ML20058J522
| ML20058J522 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 08/05/1982 |
| From: | Margulies M Atomic Safety and Licensing Board Panel |
| To: | LEAGUE OF WOMEN VOTERS OF ROCKFORD, IL |
| References | |
| ISSUANCES-OL, NUDOCS 8208110068 | |
| Download: ML20058J522 (12) | |
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h0CNiTED USNRC UNITED STATES OF AMERICA NUG. EAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Judges:
h,[j(( ECfgAy~y.
Morton B. Margulies, Chairman
- i g g,;
Dr. Richard F. Cole
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Dr. Dixon Callihan SERVED AUG 91982' i'
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Docket Nos. STN 50-454 OL In the Matter of STN 50-455 OL COMMONWEALTH EDIS0N COMPANY
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(Byron Station, Units 1 and 2)
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August 5, 1982
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MEMORANDUM AND ORDER On July 6,1982, the Rockford League of Women Voters (League) filed a petition pursuant to 10 CFR 2.758 for a waiver of, or
.t exception to 10 CFR 51.23(e) and 51.53(c) which regulations, effective April 26, 1982, prohibit the admission of contentions concerning th need for power or alternative energy sources for the proposed plant in operating license hearings.
Responses were filed by applicant and NRC staff on July 22, 1982 and July 26, 1982, respectively, opposing the petition.-1/
Prior to the time of 1_/ On August 2,1982, a :mtion concernina the same subject matter was received from intervenor DAARE/ SAFE, after a decision had already been reached on the subject motion. Rather than delaying the disposition of the subject motion, to await responses to the DAARE/ SAFE motion, they will be disposed of separately. A DAARE/ SAFE reply to responses of applicant and NRC staff to League's petitions for waiver, is an unauthorized pleading that will not be considered, K ok$$4 g
promulgating tiie subject regulationis, intervenor proferred conten-tions on the need for power, which weere denied ur. der the existing law by the Licensing Board in LBP 80-30, 12 NRC 683, 691 (1980). No further action was taken by the League in regard to that decision.
The Commission in promulgating the final regulations, 47 Fed.
Reg. 12940 (March 26, 1982) succinctly set forth its reasons for the change.
It stated:
[t]he purposa of these amendments is to avoid unnecessary consicleration of isssues that are not likely to tilt the cost-benefit balance by effectively eliminating need for power and alternative energy source issues frorr consideration at the operating license stage.
Ir, accordance with the Commission's NEPA responsibilities, the need for power and alterna-tive energy sources are resolved in the construction permit proceeding. The C'ommission stated its tentative conclusion that while there is no diminution of the importance of these issues at the construction permit stage, the situation is such that at the time of the operating license proceeding the plant would be needed to either meet increased energy needs or replace older less economical generating capacity cnd that no viable alternatives to the completed nuclear plant are likely to exist which could tip the NEPA cost-benefit balance l
against issuance of the operating license.
Past experience has shown this to be the case.
In addition, this conclusion is unlikely to change even if an alternative is shown to be marginally environmentally superior in comparison to operation of a nuclear facility because of the economic advantage which operation of nuclear power plants has over' available fossil generating plants c An exception to the rule would be made if, in a particular case, special circum-stances are shown in accordance with 10 CFR 2.758 of the Comission's regulations.
The Comission reached its conclusion in part on the basis of findings that nuclear plants are lower in cost to cgerate than
- fossil plants and if conservation lowers demand, then utility companies take the most expensive operating plants off-line first, as a result a completed nuclear plant is used as a substitute for the less economical generating capacity.
The special circumstances it was willing to accept as creating an exception to the regulations is a showing made in accordance with 10 CFR 2.758 "that nuclear plant operations would entail unexpected and significant adverse environmental impacts or that an environmentally and economically superior alternative existed."
Section 2.758, of Title 10, Code of Federal Regulations provides that the sole ground for petition for waiver or exception
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shall be that special circumstances with respect to the subject '
matter of the particular proceeding are such that application of the rule or regulation would not serve the purpose for which it was adopted.
It further requires that the petition shall be accompanied by an affidavit that identifies the specific-aspect _of the subject matter of the proceeding as to which application of the rule or regulation would not serve the purposes for which it was adopted and shall set forth with particularity the special -
circumstances alleged to justify the waiver or exception requested.
If on the basis of the filing, the presiding officer determines the pdhitioning party has not made a prima facie showing that the specific Comission rule or regulation would not serve the purpose for which it was adopted and that its application should be
waived or an exception granted, the presiding officer may not con-sider the matter further. Alternatively, if the presiding officer determines that such a prima facie showing has been made, the presiding officer shall, before ruling thereon, certify to the Commission fcr determination the issue of whether the waiver be granted or the exception made.
Petitioner asserts that substantial new studies and testimony by nationally recognized experts have become publically available which show there is no need for the power to be generated by the proposed plant and there exist environmentally and economically superior alternatives to Byron.
The League states that applicant's demand projections for powerareinflatedanditscostsareunderstatedmakingtheplagt unneeded.
Upon the premise that there is no need for the power, it bases the conclusion that non-operation of the plant would be environmentally superior.
Intervenor also claims it to be
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economically superior because large nuclear facilities impose enormous economic burden on ratepayers. The League contends that conservation and cogeneration are also superior alternatives.
It further asserts that the regulations.for whicfr a waiver is sought is predicated on the assumption that alternative energy sources would. be more expensive and environmentally inferior, a situation which does not exist at Byron. The League believes it unwarranted to assume that the NEPA cost-benefit balance performed at the construction stage can still be viewed as accurate in light of the decline in the demand for power, making non-operation an even more realistic alternative.
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i Applicant opposes the petition, on the merits, on the grounds the League has not made out a prima facie showing of special circumstances in accordance with 10 CFR 2.758.
It asserts that the League merely repeats the arguments considered by the Commission in the ruiemaking proceeding and the evidence cited by the interveror is inconsequential if not irrelevant.
It pcints out that the Commission in the rulemaking conservatively assumed "the plant is not needed to satisfy increased energy needs but rather is justified, at all, as a substitute for other generating capacity" 46 Fed. Reg. 39441 ( August 3,1981) and that the League's argument based on decreased demand does not support a claim of special circumstances.
It relies on the League's own evidence that the
'l Byron plant should produce relatively cheap electricity during the 1990's and the first decades of the 21st century, given in the testimony of Ir/ n C. Bupps, Exhibit E to Financial Qaulifications i
Petition at 8.
As to the League's asserted claim that the Commission l
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incorrectly assumed that alternative energy sources would be more expensive and environmentally inferior, applicant states the League fails to identify any relevant evidence to support the contention.
i Intervenor relies on 2 documents relating to facilities owned by i
other utilities located in different geographic regions and on l
"further expert testimony relating specifically to C. E. and the i
Byron facility expected to be available shortly."
l Applicant claims the League's assertion that non-operation of the Byron facility is an environmentally superior alternative is refuted by the exhibits on which it relies.
It cites Dr. Bupp's testimony that the operation of Byron will result in decreasing the amount of coal produced electricity.
(Testimony of Irvin C. Bupp, Exhibit E to Financial Qualifications Petition at 9-12). Applicant takes the position that the environmental consequences of operating a coal generating plant are greater than for a nuclear plant, citing Byron FES-CP 9.1.2.2.
As a consequence the non-operation of Byron is an environmentally inferior alternative.
Finally it sets forth that in both the proposed and final rules, the Comission expressly considered the possibility that i'
certain factors could change between the construction permit proceeding and the operating license proceeding. 47 Fed. Reg.
i 12,942 (1992), 46 Fed. Re;. 39,441. (1981). The Commission rejected the notion that changes from the construction permit stage to the operating license stage, without more, constitute special circumstnces sufficient to justify waiving the requirements of the regu;ations.
NRC staff is also of the position that the arguments raised by the League in the petition serve to justify, rather than not, the l
application of the rule barring litigation of need for power and l
alternative energy source issues at the operating license stage.
l It contends the League petition did not address or dispute the Commission points relied upon in formulating the regulations that nuclear plants are less costly to operate than fossil plants and that if conservation lowers demand utilities take the most expensive operating facilities off-line first.
Staff too cites that the Commission 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.
It asserts the petition does not provide a casis to refute the Commission's wints that in its expeM ence completed nuclear plants are used to their maximtsn availability that it has never been found in an NRC operating license proceeding that a viable environmentally superior alternative to nuclear operations exists, a situation the Commission expected to prevail for the.
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foreseeable future.
Staff contends the League presented no significant evidence beyond that available to the Connission when the subject regulations were promulgated.
It notes that in addition to the League citing the FES for the proposition that the only use for the Byron plant is to maintain reserve capacity during two projected periods in 1985 and 1990, direct benefits that would result would be approximately 12 billion kWh of annual base load electrical energy production, a savings of over 200 million dollars in production costs per year with improved system reliability and diversity. The staff reasoned the only rational alternative to the-plant was to deny operation which it regarded as economically unacceptable, given to large construction costs already incurred
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which must be recovered whether the plant operates or not.
NRC staff concluded that the material " 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."
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Based on the record made on the League's motion for waiver of 10 CFR 51.23(e) and 51.53(c), the Licensing Board finds the above statement of staff that petitiuner has not satisfied its burden to prevail in the subject matter to be correct. The special circumstances the League chose to establish for lifting the prohibition in the regulations barring contentions in operating license proceedings on the need for power and alternative energy snurces was that an environmentally and economically superior alternative exists to the Byron facility.
It failed to make a prima facie showing that this is the case.
ihe League's position is incorrectly premised on equating reduced electrical demand with a lack of need for the facility.
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. 6 The Consnission in promulgating the regulations found an important j
need for nuclear plants to replace less economical generating capacity in the form of fossil fuel plants.
This also occurred in periods of reduced demand when utilities take the most expensive operating plants off-line first. Staff's conclusion that Byron Station will result in significant savings in system production costs is consistent with the Commission's findings that nuclear plants are lower in cost to operate than fossil plants.
Although for a different period, the League's own witness confirmed the cheapness of the electricity the subject plants will produce. Addi-tional benefits the plants will provide are furnishing a needed reserve capacity and making for a diverse mix of generating i
resources.
Certainly non-operation of the facility is not an environmentally and economically superior alternative.
Non-operation will keep existing fossil fuel plants in operation which are a type the Comission has found not to be as environmentally sound and ecunomical to operate as nuclear. The greater efficiency that the Byron plants will provide has been confirmed by staff and in part by petitioner's witness.
l Non. operation will not provide the reserve capacity that is needed nor will it offer a mix of generating resources a benefit to be obtained from operation of Byron. Non-operation does not match the nuclear plants in these areas, let alone being superior.
Another reason why non-operation is not an economically superior alternative is that it does not provide a means to recover the m
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large construction costs incurred whereas its operation does.
Non-operation does not release the utility from paying these costs.
The League submitted no convincing evidence for making a prima f acie case that conservation and cogeneration are superior to operation of the Byron facility. The underlying material furnished did not relate to applicant and the Byron facility. There is no evidence conservation and cogeneration are potentially available alternatives in the Byron area, aside from the question of being superior. Assuming they are initially available as alternatives what is to assure their continued functioning. Absent independent means to require continuing availability makes-them of questionable reli ability. This greatly lessens their value and has the opposite effect on considering them a superior methodology to operating he plant.
Conservation and cogeneration may be concepts worth pursuing at the construction permit stage of the proceeding but not at the time the nuclear facilities are close to completion.
If conservation and cogeneration are effective they will reduce demand f
on the utility for electricity and create the condition for employing _the nuclear plants with their recognized superiority over l
fossil plants, as was previously discussed.
The decline in the demand for power evidenced since making the NEPA cost-benefit balance evaluation at the construction stage does not lessen intervenor's burden of making a prima facie showing of special circumstances consisting either of unexpected and
. significant adverse environmental impacts that will result from the nuclear plant operations or that an environmentally and '
economically superior alternative exists in order to obtain the exemption or waiver. The Commission in promulgating the regulations recognized that changes would occur between the construction permit and operating licensing stages but determined that they would not constitute new information or new developments raquiring under NEPA the consideration of alternatives at the operating license stage, unless they were tantamount to the above special' circumstances. The decline in demand for power is not a change that requires the Comission to duplicate at the operating license stage its review c' alternatives.
1 Petitioner advises of te:timony expected to become availabb from several experts bearing on the subject issues.
There is no way to consider the subject metter on a piecemeal or extended basis.
Section 2.758 requires the making of a primma facie showing for a petitioner to prevail at this level. Absent such proof, as here, the petition must be denied and the matter cannot be considered further by the presiding officer.
Upon consideration of all of the foregoing, it is hereby ORDERED that the petition of the League of July 6,1982, for a waiver of, or exception to 10 CFR 51.23(e) and 51.53(c),
prohibiting the admission of contentions concerning the need for
12-power or alternative energy sources in operating license hearings is da-ied.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
? !1 0^
1 t w 2.. w.-~-fl s ~_..s.>_.
Morton B. Margulies,,C.hairman Administrative Judge Dated at Bethesda, Maryland this 5th day of August, 1982.
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