ML19330B972
| ML19330B972 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 08/05/1980 |
| From: | Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8008070323 | |
| Download: ML19330B972 (9) | |
Text
,
t o
UNITED STATES OF AMERICA 8/5/80 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
CINCINNATI GAS AND ELECTRIC
)
Docket No. 50-358 COMPANY, et al.
)
)
(Wm. H. Zimmer Nuclear Power
)
Station, Unit No. 1)
)
NRC STAFF OPPOSITION TO INTERVENOR FANKHAUSER'S MOTION TO ADMIT ADDITIONAL CONTENTIONS On September 24, 1975 Notice of Opportunity for Hearing was published in the Federal Register (40 Fed. Reg. 43959). That Notice provided that petitions to intervene (with contentions) must be filed on or before October 25, 1975.
Pursuant to the Notice Dr. Fankhauser petitioned to intervene, and on November 28, 1975 this Board granted his petition along with the petition of Miami Valley Power Project (MVPP).
Now, almost five years later Dr. Fankhauser, by and through his counsel, seeks to have two additional contentions admitted. Dr. Fankhauser's Motion is without merit and should be denied.
Late intervention and late contentions are geverned by 10 C.F.R. 5 2.714 (a)
(1)(1)-(v). Those provisions require addressing (i) good cause, (ii) availability of other means to protect petitioner's interest, (iii) the extent to which participation could be expected to assist in developing the record, (iv) the extent to which the interest is otherwise represented and (v) the extent to which participation would broaden the issues or delay the proceeding. Dr. Fankhauser makes no effort to address the 800807032 3 g
c.
substance of these Comission requirements and in this regard alone his motion is fatally defective. See Nuclear Fuel Services (West Valley Repro-cessing Plant), CLI-75-4,1 NRC 273, 275 (1975).
The only hint of " good cause" is Dr. Fankhauser's assertion (Motion at page 3) that MVPP may not " vigorously. litigate" their contentions which express similar concerns.
It is inappropriate for Dr. Fankhauser to deni-grate MVPP's participation in this proceeding. Dr. Fankhauser's concern regarding MVPP's pursuit of its contentions cannot, and does not, constitute
" good cause" pursuant to 10 C.F.R. s 2.714(a)(1)(1). Nor is it sound for Dr. Fankhauser to allege, without some basis, that MVPP will not protect their interest expressed in contention 13 that the Applicant is financially unqualified to operate the proposed facility. Dr. Fankhauser alleges.that his participation will help develop a sound record. Again, he so alleges without support. Dr. Fankhauser is a biologist with no expertise in energy forecasting or public utility financing and history would not support his allegation that he can aid in developing a record.
Dr. Fankhauser's first contention is that the economic costs of Zimmer do not justify the granting of an operating license. The Appeal Board stated in Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2),
ALAB-204,1 NRC 347, 369 (1975), "if the electricity to be produced by a proposed project is genuinely needed... then the societal benefits achieved by having that electricity available are immeasurable." Once need-for-power has been established, economic cost is beyond NRC's regulation (except to the extent that the Applicant must be financially capable of performing
the requested license).
Further, unless some alternate way of producing needed power is environmentally superior, there is no need to compare the cost of producing power from.the proposed facility with the costs of other-e wise producing the power.
As stated in Consumer Power Co. (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155,162-163 (1978):
But if there are no preferable environmental alternatives, such cost-benefit balancing does not take place. Manifestly, nothing in NEPA calls up us to sift through environmentally inferior alternatives to find a cheaper (but dirtier) way of handling the matter at hand.
In the scheme of things, we leave such matters to the business judgment of the utility companies and to the wisdom of the State regulatory agencies responsible for scrutinizing the purely eco-nomic aspects of proposals to build new generating facilities.
In short, as far as NEPA is concerned, cost is important only to the extent it results in an environmentally superior alternative.
If the " cure" is worse than the disease, that it is cheap is hardly impressive.
(footnote omitted]
Here the Licensing Board's Order of June 4,1979 at page 18 granted summary disposition of MVPP's contention 11 which was that there was not a need-for-power for the Zimmer facility. The Licensing Board's Order of June 4, i
1979 is the law of the case and, absent some very strong showing of error, controls. Dr. Fankhauser makes no showing, much less any strong showing, of error by this Licensing Board. He makes no claim in this contention that other methods of producing power are environmentally superior.
In addition, we point out that where the need-for-power has been demonstrated, as here, alternatives ranked on economic costs are beyond the NRC's regulatory authority.
See Illinois Power Co. (Clinton Power Station, Units Nos. I and 2), ALAB-340, 4 NRC 27, 48 (1976).-1/
1/ The ability of a utility to economically market power as indicated in Midland, supra, is the decision of the utility and state utility commis-sions and not the NRC.
~.
Dr. Fankhauser's second contention is that costs for the Zimer project have risen.
Inflation has been a continuing factor in power plant construction for some time. Costs of Zirisher have risen from the day the PSAR and ER were docketed and will certainly continue to rise. Again, what Zimer costs in monetary terms is not a matter to be here litigated, once need-for-power has been established.
Economic costs and economic interests are not cognizable matters to be litigated in an NRC licensing proceeding, either pursuant to the Atomic Energy Act or National Environmental Policy Act (NEPA), Portland General Electric Co. (Pebble Springs Nuclear Plants, Units 1 and 2), CLI-76-27, 4 NRC 610, 613-14 (1976); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-77-11, 5 NRC 481 (1977); and other cases.
Inso-far as Dr. Fankhauser alleges that data in the FES has changed, as the basis of his good cause argument, his motion fails. The Comission noted in Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), 9 NRC 607 (1979) in regard to need-for-power that data does change, but such change does not in and of itself require Board recon-sideration. This is a dynamic environment and society and data are constantly in microflux. To reopen for reconsideration of changing data the proponent (Dr. Fankhauser) has a heavy burden to demonstrate that the issue would be differently resolved with the introduction of the new data, see Kansas Gas and Electric Co. (Wolf Creek Generating Station), ALAB-462, 7 NRC 320, 330 (1978) and cases cited therein and Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 21-22 (1978).
In his motion and memorandum, Dr. Fankhauswer has not even attempted to address this burden and little would be gained by further addressing his memorandum in this re-gard.
t
In the absence of some strong showing that new data has been omitted from the record which would, or might, change the result, Dr. Fankhauser's motion must be denied.
In substance, Dr. Fankahuser's newly proposed contentions are based upon a theory that if data changes the NRC's environmental analysis must be redone.
Essentially, Dr. Fankhauser wants the environmental analysis re-opened or reconsidered.
The legal standards for re-opening or reconsideration are quite specific. There must be a significant unresolved safety issue, Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 AEC 358 (1977) or a major change in facts material to the resolution of major environmental issues, Commonwealth Edison Co. (La Salle County Nuclear L
~
Station, Units 1 and 2), ALAB-153, 6 AEC F.2d (1973).
The proponent of such a motion has a heavy burden to bear.
Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320 (1978). None of the aforesaid affirmative requirements are met in Intervenor's motion.
The burden required of a moving party to reopen the record and the sound l
l policy reasons behind that burden were articulated in denying a motion for reconsideration of the need-for-power issue on the basis of new evidence in Duke Power Company (Catawba Nuclear Station, Units I and 2), ALAB-359, 4 NRC 619 at 621 (1978), and bear repeating here:
After 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 circumstance has arisen, some new trend has been observed or some new fact discovered,"
has a difficult burden to bear. The reasons for this i
were cogently given by Mr. Justice Jackson more than thirty years ago in ICC v. Jersey City, 322 U.S. 503, 514 (1944):
0' e of the grounds fcr resistance to ad-n ministrative orders throughout federal ex-perience with the 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 enforce-ment of the administrative order. Adminis-trative consideration of evidence -- par-ticularly where the evidence is taken by an examiner, his report submitted to the parties, and a hearing held on their exceptions to it -- always creates a gap between the time,.__
the record is ciosed and the time the adminis-trative decision is promulgated. This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful.
If upon the coming 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 discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.1/
This " difficult burden" includes a showing that "a different result would have been reached initially had [the new information] be considered."-2/ Dr.
Fankhauser's motion and memoranda completely fail to meet these require-ments.
--1/
Accord, United States v. ICC, 396 U.S. 491, 521 (1970); Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), ALAB-227, 8 AEC 416, 418 n. 4 (1974); Cleveland Electric Illuminating Company Per Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 750-51 1977.
2/ Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), supra, at 418, citina Unarco Industries, Inc. v. Evans Products Company, 403 F.2d 638 (7th Cir.1968); and Knight v. Hersh, 313 F.2d 879 (D.C. Cir. 1963).
l L
n As noted above, the Commission in Shearon Harris has held that the Staff's environmental assessment need not be re-done for changes in data except when these changes might significantly change the environmental assessment.
Judicial interpretation of NEPA is in accord, i.e., courts recognize that data constantly changes and where a matter is addressed in an agency's environmental assessment, it need not be re-addressed for updating and changing data, Environmental Defense Fund, Inc. v. Froehlke, 368 F.Supp.
231 (W.D. Ma.1973), aff'd sub nom Environmental Defense Fund, Inc.
497 F.2d 1340 (8th Cir.1974).
In summary, Dr. Fankhauser's motion does not address the five factors required to be considered in determining whether to admit late contentions,10 C.F.R. 5 2.714(a)(1)(1-v); it provides no factual basis for its assertions, and it does not make a strong showing of significant new facts which might change the evidence (Wolf Creek, supra). Therefore, the Staff recommends that this Board deny the motion.
Respectfully submitted, GkA.)A Charles A. Barth Counsel for NRC Staff Dated at Bethesda, Maryland this 5th day of August,1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i
i In the Matter o,f
)
~ ~
CINCINNATI GAS AND ELECTRIC Docket No. 50-358 COMPANY, et_ al_.
h J
(Wm. H. Zimmer Nuclear Power
)1 Station, Unit No.1)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF OPPOSITION TO INTERVENOR FANK-I HAUSER'S MOTION TO ADMIT ADDITIONAL CONTENTIONS" in the above-captioned l
prgceeding 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 Commission's internal mail system, this 5th day of August, 1980.
Charles Bechhoefer, Esq., Chairman
- Leah S. Kosik, Esq.
Atomic Safety and, Licensing 3454 Cornell Place Board Panel Cincinnati, Ohio 45220 U.S. Nuclear Regulatory Comission Washington, D.C.
20555 W. Peter Heile, Esg.
Assistant City Solicitor Dr. Frank F. Hooper Room 214, City Hall School of Natural Resources Cincinnati, Ohio 45220 University of Michigan Ann Arbor, Michigan 48109 Timothy S. Hogan, Jr., Chairman Board of Comis'sioners Mr. Glenn 0. Bright
- 50 Market Street l
Atomic Safety and Licensing Clennont County-Board Panel Batavia, Ohio 45103 U.S. Nuclear Regulatory Comission Washington, D.C.
20555 John D. Woliver, Esq.
. Clermont County Comunity Council Troy B. Conner Esq.
Box 181 Conner, Moore and Corber Batavia, Ohio 45103 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 i
1 e
i
.w.
ww e
.r ym.-
r
a
- William J. Moran, Esq.
Atomic Safety and Licensing General Counsel Aopeal Board
- Cincinnati Gas:& Electric Company U.S. Nuclear Regulatory Commission P.O. Box 960 Washington, D. C.
20555 Cincinnati, Ohio 45201 Docketing and Service Sect.fon*
Atomic Safety and Licensing Office of the Secretary
, Board Panel
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Andrew B. Dennison, Esq.
David Martin, Esq.
200 Main Street Office of the Attorney General Batavia. Ohio 45103 209 St. Clair Street First Floor Robert A. Jones, Esq.
Frankfort, Kentucky 40601 Prosecuting Attorney of Clermont County, Ohio Mrs. Mary Reder 154 Main Street Box 270, Rt. 2 Batavia. Ohio 45103 California, Kentucky 41007 Dale D. Brodkey Assistant Attorney General Division of Environmental Law Office of Attorney General 209 St. Clair Street Frankfort, KY 40601 l
LK4 fA/uM K Myr Karman' Coun for NRC Staff
_.