ML19305B098
| ML19305B098 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 02/22/1980 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-582, NUDOCS 8003190151 | |
| Download: ML19305B098 (10) | |
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FEU 25'Is@1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S. Rosenthal, Chairman
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Dr. John H. Buck f.
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In the Matter of
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HOUSTON LIGHTING & POWER COMPANY
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Docket No. 50-466
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(Allens Creek Nuclear Generating
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Station, Unit 1)
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Mr. Robert Alexander, Houston, Texas, appellant pro se.
Messrs. Jack R. Newman, Robert H. Culp and David B.
Raskin, Washington, D.C.,
and Messrs. J.
Gregory Copeland, C. Thomas Biddle, Jr., and Charles G.
T.hrash, Jr.,
Houston, Texas, for the applicant, Houston Lighting and Power Company.
Mr. Stephen M.
Schinki for the Nuclear i
Regulatory Commission staff.
DECISION j
February 22, 1980
( ALAB-582)
- 1.. We are here ' confronted with~another appeal' taken under 10 CFR 2.714a from the denial of a petition for, leave to inter-vene in this construction permit proceeding involving the 8003190151 l
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Allens Creek facility.
See ALAB-574, 11 NRC (January 10, 1980).
The appellant now before us is Robert Alexander.
His intervention petition, in the form of a one-page letter, was filed on October 18, 1979.
Whether the applicable filing deadline is deemed to have been October 11, 1978 or, instead, July 18, 1979,- / the petition was untimely.
Mr. Alexander explicitly conceded as much.
In summary fash-ion, however, his petition addressed each of the five specific fac-tors which, by virtue of 10 CFR 2.714 (a), are to be considered by a 2
licensing board in deciding whether to accept a late petition.- /
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The October 1978 deadline was established in an amended
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" Notice of Intervention Procedures", published on Septem-ber 11, 1978.
See 43 Fed. Reg. 40328.
On June 18, 1979, the Licensing Board published a supplementary notice ad-dressed to persons who had failed earlier to seek interven-tion because of certain restrictions in the 1978 notice.
Any such person was given until July 18, 1979 to file a petition.
See 44 Fed. Reg. 35062, discussed in ALAB-574, supra, 11 NRC at As will be seen, Mr. Alexander's inaction prior to October 1979 was not due to the restric-tions in the 1978 notice.
Thus, he IIkely is not entitled to the benefit of the provisions of the supplementary June 1979 notice.
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Those factors are:
(i)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the peti-tioner's interest will be protected.
(iii)
The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv)
The extent to which the petitioner's interest will be represented by existing parties.
(v)
The extent to which the petiti^ner's participation will broaden the issues or delay the proceeding.
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More particularly, he asserted that:
(1) My participation alone will safeguard my interests.
I do not trust my interests with other parties.
(2) I am a law-abiding teacher with the Houston Independent School District.
I am expert at expressing myself on paper and orally.
My participation will further enhance these pro-ceedings due to my familiarity with the Davis-Bessie [ sic] nuclear plant in Northwest Ohio.
(Only as late as September have I taken up residence in Houston.)
(3) I feel that without my participation, some (or not all) of my interests will be fully'and acurately (sic] represented by the existing parties.
I have a responsibility to my wife and future children to provide a safe environ-ment for them.
(4) I assure you that my participation will not broaden the basic issue. I will ask for no delays in the proceedings.
In an order entered on November 20, 1979, the Licensing Board held that these averments were not enough to warrant acceptance of the late petition.
With respect to Mr. Alexander's representation that he had just become a resident of Houston, the Board pointed to our ruling a year ago that " newly acquired stand-ing [is not] sufficient of itself to justify permitting belated i
intervention."
Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 (1979).
For this reason, the Board viewed the question to be "whether the
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\\ four other f actors set forth in Section 2.714 (a) weigh suffi-ciently in petitioner's favor to overcome the absence of a satisfactory excuse for the lateness".
Order, p.
2.
But it found itself " unable to assess these other factors because the petitioner has not particularized his interests in this pro-ceeding".
Ibid.
Beyond that, it regarded Mr. Alexander's assertion that he is an articulate teacher possessing famil-iarity with the Davis-Besse plant as, at least absent further detail, constituting an inadequate demonstration that he is equipped to make a valuable contribution to the development of a sound record on either safety or environmental issues.
Ibid.
2.
Before us, Mr. Alexander does not purport to contest the Licensing Board's conclusion that the papers filed with it were inadequate.
Rather, in the seeming belief that, by taking an appeal, he now enjoys the right to cure the " deficiencies of his initial filing and further clarify his need to intervene in these proceedings", Mr. Alexander has undertaken to supplement the factual content of his intervention peti-tion.
That belief is, of course, entirely mistaken.
The Licensing Board's ruling on his intervention petition was neces-sarily based on the record before it.
Consequently, we wquid scarcely be justified in overturning the ruling on the strength
-J of new assertions of f act which could have been, but were 'not, either included in the petition or otherwise presented to the Board below. 3 /
That consideration to one side, however, it is evident that the new assertions do not assist Mr. Alexander's cause.
This is so whether our focus is upon what was said in his December 14, 1979 brief4/ or, rather, upon the quite dif-ferent representations found in a reply.brief filed (with our leaved'/) on February 10, 1980.
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In his December brief, Mr. Alexander told us that he a.
resides approximately 26 miles from the Allena Creek site and that his " main interest in these proceedings is manifested by his plans for future investment of nearly $120,000 in [ Houston]
real estate by 1983" -- an investment which, he claims, might be diminished in value over the course of time because of the nearby presence of a nuclear plant.
But the mere possibility jl/
See, in this connection, ALAB-574, supra, 11 NRC at fn. 9.
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The representations in that brief were repeated verbatim in a supplemental brief filed on January 3, 1980.
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9, infra.
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'. that he may at some future date acquire real estate in the Houston area provides too conjectural a reed upon which to base a tardy intervention endeavor. 6/
Moreover, it is now settled that an interest which is purely economic in character does not confer standing to intervene under the Atomic Energy Act; nor is threatened economic harm sufficient to invoke the National Environmental Policy Act unless (as is not alleged here) that harm "will or may be occasioned by the impact that the Federal action under consideration would or might have upon the environment".
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1420-21 (1977).
The situation is not altered by Mr. Alexander's further averment in his brief that "[hle dealt intimately with the impact the Davis-Besse (Ohio) plant had upon the environment and particularly the economic conditions with regard to real estate values in that area surrounding the plant".
Without
--6/ 'In this connection, it would appear that Mr. Alexander can adequately protect himself from economic injury by either (1) not purchasing property in the vicinity of the facility or (2) negotiating with prospective sellers on the basis of his hypothesis regarding the effect that the facility will have on property values.
In short, he is not in the same position as one whose property was acquired before the proposal to build the Allens Creek facility first surfaced.
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7-far more specification than that, it is not possible to form any judgment upon the warrant for his insistence that
"[t]his knowledgeability can surely aid these proceedings".
Among other things, there has been no explanation forthcoming as to why any information he may have acquired respecting the economic impact of the Davis-Besse facility upon its surround-ing area would be of relevance to the appraisal of another facility to be located in an entirely different section of the United States.
In this connection, a number of owners of property in the Houston area have already been admitted to the proceeding as intervenors.1-/
Mr. Alexander assigns no good reason for assuming that those individuals are less well-informed than is he regarding the socio-economic effects that the plant might have upon that area.
We are left equally in the dark as to why those intervenors cannot adequately repre-sent any cognizable interest which he may have in the preserva-tion of local property values.
(Mr. Alexander is, of course, I
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We understand that the intervention petitions of some 20 organizations and individuals have been granted and that still others await Licensing Board action.
It is reasonable to suppose that a large majority of these petitioners have already or will eventually put forth
.at least one acceptable contention in the supplement to their petition required by 10 CFR 2.7.14 (b).
Accordingly, there are likely to be many more intervenor participants here than there have been in most other proceedings.
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4 t free to offer his assistance to them.)8_/
b.
For its part, Mr. Alexander's recently-filed " reply" brief 1/ is devoid of any reference to his investment plans or to anything else which was stated in his earlier brief by way of a particularization of his claimed interest in the proceed-ing.
Rather, in a sharp change of direction, the petitioner
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We have not overlooked Mr. Alexander's additional new allegations in the December brief that the facility "will irreparably violate the natural aesthetics of the area" and give rise to " inordinate and unconstitu-tional electric rate hikes".
Suffice it to say that no basis is given for the first of these claims', let alone a particularization as to how (living at a dis-tance of 26 miles from the site) he would be adversely affected by the aesthetic impact of the facility.
In-sofar as the second claim is concerned, the Commission has squarely held that status as a ratepayer does not confer standing to intervene in its licensing proceed-ings.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614 (1976).
In any event, the record contains nothing to suggest that Mr. Alexander would be able to contrib-ute significantly to the development of a sound record on either of these matters.
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In actuality, the brief does not consist of a reply to the briefs of the applicant and the staff.
Rather, it can be fairly regarded only as a second supplemental brief (see fn. 4 supra).
On January 8, 1980, we ex-plicitly denied Mr. Alexander's motion to file such a brief (although in the same order we granted him leave to respond to the briefs of his adversaries).
That we have chosen to consider the content of what Mr. Alexander has just put before us should not be taken as tacit ap-proval of this essentially unauthorized filing.
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now identifies his principal interest as being the protection of the physical and mental "well-being of himself and his family".
He opines that, if the Allens Creek facility is built, he and the other members of his family will live under a " constant shadow of uncertainty" respecting the safety of plant operation.
And, he insists, only his " participation in this proceeding can insure that those doubts are thoroughly espoused".
The obvious difficulty with this markedly different ap-proach is that Mr. Alexander has offered nothing beyond his bare assertion which might lead us to believe that he would be able to make a significant contribution to the development of an evidentiary record on one or more safety issues.
Nor has he endeavored to explain -,as he must do to support his inexcusably late petition -- why his concerns regarding safe plant operation differ in any material respect from those of the numerous other residents of the area who have already been admitted to the proceeding as intervenors.
Needless to say, there is no reason why it should be presumed that those indi-viduals are any less interested in -- and thus are any less
' inclined to raise -- the questions which Mr. Alexander main-tains he alone might be expected to pursue.
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t In sum,- even accepting at face value everything that Mr. Alexander has sought to inject into the record for the first time on the appeal, we are constrained to conclude that his demonstration on the five factors listed in Sec-tion 2.714 (a) falls far short of what would be required to overturn the denial of his untimely petition.10 /
Accord-ingly, the Licensing Board's November 20, 1979 order must be, and hereby is, affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD
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C. J$n Bishop Secretary to the Appeal Board 10 /
While it may be that Mr. Alexander's participation would
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not broaden the issues or occasion delay, that factor is not dispositive.
Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 798 (1977).
In this instance, it cannot overcome the extreme weakness of the showing made on the other factors.
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