ML19281A573

Appeals 790212 Denial of Intervention Status.Objects to NRC Attitude Re Implementation of NEPA & Placing Burden on One Asking for Info.Related Documents Encl

ML19281A573
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	02/27/1979
From:	Marrack D External Citizen/Individual/Media (Affiliation Not Assigned)
To:
References
NUDOCS 7903210316
Download: ML19281A573 (15)

Text

.

. 1

+

. _ ,...,.,,),i1

- g'_o.;f pv. , , . a/aq-),

TO: THE APPEALS E0ARD OF THE UUCLEAR REGULAT03Y COMMISSION In the detter of )

)

HOUETON LIGHTING AND ?O" ER ) Eceket Mc. 50-466 C070ANY ) g s#4 I "\

) '

9 .  %

(Allens Creek Nucleer Generating )  : NC-Stction, Unit 1) ) y tyr' -a7 g

,\ p\

• s 10 APPEAL OF RULING U?ON . '

INTERVENTION PETITIONS c@#@Y 1s //

~. 4 I, David Marrack, of 420 Mulberry Lane, Bellaire, Texas, do hereby for= ally eppeal the determination by the NRC, dated 12 February, 1979, rejectin6 cy petition to intervene which was submitted 9 October, 1978, in ecmpliance with 10 CFR - 1 Sept 1978.

1. Initially, I feel that I must protest the general attitude that is indicated by the NRC staff with respect to these proceedings.

The purpose of the National Environmental Policy Act was to produce an action-forcing document that provided " full disclosure" with rescect to the subject action. The burden is, and rightfully should be, ucon the anolicent ( or the licensing agency) to provide informa-tien uten which an informed decision can be made. The basis for my initial interest in this project was that I felt the full envirennental effects of this prcoosed action, including evailable alternatives, had not been fully exolored and disclosed. This concern was enpressed at the March 1975 Public Hearing and again in my arnlication to intervene of October 1978. However, the ruling of the NRC with respect to my interventicn shows a esllous disregard for iccues such as the burden of crocf. Additicnally, I did noc delay in the articulaticn of issues nor in my recuests fer full discicsure. Indeed, any delay ceused to thic croject was at the initiation cf '-e apcliennt. One ci the r9mifications of deley is tha t cddi ticnal informa tien ma;- becece avail-that able and that new information must be ecsimilated in a decurent Ohlla C

i

21. Provide documentation (references) for all factual matter --

m given in response to the abcVe questiens, and identify (name, -

L l organization, phone number) all personal contacts used to develop substantial qualitative information. pl 1

22. For the Scuth Texas indicate the acreages of price and lI -

unique farmland that would be affected by construction and operation of a third unit at that site. Provide a current market value for any crop production in this area, and if possibel indicate how much production will be lost by con-struction of a third unit. Indicate how the transmissicn lines related to Unit No. 3 would relate to those of Units 1 and 2, and provide a table shewing the major land uses that would be affected by cunstruction of transmission lines for Unit No. 3. Discuss aditional makeup water withdrawals, cooling pond discharges, or any additicnal construction activities associated with adding a third unit. Identidy any existing quatic resource problecs requiring mitigation that would pctentially be exacerbated by the addition of a third unit.

l

@y~

id El O

v_

e I

t

_4_

16.' Provide information en the general water quality of the proposed cooling water bcdy, especially turbidity, total f

dissolved oxygen, temperature, nutrients, and toxic trace .

Ff elements. Identify major downstrean industrial, agricultural g e

or municipal use of the water body receiving plant effluents. g Q,

L

17. Provide stream / river discharge data for the cooling water body and any major tributories on the site. Data en average monthly discharsc: for the most recent 12 month period should be included along with data en historic high and icw flows, especially the seven-day-once-in-ten-year icw ficw. Ccapare this information to proposed makeup and discharge volumes.

18. Identify any existing and preposed dedicated areas for servatin. of aquatic resources that exist en site or in the close vicinity of the site.

19. Identify any Federal and State listed rare, threatened or endangered species and their existing and proposed cricical habitats that are present cn or in the close vicinity of the procosed site.

Os ~

E

20. Identify any sites that are located en a ficedplain, and for ?j A'

any such sites, describe the ficcdolain and indicate its

[f k

approximate Scundaries. 3"

b. r;

- h3 h

i, I

i I

12. Provide bathymetry information en the ccling water scurce, __

I specifically depth contouring in the vicinity of the prc;osed

[?

V' intake and discharge structures. Locate the reposed intake t-

t. . .

and discharge water pipelines running frca the ccoling water g s

body to the proposed site. Describe any cbvious shcals, caves S L_

or other shallow waters that may be impacted by construction activities. This inf:rmation should in large part be avail-able on USGS topographic or US Ccast & Geccetic Survey maps.

13. Provide information on the effect of differential water use (makeup and bicwdown) en water quality impacts between use of cooling tcwers and cooling ponds. Give concentra-tion cycle proposed for cooling towers. ..

, 14. Provide any available informatien frca Federal, State or local authorities on the existence or potential occurrence of any recreationally or ccmcercially valuable finfish and shellfish fisheries on er in the vicinity of the proposed site and the proposed cooling water bcdy intake and discharge le; cation.

m

15. Provide any available information on the presence of spawning h nursary, cr feeding grounds or areas of migration for these fisheries that may be i=cacted by a :ivities associated with L;

fu she prcposed site deveicoment. Re'a:e any pa:ential intacts '

c t0 the presence of sinilar near:y ha:i:a: tna: may minimize any ecological effects.

ALLENS CREEK ALTERNATIVE SITE VISIT GUESTICNS*

ac-Un!ess otherwise noted, the following apply to sites Ma-3, Je-3. Li-3  ?

. E, e

and Sz-1. Where reconnaissance-level data are not available, please y P

r specify the reason or reasons. y J

U

l. Estimate changes in site area, pond area, land and water L.

requirements, etc., as needed to ccmpare these sites with the single-unit Allens Creek site.

2. Using Soil Conservation Service data, provide approximate acreages of prime and unique farmlands present on site to be disturbed by construction of plant facilities and to be covered by the cooling pond. If these areas have not yet been mapped for prime and unique farmland, provide acreages of ;

Soil Capability Classes I, II and III.

3. Provide a current carket value for crop production and, if possible, indicate how much crop production will be reduced by construction of the proposed facility.

4. For sites Je-3, Ma-3 and S -1, indicate how much land wcuid be required if a cooling tower were to be used. ((

a k

5. For site Li-3, why was a cooling pond not censidered? If Fi R

w.

a ccoling pond is feasible at this site, provide a map C b:1 c

showing-ics 2poroximate location and indicate the c.eeded E}

0

-acreane for the pond. I' i

An infernal lisc Of tnese questicns was transmitted :: 'Ir. "cGuire of I your staff cn January 22, 1979.

as 9%

m ss e y' \

. - y p

%% s,- 'e p ..u

', 2 s \,

XLLENS CREEK ALTERNATIVE SITE VISIT CUESTICNS* .

- T' A ~~ .'

A g' ^

'/* 7 Unlessotherwisenoted,thefollowingapplytositesMa-3,Je-3,Li},\ \ s ,

, ,' f7 and 32-1. Where reconnaissance-level data are not available, please .

,4 specify the reason or reasons. p, c,

r

1. Es:1 mate changes in site area, pond area, land and water L' u

requirements, etc., as needed to compare these sites with the single-unit Allens Creek site.

2. Using Soil Conservation Service data, provide approximate acreages of prime and unique farmiands preset' on site to be disturbed by construction of plant facilities and to be covered by the cooling pond. If these areas have not yet been mapped for prime and unique farmland, provide acreages of -

Soil Capability Classes I, II and III.

3. Provide a current market value for crop production and, if possible, indicate how much crcp produccion will be reduced by construction of the prcposed facility.

i 2 For sites Je-3, Ma-3 and Sc-1, indica:e h:N much land wculd e-be required if a cooling tower were to be used. r1

5. For site Li-3, why was a cooling pond no: censidered? If P, a cooling ocnd is feasible at :his site, :rovide a mac

~

[{4 p

Vi showing its a:proxinate lccaticr 2rc 'ndi:2:e the needed [b acreage for the pend.

An infernal list cf :nece :uesticns was transmitted :: Mr. "cGuire cf ycur staff On January 22, 1379.

- s Houston Lighting a Pcwer In additien to the material prc"ided in the ri'.&P "uclear Pcwer Plant Study, the staff will be seeking o.;swers to the enclosed list p" of questions. These quesitiens will be discussed with HL&P dur.ng the 7 site visit. To the extent possible, HL&P is requested to provide any It available information regarding these subjects at the begirning of the  !

site visit, including (if not available to HL&P) the identification of (

data sources (e.g., Federal or State rescurce egencies in the area) that could provide this material to the staff. We emphasize that the material j requested is of reconnaissance-level nature; that is, infomation that ^

may be obtained frca published reports, public records, public and L private agencies, and individuals kncwledgeable about the site location.

In general, it refers to data that already exists. Some of the questions

.~.iry be answered as a result of our site visits; others may require material t.'.at is not available. Responses by HL&P that such is the case are acceptable.

We plan to discuss these questions, plus any other questions that develop during the site visits, with members of your staff during an open meeting to be held at the Houston-Gulf Freeway Holiday Inn, 2391 South Wayside Drive, Housten, Texas, beginning at 1:00 pm on Thursday, February 8, 1979.

Sincerely, e:ar.rllard, Chief

.analdL.Ba&WAaC Environmental Projects Branch 1 Division of Site Safety and Environmental Analysis

Enclosure:

List of Questions cc: Service list 8'

F=,

'S

- N

. 7

'/

1. "'4

/ <

7 f. -

f^&^

" 'f ,

'[

[t 9'o UNITED STATES Cg'-

g'h,g, / NUCLEAR REGULATORY COMMisslCN /

g /g t 4 r WASHINGTCN. D. C. 20S55 a*+, %All

" ./* FE,:: :: 379 Docket No. 50 *66 #

a

{ -m .,

d a

Hcuston Lighting and Pcher Company S -

C';,g I5 6

ATTN: Mr. E. A. Turner 55 1 Vice President

• Power Plant Construction p ,[Mq+- Q@

d c

and Technical Services cs fa: #

d Electric Tower, P. O. Box 1700 c, jf Houston, Texas 77001 Ni "'

$2

Dear Mr. Turner:

The NRC staff has reviewed the Nuclear Pcwer Plant Siting Study that was discussed at the HLaP/NRC staff meeting on January 3, 1979, and intends to conduct a more detailed review of the folicwing sites:

Li-3 Je-3 Ma-3 Bz-l (This site was identified in a subsequent transmittal by HL&P). =

Since the staff's review of these sites will require more information than is available in the HL&P dccuments now available, we plan to conduct a visit to each of the above sites, and to the South Texas Project site.

These sites have been selected as representative of those candidate areas described in the staff's Final FES supplement. The staff also wishes to visit the Allens Creek site and, if time permits, site Au-2 and the W. A. Parrish site.

Arrangements for these visits are being made by R. W. Frcelich, the NRC environmental project manager. and Mr. Mc'iuire of ycur staff.

Present plans are to conduct the visit during the week of February 5, 1979. We understand that it may not be possible to physically walk each site, in which case a heliccater fly-cver will be acceptable. ,_

Heliccpter transcortaticn frca site to site is anticipated. We will g appreciate a briefing by HL&P per:annel en Monday, February 5, to 1 outline the proposed helicopter routes, present specific details of site locations, and to ccm;:lete arrangements for the helicopter flights. 1 During this briefing we wish to review topograonic maps of each site _

area. These maps shculd have the sita bcuncaries narked-in. [?

L h_

~ ~p,

- - - - r .;Zl

_.m ..t. _ , . . . _ m-mm.me-me . .s e- -we-w w -s

]

(

Biological Services Procran FWS/0BS-78/48 September 1978 IMPACTS OF T:KiSMISSIO:t LI:!ES ON BIRDS IN FLIGHT PROCEEDINGS OF A ',l0RKSHOP e ,

f.S, 'j). ,

s gg Oak Ridge Associated Universities y&n Oak Ridge, Tennessee c .. . , ci N' M 31 January - 2 February 1978 , C'

. Q m t

" 4 'I y g' p

• zl edited by

~

g ,,p g Michael L. Avery j National Pcwer Plant Team b 1451 Green Road Ann Arbor, ichigan 48105

-. - ==

Interagency Agreement no. 40-570-76 between U.S. Depart ent of the Interior and U.S. Department of Energy Project Officer Kenneth 3. Hoover National Pcher Plant Team This study was conducted as part of the Federal Interagency Er.ergy/Envircr. ment Research and Development Prcgram Office of Research and Development U.S. Environmental Protection Agency Fish and 5?ildlife Service a

U.S. Department of the Interice ru w. ur u.. soeua,ma oxawu. . : conm=w .cc cw. wem. o c. me

7 cuestion thy the impact of the procosed structure en migratory birds is not also a matter of ecual eicht cnd a matter to be considered,in clant site selectice. Clecrls its attence reflect: diceriminstery "rPO! ices.

I submit that the fact that the enswers te ,,

the cuesticns asked in the above February 5 letter to Cr. Turner are not in the FEIS cr Succlement for this croject is centrary to the recuirements of NEPA Sec 1022 (C) 111. That theme 22 cuestions were not answered crior to 5 Feb 1979 in the FEIS and Supple =ent for this cronosed oroject ir centrary to the recuirene nts of NEPA Sec 1022 (D).

" Study, develop, and describe acercuriate alternatives to recommended course cf action in any orcoosal which involves unresolved ccnflicts concerning alternate uses of available resources."

and also contrary to the ruling in Scrap v. U.S. Surrece Court, 1973.

In conclusion, I am apoesling the decision denying me the right to intervene. UEFA sets a standard of full disclosure and recuires an airing of the issues I have set forth. The actions of the NEC Staff in denying my intervention are an affront to UEFA and its intent that environmental and econcaic issues be addressed. I hace tha t you ac_ree

i th this centention.

7

/ .

/

av^' dt-D. i.ia r ra ck 27 February 1979

6 Petitioner alleges that alternative sites and other means of troviding energy have not been adecuately addressed. The contention is rejected as being barren and conclusional, and is not based upon new information or evidence.

Ihe issue is indeed based upon nei. information and evidence. The recuirement for the analysis of alternatives has becc=e much mere scchisticated since the original EIS was written. It is now understood that there are alternatives of differing scales and dimensions. For exs=ple, there are alternative energy systems that are new feasible that were not previously known. There are alternative sites and site consideratiens that were not analyzed in the original EIS. There is the ruling by the ?ublic Utilities Cc==ission of Texas on the impacts of transmission lines on migratcry waterfew1. And there are alternative routes for the transmission lines that were not analysed.

Once again, the issue of burden of proof arises. The allegation itself is enough to trigger intervention. However, I would like to point your attention to a letter da ted February 5, 1979, frem the NRC to Mr. E.A. Turner, Vice President, Houston Lighting and ?cwer Cctreny.

In this letter, 22 specific cuestions regarding alternatives are set forth to be answered by HL&P. One would assure that these cuestions could have been raised in 1975 and that the information was in existence prior to 1975. One could also state, as the NRC staff did in dismitsing my petition fcr intervention, that alternatives were treated in the initial EIS. However, I cffer thic letter as an indica tien that (1) the issue of alternative sites is an intertant ene:

, _ (C ) crira f acie evidence exists reith recrect to my recue.st, albeit renersi, that alternative; be analyzed in much grea ter dessil and (3) that a different recairement is bein- impcsed uren re as an intervencr than is being recuired Of the SEC S taff.

The scecifice and detail recuired in the cuestions nc. 7 and 11 in the ebove centicned letter of 7etruary 5 00 7.r . Turner beg the f /hYow -

5 imoact has been transmitted through transmission lines to bird c c..:cuni ti e s (Scott, Roberts and Cadbury, Eird Deeths Frc= Pcuer lines

+

at Dungeness, 1972, Eritish Eirds, r. 273). I only recantly received this article and have copies but .: t the full citaticn. The 'cdy of evidence regarding these impacts is increcsinE daily, and the informa-tion available to environmental decision-making has certainly increased since 1975.

Further, the decision by the Texas Public Utility Ccenission was given extremely offhand treatment by the Staf f (clease refer to cuoted section on page 1, supra). It is significant that the State of Texas has decided to give importance to transmission line inpacts upon water-fowl. This alone represents a chcnged condition supporting the validi; and new vitality of this issue. However, the Steff feels that its judg=ent is superior to that of the State's and cannot see that this chanEe may have some effect en their project. If nothing else, it should indicate that additional delays may be forthcoting if they do not give this issue full credence.

Finally, it is asserted, with resrect to birds, that the informa-tion concerning the presence of a rigratcry corridor does not raise new information. Again, the staff is arguing arainst the scirit of NEPA. No one disr.utes that the cresence of a migratory corridcr was kncwn prior to 1975. The impcrtant peint is that (1) new evidence indicates that transmission lines ray have substential impacts and (nc . . S ,i n. . o .c. .. . m u, . .-,.,,,,cc.~,

ini n _ s. 2, L ,12.c r. w .

2 .. .,.. . . o C ,- C o . .un

... e second rcint t e '. e s en edded dimensior river the first rcint. IF this arc 2ect

are not occurring serens a major migrr

:r: waterfc.vl corrider, the iscue aculd r.ever heva been raised in the fire; place.

3. ..ith recpect 50 the recuireren; fer considera icn of elternatives,

. , , , .vw ve %e .c we. um w .. .

.... . w ..-

4 to see " full disclosure".

The substantive issues relcted to these and other cuestions will be disdussdd below. However, the initial ocint is that the Staff is

,lacinc unen ne the burdens that rightfully fall urcn the at-licant end the agency.

2 Iseues Regarding frans=ission Lines and Bird Corridore The issue of transmission lines interfering with birds has not been widely studied in the United States. The absence of definitive information by me in the recuest for intervention was to sc=e degree caused by this lack of infor=s tien generally. Ecwever, new information has been developed and more research is beinE concluded at this time.

In my recuest for intervention, I referenced the EPRI research for two reasons. First, it was to establish the fact that new infor=ation was being generated and second, to demonstrate that a substantive issue was indeed raised by bird mortality. My expectation was that having raised the issue Eenerally, I would have the opecrtunity to introduce core specific evidence at the Hearing. As indicated. earlier,' wever, the attitude of the staff is that it was =y burden to show conclusively tha t this issue had scientific = erit. Further, the EPHI research was rejected as being incc=plete.

I have only recently received a docu=ent which indeed does chronicle the effects of transmission corriders en migratory and other birds. This study was undertaken by the Fish and 'lilldlife Service, U.S.

Dersrtment of the Intericr, under the ausrices of the Federal Interagency

__ Enerry/Environmenc Research and Develonmen: Program, Cffice of Resasrch cr" Sevelopment, U.S. Envircn= ental ?rctcc:icn Acency. It is ti tled, Ent

/

f "I=racts of Trrnemission Lines en 31rds in Flight" and it indicaces the derree cf sensitivity c;hich is demanded by this impa c t generster.

Further, cdditional research hss indicated that in 3ritain, substantial Mb fu~P~ Nn U h. --

3 thatrecortmaybeavailableanduseful)and (2) the statement of the Acolicant that they have not found many dead birds along their lines.

Disragarding the fact that creda tcre could have removed dead birds, this cecticn of the ruling indicates a bias in f avor of u: subs tantia ted remarks by the Arplicant and shcus a callous disregard for a significant impact area, not to mentien that the Staff is not even sure that H.L.&P's statement is in the EIS.

No response to my claims, or that of the Houston Audubon Society at the March 1975 hearing was ever received. Neither of these partici-pants in the hearing received a ccpy of the Partial Initial Decision, Nov. 1975, or any other direct cc==unication from the NF; until after October 1978. This reflects an a ttit _de of "Conspira c7 of Silence" and obs truction to full and timely dis closure by the NRC.

Second, the Staff states in Issue 3 that:

Petitioner contends that there ha s been no analysis of the secondary imcacts of the proposed project. The contention is rejected. The alleged secondary impacts have not been particul-ariced. Further, this subject was dealt with in our Partial Initial Decision, 2 NRC 776, 789-91 (1975), and there has been no snecific new information presented which would cause us to cuestien cur findings.

Again, the '3RC staff is asking that the burden of croef be placed 2cen those asking for " full disclosure". Secondar7 impacts are a generic class of impacts, c.uite apart in tyre and sind frem those imracts direct-ly associated with the facility per se. This generic treatment of secondary effects is cuite cceron, particularly in planning circles, and the CIQ cuidelines cleerly treat these irrects ss generically .

different frcr direct irrsets. Ucnethelecs, the staff feels ccrrelled tc recuire me te develco s recienc1 tcdel indicating that (1) seccndary irrect: 27 be cenerriad by a nerer , lent eri (2) iifferent cite loca:icns may acccm=cdcte thece irrnct: in diff rent manners rel?tive to differine environmental cytte:S. egain, the burdan of crocf is 'ceine nieced net unen those . iching to undertc ke an acticn but those wichin

2 curports to be a " full disclosure" document.

I would like to direct ycur attention to certain exa=cles of this ettitude with resrect to issues such as burden of proof.

First, necording the Ruling on Intervention, the NEC stetes: .

"Seccnd, contrcry to Section 2.714(b), the Petitioner dces not carticularise and show the basis for the allegation that the high voltage lines wculd cause a hazard to humans and to all wildlife, & and contrary to Petitioner's assertion, Subsections S 4.1.4 and S 5.1.2 of the Final Supplement to the FES do discuss the possible effects of transmission lines.

Thi;l, the allegation tha t the proposed transmission lines lie athwart a major waterfowl flyway could have been raised prior to December 1975, and the =ere fact that the Texas Public Utility Co==isaicn has euroortedly ordered the South Texas Project since 1975 to reroute its power lines away from a migratory waterfowl rcute does not serve to convert the allegation into becoming new evidence or infor=ation. Further-more, the Apolicant's Environ = ental Report has been a= ended in response to a question frc= the Staff (Amend. No. 0,11/13/73,

c. 5.6-2A) to provide a discussion of this specific point.

The Apolicant states:

"There are many =iles of transmission lines in the Houston Lighting and Power Cc=pany Syste=, sc=e of which have been in existence for many decades. Many of these lines cross water bodies several of which are used by migratory water-fowl. These lines are regularly inspected (for maintenance rurcoses) and no instances of significant bird losses have been reported."

Hence, this aspect of the proposed contention is rejected for lack of an adeauste bcsis. However, since we do not find this result in the FES as supniemented, we shall seek a clarification from the Staff as to whether the FES can be deemed so modified.

9/ We note that Petitioner asserts that, since 1975, the American Electric Power Research Institute has initiated a study of the effects of high voltage trnnsmission upon bio-logical systems, but has not ccceleted its report. An unfinish-ed report does not serve either to demonstrate that the allera-tien is bcsed upon new evidence er informa tion, or to show a~

_ reascnably scecific basis for the allegaticn.

This discussion abcve indicstes not ar agency that is atte= ting to T.ske " full disclosure", but one that ic a tte=: ting to c19ee the ph burden aron thiscrolicant/tc ad dherecedented degree. The allegatienc cited in surrert of the absence of /taterfewi irtsc

~

is (l' the inennelucive nature of en ongoing recearch croject (althcuch data frc=