ML20248B747
| ML20248B747 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 06/05/1989 |
| From: | Rader R CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20248B740 | List: |
| References | |
| OL-2, NUDOCS 8906090166 | |
| Download: ML20248B747 (26) | |
Text
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UNITED' STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Nuclear Regulatory Commission In the' Matter of
)
)
Philadelphia Electric Company
)
Docket No. 50-353
)
(Limerick Generating. Station,
)
Unit 2)
)
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 IS RESOLVED Introduction On February 28,
- 1989, the United States. Court of Appeals for the Third Circuit issue'd its decision in Limerick Ecology Action, Inc.
- v. NRC, 869 F.2d 719 -(3d Cir.
1989), affirming the agency action authorizing the licensing of the Limerick Generating -Station (Limerick), with two exceptions.
The Court remanded to the Nuclear Regulatory Commission (NRC or Commission) the issue of whether " severe accident mitigatien design alternatives" (SAMDA's) should be considered for Limerick pursuant to the National
. Environmental Policy Act (NEPA), 42 U.S.C. S4321 et seg.1
-1/
It also remanded another
- issue, irrelevant
- here, relating to the Graterford Inmates.
A stipulation i
resolving the concerns of the Inmates and for dismissal (Footnote Continued) i 8906090166 890605 PDR ADOCK 05000352 g
PDR i
L i
m
+ -,
The Court explicitly stated:
We' also note that 28 U.S.C.
S2342(4)
(1982) gives us " exclusive jurisdiction to enjoin, set aside, suspend (in whole or.
in part),
or to determine the validity of.
all final crders of the [ Nuclear Regulatory] Commission made reviewable by section 2239 of title 42."
In this case, however, the petitioners are not asking us to enjoin, set aside, suspend or determine the validity of the grant of an operating license to Limerick Units 1 and 2.
Rather, they ask us to remand to the Commission and order it to hold evidentiary hearings on issues the Commission should have, but failed to, consider under NEPA.2/
Accordingly, the Court remanded the SAMDA issue to the Commission for further proceedings, but. did not take any action to limit the licensing of Limerick.
The NRC issued Facility Operating License NPF-39 for Limerick Unit 1
authorizing full-power operation on August 8,
1985.
No license for Limerick Unit 2 has yet been issued.
The Third Circuit explained that its decision should not impede the licensing of Limerick.
- Normally, under Commission procedures, the NRC Staff would issue the license after making the appropriate findings and the mini-review by the Commissioners.
Nevertheless, the Staff takes the position that the delegation to the Licensing Board for (Footnote Continued) of the proceeding is awaiting approval by the Atomic Safety and Licensing Board.
2,/
Limerick Ecology Action, 869 F.2d at 741 n.27 (brackets in original).
[
g, resolution of the SAMDA issue includes the responsibility to
. authorize the Staff.to issue the license.3_/
Consequently, even though it is anticipated that Limerick Unit 2 will be ready for loading fuel and low power testing in the period of June 16-30, 1989, the Staff apparently does not intend to issue a license until the issue of tha Licensing Board's authority has been resolved or until the Board has
-authorized the issuance of the license.
The intervenor on this issue, Limerick Ecology Action, as of a conference call on June 2,
1989, had not as yet decided its position as to the issuance of the license for Unit 2.
Under these circumstances, Applicant Philadelphia Electric Company (PECO) moves that the Commission clarify its Order to specify that authority over the operating license for Limerick Unit 2 has not been delegated to the' Licensing Board and to direct the Staff, once having made 3/
By Order dated May 5, 1989, the Commission directed the Atomic Safety and Licensing Board Panel to convene a Licensing Board to conduct such additional proceedings relating to the remanded contention as were necessary to comply with the Court's decision.
On May 16, 1989, the designated Licensing Board issued a Notice of Prehearing Conference to be conducted on June 6, 1989 to consider LEA's contention that the NRC must consider certain design alternatives for the mitigation of severe accidents at Limerick.
The Commission ordered that litigation be limited to those alternatives identified by the Appeal Board in Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2),
ALAB-819, 22 NRC 681, 693-4 (1985),
as having the required basis and specificity.
L:___--__________-____-___---_
+1
,7
_a_
the > requisite findings under 10 C.F.R. _ S50.57, to issue.the license.
as we believe, the Commission makes clear that the.
t If, Staff possesses-authority to issue the operating license for L
Limerick Unit' 2, obviously there is no impediment to such action by the' Staff.
Applicant demonstrates below there is ample authority for the Staff to issue the license while the sole remaining issue is decided.
If the Commission should nonetheless determine that (1) the Licensing Board has been delegated jurisdiction over issuance of the operating license for Unit 2 and (2) that any applicable procedural regulation requires a decision on the remaining issue prior to license issuance, Applicant requests a temporary exemption from any such regulation. to permit prompt issuance of the license and operation of t'r.it 2 during the conduct of the proceeding.
Inasmuch as the remand issue relates solely to matters of environmental disclosure and consideration under 10 C.F.R. Part 51, only, the exemption criteria set forth in Section 51.6 for that Part are applicable here.
Although we do not believe that consideration of 10 C.F.R. 550.12 is pertinent to issuance of the requested exemption, out of an abundance of caution, we have addressed those exemption criteria as well.M 4/
See Limerick, ALAB-809, 21 NRC 1605 (1985).
7___
y,
's.,
.s
,..'~
7
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Finally,ninasmuch as-fuel loading ~is scheduled for.the' period. of June. 16-30,
- 1989, immediate clarification ~of.
licensing' authority is required.
Just recently in Comanche Peak,.the Commission assumed - jurisdiction where "there was some confusion over.
which Commission tribunal-had l
jurisdiction.
. [il n order to. avoid ' any ' confusion and to -
. El spare the parties needless expense and delay..
Discussion.
I.
The Commission's Delegation of Jurisdiction-to' Hear the Remanded'SAMDA Contention Did Not Include-Authority lOver Issuance of the Operating License By Order dated'May 5, 1989,.the Commission directed the Chairman of the' Atomic Safety and Licensing Board Panel:"to convene a
Licensing Board-to-conduct such additional-proceedings relating to this contention as are necessary to-comply with the [ Third Circuit's) decision.[of February 28, 1989]."6_/-
- Thus, by its very
- terms, the jurisdiction delegated to the Licensing-Board was limited strictly to the=
remaining SAMDA contention and extended only insofar as necessary to comply with the Court's decision.
-As shown at the outset, the Third Circuit set no condition on the issuance of an operating license for Unit 2 5/
Texas Uti ities Electric Company (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-89-06,-29 NRC (April 20, 1989) (slip op. at 3).
l 6/
- Limerick, Commission Order at 1-2 (May 5,
1989)
(emphasis added).
)
. _ _ _ _ _ _ _ _ =
1 I
with respect to.the completion of the remanded issue and, indeed, explicitly stated that no impediment to its issuance exists.1/
Therefore, it could' hardly be maintained that consideration of the issuance of an operating license as such would be "necessary
.to-comply with the Court's decision," as the Commission.has defined the jurisdiction of the Licensing Board in its Order of May 5, 1989.
Any residual doubt as-to the limited nature of delegated jurisdiction is dispelled by the ' very specific instructions. given - the Licensing Board that " litigation on this contention should be limited to those mitigation alternatives identified by the Appeal Board as being supported with the required basis and specificity."8_/
This is scarcely the-language the Commission would have used to endow a Board with control of license issuance.
Licensing Boards "are delegates of the Commission and, as such, they may exercise authority over only thos-matters that the Commission commits to them."b!
1/
See-note 2 and accompanying text, supra.
8_/
Limerick, Commission order at 2 (May 5, 1989) (emphasis added).
9/
Duke Power Company (Catawba Nuclear Station, Units 1
~
and-2), ALAB-825, 22 NRC 785, 790 (1985).
See also Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1,
2, 3,
and 4), ALAB-577, 11 NRC 18, 25 (1980); Northern Indiana Public Service Company (Bailly Generating
- Station, Nuclear-2),
ALAB-249, 8 AEC 980, 987 (1974).
b-
- v. :
3-
_7._
As a matter - of f act, the' duly constituted Licensing-Board in 1985 has already ordered that' the Director: of
' Nuclear-Reactor Regulation is authorize.d to issue a
. full-power' operating license for the Limerick Generating l"
Station,' Units 1 and 2, upon making the. requisite findings under 10 C.F.R.
S50.57.10/
That authorization has never L
been disturbed by the Commission and certainly was not overturned by the Third Circuit on appeal.
Thus, while the Commissioners will necessarily conduct their own customary full-power license ~ review for Limerick Unit 2, as they do in any case, the Director has already been authorized by the Licensing Board to issue the license.
The Commission should therefore clarify its delegation by directing the. Staff to issue the. license forthwith once the requisite-findings under 10 C.F.R. 550.57 have been made.
II.
There is No Procedural Requirement that Remanded Issues Be Finally Decided Prior to Issuance of an Operating License Even if the Commission should find that it has delegated authority over issuance of the operating license to the Licensing Board, it can still readily resolve the matter by finding that its regulations do not require the remanded contention to be heard prior to issuance of the license for Limerick Unit 2.
Because of the exigent 10/
Limerick, LBP-85-25, 22 NRC 101, 116 (1985),
aff'd,
~
ALAB-845, 24 NRC 220 (1986).
circumstances here, it is imperative that the Commission itself decide this fundamental issue.
There are no procedures or requirements under 10 C.F.R. Part 51 for the disposition of a remanded contention.
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 an opportunity to review and challenge those conclusions.EI 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 and Commission decisions favorable for operating Unit 2 any more than for Unit 1,
whose continued operation has never,been questioned.
Once the remanded issue has been heard, the FES will be deemed amended to reflect those findings.12/
Likewise, no procedures or requirements for judicially remanded issues exist under 10 C.F.R. Part 2.
Although an initial decision is required under 10 C.F.R. S2.760a before the Staff can issue a
- license, an initial
- decision, 11/
10 C.F.R. SS51.20 and 51.104 (a) (2).
See also Robertson
~
v.
Methow Valley Citizens Council, 57 U.S.L.W.
- 4497, 4501 (May 2, 1989)
(preparation of an FES ensures that the agency considers detailed information concerning significant environmental impacts and that the relevant information is made available to the public).
M/
Limerick, ALAB-819, 22 NRC at 704-07.
l.
i
_9 including authorization to the Staff, has been rendered.EI As discussed above, the Court's decision that another issue be heard does not vitiate the initial decision or its authorization for issuance of the license.
To achieve such a result, it would have been necessary for an intervenor to l.
have sought and obtained a stay from the Commission or an injunction from the Court, neither of which was sought or granted on the SAMDA issue.
There are numerous NRC cases in which a contention has been decided against a. licensee on appeal after issuance of an operating license.
In those cases, the NRC has applied a balancing test and permitted continued operation of the plant in most instances.14/
This situation tracks one which the Commission encountered in 1982 when the District of Columbia Circuit' Court of Appeals overturned Table S-3 for evaluating the fuel cycle contribution to the environmental cost of licensing individual reactors.
Prior to reversal by the Supreme Court in Baltimore Gas & Electric Co.
v.
Natural M/
See note 10 and accompanying text, supra.
-14/
This was. done, for example, with regard to Limerick Unit 1,
where thr'ee different safety issues were remanded for hearing after issuance of the license.
See also Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No.
2), ALAB-486, 8 NRC 9,
46 (1978)
(continued operation of Unit 2 was permitted during a
remand hearing on aircraft crash probabilities).
{..
~ - ~ ~
~
- - ~ ~
~
4..,
. n Resources Defense Council,- ~ Inc.,.
4621 U.S.
87 (1983), the Commission continued using'the.' Table S-3 rule in licensing, pending possible supplementation in a future rulemaking.
The, Commission did not hold up near-term operating licenses.
i by awaiting completion of.newL rulemaking on fuel cycle.
environmental' costs or the conduct of individual hearings in contested cases.-
Rather, it found -that any environmental impacts associated with the overturned rule " appear remote in probability while any releases (of radiation trom buried waste]
which might reasonably be expected eventually -to occur appear very small." El As'to Limerick, the Licensing Board has already found that the risks of low probability accidents "are clearly-small."El-Any consideration of SAMDA's would only further address the already small risks attributable to low probability accidents.
The federal courts have likewise allowed NEPA deficiencies to be rectified while leaving the underlying 15/
47 Fed. Reg. 50591, 50593.
A number of other NRC cases have permitted continued construction where environmental issues have been remanded at the construction permit stage.
Public Service Company of New Hampshire (Seabrook
- Station, Units 1
and 2),
ALAB-471, 7 NRC 477 '(1978);
Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155 (1978).
16/
Limerick, LBP-84-31, 20 NRC 446, 573 (1984),
aff'd,
~
ALAB-819, 22 NRC 681 (1985).
_.11 action in place.E/' The case of Alaska v.
Andrus, 580 F.2d 465, 485 (D.C. Cir.), vacated M part on other grounds sub H
nom. Western Oil & Gas Ass'n v. Alaska,--.439 U.S.
922 (1978),
i i.
is particularly illuminating in this regard.
In that case',
the Court determined that the Secretary of the Interior had failed to consider certain alternatives to the proposed.
federal action
- namely, the-possibility of including h
termination clauses in offshore leases, and the possibility-L of conduc' ting the lease sale pursuant to different operating l-orders.
The only flaw in the NEPA analysis was that the l
Secretary had' failed to consider certain alternatives to the proposed ' action.
The Court nonetheless refused to set the lease sale aside for noncompliance with NEPA.
It stated:
'At
- most, consideration of these alternatives might have led the Secretary to choose to conduct the sale somewhat differently.
Conse-quently,_we see no need to set the sale aside - while the Secretary conducts the required environmental evaluation of alternative orders; if, after conducting that evaluation, he concludes that the orders.
should - be changed, he may change them.
That is exactly the case here.EI i
17/
- See, e.g.,
GUARD v.
- NRC, 753 F.2d 1144 (D.C.
Cir.
~
19'85); Potomac Alliance v.
NRC, 682 F.2d 1030 (D.C.
Cir. 1982); Natural Resources ___ Defense Council, Inc.
v.
]
NRC, 606 F.2d 1261 (D.C. Cir. 1979); Minnesota v.
- NRC, 602 F.2d 412 (D.C. Cir. 1979); Brooks v.
AEC, 476 F.2d 924 (D.C. Cir. 1973).
M/
The courts have refused to grant injuntive relief in (Footnote Continued) i
)
I
n.
L-.<g7,;
- 12' -
s Unlike the' Atomic Energy Act (AEA), 42 U.S.C. 52011!et L
seq.,.NEPA does not. prescribe minimum substantive standards for licensing. E Since there is no basis for' requiring the i
NRC or any agency to' adopt one' alternative or another under
~
a NEPA analysis,20/' there is no reason to preclude the NRC b
from acting now to issue the license.
The environmental-cost / benefit analysis has been subject to litigation and judicially approved where challenged.
Limerick has been determined by the Commission to be safe to operate.
It must be emphasized that'the SAMDA issue does not cast any doubt whatsoever on issuance of the license; it only. concerns possible design alternatives that might be added to the plant to further reduce a
risk that has already been determined to be " clearly small."
Furthermore, as reflected in the attached affidavit of.
Corbin A.'McNeill, Jr.,
Executive Vice President - Nuclear,.
Philadelphia Electric Company at 18, PECO would agree that, for purposes of ' evaluation, the cost / benefit analysis of alternatives for Unit 2 could be viewed as of the time of (Footnote Continued) other similar cases.
See Realty Income Trust v.
Eckerd, 564 F.2d 447, 457-58 (D.C. Cir. 1977); Jones v.
District of Columbia Redevelopment Land Agency, 499 F.2d 502, 513-14 (D.C. Cir. 1974).
M/
- See, e.g.,
Robertson v. Methow Valley Citizens Council, 57 U.S.L.W.
4497 (May 2, 1989); Marsh v.
Oregon Natural Resources Council, 57 U.S.L.W.
4504 (May 2, 1989).
M/
Robertson, 57 U.S.L.W.
at 4501.
i "a 'V '
in'itial ' licensing.
Hence,. the evaluation would not be skewed by any incremental. costs associated with adding a
. design alternative after operation has commenced.
Based upon this evaluation, the fact that Unit.2 would be operated during the pendency of a hearing would not prejudice the addition of design alternatives.
'III.
In the Alternative, PECO Requests the
. Grant of an Exemption from-Any Procedural Requirement Restricting Issuance of an Operating License Pending the Conduct of the'SAMDA Proceeding PECO has demonstrated that an operating license for Limerick Unit 2 may issue forthwith, regardless of whichever Commission tribunal has jurisdiction.
If,
- however, the Commission should determine that any procedural w;uirement of its regulations necessitates completion of the SAMDA hearing first, PECO requests that a temporary exemption be granted from such requirement.
Because the SAMDA' contention.is an environmental issue, PECO believes that only matters of environmental disclosure and consideration under 10 C.F.R. Part 51 are applicable here.
PECO has therefore addressed the exemption criteria set forth in 10 C.F.R.
S51.6.
Although PECO does not' believe that consideration of 10 C.F.R. 550.12 is pertinent to issuance of the requested exemption, out of an abundance
f'.o l l
l of caution, it has addressed those exemption criteria as well.2_l,/
p A.
The Grant of an Exemption Under 10 C.F.R. S51.6 l
is Authorized by Law and is Otherwise in the Public Interest The regulations at 10 C.F.R.
S51.6 provide that the Commission may grant an exemption from the requirements of the environmental protection regulations in Part 51 if the exemption is authorized by law and is otherwise in the public interest.22/
The exemption requested here clearly meets both standards.
1.
The Grant of an Exemption is Authorized by Law.
The grant of an exemption from the requirements of Part 51 is authorized by law.
There is nothing in the AEA, NEPA or the Commission's regulations, which prohibits the grant of an exemption from any requirement of Part 51.
The federal courts, faced with similar circumstances, have refused to enjoin plant operating licenses or license amendments notwithstanding legal error by the Commission, including error under either the AEA or NEPA.
See San Luis Obispo 2J/
See Limerick, ALAB-809, 21 NRC 1605 (1985).
M/
10 C.F.R.
Section 51.6 reads as follows:
The Commission may, upon application of any interested person or upon its own initiative, grant such exemptions from the requirements of the regulations in this part as it determines are authorized by law and are otherwise in the public interest.
I '.
Mothers for Peace v.
NRC, 751 F.2d 1287 (D.C.
Cir. 1984),
vacated in part on other grounds, 760 F.2d 1320 (1985),
cert. den., 479 U.S.
923 (1986); GUARD v. NRC, 753 F.2d 1144 (D.C.
Cir. 1985); Potomac Alliance v.
NRC, 682 F.2d 1030 (D.C. Cir. 1982); Natural Resources Defense Council, Inc.
v.
NRC, 606 F.2d 1261 (D.C. Cir. 1979); Minnesota v.
NnC, 602 F.2d 412 (D.C.
Cir. 1979); Alaska v.
Andrus, supra; Brooks v.
- AEC, 476 F.2d 924 (D.C.
Cir.
1973).
An injunction prohibiting the operation of a completed project would be purely punitive and serve no underlying purpose of NEPA.
Realty Income Trust v.
Eckard, 564 F.2d 447, 456 (D.C. Cir.
1977).
2.
The Grant of the Exemption is in the Public Interest.
Limerick Unit 2 will be physically ready to begin fuel loading in the period of June 16-30, 1989.
It is estimated that it will be ready to exceed five percent power by about August 1,
1989.
Affidavit of Corbin A.
- McNeill, Jr.
at 14.
By contrast, Limerick Unit 1 was issued a
full-power operating license on August 8, 1985 and has been in commercial operation since February 1986.
Throughout the entire licensing proceeding Units 1 and 2 have been treated as the single station they are with respect to both health and safety and NEPA issues.
The FES and related licensing decisions cover both units equally.
The fact that the Third Circuit decision remanding the SAMDA contention for further consideration issued prior to the licensing cf Unit 2 is wholly fortuitous and should not I
i i
_______ _ _ O
l s.
have a
disruptive impact' on that unit.
Just as the requirements of NEPA apply equally to both units at Limer-
- ick, so does the Third Circuit's remand.
It would be patently unfair to deny licensing of Unit 2 during the pendency of the remand solely
- because, under the Commission's procedures, an operating license is not granted until just before the time it is needed for fuel loading and that need did not occur here prior to the Court's decision.
Obviously, unless the Commission elects to limit the Court's decision to plants in the Third Circuit,El the public interest will be adversely affected with regard to other near-term operating licenses.
The Staff's position must apply equally to other plants which are not yet licensed or have not yet gone to full-power.24/
By granting Limerick an exemption, the Commission will provide guidance on the consideration of SAMDA's for those facilities as well.
It is self-evident that financial hardships will ensue when a physically completed nuclear facility stands unused M/
In an amendment proceeding for Vermont Yankee, the Licensing Board apparently agreed with the parties' observation that a recent Ninth Circuit holding was not binding upon the Commission because "the Vermont Yankee reactor is not located within the confines of the Ninth Circuit."
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),
LBP-89-6, 29 NRC (February 2, 1989) (slip op. at 10).
M/
See Bevill Report (May 12, 1989).
-. ;, lq
._ 17 _
, a-and
' nonproductive because of licensing delays.
The Commission has repeatedly recognized the financial-hardships in not~ operating a licensable plant.
In denying a stay of.
the. issuance of a license-in Waterford, the Commission
. reiterated "that every day of delay in commercial operation i
of Waterford will cost the Applicant-and the public' it 1 million dollars."2_5,/
Similarly, in denying a stay serves e
?
in Diablo Canyon,. the Commission ruled that "the harm ' to others posed by even a short delay in permitting operation of a fully constructed and tested nuclear power plant is not de minimus in terms of its economic ef fect on the licensee and its ratepayers" such that "the public interest lies in the use of this plant." b
-25/- Louisiana Power Light Company (Waterfcrd Steam Electric Station, Unit 3), CLI-85-3, 21 NRC 4 71, 477 (1985).
26/
Pacific Gas and-Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-85-14, 22 NRC 177, 180 (1985).
Another aspect of the public interest cited in this case -- the orderly functioning of the regulatory will be unaffected by the completion of process hearings on the SAMDA issue in Limerick because the license can be conditioned upon the outcome of that proceeding, just as operating licenses were conditional upon the outcome of the Table S-3 litigation several years ago.
The significant value in bringing licensable plants on line as soon as practical has also been recognized in the Commission's adoption of the "immediately effective" regulations at 10 C.F.R.
- 52. 764 ( f), which have been upheld by the courts in Eddleman v. NRC, 825 F.2d 46 (4th Cir.
1987) and Oystershell Alliance v.
NPC, 800 F.2d 1201 (D.C Cir. 1986).
- .- l-J o ; The situation here is no different.
It will cost PECO, its shareholders, and customers substantial damages for Limerick _to remain idle.
Such delays will increase the cost-of Unit 2 by $35.7 million per month.
This cost figure consists of $30.4 million'per month allowance for funds used during. construction
("AFUDC")
and $5.3 million per month operational, security and maintenance costs.
Affidavit of Corbin A.'McNeill, Jr. at 15.
In addition, the fuel costs of PECO's customers will be increased by $11.9. million for each month of delay.
Affidavit of Corbin A. McNeill, Jr. at 15.
- Moreover, delays in the issuance of approval for proceeding to full power operation could impact the capacity available to the PJM Interconnection of which the Company is part during a crucial period of-this summer, i'. e., August through late September.
Any power generation from Limerick Unit 2 during this period is highly desirable and would help alleviate power shortages if they were to. occur.
The PJM Interconnection is currently experiencing power shortages due to weather and unavailability of many generating units.
Affidavit of Corbin A. McNeill, Jr. at 16.
- Finally, delays in the issuance of approval for proceeding to load fuel and to full power operation will impact the Company's ability to retain the highly qualified and experienced contractors who have been assembled to support startup and power ascension testing activities.
Affidavit of Corbin A.
- McNeill, Jr.
at 17.
The public
j
~,:
E x - -. t
_ 19 _
)
-J i
L.
interest will be best served if Limerick Unit 2 is. licensed 1
l' 0
and operating to meet the power needs of the region and these' unnecessary costs are avoided.EI The twin purposes of NEPA -- full public disclosure and the agency's "hard look"-
at environmental costs and benefitsE will be served regardless of' whether the consideration of SAMDA's takes place before or after the licensing of Unit 2.
The public will be informed regardless of when a
hearing is held.
As regards agency deci-sion-making, the cost / benefit analysis for Limerick has already been determined to support licensing.
Resolution of the SAMDA issue cannot shift this determination.
Obviously, if any design alternative were approved, its implementation 4
E/
It has previously been recognized under the criteria for exemptions in 10 C.F.R.-
S50.12 that the public interest encompasses " power needs and delay costs to the applicant and to the consumer."
Limerick, DD-86-1, 23 NRC 39, 46 (1986).
The Commission itself in revising Section 50.12 in 1985 stated that:
[J]udicial precedent and long-standing Commission practice confirm that, within the confines of carrying out its paramount responsibility to prottet public health and
- safety, it may consider econ.omic factors in its decision making.
50 Fed. Reg. 50764, 50767 (1985).
See also Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841, 24 NRC 64, 99 (1986).
M/
Robertson, 57 U.S.L.W. at 4501.
K.; ;.
20 _
L r
could only reduce a: risk that has already been found to be
" clearly small."2_9,/
Any further mitigation alternative. that is deemed L
desirable can~be added at a subsequent time.
The_ requisite findings that the plant can safely. operate have already been made.
The r.ddition of any' alternative that further reduces risk cannot change that determination.
u i
The only matter remaining to be decided in the proceed-ing'for both Units 1 and 2 is the SAMDA issue remanded by-
[
the Third Circuit.
As the Commission is aware, Applicant has attempted to assure that all issues were - reso'lved in a timely manner.
Any delays in licensing are beyond the control-of Applicant and it would be unfair for it and its customers and shareholders to bear the brunt of an avoidable economic penalty and' possible power shortages in unnecessarily delaying the grant of a license.
B.
Applicant Also Satisfies the Exemption
, Criteria Set Forth in 10 C.F.R. 550.12 The contention remanded by the Third Circuit relates solely to the consideration of alternatives to mitigate the consequences of severe accidents under NEPA. Therefore, its consideration is governed exclusively by the Commission's environmental protection regulations contained in 10 C.F.R. Part 51 and not by the health and safety regulations set 29/
Limerick, LBP-84-31, 20 NRC 446, 574 (1984), aff'd, ALAB-819, 22 NRC 681 (1985).
L i
(_
y
[ ' a ! > c-
_ 21 -
17 -
L
'forth in, inter alia, 10 C.F.R. Part 50.-
Accordingly, the
~
determinative standards for an exemption are set forth in 10 y-C.F.R. S51.6;-the. criteria of 10 C.F.R. 550.12, which govern exemptions from the requirements of Part 50, are simply not i
applicable.
Nonetheless, should it be determined that the standards of Section 50.12 or any cases interpreting those criteria are -applicable here, PECO has discussed those factors as well.
Section 50.12 provides that the Commission may grant-exemptions. from the requirements of Part 50 which are authorized by law, will not present an undue. risk to the public health and safety, and are consistent with the common j
defense and security.
Additionally, the Commission - must 1
find. that-one or more defined special circumstances is
- present, j
1.
There is No Undue Risk to the Public Health and l
Safety.
The public health and safety would not be i
I endangered by the requested exemption. b As the Commission l
is well aware, the safety review for Limerick found no undue risk to the public health and safety from plant operation.
There is simply no question that the facility meets as presently defined all safety requirements.
30]
As previously discussed at page 14-15,
- supra, the requested exemption is authorized by law.
No common defense and security matters are involved.
1
. --- -----_-__.--_-_.--_-____. - - A
i 7* 1 l
-2.
Special Circumstances Are Present.
10 C.F.R.
S50.12 (a) (2) additionally requires that the Commission no *.
grant an exemption unless special circumstances are present. b To prove special circumstances, an applicant
-31/
Special circumstances are present under 10 C.F.R. 55 0.12 (a) (2 ) whenever:
(i)
Application of the regulation in the particular circumstances conflicts with other rules or requirements of the Commission; or (ii)
' Application of the regulation in the particular circumstances would not serve.the underlying purpose of the rule or is not necessary.to achieve the underlying purpose of the rule; or (iii)
Compliance would result in undue hardship or other costs that are significantly in excess of those contemplated when the regulation was adopted, or that are significantly in excess of those incurred by others similarly situated; or (iv)
The exemption would result in benefit to the public health and safety that compensates for any decrease in safety that may result from the grant of the exempt.1>n; or (v)
The exemption would provide only temporary relief from the applicable regulation and the licensee or applicant has made good faith efforts to comply with the regulation; or (vi)
There is present any other material circumstance not considered when the regulation was adopted for which it would be in the public interest to grant an exemption.
If such condition is relied ' on exclusively ' for satisfying paragraph (a) (2) of this
- section, the exemption may not be granted until the Executive Director for Operations has consulted with the Commission.
L'P l.s.. -
l:
need only meet one of the six criteria set forth in the regulation.NI 'In this case, Applicant's request satisfies at least five of the six criteria.
Section 50.12 (a) (2) (i) provides that special circum-stances are present when application of the regulation conflicts with other rules or requirements of.the Commis-sion.
Interpreting the Commission's environmental regu-lations to prevent the licensing of Unit 2 during the pendency of the remand would' conflict with the Commission's Statement, of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981).
This Policy Statement was formulated to prevent hearings from impacting plant L
licensing.
As the Commission stressed in mandating expeditious hearing completion, the cost of delays in licensing after construction of all plants then in the licensing pipeline "could reach billions of dollars."El The cost of delay in licensing of Unit 2 alone in the instant case could easily total millions of dollars.
Section 50.12 (c.) (2) (ii) provides that special circum-stances are present when application of the regulation is not necessary to achieve the underlying purpose of the rule.
That~is certainly the case here.
The underlying purpose of 32/
See Long Island Lighting Company (Shoreham Nuclear
~
Power Station, Unit 1), ALAB-888, 27 NRC 257, 262 n.3 (1988).
y/
Statement of Policy, CLI-81-8, 13 NRC at 453.
L '.
.* A.
10 C.F.R. Part 51 is to achieve full disclosure of - the environmental effects. of the operation of Limerick and to-permit challenge to those findings.
The aim of the SAMDA contention is to test whether certain, specified alter-natives might mitigate the environmental effects of a
postulated severe accident at Limerick. There is no reason why that cannot be accomplished during the operation of Unit 2.
As shown above, operation of Unit 2 will not prejudice the outcome of the hearing on the contention.
Section 50.12 (a) (2) (iii) provides that special. circum-stances are present if compliance.with the regulations would result in undue hardship or costs that are significantly in excess of those contemplated when the regulation was adopted or that are significantly in excess of those incurred by others who.are similarly situated.
As discussed at page 18,
- supra, compliance with the Staff's decision to delay licensing of Unit 2 will cost approximately $47.6 million per month.
Moreover, other plants not yet licensed will be similarly affected inasmuch as their licenses cannot issue until there has been an opportunity to consider SAMDA's in well. b The needless imposition of such those cases as costs was clearly not contemplated in the adoption of the Commission's environmental disclosure regulations.
-34/
If, on the other
- hand, those plants are licensed without prior consideration of SAMDA's, the disparate (Footnote Continued)
- -., l.1 * '
Section-50.12 (a) (2) (v) states that special circum-
' l J
stances are present if the exemption would provide only i
temporary. relief and applicant-has made good faith efforts to comply with the regulation.
The ' requested exemption would be only for the period necessary to decide the remanded contention, and not for the entire.40-year term of the license.
The Applicant has prepared an extensive PRA and compiled en equally extensive five-volume Environmental Report which have thoroughly considered all aspects of the construction and operation of Limerick.
It is self-evident that Applicant has made a good faith effort to comply with all applicabic regulations, including the environmental dis-closure regulations of Part 51.
The schedular problems created by the timing of the Third Circuit's decision are simply beyond its control.
Section 50.12 (a) (2) (vi) provides that special circum-stances are. present when there exists any other material circumstance not considered when the regulation was adopted for which it would be in the public interest to grant an exemption.
The regulations under 10 C.F.R. Part 51 were i
intended to provide for disclosure of environmental effects in the ordinary course of an operating license proceeding.
There is nothing in the rulemaking to indicate the (Footnote Continued) treatment of Limerick is further justification for finding undue hardship here.
I
_.._____m____m
' _,. l, y-Commission anticipated that any Part 51 regulations would delay licensing where an issue previously decided is remanded for further consideration.E Conclusion For the foregoing reasons, Applicant submits that the NRC Staff is fully authorized to issue an operating license for Limerick Unit 2 and should be directed to do so once the requisite findings under 10 C.F.R.
S50.57 have been made.
If an exemption is necessary for license issuance,.the criteria of 10 C.F.R.
SS51.6 and, if applicable, 50.12(a) have been fully met and the requested relief should be granted.
Respectfully submitted, CONNER & WETTERHAHN P.C.
Troy B.
Conner, Jr.
Robert M. Rader Counsel for Applicant June 5, 1989
-35/
The criteria here are similar to the criteria in Section 50.12 (a) (2) (ii).
As discussed under that section and Section 51.6, the public interest clearly dictates that an exemption be granted.
. _ _ - _ - _ _ _ _ _ _ _ -