ML19289F043

Applicants' Response in Opposition to 780417 Motions by Intervenors Miami Valley Power Project & Fankhauser to Delay OL Hearing & Suspend Activities.Certificate of Svc Encl

ML19289F043
Person / Time
Site:	Zimmer
Issue date:	05/07/1979
From:	Conner T CONNER, MOORE & CORBER
To:
References
NUDOCS 7906010137
Download: ML19289F043 (13)

Text

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MAY 8 1979 ) r UNITED STATES OF AMERICA -

1 NUCLEAR REGULATORY COMMISSION i

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s In the Matter of f 4 03

)

The Cincinnati Gas & Electric ) Docket No. 50-358 Company, et al. )

) *

(William H. Zimmer Nuclear )

Power Station) )

APPLICANTS' RESPONSE TO MIAMI VALLEY POWER PROJECT I AND DR. FANKHAUSER'S MOTION TO DELAY THE .

ZIMMER PROCEEDING .,_ _

I On April 17, 1978, the Miami Valley Power Project l

3 (" Project") moved the Atomic Safety and Licensing Board i

(" Licensing Board") to delay the operating license hearing ,

for the William H. Zimmer Nuclear Power Station ("Zimmer -

Station") until "after forthcoming reports and studies l t

precipitated by the accidents at the Three Mile Island  :

Nuclear Power Station Unit 2 have been published; and until after the Applicants have demonstrated thau no such accidents could occur at the Zimmer Station." Furthermore, the Miami ,

Valley Power Project moved for additional time for discovery on Contention 13. On the same date, Dr. Fankhauser moved for a continuance of the scheduled hearing on.similar grounds.

E As discussed below, neither of the intervenors' motions have merit and both should be denied.

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1/ Dr. Fankhaussr's pleading to counsel for the Applicants was addressed to the wrong Zip Code and only received on April 25, 1979.

790eoir137 2234 167

Initially, as recognized by Dr. Fankhauser, " substantial differences exist in the design of the effected (sic] power station at Three Mile Island from that of the Zimmer Nuclear Power Station . . . . To emphasize this point, Three Mile Island.is a pressurided water reactor, utilizing a Babcock &

Wilcox nuclear steam supply system ("NSSS") while the Zimmer Station is a boiling water reactor with the NSSS supplied by the General Electric Company. The equipment and principles of operation are so different as. to make a. comparison impossible; there is no way to impute a Three-Mile-Island-Unit-2-type incident to the Zimmer Station. Thus, there is absolutely no reason to attempt to single out the Zimmer Station for special consideration at this time.

The argument that this Licensing Board should stay these proceedings is by definition grounded on the implicit proposition that the Nuclear Regulatory Commission, which is intensively investigating the Three Mile Island Unit 2

, incident and the need to change its regulations or licensing requirements, will fail to take every action to protect the public health and safety. During the ongoing investigative process, the NRC has given no indication that, for facilities like Zimmer, the licensing of reactors, let alone all phases of the licensing process, are to come to a complete halt.

Of course, any changes to NRC regulations and the licensing process applicable to plants such as Zimmer will be implemented at the appropriate time. Until the Commission has acted, it 2234 168

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is both beyond its jurisdiction and, in any event, premature for this Board to attempt on an ad hoc basis its own investi-gation and application of any new requirements to the Zimmer station. Until the investigations are at.a later stage, it is sheer folly to try to act on preliminary and incomplete information. This Licensing Board should not permit, contrary to every indication from the Commission, a da facto morat;orium in the licensing of the Zimmer Station.

Assuming arguendo that there is even a scintilla of validity to the claim that licensing actions should not be taken until the various investigations are in a later stage, absolutely nothing has been advanced by either in-tervenor as to why the prehearing conference presently scheduled for the week of May 21, 1979 and the evidentiary hearings scheduled for two weeks in June should not go forward. We submit that all matters can and should be considered during the hearings and the Licensing Board should use current licensing requirements until otherwise directed by the Commission. These proceedings have been planned far in advance to accommodate the. schedules of the members of .

the Licensing Board and parties, and no delay should be permitted. Any change in schedule is certain to bring with it substantial de,LRVE; and threaten the timely completion of this proceedi@j.,

In afic e, , use two motions request stays in this proceeding and must be tested against the requirements of 10 2234 169

C.F.R. 52.788(e). Inasmu"' as neither intervenor has addressed these factors, the motions may be denied out of hand. However, even a cursory review of these motions against factors in 52.788 (e) demonstrates conclusively the 3

idtervenors, who have the burden of proof on these motions, cannot prevail.

It is clear that the four criteria first enunciated by ,

_ the District.of Columbia Circuit in Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 925 (D.C. Cir. 1958) are to be utilized in deciding whether proceedings before a licensing board should be stayed. These factors, as embodied by 10 C.F.R. 52.788 are as follows:

A

1. whether the moving party has made a strong showing that is likely to prevail on the merits; 2-. whether the party will be irreparably injured unless a stay is granted;

3. whether the granting of a stay would harm other -

parties; and 3/

4. where the public interest lies.-"-

The burden of persuasion is on the party seeking the stay and that party " bears the burden of marshalling the evidence

_2/ Allied-Gencral Nuclear Services (?arnwell Nuclear Fuel Plant Separations Facility), ALAB-296, 2 NRC 671, 677-678 (1975). ,

3/ This section codified established prior Commission practice, based on the Virginia Petroleum Jobbers decision. Public Service Company of Oklahoma (Black Fcx Station, Units 1 and 2), d ,_<-505,. 8 NRC 527, 529-530 (1978); Roches :er Gas and

.Electr.; Corp. (Sterling Power Project, Nuclea: Unit No. 1) ,

ALAB-507, 8 NRC 551, 556 n.18.

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and making the arguments which demonstrate his entitlement to it." A movant has the obligation "to come to grips 5/

with each of the factors in its papers. "-

In applying the four criteria, a board must balance 5

them all: "the strength or weakness of the showing by the movant on a particular factor influences . . . how strong his showing on the other factors must be. . . . However, the "most crucial" factor in ruling on stay requests has been held to be "the showing of irreparable injury to the movant." Without an appropriate showing of irreparable 8/

, injury, a stay will not ordinarily be granted. In addition, "an overwhelming showing of likelihood.of success on the ,

merits" is required where the showing on the other factors  !

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has been weak i

With regard to the first criterion, intervenors have made no showing that they will ultimately prevail on the .

t merits of this case. Aside from generalities, they have 4/ Consumers Power Co. (Midland Plant, Units 1.and 2), _. __

ALAB-395, 5 NRC 772, 785 (1977); Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), AIAB-493, 8 NRC 253, 270-271 (1978).

5/ Black Fox, AIAB-505, 8 NRC at 530.

j Public Service Company of New Hampshire (Seabrook Station,.

Units 1 and 2), ALAB-338, 4 NRC 10, 14 (1976); Public Service Comeany of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-437, 6 NRC 630, 632 (1977);

Black Fox, ALAB-505, 8 NRC at 530.

J Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-77-27, 6 NRC 715, 616 (1977); Marble Hill, ALAB-437, 6 NRC at 632.

_,,y Sterling Power Project, ALAB-507, 8 NRC at 556.

J Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-404, 5 NRC 1185, 1189 (1977).

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pointed to no specific deficiency in the design of or ap-plication for the Zimmer Station which would indicate a substantial likelihood of prevailing. The differences between Three Mile Island Unit 2 and the Zimmer Station have already been discussed. Moreover, with regard to the second factor, there is no irreparable injury even possibly as-sociated with the holding of the evidentiary hearings. On the other hand, a delay in the commencement of the hearings leading to a delay in the issuance of an operating license will undoubtedly harm the Applicants and their ability to provide reliable electrical service to their customers. We submit that the public interest lies in adhering to the longstanding schedule in this proceeding. ,

The Project.has alleged there is no need for power from the Zimmer Station. As may be seen from the attached affidavit of Robert Wiwi, the Project's reasoning, methodology and conclusions are erroneous. As discussed therein and in the " Supplemental Motion for Summ ey Disposition," dated -.

April 23, 1979, should the Zimmer Station not be available to meet peak loads during 1980, the reliability of A'pplicants' systems would be considerably reduced and below acceptable levels. This represents an independent reason why the request for a stay should be denied.

10/ Contrary to the requirements of 10 C.F.R. S2. 788 (a) (4) ,

the facts upon which the Project relies are not contained in an affidavit signed by a knowledgeable person.

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Finally, it must be emphasized that the Commissioners met on several occasions to determine whether to halt opera-tion of reactors of the Three Mile Island type. On April 27, 1979, the Commission voted and decided that it would not halt operations at these plants once certain modifications peculiar to the Babcock & Wilcox design were Leade (In the Matter of Continuation of Factors Related to Current Status of Operating Reactors, see Tr. pp. 62-64, 69-72, 74-75). Hence, it is clear that the Commissioners in effect established a policy for the agency that there would be no interruption of licensing while the review of the Three Mile Island event is made. The intervenors' motion hera would.have this Licensing Board re-verse that Commission policy.

For the. foregoing reasons, the request to suspend licensing activities and defer the hearings should be denied.

The same considerations apply to the motion to reopen dis-covery as to Contention 13 and this request should likewise be denied.

Respectfully submitted, CONNER, MOORE & CORBER 7 -

Tro er, Jr.

Counsel for the Applicants May.7, 1979 2234 173

' STATE OF CHIO )

) SS COUNTY OF HAMILTON )

AFFIDAVIT OF ROBERT P. WIWI Robert P. Wiwi, being first duly sworn according to law ccmes forward and states:

1. My name is Robert P. Wiwi. I am employed at The Cincinnati Gas & Electric Ccmpany (CG&E) as Vice President-of Electric Operations. In that position, I am responsible for, among other duties, the formulation of CG&E's long term energy and demand fcrecast and the determination of additional generation capability required so as to maintain an adequate generating reserve margin. A statement of my prof essional ,

. qua14 *ications is attached and incorporated by reference j herein. .

2. I have read "Intervenor Miami Valley Power Project's Motion to Delay The Operating License Hearings And To Extend The Time For Discovery" . Certain allegations contained in that Motion are inaccurata or misrepresentative for the following reasons:

A.) The conservation of energy that was a neces-sity during the coal strike in the winter of 1977-1978 was an important facter in the 1.1% rate of increase in electric kilowatt hcur (kwh) sales in 1978 ccmpared to 1977. However, for the first one hundred days in 1979 CG&E's custcmers used 11.4%

more energy then during the same period in 1978.

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B.) The alleged 1978 generation reserve margin of 34% asserted in the above Motion is inccrrect in that it is based on the winter capability of CG&E's generating capacity as reported in CG&E's 1978 Anmm1 Report. Scme generating units are derated for summer operating conditions and it is this summer capability that must be used in determining the percent reserve margin at the time of the. anmm1 peak demand which occurs in the summer for CG&E. The reserve margin for the 1978 summer peak using actual summer capability was 26.8%. With the peak load projected for a typical

" hot spell" in CG&E's service area, the reserve margin would have been 22 7%..

C.) The peak load forecasted for the summer of

. 1980 is 3218 mcgawatts and represents an annual ccmpounded growth rate of 4.8% over the projected peak demand that could have occurred had CG&E ex-perienced a typical " hot spell" in 1978. The projected reserve margin in 1980 with Zimmer Unit 1 in service will be 21.6%. If the unit is not in

. _ service the reserve margin will be 11.7%. Without Zimmer Unit 1 in service in early 1980, the reserve margin will be far below the desired reserve range of 18-25% and could have a serious impact on CG&E's ability to provide reliable electric service to its custcmers.

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D) . While the in-service dates of four jointly-owned 600 megawatt coal-burning units have been def erred, these deferrals were based on the presumption that the Zimmer Unit 1 would be placed id service as scheduled.

A m' Robert P . Wiw3.

Sworn to before me this 1d 8' day of M ^n %'( , 1979. _ . ,

V l<voph.fb-,w, ... . . . . . - . . - - - - - . - .

v My Canmission expires .

MARY B. r.-inmu Notary Public. Cate Of Ohio My Commission Egtres July 23. IS((

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QUALIFICATIONS ROBERT P. WIWI VICE PRESIDENT - ELECTRIC OPERATIONS THE CINCINNATI GAS & ELECTRIC COMPANY My name is Robert P. Wiwi. My place of business is Fourth and Main streets, Cincinnati, Ohio. I am Vice President of Electric Operations of The Cincinnati Gas & Electric Company.

I received a Bachelor of Science Degree in Electrical Engineering from the University of Cincinnati in 1964. I received a Master of Business Administration Degree from Xavier University in 1969. I also attended an Electric Utility Management Program at the University of Michigan in 1972. I have been employed'by The Cincinnati Gas & Electric Company andf its Subsidiaries since 1964. I have held various positions in the Electric Department in both the operating and planning ,

divisions. I was Manager of the Electric Operations Department from May, 1972 until May, 1976 when I became Vice President of Electric Operations.

I am a member of the Institute of Electrical and Electronic Engineers, the Association of Edison Illuminating Companies and the Coordination Review Committee of East Central Area Reliability (ECAR) .

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N UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

The Cincinnati Gas & Electric ) Docket No. 50-358 Company, et al. )

)

(William H. Zimmer Nuclear Power )

Station) )

CERTIFICATE OF SERVICE

,Iherebycertifythatcopiesof"Applh. cants' Response to Miami Valley Power Project and Dr. Fankhauser's Motion to

- Delay the Zimmer Proceeding," dated May 7, 1979, in the captioned matter, were served upon the following by deposit in the United States mail. this 7th da_r of May, 1979:

Charles Bechhoefer, Esq. Michael C. Farrar, Esq.

Chairman, Atomic Safety Atomic Safety and Licensing and. Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

- Dr. Frank F. Hooper, Member Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Appeal Board Panel Board U.S. Nuclear Regulatory School of Natural Resources Commission University of Michigan Washington, D.C. 20555 Ann Arbor, Michigan 48109 Chai , Atomic Safety and Mr. Glenn O. Bright, Member Licensing Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Charles A. Barth, Esq.

Counsel for the NRC Staff Richard S. Salzman, Esq. Office of the Executive Legal Chairman, Atomic Safety and Director Licensing Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Ccmmission Washington, D.C. 20555 Washington, D.C. 20555 William J. Moran, Esq.

Dr. Lawrence R. Quarles General Counsel Atomic Safety and Licensing '

Cincinnati Gas & Electric Appeal Board - *

- Company U.S. Nuclear Regulatory Post Office Box 960 Commission Cincinnati, Ohio 45201 Washington, D.C. 20555 -

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Mr. Chase R. Stephens Docketing and Service Section Leah S. Kosik, Esq.

Attorney at Law office of the Secretary 3454 Cornell Place U.S. Nuclear Regulatory Cincinnati, Ohio 45220 Commission Washington, D.C. 20555 John D. Woliver, Esq.

Will4== Peter Helle, Esq. Clermont County Commm4 ty Assistant City Solicitor Council City of Cincinnati Box 181 Box 214 Batavia, Ohio 45103 C4nc4nnati, Ohio 45202 '

N .

B. Conner, JrU e

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