ML19343C856
| ML19343C856 | |
| Person / Time | |
|---|---|
| Site: | Perkins  |
| Issue date: | 03/20/1981 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| LBP-80-9, NUDOCS 8103250436 | |
| Download: ML19343C856 (9) | |
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UNITED STATES OF AMERICA 2 7g g NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD pl @
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Administrative Judges:
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Alan S. Rosenthal, Chairman ga Dr. John H. Buck Mt.R 23jggj y.
Thomas S. Moore s
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DUKE POWER COMPANY
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Docket Nos. STN 50-488
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50-489 (Perkins Nuclear Station, Units 1,
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50-490 2 and 3)
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for the applicant, Duke Power Company.
f,g M'N.N Mr. William L.
Porter, Charlotte, North CarolinaOs
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Mr. William G.
Pfefferkorn, Winston-Salem, No o.\\ g r
,b Carolina, for the intervenors, Mary Apperso O
- [,,s Davis et al.
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',d' Turk for the Nuclear Regulatory \\ A,,5
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f Mr. Sherwin E.
Commission staff.
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1 MEMORANDUM
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March 20, 1981
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A.
Before this Board is the appeal of intervenors Mary Apperson Davis and the Yadkin River Committee from the February 22, 1980 partial initial decision rendered by the Licensing Board in this con-struction permit proceeding.
LBP-80-9, 11'NRC 310.
That decision addressed primarily the question whether there is an alternate site
..Jor the location of the Perkins facility which is obviously superior
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Although the Board answered that question in the negative, the result was not the authorization of construction D.So3 s
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. permits.
This was because there then remained -- and indeed still remain-- other issues to be heard and decided.
For reasons not of present moment, the briefing of the inter-venors' appeal was deferred by us for a considerable period.
As a consequence, the last brief -- that of the NRC staff -- was not filed until January 12, 1981.
Upon receiving the brief, we calen-dared the appeal for argument on February 18, 1981.
Thereafter, on the applicant's motion, the argument was postponed to April 1, 1981.
In late February, it came to our attention that the applicant had announced publicly that it was delaying indefinitely the com-pletion of its three-unit Cherokee nuclear facility.
That facility had obtained limited work authorizations in 1976 and construction permits at the end of the following year.
In a newspaper article referring to the announcement, a named official of the applicant was quoted as stating that, despite a $400 million investment to date in Units 1 and 2 of the facility, no determination had as yet been made respecting whether either unit would be completed.
In this connection, the official was said to have observed that "the point of no return" had not been passed.1/
This development. raised serious doubt in our mind as to the applicant's intentions with regard to the proposed Perkins facility.
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Wall Street Journal, February 25, 1981, at p. 16.
The article made no mention of the Perkins facility.
. More specifically, there was at least reason to question whether, given the indefinite deferral and possible abandonment of a facil-ity (Cherokee) in which considerable sums had already been invested for construction purposes, the applicant retained a serious intent to move forward with another facility (Perkins) which is yet to receive any construction authority.
By letter dated February 25, the Secretary to this Board di-rected the applicant's attention to our concern.
The letter indi-cated that we were "most reluctant" to expend unnecessarily the time and resources of either ourselves or the parties to the appeal.
Accordingly, the applicant was directed to advise us in writing as to the current status of its plans respecting the Perkins facility.
In the event that the f acility was reported to be in a state of indefinite suspension, the applicant was additionally to inform us of the reasons, if any, why it believed the appeal should nonethe-less be heard at this time.
In this regard, the applicant's atten-tion was called to Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-277, 1 NRC 539 (1975).
We asked that its response specifically " address whether (assuming their affirmance on the pending appeal), the factual findings made by the Licensing Board on the alternate site issue determined in the partial initial decision would likely retain their validity over an extended period of time".
Letter, p.
2.
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The applicant responded in a March 10 letter signed by its P
f Associate General Counsel.
We were told (at p. 1) that the Perkins facility is "at the present time unscheduled, although the need for additional generation c'apabilities in~ the 1990 's is evident".
Ac-cording to counsel, the applicant is committed to continuing con-struction programs as soon as sufficient funds can be reasonably obtained".
The decision to defer completion of the Cherokee facil-ity -- assertedly necessitated by a number of unfavorable economic factors -- was represented as not carrying with it any implication i
that Perkins had been cancelled.
On this foundation, counsel then proceeded to discuss why, in the applicant's judgment, the appeal
- should be now heard.
Among the assigned reasons' was that:
There is a high degree - [of likelihood].that the findings (made by the Licensing Board if affirmed on appeal] will retain their validity.
The pas-sage of time will not alter meteorology, seismol-
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ogy,-geology and all the other criteria which are included in site suitability and alternative sites.
These are essentially fixed.
Id. at p.
3.
As authorized by us, both the intervenors and the NRC staff replied, on March 16 and 17 respectively.
The intervenors main-1 tained that, in the circumstances the construction permit applica-tion was a fit candidate for outright dismissal subject to renewal at some future date should the applicant decide to commit itself to a definite construction schedule.
Beyond that, intervenors insisted i
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. that, contrary to the applicant's implicit claim, there was not a high degree of likelihood that the Licensing Board's findings on the question of cooling water adequacy would retain their validity over a period of years.
(As the intervenors correctly pointed out, the appeal is primarily directed to that question.)
For its part, the staff's reply discussed all of the factors thought to bear on the matter and reached the conclusion (at p. 7) that "[o]n balance,
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- there is some advantage in going forward with the appeal at this tim.e".
In the course of its analysis, the staf f observed that any decision which may be made by the Appeal Board on the alternate sites issue could conceivably lose its validity before the Applicant determines whether or not it intends to construct the Perkins facility, and before the construction permits are issued.
Of course, the Staff cannot say that such a result is likely; rather, the Staff states'enly that such a result is possible.
For these reasons, the ' staff cannot say with certainty whether this factor weighs in favor of or against a deferral of the pending appeal.
Id._at p. 5.
3.
Notwithstanding the intervenors' implicit invitation to do so, we do not consider.now whether the present status of the pro-posal to build the Perkins facility might warrant a dismissal of the
, construction permit application.
That question need not be reached in the resolution of the much narrower question ~which we raised on our own initiative:
whether the pending appeal should be heard and decided even though substantial uncertainty exists as to when (if s
. at all) the applicant might construct the facility if given au-thorization to do so.
Even as thus confined in scope, the question is not free from difficulty.
True, as the applicant stresses, the situation at hand does not precisely parallel that in Douglas Point, supra.
The an-nounced postponement of construction and operation of the proposed plant involved in that case took place prior to the holding of any eviden-tiary hearings on the construction permit application.
Here, in contrast, the evidentiary hearings (at least on the alternate site issue) have been concluded; a decision by the trier of fact has been rendered; and all that thus remains is the argument and deter-mination' of a briefed appeal from that decision. 2/
But it scarcely follows that the criteria established in Douglas Point for use in 1
- the scheduling of. further adjudicatory action with respect to a de-ferred plant (see 1 NRC at 547) do not come into play.
Albeit. no t nearly to the same extent as a full-scale evidentiary hearing on a wide' variety of sharply contested safety and environmental issues, the argument and disposition.of an appeal from an initial decision
- t does require the consumption of resources both within and without the Commission.
And where, as in this instance, the appeal raises numerous substantive and procedural questions in the context of an b
extended hearing below and~a partial initial decision covering some 1
25 Lprinted pages in the official NRC reports, the resource ' expendi-turelmight well prove consequential.
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On' the 'other hand, acl announced the Douglas Point' d.ferral 2
was for'a spe'cified period (five years in terms of plant
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operation) rather than of. indefinite duration.
See 1 NRC
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at 542-43.
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. As requires no extended discussion, there io a clear public interest to be served in insuring that the time and effort of Com-mission officials and employees -- including the members of its adjudicatory panels -- is well-spent.
If anything, this is more apparent today than ever before.
We can officially notice the concern of the Commission regarding, most particularly, the prog-ress of licensing action on those nuclear plants which are either fully built or near completion. 1/
This concern has prompted a fresh and more intensified look into the matter of allocation of personnel resources.
It was with these considerations in mind that we asked the applicant to focus on the Douglas Point criteria -- with special emphasis-on the degree of likelihood that any findings now made on the. alternate site question would retain their validity years hence.
Regrettably, in its response the applicant was most un-helpful on that score.
It may well be right that the " passage of f
time will not alter [the] meteorology, seismology (and] geology" of the competing sites.
See p. 4, supra.
But thut is quite be-l side _the point for present purposes.
Once again, the appeal is centered on the water supply adequacy issue.
That issue is.not even alluded to in the applicant's response.
We consequently are l.
.left in_the dark respecting the basis for the applicant's confidence i.
f 3/. One such plant is owned by' this very applicant.
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. (not shared by the intervenors or the staff) that any water ade-quacy conclusions which we might reach on the appeal will not re-quire crucial alteration in five or ten years.
C.
Although, for the foregoing reasons, the question is a close one, we have decided to allow the argument to proceed as now scheduled.
The decisive factors are these:
(1) it is not possible to make a sufficient.ly informed assessment of the degree of likeli-hood that the water adequacy situation in the relevant areas will or will-not be materially different at such time as the applicant
- might elect to proceed with the Perkins facility; (2) should the intervenors' claims on their appeal prevail, future wasteful ex-penditures of the applicant's time and money might be obviated (see Douglas Point, 1 NRC at 546); (3) compared to their invest-ment to.date in the adjudication of the alternate site issue, the further expense which will be incurred by.the parties in preparing for and presenting oral argument is relatively small; and (4) this Board's. current docket will accommodate the hearing and disposition of this appeal without impeding the progress of other appeals of greater urgency. 4/
We wish to stress, however, that our action on this occasion is not to be taken as a precedent.
There is every reason to be-lieve that the caseload of the appeal boards will be significantly
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Obviously, the decision on the appeal will be assigned a-low order of priority.
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. increased over the course of the next year.
With that increase, we perforce will have to concentrate our attention on those pr.
ceedings which involve reactors which are either in existence or are proposed to be built on a definite schedule.
Appeals in pro-ceedings on construction permit applications for reactors which have been indefinitely deferred -- and may well never be built at all'-- will have to take a back seat.
FOR THE APPEAL BOARD b.
dM C. Je(p Bishop
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Secretary to the Appeal' Board u
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