ML20004E299
| ML20004E299 | |
| Person / Time | |
|---|---|
| Issue date: | 06/04/1981 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML20004E300 | List: |
| References | |
| REF-10CFR9.7, RULE-PR-51 SECY-81-208, SECY-81-317, SECY-81-317A, NUDOCS 8106110520 | |
| Download: ML20004E299 (35) | |
Text
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COMMISSION MEETING l
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PUBLIC MEETING DISCUSSION OF SECY-81-317 -
NEED FOR POWER RULE 4
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June _4, 1981
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Washington, D. C.
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UNITED STATES OF AMERICA 2
NUCLEAR REGULATORT C03HISSION 3
DISCUSSIO3 0F SECY-81-317 - NEED FOR POWER HULE 4
PUBLIC HEETING 5
6 Nuclear Regulatory Commission Room 1130 7
1717 H Street, N.W.
Washington, D. C.
8 Thursday, June 4,
1981 9
The Commission zet, pursuant to notice, at 2.05 to p.m.
11 BEFORE:
12 JOSEPH E. HENDRIE, Chairman of the Commission YICTOR GILINSKY, Consissioner 13 JOHN F. AREARNE, Consissioner PETER A. BRADFORD, Commissioner 14 ALSO PRESENT4 l
15 l
SAMUEL CHILK Secretary l
16 LEONARD BICKWIT, General Counsel WILLIAN PARLER 17 BRUCE BERSON DENNIS RATHBUN 18 DARREL NASH JER05E SALTZNAN 19 WAYNE KERF NARTIN NALSCH 20 21 22 23 24 25 l
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1 2 3 9.C E 5 D 1 E G S 2
(2s05 p.m.)
3 CHAIRMAN HENDRIE If the Committee would please 4 come to order.
5 We have this afternoon a discussion of SECY Paper 8 No.81-317, on the need -- on a possible change in the need 7 for power rules and the way in which the Commission deals 8 with those in its assorted proceedings.
The Commission has 9 asked the staff to prepare a paper along these lines and we 10 have the results of the staff's consideration before us.
11 And we also have an associated memorandum from General 12 Counsel, and we vill vant to discuss that as a part of the 13 matter.
14 Now, as a schedule matter, we also have an l
15 affirmation session this af ternoon, which was schedul.*' to l
16 come af ter our discussion on the need for power rule.
l 17 Conaissioner Gilinsky has an urgent matter that will take 18 his svar for a little while this af ternoon, and what I would 19 like to do is to get a sort of lead-in on the need for power 20 discussion, and then in the neighborhood of 2:25 or 2:30 I 21 would like to recess that discussion for a while, before Vic 22 has to leave, and take up the affirmation items.
Then we 23 vill return to the need for power discussion, and Vic will 24 be back later in the af ternoon.
25 So Bill, why don't'you lead off on the need for l
ALDERSCN REPCRT1NG COMPANY. INC.
400 VIRGINIA.WE S.W., WASHINGTCN. O.C. 20C24 (202) $$4 2345
3 1 power matter and I will find an appropriate place along in 2 15 or 20 minutes to recess.
3 HR. DIRCKSa I think we can lead off.
We won't 4 take very long.
He are making the proposition that we go 5 for a rulemaking to eliminate the need for power at the OL 6 stage.
Darrel Nash will mention a few points that we have, 7 and from what I gather there are many more points to be made 8 by General Counsel's Office, so they may take up the bulk of 9 the time.
10 And by the way, Bill Parler is prepared to discuss 11 the points that were raised in this meno.
Darrel, do you 12 vant to summarize briefly the points made in this paper?
13 HR. NASHs Okay.
I might just give a few words of 14 background to this issue for at least about a period of five 15 years that I was able to go back, that the staff has 16 communicated to the Commission through various sources that 17 there was a need to change the scope of review of need for 18 power and energy alternatives at the OL stage and in f act to 19 reduce the consideration at that point.
20 And recently we have had from the Commission 21 through SECY-81-69, which was the paper which requested us 22 to prepare this paper, and SECY-208 indicated that the 23 Commission is interested in considering the change of scope 24 of review of these issues at the OL stage.
25 The points that have been made in the staff 's ALCERSON REPCATING CCMPANY,INC, 400 VIRGINIA AVE., S.W WASHINGTCN. D.C. 20024 (202) 554 2345
to 1 papers, bringing them down to the narrow parts of it, is 2 tha; one of the first issues was that the analysis at the OL 3 stage should be forward-lookings and the second point made 4 was that our rules as they are stated, and indeau as the 5 licensing process is carried out, it becomes evident that it 6 is not at all clear that the f actors to consider at the OL 7 stage are any different from those at the CP stage.
8 At the CP stage the single most important issue is 9 the forecast of electricity growth some decade or more into to the future.
At the operating license stage the issue is 11 merely a matter of how operation of this plant compares to 12 operation of other alternatives to the applicant.
13 I would like to just list some of the contentions, 14 and I won't list then completely, but just tne nature of the 15 contentions that have been raised in OL cases that are 18 before the Commission or have been in the recent past.
17 COREISSIONER AHEARNE4 Are these contentions that 18 vere accepted?
19 NB. NASHa Yes.
20 Yery briefly, they relate to reserve margins, 21 conservation, growth rates in demand, appliance saturation, 22 the no plant alternative, building saa.uer. units, solar 23 energy as an alternative, comparative cost of generation, 24 cost of fuel and vaste uanagement and cogeneration.
25 So I think in looking at these contentions, also ALDEA$oN REPORTING COMPANY. INC.
400 vtRGINIA / VE S.W WASHINGTCN. D.C. 20024 (202) 554 2345
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1 in the way that the staff has treated it, although we are 2 revising our procedure somewhat in answer to the hearing 3 process, the same issues, the same analyses tenn to be 4 performed.
So it seems obvious that our rule as
,t nov 5 stands doesn't make it at all clear that there should be a 6 distinction between the CP and OL considerations.
7 Just briefly going into the paper as such, the 8 paper states that the issue for needs of power and 9 alternative energy sources are considered and resolved at to the CP stage.
At this point there is essentially no 11 environmental impact that has been made, nor has there. been 12 a great expenditure of funds.
So there are real 13 possibilities that another alternative could be selected.
14 At the OL stage, ths environmental damage has 15 essentially been done, all the costs of building the plant 16 have been incurred, and so the only thing that the. denial of 17 the license could do' is to prevent this completed plant from i
18 opera ting.
And we feel that it is extremely unlikely that 19 there would be any reason found for not granting the 20 operating license once it has been -- once the plant has 21 been built.
22 CORNISSIONEB AHEARNE:
Assuming that the safety 23 --
24 HR. NASH:
Yes, when I'm speaking, I'm speaking of 25 the issues here, the need for power and the alternative ALDER $CN REPORTING CCMPANY,INC.
400 VIRGINtA AVE. S.W WASHINGTCN. D.C. 20024 (20 3 554 2345
6 1 energy sources.
Now obviously I an in no position to 2 indicate something with regard to the safety aspects of the 3 plant, that may cause it to -- that may cause a license not 4 to be granted.
5 So theref ore, considering this extreme 6 unlike11 hood that denial of the license would occur, the 7 proposed rule is written such that these issues are to be 8 eliminated at the OL stage, except for the relief that is 9 available under 10 CFR 2.758.
So that is really, in very to brief form, what the background and the proposed rule are 11 all about.
12 CHAIRHAN HENDHIEs okay.
13 COHHISSIONEE AHEARNE:
Can I ask s couple of 14 questions on that?
15 CHAIRMAN HENDRIEs All right.
16 COHNISSIONER AHEABNE4 Darrel, you have in your 17 proposed rule, you say in the ops Aq summary, "This is to 18 provide for NEPA purposes need for power and alternative 19 energy sources will not be considered."
That led me to at 20 least infer that there are for other purposes that ther 21 could be censidered.
22 HR. NASH The reason for putting that in is-that 23 these are where the issues are handled now under Part 51.
COHNISSIONER AaEAsNE:
I understand that.
But was E_
24 25 not the intent to provide that need for power and ALCERSCN REPCRTING CCMPANY,INC, 400 %1RGINIA AVE., S.W., WASHINGTCN. 0.C. 20024 (202) 554-2345
1 l
o 7
1 alternative energy sources will not be considered in l
2 operating license proceedings?
I 3
HR. NASH:
It was to eliminate the consideration 4 of them, and not to restrict it to NEPA, but just to 5 designate that that is where they are handled.
(
6 COMHISSIONER AHEARNE4 So the phrase "for NEPA i
7 purposes" --
8 NR. NASH That is in a sense superfluous.
9 CONNISSION ER AHEARNEs That was really my 10 question.
Other than your value impact analysis -- you have 11 in the opening sentence, "NRC staff has completed a 12 comprehensive review."
Is that a written comprehensive 13 review?
14 HR. NASH:
The review -- perhaps putting it in the 15 singular is not as clear as it could be, but there have been
]
16 at least two very exrensive reviews that were done.
One is
/ SECT-77-355, and SECY-78-485, which went into these issues.
18 Both of these SECT papers were broader than that, but ther 19 treated this issue that we are dealing with now in some 20 depth.
21 CHAIRHAN HENDRIE Why don't you outline the OGC 22 commaents on the proposition before the h_ouse?
l l
23 ER. BICXWITs Our only concern was that we felt a l
24 stronger rationale would be useful for moving tlese 25 considerations from the 01 proceeding.
The reason that need ALDERSON REPCRTING CCMPANY. INC.
l 400 VIRGINIA AVE., S.W WASHINGTON. D.C. 20024 (2C2) 554 2345
8 1 for power is looked at and alternative energy sources are 2' looked at at the OL stage is to analyze whether the 3 no-action alternative or the alternative of a plant of 4
4 another energy sourcr is a reasonable alternative.
5 Under NEPA, you needn't look at all alternatives 6 when you are doing en environmental review.
If some are so 7 remote as to be infeasible, then it is understood that...they 8 needn't be analyzed at the time of the major federal 9 action.
But if by rule that is what you are providing, then 10 you need in our view to demonstrate rather clearly in the 11 rule as to why they would be infeasible in all 12 circumstances.
13 I think from a policy standpoint it is defensible 14 to say that they would be, that when you have a completely 15 built nuclear plant, that the alternative of no action or 18 the alternative of keeping the. plant out of operation in 17 order to allow a plant of another energy source to operate, 18 I think it is reasonable to say that those alternatives is alght well be infeasible.
20 But I think you have to, to preclude their 21 consideration at the OL stage, you have to be pretty clear 22 in your rationale as to why they are l'nfeasible.
CORNISSIONER AHEARNE:
Had you looked, Len, at the 23 t
24 two studies that Darrel had commented on?
Do you knov 25 whether either of those meets your request for a staff ALDERSCN REPORTING CCMPANY,!NC, 400 VIRGINIA AVE, S.W WASHINGTCN, D.C. 20024 (202) 554 2345
9 1 study?
2 HR. BICKWITs No, I ha ven' t.
I have only looked 3 at the proposed rule.
4 COHEISSIONER AHEARNE Marty, are you familiar 5 with either of those?
6 HH. HALSCH4 They didn't ring a bell when I heard 7 them described.
I may have read them before, but I'm not 8 certain.
9 CORRISSIONER AHEARNE:
What I gather you're to proposing is that the staff do a study to --
11 HR. BICKWIT:
No.
I think it is feasible to take 12 existing materials and make the case that.the consequences 13 of keeping a plant out of operation are just unbearable when 14 rou have the alternative of putting it in operation.
- Now, l
15 if on the basis of existing materials that can't be said e 16 then I would think You would need another study.
l 17 COHNISSIONER AHEARNE:
Is it correct that you are 18 assuming that there are existing materials that.vould l
19 support that?
20 MH. BICKWIT Tes.
But I think.the bulk of that
'21 - - the bulk of the reason I think that is; persuasive -is that 22 there is a general understanding as to wha _t the financial 1
23 consequences would be to a utility and to the general public 24 of simply not allowing a constructed plan,t to operate.
I
- 25 think there is some understanding of what the environmental i
l l
ALDERSoN REPORTING CCMPANY,lNC, 400 VIRGIN!A AVE. S.W., WASHINGTCN, D.C. 20024 (202) 554 2345
4 10 1 dif ferentials might be between a nuclear plant and any l
2 alternative.
l 3
And I guess I an incliaed to think that there is 4 material available which would document that the 5 consequences, the environmental consequences if there be any 6 differential, of keeping this plant out of operation, would 7 tot compare with the financial consequence's of simply keeping the plant out of operation.
a 9
COEHISSIONER AHEARNEa For the environmental 10 consequences, I think it really er.ds up being~a study, 11 because in the sense that even if a lot of that information 12 is available, there is some effort to go find it,. dig it 13 out, pull it.together.
14 ER. BICKWIT:
Yes.
15 COENISSIONER AHEARNEa Would you'say that using as l
18 an assumption that the safety requirements are met?
1 17 HR. BICIVITa Yes.
18 "ONHISSI:JNER AHEARNEa So then it would not --
19 CHAIRHtN HENDRIEs And the environmental 20 requirements.
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'21 ER. BICKWITs The safety requirements in the 22 Atomic Energy Act. vould be met, that Jould be a prealse.
23 The question is, when you are balancing environmental 24 consequences under NEPA versus other consequences, can you l
25 rule out the alternative of koeping this plant out of ALDERSON REPCRTING COMPANY,INC.
400 VIRGINIA AVE., S.W., W ASHINGTCN. D.C. 20024 (202) $54 2345
11 1 operation.
2 COHNISSIONER AHEARNE:
I just want to make that 3 clear, because for many of the other mechanics of 4 generation, if you are villing to take as an acceptance that 5 the safety requirements are met, then it is probably very 6 easy to show that at least environmentally the nuclear power 1
7 plant, for other actual generation sourcer, the power plant 8 is much better.
9 HR. BICKWIT:
That would be my guess.
10 CHAIRHAN HENDRIEs It seemed to-me, Len, that on 11 page 3 of your meno the essential proposition is pretty 12 f airly stated.
It certainly agrees with my. feeling about 13 the thing.
That is, if you balance on the one hand the 14 immediate consequences to the utility and its investors, and i
15 then in the longer-term the utility ratepayers, of a refusal 16 to allow a completed plant to go into operation, and to nr compare that with whatever increment plus or minus there 18 sight be in environmental effects, that you have in all but
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19 the most extraordinary case a f airly overpowering 20 proposition in favor of allowing the plant to.go forve.rd and 1
- 21 ope: ate.
22 I think that is the case, and I;think that is 23 probably also -- one can aisc outline that 1-ine of reasoning 24 with some substantive material.
25 HR. BICKWIT:
Well, some materials that I know are 1
l ALDER $CN REPCRTING COMPANY. INC.
400 VIRGINIA AVE., S.W WASHINGTCN. Q.C. 20024 (202) 554-2345
12 1 available are the past environmental impact statements in 2 which it is concluded that.with respect to specific plants 3 the environmental effects of a nuclear plant are less than 4 the environmental effects of the alternatives.
I think if 5 rou assemble enough of those that is going to certainly help 6 your case substantially when you try to add this up into the 7 proposition that the no-action or the alternative source a alternative simply doesn 't make auch sense a.t this stage.
9 CB'AIRHAN HENDRIEs Now, there's always the 10 extraordinary case to be considered and the proposition, if 11 there were one, would be a perfectly reasonable approach, 12 would be to come in under 2.758 and says look, this 13 exclusion doesn't serve its purpose here because here are i
14 the extraordinary circumstances.
And then one can consider 15 them.
16 I think it is fair enough that the-Commission's 17 nules, which reflect the var that we carry-out things in 1d most places, correspond generally to the way things go most l
19 of the time, rather than the other way around.
So it seems 26 to se a reasonable proposition.
21 Now, having just breached what could - be,a very i
22' int eresting discussion, in view of my earlier comment that I 1
23 would like to get a couple of affirmations done and some 24 discussion on the affirmation items before Vic.has to pull-l 1
25 out a few minutes before 3:00, what I'd like to do is just--
l ALDERSCN REFCRTING CCMPANY. !NC.
400 VIRGINIA AVE S.W., WASHINGTCN. 0.C. 20024 (202) 554 2345
13 1 to recess this discussion and turn to the affirmation 2 session.
3 C0HEISSIONER AHEARNEs But you don't want them to 4 leave?
5 CHAIRMAN HENDRIEs No.
I'm sorry to say, I'm 6 going to ask you to hang around so we can come back to 7 this.
8 (Recess.)
9 10 11 12 13 u
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25 ALDERSCN REPORT'NG CCMPANY,INC.
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10 1
- 44. HENDRIE:
Very good.
let us come back to such 2 order as we can accomplish amongst ourselves.
The session 3 is now open.
4 I will note for the information of those who say 5 have come in and be interested that the Commission vill 6 continue its discussion of the draf t decision on the GPO 7 federal tort clais on Honday the 8th at 1 p.m.
8 Yes, sir.
l 9
COHHISSIONER AHEARNE If we are going to move on i
10 into discussing SECY 317A, I guess I would like to i
11 understand why 317A isa-t distributed.
12
- 58. BICKVIT Well, my own feeling is shat the 13 Conaission preserves its flexibility best when it receives 14 advice of counsel in confidence.
15 COHNISSIONER AHEARNE:
Then should we not have a 16 closed meeting?
17 HR. BICKWITs I don't think it is necessary to 18 have a closed meeting.
I think it is simply necessary to 19 hold close this particular piece of paper.
20 COHHISSIONER BRADFORD:
Especially if we don't 21 knor really what we a.a talking about.
22 HR. BICKWIT:
Consistent with the maximum possible 23 openness principle.
24 COHNISSIONER AHEARNE:
I guess I disagree.
25 CHAIEHAN HENDRIEa A simple way;to do it, I guess, AL ERSCN REPORTING CCMPANY,INC, 400 VfRGINIA AVE. S.W WASHINGTCN. D.C. 20024 (202) 554 2345
15 1 would be to ask for a division of those present and voting 2 whether to put 317A Jn the back board.
3 COHEISSIONER BRADFORD:
I agree with John.
I 4 think that if this paper is to be discussed in an open 5 session, then not enough is preserved by actually holding 6 the text close up here at the table.
If it does rise to the 7 level that there is a serious legal problem, then we ought 8 to close the meeting.
9 COMMISSIONER AHEARNEs That is the way I feel.
10 CHAIEHAN HENDRIEs I guess on advice of counsel I 11 would not put it back there.
I find myself the underdog in 12 a two to one vote.
13 len, do you think there is serious litigation 14 risk?
You know, your paper obviously 15 HR. BICKWITa obviously if you follow the proposal 16 of our paper, there is no litigation risk.-
-I v a n t to give 17 you the option of not following it.
So it really does -
18 depend on how the Commissieu chooses to resolve the matter.
19 CHAIRHAN HENDRIEa It seems to me that from your 20 standpoint you ought to argue to make the: paper public', then
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21 point out to the Commission that, having done that, ther 22 'have no choice but to follow your recommendations.
~
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23 COREISSIONER AHEARNE:
If we are. go-ing to sit up 24 here in an open meeting discussing a paper, this shouldn 't 25 be' an exercise in cryptology by the audience to try to' l
t l
ALDERSON REPORTING CdMPANY. INC.
400 VIRGINIA AVE. S.W. WASHINGTON. 0.C. 20024 (202) 554 2345
16 1 figure out what must be the paper that they are fiscussing.
2 CHAIRMAN HENDRIEa I guess I don' t hev to that as 3 an inviolable principle, but in this case the expression of 4 interest on this side of the table shows a. clear majority in 5 f avor of putting it back there, so let us put it back there, 6 the counsel having said there is not serious legal objection 7 of litigation risk.
Let us consider it done.
The Secy will 8 do it and back to discussion.
9 HR. CHILKa Well, there are times that we don't to have extra copies.
11 CH AIRMAN HENDRIEa The counsel has.Various ways of 12 carrying out his objections, after all.
13 COHHISSIONER BRADFORD's We could have our 14 discussion sitting well away from the microphone.
15 CHAIRHAN HENDRIEa We normally do that.
- Okay, 16 onward.
17 Now, the base proposition before-the house is,,it
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18 seems to me, whether to go forward with the staff proposal 19 as it stands.
The infamous paper has now arrived.
Those 20- who have not read it and are now receiving it are warned 21 that they are about to receive knowledge which.Will burden.
22 them the rest of their lives.
n--
It seems to se the proposition before the house is 23 24 whether to go forward with the staff proposal as it is 25 framed as a rule which would be for comment, a proposed rule f
ALDERSON AEPCRT!NG CCMPANY,INC, 400 VIRGINIA AVE S.W WASHINGTcN, D.C. 2T24 (202) 554-2345
17 1 for comment, or whether to ask the staff to retire and put 2 together a sort of alternate basis for the same rule 3 provisions, said basis to be along the lines that -- the 4 guts of it are right there on page 3 of the OGC meno, noting 5 that exc6pt in the extraordinary case which.could be aspir 6 taken care of by use of 2758, that the costs _to peopla, th e
- 7. cost.to the utility, the investors, rate payers eventually 8 compared to thatever environmental increment _vas likely to 9 accrue, which could even be in favor of the plant, just are to very unlikely to be overbalanced by the enyironmentti thing.
11 HR. DIRCKSs I as sure Bill vill want to have a.
12 f ew words, but could I -- I am not quite s.ur.e I understand 13 everything that is salC here, but what I do understand-is 14 this.
Particularly the study, the analysis _o.f this 15 alternative rationale on page 3 -
"Section analysis would te examine consequences to a utility, investors and rate payers 17 of not allowing a completed nuclear plant to operate and
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18 reach a general conclusion whether these con, sequences could 19 likely be outweighed by other environmental. considerations" 20 -- that is a very broad and sweeping analysis, and if. we get 21 into something lite that, aside from the nerits of
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22 discounting the environmental consideratio,ns. coming u.pr I
'23 don 't think we are ever going to get tc a gesition where we n
24 are today, namely, hitting this particular question of need 25 for power.
It is a very big chunk and it;isf. going to take --
St. DER $0N REPCRTING CCMPANY,iNC, 400 VIRGINIA AVE., S.W., WASHINGTCN, D.C. 20024 (202) 554-2345
18 1
COMMISSIONER AHEARNEa At that stage you are at f
2 the point where you balance how much resources are spent I
3 defending the need for power argument in ths hearings versus 4 this, and you conclude the study is going to be bigger than 5 those resources.
6 ER. DIRCKSs Bill?
7 HR. PARLER:
The proposed rule has a very narrov 8 objective.
That objective is to eliminate the repetitive 9 re-review and re-litigation just of need for power and 10 alternative energy source issues at the operating license 11 stage.
Because of the present rules which are written which 12 ref er to new informatior., consonly these issues are raised 13 at the operating license stage, and typically they are not
(
14 raised in the context of the hypothetical. example that is 15 given in 317 A.
16
~
As I understand the proposed rule as written, it 17 was certainly its intent.
If there is,the situation..that is 1
18 suggested in the hypothetical example that-there is
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19 available a source of electricity which could be used and 20 which is either environmentally superior to -the nuclear 21 power plant which is being constructed or:there is 22 info'raation which is offered and otherwise. valid contentions 23 which if it is accepted would show that there is the 24 potential for showing that there is another source which is 25 significant1r environmentally better than: the-nuclear plant, ALDER $CN REPCRTING CCMPANY. INC.
400 VIRGINIA AVE S.W., WASHINGTCN. D.C. 20024 (202) 554 2345
19 1 the proposed rule does not, as the general counsel's 2 memorandum points out, preclude such issues.
3 That is one of the reasons for the special 4 circumstances valver provision.
We relied on the special 5 circumstances valver provision, which is now the general 6 revision in the rules, rather than trying. to spell out what 7 significant new information meant or very significant nov 8 information, because in addition to the example that is 9 given in the general counsel's memorandum, there may be an-10 untold number of other examples of the extraordinary 11 situation where even though we have looked at need for power 12 and alternative energy sources at the construction permit 13 stage, there is nevertheless an alternative-type issue which 14 is -raised at the operating license stage which is 15 appropriate for consideration.
18 The proposed rule does not rule out consideration 17 of such issue under the SALP cost theory, as the general 18 counsel suggests.
It does not rule out the. consideration of 19 such an issue simply because alternatives have already been 20 considered in the construction permit stage..It does not
- 21 rule out the consideration of such an issue -bec.a.use of
~4: -
22 NEFA's rule of reason.
The rule of reason-v.as. simply
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- 23 pointed out in a footnote for the purpose _,of indicating.what 24 the law allows.
Thst is, NEPA law does allow reasonable.
-25 flexibility of our rulemaking authority based on experience.
ALDERSCN REFCRTING CCMPANY,INC, 400 VIRGINIA AVE S.W., WASHINGTCN. D.C. 20024 (20 2 '54-2345
20 1
As far as the alternative theory is concerned, in 2 addition to the points that I've already tried to make, that 3 is, a ctacking, as Dill Dircks yointed out, dealing with a 4 policy issue which goes auch broader than the limited scope 5 of the proposed rule.
That is, it would apparently rule out S NEP A considerations completely at the operating license 7 stage.
8 It also for that reason, as far as NBC's 9 experience is concerned, would get the NRC~into uncharted to and unknown NEP A law territory.
I recognize, as the general 11 counsel points out, that there are general NEPA decisions 12 which provide that NEP A does not dictate particular results 13 to the decision-makers; but a move in the direction' of 14 saying that NEPA is not relevant at all at-the operating 15 license stage, as the study would seem to suggest, would ce to a significant step considerably beyond that involved in the 17 proposed rule.
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18 Since the hypothetical example, which is 2
19' presumably the basis f or the general counsel's analysis that 20 the proposed rule 's justification is deficient, perhaps 21 legally deficient, is in my judguent not correct.
I would..--
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2h-think that for the narrow purpose of the prop 6 sed: rule, tha t-l 23 its objective and the reasons for proposing it are. laid out 24 in the proposed statement of considerati_on.
2 25 The objective is clears to avoid:unhecessary and ALDER $oN REPCRTING COMPANY. ;NC.
400 vtRGINIA AVE., S.W., WASHINGTCN. C.C. 200:4 (202) 554 2345
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21 1 repetitive litigation simply because of some alleged change 2 in ciretastances from the prior consideration, a decision at 3 the construction permit stage on need f or power and 4 alternative energy sources.
As we know from the decisions, 5 including the fairly recent 1979 Commission decision in 6 Sharon Harris, these forecasts are not exact..
There is 7 considerable room for margins of error.
8 The way the situation now stands is that if 9 someone at the operating license stage makes a contention to alleging such changes without more, those contentions tt probably requires routinely a ' reconsideration of need for 12 power and alternative energy source issues..
13 And in any event, if the alternative theory is 14 adopted I would think that you would have to have some sort 15 of waivar provision because even though the _ result is la probably supported, as indicated earlier, on the basis of 17 studies and final environmental statements, when you
- 18 disregard the impacts of the construction of a nuclear _ power 19 plant, that the operational environmental izpacts are 20 insignificant. no one vill know with grea_t confidence what 21'. sort of extraordinary examples someone might co.ae. up wi.t.h. -A n 22.the f uture, such as the one that the general counsel 23 men tioned.
I 24 So the point: that I aa trying to make is that we 25 think that the proposed rule has an adequate justification.
ALDER $CH REPcRTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTCN. 0.C. 20024 (202) 564-2345
22 1 The alternative approach gets us into a broader area which 2 has unknown and untested NEPA legal questions involved.
3 In other words, I disagree with the conclusions 4 reached in the general counsel's memorandum which lead his 5 to also conclude that the justification of the proposed rule a is inadequate.
7 CHAIHNAN HENDRIE:
Len, your paper says we believe 8 such an analysis could be put together with existing 9 materials and no delay of any consequence in issuing the 10 proposal.
11 So it sounds to me that in making the proposition 12 that there be a stronger argument, that it,would be very.
13 unlikely that a need for power issue would be of sufficient 14 magnitude to affect the decision, so let's write it out of 15 the rules except for any extraordinary circumstances.
You 16 seem to have a feeling, some sort of internal.model in mind 17 f or.what you would patch together, and it -sounds like a. lot 18 less than the sort of thing that Bill is worried about, tha t 19 both Bills are vorried about. )
20 HR. BICKWITs I think it is.
We-do not have a 21 comprehensive study that is going to take - :--
22 HH. DIHCKSa Could I suggest, th,em, tha t you might 23 be able to do it better than we can?
COH5ISSIONER BRADFORD4 I saw tha t discussio_n-24
-25 coming about a half-hour ago.
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1 ALDERSCN REPCRTING CCMPANY. INC.
400 %RGNIA AVE., S.W., WASMNGTCN. D.C. 20024 (202) 554 2345
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HR. BICKWITs In fact, I don't have any problems 2.vith that, but whether we do it or you do it is not really 3 the basis for the decision here.
My own feeling is that I 4 understand the objective, which is to preclude raising these 5 issues again at the OL stage, like need for power and 6 a7.ternative source with nothing else involved, just changed 7 cir:cumstances in that regard.
That is all the rule co. vers.
's HR. DIRCKSs We get the impression that. you want
'9'to go auch further.
10 HR. BICKWITs No.
Hy concern is that you have the 711 National Environmental Policy Act, which says that when you_
12 have major federal action, you have to examine alternatives 13' except those alternatives that you can say are remote.
And 14 I think you had in mind in proposing this rule that the 215 alternative of doing nothing after the plantris built or 16 going-with an alternative energy source, that either of
-17 those alternatives is remote.
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18 HR. PARLERs Not at all.
The basis of the paper 1
19 is that need for power and alternative energy-sources have 20 already been considered at the construction persit stage, and in the absence of a significant new inf ormation--which _
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21 22 ' suggests that those matters sLauld be reconsidered or.
23 relitigated, that there is no need to do that as f ar-as -
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HR. BICKWITs-Well, I as saying: even in the -
25 presence of such.
1 ALDERSCN REPcRTING COMPANY. INC.
400 VIRGINlA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
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CH AIRH AN HENDRIE s But you are agreeing. You are 2 essentially agreeing.
He is just saying the proposition 3 that we need to consider, that in those circumstances we 4 need not consider it at the OL stage, is based on a fairly l
5 strong feeling that if he litigated need for. power and 6 alternative energy source issues, those were. the only things 7 turning in the operating license pioceeding and -it is just 8 very unlikely tha.t the decision would be made not to operate 9 on those issuer, alone.
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10 ER. PARLER:
I agree with the. result.
I just 11 didn't want to lose sight of the obvious fact.that these.
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12 things hav>a already been litigated once.
13 CHAIRMAN HENDRIEa The language inz. the proposed.
- 14 statement of considerations sort of says that..
.I-am looking.
15 at the paragraph on page 4 in which you disc.uss how it has
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16 been treated at the CP stage, and now we have.the OL stage 17 and thitcs are dif f erent.
The plant is constructed', the l
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18 costs-havs been incurred, and you say given this f actual 19 background, the Commission cannot readily conceive of a
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20 situation in which an alleged reduction, et cetera in and of
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22 license, unquote.
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Now, as I read the OGC remarks,-ther: are along the i.
23 24 line that co uldn 't we make a somewhat more quantitative case
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25 either in association with the paper or even-write the ALDERSoN REPCRTING COMPANY,INC.
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1 1 summary of it out in a statement of consideration that in 2 f act that is likely to be the case?
I don't think they are 3 saying no, let's go on and sweep beyond that in any sense at 4 all.
5 HR. DIRCKS What is meant by thiss "Section 6 analysis would examine consequences to a utility, investors
- 7. and rate payers of not allowing a completed-nuclear plant to -
8 operate and reach a general conclusion whether these 9 consequences could likely be outweighed by other 10 environmental considerations"?
Right above that it says
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11 "Should a completed nuclear plant which satisfies all the 12 requirements of the Atomic Energy Act be prohibited from 13 operating?"
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14-That seems to me a broader analysis..th.an this
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15 particular issue of need for power.
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CHAIRHAN HENDRIEs But the whole thing -is focused 17 only on need for power.
15 HR. DIRCKSs That is not what you:said here, 19 though.
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20-CHAIRMAN HENDRIEa I know.
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HB. BICKEITs The reason f or the need ;for : power.
22 analysis under NEPA is to examine the feasibill.ty of the no 23 : action alternative, and if you believe the no action alternative is infeasible as a general rule.af ter you -have
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'25 got the' plant built, then it is just our proposition that ALDERSON REPORTING COMPANY. NC.
400 VIRGINIA AVE., S.W WASHINGTON, D.C. 20024 (202) 554 2345
26 1 you ought to say why.
2 HH. DIBCKS:
Focusing only on the narrow issue of 3 need or power?
What you are saying is that the argument to 4 support this need for power problem here should be beefed up 5 with some sort of an analysis.
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6 HE. BICKWIT:
That is right.
7 NR. DIRCKS And obviously you h~ ave in sind what 8 sort of an analysis is needed and where the materials are.
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9 If it is only that, that is one issue.
I just read this as 10 saying should we sweep away all environnettal considerations i
11 if a completed plant sits there.
I 12 ER. BICKWIT No, no.
It is not meant to say 13 tha t.
It is meant to say, however, that yon need to say 14 something about the fact that it is untenable to allow. that l
15 ' plant, having been constructed, not to operate.. You.have to te give some reason as to why that is not a good idea, and it 17 'needn't be in the form of a NUBEG analysis-but. it' needs some Itr analytical backup.
27-19 COHEISSIONER BR ADE0HD:
Of course, the mischief
- 20. here is that you have to be careful not to consider the- :
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- 21 capital costs.
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iz COHNISSIONES AHEABNE:
It still; sound's.to me like.
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53 a large analysis.
HR. BICKNIT Well, we wrote the paper and we
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24 25 didn' t have in mind large analysis.
ALDERSCN REPCRTING COMPANY,INC.
400 VIRGINIA AVE., S.W WASHINGTCN, D.C. 20024 (202) 554 2345
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COHNISSIONER AHEARNE:
Exactly; and therefore I 2 think it is best done by your office.
3 HR. BICKWIT:
That is fine.
4 CHAIRHAN HENDRIE:
I think my own view is that it 5 would be useful for some of your staff, Bill, who-. are 6 familiar with this stuff, to sit down with the counsel's 7 office to sort through the material and get a clear idea of
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8 what is in mind.
It may be that we are not in fact so far 9 off, that you are not as far apart as you al.qht. think,.and to that the sort of buttressing of the proposition here that 11 you are recommendins we have might not turn out to be;all 12 that arduous a proposition.
13 Now, whether he ended up making a final set of
- 14. vords on it or your guys do it I leave you to. argue betweec 15 the two of you, but clearly you have to talt to each other.
16 HR. DIRCKS:
I think we can.
17 CHAIHHAN HENDRIE:
And each spell out the 18 particulars.
He needs to say, well, I think_ ve h ave these 1S reports and what I do is cite this one and this one.
20 HR. DIRCKS4 I think it is.aore.
I think it may 21 be more than that because that premise of -should, a plant. not 22 be allowed to operate, I think that is the. issue that may.b e- -
23 very difficult to get at.
I think it is more difficult than
-t 24 wha t. ve are heading for in this one.
We tried to keep thi_s -
25 one sort of simple and direct it only to a. par,ticular issue.
ALCERSCN REPORTING CCMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTCN. O.C. 20024 (202) 554 2345 l
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CHAIRHAN HENDRIEa I don't read anything over 2 here, in fact I don't read anything cosing from that end of 3 the table which would suggest that the proposed changes in 4 Part 51-21 and 53 would be any different than exactly what 5 rou have said.
6 HR. PAR 1 era That is my understanding.
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CHAIENAN HENDRIEs And in fact, with regard to the -
8 statement of considerations, there probably is an extra page 9 that would go in and there might be a memorandum of seven or 10 eight pages that would be available in support of. that.
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11 Now, if that is the case and the material is. not.that 12 dif ficult to come by, then that seems like a-reasonable 13 proposition for us to do.
If indeed there are more 14 substantive differences on the thrust, why, a.certain.ancunt.
15 of haggling and shouting at each other may. illuminate those 16 on both sides, and we can' understand that and see what to do
' 17 with it.
18 MR. PAR 1ERs The explanation on page -4_ you 19 ref erred to earlier was primarily, at least ay-mind, based l
- 20 on about eight or nine years of-experience.: litigating these:-
21 issues.
These narrow issues are raised and the conclusion..-
I' 22-is alvar,s the same.
The situation has not:been _tt;
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r CHAIBRAN HENDHIEs Bill, I don't: find fremfover 24 here anything more than a recommendation that if a good part.
25 of what they think you ought to have is a pummarizing of '
l ALDER $oN REPORTING CCMPANY. INC, 400 VIRGINIA AVE S.W., WASHINGTCN. O.C. 200244202) 554 2345
e 29 1 that litigation experience along with some contes'plation of, 2 rou know, what it is worth to have a million-plus units 3 sitting out there and the utility is told no, you can't use 4 it, now what do you do with it, what do you do with the 5 electricity that is generated and is that all. vorth doing 8 compared to the difference between nuclear plant emissions 7 and coal plant emissions, perhaps, or naclear plant 8 emissions and waiting for a couple of millio.n square feet of 9 TV panel or whatever.
10 Any Commissioners' comments?
You.c.an see what I 11 am sort of suggesting here.
12 COMMISSIONER AHEARNIs When this first,came up a 13 year and a half ago, my concern was it would end up..taking F
14 up more resouri:es than was worth the effor.ts _,It now has the 15 potential of slipping back into that mode,. and that is why I 18 really believe that if Len or Harty can saw.a more narrow i
17 focused study that will accomplish what ther..believe is 18 necessary, then they should do it, and I think OGC should-do.-
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20 I have no problem with saying that:the staff 21 should point in the direction of documents...I-dust ap... _ - - -
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- 22 concerned about it.
If it is going t o l e a_d _tg> Jt. big study.,
23 I think we ought to reconsider whether we want to allocate 24 staff resources that way.
25 I have another question.
len's_last point is the ALCERSCN REPORTING CCMPANY,INC, l
400 VIRGINIA AVE., S.W., WASHINGTCN, D.C. 20C24 (202) 554 2345
30 1 paper deals only with NEPA issues with reference to safety 2 impact.
On page 4 there is a statement that says denial of 3 the operating license would be reasonabis and justified only 4 in the real or unusual case in which there has been some 5 significant change in the newly-discovered information 6 concerning the public health and safety or environmental
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7 impacts associatud.
That was the only place ~I could see --
8 COMMISSIONER B3/DFORD:
Yes, I would have deleted
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9 that for, I think, the same reason, which is that I think to this is just an everall threshold for operating license It reviews, which in other contexts we have advoca'ted, that is, 12 the various licensing reform legislation. But it isn't the 13 statutory standard at the moment.
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COHNISSIONER AHEARNEs on that point, Peter, why 14 15 would you. just delete saf ety?
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16 CONNISSIONER BRADFORDs I would delete the 17 sentence.
Actually I would delete more than that, but 18 anyway, among what I would delete is that sentence.
19 COENISSIONER AHE ARNE:
Len,you somehow saw a
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20 dif ference berveen safety and public health.
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- HR. BICKEIT No.
He have in mind del'eting the
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22 ref erence to public health and safety.
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COMMISSIONER BRADFORD:
I don't:have an~y 24 questions.
In the time long before the review comes back I
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25 think I will circulate a couple of sentences that I wo'uld
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ALOERSON REPCRTING COMPANY,INC.
400 VIRGINIA AVE S.W.WASHINGTCN. O.C. 20024 (202) $54 2345
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I have no objection, though, to something 1 like to put in.
2 along these lines going out for comment as soon as the 3 Commission is in a position to approve it.
CHAIRHAN HENDRIEs Okay.
Would you please find a 4
5 var to gather the stack of material that might be useful to 6 get straightened away on what counsel thinks this thing the case and let us knov 7 ought to have by way of buttressing 8 how that looks?
If it can be sone in a frirly 9 straightforward f ashion without great agenies and chewing up 10 half the office and one thing and another, I mean it would certainly be u:.eful to do it briskly.
11 This Commission vill sit for two more weeks.
12 Okay, thank you very much.
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' (Whereupon, at 3:30 p.m., the meeting was 14 15 adjourned.)
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AI.CERSCN REPORTING COMPANY,INC, 400 VIRGINIA AVE. S.W, WASHINGTON, D.C. 20024 (202) 554-2345
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e NUCLEAR REGULATORY CO.W SSION This is to certify that the attached proceedings before the CCMMISSION MEETING in the satter of:
Public Meeting - Discussion of SECY-81-317 - Need For Power Rule Date of Proceeding:
June 4, 1981 Docket llumber:
Place of Proceeding:
Washington, D. C.
were held as herein appears, and thac this is the -criginal transc-1;t therecf fer the file cf the Cc=siss'-
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Susan Earris
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Official Reporter (Typad) r Official Reporter.(Signature) 8
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