ML19341C907
| ML19341C907 | |
| Person / Time | |
|---|---|
| Site: | 05000463, 05000464 |
| Issue date: | 02/27/1981 |
| From: | Clark H Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-CP, NUDOCS 8103040469 | |
| Download: ML19341C907 (9) | |
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,Q Before Administrative Judges:
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W((,I Hugh K. Clark, Chairman g
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Dr. Donald P. de Sylva G
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Docket Nos. 50-463-CP In the Matter of 50-464-CP PHILADELPHIA ELECTRIC COMPANY (Application for Construction
- 7 (Fulton Generating Station, Units 1 and 2)
February '27, 1981
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DECISION AND ORDER (Dismissing Proceeding with Prejudice)
By letter dated December 5, 1980, to the Director, Officc. of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commi3sion, the Applicant sought to withdraw the above-identified application for construction permits, including its request for an adjudicatory early site suitability review (hereinafter called "Early Site Review"). Also on December 5, 1980. Applicant filed a motion requesting that this Board, pursuant to 10 C.F.R. $ 2.107(a), permit the withdrawal of the"Fulton Application for construction permits and tha the proceeding be terminated as moot.
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By pleading dated December 17, 1980, the Intervenors supported the withdrawal of tl.e application and the termination of this pro-ceeding.
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4 The NRC Staff responded, December 24, 1980. The Staff pointed i
out that, while the application was filed July 3, 1973, there have been no hearings held and no authorization for site work has been 1
issued. Since no site work has been performed, redress of the site is not required, and no conditions need be attached for permission i
to withdraw the application.
i On the basis of the above, it would appear that Appli. cant's request should be granted as a matter of course.
There is, however, a problem. Applicant requested dismissal "without prejudice", and l
the Intervenors urged that the proceeding be dismissed "with prejudice".
In its response to the Intervenors' position, Applicant, by pleading dated January 22, 1981, argued that:
"... each of Applicant's acts referred to by Intervenors was =erely consistent with good I'
faith prosecution of a properly filed appli-cation....
Similarly, the adaptation of the project to an Early Site Review in early 1979... was perfectly proper under the Com-mission's regulations."
i The Applicant's reactor supplier stopped work on the project in 1975, and thenceforth it has-been clear that the reactors described in the application would not be built. The review of the application I
was suspended pending a decision by Applicant as to whether or not to proceed with the construction of a nuclear facility of a differ-i ent design on the same site.
f About one-third of the proposed site is privately owned. The Intervenors represent the cwners of this land and others situated 1
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I nearby. They allege that the uncertainties as to the ultimate use of the proposed site have worked a hardship upon them, causing per-sonal anxietics and preventing optimum uses of the land or sale a
1 thereof.
They, and their representatives in Congress, have repeat-edly complained to the Commission concerning the uncertainty which r
l they endured.
It is true that a prompt dismissal of the application 1
after the events of 1975 would not have prevented a later, filing of an application by Applicant or by others for construction permits using the same site. This possibility is always present at all t
f sites throughout the nation and is so vague and nebulous as not to present the proble=s w'.tich the Intervenors - have encountere'd.
t By letter, datr.d January 30, 1978, the Staff advised Applicant (the Staff) vculd file a motion to terminate the suspende'd that it I
proceeding in the absence of " firm plans for early use of the Fulton site."
Applicant responded by letter of March 8, 1978, stating, i
"... it is our intention to file with the Commission lj by the end of this year an amendment to the construc-tion permit application for an adjudicatory Early Site' Review of the Fulton Site."
4 The Staf f construed this to mean that Applicant had " firm plans for early use of the Fulton Site."
This is evidenced by the Staff I
response to a letter from Congressman Robert S. Walker to Chairman I
Hendr1.e dated July 7, 1978, expressing concern about the continuing f
' uncertainty over Applicant's intentions regarding the Fulton site.
' The response, dated August 11, 1978, states in part:
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O "... the NRC staff decided not to file a =otion to terminate the construction proceeding. This decision was based on our view that Philadelphia Power Company intends to use the Fulton site for a power plant...."
As required by the Board, Applicant filed monthly statements as to the status of the Fulton application during the period from i
December 1975 to December 1978.
By letter dated January 16, 1979, Applicant advised the Board of the filing on December 29, 1978, of its Amendment 32 to the application requesting an Early Site Review. This letter stated in part:
"Since the Fulton construction permit application has now returned to the usual licensing path, we believe that the function of the interim monthly status reports has been fulfilling and that further such letters would not serve an independent useful i
purpose."
The Board accepted this statement as meaning that the Applicant i-j had decided to proceed with the construction of nuclear generating 1
l facilities at the site. The inferences of the Staff and the Board 1
that Applicant had a firm plan to contruct nuclear facilities on 4
j the site were based primarily on the assumption that Applicant's l
request for Early Site Review would meet both the form and the sub-i stance of the pertinent regulations (10 CFR 5 2.600, et,sec.).
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The purpose of the Early Site Review is to expedite the licens-ing process.
Its use is based on the anticipation that plans are a
under way for the filing of the remaining part of a construction 1
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permit application.
The Statement of Consideration concerning I
Early Site Reviews states in part:
1 "The effective rules... do not provide for issu-ance of a partial decision by an atomic safety and licensing board on these issues unless the request for review was made in the context of a person proposing to construct a nuclear facility."
(42 FR 22862 published May 5,1977.]
The Statement of Consideration goes on to mention situations where, 1
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because of economic or financial reasons, construction of nuclear plants is postponed. Here the statement is made that:
"It is the Commission's intent that the procedures for early review, hearing and partial decision on site suitability issues provided in these regula-tions for construction permit applicants shall be available to all qualified construction permit applicants, including applicants who did not request
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early review of site suitability issues at the time of their initial application but who later decide, following postponement of the target date for actual construction of the facility, that this procedure would be advantageous."
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An applicant has up to five years after the Early Site Review pro-t l
ceeding to file the remaining parts of its application for :on-I struction of nuclear facilities. While superficially this five-year i
period may encourage requests for Early Site Reviews by applicants who have no present intention to construct a nuclear facility, na such interpretation is justified in the light of the earlier quota-l tion above.
A mere desire for an Early Site Review in anticipation i
that a decision to use the site may be made at some future time t
l does not fall within the substance of the pertinent regulations.
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applicant who files a request for an Early Site Revicv tdile having full intention of building a nuclear facility on the site, may prop-erly reach a different decision thereafter in the light of new infor-mation. A request.for termination of the proceeding promptly made upon reaching the new decision carries no implication that the request i
for Early Site Review was improper. However, the Early Site Review J
is not available to an applicant who has no present intention to con-struct nuclear facilities on the site.
The period of time during which there has been no prosecution of this proceeding by Applicant, depends on whether or not the l
request for Early Site Review falls within both the form and the substance of the regulations. This, in turn, depends on the motives of the Applicant in filing such request.
In its letter of December 5, 1980, to the Staff, Applicant gives its reasons for withdrawal of its application thus:
"PE [ Applicant] has recently concluded that there are no longer signficant benefits to maintaining i
4 the Fulton application before the Co= mission.
This fact, plus the pendency of proposed regula-tions (45 Fed. Reg. 74493, November 10, 1980) which as proposed would impose substantial additional fee
-liability for applications withdrawn after they became effective, has induced PE to withdraw its application before the regulations' effective date."
This statement may imply that now, for the first time, Applicant has reached a decision as to whether or not to construct a nuclear plant
_ on the site.
It may imply, that, for economic reasons, a prior firm plan to construct a nuclear plant on the site is revoked.
Because of the above-noted ambiguity, a search of the record was made seeking evidence of Applicant's motives and decisions, if I
any. The search revealed no statement since 1975 by Applicant the it had a firm plan to construct nuclear facilities on the site.
On the contrary, a clear statement of Applicant's position was found in summary minutes of a meeting between Applicant and the Staff on May 11, 1978, the written minutes being dated May 24, 1978.
A copy of these minutes was sent to Mr. J. L. Everett, President, I
Philadelphia Electric Company, by letter dated May 31, 1978.
Since Applicant did not request alterations of the minutes, they were l
taken as accurate. The minutes state, in part:
i "In response to questions on whether PEC had j
already decided that the Fulton site is only suitable for nuclear units, and what type of plant would be constructed at the site, PEC
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stated that it was not clear that a nuclear unit would be put at the Fulton site, and that the type of plant would be decided in about i
1983. PEC noted their motivation to seek ESR and approval of the Fulton site because there is no abundance of suitable nuclear sites.
PEC additionally stated that it was clearly possible that the Fulton site could be utilized j.
for a gas cooled reactor, as contemplated in the original application. PEC also stated that it is possible that the Fulton site would be shared with another utility, in return for site i
sharing by others, to keep costs low.
Dr.
j Johnsrud noted that Pennsylvania does not pres-ently have a law -hich permits ' site banking'."
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Analysis of this passage reveals that:
(1) Applicant had reached no decision as to whether or not to use the Fulton site for a nuclear facility; (2) Applicant had reached no decision as to the type of facility it would construct, if it decided to use the site; (3) site banking was not permitted under Pennsylvania law; and (4) because of the scarcity of suitable sites Applicant's motive in seeking an Early Site Review was to =aintain the uncer-tainties as to possible use of the site until a decision should be reached at sone future time, possibly in 1983.
From our study of the record, we conclude that Applicant's
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request for an Early Site Review was for the purpose of preventing termination of this proceeding, and not for the purpose of expedit-ing it.
It does not conform to the substance of the pertinent j
regulations, and did not stop the running of the period of Appli-cant's suspension of prosecution of the proceeding.
In Summary:
We hold that Applicant's request for an Early Site Review is outside of the purpose and intent of the pertinent regulations.
We held there has been a period of suspension and uncertainty since 1975.
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We hold that the period of suspension is too long to justify f
a dismissal without prejudice. Accordingly this proceeding must be dismissed with prejudice.
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ORDER r
In view of the foregoing it is, this 27th day of February, I
- 1981, i
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' ORDERED, That the above-captioned proceeding be dismissed with pre-
- judice; and That the Staff be advised that the subject Application should be terminated, without conditions regarding site restoration.
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FOR THE ATOMIC SAFETY AND LICENSING BOARD j
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- Hugh K. Clark, Chairman ADMINISTRATIVE JUDGE l
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