ML19254E479

Statement by PA Ofc of Consumer Advocate in Support of 790815 Petition to Participate as Interested State in Restart Hearings.Duty to Represent Consumer Interests Is Matter of Right Per Applicable Laws.Certificate of Svc Encl

ML19254E479
Person / Time
Site:	Three Mile Island
Issue date:	10/22/1979
From:	Cohen W PENNSYLVANIA, COMMONWEALTH OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 7911010218
Download: ML19254E479 (13)

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TIC UNITED STATES OF AMERICA N(X2 EAR REGUIAIORY COMISSION BEFOPE THE A'IG4IC SAFETY AND LICENSING BOARD In the Matter of  :

METTROPOLITAN EDISCN  :

COMPANY, et al.  : Docket No. 50-289 (Restart)

(Three Mile Island, Unit 1)  :

STATEME:7f OF THE PENNSYLVANIA OFFICE OF CCNSGER ADVOCATE RB3ARDING PETITION FOR LEAVE 'IO PARTICIPATE AS AN INitmsitu STATE AGENCY

1. On August 15, 1979 the Pennsylvania Office of Consumer Advocate filed with this Honorable Board a Petition for Leave to Participate in the above-captioned action, pursuant to 10 CFr. 2.715 (c) . Such participation would be as a matter of right for representatives of an interested State agency.

2. The Nuclear 9egulatory Ccmnission Staff (Staff), on September 4,1979, filed a Response to this and other governmental petitions. The Staff stated therein that it "does not now oppose the participation of any of these petitioners." The Staff Response then questioned this Office's participation under 52.LJ(c) on the ground that the Consumer Advocate sought to represent "the economic interests of ratepayer consumers", which was not "within the zone of interests 1288 B7 7 911 01'> 91 $

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sought to be protected by the Atanic Energy Act and National Envi1.umental Policy Act."

?, In a M d 7 and Order Ruling on Petitions and Setting Special Preheam.arg Conferwce, issued September 21, 1979 in the above-

<atitled action ' _uinafter Meny;randum and Order), this Honorable Board deferred rendering a final decision on the Consumer Myocate's Petition and requected that the Consumer Mvocate submit a statement or report acdressing: (1) the specific subject matter on which the Consumer Mvocate wishes to participate; (2) how that subject mat;'r pertains to the responsibilities of his Office; and (3) the result of a suggested conference with counsel for the Pennsylvania Public Utility Camission regarding that agency's representation of the interests of the Consumer Mvocate or consolidated participation between the Consumer Mvocate and the Ccmnicsion in the above-captioned action. This statement is filed pursuant to that request.

4. The Consumer Mvocate respectfully represents that he should be permitted to participate, not as a matter of this Honorable Board's discretion, but as a matter of right under 10 CFR S2.715(c),

which states in pertinent part: "The presiding officer will afford representatives of an interested State. . . and/or agencies thereof, a reasonable opportunity to participate. . .." (Emphasis added.)

5. The Office of Concumer Mvocate was created by the Pennsylvania General Assembly in 1976 as an independent state agency authorized to represent the " interest of consumers" before state and federal regulatory cm missions. The Consunnr Mvoca by statute has broad discretion to 2

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define and interpret that phrase and is required to file a written Public Statement at the time of intervention in any proceeding " stating cancisely the specific interest of consumers to.be protected." 71 Pa.

C.S.A. S309-2 and 309-4.

6. The consumer Mvocate thus has the broad duty "to represent the interest of consumers as a party. . . before the [ Pennsylvania Public Utility] Ccamission in g matter properly before the camission."

(Emphasis addel.) 71 Pa. C.3.A. S309-4 (a) . Therefore, the subject matter jurisdiction (although not the interest) of the Consumer Mvocate is, in this respect, identical to and coincidental with that of the Pennsylvania Public Utility Ccmnission (PUC) as delineated under the Public Utility Code of Pennsylvania.

7. This Honorable Board has granted the Public Utility Ccmitission participant status in the above-captioned proceeding under S2.715(c), on the ground that the responsibilities of the PUC " relevant to tl'e safe, adequate and reliable generation of electricity ccruprise appropriate interest and standing to participate." Mcnorandum and Order at 4. This is the very sane subject matter jurisdiction and framework within which the Consumer Mvocate operates in representing the interest of consumers. Therefore, it would be inconsistent and erroneous for this Honorable Board to deny S2 715(c) standing to the Consumer Mvocate 4

while properly and wisely granting such status to the PUC.

8. Pursuant to the direction of this Honorable Board in its Fkunorandum and Order, the Consumer Myocate conferred with counsel for the Public Utility Ccumission (Deputy Chief Counsel Steven A. Fk:Claren) 3

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and can report agreamnt that there exists a fundamental difference in roles between the two parties. Further, both counsel believe that the separate representation and presence of both agencies in the instant proceeding can add strength to the overall develognent of a sound and thorough record on which this Ilonorable Board can make a nost informed decision. For example, there may be instances where counsel for the PUC may be unable to take firm positions on given issues in this forum because related issues may cane in front of the members of the Public Utility Catmission for decision. In such instances, the Consumer Mvocate would not suffer fran the same restrictions and would be able nore freely to offer testimony and express opinions.

9. Counsel further agree that this issue and the rationale behind their joint understanding of the perspective with which each agency must function can be expanded uoon at the Special Prehearing Conference. Briefly, while the subject matter jurisdiction of the Pennsylvania Public Utility Catmission and the Consumer Mvocate is coincidental, the interest to be served is different. The Consumer Mvocate must act in the consumers' interest, not in the more general public interest. Thus, the PUC must also consider the interest of the utilities under its regulation, the concerns of the investment camunity, and the general welfare of the Carmianwealth of Pennsylvania. Positions taken by the PUC in the instant proceedings will not necessarily coincide with the interest of Pennsylvania consuners as this interest must be defined under the law by the Consumer Mvocate. For this reason, it would be inappropriate to require the Consumer Mvocate to be represented 4

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by counsel for the PUC or to suggest a consolidated presentation by the two parties.

. 10. It is the statutory duty of the Consumer Mvocate to address, Infore any relevant agency, matters affecting Pennsylvania utility consumers. This would include the continuing financial viability of the bbtropolitan Edisin Cmpany (Met-Ed) and the prospective ability of bbt-Ed to provide safe, adequate, efficient, and reliable service,

11. The Office of Consumer Mvocate is intimately familiar with the financial status of General Public Utilities (GPU) and its two Pennsylvania subsidiaries, bbt-Ed and Pennsylvania Electric Cmpany (Penelec), and has the capability to offer special assistance and insight to this Honorable Board in grappling with these issues. During the past two years, this Office litigated each of the two rate relief requests that each of these operating cmpanies brought before the Public Utility Conmission. Furthermore, between April and June of 1979, this Office was deeply involved in the special consolidated 'IMI-2 related rate proceeding before the PUC. Each of these five cases involved an in-depth analysis of GPU's service and business operations. Consequently, the Consumer Mvocate has had a particularly good opportunity to become intimately familiar with the econmic and financial picture that faces, and is likely to face,bbt-Ed and GPU.

12. The service and financial problems confronting bbt-Dd will be directly and expressly addressed by this IIonorable. Board in the instant action. Order and Notice of Hearing, August 9,1979, at 4 and

7. Further, these issues will be studied by the Pennsylvania Public 5

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Utility Ccnmission in the near future, which consideration could be affected substantially by actions of this Honorable Board. Infonmtion gathered by the Consumer Advocate in hearings held in the instant case will be of great benefit, if not absolutely necessary, to its participation in hearings before the PUC. For example, in the rate-setting process both this Office and the PUC will need to be treare of all federal safety requirements which will have a cost impact.

13. The rules regarding S2.715(c) standing, interpreted through case law, clearly indicate that the Office of Consumer Advocate should be permitted to participate as an agency of an interested state.

In Exxon Nuclear Ccnpany, Inc., 6 NRC 518 (1977), the California Energy Resource Conservation and Developnent Conmission (Energy Conmission) petitioned the Atcmic Safe ~y and Licensing Board (ASLB) for leave to participate under S2.715(c) in hearings addressing the issue of whether Exxon should be permitted to construct a reprocessing plant in Tennessee.

The California Energy Ccmrtission's Petition was based upon the argument that participation was necessary in order to secure information in the Tennessee promedings relevant to its authority in California. The Petition was granted by the ASLB.

Upon appeal by Exxon, the ASLB decision was upheld by the Atcmic Safety and Licensing Appeal Board (Appeal Bcord) . Exxon htclear Ccmpany, Inc. , 6 NRC 873 (1977) . Chairman Sharfman stated the general rule: "Once it is determined that a state is an interested State within the rule's meaning, its right to take part in the proceedings is established.

The right is not dependent on discretionary factors." Id. at 878.

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Mr. Salzman, a mmber of the Appeal Board, stated the policy considerations underlying 52.715(c):

What is.at stake is the agency's right to participate in the deeelognent of the record, to ensure that matters of particular concern to rnlifornia are fully explored, to ask hard qmstions about them and probe the answers given. . . without demandmg that they prejudge the situation. . .. In short, in our proceedings a state agency is not to be analogized to a private party but enjoys a more advantageous position precisely because it represents an aspect. of the public interest." Id. at 879.

Mr. Salzman concluded: "In the Long run, public confidence in our ability to regulate nuclear power responsibly in an evenhanded, dispassionate manner is ill-served by closed hearings and a crabbed reading of regulations."

Id. These considerations are of parancunt importance in the instant proceeding, where the att'ntion of the citizens of the Ccxmonwealth of Pennsylvania and, indeed, the entire country is focused upon the actions of this Ilonorable Board.

Under NBC case law, S2.715(c) is thus interpreted broadly and liberally to allow participation by interested states and agencies thereof, even in other instances where the state seeking to participate is not the situs of the plant in issue and where the state's interest may be informational only.

14. The Consumer Advocate desires to participate in the issue of Metropolitan Edison's financial qualifications as they affect its ability to safely operate Three Mile Island's Unit No.1 (3MI-1) . The issue of the continuing financial capabilities of Met-Ed involves numerous sub-issues including but not necessarily limited to:

(a) the ability of Met-Ed to perform necessary maintenance and repairs in a timely and responsible manner without 1288 343

cmpranising the integrity of 91I-1 or endangering the surrounding ccnnunity; (b) the ability of Metropolitan Edison to adequately train its personnel to safely operate 91I-1; the ability of the Cmpany to safely and adequatcly (1 decontaminate 911-2 if it should be operating 211-1 at the same time; (d) the ability of Met--Ed to ensure that adequate safeguards are available to protect the general public should another accidant occur at the DiI site; and (e) the ability of Met-Ed to carply with NRC Rules, Regulations, and/or orders requiring technical changes in the nuclear units at Three Mi.le Island.

15. The emphasis placed in the Consumer Myocate's Public Statement on the econcmic interest of ratepayers did not nuan to imply that this Office is not concerned with safety issues. Perhaps the requirement for filing a detailed Public Statement, placed on this Office in its enabling legislation, has prejud'ced its position through the initial delineation of concerns in far greater depth than the brief Petition of the Public Utility Ccmnission or the avan briefer Petition of the Ccmnonwealth of Pennsylvania. The Consumer Myocate contends that questions of financial capabilities are not readily separated from questions of safety, especially when the utility in question is in the precarious financial' condition in which Met-Ed currently finds itself following the D11-2 accident. The financial qualifications of Met-Ed to run the Three Mile Island plant safely have properly been placed in issue by the Nuclear Regulatory Commission in its Order and Notice of Hearing. The management capability of the Pmpany is significantly related to safety of operation of its plant. Such a facility cannot be 8

made to operate safely by imposition of technical requirenents unless the Caupany has adequate financial and management capabilities. On the other hand, an adequately financed carpany is worthless without a safely operated generation plant.

16. The consumers of the Metropolitan Edison and Pennsylvania Electric systems will ultimately be the resources called upon to fund the catpanies. Lacking any effective voice in the management of the canpanies, these conrumers deserve at least to have representation fran their statutorily designated counsel in proceedings which ultimate]y will affect them. The Consumer Advocate has the responsibility to provide this assistance on ensuring through effective advocacy both econamy and safety of operation for the Canpany's ratepayers.

MIEREFORE, The Consumer Advocate respectfully requests that this Honorable Board grant the v >nsumer Advocate's Petition for Ieave to Participate in the above-captioned action under 10 CFR S2.715(c) for the reasons above enu:rerated and to address the issues above delineated.

Respectfully Submitted,

/ g_ -

Walter W. Cohen Consumer Advocate Date: October 22, 1979 1288 045 9

UNITED STATES OF AMERICA NUCLEAR REGUIRIDIE T@iISSION BEFORE 'IHE A'IOMIC SAFETY A:TD LICENSING BOARD In the Matter of  :

METROPOLITAN EDISCN  :

OWPANY, et al.  : Docket No. 50-289 (Restart)

('Ihree Mile Island, Unit 1)  :

CERTIFICATE OF SERVICE I, Walter W. Cohen, hereby certify that I have this 22nd day of October,1979 served copies of the attaLied statenent of the Pennsylvania Office of Cbnsumer Mvocate Regarding Petition For Icave 'Ib ParticiAte As An Interested State Agency on each of the persons nmned in the attached service list by causi i the same to be deposited in envelopes addrersed to said persons, first clacs, postage prepaid, and deposited with the United States Postal Service at 813 Market Street, Harrisburg, Pennsylvania 17105.

Respectfully subnitted, n

bV lli Walter W. Cohen (bnsumer Mvocate 1288 346

. . - . . - . ~ .

UNITED STATES OF AbERICA NUCLEAR REGUIRIORY COMISSION BEFORE TIE ATOMIC SAFDIY AND .

LICENSING BOARD In the Matter of  :

MDI'ROPOLITAN EDISO4  :

COTANY, et al.  : Docket No. 50-289 (Pestart)

(Three Mile Island, Unit 1)  :

Ivan W. Smi.th, Esq.

Atamic Safety & Licensing Board U.S. Nuclear Regulatory Ccmnission Washington, D.C. 20555 D. Walter H. Jordan 88 W. Oub2r Drive Oak Ridger TN 37830 Dr. Linda W. Iittle 5000 Hermitage Drive Raleigh, NC 27612 Secretary Nuclear Regulatory Ccmnission Washington, DC 20555 George F. Trowbridge, Esq.

Shaw, Pittman, Potts & Trchbridge 1800 M Street, N.W.

Washington, D.C.

Counsel for NRC Staff Office of Executive Icgal Director U. S. Nuclear Regulatory Ccmnission Washington, D.C. 20555 Ms. Marjorie M. Aamodt R.D. #5 Coatesville, PA 19320 l g Ms. Holly S. Keck, Leg. Chairman Anti-Nuclear Group Representing York (ANGRY) 245 W. Philadelphia Street York, PA 17404

Ms. Frieda Berryhill, Chairman Coalition for Nuclcar Power Plant Postponoment 2610 Grendon Drive Wilmington, DE 19808 Mr. Pobert Q. Pollard Chesapeake Energy Allinnce 609 bbatpelier Street Baltinore, FD 21218 .

Karin W. Carter, Esq.

Assistant Attorney General 505 Executive House P.0, Box 2357 Harrisburg, PA 17120 Chauncey Kepford, Esq.

Environmental Coalition on Nuclear Pchur 433 Orlando Avenue State College, PA 16801 Robert L. Knupp, Esq.

Assistant Solicitor County of Dauphin P.O. Box P, 407 N. Front St.

Harrisburg, PA 17108 Mr. Marvin I. Irwis 605 Bradford Terrace Philadelphia, PA 19149 Jordan D. Cunningham, Esq.

Fox, Farr & Cunninghran 2320 North Second Street Harrisburg, PA 17110 Karin P. Sheldon, Esq. (PANE) '

Sheldon, Hcrman, ILisman & thiss 1725 I Street, N.W., Suite 506 Washington, D.C. 20006 John A. Iavin, Esq.

Assistant Counsel PA Public Utility Cunnission Room G-28, North Office Building Harrisburg, PA 17120 l} VO 1 O

'j U Mr. Steven C. Sholly 304 South Market Street Hochanicsburg, PA 17055

Theodore Adler, Es.

Attorney for Three Mile Island Alert, Inc. (' DITA)

P.O. Box 1547 IIarrisburg, PA 17105 Ilonorable Mark Cohen S12 E-3 Main Capitol nnilaing IIarrisburg, PA 17120 Mr. Thmas Gerusky Bureau of Ibdiation Protection DepartInent of Environmental Resources P.0, Box 2063 Harrisburg, PA 17120 J.G. IIerbein, Vice President Metropolitan Edison Campany P.O. Box 542 Reading, PA 19603 1288 949

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