ML20039G043
| ML20039G043 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 01/12/1982 |
| From: | Wolfe S Atomic Safety and Licensing Board Panel |
| To: | Ryan Alexander HOUSTON, TX |
| References | |
| ISSUANCES-CP, NUDOCS 8201150214 | |
| Download: ML20039G043 (6) | |
Text
'.
ODCXETED U9nc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'82 JAll12 P2:14 ATOMIC SAFETY AND LICENSING BOARD
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Rf.N Before Administrative Judges:
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' 2 Sheldon J. Wolfe, Chairman
'/ M J A M 1 0 g gg, p M 9"
Dr. E. Leonard Cheatum sums #
Gustave A. Linenberger, Jr.
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In the Matter of
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)
HOUSTON LIGHTING AND POWER COMPANY )
Docket No. 50-466-CP
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( Allens Creek Nuclear Generating
)
January 12, 1982 Station, Unit 1)
)
)
MEMORANDUM AND ORDER (Denying The Alexander Petition For Leave To Intervene)
MEMORANDUM l
On November 30, 1981, Robert Alexa'nder, representing that he is a citizen of Houston, Texas, filed a Petition For Leave To Intervene.
The Applicant and the NRC Staff respectively filed opposing responses on December 15 and December 17, 1981.
Mr. Alexander asserts that he has the requisite standing because, in residing within fifty (50) miles of the proposed Allens Creek facility, he may be injured by harmful radiation. Citing a newspaper article in the November 26, 1981 edition of the Houston Post which purportedly reflects that Applicant's bond rating has very recently been down-graded from AA to A by Standard and Poor, Mr. Alexander in substance contends that he has a personal interest 0 50 9201150214 820112 N
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h1 the outcome of this proceeding because Applicant might not con-struct and operate the nuclear facility in a safe manner if it does not possess or have reasonable assurance of obtaining the necessary funding. We deem that Mr. Alexander has met the tests for standing required to be shown by 10 C.F.R. @ 2.714(a)(2). Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), C'.1-76-27, 1
4 NRC 610 (1976).
However, in ad'dition, pursuant to 10 C.F.R. 6 2.714(a)(1), we must balance the following five factors to determine whether the belated petition should be granted:
(i)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the petitioner'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 petitioner's participation will
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broaden the issues or delay the proceeding.
With respect to the first factor, Mr. Alexander specifically acknowl-edges, as indeed he must, that his filing is untimely.
On June 18, 1979, this Board had published a " Supplemental Notice of Intervention Procedures" (44 Fed. Reg. 35062), which stated that petitions for leave to intervene should be filed by July 18,1979.M Thus, the
-1/ On October 18, 1979, Mr. Alexander filed a belated petition, which we denied as untimely in our unpublished Order of November 20, 1979. Our Order was affirmed by the Appeal Board, ALAB-582, 11 NRC 239 (1980).
Mr. Alexander made a limited appearance state-ment on January 15, 1981 (Tr. 2219-2326). Neither in his belated petition nor in his limited appearance statement did he advert to or question Applicant's financial qualifications.
instant petition was filed twenty-eight months after the prescribed due date and was filed after eighty-four days of evidentiary hearings had been held 2/ Mr. Alexander asserts that he could not have petitioned any earlier than he did because the newspaper article upon the Standard Poor derating action was not published until November 26, I
1981.
We conclude that he has f ailed to establish good cause for failure to file on time.
Several intervening individuals and groups (namely Baker, Cumings, TexPirg, Doggett and Perrenod) had timely petitioned for leave to intervene and timely submitted contentions (later consolidated) upon the issue of financial qualifications.
See Order (unpublished) of March 10, 1980.
It cannot be seriously contended that the newspaper article opened the door for the first time to the exploration of Applicant's ability to raise funds necessary for construction.
Accord,- Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-431, 6 NRC 460, 463 (1977). We have, for example, heard testimony (Dean, fol. Tr.16723, at pp. 6-7) that f avorably compares Applicant to other utilities rated A by Moody's Investors Services, Inc. and that states there are many utilities, A rated and below, which are currently constructing nuclear plants. At this very late date and in light of his alleged review of the record, 1
-~2/ While the Board closed the record in this proceeding on December 9, 1981. we do not reach and decide whether this late-filed petition should be considered as a motion to reopen the record.
i
4-Mr. Alexander cannot be heard to argue barrenly that "The testimony offered previously on the matter of financial qualifications has now been largely invalidated by the S&P action." (Pet., p. 2).
The second factor must be weighed against the Petitioner.
Mr. Alexander states he knows of no other means whereby his interests will be protected and implicitly justifies his protracted inaction by suggesting that it was n,ot until the newspaper article appeared that he reached the conclusion that his interests were not being adequately protected by any of the participants. Such a suggestion will not carry the day since, in failing to timely petition for leave to intervene, he assumed the risk that these intervening parties would not fulfill his expectations.
Accord, Duke Power Company (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642, 645 (1979).
The third factor must be weighed adversely to the Petitioner.
Petitioner asserts that he "is an articulate school teacher fairly knowledgeable with the mechanics of corporate financing and with the dynamics of securities."
In affirming our denial of his earlier petition for leave to intervene, in ALAB-582, 11 NRC at 244, 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 evidentiary record...."
The same conclusion must be drawn with regard to the barren assertion in his second untimely petition for leave to intervene.
Further, while the Petitioner asserts that he " expects to present at least one brokerage house expert who will testify on the
. impact of S&P's action upon Applicant's financial plans", at this late date something more concrete than an expectation should have been voiced and tir. Alexander should have identified who his witness would be, described the witness's qualifications and, at least, told us in some detail about the substance of the proposed testimony.
Without far more particularization of his own experience and knowledge and absent a conmitment from a brokerage house witness, whose qualifications and possible testimony had been setailed, we are unable to discern any basis for concluding either that Mr. Alexander's participation as a cross-examiner would be imperative to the development of a sound record or that his pcL2ntial witness could reasonably be expected to assist in developing the record. Accord, South Carolina Electric and Gas Company, et. al. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642,13 NRC 881, 893-894 (1981).
The fourth factor also must be weighed against the Petitioner.
As discussed above with respect to factors one and two, testimony has been presented which, for example, favorably compares Applicant to other A rated utilities, and Mr. Alexander assumed the risk that the existing parties would protect his interests.
In any event, Mr. Alexander has not shown that the existing intervenors have not represented or adequately protected his interests.
Finally, with regard to the fif th f actor, the Petitioner
" concedes his participation may slightly broaden the issue ar.d/or delay the proceeding." We are unable to assess the full extent either that the issues will be broadened or that the proceeding will be delayed.
However, even if we were to find in favor of Mr. Alexander with respect
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. to this factor, such a finding would not be dispositive since-it could not overcome the effect of his inexcusable tardiness and our adverse findings with respect to the three other factors.
ALAB-582, 11 NRC 239, 244 n. 10 (1980).
ORDER For the foregoing reasons, it is this 12th day of January 1982 ORDERED That Robert Alexander's Petition For Leave To Intervene is denied.
Pursuant to 10 C.F.R. 5 2.714a, within ten (10) days after the service of this Memorandum and Order, Mr. Alexander may appeal to the Atomic Safety and Licensing Appeal Board.
Judges Cheatum and Linenberger concur.
FOR THE ATOMIC SAFETY AND LICENSING BOARD N@
Sheldon J/ Wolfe I
ADMINISTRMIVE JUDGE heums i ir qui