ML19284A671

Applicants' Comments Re State of Wa'S Determinations on Need for Power.Urges That Determinations Provide Suppl Justifications on Need for Power.Certificate of Svc Encl

ML19284A671
Person / Time
Site:	Skagit
Issue date:	02/09/1979
From:	Little D, Thomsen F PERKINS, COIE (FORMERLY PERKINS, COIE, STONE, OLSEN
To:
References
NUDOCS 7903150181
Download: ML19284A671 (12)

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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PUGET SOUND POWER & LIGHT ) Docket Nos. 50-522 COM PANY , et al. ) 50-523

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(Skagit Nuclear Power Project, ) February 9, 1979 Units 1 and 2) )

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APPLICANTS' MEMORANDUM RE SIGNIFICANCE OF DETERMINATIONS BY THE STATE OF WASHINGTON ON NEED FOR POWER By his letter dated December 12, 1978 to the Licensing Board, the Chairman of the Washington State Energy Facility Site Evaluation Council stated:

The Washington State Legislature has established the following state policy: "it is the policy of the State of Washington to recognize the "

pressing need for increased energy facilities . . . (RCW 80.50.010) and further "To provide abundant energy at reasonable cost." (RCW 80.50.010 (3)) . Despite recent amendments to chapter 80.50 RCW (the most recent being in 1977) no material changes have been made in the legislative determination since its enactment in 1970. Thus, the State of Washington has made a legislative determina-tion that there is, indeed, a pressing need for power.

At a prehearing conference on January 16, 1979, the Licensing Board requested a brief from the representative for the State of Washington on the legal impact of the State 's legislative determination upon the Licensing Board's decision 790315018l h

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making process in reaching a conclusion about need for power.

Tr. 11,500. This request was expanded in a later order to include not only legislative but also any executive, adminis-trative and judicial determinations by the State of Washington about the need for power. Post Conference Order, January 26, 1979, p. 2. The parties were invited to submit briefs on the subject on February 9,1979. This memorandum sets forth Ap-plicants ' comments.

As explained by the Appeal Board, "Need for power" is a shorthand expression for the

" benefit" side of the cost-benefit balance which NEPA mandates for a proceeding considering the licensing of a nuclear power plant.

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2 ) , ALA B- 4 22, 6 NRC 33, 90 (1977).

The traditional method for determining the need for power has been to review the reasonableness of an applicant's fore-casts of the demand for electrical energy and the need for additional generating capacity to meet that demand. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, 4), ALAB-490, 8 NRC 234, 237 (1978) ; Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No.1) ,

ALAB-462, 7 NRC 320, 327 (1978). In this proceeding, an ex-tensive record has been developed regarding Applicants' fore-casts of energy demand and generating resources. Several other forecasts have also been examined in great detail. Proposed findings of f act on this voluminous record have been sub-mitted. See Applicants' List of Principal Issues, January 9, 1979, pp. 25-26. In Applicants' assessment, the evidence that has been received in this proceeding clearly establishes the need for the Skagit Project.

The present proceeding is somewhat atypical, however, in that there are justifications of the need for the Skagit Pro-ject which supplement the forecasts already under consideration here. These supplemental justifications are administrative, executive and legislative determinations by the State of Washington to the effect that the Project is needed. These important determinations are identified and discussed below.

There is well established recognition in Atomic Safety and Licensing Appeal Board decisions that the need for power issue can be resolved in a number of ways other than the traditional approach outlined above. For example, authorization of the Seabrook facility was approved on the basis of it being a sub-stitute for oil-fired plants. Seabrook, ALAB-422, supra , 6 NRC at 95-99. The Appeal Board has also approved placing heavy reliance upon a state utility commission's demand forecast and upon a state siting board's determination regarding the public need for a proposed nuclear plant. Shearon Harris , ALAB-49 0, supra, 8 NRC at 237-241; Rochester Gas and Electric Corp.

(Sterling Power Project Nuclear Unit No.1) , ALAB-502, 8 NRC __

, (October 19, 1978) (slip opinion at 4-8) . These deci-sions in the Shearon Harris and Sterling proceedings clearly illustrate a trend toward deterring to the judgment of local regulatory bodies on the need for power question.

Administrative and Executive Determinations by the State of Washington On September 13, 1976 the Washington State Energy Facility Site Evaluation Council (formerly the Thermal Power Plant Site Evaluation Council) adopted its decision and order recommending to the governor that the certification application for the Skagit Proj ect be approved. That decision and order, which has been received as an exhibit in this proceeding (Exh. 84), sets forth the Council's findings of f act, including its findings on need for power. These findings were antered following a lengthy contested case proceeding in which intervenor SCANP was an active participant. The Council which heard that contested case was comprised of members f rom thirteen state agencies and a Skagit County Commissioner. The Acting Chairman of the Council for that proceeding was a representative of the State Utilities and Transportation Commission.

The need for power issue was vigorously contested during the certification hearings in May to July of 1975 and April 1976. The evidence presented by Applicants included the 1976 forecasts of loads and resources for each of the participants in the Skagit Project and for the region, and econometric fore-casts of electricity sales for Puget Sound Power & Light Co. ,

r the states of Oregon and Washington, and the West Group of the Northwest Power Pool. Specifically addressed in these presen-tations were a number of potential influences on future energy demand including conservation, price elasticity, price of com-peting fuels, and population trends. These same issues have, of course, been addressed in hearings before this Licensing Board. SCANP presented a witness who criticized some of the load forecasts presented by Applicants. Over three days of the hearings and 750 pages of the transcript were spent on the need for power issue.

The Council's findings of fact include a comprehensive review of the evidence on the need for power question. Exh.

84, pp. 50-62. The Council's conclusion was that:

Weighing all of the evidence, the Council finds that the demand forecasts presented by Applicant are reasonable, that proj ections of future capacity are reasonable, that the additional electric power to be generated by the Project will be required to meet the future needs of the Pacific Northwest region, and that it is prudent and in the public interest to plan the Project for completion as presently scheduled in order to assure the citizens of the State of Washington an adequate supply of electrical er.ergy.

Exh. 84, p. 62.

The appropriate deference to be given to this need for power determination by the Washington State Council should be decided in accordance with the Appeal Board's recent decision in the Sterling proceeding. In that case, the Appeal Board deferred its decision on the need for power issue until the New York State siting board had first ruled upon the issue pending

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before it of the need for the proposed facility. Sterling, ALAB-502, supra, 8 NRC at (slip opinion at 4-8) . The siting board there, like the Council here, included a member from the state public utilities commission and could "be ex-pected to possess considerable familiarity with the primary f actors bearing upon present and future [electricityl demand . . .

Therefore, the Appeal Board announced that it would give " great weight" to the findings of fact and con-clusions of law "unless shown to ' rest upon a fatally flawed foundation'", and assuming the basis for state agency's decision would be developed in some detail. Id., n. 13, 8 NRC at (slip opinion at 8) . The Council's determination re-garding need for the Skagit Project was, of course, explained in considerable detail in its findings of fact. Hence, the Council's determination is entitled to substantial deference here and provides a solid supplemental justification for the Skagit Project.

The Council's administrative determination that the Skagit Project will be needed was followed by an executive deter-mination to the same effect by the then governor of the State of Washing ton, Daniel J. Evans. His order approving certifi-cation of the Skagit Project, as recommended by the Council, is also in evidence in this proceeding. Exh. 85. In that order, Governor Evans found, inter alia, that tne Skagit Project "will balance the increasing demands for energy f acility location and operation in conjunction with the broad interests of the public" and further that " approval, construction and operation of the Project will be based on the premises specified in RCW 80.50.010". As discussed in more detail below, one of those premises is "to provide abundant energy at reasonable cost."

RCW 80. 50.010 (3) ; Exh. 86. Subsequently, the present Governor of the State of Washington, Dixy Lee Ray, advised this Board of her position with respect to the Skagit Project by her letter dated February 24, 1977, which reads in part as follows:

I invite the Board's attention to the fact that the State of Washington, after thoroughly reviewing all aspects of the matter, including the need for power question, has approved the Skagit Project. This approval is set forth in the Site Certification Agree-ment signed on January 5, 1977, by my predecessor, Governor Daniel J. Evans, and Puget Sound Power &

Light Company.

As for my position, I would like the Board to know that I support nuclear power as a safe, depend-able, additional source of electricity, that I agree with the action of the previous administration in approving the Skagit Project, and that I trust that it will move ahead on-line to begin supplying us with electricity in the next decade.

Tr. NFP pp. 1742-A and B. These actions by the chief executive of the State of Washington provide additional supplemental justification of the need for the Skagit Project.

Determination by the Washington State Legislature The Washington law on the siting of energy facilities, Chapter 80.50 RCW, provides in pertinent part that:

The legislature finds that the present and pre-dicted growth in energy demands in the State of Washington requires the development of a procedure for the selection and utilization of sites for energy facilities. . .

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

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:

(3) To provide abundant energy at reasonable cost.

RCW 80.50.010; Exh. 86.

The Appeal Board has not, as yet, directly addressed the question of the weight to be given to state legislative deter-minations. In the Seabrook proceeding, the Appeal Board did note that the basis for their decision that the plant was needed (namely, the substitution theory) was consistent with the Presidential policy of reducing oil imports. Seabrook, ALAB-422, supra n. 70, 6 NRC at 99. The logical extention of the previously mentioned Appeal Board decisions in the Shearon Harris and Sterling proceedings is that legislative determina-tions regarding the need for a project can be given con-siderable weight by a licensing board. A state legislature, as much as any other body, has the duty of insuring that electri-cal energy supplies will be sufficient to meet future demands in the state. In addition, a state legislature can reasonably be expected to be familiar with the trends in economic activity and projected energy demands and with the consequences of energy shortages. Hence, the judgments of the Washington State Legislature should, in Applicants' opinion, be given consider-able deference.

The Washington State Legislature determined that there is a pressing need for increased energy f acilities in the State of Washington and that there should be an abundant supply of energy at a reasonable cost. How do these findings apply to the need for the Skagit Project? Puget Sound Power & Light Company (a 40% co-owner of the Project) has all of its cus-tomers within the state and The Washington Water Power Company (a 10% co-owner) has many of its customers there. In addition, a portion of the service' territory of Pacific Power & Light Company (a 20% co-owner) is within the state. Thus, a sub-stantial part of the power to be produced by the Skagit Project will serve the demand within the State of Washington and the Washington legislative determination should be weighted accordingly.

Applicants do not urge that the state determinations are dispositive of the need for power question be' fore the Licensing Board. Indeed, wholly apart from these determinations, the extensive record compiled here clearly establishes that there is a need for the Skagit Project. What the state deter-minations provide are significant supplemental justifications of the need for the Project.

DATED: February 9, 1979 Respectfully submitted, PERKINS, COIE, STONE, OLSEN T, WILLIAMS

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B F. Theodore Thomsen By ( ,

Ddyg.as G. Little Attorneys for Applicants 1900 Washington Building Seattle, Washington 98101 Of Counsel:

Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.

Washing ton, D. C. 20036 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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PUGET SOUND POWER & LIGHT COMPANY,) DOCKET NOS.

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2 FEB 1.2197d F CERTIFICATE OF SERVICE h7 c,r a +. s=*<a e g 5'"

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I hereby certify that the following: "'I APPLICANTS' MEMORANDUM RE SIGNIFICANCE OF DETERMINATIONS BY THE STATE OF WASHINGTON ON NEED FOR POWER in the above-captioned proceeding have been served upon the persons shown on the attached list by depositing copies thereof in the United States mail on February 9, 1979 with proper postage affixed for first class mail. ,

DATED: February 9, 1979

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J Theodore Thomsen 4b &

Counsel for Puget Sound Power &

Light Company 1900 Washington Building Seattle, Washington 98101

'".- Date: February 9, 1979 Valentine B. Deale, Chairman Nicholas D. Lewis, Chairman Atomic Safety and Licensing Board Energy Facility Site Evaluation 1001 Connecticut Avenue, NkW. Council Washington, D.C. 20036 820 East Fifth Avenue Olympia, WA 98504 Dr. Frank F. Hooper, Member Atcmic Safety and Licensing Board Robert C. Schofield, Director School of Natural Resources Skagit County Planning Department University of Michigan 120 West Kincaid Street Ann Arbor, MI 48104 Mount Vernon, WA 98273 Gustave A. Linenberger, Member Richard M. Sandvik, Esq.

Atomic Safety and Licensing Board Assistant Attorney General U.S. Nuclear Regulatory Commission Department of Justice Washington, D. C. 20555 500 Pacific Building 520 S.W. Yamhill Alan S. Rosenthal, Chairman Portland, OR 97204 Atomic Safety and Licensing Appeal Board Robert Lowenstein, Esq.

U.S. Nuclear Regulatory Commission Lowenstein, Newman, Reis & Axelrad Washington, D. C. 20555 1025 Connecticut Avenue, N.W.

Washington, D. C. 20036 Dr. John H. Buck, Member Atomic Safety and Licensing Warren Hastingd, Esq.

Appeal Board Associate Corporate Counsel U.S. Nuclear Regulatory Commission Portland General Electric Company Washington, D.C. 20555 121 S.W. Salmon Street Portland, OR 97204 Michael C. Farrar, Member Atomic Safety and Licensing CFSP and FOB Appeal Board E. Stachon & L. Marbet U.S. Nuclear Regulatory Commission 19142 S. Bakers Ferry Road Washington, D.C. 20555 Boring, OR 97009 Docketing ar Service Section Canadian Consulate General Office of the Secretary Peter A. van Brakel U.S. Nuclear Regulatory Commission Vice-Consul Washington, D. C. 20555 412 Plaza 600 (original and 20 copies) 6th and Stewart Street Seattle, WA 98101 Richard L. Black, Esq.

Counsel for NRC Staff Donald S. Means U.S. Nuclear Regulatory Commission Box 277 Office of the Executive Legal La Conner, WA 98257 Director Washington, D.C. 20555 Richard D. Bach, Esq.

Rives, Bonyhadi, Drummond & Smith Roger M. Leed, Esq. 1400 Public Service Building 1411 Fourth Ave. Bldg. #610 920 S.W. 6th Avenue Seattle, WA 98101 Portland, OR 97204 Russell W. Busch, Esq. Thomas F. Carr, Esq.

Evergreen Legal Services Assistant Attorney General 5308 Ballard Avenue N.W. Temple of Justice Seattle, , WA 98107 Olympia, WA 98504 12/13/78