ML19254F303
| ML19254F303 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 10/16/1979 |
| From: | Gallen K, Hiestand O DAIRYLAND POWER COOPERATIVE, MORGAN, LEWIS & BOCKIUS |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7911090004 | |
| Download: ML19254F303 (13) | |
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UNITED STATES OF AMERICA 4
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NUCLEAR REGULATORY COMMISSION
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- In the Matter of
)
Docket No. 50-409
)
Amendment to DAIRYLAND POWER COOPERATIVE
)
Provirional Operating
)
License No. DPR-45 (La Crosse Boiling Water Reactot)
)
(Spent Fuel Pool)
APPLICANT'S BRIEF IN SUPPORT OF ITS PROPOSED FINDINGS OF FACT ON THE NEF.D FOR LACBWR AND CONC:USIONS OF LAW Pursuant to 10 C.F.R.
S 2.754, Dairyland Power Cooperative (Dairyland or DPC), the Applicant for an amendment to Pravisional Operating License No. DPR-43 in the above-refe'enced proceeding, hereby submits its brief in support of the proposed findings of fact on the need for LACBWR and the conclusions of law which accompany this brief:
INTRODUCTION The only issues which remain in this proceeding are (1) the question of whether Dairyland needs to have LACBWR available to operate and generate electricity on the Dairyland power system from the period commencing at the end of the pre-sent operating cycle (now scheduled for February 1980) until such time as NRC makes a final determination with respect to 1302 312 7911090 009
-2 Dairyland's pending application to convert its provisional operating license into a full term operating license (now estimated to occur sometime in 1982), and (2) whether this Licensing Board has jurisdiction over this issue. -1/
Dairy-land's position on the latter issue is contained in Dairyland's Request For Reconsideration filed on October 1, 1979.
Dairy-land hereby reaffirms that position and incorporates its Request 2/
For Reconsideration by reference into this brief. -
The re-mainder of this brief will focus on the former issue.
-1/
As described in greater detail in " Applicant's Request For Reconsideration, Or, In The Alternative Certification Or Referral To The Appeal Board," dated October 1, 1979
[ hereinafter "Dairyland's Request For Reconsideration"),
all of the contentions raised by the Intervenor, Coulee Region Energy Coalition (CREC), were either rejected at the original prehearing conference in August 1978, or summarily disposed of by the Board pursuant to 10 C.F.R. 5 2.749 at the September 1979 pr,ehearing conference as a result of summary disposition motions and affidavits sub-mitted by Dairyland and the NRC Staff.
All of the other questions raised sua sponte by the Board were resolved via supplemental affidavits filed by Dairyland and the NRC Staff and answers provided at the September 1979 prehearing con-ference.
See Dairyland's Request For Reconsideration at 1-7.
-2/
In light of the fact that hearings have already been held and expedited briefing is underway, a prompt decision by the Appeal Board on the jurisdictional question would.no longer appear to be necessary under the criterfa set forth in 10 C.F.R.
S 2.730.
The Board's ruling on this Request For Reconsideration at the commencement of the evidentiary hearings on the "need for LACBWR" issue (Tr. 228-281), seems to indicate that the Board intends to " refer" its earlier ruling asserting jurisdiction over this issue to the Appea' Board in conjunction with its initial decision in this pt a-ceeding (i.e., the " referral" will be part of the initial decision).
If this is not the case, Dairyland respectfully requests that the Board stay the referral until the initial decision is rendered.
1302 313
-3 ARGUMENT It is by now well settled that the Nuclear Regula-tory Commission's role ir. the review of the need for any given nuclear generating unit is a limited'one.
In Vermont Yankee Power Corp. v. NRDC, 435 U.S. 519 (1978), the Supreme Court concluded There is little doubt that under the Atomic Energy Act of 1954, state pub-lic utility commissions or similar bodies are empowered to make the initial decision regarding the need for power.
42 U.S.C. S 2021(b).
The Commission's prime area of concern in the licensing context, on the other hand, is national security, public health, and safety.
435 U.S. at 550.
The enactment of the National Environmental Policy Act of 1969 (NEPA) has only " altered slightly the statutory balance" referred to above.
435 U.S. at 551.
Both the Commis-sion and the Atomic Safety and Licensing Appeal Board have en-couraged licensing boards to utilize or defer to conservative assumptions concerning utility load forecasts when assessing the need for any given facility and have directed the boards to properly take into account any ana all other aspects of the need for the facility.
As the Appeal Board noted in Vermont Yankee Nuclear Power Corp. (Vermont Yankee), ALAB-179, 8 AEC 159, 173 (1974),
"if the electricity to be produced by a proposed project is
. needed.
. then the societal benefits achieved by having that electricity available are immeasurable."
Similarly, in 1302 314
_4 Niagra Mohawk Power Corp. (Nine M123 Point 2), ALAB-264, 1 NRC 347, 368-69 (1975), the Appeal Board observed that "the adverse consequences to the public of insufficient generating capacity are serious ones far more so than those flowing from having the plant on line
. before its capacity is ab-solutely necessary."
Indeed, as the Appeal Board stated in Tennessee Valley Authority (Hartsville Units), ALAB-367, 5 NRC 92, 95-96, quoting Nine Mile Point 2, supra, and Duke Power Co.
(Catawba 1 and 2), ALAB-355, 4 NRC 397, 410-11 (1976)
[I]nherent in any forecast of future electric power demands is a substantial margin of uncertainty.
Being legally obligated to meet reserve mar-gin requirements, any utility company must be expected to forecast load de-mands conservatively -- i.e.,
favor the high side of such predictions --
to insure that it is always prepared for unexpectedly high demands.
We find nothing untoward in that attitude.
To be sure, if demand does turn out to be less than predicted, it can be argued (as intervenor does) that the cost of the unneeded generating capacity may turn up in the customers' electric bills.
This is not an ineluctable result, for oft times the surplus can be profitably marketed to other uystems or the capacity can replace older, less efficient units.
But should the opposite occur and demand outstrip capacity, the consequences are far more serious
[I]nsuf-ficient generating capacity.
can lead to small scale interruptions or widespread blackouts, affecting a few individuals or leading to situations affecting the health, safety, and economic well-being of large numbers of people.
The life of individuals 1302 3i5
~
-5 dependent upon iron lungs, artificial kidney machines, and other life-sus-taining equipment will be endangered.
Manufacturing activities involving electric heating, constant temperature conditions, and electric drive and controls will be interrupted with pos-sible spoilage of work in process.
(footnotes and citations omitted.)
Even in situations where it has not been demonstrated that the additional capacity provided by a nuclear power plant is actually needed to meet the anticipated electric power needs of a util.ity's service area, a need for the plant still exists if the operation or availability of the plant will (1) enhance system reliability, or (2) enable the utility to develop alter-native sources of energy other than oil and coal and reduce utility dependence on these sources of fuel supply to meet the needs of its system.
New England Coalition on Nuclear Po lution
- 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 curiam).
See also Public Service Co. of New Hampshire (Seabrook 1 and 2), ALAB-422, 6 NRC 33, 90-99 (1977).
In the present situation, Dairyland is not seeking NRC authcrization to coastruct a new plant or even operate an existing plant for a pro)onged period of time; rather, Dairyland is only seeking a license amendment which will enable Dairyland to expand the capacity of the spent fuel storage pool at an existing and 1302 316
-6 otherwise fully operational plant.
This amendment will also enable Dairyland to continue operating this plant, or at least ha ve this plant available to operate, until a final NRC deter-mination is made on Dairyland's application for a full term operating license.
The Appeal Board's guidance in Consumers Power Co.
(Midland 1 aad 2), ALAB-458, 7 NRC 155, 162-63 (1978) is there-fore particularly apt here, i.e.,
in situations where the environ-mental impacts of the proposed action are insignificant, NRC should leave the choice among alternative sources of power genera-tion to meet the power needs of a given area "to the business judgments of the utility c-panies and to the wisdom cf the State regulatory agencies responstole for scrutinizing the purely economic aspects of proposals" related to electrical generating facilities.
As the Licensing Board appropriately concluded in Portland General Electric Co. (Troj an), LBP-78-32, 8 NRC 413, 454 (1978), aff'd, ALAB-531, 9 NRC 263 (1979) in address ag the need for power issue in a similar NRC license amendment proceeding involving the expansion of spent fuel storage capacity ac Trojan, "any benefit whatever" from the continued operation and avail-ability of a given nuclear facility is sufficient to "tip the scale" in favor of granting the proposed amendment.
Indeed, in the opinion of the Board 1302 317
-7
[N]ot only is consideration
[of alternatives to continued opera-tion] unnecessarv, it is verv inad-visable, since it infringes upon those very prerogatives and duties of cor-porate management which we would eschew usurping.
8 NRC at 454.
At the evidentiary hearings on the need for LACBWR held in La Crosse, Wisconsin on October 3-6, 1979, it was con-clusively demonstrated that the LACBWR plant is needed and that there is certainly a need to continue to keep LACBWR operational and available for use until a final NRC determination is reached on DPC's pending application on a full term operating license sometime in the 1980's.
The 46 MW capacity provided by LACBWR is needed to enable Dairyland to meet the energy needs of its own system, avoid generating capacity deficits in the early 1930's, and maintain the 15% reserve margin required of members of the Mid-Continent Area Power Pool.
(See Dairyland's Pro-3/
posed Findings of Fact Nos. 1-16. ) -
Moreover, if LACBWR were shutdovn during the period from 1980-1982, Dairyland would be forced to incur substantial expenditures purchasing replacement power to make up for the lost capacity and meet its system needs.
Even utilizing con-servative assumptions concerning the availabilitf and capacity factors for LACBWR and the MAPP power purchase schedules that
-3/
It should be noted that an NRC Licer?ing Board has already concluded that Dairyland would have a capacity deficit in the early 1980's even if LACBWR continued operating and even if the 143 MW of additional capacity from DPC s share of the Tyrone proj ect were also available.
Northern States Power Co. (Tyrone 1), LBP-77-71, 6 NRC 1232, 1278-79 (1977).
The Tyrone project has since been cancelled.
g 1302 318
-8 would be available to DPC during this period, the continued availability of LACBWR to generate electric power during this period would save DPC over $7 million.
(Dairyland's Proposed Findings of Fact Nos. 17-53, 74-75.)
Further, the DPC system is heavily oriented toward coal-fired steam plants with coal-fired units accounting for approximately 90% of the total system capacity.
LACBWR is the only base-load plant on the DPC system which is not a coal-fired unit.
The continued availability of LACBWR reduces DPC's dependence or coal and lessens the vulnerability of the DPC system to interruptions which could be caused by coal strikes and severe weather conditions.
(Dairyland's Proposed Findings of Fact Nos. 3-7, 34-37.)
In addition, LACBWR greatly enhances the overall reliability of the DPC system by providing additional voltage support for the interconnected network and alleviating the im-pact of low voltages, overloads, and outages on the transmission lines into the La Crosse area, and also reduces the need to run the high cost oil-fired French Island peaking combustion turbines operated by Northcrn States Power.
(Dairyland's Proposed Findings of Fact Nos. 38-61.)
Finally, there are other independent, and perhaps equally compelling reasons, for not placing LACBWR in shutdown, including inter alia, the potential adverse impacts and additional costs which DPC would incur as a result of prolonged shutdown of the 1302 319
-9 LACBWR reactor and turbine syst'ns, and the fact that prolonged shutdown could prejudice DPC's rights in the FTOL proceeding.
(Dairyland's Proposed Findings of Fact Nos. 62-72.)
In addition to the replacement power costs, shutdown of LACBWR during the period from 1980-1982 would also result in additional labor costs and other miscellaneous expenses which increase the overall costs of shutdown to over $8,500,000.
(Proposed Findings of Fact Nos. 73-75.)
In order to comply with NRC regulatory requirements and continue to pursue the FTOL, DPC's manning levels at LACBWR would remain the same and the maintenance expenses and overhead costs would r2 main essen-tially the same whether LACBWR operates or is s at iwn, but DPC would, in all likelihood, incur additional labor costs associated with the replacement and retention and training of personnel.
(Proposed Findings of Fact Nos. 77-82.)
Since DPC has already incurred certain " sunk costs" in connection with the proposed ex-4/
pansion of the spent fuel pool, - the remaining costs associated with this expansion amount to less than $500,000.
(Proposed Findings of Fact Nos. 83-i5.)
Aside from these costs, the only cost savings associated with shutdown would be the nuclear fuel burn-up costs of $4,944,000.
However, this saving is more than
-4/
The fact that DPC has already incurred these costs cannot be ignored in connection with the Board's analysis of this issue.
See New England Coalition on Nuclear Pollution v.
NRC, 502 FT2d 87 (1st Cir. 1978); Porter Ccunty Chapter of IEaak Walton League v. AEC, 533 F.2d 1011 (7th Cir. 1976).
1302 520
-10 offset by the total replacement energy and purchased capacity costs of $12,690,000 which DPC would incur if LACBWR were to be shutdown.
(Proposed Findings of Fact Nos. 18, 74-76.)
Since DPC will continue to incur essentially the same labor, operating, maintenance, and overhead costs associated with LACBWR regardless of whet'aer the plant is operating or not, these fuel " savings" (actually non-savings) represent the only economic " benefit" associated with placing the plant in shutdown.
However, the cost of fuel for LACBWR per KWH is the lowest of any of the b..se-load plants on the DPC system, and recent operating experience has shown that the total costs of operating LACBWR are less than the total costs of operating a number of the coal-fired units.
(Proposed Findings of Fact Nos. 91-95.)
Given the fact that as rccently as August 1979 LACBWR supplied almost 10% of DPC's total power generation, and the fact that there is every raason to believe that LACBWR can continue to operate with favorable availability and on-line capacity from now until 1982 (Proposed Findings of Fact Nos. 86-90), it would be sheer folly to shut LACBWR down at this time.
In summary then, it is abundantly clear that the evi-dentiary record below shows that the LACBWR plant is, in fact, "needed" under virtually every criterion or need recognized in NRC licensing proceedings.
The continued availability and operability of LACBWR during the next several years is necessary in order to enable 1302 321
-11 DPC (1) to meet the electrical energy needs of its member coopera-tives and the DPC system as a whole, (2) to meet its MAPF commit-ments, provide surplus energy to meet the needs of other systems, and avoid additional purchases of replacement energy for its own system, and (3) to maintain and enhance system reliability and' avoid energy shortages caused by too great a dependence on coal, outages of other facilities, and damaged transmission lines.
Moreover, the continued availability and operation of LACBWR is consistent with prudent utility management and sound regulatory practice.
For all the toregoing reasons, even if this Board concludes that it has jurisdiction over this issue, it should conclude that there is a need for -he LACBWR plant and, since approval of the license amendment under review here will enable DPC to insure that LACBWR will continue to be available to meet this need, this Board should approve Dairyland's application as soon as possible.
Respectfully submitted, f
p~\\ d l
+u s N%i
- 0. S Niestand Attopney for Dairyland Power Cooperative OF COUNSEL Kevin P. Gallen
- 0 2 a c ')
1800 M Street, N.W.
Washington, D.C.
20036 Dated:
October 16, 1979
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)
)
C2RTIFICATE 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 1302 323