ML19211A438

Brief in Lieu of Pleading Supporting Intervenor Petition for Witness Funding.Commission Discretionary Powers,Congress Intent & President Carter 790516 Executive Order Allow Financial Grants to Intervenors.President Order Encl

ML19211A438
Person / Time
Site:	Three Mile Island
Issue date:	12/03/1979
From:	Cohen W, Kennard N PENNSYLVANIA, COMMONWEALTH OF
To:	NRC COMMISSION (OCM)
References
NUDOCS 7912180193
Download: ML19211A438 (24)

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UNITED STATES OF AMERICA O '

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BEFORE THE NUCLEAR REGULATORY COMMISSION

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In The Matter Of METROPOLITAN  :

EDISON COMPANY, et al.  : Docket No. 50-289 (Three Mile Island, Unit 1) .

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BRIEF 0F CONSUSER ADVOCATE OF PENNSYLVANIA IN SUPPORT OF CONSUMER ADVOCATE'S PETITION TO SEEK NRC FUNDING FOR INTERVENOR WITNESSES

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Walter W. Cohen Consumer Advocate Norman J. Kennard Assistant Consumer Advocate Dated: December 3, 1979

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. e TABLE OF CG7TDES Page(s)

I. STATDICE OF THE CASE . . . . .. . .. . ... . ... 1 II. ISSUES PRESDEED . ................... 3 A. VAS IT PROPER PROCEDURE FOR THE CCNSGER ADVOCATE

'IO FIIZ A PETITION PEQUESTING FUNDING OF INTERVEDR WITNESSES BEFORE THE NUCLEAR REGUIA'IORY CGI4ISSION . 3 B. MAY THE NUCLEAR REGUIA'IORY CCt41ISSION PROVIDE EUND-ING FOR EXPERT WI'INESSES, ENABLING TIE 1 'IO PROVIDE TESTE'ENY h1IICH IS NECESSARY NO RELEVANT BEFORE

'IEE NUCLEAR REGUIA'IORY CXM4ISSICN? . . ... . . . . 3 C. IS FQ' DING OF OUTSIDE EXPERIS NECESSARY hEERE THE NUCLEAR PEGUIA'IORY CDMISSION STAFF EXPERTS MAY BE UNABLE 'IO CREDIBLY AND CCf4PLTEELY ADDRESS THE ISSUES PRESDTTED, VIIEEE THE PUBLIC PERCEPTION OF THE NUCLEAR PEGUIA'IORY CCIGIISSION IS IARGELY NEGA-TIVE, AND hT!ERE THE CITIZEN VIEWPOINT MAY NOT

, CIHERNISE BE PRESENTED? . . . . .. . ... . .. . 3 III. DISCUSSION . ...................... 3 A. IT h2S PROPER PROCEDURE FOR THE CONSUMER ADVOCATE

'IO FIIE A PETITION REQUESTING FUDDIG OF HEER-VENOR WI'INESSES BEEORE THE NUCLEAR REGUUGORY CQt4IISSION . . . . . . . . . . . . . . . . . . . . 3

1. It is Erroneous For the Nuclear Regulatory Camission Iegal Staff To Claim That the Consumer Myocate of Pennsylvania, hto Has A Statutory Duty To Prctect and Pepresent the Interests of Consumers, May Not Support the Rights of Other Cbnsumer Intervenors in This Case . . . . . . . . . . . . . . . . . . . 3

2. It Is Erroneous For the Nuclear Regulatory Co:tmission Regulatory Staff to Claim That The Consumer Mvocate of Pennsylvania May Not Appeal the Board's Denial of Intervenor Fun:hng To This Comission . . . . . . . . . . 5 B. THE NUCLEAR REXIJIA'IORY COMISSICN PAY, BY ITS ,

DISCRETICNARY PGERS, MAKE AVAIIABLE FINANCING FOR INTERVENOR WITNESSES 'IO TESTIFY BEFORE THE NUCLEAR uN'IORY COMISSICI . . .... .... 7 1607 321

. 4 TABLE OF CONTENTS (Con _.)

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1. Congress Has Stated That the Nuclear Pegalatory Cc:nnission Has the Auticrity to Fairh:rse Parties Where It Dee:ns Necessary . . . . . . . . . . . . 7

2. The Nuclear Pegulatory CotTmission Has Broad Dis-cretion Ib Interpret and Irple:mnt The Atomic Energy Ict and Possesses Both Express and Irplied Authority To Fund Intervenor E:gerts . . . . . . 9

3. President Carter, By Executive Order, Has Stated That Public Funds Should Be Made Available to Citizen Intervenors By the Nuclear Regulatory Ocmnission . . . . . . . . . . . . . . . . . . . 11

4. The Cu,gu.Oller General of the Lhited States Has Stated That the Nuclear Pegulatory Co:nnis-sion May Fund Intervenor Participation . . . . . 12

5. Other Federal Regulatory Agencies Have Concluded That, Despite the Iack of Express Congressional Authority, They Are Authorized to Fund Intervenor Participation . . . . . . . . . .. . . . . . .. 13 C. FUNDING OF IITIERVENCR WITNESSES IS NECESSARY IN THE IMMEDIATE PROCEEDIhES TO ENSURE A FULL AND CG9LETE REOCRD AND TO RESTORE THE PUBLIC COhTIDENG IN THE NUCLEAR REGUIATORY CGNISSION . . . . . . . . . . . . 14 D. THE UNDERLYING FICIS AND IAW ESTICIED BY THIS HONORABLE CCf4IISSICN IN DEVEICPING ITS GENERAL POLICY THAT IN-TERVENOR FUNDING IS NOT NECESSARY ARE OLTDDED AND NO IONGER VIABLE . . . . . . . . . . . . . . . .. . . . 18 IV. CCNCLUSICN . . ...................... 19 1607 322

~ . a I. STATEMENT OF THE CASE The immediate action is an adjudicatory proceeding before the Atomic Safety and Licensing Board (ASLB or Board), investigating various issues relating to the possible restart of the Three Mile Island Unit 1 (TMI Unit 1), which has not operated since March of 1979, due to the occurence of.an accident at the adjacent twin reactor, TMI Unit 2, and Order of the Nuclear Regulatory Commission (NRC or Commission) dated July 2, 1979.

On August 9, 1979 the NRC ordered that the facility remain in a cold shutdown condition until completion of certain "short term" actions by Metropolitan Edison (Met-Ed or Company), the plant operator, and resolution of various concerns described in that Order. The NRC designated the ASLB to conduct a hearing on these issues. Numerous citizen groups filed petitions to intervene, including the Chesapeake Energy Alliance (CEA), the Environmental Coalition on Nuclear Power (ECNP) and the Anti-Nuclear Group Representing York (ANGRY), and several state agencies, including the Office of Consumer Advocate of Pennsylvania (OCA), filed petitions for leave to participate.

In its Order of August 9, 1979 this Honorable Commission stated that it would, at a future date, consider whether it could or should grant financial assistance to parties seeking to address the psychological distress which might be caused to the surrounding community by a restart of TMI Unit 1. CEA and several other intervenors, due to a severe lack of resources, requested NRC funding to assist them in presentation of their case and in order to offset the .

disadvantage caused by such inadequate resources. ANGRY moved that the ASLB certify to the NRC the question of financial assistance on all issues in the immediate action, not merely psychological distress.

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The ASLB, by Memorandum and Order issued October 15, 1979, denied CEA's request for funding on the grounds that this Commission had preempted I

consideration of this issue by a previously issued policy statement and by limiting consideration of possible funding to the psychological distress issue. In essence the ASLB ruled that it was not the proper authority to consider the issue. The Board, on identical grounds, also refused ANGRY's request that the intervenor funding issue be certified to this Commission, by Memorandum and Order issued 0::t obe- 31, 1979.

The Consumer Advocate of Pennsylvania then filed a " Petition to Seek NRC Funding for Consumer Intervenors to Finance Witness Expenses" with this Honorable Commission, and requested that the NRC hear and rule upon this Petition inasmuch as the ASLB stated that it was without discretion or authority to approve funding of intervenor witnesses on any issue other than psychological distress, or, alternatively that the NRC delegate to the ASLB the authority to grant such funding. The NRC legal staff, on November 21, 1979, filed a response in opposition to the Consumer Advocate's Petition.

This Brief is filed as an answer to the staff's response and in furtherance of the Consumer Advocate's belief that funding of intervenor witnesses is necessary in the instant proceeding and that this Honorable Commission is the proper party to adjudicate the issue.

1 In The Matter of Nuclear Regulatory Commission (Financial Assistance '

to Participants in Commission Proceeding), CLI-76-23, Docket No. PR-2, 4 NRC 494, November 12, 1978. (Hereinaf ter NRC Financial Assistance)) .

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II. ISSUES PRESENTED A. WAS IT PROPER PROCEDURE FOR THE CONSUMER ADVOCATE TO FILE A PETITION REQUESTING FUNDING OF INTERVENOR WITNESSES BEFORE THE NUCLEAR REGULATORY C0!D1ISSION?

B. MAY TE NUCLEAR REGULATORY C0!D!ISSION PROVIDE FUNDING FOR EXPERT WITNESSES, ENABLING TIEh TO PROVIDE TESTIMONY WHICH IS NECESSARY AND RELEVANT BEFORE THE NUCLEAR REGULATORY C0tCIISSION7 C. IS FUNDING OF OUTSIDE EXPERTS NECESSARY WERE THE NUCLEAR REGULATORY COFDfISSION STAFF EXPERTS MAY BE UNABLE TO CREDIBLY AND COMPETENTLY ADDRESS THE ISSUES PRESENTED, WHERE THE PUBLIC PERCEPTION OF THE NUCLEAR REGULATORY COMMISSION IS LARGELY NEGATIVE, AND WlERE THE CITIZEN VIEWPOINT MAY NOT OTHERWISE BE PRESENTED?

III. DISCUSSION A. IT WAS PROPER PROCEDURE FOR THE CONSUMER ADVOCATE TO FILE A PETITION REQUESTING FUNDING OF INTERVENOR WITNESSES BEFORE THE NUCLEAR REGULATORY CO?c!ISSION.

1. It Is Erroneous For the Nuclear Regulatory Commission Legal Staff To Claim That the Consumer Advocate of Pennsylvania, Who Has A Statutory Duty To Protect and Represent the Interests of Consumers, May Not Support the Rights of Other Consumer Intervenors In This Case.

The Office of Consumer Advocate (OCA) is an agency of the State of Pennsylvania and is participating in the above-captioned action under 10 CFR S2.715(c). The OCA was created by the Pennsylvania General Assembly in 1976 as an independent state agency authorized to represent the " interest of consumers" before the state and federal regulatory commissions. The Consumer Advocate, by statute, has broad discretion to define and interpret that phrase.2 The Consumer Advocate has determined, in the particular instance of the recent events at Three -

2 71 Pa. C.S.A. $309-4. 607 325 3

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Mile Island, that the interest of consumers as represented by the Consumer AJvocate may extend to health and safety issues as well as economic issues, and, further, that the health and safety issues

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presented by the immediate action are inextricably tied to the economic condition of Met-Ed.3 The 'intervenor groups, which have requested or may request funding for witness expenses, are consumers and it is completely proper for the Consumer Advocate to support their rights in the matter of funding. Further, the Consumer Advocate believes that all Pennsylvania consumers will benefit by NRC funding of intervenors witnesses. The Consumer Advocate is supporting the rights of his client and, thereby, fulfilling his statuto ry duty. The situation is completely different from that of a private party acting in the interest of another. The General Asr.embly of Pennsylvania has created the OCA to represent consumers and it would be inappropriate for this Honorable Commission to '

deny the Consumer Advocate authority to fulfill his statutory mandate.

Further, the precedent cited by the NRC staff as support for its theory, Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NR <. 610 (1977), is irrelevant to the proposition for which the staff claims it stands. The issue in that case was standing to intervene only.

3 See: " General Statement of Pennsylvania Office of Consumer Advocate Regarding Petition For Leave to Participate As An Interested State Agency", October 22, 1979, filed with the ASLB in the instant proceeding.

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2. It Is Erroneous For The Nuclear Regulatory Staff to Claim That the Consumer Advocate of Pennsylvania May Not Appeal the Board's Denial of Intervenor Funding To This Commission.

The NRC legal staff correctly states that 10 CFR $2.730(f) precludes interlocutory appeals from rulings of the presiding officer (the ASLB in this instance), unless the presiding officer determines that prompt decision by this Commission is "necessary to prevent detriment to the public interest or unusual delay or expense" and further determines that the ruling should be referred or certified the to the full NRC. However, the staff incorrectly applies 10 CFR

$2.730(f) in this instance.

The first sentence in 10 CFR $2.730(f) states the general rule: "No interlocutory appeal may be taken g the Commission from a ruling of the presiding officer." (Emphasis added.) The ASL3 did not rule that funding was not necessary. The Commission, properly asserting its authority as principle and primary agency, refused to delegate authority to the Board to rule on requests for intervenor funding, except on the issue of psychological distress by its Order of August 9, 1979. The ASLB expressly recognized that : "By expressly considering that possible exception [for the isue of psychological distress to the general rule of no intervenor funding] the inference must be drawn that the Commission had considered the possibility of general intervenor funding and decided to limit its consideration to funding on psychological issues." (Emphasis added) . The Staff agrees with this inference by the Board. Consideration by the Board of the intervenor funding issue was also preempted by issuance of this Commission's decision in NRC (Financial Assistance).

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Therefore, 10 CFR 52.730(f) is inapplicable in this instance because the holding by the ASLB that funding was unavilable was not a ruling at all, but rather an application of a ruling made by this Honorable Commission. It was the action of an agent following the directive of its principal.

The Staff's logic, by which it concludes that the Consumer Advocate followed improper procedure, would foreclose all avenues of appeal of this issue to the NRC, despite the fact that immediate consideration by this Commission is absolutely necessary to permit meaningful participation by intervenors during the course of the above-captioned proceeding. Failure to extend funding will result in irreparable prej udice . The Staff claims that consideration by the NRC is foreclosed unless the Board agrees to certify the issue to the Commission. The Board however, refused the request for certification filed by ANGRY, on the ground that no purpose would be served thereby because this Commission would refuse to make funding available.

Therefore, according to the NRC Staf f, consideration of this matter by the Commission may not be had.

The issues presented by the recent events at Three Mile Island are . unique and of first impression. This Honorable Commission should not allow itself to be foreclosed from openly and publicly considering the various arguments favoring funding of intervenor witnesses on issues other than psychological distress, and intervenors should not be denied the opportunity to know the specific grounds for this Commission's ultimate ruling on this issue.

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B. THE NUCLEAR REGULATORY COMMISSION MAY , BY ITS DISCRETIONARY POWERS, MAKE AVAILABLE FINANCING tok INTERVENOR WITNESSES TO ,

TESTIFY BEFORE THE NUCLEAR REGULATORY COMMISSION.

1. Congress Has Stated That the Nuclear Resrulatory Commission Has the Authority to Reimburse Parties Where It Deems Necessary.

In its consideration of the Energy Reorganization Act of 1974 (P.L.93-438) the Senate included numerous amendments which would have provided this Honorable Commission with express statutory authority to fund intervenors. Although these bills were deleted in conference, the conference committee expressly stated that the Nuclear Regulatory Commission, under the current statutory schema, has authority to provide intervenor funding:

The deletion of Title V is in no way intended to express an opinion that parties are or are not now entitled to some reimbursement for any or all costs incurred in the licensing proceedings. Rather, it was felt that because there are currently several cases on this subject pending before the Commission, it would be best to withhold Congressional action until these issues have been definitively determined. The resolution of these issues will help the Congress determine whether a provision similar to Title V is necessary since it appears that there is nothing in the Atomic Energy Act, as amended, which would preclude the Commission from reimbursing parties where it deems necessary.

(Emphasis added). 5 4 These amendments were contained in Title V of the Senate version of that legislation. Senator Kennedy introduced S.1791 which provided for direct cost and fee reimbursement to intervenors. Senator Netcalf proposed S.2787 which would require the Nuclear Safety and Licensing Board to provide information and technical assistance to parties and an ability to pay basis. S.2788, also proposed by Senator Metcalf, would have required the disclosure of information relating to safety systems previously protected from the Freedom of Information Act as " propriety".

5 120 Congressional Record at S.18722 (October 10, 1974).

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Inasmuch as Congress considered the Atomic Energy Act a sufficient mechanism for the provision of intervenor funding, it determined that it would await the outcome of ad-inistrative consideration of the issue and would defer any action until that time.

Subsequently, Senator Kennedy introduced into the Senate a bill entitled "Public Participation in Government Proceeding Act of 1977" (S.270) which will, if enacted, specifically authorize administrative agencies , including the NRC, to dispense public funds to reimburse eligible parties to an agency proceeding for expert witness expenses, attorney's fees and other costs of participation. This proposed legislation is currently pending before the Senate.

In an article recently published by the Anerican Bar Association, Martin Body, Assistant Director for the National Capital Planning Commission, has concluded that passage of S.270 is imminent.

" Based on the momentum now represented in Congress it appears that federal agencies will be pushed into a new era of participatory democracy." (Emphasis in original).

6 The Commission was considering the issue of intervenor funding generically at NRC (Financial Assistance), Docket No. PR-2 and a final order was issued on November 12, 1976, denying intervenor funding.

7 Public Participation in Federal Agency Proceedice Act of 1977, S.270, 95th Congress, 1st Session, 123 Congressional Record 676 (1977).

(Hereinafter S.270).

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8 Rody, " Governmental Financing of Citizen Participation in Federal Agency Proceedings: A Practitioner's Outline," 21 Administrative Law Review 81, 96.

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Therefore, Congress has clearly stated that under the Atomic Energy Act the NRC may, in its discretion, fund intervenor participation, and failing such exercise of discretion by the NRC, Congress may soon provide a statutory mechanism to ensure the availability of such funding.

2 The Nuclear Regulatory Commission Has Broad Discretion To Interpret and Implement The Atomic Energy Act and Possesses Both Express and Implied Authority To Fund Intervenor Experts.

As was established in the proceeding section the NRC has express authority under the .stomic Energy Act of 1954 to fund intervenor witnesses. If this Honorable Commission nonetheless finds, despite substantial reason to do so, that express funding authority has not been granted by Congress, then the Consumer Advocate asserts that such authority may be implied.

Reviewing Courts have consistently held that determinations by administrative agencies are entitled to great deference. This is equally true of an agency's interpretation of its own statute and its powers thereunder.'

9 Volkswagenwerk Aktiengellschaft v. Federal Maritime Commission, 390 U.S. 262, 272, 88 S. Ct. 929, 19 L.Ed.2d 1090 (1968); Udall v. Tallman, ,

380 U.S. 1, 16, 85 S. Ct. 792, 13 L.Ed.2d 616 (1965); Greene County

v. FPC, (en banc) supra Footnote 2 at 1239; Chamber of Commerce v. USDA, 457 F. Supp. 216, 221 (D.C. 1978).

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In Creene County v. FPC, the Second Circuit declined to require that the Federal Power Commission (FPC) award legal fees to a successful intervenor where that agency had previously refused to do so.

Although that court appeared to state that agency authority to fund intervenors must come from Congress, it "placed great weight on the FPC's construction of its statute and on the FPC's explicit distaste for funding intervenors. Id. at 1239 n.2."10 However, the Second Circuit's refusal to reverse the FPC on the ground that any mandate to disburse funds must come from Congress begs the essential question - may the authority to fund intervenors be implied by an agency which has determined that such participation would be of assistance in fulfilling its enabling act?

In Chamber of Commerce v. USDA the District Court for the District of Columbia held that such authority could be implied by an agency. Federal agencias have " implied power voluntarily to fund the views of parties whose position might otherwise go unrepresented."II In 10 Chamber of Commerce v. USDA, supra footnote 9 at 220-21. The court in Chamber of Commerce v. USDA agreed with the holding in Greene County v. FPC on the ground that compelling an agency to reimburse fees when it believes that it lacks the power of that an intervening party does not deserve reimbursement might be stifle the agency's willingness to allow intervention or to lead to unnecessary intervention by parties more interested in fees than advancing a meritorious viewpoint."

Chamber of Commerce v. USDA, supra footnote 9 at 221.

11 Chamber of Commerce v. USDA, supra footnote 9 at 221. The court in Chamber of Commerce v. USDA stated that a finding of implied authority ,

was not contrary to the finding of the Second Circuit in Greene County Planning Board v. FPC, 559 F.2d 1227 (2nd Cir. 1977) that "[t]he authority of a Commission to disburse funds must come from Congress."

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that case, the United States Department of Agriculture (USDA) entered into a contn e with the Consumer Federation of America (CFA), a consumer advocacy organization, whereby the USDA would finance a CFA study stating the consumers' viewpoint on a proposed regulation. The plaintiffs, various industrial associations, sought to enjoin the USDA from funding or considering the study. Plaintiff's motion for a preliminary injunction was denied.

The court was greatly persuaded by the USDA's finding that consumer testimony was essential to a fair and balanced record and necessary for that agency to carry out its enabling statute. It was upon this fact that Greene County v. FPC was distinguished. "The court gives deference to the agency interpretation of its own statute and cannot say that the interpretation is wrong as a matter of law."

Therefore, the NRC may within its administrative discretion determine that its powers under the Atomic Energy Act of 1954 impliedly include the authority to expend funds to obtain info rmation and testimony not otherwise available.

3 President Carter, By Executive Order, Has Stated That Public Funds Should Be Made Available To Citizen Intervenors By the Nuclear Regulatory Commission.

By Memorandum (herein attached as " Appendix A" and incorporated into and made a part of this Memorandum of Law) dated May 16, 1979 President Carter has directed all Federal Agency heads, ,

12 Chamber of Commerce v. USDA, supra footnote 9 at 222; see also:

footnote 9 generally.

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including this Honorable Commission, to determine their authority, express or implied, to establish a public participation funding program and to assess the need for such a program. President Carter vigorously supports intervenor financing and has appointed a Special Assistant for Consumer Affairs to coordinate a government-wide program of funding.

I have suppocted, and will continue to support, legislation tc, create, andardize, and adequately finance public particyation funding programs government-wide. Independent of these legislative efforts, there is a current need for public participation funding and I strongly encourage each department and agency with the requisite authority to a public participation funding instftute program.

Therefore, the President of the United States has unequivocally stated that under his executive powers he encourages and will support any effort by this Honorable Commission to provide intervenor funding and will support any legislation designed to require this same end.

4 The Comptroller General of the United Etates Has Stated That the Nuclear Regulatory Commission May Fund Intervenor Participation.

The Comptroller General has stated that the NRC may fund inte rveno r participation where such participation can " reasonably be expec;ed to contribute substantially to a full and fair 13 Memorandim of President James E. Carter For the i!eads of Executive Departments and Agencies, May 16, 1979, at page two. " Appendix A".

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determination." Thus, this Honorable Commission is assured that the General Accounting Office will not impede any disbursement of funds to intervenors for such a legitimate purpose as to aid in the development of an adequate record in the instant proceeding.

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5 Other Federal Regulatory Agencies Have Concluded That, Despite the Lack of Express Congressional Authority, They Are Authorized to Fund Intervenor Participation.

Several federal agencies have concluded that intervenor funding is permisr.ible and even desirable. The Civil Aeronautics Botrd (CAB) has adopted fo rmal regulations by which individuals or groups representing the interests of the public may be compensated.15 CAB

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concluded that. such a program of funding was necessary "to assist the Board in making full and fair resolutions of issues presented in its public proceeding..." Similarly, the Consumer Product Safety Commission has promulgated regulations designed to compensate participants in proceedings before it. The Food and Drug 14 In the Matter of Costs of Intervention-FDA, B-139703, 56isBons of Comptroller General of the U.S. 111-115, December 3, 1976. Although this decision was addressed to intervention before the FDA, it is directly applicable to the NRC. Letter of Comptroller General to the Oversight and Investigative Subcommittee of the Hause Committee on Interstate and Foreign Commerce, May 10, 1976, cited in NRC (Financial Assistance) at 4 NRC 494.

15 14 CFR 5304.

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16 14 CFR $304.2. 1607 335 17 43 Fed. Reg. 23562 (1978).

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Administration published a proposed rulemaking to provide for payment of attorneys fees and other assistance to hearing participants.I The National Highway Safety Administration recently issued a final rule establishing a one year demonstration program of financial assistance, and has issued a proposed rulemaking notice providing for a permanent program of financial assistance.

C .- FUNDING OF INTERVENOR WITNESSES IS NECESSARY IN THE IMMEDIATE PROCEEDINGS TO ENSURE A FULL AND COMPLETE RECORD AND TO RESTORE THE PUBLIC CONFIDENCE IN THE NUCLEAR FIGULATORY COMMISSION.

Funding of intervenor witnesses in the immediate proceedings would provide this Honorable Commission with information and data regarding TMI Unit I which might be otherwise unavailable to it.

Presentation of this evidence is essential to ensure a full and complete record, which will represent the viewpoints of all persons affected by operations at Three Mile Island, not merely the opinions of Metropolitan Edison and its parent, General Public Utilities.

All expenditures made by the Company in this case will most probably be paid dollar for dollar by Met-Ed consumers. But consumers themselves and other intervenors have little or no resources for presentation of their case. Without funding, intervenors will be denied an opportunity to meaningfully participate, the evidence presented will be one-sided, and the hearings will be dominated by advocates for the Company. This gross imbalance should be remedied. The Consumer

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1607 336 18 41 Fed. Regl. 35855 (1976).

19 42 Fed. Regl. 2863 (1977).

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Advocate takes no position on which groups and viewpoints should be funded, but rather believes funds should be dispensed to parties who can make a contribution to resolving the issue of whether TMI Unit 1 should be allowed to restart.

If this resource imbalance, which has historically existed in licensing proceedings before the ASLB, is perpetuated in the instant proceedings, the final decision of the Board could be based upon inadequate and untested data and assumptions . It has been suggested that a large but indeterminate extent, the events atTMI Unit 2 in March of 1979 were a function of this imbalance of advocacy. Perhaps, if funding is provided and the various intervenors are, thereby placed in positions approaching, or at least simulating, parity with the Company, there is a greater chance that the Board will be able to render a balanced, fully info rmed and rational decision, which will be in the public interest.

It is questionable whether the NRC technical staff standing alone will be able to provide a counterbalance to the Company's presentation and assure that the public interest is adequately represented.

The flaw in " traditional conception of the administrative process" so widely perceived by today's commentators is its assumption that the public interest can be fully se rved by

" disinterested experts" operating independently of interested parties. It is now generally agreed that broadened public participation is needed to add perspectives to the decisional process that may not be available either from an indus or applicant or f rom an agency staf f.gy respondent

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1607 337 20 Murphy and Hoffman, " Current Models for Improving Representation in the Administrative Process", 28 Administrative Law Review 391, 393 (1976).

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In the case of the NRC staff, this " flaw" is well documented.

The Report of the President's Commission on the Accident at Three Mile Island (Kemeny Commission Report), issued on October 30, 1979, is replete with indictments of faulty staff analysis, attitudes and I

procedures. For example, the Kemeny Commission found that:

" insufficient attention has been paid to the ongoing process of assuring nuclear safety" "the huge bureaucracy under the commissioners is highly compartmentalized with insufficient communication among the major offices" 3 ; and key management personnel with NRC posses "the old AEC promotional philosophy" . The Kemeny Commission, an independent, objective and disinterested body, concluded: "With its present organization, staff, and attitudes the NRC is unable to fulfill its responsibility for providing an acceptable level of safety for nuclear power plants.,,25 (Emphasis added).

s 21 See for example: Kemeny Commission Report Findings G.1, G.3, G.5, G.8.c, G.8d., G.10., and G.12.

22 Kemeny Commission Report, supra at 20.

23 Id. at 21.

24 d. at 21. 1607 338 25 Id. at 56, Finding G.12.

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Further, the general public perception of the NRC is ove: whelmingly negative. Citizens, especially those residing in and around Three Mile Island, resent the impositions of a distant bureaucracy, whom they perceive as uncaring as to their safety and well-being. To a large degree, this disenfranchisement is attributable to the lack of meaningful participation by citizens before the NRC and the ASLB, and could be cured if an attempt was made to solicite technical information and data which represented, in a positive fashion, citizen concerns over plant safety. True, general public testimony has been gathered by various NRC committees and study groups visiting the areas surrounding Three Mile Island, but this information is non-evidentiary and not of a type which will be helpful to the ASLB and

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this Honorable Commission in adjudicating the difficult and complex technical issues which must be resolved prior to any restart of TMI Unit

1. This Commission should solicit technical information, as presented on behalf of intervenors, which will serve this purpose.

Therefore, it is absolutely necessary for this Honorable Commision to actively search beyond the traditional sources of information, the licensee and the NRC technictl staff, and secure expert testimony, by directly funding such experts on the technical issues facing this Commission and the ASLB in order to ensure that the final order issued in this case is the most comprehensive, balanced and fair decision possible. Failure to seek all of the facts available in this case would condema us to the mistakes of the past.

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THE UNDERLYING FACTS AND LAW EllPLOYED BY THIS HONORABLE C0te!ISSION IN DEVELOPING ITS GENERAL POLICY THAT INTERVENOR FUNDING IS NOT NECESSARY ARE OUTMODED AND NO LONGER VIABLE.

In reaching its conclusion that funding for intervenors was not appropriate in NRC (Financial Assistance), this Honorable Commission placed primary reliance on the opinion of the Comptroller General that intervenors should be funded only where the NRC " determines that it cannot make the required determination" unless such financial assistance is provided to intervenors "whose participation is essential to dispose of the matter before it..." The NRC concluded that: "[g]iven th[e]

advanced state of the art in reactor safety. the professionalism, depth and experience of our regulato ry staff, and the further screening provided by expert committee and board review, we simply are unable to make the determinations set forth in the Comptroller General's standard." This determination is erroneous for several reasons.

Subsequent to this Commission's order in NRC (Financial Assistance) the Comptroller General modified his opinion regarding intervenor financing. If intervenor participation can

" reasonably be expected to contribute substantially to a full and fair determination" then, this Commission may fund intervenors. While intervenor expert witnesses might not be absolutely necessary or

" essential" to the resolution of the issues presented in under stricter standard, there can be no doubt that such expertise would " contribute

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26 NRC (Financial Assistance), supra footnote I at 497.

27 -Id. at 503.

28 See Footnote 17. 1607 340 18

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substantially to a full and fair determination" in the instant proceedings.

Further, as discussed in section III. B. of this brief, findings made by the Kemeny Commission place serious doubt on the ability of the NRC technical staff to ensure the safe operation of TMI Unit No. I and the safety and welfare of the surrounding community. The conclusions contained in the Kemeny Commission Report substantially refute the basic supporting premise of the Commission's decision in NRC (Financial Assistance) regarding the adequacy of the staff presentation to counterbalance the case presented by the licensee or applicant utility. With the failure of this premise, the validity of the ultimate conclusion that funding was not necessary is lost. If the NRC technical staff is unable to adequately pe rfo rm its function, then

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information must be solicited from outside sources.

IV. CONCLUSION For the foregoing reasons, the Consumer Advocate of Pennsylvania respectfully requests that this Honorable Commission approve and provide assistance to inte rvenors in the above-captioned proceeding who have requested or will in the future request such assistance, for the purpose of retaining experts to submit studies and/or testify on any and all issues raised in the above-captioned action.

Respectfully submitted, l' /3 ,/

V , - / -

Walter W. Coh n Consumer Advocate

/Y

/WA /d

'forman JamesA(ettfiard Assistant onsumer Advocate

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. . THE WHITE HOUSE - -

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WAS H I N GTo N

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May 16, 1979 '

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MEMORANDUM FOR THE HE DS OF -

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• EXECUTIVE DEPARTMENTS AND AGENCIES -

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• Executive Order 12044 of March 23, 1978, formalized the .

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'. . Adninistration's commitnent to publi.c participation in

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Federal agency proceedings. Widespread part).cipation can -

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improve the quality of agency decisions by assuring that they are made on the basis of more complete and balanced records. .

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Experience has shown, however, that citinen groups often

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find the cost of neaningful participation in agency pro-ccedings to be prohibitive. Many citizen groups are unable to pay the costs o.f czperts and attorneys' fees, clerical costs, and the costs of travel to. agency proceedings. As

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- a result, the views and interests of consumers, workers, small businessqs, and_others often go unrepresented, or underrepresented, in. proceedings that may have substantial impacts on their health, safety, or economic well-being.

In recognition of 'the cost problems faced by many citizen groups, beveral agencies have established programs to pro ~

vide financial assistance to persons (1) whose participation in a proceeding could reasonably be enpected to contribute

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to a fair disposition of the issues and (2) who would be unable to participate effectively in the proceeding in .the

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absence of such assistance.. These. programs have improved agency decisionnaking, and I believe they should be. utilized in other agenc*ies. .

Accordingly, I direct each Executive Department and' Agency to take the following steps:

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- " 1. Each department and agency'that has not already catablished a public participation funding progran should .

determine whether it has statutory authority to do so. .

I note in this regard that the Departnent of Justice has

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advised Federal agencies that they may determine for them-Selves Whether they have c%plicit. or implicit authority to fund such programs. .

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In the event that an agency concludes that it does not have this authority, it should innediately apprise ny Special Assistant the grounds forupon Consuner ubich itAffairs of that conclusion and of is based.

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to establish a public participation funding progran should a= cess the extent of its need for such a program. A pre-.

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lininary evaluation, as well as a tentative tinetable .for the developncnt of progran regulations, should be forwarded . .

to ny Special Assistant for Consuner Affairs uithin 60 days of the issuance -of this nenorandun. After appropriate con ~.

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.sultation uith other White House and Enecuti4e Office of to ne on these evaluations .the President offici.als, my Special Assistan -

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Itohavecreate, supported, standardize and uill continue to support, legislation '

ticipation funding prog,rans governnent-wide.and adequately Independent finance of pub these legislative efforts, there is a current need for-public participation funding and I strongly encourage each department and agency funding participation uith the progran. requisite authority to institute a public -

Until new legislation is enacted, houever, additional prograns of this sort will have to rely upon agency funds already allocated. My Special Assistant to provide technical for Consuner assistance Affairsandand advice herregarding staff willthe be -availab structure and standards of such programs.

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