ML19331A721

Forwards R Timm Memo, Residential Electric Customer Gains, & Draft Rept, Analysis of Nuclear Reactor Availability Factors & Related Data, Fulfilling NRC & CPC Addl Info Requests.W/O Encl

ML19331A721
Person / Time
Site:	Midland
Issue date:	02/21/1977
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Brenner L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
Shared Package
ML19331A722	List: ML19331A721
References
NUDOCS 8007210730
Download: ML19331A721 (1)

Text

Law orr,c z, S *~ > *~/, Wu MYRON M. CHERRY

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February 21, 1977 g' No

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Lawrence F. Brenner, Esq. e q U. S. Nuclear Regulatory Commission Washington, D. C. 20055 Re: Midland Suspension Hearings j

Dear Mr. Brenner:

I have today received from Dr. Timm the remaining information which the Regulatory Staff has requested.

Accordingly, I enclose an undated memorandum entitled, "Resi-dential Electric Customer Gains" (one page), as well as a draft of a document entitled, " Analysis of Nuclear Reactor Availability Factors and Related Date" (28 pages).

Please note the remarks by Dr. Timm on the cover of the latter document which state: "This study has not been released yet and the text is obviously rough. I [that is, Dr. Timm] would request that it not be reproduced or quoted until final draft is completed and released." Accordingly, after your use of the enclosed copy in these proceedings, please return it to me, although I am making no requect that the Regulatory Staff not be permitted to use this material in connection with this hearing.

By the sending of this information, I have now responded to l all of the informational requests required of me by Consumers Power

! Company and the Regulatory Staff (Dow made ~no trequests) concerning Dr. Timm's testimony. Further, since the original requests, no additional requests have been made which remain unfulfilled.

~ ~ ~

Sinc ely,

, Ny

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Myrol.}i ir 5 ' >Ch rry MMC:es enclosures I210 (9 C.

j cc: Dr. Emmeth Luebke Dr. J. Venn Leeds -

Frederic J. Coufal, Esq.

• Lawrence F. Esq.

Brenner,/

Mr. C. R. Stephens ,

David J. Rosso, Esq.

R. Rex Renfrow, Esq.

.l.11 77 The lir. if e<l Sfnf e.* IAW WEEK 1:1 1.W $;19

. - -- - ~ ~ - --

bit.rri ed by the utilon atid the em. number of utiits already served in the fut ur e. Th" sem te.,* of t he z.htt.

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1:loye hivolved in this case. IIad the throu nte atul of the ordmant e is that. fu.s contra t in this case rositaltied a nn ' at th< ytime an exhtin", .cwcr connectio:t of reconstructino or re- ( iarged me directed to fund improw strike ( ause, the inue ahether the modeli g of the property then served. In uf s terpined by the bmden of m-sympath strike v10 lated that clause Anothe section of the ordinance pso- cre, sed unane. This conclusion is sup-might ha e been arbitrable. In the vides th t "all cosmection fees col- port d by the fact that the ordinance absence o a no-strike clause, how- lected he cunder shall be kept * *

• provi es a caedit against such con-ever, iluffa Forge establishes that in the c pital improvement fund, nectio i charge equal to the sewer there is no "possib!c basis for im- lwhich] sh til be used only for con- usa ge hat the owner had or was en-plying from the existence of an struction of mprovernents to the * *

• titled t, at, the time and place of an arbitration cla ise a promise not to plant, * *

• he interceptor or main- Increast in burden placed upon the strike that cou have been violated lines of the * ** system as it is now existing . stem by reason of a change by the sympath strike." 44 LW at or will in the uturc be constituted." in the use of property.

5340-50. To the xtent that Island The propert. owners argue first. It is fu. her argued that the stat.

Cteck Coal Co. v. MW, 507 F.2d G50 that the statut y provision deprives ute infring s the individual's permnal (CA3), cert. denic , 423 U. S.

t1975), succests oth rwise, that de-877 them of equal 1 otection under the liberty to t avel in violation of the law and discrimin ites as to property Due Procer. Cla uw. The property elslon catmot surviv Buffalo Quite sirup!y, the wor stoppage in- system. Foigt owners who are ' ow users" of the owners cite 5 mpiro v. Thompsca, 331 The propert owners contend U. S. G18 (10 9), in support of this volved here presented no arbitral,1c that while such st, utory provision contention. . I inp!ro concerns the issue. The court conc ides, there- was held to be c istitut!onal in statutes requir ig one year of icst-fore, that the sympath strike was Spaulding v. Granite ity,113 NF2d dence prior to a hieving cligibility for not a hrcach of the col 'ctive bar. (Ill. !!G3), and !!artm m' v. Aurora public aldf The Shapiro opinton is gaining agreement.-.Hosem J. Sanitary District,177 ? 02d 214 (Ill. keyed to the cons itutional concept of

-CA 3; U. S. Steel Corp. . United 1000, such holdnig was 'trected and the indlyldual's es.sonal liberty to Mine Workers of America, 2/20/70. limited to the fact that t te new and travel within the ountry and from additional usera there com ined were one state to anoth , and the Court in a geographical aren not icretofore concluded that the hallenged stat-served by any sewer syste so that utes Inhibited such li erty. It is clear, Municipal Corporatio s "'e ch ruc was for constru . ion of a however, that the sta de at hand is new and additional sewer sy. tem. Al- not concerned with I hibiting any SEWEltS- though Spaidding and Hartma i neces- such right as was disct. wed in Sha-Ill. moas statute and ordinanc en" sarily spoke in terms of th : Issues ph o -Tra pp, J.

acle I pursuant fl$ereto directing sa n- Within t1i rce rd presented, t ic stat- -Ill AppCL 4thJudDist; farriott v.

Itary sewer district to assess ' con- ute concerned picsents no L nguage Springfield Sanitary Distrfpt., 11/18/

nection fee,, against property os ners suggesting a geographical tes . limit- 70* Released 12/14/7G' ing the statutory who merease intensity of sewer sage the statute is clearly directe to the authority. Rather, thron:h cusptruction of add mnal increase of burden or loat placed dwelling umts on property served by existing sewer syst m ready does upon the system and a nec ssity for Oil anci Gas not violate Fourteenth Ame Oment's incteaslug the capacity for handling Equal Proterhon or Due Process such increased burden. PRACTICE AND PitOCEDURE---

034"5'

• The record includes cv lence that much of the current bui ding within Federal Power Commission's ;:e n.

The challenged ordinan c was en- the district whe e the o linance is in cral statuimy snandate to "mak e acted by the Sanitary strict pur- cffect has increased t e population such egendHurcs * *

• as am nem-suant, to Illinois Revi ed Statute, density from 10 pensa s per acre to san to execute its furycUons" an-Chapter 42, Paragraph 3 G, which pro- 50 persons per acre. t appears clear t horizes agency to rennburse at-vides: "The sanitary di. rict shall have that such change of lensity in popu- torneys' fcca imd reasonahic expenses the power to collect a dr and reason- lation is a new an additional use n to indigent intervenors whose par-able charge for conn etion to its sys- terms of the bur .n upon the sy(s- ticipation in public hearings substan-tem in addition t those charges tem just as is a cographical exten- Hally aid covered by normal axes, for the con- sion. Neither Sp; dding or Hartman ter pendm,ed FPCit.in disposition of mat-g before struction, expansto and extension of had occasfon to consider the fact of On January 23,197G, the FPC au-wo:ks of the syste , the charge to be an increase by use within the area, thorized construction of an electrical assessed against new or additional but, we canno realistically say that transmission line through the scenic users of the syst m and to be known upon the fact presented the Supreme Dutham Valley in Greene Coun ty, as a connectio: charge." The statute Court would omider the statute un- New Yor k. Various lutcrvenors be-further prov!d s that funds so col-

! constitution, by reason of the fact fore the FPC who were succenful in lected shall b used by the district that the in rea'se in sewer load was urging the selection of an alterna-for general e rporate purposes with not accom! anled by, or the result, of, tive route for the power line joined the primary .upplication being to fi- an extensi n of the system into ter- in asking the court to reverse the nance necessary expansion of the sys- ritory not >ctore served. FPC's refusal to pay for their litiga-tem's works to meet the requirc-ments of the new users-The a gument, t hat, the sanitary tion expenses. The intervenors spe-district's ordinance reflects a phil- cifically requested attorneys' fees and The challenged ordinance defines a osophyt charging a fee "to pay some- witness expenses. With respect to these "dwellhtg unit" as a single family thing or ccial into the community kitty claims the cornmission denied all se-t esidence, cach apar tment in an for wo t done by the first settfors" quests for reimbursemen t, holdmg apartment building, or cach trailer is wit! out anerit. The ordinance ex- that it lacked the anthnrity to ma':-

or space in a trailer park, and assesse , press! provides that the fees charged such payments and that none of the a $200 connection fee for each new or ate to go into the capital impaowment intervenors deserved such compen-additional dwel!!ng unit placed upon fund and to be expanded only for sation in any event since thry hn!

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LW 2320 T Unife<l Si< ties LAW WEEK 1-11-77 tre us he Orcere County Plan-The FPC nesertheless argue.s th tt rived from the letter of the Omnp-Ud. v. FPC, 47. F.2d 412 (CA2), even if it had the authority it. would troller General addrem.ed to the Chair dented, 409 U. 8. g19 (ID*i2), we not grnut fees and expriren to one m:m of a cringres ;irmal cominittee .-

med to onder the FPC to reim- grouts of intervenors becam.e they were Van Graafriland, J. -

le intervenors in the absence of only "protec",ng their own intcicats."

ress congressional authorizat!on. All intervenors in agency procecdings .-CA 7; Greene Cly. Plaimhm Ud. v.

hile this appeal has been pend- are engaged in protecting their per- FPC* 12/350' however, the Office of the Comp- ceived self-intercht; otherwise they er General annotmecd that in its would not, bother to intervene. Al- -

don the FpC does have authority though the intervenors were acting Social Security iay for intervenors' cxpenses. In in their own interests, they were at, ter of Costs of Intervention-Nu- the same time sccking a broader pub- C1 LD WELFAIllb-r Regulatory Commission, Dc- lic interest in preservation of un.

m B-D288 (Feb. 10, 197G), the spotted countryside. They seemed t I. <clihood of success of suit chal-iptioller General ruled that the have played an essential role in pm- lenga in Virginia policy of categorix-

has impiled authority to reim- ccedings. It was their evidence and hg ages withheld from workin-

.c impecunlous Intervenors. A let- advocacy that appears to have been AFDC ceipient pursuant to garnl3 hee of htay 10, 1970, from the Comp- responsibic for persuading the FPC susann, s as "incnine" in deterinin.

er Cencral to the Oversite and to reject the preference of its own ing AF G grants warrants issuance

.stigations Subcommittee of the staff and the applicant for the route of prelin inary injunction prohlblting se Committee on Interstate and originally proposed. Thus, the com- such prdi v, flgn Commerce Indicates that this mission was sub.tantia!!y aided in Vil. gin.ia computes as income, for dan is equally applicable to the making its delt.mination by the ac. {[{], 8 " K and clght other agencies: "Ap. tion of the intervanors. y irlated funds of each agency Under these circumstances, where that have been withhc!d from the be used to finance the cost of there is a good chance that the in- wage carne by the recipient's em-icipants in agency hearings when- tervenors may meet the standards ap- ployer purst. nt to a garnishee sum-the rgency finds that (1) It can- proved by the Comptro!!cr Gcncral, anons issued n behalf of a jud:pr:cnt make the required determina- the equitable course is to remand to creditor. In termining cligibility for a unless it extends financial as. the commission for reconsideration of AFDC an.istm cc, states must comdder nce to certain interested par- its holding in light of the,Comptiol- ".nct income a allable for current use who require it, and whose rep. Ier O(neraPs recent decit on.-Lum- . . lucome md resources are con-stat!on is necessary to dispose of bard,J. aldered :tvaila e both when actually r,atter before it; and (2) the party Dissent. I can find no statute em- available and s hen the app!icant or idigent or otherwise unable to powering the Comptroller General to accipient has a cgal interest in a 11-ice its part!cipation." issue what, is in effect a declaratory quidated sum su at dhhas the legal abil-e Comptroller General is Con- judgment clothing the FPC with au- ity to make a sum availab!c

.' agent for the purpose of de- thority to disburse public funds, in * * *" . 45 C.F 1233.20(a)(3)(ll)

Ining legality of administrative the face of the commission's own de- (d).

nditures, 31 U.S.C. The crux of thi complaint is that decision upon any question I G5(d), and in- termination that it had no such powcr wages withheld p rsuant to a gar-and this court,'s carlier finding in nishec's summons are not currently ng payments rns the General inade by an agency Accounting Of- support thereof. The Comptroller availabic as incom under this regu-n passing upon the account con- General's authority and responsibility lation. Thus, it is a gued, such wages ng such disbursements, 31 U.S.C. as the auditing agent of Congress is cannot be consider by the state ir, to provide a sound accounting struct- dclcrmining the a Tonnt of assist-ure for the Government from the

. hough express statutory author!- standpoint of effective financlai con- state, anee provided to a and, on the other y recipient. The notes that n is regulred before c!ther a trol and independent audit. 31 U.S.C. IIEW has interprete the regulation or regulatory commission can i G5 fd). No officer or agent of the so as to allow states to include gar-

• one litigant to pay a prevailing United States may disburse public nished wages in co puting AFDC

.ut's

>revailing expenses on represents litigant thy ground that money the to do so. unicss authorized See Royal by Congress Indemnity Co. v. gragts. Disregard of g rnished wages, the c interest, the Comptroller Gen- U. S., 313 U. S. 28D (ID41). Congress age recipients state arCues, woul only encour-to rely i the Govern-r.s concluded that fee reimburse- has specifically provided that sums ment as guarantors of their install-is distinguishable from fee appror.rlated for the various branches ment debts. Finally, th state points ng because it involves no excr- of expenditure in the public service out that even if it inclu es garnished of compulsion against a private shall be applied solely to the objects wages in comput.ing the amotmts of for which appropriations were mado AFDC grants, recipients

• rants would

)!!c hearinmi are integral to the and for no others, 31 U.S.C. IG33, not be reduced to a levt below the ioning of an agency such as the and has prohibited any officer or cm- standaids of the need for their fam-cnd authorization for reimburse. ployee from involving the Govern- ilies as established by the s ate.

cf indigent intervenors who ment in any obligation for the pay- State regulations have een held important contributions in these ment of money for any purpose, in invalid if they include as icsources ngs can reasonably be found in advance of appropriations made for income not actually availa Ic. Both tgency's general statutory man- such purpose, un? css such obligation is federal regulations and jm icial de-1G U.S.C. I 7D3 authorizes the authorized by law. 31 U.S.C. I CG5(n),

dLsion to "make such expendt- The FPC has never deemed itself au- prob!cm crees in reference to the instant have consistently stated

• *

• as are necessary to execute thorized to pay the !ccal fees of pri- that only those resources "cu rently" -

functions." -On this bas!s vate litigants and has made no re- and "actually" available to recipients c:

'omptruller GeneraPs decision is quest of Congress for an appropria- may be used to offset an AFDC grant, learly incorrect and as a conse- tion to pay these fees. Authorization The assertion that garnished wages e the FPC rization nowintervenors' to pay appears toex.

have for this payment must come from arc currently and actually available f Congress. Turner v. FCC, 514 F.2d to recipients is contra to the meaning 1

s. 1354 (CADC 1D7T-); it cannot be de- of the language used as wc!! as to

e 2-

<t 4

Dr. John R. Lyman Dr. Paul Mecray, Jr.

404 Clayton Road Suite 303 Chapel Hill, North Carolina 27514 Cooper River Parkway West North Park Drive Pennsauken, New Jersey 08109 Mr. David A. Caccia R. D. #2 Chauncey Kepford Box 70-A Sewell, New Jersey 08080 2586 Broad Street York, Pennsylvania 17404 Mark L. First, Esq.

Atomic Safety and Licensing Deputy Attorney General State of New Je:sey Board Panel

• 36 West State Street U.S . Nuclear Re,gulatory Commission Trenton, New Jersey 08625 ,

Washington, D . C. 20555 William Horner, Esq. Atomic Safety and Licensing Appeal 67 Market Street Panel (5)*

Salem, New Jersey 08079 U.S . Nuclear Regulatory Commission Washington, D. C. 20555 Richard Fryling , Jr. , Esq.

Docketing and Service Section (3)

Public Service Electric and Office of the Secretary Gas Company U.S. Nuclear Regulatory Commission 80 Park Place Newark, New Jersey Washington, D . C . 20555 Ms. Judith H. Johnsrud 433 Orlando Avenue State College, Pennsylvania 16801

• ji2' t4/ k $.

Richard L. BlacR Counsel for NRC Staff

Drs. Luebke and Leeds and Mr. Coufal Page Three February 21, 1977 The Court further held that the GAO and the Office of the Comptroller General had also concluded that:

"...the NRC has implied authority to reimburse impecunious intervenors."

Reasoning similarly, since the NRC has an obligation to provide for public input (indeed, public input is the cornerstone of the Atomic Energy Act,as amended) and because the NRC is obligated to have mandatory public hearings on construction p6rmits, it is clear that NRC must provide expenses and fees,and no barrier stands in the way of the Board ordering such expenses and fees.

We have now provided the Licensing Board with statutory and case precedent to support the implied authority of the NRC to pro-vide us fees and e::penses. We have earlier pointed out the over-whdlming need for fees and expenses, and this very Board has already made informal findings on the record that the participation of myself and Dr. Timm is crucial to a resolution of these suspension hearings.

It now appears that' there is no legal or factual barrier to the providing of fees and expenses to the Midland and Mapleton Inter-venors,and I assume that this problem can be resolved within the next few days.

I will make availabe to the Board, as soon as it requests it, underlying information concerning how much we need both for the suspension hearings as well as the remanded hearings.

For the convenience of the Board, I enclose a copy of the Law Week citation to which I made reference.

f Since ely,

/

4 0

.yr [ b }n M. Cher,r/

/

y fi v MMC:es f I enclosure /

Lawrence Brenner, Esq. "

l cc: j Mr. C. R. Stephens /

David J. Rosso, Esq.

I R. Rex Renfrow, Esq.

Lee F. Nute, Esq.

l