ML20039B572
| ML20039B572 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 12/15/1981 |
| From: | Raskin D HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-CP, NUDOCS 8112230251 | |
| Download: ML20039B572 (13) | |
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' NUCLEAR REGULATORY COMMISSIONgj ggg pj 4g 5g -
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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Docket No. 50-466JCP.
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HOUSTON LIGHTING AND POWER COMPANY )
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(Allens Creek Nuclear Generating- )-
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APPLICANT'S RESPONSE TO ROBERT 4 PCEj '
O N2 ALEXANDER'S UNTIMELY PETITION FOR LEAVE TO INTERVENE D'fg0 1 9 87-Q8/AL I.- Ci
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Applicant files this response to the untimely Petit
- For Leave To Intervene filed by Robert Alexander on November 30, 1981, which seeks' admission of a contention relating to Applicant's financial qualifications. The instant Petition is not the first time Mr. Alexander has attempted to intervene in this proceeding. On October 18, 1979,.he filed another late petition which was denied by the Licensing Board upon
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a balancing of the factors which govern the disposition of-late intervention petitions. 10'C.F.R. S 2.714 (a) (1) .-*/ The Licensing Board's ruling was subsequently upheld by.the Appeal
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Now, two years later and over three years after the filing deadline, Mr. Alexander again seeks admission as a party. -As
- / Licensing Board Order dated November 20, 1979.
-**/ Houston. Lighting &' Power Co. (Allens Creek Nuclear Generating Station), ALAB-58 2, 11 NRC 2' ' (1980). 3 I
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,' shown in~Part II of this Response, his current Petition, filed almost at the conclusion of-evidentiary hearings, does not
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provide the strong grounds necessary to reopen the record' on financial qualifications. In. addition, as shown in Part III, Petitioner has utterly failed to make the showing required under 10 C.F.R. 5 2. 714 (a) for intervention at this extraordinarily late date. Accordingly, his Petition should be rejected by the-Board.
II.
Petitioner's request entails what he describes as a "new contention" as to whether there is reasonable assurance that Applicant can obtain the-necessary funds to construct and operate ACNGS. However, as the Board is well aware, the issue of Applicant's financial qualifications is an admitted conten-tion in this proceeding (Baker Consolidated Contention 1) on which discovery was conducted,-and extensive testimony pre-sented at the evidentiary hearing. Thus, for. Alexander's petition can only be construed as a motion to reopen the record on financial qualifications filed by a non-party to this proceeding who is unhappy with-the record made by the existing parties.
Leaving aside the question of whether Mr. Alexander should be allowed to intervene based on the factors set forth in S 2.714 (a) , Mr. Alexander has failed to demonstrate why . the the record should be reopened on this issue. A party who
s-4 desires that the record be reopened must-show that newly available information outweighs the recognized need for administrative finality. The Appeal Board has more than once noted the. Supreme Court's statement in ICC v. Jersey City that:
[O]ne of the grounds of resistance to administrative orders throughout federal experience with the administrative pro-cess has been the claims of private liti-gants to be entitled to rehearings to bring the record up to date and meanwhile to stall the enforcement of the administra-tive order. Administrative consideration of evidence . . . always creates a gap between the time the record is closed and the time the administrative version is promulgated . . . . If upon the ccming down of'the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.
322 U.S. 503, 514 (1944), cited in Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619 (1976);
Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-227, 6 AEC 416 (1974). For this reason the record will not be reopened in NRC proceedings absent a strong reason for doing so. See, Vermont Yankee Nuclear Power Corpora-tion (Vermont Yankee Nuclear Power Plant), ALAB-138, 6 AEC'520, 523 (1973). In particular, the movant must present facts suffi-cient to demonstrate that the outcome of the proceeding might be affected. Public Service Company of New Hampshire
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, (Seabrook Station, Units 1. and 2) , . ALAB-422, 6 NRC 33, 64 n.35 (1977) citing Vermont Yankee, supra. Further, the movant must demonstrate that: the new information upon which he relies is of major. environmental or safety significance. Vermont Yankee, supra; Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 804 (1979).
Mr. Alexander's Petition does not even approach such a showing. The sole basis for his late-filed Petition is a recent change in the Applicant's bond-rating to single A by Standard & Poors. This, he states, " casts doubt upon Applicant's-scenario for raising funds necessary to meet its ambitious con-struction plans." However, the Petition provides no basis for believing that this fact might alter the result on the financial qualifications issue. Mr. Alexander ignores the testimony already presented in this proceeding which demonstrates that the ability to finance construction of the ACNGS is dependent upon a large number of factors. The testimony shows'that a very important factor is the receipt of timely rate relief from the Texas P.U.C. (Testimony of Hollis Dean, ff. Tr. 16,723, at 8-9). -*/ Other factors include a healthy _ econ rv and a
-*/ In a recent proposed rulemaking, in which the Commission-anticipates deleting the financial qualifications issue from all CP proceedings, the Commission expresses the view that the ratemaking process is the overriding factor _in assessing an Applicant's financial qualifications to con-struct a facility. (46 Fed. Reg. 41,786, 41,788 (August 18, 1981).
- sufficient return on common equity; none of which.are affected by Standard & Poor's action. In fact, the testimony already addresses the impact of an earlier derating of Applicant's bonds by Moody's, and Mr. Alexander's Petition does not even attempt to explain why this more recent action raises implications different from those already testified to in this
-l proceeding. (Tr. 16,724-28).-*/ The testimony also already compares HL&P to other single A rated utilities and shows that the Company compares very favorably. (Dean at 6-7). 'In addition, that testimony states that there are many utilities A rated and below which are successfully constructing nuclear plants at the present time. (Dean at 7). Thus, his exaggerated assertion that "the matter of financial qualifications has now been largely invalidated" is not only without support in his pleading, but is contradicted by the testimony already presented in this proceeding.
Mr. Alexander harbors a fundamental misconception con-cerning a request to reopen the record. He states that.the
" Applicant must shoulder its burden" and present further testimony addressing the change in bond rating. In fact, he i
- / As discussed below, it is extremely important to note that Mr. Alexander did not petition to intervene ~at the time of the earlier derating by Moody's. Instead, he-waited until such time.as his intervention would have the most significant effect on the timely completion of this pro-ceeding. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Plant), ALAB-138, 6 AEC 520, 523 (1973).
must carry his burden of demonstrating that important'and
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potentially determinative facts affecting the safety of this facility now exist. Vermont Yankee, supra; Black Fox,
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supra. This he has failed to do.-
III.
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Even apart from Mr. Alexander's failure to justify re-litigating financial qualifications after the record has been
. closed, a balancing of the factors governing admission of late-filed petitions to intervene demonstrates that'his untimely Petition should be denied.
Mr. Alexander's Petition represents an apparent attempt to delay this proceeding and raises fundamental questions of
- / Indeed, in light of the Commission's proposal to eliminate the financial qualifications requirement, Applicant doubts whether anything but the most compelling showing involving financial qualifications would justify. reopening the record at this~ stage. As'the Commission stated:
experience has failed.to show a clear relationship between the NRC's review of an applicant's financial qualifica-tions and the applicant's ability to safely construct and operate a nuclear power plant . . . . . [S]uch utilities-are usually regulated by state'and/or federal regulatory agencies, and generally recover the costs of construct-ing facilities through the ratemaking process . . . .
46 Fed. Reg. at 41,788. Whether any such issue could rise to the level of a major environmental or-safety' concern is therefore questionable at best.
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fairness to the litigants. The Petition comes after siveral
_ years of prehearing activities and nearly a year of evidentiary hearings at which the parties have addressed approximately 80 separate issues, including the one now raised in this Petition.
Granting the Petition at this late date would add extensive 1
delay to this already lengthy process. The Appeal Board '
recently emphasized that strong public policy grounds oppose the granting of a petition to intervene filed shortly before the commencement of evidentiary hearings, since by that late date:
. . . the applicants and the. staff had every right to assume that both the issues to be litigated and the participants had been established with finality. . Simple fairness to them--to say nothing of the public interest requirement that NRC licens-ing proceedings be conducted in an orderly fashion--demanded that the Board be very chary in allowing one who had slept on its rights to inject itself and new claims into the case as last minute trial. preparations were underway.
South Carolina Electric & Gas Company (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 886 (1981). The same reasoning applies in even greater force where, as here, the petition comes after the hearing has been completed.
(i) Good-Cause.
Petitioner relies upon the recent notice of derating in Standard & Poors as good cause for his tardy filing. However, he does not justify his prior failure to raise the financial qualifications issue, either in his first Petition to Intervene
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y . or at any intervening date, and he fails-to explain why he
- did not raise this precise concern inl1980 when Applicant's
-bonds were derated by Moody's. Instead, Mr. Alexander has remained silent on this issue until the very eve of closing the record when his intervention will have the most significant effect on the timely completion of this proceeding. Having so waited, his assertion of good cause has a very hollow ring, and should be rejected by the Board.
(ii) Availability of Other Means Whereby His Interest Will Be Protected.
In Applicant's view this factor must be_ assessed in light of the extensive hearings already completed on the financial qualifications issue. The gravamen of Ec. Alexander's filing is that he is not satisfied with the way in which.
the existing intervenors have litigated this issue in his absence. Now, after 2-1/2 years, he expects the Board to grant him an independent opportunity to add to the record.
Moreover, although resort to this Board may be the means for Petitioner to protect whatever interest remains at this time, the Board must evaluate the extent to which Petitioner has demonstrated a sincere concern regarding the outcome of this issue. Petitioner's failure to raise the issue of bond de-rating when it first arose in 1980 rather than waiting until all evidentiary proceedings had been terminated, raises sub-stantial doubt as to the legitimacy of Petitioner's concern.
3; l (iii) .. Assistance In.The Development Of A Sound Record.
In his~first Petition to Intervene Mr. Alexander' asserted.that-he was a " law-abiding 1 teacher" who was an "ex-pert at expressing [himself]" and whose " participation will further enhance these proceedings due to [his] familiarity
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with the Davis-Bessee nuclear plant'. . . . In affirming the Licensing Board's denial of the Petition, the Appeal Board stated 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
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evidentiary record . . . - . Mr. Alexander's new Petition practically repeats this insufficient averment. He now asserts -
that he is "an articulate school' teacher fairly knowledgeable with the mechanics of corporate financing ~and with the dynamics
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of securities." As ruled earlier, such a general' statement-does not demonstrate Petitioner's ability to contribute t.
, to this proceeding, particularly in a specialized field such as utility finance.
Petitioner also states that he " expects" to call at least'
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one " brokerage house expert" to testify. The expectation
- / Petition For Leave To Intervene, October 18, 1979 at 1.
- / ALAB-582, 11 NRC at 244.
- / Petition For Leave To Intervene, November 30, 1981 at 2.
- / _Id
that Petitioner may call an unidentified " brokerage house expert" is unenlightening and certainly does not buttress a petition. filed at such a late date. Petitioner-has failed to identify whom he intends to call and to provide sufficient information-regarding the qualifications of such person to permit'the Board to render an informed judgment on whether the record will be enhanced by that witness's testimony.
The fact that he might provide testimony from individuals who work for a " brokerage firm" does not demonstrate that they are expert in the specialized field of utility financing.
Petitioner has also failed, except in the most general terms, to describe what his " expert's" testimony will be. Summer, 13 NRC 881, 891-94; see also, Cincinnati Gas and Electric Cc[. (William H. Zimmer Nuclear Station), LBP-80-24, 12 NRC 231, 239 (1980). In short, Petitioner has provided no basis upon which the Board can conclude that he can reasonably be expected to assist in developing the record.
(iv) Extent To Which Petitioner's Interest Will Be Represented By The Existing Parties.
The existing intervenors have thoroughly litigated the Applicant's financial qualifications. The variability of bond ratings and their potential impact upon construction financ-
~ing have been considered. Mr. Alexander has made no showing that the existing intervenors have failed to address his concern.
Coming after the termination of this proceeding his Petition should be required to address the record to show that his in-terest has not been adequately represented to date.
. 4 (v) Delay.
As amply discussed above, the' admission of a new intervenor at this time will substantially delay the completion of'this proceeding. This factor must weigh very heavily against admission of Mr. Alexander as an intervenor at this time. See, Detroit Edison Company (Greenwood Energy Center, Units 2 and 3), ALAB-476, 7 NRC 759 '(1978); Summer, ALAB-642, supra.
CONCLUSION For all of the foregoing reasons Applicant requests that the Board deny Mr. Alexander's untimely Petition to Intervene.
Respectfully submitted, OF COUNSEL:
Jack 1R. Newman
. LOWENSTEIN, NEWMAN, REIS & Robert H. Culp AXELRAD David B. Raskin 1025 Connecticut Ave., N.W. 1025 Connecticut Avenue, N.W.
Washington, D.C. 20036 Washington, D.C. 20036 BAKER & BOTTS J. Gregory Copeland 3000 One Shell Plaza Scott E. Rozzell Houston, Texas 77002 3000 One Shell Plaza Houston, Texas 77002 ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER COMPANY
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING-BOARD
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In the Matter of )
)
HOUSTON LIGHTING & POWER COMPANY ) Docket No. 50-466
)
(Allens Creek Nuclear Generating )
Station, Unit 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANT'S RESPONSE TO ROBERT ALEXANDER'S UNTIMELY PETITION FOR LEAVE TO INTERVENE were served on the following by deposit in the United States mail, postage prepaid, this 15th day of December, 1981:
Sheldon J. Wolfe, Esq., Chairman Susan Plettman, Esq.
Atomic Safety and Licensing David Preister, Esq.
Board Panel Texas Attorney General's U.S. Nuclear Regulatory Commission Office Washington, D.C. 20555 P. O. Box 12548 Capitol Station Dr. E. Leonard Cheatum Austin, Texas 78711 Route 3, Box 350A Watkinsville, Georgia 30677 Honorable Frank Petter Mayor, City of Wallis Mr. Gustave A. Linenberger P. O. Box 312 Atomic Safety and Licensing Wallis, Texas 77485 Board Panel U.S. Nuclear Regulatory Commission Hon. Leroy H. Grebe Washington, D.C. 20555 County Judge, Austin County P. O. Box 99 Chase R. Stephens Bellville, Texas 77418 Docketing and Service Section Office of the Secretary of Atomic Safety and Licensing the Commission Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commissior Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555
4 Richard Black, Esq. James M. Scott, Jr.
U.S. Nuclear Regulatory 13935 Ivy Mount Commission Sugar Land, Texas 77478 Washington, D.C. 20555 William Schuessler John F. Doherty 5810 Darnell 4327 Alconbury Street Houston, Texas -77074 Houston, Texas 77021 Stephen A. Doggett, Esq.
TexPirg P. O. Box 592 Att: Clarence Johnson Rosenberg, Texas 77471 Executive Director Box 237 U.S. Bryan L. Baker University of Houston 1923 Hawthorne '
Houston, Texas 77004 Houston, Texas 77098 Carro Hinderstein J. Morgan Bishop 609 Fannin Street Margaret Bishop Suite 521 11418 Oak Spring Houston, Texas 77002 Houston, Texas 77043 D. Marrack W. Matthew Perrenod 420 Mulberry Lane 4070 Merrick BL11 aire, Texas 77401 Houston, Texas 77024 Brenda McCorkle Wayne ~Rentfro 6140 Darnell P. O. Box 1335 Houston, Texas 77074 Rosenberg, Texas 77471 V. O. " Butch" Carden, Jr. Robert Alexander City Attorney 2030 Portsmouth Street #2 City of Wallis Houston, Texas 77098 P. O. Box A East Bernard, Texas 77435 A
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