ML19260D188
| ML19260D188 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 01/24/1980 |
| From: | Doggett S DOGGETT, S.A. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8002080049 | |
| Download: ML19260D188 (9) | |
Text
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- 51 UNITED STATES OF AMERICA Office of the SecthTy Docketing & Senrice NUCLEAR REGULATORY COMMISSION Br*ach j
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N ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S. Rosenthal, Chairman Dr. John H. Buck Michael C. Farrar In the Matter of S
S HOUSTON LIGHTING AND POWER COMPANY S
Docket No. 50-466 5
(Allens Creck Nuclear Generating S
Station, Unit 1)
S PETITION FOR REVIEW OF DECISION OF ATOMIC SAFETY AND LICENSING APPEAL BOARD Pursuant to S2.786 of the Commission's Rules of Practice for Domestic Licensing Proceedings, Petitioners DONALD D.
WEAVER, PATRICIA L. STREILEIN, and KATHRYN OTTO petition for review of the Decision by the Atomic Safety and Licensing Appeal Board.
I. DECISION OF WHICH REVIEW IS SOUGHT By Decision dated January 10, 1980 3.se itemic Safety and Licensing Appeal Board affirmed the ticer. dng Board's November 19, 1979 order which denied the intervention petitions of Petitioners and decreed that their papers would be treated as merely requests to make limited appearance statements.
1942 169 8 00P080 ()
II. MATTERS OF FACT OR LAW RAISED BEFORE APPEAL BOARD Petitioners filed Notices of Appeal from the Board's Order of November.-19,1979 with the Appeal Board on or about December 4, 1979.
Each Petitioner raised the following two grounds of appeal:
(1) publication of notice in the Federal Register only is a denial of fair notice and due process; and (2) the Supplemental Notice of Intervention Procedures dated June 12, 1979 published in the Federal Register is defective in requiring Petitioners to state that they failed to file petitions for leave to intervene pursuant to the Board's prior notices because of restrictions in those notices; such defective notices are tantamount to no notice and the requirement of a statement of proof of intbnidation by the improper restrictions in prior notices denies due process.
PATRICIA L. STREILElN additionally argued that she in fact failed to intervene because of restrictions in prior notices, which restrictions she read about in newspaper accounts which accurately set out the restrictions.
DONALD L. WEAVER additionally argued that he in fact failed to intervene because of the restrictions in prior notices as was stated in the record on his behalf by J. Morgan Bishop (Mr. Weaver being in Hawaii at the time of the hearing),
that he was not put on notice that personal attendance or testimony would be required, and that the Board seemed to be erroneously emphasizing the issue of
-aer a statement of
.4 prior notice intimidation was included in the petition, as opposed to whether in fact prior notice intimidation had occurred.
1942 170
III. THE APPEAL BOARD'S DECISION IS ERRONEOUS RESTRICTIONS IN THE JUNE, 1979 SUPPLEMENTAL NOTICE A.
The Appeal Board summary rejected the contention that the 1979 improperly had supplementary notice issued in June, required petitions to state affirmatively that they had not filed a petition in 1978 because of'the restrictions' contained The Appeal Board took the position in the notices of that year.
1978 notices were not void and that it was unlikely that that tha the restrictions had served to discourage potential petitioners.
It left to the Licensing Board the decision of whether or not It found that the restrictions further notice might be necessary.
1979 notice were reasonable and proper.
in the June, (1)
The Appeal Board's decision is erroneous because:
contained improper restrictions the May and September, 1978 notices and were therefor void; (2) the June,1979 Supplemental Notice improperly restricts intervention by requiring intervenors to state that they were intimidated or dissuaded from filing by the improper and unlawful notices of May and September,L1978; the June, 1979 notices is therefore not fair notice and (3) denies due process.
B.
FEDERAL REGISTER NOTICE The Appeal Board did not reach the contention: that is insufficient notice.
publication in the Federal Register The Appeal Board noted that petitioners had a duty to ascertain any preconditions for intervention, that this would have been 1942 171 easy to do, that petitioners failed to do so, and that the Licensing Board was therefore justified in rejecting their petitions for intervention.
The Appeal Board's conclusion is wrong because publication of notice in the Federal Register only in this case was insufficient to provide fair notice and is a denial of due process.
Petitioners' attack on the validity of notice to them must be addressed.
The Appeal Board is taking the position that petitioners had a duty to ascertain and comply with requirements in a notice which notice petitioners are claiming is improper and constitutionally insufficient.
C.
INTIMIDATION IN FACT The Appeal Board rejected the arguments of PATRICIA L.
STREILIEN and DONALD D. WEAVER that they were in fact intimidated by restrictions in the 1978 notices on the grounds that no weight should be at.tached to hearsay statements on this issue.
The Appeal Board's decision is erroneous because no Board notice in relation to the Pre-Hearing Conference required
~
a personal appearance or sworn testimony or affidavit on the issue of failure to file because of restrictions in prior notice; the Licensing Board only required that it be" advised" on this issue.
(JUNE 12, 1979, Order pp 3-4).
The rejection of statements by Petitioners' attorney or others on the ground of hearsay or lack of probative value denies due process and is unfair because of lack of notice that personal appearance or sworn statement would be required.
1942 i72 Petitioners STREILEIN and WEAVER are also denied equal protection because they have been required to produce non-hearsay proof on this issuecwhile other intervenors have been admitted on the basis of hearsay, ;dbeit smittal statemente contained in their petitions to intervene.
IV. COMMISSION REVIEW SHOULD BE EXERCISED Commission review should be exercised because the Licensing Board and Appeal Beard denial of Petitioners' interventions are erroneous and involve important procedural issues and questions 32 public policy. Petitiaurs have questioned the fairness of giving notice solely by publication in the Federal Register in this licensing proceeding.
Petitioners concede that this manner of notice conplies with the letter of statutory law, but argue that this notice does not meet constitutional requirements.
of due process fair notice.
Moreover, they have attacke d restrictions in the particular notice in question as being unfair and invalid under due process.
A ruling on these two issues could have enorrmous impact on the course of this licensing proceeding and on procedures in other licensing proceedings as well.
What is involved is not strictly a narrow legal question.
This is also a policy decision as to just how the Commission will construe its rules and governing statutes as they relate to the issue of citizen participation in its licensing proceedings.
The evidence is overwhelming that publication of notice in the 1942 173
.c.
Federal Register in this case has not been effective in providing actual notice to potentially interested persons.
No one intervened after the Federal Register notice in 1973.
Increasing numbers have attempted to intervene after subsequent notices, but their number, certainly less than. 200, is incred'.bly small considering the location of the proposed plant is La ar area containing a million plus persons.
Moreover, those who did intervene in ibust every case learned about the proceedings from a source other than the Federal Register.
Those few who have heard about the: licensing proceedings and have attempted to intervene have been met with the staunchest resistance from the Applicant, NRC Staff, Licensing Board and Appeal Board.
On close examination, Petitioners in this case have been denied intervention solely because they failed to include a sentence in their petitions stating that they failed to intervene because of restrictions in prior notices.
Is it the policy of the NRC to exclude from licensing proceedings citizens,whose health and property may be affected, on the grounds that they have failed to comply with what to them must surely seem to be a legal technicality?
These citizens ask "what has the applicant and NRC got to hide?
Why can't we be involved ".
1942 174 Decisions such as this denying of Petitioners intervention, and the legal tusselhg leading up to such decisions, do more to impede the progress of licensing proceedings and obscure the real issues in such proceedings than any other cause.
It is respectfully urged that the Commission reverse the Appeal Board in this matter, that the Commission mandate guidelines which will assure fair notice to those who live near proposed nuclear facilities, and that the Commission establish a policy which will allow, if not encourage, full participation in licensing proceeding by concerned citizens.
Respectfully submitted, 0)
STEPHEN A. DOGGETT Attorneys for Petitioners 1000 Austin - Suite C P.O. Box 57 Richmond, Texas 77469 Telephone:
(713) 342-3242 342-3321 1942 175 e
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JAN2 01980 * %
UNITED STATES OF AMERICA OUice of(b Secretary 4
Dod:stin &Serdce En d NUCLEAR REGULATORY COMMISSION C?
/
N In the Matter of S
S HOUSTON LIGHTING & POWER COMPANY S
Docket No. 50-466 S
(Allens Creek Nuclear Generating S
Station, Unit 1)
S CERTIFICATE OF SERVICE I hereby certify that copies of " Petition for Review of Decision of Atomic Safety and Licensing Appeal Board" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this SL4+4 day of January,1980:
Alan S. Rosenthal, Esq., Chairman Richard Lowerre, Esq.
Atomic Safety and Licensing Asst. Attorney General for Appeal Board the State of Texas U. S. Nuclear Regulatory Commission P. O. Box 12548 Washington, D.C.
20555 Capitol Station Austin, Texas 78711 Dr. John H. Buck Atomic Safety and LL: censing Mr. John F. Doherty Appeal Board 4327 Alconbury Street U. S. Nuclear Regulatory Commission Houston, Texas 77021 Washington, D.C. 20555 Mr. & Mrs. Robert S. Framson Michael C. Farrar, Esq.
4822 Waynesboro Drive Atomic Safety and Licensn.
Houston, Texas 77035 Appeal Board U.S. Nuclear Regulatory Commission Mr. F.H. Potthoff, III Washington, D.C.
20555 1814 Pine Village Houston, Texas 77080 Sheldon J. Wolfe, Esq., Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission D. Marrack Washington, D.C.
20555 420 Mulberry Lane Be11 eire, Texas 77401 Dr. E. Leonard Cheatum Route 3, Box 350A Watkinsville, Georgia 30677
} 942. l[6 Mr. Gustave A. Linenberger a
Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D.C.
20555
Texas Public Interest Research Group, Inc.
c/o James Scott, Jr., Esq.
8302 Albacore Houston, Texas 77074 Docketing and Service Station Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Margaret Bishop 11418 Oak Spring Houston, Texas 77043 Patricia L. Streilen Route 2, Box 398-C Richmond, Texas 77469 J. Gregory Copeland, Esq.
Baker & Botts One Shell.: Plaza Houston, Texas 77002 Jack Newman, Esq.
Lowenstein, Reis, Newman & Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.C.
20037 Ms. Kathryn Otto Rt. 2, Box 62L Richmond, Texas 77469 Donald D. Weaver P.
O. Drawer V Simonton, Texas 77476 1942 177