ML19257A514

Supplemental Brief in Form of Pleading Supporting K Otto,Pl Streilen & DD Weaver Appeal of ASLB 791119 Order.Alleges That Fr Notice Is Insufficient to Provide Fair Notice & Constitutes Denial of Due Process.Certificate of Svc Encl

ML19257A514
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	12/14/1979
From:	Doggett S DOGGETT, S.A.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8001040536
Download: ML19257A514 (3)

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UNITED STATES OF AMERICA 2

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• NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL DOARD ,

Alan S. Rosenthal, Chair an

' *i Dr. John H. Buck

• Michael C. Farrar In The Matter of 5 h 5 - i HOUSTON LIGHTING & P0b*r.R COMPANY 5 Docket No. 50-466 a 5

i (Allens Creek Nuclear Generating 5 3 Station, Unic L) 5 1 s

SUPPLEMENTAL BRIEF IN SUPPORT OF" -

APPEALS OF KATHRYN OTTO, PATRICIA '

L. STREILEN, AND DONALD D. k'EAVER The above-named petitioners for intervention hereby file their supplemental brief in support of their appeal l' of the Order dated November 19, 1979 by the Atomic Safety ll and Licensing Board. ,

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1 I. Publiution of notice in the Federal Register only is I

.s insufficient to provide fair notice and is a denial of due  ;

process. ,j One of the essentials of due process is notice. Anderson  ;;

National Bank v. Luckett, 321 U.S. 233, 88U.S. 97, 78 led 674, 54 S. Ce 330.  !

To meet the requirements of due process, the notice cust be reasonable and adequate for the purpose, due regard being had to the nature of the proceedings and the character of the rights which may be affected by it. Dohany v. Roberts, 281 U. S. 362, 7L.Ed. 904, 50 S. Ct 299; Roller v. Hollv, 176  ;

U.S. 398, 44L.Ed. 520, 20 S. Ct. 410. The notice must be of such nature as reasonably to convey the required infor=ation.

Mullane v. Central Hanover Bank & Trust Co, 339 U. S. 306, '

94 L. Ed. 865, 70 S. Ct. 652. Tae notice afforded should ', ,

be such as is likely to be received. Schroeder v. New York City, 371, U.S. 208, 9 L. Ed. 2d 255, 83 S. Ct. 279. The means j employed to give notice should be of a kind that one wanting l f to actually inform the person to be notified might reasonably 1685 046 soo non %

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adopt to provide notice. Covev v. Socers,351, U.S. 141, 100 l L. Ed. 1021, 76 S. Ce 724. Publication of notice in the Federal Register is clearly not a reasonable or adequate -

means to give notice to persons who live near a proposed nuclear generating site. There was ample testimony from j various petitioners that they did not know what the Federal Register was, did not know where to find it, and did not read -

4 it. Further evidence supporting the lack of notice by Federal t Register Publication is the fact that only one petition to .

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intervene was filed by the State of Texas in response to the initial notice published in December, 1973, and only fire s

parties sought intervention in respond to the May,11978 notice.

Such " notice" is not likely to be received but likely not to be received. ,

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• Construction of a nuclear generating station has tre=endous i= pact and potential for impact in a relatively .

narrow geographical area. This is recognized in 10 CFR 100.10 [

Site Evaluation Factors; 10 CFR 100.11 Exclueions area, low Population Zone, and Population Center Distance, and in Appeal -

Board decisions such as Virginia Electric Power Coceany (North li l

Anna Nuclear Power Station, Units 1 and 2), AIAB-522, 9 NRC '

9, 54,56 (January 26, 1979). It would be impractical to atte=pt ',

to provide individualized personal notice to everyone within j a 50 mile radius of a proposed facility. However, due process requires that some reasonable effort be =ade to give actual notice. The obvious solution is to publish notice in several  ;

newspapers of general circulation within the various cou:munities }

within the affected geographical area. Similar publication has i

been upheld in a case involving escheat of dormant bank deposits to the state. Security Savings Bank v. California, 263 U.S.

282, 68 L. Ed. 3 II. The Supple = ental Notice of Intervention Procedures dated 3

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June 12, 1979 in the Federal Register is defective in requiring Petitioners to state that they failed to file petitions for . -

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} leave to intervene pursuant to the Board's prior notices I l t t

[ because of restrictions in those notices; the defective notices l 1s tantamount to no notice and de require =ent of a statement ,,

4 of or proof of intimidation by the restrictions in prior i notices denies due process. The requirement of a statement <f ,

of intimidation is wholely improper. If prior notice placed ,

unwarranted limitations upon the right to intervene, then such notice isiinvalid, and it is improper to include in a subsequent '.

notice a requirement that petitioners state that they were

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in fact intimidated bythe wording of the improper notice. j Such requirement serves to perpetuate the intimidating nature '

s of prior improper restrictions.  ;;

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Respectfully submitted,  :

N' b Stephen A. Doggect l6 E

CERTI"ICATE OF SERVICE 4 I hereby certify that copies of Supplement.al Brief in i Support of Appeals of KATHRYN OT"'O, PATRICIA L. STREILEIN, ',

and DONALD D. WEAVER in the above-captioned proceeding have been i served on the following by deposit in the United States mail, i <

first class, this 14th day of December:

Sheldon J. Wolfe, Esq., Chair =an Richard Lowerre, Esq.

Atomic Safety and Licensin3 Board Asst. Act. General for  !'

Panel the State of Texas U. S. Nuclear Regulatc,ry Cc= mission P. O. Box 12548 Washington, D.C. 2055f Capitol Station  ! '-

Austin, Texas 78711 i Dr. E. Leonard Cheatum Route 3, Box 305A Atomic Safety and Licensing l Watkinsville, Georgia 30677 Appeal Board U.S. Nuclear Regulatory Mr. Gustave A. Linenberger Co= mission Atomic Safety and Licensing Washington, D.C. 20555 Board Panel .

U.S. Nuclear Regulatory Co= mission Docketing and Service Section .

Washington, D. C. 20555 office of the Secretary ,_

U.S. Nuclear Regulatory J. Gregory Copeland,Esq. Commission ' '

Baker & 3otts Washington, D.C. 20555 l'

One Shell Plaza i Houston, Texas 77002 7 i

Jack New=an, Esq.

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Lowenstein, Reis, New=an & Azelrad 3 qf 1025 Connecticut Avenue, N.W. A j g ' (4 Washington, D. C. 20037 g

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