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Request for Reconsideration of ASLB 790921 Order Setting Evidentiary Hearings Re Need for Facility.Contains Alternative Request Suggesting Submittal of Order to Aslab for Immediate Resolution.Certificate of Svc Encl
	ML19254D997
Person / Time
Site:	La Crosse File:Dairyland Power Cooperative icon.png
Issue date:	10/01/1979
From:	Gallen K, Hiestand O; DAIRYLAND POWER COOPERATIVE, MORGAN, LEWIS & BOCKIUS
To:	; NRC COMMISSION (OCM)
References
	NUDOCS 7910300426
	Download: ML19254D997 (23)
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UNITED STATES OF AMERICA I

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NUCLEAR REGULATORY COMMISSION b

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In the Matter of

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Docket No. 50-409

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Amendment to DAIRYLAND POWER COOPERATIVE

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Provisional Operating

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License No. DPR-45 (La Crosse Boiling Water Reactor)

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(Spent Fuel Pool)

APPLICANT'S REQUEST FOR RECONSIDERATION, OR, IN THE ALTERNATIVE, CERTIFICATION OR REFERRAL TO THE APPEAL BOARD Pursuant to 10 C.F.R. 5 2.730(a), D$1rylandPower Cooperative (Dairyland or DPC), the applicant for an amendment

'o provisional operating license No. DPR-45 in the abcve-cap-tionedproceeding,herebymovesthattheLicensidjBoirdrecon-sider its Septecher 21, 1979 order at the, conclusion of the prehearing conference in which the Board set for evidentiar',

hearings the issue of the need for the LACBWR plant until a final decision is rendered by NRC in the pending full term operating license proceeding.

In the alternative, pursuant to 10 C.F.R. S S 2.718(i) and 2.730(f)

Dairyland moves that the Licensing Board certify or refer its September 21, 1979 order to the Appeal Board.

In support of this motion, Dairyland states the following:

1236 033 7910300+7 6

-2 BACKGROUND Almost five years ago, on October 9, 1974, Dairyland filed a timely application with the Commission to convert its provisional operating license for LACBWR into a full term operating license (FTOL).

Pursuant to the prc, visions of the Administrative Procedure Act, 5 U.S.C.

5 ;38(c), and the Commis-sion's own regulations (10 C.F.R. 5 2.109), Dairyland's pro-visional operating license will remain in effect until a final

'iRC determination on the FTOL application.

The Commission did not notice Dairyland's FTOL appli-cation until April 5, 1978.

43 Fed. Reg. 15021 (Apr. 10, 1978).

The FTOL proceeding is still pending before the Co= mission and a final decision is not expected until some time lat2 in 1982 at the earliest. -1/

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Meanwhile, on April 20, 1978, Dairyland filed an application with the Coc=ission to amend its provisional operating license in order to enable DPC to expand the storage capacity of the LACBWR spent fuel pool and continue to operate LACBWR, as DPC

-1/

This delay is primarily due to the fact that LACBWR is one of the reactors included in the Co= mission's ongoing system-2:lc evaluation program (SEP) designed to insure that older plants meet the Commission's present regulatory requirecents.

See NRC News Release 77-196 (Nov. 17, 1977).

Since, (1) the EaTety Evaluation Report (SER) on DPC's FTOL application will not be issued until the SEP is completed, (2) the issuance of the SER is a prequisite to a final decision in the FTOL pro-ceeding, and (3) the SEP program has been delayed and will not be completed for several more years, the earliest that a final decision would be forthcoming would be by tne and of 1982.

Thus, the delays in the FTOL proceeding are clearly not of DPC's own making.

1236 034

-3 was entitled to do under its license. -2/

After first suggesting that the FTOL and SFP proceedings should be consolidated, the Licensing Board granted DPC's motion to proceed with the SFP proceeding ahead of the FTOL proceeding in its September 5,1978 Prehearing Conference Orders.

The Coulee Region Energy Coalition (CREC), an intervenor in the SFP proceeding, submitted two con-tentions which arguably dealt with alternatives to the proposed expansion and the need to continue operating LACBWR while the proceedini was pending.

(CREC Contention Nos. 10 and 11, As noted in the Board's September 5, 1978 Prehearing Conference Orders, Contention No. 11 was withdrawn by CREC and Contention No. 10 was rejected by the Board.

Due to delays in the SFP proceeding and the fact that the existing SFP at LACBWR had reiched capacity,,Dairyland was A

.forced to enter into a one-time-only arrangement hith General Electric Company to ship a number of spent fuel assemblies to GE's

-2/

The LACBWR plant was built by the AEC under the cooperative power reactor development program.

The AEC determined the original capacity of the LACBWR SFP.

Dairyland, as the utility participant on this proj ect, subsequently acquired the federal govern =ent's interest in the plant.

At the time of the transfer, it was Dairyland's understanding that ad-dicional on-site storage capacity would not be required be-cause off-site storage and reprocessing facilities would be available in connection with government-sponsored programs.

DPC was forced to initially expand the capacity of the SFP in 1975 due to delays in these government programs.

The instant request for a further expansion is a direct result of the government's decision to defer reprocessing and its inaction on the waste disposal issue.

1236 035

-4 Morris, Illinois facility for temporary storage pending the completion of this proceeding in order to continue to operate LACBWR. -3/

On May 21, 1979, pursuant to 10 C.F.R. 5 2.206, CREC filed a request with the Commission asking that Dairyland's Pro-visional Operating License be suspended and that LACBWR be shut-down.

This request is currently pending before the Director of the NRC Office of Nuclear Reactor Regulation.

After the Staff issued its SER, negative declaration, and environ = ental impact appraisal (EIA) supporting this negative declaration with respect to the proposed expansion, both DPC and the NRC Staff filed motions for su==ary disposition, accom-panied by supporting affidavits, with respect to all the remaining CREC contentions in this proceeding, and requeste,d that the Board A

.dismiss the proceeding and issue a decision in thdir favor with respect to all matters involved in this proceeding. -4/

-3/

See Letter dated March 8, 1979, from O. S. Hiestand, Attorney for DPC to Licensing Board and parties to SFP proceeding.

-4/

NRC Staff Motion for Succary Dispcsition on the Pleadings (July 30, 1979); Applicant's Motion For Su==ary Disposition (July 31, 1979).

The CREC contentions which remained at this juncture dealt with corrosion of components in the spent fuel pool, the use of the two-r.ier rack design, a cask drop accident, fuel failures, and increased occupa-tional exposures associated with filter changes, but were not even remotely connected with the need for power issue.

1236 036

-5 Although CREC never responded to these su==ary dis-position motions, the Licensing Board issued two orders, dated August 11, 1979 and September 7, 1979, respectively.

In the first order, the Board established a schedule for (1) a Pre-hearing Conference in La Crosse, Wisconsin, on September 20-21, 1979, at which oral argument on the motions for summary dispo-sition would be held, and (2) evidentiary hearings, if necessary, to commence in La Crosse on October 2, 1979.

In the second order, the Board noted that CREC had not filec' a response to these motions and submitted seven (7) pages of questions to Dairyland, the NRC Staff, and CREC to be answered by aff,idavits prior to 5/

the Prehearing Conference. -

Both the NRC Staff and Dairyland furnished the neces-sary affidavits prior to the start of the Preheaping Conference;

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again, CREC filed nothing.

-5/

Although these questions dealt primarily with the issues raised by CREC's contentions (i.e., use of zircaloy clad fuel, exposure levels, proposed storage plan, etc.) a number of the questions which the Board raised at this late date went well beyond the scope of the CREC conten-tions (i.e., questions concerning evacuation plans, Class 9 accidents, etc.).

However, none of the Board's cuestions addressed the need-for-power issue or even intimated that it was relevant to this proceeding.

1236 037

-6 At the actual Prehearins Conference itself, CREC ad-m Ited fr et r.

disputt the factual statements made in the variors affidavits which Dat f and and the NRC Staff had sub-l rittec ad CREC conueded that no genuine issue of material fact remained concerning its contentions.

(Tr. 257-58).

Neverthe-less, the Board continued to ask tbc NRC Staff and Dairyland additional que=tions concerning the proposed expansion.

But, again, the Board asked no questions concet,ing the need for the LACBWR plant.

Finally, at the conclusion of the limited appearances on the second day of the prehearing conference, the Board granted Dairyland's and the NRC Staff's motions for su= mary disposition and dismissed CREC's contentions.

Then, although (1) no con-tentionsremainedandDairylandandtheNRCStaf{hadpre-sumably satisfactorily answered all of the Board'(s other questions, and (2) this proceeding had been pending before the Board for over one year with no mention by the Board of the need for power issue, the Board ordered that evidentiary hearings would commence on October 3, 1979 on the question of whe:her or not the LACBWR plant is needed between now and some unknown time in the future when a final determination is made by the NRC in the FTOL pro-ceeding.

(Tr. 393).

Both Dairyland and the NRC Staff obj ected to this ruling, asserting, inter alia, that the Board was without jurisdiction to consider this issue in this proceeding, that resolution of this issue was not necessary to a decision in this i236 038

-7 proceeding, and that the Board had not shown the existence of the " extraordinary circumstances" necessary under 10 C.F.R. 5 2.760a to even arguably justify the Board's action.

(Tr-394-426).

The Board su=marily rejected all of these arguments and hearings on this issue are scheduled to co==ence on 6/

October 3, 1979. -

THE QUESTION FOR RECONSIDERATION AND/OR CERTIFICATION OR REFERRAL Does an Atomic Safety and Licensing Board have the authority, or does a Board abuse its discretion if it has the authority, to sua sconte order an evidentiary hearing on the need for power issue in a spent fuel pool expansion proceeding in which all intervenor contentions have been dismissed, and prior Board questions have been answered?

x

-6/

In spite of the fact that all of CREC's contentions had been dismissed and they were technically no longer a party to the proceeding, the Board also ruled that CREC would not only be permitted to conduct cross-examination on this issue, but that CREC would be permitted to present affirmative evidence on this issue.

(Tr. 426).

This ruling is in direct conflict with Commission precedent.

See e.g.,

Northern States Power Co. (Prairie Island 1 and 2),

ALA3-244, 8 AEC 857, 859, n.

17 (1974), reconsideration denied, ALA3-252, 8 AEC 1175, aff'd, 1 NRC 1 (1975),

Project Management Corp. (CR3RP), ALA3-354, 4 NRC 383, 391-92 (1976) (intervenor can only adduce affirmative evidence on his own contentions).

1236 039

-8 ARGUMENT The Atomic Safety and Licensing Appeal Board has gone to great lengths over the past several years to clarify the scope of the issues that appropriately =ay be addressed and resolved in license amendment proceedings related to the expansion of spent fuel pool capacity at operating reactors.

In Northern States Power Co. (Prairie Island 1 and 2), et al.,

ALAB-455, 7 NRC 41, 46, n. 4 (1973), remanded on other crounds, Minnesota v. NRC,,

F.2d (D.C. Cir. 1979), the Appeal Board explicitly stated that Because the practical effect of not now increasing the capacity of the Prairie Island spent fuel pool would be that that facility would have to cease operation, [ inter-venor] appears to believe that what is being licensed is in reality plant operation.

Therefore, accor to[intervenor),thelicenseamendjing ment could not issue without a prior ex-pioration of the environmental impact of continued operation and the con-sideration of alternatives to that operation We do not agree.

The alternative to continued operation which the Li-censing Board is seeking evidence on under the guise of the "need for power" issue in the present proceeding is shutting down LACBWR until a final decision is reached in the FTOL pro-ceeding.

Under the Appeal Board's ruling in Prairie Island, con-sideration of this, as well as any other, alternative to continued operation of LACBWR gces beyond the scope of the Licensing Board's 1236 040

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-9 jurisdiction in this proceeding, particularly since (1) the Licensing Board has " accepted," for purposes of its analysis, the environmental impacts associated with expansion as stated in the NRC Staff SER and EIA, (Tr. 423), (2) a request to shut dcen LACBWR under 10 C.F.R.

S 2.206 is currently pending before NRC, and (3) the need for power issue is a matter in controversy in the FTOL proceeding.

As noted previously, DPC's provisional operating license is and remains valid and continues in effect until a final decision is reached on the FTOL application.

Inberent in the provisions of the APA and NRC regulations-providing for the continuing validity of DPC's existing license is the principle that DPC will only be required to meet the NRC requirements npplicable to other licensees in order to continue operations under its provisional license; otherwise the automatic extension provided for under the APA and 10 C.F.R.

S 2.109 is meaningless.

It must be taken as a given that DPC's current license to operate LAC 3WR is valid and NRC, and particularly this Board, cannot regulate in a manner inconsistent with that fact.

With respect tc the proposed license amendment in enis proceeding, NRC has

=ade a " negative declaration" pursuant to IL

'.F.R.

S 51.7; i.e.,

that no environmental impact statement containing a cost-benefit analysis is required in connection with the proposed li-cense amendmenc.

Pursuant to 10 C.F.R.

S 51.7(b), an environ-mental impact appraisal has been prepared in support of this 1236 04l

-10 negative declaration.

NRC regulations do not require that a cost-benefit analysis be prepared in connection with either the negative declaration or the environmental impact anpraisal.

Accordingly, while the provisional operating license is in effect, the Board is constrained to examine proposed license amendments solely on the health, safety and other environmental issues (if any) presented by such amendments, and not whether the license should, in effect, be suspended on cost-benefit grounds for some indefinite period; i.e.,

in this case, until NRC acts on the FTOL application.

In its SER and EIA, the NRC Staff has concluded that the environmental impacts of the expansion would be " negligible" 7/

and/or " insignificant." - For the purposes of the cost-benefit analysis which the Board intends to conduct, the. Board has con-(

cluded that these are the actual i= pacts associated with the expansion.

-7/

Such a conclusion is hardly surprising.

As noted in NUREG-0575, Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel (Aug. 1979), the NRC Staff concluded that spent fuel pool expansions 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 plannad.

Each of these applications were evaluated on an individual basis with findings in each case that 1236 042

-11 In approving the issuance of an amendment to expand the pool capacity at Beaver Valley 1 in Duquesne Light Co.

(Beaver Valley 1), LBP-78-16, 7 NRC 811, 899 (1978), the Li-censing Board Having concluded that the proposed action will not have significant environmental impacts and that the negative declaration is appropriately supported by the environmental impact appraisal, the Board concludes further that considerations of cost-benefit and alternatives to the proposed action under NEPA are not required either as &

matter of law or as a matter of logic.

Commission regulation, 10 C.F.R. 5 51.7, concerning the recuirements for negative declarations and environmental impact acoraisals, makes no reference to cost-benefit evaluations and consid-eration of alternatives.

The Board's rinding and conclusion on the adequacy of the negative declaration alone would warrant an order authorizing the Director of Nuclear Reactor Regulation to proceed with the processing of the applica3' ion for the amendment.

(emphasis addec).

7/

cont.

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.

Id. Vol. 1, Executive Summary at ES-5.

1236 043

-12 Similarly, in affirming a Licensing Board decision authorizing the expansion of the Trojan spent fuel pool in Portland General Electric Co. (Troj an), ALAB-531, 9 NRC 263 (1979), the Appeal Board held, in the words of the Chairman of the Appeal Board before the recent ALI-ABA seminar on nuclear licensing, "that it was proper for the Licensing Board not to consider alternatives to pool expansion where, as here, that action will neither harm the environment nor bring into serious question the manner in which this country's resources are being expended."

In Trojan, the Appeal Board also noted that it was improper to assume "that pool capacity expansion is to be permitted only in circumstances where needed to avert an immediate crisis."

9 NRC at 271.

Yet, chis Board insists that it hac an obligation under

.s the National Environmental Policy Act (NEPA) to dhtermine whether or not LICBWR is needed from an economic standpoint before it will approve the issuance of the requested amendments.

The Board's ostensible grounds for doing so, and for ignoring the Appeal Board's directive in Prairie Island and its progeny, is that the LACBWR situation is somehow different in that, unlike the situatica which existed in Prairie Island, et al.,

an FTOL has not been issued for LACBWR and NRC has not yet addressed the need for LACBWR in an adjudicatory proceeding.

(Tr. 393-97).

This is a classic case of a distinction without a difference.

1236 044

-13 The 1962 LACBWR contract between DPC and the Govern-ment (acting through NRC's predecessor, the Atomic Energy Com-mission (AEC)) under the cooper tive power reactor development program, recited that its purpc.e was to accelerate "the pro-duction of nuclear power on an economical basis."

By the terms of the contract, AEC was to provide a 50 Mw reactor plant and DPC was to provide the turbo generating plant.

DPC was to operate the AEC reactor plant for ten years (for AEC's account) and pur-chase the steam produced.

At the end of the ten year operating period, DPC was co=mitted to purchase the Government-owned reactor plant if two conditions had been met; namely,,

1.

The reactor plant 'can reasonably be expected to serve as a reliable soure'e of steam to meet Nuclear

'wer Plant requirements while operating as a base load plant

.,' and

(

2.

The ' probable cost of energy pro-duced.

. will not exceed the cost of energy that would otherwise be produced in a hypothetical new fossil-fuel power plant of com-parable size and location.

It was subsequently established that the ten year operating period began on November 1, 1969.

However, in 1973, the Commission and DPC entered into a supplemental agreement under which DPC would acquire the Government's title to the reactor plant, DPC's ten year co==itment to the Commission would be terminated, and DPC would assume responsibility :o operate LACBWR as a part of its system.

This agreement was conditioned on 1236 045

-14 DPC obtaining a provisional operating license (POL) from the Commission under the Atomic Energy Act.

The Comuission issued the POL on August 28, 1973, and DPC has owned and operated LACBWR as a part of its power system since that time.

The agreement to transfer the Government's interest in LACBWR to DPC and the POL issued to DPC by the Commission, were therefore necessarily basec on the mutual recognition by DPC and the Commission that the reactor plant was economical and was needed to meet DPC's power needs.

Thus, the provisional operating license for LACBWR was granted well after the enactment of NEPA and the need for this plant was therefore necessarily considered, albeit not in an adjudicatory proceeding, in connection with the issuance of the license.

The issuance of that license represents an implicit a

,NRC determination that this plant is needed and ih entitled to the same continuing presc=ption of validity as NRC's original determination of need associated with other operating reactors, unless and until such time as NRC determines otherwise in the FTOL proceeding.

Moreover, the Licensing Board's ruling conven-iently ignores the determination by another NRC Licensing Board in Northern Sectes Power Co.,

et al. (Tyrone 1), LBP-77-71, 6 NRC 1232, 1278-1279 (1977) in which that Board determined that Dairy-land, which would have owned a 143 MWe share of the Tyrone project, would have a capacity deficit in the early 1980's, even if Tyrone and LACBWR were in operation.

1236 046

-15 In this regard, the Appeal Board's guidance in Consumers Power Co. (Midland 1 and 2), ALAB-458, 7 NRC 155, 162-63 (1978) is particularly apt, i.e.,

in situations where the environmental impacts of the proposed action are insignifi-cant, NRC should leave the choice among alternatives "to the business judgments of the utility co=panies and to the wisdom of the State regulat-ry agencies responsible for scrutinizing the purely economic aspects of proposals" related to electrical generating facilities. -8/

As the Licensing Board appropriately concluded in Portland General Electric Co. (Troj an), LBP-76-32, 8 NRC 413, 454 (1978)

T

-8/

The Appeal Board also noted in Midland that in the Atomic Energy Act, Congress did not make NRC responsible for assessing whether a proposed nuclear plant would be the most financially advantageous way for a utility to satisfy its customers' need for power.

Such matters remained the province of the utility.

The passage of the National Environmental Policy Act increased our concern with economics of nuclear power plants, but only in a limited way.

if there are no preferable environmental alter-natives, such cost-benefit balancing does not take place.

7 NRC at 162.

1236 047

-16 As to the question of need for power, as we view it, that question could only be considered against the background of a cost-benefit balance, and absent any environmental costs, any benefit whatever would tit the scale.

We therefore believe that we need not consider alternatives to the modification in any detail.

Indeed in the opinion of this Board, not only is such consideration unnecessary. it is very inadvisable, since it infringes upon those very prerogatives and duties of corporate management which we would eschew usurring.

It is thus clear that, as a matter of law, this Board is without jurisdiction to expand the scope of this proceeding to consider whether or not LACBWR should be shut down on a need for power basis, since (1) this issue goes beyond those issues identified for consideration in the notice of this proceeding, (2) resolution of this issue is not necessary to.a proper decision

s in this proceeding, and (3) the appropriate procehding within which to address this issue is a show cause proceeding instituted pursuant to 10 C.F.R. 5 2.206.

See Public Service Co. of Indiana (liarble Hill 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976),

Portland General Electric Co. (Troj an), ALA3-534, 9 NRC 287, 289,

n. 6 (1979).

Even assuming arguendo that this Board did have juri-diction over this issue, it has abused its discretion by raising this issue at such a late date and by failing to make the neces-sary showing with respect to this issue under 10 C.F.R.

S 2.760a.

Section 2.760a requires that i236 048

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.w---

-..we.

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-17 Matters not put into controversy by the parties (in OL and license amendment proceedings] will be ex-amined and decided by the presiding officer only in extraordinary circumstances where he determines that a serious safety, environmental, or co= mon defense and security matter exists.

This authority is to be used sparinglv.

10 C.F.R. 5 2.760a (emphasis added).

The need for power issue which the Board has belatedly raised was not a =atter "put in controversy by the parties" in this proceeding, and it surely is not one which raises " serious safety, environmental, or co==on defense and security" matters.

The fact that the Board is curious about this, issue hardly rises to the level of the " extraordinary circumstances" actually neces-sary to warrant examination of this issue at this time. -9/

As the Commission admonished in Consolidated Edison of New York (Indian Point 3), CLI-74-78, 8 AEC 7 \\9 (1974),

-9/

At the Prehearing Conference, the Board indicated that the Commission may be in the process of lowering this

" extraordinary circumstances" threshold and suggested that this requirement would not apply to the Board's action.

It is well settled that an agency is " bound by the terms of its own regulation" (i.e.,

the regulations which are in effect when the action is taken).

See Service v.

Dulles, 354 U.S. 363 (1957), Vitarelli v.

Seaton, 359 U.S. 535 (1959).

ML19254D997

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