ML19305C517
| ML19305C517 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 03/10/1980 |
| From: | Harold Denton Office of Nuclear Reactor Regulation |
| To: | |
| Shared Package | |
| ML19305C515 | List: |
| References | |
| DD-80-10, NUDOCS 8003310008 | |
| Download: ML19305C517 (8) | |
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- DD 10 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION HAROLD R. DENTON, DIRECTOR In the Matter of
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Docket No. STN 50-486 UNION ELECTRIC COMPANY
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(Callaway Plant Unit 2)
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INTERIM DECISION UNDER 10 CFR 2.206 By petition dated August 14, 1979, the Public Service Comission of the State of Missouri (hereinafter referred to as PSC) pursuant to 10 CFR 2.206 of the Comission's regulations requested the Director of the Office of Nuclear Reactor Regulation, the Director of the Office of Nuclear Material Safety and Safeguards, and the Director of the Office.of Inspection and Enforcement to is:;ue a show cause order to suspend the construction pennit granted to Union Electric Ccmpany for Callaway Plant, Unit 2.
This matter was referred to the Director of the Office of Nuclear Reactor Regulation because the subject matter of the requested action was within the jurisdiction of this office. Notice of receipt of the PSC petition was published in the Fe'deral Register, 44 Fed. Reg. 53116 (Sept.12,1979).
The basis for the PSC's requested action is recent infonnation developed by the PSC (in Preliminary Union Electric Company Peak Demand Projection) which' indicates that the peak demand forecast of Union Electric Company may be erroneous.
The PSC states that the National Environmental Policy Act, (NEPA) 42 U.S.C. 4321 el seq., and the NRC's regulations implementing NEPA,10 CFR Part 51, require the Comission to consider the environmental effects of the power to be generatedbyCIlliawayPlant, Unit 2.
The PSC contends that in light of the recently discovered facts on peak demand forecast, this statutory obligation 8003310 d
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2-requires the NRC to suspend the construction permit while the facts upon which the pemit was initially granted are reassessed.
For the reasons set forth in this decision, I have determined that no final decision on suspension of the construction permit for Callaway Plant, Unit 2 should be made at this time. A final decision on this matter should await the outcome of the hearings scheduled by the Missouri Public Service Comission for the spring of 1980.
I An examination of the need for the generating capacity of a nuclear power plant is required to fulfill the Ccmission's obligations under NEPA. In a decision in the Seabrook case,~ Public Service Co. of New Hampshire (Seabrook Station, Units 1&2), ALAB-422, 6 NRC 33, 90 (July 26,1977),
the Appeal Board explained:
"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....
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 Co.
(Catawba Nuclear Station, Un'its 1&2), ALAB-355, 4 NRC 397, 405 (October 29, 1976)."
Not only must the Comission detemine that a need for the generating l
capacity of the plant exists, but it must also detennine that the nee,d for the p'lant coincides reasonably with the operational date of the plant. The reason the NRC concerns itself with the timing of tne need for power is that a federal agency should not pennit the environmental impacts of costs of a. proposed action to be incurred earlier than necessary. The intent of NEPA is that any irretrievable e
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. and irreversible cormitments of resources should not be made while environmentally less damaging alternatives may exist or may be developed. Cf. Scientists' Institute for Puolic Information, Inc. v. AEC, 481 F.2d 1979 (D.C. Cir.1973).
The Commission has recognized, however, that some uncertainty is inherent in any prediction of the need for or demand for the electricity to be generated by a nuclear plant.
"[E]very prediction has an associated uncertainty and
...long range forecasts of this type are especially uncertain in that they are affected by trends in' usage, increasing rates, demographic changes, industrial growth or decline, the general state of the economy etc. These factors exist even beyond the uncertainty that inheres in demand forecasts: assumptions on continued use from historical data, range of years considered, the area considered, extrapolations from usage in residential, commercial, and industrial sectors, etc." Carolina Power & Licht Co. (Shearon.
Harris Nuclear Power Plant, Units 1, 2, 3 & 4). CLI 5, 9 NRC 609-610 (1979).
Moreover, the Atomic Safety and Licensing Appeal Board has stated, "[gliven the legal responsibility imposed upon a public utility to provide at all times adequate, reliable service - and the severe consequences which may attend upon a failure to discharge that responsibility - the most that can be required is that the forecast be a reasonable one in the light of what is ascertainable at the time made." Kansas Gas & Electric Co., Kansas City Power & Light Co. (Wolf Creek Generating Station, Unit No.1.) ALAB-462, 7 NRC 320, 328 (1978) (citations omitted). Consequently, applicants have never been required to demonstrate that need for the capacity of a plant and its proposed operational date coincide I
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II During the construction pennit proceeding for the Callaway plants, the Nuclear Regulatory Commission in acenrdance with NEPA and the Commission's own regulations implementing NEPA,10 CFR Part 51, made a good faith assessment of the need for power from the Callaway Plants based on the information then available to it and authorized construction based on that assessment. III The Public Service Commission has now submitted to the Commission a Preliminary Peak Demand Projection which reaches a different, i.e., a lower demand forecast than that currently projected by Union Electric. ***/ The PSC's
- / As the Appeal Board has stated:
"[i]f the electricity to be produced by a proposed project is genuinely needed...then the societal benefits achieved by having that electricity available are inmeasurable. Those benefits need not be discounted because some possibility exists that the need for. power may develop nearer the end than the beginning of the forecast spectrum. The adverse consequences to the public of insufficient generating capacity are serious ones, (discussed suora, p. 364, n.57), far more so than those flowing from having the plant on line a. year or even two before its capacity is absolutely necessary. " Niacara Mohawk Power Corcoration (Nine Mile Point Nuclear Station, Unit 2), ALAB-264,1 NRC 347, 368-69 (1975).
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Union Electric Co. (Callaway Plant, Units 1 & 2), Partial Initial Decision, LBP-75-47, 2, NRC 319, 335-340 (1975); Initial Decision, LBP-76-15, 3 NRC 445 (1976), affd, ALAB-347, 4 NRC 216 (1976); ALAB-426, 6 NRC 206 (1977).
- * */ By letter dated February 17, 1977, Union Electric Company informed the Commission that it was revising the scheduled operation date for Callaway, Unit 2 from April 1,1983, to April 1,1987.
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. Report concludes, "While Unit 2 is planned for comoletion in 1987, the graph shows that it is not needed until after 1988.
If Unit 2 were finished as UE plans, there will be approximately 1,350 megawatts of excess capacity in 1987 above that which is projected by the staff [PSC Staff] model." The PSC asserts that in light of these recently discovered facts, "the NRC would be derelict in its statutory obligation if it did not suspend this construction while the facts upon which the agenc[y] granted...the...[ construction] pennit four years ago are reassessed in light of this change." PSC petition at p.5.
As was noted in an earlier. decision on a request for action under 10 CFR 2.206,7 the Appeal Board for the Commission has dealt with efforts to reopen the record of proceedings in situations analogous to that presented by this 2.206 peti tion. The Appeal 6,ard noted in Duke Power comoany (Catawba Nuclear Station, Units 1 and 2), Al.AB-359, 4 NRC 619, 620-21 (1976):
"Af ter a decision has been rendered, a dissatisfied litigant who seeks to persuade us - or any tribunal for that matter -
to reopen a record and reconsider 'because some new circunstance has arisen, some new trend has been observed or some new fact discovered,' has a difficult burden to bear.
The reasons for this were cogently given by Mr. Justice Jackson more than 30 years ago in ICC v. Jersey City, 332 U.S. 503, 514 (1944):
One of the grounds of resistance to administrative process has been the claims of private litigants to be entitled to rehearings to bring the record up to date and -
meanwhile to stall the enforcement of the administrative order. Administrative consideration of evidence - particularly where the evidence is taken by an examiner, his report subnitted to the parties, and a hearing held on their exceptions to it -
always creates a gap between the time the record is closed and the time administrative decision is promulgated. This is especially true if the issues are difficuit, the evidence.
intricate, and the consideration of the case deliberate and Y eorgia Power Co. (Alvin W. Vogtle Nuclear Plant, Un'ts it2), 0D-79-4, 9 NRC G
582, 584.-85 (1979).
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6-careful. If upon the ceming down of the order; litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact dis-covered, there would be little hope that the administrative process could ever be consumated in an order that would not be subject to reopening."
There is, however, another factor to be considered in this case. The Comission has,in the past, placed heavy reliance on infonnation developed by local regulatory bodies which are charged with the duty of insuring that utilities within their jurisdiction fulfill the legal obligation to meet customer demands.
Carolina Pewer & Licht Comoany (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), ALAB-490, 8 NRC 234, 241 (1978), aff'd. CLI-79-5, 9 NRC 607, 608 (1979).
The Missouri Public Service Comission has scheduled a hearing to begin in April 1980 on the generation expansion program of Union Electric Company. This proceeding will consider the revised peak forecast for the utility and will determine whether or not to proceed to reconsider the matter of the certificate of public convenience and necessity for Callaway, Unit 2.
As described in the petition, the PSC retains jurisdiction over the construction of a generation facility by virtue of its statutory authority to grant a certificate of public convenience and necessity and its authority to set rates. Under this jurisdictional authority and based on the infonnation to be developed in its up-coming hearings, the PSC could conceivably withdraw the certificate issued to Union Electric Company for Callaway Unit 2 upon a fir. ding that Unit 2 is not needed to maintain the Company's electric plant for safe and adequate service at reasonable rates. The PSC's final. determination on this matter is expected in the fall of 1980. See PSC petition at pp. 2-3.
No construction is currently taking place on the Callaway Unit 2 facility.
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7-Callaway is a two-unit facility in which construction of Unit 1 is far advanced.
The principal environmental impacts associated with construction of both units which were identified in the FES, f.e., site clearing and excavation, have already occurred. Furthemore, the Permittee has indicated by letter dated January 4,1980, that, apart from work on certain facilities which are closely associated with Unit 1 no major construction of plant structures for the Callaway Unit 2 plant will be resumed until sometime in early 1981. / Thus, the remaining environmental impacts resulting solely from the construction of Unit 2, principally socioeconomic impacts of construction and those associated with the building of the Unit 2 cooiing tower, will be delayed until sometime in 1981.
In light of the Commission's practice of placing great weight on the. decision of local regulatory bodies in the area of need for pcwer and the current hiatus in Unit 2 construction, I have detemined that no action need be taken on PSC's request for a hearing to consider the effect of changes in the peak load forecast for Union Electric Company until after the completion of its hearings con,cerning the utility. The PSC's decision is expected in the fall of 1980. No construction of Callaway Unit 2 is scheduled to begin until 1981. Consequently, no prejudicial delay to either the petitioner or to the utility will result from deferring. a decision cn this petition pending the outcome of PSC's proceeding, nor will any premature e'nvironmental impacts from constnJction take place. D III Based on the foregoing discussion, I find that consideration of PSC's petition for a show cause order to suspend the construction permit for Callaway
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Letter from John K. Bryan, Vice President, Union Electric Ccmpany t'o Harold R. Denton, dated January 4, 1980. See Attach ent 1.
- / Deferral here of final action pending completion of state proceeding is consistent with the action of the Appeal Board in a similar situation.
See Rochester Gas & Electric Corocration, et al.
Unit No.1). ALAB-502, 8 NRC 383 (19787- ~~ (Sterling Power Project, Nuclear Sne. - E 'e
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, Unit 2 should be deferred pending submission by PSC of its final decision in its proceeding on the generation expansion program of Union Electric Company.
A cooy of this interim decision
- l be placed in the Commission's Public Document Rocm at 1717 H Street, N.W., Ws
- hingtca, D. C. 20555, and the local public document rooms for the Callaway Nuclear Plant, Unit 2, located at Fulton City Library, 709 Market Street, Fulton, Missouri 65251 and Olin Library of Washington University, Skinker & Lindell Boulevard, St. Louis, Missouri 63130.
FOR THE NUCLEAR REGULATORY CCMMISSION
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Harold R. Denton, Director Office of Nuclear Reactor Regulation Dated at Bethesda, liaryland this /s3 fay of March,1980
Attachment:
1/4/80 Ltr to Denton fm Bryan / Union Elec. Co.
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UNION ELECTRIC COMPANY teos onATror sTRErr ST. Louis. Missount January 4, 1980
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Mr. Harold R. Denton, Director Office of Nuclear Reactor Regulation U. S. Nuclear Regulatory Commission Washington, D.
C.
20555 ULNRC-332
Dear Mr. Denton:
DOCKET NO. STN 50-486 CALLAWAY PLANT, UNIT 2 REQUEST FOR ACTION UNDER 10 CFR 2.206 By letter dated September 28, 1979, Messrs. Gerald Charnoff and Thomas A.
Baxter, Counsel for Union Electric Company, submitted comments on our behalf relative to the Missouri Public Service Commission's request for institution of proceedings to suspend the Construction Permit for Callaway Unit 2 as provided for in 10 CFR 2.206.
In addition to the information provided by Counsel in that letter, we are pleased to submit this report on the current status and projection of construction efforts on Callaway Unit 2.
At this time, no major field construction activity is in progress.
Excavation for Un.t 2 was completed concurrent with work on Unit 1.
d Limited portions of underground piping and electrical duct banks associated with Unit 2 continue to be installed, along with subfoundations of the emergency service water pump house and cooling tower.
This work has been undertaken because its close proximity to Unit 1 structures renders it infeasible for construction to be deferred.
Apart from this work and based on our current schedule for Unit 2, with commercial operation in April, 1987, we do not intend to commence major construction of plant structures until early 1981.
Very'truly yours, t
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' John K.
Bryan DFS/sla cc:
See Page 2 X603
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Mr. Harold R.
Denton, Director January 4, 1980 Page Two cc:
Mr. Nicholas A.
Petrick Executive Director SNUPPS P. O. Box 607 15740 Shady Grove Road Gaithersh'.rg, MD 20760 Mr. Terry Rehma A-95 Coordinator Office of Administration Division of State Planning & Analysis P. O. Box 809, State Capitol Jefferson City, MO 65101 Treva J. Hearne, Esq.
Assistant General Counsel Missouri Public Service Commission P.
O.
Box 360 Jefferson City, Missouri 65101 Honorable Paul H. Murphy Presiding Judge Callaway County Court Fulton, Missouri 65251 EIS Coordinator, Region VII U. S. Environmental Protection Agency 1735 Baltimore Avenue Kansas City, Missouri 64108 Mr. Norton Savage Economic Regulatory Administration Power Supply & Reliability Division U.
S. Department of Energy (RG-752) 3726 M Street, N.W.,
Room 850 Washington, D. C.
20036
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