ML19254D748

Response in Opposition to Tx Pirg 790512 Amended Contentions 1-6.Contention 1 Is Barred by ASLB 790412 Order.Contention 2 Is Vague.Contentions 3-6 Lack Basis for Allegation. Certificate of Svc Encl

ML19254D748
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	09/28/1979
From:	Copeland J, Copeland J, Newman J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:
References
NUDOCS 7910300055
Download: ML19254D748 (9)

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\~dC PUBLIC DOCMIENE m ^) f i o #edi i 1, N -

UNITED STATES OF AMERICA ' (\ g4 NUCLEAR REGULATORY COMMISSION ,)

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD e @ ~

In the Matter of S S

HOUSTON LIGHTING & POWER CCMPANY S Docket No. 50-466 5

(Allens Creek Nuclear Generating S Station, Unit 1) 5 APPLICANT'S RESPONSE TO TEX PIRG'S AMENDMENTS TO CONTENTIONS DATED MAY 12, 1979 Applicant files this response to "TexPirg's Amend-ments to Contentions Dated May 12, 1979." The restated contentions are identified as Amended Additional Contentions and then numbered seriatum (i.e. , AAtl, AA#2, etc.) . Appli-

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, cant responds below in a consistent form. ls

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, AA41: This contention alleges that the PID and the FS-FES did not consider the alternative of new natural gas fueled generating facilities. As P3 fore, the contention suffers from a fatal defect -- Applicant is prevented by law from building new natural gas fueled generating facilities.

See, Powerplant and Industrial Fuel Use Act, 18 U.S.C. 8301 et seq., Section 201. TexPirg tries to circumvent the force of the Fuel Use Act by arguing that: (1) Congress may modify or appeal the Fuel Use Act because of an alleged

" glut" of natural gas, or (2) the granting of an air quality

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_ _ _. - .__- 7910300OSI

exemption under the Act is " plausible". The speculation underlying the first argument is so obvious, no further discussion is required. (See February 9 Order ruling on intervention petitions, p. 70, wherein the Board dismissed as speculative a contention by another petitioner which was based upon conjecture as to future legislative action) . The question of an exemption is no less speculative. In the first place, the Department of Energy has not even pro-mulgated final regulations covering exemptions under the Act. Once the final regulations are promulgated there would have to be a dee.ermination made as to whether Houston Lighting

& Power Company could apply for an exemption under the regulations and finally a determination would have to be

,made by the Department of Energy as to whether }pplicant

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qualifie,d for an exemption. This determination, in turn, requires certain determinations by the Environmental Protec-tion Agency. In short, TexPirg must stack assumption upon assumption to even reach the argument that an exemption is

" plausible." This type of speculation does not give rise to a litigable contention. See, Exxon Nuclear Co., Inc.

(Nuclear Fuel Recovery and Recycling Center) , LBP-77-59, 6 NRC 518, 519-20 (1977).

Aside from the foregoing deficiencies, the fact remains, as noted by the Staff at page 5 of its " Response to Additional Contentions of TexPirg" (June 5, 1979), that the

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contention is based on relatively recent events. Therefore, the contention could have been raised in response to the Board's Order of September 1, 1978. Accordingly, it is barred by the limitation on "new contentions" in the Board's Order of April 12, 1979.

AA#2: TexPirg argues that EL&P can reduce its reserves by interconnecting with utilities that have excess capacity as a result of some unidentified " national, system-wide conservation" program. TexPirg does not identify the utilities which have the alleged excess of generation nor does it identify how much it would cost to interconnect with those utilities to obtain access to their alleged excess reserves. Furthermore, TexPirg fails to identify any studies

, by Congress showing a decrease for new generatipg f acilities

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on a nationwide basis. The contention remains hopelessly vague and subject to the same infirmities (" remote and speculative") identified by the Staff in " Response to Addi-tional Contentions of TexPirg" (June 5, 1979, pp. 8-9).

AAt3: The contention asserts that Applicant is not technically qualified to construct ACNGS because (1) it has net previously " designed an operating nuclear power plant"; and (2) it has encountered certain construction difficulties at the South Texas Project (STP). As to item (1) it is not, and has never been a requirement of NRC regulations that an Applicant have previous experience in

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the construction and/or operation of a nuclear power plant.

Order Ruling Upon Intervention Petitions, p. 44 (February 9, 1979). As to item (2), putting aside the question of whether the alleged deficiencies at the STP site are unusual in day-to-day power plant construction, intervenor has not estab-lished the relevance of those deficiencies to ACNGS. Allens Creek is a different reactor design from a different vendor, a project of much smaller scope, and is not being engineered or constructed by the same contractor. In short, as the Staff noted in its " Response to Additional Contentions of TexPirg" (June 5, 1979, p. 26), intervenor his not estab-lished the necessary " nexus" between the STP and ACNGS projects essential for the admission of this contention.

AA44: Referring to experience with r'ising costs

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at othen unidentified nuclear power projects as well as STP, intervenor contends that Applicant will not be able to finance ACNGS. There is absolutely no way of determining whether the cited " study by Bupp" of unidentified nuclear power projects has any relevance to ACNGS. As to STP, it need only be restated that STP is a different project of greater magnitude, involving a different architect-engineer contractor. Any attempt to relate the cost overrun ex-perience at STP to ACNGS must be based on pure speculation.

The amended contention is, if anything, of lesser substance nar i~~

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than the contention as originally stated and which the Staff urged "be rejected as a matter in controversy since it presents no allegation with a stated basis which either the

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Staff or the Applicant could intelligently address."-

AA45: TexPirg contends that a cooling lake ver-tical temperature profile has not been considered in the assessment of heat loading impacts on the acquatic ecosystem.

This amendment is essentially no different from the original contention filed on May 16, 1979. As we stated in resporse to that pleading, the NRC Staff did in fact request informa-tion from the Applicant on this subject. Ap'plicant fully explained in the ER Supplement the basis for predicting that the cooling reservoir will be uniform in temperature through-

, cut the vertical plane (p. SH-129). IntervenoEifails to -

t state in what way this analysis is deficient. In any case, in its February 9 " Order Ruling Upon Intervention Petitions" in response to TexPirg Contention 2 dealing with the same subject, i.e., effects of temperature on survival of fish, this Board expressly stated that (pp. 4-5) it had discussed the effects of temperature on fish in its Partial Initial Decision (2 NRC 776 in findings 39, 40 and 41) and that "in

• / NRC Staff Response to Additional (June 5, 1979), pp. 27-28.

Contentions of TexPirg "8 334

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our judgment the change in temperature regimes described in the new design is insufficient to disturb these findings."

AA46: As in previous submittals, TexPirg asserts that Wallis, Texas (a city of 1000 people) should be the

" population center" (presumably for purposes of 10 CFR 100 calculations) rather than Rosenberg, Texas. In the Partial Initial Decision in this matter, the Board found that Rosenberg was the appropriate " population center" (2 NRC at 798) and intervenor offers no concrete reason why this finding should be disturbed. Intervenor's reference to the possibility of a new airport near the site and the bald assertion that such a facility, if built, would attract new residents to Wallis, is remote and speculative. No basis is

, furnished for reconsidering the findings (par.'}1) of the Partial, Initial Decision. Further, the NRC Staff has re-evaluated and reaffirmed the designation of Rosenberg as the nearest population center (SER Supplement No. 2, March, 1978, pp. 2-2, 2-4). The speculation upon which the con-tention is premised serves no basis as a challenge to the Staff's analysis.

For the foregoing reasons, Applicant urges that the Board dismiss the foregoing amended contentions.

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Respectfully submitted, j@ d OF COUNSEL: J. 1 3regori C;fpeldnd (

C ThomastBiVdle, Jr.

BAKER & BOTTS C les G. Thrash, Jr.

3000 One Shell Pla:a 30 0 One Shell Plaza Houston, Texas 77002 Houston, Texas 77002 LOWENSTEIN, NEWMAN, REIS, Jack R. Newman AXELRAD & TOLL Robert H. Culp 1025 Connecticut Ave., N.W. 1025 Coinecticut Ave., N.W.

Washington, D. C. 20036 Washington, D. C. 20036 ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER CCMPANY "3 356

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of S S

HOUSTON LIGHTING & POWER COMPANY S Docket No. 50-466 S

(Allens Creek Nuclear Generating S Station, Unit 1) S CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Applicant's Response to TexPirg's Amendments to Contentions Dated May 12, 1979 in the above-captioned proceeding were served on the following by deposit in the United States postage &&fl day of mail, M kk, prepaid, 1979. or by hand-delivery this 4

Sheldon J. Wolfe, Esq., Chairman Richard Lowerre, Esq.

Atomic Safety and Licensing Assistant Attorney General Board Panel for the State of Texas

,U.S. Nuclear Regulatory Commission P. O. Box 12548 Washington, D.C. 20555 Capitol lStation Austin, Texas 78711 Dr. E. Leonard Cheatum Route 3, Box 350A Hon. Charles J. Dusek Watkinsville, Georgia 30677 Mayor, City of Wallis P. O. Box 312 Mr. Gustave A. Linenberger Wallis, Texas 77485 Atomic Safety and Licensing Board Panel Hon. Leroy H. Grebe U.S. Nuclear Regulatory Commission County Judge, Austin County Washington, D. C. 20555 P. O. Box 99 Bellville, Texas 77418 Chase R. Stephens Docketing and Service Section Atomic Safety and Licensing Office of the Secretary of the Appeal Board Commission U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 R. Gordon Gooch, Esq. Atomic Safety and Licensing Baker & Botts Board Panel 1701 Pennsylvania Avenue, N. W. U.S. Nuclear Regulatory Washington, D. C. 20006 Commission Washington, D. C. 20555

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Steve Schinki, Esq.

Staff Counsel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 John F. Doherty 4438 1/2 Leeland Houston, Texas 77023 Madeline Bass Framson 4822 Waynesboro Drive Houston, Texas 77035 Robert S. Framson 4822 Waynesboro Drive Houston, Texas 77035 Carro Hinderstein 8739 Link Terrace Houston, Texas 77025 D. Marrack 420 Mulberry Lane Bellaire, Texas 77401 Brenda McCorkle 6140 Darnell i

' Houston, Texas 77074 'l F. H. P5tthoff, III 7200 Shady Villa, #110 Houston, Texas 77055 Wayne E. Rentfro P. O. Box 1335 Rosenberg, Texas 77471 James M. Scott, Jr.

8302 Albacore Houston, Texas 77074 b6(914 J. Grego C elanti

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