ML19347B385
| ML19347B385 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 10/02/1980 |
| From: | Copeland J, Newman J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19347B383 | List: |
| References | |
| NUDOCS 8010140550 | |
| Download: ML19347B385 (18) | |
Text
.
g' October 2, 1980 Ct 9
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%'o UNITED STATES OF AMERICA g
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' NUCLEAR REGULATORY COMMISSION or'
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD C
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In the Matter of S
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HOUSTON LIGHTING & POWER COMPANY S
Docket No. 50-466 S
(Allens Creek Nuclear Generating S
Station, Unit 1)
S APPLICANT'S RESPONSE TO TEX PIRG'S MOTION FOR
SUMMARY
DISPOSITION OF TEX PIRG CONTENTION 1 RE ALLENS CREEK VS. SOUTH TEXAS PROJECT SITE COMPARISON I.
TexPirg has filed a motion for summary disposition of TexPirg Contention 1, which contention alleges that the South Texas Project nuclear site is obviously superior to the Allens Creek site and, therefore, ACNGS Unit 1 should be constructed at the STP site.-1/
TexPirg's motion for summary disposition is founded upon four allegedly undisputed material facts, which may be summarized as follows:
(1) less land would be used if ACNGS Unit 1 is moved to the STP site; (2) less water would be used if ACNGS Unit 1 is moved to the STP l_/
The motion is undated.
Contrary to the representations in Mr. Scott's certificate of service, he did not make hand delivery to counsel for Applicant until September 15, 1980.
We presume that he did not make delivery on the Staff on September 12 and counsel for Applicant was obviously not able to arrange for overnight delivery on the 12th, as directed by the Board's order of August 21, 1980.
010140
i site; (3) there would be less socio-economic impact by moving ACNGS Unit 1 to the STP site; and (4) there would be less impact from accidental releases of radioactivity if ACNGS Unit 1 was located at the STP site.
In order to prevail on its motion, TexPirg must hurdle three very difficult barriers.
The first barrier it must overcome is the legal standard which must be satisfied in order to prevail on a motion for summary judgment.
As discussed in Applicant's Memorandum of Law filed concur-rently herewith, this burden is extremely difficult when evaluating an issue under the National Environmental Policy Act.
Under the NEPA standards the Licensing Board must necessarily engage in a weighing process when it makes its findings with respect to the various environmental impacts
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of the project.
An issue such as alternate site comparisons 1
is obviously one of the broadest licensing issues that can t
be raised within the context of NEPA and involves weighing a myriaa.:f facts and expert opinions.
For this reason, it is difficult to imagine any contention in the entire proceeding that it is weaker candidate for summary dismissal.
The second hurdle for TexPirg is unique to this proceeding.
The Board has already established an extensive evidentiary record and has made findings on the basis of that record.
The Board must look to those findings in
evaluating TexPirg's motion for summary disposition.
Until TexPirg establishes new evidence to dispute those findings, the record stands unchallenged.
A number of TexPirg's allegedly undisputed facts are indeed disputed by the prior findings of the Board.
In order to displace these prior findings TexPirg has a difficult burden of establishing that the findings are now in error on the basis of new evidence.
TexPirg has simply not addressed these findings and has not established that those findings are now in error in light of new evidence.~2/
The final hurdle for TexPirg is the particular standard that applies to this aspect of the NEPA balancing process.
It is not enough for TexPirg to allege and demon-strate that the South Texas Project is marginally superior to the Allens Creek site from the standpoint of a few en-vironmental factors.
It must demonstrate that the South Texas Project site is obviously superior to the Allens Creek site.
The "obviously superior" standard was established by
-2/
In light of the record already established in this proceeding and the findings made by the Board, it is not necessary to file an affidavit reiterating either those findings or the supporting evidence where such findings are referred to herein.
10 C.F.R. 52.74 9 (d).
I the Commission in Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503 (1977), and was affirmed by the courts in New England l
Coalition on Nuclear Pollution v. U.S. Nuclear Regulatory Commission, 582 F.2d 87 (1st Cir. 1978).
The alleged en-vironmental impacts described in TexPirg's motion do not establish that the South Texas site is obviously superior to the Allens Creek site.
II.
I As discussed above, even if each of TexPirg's allegedly uncontested facts were taken as true they do not establish that the South Texas Project site is obviously superior to the Allens Creek site.
The motion is on its face devoid of proof that STP is an'obvicesly superior site.
Moreover, the motion ignores the fact that HL&P has no absolute right to construct an individually-owned third unit at STP.
(Affidavit of R.
M. McCuistion, pp. 2-4).
Given this contractual restriction it is virtually impossible for TexPirg to prevail on this issue.
Nonetheless, Applicant has addressed the major points raised by TexPirg's motion.
1.
Comparative Land Use.
TexPirg alleges that movin~g ACNGS Unit 1 to the 1
j STP site would save several thousand acres of land which could be committed to agricultural use or terrestrial habitat.
1 1 '
In paragraph 2 of its Statement of Facts, TexPirg refers to four different numbers.
These numbers apparently bear no correlation to anything that is provided in the attached affidavits and it is impossible to tell from them what TexPirg contends to be the cumulative impact that could be avoided by moving AC;IGS Unit 1 to STP, Without regard to the inaccuracies underlying TexPirg's allegedly undisputed facts, the basic argument presented by TexPirg is destroyed by two fundamental flaws.
First, TexPirg incorrectly assumes that if ACNGS Unit 1 is moved to the STP site the Allens Creek site would be used for agricultural production and/or terrestrial habitat.
The Allens Creek site is one of the most desirabla power plant sites in the Applicant's service area and Applicant intends to use that site for construction of a power plant whether or not it is a nuclear plant.
(McCuistion affidavit, pp. 1-2).
~Second, TexPirg has failed to establish that the Allens Creek site is in any way significant or unique in terms of its agricultural productivity or as a terrestrial habitat.
TexPirg's failure to demonstrate the significance of the preemption of agricultural land is a fatal defect in TexPirg's motion, particularly in light of the Board's prior findings in its Partial Initial Decision (PID).
Houston Lighting & Power Company (Allens Creek Nuclear Generating 1.
i l
i Station, Units 1 and 2), LBP-75-66, 2 NRC 776 (1975).
In i
that decision the Board male extensive findings with respect to the impact the project would have in terms of land use and lost agricultural production.
After reviewing the record the Board concluded that the project would preempt at most "an insignificant percentage of similar land available for cultivation on national and state levels and a small percentage on a local level."
(PID 174).
The Board also concluded that " land requirements necessary for agricultural production during the life of ACNGS Will not be a limiting factor on agricultural production in the United States in the foreseeable future."
(PID 178).
Not only has l
TexPirg failed to challenge these findings, TexPirg's affiant, Mr. Johnson, has admitted that he has no information to challenge these findings.-3/
Finally, the attached affidavit of Mr. James Hussey establishes that the land which would be preempted by the Allens Creek project is still an insignif-icant portion in the total amount of land available for agricultural production on a national and state basis.
Mr. Johnson's calculation of the dollar impact of lost agricultural production is also fallacious.
The affi-
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davit of Mr. Hussey establishes that the value of agri-cultural production has declined since the Board made its 3/
. Johnson Cap., December 18, 1979, p. 206.
a findings in 1975.
(Hussey affidavit, p.
- 4).
TexPirg has failed to consider the offsetting recreational benefits which would result from construction of the reservoir.
(See PID 155).
This omission is particularly damaging in light of the fact that Mr. Johnson has admitted that if Applicant i
is correct about the recreational benefits that fact would
" weigh heavily" in favor of Allens Creek:
i "Q.
[By Mr. Copeland]
All right, so you would agree, then, if we are correct in terms of what the recreational benefits would be at the Allens Creek lake that that would weigh heavi'ly in. favor of the Allens Creek site in comparison to the South Texas site?
"A.
(By Mr. Johnson]
Yes."~4/
Thus, by TexPirg's own admission the Board cannot make a final determination on TexPirg Contention 1 until it ad-dresses TexPirg's Contention 2 regarding the recreational viability of the cooling lake.
With respect to the question of preemption of terrestrial habitat, the Board previously concluded tnat the construction of the project would have a minimal effect on local flora and fauna in terms of regionwide populations.
4 (PID 121).
Neither the affidavits of Mr. Johnson nor Mr.
4/
Johnson Dep., December 18, 1979, pp. 270-271. - - - - - -
-c, 9
w-
Saxion establish that the Allens Creek project contains some unique environmental habitat.
Furthermore, both Mr. Saxion, and Mr. Johnson have admitted that the Allens Creek site is not ecologically unique.
(Saxion Dep., February 14, 1980, pp. 65-66; Johnson Dep., December 18, 1979, pp. 269-270).
Stripped to its essentials, TexPirg's argument with respect to land use is that the Applicant should not construct a new plant on a " virgin" site when there is another site already under construction which could ac-comodate a third unit.
This argument has been addressed and rejected in Rochester Gas & Electric Corporation, et al.
(Sterling Power Project, Nuclear Unit 1), supra.
As the Board noted in Sterling, it is not enough just to simply establish that land is being cleared for a power plant site.
The Board must look at what is being removed from the site:
"In assessing the environmental harm as-sociated with land clearance, one must look at what is being removed from the site not at just how many acres are involved.
'It does not follow as night to day that every inch of ground spared from a power plant or transmission facility is so much park land preserved.'
Pilgrim, ALAB-479, supra, 7 NRC at 787 Sterling, supra, 8 NRC at 395.
In this instance what is being removed is farm land and terrestrial habitat, both of which are insignif-icant in proportion to the total amounts of acreage other-wise available.
Furthermore, the site is now entirely owned by the Applicant.
The Applicant acquired the site for the purposes of constructing a power plant on the site and still plans to use the site for that purpose irrespective of 1
whether it builds a nuclear plant on the site.
As the Appeal Board noted in Sterling, under these circumstances very little weight can be given to the prior use of the t
site, because it must be presumed that the prior use will
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not continue even if ACNGS is not constructed.
See, Sterling, supra, 8 NRC.at 396.
2.
Water Use.
TexPirg argues in its motion for summary disposi-tion that moving ACNGS Unit 1 to the STP site would reduce the total amount of water consumption.
Without regard to whether TexPirg has accurately calculated the differences in water consumption, it is clear that the alleged difference is not sufficient on its face to establish that the South Texas Project site is obviously superior to Allens Creek, particularly in view of the record which has already been established in this case.
In the PID the Board addressed the question of whether water consumption was a significant problem with respect to the Allens Creek site.
Although the Board was addressing the question in the context of comparing the cooling lake with cooling towers, the Board did conclude
_g_
r that it was unimportant that a cooling lake would require more land and would have a greater consumptive use of water because neither consideration was of overriding importance at the Allens Creek site.
(PID 164).
Thus, even if the Board were to assume that TexPirg has correctly calculated the differences in water consumption when comparing the location of a nuclear unit at either the Allens Creek site 5/
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or the South Texas site, it must conclude on the basis of the record that now exists that such a comparison is of no I
weight because water consumption at the Allens Creek site is
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not a significant problem.
Particularly fatal to TexPirg's analysis is the i
fact that it never challenges the analysis in Section 5.2.1 of the Final Environmental Statement (FES) which is a docu-ment of record in this proceeding (Staf f Exh. No. -1).
The FES establishes that there is sufficient water in the j
Brazos River to serve the naeds of this plant.
- Moreover, TexPirg's expert witness, Mr. Saxion, has admitted on de-l position that the Allens Creek project would not adversely 1/
It is not possible for the Board to ultimately conclude that TexPirg has correctly calculated the differences in water consumption set forth in paragraph number 3 in TexPirg's motion because there is no underlyinJ affi-davit supporting those calculations,.
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affect water availability within that portion of the Brazos 6/
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River basin affected by ACNGS.
Most importantly, Mr.
Saxion stated on deposition that he had no disagreement with Section 5.2.1 of the FES.~7/
l As the Board can see from examination of Mr.
i i
Saxion's affidavit, TexPirg's basic argument is that Mr.
Saxion has speculated that the City of Houston might someday wish to import water from the Brazos River Basin and if they did so they might wish to construct a reservoir where the Allens Creek cooling lake will be located.
TexPirg's argu-ment is most succintly stated in the following question and answer in Mr. Saxion's deposition:
"Q.
(By Mr. Copeland]
So basically then.the only way that Allens Creek would interfere with the ability of Houston to get whatever water it needs from the Brazos is simply because it would preempt a better location for a reservoir?
j "A.
(By Mr. Saxion]
That's correct." 8/
However, Mr. Saxion has admitted in his deposition that the City of Houston is looking primarily to river basins to the east and northeast of Houston for future imports of water.~9/
6,/
Saxion Dep., February 14, 19PC, pp. 32-33.
7/
Id., pp. 50-51.
8,/
Saxion Dep., June 17, 1980, p.
52.
Mr. Saxion reveals that there are, however, two new reservoirs already planned for the Brazos River.
Id., pp. 47-51.
9/
Saxion Dep., February 14, 1980, pp. 58-59.,
Finally, the attached affidavit of Mr. VanSickle is dis-positive of the issue.
Mr. VanSickle's firm is the con-sultant for the City of Houston and his firm has recommended that the City look to the Neches and Sabine Rivers for additional water supplies.
The City's consultant has never recommended the Brazos River as a future water source.
Perhaps the greatest flaw in TexPirg's motion is that they have not established that the South Texas Project site is superior from the standpoint of water conservation.
There is nothing in their affidavit to establish that there is adequate water available at the South Texas site to serve the needs of a third unit.
At most, there is a vague and unsubstantiated allegation in paragraph 10 of Mr. Saxion's deposition that a salt water cooling system could be used at South Texas.
Mr. Saxion is apparently of the view that the South Texas Project site is being cooled by salt water and that there would thus be an unlinited supply of water at that site.
The fact is that that project is being cooled with fresh water from the Colorado River.
This lack of demonstrated understanding is coni: stent with Mr. Saxion's admission in his deposition that he had no expertise in the lM area of cooling systems for nuclear power plants.
In l
l 10/
Saxion Dep., February 14, 1980, pp. 60-61.
l.
e sum, TexPirg's motion and supporting affidavits are devoid of any explanation as to how the South Texas Project site is obviously superior to the Allens Creek site from the stand-point of water consumption.
As discussed in Mr. McCuistion's affidavit there is some doubt at present as to whether HL&P could obtain a sufficient supply of water for a third unit at STP.
Accordingly, there remains a material and disputed l
fact which can only be determined after trial on the merits.
3.
Socio-economic impact.
TexPirg argues that there would be a reduced socio-economic impact if the ACNGS Unit 1 were constructed at the STP site.
The argument in Paragraph 4 of TexPirg's motion is a totally conclusory statement with no evidentiary support in the attached affidavits.
The affidavits them-i selves are nothing but conclusions without any foundation
--11/
whatsoever.
The conclusory nature of the affidavits is rendered all the more worthless by the fact that neither Mr.
i Johnson nor Mr. Saxion have any demonstrated expertise in evaluating socic-economic impacts associated with major energy projects such as a nuclear power plant.
11/
Mr. Johnson admitted on deposition that TexPirg had not undertaken any study to determine whether Bay City, Texas could absorb the impacts from construction of a third unit at the STP site.
(Johnson Dep., December 18, 1979, p. 202)..
l f
Last, but not least, TexPirg has once again failed to address the findings that the Board'has already entered in this proceeding.
The Board has already made extensive findings on the socio-economic impact of the project and has concluded that the " impacts are as likely to be considered favorable as unfavorable and do not affect the conclusions reached in the cost benefit analysis contained in the FES."
(PID 158).
The attached affidavit by Mr. Hussey establishes that the socio-economic benefits would be greater than the socio-economic impacts resulting from construction and operation of the project.
Accordingly, this portion of 4
I TexPirg's affidavit establishes no basis upon which the
. Board can conclude that the STP site is obviously suporior to the Allens Creek site.
4.
Impact of Radioactivity Releases.
The final point raised by TexPirg in its motion for summary disposition attempts to' associate population i
projections at the two sites and the impact of releases of radioactivity on those respective population groups.
The i
basic argument appears to be that in the event of a Class 9 accident there would be a greater total population do'se if the' accident were to take place at the Allens Creek site rather than the STP site.
This allegedly undisputed fact is once again based on unsubstantiated, conclusory statements 4._.
in Mr. Johnson's affidavit.
That affidavit is totally devoid of any facts which could lead one to reach the con-clusion set forth in the motion.
Moreover, TexPirg has totally failed to establish that Mr. Johnson has the neces-sary expertise to calculate population distribution and to undertake radiological dose calculations resulting from accidental releases of radioactivity from a nuclear power 12/
plant.
III.
The affidavits of Messrs. Johnson and Saxion both contain a number of other arguments which are apparently nothing more than gratuitous comments which have no bearing on the motion for summary judgment.
Applicant believes that the motion is fatally defective on its major points and there is no need to burden the Board with a detailed dis-cussion as to the inadequacies and inaccuracies of each sentence and paragraph in the Johnson and Saxion affidavits.
Suffice it to say that neither affidavit amounts to a sub-startive alternate site evaluation.
The Commission's decision
--12/
In addressing this portion of TexPirg's motion, the Board should also consider that in an order dated September 15, 1980, the Board ruled that the environ-mental effects of a Class 9 accident are not to be addressed in this proceeding..
-w w
e e
1 l
in Seabrook, supra, describes the lengthy review process that a nuclear plant must undergo, including the analysis which is to be accorded to possible alternative locations for the reactor.
TexPirg has failed to thoroughly analyze both the costs and the benefits that must be weighed in addressing the issues presented in its motion.
In addition, the facts set forth in TexPirg's motion must be placed in the context of their significance to the overall costs and benefits of building a nuclear plant at one site versus another, and where they are insignificant little, if any, weight should be given to those facts in evaluating alternative sites.
In addition, the unsupported, conclusory statements con-tained in the Saxion and Johnson affidavits should be given no weight since neither witness has established:any expertise It' to testify on the matters contained in their affidavits.
Finally, in considering whether there are triable issues of fact remaining on this issue, the Board should consider the fact that the NRC Staff will supplement the existing record by placing the FES Supplement into evidence.
In Section 9.2 of the FES Supplement, the Staff provides an extensive analysis of the STP site as an alternative and concludes that the STP site is not obviously superior to the Allens Creek site.
Not only does TexPirg ignore the Staff's analysis in its motion, they also ignore the fact that Mr.
Johnson has admitted that TexPirg has done no independent analysis on this issue and is relying on the documents
^
--13/
prepared by Staff and Applicant.
That admission alone is sufficient to foreclose the Board from ruling in favor of TexPirg's motion.
IV.
Attachment A hereto lists in concise form, in i
accordance with 10 C.F.R. 52.749(a), the issues remaining in dispute on TexPirg Contention 1.
TexPirg has failed to establish the undisputed facts which it must prove in order to prevail on a motion for summary disposition.
The motion must be denied.
Respectfully submitted, I
MAA M
(bA J.{Chomas'B1 el)nd OF COUNSEL:
regor C
C le, Jr.
BAKER & BOTTS Drrell Hanc ck 3000 One Shell Plaza 30
) One Shell Plaza Houston, Texas 77002 Houston, Texas 77002 LOWENSTEIN, NEWMAN, REIS, Jack R.
Newman AXELRAD & TOLL Robert H. Culp 1025 Connecticut Ave., N.W.
David Raskin Washington, D. C.
20036 1025 Connecticut Ave., N.W.
Washington, D.
C.
20036 ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER COMPANY 13/
Johnson Dep., December 18, 1979, pp. 228-230.
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Attachment A i
l l
Statement of Material Facts As l
To Which There Exists A Genuine Issue To Be Heard 1.
The STP site is not an obviously superior site to the Allens Creek site.
A.
The land use impacts at the STP site will not be significantly less than the impacts at Allens Creek.
B.
The differential water use at the STP site and the Allens Creek site is not a significant factor in comparing the two sites.
C.
The population distribution around the STP site and the Allens Creek site is not a significant factor in comparing the two sites.
D.
Emergency planning around the STP site and the Allens Creek site is not a significant factor in comparing the two sites.
E.
The socio-economic impacts resulting from con-struction of a nuclear plant at the STP site will not be significantly less than the impacts at Allens Creek.
2.
Even if one or all of the factors in 1 A-D above prove to be significant, the STP site is not "obviously superior" because the costs involved as a result of delay and other factors in moving the ACNGS facility to the STP site are too great.
3.
The STP site is not a feasible alternative to ACNGS because of the STP Participation Agreement and because sufficient water may not be available.
4.
Other environmental factors, not considered in TexPirg's Motion, demonstrate that the STP site is not obviously superior to Allens Creek.
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