ML19347B393

Response in Opposition to Tx Pirg Motion for Summary Disposition of Tx Pirg Addl Contention 50 Re Latching. Applicant Matl Statement of Undisputed Facts Remains Unchanged

ML19347B393
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: ML19347B382 ML19347B385 ML19347B386 ML19347B387 ML19347B388 ML19347B389 ML19347B390 ML19347B392 ML19347B393 ML19347B394 ML19347B396 ML19347B398
References
NUDOCS 8010140589
Download: ML19347B393 (13)

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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFTEY AND LICENSING BOARD 4

In the Matter of 5

5 HOUSTON LIGHTING & POWER COMPANY 5

Docket No. 50-466 4

5 5

(Allens Creek Nuclear Generating 5

Station, Unit 1) 5 APPLICANT'S RESPONSE TO TEXPIRG'S MOTION FOR

SUMMARY

DISPOSITION AND APPLICANT'S CROSS-MOTION FOR

SUMMARY

DISPOSITION OF TEXPIRG ADDITIONAL CONTENTION 50

(" LATCHING")

i On August 6, 1980, Intervenor TexPirg moved this i

Board for summary disposition in its favor on TexPirg Addi-i tional Contention 50 (" latching"), in which TexPirg alleges that radioactive emissions from the Allens Creek Nuclear Generating Station (ACNGS) will confuse the guidance systems of aircraft that fly nearby, causing these aircraft to crash.

Applicant Houston Lighting & Power Company now responds to that motion and will show that TexPirg's motion is legally insufficient to support summary disposition.

In support of this response, Applicant attaches the Affidavit of Dr. James R. Sumpter.

Applicant moves that TexPirg's motion be denied.

Applicant further moves that TexPirg's instant pleading and Applicant's response thereto, together with the 2

attached affidavit, be considered by this Board in granting Applicant's separate Motion for Summary Disposition of TexPirg Additional Contention 50, filed on August 4, 1980.

TexPirg's barren, unsupported pleading and attempts at proof are, themselves, convincing additional evidence that the

" latching" contention deserves no trial on the merits.

ARGUMENT A.

Lack of Evidence As a fundamental matter, TexPirg's motion should be denied for lack of competent evidence to support the motion.

This Intervenor filed no affidavit nor any other admissible evidence in support of the motion.

The motion, itself, is unsworn and cannot be evidence.

(See Applicant's Memorandum of Law filed simultaneously herewith, at p. 6.)

1 TexPirg's " Statement of Material Facts" contains citations and quotations from " learned treatises," but these are-clearly hearsay and cannot be admitted in the absence of an expert's affidavit.

(See Applicant's Memorandum of Law, at pp. 5-6).

TexPirg has, in short, offered a motion without evidentiary support in the record.

Upon such a nonexistent record, it cannot be concluded that there is no genuine.

issue as to any material fact and that TexPirg is entitled to a decision as a matter of law.

B.

Insufficient Evidence Even if one assumes that the citations and quotations profferred by TexPirg are admissible as evidence, the motion should be denied because of the absolute insufficiency of this evidence.

First, only three assertions among the eight in TexPirg's " Statement of Material Facts" are supported by this " evidence."

TexPirg baldly offers Assertions 1, 2, 4, 6,

and 8 without any such support.

TexPirg may regard these as self-evident propositions, but they are not.

See the attached Affidavit of Dr. James R. Sumpter.

Second, the authorities cited for the remaining three assertions fail.to support the propositions for which 4

A they are offered and, in some cases, actually support Applicant's motion for summary disposition on this contention.

Assertion 3 cites "the Atomic Energy Commission study, WASH-740 at page 62"b/ to support the proposition that "[d]uring class 9 accidents, huge amounts of radiation can-travel large distances in the air."

As Dr. Sumpter 1/

Theoretical Possibilities and Consequences of Major Accidents in Large Nuclear Power Plants, WASH-740 (Atomic Energy Commission, March, 1957). __

4 points out, the page cited is a theoretical prediction of the lateral dispersion of radioactive material from a major accident with the cloud travelling at ground zero.

(Affidavit at 5).

As such, it is irrelevant to the issue at 4

hand:

whether aircraft would be exposed.

In assertion 5, TexPirg quotes from "the General Electric Transistor Manual,"S/ page 10:

" Transistor crystal material is very sensitive to radiation."

This statement proves nothing.

The burden is on TexPirg to show that the threshhold of sensitivity is so low that emissions from ACNGS would exceed that threshhold for components in passing aircraft.

This burden has not been met.

In the same assertion, TexPirg quotes from "page 380" of " Introduction to Solid State Physics by Kittel": S/

. it is possible to convert th'e conductivity type of an-n-type speciment to p-type by a low concentration of radiation-induced defects."

As Dr. Sumpter points out, the latest edition of this. textbook does not contain this quotation, although earlier editions do.

(Affidavit at footnote 11).

Furthermore, TexPirg's emphasis on the words " low concentration" 2

2f GENERAL ELECTRIC, TRANSISTOR MANUAL (7th ed., 19_).

3/

The latest edition is C. TITTEL, INTRODUCTION TO SOLID STATE PHYSICS (5th ed. 1976).

i f

is misleading.

These words refer to a low concentration of defects, not of radiation exposure.

Again, TexPirg fails to say how much radiation is necessary to cause these defects.

l Finally, in assertion 7, TexPirg cites the " Bell System Technology [ sic] Journal, Vol. 46, Page 1 (3967) and Proc. IEEE, Vol. 54, page 894" S/ for the proposition that radiation can degrade metal-oxide-semiconductor devices through " surface effects."

Once again, TexPirg has done absolutely nothing to establish quantitative radiation exposures necessary to cause such-possible effects.

The Bell System Technical Journal, as Dr. Sumpter points out, 3

states clearly that radiation on the order of 10 rads is necessary before surface effects become noticeable.

Accordingly, TexPirg's cited article, read thoroughly, supports Applicant rather than Intervenor.

(Affidavit at 6).

As Dr. Sumpter shows, the exposure described in the article is much greater than can be expected from ACNGS at the site boundary during the most severe design basis accident.

(Affidavit at 7).

C.

" Material Facts" Evidentiary matters aside,.TexPirg's " Statement of Material Facts" fails, to demonstrate that radiation from i

4/

Mitchell & Wilson, Surface Effects of Radiation on Semiconductor Devices, 46 BELL SYSTEM TECH.

J. 1 (1967T, and Grove & Snow, A Model for Radiation Damage in Metal-Oxide-Semiconductor Structures, S4 PROC. IEEE 894 (1966)..-

W 3

ACNGS will increase the probability of air crashes.

In J

responding to TexPirg's motion, Applicant's only burden is to show this failure.

But Applicant here accepts the greater burden of showing that it is Applicant, not TexPirg, that deserves summary disposition.

1.

Approaches to materiality Two general categories of facts are material to the " latching" contention.

One is based on experience:

Has any aircraft ever crashed due to this phenomenon?

The other is theoretical:

What chain of cause and effect, if logically 1

established and scientifically grounded, will show that

)

ACNGS will increase the probability of air crashes?

a.

Approach based on experience j

TexPirg, for good reason, completely avoids the i

first category of fact.

That is, the motion and " statement" do not allege that any aircraft has ever crashed due to

" latching."

TexPirg does not even resurrect the statement in its contention that actual instances of latching have occurred.

This failure to cite an actual event is fatal to the motion from an evidentiary standpoint.

J Applicant, by contrast, positively argues and proves by affidavit in Applicant's summary disposition motion of August 4 that no air crash has been documented as a result of " latching."

This fact, alone,'is sufficient to

~6-

support Applicant's motion.

The most convincing possible evidence that ACNGS emissions pose no hazard to aircraft is the fact that no aircraft are known to have been harmed by flying near similar plants.

More importantly, it demonstrates that this is not the kind of matter which the NRC must l

pursue through the hearing process simply because TexPirg conceived the contention out of thin air.

b.

Approach based on theory TexPirg relies, instead, on the second category of material facts--the theoretical catego'ry.

This intervenor purports to link together a chain of causative facts, beginning with the emissions from ACNGS and ending with a resultant increase in the probability of air crashes.

As will be shown below, TexPirg's chain of reasoning has not one, but many missing links.

Each of these missing links is another justification 'for summary disposition in Applicant's favor, for the entire ' chain of reasoning logically fails if any one necessary fact is shown to be untrue.

2.

The theoretical chain of facts

)

In order to uphold TexPirg's " latching" theory, the following chain of events must be pleaded and proved:

(1) that ACNGS will emit a certain, quantified amount of airborne radioactive material; (2) that this material will rise in the air to heights necessary to expose passing i.

l aircraft; (3) that, after dispersion in the air and decay over time, this material will remain concentrated enough so that passing aircraft will suffer a certain quantifiable exposure; (4) that these passing aircraft will carry certain specific electronic equipment, such as transistors and other solid state devices; (5) that one or more of these devices is critical to the safety of the aircraft, so that failure or degradation will increase the probability of an air crash; (6) that exposure to a certain quantified amount of radiation will cause failure or degradation of one or more of these critical devices; and (7) that the actual exposure to passing aircraft from ACNGS will exceed the exposure necessary to cause failure or degradation of these critical devices.

TexPirg fails to allege, much less'to prove, meet i

of these points.

TexPirg's assertions numbered 1, 2,

and 3 purport to address the first' point discussed above.

But rather than quantifying the emitsions from ACNGS, TexPirg contents itself with conclusory statements that "large amounts" of radioactivity, "even more radioactivity," or

" huge amounts of radiation" will be emitted.

This failure to quantify, alone, should defeat the motion, for unless it is known how much radiation will be emitted, how can it possibly be shown that this amount is sufficient to cause._-

" latching"?

Applicant, by contrast, shows clearly in Dr.

1 Sumpter's affidavit that ACNGS will not emit enough airborne radiation during either normal operations (Affidavit at 6-7) or during a loss-of-coolant accident (Affidavit at 7-8) to l

cause " latching" in passing aircraft.

As for the so-called

" class 9" accident, it clearly is not in issue before this l

Board.

Board Memorandum and Order of September 15, 1980.

This showing, alone, justifies summary disposition for Applicant, for " latching" cannot possibly occur in the presence of sufficient airborne radiation to be emitted by i

j ACNGS.

Point 2, above, is entirely ignored by TexPirg.

None of the assertions states that the emitted radiation will rise into air traffic lanes.

TexPirg does assert in its third " statement" that radiation from a " class 9 accident.

can travel large distances in the air."

This assertion l

fails in two ways to satisfy point 2.

First, as mentioned above, a so-called " class 9" accident need not be considered in this proceeding.

Second, the " evidence" cited by TexPirg refers to lateral dispersion of radioactive materials, not to vertical disperson.

(Affidavit at 5).

This shortcoming, too, should defeat the motion.

Unless it is alleged and proved that radioactivity will rise into flights paths, how J

can it be said that aircraft will be exposed? '

' Point 3 above is also ignored by TexPirg.

Not one assertion even purports to describe the radiation exposures likely to be suffered by passing aircraft.

Again, this failure should defeat TexPirg's motion.

Unless it is shown that aircraft will suffer a certain, quantifiable exposure, how can it be said that this exposure is sufficient to cause

" latching"?

Applicant, by showing that the exposure to aircraft at the site boundary is insufficient to cause

" latching," shows by necessary implication that the exposures at greater distances are also insufficient.

This fact, alone, justifies summary disposition for Applicant, for in the absence of sufficient exposures, " latching" cannot possibly occur.

TexPirg does assert, no doubt correctly, that 1

aircraft carry electronic gear.

But this intevenor fails to i

l address point 5, above, by failing to allege or show that any one or more electronic components of this gear are critical to plane safety.

TexPirg seems to assume this point is true in assertion 8, which says that defective semiconductor equipment would increase the probability of air crashes.

But assumptions are not enough for summary s

disposition motions.

Are all components critical, only.

some, or none?

Which ones?

These are material issues, unaddressed by TexPirg...

4 1

Point 6 above--that certain exposures of radiation will cause failure or degradation of critical electronic components on aircraft--is inadequately addressed by TexPirg's assertions 5, 6,

and 7.

TexPirg alleges only that certain materials are "very sensitive" to radiation.

However, TexPirg fails to specify the radiation exposure necessary to interfere with the performance of even one electronic component.

i This failure, too, prevents summary disposition for TexPirg.

Applicant, however, shows the actual threshhold of exposure at which degradation of electronic components begins (Affidavit at 6), a threshhold far higher than the anticipated emissions from ACNGS.

This fact, alone, justifies summary disposition for Applicant for the obvious reason..that no " latching" can occur in the absence of emissions powerful enough to cause components to degrade or fail.

And, finally, what of point 7 above?

TexPi rg 1

absolutely fails to provide suffici~ent facts to conclude that the radiation exposures to aircraft from ACNGS will exceed the threshhold necessary to interfere with the performance of critical electronic gear.

TexPirg must assume that, by alleging that "large amounts" of radioactivity will be emitted and that certain components are "very sensitive" to radiation, it has satisfied this point.

This assumption is 1

4 wrong.

To any reader even remotely sensitive to the need for precision in scientific discourse, TexPirg has, by its use of such imprecise and conclusory linguage, raised--not answered--the issue posed by point 7.

TexPirg's language, being essentially unverifiable, cannot serve as a basis for summary disposition for TexPirg.

The entire thrust of Applicant's affidavit, however, shows that the emissions are clearly not "large" enough nor the components " sensitive" enough to cause " latching."

This showing justifies summary disposition for Applicant.

D.

Conclusion TexPirg's counsel has admitted the contention "was probably my weakest contention. "E/

(Prehearing Conference, August 13, 1980, transcript at 1780).

In the face of this confessed weakness, TexPirg now offers " latching," not as a contention deserving of trial, but as one deserving summary disposition in TexPirg's favor.

The motion, however, fails utterly to sustain TexPirg's bold position.

The motion i

i 5/

Counsel, apparently under the misapprehension that the contention had been reworded, presumably thought his words applied only to the "old" version of the contention.

Since that "old" version is the only one before this Board, in part because of Tex irg's refusal to discuss rewording, this t

o rare burst of candor offers TexPirg's own frank evaluation of the " latching" contention.

4.

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demonstrates that the contention is totally without merit and provides further reason for the Board to grant Applicaht's motion for summary disposition.

Since Applicant is itself t

moving for summary disposition on this issue the statement j

of issues remaining to be tried, as required by 10 C.F.R. 5 2.749(a), is inappropriate.

Applicant believes that the material statement of undisputed facts provided in its original motion remains not only unchanged but also unchallenged by TexPirg's motion.

Respectfully submitted, OF COUNSEL:

J.

regory'/C land (

~~

C.

homas @i e, Jr.

BAKER & BOTTS D

ell Hanc k

3000 One Shell Plaza 30 0 One Shell Plaza Houston, Texas 77002 Houston, Texas 77002 i

LOWENSTEIN, NEWMAYi, REIS, Jack R. Newman I"

AXELRAD & TOLL Robert H. Culp 1025 Connecticut Ave., N.W.

David B. Raskin Washington, D. C.

20036 1025 Connecticut Ave.,

N.W.

Washington, D. C.

20036 ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER COMPANY

.