ML20041E154
| ML20041E154 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 03/08/1982 |
| From: | Black R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8203100198 | |
| Download: ML20041E154 (10) | |
Text
.
03/08/82 UNITED STATES OF AliERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY Afl0 LICENSING BOARD y
y In the Matter of Docket No. 50-4 h ndCEN4D g
HOUSTON LIGHTING Afl0 POWER C0ftPANY g
ggg y 1 (Allens Creek Nuclear Generating
)
@' \\ ug(uQx7 J Station, Unit 1)
)
x
,\\h' hRC STAFF RESPONSE Ill OPPOSITION TO MARRACK'S NOTION FOR CONTINUANCE OF HEARING I.
INTRODUCTION On February 18,1982,1/ Intervenor Dr. Marrack filed a document entitled " Motion for Review of Dates For Re-opening Hearing And Contintence."
(Sic) The motion seeks a postponetnt of all further action on this con-struction permit application including a continuance of the reopened hearing scheduled to commence on April 12, 1982 until such time as the Applicant states that it is " irrevocably committed to build the ACNGS." This motion is predicated on the Applicant's public announcement on February 12, 1982,El that it was reevaluating the feasibility of continuing the Allens Creek project. The NRC Staff opposes the motion and submits that it should be denied for the following reasons.
1/
The Motion's certiricate of service is dated February 15, 1982.
-2/
Dr. Marrack's motion indicated that the news release was on February 5, 1982. However, it appears that HL&P announced its reevaluation of the Allens Creek project on February 12, 1982.
See attached copy of a letter from J. H. Goldberg, HL&P, to fir. HaroTC Denton, NRC, dated February 12, 1982.
DESTC?!/Tm 050 m 7, Cc-riy h_y 8203100198 820308 PDR ADOCK 05000466 C
1
. II. DISCUSSION Dr. Marrack's abbreviated motion asks that "all further action on this Permit Application be postponed until such time as Applicant states in writing that he is irrevocably committed to build the ACNGS should he receive a construction permit to do so."
[ sic]
To the extent the motion might be interpreted to seek an order directing the Staff to cease its regulatory review function on this application, the Licensing Board lacks that authority. As stated in Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 202 (1978):
It is a virtual watchword of the Comission's system that "[t]he responsibilities of the boards are independent of those of the staff." Citing Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, linits 1 and 2), ALAB-298, 2 NRC 730, 737 (1975).
Thus, adjudicatory boards lack the power to direct the Staff in the performance of its independent responsibilities and, under the Commission's regulatory scheme, boards cannot direct the Staff to suspend review of an application. See New England Power Co. (NEP, Units 1 and 2), LBP-78-9, 7 NRC 271, 278-79 (1978).
To the extent Dr.11 arrack seeks a Board order directing the continuance of any further evidentiary hearings in this proceeding until an irrevocable commitment to construct the facility is received from the
. Applicantitshouldalsobedenied.E There can be no doubt that a licensing board has the general authority to " regulate the course of the hearing."
10 C.F.R. % 2.718(e). This authority extends to a determination as to when a particular hearing should take place. Long Island Lighting Co.
(Shoreham Nuclear Power Station), ALAB-39, 4 AEC 727 (1971). The question presented here, however, is whether the Licensing Board should postpone or defer the commencement of the reopened hearing on technical qualifi-cations until such time as the Applicant irrevocably commits to proceed with the project. To decide the merits of this request, it must be initially determined whether there is a legislative or administrative mandate embodied in NRC practice which would require the deferral of evidentiary hearings until an " irrevocable commitment" to the project is made.
In Potonac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-277, 1 NRC 539 (1975), a question was decided regarding whether evidentiary hearings should proceed where applicant had definitely announced a postponement of construction and operation by several years. The Appeal Board first decided that
--3/
The substance of this motion might be considered similar to a request for a stay filed pursuant te the provisions of 10 C.F.R. 62.788(e). However, since the mo',1on does not seek a stay pending appellate review of a Board decision or action, the regulation does not strictly apply. However, the criteria to be considered in judging the merits of the motion -- i.e., whether the movant will be irrepcrably injured if tha continuance is not allowed; consideration of harm to other parties; and consideration of the public interest
-- are similar. Cf. Allied-General Nuclear Services (Barnwell Nuclear Fuel PlanFSeparations Facility), ALAB-296, 2 NRC 671 (1975) where the Appeal Board held that the traditional stay factors should be considered on appeal in determining whether proceedings before another tribunal should be stayed.
. there was nothing in the Atomic Energy Act, NEPA, or the Commission's regulations which required that the contiencement of hearings "must await the approach of the time at which the applicant will wish to obtain a limited work authorization or construction permit."
Id_. at 545.
Accordingly, the deferral of evidentiary hearings is not required, as a natter of law, until an " irrevocable comitment" to proceed is obtained.
See also Wisconsin Electric Power Co. (Koshkonong Nuclear Plant, Units 1 and 2), CLI-75-2, 1 NRC 39 (1975) where the Comission held that the deferral of a plant which has been noticed for hearing does not necessarily mean that hearings should be postponed.
Although the Appeal Board recognized that rigid scheduling criteria were not established by statute or legislation, the absence of such criteria suggested that licensing boards should be free to decide the merits of proceeding with evihntiary hearings after weighing the circunstances of each individual case. Thus, the Appeal Board left that discretion to the licensing boards, but suggested that three principal factors should be considered when deciding whether to defer the proceedings:
1)
The degree of likelihood that any early findings on the issue (s) would retain their validity; 2)
The advantage, if any, to the public interest and to the litigants in having an early, if not necessarily conclusive, resolution of the issue (s);
and 3)
The extent to which the hearing of the issue (s) at an early stage would, particularly if the issue (s) were later reopened because of supervening developments, occasion prejudice to one or more of the litigants. Douglas Point, supra at 547.
O
. Dr. Harrack's motion has not attempted to address these factors in any detail. Be that as it may, we believe that the Board should deny the motion based upon its own consideratin of these factual and equitable factors.
A.
Validity of early findings The only issue left for consideration in the reopened hearing is the Applicant's technical qualifications to design and construct the ACNGS, particularly in light of the recently published Quadrex Reports. See Board's Memorandum and Order, dated January 28, 1982.
There is nothing on the record which would indicate that any finding with respect to this issue would change materially over time. To the contrary, the gravamen of the reopened issue concerns matters that occurred in the past rather than issues which might be subject to change in the future.
Thus it is logical to assume that any alleged deficiencies in the Applicant's management or technical competence which were highlighted in the Quadrex Reports would be corrected and stay corrected. Accordingly, any Board l
findings pertaining to cured deficiencies in the Applicant's organization would, in all likelihood, retain their validity.
l B.
Public interest in seeking early resolution The crux of this factor to be applied for this motion is whether public interest considerations weigh in favor of continuing these proceedings to their conclusion in light of the announced economic and i
l l
O
. financial uncertainties surrounding the project. Dr. Harrack believes that a postponement is required in order to reduce expenditures of additional public monies. The Staff disagrees.
This proceeding is near conclusion. There have been 87 days of hearing.
It appears that only several more days of hearing are required to conclude the evidentiary segment. Proposed findings from all parties except TexPirg have been submitted and the reopened hearing will probably generate only minor changes to existing proposed findings. Thus, additional expenditures of public resources will be minimal. These additional public expenditures have to be compared with the potential cnsts of delay if this proceeding is postponed and the advisability of now concluding this long-continuing proceeding.
Based on the most recent announcement, it appears that ACNGS is still a viable project in light of current or projected economic and financial conditions. The application for a construction permit has not been withdrawn or terminated in any way. Accordingly, a valid ap-plication is still before the NRC for review and approval.
It is NRC practice to continue the review of any application that has not been infomally or formally withdrawn. Speculation with respect to the viability of ACNGS is and will be rampant. However, it is not in the public interest to substitute speculation for a utility's best " business judgment" regarding the long-term economic and financial feasibility of a nuclear project. This type of speculation is not required under the Atomic Energy Act, NRC regulations, or the provisions of the National
e Environmental Policy Act and should not be contemplated here.S/
Accordingly, the public interest is served by processing this valid application as expeditiously as possible.
C.
Prejudice to litigants The holding of further hearings might undeniably result in some degree of inconvenience and additional expense to one or more of the intervenors. However, Staff cannot imagine that this inconvenience and expense would be large given the very limited nature and extent of the reopened hearing. Certainly this possible inconvenience and expense is not tantamount to prejudice.
C_f. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-212, 7 AEC 986, 993(1974).5_/
-4/
NRC regulatory requirements do not require a demonstration of certainty in long-term financial forecasting. The Applicant, of course, has to satisfy the financial requirements of 10 C.F.R. 5 50.33(f) which basically require that it demonstrate reasonable assurance of obtaining the necessary funds to cover estimated constructior. and fuel cycle costs. The Applicant and Staff have concluded that a reasonable financing plan in light of relevant circumstances has been demonstrated for this application.
(See Applicant's Proposed Findings of Fact and Conclusions of Law (1s 14-23), dated January 8, 1982.) See also Public Service Cnmpany of New Hampshire (Seabrook Station, Units 1 and 2),
CLI-78-1, 7 NRC 1 (1978); NRC Proposed Rule on Financial Qualifications, 46 Fed. Reg. 41786 (Aug. 18, 1981).
-5/
In addition, litigation expense and other time and energy ex-penditures have been held not to constitute irreparable injury in stay applications. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-395, 5 NRC 772, 779 (1977); Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621, 625 (1977).
Furthermore, the Appeal Board has noted that a stay application which does not even attempt to make a showing of irreparable injury is virtually assured of failure. Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-505, 8 NRC 527, 530 (1978).
l 1
i
. On the other hand, indefinite deferral of this proceeding could work a substantial prejudice on the Applicant. Not only would nomentum toward a decision-date be lost, but the Applicant alleges that it will be " unable to rely upon a reasonably certain licensing date in making rational planning decisions affecting this project." " Applicant's Response to Marrack's Motion for Review of Dates for Reopening Hearings and Continuance," dated liarch 1,1982, p. 3.
This prejudice outweighs the inconvenience and minor expense borne by the other litigants if the reopened hearing proceeds.
In conclusion, the gist of the above arguments is that the public interest could possibly suffer if the Applicant narrows its list of viable energy options because of regulatory delays.
In matters of scheduling, the paramount consideration is the public interest. The public interest is usually served by as rapid a decision as possible consistent with everyone's opportunity to be heard. Douglas Point, supra at 552. These public interest consideratons and the absence of any prejudice to the intervenors r.andate that this request for an indefinite postponement of the scheduled hearings be denied.
III. CONCLUSION For the above stated reasons, the NRC Staff submits that Dr. Marrack's motion must be denied.
Res ectfully submitted, kd dichardL. Black Counsel for NRC Staff Dated at Bethesda, Maryland this 8th day of March,1982.
9 Houston LIonTINO & Powza CoNPANT t
P.O. Box 1700 Housrow,Tzus nooi G. W. o ents,J n.
February 12, 1982
- c..c e~. v.c...... -
.4 k
50- h CEI/ED 9
3 FES.
8gg'i 7*
Mr. Harold Denton, Director f
D, -sar Office of Nuclear Reactor Regulation
+'c U. S. Nuclear Regulatory Commission e
7920 Norfolk Avenue f'
'#'..A Bethesda, Maryland 20555
Dear Mr. Denton:
During my conversation with you on February 9,1982, I notified you that Houston Lighting f, Power Company was in the process of re-evaluating the feasibility of continuing the Allens Creek project and I made mention of a news release and the timing for such release. Attached is a copy of the release which was issued this date to the news media.
As I indicated during our meeting, the final decision as to the outcome of the Allens Creek project could take a few months.
However, I will keep you informed should anything significant materialize during the interim.
Very uty y ur
(
,/
a GWO/sra Attachment cc:
J. H. Goldberg G. Copeland gY
,bU fa\\
s r
t 4
'82021801-ipe20212-l PDR~ADOCK 05000
w 1~ News from Houston Light.ing& PowerCompany y ELECTRIC TOWE R HOUSTON, TEXAS 77001 FOR FURTHER INFORMATION PLE AsE CONTACT:
FOR RELEASE:
Graham Painter (713) 229-7125 Houston Lighting & Power Company announced today that it is reevaluating plans for its Allens Creek Nuclear Generating Station. Originally announced in 1972, the plant is still in the Federal licensing process and not yet under construction.
Citing uncertainties in maintaining construction schedules and cost estimates, HL&P President Don D. Jordan said all options are being explored to manage Houston's electricity needs in the 1990's when Allens Creek is scheduled for completion. These options include completion of Allens Creek in its present form, use of the Allens Creek site for a coal plant, and possibilities available to recover as much of HL&P's investment in the project as possible, including the sale of major equipment components already purchased.
HL&P 'as had an application for a construction permit for the Allens Creek facility pending before the U. S. Nuclear Regulatory Commission since 1977.
Since that time, soaring interest rates, inflation, changing Federal requirements and regulatory delays have driven up the price of nuclear construction. The Aliens Creek cost estimate has grown from approximately $600 million per unit l
l in 1972 to over $2 billion per unit today.
I HL&P's financial position is such that it must continually reassess its ability to raise the money necessary to maintain its huge construction program.
"Allens Creek was a prudent, workable project when it was conceived a decade ago," Jordan said, "but conditions have changed to the point that reevaluation is necessary." During the study period, Jordan stressed that expenditures associated with.Allens Creek will be reduced to an absolute minimum.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOUSTON LIGHTING AND POWER COMPAW Docket No. 50-466
)
(Allens Creek Nuclear Generating
)
Station, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that conies of "NRC STAFF RESPONSE IN OPPOSITION TO MARRACK'S MOTION FOR CONTINUANCE OF HEARING" 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 Reaulatory Commission's internal mail system, this 8th day of March,1982:
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 Comission Washington, DC 20555 Mr. John F. Doherty 4327 Alconbury Street l'
J. Gregory Copeland, Esq.
Houston, TX 77021 Baker & Botts One Shell Plaza Mr. William J. Schuessler Houston, TX 77002 5810 Darnell Houston, TX 77074
. Jack Newman, Esq.
D. Harrack Lowenstein, Reis, Newman &
420 Mulberry Lane Axelrad Bellaire, TX 77401 1025 Connecticut Avenue, N.W.
Washington, DC 20037 Texas Public Interest Research Group, Inc.
Brenda 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 Bishop U.S. Nuclear Regulatory Comission 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.
Bryan 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 Merrick 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 5
Richard L. 8% ck Counsel for NRC Staff