ML19340E591

Brief in Form of Pleading Opposing Potthoff Appeal to ASLB 801113 Order Which Granted Applicant Motion for Summary Disposition & Dismissing Potthoff as Intervenor.Certificate of Svc Encl

ML19340E591
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	01/09/1981
From:	Newman J HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8101150011
Download: ML19340E591 (12)

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UNITED STATES OF AMERICA

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In the Matter of )

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

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(Allens Creek Nuclear Generating )

Station, Unit No. 1) )

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APPLICANT'S BRIEF IN OPPOSITION TO THE APPEAL OF F. H. POTTHOFF III PURSUANT TO 10 CFR S 2.762 Houston Lighting & Power Company (Applicant) files this brief in opposition to the appeal taken by intervenor F. H.

Potthoff, III to that part of the Atomic Safety and Licensing Board's (ASLB or Licensing Board) " Order Ruling Upon Motions for Summary Disposition of Environmental Contentions" dated November 13, 1980 (ASLB Order), which granted Applicant's motion for summary disposition on his contention number 6 and dismissed Mr. Potthoff as a party intervenor in this proceeding. For the reasons discussed below, Applicant believes that the ASLB properly granted Applicant's motion for summary disposition and urges the Atomic Safety and Licensing Appeal Board (Appeal Board) to affirm the ASLB's Order.

I. Procedural Background On March 10, 1980, the Licensing Board issued an un-published order */ in which, inter alia, it denied Mr. Potthoff's

• / The background of proceedings leading to the issuance of the March 10, 1980, Order are explained in the Order and in an earlier Licensing Board Order in this case dated November 19, 1979.

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petition for leave to intervene on grounds that he had failed to submit at least one admissible contention as re-quired under 10 CFR S 2.714(b) of the Commission's regula-tions. (ASLB Order at 9-12). In so ruling, the Board rejected Potthoff contention 6 which alleged that the NRC Staff had failed to adequately consider biomass conversion as an alternative to the proposed Allens Creek Nuclear Generating Station (ACNGS). The Board noted that "[n]either in [ contention 6] nor during the special prehearing conference (Tr. 931-32) did Mr. Potthoff provide a basis for alleging that such a large scale marine biomass farm would be an environmentally superior alternative." (Id. at 11-12).

On appeal from the ASLB's Order, the Appeal Board reversed and remanded, with instructions to accept Potthoff contention 6 as litigable and to grant his petition for leave to intervene. Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC l 542 (1980). The Appeal Board ruled that:

[A]11 that was required of Mr. Potthoff on the petition level was to state his reasons (i.e., the basis) for his contention that the biomass alternative should receive additional consideration. That responsibility was sufficiently discharged by his references to Project Independence and his assertion respecting the environmental superiority of a marine biomass farm.

Id. at 548-49 (footnote omitted).

3-The Appeal Board further stated that if Mr. Potthoff's contention was without merit, the Applicant and the Staff should be able to obtain summary disposition of it. (Id. at 550).

On August 4, 1980, Applicant filed with the Licensing Board a motion for summary disposition pursuant to 10 CFR S 2.749, alleging that no genuine issues of material fact were raised by Mr. Potthoff's contention and that Applicant P was entitled to su= mary judgment as a matter of law. Applicant's motion was supported by the affidavit of Dr. Herbert Woodson, Director of the Center for Energy Studies at the University of Texas, who stated that "[a] large scale marine biomass alternative," but rather is a farm is not now a viable

" remote and speculative alternative energy source whose availability is not assured, whose economics are not assured and whose environmental impacts appear to be f ar greater Applicant than those of ACNGS." (Woodson sffidavit at 11).

argued that NEPA does not require the NRC to consider remote and speculative alternatives, citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc._,

435 U.S. 519 (1978).*/

• / In a response dated October 2, 1980, accompanied by an Effidavit of Dr. Paul Kaaciruk, the NRC Staff supported However, the applicant's motion for swnmary disposition.

Licensing Board did not rely on this response since, according to the Board, the then effective S 2.749 did not allow a ,

response to be filed in support of a motion for summary disposition. ASLB Order, at 21, n.10.

_4_

In an undated Answer to Applicant's Motion for Summary Disposition, Mr. Potthoff opposed the motion and argued that triable issues of fact existed since he had shown his proposal to be a reasonable, viable and environmentally superior alternative to ACNGS. No supporting affidavit accompanied Mr. Potthoff's answer. Mr. Potthoff also filed an undated Supplement to his Answer substituting " red algae" as the biomass species to be cultivated in lieu of kelp. */

On November 13, 1980, the Licensing Board issued an Order in which, inter alia, it granted Applicant's motion for summary dispositicn. After examining Mr. Potthoff's Answer opposing the motion, the Licensing Board noted that

"[w]hile we appreciate that Mr. Potthoff is appearing pro se and while we do not exalt procedural form over substance, he failed at a bare minimum to cite any countering documentary material to show that there is a genuine issue of triable fact." ASLB Order at p. 24. The Board explained:

There is no genuine issue of material fact in that it has been clearly established that a marine biomass farm is not now, nor, within the time frame of ACNGS, will it be a reasonable 4

and feasible alternative to the proposed Allens

• / The Licensing Board surmised that Mr. Potthoff substituted red algae for kelp "because the Staff's affiant had stated that kelp, a cold water species, probably could not survive "

in the Gulf of Mexico's warm environmental conditions. . . .

ASLB Order at 21.

i Creek plant. Since such a biomass system is so remote and speculative, we are not required to reach and decide the environmental impacts thereof vis-a-vis those of the proposed nuclear facility. Moreover, the FES, as supplemented, cannot be found wanting simply because it failed i I

to include every alternative device and thought conceivable by the mind of man. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551 (1978). Accordingly, Contention 6 is dismissed and Mr. Potthoff is dismissed as a party-inter- l Venor. l 1

Id. at 25.

On November 17, 1980, Mr. Potthoff filed exceptions to j f

the Licensing Board's Order of November 13, 1980, and subsequently l

filed an undated brief in support of those exceptions.

II. The Licensing Board Properly Ruled that Mr. Potthoff f Failed to Provide Support Sufficient to Raise a Genuine Issue of Triable Fact A. NRC Requirements for Summary Disposition Section 2.749 of the Commission's Rules of Practice encourages summary disposition of matters as to which no ge:.aine issues of material fact exist. See, e.g., Northern States Power Co. (Prairie Island Nuclear Generating Plant, (Units 1 and 2), CLI- 73-12, 6 AEC 241, 242 (1973); puauesne Light Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 246 (1973). It is the responsibility of the movant under S 2.749 to demonstrate the absence of any genuine issue of material ftst; a party opposing such a motion must only show that there exists a genuine issue for trial. Gulf States Utilities Co. (River Bend Station, Units 1 and 2) , LBP-75-10,

1 NRC 246 (1975). However, the nonmoving party must make a substantive factual showing that an issue requirir.g adjudica-tion exists. A party will not be permitted to " avoid summary disposition 'on the mere hope that at trial he will be able to discredit movant's evidence; he must, at the hearing, be able to point out to the court something indicating the existence of a triable issue of material fact.'" Id. at 248, citing 6 Moore's Federal Practice S 56.15(4].

As the Licensing Board noted in its ruling on Mr.

Potthoff's motion, "[m]ere conclusions, fanciful allegations or denials in an answer will not defeat a motion for summary disposition. Virginia Electric Power Co. (North Anna Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 453 (1980);

Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-75-10, 1 NRC 246, 248 (19 7 5 ) . " ASLB Order at 24.

In Applicant's view, Mr. Potthoff's contention 6 was well-suited to summary disposition. The Woodson affidavit filed in support of Applicant's motion clearly demonstrated that a marine biomass farm is not a feasible alternative to an 1100 MWe nuclear plant and Mr. Potthoff failed, by any reasonable measure, to provide the Board with any credible facts to show otherwise. Accordingly, the Board's determiaa-tion comported with the Commission's regulations and the cited case law with respect to granting Applicant's motion for summary disposition.

B. Exceptions Raised by Mr. Potthoff

1. California test farm The first exception raised by Mr. Potthoff in his November 17, 1980, filing */ is that the ASLB erred when it relied upon Applicant's affiant, Dr. Woodson, **/ to show that a test biomass farm deployed off the California coast in 1978 could not be classified as a " prototype" marine biomass energy farm. In his brief, Mr. Potthoff states that the biomass farm which would replace ACNGS "could use a larger version of the pilot marine farm tested off the coast of California, which successfully used a nutrient upwelling system that caused tens of thousands of plants to grow on it, and which also withstood 100 mph storms." Brief, p. 1.

Mr. Potthoff provides no support for this statement; it is purely speculative.

• / Mr. Potthoff's brief contains three unnumbered pages.

Applicant has numbered the pages for convenience of reference.

time

• • / In his brief, Mr. Potthoff suggests for the first teat Dr. Woodson "does not appear to be the expert the Board f

t considers him and they should not have given his opinions This suggestion should be such undue weight." Brief, p. 2.

( rejected out of hand. First, the curriculum vitae of Dr.

I l

Woodson which is attached to his affidavit makes it abundantly clear that Dr. Woodson is an expert "well qualified" to provide an affidavit as to theInfeasibility any of Mr.

event, biomass energy Potthoff as an alternative to ACNGS.

never challenged Dr. Woodson's expertise before the Licensing Board, and having failed to do so, he cannet now raise it on appeal. See, Vermont Yankee Nuclear Power Corp. (Vermont i

Yankee Nuclear Power Station), ALAB-179, 7 AEC 159, 178-79

! (1974), reversed on other grounds, Natural Resources Defense Council v. NRC, 547 F.2d 637- (D.C. Cir. 1976),

reversed sub nom., Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, 435 U.S. 519 (1978);

I Tennessee Valley Authority, (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-463, 7 NRC 341, 347-48 (1978),

i reconsideration denied, 7 NRC 459 (1978).

8-Applicant's affiant, Dr. Woodson, stated that the California test farm consisted of an area of about 10,000 ft 2 or one-fifth of an acre; that it was one million times smaller than a farm needed to replace ACNGS; and that its purpose was to provide data on nutrient and other requirements necessary to produce kelp. Accordingly, Dr. Woodson concluded that the California test farm "can in no way be classified as a prototype for a practical marine biomass e: srgy farm."

(Woodson affidavit, at 5-6).

The Licensing Board concurred with Dr. Woodson's con-clusion and rejected Mr. Potthoff's unsupported assertion that the California test farm could be enlarged to a farm sufficient in size to replace ACNGS. (ASLB Order at 24).

The Board found that Mr. Potthoff had provided no support for this allegation. Indeed, the ASLB cited to one of the studies relied on by Mr. Potthoff which clearly stated that this test farm "is in no way a prototype of what is perceived for large scale commercial farms. . . ." (Id. at 24-25, n.13). Since Mr. Potthoff presented no credible facts to the Board 4.n support of his allegation relating to 'che test farm, the Board properly rejected it. */

• / In his brief, pages 2-3, Mr. Potthoff states that even if the California test farm "could not be a prototype for a 306 sq. mile marine biofarm," experience of the Japanese in cultivating seaweed on " floating bamboo nets" can be so used. Since Mr. Potthoff attempts to rely on information which he failed to present to the Licensing Board at the time it ruled on the motion for summary disposition, he cannot rely on it on appeal. Hartsville, supra, 7 NRC at 348. In any event, this information is totally insufficient (footnote continued on page 9) x w -

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2. Time Frame Required for Biomass Commercial Development Mr. Potthoff's second exception claims that the Board erred in relying on Dr. Woodson's opinion -nat it would take 40 years for development of s large commercial-scale marine biomass energy system. In his brief, Mr. Potthoff cites a paper from the "EPRI/GRI Workshop on Biomass Resources and Conversion" to support his argument that marine biomass technology "will be proven by 1988. . . ." (Brief, p. 3)

In his affidavit, Dr. Woodson considered the document cited by Mr. Potthoff in reaching his conclusions concerning the time frame for the potential large scale commercial development of biomass energy. (Woodson affidavit, pp. 2, 7-9). As Dr. Woodson pointed out, this study admits that:

So far, we lack the basic information to develop a marine source of biomass. Some basic informa-tion is available, but very little research has been directed toward marine organisms as biomass energy sources. . . .

Woodson affidavit, p. 2.

Even if one were to accept Mr. Potthoff's argument that a " prototype" commercial biomass system could be developed by 1988, which is clearly contradicted by the Woodson affidavit, (footnote continued from page 8) to challenge in any way Dr. Woodson's conclusions, based upon his examination of the 1974 Project Independence report and "research data that has become available since the Project Independence report was prepared in 1974," that no biomass farm of the size required to replace ACNGS or "a significant fraction of this size is now in existence or known to be in development." Woodson affidavit, pp. 1, 5.

this e.tergy source would still not be a viable alternative within the time frame contemplated for ACNGS since it would only be a " prototype" plant and presumably would require some indeterminate additional time for demonstration and later practical application of a biomass system large enough to specifically replace ACNGS. Accordingly, this exception raised by Mr. Potthoff has no basis and should be rejected.

III. Conclusion For the reasons discussed above, the Appeal Board ,

should affirm the Licensing Board's Order granting Applicant's motion for summary disposition on Potthoff contention 6.

Respectfully submitted, Je /1/ n ack R. Newmak

/ Robert H. Culp David B. Raskin 1025 Connecticut Avenue, NW Washington, DC 20036 J. Gregory Copeland C. Thomas Biddle Darrell Hancock 3000 One Shell Plaza Houston, Texas 77002 OF COUNSEL: ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER COMPANY LOWENSTEIN, NEWMAN, REIS

& AXELRAD 1025 Connecticut Avenue, NW Washington, DC 20036 BAKER & BOTTS 3000 One Shell Plaza Houston, Texas 77002

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TRE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

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

)

(Allens Creek Nuclear Generating )

Station, Unit No. 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of Applicant's Brief in Opposition to the Appeal of F. H. Potthoff, III Pursuant to 10 CFR S 2.762 were served on the following by deposit in the United States mail, postage prepaid, this 'fti day of January, 1981:

Mr. Alan S. Rosenthal, Chairman Mr. Gustave A. Linenberger Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel U.S. Nuclear P.egulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. John H. Buck Chase R. Stephens Atomic Safety and Licensing Docketing and Service Section Appeal Board Office of the Secretary of the U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Ma. Christine N. Kohl Atomic Safety and Licensing Hon. Leroy H. Grebe Appeal Board County Judge, Austin County U.S. Nuclear Regulatory Commission P. O. Box 99 Washington, DC 20555 Bellville, Texas 77418 Shaldon J. Wolfe, Esq., Chairman Hon. Charles J. Dusek Atomic Safety and Licensing Mayor, City of Wallis Bocrd Panel P. O. Box 312 U.S. Nuclear Regulatory Commission Wallis, Texas 77485

~

Washington, DC 20555 Susan Plettman, Esq.

Dr. E. Leonard Cheatum David Preister, Esq.

Routa 3, Box 350A Texas State Atcorney General's Watkinsville, Gecrgia 30677 Office P. O. Box 12548 l Atomic Safety & Licensing Appeal Austin, Texas 78711 Board i U.S. Nuclear Regulatory Commission

! Washington, DC 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission -

Washington, DC 20555

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