ML20197B678
| ML20197B678 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 10/24/1978 |
| From: | Copeland J, Culp R, Newman J BAKER & BOTTS, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | |
| References | |
| NUDOCS 7811080054 | |
| Download: ML20197B678 (13) | |
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%mp UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AliD LICENSING BOARD In the Matter of
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HOUSTON LIGHTING & POWER COMPANY
)
Docket No. 50-466
)
(Allens Creek Nuclear Generating
)
Station, Unit 1)
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g APPLICANT'S RESPONSE TO PETITIONS II' FOR LEAVE TO INTERVENE FILED BY OC T2 41978 k r
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'O John Anderson, Lois H. Anderson,
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m4 a >*. see. w Emanuel Bashir, Mrs.
R.
M.
- Bevis, "U A '*""
George Broze, Shirley Caldwell, 6
g Allen D.
Clark, Edgar Crane,
_a 00 Patricia L.
Day, Jean-Claude De Bremaecker, Madeline Framson, Robert Framson, Steven Gilbert, Carro Hinderstein, Kathryn Hooker, Gregory J.
Kainer, Lee Loe, David Marke, D. Marrack, Dan M.
McCaughan, 1
Brenda A. McCorkle, Charles Michulka, Brent Miller, F.
H.
- Potthoff, John Renauld, John R.
Shreffler, Ann Wharton, Joe C.
Yelderman l
I.
Introduction On September 1, 1978, the Board issued a Corrected Notice of Intervention Procedures (Corrected Motice) which provided that petitions for leave to intervene could be filed in this
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proceeding by October 11, 19787 The Corrected Notice was published in the Federal Register on September 11, 1978
/The Board had issued an earlier Notice of Intervention Pro-cedures which was published in the Federal Register on May 31, 1978 (4 3 F.R. 23666).
Four petitions for leave to in-tervene, were filed pursuant to that notice.
The State of Texas is participating in this proceeding as an interested state under 10 CFR S2.715 (c).
78110Soory
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. (4 3 F.R.
40328), and provided that persons who wished to par-ticipate in this proceeding could file petitions for leave to intervene setting forth their " interest" and "how that interest may be affected by the results of the proceeding The Corrected Motice provided'that any contentions which a petitioner seeks to have litigated must be based upon "proposeC changes in the plant design and/or based upon new evidence or information that had not been available prior to the Appeal Board's memoran-dum and order of December 9, 1975, with the bases for each con-tention set forth with reasonable specificity."
In response to the Corrected Notice, petitions for leave to intervene in this proceeding were filed by the twenty-eight individuals whose names are set forth in the caption (collec-
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tively " petitioners").-
Applicant opposes the admission of the petitioners as parties to this proceeding and urges the Board to deny the petitions.
II.
Petitioners' Concerns Most of the petitioners recite that they live at a certain address or within a certain mileage of the proposed plant (e.a.,
within 25-30 miles of the plant, or within a 50 mile radius, at a given address in Houston or surrounding municipalities) and then
- /The petition filed by Dan M. McCaughan was postmarked October 12, 1978, and therefore appears to be untimely.
Applicant received in the mail from the MRC Docketing and Service Section the petitions of Messrs. Allen D. Clark and John R.
Shreffler on October 19, 1978, and the petition of Mr. Gregory J.
Kainer on October 21, 1978.
All other peti-tions for leave to intervene were timely filed.
A timely petition for leave to intervene was also filed by an organiza-tion, the National Lawyers Guild.
Applicant is filing a separate response to that organization's petition.
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. enumerate general concerns about nuclear power (e.c.,
radio-active emissions resulting from normal operations or from accidents, waste disposal, terrorist activity, allegedly ex-cessive costs, transportation accidents, environnental or recreational injuries, etc.).
However, all of the petitioners' concerns suffer from several common deficiencies which render them' inadmissible as issues in this proceeding.
First, petitioners have made no attempt to relate those concerns to the provisions of the Corrected Notice.
In short, not one is related to the changes in the design of the proposed Allens Creek Nuclear Generating Station (ACMGS) or to new infor-
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mation or evidence unavailable before Decenber 9, 1975.~
For that reason alone each of the petitions should be dismissed.
Further, none of the concerns expressed in the petitions are stated with sufficient particularity or supporting bases as required by 10 CFR S2.714 to be considered as admissible
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contentions in this proceeding.-~
Under MRC precedent, con-tentions must be stated with reasonable specificity and i
- /Only Michulka and Marke appear to even be aware of the re-quirements of the Corrected Notice.
Michulka states that "new information indicates that even low levels of radiation can cause cancer or genetic damage."
Marke cites "new evi-dence" apparently relating to water supply.
However, neither specifically identifies the nature of the "new information" or "new evidence" and when it became available,
- / Objections based on alleged dangers arising from the trans-portation of spent fuel and impacts of transmission lines are stated with somewhat more specificity, but still not enough to meet the requirements of S2.714.
Of course, no attenpt is made to identify what new information is relied upon to support those contentions or why they could not have been raised prior to December 1973.
, with supporting bases in order to be admitted as issues in the proceeding.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188 (1974).
In addition, one group of petitions seems to be bcsically a political statement of personal opposition to the use of nuclear power to generate electricity, rather than an expres-sion of a desire to litigate a particular issue in a licens-i
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ing hearing.~
The short answer to such petitions has recently been supplied by the Supreme Court when it emphasized that the basic Congressional decision "to at least try nuclear energy.
." is not subject to reconsideration in adjudicatory proceedings.
Vermont Yankee Nuclear Power Cor-poration v.
Natural Resources Defense Council, Inc., 435 U.S.
519, 558 (1978).
The petitions which attenpt such reconsidera-tion should be dismissed.
Other petitions also refer to natters which are outside the scope of this proceeding.
Even if the concerns about
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radioactive waste disposal expressed in fifteen of the petitions--
- /E.g.,both Anderson, the Bevis, the Day anel both Framson petitions.
- /Baskir, Devis, Bremaecker, Broze, Caldwell, Clark, Hinderstein, Eooker, Kainer, Loe, Marrack, McCaughan, McCorkle, Renauld, Wharton petitions.
were stated with greater specificity and with supporting bases, they are nevertheless matters which are not to be litigated in this particular licensing proceeding.
The environnental effects of the disposal of radioactive wastes are set forth in the
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Commission's regulations.~
Absent a showing of special cir-cumstances, they cannot be challenged in this proceeding.
10 CFR S2.758.
At least seven petitions seem primarily concerned that the hearings be fair and that the health, safety and environ-
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mental issues be thoroughly e::anined.~~
This concern, as well as all of the other concerns referred to above can, of course, be expressed in limited appearances under the provisions of 10 CFR S2.715 (a).
Applicant has no objection to the Board considering the petitions as requests for limited appearances and granting such requests.
III.
Interest If the petitions filed in this proceeding pursuant to the Board's Corrected Notice are considered as petitions for leave to intervene as parties under 10 CFR S2.714 (a), the Appli-cant believes that none of the petitioners have established the recuisite standing.
In considerina whether a petitioner has i
alleged sufficient interest under the Commission's regulations to be allowed to participate in this proceeding as a party,
- /10 CFR S 51. 2 0 (e ) and Table S-3,
" Summary of Environnental Considerations for Uranium Fuel Cycle."
- /Both Anderson, Bevis, Day, Gilbert, McCorkle and Yelderman petitions.
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l t a petitioner must show that (1) he will be injured in fact and (2) he comes within the " zone of interest" protected by the Atomic Energy Act or by the National Environmental Policy Act.
Portland General Electric, et al. (Pebble Springs Nuclear Plant, e
l Units 1 and 2), CLI-76-27, 4 NRC 610, 613 (1976); Tennessee Vallev Authorit_g (Matts Bar Nuclear Plant, Units 1 and 2), ALAB-1 413, 5 URC 1418 (1977).
In addition, 10 CFR S2.714 (a) requires a petitioner to assert, with particularity, how his interest may be affected j
by this proceeding.
There must be a strict observance of this requirement "in order that the adjudicatory process is invoked only by those persons who have real interests at stake and who seek resolution of concrete issues."
Vircinia Electric and Pouer Co. (North Anna Power Station, Units 1 and 2), ALAB-146, a
6 AEC 631, 633 (1973).
Petitioners have failed to make such a showing and therefore their petitions are defective.
As noted above, nearly all of the petitioners merely recite in their petitions that they reside a certain distance ~*/
from the proposed ACNGS, and recite general concerns without any
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allegation as to how they will be specifically affected by operation of the proposed f acility as required by Section 2.714 (a).
Thus several petitioners refer to " normal" and " accidental" i
radioactive releases from the proposed ACMGS.
11ovever, these concerns are overly vague and unspecific; and, as we have noted above, are unrelated to any changes in the design of the proposed 4
- /These distances from the proposed facility range from approx-Imately 20 miles (Michulka) to 100 miles (Marke).
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facility.
Nor have the petitioners identified any impacts different from those which would affect others in the same general vicinity.
There are no allegations in the petition of a unique interest, separable from those shared by the population at large.
Thus, petitioners have failed to satisfy-one impor-tant element of the " injury in fact" test:
the asserted harm
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must be-somehow distinct to the petitioner.-
Cf. Transnuclear Inc. (Ten Applications for Low-Fnriched Uranium Fxports to ERATOM Member Nations), CL1-77-24, 6 NRC 525, 531 (1977).
A number of petitioners express fears about transporta-tion accidents.
As an example, petitioner Marke alleges that "the danger to his person and property due to a transport acci-dent will be greatly aggrivated [ sic] by the operation of said Allens Creek Plant." The allegation that a transportation accident could affect a petitioner's interest is based on nothing more than pure speculation and as such, is not a proper basis to support standing.
In, Exxon Nuclear Co.,
Inc. (Nuclear Fue3 Recovery and Recycling Center), LBP-77-59, 6 NRC 518, 519-20 (1977) the Licensing Board denied a petition based on sinilar allegations stating that the allegations were " entirely specula-i tive in nature, being predicated on the tenuous assumptions j
that the spent fuel will be shipped by the named carrier and
- /For example, petitioner Marke's claim that his person and property, located some 100 miles from the proposed plant, will be affected by a major accident at the proposed ACNGS is vell beyond the range within which licensing boards have been will-ing to infer a health interest.
See Northern States Power Co.
(Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 190 (1973) (30-40 miles); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1421, note 4 (up to 50 miles).
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that an accident might occur in the area proximate either to her residence or to her rental property".
Id. at 520.
None of the petitioners who express fears about such accidents-*/
have provided a basis for the admission of this issue.
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One petitioner-~ and possibly one other claim to repre-2 sent an organization.
In order to represent a group in this proceeding, a petitioner must describe the purpose of the i
organization, identify the members of the organization, where the members reside in re]ation to the location of the proposed facility and how these members will be affected by operation of t'le proposed plant.
Further, petitioner must demonstrate that such members have specifically authorized petitioner to represent them in this proceeding.
Allied General NucJear Ser-vices (Barnwell Fuel Receiving and Storage Station), ALAB-328, 7
3 URC 420, 422 (1976).
Both of these petitioners have failed i
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to provide this information.
Finally, to the extent that the petitioners seek to rely on customer or taxpayer status to establish standing (e.a.,
~*/Baskir, Bremaecker, Caldwell, Crane, both Framsons, Hinder-tein, Hooker, Kainer, Loe, Marrack, McCaughan, McCorkel, Miller, Renauld petitions.
- / Petitioner McCaughan has signed his petition as a member of the Environmental Task Force, but there are no other allega-tions in the petition with respect to this particular group.
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Hinderstein, Michulka), it has been held that neither is ade-quate to support standing in Commission proceedings.
Portland General Electric Co.,
supra, 4 HRC at 614; Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418, 1420-21 (1977).
For the reasons discussed above, the petitioners have failed to establish standing to intervene in this proceeding
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as parties and therefore the petitions should be denied.~
IV.
Conclusion Because of the deficiencies discussed above, the Board should deny the petitions for leave to intervene.
We are aware, l
l however, under the Commission's regulations set forth in 10 CFR S2.714 (a) (3), a person may amend his petition for leave to intervene without prior approval of the Board at any time up to 15 days prior to the special prehearing conference.
If any of the petitioners in fact wish to participate in this proceed-ing as full parties under the provisions of S2.714 (a), and not by way of making limited appearances, they, of course, can file
- / Petitioner David Marke argues that he should be admitted as a party to this proceeding as a matter of the Board's discre-tion.
While the Licensing Board has discretion to grant a petition for leave to intervene which does not otherwise meet the requirements of 10 CFR S2.714, this discretion must be ex-ercised " based on an assessment of all the facts and circum-stances of the particular case," including the factors set forth in 10 CFR Sections 2.714 (a) and 2. 714 (d).
Portland General Electric Company (Pebble Springs Muclear Plant, Units 1 and 2),
CL1-76-27 4 NRJ 610, 616 (1976).
Petitioner has not demonstrated in what manner he can make a " valuable contribution" to this proceeding, nor has he made any attempt to discuss the factors set forth in 10 CFR Sections 2.714 (a) and 2. 714 (d).
Therefore, the Board has no basis upon which to exercise its authority to admit, as a matter of discretion, Mr. Marke as a party to this proceeding.
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i amended petitions to establish their legal standing no later e
than fifteen days prior to the holding of the special prehear-ing conference prescribed by the NRC's regulations.
10 CFR S S 2. 714 (a) (3), 2.715a.
We assume the Licensing Daard will shortly set the date of the special prehearing conference-*/
and thereby fix the date (fifteen days earlier than the pre-u hearing conference date) on which both amendments of petitions to intervene and contentions not previously asserted may be filed.
Respectfully submitted, m
October 24, 1978 Nb Jack R.
Newnan Robert H. Culp 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 J.
Gregory Copeland Charles G.
Thrash, Jr.
3000 One Shell Plaza Houston, Texas 77002 Attorneys for Applicant HOUSTON LIGHTING & POWER COMPANY OF COUNSEL:
BAI'ER & BOTTS 3000 One Shell Plaza Houston, Texas 77002 LOWENSTEIN, NEW11A11, REIS
& AXELRAD 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036
- /In a letter to the Board dated October 17, 1978, the NRC 5taff has suggested November 28, 1978 as the date for the special prehearing conference with alternative dates of November 27, 29 or 30, 1978.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Mat *ar 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 the foregoing Applican-'s Response to Petitions for Leave to Intervene Filed By John Anderson, Lois H. Anderson, Emanucal Baskir, Mrs.
R.
M.
Bevis, George Broze, Shirely Caldwell, Allen D.
Clark, Edgar Crane, Patricia L.
- Day,
)
Jean-Claude De Bremaecker, Madeline Framson, Robert Framson, Steven Gilbert, Carro Hinderstein, Kathryn Hooker, Groogry J.
Kainer, Lee Loe, David Marke, D. Marrack, Dan M.
McCaughan, Brenda A.
- McCorkle, Charles Michulka, Brent Miller, F.H.
Potthoff, John Renauld, John R.
Shreffler, Ann Wharton, Joe C.
Yelderman in the above-captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand-delivery this 24th day of October, 1978.
Sheldon J.
Wolfe, Esq., Chairman Richard Lowerre, Esq.
Atomic Safety and Licensing Assistant Attornev General Board Panel for the State of Texas i
U.S. Nuclear Regulatory Commission P.O. Box 12540 Uashington, D.C.
20555 Capitol Station Austin', Texas 7871]
Dr.
E. Leonard Cheatum Hon. Jerry Sliva, Mavor Route 3, Box 350A City of M'allis, Texas 77485 l
Watkinsville, Georgia 30677 1
Mr. Glenn O.
Bright Atomic Safety and Licensing Gregory J.
Kainer Board Panel 11118 Mickwood U.S. Nuclear Regulatory Commission Houston, Texas 77024 Washington, D.C.
20555 Chase R.
Stephens Atomic 'afety and Licensing Docketing and Servic2 Section Appeaz Board Office of the Secretary of the U.S. Nuclear Regulatory Commission Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
-20555 E
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Gordon Gooch, Esq.
Atomic Safety and Licensing Baker & Botts Board Panel 1701 Pennsylvania Avenue, N.W.
U.S.
Nuclear Regulatory Washington, D.C.
20006 Commission Washington, D.C.
20555 Steve Schinki, Esq.
T. Paul Robbins Staff Counsel c/o AFSC i
U.S.
Nuclear Regulatory 600 West 28th Street, #102 Commission Austin, Texas 78705 Washington, D.C.
20555 John F. Doherty Wayne E.
Rentfro Armadillo Coalition of Texas P.O.
Box 1335 4438 1/2 Leeland Rosenberg, Texas 77471 Houston, Texas-77023 James Scott, Jr.
Brenda A. McCorkle 8302 Albacore 6140 Darnell Houston, Texas 77074 Houston, Texas 77074 1
Carro Hinderstein Emanuel Baskir 8739 Link Terrace 5711 Warm Springs Road Houston, Texas 77025 Houston, Texas 77035 Jean-Claude De Bremaecker Steven Gilbert, Esq.
2128 Addison 122 Bluebonnet Houston, Texas 77030 Sugar Land, Texas 77478 Edgar Crano Brent Miller 13507 Kingsride 4811 Tamarisk Lane, Houston, Texas 77079 Bellaire, Texas 77401 Patricia L.
Day John V. Anderson 2432 Nottingham 3626 Broadmead Houston, Texas 77005 Houston, Texas 77025 Lois H. Anderson John R.
Shreffler 3626 Broadmead 5014 Braeburn j
Houston, Texas 77025 Bellaire, Texas 77401 David Marke Robert S.
Framson-Solar Dynamics, Ltd.
4822 Waynesboro Drive 3904 Warehouse Row Houston, Texas 77035 Suite C Austin, Texas 78704 Madeline Bass Framson 4822 Waynesboro Drive Houston, Texas 77035
. Shirley Caldwell Mrs.
R.
M. Bevis 14501 Lillja 7706 Brykerwoods Houston, Texas 77060 Houston, Texas 77055 Ann Wharton Kathryn Hooker 1424 Kipling 1424 Kipling Houston, Texas 77006 Houston, Texas 77006 Joe Yelderman, M.D.
John Renaud, Jr.
Box 303 4110 Yoakum Street Needville, Texas 77461 Apartment 15 Houston, Texas 77006 D. Michael McCaughan Allen D.
Clark 3131 Timmons Ln.
5602 Rutherglenn Apartment 254 Houston, Texas 77096 Houston, Texas 77027 Lee Loe 420 Mulberry Lane 1844 Kipling Bellaire, Texas 77401 Houston, Texas 77098 George Broze Alan Vomacka, Esq.
1823-A Marshall Street Houston Chapter, National Lawyers Houston, Texas 77098 Guild 4803 Montrose Blvd.
Charles Michulka, Esq.
Suite 11 P.O.
Box 882 Houston, Texas 77006 Stafford, Texas 77477 Hon. John R.
Ilikeska Austin County Judge P.O. Box 310 Bellville, Texas 77418 N*
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