ML19344D879
| ML19344D879 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 08/20/1980 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | Frankhauser D FRANKHAUSER, D.D. |
| References | |
| ISSUANCES-OL, LBP-80-24, NUDOCS 8008260240 | |
| Download: ML19344D879 (14) | |
Text
LBP-80-24 UNITED STATES OF AMERICA T<
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5 NUCLEAR REGULATORY COMMISSION 4/jg E L.
g ATOMIC SAFETY AND LICENSING BOARD l ryg Charles Bechhoefer, Chairman
.hk 7
Dr. Frank F. Hooper Glenn 0. Bright In the Matter of CINCINNATI GAS & ELECTRIC Docket No. 50-358 OL COMPANY, ET AL.
(William H. Zimaer Nuclear Station)
M RANDUM AND ORDER DENYING MOTION TO ADMIT ADDITIONAL CONTENTIONS (August 20, 1980)
On July 16, 1980, Dr. David Fankhauser, an intervenor in this operating license proceeding, filed a motion to admit additional contentions.
On July 31, 1980 and August 5, 1980, the Applicants and NRC Staff, respectively, filed responses in opposition to the motion.
By a filing dated August.7,1980, ZAC-ZACK, another intervenor, supported Dr. Fankhauser's motion.1/
For reasons set forth below, we deny the motion.
This denial is without prejudice, however, to Dr. Fankhauser's seeking to become a co-sponsor with the Miami Valley Power Project (MVPP) of existing Contention 13, under certain circumstances which we hereafter spell out.
IIIn accordance with the NRC Rules of Practice, the ZAC-ZACK response should have been filed by July 31, 1980.
See 10 CFR 882.730(c), 2.710.
We thus could reject it as untimely.
l Because we are reluctant to take a position which may preclude litigation of safety or environmental issues relevant to this facility without giving every party an opportunity to be heard, we have considered the ZAC-ZACK filing in reaching our decision on Dr. Fankhauser's motion.
We caution ZAC-ZACK, however, that it is expected to abide by applicable time limits.
If it needs additional time, it can file a motion requesting an extension of time.
See 10 CFR 82.711.
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8 008260 Qyo S 0//
A.
This proceeding commenced in 1975, and Dr. Fankhauser has been a party from its outset.
In considering his newly proposed contentions, however, we must be guided by the Commission's rules governing late-filed contentions.
10 CFR 252.714(a)(1) and (b).
Before turning to whether Dr. Fankhauser has furnished an adequate excuse for his tardy filing, however, we will first discuss whether his contentions are acceptable as contentions.
For if they are not, it matters not whether they were timely filed.
Dr. Fankhauser has advanced two contentions, the first of which is subdivided into three parts which, in effect, are separate claims.
We set them forth in the margin.2/
2/ rooosed contentions:
1.
The economic costs of the Zimmer Power P
Station (hereinafter Zimmer) do not justify the granting of an operating license to Applicants because:
(a) the construction, operation maintenance and decommis-sioning costs of Zimmer are too high, and are beyond the financial capability of the Applicants; (b) as a result of the excessive construction, operation, l
and decommissioning costs of Zimmer, a substantial percentage of the residential customers in the Applicants' service areas will be financially unable to afford to purchase necessary electric service from the Applicants as a result of the costs of Zimmer being passed to the Applicants' customers through Applicants' rate bases; and (c) the need does not exist for the po.tential energy from Zimmer as originally projected through anticipated growth in the Applicants' peak demand in their respective service areas; 2.
The data used in the benefit-cost analysis of the Final Environmental Statement (NUREG-0265, 1977) related to the Opera-i tion of Zimmer is significantly incorrect and in need of revision which therefore undermines the entire benefit-cost analysis of Zimmer.
Some of the incecreet data used in NURE'G-0265 include:
the estimated capital costs of Zimmer $470 l
1.
As can be seen, the first portion of proposed Contention 1(a) and proposed Contention 1(b) in its entirety relate solely to the reasonableness of the economic costs of the facility.
They assert that these costs are "too high" and that consumers will be unable to afford electricity from the plant.
Dr. Fankhauser points to recently increased plant cost estimates and asserts that the reasonableness of such costs should be analyzed by us during our consideration of whether to authorize an operating license.
We disagree.
It is well settled that NRC's regula-tory authority over purely economic matters of this sort is strictly limited.
Once need for power has been established, economic cost may be considered, aside from antitrust questions, only in ter=s of the Applicants' financial qualifications and as an element in the svaluation of alternatives which must be undertaken during the envi-ronmental review of the facility.
In that regard, as the Staff observes, 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 otherwise producing the power."
We regard the Appeal Board's ruling in Consumers Power Co. (Midland Plant, Units 1 and 2),
(Footnote No. 2 Continued) million in 1977 (now estimated by the Applicants to be approxi-mately one billion dollars); the 1977 expected plant capacity of 607.; the estimated $430 million fuel costs and the $130 =illion l
operation and maintenance costs; the deco =missioning costs of
$85 million at 1979 cost levels; the estimated 79 person operating force; and the analysis that no significant economic or social costs are expected from operation of Zic=er (the occurrence and analysis of the event at the power station at Three Mile Island suggest that both economic and social costs can be expected frem l
operation of Zinner).
Inis Board should not issue an operating l
license until such time that a benefit-cost analysis is performed l
and reviewed using accurate data that is presently or will be available.
ALAB-458, 7 NRC '155 (1978) (cited both by the Applicants and the Staff) as dispositive of the admissibility of Contention 1(b) and the portion of Contention 1(a) dealing with the reasonable-ness of costs, and we confine our discussion of why we cannot accept those contentions to a recitation of the relevant passage from that decision:
In the Atomic Energy Act, Congress did not cake this agency responsible for assessing whether a proposed nuclear plant would be the most financially advantageous way for a utility to satisfy its customers need for Such matters remained the province of the utility power.
and its supervising State regulatory commission.
Anti-issues to one side, our involvement in financial trust matters was li=ited to determining whether, if we license the plant, the company will be able te build and then to operate it without ce= pro =ising safety because of pressing financial needs.
The passage of the National Environ = ental Policy Act increased our concern with the economics of nuclear power plants, but only in a limited way.
That Act requires us to consider whether there are environ =en-tally preferable alternatives to the proposal oefore us.
If there are, we must take the steps we can to see that they are imple=ented if that can be acco=plished at a reasonable cost; i.e.. one not out of proportion to the environmental advantages to be gained.
But if there are no preferable environ = ental alternatives, such cost-benefit balancing does n'ot take place.
Manifestly, nothing in NEPA calls upon us to sift through environ-mentally inferior alternatives to find a cheaper (but dirtier) way of handling the catter at hand.
In the sche =e of things, we leave such matters to the business judg=ent of the utility companies and to the wisde= of the State regulatory agencies responsible for scrutiniz-ing the purely econc=ic aspects of proposals to build new generating facilities.
In short, as far as NEPA is concerned, cost is important only to the extent it re-suits in an environmentally superior alternative.
If the " cure" is worse than the disease, that it is cheap is hardly i=pressive.
, s 1
7 NRC at 162-63 (footnotes omitted).
See also Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),
CLI-76-27, 4 NRC 610, 614 (1976); Northern States Power Co.
(Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 862 (1974); Illinois Power Co. (Clinton Power Station, Units 1 and 2), ALAB-340, 4 NRC 27, 48 (1976).
2.
Most of Contention 2 may be rejected on similar 1
grounds.
It seeks to have a new cost-benefit analysis performed for this plant because of " incorrect data" assertedly used in the original cost-benefit analysis (which appears in the Final Environ-mental Statemeng NUREG-0265, dated June, 1977).2!
The data in question, however, for the most part appear to be largely economic.
Although economic data are an element in the cost-benefit balance, they relate to specific sites, facilities, or equipment, and their environmental advantages and disadvantages.
Thus environmental factors are the foundation of such an analysis.
But those factors play little, if any, role in the request before us to admit the new Contention 2.
For that reason, the contention raises matters which are inappropriate for us to adjudicate.b/
EINone of the admitted contentions raises any question about this cost-benefit analysis.
In these circumstances, the final balance would not normally be performed by this Board but would be left to the Staff.
10 CFR gg2.760a, 51.26(a), 51.52(b)(2).
blTo the extent the contention attempts to raise the issue of the social costs of the Three Mile Island accident, we would be authorized to entertain it.
But as we shall see, the proposed contention fails to satisfy several of the lateness criteria of 10 CFR H2.714(a).
See pp. 8-12, infra.
' 3.
Contention 1(c) is unacceptable for yet another reason.
Need for power, the subject of this contention, was one of the environmental issues considered by the Licensing Board during the construction permit hearings.
LBP-72-27, 5 AEC 133, 137, affir=ed, ALAB-84, 5 AEC 372 (1972).
In contrast to ssfety issues, environmental issues which have been considered during the construction permit proceeding are normally only reconsidered at the operating license stage upon a showing of significant-changed circumstances.
10 CFR 8851.21, 51.23(e).
This is in recognition of the obvious fact that issues such as need for power are more appropriately considered before a plant has been built.
Thus, before a need-for-power issue can be accepted at the oper-ating license stage (assuming the question was previously con-sidered during the construction permit review), there =ust be "a strong showing * *
- that * * * [the issue] had not previously been adequately considered or [that there exists] significant new information which had developed after the cons truction permit review."
Pennsvivania Power & Licht Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC 291, 303-04 (1979), quoting from Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 86 (1979).
The Co= mis-sion itself has erected a high threshold for infor=ation which could serve to justify reconsideration of need for power.
Carolina Po:eer and Licht Co. (Shearon Harris Nuclear Power Plant, Units 1-4),
Dr. Fankhauser has not made the requisite showing for us to accept a new need-for-power conten-tion--indeed, he provides no information at all why need for power should be relitigated at this time.
His naked claim to that effect clearly is insufficient.
For that reason, proposed Con-tention 1(c) must be rejected without regard to its timeliness.El B.
As we have seen, proposed Contentions 1(a), 1(b) and 2, to the extent they seek to question the economic reasonableness of the ZLmmer project, are before the wrong forum.
Proposed Contention 1(c) does not include adequate facts to justify our acceptance of a contention of that type.
We accordingly have rejected these contentions without regard to their timeliness.
On the other hand, Contention 1(a), to the extent it challenges the " financial capability" of the Applicants to operate, maintain and decommission the Zimmer facility, and Contention 2, to the extent it seeks to litigate the social costs of the Three Mile Island (TMI) accident as an element of the cost-benefit l
balance, raise questions which may properly be adjudicated in a l
proceeding of this type.
As noted earlier, however, acceptance of these contentions is dependent upon a balancing of the factors set forth in 10 CFR 62.714(a)(1)(i)-(v).
These factors are:
l 5! alancing the factors in 10 CFR 82.714(a) (1) would also require B
rejection of this contention.
See, in particular, pp. 10-12, intra.
i l
1
(i)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the petitioner's interest will be protected.
(iii)
The extent to which the petitioner's participation =ay reasonably be expected to assist in developing a sound record.
(iv)
The extent to which the petitioner's interest will be represented by existing parties.
(v)
The extent to which the petitioner's partici-pation will broaden the issues or delay the proceeding.
As the Staff points out, Dr. Fankhauser has =ade no effort to address the substance of these require =ents.
In this regard alone, his =otion could be dee=ed fatally defective.
See Nuclear Fuel Services (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975).
Nonetheless, interspersed throughout Dr. Fankhauser's cotion are a nu=ber of state =ents which =ight be viewed as rele-vant to one or = ore of the five factors.
We will address each factor with these state =ents in =ind.
1.
To excuse his lateness, Dr. Fankhauser cites newly developing information.
As we acknowledged in our Me=orandu= and Order of April 22, 1980, LBP-80-14, 11 NRC 570, 574, the availa-bility of new infor=ation appearing in previously unavailable documents has long been recognized as a valid excuse for late-filed contentions.
Dr. Fankhauser alludes to Lafor=ation on cost increases for the facility which became available in May, 1980, further operating cost increases (as yet unspecified) which could result frca new regulatory requirements, and information concerning the social costs of the TMI accident, which presu= ably beca=e available some time after the occurence of that accident in March, 1979.
We conclude that the economic costs revealed in May, 1980 constitute new information with respect to the financial-qualifications aspect of proposed Contention 1(a) and that Dr. Fankhauser has therefore demonstrated " good cause" for his failure to advance a financial-qualifications contention at an earlier date.
We also conclude that he has provided no good excuse for his delay of some 16 months after the TMI accident in attempting to raise the social costs of the accident and, accord-ingly, that he has not shown " good cause" for the late sub=ission of that part of Contention 2.
2.
The presence or absence of " good cause" for delay is not conclusive with respect to the acceptability of a late-filed contention, but a party seeking to introduce such a contention without an adequate excuse for lateness bears a =uch heavier burden than a party with an adequate excuse.
West Valley, CLI-75-4, suora, 1 NRC at 275.
Dr. Fankhauser therefore bears a much heavier burden with respect to Contention 2 (social effects of the TMI accident) than with respect to Contention 1 (financial qualifica-tions).
Turning to the second factor, it is likely that this proceeding is the best (if not the only) forum for litigation of both of these issues.
This factor would thus be balanced in Dr. Fankhauser's favor with respect to each of these contentions.
. 3.
One of the most important factors, in our view, is Dr. Fankhauser's ability to contribute to the development of a sound record.
He claims that his long involvement in this pro-ceeding perforce will produce that result.
We agree with the Applicants and Staff, however, that Dr. Fankhauser must show how his participation would assist in developing a sound record on the particular issues in question and that he has failed to do Absent his supplying further information of the type we later so.
describe, we balance this factor against admission of any of the proposed contentions.
4 Dr. Fankhauser recognizes that Miami Valley Power Pro-j ect's Contention 13 puts into issue the Applicants' financial quali-fications (and, in addition, that MVPP's Contention 11 raised the need-for-power issue).5I But he claims that it is " questionable whether MVPP will vigorously litigate these contentions" and that the scope of the proposed contentions is broader than that of MVPP's contentions.
We have already held that the broader scope (which questions the ability of consumers to afford power produced by the facility) is beyond the permissible scope of this hearing, and that Dr. Fankhauser has not advanced adequate information to justify a need-for-power contention.
Moreover, as the Applicants correctly point out, the asserted lack of vigor of >W7P's advocacy of similar issues (without any further specification) constitutes neither an excuse for the tardy filing nor a showing that one's interest will not be adequately protected by existing 5! e fails to mention that we have already granted summary dispo-H sition of Contention 11.
See our Prehearing Conference Order dated June 4, 1979 (unpublished).
, parties.
Fucer Scund Power & Lizh Co. (Skagt: Nuclear ?cwer Preiect, Units 1 and 2), ALA3-559, 10 NRC 162, 173 (1979), _i_d.,
ALA3-552, 10 NRC 1, 7-9 (1979); Pacific Gas and Elec:rie Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), /LA3-583,
~/
11 NRC C47, 648 (1980).1 For these reasens, with respect :o pro-posed Contentien 1(a) (to the extent it involves financial quali-ficaricus), we find that Dr. Fankhauser has =ade ne showing that his interests are not bein- (cr have net been) adequatelv.
s represented by MV??.$/
3ecause there is no issue ce= parable ::
Contentica 2, this factor would be balanced in Dr. Fankhauser's favor for that centention.
But because the Staff is ner: ally responsible for undertaking the cest-benefi: balance in an cperating license proceeding, and because we have no reason :0 questica tha: the Staff will adequately perfor= this function (giving regard to new infor:ation where appropriate), we accord relatively little weight to this facecr with rebard Oc Contentica 2.
5.
As for the last facecr, it is clear : hat ad=ission of proposed Cententica 2 would result in delay, since no ec= parable issue has been accepted in this proceeding.
Cen:entica 1(a) (:0 the extent it challenges the Applican:s' financial cualificatiens) essentially duplicates existing Centention 13, which has not ye:
7/
- We note that, with respect :o the dis =issed Cententien 11, Dr. Fankhauser filed no response to the Applican:s' =cticn for s unnarv. diso. csitica of that cententien.
^/ ere we balancing this facecr with respect to preposed I W Contentien 1(c), we would reach a si=ilar cenclusion.
. been heard by us.
The Applicants claim that delay would nonethe-less result, by virtue of additional pleadings, prehearing conferences, and evidentiary hearings.
On the other hand, ZAC-ZACK suggests that we could consolidate Dr. Fankhauser's cententions with similar contentions of MVPP.
In our view, any delay would be minimal, since, if Contention 1(a) were admitted (to the extent it deals with financial qualifications), it would be consolidated with Contention 13 and Dr. Fankhauser would be required "to take the proceeding as (he] finds it."
West Vallev, CLI-75-4, suora, 1 NRC at 276.
Thus, ve balance this factor in Dr. Fankhauser's favor only with respect to Contention 1(a) (to the extent it questions the Applicants' financial qualifications).EI 6.
In sum, factors i, 11 and v would seem to balance in favor of accepting proposed Contention 1(a) (to the extent it raises a financial qualifications issue).
Factors 11 and iv (but only to a limited extent) balance in favor of accepting Contention 2 (insofar as it seeks to deal with the social costs of the TMI accident).
Although the factors clearly balance against admis-sion of Contention 2, we might be inclined to accept Contention 1(a) if we were convinced that doing so would make a significant AIWere we required to consider these factors with respect to proposed Contention 1(c), we would balance this factor against accepting the contention.
Acceptance of that contention would clearly result in delay, inasmuch we have already dismissed MVPP's similar Contention 11.
-. contribution to the record on that issue.
Dr. Fankhauser has =ade no showing to that effect.
For that reason alone, we decline to accept the financial qualifications portion of Contention 1(a).
C.
Notwithstanding the foregoing ruling on the financial qualifications pcreion of proposed Contention 1(a), we recognize the public interest in developing a sound record on issues ad=itted Should MVPP's Contention 13 go to hearing,10/
into controversy.
we would be prepared to consider Dr. Fankhauser a ec-sponsor of that contention, and to permit hi= to file evidence-in-chief, if he were to demonstrate that he has testimony to sponsor which could serve to create a = ore complete record.11/
If Dr. Fankhauser desires to present a witness or witnesses on Contention 13, he =ust advise the Board and parties of that fact and of the substance of the proposed testimony.
He should do so within 15 days after service on hi= of the Staff's SER Supple =ent dealing with financial qualifications.
If we determine (after ascertaining the views of other parties) to permit Dr. Fankhauser ISIThe Applicants have =oved for su==ary disposition o f Contention 13, based on MVPP's default in responding to discovery.
We do not intend to rule on that =otion until we have received the Staff's SER Supplement dealing with the Applicants' financial qualifications.
11! n any event, Dr. Fankhauser has the right to cross-examine I
witnesses presented by other parties on Contention 13, as well as other issues.
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAS-244, 8 AEC 857, 864-69 (1974); reconsideration denied, ALA3-252, 8 AEC 1175; affirmed, CLI-75-1, 1 NRC 1 (1975).
to become a co-sponsor of Contention 13, we will afford the Applicants and Staff sufficient time prior to hearing to conduct discovery of Dr. Fankhauser's proposed witness or witnesses (if they wish to do so).
For the foregoing reasons, Dr. Fankhauser's motion to admit additional contentions is denied, but without prejudice to Dr. Fankhauser's seeking to become a co-sponsor of MVPP's Contention 13, on the terms provided herein.
FOR THE ATOMIC SAFETY AND LICENSING BOARD b:.b v behx w Charles Bechhoefer, ChaTrman Dated at Bethesda, Maryland, this 20th day of August 1980.