ML19257C384

Response in Opposition to Petitioner R Alexander 791120 Appeal of ASLB Denial of Intervention.Grant of Discretionary Intervention Is Not Warranted Due to Failure of Petitioner to Provide Substantive Info.Certificate of Svc Encl

ML19257C384
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	01/18/1980
From:	Copeland J, Culp R BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8001290030
Download: ML19257C384 (12)

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UNITED STATES OF AMERICA y {1 s[ ^ i NUCLEAR REGULATORY COMMISSION .

"y p s x ]v,gg;,g BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD k Af N. /

In the Matter of )

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HOUSTON LIGHTING AND POWER COMPANY ) Docket No. 50-466

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(Allens Creek Nuclear Generating )

Station, Unit 1) )

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APPLICANT'S BRIEF IN OPPOSITION TO THE APPEAL OF ROBERT ALEXANDER Mr. Robert Alexander (petitioner) appeals from the November 20, 1979 ruling of the Atomic Safety and Licensing Board (ASLB or Licensing Board) which denied his untimely petition for leave to intervene. For the reasons discussed below, Applicant urges the Appeal Board to affirm the ruling of the Licensing Board.

I. Statement of Facts On May 31 and September 11, 1978, the Licensing Board issued notices of intervention procedures in this construction permit proceeding (43 Fed. Reg. 23666 and 40328) which provided the opportunity for persons to file petitions for leave to inter-vene based upon changes in the design of the proposed fa-cility or new evidence or information which became available after 1975. On June 12, 1979 the Licensing Board issued a

" Supplementary Notice of Intervention Procedures" which permitted petitions for leave to intervene to be filed by any person 183) 355 soousc og

who did not file a petition pursuant to the two earlier notices because of the unwarranted restrictions on permissible contentions contained in those notices. (44 Fed. Reg. 35062).

Robert Alexander filed an untimely petition for leave to intervene in this proceeding on October 18, 1979. In the petition, Mr. Alexander admitted that he had filed late and attempted to justify his late filing under 10'CFR S2.714(a).

In an Order dated November 20, 1979, the Licensing Board denied his petition on grounds that he had neither "particu-larized his interests in this proceeding" nor shown good cause for his late filing.

Petitioner filed an appeal on December 14, 1979, from the Licensing Board's November 20, 1979, Order, and because the Commission's Docketing and Service Branch had inadvertently failed to serve the November 20th Order on him, the Appeal Board grar.ted Mr. Alexander " leave to file a supplemental brief in support of his appeal" by January 4, 1980. Mr.

Alexander requested a further extension of time on January 3, 1980, to file a supplemental brief. This request was denied by the Appeal Board on January 8, 1980, but petitioner was provided the opportunity to submit a brief in reply to Staff and Applicant's briefs.

4 183t 556

II. The Licensing Board Properly Denied Petitioner Alexander's Untimely Petition to Intervene The question presented is whether the Licensing Board abused its discretion in denying the petitioner's untimely petition to intervene. */ Public Service Co. of Indiana, luc.

(Marble Hill Nuclear Generating Station, Units 1 and 2) ,

ALAB-339, 4 NRC 20, 24 (1976); Virginia Electric and Power Co. (North Anna Power Station Units 1 and 2), ALAB-342, 4 NRC 98, 107 (1976). There was no abuse of discretion here.

The Licensing Board correctly found that petitioner's justifica-tion for his late filing -- that he only recently moved into the area affected by the Allens Creek facility -- was not, under NRC precedent, a satisfactory showing of good cause.

As the Appeal Board stated in a recent case:

. . . If newly acquired standing. . . were sufficient of itself to justify permitting belated intervention, the necessary con-sequence would be that the parties to the proceeding would never be determined with certainty until the final curtain fell.

Assuredly, no adjudicatory process could be conducted in an orderly and expeditious manner if subjected to such a handicap.

• / While the petition was filed some three months after the deadline in the Supplementary Notice, it nevertheless must be considered one year late. In his petition, Mr. Alexander states that "Only as late as September have I taken up residence in Houston." Since he did not reside in the Houston area at the time the Licensing Board issued its two earlier notices in 1978, he could not properly petition pursuant to the Supplementary Notice because he was not inhibited by the restrictions in the Board's prior notices.

Therefore, the lateness of his petition to intervene must be viewed from the deadline for filing pursuant to the Licensing Board's notice of September 11, 1978. This deadline was October 11, 1978. -

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 (1979).

Second, petitioner made only a cursory attempt to discuss the other four factors in 10 CFR S2.714(a) used to justify late filed petitions. The Board noted specifically, that it was impossible to assess the sufficienc." of peti-tiener's showing under S2.714(a) because he h:d not "particu-larized his interests in this proceeding," (November 20 Order, p. 2). In fact, petitioner's October 18, 1979, filing did not, in any way, identify those interests.

Finally, the Licensing Board found that petitioner's filing did not provide sufficient grounds for granting discretionary intervention, since petitioner's statements (to the effect that he is a teacher and that he is familiar with the Davis-Besse plant) did not establish, without more detail, any basis for finding that he could make a valuable contribution to the development of a sound record. Public Service Co. of Oklahoma, et al. (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143 (1977); (November 20 Order, p.

2) .

Given the very skeletal nature of the petitioner's attempted justification of his late filing, his inability to demonstrate that he has any particular expertise or ex-perience that could assist the Board and parties in reaching a proper determination in this construction permit proceeding, and the petitioner's failure to even state in his petition the nature of his interest, the Board clearly did not abuse 183) 359

its discretion in denying Mr. Alexander's petition to intervene. Petitioner did not begin to carry the burden imposed upon him to justify a late filed petition or to obtain discretionary intervention.

III. Petitioner's Filings Before the Appeal Board Do Not Justify a Grant of Intervention In two nearly identical letters to the Appeal Board, dated December 14, 1979 and January 3, 1980, petitioner has provided a somewhat more particularized statement of his interest in this proceeding. These filings do not rectify the deficiencies in his earlier filings */ and, in fact, demonstrate that Mr. Alexander does not meet the Commission's requirements for intervention.

(a) Petitioner Does Not Have Standing to Intervene In This Proceeding The Commission has held that judicial concepts of standing are applicable to determine whether any individual may, as a matter of right, intervene in one of its licensing proceedings. Portland General Electric Co. (Pebble Springs

• / Applicant asserts that it is inappropriate for petitioner to submit on appeal, as he has done here, factual allega-tions in support of a late filed petition to intervene which were never made to the Licensing Board. To do so would interpose the Appeal Board in the role of the Licensing Board which has the initial responsibility to review a petitioner's pleadings and make a determi.tation of whether those pleadings justify a grant of intervention. In any case, the Appeal Board need not decide the issue since it is clear that Mr. Alexander's amended pleadin.gs before the Appeal Board do not support a grant of his petition to intervene.

Nuclear Plant, Units 1 and 2), CLI-76-27, 2 NRC 610 (1976).

Thus, in order to establish standing, a petitioner to inter-vene must allege both " injury in fact" from the proposed action and particularize an interest which is within the zone of interests protected by the Atomic Energy Act and/or NEPA. Id. Petitioner has failed to satisfy the first prong of the standing test.

In his two filings with the Appeal Board, Mr. Alexander states that his " main" interest in this proceeding is to protect his " future" investments in real estate in Houston's southwest side. Such assertion of possible harm is too speculative and remote to support a finding that petitioner will sustain injury in fact as a result of this proceeding. */

Exxon Nuclear Co. (Nuclear Fuel Recovery and Recycling Center), 6 NRC 518, 620 (1977). Patitioner's two latest filings are therefore no more specific on the question of interest than the October 18 pleading filed with the Licensing Board and accordingly, his amended petition should be rejected. **/

• / In addition, although the Appeal Board need not reach the

@testion in light of the speculative nature of petitioner's interest, petitioner alleges a potential economic harm with-out making any showing that such harm is environmentally re-lated, and thus such harm does not come within the zone of interests protected by NEPA. See Long Island Lighting Co.

(Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631, 638-40 (1977).

• • / Petitioner does refer to the distance of his family's residence from the proposed facility, but a person cannot acquire standing on the basis of the interests of a third party. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit No. 2) ALAB-470 7 NRC 473, 474, n. 1 (1978).

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(b) Petitioner Alexander's December 14, 1979 and January 3, 1980 Filings Do Not Satisfy Section 2.714(a) Requirements for Untimely Petitions to Intervene Petitioner's two letters to the Appeal Board do not offer any good cause for his untimely filings. Since he has failed to establish good cause, the Appeal Board must find a sufficient showing under the remaining four factors in S2.714(a) to overcome the extremely heavy burden imposed on such a petitioner by the Commission's rules of practice.

Nuclear Fuel Services, Inc., (West Valley Reprocessing Plant) , CLI-75-4, 1 NRC 273 (1975). Petitioner has failed to make such a showing here.

None of the remaining factors discussed by petitioner in his brief weigh in petitioner's favor. With respect to his contribution to a sound reco_d, petitioner fails either to describe in any detail, the extent of his familiarity with the Davis-Besse facility, or to explain how any alleged impacts at that facility might be related to the issues in the ACNGS proceeding. Similarly, petitioner makes no con-vincing case with respect to factors (iv) and (v). In paragraph 4 of his brief, petitioner refers to the absence of " partisan realtors and investors" in this proceeding, but makes no attempt to explain why property owners already admitted as parties to this proceeding cannot adequately represent his interests. These already admitted parties l

seek the same ultimate result in this proceeding as Mr.

Alexander; namely, denial of the construction permit applica-tion. Cf. Jamesport, supra, 2 NRC at 650. In paragraph 5, petitioner simply makes a conclusory assertion, without any supporting reasons, that his participation will neither broaden the issues nor delay the proceeding.

Petitioner's latest filings also do not present any additional information which would justify a finding that he is likely to make a substantia] contribution to this pro-ceeding. A grant of discretionary intervention is, there-fore, not warranted for the same reasons as stated above. */

• / Applicant has not addressed the three contentions sub-mitted to the Appeal Board for the first time. Suffice to say that all are conclusionary without a stated basis as required by S2.714(b).

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IV. Conclusion For the reasons discussed above, the Appeal Board should affirm the ruling of the Licensing Board denying Mr.

Alexander's untimely petition for leave to intervene.

Respectfully submitted, Tekt n.C4 Jack R. Newman Robert H. Culp David B. Raskin 1025 Connecticut Avenue, NW Washington, DC 20036 J. Gregory Copeland C. Thomas Biddle Charles G. Thrash, Jr.

3000 One Shell Plaza Houston, Texas 77002 ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER COMPANY OF COUNSEL:

LOWENSTEIN, NEWBULN , REIS, AXELRAD & TOLL 1025 Connecticut Avenue, NW Washington, DC 20036 BAKER AND BOTTS 3000 One Shell Plaza Houston, Texas 77002 1899-003

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of ) '

)

HOUSTON LIGHTING AND POWER COMPANY ) Docket No. 50-466

)

(Allens Creek Nuclear Generating )

Station, Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of Applicant's Brief in Opposition to the Appeal of Robert Alexander, in the above captioned proceeding, were served on the following by deposit in the United States mail, postage pre-paid, or by hand delivery this /f'N ay d of January, 1980:

Mr. Alan S. Rosenthal, ChTirman Mr. Gustave A. Linenberger Atomic Safety and Licensi'.g Atomic Safety and Licensing Appeal Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. John H. Buck Chase R. Stephens Atomic Safety and Licensing Docketing and Service Section Appeal Board Office of the Secretary of the U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Michael C. Farrar Atomic Safety and Licensing R. Gordo- " och, Esq.

Appeal Board Baker and ostts U.S. Nuclear Regulatory Commission 1701 Pennsylvania Avenue, NW Washington, DC 20555 Washington, DC 20006 Sheldon J. Wolfe, Esq., Chairman Richard Lowerre , Esq.

Atomic Safety and Licensing Assistant Attorney General Board Panel for the State of Texas U.S. Nuclear Regulatory Commission P. O. Box 12548 Washington, DC 20555 Capitnl Station Austin, Texas 78711 Dr. E. Leonard Cheatum Route 3, Box 350A Hon. Charles J. Dusek Watkinsville, Georgia Mayor, City of Wallis P. O. Box 312 Hon. Leroy H. Grebe Wallis, Texas 77485 County Judge, Austin County P. O. Box 99 Bellville, Texas 77418 1@2-004

Atomic Safety and Licensing Charles Perez Appeal Board 1014 Montrose Blvd.

U.R. Nuclear Regulatory Houston, Texas 77019 Commission Washington, DC 20555 Elinore P. Cumings Route 1, Box 138 V Atomic Safety and Licensing Rosenberg, Texas 77471 Board Panel U.S. Nuclear Regulatory William Schuessler Commission 5810 Darnell Washington, DC 20555 Houston, Texas 77074 Steve Schinki, Esq. Stephen A. Doggett, Esq.

Staff Counsel P. O. Box 592 U.S. Nuclear Regulatory Rosenberg, Texas 77471 Commission Washington, DC 20555 Bryan L. Baker 1118 Montrose John F. DohertY Houston, Texas 77019 4327 Alconbury Street Houston, Texas 77021 J. Morgan Bishop Margaret Bishop Madeline Bass Framson 11418 Oak Spring 4822 Waynesboro Drive Houston, Texas 77043 Houston , Te.xas 77035 Carolina Conn Robert S. Framson 1414 Scenic Ridge 4822 Waynesboro Drive Houston, Texas 77043 Houston, Texas 77035 L tis Johnston Carro Hinderstein 1 07 Scenic Ridge 8734 Link Terrace Houston, Texas 77043 Houston, Texas 77025 Robin Griffith D. Marrack 1034 Sally Ann 420 Mulberry Lane Rosenberg, Texas 77471 Bellaire, Texas 77401 W. Matthew Perrenod Brenda McCorkle 4070 Merrick 6140 Darnell Houston, Texas 77025 Houston, Texas 77074 Glen Van Slyke F. H. Potthoff, III 1739 Marshall 7200 Shady Villa, #110 Houston, Texas 77098 Houston, Texas 77080 Marlene R. Warner Wayne E. Rentfr 6026 Beaudry P. O. Box 1335 Houston, Texas 77035 Rosenberg, Texas 77471 o emary N. Lemmer James M. Scott, Jr. 11423 Oak Spring 8302 Albacore " "* "' " *

• Houston, Texas 77074 Ift24L 005

Connie Wilson 11427 Oak Spring Houston, Texas 77043 Ron Waters 3620 Washington Avenue No. 362 Houston, Texas 77007 TexPIRG Att: Clarence Johnson Executive Director Box 237 U.C.

University of Houston Houston, Texas 77004

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