ML19347B389

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Response in Opposition to Tx Pirg 800912 Motion for Summary Disposition of Tx Pirg Addl Contention 8 Re Natural Gas Alternative.As Matter of Law,Util Cannot Construct New Gas Fired Plants
ML19347B389
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 8010140573
Download: ML19347B389 (8)
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Docketing & Sm;c,. sj j BEFORE THE ATOMIC SAFETY AND LICENSING BOARD % 0*Ch C

%/ p In the Matter of S S

l HOUSTON LIGHTING & POWER COMPANY S Docket No. 50-466 1

5 (Allens Creek Nuclear Generating S i Station, Unit 1) S APPLICANT'S RESPONSE TO TEX PIRG'S MOTION FOR

SUMMARY

DISPOSITION OF TEX PIRG'S ADDITIONAL CONTENTION NO. 8 RE NATURAL GAS ALTERNATIVE AND CROS.S-MOTION FOR

SUMMARY

DISPOSITION I.

1/

On September 12, 1980,- TexPirg filed a motion for summary disposition of TexPirg Additional Contention 8.

l l In this contention TexPirg alleges, in essence, that a l natural gas-fired electric plant is a feasible.and environ-

! mentally superior alternative to ACNGS for generating the

{ needed base load capacity in the time frame that ACNGS is

! expected to operate. In its motion TexPirg alleges that it I

l is entitled to summary disposition on this contention on the l

basis of five material facts as to which it alleges there are no genuine issues.

l 1,/ Contrary to the representations in Mr. Scott's certif-icate of service, he did not make hand delivery to l counsel for Applicant until September 15, 1980. We l presume that he did not make delivery on the Staff on September 12 and counsel for Applicant was obviously l not able to arrange for overnight delivery on the 12th, as directed by the Board's order of August 21, 1980.

40).40 p

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,f For the reasons discussed below, Houston Lighting i

& Power Company (Applicant) believes that TexPirg has failed j

] to satisfy the standards required to prevail on a motion for i

summary disposition. Applicant has filed herewith a separate

! Memorandum of Law addressing the standards which TexPirg 1

must meet in order to prevail on a motion for summary disposi-I i tion. That Memorandum is referred to herein where appropriate.

1 3

II.

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To dispose of this motion for summary disposition f the Board need focus only on TexPirg's assertedly undisputed allegation that natural gas generation is reasonably avail-able to HL&P. In examining the affidavit of Mr. Johnson, l which presumably provides the basis for this conclusion, it . . -

is readily apparent that Mr. Johnson has established a

contrary conclusion. At pages 6 through 9 of his affidavit, Mr. Johnson flatly concedes that the Powerplant and In-4 dustrial Fuel Use Act would prohibit HL&P from constructing i

i any new gas-fired plants. In order to avoid the inevitability of this statutory prohibition, Mr. Johnson speculates that Congress will amend the Fuel Use Act. TexPirg's entire s

motion is unus predicated upon Mr. Johnson's assertion that-

"(iln the face of such factors now present which were not as j visible at the time of the passage of the Power Plant and Industrial Fuel Use Act of 1978, an alternative federal

action of amending the federal act to allow utilities to construct natural gas facilities appears reasonable."

In short, in order for the Board to grant TexPirg's motion for summary judgment it must conclude, presumably on the basis of Mr. Johnson's affidavit, that Congress is going to amend the Act and permit that which is not now permitted.

Needless to say, this rank speculation on behalf of Mr.

Johnson does not establish a fact as to which there is no dispute.

The one fact as to which there is truly no dispute l

l is that Congress has passed the Powerplant and Industrial 1

SS8301 et sea.

Fuel Use Act, 42 U.S.C. This act establishes two basic prohibitions. The first is that natural gas is not to be used as a primary energy source in any new elec-tric power plant. 42 U.S.C. S8311. Second, the Act estab-  !

l lishes that natural gas will not be used as a primary energy source in any existing power plant after January 1, 1990.

There are a number of exemption procedures avail-able under the Act; however, HL&P has previously examined the exemption procedures and has determined that there is no reasonable probability that they would be able to qualify for an exemption to construct a new plant, nor can HL&P expect to burn natural gas in their present facilities past 1994 even with temporary exemptions. (See Affidavit of Dr. Guy l

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I attached hereto). TexPirg never addresses any of the exemption procedures under the Act and does not explain how ,

Applicant could obtain a sufficient number of exemptions to either construct 1200 MW of new natural gas fired plants or continue to operate 1200 MW of existing plants for another 40 years. The fact is that it is impossible for HL&P to construct and/or continue operation of enough gas fired units to eliminate the need for ACNGS Unit No. 1. (Affi-davit of Dr. Guy).

In its motion TexPirg alleges that EL&P would be entitled to an exemption to the 1990 phase-out requirements of the Fuel Use Act because the City of Houston is in vio-lation of the ambient air quality standards of the Clean Air Act. However, the mbtion is completely unsupported by the evidence because there is no discussion whatsoever in Mr.

Johnson's affidavit with respect to whether the Applicant could qualify for such an exemption. Nowhere does TexPirg explain the relationship between the existence of non-attainment areas within the City of Houston and the environ-mental exemption under the Fuel Use Act. This lack of proof is directly attributable to the fact that the latter does not follow from the former. The Applicant is now planning and constructing new power plants outside of the City of Houston and outside of any of the air quality non-compliance

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areas. (See Affidavit of Mr. McGuire) . Given the ability l

of HL&P to construct plants outside the City of Houston, it is not possible for TexPirg to demonstrate that Applicant is l automatically entitled to a'so-called environmental exemption ,

1

simply because there are some non-attainment areas within l

the City of Houston. See, 10 CFR 5503.34.

1 In sum, Mr. Johnson's affidavit recognizes that if l

HL&P is to construct or continue to operate sufficient gas-i fired capacity to replace Allens Creek, the Fuel Use Act must be amended. This fact is confirmed by Dr. Guy's affi-davit. Thus, the only material fact as to which there is no l

issue is that the Fuel Use Act does prohibit HL&P from i

constructing new gas-fired plants or from operating existing.  ;

l plants beyond 1990. Given this undisputed fact the Board  ;

l must determine that a natural gas-fired plant is not a l l

feasible alternative to ACNGS. The Board may make this determination as a legal matter and without regard to any of TexPirg's assertions with respect to the environmental superiority of natural gas. For this reason Applicant

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! requests that the Board not only deny TexPirg's motion for summary judgment, but also grant summary judgment on this issue in favor of Applicant. In light of this discussion it should be obvious to the Board that there is nothing to litigate on this issue because as a matter of law HL&P is I 1  !

prohibited from constructing new gas fired plants.

i III.

TexPirg's arguments with respect to the environ-mental superiority of natural gas fired generation are irrelevant in light of the legal restrictions on natural gas-fired plants. Applicant need only point out that the affidavit by Mr. Johnson is rife with hearsay and unfounded speculation as to enumerable environmental comparisons. Mr.

Johnson has not established that he has the necessary ex-

pertise to make an evaluation of the matters contained at pages 1 through 4 of his affidavit. Among other short-I comings, Mr. Johnson has demonstrated no scientific or

! engineering expertise, he has not established that he has prepared an environmental analysis, he has not established that he has ever been responsible for evaluating or under-taking the mining of uranium, nor has he established his  !

expertise in the area of natural gas exploration and de-velopment.-2/ Absent some demonstrated expertise in these areas, his assert'ons have no evidentiary value.

I TexPirg also makes the assertion that it is '

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undisputed that there will be sufficient gas available for  ;

1 the next 50 years to fuel sufficient capacity to operate new gas fired plants. TexPirg did not establish this allegedly 2/ Neither Mr. Johnson's educational background nor his work experience qualify him to testify as an expert on any subject matter in his affidavit. (Johnson Dep., ,

December 18, 1979, pp. 48).

undisputed fact since Mr. Johnson's affidavit never dis-cusses natural gas supply. Apparently, TexPirg's sole source of authority is an excerpt from a magazine article in a publication known as "The Nation" issued on July 12, 1980.

l For the reasons stated in Applicant's Menorandum of Law, a newspaper article of this nature is not evidence and pro-

! vides no basis upon which the Board can base any conclusion.

Even if the article were to be deemed evidence in this proceeding, the article does not even support TexPirg's i

assertion. The article does contain some speculation as to the amount of natural gas which could be contained in brine l

l deposits along the Louisiana and Texas coast. The article does not establish, however, that those reserves are "known" i

reserves nor does it establish that those reserves are produceable.  ; i

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While TexPirg urges no finding with respect to a cost comparison between natural' gas and nuclear plants,'the I affidavit filed by Mr. Johnson contains an allegation that l it is cheaper to produce electricity from a new natural gas i

fired plant than it would be to produce the same amount of l electricity from a new nuclear plant. Nothing in the affi-

! davit establishes Mr. Johnson's qualifications to testify as l an expert on the matter of calculating capital costs, dis-count rates, fuel costs or capacity factors. The affidavit of Dr. Guy, HL&P's. Manager of Corporate Planning, estab-lishes that Mr. Johnson's calculations are in error and that in fact it would be more expensive to produce electricity from new gas fired generating facilities rather than a new nuclear powered generating facility.

IV.

This answer establishes as a matter of law that HL&P cannot construct new gas fired plants. There are no material factual issues to be tried, thus there is no need for a statement of issues as provided in 10 C.F.R. 52.749(a).

The Board should conclude that HL&P cannot legally construct new gas fired plants and that a new gas fired plant is not, therefore, a feasible alternative for ACNGS Unit 1. Accord-ingly, the Board should deny TexPirg's motion and should grant summary dismissal in favor of Applicant.

Respectfully submitted, M- N OF COUNSEL: J Gregorg/C eldnd l

. ThomaW B ' dle, Jr. l BAKER & BOTTS rrell Hancock  :

3000 One Shell Plaza 3000 One Shell Plaza )

Houston, Texas 77002 Houston, Texas 77002 J 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 l HOUSTON LIGHTING & POWER COMPANY i

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