ML19309F705
| ML19309F705 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 04/28/1980 |
| From: | Woodhead C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8004300403 | |
| Download: ML19309F705 (17) | |
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UNITED STATES OF AMERICA April 28,1980 NUCLEAR REGULATORY C0ff11SSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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HOUSTON LIGHTING & POWER COMPANY
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Docket No. 50-466
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(Allens Creek Nuclear Generating
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Station, Unit 1)
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NRC STAFF RESPONSE TO NEW CONTENTIONS 48 AND 49 AND AN AMENDMENT TO ADMITTED CONTENTION 17 SUBMITTED BY INTERVEN0R JOHN F. DOHERTY By documents dated April 7,1980, Intervenor John F. Doherty filed what are, essentially, two motions to file out-of-time contentions and to amend a contention previously admitted for litigation in this proceeding.
I.
Introduction In support of motions to admit untimely filed contentions, intervenors are required by 10 C.F.R. f 2.714(a)(3) to show that the five factors set out in 10 C.F.R. 52.714(a)(1), on balance, weigh in favor of admission of the late filed contentions.
These five factors which must be considered are:
(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
Although good cause for late filing is not determinative, the failure to show justification for the lateness of the contention increases the burden of supporting the motion by a persuasive showing concerning the remaining four factors.
Nuclear Fuel Services, Inc., (West Valley Reprocessing Plant),
CLI-75-4, 1 NRC 273, 275 (1975); Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 & 2), ALAB-559,10 NRC 162,169 (1979); U.S. ERDA (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 388-89 (1969);
Virginia Electric & Power Co. (North Anna Station, Units 1 & 2), ALAB-289, 2 NRC 395, 398 (1975).
While emphasizing the importance of justifying a late filing with good cause for its tardiness, the Comission has also recognized that Licensing Boards have broad discretion in balancing the considerations set out in the five 4
factors in the circumstances of individual cases. West Valley, suora, at 275.
Thus, each of the five factors will necessarily be considered in the context i
of the particular oroceeding.
A prehearing conference for this proceeding was held October 15-19, 1979.
Dur f ng the conference, those persons previously admitted as parties as well as petitioners to intervene were given opportunity to provide additional argument
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' and bases to support previously submitted contentions. At the conference, many contentions were admitted by the Board after stipulation to the con-tentions by the Staff and Applicant. The Board's ruling on the remaining contentions and petitions to intervene issued March 10, 1980. Since that date, Mr. Doherty has continued to submit contentions.
To date,18 parties and more than 90 contentions and Board questions have been admitted to this proceeding which was initially noticed in May,1978.
It is within this particular franework that untimely filings must be considered.
II.
Mr. Doherty's Motions Doherty Contention 17 was admitted by the Board at the October 15-19, 1979 prehearing conference, as noted in the Board's Order of November 19, 1979.
Contention 17 reads as follows:
Intervenor contends pressure from blowdown following a power excusion accident (PEA), Loss of Cooland Accident (LOCA) or Power Coolant Mismatch Accident (PCMA) combined with a single or several stuck relief valves may hit the suppression pool with sufficient force to permit escape of radioactive gases by causing cracks in the containment building wall and endanger Intervenor's health and genetic safety interests.
Mr. Doherty wishes to amend this contention to include anticipated transients without scram (ATWS) as part of the series of events to be considered in combination with stuck relief valves since ATWS could subject the valves and
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suppression pool to stresses from reactivity similar to a PEA, and since he has only learned by Staff responses to discovery requests that an ATWS event is not included in analysis of PEA's.
In support of his untimely request for amendment, Mr. Doherty states that the reason ATWS was not originally included in Contention 17 was that he thought he had included it. This statement is numbered (i) and presumably is offered as good cause for lateness. This statement seems to contradict the explanation given to support the amendment, i.e., that at the time he originally filed the contention, he misunderstood the term " PEA" and that Staff discovery responses have relieved him of his misconception.
In any event, neither a plea of misunderstanding of a term nor a mistaken omission of a term in the contention will serve to show good cause for such tardiness.
Mr. Doherty had ample opportunity to ask definition of terms and to discuss this matter at the prehearing conference.
An analogy can be drawn from a ruling in a similar situation that no good cause was shown by a late petition to intervene where ignornace of Comission rules was given as reason for tardiness. Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1 &
- 2) ALAB-341, 4 NRC 95, 96 (1976). The Staff believes that Mr. Doherty has not shown gooo ause for his request to amend his petition, and therefore must show compelling reasons for the admission of the amendment by way of the remaining four factors.
Mr. Doherty states in regard to factor (ii) that there is no other possible means to protect his interest in the subject matter other than an admitted contention concerning ATWS of which he is co-sponsor.
ThisContention(2) states:
The petitioners are not adequately protected against Anticipated Transients Without Scram (ATWS).
The Staff believes that Mr. Doherty has pointed out by reference to this Contention 2, why factor (ii) does not support his late amendment request.
In order to address the above stated Contention 2, the testimony must necessarily include effects of stuck relief valves as well as loads on the suppression pool, with any consequent stress on containment. Thus, not only is Mr. Doherty's interest in this subject protected by another means, the protection is provided by his own contention.
Regarding the extent in factor (iii) that Mr. Doherty's participation may reasonably be expected to assist in developing a sound record, Mr. Doherty states that it would appear unwise to consider PEA's without the ATWS since both involve reactivity effects, and that to exclude ATWS would leave a " hole in the record" on the completeness of safety relief valve protection.
This statement would seem to show that an addition to his cantention would develop a more complete record of various events which c;uld be impacted
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significantly by stuck relief valves were it not for the existing Contention 2.
Thus, as previously explained the record will be completed in the manner Mr. Doherty proposes by litigation of Contention 2.
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For factor (iv) Mr. Doherty states that no other party has raised a contention to include ATNS, but as previously stated, Mr. Doherty has himself raised it.
Lastly, Mr. Doherty states that no delay of proceedings will occur as described in factor (v) since 100 days of discovery remain.
The Staff believes that significant delay could be caused by this amendment since the present discovery process has been addressed to Contention 17 as it now stands and considerable confusion would be created by separating a part of Contention 2 for inclusion in Contention 17.
In sum, the Staff believes that balancing of the five factors shows that Mr. Doherty's untimely request to amend Contention 17 should be denied.
Contention 48 Mr. Doherty wishes to submit a new contention which would require an addition to the Allens Creek plant design consisting of a control rod drive (CRD) return line.
In support of this motion, Mr. Doherty states that this additional source of high pressure water functions as an additional safeguard to core coolant inventory as evidenced by past events at Browns Ferry, Dresden II and Oyster Creek.
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In addressing the five factors regarding late filed contentions, Mr. Doherty states in addressing factor (i) that he was first made aware of the significance of the CRD 1.ine by a Staff letter to Applicant dated March 11, 1980, and that since the Allens Creek PSAR does not indicate a safety significance to this line, that the Intervenor was previously unable to discover the line's importance. Additionally, Mr. Doherty discusses the fact that the CRD return line has been eliminated from the Allens Creek design as a permissible method of eliminating nozzle cracking which has occurred in this line in some operating reactors and is addressed in Staff generic Task A-10.
The Staff believes that good cause has been shown for submission of this contention after the prehearing conference, since the Staff letter indicating the possible back-up safety significance of this line during past occurrences
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at reactors, is of recent issuance and concern. The Staff believes that Mr. Doherty has shown significant new inforrktion, previously unavailable, described as good cause by the Comission in Indiana and Michigan Electric Co., et al. (Donald C. Cook Nuclear Plant, Units 1 & 2) CLI-72-25, 5 AEC 13, 14 (1972).
Cf. Cincinnati Gas & Electric Co., et al. (William H. Zimer Nuclear Station) LBP-80-14,- slip 02. April 22,1980, pp. 5-8.
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Additionally, it has consistently been the Boards' position that significant new information would support intervention and contentions in this proceeding regardless of other limitations imposed in this regard.
See Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1) ALAB-535, 9 NRC 377, 383 (1979); ALAB-539, 9 NRC 422, 423 (1979).
Mr. Doherty states in regard to factor (ii) that since construction of the Allens Creek plant appears to have been approved without this " system" (apparently referring to the return line), that no other means is available to protect his interest in the retention of the return line in the plant design.
The Staff is also of the opinion that no other means is available to explore the possible safety signifuance of the CRD return line in the context of its elimination as one solution to nozzle cracking. Therefore, it appears to the Staff that factor (ii) weighs in favor of admitting this contention even though untimely.
The consideration of factor (iii), i.e., the expectation that Mr. Doherty's
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participation through this contention would assist in developing a sound record does not support this contention's admission since Mr. Doherty does not show any particular expertise in this area.
Mr. Doherty points out that no other party has dealt with this issue (by sub-mitting a contention on the subject) so t'iat his interest in the subject will not be protected by other parties. The Staff believes that factor (iv) weighs in favor of the admission of the contention.
As to the broadening of issues and/or delay of the proceeding described in factor (v), Mr. Doherty states that since this proceeding has "several" safety issues and that since no other party will deal with this issue, he knows of no reason to believe that the proceeding will become unduly delayed or expanded.
It seems clear that the addition of yet another contention will necessarily somewhat expand the issues to be litigated as well as entailing additional discovery, witness preparation and hearing time. But in viewing this factor, delay alone is not intolerable, but rather, the significant point is the particular impact of the delay or broadening of issues.
Public Service Electric
& Gas Co. (Hope Creek Generating Station, Units 1 & 2) LBP-77-9, 5 NRC 474, 477 (1977); USERDA (Clinch River Breeder Reactor Plant) ALAB-354, 4 NRC 383, 395 (1976). Since discovery is still in progress in this proceeding, and no hearing schedule has been set nor is possible to yet establish, the Staff is of the opinion that the impact of some delay and broadening of issues will not be of great 1nportance to the schedule in this proceeding.
In summary, the Staff believes that on balance, the supporting statements pro-vided by Mr. Doherty justify admission of his untimely filed contention 48.
Contention 49 On this contention Mr. Doherty alleges that a " core ladle," a protective device composed of interlocked magnesium bricks beneath the reactor vessel, should be required in the Allens Creek design. The " core ladle" to which Mr. Doherty refers was proposed for the Floating Nuclear Plants design by Offshore Power r
Systems (OPS, and is analyzed in NUREG-0054, the Supplement 3 to the OPS SER.
In support of this assertion Mr. Doherty states that a core ladle should be part of the Allens Creek design because the plant site has no rock substrata and is unique in that it offers no protection as would sites with rock strata.
Additionally, Mr. Doherty states that the " core ladle" concept is supported for all reactor sites by a 1975 article by the American Physical Society in a publication entitled " Reviews of Modern Physics," and because a core ladle would offer several days additional time in which " molten uranium could be prevented from contacting the moist clays and silts of the [Allens Creek site]
where subsequent steam explosions such as described in WASH-1400, " Reactor Safety Study" (page VIII-77, 78) would be likely to occur."
Beyond considerations necessary to address late filings, the conclusive reason for denying admission of this contention is, as clearly illustrated above, that this contention seeks litigation of a Class 9 accident. Comission policy of long standing, prohibiting consideration of Class 9 accidents, was explained in the very 0PS proceeding which Mr. Doherty cites to support his contention.
The Commission policy prohibiting litigation of Class 9 accidents absent unusual circumstances is set out in the decision in Offshore Power Systems (Floating Nuclear Power Plants) CLI-79-9,10 NRC 257 (1975). Most recently the policy has been restated in the Black Fox proceeding. Public Service Co. of Oklahoma et al. (Black Fox Station, Units 1 & 2) CLI-80-8,11 NRC
, slip op_., March 21, 1980, wherein the Commission noted:
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Because the existing policy on Class 9 accidents was not displaced in Offshore Power, and would not be displaced pending generic consideration of Class 9 accident situations in policy development and rulemaking, the Commission envisioned that the staff would bring an individual case to the Commission for decision only when the staff believed that such consideration was necessary or appropriate prior to policy development.
The OPS _ decision, which stated Commission concurrence with the Staff proposal that a Class 9 accident should be considered in relation to the unique situation of a water based plant, nevertheless declined to reconsider the existing policy deeming it more appropriate to complete rulemaking on the subject. OPS at 262.
The Black Fox decision repeats the criteria for waiver of the Commission policy as one where the environmental risk from such an accident, if one occurred, would be substantially greater than that for an average plant. Black Fox, slip op.. at 3.
Additionally, the Commission re-stated its view that the NRC generic policy on Class 9 accidents should not be developed on a case-by-case basis.
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It is clear to the Staff that admission of Mr. Doherty's late filed contention 49 would violate the Commission's clear directives in the two decisions cited above. The Staff has not determined that the Allens Creek plant or site is so exceptional that it should be proposed to the Commission as a situation requiring waiver of the Commission's policy. Therefore, on this basis alone, the untimely contention should be denied.
In proyiding support for this late filed contention, Mr. Doherty states that the good cause for tardiness in factor (i) exists because no " satisfactory" core ladle has been presented until the one for the Floating Nuclear Plant, which, according to Mr. Doherty has just been " presented" by the February,1980 Supplement to the Floating Nuclear Plant SER, (NUREG-0054) which, Mr. Doherty states, was unavailable to him until March 19, 1980.
As previously indicated, the Commission's West Valley decision emphasized that the showing of good cause for late filings is of great, though not dispositive, significance.
In this circumstance, the Staff does not believe that Mr. Doherty has shown good cause for his untimely filing of this contention, since by his own statement, the proposal for core ladles for land based reactors was published in 1975 in the document he cites. Additionally, although Mr. Doherty claims that no " satisfactory" core ladle had been " presented" prior to that described in the OPS SSER, in actuality, the Staff requirement for a core ladle is contained in the 1978 FES III (NUREG-0502) for the Floating Muclear Plant. The SER Supplement of 1980 to which Mr. Doherty refers is not a " presentation" of a core ladle but, rather, the Staff analysis of the core ladle design submitted by OPS. Thus Mr. Doherty's reliance on the above SER supplement will not support his claim of good cause for his untimely contentions. Mr. Doherty could have presented his contention by reference +o both the scientific publication and the OPS FES prior to the prehea;ing conference in this proceeding. Mr. Doherty's argument that good cause for lateness exists in that no " sufficient" core ladle existed prior to that designed for OPS also fails as sufficient reason for delay, since l
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only the design for a core ladle floating plant presently exists. This has not been manufactured nor has it been assessed as one satisfactory for a land j
based plant. Therefore, Mr. Doherty is actually alleging a conceptual design rather than a cor. crete component in this contention. This obviously existed, at least potentially, in 1975 according to his reference. Thus it seems clear that information on this subject was available long before this point in time so that no good cause for late filing exists.
As to whether the petitioner's interest can be otherwise protected in considering factor (ii), Mr. Doherty states that:
There is no current commission (sic) effort to have Applicant's system or any BWR system equipped with a
" core ladle" device for plants situated on clay, silt, sand and gravel.
Mr. Doherty is correct that no Commission proceeding exists to develop a require-ment for core ladles on land based plants, but since no such requirement exists anywhere in the Commission's regulations, this proposal not only can be, but should be a subject of a petition for rulemaking as provided in 10 C.F.R. 52.802.
1 It is in the rulemaking forum that this proposal should be presented and is not appropriate for an adjudicatory proceeding.
Not only is rulemaking the proper forum for this action, but the forum which will far better protect Mr. Doherty 's interest in this subject, since what he is proposing is actually a new regulation.
Thus the Staff believes factor (ii) should be viewed as a reason not to admit this contention.
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Factor (iii) requires assessment of the extent that the proposal would reasonably be expected to assist in developing a sound record. Mr. Doherty states in his statement numbered 3, that:
Consideration of this, in view of the evacuation and population contentions raised by Intervenor J. Morgan Bishop and other parties would give the opportunity to consider melt-delay systems in relation to demographic condi tions.
Mr. Doherty seems to be suggesting that the record will be improved by expanding other parties' evacuation contentions.
Rather than assisting in development of a sound record, the Staff believes that to attempt to speculate on whatever delay might be provided by a core ladle in the presently undefined impacts of a core melt would not inprove, but make nearly impossible, a sound record. The litigation of a speculative design with speculative effects, if any, would provide no basis at all for a sound decision based on probative evidence, but rather confuse and undermine the soundness of the record. The Staff believes factor (iii) weighs against admission of this contention, since Mr. Doherty has indicated by his discussion that he has no expert knowledge in this area.
Mr. Doherty points out that no other party has asserted the right to propose the core ladle as a core melt mitigation device as evidence that factor (iv) should be viewed in favor of allowing his tardy contention 49.
It is true that no contention concerning a core melt has been admitted to this proceeding and that Mr. Doherty's interest will not be represented by other parties or their contentions. This factor, considered alone, weighs in favor of the contention.
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Lastly, regarding the delay or expansion of issues described in factor (v),
Mr. Doherty states that since meltdown consequences are severe, "the use of time to consider its mitigation is worthy." Apparently Mr. Doherty recognizes the significant delay and expansion of issues which would result from admission of this contention.
It is obvious that this proposed contention would create an enormous expansion of issues in this proceeding since the core ladle has been recently developed only for a unique reactor design and to propose such a component for a land based reactor would require research and development as well as a long term analytical project to quantify and describe the impacts of core melt so as to be able to quantify the mitigative effect of the core ladle.
It seems clear to the Staff that admission of this contention would create significant delay in this proceeding.
In sumary, the Staff believes the considerations of all five factors weigh heavily against admission of this contention.
Conclusion i
For the reasons stated above, the Staff believes that the Board should admit contention 48 and deny admission of both the amendment to contention 17 and contention 49.
Respectfully submitted, 4es N
Colleen P. Woodhead Counsel for NRC Staff Dated at Bethesda, Maryland, this 28th day of April,1980.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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l HOUSTON LIGHTING & POWER COMPANY Docket No. 50-466 (Allens Creek Nuclear Generating
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Station, Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO NEW CONTENTIONS 48 AND 49 AND AN Af1END!iENT TO ADMITTED CONTENTION 17 SUBMITTED BY INTERVENOR JOHN F. D0HERTY" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk by deposit in the Nuclear Regulatory Commission internal mail system, this 28th day of April,1980:
Sheldon J. Wolfe, Esq., Chairman
- Richard Lowerre, Esq.
Atomic Safety and Licensing Board Panel Asst. Attorney General for the U.S. Nuclear Regulatory Commission State of Texas Washington, DC 20555 P.O. Box 12548 Capitol Station Dr. E. Leonard Cheatum Austin, Texas 78711 Route 3, Box 350A Watkinsville, Georgia 30677 Hon. Jarry Sliva, Mayor City of Wallis, Texas 77485 Mr. Gustave A. Linenberger
- Atomic Safety and Licensing Board Panel Hon. John R. Mikeska U.S. Nuclear Regulatory Commission Austin County Judge Wachington, DC 20S55 P.O. Box 310 Bellville, Texas 77418 R. Gordon Gooch, Esq.
Baker & Botts Mr. John F. Doherty 1701 Pennsylvania Avenue, N.W.
4327 Alconbury Street Washington, DC 20U06 Houston, Texas 77021 J. Gregory Copeland, Esq.
Mr. and Mrs. Robert S. Framson Baker & Botts 4822 Waynesboro Drive One Shell Plaza Houston, Texas 77035 Houston, Text.s 77002 Mr. F. H. Potthoff, III Jack Newman, Csq.
1814 Pine Village Lowenstein, Reis, Newman & Axelrad Houston, Texas 77080 1025 Connecticut Avenue, N.W.
Washington, DC 20037 D. Marrack 420 Mulberry Lane Carro Hinderstein Bellaire, Texas 77401 8739 Link Terrace Houston, Texas 77025 O
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. P Texas Public Interest Margaret Bishop Research Group, Inc.
11418 Oak Spring c/o James Scott, Jr., Esq.
Houston, Texas 77043 8302 Albacore Houston, Texas 77074 Brenda A. McCorkle 6140 Darnell Houston, Texas 770/4 J. Morgan Bishop 11418 Oak Spring Mr. Wayne Rentfro Houston, Texas 77043 P.O. Box 1335 Rosenberg, Texas 77471 Stephen A. Doggett, Esq.
Pollan, Nicholson & Doggett Rosemary N. Lemmer P.O. Box 592 11423 Oak Spring Rosenberg, Texas 77471 Houston, Texas 77043 Bryan L. Baker
,1923 Hawthorne Houston, Texas 77098 Robin Griffith Leotis Johnston 1034 Sally Ann 1407 Scenic Ridge Rosenberg, Texas 77471 Houston, Texas 77043 Elinore P. Cummings Atomic Safety and Licensing
- 926 Horace Mann Appeal Board Rosenberg, Texas 77471 U.S. Nuclear Regulatory Comission Washington, DC 20555 Mrs. Connie Wilson 11427 Oak Spring Atomic Safety and Licensing
- Houston, Texas 77043 Board Panel U.S. Nuclear Regulatory Commission Mr. William Perrenad Washington, DC 20555 4070 Merrick Houston, TX 77025 Docketing and Service Section
- Carolina Conn Office of the Secretary U.S. Nuclear Regulatory Comission 1414 Scenic Ridge
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Washington, DC 20555 Houston, Texas 77043 Mr. William J. Schuessler 5810 Darnell Houston, Texas 77074 The Honorable Ron Waters i
State Representative, District 79
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3620 Washington Avenue, No. 362 Colleen P. Woodhead Houston, TX 77007 Counsel for NRC Staff i
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