ML20040E413
| ML20040E413 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 02/02/1982 |
| From: | Hiestand O DAIRYLAND POWER COOPERATIVE |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20040E414 | List: |
| References | |
| ISSUANCES-FTOL, NUDOCS 8202040306 | |
| Download: ML20040E413 (32) | |
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UNITED STATES OF AMERICA W NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
DAIRYLAND POWER COOPERATIVE
)
Docket No. 50-409
)
(FTOL Proceeding)
(La Crosse Boiling Water Reactor)
)
)
APPLICANT'S MOTION FOR
SUMMARY
DISPOSITION Pursuant to 10 C.F.R.
S 2.749 (1981), Dairyland Power Cooperative (Dairyland), the holder of Provisional Operating License No. DPR-45 for the La Crosse Boiling Water Reactor (LACBWR) and the applicant for a full term operating license (FTOL) in the above-captioned proceeding, hereby moves for summary disposition of all of the Coulee Region Energy Coalition's (CREC) environmental contentions and for a decision by the Licensing Board in Dairyland's favor as to 1/
all matters in this phase of the proceeding.- For the following reasons, Dairyland requests its motion he granted.
p5.s
/ /
_1_/
Resolution of the safety issues which have been raised in this proceeding has been deferred pending completion of the NRC Staff's Systematic Evaluation Program (SEP) to review 11 selected operating plants, including LACBWR, in light of current regulatory requirements.
8202040306 820202 PDR ADOCK 05000409 g
s 1.
INTRODUCTION On October 9, 1974, Dairyland applied for the con-version of its Provisional Operating License No. DPR-45 to a FTOL for LACBWR.
On April 10, 1978 notice of the opportu-nity for a hearing on the FTOL for LACBWR was published.
On May 15,1978 an Atomic Safety and Licensing Board was estab-lished.
On May 17, 1978 CREC filed a petition to intervene accompanied by their written contentions.
By Order dated November 30, 1979, six CREC contentions were admitted for consideration in the environmental phase of this proceeding.
Commencing on December 14, 1979, the NRC Staff submitted discovery requests to CREC for the factual support of their contentions.
After receiving legally and factually inadequate responses to its discovery requests, the NRC Staff, on June 6, 1980, filed a Motion for Summary Disposi-tion of all of CREC's contentions.
The Board thereafter convened a prehearing conference on June 19, 1980 at which it inquired whether CREC was prepared to present evidence to support its contentions.
Thereafter, the Board reopened discovery for the purpose of enabling CREC to submit in for-nation in support of its contentions in the form of supple-mental responses to the first round of discovery and responses to the second round of discovery.
On September 15, 1980 CREC submitted its second round of discovery responses.
However, the Board, on September 29, 1980, suspended the
e B FTOL proceeding pending completion of the show cause pro-ceeding in this docket.
That Board order was rescinded on August 19, 1981.
On September 9, 1981, the NRC Staff filed its Amendment to Its Motion for Summary Disposition which included the NRC Staff's discussion of the second round dis-covery.
Pursuant to this Board's order of October 14, 1981, CREC's response to the NRC Staff's Motion for Summary Dis-position was due on November 2, 1981.
To date CREC has not filed any response.
Dairyland, on October 5,1981, filed its Response in Support of the.NRC Staff's Amendmed Motion for Summary Disposition.
In its Response, Dairyland endorsed the position of the NRC Staff in its Motion and supporting affidavits.
Dairyland now submits its Motion for Summary Disposition.
II.
SUMMARY
DISPOSITION SHOULD BE GRANTED IN THIS PROCEEDING In what follows, Dairy'and will demonstrate that:
(1) the applicable legal standards governing summary 4
disposition support the grant of Dairyland's Motion; and (2) as to each of CREC's environmental contentions, there is no genuine issue of material fact and Dairyland is entitled f
to judgment as a matter of law.
1 I
l
. A.
NRC Case Precedent Supports the Grant of Dairyland's Motion The Commission and the Appeal Board have recog-nized the use of sunmary judgment to dispose of contentions as to which there are no genuine issues of fact.
- See, e.g.,
Northern States Power Co. (Prairie Island Generating Plant, Units 1 & 2), CLI-73-12, 6 AEC 241, 242 (1973), aff'd sub nom. BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974); Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2),
ALAB-130, 6 AEC 423, 424-25 (1973); Duquesne Light Co.
(Beaver Valley Power Station, Unit No. 1), ALAB-109, 6 AEC 243, 246 (1973).
As the Appeal Board found in the North Anna proceeding, summary disposition may be used to dispose of all contentions previously admitted in a proceeding:
This [the Board's admission of conten-tions] does not perforce mean that there will be a need for an evidentiary hear-ing on all or any of CEF's conten-tions.
Even those contentions found to be acceptable for admi ssion to the pro-ceeding will be susceptible to a notion for summary disposition under 10 C.F.R.
S 2.749.
Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-522, 9 NRC 54, 56 (1979) (emphasis added).
The NRC's summary disposition provision, 10 C.F.R.
S 2.749 (1981), is analogous to the summary judgment provi-sion of the federal courts, Rule 56 of~the Federal Rules of Civil Procedure.
See Cleveland Electric Illuminating Co.
. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 753-54 (1977); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-74-36, 7 AEC 877, 878 (1974); Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), ALAB-182, 7 AEC 210 (1974).
Like Rule 56, summary disposition is granted when there are'no genuine issues of fact related to a contention.
Jd.
In determining whether a party has raised a genuine issue of material fact, the NRC requires the propo-nent of an issue or contention to present a sufficient fac-tual basis to require further inquiry.
In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 1
Inc., 435 U.S. 519 (1978), the Supreme Court endorsed the I
requirement that intervenors must support their contentions sufficiently "to require reasonable minds to inquire fur-ther."
Id,. at 554.
NRC case law follows this standard; when intervenors fail to present a sufficient factual basis for their contentions to require further inquiry, those con-tentions may be dismissed.
- See, e.g.,
Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 &
2), ALAB-613,12 NRC 317 (1980), in which the Appeal Board stated:
In a ruling that has received explicit Supreme Court approval, the Commission has stressed that an intervenor must come forward with evidence " sufficient to require reasonable minds to inquire
. further" to insure that its contentions are explored at the hearing.
- 11. a t 340.
When there is no evidence to support a conten-3 tion or issue, summary disposition is used to avoid a need-less evidentiary hearing.
See Pennsylvania Power & Light Co. (Susquehanna Steam _ Electric Station, Units 1 & 2), LBP-81-8, 13 NRC 335 (1981); Northern States Power Co.,
supra; Mississippi Power & Light Co.,
supra; Dusquesne Light Co....
supra.
As the Board in Pennsylvania Power & Light Co; supra, stated in granting summary disposition as to certain intervenor contentions:
Both the Commission and the Appeal Board have long encouraged the use of summary disposition procedures to resolve issues where the proponent of the issue has failed to establish that a genuine issue exists.
Pennsylvania Power & Light Co.,
supra at 337 (emphasis added).
The NRC Rules of Practice require intervenors to respond to a Motion for summary disposition with facts.
Where intervenors fail to respond, facts properly supported in the Motion for summary disposition are taken as admitted and the Motion, if otherwise proper, is granted.
10 C.F.R.
S 2.749(a).
See Virginia Electric and Power Cla;. (North Anna Nuclear Power Station), ALAB-584, 11 NRC 451, 453 (1980).
In addition, in cases in which a summary disposition motion is supported by affidavits, 10 C.F.R.
S 2.749(b) provides:
. [A] party opposing the motion may not rest upon the mere allegations or denials of his answer; his answer by affidavits or as otherwise provided must set forth specific facts showing that there is a genuine issue of fact.
See Union Electric Co. (Callaway Plant, Unit 1), Docket No.
STN 50-483 OL (?!enorandum and Order, November 13, 1981);
ljouston Lighting & Power Co. (Allens Creek Nuclear Generat-ing Station, Unit 1), ALAB-629, 13 NRC 75 (1981); Pennsyl-vania Power & Light Co.,
supra at 337.
Thus, intervenors cannot rely merely on unsupported allegations, denials, and clains in response to a notion for summary disposition sup-ported by affidavits, but must present a sufficient factual basis for their contentions to create a genuine issue of 2/
material fact.-
As demonstrated below, CREC has failed to raise a single genuine issue of material fact as to any of its envi-ronmental contentions and Dairyland is entitled to judgment as a matter of law.
CREC's contentions are either legally improper or factually unsupported.
Indeed, CREC has failed to respond in any way to the NRC Staff's Motion for Summary
-2/
Moreover, in cases in which an intervenor's contentions are addressed in an environmental impact statenent, the intervenors must present nore detailed specific facts to focus the Board's attention.
See generally, Northern States Power Co. (Tyrone Energy Pare, Unit 1), LBP 37, 5 NRC 1298, 1301 (1977).
. Disposition or to submit a statement of facts as to which CREC claims there is a genuine issue as required by 10 C.F.R. S 2.749(a) (1981).
The facts asserted in the NRC Staff's Motion and supported by affidavit must, therefore, be deemed to be admitted.
In addition, there are no other factual or legal issues related to CREC's contentions.
Consequently, the NRC Staff's and Dairyland Motions for Sum-mary Disposition should be granted.
Attached to this Motion are Dairyland's Statement of Material Facts as to Which There is no Genuine Issue to be Heard (the Statement) and the affidavits of Mr. Thomas A.
Steele, Mr. Irving L. Chait, and Mr. Larry H. Thorson.
Dairyland submits that this motion and the attached State-ment and affidavits, read in conjunction with the NRC Staff's Final Environmental Statement Related to the Operation of La Crosse Boiling Water Reactor (Docket No. 50-409, April, 1980)
(NUREG-0191) (FES) and viewed in light of CREC's failure to respond in any way to the NRC Staff's Motion for Summary Disposition, compel the grant of summary disposition.
B.
As To Each Of CREC'S Environmental Contentions There Is No Genuine Issue of Material Fact and Dairyland is Entitled To Judgment As A Matter of Law In what follows, each of CREC's environmental con-tentions will be addressed.
Dairyland will show that:
(1) there is no factual basis for any of CREC's contentions; i
I
. and (2) Dairyland is entitled to judgment as a matter of l
. law.
1.
CREC Contention 2A CREC Contention 2A str,tes:
CREC contends that the excessive off-gas emissions from LACBWR are inimical to public health and safety, and fail to comply with the restrictions set forth in 10 C.F.R. Part 50, Appendix I.
In Contention 2A CREC alleges that the off-gas emissions from LACBWR are excessive and fail to comply with the requirement set forth in Appendix 1 to 10 C.F.R. Part 50 that releases to unrestricted areas during normal reactor operation be kept "as low as reasonably achievable."
Appendix I,Section I, 10 C.F.R. Part 50 provides in part:
Design objectives and limiting condi-tions for operation conforming to the guidelines of this appendix shall be deemed a conclusive showing of compli-ance with the "as low as is reasonably achievable" requirements of 10 C.F.R. 50.34a and 50.36a.
Thus, design objectives and limiting conditions meeting the requirements of Appendix I are conclusively deemed to meet the requirements of 10 C.F.R. 55 50.34a and 50.36a (1981).
As described in detail in the FES, the design objectives and limiting conditions for operation of LACBWR conform to the requirements of Appendix 1.
See FES at 3-14, 5-11 & 5-12.
This establishes conclusively that LACBWR complies with the
s ALARA requirements for off-gas emissions and that its off-gas emissione are not inimical to the public health.
Moreover, LACBWR's actual off-gas emission levels are considerably lower than the limits in Appendix I.
They simply cannot be considered " excessive" under any reasonable standard.
CREC has failed to provide any factual support for Contention 2A.
Despite discovery requests for specific information, CREC has produced no evidence to show that LACBWR's emissions and dose levels are inimical to the public health and safety.
Therefore, CREC's contention that LACBWR off-gas emissions are harmful to the public may be disposed of summarily.
Without establishing a factual basis to support emissions or dose levels different from the levels in the FES and establishing the levels in the FES are incorrect, CREC's contention is purely conjecture.
More-over, without challenging the levels set forth in Appendix 3/
1,-
and without proposing any alternate emission or dose
-3/
Some of CREC's responses to the NRC Staff's inter-rogatories suggest that CREC questions the adequacy of the standards set forth in Appendix 1.
CREC cannot, in a licensing proceeding, challenge the standards set forth in Appendix I, 10 C.F.R. Part 50 (1981).
Section 2.758(a) of the NRC's Rules of Practice specifically states:
any rule or regulation of the Com-mission, or any provision thereof, issued in its program for the licensing (Continued)
. levels, CREC cannot question the public safety of LACBWR's off-gas emissions.
Moreover, by failing to respond to the NRC Staf f's Motion for Summary Disposition and supporting affidavits or to submit a statement of facts to which CREC claims there is a genuine issue, CREC has admitted the factual assertions made therein.
See 10 C.F.R. S 2.749(a)
(1981).
The dose levels set forth in the FES are com-pletely accurate and account fo r:
(1) site and area condi-tions; (2) local topography; (3) local meteorology- (4)
~
~ ~ ~ani regulation of production and utili-zation facilities... shall not be subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding involving ini-tial licensing subject to this subpart.
10 C.F.R. S 2.758(a) (1981).
-See Metropolitan Edison Co. (Three Mile Island Nuclear 3tation, Unit 2), ALAB-456, 7 NRC 63, 65-67 (1978); Potomac Electric Power Co.
(Douglas Point Nuclear Generating Station, Units 1 &
2), ALAB-218, 8 AEC 79, 89 (1974).
This requirement may only be waived when the petitioner meets the extremely high threshold burden of showing "special circumstances" such that the " application of the rule or regulation would not serve the purposes for which the rule or regulation was adopted."
10 C.F.R.
S 2.758(b) (1981).
The appticant for a waiver faces a "high hurdle."
WAIT Radio v.
FCC (I), 418 F.2d 1153, 1157 (D.C. Cir. 1969), affirmed following remand to FCC, WAIT Radio v. FCC TTIT, 459 F.2if T263, cert. ~
~diRFile d, 409 U. S. 1207 (1972); Duke Power Co.~ TCatawba
~ REEL ~ar Station, Units 1 & 2), LBP-74-22, 7 AEC 659, 686 (1974).
If a petitioner fails to show "special circumstances," the contention must be denied.
Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant),
LBP-74-41, 7 AEC 1015,1017-20 (1975); Commonwealth Edison Co.
(Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 404-05 (1974).
CREC has made no such showing in this proceeding.
individuals living in worst receptor areas; (5) tourism in the area; and (6) the local dairy industry.
It must also be remembered that, unlike other NRC construction permit or operating license proceedings in which no actual operating experience for the plant under review exists, LACBWR has been operating for over 11 years.
This operating experi-ence, particularly the most recent experience, greatly enhances the veracity of the emission and dose estimates contained in the FES.
CREC, in its discovery responses, has offered no basis to question the accuracy of the emission and dose estinates contained in the FES.
It has offered no factual basis to challenge the NRC models used to calculate doses.
CREC has failed to meet its obligation as a party to this proceeding to support its Contention 2A with a fac-tual basis or to respond to the NRC Staff's Motion for Sum-mary Disposition and supporting affidavits.
CREC has also failed to comply with the requirement of 10 C.F.R.
S 2.749(a) to subnit a statement of facts to which CREC clains there is a genuine issue.
CREC has offered only baseless and unsupported assertions.
Under the NRC Rules of I
Practice, CREC is obligated to produce a sufficient factual basis to warrant further inquiry into its contentions.
Pennsylvania Power & Light Co. (Susquehana Stean Electric
- Station, Units 1 & 2), ALAB-613,12 NRC 317, 340 (1980).
Because CREC has not produced any factual basis for Contention 2A, Dairyland is entitled to summary disposition of this contention.
2.
CREC Contention 2B CREC Contention 2B states:
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 C.F.R. Part 20.
In Contention 2B, CREC claims that the off-gas emissions from LACBWR are excessive and fail to comply with the radiation protection standards for plant employees set forth in 10 C.F.R. Part 20 (1981).
Contrary to CREC's unsupported claim, LACBWR'c off-gas emissions levels are not excessive and are actually below the employee radiation pro-tection standards contained in 10 C.F.R. Part 20 (1981).
Part 20 of 10 C.F.R. establishes the standards for occupational radiation exposure of employees.
In evaluating occupational exposure of employees, two performance stan-dards are relevant:
(1) the record of occupational over-exposures; and (2) the annual average exposure levels.
As stated in the FES, employee exposure levels at LACBWR are below the limits of 10 C.F.R. Part 20 in terms of both cver-exposures and annual exposure levels.
Such compliance with
. Part 20 is conclusive that employee exposures from LACBWR's off-gas emissions is not " inimical" to the health of LACBWR employees.
Over LACBWR's 11 year operating history, Dairyland has admitted that there has been only one incident of indi-vidual exposure to external radiation in excess of regula-tory limits.
This one incident, which occurred in 1975, does not indicate a departure from good radiation protection practices or the restrictions in 10 C.F.R. Part 20.
More-over, as documented in the FES, 5-12, the annual average exposure to LACBWR employees is well below the limits estab-lished in 10 C.F.R. Part 20.
Average annual occupational exposure rates at LACBWR from 1970 through 1978 were 1.17R per worker.
In recognition of this fact, the NRC Staff con-cluded in the FES that "there will be no measureable radio-logical impact on man from routine operation of the plant."
FES at 5-12.
Thus, under no reasonable standard 4
can radiation exposures to LACBWR employees from any source be deemed " excessive."
It follows that occupational expo-sures from off-gas emissions cannot themselves be deemed 4
"exces s ive. '* /
4/
As with Contention 2A, CREC seems to question the adequacy of the standards of 10 C.F.R. Part 20 (1981).
As stated above, under 10 C.F.R. 5 2.758(a),
CREC cannot challenge the NRC's regulations in a licensing proceeding.
In addition, CREC has not justified a waiver of 10 C.F.R. Part 20 (1981).
. In evaluating LACBWR's off-gas emissions and occu-pational exposures, it must be remembered that, unlike other construction permit and operating license proceedings in which no actual operating experience for the plant under review exists, LACBWR has been operating for over 11 years.
This operating experience, particularly the more recent experience, greatly enhances the veracity of the emission and exposure ectinates contained in the FES.
In contract to this clear and extensive record of emissions and radiation protection at LACBWR, CREC, in its responses to the NRC Staf f's discovery requests, has pro-duced no factual-basis for the existence of contrary emis-
~
sion or occupational exposure levels.
CREC cannot merely assert that any exposure is inimical to the public health and safety..
Ra ther, it must produce a factual basis to merit further inquiry.
See Pennsylvania Power & Light Co.,
supra at 340.
CREC has not produced any factual basis to question.either the emission levels contained in the FES or the calculated' exposure levels for LACBWR employees.
CREC has-aIso failed to respond to the NRC Staff's Motion for Summary Disposition and. supporting affidavits or to file the statement required by 10 C.F.R. S 2.749(a) (1981).
CREC has, therefore, failed to neet its duty as a party to this proceeding to raise a genuine issue of material fact.
. Consequently, Dairyland is entitled to summary disposition of CREC Contention 2B.
3.
CREC Contention 8 CREC Contention 8 states:
CREC contends that LACBWR's radiological environmental monitoring program is inadequate in terms of (a) the methodology 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.
As described in the affidavit of Thomas A. Steele, Dairyland's Director of Environmental Affairs (Steele Affi-davit), Dairyland's radiological environmental monitoring program complies with all the requirements of the NRC Staff Regulatory Guide 4.1,~/
5 the U.S. Environmental Protection Agency, the Public Health Service, and the International
-5/
Compliance with the requirements of the Regulatory Guide is itself " entitled to prima facie weight" and, in the absence of any facts to the contrary, would be conclusive as to compliance with applicable regula-tions.
Vermont Yankee Nuclear Power Corp. (Ve rmon t Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809, 811 (1974); Petition for Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 406-07 (1978).
l
. Atomic Energy Agency.
This fact alone is virtually disposi-tive of CREC Contention 8 which is simply factually incorrect.
Dairyland's radiological environmental monitoring progran is comprehensive in every respect, employing stan-dard sampling and testing methodologies which account for local conditions.
Dairyland conducts gamna isotopic analy-sis, gross beta analysis, strontiun, and I-131 analysis.
Testing for these elements is conducted at numerous loca-tions year-around, at distances up to eight miles from the plant.
Steele Affidavit, 12.
Dairyland monitors for radio-activity in the air, surface water, ground water, drinking water, river sediment, fish, and food.
Samples are collected from sone sites as frequently as once every week.
In addi-tion, as is routinely done at other nuclear facilities located in dairy regions, Dairyland collects milk samples every 15 days when cows are on pasture.
Steele Affidavit, Table 1.
Dairyland has operated its radiological. environ-mental monitoring program over the past 11 years.
This pro-gram evolved in response to and is specifically tailored to local conditions in the LACBWR area.
The program is tai-lored to the local meteorology, growing seasons, topography, population distribution and agricultural and human activi-ties in the LACBWR area.
Steele Affidavit, 12.
This 11
. year operating history demonstrates that the size, frequency and distribution requirements of the NRC have been met and that exposure pathways are being monitored adequately.
CREC has not produced, in response to the NRC Staf f's discovery requests, any factual basis to question the adequacy of Dairyland's radiological environnental noni-toring progran.
CREC has produced no specific facts showing that Dairyland's monitoring program does not meet all appli-cable requirements or that it is not tailored to local con-ditions.
Rather, CREC has offered only incorrect, irrele-vant and unsupported claims regarding Dairyland's monitoring program.
These unsupported claims do not raise any genuine issue of material fact tequiring a full hearing before this Board.
Moreover, CREC has failed to respond to the NRC Staff's Motion for Summary Disposition and supporting affi-davits regarding Contention 8 or to file a statement of facts as to which it claims there is a genuine issue.
Accordingly, Dairyland is entitled to summary disposition of CREC Contention 8.
4.
CREC Contention 9 CREC Contention 9 states:
CREC contends that the exposure of the population to the combined and synergis-tic health effects of the airborne effluents released by LACBWR and the Genoa 3 coal plant is inimical to public health and safety.
. In Contention 9 CREC contends, apparently based on its own hypothesis, that airborne effluents from LACBWR and the Genoa 3 coal-fired plant somehow combine synergistically to produce harmful effects greater than the sum of the separate effects of the effluents of each plant.
Contrary to CREC's baseless assertion, there is no credible scien-tific evidence to support a claim of coal-nuclear syner-gistic effects.
CREC has provided no basis to suppose that the health effects from combined effluents are other than cumulative.
This contention is based solely on CREC's speculation; neither the Atomic Energy Act nor the National Environmental Policy Act require NRC Licensing Boards to indulge in such speculation.
This Board need not assess a postulated environ-mental effect which goes beyond the " rule of reason."
Licensing Boards need not evaluate the existence or signifi-cance of every remote or speculative environmental impacts which theoretically may be associated with the operation of nuclear power plants.
- See, e.g.,
Northern States Power Co.
(Prairie Island Nuclear Generating Plant, Units 1 & 2),
ALAB-455, 7 NRC 41, 48 (1978); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827 (D.C. Cir. 1972).
CREC's postulated synergisism is too speculative to warrant a full evidentiary hearing.
There is no evidence to present and no support for CREC's Contention 9.
Moreover, CREC has
. failed to respond to the NRC Staff's Motion for Summary Dis-position and supporting affidavits which show that there is no credible scientific evidence of coal-nuclear synergistic effects.
CREC has also not submitted a statement of facts regarding this contention as to which it claims there is a genuine issue.
As demonstrated in the FES, LACBWR complies with all applicable regulations regarding protection of the public from radiation.
Additionally, the Genoa 3 coal-fired plant environment is monitored for particulates and sulfur dioxide and has been shown to meet all applicable state and federal air quality standards.
See 1979 Annual Air Quality Monitoring Summary (Dairyland Power Cooperative) (on file with Wisconsin Department of Natural Resources).
This is demonstrated by the attainment status of the air quality control region for Vernon County, Wisconsin in accordance with 40 C.F.R. 5 81.350 (1981).
Indeed, the designated attainment status for Vernon County is better than national standards.
Because these standards were developed in the presence of background radiation from LACBWR, they have already taken into account whatever synergistic effects I
there may be.
If CREC is actually dissatisfied with these standards the proper forum for raising this issue is the U.S. Environmental Protection Agency or the Wisconsin state authority responsible for implementing the Clean Air Act.
21 Based on the foregoing reasons, Dairyland submits that no genuine issue of material fact exists regarding CREC Contention 9 and that Dairyland is entitled to summary disposition.
5.
CREC Contention 19 CREC Contention 19 states:
CREC contends that the economic cost-benefit balance does not favor issuance of a full-term operating license due to LACBWR's small size, relative obsoles-cence and retrofitting requirements; its low operating efficiency as evidenced by low megawatt hours of cumulative output, low unit capacity factor, and substan-tial downtime; the costs of spent fuel storage; the rising costs of fuel and maintenance; and the eventual costs of decommissioning.
Summary disposition of this contention should be granted because (1) the plain language of the contention raises only an economic cost / benefit issue, (2) the board is not empowered to consider economic justifications, and (3)
CREC has not shown any factual basis to support its contentions.
In Contention 19, CREC raises a purely economic cost / benefit issue.
The plain language of the contention states that "the economic cost-benefit balance does not favor issuance of a full-term operating license" (emphasis added).
The contention then recites the economic causes for
. this negative economic cost-benefit balance; size, age, operating efficiency, retrofitting needs, power output, downtime, capacity, spent fuel storage costs, fuel costs, maintenance costs and decommissioning costs.
All these causes are presented as economic, not environmental, costs.
CREC, in its responses to the NRC Staff's discovery requests, has treated Contention 19 as a purely economic contention.
CREC's intent regarding the meaning of Contention 19 throughout this proceeding has been clear and consistent.
CREC itself regards Contention 19 as a purely economic 6/
issue.-
Neither the Atomic Energy Act nor the National Environmental Policy Act grant the NRC authority to review the economic justification for a nuclear facility.
These judgments are uniformly left to the utility.
See Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-470, 7 NRC 752, 757-58 (1978); Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-458, 7 NRC 155,162 (1978);
Tennessee Valley Authority (Hartsville Plant, Units 1A, 1B, 2A, 2B), ALAB-367, 5 NRC 92, 102-03 (1977); Illinois Power Co. (Clinton Power Station, Units-1 & 2), ALAB-340, 4 NRC 27, 48 (1976); Northern States Power Co. (Prairie Island 6/
Dairyland fully supports the detailed analysis of Contention 19 provided in the NRC Staff's Amended Motion for Summary Disposition.
. Nuclear Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 862 (1974).
As the Appeal Board stated in Detroit Edison Sh3_, supra:
[T]he Nuclear Regulatory Commission and its adjudicatory boards do not sit to supervise the general business decisions of the public utility industry nor to second-guess the judgment of those who do; that task is entrusted to others.
Injuries from those causes are beyond the zone of interests that Section 105c of the Atomic Energy Act was designed to protect.
I [. a t 757-58.
3 The NRC has no responsibility to determine whether the continued operation of LACBWR is the most financially advantageous method.for Dairyland to meet the power needs of its system, particularly in light of the fact that LACBWR is already built and operating with minimal environmental effects.
Therefore, because CREC seeks denial of the Dairy-land application for a full-term operating license on econo-mic grounds through Contention 19, this contention must be rejected as a matter of law.
Even if it was proper to consider the economic costs of operating LACBWR under a full-term license, these costs do not outweigh the benefits derived from operation.
As the affidavit of Mr. Irving L. Chait (Chait Affidavit) states, the costs of operating LACBWR do not outweigh the l
benefits from continued operation.
The Chait Affidavit
24 -
reviews the specific costs stated in Contention 19 and con-cludes that they do not outweigh the benefits of continued operation.
The Chait Affidavit and the FES, 8-3-8-8, detail the need for the power to be generated by LACBWR under a full-tern operating license, and conclude that the economic cost-benefit balance favors continued operation.
- Indeed, the FES concludes that
[I]f the units' capacity factor approxi-nates 40%, there will be no cost penalty associated with its continued long-tern operation; whereas, if the capacity fac-tor approximates 50%, significant econo-mic savings should be realized.
FES at 8-8.
During 1979, 1980 and 1981 (through November)
LACBWR operated at capacity factors of 47.8%, 50.9% and 57.2% respectively.
See NRC Operating Units Status Report, Licensed Operating Reactors - NUREG-0020.
Thus, the signi-ficant cost savings forecast in the FES are being and will continue to be realized.
The evidence of record in the recently concluded spent fuel pool proceeding for LACBWR amply demonstrates that the economic cost-benefit balance favors continued operation of LACBWR.
While the need for power evidence pre-sented in that proceeding focused on the period from 1979-1982, this evidence demonstrates that there is an even greater need for power in the Dairyland system in the decade following 1982.
The FES, 8-5-8-8, also projected that the need for power in Dairyland's system will grow in the next
. decade.
Because:
(1) the Licensing Board determined that the benefits of continued operation of LACBWR during the period from 1979-1982 outweighed the costs and negligible
~
environmental impacts associated with plant operation during this period; (2) the need for power during the period from 1982-1990 will be even greater than the need from 1979-1982, FES a t 8-5-8-8; and (3) the costs and environmental impacts associated with operation of LACBVR will remain virtually 7/
the same,-
the benefits of operation during the period of 1982-1990 must necessarily offset the costs and impacts associated with continued operation of LACBWR.
CREC responses to the NRC Staff's discovery requests fail to reveal any factual basis to question the findings of the FES and the Chait Affidavit that the econo-nic cost-henefit balance favors continued operation of LACBWR.
For example, CREC's claims regarding decommission-ing costs are irrelevant and totally unfounded.
As the Chait Affidavit explains, continued operation of LACBWR will not effect decommissioning methods or costs.
CREC has failed to present specific cost increases in decommissioning 8/
LACBWR resulting from continued operation.-
CREC has also
-7/
As the Chait Affidavit states, nuclear fuel costs will increase to reflect inflation, but will not increase faster than other fuels.
-8/
The FES, at 8-1, states that the cost of decommis-sioning LACBWR will be "significantly" lower than the (Continued)
D 26 -
I failed to support its other cost claims with a factual i
basis.
See Pennsylvania Power & Light Co., supra _ at 340.
Therefore, there is no genuine issue of material fact i
j regarding the economic cost-benefit balance of continued operation of LACBWR.
Accordingly, Dairyland is entitled to summary disposition of this issue.
Should the Licensing Board consider Contention 19 to include an issue of whether the environmental cost-benefit balances favor continued operation of LACBWR, Dairy-l land submits:that there is no genuine issue of material fact and that Dairyland is entitled to judgment as a matter of law on this issue.
As the affidavit of Mr. Thomas Steele 1
Regarding Contention 19 (Steele Affidavit) states, the events listed in Contention 19 (retrofitting, maintenance, and decommissioning) do not result in sufficient environ-mental consequences to outweigh the benefits derived from operation of LACBWR.
As the evidence of record in this proceeding and I
in the spent fuel proceeding demonstrates, the environmental costs associated with the operation of LACBWR are very low and do not outweigh the benefits of operation.
The FES and i
the Steele Affidavit state that the radiological conse-quences of LACBWR operation are minimal.
In addition, the estimated decommissioning costs because of LACBWR's small size.
l l
. FES does not identify any significant environnental conse-quence of continued operation.
The FES at 10-4 states:
The only environnental effects asso-ciated with the continued operation of the plant appear to be the discharge of amounts of radioactivity to the environ-ment which are a small percentage of the natural levels of radioacitvity in the environment and an impact on Mississippi River aquatic life from withdrawal and discharge of cooling water which is not discernible.
According to the assess-ment of Section 5, LACBWR meets the "as-low-as-is-reasonably-acievable" criterion of the NRC for radioactive discharges.
The effects of river life are not dis-cernible and what little impact does occur will be reversible.
In contrast, CREC has not provided a factual basis to sup-port its claim of environnental consequences resulting from spent fuel storage, decommissioning, retrofitting, nainte-nance, and parts availability problems.
Indeed, LACBWR's long record of operation graphically demonstrates that there are no significant environmental consecuences from opera-tion.
For example, LACBWR has undergone retrofitting at various times.
During these retrofit's, there have been no radiation exposures or other environmental consequences above applicable limits.
CREC has offered no factual basis 9/
to contradict this record /-
9/
As with any other power generating facility, LACBWR receives routine maintenance.
LACBWR's record of main-tenance demonstrates that there have been no signif-icant environmental consequences from maintenance.
Once again, CREC has produced no evidence to contradict this record.
. In contrast to the low environmental cost of operating LACBWR, there is a clear benefit from continued operation, reliable electrical energy.
As the record shows, over the past 11 years, LACBWR has supplied power to meet the baseload demand of Dairyland's system.
As the Steele Affidavit states, LACBWR has generated approximately 2,500 GWH of electricity over the last 13 years.
The FES docu-ments show in detail the benefits of continued operation of LACBWR.
FES at 8-3-8-8, 10-4.
The Steele and Chait Affida-vits and the FES conclude that the benefits of continued operation of LACBWR far outweigh the environmental conse-quences.
The FES at 10-4 states:
In the staff's opinion, the benefits of continued production of electrical energy by the plant and its contribution to DPC's generating reserves outweigh the minimal environmental effects caused by its continued operation, as well as the alternatives of higher cost replace-ment power, and the economic and envi-ronmental costs of new construction.
CREC has not offered any factual basis to question whether LACBWR produces the stated benefits.
CREC has produced no evidence regarding the need for LACBWR's energy, LACBWR's ability to meet that need, or the environmental consequences.
CREC has also failed to respond to any aspect 10f This includes approximately two years during which LACBWR was operated by Allis Chalmers Conpany, its manufacturer.
The power produced during that time was sold to Dairyland.
. of the NRC Staff's Motion for Summary Disposition and supporting affidavits regarding Contention 19 has not offered any facts to which it claims there is a genuine issue.
Thus, CREC has failed to meet its obligation as a party to this proceeding to support its contention with a sufficient factual basis to merit further inquiry of this Contention.
Accordingly, Dairyland is entitled to summary disposition of Contention 19.
6.
CREC Contention 22 CREC Contention 22 states:
CREC contends that DPC has not suffi-ciently pronoted energy conservation programs to decrease electrical demand, such as flat rate structure, higher peak usage rates, and elimination of elec-trical usage promotion, which would eli-minate the need for LACBUR, as the least cost-effective unit in the DPC system.
CREC Contention 22 has no basis whatsoever in fact.
As attested to in the affidavit of Mr. Larry H.
Thorson, Dairyland's Manager of Energy Conservation and Load
[
Management (Thorson Affidavit) and as documented in the FES, i
Dairyland has a comprehensive program to promote energy con-servation and improved load management.
The facts also show that despite this comprehensive program, there is and will l
continue to be a need for the energy produced by LACBWR.
l l
l
30 -
As detailed in the Thorson Affidavit, Dairyland has not encouraged electrical use through promotional adver-tising since 1971.
Rather, Dairyland has directed its efforts at energy conservation.
These efforts include rate structure reform, home energy audits, water heater insula-tion, and efficient utilization of all energy sources.
Dairyland believes this program has helped control the growth of demand for electricity in the Dairyland system.
In the area of load management -- which can have a great effect on demand -- Dairyland has a comprehensive progran to encourage energy conservation through load management.
As the Thorson Affidavit details, Dairyland's distribution cooperative rate schedules are flat, as is its wholesale rate schedule.
In addition, Dairyland's wholesale rate schedules incorporate a demand charge.
Commencing May 1, 1982, Dairyland's wholesale rate will include an annual demand charge in order to encourage reduced system peaks.
Moreover, Dairyland and its 29 member cooperatives are work-ing aggressively on a centralized load control progran which 1
is designed to reduce the growth of demand.
This program is scheduled to be fully implemented by December 1, 1982.
Given these facts, it is simply disengenuous to claim that Dairyland does not sufficiently promote energy conservation.
Even taking Dairyland's comprehensive energy con-servation program into account, however, the need for LACBWR
- 31 exists.
This Board, in the spent fuel proceeding, found a need for the power generated by LACBWR.
The load forecasts in evidence in that proceeding and contained in the FES likewise account for energy conservation; nevertheless, they still demonstrate that the power supplied by LACBWR will be crucial to enabling Dairyland to neet its system needs dur-ing the next decade.
FES at 8-1-8-8.
In contrast to this record, CREC has failed to produce a factual basis for its assertions in Contention 22.
CREC has not shown in all its criticism of Dairyland that the need for LACBWR can be eliminated or even significantly reduced through conservation.
Indeed, CREC admits that Dairyland is taking steps to promote energy conservation.
In addition, CREC's responses to the NRC Staff's discovery requests contain misstatements.
In particular, CREC asserts, without factual support, that Dairyland is empowered to control the rates of its member cooperatives.
However, as the Thorson Affidavit states, "Dairyland has no authority to set or control the rate structure or the policies of its member co-ops."
Thorson Affidavit, 1 6.
Thus, this assertion, like all CREC's assertions related to Contention 22, are unfounded and unsupported.
CREC has failed to present sufficient factual support for it9 claims to warrant a full evidentiary hearing on Contention 22.
Moreover, CREC has failed to respond to i
l l
. the N"3 Staff's Motion for Summary Disposition and suppo_>;ing affidavits or to submit a statement of facts to which it claims there is a genuine issue.
It is clear, therefore, that there is no genuine issue of material fact regarding this issue.
Accordingly, Dairyland is entitled to summary disposition of CREC Contention 22.
III.
CONCLUSION Dairyland submits that the attached Statement and Affidavit, the prior pleadings in this proceeding and the FES issued by the NRC Staff amply demonstrate that there is no genuine issue of material fact associated with any of CREC's contentions.
Accordingly, pursuant to 10 C.F.R. 5 2.749, Dairyland respectfully requests that the Board grant summary disposition in Dairyland's favor with respect to all of the environmental contentions and dismiss this phase of the proceeding.
Respectfully submitted,
. % (.4 %.i d.'S.'Hiestand Irvin N. Shapell Attorneys for Dairyland Power Cooperative OF COUNSEL Morgan,. Lewis & Bockius 1800 M Street, N.W.
Washington, D.C.
20036 DATED:
February 2, 1981
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