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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20063N7471982-10-0606 October 1982 Motion for Termination of Proceedings.Util Decided to Cancel Plant.Certificate of Svc Encl ML20063N7591982-10-0606 October 1982 Withdrawal of Application for CP ML20055A7221982-07-15015 July 1982 Memorandum & Order Denying Jf Doherty 820615 Submittals, Treated as Motion to Reconsider ASLB 820602 Order.Motion Untimely Filed & Failed to Show Significance or Gravity of Issues ML20055A3551982-07-12012 July 1982 Amended Contention 59.Certificate of Svc Encl ML20054L4521982-07-0202 July 1982 Response Opposing J Doherty 820615 Motion to Reopen Record to Add Contention 59.Motion Fails to Establish Timeliness &/Or Significance of Issues Sought to Be Raised.Certificate of Svc Encl ML20054L5531982-07-0202 July 1982 Response Opposing Doherty 820615 Motion to Reopen Record to Add Contention 59.Motion Should Be Considered Motion for Reconsideration of ASLB 820602 Order.Timeliness & Significance of Issues Not Established.W/Certificate of Svc ML20054J9371982-06-28028 June 1982 Response Opposing J Doherty 820615 Request to Reopen Record. Request Improper & Insufficient to Support Relief.Commission Rules Cannot Be Circumvented by Refiling Same Argument After ASLB Ruling Issued.Certificate of Svc Encl ML20054F9861982-06-15015 June 1982 Motion to Reopen Record to Take Evidence on Contention 59. Gravity of Issues Warrants Reopening ML20054G0171982-06-15015 June 1982 Contention 50 Re Brown & Root Deficiencies in Quadrex Rept. Certificate of Svc Encl ML20053D0861982-05-24024 May 1982 Response in Opposition to Util 820519 Motion to Strike Doherty Contention 58 Re Applicant Conduct on Reporting Violations.Contention Should Be Treated as Such,Not as Motion.Certificate of Svc Encl.Related Correspondence ML20052H8621982-05-19019 May 1982 Motion to Strike J Doherty Reply to Applicant 820507 Response to Doherty 820422 Motion to Add Contention 58. Commission Rules Do Not Allow Reply.Certificate of Svc Encl ML20052H4441982-05-14014 May 1982 Reply Opposing Applicant 820507 Response to J Doherty 820422 Motion to Add Contention 58.Contention Should Be Admitted W/Amends.Aslb Should Judge Conduct of Applicants. Certificate of Svc Encl ML20052F3121982-05-0707 May 1982 Response Opposing J Doherty 820422 Motion to Add Contention Re Alleged Failure to Rept Design Defects.Substantively, Motion Is Motion to Reopen Record & Stds Have Not Been Met. Certificate of Svc Encl ML20052D1221982-04-29029 April 1982 Findings of Fact on Supplemental Issues to Tx Pirg Addl Contention 31 Re Technical Qualifications.Certificate of Svc Encl ML20052A4541982-04-22022 April 1982 Submittal of Contention 58 Re Applicant Conduct on Reporting Violations at Plant.Certificate of Svc Encl ML20054E0561982-04-21021 April 1982 Supplemental Findings of Fact on Tx Pirg Addl Contention 31 Re Technical Qualifications.Certificate of Svc Encl ML20050J1111982-04-0606 April 1982 Answers to Second & Third Sets of Interrogatories,Questions 29 & 8 Respectively,Re Quadrex Rept.Certificate of Svc Encl. Related Correspondence ML20050E2961982-04-0505 April 1982 Answers & Objections to Seventh Set of Interrogatories. Certificate of Svc Encl.Related Correspondence ML20050E2891982-04-0505 April 1982 Answers & Objections to Doherty Sixth Set of Interrogatories.Related Correspondence ML20050C4211982-04-0202 April 1982 Objections to Request for Admissions.Requests Untimely, Irrelevant to Issues Before ASLB & Extremely & Unduly Burdensome.Certificate of Svc Encl.Related Correspondence ML20050C4081982-03-31031 March 1982 Answers & Objections to Fifth Set of Interrogatories. Certificate of Svc Encl.Related Correspondence ML20050C4791982-03-29029 March 1982 Answers & Objections to Jf Doherty Fourth Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Matters. Certificate of Svc Encl.Related Correspondence ML20042C6431982-03-29029 March 1982 Motion for ASLB to Call DE Sells as Witness for Tx Pirg Addl Contention 31 & Quadrex-related Matters.Testimony Needed to Explain Why NRC Did Not Immediately Obtain Quadrex Rept. Certificate of Svc Encl ML20042C6181982-03-29029 March 1982 Response Opposing J Doherty 820315 Motion for ASLB to Subpoena Quadrex Corp Employee Witnesses as ASLB Witnesses. Request Is Based on Misperception of Scope of Reopened Hearings.Certificate of Svc Encl ML20050C5091982-03-26026 March 1982 Response to Jf Doherty 20th & 21st Requests for Documents. Certificate of Svc Encl ML20050C5041982-03-26026 March 1982 Testimony of Lj Sas on Tx Pirg Addl Contention 31 Re Quadrex Rept.Rept Raises No Issue as to Whether Ebasco Can Properly Engineer Project.Prof Qualifications Encl ML20050C5011982-03-26026 March 1982 Supplemental Testimony of Jh Goldberg on Technical Qualifications.Brown & Root Terminates Due to Lack of Engineering Productivity,Not Due to Allegations in Quadrex Rept ML20049K0801982-03-25025 March 1982 Answers & Objections to Interrogatories.Certificate of Svc Encl ML20049K0671982-03-25025 March 1982 Reply to Tx Pirg 820315 Addl Proposed Findings of Fact & Conclusions of Law.Certificate of Svc Encl ML20042C5201982-03-25025 March 1982 Motion to Compel Discovery from Applicant & to Postpone Evidentiary Presentations at 820412 Hearings.Applicant Objections to Interrogatories Unsupported & Necessitate Hearings Be Delayed.Certificate of Svc Encl ML20049K0941982-03-23023 March 1982 Answers & Objections to Second Set of Interrogatories. Certificate of Svc Encl ML20049K0841982-03-23023 March 1982 Answers & Objections to Third Set of Interrogatories. Certificate of Svc Encl ML20042C5481982-03-23023 March 1982 Fourth Set of Requests for Admissions Re Quadrex Rept & Tx Pirg Contention 31.Certificate of Svc Encl ML20042B2351982-03-17017 March 1982 Seventh Set of Interrogatories Re Tx Pirg Addl Contention 31 & Quadrex Rept Matters.Certificate of Svc Encl ML20042A4791982-03-17017 March 1982 Response Opposing J Doherty 820310 Motion for Postponement of 820412 Hearings.Sufficient Grounds Not Provided to Justify Delay.Certificate of Svc Encl ML20042B2451982-03-15015 March 1982 Motion for Subpoena of Quadrex Corp Employees.Testimony Necessary for Clear Understanding of Brown & Root Deficiencies Despite Util Supervision & Specific Steps Needed to Correct & Prevent Problems.W/Certificate of Svc ML20042B2381982-03-15015 March 1982 Sixth Set of Interrogatories Re Tx Pirg Addl Contention 31 & Quadrex Rept Matters.Certificate of Svc Encl.Related Correspondence ML20041F0761982-03-10010 March 1982 Fourth Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Rept.Certificate of Svc Encl.Related Correspondence ML20041F0871982-03-10010 March 1982 Motion for Postponement of 820412 Hearing on Tx Pirg Addl Contention 31 & Quadrex-related Matters.Addl Time Needed to Complete Discovery.Certificate of Svc Encl ML20049J6571982-03-0808 March 1982 Answers to First Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Matters.Certificate of Svc Encl ML20041E1741982-03-0505 March 1982 Brief Opposing R Alexander Appeal from ASLB 820112 Order Denying Petition to Intervene.Aslb Did Not Abuse Discretion in Denying Petition.Certificate of Svc Encl ML20041E1201982-03-0505 March 1982 Motion for Order Directing Applicant to Provide Forthcoming Bechtel Quadrex Rept Review.Rept Pertinent to Remaining Issue.Certificate of Svc Encl.Related Correspondence ML20041E1181982-03-0505 March 1982 Third Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Rept Matters.Related Correspondence ML20041E1071982-03-0505 March 1982 First Set of Interrogatories & Request for Production of Documents Re Tx Pirg Contention 31.Certificate of Svc Encl ML20041E1001982-03-0505 March 1982 First Set of Interrogatories & Request for Production of Documents.Certificate of Svc Encl ML20041E0711982-03-0404 March 1982 Second Set of Interrogatories Re Tx Pirg Contention 21 & Quadrex Rept Matters.Certificate of Svc Encl.Related Correspondence ML20049H8881982-03-0101 March 1982 Response Opposing D Marrack 820213 Motion for Review of Dates for Reopening Hearings & Continuance.No Commission Regulations or Atomic Energy Act Provisions Require Applicant Irrevocable Commitment.Certificate of Svc Encl ML20041B5381982-02-22022 February 1982 Reply to Intervenors Proposed Findings of Fact & Conclusions of Law.Certificate of Svc Encl ML20041C0671982-02-22022 February 1982 Response Opposing Tx Pirg 820209 Motion for Addl Time to File Proposed Findings of Fact & Conclusion of Law.Motion Mooted by Tx Pirg Filing Proposed Findings on 820212. Certificate of Svc Encl ML20041B5421982-02-17017 February 1982 First Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Matters.Certificate of Svc Encl.Related Correspondence 1982-07-02
[Table view] Category:PLEADINGS
MONTHYEARML20063N7471982-10-0606 October 1982 Motion for Termination of Proceedings.Util Decided to Cancel Plant.Certificate of Svc Encl ML20054L4521982-07-0202 July 1982 Response Opposing J Doherty 820615 Motion to Reopen Record to Add Contention 59.Motion Fails to Establish Timeliness &/Or Significance of Issues Sought to Be Raised.Certificate of Svc Encl ML20054L5531982-07-0202 July 1982 Response Opposing Doherty 820615 Motion to Reopen Record to Add Contention 59.Motion Should Be Considered Motion for Reconsideration of ASLB 820602 Order.Timeliness & Significance of Issues Not Established.W/Certificate of Svc ML20054J9371982-06-28028 June 1982 Response Opposing J Doherty 820615 Request to Reopen Record. Request Improper & Insufficient to Support Relief.Commission Rules Cannot Be Circumvented by Refiling Same Argument After ASLB Ruling Issued.Certificate of Svc Encl ML20054F9861982-06-15015 June 1982 Motion to Reopen Record to Take Evidence on Contention 59. Gravity of Issues Warrants Reopening ML20053D0861982-05-24024 May 1982 Response in Opposition to Util 820519 Motion to Strike Doherty Contention 58 Re Applicant Conduct on Reporting Violations.Contention Should Be Treated as Such,Not as Motion.Certificate of Svc Encl.Related Correspondence ML20052H8621982-05-19019 May 1982 Motion to Strike J Doherty Reply to Applicant 820507 Response to Doherty 820422 Motion to Add Contention 58. Commission Rules Do Not Allow Reply.Certificate of Svc Encl ML20052H4441982-05-14014 May 1982 Reply Opposing Applicant 820507 Response to J Doherty 820422 Motion to Add Contention 58.Contention Should Be Admitted W/Amends.Aslb Should Judge Conduct of Applicants. Certificate of Svc Encl ML20052F3121982-05-0707 May 1982 Response Opposing J Doherty 820422 Motion to Add Contention Re Alleged Failure to Rept Design Defects.Substantively, Motion Is Motion to Reopen Record & Stds Have Not Been Met. Certificate of Svc Encl ML20042C6181982-03-29029 March 1982 Response Opposing J Doherty 820315 Motion for ASLB to Subpoena Quadrex Corp Employee Witnesses as ASLB Witnesses. Request Is Based on Misperception of Scope of Reopened Hearings.Certificate of Svc Encl ML20042C6431982-03-29029 March 1982 Motion for ASLB to Call DE Sells as Witness for Tx Pirg Addl Contention 31 & Quadrex-related Matters.Testimony Needed to Explain Why NRC Did Not Immediately Obtain Quadrex Rept. Certificate of Svc Encl ML20042C5201982-03-25025 March 1982 Motion to Compel Discovery from Applicant & to Postpone Evidentiary Presentations at 820412 Hearings.Applicant Objections to Interrogatories Unsupported & Necessitate Hearings Be Delayed.Certificate of Svc Encl ML20042A4791982-03-17017 March 1982 Response Opposing J Doherty 820310 Motion for Postponement of 820412 Hearings.Sufficient Grounds Not Provided to Justify Delay.Certificate of Svc Encl ML20041F0871982-03-10010 March 1982 Motion for Postponement of 820412 Hearing on Tx Pirg Addl Contention 31 & Quadrex-related Matters.Addl Time Needed to Complete Discovery.Certificate of Svc Encl ML20041E1201982-03-0505 March 1982 Motion for Order Directing Applicant to Provide Forthcoming Bechtel Quadrex Rept Review.Rept Pertinent to Remaining Issue.Certificate of Svc Encl.Related Correspondence ML20041E1741982-03-0505 March 1982 Brief Opposing R Alexander Appeal from ASLB 820112 Order Denying Petition to Intervene.Aslb Did Not Abuse Discretion in Denying Petition.Certificate of Svc Encl ML20049H8881982-03-0101 March 1982 Response Opposing D Marrack 820213 Motion for Review of Dates for Reopening Hearings & Continuance.No Commission Regulations or Atomic Energy Act Provisions Require Applicant Irrevocable Commitment.Certificate of Svc Encl ML20041C0671982-02-22022 February 1982 Response Opposing Tx Pirg 820209 Motion for Addl Time to File Proposed Findings of Fact & Conclusion of Law.Motion Mooted by Tx Pirg Filing Proposed Findings on 820212. Certificate of Svc Encl ML20041B5901982-02-13013 February 1982 Motion for Postponement of All Action on CP Application Until Applicant States That Util Irrevocably Committed to Building Plant If CP Received.Certificate of Svc Encl ML20040H0761982-02-0909 February 1982 Motion for 30 Addl Days to File Proposed Findings of Fact & Conclusions of Law.Length of Record Necessitates Extension. Decision Would Not Be Delayed Since Addl Hearings to Be Held in Apr 1982 ML20040E2781982-01-29029 January 1982 Requests for Clarification Re R Alexander 811130 Petition to Intervene.J Silberg 820122 Ltr Indicates That Order Denying Petition Issued,But No Order Has Been Served.Certificate of Svc Encl ML20039B7481981-12-17017 December 1981 Response Opposing Tx Pirg 811207 Motions for Addl Testimony, Further Development of Record & Admission of New Contention. Motion Superficial Attempt to Delay Proceeding & Totally Devoid of Merit.Certificate of Svc Encl ML20062M6441981-12-14014 December 1981 Response Opposing Doherty 811015 Renewed Motion for Addl Evidence on Tx Pirg Contention 31.Doherty Failed to Comply W/Aslb 811110 Order.Motion Is W/O Merit & Would Cause Unnecessary Delay.Certificate of Svc Encl ML20062M6241981-12-0707 December 1981 Motion for Tx Pirg to Present Addl Evidence,To Order Applicant to Serve Tx Pirg W/Quadrex Rept & to Rule That Need for Power Is Tx Pirg Contention.Alternatively,Requests Admittance as Tx Pirg Contention.W/Certificate of Svc ML20039B0771981-12-0707 December 1981 Renewed Motion for Addl Evidence on Tx Pirg Addl Contention 31 Re Applicant Technical Qualifications.Specifies Portions of Quadrex Rept,Indicating Organizational Changes That Should Be Made.Certificate of Svc Encl ML20038A8841981-11-20020 November 1981 Response Opposing Doherty 811106 Motion for Addl Testimony on Need for Power.Pleading Construed as Motion to Reopen Record.Burden of Explaining Why ASLB Would Reach Different Result Not Met.W/Certificate of Svc.Related Correspondence ML20010F4791981-09-0303 September 1981 Response Opposing Further Consideration of Radon Releases. NRC Analysis of Radon Releases in Final Suppl to Fes Satisfies NEPA Requirements,Complies W/Commission 780414 Order & Supplies Sufficient Info.Certificate of Svc Encl ML20010G1101981-09-0303 September 1981 Response to ASLB Request Re Positions on ALAB-640.Radon Emissions Determined by ALAB-640 Constitute Significant Addl Environ Impact.Certificate of Svc Encl ML20010A1171981-08-0505 August 1981 Motion to Strike Marrack Prefiled Testimony.Testimony Is Not Specifically Responsive to F Sanders 810205-06 Testimony. Certificate of Svc Encl.Related Correspondence ML20009B2031981-07-0707 July 1981 Response in Opposition to Intervenor Doherty 810622 Request for Leave to File Contention 57.No Good Cause Shown for Late Filing & No Specificity Provided.W/Science News Article & Certificate of Svc ML20005B3801981-06-22022 June 1981 Request for Leave to File & Submission of Contention 57 Re Vulnerability of Control Sys to Electromagnetic Pulses. Issue Has Not Been Made Public Until Recently.W/Certificate of Svc ML19347F4941981-05-0808 May 1981 Reply Opposing Doherty 810423 Filing Re Contention 56, If Filing Is Motion to Add Late Filed Contention. Contention Refs Alleged Problem at Browns Ferry Which Is Not Applicable to Mark III Containments.W/Certificate of Svc ML19347F4661981-05-0808 May 1981 Response Opposing Doherty 810423 Motion to Reopen Record on Need for Power Contention.Aslb Should Issue Order That Motion Is Moot & Direct Applicant to Update Testimony on Need for Power Testimony Later.Certificate of Svc Encl ML20003H9551981-04-29029 April 1981 Motion for Order Adopting Specific Procedures to Govern Conduct of cross-examination During Health & Safety Phase of Proceeding.Procedures Will Ensure cross-examination Not Cumulative.W/Proposed Order & Certificate of Svc ML19343D3891981-04-27027 April 1981 Motion to Strike I Bross 810331 Affidavit.Affidavit Does Not Respond to Ld Hamilton Supplemental Affidavits But Constitutes Personal Attack of Affiant.Certificate of Svc Encl.Related Correspondence ML20126J9451981-04-24024 April 1981 Motion Opposing Applicant 810422 Motion to Preclude Jm Scott Testimony.Tx Pirg & Intervenor Doherty Are Separate Parties ML20003H7981981-04-22022 April 1981 Motion for Addl Testimony & cross-examination on Conservation Techniques,Interconnection & Effects of Const Delay.Proceedings Have Not Addressed These Issues. Certificate of Svc Encl ML20003H7471981-04-22022 April 1981 Motion to Preclude Jm Scott Testimony.Intent of ASLB 810407 Order Was to Preclude Scott from Having Dual Role of Atty & Witness for Any Other Party.Certificate of Svc Encl. Related Correspondence ML20126H9601981-04-0707 April 1981 Request for Order Directing Util to Reissue 810331 Pleading W/Correct Title.Defective Title Did Not Put All Parties on Notice ML20126H9641981-04-0707 April 1981 Response in Opposition to Util & NRC 810330 Motions to Disqualify Tx Pirg Counsel,Jm Scott.Counsel Will Appear as Expert Witness.Public Interest Requires Counsel Presence. Certificate of Svc Encl ML19347D9721981-03-31031 March 1981 Response to NRC & Applicant Responses to J Doherty 810222 Motion for Reconsideration of Admission of Contention 21. Filing of Motion Was Timely Under Circumstances. Certificate of Svc Encl ML19345G4941981-03-30030 March 1981 Brief,In Form of Pleading,Addressing Need to Disqualify Tx Pirg Counsel Per Disciplinary Rules 5-101 & 5-102.Having Chosen to Appear as Witness,Scott Should Be Barred from Participation as Atty.Certificate of Svc Encl ML19345G5831981-03-24024 March 1981 Response for Order Allowing Intervenors to File Id Bross Supplemental Affidavit to Respond to Ld Hamilton Affidavit on Behalf of Util.One Day Delay Should Be Excused Due to Intervenor Attempt to Comply W/Rules.W/Certificate of Svc ML20003D2161981-03-0404 March 1981 Response Opposing Tx Pirg 810217 Motions on Procedural Matters,Referral of Interlocutory Appeal,Certification of Various Issues & Removal of Aslb.Motion Contains Misrepresentations of Alab Rulings.W/Certificate of Svc ML19341D4801981-02-25025 February 1981 Response to Intervenor Doherty Third Supplemental Response to Motion for Summary Disposition.Intervenor Has No Right to File Late Responses,Shows No Good Cause & Info Has No Relationship to Affected Contentions.W/Certificate of Svc ML20003C3161981-02-17017 February 1981 Requests to ASLB for Interlocutory Appeal & Certification of Questions & to ASLAP for Direct Certification of Question Re Ability of Intervenors to cross-examine Witnesses. Certificate of Svc Encl ML20003B0771981-02-0505 February 1981 Response in Opposition to Intervenor Jf Doherty Contention 55.Contention Does Not Address 10CFR2.714 Requirements & No Good Cause Established for Late Filing.Certificate of Svc Encl ML19345E8521981-01-30030 January 1981 Suppl to 810129 Motion Requesting Reversal of 810123 Ruling Denying Intervenor Rentfro cross-examination Opportunity.Evidence Supporting Intervenor Discernible Interest in Issues Outlined.W/Certificate of Svc ML19345E5721981-01-29029 January 1981 Requests ASLB Reconsider Ruling Restricting cross-examination,for Interlocutory Appeal & Certification of Questions.Also Moves Aslab for Directed Certification of Questions & Appointment of New Aslb.W/Certificate of Svc ML19341B6021981-01-29029 January 1981 Response Opposing Intervenor Doherty 810123 Motion to Change Cross Examination Procedures.Repetitious cross- Examination Would Be Avoided If All Intervenors Attended All Proceedings.Certificate of Svc Encl 1982-07-02
[Table view] |
Text
l-9-81 ~%
- N
UNITED STATES OF AMERICA
-hh' NUCLEAR REGULATORY CO?iMISSION ty, ,3 i n '
../
\ ,
sf BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARDsv, ' 1 , , '< > 7'
', e' n/
In the Matter of )
)
HOUSTON LIGHTING & POWER COMPANY ) Docket No. 50-466
)
(Allens Creek Nuclear Generating )
Station, Unit No. 1) )
I .
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.
9 55*) #/
(y 81012soo;)
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 -
+ -g r =
- 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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