ML20083B798

Answer of Util to City of Brook Park,Oh Suppl to Petition for Leave to Intervene.* Concluded That City Petition Failed to Satisfy Any of Three Criteria for Intervention,Therefore Leave to Intervene Should Be Denied.W/Certificate of Svc

ML20083B798
Person / Time
Site:	Perry
Issue date:	09/16/1991
From:	Charnoff G OHIO EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#391-12208 A, NUDOCS 9109250208
Download: ML20083B798 (12)

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DPLMLi[0 Winc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION cl gp 16 P I '3I BEFORE THE ATOMIC SAFETY AND LICENSING BOARO In the Matter of )

)

OdIO EDISON COMPANY ) Docket No. 50-440A

)

(Perry Nuclear Power Plant, )

Unit 1) )

ANSWER OF OHIO EDISON COMPANY TO CITY OF BROOK PARK, OHIO'S SUPPLEMENT TO PETITION FOR LEAVE TO INTERVENE On August 8, 1991, the City of Brook Park, Ohio, filed a petition for. leave _to intervene in this proceeding. On August 16, 1991, this Licensing Board issued an order stating that:

The notice of hearing for this proceed-ing, which-is reterenced.in the Brook Park petition, directed that any intervention petitions were to be filed more than two months ago (i.e., no later than May 31, 1991). -Brook Park.has made no effort in its petition to show either that its intarvention request is not late under the terms of the hearing notice or that, in accordance with 10 C.F.R. S 2.714(a)(1), a balancing.of the fac-tors governing the admission-of nontimely intervention filings supports the grant of its petition.

Any additional submission Brook Park desires to make concerning the timeliness of its petition must be filed no later than Sep-tember 4, 1991.

Brook Park. filed a supplement to its intervention petition on September 4, 1991.

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In view of the Board's August 16, 1991 Order, this Ansver is Ohio Edison Company's rssponse to Brook Park's petition as sup-plemented by its September 4, 1991 filing. See 10 C.F.R. 5 2.714(c) (1991). For the reasons stated below, Brook Park's petition should be denied on the grounds of untimeliness, as well as on its merits.

Brook Park's request for intervention should be summarily rejected on the grounds of untimeliness. A determination whether to accept a nontimely intervention petition is based upon a bal-ancing.of the following factors: good cause for the untimeliness; alternative means to protect the petitioner's interest; the extent to which the petitioner can contribute to the proceeding; whether existing parties can represent the petitioner's interest; and whether the petitioner's-participation will expand or delay the proceeding. 10 C.F.R. 5 2.714(a)(1)(i)-(v).

First, Brook Park's petition and supplement fail to show

_ good cause for its untimeliness. Brook Park bec6ma officially interested in developing a municipal electric system on June 25, 1991, whan it passed ordinances to provide for studying the fea-sibility of municipalization, and agreed to pay consultants

$55,000 for that purpose. Brook Park's Supplement at 2. Even if these events ware sufficient to justify a late-filed petition --

in which case any municipality could unilaterally extend the-intervention deadline established by the Board in this proceeding

E d .L

-- Brook Park, which has the assistance of an attorney who has been personally involved in this case since 1988,1# makes no attempt to explain why this constructive and actual notice was insufficient to cause it to become involved in this proceeding at least from the time these events took place.

Furthermore, Brook Park's argument that it was unaware of any motions deadline (Brook Park's "upplement at 4) is unavail-ing. The May 1, 1991 Federal Register provided constructivt notice of the a.ue date for intervention petitions. Ignorance of NRC procedure is no excuse f r even pro se litigants; certainly it is no excuse for Brook Park, whose counsel was personally mailed a copy of the Notice of Denial and Opportunity for Hearing

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in this case.1 Second, Brook Park's potential future interest in reasonable treatment by CEI -- assuming that Brook Park's "recent p

1/ On February 5, 1988, Brook Park's attorney Gregg Ottinger submitted the Comments of the City of Clyde, Ohio Opposing-Request to Suspend The Perry Nuclear Power Plant Antitrust License Conditions and Petition for Leave'to Intervene. On July 15, 1988, Mr. Ottinger submitted the Opposition of the City of Clyde, Ohio to the Application to Suspend the Perry and Davis-Desse Operating Licenses to Euspend the Antitrust Conditions.

2/

' Metropolitan-Edison Co. (Three Mile Island Nuclear Sts. tion, Unit 1), ALAB-772, 19 N.R.C. 1193, 1247 (1904). .

2/ NRC Staff mailed Mr. Ottinger a copy of the Notice of Denial and Opportunity for Hearing before it was published in the Federal Register. See Service List to April 26, 1991 Letter

'from S. Turk to G. Charnoff and J. Murphy (with enclosures including the Notice of Denial).

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initiat[ ion of) a study of the feasibility of establishing a municipal electric system," Brook Park Petition at 2, eventually blossoms into the actual creation of such a system -- can be pro-tected by means other than participation in the current proceed-ing. Specifically, if the conditions are suspended and CEI refuses to deal with the future Brook Park Municipal Electric System in ways that violate the antitrust laws or the Federal Power Act, Brook Park can air its grievances before the Federal Energy Regulatory Commission or in federal district court.

Third, while it appears that Brook Park's participation vill neither broaden the issues nor delay the proceedings, this is because Brook Park has proffered no legal arguments of its own, but merely incorporates by reference the arguments made by the NRC Staff, as well as by two of its sister municipalities and two municipal cooperatives. See Brook Park's Petition at 2-3 (refer-encing a total of ten pleadings submitted by the NRC Staff, the City of Cleveland, the City of Clyde, American Municipal Power-Ohio,Inc, and the American Public Power Association).

Brook Park's part icipation in this proceeding thus cannot reason-ably be expected to assist in the develrpment of the record.

Fourth, Brook Park's interest (hypothetical as it is) can be adequately represented by parties to the proceediag, specifically the City of Cleveland and American Municipal Power-Chio

(" AMP-Ohio") -- which do have standing to intervene -- as well as

by NRC and the DOJ staffs.S! Brook Park does not explain how AMP-Chio's participation in this proceeding can protect AMP-Ohio's 75 membersEI without simultaneously protecting the interests of the nine Ohio municipal electric systems that do not belong to AMP Ohio,6/ as well as any other Ohio municipality t!.at might be contemplating the formation of an electric system.

Thus the balance of factors indicates that Brook Park's petition should be denied on the grounds of untimeliness.

Even if the petition ic not summarily rejected on this basis, it should be denied on its merits. The NRC's Rules of Practice provide, in pert;nent part, that:

(c) Any party to a proceeding may file an answer to a petition for leave to intervene

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

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

. . . shall, in ruling on --

(1) A r. ition for leave to intervene

. . , , cota der the following factors, among other things:

1/ OE maintains its position, however, that the Licensing Board should give no weight to the recommendations of the NRC and DOJ Staffs because of the congressional taint associated with them. See OE's Proposed Issues (6) and (7) (submitted July 25, 1991).

E/ See Petition of American Municipal Power-Ohio, Inc. for Leave to Intervene (filed July 3, 1991 in this proceeding) at 2.

5/ Id.

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

Ii (ii) The nature and extent of the peti-

! tioner's property, financial, or other inter-est in the proceeding.

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

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

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

i' CLI-83-25, 18 N.R.C. 327, 332 (1983). These judicifl standards require that the challenged action could cause (1) "3njury=in-fact" to the potential intervenor, and (2) that stjch injury is arguably within the z".1e of interests protected by the Atomic Energy Act. See Warth v. Seldin, 422 U.S. 490. 5(1(-01 (1975);

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

It is clear from its petition and supplement that Brook Park will suffer no " injury-in-fact" -- nor will it be any worse off than it is nov -- as a result of the suspension of the antitrust conditions at issue in this proceeding. Brook Park is not at present a beneficiary of the antitrust conditions on the Perry and Davis-Besse plants in Ohio. Rather, its asserted interest in this proceeding stems from the fact that it is censidering the possibility of establishing a municipal electric system at some unspecified future time. Inasmuch as Brook Park apparently has not even determined whether establishing such a system is feasi-ble, the possibility exists that no such system vill ever be cre-ated, in which case Brook Park vill suffer no injury at all as a result of this proceeding.

A petitioner t.o intervene must have some " direct stake" in the outcome of the proceeding. Allied-General Nuclear Services,,

(Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 N.R.C.

420, 422 (1976) (citina Sierra Club v. Morton, 405 U.S. at 439-10). Standing cannot be based upon " abstract concerns" in the matter which are not accompanied by some real impact on the petitioner, Transnuclear, Inc. (Ten Applications for Low-Enriched Uranium Exports to EURATOM Member Nations), .LI-77-14, 6 N.R.C. 525, 531 (1977). Rather, to justify intervention, an

" injury-in-fact" must be " distinct and palpable," Warth v.

Seldin,~422 U.S. at 501, not " abstract," " conjectural" or " hypo-thetical." Allen v. Wright, 468 U.S. 737, 751 (1983) (citing Los i

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2 Angeles v. Lyons, 461 U.S. 95, 101-102 (1983); O'Shea ya Littleton, 414 U.S. 488, 434 (1974)).

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Brook Park's possible future creation of a municipal elec-trical system cannot support standing to participate in the cur-f rent proceeding. "A plaintiff must allege that he has been or w ill in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action." Allied-General, 3 N.R.C. at 2

265 n. 11 (citing United States v. SCRAP, 412 U.S. 669 (1973)).

Furthermore, Brook Park's asserted interest represents a I

generic concern affecting all-municipalities within areas servei p by the Cleveland Electric. Illuminating Company, the Toledo Edison Company, and Ohio Edison Company. Such a " generalized grievance shared by a large number of citizens in a substantially equal measure" will not support standing. Warth v. Seldin, 422 U.S. at 499;.Three Mile Island, 18 N.R.C. at - 333 (c_iting Transnuclear, <

N.R.C. at S31).

, In short, Brook Park's petition for leave to intervene fails

-to satisfy any of the three criteria for intervention under 10 C.F.R. $ 2.714(d).1! Since Brook Park will have no " injury-in-1/ Its-petition also fails under the factors governing discre-i-

tionary intervention. See Pebble Sprinos, 4 N.R.C. at 616.

(Each of the Pebble Sprinas factors has been address above, inasmuch as Pebble Sprinos factor (1) is the same as that in Footnote continued on next page.

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s' tact," it does not have standing under Section 189a of the Atomic Energy Act to support intervention as of right. See S 2.714(d)(i). And because Brook Park will have no " injury-in- ,

fact," it has no direct stake or interest in the proceeding, see 5 2.714(d)(ii), nor will any order that may he entered in the proceeding adversely affect Brook Park's interest, see 5 2.714(d)(lii). In sum, Brook Park is not entitled to intervene on the basis of-its status as a municipality which "recently ini-tinted a study of the feasibility of establishing a municipal electric system." Brook Park Petition at 2.

For all of these reasons, Ohio Edison respectfully submits that Brook Park should not be permitted to intervene in this proceeding.

Pespectfully submitted, h 4(Al$ ./ M C &- G Gerd1d CharnoJ4 Debor h B. Charnoff Margaret S. Spencer SHAW, PITTMAN, POTTS & (OWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037 '

(202) 663-8000 Counsel for Ohio Edison Company Dated: September 16, 1991 Footnote continued from previous page.

10 C.F.R. S 2.714(a)(1)(iii); factor (2), S 2.714(d)(1)(ii);

tactor (3), S 2.714(d)(1)(iii); factor (4),

S 2.714(a)(1)-(ii); factor (5), S 2.714(a)(1)(iv); and factor (6) is substantially the same as to S 2.714(a)(1)(v).

" .L UNITED STATES OF AMERICA 'i,h[hh NUCLEAR REGULATORY COMMISSION 91 SEP 16 P1 :31 BEFORE THE ATOMIC S&FETY AND LICENSING BOARD ,

In the Matter of )

)

OHIO EDISON COMPANY ) Docket No. 50-440A

)

(Perry Nuclear Power Plant, )

Unit 1) )

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 16th day of September, 1991, a copy of the foregoing Answer of Ohio Edison Company to City of

-Brook Park's Supplement to Petition for Leave to-Intervene was hand-delivered to:

Secretary of the Commission U.S. Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville,' Maryland.

Charles Bechhoefer Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 4350 East West' Highway l Room E-413 Bethesda, Maryland 20814 l

G. Paul Bo11werk, III' l Atomic Jafety and Licensing Board Panel U.S. Nuclear Regulatory Commission 4350 East West Highway Room E-522 Bethesda, Maryland 20814 and that a copy of the foregoing Answer of Ohio Edison Company to City of Brook Park's Supplement to Petition for Leave to-y l-1 i

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l Intervene was transmitted via Federal Express to each of the ifollowing:

Marshall E. Miller, Chairman Atomic Safety and Licensing Board Panel 1920 South Creek Boulevard Spruce Creek Fly-In Daytona Beach, Florida 32124 Joseph Rutberg, Esq.

Sherwin E. Turk, Esq.

Steven R. Hom, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mark C. Schechter, Esq.,

Janet Urban, Esq.

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

Washington, D.C. 20001

-James P. Murphy, ssq.

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

P.O. Box 407 Washington, D.C. 20044 Craig S. Miller, Esq.,

Director of Law June W. Weiner, Esq.,

Chief Assistant Director of Law William M. Ondrey Gruber,.Esq.,

Assistant Director of Law City Hall, Room 1-0C 601 Lakeside Avenue Cleveland, Ohio 44: u5 Reuben Goldberg, Esq.

Channing D. Strother, Jr., Esq.

• Goldberg, Fieldman & Letham, P.C.

1100 Fifteenth Str9et, N.W.

Washington, D.C. 20005

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.o D. Biard MacGuineas, Esq.

Volpe, Boskey and Lyons 918 Sixteenth Street, N.W.

Washington, D.C. 2000f .

- David R. Straus, Esq.

Spiegel & McDiarmid

- 1350 New York Avenue, N.W.

Suite 1100 Washington, D.C. 20005-4798 Kenneth L. Hegemann, P.E.

President American Municipal Power-Ohio, Inc.

601 Dempsey Road.

P.O. Box 549 Westerville, Chio 43081 '

Philip N. Overholt Office of Nuclear Plant Performance Office of Nuclear Energy U.S. Department of Energy, NE-44 Wtshington, D.C. 20585 David A. Lambros, Esq.

Law Director '

City of Brook Park 6161 Engle Road Brook Park, Ohio 44142 Gregg D. Ottinger, Esq.

Duncan & Allen 1575. dye Street, N.W.

Suite 300 Washington, D.C. 20005

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Margardt S. Spe'ncer SilAW,jPITTMAN, POTTG & TROW 2 RIDGE 2300 N Street, N.W.

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

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