ML19269C991

Responds to ASLB 790116 Invitation for Memoranda Re Need for Power.Urges Thorough & Independent NRC Investigation of Issue W/O Reliance on a State Legislature'S Decision. Certificate of Svc Encl

ML19269C991
Person / Time
Site:	Skagit
Issue date:	01/30/1979
From:	Sandvik R OREGON, STATE OF
To:
References
NUDOCS 7902260116
Download: ML19269C991 (9)

Text

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NRC PUBLIC DOCUMENT E00M UNITED STATES OF AMERICA  ;; cec - '(

NUCLEAR REGULATORY COMMISSION um

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD C- E.Eo 1C> l G:. e*L s .n g3

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) . *M PUGET SOUND POWER & LIGHT ) Docket Nos. 50-522 ' k~ g CCMPANY, et g. , ) 50-523

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(Skagit Nuclear Power Project )

Units 1 and 2) )

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STATE OF OREGON'S MEMORANDUM REGARDING THE BOARD'S "UEED FOR POWER" QUESTION I. INTRODUCTION The State of Oregon (hereinafter " Oregon") is participating as an " interested state" in the Commission's construction permit proceedings regarding the proposed Pebble Springs and Skagit nuclear plants. Because substantial portions of both projects will be owned by two Oregon-based utilities, Oregon is particularly interested in the "need for power" issue.

With respect to that issue, at a prehearing conference held by the Skagit ASLB on January 16, 1979, the Board invited memoranda on the significance of RCW Sec. 80.50.01 to the Board's decision-making responsibilities. RCW Sec. 80.50.01 provides, in pertinent part, as follows:

"The leg.islature finds that the present and predicted growth in energy demands in the State of Washington requires the develop-ment of a procedure for the selection and utilization of sites for energy facilities. . .

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"It is the policy of the State of Washington to recognize the pressing need for increased energy facilities. . .

1/ STATE OF OREGON'S MEMORANDUM REGARDING "NEED FOR POWER" 79022601(6'

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"It is the intent to seek courses of action that will balance the increasing demands for energy facility location and operation in conjunction with the broad interests of the public. Such action will be based on these premises:

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"(3) To provide abundant energy at reasonable cost."

II. CONCLUSION -

Under the National Environmental Policy Act, 42 USC 4321-4361 (hereinafter "NEPA"), the staff must thoroughly and in-dependently investigate, as part of the cost-benefit balancing process, the "need for power" question. The Board in turn must then determine the sufficiency of the staff's analysis.

Neither the staff nor the Board may reduce the rigor, or the degree of independence, of their investigations by relying in toto upon a state legislature's declaration of energy demand.

III. DISCUSSION The issue of "need for power" is the cornerstone of the cost-benefit analysis required under NEPA. As the Appeal Board has stated:

"'Need for power' is a shorthand expression for the ' benefit' side of the cost-benefit balance which NEPA mandates for a proceed-ing considering the licensing of a nuclear power plant. As we have previously pointed out:

"'A nuclear plant's principal " benefit" is of course the electric power it generates. Hence, absent some "need for power", justification for building a facility is problematical.' Duke Power 2/ STATE OF OREGON' S MEMORANDUM REGMDING "NEED FOR PCWER"

Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397,405 (October 29, 1976)." (Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-422, 6 NRC 33,90 (July 26, 1977).

The "need for power" issue is a threshold question; without an affirmative finding thereon, the staff and the Board need not and indeed cannot proceed to further analysis. Thus, the Appeal Board has noted, in upholding issuance of a construction permit,

. . .[the licensing board] properly inquired first into whether there existed a real demand for the power to be produced by the Clinton facility. Then, having satisfied itself that there was such a need, it went on to attempt to ascertain the most beneficent means of satisfying that need."

(In the Matter of Illinois Power Company (Clinton Power Station, Units 1 and 2),

ALAB-340 (July 29, 1976)). 4 NRC 27.

The Appeal Board has described the Commission's NEPA role thusly:

"At the outset, inquiry must be made into whether there exists a genuine need for the electricity to be produced. This inquiry involves not only an analysis of existing generating capacity and of proj-ections of expected growth, but also consideration of the possibility that measures to curtail consumption will be initiated. . .

"On the basis of this information, a preliminary decision can be made as to the extent to which some form of generating facility appears to be justified. "

In the Matter of Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-179, 7 AEC 159, 175-76 (February 28, 1974).

3/ STATE OF CREGON'S FEMORANDUM REGARDING "NEED FOR POWER"

The Applicants have the burden of showing that their demand projections are " reasonable and that additional or replacement generating capacity is needed to meet that demand." (Energy Research and Development Administation (Clinch River Breeder Reactor Plant), CLI-76-13, NRCI-76/8, 67, 76-77 (1976)). Also see Seabrook, ALAB-422, 6 NRC 33, 90, n. 57. Also see 10 CFR 2.732. However, the licensing board must ultimately find that a proposed facility is needed.

(See In the Matter of Duke Power Company (Catawba Nuclear Stations, Units 1 and 2), Partial Decision, ALAB-355, (October 29, 1976), 4 NRC 397,413, where the Appeal Board stated ". . . whether a facility is needed is a question which NEPA requires the agency to answer.")

In making its need for power decision, however, the Board is entitled, in certain circumstances, to give appro-priate weight to a state decision on the same subject. In the Commission's Shearon Harris proceeding, the Board relied in part upon forecasts prepared by the North Carolina Util-ities Commission to find that four nuclear units would be needed. On appeal, intervenors contended that the forecasts accepted by the Board were unreliable. The Appeal Board had the following to say regarding ASLB reliance on the NCUC forecast:

" Irrespective of the extent to which its market segment forecasts comported with those of the applicant or the staff, we think that the NCUC total demand forecast is entitled to be given great weight. As earlier noted, . . .

that body is charged by law with the respon-sibility of providing up-to-date analyses of, 4/ STATE OF ORECCN'S MEMORANDUM REGARDING "NEED FOR POWER"

inter alia, the ' probable future growth of the use of electricity'. . . The record reflects that in January 1977, prior to the issuance of its report the following month, the NCUC conducted a public hearing on the matter of projected load growth. . . .

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"The intervenors have pointed to nothing in either the 1977 or 1978 NCUC reports which might lead us to believe that that expert body committed some fundamental error in carrying out its analyses. Indeed, they declined even to cross-examine the witness. . . who had participated in the preparation of the NCUC study. . .

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"We do not wish to be understood as sug-gesting that in all circumstances the electricity demand forecasts of a state public utilities commission must be presumed to be reliable and thus perforce to provide an acceptable founda-tion for need-for-power determinations. Despite that such commissions might be expected to pos-sess considerable familiarity with the primary factors bearing upon present and future demand, they are no more entitled to be treated as infallible than are other governmental agencies.

It therefore must always be open to a party to one of our proceedings to establish that, for one reason or another, the analysis underlying the utility commission's predictions of future demand is in error. By the same token, a licensing board must be free to disregard utility commission predictions which it is convinced rest upon a fatally flawed foundation.

"But where a utilities commission forecast is neither shown nor appears on its face to be seriously defective, no abdication of NRC res-ponsibilities results from according conclusive effect to that forecast. Put another way, al-though the National Environmental Policy Act mandates that this Commission satisfy itself that the power to be generated by the nuclear facility under consideration will be needed, we do not read that statute as foreclosing the placement of heavy reliance upon the judgment of local regulatory bodies which are charged with the duty of insuring that the utilities 5/ STATE OF OREGON'S MEMORANDUM REGARDING "NEED FOR PCWER"

within their jurisdiction fulfill the legal ob-ligation to meet customer demands. This is so at least where, as here, the utilities commission not merely has spread on the record a detailed development of the reasons for its conclusions but, as well, has made available for examination by the parties to our proceeding one of the principal participants in the load forecast undertaking."

In the Matter c' Carolina Power & Light Co.

(Shearon Harris duclear Power Plant, Units '.,

2, 3 & 4), ALAB- 90, NRC (1978).

The Shearon Harris opinion is essentially consistent with basic NEPA law on the need of the deciding federal agency to conduct an independent analysis which can include evaluation of pertinent material prepared by others. See, e.c., Sierra Club v. Lynn (CA Tex 1974), 502 F2d 43, reh den, 504 F2d 760, cert den, 421 US 994, 95 S Ct 2001, reh den 423 US 884, 96 S Ct 158, and see 42 USC 4332(2)(D), added to NEPA by PL 94-83, 89 Stat 424 (1975).

In light of the issue before it, much of the Appeal Board's discussion quoted above must be considered dictum. Moreover, its statement that conclusive reliance can be placed on a state regulatory commission's forecast is probably incorrect.

Furthermore, the opinion concerns reliance upon a detailed state forecast which was laid on the record and scrutinized by the parties, rather than a legislative policy declaration.

Nevertheless, the Shearon Harris opinion is instructive to this Board. Consistent with that opinion, the Board can give some, but certainly not conclusive, weight to 80.50.01 in making its NEPA decision. The forecasted rate of growth in electricity demand in Washington is a contested matter. More-6/ STATE OF OREGON'S MEMORANDUM REGARDING "NEED FOR PCWER"

over, the facts and analyses underlying RCW Sec. 80.50.01 were not placed upon the record. Therefore, the Board would abdi-cate its duty under NEPA if it treated RCW Sec. 80.50.01 as conclusive of the issue of whether the Washington utilities who will own a portion of Skagit need the output thereof.

Finally, of course, RCW Sec. 80.50.01 has absolutely no bearing on whether the Oregon utilities participating in Skagit need their portion of its output.

Respectfully submitted,

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RICHARD M. SANDVIK Assistant Attorney General Of Counsel to the Oregon Department of Energy 7/ STATE OF OREGON'S MEMORANDUM REGARDING "NEED FCR POWER"

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CERTIFICATE OF SERVICE .

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%,.r[, Q I hereby certify that true cooies of " State of Oregon's7

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Memorandum Regarding the Board's 'Need for Power' Question" were served on the following parties of record by deposit in the United States mail, postage prepaid, on the 30th day of January, 1979:

F. Theodore Thomsen, Esq. Valentine B. Deal, Chairman Perkins, Coie, Stone, Atomic Safety & Licensing Board Olsen & Williams U. S. Nuclear Regulatory Commission 1900 Washington Building Washington, D. C. 20555 Seattle, WA 98101 Dr. Frank Hooper, Member Robert Lowenstein, Esq. Atomic Safety and Licensing Board Lowenstein, Newman, Reis & Axelrad School of Natural Resources 1025 Connecticut Avenue N.N. University of Michigan Washington, D. C. 20036 Ann Arbor, MI 48104 Mr. Lloyd K. Marbet Gustave A. Linenberger, Member Mr. Eric Stachon Atomic Safety and Licensing Board Forelaws on Board U.S. Nuclear Regulatory Comm'n 19142 S. Bakers Ferry Road Washington, D. C. 20555 Boring, Oregon 97009 Alan S. Rosenthal, Chairman Richard L. Black, Esq. Atomic Safety and Licensing Staff Counsel Appeal Board Office of Executive Legal Director U.S. Nuclear Regulatory Cc=m'n U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Dr. John H. Buck, Member Secretary, Atomic Safety Atomic Safety and Licensing

& Licensing Board Appeal Board U. S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comm'n Washington, D. C. 20555 Washington, D. C. 20555 Roger M. Leed, Esq. Michael C. Farrar, Member 1411 Fourth Avenue Atomic Safety and Licensing Seattle, Washington 99101 Appeal Board U ,. S . Nuclear Regulatory Comm'n Mr. Nicholas D. Lewis Washington, D. C. 20555 Chairman, Energy Facility Site Evaluation Council 820 East Fifth Avenue Olympia, Washington 98504 1/ CERTIFICATE OF SERVICE

Docketing and Service Section Canadian Consulate General Office of the Secretary Peter A. van Brakel U. S. Nuclear Regulatory Comm'n Vice-Consul Washington, D. C. 20555 412 Plaza 600 6th and Stewart Street Russell W. Busch, Esq. Seattle, WA 98101 Evergreen Legal Services 5308 Ballard Avenue NW Donald S. Means Seattle, WA 98107 Box 277 La Conner, WA 98257 Robert C. Schofield, Director Skagit County Planning Dept. Richard D. Bach, Esq.

120 West Kincaid Street Rives, Bonyhadi, Drummond & Smith Mount Vernon, WA 98273 1400 Public Service Building 920 SN Sixth Avenue Warren Hastings, Esq. Portland, OR 97204 Associate Corporate Counsel Portland General Electric 121 SW Salmon Street Portland, OR 97204

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RICHARD M. SANOVIK Assistant Attorney General 2/ CERTIFICATE OF SERVICE