ML20010E691
| ML20010E691 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 09/02/1981 |
| From: | Laverty J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20010E692 | List: |
| References | |
| NUDOCS 8109080155 | |
| Download: ML20010E691 (10) | |
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4 UNITE!1 STATES OF AMERICA NUCLEAR.!EGULATORY COMMISSION 3EFORE THE AT0llIC SAFETY AND LICENSING BOARD t
In the Hatter of PEll;iSYLVANIA POWER AND LIGHT CO.
)
Docket Nos. 50-387 AND 50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC.
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' 4 Bis o
(Susquehanna Steam Electric Station,
)
Units 1 and 2)
)
(
92 SEP 0 41981 $~ ji NRC STAFF MOTION FOR
SUMMARY
UISPOSITION OF CONTENTION 4 u.s.gjy*" y C)
,i N/
I.
INTRODUCTION 4/p g/
On March 6,1979, the Licensing Board adraitted Contention 4 which alleges, in essence, that there is no need for the electricity to be generated by the Susquehanna facility due to Applicants' high reserve margins and due to the potential for very low growth in electrical energy requirements.
The contention further alleges that conservation and solar energy should be considered as alternatives to operation of the Susquehanna facility. The NRC Staff asserts that there is no genuine issue to be heard regarding the statement of facts accompanying this notion and that the Staff is entitled to a sumary decision in its favor, dismissing Contention 4 as a matter of law.
Section II of this pleading will discuss generally the law applicable to motions for summary disposition.Section III will set forth the Staff's reasons for concluding that Contention 4 raises no genuine issue of material fact. Attached to this motion is the Affidavit of Sidney E. Feld and the Statement of Material Facts as to Which There Is No Genuine Issue to DSo ?
be Heard.
S///
8109000155 B10902 DR ADOCK 05000
II. GEllERAL P0lllTS OF LAW The Commission's Rules of Practice provide for summary disposition of certain issues on the pleadings where the filings in the proceeding t
show that there is no genuine issue as to any material fact and that the movant is entitled to a decision as a matter of law.
10 CFR 5 2.749.
As the Commission's summary disposition rule is analogous to Rule 56 of the Federal Rules of Civil Procedure (sumary judgment), Federal court decisions interpreting Rule 56 may be relied on for an understanding of the operation of the summary disposition rule.M Thus, in Adickes v.
Kress & Co., 3G9 U.S. 144, 157 (1570), the Supreme Court held that the party seeking summary judgment has "the burden of showing the absence of a genuine issue as to any material fact." /
To meet this burden, the uovant must eliminate any real doubt as to the existence of any genuine issue of material fact. / To further this goal, the summary disposition rule prrvides that all material facts, set out in the statement which must accompany summary disposition motions, will be deemed [to be admitted unless controverted by the opposing party.
10 CFR $ 2.749(a).
Any other party may serve an answer supporting or opposing the motion for summary disposition.
10 CFR 9 2.749(a). Attached to a motion opposing summary dispositicn must be a separate, short, and concise statement of the material facts as to which it is contended that y
Alabama Power Company (Joseph M. Farley, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974).
2_/
See also Cleveland Electric Illuminating Co. (Perry, Units 1 and 2),
ALAB-433, 6 fiRC 741, 752-54 (1977).
3/
Poller v. Columbia Broadcasting Co., 368 U.S. 464, 468 (1962);
Sartor v. Arkansas llatural Gas Corp., 321 U.S. 620, 627 (1944).
there exists a genuine issue to be heard.
10 CFR $ 2.749(a). A material fact is one which may affect the outcone of the litigation.O Once a motion for summary disposition has been made and supported by affidavit, a party opposing,the motten may not rely on mere allegations, but instead must demonstrate by affidavit or otherwise that a genuine issue exists as to a material fact.10 CFR 2.749(b); Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584,11 NRC 451, 453 (1980). The opposing party need not show that it would prevail on the issues but only that there are genuine material issues to be tried.5] Furthermore. the record and affidavits supporting and opposing the motion must be viewed in the light most favorable to the party opposing the motion.E Finally, the proponent of a motion for sumnary disposition must meet its burden of establishing that it is entitled to judgment as a matter of law even if the opponent of such a notion fails to submit evidence controverting the conclusions reached in documents submitted in support of the motion.E III.
STAFF ARGUMENT 6
Contention 4 asserts, in essence, that there is no need for the electricity to be generated by the Susquehanna facility due to Applicants' high reserve margins and due to the potential for very low l
l 4/
Mutual Fund Investors Inc. v. Putnam Mgt. Co., 533 F. 2d 620, 624 (9th Cir. 1977).
5/
American Manufacturers !!ut. Ins. Co. v. American Broadcasting -
i Paramount Theaters, Inc., 388 F. 2d 272, 280 (2d Cir.1976).
6]
See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877 (1974).
_7f Cleveland Electric Illuminating Co., (Perry, Units 1 and 2),
ALAB-443, 7 NRC 741, 753-54 (1977).
Courts have, however, granted motions for summary judgmant even though certain facts have been disputed when the disputed facts were found not material to the resolution of the legal issues presented.
Riedel v. Atlas Van Lines, 272 F. 2d 901, 905 (8th Cir.1959) cert. denied, 362 U.S.
942 (1960); Newark Morning Ledger Co. v. U.S., 416 F. Supp. 689, 693 (D.N.J. 1975); Aluminum Co. of America v. Burlington Truck Lines, Inc., 342 F. Supp.166,175 (N.D. Ill.1972).
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growth in electrical energy requirements. The contention further alleges that conservation and solar energy should be considered as alternatives to operation of the Susquehanna facility. The Staff t
conclud'es that this contention raises no genuine issue of material fact for the reasons set forth below.
The National Environmental Policy Act (NEPA) requires the Staff to deteraine the benefit to be derived from operation of the Susquehanna facility and to examine alternatives to that operation.
42 USC ls 4332(2)(A)U and 4332(2)(C)(iii). At the construction penn:t stage, the Commission has stated that "need for power" is a shorthand expression for the "oenefit" side of the cost-benefit balance.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), 6 NRC 33, 90 (1977).
The underlying premise of Contention 4 is that this determination of bt'efit or "need for power" must be limited to a finding that the facility is needed because the electricity it will generate, if licensed, will enhance reliability of supply of electricity to Applicants' customers or because it will satisfy growth of electrical energy requirements.
(Affidavit of Sidney E. Feld at 2).
This is not the case.
In fact, sections 7.3 and 7.3.2 of the Final Environmental Statement - Operating License Stage, NUREG-0564 (FES-OL) concluded that the benefit to be derived from operation of the Susquehanna facility is the assurance of a low cost supply of electrical energy through uinimization of production costs.
More specifically, the electricity to be generated by the facility, if licensed, will be substituted for electricity generated by less economical generating units available to Applicants' system.
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This substitution will result in substantial economic savings.
(Feld at 6).
8_/
Calvert Cliffs Coordinating Comm. v. US AEC, 449 F. 2d 1109,1113 &
- n. 9 (1971).
. [
s The Staff's determination of benefit is based on the same consideration identified in the Commission's proposed rule on "Need for Power and Alternative Energy Issues in Operating License Proceedings" which assumes t
=
" conservatively that the plant is not needed to satisfy increased energy needs, but rather is justified, if at all, as a substitute for other generating capacity." 46 FR 39440, 39441 (August 3, 1981).
Thus, it is clear that the Staff's detennination of benefit is not limited to findings on reliability or growth in electrical energy requirements.E With regard tc the contention's allegations that solar and conservation should be considered as alternatives to operation of the Susquehanna facility, the Staff concluded that the only reasonable E
alternative to operation of the plant is not permitting the operation of the plant.
FES-OL, p. 7-1 and p. 7-6.
The Staff reached this conclusion based on its determination that alternatives such as construction at alternative sites, extensive station modification, or construction of facilities utilizing different energy !.ources would each[ require additional construction activity with its accompanying economic and environmental costs.
FES-OL, p. 7-6.
At this point in the process, it is unreasonable to compare i
these greater environmental and economic costs of construction, start up, and operation of alternative sources of electrical energy with the smaller environmental and economic costs of operation of the Susquehanna 9]
Niagara Mohawk Power Copr. (Nine Mile Point Nuclear Station, Unit 2),
ALAB-264, 1 NRC 347, 353 (1975) (In this case, the Appeal Board expressly rejected the intervenor's argument that a need for additional system baseload caps:ity (new power) must be demonstrated before a construction permit could be granted and concluded that the substitution of nuclear-generated power for that produced by conventional means is a legally sufficient justification for construction.)
10f NEPA requires agency decisionmakers to only consider reasonable alternatives.
Friends of the Earth v. Coleman, 513 F. 2d 295 (9th Cir.
1975); Natural Resources Defense Council v. Morton, 458 F. 2d 872 (D.C.
Ci r. 1972). The Commission recognizes this " rule of reason." See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 540 (1977).
facil ity..(Feld at '-4).
Furthermore, even if increased conservation t
savings an'd additional solar applications could be achieved without additional construction costs, it would still be unreasonable to deny an operating license for the Susquehanna facility because any resultant reduction in demand would not displace the need for the Susquehanna facility as a substitute for less economical generating units.
(Feld at 4-5).
The propriety of this determination also is supported by the Commission's proposed rule on "Need for Power and Alternative Energy Sources in Operating License Proceedings." That proposed rule states:
There has never been a finding in a Commission operating license proceeding that a viable environmentally superior alternative to operation of the nuclear facility exists...
Giv the apparent economic advantages of the operation of existing nuc. ear plants, the Commission believes that even an alternative which is shown to be marginalls environmentally superior in comparison to operation of a nuclear facility is un.likely to tip the NEPA cost-benefit balance against issuance of the operating ifcense.
46 FR 39440, 39441. Again, the Commission's proposed rule supports the Staff's determination that the only reasonable alternative tc operation of the Susquehanna facility is not permitting the plant to operate rather than solar energy or conservation.
Finally, the Affidavit of Sidney E. Feld demonstrates that even if the allegations in Contention 4 were true (i.e., excess capacity in Applicants' system, low energy growth, increased conservation savings, and additional solar applications), operation of the Susquehanna l
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_7 facility, as opposed to not operating it, would result in substantial economic savings. An independent analysis by the U.S. Deparbnent of Energy prCJicts even greater savings due to less conservative assumption.
(Feld at 7). Accordingly, the Staff concludes that Contention 4 raises no genuine issue of material fact.
IV. CONCLUSION Based on the foregoing, the NRC Staff believes it is clearly demonstrated that there is no genuine iss a :s to any material fact underlying the allegations in Contention 4.
Thus, the Staff concludes that summary disposition of Contention 4 should be granted in its favor as a matter of law in accordance with 10 CFR 6 2.749.
Respectfully submitted,
'g4f. WGAlt&
essica H. Laverty d
Counsel for NRC Staff Dated at Bethesda,flaryland this 2nd day of September,1981.
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UNITED STATES OF Ai1 ERICA HUCLEAR REGULATORY COMillSSION i
BEFORE THE AT"t11C SAFETY AND LICENSING BOARD In the 11atter of
)
)
PErlNSYLVANIA POWER AND LIGHT C0.
)
Docket Nos. 50-387 Allo
)
50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC.
)
(Susauehanna Steam Electric Station, Units 1 and 2)
)
STATEf1ENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUlf4E ISSUE TO BE HEARD l
1.
The benefit to be derived from operation of the Susquehanna facility is the assurance of a low cost supply of electrical energy-through minimization of production costs. More specifically, the electricity to be generated by the Susquehanna facility, if licensed, will be substituted for electricity generated by less economical generating units available to Applicants' system.
This substitution will result in substantial economic savings.
(Affidavit of Sidney E. Feld at 2).
2.
Past experience amply su sports the conclusion that nuclear power plants are needed.
Licensees authorized to operate such plants do in fact operate them to the maximum extent of their availability to produce electricity.
Licensees do not abandon them in favor of some other means of generating electricity.
(Feld at 2).
3.
The Staff's determination of benefit is not limited to conclusions regarding reliability or growth in ' electrical energy requirements as alleged in Contention 4.
(Feld at 2).
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. 4.
The only reasonable alternative to the proposed action of grantire; an operating license for the Susquehanna facility is denying the license for operation of the facility and thereby not permitting the constructed facility to be added to the Applicants' generating system.
(Feld at 3).
5 Alternatives such as construction at alternative sites, extensive station modification, or ccnstruction of facilitia utilizii.g ditferent energy sources would each require additional construction activity with its accompanying economic and environmental costs, whereas operation of the already constructed plant would not create these. costs. (Feld at 3).
6.
Even if increased conservation savings and additional solar applications could be achieved without additional construction costs, it would still be unreasonable to deny an operating license for the Susquehanna facility because any resultant reduction in demand would not displace the need for the facility as a substitute for less economical generating units. (Feld at 4).
7.
A significant change in (or newly discovered) information concerning the public health and safety or environmental impacts associated with operation of the Susquehanna facility could counter this benefit but none has been revealed since issuance of the FES-CP.
(Feld at 4).
Only about 2 9ercent and 23 percent of PP&L and the PJM interchange 8.
capacities can generate electricity at an equivalent or lower cost to the Susquehanna facility. This capacity represents hydro and other nuclear units on these systems.
(Feld at 5).
9 The remaining 98 percent of PP&L's capacity burns either coal (64 percent) or oil (34 percent) while the reraaining 77 percent of PJil's capacity is dependent on either coal, oil, or combustion E
turbines (oil and gas) in the following proportions:
34 percent, 26 percent, and 17 percent.
(Feld at 5).
10 This strong dependence on fossil fuels shows that if Susquehanna were not to operate, replacement energy would come from more expensive fossil fuels.
(Feld at 5).
- 11. The cost of generating electricity from fossil fuels (coal, oil, and gas) is estimated to exceed the fuel cost associated with nuclear fuel.
(Feld at 6).
- 12. The estimated savings in the first year from the fuel cost differential between nuclear and coal fuel will be substantial and would be expected to increase even if equivalent escasation were assumed for coal and nuclear fuel because the escalation is being applied to a larger base value in the case of coal'. (Feld at 7).
- 13. The U.S. Department of Energy's Division of Power Supply and Reliability recently prepared its independent analysis of the iJel cost differential and estimated the replacement fuel cost for Susquehanna Unit 1 in 1982 to be $13.5 million per month ($162 million on an annual basis). (Feld at 8).
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