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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20063N7471982-10-0606 October 1982 Motion for Termination of Proceedings.Util Decided to Cancel Plant.Certificate of Svc Encl ML20063N7591982-10-0606 October 1982 Withdrawal of Application for CP ML20055A7221982-07-15015 July 1982 Memorandum & Order Denying Jf Doherty 820615 Submittals, Treated as Motion to Reconsider ASLB 820602 Order.Motion Untimely Filed & Failed to Show Significance or Gravity of Issues ML20055A3551982-07-12012 July 1982 Amended Contention 59.Certificate of Svc Encl ML20054L4521982-07-0202 July 1982 Response Opposing J Doherty 820615 Motion to Reopen Record to Add Contention 59.Motion Fails to Establish Timeliness &/Or Significance of Issues Sought to Be Raised.Certificate of Svc Encl ML20054L5531982-07-0202 July 1982 Response Opposing Doherty 820615 Motion to Reopen Record to Add Contention 59.Motion Should Be Considered Motion for Reconsideration of ASLB 820602 Order.Timeliness & Significance of Issues Not Established.W/Certificate of Svc ML20054J9371982-06-28028 June 1982 Response Opposing J Doherty 820615 Request to Reopen Record. Request Improper & Insufficient to Support Relief.Commission Rules Cannot Be Circumvented by Refiling Same Argument After ASLB Ruling Issued.Certificate of Svc Encl ML20054F9861982-06-15015 June 1982 Motion to Reopen Record to Take Evidence on Contention 59. Gravity of Issues Warrants Reopening ML20054G0171982-06-15015 June 1982 Contention 50 Re Brown & Root Deficiencies in Quadrex Rept. Certificate of Svc Encl ML20053D0861982-05-24024 May 1982 Response in Opposition to Util 820519 Motion to Strike Doherty Contention 58 Re Applicant Conduct on Reporting Violations.Contention Should Be Treated as Such,Not as Motion.Certificate of Svc Encl.Related Correspondence ML20052H8621982-05-19019 May 1982 Motion to Strike J Doherty Reply to Applicant 820507 Response to Doherty 820422 Motion to Add Contention 58. Commission Rules Do Not Allow Reply.Certificate of Svc Encl ML20052H4441982-05-14014 May 1982 Reply Opposing Applicant 820507 Response to J Doherty 820422 Motion to Add Contention 58.Contention Should Be Admitted W/Amends.Aslb Should Judge Conduct of Applicants. Certificate of Svc Encl ML20052F3121982-05-0707 May 1982 Response Opposing J Doherty 820422 Motion to Add Contention Re Alleged Failure to Rept Design Defects.Substantively, Motion Is Motion to Reopen Record & Stds Have Not Been Met. Certificate of Svc Encl ML20052D1221982-04-29029 April 1982 Findings of Fact on Supplemental Issues to Tx Pirg Addl Contention 31 Re Technical Qualifications.Certificate of Svc Encl ML20052A4541982-04-22022 April 1982 Submittal of Contention 58 Re Applicant Conduct on Reporting Violations at Plant.Certificate of Svc Encl ML20054E0561982-04-21021 April 1982 Supplemental Findings of Fact on Tx Pirg Addl Contention 31 Re Technical Qualifications.Certificate of Svc Encl ML20050J1111982-04-0606 April 1982 Answers to Second & Third Sets of Interrogatories,Questions 29 & 8 Respectively,Re Quadrex Rept.Certificate of Svc Encl. Related Correspondence ML20050E2961982-04-0505 April 1982 Answers & Objections to Seventh Set of Interrogatories. Certificate of Svc Encl.Related Correspondence ML20050E2891982-04-0505 April 1982 Answers & Objections to Doherty Sixth Set of Interrogatories.Related Correspondence ML20050C4211982-04-0202 April 1982 Objections to Request for Admissions.Requests Untimely, Irrelevant to Issues Before ASLB & Extremely & Unduly Burdensome.Certificate of Svc Encl.Related Correspondence ML20050C4081982-03-31031 March 1982 Answers & Objections to Fifth Set of Interrogatories. Certificate of Svc Encl.Related Correspondence ML20050C4791982-03-29029 March 1982 Answers & Objections to Jf Doherty Fourth Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Matters. Certificate of Svc Encl.Related Correspondence ML20042C6181982-03-29029 March 1982 Response Opposing J Doherty 820315 Motion for ASLB to Subpoena Quadrex Corp Employee Witnesses as ASLB Witnesses. Request Is Based on Misperception of Scope of Reopened Hearings.Certificate of Svc Encl ML20042C6431982-03-29029 March 1982 Motion for ASLB to Call DE Sells as Witness for Tx Pirg Addl Contention 31 & Quadrex-related Matters.Testimony Needed to Explain Why NRC Did Not Immediately Obtain Quadrex Rept. Certificate of Svc Encl ML20050C5091982-03-26026 March 1982 Response to Jf Doherty 20th & 21st Requests for Documents. Certificate of Svc Encl ML20050C5041982-03-26026 March 1982 Testimony of Lj Sas on Tx Pirg Addl Contention 31 Re Quadrex Rept.Rept Raises No Issue as to Whether Ebasco Can Properly Engineer Project.Prof Qualifications Encl ML20050C5011982-03-26026 March 1982 Supplemental Testimony of Jh Goldberg on Technical Qualifications.Brown & Root Terminates Due to Lack of Engineering Productivity,Not Due to Allegations in Quadrex Rept ML20042C5201982-03-25025 March 1982 Motion to Compel Discovery from Applicant & to Postpone Evidentiary Presentations at 820412 Hearings.Applicant Objections to Interrogatories Unsupported & Necessitate Hearings Be Delayed.Certificate of Svc Encl ML20049K0671982-03-25025 March 1982 Reply to Tx Pirg 820315 Addl Proposed Findings of Fact & Conclusions of Law.Certificate of Svc Encl ML20049K0801982-03-25025 March 1982 Answers & Objections to Interrogatories.Certificate of Svc Encl ML20042C5481982-03-23023 March 1982 Fourth Set of Requests for Admissions Re Quadrex Rept & Tx Pirg Contention 31.Certificate of Svc Encl ML20049K0841982-03-23023 March 1982 Answers & Objections to Third Set of Interrogatories. Certificate of Svc Encl ML20049K0941982-03-23023 March 1982 Answers & Objections to Second Set of Interrogatories. Certificate of Svc Encl ML20042A4791982-03-17017 March 1982 Response Opposing J Doherty 820310 Motion for Postponement of 820412 Hearings.Sufficient Grounds Not Provided to Justify Delay.Certificate of Svc Encl ML20042B2351982-03-17017 March 1982 Seventh Set of Interrogatories Re Tx Pirg Addl Contention 31 & Quadrex Rept Matters.Certificate of Svc Encl ML20042B2381982-03-15015 March 1982 Sixth Set of Interrogatories Re Tx Pirg Addl Contention 31 & Quadrex Rept Matters.Certificate of Svc Encl.Related Correspondence ML20042B2451982-03-15015 March 1982 Motion for Subpoena of Quadrex Corp Employees.Testimony Necessary for Clear Understanding of Brown & Root Deficiencies Despite Util Supervision & Specific Steps Needed to Correct & Prevent Problems.W/Certificate of Svc ML20041F0761982-03-10010 March 1982 Fourth Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Rept.Certificate of Svc Encl.Related Correspondence ML20041F0871982-03-10010 March 1982 Motion for Postponement of 820412 Hearing on Tx Pirg Addl Contention 31 & Quadrex-related Matters.Addl Time Needed to Complete Discovery.Certificate of Svc Encl ML20049J6571982-03-0808 March 1982 Answers to First Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Matters.Certificate of Svc Encl ML20041E1001982-03-0505 March 1982 First Set of Interrogatories & Request for Production of Documents.Certificate of Svc Encl ML20041E1071982-03-0505 March 1982 First Set of Interrogatories & Request for Production of Documents Re Tx Pirg Contention 31.Certificate of Svc Encl ML20041E1181982-03-0505 March 1982 Third Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Rept Matters.Related Correspondence ML20041E1201982-03-0505 March 1982 Motion for Order Directing Applicant to Provide Forthcoming Bechtel Quadrex Rept Review.Rept Pertinent to Remaining Issue.Certificate of Svc Encl.Related Correspondence ML20041E1741982-03-0505 March 1982 Brief Opposing R Alexander Appeal from ASLB 820112 Order Denying Petition to Intervene.Aslb Did Not Abuse Discretion in Denying Petition.Certificate of Svc Encl ML20041E0711982-03-0404 March 1982 Second Set of Interrogatories Re Tx Pirg Contention 21 & Quadrex Rept Matters.Certificate of Svc Encl.Related Correspondence ML20049H8881982-03-0101 March 1982 Response Opposing D Marrack 820213 Motion for Review of Dates for Reopening Hearings & Continuance.No Commission Regulations or Atomic Energy Act Provisions Require Applicant Irrevocable Commitment.Certificate of Svc Encl ML20041B5381982-02-22022 February 1982 Reply to Intervenors Proposed Findings of Fact & Conclusions of Law.Certificate of Svc Encl ML20041C0671982-02-22022 February 1982 Response Opposing Tx Pirg 820209 Motion for Addl Time to File Proposed Findings of Fact & Conclusion of Law.Motion Mooted by Tx Pirg Filing Proposed Findings on 820212. Certificate of Svc Encl ML20041B5421982-02-17017 February 1982 First Set of Interrogatories Re Tx Pirg Contention 31 & Quadrex Matters.Certificate of Svc Encl.Related Correspondence 1982-07-02
[Table view] Category:PLEADINGS
MONTHYEARML20063N7471982-10-0606 October 1982 Motion for Termination of Proceedings.Util Decided to Cancel Plant.Certificate of Svc Encl ML20054L4521982-07-0202 July 1982 Response Opposing J Doherty 820615 Motion to Reopen Record to Add Contention 59.Motion Fails to Establish Timeliness &/Or Significance of Issues Sought to Be Raised.Certificate of Svc Encl ML20054L5531982-07-0202 July 1982 Response Opposing Doherty 820615 Motion to Reopen Record to Add Contention 59.Motion Should Be Considered Motion for Reconsideration of ASLB 820602 Order.Timeliness & Significance of Issues Not Established.W/Certificate of Svc ML20054J9371982-06-28028 June 1982 Response Opposing J Doherty 820615 Request to Reopen Record. Request Improper & Insufficient to Support Relief.Commission Rules Cannot Be Circumvented by Refiling Same Argument After ASLB Ruling Issued.Certificate of Svc Encl ML20054F9861982-06-15015 June 1982 Motion to Reopen Record to Take Evidence on Contention 59. Gravity of Issues Warrants Reopening ML20053D0861982-05-24024 May 1982 Response in Opposition to Util 820519 Motion to Strike Doherty Contention 58 Re Applicant Conduct on Reporting Violations.Contention Should Be Treated as Such,Not as Motion.Certificate of Svc Encl.Related Correspondence ML20052H8621982-05-19019 May 1982 Motion to Strike J Doherty Reply to Applicant 820507 Response to Doherty 820422 Motion to Add Contention 58. Commission Rules Do Not Allow Reply.Certificate of Svc Encl ML20052H4441982-05-14014 May 1982 Reply Opposing Applicant 820507 Response to J Doherty 820422 Motion to Add Contention 58.Contention Should Be Admitted W/Amends.Aslb Should Judge Conduct of Applicants. Certificate of Svc Encl ML20052F3121982-05-0707 May 1982 Response Opposing J Doherty 820422 Motion to Add Contention Re Alleged Failure to Rept Design Defects.Substantively, Motion Is Motion to Reopen Record & Stds Have Not Been Met. Certificate of Svc Encl ML20042C6181982-03-29029 March 1982 Response Opposing J Doherty 820315 Motion for ASLB to Subpoena Quadrex Corp Employee Witnesses as ASLB Witnesses. Request Is Based on Misperception of Scope of Reopened Hearings.Certificate of Svc Encl ML20042C6431982-03-29029 March 1982 Motion for ASLB to Call DE Sells as Witness for Tx Pirg Addl Contention 31 & Quadrex-related Matters.Testimony Needed to Explain Why NRC Did Not Immediately Obtain Quadrex Rept. Certificate of Svc Encl ML20042C5201982-03-25025 March 1982 Motion to Compel Discovery from Applicant & to Postpone Evidentiary Presentations at 820412 Hearings.Applicant Objections to Interrogatories Unsupported & Necessitate Hearings Be Delayed.Certificate of Svc Encl ML20042A4791982-03-17017 March 1982 Response Opposing J Doherty 820310 Motion for Postponement of 820412 Hearings.Sufficient Grounds Not Provided to Justify Delay.Certificate of Svc Encl ML20041F0871982-03-10010 March 1982 Motion for Postponement of 820412 Hearing on Tx Pirg Addl Contention 31 & Quadrex-related Matters.Addl Time Needed to Complete Discovery.Certificate of Svc Encl ML20041E1201982-03-0505 March 1982 Motion for Order Directing Applicant to Provide Forthcoming Bechtel Quadrex Rept Review.Rept Pertinent to Remaining Issue.Certificate of Svc Encl.Related Correspondence ML20041E1741982-03-0505 March 1982 Brief Opposing R Alexander Appeal from ASLB 820112 Order Denying Petition to Intervene.Aslb Did Not Abuse Discretion in Denying Petition.Certificate of Svc Encl ML20049H8881982-03-0101 March 1982 Response Opposing D Marrack 820213 Motion for Review of Dates for Reopening Hearings & Continuance.No Commission Regulations or Atomic Energy Act Provisions Require Applicant Irrevocable Commitment.Certificate of Svc Encl ML20041C0671982-02-22022 February 1982 Response Opposing Tx Pirg 820209 Motion for Addl Time to File Proposed Findings of Fact & Conclusion of Law.Motion Mooted by Tx Pirg Filing Proposed Findings on 820212. Certificate of Svc Encl ML20041B5901982-02-13013 February 1982 Motion for Postponement of All Action on CP Application Until Applicant States That Util Irrevocably Committed to Building Plant If CP Received.Certificate of Svc Encl ML20040H0761982-02-0909 February 1982 Motion for 30 Addl Days to File Proposed Findings of Fact & Conclusions of Law.Length of Record Necessitates Extension. Decision Would Not Be Delayed Since Addl Hearings to Be Held in Apr 1982 ML20040E2781982-01-29029 January 1982 Requests for Clarification Re R Alexander 811130 Petition to Intervene.J Silberg 820122 Ltr Indicates That Order Denying Petition Issued,But No Order Has Been Served.Certificate of Svc Encl ML20039B7481981-12-17017 December 1981 Response Opposing Tx Pirg 811207 Motions for Addl Testimony, Further Development of Record & Admission of New Contention. Motion Superficial Attempt to Delay Proceeding & Totally Devoid of Merit.Certificate of Svc Encl ML20062M6441981-12-14014 December 1981 Response Opposing Doherty 811015 Renewed Motion for Addl Evidence on Tx Pirg Contention 31.Doherty Failed to Comply W/Aslb 811110 Order.Motion Is W/O Merit & Would Cause Unnecessary Delay.Certificate of Svc Encl ML20062M6241981-12-0707 December 1981 Motion for Tx Pirg to Present Addl Evidence,To Order Applicant to Serve Tx Pirg W/Quadrex Rept & to Rule That Need for Power Is Tx Pirg Contention.Alternatively,Requests Admittance as Tx Pirg Contention.W/Certificate of Svc ML20039B0771981-12-0707 December 1981 Renewed Motion for Addl Evidence on Tx Pirg Addl Contention 31 Re Applicant Technical Qualifications.Specifies Portions of Quadrex Rept,Indicating Organizational Changes That Should Be Made.Certificate of Svc Encl ML20038A8841981-11-20020 November 1981 Response Opposing Doherty 811106 Motion for Addl Testimony on Need for Power.Pleading Construed as Motion to Reopen Record.Burden of Explaining Why ASLB Would Reach Different Result Not Met.W/Certificate of Svc.Related Correspondence ML20010F4791981-09-0303 September 1981 Response Opposing Further Consideration of Radon Releases. NRC Analysis of Radon Releases in Final Suppl to Fes Satisfies NEPA Requirements,Complies W/Commission 780414 Order & Supplies Sufficient Info.Certificate of Svc Encl ML20010G1101981-09-0303 September 1981 Response to ASLB Request Re Positions on ALAB-640.Radon Emissions Determined by ALAB-640 Constitute Significant Addl Environ Impact.Certificate of Svc Encl ML20010A1171981-08-0505 August 1981 Motion to Strike Marrack Prefiled Testimony.Testimony Is Not Specifically Responsive to F Sanders 810205-06 Testimony. Certificate of Svc Encl.Related Correspondence ML20009B2031981-07-0707 July 1981 Response in Opposition to Intervenor Doherty 810622 Request for Leave to File Contention 57.No Good Cause Shown for Late Filing & No Specificity Provided.W/Science News Article & Certificate of Svc ML20005B3801981-06-22022 June 1981 Request for Leave to File & Submission of Contention 57 Re Vulnerability of Control Sys to Electromagnetic Pulses. Issue Has Not Been Made Public Until Recently.W/Certificate of Svc ML19347F4941981-05-0808 May 1981 Reply Opposing Doherty 810423 Filing Re Contention 56, If Filing Is Motion to Add Late Filed Contention. Contention Refs Alleged Problem at Browns Ferry Which Is Not Applicable to Mark III Containments.W/Certificate of Svc ML19347F4661981-05-0808 May 1981 Response Opposing Doherty 810423 Motion to Reopen Record on Need for Power Contention.Aslb Should Issue Order That Motion Is Moot & Direct Applicant to Update Testimony on Need for Power Testimony Later.Certificate of Svc Encl ML20003H9551981-04-29029 April 1981 Motion for Order Adopting Specific Procedures to Govern Conduct of cross-examination During Health & Safety Phase of Proceeding.Procedures Will Ensure cross-examination Not Cumulative.W/Proposed Order & Certificate of Svc ML19343D3891981-04-27027 April 1981 Motion to Strike I Bross 810331 Affidavit.Affidavit Does Not Respond to Ld Hamilton Supplemental Affidavits But Constitutes Personal Attack of Affiant.Certificate of Svc Encl.Related Correspondence ML20126J9451981-04-24024 April 1981 Motion Opposing Applicant 810422 Motion to Preclude Jm Scott Testimony.Tx Pirg & Intervenor Doherty Are Separate Parties ML20003H7981981-04-22022 April 1981 Motion for Addl Testimony & cross-examination on Conservation Techniques,Interconnection & Effects of Const Delay.Proceedings Have Not Addressed These Issues. Certificate of Svc Encl ML20003H7471981-04-22022 April 1981 Motion to Preclude Jm Scott Testimony.Intent of ASLB 810407 Order Was to Preclude Scott from Having Dual Role of Atty & Witness for Any Other Party.Certificate of Svc Encl. Related Correspondence ML20126H9601981-04-0707 April 1981 Request for Order Directing Util to Reissue 810331 Pleading W/Correct Title.Defective Title Did Not Put All Parties on Notice ML20126H9641981-04-0707 April 1981 Response in Opposition to Util & NRC 810330 Motions to Disqualify Tx Pirg Counsel,Jm Scott.Counsel Will Appear as Expert Witness.Public Interest Requires Counsel Presence. Certificate of Svc Encl ML19347D9721981-03-31031 March 1981 Response to NRC & Applicant Responses to J Doherty 810222 Motion for Reconsideration of Admission of Contention 21. Filing of Motion Was Timely Under Circumstances. Certificate of Svc Encl ML19345G4941981-03-30030 March 1981 Brief,In Form of Pleading,Addressing Need to Disqualify Tx Pirg Counsel Per Disciplinary Rules 5-101 & 5-102.Having Chosen to Appear as Witness,Scott Should Be Barred from Participation as Atty.Certificate of Svc Encl ML19345G5831981-03-24024 March 1981 Response for Order Allowing Intervenors to File Id Bross Supplemental Affidavit to Respond to Ld Hamilton Affidavit on Behalf of Util.One Day Delay Should Be Excused Due to Intervenor Attempt to Comply W/Rules.W/Certificate of Svc ML20003D2161981-03-0404 March 1981 Response Opposing Tx Pirg 810217 Motions on Procedural Matters,Referral of Interlocutory Appeal,Certification of Various Issues & Removal of Aslb.Motion Contains Misrepresentations of Alab Rulings.W/Certificate of Svc ML19341D4801981-02-25025 February 1981 Response to Intervenor Doherty Third Supplemental Response to Motion for Summary Disposition.Intervenor Has No Right to File Late Responses,Shows No Good Cause & Info Has No Relationship to Affected Contentions.W/Certificate of Svc ML20003C3161981-02-17017 February 1981 Requests to ASLB for Interlocutory Appeal & Certification of Questions & to ASLAP for Direct Certification of Question Re Ability of Intervenors to cross-examine Witnesses. Certificate of Svc Encl ML20003B0771981-02-0505 February 1981 Response in Opposition to Intervenor Jf Doherty Contention 55.Contention Does Not Address 10CFR2.714 Requirements & No Good Cause Established for Late Filing.Certificate of Svc Encl ML19345E8521981-01-30030 January 1981 Suppl to 810129 Motion Requesting Reversal of 810123 Ruling Denying Intervenor Rentfro cross-examination Opportunity.Evidence Supporting Intervenor Discernible Interest in Issues Outlined.W/Certificate of Svc ML19345E5721981-01-29029 January 1981 Requests ASLB Reconsider Ruling Restricting cross-examination,for Interlocutory Appeal & Certification of Questions.Also Moves Aslab for Directed Certification of Questions & Appointment of New Aslb.W/Certificate of Svc ML19341B6021981-01-29029 January 1981 Response Opposing Intervenor Doherty 810123 Motion to Change Cross Examination Procedures.Repetitious cross- Examination Would Be Avoided If All Intervenors Attended All Proceedings.Certificate of Svc Encl 1982-07-02
[Table view] |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOA"_"
In the Matter of: )
)
HOUSTON LIGHTING & POWER COMPANY ) Docket No. 50-466
)
(Allens Creek Nuclear Generating )
Station, Unit No. 1) )
)
APPLICANT'S RESPONSE TO BRIEF AMICUS CURIAE OF NATURAL RESOURCES DEFENSE COUNCIL AND INSTITUTE FOR PUBLIC REPRESENTATION IN SUPPORT OF APPEAL OF THE NATIONAL LAWYERS GUILD Jack R. Newman Harold F. Reis Robert H. Culp 1025 Connecticut Avenue, N.W.
Washington, D. C. 20036 J. Gregory Copeland Charles G. Thrash 3000 One Shell Plaza Houston, Texas 77002 Attorneys for Applicant HOUSTON LIGHTING & POWER COMPANY OF COUNSEL:
LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 2356 n71U i 1025 Connecticut Avenue, N.W.
Washington, D. C. 20036 BAKER & BOTTS 3000 One Shell Plaza Houston, Texas 77002 7906080(S0
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of: )
)
HOUSTON LIGHTING & POWER COMPANY ) Docket No. 50-466
)
(Allens Creek Nuclear Generating )
Station, Unit No. 1) )
)
APPLICANT'S RESPONSE TO BRIEF AMICUS CURIAE OF NATURAL RESOURCES DEFENSE COUNCIL AND INSTITUTE FOR PUBLIC REPRESENTATION IN SUPPORT OF APPEAL OF THE NATIONAL LAWYERS GUILD I. INTRODUCTION Applicant files this response to the brief amicus curiae of the Natural Resources Defense Council (NRDC) and Institute for Public Representation (INSPIRE) in support of the appeal of the Houston Chapter of the National Lawyers Guild (NLG) in this proceeding.
II. BASIC AUTHORITY This response is brief because Applicant has no quarrel as to the scope of the relevant case law as cited in the amicus brief. NRDC-INSPIRE have stated correctly that in determining questions of interest or standing, NRC boards are to apply " contemporaneous judicial concepts of standing."
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The cases they cite-1/ as representative of those " concepts" are, in fact, the body of controlling authority.-2/
Sierra Club v. Morton, establishes a two-fold standing test which later cases have construed and refined: (1) the action challenged must give rise to an injury within the
" zone of interests" sought to be protected by the statute or regulation involved; and (2) this injury must constitute an " injury in fact."
III. INJURY IN FACT Passing for the moment the " zone of interests" issue, the question posed by NLG's refusal to identify one or more of its members who may be affected by ACNGS is whether, in the absence of such an identification, it is possible for the agency to reach a well-founded conclusion regarding the existence of an " injury in fact."
NRDC-INSPIRE cite cases for the proposition that the courts have not required such an identification of members.
But in none of these cases was the identification of members at issue. This may possibly be explained by the assumption 1/ Sierra Club v. Morton, 405 U.S. 727 (1972); Warth v. Seldin, 422 U.S. 490 (1975); Hunt v. Washington Apple Advertising Commission, 432 U.S. 333 (1977).
2/ Cf. Health Research Group v. Kennedy, C.A. No. 77-0734 (D.D.C., filed Aarch 13, 1979), infra.
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of the parties that such identification could easily be obtained in view of the nature of the organizations involved.
Thus, Sierra Club is a national organization with a well established national constituency.-3/ Likewise, there could exist no question as to the " membership" of the Washington Apple Advertising Commission--all growers were required to pay dues to the organization and elected the Commission's members.-4/
The National Lawyers Guild presents a different cnd more difficult problem which is discussed in Part IV, below. For present purposes we simply note the statement of NRDC-INSPIRE that:
"If all members from whom standing is derived were to resign the NLG would no longer have standing to intervene. So long as injured persons remain members, tne NLG has standing..."
(NRC-INSPIRE Brief, p. 12).
NRDC-INSPIRE is right; and we submit that, without some iden-tification, it is not possible for the ASLB or the Appeal Board to know whether, as of the date they speak, the NLG has members in good standing within the " geographic zone of interest."
As a practical matter, this leaves the agency without any means of ascertaining the existence of an " injury in fact."
3/ Sierra Club v. Morton, supra.
4/ Hunt v. Washington Apple Advertising Commission, supra; See Health Research Group v. Kennedy, supra, p. 2.
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IV. THE ZONE OF INTERESTS This problem becomes more acute where, as here, the interests sought to be protected by the organization are not 5/
" germane to the organization's purpose."~ NLG describes its purpose as follows:
The objects of the Petitioner organization include the following:
- a. To aid in making the United States and the State Constitutions, the law and the administrative and judicial agencies of the government responsive to the will of the American people;
- b. To protect and foster our democratic institutions and the civil rights and liber-ties of all the people;
- c. To promote justice in the administration of the law;
- d. To keep the people informed upon legal matters affecting the public interest;
- e. To encourage, in the study of the law, a consideracion of the sccial and economic aspects of the law. 6/
-5/ Hunt v. Washington Apple Advertising Commission, supra , at 343, established a three-fold test for standing:
"Thus we have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have stand-ing to sue in their own right; (b) the interests it seeks to protect are germane to the organiza-tion's purpose; ana (c) neither the claira asserted, nor the relief requested, requires that participa-tion of individual members in the lawsuit."
(Emphasis added.)
-6/ Petition for Leave to Intervene of Houston Chapter, National Lawyers Guild, p. 1 (Oc t . 11, 1978).
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NLG's primary purposes obviously relate to the protection of civil liberties and that is the thrust of one of their major 7/
contentions, if not the thrust of their entire intervention.-
That generally stated concern that operation of nuclear power plants may entail curtailment of civil liberties is clearly not sufficiently specific to constitute a contention which may be adjudicated in a construction permit proceeding. That con-cern is best considered "in the less formal atmosphere of a rulemaking proceeding."-8/
We turn then to NLG's environmental and safety issues.
Without expressing a view as to the merits of NLG's conten-tions in this regard, their subject matter relates to interests protected by NEPA and the Atomic Energy Act. But there is not a word in the NLG's description of its purposes to sug-gest that these issues bear the remotest relationship to the organization's purposes. It thus seems clear that NLG is, at 7/ NLG's representative stated at the prehearing conference:
Mr. Vomacka: As I said, our essential contention, the one we're most interested in is the one concern-ing the possibilities of surveillance, harrassment and that sort of thing.
Our feeling about that is that our essential contention is that building or operating this plant is going to result in those kinds of activities. ...
Tr. 621, See, generally Tr. 613-629.
8/ See Allied-General Nuclear Services (Barnwell Fuel Receiv-ing and Storage Station), LBP-76-12, 3 NRC 277, 286 (1976);
aff'd, ALAB-328, 3 NRC 420 (1976).
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best, doing little more than attempting to act as attorney for some portion of its unidentified alleged members who may be aggrieved. The organization thus fails the second standard enunciated in the Hunt case, supra, that "the interests [the organization] seeks to protect [must be] germane to the organ-ization's purpose."
Since the essential elements of its claim to standing rest on such a fragile foundation, it becomes crucial that NLG identify the aggrieved members wnose interests support the petition for leave to intervene to verify that they have authorized this action based on their alleged interests and for the members to identify the specific civil liberties they believe to be endangered. Unless taere are ans.ers to these funcamental inquiries, NLG is an uncertain commodity--an attorney purporting to represent a client with no identified relevant interest of its own.
NRDC-INSPIRE states correctly that: " Underlying the Supreme Court's analyses of standing is the constitutional requirement that the Court consider only actual ' cases or controversies'" (Brief, p. 10). But how can the agency in the totality of circumstances here present (the nature and special purposes of the organization; the failure to identify members; the absence of any authorization from the aggrieved members or the governing body of the organization) deternine whether there is a real party in interest? Is there a party who can be counted on to bring that " concrete adverseness" 2356 077
which " sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions"?-9/
Finally, a word on the constitutional issue discussed briefly at pp. 14-16 of the amicus brief. Again, we are in agreement that the relevant authority is NAACP v. Alabama, 357 U.S. 459 (1958) in whicn, as NRDC-INSPIRE ctates, the holding is tnat "unless there is a compelling state interest, an organization may not be forced to disclose its membership list."
It should be first understood that neither the Board nor any party has sought NLG's membership list, but rather the iaentity of a single individual aggrieved member--sought not to harass or intimidate but rather for the compelling reason of protecting the agency's processes against abuse and assuring reasoned decision-making. We see no assault on the constitu-tional rights of any person and, even assuming in principle a very minor compromise of those rights, the balance in our view weighs heavily in favor of informed agency decision making.
~9/ Baker v. Carr, 369 U.S. 186, 204 (1962). The same prin-ciple, of course, applies in NRC proceedings where the Commission has observed that:
The functional need for well defined and specific interests, which will lend con-crete adversity to the decision-making process, applies as directly to our licens-ing review as it would to a federal lawsuit.
Edlow International Co., CLI-76-6, 3 NRC So3, 570 (1976).
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V. CONCLUSION NRDC-INSPIRE states that an NLG member is subject to the same injury whether she is " Jane Doe" or " Jane Thompson"--
that may be true and perhaps enough if either person were identified as a member of NLG. But, by NLG's choice, that is not to be the case here. One must look elsewhere for those indicia of concrete adverseness which might otherwise assure that "it is the injured party, and not merely a well-intentioned 10/
advocate, who is, at least in effect, before the Court." That matter remains under a cloud given the divergence between the organization's purposes and the issues it seeks to litigate in this proceeding. One is lef t without the assurances which the Courts require to:
". . . helps insure, not only that the party before the Court be a competent and effective advocate on the issues presented, but also that the members of the piaintiff organization have had an opportunity to influence their representatives on positions related to the particular member injury at issue." Id.
The NLG appeal should be denied.
10f Health Group, supra, fn. 2. 2356 079
~ .
Respectfully submitted,
%A/ .
W
/
' Jack R. Newman
/ '
' Harold F. Reis Robert H. Culp 1025 Connecticut Avenue, N.W.
Washington, D. C. 20036 J. Gregory Copeland Charles G. Thrash 3000 One Shell Plaza Houston, Texas 77002 Attorneys for Applicant HOUSTON LIGHTING & POWER COMPANY OF COUNSEL:
LONENSTEIN, NEGiAN , REIS, AXELRAD & TOLL 1025 Connecticut Avenue, N.W.
Wasnington, D. C. 20036 BAKER & BOTTS 3000 One Shell Plaza Houston, Texas 77002 2356 080 Date: March 28, 1979