ML18192A711

Applicants' Response to Petition to Intervene

ML18192A711
Person / Time
Site:	Palo Verde
Issue date:	02/10/1975
From:	Gehr A, Norton B, Wheeler S Arizona Public Service Co, Snell & Wilmer, LLP
To:	Atomic Safety and Licensing Board Panel
References
Download: ML18192A711 (40)

Text

" UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of ARIZONA PUBLIC SERVICE COMPANY, et al.Palo Verde Nuclear Generating Units 1, 2)))))3))Docket Nos.STN 50-528 STN 50-529 STN 50-530 APPLICANTS'ESPONSE TO PEI'O'O'R E For their response to the Petition to Intervene of Arizona Clean Energy Coalition (ACEC), Applicants ARIZONA PUBLIC SERVICE COMPANY, SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, TUCSON GAS g ELECTRIC COMPANY, EL PASO ELECTRIC COMPANY, PUBLIC SERVICE COMPANY OF NEW MEXICO and ARIZONA ELEC-TRIC PONER COOPERATIVE, INC., admit, deny, allege, and move as follows: Applicants allege that portions of the Petition con-stitute attacks on the rules and regulations of the Nuclear Regulatory Commission (NRC), which are barred by 10 CFR 52.758 From consideration in this initial licensing proceeding.

Union of Concerned Scientists v.AEC, 499 F.2d 1069 (D.C.Cir.1974);~Ecolo Action v.AEC, 492 F.2d 998 (2nd Cir.1974).(a)'The allegation respecting the completion of a safety research program on outstanding generic safety problems which S I have been noted by the Advisory Committee on Reactor Safeguards (ACRS)before undertaking construction of the Palo Verde Nuclear Generating Station (PVNGS)(PI, p.4)is an attack on 10 CFR 550.35.See~Lon Island~Li ht'in Co.(Shoreham Nuclear Power Station), ALAB-156, RAI-73-10, 831, 844 (October 26, 1973);Wisconsin Electric'ower

'Co.(Point Beach Nuclear Plant, Unit 2), ALAB-137, RAI-73-7, 491, 507-8 (July 17, 1973);and Consumers Power Co.(Midland Plant, Units 1 and 2), ALAB-123, RAI-73-'5, 331, 349 (May 18, 1973).Accordingly, this allegation should be stricken from the Petition.(b)Allegations respecting accident analysis techniques and the lack of conservatism of the"single-failure" criterion (PI, p.4)constitute an attack upon 10 CFR 550, Appendices A and K, as well as Regulatory Guides 1.53, 1.70 and 4.2.Accord-ingly, these allegations should be stricken from the Petition.(c)It is alleged generally that"neither the PSAR nor'he AEC regulations adequately address" problems of maintaining security of materials and protection against sabotage.(PI, p.23, lines 10-29).The allegations as they relate to the PSAR are an attack on 10 CFR SSSOs13 and 50.34(c).The balance of the allegations are an explicit attack on the Commissioner's

.security regulations 10 CFR Part 73.These allegations should accordingly be stricken.(d)Petitioner alleges that Applicants have failed to ade-quately evaluate seismic activity in the Applicants'R (PI, p.

29).This allegation is an attack upon 10 CFR Part 100, App.A.Moreover, the reference to the ER is misleading as the seismic evaluations required by 10 CFR Part 100, App.A, are set forth in detail in PSAR 52.5 (Vol.II)and appendices 2J through 2N, inclusive (Vols.V-X).Applicants allege that many of the allegations of Petitioner are not properly before this Board as a matter of law.Applicants respectfully move that the Board strike the following allegations from the Petition: (a)The Petition under captions"Alternative Reactor Types" and."Alternative Safety Features" (PI, pp.1-3)asserts that consideration must be given to alternative reactor types and safety features because variations in safety margins could impact on public health and safety.The assertion is made under the guise of National Environmental Policy Act (NEPA)requirements by relating safety issues to environmental impacts, apparently in recognition that the Atomic Energy Act of 1954, and the Com-mission's regulations thereunder, require no more than a demon-stration that the reactor design selected, including all of its incorporated safety features, meet the design criteria established by the Commission.

However, the contention that consideration of alter-native reactor types and safety features is"mandated" under NEPA should be scrutinized under the"rule of reason" estab-lished by NRDC v.Morton, 458 F.2d 827, (D.C.Cir.1972)and I

elaborated further by the Commission and the Appeal Board in numerous cases.When examined under the"rule of reason", the alternative contentions should be stricken.Paragraphs (a), (b), (c), and a portion of (e), page 3 of the Petition, are nothing more than attacks on 10 CFR 850.46, Acceptance Criteria for Emergency Core Cooling Systems (ECCS)for Light Water Reactors, or an attempt to expand the scope of environmental, reviews to include"Class 9 Accidents".

In the one case the attack is barred by 10 CFR 52.758.Union'of Concerned Scie'ntists v.'A'EC, 499 F.2d 1069 (D.C.Cir.1974);~Ecole Action v.AEC, 492 F.2d 998, 1002 (D.C.Cir.1974);Consolidated E'dison'o.(Indian Point Station, Unit No.2), ALAB-188, RAI-74-4, 323, 329-32 (April 4, 1974);Vermont Yankee Nuclear Power~Cor.(Vermont Yankee Nuclear Power Station), ALAB-179, RAI-74-2, 159, 161-63 (Feb.28, 1974).And in the other case by several Commission and Appeal Board Decisions.

Consolidated Edison Co.(Indian Point, Unit 3), CLI-72-29; Vermont Yankee Nucle'ar'ower

~Cor.,~su ra, at 162-63;Alabama Power Co.(Joseph M.Farley Nuclear Plant, Units 1 and 2), ALAB-182, RAI-74-3, 210, 220 Plarch'7, 1974);~Lon Island~Li htin Co.(Shoreham Nuclear Power Station), ALAB-136, RAI-73-10, 831 (Oct.26, 1973).In the latter case the Appeal Board stated: As put to us, this assertion brings into question.the comprehensiveness of the environmental review mandated by NEPA--'.'.e., whether it must include all theoretically possible environmental effects arising out of an action, or whether it may be limited to effects which are shown to have some likelihood of occurring.

NEPA itself supplies lit-tle guidance in this respect, providing l S only that the environmental effects of a proposed agency action must be discussed"to the fullest extent possible" through the medium of a"detailed statement".

But there has been clear judicial sanc-tion of a"rule of reason" in the appli-cation of NEPA.See N.R.D.C.v.Morton, 488 F.2d 827 (D.C.Cir~l972.The rea-sonableness standard was specifically involved in EDF y.~Cor s of En ineers, 348 F.Supp.916 (N.D.Miss.1972 , where the court required a statement assessing the impact of a facility to contain a d'f h~f'of the'obab'le environmental impact of the propose agency action.The court found no necessity for the agency to consider what that court de'scribed as"mere possibilities unlikely to occur as a result of the proposed activity." That description fits the Class 9 accident.In the absence of a showing that, with respect to the reactor in question, there is a reasonable possi-bility of the occurrence of a particular type of accident generically regarded as being in Class 9, NEPA does not require a discussion of that type of accident.It does not require an impact statement or a licensing board to exhaust all theo-reticaly possibilities, whether or not they have been identified by a party.RAI-73-10 at 834-36 (footnot'es omitted).See also, Carolina Environmental

~Stud~Grou v.United States, No.73-1869 (D.C.Cir.Jan.21, 1975), 1975 CCH Atom.En.L.Rep.para.4115.It follows from the foregoing that if the conservatism in 10 CFR 550.46 (even more conservative than the Interim Accep-tance Criteria)renders a pressure vessel rupture or any other Class 9 accident so remote that its environmental effects of the latter need not be evaluated, then a discussion of alternative designs which may have varying safety margins would also be 1

fruitless and not required under the"rule of reason" require-ments of NEPA.Further, it should be noted that Regulatory Guide 4.2, designed to meet the Council on Environmental Quality (CEQ)Guide-lines for Preparation of Environmental Impact Statements, does not"mandate" consideration of the alternatives as the Petition to Intervene asserts.(b)The foregoing analysis is equally applicable to the generalized allegations found at PI, p.4, lines 12-16, and the allegations under the caption"National Security Considerations" (PI, pp.23-24)which are nothing more than an attempt to argue the Class 9 accident.(c)In respect to the allegation entitled"Underground Siting" (PI, p.3), the'recent decision of the Appeal Board in S'outh'em Cali'for'n'ia Zdis'on'Co.,et'al., (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-248, RAI-74-12, 9S7, 974 (December 24, 1974), affirmed the Licensing Board's finding that underground siting is not a practical alternative.

Accord-ingly, said allegation should be stricken from the Petition.(d)It has been held that circumstances surrounding the decommissioning of a nuclear power plant at the end of its use-ful life are so speculative and hypothetical that detailing a decommissioning plan and a consideration of alternatives for same at the construction permit stage is not required.Vermont

Yankee Nuclear Power~Cor.(Vermont Yankee Nuclear Power Sta-I tion), ALAB-179, RAI-74-2, 159, 178 n.32 (Feb.28, 1974)Accordingly, the paragraph of the Petition to Intervene re-specting decommissioning should be stricken.(e)The Board is not empowered to entertain contentions respecting potential acts of war, enemy action, or sabotage (PI, p.24).10 CFR 850.13;~8'is'el'.'A'EC, 400 F.2d 778 (D.C.Cir.1968);see'~Lon Island~L'f h'tin'Co.,'~su'ra at 851 Potomac Electric'ower Co.(Douglas Point Nuclear Generating Station, Units 1 and 2), LBP-74-35, RAI-74-5, 872, 874-5 (May 16, 1974),'a'ff'd ALAB-218, RAI-74-7, 79,,81 n.7 (July 15, 1974).The ruling of the" Atomic Safety and Licensing Board in'o t o'm'a'c E'1'e'c'tr'ic Po'iver'~Com

'a','~s'u'ra at 875-76, is fully dispositive of all of the'contentions raised under the caption"Price Anderson Considerations" (PI, pp.26-27)as"an attack on the'rice-Anderson Act and is therefore beyond the scope of this proceeding and will not be allowed."'Id.at 876.XII.The allegations under the caption"Financial Sta-bility of the Applicants" (PI, pp.11-14)are devoted prin-cipally to stating the contention, including ostensibly a factual background therefor, that Applicants Arizona Public Service Company (APS)and Tucson Gas and Electric Company (TG5E)are not financially qualified to construct PVNGS.without becoming involved in a line by line refutation or

explanation of the many and frequently incomplete assertions of alleged facts and conclusions, the nexus of the contention 1s APS and TGPE are not financially qualified because they will have to seek rate increases to attract the necessary capital.Such a contention is plainly a non-sequitur.

It is probably true that members of ACEC, like all other customers of APS or TGgE, do not relish the prospect of any increase in rates for electric service.But, this does not,'er se, render the applicants financially unqualified.

It is also probably true that those same members of ACEC, as well as all other consumers, want a reliability of service which will not unreasonably in erfere with their neces-sities and comforts or produce economic chaos.Because of this, and the steadily growing demands for service, the Applicants must make provision for installing new generating resources.

All such generating additions, whether nuclear or fossil, re-quire new capital.If the cost of attraction of the needed new capital, together with all other factors relevant in setting utility rates, should entail increases in rates, then that is the price of providing reliable service to all present and prospective customers as the Applicants are required by law to do.It may be alleged that the accelerating costs of providing reliable electric service requires that increased attention be given to means of conserving energy.But con-servation of energy is a factor in discerning the need for power, not financial qualifications.

I The Petition to Intervene in several instances stres-ses the proposition that the Arizona Corporation Commission is unlikely to grant the relief required to permit APS and TG5E to carry on PVNGS and other proj ects.(It is implicit, of course, in such a proposition that the need to seek rate relief is not an element of financial qualifications.)

Recognizing the empha-sis placed on the unlikelihood of securing requisite rates, perhaps the statement of the contention should be modified as follows: APS and TGPE are not financially quali-fied, because it is unlikely that the Corporation Commission will grant rate increases needed to attract capital.If this statement of the contention is correct, then the Petition asks the Board to speculate that the Corporation Commission will not meet its statutory responsibility to prop-erly balance consumer and investor interests and will not per-mit the recovery of revenues adequate to attract capital.Mr.Justice Douglas, in FPC v.H~o e Natural Gas Co., 320 U.S.591, 603 (1944), provides a classic statement of the responsibility of agencies regulating rates: The rate'-making process under the Act, i.e., the fixing of"just and reasonable" rates, involves a balancing of the inves-tor and the consumer interests.

...From the investor or company point of view it is important that there be enough revenue not only for operating expenses but also for the capital costs of the business.These include service on the debt and dividends on the stock....By that standard the return to the equity owner should be commensurate with returns on investments in other enterprises having corresponding risl s.That return, more-over, should be sufficient to assure con-

fidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital.(Citations omitted)Thus, the contention is faulty in two respects.First, because it is speculative, and second, because it asks the Board to pre-sume that another agency will act illegally.

But, even if the Board were permitted to entertain such a presumption, the contention still would not be sufficient to raise a challenge of the lack of financial qualifications.

It is well established that a refusal to grant needed rate relief entitles a utility to obtain equitable relief in court.Prender-gast v.New York Tel.Co., 262 U.S.43 (1923)Oklahoma Natural Gas Co.v.Russell, 261 U.S.290 (1923);Mountain States Tel.and Tel.Co.v.Arizona~Co'r.Comm'n, 331 F.Supp.1167 (D.Ariz.1971).Thus, if the contention were to be accepted, the Petitioner would be put to the burden of proving that rate increases would not be granted by either the Corporation Commission or the courts.And even if one assumes that Petitioner could meet this difficult burden, it is inescapable that in doing so Petitioner would also have proved that APS'nd TG5E's revenues are adequate to attract capital and therefore each of them is financially qualified without rate relief.Accordingly, it is submitted that the contentions respecting the financial obligations of APS and TG5E are irre-levant, speculative, and beyond the scope of the jurisdiction of the Board and should therefore be stricken.

II, II IV.Applicants allege that many of Petitioner

's allega-tions are either speculative, conclusionary, or vague general-izations.As required by Section 2.714 (10 CFR Part 2), con-tentions must be stated with reasonable specificity and must have adequate factual bases assigned to them.Al'abama Power Co.(Joseph M.Farley nuclear Plant, Units 1 and 2), ALAB-182, RAI-74-3, 210 (March 7, 1974).Likewise, contentions or allegations which are"vague generalized assertions" are not pp p h p d.~h'd d h d et al.(Peach Bottom Atomic Power Station, Units 2 and 3), CLI-73-10, RAI-73-3, 173, 174 (March 30, 1973).The Petition is particularly weak in this regard as the speculative conclusions and vague generalizations are not in any way supported by affi-davit or even reference to any authoritative sources.Applicants therefore, respectfully move the Board to strike the following speculative, conclusionary and/or vague generalizations from the Petition: (a)(PI, p.1, lines 18-24).(b)'PI, p.2, lines 11-18).(c)(PI, p.2, lines 25-28).(d)(PI, p.4, lines 26-29).(e)(PI, p.5, lines 9-12).

I (PI, p.9, lines 19-26).(g)(PI, pp.10-11, lines 25-32 and 1).(h)(PI, p.16, lines 27-32).(PI, p.17, lines 6-13).(PI, p.24, lines 6-12).(PI, pp.25-26, lines 1-32 and 1-20).(PI, pp.27-28, lines 24-32 and 1-15).(m)(PI, p.28, lines 27-32).(n)(PI, pp.29-30, lines 20-32 and 1-29).V.Applicants deny the allegations under the caption"Health Considerations" (PI, p.1)and allege that adequate consideration was given to radionuclides and the perched water zone.VI.Applicants deny that they have failed to treat the effects of transmission lines on aircraft and residents of 4'arious Indian reservations and allege that the topic of aircraft was treated by Applicants in Reference 1 to Section 10.9 and in f

Sections 10.9.1.1.6.1 and 5.6.1.2.2 of Applicants'R.

Effects of transmission lines on all residents, including those who live on Indian reservations, was treated in the ER and is summarized in Table 10.9-1 of that report.VI I.Applicants admit that special consideration must be given to EHV transmission facilities in the vicinity of cool-ing towers and allege that special consideration was given to this subject in the planning and design of the PViilGS.IX.Applicants admit that Bechtel Power Corporation will E serve as engineer-constructor for the PVNGS.Applicants deny the remaining allegations contained in the Petition regarding Bechtel (PI, pp.5-7)and further state as follows: (a.)The allegations citing the March 26, 1973 decision in the Midla'nd case are improper and should be stricken in light of the subsequent September 25, 1974 decision in the same pro-ceeding, i.e., Consumers Pow'er Co.(Midland Plant, Units 1 and 2), LBP-74-71, RAI-74-9, 584, 592-600 (Sept.25,.1974).(b)Allegations of specific occurrences at another project several years past during which time the requirements and tech-niques for quality assurance and quality control programs have been exhaustively refined are irrelevant to this proceeding and should be stricken.

P I I I J I A licants deny that Combustion Engineering, Inc.is pp not capable of designing, manufacturing and supplying the nuclear steam supply system for the PVNGS.Applicants allege that Peti-tioner's allegations regarding the Palisades reactor should be stricken as irrelevant to this hearing.XI.A licants deny the allegations concerning the com-pp petence o f General Electric and its experience with nuclear reactors and allege that the allegations should be stricken as irrelevant to this hearing for the reason that General Electric is not supplying the reactor, but rather, the turbines, for PVNGS.XII.Applicants admit that Arizona Public Service Company (APS)is acting as Project Manager and Operating Agent for PVN PVNGS.Applicants deny the allegations concerning APS'bility to man-age and operate PVNGS and allege that APS does have and will continue to have competent and experienced management, staff I and personnel to manage the design, engineering and construc-tion of a nuclear facility.XIII.The sweeping charges made against the Commission under the caption"Lack of Technical Data".(PI, p.10)are totally unwarranted in the absence of a refusal by the Commission to comply w3.t i a specx z.c e 1 f c request for information from the Petitioner.

Furthermore, such charges totally ignore 10 CFR Part 9 establishing

procedures by which information will be made available to the public under the Freedom of Information Act.Accordingly, such charges should be stricken as improper, premature, lacking in specificity and irrelevant.

4 XIV.Applicants deny Petitioner's allegations concerning Applicants'enefit-cost analysis (PI, pp.15-16)and allege that PVNGS is a prudent and financially sound concept on a benefit-cost analysis basis.XV.Applicants deny the allegations concerning fuel avail-ability for PVNGS (PI, p.16).XVI.Applicants deny the allegations concerning fossil fuel alternatives (PI, p.17)and allege that without PVNGS the re-serve margin of Applicants for the year 1981 will be substan-tially less than 204.XVII.Applicants deny the allegations concerning alterna-tives to the facility (PI, pp.22-23)and allege that Peti-tioner's allegations do not describe viable alternatives to PVNGS and that Applicants did consider energy conservation in arriving at future power needs.XVIII.Applicants deny the allegations concerning treatment of'aircraft with respect to PVNGS and allege that Regulatory Guide 1.70.8 requires major focus be given to air activity l

within five miles of the proposed site.No prohibited, restrict-ed, warning or alert areas are found within five miles of the site.Activities of military aircraft are adequately considered in PSAR Section 2.2, Figures 2.2.1.3, Table 2.2-1 and Table 2.2-3.Additionally, PSAR Figures 2.2-1 and 2.2-2 depict loca-tions of airports, alert areas and airways relative to the plant site.Private and commercial air activity is adequately considered in the above-described sections as well as PSAR Sections 2.2.1.2.3 and 2.2.2.2.3.

XIX.The Petition, under the caption"Transportation of Hazardous Materials" (PI, pp.25-26)asserts generally that applicants have not adequately considered safeguards for rail transportation.

That allegation is expressly denied.Appli-cants allege that any trains handling nuclear materials will move at special slow speeds and take additional safety pre-cautions.XX.Applicants deny the allegations concerning siting and site topography (PI, pp.27-28)and allege that Applicants have adequately followed Regulatory Guide 4.2 as respects siting and meteorological data used in the assessment of dilution po-tential (X/Q values)which inherently includes the effect of topographic features affecting the area.As discussed in Sec-tion 6.1.3 of the ER, the calculated X/Q values are direction-ally dependent.

Applicants deny all allegations under the general heading of water requirements (PI, pp.29-30)and allege that the City of Phoenix Nastewater Projections show that in 1980 over 104,000 acre-feet will be available for use at PVNGS and in 1984 there will be 129,000 acre-feet available.

The re-quirement of 105,000 acre-feet per year for PVNGS is based upon the theoretically maximum water consumption possible assuming the three units would run at 100: of capacity 12 months per year under the worst.summer conditions.

Nhen using the prob-able capacity factors and average weather conditions, the water consumption drops to 75,800 acre-feet per year as set forth in I ER Section 3.3.1.XXII.Applicants deny the allegations contained under the heading ER Report (PI, pp.30-32)and allege those allegations should be stricken as conclusionary, speculative and/or totally lacking in proper foundation.

XXIII.Applicants deny the allegations concerning the com-pleteness of the Application and the conclusions (PI, p.32)4 of Petitioner and allege that Applicants have complied with 10 CFR 550.34, Appendix D to 10 CFR 50 (even though that Appendix is no longer applicable) and Regulatory Guide Sections 1.7 and 4.2.Applicants further allege: (a)The Application complies with 10 CFR 550.35(a).

Applicant is technically qualified to design and cons tr uc t P VN GS.PVNGS.(c)Applicants are financially qualified to construct (d)The issuance of a construction permit for PVNGS will not be inimical to the common defense and security, the health and safety, or the economic well-being of Petitioner or the public.(e)Issuance of a construction permit is warranted.

XXIV.Applicants specifically deny each and every allega-tion of the Petition to Intervene not specifically admitted herein.DATED this day of February, 1975.Respectfully submitted, SNELL gÃILhlER By Arthur C.Gehr Bruce Norton Steven h1.1<heeler 3100 Valley Center Phoenix, Arizona 85073 Attorneys for Applicants i

CERTIFICATE OF SERVICE It is hereby certified that true and correct copies of the foregoing"Response to Petition to Intervene" have been placed in the United States Mails, postage prepaid, this lOth day of February, 1975, to the following:

Daniel M.Head, Chairman Atomic Safety and Licensing Board Panel U.S.Nuclear Pegulatory Commission Washington, D.C.20555 Dr.Marvin M.Mann Technical Advisor Atomic Safety and Licensing Board Panel U.S.Nuclear Regulatory Commission Washington, D.C.20555 Dr.Quentin J.Stober Research Assoc.Professor Fisheries Research Institute University of Washington Seattle, Washington 98195 Atomic Safety and Licensing Board Panel U.S.Nuclear Regulatory Commission Washington, D.C.20555 Docketing and Service Section Office of the Secretary U.S.Nuclear Regulatory Commission Washington, D.C.20555 Thomas M.Bruen, Esq.Frederic S.Gray, Esq.Regulatory Staff Counsel U.S.Nuclear Regulatory Commission Washington, D.C.20555 Mrs.Barbara Fisher, Esq.Arizona Public Law Advocates 201 North Stone Avenue Tucson, Arizona 85701

Atomic Safety and Licensing Appeal Board U.S.Nuclear Regulatory Commission Washington, D.C.20555 Nr.Carmine F.Cardamone, Jr.1415 North Third Avenue Tucson, Arizona 85705 Andrew W.Bettwy Assistant Attorney General 159 State Capitol 1700 West Washington Phoenix, Arizona 85007 SHELL 6 WILNER By Bruce Norton Attorneys for Applicants r'