ML20045E237
| ML20045E237 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 02/21/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-025, SECY-A-80-25, NUDOCS 9307010278 | |
| Download: ML20045E237 (69) | |
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( l UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D, C. 20555 SECY-A-80-25 february 21, 1980 COMMISSIONER ACTION For:
The Commissioners From:
James A. Fitzgerald Assistant General Counsel
Subject:
Review of ALAB-574, HOUST01: POWER & LIGHT COMPA!1Y Facility:
Allens Creek, Unit 1
Purpose:
To inform the Connission of an Appeal Board dec1-sion{
in my opinion, Review Time Expires:
February 27, 1980.
Discussion:
In ALAB-574, the Appeal Board af firmed the Licen-ing Board's ruling which denied four petitions to intervene in this proceeding based on a: June -18,-
1979 "Supplenient41 Notics of' Int 6rv'ention' Proce-dures" (44 Fed. j' Re ~;" 35062). 'Three"of the p'eti -
tioners, Donald D. Weaver, Patricia L. Streilein' and Kathryn Otto, have filed a consolidated peti-tion for review of ALAB-574 pursuant to 10 CFR S 2.786(b)(1).
Both the applicant and the Staff have filed responses opposing the petition to review.
~he instant petitions to intervene all stem from the " Supplemental I;otice", the fourth in a series of Federal Register notices providing opportuni-ties for intervention in this proceeding since it was instituted in 1973.
Tnis latest notice was a direct result of previcus Appeal Board decisions holding that the two 1978 notices 1/ were overly restrictive and suggesting that thlii Licensing 4
1/
43 Fed. Rec. 23666 (!!ay 31, 1978); 43 Fed Reg. 40328 (Septem-
~
ber IT, T978).
C011 TACT:
Information in th;s rec 0rd was deie:0d arian E. Moe, OCC in accrdare ;; t;i the traedom of Information 24 Act, eumpt;:n<
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__f 2 - V3 6 9307010278 930317 PDR FOIA 1\\7(jff 7/g' CILINSK92-436' PDR
A The Conmissioners 2
Board consider publishing yet another, corrected notice. 2/
The Licensing Board, following the Appeal Board's guidance in ALAB-544, issued the Supplemental Notice which served as the basis for these unsuccessful petitions to intervene.
The Supplemental Notice contained a requirement that any petitioner must " state that he failed to file a petition for leave to intervene pursuant to the Board's notices of May 31 and September 11,.
1978, because of the restrictions on permissable-contentions contained in those notices."
- Weaver, Streilein and Otto failed to comply with this requirement at the time _they filed their petitions, and at the special prehcaring conference when giver.-
an opportunity to explain this omission, they.
failed to satisfy the Licensing Board with suffic-ient reasons for non-compliance.
The Appeal Board agreed that the petitioners had not shown that they net this requirement (of being deterred from filing by the defective notices), and explicitly endorsed-the limitation contained in the Supplemental _ Notice as consistent with their prior guidance contained in ALAB-544 Petitioners' Streilein and Ueaver dispute the Licensing Board's determination that they did not show that the defective notices dis-couraged them from filing.
However, both the Licensing Board and Appeal Board.have resolved this f actual issue in"tYe shaie ' manner M/
10'CFR ~ ~ -~
2.786(b)(4)(ii) represents a Commission determ'in'a '
~
tion not to exercise its review authority in such instances because it has decided "as to factual matters, two levels of review within the agency are enough, and that there is no need for a third factual. review by the Commission itself."
42 F.R.
~
22128. 4/
2/
The history of this proceeding and its series of Fed. Reg. noticer is described in ALAB-535, 9 NRC 377 (April 4, 1979); ALAB-539, 9 NRC 422 ( April 23,1979); and ALAB-544, 9 NRC 630 (May 3, 1979).
These Appeal Board decisions were the subject of SECY A-79-49.
3/
ALAB-574, Slip og. pgs. 8 and 9.
$/
10 CFR 2.786(b)(4)(ii) states that:
A petition for review of matters of fact will not be granted unless it appears that the Atomic Safety and Licensing Appeal Board has resolved a factual issue necessary for decision in a clearly erroneous manner contrary to the resolution of that same issue by the Atomic Safety and Licensing Board.
T The Commissioners 3
+
Petitioners Weaver, Streilein, and Otte also challenged the sufficiency of the notice by j
publication in the Federal Register.
.The Appeal u Board found it unnecessary to reach this question <
however, because they found that prospective inte venors are duty-bound to make.at least reasonablei efforts to ascertain the necessary preconditions.
to particpation in a licensing proceeding.
Notin that the relevant information was available for inspection in the local public document room, as well as the fact that intervenors were clearly' aware from some source that an opportunity for intervention existed, the Appeal Board found that l the petitioners had not shown that they made inquiry as to what was reauired o Dl reasonable {Webelievef{7 them. 5/
The fourth unsuccessful petition to intervene, that of Eugene Mueller, was denied on the ground '
that he f ailed to subait his contentions by the September 14, 1979 deadline ordered by the Licensing Board on August 6, 1979.
Petitioner.
1 Muc11er did not claim that he had failed to receive the August 6 order and thus notice of the deadline, but that in reliance on the advice of "some friends" he had filed his con-tentions on September 25, more than fifteen j
5/
Even if the Board had reached the question of the sufficiency of notice by publication in the Federal Register it is a well- )
i established principle that Federal Register notice constitutes constructive notice to all persons and meets the requirenents of due process.
See Federal Crop Insurance Corp. v. Merrill,
-1 332 U.S. 380, 384-385 (1945); Lynsky v. United States, 126 i
F. Supp. 453, 455 (Ct. C1. 1954): Long Island Lighting j
Company (Jamesport Nuclear Power Station, Units 1 and 2),
ALAB-292, 2 NRC 631, 646-47 (1975).
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.The Commissioners
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days before the October 15 special prehearing conference.
Mr. Mueller challenged the Licens-ing Board's authority to establish the Septe:ber 14 deadline for filing of contentions in lieu of the usual requirement that contentions be filed two weeks before the prehearing conference._f Recomnendation:
I
{Accordingly,werecommend
/
- . c. n y <d James A. Fitzgeral
. Assistant. General Counsel g
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Attachments:
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1.
ALAB-574 2.
Staff Response to Appeals 3.
Petition for Review 4
Staff Response to Petition for Review 5.
Applicant's Response to Petition for Review-f-
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~in our view, L
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Comissioners' comments should be provided directly to the Office of the Secretary l
by c.o.b. Wednesday, February 27, 1980.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT February 25, 1980, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTIO'i Comisisoners Comission Staff Offices Secretariat i
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UNITED STATES OF AMERICA elI ts NUCLEAR REGULATORY C09. MISSION
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"i ATO:4IC SAFETY AND LICINSI$": APPEAL EOARD
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t-Alan.s..Rosenthal, Chairman
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Dr. John H. Buck Michael C. Tarra
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In the Matter of
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HOUSTON LIGHTING & POWER COMPANY
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Docket No. 50-466
)
(Allens Creek Nuclear Generating
)
Station, Unit 1)
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Mr. Stephen A. Doggett, Rosenberg, Texas,
for the appellants, Kathryn Otto, Patricia L. Streilein and Dcnald D.
Weaver.
t Mr. Eugene E. Mueller, Houston, Texas, a.ccellant p ro.s._e.
Messrs. Jack R. Newman, Robert H. Ctilp
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anc David E.
Raskin,'Kashington, D.C.,
and Messrs.
J. Gregory Copeland, C. Ther.as Eiddle, Jr.,
anc Cnar_es G.
- Thrash, Jr., Houston, Texas,_fer the Ec. o. lic. an t, Houston Lighting and Power Company.
Mr. Stephen M. Schinki for the Nuclear Regulatory Cor.:tission staf f.
DECISION January 10, 1980 (ALA3-574)
This construction permit proceeding involving. (at its Units 1 and 2 of the proposed Allens Creek Nuclear outset) e w
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2-Generating Station was initiated by a notice of hearing is-sued in late 197'3.
In Se[Iencer 1975., the applicant advised the Licensing Board that construction of the f acility had been deferred indefinitely.
Almost two years later, in August' 1977, the Board was informed that the applicant had decided to co forward (albeit with only one of the ~ two units) and wished-to have the then dormant licensing proceeding reactivated.
In light of this development, the Licensing Scard pub-1/
lished in May 1978 a " Notice of Intervention Procedures" 1 as amended in September 1978, 2/ provided that new
- which, petitions for leave to intervene in the proceeding could be filed so long as they were founded on contentions "aris[ing),
because of the changes 'in th'e proposed plans for -the station and with respect to new evidenceror information that had '"~
~ r not been available prior to" December 9, 1975.-3/ This notice produced-a substantial number cf intervention petitions.
Sever.al of' them were denied in February 1979 on the ground P
1/
43 Fed. Reg. 23666 (May 31, 1978).
((/
43 Fed. Reg. 40328 (September 11, 1978).
On that date, we had affirmed a partial initial'deci-3/
sion which had been rendered by the Licensing Board
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earlier in 1975 on certain of the issues presented in the proc'eeding.
See ALAB-301, 2 NRC 853.
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4 that they did not comply with the restrictions which had the contentions stated been imposed by the Board; 1.e.,
therein neither were based upon informatien that had become available subsequent to December 1975 nor had arisen frc=
the proposed changes in plant design associa:ed with the reductic.n cf the facility from two units to one.
On appellate review, we held-the restrictions invalid.
ALA3-535, 9 NRC 377 (1979).
See also ALAS-539, 9 NRC 422 (1979); ALA3-544, 9 URC 630 (1979).
This led the Licensing Board to issue a " Supplementary Notice of Intervention Pro-cedures".
44 Fed. Reg. 35062 (June 16, 1979).
In it,.the Board authorized the filing of an interventien petition by any person who had not earlier filed such a petition "be-cause of the restrictions on permissible conditions con-as aE. ended.__/ The Board went on tained" in the 19 7 9 notice,
to require that persons taking advantage cf this authoriza-ti:n s tate that the restrictions were in fact the reason for the failure to have sought interventien in response to that notice.
On August 6, 1979,.the Licensing Board entered an order in which it scheduled a special prehearing conference on October 15 for the purpose of considering the numerous inter-vention petitions filed pursuant to the supplementary notice.
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Hereinafter, the "197 8 notices".
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The order went on to direct that the petitioners file their i
contentions no later than September IJ.
Following the conference, at which the petitioners. were given an opportunity to be heard, E! the Licensing Board i
entered an order on November 19, 1979 in which it' granted some of the intervention petitions and denied others.
Among the petitions denied were, inter alia, these filed by Eugene E.
. ller, Kathryn Otto, Patricia L. Streilein and Donald C.
Weaver.
With respect to each of these petitioners,. the Board ru'_ed that, for one reason or another, there had been non-compliance with the terms of the supplemental notice or the August 6 order.
Accordingly, the Board decreed, their papers would be treated as.merely, requests to make limited appearance statements.
-. r_-
Now before us are appeals bk/ all four individuals from the denia_ of intervention.-6/
Che appeals are opposed by both the applicant and the NRC staff.
'A.
The.cetitions of both Ms. Streilein and Mr. Weaver I
were devoid of any representation as to why they had E
5/
See, in this connection, ALAB-565, 10 NRC (October 1,
~~
1979).
6/
Ms. Otto, Ms. Streilein and Mr. Weaver are represented on the appeal by counsel; Mr. Mueller's appeal has been prosecuted pro se.
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l f ailec to seek timely intervention in response to the We are notice and amended notice __:Aue'd.the pricr year.
t told,howeve$,that, for two independent reasons, the Li-censing Board erred in denying the petitions on that ground:
(1) the supplementary notice issued in June 1979 improperly had required petitioners to state affirmatively that they haf not filed a,:etition in-197E because of the restrictions ccntained in the n:tices cf that year; and (2) in any event, publication of the supplementary notice in the Federal.
Register was insufficient to hold them accountable for know-1 edge of the recuirement.
r 1.
We reject summarily the first of these lines off It is readily apparent upon even the most cursory argument.
analysis that.the, challenged requirement.was imposed in full conformity with the three opinichs-f! we had rendered in cernecticn with cur invalidation of the restrictions cen-taine.d in the 1975 notices._5/
.We need not rehearse in detail everything which was said in those opir 0ns.
It suffices to note that we did'not 4
there hold that the 1978 notices were entirely void, with
_7 /
ALAB-535., ALAB-539, ALAB-544, supra.
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We have been given insufficient cause to alter any of'the conclusions reached-in those opinions.
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6-the consequence that the issuance of a new notice was mandated.
Rather, we speci~fically le:t the Licensing Board free to de-
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i cide fcr itself whether any further notice was required in the interest of insuring that no person had been dissuaded from filing an intervention petition because of the invalid restrictions in the'1978 notices.
More particularly, in ALAB-5 39 we excressed doubt that i
the restrictier.s had " served to discourage potential petitiens (although *
[they)'may have had an effect upon.the choice and development of the contenticas which were set forth in the petiticns filed)".
9 NRC at 427.
A short. tine thereafter, however, we were confrented with the assertien of one of the-already admitted intervenors '.to.the ef fect that this doubt was not justified.
Not being in a position 'to determine ~ourselves: --
"where the truth lies on that matter,", we concluded in ALA3-544 that the Scard below (in conjunction with the applicant and staff} should decide whether, our cf.an abundance of caution, 1
it would be best to provide another opportunity to intervene to any persons who in fact had not previously sought interven-tion for the reason that they could not satisfy the terms of c
the 1978 notices.
9 NRC at 632.
As is eviden.t frcm the supplementary notice, the Board decided to give any such persons a fresh chance to intervene.
!iaving done so, it was entirely appropriate for the Board to
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insist that those endeavoring to avail themselves of the s
i further intervention opportunity aver explicitly that they were within the limited class to whom the scpplementarv.
notice was accressec.
- L 2.
We find it unnecessary te reach these petitioners' second cint, that rublication cf the sur.:.1ementarv. notice r
in the Federal ggister is net a sufficient basis for hold-ing ther to an awareness cf its terms.
To be in with, it is cuite apparent frcr the fact th at they sought interven-tion in July 1979 that, even though they may not read the 3
Federal F.egister, both had learned of the notice from scme other source.
Whether or not their informant had disclosed to them the full text of.the. noti.ce.i.s.,o.f_no.c.res.ent not.en.t..
Before filing their petitions on the strength of the-notice, it was their plain dutv. -- as it is the cbligation of anv
'ndividual desirous of obtaining entry into an NRC licensing-proceeding or the basis cf such a notice -- to make inceiry into the pcssible existence of preconditions.
From all that
~
appears, this was not dt.ne by either petitioner.
Nor can it be stic that it would have been an onerous undertakinc.
n coev of the su.crlementary notice was (as petitioners could easilv.
have ascertained) routinelv furnished to1 and available for
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inspection in, the local public document room located for i
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I t.his facility in the Sealv. Public Librarv in Sealv, Texas.
i Ms. Streilein and Mr. Weaver reside re s re c tivel.v
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Richmond and Simonton, Texas.
All three cccmunities are i
situated in the general vicinity of the plant site.
See Final Envircnnental Statement, p.
2-2.
Beyond that dispositive ccasideration, at the special prehearing conference Ms. Streilein's counsel represented
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proceeding in Septether 1975 but that it was her then in-pression that she co'cid not intervene in it (Tr. 1227-28).
He went on to indicate that he was not certain whether she had believed that intervention was foreciesed to everyone or just to herself (Tr. 1229-30).
.The Licensing Board thereupon had. directed counsel-to "go back an,d call Ms.-
c-Streilein again and try to get more information, or have her ccre in personally and tell us what went on" (Tr. 1210).
But, althouch counsel was civen until 4 : 0 's
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the follow-ing day to cc.. ply with this direction, withcut explanation Ms. Streilein did not appear and no further information was forthcoming.
Mr. Weaver likewise did no attend the conference.
One of the other petitioners (a Mrs. Bishop) informed the Board, however, that she had reached him by telephone in Hawaii e
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_9-that r.orning and had asked him whether he had known of the 1975 notices and been " intimidated" by them (Tr. 1233).
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According to Mrs. Bishon he had given an affirmative
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answer (ibid).
Mr. Weaver had not told her when he had learned of the 1975 notices er provided an explanation for his failure to have included such a representation in his intervention petition (Tr. 1234-35).
In the totality of circumstances, the Licensing i
Board declined (and we think rightly) to attach any weight to these hearsay statements (Tr. 1235; Neverter 19 order, p.
5).
In sum, the record at hand leaves us with the firm con-viction that these petitioners did little, if anything, to ascertain precisely what was required of them to become a party to the proceeding and then to discharge their obliga-tions.
This being so, we are totally disinclined to hold that i
the Licensing Board was wrcng in net excusing their failure
,ul:. 12ec anc r'ni,estiv a.ccro.cri-te com:_v w :n tne eas11.v 1
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ate, recuirement which the supplementary notice had impcsed. C 5.
Ev her owr' explicit admission Ms. Otto's failure o
to fi'_e an interventien petition in response to the 197E notices was not induced by anything contained therein.
In-stead, as she informed the Licensing Board in a September 13,
--9/
In reviewing the ruling below, we of course have con-fined ourselves to the rec,ord before the Licensing Board.
But that these petitioners now insist that, in fact, they were dissuaded by the 1978 notices fere-closes any" claim that Federal Register publication left them unaware of the content of those notices.
See also p.
11, infra.
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-1979 letter-and'at the special prehearing conference (see Tr. 764-66), her inaction had stemmed from a belief at the-time that Allens Creek was to be either a coal-fired or j
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hydroelectric facility- / -- a belief said to have been fostered by her unawareness of the issuance and publication i
of the 1978 notices.
She assertedly did no't learn of her i
error until the Spring of 1979 (Tr. 765).
Here, as in the cas.e of the Streilein and Weaver ap-T peals, there is no occasion to reach the question of the legal significance of Federal Register publication of-notices pertaining to the cpportunity to intervene in a licensing proceeding.
Acccrding to Ms. Otto's Septerber 13 letter, she resided in Simcaton, Texas, during the period she was under a: misapprehension respecting the type of plant proposed for the A11ensicreek. site.
As-she herself.acknowl -,
edged in the letter, Simonton is "only_a few miles frer'[that]
11/
site".m1 In that circumstance, the misapprehensicn is more appropriately attributed to a lack of diligent inquiry cr her part than it is to a lack of arcessibility of the Federal Recister.
Surely, living in the virtual shadow of the proposed i
4 10/
The Septerber 13 letter made reference only to a ccal-fired plant.
The hydroelectric alternative was first
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mentioned by Ms. Otto at the conference (Tr. 765).
--11/
It appears from the Final Environmental Statement (at "p. 2-2) that the distance.is approximately ten miles.
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I facility,~it would not have been at all. difficult for her to l
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seek confirmation from a nnewledgeable source of the accuracy of her assumption that nuclear generation was not involved.
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Moreover, the applicant has represented in its brief to us that articles relating to the filing cf intervention netitiers under the 1978 notices appeared in daily newsoapers s
of general circulatic. published in' nearby Houston.
And we thin'. it not unlikely that, apart from these specific arti-cles, the creposal te build a nuclear facility in the Houston area has received considerable redia attentica ever since it first surfaced.12/
In a word, then, Ms. Otto's challenge to the denial cf her intervention petition must f a-11-- Ior essentially the same l
reasons appliiable'to Ms'.
Streil'ein*and Mr. We~ aver'.JSe I
stress again that, the legal import.of Federal Register pub-licatien to one side, persons whese residence is in suffi-ciently c1cse proximity to a preposed nuclear facility :c c.ive.them an interest in that.f acility's licensing -roceed-e inc. are duty-bound to take at least some stecs to obtain such l
reac11.v available inf ormation as mignt be rec.uirec to.crotect their interest in a reasonably timely fashion.
Not havine i
k done so, Ms. Otto,cannot be heard to complain.
--12/
Needless to say, newspaper articles are a particularly effective means of informing persons cf the institution j
and progress of a licensing proceeding involving a. pro-
. c.osed reactor in their area.
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Mr. Mueller's petition was denied for the entirely _
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different reason that he had failed to schmi: his contentions by September 14, 1979, the deadline prescribed in the Licensing Board's August 6, 1979 order..(The contentions were filed, instead, on September 25.)
At the Octcher special prehearing conferen,ce, he explained that he had not read the order or the Commission's Rules of Practice but had relied upon the ad-Vice cf "some friends" to the ef f ect that he was entitled, to file his contentions fifteen days prior c the commencenent of
^,
the conference (Tr. 757-63).
1979 In the course'of granting him leave on December 3, to file a supplemental brief in support of his appeal, we in-structed Mr. Mueller to tell'us whether he had received the 6 order.(a copy.of which had been served upon him at August the time of its issuance).
Ev. w$v. o.f rese.tnse, Mr. Mueller l
states merely that "[iln the past 1 have received a let of correspondence concerning the Allens Creek. project Because I have te make a living, with limited resources and j
4 6 order.13/
time [I] may have lost [ track) of the" August 1
1 This explanation will not do.
To be sure, there has been an appreciable cuantity of submissions and orders in this case and, since the date upon which his intervention petition 4
was filed, Mr. Mueller'no doubt has received copies of most I
In view of that response, we are givine effect to the 13/
well-recognized presumption that servec cocuments have been received by the addressees.
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- 13 (if not all) of then.
Although many may have been of'little i
ccncern to him,'that does not excuse',his failure to have exanined each as it arrived for the purpose of determining its possible crucial impcrtance to the prosecution of his intervention endeavor.1L/
Whatever may have been the other l
demands,upon his time, that much assuredly cculd be f airly excected of him.
Mr. Mue11er's principal contention on the appeal, i.e.,.
4 that the Licensing Board lacked the authority to establish the September 14 deadline for the filing of contentions,-is 10 CTR dispcsitively answered by the Rules of Fractice.
2.711(a) expressly empowers licensing' boards to extend cr-shorten the time provided by' the rules for the taking of action.15/
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e 1__4/ Certain1v, he should have paid particular attentien
- o any Licensing Board orders served upon him.
Mueller does not argue alternatively that the 15/.Mr.
Board below abused its-discretion in imposing the Septerber 14 deadline.
In any event, given the large number of intervention petitions filed in response to the supplementary notice, the Board was-fully justified in concluding that contentions should be filed a month before the special_prehearing con-ference.
See ALAS-565, supra, 10 NRC at (slip opinion,,pp. 3-5-).. Any petitioner experiencing dif-
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ficulty in meeting the deadline could have applied for an extension of time.
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i Insofar'as it denied the intervention petitions of the four appellants here involved, the Licensing Board's Novem-1979 order is affirmed.16/-
ber 19, It is so ORDERED.
l FOR THE APPEAL BOARD 0 _ &. &- R&-.
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s isnop Secre kry to the Appeal Board 4
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We still have before us an appeal taken by another i
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individual, Robert Alexander, from the denial in a
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November'20, 1979 order of his untimely intervention retition.
That appeal is in the briefing process.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COM'ilSS10N
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In the Matter of
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HOUSTON LIGHTING & POWER COMPANY
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Docket No. 50-465 2
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NRC STAFF'S CONSULIDATED RESPONSE TO APPEALS OF EUGENE MUELLER, KATHRYN OTTO, PATRICI A L. STREILEP: AND DONALD D. WEtXER On November 29, 1979, and December 12, 1979, respectively, Eugene Mueller filed a notice of appeal and supplemental brief challenging the Licensing Beard's Order dated November 19, 1979, insofar as it designated his filings of July 10,1979, and September 25, 1979, as a request to make a limited In appearante statement rather than as a petition for leave to intervene.
a notice of appeal dated December 10, 1979, and supplemental brief dated December 14,1979,' Kathryn' Ott6~,'P5tricid C~Streilen ~ and Donald D. Weaver challenge the same Licensinc Board Order, in that it had also designated then as limited appearees in the captioned proceeding.
For the reasons set forth belc s, the Staff opposes the appeals of all four of these individuals.
BACKGROUND On June 18, 1979, a " Supplemental Notice of Intervention Procedures" (Supplemental Notice) was published in the Federal Register at the Licensing Board's direction
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(44 Fed. Rec. 35052).
It is fair to say that this notice was prompted by a,
series of decisions of this Board which had (1) found previous notices of
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possible republication of the prior notices.
See ALAS-535, 9 NRC 377 (April 4, 1979); ALAB-539, 9 NRC 422 (April 23,1979); ALAB-544, 9 NRC 630 (May 3,1979).
The relevant history of the proceeding was summarized by this Board in ALAB's E35 and 539 and need not be rehearsed in detail here.
Briefly, however, the May and September,1978 notices were found too restrictive by this Board because the Licensing Board had limited pemissible contentions to those that dealt with either chances in the generating station resulting.from the cancel-lation of one unit, or information arising af ter this Scard's affirmancc 2 / of the Partial Initial Decision in this matter.
In ALA5-539, in the process of, denying the Staff's motion for clarification of ALAB-535, this Board found that.'r.epublicati.on.of'a : notice frovidihg'oppbrtunity
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for intervention was neither "necessary~or desirable,"O riter"alia'because i
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it was "at least doubtful that the limitation served to discourage potential petitions (although, as recognized in ALAE-535, it may have had an effect upon the choice and development of contentions which were set forth in the petitions filed)."
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- The notices which were found too restrictive by this Board are dated May 31, 1978 (43 Fed. gc,. 23555) and September 11,1978(43 Fed. Rec. 40328), respective'.;
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- ALA3-301, 2 NRC 853 (December 9,1975).
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- 2 NRC 775 (November ll,1975).
- 9 NRC at 426.
5/ Id_., at 427.
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Thereaf ter, in ALAB-544, in ruling upon a notion for reconsideration of ALAB-535 filed by TEXPIRG (an intervenor in this proceeding), this Board noted the uncertainty created by TEXPIRG with regard to whether potential intervention petitions had, in fact, been discouraged by the improper limitation"1 n the 1978 i
notices. While not directing the Licensing Board to republish the notice providing an opportunity to intervene, this Board stated that "it would not be appropriate for us to forbid republication."
(emphasis in original)- / Finding that it was in the public interest to do se, the Licensing Board published the above-mentioned Supplemntal Notice.
The Supplemental Notice provided, inter alia, that:
[A]ny person (other than those persons and organizations which filed petitions for leave to intervene pursuant to the above notices of May 31 and September 11,1978),
who did not file a petition pursuant to.those notices because of the restrictions on permissible contentions contained therein, and who wishes to intervene as a party to this proceeding must file a written petition for leave to intervene in accordance with the provisions of 10 C.F.R. 2.714.
Such person shall state thatche t
failed to-file a petition for leave to intervene pursuant to the Board's notices of Pay 31 and September 11, 1978, because of the restrictions on permissible contentions contained in those notices.
In response to that notice, over 60 individuals requested leave to pert.icipate in the proceeding, either as limited appearees er as full parties.
On August 6,1979, the Licensing Board issued an Order (44 Fed.,p c,.
47653) g which set October 15-19, 1979, as the dates for a special prehearing conference in this proceeding, and provided that all contentions were required to be filed 9
by September 14, 1979.
Subsequent to the special prehearing confer.ence, on November 19, 1979, the Licensing Board issued the Order which is the subject, of these appeals.
39 NRC at 632.
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7 ARGUMDiT_
Taken as a group, the individuals who have filed the instant appeals have raised three alleged errors committed by the Licensing Board in establishing procedures to be followed in the proceeding subsequent to its decision to "renetice" this First, it is argued by all of the appellants save Mr. Mueller that publicatio-case.
of a notice in the Federal Register alone deprives tnem of due process of law, since members of tne public may not actually receive this type of notic
- However that argument is totally unavailing to the apoellants, it being well settled that of anency rulings or regulations in the Federal Register is " notice publication to all of the world" of their contents.
Lynsky v. United States __, 125 F.Supp, t
453, 455 (Ct. C1.1954); Federal Creo Insurance Consany v. Merrill, 332 U.S.
380,384-335(1945); Federal Register Act of 1935_, 44 U.S.C. 51507.
Further, pursuant' to -Section 189a of the Atomic Energy Act,' as amended, 42.U.S
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2239(a), and 10 CFR 52.104(a), the specified method for publication of a notice' providing an opportunity for intervention in fit licensing proceedings is the No other notice is required.
placement of such a notice in the Federal Register.
By arguing that Federal Register notice is inedequate, the appellar.:s challen the statute and the above-mentioned regulation. A challenge to a Comission regulation such as 10 CFR 62.104(a) is, of course, prohibited by 10 CFR 12.
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absent a showing, not made here, of "special circumstances."
~ Although it is not clear from their brief, appellants are obviously making 8/
this argument in the context of the May and September,1978 notices, which They obviously read and petitioned for leave they apparently never saw.
to intervene pursuant to the June 18 Supplemental Notice.
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. i The second argument, made by all of the appellants, concerns the requirenent of the June 18, 1979 Supplemental Notice that all petitioners state that their failure to file petitions pursuant to the earlier notices was a result of. the restrictions contained in those notices.
Mr. Mueller states that this require-ment is improper because "the Licensing Board lacked the authority to establish that order"$ and it violates "my rights as a taxpayer citizen."E The other three petitioners argue that "the re:;uirement of a statement of or proof of intimidation by the restrictions in prior notices denies due process."11/However, Mr. Mueller fails to explain why the Licensing Board lacked authority to establish its order.
Similarly, the remaining petitioners fail to explicate the reasons why the order in question denied them due process of law.
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The Licensing Board's requirement (that petitioners allege forebearance from
.a previously filing petitions because of restrictions contained in earlier notices)
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As is made clear from a readhg ~o'f"this hard's decisions was entirely proper.
535, 539 and Sa4, the single question remaining in controversy (as in ALAS's a procedural matter) af ter issuance of those opinior.s was whether additional petitions would have been filed but for the restrictions in the May and September, Thus, the Supplemental Notice was an attempt to verify that (1) tho 1978 notices.
individuals filing petitions had read the prior notices and (2) that they had made a decision not to file a petition because the issues which they sought to raise 3" Supplemental Brief," dated December 12, 1979.
10/" Notice of Appeal," dated November 29,1979, p.1.
11/" Supplemental Brief in Support of Appeals of Kathryn Otto, Patricia L. Streflen and Donald D. Weaver," dated December 14, 1979, p. 3.
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would not be litigable under the terns of th'ose notices.
It was eminently reasonable for the Licensing Board to seek this information, since if new petitioners-had not read the prior notices, they would not have filed in any case and could not now be heard to complain.
In addition, if new petitioners sought only to raise' issues at this time which could have been raised even under the prior " restrictive" notices, there was no reason to entertain those petitions either.
In short, the.
I, Licensing Board's Order properly invited new intervention from the only class 'of people who could legitimately complain about restrictions in the prior notices.
Finally, Mr. Mueller argues that the Corcission's Rules of Practice provide that contentions do not have to be filed until 15 days prior to the special prehearing conference, and that the Licensing Board's requirement that contentions be filed by September 14, 1979 tinstead of September 30,1979) violated that regulation.
Thus, he implicitly argues that his contentions were timely.
However, as this m tu 3
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nf Board has already pointed oli'tlin"thkpro;eedi5gs;.a_ Licens@,'.Soard'may,(under 10 CFR 52.711(a), alter the time periods otherwise established by the Rules of Practice.E Thereafter, in an opinion which dealt with procedural matters surrounding the October 15-19 prehearing conference, this Board expressed approval of the Licensing Board's alteration of the time period set forth in 10 CFR 62.714 for the filing of contentions, stating:
E r. Hueller did not file contentions until September 25, 1979, and attempted Mto justify his tardiness on the grounds that he had not read the Licensing Board's August 6 Order and had been told by friends that he would have until-September 30, 1979, to file contentions.
(Tr. 757-763). We do not know whether Mr. Mueller, in fact, read the August 6 Order. We do know, however, that he was served with a copy of that Order by the Commission's Docketing and Servics Section on August 8,1978.
He, therefore, was on notice that September 14, In any case, the fact that he 1979, was the deadline for filing contentions.
failed to read the August 6 Order or the Federal Register notice containing that Order is patently insufficient to establish good cause for the late filing of contentions.
E AB-564,
_ NRC (September 19,1979), fn. 4.
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, The Licensing Board has scheduled a special prehearing conference to begin on October 15, 1979.
Among the principal matters to be taken up, it appears, are the large number of pending intervention petitions and proposed contentions.
In that regard, the Board established September 14th as the final date for the filing of contentions.
In setting that date, the Board cut back the time normally allotted by the rules.
Its purpose in doing so seems to have been to allow time for the applicant and staff to take a position, in writing, on the acceptability of the intervenors' contentions in advance of the corference.
Although such a procedure is not specifically sanctioned by the Rules of Practice, we have no essential difficulty with it.
To the contrary, particularly where a large number of intervenors are involved (many with a long list of contentions), it makes a good deal of sense to structure the proceeding so that all participants know, before they arrive at the conference, what position the proponents of the plant are taking on the various contentions, jg In addition, this Board recognized that:
The Rules do not seem to deal explicitly with the filing of objections to contentions.
Under the fonr.at' laid' down by the Rules, however, if contentions are not. filed until 15 days days before the conference, then tnel ' = -
applicant and staff would likely not be able to state until the conference itself which contentions they thought to be inadmissible. li/
The Licensing Board's August 6 Order certainly provided the petitioners with more than sufficient time in which to frame contentions.
The publi-cation of the Supplemental Notice on June 18, 1979, effectively gave the petitioners approximately three months in which to prepare a statement of issues which each wished the Licensing Board to consider.
In addition, from the time of M AB-565, hC __ _, (October 1,1979), pp. 3-5.
AL W Id., at p. 5 fn.10.
Indeed, as the rules are currently written, if a petitione
f ails to file contentions until 15 days prior to the conference (and the contentions are mailed), the Staff's response would technically not be due for 20 days, i.e., five days efter the prehearing conference had cor:menced.
See 10 CFR 552.714(c) and 2.710. Needless to say, such a situation would hardly expedite consideration of the proffered contentions.
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the August 6 Order, each individua1 had one month in which to finish preparation of contentions. Mr. Mueller, or any other petitioner for leave to intervene, cannot be heard to complain if he or she waits until the last possible moment to prepare and submit contentions.
It is reasonable to expect that individuals who file petitions for leave to intervene should have in mind, at the time of their original filing, the issues which they wish to explore.
It was certainly reasonable for the Licensing Board to expect that those issues could be framed as contentions on or before September 14, 1979.
For all of the above reasons, the Staff believes that the appeals of Messrs.
Mueller and Weaver, Ms. Streilen and Ms. Otto should be dismissed, and that the Licensing Board's Order of November 19, 1979, should be affirmed insofar as it designated them as limited appearees in this proceeding.
--.,:, Respectfully submitted. //
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Stephe M. Schinki Counsel for NRC Staff i
i Dated at Bethesda, Maryland, j
this 28th day of December, 1979.
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UNITED STATES OF AMER!CA p
NUCLEAR REGULATURV.CDPJ43SS10N
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31%O Y r BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD.
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l In the Matter of 4
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 "NRC STAF'F'S CONSOLIDATED RESPONSE TO APPEALS OF.
EUGENE MUELLER, KATHRYN OTTO, PATRICI A L. STREILEN AND DONALD D. WEAVER" in the above-captioned proceeding have been served on the following by deposit in the Unit,ed States mail, first class, or, as indicated by an asterisk by deposit in the flutlear Regulatory Comission internal mail system, this. 28th day of December, 1979:
Alan S. Rosenthal, Esq., Chairman
- Richard Lowerre, Esq.
Atomic Safety and Licensing Asst. Attorney General for the Appeal Board State of Texas U.S. Nuclear Regulatory Commission P.O. Box 12548 Washington, DC
'20555 Capitol Station Austin, Texas 78711 Dr. John H. Buck
- Atomic Safety and Licensin9 Hon. Jerry Sliva, Mayor Appeal Board City of Wallis, Texas 77485 U.S. Nuclear Regulatory Comission Washington, DC 20555 Hon.JohnR.iiiUska
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Austin County-doc'ge - "
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Michael C. Farrar, Esq.
P.O. Box 310 Atomic Safety and Licensin9 Bellville, Texas 77418 i
Appeal Board U.S. Nuclear Regulatory Comission Mr. John F. Doherty Washington, DC 20555 4327 AlconDury Street Houston, Text.s 77021 Sheldon J. Wolfe, Esq., Chaiman Atomic Safety and Licensing Board Panel Mr. and Mrs. Robert S. Framson U.S. Nuclear Regulatory Comission 4822 Waynesboro Drive Washington, DC 20555 Houston, Texas 77035 Dr. E. Leonard Cheatum Mr. F. H. Potthoff, III Route 3, Box 350A 1814 Pine Village Watkinsville, Georgia 30677 Houston, Texas 71080 Mr. Gustave A. Linenberger D. Manack Atomic Safety and Licensing Board Panel 420 Mulberry Lane U.S. Nuclear Regulatory Comission Bellaire, Texas 77401 Washington, DC 20555 6
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-2 Margaret Bishop Texas Public' Interest 11418 Oak Spring -
Research Group, Inc.
Houston, Texas 77043 c/o Janes Scott, Jr., Esq.
8302 Albacore Houston, Texas 77074-Glen Van Slyke
.i 1739 Marsna11 Brenda A. McCorkle Houston, Texas 77098
.3 6140 Darnell Houston, Texas 77074 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 P.O. Box 592 Rosemary N. Lemmer 11423 Dak Spring Rosenberg, Texas 77471
-l Houston, Texas 77043 Bryan L. Baker -
i Charles Andrew Perez
,1118 Montrose 1014 Montrose 81vd.
Houston, Texas 77019 Houston, Texas 77019 Robin Griffith Leotis Johnston 1034 Sally. Ann-Rosenberg, Texas 77471 1407 Scenic Ridge Houston, Texas 77043 Elinore P. Cur: lings j
Atomic Safety and Licensing
- 926 Horace Mann Appeal board Rosenberg, Texas 77471-1 U.S. fluclear Regulatory Cornission 3
Washington, DC 20555 Mrs. Connie Wilson 4
11427 Oak Spring j
. Houston, Texas 77043
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Atomic Safety and Licensing
- Board Panel U.S. fluclear Regulatory Ce.r.ission Patricia L. Streilen Washington, DC 20555 Route 2, Box 3gS-C
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Richmon, Texas 77469 Docketing and Service Section
- Carolina Conn Office of the Secretary U.S. Nuclear Regulatory Cor: mission 1414 Scenic Ridge Washington, DC 20555 Houston, Texas 77043 Mr. William J. Schuessler Mr. Robert Alexander i
10925 Briar Forest #1055 5810 Darnell Houston, Texas 77074 Houston, TX 77042 l
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R. Gordon Gooch, Esq.
Mr. Eugene E. Mueller 15602 Corsair Road Baker & Botts 1701 Pennsylvania Avenue, N.W.
Houston, Texas 77053 Washington, DC 20006 Ms. Kathryn Otto J. Gregory Copeland, Esq.
Rt. 2 Box 62L Baker & Botts Richmond, Texas 77459 One Shell Plaza Houston, Texas 77002 Donald D. Weaver P. O. Drawer V Simonton, Texas 77476 Jack Newman, Esq.
Lowenstein, Reis, Newman & Axelrad 1025 Connecticut Avenue, H.W.
Washington, DC 20037 Ca rro 'Hinderstein 8739 Link Terrace Houston, Texas 77025 ItEphen/ M. Schinki Counsel for NRC Staff
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'JAN B 91990 *,ii UNITED STATES OF AMERICA Omet ei the Sect'ry DKket:.a.g & St:ri:e fj NUCLEAR REGULATORY COMMISSION gt
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ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S. Rosenthal, Chairman Dr. John H. Buck Michael C. Farrar In the Matter of 5
5 HOUSTON LIGHTING AND POWER COMPANY Docket No. 50-466 9
(Allens Creek Nuclear Generating 5
Station, Unit 1) f i
PETITION FOR REVIEW OF DECISION OF ATOMIC SAFETY AND LICENSING APPEAL BOARD
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Pursuant. to.5.2. 7.86 of.the..Com,m.is sio.n.'s Rule,s. o.f,Pr,a. ctice...,.....
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DONALD D.
for Do=estic Licensing Proceedings, _ Petitioners WEAVER, PATRICIA L. STREILEIN,.and KATHRYN OTTO petition for review of the Decision by the Atocic Safety and Licensing Appeal Board.
I. DECISION OF WHICH REVIEW IS SOUGHT By Decision dated January 10, 1980, the Atomic Safety and Licensing Appeal Board affirmed the Licensing Board's November 19, 1979 order which denied the intervention petitions of Petitioners and decreed that their papers would be treated as cerely requests to make licited appearance statemenrs.
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II. MATTERS OF FACT OR LAW RAISED BEFORE APPEAL BOARD Petitioners filed Notices of Appeal from the Board's Order of Novecher:19,1979 with the Appeal Board on or about December 4, 1979.
Each Petitioner raised the following two grounds of appeal:
(1) publication of notice in the Federal Register only is a denial of fair notice and due process; and (2) the Supplemental Notice of Intervention Procedures dated June 12, 1979 published in the Federal Register is defective in requiring Petitioners to state that they failed to file petitions for leave to intervene pursuant to the Board's prior notices because of restrictions in those notices; such defective notices are tantamount to no notice and the requirement of a statement of proof of intimidation by the improper restrictions in prior notices denies due process.
PATRICIA L. STREILEIN additionally argued;that she~in" fact la~iled'YoFinterv5SeYeauYE i
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of restrictions in prior notices, which restrictions she read about in newspaper accounts which accurately set out the restrictions.
DONALD L. WEAVER additionally argued that.he in fact failed to intervene because of the restrictions in prior notices as was stated in the record on his behalf by J. Morgan Bishop (Mr. Weaver being in Hawaii at the time of the hearing),
that he was not put on notice that personal attendance or testimony would be required, and that the Board seemed to be erroneously emphasizing the issue of whether a statement of prior notice intimidation was included in the petition, as opposed to 'whether in' fact prior notice intimidation had occurred.
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III. TdE APPEAL BOARD'S DECISION IS ERRONEOUS i
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RESTRICTIONS IN TdE JUNE,1979 SUPPLEMENTAL NOTICE A.
The Appeal Board summary rejected the contention that the supplementary notice issued in June, 1979 improperly had required petitions to state affirmatively that they had not filed a petition in 1978 because of *the restrictions' contained The Appeal Board took the position in the notices of that year.
that the 1978 notices were not void and that it was unlikely that the restrictions had served to discourage potential petitioners.
to the Licensing Board the decision of whether or not It left It found that the restrictions further notice might be necessary.
in the June,1979 notice were reasonable and proper.
(1)
The Appeal Board's decision is erroneous because:
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the May and September,19~75"noYic'es 'c'ontainedmimpropeir restr c
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(2) the June,1979 Supplemental Notice and were therefor void; improperly restricts intervention by requiring intervenors to they were intimidated or dissuaded from filing by state that 8
the improper and unlawful notices of May and Septecher,(197 ;
1979 notices is therefore not fair notice and (3) the June,
denies due process.
FEDERAL REGISTER NOTICE i
B.
The Appeal Board did not reach the contentiontthat is insufficient notice.
publication in the Federal Register:
The Appeal Board noted that petitioners had a duty to ascertain ld have been
.any preconditions for intervention, that this wou
easy to do, that petitioners failed to do so, and that the Licensing Board was therefore justified in rejecting their 1
petitions for intervention.
The Appeal Board's conclusion is wrong because publication i
of notice in the Federal Register only in this case was insufficient to provide fair notice and is a denial of due Petitioners' attack on the validity of notice to process.
them must be addressed.
The Appeal Board is taking the position that petitioners had a duty to ascertain and comply with requirements in a notice which notice petitioners are claiming is improper and constitutionally insufficient.
C.
INTIMIDATION IN FACT The Appeal Board rejected the arguments of PATRICIA L.
STREILIEN and DONALD D. WEAVER that they were in fact intimidated by restrictions _ in_the 1978 noti,ces on the grounds that no
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.. e ug-weight should be attached to hearsay statements on this issue.
The Appeal Board's decision'is erroneous because no j
Board notice in relatbx1 to'the Pre-Hearing Conference required a personal appearance or sworn testimony or affidavit on the issue of failure to file becaus'e of restrictions in prior notice! the Licensing Board only required that it be" advised"
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on this issue.
(JUEE 12, 1979, Order pp 3-4).
The rejection i
of statements by Petitioners' attorney or others on the ground
.of hearsay or lack of probative value denies due process and is unfair because of lack of notice that personal appearance or sworn stateuent would be required.
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Petitioners STREILEIN and WEAVER are also denied equal protection because they have been required to produce non-hearsay
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proof on this issueshile other intervenors have been admitted on the basis of hearsay,.albeit written
, statementti containe'd in their petitions to intervene.
IV. COMMISSION REVIEW SHOULD BE EXERCISED Commission review should be exercised because the I;icensing Board and Appeel Board denial of Petitione:s' interventions are erroneous and involve important procedural issues and questions of public policy. Petitioners have questioned the fairness of giving notice solely by publication in the Federal Register in this licensing proceeding.
Petitioners i
concede that this manner of notice conplies with the letter i
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of statutory law, but argue li[at tEii notice does not meet constitutional requirements.
of due process fair notice.
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Moreover, they have attacke d restrictions in the particular notice in question as being unfair and invalid under due process.
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A ruling on these two issues could have enorrmous impact on the course of this licensing proceeding and on procedures in i
other licenLing proceedings as well.
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What is involved is not strictly a narrow legal question.
i This is also a policy decision as to just how the Com:nission will construe.its rules and governing statutes as they relate to i
the issue of citizen participation in its licensing proceedings.
Tne evidence is overwhelming that publication of notice in the l
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Federal Register in this case has not been effective in providing actual notice to potentiallf interested persons.
No one intervened af ter the Federal Register notice in 1973.
Increasing numbers have atte=pted to intervene after subsequent notices, but their number, certainly less than 200, is incredibly small considering the location of the proposed plant is ha an mres containing a million plus persons.
Moreover, those who did intervene in ihmst every case learned about the proceedings from a. source other than the Federal Re'gister.
Those few who have heard about the : licensing proceedings and have attempted to intervene have been met with the staunchest resistance from the Applicant, NRC Staff, Licensing Board and Appeal Board.
" On close examination, Petitioners in this case have been denied intervention solely because they failed to include a sentence in their petitions stating that they failed to intervene
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because of restrictions in prior notices.
Is it the policy of the NRC to exclude.from licensing proceedings citizens,whose health and property may be affected..cn1 the grounds that they have failed to comply with what to them must surely seem to be a legal' -
technicality?
These citizens ask "what has the applicant and Ulc got to hide?
Why can't we be involved ".
Decisions such as this denying of Petitioners intervention,.
and the legal hasseling' leading up to such decisions, do more to 'icpede the' progress of licensing proceedings and obscure the real issues in such proceedings than any other cause.
1-1 It is respectfully urged that the Com:nission reverse the Appeal Board in this matter, that the Co= issien mandate guidelines which will assure fair notice to those who live l
near proposed nuclear facilities and that the Co=:nission l
establish a policy which will allow, if not encourage, full participation in licensing proceeding by concerned citizens.
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Respectfully submitted,
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STEPHEN A. DOGGE12 l
Attorneys for Petitioners 1000 Austin - Suite C P.O. Box 57 i
Richmond, Texas 77469 Telephone:
(713) 342-3242 342-3321
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JAN 2 919%. > 11 UNITED STATES OF AMERICA Om.uf the!strby h2Dr & Ed;o M
NUCLEAR REGULATORY COMMISSION e
tol In the Matter of S
S HOUSTON LIGHTING & POWER COMPANY S
Docket No. 50-466 S
(Allens Creek Nuclear Generating 5
Station, Unit 1) 5 CERTIFICATE OF SERVICE I hereby certify that copies of " Petition for Review of Decision of Atomic Safety and Licensing Appeal Board" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 7L4+( day of January,1980:
Alan S. Rosenthal, Esq., Chairman Richard Lowerre, Esq.
Atomic Safety and Licensing Asst. Attorney General for the State of Texas Appeal Board U. S. Nuclear Regulatory Commission -
P. 0.-Box 12548 Washington, D.C.= 20555
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Capitol Station n.
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Dr. John H. Buck Atomic Safety and Licensing Mr. John F. Doherty Appeal Board 4327 Alconbury Street U. S. Nuclear Regulatory Commission Houston, Texas 77021 Washington, D.C. 20555 Mr. & Mrs. Robert'S. Fra= son Michael C. Farrar, Esq.
4822 Uaynesboro Drive Atomic Safety and Licensing Houston, Texas 77035 Appeal Board U.S. Nuclear Regulatory Commission Mr. F.H. Potthoff, III Washington, D.C.
20555 1814 Pine Village Houston, Texas 77080 Sheldon J. Wolfe, Esq., Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission D. Marrack Washington, D.C.
20555 420 Mulberry Lane Bellaire, Texas 77401 Dr. E. Leonard Cheatum Route 3, Box 350A Watkinsville, Georgia 30677 Mr. Gustave A. Linenberger Atomic Safety and Licensing Board Panni U. S. Nuclear Regulatory Commission Washington, D.C.
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JAN S Eh993.
- si UNITED STATES OF' AMERICA Offi;e of Ute Strttry Y
Dxh&g & Srite EM S
NUCLEAR REGULATORY COMMISSION
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5 HOUSTON LIGHTING & POWER COMFANY f
Docket No. 50-466 S
(Allens Creek Nuclear Generating 5
Station, Unit 1) 5 1
CERTIFICATE OF SERVICE I hereby certify that copies of " Petition for Review of Decision of Atomic Safety and Licensing Appeal Board" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class,-
this 2Jixsday of January, 1980:
Alan S. Rosenthal, Esq., Chairman Richard Lowerre, Esq.
Atomic Safety and Licensing Asst. Attorney General for Appeal Board the State of Texas U. S. Uuclear Regulatory Co= mission P. O. Box 12548 Washington, D.C.
20555 Capitol Station Austin, Texas 78711 4-
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-Dr. John H. Buck Atomic Safety and LLeensing Mr. John F. Doherty Appeal Board 4327.Alconbury Street U. S. Nuclear Regulatory Commission Houston, Texas 77021 Washington, D.C. 20555 Mr. & Mrs. Robert S. Framson Michael C. Farrar, Esq.
4822 Uaynesboro -Drive Atomic Safety and Licensing Houston, Texas 77035 Appeal Board U.S. Nuclear Regulatory Commission Mr. F.H..Potthoff, III J
Washington, D.C.
20555 1814 Pine Village Houston, Texas 77080 Sheldon J. Wolf e, Esq., Chairman Ato=ic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission D. Marrack 3
Washington, D.C.
20555 420 Mulberry Lane 1
Bellaire, Texas 77401 t
Dr. E. Leonard Cheatum Route 3,. Box 350A Watkinsville,. Georgia 30677 r
Mr. Gustave A. Linenberger n
Atomic Safety and Licensing Board Fanni l
U. S. Nuclear Regulatory Commission Washington, D.C.
20555 i
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Texas Public Interest Research Group, Inc.
c/o James Scott, Jr., Esq.
8302 Albacore Houston, Texas 77074 j
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Docketing and Service Station Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Margaret Bishop 11418 Dak Spring Houston, Texas 77043 P'tricia L. Streilen a
Route 2, Box 398-C Richmond, Texas 77469 J. Gregory Copeland, Esq.
Baker & Botts One-Shell.tPlaza n.
Houston, Texas 77002 Jack Newman, Esq.
Lowenstein, Reis, Newman & Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.C.
20037 Ms. Kathryn Otto Rt. 2, Box 62L Richmond, Texas 77469 Donald D. Weaver P. O. Drawer V Simonton, Texas 77476
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2/8/83 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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In the Matter of
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E;; ; d HOUSTON LIGHTING & POWER COMPANY
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Docket No. 50-466 g
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(Allens Creek Nuclear Generating
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Station, Unit 1)
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NRC STAFF'S RESPONSE TO PETITION FOR REVIEW On January 24, 1980, Donald D. Weaver, Patricia L. Streilen and Kathryn Otto, petitioners for leave to intervene in the captioned proceeding, filed a petition for review of ALAB-5741/ with the Comission, pursuant to 10 C.F.R. 52.786(b)(1).
In ALAB-574, the Appeal Board upheld the Licensing Board's denial of the petitions for leave to intervene filed by the above-named individuals. 2 /
For the reasons discussed below, the NRC Staff believes that the petition for review should be
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denied.
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BACKGROUilD The relevant history of this proceeding has been fully set forth by the Appeal 1 and need not be reiterated here in detail.
The unique-Board in ALAB-574 circunstances which give rise to this petition for review sten from the fact -
l 7/
- Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1) ALAB-574, NRC
, Docket No. 50-466, Slip o2. (January 10,19S3).
2_/ ee the Licensing Board's " Order" dated November 19, 1979.
S 1/5110 02. at pp. l.-4.
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. that this proceeding has been the subject of four separate notices in the Federal Register providing opportunities for intervention by members of the publics since the inception of the proceeding in 1973. The individuals who now seek Commission review of ALAB-574 each filed a petition for leave to intervene pursuant to the Licensing Board's " Supplemental Notice of Intervention Procedures," dated June 18, 1979, the most recent of the four notices (hereinaf ter Supplemental Notice). As the Appeal Board noted, the Supplemental Notice was a direct result of a series of Appeal Board decisions in this proceeding dealing with the prior Federal Register notices issued in May and September, 1978. S The Appeal Board determined, in ALABs-535, 539 and 544 that (1) the restrictions placed upon perinissible contentions in the notices were unreasonable and (2) there was at least a question as to whether some members of the public had been dissuaded from filing petitions for m,
leave to intervene as a result _of_ the improper _ restrictions.
In order to remove _
all doubt with regard to that question, the Licensing Board issued the " Supplemental Notice" on June 18, 1979, providing, inter alia:
[A]ny person (other than those persons and organizations which filed petitions for leave to intervene pursuant to the above notices of May 31 and September 11,1978),
3 38 Fed. Rec. 35521 (December 28,1973) 43 Fed. Rec. 23666 (May 31,1978) 43 Fed. Rec. 40328 (September 11,1978) 44 Fed. Rec 35052 (June 18,1979)
U
- ALAB-574, slip 02. at 3.
U
- ALAB-535, 9 NRC 377 (April 4,1979); ALAB-539, 9 NRC 422 (April 23, 1979); ALAB-544, 9 NRC 630 (May 3, 1979). A substantial number of petitions for leave to intervene were filed pursuant to the May and September, 1978 notices.
p
who did not file a petition pursuant to those notices because of the restrictions on permissible contentions contained therein, and who wishes to intervene as a party to this proceeding must file a written petition for leave to intervene in accordance with the provisions of 10 C. F.R. 2.714.
Such person shall state that he failed to file a petition for leave to intervene pursuant to the Board's notices of May 31 and September 11, 1978, because of the restrictions on permissible contentions contained in those notices.
(Emphasis supplied)
It is the above requirement (that petitioners state that they would have filed earlier but for the restrictions in the prior notices) that is at the heart of the petition for review.
None of the petitioners complied with that require--
ment at the time that they filed their respective petitions for leave to intervene.
Further, as the Licensing Board foundb and the Appeal Board emphasized,b although given a second opportunity to do so at the special prehearing conference held on October 15-19, 1979, none of the petitioners furnished a reasonable explanation as to why they had not complied with the requirements of the w
Supplemental Notice. Thereforec.thfUcens]ng5BoalrAifenii[edthejrrespective, ~
petitions for leave to intervene, and in ALAB-574, the Appeal Board affirmed that action. The petitioners nos challenge the propriety of the above-quoted requirement that they allege forbearance from filing their petitions previously due to restrictions in the earlier notices. 9/
THE PETITION DOES NOT COMPLY WITH THE CRITERIA SET FORTH IN 10 C.F.R. 62.786 10 C.F.R. 62.786(b)(1) provides that the Comission will only undertake to review those decisions of the Appeal Board which involve important questions of fact, law or policy.
Petitioners imply that the question regarding the propriety of S " Order" dated November 19, 1979.
/
- - ALAB-574, slip o_p_. a t pp. 7-11.
-E/Although the petitioners now challenge the Supplemental Notice, it is important to note that none of them argued, at the time they filed their petitions for leave to intervene, that the Supolemental Notice was improcer in arv wav.
the requirements of the Supplemental Hotice, quoted suora, is a major question of public policy concerning citizen involvement in NRC proceedings.10/The Staff believes that no such major question of policy is involved.
- Rather, the matter is sui ceneris and involves only a question of what was reasonable and appropriate for the Licensing Board to require in the Supplemental Notice given the unique facts of the case and the contents of the three prior notices; there is no continuing major ~ issue involved here which could affect any other proceeding.
The Appeal Board emphasized the reasonableness of the Licensing Board's course of action as follows:
More particularly, in ALAB-539 we expressed doubt that the restrictions had " served to discourage potential petitions (although * * * [they] may have had an effect upon the choice and development of the contentions which were set forth in the petitions filed)".
9 NRC 427.
A short time thereafter, however, we were confronted with the assertion of one of the already admitted intervenors to the effect that this doubt was not justified.
Not being in a position to determine ourselves "where the truth lies on that matter", we concluded in ALAS-544 that the Board below (in conjunction with the applicant and staff) should decide 'whether,' out of'an abundance of caution, it would -
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be best to provide another opportunity to intervene.,to.. _ _..
any persons sho iri fact had not previously sought' inter-
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vention for the reason that they could not satisfy the terms of the 1978 notices.
9 NRC at 632.
As is evident from the supplementary notice, the Board decided to give any such persons a fresh chance to intervene.
Having done so, it was entirely appropriate for the Board to insist that those endeavoring to avail themselves of the further intervention opportunity aver explicitly that they were within the limited class to whom the SUDolementary notice was addressed.
(Emphasissupplied)b The Appeal Board went on to declare that it was " totally disinclined to hold that the Licensing Board was wrong in excusing [the petitioners' failure) to comply with the easily fulfilled, and manifestly appropriate requirement which the supplementary notice had imposed."
Thus the Appeal Board's finding in this 10/ " Petition for Review," p. 6.
lif ALAB-574, slip oJ_. at pp. 6-7.
b Id. at p.
9.
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5-regard rests entirely on a judgment that the Licensing Board had acted reasonably given the facts of this case.
It is important to emphasize that subsequent to the Appeal Board's decision in ALABs 535, 539 and 544, the single procedural question presented to the Licensing Board was whether additional petitions would
)
have been filed but for the restrictions in the Pay and September,1978 notices.
Thus, the Supplemental Notice was an attempt to verify that (1) the individuals filing petitions had read the prior notices and (2) that they had made a decision not to file a petition because the issues which they sought to raise would not be litigable under the tems of those notices.
As discussed, suora, the Appeal Board found the Licensing Board to be eminently reasonable in seeking this information; if new petitioners had not read the prior notices, they would not have filed petitions in any case and could not now be heard to complain.
In addition, if new petitions sought only to raise issues at this time which could have been raised even under the prior restrictive notices, there was no reason to entertain suih' filings either.
In short, given the unique factual r
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circumstances of the case, the Appeal Board agreed that the " Supplemental Notice" properly invited new intervention froni the only class of people who could legiti-mately complain about the restrictions in the prior notices.
Therefore, no major questions of law or policy are involved in either the Licensing Board's initial issuance of the " Supplemental Hotice" or by the Appeal Board's post hoc approval of that course of action.
Petitioners Streilen and Weaver also imply that, as a matter of fact, they complied with the requirements of the Supplemental Notice by statements made EThe petitioners imply that a major question of law is involved here, namely, whether the Pay and September,1978 notices were entirely voided by the Appeal Board's finding that those notices were too restrictive.
See Petition for-Review, p. 3.
However, the petitioners have entirely missed the point.
The only question which properly concerned both the Licensing and Appeal Boards was whether all persons who should have had an opportunity to file a petition for leave to intervene actually had that opportunity. The Supplemental Notice was, therefore, simply a mechanism reasonably calculated to locate those persons who had forborn from filing petitions earlier as a result of the lancuace in the prior notices.
. on their behalf at the special prehearing conference in October,1979.E/
However, both the Licensing Board and Appeal Board saw the matter differently.--!
As 10 CFR 52.786(b)(4)(ii) clearly states:
A petition for review of matters of fact will not be granted unless it appears that the Atomic Safety and Licensing Appeal Board has resolved a factual issue necessary for decision in a clearly erroneous manner contrary to the resolution of that same issue by the Atomic Safety and Licensing Board; Since both the Licensing Board and Appeal Board agreed with regard to whether the petitioners had, in fact, complied with the requirements of the Supplemental Notice, 52.7E6(b)(4)(ii) prohibits a petition for review of the Appeal Board's determinationinthisregard.$
Finally, the petitioners argue that publication of the various notices providing opportunities for intervent.' ion.iit.t5ishroceediEg. inst [ fed [ral Register is
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insufficient to comply with due process requirements, and that this issue i. evolves a major question of law and policy.17 / The Appeal Board found it unnecessary W Petition for Review, p. 4.
15 / ee Licensing Board " Order," dated November 19,1979, p. 4 and ALAS-574,
-S slip 02. at pp. 7-9.
EIAlthough the petitioners attempt to convert this question into a legal one involving acceptance or non-acceptance of hearsay statements (Petition for Review, p. 4), che simple truth is that both the Licensing Board and Appeal Board ruled against the petitioners because there were insufficient facts presented from which they could conclude that the petitioners had complied with the reovirements of the Supolemental Notice.
17/ etition for Review, pp. 3-4, 5-6.
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to reach this question in affirming the Licensing Board's denial of the petitions for leave to intervene of Ms. Streilen, Ms. Otto and Mr. Weaver.
With regard to Ms. Streilen and Mr. Weaver, the Appeal Board noted that neither was in a position to complain that Federal Regi;ter notice was insufficient, since "it e
is quite apparent from the fact that they sought intervention in July,1979, that, even though they may not read the Federal Register, both had learned of the notice fron some other source."18 / With regard to Ms. Otto, the Appeal Board found that there was information easily accessible to her from which she could have made herself aware of the circumstances of this proceeding.
The Board concluded:
We stress again that, the legal import of Federal Register publication to one side, persons whose residence is in sufficiently close proximity tn a proposed nuclear facility to give them an interest in that facility's licensing proceeding are duty-bound to take at least some steps to obtain such readily available infonnation as;might be required to protect their interest in a reasonably timely
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fashion.
Not havine done so, Ms. Otto cannot be ~ ~ ~
heard to complain.If/
Moreover, apart from the specific circumstances of this case, and pursuant to Section 189(a) of the Atomic Energy Act,U and 10 C.F.R. 'l2.104(a), the specified method for publication of a notice providing an opportunity for intervention in NRC licensing proceedings is the placement of such a notice in the Federal Register; no other notice is required.
See Federal Register Act of 1935, 3.5./ 42 U.S.C. 2239(a).
U ALAB-574, slip of at p. 7.
2_0l
- d. a t p. 11.
J_
s 4.
44 U.S.C. 51508.
It is well settled that Federal Register publication constitutes constructive notice to all persons of the matters set forth in the notice, and comports with due process. Therefore, there clearly is no major question of law raised by the petition for review in this regard.
Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 384-385 (1945); Lynsky v. United States, 126 F.Supp. 453, 455 (Ct. Cl. 1954); Lono Island Lighting Company (Jamesport Nuclear Power Station, Units 1 and-2) ALAB-292, 2 NBC 631, 646-47 (1975).
Indeed, the petitioners candidly state that they " concede that this ranner of notice complies with the letter of statutory law, but argue that this notice does not meet the constitutional requirements of due process." b That state-ment amounts to'a recuest that the Comission rule on the constitutionality of the Federal Register Act and the Atomic Energy Act.
Needless to say, such an undertaking ~isoutsidethescoe'ofthejurisdictionofthis:Agenc'y.};0esterich'.
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- v. Selective Service Board 393 U.S. 233, 242 (1968); Public btilfties Yomission
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of California v. U.S., 355 U.S. 534, 539-540 (1958).
J
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CONCLUSION For all of the rsasons discussed, supra, the Staff believes that the petition l
for review should be denied since it involves no major question of fact, law or policy as required by 10 C.F.R.12.786.
Respectfully submitted, tephen M. Schinki Counsel for NRC Staff Dated at Bethesda, Maryland, this 8th day of February, 1980.
2WPetition for Review, p. 5.
a
UNITED STATES OF AMERICA NUCLEAR REGULATURY C0KilSSION BEFORE THE CO?tISSIOff In the Matter of HOUSTON LIGHTING & POWER COMPANY Docket No. 50-466 (Allens Creek Nuclear Generating
)
Station, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO PETITION FOR REVIEW" 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 Comission internal mail system, this 8th day of February,1980:
Alan 5. Rosenthal, Esq., Chairman
- Richard Lowerre, Esq.
Atomic Safety and Licensing Asst. Attorney General for the Appeal Board State of Texas U.S. Nuclear Regulatory Comission P.O. Box 125 3 Washington, DC 20555 Capitol Station Austin, Texas 78711 Dr. John H. Buck
- Atomic Safety and Licensin9 Hon. Jerry Sliva, Mayor Appeal Board City of Wallis,Mur:~=. Texas 77485 U.S. Nuclear Regu17atory: Comission Washington, DC
~20555 ~.
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-Hon. John R. Mikeska t;.
Austin County ludge
Michael C. Farrar, Esq.
P.O. Box 310 ~ ;'
2 Atomic Safety and Licensin9 Bellville, Texas 77418 Appeal Board U.S. Nuclear Regulatory Comission Mr. John F. Doherty Washington, DC 20555 4327 Alconcury Street Houston, Texas 77021 Sheldon J. Wolfe, Esq., Chairnan Atomic Safety and Licensing Board Panel Mr. and Mrs. Robert S. Framson U.S. Nuclear Regulatory Comission 4822 Waynesboro Drive Washington, DC 20555 Houston, Texas 77035 Dr. E. Leonard Cheatum Mr. F. H. Potthoff, Ill Route 3, Box 350A 1814 Pine Village Watkinsville, Georgia 30677 Houston, Texas 77083 Mr. Gustave A. Linenberger D. Marrack Atomic Safety and Licensing Board Panel 420 Mulberry Lane U.S. Nuclear Regulatory Comission Bellaire. Texas 77401 Washington, DC 20555 4
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Texas Public Interest Margaret Bishop Research Group, Inc.
11418 Dak Spring c/o Janes Scott, Jr., Esq.
Houston, Texas 77043 8302 Albacore Houston, Texas 77074 Glen Van 51yke 1739 Marshall Brenda A. McCorkle Houston, Texas 77098 l
6140 Darnell h
Houston, Texas 770/4 J. Morgan Bishop 11418 Dak Spring Mr. Wayne Rentfro Houston, Texas 77043 P.O. Box 1335 Rosenberg, Texas 77471 Stephen A. Doggett, Esq.
Pollan, Nicholson & Doggett 1
Rosemary N. Lemmer P.O. Box 592 1
11423 Dak Spring Rosenberg, Texas 77471 Houston, Texas 77043 Bryan L. Baker Charles Andrew Perez
.,1118 Montrose l
J 1014 Montrose tilvd.
Houston, Texas 77019 Houston, Texas 77019 Robin Griffith Leotis Johnston 1034 Sally Ann Rosenberg, Texas 77471 1407 Scenic Ridge Houston, Texas 77043 Elinore P. Cumings
)
Atomic Safety and Licensing
- 926 Horace Mann Appeal Board Rosenberg, Texas 77471 U.S. Nuclear Regulatory Corraission Washington, DC 20555 Mrs. Connie Wilson l
11427 Oak Spring Atomic Safety and Licensing
- Houston, Texas 77043 Board Panel jl U.S. Nuclear Regulatory Comission Ms. Kathryn Otto Washington, DC 20555 Route 2. Box 62L Richmond, Texas 77469 1
f Docketing and Service Section
- Office of the Secretary Carolina Conn l
U.S. Nuclear Regulatory Comission 1414 Scenic Ridge l
Washington, DC 20555 Houston, Texas 77043 l
f Mr. William J. Schuessler Mr. Robert Alexander 5810 Darnell 10925 Eriar Forest #1056 Houston, Texas 77074 Houston, TX 77042 i
Patricia L. Streilen R..Gordon Gooch, Esq.
Route 2, Box 398-C Baker & Botts Richmon, Texas 77469 1701 Pennsylvania Avenue, N.W.
i Washington, DC 20006 Donald D. Weaver P.O. Drawer V J. Gregory Copeland, Esq.
Simonton, Texas 77476 Baker & Botts One Shell Plaza Samuel J. Chilk Houston, Texas 77002 Secretary of the Commission U.S. Nuclear Regulatory Cornission Jack Newman, Esq.
Lowenstein, Reis, Newman & Axelrad Washington, DC 20555 1025 Connecticut Avenue, N.W.
Washington DC 20037 Carro Hinderstein 8739 Link Terrace Houston, Texas 77025 A
4 Stepnet M. Schinki Counsel for NRC Staff 6
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u, Febguary:8l, 1980-I UNITED STATES OF AMERICA NUCLEAR REGULATORY CO.'e!ISSION BEFORE THE COMMISSION In the Matter of
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HOUSTON LIGHTING & PONER COMPANY
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Docket No. 50-466
)
(Allens Creek Nuclear Generating
)
Station, Unit 1)
)
)
APPLICANT 'S RESPONSE TO PETITION FOR REVIEW OF DECISION OF ATOMIC SAFETY AND LICENSING APPEAL BOARD (ALAB-574)
On January 24, 1980, petitioners for leave to intervene Donald D. Weaver, Patricia L.
Streilein and Kathryn Otto (pe titioners), filed a petition for review of the Atomic Safety and Licensing Appeal Board's decision in ALAB-574. */
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Pursuant to 10 CFR S2.786 (b) (3), Applicant files this j
opposition to the petition for review.
I.
A.
Summary of the Decision Below On January 10, 1980, the Appeal Board affirmed the
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Licensing Board's ruling which dismissed the petitions for leave to intervene of. Donald D. Weaver, Patricia L. Streilein and Kathryn Otto.
The Appeal Board rejected petitioners' argument that a " Supplementary Notice of Intervention Pro-cedures" issued by the Licensing Board on June 18, 1979, was i
i invalid because of the provision in that notice requiring t
- / Houston Lighting & Power Company (Allens Creek Nuclear Generating Station), ALAB-574, NRC (Slip op.)
(January 10, 1980).
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petitioners to state that they failed to file petitions under the Board's prior notices (May and September,1978)
.because of certain restrictions contained in those notices.
In addition, the Appeal Board found it unnecessary to reach peti tioners ' argument that publication of the Supplementary Nu. ice in the Federal Register was not sufficient, ruling instead that petitioners had failed in their responsibility to ascertain the requisites for intervention as set forth in said Notice.
B.
Background
On December 28, 1973, a notice of hearing on the application to construct and operate the Allens Creek Nuclear Generating Station (ACNGS) which provided the opportunity for filing of intervention petitions was published in the-Federal Registerg.{38 Fed. Regv. 35521).- In.1.9.7 5,. af ter an _ ;_1.- ;
evidentiary hearing was held-on,certain.is. sues., App _licant-deferred the ACNGS application.
Subsequently, the Licensing Board issued a partial initial decision on these issues */
which was af firmed by the Appeal Board. **/
In 1977, the Applicant informed the Licensing Boara that it intended to resume. licensing of the ACNGS applica-tion (reduced from two units to one), and as a result, the
- / Houston Lighting & Power Company (Allens Creek Nuclear Generating Station, Units 1 and 2), 2 NRC 776 (1975).
- / Houston Lighting & Power Company (Allens Creek Nuclear Generating Station, Units 1 and 2)
ALAB-301, 2 NRC 853 (1975).
l I
Licensing Board issued on May 31, 1978, a notice of inter-vention procedures and on September 11, 1978, a corrected i
i notice of intervention procedures.
These two notices 1
allowed the filing of intervention petitions but required that contentions be related to changes in the design of the facility as a result of the reduction from two units to one or to new information or evidence unavailable prior to December, 1975.
The Appeal Board subsequently held in ALAB-535 that the restrictions on contentions set forth in the May and September notices were unwarranted and therefore, must be stricken from those notices. */
The Appeal Board, however, did not hold that the prior notices were void, thereby requiring a new notice be published; rather, the Appeal Board left it to the discretion of the Licensing
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Board whether to issue a new notice -
"out of an abundance
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of caution" -- which would allow intervention petitions to be filed by persons who had been discouraged from filing petitions under the prior notices because of the unwarranted restrictions contained in those notices. **/ On June 18, 1979, the Licensing Board exercised its discretion and, pursuant to the Appeal Board's guidance in ALAB-544, issued the Supplementary Notice.
This notice provided that petitions for leave to. intervene could be filed by any person "who did
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not file a petition pursuant to [the earlier] notices because
- / ALAB-544, 9 NRC 630, 632 (1979).
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of restrictions on permissible contentions contained therein" and the petitioner should so state in his petition.
44 Fed.
Reg, at 35062.
Pursuant to the Supplementary Notice, petitioners Weaver, Streilein and Otto filed petitions for leave to intervene.
Neither petitioner Weaver nor Streilein stated in their petition that he or she was deterred from filing a petition pursuant to the Board's prior notices because of the restrictions in those notices.
At the special pre-hearing conference held on October 15-19, 1979, neither petitioner was able to state, either in person or through counsel, to the satisfaction of the Board, whether they were discouraged from filing petitions earlier and if so, why they had f ailed.to so state in theirTetitions-for leave to -
- - ~
intervene.
Petitioner. Otto admitted in her pleadings and at..
the special prehearing conference that her failure to file a petition for leave to intervene earlier was not due to restrictions in the Board's prior notices, but because she was unaware of the prior notices and believed the proposed ACNGS facility to be a coal-fired or hydro-electric plant.
since none of the three petitioners satisfied the condition in the supplementary Notice, the Licensing Board dismissed their petitions and treated them as requests for limited appearances. */
- / ALSB Order dated November 19, 1979.
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4 On appeal, petitioners challenged the decision of the Licensing Board on grounds that (1) the restriction in the Supplementary Notice was invalid and (2) publication of the Supplementary Notice in the Federal Register was-insufficient to provide actual notice.
The Appeal Board rejected the first argument stating that the challenged restriction in the Supplementary Notice was imposed in " full conformity" with the Appeal Board's three opinions rendered in this proceeding (ALA3s.535, 539 and 544).
The Appeal Board held that, once the Licensing Board decided to exercise its discretion and provide a
" fresh chance to intervene," it was appropriate for the Board to include a provision in the Supplementary Notice requiring those_p.etsons filing petitions to " aver explicitly.
2._.r.'
that they were :within theilimited -class'-to.whom-thep supple.y.c. ;
mentary notice was addressed." (Slip op., p.
7).
As to the second argument, the Appeal Board found it unnecessary to decide the question raised by petitioners as to the adequacy of publication of the Supplementary Notice i
in the Federal Register because petitioners had a duty."to make inquiry into the possible existence of preconditions" for interventi...
(Slip op., p. 7).
The Appeal Board found that none of the petitioners did so in a satisfactory manner.
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. II.
The Appeal' Board's Decision in ALAB-574 Was Correct Petitioners' attack on the Appeal Board's decision is founded on the premise that the Licensing Board's May and September 1978 notices were void because of the improper restrictions contained therein.
In the circumstances, petitioners argue, by implication, that the Licensing Board was obligated to issue a de novo notice without any restric-tions of the type incorporated in the Supplementary Notice.
Petitioners cite no cases or agency regulations to support this bare assertion that the notices were void (and cited none to the Appeal Board).
The Appeal Board never concluded
't only that the May and September notices were void, struck down as unwarranted the restrictions on ntentions set forth in these notices.
The Licensing Board. subsequently issued the SupplAmentary-Notichkin~11ghtrof+therAppdal: -
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Board's concern that persons might have been discouraged i
from filing intervention petitions because of those restrictions. -
The Appeal Board correctly held that once the Licensing Board had decided to close the gap and afford those persons who were discouraged from filing petitions under the prior notices an opportunity to file new petitions, it was appropriate to include in the new notice a provision requiring those persons to show that they were within the class of persons to whom the notice was addressed. (Slip op., pp. 6-7),
i
7-The Appeal Board held further, in considering the adequacy of the Supplementary Notice, that petitioners had an obligation "to make inquiry" into the conditions for intervention imposed by the Supplementary Notice. */ None of the petitioners made any attempt to meet this obligation, although a copy of the Supplementary Notice was easily obtainable from the local public document room.
Peti-tieners argue that they had no " duty to ascertain and comply with requirements in a notice which notice petitioners are claiming is improper and constitutional 1y -insufficient." (p.4).
i This argument is based on the same faulty premise underlying petitioners' first attack on the Appeal Board's decision and fails for the same reason.
The facts are that simple steps could have been taken n : --
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r-at least by petitioners Streilein' and We' ave'r, ' to' meet the s
requirements of the Supplementary Notice.
Petitioner
- / Petitioners' argument that publication of the Supple-mentary Notice in the Federal Register is insufficient to provide " fair notice and is a denial of due process",
although not reached by the Appeal Board, is without merit.
The statute clearly provides, and~ Court and NRC decisions have held, that publication of notice of hearing or opportunity of hearing in the Federal Register is deemed legal notification' to all persons.
44 U.S.C.
51508; Federal Crop Insurance Corp. v.
Merrill, 332 U.S. 380, 384-85 (1947);-Buckner Trucking, Inc. v. United States, 354 F. Supp. 1210, 1219 (S.
D. Texas, 1973); Aris Gloves, Inc. v. United States 281 F.2d 954 (1958) cert. denied, 368 U.S.
954; Long Island Lighting Company (Jamesport Nuclear Power Station, Units 1 and 2),
ALAB-292, 2 NRC 631, 646-47 (1975); Project Management Corporation (Clinch River Breeder Reactor Plant), ALAB-354, 4 N RC 3 8 3, 389 (1976); Florida Power and Light Company (Turkey Point Nuclear Generating Station, Units 3 and 4),
ALSB's Order Ruling on the Petition of Mark P. Oncavage, Slip op. pp. 16-17 (August 3, 1979).
s.
-,--.,---n
--8 Streilein failed to provide the Board with additional infor-mation with respect to her intervention as requested by the Board.
(see Tr. 1227-30).
Likewise, petitioner Weaver's I
representations to the Board (made through a third party) were insufficient to satisfy the Board that indeed Mr.
Weaver was discouraged from filing an intervention petition by the Board's prior notices. (See Tr. 1233-35).
As to Ms.
Otto, little cculd be expected for she was clearly not within the class of persons covered by the Supplementary Notice.
Accordingly, the Appeal Beard held correctly that the requirements of the Supplementary Notice were reasonable and that the petitioners "did little, if anything" to make themselves aware of these requirements and discharge their k
' N W""
"N "M
related obligat' ions'.
i(S lip op., 'p'.' 9)'
The Commishion 'Sh'ould' Dec'1'ine Redied'o'f AfAB'-374 III.
The provisions of 10 CFR 52.786 (b) (4) (1) state that the Commission will not ordinarily grant a' petition for review unless, inter alia, the petition raises "an important procedural issue, or otherwise raises important questions of public policy."
Neither of these considerations is present in this case and, accordingly, the Commission should decline to review.he Appeal Board's decision in ALAB-574. */
4
- / The other f actors set f orth in 52.786 (b) (4) (ii)-(iv) which might warrant Ccamission review are neither discussed by petitioners nor are applicable to the petition for review.
v.
.~,
-we-
9_
The argument raised by petitioners and rejected by the Appeal Board with respect to the requirements for interven-tion contained in the Supplementary Notice is a narrow procedural question relating sclely to the factual circum-stances of the ACNGS proceeding.
The issuance of the Supple-mentary Notice arises out of a unique set of~ circumstances peculiar to this reactivated proceeding and is unlikely to be repeated in other licensing proceedings.
The Appeal Board has carefully examined the procedural aspects of this I
case in four separate decisions and in each, has made sure that the procedural rights of the petitioners were fully protected.
Nor does the petition involve an important question of public policy.
Petitioners complain that they are in effect being kept out of the ACNGS proceeding because of a u
.e.
av, v
" legal technicality; _ The. " legal technicality" of which they complain, however, is nothing more than the minimal set of requirements for intervention contained in the Commis-sion's regulations.
Petitioners would have the Commission step in and reverse the Appeal Board on grounds that they should be allowed to intervene in this proceeding without meeting those requirements.
Petitioners have not advanced a consideration of public policy sufficient to warrant such' Commission action.
- a IV.
Conclusion For the reasons discussed above, the Commission should deny the petition for review.
Respectfully submitted,
/)
hclt I.
An n
/
ack R.
Newman
(
Robert H. Culp i
David B. Raskin 1025 Connecticut Avenue, NW Washington, DC 20036 J. Gregory Copeland C. Thomas Biddle.
Charles G. Thrash 3000 One Shell Plaza Houston, Texas 77002 ATTOPSEYS FOR APPLICAN'T' HOUSTON LIGHTING & POWER COMPANY OF COUNS.:
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LOWENSTEIN,gNEWf% % EEIS,,,.,,;,,,,.,_..
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AXELRAD & TOLL 1025 Connecticut Avenue, NW Washington, DC 20036 BAKER AND BOTTS 3000 One Shell Plaza Houston, Texas 77002 t
,a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION E
BEFORE THE COMMISSION
)
In the Matter of
)
HOUSTON LIGHTING & POWER COMPANY
)
Docket No. 50-466
)
(Allens Creek Nuclear Generating
)
)
Station, Unit 1)
)
CERTIFICAT_E OF SERVICE I hereby certify that copies of Applicant's Response to Petition for Review of Decision of Atomic Safety and Licensing (ALAB-574) in the above-captioned proceeding were Appeal Boa?d served on the following by deposit in the United States mail, postage pre-paid or by hand delivery, this 8th day of February e
1980:
Dr. John Buck Mr. John Ahearne, Chairman Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Mr. Joseph M. Hendrie_
Washington, DC 20555,-
U Gn M n; P.
C.
r 1;35 U.S. Nuclear Reyblatory "i Tes c=
Commission Michael Farrar, Esqr t r r : e m -
Atomic Safety and Licensing Washington, DC 20555 Appeal Board U.S. Nuclear Regulatory Mr. Victor Gilinsky Cor5 mission U.S. Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555 Sheldon J. Wolfe, Esq., Chairman Atomic Safety and Licensing Mr. Richard T.
F.ennedy Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Dr. E. Leonard Cheatum l
Mr. Peter Bradford Route 3, Box 350A U.S. Nuclear Regulatory Watkinsville, Georgia 30677 Commission Washington, DC 20555 Mr. Gustave A. Linenberger Atomic Safety. and Licensing Alan Rosenthal, Esq., Chairman Board Panel Atomic Safety & Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washington, DC 20555 Commission Washington, DC 20555
.s.;*
- John F. Doherty Chase R. Stephens Docketing & - Service Section 4327 Alconbury Street Office of the Secretary Houston, Texas 77021 of the Commission U.S. Nuclear Regulatory Commission Madeline Bass Framson.
Washington, DC 20555 4822 Waynesboro Drive Houston, Texas 77035 R.
Gordon Gooch, Esq.
Robert S. Framson Baker and Botts 1701 Pennsylvania Avenue, NW 4822 Waynesboro Drive Washington, DC 20006 Houston, Texas 77035 Carro Hinderstein Richard Lowerre, Esq.
Assistant Attorney General 8739 Link Terrace for the State of Texas Houston, Texas 77025 P. O. Box 12548 D. Marrack Capitol Station Austir, Texas 78711 420 Mulberry Lane Bellaire, Texas 77401 Hon. Charles J. Dusek Brenda McCorkle Mayor, City of Wallis 6140 Darnell P.
O. Box 312 Wallis, Texas 77485 Houston, Texas 77074 l
Hon. Leroy H.
Grebe F. H. Potthoff, III l
County Judge, Austin County 7200 Shady Villa, #110 P.
O.
Box 99 Houston, Texas 77080 l
Bellville, Texas 77419 u-~
~
Wayne E. Rentfro Atomic Safety and. Li'cens1 3,,,,a.
~ ng. -
P. O. Box 1335
~~
Rosenberg, Texas 77471 Appeal Board U.S. Nuclear Regulatory James M. Scott, Jr.
Commission Washington, DC 20555 8302 Albacore Houston, Texas 77074 Atomic Safety cnd Licensing Charles Pere:
Board Panel U.S. Nuclear Regulatory 1014 Montrose Blvd.
Houston, Texas 77019 Commission Washington, DC 20555 Elinore P. Cumings Route 1, Box 138 V Leonard Bickwit, Esq.
General Counsel Rosenberg, Texas 77471 l
U.S. Nuclear Regulatory William Schuessler Commission Washington, DC 20555 5810 Darnell Houston, Texas 77074 Steve Schinki, Esq.
Staff Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 I
4 4
T 3.-
- 4
(
Stephen A. Doggett, Esq.
Connie Wilson P.O.
Box 592 11427 Oak Spring Rosenberg, Texas 77471 Houston, Texas 77043 Bryan L. Baker Ron Waters 1118 Montrose 3620 Washington Avenue Houston, Texas 77019 No. 362 Houston, Texas 77007 J. Morgan Bishop TexPIRG Margaret Bishop 11418 Oak Spring Att:
Clarence Johnson Houston, Texas 77043 Executive Director Box 237 U.C.
Carolina Conn University of Houston 1414 Scenic Ridge Houston, Texas 77004 Houston, Texas 77043 Robert Alexander Leotis Johnston 10925 Briar Forest #1056 1407 Scenic Ridge Houston, Texas 77042 Houston, Texas 77043 Robin Griffith 1034 Sally Ann Rosenberg, Texas 77471 W. Matthew Perrenod 4070 Merrick Houston, Texas 77025 Glen Van Slyke 1739 Marshall l
[
f Houston, Texas 77098 rf&b fW Marlene R. Warner 6026 Beaudry Houston, Texas 77035 Rosemary N. Lemmer 11423 Oak Spring Houston, Texas 77043 O