ML20039B748
| ML20039B748 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 12/17/1981 |
| From: | Copeland J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8112230517 | |
| Download: ML20039B748 (15) | |
Text
. .
g)I] ,
00CMETED fnt.nc United States of America Nuclear Regulatory Commission 'dj gg 77 NI O2 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of 'S S
HOUSTON LIGHTING & 5 Docket No. -
6 5 %s POWER COMPANY 5 ,. ;
Q (Allens Creek Nuclear s,gc6 5 ..
Generating Station, Unit 1) 5 6, gC,% p# S S
APPLICANT'S RESPONSE TO TEXPI j\ c,W:
S MOTIONS 4N * "qC FOR (1) ADDITIONAL TESTIMONY ( ^ M THER D DEVELOPMENT OF RECORD (3) ADMISSION OF ' @CONTElfSL .
W On December 7, 1981, Intervenor TEXPIRG filed a motion in which it requested the Board to hear additional evidence on TEXPIRG Contention 1 (STP 3 v AC 1), TEXPIRG Additional Contention 31 (Technical Qualifications), and the need for power issue. TEXPIRG further requested the Board to admit the need for power issue as a TEXPIRG contention:if it had not already dcne so. Attached to the TEXPIRG motions were two newspaper articles and one newspaper column which TEXPIRG alleges provide some basis for its motion. Ap-t plicant submits that this motion is nothing more than a superficial attempt by TEXPIRG to delay these proceedings.
The motions are totally devoid of merit and should be rejected i
by the Board.
D5o3 l (.
8112230517 8112T7 PDR ADOCK 05000466 ;PDR G
I Hearings as to the matters raised by TEXPIRG were completed several months ago. Consequently, although TEXPIRG's motions for " additional evidence" are not so designated, they must be deemed as motions to reopen the record. Both Applicant and Staff, in their replies to Mr. Doherty's recent motions to reopen the record, discussed at great length the burden that must be satisfied by a party requesting that the record be reopened. Applicant will not duplicate ,
those discussions here. Suffice it to say that TEXPIRG must demonstrate that the evidence it wishes to adduce would be of major environmental or safety significance, Vermont Yan' tee Nuclear Power Corp. (Vermont Yankee Nuclear Power Plant),
ALAB-138, 6 AEC 520 (1973), and that the Board would reach a 1 different result as a consequence of its introduction.
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
i l ALAB-359, 4 NRC 619 (1976); Georgia Power Co. (Alvin W.
Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 NRC 404 (1975); Northern Indiana Public Service Co. (Bailly Generating i
! Station, Nuclear - 1), ALAB-227, 8 AEC 416 (1974). TEXPIRG l has made no such showing.
l l II l
TEXPIRG first alleges that the record should be reopened to hear additional evidence regarding TEXPIRG Contention 1: STP 3 v. AC 1. It is not at all clear what 1.
l . _ . _ __
the relationship might be between the evidence TEXPIRG wishes te adduce concerning possible construction delays at the South Texas Project (STP) and TEXPIRG Contention 1. It appears that TEXPIRG is arguing that if the completion of STP is delayed, the socioeconomic impacts associated with the construction of a third unit at STP would be less than the socioeconomic impacts associated with the construction of ACNGF . In fact,-socioeconomic impacts are not part of contention and TEXPIRG'S requst should be rejected on this basis alone. In any event, TEXPIRG provides no grounds for reopening the record on its contention.
First, although TEXPIRG alleges that Applicant has admitted that construction of STP will be delayed as a result of the change in design engineers on such project, there is no evidence to support such an assertion. In fact, the only evidence in the record on this point is the testimony by Mr. Oprea denying the truthfulness of the representation by Mr. Scott (at Tr. 17601) that.HL&P had announced a two-year delay of STP. (TR. 18361). In this same vien, TEXPIRG alleges that the workers who are now working at STP could simply be shifted to work on a third unit at the STP site.
If it is assumed, however, that construction is delayed at STP, and if it is further assumed that the Allens Creek unit were shifted to the STP site, then the only logical ~ assumption
is that work would have to proceed simultaneously on all three units. This simultaneous construction would obviously increase the socioeconomic impacts, and can only worsen TEXPIRG'S position on this issue.
In this regard, the NRC Staff has already examined a scenerio that assumes construction of three units at STP and found that such action would render the STP site "no more than equivalent to the Allens Creek site" in terms of socioeconomic impacts and that such a result would not alter ,
the conclusion that Allens Creek site is environmentally preferable to the STP site. (Staff Ex. 13, Staff Supplement No. 2 to the Final Environmental Report (FSFES), at SS 2.4.3.5, 2.5). Consequently the very circumstances TEXPIRG wishes to r.ow raise have already been addressed by the Staff in the FSFES. The time to have pursued that issue was when the Staff's witnesses testified.
It is clear that TEXPIRG has not made the requi-l site showing to justify the reopening of the record for further evidence on TEXPIRd Contention 1. Accordingly, i
, TEXPIRG's motion should be denied.
III TEXPIRG also alleges that the record should be reopened to discuss Applicant's "need for power" (TEXPIRG Motion pp. 2-3). Such evidence is necessary, TEXPIRG argues, since (1) the cities of Austin and San Antonio may wish to L- - - _ . _ _ _ _
sell their shares in STP, (2) certain cogeneration plants have been proposed, and (3) a recent FERC order establishes certain interstate interconnections which would enable Applicant to purchase power from the Tennessee Valley Au-thority or Gulf States Utilities.
As an initial matter, it should be pointed out that, although Applicant has provided extensive evidence regarding its demand forecast in order to satisfy the requirements of the National Environmental Policy Act, ,
neither TEXPIRG nor any other party has submitted a conten-tion directed toward the Applicant's need for power. TEXPIRG is, or should be, well aware of this fact since in orders dated September 26 and November 7, 1979, the Board ruled, in response to a discovery motion by TEXPIRG, that TEXPIRG Con-tention 7 could not be " enlarged to place in issue the need for power in Applicant's system."l/
It is also clear that the other contentions cited by TEXPIRG at page 3 of its Motion do not raise such an issue. Each of those contentions deals not with the existence of a need by Applicant for power, but rather with the use of means other than Allens Creek to satisfy that need.
1/ Thus, the Board has previously considered and rejected the relief requested by TEXPIRG in paragraph 3 of its prayer (TEXPIRG motion, p. 5).
It is also important to keep in mind that the NRC has long held that the need for a facility can be demon-strated either by a showing that additional generating capacity is necessary to produce needed power or by a showing that the nuclear plant is needed as a substitute for plants that burn fossil fuels which are in short supply. New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 97-98 (1st Cir 1978); Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1) ALAB-642, 7 NRC 320, 327 ,
(1978); Niagra Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2) ALAB-254, 1 NRC 347, 353-54 (1975). Appli-cant and Staff have presented extensive evidence which establishes the need for Allens Creek on both of these grounds. (Testimony of J. D. Guy and John M. Edwards, following Tr. 16903; Testimony of Lewis Perl, following Tr.
5964, p. 13; Testimony of J. W. Dick following Tr. 6227, Table 8). Since the evidence offered by TEXPIRG does not i
l' affect this alternate showing, it can have no significance to the ultimate conclusion that Allens Creek is needed to i replace existing oil and gas-fired generating plants.
TEXPIRG's motion does not establish any basis for concluding that the Board's ultimate decision would be altered by the information TEXPIRG wishes to develop. In its reply to Mr. Doherty's November 6, 1981 Motion, Appli-cant addressed the weight which should be given to speculation
concerning the possibility that HL&P will purchase an addi-tional interest in the South Texas Project from the cities of San Antonio or Austin. Those same arguments apply here and we will not burden the Board with a replay of those arguments. We note, however, that the very article cited by TEXPIRG indicates that the Applicant has no plans to purchase any additional interest in STP.
TEXPIRG also alleges that residential conservation will reduce the demand for future power plants (TEXPIP.G ,
Motion p. 3). TEXPIRG's Motion, however, provides no reason to believe that the load growth studies done by-HL&P do not take such conservation efforts into effect. In his testimony, Dr. Anderson reduced Applicant's demand forecast for all reasonable reductions available as a result of conservation measures. (Anderson at 3-4, following Tr. 5536). Dr. Perl went even beyond this reasonable range and assumed that demand growth would be reduced to zero. (Perl at 13-14, following
- Tr. 5532). Even this did not obviate the need for ACNGS.
l Mr. Edwards testified that the Applicant's most recent +
1 forecasts reflect lessened demand attributable, inter alia, l to conservation efforts. (Testimony of Guy and Edwards, p.
3). TEXPIRG offers no explanation as to why it did not seek l
l to explore this matter in tae record through its cross t
examination of Applicant's witnesses especially in view of the fact that the study TEXPIRG now finds so material was l
l l !
disclosed by the Applicant on August 13, 1981 (TEXPIRG Motion, p. 3) and Applicant's witnesses updating the demand for forecast-testified over a month later (September 16, 1981).
Similarly, TEXPIRG provides no basis for its allegations that a proposed industrial congeneration plant will generate 70 MW of electricty (TEXPIRG Motion p. 3) and its unclear whether TEXPIRG is contending that such a plant would represent a possible source of power for Applicant or ,
only a reduction in the demand on Applicant's system. In any event, TEXPIRG has provided the Board with absclutely no information concerning the proposed in-service date of such plants, the reduction in demand on Applicant's system that might be attributable to such plants, the amount of electricity, if any, in excess of the plants' needs that might be available for sale to Applicant, how such amounts could significantly affect Applicant's supply or demand forecasts or, lastly, l
how the full 70 MW, if available, could be deemed a replace-ment for the 1200 MW of generating capacity at Allens Creek.
Most importantly, TEXPIRG has not shown how the proposed l
l- evidence would change the record. Dr. Anderson testified that his forecast assumed a growth in self-generation (Anderson, at 14-15, following Tr. 5536) and Mr. Dick testified he assumed the addition of 1625 MW of self-generation. (Dick at 46, following Tr. 6227). TEXPIRG'S motion is obviously devoid of substance in light of the record.
Finally, TEXPIRG's "new evidence" as to the Appli-cant's interstate connections has already been thoroughly aired on the record. Applicant's Vice President, Mr. Simmons, testified that Applicant had agreed to install such inter-connections pursuant to a settlement of certain litigation.
(Testimony of D. E. Simmons, p. 11-13, following Tr. 5131).
The only thing that has happened since Mr. Simmon's testimony is that the Federal Energy Regulatory Commission, which'is only one of the courts and agencies before which the settle- ,
ment is pending, has now approved the settlement. Central Power and Light Co. et al., FERC Dkt. Nos. EL79-8, et al.
(October 28, 1981).
Applicant has previously discussed its need to purchase substantial amounts of power in the mid to late 1980's. The testimony already shows that regardless of how much power may be available for purchase from sources inside or outside of Texas, HL&P (1) cannot forego construction of Allens Creek on the assumption that there will be sufficient excess generating capacity outside Texas over a forty year period, and (2) HL&P can only import 200 MW over the DC tie.
(Simmons pp. 7 and 13). Moreover, since the Applicant has no contracts to purchase any power from interstate sources, the testimony of Mr. Simmons on this point remains unchanged.
In fact, even if such a contract existed, it would be meaning-less until action is taken by all of the agencies and courts
that must approve the settlement and until the interconnections are actually constructed. No purpose would be served by reopening the record in order to receive idle speculation as to where Applicant might purchase such power or whether such power might be transmitted across such interconnections.
IV TEXPIRG also asserts that the record should be reopened to receive additional testimony on TEXPIRG Ad-ditional Contention 31 as a result of a report on the South ,
Texas Project submitted to the applicant by the Quadrex Corporation in May 1981. A similar motion was submitted by Mr. Doherty on October 15, 1981, but denied by the Board without prejudice in order to allow Mr. Doherty to review the Quadrex Report. I f, after such review, Mr. Doherty still desired additional information, he was directed to specify:
l those portions of the Quadrex report which indicate that organizational changes (which were either not previously adverted to or were inadequately addressed in testimony in this case) ought to be made insofar as the Allens Creek facility is concerned and/or indicate that modifications (which were either not previously adverted to or were inadequately addressed in testimony in this case) ought to be made in the supervision of the ACNGS construction.
t Since November 10th, TEXPIRG has been on notice that if it wished to explore the relevence, if any,- of the Quadrex Report to this proceeding, it would be required to delineate how the specific findings of that report are l
l material to the question of the Applicant's technical quali-fication'.io.. build Allens Creek. TEXPIRG totally disregarded -
such instructions and there is no reason to further delay these proceedings in order to allow TEXPIRG time to remedy a pleading it knew was def;.cient at the time it was filed.2/
TEXPIRG's motion should therefore be denied.3/
V TEXPIRG also requests that the "need for power" issue be admitted as a TEXPIRG contention. Although TEXPIRG's ,
motion comes over two years after the final date for filing contentions, TEXPIRG alleges that good cause for its un-timely petition exists (1)'since TEXPIRG " thought that 'need for power' was a TEXPIRG contention that evidence had al-ready been heard on" (TEXPIRG Motion p. 5) and (2) because of certain recent developments.
The Board has previously taken the position that j it will take a strict view toward admitting late-filed /
i contentions (Tr. 12253). A strict. view is clearly justified '
l 2/ That TEXPIRG's interest is in delaying these proceed-t ings rather than developing a full record on this contention is abundantly clear from the fact that i TEXPIRG's counsel did not even appear to cross-examine tlle witnesses presented by Applicant to testify on j TEXPIRG AC 31.
3/ Applicant has discussed the merits of reopening the record for further testimony on this matter in its December 14 response to Mr. Doherty's motion. We incorporate that response herein by reference thereto.
.- . /.
, /
v g , / -
$l here. Neither o'f the r'easons given by TEXPIRG in support of ,
its untimely filing, rises to the level of the good cause ,
, /
showing required by 10'C.F.R. 5 2.714. '
r' '
Although TEXPIRG mayl ,
m, ,
have harbored the' illusion that "need' for power" was already 1 7 ,/ -
, y a TEXPIRG contention, the Board had expressly ruled to ths .
/
contrary. See p. Si. supra. Furthermore, as we p'ointedlout f' j, e, s < -,
in Section III hereto," the evidence tha't'TEXPIRGhwould haies, ',M -
i' ,
f the Board consider is {compo, sed primarly />b. pure spechhtion, ,
e s!< c
,, p i r ! ,,,y unsubtantiated claims or insignifican't inIorma'tions ,W oreover, j,
,i much of the new informati6n to which '-
TEX 51RG refers in its
' ,/.. /v pleading was available prioi to th -
clos'26f', e the hearings:. ,,
'is , s . . l 9 ?
and TEXPIRG has made no effort to , explaincYh'( it ks onlf ')now
-s t
,cf/, ( -
bringing such matters to the -r Board's ;;fattention. y , ,,
It is also cl6511that the, Appl'ican't's. testimony :' b n .,
/
v
. , , _ .~, '
updatingthedemandforEca[dt.intheERSupfis.eme~ntisexhash' ' ' '
, r e,, l
- 9-p p '
tive. Petitioner had7every ' -
opportunity to protect its *) em ,
?-
- +
u , ,
interests through the cross e': amination o,f Applicant's u i , ,
It,is difficult tosimaijine d eia t',
2 2 '
. witnesses on this subject.* ,,
under such circumstances ( the admission of this tontention.
, y. +
Q and the receipt-of the s7eculativa r .- >
evidence desir,ed-by'
. ,,?
',' l'e
. i TEXPIRG could in any fashi'o n be 5xpected to assist >in the -
i . ij '
development of.the :ecord in this proceeding. ' ', '
Finally, ;t is obvious that the admission of
// r, ,
TEXPIRG's "new" contantion after the close of the record , ,i
/
could only delay these proceedings. Indeed that is clearly /
i; j ..
, y
,P -
/
i 4 r
. .. N.~ -
- [
J , ,
a,~., . '
l TEXPIRGSs intent. The Board has before it a thorough record with regard to whether this plant is needed and whether it could be obviated by other means. Neither the state of the r,ecdrd nor the public interest would be served by the further f [.delafs'oughtbyTEXPIRG. For all of the foregoing reasons, e
I ,,j; the motion should be denied. This is particularly true
'f since TEXPIRG'S alleged new evidence does not challenge the
'i alternate grounds for justifying construction of Allens
/
/. Creek, ./which is to replace and/or gas generating plants. -
g (,
, ~
' j, VI l, -
f, /, f
'/For the foregoing reasons, Applicant respectfully in( ,
. reg.lests t. hat TEXPIRG's motions of December 7, 1981 be r de'p.ied in their entirety.
9,. *. , ,-
Respectfully submitted,
/
t OF COUNSEL:
. 46'th M s,
lf,'
BAKER & BOTTS Jj\ GreyJ oI(j( Cppeland g4 Q
~ "
'3000 One Shell Plaza SWott E. Rozzell l Houston, Texas,.77002 3000 One Shell Plaza
Houston, Texas 77002
/- ".. .<
(( LOWENSTEIN, NfdMAN, Jack R. Newman
. REIS & AXELRAD Robert H. Culp
,'/7 ~ ># 1025 Colinee -icy.t Ave. , N.W.
David Raskin Washington,j D.C. 20036 1025 Connecticut Ave., N.W.
9 , ,- l r Washington, D.C. 20036
. . . . . />.,'
- 4 ,
g ..
'. ATTORNEYS FOR APPLICANT Q f! , ' /, '
,r iy s., HOUSTON LIGHTING & POWER COMPANY
. 6, -t. .
i 3 rl -
I , ,.
I,
', , 1 , ,
- ' -% i' f, { ,,
-j j
.s M i h ,. ; g, a- * ; *'
j ; ,
t .*i, n ,, ; y-r #
(,. ,
~~t #*
'f
'a f _~,p- k y
A _j " "
,( ,.
N e .
< . h
,~ M ",;;
,L, .
C.ITED STATES OF AMERICA M '.D NUCLEAR'R,EGULATORY COMMISSION i .
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD N.t : ^%In the Matter of $
T$ '.', , 3 $
BOUSTON LIGHTING & POWER COMPANY $ Docket No. 50-466 N. s 6 (Allens Creek Nuclear Generating S Station, Unit 1) N ,_
5 i .
4
, 'C2RTIFICATE OF SERVICE y
I hereby certify.that copies of the foregoing Motion
- to Preclude Testimony of James M. Scott in the above-captioned proceeding were served on the following by deposit in the United
- States mail, postage prepaid this 17th day of December,1981.
N,,
- e. Sheldon J. Wolfe, Esq., Chairman Hon. Frank Petter n '%.' Atomic Safety and Licensing Mayor, City of Wallis M.
3 Board Panel U.S. Nuclea.r Reddlatory Commission P. O. Box 312 Wallis, Texas 77485
- y-Washington, D.C. '20555 Q- , Hon. Leroy H. Grebe
- ,% j Dr. E. Leonard Cheatum County Judge, Austin County Y
Route 3, Box 350A P. O. Box 99
'I Watkinsville, Georgia 30677 Bellville, Texas 77418 s
Mr. Gustave A. Linenberger Atomic Safety-and Licensing Atomic Safety and Licensing Appeal Board
' % Board.2anel U.S. Nuclear Regulatory g
p ,-
U.S. Nuclear Regulatory Commission Washington, D.'C. 20555 Commission Washington, D.C. 20555 r
g- % Mr. Chase;R. Stephens Atomic Safety and Licensing L, Docketing and Service Section Board Panel N Office of the Secretary U.S. Nuclear Regulatory q Of the Commission Commission Washington, D.Cl 20555
~
Washington, D.C. 20555
~
, s.
Susan Plettman Richard Black
, David Preister Staff Counsel Texas Attorney General's Office U.S. Nuclear Regulatory
^s P. O. Box 12548, Capitol Station Commission Austin, Texas 78711 Washington, D.C. 20555 s .,.
k
Bryan L. Baker Brenda McCorkle 1118 Montrose 6140 Darnell Houston, Texas 77019 Houston, Texas 77074 J. Morgan Bishop W. Matthew.Perrenod 11418 Oak Spring. 4070 Merrick Houston, Texas 77043 Houston, Texas 77025 Stephen A. Doggett Wayne E. Rentfro P. O. Box 592 P. O. Box 1335 Rosenberg, Texas 77471 Rosenberg, Texaws 77471 John F. Doherty William Schuessler 4327 Alconbury 5810 Darnel Houston', Texas 77021 Houston, Texas 77074 -
Carro Hinderstein James M. Scott '
608 Fannin, Suite 521 13935 Ivy Mount Houston, Texas 77002 Sugar Land, Texas 77478 D. Marrack V. O. " Butch" Carden, Jr.
420 Mulberry Lane City Attorney Bellaire, Texas 77401 City of Wallis P. O. Box A East' Bernard, Texas 77435
% . b(4+1 W J. regory) Cdpeland g, SR:1:H
__ -_ .___ a