ML19351G109
| ML19351G109 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 02/19/1981 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8102230133 | |
| Download: ML19351G109 (8) | |
Text
.
i February 19, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION o
S, s
\\
A BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
HOUSTON LIGHTING & POWER COMPANY
)
Docket No. 50-466 J'
)
th
( Allens Creek Nuclear Generating
)
G Station, Unit 1)
)
NRC STAFF RESPONSE TO INTERVENOR SCHUESSLER'S MOTION TO RECONSIDER AND RESCIND CERTAIN RULINGS AND ACTIONS OF THE BOARD I.
INTRODUCTICN By motion dated January 29,1981, (Motion) Intervenor, William J.
Schuessler, requested this Board to " reconsider and rescind" its ruling limiting the cross-examination of another intervenor, Mr. Rentfro, to only those matters which Mr. Rentfro has a " discernible interest" and
" recall the witness, if r.-
<sary, to properly afford Mr. Rentfro the opportunity to cross-exam (Motion at 1). The motion further requested that the Board ".
adopt a policy of maintaining hearings as scheduled" so that the Intervenors will not have to " meet and match the attendance records of the members of the Board, parties representing the Applicant, NRC Staff and expert witnesses." I!
-1/ Motion at 2.
The motion describes a situation where the Board continued a hearing session through the lunch period, apparently then completed the taking of evidence and recessed hours before 5:00 p.m. leaving Intervenors who arrived late without anyone to cross-examine.
(Motion at2.)
8102230/33
~
. II.
DISCUSSION A.
Mr. Schuessler Has No Standing To Request Reconsideration Of A Ruling Adverse to Mr. Rentfro.
The Appeal Board in this very proceeding recently stated that a party does not have standing to press the grievances of other parties to the proceeding who are not represented by him.2/ The Appeal Board added that such an intervenor is not entitled to complain of a ruling against other parties unless and until that ruling has worked a concrete injury to his personal interests.3/
B.
Even If Mr. Schuessler Did Have Standing To Take Issue With The " Discernible Interest" Requirement He Has Failed To Assert Why It Should Not Apply To This Proceeding.
Mr. Schuessler asserts that if the Licensing Board's application of the
" discernible interest" test to Mr. Rentfro is allowed to stand it will restrict the rights of all of the intervenors to participate " fully in the conduct of the hearing." (Motionat1). The Staff understands Mr. Schuessler to
_2/ Houston Lighting and Power Company ( Allens Creek Nuclear Generating Station, Unit No.1), ALAB-631, Slip op at 3 and 4 (February 4, 1981).
3/
Id.
1 be taking issue with the " discernible interest" requirement itself.Al The
" discernible interest" requirement was originally imposed by the Appeal Board in the Prairie Island case S and received explicit Commission endorsement. --
Furthemore, Mr. Schuessler has not stated any reasons why such requirement would not be applicable in this proceeding. (Motion at1).
C.
Mr. Scruessler's Request That The Board liaintain A Specific Schedule Allowing Intervenors To Step In And Out Of The Proceeding Is Inconsistent With The Board's Authority To Control The Proceeding And Intervenor's Obligation To Participate In The Proceeding.
In essence, Mr. Schuessler is requesting this Board to adopt and naintain a strict 9:00 a.m. to 5:00 p.m. hearing schedule with a specified lunch recess.
(Motion at 2).
Mr. Schuessler argues that if such a schedule is not followed the Intervenors will have'"to match the attendance records of the members of the Board, parties representing the Applicant, NRC Staff and expert witnesses" or possibly miss an opportunity i
__4]
In ALAB-631 the Appeal Board noted a similar understanding regarding Dr. Marrack and the ruling of the Licensing Board concerning Mr.
Rentfro, at 4 and 5.
l
_5] Northern States Power Company (Prairie Island Nuclear Generating Plant, Units I and 2), ALAB-244, 8 AEC 857, 868 (1974), reconsideration denied, ALAB-252, 8 AEC 1175 (1975), affimed, CLI-75-1,1 NRC 1 (1975).
i
_6] CLI-75-1, supra,1 NRC at 2.
[
i
O
, to conduct cross-exanination or object to the introduction of documents into evidence.
(Motion at I and 2.)
The Appeal Board has stated that licensing boards have been granted extensive authority to control the cotese of hearings. ll In fact, the licensing boards are under a mandate to ensure that proceedings are conducted in an expeditious manner. 8_/ This mandate is reflected in the Commission's " Rules of Practice," 10 C.F.R. @ 2.718 and Appendix A to Part 2.
Section 2.718 provides in part:
A presiding officer has the duty to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order.
He has all powers necessary to those ends, including the power to:
(e) Regulate the course of the hearing and the conduct of the participants.
[ emphasis added]
Appendix A to Part 2 provides, in part, that the statement in the 4
Appendix " reflects the Commission's intent that such proceedings
[ hearings] be conducted expeditiously and its [the Commission's] concern that its procedures maintain sufficient flexibility to accommodate that objective."
In sum, the Commission law is clear that it is within the i
Board's discretion to extend hearing sessions through a lunch period and establish schedules it believes necessary to fulfill its mandate to avoid
-7/ Illinois Power Company (Clinton Power Station, Unit Nos. I and 2),
ALAB-340, 4 NRC 27, 33 (1976).
l 8/ Id.
I r
6 any delay.
Strict adherence to a 9:00 a.m. to 5:00 p.m. schedule would jeopardize the Board's flexibility to fulfill this mandate.
The Appeal Board, furthermore, has stated that it will only enter the Licensing Board's arena of scheduling functions to assure a party a fair opportunity to advance its cause. S The issue here is not fairness to the Intervenors but rather the convenience of the Intervenors. El On this point Mr. Schuessler has ignored the obligations of Intervenor participation in NRC proceedings.
In Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), E the appeal Board stated "... intervention in an NRC adjudication proceeding does not carry with it a license to step into and out of the consideration of a particular issue at will." Said another way, an intervenor cannot wait on the sidelines "until such time as he night choose to enter the contest." E We submit that Intervenors cannot expect that they can participate in this proceeding at their own J Southern California Edison Company, et al. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-212, 7 AEC 986, 991 (1974).
M/ Although the Appeal Board has noted that the convenience of Intervenors is entitled to recognition, it has stated that such convenience "... cannot be dispositive,n scheduling matters."
Potomac Electric Power Company (Douglas Powt Nuclear Generating Station, Units 1 and 2), ALAB-277, 1 NRC 539, 552 (1975).
1_1/ ALAB-288, 2 NRC 390, 393 (1975).
12/ Id.
y w
. convenience.
If such a posture is taken, they cannot complain that their rights, due to their absence from the hearings, have been unjustly abridged. El III.
CONCLUSION For the above reasons, the Staff opposes the instant motion.
Respectfully submitted,
?y
.u tbnry J cGurren Counsel for NRC Staff Dated at Bethesda, Maryland this 19th day of February, 1981.
M/ Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 251 (1974).
See also Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A; 18, 28), ALAB-463, 7 NRC 341, 362, n. 90 where an evidentiary claim of error was lost by intervenor for failure to assert it.
Intervenors must be present to protect their rights or lose them. This is consistent with the Commission's rule guiding default,10 C.F.R. 9 2.707 which provides, in part, that "[o]n failure of a party... to appear at a hearing the presiding officer may make such orders in regard to the failure as are just, including, among others, the following:... (b) proceed without further notice to take proof on the issues specified."
O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
HOUSTON LIGHTING & POWER C0:1PANY Docket No. 50-466 (Allens Creek Nuclear Generating
)
Station, Unit 1)
)
_ CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVEN0R SCHUESSLER'S MOTION TO RECONSIDER AND RESCIND CERTAIN RULINGS AND ACTIONS OF THE BOARD" in the above-captioned proceeding have been served on the following by deposit in the United States mail, fir,t class, or as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission internal mail system, this 19th day of February,1981:
Sheldon J. Uolfe, Esq., Chairman
- Susan Plettman, Esq.
Atomic Safety and Licensing Board Panel David Preister, Esq.
U.S. Nuclear Regulatory Commission Texas Attorney General's Office Washington, DC 20555 P.O. Box 12548 Capitol Station Dr. E. Leonard Cheatum Austin, Texas 78711 Route 3, Box 350A Uatkinsville, Georgia 30677 Hon. Jerry Sliva, Mayor City of Wallis, Texas 77485 ftr. Gustave A. Linenberger
- Atomic Safety and Licensing Board Panel Hon. John R. Mikeska U.S. Nuclear Regulatory Commission Austin County Judge Washington, DC 20555 P.O. Box 310 Bellville, Texas 77418 The Honorable Ron Waters State Representative, District 79 Mr. John F. Doherty 3620 Washington Avenue, No. 362 4327 Alconbury Street Houston, TX 77007 Houston, Texas 77021 J. Gregory Copeland, Esq.
Mr. William J. Schaessler Baker & Botts 5810 Darnell One Shell Plaza Houston, Texas 77074 Houston, Texas 77002 Mr. F. H. Potthoff, III Jack Newman, Esq.
1814 Pine Village Lowenstein, Reis, Nemaan & Axelrad Houston, Texas 77080 1025 Connecticut Avenue, N.W.
Washington, DC 20037 D. Harrack 420 Mulberry Lane Bellaire, Texas 77401
..6 Texas Public Interest Margaret Bishop Research Group, Inc.
J. Morgan Bishop c/o James Scott, Jr., Esq.
11418 Oak Sprina 13935 Ivymount Ho,uston, Texas 77043 Sugarland, Texas 77478 U.S. Nuclear Regulatory Commission Brenda A. McCorkle Region IV 6140 Darnell Office of Inspection and Enforcement Houston, Texas 770/4 611 Ryan Plaza Drive Suite 1000 Mr. Wayne Rentfro Arlington, Texas 76011 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 Carro Hinderstein 1923 Hawthorne 8739 Link Terrace Houston, Texas 77098 Houston, Texas 77025 Robin Griffith Leotis Johnston 1034 Sally Ann 1407 Scenic Ridge Rosenberg, Texas 77471 Houston, Texas 77043 Carolina Conn Atomic Safety and Licensing
- 1414 Scenic Ridge Appeal Board Houston, Texas 77043 U.S Nuclear Regulatory Comnission Washington, DC 20555 Mr. William Perrenad 4070 Merrick j
Atomic Safety and Licensing
- Houston, TX.77025' Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section
- j, 1-Office of the Secretary j 'fl[d
'/
U.S. Nuclear Regulatory Connission f,);
/,)9 e 2
e Washington, DC 20555 Hebrf {.' icGurren n
Counselsfor NRC Staff.
s t
2 r-,.
,r n
g.,
-w w q
,g
,~.-,s m..: 4
._,-.7.,
~,
-,~