ML19330B616

Response in Opposition to Dakota Commissions 800711 Motion to Defer Director of Nuclear Reactor Regulation 800616 Order Proposing Revocation of Cp.Hearing Not Warranted Due to Lack of Interest.W/Fr Notice & Certificate of Svc

ML19330B616
Person / Time
Site:	05000484
Issue date:	07/29/1980
From:	Stephen Burns, Cyr K NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
References
ISSUANCES-SC, NUDOCS 8008050218
Download: ML19330B616 (15)

Text

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.g 7/29/80 UNITED STATES OF AMERICA h*

NUCLEAR REGULATORY COMMISSION JUL 3 o 500 > da' BEFORE THE COMMISSION 3

Mce of the Seeg q,

%g8 Senice

/f In the Matter of g,

4 NORTHERN STATES POWER

)

Docket No. STN 50-484 COMPANY, et al.

(Order to Show Cause)

(Tyrone Energy Park, Unit 1)

)

NRC STAFF'S ANSWER TO DAKOTA COMMISSIONS' MOTION TO DEFER COMMISSION ACTION AND REQUEST FOR HEARING The Pemittees, Northern States Power Company, et al. (NSP), hold Construction Permit No. CPPR-157 which authorizes the construction of the Unit I nuclear power reactor at the Tyrone Energy Park in Dunn County, Wisconsin.

On June 16, 1980, the Director of the Office of Nuclear Reactor Regulation (NRR) issued an Order to Show Cause why Construction Pemit No.

CPPF-157 should not be revoked. 45 Fed. Reg. 42093 (June 23, 1980) (Enclo-sure 1). On July 11, 1980, the North Dakota Public Service Commission and the South Dakota Public Utilities Commission (hereinafter Dakota Commissions) moved that the Commission defer the Director's proposed revocation of the construction permit. The Dakota Commissions also requested a hearing on the Order.1/ For the reasons stated in this filing, the motion to defer the

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The Dakota Commissions' " Motion to Defer Commission Action, Petition to

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Intervene Out of Time, and Request for Hearing" (hereinafter " Motion")

is at_tached as Enclosure 2.

The Dakota Commissions did not serve their Motion on the Commission. Because the Motion purports to be in part a request for a hearing, the Staff, as a potential party to any hearing on the Order, cannot rule on the request for a hearing. The Dakota Commis-sions' Motion is therefore appropriately before the Commission for action.

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revocation of the construction pemit should be denied.

In addition, the Commission should deny the Dakota Commissions' request for a hearing on the Director's Order.

I.

BACKGROUND TO THIS PROCEEDING Construction Pemit No. CPPR-157 was issued on December 27, 1977, and is set to expire by its own tems on October 1,1985.

The Director's Order to Show Cause describes several events preceding his issuance of the Order that bear on the cancellation of the Tyrone project.

In July 1979, the Pemittees announced their decision to cancel the Tyrone project.U The reason assigned by the Permittees for this decision was the Wisconsin Public Service Commission's denial of an application for a certificate of public convenience and necessity for the Tyrone project. The Pemittees requested that the Staff and the Atomic Safety and Licensing Appeal Board teminate further action in the Tyrone docket.

In its Order of August 30, 1979, the Appeal Board teminated pending proceedings concerning the Tyrone facility.

On August 15, 1979, the Badger Safe Energy Alliance petitioned the Director of NRR to revoke the Tyrone construction pemit.

Because the Permittees intended no longer to conduct activities under the construction pemit which would serve a useful commercial purpose within the meaning of the Atomic Energy Act, the Director of NRR issued the Order to Shcw Cause. The Pemittees have consented to the entry of a final order y

see 44 Fed. Reg. at 42,094.

For ease of reference, the Staff has attached the documents referenced in the Order as Enclosures 3-6.

revoking the construction pemit.M Except for the request filed by the Dakota Commissions, no other person has requested a hearing on the Director's Order to Show Cause.U Although the Dakota Commissions " petition for leave to intervene out of time, file comments and request a hearing, and move that the Commission defer its proposed action to revoke the Construction Pemit", the Dakota Commissions' filing is ambiguous with respect to whether they are requesting infomal consideration of their views (i.e., outside the context of fomal proceedings on the Order) or are demanding that fomal proceedings be insti-tuted on the Order to Show Cause:

"In light of the limited relief sought by the Dakota Commis-sions, there would appear to be no need to require a hearing or other fomal proceeding at this time. However, if the

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See letter from Thomas A. Baxter, Counsel for Pemittees, to Harold R.

Denton, dated July 1, 1980 (Enclosure 7). Under 10 CFR 2.202(e) a licen-see's consent to the entry of an entry of an order constitutes a waiver of the licensee's rights to a hearing and to contest the validity of the o rder. An order issued with the licensee's consent has the same force and effect as an order issued after a hearing by the presiding officer or the Commission. The Commission's policy is to encourage licensees to consent to rather than to contest, orders and other enforcement actions.

Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), CL1-80-10,11 NRC 438, 441 (1980).

y Counsel for the Badger Safe Energy Alliance has acknowledged receipt of the Order to Show Cause, but has not requested a hearing on the Order.

Letter from Richard Ihrig to Harold R. Denton, dated July 7,1980 (Enclosure 8). Mr. Ihrig was infomed by letter of June 16, 1980 (Enclosure 9) that the Alliance's. petition to revoke the construction permft had been granted by virtue of the Director's issuance of the Order to Show Cause.

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_4 Commission determines that a hearing is required to act on the Motion set forth herein, Dakota Commissions request such hearing."y l

In either event, for the substantive reasons which follow, the Commis-sion should decline to grant the relief sought, by denying the request for a hearing on the Order and declining to order the Director of NRR to defer revocation of the Tyrone construction permit.

II. THE DAK0TA COMMISSIONS DO NOT HAVE A RIGHT TO A HEARING ON THE ORDER TO SHOW CAUSE Because the Dakota Commissions do not have an interest affected by the Order to Show Cause within the " zone of interests" protected by the Atomic Energy Act, the Dakota Commissions are not entitled by law to a hearing on the Order.

In determining whether a person has a legal right to demand a hearing in connection with a proceeding or whether a person may intervene as y

See Motion at 5.

Another ambiguity is found in the Dakota Commissions' request for " petition for leave to intervene out of time", since the Dakota Commissions' filing was served within the twenty-five day period within which persons could request a hearing on the Order to Show Cause. This portion of the request may refer to the fact that neither Commission participated in the proceedings on issuance of the construction permit.

Of course, issuance of the Order to Show Cause by the Director of NRR instituted a new proceeding and does not constitute a continuation of prior proceedings on issuance of the Tyrone construction pennit.

Fail-ure to participate in the prior proceedings concerning the same facility does not itself bar a person, assuming he is otherwise adversely affected by the new proceeding, from demanding a hearing or intervening in a hearing in a new proceeding.

Indeed, persons who intervened in prior proceedings on a facility license must establish anew that they have an interest adversely affected by the new proceeding in order to intervene in a hearing.

It is, therefore, unnecessary to consider the Dakota Commissions filing as a petition for late intervention, because the filing was timely under the Order to Show Cause and the Dakota Coninis-sions must establish any right to a hearing under the Order, not under the original construction permit proceeding.

a matter of right in a hearing, this Commission applies judicial concepts of standing.

Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), CLI-80-10,11 NRC 438, 439 (1980). To establish one's " standing", a person must satisfy a two-fold test:

"First, one must allege some injury that has occurred or probably will result from the action involved. Under this injury in fact test a mere academic interest in a matter, without any real impact on the person asserting it, will not confer standing. One must, in addition, allege an interest

' arguably within the zone of interest' protected by the statute." Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610, 613 (1976).

To meet the " injury in fact" portion of the test, a person must show that "a cognizable interest of the petitioner might be adversely affected if the proceeding has one outcome rather than another." Nuclear Engineering Co.

(Sheffield Low Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743(1978). The Dakota Commissions, asserting their responsibility to protect the interests of ratepayers within their respective jurisdiction, argue that customers of Northern States Power (NSP) in North and South Dakota may be injured economically by revocation of the construction permit, because these customers may have to pay higher rates to NSP which reflect costs attributable to cancellation of the Tyrone project.E The Dakota Commissions argue, in 6/

Motion at 2.

The Dakota Commissions allege that NSP has filed retail rate increases before both Dakota Commissions and that these proposed increases reflect costs attributable to cancellation of the Tyrone project. The Dakota Commissions also allege that they are participants in a proceeding before the Federal Energy Regulatory Commission in which NSP seeks accounting authorization to charge cancellation costs in wholesale rates that would eventually be reflected in retail rates to NSP customers in the Dakotas.

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effect, that the proposed revocation adversely affects them since the revoca-tion may indirectly lead to decisions by other state and federal regulatory bodies that may pennit NSP to charge Dakota ratepayers a higher rate.

Aside fram an increase in rates attributable to Tyrone's cancellation, the Dakota Commissions assert that the cancellation of the Tyrone project may have detrimental effect on the interstate market for electric power and on future planning to achieve an econanic and reliable power supply for the area including North and South Dakota. Motion at 6-7.

The Dakota Comissions do not show, however, that the interstate market for electric power is likely to be negatively affected such that consumers of electric power will be hanned by Tyrone's cancellation. The Dakota Commissions assert essentially a generalized interest in adequate energy planning for their region. A general interest in a problem, without a concrete demonstration of harm, is insufficient to confer standing. Nuclear Engineering Co., supra, 7 NRC at 741-43.

Even if one assumes that the Dakota Commissions (and the ratepayers whose interests the Cminissions assert) are injured in fact by the Order to Show Cause, the Dakota Commissions are not entitled as a matter of right to a hearing on the Order. The interests asserted by the Dakota Commissions are essentially econanic interests, and such interests - at least outside the antitrust sphere - do not fall within the " zone of interests" protected by the Atomic Energy Act.E As recently as this past February, the Appeal

))

Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2),

CLI-76-27, 4 NRC 610 (1976). The Commission held that section 103b. of the Atanic Energy Act, which provides for issuance of licenses for nuclear facilities which will serve a "useful" purpose, did not provide a basis for establishing a ratepayer's interest as an interest protected by the Atomic Energy Act. Jd,. a t 614 n.5.

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Board reaffimed that interests " purely economic in character" do not confer standing under the Atomic Energy Act. Houston Power & Light Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582,11 NRC 239, 242 (1980).E The ratepayers' interests asserted by the Dakota Commissions are quintessen-tially economic in character. Tennessee Valley Authority (Watts Bar Nuclear Power Plant, Unit 1 & 2), ALAB-413, 5 NRC 1418,1421 (1977).

Although the Dakota Commissions are not legally entitled to a hearing on the Order to Show Cause, the Commission could order a hearing, as a matter of discretion, on the proposed revocation of the Tyrone construction permit.E The Dakota Commissions themselves do not believe, however, that a hearing is necessary to act on their requests. Motion at 5.

Because the Dakota Commissions do not believe a formal hearing is necessary to act on their requests, as well as for the reason that the subject of any hearing l

would be beyond the coverage of the Atomic Energy Act, the Commission should not order a hearing as a matter of discretion on the revocation of the j

i Tyrone construction permits.

Bf See also Portland General Electric Co., supra, 4 NRC at 614. Moreover, threatened economic ham is not sufficient to invoke the National Environmental Policy Act unless that ham "will or may be occasioned by the impact that the Federal Action under consideration would or might have upon the environnent".

Tennessee Valley Authority (Watts Bar Nuclear l

Plant, Units 1 & 2), ALAB-413, 5 NRC 1418,1420-21 (1977). The Order to i

Show Cause was issued, of course, on the basis of considerations related to the Atomic Energy Act, not NEPA.

In any event, issuance of an Order to Show Cause is not subject to NEPA requirements concerning preparation of impact statements and environmental appraisals.

10CFR51.5(d)(1).

E. 40 CFR 1508.18(a), in which the bringing of enforcement actions is excluded from the definition of " major federal action".

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Cf. Rublic Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), CL1-80-lO, 11 NRc 438, 442 (1980).

- III.

REVOCATION OF THE TYRONE CONSTRUCTION PERMIT SHOULD NOT BE DEFERRED The Dakota Comissions ask the Commission to defer the Director of NRR's proposed revocation for 12 months pending conclusion of various state and federal proceedings concerning in part pass-through of cancellation costs attributable to the Tyrone project. The Dakota Commissions hold out the possibility that Northern States Power will refile its application for a certificate of need before the Wisconsin Public Service Commission, appar-ently the only remaining regulatory approval needed prior to construction of the Tyrone project. Motion at 3-4.

The Dakota Commissions are concerned that revocation of the construction pemit at this time may preclude the potentially "most economic and beneficial course of action for the rate-payers", i.e., the refiling of the application for a certificate of need.

Motion at 5.

In view of the Pemittees' answer (dated July 22,1980) to the Dakota Commissions' motion, it seems unlikely that the Tyrone project will ever be built. The Pemittees state that they have no intention to construct the Tyrone Energy Park under the NRC construction pemit. Moreover, the Permit-tees state that they have taken steps to terminate contracts associated with the Tyrone project and that they are seeking authorization from the Wisconsin Public Service Commission to construct coal-fired plants to meet additional energy requirements which were to have been provided by the Tyrone unit.

Answer at 3.

No factual basis apparently exists, therefore, for the Dakota Commissions' premise for deferring revocation, i.e., the potential refiling of the Tyrone certificate of need before the Wisconsin Public Service Commission.

More importantly, deferral of proposed revocation would be inappropriate on the grounds offered by the Dakota Commissions.

The Dakota Commissions ask the NRC to consider the economic interests of Dakota ratepayers in determining whether to revoke the Tyrone construction permit. The NRC should decline this invitation to inquire into the impact on rates and on regional energy planning that the Tyrone project's cancellation may have.

The Dakota Commissions' request is based in part on their erroneous impres-sion that the NRC has an " interest in promotion and development of atomic energy nationwide". Motion at 6.

The NRC has, of course, no such interest in promoting and developing the use of nuclear energy. The NRC's responsi-bilities are to assure that nuclear power, if used at all, is used with appropriate protection of public health and safety, of the common defense and security, and of the environt.ent.

The Atomic Energy Act specifically preserves the ratemaking jurisdiction of other federal and state agencies.

Section 271, 42 U.S.C. 2018.

For the Commission to inquire here into the impact of the permit's revocation on electric rates or on the economic desirability of the plant's construction would be beyond the NRC's authority.

The NRC cannot force a utility to build a nuclear plant, whether or not the utility has a NRC construction pennit.

In the face of the Permittees' unequivocal intention not to construct the facility, it is appropriate to revoke the construction pennit. The Order to Show Cause explained:

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"Section 103 of the Atomic Energy Act of 1954, as amended

-(hereinafter the Act) authorizes the Commission to issue licenses to persons who will use utilization facilities for

_ industrial or commercial purposes ar.d whose proposed activities l

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will serve a useful purpose proportionate to the quantities of special nuclear material or source material to be utilized.

[42 U.S. 2133(a) & (b)] The permit issued to Northern States Power Company, eti aj, pursuant to Section 103, was for the purpose of constructing a utilization facility. Section 186 of the Act provides that "any license may be revoked * *

• because of conditions * *

• which would warrant the Commission to refuse to grant a license on an original application * * *".

Construction of the Tyrone facility has now been cancelled.

The holders of the permit issued to authorize its construction no longer propose to conduct activities which will serve a useful commercial purpose within the meaning of the Atomic Energy Act."

45 Fed. Reg. at 42094 Revocation of the pennit in this case is also consistent with the Appeal Board's recent decision in Rochester Gas & Electric Corp. (Sterling Power Project, Nuclear Unit No.1), ALAB-596, June 17,1980.10/ In the Sterlino case, the applicants asked the Appeal Board to terminate further proceedings on review of the initial decision that authorized initial issuance of the construction permit.

In addition to terminating the pro-ceedings, and thereby removing the authority underlying the issuance of the construction permit, the Appeal Board instructed the Director of NRR to revoke the pennit. The Appeal Board commented that the applicants " scarcely have any further need for the permit in light of their abandonment of the Sterling project." Decision at 4.

In view of the Tyrone Permittees' abandon-ment of the Tyrone project, the construction permit serves no useful purpose and should be revoked.

l 10/ The Commission has extended the period within which it may review this decit. ion until August 1, 1980.

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Finally, it should be noted that revocation of the construction pemit does not prejudice the right of the Permittees to re-apply for an NRC con-struction pemit in the future.

If circumstances change such that the Permittees desire to build a nuclear facility, they may re-apply for a pe mi t.E IV. CONCLUSION For the foregoing reasons, the Commission should deny the Dakota Commissions' request for a hearing and their motion to defer revocation of the Tyrone construction pe mi t.

If the Commission denies the request and the motion, the Director of NRR will revoke the Tyrone construction permit unless otherwise directed by the Commission.

Respeetfully submitted, Stephen G. Burns Counsel for NRC Staff WwD.A Kardn D. Cyr

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Counsel for NRC Staff Dated at Bethesda, Maryland this 29th day of July,1980.

Enclosures:

listed separately on next page j

g See Rocky Mountain Power Co. v. FPC, 409 F.2d.1122,1129 (D.C. Cir.

T9T9); 2. Houston Lignting & Power Co. (South Texas Project, Units 1

& 2), CLI-77-13, 5 NRC 1303, 1321-22 (1977).

Enclosures:

1.

Order to Show Cause (June 16,-1980),45 Fed. Reg. 42093.

2.

Dakota Commissions' " Motion to Defer Commission Action, Petition to Intervene Out of Time, and Request for Hearing" (July 11,1980).

3.

Letter to Harold R. Denton from Arthur V. Dienhart, Vice Pres. of NSP (July 26,1979).

4.

Letter to Richard S. Salzman, ASLAB, and Ivan W. Smith, ASLB, from Thomas A. Baxter, Counsel for Permittees (July 25,1979).

5.

Request by Badger Safe Energy Alliance, Inc., for Revocation of Ccnstruction Permit (Aug. 15, 1979).

6.

ASLABOrder(Aug. 30,1979).

7.

Letter to Harold R. Denton from Thomas A. Baxter (July 1,1980).

8.

Letter to Harold R. Denton from RicFard Ihrig, Counsel to Badger Safe Energy Alliance (July 7,1980).

9.

Letter to Richard Ihrig from Harold R. Denton (June 16, 1980).

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r. m.outus e e - -

Federal Register / Va

5. No.122 / Mondry. June 23. 1980 / Notices 42093 IAEA Secretariat in obt in comments (Docket No. 50-3201 Edison Company's. ct. of. (licensee) from the Member States.De Senior pro 9osal tn decontaminate the reactor Advisory Group then considers the NegaHvo DeclaraHon and Notice of building atmosphere and attematives

. M;raber State comments. again modities AvaHamy of Enwonmental thereto, at the Three Mile Island Nuclear Assesament of Radiological Effluents Station located in Iondondeny the draft as necessary to reach agreemnt From Data Gathering and Maintenance Township. Dauphin County.

and forwards it to the IAEA Director Operauon at Three We Island Nuclear Pennsylvania. The U.S. Nuclear General with a recommendation that it Station, Unit 2 be accepted.

Regulatory Commission has determined Pursuant to the National that this decontamination needs to be

• '.'p*,,I d' ',P[Qp,*b8 f y Guide Environmental Policy Act and the U.S.

performed and that it can be performed p

Arthorities for Emergencies at Nuclear Nuclear Regulatory Commission's with no sigm!! cant environmental regulations in to CFR Part 51, notice is impact by purging the Unit 2 reactor Power Plants and Safety Guide SG-06, hereby given that an NRC staff report building atmosphere to the environment.

Preparedness of the Operating entitled-Environmental Assessment of The Office of Nuclear Reactor Organization (Ucensee) for Emergencies Radiological Effluents from Data Regulation prepared a final ct Nuclear Power Plants" have been.

Gathering and Maintenance Operat' ions Environmental Assessment (NUREG-d;veloped. A Working Croup, consistmg at Three Mile Island Unit 2"(NUREC-0662. May 1980) in connection with this of Mr.].H. Aitken of Canada.Mr.H. C.

0681) prepared by the Commission's action. It was determined that this Orchard of the United Kindom, and Mr.

Office of Nuclear Reactor Regulation action will not result in any significant W. leschki of Switzerland. developed related to the radiological effluent health effects or other significant th2 initial draft of Safety Guide SG-C8 critena for the intenm period prior to environmentalimpacts.Thus. in from an IAEA collation during a meeting issuance of the programmatic accordance with the National cn January 31-February 10.1978; and a environmentalimpact statement is Environmental Policy Act and based on W4rking Group. consisting of Mr. R.

available.The staff has concluded that this finding. no EnvironmentalImpact Bodege of the Federal Republic of the application of the criteria will permit Statement will be prepared.

Germany. Mr. M. R. Rao of India. Mr. S.

the staff to authonze activities that have The final Environmental Assessment Ekholm of Sweden, and Mr. E. A.Belvin no significant adverse impact on pubhc (NUREC-0662. May 19801is available (T:nnessee Valley Authonty) of the health and safety and no significant for public inspection at the United States of Amenca, developed the environmentalimpact and has Commission's Public Document Room.

Initial draft of Safety Guide SG-06 from concluded that a separate 1717 H Street. N.W Washington, D.C.

cn IAEA collation dunng a meeting on Environmental Impact Statement on this and at the Three Mile Island Unit No. 2 January 30-February 10.1978.The action is not warranted.

tocal Public Document Rooms in the Wcrking Group drafts of these Safety The Assessment is available for Government Publications Section. State Guides were modified by the IAEA publicinspection at the Commission's 1.ibrary of Pennsylvania. Education Technical Review Committees on Public Document Room 1717 H Street.

Building Commonwealth and % ainut Governmental Organization and N.W Washington. D.C. 20535 and at the Streets. Harnsburg. Pennsylvania 17128 Operation at regularly scheduled local Public Document Rooms at the and at the York College of Pennsylvania, m:etings duling 1978 and 1979. The Government Publications Section. State Country Club Road. York. Pennsylvaru,a Sernor Advisory Creup subsequent!y Library of Pennsylvama. Education 17405.

reviewed and further modified these Buildmg. Commonwealth and Walnut Single copies of the assessment are Guides at a meeting on December 10-14.

Streets. Harrisburg. Pennsylvania 17128.

available to the extent of supply from 1979. and we are soliciting public and at the York College of Pennsylvania. Director. Division of Technical Country Club Road. York. Pennsylvania Information and Document Control. U.S.

comments on these modified drafts (SC-Nuclear Regulatory Commission.

17405 Co. Rev. 6. january 11.1980, and SG-06.

Single copies of the assessment are Washington, D.C. 20555.

R;v.10. December 12.1979). Comments available to the extent of supply from Dated at Bethesda. Md this 13th day of on these drafts received by July 16,1980.

Director. Division of Technical June 1960.

will be useful to the U.S. representatives Information and Document Control. U.S.

For the Nuclear Regalatory Commission.

13 the Technical Review Committees Nuclear Regulatory Commission.

semani ). Snyder.

cnd Senior Advisory Group in Washington. D.C. 2c555.

progmm Director. Three Mile /slandProgram cvaluating its adequacy prior to the next Dated at Bethesda. Md, this 18th of June Office. OMce o/ Nuclear Reactur Regulatiott IAEA discussion. Single copies of thesc 19a1 p %as-s rw e.mu W es to the re or hce For the Nuclear Regulatory Commission. d"8 C008 7""

8*'**'d I* 88Y

d St ndards Development. U.S. Nuclear Pmgmm Dineror.'Thee Mile Islandprogmm I IDocket No. STN 50-4841 RIgulatory Commission. Washington.

D.C.20555*

Wice. Offace ofNuclear Reactor Regulation.

gra on so.t.e-rw 3

.u..g Northern States Power Co et al.

15 U.S C.s:: tall sm.a coac rse aw (Tyrone Energy Park, Unit 1); Order.To j

Dated at Rockville. M1, this 13th day of Show Cause

( eTDocket No. 50-3201 I

For the Nuclear Regulatory Commission.

S sP W

Ray C. 5anith.

Negative Declaration Regarding of. la the holder of Construction Pennit Acting Director. 0$ce o/ Standard, Purging of Three MJe Island Nuclear No. CPPR-157 which authonzes the Dere/cpment.

Station. Unit No. 2; Reactor Building construction of nuclear power reactor tru on so.iss s ru.4e me a a q Atmosphere Unit 1 at the Tyrone Energy Park in suma caos reseaus The U.S. Nuclear Regulatory Dunn County. Wisconsin. Construction Commission has reviewed Metropolitan Permit No. CPPR-157 was issued on l

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k 42094 rederal Register / Vol. 45. N:.122 / Monday. Jr.ie 23,1980 / N: tic.s

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December 27.1977, and is due to expire conduct activities which will serve a lesued Amendment No. 45 to Facility

-on October 1.1985.

useful commercial purpose within the Operating Ucense No. DPR-51. Issued to meaning of the Atomic Energy Act.

Arkansas Power & l.tsht Company (the U

licensee), which revised the Technical IU On July 24.1979. Northern States Specifications for operation of Arkansas Power Co. et al. announced that the co.

Foe the reasons set forth in Section !!

Nuclear One. Unit No.1 (the facility) owners of the proposed facility had above. and pursuant to the Atomic located in Pope County. Arkansas.The voted to cancel the project. By letter Energy Act of 1954. as amended. and the amendment la effective as of the data of dated July 26.1979. Arthur V. Dienhart.

Commission's regulations in 10 CFR issuance.

Vice President of Northern States Power Parts 2 and 50. It is hereby ordered that:

The amendment modifies the Company informed the Nuclear Northern States Power Company, et al.

Technical Specifications dealing with Regulatory Commission (hereinafter show cause. in the manner bereinafter the surveillance requirementa for

" Commission') of the decision to cancel provided, why construction permit No.

hydraulic enubbers.

the project. Mr. Dienhart stated that the CPPR-157 should not be revoked-The application for the amendment co-owners concluded that the The Ucensee may, within twenty-five complies with the standards and "c nsequences flowing from the denial (25) days of the date of this Order, file a requirements of the Atomic Energy Act of the project on March 6,1979 by the written answer to this Order under oath of 1954, as amended (the Act). and the Wisconsin Public Service Commission or affirmation. The Ucensee may Commission's rules and regulations.The would prevent the project from being consent to the entry of an Orderin Comm!ssion has made appropriate pl ced in service on a schedule required substantially the form proposed in the findmgs as required by the Act and the by projected needs for power". He Order to Show Cause. If the Ucensee Commission's rules and regulations in to requested the Office of Nuclear Reactor fails to file an answer within the time CFR Chapter i. which are set forth in the Regulation to termmate further action in specified. the Director of Nuclear license amendment. Prior public notice this docket. By letter dated July 25,1979.

Reactor Regulation will, without further of this amendment was not required Thoma? A. caxter. Esq., Couani for the notice. issue an Order to revoke the a nee the amendment does not involve a Permittees., requested the Atomic Safety Construction Permit No. CPPR-157. The significant hazards consideration.

and ucensma AppealBoard to Ucensee or any person whose interest Thir Commission has determined that terminate the further proceedings wh!ch may be affected by this Order may the issuance of this amendment will not it had ordered in this docket.'The request a hearing within twenty.five (25) result in any significant environmental Commission has no information to days of the date of the Order. setting impact and that pursuant to lo CFR indic.ste that the Ucensees have any forth with particularity the interest of 51.5(d)[4) an environmentalimpact intent to renew construction at this the person in the proceeding and how statement or negative declaration and f;cility m the future.

that interest may be affected by the environtcental impact appraisal need By petition dated August 15.1979, the results of the proceedmg. Any request n i be pupand in connection with B:daer Safe Energy Alhance requested for a heanng shall be addressed to the issuance ithis amendment.

the Director of Nuclear Reactor Director. Office of Nuclear Reactor For further details with respect to this Rigulation to institutc a proceeding Regulation. U.S. Nuclear Resulatory action. see (1) the licensee s application pursuant to 10 CFR I 2.202 to revoke the Commission. Washmgton. D.C. 20555, f r amendment dated October 22.1979.

cbove-described construction permit with a copy to the Executive Legal (2) Amendment No. 45 to Ucense No.

because of the Ucensees' announced

~ Director st*the above address. lf a DpR-51, and (3) the Commission s decision to cancel the project.

heanng is requested by a persan who related Safety Evaluation. All of these Section 103 of the Atomic Energy Act has an interest affected by this Order, of 1954, as amended (hereinafter the the Commission willissue an order items are available, for public inspection at the Comminion s Mc Dxument Act) authorizes the Commission to issue designating the time and place.of Rum.1717 H Stnet. NW. WasWon.

lic:nses to persons who will use beanng.

D.C. and at the Arkansas Polytechnic attilization facilities for industrial or In the event a hearing is requested.

commercial purposes and whose the issue to be considered at such College. Russellville. Arkansas,. A copy of item (2) and (3) may be obtained upon preposed activities will serve a useful hearing shall be:

request addressed to the U.S. Nuclear purpose proportionate to the quantities

'hether. on the basis of the Ucensee.s Regulatory Commission. Washington.

cf special nuclear material or source matenal to be utilized 'The permit kro e yP Un i 1 b y.

D C. 20355. Attentiom Director. Division s

of Ucensing.

lasued to Northern States Power order should be sustamed.

Ccmpany. et ol. pursuant to Section Dated at Bethesda. Md this teth day of Deted at Bethesda. Md this 12th day of 103, was for the purpose of constructing lune 19aa June 198o.

o utilization facshty. Section 186 of the For the Nuclear Regulatory Conunissue.

For the Nuclear Regulatory Commission.

Act provides that "any license may be Harold R. Daetoa.

Robert W. Reid.

poked * *

• because of conditions Dactor. @e ofNuclearRooctor Chief. Opemtmg Reactcts Bmnch.% L which would warrant the argulation.

Dmsson ofbcenswg Coqumasion 10 refuse to grant a license De6h rmw w e4 tra w rw yrone f cklity has Y Cont cson te g,,

now been cancelled.The holders of t permit issued to authorize ita 1 Docket No. 50-3131 IDocket Nos. 50 ^.!5 and 50-324) c a*tnictma"lonarf_PmPose t Arkansas Power & Ught Co.; issuance Carolina Power & Ught Co.; issuance

's, order deed A.e.as sa ts s & A.,,emi of Amenernent to Fac:lity Operating of Amendments to Facility Operating so.ed e.rm.w.n proued.na, =olwa m Ucense Ucenses i

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The U.S. Nuclear Regulatory The U.S. Nuclear Regulatory

'*:au a asaw a n C-woo (the Commissaco) has Commission (the Commission) has l

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f UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION _

In the Matter of NORTHERN STATES POWER COMPANY, et al.

h Docket No. STN 50-484 (TyroneEnergyPark, Unit 1)

J (OrdertoShowCause)

CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF'S ANSWER TO DAKOTA COPHISSIONS' MOTION TO DEFER COMMISSION ACTION AND REQUEST FOR HEARING in the above-captioned pro-ceeding, have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system this 29th day of July,1980.

Thomas A. Baxter, Esq.

Atomic Safety & Licensing Board Panel

• Counsel for Pemittees U. S. Nuclear Regulatory Comission Shaw, Pittman, Potts & Trowbridge Washington, D. C. 20555 1800 M Street, N. W.

Washington, D. C. 20036 Atomic Safety & Licensing Appeal Panel

• U. S. Nuclear Regulatory Comission Mr. Arthur V. Dienhart, V. Pres.

Washington, D. C. 20555 Northern States Power Company Eau Claire, Wisconsin 54701 Docketing and SerYice Section*

U. S. Nuclear Regulatory Comission Richard Ihrig, Esq.

Washington, D. C. 20555 Counsel for Badger Safe Energy Alliance, Inc.

361s Chase Street Burlington, Yemont 05401 Frances E. Francis, Esq.

John Michael Adragna, Esq.

Spiegel & McDiamid 2600 Virginia Ave., N. W.

/

Washington, D. C. 20037 NW b. b Karen'). Cyr g

Ray H. Walton, Esq.

Counsel for NRC Staff Comerce Counsel North Dakota Public Service Com.

Capitol Building Bismarck, North Dakota 58505 Walter Washington, Esq.

Assistant Attorney General South Dakota Public Utilities Com.

Capitol Building Pierre, South, Dakota 57501 9

t UNITED STATES OF AMERICA BEFORE 'IEE NUCLEAR REGULATORY COMMISSION e

~.: iG Northern States Power Co., et al.

)

Docket No.

(Tyrone Energy Park, Unit T) ~

)

STN-50-41( J..-

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MOTION TO DEFER COMMISSION ACTION,

~~ ~~~~

PETITION"TO INTERVENE OUT OF TIME, AND REQUEST FOR HEARING Pursuant to the Commission's Rules of Practice and Procedure and the Commission's Notice dated June 16, 1980 in the above-captioned docket, the North Dakota Public Service Commission and the South Dakota Public Utilities Commission

(" Dakota Commissions"), through their attorneys, hereby peti-i l

tion for leave to intervene out of time, file comments and request a hearing, as set forth herein, and move that the Commission defer its proposed action to revoke the Construction Permit issued to the Northern States Power Companies ("NSP") for Unit.1 of the Tyrone Energy Park Project.

I.

The names and addresses of the individuals to whom all correspondence should be addressed and communications should be made are:

Ray H. Walton, Esq.

Frances E.

Francis, Esq.

Commerce Counsel John Michael Adragna, Esq.

North Dakota Public Spiegel & McDiarmid Service Commission 2600 Virginia Avenue, N.W.

Capitol Building Washington, D.C.

20037 Bismarckr North Dakota 58505_,. _

s; Walter Washington, Esq.

Assistant Attorney General j

DUPLICATE DOCUMENT South Dakota Public j

Utilities Commission Capitol Building j

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. July 26, 1979 NLNRC - 88 Mr H R Denton, Director Office of Nuclear Reactor Regulation U S Nuclear Regulatory Cocnission Washington, D C 20555 c

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Subject:

TYRONE ENERGY PARK E-7470 Docket No. STN 50-484 Dear Mr Denton On July 24, 1979, Northern States Power Company announced a decision by the co-owners of Tyrone Energy Park to cancel the project.

The co-owners concluded that the consequences flowing from the denial of the project on March 6,1979 by the Wisconsin Public Service Commission would prevent the project from being placed in service on a schedule required by proiected needs for pcwer. A copy of a news release explaining the cancellation is attached.

In light of the decision to cancel the Tyrone Energy Park project, it is requested that the Office of Nuclear Reactor Regulation terminate further action in this docket.

Yours very truly M

AVD/BAJ 2

cc J E Arthur G Charnoff J P Madgett J G Keppler X S Austin G L Koester D T McPhee J K Bryan T V Lennick N A Petrick on this 26th day of July,1979, before me a notary public in and for said County, personally appeared Arthur V Dienhart, Vice President, and being first duly sworn acknowledged that he is authorized to execute this document on behalf of Northern States Power Company, a Wisconsin corporation, that he knows the contents thereof, and that to the best of his knowledge, information, and belief, the statements made in it are true and that it is not interposed for delay.

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Robert E Hessian i Ph "ROSERT E. HESSIAN 3

j! Y 1 Notary Public, Hennepin County, Minnesota j^(^%p> u coj$@'e g;y,ou e

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My Comission Expires May 15, 1983

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NUCLEAR REGULATORY CONilSSION

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Befere the Comission

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In the Matter of Docket No. STN 50-484 Northern State's Power Company Tyrone Energy Park Certificate of Service I hereby certify that copies of the documents listed below in the above-captioned matter were served upon the following by deposit postpaid in the United States mail this 26th day of July, 1979, Michael J Cain, Esquire

'Jocelyn Furtwangler Olson, Esquire Bureau of Legal Services Special Assistant Attorney General Department of Natural Resources Minnesota Pollution Control Agency 1935 W County Road 52 Box 7921 Madison, Wisconsin 53707 Roseville, Minnesota 55113 Steven M Schur, Esquire Mr Thomas A Galazen,

Chief Counsel Route 2, Box 64 Public Service Cc=ission of Wisconsin Turtle Lake, Wisconsin 54889 Hill Farms State Office Building 4802 Sheboygan Avenue Mr Stanley Cider Madison, Wisconsin 53702 c/o Durand Postmaster Tyrone, Wisconsin 54736 Peter A Peshek, Esquire State Public Intervenor Mr Richard Ihrig 114 East, State Capitol 400 Exchange Building Madison, Wisconsin 53702 Fourth and Center Winona, Minnesota 55987 Stephen H Lewis, Esquire Office of the Executive Legal Director Docketing and Service Section U S Nuclear Regulatory Comission Office of the Secretary Washington, D C 20555 U S Huclear Regulatory Comission Washington, D C 20555 Documents 1)

A letter, NLt:RC - 88 and atta:hments thereto, dated July 26, 1979, from Arthur V Dienhart to H R Denton of the Nuclear Regulatory Comission.

Copies of this letter are maintained in the local public document room at the Pierce Library, University of Wisconsin - Stout, Menemonie, Wisconsin, pursuant to 10 CFR 50.30 (3) (2).

Subscribed and sworn to before me Arthur V Diennart this 26th day.cf July,1979.

Vice President 8 bww Tyrone Energy Park Project

_[n Rooert E Hessian

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Notary Public, Hennepin County Minnesota ty=-% mag g yu h

ROBERT E. HESSIAN

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t Ceth Allen

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Communications Representative 612/330-7679 7-24 79 FOR IMMEDIATE RELEASE i

TYRONE ENERGY PARK CANCELLED Co-owners of the proposed Tyrone Energy Park today can-celled the 1,100-megawatt nuclear power plant planned fo,r western Wisconsin.

"We believe that it will not be possible to license and build the project in time to meet the needs of our customers,"

said Don McCarthy, Northern States Power Co.-Minnesota board chairman and president.

McCarthy made his comments at a news conference today, after the project's co-owners voted to cancel the unit.

Co-owners of the project and their participation are: NSP-Wisconsin Co.

.of Eau Claire, Wisc., 67.6 percent; Cooperative Power Asso-t ciation of Edina, Minn., 17.4 percent; Dairyland, Power Cooperative of La Crosse,.Wisc., 13 percent; and Lake Superior District Power Co. of Ashland, Wisc., two perecnt.

"The co-owners believe that Tyrone cannot be licensed in the 1980s and that other options must be pursued to insure an ade-(

quate suppIy of electricity," McCarthy said.

He added that NSP-Wisconsin has proposed a 650-megawatt coal-fired plant to be lo-l l

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It is scheduled to be in service in 19,87.

Dairyland Power Cooperative also is' planning a 650-megawatt coal-fired unit in Wisconsin.

Both proja. is are subject to regu-latory approvals. -

The mein reason for the Tyrone cancellation is the March 6 denial of the project by the Public Service Commission of Wiscon-sin.

A month later, the co-owners filed an appeal'of that order in Eau Claire County Circuit Court.

"However, even with a suc-cessful court appeal, the co-owners believe a 1986 in-service date could not be met," McCarthy said.

The Merch accident at the Three Mile Island nuclear plant in Pennsylvania was considered by the co-owners in making the decision.

" Generally, the accident has increased the uncertainties about the future of nuclear power," McCarthy said.

"These uncertainties make it less likely that the Tyrone project could be licensed in a timely fashion."

McCarthy emphasized that the company is still committed to nuclear power'and that "Tyrone represents the most economical and best method of meeting the needs of our customers.' There is no question in our minds that nuclear power plants are safe, depend-able and economical.

However, if nuclear plants cannot be licensed in a timely fashion, another option must be pursued," he added.

The project's.co-owners sharc a total financial commitment estimated a,t $105 million for the project.

NSP's estimated $80 nillion portion. includes about $40 million spent to date on the project and en additional $40 million commitment for contracted cquipment.

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v As the Tyronc ccncellttion occurred in 1979, McCarthy coid

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it is appropriate thzt a write-off of the loss begin in 1979.

A five-year amortization plan is anticipated.

McCarthy said the company will include Tyronc costs in future rate filings..

"However, we do not' contemplate any increases in the rates paid by our Minnesota or Wisconsin customers,in 1979, despite the Tyrone write-off," McCarthy said.

He explained th.at rate cases are not determined by one item of expenso but upon the accumula-tion of all costs.

That accumulation currently is not sufficiert to warrent a rate increase.

NSP's last Minnesota electric rate increase went into effect in June 1977 "NSP is a highly regulated company in which the financial benefits of successful operation are passed on to customers in their electric rates.-

Consequently, it is appropriate to pass s

,' on Tyrone losses since they were incurred in good faith through prudent activities," McCarthy said.

"Overall, the write-off would amount to about $3.80 annually for the typical Minnesota residential customer over the five-year period.

Of course, the ultimate effect on custome,r bills will be determined by the appropriate regulatory authorities.

y "In any event, we still don't expect NSP's electric rates to

' increase, on average, any more than the general inflation rate over the next five years, " McCarthy said.

The Tyrone project began in 1973 when NSP announced plans to construct a nuclear power plant at the Durand, Wisc., site.

The federal Nuclear Regulatory Commission issued a construction permit for the project in December 1977.

However, the state permit for the project was denied last March.

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Richard S. Sal: an, Esquire Ivan W.

Smith, Esquire Chairman Chairman Atc=ic Safety and Licensing Atomic Safety and Licensing Appeal Board Board U.'S.

Nuclear. Regulatory Co-ission U.S. Nuclear Regulatory Commissic..

Washington, D.C.

20555 Washington, D.C.

20555 In the Matter of Northern States Power Cc=pany, et al.

(Tyrone Energy Park, Unit 1)

Docket No. STN 50-484 1

l 1

Gentle =en:

Please find enclosed a ccpy of a news release issued on July 24, 1979, by Northern States Pcwer Cc=pany, which announces a decision by the co-evners of Tyrone Energy Park to cancel that project.

Pending before the Atomic Safety and Licensing Board in this matter is the remand ordered by the Ator-J.c Safety and Licensing Appeal Board in A*A3-464, 7 N.R.C. 372 (1978).

Also pending before the Appeal Board in t.his docket is a preceeding to determine the consequences of radioactive raden gas releases attributable to the mining and =illing of uranium fuel and to factor the result into the NEPA cost-benefit analysis for the nuclear power facili-ties in this and a n"-'er of other dockets.

See Philadelchia Electric Conrany, et al. (Peach Bottem Atomic Pcwer Stat;,.on, Un?:s 2 and 3), e: al., ALA3-480, 7 N.R.C.

796 (1978); ALA3-509, 8 N.R.C.

679 (1978); ALA3-540 (April 25,1979).

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UNITED STATES OF M ERICA

/Af NUCLEAR REGULATORY COI4 MISSION eg'd2 ATOMIC SAFETY AND LICENSING APPEAL BOA (D

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Richard S. Salzman, Chairman ep.q. ;,; gyp /

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Michael C. Farrar

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Dr. W. Reed Johnson N,N,

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In the Matter of

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NORTHER 2I STATES POWER COI1PANY, - _AL. ) Docket No. STN 50-484 ET (Tyrone Energy Park, Unit 1)

)

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ORDER August 30, 1979 Co-applicants have informed us that the construction of the Tyrone nuclear facility has been cancelled.

As they requested and in the absence of objections, all proceedings involving the application to licer.se construction of this facility are terminated and the case is dismissed.

/

It is so ORDERED.

FOR THE A?P G L SOARD

- - )Sa,Y' Men __

C. Jeab.) Bishop Secretary to the Appeal Board

• / ' Copies of this order have also been sent to the parties to the proceedings conso,lidated for hearing.on the radon

-is s ue.

See AL.%-540, 9 NRC _ (April 25, 1979).

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Mr. Harold R. Denton, Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C.

20555 In the Matter of Northern States Power Company, et al.

(Tyrone Energy Park, Unit 1)

Docket No. STN 50-484

Dear Mr. Denton:

Mr. Dienhart of Northern States Power Company has asked me to respond to your letter of June 16, 1980, enclosing an Order to Show Cause issued in this docket.

The enclosed answer filed on behalf of the holders of Construction Permit No. CPPR-157 interposes no objection to the entry of an order in substantially the form proposed in the Order to Show Cause.

Sincerely, b.

Thomas A.

Baxter Counsel for Permittees

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Office of the Executive Legal Director

_Docketi g Service Section h'ard Ihrig, squire i

fr. Arthur V. Dienhart t

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July 1, 1980 UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION BEFORE THE DIRECTOR, OFFICE OF NUCLEAR REACTOR REGULATION In the Matter of

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NORTHERN STATES POWER COMPANY,

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Docket No. STN 50-484 ET A*.

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(Tyrone Energy Park, Unit 1)

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PERMITTEES' ANSWER TO ORDER TO SHOW CAUSE On June 16, 1980, the Director, Office of Nuclear Reactor Regulation, issued on behalf of the Commission an Order to Show Cause why Construction Permit No. CPPR-157 should nc.: be revoked.

Permittees Northern States Power Company, et al.,

have no objection to the entry of an order in substantially the form proposed in tne Order to Show Cause.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE Thomas A.

Baxter Counsel for Permittees 1800 M Street, N.W.

Washington, D.C.

20036 (202) 331-4100 Dated:

ly 1, 19 80 8047

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36i Chase Street Burlington, Vermont e5401 July 7, 1980 Mr. Harold R. Denton Director Office of Nuclear Reactor Regulation Nuclear Regulatory Consnission Washington, D.C. 20555 Re: In the Matter of NSP et al (Tyrone Energy Park, Unit 1) Decket No. STN 50-484, Order to Show Cause Why Construction Permit Should Not be Revoked

Dear Mr. Denton:

I have your letter of June 16, 1980, enclosinia the order to show cause issued to theTyrone applicants. The purpose of this letter is to advise you my address has changed. My new address is set forth above.

If it should be necessary to ccri-tact me by telephone, my number is 802-658-6070.

I continue to represent Badger Safe Energy Alliance, Inc., in connection with this matter.

Sincerely,

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' Richard Ihrig cc: NSP Executive Legal Di rector Yv

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DEisenhut RTedesco BJYoungblood Richard Ihrig, Esq.

ELicitra Badger Safe Energy Alliance MRushbrook 875 Sumit Avenue I&E (3)

St. Paul, Minnesota 55105 JM111er Mqusa (& "MU

Dear Mr. Ihrig:

66cNA (.'7256)

Your petition of August 15, 1979, on behalf of the Badger Safe Energy Alliance requested that the construction pemit held by Northern States Pcwer Company

}

et al. for construction of the Tyrone Energy Park be revoked because of the TTeelisees' stated decision to cancel the project.

Your petition was noticed in the Federal Register on September 14, 1979 (44 FR 55256).

Enclosed is the Order which I have issued to Northern States Pcwer Company, et al. today. The Order requires the licensees to Show Cause within twenty-five days why their license should not be revoked.

If the licensees fail to show cause within the allotted time or consent to the entry of an order, an order will be issued revoking the construction pemit. The licensees or any person who has en interest affected by the Order may request a hearing within the twenty-five days.

A copy of this grant of your petition will be placed in the Coccission's Public Docur.ent Room at 1717 H Street, LW., Washington, D. C.

20555.

Sincerely, Origh.1 sp.sf hi' H. R. DeM:3 '

f Harold R. Denton, Director Dffice of Nuclear Reactor Regulation

Enclosure:

As Stated cc: NSPC

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