ML19347B396

Response in Opposition to D Marrick 800911 Motion for Summary Disposition of Marrick Contention 2(c).Motion Lacks Statement of Facts or Admissible Evidence & Exceeds Scope of Contention.Certificate of Svc Encl

ML19347B396
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 8010140599
Download: ML19347B396 (14)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In The Matter of 5

5 HOUSTON LIGHTING & POWER 5

Docket No. 50-466 COMPANY 5

5 (Allens Creek Nuclear 5

Generating Station, 5

Unit 1) 5 APPLICANT'S RESPONSE TO MARRACK'S MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION 2(C)

By motion dated September 11, 1980, Dr. David Marrack

("Intervenor") asks this Board to grant sumnary disposition in his favor on his contention 2(c) (which he' cites as Contention 76).

That contention alleges lack of proper environmental consideration of the impact of transmission,

6 lines on migratory waterfowl and proposes an alternative f route from Allens Creek Nuclear Generating Station ("ACNGS")

to O'Brien substation.

Houston _ Lighting & Power Company (" Applicant") responds and urges that Intervenor's motion be denied and that the contention proceed to a hearing on the merits.

ARGUMENT In support of this response, Applicant will show that Intervenor's motion should be denied because:

(1) it lacks

,c.-,-

any statement of material facts as to which movant contends there are no genuine issues to be heard; (2) it lacks any affidavit or new admissible-evidence; (3) it exceeds the scope of the contention; r.nd (4) it fails to carry Intervenor's burden of showing beyond dispute that the transmission lines will significantly affect migratory waterfowl.

A.

Lack of Required Statement.

A summary disposition motion to this Board must have

" annexed to the motion a separate, short and concise statement of the matarial facts as to which the moving party contents that there is no genuine issue to be heard." - 10 CFR 52.749(a)

(1980).

Intervenor provided no such statement with his motion.

Hence, that motion fails to comply with the rules, Pacific Gas & Electric Ccmpany (Stanislaus Nuclear Project, Unit 1), LBP-77-48, 6 NRC 159, 163 (1977), and should be dismissed.

"Such a requirement is not merely a procedural technicality,.but is of substantive: significance."

Id.

t Intervenor's failure to file this required statement of material facts is not harmless to applicant or to this Board, in view of the confusing state of the motion, itself.

Lacking the required statement, Applicant and this Board are forced to guess what facts Intervenor regards as material and beyond dispute.

The motion offers no particular guidance, as it meanders from arg.. mentation to exhibit to legal proposition _ _ _. _

. _ _ _~

c 1

to inadmissible " evidence."

Intervenor properly bears the burden of making sense out' of his motion; Applicant is not required to_-guess at his_ meanings in order to respond.

B.

Lack of Evidence.

Intervenor's motion lacks admissible supporting evidence, aside from his citations to the Final Environmental Statement.

Intervenor's citations and quotations from " learned treatises" are hearsay and must be disregarded.

Applicant's Memorandum of Law. in Support of Responses to Intervenor's Motion for Summary Disposition 4-6 (October 2, 1980).

Likewise, the maps, correspondence, and similar profferings are hearsay.

Furthermore, much.of.Intervenor's. proffered " evidence" is also irrelevant to ACNGS, to the disputed route of_the transmission line, to transmission lines in general, and to waterfowl.

For example, the purported letter to Mr. Webb 1

discusses a transmission line el'aewhere, not the one in question.1/

In addition, many of Intervenor's evidentiary offerings are inadmissible unsworn testimony.

For example, he may not, by reciting his version of what transpired 1/

This letter also contains hearsay, and the hearsay is irrelevant.-

The author of the letter, whose expert credentials are.nowhere established, relies upon a study from a " learned treatise" about bird deaths at television towers in Florida, not waterfowl deaths along transmission lines in Texas..

J..

there, place into evidence the record of proceedings before the Texas Public Utility Commission.2_/

(Intervenor's Motion at 4).

Nor may he draw lines upon maps and declare that they represent waterfowl flightpaths.

Nor may he sprinkle aJsertions of purported fact into the text of his motion and have them accepted as evidence, as when he declares that thousands of ducks winter in certain areas and behave in certain ways.

(Intervenor's-Motion at 2).

Intervenor's motion simply cannot bear a close examination for admissible evidence.

In particular, the following should be stricken:

(1) The reference on page 2 to population studies from the Texas Parks & Wildlife Department, (2) the reference on page 3 to a special report by the._same department, (3) the reference on page 3 to maps (figures I and II) taken from another report by the same agency (and the attached copies of these maps), (4) the reference on page 3 to maps in an article by Ed D. Bystak of the National Audubon Society, (5) the reference on page 3 to the Department of Interior's "Crice.-ia for Transmission Lines," (6) references on page 4 to proceedings before the Texas Public Utility Commission,

. j2 /

This " evidence" is also hearsay.

Intervenor nowhere s

shows that he was a party to this proceeding nor that he has any personal knowledge of what occurred there.

'(7) the reference.on page 4 to the report of the three-day workshop by the Fish & Wildlife. Service, United States Department of the _ Interior, (8) the reference'on page 4 to a 1978 letter to Mr. Robert Webb of Baker & Botts (and the attached copy of the letter, itself), (9) the reference on page 4 to a letter from Dr. R. E. Scott (and the attached copy of the letter, itself), (10) the list of scholarly references attached as an unnumbered page, (11) the captions to Figures I and II, attached as an unnumbered page, and (12) the page headed " Table 5," attached as an unnumbered page, and (13) each assertion of fact made in the motion without even the appearance of support.

These items are all inadmissible.

Stripped of them, the motion is reduced to mere argumentation.

C.

i* cope of Motion.

The scope of Intervenor's motion exceeds the scope of the contention.

Intervenor' refers indiscriminate 1y to two separate power transmission lines running from the plant to different substations--the O'Brien station and the Parish station.

The contention, while it does speak generally of

" transmission routes" beyond the plant site, clearly delimits its scope in the next clause to the O'Brien substation.

All references to the Parish line should be stricken from the motion and be disregarded.

i

• Intervenor protests that the O'Brien reference was

- " grafted" onto the contention and the " heart" of the contention is something else than what it plainly says.

(Intervenor's Motion at 5).

This protest-should be disregarded and stricken.

The Board. adopted this wording of this contention.

Intervenor has already tried, belatedly, to to change the wording, and the Board has rejected his motion.

(' Order, August 21, 1980, at 3).

4 D.

Intervenor's Burden Under NEPA.

Environmental impact statements are required under the National Environmental Policy Act ("NEPA") only for projects "significantly affecting" the environment.

42 U.S.C.A. S 4332(c)

(1977).

Rcmote and speculative consequences need not be

.j discussed.

Environmental Defense Fund, Inc. v. Hoffman, 566 F.2d 1060 (8th Cir.,,1977).

l By filing this motion for summary dispodition, Intervenor undertakes to prove that an environmental statement should i

have been made under the standards above.

He must show that the disputed transmission lines will significantly affect migratory waterfowl and that such an impact is not remote or spbculative.

The showing must be conclusive, beyond dispute.

Intervenor has not made such a showing and he cannot.

His proffered " evidence" is, as discussed above, largely hearsay and inadmissible.

Furthermore, this " evidence" is

contravened by the attached Affidavit of Dr. Schlicht (" Affidavit")

and by the record.

The difference between a possibly "significant" environmental impact and an insignificant one is well illustrated by the different treatment accorded the lake and waterfowl feeding areas in the Final Environmental Statement.

The Staff urged that the proposed transmission line across the lake be resited away from the lake to avoid, among other things, potential risk to waterfowl.

(FES 5.5.1).

1 This recommendation necessarily implies a judgment that such a line might "significantly affect" the environment.

Appli cant disagreed that the effect would be significant (Affidavit at i

12), but nevertheless voluntarily agreed to resite the line.

)

i In like manner, Staff noted--it did not ignore--the presence of waterfowl feeding areas along portions of the transmission line outside the plant.

(FES 2.7.1).

Here, however, the Staff did not urge remedial action.

This action necessarily implies a conclusion that this part of the line will not "signif4rantly affect" the environment.

Applicant endorses this view, and the Affidavit supports it.

Intervenor's motion, then, reduces to nothing more than a quarrel with ths professional judgment of the Staff and the Applicant, based on the facts of the matter, that the transmission line will cause no significant injury to the -.

.- \\

\\

l waterfowl population He offers nothing to rebut this conclusion except argumentation, curious interpretations of

'pplicaac's past actions, and inadmissible evidence.

The motion fails even to state clearly, must less prove, what actual envircnmental effects of the disputed transmission line are alleged to be "significant."

The motion speaks i

vaguely of " hazards," '" adverse impacts," and the like.

j i

Applicant can only assume that these generalities refer to waterfowl deaths resulting from line strikes by waterfowl in flight.

T' # s phenomenon is not environmentally significant and therefore deserves no further consideration under NEPA.

The Affidavit of Dr. Schlicht establishes that there have not been any significant waterfowl deaths alon4 any of Applicant's many miles of transmission lines across the coastal plains of Southeast Texas.

He also reviews the scientific literature and finds no reports of significant waterfowl kills anywhere else.

Nevertheless, he points out, Applicant is sensitive to the matter and, where unusual circumstances have suggested the possibility of added risks, Applicant has voluntarily resited proposed lines.

The present line poser no such risks, however.

Dr. Schlicht's account of Applicant's actual experience speaks for itself and needs no further comment here.

As for.

his review of the literature, however, this point deserves emphasis:

Nowhere did he find an actual report of significant waterfowl kills, as opposed to kills of other species, along transmission lines, as opposed to television towers and other structures.

P~,oably the most striking study is the Lake Sanchris-Kincaid Power Plant report (Affidavit at 6).

There, the risk factors were presumably high because the waterfowl flocked together in great numbers, at times more than 100,000, on a small lake, while only a short distance away, just beyond two transmission lines, lay an enticing slag heap, i

offering grit and food.

Flights there were frequent and at low altitudes.

The result:

only 343 collisions in three years, barely more than 100 per year out of tens of thousands of birds present.

Other literature is entirely consistent throughout:

eleven years of counting dead birds at two lighted Florida television tcwers found only 75 waterfowl casualties (Affidavit at 4); six years of counts along a transmission line through a British bird reserve found only 15 total waterfowl deaths.

(Affidavit at 10).

Other authorities go even further, defining and applying a test of " biological significance."

That waterfow1/ transmission line deaths are biologically ~

significant is " highly doubtful," declares one author.

_9_

l

l (Affidavit at 8.)

Another says biological significance is "not likely to be demonstrable in relation to a single powerline, except in rare cases."

(Id.)

In sum, Intervenor has not shown, either generally or specifically in relation to ACNGS, that a significant problem exists.

Applicant has demonstrated just the opposite.

Furthermore, Applicant has demonstrated that where particular problems arise with the citing of a line, it is willing to consider relocation of the line.

The line in question poses no particular problem, however, and there is no preferable

~

alternative. route.

(Affidavit at 14-15).

4 E.

Conclusion.

I For these reasons above, Applicant urges this Board to dismiss Intervenor's instant motion.

Finally, Applicant is' uncertain how to offer a statement of material facts.as to which Applicant contends genuine issues exist when Intervenor has ignored his preceding obligation to provide the required statement on behtif of his motion.

10 CFR 52.749(a).

Assuming that Intervenor means to say, although he never says so plainly, that waterfowl deatns along ACNGS are biologically significant, Applicant clearly and thoroughly contravenes the point, showing that the case deserves, not only a hearing, but, ultimately, a decision in Applicant's favor.

Applicant's response clearly

-c

,e e--,.

establishes the facts set forth in Attachment A.

Intervenor, having failed here, must now disprove them at trial.

Respectfully submitted, b

OF COUNSEL:

J/. Gre%o '

'peldnd

d. Thoma

'ddle, Jr.

BAKER & BOTTS 6 rrell Ha cock 3000 One Shell Plaza 3000 One Shell Plaza Houston, Texas 77002 Houston, Texas 77002 LOWENSTEIN, NEWMAN, REIS, Jack R. Newman AXELRAD & TOLL Robert E. 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

ATTACHMENT "A" APPLICANT'S STATEMENT OF MATERIAL FACTS IN GENUINE ISSUE 1.

Applicant's years of experience show that few, in any, waterfowl die by striking Applicant's many miles of transmission lines, and no evidence suggests such a problem will occur along the transmission line from ACNGS.

2.

Legitimate studies on the subject demonstrate that waterfowl / transmission line deaths are biologically insignificant, even where the risks are far greater than can be anticipated along the ACNGS transmission line.

3.

Even if the waterfowl deaths along the ACNGS transmission line are deemed environmentally significant, no better alternative site is'available.

1 I

i 1

9 4.

/

UNITED STATES OF AMERICA NUCLEAR-REGULATORY COMMISSION

-BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter.of S

S HOUSTON LIGHTING & POWER COMPANY S

Docket No. 50-466 S

(Allens Creek Nuclear Generating S

Station, Unit 1)

S CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Applicant's Response to Marra,ck's Motion for Summary Dispoc'. tion of Contention 2 (C) in the above-captioned pro-ceedi.y were served on the following by deposit in the United States mail, postage prepaid, or by hand-delivery this 2nd day of October, 1980.

Sheldon J. Wolfe, Esq., Chairman Hon. Charles J. Dusek Atomic Safety and Licensing Mayor, City of Wallis Board Panel P. O.

Box 312 U.S. Nuclear Regulatory Commission Wallis, Texas 77485 Washington, D. C.

20555 Hon. Leroy H.

Grebe Dr. E. Leonard Cheatum County Judge, Austin County Route 3, Box 350A P.

O. Box 99 Watkinsville, Georgia 30677 Bellville, Texas 77418 Mr. Gustave A. Linenberger Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D. C.

20555 Washington, D. C.

20555 Mr. Chase-R. Stephens Atomic Safety and Licensing Docketing and Service Section Appeal Board Office of the Secretary U.S. Nuclear Regulatory of the Commission Commission Washington, D. C.

20555 Washington, D. C.

20555 Susan Plettman Richard Black David Preister Staff Counsel Texas Attorney General's Office U.S. Nuclear Regulatory P.'O.

Box 12548, Capitol Station Commission Austin, Texas 78711 Washington, D. C.

20555

,v---

Bryan L. Baker.

Brenda McCorkle 1118 Montrose 6140 Darnell Houston,-Texas-77019 Houston, Texas 77074 J. Morgan Bishop W. Matthew Perrenad 11418 Oak Spring 4070 Merrick

~ Houston, Texas 77043 Houston, Texas 77025 Stephen A.

Doggett F.

H. Potthoff P. O. Box 592 7200 Shady Villa, No. 110 Rosenberg, Texas 77471 Houston, Texas-77055 John F.

Doherty-Wayne E. Rentfro 4327 Alconbury P.

O. Box 1335 Houston, Texas 77021 Rosenberg, Texas 77471 Carro Hinderstein William Schuessler 609 Fannin, Suite 521 5810 Darnell Houston, Texas 77002 Houston, Texas 77074 D. Marrack James M.

Scott 420 Mulberry Lane 13935 Ivy Mount Bellaire,-Texas 77401 Sugar Land, Texas 77478 M VJ J[ Grego y fps 1qind i

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