ML19339C271
| ML19339C271 | |
| Person / Time | |
|---|---|
| Site: | 05000484 |
| Issue date: | 11/13/1980 |
| From: | Adragna J, Francis F NORTH DAKOTA, STATE OF, SOUTH DAKOTA, STATE OF, SPIEGEL & MCDIARMID |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8011180015 | |
| Download: ML19339C271 (23) | |
Text
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DMO 'A UNITED STATES OF AMERICA / 9' UC i BEFORE THE g F!cmngk' sfgvg3 40f NUCLEAR REGULATORY COMMISSION ' g ,_
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tates Power Co., et al. ) Docket No E=:S '
CO l'iflNorthprp'(Tyrone'.p'Inergy Park, Unit 1) ) STN-50-48k g f. g.
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- v 73 PETITION FOR RECONSIDERATION i
! Pursuant to Section 2.771 of the Commission's Regulations, the Dakota Centissions, through their attorneys, hereby seek rehearing of the Order dated November 3,1980 in I i
the above-captioned docket.
I. THE NRC ACTED ARBITRARILY, CAPRICIOUSLY, AND CONTRARY 'IO ADMINISTRATIVE PRINCIPLES IN REFUSING 'IO DEFER THE i REVOCATION In the Order of November 3,1980, the Commission denied a request by the Dakota Commissions to defer for 12-months the-revocation of a construction permit for the Tyrone nuclear unit that will cost customers of . both the 4
t
, permittee, the Northern States Power Company - Wisconsin (NSP-W), and of its parent, Northern States Power-Company -
Minnesota (NSP-M), somewhere-between $80-120 million.
Instead, the NRC will presumably hasten to respond to the i
4 request of the Badger Safe Energy Alliance, an intervenor ,
based in Wisconsin, 1/ made in August,1979, to make official-
_1/ . Northern Thunder and the Badger Safe Energy Alliance are intervenors who oppose the construction of the nuclear unit principally on environmental grounds. Northern Thunder filed
- comments . opposing - the deferral in this proceeding.
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8 011180C$
the death of the project. This haste to issue a " death certificate" that presumably will do nothing to aid the public, the licensee, or the NRC is especially unseemly in light of the request by the Dakota Commissions simply to defer NRC action in this regard for a few more months. If this Commission were not in such a hurry to bury the corpse, it might take the time to study the record of this plant's demise. For example, it might read the separate opinion of the then-Chairman of the Wisconsin Commission that NSP might consider in its Second Advance Plan "a Tyrone nuclear unit at Tyrone." (see Attachment A). This second plan was due to be filed af ter the Wisconsin Commission's decision rejecting the Tyrone Unit.
At this time, NSP's customers presumably are expected to pay for this costly funeral. At the least, the Dakota Commissions have the responsibility to seek to avoid unnecessary costs that will not, according to NSP, be within the Dakota Commissions' regulatory authority. 1/ The Dakota Commissions are not rich uncles who can afford to indulge the wb'is of either NSP or Wisconsin. We are also not expecting the NRC to fashion any relief that will require the NRC to do anything affirmative 1 Nevertheless, it is distressingly ingenuous for an agency that is only too keenly aware of the 1/ Public documents, e.g., NSP's filings in FERC Docket No.
ER79-616, set out these arguments. The Dakota Commissions object to this interpretation.
Alphonse-Gaston ef fect of multiple agency rulings to deny that deferral of a seemingly innocuous ruling 1/ when two state regulatory agencies have stated that the decision could affect consideration of the potential viability of a Tyrone nuclear unit by other governmental agencies. Surely, comity among governmental bodies would require some weight to be given by the NRC to the considerations raised by the Dakota Commissions.
The legal arguments set out in the next section clearly establish the right of the Dakota Commissions to intervene. Apart from these legal arguments -- persuasive as they are -- there is a more fundamental equitable argument here. Something is dreadfully wrong with the whole licensing process that tolerates such a cavalier attitude towards the captive customer of electricity. NSP's retail customers are required to pay S80-100 million for a cancelled nuclear plant in which they took no part in the decision to cancel. They must pay their full electric charges as a condition of receiving electric service from NSP, the only electric util-ity that can make electricity available to these customers.
Despite their exclusion from any realistic alternatives, these customers are told that the state regulatory agencies they rely on for protection lack standing before the NRC.
Meanwhile, the NRC hastens to deliver as expeditiously as possible a signed and sealed official announcement of the 1/ Not one party, including the NRC, indicated a single injury or detriment that would flow from a 12 month deferral.
1 death of the plant in response to a motion by an intervenor who has consistently opposed the construction of the nuclear unit. 1/
II. THE DAKOTA COMMISSIONS POSSESS THE REQUISITE STANDING TO INTERVENE IN ANY REVOCATION PROCEEDING AND 'IO SEEK DEFERRAL OF COMMISSION ACTION A. Technical Article III Standing Requirements Should Not Apply to Limit the Participation Rights of Dakota Commissions Before the NRC In denying the Dakota Commissions' Mot ion to Defer Commission Action, Petition to Intervene and Request for Hearing, the NRC relied on the very technical standing requirements arising from the limitation of the jurisdiction of the federal courts under Article III of the Constitution.
Although, as discussed in Part II (B) infra, the Dakota Commissions fulfill even these restrictive standing requirements, the Article III standing tests do not apply to restrict participation by State Commissions in proceedings to revoke licenses before the NRC.
Commissioners Ahearne and Hendrie explicitly based their denial of deferral of revocation of the Tyrone permit l and denial of the Dakota Commissions' request for a hearing on the grounds that the Commissions have failed to meet the 1/ It should be noted that Northern Thunder predicted the basis for the Wisconsin Commission's decision in denying a certificate for the plant, but the NRC earlier rejected Northern Thunder's contentions stating: "We have already ruled on this order that the possibility of state actions inconsistent with our purposes may not be the basis for with-holding a permit or license . . . ." Memorandum and Order Concerning Northern Thunder's Contentions on Remanded Matters, Docket No. STN-50-484, issued July 28, 1978, p. 11.
" injury in f act" portion of the Article III standing test 1/
as enunciated in Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38 (1976), quoted at p. 1 of the opinion of Commissioners Ahearne and Hendrie:
In sum, when a plaintif f's standing is brought into issue the relevant inquiry is whether, assuming justiciability of the claim, the plaintif f has shown an injury to himself that is likely to be redressed by a favorable decision.
Absent such a showing, exercise of its power by a federal court would be gra-tuitous and thus inccc.sistent with the Art. III limitation.
Commissioners Ahearne and Hendrie concluded that the Dakota Commissions could not fulfill the Art. III test because they believe deferral of the revocation of the Tyrone license will not redress the economic injury to the citizens of North and South Dakota resulting from termination of the Tyrone project. This asserted inability of the requested NRC action (deferral of revocation) to redress the injury to the Dakota Commissions is also stressed in the concurring opinion of Commissioners Gilinsky and Bradford.
As suggested by the very portion of the Simon v.
Eastern Kentucky Welfare Rights Organization which Commissioners Ahearne and Hendrie quoted, this restrictive 1/ These Commissioners also stated, without any discussion, that the Dakota Commissions failed to establish that their interests fall within the zone of interests protected by NEPA and the Atomic Energy Act. As discussed infra, the Dakota Commissions' interests fall well within those bounds.
_- . . . - - . - - .-. .- ~ --.. -.- .. . - - .. .- . . -.
I l construction of the injury in fact test is derived from Art.
III which limits the jurisdiction of federal courts, not l
administrative agencies such as the NRC. In fact, not caly is the NRC not bound to follow the technical federal court t tests in determining standing in administrative proceedings, j but the NRC's statutes and regulations mandate application of
- a much less restrictive test in the circumstances presented here.
i
! Administrative agencies are not required to grant j standing only to those who meet judicial standing tests. In i
l Koniag, Inc., Village of Uyak v. Andrus, 580 F.2d 601 (D.C.
1 l Cir.) cert. denied, 439 U.S. 1052 (1978), the Court refused l to apply judicial stan< ling tests to restrict administrative
- appeals within the Department of Interior. The D.C. Circuit explained, 580 F.2d at 606 (emphasis added)
I In the Church of Christ case the court assumed that the same standards apply to determining standing before an agency and standing to obtain judicial review and went on to hold that the FCC
! must permit listeners to participate in
! broadcast relicensing proceedings. In-the National Welfare Rights Organization
- case the court reasoned that a party with ,
i an interest sufficient to obtain judicial review of agency action should be per-i mitted to participate before the agency to ensure it meaningful judicial review ,
on all the issues. But it does not
' follow from either case that a party must be excluded from participation before the agency if it does not have a sufficient interest to meet Article III requirements for judicial review. Indeed, as we i pointed out in the National Welfare .
l 5
, -- -n p. -- w +m,,.,s- r- -,,~-,m -,~m -,m, . wn ,n,,e,-,, -, , ,
+
Rights Organization case, " standing to sue depend [s] on more restrictive cri-teria than standing to appear before administrative agencies . . . " 139 U.S.
App. D.C. at 53 n. 27, 429 F.2d at 732
- n. 27, see Gardner v. FCC, 174 U.S. App.
D.C. 234, 238, 530 F.2d 1086, 1090 (1976). See also 3 K. Davis, Administrative Law Treatise S22.08, at 240 (1958).
Af ter reviewing the pertinent statutes and regulations which provided for administrative appeals by " parties aggrieved",
the Court concluded "that grafting strict judicial standing requirements onto these regulations would be inconsistent with the Act and the Secretary's plan to implement it." 580 F.2d at 606. The Court affirmed the finding of standing for the State of Alaska whose interest was determined to be
" conjectural at best," 580 F.2d at 608, and governmental agencies for which the likelihood of harm was " attenuate [d]",
580 F.2d at 607. Thus, where it is inconsistent with the spirit of the relevant statutes and regulations, the strict judicial standing tests should not be applied to bar par-ticipation in agency proceedings.
Reference to the statutes and regulations relevant to the instant action makes clear that application of l restrictive judicial limits on standing is inappropriate. As I
in Koniag, a standard much broader than the Art. III standing i test is mandated here.
The statutes which govern the NRC's procedural ,
obligations in revoking licenses provide for broad par-ticipation in the revocation process. The Commission is obligated, under 42 U.S.C. 52239, to grant a hearing con-cerning license revocation "upon the request of any person whose interest may be af fected by the proceeding . . . ."
That this statutory participation requirement is broader than the Art. III standing test is further emphasized by the language of the Administrative Procedure Act provision governing license revocation proceedings. 1/ Under 5 U.S.C.
5558(c), proceedings concerning licenses are to be conducted "with due regard for the rights and privileges of all the interested parties or adversely af fected persons . . . ." In New York Pathological and X-Ray Laboratories v. Immigration and Naturalization Service, 523 F.2d 79, 82 (2d Cir. 1975),
this provision was construed to mandate an agency, except in limited cases involving willfulness and public health and safety, "in withdrawing, suspending or revoking licenses, to proceed on notice and to provide the opportunity for interested parties to be heard." Thus the pertinent statutes are fully consistent with broad, rather than restrictive, standing requirements.
1/ As set forth in 42 U.S.C. 52236(b), "The Commission shall follow the provisions of section 9(b) of the Administrative Procedure Act in revoking any license." These provisions are now found in 5 U.S.C. S558(c). See 42 U.S.C.A. 52236 note, " References in Text."
The NRC's own precedent is fully consistent with the Dakota Commissions' reading of the NRC's statutory par-ticipation requirements. In Portland General Electric Company (Pebble Springs Nuclear Plant. ijnica 1 and 2)
CLI-76-27, 4 NRC 610, 613 (1976), the Commission explicitly recognized that judicial standing requirements were merely "useful guides" in determining participation rights. The Commission further noted: "Because of the value perceived in such (public] participation, this Commission and its prede-cessor . . . have always followed a liberal construction of judicial standing tests in determining whether a petitioner is entitled to intervention as a matter of right . . . .
4 NRC at 616 (emphasis added). In addition, the Commission acknowledged that it was not legally restricted to applying judicial standing tests to determine standing in its admin-istrative proceedings. 4 NRC at 615. Thus, the Commission's own precedents stand for the proposition that a liberal and not overly technical approach should be taken with respect to the petition of the Dakota Commissions for intervention and deferral of the NRC's revocation decision.
The Commission's regulations go even further in providing for significant involvement for entities like the Dakota Commissions. In addition to the generally applicable intervention procedures set forth in 10 C.F.R. 2.714, special procedures are provided in 10 C.F.R. 2.715 for participation of representatives of interested states or agencies thereof.
Section 2.715 specifically provides state agencies with the i
right to participate in any hearings, the opportunity to advise the Commission, as well as the right to file petitions for review by the Commission. The NRC's regulations, espe-cially those regarding participation by states, explicitly recognize that the NRC is not bound by judicial concepts of standing. In fact, these regulations are in apparent conflict with judicial standing requirements in the restric-tive form set forth in Simon v. Eastern Kentucky Welfare Rights Organization. 1' In their opinion, Commissioners Ahearne and Hendrie conclude that Section 2.715 does not apply to give the Dakota Commissions standing to " trigger a hearing." While this sec-tion does not literally require a hearing be held at the request of states, it certainly manifests a strong predispo-sition to grant states full participation and a right to appeal, even where the states do not fulfill judicial stand-ing requirements. There is certainly nothing in the regula-tion to support the NRC's restrictive view of its scope; the right to participate in hearings and to petition for review would seem to encompass the right to request a hearing.
Indeed, the description of the participation of Kentucky in
! Public Service Company of Indiana (Marble Hill Generating Station, Units 1 and 2) CLI-80-10, 11 NRC 438, 439 (1980) gave no hint that S2.715 did not apply to request for a
- 1/ Section 2.715 provides that the presiding of ficer "will I afford" interested states participation, withret even requiring the states to take a position, much less demonstrate " injury in f act." The provision for petitions for review is no less absolute.
hearing. In any event, the highly technical manner in which the Dakota Commissions' petition for intervention and a hearing was treated by the NRC is wholly incGnsistent with the spirit of S2.715 of the NRC's regulations.
In view of the strong mandate for broad par-ticipation in licensing matters embodied in the Commission's regulations and statutes, the very technical Art. III standing requirements are not appropriately applied to reject the Dakota Commissions' request to intervene in and defer the revocation process. Given the very significant stake of the Dakota Commissions and their citizens in the proceeding at issue, it is truly ironic, unfortunate and improper for the NRC to employ unnecessary procedural technicalities to thwart the Dakota Commissions' ef forts to assure a safe, economic and reliable supply of energy for the citizens of their states by means of a 12 month postponement of the NRC revoca-tion decision.
B. Even If Judicial Standing Tests Were Applicable To This Situation, The Dakota Commissions Have Satisfied These Tests Assuming that the judicial standing tests were applicable, in their most narrow and restrictive form, to the instant agency action, the Dakota Commissions amply satisfy those tests. The Dakota Commissions can establish that they have been _njured in fact and that their injury is arguably within the zone of interest of the relevant statutes: the Atomic Energy Act and the NEPA. The NRC's denial, on the basis of lack of standing, of the Commissions' requests for
intervention, a hea' ring and deferral of a revocation decision should therefore be reconsidered and reversed.
- 1. Injury in fact The Dakota Commissions are public authorities charged with the regulation of utilities serving consumers within their respective jurisdictions, and NSP-M is such a utility.
The revocation of the NSP construction permit may cause considerable hardship to the interest of North Dakota and South Dakota customers of NSP. Specifically, that interest is the adequate supply of power at a reasonable cost. The Dakota Commissions have a right and a respon-sibility to protect that interest.
At present NSP seeks and expects to pass through the bulk of the costs of cancelling the Tyrone Unit to its customers in petitioners' respective jurisdictions. Such costs, if passed through, would be borne by those customers without any attendant benefit in the form of additional plant in service ce more reliable power supplies. It is NSP-M 's further contention that the Dakota Commissions are without authority to regulate the rate increases represented by the Tyrone facility. Among the options that might result in a lower alternative power supply is the refiling of NSP's application for a certificate of need for a nuclear unit with the Wisconsin Commission. The foreclosure of that option thus threatens petitioners' interest in insuring that the citizens of North Dakota and South Dakota have an adequate supply of power at a reasonable cost.
l 1
l The NRC's action, in revoking the NSP construction permit now, rather than deferring such action for 12 months as requested by the Dakota Commissions, directly and signifi-cantly injures the Commissions and the consumers they repre-sent by thwarting their ability to take actions within that time to achieve an adequate and more economic supply of power in their states by means of encouraging construction of the Tyrone plant pursuant to the extant NRC construction permit.
It is the preclusion and frustration of the ef forts of the two state commissions which the NRC action threatens and
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which would be fully remedied by the requested deferral.
NSP's stated present intention not to seek to refile its application for a certificate of need for a nuclear unit with the Wisconsin Commission is presumably based in large part on the assumption that the costs of can-celling the Tyrone plant will be passed through to customers in North Dakota and South Dakota. The Dakota Commissions have already taken steps substantially calling into question tne basis for such an assumption. If the Dakota Commissions are successful and NSP is required to bear the costs of aban-doning the plant resulting from its failure, in part, to appeal the Wisconsin decision that precluded construction, it may be that both NSP and Wisconsin will be more willing to accept the interstate responsibilities associated with the issuance of the NRC's construction permit. Gratuitous 1
l l
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action 1/ by the NRC in immediately revoking NSP's license,
-rather than deferring such action for 12 months, would severely injure the Dakota Commissions in foreclosing their an opportunity to carry out their responsibilities to protect their citizens from millions of dollars of purposeless and avoidable cost. A deferral of NRC action, the specific relief requested by the Dakota Commissions, would fully l remedy this injury by leaving them free to pursue their own procedures.
The NRC's focus on the injury to the Dakota Commissions in NSP's failure to construct the Tyrone plant is thus too narrow. 2/ While ultimately it is this injury which the Dakota Commissions seek on their own to redress, the i
i 1/ No pleading or order in this docket has hinted, much less demonstrated, any immediate need for Commission action or any prejudice from the requested deferral. It defies i reason and logic that at the behest a group which does not allege any prejudice from the continued, but presently dormant, construction permit, the NRC will deny the legiti-mate rights of the Dakota Commissions to pursue avenues to safeguard their interests.
It is instructive that the only adverse interest cited 1
by Badger Safe Energy Alliance, Inc. in its August 15, 1979 petition is from actual construction of the Tyrone plant, a matter the NRC deemed too remote to justify the grant of standing to two state' commissions requesting mere deferral of the NRC's revocation order.
2/ Furthermore, the fact that the NRC action would not itself require NSP to build the plant is not determinantive of injury in fact even under the Art. III test. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 262-63 (1977).
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relief which Dakota Commissions seek to obtain from the NRC is targeted to a different, but no less concrete, interest in taking their own actions to enhance "the development, use and control of atomic energy . . . so as to . . . improve the general welfare, increase the standard of living . . . . " 42 U.S.C. S2011. This opportunity to pursue their own proce-dures is what the Dakota Commissions seek; this opportunity will be significantly impaired by immediate revocation of NSP's permit; 1/ and deprivation of this opportunity will be fully avoided and thus redressed by the 12 month deferral the Dakota Commissions seek. Since the Dakota Commissions have established an injury by agency action which will be com-pletely redressed by the requested relief, the injury in fact test set forth in Simon v. Eastern Kentucky Welfare Rights Organization has been satisfied.
- 2. Zone of interests The Dakota Commissions' interests in assuring for their citizens an adequate supply of power at a reasonable cost is well within the zone of interests protected by the Atomic Energy Act and the National Environmental Policy Act.
1/ In this regard, the Staff's suggestion, at p. 11 of its Response, that the Company could reapply to the NRC for another construction permit is well nigh incredible. To require NSP to initiate a brand new filing with its multiple approval processes would essentially doom any hope of reviving the Project so that the customers might gain some measure of benefits from the expenditures already made. The repetitious and costly refiling expenditures would simply raise further the costs of potential nuclear power with no benefit to the customers.
The injury to the Dakota Commissions' interests is within the scope of the NRC's obligation to carry out the purpose of the Atomic Energy Act that "the development, use, Or.d control of atomic energy shall be directed so as to . . .
improve the general welfare, increase the standard of living 42 U.S.C. S20ll(b). See also 42 U.S.C. S2013(d).
The NRC's refusal to defer its revocation decision will substantially injure the Dakota Commissions in their efforts to assure that their citizens benefit from the development of atomic energy, as previously authorized by the NRC in granting NSP's construction permit, rather than merely bear the enormous costs of an abandonment decision in which they have literally had no part. 1/
The Atomic Energy Act also mandates that the NRC cooperate with State Commissions "to promote an orderly regu-latory pattern between the Commission and State governments with respect to nuclear development and use" and expressly recognizes "the interests of the States in the peaceful uses of atomic energy." 42 U.S.C. S2021(a). The Atomic Energy Act further preserves state authority "with respect to the generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by the Commission." 42 U.S.C. S2018. Since the NRC's immediate and 1/ That economic interests are not excluded from the NRC's preview is discussed in detail in the Dakota Commissions' Reply filed August 18, 1980, pp. 4-7, 14-16 and is incor-porated herein.
gratuitous revocation of NSP's permit injures the Dakota Commissions in their ability to coordinate with the 11RC on the development of nuclear power which the NRC has already authorized and thwarts their use of their own regulatory authority, the injury to the Dakota Commissions falls within the zone of interest of NRC's statutory responsibilities. 1/
Finally, the Commission's regulations governing the standards for licenses and construction permits, Section 50.43(a), require the Commission, in a proceeding affecting Section 103 licenses, to "give notice in writing of each application to such regulatory agency as may have jurisdic-tion over the rates and services incident to the proposed activity." This notice requirement assumes a sufficient interest to confer standing. Moreover, the regulation establishes unequivocally that the interests represented by such regulatory agencies are within the purview of the Act.
Thus, the injury suf fered by the Dakota Commissions falls well within the zone of interest established by the Atomic Energy Act. In addition, as described fully below, Dakota Commissions have been injured in fact. Since both prongs of the judicial standing test have been satisfied, the Dakota Commissions respectfully request the NRC to reconsider its decision and grant the Dakota Commissions' request for 1/ . NEPA also contains provisions mandating coordination with states. See, for example, 42 U.S.C. S4331.
i l
intervention and deferral of the NRC's revocation of NSP's permit.
CONCLUSION Based on the foregoing discussion, the Dakota Commissions respectfully request the NRC to reconsider its Order of November 3, 1980 and grant the Dakota Commissions' motion to defer Commission action, petition to intervene and if necessary, to order a hearing.
Respectfully submitted,
{. f Trances E. 'Francif (/
g 'm fohn Michael Adragna #
Attorneys for the South Dakota Public Utilities Commission and the North Dakota Public Service Commission November 13, 1980 Law Offices of:
Spiegel & McDiarmid 2600 Virginia Avenue, N.W.
Wa:3hington, D.C. 20037 202-333-4500 l
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ATTACli!1ENT A ,
NORTHERN STATES POWER COMPANY (WISCONSIN)
NORTHERN STATES POWER COMPANY (MINNESOTA)
Docket No.
Exhibit No. (NSP-204)
Order Denying Authority to Build Tyrone Energy Park March 6, 1979 Nblic Service Commission of Wisconsin
. s j
l S
CHARLES J. CICCHETTI, CHAIRMAN, cot 3 CURRING: CA-5447 7
1
- 1. Introduction and Decision On one level the.Tyrone decision is quite easy for me.
If I take a narrow legal view of this case, I can cast a no vote for the proposed Tyrone nuclear plant.- In my opinion the applicants have not passed IJikh reasonable certainty.any of the tests noticed in this proceeding, or outlined in the advance plan. .
As such, the proposed Tyrone nuclear plant cannot be considered since it is not part of an approved advance plan for western Wisconsin. Under such a finding the Commission is required to substitute its own plan for electric power expansion for western Wisconsin. .
While I could write such an opinion and cast my vote using such a narrow standard, I will not. Such a decision for me would be tantamount to insulting the applicants, intervenors and the public alike. Additionally, I think of myself as something of an expert on the matters addressed in this cases forecasting, benefit / cost analysis, the economic viability of alternatives, and the economic meaning of interchange agreements. Accordingly, I believe these tests should be used by me to explain my vote.
For the' applicants the meaning is the same because I still vote no for Tyrone as proposed. Some improvements in the application could be made, but additional delays in reaching a -
[
decision will increase costs, add to pre-decisional expenditures b .
- and their attendant risks, and restrict the possibility of sub-L stituting alternatives. Therefore, I reject the proposition that
=-'
an amended Tyrone nuclear plant application should be considered.
I DM WD W3h g uJ D
s A l n b=
A Substitute Advance Plan II.
A. Reject the western Wisconsin advance plan which includes an 1100 MW nuclear unit for Tyrone.
B. Substitute a coal unit of most likely between 400 and l 800 MW for the Tyrone site to be operational in 1986, and direct Northern States Power, Wisconsin to submit such an application.
C. Seek information on the timing of such a coal unit ac Tyrone, vis-a-vis Alma 7.
D. And while I do not encourage it, I would not vote to preclude.at this time the filing of a Tyrone nuclear unit at Tyrone as one of the alternatives to be considered under NEPA for the new coal alternative that is to be provided by the applicant.
III. My Vote Considering the evidence in this case, the subtle differences in emphasis between what I think are the two choices, and the time delays of I, I am prepared to use my full regulatory authority and vote for the coal approach in II, and totally reject the application for the 1100 MW Tyrone Nuclear unit in Durand, Wisconsin in either its present or an amended form. Aside from editing, the above opinion was written before I had any knowledge
, of the final outcome. Some have urged,me to rewrite my opinion.
I reject that advice in the belief that how one decides a case
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is important. Crders should explain how the Commission finds
. and orders. I, therefore, will let the order and opinion stand for themselves.
e Charles J. Cicchetti
. Chairman
I I
9 UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION Northern States Power Co., et al. ) Docket No.
(Tyrone Energy Park, Unit 1)--
) STN-50-484 CERTIFICATE OF SERVICE I hereby certify that I have caused copies of the foregoing PETIr. ION FOR RECONSIDERATION to be served on the
, following parties by deposit in the United States mail, first class, postage paid, this 13th day of November, 1980.
-Harold R. Denton, Director Executive Legal Director Office of Nuclear Reactor Office of Nuclear Reactor Regulation Regulation U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Ivan W. Smith, Esq. Mr. Peter Peshcek Chairman-Atomic Safety and Public Intervenor Licensing Board Department of Justice U.S. Nuclear Regulatory 123 West Washington Avenue Commission Madison, Wisconsin 53702 Washington, D.C. 20555 Honorable Sandra S. Gardebring Atomic Safety and Licensing Special Assistant Attorney Board General U.S. Nuclear Regulatory 1935 West County Road B2 i Commission Roseville, Minnesota 55113 Washington, D.C. 20555 Mrs. Harold C. Bauer Dr. George C. Anderson Citizens for Tomorrow, Inc.
Department of Oceanography Route 1, Box 191 University of Washington Rock Falls, Wisconsin 54764 Seattle, Washington 98195 Michael J. Cain, Esq.
Karen D. Cyr, Esq. Bureau of Legel Services Stephen G. Burns, Esq. Department of Natural Resources Counsel for NRC Staff Box 7921 Office of the Executive Madison, Wisconsin 53707 Legal Director U.S. Nuclear Regulatory Ms. Helen M. Kees Commission Route 3 Washington, D.C. 20555 Durand, Wisconsin 54736 Gerald Charnoff, Esq. CAUSE Jay E. Silberg, Esq. c/o Mr. Tom Richards Thomas A. Baxter, Esq. Route 1 Shaw, Pittman, Potts & Boyceville, Wisconsin 54725 Trowbridge 1800 M Street, N.W.
Washington, D.C. 20036
-- , - ., , , , , . , , . - - - - . a , , , - - . -------,r
Steven M. Schur, Esq. Mr. Tom Galazen Wisconsin Public Service R.R. #2, Box 64 Commission Turtle Lake, Wisconsin 54889 Hill Farms State Office Bldg.
4802 Sheboygan Avenue Ray H. Walton, Esq.
Madison, Wisconsin 53702 Commerce Counsel North Dakota Public Service Richard Thrig, Esq. Commission 874 Summit Avenue Capitol Building St. Paul, Minnesota 55105 Bismarck, North Dakota 58505 Mr. Stanley Cider Walter Washington, Esq.
c/o Durand Postmaster Assistant Attorney General Tyrone, Wisconsin 54736 South Dakota Public Utilities Commission Richard S. Salzman, Esq. Capitol Building Chairman-Atomic Safety and Pierre, South Dakota 57501 Licensing Appeal Board U.S. Nuclear Regulatory Rcdney Wilson, Esq.
Commission Special Assistant Attorney General Washington, D.C. 20555 Minnesota Public Service Commission 790 American Center Building Michael C. Farrar, Esq. 150 East Kellogg Boulevard Atomic Safety and Licensing St. Paul, Minnesota 55101 Appeal Board U.S. Nuclear Regulatory George Bruder, Esq.
Commission Bruder & Gentile Washington, D.C. 20555 1201 Connecticut Avenue, N.W.
Washington, D.C. 20036 Dr. W. Reed Johnson Atomic Safety and Licensing Alan Wolf, Esq.
Appeal Board Federal Energy Regulatory U.S. Nuclear Regulatory Commission Commission 825 North Capitol Street, N.E.
Washington, D.C. 20555 Washington, D.C. 20426 Northern States Power Company Kenneth F. Plumb Attn: Mr. Arthur Dienhart Secretary V. Pres. - Engineering Federal Energy Regulatory 414 Nicollet hall Commission Minneapolis, MN 55401 825 North Capitol Street, N.E.
Washington, D.C. 20426 Samuel J. Chilk, Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 -
November 13, 1980 jr N f3 wen Michael Adragna l l