ML20045E791
| ML20045E791 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek, 05000467 File:Houston Lighting and Power Company icon.png |
| Issue date: | 03/17/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-036, SECY-A-80-36, NUDOCS 9307060053 | |
| Download: ML20045E791 (11) | |
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Ufdl1 EO STAT ES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 TORY SECY-A-80-36_
March 17, 1980 COMMISSIONER ACTION For:
The Commissioners James A. Fitzgerald From:
Assistant General Counsel REVIEW OF ALAB-582, HOUSTON LIGHTING AND POWER
Subject:
COMPANY Facility:
Allens Creek, Unit 1
.To inform the Commission of an Appeal Board
Purpose:
decision on which review has not been sought f j'
{andwhich,inmyopinion, Review Time Expires:
March 24, 1980 In ALAB-582 the Appeal Board affirmed upon Discussion:
= = appeal the Licensing _Bo.ard decision, denying
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....;_..-= ~ Robert Alexand'er'is-untimely petitionato' " J/-
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.n intervene in thir.' pro.ceeding, 4M The: Appealc : pun -
Board agreed with.the: Board VeTow'Th'at Mr.
Alexander had failed to meet the criteria justifying late intervention set forth in 10 CFR 2.714. 2_/
1/
Four other petitions to intervene in this proceeding were denied by the Licensing Board and affirmed by the Appeal Board.
See ALAB-574, 11 NRC (January 10, 1980).
Six-teen intervenors have been admitted as parties to date.
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2/
Those factors are:
(1)
Good cause, if any, for failure to file on time.
(ii)
The availability of other means whereby the peni-tioner's interest will be protected.
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(iii)
The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
l The extent to which the petitioner's interest'will (iv) be represented by existing parties.
(v)
The extent to which the petitioner's participation L
will broaden the issues or delay the proceeding.
Information in this record was deleted Marian E. Moe, OGC 634-3224 in accordance with tpeedom of information Act, exe[mntions 9307060053 9303i7
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F01A _
g GILINSK92-436 PDR
2 The Licensing Board ruled initially that the fact that Mr. Alexander had only recently moved to Houston did not demonstrate good cause for his late filing.
In doing so, it relied on the ruling in Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1 4), ALAB-526, 9 NRC 122, 124 (1979) that " newly acquired standing [is not) sufficent of itself to justify permitting belated intervention."
The Scard then looked at whether the other factors set forth in 5 2.714(a) outweighed "the absence of a satisfactory excuse for lateness," and found that the petitioner had particulariced his interests sufficiently not to allow it to assess them.
In addition, the Board found that Mr. Alexander failed to demonstrate how the fact that he is an articu-of late teacher with knowledge of the impact the Davis-Besse plant in Ohio would enable him to make a valuable contribution to the development of a sound record.
In his appeal, Mr. Alexander augmented the factual basis of his petition in the erro-t..-- - De.ous, belie,Gt, hat,.he could.cury.,. t h e...d e f i,,,,,
cisn'oies in'~hisfpre'vi'obs rTi'lingNppriappeal;..c,JI;,
x ca : eTThi'Appe'al" Boaf d ;propsrl'y7de 611Wsd! t o tbase -!: '
,7 its decision ~upon the'n'ew'facths1"sssertions',' 7 "
since the Licensing Board's decision from which the petitioner appealed was based on the record before it at the time it ruled on the petition.
Nevertheless, the Appeal Board found that Mr.
Alexander's new assertions would not have justified late intervention even if they_had been part of the record below.
The Appeal Board reviewed Mr. Alexander's December 14, 1979 and February 10, 1980 filings, and found that his additional claims of injury to his anticipated real estate purchases, to the aesthetics of the land, and to the health and well-being of his family were insufficient to override the defect of tardiness.
- Moreover, the petitioner failed to explain why his concerns regarding the plant differ from L-
~3 those.of the nunerous intervenors already admitted to this proceeding. r
[f y c
Recommendation:
m James A. Fitzgerald Assistant General Counsel
Attachment:
ALAB-562
.i Comissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Monday, March 24, 1980.
. a nu,,n-.=~ -
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Comissioi1 Ttaff Office coments, i f any~, rJ6iWR;_;u,.--.s...............,..s timiltedroMtre c
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with an infonnation copy tbiths OffitiTdCth0Er4Tirf.EIfithea...
March 20, 1980, paper is of such a nature that it requires additional t'frie'fdr analytica1' r~eview and coment, the Comissioners and the Secretariat should be apprised of when. comments me.]
be expected.
r DISTRIBUTI0fi Comissioners Comission Staff Offices Secretariat-
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UNITED STATES OF AMERICA
'1
-7 NUCLEAR REGULATORY COMMISSION
$9
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ATOMIC SAFETY AND LICENSING APPEAL BOARD t.
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Alan S. Rosenthal, Chairman E{' ge.e SW$h ]
Dr. John H.
Buck i
Ot'd c#frr k
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Michael C.
Farrar 04t g3 C>
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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
)
Station, Unit 1)
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)
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Mr. Robert Alexander, Houston, Texas, appellant pro se.
Messrs. Jack R. Newman, Robert H. Culp
^ ^ 2 M '-
and" David ' B c -Raskin i -Wa shington, - D.C. r and1Me ssr s. ^ -J.+Gr egory'Copelasd, *# '* "-# ^ '" """' '
C. ' Thomas' Biddler Jr.; t 'ahd1Charisii MTV', '-MVj].,,( ['
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Thrash,-Jr.,iH6uston,2 Texas, for-the applicant, Houston Lighting and Power Company.
Mr. Stephen M.
Schinki for the Nuclear Regulatory Commission staff.
DECISION February 22, 1980
( ALAB-582) 1.
We are here confronted with another appeal taken under 10 CFR 2.~/141 from the denial of a petition for leave to inter-vene in this construction permit proceeding involving the e
Allens Creek facility.
See ALAB-574, 11 NRC (January 10, 1980).
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The appellant now before us is Robert Ale'xander.
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 licensing board in deciding whether to accept a late petition.1!
1/
The October 1978 deadline was established in an amended
" Notice of Intervention Procedures", published on Septem-ber 11, 1978.
See 43 Fed. Reg. 40328.
On June 18, 1979, the Licensing Board published a supp.lementary notice ad-dressed to persons whoih&difa'ilWd earlier'- to-seekointefve'n---
tion because of cErtaisirestri'ettidiisc-if the'1978 not' ice.$
1 Any such person wa's"glFen ~un~ti-13s1911Y,1979 to file a i
T 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 likely is not entitled to the benefit of the provisions of the supplementary June 1979 notice.
2_/
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 petitioner's participation I
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 Schoot 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.assuresyou that my.participA. tion.will.-mot.3.3
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" " " ' ' ' ' ~ ~~
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broaden the basic ~ issue. I will"ask~fofho"
= = -h. -,-
delays in,the procee, dings...
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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 the representation that he had just become a resident of Houston, Board pointed to our ruling a year ago that " newly acquired stand-ing [is not] sufficient of itself to justify permitting belated 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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4-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 f actors 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.
f the Licensing Board's conclusion that the papers filed with it were inadequat'6; Rather, 'in the seeming belief th~at,~ by ~taking'
.a.
an appeal, he now en],oys tte rlbht to ' cure"<the'*ddfidien..ucie s"o f,' " "
av-~ ~
--e rw.
.n ein, e~
,.. - - v his initial filing and further clarify his need to intervene in these proceedings", Mr. Alexander has undertaken to supplement the f actual content of his intervention peti-tion.
That belief is, of course, entirely mistaken.
The
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Licensing Board's ruling on his intervention petition was neces-1 sarily based on the record before it.
Consequently, we would scarcely be justified in overturning the ruling on the strength 4
-5 of now assertions of fact 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.
Thisissowhetherourfocusisuponwhatwassaidinhis 14, 1979 brief 4 / or, rather, upon the quite dif-December ferent representations found in a reply brief filed (with our leave 5 /) on February 10, 1980, a.
In his December brief, Mr. Alexander told us that he resides approximately 26 miles from the Allens Creek site and that his " main interest in these proceedings is manifested by his plans for futurs investment of nearly $120,000 in [ Houston) rea1 es ta te b'y' 19 8 3 "' = ~ ad' 'inve'stNe;ni. _,Hich',' We-cTalnis,'ini~ghO "ee-
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be diminished in value over the course of time because of the nearby presence of a nuclear plant.
But the mere possibility 3_/
See, in this connection, ALAB-574. supra, 11 NRC at fn. 9.
4/
The representations in that brief were repeated verbatim in a supplemental brief filed on January 3, 1980.
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But see fn.
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. b!
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 i
h 7-t~~~~t' averment in his brief that " {h}5' dealt 'intimEEEly wl'th:the impact the Dav'is-Besse"(Ohio) jlint hadcupoh" the" environment'~ el
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and particularly the economic conditions with regard to reel 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
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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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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 f acility 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.7 /
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 haviipon thst':Nrha?:m:.dTid'3Ef t"hytis11yl3ri? Z, ;:.IC N
ect Lava.u
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.:. ng.
the dark as to why th6se intdivenoEs~cinnot adequal.di'y~2epr'6 ' "~ ~
sen't any cognizable interest which he may have in the preserva-tion of local property values.
(Mr.. Alexander is, of course, 7/
We understand that the intervention petitions of some 20 organizations and individuals have been granted and
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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 2.714 (b).
Accordingly, there are likely to be many more intervenor participants here than there have b'een in most other proceedings.
e 9
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free to of fer his assistance to them.) -!
b.
For its part, Mr. Alexander's recently-filed " reply" brief 9/ 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
_8/
We have not overlooked Mr. Alexander's additional new allegations in the December brief that the f acility "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 af fected by the aesthetic impact of the f acility.
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 vElectrie-Co s h(Pabble ' (prings %r,c,7c y.g-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.
9/
In actuality, the brief does not con ~sist of a reply to' the briefs of the applicant and the staf f.
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 J
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 tha t, if the Allens Creek f acility is built, he and the other members of his f amily 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 t6 believe that he would be able to make a significant contribution to the development e
of an evidentiary record on one or more safety issues...Nor 4
has he endeavored to explain -
,as he must-5o'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-i viduals are any less interested in -- and thus are any less inclined to raise -- the question's which Mr. Alexander main-tains he alone might be expected to pursue.
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)
i 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 f ar short of what would be required to-
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overturn the denial of his untimely petition.10 /
Accord-ingly, the Licensing Board's November 20, 1979 order must be, and hereby is, a'ffirmed.
It is so ORDERED.
FOR THE APPEAL BOARD a
i C. J @ Bishop Secretary to the Appeal Board i
l While it may be that Mr. Alexander's participation would 1 0,'
l not broaden the issues or occasion delay, that factor is not dispositive.
Gulf States Utilities Co. (River Bend Station, Units 1 and 2), AIJd3-4 4 4, 6 NRC 760, 798 (1977).
i In this instance, it cannot overcome the extreme weakness i
of the showing made on the other f actors.
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