ML20023C457

Memorandum of Points & Authorities Supporting Intervenor Motion for Summary Disposition Since Contention 1 No Longer Controversial Issue.Certificate of Svc Encl

ML20023C457
Person / Time
Site:	Skagit
Issue date:	05/12/1983
From:	Cavanagh R National Resources Defense Council
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8305170347
Download: ML20023C457 (14)

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Q is s UNITED STATES OF AMsR h NUCLEAR REGULATORY CdPN SSION

/.31 (p, g BEFORE THE ATOMIC SAFETY AND'LICEN$fNG AR

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.Nq 5,4 9 y a *:q In the Matter of ) sl9N  %

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(Skagit/Hanford Nuclear Project) ) DATE: May 12, 1983 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF INTERVENORS' MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION 1 Introduction Contention 1 in this proceeding frames the "need for power" issue, which has bean raised repeatedly in NRC licensing proceedings. Several consistent themes have been developed by the Licensing Boards in their treatment of "need for power" contentions. Those doctrines, applied to the facts presented in this submission, require a decision to grant Intervenors' Motion for summary disposition of Contention 1.

I. Contention 1 must be sustained unless applicants are equipped to demonstrate a non-speculative need for Skagit/Hanford power, which is consistent with the findings of public bodies charged by law with energy forecasting responsibilities.

A. Need for power is an essential element of the Board's statutorily-mandated cost-benefit analysis for Skaalt/Hanford.

The National Environmental Policy Act (NEPA), 42 U.S.C."

S 4321 et. seq., requires a balancing of environmental costs against expected benefits of major federal actions, including the M

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award of NRC construction-licenses for nuclear power plants. The primary justification for building any nuclear power plant is the anticipated need for its -electricity production; accordingly, need for power questions are central to the cost-benefit analysis that NEPA requires. "A nuclear plant's principal ' benefit' is of course the electric power it generates." Duke Power Company (Catawba Nuclear Station, Units 1 and 2) , ALAB-355, 4 NRC 397, 405 (1976).

Accordingly, the Appeal Board has held that "a determination that there is a ' genuine need for the electricity to be produced' is an essential element in approval of a license for a nuclear facility." Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2) , ALAB-264, 1 NRC 347, 352 (1975),

quoting Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-179, 7 AEC 159, 175 (1974). In establishing that a need for power exists, the applicant has the burden of showing "that its projections of demand are reasonable and that additional or replacement generating capacity is needed to meet that demand." Public Service Company of Indiana, Inc.

(Marble Hill Nuclear Generating Station, Units 1 and 2) ,

ALAB-459, 7 NRC 179, 185 (1978), quoting Energy Research and Development Administration (Clinch River Breeder Peactor Plant),

CLI-76-13, 4 NRC 67, 76-77 (1976).

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v B. A showing of speculative future need for Skagit/Hanford power woula not justify denial of this motion.

The timing of need for power is a critical factor in deciding whether or not to issue a construction license.

"[ Congress's] insistence that [a statutory) deadline be imposed cuts against any suggestion that Congress envisaged a regulatory scheme whereby an applicant could apply for and obtain a permit and then hold it in reserve until such time, if ever, as it seemed to make good business sense to put the permit to use."

Georgia Power Company (Alvin W. Vogtle Nuclear Plant, Units 1 and

2) , ALAB-276, 1 NRC 533, 535 (1975).

As a recent NRC precedent emphasizes, there are also compelling NEPA grounds for rejecting efforts to license nuclear plants by invoking far-distant or speculative need. In Union Electric Company (Callaway Plant Unit 2) , DD-80-10, 11 NRC 489, 491 (1980), the NRC's Office of Nuclear Reactor Regulation addressed a request to suspend a construction permit while the i

facts upon which the permit was initially grantea were reassessed:

Not only must the Commission determine that a need for the generating capacity of the plant exists, but j it must also determine that the need for the plant l coincides reasonably with the operational date of the i plant. The reason the NRC concerns itself with the timing of the need for power is that a federal agency should not permit the environmental impacts of costs of a proposed action to be incurred earlier than ,

l necessary. The intent of NEPA is that any irretrievable and irreversible commitments of resources should not be made while environmentally less damaging alternatives may exist or may be developed. (Emphasis added)

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e Table 1 below confirms that NRC practice has conformed to these principles; Licensing Boards' endorsements of need for power consistently have been based on projected power requirements no more than 5-8 years removed from the date of decision.

C. In assessing the need for power from the'Skagit/Hanford Nuclear Project, the Board must defer to the judgement of public bocies charged by law with the responsibility of providing electricity demand forecasts.

Although NEPA requires the NRC to satisfy itself that there is a need for the power from a proposed nuclear facility, the agency has not read the statute to foreclose the " placement of heavy reliance upon the judgment of local regulatory bodies which are charged with the duty of insuring that the utilities within their jurisdiction fulfill the legal obligation to meet customer demands." Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), ALAB-490, 8 NRC 234, 241 (1978), aff'd CLI-79-5, 9 NRC 607, 608 (1979). This reasoning was reaffirmed in the Sterling Power Project proceedings, where the Appeal Board declared that the need for power findings and conclusions of a state siting board "will be given great weight by us unless shown to rest upon a fatally I flawed foundation." Rochester Gas and Electric Corporation, et l

l al. (Sterling Power Project, Nuclear Unit No. 1) , ALAB-502, 8 NRC 383, 389 (1978). Most recently, in Union Electric Company (Callaway Plant Unit 2) , DD-80-10, 11 NRC 489, 494 (1980), the i

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TABLE 1:

SUMMARY

OF NEED FOR POWER FINDINGS IN NRC LICENSING PROCEEDINGS Date of NRC Finding of "Need Estimated Date That Facility's-Name of Licensed Facility for Power" from Facility Power Would Be Needed Catawba Nuclear Station, April 9, 1974 Unit 1 - 1978-1979 Units 1 and 2 7 AEC 659 Unit 2 - 1979-1980 LBP-74-22 7 AEC 659, 681-682 Nine Mile Point Nuclear April 8, 1975 1979-1981 Station, Unit 2 1 NRC 347 1 NRC 347, 368 ALAB-264 St. Lucie Nuclear Power February 28, 1975 1980 Plant, Unit 2 1 NRC 101 - 1 NRC 101, 114 LBP-75-5 8

Perry Nuclear Power Plant, September 9, 1975 1981

• Units 1 and 2 2 NRC 478 2 NRC 478, 494

LBP-75-53 Clinton Power Station, September 30, 1975 Unit 1 - 1981 Units 1 and 2 2 NRC 579 Unit 2 - 1984 LBP-75-59 2 NRC 579, 591-594 Seabrook Station, June 29, 1976 early to middle 1980s Units 1 and 2 3 NRC 857 3 NRC 857, 902 LBP-76-26 Hartsville Nuclear Plant, April 20, 1976 in the 1980s Units lA, 1B, 2A, and 2B 3 NRC 485 3 NRC 485, 501-502 LBP-76-16 Callaway Plant, October 21, 1976 1982 Units 1 and 2 4 NRC 371 4 NRC 371, 377-378 ALAB-352 Tyrone Energy Park, December 23, 1977 1984 .

Unit 1 6 NRC 1232 6 NRC 1232, 1278-1280 i-LBP-77-71

TABLE 1, CONTINUED Date of NRC Finding of "Need Estimated Date That Facility's Name of Licensed Facility for Power" from Facility Power Would Be Needed Marble Ilill Nuclear August 22, 1977 early to middle 1980s Generating Station, 6 NRC 294 6 NRC 294, 311 Units 1 and 2 LBP-77-52 Jamesport Nuclear Power May 9, 1978 middle to late 1980s Station, Units 1 and 2 7 NRC 826 7'NRC 826, 877 LBP-78-17 Shearon llarris Nuclear Power August 23, 1978 Unit 1 - 1984, 2 - 1986, Plant, Units 1, 2, 3, and 4 8 NRC 234 3 - 1988, 4 - 1990 ALAB - 490 8 NRC 234, 235-241 Perkins Nuclear Station, October 27, 1978 - Unit 1 - 1985, 2 - 1987, Units 1, 2, and 3 8 NRC 470 3 - 1990 LBP-78-34 8 NRC 470, 492-496 i

e Black Fox Station, July 24, 1978 1984-1985 Units 1 and 2 8 NRC 102 8 NRC 102, 155-158 LBP-78-26 Wolf Creek Generating January 18, 1977 1982 Station, Unit 1 5 NRC 301 5 NRC 301, 359 LBP-77-3 e

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Director of the Commission's Office of Nuclear Reactor Regulation recognized the NRC " practice of placing great weight on the decision of local regulatory bodies in the area of need for power."

II. Reliable regional energy forecasts, to which the Board must defer, demonstrate no need for the Skagit/Hanford Nuclear Project.

A. The Northwest Power Planning Council's forecast, and three other independent forecasts, indicate that the Skagit/Hanford output will not be needed.

The attached Affidavit of Dr. David B. Goldstein

("Goldstein Affidavit") reviews the Northwest Power Planning Council's final 20-year resource plan, as well as three other independent forecasts prep,ared under the direction of the State of Washington, the Bonneville Power Administration, and the Natural Resources Defense Council, respectively. Goldstein Affidavit, items 1-7. All four forecasts indicate that Skagit/Hanford output will not be needed, and that anticipated growth in regional demand can be met by resources preferable to nuclear facilities on grounds of cost, reliability, scale, and i environmental imoacts. Id.

Each of these studies was authored by individuals who "can be expected to possess considerable familiarity with the primary factors bearing upon present and future [ electricity demand)";

three of the four forecasts were issued by public agencies

" charged by law with the responsibility of providing up-to-date

. analysis of ... the probable future growth of the use of electricity."* Cf. Rochester Gas and Electric Corporation, supra, 8 NRC at 389; and Carolina Power & Light Company, supra, 8 NRC at 240-41. Under the doctrines reviewed in section I.C above, the Board must defer to these agencies' judgment on the l

need for power issue.

The findings of the Northwest Power Planning Council are especially significant -- indeed, dispositive -- for purposes of this proceeding. The Council is the centerpiece of the planning machinery created by Congress through the Pacific Northwest Electric Power Planning and Conservation Act of 1980; the Act was

" intended to provide a legislative solution to the electric power planning problems of the Northwest." H. Rep. No.96-976, Part I,

p. 27 (1980). The Council's refusal to include the i

Skagit/Hanford Nuclear Project in its twenty-year plan

constitutes an independently sufficient ground for granting this summary disposition Motion; the Council is the region's dominant authority on electricity demand forecasting and resource planning. Applicants themselves have conceded as much, as shown below.

• For recitations of these legal authorities, see 16 U.S.C. S 839b (Northwest Power Planning Council forecast) ; Washington Energy Research Center, Final Report to the Washington State Legislature: Independent Review of WPPSS Nuclear Plants 4 and 5 1, 39-41 (March 1982) (Washington State Forecast) ; Bonneville

! Power Administration, Forecasts of Electricity Consumption in the Pacific Northwest 12-14 (July 1982) (BPA forecast).

B.. Applicants have acknowledged that, for purposes of this

.proceecing, the Northwest Power Planning Council's twenty-year plan is dispositive on the question of need for power.

In a letter to Chairman Wolf dated-April 26,.1982, Applicants stated.that "probably the most significant need-for-power development still to come in the near-term will be the issuance of the regional cons'rvation e and electric power plan currently being-developed by the Regional Council in fulfillment of its obligations under the Pacific Northwest Electric Power Planning and Conservation Act. The plan is due to be issued in final form in April 1983 ... It is anticipated that the regional

' plan will play a major role in determining what new generating 1

resources.will be constructed in the region."

p The lead Applicant, Puget Sound Power and Light Company, has twice pledged in reports to stockholders that it will abide  :

J by the Council's decision in deciding whether to construct the i

Skagit/Hanford facilities:

We will not proceed, however,-without the existence

of an improved federal regulatory environment and affirmation of need for the facility by the Regional Power Planning Council. The Council's study is j scheduled for completion by April 1983.

-- Puget Sound Power & Light Co., Annual Report 1981:

Meeting the Challenge of Change, p. 11.

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i. We will not proceed with actual construction unless we receive two signals. One will have to come from 4' the' Regional Power Planning Council next year citing a need for additional generating facilities that -

would include Skagit/Hanford.

, -- Puget Sound Power & Light Co., Quarterly Report, May 15, 1982: Meeting the Challenge of Change I I i

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Applicants were confronted directly with these statements when NRDC entered them in the record of the Board's Decemoer 2, 1982 Pre-Hearing Conference at Lacey, Washington. Chairman Wcif asked specifically about the " statement in'the Quarterly Report

... to the effect that the applicant will not proceed if the

[ Northwest Power Planning Council forecast] shows there is a question about the need for power." Mr. Thomson, for Applicants, acknowledged the Quarterly report and stated: "I remember it being quoted in Mr. Cavanagh's brief last May." Chairman Wolf then asked if "this was some new stance that was taken by the applicant." Mr. Thomsen replied, "it was taken last Fall, and as far as I know it still is the stance." Transcript at pp. 111-112.

Applicants are now in no position to deny that the Council's forecast is dispositive on the need for power issue.

Conclusion ,

All four independent demand forecasts in the record demonstrate that there is no need for;the power from Skagit/Hanford over the next two decades.* Assuming arguendo

, that Applicants contend that a need for Skagit/Hanford may develop at or beyond the close of that period, they cannot prevail here. A showing of speculative need is not sufficient to

• The discovery process has elicited no other regional forecasts prepared independently of Applicants and the Pacific Northwest Utilities Conference Committee (to which Applicants belong).

• O o-defeat this motion; there is no way to determine, consistent with NEPA, whether environmentally preferable alternatives will become available in the interim. Given the exclusion of Skagit/Hanford from the Regional Council's plan, and the other evidence summarized above, Contention.1 no longer presents an issue in controversy, and this Motion for summary disposition ~should be granted.

Respectfully submitted,

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'Ralpr Cavanagh U Attorney for the Natural Resources Defense Council, Inc.

25 Kearny Street San Francisco CA 94108 Telephone: (415) 421-6561 i

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. .g l i UNITED STATES OF A) M __

NUCLEAR REGULATORY COMMISSION ~

BEFORE THE ATOMIC SAFETY ANb' I. CENSING BOARD In the Matter of EI CKET NOs'. STN 50-522 SOUND POWER & LIGHT COMPANY, \ STN 50-523 PUGE ,

'DATE: May 12, 1983

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(Skagit/Hanford Nuclear Project) )

CERTIFICATE OF SERVICE I hereby certify that the following:

1. *ntervenors' Motion For Summary Disposition Of Contention 1;

2. Intervenors' Statement Of Material Facts As To Which There Is No Genuine Issue To Be Heard On Contention 1;

3. Affidavit Of David B. Goldsteir. In Support Of Inter-venors' Motion For Summary Disposition Of Contention 1, and Exhibits thereto;

4. Memorandum Of Points And Authorities In Support Of Intervenors' Motion For Summary Dispcsition Of Contention 1; in the above-captioned proceeding have' been served upon the persons shown on the attached list by depositing copies thereof in the I

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l United States mail on May 12, 1983 with proper postage affixed for first class mail.

J nice Cornwell eural Resources Defense Council 25 Kearny Street San Francisco CA 94108 Telephone: (415) 421-6561 d

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NRC Service List COMMISSION Secretary of the Comission Docketing and Service Branch U.S. Nuclear Regulatory Comission Washington, D.C. 20555 LICENSING BOARD Jonn F. Wolf, Esq., Chairman Administrative Judge Atomic Safety and Licensing Board 3409 Shepherd Street Chevy Chase, MD 20015 Dr. Frank F. Hooper Administrative Judge Atomic Safety and Licensing Board School of Natural Resources University of Michigan Ann Arbor, MI 48190 Mr. Gustave A. Linenberger Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Washington, D.C. 20555 APPEAL BOARD Stepnen F. Eilperin, Esq., Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Christine N. Kohl Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Dr. Reginald L. Gotchy Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, D.C. 20555 NRC STAFF Lee Scott Dewey, Esq. -

Counsel for the NRC Staff Office of the Executive Legal Director

' U.S. Nuclear Regulatory Comission Washington, D.C. 20555

g Richard D. Bach, Esq.

Stoel, Rives, Boley, Fraser & Wyse 2300 Georgia Pacific Building 900 S.W. Fifth Avenue Portland, OR 97204 INTERVENORS Nina Sell Coalition for Safe Power Suite 527, Governor Building 408 S.W. Second Avenue Portland, OR 97204 Ralph Cavanagh, Esq.

Natural Resources Defense Council 25 Kearny Street San Francisco, CA 94108 James 8. Hovis, Esq.

Yakima Indian Nation P.O. Box 487 Yakima, WA 98907 Terence L. Thatcher, Esq.

NWF and OEC 708 Dekum Building 519 S.W. Third Avenue Portland, OR 97204 Robert C. Lothrop .

Columbia River Inter-Tribal Fish Commission Suite 320 8383 N.E. Sandy Boulevard Portland, OR 97220 ,

OTHER Canadian Consulate General Donald Martens, Consul 412 Plaza 600 Sixth and Stewart Streets Seattle, WA 98101