ML19345H205
| ML19345H205 | |
| Person / Time | |
|---|---|
| Site: | 05000463, 05000464 |
| Issue date: | 04/27/1981 |
| From: | Bradley E, Irwin D HUNTON & WILLIAMS, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | |
| References | |
| ISSUANCES-CP, NUDOCS 8105010208 | |
| Download: ML19345H205 (250) | |
Text
{{#Wiki_filter:_ _ _ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licersing Appeal Board In the Matter of ) PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-463-CP, (Fulten Generating Station, ) 50-464-CP Units 1 and 2) )
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BRIEF OF THE APPLICANT, PHILADELPHIA ELECTRIC COMPANY, ON EXCEPTIONS FROM THE DECISION AND ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD r Donald P. Irwin Lee B. Zeugin Hunton & Williams
- 707 East Main Street Eugene J. Bradley, Esq. P. O. Box 1535 2301 Market Street Richmond, Virginia 23212 Philadelphia, Pennsylvania 19101 804/788-8200 Attorneys for Philadelphia Of Counsel to Philadelphia Electric Company Electric Company Dated: April 27, 1981
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y TABLE OF CONTENTS TABLE OF CONTENTS..............................................i TABLE OF AUTHORITIES.........................................iii QUESTIONS PRESENTED........................................... 1 STATEMENT OF THE CASE......................................... 1
- 1. Introduction...................................... 1
- 2. Background of the Case............................ 3
- a. Original Construction Permit Application, July 1973-September 1975...................... 4
- b. Post-HTGR Cancellation, September 1975-March 1978.......................................... 8
- c. Early Site Review Application, March 1978-December 1980........................... 15
- 3. The ASLB Decision................................ 26 S UMM ARY O F AR GUM ENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 A R GU M E N T . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 0 I. THE ASLB ERRED IN FINDING THAT THE PERIOD SINCE SUSPENSION OF THE HTGR APPLICATION REQUIRES DISMISSAL WITH PREJUDICE............................. 30 A. The ASLB Erred as a Matter of Law in Concluding That Any Given Period of Suspension Requires Prejudicial Dismissal............................ 30
, B. The ASLB Erred as a Matter of Fact in Concluding That the Application Had Been in a State of Suspension Since 1975............................ 35 II. THE ASLB ERRED IN FRAMING AND APPLYING ITS TEST OF INTENT TO USE A SITE.............................. 37 A. The ASLB Imposed a Test of Intent Not Supported by the Atomic Energy Act, the Commission's Regulations, or Other Applicable Authority............................. 38
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B. The Board'c Dacision Unconstitutionally Deprived PE of Due Process of Law................ 46 III. THE ASLB'S FINDING THAT PE LACKED THE REQUISITE INTENT TO CONSTRUCT A NUCLEAR GENERATING FACILITY IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD...... 47 A. The ASLB Failed to Consider the Record as a Whole, and Erroneously Relied Instead on a Single Piece of Inadmissible Evidence................... 49 B. PE Had Adequate Intent to Construct a Nuclear Facility When It Filed Its ESR Amendment......... 53 IV. THE ASLB DECISION DENIED PE THE PROCEDURAL DUE PROCESS RIGHTS GUARANTEED BY THE FIFTH AMENDMENT AND THE ATOMIC ENERGY ACT............................ 56 V. THE ASLB DECISION CONSTITUTES AN UNCONSTITUTIONAL TAKING OF PRIVATE PROPERTY WITHOUT JUST COMPENSATION......................................... 59 CONCLUSION................................................... 64 APPENDIX I: Documents Cited in Brief APPENDIX II: Nuclear Licensing Application Withdrawals
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TABLE OF AUTHORITIES CASES: U.S. Supreme Court Agins v. City of Tiburon, 447 U.S. 225 (1980)................ 61 Bi-Metallic Investment Co. v. Colorado, 239 U.S. 441 (1915)..................................................... 56 Estep v. U.S., 327 U.S. 114 (1946)........................... 46 Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)......... 60, 61 Goldblatt v. Hempstead, 369 U.S. 590 (1962).................. 60 Londoner v. Denver, 210 U.S. 373 (1908)...................... 56 Morgan v. United States, 304 U.S. 1 (1937)................... 57 Nectow v. City of Cambridge, 277 U.S. 183 (1928)......... 60, 61 Oestereich v. Selective Service System Local Bd. No. 11, 393 U.S. 223 (1968)............................ 46, 47 Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978)............................ 59, 60, 61, 62 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (192)... 59, 60, 61 Richardson v. Perales,'402 U.S. 389 (1971)................... 51 San Diego Gas & Electric Company v. City of San Diego, U.S. No. 79-678, March 24, 1981............ 60, 61, 62 Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).......... 48 U.S. Court of Appeals Calhoun v. Bailar, 626 T.2d 145 (9th Cir. 1980).............. 51 Chatham v. Jackson, 613 F.2d 73 (5th Cir. 1980).............. 61 LeCompte v. Mr. Chip, Inc., 528 F.2d 601 (5th Cir. 1976). 33, 48 Smoot v. Fox, 340 F.2d 301 (6th Cir. 1964)................... 48 Willapoint Oysters v. Ewing, 174 F.2d 676 (9th Cir. 1949), cert, denied 338 U.S. 860 (1949)........................... 51
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U.S. District Court Hotel Coamo Springs, Inc. v. Colon, 426 F.Supp. 664 (D. Puerto Rico 1976).......................................... 60 NRC Decisions Consolidated Edison Company of New York (Indian Point Nuclear Generating Unit 3), CLI-74-28, 8 AEC 7 (1974).. 56, 57 Delmarva Power & Light Company (Summit Power Station,
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Units 1 and 2) (April 9, 1981)............................. 31 Detroit Edison Company (Greenwood Energy Center, Units 2 and 3), LBP-75-66, 2 NRC 565 (1975).................... 31, 58 Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397 (1976)..................... 48, 50 Niagara Mohawk Power Corp.,(Nine Mile Point Nuclear Station, Unit 2), A LAB 'e S 4 , 1 NRC 347 (1975)............... 57 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAb-455, 7 NRC 41 (1978)..................................................... 57 Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179 (1978)........................................... 49 Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), Docket No. 50-376 CP (February 18, 1981).......................... 1, 2, 34, 57, 58 STATUTES: Administrative Procedure Act, 5 U.S.C. S 556(d)......................................... 47, 50 S 706(2)(B)...................................... 47, 48 Atomic Energy Act, 42 U.S.C. S 181, 42 U.S.C. S 2231.............................. 50 S 189, 42 U.S.C. S 2239.......................... 47, 57 l l National Environmental Policy Act of 1969, 42 U.S.C. S 102(2)(c)(iii), 42 U.S.C. S 4332(2)(c)(iii).... 45
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;REGULATIONS :
2 CFR S 2.760(c)..................................... 47 10 CFR S 2.101(a-1)(1)......................... 9, 10, 39 10 CFR S 2.107........................................ 25 10 CFR S 2.600, et seq............................. 9, 39 10 CFR S 603(b)(1).................................... 41 10 C F R S 2 . 6 0 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 10 CFR S 2.606(b)(2).................................. 45 10 CFR S 2.743(c)..................................... 50 10 C F R S 2 . 7 4 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 8 10 CFR S 2.752(cf..................................... 52 10 CFR S 2.71(a)...................................... 57 10 CFR S 50.33(h)..................................... 39 10 C F R S 5 0 . 3 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 9 10 CFR S 50.58(b)................................. 47, 48 10 CFR Part 50, Appendix Q......................... 9, 10
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Federal Rule of Civil Procedure 4(a)(2)............... 39 FEDERAL REGISTER: 42 Fed. Reg. 22882 (May 5, 1977)..................... 40 45 Fed. Reg. 24168 (April 9, 1980)................... 23 45 Fed. Reg. 74493 (November 10, 1980)............... 24 MISCELLANEOUS: Safety Evaluation Report, NURE G-75/015 (March 1975)........... 4 Final Environmental Impact Statement, NUREG-75/033 (April 1975)................................................ 5 Safety Evaluation Report Supplement No. 1, NUREG-75/015 (June 1975)................................................. 4 Early Site Reviews for Nuclear Power Facilities, Procedures and Possible Technical Review Options, NUREG-0180 (May 1977)................................................. 41 Early Site Reviews for Nuclear Power Facilities, Draft Revision, NUREG-0180 (February 1978)....................... 42 Moore's Federal Practice Vol. 5 (2d ed. 1981)................. 2
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QUESTIONS PRESENTED
- 1. Whether an arbitrary period of stasis in a con-struction permit application requires the application to be dismissed with prejudice.
- 2. Whether the ASLB can, on its own initiative, con-struct a test based on a company's " firm" intent to use a site for a nuclear plant'and apply that test to dismiss with preju-dice a construction permit application.
- 3. Whether, even if the ASLB has the power to con-struct such a test, the ASLB's decision, using that test, was based on substantial, admissible evidence in the record as a whole.
- 4. Whether the ASLB deprived Philadelphia Electric Company of the procedural due process protections guaranteed by the Constitution and the Atomic Energy Act in issuing a dis-missal of a construction permit proceeding with prejudice, which acts as a decision on the merits, without notice and op-portunity for hearing.
- 5. Whether the ASLB's arbitrary decision constitutes an unlawful taking of private property without just compensa-tion.
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STATEMENT OF THE CASE
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- 1. Introduction This case arises before the Appeal Board because the Atomic Safety and Licensing Board (ASLB), in a Decision and Order dated February 27, 1981 (ASLB Decision), concluded that Philadelphia Electric Company (PE), the applicant before it, had lacked what it deemed to be the requisite degree of intent to use its proposed Fulton site when it amended a pending Construction Permit application so as to seek an Early Site Review (ESR). As a result, acting without hearing or request for evidentiary submittals on PE's subsequent motion to termi-nate the Fulton construction permit proceeding, the ASLB made the dismissal with prejudice, over PE's objection, and held itself legally required to have done so.
Because the ASLB's unprecedented action 1/ rests on the _ 1/ At least 19 applicants for construction permits from the NRC have requested within the past two years to withdraw their applications. See Appendix II hereto. Seventeen of those rt-quests have been acted on thus far by the NRC; in every case but Fulton, the application was permitted to be withdrawn with-out prejudice. In at least two of these cases, motions to com-pel dismissal of the application with prejudice had been de-nied. Detroit Edison Company (Greenwood Energy Center, Units 2 and 3), LBP-75-66, 2 NRC 565 g1975); Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), Docket No. , 50-376-CP, (February 18, 1981), 46 Fed. Reg. 14099 (February 25, 1981). Research has not disclosed any other case in the entire history of the NRC or of its predecessor, the AEC, where footnote continued
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application of a novel and unsupportable premise, not advanced by any of the parties before it, to a fundamentally incorrect analysis of the basic facts of this case, and because the deci-sion, if left in effect, could impair PE's future ability to utilize the Fulton site 2/ and could be productive of other
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footnote continued a power reactor permit application has been dismissed with-prejudice. 2/ The actual effect of the ASLB's dismissal with prejudice is not clear from the text of the Decision. It may have been intended by the ASLB only to require PE to attest somehow to compliance with its stated, albeit improper, test of intent before filing any further application for a construction permit at Fulton, with or without an Early Site Review. However, the possibility of broader, more damaging consequences which could impair PE's ultimate ability ever to utilize the Fulton site for a nuclear facility cannot be eliminated. In one recent ASLB opinion, the NRC regulation pertinent to a withdrawal of a docketed application, 10 CFR S 2.107, was characterized as "similar" to Federal Rule of Civil Procedure 41(a)(2), which deals with voluntary dismissal of complaints in U.S. District Courts following the filing of responsive pleadings. Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), Docket No. 50-376 CP (February 18, 1981), 46 Fed. Reg. 14099 (February 25, 1981). Since under Fed. R. Civ. P. 41(a)(2) a dismissal with prejudice may be considered to oper-ate as the equivalent of an adjudication on the merits, see 5 Moore, Moore's Federal ?ractice (Second Ed.), 141.05[2], the effect of the ASLB's action might conceivably be construed so harshly as to prevent PE from ever utilizing the Fulton site for a nuclear reactor. This interpretation (whether intended by the ASLB Decision or not) is given currency by a recently published statement attributed to "a source for the coalition of intervenors who had requested" prejudicial dismissal, that "he believes the decision ' closes the site evermore' to the utility. 'It's my feeling that if Philadelphia Electric ever wants to use that site, it will have to show a substantial change in its adjudicatory grounds.'" Inside NRC, March 23, 1981, p. 8. While PE does not accept this construction of the footnote continued . - - - . -- -- - -
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mischief in the meantime,3/ PE has taken this appeal. The factc of this case, while not technical, are both numerous and important. Therefore, the tortuous history of this proceeding will be examined in some detail, with partic-ular attention to those aspects relevant to the ASLB Decision. Further, since much of the pertinent information is contained in miscellaneous correspondence and pleadings, the most impor-tant documents are set forth in an Appendix for the Appeal Board's convenience.
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- 2. Background of the Case The ASLB Decision which gave rise to this appeal dis-missed with prejudice a Construction Permit (CP) application by PE, originally filed in 1973 for twin 1100MW High Temperature Gas Cooled Reactors (HTGRs) to have been built by the General Atomic Company (GAC). Proceedings on the original application had been suspended in September 1975 following full Regulatory footnote continued ASLB Decision, its cloud cannot be dispelled if it remains in effect.
3/ The ASLB Decision has led to claims by unnamed intervenors that the decision " leaves the door open for the opponents [of the Fulton project] to file suits claiming damages from the drawn out affair," Lancaster, Pa. New Era, March 10, 1981, p.10. While PE does not accept this construction of the ASLB's decision and believes that such claims would be totally ground-less, the ASLB Decision apparently could encourage their fil-ing. __
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! Staff review and extensive interparty discovery and shortly before the anticipated start of hearings, when GAC announced its unilateral cessation of work on the project. The CP appli-cation remained in a state of suspension until December 1978, when PE amended it to seek an adjudicatory Early Site Review (ESR) of the Fulton site. PE filed its papers to withdraw its application and terminate these proceedings on December 5, 1980. The three phases of this case are discussed in more detail immediately below.
- a. Original Construction Permit Aeplication, July 1973 - September 1975 PE filed its construction permit application for the Fulton Station, conceived of as a pair of twin 1100MW HTGRs to be manufactured by the General Atomic Company, on July 3, 1973, along with an accompanying Environmental Report. The applica-tion was accepted for docketing by the AEC on November 16, 1973. Between that time and the proceeding's suspension in September 1975, virtually all prehearing preparations were com-pleted. On the safety side, Regulatory Staff's Safety Evaluation Report (SER) (NUREG-75/015, March 1975), the Advisory Committee on Reactor Safeguards' letter (April 8, 1975) and the Staff's SER Supplement No. 1 (NUREG-75/015 Supp.
1, June 1975) had all been completed, and had resolved all site-related issues favorably to the application. On the _ -- _= -
5-environmental side, the Regulatory Staff had published its Final Environmental Impact Statement (NUREG-75/033, April 1975) recommending issuance of a construction permit subject to var-ious conditions for protection of the environment. The Fulton proceeding had been a contested one in both form and fact. Four private organizations, two individuals, and two townships were grouped into three intervenor coali-tions: (1) Save Solanco Environment Conservation Fund, George W. Hough and Allen D. Weicksel ("Solanco"); (2) the Townships of Fulton and Peach Bottom, Pennsylvania (" Town-ships"); and (3) York Committee for a Safe Environment, Central Pennsylvania Commmittee on Nuclear Power, and the Ccmmittee for Responsible Energy Sources of Philadelphia, Pennsylvania (" York"). Each coalition was separately represented; each par-ticipated independently in the proceeding. In addition, the States of Pennsylvania, Maryland and New Jersey filed as Interested States, but did not take an active prehearing role. ! Each of the active intervenor coalitions made clear its i opposition to the Fulton project, but varied significantly in type and extent of participation. The Townships filed various l contentions but did not undertake active discovery of PE, nor l did PE file any discovery on them. The York coalition, drawn to the Fulton proceeding ap-l ' parently by interest rather than proximity, consisted of three l
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small groups organized in three cities relatively distant from Fulton -- York (30 miles), Philadelphia (60 miles), State College (100 miles). These groups' intervention papers, as filed and never amended, attached membership lists comprised exclusively of persons living at considerable distances from the Fulton site, and centered in the three groups' towns.4/ The York intervenors filed various contentions.which were refined by stipulation dated May 29, 1974. They also filed one set of interrogatories and requests for production on PE, which were responded to on September 16, 1974. PE filed no discovery requests on the York coalition. The Solanco coalition, by contrast, was locally based (including owners of interests in four of the five parcels, totaling 113 acres, not owned by PE within the proposed 360-acre exclusion area) and ras the most active of the inter-venors. The Solanco intervenors initially advanced 69 4/ The closest address to the Fulton site shown for any mem-ber of the York Committee was Muddy Creek, Pennsylvania, 12 miles to the west of the Fulton site; the majority of members are listed as being in York, some 30 miles to the northwest (Affidavit of John H. Davenport, April 1, 1974). The Central Pennsylvania Committee was based in State College, some 100 miles to the northwest, and listed members living only in State College (Resolution of Central Pennsylvania Committee, 24 March 1974, attested to April 1, 1974 by Karen Zelinsky, Recording Secretary). The Philadelphia Committee's papers indicate a membership living entirely in Philadelphia, nearly 60 miles to the east (Attested statement of Susanne T. Gowan, January 1, 1974). i
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contentions, later reduced by a process of negotiation to 23, and obtained extensive discovery of PE. Between April 1974 and August 1975, PE responded to 19 separate sets of interroga-tories containing 930 individually numbered questions and over 90 requests for production of specific documents or classes or categories of documents. PE's interrogatories to the Solanco coalition, filed August 5, 1975, were still pending when the HTGR project came to a halt. In short, by September, 1975, when work ceased on the HTGR project, prehearing review of the Fulton application by the Regulatary Staff had been completed with favorable results and prehearing discovery among the parties was predominantly complete. It would not have been unreasonable to expect that hearings would have commenced by the end of the year. The progress of this proceeding as a " normal" construc-tion permit application was irreversibly altered in mid-September, 1975, when PE's reactor supplier, the General Atomic Company, notified PE that it was unwilling to continue work on the project under then-existing contractual arrangements, and that it was unilaterally suspending work on the project. PE notified the ASLB and all parties of this fact by letter on September 17, 1975 (App. #1).
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- b. Post-HTGR Cancell& tion, September 1975 - March 1978 In the same letter as had advised the ASLB and all par-ties of GAC's suspension of work on the Fulton project, PE in-dicated that it was assessing the Fulton application and would report its results to the Board and all parties upon comple-tion. By letter of November 26, 1975, the ASLB requested PE to report to it monthly in the interim (App. #2). On February 19, 1976, PE reported the termination of the HTGR arrangements with GAC, with the inevitable implication that the station would not be built as an HTGR (App. #3). The letter noted further that:
Philadelphia Electric will be evaluating var-ious options available to it for providing baseload electric generating capacity in the mid- to late 1980s, including the construc-tion of light-water reactor units at the Fulton site. Upon completion of this pro-cess, Philadelphia Electric will seek either to amend the existing Fulton application accordingly or to take other appropriate action. At the time the Fulton HTGR arrangements were termi-nated, there was no concept of early site review embraced by the Commission's regulations: staff reviews and adjudicatory proceedings could proceed only in the context of a complete application, including a specific reactor design. Thus PE faced two choices, neither of them ideal. It could withdraw the Fulton application at that time, presumptively losing any benefit in a future application from the two-year review
-9 process already conducted. Alternatively, it could select a new reactor design and vendor and fully amend the application -- an unusually formidable task, given the basic conceptual differences between HTGR and LWR designs.
Under the circumstances, PE chose to weigh its options deliberately beforit committing itself to any course of action with respect to Fulton, and in the meantime reported to the ASLB and parties monthly as had been requested by the ASLB. During this period neither the ASLB nor any of the parties com-plained on the record of the proceeding about the pace of PE's deliberations. In 1977, two events of relevance occurred. The first of these was the Commission's issuance, effective in June, of its Early Site Review regulations, 10 CFR $$ 2.101(a-1); 2.600, et seq., 42 Fed. Reg. 22882 (May 5, 1977). While certain aspects of these refalations -- particularly the question of whether any con spt of " intent" is embodied in them -- will be discussed later, it is important to note at the outset three j aspects of them. First, they provided for either an "adjudica-tory" review by an ASLB, 10 CFR SS 2.101(a-1); 2.600, et seq., or a Staff review, 10 CFR Part 50, Appendix Q, of any number of site-related issues designated by an applicant. The choice was to be the applicant's. The " adjudicatory" review would remain presumptively binding on the Commission as to the issues r i
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resolved by it for five years; an Appendix Q Staff review would result only in an advisory Staff Site Report not binding on the Commission. Second, only requests for an adjudicatory site review need be filed in the context of a construction permit application. Third, neither type of ESR required selection of an actual vendor or a specific reactor design; rather, each required submission of "a range of postulated facility design and operation parameters that is sufficient to enable the Commission to perform the requested review....", 10 CFR S 2.101(a-1)(1); Part 50 Appendix Q U 2. These aspects of the ESR regulations rendered amending the existing Fulton construc-tion permit application so as to seek an adjudicatory Early Site Review the first potentially attractive alternative to withdrawing the applicstion and losir.g the value of the evalua-tions already performed. The other development, beginning in July of 1977, was a series of letters, outside the formal context of this proceed-ing, complaining about the continued pendency of the Fulton application. Among these letters were two written by one indi-vidual member of the Solanco coalition (App. #4, #5), addressed to the Chairman of the NRC and to Congressman Robert Walker, whose district includes Fulton, which evoked responses from the NRC both to him and to Congressman Walker (App. #6, #7). By November 25, 1977, when Chairman Hendrie replied to Congressman
l Walker (App. #7), the Regulatory Staff had tentatively determined to file a motion to terminate the Fulton construc-tion permit proceeding on the following basis: In recent telephone conversations with management of Philadelphia Electric, the NRC staff was advi.aed that Philadelphia Electric does not have present plans to utilize the Eulton site for a power plant, and if the site is eventually uti-lized, it would likely be in the 1989 to 1993 time frame. The NRC staff will con-firm this understanding with Philadelphia Electric and will then file a motion with the ASLB, which has retained jurisdic-tion, that the proceedings be terminated. The NRC staff believes that this would be reasonable in view of the fact that the possible early utilization of the Fulton site contemplated in 1975 has not mater-ialized, and the belief that reinstitu-tion and modification of this particular HTGR application after a lapse of more than a decade could require so much updating and amendment that filing a new application would be proper. Since the communications with Congressman Walker were outside the purview of this proceeding, PE did not become aware of Chairman Hendrie's letter, or of various other items of this correspondence, until considerably later -- February 1978.5/ 5/ Mr. Spackman indicated a carbon copy to PE's President, Mr. Everett, of his July 21, 1977 letter to NRC Chairman Marcus Rowden, but no such copy of his October 11 letter to Congressman Walker. Congressman Walker did not send PE a copy of his October 20, 1977 letter to NRC Chairman Joseph Hendrie. Nor were the NRC's August 13, 1977 reply to Mr. Spackman or its November 25, 1977 reply to Congressman Walker sent directly to PE. They were, however, attached to Mr. Denise's January 30, 1978 letter to Mr. Everett. The January 30 letter itself footnote continued
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Nevertheless, because of the telephone conversations alluded to, PE was not totally ignorant of the evolution occurring in the Staff's thinking. The Commission undertook the confirmation referred to in Chairman Hendrie's letter in a telephone call on December 21, 1977 from Richard P. Denise, Assistant Director for Special Projects, to J. Lee Everett, PE's President. Following that call, Mr. Denise sent Mr. Everett a letter dated January 30, 1978 (App. #8) in which he stated his understanding of PE's intentions with respect to use of the Fulton site: In a telephone conversation on October 31, 1977, I asked Mr. V. Boyer of the Philadelphia Electric Company about plans to utilize the site in Fulton and Drumore Townships, the Fulton Generating Station site, for a nuclear power plant. Mr. Boyer indicated that use of the site might not occur until 1989 to 1993, and that eventual use of the site may or may not be for a nucl,'ar power plant. During a telephone conversation with jru on December 21, 1977, I requested that Philadelphia Electric notify the NRC of its plans to utilize this site for a nuclear power plant, and indicated that if the plans for site use were as stated by Mr. Boyer, the NRC staff would file a motion with the Atomic Safety and Licensing Board (ASLB) that the footnote continued became a victim of entangled communications, and inadvertently was not served until February 24, 1978, when it was sent out by the Commission with various items of earlier correspondence attached. l
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proceedings in this case be terminated rather than remain in the present suspend-ed condition. This letter is in confir-mation of those telephone conversations and requests. If these perceptions were valid, Mr. Denise continued, the Staff felt it would be preferable for PE to withdraw the present application and file a new one later: Since the possible early utilization of the site contemplated by Philadelphia Electric in late 1975 and early 1976 has not materialized, and any use may not come about for some time, the NRC staff believes that the status of the proceed-ings should be revised from a suspended status to a terminated status. The view that the proceedings should be terminated is not primarily based on a projected site use as far as 10 to 15 years from the present, but rather that the condi-tions contemplated in early 1976 are no longer valid, and there is not a clear benefit in retaining the present status of the proceedings. Even if Philadelphia Electric anticipated use of the site for a nuclear power plant within a few years, it may still be appropriate to terminate the present proceedings and file a new application specific to those plans when decisions on site utilization are made. Following this discussion of the Staff's views of the preferable disposition of a conventional construction permit application, Denise's letter continues: During our December 21st telephone con-versation, you noted that Philadelphia Electric may be interested in qualifying the Fulton site under NRC's Early Site Review procedures. For your information, I enclose a copy of a report "Early Site Reviews for Nuclear Power Facilities",
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NUREG-0180, which should be helpful in your consideration of this option. I suggest that you contact Mr. Malcolm Ernst at NRC for any discussion of the Early Site Review process. Three aspects of the Hendrie and Denise letters are significant in assessing the Commission's expectations, a point much belabored by the ASLB: first, the frame of reference for the expression of the Staff's concern about PE's plans for Fulton stated in both letters was that of a conventional con-struction permit proceeding, including a full reactor design. This ir most clearly illustrated by Chairman Hendrie's refer-ence to the Staff's anticipation of problems attsudant upon a hypothetical " reinstitution and modification of this particular HTGR application after a lapse of more than a decade." Second, the type of dismissal being contemplated _by the Staff was one without prejudice -- indeed, it contemplated refiling at a later time when a reacter design had been selected. Third, and perhaps most important, consideration of an Early Site Review, which had become a legally available option only earlier that year, played no part in these letters' expressions of the Staff's concern. The correspondence shows that the Early Site Review concept was not even discussed with the Commission until after Chairman Hendrie had written to Congressman Walker, and that Mr. Denise's letter refers to the Early Site Review con-cept separately from, and following, his restatement of the Staff's views on the pending conventional CP application.
- c. Early Site Review Application, March 1978 -
December 1980 Even prior to service of Mr. Denise's January 30, 1978 letter, PE had been evaluating its three basic alternatives: substitute another tjpe of reactor for the now-defunct HTGR option in a conventional CP review; dismiss the pending CP ap-plication and refile it when a successor reactor vendor was selected; and finally, amend the original application to ceek an Early Site Review in the context of a CP application, but without a designated reactor vendor. PE initially notified the Commission that it intended to amend the Fulton application to seek an Early Site Review by letter dated February 10, 1978 (App. #9), copies of which were sent to the ASLB and all parties by letter dated February 28 (App. #10). A fuller explanation of PE's decision was set forth in its reply to Mr. Denise, in a letter from Mr. Everett dated Ms.rch 8, 1978 (App. #11). Mr. Everett's letter noted that l "until last month our report letters to the ASLB reflected the fact that no concrete decisions about our future plans for the i ! Fulton site had been made." Mr. Everett's letter went on to explain that this situation had changed: Philadelphia Electric Company's current system peak demand projections indicate that the first need for additional gener-l ation after Limerick Units 1 and 2 will occur in the early 1990's. Peak demands l l
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for the post-Limerick period could be substantially higher than are currently forecast because of changes in the regional economy, demography, and a desire to switch to electricity from alternate forms of energy. Should.the high estimate peak loads occur, addi-tional generation would be needed as early as 1987. The additional generation after Limerick would be base load generation, using either coal or uranium as fuel. The economic choice is a uranium fueled plant and the prime candidate site for such nuclear generation on the Philadelphia Electric Company system is the Fulton site. In February, 1978, we notified the Commission, and the Hearing Board and parties to tha Fulton proceeding, by let-ter (copies attached) that we had deter-mined to amend the Fulton application so as to obtain an early site review. I had already intimated our interest in this option in my telephone conversation with you in December, 1977. Early site re-view, as you know, was not a course which had been available to us when the origi-nal HTGR arrangements were concluded in the winter of 1975-76; indeed, the Commission's regulations making early site reviews available (42 Fed. Reg. 22882 (1977)) did not become effective until June, 1977. Of the two types of early site review available under the Commission's regula-tions, it is our view that the adjudica-tory Early Site Review procedure, as con-trasted wth a Staff site review under 10 CFR Part 50, Appendix Q, is clearly the appropriate course of action in this case in view of the status of the record in the Fulton proceeding and our plans for the utilization of the Fulton site.
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- Accordingly, it is our intention to file with the Commission by the end of this year an amendment to the construction permit application for an adjudicatory Early Site Review for the Fulton site. (Emphasis supplied.) Mr. Everett's unequivocal declara' ion of PE's intention did not, itself, conclude the issue. The Staff met with PE and 0.11 other interested parties on May 11. Following that meet-ing, the Staff, through Voss A. Moore, sent Mr. Everett a let-ter on May 31 (App. #12) reciting receipt of Mr. Everett's March 8 letter and the holding of the meeting, and updating the Staff's position on the Fulton application: In view of PEC's representation of firm plans for action with regard to existing construction permit application by the end of the year, the NRC staff does not plan to file immediately a motion to ter-minate the present proceedings. However, the staff is currently considering the appropriateness under the regulations of amending the existing construction permit application to one for an ESR, or whether a new application for an ESR should be required. If the staff decides that a new ESR application is required, it will file a motion with the ASLB to terminate the present proceedings. (Emphasis sup-plied.) Two observations emerge from Mr. Moore's letter: first, following PE's submission of March 8, the Staff's con-cern, to the extent it involved " firm plans" by PE, was for action with respect to the existing construction permit appli-cation. Second, the Staff remained undecided about the
1 l preferability of amending the pending application versus refiling, without prejudice, a new one. Mr. Moore's letter also attached a document which he referred to simply as "a summary" of the May 11 meeting (App.
#13, attachment). The summary did not, on its face, purport to contain binding expressions of view, nor did it bear any indi- .
cia of anything other than an informal communication. Neither it nor Mr. Moore's covering letter invited corrections or com-ments on it, and neither indicated that any addressee would be estopped from disputing any of its characterizations for failure to take prompt issue with them. This informal " summary" is the one source on which the ASLB is driven to rely in its search to find an absence of pro-per intent by PE to utilize the Fulton site, ASLB Decision at 7-8. Even if it could have baon validly used by the ASLB to dispose of this entire case (which it cannot, as is shown below), it is not the indicting document which the ASLB Decision intimates. It notes PE's statement of its projected load growth and construction schedule, on the basis of which PE I l had determined to request Early Site Review at Fulton. It also j l
*ecords the Staff's response that the schedule appeared consis-tent with the time frame for ESR applications. It also notes i
j that various unrecorded questions were apparently asked, and l that PE replied to the effect that Fulton could be utilized for !
other types of plants as well as nuclear, and that its current decision to proceed with a nuclear application could be re-thought as late as about 1983. The summary also notes discus-sion of the timing and mechanics of an ESR amendment, and the Staff's reiteration of the fact that it had not yet determined whether such an amendment would be preferable to termination of the original proceeding and starting afresh. Yet another meeting was convened by the Staff on June 7, 1978, to discuss the Fulton application with all interested parties. Unofficial notes of this meeting (taken by PE) indi-cate that it was attended by representatives of two of the three intervenor ccalitions and by an aide to Congressman Walker, as well as by the Staff and PE. On July 5, Congressman Walker wrote once again to Chairman Hendrie (App. #13), requesting the Commission to " dis-courage" PE from filing a request for Early Site Review, which he characterized as "a rather nebulous course of action." Referring, presumably, to the five parcels of land not owned by PE within the proposed exclusion area, Congressman Walker con-tinued, "my constituent's [ sic] live in uncertainty, unable to be sure of their land's value and what future personal plans they can make."
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The Commission's reply to Congressman Walker (App.
#14), through William Dircks for Chairman Hendrie, was sent August 11, 1978, and is an important expression of the Commission's views. Mr. Dircks noted, first, that PF's letter of March 8 had "significantly changed the situatica existing at the time of the January [30] letter," and that conversion of a former CP application to one for Early Site Review was being permitted "in several similar cases." Mr. Dircks' language merits quoting in pertinent part:
On January 30, 1978, the NRC notified the Philadelphia Electric Company of its intent to file a motion to terminate the construction permit proceeding in the absence of firm plans for early use of the Fulton site. Philadelphia Electric Company responded by letter dated March 8, 1978, that ". . . it is our intention to file with the Commission by the end of this year an amendment to the construc-tion permit application for an adjudica-tory Early Site Review for the Fulton site." This development significantly , changed the situation existing at the l time of the January letter. . Considering these changed circumstances, the NRC staff decided not to file a motion to terminate the construction per-mit proceeding. This decision was basea on our view that Philadelphia Electric Company intends to use the Fulton site for a power plant and that in several similar cases, an applicant was permitted to amend a construction permit applica-tion to convert it to an early site re-view. (Emphasis supplied.) t
Finally, Mr. Dircks noted, even if the present proceeding were terminated, PE "would be free to apply for an early site re-view" -- an application which, as he also noted, opponents could request be terminated for reasons set forth in the appli-cable regulations. Mr. Dircks' letter was forwarded to PE, with copies to all parties, under cover of a letter dated August 25 from Voss A. Moore to PE's President, Mr. .Everett (App. #15). Mr. Moore's letter informed PE that in view of PE's representations on March 8, the Staff had determined not to file a motion to terminate the Fulton proceeding, and reads in pertinent part: In a letter dated January 30, 1978, Mr. R. P. Denise of the NRC staff wrote you that the staff would file a motion to terminate the suspended construction per-mit for the Fulton Generating Station in the absence of firm plans for early use of the Fulton site. Your letter of March 8, 1978, responded, ". . . it is our intention to file with the Commission by the end of the year an amendment to the construction permit application for an adjudicatory Early Site Review for the Fulton site." If the present proceeding were terminated, a fresh application for an Early Site Review v; ld be required. The staff considered the implications of both procedures for all parties and decided not to file a motion to terminate the construction permit proceedinas at this time. -An important factor in the decision was the statement of intention quoted above. (Emphasis supplied.) Two consistent strands running through Mr. Moore's
letters of May 31 and August 21, and Mr. Dircks' letter of August 11, bear note in view of the ASLB's concern with the Commission's expectations. First, the Staff's concern for dem-onstration by PE of " firm plans for early use of the Fulton site" related to its concern about the feasibility of amending the original, conventional CP application, not to an adjudica-tory Early Site Review application. Second, the statements by Mr. Everett in his March 8 letter relative to PE's intent to amend the CP application to seek an ESR "substantially changed" the situation and eventually satisfied the Staff, after two more meetings, as to PE's interest with respect to Fulton. PE filed its two-volume Early Site Review amendment -- one volume containing safety-related information and the other containing environmental information -- on schedule, on December 29, 1978. ' The period between PE's filing of the ESR application and filing of papers seeking its termination was marked by five principal trends or events of note, all of them already matters of record or readily documentable, but only one of them fully evident before the latter months of 1980: First, on August 8, 1979 (App. #16) the ASLB denied a motion filed in May by the "Solanco" intervenor coalition (App.
#17) and opposed by PE and the Staff (App. #18, #19) requesting that it " quash" the Staff's Early Site Review and terminate the
Fulton docket. It should be noted that the ASLB had before it in August 1979 all of the facts relative to PE's intent to use. the Fulton site cited by it in its Decision presently on appeal. Second, the Regulatory Staff formally notified PE by letter dated June 25, 1980 (App. #20) of further informational requirements that it would impose as a prerequisite to docket-ing the ESR amendment which had been filed in December 1978. These further requirements included a fundamental post-filing regulatory change: "the new guidance set forth in the Proposed Rule on Alternative Site Criteria" published in the Federal Register on April 9, 1980, 45 Fed. Reg. 24168. PE's internal evaluation of this letter concluded that the process of meeting its further requirements, particularly those of the subse-quently proposed Alternative Site rule, would be both costly and time-consuming. Other unanticipated regulatory changes, only dimly foreseen but deemed likely in the wake of the Commission's Three Mile Island evaluation (see Fourth item, below) were felt likely to have a similar effect. Third, PE's weather adjusted peak load growth rate from 1977 through 1980 had been less than 1.4% annually (197 ' peak of 5580MW, 1980 peak of 5810MW) in comparison with the long-range growth rate of about 2.7% (over 3% in the near term) being forecast at the time PE determined in early 1978 to seek
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an Early Site Review. Concurrently, financing burdens for new construction had not eased relative to 1978 levels. Fourth, the NRC's internal evaluations following the
Three Mile Island accident in March 1979 had resulted in the diversion of Staff regulatory personnel to these matters (re-sulting in, e.g., the 18 month interval between the filing of PE's ESR Amendment and receipt of a precocketing letter) and to a perception, rightly or wrongly, that other matters were higher on the Commission's list of priorities than processing Early Site Review requests for plants not planned for operation until the mid-1990s. Fifth, and probably least important to PE's decision to terminate Fulton (except, perhaps, as to its exact timing with- , in a span of several weeks), was the Commission's proposal in the fall of 1980, 45 Fed. Reg. 74493 (Fovember 10, 1980), to exact substantial fees, beyond the initial filing fee assessed l upon filing of a CP application, in connection with withdrawn l ! applications. In view of the numerous open questions relating to whether the Commission had, in fact, already implemented its l ( full authority on this matter (App. #21) and the sizeable i j nature of the fee proposal being advanced by the Staff -- ap-proaching one million dollars in some instances (App.
#22) -- PE's attention to this matter in the exact timing of I
its decision to withdraw the Fulton application was understandable. l I
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The papers leading to withdrawal of the application and termination of the Construction Permit proceedings were submit-ted by PE on December 5, 1980 in a brief motion and accompany-ing letter (App. #23). Pursuant to S 2.107 of the Commission's Rules of Practice, 10 CFR $ 2.107, PE requested that the termi-nation be withoat prejudice. The NRC Staff concurred in PE's motion (App. #25). Neither the Solanco intervenors nor the Townships -- the local organizations most directly affected by the Fulton application -- objected to PE's proposal, or indeed med- any response to it. Only the distant York intervenors f; anything: a brief paper (App. # 25) reciting a variety of ors of random relevance to Fulton alleging a wide array of harm to its membersg/ from what it characterized as PE's p/ Two of the York paper's contentions bear comment. First, as to adverse effects alleged on the price of real property in the Fulton vicinity, York simply has never claimed any members living in the immediate site vicinity; and neither the Solanco intervenors nor the Townships (which are proximate) made any such claim. Further, it goes almost without saying that effects, if e.ny, of the Three Mile Island accident on property values on land nearly 50 miles away cannot be attributed to Fulton. Finally, as to York's assertions of burdens imposed on it by the continued pendency of the Fulton application, the simple truth is that during the entire period between the ter-mination of the original HTGR arrangement and PE's filing of its motion to dismiss the Fulton proceeding, none of the inter-venors was compelled by PE to perform any work or incur any costs by virtue of the application's continuing pendency. PE sought no discovery of them (indeed, released them from all previously pending requests). PE filed no papers requiring action by them. The only two events commending active effort by intervenors -- the meetings of May 11 and June 5, 1978 -- were convened at the Staff's request. All of various footnote continued
" frivolous insistence on keeping [the Fulton application]
alive" since 1975, and moving that dismissal of the application be with prejudice. PE opposed the York motion (App. #26), arguing that its action had been proper and that its request for dismissal had been motivated by the accretion of events and a full assessment of their effect on the application.
- 3. The ASLB Decision On February 27, 1981, the ASLB issued its Decision and order (App. #27). The ASLB Decision, while referring in pass-ing to PE's filings (ASLB Decision at 1, 2) and to the York intervenors' allegations of harm, id. at 2-3, did not rest on these arguments. Rather, as is discussed more fully below, the ASLB rendered its decision on the basis of a test of intent for use of the Fulton site which it found the Staff had imposed on PE in connection with PE's amending its CP application to seek an Early Site Review: something to the effect -- though its expression varies throughout the Decision -- that PE must have
" firm plans" for "early use" of the Fulton site for a nuclear
- station. See ASLB Decision at 3, 4, 6, 7, 8. Finding no footnote continued intervenors' other efforts -- motion to quash the ESR, letter-writing campaigns, request that PE's motion for dismis-sal be granted but with prejudice -- were purely voluntary and undertaken at their initiative. They have suffered no legally cognizable harm by virtue of PE's actions since 1975.
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evidence since 1975 of such an intent in PE's actions or ' statements, the ASLB concluded that its Early Site Review Amendment was inconsistent with the purpose of the ESR regula-tions. Armed with this conclusion, the ASLB reasoned that it could totally disregard both the fact of, and the events con-nected with, the preparation and filing of the ESR Amendment in determining how long the Fulton application had been suspended. The ASLB thus found that the application had been in a state of
" suspension and uncertainty since 1975". Id. at 8. Next, without any adorning explanation or justification, it pro-nounced that a five-year period of suspension was "too long to justify a dismissal without prejudice." Id. Accordingly, it held, it "must" dismiss the proceeding with prejudice. Id.
(emphasis supplied). 3 l
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SUMMARY
OF ARGUMENT The ASLB's decision to dismiss the Fulton CP applica- ) i i tion with prejudice stands as an excellent example of adminis-trative over-reaching. The ASLB misperceives not only the pro-visi~ of the Atomic Energy Act and of its implementing regu-lations, but also the limits of its own authority under those laws. The ASLB's short-sightedness extends as well to the fac-tual bases of its decision. In so doing, the ASLB has denied PE due process of law and just compensation for the taking of its property in contravention of the Fifth Amendment. The ASLB bases its prejudicial dismissal on two unten-able legal theories. The first -- that a five-year period of inaction in a CP application requires a dismissal with preju-
dice -- finds no support in the Atomic Energy Act or implement-ing regulations, and is in fact, directly contrary to earlier case law with the Commission. The second -- that a requisite level of intent must exist prior to a request for an Early Site Review -- is solely a creature of the ASLB's own making with no support from either the Atomic Energy Act or its implementing regulations. Even if one were to accept these theories, the ASLB has failed to consider and properly analyze PE's expressed inten-tions and the NRC Staff's appraisals of those intentions, all of which are in the record. The ASLB improperly relies instead
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solely on a single paragraph of an inadmissible meeting summa.y to construct the legal and factual bases for its ultimate deci-sion to dismiss with prejudice. , The ASLB developed its legal and factual theories in isolation. No party raised the issues in connection with PE's request for a dismissal without prejudice. The ASLB was there-fore obligated by the Due Process Clause of the Fifth Amendment to provide parties notice of, and a hearing on, these new grounds. Its failure to do so constitutes an unconstitutional violation of PE's rights. - Finally, the ASLB's decision operates as a taking which deprives PE of valuable property rights. The taking of these
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property rights without just compensation violates the Fifth Amendment to the Constitution. For all these reasons, the ASLB's decision must be re-versed, and the CP application dismissed without prejudice. _
ARGUMENT I. THE ASLB ERRED IN FINDING THAT THE PERIOD SINCE SUSPENSION OF THE HTGR APPLICATION REQUIRES DISMISSAL WITH PREJUDICE A. The ASLB Erred as a Matter -f Law in Conci'iding That Any Given Period of Suspension Requires Pre 3udicial Dismissal (Exceptions 4, 5, 6, 27, _2) The ASLB concluded, because it did not believe PE had evidenced a proper intent to use the Fulton site, that the Fulton license application had been in suspension since late 1975. See ASLB Decision at 8. Is concluded also that this period, extending approximately five years to the time of PE's request for termination of the Fulton proceeding, was "too long to justify a dismissal without prejudice. Accordingly this proceeding must be dismissed with prejudice." Id. ' The plain implication to be drawn from the AHLB's lan-guage is that a five-year period of suspension in an yplica-tion requires not only dismissal, but dismissal with prejudice. As will be shown, pp. 35-37 infra, the ASLB was incorrect in finding that the application was in a period of suspension for j five years. Even accepting that finding for the sake of argu-l ment, however, one looks in vain in the ASLB Decision for any reasoning which would support any thesis other than the bald proposition that a five-year period of suspension, in and of itself, requires dismissal of an application with prejudice. i I '
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That proposition is indefensible. It is also totally inconsistent with other Commission precedent, see note 1 supra. In one recent case, for example, an application was withdrawn without prejudice after having lain, in fact, totally inactive for over five years without any amendment (in 1975 the reac- ! tors, also HTGRs, were canceled after receiving a Limited Work Authorization). Delmarva Power & Light Company (Summit Power Station, Units 1 and 2), Docket Nos. 50-450, 50-451 (April 9, 1981). The ASLB Decision cites no authority for its proposi-tion, and the reason is simple: there is none to be found. The Atomic Energy Act contains no provisions defining the length of time during which an application may be pending or the pace at which it must be developed. Nor is any such period to be found in the Commission's regulations. Indeed, in the one case located directly on point, Detroit Edison Company (Greenwood Energy Center, Units 2 and 3), LBP-75-66, 2 NRC 565 (1975), the Atomic Safety and Licensing Board denied a motion to compel withdrawal of an application for a project whose com-pletion date had been substantially extended. In that case, the ASLB ruled: I We perceive no legal requirement for an Applicant to proceed with the processing l of its application in accordance with any i set time scale. It is clear that the Atomic Energy Act does provide that in a case where a construction permit has been
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issued "[t]he construction permit shall state the earliest and latest dates for the completion of the construction...". Section 185, 42 U.S.C. 52235. And the failure to complete the facility by the prescribed deadline will result in a for-feiture of the permit and all rights thereunder unless for " good cause shown" the deadline is extended by the Commission [ citations omitted.] But here we are concerned not with an actual con-struction permit but with the processing of an application for a construction per-mit. Surely, the temporal flexibility appropriate to review of an Early Site Review application is even greater than that in the
; context of an ordinary CP application.
Indeed, the criteria for compelling withdrawal of an application, with or without prejudice, in relation to'any time period, are those of the type enumerated by Chairman Hendrie in
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his letter to Congressman Walker of November 25, 1977, see pp. ! 10-11, suora: concern that a delay in a project may be of suf-ficient magnitude that the reconstitution and reactivation of i an application may simply require more work than it saves, or may proceed on premises which are no longer technically sout.J. i In the present case, the Regulatory Staff, after extensive de-liberations to which the ASLB paid no heed in its Decision, concluded that conditions commending forced withdrawal of the , application were not present. Indeed, even had the Staff sought to compel withdrawal of the application, that withdrawal would have been without prejudice. l ! l \ l l l l
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~33-The only possible grounds on which the ASLB could have sought to justify prejudicial dismissal relate to legal harm actually occurring from continued pendency of the application.
See LeCompte v. Mr. Chip, Inc., 528 E.2d 601, 604 (5th Cir. 1976). Yet its reasoning shows no such basis for its conclu-sion. Although it refers to allegations of harm by inter-venors, ASL3 Decision at 2-3, its holdings and reasoning later in the decision make no reference to them. Indeed, even in its passing references to allegations of harm, the ASLE confuses the identities among the various intervenor coalitions.7/ This is not to suggest that uncertainties involving land usage can, in themselves, justify a dismissal with prejudice. To the con-trary, courts have consistently held that the mere prospect of a successor lawsuit, comparable to a successor CP applicati,n, does not warrant a dismissal with prejudice. LeCompte v. Mr. Chip, Inc., 528 F.2d at 604, quoting from Holiday Queen Land Co rp . v. Baker, 489 F.2d 1031, 1032 (5th Cir. 1974). Indeed, a 7/ As has been pointed out above, the intervenors claiming harm to their land values and utilization from the pendency of the application were immediate residents, found only in the Solanco coalition. The Solanco coalition did not file any papers in connection with the motion to dismiss the applica-tien. Only the York intervenors -- located 30 to 100 miles away -- filed, and none of their pleadings in this case assert, much less demonstrate, that any of them owned property which, at that distance, was adversely affected by the pendency of the application.
recent Atomic Safety and Licensing Board decision has adopted exactly this reasoning in granting an applicant's motion to terminate a construction permit proceeding and denying a motion to dismiss the application with prejudice. Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), Docket No. 50-376 (February 18, 1981), 46 Fed. Reg. 14099 (February 25, 1981). The one other possibility of a finding of harm which might justify a dismissal with prejudice might stem from the ASLB's finding of insufficiently ardent intent by PE to use the - Fulton site: in essence, a finding that PE had filed a frivo-lous amendment to its application. Yet the ASLB's reasoning does not support even this conclusion. At most, its stated standard of intent, if tenable (which it is not), could require dismissal of the application over an Applicant's objection. Absent some kind of further showing of fraudulent intent or other abuse of process by an Applicant, however, even such a finding would not warrant, much less compel, dismissal with prejudice. Here, once again, the primary guidance may be found ' in the Staff's reaction, since the Staff had been in much more intimate contact with the application than the ASLB. The Staff, of course, did not suggest prejudicial dismissal but rather supported the Applicant's motion for dismissal without prejudice. Indeed, the ASLB's own memorandum decision in L
August 1979 denying the Solanco intervenors' motion to compel dismissal of PE's application further undermines its present action. Its February 1981 Decision takes note of no facts rel-evant to PE's intent in requesting Early Site Review and occur-ring since its August 1979 memorandum decision. Thus, if any-thing, by denying the earlier motion to compel dismissal of the application, the ASLB gave PE a misleading signal as to its views of the propriety of PE's ESR application. In short, there is no basis in statutory, regulatory or decisional law, nor in the logic of the ASLB Decision, to sup-port its conclusion that the period of suspension of the appli-cation warrants, much less requires, its dismissal with preju-dice. On this basis alone, the ASLB Decision should be re-versed. B. The ASLB Erred as a Matter of Fact in Concluding That the Application Had Been in a State of Suspension Since 1975 (Exceptions 3, 18, 23) I ! The central factual predicate for the ASLB's conclusion j that a five-year suspension requires dismissal of an applica-tion with prejudice is, of course, the factual finding that such a period of suspension did actually occur. However, no such suspension took place. There was a period of suspension in the application from the fall of 1975 through the early win-ter of 1977-78, punctuated by the Applicant's periodic reports t l l <
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to the ASLB. However, as of March 1978. activity on the application resumed. At that time PE declared its intent, as clearly as words would permit, to seek an Early Site Review of the Fulton site in connection with its proposal to site two units there in the early to mid-1990's. Two face-to-face meet-ings with the Staff and all other interested parties ensued in coming months, along with various other collateral communica-tions. Based on the Staff's conclusion tit t the statements in PE's letter of March 8th met whatever degree of intent to use a site the Staff required, PE undertook the considerable task of reviewing the pending Fulton application and environmental re-port and adapting them by the end of that year to the format for an Early Site Review. Nor did the ASLB itself act as though it considered the application still to be in a state of suspension when, in
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August 1979, it denied the Solanco intervenors' motion to dis-miss the application. Since that time, the Staff completed its pre-docketing review and confronted PE with a host of further requirements which, along with other circumstances, see p. 23 supra induced PE to rethink, within a space of months, its de-cision two years previously to proceed with an Early Site Review. PE submits that, in order to have found that a period of suspension continued unabated since 1975, the ASLB had to . . _ . . . .-. .- .
totally disregard facts involving good-faith declarations of purpose, many man-hours of preparation of an application in reliance on an understanding that its declarations of purpose were acceptable, and the ASLB's own apparent acquiescence scarcely a year before in those declarations. In short, the-- ASLB's finding that a period of suspension existed since 1975 cannot be sustained on the facc; and the dismissal with preju-
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dice based on that finding must be reversed. II. THE ASLB ERRED IN FRAMING AND APPLYING ITS TEST OF INTENT TO USE A SITE The means relied on by the ASLB to avoid the obvious import of PE's numerous actions with respect to its Fulton ap-plication since 1975 was its finding that PE lacked some requi-site degree of intent to utilize the Fulton site. On the basis of this finding -- variously phrased by the ASLB throughout its Decision -- the ASLB found itself able to conclude that PE's entire set of efforts with respect to its Early Site Review amendment was "outside of the purpose and intent" of the Early Site Review regulations, ASLB Decision at 8, and therefore that these efforts could be totally disregarded in determining how long the Fulton application had been in a state of suspension. The ASLB was incorrect with respect to its test of intent to utilize a site in an adjudicatory Early Site Review and should be reversed on that ground. i
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A. The ASLB Imposed a Test of Intent Not Supported by the Atomic Energy Act, the Commission's Regulations, or Other Applicable Authority (Exceptions 1, 9, 10, 11, 19, 22, 24, 25, 31) The ASLB decision involves a conclusion that PE, when it filed its ESR request, lacked some minimum threshold of intent which the ASLB found necessary to even permit access to the ESR process. The actual standard being groped for by the ASLB never emerges with precision, being variously character-ized in at least five different ways: (1) " firm plans for early use" of a site, ASLB Decision at 3: (2) " firm plan to construct nuclear facilities on the site", ASLB Decision at 4, 7; (3) something other than "no present intention to construct a nuclear facility", ASLB Decision at 5; (4) something other thar. " mere desire for an Early Site Review in anticipation that a decision to use the site may be made at some future time", ASLB Decision at 5; (5) " full intention of building a nuclear facility on the site", ASLB Decision at 6. In toto, the ASLB's test seems to require (1) firm plans for (2) early use of (3) the chosen site for (4) nuclear facilities. While this test may be a description of an ideal set of circumstances for an untroubled application for a con-ventional construction permit, it does not describe the appli-cable requirements for filing either a CP application or a re-quest for Early Site Review. . L
Neither the Atomic Energy Act, nor the Commission's regulations, nor any other applicable authority purports to set forth the test of intent proposed by the ASLB. The Act is totally silent on the matter, though it prescribes various types of information which an applicant fcr a construction per-mit must provide. The Commission's regulations governing con-struction permit applications merely implement the Act. They . require a variety of kinds of information about the applicant, 10 CFR 5 50.33, including the earliest and latest dates pro-posed for completion of construction, 5 50.33(h), and about the proposed facility, SS 50.34, 50.34a. Further requirements gov-erning the actual issuance of construction permits are set forth in 5 50.35. No test of intent of the type described by the ASLB is set forth in any of these places. One plausible explanation for the Act's and implementing regulations' silence is that the cost and effort of preparing an application, com-bined with the proepect of running the licensing gauntlet, ap-parently has furnished adequate assurance of intent on an applicant's part to build a nuclear power plant. The Early Site Review regulations, 10 CFR 55 2.101(a-1), 2.600, et sec. (App. w28), set forth no further requirements of a pledge to construct than do the standard con-struction permit regulations: they merely specify the manner in which an adjudicatory ESR fits into the context of a _ - - -
4 ' construction permit evaluation. In this connection, the ASLB's first citation to the Statement of Consideration accompanying the ESR regulations, ASLB Decision at 5, lines 3-8, totally misses the mark. Rather than adding to or defining a standard of intent for would-be applicants, the actual passage -- which the ASLB abridges -- merely distinguishes those adjudicatory ESRs which, under the Commission's present statutory authority, must be made in the context of an overall construction permit application, from nonadjudicatory reviews pursuant to 10 CFR Part 50 Appendix Q, which need not be in the context of a con-struction permit. It sets out no test of intent at all. The intended flexibility of the Early Site Review regu-lations is more accurately recognized by the ASLB in its second citation to the Statement of Considera. tion, ASLB Decision at 5, lines 12-22. There the Commission prcvides that the ESR proce-dure be open to: all qualified construction permit appli-cants, including applicants who did not request Early Site Review of site suita-bility issues at the time of their ini-tial application but who later decided, following postponement of the target date
- for actual construction of the facility, l that this procedure would be advanta-geous.
42 Fed. Reg. at 22863, col. 2. Indeed, the ASLB does not even refer to the closest approach to an additional requirement in the ESR regulations l l l l I - . . - . -. , _ - - _ - -_. -- --
for demonstration of intent to use a site: the requirement, in 5 2.603(b)(1), that an ESR request "briefly describe the applicant's long-range plans for ultimate develcpment of the site." Nor does it note that the ESR. regulations list, at 5 2.605, four grounds on which an ASLB may decline to proceed with an adjudicatcry ESR, and that its test of an applicant's intent is not among them. The informal regulatory guidelines published by the Commission with respect to Early Site Reviews provide yet greater evidence of the flexibility intended by the Commission, and give no hint of resonance with the ASLB's straitened test of intent. With respect to need for a site, NUREG-0180 (May 1977) states, at p. A-VIII-1: Need for site (Regulatory Guide 4.2: Sections 8.1, 8.2, 9.1, 9.2) - Need for site is justified by a reasonable likelihood of future need for a nuclear baseload facility in the generating system of the applicant (s).
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l Option 1 - Full Treatment - This would be difficult to do because of lack of specific ! cost data and high uncertainty in making very long range forecasts of need for power. l Option 2 - Generic Treatment - Using a gen-l eric treatment to show a reasonable likeli-hood that a nuclear plant will be built on the site at some not well defined time in the future.
- a. Findings to be Made from ESR - In the absence of specific design information, a full review as required for the CP will not be feasible. Without having specific cost information or having a specific
year identified for the plant to come on line, a generic approach would be em-ployed. It would be shown that there is a justified reasonable likelihood of a nuclear facility of a given MWe being needed and cost justified relative to alternative types of generating capacity at some, not necessarily well specified time in the future. A reasonable outer limit of time of need, say 15 or 20 years, should be used. . . . A draft revision to NUREG-Ol80 (February 1978) is similar. It merely indicates that an applicant should describe, as to a proposed site:
- 2. Number and types (e.g., LWR, coal-fired) of nuclear and other generat-ing units planned or existing on the site and approximate dates of initial opera-tion for each unit. NUREG-0180 (Draft Rev. Feb. 1978) at III-2.
In short, there is no support in statute, regulation or regulatory guidance for the ASLE Decision's test of intent. Failing to find a basis for its test of intent in either the Atomic Energy Act or the NRC's implementing regula-tions, the ASL3 apparently sought to find a basis in some of the correspondence from the Staff to PE and other parties in i 1977 and 1978. This correspondence has been outlined at length in the Statement of the Case, see pp. 15-21 supra. It needs only to be pointed out here that:
- 1. The ASLB decision makes only one supported refer-ence to a Staff suggestion that it would propose to terminate
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the Fulton proceeding in the absence of " firm plans for early use of the Fulton site", ASLB Decision at 3. :That reference, from Mr. Denise's January 30, 1978 letter to Mr. Everett, was framed in the context of conventional amendment to the pending conventional CP application, not of its conversion to an ESR application.
- 2. The ASLB asserts, ASLB Decision at 3, that the Staff construed PE's March 8, 1978 letter to mean that PE had
" firm plans for early use of the Fulton Site." Both PE's March 8 letter, see p. 15 supra and the Staff's August 11, 1978 let-ter to Congressman Walker, see p. 20 supra, which the ASLB cites, speak for themselves; and examination of the Staff's August 11, 1978 letter shows clearly that the ASLB fundamen-tally misread it. The ASLB took the Staff's position regarding
. ' Fulton as a conventional CP application in the winter of 1977-1978, and misapplied it to the ESR amendment situation existing in the sammer of 1978. The ASLB simply ignored the fact that the August 11 letter evincec the Staff's satisfaction with the representations in PE's March 8 letter. In short, even the Staff's correspondence provides no support for the ASLE's theory. In a broader sense as well, the ASLB's theory of intent is fundamentall y et odds with the policy of the ESR regulations in at Itast two respects. First, if given any real substance, i
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the "early use" criterion espoused by the ASLB would vitiate , the ESR regulations' purpose of providing long-term stability to the licensing process, which it promotes by permitting exam-ination now of issues relating to power plants not scheduled for completion for as long as 15 to 20 years hence. ) Second, the " firm plans" aspect of its te.st borcers on ! suggesting that the filing of an application is an irrevocable commitment by an applicant, to be abandoned only upon pain of j prejudicial dismissal. The ASLB hsserts that it would have accepted dismissal without prejudice in 197S, ASLB Decision at 3, and concedes that an applicant who filed an ESR with " full intention of building a nuclear facility on the site may prop-erly reach a different decision thereafter in light of new information", A3LB Decision at 6. Yet the ASLB argues that PE somehow had no such right to reevaluate its original determina-tion because its ESR application was not filed, in the ASLB's view, with sufficiently fervent intent to construct a nuclear plant and was, therefore, essentially invalid ab initio. Further, to reach that conclusion, the ASLB entirely disregards an extended course of conduct consistent with a serious intent to license the Fulton site for a nuclear plant, finding one brief passage from an informal set of meeting minutes -- min-utes not even written by PE -- to be more persuasive to it. See Section III infra. A test of revocability of intent which
is subject to such capricious after-the-fact application is neither consistent with any authority cited by the ASLB, nor equitable. The ASLB's manner of application of its test is highly problematic in connection with ESRs, where an applicant is per-mitted five years from comoletion of the ESR adjudication to complete the filing of the balance of its CP application, 10 CFR S 2.606(b)(2). A span of 15 to 20 years between the filing of an ESR application and entry of a plant into operation is thus entirely plausible. If, during this long period, an ap-plicant re-evaluates its application and decides to withdraw it, but can be second-guessed on the kind of subjective basis used by the ASLB here, a severe in terrorem deterrent to use of the ESR process will have been created, since no fiscally ac-countable entity can responsibly commit over a billion dollars irrevocably, now, to a project which will not bring a return for nearly two decades.g/ g/ The ASLB's test runs a significant risk of demanding of any would-be applicant such a singleminded intent to use a site that it would totally discourage, in the real world, thoughtful re-examination of proposals by applicants. As a reflection of agency policy, such a test cuald produce results seriously in conflict with the requirement of 5 102(2)(c)(iii) of the National Environmental Policy Act of 1969, 42. U.S.C. $ 4332(2)(c)(iii), for examination of feasible alternatives to any proposal requiring major federal actions. !
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~46 Finally, application of such a quicksilver test in this instance is particularly indefensible. The test was created by the ASLB without suggestion from or notice to the parties; the ASLB relies on no correspondence or other evidence of PE's intent dating since July 1979; yet in August 1979 it upheld the ESR application against a motion to compel termination of the
' Fulton docket. Under the ASLB's present analysis the ESR ap-plication was void ab initio. The ASLB Decision here simply cannot be reconciled with its decision in August 1979. I B. The ASLB's Decision Unconstitutionally Deprived PE of Due Process of Law (Exceptions 7, 10, 34) As is discussed above, the ASLB Decision to dismiss PE's Fultor application with prejudice was based on a ground which was neither articulated in the NRC's regulations nor au-thorized by the Commission's enabling statute, the Atomic Energy Act. Thus, the Board's action was basically lawless. The Fifth Amendment of the U.S. Constitution guarantees that a person shall not be deprived of property "without due process of law". Courts in interpreting this phrase have often focused on the word " law". See Oestereich v. Selective Service System Local Bd. No. 11, 393 U.S. 233 (1968); Estep v. U.S., t ' 327 U.S. 114 (1946). Courts have held that laws must provide predictable standards and criteria against which a party's con-duct can be judged; otherwise, free-wheeling decisionmakers
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would not be prevented from meting out their own brand of justice in a vindictive manner. See Oestereich v. Selective , Service System Local Bd. No. 11, 393 U.S. 233, 237 (1968). When, as here, a decisionmaker unexpectedly departs from the standards and criteria which constitute the " law" that deci-sionmaker denies the aggrieved party due process of law, and the decision must be reversed as unconstitutional. 5 U.S.C. $$ 706(2)(B) and (C); see also Oestereich v. Selective Service System Local Bd. No. 11, 393 U.S. 233 (1968). The ASLB Decision must be reversed. III. THE ASLB'S FINDING THAT PE LACKED THE REQUISITE INTENT TO CONSTRUCT A NUCLEAR GENERATING FACILITY IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD Even if it were to be found that the ASLB could prop-erly base its decision on an intent standard, the ASLB decision still cannot be upheld since its conclusions about PE's intent are not supported by substantial evidence in the whole record. The ultimate administrative decision on a centstruction permit application must be supported by substantial evidence on the whole record.9/ 2 CFR $ 2.760(c); see also 42 U.S.C. 9/ This proceeding comes before this Appeal Board in a some-what unusual posture. No formal evidentiary hearing, 10 CFR S 50.58(b), was ever held on the Fulton construction permit application. Thus, the adjudicatory procedures of the APA, 5 U.S.C. $5 554, 556 and 557, were never followed during this proceeding. Yet, an anomalous situation now exists since the Board's ultimate disposition of the application, dismissal with footnote continued
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5 2239; 5 U.S.C. $ 706(2)(E). The substantial evidence stan-dard requires a reviewing body to examine the entire record to evaluate not only the evidence which supports the administra-tive decision, but also that evidence which detracts from its weight. Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). While this Appeal Board has previously held that it is not l strictly bound by the substantial evidence test when evaluating ASLB decisions, see Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 402 (1976), the Commission's ultimate decision on the Fulton application must nevertheless be supported by substantial evidence. Therefore, this Appeal Board must consider the evidence in the record as a whole and reverse the ASLB's findings regarding PE's intent to construct a nuclear generating facility.
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l l footnote continued ! t prejudice, requires a reviewing body to employ the judicial review standards related to adjudicatory proceedings. A dismissal with prejudice operates as a decision on the merits. LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir. 1976); Smoot v. Fox, 340 F.2d 301 (6th Cir. 1964). As such, review of the dismissal must be conducted using the stan-dards applicable to a normal decision on a CP application. Since formal hearings are mandated for a CP application, 10 CFR 6 50.58(b), the substantial evidence review standard must be used, 5 U.S.C. 5 706(2)(E).
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A. The ASLB Failed to Consider the Record as a Whole, and Erroneously Relied Instead on a Single Piece of Inadmissible Evidence (Exception 12) The ASLB based its decision to dismiss with prejudice PE's Fulton CP application and ESR request on its conclusion that PE had had no firm plan since 1975 to construct a nuclear facility at Fulton. ASLB Decision at 7. The ASLB reached this etuclusion by placing unwarranted weight on a single paragraph contained in a summary of an informal, informational meeting held on May 11, 1978. Id. The Board's reliance on this single source is misplaced for two reasons: first, the summary would have been inadmissible had a formal adjudicatory proceeding been held on the CP application, particularly given the abun-dance of other, more probative indications of intent available; and second, the ASLB had already implicitly considered this summary in regard to PE's request for an Early Site Review and had found the requisite intent.
- As was discussed above, see note 9 supra, review of the ASLB's decision to dismiss with prejudice must proceed from the assumption that all procedural requirements attendant to an adjudicatory proceeding had been met. This includes an examin-ation of the admissibility of proffered evidentiary items; for as this Board has previously recognized, "nothing can be treated as evidence which is not introduced as such." Public Service Company of Indiana, Inc. (Marble Hill Nuclear
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Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 191 (1978), quoting from United States v. Abilene & S. Ry., 265 U.S. 274, 288 (1924). The admissibility of evidence in a con-struction permit proceeding is governed by two sources: the APA, see Atomic Energy Act 5 181, 42 U.S.C. 5 2231, and 5 2.743(c) of the NRC's Rules of Practice, 10 CFR 5 2.743(c). The APA requires that "the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence." 5 U.S.C. 5 556(d). Section 2.743(c) basically parrots the APA, providing that "[o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted." 10 CFR 5 2.743(c) (emphasis supplied). The meeting summary in question presents a classic ex-ample of hearsay evidence. The ASLB seeks to rely solely on a summary prepared by the NRC staff in order to discern PE's intentions to construct a nuclear facility at Fulton. While not all hearsay evidence must necessarily be excluded from an administrative proceeding, see, e.g., Duke Power Company (Catawba Nuclear Stations, Units 1 and 2), ALAB-355, 4 NRC 397, 412 (1978), the ASLB is still bound by the admissibility cri-teria of the Commission's regulations, 10 CFR 5 2.743(c), and the strictures of the APA, 5 U.S.C. 5 556(d). Since the Commission's regulations expressly require evidence to be reli-able, the need to admit hearsay evidence must in part be
governed by the availability of other, better evidence. . Willapoint Oysters v. Ewing, 174 F.2d 676, 691 (9th Cir. 1949), cert. denied 338 U.S. 860 (1949).10/ In this case more reliable indications of PE's intent to construct a nuclear facility at Fulton were available. See pp. 8-22 supra. The meeting summary relied on by the ASLB fails to sat-isfy many of the factors identified by courts as indicia of I reliability. See Richardson v. Perales, 402 U.S. 389, 402-03 (1971); Calhoun v. Bailar, 626 F.2d 145, 149 (9th Cir. 1980). The summary remains unsworn. It also includes the subec..scious biases inherent in a listener's attempt to summarily report the statements of another. On the other hand, the record of this construction permit application is replete with evidence of PE's continuing intent to construct a nuclear facility at Fulton, see pp. 8-22 supra. Much of this evidence is in the form of direct written submissions from PE's management, see pp. 8, 15-17 supra. Furthermore, members of PE's management were, and still are, available to testify concerning PE's ! 10/ The cases permitting hearsay evidence to be admitted in an administrative proceeding generally involve evidence having a relatively high degree of dependability. For example, the Supreme Court in Richardson v. Perales, 402 U.S. 389 (1971), l allowed a consultant's report to be admitted only after noting ' that procedural protections, including subpoena power and cross-examination, were available to ensure the reliability of the report. l l l 1 l ,
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intent to construct a nuclear facility at Fulton. Therefore, in accordance with the principles of evidence discussed above, the meeting summary would have been inadmissible had the ASLB followed the adjudicatory procedures required for a decision on the merits.11/ Since the only factual support for the entire ASLB Decision is found only in this one inadmissible document, the decision must be reversed. In addition, as is noted above, the ASLB had before it the meeting summary as well as the myriad of other sources evi-dencing PE's intent to use the Fulton site when it considered the " Motion to Quash" in August, 1979. The ASLB's denial of that motion must represent a finding by it at that time that the requisite intent was present to permit PE to continue its ESR request. The ASLB is now estopped, absent some new evi-dence not available in August, 1979 -- and none is recited by the ASLB Decision -- from sua sponte reevaluating the same fac-tual material and reaching an opposite conclusion based on that , material. i l 11/ The Board's assertion that "[s)ince Applicant did not re- ' quest alteration of the minutes, they were taken as accurate", ASLB Decision at 7, is simply irrelevant since PE was under no duty to object to the summary. Section 2.752(c) of NRC's Rules of Practice requires parties to file objections only to orders resulting from a prehearing conference. It does not require , parties to comment on every piece of correspondence from the NRC staff, of which there will typically be hundreds, if not thousands, in the course of a licensing review. Since the sum-mary in question was never part of an order no response from PE was mandated.
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B. PE Had Adequate Intent to Construct a Nuclear Facility When It Filed Its ESR Amendment (Excections 2, 13, 14, 15, 21, 30, 32) As has been shown above, the standard of intent used by the ASLB to perform its alchemic analysis of PE's actions was incorrect. Under the more reasonable standard traditionally applied -- one which accepts at face value an Applicant's own representations in its application and elsewhere -- PE's actions beginning in early 1978 fully demonstrate its intent to construct a nuclear facility at Fulton. Beginning with Mr. Everett's declaration on March 8 that nuclear generation was PE's economically preferable choice and that Fulton was its preferred site, and continuing through its meetings with the Staff and its expenditure of time, money and effort to prepare its ESR amendment, PE's actions are all indicative of a good-faith intent, based on information then available to it, to seek a license to construct a nuclear plant. Absent evi-dence of essentially fraudulent or sham intent on PE's part in undertaking these actions -- evidence not alluded to by tne ASLB, perhaps because none such exists -- PE's actions, taken at face value, satisfy any reasonable definition of intent associated with eligibility for Early Lite Review. Indeed, even if the " firm plans for early use" test intermittet.;1y espoused by the ASLB were correct in determining eligibility for the ESR process -- which it is not -- the ASLB
decision never cor 1 to grips with two troubling facts. The first is that the test was initially stated by the Staff itself, in Mr. Denise's January 30, 1978 letter to PE; the sec-ond is that the Staff, after extensive communications with PE as to its plans, determined not to seek the termination of the , proceeding suggested by its original letter. Either the Staff revised its test in light of PE's decision to seek an ESR rather than a conventional CP review, or PE met the Staff's test to the Staff's satisfaction. The ASLB decision utterly fails to deal with these facts. Second, the ASLB cites one snippet in the unofficial Staff notes of May 11, 1978 meeting -- "PEC stated that it was not clear that a nuclear unit would be put at the Fulton site, that the type of plant would be decided about 1983", ASLB Decision at 7 -- for the proposition that by 1978 PE had reached "no decision" as to whether to use Fulton for a nuclear facility or as to what type of facility at all to site there. Id. Even taking the quoted passage from the informal notes as accurate in itself, it does not follow as a matter of logic that PE had reached "no decision" on the matter. Indeed, the context shows just the opposite; that although PE may never have sworn an irrevocable commitment to build a nuclear facil-ity on the site, PE's commitment was firm enough that PE was proposing to put itself to the effort and cost of a licensing
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proceeding to resolve a variety of site-related issues safely in advance of some future date when growth in electric demand could force it to seek to obtain, willy-nilly, last-minute con-struction authorization at a breakneck pace. Mr. Everett's letter put it clearly, based on facts available to PE in March 1978: the additional generation after [comple-tion of PE's nuclear units at] Limerick would be base load generation, using either coal or uranium as fuel. The economic choice is a uranium fuel plant and the prime candidate site for such nuclear generation on the Philadelphia Electric Company system is the Fulton site. For the ASLB to have concluded, as it did, ASLB Decision at 8, that there was no evidence since 1975 of a deci-sion by PE to use the Fulton site, required it either to ignore plain words and an extended course of conduct by PE or to de-fine the term " decision" in such a restrictive fashion as to make it an unattainable standard. In either event, the ASLB was wrong. Its Decision should be reversed, both as to its proposed standard of intent and as to its factual finding that PE failed to show an adequate degree of intent to use the Fulton site. i I
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_ l 1 IV. THE ASLB DECISION DENIED PE THE PROCEDURAL DUE PROCESS RIGHTS GUARANTEED BY THE FIFTH AMENDMENT AND THE ATOMIC ENERGY ACT (Exceptions 8, 20, 33) In addition to requiring a governmental body to act in accord with established criteria which constitute the " law," see p. 46 supra, the Due Process Clause of the Fifth Amendment also affords parties, potentially deprived of property, the right to be heard. At a minimum, this right provides the affected property owner with notice of, and an opportunity to ' comment on, the factual and legal bases of the decision which I will deprive him of his property. See Bi-Metallic Investment Co. v. Colorado, 239 U.S. 441 (1915); Londoner v. Denver, 210 U.S. 373 (1908). The ASLB's decision to dismiss PE's CP appil-cation with prejudice deprived PE of these rights. Both the courts and the administrative bodies within the NRC have held that while an administrative body has the power to explore and resolve issues not raised before it,12/ 1 ' when the body rests its decisions on such an unknown legal or factual ground then the parties to the decision making must be notified of that ground and provided an opportunity to comment 12/ This power is not without bounds, however. The Commission recognized in Consolidated Edison Company of New York (Indian Point Nuclear Generating Unit 3), CLI-74-28, 8 AEC 7 (1974), that "(a]s a general rule, Boards are neither required nor ex-pected to look for new issues. The power. to do so should be exercised sparingly and utilized only in extraordinary circum-stances." Id. at 9. l
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on it. Morgan v. U.S., 304 U.S. 1, 18-19 (1937); Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 56 (1978); Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 354 (1975); Consolidated Edison Company of New York (Indian Point Nuclear Generating Unit 3), CLI-74-28, 8 AEC 7, 9 (1974). In this case no such notice was given. The ASLB based its decision on a legal theory -- the need for an appli-cant to have a " firm plan" to construct a nuclear plant prior to requesting an Early Site Review -- and a factual basis -- an unofficial summary of an informal meeting -- never foreshadowed by it, or any other party, in the pleadings surrounding PE's request for withdrawal. Thus, PE was deprived of its constitu-tional right to notice and comment. Furthermore, the provisions of the Atomic Energy Act specify procedural protections in excess of a mere opportunity to comment. Section 189 of the Act mandates that "the Commission shall grant a hearing (on a CP application] upon the l request of any person whose interest may be affected by the t ' proceeding." Atomic Energy Act 5 189, 42 U.S.C. $ 2239. The Commission's own regulations take these protections a step fur-ther by requiring, unless the parties agree otherwise, a hear-l ing to be held on factual issues on an application for a con-l struction permit. 10 CFR 9 2.761(a); see Puerto Rico Electric l l
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Power Authority (North Coast Nuclear Plant, Unit 1), LBP-80-15, 11 NRC 756, 767 (1980). In addition, the regulations, while permitting the presiding officer to dispose of certain issues on the pleadings, expressly forbid the presiding officer from using his summary disposition authority "to determine the ulti-mate issue as to whether the permit shall be issued." 10 CFR $ 2.749(d); see Detroit Edison Comoany (Greenwood Energy Center, Units 2 and 3), LBP-75-56, 2 NRC 565, 568-69 (1975). Yet despite these clear statutory commands and interpretive rulings, the ASLB acted in a manner which disposed of the ulti-mate issue, and all factual issues underlying it, without af-fording PE a hearing on disputed factual issues.13/ Thus, the ASLB denied PE its procedural due process rights guaranteed by the Constitution and the Atcmic Energy Act. 13/ The one situation previously recognized by the ASLB which permits it to dispose of an application without a hearing, namely withdrawal by the Applicant, see Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), 11 NRC 765, is not applicable in this case. PE requested only a with-drawal without prejudice. PE was not then, nor is now, willing to withdraw its CP application if such a withdrawal is condi-tiened on the exclusion of the Fulton site from all future con-sideration as a nuclear site. i i
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V. THE ASLB DECISION CONSTITUTES AN UNCONSTITUTIONAL TAKING OF PRIVATE PROPERTY WITHOUT JUST COMPENSATION (Exceptions 7, 34) The Fifth Amendment to the U.S. Constitution provides: "nor shall private property be taken for public use, without just compensation." In this case, the ASLB Decision could de-prive PE from using the unique characteristics of the Fulton site for the potential construction of a nuclear power plant, while the countervailing "public uses" are limited to minimal benefits accruing to a small number of surrounding landowners. Given these factual circumstances, it is clear that an uncon-stitutional taking has occurred. The question of what constitutes a taking under the Fifth Amendment has been grappled with by courts for nearly a century. As the Supreme Court has recently stated, "this Court, quite simply, has been unable to develop any ' set formula' for determining when ' justice and fairness' require that economic injuries caused by public action be compensated by the Government, rather than remain disproportionately con-centrated on a few persons." Penn Central Transportation Co.
- v. City of New York, 438 U.S. 104, 124 (1978). However, from the thicket of "taking" cases several basic analytic principles have appeared. One strand of analysis has focused on the extent of the diminution of value incurred by the private prop-erty owner. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393
(1922); Hotel Coamo Springs, Inc. v. Colon, 426 F.Supp. 664 (D. Puerto Rico 1976). When the diminution reaches a certain mag-nitude, then "there must be an exercise of eminent domain and compensation to sustain the act." Pennsylvania Coal Co. v. Mahon, 260 U.S. at 413; see also San Diego Gas & Electric i Company v. City of San Diego, U.S. , No. 79-678 (dissent-ing opinion at 13) (slip op.) (March 24, 1981); Penn Central Transportation Co. v. City of New York, 438 U.S. at 136. Another strand of analysis has focused on the importance of the public interests being furthered by the governmental action. See Penn Central Transportation Co. v. City of New York, 438 U.S. at 124. More specifically, in this line of cases ccurts have sustained against "taking" attacks such necessary govern-mental activities as the exercise of the taxing power and the promulgation of regulations, including zoning ordinances, legitimately designed to promote the public health, safety or general welfare. Id. at 125; Euclid v. Ambler Realty Co., 272 l l U.S. 365 (1926). Courts have, however, been willing to find I takings when the governmental action has not effectuated a sub-i stantial public purpose or when the benefits have accrued only to a very small sector of the public. Pennsylvania Coal Co. v. [. hon, 260 U.S. at 413-14; Nectow v. City of Cambrid Se, 277 l U.S. 183, 187-88 (1928); see also Penn Central Transportation l Co. v. City of New York, 438 U.S. at 126-27; Goldblatt v. l Hempstead, 369 U.S. 590, 594 (1962). l
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Application of these analytic approaches to a given factual setting "necessarily requires a weighing of private and public interests", as the Supreme Court recently recognized in Agins v. City of Tiburon, 447 U.S. 225, 261 (1980) -- a pro-4 cess naturally sensitive to the types of interests being ! l weighed. Courts have exhibited a willingness to vary the de-gree of diminution of private property necessary to constitute a taking, depending upon the character and necessity of the governmental action. See Penn Central Transportation Co. v. ' City of New York, 438 U.S. at 126-27. For example, courts have
shown great deference to zoning ordinances because they are perceived to be proper exercises of the police power and as such are viewed as advancing legitimate governmental goals. See Agins v. City of Tiburon, 447 U.S. at 261; Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). When, however, as in this case, the governmental ac ion is, at best, marginally proper, or does not promote the public's interest, then the degree of diminution necessary to ! constitute a taking is much lower. See Nectow v. City of Cambridge, 277 U.S. at 187-88; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393; Chatham v. Jackson, 613 F.2d 73, 78 (5th Cir. 1980); sea also San Diego Gas & Electric Co. v. City of San l Diego, U.S. , No. 79-678 (dissenting opinion at 13-14) ) (slip op.) (March 24, 1981).14/ 14/ The San Diego case is factually very similar to this case. In that case the San Diego Gas & Electric Co. purchased land footnote continued _ _ _ _ _ .- .. .. . . _
In this case, the ASLB has acted arbitrarily and in excess of its statutory authority in promoting the narrow in-terests of a handful of property owners rather than the inter-ests of the public as a whole. These actions have caused PE's " distinct investment-backed expectations" in its Fulton prop-erty to be substantially frustrated.15/ See Penn Central footnote continued for a possible nuclear site. Following the purchase, the city of San Diego rezoned part of the property and also established an open-space plan which virtually ensured that San Diego Gas & Electric could never construct a nuclear facility on the site. Id. at 1-3. The issue of whether an owner could recover dam-ages under the Just Compensation Clause of the Fifth Amendment for an " inverse condemnation" was brought before the Supreme Court. The Court, in a 5-4 decision, dismissed the case for lack of jurisdiction since the appeal was not from a final judgment. (Justice Rehnquist, while concurring with the majority, stated nevertheless that "I would have little difficulty in agreeing with much of what is said in the dissenting opinion of Justice Brennan," Rehnquist Concurrence at 1, if the appeal had been from a final judgment.) The four dissenting Justices were willing to confront the merits of the case and find that arbi-trary or excessive exercises of governmental authority under the guise of zoning ordinances can constitute takings. Dissenting Opinion at 12 (slip op.). 15/ Even beyond its economic investment in the Fulton site, PE has engaged in enough site-related studies to have concluded that the site is viable for a nuclear power station. These analyses would retain their analytical value even if the regu-latory process were required to begin again. The physical requiremnts for a nuclear site established by the Commission are far more restrictive than those for any other type of power plant; viable nuclear sites are, relatively speaking, scarce, and the arbitrary removal of an attractive site from considera-tion for future use, for reasons not relating to infirmities in the site itself, represents a substantial loss, beyond ordinary real estate land values, to the utility which has the obliga-footnote continued
Transportation Co. v. City of New York, 438 U.S. at 135-36. PE has received no compensation for these losses. On the other hand, only a handful of people will benefit from the ASLB's action 16/ and the magnitude of the present benefit to those persons is de minimis.17/ Therefore, a weighing of all these i factors leads to the inexorable conclusion that an unconstitu-tional taking without just compensation must be found and the Board's decision must be reversed. footnote continued ! tion not only to provide power to its customers but also to locate sites on which to generate it. 16/ The land in question involves five tracts, one within the exclusion area (2 acrec) and four others partly within it and partly outside it (111 acres). 17/ Intervenors' allegations about reductions in their prop-erty values ring hollow since uncertainties will remain in any event concerning the ultimate use of adjoining properties in-cluding but not limited to the Fulton site. Furthermore, if the portions of their lands lying within the exclusion areas are ever taken for the Fulton Station, the owners will receive full compensation, either from a sale of their land to PE or from a court-determined award of damages pursuant to PE's exer-cise of eminent domain powers.
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CONCLUSION PE _ submits the following conclusions to the Appeal Board:
- 1. The ASLB erred as a matter of law in holding that the five-year period of suspension which it found to have oc-curred in the Fulton application required it to attach a preju-dicial condition to PE's request to withdraw its application voluntarily and terminate the proceedings before the ASLB. It similarly erred as a matter of law in constructing the standard of intent it used to determine that PE's request for an Early Site Review was fundamentally improper under the ESR regula-tions. On either or both of these two grounds the ASLB's deci-sion should be reversed and an order entered by this Appeal Board dismissing the Fulton construction permit proceeding without prejudice.
- 2. The ASLB erred as a matter of fact in concluding that a five-year period of suspension in the Fulton licensing proceeding had occurred, and in concluding that PE had not met the standard of intent with respect to use of the Fulton site necessary to permit PE to utilize the ESR process. The ASLB's factual findings are not merely unsupported by substantial evi-dence in the record; they are not supported by any reliable evidence whatever. Even if this Appeal Board were to sustain
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the ASLB Decision with respect to its legal tests, the factv 1 record of this proceeding overwhelmingly refutes the ASLB's application of those tests. This Appeal Board should exercise its power to reverse the ASLB's decision for lack of a factual basis, and should enter an order dismissing the Fulton con-struction permit proceeding without prejudice.
- 3. The ASLB Decision, if it limits PE in its future ability to utilize the Fulton site for a nuclear power station, without a determination on the merits of the site, amounts to a
- taking of private property without just compensation, in viola-tion of the Fifth Amendment to the U.S. Constitution. It should be reversed and the application dismissed without preju-dice.
- 4. The ASLB denied PE due process of law as guaranteed by the Fifth Amendment to the U.S. Constitution and by the Atomic Energy Act, by deciding ultimate and other factual issues in the proceeding before it without either notice of its theories (which had not been proposed by any of the parties before it) or opportunity for hearing to PE. Unless this Appeal Board fully affirms the ASLB Decision in all respects as to issues 1, 2 and 3 above, it should merely reverse the ASLB and dismiss this proceeding without prejudice. If it fully affirms the ASLB in all respects as to issues 1, 2 and 3, then it must grant PE a hearing to resolve all disputed issues of
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.-. - _-. material fact pertinent to the ASLB Decision. In such an event, PE requests that the Appeal Board either conduct the proceeding itself in the interest of judicial economy, or that it remand the case for hearings before an ASLB panel none of whose members has heretofore dealt with this case. For the reasons stated above, the ASLB Decision should be reversed and the construction permit proceeding herein ter-minated without prejudice. Respectfully submitted,
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Donald P. Irwin L Lee B. Zeugin Attorneys for Philadelphia Electric Company Hunton & Williams 707 East Main Street P.O. Box 1535 707 East Main Street Richrend, Virginia 23212 (804) 788-8200 Of Counsel: Eugene J. Bradley, Esquire 2301 Market Street Philadelphia, Pennsylvania 19101 DATED: April 27, 1981 _ _ . _ . . _ _ . _ _ -
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DOCUMENTS CITED IN BRIEF l k l r l
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APPENDIX DOCUMENTS CITED IN BRIEF (Citations are to " App.# ")
- 1. Letter, Donald P. Irwin to Hugh K. Clark, September -
17, 1975.
- 2. Letter, Hugh K. Clark to Donald P. Irwin, November 26, 1975.
- 3. Letter, Donald P. Irwin to Hugh K. Clark, February 19, 1976.
- 4. Letter, Thomas Spackman, II to Marcus Rowden, July 21, 1977.
- 5. Letter, Thomas Spackman, II to Robert S. Walker, October 11, 1977.
- 6. Letter, Edson G. Case to Thomas Spackman, II, August 19, 1977.
- 7. Letter, Joseph M. Hendrie to Robert S. Walker, November 25, 1977.
- 8. Letter, Richard P. Denise to J. Lee Everett, January 30, 1978, with attachments.
- 9. Letter, Edward G. Bauer to Roger S. Boyd, February 10, 1978.
- 10. Letter, Donald P. Irwin to Hugh K. Clark, February 28, 1978.
I 11. Letter, J. Lee Everett to Richard P. Denise, March 8, 1978. i
- 12. Letter, Voss A. Moore to J. Lee Everett, May 31, 1978, with attachment, " Summary of Meeting Held on May 11, 1978 to Discuss Plans for an Early Site Review of tha Fulton Generating Station Site" dated May 24, 1978.
- 13. Letter, Robert S. Walker to Joseph M. Hendrie, July 5, 1978.
- 14. Letter, William P. Dircks to Robert S. Walker, August 11, 1978.
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- 15. Letter, Voss A. Moore to J. Lee Everett, August 25, 1978.
- 16. ASLB, Memorandum and Order, August 8, 1979.
- 17. Save Solanco Environment Conservation Fund's Petition to Terminate Docket and Quash Pre-application and Early Review of Site Suitability (served May 14, 1979).
- 18. Applicant's Opposition to " Petition to Terminate Docket...," June 5, 1979.
- 19. NRC Staff's Response to [SSECF) Petition to Terminate Docket..., June 4, 1979.
- 20. Letter, Jamer R. Miller to Philadelphia Electric Company, Ju".e 25, 1980, with enclosure.
- 21. Comments on Proposed Amendment to 10 C.F.R. Part 170, December 8, 1980.
- 22. Memorandum, Daniel J. Donoghue to NRC Commissioners, August 4, 1980 (SECY-80-364), " Fees for Withdrawn Applications...", with attachments.
- 23. Motion to Withdraw Application and t o Terminate Proceedings (December 5, 1980) accompanied by Letter, Donald P. Irwin to Richard P. Denise, December 5, 1980.
- 24. NRC Staff's Response to Request for Withdrawal of Application, December 24, 1980.
- 25. Response of Intervenors York Committee...and Central Pennsylvania Committee...to Applicant's Request of December 5, 1980..., December 17, 1980.
- 26. Applicant's Reply to Intervenors' Response to Applicant's Motion to Withdraw..., January 23, 1981.
- 27. ASLB, Decision and Order (Dismissing Proceeding with Prejudice), February 27, 1981.
- 28. 10 CFR Parts 2, 50, Early Site Reviews and Limited Work Authorizations, 42 Fed. Reg. 22882 (May 5, 1977).
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IIUNTON WILLIAMS GAY & GInsoN 700 East MAIN STatti P.O. Box 1535 HICHMOND VIRGINIA 23212 TELEpwoNE (804) 649-3ssi CAeLE HuntwAno WASHINGTON, D. C. Orrect
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37,0 PENNSYLVANI A AVE N W.20004 SulTE toso September 17, 1975 = ~o~< = """a=
292-109-4 l Hugh K. Clark, Esquire Mr. Gustave A. Linenberger ' Chairman Atomic Safety and Licensing Board P. O. Box 127A U.S. Nuclear Regulatory Commission Kennedyville, Maryland' 21645 Washington, D.C. 20555 Dr. Donald P. de Sylva Associate Professor of Marine Science Rosentiel School of Marine and Atmospheric Science University of Miami Miami, Florida 33149 Fulton Generating Station Dockets 50-463. 50-464 Gentlemen The Applicant, Philadelphia Electric Company, has just been notified by General Atomic Company (GA), the nuclear steam system supplier for the Fulton units, that GA is unwilling to continue to perform work on the Fulton station under the present contractual arrangements, and that it is suspending work on the project. The Applicant's position is that it has a binding contract with GA for the nuclear steam supply systems. In view of GA's actions, the Applicant has suspended its work on the Fulton station i pending a review of this matter. When the Applicant has completed an assessment of l the effect of this development on the Fulton licensing proceeding, it will promptly report the results of this l
H t*NTox. WILLI AMs. GAY & gin sox assessment to the Board and the parties. Very truly yours,
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Donald P. Irwin , ' i Attorney for Philadelphia Electric Company Of Counsel: Eugene J. Bradley, Esq. Philadelphia Electric Company 2301 Market Street Philadelphia, Pennsylvania 19101 George C. Freeman, Jr., Esq. Hunton, Williams, Gay & Gibson 700 East Main Street P. O. Box 1535 Richmond, Virginia 23212 cc: Alternate Board members Counsel for all parties Docketing and Service Section
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, UNITED STATES NUCLEAR REGULATORY COMMISSION W ASHINGTON, D. C. 20555 November 26, 1975 Donald P. Irwin, Esq. Hunton, Williams, Gay and Gibson 700 East Main Street P. O. Box 1535 Richmond, VA 23212 Re' Fulton Generating Station Dockets 50-463, 50-464
Dear Mr. Irwin:
Not having received any communication from you since your letter of September 17, 1975, wherein you advised the Board that Applicant had suspended work on the Fulton Station, the Board would like to have a status report. If your report is to the effect that no decision has been reached by the Applicant, then beginning with January 1976, the Board will expect a status report by the tenth day of each month, until the matter is resolved. Very truly yours, f ! f Hugh K. Clark, Chairman ! Atomic Safety and Licensing Board l
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) . l HUNTON. WILLIAMS, GAY & GInsoN l 700 EAST Maim StartT P.O. Box 1535 RICBMOND. TINGINIA 23212 TELEpNoNE (804) 649 3661 CASLE HUNTWAND WASHINGTON. D. C. orries 1730 PENNSYLVANI A AVE. N.W. acoos February 19, 1976 C'1,,,,,,,.,,,,
m No. 292-109-2 Hugh K. Clark, Esquire Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Fulton Generating Station (Docket Nos. 50-463, 50-464)
Dear Mr. Clark:
Philadelphia Electric Company and General Atomic Company have reached an agreement terminating their relationship regarding the Fulton Generating Station. As a result, the station will not be built as an HTGR. The attached press release, dated February 17, 1976, describes the agreement in more detail. In the coming weeks, Philadelphia Electric will be evaluating various options available to it for providing baseload electric generating capacity in the mid- to late 1980s, including the construction of light-water-cooled ) l reactor units at the Fulton site. Upon completion of this l process, Philadelphia Electric will seek either to amend l the existing Fulton application accordingly or to take l other appropriate action. During this period, we shall i l
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l HUNTON. WILLIAMS, GAY & GInsow
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l provide the periodic status reports requested by the Board's letter of November 26. Very truly yours Donald P. Irwin Counsel to Philadelphia Electric Company
- Attachment l
! cc w/ attachment: All Board members and alternates Counsel for all parties Docketing and Service Section ! \
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PHILADELPHIA ELECTRIC COMPANY .
~ , " . frcan die PCBL1C IXTORMd TfDX DEP.IRTMF37 (:US) &H4000 ; , pn
( - 2301 MAREET STREET e PillLADELPHIA. FA.19:01 ( l l TOR RELE.tSE IMMEDIATE (February 17, 1976) , j ' 1 ,
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Contact:
W. R. Taylor, 841-4320 ) I .
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l - PHILADII.Pi!IA ELECTRIC, GEh'ERAI. AT(t(IC ANNOUNCE R'LTON FI YA. r SETTI.EMhi l Philadelphia Elecerte company ar. noun ed today that General Ato:ic Cucpsny has agreed to pay 564 million to rei=bu so Philadelphia Electric for substan:.ially all its costs incurred in the 2,320,000-kilowatt Pulton 5,tation l HIGY. nuclear power plant, which has now been cancelled. In addition, General Ato=ic has agreed to provide :vo million pounds of urantum to Philadelphia Electric, to be delivered in 1982,1953 and 1984. This urani tm vill be delivered at General Acomic's acquisition cost from quantities Cencral Atomic now has under contract for delivery in those years. The termination agreement was announced by J. L. Everect, president of Philadelphia Electric, and W. W. Finley, Jr. , president of General Atomic. The i l Fulton piant was to have been located in Lancaster couney, 60 attes southwesc of l Phi!ade ', phie . Although construction had not begun, there had been considerable l l work. 5.y '=n:h ec panies in che areas of design, engineering, enviter.:.en=si i:pse- ' studies and saicey analysis.
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eid ene: PHIL ADEl.PIII A Et,EcrKIC, GENEiU2, ATOMIO General Atomic auspe:ded work on the twin reactor projece last September, citing soaring costa, lengthening construction schedules and businces uncertainetes
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in the nuclear powee industry. Temediately thereafter Philadelphia Electric aus-
- pended its work on the project. Philadelphia Electric is conciming to review alternative plans to provide electric generating c:.pacity in the mid to late 1980s.
Despite the cancellarton, Everect said he has continuing confidence in the future of the gaa-enoted reactor technolo6y developed by General Aco=ic.
'7eos our experience in operating the High Temperaturc Cas-cooled Reactor prototype General Atomic provided for our Peach Batta= plant some ten years ago, t
l va helieve that it offera not only a safe and reliable syste= but one possessing i I higher operaetng efficiency and environ:xutal and fuel cycle advantages." heretc said. f
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P00R OR8 NAL
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Pa. i. ; . 03 76, **~ V July 21, 1977 r ' ,/ FE. Marcus Rowden, Chainnan 2, ey"f.O ",rr' U. S. Nuclear Regulatory Co cission "
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Washington, D. C. s , r7 Sb3 JECT: Docket Nos. 50-463, 50-464
Dear FE. Roden,
In 1972, the Philadelphia Electric Company filed with your predecessor Ccrissica, the Atonde Energy Cct.cissica, an application for a percit to construct a 2200 cepa.2tt nuclear power plant in Fulton Township, Lancaster County, Pennsylvania, to be called the Fulton Generating Station. The plant site included essentially all of or 70-acre farm which my wife and I had just cocpleted plans to retire to. Philadelphia Electric indicated that they wished to purchase our land, stich under Pennsylva la la.: they could, if necessary, acquire by right of minent dorain. We refused to sell and thus far at least the utility has not chosen to exercisc its legal right to seize the land. The fact remains, howver, that we still have the cloud of conde=ation hanging over us. It is crf understanding that the plant as oriednally outlined in the Enviren.mtal - and Safety Analysis Reports and changes thereto cr.not nae be built for rle vary basic reason that the manufacturer of .the high temperature gas-cooled reactor spacified for the plant has gone out of business and no other supplier makes this particuir type of reactor. This development took place in the latter part of 1975, but for remas I am not anare of, Philadelphia Electric's construction permit applicaticn is still being kept open on the Nuclear Regulatcry Corrission Books. I am writing to ask that you fonnally vacate this project. We have suffered for five years naa under this threat, not kno.eing 16en the property in which we have invested so ruch of ou selves ray be taken from us. I feel re have a right to request that your Cocaission, which has our government's oversight respen-cibility for these plants, give us some relief by the assurance that its bcoks on tFis particular plant have been closed. How long do we have to live under the cloud of c .nde:mation? It seems to us that five years is quite long enough. I hope that we may hear from you favorably. I do not kn=e sto else we can loch to for ralief although you will note that I am sending a copy of this letter to :S. Everett, President of Philadelphia Electric, who of course has the authority to terinate tha project if he so chooses.
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- Thacas Spaclran II cc: 12. James L. Everett, President s Philadelphia Electric Co.
2301 Parket Street Philadelphia, Pa. 19101 Isarence Sager, Esquire i
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lionorable Robert S. llalker Representative, State of Pennsylvania House of Representatives Washington, D. C. 20515
Dear Congressman Walker:
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I wonder if I might ask your help in a matter that is of great concern to my wife and myself. The encioned correspondence wi11 give you some of-the back-ground. You will note that my original letter uas addressed to the Chairman of the Nuclear Regulatory Commission, but un fo r ti.aa t ely he had already left the agency and the reply came from a member of
, the staff.
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This is almost a classic case of a Gosfernment agency water-logged in its own sea of regulations. To an independent observer
\t would seem to be clear that if an applicant is unable to construct he plant he filed his application for (in the case at hand, for the very good reason that General Atomic, the only company making hTCR reactors, uent out of the business before it had made the first one),-
then the file on the project should logically be closed. I see no reason uhy a hearing should be necessary to establish this. It may be a combination of (a) IIRC interpreting their own ,
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rules in a customarily conservative fashion, and (b) a desire to cooperate to the fullent extent with the utility. As you probably know we have had son.e experience in dealing wit h NRC and its predecessor, the AEC, in connection with this proposed plant of Philadelphia Electric's and it was as though we were bat.tling both , the utility and the agency. They were 1ihe a team. Yet it is my i understanding that the government agency is nupposed to be i:..pa r t ial in its treatment of all the int crested parties. I!c feel we have some rights in this mat ter as it is our f ar.n and our property that have been and continue to be thecatened by
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this open end NRC docket. There is no purpose in holding this matt er open except as a special convenience to PE no that if they want to build another type of nuclear plant they can gra f t i. t onto the current application. Meanwhile we sit here under the gun uit.h no l ! i one looking out for our interests. i 1
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lionorabic Rohe rt S. k'alker Oct nber ll,1977 Par,c Two ,
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, 1 r. Cane's contention that the ilRC has nothi.ng to do with ! cminent domain is a bit of a red herring. Any action they take -- or in this matter, do not take -- that is favorabic to PE facilit ates that utility's moves to secure approval for its plant which would then lead directly- to the condemnation of our property. i You uill apprec.inte I cm sure that livin;; in a perpetual state of uncertainty as to whether we may momentarily be dispossed is , an unhappy sutuation to be in. We would sleep better at night i f. i the 1;FC could be persuaded to act responsibly and close out PE's already obsolete application. Anything you can do to expedite this
; vill be very much appreciated I can assure you.
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Sincerely,'.h,
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- Thomas Spackman 11-
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TSII/r,s Enclosures , copy to: lion . R. S. Walker i Fifth Floor l Lancaster Cou'ity Court llouse Lancaster, Penna. 17602
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- 9 July 21, 1977 Mr. Marcus Rowden, Chairman 7., offj #
U. S. Nuclear Regulatory Comission P /p Washington, D. C. s u m G
SUBJECT:
Docket Nos. 50-463, 50-464
Dear Mr. Rozien,
In 1972, the Philadelphia Electric Conpany filed with your predecessor Comission, the Atonic Energy Cocclssion, an application for a percit to construct a 2200 megawatt nuclear power plant in Fulton Township, Lancaster County, Pennsylvania, to be called the Fulton Generating Station. The plant site included essentially all of our 70-acre farm shich my wife and I had just empleted plans to retire to. Philadelphia Electric indicated that they wished to purchase our land, which under Pennsylvania la: they could, if necessary, acquire by right of sninent domain. We refused to sell and thus far at least the utility has not chosen to exercise its legal right to seize the land. The fact remains, however, that se still have the cloud of condemnation hanging over us. It is cry understanding that the plant as oripnally outlined in the Environmental and Safety Analysis Reports and changes thereto cannot ncr.7 be built for the vary basic reason that the manufacturer of .the high tecperature gas-cooled reactor specified for the plant has gone out of business and no other supplier makes this particula- type of reactor. Tnis developtent took place in the latter part of 1975, but for reasons I art not aware of, Philadelphia Electric's construction permit application is still being kept open on the Nuclear Regulatory Com:ission Books. I am writing to ask that you formally vacate this project. We have suffered for five years now under this threat, not knowing when the property in which we have invested so unch of ourselves may be taken fran us. I feel we have a right to request that you- Comission, which has our government's oversight respon-sibility for these plants, give us some relief by the assurance that its books on this ! particular plant have been closed. How long do se have to live under the cloud of c.ndennation? It seems to us that five years is quite long enough. I hope that we may hear from you favorably. I do not know who else we can look to for relief although you will note that I am sending a copy of this letter to Mr. Everett, President of Philadelphia Electric, who of course has the authoritv to ter:inate the project if he so chooses. l 3 Sincerely, *
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- Thomas Spackman II i ? % W . R W N Y cc: Mr. James L. Everett, President Q Philadelphia Electric Co.
2301 Market Street Philadelphia, Pa. 19101 lawrence Sager, Esquire
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.ir. Tiit::as Spachiran, II Los 08/ Po..te 1 Puch ::ottem, Pennsylvania 17',63 Dier Mr. Spec;. man:
Inis is in reply to your lettter natc d July 21,13/1 in for. .-r c:'aira cn RO 'kn requesting tnat the !!uclear Ropletcry Cc.:'.ission fers.ially . vi.cate the Fulton Generating Station ;o vject. On Ftaruary 17, 1976, Pililedelphia Electric Cc.gany and ;,': crcl .toaic Cc:npany announted egreenent to teriairate tiisir arran ;p ents te canstruct . High T2r9perature Gas Cooled iP-actors (elTG2s) at the preposen si c in f:;iten T wnsnip. Consistent wi th c'.is si te;e Lion, a: d ti e rr:<pt st s of Ps.iladelphia Electric Cc.igtiry (PEC), tne 'P.C sb!.per :<:d furt!.cr cc:ai: . ra-tion of this partic alisr project. Since ^. hat ti.e, REC bcs b-an c.alsting optio is for addi t ' inal ger.c ratir.g cip6 city , it.tt ud r.g tra 0: ,tr. c iic-n of Light kator '.eactor unit s -it the fulton !,ite. Ite . 'stuly 5;.ti.s repor ts f ro'n " C incic;t e 1:..* L no d. ti sica W.s ';e2., ; : ce by ;*T.C or, ti:e i cptic'es tney . vill seek to folics. r . tile'it is not liicly that tr;0 f uiten s ite wili 02 utili;ec 's: .G . : . s , PLC's activity in t valor, tin.1. rious op tens su.:gasts in:t t 2C wiii
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prcpose to co istrt'ct utner ::ucic:,r p:ver rea:to s, or r.::n-n;;clocr ,mta cr fa-ilities na*. subject to GC licc:ising or reyelutcry jurisdicti.n et ti o Fui ten si te. Such propo ,al s , i f impic .Ontid, we ,iri . 2 ;.fi re ray li.nd ac<1ui '.i tion to p ro c. d a nt' ? r the l e. s D T t. e 5 .s t e o f
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Tb2 GC i3 not ei)lc to rer..ove the threct of l u.d torct u tion, itse to preecnt actual acquisition. E.en if ct e bcci.s sier:- r.;e fully :ic see on.tne t particular project, PEC ci,uid propt se a nc e ;.cojtet e t tne P.;i e.r-site at a later ti .te.
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firia1ly, s.e wu;d note ton tee Cr c.iis .!:n's rey;l ti. s se r .! c.: .i . thh t an a;plitcnt ;eursue it s i;tipli. : Lion or a ; : ..i t
. .,e ;ic e .i . . iir any set ti:r.e fra.te. ir. view of t'lis end of th; f :r ti - t , 1. 9 ;.v i c ii r 11 i
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.stt tr, o uiti:drwal of PEC's a;plicc tion would riot .:a/2 ti..; .hr. it sf .
cc:.1 i:alicn of your it.: d, we belie.e that it uculd be i.3. l.pec.;.: i.;t to cor:.5.icer requiring the f;itbd..=.<al of PEC's application absent a nar: al r.ation for withdec.a1 filed with the Ato.nic Sa fety Dr.d Licensi.19 p .ard presidir.g in tite Fulton proceeding or a fon.al rec;.est for wi ti:.ii r al by PEC pur5uant to 10 CFR Section 2.107. . Altheugh we are unable to provide the relief that you seek, we trust that u live provided ycu ui th a fuller ur.derstanding of the si'u.1 tion.
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If>J' an h y ' % ... Edson G. Cese, Acti.'s Direr. tor Of fice of Nuclear Pcactor Fegtriotion
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i.ec t m ., t'o..te 1 N .1ci. ect tem, Pennsylvania l'/5s3 9 ear:;r. Spacbnan: Inis is in reply to your iett.:r n.:ted July ?1, I>!I to f or. .:r C:uira cn i 70..+.n requesting tn.it the !luclet r Re tpla t c ry CO. . i:..sion fervally i , vaca te the Fulton Generating Stei. ion p: oj:tt. On f t.arua ry 17, 1976, Philadelphia Electric Cc. car.y 4::d e cre.) to >;c ' Ct.n;.5ny announted agreenent to ter.ainate titeit a rran:;r ents te c anstr,.c t ' . iiign Tea.perature Gas Cooled iP-actors (111G25) at-th: prepsea si c in i .I't.i t .a T rn.nsni p. Consistent with cl.is 5,itee tion, ard. ti e rs:<;best s of P s. i l a <!ci phi a E l ec t r i c C:,.i.;i.ry ( PEC ) , tne 'P.C s5 !ye r er! f t r aer m :,i : rc- ' tipre of this particult r project. Since ^. hat t i .n , iiC bcs b ca ..alw ti ig i optio is f or addi tional ger.c rutir.g cyacity , -ir.clu.l r.g tr.9 .0: :.t. .lic-r. of I. i ght bier Reat.t or ur.i t s :it the f ul ton s.i'.c. TI e . ' itrily s t .ti.s re;. arts ir a FCC iricic:te 1:.: t nc detisic: N.s M.:. n ce by .7; o r, the cptic is to;y will Mek 10 foiles. r :.iile it is not lit cly tiut 140 f ultcr: tite will c.: utilitec. 'Gr .- . . s , i 5.C's a;tivity in eval.pilinq ,crious o; ,: ens su::ps ts a::t ri.C iii . prc; %c to co istr./ct otner ::oticar pruer r:er.to s, or r. :n-rinc's:r ; u:er f a:ilities not suNect to T iicensing .ir rey.iluter,. j. -iseirti .n e t ti c f ai tc n si te. 'uch propo .al s , i f i:ryl e .!ritici, we ,i d r.' ,.:i e cy li.nd
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ac<pi <. tion to pro c. d unt:)r trie 13...s o f ti.e 5..s te of ? ;r.r.! fh .v i t .
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! Ib2 T.C i:, not cble to reri.ove the threct of I val tort L u tiSn, nor to preccot at.tual actraisition. E.en if cte tioci.s attr> r . ' f ully ci v.cd on.tne t piir ticule.r project, PEC ci, id propese a nc s L. 0.4tct et toe r 3; . e.r, site et. a ialer time. ' Finally, s.e mid note tun tre Cc .iis irr.'s r.cul ti. s a r e. t . .. . i . tha t en a;plitcot ;iarsue it s at.pli. dion or a ; . ..i t ., 1:c
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r.ation for withdrawal filed uitn the Atoric Saf ety cr.d Licensiag D:.ard
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PEC pi.r.;uant to 10 CFR Section 2.10h .
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Ait5euch we are unable to provide tha relief that yc.u sack ..e tr.:st that wt. hs.c provided ;cu uith a fuiler ur.derstcnding of 1*;e si;uition.
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f.f. ~ ... . Edso., G. Ccse. AIti:ig Director-Of fice of Nucicar Pfac tor ?cgoiotion -
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UNITED Sin 1ES
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UCLEAR DEGULA11RY COMMISSPN
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*... #' fluvenber 25, 1977 o m r.n m v..
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The lionorable Robert 5. '..' alter United States House of Representatives Washington, D.C. 20515
Dear Congressman Walker:
I am pleased to respond to your letter of October 20, 1977 regcrding
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. Philadelphia Electric Company's application to construct a nuclear power plant in Fulton and Drumore Townships, Lancaster County, Pennsylvania.
You requested an explanation of the licensing process in general, as well as an explanation of the status of this particular application. I believe that it would be beneficial to first describe the licensing process,
,then to note the progress made in processing the Fulton Generating Station application, and thereaf ter to identify the current status of the applica-tion. I will also note the action that the fluclear Regulatory Commission staff presently plans to initiate on the Fulton Generating Station application.
The reactor licensing process is described in some detail in Enclosure 1 of this letter, which I will briefly summarize. A company wishing to construct a nuclear reactor facility must obtain a construction permit f ro:n the tJRC. In making its application, the company files information regarding its plans, and includes as part of its application a Preliminary l Safety Analysis Report (PSAR), an Environmental Report (ER), and informa-l tion on the antitrust aspects of the proposed facility. The t'RC staf f then reviews the information submitted to determine if it is suf ficiently complete to warrant detailed review, and if so, begins its detailed evaluation. If the application is significantly deficient, the application ! is rejected, and the applicant is instructed to remedy the information ' deficiencies. When the application has been amended to make it suitable for detailed review by the i1RC staff, the staff begins its evaluation of the safety, environmental, and antitrust (in coordination .:ith the Attorney General) aspects of the proposed plant. During its review, the tiRC staff requests additional information on the plant and its environs, in its review of the environmental aspects of the persposed plant, the MC staff evaluates the need for the plant to meet the utility company's poser generation requirements, the characteristics of the proposed site, the costs and benefits of alternative energy sources and plant sites, and the environmental impacts of construction and operation of the proposed plant.
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The Honorable Robe. 5. Walker The f1RC staff produces a Draft Environmental Statement detailing its con.lu-sions, circulates this report to Federal, State, and local ar, nci,. *icir
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comment, and subsequently produces a Final Environmental Statec.cs.: . ,c ti.e proposed plant. This process generally involves the submittal of additional information by the applicant, and may involve a change of site or changes to the proposed plant to render it envircnmentally mnre acceptable. In its review of the safety aspects of the plant, the i;RC staff eveluntes the design of the plant to determine whether it will be adequately designed and constructed, and evaluates the consequences of reactor acci-dents, including accidents which have a low probability of happening,
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but which could have serious radiological consequences. During its review, the llRC staff obtains additional information on the plant design, ard may require changes in the design to render it acceptably safe. The tRC staff produces a Safety Evaluation Report describir.g its evaluation and conclusions. During this time, the proposed plant is evaluated by the Com.aission's Advisory Committee on Reactor Safeguards, and the Committee provides its advice to the Commission.
.At the beginning of the review process, a three-menber Atomic Safety and Licensing Board (ASLB) is appointed to review the application and provice decisions on its acceptability. The ASLB receives information from the applicant, the flRC staff, and from members of the public, and provides the opportunity for the public to intervene in the proceedings. The ASL3 holds public hearings regarding the application, during which it receives testimony by the applicant, f;RC staff and others, and thereafter determines whether work at the site and on plant construction may be authorized by the floc Director of fluclear Reactor Regulation. The f1RC licensing process continues on through the later issuance of an operating license, but I will not continue the explanation beyond this point because it is not rele ant to the issue at hand.
The Pniladelphia Electric Company tendered its application to construct the Fulton Generating Station in July 1973. The fiRC staff considered the initial application to be deficient, and notified Philadelphia Electric of its rejection. Philadelphia Electric submitted a revised application, which was accepted by 'the f1RC staf f, in i;ove:rber 1973. The EC staf f conducted its detailed review over the next sixteen months, and issued its Safety Evaluation Report and Final Environmental statement in March and April of 1975, respectively. The tJRC staff supplemented its Safety Evaluation Report ., P00R OR M -
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. The Honorable Pobe.. S. Walker g in June 1975, following receipt of advice from the Advisory Cocaittee on Reactor Sa tquards. I am enclosing a copy of these docunents.
The flRC suf f concluded that af ter weighing the er.vironmental, econonic, technical and other benefits of the Fulton Generating Station egainst environmental and other costs, and considering available alternatives, that a construction permit for the Fulton site should be issued, and that the plant could be designed and operated to neet safety requirements. The Attorney General provided his advice on antitrust natters in June 1975, the last stage of hearings before the ASLB was then scheduled. In September 1975, Philadelphia Electric Company advised the ASLB that it had suspended work on the Fulton Generating Sta tion. In February 1976, Philadelphia Electric Company and rieneral Atomic Company, supplier of the reactors for the station, announced that they h0d reached agreement to terminate their arrangements to construct the reactors, i.RC then suspended further consideration of this particular prc. ject. Since Philadelphia Electric stated that they t;ere evaluating options for additional generating capacity, the ASLB suspended the hearinos, rather than terminating them, to permit partial utilization of the effort and investment expended thus far by all parties should Philadelphia Electric decide to utilize the Fulton site for a different nacicar po.:er plant. Th'e ASLB required Philadelphia Electric to report the status of its plans on a monthly basis. This was reasonable at the time since it would have benefited all parties, including the customers of Philadelphia Electric, to preserve the investment expended in site qualifica tion. In recent telephone convere-; ions with management of Philadelphia Electric, the flRC staf f was advised that Philadelphia Electric does not have present plans to utilize the Fulton site for a po..er plant, and if the site is eventually utilized, it would likely be in the 1939 to 1993 time frame. The f.RC staf f will c.onfirm this understaniing uito Philadelphia Electric ana ulli then file a motion with the AblB, which has retained jurisdiction, that the proceedings be terminated. The I;P.C staff believes that this would be reasonable in vicu of the fact that the possible early utilization of the Fulton site contemplated in 1975 has not
! materialized, and the belief that reinstitution and modification of this particular HTGR application af ter a lapse of more than a decaue could require so much updating and amendment that filing a ne.i application would be proper.
The Comnission appreciates Mr. Spackman's legitinate concern with the uncertainty overhanging the status of his farm, and ue regret that it has continued longer than strictly necessary. As Mr. Case pointed out in his earlier letter, we cannot relieve that uncertainty entircly. Houever, the probable termination of the present application should be helpful. As you requested, I will keep you informed on this matter. m " P00RORBlNAL
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The llonorable P.obert d. Ualker In codclusion, I want to address the point raised by "r. Thomas M c Mar; 11 in his letter to you of Octoter 11, 1977, indicatinq that he felt that he was battlinn both the Philadelphia-Electric Company and the imC on the Fulton application, and that this agencv and the utility were actinq as a team. Durinn its review of the Fulton arplication, the I;RC required that Philadelphia Electric Company's Environmental Report be anended seven times to reflect additional information and a chrnned desian, and that the PSM ne amended twenty-three times to reficct additional infomation and a chanqed desion. I:nre than tuenty sinnifi-cant chances to the plant, promnted as a result of the TSC staff revieu, are identified in the staff Safety Evaluation Report. This process does .
. result in a design which is finally acceptable to both the 1:RC staff and the arolicant, and can be represented as such to the ASLB. The charac-terization by 11r. Snacknan of these activities as a " team effort" of the flRC staff and Philadelnhia Electric Cecnany overlooks this earlier effort. This anency is committed to fully nect its resnonsibilities to represent the public interest, includino impartial treatment of all parties to an application to construct nuclear power facilities, and I an convinced that we are doing so.
I trust that this letter will be responsive to your requests. If jou _ require additional information, please let me know. Sincerely, Origin:I 5: ned Bf b5e?h IL Rcchic
,loseph fl. IIendrie Chairman
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Enclosures:
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- 1. The Peactor Licensino Process --
! 2. Final Environmental Statement - l Fulton Generatina Station Units 1 and 2 , 3. Safety Evaluation of the Fulton Generatinq Station Units 1 and 2, and Supplement f;o.1 ! l ! '
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f FEB 2 41978 Docket Nos. 50-463 and 50-464 Donald P. Irwin, Esquire Hunton, Williams, Gay & Gibson 700 East Main Street Richmond, Virginia 23212
Dear Mr. Irwin:
Enclosed is a copy of a letter to Philadelphia Electric Company dated January 30, 1978, concerning their application for a perrf'. to construct the Fulton Generating Station. Inadvertently, the letter was not distri-buted to the parties on the service list. ! Sincerely,
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, i ' ( Richard P. Denise, Assistant Director for Special Projects Division of Project Management l
Enclosure:
As Stated
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_ ___ _3 Honorable Barbara L. Gellman Special Assistant Attorney General Power Plant Siting Program . Department of Natural Resources Tawes State Office Building ' 580 Taylor Avenue, C-4 Annapolis, Maryland 21401 Honorable Edward F. Lawson , Special Assistant Attorney General Department of Natural Resources Tawes State Office Building Annapolis, Maryland 21401 1
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JAN 3 019/8 Docket Nos. 50-463 and 50-464 i ! Mr. J. Lee Everett, President i Philadelphia Electric Company 2301 Market Street Philadelphia, Pennsylvania 19101
Dear Mr. Everett:
In a telephone conversation on October 31, 1977, I asked Mr. V. Boyer of the Philadelphia Electric Company about plans to utilize the site in Fulton and Drumore Townships, the Fulton Generating Station site, for a nuclear power plant. Mr. Boyer indicated that use of the site might not occur until 1989 to 1993, and that eventual use of the site may or may not be for a nuclear power plant. During a telephone conversation with you on December 21, 1977, I requested that Philadelphia Electric notify the NRC of its plans to utilize this site for a nuclear power plant, and indicated that if the plans for site use were as stated by Mr. Boyer, the NRC staff would file a motion with the Atcmic Safety and Licensing Board (ASLB) that b
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the proceedings in this case be tenninated rather than remain in the present suspended condition. This letter is in confirmation of those telephone conversations and requests. In early 1976, when Philadelphia Electric anr;ounced its decision not to proceed with construction of High Temperature Gas Reactors at the Fulton l Generating Station site, and stated that options for additional generating l capacity using this site were being evaluated, the ASLB suspended the
- hearings, rather than terminating them, to permit partial utilization of the effort and investment expended in site qualification should Philadelphia t
l Electric decide to utilize the site for a different nuclear power plant. Since the possible early utilization of the site contemplated by Philadelphia Electric in late 1975 and early 1976 has not materializea, and any use may not come about for some time, the NRC staff believes that the status of the proceedings should be revised from a suspended status to a terminated status. The view that the proceedino. ch~jid be tenninated is not primarily based on a projected site use as far a:,10 to 15 years from the present, but rather that the conditions contemplated in early 1976 are no longer valid, and there is not a clear benefit in retaining the present status of the proceedings. Even if Philadelphia Electric anticipated use of the site for a nuclear power plant within a few years, it may still be appropriate to tenninate the present proceedings and file a new application specific to those plans when decisions on site utilization are made. m
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l 1 ["'h Mr. J. Lee Everett - 2- , JAh 3 01970 i l During our December 21st telephone conversation, you noted that Philadelphia Electric may be interested in qualifying the Fultor. site under NRC's Early Site Review procedures. For your information, 4 enclose a copy of a report "Early Site Reviews for Nuclear Power Facilities", NUREG-0180, which should be helpful in your consideration of this option. I suggest that you contact Mr. Malcolm _rnst St NRC for any discussion of the Early Site Review process. I am also enclosing, for your information, a copy of correspondence between NRC Chairman Joseph M. Hendrie and Congressman Robert S. Walker regarding the Fulton site. Please provide the requested information on your plans for utilization of the Fulton site by February 17, 1978. I suggest that you also indicate why the present proceedings should not be terminated, if that is your view. Please call me if you have any questions in this matter. Sincerely,
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t% N Richard P. Denise, Assistant Director for Special Projects Division of Project Management
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Enclosures:
- 1. NUREG-0180, "Early Site Reviews for Nuclear Power Facilities"
- 2. Ltr dtd 10/20/77 from Congressman Walker to Chairman Hendrie
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- 3. Ltr dtd 1/25/77 from Chairman Hendrie
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to Congressman Walker
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CC ANO TCCHNOLOGY J!)011rit O! 3dtprr5tillatibed Ela@ington, D.C. 20315 October 20, 1977 Dcctor Joseph Ilendrie Chairman Nuclear Itegulatory Conutission Washington, D.C. 20555
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Dear Doctor llendrie:
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Enclosed are copics of correspondence fonetrda] to tuy office 1r/ one of r./ constituents, Thonus Spackmn, II of Peach Bottcm, Pennsylvania. As you can sec, Mr. Spicieran is very concerned abaut the Philadelphia Ultetric Corpany's application to build a nuclear power plant in rulton Township, Iancaster County, Pennsylvania. Apparently, the application is still rending despite the fact that the m'nufacturer of the type of reactor designated for the plant has gone out of business. Mr. Spackman c+.ns land in the area sdiich could be acquired h/ right of cmir. cat hain if a plant is to be bitilt. Phila 3elphia Electric originall'/ stinitted
.tts application for a ternit to construct a plant in Pulton To'ernship in 1972 no Pr. Spacknin has faced the prospct of losing his land for five years.
Needless to say, this is a very disturbing state of affairs. One particular aspect of this nutter that is of spcial concern to r.c is ! , the fact that the public is under the ir.pression that the Fulton To.->nship nuclear gcr.erating plant is dead. There is a general asstrrption that no plant is going to be built. The idea that another nuclear plant in Fulton Toriship might still l>' under consideration by Philadelphia Electric, contrary to the public's perceptien, is disturbing to me. Frankly, I fail to understand the opn-endal nature of the application process tdtich allu.s the continuinq lussibility that Philadelphia Electric rey yet bitild some type of plant despite the fact that circumstances have changed so dramatically since the initial proposal. I w. tid appreciate a ccr:plete expl.anation of the status of this particular application and the application process in general. Furt1' err. ore, T desire to be kept abreast of every developrent and eventuality regarding Philadelphia Electric's application. Sin. ..cecely,
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Cetober 11, J .)/ /
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lionorable Robert S.1.'alker Representative, State of Pennsylvania llouse of Representatives Washington, D. C. 20515
Dear Congressman Walker:
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I wonder if I might ask your help in a matter that is of great concern to my wife and myself. The enclosed correnpondence will give you nome of the back- . ground. You will note that say original letter uas addressed to ! the Chairman of the Nuclear Regulatory Counisnion, but unfortunately he had aircady left the agency and the reply cane from a member of
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This is almost a classic case of a Couernment agency water-logged in its own sea of regulations. To m independent observer
\t would seem to be cicar that if an applican: is unable to construct , he plant he filed his application for (in the canc at hand, for the very good reason thac General Atomic, the only company making liTGR reactors, vent out of the business before it had made the first one),
then the file on the project should logically be closed. I see no reason t:hy a hearing should be necennary t.o es'.ablish 3 this. It may be a combination of (a) tiRC interpreting their oin
- rules in a customarily conservative fashion, and (b) a desire t.o cooperate to the fullest extent with the utility. As you probably know we have had some experience in dealing wit h h'RC and its predecessor, the AF.C, in connection wit h 1: bis proposed plant of Philadelphia Electric's and it was as though we were battling both the utility and the agency. They were like a tnam. Yet it is my understanding that the government agency is nupposed I.o be i:c. partial in its treatment of all the int: crested parties.
1.'c feel we have some rights in this mat ter as it is our far.n and our property that have been and continue to be threatened by
- this open end I;RC docket. The re is no purpose in holding this matt er open except as a special convenience to PE no that if Ihey want to build another type of nuc1 car plant t hoy can graf t it ont.o the current application. Meanwhile we sit here under the e,un with no one looking out for our interests.
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lionorable Roht'rt S. Walker Oct ober 11, 1977 Par,c Two ,
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!* r . Cane's contention t. hat the !!RC has nothing to do with eminent domain is a bit of a red herring. Any action they take --
or in this matter, do not take -- that is favorabic to PE facilitates that utility's moves to secure approval for its plant which t:ould then lead directly to the condemnation of our property. You uill appreciate I cm sure that. livin;; in a perpetual state of uncertainty as to whether we may momentarily be disposued is an unhappy r.utuation to be in. We would nicep better at night if the 1:RC could be pornunded t o act responsibly anil clone out PB'n
.tirrady obnolete applicar'.on. Anythinn you can do to expedite this vill be very much apprec.ia ted I can assure you.
Sincercly, ,
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Thomas'Spackman 11 TSII/r,s l Enclosures
. copy to: lion . R. S. Walker
! Fifth Floor ! Lancaster County Court 11ouse l Lancaster, Penna, 17602 f i
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- .e a e ::n . t o, te I h s c i. .'9 L tem, P ernty I v3ni a 1/%3 9dar ::r. Sj ac;.n6n:
ini s is in reply to your let t.r r.. teri July ? l , 1 > .' I t o f 0. . .: r T N i r;. c r.
? '.. i.n re ;uesting tnot the
- uclear Pe gul6;c ry
. 0. . : si . a f er: v.11 y veca te tiic f ult:,n Gener ating Stn o on ;.: vj:r t.
On f taruary 17,19/6, Fililtdelphia Electric Cc.i, any ct i :<; ccci -ic i;c C',i;,6ny cnnounted e gre e.1 sot to ter..iir.:te t ii<:i r a r ra n ;r e.'ts te c .,a , t. ..c t lii jn t I.;:.perc ture Ga s Coolc<j iu-ac ters ( ITr> s ) a t th;: pre,9,.u..,i c in
.t't.i t *. a T rn.nsnip. Consist en t wi to c'.is si Ne tion, ar d. ti e re: pest s of
.h.112.':el p hi a E l':c '. r i c C ,. iga ry ( P t.C ) . tne '.O.0 s:!,wr;ur! ftru.er .. ,i: .r -
tigre of this particular proje:t. Sin:e thi't t i ..o , iC N s b- a a t . e l ;,- t i r.; c;. ti o .s f or aMi t .onal grer.c ri.ti rq c yec i ty , i t.L i .t C r. g i. :. s '.,: t . t i c r. Of Ligiit oter P.eactor ur,its at the fulton site. Tru . 'itsly 5;.tu repnet s irvn i EC iricic;t e *:.: t nc c.ti:.ia i N.
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. :2 r-Ce by .~C t.r. the upti . is in:y . vill v.ek ;o f oiles.
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, i t i s n9t li, cly tiut tr.c f ul tct: t i t e vr l i 0 - stii?.ec f:,r .:.s,
!" C's a:ti ei ty in ; val.s Linq ,criouc op.iens su : j25 ts u.:; ri.C tii prc; me to co :str"ct utner ::oticar p:ver r:e.to s, or . :n-m.ci :r , wr f.nilit:i s u. .,; c<.1 19 .'4C iiccasir.g .:r repl ter j i s : i r t '. . , . 7 tic faiten site. 1tich prtipu ,JI s , i f i:9 0 . s1 t i ci . - 0 s i 6 e .' , i i ' 'y I 3. 0 d ac <p i r.i tion t.o pro..:. d gr;r: 2r trc 1 . .. s :s f L. .c 5 . 01,: O f ? ;r.n j ; s . 'a.
To2 V.C is not Nic to rer..ove the threc t of l u <l torc 2. : ti;n, i..,e to pre.cnt attu.11 acquisition. E .en if tre bc.d.! . t: r.e fui!y :i. .c on.tne t pe r ticular projec t, PLC ci,uid propt se a n: r :.. 6f tc t e t tue 'Mi r si te e t a l a ter t ir.ie. ( : t.a 11; , s.e .er. '. c' nc t e t rw. t r:- Cr ui s i:'n's rt e..1 Li. s c:".- .' . that an c; plit cn t ;,arsue i t s : t pli. d ein . : r i: ,..-tsr . . . . . .i r A ny s *;t t 1 *. e f rd.TO . Ir. ViCw Di t'li s e red it! ti. . ; i: 0 . t- t, .3 J ; ' !:ii . II %
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.att.fr, a uiti:dri. val of PEC's a; plicc tion trouid not 1: vn t:.; e.r.: i t :,( .
c t:.J. :*3 Licn of your it.: d, we belie.*e t'r.at i t c:.uld be in.*;.; c..;.ri :t. to - cot:sit :er requiring the f.iti de?.<al of PEC's a,:;ilic.3 tion ab!. cit 0 far ai r.:, tion for withdraal filed ui tn the Ato.nic Safet;' Or.d 1.icensi.ig Dr.ard I p.esiding in the Fulton proceeding or a fonaal rec;;.est for witi:d raal by , PFC pt.ri.uant to 10 CFit Section 2.107. .
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Ai'.Scuch i.e are unable to provide tha relief that you sack, ..e trast that st. r s.c provided cu ui th a fuller ur.derstcnding of I:e si.cition.
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llYYih *- Y.fis... . Edr.on G. Ccsc. IIti:ig Direr.L:r Of fice of Nuclear .' ac tor Fe96siotion
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I'r. ",i r.: :s F.:r. . ten , CF.,i nc.'_n July ' 21, l'- U. S. Noclear Regulatoty Co.mtission
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St3ECf: Dxhet ibs. 50-463, 50-464 .
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Dear Mr. RrrAicn,
t re Atimic Er.cr,s;y Cccr.ission, an application m d sion,
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for a p nuc]c.,c L1 e Teltonpo.cer Gene:ating plant in Fulton Tow. hip, Lanca:;ter Cnont Station. y, to
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Pinusylvania be ceil. fam id.ich my wife and I lud just cc.yleted pl. ins to retire to1he plant site Philadelphia F.lec : indicat ed that they wished to purch.sse our land, which unAr Pernsyl
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could, if necenary, acquire by right of minent dm.iin. r a law L: ey far at least the utility has mt chooca to caercise t.'e ceitsused legalto sell right cadto :ci>:e '
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'ihe us. fact rei.iins, he.ever, that we still have the cload of condex .,
ti ca hrc,mr, c e. ar.d Safety A.,alysis Iv.portr, and ch:.n:ys tlweto . l v c.. u
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reusen t hat t he i,.irufact urer of the high te;yerature W-coole>d reac;or ; the plant has gme out of bu siness and no ot her :;u;glir r rraes thin renctor. e 1his developr at took place in the latter part of 1915
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;urt h:ular W,-
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'4 pt open on the Raclear Fagulatory Co.uiission Fochs.not o ". aut
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1 am writing to csk that you font.tlly vacate this project . We have suffered for five years nca cader this thredt in -hich w have invest ed so meh of ourselves my be tak e nron f, r.ot , h..ndn" when t he p us. I feel w 'ce. . a ri ,ht ? to rec,uest that your Comission s.hich has our rpren sibilit y for these plant
- articular plant have Fcen c,losed. s, rive us sone, relief by the assurance t hatnt's oversight condcnoarion?
its bM:s en U It sctre.s to us t. hat five years is quite leng enau@.IN Ic I bope that we iray bc.ir from you fa x;rably. President of Phila6 lp' iia Electric, who of . course project if he so chocces. v..r 1 t . ha r."i ra t e t ,
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l:()l.' 00 , If U.%A0 c.c : Fr . J -r.es L. Everet t , President
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r! !h..biphia Elect ric Co. N 2301 thri:et St reet Philadelphia, Pa. 19101 O. Luct r,ce Sager, Esc,uire 7"""
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. UNITED 51n1ES
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"UCLEAR REGULAF)RY COMMISSI"N
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The lionorable Robart 5. Witer United States House of Representatives Washington, D.C. 20515
Dear Congressman Walker:
I am pleased to respond to your letter of October 20, 197? egcrding
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Philadelphia Electric Company's application to construct a nuclear power plant in Fulton and Drumore Townships, Lancaster County, Pennsylvania. . You requested an explanation of the licensing process in general, as well as an explanation of the status of this particular application. I believe that it would be beneficial tn first describe the licensing process,
,then to note the progress made in processing the Fulton Generating Station application, and thereaf ter to identify the current status of the ap;>lica-tion. I will also note the actinn that the Nuclear Regulatory Commission staff presently plans to initiate on the Fulton Generating Stati;n application.
The reactor licensing process is described in some detail in Enclosure 1 of this letter, which I will briefly summarize. A company wishing to construct a nuclear reactor facility must obtain a construction permit from the NRC. In making its application, the company files information regarding its plans, and includes as part of its application a Preliminary Safety Analysis Report (PSAR), an Environmental Report (ER), and informa-tion on the antitrust aspects of the proposed facility. Tne MRC staff then reviews the information submitted to determine if it is suf ficient.ly complete to warrant detailed review, and if so, begins its detailed evaluation. If the application is significantly deficient, the application is rejected, and the applicant is instructed to remedy the information deficiencies. When the application has been amended to make it suitable for detailed review by the NR" staff, the staff begins its evaluation of the safety, environmental, and antitrust (in coordination with the Attorney General) aspects of the proposed plant. During its review, the NRC staff ;
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requests additional inf ormation on the plant and its environs. In its review of the environmental aspects of the proposed plant, the N"C staf f evaluates the need for the plant to meet the utility company's poser generation requirements, the characteristics of the proposed site, the costs and benefits of alternative energy sources and plant sites, and the environmental impacts of construction and operation of the proposed plant. l 1
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The Honorable Robe.. S. tlalker n The 11RC staf f produces a Draf t Environmental Statement detailinr; its cor.cIn-sions, circulates this report to Federal, State, and local ap.nct. . :t.eir comment, and subsequently produces a Final Environmental Statec..:..; . ,e ti.e proposed plant. This process generally involves the submittal of additional information by the applicant, and may involve a change of site or changes to the proposed plant to render it environmentally mnre acceptable. In its review of the safety aspects of the plant, the f;RC staff evaluates the design of the plant to determine whether it will be adequately , designed and constructed, and evaluates the consequences of reactor acci-dents, including accidents which have a low probability of happening, but which could have serious radiological. consequences. During its review, the llRC staff obtains additional information on the plant design, and m3y require changes in the design to render it acceptably safe. The liRC staf f produces a Safety Evaluation Report describing its evaluation and conclusions. ' During this time, the proposed plant is evaluated by the Ccm.aission's Advisory Committee on Reactor Safeguards, and the Committee provides its advice to the Commission.
.At the beginning of the review process, a three-menber Atomic Safety and Licensing Board (ASLB) is appointed to review the application and provice decisions on its acceptability.
~ The ASLB receives information f rom the applicant, the ilRC staff, and from members of the public, and provides.
the opportunity for the public to intervene in the proceedings. The ASL3 holds p.iblic hearings regarding the application, during which it receives testimor.y by the applicant,i:RC staff and others, and thereafter deternines whether work at the site and on plant construction may be authorized by the i flDC Director of tJuclear Reacto Regulation. The f4RC licensing process ! continues on through the later issuance of an operating license, but I will not continue the explanation beyona this point because it is not relevant , to the issue at hand. ! The Philadelphia Electric Company tendered its application to construct the Fulton Generating Station '.i July 1973. The tiRC staff considered the ' initial application to be deficient, and notified Philadelphia Electric of its rejection. Philadelphia Electric submitted a revised application, which was accepted by 'the i4RC staf f, in flovember 1973. The fiRC staff cor. ducted its detailed review over the next sixteen conths, and issued its Safety Evaluation Report and Final Environmental Statement in i: arch and April of 1975, respectively. The tiRC staff supplemented its Safety Evaluation Report
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- The Honorable Robe.. S. Walker 3-in June 1975, following receipt of advice from the Advisory Committee on Reactor Sal quards. I am enclosing a copy of these docunents.
The NRC staf f concluded that af ter weighing the environmental, economic,
- technical and other benefits of the Fulton Generating Station against
- environmental and other costs, and considering available alternatives.
l that a construction permit for the Fulton site should be issued, and that the plant could be designed and operated to ncet safety requirements. The Attorney General provided his advice on antitrust matters in June 1975, the last stage of hearings before the ASLB was then scheduled. 1 in September 1975, Philadelphia Electric Company advised the ASLB that . it had suspended work on the Fulton Generating Station. In february i 1976, Philadelphia Electric Company and General Atonic Company, supplier of the reactors for the station, announced that they had reached agreenent to terminate their arrangecents to construct the reactors, t;RC then suspended further consideration of this particular project. Since Philadelphia Electric stated that they were evaluating options for additional generating capacity, the ASLB suspended the hearinos, rather
. than terminating them, to permit partial utilization of the effort and investment expended thus far by all parties should Philadelphia Electric decide to utilize the Fulton site for a different nuclear power plant.
The ASLB required Philadelphia Electric to report the status of its plans on a monthly basis. This was reasonable et the time since it would have benefited all parties, including the customers of Philadelphia Electric, to preserve the investment expended in site qualification. In recent telephone conversations with management of Philadelphia Electric, the NRC stafftia: advised that Philadelphia Electric does nnt have present plans to utilize the Fultnn site for a power plant, and if the site is eventually utilized, it would likely be in the 1939 to 1993 time frame. The NRC staff will c.onfirm this understanding uitn Pniladelphia Electric ano will then file a motion with the ASLB, which has retair.ed jurisdiction, that the proceedings be terminated. The f;P.C staf f believes . that this would be reasonable in view of the fact that the possible i early utilization of the Fulton site contemplated in 1975 has not materialized, and the belief that reinstitution and modification of this particular HTGR application after a lapse of more than a decade could require 50 much updating and amendment that filing a new application would be proper. The Commission appreciates Mr. Spackman's legitinate concern with the i uncertainty overhanging the status of his farm, and we regret that it has continued longer than strictly necessary. As Mr. Case pointed out in his earlier letter, we cannot relieve that uncertainty entirely. However, the probable termination of the present ap;)lication should t'e l helpful. As you requested, I will keep you informed on this matter. O
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The lionorable P,obert d. Italker In coriclusion, I want to address the point raised by "r. Thomas Sr.acbr,n 11 in his letter to you of October 11, 1977, indicatinq that he felt that he was battlinn both the Philadelphia Electric Company and the f!RC on the Fulton application, and that this agency and the utility secre acting as a team. Durina its revicit of the Fulton application, the ;iRC required that Philadelphia Flectric Company's Tnvironmental Import be amended sevcn times to reflect additional information and a channed desian, and that the PSM be amended tecnty-three tir:es to reflect additional infornation and a chanqcd desinn. l' ore than twenty sinnifi-cant chanacs to the plant, promnted as a result of the !!RC staff revicu, are identified in the staff Safety Evaluation Report. This process does
. result in a design which is finally acceptable to both the I:RC staff and .
the applicant, and can be represented as such to the ASLG. The charac-terization by Mr. Snacknan of these activitics as a " team effort" of the , flRC staff and Philadelnhia Electric Cer.nany overlooks this earlier effort. This anency is comitted to fully ncet its resnonsibilities to represent the public interest, including inpartial treatment of all parties to an application to construct nuclear power facilitic-s, and I am convinced that we are doing so. I trust that this letter will be rosnonsive to your requests. If you require additional information, please let me knou. > Sincerely,
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Origin:I Sdned By bSph !* Hct:Wic
.loscph !i. licndric Chairnan
Enclosures:
- 1. The Reactor Licensin9 Process -
i 2. Final Environmental Statement - Fulton Generatinn Station Units 1 and 2
- 3. Safety Evaluation of the Fulton Generatino Station Units 1 and 2, and Sucolement !;o.1
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IDENTICAL LETTERS SENT T0:
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George C. Freeman, Jr., Esquire Michael Maupin, Esquire Hunton, Williams, Gay & Gibson 700 East Main Street Richmond, Virginia 23212 , Donald P. Irwin, Esquire l Hunton, Williams, Gay & Gibson 700 East Main Street Richmond, Virginia 23212 Eugene J. Bradley, Esquire Philadelphia Electric Company
, 2301 Market-Street '
Philadelphia, Pennsylvania 19101 Honorable Frank R. Clokey Special Assistant Attorney General Commonwealth of Pennsylvania Towne House Apartments, Roon 219 Harrisburg, Pennsylvania 17105 Lawrence Sager, Esquire Sager & Sager Associates 45 High Street Pottstown, Pennsylvania 19464 Paul K. Allison, Esquire Barley, Snyder, Cooper & Mueller l 115 East King Street i Lancaster, Pennsylvania 17602 i Gilbert G. Malone, Esquire Stock & Leader l 35 South Duke Street York, Pennsylvania 17401 Dr. Chauncey P. Kepford 433 Orlando Avenue State College, Pennsylvania 16801 i
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l PHILADELPHIA ELECTRIC COMPANY
'C**"*G *^'"#' 2301 M ARriT STREET
- 'JJ itu.*.r'!.., .m PHILADELPHIA. PA.19101 ruc,gr J, e c4c,v ,
coNato staN tN 1215)841 4000 I"
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T H M ANER CORNELL nuc au Re.ca February 10, 1978
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l Mr. Roger S. Boyd, Director Division of Project Management United States Nuclear Regulatory Commission Washington, D. C. 20555 l
Dear Mr. Boyd:
Your December 19, 1977, letter requested that we identify all applications and requests for review which we plan to submit to the Nuclear Regulatory Commission between now and December 31, 1980. We wish to advise you that Philadelphia Electric Company plans to file an application with the Commission to the fourth quarter of 1978 for operating licenses for Limerick Generating Station Units 1 and 2. The Company is presently evaluating options for providing~ additional base load generating capacity for service in the late 1980's and early 1990's. In this regard we are presently planning to file, within the period in question, an amendment to our Fulton construction permit application for early site review of the Fulton site. , I trust that this information is sufficient for the ' preparation of the forecast referred to in your letter. As you requested, we will advise you promptly if our plans should change during 1978. Very truly yours, Edward G. Bauer, Jr. EGBj r:mk
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- Huwrow 8: WILLIAxs 7o7 East MAIN $TREET P.o. Box 1535 Rtcawown.VamorwzA 202:2 TELemmoNE (80* 788-8200 Casts Huwvwano WASNTWOTON, D C Orrier 1730 PEN =setvania Avt.N W 20036 P. O. Box 19230 February 28, 1978 rui..... aco 2 3-7.co
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..- 8 3 5 7 Hugh K. Clark, Esquire Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Fulton Generating Station (Docket Nos. 50-463, 50-464)
Dear Mr. Clark:
This letter will inform the Board and parties that Philadelphia Electric Company has notified the Commission, by letter of February 10, 1978 from E.vard G. Bauer to Roger Boyd (copy attached), that it intends to amend its Fulton construction permit application in accordance with the Commission's regulations so as to obtain an Early Site Review of the Fulton site. No further changes have occurred in the status of this application. When this amendment is filed we shall communicate with the Board and the parties as to the appropriate procedures for its review. In the meantime, we shall continue to report to you monthly, or as any changes occur ir. the status of the
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Fulton application, as you requested in your letter of November 26, 1975. V ry tru y vour p
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I e Donald P. Irwin Counsel to Philadelphia Electric Company cc: All Board members and alternates j Counsel for all parties Docketing and Service Section
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PHILADELPHIA ELECTRIC COMPANY 2301 MARKET STREET , PHILADELPHI A. PA.19101 (2158841 4221 J L.EVERETT
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March 8, 1978 Mr. Richard P. Denise Assistant Director for Special Projects Division of Project Management Office of Nuclear Reactor Regulation i United States Nuclear Regulatory Commission Washington, D. C. 20555 Re: Fulton Generating Station NRC Docket Nos. 50-463 and 50-464
Dear Mr. Denise:
This is in response to your letter of January 30, 1973, in which you request information on our plans for the Fulton site. In addition, you indicate that, on the basis of certain stated facts and judgments, the Staff proposes to file soon a motion to terminate Philadelphia Electric Company's present construction permit application for the Fulton Generating Station,*/ and you have asked for our views on this proposal. When we originally applied to construct two units on the Fulton site in 1973, we anticipated that they would consist of twin 1100-MWe HTGR's manufactured by the General Atomic Company (GAC). When it became clear, following the announcement j by GAC in September, 1975, that it was suspending work on the
' proj ec t , that the Fulton site could not be utilized exactly as i originally planned, we promptly requested the Licensing Board to be permitted to evaluate various available options for the l l
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Mr. Richard P. Denise Page 2 . March 8, 1978 site, including but not limited to the construction of replacement power reactors. At the Board's instruction, we have filed regular monthly status reports on the matter ever since. Until last month these letters reflected the fact that no concrete decisions about our future plans for the Fulton site had been made. Philadelphia Electric Company's current system peak demand projections indicate that the first need for additional genera-tion after Limerick Units 1 and 2 will occur in the early 1990's. Peak demands for the post-Limerick period could be substantially higher than are currently forec ast because of changes in the regional economy, demography, and a desire to switch to electricity from alternate forms of energy. Should the high estimate peak loads occur, adni!ional generation would be needed as early as 1987. The additional generation after Limerick would be base load generation, using either co~al or uranium as fuel. The economic choice is a uranium fueled plant and the prime candidate site for such nuclear generation on the Philadelphia Electric Company system is the Fulton site. In February, 1978, we notified the Commission, and the Hearing Board and parties to the Fulton proceeding, by letter (copies attached) that we had determined to amend the Fulton application so as to obtain an early site review. I had already intimated our interest in this option in my telephone conversation with you in December, 1977. Early site review, as you know, was not a course which had been available to us when the original H'GR arrangements were concluded in the winter of 1975-76; indeed, the Commission's regulations . making early site reviews available (42 Fed. Reg. 22882 (1977) ) did not become effective until June, 1977.
, Of the two types of early site review available under the Commission's regulations, it is our view that the adjudicatory Early Site Review procedure, as contrasted with a Staff site review under 10 CFR Part 50, Appendix Q, is clearly the appro-priate course of action in this case in view of the status of )
the record in the Fulton proceeding and our plans for the utilization of the Fulton site, i l
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- March 8, 1978 The existing Fulton construction permit application, including its site suitability elements, has been reviewed from both safety and environmental standpoints and has received the approval of both the Staff and the ACRS in the
' form of a final EIS, a SER and an ACRS letter. In this context it is appropriate to take the next step toward a construction permit which ig provided by an adjudicatory Early Site Review conducted within the framework of a con-struction permit docket and results in an adjudicatory decision resolving site suitability issues. ! Accordingly, it is our inter. tion to file with the Commission by the end of this year an amendment to the construction permit application for an adjudicatory Early Site Review for the Fulton site.
>bjor portions of an adjudicatory Early Site Review submission for Fulton -- those relating to the physical characteristics of the site and its environs -- remain as ,
, valid as when they were initially submitted by us and reviewed l by the Staff in connection with the Fulton construction permit ' application. Certain other portions of the submission will need to be updated and basic plant parameters provided, and we would hope to meet with the Staff in the near future to discuss concretely any necessary revisions to the substance or format of information already in the record. l The adjudicatory Early Site Review procedure permits l efficient use of the vast amount of still valid information ! already submitted to the Commission, and of the intense review I already given it by the Staff and provides for a degree of certainty not otherwise available for planning nuclear capacity.
- Such certainty is a fundamental goal of the Early Site Review
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regulations and the present status of the record in the Fulton proceeding is ideally suited to the adjudicatory Early Site , Review procedure as the next logical step in the licensing l process. Thus, the public policy goals of not only the ' Commission but of the Administration as well -- restoring confidence in and efficacy to the licensing process -- would be served.
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Mr. Richard P. Denise Page 4 , March 8, 1978 We firmly believe that orderly, efficient amendment of the present Fulton application to obtain an adjudicatory Early Site Review is a course which is fully consistent with the Commission': new Early Site Review regulations and will resolve the concern expressed in your letter that a decision be made as to the utilization of the Fu'. con site. To simply terminate the Fulton proceedings as suggested in your letter would waste , l applicable work already done, unnecessarily burden future efforts, and would constitute a lost opportunity to make use of a potentially valuable means of helping to stabilize the licensing process.
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I trust that this letter has been fully responsive to your January 30 request. If you have any questions about it, please do not hesitate to call me. Sincerely, .
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/ Docket ;;os. 50-463 m O rai and 50-464 - pE 4 om r) p}
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3' I r. J. L. Everett, President E i Philadelphia Electric Company 2301 l-iarket Street y]y
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Philadelphia, Pennsylvania 19101 *
Dear Mr. Everett:
Enclosed is a summary of the meeting held on !!ay 11, 1978 betvieen representatives of the iiRC staff and the Philadelphia Electric Company (PEC) to discuss plans for an early site review (ESR) of the Fulton Generating Station. Prior to this meeting and your letter of March 8,1978 to !!r. R. Denise, the tGC staff was considering filing a motion with the hearing board to terminate the suspended procecd'ngs in the absence of i'ra plans to utilize the Fulton site. Your letter of Iiarch 8,1978 stated your intention to file with the Co=iission by the end of this year an amendment to the construction permit application for an adjudicatory early site review for the Fulton site, and the PEC representatives at the meeting provided more details of PEC's plans for the Fulton site. In view of PEC's representations of fira piens for action with re. lard to the existing construction permit cpplicatina by the end of the year, the tRC staff does not plan to file immediately a motion to terminate the present proceedings. However, the staff is currently considering the appropriateness under the regulations of a.nending the existing construction permit application to one for an ESR, or whether a new applicaticn for an ESR shet'd be requirci If the staff decides that a m ESR applicat%n is required, it will file a motion with the ASLB to terminate the present proceedings. . Since early site reviews are handled by Environmental Projects, further ccT.unication regarding the Fulton site should be addressed to the under-signed. The Branch Chief and Environmental Project !!anager assigned to this project are R. L. Ballard and S. S. Kirslis. As was discussed briefly at tiie !!ay 11, 1978 meeting,.some aspects of our environmental reviews have been considerably revised since the Final Environmental Statement was issued on April 1975. Also, significant updating of the environmental evaluations will be required. The i;RC staff will be 7C W ' _
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available to meet with the persons preparing the amendment to discuss any questions in detail. Stan Kirslis of our staff (301-492-8426) can be contacted about agenda and meeting arrangements. Sincerely, r2-4-- .
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Voss A. Moore, Assistant Director for Environmental Projects Division of Site Safety and .
- Environmental Analysis l l'
Enclosure:
As stated cc: (seenextpage) ,
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E74ILITI: FWION CE'ERATING STATIOG m C *~ 7 APPLICANT: PHILADELPHIA FNTRIC CIX2ANY (PEC) 4 SLB.7F.CT : St.BIGRY OF MING HELD CN !&Y ll,1978 'IO DISCUSS PIR!S FOR AN EARLY SITE REVIE'.i OF THE FWKX! GEN:PATING STATICt; SITE On May 11, 1978, representatives c'f the NFC staff met uith representatives of the Philadelphia Electric Corpa:Ty (PEC) to discuss scoe aspects of PEC's plans to file for an Early Site Revies (ESR) of the Mten Generating Station site, including PEC's request that the presently suspended prcr ceeding on Mton be converted to an ESR proceeding. The meeting was also attended by persons who were opposed to PEC's plans; while these indi7id.uls had the status of observers at this open meeting between the NPC staff and PEC, the chairman of the meeting pemitted such participation as he considered helpful to the NPC staff in understanding the ra:nifications of the PEC plans. The list of attendees, and their associations, is given in the enclosure. Written notice of the meeting was p ,nided in accordance with NRC procedures on April 28, 1978. ,, The NPC s*aff provided n introduction +n the meting. W.iefly indicating the nest recent history of the application, noting the staff's indication that it wculd file a motion with the hearing board to teminate the presently suspended pro edings if there were rot fim plans to utilize the M ton site, and making it clear that the ASLB retain jurisdiction in the matter. PEC indicated that their generation facility requirement projections I indicated a future need for generating facilities at the M ton site, iwith the first and second units availcble in 1994 and 1996, respectively. PEC stated that their projections were based on: (a) A growth rate of 2.7% per year. (b) The retirement of existing plants which w. tid be 40 or rcre years old. (c) The construction of two 600 Mie coal-fired plants between 1978 and 1994 to provide needed pcuer (PEC stated that there plants are not alternatives to plants at the Mton site, but are additions) . 7e t %:.n .
f (/p he MAY 2 4 1978
- e (d) Maintenance of a 20-25% reserve.
PDC indicated that the projected dates may move to an earlier tire based on greater growth. The IEC staff stated that the projected site utiliza-tion tire, coupled with time allowances for safety review and construction, appeared to be consistent with the intents of the imC Early Site Review policy of approving a site for five years. In response to questions on whether PK had already decided that the Fulton site is only suitable for nuclear units, and what type of plant would be constructed at the site, PEC stated that it was not clear that a nuclear unit would be put at the Fulton site, and that the type of plant would be decided in about 1983. PEC noted their motivation to seek ESR and approval for the Fulton site because there is not an abundan of suitable nuclear sites. PT additionally stated that it was clearly possible that the Fulton site could be utilized for a gas cooled reactor, as conterplated in the original application. PEC also stated that it is possible that the Fulton site would be shared with another utility, in return for site sharing by others, to keep costs low. Dr. Johnsrud noted that Pennsylvania does not presently have a law which permits " site banking". In the discussion of the mechanics of the proposed conversion of the present Fulton p.Mgs into an ESR proceeding, the NRC staff egized the key l nature of the site selection process and consideration of alternative sites; the staff preliminarily concluded that the present application would have to be significantly augmented to fulfill the staff regairements. The staff also indicated that the environ: rental effects of the Peach Bottcm reactors should be considered based on current experience, and that the site land regairements for different reactors should also be considered. PEC agreed with these and other suggestions of itms of updating and expansion to be considered. indicated that they did not knw yet the extant of anendment that woald be required, and that the ESR suhnittal ray or may not involve a ccrplete re-write of existing documents and scrapping of the old doc acnts. In response to NRC questions, PEC stated that they will need to decide on the extent of application amend:nant within the next few conths, and that it will be a tough job to get the ar.an rent package empleted and submitted in 1978. There was scne discussion of the ramifications of subnitting a new applica-l tion versus extensively amending the present application. In particular, l the staff asked whether PEC believed that an amended application constrained i (versus a nea application) the rights of anyone opposed to the use of the site. PEC answered that it did not, but qualified this by noting that it i applied to those parties already ainitted to the proceedings. PEC noted 1 1 l
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that more than 900 interrogatories had already been subnitted and answered, and stated that none of the parties should wish to repeat , the sane process, nor go through the precess of establishing qualifica-l ticn to be adnitted to the proceedings. PEC indicated that they had no l plans to acquire additional land under the ESR proceedings. l Dr. Kepford asked whether ESR proceedings wcr.11d preclude full discussion l of the need for p:ver and alternative ferrs of energy. The staff replied that the ESR activities focus on site safety and enviro:rnental considera-tiens, and that not r:nch oculd be done with the need for pwer and pcuer l alternatives in an ESR. The staff noted that it had not reached a final decision on whether it wculd file a rrotion to teminate the present proceedings, but would not ! file it inrediately, that the staff wished to have the inforration provided by DEC confimed in writing, and that it would welcxm2 receipt of the views of other parties. The meeting was adjourned. ] )
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Richard P. Denise, Assistant Director for Special Projects ( Division of Project Panagment i l
Enclosure:
Atter.da .ce List l l l l l l l l l
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C:tDSURE ATn2m;CE LIST
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PEC/NPC IGY 11, 1978 MEETD:G Philadelchia Electric C e A vf Pobert H. lufae David M. Hunt Eugene J. Bradley Hunton anf Willia s Donald P. Ird NPC Stanley S. Kirslis Voss A. Poore
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Donald E. Sells George W. Knighton
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Richard P. Denise Joseph R. Cray l Save Solanco Envirement,
- e George L. Ebo. ra
' Thomas Spa-han, II i . i York Crittee for a Sa#e Enviroment
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j Chauncey Kepford
; ! Enviro = ental Coalition on Nuclear Poaer ! ,
Phylis Zitzer
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Groast w.JACM50*a GLaVEMNMENT OPER AT80NS SCIENCE AND TECHNOLOGY E)ouse at Representatibes Gashington, D.C. 20515 July 5, 1978
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[-~ -jf., Mr. Joseph M. .:2ndrie j g,, y-Chairman
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1717 H Street, N . h' . \-{., ~)'2- Wugt
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Dear Mr. Hendrie:
N .1Y; / - On several occasions I have written to you regarding the intention of the Philadelphia Electric Company to build a nuclear power plant in Fulton Township, Lancas'er County, Pennsylvania. Unsettling aspects of this situation compel me to connunicate with you again.
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Late last year, you informed me that the URC staff would be filing a motion with the Atomic Safety and Licensing Board (ASLB) to terminate Philadelphia Electric's applica-tion proceedings for the Fulton site. In ccmmunications sent to me on May 12, I learned that Philadelphia Electric (in March) had responded to the probable termination by suggesting that the company would be filing a request for an Early Site Review by the end of this year. ! I am dicturbed b; the continuing uncertainty over Phila-delphia Electric's intentions and the HRC's course of action. As 1 mentioned in previous correspondence, the , public in Lancaster County and surrounding areae ~enerally l conalders the plant " dead." Interesting 3y, late la year j the NBC shared that viewpoint to some extent as your letter l to me of November 25, 1977 indicates a finding ti.at the Fulton site would not be utilized before 1989. Now, the idea that a nuclear plant may soon be built is , ' being kept alive by the suggestions that an earl;. site review may be requested. That is a rather nebulota; ba.G n for any courae of action. While this posturing continue:, my constituent's live in uncertainty, unable to be sure of their land's value and what future personal plan- they can make. Land in the area cannot be the subject cf hny lone term planning, whether it mirbt be for develop.w nc, fnrai n ;, precervation or other use.
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Mr. Joseph M. Hendrie Page Teto July 5, 1978 I urge the NRC to take steps to discourage Philadelphia Electric's request for an Early Site Review. Furthermore, I also urge the MRC staff to request that the ASLB terci-nete the Fulton proceeding as planned last year. The history of this situation strongly suggests these steps are appropriate and the troubling uncertainty currently prevailing v:ill be resolved.
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AUR 11 UTd Docket Hos. 50-463 and 50-464
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The Honorable Robert S. Walker United States. House of Representatives Washington. D. C. 20515 1
Dear Congressten Walker:
l l This responds to your letter of July 5,1978, addressed to Chaiman Hendrie, in which you express concern about the continuing uncertainty over the , Philadelphia Electric Co=pany's intentions and the HRC's course of - l action regarding the Fulton Generating Station site. Because the applica- i tion for a construction pemit for the Fulton Station is pending before an KRC Atomic Safety and Licensing Board and its rulings and decisions my be subject to review by the Conciissioners, including Chaiman Hendrie, it was considered inappropriate for him to respond to your inquiry. I Accordingly, your letter was referred to re for response. I am pleased to provide that response. On January 30, 1978, the NRC notified the Philadelphia Electric Co=pany of its intent to file a sotion to teminate the construction pemit proceedinc in the absence of fim plans for early use of the Fulton l site. Philadelphia Electric Company responded by letter dated P. arch 8, 1975 that "...it is our intention to file with the Comission by the end of this year an amendment to the constnJction perri i t application for an , adjudicatory Early Site Review for the Fulton site." This development significar.tly changed the situation existing at the time of the January letter. Considering these changed circumstances, the NRC staff decided not to file a rotion to teminate the construction pemit proceeding. This decision was based on our view that Philadelphia Electric Cenpany intends ' to use the Fulton site for a power plant and that in several similar cases, ad applicant was pemitted to amend a construction pemit appli-cation to conYert it to an early site review. It should be noted, however, that the staff's decision does not affect the right of any party to'.the construction pemit proceeding, including intervenors, to file a r.ocion to teminate the proceeding pursuant to 10 CFR 5 2.107.
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The Honorable P.obert S. Walker l '
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b*e regret that the NRC staff position is not in accord with your urging that the NRC "... discourage Philadelphia Electric's request for an Early Site Review." However, it should be cede cle*.r that even if the construc-tion permit proceeding were teminated, Philadelphia Electric Company would be free to apply for an early site review. The Comission policy is to docket and review such applications provided they are complete as to 'the level of information needed for review and comply with the HRC regulations in 10 CFR 5 5 2.101(a-1), 2.600 3 2.60G. Therefore, uncertainty about the ultirate use of the Fulton site would not be removed by terrainating the present proceeding. On the other , hand, an early site review would lead to an early decision which would permit more orderly planning by local citizens and governinc b] dies. All parties and interested citizens would have opportunities i.o rake their vie,es heard and-considered in the course of the review and hearing. It should.also be pointed out that any parties to the present construction
'pemit proceeding, including the intervenors, may file notions with the presiding Licensing Board to teminate the.proceedin~g at any time during the early review, for the recsons given E10 CFR 5 2.605.
For your convenience, I am enclosing a copy of the NRC regulations which include the sections referred to above. We shall continue to keep you
' inforced of developments regarding the Fulton site.
Sincerely,
, tsi:nea)
/ T;'illiara J.Dir\eb Deputy Executive Director '
for Oper:tioM .
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Enclosure:
ESR rule ,
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%)ouse of Representatibes Elasi;ingicn, D.C. 20515 July 5, 1978
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Mr. Joseph M. Hendrie Chaircan Uccitar Regulatory Commission 1717 E Street, N.W. 1:ashington, D.C. 20555
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Dear .Mr. Hendrie:
On several occasions I have written to you regarding the intentic.n of the Philadelphia Electric Company to build a nuclear power plant in Fulten Township, Lancaster County, Pennsylvania. Unsettling aspects of this situaticn ccmpel me to communicate with you again. Late last year, you informed me that the NRC staff would be filing a motion with the Atomic Safety and Licensing Ecard (ASL3) to terminate Philadelphia Electric's applica-tion proceedings for the Fulton site. In communications sent to me on May 12, I learned that Philadelphia Electric , (in March) had responded to the probable termination by suggesting that the company would be filing a request for an Early Site Review by the end of this year. I at disturbed by the continuing uncertainty crer Phila-delphia Electric's intentions and the N3C's course of action. As I centioned in previous correspondence, the public in Lancaster County and surrcunding areas generally considers the plant " dead." Interestingly, late last year the U.5.C shared that viewpoint to some e:: tent as your letter to ne cf November 25, 1977 indicates a finding that the yulron site would not be utilized before 1999
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. cw, the idea that a nuclear plant may soon be built is teir.g kept alive by the suggestions that an early site rc tie. ..a; te requested. That is a rather nebulcur tasis
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f:r Er.y course of action. While this posturing certinues,
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- r. :ituer.t's live in uncertaint: , unable :: + r ur-:- f c.+ir la.-d's value and uhat future ersonal placs : M y ca.m
.1,:e . Land in the area cannot be the ubject : f 1:., Icn;
.er. plannir.5, ':hether it tight t e f er $crelcy .e: , f ar. .in ,
;r:-servation cr other use.
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. .. ..* Mr. Joseph M. Hendrie Page ?<o July 5, 1978
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I urge the N.:.C to take steps to discourage Philadelphia Electric's request for_an Early Site Revieu. Furthermore, I also urge the NRC staff to request that the ASLB terni-nate the Fulton proceedin5 as planned last year. The history of this situation strongly sus 5ests these steps are appropriate and the troubling uncertainty currently prevailing will be resolved.
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Robert S. Walker
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/ 'o, UNITED STATES
, ,g NUCLEAR REGULATORY COMMisslON
[ L ', j WASHINGTON D. C. 20555 S+, . .. . .M/ AUG 251978 Docket Nos. 50-463 and 50-464 Philadelphia Electric Company ATTN: Mr. J. L. Everett President 2301 Market Street Philadelphia, Pennsylvania 19101 Gentlemen: In a letter dated January 30, 1978, Mr. R. P. Denise of the NRC staff wrote you that the staff would file a motion to terminate the suspended construction permit for the Fulton Generating Station in the absence of finn plans for early use of the Fulton site. Your letter of March 8, 1978 responded, "... it is our intention to file with the Commission
. by the end of this year an amendment to the construction pennit apolication for an adjudicatory Early Site Review for the Fulton site." If the present proceeding were terminated, a fresh application for an Early Site Review would be required. The staff considered the implications of both procedures for all parties and decided not to file a motion to terminate the construction permit proceeding at this time. An important factor in the decision was the statement of intention quoted above.
For your information, there is enclosed a staff letter to Congressman Robert S. Walker in which matters relating to this decision are discussed. Sincerely, 6 Voss A. !!oore, Assistant Director for Environmental Projects Division of Site Safety and Environmental Analysis .
Enclosure:
l Ltr to Congressman Walker fm L. V. Gossick cc: See next page _
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Philadelphia Electric (Fulton Stattion) ' Donald P. Irwin, Esquire Dr. Dixon Callihan Michael W. Maupin, Esquire ' Union Carbine Corporation George C. Freemen, Jr., Esquire P. O. Box Y Hunton, Williams Gay and Gibson Oak Ridge, Tennessee 37830 700 East Main Street Richmond, Virginia 23212 York Comittee for a Safe Environment Honorable Edward F. Lawson Dr. Chauncey R. Kepford Special Assistant Attorney 433 Orlando Avenue Department of Natural Resources State College, Pennsylvania 16801 Tawes State Office Building Annapolis, Maryland 21401 Gilbert G. Malone, Esquire
. Ports, Beers, Feldmann & Malone Theodore A. Adler, Esquire 145 East Market Street Deputy Attorney General ,- York, Pennsylvania 17401 Pennsylvania Department of Justice Room 25-K George L. Boomsma Harrisburg, Pennsylvania 17120 Save Solanco RD #1, Box 88 Lawrence Sager, Esquire Peach Bottom, Pa. 17663 Sager & Sager Associates 45 High Street Thomas Spackman, II Pottstown, Pennsylvania 19546 Save Solanco RD #1, Box 88A W. Jeffrey Sidebottom, Esquire Peach Bottom, Pa. 17563 Barley, Snyder, Cooper & Barber 115 East King Street Dr. Judith Johnsrud Lancaster, Pennsylvania 17602 Environmental Coalition on Nuclear Power Mr. Hugh K. Clark, Chairman 433 Orlando Avenue ,
P. O. Box 127A State College, Pa 16801 Kennedyville, Maryland 21645 Gustave A. Linenberger Dr. Donald P. deSylva Atomic Safety and Licensing Board Associate Professor of Marine U.S. Nuclear Regulatory Comission Science Washington, D. C. 20555 Rosentiel School of Marine and Atmospheric Science ASLEP University of Miami Miami, Florida 33149 ASLAP Eugene J. Bradley, Esquire Docketing and Service Section - Philadelphia Electric Company 2301 Market Street Philadelphia, Pennsylvania 19101 l
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sa ass UNITED STATES 8' NUCLEAR REGULATORY COMMISSION h :- WASHINGTON, D. C. 20?"5 l %,....) AUG 11 E78 Docket Hos. 50-463 . s ' and 50-464 .
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The Honorable Robert S. Walker United States House of Representatives Washington. D. C. 20515 -
Dear Congressman Walker:
This responds to your letter of July 7,1978, addressed to Chainnan Hendrie, in which you express concern about the continuing uncertainty over the Philadelphia Electric Company's intentions and the NRC's course of action regarding the Fultort Generating Station site. Because the applica-tion for a construction permit for the Fulton Station is pending before an NRC Atomic Safety and Licensing Board and its rulings and decisions may be subject to review by the Comissioners, including Chairman Hendrie,
. it was considered inappropriate for him to respond to your inquiry.
Accordingly, your letter was referred to me for response. I am pleased to provide that response.
- On January 30, 1978, the NRC notified the Philadelphia Electric Company of its intent to file a motion to terminate the construction permit proceeding in the absence of firm plans for early use of the Fulton site. Philadelphia Electric Company responded by letter dated March 8, 1978 that ":..it is our intention to file with the Commission by the end of this year an amendment to the construction permit application for an adjudicatory Early Site Review for the Fulton site." This development significantly changed the situation existing at the time of the January letter.
Considering these changed circumstances, the NRC staff decided not to ! file a inotion to terminate the construction permit proceeding. This ! decision was based on our view that Philadelphia Electric Company intends ' to use the Fulton site for a power plant and that in several similar cases, an applicant was permitted to amend a construction permit appli-cation to convert it to an early site review. It should be noted, however, that the staff's decision does not affect the right of any , party to the construction permit proceeding, including intervenors, to file a motion to terminate the proceeding pursuant to 10 CFR 5 2.107. l l
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The Honorable Robert S. Walker l We regret that the NRC' staff posit' ion is'not'in accord with your urging that the NRC "... discourage Philadelphia Electric's request for an Early Site Review." However, it should be made clear that even if the construc-tion pemit proceeding were terminated, Philadelphia Electric Company would be free to apply for an early site review. The Comission policy is to docket and review such applications provided they are complete as to the level of information needed for review and comply with the NRC , - . . - regulations in 10 CFR 55 2.101(a-1) 2.600 to 2.606. - _ Therefore, uncertainty about the ultimate use of the Fulton site would not be removed by teminating the present proceeding. On the other hand, an early site review would lead to an early decision which would pemit more orderly planning by local citizens and governing bodies. All parties and ir.terested citizens would have opportunities to trake their views heard and considered in the course of the review and hearing. It should also be pointed oiJt that any parties to the present construction permit proceeding, including the intervenors, may file motions with the . presiding Licensing Board to teminate the proceedin'g at any time during
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the early review, for the reasons given in 10 CFR 6 2.605. For your convenience I am enclosing a copy of the NRC regulatians which include the sections referred to above. We shall continue to keep you informed of developments regarding the Fulton site.
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Sincer.aly,
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/ Winism J.DircM \,
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Deputy Execut1TC El *'O
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Enclosure:
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ESR rule _ .
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P >QG ve s -i Huc_h K. Clark, Chairman \ ~""< ,@' S Dr. Donald P. de Sylva ' ;- ,
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Gustave A. Linenberger 4 s', ens,q,rtr - In the Matter of )
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PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-463
) 50-464 (Fulton Generating Station, )
Units 1 and 2) ) MEMORANDDI AND ORDER RE PETITION TO TERMINATE DOCKET AND TO QUASH PREAPPLICATION AND EARLY REVIEW OF SITE SUITABILITY (Auguse 8, 1979)
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On July 3, 1973, Philadelphia Electric Company (Appli-cant) filed an application for a permit to construct two 1163 MWe high temperature gas cooled reactors (ETGRs) in Fult:n and Druccre :cunships, Lancaster County, Pennsyl/ania. The application was docketed on November 16, 1973 and subse-cuently a Nctice of Hearing on Application for Construction Perni: was published in the Federal Reelster. o
-1/ Pursuant to ther notice, a number of persons or groups filed petitions to inter tene and were admitted as parties to the proceeding.
In addition, the States of Pennsylvania and Maryland were ainit :e d as interes te d states . 1/ 33 Fad. ?.eg. 3L454 (December 14, 1973)
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2 During 1974 and part of 1975, there was extensive discovery among the parties as well as detailed negotiations relating to stipulations on contentions. Also during this
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period, the Commission's Staff (Staff) prepared and issued its Safety Evaluation Report and Supplement and the Draft and Final Environmental Statements on construction of a facility utilizing the HTGRs proposed by Applicant. By letters dated September 17, 1975 and February 19, 1976, Applicant informed the Atomic Safety and Licensing Board (Board) that its nuclear steam supply system vendor would no longer proceed with work relating to the Fulton facility, that Applicant had suspended design and analysis work on the facility, and that it would undertake an evaluation of avail-able options for baseload generating capacity for the period from the mid-to-late 1980's. The Fulton construction permit proceedings, as well as the Staff review of the Fulton appli-cation, thereupon assumed a suspended, inactive status, and remained inactive until the latter part of December 1973. On December 29, 1978, Applicant filed Amendment No. 32 to its construction permit application. Therein, Applicant i sought an adjudicatory early site suitability review for the Fulton site pursuant to 10 CFR 2.101(a-1) and dubpart F to i i 10 CFR Parc 2. 0 1
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3 On May 14, 1979, the Save Solanco Environment Conserva-tion Fund (Petitioner), an admitted intervenor and party to this proceeding, filed a " Petition to Terminate Docket and To Quash Preapplication and Early Review of Site Suitability". The Petitioner requests that the Board order the Applicant to show cause why its application, including the application for an early site review, should not be terminated. While not very clearly worded, the Petitioner's contentions may be su=marized thus: (a) The application for an early site review is defective because no specific reactor type is proposed. (b) The accident analysis relied upon for demon-strating site suitability is invalid. (c) Objections of local governing bodies show that an early site review is not in the public interest. (d) An early site review would be so incomplete as to be a violation of the National Environmental Policy , Act (NEPA). l Petitioner erroneously assumes that Applicant's request for adjudicatory early site review falls under Appendix Q, j Part 50 of 10 CFR. Actually, as stated hereinabove, the cur- j rent proceedings are pursuant to 10 CFR 2.101(a-1) and Subpar: I l
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I 4 l i F of Part 2 of 10 CFR. We will proceed as though the Petition ! cited the applicable regulations. The Petitioner's prayer for relief requests an order on Applicant to show cause why its application should not be terminated, including the application for an adjudicatory early site suitability review. No such order is mentioned specifically in the Commission's regulations. However, the Commission need not promulgate general rules to exercise its
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powers. Moreover, if the Commission has provided rules for . the use of orders to show cause, such rules should provide clues as to the type of situations in which it deems such orders to be appropriate. Subpart B of Part 2 of the Commis-sion's Rules of-Practice, 10 CFR 2.200 et seq., authorizes certain members of the Staff to issue orders to show cause in situations where licensees have failed to live up to stan-dards of conduct required of them by statute,_ regulation, rule, board action, or licensing conditions. The order must state the remedy, allege facts deemed sufficient grounds for the proposed action, inform the licensee of its right to demand a hearing before a board appointed for that specific purpose, and other details, all as set forth in 10 CFR 2.202. Also an individual who knowingly makes, or knowingly causes to be made, an ex parte communication in violation of 10 CFR 2.780 is 2/ In the Matter of Union Electric Company (Callaway Plant, Units 1 and 2), ALAB-527, 9 NRC 126 (1979).
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5 subj ect te an order to show cause why remedial action should not be taken. 10 CFR 2.780(h) (amend:ent May 4, 1979, Supplement Number 9 to 10 CFR issued May 10, 1979). Although not called an order to show cause, a similar procedure is provided in dealing with attorneys who appear before boards and who fail to co= ply with required standards of conduct. (10 CFR 2.713). In ather words, in the context of proceedings before the Co= mission, an order to show cause is a recedial step in dealing with failure to meet required standards of conduct. The Petition dealt with herein does not make alle-gations of any such failure. It must be denied. In dealing with a pleading such as this Petition, an effort should be made to deal with its merits and to avoid an abrupt denial solely because of for=. Both the Applicant and the Staff have filed briefs in which they have addressed themselves to the cerits as though the pleading had been a motion under 10 CFR 2.605 to request that the Co= ission decline to initiate an early hearing or render an early partial decision on an issue or issues of site suitability. The plead-ing will be considered as though it were such a motion. In its response, dated June 4, 1979, to the Petition, the Staff stated that it was currently reviewing Applicant's early site review applicatien for acceptability; that it had
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s 6 not yet determined whether the application is sufficiently complete under 10 CFR 2.603(b)(1); and had not issued the notice of acceptability on the application in accordance with 10 7FR 2.603(c). These early site review regulations provide for a de-tailed review of site suitability matters by the Staff, an adjudicatory hearing directed toward the site suitability issues proposed by the Applicant, and the issuance by a li-censing board of an early partial decision on site suitability issues. It should be noted that a partial decision on site i suitabilitp is not a sufficient basis for the~ issuance of a construction permit or for a limited work authorization.
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Neither of these steps can be taken without further action, which includes the full review required by section 102(2) of the National Environmental Policy Act of 1969, as amended (NEPA), and by 10 CFR 51 which implements NEPA (see 10 CFR 2.606). In other words, the ear'ly partial decision on site suitability does not authorize or license the Applicant to do j anything. It does provide Applicant with information of value
l to Applicant in its decision to either abandon the site or proceed with plans for the design, construction, and operation l of a specific nuclear power plant at that site. Implementation I of any such plans is dependent upon further review by the Staff 1
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and approval by a licensing board. l l l
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7 l l ! ! Petitioner's contentions (a), (b), and (c) address the substance of the Applicant's request for an adjudicatory early site suitability review. At the present time the Board does not have before it the results of the Staff's docketing and review activities. The Board is not in a position to act on these contentions until the Staff has first performed its duties. Moreover, the docketing and review activities of the Staff are not under the supervision of the Board. In a context different from the present proceeding, the
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nature of the licensing process has been well summarized by the Supreme Court-3/: In order to obtain the construction permit, the utility must file a prelimir.ary safety analysis report, an environmental report, and certain infor-mation regarding the antitrust implications of the proposed proj ect. See 10 CFR 2.101, 50.30(f), 50.33(a), 50.34(a). This application then undergoes exhaustive review by the Commission's staff and by the Advisory Committee on Reactor Safeguards (ACRS)
.... Both groups submit to the Commission their own evaluation, which then becomes part of the record of the utility's application. See 42 U. S. C. 2039, 2232 (b) . The Commission staff also undertakes the review required by the National Environmental Policy Act (NEPA), 42 U. S. C. 4321, et sea., and prepares a draft environmental impact statement, which, after being circulated for comment, 10 CFR 51.22-51.26, is revised and becomes a final environmental impact statement. 10 CFR 51.26. Thereupon the three-member Atomic Safety and Licensing Board conducts a public adjudicatory hearing, 42 U. S. C. 2241, and reaches a decision which can be appealed to the Atomic Safety 3/ Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S.
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519, 526-27 (1978) (footnotes omitted). See also Public Service Company of New Hampshire (Seabrook Sta-tion, Units 1 and 2), CLI-77-8, 5 NRC 503, 523-515 (1977).
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8 and Licensing Appeal Board, and, in the Commis-sion's discretion, to the Commission itself. 10 CFR 2.714, 2.721, 2.786, 2.787. The final agency decision may be appealed to the courts of appeals. 42 U. S. C. 2239; 28 U. S. C. 2342. A more detailed analysis of the relationship between the Staff and licensing boards has been made recently by 4/ the Atomic Safety and Licensing Appeal Board.~ This analysis indicates that licensing boards have wide authority over parties to a. hearing, including the Staff, on matters pertain-ing to the hearing. Only in most unusual circumstances (not present here) should a licensing board interfere in the review activities of the Staff. A ruling on the Petitioner's conten-
tions (a), (b), and (c) would be premature and an infringement of the Staff's function. Treating the Petition as a motion under 10 CFR 2.605, the Motion is denied as to contentions
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relating to substance. This denial is without trejudice to renewal at a more appropriate time. Petitioner's contention (d) appears to be an attack on
the Commission's regulations as being inconsistent with NEPA. Attention is directed to 10 CFR 2.606, which requires full I l compliance with NEPA, and which regulation is discussed briefly . I
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above. A licensing board is without authority to rule on such an attack. See 10 CFR 2.758. As to this contention, the Motion is denied. 4/
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In the Matter of Offshore Power Systems , ALAB-489, 8 NRC 194 (1978).
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The Petition also requests certifice. tion to the Commis-sion of such of the issues presented as this Board 'e ems necessary. After consideration of the issues presented and the Board's rulings on such issues, certification to the Commission is not deemed necessary as to any of them. As to this request, the Motion is denied. In sum =ary: (1) The Petitioner's request for an order to show cause is denied. (2) Treating the Petition as a motion under 10 CFR 2.605: (a) As to matters of substance, the Motion is denied without prejudice to renewal thereof. (b) As to the challenge to the Com=ission's regula-tions, the Motion is denied. (c) As to the request for submission of issues to the Cocnission, the Motion is denied. IT IS SO ORDERED. FOR THE ATOMIC SAFETY AND LICENSING BOARD l Hugh K. Clark, Chairman ! l Dated at Bethesda, Maryland l This 8th day of August 1979.
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- E. G. BAUER, JR.
BEFORE THE ] ru- ' RUUC TCL _ U.11TED STATES MUCLEAR REGULATORY CO'.t'.ISSION
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In the Matter of -
- ,$,' g g,,g,y' Docket Nos. 53-463 .
gg 3 ; g.g 50-464 cc PHIIX'ELP: IIA ELECTRIC CO!!PANY)
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PETITION TO TERMI!! ATE DOCKET
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AND TO OUASH PPEAPPLICATION t.ND EARLY
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REVIEM OF SITE SUITABILITV
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TO THT '!OYOPABLE, HEARI"G BOARD OF TliE I!UCLEAP REGULATORY CC""ISS 1031 :
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Petitioner,~Snve Solanco Environment Conservation Fund, by its attorney,
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RESPECTFULLY R5PRESERTS AS FOLLO-
- 1. Petitioner is intervening party in the above captioned dochet
- 2. The application for a construction permit by Philadel-ohia Electric uas originally filed with tlia Atomic Energy Commission on July 3. 1973. In about September, 1975, the arnlicant suspended activity concerning the orcposed construc-tion nernit.
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- 3. The application of July 3, 1973 by Philadelnhia l l
Electric included an environnental report. In that report, it l , uas assarted that additional nuclecr generatin? caoacity was necessary for the base load of the Philadelphia Electric systen l early in the 1930's, thuc describing and justifying the need for the Fulton C-enerating Station.
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i 4. A final environmental statement relating to the
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proposed Fulton Generating Station, Units 1 and 2, was filed by the staff in Anril, 1975. The regulatory staff concurred in the need for additional electric generating services as
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sugP.esced by the annlicant. - 5 Tine has clearly established that the forecast of both the an,licant. and the Nuclear Regulatory Commission has been grossly in error as to the na.ed for addl.tional generating - canacit" in the early 1930's by the pronosed Fultoh Generating
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"tation.
- 6. The applicant originally planned to construct twin
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1,100 megawatt high tenperature gas reactors manufactured by General Atomic Comnany. That company announced on September ~17, 1975 that it uould not manufacture the proposed units.
- 7. To date, to the best of the intervencr.'s knowledge, no substitute or alternate facility for the proposed site has been uroposed formally to the' Nuclear Regulatory Commission.
There has not been a safety evaluation concerning any proposed - nuclear reactors for the site in question.
- 3. On or about December 29, 1973, Philadelphia Electric Corcpany submitted to Harold V. Denton, Directorof the Office of Nuclear Regulatory Regulation, its'annlication for Early
- Site Suitability Review.
- 9. The a'pplication r'elies on' the 1973 subcitt'al'to the Atomic Energy Commission with respect to various is' sues prenosed'for'early site review. For exannle- the envir'nmental o
effects of accidents', Chapter 7, r. elates to radiological
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consequances'as set forth in the 1973 analysis.
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The applicanfon is d2fective in that it does not
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relate to a specific nuclear reactor tha't is pronosed to be sited at Fulton. Accordingly', an analysis of radiological conssoucaces and environ =cntal effects of accidents is puraly speculativa, conj 2ctural, and unr21ated to any facts as propos e d .-
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- 11. Furtharrorc it is clcar thet the environmental effects of accidents hava no significant relationship to the facts since that chapter do'es not account for recent studies by the '4uclaar Regulator'j Commission concerning accidents, no'r .
the environmental effects of accidents as established by the Thre2 Milo Island accident.
- 12. The applicast now asserts that the need for.additioncl 3cnaratin.3 capacity is necessary for the period from 1994 to 1999 (as opposed to ten to fifteen y2ars earlier as indicated in its application of 1973).
~ , 13 . It is submitted that any discussion in 1979 as to s;j f
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alternatives for ena~rgy sources fifteen to twenty years later is inannropriate contrary to the mandates of the National Environnantal Policy Act and would not be in the public interest
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since the degree of likelihood that any darly findings on these issues as' u211 as others iiould r'etain th2ir validity in later
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- rovians as tha facts already wall demonstrate.
-14. Since the orininal~ filing, the Huclear Regulatory Commission has published the Reactor Saf2ty Study and Review by the Lcuis pencl. The fluclcar Pe7ulatory Commission accepted the findings of the snecial reviT' groun headed by
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J, Dr. liarold Lewis'of the University of.. California at Santa Sarbcra. That group indicated that!the, prior reports and
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studiss of the Commission',. notably the Reactor. Safety Study, .
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HASil 1400, hkd -not adequately indicated the full extent of tha consequences.of ranctor accidants and did not sufficiently
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emphas ica the uncertaintic.s involved.in the calculation of
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their rrobability. ,
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- 15. The acceptance of tha Lewis report was in 1979, ap?ronirmtaly Sh y2ars.cfter the initial ap?licati6ntof Philacelchia Electric ~.". Much' 'of t,he accident analysis in the ,
original application'of Philadelphia 51ectric was~ based upon the promises.cnd probability studies of the now disclaimed . WAS3-1400 Rtport. 'On.or about March 23,.g979, an accident
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occurrad rt Thrac Mile Island:of significant safety concern-
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af.fecting the und6rlyina bases.a,nd foundqti,ons'oftthe Nuclear
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R2gulatory Commission concerning,its policy with respect to,
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siting, safety inspections, safety regulations, and the general review and operation of'hclearn cowsr facilities.
- 16. Uithout updatin.a its application, Philadelphia Electricnowseeksto$aveasiteapprovedforapossible
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nuclear reactor in Lancaster Countyr. Pennsylvania. Various
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governmantal and state agencies have objceted.to an early ravicw of the site issues ir accordance with 10 CFR, Anpandix - C, Part 50, Section 2.605, as not,baing in the public interest. Attached hereto and nada a part hereof are copics of said
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objections.
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- 17. The early si.to revieu process as set forth in A,0._nti< 0, pcrt 50, is contrary to the National Fnvironnantal Colicy Act in that it would allou a utility to establish a situs for 2 nuclaar never station without utilizing a systematic, int.rdiscinlin'.ry nnpro,ch uhich will insure the integrated us2 of th: na.tural and social sciences and th: environmantal d:sien nrts in planning and'in decision nah.ing which may have an in,nct on-n n's environnant es recuirnd by the National Envirc:r.rnt:1 Policy Act.
l 'i . Fithout knouing 2r.actly what Philadelohia Electric prouesas "ith respect to a nuclear facility on the Fulton site, this Coccission could not meet the mandates of the National Envircnm2ntcl Policy Act since it could not make the.. review as n?ndat2d by the National Environmental Policy Ict while the actions of th2 Connission may significantly affect the quality of hum?.n environntnt. Yet, the Commission would not be cble to naha a datailed statament of the environnental inocet of th2 nro,osad action since ths nature of'the proposed action is nct fully establish d. The Commission vould not be able to ?.ssass any advars2 environmental effects uhich could be evoid 3 since the nature of tha pronosed action is not fully establishad. Tha Coanission uould not be able to revi2v and dani with citarnatives to tha nrocosed action, osnecicily conc;rning safaty issu's t at h nay affect' men's environnant, th: disposal of radioactive nasta, and tS2 effects of lou-12 val radiction since the proposed facility has not boon d2t:rmin:d. For could th: Connission d: tail the relationship
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betucan local short-te,rn uscs of man's environmant in the maintennnea and enhancement of long-term productivity and irratrievable and irreversible commitm2nts of resources since the' exact nature of the facility proposed has not been estab-lished. All of the aforcsaid would create a ravian for the acrly sita apnlication uithout macting the mandates of the Nctione.1 Environn?ntal Policy Act and thus would be contrary to the sanc.
- 19. Tha pro-apolication early review of site suitability issues by Philadelphia Electric issuas as proposed by tha urtlity ara, at best, abstract conclusions without foundation n.nd fact. The Early Site Suitability Ravieu environmental renort is conaral, couched in conclusions without foundation, ow i not comprehensive to.. allo" for a full National E vironnantal Polic~y Act, particularly with reference to wasto disposal, environnantal offects o' accidants, offects of low-level radiation, and tha economica or nuclear power generation that orna6ntly axist.
'20. The consequence of Philnic1bhia Electric's application for en 03rly site suitability ravic 7 is to foist upon the public n oronosed site for n, future nuclear facility uithout e full cost-benefit annlysis, e full environmental revi2u as
, nandated by the Stational Environmental Policy Act, and without any basis in fact for_th2 coccitment o# billions of dollars of human rasources for a futurc nuclant facility of unknoun tyne, rnd without any.dogree of likelihood that any findings in'1979 dould have any relavenca to thn validity of later
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ravians ten to fifteen yar.rs hanca.
'71'^.*1CFOPS, Ntitioner prays the Hearing Board to Order the; utility to sho'r cause why its coolication should not be t 2rnin.a.t : 3, inclu lin; the e.policction for Pro-Ap?lication Early R2vian of Site Suitability issues in accordanca uith Appan:'.ix o of Part 50 of the '.'uclanr Pegu1 story Com.ission
. 1:n.nla.tions, and, if nec 2ssary, to certify such issues ns thia Soc.rf r.r.y decr. nac:sonry to the full Co:r.ission for r.; v i ci . Resocctfully subtitted, m W w c< %v 6 Lmrence Seqcr, Esquir: Attorn:y for Petitionar SAGER & GAGER ASSOCIATrc-L5 Hia,h Street Pottstoun, PA 19464 (215) 323-1323 !
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_ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ . arFOP" TPr UllTT" STt TES 'I'CLE/ It"/".iLATORY COPilSSICJ
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In t'a: " attar of )
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) 50 I64 F HIL' ~ tr.l .Mll ' EIETF.IC Cn:iP/;re)
Cr'TIEIC*T7 07 cdp.'JICF
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T S r.by cartify tS:t - P2tition to Tart.innt: "ochet
- ' tr qua s'. Dr :: --lic .tio-. nnf Early '11vi:54 o .? Sita Suited.111ty ",: serv;d on th: follo"in.7 this da.to by danesit i- t i i : ';. ". e,il, first cliss nosta.gc crona.id:
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'te ic e Stv n> Licmcim "c'r 61rt- nt oE ittr,.1 Rascurcas U. " 'bcir: ':.:ep1mtcry Cc7-issic - Ta.+1ce. st.t- c.ffica "uilling
'7:3ht rto: I' . C . 2?553 5'O Tnvlor '.vraa C4 furoolis, Itaxylanf 21401 Dr. Dcn-?' r. d2 "yl m isco-i .t . "ref :ssor of ".a.rin Sci 2nc, PAvrd 9. Ecuar. Jr. , Fsquir:
"ocenti:1 schoc' c' hri-- ,,. I
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- zi: Sci;ne: Philad21%ia "Lactric Comany Univ:~:te cf ::ic 1 2301 'trhat Str:2t
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*r. "ustmv.1.. 12- r.' 2rg:r Eu32na J. Bradicy, Esquir.:
'.tc"ic S .hty n1 Lic2nsin:; to-rd tssocinte 'hnarnl Counsal U. S. beb x P.2eelatory Ccanission Phila.d:1nhia El;ctric Carnany Wald. to , P. C. 2?555 239 '.hd.:t 9tr:et Philed219.ia. P2nnsyl'rmi 1 19101 Ir. .. Di<o. C.llih n
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T F 7c Y Crid 'bchatine, md Scrvica 4ctier 0-J Fi&. T r assa. 3713' C#fic: of th. Secr:t ry of th: Comission
/ to-i- 3 9.rj ~el T.iccmir; 'hahington, P. C. 20555 Ee rd ' t i J
') . ". . ruel r F ~& tory Dr. mamc2y R. "ceford Ccr ission 433 OrL n'a '.vr.un
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'tc-i. Sal:ty rA T.icansi 5 Pichar9 L. Linck, Esquir,
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'L s.. it-1.-r Pccilatot,j re -ission U. c. Bbelrr P.2guhtory Ce nissio-
*shi 3 ton , L . . 2^355 ihskingt<v ., D. C. 2')555 "illi - /n ' : en, Es,uir O.vil i?>
twwty ry! ,".tr-1 'bsourc:s Si'risica D n r m .t of Justica C~ .t-7. 'nn:* Su2.1dira
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M x inbury P 7- sylv~r'.- 17120
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I 1 l l P. mil K. 'lliscn Psquira ,'attormy for Fulton Tar.nshi, 123 ! brth Liru Strs.ct - P. O. Bcn 133 Lw.stcr, Pmyl"'nia 17CC4
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UNITED STATES OF AMERICA NUCLEAR REGULATORY cot 1 MISSION Before the Atomic Safety and Licensing Board In the Matter of ) PHILADELPHIA ELECTRIC COMPANY ) DOCKET NOS. ( Fulton Generating Station, ) 50-463, 50-464 Units 1 and 2) ) 1 APPLICANT'S OPPOSITION TO
" PETITION TO TERMINATE DOCKET. . .
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Philadelphia Electric Company (PE or the Applicant) hereby responds to the " Petition to Terminate Docket and to Quash
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Preapplication and Early Review of Site Suitability" (the l Petition) filed by intervenor Save Solanco Environment Conservation Fund (Solanco), and urges that it be denied.1 As will be shown more fully below, the basis for denial is that the Petition states no legal basis on which the relief sought ought to be granted. More specifically, in several respects the Petition rests on arguments which are challenges to ' ~ Commission regulations and therefore not cognizable in a licensing proceeding absent special circumstancec not here 4 1/The certificate of service for the Petition (which is undated) bears the date of May 14, 1979. Because of tardy service on the Applicant, of which the Board and parties were notified in writing on May. 25, this opposition is being filed today.
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, _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ shown, 10 CFR S 2.758. To the limited extent that the Petition raises arguments which are within the jurisdiction of an Atomic Safety and Licensing Board, these arguments not yet ripe, and in any event are addressed merely to the discretionary authority of the Board over the initiation of hearings, and do not constitute arguments for dismissal of an application. - I. BACKGROUND This proceeding involves an application for early site review including a partial init'al decision by this Board in connection with a construction ermit application, and is governed by SS 2.101(a-1) and 2.600-2.606 of the Commission's regulations, 10 CFR SS 2.101(a-1), 2.600- 2.606 (1978) (the Early Site Review Regulations or ESR Regulations) .2 The application constitutes, in fact, an amendment to an existing application in these dockets, originally filed in 1973, for permits to construct two nuclear generating units at Fulton. The units were originally designed as high-temperature-gas-cooled reactors (HTGRs). By September 2/The Petition purports to be based on Appendix 0 to Part 50 of the Commission's regulations, 10 CFR Part 50 . Appendix 0 (1978) (Petition at 5, 7). Since Appendix Q applies only to Staf f Early Site Reviews not in conjunction with an application for a construction permit and not leading to a partial initial decision, the Petition's citation of authority is clearly in error. This Opposi-tion assumes that the Petition was intended to be based se the correct regulatory authority.
. 1975, when the reactor .nanuf acturer , the General Atomic Company, announced that it was suspending '<ork on the project, NRC Regulatory Staf f safety review had pr ceeded through the issuance of a Safety Evaluation Report wi:h one Supplement and a letter from the Advisory Committee on Reactor Safeguards. Staf f review of environmental issues had advanced through preparation of Draft and Final Environmental Impact Statements. Both safety and environmental reviews indicated Regulatory Staf f approval of the Fulton site under prevailing standards fo: the construction and operation of reactors of the size and tipe applied for.3 Hearings on the application had not yet begun. Following the suspension of work on the project, PE notified the Commission that it wished to survey the available alternatives for Fulton; and following the Commission's issuance of the Early Site Review Regulations (ESR regulations) in May, 1977 (4 2 Fed. Re c . 22882 (197i)), PE notified the
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Commission that it wished to amend the Fulton application so as to secure an early site review and partial initial decision in accordance with the ESR Regulations,4 looking toward
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3/A more detailed history of this application to date can be found in the Early Site Suitability Review Safety Report ( Foreword and Chapter 1) and the Early Site Suitability Review Environmental Report (Foreword and Chapter :) filed by PE in December 1978. 4/ Letter, J. Lee Everett (PE) to Richard P. Denise
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construction of a two-unit station to be completed in the mid-1990s. That amendment (the ESR amendment), containing two volumes,5 was filed in December 1978. Together with the applicable parts of the original Fulton30 Preliminary Safety
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Analysis Report and Environmental Report, as amended, the ESR cmendment sets forth the safety and environmental information called for by 5 2.101(a-1)(1) of the Commission's regulations. The ESR amendment does not designate any one specific reactor d esig n. Ra th e r , it analyzes the Fulton site in terms of an envelope of reactor parameters encompassing standardized designs for both types of light-water-cooled reactors (PWR and BWR) as well as for an HTGR of the general characteristics previously applied for. The Regulatory Staff is in the preliminary stages of its review of the ESR amendment. II. OBJECTIONS RAISED BY THE PETITION
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footnote con't (NRC) , March 8, 1978 (copy attached). As that letter notes, one principal reason for seeking early site review in the form of an amendment to the existing application rather than as a new application (with the previous application being dismissed) is to permit use of the irge amounts of relevant infor-mation already filed and evaluated in the existing docket. - 5/Early Site Suitability Review Safety Report (December 1978) (ESSR-Safety), Early Site Suita-bility Review Environmental Report (December 1978) , ( ESSR-Env ir onmental) . 1
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The arguments and prayer for relief stated in the Petition are not always easy to follow. In various forms, they express two generalized challenges: first, to the concept of the Early Site Review regulations; and second, to the use in the ESR amendment of information from the pre-existing HTGR application. In addition, it contains a variety of more specific complaints which appear reducible to the following . Principal propositions:
- 1. Plant design:
(a) The fact that no specific plant design has been chosen for the site means that " analysis of radiological consequences and environmental effects of accidents is purely speculative, conjunctural, and unrelated to any facts as proposed." (Petition, V10) (b) Environmental review of the site is inherently inadequate under the National Environmental Policy Act if no specific plant has been designated. To the extent that the ESR regulations permit such evaluations, they are inconsistent with NEPA. (Petition, 15 17, 18)
- 2. Need for site / plant:
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(a) PE has overestimated its load growth before. How can one be sure that this will not happen again? (Petition, $5 5, 12) (b) Any disposition of the need for generating capacity fifteen to l l l i l l l
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l 1 twenty years in the future is inherently so conjectural as to be unlikely to retain any validity in later reviews. ( Pe ti tion, 113) (c) Environmental review of the site on the basis of need for power projections available fifteen to twenty years in the future is inherently inadequate under NEPA. To the extent that the ESR regulations permit such review, they are inconsistent with NEPA. (Pe tition, 513)
- 3. Technical basis for application:
(a) Reliance in the ESR application on information contained in the original Fulton application is inherently inadequate, since the original application relies on "the premises and probability studies" of the NRC.'s 1975 Reactor Safety Study, which is "now d isclaimed . " (Petition, 15 9, 11, 14, 15) (b) To the extent that the NRC's regulations permit safety analyses to be made without full attention to such matters on the Lewis Commission's report on WASH-1400 and the accident at the Three Mile Island plant, the regulations are deficient. (Petition, 515)
- 4. Consistency of ESR application with discretionary " Additional Considerations" -
(a) Any showing of need for Fulton units has an insufficient degree of likelihood of retaining its validity in later reviews. ( Pe tition, 15 13, 14) __ _
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(b) Cognizant governmental agencies have objected to the conduct of
- ESR proceedings. (Petition, fl6)
(c) The public interest would be adversely affected by an early, not necessarily conclusive resolution of issues at this time. (Petition, 1 20) ' These arguments will be dealt with in turn below, beginning with the generalized ones. III. RESPONSES TO OBJECTIONS RAISED BY THE PETITION A. General Opposition to Early Site Review Proceedings The Early Site Review Regulations are an outgrowth of and an attempt to respond to the increasing instability of the nuclear licensing process in the mid-1970's, which had forced a number of applicants, like PE, to adjust earlier plans for nuclear plants and had discouraged other, potential applicants from even attempting to seek to build such plants. As the Commission noted in its preamble to the ESR regulations in the
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Federal Register: Within the past year or so, a number of utilities have fcand it necessary, for various economic and financial reasons, to cancel or postpone plans for the . construction of nuclear power plants. It is the Commission's intent that the procedures for early review, hearing and partial decision of site suitability issues shall be available to all qualified construction permit applicants, includ ing applicants who did not request early review
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of site suitability issues at the time of their initial application but who later decide, following postponement of the target date for the actual construction of the facility, that this procedure would be advantageous. 42 Fed. Reg. 22882, 22883 (May 5, 1977). The purposes of the Commission's Early Site Review Regulations are likewise well stated in the preamble to their publication in the Federal Register. They are intended to permit an applicant for a construction permit to obtain resolution of important site-related issues which may prove dispositive of an application to construct a facility at a particular site well in advance of any substantial commitment of resources. By permitting early review and providing a measure of certainty in this important area, these procedures are expected to increase the effectiveness of the licensing process in resolving legitimate public concerns and to enhance the effectiveness of the nuclear facility planning process. Id . at 22882. The ESR regulations, both in their Federal Register form and as construed in more detail by the Regulatory Staff in NUREG-0180, Early Site Reviews for Nuclear Power Facilities (May 1977), contain numerous provisions to provide flexibility while still ensuring the efficacy of proceedings under them.6
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6/For purposes of the following discussion, it will be assumed that the ESR application in question is filed in the context of a construction permit application and is thus governed by 10 CFR SS 2.600, et sec. The discussion
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would apply equally to a Staf f Site Review under Appendix
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T Ser their terms, an ESR applicant may propose a specific
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reactor design or simply an envelope of design parameters. He may choose to obtain review of the entire range of site-related issues required for a construction permit, or may select a i lesser number of issues.7 The applicant may seek a " full" (CP-quality in depth and design specificity) determination, or may obtain a lesser, " generic" determination.8 However, an early site review and partial initial decision sufficient to justify a Limited Work Authorization must contain " full" reviews on the entire range of issues under NEPA,9 10 CFR S 2.606(a) (1978), and the Regulatory Staf f has taken the position that such a plenary review cannot be conducted in the absence of actual design information.10 As a convenient summary for the Board, the nature of the Fulton ESR spplication is as follows: It is an application in footnote con't Q, except that no hearings leading to a partial initial , decision and the possibility of a Limited Work Authorization would be available. 7/The regulations merely place no limit on the issues which an applicant can suggest for review. NUREG-0180 is more ' specific on the matter. See 42 Fed. Reg. 22882 col. 3 . t(3), NUREG-0180 at I-1. 8/NUREG-0180 at IV-1 through IV-3. 9/10 CFR S 2.606(a) (1978). 10/E.g., NUREG-0180 at A-VIII-1 (need for site / plant).
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conjunction with an application for a construction permit, and is therefore. governed by 10 CFR 55 2.600 et sec. No specific reactor design has been proposed; r ather , an envelope of para-meters covering all likely commercial reactor types -- PWR, BWR, HTGR -- has been used. All site-related issues necessary to justify a Limited Work Authorization ultimately have been treated. However, because of the absence at this point of a specific reactor design, it will.be possible to obtain only a
" generic" rather than a " full" resolution of at least some of these issues. Thus, on the basis of the present submittal alone, i.e., without a specific reactor design, PE does not appear able to obtain a Limited Work Authorization for the Fulton site.
The discussion above is intended only to place the ESR regulations and the present application in perspective, and to illustrate the general fitness of the Fulton licensing situation to the structure of the ESR regulations. It is not intended as a discussion on the merits of the ESR regulations. Indeed, questions relating to the validity or wisdom of the ESR regulations hsve no place in this proceeding. Under 5 2.758 Of the Conv.ission's Rules of Practice, 10 CFR S 2.758 ( 19 7 5 ) ,' challenges to NRC regulations are not permitted in licensing proceedings except on the narrow ground that
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special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted. 10 CFR S 2.758(b) (1978). There has been no attempt here to make-the showing required under 5 2.758(b). Nor could such a showing be made, since the Fulton situation is one to which the ESR regulations are clearly adapted. Therefore, to the extent that the Petition claims either the invalidity or the inadvisability of the ESR regulations, such claims are not properly before this Board and should be rejected. Thus, the objections in the Petition summarized above in 111(b) (absence of specific plant design), 2(c) (need for site / plant) and 3(b) (technical basis) should be dismissed under S 2.758 as being outside this Board's j ur isd ic tion . B. Use of Information from the HTGR Construction Permit Application At various points the Petition refers to, and apparently questions, PE's reliance in its ESR amendment on information from the pre-existing HTGR-oriented construction permit application. Although the objections are so general as to, leave some doubt about their intended thrust (e.g., Petition 11 9, 15, 16), the response is simple: the Fulton site possesses the same physical characteristics regardless of the _ _
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type of reactor ultimately proposed for it, and there is a wealth of baseline information on the site in the many volumes of the Fulton PSAR and ER. That information, on such matters cs geology, hydrology, meteorology and biology, has been reviewed and evaluated by the Regulatory Staf f already, and has been available to all other parties as well. While PE has updated and supplemented the information as appropriate in the ESR amendment and doubtless will do so further in the course of Staf f review, its reliance on and referencing to earlier-filed site-oriented information already in the record is merely a convenience to reviewers and consistent with the . amendment of the existing application. As to the derivation and use of information based on the design characteristics of an HTGR, that type of reactor is one of the three types around which a design envelope has been drawn for the ESR amendment. Its suitability in the context of that overall envelope is a matter for subject-by-subject proof in this proceeding, not an inherent deficiency. Thus, the use of site-related information from the pre-existing application and of HTGR-based analysis has a basis
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ll/The assertion in that Pe tition ( 916 ) that PE is seeking early site review "without upd a ting its application" is both literally inaccurate and misleading. _ __
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in both the record and common sense. The Petition's opposition to it is, at most, a factual matter for determination at hearing (when Solanco has actually placed any factual issues it chooses to in contention by prefiled testimony or other specific, documented submission) and is prematurely raised now. The objection should be dismissed. C. Specific Objections 12
- 1. Plant De sig n
- a. The simple fact is that neither the Early Site Review regulations nor their regulatory implementation in NUREG-01SO require designation of a specific reactor design:
indeed, NUREG-0180 specifically contemplates the use of design envelopes.13 Thus to the extent that this objection to the ESR amendment's use of design envelopes rather than a specific reactor is based on an asserted inconsistency with the governing regulations, it is in error and should be dismissed. If the objection merely amounts to a factual assertion that the information presented by the specific envelope of reactor 12/ Objections in the Petition will be treated here in the order in which they are discussed in Part II ~ above. 13/See, e.g., NUREG-0180 at I-2: "[I]mpact analyses would normally be based on ' envelope' assumptions regarding plant design and operating characteristics. These assumptions would be necessary, since actual plant design would not usually be known."
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characteristics set out in the ESR amendment is adequate to , sustain the desired findings, then the objection is both premature and inadequately specific. Until the completion of Staf f review and hearings, the sufficiency of the- information presented with regard te any proposed factual finding cannot be l properly assessed. Even then, any objection to the sufficiency of information presented must be made with more specificity than can be found in the Pe tition. This objection should thus be dismissed as both premature and as lacking in foundation.
- b. The objection to conduct of environmental
_ review under NEPA without designation of a specific plant is inherently a challenge to the ESR regulations to the extent that they permit such a result, and should be dismissed on that basis. 10 CFR S 2.758. Ir. any event, NEPA review has not been I
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completed, nor is it certain that it will be with construction permit specificity, on the basis of the presently filed i i application. The objection is thus premature and should thus be dismissed on that basis as well.
- 2. Need for Site / Plant
- a. The sufficiency of PE's load forecasts to
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justify now approval of a site for completion of a plant in the mid-1990s, is purely a question of factual proof and is not i r ipe for disposition now. NUREG-0180, at A-VIII-1, summarizes l l existing guidance on this question, as follows:
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Need for Site (Regulatory Guide 4.2: Sections 8.1, 8. 2, 9.1, 9.2) - Need for site is justified by a reasonable likelihood of future need for a nuclear base- load facility in the generating system of the applicant ( s) . The need would arise from one or both of two eventualities: (1) increased demand for electric power from baseload capacity where average total cost of electricity from the nuclear fueled facility is lower than that of any facility fueled with other ' fuels, and/or (2) where there is some other rationale for the addition, such as an economic advantage in new nuclear capacity replacing existing non- nuclear capacity, a need to diversify fuels, or some other rationale. The two major components of the need for site analysis are demand for baseload power and cost of alternative forms of baseload generating capacity. Potential impacts of rate restructuring, increasing price of electricity, price and availability of substitute forms of energy, and the application of conservation technology should be incorporated in the analysis of demand. The alternative of purchasing power from outside the system should also be considered. NUREG-0180 at A-VIII-1. NUREG-0180 goes on to note that " full" treatment at the Early Site Review stage "would be difficult to do, because of lack of specific cost data and high uncertainty in making very long range forecasts of need for power." Id . Thus, at the ESR stage, " generic" tr ea tmen t is expected in order "to show a reasonable likelihood that a nuclear plant will be built on the site at some not (necessarily] well defined time in the future."14 Id . The regulations and NUREG-0180, of course, 14/A " reasonable outer l im i t" of some 15 to 20
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contemplate that findings adequate ultimately to satisfy NEPA for a construction permit (or a limited work authorization) can be made only on the basis of " full", rather than " generic", t r e a tme n t . In short, prior to completion of permit-level NEPA review a later, " full" review will be required on need for site / plant (as well as on any other issue initially given
" generic" review).
In short, the adequacy of any need for site / plant showing for " generic" review is a question of fact, not yet ripe for resolution. The issue of its adequacy to fully satisfy NEPA for a construction permit becomes relevant only when " full" rather than " generic" resolution is proposed -- again, not a matter ripe for disposition. The objection should be dismissed.
- b. The question of the likelihood that a 15-to-20 year need estimate will retain its validity is a question of
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factual proof and presently unripe for disposition. It cannot
- even be posed seriously until the factual record is considerably more developed than it is now, as by the filing of testimony by Solanco.15 The objection should be dismissed.
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footnote con't years is given in the next paragraph as a defini-tion of the "not [necessarily] well defined" time. 10 - 15/To the extent that this argument is directed
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- c. The assertion of a conflict between use of 15-to-20 year forecasts and NEPA is prer.ature: as shown above, much depends on the use to which the forecast is put. This construction is also a challenge to Commission regulations and
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not litigable in this proceeding under 10 CFR S 2.758, and as such should dismissed.
- 3. Technical Basis for Application
- a. Reliance on information contained in the previously filed of the Fulton application may or may not be proper for any given purpose; but this is an issue for subject-by-subject determination, as shown in Section III B, above. Certainly, use of information submitted in accordance with the Commission's still-effective regulations and using accepted analytical techniques is not invalidated by either the Lewis Commission's limited critique of the Reactor Eafety Study, WASH-1400, or by the Three Mile Island event. WASH-1400 is not even directly relevant to the submission of the licensing information in question: WASH-14'O is not a footnote Con't to the question of whether the Board should decline, ,
as a matter of discretion, to initiate hearings because of inadequate likelihood that the decision would retain its validity, the means for such a request would be by a focused motion at the time the pre-filed evidentiary record of all parties had been submitted.
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__ l l l l licensing document, and the regulations under which the 1 inforraation was submitted were formulated long before the publication of WASH-1400. Indeed, WASH-1400 was not even published in final form until October 1975, a month af ter the cessation of work on the Fulton HTGRs! As to the relevance of the Three Mile Island event, the inquiries into its significance may in time lead to changes in regulatior.s -- or they may not. In any event, until such time the mere fact of the occurrence of Three Mile Island does not automatically invalidate information which has been submitted in accordance with still effective standards. The objection should be d ismissed .
- b. Any assertion that the regulations and other standards under which information is submitted or evaluated are illegal or unwise is beyond the scope of this this proceeding under 10 CFR S 2.758. The objection should be dismissed.
- 4. " Additional Considerations" The Petition contains various objections addressed to the discretionary provisions of the " Additional Considerations" section of the ESR regulations, at 10 CFR S 2.605(b)(2). It
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suggests that the need for plant forecast is unlikely to retain its validity ( S 2.605(b) (2)(1)); that various local governmental bodies oppose the conduct of an early site review ($ 2.605(b)(2)(2)); and that resolution of various _ _ . _ _
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site-suitability issues now would not be in the public interest (S 2.605(b)(2)(3)).
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Each of these issues has f actual aspects and the facts vary with each. What is central, though, are the following three characteristics of S 2.605(b): First, its provisions are discretionary (by contrast with 5 2.605(a)) . Second, the action the Commission (or its agent, the Board) may take is to
" decline to initiate an early hearing or render an early initial decision on any issue or issues of site suitability" --
not to dismiss an application, which is the relief requested by the Pe tition. Third, since all of the issues have factual components -- and all of them require further development before the Petition's complaints can be taken as more than mere averments -- the time for these issues to be presented to the Board is not now, but after the evidentiary record has been developed. The objection should be dismissed.16 16/Section 2.606(b) contemplates a balancing of the three factually oriented tests enumerated in it. As noted above, the ease with which this balancing can be performed varies directly with the completeness of the factual record, and the question of whether to proceed to hearing can best be measured when the prefiled record is relatively complete -- certainly not the
case at this point. Still, if a balancing were to be performed now -- however prematurely -- on the question of whether t'o proceed toward a hearing, two of the three criteria would point clearly in favor of proceeding. As to the likelihood of a determination's retaining is validity later, PE has covered the entire scope of issues for a partial initial decision; and, as NUREG-0180 notes, the broader the range
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i I ! IV. CONCLUSION The Petition is based entirely on arguments which either are outside this Board's jurisdiction under 10 CFR S 2.758 because they amount to challenges to Commission regulations, or are premature. In the former case, this Board simply cannot ontertain them as submitted. In the latter case, the issues posed by the Petition can be posed squarely, if ever, only ofter this proceeding's factual record is considerably more developed and the Petition's averments are made with more specificity and some foundation. The Petition as filed provides no colorable basis for the Board to decline to initiate hearings, and none whatever for dismissal of the application or termination of the Early Site Review. The Petition should be dismissed without prejudice to its being refiled, limited to issues within this Board's footnote con't of issues proposed and reviewed, the greater the likelihood of the continued validity of any early findings on them. NUREG-OlB0 at II-1. Of these issues, the Petition challenges ' the continued validity of only one -- need for plant / site; and the ESR amendment's treatment of this issue is consistent with the guidance in NUREG-OlB0 and not controverted by any cubstantive assertions of f act. Similarly , as to the publ-ic inter'.st in securing an early decision on site suitability issues at Ful ton , this is clearly in the interest of all concerned: both PE and the local opponents of the Fulton plant share an interest in knowing as soon as possible whether the site qualifies for a nuclear generating station. This interest is shared as well by all of PE's customers, to whom it is obligated to provide and plan for reliable service.
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. jurisdiction, at such time as the factual record has been developed adequately to permit disposition of such f actJal issues.17 Any such refiled Petition should be properly supported by specific averments of material f act, with specific references to the record.18 Re pectfull s bmitted,
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Donald P. Irwin Hunton & Williams P.O. Box 1535 707 East Main Street Richmond, Virginia 23212 Counsel to Philadelphia Electric Company Of Counsel: Eugene J. Bradley, Esq. Philadelphia Electric Company 2301 Market Street Philadelphia, Pennsylvania 19101 17/The inevitably developing nature of any issues which may be eventually posed by a successor Petition, and the need for further proof on them, illustrate why this Petition should be dismissed now. Only later confusion could result from the Board's taking any other action on the Petition, such as declining to rule on it at this time. 18/The Petition requests in passing, at 7, certifi-cation of "such issues as the Board may deem necessary"
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to the Commission. The request should not be granted. Not only does the Petition f ail to suggest any such issues; it fails even to attempt to show, as required by 5 2.730(f), why such certification would be "necessary to prevent detriment to the public interest or
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unusual delay or expense. . . .
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At tachmen t : Le t te r , Everett to Denise, March 8, 1978 DATED: June 5, 1979
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#19
. 06/04/79 UNITED STATES OF AMERICA NUCl. EAR REGULATORY COMMISSION - BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
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PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-463
) 50-464 (Fulton Generating Station, )
Units 1 and 2) )
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NRC STAFF'S RESPONSE TO SAVE SOLANCO ENVIRONMENT CONSERVATION FUND'S PETITION TO TERMINATE DOCKET AND EARLY REVIEW OF SITE SUITABILITY
- I. Introduction and Backcround On July 3, 1973, Philadelphia Electric Company (PEC or Applicant) filed an application for a permit to construct two 1160 MWe high temperature gas cooled reactors (HTGRs) in Fulton and Drumore Townships, Lancaster County, Pennsylvania. The application was docketed on November 16, 1973 and subse-quently a Notice of Hearing on Application for a Construction Permit was published in the Federal Register.1 Pursuant to that notice, a number of persons or groups filed petitions to intervene and were admitted as parties to the proceeding. In addition, the States of Pennsylvania and Maryland were admitted as interested states.
During 1974 and part of 1975, there was extensive discovery among the parties cs well as detailed negotiations related to stipulations on contentions. Also during this period, the NRC Staff prepared and issued its Safety Evalu-ction Report and Supplement and the Draft and Final Environmental Statements
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- While the petition addressed here1n is .iptioned as being before the Commission, the petition itself 1g.- ted to, and seeks relief from, the " Hearing Board". According!.c, t t.e >?aff's response to the petition is directed to the Licensing Board.
1 38 F.R. 34484 (December 14, 1973).
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i l en construction of a facility utilizing the HTGRs proposed in PEC's appli-cation. - By letters dated September 17, 1975 and February 19. 1976, the Applicant in-formed the Licensing Board that its nuclear steam supply system vendor would no longer proceed with work related to the Fulton facility, that the Applicant had suspended design and analysis work on the facility and that it would undertake an evaluation of available options for baseload generating capacity for the mid-to-late 1980's period. The Fulton construction permit proceeding, cs well as the NRC Staff review of the Fulton application, assumed a suspended, inactive status at the time of the Applicant's letter to the Licensing Board in the fall of 1975 and remained inactive until the end of 1978. On December 29, 1978, PEC filed Amendment No. 32 to its construction permit cpplication. Therein, PEC applied for an adjudicatory early site suitability review for the Fulton site pursuant to 10 CFR 82.101(a-1) and Subpart F to 10 CFR Part 2.E! The NRC Staff is currently reviewing PEC's early site review cpplication for acceptability.3/ The Staff has not yet determined whether the gpplication is sufficiently complete under 10 CFR 82.603(b)(1) nor issued
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the notice of acceptability of the application in accordance with 10 CFR 52.603(c). Against this background, Save Solanco Environment Conservation Fund (SSECF),
. en admitted intervenor and party to this proceeding, filed a " Petition to
--2/ These early site review regulations provide for a dctailed review of site suitability matters by the NRC Staff, an adjudicatory hearing directed toward the site suitability issues proposed by the applicant, and the issuance by a licensing board of an early partial decision on such site suitability issues.
3! ee S 10 CFR 62.603(a).
, _3-Tarminate Docket and to Quash Preapplication and Early Review of Site Suit-chility" (Petition) on May 14, 1979. In its Petition, SSECF requests that the Licensing Board order the Applicant to show cause why its application, including the application for an early site review, should not be terminated.4/ The bases for this request are SSECF's assertions that: (1) The application for an early site review is defective because no specific reactor type has been proposed. (2) The accident analysis relied upon for showing site suitability is invalid. (3) Objections of local governing bodies show that an early site review is not in the public interest. (4) The facility is not needed for a substantial period of time and an early site review now would violate the National Environmental Policy Act (NEPA). For the reasons set forth'below, it is the NRC Staff's position that SSECF's Petition is premature at this time and that a ruling on it should be deferred until completion of the Staff's detailed review of the early site review application. On the other hand, if the Petition is considered on its merits, it should be denied without prejudice to any later motion filed in accordance with 10 CFR 82.605(b) after the Staff has completed its detailed review. II. NRC Staff's Response A. The Petition is Premature At This Time and a Ruling Should Br Deferred Until Completion of the Staff's Detailed Re-view of the Early Site Review Application It is the Staff's position that, apart from the merits, the relief requested by SSECF in its Petition may not be sought until the Staff has completed its
--4/ Although SSECF, in its request for relief and in several other places
- 1,n its Petition (see Paras. 16, 17), refers to the site suitability review provisions of Appendix Q to 10 CFR Part 50, those site review procedures are inapplicable here since PEC has applied for an adjudi-catory early site review pursuant to 10 CFR 82.101(a-1) and Subpart F rather than a site suitability report from the NRC Staff alone under Appendix Q to Part 50. Accordingly, SSECF's references and arguments with regard to Appendix Q are immaterial and are not addressed herein.
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i I i d2 tailed review of the application for an adjudicatory early site review. Although 10 CFR s2.605 provides for termination of an adjudicatory early site review pursuant to a motion of a party, that provision is applicable to the hearing and partial decision stage of the early site review process. There is no similar regulatory provisions applicable to the review conducted by the S: f and that review is not subject to modification or termination, prior to the hearing stage, on the motion of a party. In short, the regu-1stions do not provide to a party any mechanism for controlling the Staff's review before the hearing stage is reached.5/ Accordingly, it is the Staff's position that SSECF's Petition is premature at this time and that a ruling en the Petition should be deferred until completion of the Staff's detailed review of the early site review application.
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B. On the Merits, the Petition Should Be Denied If SSECF's Petition is considered on the merits, it is the Staff's position that it should be denied at this time without prejudice to a later motion filed in accordance with 10 CFR 82.605(b) after the Staff has completed its detailed review. The basis for the Staff's position in this regard is set forth below.
-5/ In the same vein, it is questionable whether, at this stage of the adjudicatory early site review process, a motion to terminate the early site review may even be entertained. For the most part, the
- NRC actions with regard to the initial stages of the early site review are actions of the NRC Staff in conducting the acceptance review of the application under 10 CFR 82.603 and in conducting the detailed safety and environmental evaluation of the site suitability matters raised in the application. While a Licensing Board has supervisory authority over Staff actions that are a part of the hear-ing process,-it has no such aut5ority with regard to the Staff's review process. Northeast Nuc1 car En(rgy Company (Montague Nuclear Power Station, Units 162), LBP-75-19, 1 NRC 436 (1975).
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- 1. A Specific Reactor Type Need Not Be Proposed For Purposes of An Early Site Review In its Petition (Paras. 10, 11), SSECF asserts that the early site review cpplication is defective since no specific reactor type has been proposed cnd any analysis of the radiological and environmental effects of accidents could be speculative and conjectural.
It is true that a single specific reactor type has not been proposed by the Applicant for purposes of the early site review. Instead, the Applicant has presented a range of design, construction and operating parameters applicable to three different types of reactors - a pressurized water reactor, a boiling water reactor, and an HTGR. The range of parameters presented is an envelope of parameters intended to allow an evaluation of the suitability of the site for each reactor type. There is no requirement in the adjudicatory early site review regulations in 10 CFR Part 2 that a specific reactor type be proposed and, in point of fact, the approach used by the Applicant here in cetting forth enveloping parameters is fully consistent with the guidance provided by the Commission when it promulgated the adjudicatory early site review regulations.6/ In view of this, the Applicant's failure to select
--6/ In the Statement of Consideration accompanying the preculgation of the early site review regulations (42 F.R. 22882, tby 5, 1977), the Co=-
mission stated that additional guidance to persons seeking early site reviews could be obtained from "Early Site Reviews for Nuclear Power Facilities" (NUREG-0180), a document which describes procedures to be followed by early site review applicants (42 F.R. 22884). NUREG-0180 itself indicates that for early site reviews, detailed impact analyses voeld normally be based on
" envelope" assumptions regarding plant design and operating characteristics. These assumptions would be necessary since actual plant design would not usually be known. (NUREG-0180, p.I-2).
See also NUREG-0180, pp.II-1, IV-1 (reliance may have to be placed on envelope assumptions instead of on detailed design information and (FOOTNOTE CONTINUED ON NEXT PAGE)
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I a single specific reactor type for early site suitability review provides no basis for terminating the early site review and SSECF's assertions to the contrary are without merit.
- 2. There Is No Basis for Concluding That an Adequate Accident Analysis Will Not Be Performed With Regard to the Early Site Review SSECT contends that much of the accident analysis in PEC's original construc-tion pen.it application was based on the allegedly discredited Reactor Safety Study (WASH-1400) and that this, in combination with the accident at Three Mile Island, affects the underlying bases of the NRC's policy with regard to accidents, siting and safety regulations (Petition, Paras. 11, 14, 15). In essence, SSECF appears to assert then that an early site review as requested by the Applicant should not be undertaken because an adequate accident analysis will not be performed.
First, it should be noted that PEC's original construction permit application was filed in July 1973, more than two years before WASH-1400 was issued in October 1975. The Staff's Safety Evaluation Repo*;t and Supplement were issued in March and June of 1975 respectively and the Final Environmental Statement
$! (FOOTNOTE CONTINUED / ROM PREVIOUS PAGE) operating characteristics), p.A-IV-1 (use of conservative design envelopes for meteorology review), p.A-V-1 (use of an envelope of radiation source terms for accident analyses), pp.A-VI-1, 2 (use of conservative design envelopes for radiological effluent assessment and for evaluation of radiological impacts from routine operation).
While NUREG-0180 does not, of course, have the force of a regulation, it may be used to ascertain the intent of the regulations. See, e.g. Portland General Electric Co. et al. (Trojan Nuclear Plant), ALAB-531, Slip Op. pp. 18-20 (March 21, 1979) for an analogous situation in which the Appeal Board relied on a Staff guidance document cited in the Commission's Statement of Consideration accompanying the promul-gation of certain regulations to determine the intent of those regulations.
for Fulton was issued in April 1975.7/ These Staff documents which, among other things, included detailed accident analyses for the Fulton site, were thus prepared 4.nd issued long before WASH-1400 was published. There was no reliance by the Staff upon WASH-1400 and SSECF has cited no instance in which that document was relied upon with regard to Fulton. SSECF's conclusory ellegations in this vein are unsupported and unsupportabic and have no bearing on whether an adequate accident analysis can and will be performed with regard to the Fulton early site suitability review. Second, SSECF's assertions with regard to the implications of the Three Mile Island accident amount, in essence, to a challenge to the existing safety-related regulations of the Commission. Except in special circumstances not shown to exist here, such a challenge to existing regulations, whether it arises through argument of a party or by other means, is prohibited in adjudicatory proceedings. 10 CFR 62.758; Philadelphia Electric Company (Limerick Generating Station, Units l&2), ALAB-262,1 NRC 163, 204 (1975); Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 162), ALAB-218, 8 AEC 79, 88-89 (1974). Consequently, SSECF's argu-ments in this regard cannot form the basis for denying the Applicant's request for an early site suitability review. Moreover, there is currently under-way an intensive review and evaluation of the implications of the Three Mile Island accident. It is conceivable that this review might result in additior.al regulatory requirements and safety standards. In any ev'ent, the accident and safety analyses required to determine the suitabilit of the Fulton site in
-7/ See Safety Evaluation of the Fulton Generating Station, Units 1 and 2, NUREG-75/015, March 1975; Supplement No. 1 to Safety Evaluation, June 1975; Final Environmental Statement Related to the Proposed Fulton Generating Station, Units 1 and 2, NUREG-75/033, April 1975.
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cccordance with PEC's application for an adjudicatory early site review will, of necessity, be based upon the latest regulatory requirements and standards, including any applicable additional standards and requirements which are d2 rived from the Three Mile Island accident and which are in place before the Fulton early site review is completed.8/ Insofar as the Staff's early cite review findings on site suitability may be based on accident analyses
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cnd evaluations, such findings will certainly be subject to challenge and close scrutiny at the early site review hearing. Accordingly, the Three Mile Island accident provides no basis for concluding that an adequate acci-drnt analysis will not be performed in relation to PEC's early site review spplication or that PEC's request for an adjudicatory early site review should be denied now before any detailed site suitability review has been undertaken by the Staff. .
- 3. The Objections of Certain Local Government Agencies Do Not Preclude Initiation of an Early Site Review at This Time SSECF states that various local governmental agencies have objected to an early <
review of site suitability issues for Fulton as not being in the public interest. Petitioner apparently asserts that, in view of this local govern-mental oppusition, the NRC should decline to initiate an early site review.
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--8/ Since an adjudicatory early site review decision does not result in
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the authoriaation of construction (10 CFR 62.606(a)) and the findings therein are subject to reconsideration based on significant new infor-mation that substantially affects the conclusions on site suitability from the early site review (10 CFR 82.606(b)(2)), there is clearly a mechanism to assure that any significant additional regulatory require-ments or standards resulting from the Three Mile Island accident will properly be accounted for before any final decision authorizing the use of the Fulton site is issued by the NRC.
10 CFR s2.605(b) provides, among other things, that on motion of a party to,the proceeding filed at least 60 days before the commencement of the hearing on site suitability issues, the Commission may decline to initiate an early hearing or render an early partial decision on any issue or issues of site suitability ... (2) In cases where it appears that an early partial decision on any issue or issues of site suitability would not be in the public interest considering (1) the degree of likelihood that any early findings on those issues would retain their validity in later reviews, (2) the objections, if any, of cognizant state or local govern-ment agencies to the conduct of an early review on those issues, and (3) the possible effect on the public interest and the parties of having an early, if not necessarily conclusive, resolution of those issues. (Emphasis added). Thus, under the adjudicatory early site review regulations, local governmental opposition is one factor to be considered in determining whether an early site suitability hearing should be held and a partial decision issued. At the same time, that regulation is expressly directed toward commencement of hearing and issuance of a partial decision pursuant to the hearin'g. There is no pro-vision in the regulations for rejecting out of hand an adjudicatory early site review application before the acceptance review under 10 CFR 52.603 has been completed or before the NRC Staff has performed its detailed review of the application and of the site suitability issues raised therein. At present, the acceptance review for PEC's application has not been completed cnd the Staff's detailed review has not even begun. In this setting, SSECF's ~ petition is, at best, very premature if it is entertainable at all.1 Moreover, the opposition of local government agencies to an adjudicatory early site review constitutes only one factor bearing on whether an early
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9/ See Section II.A supra.
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hzaring and partial decision on site suitability matters would not be in the i public interest. As to the other factors, there is no indication that early l findings on the site suitability issues raised.by the Applicant would not ratain their validity in later reviews.10/ Similarly, indications of adverse
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offects on the public interest and the parties in having an early resolution of site suitability issues for Fulton are singularly lacking. On the contrary, full pursuit of the adjudicatory early site review procedures would appear to be in the public interest since, as stated by the Commission in its Statement of Consideration accompanying the promulgation of these regulations (42 F.R. 22882), it should " provide a measure of certainty" as to site suitability, and " increase the effectiveness of the licensing process in resolving legiti-mate public concerns and .. enhance the effectiveness of the nuclear facility planning process." There is a decided public interest in the prompt airing and resolution, to the extent possible, of questions pertaining to the acceptability of a site proposed for a nuclear facility. Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 162), ALAB-277, 1 NRC 539, 552 (1975). It is the Staff's view that, on balance, the public interest does not favor a termination of the early site review for Fulton (which at this point has barely begun), even if a request for termination is cognizable at this time, and that SSECF has not shown otherwise.
---10/ In particular, such matters as the physical contours of the' site, i and site seismology, meteorology, geology and hydrology should not change significantly over a period of several years. Potomac Electric Power Company (Douglas Point Nuclear Cencrating Station, Units 162),
ALAB-277, 1 NRC 539, 548 (1978). In turn, site suitability findings with regard to such matters should retain their validity for the period of time during which an early partial decision on site suitability would remain effective.
- 4. NEPA Does Not Preclude an Early Site Review and Provides No Justification for Terminating PEC's Application SSECF makes numerpus claims to the effect that an early site suitability review for the Fulton site would violate NEPA. Specifically, it is asserted that the early site review process itself violates NEPA because it allows establishment of a site for a nuclear facility without the systematic interdisciplinary environmental evaluation required by NEPA.11/ -
(Petition, Para. 17). It is also argued that an early site review of this specific application would violate NEPA since, because of the general nature of the application and the lack of a specific and detailed facility design, the NRC cannot conduct a full evaluation of the environmental impacts of, alternatives to. or economic and environmental costs and benefits of, the proposed facilility as required by NEPA. (Petition, Paras. 18, 19, 20). SSECF totally misapprehends the nature and import of the adjudicatory early site suitability review process. The adjudicatory early site review does not result in the authorization of anything by the NRC. Although an evidentiary hearing on site suitability matters proposed by the applicant will be held and a Partial Decision on such matters will be issued, the adjudicatory early site review regulations explicitly provide that: (n]o limited work authorization may be issued pursuant to 950.10 (e) of Part 50 of this chapter and no construction permit may be icsued without completion of the full reviev required by section 102(2) of the National Environmental Policy Ic_ of 1963, as amended, and Part 51 of this chapter. 10 CFR s2.606(a) (emphasis added).
---11/ On its face, this assertion appears to be an impermissible attack on the early site review regulations. As previously indicated, the Commission's regulations are not subject to challenge in adjudicatory proceedings absent the showing of special circumstances. 10 CFR 82.758. No special circumstances have been shown to exist here.
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Thus, the adjudicatory early site review process is not a federal action that will result in environmental impacts of any sort. The early site review process, quite simply, amounts to nothing more than an svaluation of certain site-related matters to determine the suitability of the site, from an environmental and safety standpoint, as it is affected by those site-related matters. The early site review process does not pretend to constitute a full NEPA review and it has long been recognized that an early consideration of certain site-related matters is only a part of the total review and evaluation that is mandated by NEPA.12/ - At the same time, there is neither a statutory nor regulatory prohibition against considering site-related matters early and prior to completion of the full environmental review required by NEPA.13/ That full NEPA review, including a balancing of costs
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and benefits, will, of necessity, be performed if and when PEC prosecutes its application for a construction permit. At that time, any findings on site-euitability made pursuant ta ihe early site review, insofar as such findings retain their validity, wi.'.1 be f actored into the full NEPA evaluation.1b In the meantime, an adjudicatory early site review for the Fulton site is fully consistent with NEPA and SSECF's assertions to the contrary are simply wrong. 1! See Douglas Point supra, ALAB-277, 1 NRC 539 at 546-47.
---13/ In ruling that an early consideration of site-related matters prior
- to a full NEPA review is wholly appropriate and not proscr; bed by statute or regulation, the Appeal Board has noted that [b]oth the Atomic Energy Act and NEPA are singularly free of provisions purporting to fix the precise times at which evidence is to be gathered and findings made. Just as clearly, the Commission's regulations do not attempt to dictate such matters. (footnote omitted). Douglas Point supra at 1 NRC 544. 14/
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See 10 CFR 82.606(b)(2) and footnote 3 to that regulation.
SSECF also claims that the original projections of the Applicant and the Staff cs to the date when the generating capacity of a facility at the Fulton site would be needed were " grossly in error' and, in view of the currently projected period of need, any consideration of alternate energy sources in an early site review would violate NEPA (Petition, Paras. 3, 4, 5, 12, 13). Once again, SSECF misapprehends the nature of the early site review process and the findings that will result therefrom. Site suitabilty, not "need for power'.' or the viability of alternate energy sources, is the subject of an early site review. Because of the lack of specific cost data and the uncertainty in long range forecasts of need for power, a full review of the need for power as required for a construction per-mit is not feasible in an early site review. Accordingly, the early site review process does not contecplate a full need for power analysis or a detailed evaluation of alternate energy sources.15/ Rather, such full-scale
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detailed evaluations in this vein as are required by NEPA must and will be performed as part of the full NEPA review at the construction permit stage. Consideration of need in the early site review is limited to an evaluation of whether there is a reasonable likelihood of a nuclear facility of a given size , being needed and cost justified relative to alternative types of generating capacity at some, not necessarily well specified, time in the future with a reasonable outer limit of time of aeed being 15 to 20 years.16/ PEC's
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approach, in its early site review application, with regard to need for power i cnd alternate energy sources is fully consistent with the need for power svaluation that is intended in the early site review process. In view of l
---15/
Early Site Reviews for Nuclear Power Facilities, NUREG-0180, May 1977, !
- p. A-VIII-1.
MI g. __ _ . . _ _ . _ _ _
I this and of the fact that the full need for power analysis required by NEPA will be performed prior to any NRC action that might authorize construction, the early site suitability review requested by PEC would not violate NEPA and SSECF's arguments to the contrary are without merit. In summary, NEPA neither precludes the adjudicatory early site review sought by PEC nor justifies, at this time, the termination of the early site review cs requested by SSECF in its Petition. III. Request for Certification to the Commission in its request for relief, SSECF asks that the Licensing Board " certify such iesues as this Board may deem necessary to the full Commission for review." (Petition, p.7). The request is apparently made pursuant to 10 CTR 52.718(1) which empowers the presiding officer, in his discretion, to certify questions to the Commission rr pursuant to 10 CFR 92.730(f) which authorizes the presid-ing officer to :efer rulings to the Com=ission. A party seeking certification under section 2.718(i) must, at a mini =um, catablish that a referral under 10 CFR 82.730(f) would be proper - i.e. that a failure to resolve the issue in question will cause the public interest to cuffer or will result in unusual expense or delay. Puerto Rico k'ater Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-361, 4 NRC 625 (1976); Toledo Edison Company (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 759 (1975); Public Service Co. of New Hampshire (Seabrook Station, Units 1&2), ALAB-271, 1 NRC 478, 483 (1975). In addition, section V(f)(4) of Appendix A to 10 CFR Part 2 states that: [a] question may be certified to the Commission or to the Appeal Board, as appropriate, for determination when a major or novel question of policy, law or procedure is involved which cannot be
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resolved except by the Commission or the Appeal Board and when the prompt and final decision of the question is important for the protection of the public' interest or to avoid undue delay or , serious prejudice to the interest of a party .... This guidance from Appendix A serves to illustrate the Commission's general policy that a Licensing Board's power to certify a question to the Commission 10 to be exercised sparingly. Against this background, it is clear that SSECF has wholly failed to demon-
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strate that certification or referral to the Commission is warranted. There
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is no showing of any kind that certification is necessary to protect the public interest or prevent unusual expense or delay. Indeed, there is not
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even an allegation to this effect. Consequently, it is the Staff's view that, with the current absence of any demonstrated need for certification or referral to the Commission, SSECF's request for certification cannot be granted. IV. Conclusion For the reasons set forth above (1) A ruling on SSECF's Petition to terminate PEC's application for an early site review should be deferred until completion of the Staff's detailed review or, in the event that the Petition is considered on its merits, it should be denied without prejudice to any later motion filed pursuant to 10 CFR 82.605(b) after the Staff's detailed review is com-pleted.
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(?) SSECF's request that the matter be certified, in whole or in part, to the Commission should be denied. Respectfully submitted,
. ;%f f 'liQC
. !4Lc J sep t'R.l Gray oun el for N C y aff Dated at Bethesda, Maryland this 4th day of June, 1979
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! UNITLD STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-463
) 50-464 (Fulton Generating Station. ) , Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPGNSE TO SAVE SOLANCO ENVIRONMENT CONSERVATION FUND'S PETITION TO TERMINATE DOCKET AND EARLY REVIEW OF SITE SUITABILITY" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 4th day of June, 1979: Mr. Hugh K. Clark, Chairman Eugene J. Bradley, Esq. P.O. Box 127A Philadelphia Electric Company Rennedyville, Maryland 21645 2301 Market Street Philadelphia, Pennsylvania 19101 Dr. Donald P. deSylva Associate Professor of Marine Dr. A. Dixon Callihan Science Union Carbide Corporation Rosentiel School of Marine and P.O. Box Y Atmospheric Science Oak Ridge, Tennessee 37830 University of Miami Miami, Florida 33149 Donald P. Irwin, Esq. Michael W. Maupin, Esq. Mr. Gustave A. Linenberger* George C. Freeman, Jr., Esq. Atomic Safety and Licensing Board Hunton & Williams U.S. Nuclear Regulatory Commission P. O. Box 1535 Washington, D.C. 20555 Richmond, Virginia 23212 Lawrence Sager, Esq. W. Jeffrey Sidebottom, Esq. Sager & Sager Associates Barley, Snyder, Cooper & Barber 45 High Street 115 East King Street Pottstown, Pennsylvania 19464 Lancaster, Pennsylvania 17602 York Committee for a Safe Gilbert G. Malone, Esq. Environment Ports, Beers, Feldmann & Malone Dr. Chauncey R. Kapford 145 East Market Street 433 Orlando Avenue York, Pennsylvania 17401 State College, Pennsf1 vania 16801
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, l Theodore A. Adler, Deputy Atomic Safety and Licensing Attorney General Board Panel
- l Pennsylvania Department of U.S. Nuclear Regulatory Commission l Justice Washington, D. C. 20555 Room 25 K
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Harrisburg, Pennsylvania 17120 . Atomic Safety and Licensing Appeal Panel (5)* Edward F. Lawson, Esq. U.S. Nuclear Regulatory Commission Special Assistant Attorney General Washington, D.C. 20555 Department of Natural Resources Tawes State Office Building Docketing and Service Section (4)* Annapolis, Maryland 21401 Office of the Secretary U.S. Nucicar Regulatory Commission Executive Director Washington, DC 20555 Susquehanna River Basin Commission 1721 N. Front Street Harrisburg, PA 17102 Ufb IW fJsep)dR. Gray v/ ounsel for NRC Staf
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#f h7 E NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555
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o JUN 2 51980 Docket Nos. 50-463 and 50-464 Philadelphia Electric Company ATTN: Mr. J. L. Everett, President 2301 Market Street Philadelphia, Pennsylvania 19101 Gentimen: On December 29, 1978, the application of Philadelphia Electric Company to construct a nuclear power plant at the Fulton Site was amended to seek only an adjudicatory early site suitability review. The NRC staff considered the amended application and informally advised Mr. George Hunger of your staff early in 1979 that the application was not acceptable to docket because of deficiencies in the discussion of alternative sites and thus the staff did not initiate a detailed review. In order for your application for an early site review to be acceptable for docketing, the discussion of alternative sites should be expanded in accordance with the new guidance set forth in the Proposed Rule on Alter-native Site Reviews (45 F.R. 24168, April 9,1980). The principal defect in the submittal is that the selected region of interest fails to meet diversity criteria as set forth in the rule. The staff also needs responses to other questions on alternative sites listed in the enclosure. In the event that you wish to pursue your early site suitability review application to docketing, we require that you provide responses to the questions concerning alternative sites provided in the enclosure. If you intend to pursue your application, please advise me of your schedule for submitting the required information. Sincerely,
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, .-y James ROMiller, Chief Standardirartion and Special
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- Projects Branch
,,/ Division of Licensing
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Office of Neulear Reactor Regulation
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Enclosure:
Questions cc: See attached sheet
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ENCLOSURE QUESTIONS REGARDING ALTERNATIVE SITES
- 1. According to the Proposed Rule, Section V, 3 (FR 45; 24168, April 9,1980),
the region of interest should be chosen so as to provide a diversity of water sources. This criterion could be met by expanding the proposed region of interest about 30 miles to the east and south to include the coastal areas of Delaware Bay and the Atlantic Ocean. Potential sites near these water sources should be included in the alternative site review.
- 2. The alternative site review should include consideration of placing additional reactor units at existing reactor sites, for example, at Hope Creek, Salem, Summit and Peach Bottom. Review tb;se alternatives according to the procedures described in the Proposed Ruia.
- 3. The discussion in the ESER of alternative sites along the Susquehanna is too brief to permit the staff to independently evaluate their candidacy.
These sites include Michael's Run, Peach Bottom, Broad Creek, Berkeley, Erb's Mill, Fishing Creek, Muddy Run and Conowingo Creek. More detail should be provided for each site, using all of the criteria listed in the Proposed Rule, Section VI, 2.
- 4. Explain why the transmission line corridor shown in Figure 9.2-2 of the ER passing near the Tohickon site and labelled, "To Branchburg Public Service Electric and Gas Co.", cannot be used for a plant at Tohickon or at other nearby possible alternative sites: New Hope and Washington's Crossing. How would this affect transmission costs?
- 5. Explain the problems of using make-up water for the Chester County or Ranch sites from the propcsed Mason-Dixon pipeline. Are there uncertain-ties regarding construction of the pipeline or possible use of the water?
- 6. For several potential sites (Seneca Point, Pine Forge, New Hope and Washington's Crossing), the discussions were conclusionary rather than evidentiary. Provide the detail according to all of the criteria listed in the Proposed Rule, Section VI, 2, backing up the conclusions drawn.
(For example, explain what is meant by " unsuitable topography", " extensive shoreline erosion", order of magnitude of "high" transmission costs, why the Schuylkill River is not a reliable water source for Pine Forge, and approximate dollar estimates of extra costs for the New Hope site.)
- 7. Explain why some of the alternative sites for the previously proposed Perryman nuclear plant (Evaluation of Alternative Sites - Perryman Early Site Review, NRC, November 1977) were not included in the consideration
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l i l . ( ' 2_ of alternative sites for the Fulton plant. Some of these sites are within the region of interest (See Figure A.5, Page A-9 of the Perrymanevaluation).
- 8. Provide updated information on the availability of the Bainbridge site for power plant development.
- 9. How does the Region of Interest selected by the applicant relate to the power pool region and electrical reliability council region with which the applicant is asspciated? Identify any deficient power areas within the region of interest.
- 10. Demonstrate, using available reconnaissance level information in accordance with the guidance in the Proposed Rule, why the 49 pond-lake sites were eliminated as candidate sites.
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Secretary to the Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Re: Proposed Amencment to 10 C.F.R. Part'170 (4 5 Fed. Reg. 74493 (1980))
Dear Sir:
In response to the November 10, 1980, Federal Register notice (45 Fed. Reg. 74492), we submit the attached comments on the Commission's proposed " interpretative rule" concerning 10 C.F.R. Part 170. The comments are submitted on behalf of Alabama Power Company, Delmarva Power & Light Company, The Detroit Edison Company, New England Power Company, New York State Electric & Gas Corporation, Northeast Utilities Company, Ohio Edison Company, Omaha Public Power District, Philadelphia Electric Company, Power Authority of the State of New York, Potomac Electric Power Company, Public Service Electric
& Gas Company, San Diego Gas & Electric Company, The Toledo Edison Company, and Wisconsin Electric Power Company.
Veru truly yours, s
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s,. O, .( .'..G , Gerald Charnoff
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Gncl _ _ ,
1 l December 8, 1980
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COMMENTS ON PROPOSED AMENDMENT TO 10 C.F.R. PART 170 I. INTRODUCTION In the November 10, 1980 Federal Register, the Nuclear Regulatory Commission published for comment a proposed " inter-pretative rule" concerning 10 C.F.R. Part 170. 45 Fed. Reg. 74493 (1980). The Federal Register notice states that the purpose of the proposed rule is to clarify that fees for review will be charged, as appropriate, when review of an , application is completed, whether by issuance of a permit, license or other approval, or by denial or withdrawal of an application, or by any other event that brings active Commission review of the application to an end. The notice further states that the proposed new language "merely restates what the Commission's rule has been on collecting fees for withdrawn or otherwise terminated appli-cations since the promulgation of revisions to 10 C.F.R. Part 170 ( 4 3 FR 7 418 ) " . 45 Fed. Reg. at 74494 (1930). According to the notice, this so-called " clarifying language" is to be applied to all license applications on file with the Commission on or after March 23, 1978, the effective date of the current fee regulations. ____.
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l On behalf of Alabama Power Company, Delmarva Power & Light Company, The Detroit Edison Company, New England Power Company, New York State Electric & Gas Corporation, Northeast Utilities Company, Ohio Edison Company, Omaha Public Power District, Philadelphia Electric Company, Power Authority of the State of New York, Potomac Electric Power Company, Public Service Electric & Gas Company, San Diego Gas & Electric Company, The Toledo Edison Company and Wisconsin Electric Power Company, we submit the following comments on the proposed rule. The comments address the fee rule as it applies to power reactors, although the principles are, we believe, generally applicable. We submit that the current rule, which has been in effect since March 23, 1978, cannot reasonably be interpreted to authorize the imposition of fees (beyond the initial appli-cation fee itself) for power reactor applications that are withdrawn. As shown below, it is undisputed that the fee regulations in effect before March 23, 1978, did not contemplate assessment of fees, other than the initial application fee, on withdrawn applications.1 There is nothing in the language or administra-tive history of the 1978 rule to suggest that the Commission intended any change in this policy. To the contrary, it 1 An application presumably is considered " withdrawn" for fee purposes whenever the applicant formally expresses an intent to withdraw its application, even though the withdrawal may require some action by the Commission to be " effective."
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appears that in promulgating the 1978 fee regulations, the Commission considered the problem of withdrawn applications and deliberately chose to adhere to the previous practice of retaining the initial application fee but charging no other , license fee when an application is withdrawn. Accordingly, the Commission's proposed amendment to Part 170 is f ar from a simple " interpretation" or " clarification" of the current fee rules. Rather, it is a substant.ive amendment by which the Commission for the first time seeks to impose license fees on withdrawn applications. Finally, we believe that the Commission's attempt to apply the new amendment retroactively to all applications pending on or after March 23, 1978, constitutes impermissible, unauthorized and inequitable agency
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II. THE CURRENT NRC REGULATIONS DO NOT AUTHORIZE ADDITIONAL FEES FOR WITHDRAWN APPLIC ATIONS A. The Statutorv Framework The statutory basis for the imposition of application and license fees by the NRC is found in Title V of the Independent Offices Appropriation Act of 1952, 31 U.S.C. S 483a (1976) ("IOAA"), which sets forth a general grant of authority to federal agencies to prescribe "by regulation" appropriate and fair fees, charges and prices for work performed and services , rendered. The IOAA does not itself set or require fee sched-ules. Thus, if a particular agency f ails to include certain
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fees or charges in its implementing regulations, those fees cannot be collected. Indeed, this point weighed heavily in the Court of Claims' recent decision in Alyeska Pipeline Service Co. v. United States 624 F.2d 1005, 1009 (Ct. C1. 1980), wherein it was stated: The general rule applicable to all agencies, as provided in the Independent Offices Appropriation Act, 31 U.S.C. 483a (1976), is that the government may obtain reimbursement of its expenses in issuing licenses or permits only pursuant to authorizing regulations. (emphasis added) Accordingly, the Commission is without statutory authority to collect fees on withdrawn applications unless its regulations specifically authorize such fees.
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B. History of the NRC's Fee Regulations Turning to the NRC's current implementing regulations under the IOAA, 10 C.F.R. Part 170, we find no legitimate basis for the Commission's contention that provision has been made therein, either directly or by fair inference, for the payment of fees (other than the application fee) for NRC review of applications that are withdrawn before issuance of the license or permit. Indeed, the very Staff paper that recommended the proposed " interpretative rule" openly acknowledged that "Part 170 does not explicitly state that a fee for review will be charged on the withdrawal of an application."2 The reason why 2 Fees for Withdrawn Applications for Power Reactor Con-struction Permits, Operating Licenses, and Other Approvals __ _ -
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no such provision was included in the regulation is readily explainable: in a word, Part 170 already contained a mechanism
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for handling the costs associated with agency review of applications that are subsequently withdrawn. Since fee regulations were first proposed by the Commission in 1967, the Commission has required a fee payment by the applicant upon the filing of the construction permit application. While this application fee was at first elatively modest, it was es-calated in the early 1970's to a substantial amount.3 From the start, Part 170 has made this initial application fee a non-refundable obligation, even if the application were subse-quently withdrawn. Thus. S 170.12(a) as originally proposed in 1967, provided: ' All application fees will be charged irrespective of the Commission's disposition of the application or a withdrawal of the application. 32 Fed. Reg. at 3997 (1967) (emphasis added). This language has remained in the fee regulation ever since. See 43 Fed. Reg. at 7218 (1978). (continued) or Reviews, SECY-80-364 (August 4, 1980). At most, SECY 364 argues that the imposition of such fees is not inconsis-tent with fee guidelines approved by the Commission and the Court of Appeals in Mississippi Power & Light Co. v. NRC, 601 F.2d 223 (5th Cir. 1979), cert. denied, 444 U.S. 1102 (1980), and is " analogous" to fees imposed by 5 170.21 for "special projects and reviews." SECY-80-364 at 3. 3 The application fee for power reactors was first proposed at S2,500 (32 Fed. Reg. 3995, 3997 (1967)). It was increased to $25,000 (36 Fed. Reg. 145, 146 (1971)), then to $70,000 (37 Fed. Reg. 8074, 8075 (1972)), and finally to S125,000 (38 Fed. Reg. 18443 (1973)).
The purpose of the non-refundabir application fee is obvious. It is to receive "up front" a substantial sum so that if an application were withdrawn, the Commission's review effort to the date of withdrawal would not go entirely uncom-pensated. The Commission itself so stated in the 1977 proposed regulations which preceded promulgation of the current regula-tions in 1978. There, the Commission described in detail the development of its fees, explaining the purpose of the appli-cation fee for power reactors in the following terms:
.The application fee is part of the con-struction permit fee moved up front so that when_ applications for nuclear power plants are withdrawn, cancelled or denied, the Commission will recover part of its review Costs.
42 Fed. Reg . at 22159 (1977) (emphasis added).4 In light of this explicit acknowledgement by the Commission of the mechanism in the proposed rule for dealing with the review costs of withdrawn applications, any change thereafter in the Commission's fee requirements for such applications should have been set forth in its implementing regulations clearly and unambiguously. We have searched in vain for any indication that the Commission has altered its position in this regard since 1977.5 Our search even included a request under the 4 It is noteworthy that this language was not called to the Commission's attention in SECY-80-364. Nor is it acknowledged in the November 10, 1980 Federal Register notice. It may be that those who prepared SECY-80-364 were not aware of this language when SECY-80-364 was issued. 5 In fact, the 1978 Fe$eral Register notice adopting the current fee regulations refers back to the 1977 notice for
Frocdca of Infornation Act, 5 U.S.C. S 552 (1976), for c11 documents that supported the Commission's assertion that it intended in promulgating the 1978 rule to assess fees for withdrawn applications (beyond the initial application fee). The Commission's response to this request was that it had "[nlo records. 6 A review of the recent history of the fee regulation is illuminating. The 1977 proposed revision to Part 170 was the subject of extensive public comment. An examination of these comments reveals that no one took issue with the Commission's decision to continue to use the initial application fee as the mechanism for recovering costs of withdrawn applications. Nor , did anyone so much as indicate that Commission policy on this point might for come reason be susceptible to another " inter-pretation" that could perhaps permit a different fee arrangement with respect to applications that were withdrawn, denied, suspended or postponed. Moreover at a public meeting to explain the 1977 proposals, the NRC Staff further reinforced the understanding that no change was intended by stating that fees for construction permits and operating licenses would be collected "on the same basis as we have in the past" .7 (continuec) its description of the fee computation method and the NRC's fee guidelines. 43 Fed. Reg. at 7211 (1978). 6 See Letter from Jay E. Silberg to Director, Office of Administration, dated October 30, 1980 (Item 9) and NRC FOIA Response 80-536 (letter from J. M. Felton, Director, Division of Rules and Regulations, to Jay E. Silberg, dated November 21, 1980, Appendix, Category 9). 7 Public Meeting to Review the Proposed Schedule of Fees, Guidelines and Method of Computation (May 12, 1977), Transcript at 21.
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The significance of this reaffirmation of the NRC's past practice should not be lightly dismissed. In 1974, following the Supreme Court decisions in National Cable Television Ass'n
- v. United States, 415 U.S. 336 (1974), and FPC v. New England Power Co., 415 U.S. 345 (1974), the NRC proposed a radical revision to its existing fee schedules and structures. One of the major departures proposed at that time was to provide that fees for construction permits and operating licenses would be payable in three equal installments as the Regulatory Staff processes the application. This amendment would eliminate the current procedure of collecting such fees only at the time the permit or license is issued.
39 Fed. Reg. 39734 (1974). Pursuant to this proposal, the , first installment would be paid 6 months after the application was filed, the second 12 months after filing, and the third either 18 months after filing or at the time the license was issued, whichever is sooner. This " pay-as-you-go" scheme would clearly have required applicants to submit periodic payments with respect to costs incurred during the review process whether a license issued after completion of the NRC review or the review terminated prematura1y by virtue of an applicant's decision to withdraw. Significantly, however, following consideration of this 1974 proposal, the Commission elected not to adopt the fee install-ment procedure, but to retain the payment scheme based on an
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initial non-refundable deposit and a subsequent fee payment on issuance of a permit or license. Thus, the 1974 proposal was superseded'by the 1977 proposal when the Commission determined to proceed "on the same basis [as) in the past" (note 7, suora). C. Promulgation of the Current Regulations in 1978 Changes were made to the 1977 proposals when the revised fee schedules were promulgated in 1978. Contrary to what seems to be implied in SECY-80-364, these modifications had nothing to do with the assessment of additional fees for withdrawn applications. The existing requirement in S 170.12(a) for a
- non-refundable payment by each applicant on filing its appli-cation " irrespective of the Commission's disposition of the application or a withdrawal of the applic& tion" remained untouched without any indication that its essential purposes, as earlier described by the Commission, had changed in any respect. What the Commission did change by the 1978 amendments to Part 170 was an entirely separate part of the fee regulation
-- one dealing not with recovering any additional costs of processing withdrawn applications, but rather with assuring that the fees for completed reviews would not exceed the incurred costs and with the timing of fee payment for construc-tion permits and operating licenses.
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_- Under the 1977 proposal, the fees for construction permits and operating licenses were payable when the permit or license was issued.8 In 1978, the Commission revised this payment requirement so that the obligation no longer came due, as a matter of regulation, on issuance of the license, but instead was tied to " notification by the Commission when review of the project is completed." The new language read as follows: Fees for construction permits, operating licenses, and materials licenses, are payable upon notifi-cation by the Commission when review of the project is completed. 10 C.F.R. S 170.12(b), 43 Fed. Reg. at 7218-7219 (1978). A similar provision was also added in 1978 to footnote 3 to the Schedule of Facility Fees: When review of the permit, license, approval or amendment is complete, the expenditures for professional manpower and appropriate support services will be determined and the resultant fee assessed, but in no event will the fee exceed that 8 10 C.F.R. 5 170.12(b), as embodied in the 1977 proposal, provided: Fees for construction permits and operating licenses are payable when the construction permit or operating license is issued. No construction permit or operating license will be issued by the Commission until the full amount of the fee prescribed in this part has been paid. Similar language had existed since the original fee regulations. 32 Fed. Reg. at 3997 (1967).
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shown in the schedule of facility fees. footnote 3 (43 Fed. Reg. at 7220). 10 C.F.R. 5 170.21, SECY-80-364 now argues that upon the withdrawal of an application, the NRC Staff review "is complete" and fees for can then be the review accomplished prior to this " completion" in the language of assessed. This argument finds no support the 1978 amendment or in the Commission's explanation of its actions. The changes in S 179.12(b) and footnote 3 to 5 170.21 were not brought about to deal with withdrawn applications. a change in the overall Rather, they were intended to reflect facility fees concept. Prior to the 1978 revisions, the amount of fees to be paid by an applicant on issuance of a permit or license 'was a flat amount specified in the Schedule of Facility Fees that bore no necessary correlation to the actual costs associated with full agency review of the particular appli-cation.9 The new system adopted in 1978 was to be far more Under the 1978 revisions, after all sensitive to actual costs. the Staff work had been completed on a particular application, Staff was to determine the review costs actually incurred in that proceeding. The amount was then to be assessed up to the maximum amount specified in the f ee schedule. the In moving to this more precise case-by-case analysis, Commission was responding to public comments that the proposed 9 See, e.g., S 170.21 (38 Fed . Reg . at 18443 (1973)).
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1977 regulations "fai1[ed] to provide an incentive for industry to standardize and, in fact, may serve as a disincentive." 43 Fed. Reg. at 7213 (1978). This was cause for concern to the Commission because of its stated belief that the coct of licensing reviews would decrease as industry standardization increased. Its 1978 revisions therefore were designed to encourage such standardization by providing a mechanism for a corresponding decrease in fees as actual costs decreased and by setting a ceiling on the maximum assessment that could be made. 43 Fed. Reg . at 7 214. Thus, the first (and presumably most significant) change from the 1977 proposals, as described in the 1978 Federal Register notice, was the following: CHANGES INCORPORATED IN FINAL RULE 1. The schedule of facility fees has been revised to provide that charges for construction permits, operating licenses, facility manufacturing licenses, review of stand-ardized reference designs filed by vendors and architect-engineers, and topical report reviews will be based on the expenditures for professional manpower and appropriate support services required to process the application or request. Such charges will not exceed the fees shown in S 170.21. 43 Fed. Reg. at 7216.
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Since the fee under the new rule was to be based on actual review costs, it was obviously no longer possible to collect a flat sem automatically upon issuance of a construction permit or an operating license. Rather, an opportunity had to be pro-vided for the Commission to calculate the actual costs after all review work had been completed. Thus, S 170.12(b) was __ . _ _ _ _ __ -. . . -_- _
changed so that construction permit and operating license fees were payable "upon notification by the Commission when the re-view of the project is completed." This new language in S 170.12(b), which was also added to footnote 3 of 5 170.21, had nothing to do with the separate issue of fee payments on withdrawal of an application, but was simply designed to accommodate the new requirement for calculating fees based on actual costs.10 Indeed, this is how the Commission itself described the amendment to S 170.12(b): The regulation in 5 170.12 concerning the remittance of fees by applicants and licensees has been revised in its entirety to accommodate the amended rule. 43 Fed. Reg. at 7216. Surely if the new language of S 170.12(b) had been intended as a policy change on the fee treatment of withdrawn applications, a more precise description of its intended effect would have been required.11 10 The historical development of Part 170 clearly supports this analysis. In the 1977 proposal, the concept of fee payment upon completion of the NRC review appeared for repro-cessing facilities. S 170.21, fn. 7, 42 Fed. Reg. at 22163 (1977). The explanation for this provision was the uncertainty of the review costs. 42 Fed. Reg. at 22161 (1977). Since the Commission acknow13dges that the 1977 proposal did not permit assessment of fees for withdrawn applications, 45 Fed. Reg. at 74494, the payment on completion language, which also appeared in 1977, cannot support such an assessment. 11 The statement accompanying a promulgated rule must iden-tify the major policy issues ventilated and why the agency reacted to them as it did. National Ind. Sand Ass'n v. Marshall, 601 F.2d 689, 716 (3d Cir. 1979). Moreover, if the NRC had attempted in 1978 to deal with fees for withdrawn
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Since the Commission did not attach any great significance , to the new language of 5 170.12(b), and certainly was totally silent on any implication that the change might have on the question of fees for withdrawn applications, the Commission cannot now argue that in 1978 it intentionally changed the groundrules for such fees. Indeed, the fact is that even the 1978 version of 5 170.12(b) continues to refer to " fees for construction permits, operating licenses, manuf acturing licenses, and materials licenses." This is hardly a basis for arguing that 5 170.12(b) as of 1978 was intended to authorize fees in cases where no license or permit was issued. The courts have rejected similar after-the-fact " interpretations" by administrative agencies. For example, in Standard Oil Co.
- v. Depar tment of Enerav, 596 F.2d 1029 (Em. App. 1978), the court rejected an interpretation of Federal Energy Administration regulations based on FEA's uncommunicated intent:
! In fairness to the regulated, the provi-sions of the regulation should not be deemed to include what the administrator, exercising his delegated power, might have covered but did not cover. (continued) applic4tions on a different basis than that proposed in 1977, it would likely have been invalid. Where a rule as finally issued is substantially different from that proposed and the difference was not discussed in the rulemaking proceeding, the courts have held that the opportunity for public comment was denied and have invalidated the rule. See, e.g., American Frozen Foods Institute v. Train, 539 F.2d 107 (D.C. Cir. 1976); Wagner Electric Corp. v. Volpe, 466 F.2d 1013 (3d Cir. 1972).
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596 F.2d at 1064, quoting Tobin v. Edward S. Wagner Co., 187 F.2d 977 (2d Cir. 1951) (Frank, J.). The court went on to hold that it will not cure that defect by parroting the strained post hoc " interpretation" which the agency expressed for the first time on February 1, 1976. 596 F.2d at 1064, quoting Standard Oil Co. v. Federal Energy Administration, 453 F. Supp. 203, 245-46 (N.D. Ohio 1978). We believe that the " interpretative rule" at issue here is subject to the same infirmity. D. Explicit Treatment of With-drawal in Other Fee Contexts Another point that substantially undermines the Commission's "af ter-the-f act" interpretation of its fee regulations deserves special mention. Part 170 is not totally silent with respect to the matter of withdrawn applications; where the NRC felt that it was important to deal with the consequences of a withdrawn application in Part 170, it did so explicitly. For example , S 170.12(a) clearly states that the initial application fee will not be refunded upon "a withdrawal of the application." The NRC thus demonstrated that it was fully aware of the possibility of withdrawn applications when it promulgated Part 170. If the Commission really intended in l 1978 to assess additional license fees on withdrawn appli-cations, it could have and would have said so explicitly in
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5 170.12(b). The explicit treatment given to withdrawn applications in certain parts of the regulation argues forcefully against implying other consequences of withdrawal where not explicitly addressed. This is particularly so where the Commission has provided detailed regulatory treatment of withdrawn applications in other contexts. For example , 10 C.F.R. 5 2.107 spells out the procedures for withdrawing an application, once again showing that when the Commission wanted to deal with withdrawn applications, it knew how to do so and did so explicitly. An equally telling example appears in footnote 4 to S 170.21, which deals with fees for "special projects and reviews", such as early site reviews. A site that is the subject of an early site review may simultaneously be the subject of a construction permit application. Footnote 4 did not appear in the 1977 propesal, but was added in the 1978 rule as finally promulgated in order to address the license fee implications of this double application situation.12 7t provides as follows: , Where a fee has been paid for a facility early site review, the charge will be deducted from the fee for a construction permit issued for that site. A separate charge will not be assessed for a site review where the person requesting the review has an application for a construc-tion permit on file for the same site, 12 Indeed, footnote 4 was the only language dealing with withdrawn applications that was added to Part 170 in 1978.
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except where the application is withdrawn by the applicant or denied by the Commission. (emphasis added) Footnote 4 is based on the premise that the fee for a site review will ordinarily be included in the construction permit fee. The final "except" clause is necessary so that the early site review fee can be collected separately in the event that the construction permit application is withdrawn and no construction permit fee can be charged.13 However, if the Commission is correct in its " interpretation" here -- that the current regulations were always intended to require payment of license fees on withdrawn construction permit applications -- then the "except" clause in footnote 4 would be rendered totally meaningless and redundant. This is so because the . construction permit fee still would be payable despite with-drawal and would include the costs of the NRC review of the site portion of the application. In short, there would be no need for a special proviso to ensure collection of the site review fee upon withdrawal of the construction permit appli-cation. Furthermore, when the Commission's new " inter-pretation" is applied together with a literal reading of the "except" clause in footnote 4, it appears that the Commission 13 Of course, no fee would be payable for an early site re-view, even if completed, where a complete application was filed prior to the effective date of the 1978 regulations. The Commission specifically exempted such applications from payment of fees. See 43 Fed. Reg. 7214-15. In no event should or can the Commission's new " interpretative rule" alter this exemption granted in 1978.
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technically could collect a separate site review fee in addition to a fee on the withdrawn construction permit appli-cation. This obviously would result in an illegal double , recovery by the Commission. Accordingly, the argument that in 1978 the Commission intended to charge fees on withdrawn applications can be made only if one is prepared to assume that the Commission de-liberately inserted in footnote 4 a redundant and unnecessary clause that could yield an illegal double fee recovery by the Commission. Such irrational regulatory behavior cannot properly be attributed to an administrative agency. To the contrary, the only logical conclusion is that the Commission would not have included the "except" clause in footnote 4 if it truly intended in 1978 that fees could be charged on withdrawn construction permit applications. Yet the Commission did add the "except" clause to the final rule in 1978, which plainly demonstrates that the Commission expressly considered the problem of withdrawn applications and chose to adhere to the prior practice of charging no fee for withdrawn applications other than the initial application filing fee. E. The NRC's Fee Guidelines Similarly, the fee guidelines approved by the Commission and by the Court of Appeals ir. Mississippi Power & Light Co. v. NRC, 601 F.2d 223 (5th Cir. 1979), cert. denied, 444 U.S. 1102
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(1980), provide no support for the Commission's current position. There are two obvious reasons for reaching such a conclusion. First, the guidelines are not themselves regula-tions. Rather than setting forth rules or directives that must
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be adhered to, they attempt to define the outer limits of permissible agency conduct. This is clearly reflected in the Commission's own description of the fee guidelines as a means to " determine whether or not the Commission may charge a fee for a particular service and what the maximum fee may be." 40 Fo d ,. Reg. at 7211 (emphasis added). It is, however, the , regulations promulgated under IOAA -- and those regulations alone -- which determine what agency charges can be made (see pp. 3-4 supra). Thus, small com .t is to be derived from the f act that the NRC guidelines ar'guably go f arther than the regulations permit. For, if a fee assessment on withdrawal is not covered by the regulations, it cannot be incorporated therein by inference merely because it may come within the broader confines of the guidelines. The second reason why the guidelines are not pertinent here is that the guidelines were formulated prior to the time when the Commission now claims it first manifested an intent to assess additional fees on withdrawn applications. 7.ccording to the November 10, 1980 Federal Register notice, the Commission's so-called " rule" that fees were to be assessed for the review costs of withdrawn applications came into existence in February, 1978: _ -
[T]he new language [ proposed in the November 10, 1980 notice] merely restates what the
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Commission's rule has been on collecting fees for withdrawn or otherwise terminated applica-tions since the promulgation of revisions to 10 CFR Part 170 (43 FR 7418) . . . 45 Fed. Reg. at 74494 (emphasis added). Yet the guidelines appeared in essentially their current form in the 1977 proposed rulemaking.14 See 43 Fed. Reg. at 7211. Since even the Commission does not appear to be asserting that the 1977 proposed revisions to Part 170 would have authorized license fees for the review of withdrawn applications 15 , the guidelines can provide no independent basis for interpreting the regula-tions to inc1'ude additional license fees for withdrawn appli-cations. III. THE NRC'S INTERPRETATION WOULD PERMIT AN IMPERMISSIBLE RETROACTIVE FEE ASSESSMENT The Commission's proposed amendment to Part 170 would by its terms apply retroactively to "all applications for 14 Although there are very minor dif ferences in the word-ing between the 1977 and 1978 versions of the guidelines, these differences do not appear significant to the issue at hand. Nor were the differences important enough to be discussed by the Commission in the Federal Register statement accompanying the 1978 rules. 15 This is because the 1977 proposal was still structured in terms of fee payment upon license issuance (S 170.12(b), 42 Fed. Reg. at 22162) and because of the explicit language quoted above that the non-refundable application fee was intended as the mechanism for dealing with the review costs for withdrawn applications.
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i licenses, permits, approvals or requests for review of special projects on file with the Commission on or after March 23, 1978". Such retroactive application of the amendment would impose a severe hardship on large numbers of applicants in a manner that is wholly improper and invalid.16 As noted above, neither the 1978 fee regulations nor the earlier versions of Part 170 could reasonably have been understood to require payment of license fees on withdrawn applications in addition to the initial application fee. Utilities have heretofore proceeded on the justifiable assump-tion that no such withdrawal fee was contemplated, and thus they have not taken withdrawal fees into consideration as events in recent years have prompted a reevaluation of power
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generation plans. Now, for the first time, the Commission is attempting to assess fees under the new proposal that could have been avoided if the application on file had been withdrawn prior to March 23, 1978. According to the " interpretative rule", substantial monetary charges will now be imposed retroactively for costs associated with agency reviews that 16 The Commission has characterized the proposed revision of Part 170 as simply " interpretative" or " clarifying," rather than a substantive amendment to the regulations. As shown above, this characterization will not withstand scrutiny. In any event, however the revision is characterized, the analysis of its retroactive impact remains the same, and the courts will not hesitate to invalidate a retroactive rule merely because the agency has labeled it " in te r pr e t a tiv e . " See, e.g., Runnells v. Andrus, 484 F. Supp. 1234 (D. Utah 1980) (retroactive agency " interpretation" of regulation invalid). . 1
! occurred not only prior to the effective date of the current proposal, but also well before the March 23, 1978 date. This fundamental unfairners renders the Commission's proposed amendment arbitrary and unreasonable under the Administrative Procedure Act, 5 U.S.C. S 706 (1976), and invalid under the well-established limitations on an administrative agency's power'to enforce retroactive regulations. Ir[ the leading case of SEC v. Chenery Corp. , 332 U.S. 194 (1947), the Supreme Court held that administrative rules may be applied retroactively only if "the ill ef fect of the retroac-tive application" is outweighed by the need to avoid some
" mischief" that is " contrary to a statutory design or to legal 332 U.S. at 203. Accord, Retail, and equitable principles."
Wholesale & Department Store Union v. NLRB, 466 F.2d 380, 389-90 (D.C. Cir. 1972). Judge Friendly's opinion in NLRB v. Majestic Weaving Co., 335 F.2d 854 (2d Cir. 1966), is one of the most widely quoted applications of the " balancing" approach outlined in Chenery. In Majestic Weaving, the court was highly critical of the Board's attempt to apply a rule retroactively: Although courts have not generally balked at allowing administrative agencies to apply a rule newly f ashioned in an adjudicative proceeding to past conduct, a decision branding as "unf air" conduct stamped "f air" at the time a party acted, raises judicial hackles considerably more than a determination that merely brings within the agency's jurisdiction an employer previously left without, see NLRB v. Pease Oil Co., 279 F.2d 135, 137-139 (2 Cir. 1960), or shortens the period in which a collective bargaining agreement may bar a new election, see Leedom
- v. International Bhd . o f* Elec. Wo rke rs , 107
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U.S. App.D.C. 357, 278 F.2d 237, 243 (1960), or imposes a more severe remedy for conduct already prohibited, see NLRB v. A. P. W. Prods. Co., supra.
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And the hackles bristle still more when a financial penalty is assessed for action that might well have been avoided if the agency's changed disposition had been earlier made known, or might even have been taken in express reliance on the standard previously established. 355 F.2d at 860 (emphasis added). This passage is fully applicable here. The Commission is attempting to assess a very large financial charge that the utilities could well have avoided if the Commission had made known En 1978 or earlier its new disposition to charge license fees on withdrawn applications. Such agency action has been regularly invalidated by the courts. As stated in Boston Edison Co. v. FPC, 557 F.2d 845 (D.C. Cir.), cert. denied, 434 U.S. 956 (1977): Although an administrative agency is not bound to rigid adherence to its precedents, it is equally essential that when it decides to reverse its course, it must give notice that
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the changed standard only to those actions taken by parties after the new standard has been proclaimed as in effect. 557 F.2d at 849 (emphasis added). Pursuant to this settled principle, the Commission may not change its fee rules by retroactive application to prior events; it must apply its new rule on withdrawn applications only prospectively as of the date it takes effect. This means that at most the Commission can properly assess license fees on withdrawn applications only for services -- assuming they
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qualify as special benefits within the meaning of the IOAA -- that an applicant requests or causes the Commission to perform after the effective date of the amendment. In addition, as the above passage from Boston Edison states, adequate notice must be given as to any change in the Commission's standards or rules. Obviously such notice is essential so that the persons being regulated can adjust their conduct in accordance with the regulatory changes. This concept of advance notice was virtually decisive in Public Service Co. v. And r u s , 433 F. Supp. 144 (D. Colo. 1977), a case decided on f acts highly similar to those involved here. In that case, the agency sought to increase its fees for processing and monitoring applications for rights-of-way across public lands. The regulation increasing the fees was published on April 23, 1975, but was effective only with respect to applications pending on June 3, 1975. The court sustained the rule against a retroactivity attack, but only because the applicants were warned in advance of the effective date of the regulation that if applications were pending on June 1, 1975 the applicant would become liable for proper costs of processing and monitoring. Cf . , N. L. R. B . v . Majestic Weaving Co., 355 F.2d 854, 860 (2d Cir. 1966). Plaintiffs had the option to withdraw their applications before June 1, 1975, but chose not to do so. 433 F. Supp. at 154 (emphasis added). A similar line of cases involves an HEW regulation calling for the reimbursement of accelerated depreciation payments .
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1 l previously made to Medicare providers. In each case the retroactive effect of the regulation was sustained principally l l because the regulation contained a six-month grace period
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during which the providers could withdraw from the Medicare program and avoid the depreciation recapture. Springdale convalescent Center v. Mathews, 545 F.2d 943, 956 (5th Cir. 1977); Hazelwood Chronic & Convalescent Hospital, Inc. v. i Weinberger, 543 F.2d 703, 708 (9th Cir. 1976), vacated on other
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grounds, 430 U.S. 952 (1977); Summit Nursing Home, Inc. v. l l _U_nited States, 572 F.2d 737, 744 (Ct. C1. 1978). i In stark contrast to these cases, the Commission has given i no advance warning that license fees would be assessed on withdrawn applications, and it has provided no grace period or other opportunity for withdrawal of applications prior to the effective date of the new rule. This is plainly not the sort of advance notice that the Boston Edison court had in mind or that would survive judicial scrutiny under the cases cited above. Under all the circumstances, it is clear that r etr oactive application of the Commission's proposed amendment to Part 170 will have -- in the words of the Chenerv opinion -- an "ill effect" on utilities and their customers that is substantial both in terms of the dollar amounts involved and in terms of the fundamental unf airness of ' disrupting settled expectations and attaching adverse consequences to actions after they have been taken. Balanced against this ill effect, there is no
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" mischief" that would result if the proposed amendment were limited te prospective operation. Certainly the statutory design of the ICAA does not necessitate retroactive applicatior of the proposed amendment. As shown above, the IOAA by its terms does not require collection of license fees on withdrawn applications.17 Indeed, the statute is more susceptible to the opposite interpretation -- that fees may not be collected when no license or permit is issued and the applicant has derived no special benefit from the Government. See FPC v. New Encland Power Co., 415 U.S. 345, 3'49-50 (1974). Moreover, as discussed above, the IOAA permits assessment of fees only pursuant to specific implementing regulations. Here, of course, there were no such regulations covering withdrawn applications during the pertinent periods. On this point, the recent decision of the Court of Claims in Alyeska Pipeline Service Co. v. United States, supra, provides con-siderable guidance. In Alveska, the Government sought to collect more than $12 million in fees for processing the 17 For example, no such requirement is imposed by agencies such as the Civil Aeronautics Board, Federal Aviation Admini-stration, Federal Communications Commission, Federal Energy Regulatory Commission, Federal Maritime Administration and Securities and Exchange Commission. Only one regulation has been found which calls for fees on withdrawn applications. 43 C.F.R. S 2802.1-2 (1979) (Bureau of Land Management). It is significant, however, that the Bureau of Land Management has statutory authority for its regulations independent of the IOAA namely, the Public Land Administration Act, 43 U.S.C. SS 1371, 1374 (1976), and the 1973 amendments to the Mineral Leasing Act, 87 Stat. 576, 579. See Public Service Co. v. Andrus, supra.
_. _ _ plaintiff's application to build the trans-Alaska oil pipeline. In 1975, the Interior Department adopted regulations that would have allowed imposition of such a fee. However, the Department had performed its services in connection with the pipeline application before 1975, at a time when the regulations provided for only a $10 application fee. The court held that
under the IOAA fees may be collected only for services rendered by the Government during a period when specific regulations authorizing the fees are in effect. Since the Interior Department's regulations were not adopted until after the work on the pipeline application had been completed, the assessment of a S12 million fee pursuant to those regulations was held invalid. The,Alyeska case demonstrates beyond doubt that the statutory design and purposec of the IOAA are not sufficient to call for retroactive application cf an agency's fee regula- ' tions. Certainly the court identified no " mischief" that would be avoided by such a retroactive application. Here, as in Alyeska, there were no regulations allowing assessment of license fees on withdrawn applications at the time the Commission performed its work on those applications, and therefore no such fees can properly be collected. In summary, we believe that the ill effects of applying the proposed amendment to Part 170 retroactively clearly outweigh any " mischief" that might be caused by applying the amendment prospectively only. Accordingly, under SEC v.
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Chenery Corp., the proposed amendment is invalid to the extent of its retroactive application. IV. CONCLUSION As the foregoing discussion demonstrates, the Commission's proposed amendment to Part 170 is not a simple " interpretation" of existing rules, but in fact constitutes a sharp departure from the Commission's long-standing policy of not assessing license fees on withdrawn applications other than the initial application fee. The 1978 rules made changes in the Commission's fee procedures, but nothing in the language or history of those i rules, or in the NRC's fee guidelines, suggested a change in the fee treatment of withdrawn applications. Rather, the 1978
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rules clearly carried forward the prior practice of retaining the initial application fee in the event of a withdrawn application, but charging no additional license fees. It is only now, with the proposed " interpretation" at issue here,
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that the Commission's regulations would assess additional license fees on withdrawn applications. This " interpretation is in' consistent with any reasonable analysis of the current regulation and its history. Finally, we believe that it would be both unfair and improper to apply this substantial policy change retroactively to actions taken in the past. Even assuming that the IOAA would permit the assessment of such fees for withdrawn appli-cations, at the most, the Commission can assess license fees on _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - _ _ _ _ _ _ )
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i withdrawn applications only in connection with services and benefits rendered by the Commission after the effective date of the proposed amendment. ~ i December 8, 1980. SHAW, PITTMAN, POTTS & TRCWBRIDGE 1800 M Street, N.W. Washington, D.C. 20036 j By: s kAA Gdrald Charnoff
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i UNITED STATES -.
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NUCLEAR REGULATORY COMMISSION ' W AsHIN GT ON, D. C. 20555 SECY-80-264 Aucust 4. 1930- _
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CONSENT CA!.ENDAR ITEM l h. For: The Commissioners .
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Daniel J. Donoghue, Director . Fren: Office of Administration (es
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William J. Dircks (
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Subject:
FEES FOR WITHDRAWN APPLICATIONS FOR POWER R STRUCTION PERMITS, OPERATING LICENSES, AND OTHER APPR
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OR REVIEWS Purcose: To secure Commission consent to a course of acticn to recover review costs. A minor policy mttter with no health or safety significance. Catecorv: Two recent withdrawals of construction permit applications Discussion: have highlighted a problem in the collection of fees for review of the applications.
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On December 19, 1978 Public Service Electric and (1) Gas Co. withdrew its construction permit applica-tion for Atlantic Generating Station, Units 1 and
- 2. The staff subsequently determined the actual costs to the agency for reviewing the appli:stion The actual costs were $1,236,a00 for these units. By letter of for Unit 1, and 57,100 for Unit 2.
- January 8,1980, the company was bit 1ed for
$737,100, representing for Unit 1, the maximum fee in 10 CFR 170.21(a) Schedule A.5.c. of $855,000, already plus $7,100 for Unit 2, less $125,000 received as an application fee. The ccmpany has refused to pay.
On December 17, 1979 New England Power Ccmpany filed (2) a " Motion of the Applicant to Withdraw their A pli-cation" with the Atomic Safety and Licensing Beard Panel and by order dated December 26, 1979, the Atomic Safety and Licensing Board dimissed the proceeding. New England Power was notified on January 25, 1980 that the Commission considered the The application for New England 1 and 2 withdrawn. staff subsequently determined the actual c:sts to the agency for reviewing the application fcr these units. The actual costs were 51,245,577 for Unit 1 .
Contact:
W. O. Miller 492-7225 or Robert L. Fonner 492-8692
_ The Commissioners
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t and $16,215 for I) nit 2. By letter of March 24, ; .' 1980, the company was billed for $827,815, re:)re- [ senting for Unit 1, the maximum fee in 10 CFR 170.21(a)A.3. of $936,600, plus $16,215 for Unit 2, less $125,000 already received as an application fee. To date the company has failed to pay the fee required by Part 170. In the case of withdrawn construction pemit appif ca-of 10 CFR tions, th billing is based upon the languaggj 10 CFR 170.12(b j and footnote 3 to 10 CFR 170.21.- 170.12(b , (e) and (f) also refer to fees as payable when, "the review of the project is completed." It is the staff's view that the regulation calls for billing whenever a review is brought to an end, whether by reason of issuance of a pemit, license, or other approval, by a denial of an application, or by its withdrawal . However, the matter is not without doubt. Part 170 does not explicitly state that a fee for gview will be charged on a wit'hdrawal of an application.- The interpretation of the regulations permitting such a charge is, however, a reasonable one, and if stated explicitly would be legal under Title V of the Independent Offices Appropriation Act of 1952 (31 U.S.C. 483a)(10AA) and decided cases upholding charges for government services rendered to applicants based upon cost to the agency. See e.o., Mississiooi Power and Licht v. NRC, 601 F.2d U.S. (1980),and 223 (1979), cert deniedIt_ is tne clearly established cases cited tnerein. policy under the 10AA that agencies are to collect fees for services rendered to the maximum extent allowed by law. JJ 10 CFR 170.12(b) reacs as follows: Fees for construction pemits, operating
"(b) License Fees.
licenses, manufacturing licenses, and materials licenses, are payable upon notification by the Commission when the review of the project is completed." Footnote 3 to 10 CFR 170.21, in pertinent nrt, reads as follows: 2f "When review of the pemit, license, approval, or amendment is complete, the expenditures for professional manpower and appropriate support services will be detemined and th that shown in the schedule of facility fees." In all cases where an application fee acccmpanying an application is 3f charged.10 CFR 170.12(a) authorizes retention of the total application fee paid in advance.
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The Commissioners
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Support for the staff reading of the regulations may be ll found also in the implementation policy under 10AA as i stated in the fee guidelines approved by the Commission and the Court of Appeals in Mississiooi power and Licht
- v. NRC, suora. The guidelines state that the review of an application on request is a service for which a charge may be made. In the guidelines a fee may be assessed for a service rendered at the request of an applicant whether or not those services are linked to the issuance of a permit or license. For example, the guidelines support the inclusion in the fee schedule of "special projects and reviews" that do not result in issuance of permits, licenses, or approvals but are yet subject to a fee for the service based upon actual cost to conduct the review. (10 CFR 170.21(b), Schedule F).
The review given a power reactor application that does not end in a permit or license is analogous to a special project with respect to the work performed and the service rendered to the applicant. The applicant has received a "special bene. fit" in the sense that he has received the review requested and required by law. Attachment A indicates the scope of the problem. It lists the number of withdrawn applications since March 23, 1978 (the effective date of the revised fee schedule), and the number of announced cancellations, suspensions or postponements that may eventually be withdrawn o denied. cations will exceed $3,000,000. The principal legal problem with trying to collect fees for work done on withdrawn applications is that the , current regulations do not make it totally explicit that charges will be assessed in these circumstances. In _Alyeska pioeline Service Co. , et al. v. U.S. (Ct. Cl. 18,1950), the U.S. Court of No. 384-78 decided June Claims recently held that the Secretary of the Interior lacked authority to recover licensing costs pursuant to the 10AA because the agency had not set out any regu-lations authorizing the fees. The court noted that the purpose of setting fees prospectively by regulations was to give applicants "the opportunity to be heard before the amount of reimbursement is fixed and advance notice of the expenses they will incurOnif boththeirtheapplication points the is granted." Slip Op. at 19. NRC is in a much better position than was the Secretary of the Interior. The NRC does have judicially approved
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The Commissioners
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i regulations on license fees prcmulgated after an exten- ;? sive rulemaking p.-oceeding in which licensees and poten- These [ tial applicants had ample opportunity to comment. regulations give applicants notice of the amount of reimbursement due when review of an application is completed. The Executive Legal Director is of the opinion that, even though success in a civil collection action is somewhat uncertain because of the ambiguity of the present regulation, the Commission's case is suffi-ciently credible to justify an effort to recover the fees, including civil action in the U.S. Courts if The General necessary. The General Counsel concurs. Counsel also believes that frcm a litigating strategy standpoint the first lawsuit, if necessary, should be to recover fees for a typical review, such as New England 1 and 2, rather than for Atlantic Generating Station, Units 1 and 2, which involved unusual features. The staff is of the opin' ion that 10 CFR Part 170 should be amended immediately by interpretative amendments to clarify the intention of 10 CFR 170.12, footnote 3 to the schedule of fees in section 170.21, and the parallel language in footnote 4 to the schedule in section 170.31. Attachment B is a proposed amendment to acccmplish this by amending 10 CFR 170.12(b), (e), and (f) to ind a project, and to indicate that the fee Included is for the are suspensions, review of the application. The purpose of
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postponements, withdrawals, and denials. the amendments is to state explicitly what staff and counsel believe to be the proper interpretation of Part 170.
- 1. Authorize the General Counsel to take action, if Recommendation: and when necessary, to recover the licensing review fees for denied, withdrawn, suspended, or postponed application reviews.
- 2. Approve the publication for comment in the Federal Reaister of the proposed amendment to 10 CFR Part 170. .
The Executive Legal Director, the General Counsel, and Coordination: the Directors, Office of Nuclear Reactor Regulation and Office of Nuclear Materials Safety and Safeguards concur.
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The Commissioners
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j Q c f y G u ~ fJUL2 9 ISED Daniel J. Donoghue Director, Office of Administration
Enclosures:
A - Tabulation of withdrawn, suspended, or indefinitely postponed reactor projects B - Notice of Proposed Rule Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Wednesday, Auoust 20, 1980. Cc= mission Staff Office comments, if any, should be subnitted to the Cor.nissicners WLT August 13, 1980, with an inforcation copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when cc=ments may be expected. This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of August 25, 1980. Please refer to the appropriate Weekly Commission Schedule, when published, for a spec,ific date and time. DISTRIBUTION Cor.=issioners Ccamission Staff Offices Exec Dir for Operations ACRS Secrete.. i at
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I EtiCLOSURE A
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OF fluCLEAR PLANTS Withdrawn Cases Since 3/23/78 Apolicable Fees
- 1. Atlantic 1/2 - Public Service Ele:. & Gas Co. - S 740,000 w/ drawn 12/19/78 l
- 2. fiEP 1/2 - fiew England Power Co. - 830,000 w/d rawn 12/17/79 .
- 3. Palo Verde 4/5 - Arizona Public Service - 550,000 w/ drawn 9/27/79 4 Erie 1/2 - Ohio Edison Company - 870,000 w/ drawn 1/23/S0
- 5. Haven 1/2 - Wisconsin Electric Pcwer Co.
w/ drawn 5/17/80 . Anncunced Cancellation, Suster.sion or Indefinite Postoonements
- 1. Barten 1, 2, 3 & 4 - Alabama Power & Light
- 2. Summit 1 & 2 - Delmarva Power & Light
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- 3. Blue Hills 1 &'2 - Gulf States Utilities :
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- 4. Douglas Point 1 & 2 - Potomac Electric Co. '[
- 5. Fulton 1 & 2 - Philadelphia Electric Co.
- 6. North Coast - PRWR Authority
- 7. Fcrt Calhoun 2 - Omaha Public Power District
- 8. Davis Besse 2 & 3 - Toledo Edison Company
- 9. Allens Creek 2 - Houston Power & Light Co.
- 10. Sundesert 1 & 2 - San Diego Gas & Electric Greene County - PASNY 11.
- 12. Greenwood 2 & 3 - Detroit Edison Co.
- 13. Clinch River - " Project Management Corp.1/
Montague 1 & 2 Northeast Nuclear Energy Co.1/ 1'. -
- 15. New Haven 1 & 2 - New York State Electric & GasII 1/ Inciucec on page 1-4 of NUREG-03SO as postponed indefinitely.
Note - Items 1-12 above were taken from page 1-10 of NUREG-03SO (Brown Book, Volume 4, April 25, 1980).
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- ATTACHMENT A
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- 1. Public Service Electric & Gas Co. , ;
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Atlantic 1 & 2 Review Began - November 1973 Review Ended - December 1978 Percent Review Comolete Safe ty 95% - The SER was issued in July 1977 and an ACRS subcommittee meeting has been held. Remaining work included full ACRS meeting, SER supplement and hearing.
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Environmental - Approximately 75% of the environmental review was com-ple te. DES issued October 1976. Soecial Studies Environmental Liquid Pathway Study was done
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Unusual Review Circumstances - NRR states that the review took longer than the typical case because of the uniqueness of the offshore location and that ORNL environmental review costs and NRR environmental manpower costs were high due to the uniqueness of the site.
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ATTACHMENT A
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- 2. New England Power Co. ;
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flew England 1 & 2 Review Segan - August 1976
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Review Ended - December 1979 Percent Review Cemolete Sa fe ty - Essentially 100% complete. SER issued June 1978. ACRS meeting held July 1978 and ACRS letter received July 1978. SER supplement issued July 1979.
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Environmental - 25% complete - DES issued May 1979. Special Studies - ficne
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Unusual Review Circumstances - The site was owned by General Service Administration (GSA) when the appli-cation was filed. GSA published environmental impact statement on disposi-tion of the site and awarded site to DOI, EPA and town. Applicant was excluded. Applicant appealed the GSA decision. ATTACHMENT A
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1 Palo Verde 4 & 5 Review Began - March 1978 Review Ended - September 1979 Percent Review Comolete About 75% complete. SER issued February 1979. ACRS subccm-Safety - mittee and full committee meetings held March 1979 and April 1979.
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About 60% complete. DES issued April 1979. Envi ronmental -
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Scecial Studies or Unusual Review Circumstances - None.
- 4. Ohio Edison Co.
Erie 1 & 2 Review Began - January 1977 Revies Ended - January 1980 Percent Review Cocolete SER issued July Safety - Essentially 100% complete but no hearings held. 1978. Full ACRS me.2 ting held August 1978 and ACRS letter received August 1978. SER supplement issued January 1979.
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Scecial Studies or Unusual Review Circumstances - None ATTACHMENT A _ __- _
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ENCLOSURE B
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Nuclear Regula' tory Commission s [10 CFR Part 170] Fees for Review of Applications AGENCY: U.S. Nuclear Regulatory Commission ' ACTION: Proposed rule
SUMMARY
- The Commission is amending its rules on fees to clarify that fees for review will be charged, as appropriate, when review of an application is completed, whether by issuance of a permit, license, or other approval, or by denial or withdrawal of an application, or by any other event that brings active Commission review of the application to an end.
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DATES: Comments are due by (insert date 30 days after FR publication). FOR FURTHER INFORMATION CONTACT: William 0. Miller, Chief, License Fee Management Branch, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555. Telephone: 301-492-7225. SUPPLDiENTARY INFORMATION: Based upon the language of 10 CFR 170.12(b) and of footnote 3 to 10 CFR 170.21 (footnote 3 reads in pertinent part as follows:
"When review of the pennit, license, approval, or amendment is complete, the expenditures for professional manpower and appropriate support services will be determined and the resultant fee assessed, but in no event will the fee ATTACHMENT 3
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x exceed that shewn in the schedule of facility fees. * * *") the Commission {
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has been billing power reactor construction permit applicants for the actual I costs of review of their applications up to the time the applicant withdraws the application frem Ccmmission consideration. , Zt was the Commission's intent in promulgating 10 CFP, Part 170 that charges be assessed whenever a review is brought to an end, whether by reason of issuance of a license, a denial of an application, or by its withdrawal, suspension or postponement. Such charges are authorized and directed under Title V of the Independent Offices Appropriation Act of 1952 (31 U.S.C. 483a) ar.d supported by judicial decision upholding ~ charges for government services rendered to applicants based upon cost to the agency. See e.g., Mississitoi Pcwer and Licht v. NRC, 601 F.2d 223 (1979) cert denied U.S. (1950), and cases cited therein. The fee guidelines approved by the Cc missien and the Court of Appeals in Mississiooi Power and Light v. NRC, suora, make clear the Commission's position that the review of an applica-tien at the request of a recipient of the service, is a service for which a charge may be made. In the guidelines, fees may be assessed for services rendered at the request of an applicant whether or not these services are linked to or result in the issuance of a pemit or license. For example, the guidelines support the inclusion in the fee schedule of "special projects and reviews" that do not result in issuance of pemits, licenses or approvals but are yet subject to a fee for the service based upon actual cost. (10 CFR 170.21, Schedule F). The review given a power reactor application that dces
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not end in a permit or license is analogous to a special project with respect ii
to the work performed and the service rendered to the applicant. ' j[ The proposed interpretative amendments to 10 CFR 170.12 are intended to remove any possibility of misunderstanding the Ccomission's intent in appropriate
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cases to charge fees on withdrawal or denial of an application, and in cases of suspension or postponement of action on an application. The Commission will consider billing an applicant for costs incurred in the processing and review of an application upon either a statement of intent by the applicant to postpone further review effort or a delay in the construction schedule which causes the staff to postpone further review. In the event such an application is reinstated without significant changes, or review effort recommenced, subsequent charges will, only accrue from the time of reinstatement or reccmmence-ment of review effort. In such cases the aggregate of charges for review of applications covered by the actual cost principle will not exceed the scheduled amount for the class of facility. Although the impetus for the amendments stem from the withdrawal of power reactor construction permit applications, the amendments also will be applicable to certain materials licenses applications subject to the actual cost principle as stated in footnote 4 to 10 CFR 170.31. These are primarily major fuel processing and fabrication plants, waste storage and disposal facilities, spent fuel storage facilities, uranium milling plants, evaluation of casks and packages, and special projects.
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ATTACHMENT B _ _ . - .
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I. Although the rules' changes in these amendments are interpretative only and ,' ir{ ' could be published without notice and comment under 5 U.S.C. 553, the Commis-sion has decided to solicit public comment and, therefore, is proceeding by normal notice and ccmment rulemaking procedure. Pursuant to Title V of the Independent Offices Appropriation Act of 1952 (31 U.S.C. 483a) and Sections 552 and 553, United States Code, it is proposed to
-amend Title 10, Chapter 1, Code of Federal Regulations as follows:
- 1. Paragraphs 170.12(b), (e), and (f) of 10 CFR 170.12 are amended to read
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es follows:3/ i 170.12 Payment of Fees
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(b) , License Fees. Fees for review o,f acclications for construction permits, operating licenses, manuf acturing licenses, and materials licenses, are payable upon notification by the Commission when the review of the project is completed. For the ourcoses of this Part the review of a oroject is comoleted when a cern1t or 11 cense is issuec, or an acolication for a cennit or license is denied, with-drawn, suscencec, or action on the acolication is costoonec.
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(e) Acoroval Fees. Fees for review of acolications for spent fuel cask and sn1pping container approvals, standardized spent fuel facility design approvals, and construction approvals are payable upon notifica-tion by the Commission when the review of the project is completed. For the ourooses of this Part the review of a oroject is comoleted when the acoroval is issued, or tne aoolication for an acoroval is ceniec, withdrawn, suscended, or action on the acolication is costooned. Fees for facility reference stancarcized cesign approvals wiil be paid in five (5) installments based on payment of 20 percent of the approval 1/ Acc1tions to present text are underlined. . ATTACHMENT B
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'f fee (see foonote 3 5 170.21) as each of the first five (5) approved design are referenced in an application (s) filed by a utility o units il
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utilities. In the event the standardized desien accroval acclication is denied witncrawn, su;oencea or action on tne aoolication is cost-ponea fees will be collected wnen tne review 1s comoletec anc tne five (5) installment oayrent orocedure will not acolv. Fees for review of special projects are (f) Soecial Project Fees. payable upon notification by the Commission when the review project is ccmpleted. the croiect is comoletea upon notification by the staff tnat it nas_ finisnec its review. uoan withdrawal of the reouest, or susoension or costoonement of further review. Sec. 501, 65 Stat. 290 (31 U.S.C. 483a), Sec.161, 68 [ Authority: Stat. 948 (42 U.S.C. 2201)]. FOR THE F40 CLEAR REGULATORY COMMISSION
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Samuel J. Chilk Secretary to the Commission Dated at Washington, D.C. day of 1980. this
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ATTACHMENT B
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co.-can-.... .so. .o. ... - 8 3 5 7 December 5, 1980 Mr. Harold R. Denton Director, Office of Nuclear Reactor Regulation U.S. Nuclear Re'gulatory Commission Washing ton , DC 20555 Philadelphia Electric Company Fulton Generating Station Units 1 and 2 (NRC Dockets 50-463, 50-464)
Dear Mr. Denton:
Pursuant to S 2.107 of the Commission's regulations, 10 CFR S 2.107, Philadelphia Electric Company (PE or the Applicant) hereby withdraws its application (NRC Docket Nos. 50-463, 50-464) for a permit from the Nuclear Regulatory Commission to construct twin HTGR units designated Fulton Generating Station Units 1 and 2. A motion to withdraw the application without prejudice and to terminate construction permit proceedings has been filed today with the Atomic Safety and Licensing Board; a copy is attached.
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The construction permit application for the Fulton units was filed in 1973, and staff review and prehearing discovery among the parties had taken place when, in 1975, PE informed the Atomic Safety and Licensing Board that its nuclear steam supply vendor had suspended work related to the Fulton project. PE requested, and the Board granted, permission to place the application in a suspended status. On December 29, 1978, PE filed an amendment to its construction permit applicat'.on seeking an adjudicatory early site suitability review of the Fulton site pursuant to 10 CFR S 2.101(a-1) and Subpart F to Part 2 of the Commission's regulations. This amendmeat was docketed and has received an initial review by the Regulatory Staff but no substantial work on it has taken
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HUNTON & WILLI AMS place. On August 8, 1979, the Atomic Safety and Licensing Board issued a Memorandum and Order denying a motion made by various intervenors, and opposed by PE, to involuntarily terminate this proceeding. 10 NRC 220 (1979). PE has recently concluded that there are no longer significant benefits to maintaining the Fulton application before the Commission. This fact, plus the pendency of proposed regulations (45 Fed. Reg. 74493, November 10, 1980) which as proposed would impose substantial additional fee liability for applications withdrawn after they become , effective, has induced PE to withdraw its application before ! the regulations' effective date. PE therefore requests that the Commission consider its application for a construction permit for Fulton Generating Station Units 1 and 2 to be withdrawn without prejudice as of the date of receipt of this letter. A copy of this letter is being sent today to the Atomic Safety and Licensing Board along with the motion requesting that it permit withdrawal of the application and that the Fulton proceeding be dismissed as moot. Very truly yours,
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l Donald P. Irwin l Attorney for i
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Philadelphia Electric comany 91/728 Enclosure
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f- . UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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Before the Atomic Safety and Licensing Board In the Matter of ) PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. (Fulton Generating Station, Units 1 and 2) ) 50-463, 50-464 MOTION TO WITHDRAW APPLICATION AND TO TERMINATE PROCEEDINGS By the attached letter delivered today to Mr. Harold R. Denton, Director of Nuclear Reactor Regulation, Philadelphia Electric Company (PE) has requested the Commission to consider its application in these dockets for a an early site review and
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construction permit for Fulton Generating Station, Units 1 and 2, withdrawn as of the date of its receipt. For the reasons stated in this letter, PE here*oy movcs pursuant to S 2.107 of the Commission's regulations that this Board permit the withdrawal of the Fulton application without prejudice and that
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it forthwith terminate these proceedings as moot. Rochester Gas and Electric Corporation, et al. (Sterling Power Project, l Nuclear Unit No. 1), ALAB-596 (J 7e 17, 1980). Respectfully submitted,
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( DONALD P. IRWIN Attorney for Philadelphia Electric Company Hunton & Williams P.O. Box 1535 Richmond, Virginia 23212 DATED: December 5, 1980
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I 12/24/80 UNITED STATES OF AMERICA 29210.000002 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
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PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-463
) 50-464 (Fulton Generating Station, )
Units 1 and 2) ) NRC STAFF'S RESPONSE TO REQUEST FOR WITHDRAWAL OF APPLICATION On December 5,1980, Applicant Philadelphia Electric Company filed, pursuant to 10 CFR l 2.107, a " Motion to Withdraw Application and to Termi-nate Proceedings" (Motion) in the captioned proceeding. In its Motion and the letter to the Director of Nuclear Reactor Regulation attached thereto, the Applicant seeks to withdraw without prejudice its application for an early site review and construction permitE for the Fulton Generating Station, Units 1 and 2 and to have the proceeding terminated. As noted, a " Notice of Hearing on Application for a Construction Permit" was published for this proceeding in the Federal Reaister. Accordingly, M nA application for construction permits was filed on July 3,1973 and a " Notice of Hearing on Application for a Construction Permit" was published on December 14, 1973 (38 Fed. Rec. 34484). Pursuant to such notice, a number of persons or groups filed petitions to intervene and were admitted as parties to the proceeding, as were the States of Pennsylvania and Maryland. On September 17, 1975 and February 19, 1976, prior to the commencement of hearings on the construction permit application, the Applicant in-formed the Licensing Board that its nuclear steam supply system vendor would no longer proceed with work related to the Fulton facility. The proceeding then assumed a suspended, inactive status until December 29, 1978, at which time the Applicant filed Amendment No. 32 to its con-struction permit application, seeking an adjudicatory early site suit-ability review for the Fulton site pursuant to 10 CFR & 2.101(a-1) and Subpart F to 10 CFR Part 2. To date, no hearings have been held on either the construction pennit application or the adjudicatory early site review sought by the Applicant and no authorization for site work of any kind has been issued.
l l l l under 10 CFR 5 2.107(a), withdrawal of the application may only be on such tems and conditions as the presiding officer may prescribe. Since neither a Limited Work Authorization nor a construction permit was issued for the application, no site work has been performed by the Applicant to date and j redress of the site is, therefore, not required. Accordingly, the Staff does not object to the Applicants' request for withdrawal of application and temination of the proceeding, and has not determined that any parti-cular conditions should attach to the withdrawal of the application. Respectfully submitted,
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sep R. Gray [ ounsel for NRC Staffr Dated at Bethesda, Maryland this 24th day of December,1980
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UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l In the Matter of )
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PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-463
) 50-464 (Fulton Generating Station, )
Units 1 and 2) ) CERTIFICATE OF SERVICE l I hereby certify that copies of "NRC STAFF'S RESPONSE TO REQUEST FOR WITH-DRAWAL OF APPLICATION" in the above-captioned proceeding have been served i on the following by deposit in the United States mail, first class, or, as ' indicated by an asterisk, through deposit in the Nuclear Regulatory Com-mission's internal mail system, this 24th day of December,1980.
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Mr. Hugh K. Clark, Chaiman Eugene J. Bradley, Esq. l Atomic Safety and Licensing Board Philadelphia Electric Company , P.O. Box 127A 2301 Market Street ' Kennedyville, MD 21645 Philadelphia, PA 19101 Dr. Donald P. deSylva Dr. A. Dixon Callihan Associate Professor of Marine Union Carbide Corporation Science P.O. Box Y Rosentiel School of Marine and Oak Ridge, TN 37830 Atmospheric Science University of Miami Donald P. Irwin, Esq. Miami, FL 33149 Michael W. Maupin, Esq. George C. Freeman, Jr., Esq. Mr. Gustave A. Linenberger* Hunton & Williams ; Administrative Judge P.O. Box 1535 Atomic Safety and Licensing Board Richmond, VA 23212 U.S. Nuclear Regulatory Commission Washington, DC 20555 Honorable Frank R. Clokey Special Assistant Attorney General Lawrence Sager, Esq. Commonwealth of Pennsylvania Sager & Sager Associates Towne House Apartments, Room 219 45 High Street Harrisburg, PA 17602 Pottstown, PA 19464
. Gilbert G. Malone, Esq.
York Comittee for a Safe Ports, Beers, Feldmann & Malone Environment 145 East Market Street Dr. Chauncey R. Kepford York, PA 17401 433 Orlando Avenue ,
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State College, PA 16801 4
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i ! l Theodore A. Adler, Esq. Jean Royer Kohr, Esq. Widoff, Reager, Selkowitz Minney, Mecum & Kohr
& Adler 150 E. Chestnut Street P.O. Box 1547 Lancaster, PA 17602 Harrisburg, PA 17105 Mr. George Hough Edward F. Lawson, Esq. R.D. #2 Special Assistant Attorney General Peach Bottom, PA 17553 Department of Natural Resources Tawes State Office Building Paul K. Allison, Esq.
Annapolis, MD 21401 Allison & Pyfer P.O. Box 1588 Executive Director Lancaster, PA 17604 Susquehanna River Basin Commission Atomic Safety and Licensing Board 1721 N. Front Street Panel
- Harrisburg, PA 17102 U.S. Nuclear Regula-tory Commission Washington, DC 20555 George L. Boomsma Save Solanco Environment Atomic Safety and Licensing Appeal Conservation Fund Panel (5)*
P.O. Box 64 U.S. Nuclear Regulatory Commission Quarryville, PA 17566 Washington, DC 20555 James A. Humphreys. III Docketing and Service Section (7)* Barley, Snyder, cooper & Barber Office of the Secretary 115 E. King Street U.S. Nuclear Regulatory Commission Lancaster, PA 17602 Washington, DC 20555 Mr. Walden S. Randall Riverhill Farm R.D. #2 Holtwood, PA 17532 l /% Jse/R.GrayJ ounsel for NRC St ff
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ENVIRONMENTAL COALITION ON NUCLEAR POWER 29210.000002 C+ D.r ectors. Mr. George Boomsma-R.D. et, Peach Bottom, Pa. 17563 717-548-2836 Dr Jud.th Johnsrud-433 orlando Avenue, State Couege, Pa. 16801 814 237 3900 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of PHILADELPHI A ELECTRIC COMPANY ) Docket Ntsnbers 50-463 (Fulton Generating Station, 50-464 Units 1 and 2)
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RESP 0"SE OF INTERVENORS YORK COMMITTEE FOR A SAFE ENVIRONMENT AND
- CP4 TRAL PENNSYLVANI A COMMITTEE ON NUCLEAR POWER TO APPLICANT'S kEQUEST OF DECEMSER 5,1980, TO WITHDRAW APPLICATION WITHOUT *
- PREJUDICE AND TO TERMINATE CONSTRUCTION PERMIT PROCEECINGS l l
By letter to the Director of the NRC Office of Nuclear Reactor Regulation, dated December 5,1980, the Applicant withdraws its applica- l tion for a permit to construct two High Temperature Gas Cooled reactors at its Fulton site in Pennsylvania, and states that a motion to withdraw . the application without prejudice and to teminate construction pemit l proceedings has been filed with the Atomic Safety and Licensing Board and accompanies the letter. The 5.tervenors York Committee for a Safe Environ-ment and Central Pennsylvania Cormiittee on Nuclear Power, both member groups of the Environmental Coalition on Nuclear Power, support the Applicant's Motion to withdraw application and terininate construction pemit proceed-ings but oppose the Applicant's request that the application be withdrawn without prejudice. For seven years, this application has remained pending. Time, effort, research, and money have been expended by the AEC and NRC Staff and by the unfunded public-interest Intervenors. Since 1975, Applicant has known that its nuclear steam supply vendor was out of the comercial HTGR business. i Since 1978, the Applicant has attempted to bypass the requirements of the National Environmental Policy Act by its application for an Early Site , Suitability Review of the Fulton site. Applicant in 1979 opposed temina- l tion of this proceeding, despite declining growth projections, lack of demonstrated need for power, "calating costs of constnJction and delays of Applicant's Limerick Nuclear Station. Now, suddenly a prospective
" substantial additional fee liability" is put forth as the justification for the belated request to cancel this multi-billion dollar nuclear project.
There is no recompense proposed by Applicant for other parties who have in-curred major costs in consequence of Philadelphia Electric Company's { I l
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frivolous insistence upon keeping alive for seven years a nuclear project that has clearly lacked viability for the last several years. There are menters of our organization whose physical and mental health has been adversely affected in consequence of the uncertainties imposed by the Applicant's mfusal to abandon this nuclear power project. Their real property has been in limbo in terms of sale price of land in the im-mediate vicinity of the proposed reactors, and these adverse economic impacts have been especially significant to them in the many months since the accident began at Three Mile Island. For the reasons cited above, the Intervenors move that the Nuclear Regulatory Comission dismiss the Philadelphia Electric Company's applica-tion to construct the Fulton Generating Station, Units 1 and 2, with prejudice, and teminate the construction pemit and early site review
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proceedings. As t1xpayers, the Intervenors also mcommend that the NRC seek restitution for costs incurred by the NRC in its seven years of - processing this application to be paid by the stockholders of the Applicant. Respectfully su itted,9
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Chauncey Kepfo [ p' ' Dated this / 7 day Representative of the Intervenors of December,1980 -
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l CERTIFICATE OF SERVICE a I hereby certify that copies of RESPONSE OF INTERVENORS YORK COMMITTEE FOR A SAFE ENVIRONMENT AND CENTRAL PENNSYLVANI A COMMITTEE ON NUCLEA APPLICANT'S REQUEST OF DECEMBER 5,1980. TO DUMP FULTON 1 & 2 have been served on the foliowing by deposit in the U.S. Mail first class postage paid, , on this [ 7 day of December,1980: l - -
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Mr. Walden S. Randall _
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Riverhill Farm Theodore A. Adler, Esq. R.D. f2 Widoff, Reager, Selkowitz Holtwood, PA 17532 . l
& Adler P.O. Box 1547 Jean Royer Kohr, Esq. ;
l Harrisburg, PA 17105 Minney, Mecum & Kohr
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150 E. Chestnut Street Michael J. Scibinico
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Lancaster, PA 17602 Special Assistant Attorney Atomic Safety and Licensing General Department of Natural Board Panel U.S. Nuclear Regulatory Tawes State Office Buildin9 Commission Annapolis, MD 21401 Washington, DC 20555 i Executive Director Atomic Safety and Licensing
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Susquehanna River Basin Commission Appeal Panel U.S. Nuclear Regulatory 1721 N. Front Street Commission Harrisburg, PA 17102 Washington, DC 20555 George L. Boomsma Docketing and Service Section Save Solanco Environment Office of the Secretary Conservation Fund U.S. Nuclear Regulatory Commission P.O. Box 64 Quar ryville, PA 175 ti6 Washington, DC 20555 James A. Humphreys, III Barley, Snyder, Cooper & Barber
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Mr. Hugh K. Clark, Chairman P.O. Box 127A Dr. A. Dixon Callihan Kennedyville, MD 21645 Union Carbide Corporation , P.O. Box Y Dr. Donald P. deSylva
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00k Ridge, TN 37S30 Associate Professor of Marine *, l Science W. Jeffrey Sidebottom, Esq. Rosentiel School of Marine and ' Barley, Snyder, Cooper & Barber Atmospheric Science 115 East King Street University of Miami Lancaster, PA 17602 Miami, FL 33149 Gilbert G. Malone, Esq. Mr. Gustave A. Linenberger Ports, Beers, Feldmann & Malone Atomic Safety and Licensing Board 145 East Market Street U.S. Nuclear Regulatory Commission York, PA 17401 Washington, DC 20555 Lawrence Sager, Esq. Mr. Donald P. Williams Sager & Sager Associates Hunton and Williams 45 High Street P.O. Box 1535 Pottstown, PA 19464
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l Before the Atomic Safety and Licensing Board l l In the M3tter of ) , PHILADELPHIA CLECTRIC COMPANY ) Docket Nos. 50-463, ( Ful ton Generating Station, Units 1 and 2) ) 50-464 1 ! l APPLICANT'S REPLY TO INTERVENORS' RESPONSE TO APPLICANT'S l 1
'tOTION TO WITHDRAW APPLICATION AND TERMINATE PROCEEDINGS The Applicant, Philadelphia Electric Company, hereby l replies to the " Response of Intervenors York Committee for a l Safe Environment..." to its pending request to withdraw the I
Fulton construction permit application and to terminate these l construction permit proceedings without prejudice. Intervenors have opposed that portion of the Applicant's motion which would terminate these proceedings without prejudice. Intervenors have shown no basis for their proposal that the termination of these proceedings should be with prejudice. Indeed, each of the Applicant's acts referred to by Intervenors was merely consistent with good faith prosecution of a properly filed application. The unilateral cessation of work on the project by PE's reactor supplier in 1975 hardly furnished a reason to prefer withdrawal of the application then over seek-ing to amend it with a new type of reactor, especially in view of the fact that prehearing review of the project by the l L__
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Regulatory Staff was nearly complete. Similarly, the adaptation of the project to an Early Site Review in early 1979 (en action which Intervenors challenged, unsuccessfully, at the time) was perfectly proper under the Commission's regulations. The Applicant's recent decision to withdraw its application simply reflects the accumulation cf two additional yesrs of circumstances, including the NRC's post-TMI licensing suspen-sion and a continuation of lower rates of load growth. Further, the fact that the timing of the motion to withdraw was intended to save the Applicant and its customers possible addi-tional regulatory fees is hardly an argument for penalizing the Applicant. Equally important, however, no factual or legal determinations adverse to the Fulton application have ever been made; to the contr&ry, the Regulatory Staff's Final Environmental Statement and Safsty Evaluation Report were both, on balance, favorable to the proposal.1/ In short, the Applicant's actions with respect to the form and continuation of the Fulton application have been con-sistently proper and reasonable in light of shifting and in-creasingly adverse circumstances. Further, the record of this application to date furnishes no basis for a conclusion that the Fulton site would not have proven suitable for a power re-actor. Prejudicial dismissal of this application, which might, 1/ Intervenors had filed no detailed factual materials at the time work was terminated on the project.
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_ . _ . . in turn, unfairly prejudice a successor application for a power reactor on the Fulton site, is not warranted. The Applicant submits that its motion for withdrawal of its Construction Permit application and termination of these proceedings without prejudice should be granted as initially requested. Respectfully submitted,
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Donald P. Irwin Counsel for Philadelphia Electric Company Hunton & Williams P. O. Box 1535 707 East Main Street ,
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Richmond, Virginia 23212 Of Counsel: Eugene J. Bradley, Esquire Philadelphia Electric Company 2301 Market Street Philadelphia, Pennsylvania 19899 DATED: January 23, 1901
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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ) PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. (Fulton Generating Station, Units 1 and 2) ) 50-463, 50-464 CERTIFICATE OF SERVICE I hereby certify that I have served copies of the Applicant's Reply to Intervenors' Response to Applicant's Motion to Withdraw Application and Terminate Proceedings on the following persons by hand or by U.S. mail, first class postage prepaid, this date: Mr. Hugh K. Clark, Chairman Eugene J. Bradley, Esq. P.O. Box 127A Philadelphia Electric Company Kennedyville, MD 21645 2301 Market Street Philadelphia, PA 19101 Dr. Donald P. deSylva Associate Professor of Marine Dr. A. Dixon Callihan Scienco Union Carbide Corporation Rosential School of Marine and P.O. Eox Y Atmospheric Science Oak Ridge, TN 37330 University of Miami Miami, FL 33149 W. Jeffrey Sidebottom, Esq. Barley, Snyder, Cooper & Barber Mr. Gustave A. Linenberger 115 East King Street Atomic Safety and Licensing Board Lancaster, PA 17502 U.S. Nuclear Regulatory Commission Washington, DC 20555 Gilbert G. Malone, Esq. Ports, Beers, Feldmann & Malone Lawrence Sager, Esq. 145 East Market Street Sager & Sager Associates York, PA 17401 45 High Street Pottstown, PA 19464
__ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ York Committee for a Safe Mr. Walden S. Randall Environment Riverhill Farm Dr. Chauncey R. Kepford R.D. #2 423 Orlando Avenue Holtwood, PA 17532 State College, PA 16801 Jean Royer Kohr, Esq. Theodora A. Adler, Esq. Minney, Mecum & Kohr Widoff, Reager, Selkowitz 150 E. Chestnut Street
& Adler Lancaster, PA 17602 P.O. Box 1547 Harrisburg, PA 17105 Atomic Safety and Licensing Board Panel Michael J. Scibinico U.S. Nuclear Regulatory Special Assistant Attorney Commission General Washington, DC 20555 Department of Natural v Tawas State Office Building Atomic Safety and Licensing Annapolis, MD 21401 Appeal Panel U.S. Nuclear Regulatory Executive Director Commission Susquehanna River Basin Aashington, DC 20555 Commission 1721 N. Front Street Docketing and Service Section (7)
Harrisburg, PA 17102 Office of tha Secretary U.S. Nuclear Regulatory Commission George L. Boomsma Washington, DC 20555 Save Solanco Environment Conservation Fund James A. Humphrays, III P.O. Box 54 Barley, Snyder, Cooper & Cuarryville, PA 17566 Barber 115 E. King Street Lancaster, PA 17602
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Donald P. Irwin DATED: January 23, 1981
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Hugh K. Clark, Chairman 'U I 'E" Dr. Donald P. de Sylva Gustave A. Linenberger
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_ng]q,qqqqqp ' In the Matter of Docket Nos. 50-463-CP 50-464-CP
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PHILADELPHIA ELECTRIC COMPANY (Application for Construction
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e s and Early Site Reivew) (Fulton Generating Station, Units 1 and 2) February '27, 1981
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DECISION AND ORDER (Dismissing Proceeding with Prejudice) By letter dated December 5, 1980, to the Director, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Co=nission, the Applicant sought to withdraw the above-identified application for construction permits, including its request for an adjudicatory early site suitability review (hereinafter called "Early Site Review"). Also on December 5, 1980, Applicant filed a motion requesting that this Board, pursuant to 10 C.F.R. 5 2.107(a), per=it the withdrawal of the "Fulton Application for construction per=its and that 'the proceeding be ter=inated as moot. By pleading dated December 17, 1980, the Intervenors supported the withdrawal of the application and the termination of this pro-ceeding.
The NRC Staff responded December 24, 1980. The Staff pointed out that, while the application was filed July 3, 1973, there have been no hearings held and no authorization for site work has been issued. Since no site work has been performed, redress of the site is not required, and no conditions need be attached for per=ission , to withdraw the application. On the basis of the above, it would appear that Appli, cant's request should be granted as a matter of course. There is, however, a problem. Applicant requested dismissal "without prejudice", and the Intervenors urged that the proceeding be dismissed "with prejudice". In its response to the Intervenors' position Applicant, by pleading dated January 22, 1981, argued that:
"... each of Applicant's acts referred to by Intervenors was cerely consistent with good faith prosecution of a properly filed appli-cation.... Similarly, the adaptation of the project to an Early Site Review in early 1979... was perfectly proper under the Co=-
mission's regulations." The Applicant's reactor supplier stopped work on the project in 1975, and thenceforth it har been clear that the reactors described in the application would not be built. The review of the application was suspended pending a decision by Applicant as to whether or not to proceed with the construction of a nuclear facility of a differ-ent design on the same site. About one-third of the proposed site is privately owned. The Intervenors represent the owners of this land and others situated
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! t nearby. They allege that the uncertainties as to the ultimate,use of the proposed site have worked a hardship upon the=, causing per-sonal anxieties and preventing optimum uses of the land or sale thereof. They, and their representatives in Congress, have repeat-edly co=plained to the Co==ission concerning the uncertainty which they endured. It is true that a prompt dismissal of the application after the events of 1975 would not have prevented a later filing of an application by Applicant or by others for construction permits using the sa=e site. This possibility is always present at all to sites throughout the nation and is so vague and nebulous as not present the proble=s which the Intervenors have encountered. By letter, dated January 30, 1978, the Staff advised Applicant that it (the Staff) would file a motion to ter=inate the suspended proceeding in the absence of " fir = plans for early use of the Fulton site." Applicant responded by letter of March 8, 1978, stating,
"... it is our intention to file with the Co==ission by the end of this year an amendment to the construc-tion per=it application for an adjudicatory Early Site Review of the Fulton Site."
_ The Staf f construed this to mean that Applicant had " fir = plans for early use of the Fulton Site." This is evidenced by the Staff response to a letter fro = Congress =an Robert S. Walker to Chair =an the continuing Hendrie dated July 7, 1978, expressing concern about uncertainty over Applicant's intentions regarding the Fulton site. The response, dated August 11, 1978, states in part:
"....the NRC staff decided not to file a motion to terminate the construction proceeding. This decision was based on our view that Philadelphia Power Company intends to use the Fulton site for a power plant...."
As required by the Board, Applicant filed monthly statements as to the status of the Fulton application during the period fro:
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Dece=ber 1975 to December 1978. By letter dated January 16, 1979, Applicant advised the Board of the filing on December 29, 1978, , of its Amendment 32 to the application requesting an Early Site Review. This letter stated in part:
"Since the Fulton construction per=it application has now returned to the usual licensing path, we believe that the function of the interim monthly status reports has been fulfilling and that further such letters would not serve an independent useful purpose."
The Board accepted this statement as =eaning that the Applicant had decided to proceed with the construction of nuclear generating facilities at the site. The inferences of the Staff and the Board that Applicant had a fir: plan to contruct nuclear facilities on ! the site were based primarily on the assumption that Applicant's request for Early Site Review would meet both the for and the sub-stance of the pertinent regulations (10 CFR 5 2.600, et sec.). The purpose of the Early Site Review is to expedite the licens-ing prccess. Its use is based on the anticipation that plans are under way for the filing of the remaining part of a construction _. - . . , . -- - - - . - - -- ,-
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i t 1 t l \ -S-permit application. The Statement of Consideration concerning Early Site Reviews states in part:
"The effective rules... do not provide for issu-ance of a partial decision by an atomic safety and licensing board on these issues unless the request for review was made in the context of a person proposing to construct a nuclear facility."
(42 FR 22882 published May 5,1977.] The Statement of Consideration goes on to mention situations where, because of economic or financial reasons, construction of~ nuclear plants is postponed. Here the statement is made that:
"It is the Commission's intent that the procedures l
for early review, hearing and partial decision on
! site suitability issues provided in these reguia-tions for construction permit applicants shall be available to all qualified construction per=it spplicants, including applicants who did not request early review of site suitability issues at the time of their initial application but who later decide, following postponement of the target date for actual construction of the facility, that this procedure would be advantageous."
An applicant has up to five years after the Early Site Review pro-ceeding to file the remaining parts of its application for con-struction of nuclear facilities. While superficially this five-year period may encourage requests for Early Site Reviews by applicants who have no present intention to construct a nuclear facility, no such interpretation is justified in the light of the earlier quota-tion above. A mere desire for an Early Site Review in anticipation that a decision to use the site may be made at some future time does not fall within the substance of the pertinent regulations. An
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applicant who files a request for an Early Site Review while having full intention of building a nuclear facility on the site, may prop-erly reach a different decision thereafter in the light of new infor-mation. A request.for termination of the proceeding pro =ptly =ade upon reaching the new decision carries no i= plication that the request for Early Site Review was improper. However, the Early Site Review is not available to an applicant who has no present intent. ion to con-struct nuclear facilities on the site. The period of time during which there has been no prosecution l of this proceeding by Applicant, depends on whether or not the request for Early Site Review falls within both the for= and the substance of the regulations. This, in turn, depends on the motives of the Applicant in filing such request. In its letter of December 5, 1980, to the Staff, Applicant gives its reasons for withdrawal of its application thur:
"PE (Applicant] has recently concluded that there are no longer signficant benefits to maintaining the Fulton application before the Com=ission.
This fact, plus the pendency of proposed regula- ' tions (45 Fed. Reg. 74493, November 10, 1980) which as proposed would impose substantial additional fee liability for applications withdrawn af:er they became effective, has induced PE to withdraw its application before the regulations' effective date." This statement may i= ply that now, for the first ti=e, Applicant has reached a decision as to whether or not to construct a nuclear plant
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on the site. It may imply, that, for econonic reasons, a prior firm plan to construct a nuclear plant on the site 1s revoked.
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, Because of the above-noted ambiguity, a search of the record was made seeking evidence of Applicant's motives and decisions, if any. The search revealed no statement since 1975 by Applicant the it had a firm plan to construct nuclear facilities on the site. On the contrary, a clear statement of Applicant's position,was found in summary minutes of a meeting between Applicant and the
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Staff on May 11, 1978, the written minutes being dated May 24, 1978. A copy of these minutes was sent to Mr. J. L. Everett, President, Philadelphia Electric Company, by letter dated May 31, 1978. Since Applicant did not request alterations of the minutes, they were taken as accurate. The minutes state, in part:
"In response to questions on whether PEC had already decided that the Fulton site is only suitable for nuclear units, and what type of plant would be constructed at the site PEC stated that it was not clear that a nuclear unit would be put at the Fulton site, and that l
the type of plant would be decided in about l 1983. PEC noted their motivation to seek ESR l and approval of the Fulton site becsuse there
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is no abundance of suitable nuclear sites. PEC additionally stated that it was clearly possible that the Fulton site could be utilized for a gas cooled reactor, as conte =placed in the original application. PEC also stated that it is possible that the Fulton site would be shared with another utility, in return for site sharing by others, to keep costs low. Dr. Johnsrud noted that Pennsylvania does not pres-ently have a law which permits ' site banking'." _ _ _ _ _
l - Analysis of this passage revoals that: (1) Applicant had reached no decision as to whether or not to use the Fulton site for a nuclear facility; (2) Applicant had reached no decision as to the type of facility it would construct, if it decided to use the J site; (3) site banking was not permitted under Pennsylvania law; and (4) because of the scarcity of suitable sites, Applicant's motive in seeking an Early Site Review was to maintain the.uncer-tainties as to possibie use of the site until a decision should be reached at some future time, possibly in 1983. , From our study of the record, we conclude that Applicant's request for an Early Site Review was for the purpose of preventing ter=ination of this proceeding, and not for the purpose of expedit-ing it. It does not confor= to the substance of the pertinent regulations, and did not stop the running of the period of Appli-cant's suspension of prosecution of the proceeding. In Sum =ary: We hold that Applicant's request for an Early Site Review is outside of the purpose and intent of the pertinent retulations. We hold there has been a period of suspension and uncertainty since 1975. We hold that the period of suspension is too long to: justify a dismissal without prejudice. Accordingly this procee ing must
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be dismissed with prejudice.
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. ORDER l In view of the foregoing it is, this 27th day of February, f
l 1981, ORDERED,
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That the above-captioned proceeding be dismissed with pre-judice; and That the Staff be advised that the subject Application should be terminated, without conditions regarding site restoration. FOR THE ATOMIC SAFETY AND LICENSING BOARD Hugh K. Clark, Chair =an ADMINISTRATIVE JUDGE f
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. 228S2 RULES AND REGULATIONS
- 1. Section 212 83th) is amended by concerns and to enhance the efective- produetton facilttles such as nuclear fuel adding a new paragraph (hl(2)(iv) to ness read as folloss:
of the nuclear fac1hty planning reprocessing plants or other fac111tles of process. the type specified in i 50.21 because this 6 212.R3 Price rule. ErtwME DATE: fune 6.1977, w uld be premature and unnecessary.
* * * * * (2) De proposed rule has been mod!-
(ht Equal applicoffon among c!csses TACT: MR FURTHER INFORMATION CON- fled to provide that an early partial de-t/ purchaser. * *
- clsion on site suitability issues may only (26 Special rules. * *
- Mr. Martin.O. Malsch. Omce of the Ex- be reopened based on s!gnifleant new In-(tvl Refati sales o/ pesoline bst refincrs. eeutive legal Director. U.S. Nuclear Mah N Nion in the proposed Regulatory Commission. Washington, rule that such a early decialen could
, ! When a refiner calcula'es the amount of D C. 20555, phone 301-s92-7203 and also be reopened for " good cause has inerened costs not recouped that may be added to h!ay 15. 1973 selling prices Mr. Malcolm L. Ernst. Omee of Nuclear been deleted as duplicative and unneces-Cf gasolme to compute maximum allow- Reactor Regulation. U.S. Nuclear Reg- stry. cble prices in a subsequent month. it ulatory Commission. Washington. D.C. (3) To elfm!nate needless argument on may. notu tthstanding the general rule in 20555. phone 201-492-8016' such matters as the content of a " fun" p ragraph (bi(1) of this section. com. SUPPLEMENTARY INFORhiATION: site approval and the relation between pute resenues as though (A) the greatest site and des!gn issues, the effective rule cmount of increased costs actually added BAeKGaoUND eliminates the references to and 8ttempts to any hiay 15.1973, selung price of gaso. to distinguish between full and partial On April 22, 1976. the U.S. Nuclear site approvals in the proposed rule. Re-line and included in the price charged to Regulatory Commission published in the lated to this, the final sentence in cny class of purchaser that purchases Frerut Rrcistra (41 FR 16835-168391 12 604(b) of the proposed rule whleh gasoline at retail from a refiner at any for pub!!c comment proposed amend- would have provided that a partial de-senice staticn operated by employees of ments to its regulations in 10 CFR Parts cision on all site suitability issues shan tbe refiner had been added to the Mpy 2 and 50 which would provide procedures serve as the decision on general site
- 15. 1973. selling prices of that prodt.ct designed to encourage and facilitate suitability issues required bv l 50.10'e) nd included in the price charged to early consideration of site suitability 1s-( 2 1 (111 has been deleted. Whether an e:ch class of purchaser that purchases sues associated with nuclear power reac- early partial decision would sene as the
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g:soline at retail from a refiner at any tors and other large utilization and pro- dectston on general site suitability issues service station operated by employees ductjon facilities and would extend the would depend on the nature and scope of the refiner and. (B) the greatest so-called " limited work authorization" of the decision and would be decided cmount of increased costs actually added concept to include productlen fac111tles during the Ilmited work authorization. , to the May 15.1973. selling price of gaso- such as commercial isotopic enrichment review and decision process. 1 line and included in the price charged to plants, fuel reprocessing plants and test. l (41 The provisions in paragraph 4 of cny clas ofatpurchaser gasoline retail fromthat purchases a refiner at anyingv1ted reactors. Interested to submit persons written commentswere in-forAppendix Q of the proposed rule relating senice station operated by employees of consideration 1n connection with the pro- to the binding ef!ed of sta!! site ap-provals on later staff reviews have been l the re*1ner had been added. In the same posed amendments by July 15. 1976 (41 revised to more clearly reflect the intent cmeunt (less any actual differential or FR 27805. July 1,1976). Upon considera- of the proposed rule that the staff's tes-I, three cents per gcIlon, mMehever is lessi tion of the comments received and other timony on site suitabihty issues before to the May 15, 1973 selling prices of factors involved the Commission has an Atomic Safety and Licensing Board gasolme and included in the price adopted the proposed amendments with need not coincide with a previous review charscd to all other classes of purchaser. certain modifications as set forth below. under Appendix Q where there is good [rn Inc 77-12sto Filed 5-2-77:1:35 pm] Cnanczs Fnow n(t PRoPostD Retr yasdngfor $egd1[erence, in I ght of the The effective rules follow the baste ap. Appendix Q does not in any way limit fHAPTER l-NUCLEAR REGULATORY proach suggested in the proposed regula- the authority of the Atomic Safety and l COMM!SSION tions and estab!1sh procedures for the Lleensing Board. Atom!c Safety and Lt. PART 2-RULES OF PRACTICE early review of issues of site suitability censing Appeal Board, or the Commis.
- both separate from and in conjunction sion.
PART 50-LICENSING OF PRODUCTION with the initiation of proceedings for the (5) In order to provide added assur-AND UTILIZATION FACILITIES issuance of permits authorizing the con
- Early Site Reviews and Limited Work struction of certain ut!Uzation facilities- anee that early reviews of site suitabihty Authorizations 'Itese procedures are in accord with the 1ssues will yield useful results proper.
Commission's present statutory au* expended tionate to the resources that must be AGENCY: U.S. in the review the proposed rule
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Comm!ssion Nuclear Regu'atory thority. They permit aAy person includ- has been revised il 2.605 and persgraph ing States and other entitles. to request 7. of Appendix Q) to include several ad-AC* TION: Final Ru!e. a reder of site suttabinty issues, but do ditional grounds on sh!ch the Commis-
SUMMARY
- The rule which follon es- not provide for issuance of a partial de- sion, upon its om initiative or on ttb1L<hes procedures for the early review cision by an atomic safety and scensing motion of a party, may decide not to cf site su!tability issues both separate board on those issues unless the request initiate an early review. These criteria from and in conjunction with the initla- for review was made in the context of a reflect the present Commission practice tion of proceedings for the issuance of construction permit proceeding initiated regarding initiation of separate Marings permits authortzing the construction of by a person proposing to co tstruct a on site suitability issues (See Fotomac nuclear power and test reactors. These from nuclearthefproposed acility. Therule significant are: changes Electric Power Company (Deuglas Point procedures would permit an applicant Nuclear Generating Station. Units 1 for a construction permit to obtain res* (1) The f ac111tles covered by the e!!ee- and 2) ALAB-277.1 NRC 539 at 547 glution of important site-related issues tive rule incluQ fpf!Vllon facilities for (19751). The criteria include such pubt.e crhich msy prove dispositive of an ap- thich an envirt,nmental impact state- Interest considerations as the degree of plication to construet a faelhty at a par- ment must be prepared prior to issuance likelihood that early findings on site suu ticular site well in advance of any sub- of a construction permit and which are abutty issues will retain their validity in stanttal commitment of resources. BY of the type spee!Aed in 10 CFR I 50.21(b) later reviews and the possible erect on (2) or (3) or 50.22 (nuclear power reac- the public interest and interested parties permitting early review and providing a tors) or are testing fac111tles. After con- of early, but not necessarily conclushe, measure of certainty in this important sideration.' the Commission decided not resolution of site suitabihty issues. In ad-Crea these procedures are expected to to extend the effective rule on early re- dition. the criterion in the proposed rule increase the eNectiveness of the licens- view of site suitability issues or extend designed to avoid prejudicing later NEPA ing process in resolving legitimate public the 11mited work author!2ation concept to reviews has been retained, and a new crl-
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PfDieAt efGiltte. VOL 42, NO. 87 THut5 DAY. MAY 5,1977
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, w RULES AND RE2ULATENS 22SS3 terlon has been added to accommodate various economic and financial reasons, reexamined tf there sere good reason possible objections to the early review of to cancel or postpone plans for the con. for doing so.
site suitabdity issues by cognizant state struction of nuclear power plants. It is ne regulations contain certain re-or local government agencies in partic- the Commission's intent that the pro. qu!rements thich the Commission con-ula, ases Finally, the effective rule pro- cedures for early review, hearing and siders essential in order to assure that vide, that only one retlew of site suit. partial decision of site suitabuity issues the procedurer for early review of site abutty issues could be conducted prior provided in these regulations for con- suitabuity issues contribute eccetively to to the full NEPA construction perrnit struction permit app!! cants shall be and are meaningfully integrated into review, available to all qualined construction the !kerains process. These requ!rements (6) A prevision has been added for so. permit app!! cants, including applicanta proude awh*Wms sh!ch should en-Ilciting the views of NEPA commenting sho did not request early review of site able the Commission (1) to reach a agencies review of siteon suitability the init!ation of an early suitability issues at the time of their viable accommodation between the need issues initial application but sho later decide. to make licensing decisions on the moet CereM)made Otherto:minor or clarifying cha.nges following postponement of the target up-to-date information avauable and date for actual construction of the the need to curtail repetitive considera-Define more exactly the period of time f acility. that this procedure would be tion of previously decided issues. (2) to during sultabihtywhich a partial matters decision on site advantascous. is efective: All such requests must be avoid prejudicing the conclusions of any accompanied by the information later retlew of NEPA (National Environ-Provide more spectSc guidance con- prescribed in the eHective rule, and will mental Policy Act oi19t9n issues regard-cerning the time for filing and content be subject to the same acceptance re- ing alternative siting. (3) to assure that of the respective permit appliention;parts of a construction view. The requirements in the ecective early review of site suitabihty issues will rule for nling the remaining parts of the yleid results proportionate to the Obtain information concerning alter- construction permit application must resources that must be expended in the rr tive sites. the applicant's site selection also be fonowed. review, and w1U n' undermine the process and the applicant's plans for ut. Persons who do not seek a permit to ability of interested emrens groups and
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timate development of the site; construct a facility may use the pro- other persons to pa ticipate ecectively Clarify that no limited work author!- cedures in new Appendix Q to 10 CFR in the site review process, and (4n to nation or construction permit can be is- Part 50. Under these procedures, inter- consider the views of cognizant state and sued reytew, NEPA without completion of the full ested persons. including States, may local agenetes with regulatory authority request a Commission sta3 review of site over the proposed site and plant. nese changes are described more fully suitability issues at any time. This re- These requirements, shich are appit-below in the detailed explanation of the view shich does not involve a public cable to all requests for early review of 55ective rules. hearing, culminates in the issuance of a site suitability issues, whether submitted EzrLAMarroM or THE ErrEcTTYE RULES stas site report which Ident10es the by appl 1 Cants for ccnstruction perm!ts location of the site, states the s!te sult- or others, prescribe the kind of informa. Under the amendments to 10 CFR ability issues reviewed, explains the tion which must be supplied in order for Part 2. applicanta for construction per- nature and scope of the review and states the Commisslon to consider a request for mits may request early review, hearing the conclusions of the staff regarding early review of site suitability issues, and and partial decision on specinc site sult. the issues reviewed and the reasons for specify criteria on w hich the Commission ability issues as much as five years in ad- those conclusions. The procedures in may base its refusal to perform such a vance of the submittal of the remaining Appendix Q require the Commission review. portions of the!r construction permit ap- staff to publish a notice of avauability For example, app!! cants for construe-plications. "Ite effective regulations con- of its report in the FrtsmAL Rtessita and tion permits sho seek early review of tain a schedule whleh specif es when the to place copies of the report in the Com- site suitability issues are required by
~ several parts of a construction permit mission's Pub!!c Document Room at l'il7 12.101'a-1)(1) to submit proposed find-epplication are to be filed and the pro- H Street. NW.. Washington. D C., and in ings. together with a supportmg state-cedures governing acceptance review and local pub!!c document rooms located ment, on the issues of site swtability fLrmal tiocketing of these submittals. near the site identified in the report he submitted for review. and to provide in.
Absent a finding by the Commission, the Commission sta!!is also required to send formation on a range of postulated fa-
. Atomic Safety and Licensing Appeal a copy of the report to the Governor or cility design and operation parameters Board, or the Atomic Safety and Licens- other appropriate of5cial of the State in suf5cient to enable the Commission to ing Board that there exists significant which the site is located, and to the chief perform the reque .ed review. Appli-new information that substantially af- executive of the mun!cipality in which cants for construction permits are w f?.ts the conclusions of the partial de- the site is located. or if the site is not required by Il 2.101:a-1)(1) and 2.603
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tision en site suitability issues and located in a snunicipality. to the chief (b>(1) to submit descriptions of their necessitates reopening the hearing rec- executive of the county. site selection process which explain the
. crd, the regulations provide that a par. Although Appendix Q explieltly states extent to shich that process invohes the
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tal decision on site suitability issues that issuance of a staff site report does consideration of alternative sites and o shall rematn in effect either for a period not constitute a commitment on the part the relationship betseen that process of five years or. where the applicant has of the Comm!ssion to issue a permit or a and the application for early review of ( [ made timely submittal of the remainder license or to permit slte work to go for- site suitability issues. Applicants are l w of his application until the conclusion ward pursuant to alimited work authort. also required to provide a brief descrip-l l of the pending construction permit pro- ration (10 CFR l 50.10(e)) and does not tion of their long-range plans for ul-y.
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ceeding. The effective rule pmvides that affect in any way the authority of the timate development of the site. Section r the Commission may, upon good cause Commission, appeal board. or licensing 2.605 of the regulations provides that
- shown. extend the five year period dur- boards in any proceedings conducted the Commission. on its own intiatne or 8 ing which a partial deelston shall re- pursuant to 10 CFR Part 2. Subparts F' on motion of ar.j party to the proceed-
, main in effect for an additional reason- and O. Append!x Q permits applicants ing, may decline to initiate an early l y able period of time. not to exceed one for construction permits to reference hearing or render an early partial dect-l
'f year.'Ihe effective ru!e also provide that previously issued Staff Site Reports in slon on any issue or issues of site suit.
any partial decision on a site suitability their applications. Consistent with Sub-
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l 3 lasue or issum shall be incorporated in part F. the staff would reexamine the ability in connection with a construction j , h' N. ' the decision regardir t issua ice of a con- conclusions of its early review of site permit application in cases shere no struction permit (; the extent that it * # U " " l w serves as a basis for the decision on a suitability issues, contained in the Staff y specific site suitability .ssde or issues. Site Report, under Appendix Q after isubpart P provides for earle review of s!te r With!n the last year or so. a number of five years. Before that time the con- suitabusty issues in connection with con-f ut!!! ties have found it necessary. for clusions of the Report would only be struction permit opplications
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HDf tAL REGilttt. VOt. 42, NO. Gr rHut5 DAY, MAY S.19tr t
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I 22 W RULES AND RE2ULATIONS
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under Part $1 of the proposed site and ing issuance of a construction permit ne eNective regulation permits a simi. alternatise sites is requested, upon de. to the extent that the partial decision lar procedure to be followed in connec.
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termination that there is a reasonable serves as the basis for deciding a specific tion with an Appendix Q review. Since likehhood that further review sould site suitability twue or issues. the scope of the NEPA review will ce.
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identif> one or more preferable alterna. Morcoser, at the same time the Com. pend in any given instance on the nature , tive sites and the partial decision on one mission also recognizes the need to ms. and scope of the site suitabihty issues gr more site suttab;hty issues sould lead rure t!.at up-to-date information of submitted for review, the effective rule to an irres ersible and irretrievable sign!ficance in both the health and does not delineate general requirements commitmellt of resources prior to the safety and the environmental areas is for environmental review. De Commis. submittal of the remainder of the re. appropriately f actored into the Commis. pion expects Dist the detaj!a of this re. Quired information that uould prejudlee ston's licensing decisions. Consequently, elew 5111 be handled oli a case-by-case the later resiew and deelston on such the effectise rule does not automatteally basis. With respect to its respons!bilities citernatise sites. By requirmg applicants immunize previously reviewed sites from under the National Histo-!c Presena. . to furnish information concerning their new regulatory requirements. Whether tion Act of 1966. as amended (16 # site selection process a i4rt of their later adopted regulatory requirements U.S C.A. 470 et seq.) ar.d the Archt.eo. request for early review and by provid. will be impored on a previously reviesed logical and Historic Preservation Act of ing for the findi.2gs descrited abose. the site il e., constitute significant new in. 1974 (Pub. L. 93-291,16 U S C A. 469 Commission expects to avoid signineant formatloa thst substantially affects the 469c). the Commission expects that any premature committnents of resources to trior conclusional will be decided based concerns relating to the preservation of sites w hich may prm e unacceptable on the content of the new requirement 4. historical, archaeological. architectural then compared with alternatise s!tes. Set eral commentors suggested the or cultural resources shich may arise Section 2 605 of the regulations also adoption of snore stringent standards during early review of sPe suitabluty proude s that the Commission may de. for reopening decisions, such as, for irsues will be handled in a sirnilar clme to initiate an early review or ren. example, the shoeng of a need to pro. Inanner. der pn early partial decision in cases vide substantial additional protection One of the comments suggested that there en early partial decision on any for the public heslth and safety or the the rule explicitly provide for joint hear. tuue or issues of site suitability sould common defense and security, the find. ings and increased coordination with the not be in the public interest considering ing required in 10 CFR I 50.109 to justify states The Cctnmission be:1 eves that ta + the degree of likehhood that any backfitting requirements. De Commis. dup!!cative environmantal assessments early findings on those issues sou!d re. sion believes that the standard enun. should be avoided to the extent prac. tain their vahdity in later reviews, abi clated in the proposed rule and largely ticable and that the coordination of fed. the objeettons. if any, of cognizant state retained in the effective rule will prove eral and state facility siting and en. or local gosernment agencies to the con. effective both in bringing significant new vironmental reviews should be en. duct of an early revies en thone issues, information to the attention of the couraged. c.nd ici the por.sible effect on the pub!!c Commission and in preserving, to the At the same time, the Commission 14 interest and the parties of having an fullest extent possible, the advantages. of the opinion that, at least in the im. carly, if not necessarily conclusive, res. frorn the standpoint of certainty, which mediate future, this objective can best clution of those issues. In this tec3rd, are expected to result f rom estly review, be achieved on a case-by. case basis. Ac. the ttess of appropriate Federal. State, hearing and partial decision on site suit. cordingly. no specine provisions respect. and local arencies would be considered ability issues. ing joint hearings have been included in in connection mith the initiation of any he effective rule elimin .tes refer. the effective rule. earli site review Fina!!y only one review ences to and attempts to distinguish be. The proposed rule would have of site suitability issues (either under tween full and partial s!!e approvals to amended 10 CFR 50.10(e) to extend the Subpart F of 10 CFR Part 2 or Appendix eliminate needless argument regarding Commission's authority to issue Ifm!!ed Q to 10 CFTt Part 50i could be con. the content of e " full' site approval and sork authorintions to applicants seek. duct"$ sith reFard to a particular site the relation betmeen site and design ing permits to construct production fa. prior to the f ull NEPA constnietion issues. Any effective partial decision on cilities such as commerchl isotopie en. permit renew. - one or more site suitability issues could richment plants and reprocessing plants. The Commission staf! mill follow still serve as the finding of general site and tating reactors. After further con. criteria similar to those in i 2 605 in suitab!Itty called for by 10 CFR 5010 sideration of this matter, this provision dettdmg a hether to prepare and issue a t e ) (2) (ii) depending on the nature and has been eliminated in the e!!ective rule Staf Site Report in response to a re. scope of the decision. While the effec. as premature and unnecessary. Quest submitted pursuant to Appendix the rule would allow completion of all In order to provide additional gu!d. Q or part of the National Environmental ance to persons who seek early review , Many of the comments favoring adop. Policy Act of 1969 (NEPA) environ. of site suitability issues in accordance tion of the rule considered its capacity mental impact statement at an earlier with the provisions of the effeettre rule, to >ield final dispositive decisions crucial point in time than would be the case if the Commission staff is simultaneously l to its success Several commentors sug. no estly site review were conducted. in issuing a report entitled "Early S!te Re. gested that approved sites ba " grand. Flo case could s limited work authoriza. Views for Nuclear Power Fae.lities" , I fathered" to insulate them from ntw tion or construction permit be granted (NUREO-0180) which describes pro. s regulatory requirements impreed during without a full NEPA environmental im. cedures to be followed by construction f the period the approval is effective. The pact statement De rule does not permit permit app!! cants and others and delin. 3 Commi=sion recognizes the importance any " gaps" in the environmental impact estes the nature and scope of some of j of final:ty in its decisions and has en. statement. the more significant areas of techniest deavored to assure this in substantial It is anticipated that environmental revir e. Copies of NUREG-0183 are avail. . measure by providing that partial deel. concerns 3111 play an important role in able for inspection by the public at the stons on site suitabihty issues will re. the consideration and resolutJon of s!!e NRC's Public Document Room at 1717 j main effectise for five > ears or until the tuttability issues. Applicants for con. H Street. NW., Washington. D.C., and concluuon of the construction permit struction permits sho request early re. at the NRC's Local Pub!!c Document
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proceeding. by specifying criteria for re. view of environmental site buttabihty Rooms. Copies of NUREG-0180 may also i opening site suitabihty decisions. and by issues w111 be expected to furnish infor. be purchased frc n The National Tech. 1 prorldmg that partial decisions and mation concerning the issues addressed. nical Information Service, Springfeld.
- Staff Site Iseports be as detailed and and the Commission sta.ff will conduct Virginia 22161. .
- exphett as possible The stature of a Pursuant to the Atomic Energy Act
- partial decision on site suitability issues its om assessmW and @w fohwing
- l of 1954, as amended. the Energy Re.
! is emphastred in the effective rule 'by procedures thr.t are consistent with the organization Act of 1974, as amended. .I
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) proudmg that the part'al decision shall review procedurcs prescribed in NEPA and Sections $52 and 553 of Title 5 of j be incorporated in the decLsion regarti. for envirorenental impact statements. the United States Code, the following , , l Mottat REGISTER. VOt. 42, NO. sF TMua5 day, MAY 5,19Fr 1
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RULES AND REGULATIONS 22685 amendments to Title 10. Chapter 1. Code (a) and (in the cue of a nuclear power {e (! Federal Regulations. Parts 2 and 50 reactorn 50 34a of t% chapter. - cre published as a document subject to (4) The informatan required for part 2 60e Partist g,,y ,, cecisions on ette suitatt; sty codification' tuo or part thren shall be submitted during the period the partial decision At ru erre see. set. Pub L e3-tc3, es l 2.101 ( Amended) on part one is effective. Submittal of the stat see (42 U s c. 220t h bet sc2 Pub.L. , I 1. In 6 2.101 of 10 CFR Part 2. para. Information required for part three may tl-190. 83 8 tat 853 (42 US C 43321. Sec. 201 a.s amended. Pub. L. 93-43s. 83 Stat 1242 graph (a) is amended by substituting precede by no more than six months or run L. es-te. es stat. 4:s t 42 e s c. 5341). ' the words " utilization facility shich is follow by no more than six months he subject to 5 51.5(at of this chapter and submittal of the information required MP8't (4.tional Procedures Appti. is of the type specified in il 50.214b) 121 for part two. (*uItjb ty su s i onn or (3) or 50 22 of this chapter or is a (5) Part four,'shich is only required on th an Apphcation for a Permit To Construct testing f acility" for the sords " nuclear when the app!! cation is for a construe. Certain Utilization Facilities poser reactor subject to i 51.Sta) of this tion permit for a nuclear power reactor. . chapter" wherever they appear, and shall include any information required $ 2.600 Scope of subpart. I paragraph tat (35 is amended by delet. by I 50 33a of this chapter and shan be ' Itis subpart prescribes procedures ap. I ing the language *as provided in para- filed in accordance with the time periods p!! cable to licensmg proceedings shich graph (a)t5) of this section" and sub. specified !n I 50.33a. involve an early submittal of site suit-stituting therefor the language "as pro- 3. In i 2.110 the section heading is re- ability information in accordance Mth vided in paragraphs (al tSt or ta-11 of vised. paragraph (a) is redesignated as 5 2.101(-1), and a hearing and early this section." paragraph (a)(1), new paragraph (an partaal decision on issues of site sulta.
- 2. A new paragraph (a 1) is added (2) is added. and paragraphs (b) and b!!1ty,in connection sith an application immediately af ter i 2.101 sal (Si of 10 tel are revised to read as foHon: for a permit to construct a utthzation CFR Part 2 to read as follows: $ 2.110 Filins and administrailie action facility s'htch is subject to i 51.5(al of 8 2.101 Filina of application. on submittate for design reilew o, this chapter and is of the type speciMed
* , , , , early reisew of site suitability issues. in i 50.21tb) E2h or (3) or 50.22 of this chapter or is a testing f ac'.11ty,
"
cb iss s A ppli ant for a co ( scept as specifically provided $ 2.601 A pplicahility rif other ecctione. struction permit for a utilization facility otherutse by the provisions of Appendix The provisions of Subparts A and O uhtch is subject to i 515(a) of this Q to Part 50 of this chapter, a submittal relating to apphcations for construction chapter and is of the type specified in pursuant to Appendix Q shall be subject permits and proceedings thereon apply, il 50 21(b) (2) or (31 or 50 22 of this to 12.101 (a)i21-(s) (4) to the same ex. rerpectively, to applications and pro. chapter or is a testing facility, may re. tent as if it were an application for a ceedmss in accordance sith this subpart, quest that the Commluton corduct an permit or license. except as specifically provided otherwise early retter and hearing and render an (b) Upon initiatbn of review b/ the by the provisions of this subpart. j eirly partial decision in accordance with staff of a submittal of a type described Cubpart F on issues of site suitabihty in paragraph (a)(1) of this section, the 5 2.602 Filing fee..
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eithin the purview of the applicable pro. Director of Nuclear Reactor Regulaticn Each appucation which contains a re. Visions of Parts 50, 51 and 100 of this shaU publish in the Frrta AL Recistra a quest for early review of site suitabihty chapter. In such cases. the applicant for nott:e of receipt of the submittal, intit. issues under the procedures of this sub-the construction permit may submit the ing comments from interested persons part shall be accomplanted by any fee infirmation required of applicants by within 60 days of pub!! cation or such required by I 50.30re) and Part 170 of the provisions of this chapter in three other time as may be specified, for con. this chapter. Cr (in the case of nuclear power reac- sideration by the staff and ACRS in their 8 2.603 Acceptance and docketinc of ap-tors) four parts: review. plication for early reiiew of site suit.
. (1) Part one shau include or be accom. (c) Upon completion of review by the ability feeues.
panied by any infotination required by staff and the ACRS of a submittal of the (a) Each part of an application sub. Il 50 34(a)(1) and 50 30(f) of this chap. type described in paragraph (a)(1) of tir shich relates to the issuers) of site this section. the Director of Nuclear Re. mitted in accordance with I 2.101'a-1) of this part sill be inittaUy treated as a suitability for shich an early review, actor Regulation shall publish in the tendered application. If it is determined hearing and partial decision are sought, FrerAL Rectsrta a determination as t that any cne of the parts as described except that information with respect to whether or not the design is acceptable, in 12101 n-1) is inecmplete and not tperation of the facility at the prcjected subject to such conditions as may be ap- acceptable for processing. the Director initial power level need not be supphed. propriate, and place in the Public Docu. of Nuclear Reactor Regulation wul in-tnd shall include the information re. ment Room an analysis of the design in quired by ll 50 33(al-fe) and 50.37 of the form of a report. form the applicant of this determination and the respects in shich the document this chapter. 'Ite information submitted 4. A new Subpart Fis added to 10 CFR is deficient. Such a determination of shaU also include (1) proposed findings Part 2 to read as fotows: cornpleteness wiu generaUy be made on the issues of site suitabuity on which
- e. within a period of thirty (30) days.
Pr the app!! cant has requested review and a sua.part c ,tr rP.,.Ad.diesenet.i pec e e.cedures en smeAppticabie atatement of the bases or the rea. sons for ii su tenisier
- a (b)(1) The Director of Nuclear Rene.
those findings. (til a range of postulated 8**w**g
, ,, Cyaa*g*jgth o,agp31utb*a"sE*J g tor Regulation will accept for dxket-recu ties ing an application for a construction facility desten and operatton parameters sec. permit for a uttitration fac1hty shich is that is suf?!clent to enable the Commis- 2 600 scope of subpc.rt. subject to i 51.5(a) of this chapter and slon to perform the requested review of 2 sos App!!cadtttty of other scettons is of the type soecified in iI 50 211b) (2) site suitability issues under the apDll- 2 602 F utng rees or (3) or n22 or is a testing f acility cable provisions of Parts 50. 51 and 100, 26o3 Acceptance and dockettng of appil. shere part one of the appheation as de-rnd (111) information concerning the ap. cation for earty rettew of site eutta. scribed in i 2.101(a-1i is complete Part plicant's site selection process and long. bitity smues. g g range plans for ultimate development of 2 So4 Nottee of bearing on application for g the site required by 5 2 603(b)(1) early rutew of ane euttabuny is. W come deu n cdh m-(2) Part two shall include or be ac. '" # *' " ** *"# '
g companted by the remaining information "
- g required by ll 50 30(f), 50 33 and 50 34 r a e natmett n penntt *Pp!!cau n in applicant's site selection process spec.
(a)(1) of this chapter. *
#
d ",', P,$$ Et sUpre o th [ arts o ## ' D'" "" (38 Part three sha!! include the re- and three by a period of frorn e months to involves the consideration of alternative matning information required by iI 50.34 s years sites, explains the relatloaship betseen FIDis AL RIGilrIs, VOL. 42, NO. s7-THUs5D AY, M AY 5,1977
22856 RULES AND REGULATIONS that process and the applic: tion for (c) Any person who was permitted to early reslea of site suitabihty issues. and intervene as a party pursuant to the ini. vahdity in later reviews, (2) the objee-brieft) describes the appheant's long. Liai notice of hearing en site suitabihty tions, if any, of cognizant state or local rtnge rlans for ultimatr development of issues and who was not dismissed or did government agencies to the conduct of the site. Upon assignment of a docket
' number, the procedures in i 2101(at (3i not withdraw as a party may continue to an early review on those issu participate as a party to the proceeding the possible effect on the pub!!c int < rest and tal(4) relating to formal docketing with respect to the remaining unresobed and the parties of having an early, if not necessarily conclusive, resolution of <
and the submission and detribution of issues, provided that within the time pre- those 14 sues.
- addat onal copies of the application shall scribed for filing of petitions for leave to .
be follosed intervene in the supplementary notice of g SM16 FacsM Jari4,ns on elle suis. I (b)(2) Additional parts of the appil- bearing, he files a notice of his intent to abiliy Amee. - cation will be docketed upon a determi- continue as a party, along with a sup. (a) The provisions of Il 2.754. 2.755, n: tion by the Director of Nuclear Reac- porting aSdavit identifying the specific 2.760, 2.761, 2.762, 2.763, and 2.764 < a n h t l tor Regulation that they are complete, aspect or aspects of the subject matter sha!! apply to any partial initial deci.
- ten If part one of the application is of the pro
- eeding as to which he wishes sion rendered in accordance sith this j docketed. the Director of Nuclear Re. to continue to parucipate as a party, and subpart. Paragraph 2.764fbe shall not e.ctor Regulation si!I cause to be pub. setting forth with particularity the basis apply to any partial initial decision ren.
hshed in the Frerm, Rectstra and send for his contentions sith regard to each dered in accordance with this subpart. i ' to the Oosernor or other appropriate such aspect or aspects. A party sho fUes No hmited work authorization may be , ! ement of the State in shich the site a nontimely notice of intent to continue issued pursuant to i 50.10(en of Part 50 is located. a notice of docketing of the as a party may be dismissed from the of this chapter and no construction per- , cpptteaticn thich states the purpose of proceeding, absent a determination that mit may be issued without completion
- the cpp!! cation, states the location of the the party has made a substantial show- of the full review required by section proposed site states that a notice of ing of good cause for fa!!ure to fue en 102f2) of the National Envircnmental hearing will b'e published, requests com- time, and with particular reference to the PoII:v Act of 1969, as amended. and Part l
ments within 120 days or such other time factors specifled in ll 2.714 talt!>-(4) 51 of this chapter. The authenty of the ' es may be speciNd on the initiation or and 2.714(dl. De notice will be ruled Commission and/or Appeal Board to re. cateome of an early site review from upon by the Commissien or atomic safety view such a partial initial decision sua . Federal State and local agencies and and licensing boarct designated to rule on sponte, or to raise sua sponte an issue interested persons, and in the case of petitions for leave o intervene. mat has nd Men raised W the pam t
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apolications filed under section 103 of (d) To the max.num extent pract!. will be exercised within the came time states that a person sho wishes ; theh ne to Act"his vies s on the antstrust aspects safety and cable, the members licensing 3 of the bord designated atomic period to relating as in the case of a full decis the issuance of a construc- , of tl.e application presented to the At- preside in the proceedins 3n the remain. Uo,n torr y General for consideration shall ing unresolved issues pursuant to the sup- b 1) I partial decis!on on one or submit such viens in accordance with a plemental notice of hearing will be the more site suitability issues pursuant to i I subsequent notice that s111 be published same as the membership designated to the app!) cable prwisions of Parts 50,51. ,
,
in the Ftornat Rrcisrrn. In the case of preside in the initial notice of hearing on and 100 of this chapter issued in accord-I a nuclear pou er reactor, such subsequent site suitabihty issues. ante with this subpart shall (in clearly
,
j g nottre will be pubhshed following sub- $ 2.603 Additional considera tione. is n of the information required by cision applies and fiD indicate to what -
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(a) The Commission 3111 not conduct extent additional information may be s , l2408 Sotice of hearing on application rnore than one review of site suitability needed and additloaal review may be re- - l issues sith regard to a particular site quired to enable the Commission to de-I for earls I"u n. reden of site suitabiliiy prior to 911ng and review of part two termine in accordance with the provi- , tai Where an app!!: ant for a (on. (a-1) of theofappbeation this part. described in 12.101 sions of the Act and the applicable pro- ' Visions of the regulations in this chapter structien permit for a utthzation fact!!ty (b) ne Commission. upon its own ini- shether a construction permit for a fa.
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subject to this subpart requests an early tlative, or upon the motion of any party cility to be located on the site identifled review and hearing and an early partial to the proceeding fued at least sixty (60) in the partial decision should be issued j
,
decishn on issues of s!!c suitability pur- days prior to the date of the commence- or denied. suant to l 210lta-1), the provisions in ment of the evidentiary hearing on site (2) Mesing compteuon of Commt% the notice of hearing setting forth the suitabihty issues, may de:Lne to initi- slon or Atomic Safety and Licensing Ap-mattm of fact and law to te considered. Cs trquired by 9 2.104. shall be modined partial ate an decision early bearing or render on any anissues issue or early peal B:ard review, of partial as appropriate. initial decision of the of the Atomic so es to relate only to the site suitability site suitabibty: Safety and Licensing Board, after hect-gvue or issues under review. (1) In cases there no partial decision ing. on the site suitability issues. th' *ar-(bt Af ter docketing of part two of the c?nhettion. as pro ~1ded in Il 2101(a-1) on the relative merits of the proposed t.tal decislen shall remain in eSect el"ther cnd 2 603, a supplementary nottee of site and alternative sites under Part 51 * #"# #"
.#"*""'*.
- hearme si!! be published pursuant to is requested, upon determination that ** "* * * # "' # ' # **
there is a reasonable I!kehhood that fur- """" , l 2104 sith respect to the remaining un- ther review would identify one or more m a a n as J resobed issues in the proceeding 31 thin preferable alternative sites and the par- M e ni R (s-D, untu tM pro-the scope of I 2104 Such supplementary tial decision on one or more site suit- c g for a mmn 2 cushet a facU. notice of hearing will provide that any abihty issues would lead to an irreverst- ity on the site identified in person whose interest may be anected by ble and irretrievable commitment of re- decision has been concluded,,the unless the partial the proceeding and who desires to par. sources prior to the submittal of the Commission. Atomic Safety and Licens- , ticipate as a ratty in the resolution of remainder of the information required E ^ E # *' '" *# "# "" , the remaining issues shall fl!c a petition by I 50.30(f) of this chapter that would ##"" # #" ' # " "" " """ - for leave to intersene pursuant to l 2.714 prejudlee the later review and decision "#"*"" " E" ## #
- ithin the time prescribed in the notice, on such alternative sites: or I$
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uch suppitmentary notice will also pro- t!fn t u hec ' (2) In cases where it appears that an vide tppropriate opportunttles for par- early partial decision on any issue or ticirstion by a representative of an in- Issues of site suitability would not be in
- E*'"'I d"# " "** """*D""
terested state under 12 715(c) and Sr the publi: interest considering (1) the ' " ' * * " " '#"**d'"*'""I * '
.inuted 3- appearances pursuant to l 2.715 degree of !!kelihood that any early find- '
hNenItYat a st serYe fa r r the ings on those issues would retain their dectston on s specifte ette laeue(s).
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HolsAt REGt1Tle. VOL 42, NO. 87 THutsoAY, MAY s.1977 l
I r l I e ! RULES AND REGULATIONS s
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22857 earlier cenclusions and reopens the hear- or fnitigate the consequences of postu. This appendis does not apply to p ing p uant to subpart r of Part 2 goodrecord on sitethe cause shown, suitability Commission issues may risk Upon to thelated health accidents and safetythat of the could cause undue $"tdc'hsp Extend the fhe 3 ear period during thich public" for the tords are not subject I. Any person snay submit Information re. a partial decision shall remain in effect to the provisions of Appendix B"in para- garding one or more alte suitability issues to for a reasonable period of time not to graph (el(1); by substituting the word the commission's star for sta reuew sepa. exceed one year. rately frem and prior to an app 11:stion for
- reactor" for the words
- nuclear poser a construction permit for a facitity such a 5 2.761a ( Amended) reactor" In paragTaph fel(2); and by subtr.ittal ahatt be accompanted by any fee
- 5. Section 2'l6ta of 10 CFR Part 2 is substituting the words " prevent or miti. '*4u'"d *r PS't 370 of *b88 ch*Pt'r and tmended by substituting the words *utt- gate the consequences of postulated ac- NQ,$', 8 ,d, I,h'dlg*,"f cidents that could cause undue risk to ,
lization facility t hich is subject to the health and safety of the public" for permits by 16 60 33 tap-tes and tel. and. In. i51Stal type of this in specified chapter, 19 50.211b) and is(2) ofor the (3)the words "are subject to the provisions sofar na at re:ates to the tsauets) of atte suitabutty for =breb early review to sought, er 50 22 of this chapter or is a testing of Appendix B** in paragraph (ei t3)(1). tsy li so 34 tat ti) and 60.30tri, except that
- 8. In i 50.33a of 10 CFR Part 50, the information with respect to operation cf the' f actitty." for the nords " nuclear power phrase "Any person" in paragraph (by faculty at the projected intttat poser leve reactor chapter." subject to i 51.5tal of. this is changed to the phrase *Except as pro- Dd vided in paragraph tdl, any person ,and 2 tw W W d a 6 Paragraph Ite) of Appendix A to a new paragraph (d) is added to read as auttabiltty tasuus) oball be made in the Part 2 is revised to read as follows: follows: name manner and sn the sa:ne number of copies as pr3vided in I so 30 es). (c)(t) and ArrrNrIx PoucT AND A-ST PPocATEEDU vrRE;N TCoNDrcT or OENERAL or $ $0.33a Information required for enti. $H3 ' ' sb Paoct retNcs rom THE Isst* A NCE or trust resiew. eb [nelude NP cten "b 'u e e o e e Cerf. tog a ran;f of pcstulsted faCllity design CoNsurcT1oM PERMITS AND OPER ATING and operation parameters to enable the Staf Lrcrosts ron PaoorefroN AND 137111* (d Any person who app!!es for a to perform the requested rev!ew of site sult.
ention FACILr71ts roR WlOCH A III AR* Class 103 constme%n permit for a nu* attitty tarses. ne submittal aball contain ING 1s Rtc.r1Rrp UNDER SECTION 189a. clear poner reactor pursuant to the pro- suggested conclusions on the issues of site of THE ATouse ENrncy Acf or 1954 visions of I 2.101(a-1) and Subpart F of auttability submitted for retter and shall be
^5^** accompanted by a statement of the bases or Part 2 of this chapter shall submit the the reasons for those conclusions ne sub.
* * * *
- document title "Information Requested by the Attorney General for Antitrust mittat anyabau long also ran etat. to the estent objecttres poistbie.
for ultimate de-I. ParLIMINARY MATTERS e e e e Review" at least nine (9) months but not set perent of the site. state shether any site e * (c) (1) The Commission or the Atomicmore filing than of partthirty-six two or part monthsthreeprior of the to the fu(' '!Ia$' any ed IenParing t Safety and Licensing Eoard rnar cona!ger application, whicheter part is filed first- usec and erp:sta shat cons:deratten, if any. on their can initiathe. or a party may re. as specified in i 2.101(a-1) of this m as rtren to a:ternattre attes quest the Commisston or the board to con. ch a pter.
- 3 ne star sha11 pubitsb a nottee of dock-sider, a particular !? sue or trsues separately eung of the submittal in the Fur.au Ras.
frem and prior to, other issues relaung to 9. In i 50.55a of 10 CFR Part 50 para. isrrn, and sha:1 send a copy of the nottee the efect of the construction and cr opera
- graphs tc) t3). (di t 3). (e)(3), and (f) of docketing to the oovernor or other appro.
tien of the faenity upon the pub!!c health 43), and th) are amended by changing priate metal f the state in absch me site cnd " I' # D U " * '* 'D*" 'd " "If * ' I** end safety. the ecm non tne enstronment or defense in regardand to security. the phrase "the formal docket date of..the cation ants. application for construction perrnit to of the s!te ' brie!!y dee.cribe the site trust considerations If the Commission or the formal docket date? cf the appilCa* suitabt!!ty issue (si under rester, and ins tte the board determtres that a separate hear. tion for a construction permit" wherever comments from Federa!. State, and local agenclea and interested perscna mithin 120 int other or should a,, b*, W;- the notice of bearing it appea.rs, and adding a new footnote 8 dans of pubitcatics or auch ot.ber time time and place of the separate' e9te A tngthe on to read as followS: may be specided, for cons!deration by the such 1ssue or tsaues The board designsted 6 50.55a Codes and standard.. sta! in concection with the inttistan or to conduct the hearing s!!! tssue an inittat e e e outceme of the review and. tf appropriate dictsten. if deemed arpiopriate, which wt:1 e e by the ACRS. In conneetton with the out-be dapoetttre of the issuets considered at 10 A new Appendix Q is added to 10 e me f 2Mr nete*. ne pen nqunung the hen.rtcg. In the absence of an appeal or CFR Part 50 to read as follows: review abatt serve a copy of the submtttal en Commissten er Appeal Board retter pur. the oovernor or other appropriate cmeta of susnt to 4 6 2 760 and 2 762, before the bear. ArrENDix Q-Par-APPLICA73 ors EADLY the State in a htch the s!!e is located. and tr.g on, and ces sideration of the remaining Rtyttw or SIrr St f7AstLitr Isst*ss *""''''"""*#'h " " "I' 'P'" ' T '" twuem in the proceeding shich the atte is located cr.'if the s!!e is not
- 42) In a proceerling relating to the issu. fl!!n.g. 'Ihts appendts sets Sta: rettew, and outreferral procedures to theforAd.
the located in a municipality. on the chief esec. ence of a construction permit for a factitty visory comnuttee on Reactor Bateguards of uttre of the county. The portion cf the sub-which is subject to the enttronmental Mm. requesta for early retter of one or more site trJttal contatning information required of applicanta for constructlen permits by fact staternent 102 2)iC) requ!rements of the National of section Entarenniental and suitabilityissues operation of certattrelating ututtauonto fthe construction Il bo 33taHe) and te) and 50.34 a)I!) acutues IYitey Act et 1969 and Part St of this chapter and shtch is a utturetton factitty for todus, separstely froth and prior to the Reactor submittal of be referred Safeguards ( ACRS) forto the Adviscry a review and Co applications for construction permits for the repcrt. There m!!! be no referral to the ACRS trial or commerclat purposes or is a testing fact:stles Tbts appendia also sets out proce. unless early rettew of the s factitty, separate hearings may be held and dures for the preparation and tasuance of under i So34ta)(3) is requested. C2ctstons may be issued on National Environ. Staff Site Reporta and for their incorporation mental Policy Act and ette suttablitty issues by reference in app!! cations for the construe. 4 Upon completion of restew by the stai end other =r actfted issues as provided by tion and operation of certain uttttzauon fa- and. If appropriate by the ACRS, of a sub. Rubpart F ar.J t 2 7Cla mittal under this appendts. the stai shall cilities. The ututzstion factllties are those prepare a Sta!? Site Report abich sha:1 iden. [ 50.10 [ Amended] which are subject to l SI St a) of 'his chapter lify the location of the site. state the site
- 7. Paragraph ten of I 50.10 of 10 CFR and are ' of the
type spectfted in 5 50 21tb) suitabt!!ty issues rettened. esp:atn the na-
'""'"""8'"""
Part 50 is amended by substituting the " ' " " E' #"'"#****""* cautions of the stat regard::.'g the issues re. Cords *utilkation faellity shich is sub. .
'Where an application for a construction vie.ed and state the reasens fer those cen.
ject to 5 515(a) of this chapter, and is permit is submitted in four parts pursuant clusions.17pon tasuance of a Stag S:te Re. of the type speciard in Ii 50.21(b) or 13) or 50 02 or is A testing facility n F of (2) to the provtstons of I 2 tolta-1) and subpart port. the star shall pubitsh a nottee of the Part 2 cf this chapter. *'the formal docket avattabtitty of the report in the Frcra*L Rtc. for the words " nuclear power reactor **" n.frpu w nI ne appHeauen for a construcuon isTTa and shall place copies of the r subject to the provisions of I 51.5(a) of Mm f Ws neuen s all be ne CommissicWs PubHc humnit Roem at this chapter s.herever they appear; be the date of docketing of the Information re. im H Stnet. W. WasNngton. D C 2W. o substituting the words "do not prever4 qutred by 12 solta-1) (2) or (3), whichever and in a local Publt: Document Roemis t to-is later. cated near the site identifted in the Stai Site Report. The Stas shall also send a ecpy it0tt At tici$ita, VOL. 42, NO. 87 THUt5 DAY, M AY 5,1977
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22988 RUtES AND REGULATIONS of the report to the oeverner or other op. under thte Appendt where it appears that. Dated at Washington, D C., this 29th prepriata o*clal of the State in ableh the (a) in ceaea where no review of the rela. stis is located. and to the chief esecutive of tive mertta of the submitted alta and alter. day of April 1977' th) muntetpatify in which the site La located native sites unc;er Part 61 to requested there For the Nuclear Regulatory Commis. or, if the site is not located in a munie pal. to a reasonable .lueithood that further stas Ston. 117. to the chief esecutive of the county. review would identify one or more prefer. 8 Any StaM fite Report prepared and 1s. ab'e alternattee attet and the Staff reefew BAlft*EL J. CH!tM. eued in accordance aIth this appendts may of one or more site suttab!!!ty l'oues would Secrefdrp of the Commission. be incorporated by reference, as appropriate. lead to en irreverstbte and irretrieva. in an app;ttation for a construction permit ble commitment of resources prior to tais p p ,97 . M 6 M M 7*to m m l
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for a uttitration f art!!ty which is subject to submittal of the analysts ef alternative estos 158 5tal of this chapter and la of the type in the Environmental Report that would spectfled in ll 60 21(b) (2) or (3) or 80 22 prejudice the later rettew and dectaten on Title 45-Public Welfare e,f this cha?ter or is a testing facility. 'Its atternative sites under subpart P and/or o cinctuatons of the Stai Site Report st!! be of fart 3 and Part 51 of this chapter; or (b) reenamined by the stai where See years or in cases where,in the judgment of the Stafr. SUBTITLE EDUCATION. AND ADMINISTRATION A-DEPARTMENT WELFARE, GENERA OF HE more hate eWpwd betseen the issuance of early review of any site suitability tasue or is. the Sta! Site Report and sta incorporation nues s culd not be in the pubtle interest. con- PART 84-NONDISCRIMINATION ON THE by reference in a construction permit op, eldering i1) the degree of 11kelihood that any pttration early findings on those taeues would retain BASIS OF HANCICAP IN PROGRAMS 6 Issuance of a Stat Site Report shalt not their vaJtdtty in later rettees. (2) the objec- AND ACTIVITIES RECEIVtNG OR BENE. conettrute a commitment to issue a permit tions. If any, of coghtrant state or local gov. FITING FROM FEDERAL FINANCIAL or Ittense. to permit on.stte sort under ernment agencies to the conduct of an early AS$1STWE 6 5010'er. or in ano s ay aMeet the author. review on tbore taaues, and (3) the possible Correction Itv of the Commi*uon. Atomte Safety and efect on the public interest of hating an Licensing Arpmt Dwd Atomic Safety and early. if not necesaartly conclus!ve, resolution b FR Doc.12620 appearing at page Ltre .Ong Beseds. and other presiding oMicers of those issues. 22676. In the issue of Wedr.esday, May 4, up tP d/or O obar(s o$t tscNpter EEcetive date: These amendmenta be. 1977, in the fniddle column on page
'T The stat sta not conduct more than ceme e5ective June 6.1977. .
22685. the Incorporation by Reference one feriew cf site suttabittty Loues with re. (Sec.161. Pub. L. 83-703. 88 Stat. 948 (42 note. now appearing under the heading raid to a partleutst site prior to the full con. U S C. 2201): Sec.102. Pub. I. 91-190. 83 I B4 61 Procedures, should be trans. strurtlan re mit rettew requirec by Part St. Stat. 853 (42 U.S C. 43321: Sec. 201, as The sts5 mar der!tne to prepare and tatue a amended. Pub. L. 93-438. 83 Stat.1242. Pub. ferred down below the heading { { 84.62-Sta3 516e Report in response to a submittal L. 94 'f9. 89 Stat. 413 (42 US C. 6341).) 84.o9 [Resert ed). V
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APPENDIX II NUCLEAR LICENSING APPLICATION WITHDRAWALS
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NUCLEAR POWER _ PLANT _ CONSTRUCTION PERMIT APPLICATION WITHDRAWALS Date of Prejudicial Fed. Reg. Cite Dismissal Status Utility Unit (s) NRC Docket Number (withd awal notice) (withdrawa., 'equest No action yet --- Alabama Power & Light Barton 1-4 50-524-CP;50-525-CP; 50-526-CP;50-527-CP lodged with NRC on 12/24/80 no notice given yet) STN-50-592;STN-50-593 45 Fed. Reg. 7354 September 27, 1979 Without Arizona Public Service Palo Verde (Feb. 1, 1980) 4& 5 (as yet unpublished) April 9, 1981 Without Delmarva' Power & Light Summit 1& 2 50-450:50-451 45 Fed. Reg. 48754 July 14, 1980 Without Detroit Edison Greenwood 50-452350-453 (July 21, 1980) 2& 3 46 Fed. Reg. 12374 January 15, 1981 Without Jamesport 50-516;50-517 LILCO (February 13, 1981) 1& 2 ~ 45 Fed. Reg. 7356 . December 26, 1979 dithout New England Power NEP 1 & 2 STN-50-568;STN-50-569 (Feb. 1, 1980) 45 Fed. Reg. 80383 November 6, 1980 Without New York State E & G New Haven STN-50-596;STN-50-597 1& 2 (Dec. 4, 1980) 50-496-CP;50-497-CP 46 Fed. Reg. 20342 March 25, 1981 Without Wortheast Nuclear Montague (April 3, 1981) Energy Co. 1& 2 46 Fe3. Reg. 11746 February 3, 1981 Without Northern States Tyrone Energy STN-50-484 Fark I (February 10, 1981) Power Company
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Fed. Reg. Cite Date of Prejudicial NRC Docket Number (withdrawal notice) Dismissal Status Utility Uni t ( s[ i I Erie I s 2 STN-50-580;STN-50-581 45 Fed. Reg. 7356 January 28, 1980 Without Ohio Edison (Feb. 1, 1980); also 45 Fed. Reg. 29147 (May 1, 1980) 50-548-CP 46 Fed. Reg. 1850 December 22, 1980 Without l Omaha Public Power Fort Calhoun District 2 (Jan. 7, 1981); also 46 Fed. Reg. 10577
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Philadelphia Electric Fulton 1 & 2 50-463-CP;50-464-CP 46 Fed. Reg. 15395 February 27, 1981 With (March 5, 1981) , Potomac Electric Douglas Point 50-448;50-449 45 Fed. Reg. 37312 May 27, 1980 Without 16 2 (June 2, 1980) PASNY Greene County 50-549 (Withdrawal reque.t No action yet lodged with NRC on i 10/20/80; no not*ce given yet) . Public Service E & G Atlantic STN-50-477;STN-50-478 44 Fed. Reg. 17604 February 15, 1979 Without i 162 (March 22, 1979) i
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Puerto Rico Electric North Coast 1 50-376-CP 46 Fed. Reg. 14099 February 18, 1981 Without
- Power Authority (February 25, 1981)
I December 22, 1980 Without San Diego G & E Sundesert 50-58 2-CP; 50-58 3-CP 46 Fed. Reg. 1851 i
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16 2 (Jan. 7, 1981); also 2 46 Fed. Reg. 3690 , (Jan. 15, 1981) I
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Date of Prejudicial ! Utility. . Unit (s) NRC Docket Number (withdrawal notice) . Dismissal Status j I 4
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t t i Toledo Edison Davis-Besse 50-500:50-501 (Withdrawal. request
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DecenOer 1, 1980 . Without '
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2s3 lodged with'NRC.on (partic1) '.} j
11/17/80; partial .; j dismissal on 12/1/80) ; i
disconsin Electric Haven STN-50-502 45 Fed. Reg. 60064 . July 30, 1980 Without l i
. Power (Sept. 11, 1980) {
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION & Before the Atomic Safety and Licensing Appeal Board In the Matter of ) PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. (Fulton Generating Station, Units 1 and 2) ) 50-463-CP, 50-464-CP CERTIFICATE OF SERVICE I hereby certify that I have served copies of the Brief of the Applicant, Philadelphia Electric Company, on Exceptions From the Decision and Or6er of the Atomic Safety and Licensing Board on the following persons by U.S. mail, first class, postage prepaid, this date: Richard S. Salzman, Esq. Joseph R. Gray, Esq. Atomic Safety and Licensing Counsel for NRC Regulatory Appeal Board Staff U.S. Nuclear Regulatory Office of the Executive Commission Legal Director Washington, DC 20555 U.S. Nuclear Regulatory Commission Dr. W. Reed Johnson Washington, DC 20555 Atomic Safety and Licensing Appeal Board Mr. Gustave A. Linenberger U.S. Nuclear Regulatory Atomic Safety and Licensing Board Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555 Christine N. Kohl, Esq. Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555
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l l Atomic Safety and Licensing Appeal Board Panel York Committee for a Safe U.S. Nuclear Regulatory Environment Commission Dr. Chauncey R. Kepford Washington, DC 20555 433 Orlando Avenue State College, PA 16801 Docketing and Service Section (7) Office of the Secretary Theodore A. Adler, Esq. U.S. Nuclear Regulatory Widoff, Reager, Selkowitz Commission & Adler Washington, DC 20555 P.O. Box 1547 Harrisburg, PA 17105 Eugene J. Bradley, Esq. Philadelphia Electric Company Executive Direct.or 2301 Market Street Susquehanna River Basin Philadelphia, PA 19101 Commission 1721 N. Front Street Michael J. Scibinico, Esq. Harrisburg, PA 17102 Special Assistant Attorney General George L. Boomsma Department of Natural Resources Save Solanco Environment Tawes State Office Building Conservation Fund Annapolis, MD 21401 P.O. Box 64 Quarryville, PA 17566 Hugh K. Clark, Esq., Chairman P.O. Box 127A Dr. A. Dixon Callihan Kennedyville, MD 21645 Union Carbide Corporation P.O. Box Y Dr. Donald P. deSylva Oak Ridge, TN 37830 Associate Professor of Marine Science Paul K. Allison, Esq. Rosentiel School of Marine and Allison & Pyfer Atmospheric Science 128 N. Lime Street, Box 1588 University of Miami Lancaster, PA 17604 Miami, FL 33149 Gilbert G. Malone, Esq. Lawrence Sager, Esq. Ports, Beers, Feldmann & Malone Sager & Sager Associates 145 East Market Street 45 High Street York, PA 17401 Pottstown, PA 19464
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1 Jean Royer Kohr, Esq. James A. Humphreys, III, Esq. Minney, Mecum & Kohr Barley, Snyder, Cooper & Barber 150 E. Chestnut Street 115 E. King Street Lancaster, PA 17602 Lancaster, PA 17602 3 8
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Donald P. Irwin Counsel for Philadelphia Electric Company DATED: April 27, 1981 ,
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