ML19209A791
| ML19209A791 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 09/28/1979 |
| From: | Charnoff G SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Harold Denton Office of Nuclear Reactor Regulation |
| References | |
| NUDOCS 7910050399 | |
| Download: ML19209A791 (9) | |
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September 28, 1979 LCN=..?
s euCf.onee"E D ias O C.
Dr. Harold R.
Denton Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C.
20555 In the Matter of Union Electric Company (Callaway Plant, Unit 2)
Docket No. STN 50-486 Request for Action under 10 C.F.R.
S 2.206
Dear Dr. Denton:
By letter of September 5, 1979, you transmitted to Union Electric Company a copy of the Missouri Public Service Commission's
" Request for Institution of Proceedings Pursuant to 10 CFR S 2.202 to Suspen Construction Permit as Provided for in 10 CFR S 2.206,"
dated Aug :st 14, 1979.
The Request seeks the initiation of a pro-ceeding to suspend the construction permit for Callaway Plant, Unit 2, in light of revisions to the peak demand forecast for the Company.
These comments are submitted on behalf of Union Electric Company, the holder of Construction Pennit CPPR-140 f..,r Callaway Plant, Unit 2.
I.
Licensing History of the Callaway Plant Union Electric Company filed an application for con-struction perm ts for the Callaway Plant, Units 1 and 2, '<ith h0 the AEC in 1974.
The application included an Environmental
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i SHAW, PITTMAN, POTTS & TROWBRIDGE Dr. Harold R.
Denton September 28, 1979 Page Two Report-Construction Permit Stage, which contained a discussion of the Company's need for the proposed plant.
Following the preparation and distribution of a draft environmental impact statement, the NRC staff issued a Final Environnental Statement on the application in March, 1975.
In its FES, the staff found a need for the applicant to provide an additional 2240 MWe of generating capacity to its service area.
The staff also stated:
If developments in the next year or two were to indicate tentative demand projections to be too high, the applicant could stretch out the plant construc-tion schedule, if desired, with insubstantial cost penalty inasmuch as the increased interest chargas of a longer schedule would tend to be compensated by the savings in construction costs due to an earlier starting date, since construction costs are projected to increase rather sharply during the next several years.
Finally, even if conservation of energy measures are effective in reducing the demand for electricity in the 1980's, adding nuclear capa-city is desirable in order to reduce the amount of fuel consumed by gas-or coal-fired units, thus increasing the availability of that resource for whicn there are no available substitutes.
(Emphasis added.)
NUREG-75/Oll at page 8-16.
An Atomic Safety and Licensing Board was designated to conduct hearings on the application, which was contasted by several intervenors.
The Missouri Public Service Commission became a party to the proceeding pursuant to 10 C.F.R.
S 2.715 (c).
Among the contentions raised by the intervenors were allegations that in various ways the applicant's and the staff's assessments of the need.for the proposed facilities were inadequate.
In its Partial Initial Decision-Envircraental and Site Suitability Deter-minations, the Licensing Board found that applicant's load fore-cast was reasonable, and that construction of the plant for operation on the schedule proposed was required to rueet the need for electric power.
LBP-75-47, 2 N.R.C.
319 at 327, 340 (1975).
Pursuant ta 10 C.F.R.
S 50.10 (e) (1), a Linited Work Authorization was issued on August 14, 1975, and construction began shortly thereafter.
I126 326
SHAW, PITTMAN, POTTS & TROWBRIDGE Dr. Harold R.
Denton September 28, 1979 Page Three In its Initial Decision (Construction Permit), LBP-76-15, 3 N.R.C.
445 (1976), the Licensing Board authorized the issuance of construction permits, and on April 16, 1976, Construction Permits CPPR-139 and CPPR-140 were issued to Union Electric Company for Callaway Plant, Units 1 and 2.
No appeal was taken from the Licensing Board's findings on the need for the plant, and in its reviewing decision, ALAB-347, 4 N.R.C.
216 (1976), the Atomic Safety and Licensing Appeal Board found no errors en this issue warranting correction.
4 N.R.C.
at 223, n.15.
Union Electric Company also filed in 1974 an application with the Missouri Public Service Commission for permission and authority to construct, operate and maintain the twc-unit Calla-way Plant.
Pursuant to state law, the PSC must give its permis-sion and approval before an electric utility may begin construc-tion of an electrical plant.
In addition, the PSC must approve all financings issued by the Company for the construction of a plant.
In hearings on the application before the PSC, the Company's load projections were challenged by intervenors and by the PSC's staff.
In its Report and Order of March 14, 1975, in Case No. 18,117 (a copy of which apparently was attached to the instant Request), the PSC found that the Company's forecasts of peak load demand were reasonable, and that the proposed plant was needed if the Company is to continue to meet the electrical needs of its customers.
Slip op. at 24.
The PSC, in that Report and Order, authorized Union Electric Company to construct, operate and maintain Callaway Plant, Units 1 and 2.
The PSC's Report and Order was affirmed in subsequent judicial review pro-ceedings.
See State ex rel. Utility Consumers Council of Missouri v.
Public Service Commission of Missouri, et al.,
562 S.W.2d 68d (Mo. Ct. App. 1978), cert. denied, U.S.
99 S.Ct.
192 (1978).
II.
Status of Callaway Plant, Unit 2 When the Atomic Safety and Licensing Board made its findings on the need for the Callaway Plant, Unit 2 was scheduled for commercial operation on April 1, 1983.
The projected com-mercial operation date for Callaway Plant, Unit 2, now is April 1, 1126 327
S H AW, PITTMAN, P 3TTS & TROWB RIDGE Dr. Harold R.
Denton September 28, 1979 Page Four 1987.
This adjustment in the construction schedule for Unit 2 was announced by the Company on February 11, 1977.
The Commission was advised of this change in the letter from Mr. Bryan (UE) to Mr. Rusche (NRC) of February 15, 1977 (ULNRC-183).
Callaway Plant Unit 2 construction is presently 0.7%
complete.
Construction expenditures for the unit through June 30, 1979, exclusive of nuclear fuel charges, were approxi-mately $40 million.
In October, 1979, Union Electric Company will file with the NRC an mnendment to its application which will seek the issuance of an operating license for Callaway Plant, Unit 1.
Recognizing the extended construction schedule for Unit 2, the Company is limiting its submission on that unit to the techni-cal information required for the staff's safety review and the environmental information necessary to consider, in evaluating the Unit 1 application, the combined environmental effects of a two-unit plant.
An operating license for Unit 2 will be sought at a later date consistent with the scheduled completion of con-struction of that unit.
III.
Standards Relevant to the Request In its Request of August 14, 1979, the Missouri Public Service Commission seeks the initiation of a proceeding pursuant to 10 C.F.R.
S 2.202 to issue a shcw cause order to suspend Construction Permit CPPR-140 for Callaway Plant, Unit 2.
As grounds for its request, the PSC states that a preliminary re-port by the PSC's staff indicates the peak demand forecast of the Ccmpany may be in serioua error.
The PSC staff's forecast of the Company's peak demand in 1987 is 7030 MW.
The Company's own forecast of the most likely peak demand in 1987 is 7790 MW (the PSC staff's report erroneously states the Company's fore-cast to be 7930 MW).
The standards applicable to a request to suspend a con-struction permit on the basis of a revised load forecast were well stated in the April 13, 1979 Director's Denial of a 10 C.F.R.
S 2.206 request to suspend Georgia Power Company's construction permits for the Alvin W. Vogtle Nuclear Plant, Unit Nos. 1 and 2, docket nos. 50-424 and 50-425.
As the Director there stated, 1126 328
SHAW, PITTMAN, POTTS & TROWBRIDGE Dr. Harold R. Denton September 28, 1979 Page Five the question of need for the generating capacity of a nuclear power plant is relevant to the Commission's responsibilities under the National Environmental Policy Act of 1969, where it must balance the benefits of its actions (here, the electricity to be generated) against the environmental costs.
Director's Denial in Vogtle, 9 N.R.C.
(1979), slip op. at 2,3.
The NRC's staff and the Atomic Safety and Licensing Board, in the proceedings described above to consider the Com-pany's construction permit application, found that the electricity to be generated by Unit 2 of the Callaway Plant is needed, and that its benefits outweighed the environmental costs.
This finding, undisturbed by the Atomic Safety and Licensing Appeal Board, re-presents the Commission's final action on the question, reached through its adjudicatory process.
The PSC now seeks to revive the question of the "need for power" from Callaway Plant, Unit 2 outside of the context of a construction permit or operating license proceeding on that unit.
The implication in the PSC's Request is that circumstances have changed so dramatically since the Commission issued the construction permit for Unit 2 that a new proceeding should be held to consider the issue of its need.
NEPA does not require that decisions based on environ-mental impact statements be reconsidered whenever information developed subsequent to the action becomes available.
Ogunquit Village Corp. v.
Davis, 553 F.2d 243 (1st Cir. 1977).
While the Commission clearly has the authority to reconsider its decision, it is unnecessary for an agency to reopen the NEPA record unless the new information would clearly mandate a change in result.
Greene County Planning Board v.
Federal Power Commission, 559 F.2d 1227 (2nd Cir. 1976), cert. denied, 434 U.S. 1086 (1978).
Here, even accepting for the moment the validity of the PSC staff's preliminary forecast, the disagreement in 1987 peak demand is only 760 MW, whereas this 1150 MW facility, if it is *_ censed tc do so, is expected to operate for over 30 years.
This new information, then, would nut clearly mandate a change in the Commission's decision and does not justify the reopening of the NEPA record.
The PSC asserts, in its Request, that "the requested suspension will not act to the detriment of the Company."
We disagree; but, in any case, the burden here is on the moving party to persuade the Commission, after a decision has been i126 329
SHAW, PITTMAN, POTTS & TROWBRIDGE Dr. Harold R.
Denton September 28, 1979 Page Six rendered, to reconsider the need for power issue on the basis of new evidence.
This burden has been described by the Atomic Safety and Licensing Appeal Board as a " difficult" one.
Cleve-land Electric Illuminating Company, et al. (Perry Nuclear Power Plant, Units 1 and 2) ALAB-443, 6 N.R.C.
741, 750-751 (1977)
(denying a motion to reopen the record on need for power).
It is not the Company's burden to prove that it would not be harmed by the requested suspension.
Here, the moving party has not met its burden.
IV.
Conclusions and Recommendations The PSC, as we have stated above, issued a certificate of public convenience and necessity for Callaway Plant, Unit 2.
The PSC, as stated at page 3 of its Request, asserts the authority to withdraw the certificate upon a finding that Unit 2 is not needed to maintain the Company's electric plant for safe and adequate service at reasonable rates.
The PSC, upon its own motion, has ordered an investigation and set hearings on the Company's generation expansion program.
The hearings are to commence on April 7, 1980.
In view of the preliminary nature of the PSC staff's report and the schedule set by the PSC to consider the matter, it is unclear, from the body of the Request, why this Commission should be asked at this time to suspend the construction permit for Callaway Plant, Unit 2.
Nevertheless, the Commission has given " great weight" to evidence introduced by a state public utilities commission, recognizing the expertise of such bodies and their legal duty to insure that the utilities within their jurisdiction fulfill the legal obligation to meet customer demands.
See Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1,
2, 3 and 4), ALAB-490, 8 N.R.C.
234, 240-241 (1978), aff'd, CLI-79 __, 9 N.R.C.
(May 2, 1979) (denying motion to reopen record on need for power).
Here, if the Missouri Public Service Comission decides to rescind the certificate it issued for Unit 2, the question will be decided and there would be no purpose served by a reopened NEPA proceeding to duplicate the litigation in both state and federal forums.
I126 330
SHAW, PITTMAN, POTTS & TROWBRIDGE Dr. Harold R.
Denton September 28, 1979 Page Seven In a similar case, Rochester Gas and Electric Corpora-tion, et al. (Sterling Power Project, Nuclear Unit No. 1),
ALAB-502, 8 N.R.C.
383 (1978), the Atomic Safety and Licensing Appeal Board was asked to reopen the record on need for power on the basis of a new state report indicating lower demand growth.
Similarly, the New York State Board on Electric Generation Siting and the Environment, which earlier had issued the requisite state certificate for the plant, had entered an order directing a reopening of its proceeding to reconsider the issue of the need for the plant.
8 N.R.C.
at 387-388.
The Appeal Board, while noting that it was under no legal compulsion to do so, decided to withhold its own decision on the need for power question to await the siting board's ruling:
[I] t appears to us that little useful purpose would be served were we now to undertake a duplication of the inquiry being made by the State body into the significance of the disclosures in the Section 149-b report.
We have been given no cause to believe that the siting board.
lacks either the capability or the willingness to explore the matter thoroughly and to make an informed judgment on it.
[A]lthough in many situa' ions a deferral of one licensing body's decision to await that of another might cause prejudicial delay, we perceive no significant risk of that happening in this instance.
Once the siting board has ruled, we will expect the applicants promptly to bring its decision to our attention.
Should the decision be adverse to the applicants (and not overturned on any subsequent judicial review which might be available), that most likely would be the end of the matter.
For, according to our understanding of New York law, the grant by the siting board of a certificate of environmental compatibility and public need is a condition precedent to plant construction no matter what this Commission might conclude regarding the need for the plant.
8 N.R.C. at 388-389 (footnote omitted).
We believe that the situation is the same in Missouri, that the principles articulated by the Appeal Board in Sterling are wise, and that the Director should apply them to the instant request by the Missouri Public Service Conmission.
Ii26 ssi 77
SHAW, PITTMAN, POTTS & TROWBRIDGE Dr. Harold R.
Denton September 28, 1979 Page Eight Union Electric Company recommends that the Director defer any ruling on the Request under 10 C.F.R.
S 2.206 until the Missouri Public Service Commission reaches its own determination, in the proceeding it has initiated, on Callaway Plant, Unit 2.
Sincerely, L4AX Gerald Charnoff Thomas A.
Baxter Counsel for Union Electric Company cc:
Mr. John K.
Bryan Vice President, Nuclear Union Electric Company P.O. Box 149 St. Louis, Missouri 63166 Mr. Nicholas A. Petrick Executive Director SNUPPS P.O.
Box 607 15740 Shady Grove Road Gaithersburg, Maryland 20760 Mr. Terry Rehma A-95 Coordinator Office of Administration Division of State Planning & Analysis P.O.
Box 809, State Capitol Jefferson City, Missouri 65101 Treva J.
Hearne, Esq.
Assistant General Counsel Missouri Public Service Commission P.O.
Box 360 Jefferson City, Missouri 65101 Honorable Paul H. Murphy Presidinq Judge Callaway County Court Fulton, Missouri 65251 1126 332
SHAW, PliTMAN, POTTS & TROWBRIDGE Dr. Harold R.
Denton September 28, 1979 Page Nine EIS coordinator, Region VII U.S.
Environmental Protection Agency 1735 Baltimore Avenue Kansas City, Missouri 64108 Mr. Norton Savage Economic Regulatory Administration Power Supply & Reliability Division U.S.
Deparment of Energy (RG-752) 1726 M Street, N.W.,
Room 850 Washington, D.C.
20036 1126 333