ML20245A598

Opposition of Limerick Ecology Action,Inc to Applicant Motion for Clarification of Commission Delegation of Authority & for Issuance of Ol,Or Alternatively,For Exemption from Procedural....* W/Certificate of Svc

ML20245A598
Person / Time
Site:	Limerick
Issue date:	06/15/1989
From:	Elliott C LIMERICK ECOLOGY ACTION, INC., POSWISTILO, ELLIOT & ELLIOT
To:	NRC COMMISSION (OCM)
References
CON-#289-8775 OL-2, NUDOCS 8906220084
Download: ML20245A598 (30)

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00CKETED 1 1 UNITED STATES.OF AMERICA'-

AlSNBC NUCLEAPJREGULATORY' COMMISSION

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Before the Nuclear Reculat'ory Commission '89 JUN 16 : Pi2 :06 ;

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q OPPOSITION OF LIMERICK ECOIDGY. ACTION,'INC.,TO;nP, ,

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'" APPLICANT'S MOTION FOR: CLARIFICATION.OF.THE COMMISSION'S

DELEGATION OF AUTHORITY AND FOR ISSUANCE OFJAN3 OPERATING

_ LICENSE,'OR ALTERNATIVELY, FOR'AN EXEMPTION;FROM.ANY. PROCEDURAL i REQUIREMENT THAT'A LICENSE FOR. LIMERICK UNITJ2 CANNOT ISSUEL /

UNTIL THE COiur anon REMANDED BY THE TNTRD ' CIRCUIT IS DRS:OLVED

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INTRODUCTION '

In the appeal of Limerick Ecology Action, Inc. (" LEA") from:

l the commission's. final order . authorizing the issuance. of I

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operating licenses for Limerick Units 1 and 2 1/, the ' Third a

Circuit Court of Appeals agreed ' with LEA that severe accident .I

, mitigation design alternatives ("SAMDAs") ' must' be . considered 1by the NRC.t.ader the National Environmental Policy Act, 42 U.S.C. -

Section 4321 et seq. ("NEPA") and remanded the matter to.the.NRC. -

1 sj for consideration of severe accident ' mitigation' alternatives . in accordance with - NEPA. The Court concluded that~ the Commission  ;

had not " succeeded, or attempted to succeed, in convincing this court that the-. procedurally requirements of- NEPA have been met".

.1 At the time of-LEA's' petition for' review, land at the time:

of the decision of.the Third. Circuit, nofrequest;toi" enjoin,. set aside, or suspend"'the<" grant of an-operating: license" for Unit 2' jl could possibly have been made because .no such operating licenses  !

had .been granted. This is true notwithstanding the Court's  !

k. somewhat misleading. reference - in footnote : 27 of the opinion;of- {

the Court to "the grant _'of an operating _ license to Limerick Units  !

-1 'and 2". Limerick- Ecoloav Action. Inc. v. U.S. Nuclear j Reculatorv Commission, . 869 F.2d 719, . 741, n.27. For reasons we 1 more fully _. discuss infra, the applicant Philadelphia Electric Co.  ;!

w ("PECO") coupletely mischaracterizes the import of this- footnote. l

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' I. Limerick Ecoloav Action, Inc.'et al. v. United States Nuclear.

,, Reculatory Commission, 869 F. 2d - 719,731. (3d Cir. 1989). ~The Court also concluded that because a failure to - consider . severe.

I accident: mitigation alternatives "could affect the final decision", the' Commission's conduct in precluding consideration of severe accident mitigation . alternatives was "an abuse of 1

discretion"'. 869~F.2d at 738. -

The Court also agreed .with LEA that' the Atomic knergy Act -

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-("AEA") 2/ does not preclude application of, and compliance with, l the procedural requirement's of NEPA- and that there "is -'no language in NEPA itself that- would permit its ' procedural-requirements to be limited by the AEA". 869 F.2d at .729. Thus, it is clear that the Commission may not avoid NEPA's procedural c requirements --

including the requirement .to consider severe accident design mit.igation alternatives --

in its .. decision to '

issue any operating license in this proceeding.3/-

Thus, the Commission's regulations at 10 CFR Part 51, which implement NEPA, apply to the Commission's consideration of severe accident mitigation alternatives and to any decision to actually 2

Atomic Energy Act of 1954, as amended, 42 U.S.C. Section 2011, et. seg.

3 The Court emphasized the overriding nature of the statutory mandate to obey NEPA: "Section - 102 of NEPA requires agencies to comply with NEPA 'to the fullest' extent possible',

42 U.S.C. Section 4332...and the legislative history of the phrase intended

'to the fullest extent possible' indicates that Congress that NEPA not be limited by other statutes by implication". 869 F.2d at 729.

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a issue an operating license for[ Unit'2.4/-

-10 CFR1 51.12(a). states: "Except ias otherwise ' provided D.in.

this section, the regulations in.this subpart shall; apply to'the' O

r-fullest extent practicable to NRC'si ongoing environmental' work"..

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. Thus, the. Part .51 regulations are . fully applicable; tol

the-Commission's consideration of thel severe ' accident mitigation

-alternatives asiremanded by the Third Circuit and to any issuance'-

of an operating' license for. Unit 2.

For - the reasons a we L detail'; more: fully - below, the Atomic Safety and Licensing . Board ("ASLB") constituted J by Commission Orders of,May 5, 1989 and May 12, 1989 has jurisdiction over-licensing matters which is conferred by. regulation; Commission'.

regulations require consideration of the severe' accident

,, mitigation alternatives under NEPA. prior to the issuancei of.any license or authorization to load fuel or test:at low power; and-s.

the decision and ' remand of the ' Third Circuit ' Court of Appeals 1 requires full consideration of severe accident mitigation y

alternatives in compliance with NEPA prior. to' any license j i

issuance. l 1

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Those regulations provide that the " regulations'in Subpart-this part l implement j

section 102(2) of the National ' '

Environmental Policy Act of 1969 as amended". 10 CFR-51.2.

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L.- ?II. ARGUMENT o

P. , A. The Licensing ; Board Constituted For These" Proceedings _.

Has . Licensing Authority, and ;Any Authorization;' fore Fuel?

• Loading; Or Operation: Must-EIssue' From L the --Presiding Officer,-

Uoon Motion of the Aeolicant In;its' order-dated May,5,- 1989, the Commission'dir--ted / the 5

Chairman .of. the ' Atomic . Safety and n Licensingf Board - Panel "to

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convene a Licensing Board to conduct such addit:ional proceedings j relating to?this contention as are'necessary to comely withithe 1

[ Third Circuit's] . decision [of: February ' 28,s 1989]" .'5/' Therefore,- ] ,.

the ASLB, in .accordance. with the Third Circuit's L decision, must I

comply with the " procedural requirement's of'. NEPA"- to -"the j fullest extent possible" '6/ -and thus with the- procedural 1

-i requirements of the! Commission's regulations imelementina NEPA.7/

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A This proceeding, required by' the remand- of the- Third Circuit, is clearly "in the course of a hearing on an application-for issuance of an operating license for alnuclear power reactorn8/

5 ' Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), Commission. Order _-at 1-2 (May 5 ,-- 1989)

(unpublished) (emphasis supplied). '

6 The. language " fullest extent possible" means that each agency shall comply "unless the. existing lag applicable to such agency's operations- expressly prohibit or makes t full compliance with one of the directives imeossible". Limerick Ecoleav Action.

Ing.,. , supra, 869 F.2d at 729. The Third Circuit concluded that-nothing in the Atomic - Energy Act supported the view that- the Commission was precluded.from-fully complying with NEPA. Id 7

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The Applicant. urges that it is entitled.to!an " exemption" under 51 CFR 51.6. For the reasons set forth agIR, no - such

" exemption" ' is authorized by law, or is otherwise available in-this proceeding.

2 ,, - 8 10'CFR Section 51.106 (b).

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in contrast with a " proceeding for the issuance of a construction permit for a nuclear power reactor".9/ Indeed, consideration of severe accident mitigation alternatives as required by NEPA would have occurred long ago in the course of the earlier hearings on the operating license authorizations for Limerick , but for the Commission's and Applicant's unlawful refusal to comply with NEPA at that time. Thus, this proceeding is simply that phase of the Limerick operating license NEPA proceedings which s51ould have occurred years ago, but which was delayed through no fault of intervenor.10/

Because this is a hearing "on an application for issuance of an operating license for a nuclear power reactor", the procedural requirements and safeguards of 10 CFR 51.106 (and, by reference 9

10 CFR Section 51.105.

10 Indeed, intervenor LEA insisted as early as 1981 in this proceeding that the applicant and Commission was required to consider severe accident mitigation design alternatives. See, e.g., Sucolemental Petition of Coordinated Interveners, November 24, 1981. LEA continued its efforts to obtain consideration of such mitigation alternatives throughout the licensing process.

See also, e.g., Special Prehearina Conference order, June 1, 1982, slio on. at 131-133; Conditionally Admitted Contentions, April 1983; Limerick Ecology Action Response to Licensing Board's Order of May 1, 1983; LEA's SARA /EROL Section 7 Contentions, August 31, 1983; LEA's Reply to Applicant and Staff Response to Severe Accident Risk Assessment Contentions, October 12, 1983; LEA Contentions on the Environmental Assessment of Severe Accidents As Discussed in the NRC Staff Draft Environmental Statement, Supplement No. 1, February 13, 1984; LEA Statement of Significance of NRC Severe Accident Mitigation Systems Contract Documents to LEA Contention DES-5, April 3,

? 1984. Thus, any delay in considering these matters and any effect it may have on Unit 2 licensing can scarcely be laid at the feet of LEA. Instead, it should be placed squarely on the parties who unlawfully opposed and resisted such consideration:

the Commission staff and Philadelphia Electric Co.

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, thereto, 10 CFR 50.57(c), 51.104 and 51.105) apply to the

,,, applicant's request to load fuel into and test Limerick Unit 2.

The applicant argues ' that the language of the Commission's May 5, 1989 directing the establishment of the licensing board to conduct proceedings in , connection with the remanded contention confers no power of " control of license issuance". . Applicant Motion, p.6. We believe that the May 5 order suggests no such ,

limitation on the authority of the ASLB, which is otherwise provided by regulation. The absence of express language in the order conferring " control- of license issuance" is scarcely dispositive. One need only look to the original September 9,-1981 Order establishing an ASLB to preside in this proceeding; that order did not, by its terms, confer " control of license issuance".ll/ No such language was necessary; the regulations and the statute confer such authority. See, e.a., 10 - CFR Sections 1.15, 2.104(c), 50.57(c), 51.106(b) and section 191 of the Atomic Energy Act.

Indeed, any Commission usurpation of the ASLB authority conferred by regulation would be unlawful without the express grant of the exemption also sought (in the alternative) by the applicant. The Commission cannot- simply ignore its 'own

-regulations. In this case, the regulations provide for an I

l 11 Does the applicant suggest that the original orders of the ASLB authorizing fuel loading and low power testing of Limerick Unit 1 were void and invalid as having been issued by an'ASLB

.. without any express authority to do so?  ;

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,' exemption under'certain limited' circumstances.12/ .The Applicant

,,, and > Commission cannot render j ~. meaningless'. comprehensive regulatory procedural safeguards and requirements . by relying' Lon

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the failure of an --order : to ., expressly , grant - licensing - authorityJ

- to an ASLB 'where the authority is conferredI upon it : anyway - by

. applicable regulations.

Instead, .if lthe- appidbant. claims entitlement' to. relief from'. the . regulations, it . must ! proceed . as required .by: lawi obtain .an exemption if. the 'Conidiss. ion is empowered to grant it.

B.Part 51 of the Commission's Regulations Provide that-During,the Course'of a Hearing, only the Presiding Officer, Not the Director of Nuclear Reactor Regulation,.

May Authorize the Loading of Nuclear' Fuel in'the. Reactor Core and Limited oceration '

Section 51.106 of the' Commission's regulations;provides.as follows:

51.106 Public hearings in proceedings'.for issuance.of operating licenses 4

(a) Consistent with the. requirements'of this section and-as appropriate, the presiding-officer'in an. operating license ~ hearing.

shall comolv with any applicable. requirements.

of 51.104 and 51.105.137 12'.As we note infI.g, the exoption is available only where--

the Commission deterk ;nes that it is' " authorized by law" and is.

"otherwise in the public' interest". 10'CFR 51.6.>For the-reasons-set forth below, such 'an exemption cannot be granted 1 under ~ the circumstances present here.

13 The " applicable"- requirements of .51.105 include' the-requirement that the presiding officer. " determine whether the -

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4 (b) During.the. course offa^ hearing on an

,,, application-'for.. issuance of an operating-

,y -license for a' nuclear power reactor,...

the'eresidina officer-may authorir,e;

' pursuant:to 50.57(c) of this chaper, ,

the loading of nuclear fuel-'in the. reactor j core.and limited operation within the j scopelofi50.57(c) of.this: chapter, upon compliance with the procedures described' therein.14/.~In any such hearing,lwhere

-in this.subpart have~been met". They have - not:- 102 (2),(C) . is the; requirement for: a detailed .' statement . of alternatives. to 'the

' proposedL action, which the . Third circuit found was :D9.t; met. The section also . requires the presiding officer L to; " independently.

consider the'.finalibalance among: conflicting factors'containad in q the record of the proceeding with a ~ view: to determining! the~- j appropriate action . to - be taken". Because. 'no . record has ; been established with respect to . any of the'." matters' relating to -l o

SAMDAs,:the presiding. officer cannot " independently. consider" any-such factors. It- also requiress the presiding. officer 'to

" determine, after weighing the environmental,; economic, technical

and other benefits against - environ:nental f and 1other costs, and considering reasonable alternatives; whether [the license) should be issued". Because no record concerning consideration of SAMDAs has been made, which the Third . Circuit expressly found' could affact the final action, no such weighing.of.these factors could-possibly be made on a reasoned basis on the record.

14 Under 50.57(c), "an - applicant may, . in _ a' case where a i

hearing' is held in connection with - a . 'pending._ proceeding . under this section 'make 'a motion in writing, pursuant'. to this '

paragraph (c) for an operating license authorizing low power- ..

l testing (operation at not .more than l' .percentL of.' full power for the purpose of testing the facility) and further; operations short j

i of full-power operation. Action on such a motion by'the presiding.

officer shall be taken with due - regard to r the rights of ? the:

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parties to the proceedings, including' the. right of any party L to be heard to the extent his contentions are . relevant . to , the activity to.be authorized. Prior to taking'any action on such 'a motion which any party' opposes, the presiding officer..shall make findings on the matters- ~specified _ in . paragraph ' (a); :of . this i I

section as : to : which there is a controversy, in therform ofEan -)

initial decision". The recuired. findings include:

i construction of the facility has been.substantially completed,(1). in ll 1

conformity with the construction permit and , the applicationtas i amended,-the. provisions of the Act and the rules and regulations <!

of the ' commission, . (2) the ' facility ' will operate in conformity with the application as amended, the provisions 'of the ' Act and ,

... the rules and regulations- of the. Commission, (3) there . is ll

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. . - any earty occoses such authorization on the basis of the matters covered by Subpart

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A of this part (51.10 to 51.125], the provisions of 51.104 and 51.105 will' apply as appropriate.

r, L- Thus, the eresidine officer must authorize.the " loading of nuclear fuel in the reactor core" and " limited ope [ation within the scope of 50.57 (c)", and may do so only "upon compliance with-

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the procedures described (in 50.57(c)]. 50.57 (c) provides', inter ,

O alia, that the authorization must be on motion, with action.on-the motion "by the presiding officer" to'be taken with due regard-of the rights of the parties", including the "right of any party to be heard to the extent that his contentions are relevant to the activity to be authorized".

Because LEA opposes such . authorization at this time on the basis that the requirements- of NEPA and Part 51 of the Commission's regulations implementing NEPA, .and applicable Council on Environmental Quality ("CEQ"). regulations have not been satisfied, LEA contends .that the presiding officer cannot make the findings necessary to issue -a license, nor issue the license, until NEPA and the procedures i set forth in these .

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reasonable assurance (i) that the- activities authorized by the operating license can be conducted without endangering the health a i

and safety of the public and (ii) that such activities will be '

conducted in compliance with the regulations in this chapter,

...(5) that the (financial -protection and indemnity requirements) of Part 140 of this chapter have been satisfied; -i and (6) the issuance of the license will not be inimical to the l common public.

defense and security or to the health and safety of the l 9 ,p f

- .- provisions are complied with. In addition to the express requirements of the regulations, prevailing Commission case ' law requires that prior to, issuing any-license, the Director of NRR "must find that the Commission regulations, includina those j,2pplementina NEPA, have been satisfied. " Pennsylvania Power and Licht Co. (Susquehanna), ALAB-693, 16. NRC 952,956 n.7 (1982),

citing 10 CFR 50.40(d) and 10 CFR 50.57. Further, 10 CFR 50.40(d) provides that in issuing a license, the Commis'sion is to consider whether "any applicable requirements of Subpart A of Part 51 have been satisfied". Thus, it is clear that the Commission must comply with Part 51 prior to the issuance of any license for Limerick Unit 2.

,, C. The Requirements of Part 51, NEPA, and CEQ Regulations Include the Requirement to Prepare Draft and Final Environmental Impact Statements Fully Considering Severe Accident Mitigation Alternatives Prior to Issuing Any Authorization to Operate Limerick Unit 2.

We believe that the procedural requirements of Part 51, the regulations of the Caun il on Environmental Quality, and NEPA fully apply to this procecuing.

Sueolement to draft environmental imoact statement 51.71(a) recuires_ the NRC staff to prepare a supplement to the draft EIS if: ... "(2) there.are significant new circumstances or information "e'.evant to environmental concerns and bearing on ,

l the proposed action or its impacts." In addition, 51,72 (b) provides that the "NRC staff Egy prepare a supplement to a draft EIS when, in its opinion, preparation of a supplement will 10 ,e

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further the ' purposes of NEPA", Thus, because the Third Circuit Court of Appeals concluded that the Commission's exclusion - of consideration'of SAMDAs violated NEPA, "new. circumstances" exist such that there must be, prior to any authorization of a license S. for Unit 2, s

(1) the preparation of a supplement to the draft EIS for Limerick which sets forth the necessary consideration of SAMDAs; e

(2) a' request for comments on.the draft EIS -

pursuant to 51.73 providing the required minimum 45 days for comment following the Federal Register. notice by, EPA that the draft supplement has been filed with EPA (51.73);

(3) distribution of the draft supplement pursuant to 51.74 and 51.77.

Final Environmental Statement Sucolement Following the preparation and circulation of the draft EIS considering SAMDAs, a final EIS which considers the comments to the draft EIS and otherwise complies in all respects with NEPA and Part 51 must be prepared:

51.92(a) This section provides that "if the proposed action has i i

not been taken 15/ the NRC staff will prepare a supplement to a final environmental impact statement...if (2) there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its l impacts". The Third Circuit mandate to consider- SAMDAs in f

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The license for Unit 2 of the Station has not yet been issued.

Limerick Nuclear Generating j

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..c, compliance with 'NEPA. 'is "significant new circumstances or '

information" under this section. In. addition, "significant.new  ;

information" relating to SAMDAs has been developed since 1984-5 when the contention was rejected by' the prior . Limerick ASLB.16/

{ Therefore, under 51.92, the.NRC staff must prepare a supplement-or amendment to the final EIS. This supplement or amendment must i 1

fully consider SAMDAs. i i j

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51. 9 2 (d) (1) Request for Comments. Under 51. 92 (d) (1) , a j supplement to a final EIS must be accompanied by or include a i

request for comments as provided in 51.73 if the conditions -in (

51.92 (a)' apply. Those conditions slb2 apply, as set forth above. i 4

i 51.93 Distribution .of Final EIS Supplement. The final EIS 'I supplement must be distributed in accordance with.51.93.

51.94 Requirement to Consider Final EIS "The final EIS, together with any comments and any supplement, will accompany the application...through, and be considered in, the Commission's i

decisionmaking process. The final environmental impact statement, together with any comments and any supplement, will be'made a part of the record of the appropriate adjudicatory... proceeding".

Thus,'there can be no adjudicatory decision, nor any. closure of i

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NUREG/CR-4244, " Strategies for Implementing'A Mitigation Policy for Light Water Reactors" (January, 1988);

NUREG/CR-4920, " Assessment of Severe Accident Prevention and ,

Mitigation Features: BWR Mark II containment Design (July 1988).

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.; the record, until a final EIS considering severe . accident mitigation alternatives is ' prepared and made a part . of the record. If made a part ' of the record, LEA has the right to controvert it, present testimony concerning it,.and cross-examine f

staff witnesses.concerning'it. Thus, the actual ~ hearings'cannot

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conclude - and no license can issue until this process has been completed.

51.100 Timine of Commission Action Under: 51.100 (a) (1) , [with exceptions for emergencies not relevant here] no decision on a-proposed action, including the issuance of a ... license, or other form of permission...for which an environmental impact. statement is required, will be made and no record of ' decision will be issued until the later of the following dates: (i)' 90 days after publication by the EPA of a Federal Register notice stating'that-the draft EIS has been filed with EPA; (ii) 30 days- after publication by EPA of a Federal Register notice stating that the final EIS has been filed with EPA. Thus, any hearing' schedule and issuance of the record of decision must take'into account the timing required by 51.100.

51.102 Requirement to Provide Record of Decision Under 51.102(a), a Commission . decision on any action for which a final EIS has been prepared shall. be accompanied by. or i

include a concise public record of decision.

Under 51.102(c), the initial decision of the presiding-l l

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. .- .the record, until a final -EIS- considering severe accident i I

mitigation alternatives is prepared and made a part of - the z !

record. . If made a part of the record, LEA has the right to-controvert it, present testimony concerning.it, and cross-examine 7 staff witnesses concerning it. 'Thus, the actual hearings'.cannot

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conclude and no license can issue until this process has been-completed.

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51.100 Timina of Commission Action Under 51.100 (a) (1) , [with j exceptions for emergencies not relevant here] no decision on a proposed action, including the issuance of'a ... license, or other form of permission...for which.an environmental impact statement l

is required, will be made and no record of decision will be issued until the later of the following dates: (i) 90 days after publication by the EPA of a Federal Register notice stating that the draft EIS has been filed with EPA; (ii) 30 days after publication by EPA of a Federal Register notice stating that the final EIS has been filed with EPA. Thus, any hearing schedule and issuance of the record of decision must take into account the  ;

timing required by 51.100.

51.102 Requirement to Provide Record of Decision Under 51.102(a), a Commission decision on any action for l

which a final EIS has been prepared shall be accompanied by or j include a concise public record of decision.

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Under 51.102(c), the initial- decision of the presiding l

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.. officer or the final decision of the ASLAB or the final decision of the Commission will constitute the record of decision.

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Section 51.103 sets forth the required content of the record l

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of decision. The record of decision must: )

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...(2) identify all alternatives considered by the I Commission in reaching the decision,,- l state that these alternatives were {

included in the rance of alternatives )

discussed in the environmental innact I statement,1// and specify the alternative 1 or alternatives which were considered - i to be environmentally preferable.

t l (3) discuss preferences among alternatives i based on relevant factors, including '

economic and technical considerations,  !

the NRC's statutory mission,...which I were balanced by the Commission in making ,

the decision and state how these i considerations entered into the decision. l 51.104 NRC Proceeding Using public hearings; Consideration of environmental imoact statement /I Under 51.104 (a) (1) , in any proceeding in which )

(i) a hearing is held on the proposed action; (ii) a final EIS has been prepared in connection with the proposed action; <

(iii) matters within the scope of NEPA an this subpart are in issue, the NRC staff may not offer the final EIS in evidence or present the position of the NRC staff on matters within the scope of NEPA and this subpart until the final EIS is filed with the EPA, furnished to commenting agencies, and made available to the

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17 For this reason as well, it is clear that the staff must prepare a final EIS which considers, discusses, and includes the l range of severe accident mitigation alternatives which the Third Circuit's decision required to be considered under NEPA.

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Therefore, the staff may not even pres'ent evidence on SAMDAs-

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.until a: final EIS addressing SAMDAs'is prepared,; filed with EPA 4

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D. The Exemotion Soucht By PECO Is Not " Authorized By Law"  :

1 As we noted . above, the Third Circuit determined that: the j

j Commission's conduct in authorizing the issuance of operating licenses .for Limerick failed to comply with the procedural-  !

requirements of NEPA by failing to consider severe accident 'l mitigation alternatives. While the Court stated in footnote 27 of its opinion that the Court was not asked to " enjoin, _ set determine aside, suspend...or th'a validity" of the license authorization, 869 F.2d at 741,18/ the Court concluded that NEPA was violated:

By whatever route the NRC claims to have determined'the environmental _ impact of 1 Limerick, it has not succeeded, or  !

attempted to succeed, in convincing this ]

Court that the procedural requirements of l NEPA have been met. i 18 The applicant characterizes this extremely limited .i observation (which does not even purport _.to constitute a; conclusion on the effect of the NEPA violation on any future action to issue an operating license for Unit 2) ' as "[t]he. Third .I circuit explained that its decision should not impede; the

licensing of Limerick" (Applicant Motion,. p.2) and the- Court ,

" explicitly stated that no. impediment to .[ Unit '2 issuance exists" (Id.,p.6) .

license] '

Such characterizations are not merely incorrect; they are so regrettably baseless as to appear to be intentional distortion.

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. 869 F.2d at 731.

, , The Commission is not " authorized by law" to issue nuclear power reactor operating licenses without compliance with . the procedural requirements of NEPA. Indeed, specifically with respect to consideration of severe accident mitigation alternatives, the Court held that NEPA's procedural requirements mandated such consideration in the licensing of a nuclear power reactor facility. While the ASLB decision in Limerick, LBP 25, 22 NRC 101, 116 (1985), aff'd., ALAB-845, 24 NRC'220 (1986) may have authorized the issuance of operating licenses, it did so in reliance on the Commission's erroneous determination that it had complied with Part 51 and NEPA. Under the Third Circuit's decision, that determination was legally incorrect. Thus, no reliance whatsoever may be placed on that erroneous determination.

In any event, the Unit 2 operating license had not issued as of the Court's opinion. If the Commission were to actually issue a Unit 2 license prior to consideration of severe accident mitigation alternatives as NEPA requires, such a federal action would surely be an abuse of discretion and an action " contrary to law", as was the Commission's original failure to consider mitigation alternatives in the licensing process.

The applicant relies on various cases 19/ for the proposition that NEPA deficiencies can be " rectified while leaving the underlying action in place". Applicant Motion, pp.11-12. But the

., 19 Applicant's Motion, p.11, n.17.

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., cases relied upon simply do not stand for such a proposition.

For example, the very first case cited, GUARD v. NRC, 753. F.2d 1144 (D.C. Cir. 1985) did not even involve NEPA. GUARD involved only the interpretation of an NRC emergency planning regulation.

h Further, GUARD does not address or discuss in any way " leaving the underlying action in place".20/ In Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979), and Potomac Alliance v. NRC, 682 F.2d

! 1030 (D.C. Cir. 1982), the " court found that the NRC had approved license amendments for [ nuclear power] plants in violation of NEPA and the Atomic Energy Act, but as a matter of ecuity the court chose not to order the shut-down of the plants pending the Commission's compliance". Potomac Alliance v. U.S.

@_q , 682 F.2d 1030 (D.C. Cir.1982) (Bazelon, J. concurring and writing separately, describing the court's decision' in Minnesota). Thus, Minnesota and Potomac Allianeg do not support the applicant's position. Those decisions did not involve the i

original operating license proceedings. The Court did.not " leave l the underlying [ licensing) action in place"; it merely did not order the shut-down of the plants on a license amendment challenge because of generic issues involving post-license storage of spent fuel onsite. Further, in declining to stay or l vacate the license amendments, it did so on the basis of an ongoing generic rulemaking to resolve the generic issue. In contrast here, the issue at Limerick involves the original licensing action, is site / reactor-specific, and is not amenable 20 We wonder: did applicant's counsel even read the case?

17 3

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b-4- .to generic resolution,- as the_ Third Circuit LdAcision notes.

Limerick Ecoloav' Action, supra,.869 F.2d 736-739.21/

Neither ' does NRDC v .' NRC, 606 F.2d .1261. (D.C. Cir. . 197 9)~ -

o support the applicant's . argument. In that case, the L failure 1 to -

consider variou's safety features in high.levelLradioactive waste-tanks ' intended to replace existing leaking tanks violated-- NEPA.

Because'the' tanks were' intended to replace existing. tanks'which were. leaking high-level radioactive wastes, and NRDC hareed'that new tanks must be constructed to hold the wastes currently -

leakina, - the . D.C. Circuit 'did' not. enter an injunction 'against further t'ank construction. Such an emergency safety situation'is simply not involved here.

Not only is the applicant's " authority" ~ inapplicable for

,, the reasons stated,=_but its entire premi'se is ' wrong. The' Commission is not being' asked to " leave the underlying ~. action ~'in.

place" but instead is being asked to take new action, Av , issue an operating license for Unit 2, in the face of a dispositive judicial determination that a controlling statute --.NEPA --- h'as been violated. This the Commission cannot do,_under the guise of

~

21 The Court's opinion- 'sta tes , . inter alia, "it'_is axiomatic that the generic approach _of Baltimore Gas will not suffice where the underlying issues 'are - not. generic", "SAMDAs should most appropriately be' considered on a case-by-case basis",

"it would; seem,- even on _ the Commission's: own . terms, that a' i ~

)

failure to consider SAMDAs in :' the. Limerick proceeding -could affect the final decision, and.. ...that preclusion, from-consideration'was an abuse of discretion", "the' underlying issue of SAMDAs may not be treated as a generic issue".

18 d

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ia; an " exemption" or any other. device. 22/ r s

E. The Applicant Cannot Me'et The Exemption Requirements of 10 CFR 50.12 If Aeolicable j- 10 CFR 50.~12 is limited to exemptions'"fromIthe requirements l e .

of the recrulations of this nart", 1, g , Part 50..Thus,, because the requirements! of Part il are at . issue' here, ' O . . CFR 50.12 f-4 cannot possibly afford.a. basis for the exemption sought;23/

But L .

even more substantially, to'obtain such an exemption under 10.CFR 50.12 requires at least two findings:- that the exemption; is k

" authorized by law" ' and "will not present an undue ' risk to. the public health and safety".24/ Neither finding can be made here.! f First, an exemption from the requirement to consider severe 'l accident mitigation alternatives prior to license i s s u a n c e'. i s 3

"not authorized by law" for the reasons set forth above.

li

~l Second, the failure to consider and implement cost-effective 22 It would also appear'that the relief sought by-PECO would l require an " exemption" from the procedural requirements of the a regulations of the Council On Environmental Quality which, were adopted by the Commission. See Environmental Protective s Regulations for Domestic Licensing and Related Regulatory j Functions and Related Conforming l Amendments, '49 Fed. Reg. 9352. 1 (1984). The Commission has : no : ' authority - under : any specific l regulation to effectively grant such an " exemption". 'l 23 We note, however, that 10 CFR 50.40(d) provides . that in determining that a license will be issued to an applicant, the 1 Commission will consider whether "any-applicable requirements of '

Subpart A of Part 51 have been satisfied". Thus,- to . the extent '

that the requirements of Subpart A 'of -. Part 51 have been ' thus ~ i l incorporated into Part 50, any exemption'from the requirements of Part 50 must also exempt the applicant from'the requirements.of Subpart A of Part 51.

24 '

10 CFR ' 50.12 (a) (1) .

.6.

19 )

.9 l

1

. . severe accident mitigation alternatives as required- by law {

i totally precludes any finding that the exemption will not present j

• l an " undue" risk to the public health and safety. If the severe-7 accident risk of' operation of Limerick -- particularly full power 4

)  !

[ operation --

can be mitigated with cost-effective

' 1 alternatives,25/ the risk posed by the exempted activity is

, " undue" without implementation of those alternatives, and thus l i

violates Commission regulations and the Atomic Energy Act.

The applicant also complains about the " inconsistency" of requiring consideration of severe accident' mitigation alternatives prior to Unit 2 licensing where no such consideration was required for Unit 1 licensing. PECO deems this the result of the " fortuitous" timing of the Third Circuit decision. The simple answer, of course, is that there is a' great deal of difference indeed in ordering the shut-down of an operating reactor licensed years ago in reliance on an error of law, and withholding the decision to issue another license in the face of a statutory violation. While as PECO urges, "the requirements of NEPA apply equally to both units at Limerick,

)

25 As the Commission itself has noted, the risk of operation of a nuclear power reactor is-dominated by the risk of severe ' accidents. Statement of Interim Policy, " Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969", 45 Fed. Reg. 40101,40103; Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant), CLI-83-32, 18

) NRC 1309, 1312 (Separate Views of Commissioners Gilinsky 'and

! j Asselstine) ("These most serious accidents dominate the risk j posed by nuclear power plants, even taking. into account their ]

l very low probability. Indeed, it is pointless to look at the i environmental consequences of reactor accidents unless Class 9 '

.. accidents are considered".)

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[and] so does the Third Circuit's remand 26/ the effect 'on licensina may properly differ. Indeed, far : from complaining of . -

the purported " inconsistent" treatment ' of the two units, PECO j l

should be thankful that LEA did not press the Court and this I Commission for an immediate. suspension of the Unit i license in thefaceoftheNEpAviolationfoundbytheThirdCi[cuit. .

The applicant al'so engages in " historical. revisionism" ' in I its claim that it " attempted to assure that all ~ issues were -

i resolved in a timely manner. Any delays in' licensing are beyond i

the. control of Applicant". Applicant. Motion, p.20. This claim--

1 particularly as applied to severe accident mitigation --

is patently false. To the contrary, like the NRC ' staff, the applicant resisted every single one of LEA's numerous efforts to

, obtain consideration of severe accident mitigation at an early I stage.in this proceeding.27/

Thus, the applicant cannot now complain of the timing of the required consideration of these issues: it was at fault for resisting the legally required consideration.

Finally, the applicant's Motion amazingly attempts to 1

26 Applicant Motion, p. 16.

27 LEA's efforts, as noted before, date to 1981, nearly eight years ago. See infra, p. 5, - n.10. PECO opposed each of LEA's filings and each attempt to convince the Commission to consider these matters at an early stage. PECO also opposed the LEA appeal of these matters to the Third Circuit. If PECO

> instead had taken a leadership role and considered and h

implemented the required mitigation measures, the entire issue and the ensuing litigation could have been avoided. Indeed,:to this very day, PECO continues to resist the implementation of the required changes or any legally binding commitments ' to ensure their implementation.

21 -

,. i 1 .

~

m. ignore the decision.of the Third Circuit and pretend it does not exist. In its Motion, the Applicant' baldly claims that

, NEPA and'the NRC's: regulations require only-that the environmental impacts of-the proposed-action be given a hard.look by preparation of an FES and that interveners be given anlop-portunity to review and challenge those conclusions.-This has been done. The fact'that .

a further hearing'must be conducted on a. single issue does not vitiate the'overall cost / benefit findings.in the FES [.]

-Applicant Motion, p.8.

The Third Circuit's decision was directly contrary:

In sum, by whatever route the NRC claims to have determined the environmental-impact of.

Limerick.,'it has not succeeded, or. attempted to succeed, in convincing this Court that the procedural-requirements of NEPA have been met.

869 F.2d at 731. .

,; [E]ven on.the Commission's.own terms,...a.

failure to consider SAMDAs in the Limerick' proceedingEcould affect the final decision-

.f and, therefore, that preclusion from consid- -

eration wast an abuse of-discretion.

Id. at 738.

We conclude that the FES failed' adequately.

to consider SAMDAs and,- therefore, the decisionmaker did not take the requisite H "hard look" at SAMDAs. We further conclude.

that a decision with respect to SAMDAs could affect the final decision [.)

Id., at 739.

Thus, what NEPA' requires has np1 "been done" and ERD affect the final decision to issue a license 1for the facil.ity which'is l ,

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d the subject of PECO's application. 28/

j III. CONCLUSION '

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e For all of the foregoing reasons,29/ intervenor Limerick Ecology Action, Inc.-opposes the Applicant's Motion.

4 3 I

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f POSWISTILO, ELLIOTT AND ELLIOTT By:- b

! Charles W. Elliott .1 Suite 201 j 1101 Northampton Street 1 Easton, PA. .18042 j J

(215) 258-2374 1

i

.: 28 Should PECO amend its license application to provide for  !

all of the mitigation alternatives at issue in this proceeding, such an amendment and' Commission approval of the amended application might alter this conclusion. But as of n o w ,- the action sought license for a by the applicant is the grant of an operating facility which fails to ' include 'all of the i mitigation features which are the subject of the litigation.

29 We 'also note the applicant's predictably overblown assertions of the value of Unit 2 power generation during the .

summertime.-.See Affidavit of Corbin A. McNeill, Jr. paragraph 6. i If PECO's experience for-Limerick Unit 1 is any indication, it is extremely unlikely that Unit 2 will be able to generate any significant ngt ,

electrical power contribution to the PJM Interconnection during the period suggested ~ by the McNeill affidavit. Unit 1~first achieved criticality on December 22, 1984 according to the Gray Book. But according to the Limerick Monthly Operating - Report dated June 14, 1985 (relevant portion attached as' Exhibit B) for the year to date (Jan. 1985 - May 31, 1985) Unit i reported a necative net electrical energy-generated: -72 MWH.

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• exkETED v5 %C

. CERTIFICATE.0F SERVICE

~89 ' JUN 16 ' P12 :07.

The undersigned counsel hereby certifies that a true and- .,,

. Ut Action,cy?Do correct copy of " Opposition Of Limerick Ecology T. .Inc.vTo.

" Applicant's Motion For Clarification Of The Commission's Delegation Of Authority And For' Issuance Of An Operating License.

Or Alternatively, For An Exemption.From Any Procedural .

Requirement That A License For Limerick Unit 2 Cannot Issue Until' The Contention Remanded By The Third Circuit IsLResolved" was served upon the following persons by first' class mail this-15th  !

day of June, 1989, except where it was served by' Federal Express overnight letter, as noted by an asterisk:

Lando W. Zech, Jr. Kenneth M. Carr, Chairman, U.S. Nuclear Commissioner Regulatory Commission U.S. Nuclear Regulatory  ;

Washington, D.C. 20555 Commission .

1 Washington, D.C. 20555 Thomas M. Roberts, Commissioner U.S. Nuclear Regulatory Samuel J. Chilk, Secretary Commission Office of the Secretary l

Washington, D.C. 20555 U.S. Nuclear Regulatory i Commission James R. Curtiss, Commissioner Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Morton B. Margulies, Esq.

Washington, D.C. 20555 Chairman, Atomic Safety and Licensing Board Panel Kenneth C. Rogers, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 i

Washington, D.C. 20555 Frederick J. Shon y Atomic Safety and Licensing Board. Panel l

l U.S. Nuclear Regulatory Commission

.. Washington, D.C. 20555 I

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Dr. Jerry-Harbour Mr. Ralph Hippert Atomic _ Safety and Licensing Pennsylvania Emergency Board Panel Management Agency U.S. Nuclear Regulatory Commission B151 - Transportation Washington, D.C., 20555 Safety Building Harrisburg, PA 17120 Atomic Edfety and Licensing Board _ Panel Michael B. Hirsch, Esq.

U.S. Nuclear Regulatory Commission Federal Emergency-Washington, D.C. 20555. Management. Agency 500 C Street, S.W.

Joseph Rutberg, Esq. Room 840 Ann Hodgdon, Esq. Washington, D.C. 20472 Counsel for NRC Staff Office of the General Counsel Theodore G. Otto, Esq.

U.S. Nuclear: Regulatory Commission Department of Corrections Washington, D.C. 20555 Office of Chief Counsel-P. O. Box 598 Atomic Safety and Licensing Camp Hill, PA 17011 Appeal Panel ,

U.S. Nuclear Regulatory Commission Docketing and Service Washington, D.C. 20555 Section U.S. Nuclear Regulatory Edward J. Cullen, Esq. Commission Philadelphia Electric Company Washington, D.C. 20555 2301 Market Street ,

Philadelphia, PA 19101 Robert M. Rader, Esq.

CONNER S WETTERHAHN, P.C.

Gregory Dunlap, Esq. 1747 Pennsylvania Ave, N.W.

Office of General Counsel Washington, D.C. 20006 Commonwealth of Pennsylvania P. O. Box 11775 , Office of the Secretary Harrisburg, PA 17108 U.S. Nuclear Regulatory Commission Angus R. Love One White Flint North 107 East Main Street 11555 Rockville Pike Norristown, PA 1940] Rockville, MD 20852 POSWISTILO, ELLIOTT & ELLIOTT

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NUCLEAR , REGULATORY COMMISSION pcs ,fo g ca,,

3 PHILADELPHIA ELECTRIC COMPANY 5 .

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[ Docket Nos. 50-352 and 50-353] Q[0}g _

ESTABLISHMENT OF ATOMIC SAFETY AND LICENSING BOARD .

TO PRESIDE IN PROCEEDING -

SERVED SEP 91981 Pursuant to delegation by the Commission dated December 29, 1972, published in the Federal Recister (37 F.R. 28710) and Sections 2.105, 2.700, 2.702, 2.714, 2.714a, 2.717 and 2.721 of the Comission's Regulation,s, all as amended, an Atomic Safety and Licensing Board is being established in the following proceeding to rule on petitions for leave to intervene and/or requests for hearing and to preside over the proceeding in the event that a hearing is ordered: -

PHILADELPHIA ELECTRIC COMPANY Limerick Generating Station, Units 1 and 2 Construction Pennit Nos. CPPR-106 and CPPR-107 This Board is being constituted pursuant to a notice published by the Commission on August 21, 1981, in the Federal Recister (46 F.R. 42557-58) entitle 4 " Receipt of Application for Facility Operating Licenses; Consideration

.t i of Issuance of Tacility Operating Licenses; Availability of Applicant's "

Environmental Report; and Opportunity for Hearing."

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The Board is comprised of the following Administrative Judges:

~ Lawrence Brenner, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 "r

Dr. Richard F. Cole Atomic Safety and Licensing Board Panel

- /. .o U.S. Nuclear Regulatory Commission ~

Washington, D.C. 20555 q

Dr. Peter A. Morris Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 aaf IlB.PaulCotter,Jr.

Chief Administrative Judge Atomic Safety and Licensing ,

Board Panel h.

Issued at Bethesda, Maryland this 8th day of September 1981 1

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e DOCKET NO. 50 - 352

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DAT E .luME l's,1C BS COMPLETED BY PHILADELPHIA ELECTRIC COMP AN f a '

W.M.ALDEN ENGINEE R=IN-CNARGE

, ,. NUCLEAR SECTION

, GENERATION DIVISIONWUCLEAR TELEPHON E ( 2151 841-5022 CPERATING STATUS -~

1. UNIT MAME: LIMERICX UNIT 1 1 NOTES: UNIT 1 IS IN ST ARTUP TESTING. l I

2. REPCRTING PERICO2 MAY, 1985 I I

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FACILITY OPERATING LICENSE I I

3. LICENSED THERMAL POWER (MWTl 165 i NPF-2T , ISSUED 10/26/S4, RE- 1

'l 1 4 NAMEPLATE RATING (GRDSS MWE3 : -

1092 l STRICTS PCWER LEVELS NOT TO I I .

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5. DESIGN ELECTRICAL RATING (NET MWEl s 1055 l EXCEED 5Z OF THE ' RATED PCWER. !

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e. max 1McM QEPENDA8LE CAPACITY (GROSS MWE): -

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7. MAXIMUM DEPENDA8LE CAPACITY (NET MWEl s -

1 i i S.

IF CMANGES DCCUR IN CAPACITY RATINGS (1TEMS NUMBER 3 THROUGH T) SINCE LAST REPCRT, GIVE REASCN l

9. PCWER LEV E L To dHICH RESTRICTED, IF ANY (NET MWE)*  !

10. REASCNS FOR RESTRICTIONS, IF ANY: '

l l

l THIS MCNTH YR-TD-CA TE CUMULATIVE

.e 11. hours IN REPCR TING PERICO O O O

12. NUMBER CF HOURS REACTOR WAS CRITICAL 0 1,042.1 1,0T9 8

13. REACTCR RESERVE SHUTDOWN K3URS 0.0 0 .0 0 .0 14 tours GENERATCR ON-LINE 0.0 0.0 0.0

15. UNIT RESERVE SHUTDOWN hours 0.0 0.0 0.0 g a.

GROSS THERMAL ENERGY GENERATED (MWH1 0 95,Aa8 95,0o8

17. GROSS ELECTRICAL ENERGY GENERATED (MWH3 0 0 0 ,

18. NET ELECTRICAL ENERGY GENERATED (NWH3 * -72 * -TZ * -72

19. LNIT SERVICE FACTCR 0.0 0.0 0.0 E

20. UNIT AVAILABILITY FACIQR r 00 00 04

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21. UNIT CAPACITY FACTOR (USING MOC NET) 0.0 CC 0.0 0.0 CC na

22. uMIT CAPACITY FACTOR (USING DER NET) 0.0 0.0 0.0 EC

23. LMIT FORCED QUTAGE RATE 0.0 e:C 0.0 0.0 No

24. CC SHUTDQnMS SCHEDULSD QVER NEXT 6 MQkTHS (TYPE, DATE, Ms0 CURATION OF EACHit h

C c2 cm

25. IF SHuTDQuN AT END OF REPORT PERIOD, ESTIMATED DATE CF STARTuPt nc c:c.,

a Zh. uMITS IN TEST STATUS (PRIGt 70 CDnMERCIAL OPERATIONa t FCRECAST ~ ACHIEVED

. -: ..u., -. y IAITIAL. CRITICALITY *. - -

12/I N .I.2/22/54.

. ' .Me&L .. N INITIAL. ELECTRIcrTrw'-

.s xIn AFnII. as 74/ts/as- f,4 s-ConnERCIAA. OPERATIDE 4TH QTR 45

[I EXEIBIT B -

_ _ _ _ _ _ _ _ _ --