ML19253C206
| ML19253C206 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 11/07/1979 |
| From: | Gallen K, Hiestand O DAIRYLAND POWER COOPERATIVE, DUKE POWER CO., MORGAN, LEWIS & BOCKIUS |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7911300174 | |
| Download: ML19253C206 (32) | |
Text
N IC DOCUyzy y.
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- 1 4
UNITED STATES OF AMERICA
[3 d
- \\?/ '
- @4 NUCLEAR REGULATORY COMMISSION In the Matter of
)
Docket No. 50-409
)
Amendment to DAIRYLAND POWER COOPERATIVE
)
Provisional Operating
)
License No. DPR-45 (La Crosse 3 oiling Water Reactor)
)
(Spent Fuel Pool)
APPLICANT'S REPLY TO CREC'S PROPOSED FINDINGS OF FACT Pursuant to 10 C.F.R. 5 2.754, Dairyland Power Cooperative (Dairyland or DPC), the Applicant for an amendment to Provisional Operating License No. DPR-45 in the above-refer-enced proceeding, hereby submits its response to the proposed findings of fact filed by the Coulee Region Energy Coalition (CREC) on the need for LACBWR, as follows:
INTRODUCTION As discussed in some detail in the brief which accompanied Dairyland's proposed findings of fact on the need for LACBWR, the need for a nuclear power plant can be estab-lished for NRC licensing purposes in a variety of ways, e.g.,
(1) if a eanservative forecast of electrical power demand for the servir.e area in question indicates that the plant may be needed te enable the utility to meet this demand, (2) if the operation or availability of the plant will enhance system 1440 150 G
"22300 / 7 4
-2 reliability, or (3) if the utilization or availability of the plant for use will enable the utility to reduce system dependence 1/
cn other interruptible sources of fuel supply. -
At the evidentiary hearings held in La Crosse, Wisconsin on October 3-6, 1979, witnesses for Dairyland Power Cooperative 2/
who are knowledgeable and experienced in each of these areas -
testified that LACBWR is needeu until such time as NRC issues a final determination in the pending full term operating license proceeding for LACBWR in order to (1) enable Dairyland to meet the future electrical energy needs of its member cooperatives and the minimum reserve requirements of the Mid-Continent Area Power Pool (MAPP), (2) enhance the reliability of the DPC system.
by protecting against outages at other generating facilities and
-1/
See Applicant's Brief In Support Of Its Proposed Findings DT Fact On The Need For LACBWR And Conclusions Of Law (Oct. 16, 1979) at 3-5 [hcreinafter Dairyland Brief].
-2/
Dairyland's witnesses included (a) John Parkyn, the Assis-tant Superintendent of LACBWR who is responsible for LACBWR plant operations, maintenance, and training, (b) Jack Leifer, the Assistant General Manager of the DPC System Engineering Group, who is directly responsible for the planning, engi-neering, and construction of all of DPC's transr.ission and power gec.eration facilities and substations, (and who repre-sents DPC in various inter-utility planning groups such as MAPP), (c) James Sherwood, the Assistant General Manager of the DPC Administrative Services Group, who is responsible for, inter alia, purchasing and marketing for DPC, and (d) Ralph Stone, the Superintendent of System Operations and Planning for Northern States Power - Wisconsin, who is re-sponsible for transmission planning and the systems opera-tions center for Northern States Power.
See generally, Tr.
442, 872.
1440 151
-3 damaged transmission lines, and (3) reduce DPC's dependence 3/
on coal' and oil to meet its system needs. -
The direct testimony of the Dairyland witnesses on the need for LACBWR was relevant, material, probative, and within their areas of personal knowledge and/or expertise.
In marked contrast, CREC presented no affirmative evidence, relying instead in toto upon cross-exac. nation of Dairyland's witnesses in an attempt to discredit their testimony and make CREC's own case on the need issue.
Even a cursory review of the record demonstrates that this attempt fell far short of the mark.
During cross-examination CREC often wandered off into peripheral issues which have, at best, only a tenuous connection with the matters actually in controversy in this proceeding or the resolution of which goes well beyond the limited scope of this proceeding.
In any event, CREC's cross-examination in no way diminished the credibility of these witnesses or undermined the basic validity of their direct testimony on the need for LACBWR.
In fact, in most instances, this cross-examination only served to bolater the direct testimony of the witnesses.
Perhaps recog-nizing that the record itself is utterly devoid of support for its position on the need for LACBWR, many of the findings of fact that CREC has proposed can best be characterized as (a) based upon the questions that were asked rather than the responses
-3/
See Dairyland Brief at 7-11; Applicant's Proposed Findings Ur Fact On The Need For LACBWR (Oct. 16, 1979) Nos. 1-61
[ hereinafter DPC Findings of Fact].
1440 152
-4 that were given, (b) based upon statements taken out of context or without the qualifications containec in the witnesses' re-sponses, (c) pertaining to matters which are really not relevant to a determination on che need for LACBWR, or (d) 44 dressing matters which are not contained in the evidentiary record in this proceeding.
Consequently, the bulk of CREC's proposed findings of fact must be rejected out of hand as irrelevant, immaterial, or unsupported by the record.
Dairyland therefore obj ects to all of the specific findings proposed by CREC, other than the original DPC findings adopted by CREC.
Fortunately, all of CREC's pro-posed findings can be conveniently categorized into several basic groups, each dealing with a discrete aspect of the need for LACBWR.
Rather than attempting to rebut each individual finding proposed by CREC, Dairyland will address each of these groups of findings below:
I.
The Need For LACBWR To Meet Future Generating Capacity Requirements On The DPC System (CREC Findings Nos. 1-33)
In its proposed findings of fact relating to electrical load forecast for the DPC system, CREC selectively downplays the significance of some of the factors which were taken into account in the load forecasts prepared by Dairyland and overstates the significance of others in order to reconstruct the load forecast more to CREC's liking and arrive at the conclusion that DPC does not need the generating capacity provided 'ay LACBWR in order to meet its systems needs during the early 1980s.
CREC's attempted 1440 153
-5 manipulation of the evidence to suit it's convenience should be disrega'rded by the Board.
Dairyland's load forecast was prepared by the personnel responsible for insuring that sufficient gener-ating capacit.y is available on the DPC system r.o meet future system needs and employed the calculational techniques traditionally employed in making such forecasts.
Significantly, at the hearings CREC presented no expert testimony or alterr.ative forecasts con-cerning the specific energy requirements of the DPC system during this period.
The Dairyland forecast shows that a capacity deficit of 11 MW will exist on the DPC system in 1982 and that, without LACBWR, this deficit would increase to 57 MW.
(DPC Findings Nos.
15 and 16.)
This forecast is based upon a compilation of the energy requirements of the DPC member distribution cooperatives.
(Tr. 806.)
Dairyland adjusts the system-wide forecast downward by making certain reasonable assumptions concerning factors affecting the proj ected demand over the next few years (e.g.,
energy conser-vation, load management).
(Tr. 809.)
If conservative assumptions had been employed, this deficit would be even higher.
As a result, this forecast is entitled to substantial, if not conclusive, weight in this proceeding.
As the Commission itself recently noted in Carolina Power and Light Co. (Shearon Harris 1 - 4),
Docket Nos. 50-400 through 50-403, (Memorandum and Order May 2, 1979) the general rule applicable to cases involving differences in demand forecasts stated in Nine Mile Point still applies today, j440 \\54
-6 1.e.,
a substantial margin of uncertainty is inherent in any forecast of future electric power demand and the NRC should generally defer to conservative load forecasts by the utility in question in order to insure that the utility will be able to meet " unexpectedly high" demands.
See also Dairyland's Brief at 3-5.
Moreover, CREC conveniently ignores (a) the fact that the 15% MAPP reserve margin in generating capacity is a minimum requirement and that prudent utility management would dictate that an even greater reserve margin would be desirable, and (b) the fact that any excess generating capacity on t'te DPC system would become available to meet the energy needs of other utilities interconnected with the DPC system and generate additional revenues which would benefit DPC and its member co-ops.
(Panel Testimony,
- p. 13.)
Some of the specific ffidings on the load forecast issue which CREC has proposed are addre sed below:
A.
Availability of Generating Capacity Presently Committed To CPA And The Addition Of JPM-1 (CREC Findings Nos. 5-9)
One half of the total generating capacity of Genca No. 3 (175 MW) is contracted to Cooperative Power Association (CPA) for the life of the plant.
(Panel Testimony, p. 4.)
CREC's Findings Nos. 5-7 suggesc that there will be a possible reduction in CPA's need for Genoa No. 3's capacity and that CPA would be inclined to sell that capacity to DPC.
There is no support in the record for either conclusion.
Further, the record is devoid 1440 I55
-7 of any evidence regarding the costs of the CPA units at Coal Creek or ths.t power from these units will have a lower incre-mental cost than power from DPC's Genoa No. 3.
Mr. Leifer testified that CPA has used its one-half of Genoa No. 3's generating capacity since 1972. (Tr. 813.)
DPC has even inquired whether CPA would be willing to surrender its rights under the contract, but CPA has refused to do so.
(Tr. 816.)
While CPA has sold part of its capacity as " economy energy,"
DPC has repurchased very little of CPA's capacity. (Tr. 815.)
Economy energy purchases are for short, interruptible periods, and are not available to replace a generating plant that is out of service.
(Tr. 783.)
There is no basis in the record to con-clude that DPC could rely on the future availability of CPA's capacity from Genoa No. 3. (Tr. 814-15.)
CREC asserts that the addition of two new generating units in the CPA system might allow CPA to sell DPC capacity from Genoa No. 3.
(CREC Finding No. 7.)
Mr. Leifer clearly and expressly denied that CPA would require less output from Genoa hb, 3 and testified that the new generating units would be used to replace capacity that CPA presently purchases.
(Tr. 859-60.)
Moreover, the record shows that the bulk of the additional gener-ating capacity which will be provided by the JPM-1 plant is al-ready committed to Northern States Power and is not available as a replacement for LACBWR.
(Tr. 656.)
1440 156
-8 B.
Growth Of DPC's Demana Due To The Addition Of Two Distribution Cooperatives (CREC Findingc Nos. 11-13, 16, 26)
CREC correctly states that a small part of the increase in demand experienced by DPC between the winters of 1974-75 and 1976-77 was due to the addition of two distribution cooperatives to the DPC system.
(CREC Finding No. 12; Tr. 794.)
For some unexplained reason, however, CREC feels that DPC's annual growth should be " corrected" for this factor.
(CREC Findings Nos. 13, 16, 26.)
Nowhere does the record indicate that the addition of distribution cooperatives is an anomaly in DPC's growth pattern.
Absent such a showing, there is no reason in any review of DPC's recent growth pattern to disregard the growth that has, in fact, occurred.
C.
Effects Of Weather On DPC's Growth (CREC Findings Nos. 14, 17-20)
DPC's energy requirements during the 1974-78 period in-creased at an annual rate of 6.9%.
(Tr. 771; DPC Finding No. 11.)
CREC asserts that this rate would have been lower if it had been " corrected" for weather differences.
(CREC Finding No. 17.)
The record does not support such a conclusion.
Nowhere does the record indicate that an energy requirement growth rate should be
" corrected" for weather, how it should be " corrected," or whether the " correction" would raise or lower the growth rate in this case.
It would stand to reason that if recent experience has demonstrated that a utility is sensitive to fluctuations in the 1440 \\bl
-9 weather, this factor should be exaggerated rather than minimized.
Otherwfse, a utility may not be able to adequately respond to a severe winter.
(Tr. 807-08, 853.)
CREC has missed the import of standard heating and cooling degree days.
The " normal" number of degree days is a long-term average, not the number which exists in a particular year. (Tr. 493.)
As CREC pointed out, some years in the 1974-78 period were above the standard and some were below.
(CREC Finding No. 17; Tr. 853.)
There is no reason to give these fluctuations special treatment.
CREC Finding No. 19 states that the increase in energy sales from September 1978 to August 1979 of 6.8% was due, in part, to a " higher-than-average-degree day winter."
This assertion is clearly not supported by the record.
Mr. Leifer testified that the previous winter, 1977-78, "was e.ually or slightly worse in terms of heating degree days."
(Tr. 493.)
Short term dif-ferences in energy growth rates -- such as in the months immediately preceeding October 1979 -- are not significant from the standpoint of long t'rm growth.
(Tr. 492-493.)
D.
Effect Of A Recession On DPC's Growth (CREC Findings Nos. 21-23)
CREC has asserted that DPC's growth in sales and peak demand will decline as a result of the " anticipated national recession now looming."
(CREC Finding No. 22.)
Further, CREC states that it is " highly unlikely" that a consumer number growth 1440 158
-10 of 3.5% per annum an be maintained through the 1980-82 period becausq of the "clcuded economic outlook" and the " suburban character" of that sales growth.
(CREC Finding No. 23.)
The record contradicts both of these conclusions and nowhere is it established that there is or will be a recession.
The only testimony that addressed the effect of a recession on DPC was Mr. Leifer's.
(Tr. 493-96, 809-10.)
When asked whether DPC would be affected by a recession, Mr. Leifer replied that the rural economy that DPC serves will not be affected nearly as much as the national economy or highly in-dustrialized areas.
In fact, Mr. Leifer stated that in many cases rural production increases during a national recession.
(Tr. 493-94.)
Mr. Leifer also testified that MAPP had predicted that DPC's demand would grow faster than the average within MAPP because the rural areas were growing faster than urban areas.
The major utilitics in MAPP serve primarily urban areas.
(Tr.
809-10.)
No testimony was offered concerning the impact of a recession on the growth of suburban communities. (Tr. 494-96.)
E.
Comparison Of A 4.0% Annual Peak Demand Growth Rate In Western Wisconsin With DPC's 6.6% Peak Demand Growth Rate (CREC Finding No. 25)
CREC Exhibit 1 indicates that the Wisconsin Public Service Commission has concluded that Northern States Power Com-pany, Lake Superior District Power Company, CPA, and DPC, have not established that the coincident peak demand annual growth rate would be greater than 4.0% in western Wiscensin.
CREC asserts
\\440
\\59
-11 that this is inconsistent with DPC's annual growth rate of
- 6. 67..
.(CREC Finding No. 25.)
The record shows that it is not inconsistent.
The testimony indicated that the growth rate of several of the other utilities serving western Wisconsin would be lower than DPC's rate.
(Tr. 812.)
Thus, DPC's higher growth rate may have been offset against their lower rate by the PSC to arrive at the 4.07..
Moreover, the DPC system serves other areas besides western Wisconsin (i.e., portions of Minnesota, Iowa, and Illinois).
(Panel Testimony, p. 2. )
In any event, Mr. Leifer testified that the Wisconsin PSC finding was not strictly appli-cable to DPC," and further that DPC did not agree with the finding.
(Tr. 812.) Finally, the authors of the PSC finding were not offered for cross-examination and no testimony was proffered with respect to the basis for or validity of that finding.
F.
DPC's Deficiency In Accredited Capacity (CREC Findings Nos. 26-33)
Based upon their Findings Nos. 11-25, CREC concludes that DPC will not have a deficiency in accredited capacity in 1982-83.
(CREC Findings Nos. 26-33.)
As demonstrated above, most of these findings are either erroneous or not supported by the record.
CREC has chosen to manipulate the past history of DPC's growth by excluding system expansion, making certain ad-justments for weather, and assuming that a recession will occur.
CREC's convoluted mathematical adjustments of DPC's earlier growth 1440 160
-12 rates (CREC Findings Nos. 26-27) have no bearing on DPC's current growth
- projections.
DPC does not project its future growth by extrapolating a historical growth rate.
Projections of growth rates are made by DPC's twenty-nine member distribution coopera-tives based on detailed power requirements studies.
DPC compiles these projections on a system-wide basis pursuant to the pro-cedures and requirements of the Rural Electrification Administra-tion (Tr. 806) and makes certain downward adjustments to account for energy conservation measures and load management practices.
(Tr. 809.)
A recent analysis by the National Economic Research Associates has confirmed the validity of the DPC forecasts and forecasting methods.
(Tr. 809.)
DPC arrived at its projected growth rate of 6.6% in this manner and this growth rate forms the basis for the predicted 11 MW deficit (with LACBWR) and 57 MW deficit (without LACBWR) on the DPC system in 1983-84 (Tr. 806.)
Mr. Leifer also testified that on a long term basis, after the next four or five years, DPC's growth forecast "is something like 5.5 percent over the next 10 years."
(Tr. 811.)
CREC never challenged the information used by DPC in making either its short term or long term forecasts, and the record does not support its attempt to contradict thosa forecasts by comparing the actual growth rates over the past several years.
In effect, CREC is attempting an apples and oranges comparison.
\\440 \\6\\
-13 CREC finding No. 32 asserts that if DPC had a deficiency of acenedited capacity, DPC could readily purchase " replacement capacity" to substitute for LACBWR at a cost less than the average cost of power generated by DPC's coal-fired plants, and could make up summer deficiencies by " forgoing" sales to Northern States.
However, CREC ignores the fact that the costs of purchasing replacement power from MAPP will rise considerably over the next several years (Tr. 510-511) and that DPC will be unable to purchase replacement power from the eastern Wisconsin utilities (Tr. 795-798).
The record shows that DPC paid as much as 71 mils per KWH for replacement power in November 1978 (Tr.
789-90), which is considerably more than the average cost of DPC's coal-fired plants.
Mr. Leifer further testified that it normally was not cheaper to buy energy from other utilities than to generate such energy at DPC's plants.
(Tr. 519.)
With respect to " forgoing" sales to Northern States, CREC conveniently ignores the fact that DPC has a contractual commitment to make those sales.
CREC's assertion (Proposed Finding No. 76) that DPC could replace LACBWR by " economy energy" purchases has no foundation in fact.
The record clearly establishes that " economy energy" is available only on short notice, and for brief, interruptible periods.
(Tr. 780-81.)
While CREC, for the first time, acknowledges that " economy energy" must involve " synchronized" units, it nevertheless tries to create the illusion that such compatibility exists throughout the MAPP pool and could be utilized routinely to supply the La Crosse ser-vice area.
The evidence does not suppor; this assertion by CREC.
(Tr. 783.)
440 162
-14 II.
The Need For LACBWR To Reduce The Dependence Of The DPC System On Coal The record reflects the fact that LACBWR is the only base-load plant on the DPC system which is not a coal-fired unit and that the continued availability of LACBWR reduces DPC's de-pendence on coal and lessens the vulnerability of the DPC system to interruptions which could be caused by coal strikes and severe weather conditions.
See DPC Findings Nos. 3-7, 34-37.
Nowhere in its proposed findings of fact does CREC dispute this aspect of the need for LACBWR.
While CREC may simply choose to ignore this point, this Board cannot do so.
The fact that the operation and availability of a nuclear power plant will enable a utility to reduce its dependence on another source of fuel to meet virtually all the needs of its system constitutes an independent and legally cognizable basis upcn which a finding of need can, and should, be made in an NRC licensing proceeding -- irrespective of whether load forecasts show an actual need for the plant.
See New England Coalition For Nuclear Pollution v. USNRC, 582 F.2d 87, 96-98 (1st Cir. 1978); Mid-America Coalition For Energy Alternatives v. NRC, No. 78-1294, 12 ERC 1719 (D.C. Cir. Jan. 15, 1979) (per curium).
See also Dairyland's Brief at 5-6.
III. The Need For LACBWR To, Enhance System Reliability And Protect 3rg. inst Low Voltages And Damaged Transmission Lines (CREC Findings Nos. 34-75)
The witnesses testified that the continued operation and availability of LACBWR enhanced the reliability of the DPC 1440 163
-15 system by providing additional voltage support for one of the major eransmission lines into the City of La Crosse and allevi-ating the impact of low voltages and overloads on this line, as well as outages on other transmission lines into the La Crosse area.
The witnesses also testified that LACBWR also reduces the need to run the high cost oil-fired French Island peaking combustion turbines operated by Northern States Power.
See generally DPC Findings Nos. 38-61.
While CREC acknowledges there is a " low voltage" problem in the La Crosse region, it variously asserts that the problems would develop more slowly if the growth rate is less than DPC's forecast (CREC Findings Nos. 34-37); that it could be solved 'cy completic 1 of a planned 161 KV transmission line from Lansing, Iowa, to Genoa (CREC Findings Nos. 38-39); that maintenance on Genoa No. 3 will not be scheduled during winter peak period (CREC Finding No. 41); that the percentage of forced outages on the transmission lines is small (CREC Findings Nos. 42-48 and 56-60); that the problems will be limited by the additional capacitors being installed at the French Island station (CREC Finding No. 49); that the problem will be reduced when the John P. Madgett (JPM) plant comes on line (CREC Finding No. 50); and that further help will be provided by the Alma-Tremval transmission line.
(CREC Finding No. 51.)
These asser-tions either ignore, contradict, or distort the testimony in the record.
1440 164
-16 In its proposed findings Nos. 35-40, CREC attempts to tie *the need for LACBWR to provide this voltage support and protection against trar smission line outages into the projected load growth for the DPC system.
In the first place, there is no evidence indicating that DPC's projected growth rate is unrealistic.
Moreover, CREC conveniently ignores the fact that overloads and transmission line outages are occuring on the DPC system at the present time and can be expected to continue to occur in the future.
LACBWR currently provides this support and protection and can be expected to continue to do so in the future.
However, DPC does concede that the problem will be exacerbated and the need for LACBWR to protect and enhance system reliability will be increased as system load growth increases.
CREC's bald assertion that the Lansing-Genoa transmission line will likely be in service before the 1981-82 winter period is conjecture that simply is not supported by the evidence.
Mr. Stone testified that the Lansing-Genoa 161 KV transmission line could not be in service before August 1, 1981 even "if everything went just right."
(Tr. 877.)
Mr. Leifer testified that "we'll be hard pressed to get the line in service much be-fore" the end of 1982.
(Tr. 592.)
With respect to maintenance on Genoa No. 3, Mr. Leifer testified it was scheduled as part of a coordinated MAPP pool plan, and he could not predict the time of year when this main-tenance would be performed.
He further testified it was not always possible to do maintenance in the Spring.
(Tr. 865-866.)
410 i85
-17 CREC's findings only discuss forced outages on the transmission lines,'although Mr. Leifer testified that both " momentary" and "sched: led" outages affected the reliability of service and in-volved the need to operate the French Island combustion turbines to protect the La Crosse area load.
(Tr. 636.)
He further testified that by the summer of 1981 the low voltage condition could exist with just Genoa No. 3 out of service "and no trans-mission line tripping."
(Tr. 583.)
With respect to the capaci-tors, Mr. Leifer testified that 50 megavag of capacitors has been installed for some time and the planned 80 megavags would only help alleviate the problem for another year.
(Tr 601.)
The record establishes that the JPM unit would not alleviate this problem be-cause of transmission line limitations.
(Tr. 839, Stone Testimony,
- p. 2.)
Mr. Leifer testified that JPM will have little impact on the La Crosse area and, in fact, may aggravate the problem.
(Tr.
640-61.)
Similarly, the Alma-Tremval transmission line will have little impact on the situation.
(Tr. 641.)
CREC also seems to suggest that the likelihood of transmission line outages is sufficiently low that there is no need for the protection afforded by LACBWR in this regard. (CREC Findings Nos. 41-60.)
As noted perviously, CREC ignores the fact that " momentary" and " scheduled" outages, as well as "ex-tended" outages, affect the need to operate LACBWR and the French Island turbines to protect service to the La Crosse area.
CREC's probability theories on the transmission line outages have no i440 166
-18 basis la the record.
In any event, the record clearly does not support CREC's conclusion that not more than 50 hours5.787037e-4 days <br />0.0139 hours <br />8.267196e-5 weeks <br />1.9025e-5 months <br /> of trans-mission line outage is likely to occur while load is over 85%
of annual peak during 1980-81.
The fact remains that historically one sustained outage occurs per every 100 miles of 161 KV trans-mission lines, that these outages have taken as long as 1-1/2 weeks to repair, and that since there are 320 miles of transmission lines serving the La Crosse area, DPC can expect over 3 such extended outages per year on these lines, as well as numerous other momen-tary and scheduled outages.
(DPC Findings Nos. 57-58; Tr. 597-598.)
Fortunately for DPC's customers who are dependent upon continued electrical service, CREC is not responsible for main-taining service in the event of transmission line outages.
How-ever, DPC is responsible and it is precisely because of this re-sponsibility that DPC needs to keep LACBWR available to protect its customers against the impact of these outages.
CREC acknowledges the need to use the French Island combustion turbines, but asserts it is possible to use smaller oil steam units; that it is unwise to run the French Island com-bustion turbines to protect against transmission outages, and that the additional oil consumption that will result if LAC 3WR is shut down will be due to " unjustified excessive uses of oil."
(CREC Findings 52-55, 62, 65.)
jkkb
-19 There is no testimony of record to support these con-clusiods.
CREC offered no witnesses and none of the citations to the transcript support the propositions advanced by the CREC findings.
It is obvious that CREC, without offering testimony under oath and subject to cross-examination, is now attempting to foist on the Board its own beliefs and suppositions in the form of argumentative findings which have no record basis.
More-over, CREC's unfounded assertions to the contrary notwithstanding, it is not " dubious," but rather sound utility practice, to run the French Island turbines to protect against transmission line outages, since the effects of these outages are generally much more widespread and severe than those associated with comentary outages on distribution systems caused by wind and thunderstorm related failures.
(Compare CREC Finding No. 54 citing Tr. 649 with Ir. 649.)
CREC would have the Board find that LACBWR is not a reliable source of back-up capacity based on its past capacity factor, operating restrictions, refueling and scheduled outages, and a comparison of LACBWR's " forced outages" with that of the transmission lines supporting the La Crosse area.
(CREC Findings Nos. 66-75.)
The assumed LACBWR capacity factor of 40% which CREC is relying on was employed by DPC in its cost calculations in order to understate the cost savings associated with keeping
}kkO
-20 LACBWR operational and avoid accusations that these savings were overstated because they were based upon an overly optimistic capacity factor.
This 40% capacity factor is therefore ex-tremely conservative.
The actual historical capacity factor is almost 50%.
Moreover, the testimony shows that the events and conditions which previously affected LACBWR's operational avail-ability have been corrected and there is no reason to believe that it will not operate with an even more favorable capacity and availability factor over the next several years.
(DPC Panel Testimony, p. 11.)
In this regard, the two major factors affecting LACBWR's previous availability were the completion of a mid-cycle modification that was contemplated at the time the nuclear plant was transferred from AEC to DPC in 1973 (Tr. 840) and a fuel fail-ure problem which has been virtually eliminated under the new technical specifications.
(Tr. 664-668.)
In summary then, the evidence shows that LACBWR will be a reliable source of back-up capacity to protect against low voltages caused by outages at Genoa No. 3 or on transmission lines.
See DPC Findings Nos. 19, 87-90.
In doing so, LACBWR will also generate considerable savings for DPC and Northern States Power by eliminating the need to run the high cost French Island t:trbines.
See DPC Findings Nos. 47-52.
z A jS 'b
\\
b
-21 IV.
The 'asts and Revenues Foregone By Shutdown Exceed The Costa Associated With Operation Of LACBWR (CREC Findin;;s Nds.76-116)
The record shows that the costs associated with the shutdown of LACBWR would greatly exceed the costs associated with continuing to operate the plant.
(DPC Findings Nos. 73-90.)
The replacement power costs alone net out to over $7 million.
(DI'C Finding s No s. 18, 75, and 76. )
See generally DPC Brief at 8-10.
CREC never comes to grips with the real cost issues in this case (i.e., comparing the costs of operating LACBWR until a decision is reached in the FTOL proceeding with the costs (including revenues foregone) associated with placing the plant-in a shutdown condition).
CREC blithely assumes that DPC would be able to replace the power generated from LACBWR with economy energy purchased from other MAPP members or power generated from its own coal-fired plants.
(CREC Findings Nos. 76-84.)
- However, as discussed earlier, economy energy rates will not be available (Tr. 784) and any excess capacity from DPC's coal-fired units will either be committed elsewhere or unavailable due to trans-mission line limitations.
Having failed to rebut or even seriously contest DPC's evidence of increased personnel retention costs and increased simulator training costs resulting from a shutdown presented by Dairyland officials responsible for personnel administration and training at the hearings, CREC ncw asks this Board to dismiss this evidence as " unproven," " unconvincing," or " incredible."
(See e.g.,
CREC Findings Nos. 85, 86 and 90.)
This the Board simply 1440 170
-22 cannot do.
While DPC agrees that it would incur additional expenses if it has to store on site the fuel assemblies now stored at Morris, the fact that this expense is in part "attri-butable to DPC's own decision to fill up" the capacity of the existing pool is irrelevant.
(See CREC Findings Nos. 87-88.)
DPC's customers have received the benefit of the power generated by continued operation of LACBWR during the present operating cycle as a result of this decision.
CREC's suggestion that the costs associated with the shutdown of LACBWR could have been avoided if DPC had voluntarily reduced operation of LACBWR until NRC acted on the DPC spent fuel pool expansion amendment applica-tion is also irrelevant and unrealistic.
It is ludicrous to suggest that DPC should have, or could have, removed an opera-tional unit from service at a time when DPC's growth rate was increasing and DPC was forced to purchase power to meet its MAPP obligations, particularly since LACBWR has the lowes? fuel cost of any base-load plant on the DPC system.
CREC also asserts that the testimony concerning depre-ciation and interest costs, insurance costs, taxation, and ad-ministrative, general, and other costs should be rejected by the Board (CREC Findings Nos. 91-99) because the witnesses were not qualified to give expert testimony on this matter or the evidence was " contrary to proper accounting practice."
CREC presented no evidence as to what " proper" accounting practice in these areas 1440 171
-23 consists of either by way of direct evidence or cross-examination.
Whether the witnesses themselves may or may not be tax, insurance, or accounting experts is irrelevant.
The figures which the wit-nesses presented are based upon DPC's existing books and records and DPC's current accounting practices, (which are in accordance with REA-approved accounting procedures and audited by Arthur Andersen & Co.) (Tr. 771-76), and certain reascaable assumptions concerning a potential shutdown situation made by DPC's accountants, managers, and production personnel.
This evidence is therefore relevant, probative, and entitled tc substantial weight.
Even if different assumptions were utilized concerning the allocation of these costs and the costs associated with shut-down were substantially reduced, the overall record amply demon-strates that there is a pronounced economic advantage in keeping LACBWR in operation, rather than shutting it down.
(Panel Testi-many, Exh. 3, Tr. 672.)
As for fuel costs, DPC has estimated that the cold shut-down of LACBWR would result in a nuclear fuel burn-up cost savings of $4,944,000.
(Panel Testimony, Exh. 4.)
DPC conducts its nuclear fuel cost accounting in accordance with REA-approved accounting pro-cedures, a fact certified by an audit conducted by Arthur Anderson
& Co. (Tr. 771-776.)
CREC asserts that this is not sufficient to meet DPC's burden of proof (CREC Finding No. 112), yet DPC's testi-many remains uncontraverted.
1440 172
-24 In its findings CREC has characteristically exag-gerated the fuel costs for LACBWR.
CREC's Findings Nos. 106-07 assert that LACBWR's stainless steel-clad fuel requires more enrichment than the "more-common" zircalloy-clad fuel in other reactors.
There is nothing in the portion of the record to which CREC alludes in support of this finding that even remotely suggests that zircalloy-clad fuel is more commonly used than stainless steel-clad fuel.
(Tr. 861-62.)
CREC's claim that LACBWR requires " costly custom" fabrication for its fuel and that LACBWR nuclear fuel is "substantially more costly" than most nuclear fuel (CREC Findings Nos. 110-11) is clearly without support in the record.
(Tr. 828.)
Even so, the actual costs of LACBWR nuclear fuel, whether higher or lower than average, are what the DPC estimates are based upon.
(Tr. 828-29.)
CREC's Finding No. 104, claiming that the net cost benefit from maintaining LACBWR in service is " highly dependent" on the estimated nuclear fuel cost, does not hold up under close scrutiny.
Even if the estimated fuel cost were doubled, (i.e.,
to $9,888,000), the net savings over the costs associated with continuing operation versus cold shutdown would still be nearly
$4,000,000.
It is clear that CREC Findings Nos. 100-112 should be rej ected in their entirety.
V.
Environmental Impacts Are Insignificant And Beyond The Scope Of The Present Inquiry (CREC Findings Nos.
117-125)
CREC's proposed findings of fact concerning the en-vironmental impacts associated with the operation of LACBWR 1440 173
-25 either (a) go beyond the stated purpose of the evidentiary hearings and relate to matters which are no longer in controversy in this proceeding, (b) contain legal conclusions which are either incor-rect or irrelevant, or (c) address the ultimate issue in this proceeding and, as a result, must all be rej ected by the Board.
CREC Findings Nos. 117-119 address various projections of radioactive emissions from LACBWR made by the NRC Staff.
The evidentiary hearings in La Crosse were, by definition, limited by the Licensing Board to the question of the need for LACBWR and the economic costs associated with continued operation of the plant versus shutdown.
(Prehearing Conference Transcript at 393.)
This was the only matter in controversy remaining among the parties to this proceeding.
CREC's contentions concerning radiation ex-posures had all been rejected or summarily disposed of earlier.
The Board has already found that it will consider the environmental impacts of the proposed pool expansion and continued operation of LACBWR to be as stated in the environmental impact appraisal and negative declaration prepared by the NRC Staff in this proceeding and the DES in the FTOL proceeding.
(See e.g., Tr. 423.)
In these documents the NRC Staff has concluded that these impacts are in-significant.
In this regard, it should be noted that in NUREG-0575, the Final Generic Environmental Impact Statement On Handling and Storage of Spent Light Water Power Reactor Fuel (August 1979),
the NRC Staff concluded that the environmental impact.
soi%ed
-26 with spent fuel pool expansions of any sort are negligible and that on thirty-nine (39) separate occasions the Commission has 4/
so found. -
CREC Finding No. 120 to the effect that these impacts identified in Findings Nos. 117-119 "would outweigh a substan-tial economic benefit in operating LACBWR" constitutes a legal conclusion and has no basis in the record.
This conclusion must also be rejected as incredible in the face of overwhelming weight of the evidence to the contrary concerning both the insignificant s/
In NUREG-0575, the Staff specifically noted that As of January 1979, applications for modifica-tions to increase storage-pool capacity at 65 operative nuclear power. reactors have been received by the NRC.
The actions can be taken without significant effect on public health and safety, and to date 39 of these applications have been approved and actions are proceeding as planned.
Each of these applications was evaluated on an individual basis with findings in each case that At-reactor spent fuel storage can be increased, The actions can be taken with no sacrifice of public health and safety, and The environmental impact of the pro-posed increased at-reactor spent fuel storage was negligible.
1440 175
-27 nature of these impacts and the substantial benefits associated with continued operation of LACBWR. -5/
CRSC's proposed finding asserting that no EIS has been prepared for LACBWR "despite the fact that it had been operating since before the enactment of NEPA" (No. 121) misses the point altogether.
NEPA did not apply retroactively to projects which were completed prior to its enactment. -6/
It is precisely be-cause LACBWR was operating before the enactment of NEPA that no requirement for an EIS exists in connection with its continued 7/
operation pending NRC action on the FTOL application. -
h7 wever, the NRC Staff considers the issuance of a full term operating
-5/
In any event, given the fact that these impacts are de minimus, "any benefit whatsoever" from the continued--
operation and availability of LACBWR is sufficient to "tip the scale" in favor of granting an amendment to expand the spent fuel pool capacity.
Portland General Electric Co. (Troj an), LBP-78-32, 8 NRC 413, 454 (1976),
aff'd, ALAB-531, 9 NRC 263 (1979).
6,/
San Francisco Tomorrow v. Romnev, 472 F.2d 1021 (9th Cir. 1973); Ragland v.
Mueller, 460 F.2d 1196 (5th Cir.
1972); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4tn Cir.), cert. denied sub nom., Fugate Arlington Coalition on Transportation, 4U9 U.S. 1000 v.
(1972).
-7/
As noted in Applicant's Request For Reconsideration, Or, In the Alternative, Certification Or Referral To The Appeal Board (Oct. 1, 1979) at 12-14, the Atomic Energy Commission originally authorized the operation of LACBWR in 1967. well before the enactment of NEPA, and DPC was operating LACBWR under contract to the AEC pursuant to this authorization when NEPA was enacted.
The contract for the transfer of LACBWR from the AEC to DPC was also entered into prior to the enactment of NEPA.
The actual transfer and issuance of DPC's existing provisional operating license (POL took 1440 176
-28 license for LACBWR to be "a major federal action significantly affecting the quality of the human environment" and, as CREC correctly notes in Finding No. 122, the Staff is preparing an EIS in connection with that proceeding.
However, CREC's finding No. 123 containing the bald assertion that the proposed expansion of + - spent fuel pool at LACBWR is also "a major federal action 7/
cont.
provisional operating license (POL) took place in 1973 pur-suant to a supplemental agreement between AEC and DPC.
How-ever, DPC would have continued to operate the plant pursuant to the original contract and its prior authorization from the AEC if tne transfer had not taken place and the POL had not been issued at that time; the actual environmental impacts associated with the operation of the plant would have remained the same in either case.
Thus, the conversion of DPC's prior operating authorization into a POL did not require an EIS since (a) it was a " supplemental" action related to the continuation of an activity approved before the enactment of NEPA, (b) it was not a major federal action, and (c) it had no significant impact on the environment.
See l...
Jones v.
e Lynn, 477 F.2d 1275 885 (1st Cir. 1973); Jicarilla Apaches
- v. Morton, 471 F.2d 1275 (9th Cir. 1973); San Francisco Tom-orrow v.
Romney.
Nevertheless, in transferring the plant and issuing the POL the Commisison necessarily made a deter-mination that LAC 3WR was needed since such a determination was prerequisite to the transfer under the termt of the original AEC/DPC contract.
Thus, even if some evaluation of the need for LACBWR were arguably now required under NEPA in connection with this proceeding, this prior determination of need:
(1) is entitled to the same continuing presumption of validity as the Commission's prior determinations of need for other operating reactors enjoy in connection with SFP expansion applications for those reactor, (Northern States Power Co. (Prairie Island 1 and 2), et al. ALAB-455, 7 NRC 41 91978), remanded on other groundsT State of Minnesota v.
NRC. F.d
, No. 78-1269 (D.C. Cir. May 10, 1979), and TZT obviates the need for further inquiry into this issue of the need for LACBWR in this proceeding.
See generally, Applicant's Request For Reconsideration, suora.
1440 171F
-29 significantly affecting the quality of the human environ-ment within the meaning of NEPA" has no basis in fact or law and is totally at odds with the position which the Commssion has taken in 39 other licensing proceedings involving reactor spent 8/
fuel pool expansions. -
This finding must be rej ected as a matter of law.
Finally, CREC's findings of fact Nos. 124 and 125 as to the need for LACBWR and the " net" benefit associated with the proposed expansion are actually conclusions of law concerning the ultimate issue in this proceeding.
For the reasons stated herein and in Dairyland's initial brief, these findings are unsupported by the record and must be rejected.
-8/
It is also DPC's understanding that the Commission has already approved spent fuel pool expansions at four other reactors (i.e., Yankee Rowe, Oyster Creek, Ginna, and Dresden) which like LACBWR, are now undergoing a systemactic safety review by the NRC Staff in connection with the SEP program. Like LACBWR, each of these plants received authorization to operate prior to the enactment of NEPA.
However, unlike the position which the Board has taken in this proceeding with respect to LACBWR, no examination of the need for any of these other reactors pending the completion of 'tc SEP program was deemed necessary, or apparently ever undertaken, by the Commission in connection with their SFP expansion proceedings.
1440 178
-30 CONCLUSION For all the foregoing reasons, CREC's Proposed Findings of Fact must be rej ected by the Board.
Thus, even if this Board assumes jurisdiction over the issue of the need for LACBWR, ~9/the Board should adopt the findings of fact and conclusions of law proposed by Dairyland and approve Dairyland's application.
Respectfully submitted, n@
- 0. S. Hiestand Attorney for Dairyland Power Cooperative OF COUNSEL Kevin P. Gallen Morgan, Lewis & Bockius 1800 M Street, N.W.
Washington, D.C.
20036 Dated:
November 7, 1979
-9/
Again, for all the reasons stated during the course of oral argument at the September 1979 Prehearing Conference, at the October 1979 Evidentiary Hearings, and in various sub-missions which it has made in this proceeding (e.., Applicant's Request for Reconsideration, Dairyland's Initia rief, and nn. 7-8 herein), Dairyland does not concede that the Board has jurisdiction to entertain this issue.
\\440
\\79
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
Docket No. 50-409
)
Amendment to DAIRYLAND POWER COOPERATIVE
)
Provisional Operating
)
License No. DPR-45 (La Crosse Boiling Water Reactor)
)
CERTIFICATE OF SERVICE Service has on this day been effected by personal delivery or first class mail on the following persons:
Charles Bechhoefer, Esq., Chrm.
Docketing & Service Section Atomic Safety and Licensing Office of the Secretary Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Atomic Safety and Licensing Mr. Ralph S. Decker Board Panel Route 4 U.S. Nuclear Regulatory Box 190D Commission Cambridge, Maryland 21613 Washington, D.C.
20555 Dr. George C. Anderson Atomic Safety and Licensing Department of Oceanography Appeal Board University of Washington U.S. Nuclear Regulatory Seattle, Washington 98195 Commission Washington, D.C.
20555 1440 \\80
4 1
s
-2 Colleen Woodhead, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Richard Shimshak Plant Superintendent Dairyland Power Cooperative La Crosse Boiling Water Reactor Genoa, Wisconsin 54632 Fritz Schubert, Esquire Staff Attorney Dairyland Power Cooperative 2615 East Avenue, South La Crosse, Wisconsin 54601 Coulee Region Energy Coalition P. O. Box 1583 La Crosse, Wisconsin 54601 Attn:
Anne Morse Robert H. Owen, Jr., Esquire 2327 Willard Avenue Madison, Wisconsin 53704 O. S. Hiestand 1
November 8, 1979
\\440 \\8\\