ML20056B535
| ML20056B535 | |
| Person / Time | |
|---|---|
| Issue date: | 07/17/1990 |
| From: | Taylor J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| FRN-53FR32913, RULE-PRM-50-52 NUDOCS 9008310085 | |
| Download: ML20056B535 (10) | |
Text
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[DocketNo.PRM-50-52]-
Marvin Lewis; Denial of Petition for Rulemaking AGENCY:
Nuclear Regulatory Commission.
ACTION: Denial of petition for rulemaking.
SUMMARY
- The Nuclear Regulatory Comission (NRC) is denying a petition for rulemaking (PRM-50-52) from Mr. Marvin I. Lewis. The petition requests that the Comission amend its regulations in 10 CFR Parts 2 and 50 t reinstate i
financial qualifications as a consideration in the operating license hearings for electric utilities. The petition is being denied because it raises no
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issues that were not previously considered in the rulemaking process that resulted in the Comission's adoption on September 12,1984-(49FR35747)of a final rule entitled ' Elimination of Review of Financial Qualifications of Electric Utilities in Operating License Review and Hearings for Nuclear Power Plants," and because no new circumstances have arisen to warrant a change in the current regulation.
ADDRESSES: Copies of correspondence and documents listed below are available i
for public inspection at the Commission's Public Document Room at 2120 L Street,N.W.(LowerLevel), Washington,D.C.
'FOR FURTHER INFORMATION CONTACT: Darrel A. Nash, Office of Nuclear Reactor Regulation, U. S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301)492-1256.
9008310085 900717 I
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The Petition By letter dated June 6, 1988, Mr. Marvin I. Lewis o' Philadelphia, Pennsylva-nia, filed with the NRC a petition for rulemaking.
The petitioner requested that the NRC rescind the rule that has eliminated financial qualifications from consideration at the operating license stage for electric utilities.
Basis for Request i
Grounds for the Petition i
Mr. Lewis states that long-standing operating problems at Limerick I and II and at the Peach Bottom plants have placed a financial burden on the Philadelphia Electric Co (PECo).
Mr. Lewis asserts that PEco has admitted being under fi-nancial pressure and that the cost of Limerick I and II has left PEco billions l
of dollars in debt.
Mr. Lewis also asserts that despite the shaky financial condition of the parent utility, Long Island Lighting Company (LILCO), Shoreham was granted a license to operate.
He claims that LILCO had admitted that it lacked sufficient monies to pay for decommissioning of the nuclear power plant, y
and he is concerned that the flnancial problems facing PECo will lead to a situation at Limerick II similar to the Shoreham situation (i.e., the shutdown of a nuclear power-plant after it reached criticality and its components had become contaminated with radioactivity).
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i General Solution to the Problem The petitioner generally requests that the NRC reinstate financial qualifica-tion reviews of electric utilities as a part of the operating license review and hearings for nuclear power plants.
In addition, the petitioner specifical-ly requests that the NRC suspend the licensing proceedings for Limerick II until the parent utility, PECo, can demonstrate to the satisfaction of the NRC that it is financially qualified to proceed safely with Limerick II and its other nuclear operations.
Summary of Petition Mr. Lewis believes that Limerick II will be issued a license to operate at full power, and then because of PEco's financial problems and the excess generating capacity in the service area resulting from the plant's operation, PECo will decide to decommission Limerick II.
The petitioner asserts that such action by PEco will expose him and other members of the public to radiation without any corresponding benefit.
Mr. Lewis states that even if the plant stays open, the shipment of radioactive waste will expose him to radiation without any corresponding benefit, and he claims this is a violation of the Atomic Energy Act.
Mr.' Lewis cites the Atomic Energy Act as the basis for his assertion that the Federal Government is required by law to " protect the-health and safety of the public" and that the Nuclear Regulatory Commission has been charged with p
enforcing this mandate.
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. Petitioner's Proposal The petitioner requests that the NRC amend its regulations in 10 CFR Parts 2 and 50 to reinstate financial qualifications as a consideration in the operating license hearings for electric utilities.
To achieve this goal, the NRC would have to revoke the provisions of the final rule entitled " Elimination of Review of Financial Qualifications of Electric Utilities in Operating License Review and Hearings for Nuclear Power Plants," adopted on September 12, 1984 (49 FR 35747) and also revoke the provisions of the final rule entitled " Elimination of Review of Financial Qualifications of Electric Utilities in Licensing Hearings for Nucler.r Power Plants," adopted March 31, 1982 (47 FR 13750).
Part 2 would be amended by revising S 2.104(c)(4) and paragraph VIII.(b)(4) of Appendix A to reinstate the language of those provisions that existed before issuance of the final rule published March 31, 1982 (47 FR 13750).
Part 50 would be amended by revising SS 50.33(f), 50.40(b), and 50.57(a)(4) to reinstate the language of those provisions that existed before issuance of the final rule published March 31, 1982 (47 FR 13750).
Finally, the definition of " electric utility" in SS 2.4 and 50.2 would be revoked because it would be unnecessary.
Publi:: Comments on the Petition A notice of filing of petition for rulemaking was published in the Federal Register on August 29, 1988 (53 FR 32913).
Interested persons were invited to submit written comments or suggestions concerning the petition by October 28, 1988. The NRC received 21 comments (one was double counted) in response to the notice:
4 from citizens organizations (one of which was sent by the l
i 5-I petitioner); and 17 from industry, industry representative organizations, and industrial associations (two comments were received from one organization).
All of_the citizens organizations supported the petition, and all of the industry respondents opposed the petition.
The main reasons given for supporting the petition were 1.
A utility under financial duress might take short cuts in operation and procedures which could result in accidental releases of radiation.
2.
The NRC would be under pressure to allow many questionable safety practices under fear that the utility would crash without these questionable approvals.
3.
Unplanned expenses associated with the outages at the Peach Bottom units have greatly weakened PECo's financial stability.
4.
PECo's long history of incompetence and irresponsibility should have been a factor considered by the NRC in licensing Limerick I and II.
5.
In adoptinD the financial qualification regulations, the NRC found that State regulatory commissions would always guarantee utilities an adequate rate of return.
That this finding is not correct has been demonstrated in the past by some of these commissions which have d sied rate increases requested by nuclear utilities..
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The main reasons given,for opposing the petition were 1.
In. adopting the present rule, the NRC found that the regulated nature of its licensees, electric utilities, assured adequate funding for safe power reactor operation through State and Federal ratemaking processes.
The NRC failed to find, at least for regulated electric utility owners of power reactors, any proven link between its financial qualification review of such licensees and safety.
2.
The petition does not demonstrate any rational relationship between the facts asserted (an increase in radiation exposure) and a need to amend the financial qualification rule to require a review at the operating license stage.
l 3.
The petitioner had the opportunity to comment and did comment on the L
proposed rule.- The petition appears to be an attempt to reopen L
consideration of a final rule of the Commission, and this rule has already L
been the subject of extensive rulemaking proceedings and judicial review.
The petition in reality is an attempt to reopen an individual licensing L
proceeding.
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- 4. -
The petition seeks to reopen a previously resolved matter.
In general, the courts have held that, absent a showing that new circumstances have
- arisen to warrant a change, a regulation validly promulgated by an admin-istrative agency is entitled to finality.
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.. i 5.
There has been no significant change in the ratemaking process or in fundamental economic regulation principles that would warrant the NRC's reconsideration of its 1984 decision.
6.
The petitioner appears to be challenging the finding made in adopting the rule, that is, that utility rate regulatory commissions would, without exception, allow prudently incurred costs of safely operating and decommissioning nuclear power plants.
The D.C. Circuit Court of Appeals found no fault with the Commission's findings on this issue.
The petition does not offer any reasons or supporting facts to show-that these conclusions are now erroneous.
7.
The NRC has the authority under Section 182a of the Atomic Energy Act and under 10 CFR 50.54(f) to obtain any financial information necessary to determine whether a power reactor licensee's financial situation might affect the the licensee's ability to continue to operate safely.
8.
Most of the rulemaking petition is devoted to the problems of PEco and the licensing of Limerick I and II.
The licensing of Limerick I and II is not a generic industry problem.
If there are problems at Limerick, there are other, more appropriate means of seeking Commission action.
9.
The problems of PEco alleged by the petitioner (such as an inadequate cooling water supply, an excess of generating capacity in the service area, and transfer of qualified operating personnel from one pla'nt to another) i do not justify a generic change in the financial qualification rule.
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10.
Experience has shown that electric utilities have taken appropriate steps to assure the availability of adequate financial resources, even during periods of financial stress, by providing for delay of non-nuclear expenses and by securing additional financing.
11.
The financial qualification rule is an inappropriate standard by which to judge the adequacy of a utility's decommissioning fund.
The requirements regarding the adequacy of a utility's decommissioning fund for reactors are contained in other NRC regulations.
12.
In adopting the present financial qualification rule, 10 CFR 50.33(f),
the Commission expressed its intent to use its inspection / investigation resources to assure that licensees experiencing f'.nancial difficulties l-continue to comply with regulatory requirements necessary for the safe operation of their nuclear power plants.
13.
The NRC's fully implemented and often extensive onsite licensee inspection program and its Systematic Assessment of Licensee Performance process provides direct information regarding the achievement of safe levels of operation at each facility, obviating any need for indirect methods of measurement such as the financial situation of licensees.
14.
Reintroducing the case-by-case review of the financial qualifications of licensees would interfere with the NRC's move toward standardization.
- . Reasons for Denial l
The current financial qualification regulation in 10 CFR 50.33(f) resulted.
from an extensive rulemaking process that included detailed studies by the staff and the-National Association of Regulatory Utility Commissioners (NARUC).
It was twice noticed as a proposed rule for comment in the Federal Register (August 18, 1981 (46 FR 41786) and April 2, 1984 (49 FR 13044)) and each time extensive comments were received.
These comments were evaluated, and the final. rules were modified accordingly.
All of the concerns relating to financial qualifications expressed in the petition were considered in these earlier proceedings.
The final rule was also reviewed by the U.S. Court of Appeals for the D.C. Circuit.1 Situations such as those alleged to exist at PECo and LILC0 were considered in the rulemaking and court review processes.
The portion of the preamble to the present rule entitled " Background" (49 FR 35747; September 12,1984) provides the basis for the promulgation of the existing regulation.
The NRC's findings as set forth in the preamble to the 1984 final rule were adjudged to adequately justify and support that rule.2 No changes in rate regulatory law have taken place since then, nor is the NRC 1
New England Coalition on Nuclear Pollution v. NRC, 727 F.2d 1127 (D.C. Cir.1984); Coalition for the Environment, St. Louis Region v. NRC, 795 F.2d 168 (D.C. Cir. 1%6).
2 Coalition for the Environment, St. Louis Region v. NRC, 795 F.2d 168,176 (D.C. Cir. 1986).
c
! i aware of any change in the practices or commitments of rate regulatory i
comi ssions.
The petitioner does not identify 'any changed circumstances; he only states, "We are presently faced with the very problems which I stated or naf f.;d in my 5-28-84 coments on the rule." This argument is clearly an attack against the basis of the rule'and does not arise from new or changed circumstances.
The petition alleges financial and other problems of two individual licensees, l
Philadelphia Electric Company and Long Island Lighting and Power Company.
Rulemaking is an inappropriate process for dealing with these problems of-individual licensees.
Because the petition presents no information not previously considered and because there are no new circumstances, the NRC has denied.this petition.-
Dated.at Rockville, Maryland, this
/7 day of d
, 1990 For the Nuclear Regulatory Coseission.
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. Taylor
-r xe ive Director for Operations
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