ML20033B338
| ML20033B338 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 11/27/1981 |
| From: | Black R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8112010271 | |
| Download: ML20033B338 (8) | |
Text
e N
,0
]s s.
c 11/27/81
\\f.' '
~,s UNITED STATES OF AftERICA 4
' j;, /. "l.
NUCLEAR REGULATORY C0!!!!ISSION
, f/ n 1,
[
I,
'I fl J1 M
'( NOV3 01981*k BEFORE THE ATOMIC SAFETY AND LICEH3ING BOARD f 'i {[
{"*w"
- Irr the Matter or
)
f
'/
)
&)
EUSTON LIGHTING AND POWER C0!!PANY )
Docket No. 50-466
)
ig (Ailens' Creek Nuclear Generating
)
Station, Unit 1)
)
\\
s
['
' ARC STAFF.'S RESPONSE T0' INTERVENOR'S DOHERTY'S MOTION FOR ADDITI0:1AL TESTIMONY ON NEED FOR POWER s
On November 6,1981, Intervenor Doherty filed a motion to require
' Appl.icant to submit additional testimony on need for power. The basis of
}
3
- , tr(fs
- doti(d app rently stems from an attached newspaper article which
/\\
U)..
A rep 3rts tMt the City of Austin intends to sell its share of the South j
s.
t i,/ak Pnde:t (STP) nuclear plant in which the Applicant f/
n i, t. -.
, Houston Lighting Te apd kodde,Cfom'paky'(HL&P), is a co-owner. Applicant filed its response in 6pposjtion'j to'tn'is motion on November 20, 1981. The NRC Staff also 1'
V'
- \\)
L urges tt.e(30ard to deny the motion. Our position with respect to this
'1
'\\
g mytigri;b, discussed below.
i ff [e.
i
,1' The environmental portion of this proceeding was completed, with a s,\\.
few ) exceptions, on May 15, 1981. Testimony on the "need for pover"
,,,'p
,\\
$1alysis was presented on February 9,1981 and updated on September 26,
? r, !
. 1 '. 1931. See Testimony of J. D. Guy, foll. Tr. 5198; Testimony of 1 D. Guy
~
eI
<r s
'\\
and John M. Edwards, foll. Tr.16903. The scheduled receipt of tvidence Nw on this issue is now closed. Thus, Mr. Doherty's motion remstirs additional testimony on need for power must be considerJ'd similar to a sf o
"N 6/
812010271!oo
'y ADocx o c,rtified By 4
1\\
==
]'{
. motion to reopen the record. As upon a motion to reopen a record, Mr. Doherty has a heavy burden to show that the motion should be granted.
C_f.
Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1),
~
f ALAB-462, 7 NRC 320, 338 (1978); Duke Power M. (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619, 620 (1976).
In' deciding whether to receive additional evidence, consideration
/
will be given to both the timing of the motion and the significance of I the matter which has been raised. The motion may be denied, even if e
timely (as the Doherty motion), if the matter raised is not grave or significant. Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 and 2),- ALAB-291, 2 NRC 404 (1975); Vemont Yankee Nuclear Power Corp.
(Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973);
Dmont Yankee, ALAB-126, 6 AEC 393 (1973); Vemont Yankee, ALAB-124, 6 AEC 365 (1973). As a general proposition additional evidence should not be requireo merely because some detail involving plant construction or operation has been changed. Rather, to reopen a closed issue to require additional evidence at the request of a party, it must usually be established that a different result would have to be reached should the material be introduced. See, Wolf C reek, supra; Northern Indiana Public Service Co., (Bailly Generating Station, Nuclear-1), ALAB-227, 8 AEC 416, 418 (1974). The late submission of additional evidence has also been ordered where the changed circumstances involved a " hotly contested" issue. Bailly, 1
CLI-74-39, 8 AEC 631 (1974).1]
If It is noted that there is no contention in this proceeding dealing with the need for additional generating capacity.
The Applicant has presented testimony on this' issue to update the need for power analysis in tne ER Supplement.
.r
. In light of the above legal background, a motion to require the submission of additional evidence should be granted only if it can be established that the issue is 'significant and that the Board would reach a different decision on neec for power based on the new information pertaining to STP. With respect to the significance of the "need for power" issue, the NRC has long held that the need for a facility can be demonstrated either by a showing that there is a need for additional generating capacity to produce needed power or by a showing that the nuclear plar.t is needed as a substitute for plants that burn fossil fuels that are in short supply.
New England Coalition on Nuclear Pollution v.
NRC, 582 F.2d 87, 97-98 (1st Cir.1978); Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320, 327 (1978);
Niagara Mohawk Power Corp. (Nine !!ile Point Nuclear Station, Unit 2),
ALAB-254,1 HRC 347, 353-54 (1975). Thus, justification for the need for a facility can be denonstrated by showing the need for the capacity to meet projected demand, or shaving that the facility is needed to replace existing generating facilities that burn scarce or uneconomic fuels.
In this case, t;,e existing record shows that the need for Allens Creek can be established on both of these grounds. See Testimony of J. D. Guy and John M. Edwards, following Tr.16903; Testimony of Lewis Perl, following Tr. 5964, p.13; Testimony of J.W. Dick, foll. Tr. 6227, Table 8.
Thus the questions Mr. Doherty attempts to raise relating to the need for 6
0
,. ~, - -
. additional generating capacity alone do not supply a basis to reopen the record. See, Cleveland Electric Illuminating Co. (Purry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 748-751 (1977); Catawba, supra.
11oreover, it has been held that an issue is not presented which would warrant reopening or supplementing the record each time there is a_ change in the projected supply of or demand for electricity. The Appeal Board has explicitly recognized "that inherent in any forcast of future electrical power demands is a substantial margin of uncertainty."
liine Mile Point, supra at 1 NRC 365; Catawba, supra at 4 NRC 410. Thus, if new information does cot alter or obviate the need for the nuclear facility in question, or where the proffered evidence does not show that the forecast is seriously defective or rests on a fatally flawed foundation, we believe that the issue of "need for power" is not significant enough to warrant supplementing the record.
See Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-490, 8 NRC 234, 240-41 (1978).
In both Perry, supra, and Catawba, supra, the Appeal Board upheld the Licensing Board's denial of motions to reopen and reconsider the need for power issue.
In so doing, the Appeal Board emphasized that litigaticn in administrative proceedings must end at some point, and cited ICC v. Jersey City, 322 U.S. 503, 514 (1944), for the proposition that a record need not be reopened or supplemented on ever changing "need for power" issues "because some new circumstance has arisen, some new trend has been O
W
. observed or some new fact discovered...". See e.g., Perry, supra at 750, 751.
Finally, Mr. Doherty's motion fails to allege how the Board's finding on need for power could be changed by receipt and consideration of this new information. The motion is premised on the assumption that HL&P will ultimately purchase Austin's share of STP which amounts to approximately 385 MW. First, this assumption is faulty in that it is rank speculation to assume that HL&P will ultimately bid on and purchase this share of STP. More importantly, Mr. Doherty has not demonstrated that the purchase of Austin's share of STP by HL&P, if accomplished, would even affect, much less obviate, the need for the 1200 MW to be produced by Allens Creek. At best, it appears that the purchase of 385 MW would only obviate the need for HL&P to purchase power from other sources needed through the 1980's to meet its reserve requirements.
Guy and Edwards, supra, Ex. JDG-1A.
It would not obviate the need for Allens Creek either to meet demand forecasts and reserve requirements or to replace 4389 MW of existing gas-fired capacity.
Id., p. 7.
Accordingly, the motion does not, and probably cannot, demonstrate that HL&P's presumed purchase of Austin's share of STP will cause the Board to render a different decision on the "need for power" issue.2/
2/
As noted above, "need for power" is not a contention in this proceeding.
If the Intervenor intended, by his motion, to add an issee in regard to the need for power," he has failed to comply witn 10 C.F.R. 5 2.714(a) governing late filed contentions.
O
- In summation, Mr. Doherty carries a heavy burden to demonstrate that the "need for power" issue should be supplemented in order for the Board to' receive and consider new evidence pertaining to the City of Austin's intent to sell its share of STP. As discussed above, Mr. Doherty has not attempted to show how this issue is significant enough'to warrant supplementing the record. Not only has he failed to meet this burden.
but he has failed to demonstrate how the existing record, which establishes the need for Allens Creek, would be changed by receipt and consideration of the speculative new information pertaining to STP.
Accordingly, Mr. Doherty's motion should be denied.
Respectfully submitted, M
./
Richard L.'
lack Counsel for NRC Staff Dated at Bethesda, Maryland this 27th day of November,1981.
O
. =.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
HOUSTON LIGHTING AND POWER COMPANY Docket No. 50-466 (Allens Creek Huclear Generating
)
Station, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certity that copies of NRC STAFF'S RESPONSE TO INTERVEN0R'S DOHERTY'S H0 TION FOR ADDITIONAL TESTIMONY ON NEED FOR POWER in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 27th day of November,1981.
Sheldon J. Wolfe, - Esq., Chairman
- Administrative Judge Susan Plettman, Esq.
Atomic Safety and Licensing David Preister, Esq.
Board Panel Texas Attorney General's Office U.S. Nuclear Regulatory Commission P.O. Box 12548, Capitol Station Washington, DC 20555 Austin, TX 78711 Dr. E. Leonard Cheatum Administrative Judge Hon. Jerry Sliva, Mayor Route 3 Box 350A City of Wallis, TX 77485 Watkinsville, Georgia 30677 Hon. John R. Mikeska Mr. Gustave A. Linenberger*
Austin County Judge Administrative Judge P.O. Box 310 Atomic Safety and Licensing Bellville, TX 77418 Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. John F. Doherty 4327 Alconbury Street The Honorable Ron Waters Houston, TX 77021 State Representative, District 79 3620 Washington Avenue, No. 362 Mr. William J. Schuessler Houston, TX 77007 5810 Darnell Houston, TX 77074 J. Gregory Copeland, Esq.
Baker & Botts One Shell Plaza Hous ton,.TX 77002
C Jack Newman, Esq.
D. !! arrack Lowenstein, Reis, Newman &
420 Mulberry Lane Axel rad Bellaire, TX 77401 1025 Connecticut Avenue, N.W.
Washington, DC 20037 Texas Public Interest Research Group, Inc.
B renda A. McCorkle c/o James Scott, Jr., Esq.
6140 Darnell 13935 Ivymount Houston, TX 77074 Sugarland, TX 77478 Mr. Wayne Rentfro Rosemary N. Lemmer P.O. Box 1335 11423 Oak Spring Rosenberg, TX 77471 Houston, TX 77043 Leotis Johnston Carro Hinderstein 1407 Scenic Ridge Houston Bar Center Houston, TX 77043 723 Main Suite 500 Houston, TX 77002 Margaret B ishop U.S. Nuclear Regulatory Commission J. Morgan Bishop Region IV, I&E 11418 Oak Spring 611 Ryan Plaza Drive, Suite 1000 Houston, TX 77043 Arlington, TX 76011 Stephen A. Doggett, Esq.
B ryan L. Baker Pollan, Nicholson & Doggett 1923 Hawthorne P.O. Box 592 Houston, TX 77098 Rosenberg, TX 77471 Robin Griffith
- Carolina Conn 1034 Sally Ann 1414 Scenic Ridge Rosenberg, TX 77471 Houston, TX 77043 Mr. William Perrenod Atomic Safety and Licensing 4070 Herrick Board Panel
- Houston, TX 77025 U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section*
Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Panel
- Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 k
/
RichardL.Kl/ick Counsel for NRC Staff
.