ML20003A670
| ML20003A670 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 02/02/1981 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-629, NUDOCS 8102040650 | |
| Download: ML20003A670 (16) | |
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UNITED STATES OF AMERICA SJ fyc,
NUCLEAR REGULATORY COMMISSION f
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ATOMIC SAFETY AND LICENSING APPEAL BOARD C
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Administrative Judges:
b l-Alan S. Rosenthal, Chairman N -;..
Dr. John H. Buck
's Christine N. Kohl
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In the Matter of
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g HOUSTON LIGHTING & POWER COMPANY Docket No. 50-466 g
(Allens Creek Nuclear Generating
)
Station, Unit No.1)
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Mr. F.
H.
Potthof f, III, Houston, Texas, appellant pro se,.
Messrs. Jack R. Newman, Robert H. Culp and David B.
Raskin, Washington, D.
C.,
and Messrs.
J. Gregory Copeland, C. Thomas Biddle and Darrell Hancock, Houston, Texas, for the applicant, Houston Light-ing & Power Company.
Mr. Richard L.
Black for the Nuclear Regulatory Commission staff.
DECISION February 2, 1981
( ALA3-6 29)
Last April, by a divided vote, we reversed an order of the Licensing Board which had denied the petition of F. H.
- Potthoff, III, for leave to intervene in this construction permit proceed-ing involving the proposed Allens Creek facility.
ALA3-590, 11 NRC 542.
The reversal was founded on our conclusion, con-trary to that of the Board below, that the petition contained n
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. one litigable contention.
That contention (identified as No. VI) asserted in substance that the construction and operation of a marine biomass farm is both a viable and an environmentally superior alternative to Allens Creek (and therefore should have been fa-r vorably considered in the Final Environmental Statement prepared by the NRC staf f)
Although "determin[ing] t' at Mr. Potthof f must be admitted to the proceeding on the atrength of his contention VI", we took pains to note that this did not " carry with it any implication that we view the contention to be meritorious".
11 NRG at hi, Further, we stressed that it did not perforce follow frca cur decision that the contention would have to be taken up at an evidentiary hearing.
In this connection, we called attention to the availability of the summary disposition procedures set forth in the Commission's Rules of Practice.
Those procedures " provide in reality as well as in theory, an effica-cious means of avoiding unnecessary and possibly time-consuming i
hearings on demonstrably insubstantial issues".
11 NRC at 550.
In compliance with ALAB-590, the Licensing Board issued an order on April 30,-1980 in which it granted Mr. Potthoff's in-tervention petition and accepted his contention VI.
Thereafter, on August 4, the applicant moved for summary disposition of the 1
contention in its favor.
Following receipt of Mr. Po ttho f f 's
. response in opposition to it, the Licensing Board granted the motion in an unpublished order entered on November 13. b/
Mr. Potthof f appeals from this result. =/
The appeal is opposed by both the applicant and the NRC staff.
We affirm.
_1/
The NRC staf f had filed a response in support of 'the motion on October 2, to which was appended the affida-vit of an environmental scientist associated 'with the Oak Ridge National Laboratory.
The Licensing Board expressly declined to consider that response for the assigned reason that, at the time it was submitted, 10 CFR 2.749(a) "provided only for the submission of an answer opposing a motion for sunmary disposition".
Order p. 21, fn. 10.
Effective October 17, 1980 -- several weeks before the Licensing Board acted on the motion -- the Cc= mission revised Section 2.749 (a) to authorize in terms re-sponses " supporting or opposing" motions for summary disposition".
45 Fed. Reg. 68919 (October 17, 1980).
In doing so, the Commission noted that "it has been a long-standing practice of the [NRC] staff to file an answer to the motions of other parties for summary disposition -- in support or in opposition, as appro-priate".
Accordingly, the change in language was characterized as simply a " clarification" of the ' sum-mary disposition rule.
Ibid.
In these circumstances, it is doubtful at best that the. Board was justified in declining to consider the staff response here.
As will later be seen, however, it is not necessary to decide the point in the dispo-sition of the appeal before us.
I 2/
Had other contentions of Mr. Po.tthoff been admitted to the proceeding, the proscription against appeals from interlocutory orders (10 CFR 2.730 (f)) would have come into play.
In other words, he would have had to await the rendition of the Licensing Board's initial decision before complaining to us of the summary disposition of (FOOTNOTE CONTINUED ON NEXT PAGE) e
. I Section 2.749 (a) of the Rules of Practice authorizes "[a]ny party to a proceeding" to " move, with or without supporting af-fidavits, for a decision by the [ Licensing Board] in that partP's f avor as to all or any part of the matters involved in the pro-ceeding".
The motion must be accompanied by "a separate, short and concise statement of the material facts as to which the moving party contends that there is' no genuine issue to be heard".
The Section is equally explicit respecting the obligation
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of a party which opposes the motion.
Its response must include, inter alia, "a separate, short and concise statement of the mate-rial facts as to which it is contended that there exists a genu-ine issue to be heard".
(In this connection, the material facts asserted by the movant "will be deemed to be admitted" unless the opposing party controverts them.), Further, by virtue of Section
- 2. 74 9 (b), "if the motion is properly supported, the opposition may not rest upon ' mere allegations or denials'; rather, the answer '=ust set forth specific facts showing that there is a 1
1 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 2/
l contention VI.
Because, however, that contention pro-
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vided the sole footing for his being allowed interven-tion, the consequence of the summary disposition of it was Mr. Potthoff's dismissal from the proceeding.
See November 13 order, at p. 25.
This being so, there is l
the requisite degree of finality to permit an appeal I
at this juncture.
See Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 758 (1975).
None of the parties to the appeal contends otherwise.
l
. genuine issue of fact'".
Virginia Electric and Power Co. (No rth Anna Nuclear Power Station, Units 1 and 2), ALAS-584, 11 NRC 451, 453 (1980).
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A.
In its required statement of material facts as to which no genuine issue existed, the applicant asserted essentially the i
following:
The Allens Creek nuclear facility is scheduled to commence operation in 1988 and to provide 1,200 MW of base load electrical power." Without allowance being made for preprocessing activities, 2/ it would take a marine biomass farm covering an area in excess of 900 square miles (576,000 acres) to produce an equivalent amount of energy.
No farm of that size is now in existence or known to be under development.
Moreover, even should future research and development of marine biomass production and conversion technologies demonstrate the co=mercial feasibility of establishing a f arm of the size needed to replace the energy output of the Allens Creek facility, such a farm could not be available by 1988.
In addition, according to the applicant's statement, the creation of a marine biomass farm of the requisite dimensions would entail obtaining exclusive control over 15 to 20 percent l
of the _ usable acreage of the Gulf of Mexico from the mouth of-l the Mississippi River to Mexico.
There are no present legal i
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See fn.
5, infra.
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. means by which the applicar.t could obtain title to or exclusive use of that territory.
Finally, the environmental impacts associated with so massive a farm would be " numerous and poten-tially extremely significant" and would exceed those arising frcm construction and operation of Allens Creek.
These several representations were addres' sed in the affi-davit of Dr. Herbert H. Woodson, '/ which also accompanied the summary disposition motion.
As noted in-ALAB-590, in contention VI Mr. Potthoff relied upon the Federal Energy Administration's
" Project Independence Report", issued in November 1974, for the proposition that a marine biomass farm is a viable alternative to Allens Creek.
11 NRC at 544, 547.
Dr. Woodson states that he examined that report and found that it disclosed the need for further research to establish the commercial viability of biomass conversion.
His affidavit states further that the re-search data which had beccme available since 1974 persuaded him that marine biomass is not now a commercially viable energy source for the production of electricity.
l Substantial research and development must be formerly a Professor of Electrical Engineering Dr. Woodson, 4/
first at the Massachusetts Institute of Technology and then at the University of Texas, has been since 1974 the Director of the Center for Energy Studies at the latter institution.
That center is described in his curriculum vitae as "an interdisciplinary research organization that carries on a diverse array'of energy-related projects".
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_7-undertaken, and technological problems overcome, before this energy source can be considered a viable alternative.
That it can become viable
.as an alternate energy source is not a certainty; and, in fact, its practical viability is highly doubtf ul.
Affidavit, p. 1.
In this regard, the affidavit quotes portions of two reports which had been issued by the Electric Power Re-search Institute in 1979 on the subject of marine biomass re-sources.and' conversion.
Id. a t pp. 2-3.
Dr. Woodson proceeds to detail the basis for the applicant's assertion respecting the required size of any marine-biomass farm which might serve to produce the energy equivalent of Allens Creek. b/
He.then takes note of a biological test farm which was established off the California coast in September 1978 and covers an area cf almost'10,000 square feet -- approximately-one-fifth The affidavit stresses the experimental nature of of an acre.
that farm and maintains that it cannot "be classified as a proto-type for a' practical marine biomass energy farm".
Id.-at-pp. 5-6.
The Woodson af fidavit next focuses upon 'the economic aspects It refers of the production of energy through biomass conversion.
5 5/
As earlier seen, the applicant's statement of material fact adverted to-a-576,000 acre farm.
That figure-did not take-into account th'e ~ energy requirements ' for such.
preprocessing activities as harvesting,. transportation and drying. ~ The Woodson affidavit avers (at p. 5) that,'
taking these activities into account, the estimated area needed increases to 960,000 acres (or 1,500 square miles).
t to certain analyses indicating that the unit (kwh) cost of elec-tricity generated by a plcnt fueled with either substitute natural gas (derived from kelp) or ethanol (derived from algae) would greatly exceed that of nuclear-generated power.
Id. at pp. 6-7.
The balance of the af fidavit is directed to the reasons why Dr. Woodson believes (1) "it is clear that a commercial-scale marine biomass energy production system could not possi-bly be available until the yecr 2020 at the very earliest";
(2) no reasonable means exist w. ereby the applicant could ob-tain the use of the needed amount of sea space; and (3) poten-tially very significant environmental impacts would result from the creation of a massive marine biomass farm.
Id. at pp. 7-11.
On the last score, Dr. Woodson alludes both to the effect of covering approximately. 1,000,000 acres of Gulf coastal waters with dense seaweed growing near the surf ace and to the serious problem which might be encountered in disposing of the residue af ter the energy is extracted.
The root of that problem is 1
l that the residue ash would contain appreciable amounts of sulfur t
compounds, as well as other elements characterized by Dr. Woodson as " worrisome".
In the affiant's view,.the Environmental Pro-tection Agency likely would classify the ash as hazardous,.if not toxic, waste.
Id. at c. 11.
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. B.
In his response in opposition to the applicant's motion, and also on the basis of certain referenced studies, Mr. Potthof f asserts (at p. 4) that a marine biomass farm covering an area of 306 square miles (195,840 acres) would produce the energy needed to replace the Allens Creek f acility. 6 /
This is said to repre-sent five percent of the usable area in the Gulf of Mexico.
That such a f arm is a viable alternative to the nuclear plant is said to be demonstrated by the test farm to which Dr. Woodson referred.
Describing it as a " prototype marine f arm" with a 100-foot dia-meter, Mr. Potthof f maintains that it has provided "a friendly environ =ent tor tens of thousands of young kelp plants" and, further, has weathered severe storms.
As he sees it, its design could be employed in the Gulf on a much larger scale.
Id. at p.
3.
The response also asserts that a marine biomass farm would be environmentally preferable because it would not disturb either Although acknowledging that some pollu-land or water resources.
tants would be generated, Mr. Potthoff insists that they could Id.
be removed through the use of " current collution controls".
at p. 4.
_6 /
In a later-filed supplement to his response, Mr. Potthoff noted that that figure assumed the use of kelp.
Because the staff had submitted an affidavit in support of summary disposition which had indicated that kelp is a cold-water species which probably could not survive the warm environ-mental conditions prevailing in the -Gulf of Mexico, ?tr.
Potthoff suggested the use instead of red algae, which he asserted would require a f arm of comparable area.
. C.
Af ter reviewing the content of the Woodson affidavit and Mr. Potthoff's response, the Licensing Board concluded that "it has been clearly established that a marine biomass farm is not now, nor, within the time frame of [Allens Creek], will it be a reasonable and feasible alternative" to the proposed nu-clear plant.
November 13 order, p.
25.
In this connection, the Board noted (id. at p.
24, fn. 13) that the document cited by Mr. Potthof f in support of his reliance upon the results ob-tained frem the California test farm contained the statement that "it must be remembered that this first test farm is in no way a prototype of what is perceived for large scale cc=mercial farms".
II As we observed two years ago in the Hoce Creek proceed-7 ing:- /
The Supreme Court has embraced the doctrine, first enunciated in Natural Resources Defense Council v. Mo rto n, 4 5 8 F. 2d 8 2 7, 537-38 (D.C.
Cir. 1972), that environmental impact state-I ments need not discuss the environment.il ef-fects of alternatives which are " deemed only remote and speculative possibilities."
Ver-mont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S.
519, 551 l
i (1978).
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Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 anc 2), ALA3-515, 9 NRC 14, 33 (1979).
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. The question here thus is whether there is a genuine issue of material fact respecting the viability of the marine biomass alternative to Allens Creek which Mr. Potthoff insists should have been considered (as it concededly was not) in the staff's FES.
If the Licensing Board rightly concluded that no such is-sue exists, it perforce follows that the alternative need not have been discussed in the FES and can properly be excluded from the hearings which are being held on the Allens Creek con-struction permit application.
Even when viewed in the light most favorable to him, it is quite apparent to us that Mr. Potthof f's response to the applicant's motion and supporting affidavit fell far short of countering the principal points made in those papers.
Specif-ically, he of fered little beyond naked assertions to buttress his claim that, contrary to the averments in the Woodson affi-davit, it would be technologically, commercially and legally possible for the applicant to substitute a-marine biomass farm for the proposed nuclear facility.
Insofar as technological feasibility is concerned, the Licensing Board was referred to nothing which might conceiva-bly have' suggested a reasonable likelihood that an operational marine biomass f arm -- whether 306 square miles in area or of the much larger size hypothesized by Dr. Woodson -- could
. be in place by the end of this decade.
It appears without con-tradiction that our country's research and development activ-ities in this sphere of potential energy sources remains in a state of infancy.
Indeed, the California " test farm" was the only concrete example of such an activity alluded to by either Dr. Woodson or Mr. Potthof f.
Leaving aside the finding below that Mr. Potthoff's own references indicated that that farm is intended to serve as a prototype for large-scale commercial not farms (see p. 10, supra),--8 / a long distance almost assuredly 8/
In his appellate brief, Mr. Potthoff states (at p.
2) that "[i]f the [ California]-test farm does not prove
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the feasibility of such a large marine farm, then the experience of the Japanese does".
He then asserts that, in 1968, the Japanese grew 76,400 square miles (191,000 square kilometers) of seaweed on bamboo nets for use aa a food " staple".
This point not having been raised below, it cannot be pressed on appeal.
Tennessee valley Authority (Harts-ville Nuclear Plant, Units lA, 2A, 1B, and 2B),-ALAB-j' 463, 7 NRC 341, 347-48 (1978).
Beyond that,. Mr.
Potthoff's cursory description of the Japanese project is wholly insufficient to rebut the averments of the Woodson af fidavit.
In this regard, as the staff ob-serves in its brief _ (at pp.11-12), the successful.cul-tivation of seaweed as a food source does not carry with it any implication respecting the use of marine biomass for large-scale energy-production.
Mr. Potthoff.also. challenges for the first time on ap-peal Dr. Woodson's expert, qualifications (Br. p. 2).
We summarily reject that challenge both because it was not ' presented to the Licensing Board' and because it is foo tle ss. - While, as Mr. Potthof f stresses, Dr. Woodson is an electrical engineer, his service in recent years as the Director of the University of Texas Center for Energy Studies clearly provides a sufficient basis'for his expression of an expert opinion on the matters ad-dressed.in his affidavit.
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. will have to be traversed before the experience with a 100-foot diameter f arm (covering approximately one-fif th of an acre) might bring about an operational commercial farm embracing several hundred square miles. 9 /
Beyond these considerations, Mr. Potthof f's response was conspicuously silent on another, and equally crucial, aspect of his proposed alternative to the nuclear f acility:
the ability of the applicant to obtain control over a vast portion of the Gulf of Mexico and to foreclose any other use of it.10/
Once again, it matters not whether the marine biomass farm envisaged
--9/
On the appeal, Mr. Potthof f alludes (Br. p. 3) to a time-table contained in one of the references cited at p. 2 of the Woodson affidavit (EPRI/GRI Workshoo on Biomass Resources and Conversion, WS 78-89, Electric Power Re-search Institute, Palo Alto, California, July 1979).
Ac-cording to that vi.metable (fig. 12-1 a t p. 12-2), " con-cept validation" is to take place between 1973 and 1982;
" system development" between 1982 and 1985; and " commercial prototype development" between 1985 and 1988.
But, even if these estimates turn out to have been accurate, they do not advance Mr. Potthof f's claim (Br. p.
- 3) that a
" marine biomass technology will be proven by 1988, the time [Allens Creek] is scheduled to come on line".
We agree with the staff (Br. p. 13) that the term " commercial prototype" must be understood to refer to a demonstration model for the purpose of overcoming technological problems and, as such, cannot be taken as encompassing "a large-scale marine biomass energy system capable of replacing the energy to be produced by the proposed Allens Creek nuclear plant".
10/
In this regard, we can officially notice that the _ Gulf of Mexico is now laden with water transportation routes, oil wells, commercial fishing activities, etc. -- none of which would be compatible with a marine biomass farm.
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. by Mr. Potthoff would involve 306 square m.les of Gulf waters or, rather, might extend over an area several times thar size.
In either event, we are unaware of any mechanism -- now available or likely to becpme available in the foreseeable fu-ture -- whereby this or any otner public utility would be able to appropriate for its own commercial purposes marine territory even approaching such dimensi$ns.11/
The applicant having specifically raised this point in its motion, it was incumbent upon Mr. Potthof f to conf ront it squarely as part of his over-all demonstration that there is a triable issue respecting a reasonable one.12!
whether the biomass alternative is, in fact,
--11/
As previously noted (fn.
8, supra), Mr. Potthoff has supplied very few details regarding the Japanese sea-weed cultivation experience upon which he attempts to rely on this appeal.
Common sense suggests, however, that that cultivation was not a single enterprise con-centrated in one massive area but, instead, was carried out by many individuals or organizations in numerous l
and widely-dispersed areas along the coast of that country.
12/
Indeed, by not controverting the applicant's statement in support of its motion (at p. 12) that "[t]here are currently no legal means of obtaining title to or ex-clusive use of the substantial amount of sea space re-quired to build a-marine biomass farm sufficient to re-place" the Allens Creek facility, Mr. Potthoff may be deemed to have admitted that f act.
See p.
4,. s u p r a.
Because of our conclusion that Mr. Potthof f has not established the existence of a. genuine issue regarding the technological and legal feasibility of his proposed alternative, it is unnecessary to consider that portion of the applicant's motion and the response thereto as was addressed to relative economic or environmental Costs.
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Affirmed.
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It is so ORDERED.
FOR THE APPEAL BOARD 4
M e
C. Je$n Bishop
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l Secrefary to the Appeal Board
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The concurring opinion of Dr. Buck follows, p. 16 infra.
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Dr. Buck, concurring:
'While I am in full accord with the result reached in this decision, I regret to have to say that the record before us has provided no cause for me to reconsider the views I expressed in dissent when this matter was last before us.
See ALAB-590, 11 NRC 542, 553 (19 80.;.
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.s More specifically, as in my judgment was inevitable, the admission of Mr. Potthoff's contention VI to the proceeding as the result of A, LAB-590 served no purpose other than to consume unnecessarily the time of the parties, the Board below and this Board.
That time could have been much more profitably devoted to those issues in the proceeding truly deserving of serious consideration.
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