ML20040D581
| ML20040D581 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 01/28/1982 |
| From: | Finamore B, Greenberg E National Resources Defense Council, Sierra Club, TUTTLE & TAYLOR |
| To: | |
| Shared Package | |
| ML20040D580 | List: |
| References | |
| NUDOCS 8202020045 | |
| Download: ML20040D581 (14) | |
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'82 J.:" 28 P,153 Before the UNITED STATES NUCLEAR REGULATORY COMMISSION L
Washington, D.C.
20555 In the Matter of
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UNITED STATES DEPARTMENT OF ENERGY
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PROJECT MANAGEMENT CORPORATION
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TENNESSEE VALLEY AUTHORITY
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Docket No. 50-537
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(Clinch River Breeder Reactor Plant)
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SUPPLEMENTAL COMMENTS OF THE NATURAL RESOURCES DEFENSE COUNCIL, INC. AND THE SIERRA CLUB IN OPPOSITION TO APPLICANTS' EXEMPTION REQUEST UNDER 10 CFR $50.12 Intervenors, Natural Resources Defense Council, Inc. and the Sierra Club ("Intervenors"), file these supplemental commenta in order to respond briefly to several points presented in Applicants' Answers to Questions Set Forth in Attachment A to the Commission's Deceober 24, 1981, Order (hereinafter cited as " App.
Ans.").
In the following paragraphs, Intervenors underscore that (1) there is no " mandate" for the Commission to act favorably on Applicants' exemption request; (2) asserted " costs of delay" are without foundation; and (3) site redress has not been shown to be feasible or as inexpensive as Applicants claim.
Intervenors conclude by noting that no adverse effects on the project will r20202OO45 820128 PDR ADOCK 05000537 0
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follow if the exemption request is not approved. 1/
I. Applicants Have Failed To Demonstrate That There Is Any Mandate To Grant An Exemption Under 10 CFR $50.12 1
l In their presentation of January 18, Applicants make no a
effort to rebut two fundamental legislative truths:
Congress has made the demonstration of licensability a central element of the Clinch River Breeder Reactor ("CRBR") project, and Congress has at no time suggested that deviations from standard licensing 1/
While Intervenors will not touch directly in these comments on the environmental effects which may be associated with site preparation activities, it is worth noting that Applicants themselves candidly admit, in response to Question 5 of the i
Comnission, that numerous sections of the Final Environmental Statement, issued in February, 1977 (the "FES"), need updating.
See App. Ans., Table 1, at 15-18.
This is so even if the only environmental effects of concern are those related to site preparation activities.
Further, omissions in even Applicants' environmental analysis remain, such as the failure of the SPAR to mention the presence of radioactive wastes in Clinch River sediment resulting from Oak Ridge National Laboratory activities, i
which are likely to be disturbed and redistributed by proposed dredging of the river bank and pumping of river water.
- Finally, i
changes in the scope of site preparation activities result from significant modifications of plant design, relating to both the
" nuclear island foundation" and "certain portions of the balance-of-plant".
App. Ans. at 26, 27.
There are thus the strongest reasons to conclude that, until updating of the FES is complete, the. exemption sought by Applicants is not justified under the National Environmental Policy Act of 1969, 42 U.S.C.
S4321 et ase.
See generally Intervenors' Comments of January 18, 1982, at W-30.
1
~
.. 2/
To counter this history, all practice are warranted.
that Applicants have to offer is a' general statement by the Presi-dent that the CRBR should be " completed" and a hortatory phrase in a conference report which says nothing about exemptions from normal licensing procedures. 3/
Such a showing is plainly 2/
The most recent congressional report on authorization of appropriations for the Commission reemphasizes the Commicsion's licensing responsibility:
The NRC now has the authority to license the Clinch River Breeder Reactor, if authorized to be built, or any other breeder reactors intended to demonstrate the commercial viability of breeder technology.
The Committee expects and intends that any such reactors will be licensed by NRC.
S. Rep. No.97-113, 97th Cong., 1st Sess. 20 (May 15, 1981).
Intervencrs would also point out that quite contrary to Applicants' characterization, see App. Ans, at 5-6, note, Intervenors do not rely on post-enactment statements of members of Congress for their interpretation of legislative history.
They rely on what Congress in fact did in its authorizations and appropriations for the CRBR.
See Intervenors' Comments of January 18, 1982, at 9-18.
However, this does not mean that the post-enactment statements of such members of Congress as Senators Tsongas, Humphrey, Bumpers, Bradley and Hart should be ignored.
It is well-recognized that such near-contemporaneous expressions of congressional understanding of the scope and purpose of legislation are useful in divining the intent of Congress.
See Cannon v.' Univ. of Chicago, 441 U.S. 677, 686 n. 7 (1979).
3/
Applicants mischaracterize the legislative history when they refer to Congress having urged " expeditious completion" of the CRBR "in each of the past four years".
App. Ans. at 5.
In fact, the term " expeditious" only appears in the 1981 Conference Report on the Omnibus Budget Reconciliation Act.
- Further, it should be emphasized that sponsorssof this legislation never mentioned regulatory exemptions in floor debate.
In any event,
" remarks of the single legislator, even a sponsor, are not controlling in analyzing legislative history."
Chrysler Coro. v.
Brown, 448 U.S.
281, 311 (1979).
- insufficient to support the dramatic conclusion that Congress has mandated or even encouraged extraordinary relief from the Commission's standard licensing practice.
Applicants contend that 'there is "no [ statutory]
prohibition on the Commission's use of Section 50.12", App. Ans.
at 2, and that under Section 104b. of the Atomic Energy Act of 1954, as amended, 42 U.S.C. S2134b., the Commission can only apply
" minimum" conditions to the licensing of the CRBR, App. Ans. at 3.
These arguments are essentially beside the point.
As Intervenors have demonstrated, even a conventional light water reactor in the licensing posture of the CRBR would not be considered eligible for the emergency relief which Applicants seek under 10 CFR 550.12.
See Intervenors' Comments of January 18, 1982, at 4-7.
Cf.
Washington Public Power Supply System (WPPSS Nuclear Project Nos.
3 and 5), CLI-77-11, 5 NRC 719 (1977).
That exemption simply has little applicability in the post-1974 licensing context.
- Further, it is impossible to conclude from general language written into a statute in 1954 that a subsequent regulatory exemption, designed primarily to bring conventional light water reactors on line to meet consumer needs, should have any application to a project which, by its own terms, is not intended to meet those needs. d/
Finally, rigorous adherence to standard licensing S/
In any event, a license issued under Section 104 must otherwise be consistent with the Commission's legal c511gations, and, given the objective of the CRBR project to demonstrate licensability, it is difficult to understand how this objective can be met if regulatory exemptions are to be granted.
aa
. practice does not, as Applicants suggest, involve second-guessing the Administration or the Congress on the "need" for the CRBR.
i See App. Ans. at 8.
Whether or not there is a "need" for the CRBR as such is not at issue in this proceeding.
Rather, the issue here relates to the way in which the Commission must conduct its independent licensing review so as to meet its statutory responsibilities to protect the environment, the health and safety of the public and the common defense and security.
In our judgment, the extraordinary exemption sought by Applicants is fundamentally incompatible with the kind of review of the CRBR which Congress contemplated, and, therefore, Applicants' request must be rejected by the Commission.
II.
Applicants' Postulated " Delay Costs" Are Without Foundation In addition to inflation, which Applicants concede constitutes approximately one-half of their computation of
" delay" costs, see App. Ans. at 43-44, and which we have demonstrated is not a real cost to the project, see Intervenors'-
Comments of January 18, 1982, at 32-34, Tab A, Applicants now assert that there are two other cost factors which must be taken I
into account -- interest on capital, App. Ans. at 45-46, and
" unavoidable" management activities, App. Ans. at 41-42.
The costs they postulate, however, are without foundation.
Applicants' argument that failure to receive an exemp-tion under 10 CFR 550.12 will result in additional interest charges on capital is entirely spurious.
As is pointed out in the i
I
attached supplemental statement of Charles Komanoff (Tab A),
"[T]he future rate and level of expenditures on CRBRP have no bearing on the cost of past expenditures."
Applicants' capital investments in the project are essentially sunk costs.
They will have to pay interest on these investments at the same rate regardless of the project's start-up date.
Put another way, "There is no linkage whatsoever between progress of CRBRP and the Government's obligation to pay fixed costs of financing past expenditures." 5/
Equally unpersuasive are Applicants' contentions with respect to " unavoidable" project management activities.
While Applicants' Answers devote almost 30 pages to these activities, see App. Ans. at 48-77, that presentation contains little more E! While interest expenses might be capitalized in a rate-making context, that is not relevant here.
As Mr. Komanoff
- notes, (A]1though inclusion of interest costs does add to a project's calculated capital cost, it does not add to the net societal cost of a project.
Interest costs are society's means of placing the responsibility for costs during construction upon the contractor.
At completion the ratepayer bears the higher project cost due r
to interest, but this is offset by the ratepayer's avoidance of cost resp 0nsibility during construction.
The offset <") ely equals i
the cost if ratepayers' and cont'A ar s interest costs are equal, and n er'eeds the cost (i.e., delay is benefi(1.! v etepayers)
C if ratepayers' interest cost., art gedater.
s
. than unsupported -- and questionable -- conclusions. 5/
Throughout the presentation there is virtually no explanation of the methodology employed for determining that certain activities are " unavoidable".
There is, further, little effort to explain why staffs cannot be reduced or what the quantitative effects of staff reductions on program output would be.
In the absence of such explanations, there is an insufficient basis for concluding that such costs are significant.
Examples of Applicants' reliance on bald conclusions, without underlying facts, abound.
For example, with respect to the CRBR Project Office, Applicants simply state that management activities "must continue", App. Ans. at 51, and that it is "es;ential" to maintain a " substantial level of program management staff".
Id.
While Applicants assert that they have calculated increased costs by reducing staffing levels "to the minimum number of personnel necessary to maintain the project during the delay",
id., they never explain how this was done, nor do they provide any quantitative justification for projected staffing levels.
Similar problems apply to the analysis of the role of Westinghouse Electric Corporation, which is to provide the Nuclear Steam Supply System.
Reductions in staffing, Applicants state, would "not be practical or cost effective".
App. Ans. at 57.
Why?
Because present staffing levels are "necessary to maintain 5/
Applicants' indulgence in this kind of armwaving vividly demonstrates why an adjudicatory hearing would be needed before the Commission could grant an exemption under Section 50.12.
I
. the Project during the delay period" and "necessary to provide the required level of assistance during construction and licensing".
Id.
These, of course, are just Applicants' conclusions.
The reader (and the Commission) has no basis for understanding how they were arrived at or whether they are accurate.
Likewise, when Applicants state that "the loss of continuity and resultant inef-ficiencies", which would theoretically arise from disbanding staff, "will have a significant, adverse impact on the remainder of the Project", id. at 58, there is no indication what those inefficiencies or adverse impacts are.
" Unavoidable" activities of Stone and Webster Engineering Corporation are presented in the same man-ner. 2/
" Substantial reductions are not possible",
id. at 62, because they would result in " loss of continuity",
" resultant inefficiencies", and "significant adverse impact on the start of construction".
Id.
But it is impossible to evaluate the l
validity of these assertions without detailed information about who precisely will be doing what during the licensing period and l
without any presentation of the methodology for calculating 2/
too, with others involved in the project.
So, Thus, Westinghouse RM, AI and GE are characterized as having activities which "must" continue, App. Ans. at 69, 70, and Burns and Roe "must maintain" a certain staf fing level.
App. Ans. at 77.
No attempt is made to explain how needed staffing levels were calculated.
l l
l I
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. proje'et management needs. 8/
Finally, as pointed out in the supplemental statement of Charles Komanoff, it is hard to avoid a sneaking suspicion that Applicants' presentation is overstating costs and neglecting offsetting benefits.
For example, while the bulk of Westing-house's work appears to relate to design, see App. Ans. at 56, according to Applicants' own estimates, design is " approaching 90 percent completion".
See Applicants' Submission of December 31, 1981, Attachment A, at 13.
One would assume that, if design is so far advanced, then some reduction in staffing levels can be accom-modated.
The same analysis applies to research and development activities, which Applicants estimate to be "95 percent complete ".
Id.
Further, there appears to be an assumption built into the discussion of staff use that beneficial activities cannot be accomplished during the licensing period.
Yet, as we have pointed out previously, see Intervenors' Comments of January 18, 1982, at 35-36, 42-43, productive work, particularly in the design and research and development areas, can be accomplished while the j
licensing process is underway, and this work may result in project 8/
Applicants' presentation of costs not related to personnel also deserves skepticism.
For example, at page 65, note, it appears that Stone and Webster's rate was computed, in part, through adding allowances for computer and office expenses based on per month current expenditures.
Just why any computer expenditures would be added into the calculation of delay, if no additional computer time were needed, is unexplained.
l
. benefits in the long term. E/
Nowhere are these taken into account.
In sum, while " unavoidable" management costs might, in some circumstances, be relevant to consideration of the impact of delay, the Commission can have no confidence in the figures put forward by Applicants in this proceeding. 3S!
Certainly the Commission cannot accept them as a basis for granting an exemption under Section 50.12.
III.
Applicants Underestimate the Feasibility and Cost of Site Redress In Question 10, the Commission directed Applicants to provide the documented basis, criteria and project scope to support the cost estimates for redressing the site, should the project be terminated.
Applicants' response severely underesti-mates the feasibility and cost of site redress, since it inter-prets the term " redress" in an extremely limited fashion.
E/
Furthermore, the licensing process itself may generate new information and reveal previously undetected prob-lems, allowing important project improvements before construction begins.
ES/
Such conclusions regarding Applicants' asserted management costs are supported by a January 27, 1982 memorandum to Rep. John D.
Dingell, Chairman of the House Energy and Commerce Subcommittee on Oversight and Investigations, from staff investigator A. E.
Fitzgerald (attached at Tab B).
Mr. Fitzgerald points out that the graphs used by Applicants to " demonstrate" the need for certain manpower levels are nothing more than graphic assertions, and questions the use of manyear cost estimates as high as $110,500 "even for people working on the fringes of man's knowledge".
Fitzgerald suggests that a thorough outside quantification of Applicants' cost figures is necessary.
. Applicants base their estimated $6.8 million redress cost on the premise that most of the construction and access fa-cilities would not have to be removed during redress.
They claim that since the site is " dedicated" to industrial use, they could leave intact the construction utilities, tamporary buildings, access road, impounding ponds, railroad spur and barge f acilities, and would not be required to restore the site to its approximate original contours.
Such an approach misinterprets the requirements of site redressability for several reasons.
First, Section 50.12(b) (2) contemplates a commitment by Applicants to restore the site to a condition as nearly approach-ing its original condition as possible, not a transformation to a completely new use.
The Commission has defined " redress" to mean a full " restoring" of the site.
See Duquesne Light Co., Ohio Edison Co., Pennsylvania Power Co., The Cleveland Electric Illuminating Co., The Toledo Edison Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-74-69, 8 AEC 538, 571 (1974);
Washington Public Power Supply System (WPPSS Nuclear Projects No.
3 and No. 5), LBP-77-15, 5 NRC 643, 647 (1977).
Indeed, in Shearon Harris, the case most heavily relied upon by Applicants, the Atomic Safety and Licensing Board is even more explicit:
[T]he Board's view of the redress referred to in S50.12 is that of restoring an area to reasonable environmental similarity to that of the immediately surrounding terrain and foliage
. The Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4 ), LBP-74-18, 7 AEC 538, 541 (1974).
In this case, the proposed site is an undeveloped, wood-land area surrounded by mostly forested land with some small farms, in a locale characterized by " steep limestone ridges, hills and knobs".
SPAR at 2-4, 2-8.
Much of the site is presently managed for forest production and used for ecological and biologi-l cal research.
Id. at 2-16.
Redress therefore means removal of all structures and facilities, and restoration of a reasonable amount of natural contour, to ensure compatibility with the l
surrounding area.
These actions would substantially increase the cost of redress ana raise serious questions regarding feasibility. 13/
1 l
Second, even if it were appropriate for Applicants to rely upon a proposed future use of the site, they have not demon-strated that the site 'would actually be used for industrial pur-poses.
Since, as noted above and in Intervenors' comments of January 18 (Tab B at 5), much of the proposed site is dedicated to
" study areas" for hardwood and unusual vegetation, Applicants' 13!
Even accepting, for purposes of argument, Appli-l cants' definition of " redress," miscalculations and unsubstantia-ted cost figures in Applicants' response demand that those figures l
be viewed skeptically.
For example, not only have Applicants i
admitted that the SPAR redress cost was miscalculated, but their latest response now indicates that the salvage cost estimates were also misstated.
See App. Ans. at 92.
[
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. failure to make such a demonstration undercuts their entire presentation. J2/
IV.
A Decision Not To Grant The Exemption Will Have No Adverse Impact On The Status Of The Project Perhaps the most revealing section in Applicants' Answers is the portion dealing with the need to move ahead with site preparation activities in March, 1982.
See App. Ans. at 95-97.
Quite simply, Applicants assert that they must be allowed to go forward with site preparation activities in March, 1982, because they will be ready to do so.
This type of reasoning would turn the Section 50.12 exemption on its head.
If an applicant could secure an exemption simply by going ahead and making itself ready to begin site preparation activities, then an exemption would be granted in every case.
The argument that the project will be dead in the water in March, 1982, is unadorned bootstrapping ~- all that will in fact be " dead in the water" in March, 1982, are site preparation activities.
It is hard to imagine a more fanciful justification for granting extraordinary relief from the Commission's licensing regulations.
12/
Under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. S1201 et Jse for example, operators requesting a variance from normal reclamation requirements must demonstrate concretely that the proposed industrial use is locally approved, feasible, maintainable, and environmentally acceptable.
30 CFR 5816.133(c).
. V.
Conclusion.
In sum, Applicants' Answers of January 18 confirm Intervenors' position that the exemption request must be denied.
Respectfully submitted, Eldon V. C. Greenber TUTTLE & TAYLOR 1901 L Street Washington, D.C.
20036 (202) 861-0666
- MW Barbara A.
Finamore S. Jacob Scherr Natural Resources Defense Council, Inc.
1725 Eye Street, N.W.
Washington, D.C.
20006
(
(202) 223-8210 Attorneys for Intervenors Natural Resources Defense Council, Inc., and the Sierra Club Dated:
January 28, 1982 Washington, D.C.
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