ML19329D602
| ML19329D602 | |
| Person / Time | |
|---|---|
| Site: | Crystal River  |
| Issue date: | 10/28/1968 |
| From: | Hadlock G US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8003160193 | |
| Download: ML19329D602 (11) | |
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FLORIDA PCER CORPORATION
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Docket No. 50-302
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(Crystal' River l' nit 3 Nucicar
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Generating Plant)
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BRIEF OF Ti!E REGULATORY STAFF
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IN OPPOSITION TO EXCEPTIONS AND P2 QUEST FOR RELIEF BY'INTERVENORS I
Statement of the Case 3
This proceeding involves the application of Florida Power Corporation (applicant), dated August 10, 1967, and five amendments thereto ("the application") filed under $104 b. of the Atomic Energy Act of 1954, as amended (the "Act"),, for a construction pernit to construct a pressurized water reactor, designated Crystal River Unit 3 and designed to operate initially at power Icvels up to 2452 c:cgawatts.(thermal), to be located on the applicant's 4738 acre site located on the Gulf of Mexico about 70 miles north of Tampa, Florida, and seven and one-half miles north of the Town of Crystal River, Florida.
A notice of hearing was issued on May 29, 1968, designating an atomic safety and licensing board (" board") to conduct this e
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l procc.cding to 'dctermine whether a provisional construction permit should be issued to the applicant.
By Order dated June 28, 1968, the board granted a Petition to Intervene filed by the City of Gainesville, Florida, and the Cainesville Utilities Department -(collectively referred to as "Gainesville"), but limited Cainesville's participation to the question of the jurisdiction of the Commission to issue a con-struction permit under 5104 b. of the Act.
The board denied Cainesville's Motion to Broaden Issues to include the questions 3
of whether the proposed facility has " practical value" and there-fore should be licensed under $103 of the Act, and whether the provisient!.onstruction' permit should be conditioned "upon the availability of output to municipal utilities on nondiscriminatory terms and termination of any other violations of anti-trust policy".
The hearing was held in Crystal River, Florida, on July 16 and 17,1968. Ihe board issued its Initial Decision on Septerber 24, 1968, directing the issuance of a provisional construction permit for the proposed Crystal River Unit No. 3, but recommending to the Commission that the construction permit be conditioned with respect to matters not pertinent here.
(I.D., pp. 10 an'd 19.)
The regu-
. latory staff and the ' applicant have filed exceptions to this aspect of the Initial Decision. Gain!esville has filed exceptions to the S
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i Initial Decision claiming that the board crred in denying its Motica to Broaden Issues, in concluding that the proposed facility
- is a utilization facility involved in the conduct of research and
! development 'activitics leading to.the demonstration of practical value and may be licensed pursuant to 5104 b.,of the Act, in failing :to condition the construction permit and in certain other respecer,. Cainesvillq requests that the proceeding be remanded to the board to receive evidence on whether the proposed Crystal River facility has practical value within the meaning of
$102 of the Act, and whether the proposed licensd would tend to create or maintain a situatica inconsistent with the antitrust laws. In addition, they request that the board reserve juris-diction and convert the application to a project authorized under $103, pending 'a decision by the United States Court of Appeals for the District of Columbia in the Vermont Yankee and i
l Duke cases (Power Planning Co==ittee of the Municipal Electric Association of Massachusetts v. AEC; Cities of Statesville, et al.
- v. AEC).
II The Proceeding is Properly Considered Under Section 104 b. of the Act 2 Cainesv111e contends that the -application for the proposed
. facility. was improperly filed under $104 b, of the Act since.the 6
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facil'ity is allegedly a project having " practical value" under
$102 o[-the Act, and is therefore subject to licensing only under $103 of the Act. On this basis, Cainesvilic claims that the iesues set out in the notice of hearing should have been broadened and evidence received to establish this point. Gaines-ville also claims that the facility is not a research and develop-ment reactor within the meaning of $104 b. of the Act.
(Exceptions 1a, 2, 5.)
i The board's denial of Cainesville's motion to enlarge the issues to consider evidence of the " practical value" of the
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J Crystal River facility was entirely consistent with the Cor s-
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sion's Memorandum and Order in the Philadelphia Electric case 1/
in which the Commission hcid that a " finding of practical value" can only be made within the context of a rule making proceeding.
As the Commission stated:
The finding of " practical value" under Section 102 is a non-delegable function of the Commission.
Furthe r, it is ' to be made as to a " type" of utilization facility and not as to a specific proposed facility. We believe that a finding of " practical value" can properly bc rede by the Co= mission only through rule making pro-
- cdures (the course heretofore followed by the Commis-sion with respect to the consideration of this matter) 1/
Matter of Philadciphia Electric Co., Nos. 50-277 and 50-278,
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Memorandum and Order (AEC, Dec. 5,1967) [hereaf ter cited as Philadelphia Electric].
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?(footnote omitted) in which all interested persons would have an opportunity to participate.
The in-appropriateness of an adjudicatory proceeding for the above purpose was recogni:ed by the board in Duke-and finds confirmation in our Memorandum and Order of September 8,1967, responding to the jurisdictional ruling referred to us by that board.
Thus, the evidence which may be introduced in the instant proceeding should, as in the Duke case, be limited to the question of whether the appligption I
satisfies the requirements of Section 104 b.-.
Gainesville's contentions that the " practical value" of the Crystal River facility is illustrated by the applicant's assertion that the capacity of the facility is of vital importance to the reliability of its pouer system or the fact that the applicant sought an exemption under 10 CFR 50.12 from the requirencnts of 10 CFR 50.10(b) in order to perform preliminary construction work, or that the second unit (Crystal River No. 4) was withdrawn because it was not a " prudent" investment in generating capacity (Exception la) are all attempts to establish that the facility has practical value. For the reasons discussed in the previous paragraph, these contentions are not properly for consideration in this adjudicatory proceeding.
In any event, the f act that the applicant chose to rely cn a nuclcar' facility s'uch as the proposed Crystal River unit rather than a fossil fueled plant to fulfill aceded future generating 2/l Philadelphia Electric, Id. at 3-4.
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capac'ity is only an " indication of the probabilitics of success-fuloperationatanticipatedlevels".! lt is not, as Cainesville suggests, a sufficient basis for a finding of practical value. In
, its decision in the Duke case, the Commission quoted with approval the following statement in the Staff Mc=orandum accompanying the Commission's Determination Regarding Statutory Finding of Practical l
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Value for Certain Types of Light Water Nucicar Power Reactors:
. Although the willingness of utilitics and equipment companies to accept the business risks involved is an impressive indication af the probabilitics of successful operation at antis! pated icvels,'it is not alone a sufficient basis to scrnort a statutory finding of practical value by the Co= mission. (Foot-note omitted.) The manufacturers of nucicar reactors compete for the business of utilitics which are con-sidering the purchase of power plants, and are moti-vated to offer incentives such as warrantics as to 3/
Staff Memorandum accorpcnying Determination Regarding Statutory Finding of Practical Value for Certain Types of Light Water Nucient Power Reactors, Docket Nos.
RM-102-1, PRM-102-A (AEC, De c. 29,1965), 31 F.R. 221 (Jan. 7,1966). - This ' determination, filed December 29, 1965, accompanied the Commission's denial of the petition for rule making which had been filed by the National Coal Policy Conference, Inc., the National Coal Associa-tion, and the United Mir.e Workers of America.
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-certain fIcatures in order to obtain the award of a 2
centrac t. The willingness of utilitics to purchase nucicar plants and of reactor nanufacturers to warrant the plants is a reficction of the acceptcnce of what may be considered reasoncble business risks, but does not necessarily constitute a sufficient assurance that the plants will $n fact perfo n as warranted or will otherwise ncet c.xpectations._5,2 Cainesville's tssertion (Exceptions 2, 5) that the board was in error when 1: concluded that the Crystal River facility was properly licensable under $104 b. of the Act since the facility is not " involved in the conduct of research cnd develop-ment activitics locding to the demonstration of,.. practical value" is also without ecrit.
This same issuc uns' raised in Du'<c, Vermont Yankee,6/ and
. Matter of Philcdelphia Electric.7/ In Duke, the Commission stated that:
[T]hc "resecrch and develop =cnt" about which Section 104 b. specks encompasses as "developecnt" a decon-stration that will provide c basis for com arcial evaluation. Sudt."conscreial cynluation", in.tcres of earlier relevant decicrctions, tecns an evaluation of the econcmic competitiveness of the nuclear facil-ity with conventional power plcnts.
(Footnote omitted.)
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!atter of Duke Pouer Co., Docket Nos. 50-269, 50-270 and 50-287, Eccision (AEC,' Jan. 3,1963) [hcreaf ter referred to as Dukc] at 11.
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Matter of Verront Yankee Pcuor Corporation, Docket No. 50-271',
Mc orandum cnd Order (AEC, April 8, 1965) [hcreaf ter referred
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to'as.Vernon: Yanhec3
_ 7/ - Doc'ket Nos. 50-277 and 50-275, Decision (AEC, June 5,1968).
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in the context, then, of the stat atory language and our construction of it, until there has been a " demonstration of the practical value of such facilition for industrial or commercial purposes",
utilization facilitics which will provide a basis for commercial evaluation in connection thercuith licensed under Section 104 b.8,gstration") may bc (i.e., - "1cading to" such " demo In this context, uc think it manifest that large-scale-utilization facilitics, such as the Oconce reactors, by contributing to the yet incomplete basis for a reliabic cctimate of economic compet-itiveness, arc involved in the ccaduct of activitics encompassed by Section 104 h d thus, are properly
, to be licensed thereunder.9/. an,
The Commission reaffirmed these principics id its decisions in Vermont Yankee and Matter of Philadelphia Electric.
The sarc rationale applies to Gainesville's contentions here. The lack of a "descastration that will provide a basis for cot:mercial evaluation"of this size and type of facility,,
pointed out in the Commission's decision in the Duke proceeding, is also true with respect to the Crystal River facility.
Moreover, the Crystal River facility incorporates a nunber of design features which require research and development to complete its design. Most significant in this regard are research and development. programs relating-to:
(1) once-through steam
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Duke, supra note 4 at 5-6.
9/- Duke, supra note 4 at 9.
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generator; (2)' control rod drive unit test; (3) in-core neutron detectors; (4) thermal and hydraulic programs; (5) core cooling; (6) xenon oscillations; (7) iodine removal system; and (8) fuel rod failure mechanisms during LOCA.SS! Ihc forogoing, individ-ually and in co=bination, evidences an " experimental purpose concomitent with the purpose of economic demonstration."11/
Cainesville urges (Exception 3) that the rescarch and development related to the ability of the containment sprays to absorb radioactive iodine is a matter distinct from a demon-stration of practical value and is thus " neuter"'in character.
It argues that since public health and safety is also of concern in licensing under $103 of the Act, research and development pro-
_ grams designed to resolve safety questions are not encompassed
- within the provisions of $104 b. as activitics leading to a demonstration of practical value. As the Commission pointed out in its first Determination Regarding Practical Value:
The statutory finding of practical value...
[ presupposes] a determination of technical feasi-bili ty.... This (dctermination of practical value]
could include '... the demons tration of the technical feasibility of the reactor concept and of its basic characteris tics... 12/
10/ Su==ary of Applicatica, pp. 22-25 following Tr., p. 264; Staff Safety Evaluation, pp. SS-60 following Tr., p. 276.
11/ Matter of Duke Pouer Co., Docket Nos. 50-269, 50-270 and 50-287, Memorandum and Order at 5 (AEC, Feb. 29, 1968).
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- Research into " technical feasibility" may include research into thc cffectiveness of enginecred safety features designed to protect the health and safety of the public.
'Cainesville excepts (Exception 4) to the board's conclusion that core thermal and hydraulic design was one of die rescarch and development arcas as distinguished from " ordinary improvement considerations". Gainesville. argues that the Crystal River steam supply system is essentially identical in design to that of Duke Power Company's.0conce Nuclear Station, Units 1,,2 and 3, and Metropolitan Edison's Three Mile Island Station, and that the core mechanical design parameters in Crystal River reflect an While it is true that "optimination" of existing parameters.
the Crystal River f acility is similar to several of those for which construction permits have been issued and that the core mechanical design was based upon an " optimization" of cxisting parameters, it docs' not necessarily follow that no important areas remain in which research and develop =cnt is required.
The precise areas in which additional research and develop-ment are required are identified in the Applicant's Summary Description of Application.
(Applicant's Summary Description of Application, p. 24, following Tr., p. 264.)
These include research to more completely substantiate the correla.lon of
. experimental DN3 (Departure from Nuclear Boiling) data and flow
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. t testing with internal vent valves installed and with open internal vent valves.
The board's determination (I.D.11) that research and development arcas included core thermal and hydraulic design is fully supported by the evidence as pointed out above.
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Thus, it is clear that the board was correct in holding that the Crystal River facility was properly licensable under
$104 b.
This is true both because its construction and operation will contribute economic data useful in any demonstration of practical value, and because the applicant is also engaged in several research and development activitics of a technical nature.
Cainesville's contention (Execption 5) that the board erred in concluding that the applicant sustained the burden of proof as to the jurisdiction of the board to issue a license under _
5104 b. of the Act is without merit. As pointed out above, the t
record in this case, particularly the application and the appli-cant's Su==ary Description, cicarly demonstrates that the Crystal River facility is properly licensable under 5104 b.
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'The Commission Lacks Regulatory Authority to Condition A 104 b. License Eccause of Antitrus t' Considerations Cainesville contends (Exception Ib) that the Commission should condition the construction, permit to require the applicant to make availabic the output from the Crystal River plant to municipal utilities "on non-discrininatory terms and termination of any other violation of antitrust policy..'"
It appears to contend that-such conditions may be imposed whether the permit is issued As shown above, this pursuant to 5103 or to $104 b. of the Act.
proceeding cay not be considered under $103 of the Act because no finding of practical.yaluc_ pursuant to $102 has been made for this type of reactor. Therefore, whatever authority the Commission cay have to condition a construction permit on anti-trust grounds in a $103 proceeding is not availabic in this proceeding.
The question of the authority of the Commission to condition
$104 b. licenses with respect to antitrust questions was clearly In disposed of by the Commission in the Vermont Yankee case.
~1ts' Memorandum and Order", the Commission held:
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l In a proceeding for the ' issuance of a license under Section 104 b. of the Act, which the instant proceed-ing properly is (see below), the Commission's sub-stantive regulatory authority is limited, as earlier stated, to entters of radiological health and safety and common. defense and security. The Consission in.
such a procccding lacks the authority to deny or condition a pernit or license on the basis that it would tend to create or caintain a situation incon-sistent with the antitrust laws.l.3/
In Exception ib, Cainesville refers to the language in 550.54(g), which it asserts "provides that... conpliance with the antitrust laws as specified in $105 a. of the Act shall be a condition of every license issued." It argues that this language in sone way requires the Cennission to consider the alleged antitrust questicas in this proceeding. Section 50.54(g) restates in the regulations the pertinent part of 5105 a. of the Act.which reficcts merely the Congressional policy that nothing contained in the Act relieves any person from the operation of the ' antitrust statutes and provides for suspending, revoking or taking other action with respect to licenses where antitrust violations are found by a court of competent jurisdiction. These provisiens' have no applicability to the instant proceeding.
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Gainesville also argues (Exception Ib) that the Co= mission's failure to consider antitrust allegations in this proceeding is 13/ Verr.ont Yankee, supra note.6 at 19-20.
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y s t in some way ontrary to the fundamental policies of the antitrust i
laws, This point also has been previously dealt with by the Commission in the Vermont Yankee case While the Commission lacks the authority to deny or condition a Section 104 b. license on the basis that it would tend to create or naintain a situation in-consistent with the antitrust 1 sus, organizations which roccive licenses under that section are not relieved from the operation of the antitrust laws.
Section 105 a. of the Act explicitly declares that nothing contained in the Act shall relicyc any person from the operation of the various antitrust statutes specified tho'rcin. Moreover, under Section 105 b. of the Act, the Commission is required to report promptly to the Attorncy Concral any* informa-tion it may have with respect to any utilization of special nucicar material or aromic cncrgy which appears to violate or to tend toward the violation of the antitrust 1cus enumerated in Section 105 a.
or to restrict free competition in private enter-prise.
It was, perhaps, Section 105 b. which the Municipals had in mind in asking that the issues specified for hearing be enlarged so that testimony, evidence, and recommended findings respecting antitrust considera-tions "may be reported to the Attorney General for his use in the dispatch of his statutory responsi-bilitics". We would only state in response, that while the AEC cndcavors to comply fully with both the letter and spirit of Section 105 b., we cannot view its provisions as a warrant to use our licens-ing proceedings to develop cvidence on matters unrelated to the issues properly within our juris-diction solely so that we may assist the Attorney /
General in his law enforeccent responsibilities.14 1
14/ Vermont Yankee, supra note 6 at 19-20.
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IV The Board Was Not Ecquired to Conditica the Construction Permit to be Compatibic with a Section 103 License In Execption 6, Cainesville contends that the board erred in failing to provide for " regulations and terms of license as
'will.be compatible with the regulations and terms of license which would apply in the event that a comncreial license were later to be issued', as required by $104 b of the Act" and that the board should have required that an application pursuant to $103 "must be made when a finding of ' practical value' can be made with reference to the-proposed Crystal River facility",
s These questions have aircady been dealt with by the Co= mis-sion in its regulations in Part 50. In $50.41,in considering the question of compr.tibility, the Co= mission stated:
The Co==ission has de.tcrmined, in accordance with section 104b of the Atomic Energy Act of 1954, that the regulations and terns of license applicable to a production or utilization facility in the conduct of research and develop =cnt activities leading to the deconstration of practical value of such facility for industrial or co==ercial purposes are co=patible with the regulations an'd terms of license which will apply in the event that a class 103 license were later to be issued for that type of facility.15/
15/ Note following 10 CFR 550.41.
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16-With respect to the question of, the conversion of 104 licenses to 103 licenses upon a finding of, practical value pursuant to $103 of the Act, the Commission has adopted 550.24 which provides as follows:
550.24 Effect of finding of practical value upon licenses previously issued. The making of a finding of practical value pursuant to section 102 of the act will not be regarded by the Commission as grounds for requiring:
(a) The conversion to a Class 103 license of any Class 104 license prior to the date of expiration con-tained in the license; or 3
(b) The conversion to a Class 103 license of any construction permit, issued under section 104 of the act, prior to the date designated in the permit for expiration of the license. J6/
Section 50.56 also provides that operating licenses and amendments' will be of the same ' class for which the construction 31 /
permits were issued.
The Commission has stated, however, that:
...at such time as it makes a finding of ' practical value' for a type of facility, its policy as regards
' conversion' should be reexamined in the light of the circums tances which then obtain. (Foo tnote omitted.)
Accordingly, the Cocatstion intends that at such time it will consider, in a rule making proceeding with public paeticipation, whether to change its present regulations respecting " conversion" so that any operat-ing license issued thereaf ter for a facility of the type for which a statutory finding of ' practical value' has Jj/ -10,CFR 5 50.24.
12/ 10 CFR 5 50.56.
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s been rade will be issued under Section 103, even tho.gh the construction permit may have been issued under Section 104 b. (Footnote omitted)" J,8/,
8 Conclusion The Exceptions and Request for Relief filed by Cainesville.
should be denied.
Respectfully submitted, CN
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Cerald F. Hadlock Counsel AEC Regular.ory Staff Of Counsel:
Martin C. Malsch Attorney Office of the General Counsel Dated: October 28, 1968 1
I J8/ See Brief for the Respondents, pp. 38-39, Citics of States-ville, e t a l. v. AEC and U.S., D.C. Cir., 19 68, No. 21706, f
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