ML19338E960
| ML19338E960 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 10/02/1980 |
| From: | Black R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19338E961 | List: |
| References | |
| ISSUANCES-CP, NUDOCS 8010070005 | |
| Download: ML19338E960 (6) | |
Text
10/02/80 UNITED STATES OF AMERfCA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY
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Docket No. 50-466
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(Allens Creek Nuclear Generating
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Station, Unit 1)
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NRC STAFF RESPONSE IN OPPOSITION TO D. MARRACK'S MOTION FOR
SUMMARY
DISP 051 TION OF CONTENTION N0. 76 (MARRACK CONTENTION 2(c))
I.
INTRODUCTION j
On September 12, 1980, Intervenor Marrack submitted a motion seeking summary disposition of his Contention 2(c) which reads as follows:
l Neither the FES nor the FSFES addresses the impact upon migratory waterfowl along the transmission routes beyond the plant site, nor considers that this impact could be i
minimized by constructing the power lines to follow the Brazos River to the south of the site, then east and then north to the O'Brien substation.
The motion asserts that no consideration is presented in either the Final Environmental Statement (FES) or the Final Supplement to the FES on the impacts to migratory waterfowl by the proposed transmission lines and, therefore, the analysis of these impacts is deficient.
In light of this deficiency, the motion requests an order requiring the " Applicant to present a thorough analysis of alternatives, routes and full disclosure of the impacts attendent [ sic]
thereto." Motion, p. 1.
In support /of its motion, Intervenor Marrack reproduces as an enclosure to the motion all of the pertinent sections of the FES and the Final Supplement to the FES that pertair, to transmission lines and their impacts. He asserts 8010070005 g
. that neither of these documents consider the adverse impacts of transmission lines on migratory waterfowl and that there is no evaluation of alternative transmission line corridors which would mitigate these impacts.
Intervenor Marrack also sets forth selected literature references which allegedly support his concern regarding the avifauna impact from transmission line structures.
The motion concludes by stating that "there is no data and no analysis of the impact of proposed transmission lines on migratory waterfowl or consideration of mitigating alternative corridors." Motion, p. 5.
II.
DISCUSSION The Commission's Rules of Practice provide for summary disposition of certain issues on the pleadings where the filings in the proceedings show that there is no genuine issue as to any material fact and that the movant is entitled
'.o a decision as a matter of law. 10 C.F.R. 62.749(d).
It is established that the Commission's summary disposition rule,10 C.F.R. 52.749, is analogous to the judicial counterpart in Rule 56 of the Federal Rule of Civil Procedure.
Alabama Power Company (Joseph M. Farley, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974). Accordingly, federal authorities under Rule 56 may be relied upon.
In Cleveland Electric Illuminating Company (Perry, Units 1 and 2), ALAB-433, 6 NRC 741, 752-54 (1977), the Appeal Board pointed out that it is the party seeking summary judgment, not the party opposing it, who must demonstrate the absence of'any genuine issue of material fact. Citing Adickes v. Kress & Co.,
398 U.S. 144, 157 (1970). To meet this burden, the movant must eliminate any real doubt as to the existence of any genuine issue of material fact.
Poller v. Columbia Broadcasting Co., 368 U.S. 464, 468 (1962); Sartor v.
o
. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944). The record and affidavits supporting and opposing the motion must be viewed in the light most favorable to the party opposing the motion.
See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 817 (1974) and cases cited therein at pp. 878-79. The 09 posing party need not show that he would prevail on the issues but only that taere are genuine issues to be tried. American Manufacturers Mut. Ins. Co. v. American Broadcasting-Paramount Theaters, Inc.,
388 F.2d 272, 280 (2d Cir. 1967).
The Staff submits that this motion for summary disposition must be denied for several reasons. First, the attached affidavit of Dr. Reed, a research staff member at Oak Ridge National Laboratory with experience in biology, plant ecology, and botany and responsible for the terrestrial ecology and land use sections of the Final Supplement to the FES, indicates that the NRC Staff did consider the in: pacts of the proposed transmission lines on waterfowl in the preparation of the FES and Final Supplement.
Indeed, the Staff recognized that large concentrations of waterfowl winter on the Texas Coast and are near the ACNGS site (FES, p. 2-12), that birds routinely collide with power lines (FES, p. 5-19), and recommended an alternative transmission route to avoid an open water crossing where collisions are most likely to occur.
j (FES, p. 5-19). The FES Supplement notes the Applicant's commitment to use the alternative route (p. S.3-12), and requires the Applicant to follow U.S.
Department,of Interior guidelines in designing, locating, and constructing the transmission lines (p. S.4-15).
Based on the Applicant's conclusion that
_4 there will be no significant bird losses because of a lack of previous problems with existing power lines (ER, p. 5.6-2A), the Staff :oncurred with the Applicant's selection of the proposed transmission lina routing (FES Supp.
- p. S.9-16).
Reed Affidavit, pp. 2-3.
Dr. Reed's Affidtvit also sets forth that data and source materials other than the ER which were evaluated by the Staff to examine this matter and concludes that " impacts of transmission lines on waterfowl will be minimized by the routing proposed by the Applicant and that no obviously superior routing is available." Reed Affidavit, p. 4.
Based on the foregoing, it is clear that the Staff has considered the impacts of transmission lines on migratory waterfowl. Whether that evaluation has been adequate is a question to be considered by the Licanting Board on the basis of the evidentiary record before it.
In this respect, both the Applicant and the NRC Staff can present supplemental testimony on this issue in response to the contention in order to demonstrate that the conclusions in their respective environmental documents have been adequately analyzed and supported. To this extent, it appears that Intervenor Marrack's alternative prayer of relief in this motion, i.e., a thorough analysis by the Applicant on this question, would be granted if this motion for summary disposition was denied since Applicant (and Staff) would be forced to defend their conclusions by the submission of supplemental testimony and subsequent examination by the Board and parties.
With respect to the question of whethe; the FES (and supplements) analysis on this issue is adequate, we would note that even though the analysis may be inadequate on this specific contention, ultimate NEPA judgments on any
. facility are to be made on the basis of the entire record, including supple-mental testimony, before the adjudicatory tribunal.
Philadelphia Electric Co.
(Limerick Generating Station, Units 1 and 2), M. AB-262,1 NRC 163 (1975).
The Commission's regulations recognize that evidence presented at a hearing may cause a Licensing Board to arrive at conclusions different from those in the FES, in which event the FES is simply deemed amended pro tanto.
10 C.F.R. 151.52(b)(3); Allied General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296, 2 NRC 671 (1975).S III. CONCLUSION The Staff submits that thic summary disposition motion should be denied because a genuine issue of fact remains as to whether the FES and Final Supplement to the FES have adequately considered the impacts of transmission lines on migratory waterfowl.
In any event, even if the FES is deficient with respect to supporting documentation and analysis on this issue, the ultimate NEPA judgment on this contention should be based on a complete record before the Licensing Board.
Denial of this motion would allow that reuard to be S It is equally clear that a Licensing Board has the legal authority to alter a proposed transmission routing on the basis of the evidence before it. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2T, ALAB-422, 6 NRC 33, 82-84 (1977), aff'd Public Service Co. of New Hampshire v. N.R.C., 582 F.2d 77 (1st Cir.1978), cert. denied 439 0 S ] ])46 (1978).
~
. presented and considered and any deficiency in the FES or Final Supplement could be cured. 2/
Respectfully submitted.
i
/,
s q ~f cr Richard L. Black Counsel for NRC Staff 4
Dated at Bethesda, Maryland this 2nd day of October,1980 I
l l
-2/ It is clear that Licensing Boards have independent responsibilities to enforce NEPA and may raise environmental issues sua sponte.
Tennessee Valley Authority (Hartsville Nuclear Power Plant, Units lA, 2A,1B and 28), ALAB-380, 5 NRC 572 (1977). Thus, if a Licensing Board should determine (either through its own review or by way of summary disposition motion) that a NEPA analysis is deficient, it should seek clarification or supplementation of that analysis through a Board question.
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