ML20010F721
| ML20010F721 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 09/09/1981 |
| From: | Woodhead C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20010F722 | List: |
| References | |
| ISSUANCES-FTOL, NUDOCS 8109110239 | |
| Download: ML20010F721 (44) | |
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09/09/81 o
i UtlITED STATES OF A!1 ERICA flVCLEAR REGULATORY C0fV11SSI0il BEFORE THE AT0?lIC SAFETY AllD LICEtlSIflG BOARD In the flatter of
)
DAIRYLAflD POWER COOPERATIVE Docket flo. 50-409 1
(FTOLProceeding)
(La Crcsse Boiling Water Reactor) flRC STAFF A!1ENDt1ENT TO ITS l10TI0tl FOR SU!VtARY DISPOSITI0t!
Background
On June 6,1980 the flRC Staff filed a notion for suonary disposition of all contentions idnitted to this proceeding along with affidavits showing that no material issue of fact existed to require litigation of any contention.
At the second prehearing conference held on June 19, 1980, the Board inquired as to whether the Intervenor possessed any evidence t? present at hearing or in opposition to Staff's sunmary disposition nation. The Intervenor's repre-sentatives made several allegations as to evidence in their possession which they stated contradicted the Staff affidavits subaitted with the sunmary 8109110239 e10909 O]
PDR ADOCK 05000409 G
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. disposition motion.
The Board Chaiman reopenei discoveryE by requesting the Intervenor to submit the referenced infomation to the Board and Parties in the form of a supplemental response to Staff interrogatories and suspenhd the tinc for response to the sumaary disposition motion.
fhe Board stated that the Staff could file an anendment to its pending summary disposition motion to address the supplemental response of the Intervenor.
Subsequently, after receipt of a lengthy supplemental response and many accompanying docu-ments from the Intervenor, the Staff requested and was granted pemission to file second round discovery requests.
The Intervenor's second round response was received on September 15, 1980.
On September 29, 1980 the Board suspended this proceeding until completion of the show cause proceeding in this docket.
By Order of August 19, 1981 the Board rescinded the suspension of the pre-trial procedures in tSis proceeding.
The Staff hereby files an amendment to the pending June 6,1980 motion for summary disposition, addressing only the Intervenor's supplemental response and response to second round interrogatories.
1/
fleither Applicant nor Intervenor had filed any discovery requests during the discovery period which began flovember 30, 1979.
Staff interrogatories served on the Intervenor, Coulee Region Energy Coalition (CREC) produced only a brief and partial resnonse from the Intervenor even after a motion to compel discovery was granted by this Board.
The partial Intervenor response to Staff interrogatories provided no infomation indicating that the Intervenor possessed any evidence to support any allegation made in any contention. Therefore, after close of the discovery period, the Staff filed a motion for summary di position with supporting affidavits showing that the naterial facts concerning each contention are not at issue and that the contentions should be dismissed.
1
. Legal Argument In addition to the legal argument filed on June 6,1980, the Staff submits by this a6endment that summary disposition should be granted by the Board since, once again, the Intervenor has provided no information to indicate that there is any issue of material fact to be litigated in this proceeding nor has the Intervenor alleged or referenced any information or documentary evidence to contradict the Staff affidavits previously filed. Nevertheless, the Intervenor continually states that it has no evidence to support the contention but that its proposed witnesses will provide evidence. As noted by the Board in another proceeding, To pemit a party to make skeletal contentions, keep the bases for them secret, then require its adversaries to meet any conceivable thrust at hearing wauld be patently unfair and inconsistent with a sound record.
Northern States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298, 1300-01 (1977).
The Appeal Board in Susquehanna recently had occasion to address this matter.
To be sure, the license applicant carries the utlinate burden of proof.
But intervenors also bear evidentiary responsibilities.
In a ruling that has received explicit Supreme Court approval, the Commission has stressed that an intervenc" must come forward with evidence " sufficient to require reasonable minds to inquire further" to insure that its contentions are explored at the hearing.
Pennsylvania Power and Light Company et al (Susquehanna Steam Elec-tric Station, Units 1 and 2) ALAB-613,12 NRC 317, 340 (1980) citing Consumers Power Company (flidland Plant, Units 1 and 2) CLI-74-5, 7 AEC 19, 30-32 and fn. 27 (1974) reversed sub nom Aeschliman v.
NRC 547 F.2d 627, 628 (D.C. Cir. 1976) reversed and remanded sub nom.
Vermont Yankee Nuclear Power Corp. v. HRC, 435 U.S. 519, 553-54 (1978).
. The party opposing summary judgment cannot hold back his evidence until trial and must sufficiently disclose what the evidence will be to show that there is a genuine issue of fact to be tried.
Surkin v. Charteris, 197 F.2d 77, 79 (5th Cir.1952); Donnelly v. Guion, 467 F.2d 290 (2nd Cir.1972).
flere allegations or fanciful and suspicious assertions are not sufficient to establish the existence of an issue of material fact.
And certainly an adjudication must be supported by some showing that there is a triable issue of material fact.
Orvis v. Brickman, 95 F. Supp. 605, aff'd 196 F.2d 762 (D.C. Cir.1952); 6 floore's Federal Practice (2d ed.1976) 6 50.15[4]; Radio City flusic Hall v. U.S.,136 F.2d 715 (2nd Cir.1943); Gulf States Utilities Co.
(River Bend Station, Units 1 & 2), LBP-75-10, 1 flRC 246, 248 (1975).
As shown in the discussion below, in responses relevant to each contention, the Intervenor has made a clear admission that it has no infcrnation to show an issue of material fact and no evidence to support the allegations made. These admissions during discovery are, of course, made under oath and are binding upon the Intervenor.
10 CFR 6 2.740(b); Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1) LBP-78-20, 7 NRC 1038, 1045 (1978).
The Staff submits that it has for the second tine met its burden of roof as movant for summary disposition according to the standards set out in Cleveland Electric Illuminating Co. et al. (Perry Nuclear Power Plant, Units 1 & 2) ALAB-443, 6 NRC 741, 754 (1977).
e s The Appeal Board pointed out in River Bend several years ago that., although public participation in Commission proceedings can be of valuable assistance in raising' substantial issues, This is not to say that every intervenor is equipped to nake a meaningful contribution.
Obviously, in some instances at least, it will turn out that none of the issues which are sought to be litigated is of sufficient substantiality to justify extended (if any) consideration at an evidentiary hearing.
But as we have so often pointed out,... the Conmission's summary disposition rule (10 CFR 2.749) provides an ample safeguard against an applicant or the regulatory staff being required to expend time and effort at a hearing on any contention advanced by an intervenor which is mani-festly unworthy of exploration.2/
It is the Staff's position that the Intervenor's Supplemental Response to interrogatories and their response to second round interrogatories, as demonstrated below, show clearly that the " safeguard" of suamary disposition of all contentions should be granted by the Board since the contentions are not based on any factual issues, and that the time and effort required by an adjudicatory hearing is not justified in this proceeding.
-2/
Gulf States Utilities Company, (River Bend Station, Units 1 and 2)
ALAB-183, 7 AEC 222, 227-228 (1974).
The use of summary disposition as a valuable procedure in Commission proceedings was recently pointed out in Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1) ALAB-590,11 NRC 542, 550-51 (1980).
3
. Discussion of the Supplemental Response and the Response to Second-Round Interrogatories Throughout, the supplemental response the Intervenor nakes statements, descritad below, which make citar that all allegations made by the Inter-venor are mere allegations and that it neither possesses nor would be able to produce at hearing, any factual evidence to support its allegations.
Although the supplemental response and the documentary references are quite voluminous, they contain no evidence to support the contentions nor to raise a material issue of fact, and indeed are primarily irrelevant to the con-tentions admitted, as will be shown belor:.
The second-round responses are, again, non-responsive for the nost part and indicate that no evidentiary basis can be provided by the Intervenor in support of the contentions,3/ yet in both responses the Intervenor states that its proposed witnesses can provide data and evidence unknown to Intervenor.
Four of the witnesses proposea, as described by the Intervenor, have no expertise in any of the subjects encompassed by the contentions and the Intervenor admits in the discovery responses that the Intervenor possesses no scientific facts to dispute the Staff affidavits.
(Responses 1A and 1-1(a)(1)).
l 3/
Single numbers of interrogatories or responses refer to the Staff j
interrogatories filed December 14, 1979, and the Intervenor's supple-l mental response filed July 17, 1980.
Double numbers denote second round discovery.
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. The Contentions Contention 2A CREC contends that the excessive off-gas emissions from LACBUR are inimical to public health and safety, and fail to comply with the restrictions set forth in 10 CFR Part 50, Aopendix I.
The issue raised by this contention is that LACBWR off-gas emissions are excessive and do not comply witt. Part 50, Appendix I so as to threaten public health and safety.
Staff interrogatories 2-5 asked for the specific quantity of emissions and specific doses alleged to be excessive by the Intervenor as well as the number of individuals and the area alleged affected by LACBUR off-gas releases.
Intervenor's supplemental response states that LACBWR off-gas releases did not comply with Appendix I in the past when a fuel-failure problea was encoun tered.
(Response 2) This allegation is irrelevant since Appendix I was not a requirement r LACBWR until such time that the off-gas treatment systen was modified in accordance with Appendix I guidelines, and is not even now a legal requirement.
The Applicant's application for technical specifications to implement Appendix I is under review by the Staff, and has not been issued as a license amendment.
Appendix I requires that licensees (whose application to construct a light-water-water-cooled nuclear power reactor was filed prior to January 2,1979) sebmit information concern-ing operating procedures and equipment designed to limit releases to the quantities stated in Appendix I, as well as an application for proposed technical specifications required by 10 CFR G C0.36a.
(See 10 CFR 5 50,
. Appendix I, V.B. 1. and 2.) The Applicant has submitted the required infor-i i
nation and the proposed technical specifications, and at this time is con-plying with Appendix I despite the lack of a license amendment imposing relevant technical specification.
Thus, the effluent limits of Appendix I are not at this time a requirement for LACBliR and, consequently, were not a requirement in the past.
Thus, no " violation" could have occurred as alleged by the Intervenor in response 2.
Therefore, response 2 contains no reference to any facts to support Contention 2A.
Response 2-2 shows that data of past emissions is the only evidence which Intervenor could provide and that it has no knowledge of present emissions.
In the Intervenor's response to second round interrogatories f Staff, it should be noted that the Intervenor stated that the supplemental response to interrogatories consists entirely of the opinion of lis. florse and ifr. flygaard except for the references cited in the attachment to the response. There are many allegations made in both the supplemental and second round response which have no reference to any scientific basis.
It must be concluded therefore that these statements are only baseless assertions made by the signatorias of the responses.
In particular, response 3-3(a)(iv) states that even though the Intervenor stated in response 2-2 that it has no knowl-edge of LACBilR emissions, that, nevertheless it " believes" that Appendix 1 and Part 20 limits are exceeded and assures us that its proposed witnesses l
will be able to provide information to support this allegation made by the Intervenor.
_g.
In response 3, the Intervenor alleges that "since any dose to individuals is harmful, then calculated deses are unnecessary to prove ham to humans."
Despite this admission that it has no knowledge of doses from off-gas
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admissions (admitted also in response 1.C), the Intervenor proceeds to I
reference articles concerning low-level radistion health effects (references 7-25); to allege that FES calculations are inaccurate, [which it claims is shown by a report on a Geman reactor (reference 10,11)]; and to attempt to raise an issue of "world-wide" impacts from LACBWR emissions, which, it states, its proposed witness will prove by " testifying" on "the issue" of radiation exposure and its effect on humans.
The above response (3) to a question asking the specific dose alleged and the reason the alleged dose is considered harmful further demonstrates that Intervenor has no evidence to support Contention 2A, which alleges that LACBtlR off-gas emissions violate Appendix I limits.
The references to articles concerning low-level radiation health effects are not relevant to the allegation of non-compliance with Appendix I.
Additionally,10 CFR 5 50, Appendix I,Section I states that design objectives and limiting conditions for operation conforming to guidelines of Appendix I shall be deened a conclusive showing of compliance with "as low as is reasonably achievable" requirements of 55 50.34a and 50.36a, so that a discussion of low level radiation effects would serve no purpose relevant to this licensing proceeding.O y
Io achieve a change in Commission licensing and regulation standards based on the alleged effects of low level radiation, the Intervenor must petition for rulemaking to challenge Part 20 and Appendix I limits.
- As to the allegation in response 3 that FES calculations are inaccurate because they represent "only one year of exposure", this is clearly frivolous since Appendix I ' equires annual dose calculations.
In response 3-3(d)(i),
the Intervenor, upon being pressed to explain why it challences the FES dose calculation nade on an annual basis, changed tne criginal assertion to one alleging that past emissions were not incorporated into the calculations in the FES. This matter is not relevant because this licensing action must censider the environmental impact of this plant now and in the future.
Past emissions are simply not pertinant, as previously explained.
The references (10 and 11) in the supplemental response 3 to the analysis of the Uhyl reactor emissions and dosc calculations in West Germany, are entirely irrelevant to an assertion that the Staff FES calculations concerning LACBWR emissions are inaccurate,E as discussed below.
The Intervenor,_ both in the supplemental response and the second round discovery response refers to the Heidelberg Report as evidence to dispute the Staff's dose calculations for the Lacrosse plant in the FES.
In parti-cular, in response to second round cuestion 3-3(e)(iii), the Intervenor states that the relevance of the Heidelberg Report is "all too obvious", as 5_/
Reference 11 of the Supplemental Response cites f1RC Translation 520:
Radioecological Assessment of the Whyl fluclear Power Plant.
This report was written by members of the Department of Environmental Protection of the University of Heidelberg, Gemany and consists entirely of calcula-tions based on estimated emissions from the Whyl plant and doses involving the area in Germany surrounding the Whyl plant, flVREG-0668 is an flRC Staff review of this report sponsored by Dr. Edward Branagan, the Staff affiant for Contention 2A.
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. it speaks to the fact that current nodels utilized by the flRC in reaching i
population doses result in grossly inaccurate estinates.
This concept is repeated in Intervenor response 3-3(d)(iii) wherein Intervenor states "Intervenors maintain that all dose calculations are inaccurate models. We do not have contradictory dose calculations, but have supplied Staff with evidence which supports these beliefs."
The Intervenor's attempt to challenge the dose calculations based on the Heidelberg Report rests on a mischaracterization of the Heidelberg Report.
On page 1 of the Heidelberg Report, the authors state "To calculate the radiation exposure levels that are to be expected, the Department of Environmental Protection used a matheaatical model whose principles are described in U.S. flRC Guide 1.109, 1976 and Baker, D.A. et al., 1976". The Staff review of the Heidelberg Report (!1tlREG-0668) states in the abstract, l
page iii, as follows:
"Although the Heidelberg Report assessment is based largely on environmental models described in the fluclear Regulatory Commis-sion (flRC) regulatory guides, the authors of the Heidelberg Report use values for sone nodel parameters that are much higher than the values flRC
,".es".
Thus, Intervenor's reference to the Heidelberg Report does not support its assertion that the models used by the flRC Staff are inaccurate, g;
since USilRC models are used in the Heidelberg Report.
The Intervenor also asser.ted in response 3, without reference to any basis, that the Staf? dose calculations in the FES were based on an assumption of a flat terrain.
This was evidently an extrapolation from the question about e
ep..
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3
. Regulatory Guide 1.109 asked by the Board during the prehearing conference which the Staff has answered in the submission of August 29, 1980.
(flRC Staff Answers to Board Questions Asked at Prehearing Conference). As the FES, (p. 5, n. a) and the answer show, the meteorological basis for Staff dose calculations was specific to the LACBilR area. Additionally, Intervenor's Respense 3-3(c) appears to retract this allegation, so that apparently it is no longer an issue.
In supplemental response 3 the Intervenor, although adaitting in supplemental response 1.C. to a lack of specific dose calculations for LACBUR. nevertheless alleges that doses in excess of 25 nrem are being received by residents living near LACBilR, due to " planned discharges... fron uranium fuel cycle operations and radiation from these operations." Obviously, this allegation cannot have any factual basis if Intervenor has no knowledge of dose calcu-lations.
In the second round response to discovery, the Intervenor appears to withdraw its assertion in the supplemental response 3 that residents near LACBilR are receiving doses in excess of 25 mrem since in response 3-3(n) they admit that they have no data to support this assertion.
Also, it appears that the Intervenor does not understand the term " uranium c) fuel cycle" since the tern is used inappropriately.E The entire uraniun fuel cycle (including LACBilR) is clearly set out in Chapter 5 of the FES.
6f The uraniun fuel cycle refers to inpacts froa radioactive materials in mining activities, fuel fabrication facilities and waste disposal as well as emissions froa nuclear reactors.
There are no uranium nines or fuel fabrication facilities near LACBWR.
. In the supplemental response 3, the Intervenor alleged also that the Staff dose calculations did not contain estimates of doses to individuals in the worst recdptor area of the plant.
Upon inquiry in second round discovery, the Intervenor replied that it understands the tem " maximum individual" to nean one who is receiving the largest offsite radiation dose.
But the Intervenor also states that it does not believe that the Staff has found the worse receptor area of the plant.
This is a totally baseless statement, but as repeatedly asserted throughout both responses the Intervenor promises that its proposed witness can address this matter "more precisely" at the time of a hearing even though the Intervenor admits to a total lack of evidence to support the allegation.
To make a frivolous allegation and promise that a proposed witness will produce evidence which the Intervenor does not know anc' has not produced in discovery not only subverts the dis-covery process but also is insufficient to show a genuine issue exists as to a material fact. Another Intervenor response to a Staff question as to the location of the worst receptor area which the latervenor allege-to receive doses above 10 CFR Part 20, consists only of a comment on a typographical error in the interrogatory, and certainly does not constitute a showing that there exists a genuine issue as to a material fact.
Staff inquiry into the Intervenor's supplemental reponse 3 allegation of the inadequacy of a Staff calculation not extended to "several hal T-lives or a hundred years" met with the response 3-3(h) that "Intervenors believe that the effects of radiation released by LACBWR will continue to be felt for longer time periods than those used in NRC calculations." This is a vague generalization and does not raise an issue of material fact.
t The Staff question ained at understanding the Intervenor's allegation in the supplemental response that "[t]here is no attempt made to consider either quantitatively or generically the world-wide impacts" of LACBUR met with this response:
"tJndeniably, the operation of nuclear reactors increased the level of radiation on a nation-wide and world-wide basis." Since this proceeding is r.ot addressing the impact of all the nuclear reactors in the world but simply one, this assertion in the supplemental response is without meaning.
This view is supported by the Intervenor's second-round response 3-3(1) which admits that world-wide impacts are not possible to calculate in relation to LACBWR.
In sunnary of the results of discovery on the nany allegations in supple-mental response 3, the Intervenor repeatedly admits that it has no informa-tion on present emissions from LACBWR; that it has no basis to challenge the models used by the Staff in calculating doses; and that it has no infor-mation as to how the proposed witnesses could testify on doses from LACBWR different from those of the Staff.
The only conclusion Staff can reach is that neither the Intervenor nor the proposed witnesses possess informa-tion which could be submitted to support the contentions in this prorceding..
Intervenor's response 4 states that that the number of individuals affected by LACBWR emissions "may be impossible to estinate" because La Crosse, Wisconsin is both a " tourist and dairy area", but, that despite the impossibility involved, that larger numbers of people are affected (by LACBWR) than the
& l NRC "would care to admit." This is on its face such an internally incon-l sistent statement that it is clearly a frivolous allegation which the Intervenor cannot support.
The closing statesment in response 4 provides no facts but speculates that a proposed witness will be able to do what the Intervenor describes as " impossible".
The second round responses to questions 4-4(a)-(c) inquiring as to the meaning of the Intervenor allegation in the supplemental response that the LACBUR emissions affect numbers of people " impossible to estinate" but which the Intervenor nevertheless alleges to be greater than those calculated by the Staff, are totally unenlightening. Their response to every question directed at the circular reasoning only deepens the confusion. The Inter-venor asserts that a proposed witness would be able to fully address this issue, but when asked the data on which the witness will base possible testimony, the Intervenor responds that it d6es not know.
In supplemental response 5, as answer to inquiry about the distance believed by Intervenor to be affected by LACBWR emissions, the Intervenor again states that this question may be "iapossible to answer" because LACBUR is located in an " agricultural area along a major river," but once again, although describing the question as impossible to answer, the Intervenor states that the NRC dose calculations are " unacceptably small." The Inter-venor thus by its own admission has made a statenent without factual basis.
The Intervenor assertion that the "Heidelberg Report" is evidence
5 3
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concerning the area affected by LACBUR emissions is quite obviously insup-portable. An analysis of the area of Germany affected by emissions from a large German PUR cannot raise a fact issue about LACBUR emissions. The assertion that a proposed witness will " testify" on the "Heidelberg Report" is without significance for this proceeding for the same reasons, and for the reasons pointed out previously concerning the Heidelberg Report.
In answer to Staff second-round questions concerning the FES dose calcula-tions deemed " unacceptably small" encompassed in 5-5, the Intervenor again gives no information concerning any evidence to challenge the Staff evalua-tion but again promises that a proposed witness will be able to answer everything asked although the data which the witness will use is admittedly unknown to the Intervenor.
In sunnary, the Intervenor responses to interrogatories concerning Conten-tion 2A show beyond doubt that the Intervenor has no information, evidence, data, or knowledge to raise any issue of fact concerning off-gas emissions from LACBUR nor to dispute the Staff calculations stated in the FES and the affidavit of Dr. Branagan. The Staff again subnits that summary disposition should be granted for Contention 2A.
Contention 2B CREC contends that the excessive off-gas levels at LACBWR are inimical to the health and safety of plant employees, and fail to comply with the restrictions set forth in 10 CFR Part 20.
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, Staff interrogatory 6 asked what dose Intervenor alleged I.AC3HR employees receive from off-gas emissions, the basis for the dose, and the evidence that e:aployees actually received the dose alleged.
t Intervenor's response 6 states that " worker exposure calculations are insuffi-ciently precise" but in the following paragraph asks what 10 CFR 6 20 worker exposure limits are and references information concerning dosimeter inaccuracies. Since off-gas emissions are not measured by dosimeters, as previously explained by Dr. Nehemias ( Affidavit Concerning Contention 2B subnitted with Staff's sunmary disposition motion) the information about dosimeters is irrelevant to the contention, and fails to raise an issue of fact.
In second round discovery question 6-6, the Staff atteapted to ascertain the specific dose which the Intervenor alleges that workers at LACBWR receive from off-gas emissions.
For the third time, Intervenor has refused to respond to this question and has merely stated that employee monitors are defective. The only conclusion which can be reached in reading all the responses to questions 6.6(a)-(a) is that the Intervenor has absolutely no evidence to present to show that off-gas emissions from LACBWR result in excessive doses to workers.
The Staff submits that it has again clearly deaonstrated that the Intervenor has no factual basis to support Coatention 2B and that it should be sunnarily 1
i o
. disposed since no issue of naterial fact exists as dalonstrated previously by Staff affidavit.
Contention 8 CREC contends that LACBUR's radiological environnental monitoring program is inadequate in terns of a) the nethodology of the testing b) the size and distribution of the sample, and c) the frequency of the sampling, in light of the off-gas levels, the geography of the area to the east of the plant, and the fact that the area is primarily a dairy region.
In the supplemental response to Statf interrogatories 7, 8, and 9, the Intervenor does not answer the questions but refers to an article (reference
- 40) which asserts various defects of monitoring activities of the States of California and Wisconsin.
This is certainly no evidence of any defect in the LACBWR nonitoring prcgram.
Additionally, the Intervenor alleges for the first time in the supplemental response that the Applicant uses formalin (a preservative) in testing pro-cedures. No basis is provided for the allegation (made by the authors of the Supplemental Response), and since formalin is a preservative commonly used in the process of analyzing milk samples, this allegation of formalin use raises no issue.
No response was given to second-round interrogatories concerning this matter so that it appears to be an assertion which the Intervenor has abandoned.
. In the second round discovery concerning Contention 8, the response given is an additional allegation, not raised before, consisting of the following assertions:
1.
NRC has contracted with the State of Wisconsin to conduct an environmental radiological monitoring program.
2.
DPC is the sole source of the data.
3.
Intervenor has provided a reference which criticizes the adequacy of Ilisconsin's monitoring program.
The Intervenor then reaches a logical non-sequitur conclusion that there-fore, the DPC monitoring program is inadequate.
In response to Staff second round questions, Intervenor has made allegations about air mass channeling, air stagnation, and high air particulates in the cit l of La Crosse to show that the Applicant's monitoring program is inade-quate, but there is no correlation made to the documented DPC monitoring program for LACBUR whatsoever. Thus, the response provides no facts rele-vant to the contention.
Contention 8 should be summarily disposed since Intervenor has shown no factual basis to support the allegation, nor any evidence to contradict the affidavit of Dr. Branagan.
Contention 9 CREC contends that the exposure of the population to the combined and synergistic health effects of the airborne effluents released by LACBUR and the Genoa 3 coal plant is inimical to public health and safety.
l
. Once again, in its supplemental response 10, the Intervenor freely admits that it has no knowledge of facts to support this contention.
(Intervenor's original response 10 stated it thought no evidence existed about coal-nuclear synergism).
The only reference (41-43) made by Intervenor to any evidence to support this contention is, upon examination, no evidence at all.
The Intervenor references the very IAEA symposium discussed in Dr. Gotchy's affidavit attached to the Staff's motion for summary disposi-tion.
This reference contains the only study of coal-nuclear synergism ever done which was previously discussed by Dr. Gotchy. The " Clark flost" article referenced by the Intervenor consists of generalizations and speculations but no scientific evidence of effects of coal-nuclear synergism. And finally, the AEC document cited contains no information whatsoever about coal-nuclear synergism, since it is concerned solely with nuclear radiation.
In supplementary responses 10-10,11-11,13-13, and 14-14, the Intervenor has made absolutely clear that the only evidence that it could possibly present to support Contention 9 are the three references in the supplemental response, none of which support the Contention. With the second round discovery responses, the Intervenor provided a copy of an article by Clark flost, Jr.
It is unknown as to what purpose this paper was directed or what the qualifi-cations of Dr. [1ost are.
It is clear from reading Dr.11ost's article, that it is a draft (since there are many hand-written corrections and additions throughout the paper), and that it is merely a survey of scientific litera-ture in 1971 concerning effects of combinations of chemicals and radioactive materials which sometimes heal and sometimes harm.E The paper does not 8_/
Dr. liost points out that a combination of chemicals and radiation are routinely used in cancer treatment.
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. contain any evidence to show any greater harm from coal-nuclear synergism than from the separate effects of each emission.
This paper is ; imply a very generalized summary of scientific literature concerning the adverse effects of chemicals and radiation, which tentatively questions, witnout supporting evidence, the wisdom of constructing nuclear power plants near urban areas. Neither this paper nor the two previously discussed references are adequate to contradict the affidavit submitted by the Staff showing that Contention 9 has no factual basis which could be litigated.
Again, the Staff submits that Intervenor's responses to discovery show that no scientific evidence exists to support Contention 9 and that Dr. Gotchy's expert opinion shows that there is no factual issue to be litigated concerning this contention and that it should be dismissed.
Contention 19 CREC contends that the econanic cost-benefit balance does not favor issuance of a full-tem operating license due to LACBWR's small size, relative obsolescence and retrofitting requirements; its low operating effivency as evidenced by low megawatt hours of cumulative output, low unit capacity factar, and substantial downtime; the costs of spent fuel storage; the rising costs of fuel and maintenance; and the eventual costs of deconmissioning.
The pending Staff motion for summary disposition states that Contention 19 should be dismissed as a matter of law because the issue raised is a solely economic consideration of plant operation and is therefore, outside the Commission's jurisdiction as demonstrated by the Commission's case law addressing this subject.
(NRC Staff flotion for Summary Disposition, June 6, 1980, pp. 12-13).
. Even though the contention specifically states that "the economic cost-benefit balance" is the issue raised by the contention, and even though all CREC responses to interrogatories concerning Contention 19 (Intervenor Responses 16-22, April 25, 1980) indicated that only dollar costs were intended by the Intervenor, nevertheless, the Board questioned the interpre-tation of this contention as a solely economic one at the second prehearing conference. Tr. 1090-1125.
From the above transcript references, it is not entirely clear to the Staff whether the Board interprets Contention 19 to mean that unspecified environ-nental costs of operation outweigh the benefits of power produced, or that there will be g benefit from continued operation of LACBWR.
If the Board interpret: the contention to mean that g benefit will be realized from LACBWR power, the Staff submits that e~ h an allegation is on its face without factual basis since this Board has in a previous decision made a legal judgment based on evidence presented at hearing that the benefits of LACBWR operation to 1983 outweigh all environmental impacts of operation Dairyland Power Cooperative, (La Crosse Boiling Water Reactor), LBP-80-2,11 NRC44,104(1980).
Further, the Staff Affiant, Dr. Nash, demonstrates that operation of LACBWR for a full tena of twenty years will provide benefits to the public which outweigh even the economic costs of operation. Additionally, the FES for LACBWR demonstrates the benefit of LACBWR operation beyond 1983 until expiration of the proposed full tern license. Thus, the Staff has
~
e previously shown by Affidavit submitted with the pending summary disposition
~
motion that there is a significant benefit to the public in continuing operation 'of LACBilR. The Staff believes that an allegation that no benefit will be produced by LACBilR is wit' t rerit on its face in light of the fact that the plant has been producin p,we-for the DPC service area for over twelve years; the Board's Initi -
ucision which finds a need for LACBWR for the near tem; and the Staff Affidavit and FES.
As to the Board's " environmental" interpretation, the Staff would point out that the clear focus of the Staff's first-round interrogatories and CREC answers is on the economic (monetary) costs of retrofits, downtime, cumula-tive output, spent fuel storage, fuel, and naintenance, and the clear meaning of this contention was and is that the monetary costs of operation of the plant are such that the power produced is too monetarily expensive. The contention explicitly states that the " economic cost-benefit balance does not favor issuance of a full tern license...." for the economic reasons listed in the contention.
Nothing in the contention even suggests that the issue raised refers in any way to environmental costs, or to a denial that the plant does have a " benefit" of some electricity produced.
The word
" costs" is used three times in the contention and always in relation to an iten which involves expenditure of money, i.e.,
" costs of spent fuel storage"
" rising costs of fuel and maintenance"
" costs of deconnissioning".
n.
. The Staff submits that the Board's interpretation of this contention as reworded and reinterpre.ed hy the Board sua sponte, is unrelated to the Intervenor's intended issue, as demonstrated by the Intervenor's Supple-mental Response, and second-round responses.
The April 25, 1980 responses of Intervenor deaonstrate that it did not intend to indicate any environmental costs as shown by the following questions and answers.
Staff Question 16 To what "retrofitting requirenents" do you refer in Contention 19?
CREC Answer 16 At the time contention 19 was written two years ago intervenors were aware that several significant retrofits had been performed in the recent history of LACBWR.
Given LACBWR's design and oper-ational difficulties, the intervenors assumed the Systematic Evaluation Program would necessitate further retrofits.
Since that tim. DPC has been ordered to nake several retrofits.
The most significant retrofits thus ordered by the NRC include
.iquefaction corrections and THI-2 retrofits as ordered by t.UREG 0578.
Staff Question 18 Do you contend that LACBUR will continue the extended downtime of the past few years? If so, state the basis fur'this allegation.
CREC Answer 18 At the time that contention 19 was written LACBWR was suffering long down time and poor operating capacity, due mainly to fuel failure.
In the past two years LACBUR's capacity factor has remained very low.
There have been several indicators that changes required hy NUREG 0578 Category B will require long down time to implement.
, Staff Question 19 Explain the meaning of the phrase " low negawatt hours of cumulative output" contained in Contention 19.
Does this refer to the limiting conditions of operation inposed due to fuel failure problems?
CREC Answer 19 Low megawatt hours of cumulative output refers to the low output (in KW/ hrs) produced by LACBbR as compared to its potential.
Staff Question 200 Specify the costs of spent fuel storage to which you refer and explain how these costs affect the cost / benefit of continued operation.
CREC Answer 20 CREC contends that spent fuel storage costs would show up as benefits in the C/B ratio once any investments are made.
Staff Question 21 In your opinion, how do rising fuel and naintenance costs affect the cost-benefit balance of LACBWR operation in relation to replace-ment power (which would be affected by economic conditions)?
f CREC Answer 21 Contrary to NRC staff assumptions, as stated in the Final FES, CREC believes that LACBWR fuel and maintenance costs will rise
_fa_ ster than non-nuclear replacement power, especially if that replacement were conservation.
Staff Question 22 Explain what type of deconnissioning you mean and why you believe decommissioning costs indicate a negative cost / benefit balance for LACBWR in relation to replacement power.
CREC Answer 22 i
Any decommissioning has a negative effect on the cost benefit ratio, and no specificity is required.
However, it shoula be l
noted that decommissioning is a cost that is essentially non productive and thus taxes consumers without any benefit.
Recent plans made by DPC to phase out LACBWR by 1990 only makes it more likely that future consumers will find reflected in their rates costs associated with a non-productive facility.
l
. The retrofits deemed "significant" in response 16 are liquefaction correction (involving no worker exposures) and NUREG-0578 (Till) requirements, but the
" cost" indicated in response 18 relevant to NUREG-0578 is one of "long down tine" so as to affect the plant's " operating capacity", reflected also as " low output in Ml hours" (response 19). Spent fuel storage " costs" are those related to " investments" (response 20).
Fuel and maintenance " costs" are described as those which " rise" faster than nonnuclear replacement power (response 21).
Finally, the decommissioning " cost" is that which is "non-productive"; " taxes consuners" in their " rate costs".
The Staff submits that the responses above show beyond doubt that the Inter-venor had no intention of implying any environmental costs in the allegations set out in Contention 19 prior to the sucond prehearing conference.
After the prehearir.g conference, the Intervenor alleged that " cost" in Contention 19 now ri.eans " human" and " worker exposures"--terms used in the Supplemental Respon',e only in connection with retrofits (supplemental response 16) and decommissioning (supplemental response 22).
Yet in attempting to add this new dimension to the contention, the " costs" alleged are not supported by factual basis.
Intervenor claims that there will be a " cost" to NUREC-0578 requirements which have been completed, two of which are only modifications to written
. precedures. The allegedly " costly" procedures, 2.1.4(1)U and 2.1.5. A, are E as been completed.
In addition, Inter-written procedures, and 2.1.3.b h
venor again refers to dewatering the soil around the plant as a " costly" retrofit, when it is clear that dewatering would not involve exposure to radiation. Also, the fire pro?.ection requirements are alleged as a " cost."E One referenced retrofit is:
ilVREG-0578 0.1,8.a entitled:
Improved Post Accident Sampling Capability - described below as follows:
Review and upgrade the capability to obtain samples frem the reactor coolant systen and containment atmosphere under high radioactivity conditions.
Provide the capability for chemical and spectrua analysis of high 'evel samples on site.12f As is self-evident from the above description of this particular "Ti1I" requirement, this merely requires improved ' monitoring capabilities in the plant and does not indicate any significant worker exposures.
The primary emphasis in the supplemental response concerning decommissioning is economic costs, with no explanation as to how the " cost" of.vorker exposure is to be considered adverse to a full tern license, as illustrated by the following discussion and illustraticr..
9]
Incorrectly cited as 2.1.4.b which is non-existent.
10] There is no subdivision (1).
IJ1/ All fire protection modifications have since been completed.
12/ This item has been completed since the responses were written.
1
. Supplemental response 18 refers only to lengthy maintenance, causing
" lengthy downtime", due to the plant's " age", " poor parts availability" and more retrofits anticipated by the Intervenor due to statements in the THI-2 Lessons Learned Task Force Report.
The Intervenor readily admits in supplemental response 20 that only the dollar cost of the spent fuel pool modification litigated previously was of concern to it and that the issue is now " moot".
In supplemental response 21 the sole concern expressed is the dollar cost of uranium, the " price" of which is discussed in relation to its " scarcity" as well as the monetary cost of solar energy and conservation which are alleged to " produce three times more energy than nuclear per dollar spent" (emphasis added).
In addition the Intervenor urges alternatives of conservation or solar energy because they are not "as affected by economic conditions," thus asserting that solar energy and conservation are financially less expensive than nuclear energy due to the rising dollar price of uranfun. The Intervenor concludes the response by stating that fuel and maintenance costs should be listed on a yearly basis to support the Staff's fuel costs in Table 8-1 of the FES (which table deals exclusively with monetary, dollar costs).
In supplemental response 22, the " costs" of decommissioning are listed in a) as " purely economic"; in b) economic and radiation; c) employee exposures and d) as economic ("2/3 of the core will sst"). The monetary cost of
. 'm
, decommissioning is clearly the concern of the Intervenor in the statement that:
Assuning that LACBilR would operate in the black for the remainder of its lifetime... and funds were paid into a deconnissioning escrow fund, then the longer LACBilR operated tLe less the negative economic impacts would be.
(Emphasis added)
Another aspect of response 22 to be noted is the Intervonor statement that it "had no particular method of decommissioning in mind with reference to Contention 19" and that it "believe(s) that there is a lack of relevant information and experience with which to predict costs of any method of deccmaissioning".
This is a clear admission by the Intervenor that they can provide no factual basis to support any allegation, economic or environ-mental, concerning " costs of decommissioning" referenced in this part of the contention.
Nevertheless, the Intervenor goes on to state what they tem as
" facts" which "aust be taken into account" that may have a " negative" effect on the cost / benefit balance.
This is entirely contradictory as they assert
[
" facts" after admitting they have no knowledge of facts.
The " facts" are themselves contradictory since they consist only of speculations on the consequences of certain actions, i.e., " dismantlement within 7 years of shutdown may be preferable from an economic standpoint but conversely,
" storage or entombment may become a more preferable option as decommis-sioning costs rise, and frcra a radiation exposure standpoint".
Yet in juxtaposition to the previous " facts", the Intervenor asserts "the longer LACBWR operates the greater the exposures to employees involved in any phase l
l o
a or method of decommissioning." TF final " fact" asserted is that "2/3 of the core will be lost no matter
(This is another reference to a Board question answered by the Staff response of August 29, 1980).
The Intervenor's speculations as to positive and negative factors attached to decommissioning do nothing to contradict the Staff's affidavits and the Final Environmental Statement discussion of decommissioning nor do they show how decommissioning is an " environmental" cost for which an environmentally preferable alternative exists, or which must be considered as an environ-mental impact outweighing the benefit of power production.
Through interrogatory 16-16, the Staff made a very concerted effort to attempt to learn precisely what words, what meanings, or what implications, in contention 19 related to environmental costs rather than econanic costs.
The Staff was unsuccessful in second-round discovery in eliciting an expla-l nation from the Intervenor as to how the term " economic cost" was actually intended to mean " environmental cost".
Specifically, in response 16-16(a),
the Intervenor explains that the term " human terms" means "any effects retrofitting might have with respect to the health and safety of the public and DPC employees". This response does not give the Staff any infomation as to the specific allegation made by the words " human terms".
To allege g effects retrofitting might have, is a definition too vague to address with specifk evidence, and is obviously evasive.
When asked to clarify the l
I
. tem "econonic cost" and explain how it relates to the items of " cost" in contention 19, other than in a financial manner, the Intervenor explains
[16-16(b)] that economic cost is indeed a monetary cost, but that tems like inflation, over-supply and interest rates are economic and have effects on human health and happiness which "cannot be fully expressed in numbers ano percentages".
In addition, the Intervenor admits that in the context of LACBilR, the terms used (in Contention 19) are " clearly economic" but that the implication of these economic terms is that a plant with a low capacity factor means "a faulty plant with a history of high employee exposures".
(see Response 16-16(b) Para. 2).
The Staff believes the assertion of such an implication is patently unrea-sonable, as is the attempt by the Intervenor to define all economic terms 1.!
Contention 19 to mean " human health anu happiness," particularly when, by the Intervenor's own admission, such conr.otations "cannot be fully expressed in numbers and percentages."
The Intervenor states also, in Response 16-16(b) Para. 2, that the small size of LACBWR referenced in this contention coupled with a low capacity factor "would deprive those that have now risked and endured as _ investments, the full benefit of that investment".
Surely, this is a clear admission that the word " economic" in Contention 19 means economic and has no relation to the word " environmental".
. Ilhen pressed to explain what specific over-exposures the Intervenor alleged in its supplemental response to be connected with retrofitting at LACBilR, the Intervenor admits it has absolutely no information to produce on this point.
In addition, the Intervenor admits in 16-16(d) that it does nct intend to separate " costs" into any specific categories.
Rather, the Inter-venor states, " environmental and e;onomic costs are interrelated and affect each other".
Again, in response to the Staff question 16-16(e)(1) in second-round discovery asking what specific envircnmental cost, if any, the Inter-venor alleges in contention 19, the Intervenor states that it cannot answer this question.
Further, in response to an interrogatory asking for the particular basis for alleging environmental costs, the Intervenor states that it " assumes" that many retrofits will involve environmental costs and also:
Other effects which CREC considers direct environmental costs would be the loss of the capital expenditures on retrofits which could be spent more wisely for end-use decentralized energy sources, such as solar, conservation, wind, etc.
Inadequate capital for these alternatives caused by millions invested in l
LACfWR clearly affects our quality of life and perhaps social stability itself in the future.
Response 16-16(e)(fi) (Emphasis added).
The Intervenor apparently believes that money spent on nuclear power plants has an environmental impact because the money, in the Intervenor's opinion, should be used for solar and wind energy sources as well as conservation.
l The Intervenor attempts to argue that the expenditure of money is somehow in 1
question in this proceeding. This is, of course, neither true por pertinent to assessment of the environmental impact of the proposal before the agency.
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. In second-round questions 16-16(g).-(i), the Staff attempted to learn what specific environmental costs were alleged by the Intervenor relevant to possible retrofits required at LACBilR.
The Intervenor responses to the questions cited above indicate that the Intervenor has no knowledge of either environnental or economic costs related to retrofits, but has merely again thrown out a baseless allegation.
The substance of the Intervenor's response to the Staff's questions asking for specificity in allegations of environmental and/or economic costs cf retrofits consists only of very vague generalized allegations that "all -etrofits are costly".
This is, of course, not sufficient to raise an issue.
The Intervenor responses to Staff question 18-18 shed no light at all on the allegations in the supplemental response by Intervenor that there is " poor parts availability" for LACBilR.
In question 20-20, the Intervenor has refused to answer the question aimed at ascertaining whether or not the Intervenor referred to " spent fuel storage costs" in Contention 19 which were incurred by the Applicant in the recent l
spent fual pool modification.
Rather than answer the question, the Inter-venor attempts to obtain some sort of guarantee from the Staff about future storage of spent fuel.
In question 21-21(a)-(g), the Staff attempted to clarify the meaning of the Contention 19 phrase pertinent to the " cost" of uranium.
' he Intervenor's
i
. responses to these questions give no indication that any neaning other than economic is intended.
In second round discovery question 22-22, the Staff attempted to obtain from the Intervenor an explanation as to why, in the Intervenor's original response to discovery questions concerning decommissioning costs, it replied only in terms of dollar costs and why in the supplemental response, the Intervenor for the first time nade allegations concerning environnental factors in I
decommissioning costs.
The Intervenor's response was:
CREC's first response was adnittedly inadequate.
Being novices, d
we assumed everyone knew the en71ronmental costs.
The response to Staff question 22-22(a)(fi) asking about the specific doses to workers alleged in the supplemental response related to decommissioning was this:
CREC has no knowledge of what decommissioning method will be used on LACBWR, and has no dose estimates as a result of this uncertainty.
As can be readily seen from the above responses, the Intervenor did not in the beginning of this proceeding nor does it at the present time have any intent or capacity to present decommissioning as an environnental cost. The i
..v
2 f
. remainder of the responses to questions posed in 22-22 support this view since phrases such as "the facts listed a-d were quite literally conclusions reached by George flygaard as a result of the reading of numerous articles that he was not prepared to reference"; "CREC has no intention hy a-d to convey anything other than the fact that a nuclear plant's lifetine ends in decommissioning..."; CREC proposes nothing other than the fact that nuclear plants are a bad way of boiling water"; and "such a fact should be intui-tively obvious to even the most casual observer."
In sun, the Intervenor makes several clear admissions in responses 16-16 through 22-22 that Contention 19 refers solely to economic costs, and the attempts made to contrive a different definition do not withstand close analysis.
The meager explanations are consistently contradicted hy state-ments alluding to the financial costs of each item listed in the contention, and response 16-16(e)(1) is an affirmative admission that Contention 19 does not refer to environmental issues.
In conclusion, the Staff believes the foregoing discussion shows beyond doubt that Contention 19 was intended by the Intervenor to be only an eco-nomic issue of plant operation at the time of its submission and admission; that the only environmental issue which the Intervenor has sJbsequently raised is that of worker exposures during retrofits; that the retrofits listed hy Intervenor are shown by the description of the relevant activities to involve no significant worker exposures; that evcept for " retrofits" the l
l L
^
. Intervenor Supplemental Response shows that allegations made in Conten-tion 19 are solely and purely economic and that the Intervenor has no basis in fact to support the allegation that' retrofits are environmentally " costly".
Therefore, because this contention has been shown by the Intervenor's admis-sions in discovery to refer only to the economics of plant operation except for a baseless allegation about retrofits, and because the worker exposures from the retrofits described by the Intervenor do not raise a fact issue of an environmental cost beyond normal maintenance exposures, that this Board should dismiss Contention 19 as a natter of law, as outside the Coanission's jurisdiction insofar as economics of operation are alleged, and without basis in fact as to allegations of worker exposures during undefined and speculative retrofits.
The Staff resubmits its motion for summary disposi-tion of Contention 19 on the basis of law set forth in the pending notion and because no issue of naterial fact exists for adjudication as clearly demonstrated by this anendaent to the nction.
Contention 22 CREC contends that DPC has not sufficiently promoted energy con-servation programs to decrease electrical demand, such as flat rate structure, higher peak usage' rates, and elimination of electrical usage promotion, which would eliminate the need for LACBWR, as the least cost-effective unit in the DPC system.
In the supplemental response, the Intervenor made many references to altern-ative energy sources.
In second round discovery, the Staff asked in question 23-23 in what way the Inte venor believed that contention 22 raised an issue of alternative energy sources since the only words used in this contention
. refer to energy ccnservation. The response given by the Intervenor is that alternative methods of electrical generation do in fact " reduce electrical demand" in the DPC system.
This is an insupportable assertion since alterna-tive energy sources do not decrease demand, but rather, supply demand in another way than the one in question. The Intervenor explains further, that the allegations and references provided during discovery, which attempt to show decrease in electrical demand on the DPC system, were aimed at showing that "less conservation" would be necessary to eliminate the need for the La Crosse plant. But then the Intervenor states that for a response to the original interrogato:j asking how conservation could be implemented'suffi-ciently to eliminate need for LACBWR, the Staff should refer to the original answer.
Going back to the Intervenor's original response ( April 24,1980) the reader will find no response whatsoever to question 23 from the Staff.
The Staff asked in first round interrogatories and again in second round discovery for a response to the Staff's question as to what evidence Inter-venor possessed to show that energy conservation could eliminate the need for the La Crosse plant. To date, in spite of three separate responses to discovery by the Intervenor, no response has been provided to this question.
The only possible conclusion which could be reached from this continued refusal to answer the question is that the Intervenor has no evidence to present showing that energy conservation could eliminate the need for the La Crosse plant, and cannot show facts to contradict the Staff's affidavit.
Additionally, the Intervenor attempts to redefine the neaning of the worc
" conservation" in response to a Staff question.
According to t. e Intervenor,
. the word conservation should be understood to mean "any activity which avoids or reduces the consunption of non-renewable energy sources".
- This, of course'is not the coanonly understood neaning of the word " conservation".
The meaning advocated by the Intervenor would be synonymous with use of alternate energy sources, since their notion of conservation is limited to one type of energy source, rather than all sources.
In second-round discovery question 23-23, the Staff inquired about saae of the documentary references provided by the Intervenor to show lower growth in the DPC sealice area than that forecast by Staff in the supplemental response.
The Intervenor admits that reference 55 (a report to the Wisconsin PSC addressing future energy needs) has not been adopted by that body. Al so in response to Interrogatory 22-23(d) the Intervenor asserts that Reference 56 attached to the Supplemental Response shows that agricultural growth will be only about 0.1% per year to 1935 but Intervenor fails to note that Mr. Krohn's testinony addressed the average growth for all Wisconsin whereas the forecast referenced in Intervenor's Reference 55 shows that agricultural growth in
^
western Wisconsin (the location of LACBUR) is forecast as 1.6% per annum.
Thus, Intervenor has misconstrued its own evidence.
In response to a question about a Wisconsin "weatherization" survey (reference
- 61) the Intervenor attempts to assert that this simple documentation of weatheri7a tinn devices used in Wisconsin sonehow shows the_t DPC has no l
l serious commitment to home weatherization programs and that somehow consumers have been " taught" by utilities that e-'rgy conservation should be avoided.
l
a 3 To assert that a simple numerical counting could imply such activities or lack of activities by any utility is entirely unsupportable.
In response to Staff question 22-22(h) and (i) as to why the Intervenor continually refers to activities of DPC's member co-ops, which are not mentioned in contention 22, the Intervenor asserts that member co-ops were
" intended" by Intervenor to be included in the reference to DPC in this contention.
The Intervenor also asserts that DPC has a legal right to control the rate structure of the member co-ops.
The Intervenor presents no evidence to support this legal theory, and therefore it can only be understood to be another allegation of the signatories of the response.
In any event, the rate structure of member co-ops is not within the purview of this proceeding nor under the legal authority of the Nuclear Regulatory Conaission.
Staff questions 23-23(j) aimed at ascertaining the precise allegation by the Intervenor that DPC does not use a flat rate structure, did not elicit any clarification on the natter. The Intervenor did not respond to a question asking the amount of the DPC service charga to customers.
Yet the Intervenor characterizes it as " inordinately and unn> :assarily high".
Since the Staff response to Board questions at the second prehearing conference has identified the typical cooperative service charge to be $7.80 per nonth, it is difficult to understand why the Intervenor believes this to be inordinately high.
Nor does the Intervenor explain why it believes that this charge precludes the
. flat rate structure.
It must be assumed that the Intervenor has made another baseless allegation.
Service charges exist in all utility systems, and the tem " flat' rate" refers to the anount charged per Kw hour, as explained in the Staff's affidavit previously submitted, as well as the response to Board questions.
Second-round question 26-26 asks why the Intervenor alleges that DPC is promoting electric home heating.
The Intervenor responds at great length to allege that since DPC is expanding its capacity that therefore, the utility is promoting the use of electricity by making it more available.
Added to this postulate is the assertion that the DPC plan to promote dual heating sources, (one of which would be electricity) is an attempt by the utility to force people to use electricity.
Neither of these allegations is reasonable.
Reference to the General fianager's P.eport (provided by the Intervenor with its supplemental response) states on page 5 the following:
He will encourage installation of residential heating systems using the dual fuel or heat storage units.
Dual fuel heat systems use electricity most of the time, but have another fuel back-up, either coal, gas, oil, or wood.
Electric heat storage systens will store enough heat during the low energy usage night period to supply all of the heat requirements in the house during the day. Water heaters, irrigation pumps,
and crop drying are examples of other loads that can, in must cases, be controlled during the peak load period.
In answer to a question challenging the Intervenor's characterization of two DPC advertisements, which the Intervenor submitted in its supplemental response, the Intervenor states that the reason these two ads s'aula Le
. described as promoting electricity is because the growth rate cited by DPC is incorrcct and that DPC is wrong when they say that their conservation efforts ca'nnot meet increased demand. Second-round response 26-26(g). Now this is a significant change in position by the Intervenor who originally alleged that DPC was actively promoting use of electricity by advertisement.
Now the Intervenor asserts that DPC 'is " promoting" use of electricity by being incorrect in its estinates of growth rate and effectiveness of conservation activities.
Additional Staff questions aimed at learning why the Intervenor believes that DPC is procoting the use of electricity by " criticizing" conserva-tionists and why the Intervenor continues to assert alternative energy sources in response to questions about energy conservation produced only vague and incomprehensible answers.
In question 26-26(j), the Staff points out ten itens of evidence produced by the Intervenor in its supplemental response which show that energy conservation is encouraged by DPC, and askt wrether, since the Intervenor appears to have disproved its own contention, the Intervenor wishes to withdraw contention 22.
The Intervenor's only response is "no."
It should be noted that Staff questions 26-26(c)-(e) were given no answer at all by the Intervenor, so that the allegations in the supplemental response that DPC is an " intruder" into a " marketplace" (of undetermined character) remain obscure.
.. Tha Staff submits that the Intervenor's statenents in the Supplemental Response are an admission that no facts exist to support this contention.
The Board's attention.is directed to the following statements and subaissions filed by the Intervenor which are a part of the record of this proceeding ard which clearly show that the Intervenor cannot provide any evidence to support the contention or raise an issue of material fact.
(A) DPC pursues energy conservation by:
load management (Response, p. 11) home energy audits (Response, p.11) s.
weatherization (Response, p.12) water heater insulators (Response, p.12) flat rate structure (Response, p.12) tine-of-use rates (Response, p.12)
(B) DPC encourages conservation measures by inserting relevant infome. tion in nonthly bills to customers (Response, p.12).
(C) Rural cooperatives are unable to adequately pursue energy conservation without Congressional funding (Ref. 66 and 67:
Testinony before Congressional Subconnittees).
(D) DPC advertises to influence customers to conserve energy.
(A Pr: advertisenent was submitted with the Supplemental Response which encourages energy conservation by stating "Use electricity wisely... the energy you save may be your own" r.nd refers to home energy audits and load management programs.)
(E) DPC support. systens of off-peak heating (which could reduce need for p>wer).
(Response, p. 13)
The Intervenor has not presented any infomation to show that any issue of material fact exists to litigate concerning this contention, nor to
.. contradict the Staff's previously filed affidavit concerning this contention.
Instead, the Intervenor has provided substantive evidence by the statenents in the supplemental response and documents subaitted which disprove Conten-tion 22.
Therefore, the Staff noves again for summary disposition of this contention as a matter of law, since no issue of material fact exists for litigation.
Conclusion The Intervenor has been provided repeated opportunities to demonstrate that it can substantiate the allegations made in the contentions.
Yet the Inter-venor has to a great extent provided responses, references, and documents wSich either contradict the contentions, admit that they have no evidence to present, or show by contradictory and inconsistent statements that asser-tions made are frivolous.
Even a cursory reading of the Intervenor's responses over the many months that discovery has been permitted, shows that the Intervenor continually makes groundless or irrelevant allegations to 3
show that issues of fact exist in the proceeding, but when pressed for a clarification or explanation, the Intervenor either refuses to respond or shows that the allegation is without basis by revising one allegation to create another.
The plethora of " supporting evidence" submitted by the Intervenor with its supplemental response, upon examination, turns out to be simply a mass of paper and no evidence at all to show an issue of fact or evidence to support the contentions.
The Staff believes that the Intervenor has denonstrated that further pro-ccedings in this licensing natter would be futile, since in responses to discovery tne Intervenor has admitted in writing and under oath that it has no data, no facts, and no evidence to ute in litigating any contention.
The Staff subaits that by discussion, argunent, and affidavits of experts provided in the notion for sumnary disposition filed June 6,1980 and this Amendaent to that notion, that no issues of material fact exist to support or require litigation of any contention admitted to this proceeding and that the Board should dismiss Contentions 2A, 2B, 8, 9, 19, and 22 as a natter of law.
Respectfully submitted, Colleen P. I!oodhead Counsel for NRC Staff Dated at Bethesda, liaryland this 9th day of September, 1981
___o