ML20045E820
| ML20045E820 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 04/16/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-055, SECY-A-80-55, NUDOCS 9307060087 | |
| Download: ML20045E820 (8) | |
Text
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UNITED STATES NUCt. EAR REGULATORY COMMISSION ADJUDICATORY ITEM SECY-A-80-55 April 16, 1980 COMMISSIONER ACTION M
The Commission From:
James A. Fitzgerald Assistant General Counsel
Subject:
ALAB-585 and ALAB-586 (Houston Lighting and Power Company)
Facility:
Allens Creek Nuclear Generating Station, Unit 1 I
Review Time Expires:
April 24 and April 28, 1980-(respectively)
Purpose To inforn the Commission of two Appeal Board decisionsI 6bb in our opinion, Discussion:
These two Appeal Board decisions dismiss appeals from a Licensing Board order as unauthorized under the Commission's Rules of Practice.
ALAB-585 concerns the Licensing Board's deferred ruling on William J. Schuessler 's petition to intervene.
After rejecting his other contentions, the Board deferred its decision on the admissability of the tuo remaining contentions relating to emergency planning pending final Commission action on certain proposed amendments to emergency planning regulations.
Since Mr. Schuessler's participation as a party hinges upon the admissability of at least one contention, his petition to intervene has not yet been denied.
Thus he is prohibited from I
Im tion in this recod was gg;g gg NTACT:
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2 4-taking an interlocutory appeal until such time as his petition is denied in its entirety.
10 CFR 2.714a; Gulf States Utilities Co.
(River Bend Station, Units 1 and.2), ALAB-l 329, 3 NRC 607, 610 (1976). 1/
As both the Licensing Board and Appeal Biiard noted, should his contentions be rejected, Mr.
Schuessler may then appeal from the denial. -
In ALAB-586 the Appeal Board dismissed-another appeal of certain rejected contentions by a petitioner whose intervent. ion petition was granted on the basis'.of a separate contention. F O'
OGC believen
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Recommendation:
/
h ames A. F1 zgerald Assistant General Counsel Attachments :
'l 1.
ALAB-585 2.
ALAB-586 Comissioners' coments should be provided directly'to the Office of the-Secretary by c.o.b.
Thursday, April 24, 1980.,,
Comission Staff Office coments, if any, should be submitted to the Comissioners NLT April 21, 1980, with an infonnation copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and coment, the Comissioners and the Secretariat should be apprised of when coments may be expected.
DISTRIBUTION Comissioners Comission Staff Offices
? Secretariat 1/
10 CFR 2.714a(b) provides:
(b)
An order wholly denying a-petition for leave to intervene and/or request for a hearing is appealable by the petitioner on the question whether the petition and/or hearing request should have been granted in whole or. in part.
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.?. i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S. Rosenthal, Chairman Dr. John H. Buck Michael C. Farrar
)
In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY
)
Docket No. 50-466
)
(Allens Creek Nuclear Generating
)
Station, Unit 1)
)
)
)
Mr. William J. Schuessler, Houston, Texas, appellant pro se.
MEMORANDUM A!O ORDER
' arch 25, 1980 M
( ALAB-585)
'l.
In the course of its unpublished March 10, 1980 order, the Licensing Board considered (at pp.91-103) the admissi-bility of the contentions advanced by William J. Schuessler in connection with his petition for leave to intervene in this construction permit proceeding involving the Allens Creek nuclear facility.
For one reason or another, all'but contentions 6 and 14 were rejected.
Those two contentions dealt with the feasibility of evacuating persons in the Allens Creek area should there be'a serious accident at the facility.
ATTACHMENT 1
1 The Board combined the contentions and announced it would i
defer ruling upon their admissibility pending final Commission action upon certain proposed amendments to existing emergency planning regulations.
See 44 Fed. Reg. 75167 (December 19, 1979).
The Board went on to indicate (at p. 103) that, once the Commission had acted, P
we will either rule upon the admissibility of the combined contentions or permit Mr. Schuessler to amend them.
At that subsequent time, should we reject said combined contentions and deny his peti-tion for leave to intervene, Mr. Schuessler's right is preserved to appeal to the Atomic Safety and Licensing Appeal Board within ten (10) days after service of such an order wholly denying his petition for leave to intervene.
l Apparently not willing to await the disposition of com-bined contentions 6 and 14, Mr. Schuessler has endeavored to appeal to us from the rejection of the other contentions.
]
+
2.
It is manifest that the appeal must be summarily dis-missed on the ground that it is unauthorized by the Commission's i
Rules of Practice.
Those Rules do not permit a person to take an. interlocutory appeal from an order entered on his intervan-tion petition unless that order has the effect of denying the -
petition in its entirety.
10 CFR 2.714a; Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-329, 3 NRC 607, 610 i
i l
4
. 4 (1976), and cases there cited.
As has been seen, the March 10 order would not have that effect; to the contrary, the Licensing Board has withheld its decision on the grant or denial of Mr.
Schuessler's petition pending its ruling on combined conten-tions 6 and 14.
As the Licensing Board correctly noted, should the combined contentions ultimately be rejected and his intervention peti-tion accordingly denied, Mr. Schuessler will be able then to take an appeal under 10 CFR 2.714a. b!
The question on any such appeal would be whether at least one of his several con-tentions should have been accepted as litigable, with the conse-quence that his intervention petition should have been granted.
See Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-134, 6 AEC 423, 424 (1973). b/
On the 1/
In this connection, Mr. Schuessler's papers before us
~~
reflect an erroneous belief that appeals under Section 2.714a must be filed within 10 days of the date upon which the challenged order is served by mail.
He ob-viously overlooked the provisions of 10 CFR 2.710 to the effect that:
Whenever a party has the right or is required to do some act or take some proceeding within a prescribed period after the service-of a no-1 tice or other paper upon him and the notice or j
paper is served upon him by mail, five (5) days shall be added to' the prescribed period.
2/
There appears to be no dispute that Mr. Schuessler, who 1
resides 35 miles from the f acility, has established the requisite standing to. intervene.
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d other hand, should the Licensing Board eventually decide to entertain combined-contentions 6.and 14 and the intervention petition be accordingly granted, Mr. Schuessler will have to wait until the Board renders its initial decision before com-plaining to us of the rejection of his other contentions. S i
Appeal dismissed.
It is so ORDERED.
FOR THE APPEAL BOARD O,.b md
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C. Je '
Bishop Secret ry to the Appeal Board i
l Mr. Farrar did not participate in the consideration or 4
disposition of this matter.
' i i
i 3/
Any complaint along that line would be asserted as part of Mr. = Schuessler's appeal 'from the initial decision taken under 10 CFR 2.762 (a) (were that decision to be-regarded by him as sufficiently unfavorable to warrant his seeking to overturn it).
1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION W
ATOMIC SAFETY AND LICENSING APPEAL BOARD
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Alan S. Rosenthal, Chairman 2
3 MAR 28;ggg, ;
Dr. John H. Buck 6-Michael C. Farra ofg,7 lg f
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fa eh
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Cb In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY
)
Docket No. 50-466
)
(Allens Creek Nuclear Generating
)
Station, Unit 1)
)
)
Mr. Brvan Baker, Houston, Texas, appellant pro se.
MEMORANDUM AND ORDER March 27, 1980 (ALAB-586)
Bryan Baker endeavors to appeal from so much of the Licens-order as re ected one of j
ing Board's unpublished March 10, 1980 the contentions submitted in connection with his petition *for leave to intervene in this construction permit proceeding.
It appears, however, that Mr. Baker's intervention petition was granted on the strength of another contention advanced'by him.
Order, pp. 45-47.
In these circumstances, the appeal must be summarily dismissed on the ground that it is unauthorized by the ATTACHMENT 2
e.
Commission's Rules of Practice.
As we had occasion to observe a few days ago in disposing of the appeal of another petitioner dissatisfied with the March 10 order:
Those Rules do not permit a person to take an interlocutory appeal from an order entered on his intervention petition unless that order has the effect of denying the petition in its entirety.
10 CFR 2.714a, Gulf States Util-ities Co. (River Bend Station, Un2.ts 1 and 2),
ALAB-329, 3 NRC 607, 610 (1976), and cases there cited.
(March 25, 1980). 1!
ALAB-585, 11 NRC Appeal dismissed.
It is so ORDERED.
FOR THE APPEAL BOARD O. b4 A e)\\
C. Je g Bishop Secretary to the Appeal Board 1/
As ALAB-585 went on to point out, an intervenor in Mr. Baker's situation must avait the rendition of the
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Licensing Board's initial decision.
If dissatisfied with that decision, the intervenor can take an appeal from it under 10 CFR 2.762 (a).
One of the matters that can be raised on such an appeal is whether the Licensing Board erred in rejecting one or more of the appellant's contentions.
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