom the Staff and the intervening parties, indeding

)

IXV, should be flied within 60 days af:et the Sotimbslon of the applicants' rtio-i.

l tion. Applicants may file a response to $taff or intervenor sumumry disposition motions unfor a reply to those parties' tesponses to their summary disposition t

motion within 45 days after the last Staff or intervenor cross rnotion/lesponse is hied. Requests for oral argurnent on any disgosithe modon should be inade in a party's initial motion or resionsive filing.

i t

fbr the foregoing reasom,it is, this seventh day of October 1991, OltDERED that:

1. The hearing petitions of OE and CEl#E are granted and they are admitted as parties to thh proceedmg.

"suusm 2 714HI) of 10 Cl k dahna 0,at an 6nicrvamt tan pruciper es a pny twily if a seu forth at kast asle 44mmuni that sticets die pleadirg requ ramens in serum 1714(b)(b %ble intervermre other than Gevriend have run pasented any staternen ed spatrie inum labeled Notentuwm? dwy have snade at cleaf that their trueneanum in pas prwr44ng as intended to supput de swrl's Aptd 1991 semrusuen, dettemmsuon La deriy om spplaants' amendsmud request in Lives c6rcumstances, og Imd their stusments in Oda regard mmameUp surfwient to qualJy as contaanuma thallengmg de agplatants' aanerbteis caswernarig the %dpW legal Lasus of l

W.e s.wi.fnaine s4 faculiy custa es a bus for the 5%rry and tievis ILnis enutrust sum &tums. Junher. in agreema I

in tunive du enerstrhtng le st issue fire, we see no need tiresendy to rule set uw softwisicy ed the parues' u

6uuss and r<anenums relaung to the pges ermmoistusi d puse temia fat sadi fadlity i

in add um, siduasgh serunn 1714MI) mnemplates that pnws wiD fornslate dieu assues se contenuera pnot to de prehnanns 44mferase. Pi this instance stewt ehronte would nm timtrary to ens d 0.e pnnengal l

Juiufnuore Ior dm rule - the esmeerieunn d a@udwaiwy renomes by avoidma parameal posuauan d issuca With use pna' eppreit agreennern that there is a %drud" legal tasue (<e suuss) 6n this pmsed.r:g, ne syre suae 97, considessums or htwaal summiy suggest that athet omri agendtng tune sittenpung to somhale effama stalammus et that inue, we sunply strurd the prues en ed&uunst cryonunley to ernve at e pirn formulatum or the spesum.

% Adi smpoet to this filtng, die piwitumn of 10 Cl 14 l1710 pawidirig ed&thmal smw fie acum based opei the nwood ur acrvue ont m4 spikshis-

• if det perbes find they are unable to teach an egmanent regstang s pim; issue staternant, in hou Owsed they -

Wus.ld pnmde dia linud wah o jous status repet in stuch dwy shmid andwaw wheAer ruruier e.rfuna to ornve et e Emt issue steemma tre Mely to be fruhful and how tnuth ed&tional ume dicy wiu twed W in iakubteg u.e date use e hkh applu ents must rue fw eenmary dapuitum, ce penstons or seanm 2 710 pt.mdmg aJditunts) ume bawd upm dw medad tir amate are sus rpphtable. harther, given dis gonenma time Imuis effonkd die pruce fm the pepaipunn or thou pleadmgt, the lluard will run has wnh feyw un omtuma im estensen d uma

• With the euertmn erits umirig povtsmns 40 sunenary dapunum nmunns amat mcply a uh the tapuomerns or 10 Cl H I 2 749. AdC,ionally, en light d der aseming unity of interests m %dnW leget issues. see syre nas 79,in the shoeme d a pnar shownrig eatabbahmg why dwy c.anmd do so, wg eywt aD apphrants (i t oli and civil) to fue e spiele,)*nt dupume omsnm relaung to thm quesuius.

239-i i

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i 2.

The intenention petitions of Cicseland, Ah1P-Ohio, AEC, and DOJ are

.I graned und they are admitted as parties to this prweeding.

i

3. The intervention petition of Ilrook I'.uk is denied.

i 4.

As they relate to the NitC Staff, the two issues regarding bias resultin; i

frten congressional interference and predisposition specified by ap;iheant OE in l

its July 25,1991 prolosed issues staternent are admitted into this poccaling.

Insofar as they relate to DOJ, those issues are rejected. Applicant it allowed i

to undertate one round of discovery relating to those issues by rneans of f

interrogatories to the Staff. Any further di$covery by applicant on those inues j

can be undertaken only with leave of the Board.

Within 30 days from the date of service of this order, the parties are to hie a joint statement setting forth their formulatkin of the central legal issue j

(or issues) for resolution relative to the snerits of licensecs' applications to amend the Perry and Davis.Desse operating flcenses by suspending their antitrus!

conditions. Thereaf ter, the parties rnay seek Summary dirposition regarding that inue in accordance with the schedule speci6ed in this order.

6.

In acconlance with the provisions of_10 C.F.R. 6 2.714a(a), as it rules upon hearing requests and interver tion petitions, this order may be appealed to the Commission within 10 days af ter it is served.

3' Tile ATOMIC SAFETY AND j-LICENSING llOARD Marshall E. Miller, Chairman ADMINIS1RATIVII JUDGE Charles llechhoefer ADMINISTRATIVE JUDGE s

'J. Paul liollwerk, til

- ADMINISTRATIVE JUDGE Bethesda, Maryland October 7,1991 I

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