ML20041E174
| ML20041E174 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 03/05/1982 |
| From: | Newman J HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8203100220 | |
| Download: ML20041E174 (19) | |
Text
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- 02 I"'-3 fy eq UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIS6 ION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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HOUSTON LIGHTING & POWER COMPANY
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Docket No. 50-s
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APPLICANT'S BRIEF IN OPPOSITION TO THE APPEAL OF ROBERT ALEXANDER b
Petitioner Robert Alexander appeals from the January 12, 1982 Memorandum and Order of the Atomic Safety and Licensing Board (ASLB or Licensing Board) denying his untimely peti-tion for leave to intervene.
For the reasons discussed below, Applicant urges the Appeal Board to affirm the ruling of the Licensing Board.
I.
Statement of Facts on May 31, 1978, the Licensing Board issued a notice of intervention procedures in this proceeding which estab-1 lished a filing deadline of June 30, 1978 (43 Fed. Reg.
23666).
An amended notice of intervention procedures, pub-lished September 11, 1978, moved the filing deadline to so,
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October 11, 1978 (43 Fed. Reg. 40328).1/
Subsequently, the Licensing Board issued a " Supple-mentary Notice of Intervention Procedures" on June 12, 1979,I1/which was addressed to persons who had not attempted to intervene earlier because of restrictions in the 1978 notice.
This supplemental notice established a filing dead-line of July 18, 1979.
Robert Alexander filed a belated petition to intervene on October 18, 1979.
The Licensing Board denied this peti-tion as untimely, based upon a consideration of the factors in 10 C.F.R. S 2.714 (a) (1).
The Licensing Board's
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ruling was subsequently upheld by the Appeal Board.
On November 30, 1981, twenty-eight months after the latest deadline, petitioner filed another untimely petition for leave to intervene, which is the subject of this appeal.
In this petition, Mr. Alexander seeks admission of a con-tention on applicant's financial qualifications, based on the change in the applicant's bond rating from AA to A by Standard and Poor's Corporation.
The deratingr
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These notices provided an opportunity for persons to file petitions for leave to intervene based upon changes in the design of the proposed facility or new evidence or information available after 1975.
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44 Fed. Reg. 35062.
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Licensing Board Order dated November 20, 1979.
- / Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239 (1980).
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i petitioner asserts, " cast doubts upon Applicant's scenario for raising the funds necessary to meet its ambitious con-struction plans," and necessitates further testimony to demonstrate that applicant's " financial plans are still in-tact." /
II.
The Licensing Board Properly Denied Petitioner Alexander's Untimely Petition To Intervene.
The question presented by petitioner's appeal is whether the Licansing Board abused its discretion in denying his un-timely petition to intervene.
South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 885 (1981); Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-339, 4 NRC 20, 24 (1976); Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2),
ALAB-342, 4 NRC 98, 107 (1976).
There was no abuse of dis-cretion here.
The Licensing Board correctly found that petition's justification for what it viewed as " inexcusable tardiness" was not sufficient, in the context of balancing the factors enumerated in 10 C.F.R.
S 2.714 (a) (1), for the consideration of untimely filings.
(See section III below).
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Petition for Leave to Intervene, November 30, 1981,
- p. 2 (hereafter " Petition").
_4_
In addition to its review of petitioner's unconvincing showing under Section 2.714 (a) (1), the Licensing Board also focused on the fact that the instant petition was not filed until eighty-four days of evidentiary hearings had been held.
A request to intervene at the close of all of the hearings in a complex proceeding is clearly extraordinary; and ca unuccelly strong showing by petitioner is required before sut::.s request may be granted.
The Appeal Board has recently empha.'illed that there are strong public policy grounds against granting non-timely petitions to inter-vene even if filed chortly before the commencement of evi-dentiary hearings, since by knet late date, the applicants and the staff had every right to assume that b^th the issues to be litigated and the p+rticipants had been established with finality, simple fairness to them--to say nothing Gf the public' interest requirement that NRC li-censing proceedings be conducted in an orderly fashion--demanded that the Board be very chary in allowing one who had slept on its rignts to inject itself and new claims into the case as last minute trial preparations were underway.
South Carolina Electric & Gas Company, 13 NRC at 886.
The same reasoning applies with even greater force where, as here, the petition comes after the hearing has been com-pleted.
Mr. Alexander's petition should be considered analo-gous to a motion by a non-party to reopen the record, and must be evaluated according to the standards which apply to
such a motion as well as by those which apply to a non-timely petition to intervene.
Because of the recognized need for finality in admin-istrative proceedings,II it is well-established that one who seeks to reopen the record in an NRC proceeding on the basis of newly available information has a difficult burden to bear.- j In particular, the movant must demonstrate es that his motion addresses a significant environmental or
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The Appeal Board has more than once noted the U.S.
Supreme Court's observation in ICC v. Jersey City that Administrative consideration of evidence
. always creates a gap between the tine the record is closed and the time the administrative version is promulgated.
If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circum-stance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the admin-istrative process could ever be consum-mated in an order that would not be sub-ject to reopening.
322 U.S. 503, 514 (1944), cited in Duke Power Company-(Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619, 620-21 (1976); Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), ALAB-227, 8 AEC 416, 418-19 n.4 (1974).
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Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320, 338 (1978);
Duke Power Company, 4 NRC at 619.
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i safety issue / and that the outcome of the proceeding might have been different had the new information been considered initially.- /
Mr. Alexander's petition fails in every aspect of such
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The sole basis for his extremely late peti-a showing.
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Public Service-Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 804 (1979);
Georgia Power Company (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 NRC 404, 409 (1975);
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station) ALAB-138, 6 AEC 520, 523 (1973).
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Pacific Gas and Electric Company (Diablo Canyon Nu-
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clear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876, 877 (1980); Kansas Gas and Electric Company, 7 NRC at 338, citing Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), ALAB-227, 8 AEC 416 (1974).
- / Indeed, in light of the Commission's proposal to elimi-nate the financial qualifications requirement, Appli-cant doubts whether anything but the most compelling showing involving financial qualifications would justi-fy reopening the record at this stage.
As the Commis-sion stated:
experience has failed to show a clear relationship between the NRC's review of an applicant's financial qualifica-tions and the applicant's ability to safely construct and operate a nuclear power plant.
(S}uch utilities are usually regulated by state and/or federal eco-nomic regulatory agencies, and gener-ally recovur the costs of constructing generating facilities through the rate-making process.
46 Fed. Reg. at 41,788 (1981).
Whether any such finan-cial issue could rise to the level of a major environ-mental or safety concern is therefore questionable at best.
tion is the alleged need to introduce a contention as to whether, in light of the recent derating of its bonds from AA to A, there is reasonable assurance that Applicant can obtain the funds necessary to construct and operate the ACNGS.
However, the issue of Applicant's financial quali-fications is already an admitted contention in this proceed-ing (Baker Consolidated Contention 1).
Discovery was con-ducted on this contention and extensive testimony, which assumes a bond rating of A rather than AA (see pp. 9-10 below),
was presented at the evidentiary hearing.
Accordingly, peti-tioner cannot reasonably contend that the outcome of the proceedings would have been affected had the Board considered his contention.
Moreover, in asserting that " Applicant must shoulder its burden" and present further testimony addressing the change in bond rating, / Petitioner fails to recognize that I
it is his burden to show that the record should be reopened and the issue of financial qualificatipn relitigated.
Kansas l
Gas and Electric, 7 NRC 338.
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III.
Consideration of the Factors Set Out at 10 C.F.R.
S 2.714 (a) (1) Clearly Supports the Board's Decision.
After balancing the factors which govern admission of late' filed petitions to intervene, the Licensing Board
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Petition at 2.
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Alexander's petition.
(i)
Good cause, if any, for failure to file on time.
Petitioner relies upon a recent newspaper article concerning a Standard and Poor's derating action as good cause for this tardy filing.
This argument is entitled to little or no weight.
Other intervenors submitted timely intervention peti-tions and, later, timely contentions (eventually consoli-dated) on this question.
Petitioner could have done the same either in his first petition to intervene in 1979 or at any subsequent time, such as in 1980 when Applicant's bonds were derated by Moody's. /
As the Licensing Board noted, "It cannot be seriously contended that the newspaper article opened the door for the first time to the explora-tion of Applicant's ability to raise funds nec2ssary for construction.
Accord, Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-431, 6 NRC 460, 463."- /
Petitioner's failure to raise this issue earlier is particularly puzzling in view of the assertion in his
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As the Licensing Board pointed out, Mr. Alexander also made a limited appearance statement on January 15, 1981 (Tr. 2319-2326), during which he made no references to Applicant's financial qualifications.
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Licensing Board Memorandum and Order, January 12, 1982, p.
3 (hereafter " Order").
appeal that "[t]hroughout his involvement in this proceeding,
[Mr. Alexander) has at no time relaxed his concerr that the Applicant should have adequate financial condition to safely construct ACNGS."
Petitioner attempts to justify his pre-vious silence by stating generally that prior to "the series of events at South Texas Project and a changing climate at the PUC in Austin" he was " satisfied to varying degrees with Applicant's financial condition," but that these events launched his concern.
The newspaper article, according to petitioner, was the " coup de grace." /
Neither these vague references in his appeal to undated
" series of events" nor his reliance in his petition upon the newspaper article satisfy petitioner's burden of establish-ing the requisite " good cause" for his failure to act until the hearings are almost over.
See 10 C.F.R. S 2.732.
As part of his " good cause" showing, Mr. Alexander also asserts that the " testimony offered previously on the matter of financial qualifications has now been largely invalidated by the S&P action" (Petition at 2).
This assertion is not supported in his petition; moreover, it is contradicted by the testimony already in the record.
Existing testimony addresses the impact of an earlier derating of applicant's bonds by Moody's, and thus already assumes the existence of
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Petitioner's Appeal of ASLB Order, February 18, 1982 PP. 1-2 (hereafter " Appeal").
the A bond rating which petitioner wishes to introduce as an issue.
As the Licensing Board recognized, We have, for example, heard testimony (Dean, fol. Tr. 16723, at pp. 6-7) that favorably compares Applicant to other utilities rated A by Moody's Investors Services, Inc. and that states there are many utilities, A rated and below, which are currently constructing nuclear plants.
Order at 3.
Mr. Alexander does not attempt to explain why the more re-cent derating action by Standard & Poor's raises implications different from those already testified to in this proceeding.
(Tr. 16,724-2 8).
In sum, he has failed to demonstrate any
" good cause" for this non-timely filing.
Because petitioner has failed to establish any " good cause," he bears a very heavy burden in addressing the re-maining four f actors under Section 2.714 (a) (1).
The Commission stated in Nuclear Fuel Services, Inc. (West Valley Reproc-essing Plant), CLI-75-4, 1 NRC 273, 275 (1975) that "[1] ate petitioners properly have a substantial burden in justifying their tardiness.
And the burden of justifying intervention on the basis of the other factors in the rule is consider-ably greater where the lateconer has no good excuse."
Peti-tioner cannot meet this burden.
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(ii) Availability of other means whereby Petitioner's interest will be protected.
Mr. Alexander merely states that " Petitioner knows of no other means whereby his interests will be protected" (Petition at 2), adding in his brief on appeal that the other intervening parties are not in a position to do so (Appeal at 2).
There is nothing in either the petition or the brief on appeal to support this assertion or to explain why the extensive hearings already completed on the issue of financial qualifications were inadequate.
As the Licensing Board noted, in failing to file a time-ly petition for leave to intervene, Mr. Alexander " assumed the risk" that the intervening parties would not fulfill his expectations (Order at 4).
Petitioner's attempt to re-fute the Board's statement by arguing that he "did not assume any risk that the existing parties would or would not fulfill his expectations" is entirely conclusory (Appeal at 2).
Moreover, it ignores NRC precedent.
In Duke Power Company (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642, 645 (1977), cited by the Licensing Board below, the Appeal Board was faced with a similar argument from an untimely petitioner who, after attending part of the hear-ings, asserted that her interests were not being adequately protected by the State.
The Appeal Board ruled that peti-tioner's argument "will not carry the day," since
Illt is not claimed that the state under-took to represent the interests of the petitioner specifically, as opposed to the public interest generally.
This being so, [ petitioner] assumed the risk that the state's degree of involvement in the proceeding would not fulfill her expectations.
And a foreseeable conse-quence of the materialization of that risk was that it would then no longer be possible to undertake herself the vindication of her interests.
Mr. Alexander's failure to present any convincing evi-dence as to why his interests cannot be protected by other means, or to distinguish his situation from that of the un-timely petitioner in the Duke Power Co. case above, clearly supports the Licensing Board's finding that this second factor must also be weighed against petitioner (Order at 4).
(iii)
Assistance in the development of a sound record.
Petitioner asserts that he is qualified to assist in the development of a sound record because he is "an articulate school teacher fairly knowedgeable with the mechanics of corporate financing and with the dynamics of securities" (Petition at 2), and also, he adds in his appeal, "an articulate law student well-versed in evidentiary matters" (Appeal at 3).
These general statements, like those included in his first j
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untimely petition, / fail to demonstrate petitioner's ability to make a valuable contribution to this proceeding, particularly in a highly specialized field such as utility finance.
The argument on appeal fails to alter the Licens-ing Board's finding that
"'Mr. Alexander has offered nothing beyond his bare assertion which might lead us to believe that he would be able to make a significant contribution to the development of an evidentiary record
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Petitioner also states that he " expects to present at least one brokerage house expert" to testify (Petition at 2).
However, as the Licensing Board noted, "at this late date something more concrete than an expectation should have been voiced.
." (Order at 5).
Noting petitioner's failure to identify his witness (or indeed to make it clear that he had such a witness), to describe the witness's quali-fications or to provide any detail about the substance of the proposed testimony, the Licensing Board properly found that Without far more particularization of l
his own experience and knowledge and absent a commitment from a brokerage
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In his earlier petition for leave to intervene, Mr. Alexander stated that he was a " law-abiding teacher" who was an " expert at expressing [himself]"
and whose " participation will further enhance these proceedings due to [his] familiarity with the Davis-i l
Besse nuclear plant" (Petition For Leave to Inter-vene, October 18, 1979 at 1).
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Order at 4, reiterating the language used in its Order of November 20, 1979 denying Mr. Alexander's October 18, 1979 petition for leave to intervene.
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house witness, whose qualifications l
and possible testimony had been de-tailed, we are unable to discern any basis for concluding either that Mr.
Alexander's participation as a cross-examiner would be imperative to the development of a sound record or that his potential witness could reasonably be expected to assist in developing the record.
Accord, South Carolina Electric and Gas Company, et al.
(Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 893-894 (1981).
Order at 5.
Petitioner's insufficient showing on this issue is not helped by his concession on appeal that his brokerage house expert (who is still not identified) "has offered to testify only on an 'on again, off again' basis" (Appeal at
- 3).
On the contrary, such an admission provides further justification for the Licensing Board's finding, despite petitioner's assertion that his " commitment to seek out and sacure such expert testimony on this issue remains stead-I fast" (Id.).
(iv) The extent to which the petitioner's interest will be represented by existing parties.
Petitioner asserts that none of the parties to this proceeding have addressed specifically the effect of Standard and Poor's derating (Petition at 3), and, more-over, that "neither counsel for TexPIRG nor Mr. Doherty could adequately represent [ petitioner's] newly-arisen interests" on that issue (Appeal at 2).
This assertion l
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ignores the fact that Bryan Baker--not Mr. Doherty or TexPIRG--was the lead intervenor on the financial quali-fications contention.
Mr. Baker conducted extensive cross-examination of Applicant's witnesses on this issue and has filed proposed findings with the Licensing Board.
Peti-tioner has failed to make any showing as to why Mr. Baker's performance was insufficient to protect petitioner's interest. /
Thus, the fourth factor should, like the first three, be weighed against petitioner.
The Licensing Board pointed out, citing Duke Power Company, 6 NRC at 645, that by failing to seek to intervene on a timely basis, the peti-tioner assumed the risk that the existing parties would protect his interests.
Petitioner's statement on appeal that he did not expect or wish his interests to be protected by the existing intervenors is insufficient to distinguish his situation from that in the Duke Power case.
(v)
The extent to which petitioner's participation will broaden the issues or delay the proceeding.
Petitioner concedes that his participation "may slightly broaden the issue and/or delay the proceeding.
(Petition at 3).
It is well-established that this factor
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In addition, as the Licensing Board stated, peti-tioner has not shown that the existing intervenors to whom petitioner referred (Mr. Doherty and counsel for TexPIRG) have failed to protect his interests adequately (Order at 5).
must weigh very heavily against admission of Mr. Alexander as an intervenor at this point in the proceedings.
Detroit Edison Company (Greenwood Energy Center, Units 2 and 3), ALAB-476, 7 NRC 759, 762 (1978); see South Carolina Electric & Gas Company, 13 NRC 881.
While the Licensing Board was unable to assess the full extent of the effect of petitioner's participation, the Board emphasized that even if it were to find in favor of petitioner on this factor, "such a finding would not be dis-positive since it could not overcome the effect of his in-excusable tardiness and our adverse findings with respect to the three / other factors.
ALAB-582, 11 NRC 239, 242 n.10 (1980)" (Order at 5-6).
Given the present posture of this proceeding, the granting of a petition to intervene would require the most convincing showing that Mr. Alexander's participation at this extraordinarily late date would make "a significant contribution on an issue of crucial importance."
Duke Power Company, 6 NRC at 645.
Clearly, petitioner has failed to make anything resembling such a showing.
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Applicant believes that this was intended to read "four other factors," since the Licensing Board specifically found that the first four factors listed under 10 C.F.R. S 2.714 (a) (1) should all be weighed against the petitioner.
Conclusion For all of the foregoing reasons, the Appeal Board should affirm the ruling of the Licensing Board denying Mr. Alexander's untimely petition for leave to intervene.
Respectfully submitted, OF COUNSEL:
L LOWENSTEIN, NEWMAN, REIS Jack R. Newman
& AXELRAD David B. Raskin 1025 Connecticut Ave., N.
1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 Washington, D.C.
20036 BAKER & BOTTS J. Gregory Copeland 3000 One Shell Plaza Scott E. Rozzell Houston, Texas 77002 3000 One Shell Plaza Houston, Texas 77002 ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER COMPANY
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 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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CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANT'S BRIEF IN OPPOSITION TO THE APPEAL OF ROBERT ALEXANDER were served on the following by deposit in the United States mail, postage prepaid, this 5th day of March, 1982.
Sheldon J. Wolfe, Esq., Chairman Susan Plettman, Esq.
Atomic Safety and Licensing David Preister, Esq.
Board Panel Texas Attorney General's Office U.S. Nuclear Regulatory Commission P. O. Box 12548 Washington, DC 20555 Capitol Station Austin, Texas 78711 Dr. E. Leonard Cheatum Route 3, Box 350A Honorable Frank Petter Watkinsville, Georgia 30677 Mayor,-City of Wallis P. O. Box 312 Mr. Gustave A. Linenberger Wallis, Texas 77485 Atomic Safety and Licensing Board Panel Hon. Iaroy H. Grebe U.S. Nuclear Regulatory Commission County Judge, Austin County Washington, DC 20555 P. O. Box 99 Bellville, Texas 77418 Scott W.
Stucky Docketing and Service Section Atomic Safety and Licensing Office of the Secretary of Board Panel the Commission U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555
o
, James M. Scott, Jr.
Richard Black, Esq.
13935 Ivy Mount U.S. Nuclear Regulatory Sugar Land, Texas 77478 Commiasion Washington, DC 20555 William Schuessler 5810 Darnell John F. Doherty Houston, Texas 77074 4327 Alconbury Street Houston, Texas 77021 Stephen A. Doggett, Esq.
P. O. Box 592 Rosenberg, Texas 77471 TexPirg Att:
Clarence Johnson Bryan L. Baker Executive Director 1923 Hawthorne Box 237 U.S.
Houston, Texas 77098 University of Houston Houston, Texas 7704 J. Morgan Bishop Margaret Bishop Carro Hinderstein 11418 Oak Spring 609 Fannin Street Houston, Texas 77043 Suite 521 Houston, Texas 77002 W. Matthew Perrenod 4070 Merrick D. Marrack Houston, Texas 77024 420 Mulberry Lane Bellaire, Texas 77401 Wayne Rentfro P. O. Box 1335 Brenda McCorkle 2csenberg, Texas 77471 6140 Darnell Houston, Texas 77074 Robert Alexander 2030 Portsmouth St. #2 V. O.
" Butch" Carden, Jr.
Houston, TX 77098 City Attorney City of Wallis P.
O.
Box A East Bernard, Texas 77435 cc Ah a k R. Newmad