ML20044B708

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Partially Withheld Commission Paper Informing of Interim Decision on 790814 Request for Enforcement Action.Petitioner Has Not Met Heavy Burden Necessary to Reopen Record
ML20044B708
Person / Time
Site: Callaway 
Issue date: 03/31/1980
From: Malsch M
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
Shared Package
ML19290F683 List:
References
FOIA-92-436 SECY-A-80-046, SECY-A-80-46, NUDOCS 9303030169
Download: ML20044B708 (21)


Text

f3 UNIT ED ST AT ES NUCLEAR REGULATORY ceMYt:5loN tf ADJUDICATORY ITEM March 31, 19E0 SEC)'-A-80 46

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i COMMISSIONER ACTION 4

Per:

The Cennissioners 1

from:

Martin G. Malsch

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Deputy Gener.1 Counsel 4

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Subject:

DIRECTOR'S DECISION UNDER 10 C"-R 2.206 t

(UNION ELECTRIC COMPANY)

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Pacility:

Callaway Plant, Unit 2

Purpose:

To inform the Commission of an interim decision i

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on a request for enforcement action which I

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Time Expires:

April 10, 1980.

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Discussion:

By petition dated August 14, 1979, the Public l

Service Commissien of the State of Missouri (PSC) requested the NRC If to issue an order to show cause to suspend the construction permit for Unit!

2 of the Callaway Plant.

The petition is based a j

the PSC staff's preliminary findings which indi 1

cate that.Uniori Electric nay have substantially ' '

j over-estimated its peak demand forecast, which could lead to a two year postpenement of the date.

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".... '" d "2' # f d when the unit will be needed.

See PSC Petition,'

j in 2;rc dance niin the Fnedom of laformation p.

3 The PSC has scheduled a hearin5 to begin ACL e n ; ton

_ _ April 7, 1980 at which the PSC will consider the j

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revised peak forecast for the utility and will t

i determine whether er not to reconsider the certi-l ficate of public convenience and necessity for Unit 2.

A decision is expected in the fall cf 1980.

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The petition was directed to the Oirecters, Cffices cf 4

3 Nuclear Reactor Regulation, Nuclear Material Safety and Safeguards, and Inspection and Enforcement.

The petiti:n was referred to the Director cf iP.R because the sut,'ect I

matter was within the jurisdicti:n cf that offi:e.

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The petition asserts that NRC has a " statutory obligation" under the National Environnental i

Policy Act (NEPA) and 10 CFR 51 to suspend cen-l struction while the facts upon which NRC made its initial need for power finding are reassessed in light of this new-information.,

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staff treated the request ~~for suspensicff as a

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request for a hearing on the construction permit i

and indicated that the petitioner had not met the i

i heavy burden necessary to reopen the record.

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Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), /. LAB-422, 6 NRC 33, 90 (1977).

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Re c on.mer.C at 1 on :

Martin G. halsch Deputy General Counsel Attachments:

1.

Director's Decision 2.

PSC Petition 3

Memorandum, Chilk to Denten 1

i Comissioners' coments should be provided directly to the Office of the Secretary by c.o.b. Wednesday, April 9,1980.

t Conraission Staff Office connents, if any, should be sutenitted t; the Comissioners -

NLT April 4,1980, with an information copy to the Office of t..e Secretary.

If the paper is of such a nature that it requires additional time for analytical review and connent, the Connissioners and the Secretariat should be apprised of when coments may be expected.

DISTRIBUMGii GuissiorE75 Crx:rnission Staff Offices Exec Dir for Operations Secretariat 4

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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0!tilSSION OFFICE OF NUCLEAR REACTOR REGULATION I

HAROLD R. DENTON, DIRECTOR In the Matter of

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Docket No. STN 50-485 UNION ELECTRIC COS.PANY

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(10 CFR 2.206) t IJNTERIM DECISION UTER 10 CFR 2.206 By petition dated August 14, 1979, the Public Service Comission of the f

State of Missouri (hereinafter referred to as PSC) pursuant to 10 CFR 2.206 of the Comission's regulations requested the Director of the Office of Nuclear

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Reactor Regulation, the Director of the Office of Nuclear Material Safety and j

Safeguards, and the Director of the Office of Inspection and Enforcement to.

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issue a show cause order to suspend the construction permit granted to Union 4

Electric Co pany for Callaway Plant, Unit 2.

This matter was referred to the j

Director of the Office of Nuclear-Reactor Regulation because the subject r,atter l

t of the requested action was within the jurisdiction of this office. Notice of j

receipt of the PSC petition was published in the Federal Register, 44 Fed. Reg. 53116 (Sept.12,1979).

l The basis for the PSC's requested action is recent infomation develcoed by j

the PSC (in Preliminary Union Electric Company Peak Demand Projection) which j

indicates that the peak demand forecast of Union Electric. Company may be erroneous.

The PSC states that the National Environmental Policy Act, (NEPA) 42 U.S.C. 4321 i

g seq., and the NRC's regulations implementing NEPA,10 CFR Part 51, require l

i the Comission to consider the environmental effects of the power to be 1

l generated by Callaway Plant, Unit 2.

The PSC contends that in light of the i

recently discovered facts on peak demand forecast, this statutory obligaticn j

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requires che N"C to suspend the construction permit while the facts upon which the permit was initially granted are reassessed.

for the reasons set forth in this decision, I have determined that no final decision on suspension of the construction permit for Callaway Plant, Unit 2 should be e.ade at this time.

A final decision on this matter should await the 1

outcome of the hearings scheduled by the Missouri Public Service Commission for the spring of 1980.

I An examination of the need for the generating capacity of a nuclear power plant is required to fulfill the Commission's obitgations under NEPA.

In a decision in the Seabrook case, Public Service Co. of New Hempshire (Seabrook Station Units 1&2), ALAS 422, 6 NRC 33, 90 (July 26,1977),

the Appeal Board explained:

"Need for power" is a storthand expression for the

" benefit" side of the cost-benefit balance which NEPA r.andates for a proceeding considering the licensing of a nuclear power plant....

A nuclear plant's principal

' benefit' is of course the electric power it generates.

Hence, absent some 'need for power', justification for building a facility is problematical.

Duke Power Co.

(Catawba Nuclear Station, Units 1&2), ALAB-355, 4 NRC 397, 405 (October 29,1976).P l

Not only must the Commission deterg.ine that a need for the genercting capacity of the plant exists, but it must also determine that the need for the plant coincides reasonably with the operational date of'the 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 necessary. The intent of NEPA is that any irretrievable s

1 j and irreversible comitments of resources should not be #.ade while environmentally less damaging alternatives may exist or may be developed. Cf. Scientists' Institute for Public Infomation, Inc. v. AEC, 481 F.2d 1979 (D.C. Cir.1973).

e The Commissicn has recogni:ed, however, that some uncertainty is inherent in any prediction of the need for or demand for the electricity to be generated by a nuclear plant.

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"[E)very predict. has an associated uncertainty and

...long range for easts of this type are especially uncertain in that. hey are affected by trends in usage, increasing rates, demgraphic changes, industrial coth or decline, the general state of the economy etc. These factors exist even beyond the uncertainty that inheres in demand forecasts: assumptions on continued use frorn historical data, range of years considered, the area considered, extrapolations from usage in residential, comercial, and industrial sectors, etc." Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4). CLI 5, 9 NRC 609-6TO (1979).

Moreover, the Atomic Safety and Licensing Appeal Board has stated, "[g]iven the legal responsibility ir. posed upon a public utility to provide at all times adequate, reliable service - and the severe censequences which may attend upon I

a failure to discharge that resNnsibility - the rest that can be required is that the forecast be a reasonable one in the light of what is ascertainable at the time made." Kansas Gas & Electric Co., Kansas __ City Power & Licht Cc. (Wolf Creek Generating Station Unit No.1.) ALAB-46?, 7 NRC 320, 328 (1978) (citations omitted).

Consequently, applicants have never been required to demonstrate that need for the capacity of a plant and its proposed operational date coincide I

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Durit., the construction permit proceeding for the Calisway plants, the Nuclear Regulatory Comission in accordance with NEPA and the Comission's twn regulations implementing NEPA,10 CFR Part 51, made a good faith assessment of the need fer power from the Callaway Plants based on the infomation then available to it and authori:ed construction based on that assessment.

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The Public Service Com,ission her now subm!tted to the Comission a Preliminary Peak De.and Projection which reaches a different, i.e., a lowr demand forecast than that currently projected by Union Electric.

The PSC's As the Appeal Board has stated.

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"[i]f the electricity to be produced by a proposed project is genuinely needed...then the societal benefits achieved by having that electricity available are imeasurable. These benefits need not be discounted because some possibility exists that the need for power may develop nearer the end than the beginning of The adverse consequences to the public of insufficient the forecast spectrum.

generating capacity are serious ones, (discussed suora, p. 364, n.57), far more so than those flowing from having the plant on line a. year or even two before

  • Niacara Mohawk Power Corocration (Nine its cacacity is absolutely necessary.

Mile Point Nuclear Station, Unit 2), ALAB-264,1 NRC 347, 368-69 (1975).

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Union Electric Co. (Callaway Flant, Units 1 & 2), Partial Initial Decision, LBP-75-47, 2, NRC 319, 335-340 D975); Initial De:ision LBP-76-15, 3 KRC 445 (1976), affd, ALAB-347, 4 NRC 216 (1976); ALAB-426, 6 NRC 206 (1977).

      • / Sy letter dated February 17,1977, Union Electric Comoany informed the l

Comission that it was revising the scheduled operation date for Callaway, Unit 2 free April 1, 1983, to April 1, 1987, i

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. Report concluces, "While Unit 2 is planned for completion in 1987, the graph shows that it is not needed until after 1988.

If Unit 2 were finished as UE plans, there will be approximately 1,350 megawatts of excess capacity in 1987 above that which is projected by the staff [FSC Staff] mocel." The PSC asserts that in light of these recently discovered f acts "the 'iRC would be derelict in its statutory obligation if it did not suspend this construction while the fact.e upon which the agenc[y] granted...the...[ construction) permit four years ago are reessessed in light of this change." PSC petition at p.5.

As was noted in an earlier decision en a request for action under 10 CFR 2.206.7 the Appeal Board for the Commission has dealt with efforts to reopen the record cf proceedings in situations analogous to that presented by this 2.205 pe ti ti on. The Appeal Board noted in Duke Power Comoany (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619, 620-21 (1576):

"Af ter a decision has been rendered, a dissatisfied litigant who seeks to persuade us - or any tribunal for that matter -

to reopen a record and reconsider 'because some new circunstance has arisen, some new trend has been observed or scrne new fact discovered,' has a difficult burden to bear.

The reasons for this were cogently given by Mr. Justice Jackson more than 30 years ago in ICC v. Jersey City, 332 U.S. 503, 514 (1944):

One of the grounds of resistance to administrative process has been the claims of private litigants to be entitled to rehearings to bring the record up to date ano meanwhile to stall the enforcement of the administrative order.

Administrative consideration of evidence - particularly where the evidence is taken by an examiner, his report submitted to the parties, and a hearing held on their exceptions to it -

i always creates a gap between the time the reccrd is closed and the time administrative decision is promulgated.

This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and Y

eorcia Fewer Co._ (Alvin W. Yegtle Nuclear Plant, Units l',2), D0 '9 4, 9 U.:

G 5B2. 534-e5 0 979).*

. careful. If upon the coming down of the order; litigants might de.and rehearings as a utter of law because scme new circkmstance has arisen, some new trend has been observed, or some new fact dis-covered, there would be little hope that the teninistrative process could ever be consum.ated in an order that would not be subject to reopening.

There is, bewever, another factor to be considered in this case. The Com.ission has,in the past, placed heavy reliance en infomation developed by local regulatery bodies which are charged with the duty of insuring that utilities within their jurisdiction fulfill the legal obligation to meet customer demands.

Carolina Power & Licht Coreany (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), ALAS-490, 8 HRC 234, 241 (1978), aff'd, CLI-79-5, 9 NRC 607, 608 (1979),

The Missouri Public Service Comission has scheduled a hearing to begin in April 1980 on the. generation expansion progra:n of Union Electric Company. Thjsproceeding will consider the revised peak forecast for the_ utility and will.detemine whether or not to proceed to reconsider the e.atter of the certificate of public convenience i

and necessity for Callaway, Unit 2.

As described in the petition, the PSC retains jurisdiction over the construction of a generation facility by virtue of its statutory authority to grant a certificate of public convenience and necessity and its authority to set rates. Under this f

jurisdictional authority and based on the infomation to be developed in its up-coming hearings, the PSC could conceivably withdraw the certificate issued to j

Union Electric Co@any for Callaway Unit 2 upon a finding that Unit 2 is not needed f

to mintain the Company's electric plant for safe and adequate service at reasonable ra tes. The PSC's final determination on this matter is expected in the fall of 1980. See PSC petitten at pp. 2-3.

No constructior, is currently taking place on the Callaway Unit 2 facility.

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l Callacy is a two-unit facility in wtiich construction of Unit 1 is far advanced.

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The principal envirorcental impacts associated with construction of both untts i

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which were identified in the FES, i.e., site clearing and excavation, have already o::urred.

Furthemore, the pemittee has indicated by letter dated January 4,1980, I

i that, a; art from werk en certain facilities which are closely associated with Unit 1, no major construction of plant structures for the Callaway Unit 2 plant will be resu ed until sometime in early 1981. -

Thus, the remaining environmental impacts resulting solely from the construction of Unit 2, principally socioeconomic impacts of construction and these associated with the building of the Unit 2 cooling tower, will be celayed until sometime in 1951.

In light of the Co r.ission's practice of placing great' weight on the decision of local regulatory bodies in the area of need for pNer and the current hiatus in Unit 2 construction, I have detemined that no action need be taken on PSC's request for a hearing to consider the effect of changes in t"e peak load forecast for Uni:n Electric Company until after the c:cpletion of its hearings concerning l

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the utility. The PSC's decision is expected in the fall of 1980.

No construction cf Callaway Unit 2 is scheduled to begin until 1981.

Consequently, no prejudicial delay to either the petitioner or to the utility will result from deferring e de:ision on this petiticn pending the outcome of PSC's proceeding, nor will any j

premature environmental impacts fr:n construction take place.

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III Based on the foregoing discussion, I find that consioaration of FSC's petition for a shew cause order to suspend the construction pemit for Callaway

  • /

Letter fr:n John K. Bryan, Vice President, Union Electric C:r ;any to Harold R. Denton, dated January 4,1980. See Attactnent 1.

"/ Ceferral here of final actien pending comoletion of a state croceeding is 7,,.,.,

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A copy of this interim decision will be placed in the Comission's Public Document Roor at 1717 H Street, N.W., Wasningten. D. C. 20555, and the local public document roo*s for the Callaway Nuclear Plant Unit 2, located at Fulton City Library, 709 Market Street, Fulton, Missouri 65251 and Olin Library of Washington University, Skinker & Lindell Boulevard, St. Louis, Missouri 63130.

FOR THE NUCLEAR REGUL* TORY COMMISSION f*

Harold R. Denton, Director Office of Nuclear Reactor Regulation Dated at Bethesda, Maryland this day of March, 198D Attachnent:

1/4/80 Ltr to Denton fm Bryan / Union Elec. Co.

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Mr. Harold M.

Denton, Director Office of Nuclear Reacter Regulation U.

S. Nuclear Regulatcry Cc=ission Washington, D.

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20555 ULNRC-332

Dear Mr. Centon:

DOCKIT NO. STN 50-486 CALLAWAY PLANT, UNIT 2 R.ECUEST FOR ACTION UNDIR 10 CFR 2.206 By letter dated September 28, 1979, Messrs. Gerald Charnoff and Thc=as A.

Eaxter, Ccunsel for Union Electric Ccopany, submitted ec=ents on our behalf relative to the Misscuri Public Service Commission's request for institutien of proceedings to suspend the Constructien Pcrmit for Callaway Unit 2 as provided for in 10 CTR 2.206.

In addition to the infor=ation provided by Counsel in that letter, we are pleased to submit this report on the current status and projaction of construction ef forts on Callaway Unit 2.

At this time, no =ajor field construction a:tivity is in progress.

T_xcavation for Unit 2 was completed concurrent with work on Unit 1.

Limited portions of underground piping and electrical duct banks associated with Unit 2 continue to be installed, along with subfeundations of the emergency service water pu=p house and cooling tcwer.

This work has been undertaken because its c1cse proximity to Unit 1 structures renders it infeasible for construction to be deferred.

Apart fro = this work and based on cur current schedule for Unit 2, with commercial operation in April, 1987, we do not intend to co==ence major construction of plant structures until early 1961.

Very truly yours,

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John K.

3ryan DTS/sla ec:

See Page 2 gEc3 56-Je

Mr. Hartid R. Oenton, Director i

Janucry 4, 1980 Page Two

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Mr. Nicholas A. Petrick 1

-Executive Director i l SNUPPS h7bS dy Grove Road i

Gaithersburg, MD 20760

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Mr. Terry Rehma

] l A-95 Coordinator Office of Adninistration Division of State Planning & Analysis y

P. o. Ecx 809, State Capitol j

sefferson City, MO 65101 J

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Treva J. Hearne, Esq.

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Assistant Genera." Counsel Missouri Public Service Commission J

P. C. Box 360 Jef ferson City, Missouri 65101 1

Hencrable Paul H. Murphy Presiding Judge j

Callawr.y County Court Fulton, Missouri 65251 l

5 EIS Coordinator, Region VII r

U. S. Envircnmental Protection Agency

.i 1735 Baltimore Avenue Nansas City, Missou:L 64108 l

b Mr. Norton Savage l

Economic Regulatory Administration i

Power ~ Supply & Reliability Division l

C. S. Depart =ent of Energy (RG-752) 17 26 M S treet.

N.W., Room 850 Washington, D. C. 20036

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UN!CN E*,EC~RIC CC.v?Mi!* et ai.)

Occket No.

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F.a. old R. Denten, Directer Office of !!uclet.: Rese:cr Regulatien Willian L. Oircks, Director Office of Nuclear.'.aterial Safety and Safegua-ds Victor Stello, Di ector Office of Inspection and Inforcenent REQUEST N R INS;..g;1CN OF PROCIID NGS PURSOU!*

M 10 CTR $2.202 TO SUS?END CONSTRUC"!CN PER"IT AS PROVIDED 'CR IN 10 CN $2. 2:6 1.

Cenes new the ?ublic Service Cer_.ission of the State of

tisscu-1 by and through its attorney, and respectfully subnits

.'.is re:uest pursuant te 10 CTR $2.206 that the Nuclear ?egu-late:/ Cc

'ssion acting by and through its relevant officials including but not lir.ited to the Director of Nuclear Reactor j

Regulation,.the Director of !!uclear !'ateria'. Safety and Safe-gua-ds, and Director of Insuection and Inforcenent institute j

a proceeding to issue a show cause order pursuant to 10 CT*.

$2.202, to suspend Construction Permit C??R-1830 g anted to the pernittee Union Electric Centany on April 16, 177f, fer Callaway, Unit 2.

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All process, docu.ents, Octions, and cther papers car. te s e r*?ed :n the ?ublic Se: rice Oc::-issi:n by addressi..g s ar.e c :

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or Orsva J. F.ea.rr*, Assistan: General Cour.sel Public Ser-rice Cc=:.ission

?. O. Box 360 Jeffersen City, !!isscuri 65102.

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~he l'.issouri Public Service Cc=.issien, hereinafter refer: ed to as the PSO, is e: powered to regulate investor-cwned public utilities that se.ke custoners in the State cf.isscu-i.

See v

Sections 326.020, 386. 250, and 39 3.120, ?.S. c. Ic78.'

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Uni'en Electric Cc=pany, a.v.iss curi ccrpore. tion, hereinafter referred to as the Cc=cany, is an cperating utiliv engaged princi ally in the business of fur.ishing electric service thro uff. cut c ent ral and e t.s t e n !(is s curi, and thus, is s ub j e c t to the jurisdicticn.of the PSO.

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'"'he f ae:s that cens:itute the basis cf this reeues: tre s ufficie nt pund for the acticn prepcsed by this notien ar.d i

are as follows :

3efore the Cc: pany could begin construction of the Callaway a.

eleetric plant, it was required by ! assoc-1 law to..ake appli-l cation to the ?SO for a cartificate cf public ccnvenience and necessity.

See Section 3c3.*.?:.

Pu suant to this t::11-j 1

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excep as c he: tise it.dicated.

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a:icn, ex ensive hearings were conducted by the Cc= ission in 1974 which resulted in the granting of the certificate 1

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~he PSC retains jurisdiction over the construction of this b.

generation facility by virtue of its statutory authcrity to a.<

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a certificate o' putlic convenience ar.d necessity and l

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its authe-ity Oc set re.tes.

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en its own notion crdered an investigation a.nd,se: hearings in this v.a::er' which could result in the wichti awal of the i

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c. On August 13, 19~9, ce$tain facts :ane to the attentien i

cf the ?S" which may substantiall7 c.".ange the basis uren whien,

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a nien~e ar.d necessit7 for ConM:ruction Cf Un'*, 2.

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t acting sithin its j u-'.sdictional authority could withdraw the c e-.i'icat e upen a findir4 that " nit 2 is not needed Oc..ainttin i

the Ocn.:a.y 's electric pita: fer safe and adequate service i

1 rearc..atie rites.

See Secti:n 303 130.

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ar.1. by :he Cenpany's censistent e.ovnwa.M revisions of its own projected period cf fc ecasted peak since 1973 e.

On August 14, 1970, the PSC upon its own notien ordered e.n investigation of the Eeneration expansion pro 5 an cf the Ccmpany.

The hea.~ir4s in this catter were set as early as possible and are to begin April 7,1980, and cent'nue th ow;h

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April 18, 1980.

he PSC will render a deternination of whether to proceed"in the matter of certifi: ate of public con-or not venience and necessit7 ipanted to Callaway, Cni 2,afith

""he sta-deliberate speed in crder to enpedite this re.:ter.

tutes establishing the PSC require a full t.~.d open her. ring at which evidence is presented by all interested parties and have See Sections 3S6. h10 and 326.220.

ar. opportunity to be hea$d.

A full and ce=plete record cf all proceedini;s will be made and the decision of the 00

  • ssien will be nade uten the vnele meerd in accordar.ca <1th the rules of administrative See Secticns 386.410, precedurs cen'tained in the PSC statutes.

356.k20, 386.s60 and 366.870.

5.

"'he Nucisa.r Regulatory Cc...ission is statutoril.* ebligated

o :ensider the envir nnental effects of need f:r ecwer ur. der +

....m.

.s.

te er:visi:ns of the Mati:nal I..-d :nnent *. ?:li:"i Act, 4..

'~ '-

i

' ~. - :..

22 ;;0 i 221, e:. sec., e.d scre s:e:1fi:

1*.., :::. u*.e s

f the
~u:*. tar ?.esulaterr
=.issi:n.

t e e *.;

7"8

.f*., e:.

?tge - Of ~

h

t see..

Sis obligation is restated in the Construction Ferni: granted Callaway, Unit 2, No. CPPE-120 by the Nuclear a

Regulater) Cc:enistion, hereinaf ter refered to as N?.C, stating tha: the NRC had found the operation of the facility 20 be in accordance with 10 CFR Part 51.

7.

Peak denand has been gmwing at a reduced rate nationally i

since the Arab 011 Entarge of 1973 The PSC recogni:es this trend and weuld be derelict in its statutory duty to approve a generation e n ansion progran thr.: did not reanalyze the need for Callaway, tJni: 2, in 1:.;;h of these recently dis-ccsered facts g(*.ikewise, the NRC would be derelic in its i

statu cr7 obliga:icn if it did not susnend this construction whiis the facts upcn which the cgencies granted both the

ertifica e and pe nit four yer_rs ago a e reasses. sed in licht i

of :nis change.

i f.

Se ecnstruction of Callaway, Unit 2 is only 2.7', complete 2_.d the resources of the Con: par.7 are substantially censumed

1. :he.:resen censtructi n cf Callaway, Unit 1; theref re, ne ree.uested susnensten will no: ac': to the de:r".ent of
he :c :n.~j.

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