ML19339C254
| ML19339C254 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 11/13/1980 |
| From: | Linenberger G, Wolfe S Atomic Safety and Licensing Board Panel |
| To: | Marrack, Pothoff AFFILIATION NOT ASSIGNED, MARRACK, D., TEXAS PUBLIC INTEREST RESEARCH GROUP |
| References | |
| ISSUANCES-CP, NUDOCS 8011170908 | |
| Download: ML19339C254 (25) | |
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NUCEAR REGULATORY (. IEISSIN y IQth 9 Y
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'DE ATO4IC SAFETY AND LICENSING BOARD g
- n,. y Sheldon J. Wolfe, Esquire, Chairman s
Dr. E. Leonard Cheatun, Madser i
Gustave A. Timmbrger, Jr., Member sebg i
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In the Matter of
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IE90 HOUSTON LIGKrING AND POWER CDEANY
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Docket No. 50-466 CP
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(Allens Creek Nuclear Generating
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l Station, Unit 1)
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ORDER RULING UPW M7EIWS HR SGHARY DISPOSITION OF ENVIRONENTAL CONDNTIWS (Ncomber 13, 1980)
' As discussed hereinafter we rule upon various notions for simmry disposi-tion of several enviromental contentions filed by the Applicant and by certain Intervenors. As re.flected in our Order of October 3, 1980 and in our letter to the parties dated October 15, 1980, written direct testimonies ralat-ing to environmental contentions which are not dismissed herein shall be filed by no later than December 18, 1980.
M_a_rrack Contention 2(c)
Neither the FES nor the FSFES addresses the impact upon migratory waterfowl along the t,mnamiasion routes beyond the plant site, nor con-siders that this inpact could be minimived 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.
Dr. Marrack filed a Motion For Simmry Disposition on September 12, 1980, which the Staff and Applicant opposed in Responses of October 2,1980.
Dr. Marrack has not couplied with 8 2.749(a) of our Rules of Practice which specifies that there shall be annexed to a motion for sunmary disposition "a separate, short and concisa statement of the material facts as to which the moving party contends that there is no genuine issue to be heard". Our patience 4
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. bas been tested gain by Intervenor's failure to read or failure to couply with our rules; however, one more time we will overlook such failures. Cutting through the verbiage and arguments in the instant notion, we c-1mia that Dr. Marrack contends that there is no garmina issue to be heard as to the following two material facts:
(1) The Final Enviu_---Mal Statment (FES) and the Final Supple-ment thereto (FSFES) inadequately analyze the inpact upon migratory waterfowl along the two transmission routes (LA and 2C) proposed by the Applicant and concurred in by the Staff, and (2) The FES and the FSFES inadequately analyze that this inpact upon migratory waterfowl, which would occur along the aforementioned two pro-posed transmission routes, could be minim 4*ed 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.-1/
We have read the sectiersof the FES and FSFES cited by Dr. Marrack,by the Staff and by the Applicant. While the Staff argues, as supported by the affi-davit of a research staff member, that the Staff did consider the inpacts of the proposed transmission lines on waterfowl and did conclude no obviously superior routing is available, the Staff's evaluation and/or analysis is not set forth in the FES and the FSFES. Applicant's argumnts, as supported by an affidavit of an environmental scientist, likewise miss the mark because the FES and FSFES do not set forth the Staff's evaluation and/or analysis.
1/ In the instant notion, Dr. Marrack inproperly attempts to enlarge the scope of his contention (as reworded by the Board in the Order of March 10, 1980) by a W. that the FES and FSFES inadequately considered alternative transmission routes which could have minim 42ed the inpact upon migratory waterfowl. Our Order of August 21, 1980 at page 3 had denied as untimely his notion to correct the reworded contention, and thus we do not consider this argument.
4 Accordingly, we grant the instant notion for stenary disposition upon the narrow basis that the FES and the FSFES are deficient in these two respects.
However, the matter does not end here because, as the Staff correctly points out, if the FES and FSFES are deficient, pursuant to 10 C...R. E 51.52(b)(3) and the Appeal Board's opinion in Philadelphia Electric Co. (T:i w rick Generat-2/
ing Station, Units 1 and 2), AIAB-262,1 NRC 163,196-97 and n. 54 (1975)-
the Licensing Board is authorized to proceed to hear and to fully test the j
evidence addmad during the hearing and to modify the FES and the FSFES if 3/
deficientT Accordingly, we request that Staff and Applicant, and Dr. Marrack, 4/
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if he so desires, present evidence at the fortheming hearing analyzing (a) the inpact upon migratory waterfowl along the two transmission routes (1A and 2C) proposed by the Applicant and concurred in by the Staff, and (b) whether the frpact upon migratory waterfowl could be minim 4?ed 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.
4e 2/ See also Public Service Cocoany of Oklahma, et al. (Black Fox Station, Units I and 2), AIAB-573,10 NRC 775, 785-86 (1979); Public Service Coupany of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 29, n. 43 (1978),
affirmed sub nom. New Fngland Coalition v. NRC, 582 F2d 87, 93 (1978); Ningara Mohawk Power Corocration (Nine Mile Point Nuclear Station, Unit 2), 1 NRC 347, 371-72 (1975); Texas Utilities Generating Caccany (&manche Peak Steam Electric Station, Units 1 and 2), 1 NRC 51, 55 (1975).
3/ Indeed, in admitting Marrack Contention 2(c) as reworded by the Board, and in
~ posing Board Question 11 in our Order of July 31, 1980, we had already put both Applicant and Staff on notice that we expected them to present evidence regarding these daficiencies.
4/ We note, at page 1 of his notion for sn-mary disposition that Dr. Marrack, mistakenly believing that Applicant prepared the FES and FSFES, requested that we only order Applicant to present a thorough analysis at the foreheming hearing.
. TexPirg Additional Contention 1 (consolidated with Hinderstein 3)
S.4.5.1 (3) on P9 S. 4-14 of the Final Supplement to the Final Faviu -
- al Inpact Statement (rstuS) does not adequately disclose and analyze the alternatives chosen for the transport of construction related e -wts to the site. In parHenlav, the Applicartt has not clearly determina4 whether waterway barge transit will be used for trar.yudat:lon of large reactor wients to the site.
Such a transportation schse would require draddng and channa147-ing of sections of the San Bernard River or Brazos River. Such activity would disrupt marine life in that river, crente excessive turbidity, and clouding of the water, destroy river bottom life, require environ-i mental destruction during spoil disposal and initiate secondary inpact in the form of increased industrial uses of the rivers. Petitioner contends that Applicant's e-dtment to trarryvii.ation of the reactor vessel should be expressed more spac4F4cally and that the Board should j
either deny the license wholly or require the alternative site action sought by TexPirg in Contention 1 of the " Stipulation between TexPirg and the NRC Staff", if the dradging and channa147 % g is necessary.
The final EIS does not specify how the reactor vessel will be transported to the construction site and what means have to be taken to effect this transpus ation. The probability that this transportation will have an envim =r=1 inpact necessitates its coverage in a final EIS for construction. For exanple, dredging. widening or otherwise altering the Brazos River to bring the vessel to the site by barge would have an enviroranental effect.
4 It is requested that the construction permit not be issued until the reactor vessel transportation is sufficiently addressed.
TexPirg filed a Motion For S - =vy Disposition on October 8, 1980, which the Applicant and Staff opposed respectively on October 22, and Novettber 3,1980.
TexPirg indicates that there is no genuine issue to be he ad as to the material facts that neither the FES nor the FSFES (1) shows the inpact on the enviivta=nt of the use of barging to transport the reactor vessel, (2) adequately discusses alternative metbnds of transporting the reactor vessel to the ACNGS, (3) t adequately discusses the envircranental inpacts of transpdng the reactor vessel to alternative sites such as the South Texas site. As a matter of law, TexPirg
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. argues that, pursuant to N=dasion regulations, a hearing upon any further supolementation to the EES cannot be conducted until after the FES, as supple-
- mented, bas been cirmlead for conment and made available to the public.
W grant the motion for sunmary disposition upon the narrow basis that the EES and FSFES are deficient in not analyzing the aforementioned three factual issues. However, pur.'2 ant to 10 C.F.R. 8 51.52(b)(3) and the cases cited in our discussion of Marrack Contention 2(c), supra, we are authorized to proceed to hear and to fully test the evidence adducad during the hearing and to modify the FES and supplements thereto if deficient. The Staff advises that the second supplement to the FES, which will assess the environmental inpacts of barging and the alternatives to that proposed method of transpv1.i -
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tion, will be published in Novenber 1980. If the second supplement to the FES is indaad published in.Novenber 1980, TexPirg should have ample vyyui.t.anity to submit written direct testimony, if any, by December 18, 1980, and/or to pre-pare for cross-er=4naHnn. If TexPirg is unable to file its written direct testinony by the due date, upon a timely filed notion showing good cause, the Board may set forward the schedule for the taking of evidence upon the barging issue.
TexPirg Contention 1 (consolidated with Bishop 23(a); Conn 2; O=inga 4; Doggett 2; Johnston 5-2 and 6-1; T a mar 2)
"The South Texas site is obviously superior to Allens Creek as the site for an additional nuclear power plant because:
5/ W note that the Staff's description of the scope of the second supplement Hoes not include an assessment of the environmental impacts of transporting the reactor vessel to alternative sites such as SIP. Furtaer, we remind the parties that the Order of March 30, 1979 stated that we uculd hear evidence on certain additinnal matters in connection with the instant consolidated contention.
. (1) Two nuclear power plants are already under ccustruction at South Texas, and a third unit could be added without disturbing the unspoiled site at Allens Creek; (2) the cooling lake at South Texas is large enough to acconno-date a third unit; (3) a third unit at South Texas would use less additional land than would a unit at Allens Creek; (4) a third unit at South Texas would use significantly less water than would a unit at Allens Creek; (5) a third unit at South Texas would require less additional land for transmission lines than would a unit at Allens Creek; and (6) the present and projected population density around South Texas is significantly less than around Allens Cree %."
TexPirg's undated notion for smwy disposition of its Contention 1 was received on Sept aber 16, 1980. Applicant and Staff filed opposing responses on October 2, 1980.
Relying pon affidavits of Clarence Johnson and Hcuard Saxion, Intervenor's notion asserts that there are no genuine issues to be heard as to certain material facts. These material facts, stated in TexPirg's notion, unfortunately, in sme instances, do not relate to the subject matter of the above six elements of the contention as submitted. Hence, in order to determine how much of this conten-tion is to be litigated, we discuss the above six el e ents to the extent speci-fically addressed by TexPirg.
(1)
It is uncontroverted that two nuclear power plants are already under construction at South Texas. It is axiomatic that if an additional plant were instead built at South Texas, the ACES site would not be disturbed thereby.
However, Applicant's affiant R. M. McCuiston states that because of existing co-participant procective agre w ts at South Texas, Applicant cannet unilaterally decide to site an additional plant there for its own use. Considerable and sub-i stantive negotiations with Applicant's co-participants at South Texas would be
'1 7-required, the outcome of which is far from certain. McCuiston also states that Applicant owns the entire Allens Creek site, and, if precluded from building a nuclear plant, would favor the siting of a non-nuclear plant at Allens Creek becauce features of the~ site are daamad desirable by Applicant.
Intervenor fails to address the above aspect of relocation and the possibility that non-nuclear plants built at Allens Creek could give rise to some of the same effects it seeks to avoid. The Board enneluda= that there are clearly controverted issues of material fact as to whether the South Texas site is a viable option to Applicant and whether the ACNGS site would ramain unspoiled.
(2) Both of Intervenor's affiants state that the South Texas s2.te was chosen to accomodate four nuclear generating units. No citations or bases are given for such an assertion, however, neither Applicant nor Staff explicitly challenges it. Without addressing the adequacy of the South Texas cooling lake size, McCuiston discusses the complex legal considerations associated with the taking of sufficient water from the Colorado River to support the two units now abuilding at South Texas and the legal uncertainties of whether enough additional water can be taken to support a third unit. Staff's affiant C. W.
Moon concludes that there would be significant adverse inpacts on aquatic i
ecology, should additional water be taken and discharged, a matter not addressed i
by the Intervenor. We find triable issues of material fact regarding the adequacy l
of water resources and the acceptability of aquatic impacts should a third nuclear unit be sited at South Texas.
(3) Affiants for Intervenor and for Applicant fail to provide informa-tion that would permit a couparison of the amounts of land required at the two i
sites. Itsever, Section 9.2 of the FSFES states that about 5,620 fewer acres of land would be insolved at the South Texas site compared with the Allens l
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Creek site. Hence, we conclude that there is no controverted issue of material fact regarding this elment.
(4) Staff's affir.it Moon states the Staff's c mclusion that the Allens Creek site rated preferable to the South Texas site as regards constmptive water use. However, we note a contradiction in that Section 9.2 of the ESFES (cited in the Moon affidavit) states that construction and operation of a third nuclear unit at South Texas instead of at Allens Creek would result in a signi-ficant re mHm in the constaptive use of water.
Intervenor's affiant a
h hnson also notes this same Staff conclusion. Applicant does not address this matter. The Board finds that there is a litigable issue of material fact regard-ing ccuparative water usage.
(5) Neither Intervenor's affiant Johnson nor Applicant's and Staff's affiants address a conparison of land requirenents for transmi.ssion lines.
Saxion's affidavit perhaps inplies that the South Texas requirement would be lass because rights-of-way across agricultural land would permit existing agricultural use to continue except at the base of each tower. Mr. Saxion's statement is at best inferential and thus is not dis' positive of this element of the contention. A litigable issue of unterial fact exists.
(6) Present and projected population densities around the proposed i
Allens Creek site couprise an issue previously adini.tted for litigation, the inpact of which cannot be anticipated here. Hence, there is a genuine issue of material fact and we will hear testimony upon this element of the contention.
In simnary, we find that Intervenor has prevailed only with respect to elment (3) above, and grant the notion for simmary disposition with resoect to that factual issue alone. Accordingly, we find that a third unit at STP would use about 5,620 fewer acres of land than would a unit at ACNGS.
TexPirg Contention AB (as ar=ndad on September 12, 1979)
"Intervenor alleges that the PE did not consider the alternative of new natural gas fueled generating facilities; and that such a facility is feasible and will result in less envia.m-wal damage than the action envisioned in the appli-cation sought here. Specifically, the above-noted PID and the FSFES did not consider the following factors weighing in favor of constructing a new natural gas fueled generator, extending the lifetime of gas generators presently planned for early shutdown, and/or increasing the canarity of presently operable natural gas fueled generator units; and these facP. ors form the basis for alleging the inadequacies of those analyces:
A.
The conclusion of the FSFES and the P D's anparently inplicit conclusion that supply of natural gas outstrips damand is not totally accurate, because --
l.
A present " glut" of natural gas exists in the market, at least partially due to price deregulation and the fuel switches which have occurred.
2.
The conclusions do not consider improved seismic and holograph ~c techniques at 30,000 feet or nore.
B.
Supposed legal constraints upon the use of natural gas have been inproperly used as a basis for di.smissing the potential of natural gas because:
1.
The circumstances described in (A) above may lead to nodification or repeal of constraining portions of P.L.93-319 and the Industrial Fuel Use Act of 1976, just as the Texas Railroad remnission has suspended similar legal restraints in Docket 600; and regardless, the legal codifications of those laws are reasonable and nust be considered as an alternative federal action to the licensing of ACNGS under NEPA; 2.
The Industrial Fuel Use Act of 1976 has exegtions for areas with poor air quality, and Houston is classed as an air quality 'non-attainment area'; therefore, the granting of such an exenotion is plausible and nust be considered as an alternative federal action under NEPA.
C.
Both the 1974 FES used for the PD and the FSFES (1978) inaccurately conclude that natural gas prices eliminate this alternative, and this is shown by:
1.
the fact that Applicant has prepared projections of natural gas prices for the future which indicate the price as adjusted for inflation will decline; 6
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the tunerous analyses of historical data (incliviing the Staff's own study by Randia) regarding the capa-city factors for nuclear units of the tym similar to ACNGS, which thus show that ACNGS' limly efficiency has been overestimated by the Applicant and Staff, l
increasing its cost relative to natural gas generation; and 3.
the historical data for recent vintagc nuclear plants indicate that the capital cost of ACNGS is probably underestimated, also increasing its relative cost.
D.
Natural gas generation is envim mm11y superior to ACNGS because:
1.
Natural gas has negligible sulphur dimida and radioactive air emissions, and the ramaind-of air emissions, are manageable; while nuclear generators emit radioactive re-leases to the air in both normal operations and design basis accidents; 2.
Natural gas ash content is negligible, resulting in no disposal problems, while nuclear waste disposal results in numerous envL-ral inpacts; 3.
Natural gas generators require less physical land space than ACNGS; and the natural gas fuel cycle entails less land damage, as well as less occupational risk, during the fuel extraction process; 4.
Natural gas generators consume less water than ACNGS, and do not increase anbient water temperatures as high as ACNGS.
5.
Natural gas facilities are more econmically built in smaller m1tiple units than a nuclear power plant, which allows a lower necessary reserve margin and a consequent rWrinn in the anount of resources conmitted for installed capacity to produce given amounts of electricity."
On September 12, 1980, TexPirg filed a notion for simary disposition of this contention. On October 2,1980, Applicant and Staff each subcitted responses in opposition. Applicant's response also contained what it characterized as a " Cross-N tion" for stm m y disposition in favor of Applicant.
Said cross-motion being untimely, we decline to consider it.
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We consider that the thrust of this contention, regarding alleged Mirianr4a= of the Board's Partial Initial Decision (2 NRC 776 (1975)) (PID) and the Staff's final supplement to its EES (FSFES) (NUREG-0470, August 1978),
is contained in the first paragraph, above,and that the subsequent paragraphs A through D conprise the suppui.ing bases, as noted in the contention.
Having reviewed and considered in detail Intervenor's notion and the opposing responses of Applicant and Staff, we find ourselves confronted by a perplexing sitme4m: none of the parties addresses what, to the Board's udnd, is the underlying thrust of the contention - namely, whether the PID and the FSFES adequately assess the "t-4147ation of natural gas for electricity genera-tion as a viable alternative to the proposed Allens Creek nuclear generating station (ACNGS), and hence whether there remains a genuine issue of material fact (with respect to that question) to be litigated. With respect to said underlying issue, we readily conclude that the PID and the 'edets are inadequate, and, on this narrow basis, we grant Intervenor's notion for smmary disposition.
(See subsequent discussion) To leave the matter here, however, would be to ignore the incacoleteness of the record on the following three inportant ques-tions:
(1) Does nore recent information than used by Staff in the FSFES concerning the availability and the cost of natural gas change the conclusion reached therein that nat. ural gas is not a viable alternative energy source, and why?
(2) Do the legal and regulatory inolications of the Powerolant and Industrial Fuel Use Act (PIFUA) preclude the Appli-cant from obemining exemptions that could obviate the need l
for the ACNGS?
- i (3) Would a naw natural gas fueled generating facmty l
result in less enviu--
- =1 damage than the pro-l posed nuclear plant?
We request that Applicant and Staff, and TexPirg, if it so desires, address the above three questions during the evidentiary phase of the hearing scheduled to begin on January 12, 1980. We now discuss our ra== ming. The subject of alternative energy sources was not addressed by the Board in its 1
PE. Owing to the hiatus in the proceeding, the Board now has its first vyyvn.unicy to receive evidence on this subject. The contention asserts, and 1
we agree, that the PE is incouplete, albeit not by oversight. Further, the FSEES was not published until August 1978. The discussion of natural gas in Section 9, thereof, relies on information published at considerably earlier dates, the tuost up-to-date citation bearing a publication date of February 1976. The core recent inpacts of inflation, deregulation, the enactanent of the P m a in 1978, and 10 C.F.R. 500 are not, and could not have been, assessed.
Again, as alleged by the contention, the FSFES does'not portray a sufficiently up-to-date status to satisfy the needs of the c xrrent record, and we will receive evidence on the three questions posed above.
TexPirg Contentions 2 and 4 (consolidated with Griffith 4 and McCorkle 2)
[TexPirg 2] The smaller cooling lake size and changed loca-tion of the lake vis a vis the original proposal will render the lake useless as a viable recreational fishery because:
the changed location eliminates the Bluff area as a a.
recreational and fish s - b g area; b.
the amount of chlorine which will be released to the
. lake has nore than doubled, which will result in significant fish kills; 1
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t sewer disd.as.s from Wallis, Sealy and the nuclear c.
plant will cause an excessive algae growth in the lake; I
d.
the heavy metal concentrations in the lake will i
' result in heavy metals concentrating in the fish and will make them inedible; and e.
tham =1 shock will kill large tunbers of fish during the winter when plant shutdowns occur.
[TexPirg 4] Even if a cooling lake is approved by the Board, the Board should require that it be redesigned to be nore of an enviromental benefit and less of an envi&w-n1 burden. Specifically, the dam (levee) should be extended northward to a point just east of.its present northeast corner so that the runoff can go into the lake and so that the north bluff area can be a viable fish s-ing area.
TexPirg filed a motion for sumary disposition that was mailed on October 8, 1980, which the Applicant opposed in its response of October 22, 1980, and the Staff opposed in its Response of November 3, 1980. Intervenor's i
cocion merely consists of the following statement of material facts as to j
which it contends that there is no genuine issue to be heard:
1.
The Allens Creek cooling lake is not designed to promote the growth and reproduction of game fish.
2.
Game fish reproduction would be enhanced if the lake was redesigned to include the " North bluff" area.
3.
Game fish growth, health, and reproduction would be better if a coal or lignite plant of same capacity was used because of the higher thermal efficiency 4
would cause less heat input into the lake.
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The AmGS cooling lake will not be an attractive recreational lake because of the poor fishing, high water tenperatures in surmer, excessive algae growth, excessive growth of water plants that get so thick that it is inpossible to drive a boat through it, high bacterial pooulations caused in part by the sewer discharges frczn Wallis, and Sealy, dead fish from excessive chlorine dis-charges, and public fears of eating fish exposed to radioactivity, sewer discharges, and heavy metals that are concentrated by the cooling lake.
S.5.3.2.2.
5.
The method of estimating recreational usage of the cooling lake is inproper and inaccurate because it cccoares nonheated lakes with the problems listed above with Allens Creek lake.
On the other hand if it was accurate, the hage nutbers of park users and its associaced growth in businesses would make it nuch more difficult to evacuate the area near the plant soon enough to meet the NRC regulations or to adequately protect the public health and safety.
S.S.6.2.3.
We note that three facts asserted in this statement represent an i::pernissible brnadaning of the scope of the contentions:
(a) A conparison of fossil fired facilities with nuclear facilities as regards heat inout to the l
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cooling lake; l
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- (b) A challenge to Staff's methodology for ese4 = ting the recreational usage of the cooling lake; and (c) The perceived difficulty of evacuating people using the lake, if Staff's estimate is correct.
The r=4ning three asserted facts are unsupported by affidavits or by ev%mr4=vy material, and merely constitute a restatement of the contention with a reference to one section of the FSFES. We find that nothing in the motion and in the reference to the FSFES is dispositive of the cor.tention. As the Supreme Court held in Adickes v. Kress & Co., 398 U.S.
144, 157 (1970), the noving party has the burden of showing the absence of a genuine issue as to any material fact. Here the Intervenor did not carry its burden. Accordingly, TexPirg's notion for s=mtf disposition of its Conten-tions 2 and 4 is denied.
l TexPirg Contentions 5, 7, A8, and A12 TexPirg filed a motion for sunmary disposition of the four above-nucbered contentions on October 8, 1980. Applicant and Staff respectively responded in opposition to the notion on October 22 and November 3, 1980. We first note that this is Intervener's second 6/
acteupt to dispose of Contention A87 The first such notion, directed exclusively to this one contention, is dealt with above; ue do not afford it further consideration here. The r e ining three contentions 6/ TexPirg's instant notion labeled this as Contention 8.
The notion makes it clear, however, that Intervenor is addressing Contention A8.
. are now surmarized, suppvning bases being emitted for brevity.
-- Contention 5 (consolidated with Curdngs 6 (b)) contends that neither the Applic-rc nor the Staff has given ade-quate consideration to the combustion of solid waste as an alternative energy source.
-- Contention 7a-c (consolidated with Doggett 1(,t)) contends that there has not been a dispositive assessment of the energy h d reduction potential that might derive from conservation measures as G le to the Applicant.
-- Contention 7d (consolidated with Cuanngs 6(c)) contends that the increased use of passive solar techniques has not been considered by the Applicant and the Staff.
-- Contention A12 contends that the Applicant can obviate the need for the ACNGS by interconnecting with other electrical systems across the nation.
TexPirg's notion consists solely of the following statement of material facts as to which it contends that there is no genuine issue to be heard:
1.
The fact that the Applicant has announced that it is building and has bought other sources of electricity since it did its projections for the need for Allens Creek show conclusively that it does not need Allens Creek electricity any nore. Since the Table S.8.13 was published, the Applicant has added Parrish #8 (600 M0; Site W (1,50CNW); Site X (1,500 MW);
negotiated to buy a Texas Utilities plant that they
.-. do not need because of excess capacity; Contracted to buy 500 W/yr from the City of Austin; Agreed 4
to interconnect with other utilities with excess power; and could buy the City of San Antonio's part of the South Texas Project; and could buy other excess capacity from the City of San Antonio (they have discussed selling to Mexico in exchange for natural gas).
2.
The City of Houston has announced that they will build a system to burn its solid waste to generate PN-3.
There is now an excess of natural gas, and the Appli-cant could operate many of its natural gas plants past 1990.
4.
It is now both national and state policy to encourage the use of cogeneration and solar energy and to encourage conservation.
5.
There is no doubt that the Applicant could replace the need for ACNGS in a reasonable time and at a reasonable cost by a combbdon of the use of conservation, interconnection with surrounding utilities with nore excess capacity, cogeneration, solid waste fael, use natural gas in present plants until their natural life expires, and their already announced coal and lignite plants.
These asserted facts are unsupported by any affidavits or other evidentiary material, are in part conclusional, and one such fact (1) iuywyerly expands the scope of the contention in addressing need for power I
(see Orders of Septenber 26 and November 7,1979). TexPirg has not met its burden. Accordingly, its notion for sumery disposition of Contentions 5, j
7 and A12 is denied.
Potthoff Contention 6 In the FES, the Staff states that biomass production is "not now a randle alternative" to ACNGS. However, 4
Project Th estimates fuels from binnaas produc-tion (urban waste, agricultural waste terrestrial crops, marine crops) would amunt to 3 x 10 g gross BTUs per year, and that large quantities of marine crops can be grown and harvested without subsidies when oil hits $11 per barrel. Project Independence estimates a 100,000 acre marine biomass farm, producing 27 x 10 12 BTUs/ year, would cost $578 million.
I contend building and operating i
a marine bimnaas farm, or other biernaas production systems, would be emrL.t -
rally preferable to ACNGS, and ask the BoardtodenythepermitundertheNEPA.7]
In its unpublished Order of March 10,1980 (p.11, para. 6) the Board rejected this contention on the ground that Mr.' Potthoff had not provided a basis for alleging that such a large scale marine biomass farm would be an environmentally superior alternative to ACNGS. Mr. Potthoff appealed and was upheld by the Appeal Board with one dissenting opinion (AIAB-590,11 NRC 542, (1980)). In brief, the Appeal Board held that, because of his citing of Project Independence and because of his assertion respecting the envim.tal superiority of a marine biomass farm, Mr. Potthoff had provided a sufficient basis for admi.tting the contention, whether or not it might prove to have merit.
t 7/ During the course of the special prehearing conference on October 16, 1979, Mr. Potthoff specified that he meant a marine biernans farm growing help (Tr.
931).
. Applicant noved for si==ry disposition of this contention on August 4, 1980. In support of its notion, Applicant appended the affidavit of Dr.
Herbert H. Woodson, now Director of the Center for Energy Studies, University of Texas, Austin. In substance, Applicant asserts the following unterial facts as to which it contends there is no genuine issue to be heard:
1.
The 100,000 acre marine biomass farm proposed by Potthoff cannot possibly produce the energy equivalent of ACNGS. Using Intervenor's postulated energy output figures, a farm of see 400,000 acres would be required, not accounting for preprocessing energy requirements.
(Woodson affid., p. 3).
2.
Utilizing current estimates of energy conversion potential of unrine plants with highest energy yield, and which can be grown on a large scale, a marine biomass farm of over 576,000 acres would be required to produce energy equivalent to ACNGS, again not account-Ing for preprocessing energy requirements.
(Woodson, affid., p. 4).
3.
No biomass farm of even a significant fraction of this size is in existence or known to be under development. The one-fifth acre test farm deployed off the California ' coast in 1978 can in no way be classified as a prototype for a practical marine birrmas energy farm.
(Woodson affia., pps. 5-6).
4.
At least thirty years of research and development of unrine biomass production and conversion technologies will be required before the technical viability of a several thousand acre denon-stration plant would be widely accepted. A conmercial-scale marine biomass energy production system could not possibly be available for another ten years (by the year 2020) at the earliest, if ever.
(Woodson affid., pps. 2-3, 5, 8-9).
5.
There appears to be no reasonable means for Applicant to obtain title to and use of between 15 - 25 percent of the usable acreage of the Gulf of Mexico from the Mississippi River to Mexico for the coeration of a farm of the size required to replace ACNGS.
(Woodson affid., pps. 9-10).
j 6.
The envircr==nen1 inpacts of this large a farm are numerous and potentially extremely significant, and there is no evidence that such a biomass farm would be envia.onmenrn11y preferable to a nuclear power plant.
(Woodson affid., pps. 10-11).
r
. 7.
Substitute natural gas from kelp costs $20.7million BTU. A fired plant burning fuel at $20/mf114m BTP wuld result in a 1 charge of roughly $2/kWh in 1977 dollars.
spared with national average production costs of nuclear plants of 1.5 cents /kWh in 1977, the cost of gas from bioconversion of kelp is not coupetitive by a wide margin with ACNGS for production of electricity.
(Woodson affid., pps. 6-7).
Applicant argues that there is no genuine issue of disputed material fact in that it is clear that a bimaas farm, on a scale necessary to raplace ACNGS, is not a presently raammable, viable alternative, and that, as a matter of law, since NEPA does not require the Nuclear Regulatory Cmnimaion to consider remote and speculative alternatives, its motion should be granted and the contention should be diamissed.
In an undated Answer received on October 6,1980, Mr. Potthoff opposed Applicant's Motion. Therein, in substance, he set forth the following material factt, as to which he contends tivre are genuine issues to be heard:
1.
A marine biomas farm located in the Gulf of Mexico would be a feasible alternative to ACNGS because the design of a 100 foot di-ter prototype marine biomass farm, which has been sur:essfully tested off the calffornia coast, could be enlarged. Pursuant to such an enlarged design, a 195,840 acre (306 sq. mt.).8_/ marine biomass farm could produce annually the energy equivalent of ACNGS, inclusive of preprocessing energy requirements - i.e., 6.7 billion kWh, and thus could replace the proposed nuclear plant (Potthoff's opposing Answer, pps. 2-4).
2.
The cost of constructing a 195,840 acre marine biomass farm in the of Mexico would be $1.6 billion.
(Potthoff's opp. Ans.,
p
).
3.
A marine biomass farm is err,ircrantally preferable to ACNGS because there will be no disturbince to land or water resources and because all pollutants can be removed using current pollution con-trols (Potthoff's opp. Ans., pp. 2, 4).
8/ W note that Intew_ has almost doubled the size of the marine biomass Iarm alluded to in his Contention 6.
9/ W note also that a document (Reference 3) relied upm by Mr. Potthoff does Eat contain cost information from which his $1.6 billion'ff;;ure is derived.
4.
-m
In effect, Mr. Potthoff argues that there are triable issues of fact since he has sham that a marine biomass farm is envia.w-- e=11y superior to i
ACNGS and that it is a reasonable and viable alternative.
f an October 2, 1980, the Staff filed a Response in support of Applicant's Motion For Sumary Disposition-10/
Apparently because the Staff's affiant had stated f
that kelp, a cold water species, probably could not survive in the Gulf of Mexico's warm envirm-meal conditions, Mr. Potthoff fil.ed an manead Supplement wherein he substituted red algae as the species to be cultivated in lieu of kelp. Accord-ing to the Intervenor, red algae equals the energy yield of kelp.
Section 102 of the National Enviramental Policy Act of 1%9, 4? U.S.C.
4332, requires, inter alia, a detailed envia.w- -. ral inpact statenent upon alter-
^
11/
natives to the proposed action However, NEPA does not require an agency to exmana every conceivable alternative, but only those that are reascmable.
Friends Of The Earth v. Coleman, 513 F2d 295, 297 (1975). Moreover, NEPA does not require the exploration of every extree possibility which might be con-jectured but rather requires a consideration of alternatives as they exist and are likely to exist. Carolina Environmental Study Group v. United States, 510 F2d 796, 801 (1975). Further, in Natural Resources Defense Council, Inc. v.
1 Morton, 458 F2d 827,- 837-38 (1972), the Court stated:
Furthermore, the requirement in NEPA of discussion as to reasonable alternatives does not require " crystal ball" inquiry. Mere a M nistrative difficulty does.not interpose 10/ While we read Staff's Response, we gave no consideration to it bacame the 5en effective B 2.749(a) provided only for the sterniasion of an answer opposing 4
a notion for st==ry disposition.
11/ S.9-7 of the Allens Creek ESFES (August 1978) stated that the production of iiiithane on a large scale converted from terrestrially produced organic material "is not now a ramamahle alternative". This section did not discuss a marine binnans farm as an alternative to the proposed nuclear plant.
j
,1
4 7
l 4 such flexibility into the requirements of NEPA as to undercut the duty of coupliarus "to the fullest extent possible." But if i
I this requirement is not rubber, neither is it iron. The statute uust be constructed in,the light of reason if it is not to de-mend what is, fairly spaak4ng, not '=anim3-fully possible, given the obvious that the resources of energy and research - c.nd time -
available to meet the Nation's needs are not infinite.
X X X 2
We do not suppose Congress intended an agency to devote itself to extended discussion of the environmental innact of alternatives ',o remote from reality as to depend on, say, t's repeal of the antitrust laws.
In the last analysis, the requirement as to alternatives is subject to a const.ruction of reasonableness, and we say this wi.th full aware-ness that this ap3 roach necessarfly has both strengths and weaciesses. Where the environ-mental asmets of alternatives are readily idenH A=,le by the agency, it is reasonable to state them - for ready reference by those con-cerned with the consequences of the decision and its alternatives. A: already noted, the agency may make references a studies already made by other agencies (including inpact state-ments) or appearing in responsible journals.
There is reason for concluding that NEPA was not meant to require detailed discus-sion of the erwia.w awal effects of "alterna-tives" put forward in couments when these effects cannot be readily ascertained and the alternatives are daamad only renote and specu-lative possibilities, in view of basic changes required in statutes and policies of other agencies - naking them available, if at all, only after protracted debate and litigation not r=aningfully cocpatible with the time-frame of the needs to which the underlying proposal is addressed.
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. Finally, in Vermnt Yankee Nuclear Power Cora, v. NRDC, 435 U.S. 519, 551 (1978), the Supreme Court said:
... rn=nn sense also teaches us that the
" detailed statement of alternatives" cannot be found wanting sisply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and re-sources are sinply too lind.ted to hold that an inpre statment fails because t% agency failed to ferret out every possible alternative, regard-less of how uncemmn or unknown that alternative may have been at the time the project was approved.
Guided by these precedents, we rust now determine whether there is a genuine issue of material fact which cust be tried. As indicated above, with respect to material facts 3 and 4 as to which Applicant asserts there is no genuine issr.e to be heard, Applicant's well-qualified expert, Dr. Woodson, 12/
relies in part upon two cited studies in support of his opinion (a) that a test farm deployea in Sept mber 1978 off the coast of r w fornia, which is 1,000,000 times smaller than that needed to replace ACNGS, is still only experh al and cannot be classified as a prototype for a practical marine t
biomass energy farm, and (b) that at least thirty years of research and develop-ment of marine biomass production and conversion technologies will be r @ ed before the technical viability of a several thousand acre demnstration plant 12 / "EPRI/GRI Workshop on Biomass Resources and Conversion", US 78-89, Electric P&ar Research Institute, Palo Alto, CA., July 1979; "Conparative Assessment of Marine Biomass Materials", AF-1169, prepared by Science Applications, Inc. for Electric Power Research Institute, Palo Alto, CA., Septecioer 1979.
Dr. Woodson also dersed that he had exanand the 1974 Project Indeoendence report cited by Mr. Pottxff in his contention and that it established that further research was needed to establish the consercial viability of biomass conversion.
l (Woodson affid., p. 1).
l
would be. widely accepted, and that a cr==rcial-scale marine birnaas energy systan could not be available mtil the year 2020, if eve.
In an attenyt to raise a,,,
'% issue of triable fact, Mr. Potthoff barrenly alleges that, W="=a this 100 foot dimeter prototype mrine binna=s farm was stucessfully tested in 1978 off the =14hia coast, "Ihis successful design can be used r
in the Gulf, in a larger design", and that, pursuant to such an enlarged design, a 195,840 (306 sq. mi.) marine birnaas farm could produce annually the energy equivalent of ACNGS.
(Potthoff opposing Answer, pps. 2-4). While 8 2.749 of our Rules of Practice does not require that an answer opposing a motion for si = n= 7 disposition est be supported by an affidavit, it does specify that "a par".y opposing the motion may not rest upon the mere allegatica or danf ala of i
his answer" and that, in the absence of an affidavit, depositions and/or answers i
to interrogatories should be suhnitted which est set forth the specific facts showing that there is a genuine issue of fact. While we appreciate that Mr.
Potthoff is appearing pp_ s_e and while we do not exalt procedural form over sub-e stance, he failed at a bare min 4== to cite any countering documentary material 13/
to show that there is a genuine issue of triable fact. " Mere conclusional, fanciful allegations or daniala in an answer will not defeat a motion for sinnaq disposition. Virginia Electric and Power Cocuany (North Anna Nuclear Power Power Station, Units 1 and 2), AIAB-5PA,11 NRC 451, 453 (1980); Gulf States Utilities Company (River Bend Station, Units 1 and 2), LBP-75-10,1 NRC 246, 248 (1975).
t 13/ As his reference 3, Mr. Potthoff did cite " Marine Biomass Energy Project",
General Electric Coopany Re-Entry Systems Division, October 11, 1979, which, at page 1, reported that such "an open ocean test farm has been successfully deployed -
off the coast of southern california for the purpose of cultivating kelp on an are4 6 4=1 substrate". However, this doctznent states neither that the test farm was a prototype nor that the test farm design, as enlarged, could be used on a large scale cr==rcial basis in the Gulf of Mexicos gro: ring red algae instead of a
-U-j We grant Applicant's Mation for Si==ry Disposition. 'Ihere is no genuine issue of material fact in that it has been clearly established that a marine bw-mass farm is not now, nor, within the time frame of ACNGS, will it be a reasonable and feasible alternative to the proposed Allens Creek plant. Since such a biomass system is so remote and speculative, we are not required to reach and decide the mviremental inpacts thereof vis-a-vis those of the proposed nuclear facility.
Moreover, the FES, as supplemented, cannot be found wanting simply because it failed to include every alternative device and thought conceivable by the mird of man. Veruant Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551 (1978).
Accordingly, Contention 6 is dismiased and Mr. Potthoff is diwiased as a party-intervenor.
Dr. Cheatum concurs but was Lhlable to sign the instant Order.
H1E C
AND U. CENSING BOARD 4
W G
Al Linenberdgef, Jr., Menicer
. _ t h % eel.
h Sheldon J. y Ee, Esqtile, Chairman Dated at Bethesda, Maryland this 13th day of November 1980.
Footnote 13 (cont'd):
M p.
Tndaad, at pages 27-28, the docunent states that "it nust be ran-hered that this first test farm is in no way a prototype of what is perceived for large scale comnercial farms", and, at page 29 states the following:
. The results of this work have provided the incentive to proceed with the determinations of attainable sustained yield, and investigation of the many other biological, microbiological and enginaaring parameters that nust be addressed prior to the accurate assessment of the technical and economic feasibility of the marine biomass concept.
'Ihere is unch work to be done and the risks are considerable; however, l
in view of the potential rewards in tenns of providing a very large renew-able energy supply, the effort and the risks are certainly justified.
~.
._