ML20045E848
| ML20045E848 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 05/15/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-068, SECY-A-80-68, NUDOCS 9307060135 | |
| Download: ML20045E848 (42) | |
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UNITED STATES j
NUCLEAR REGULATORY COMMISSION WASHf NGTON, D. C. 20555 i
SECY-A-80-68 May 15, 1980 COMMISSIONER ACTION For:
The Commission From:
Leonard Bickwit, Jr., General Counsel
Subject:
REVIEW OF ALAB-590 (IU THE liATTER OP HOUSTON LIGHTING & POWER CO.)
Facility:
Allens Creek Nuclear Generating Station, Unit 1 To inform the Commission of an Appeal
Purpose:
Board decision on which no petitions for review have been filed [End which 6M in our opinion, Review Time Expires:
!!ay 1980 Discus sion :
!!r.
F. H.
Potthoff sought to intervene in the Allens Creek proceeding, alleging, among other things, that the NRC staff had f ailed to give appropriate considera-tion in the FES to the existence of a possibic " biomass" f arn, as described in a 1974 Report by the Federal Energy Administration's Project Independence.
He contended that the building and opera-tion of a biomass production facility would be environmentally preferable to the Allens Creek facility.
In its Final Supplement to the FES, the staff had concluded that a similar alternative, use of photosynthetic materials and organic waste, would not be viabic.
!!r..Potthoff apparently would directly contest that conclusion based, in part, on the Project Independence Report.
The Licensing Board rejected that contention and, in effect, denied his intervention on the " sole ground that ' [nleither in that contention nor during the special prehearing conference (Tr. 931-32) did tir. Potthoff provide a basis for alleg-ing that such a large-scale marine Contacts 4 3 2 24. Clfopko,
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GILINSM92-436 PDR
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a biomass farm would be an environmentally superior alternative.'"
ALAB-590, slip op. at 7 [first emphasis in original, second emphasis added).
A divided Appeal Board reversed, finding that the Licensing Board disregarded the long-standing administrative practice that the merits of a contention are not a proper subject for examination in a decision whether to permit intervention.
- See, e.g.,
Hississippi Power & Light Co.
(Grand Gulf Nuclear Station, Units 1 and 2), A LAB-13 0, 6 AEC 423 (1973).
- Rather, all that a prospective timely intervenor need establish is his standing and articulate one " reasonably specific" contention within the Licensing Board's jurisdiction.
As the Appeal Board majority noted, all that was required of Mr. Potthoff at this stage was "to state his reasons (i.e.,
the basis) for his contention that the biomass alternative should receive additional consideration.
That responsibility was sufficiently discharged by his references to Project Independence and his assertion respect-ing the environmental superiority of a marine biomass farm."
ALAB-590, slip op, at 11.
The test of the relative merit of a contention (i.e., its substance) is on a motion for summary disposition.
Dr. Buck vigorously dissented from the majority position, arguing that the majority result will have an unreason-able effect.
Dr. Buck found that the contention was frivolous on its face, based on his calculations of Potthoff's suggested alternative and an evaluation of the Project Independence Report.
Dissenting Opinion, slip op. at 23-24.
The dissent also faults the petitioner for not setting forth specific "informa-tion on how such a large scale farm can come into reality."
Id._ at 24-25.
In addition, the disser' believes that this suggested alternative is unrealistic.
3 1
Id. at 26-27.
Ultimately, the dissent urges Commission review because he be-lieves that ALAB-590 will have a "sig-nificant and intolerable impact" and is
" marked extension" of NRC practice.
a 11emorandum for Leonard Bickwit from Chairman Rosenthal, "ALAB-590" at 2 (tiay 2, 1980) (Attachment 2).
hWe believe that cri
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(,. I Recommendation:
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h.'_.. '
i J'. ' _l... s Leonard Bickwit, Jr.
s, General Counsel Attachments:
1..
ALAB-590 2.
!!cmorandum, 5/2/80, Rosenthal to Bickwit
S Commissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Thursday, May 22, 1980.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT May 20, 1980, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments r,ay be expected.
L DISTRIBUTION Commissioners Commission Staff Offices Secretariat
i o
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 7
ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S. Rosenthal, Chairman Dr. John H. Buck Michael C. Farrar 4
)
In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY
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Docket No. 50-466
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(Allens Creek Nuclear Generating
)
Station, Unit 1)
)
)
Mr. F.H. Potthoff, III, Houston, Texas, appellant pro se.
Mr. John F. Doherty, Houston, Texas, intervenor pro se.
Mr. James Scott, Jr., Houston, Texas, for the intervenor, Texas Public Interest Research Group.
Messrs. Jack R. Newman, Robert H. Culp and David B.
Raskin,. Washington, D.C.,.
and J. Grecory Copeland, C.. Thomas Biddle and Charles G. Thrash, Houston, Texas, for the applicant, Houston Lighting and Power Company.
Mr. Stephen M. Sohinki for the Nuclear Regulatory Commission staff.
DECISION April 22, 1980
( ALAB-590) t t
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' '4 Opinion of the Board by Mr. Rosenthal (in which Mr. Farrar concurs) :
(
Now before us is yet another challenge to portions of the Licensing Board's unpublished March 10, 1980 order in this con-struction permit proceeding involving the proposed Allens Creek nuclear facility near Houston, Texas. 1!
This time, we are asked to overturn the rejection in that order of one of the contentions (No. VI) submitted by F.H. Potthoff, III, in con-nection with his petition for leave to intervene in the pro-ceeding.
Because the rejection led to the outright denial of the petition, S! it is subject to interlocutory appellate re-view under 10 CFR 2.714a at the instance of Mr. Potthoff.
1/
See ALAB-585, 11 NRC (March 25, 1980) and ALAB-586, 11 NRC (March 27, I780).
For the reasons stated in
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those opinions, the appeals there considered were sum-marily dismissed as unauthorized by the Commission's Rules of Practice.
Those reasons are inapplicable to the appeal now at hand.
2/
In the March 10 order (at pp. 9-12), the Licensing Board also considered and rejected several other contentions
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put forth by Mr. Potthoff.
He failed to exercise his right to complain of that action.
This does not, how-ever, preclude him from attacking the ultimate denial of his petition.
For, had the Board below accepted conten-tion VI as litigable, the necessary consequence would have been the grant of intervention without regard to the disposition of the remaining contentions.
10 CFR
- 2. 714 (b) ; Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424 (1973) and cases there cited.
3/
Section 2.714a (b) provides that "[a]n order wholly deny-ing a petition for leave to' intervene * *
- is appealable l
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(FOOTNOTE CONTINUED ON REXT PAGE)
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- 1 On a full consideration of the arguments advanced in sup-port of and in opposition to the appeal, b! we conclude that con-tention VI should have been accepted as litigable.
For this reason, the March 10 order must be reversed (insofar as it dis-allowed the contention) and the cause remanded to the Board below with instructions to grant Mr. Potthoff's intervention petition.
I i
Contention VI first surf aced in Mr., Potthof f 's ' authorized supplemental filing on June 1, 1979.
In its entirety, it read:-
i In the FES, the Staff states that biomass production is "not now a reasonable alter-native" to ACNGS.
However, Project Inde-pendence estimates fuels from biomass pro-duction (urban waste, agricultural waste, 1
H terrestrialcroppg marine crops) would amount to 3 x 10 gross BTUs per year,
.)
and that large quantities of marine crops i
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(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 1 by the petitioner on the question whether the petition-
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- *
- should have been granted in whole or in part" (empha-sis added).
It is plain from these terms that Mr. Potthoff i
alone was entitled to appeal from the denial of his petition
-- and he has done so.
Nonetheless, in purported reliance on an ambiguous statement at p.-109 of the March 10 or-der, another petitioner already admitted to the proceed-ing (John F. Doherty) endeavored to file an appeal of his own on Mr. Potthof f 's behalf -- similarly attacking the rejection of contention VI.
Although that appeal will not lie,'we adopt the suggestio!. of both the applicant and the NRC staff that Mr. Doherty's papers be treated as a brief in support of Mr. Potthoff's appeal.
Such a brief is expressly authorized by Section 2.714a(a).
4/
In addition to Mr. Doherty, intervenor TexPIRG supports the appeal.
It is opposed by both the applicant and the
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NRC staff.
l
, ~ -
3 e.g-.,-e.
m,--
l can be grown and harvested without subsidies j
when oil hits $11 per barrel.
Project Inde-pendence estimates a 100,000 acre marine biomass farm, producing 27 x 1012 BTUs/ year, would cost $578 million.
I contend building and operating a marine biomass farm, or other biomass production systems, would be environ-nentally preferable to ACNGS, and ask the Board to deny the permit under the NEPA.,5/
--5/
The statement of the NRC staf f to which Mr. Potthoff ob-viously had reference was contained in the Final Supple-ment to the Allens Creek Final Environmental Statement.
More specifically, in the course of its discussion of alternate energy sources and systems, the staff had this to say about " photosynthetic materials and organic wastes" (at p. S.9-7; footnotes omitted):
Photosynthetically produced organic material (grown specifically for utilization as fuel material) and organic solid wastes (animal wastes and sewage) can either be burned di-rectly to produce steam in equipment similar to that used with coal or can be subjected to anaerobic fermentation to methane.
To be burned directly, these fuels must first be dried in order for combustion to be self-sustaining.
If the organic material has a high water content, the energy required for drying prior to combustion may equal or ex-ceed the heat content of the material itself.
The growing of plants for energy generation is relatively inefficient because the solar conversion efficiency of the photosynthetic process is seldom over 3% during the growing season.
Therefore, the amount of land re-quired for a given energy output is very high.
Based on a heating value of 7500 Btu /lb of dry plant tissue and yields of 10 to 30 tons of biomass per acre per year, the land required for a 100-MWe organic-fired power plant would be between 25 and 50 sq miles, or 600 to 1200 sq miles'for a plant equivalent to the proposed ACNGS.
(FOOTNOTE CONTINUED ON NEXT PAGE)
I l 1 By way of response, both the applicant and the NRC staff maintained that contention VI was fatally defective.
For its part, the app'licant characterized the contention as " imper-missibly vague"; viz., as amounting to simply a " broadside t
assertion" that " building and operating a marine biomass farm, or other biomass production systems, would be environmentally preferable" to the Allens Creek nuclear facility.
In this con-1 nection, the applicant noted that Mr. Potthoff had neither-i
.provided a description of a " biomass f arm" nor alleged that the claimed biomass generating alternative would be seasonably available.
F ur th e r, the Board below was told that the petitioner
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(FOOTNOTE CONTINUED FROM PREVIOUS P. AGE)
The technical feasibility of bioconversion of organic material to methane has been estab-lished for many years.
The immediate goal is to establish the economics of the process using organic wastes and organic materials resulting from photosynthesis.. However, anaerobic fer-mentation to methane of the entire amount of organic solid wastes believed to be economi-cally recoverable would represent a recovery of 3.6 to 7.8 x 1014 Btu / year, or approximately 2 to 3 % of the yearly consumption of methane in the United States.
Fifteen-year research and development programs are foreseen to make the processes for both direct combustion and conversion to methane of photosynthetically produced material and solid organic wastes economically and technically feasible on a commercial basis.
Production of methane on a large scale is not now a reasonable alterna-tive.
_ )
)
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had "fai1[ed) to controvert the detailed Staff review of bio-mass set out" in the FES Supplement (see fn.
5, supra). b/
As the staff saw it, the principal difficulty with the contention was the absence of any assigned basis for the
" allegation of environmental superiority of biomass production over the proposed facility".
Beyond that, the staff found the contention unduly " speculative" in view of the like absence of a prof fered basis for the implicit claim that " biomass conver-
.sion constitutes a viable energy option to Allens Creek". 1 At a prehearing conference held on October 16, 1979', the Licensing Board called upon Mr. Potthof f to rebut the objec-tions to contention VI.
Denying that it was too vague, the petitioner stated that what he had in mind was that "they would grow kelp and take it in and have it decay into alcohol or methane or something like that" (Tr. 9 31).
He went on to assert that the basis for his claim of environmental preferability "is project independence, which says that a biomass farm could be ready * *
- in 1986" (Tr. 932).
6/
" Applicant's Response to 'More Contentions Submitted by F.H. Potthoff, III'", dated June 18, 1979, at p. 2.
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"NRC Staf f's Response to More Contentions Submitted by F.H. Potthoff, III", dated June 18, 1979, at pp. 2-3.
In its March 10 order (at pp. 11-12), the Licensing Board rejected contention VI on the sole ground that "[nleither in that contention nor during the special prehearing conference i
(Tr. 931-32) did Mr. Potthoff provide a basis for alleging that such a large scale marine biomass f arm would be an en-vironmentally superior alternative".
Our decision in Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-4 5 8, 7 NRC 15 5, 162 (1978) was cited for the proposition that the National En-vironmental Policy Act does not require the striking of a cost /
benefit balance with respect to alternatives which are not environmentally preferable.
II We long ago held.that, although a totally deficient plead-ing may not be justifie'd on the basis that it was prepared by a layman without the assistance of counsel, a pro se petitioner is not "to be held to those standards of clarity and precision to which a lawyer might reasonably be expected to adhere".
Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 4 87, 4 89 (1973); see also Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2),
ALAB-469, 7 NRC 470, 471 (1978).
In this instance, notwith-standing that it scarcely qualifies as a model of artistic draf tsmanship, the intended thrust of contention VI is not
4 difficult to perceive.
In essence, Mr. Potthoff seeks to chal-lenge the staff's dismissal of biomass production as a viable alternative to the proposed Allens Creek facility.
More specif-ically, he insists that a marine biomass farm (apparently not considered by the staff in its evaluation of alternatives in the FES Supplement) should be substituted for Allens Creek.
As the basis for this assertion, he relies upon the Federal Energy Administration's " Project Independence Report" issued in November 1974, E! as well as upon his claim that such a biomass f arm would be environmentally preferable.
l A.
As we have seen, the Licensing ~ Board rejected the bio-mass contention because, and o'nly because, Mr. Potthof f offered no justification for th'e assertion of environmental superiority.
'3tated otherwise, the Board accepted the position of the appli-cant and the staff that, in order to put into litigation the i
marine biomass alternative (and the staff s failure to have con-sidered it), the petit'ioner was required not merely to allege that that alternative would be environmentally preferable but also to explain why that is so.
That view cannot be squared with our 1973 decision in Grand Gulf, ALAB-130, fn.
2 supra.
There, we were confronted b
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Although Mr. Potthof f referred simply to " Project Inde-pendence", the Licensing Board provided that further
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identification in its March 10 order (at p. 11).
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9-with the question of the suf ficiency for intervention purposes of a contention that "the alternatives of conserving electricity or utilizing other methods of producing energy have not been adequately considered".
At a prehearing conference, the peti-tiener's counsel had stated, inter alia, that he proposed to introduce evidence that there were geothermal sources in the relevant service area.
Given this particularization, the Licensing Board determined that the contention fulfilled the requirement (now contained in 10 CFR 2.714 (b)) that a petitioner for intervention set forth the bases for each of his con,tentions with reasonable specificity --
i.e., the requirement which the Board below found that Mr. Potthoff has not satisfied here.
Appealing from the resultant grant of intervention, the Grand Gulf applicant pointed to the representation in both its environmental report and the staff's draft environmental statement that there were no known potential geothermal sites in the service area.
More significantly, in supporting the applicant's appeal, the staf f advanced precisely the same argument that was pressed upon the Licensing Board in the present case:
" peti-tiener has neither buttressed its allegation that there are geothermal sources in the area nor indicated that the alleged sources would or could provide a feasible alternative to the Grand Gulf facility".
6 AEC at 426.
But neither of these
considerations carried the day.
Affirming the Licensing Board, we had this to say:
[W)e stress again that, in passing upon the question as to whether an intervention petition should be granted, it is not the function of a licensing board to reach the merits of any contention contained therein.
Moreover, Section 2.714 does not require the petition to detail the evidence which will be offered in support of each contention.
It is enough that, as here, the basis for the contention respecting the inadequacy of the consideration of alternatives to the construc-tion of this plant is identified with reason-able specificity.
Ibid.
Apparently, Grand Gulf was simply overlooked by both the parties and the Board below in this case.
For there is no material distinction which might legitimately be drawn between the contention there involved and the one now under consideration.
In both instances, the contention was cddressed to the f ailure to have adequately considered an allegedly viable alterncte source of energy.
Also in each instance, the petitioner assigned reasons for his belief that the suggested alternative warranted further consideration:
in Grand Gulf, because geothermal sources were available; in this case, because (among other things) l 9/
In this connection, the briefs of the applicant and the staff in opposition to the appeal not only do not refer
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to Grand Gulf, but also are devoid of any mention of the many other prior decisions of this Board which have con-strued and applied the contentions requirement contained in 10 CFR 2.714.
See fn.10, infra.
biomass sources were both available and environmentally pref-Finally, both contentions suffered from the same erable.
the Grand Gulf petitioner did not supply claimed infirmity:
the underpinnings for his assertion that geothermal sources Potthoff did not attempt to justify his were available; Mr.
allegation that a marine biomass farm would be environmentally preferable.
The teachings of Grand Gulf thus are fully applicable
.here and mandate the reversal of the denial of Mr. Potthoff's petition.
The short of the matter is that, just as the staff unsuccessfully endeavored to do in Grand Gulf, the Board below erroneously imposed upon a petitioner for intervention an obli-in actuality, arises only after the petitioner has gation that, become a party to the proceeding.
More specifically, all that was required of Mr. Potthof f on the petition level was to state his reasons (i. e., the basis) for his contention that the bio-That mass alternative should receive additional consideration.
responsibility was sufficiently discharged by his references to Project Independence and his assertion respecting the environ-mental superiority of a marine biomass farm.EE/
There is no room for the slightest doubt that we have 10/
- See, e.g.,
adhered to Grand Gulf over the years.
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(North Anna Nuclear Virginia Electric and Power Co. ALAB-522, 9 NRC 54, 56 Power Station, Units 1 and 2),
(FOOTNOTE CONTINUED ON NEXT PAGE)
B.
Our determination that Mr. Potthoff must be admitted to the proceeding on the strength of his contention VI does not carry with it any implication that we view the contention to be meritorious.
To the contrary, although the content of
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(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
(1979); Duke Power Co. (Transportation of Spent Fuel from Oconee to McGuire), ALAB-528, 9 NRC 146, 151 (1979).
In the latter case, for instance, we held adequate a conten-tion which, without elaboration, asserted that local pub-lic safety of ficials were not prepared.to deal with the emergency situation which might result in the event of a traffic accident involving the vehicle carrying the spent fuel between facilities.
Grand' Gulf was specifically cited as authority for the proposition that the petitioner was not required, as a precondition to intervention, "to establish that its assertion is well-founded in fact".
Rather, "whether a particular concern is justified must be lef t for consideration when the merits of the controversy are reached".
Also instructive is the discussion of the contentions re-quirement in Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 ano 3), ALAB-216, 8 AEC 13, 20-21 (1974).
In the course of that discussion, we noted that it had been repeatedly emphasized that in passing upon the question of whether an intervention petition should be granted, it is not the function of a licensing board to reach the merits of any con-tention contained therein.
Moreover, Section 2.714 does not require the petition to detail the evidence which will be offered in support of.each contention.
It is enough that the ba-sis for at least one contention be identified with reasonable specificity.
Id. at 20.
Here, such identification was_provided.
To ripeat, given Mr. Potthoff's further particularization at the prehearing conference, the applicant and the staff were supplied with enough "so that they will know at least generally what they will have to defend against or oppose".
Ibid.
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. J the Project Independence report cited by the petitioner is not now before us, we think there to be appreciable room for doubt that the burning of methane gas produced by the harvesting and j
fermentation of kelp grown on a nassive -- i.e., a 100,000 acre (or 156 square ndle) -- marine biomass farm could be shown to be both a viable and an environmentally preferable energy al-ternative to the generation of electricity by means of nuclear fission.
But, again, whether Mr. Potthof f will be able to prove the assertions underlying the contention is quite beside the point at this preliminary stage of the proceeding.
All,that is of present moment is that, under the Rules of Practice of this Commission, as they have been uniformly interpreted, he is en-titled to party status to afford him the opportunity to attempt to do so.b1!
A noteworthy page in the annals of Atomic Energy Commis-11/
sion adjudication illumes the importance attached by the judiciary to insuring that persons have their day in court even with respect to claims which, on their face, appear to be of highly dubious merit.
See In re Grossman, 107 U.S.P.O. 181 (AEC Pat. Comp. Bd. 19 55) ; remanded for reconsideration in light of additional evidence (D.C.
Cir. No. 12959, February 10, 1956); decision on remand, 111 U.S.P.O. 388 (AEC Pat. Comp. Bd. 1956); affirmed on further judicial review, 246 F.2d 709 (D.C. Cir.1957),
appeal dismissed, 355 U.S. 285 (1958).
This chronicle involved a dentist who claimed that he was entitled to compensation under the Atomic Energy Act as (to quote the court of appeals) "the inventor who first gave the atomic hydrogen bomb formulas to the United States of America".
The moral of the court's 1956 remand order should be self-evident.
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It does not perforce follow, of course, that contention VI will have to be taken up at the forthcoming evidentiary hearing on the Allens Creek application.
As we emphasized in Grand Gulf, ALAB-130, supra, in the context of the_ geothermal alternative contention there in question, "it will be open to both the appli-i cant and the [NRC] staff to move, pursuant to [10 CFR) 2.749, for summary disposition * *
- on the ground that 'there is no genuine issue to be heard' respecting the availability of ade-We went on to quate geothermal sources in the relevant area".
observe that:
In responding to such a motion, should one be filed, [ petitioner) will be obliged to furnish the Licensing Board with a statement of the material f acts which he considers to establish the evidence of a genuine issue respecting such availability.
Section 2.749 (b) is most specif-ic in this regard:
When a motion for summary disposition is made and supported as provided in this section, a party opposing the mo-tion may not rest upon the mere alle-gations or denials of his answer; his answer by af fidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue of fact.
If no such answer is filed, the decision sought, if appropriate, shall be rendered.
6 AEC at 4 2 6.
That the Section 2.749 summary disposition procedures pro-l vide, in reality as well as in theory, an efficacious means of
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avoiding unnecessary and possibly time-consuming hearings on demonstrably insubstantial issues is amply reflected by our re-cent decision in Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584,11 NRC (March 24, 1980).
In that proceeding, involving an application for an operating license amendment to permit the expansion of the capacity of a spent fuel pool, the Licensing Board summarily resolved in the applicant's f avor all of the intervenors' con-
-tentions.
One of those contentions was to the effect that there had been an inadequate consideration of certain specified alterna-tives to the proposed pool modification.
On the intervenors' ap-peal, we endorsed the Licensing Board's refusal to order a hearing on that contention.12/
In doing.so, we invoked the very Midland principle that the Licensing Board in the case at bar improperly employed for the quite different purpose of denying interven-tion.11!
More specifically, because,'in response to the appli-cant's motion for summary disposition, the intervenors had not demonstrated that a genuine issue of fact existed respecting the environmental superiority of any of their suggested alterna-tives, we held that as a matter of law none of these alternatives 12/
ALAB-584 affirmed the grant of summary disposition in its entirety.
Although there is a pending petition for Com-i mission review of that decision, it does not challenge the disposition made of the alternatives contention.
13/
See p.
7, supra.
=..
- had to be further explored at an evidentiary hearing.
ALAB-584, (slip opinion, pp. 10-15).1$/
supra, 11 NRC at 1
In sum, the rejection of Mr. Potthoff's contention VI, and the resultant denial of his intervention petition, rested upon a misconception respecting the time at which, under the Commis-sion's Rules of Practice, petitioners for intervention must establish the existence of some factual support for the partic-
'ular assertions which they have advanced as the basis for their contentions.
This demonstration need not be undertaken as a precondition to the acceptance of a contention for the limited purpose of determining whether to allow intervention under 10 CFR 2.714.
Rather, the obligation arises solely (1) in re-sponse to a subsequent motion of another party seeking to dis-pora summarily of the contention under 10 CFR 2.749 for want of or (2) in the absence of such a genuine issue of material fact; a motion, at the evidentiary hearing itself.
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We need add only that, if contention VI is without any merit (which we may not and do not now decide), the applicant and the staff should be a5Ie to obtain sum-mary disposition of it with little difficulty.
Stated otherwise, only if there is at least some possible substance to the contention might those parties have to expend much time or ef fort in opposing it -- either by motion or at an evidentiary hearing.
In such cir-cumstances, of course, they could scarcely be heard to complain that the admission of the contention to the proceeding imposed an unreasonable burden upon them.
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1980 order The portion of the Licensing Board's March 10, dealing with Mr. Potthoff's contention VI is therefore reversed j
and the cause remanded with instructions both to accept that contention as litigable and to grant the petition for interven-tion.
i It is so ORDERED.
1 FOR THE APPEAL BOARD b.b d ti
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C. Jeay Bishop Secretary to the Appeal Board i
The concurring opinion of Mr. Farrar and the dissenting 18 et sec.
opinion of Dr. Buck follow, p.
b w
- 18 1
Concurrina opinion of Mr. Farrar:
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The Chairman has done his customary thorough job of
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marshalling the facts and the law in the course of demon-strating that Mr. Potthoff should have been admitted as an intervenor on the strength of his sixth contention.
That contention concerns whether a generating plant fueled by the products of a " marine biomass f arm" is a preferable alternative to a nuclear power plant.
Notwithstanding the force of the Chairman's opinion, some observers may none-theless wonder why, in this era of heightened safety-con-sciousness, the agency's resources must be diverted to consider such a curious matter.
That would not be an unreasonable reaction to our decision.
Indeed, even though I am almost entirely without knowledge of this particular subject, my' intuition tells me that, when the facts are in, for one reason or another the proffered alternative will not appear to be superior to the nuclear plant.
But as I understand the principles that gov'ern all judicial and administrative proceedings, I am not allowed to decide cases on the basis of lack of know-ledge, intuition, or personal predilections.
Rather, there must be something put before me that would enable me to reach m*
my judgments in knowing f ashion.
At this threshold juncture, I cannot do that with this contention.
j This does not mean that valuable hearing time must be consumed with lengthy consideration of contentions that can be readily demonstrated to have no merit.
As the Chairman has stressed, traditional procedures are available, and have proven effective when invoked, for disposing of such contentions summarily; for years we have encouraged their They are designed to allow adjudicators to dispose use.
of matters on the basis of unchallenged information validly put before them, rather than on their own ingrained propen-sities.
In this connection, it would be unfair, unwise and (in cases involving safety matters) dangerous to allow ad-judicators, before the evidence is in, to reject challenges to the plant on the basis of unspoken assumptions or their
,j sometimes less than reliable convictions about what that 1/
evidence would show.
One of the prices paid -- in the l
courts and in administrative agencies -- for insuring that 1/ I hasten to add that I do not believe, and in no way mean to suggest by these generalized remarks, that anything like this occurred below.
To the contrary, I believe the Board below simply misapplied the govern-ing principles in what is concededly a close case (see also fn. 2, Lnfra).
My comments here are entirely theoretical in nc-re, designed to point up the rationale behind those.
..siling pri.ciples and why they must be applied here.
l
m
~
contestants and issues are treated fairly is seeming inefficiency, i.e.,
some time will be used giving litigants a chance to establish propositions that ultimately prove invalid.
As I understand it, our system of justice in general and our Rules of Practice in particular embody the judgment that,in the long run, time used in that fashion is to be viewed as having been well spent.
Fcr these reasons, and as unsound as the result may appear to some, I am compelled to join the Chairman in 2/
admitting the " biomass" contention into the proceeding.--
How long it stays there remains to be seen.
If it is as lacking in merit as the dissent would hava it and as the staff and applicant appear to believe, counsel should be able easily to demonstrate that fact by af fidavit of those 3/
knowledgeable in the field.
That is how they would have
--2/
Our decision considers only the one contention brought before us.
But the Licensing Board had to deal at the prehearing conference and in its subsequent order with a myriad of potential intervenors and proffered con-tentions.
Many were admitted, many were rejected.
In the circumstances, our reversal of the Board's action on one of the contentions should not be allowed to ob-scure its generally commendable handling of this com-plex proceeding.
3/
In response to Dr. Buck's dissenting opinion, I need add only that we all agree that NEPA does not require
~-
detailed review of the environmental effects of alter-natives that are only renote and speculative possibilities (cf. pp. 25-26, infra). But that only frames the question; it does not supply the answer.
For this is an adjudica-tory proceeding; until the facts are before us in some legitimate form, we cannot say definitively that the alternative the petitioner is seeking to advance fits (FOOTNOTE CONTINUED ON PREVIOUS PAGE)
4 21 -
to proceed if they wished to rid themselves of a non-merit-orious complaint in court;--4/
that is how they must proceed here.
If they make a record of indisputable facts in their favor, the contention may -- with certitude which is now lacking -- be summarily rejected.
Except for my opening description of his opinion, the Chairman joins in the observations made herein.
--3/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 4 into the " remote and speculative" mold.
The Licensing Board did not characterize it as such (compare TI.C.3-4 of its order, pp. 10-11); for its part, the staff deemed similar alternatives at least worthy of discussion in the Final Environmental Statement.
Of course, if on a summary judgment motion petitioner's alternative proves to be remote and speculative, no further consideration need be given it.
Then, not now, would be the time for the Board below to apply the teachings of Natural Resources Defense Council v. Morton, 458 F.2d 827, 837-38 (D.C. Cir. 1972); Consumers Power Co. (Midland Units 1 and 2), CLI-74-5, 7 AEC 19, 24, 30-32 (1974); and Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S.
519, 531-35, 549-55 (1978).
4/
See Rule 56, F.R. Civ. P; see also Rule 12(b), parti-cularly its last sentence.
~~
e
Dissenting opinion of Dr. Buck:
My colleagues accept petitioner's contention No. VI 1
and allow him to intervene in the proceeding under 10 CFR 2.714, the Commission's intervention rule.
They do so i
even though the contention is invalid by its own terms.
Inherent in their action is the proposition that in ruling on the admissibility of a contention contained in a petition for intervention, a licensing board need not be concerned with the substance of a contention; that all a board needs to do in this regard is to ascertain that reasons have been given for the contention without regard to whether they make practical sense.
I am unwilling to believe that the rule must be read to give it such unreasonable effect.
Petitioner's contention No. VI is that a large-scale, marine biomass f arm, used for growing kelp to produce alcohol
- i or methane gas, would be an environmentally superior alter-native to the Allens Creek nuclear facility and should be 1
substituted for it.
Relying on the " Project Independence Report," he further asserts that a 100,000 acre marine i
12 j
biomass farm costing S578 million will produce 27 x 10 BTUs/ year and that a biomass farm (presumably one of that 1
i l
i size) can be ready in 1986.
In my view, this contention j
i is unrealistic and frivolous on its face and its rejec-tion proper at this stage of the licensing proceeding.
Just a few simple computations utilizing petitioner's own energy output figures associated with his hypothetical ma-rine biomass f arm will suffice to show the total frivolity of his claim.
As noted, according to the petitioner, a 100,000 acre (or 156 sq. mile) marine biomass farm will produce 12 BTUs/ year.
The Allen's enough kelp to supply 27 x 10 12 Creek facility, however, is designed to produce 107 x 10 BTUs/ year, roughly four times the amount of the postulated marine biomass f arm.
What this means is that the farm would have to quadruple its production to meet the power needs projected to be served by the plant.
Assuming a fourfold increase in the marine area necessary to produce the kelp (a reasonable assumption for this purpose), the result is a marine biomass farm comprising 400,000 acres or 624 square miles.
Whether we accept petitioner's claim that a 156 square mile biomass f arm is the energy equivalent to the Allens Creek plant or the extrapolated 624 square
~
+.
mile farm, either shows the utter unreality of the 1/
contention.-~
Moreover, contention No. VI is defective in another respect.
It fails, in my view, to satisfy the Commission's intervention rule that the bases for a contention which a petitioner seeks to have litigated must be set,forth with
" reasonable specificity."
l The Project Independence Report on which petitioner relies as the basis for marine biomass farm contention lacks information on how such a large scale farm can come j
1/ This observation assumes petitioner's contention in its most favorable light.
Information in the Project j
~-
Independence Report indicates that a marine area twice as large (1248 square miles) would be necessary to grow sufficient kelp to produce the energy equivalent of the plant.
This is because the 27 x 1012 BTUs/ year figure for a 100,000 acre farm was based on an assumed 60 per-cent conversion efficiency in the production of the gas
-l for use in a power plant.
The efficiency drops to 30 percent, according to the report, after accounting for the energy required to sustain the conversion process.
Thus, the energy that would be available for.use in a power plant from a 100,000 acre farm (based on 30 percent 12 BTUs/ year; and to provide efficiency) is only 13.5 x 10 the energy equivalent to that produced at the Allens Creek facility a kelp farm of 800,000 acres, or 1248 square miles would be needed.
See Tables 5 and 6 of the Project Independence Blueprint Final Task Force i
Report on Solar Energy,at pp. V-16, V-20 througn V-22.
Moreover, the study emphasizes that the data in the report are speculative and work needed to sup-port them is just beginning.
Id. at p. V-14.
j
into reality.
As the report itself explains, the Project Independence study in this regard is, at most, an effort to conceptualize the potential energy that might be avail-I able from biomass resources.
It contemplated a ten-year research and development program, to be completed in 1985, to demonstrate the economic and technical feasibility of their utilization.
Project Independence Blueprint Final Task Force Report on Solar Energy,at pp. V-31 through V-39.
At this point, we, of course, need not be concerned with whether such a program has in f act been undertaken.
But.even assuming this had been done, it would be years under the study's projections before a marine biomass farm could even be expected.
Apart from any other con-sideration, a viable alternative must be an energy source which will be commercially available by 1987, the projected date of operation of the Allens Creek plant.
The report itself does not offer the marine biomass farm as such an alternative.
I find contention No. VI unacceptable for litigation purposes for still another reason.
The environmental review mandated by NEPA is subject to a rule of reason, it need
~.
not include review of alternatives which are only remote and speculative possibilities.
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519, 551 (1978), quoting NRDC v. Morton, 458 F.2d 827, 837-38 (D.C. Cir. 1972).
Our own decisions have declared as much.
See, e.g.,
Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-518, 9 NRC 14, 38 (1979);
cf. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 48 (1978).
This being so, I find unreasonable the decision to place petitioner's contention into litigation, a con-2/
tention which by its own terms is clearly unrealistic.--
2/ At footnote 3 of his concurring opinion, Mr. Farrar agrees that NEPA does not require detailed review
~~
of environmental ef f ects of alternatives that are only remote and speculative possibilities, but argues '
that that rule comes into play only af ter the petitioner is allowed to submit his evidence, not before.
That argument assumes the answer to the matter at issue here.
No support is given for it.
Certainly, neither NEPA nor our intervention rule specifies that there must always be some evidentiary consideration before a prof fered alternative, offering only remote and specula-tive possibilities, can be laid aside. On the other hand, since NEPA clearly does not require agency consideration of l
such alternatives, there is no compelling reason for viewing our intervention rule as requiring additional i
treatment of an alternative which its own terms show is remote and speculative at best.
I
. l
i In this connection, it has been held that intervention as of right in judicial proceedings must be measured by a practical rather than technical yardstick.
U.S. v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 841 (1975), cert, denied, 425 U.S. 944 (1976).
Absent Commission declaration to the contrary, I perceive no reason for not applying a similar standard for deciding intervention petitions under our rules.
3/
My colleagues point to our Grand Gulf-- and related decisions as controlling the result they reach here.
In Grand Gulf the contention was that "the alternatives of conserving electricity or utilizing other methods of pro-ducing energy have not been adequately considered."
Relying on the statement by petitioner's counsel that he intended to introduce evidence that there were geothermal sources in the relevant service area, we held that the contention was adequate "given this particularization."
6 AEC at 425-26.
Far from being essentially similar as viewed by my colleagues, that case and the case before us now are significantly different.
In Grand Gulf, there was nothing 3/ Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973).
l
. 1 in the geothermal source contention to suggest that given the proper geothermal resource in the area, a geothermal plant could not be a viable alternative.
In that circum-stance, we found the contention, as particularized, to be sufficient for purposes of the intervention rule.
But here we have allegations which, even if taken as true, do not support the proposition for which they are advanced.
- Surely, our rule should not be viewed as requiring further consideration of an issue where proof of the allegations will meet with 4/
J guaranteed failure ~~
4/ My colleague, Mr. Farrar, suggests that " inefficiency" sometimes is the price paid to achieve fairness in giving litigants a chance to have their positions established for consideration on their merits.
But the question of fairness is a false issue here.
The only question present is whether the petitioner has set forth allegations which have at least a modicum of ap-parent substance as to warrant exploring them further.
Where, as here, the allegations themselves show that success cannot be achieved, their further consideration would be no more than wasted effort. Such waste should not be compelled under the guise of fairness.
Both of my colleagues suggest that the burden imposed on j
others by requiring further proceedings on the allegations here can be limited through utilization of the summary disposition procedure provided by our rules.
But even this procedure imposes substantial burdens, not only on the parties but on the licensing board and on us as well because of appeals which often result.
Even more im-portant is the impact the ruling of my colleagues will have in the future.
It would force the acceptance of 1
obviously invalid contentions made by petitioners who (FOOTNOTE CONTINUED ON NEXT PAGE)
In this regard, I do not find the support that my colleaguos do in the Grossman case, discussed in footnote 11 of the principal opinion.
They seemingly cite that case as standing for the proposition that even a frivolous claim is entitled to be heard on its merits.
They obtain more from the case than can be drawn from it.
To begin with, Grossman did not involve the question of a person's right to intervene in a proceeding involving other parties.
Beyond that, the court's opinion is so summary that one needs to examine the underlying decisions of the Atomic Energy Commission to acquire an understanding of its import.
Grossman, a dentist, had made a claim with the Atomic Energy Commission for compensation under special provisions of the Atomic Energy Act.
107 U.S.P.Q. 181 (19 55).
He alleged that "he had delivered to officers of the United States the disclosures of several military weapons."
Ibid.
i
__4/ (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) seek to intervene in our license proceedings, requiring the staff and others to waste valuable time and other scarce resources which, in going through the motions of defending against them, could otherwise be put to pro-4 ductive use.
Mr. Farrar also alludes to the grave safety consequences which might result in other cases if the proposition they advocate here is not followed.
This raises another false issue.
Such problems can.be dealt with if and as they arise.
l
30 -
The disclosures were explained in detail, a portion of which was.as follows:
The production of a bomb or poison by placing powdered Uranium in the crucible of a High Voltage High Frequency Electro Thermic Furnace, heating to the utmost temperature, allowing it to explode by its own heat, or by the addition of Potassium Nitrate and Zirconium Powder, or Zirconium Powder.with Ammonium Nitrate, Gun Powder or other ex-plosive powder or other means of explosion.
The Oxide of Uranium or the Fluoride can be substituted for the metal.
Tanks of Arsenic and Hydrogen, and Fluorine can be adjuvants along with Cyanogen or Hydro -Cyanics.
Id. at 182 Following a decision by the Commission rejecting his claim, Grossman appealed to the court.
As part of his appeal he claimed that he had new evidence that the United States had used his " Atomic-Hydrogen-Thermonuclear Formulas
'In All Detonations At First Test, Hiroshima, Nagasaki, Bikini, Ivy and Others."
111 U.S.p.Q. 388 (1956).
In detailing his new evidence, he explained, inter alia:
The ingredients of the formula given to the U.S.A.
for the Atomic H Bombs, by Dr. Cornell Grossman were All in the Radioactive Dust from the Nuclear Detonation that took place on Bikini Atoll on March 1, 1954.
The Institute for Chemical Research of Kyoto University, in Kyoto, Japan, published a large monograph on the FALL OUT, and specifically named Dr. Grossman 's ingredients.
e s
If the U.S.A, did not use Dr. Grossman 's formula, how did his ingredients come out of the bomb?
To maintain national security, Dr. Grossman o
made a detailed synopsis of the Japanese Kyoto Report and is mailing this synopsis to the U.S.A.E.C.,
Counsel, specifically pointing out each of Dr. Grossman's ingredients in the Fall Out, as shown by the Kyoto University tests.
For security reasons since this is the formula of the complete bomb it is not being mailed to this court.
9 Ibid.
Acting on these, assertions, the court remanded the matter to the Commission to afford Grossman the opportunity "to present his claim in full and to submit his evidence."
See 246 F.2d at 709.
From this background, I cannot understand how my colleagues find support for their position in the court's Grossman decision.
Because of the secrecy surrounding the development of the hydrogen bomb, there was no way for the court (or for that matter, anyone other than a few who were privy to such information) to judge the character of the new
information claimed by Grossman.
Moreover, the alleged in-formation could not be disproven on the basis of Grossman's statements alone.
In the circumstances, I find no special lesson to be learned from the court's decision.
If the ruling of my colleagues is correct, that it is neces-sitated by our intervention rule, I can only second the obser-vation made by the Dickensonian character Mr. Bumble:
If the law supposes that
. the law is a ass, a idiot.
Dickens, Oliver Twist.
I would pref er to believe the law to be otherwise.
Fortunately, my colleagues do not necessarily have the last word for the possibility of Commission review is still open. I am convinced that if the decision here is allowed to stand, the," reasonable specificity" provision of Section 2.714(b) of our intervention rule will become meaningless and the process necessary to fashion meaningful contentions 5/
for trial turned into a charade.-~
5/ My colleagues note in Part II of the principal opinion that the Licensing Board rejected the biomass contention on the single ground that the petitioner offered no justifi-cation for his assertion of the environmental superi-ority of the marine biomass farm alternative.
But as we have held before, we have the authority to uphold a decision of a licensing board on independent grounds.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 42 (1977), affirmed, CLI-78-1, 7 NRC 1 (1978).
Such grounds clearly exist here.
- f (O c t.' 'g NUCLE AR REGULATORY COMMISSION 5$
'r ATOMIC S AFETY AND LICENSING APPEAL PANEL WASHINGTON, D.C. 20$$$
ll:/ij C May 2, 1980 MEMORANDUM FOR:
Leonard Bickwit General Counsel p
FROM:
Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal Panel
SUBJECT:
ALAB-590 (ALLENS CREEK)
On April 22, 1980, an Appeal Board issued a decision
( ALAB-5 9 0) on the appeal taken by F.
H. Potthoff, III, from the denial by the Licensing Board of his petition to inter-vene in the construction permit proceeding involving the proposed Allens Creek facility.
The ultimate issue on the appeal was whether, as framed, Mr. Potthoff's sixth con-tention should have been accepted by the Licensing Board as litigable.
Resolution of this issue involved, in turn, the application of 10 CFR 2.714 (b), which requires that a peti-tiener for intervention set forth the bases for each of his contentions "with reasonable specificity".
For the reasons set forth in our respective opinions, both Mr. Farrar and I determined that the requirements of Section 2.714 (b) had been satisfied and that Mr. Potthoff's intervention petition should have been granted on the strength of the contention in question.
On the other hand, for the reasons discussed in his dissenting opinion, Dr. Buck concluded that the contention was not entitled to admission to the pro-ceeding and, consequently, the Licensing Board correctly had denied the intervention petition.
ALAB-590 was served by mail on the date of its issuance and, therefore, any petition for review of it must be filed on or before May 12, 1980.
See 10 CFR 2.786 (b) (1), 2.710.
Whether either the applicant or the NRC staff (both of which had urged affirmance of the denial of the petition) will seek Commission revi'ew remains to be seen.
In the event that they do not, the Commission can, of course, nonetheless elect to review ALAB-590 on its own motion.
1
'o a
9 Memorandum for Leonard Bickwit May 2, 1980 4
At the conclusion of his dissenting opinion, Dr. Buck took note of the possibility of Commission review and, at least by implication, suggested that it was warranted.
He has now asked that I transmit to the Commission, through your office, his formal request that such review be undertaken.
While recognizing the unusual nature of a request of this kind on the part of an Appeal Board member, he believes that there exist here sufficiently extraordinary circumstances to justify it.
Most particularly, as he sees it:
The decision of the Appeal Board majority is not only in error but also, because of its likely substantial precedential effect, can be expected to have a significant and in-tolerable impact upon the conduct of future licensing proceedings.
Beyond that, the majority decision is not simply a reaffir-mation and application of principles which had been laid down in prior appeal board decisions.
Rather, as indicated in the dissenting opinion, ALAB-590 effects a marked extension of the holdings in those decisions.
Whether or not these views were ultimately to prevail, there is every reason why the Commission itself should undertake to address the controversy on the ground that it involves an important ques-tion of law within the meaning of 10 CFR
- 2. 7 8 6 (b) (1).
It wculd be both presumptuous and inappropriate for the members of the Appeal Board majority to take a position re-garding whether their decision should be further reviewed by the Commission.
In response to the foregoing, I confine my-self to noting that, although a proper reading of Section
- 2. 714 (b) undeniably is of considerable present and future importance, I do not subscribe to Dr. Buck's thinking re-i specting the merits of what was held in ALAB-590.
In this connection, I adhere to the view that ALAB-590 does no more than to reaffirm a well-settled and sensible interpretation of Section 2.714 (b) (which dates back to at least 1973).
To this point, that interpretation seemingly has not, in practice, had mischievous consequences and I perceive no cause to think that it will in the future.
l l
s,,
l o
Memorandum for Leonard Bickwit 3.-
May 2, 1980 1
I will appreciate it if copies of this memorandum are furnished to the Commission in connection with the transmission of the OGC's own recommendation respecting further review.
A copy of it is being sent to the Docketing and Service Branch with the request that it be served on the parties to the pro-ceeding and incorporated in the docket.*
Mr. Parrar is content to rest upon what was said in ALAB-590, and thus his views are not necessarily reflected in this memorandum.
y