ML20058E194
| ML20058E194 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 07/26/1982 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20058E196 | List: |
| References | |
| NUDOCS 8207280091 | |
| Download: ML20058E194 (12) | |
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7/26/82 UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
COMMONWEALTH EDISON COMPANY Docket Nos. 50-454 50-455 (Byron Station, Units 1 and 2)
NRC STAFF RESPONSE TO ROCKFORD LEAGUE OF WOMEN V0TERS PETITION FOR WAIVER OF OR EXCEPTION TO 10 CFR SECTIONS 51.23(e) AND 51.53(c) 1.
INTRODUCTION AND BACKGROUND On July 6, 1982, the Rockford League of Women Voters filed a petition pursuantto10CFRSection2.75d/ for a waiver of, or exception to,10 CFR Sections 51.23(e) and 51.53(c) which prohibit adjudicatory consideration of need for power and alternative energy source issues in operating license proceedings. These issues form the subject of proposed League contentions denied by the Licensing Board in its Memorandum and Order
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Section 2.758 provides that a party can seek to demonstrate by means of a petition, and accompanying affidavit, that special circumstances exist with respect to the subject matter of a particular proceeding such that the application of an individual Commission rule or regulation would not serve the purposes for which it was adopted.
If the Board determines that the petitioner has made such a prima facie showing, it shall certify the matter directly to the Comission for decision.10 CFR % 2.758(d).
l DESIGNATED ORIGINAL 8207280091 820726 Certified By bd 1
0 PDR ADOCK 05000454 0
. of December 19, 19802f under then prevalent case law prior to the adoption of the current rules. The League apparently seeks to reintroduce these proposed contentions through the twin vehicles of its July 6 reponse to Applicant discovery / and this petition. Over a year and a half has elapsed since 3
the Licensing Board's ruling on contentions without a League motion for reconsideration or a motion to file late contentions. As the Staff noted in its July 20 response to the League's July 6 motion for a protective order regarding discovery and summary disposition in this proceeding, the current attempt to introduce need for power and alternative energy source issues is both procedurally and substantively unjustified under the tenns of the League's conditional readmission to the case by the Appeal Board in ALAB-678ortherequirementsgoverninglatefiledcontentions.1/ Thus, while the Staff has filed this response in opposition to the instant petition, it wishes to emphasize that, even if the petition had merit (which it does l
not) it cannot serve to revitalize issues rejected at a much earlier stage in the proceeding.
2/
LBP-80-30, 12 NRC 683, 691-92.
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This discovery response included the provision of information concerning the League's position on these prev'iously dismissed need for power contentions thus evincing an intention to include these issues as amng those the League would proose to litigate under the confines of the Appel Board's June 17, 1982 Decision (ALAB-678) regarding its readmission tr the case.
l 4]
See 10 CFR Section 2.714(a)(3).
l l
1
l
. The present petition alleges that substantial new studies and testimony show that there is no need for the power to be generated by Byron and that environmentally and economically superior alternatives exist. The petition is accompanied by a number of documents and testimony related to past and present state rate proceedings involving the Applicant and various documents unrelated to either the Applicant or the Byron project.E/ The League makes reference to isolated portions of this material to support certain general arugments while leaving it essentially to the reader to sift through this volumonous documentation to divine the intended substantiation for the petition.
This is unavailing and unsatisfactory to carry the League's burden to specifically identify the manner in which this infonnation supplies special circumstances unique to the Byron project such that the l
5/
These include the following: a 1980 independent load forecast (and 12 exhibits) prepared by the Governor's Office of Consumer Services for presentation in Illinois Comerce Comission (ICC) Docket 80-0706 (Attachment A); undated Testimony of Roy Czabar of the California Public Utility Comission regarding capital expansion programs for Philadelphia Electric Company (Attachment B); a November 1981 document by the Environmental Defense Fund, entitled
" Annual Alternative to Completing Nine Mile Point 2 Nuclear Station:
Economic and Technical Analysis" (Attachment C); Testimony of Irvin C. Bupp, Jr., filed June 23, 1982, in ICC Docket 82-0026 regarding Applicant's rate increase request (Attachment E to separate petition for waiver of financial qualifications rule); Testimony of Charles Komanoff, filed June 23, 1982, in ICC No. 82-0026 (Attachment H to financial qualifications petition); and Testimony of Dale Bridenbaugh, filed June 23, 1982, in ICC No. 82-0026 (Attachment J to financial qualifications petition).
O challenged rule would not serve its intended purpose.N In large measure this information predates promulgation of the subjec rulesU and is not dissimilar to the type of information considered by the Commission in promulgating those rulesN, is unspecific or unrelated to Byrod or otherwise lacks sufficient probative value. The impact of this information is addressed in the accompanying affidavit of Darrel A. Nash. For these reasons, as more fully discussed below and in the Nash Affidavit, the Staff opposes the present petition.
II. AGRUMENT_
Basis for Maiver of 10 CFR E 2.758 Prohibition on Challenges to A.
Regulations in Adjudicatory Proceedings Commission regulations are not subject to attack in individual licensing proceedings except as prescribed in the relevant provisions of 10 CFR $ 2.758. Under this regulation, a party may submit a petition for waiver of, or exception to, a particular Comission rule or regulation on the ground that special circumstances exist with respect to the subject matter of a proceeding such that application of the rule would not serve the purposes for which it was adopted. 10 CFR 6 2.758(c).
The petition must be accompanied by an affidavit that identifies the specific aspect of the subject matter of the proceeding as to which the purpose of the rule would not be served and sets forth with particularity the special circumstances alleged to justify the requested waiver or 6/ 10 CFR Section 2.758(c) 7/ 47 Fed. Reg.12940 (March 26,1982).
8/ Id. at 12941; Nash Affidavit at 7.
9/ See, e.g., Attachments B, C; Nash Affidavit at 5-7.
. exception.El Id. Upon prima facie showing of special circumstances, a licensing board must certify the petition to the Commission for detennination.
10 CFR S 2.758(d).El B.
Waiver of the New Rules on Considering Need for Power and Alternative Energy Sources in Byron ' Operating License Proceeding Succinctly stated in the statement of consideration, the purpose for the new rules barring operating license litigation of need for power and alternative energy source issues is "to avoid unnecessary consideration of issues that are not likely to tilt the cost-benefit balance."El The Commission explained that the uniform past experience had shown that considerations of need for power and alternative energy sources did not tilt the cost-benefit balance at the operating license stage.El Notwithstanding this experience, the Commission indicated that waiver of the rule under 10 CFR 5 2.758 may be warranted under circumstances where it "could be shown that nuclear plant operation would entail unexpected and 10/ See e.g. MetropoH tan Edison Co. (Three Mile Island Nuclear Station.
Unit 1), LBP-80-1,11 NRC 37, 38 (1980); Detroit Edison Co. (Enrico Fermi Atomic Ponr Plant, Unit 2), LBP-78-37, 8 NRC 575, 584-85 (1978); Duke Po.ar Co (Catawba Nuclear Station, Units 1 and 2),
H / In the present instance, the petition is accompanied by a brief affidavit of counsel for the League stating that the statements contained in the documentary exhibits attached thereto are true and correct to the best of his knowledge. This is not a suitable means of authentication for evidentiary purposes. The affidavit also fails to particularize the special circumstances alleged to justify waiver of the rules as required although such circumstances are fairly described in the petition itself and in the opinions of the Staff this factor alone should not render the petition deficient.
H / 47 Fed. Reg. 12940.
13/ Id. at 12941.
, significant adverse effects of that an environmentally and economically superioralternativeexisted."b As demonstrated below, the League has not shown that such special circumstances exist in this proceeding nor can the record justify such a conclusion.
The League argues that because of the unavoidable environmental risk associated with nuclear power, because the plant is not needed, and because it would impose an unecessary burden on rate payers, non-l operation of Byron is both environmentally and economically superior to i
licensing Byron. Petition at 5-6.
In support of this proposition, the f
t League
- claims that the need for power from Byron has declined since the construction permit stage to an estimated 2% demand growth in the April 1982 NRC Final Environmental Statement (FES) and to 0.5% demand growth in anotherindependentloadforecast(AttachmentA). Petition at 4, 8.
The League cites the FES for the notion that the only use for the Byron plant is to maintain reserve capacity during two projected peak periods in 1985 and 1990. Petition at 4.
The League further contends that the Applicant has historically underestimated operational costs for its electric utilities.
I_d.
The League contends that, as decreased demand for power becomes j
l clearer, alternative sources become more relevant and should be accorded l
more weight in the cost-benefit analysis.
I_d. Alternatives advocated as i
environmentally and economically superior on the basis of the cited i
attachments include, in addition to non-operation, " inter alia, 14/
Id. See discussion infra at 10-11.
. conservation and cogeneration". Petitionat6.El Therefore, on the basis of its analysis, the Leagues posits that the avowed purpose of 10 CFR Sections 51.23(e) and 51.55(c), namely "to avoid unnecessary consideration of issues that are not likely to tilt the cost-benefit balance", would not be served by applying the regulations in the case at bar. Petition at 6.
The Staff disagrees. Arguments raised by the League in the petition serve to justify, rather than not, the application of the rule barring relitigation of need for power and alternative energy source issues at the operating license stage of the process.El The new rule was promulagated in March 1982. E It provides that need for power and alternative energy source issues will not be considered in nuclear power plant operating license proceedings. The purpose assigned for the rule is quoted above. The Comission explained that historical experience had shown that at the operating license stage a plant is i
-15/ Examination of the references cited in support of this proposition l
fails to identify alternatives other than the two singled out with the possible exception of hydroelectric power which the League disclaims any reliance upon. See Petiton at 6.
This material does not address the separate,but equally important, matter of feasibility or availability of the cogeneration option in the necessary timeframe. See Nash Affidavit at 6.
-16/ In fact, in promulgating the subject rules, the Comission has considered arguments similar to those raised by the League and has discounted the effect of such arguments on the outcome of past operating license proceedings. See discussion infra at 8-10; Nash Affidavit.
l 17/ 47 Fed. Reg. 12940 (March 26, 1982).
I
, needed either to meet increased energy needs or to replace older, less economical units and that "no viable alternatives to the completed nuclear plant are likely to exist which would tip the NEPA cost-tenefit balance againstissuanceoftheoperatinglicense".El The Comission continued that this conclusion is unlikely to change even if a marginally enviromentally superior alternative to operation of the nuclear plant is identified because of the " economic advantage which operation of a nuclear facility has over available fossil generating plants".M/ As relevant to the League's position that alternatives such as conservation and cogeneration are economically superior to Byron operation, the Comission expressly rejected an argument to the same effect advanced in certain critical articles endorsed by several comentors on the then proposed need for power rule.20/ The Comission cited contradictory government studies, which it deemed more reliable, which showed that nuclear plants are less costly to operate than fossil plants and that, if conservation lowers demand 21 utilities take the most expensive operating facilities off-line first
/
The petition does not address or dispute this point.
The Comission similarly rejected arguments analogous to those advanced by the League to the effect that changed conditions between the construction pennit and operating license stages, such as " increased l
HI M-1_9/
M-These articles are described as stating that conservation plus other g/
energy forms result in lower cost than operation of a nuclear plant.
47 Fed. Reg. at 12941.
t 21/
M-
. costs, lower demand, new information, new technologies" warrant reconsideration of need for power and alternative energy source issues at the operating license stage.E The Comission acknowledged that certain factors may change between the construction permit and operating license stages but discounted the likelihood that these changes would tip the cost-benefit balance against issuance of an operating license.E The Commission cited experience showing that completed nuclear plants are used to their maximum availability and tha't it has never been found in an NRC operating license proceeding that a viable environmentally superior alternative to nuclear operation exists, a situation the Comission expected to prevail for the " foreseeable future". E The present petition does not provide a basis to refute this point.
Despite the foregoing analysis, the Comission noted that special circumstances could be present under 10 CFR $ 2.758 to warrant consideration of need for power and alternative energy source issues if, for example, it "could be shown that nuclear plant operation would entail unexpected and significant adverse effects or that an environmentally and economically superior alternative existed".2_1/ The League does not allege that the former situation is present in this case nor does it supply significant new evidence beyond that already available to the Comission when the subject rule was promulgated in March 1982 that the latter situation l
obtains. Moreover, the overall evaluation in the FES (which contains a 22/ Id. at 12942.
23/ Id.
24/ Id.
25/ Id. at 12941.
. limited voluntary discussion on need for power) belies such a position.El In all apparent respects, this is a " typical" operating license proceeding from the standpoint of those factors which provided the stated rationale for the Commission's adoption of the disputed rule.
In relevant part, the FES concluded that the direct benefits of Byron operation include approximately 12 billion kWh of annual base load electrical energy production, a saving of over 200 million dollars in production costs per year, and improved system reliability and diversity.E/ The Staff noted that, while there had been a marked reduction in the growth of peak demand in the Applicant's system since the construction permit stage, this was representative of a national trend.5/ It further found that alternative energy sources considered and foreciosed at the construction permit stage were not presently feasible energy production alternatives and that the attendant environmental and economiccostsofsuchalternativeswouldbeprohibitive.E/ The Staff reasoned that the only rational alternative was to deny operation which it regarded as economically unacceptable, particularly given the large construction costs already incurred which must be recovered whether the plant operates or not.E/ The Staff, finally, concluded that the
-26/ See, e.g., FES, Sections 2.1 to 2.6 (need for power), 3 a ternatives), 5.9 (radiological impacts of operation), 6.4.3 economic costs), 6.4.5 (environmental costs), and 6.4.6 conclusion).
22/ S_ee FES, Sections 2, 6.4.2.
28/ See FES, Section 2.1.
29/ See FES, Sections 3.2, 9.3.
30/ Id.
w environmental impacts of Byron operation were not significant and that the overall benefits of plant operation outweighed the costs attributable thereto.E The rule eliminating need for power.and alternative energy source issues from operating license proceedings was promulgated in recognition of the traditional insignificance these issues have played with respect to the outcome of past operating license decisions.
It is inconceivable that the Comission would authorize waiver of the rule in this instance given the largely generic nature of the documentary sources cited in the present petition regarding the environmental and economic costs of proferred alternatives.
The demonstrable benefits to be derived from Byron operation on economic grounds, both in terms of sunk construction costs, future savings in electrical costs, and system reliability considerations, have been favorably analyzed by the Staff. The often irrelevant material i
relied upon by the League in its petition does not provide a prima facie showing that any factors other than those already accounted for by the Commission in promulgating the new rules warrant its waiver in this particular proceeding. The League has not met its burden, under 10 CFR Section 2.758, to demonstrate that special circumstances applicable solely to Byron exist such that application of the new need for power and alternative energy source rules would not serve the intended purpose of eliminating unnecessary litigation of issues that have typically failed to weigh decisively against the issuance of an operating license.
H / FES, Section 6.4.6.
)
at
. 3 III. CONC!.USION qi 4
Based on the foregoing',tt'e Staff opposes the League's petition foe t
waiverof,orexceptionto,10CFRSections51.23(e)and51.53(c)inthis proceeding.
/
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Respectfully! submitted, f, hY i
Steven C. Goldberg,/
Counsel for NRC Staff Dated at Bethesda, Maryland 3
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this 26th day of July,1982 3
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