ML19289F386

Request by Util That Two 790312 Motions Be Found Untimely: NRDC Motion to File Brief Amicus Curiae & Joint Motion for Extension to File Brief Amicus Curiae by NRDC & Inst for Public Representation.Certificate of Svc Encl

ML19289F386
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	03/16/1979
From:	Culp R, Newman J, Reis H LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:
References
NUDOCS 7906070307
Download: ML19289F386 (8)

Text

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NRC p March 16, 1979 th t, l$. Ct.i Q y Q,

UNITED STATES OF AMERICA

/ NUCLEAR REGULATORY COMMISSION T' ,BEFORE THE ATOMIC GAFETY AND LICENSING APPEAL BOARD w

n the Matter of: )

)

HOUSTON LIGHTING & POWER COMPANY ) Docket No. 50-466

)

(Allens Creek Nuclear Generating )

Station, Unit 1) )

APPLICANT'S OPPOSITION TO MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND JOINT MOTION FOR EXTENSION OF TIME TO FILE ANOTHER BRIEF AMICUS CURIAE There are pending before this Appeal Board eight appeals from an order of the Licensing Board denying petitions for leave to intervene in this proceeding. There is also pending a petition for dLrected certification filed by the Texas Public Interest Research Group (TexPirg) concerning restric-tions on admissible contentions imposed by the Licensing Board. In an order dated March 5, 1979, the Board referred to its receipt of the appeals and to the fact that the time to '-

file the appeals had expired on February 27, 1978. The order directed that, if the Applicant, Houston Lighting & Power Company (HL&P), and the NRC Staff desired to file briefs in response to the appeals, those briefs should be filed on or before March 19, 1979. The Board also directed the Applicant and the NRC Staff to file their responses to the certification petition on or before March 19, 1979, separately from their briefs on the appeals.

2231 189 79060708(3'l

On March 15, Applicant received the following pleadings, each dated March 12, 1979:

(1) " Joint Motion of Institute for Public Representation and Natural Resources Defense Council for Extension of Time to File Brief Amicus Curiae";

(2) " Natural Resources Defense Council Motion for Leave to File Brief Amicus Curiae"; and (3) " Natural Resources Defense Council Brief Amicus Curiae in Support of Directed Certification." 1/

Item No. 1 above is a request for an extension of time to file a brief with respect to one of the numerous issues presented to the Appeal Board in the instant appeals. The issue relates to the necessity of the National Lawyers Guild to disclose names and addresses of members in order to sup-l port its petition to intervene. Item No. 2 is a request for i

leave to file a brief amicus curiae with respect to the restrictions imposed by the Licensing Board on admissible n

I contentions--the subject matter of the TexPirg petition for directed certification. HL&P opposes both motions for ,

{ the reasons set forth below. Item No. 3 is the brief

'I amicus curiae concerning those restrictions, for which leave to file is sought. That brief is referred to below also..

f l/ Counsel was advised by telephone on March 15, 1979, that the third document had been mistitled, and that the title should have read, " Natural Resources Defense Council Brief Amicus Curiae in Support of TexPirg's Position Supporting Appeals."

2231 190

1. The Joint Motion for an extension of time to file brief amicus curiae.

This motion is untimely, and no valid excuse for such untimeliness has been suggested. The appeal to which the extension of time request is addressed had to be filed no later than February 27, 1979. The Appellants' briefs had to be filed at the same time. 10 CFR S 2.714a. Under section

2. 715 (b) an amicus curiae brief must be filed "within the time allowed to the party whose position the brief will support . . . " unless "otherwise provided by the Commission or the Appeal Board . . . . Even if the joint motion should be viewed as a request that the Appeal Board provide "otherwise," it should have been filed prior to the time the brief was due. Boston Edison Company (Pilgrim Nuclear p'

Station), ALAB-74, 5 AEC 308 (1972); see also, Louisiana

.' P. & L. Co. (Waterford Steam Electric Station, Unit 3), , y ALAB-ll7, 6 AEC 261 (1973). Thus the request for an hF extention of time should have been made no later than km

February 26. The fact that experienced counsel were involved -

in other proceedings before this Commission does not justify l their failure to have made at least a simple request for

an extension of time.

I 2. Natural Resources Defense Council Motion.

} The provision of the regulations relating to briefs amicus curiae, 10 CFR S 2.715 (d) , applies only to matters 223l l91

"taken up by the Appeal Board on appeal or sua sponte, . . . ."

It does not apply to a petition for directed certification.

We do not know whether the change in title of the document sought to be filed from one "in Support of Directed Certifi-cation" to one "in Support of TexPirg's Position Supporting Appeals" is a belated attempt to comply with the regulation.

In any event, we submit that the change in title does not change the substance of what is being sought. In addition, this motion for leave to file an amicus curiae brief is untimely for the same reasons the extension motion is untimely.-2/ In these circumstances, we believe that the y

filing of Item No. 3, the brief amicus curiae, concurrently with the motion to permit its filing was inappropriate--

Whatever might be appropriate in other circumstances.

If, notwithstanding what has been said above, the Appeal e.

- Board accepts the brief, we hope it will afford Applicant .

an opportunity to file an appropriate response. At this time, we believe it is enough to state that the brief signi-p .

ficantly mischaracterizes the record concerning the notice b

In this connection, we note that the motion for leave to

, -2/

file the amicus curiae brief states that: "This brief i is being submitted at the same time as the brief of petitioner TexPirg whose position it supports." Applicant I has received TexPirg's petition for directed certifica-tion but has not received any "brief of petitioner TexPirg." Nor are we aware of any requireme7t or authori-zation for TexPirg to file a brief.

2231 192

~

the Licensing Board was given of reactivation of the proceeding and the opportunities afforded petitioners to intervene to comply with the provisions of 10 CFR S 2.714 (a) (1) . The jf -

brief contains characterizations of the conduct of HL&P which are also unsupported by the record and are wholly unjustified. In addition, at no point does the amicus brief specify any harm to TexPirg, the party on whose behalf the brief is ostensibly being filed, which would justify inter-locutory review.

. Respectfully submitted, b

Jack R. Newman Harold F. Reis Robert H. Culp 1025 Connecticut Avenue, N.W.

I Washington, DC 20036 t

J. Gregory Copeland Charles G. Thrash h 3000 One Shell Plaza -

Houston, Texas 77002

( '

Attorneys for Applicant HOUSTON LIGHTING & POWER COMPANY OF COUNS."': *

LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL - -

1025 Connecticut Avenue, N.W.

Washington, DC 20036

• BAKER & BOTTS 3000 One Shell Plaza

}

Houston, Texas 77002 k

jV E.g., "the applicant improvidently filed its application prematurely" (p. 4); and "this 17-month hiatus ...

was unconscionable" (p. 5).

2231 193

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) )

CERTIFICATE OF SERVICE I hereby certify that copies of 'hpplicant's Opposition to Motion for Leave to File Brief Amicus Curiac and Joint Motion for Extension of Time to File Another Brief Amicus Curiad' in the above-captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand-delivery this 16th day of March, 1979:

I I Alan S. Rosenthal, Chairman

Atomic Safety and Licensing Appeal Board l U. S. Nuclear Regulatory Commission Washington, DC 20555 L Dr. John H. Buck Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission - ~

1 Washington, DC 20555

>~

Michael C. Farrar Atomic Safety and Licensing Appeal Board IF U. S. Nuclear Regulatory Commission -

Washington, DC 20555 Sheldon J. Wolfe, Esq., Chairman

- ~

Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, DC 20555 j Dr. E. Leonard Cheatum j Route 3, Box 350A i

Watkinsville, Georgia 30677 Mr. Gustave A. Linenberger Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, DC 2055f 2231 194

Chase R. Stephens Docketing and Service Section Office of the Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, DC 20555 R. Gordon Gooch, Esq.

Baker & Botts 1701 Pennsylvania Avenue, NW Washington, DC 20006 Richard Lowerre, Esq.

Assistant Attorney General for the State of Texas P. O. Box 12548 Capitol Station Austin, Texas 78711 Honorable Jerry Silva, Mayor City of Wallis Wallis, Texas 77485

5. .

Honorable John R. Mikeska County Judge, Austin County P. O. Box 310 e,. Bellville, Texas 77481 I

Atomic Safety and Licensing Appeal Board

U. S. Nuclear Regulatory Commission j' Washington, DC 20555 k, - Atomic Safety and Licensing Board Panel h U. S. Nuclear Regulatory Commission n Washington, DC 20555 Steve Schinki, Esq.

Staff Counsel U. S. Nuclear Regulatory Commission __

Washington, DC 20555 f Jean-Claude De Bremaecker 2128 Addison Houston, '2exas 77030 t

John F. Doherty Armadillo Coalition of Texas 4438 1/2 Leeland Hooston, Texas 77023 Madel'ine Bass Framson 2231 195 4822 Waynesboro Drive Houston, Texas 77035

Robert S. Framson 4822 Waynesboro Drive Houston, Texas 77035 Carro Hinderstein 8739 Link Terrace Houston, Texas 77025 Kathryn Hooker 1424 Kipling Houston, Texas 77006 David Marrack 420 Mulberry Lane Bellaire, Texas 77401 Brenda McCorkle 6140 Darnell Houston, Texas 77074 F. H. Potthoff, III 1814 Pine Village Houston, Texas 77080

! Wayne E. Rentfro P. O. Box 1335 l Rosenberg, Texas 77471 James Scott, Jr.

! 8302 Albacore Houston, Texas 77074

?

John R. Shreffler ,,. , _

5014 Braeburn i i t'I Bellaire, Texas 77401 Alan Vomacka, Esq.

Houston Chapter National Lawyers Cuild _ _

4803 Montrose Boulevard Suite 11 Houston, Texas 77006 Anthony Z. Roisman g Natural Resources Defense Council 917 15th Street, NW Washington, DC 20005

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