ML20057G207

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NRC Staff Response to Cajun Electric Power Cooperative,Inc Contentions.* Denies Util Petition for Hearing & Request to Intervene Due to Failure to Raise Contention Admissible for Hearing Under Stds Set in 10CFR2.714.W/Certificate of Svc
ML20057G207
Person / Time
Site: River Bend Entergy icon.png
Issue date: 10/13/1993
From: Hodgdon A
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
Atomic Safety and Licensing Board Panel
References
CON-#493-14377 OLA, NUDOCS 9310210038
Download: ML20057G207 (16)


Text

/t;/377 October 13 1993 0

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'93 001 14 P 4 :10 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

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GULF STATES UTILITIES COMPANY

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Docket No. 50-458-OLA

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(River Bend Station, Unit 1)

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Re: License Amendment

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(Transfer of Ownership and Control)

NRC STAFF RESPONSE TO CAJUN ELECTRIC POWER COOPERATIVE, INC.'S CONTENTIONS l

INTRODUCTION t

On August 31, 1993, Cajun Electric Power Cooperative, Inc., (Cajun), filed its

" Amendment and Supplement to Petition for Leave to Intervene, Comments and Request for Hearing" (Supplement), in which it proposed seven contentions for litigation in a l

1 hearing that Cajun had requested in a filing of August 6,1993.

On September 15,1993, Gulf States Utilities (GSU) and the Nuclear Regulatory Commission (NRC) Staff addressed Cajun's contentions in oral argument at a prehearing conference and Cajun replied to that argument. The Atomic Safety and Licensing Board set a schedule for written responses to Cajun's contentions. Tr. 86. In accordance with that schedule, GSU responded in opposition to the contentions on September 29,1993.

The NRC Staff was given until October 13, 1993, to respond to the contentions.

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2-BACKGROUND E

On July 7,1993, the NRC published in the Federal Register a " Notice of Consideration of Issuance of Amendments to Facility Operating Licenses, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing."

58 Fed. Reg. 36,423. That notice included two proposed amendments to Gulf States Utilities' River Bend operating license, one, noticed at 58 Fed. Reg. 36,435, concerning a revision to the license to reflect a change in ownership of Gulf States Utilities, and the other, noticed at 58 Fed. Reg. 36,436, concerning a revision to the license to include Entergy Operations Inc. (EOI) as a licensee and to authorize EOI as agent for the owners to use and operate River Bend. Both notices included proposed no significant hazards consideration determinations.

The general " Notice of Consideration of Issuance" specified that any person whose interest might be affected by the proceeding and who wished to participate as a party "must file a written request for a hearing and a petition for leave to intervene by August 6,1993." 58 Fed. Reg. 36,423; 36,424.

On August 6,1993, Cajun Electric Power Cooperative, Inc. filed a " Petition to Intervene, Comments on the Proposed No Significant Hazards Consideration Determination and Request for a Hearing" (" Petition"). By a memorandum from the

' Cajun states in its " Petition for Leave to Intervene," filed August 6,1993, that its petition is pursuant to the Commission's FederalRegister notice at 58 Fed. Reg. 36,435, which is where the notice of the pyosed amendment regarding change of ownership appears; however, it is clear from Cajun's comments that its concern is primarily if not entirely with the proposed change of operation, which is noticed at 58 Fed. Reg. 36,436.

The Staff noted the discrepancy in its " Response to Cajun Electric Power Cooperative, Inc's Comments, Petition and Amended Petition for Leave to Intervene....," filed August 26,1993, at 2, n. 3. Cajun, in its Supplement, announced that it was its intention to intervene on both amendment requests. Supplement at 5-6. Cajun reiterated this (continued...)

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Commission's Secretary to the Chief Administrative Judge dated August 17,1993, the Commission referred Cajun's Petition for appropriate action. Pursuant to the referral, an Atomic Safety and Licensing Board was established on August 17,1993, to consider Cajun's Petition. Also, on August 17,1993, Cajun filed an amendment to its Petition.2 On August 23, 1993, Gulf States Utilities Company filed its " Opposition.... to the Petition to Intervene and Request for a Hearing of Cajun Electric Power Cooperative, 6

Inc." On August 26,1993, the NRC Staff filed its " Response to Cajun Electric Power l

Cooperative, Inc's Comments, Petition and Amended Petition for leave to Intervene and Request for Hearing." In its " Opposition," Gulf States Utilities argued that Cajun had failed to show standing to intervene on the proposed amendments in that the injury Cajun alleged was merely economic and thus not cognizable under the Atomic Energy Act and the Commission's regulations, was not related to the proposed amendments and was too speculative to support intervention. The NRC Staff argued in its " Response" that Cajun t

had demonstrated standing in that it had shown a property interest in River Bend i

protectable under the Atomic Energy Act relating to radiological damage that might be caused by the subject amendments. On August 27,1993, the Licensing Board issued an Order in which it scheduled a prehearing conference for September 15, 1993, to hear argument on the petition to intervene and responsive pleadings.

3 (... continued) intention at the prehearing conference. Tr. 20. The NRC Staff argued that Cajun had not demonstrated standing with regard to the proposed change in ownership of GSU. Tr.

41.

2 " Cajun Electric Power Cooperative, Inc.'s, Amendment to Its Previously Filed Comments, Petition for 12 ave to Intervene, and Request for Hearing...," (Amendment to Petition).

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4 As stated above, Cajun filed its contentions on August 31,1993, and all parties argued their admissibility at the prehearing conference held on September 15, 1993.

DISCUSSION 1.

Admissibility of Contentions To be admitted as a party, a petitioner must proffer at least one valid contention.

The requirements for admissible contentions are set forth in 10 C.F.R. $ 2.714(b)(2),

which requires that each contention consist of a specific statement of the issue oflaw or fact to be raised or controverted, an explanation of the bases for the contention, a concise statement of the alleged facts or expert opinion on which the petitioner intends to rely in proving the contention at the hearing together with ' references to those specific sources and documents on which the petitioner intends to rely to establish those facts or expert opinion, and sufficient information to show that a genuine issue exists with the applicant on a material issue of law or fact.

Subsection (d)(2) further provides that a presiding officer or adjudicatory board designated to rule on the admissibility of a contention shall refuse to admit a contention if (a) the contention and supporting material fail to satisfy the requirements of 10 C.F.R. 6 2.714(b)(2), or (b) "the contention, if proven, would be of no consequence in the proceeding because it would not entitle petitioner to relief." 10 C.F.R. 5 2.714(d)(2);

see Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (August 11, 1989).

If any one of these requirements is not met, the contention must be rejected. Arizona Public Senice Co.

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(Palo Verde Nuclear Generating Station, Units 1,2, and 3), CLI-91-12,34 NRC 149, 155 (1991).

These pleading rules specifically require a petitioner to explain the basis for the contention, provide a concise statement of the alleged facts or expen opinion which support the proposed contention, and provide sufficient information to establish the r

existence of a genuine dispute with the applicant on a material issue oflaw or fact. Palo Verde, CLI-91-12,34 NRC at 155-56; Georgia Power Co. (Vogtle Electric Generating i

Plant, Units 1 and 2), LBP-91-21, 33 NRC 419, 422-24 (1991), appeal dismissed, CL1-92-3, 35 NRC 63 (1992). The pleading rules do not permit the filing of vague, unpanicularized contentions. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-942, 32 NRC 395, 416-17 (1990). Indeed, it is error for a i

Licensing Board to infer a basis for the petitioner's contentions when the petitioner has i

failed to comply with the requirement to provide a basis for the contention and to provide i

sufficient information to support the contention. Palo Verde, CLI-91-12, 34 NRC at i

155-56. See also Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-91-39, 34 NRC 273, 279 (1991) (Licensing Board is "not free to assume any missing information in a contention.")

l The rules require a showing that "a genuine dispute exists with the applicant on 1

a material issue of law or fact." 10 C.F.R. 6 2.714(b)(2)(iii). Further, a contention will not be admissible where "if proven, [it] would be of no consequence in the proceeding because it would not entitle petitioner to relief." 10 C.F.R. 6 2.714(d)(2). See Vennont Tankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-90-6,

." T 31 NRC 85, 91 (1990); Public Service Co. of Infiana, Inc. (Marble Hill Nuclear i

Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167,170 (1976). See also Wisconsin Elec. Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739,

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18 NRC 335,339 (1983).

In addition, a contention must raise mattern appropriate for adjudication in a particular proceeding to (1) establish a sufficient fouridation for the contention to warrant further inquiry into the subject matter addressed by the assertion, and (2) put the other parties sufficiently on notice of the issues so that they know generally what they will have to defend against or oppose. See 54 Fed. Reg. 33,169; 33,171; Philadelphia Electric Co.

(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1976).3 A contention must fall within the scope of the issues set forth in the notice of hearing. See Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316,3 NRC 167,170-71 (1976); see also Wisconsin Electric Co.

(Point Beach Nuclear Plant, Units 1 and 2), ALAB-739,18 NRC 335,339 (1983).

The alleged facts on which a contention is based must be sufficient to demonstrate that a genuine dispute of law or fact exists. 54 Fed. Reg. 33,170.d As stated in Duke The holding in Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 3

and 2), ALAB-130, 6 AEC 423, 425-26 (1973) and Houston Lighting & Power Co.

(Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542,546-49 (1980) that petitioners are not required to describe facts that would be offered in suppon of a proposed contention is not viable under the revised rule. Sec 54 Fed. Reg. 33,170.

' A petitioner does not establish an adequate basis for a contention by simply referencing a large number of documents, but must clearly identify and summarize the facts on which the contention is based. Commonwealth Edison Co. (Braidwood Nuclear (continued...)

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7-Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687,16 NRC 460,468 (1982), vacated in pan on other grounds, CLI-83-19,17 NRC 1041 (1983):

[A]n intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any information that could serve as the foundation for a specific contention.

Neither Section 189a of the Atomic Energy Act nor i 2.714 of the Rules of Practice permits the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or Staff.

In sum, to set forth an admissible contention, a petitioner must examine publicly available information to provide some factual basis for its position and demonstrate that there exists a genuine dispute between it and the licensee. 54 Fed. Reg. 33,171. The Commission's regulations preclude "a contention from being admitted where an intervenor has no facts to support its position and where the intervenor contemplates using discovery or cross-examination as a fishing expedition which might produce relevant supporting facts." Id.; see also BPI v. AEC, 502 F.2d 424, 429 (D.C. Cir.

1974). A person or organization seeking admission to a licensing proceeding is expected to have read "the portions of the application (including the applicant's safety and environmental reports) that address any issues of concern to it and demonstrate that a i

dispute exists between it and the applicant on a material issue of fact or law."

54 Fed. Reg. 33,171.

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Power Station, Units 1 and 2), LBP-85-20, 21 NRC 1732,1741 (1985), rev'd and remanded on other grounds, CLI-86-8,23 NRC 241 (1986).

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II.

Caiun's Contentions are Inadmissible.

Cajun's contentions fail to satisfy the pleading requirements set forth above. The plain text of the proposed contentions demonstrates the purely economic or contractual nature of Cajun's claims. Thus, the contentions are irrelevant and immaterial to this proceeding because they bear no relation to the issues noticed in the Federal Register and delegated by the Commission to this Board for consideration. Cajun's concerns are not related to the change of ownership of GSU and change of operator of River Bend, which are the subjects of the proposed amendments. In addition, Cajun has failed to provide sufficient bases for any of its contentions. Finally, the contentions, even if proven, f

I would not entitle Cajun to relief.

1 A.

Cajun's Contention I states:

The proposed amendments fail to reflect the public interest and interests of co-owners, wholesale customers and customers that may be affected by the outcome of the Cajun

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and Texas litigation.

Cajun fails to state in its basis what it perceives to be the relationship between the

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proposed amendments and the litigation that it says may bankrupt GSU. It states that there may be an " adverse financial impact" from the proposed merger and the litigation between Cajun and GSU, but does not indicate any harm to Cajun stemming from the proposed amendment that would be caused by Cajun prevailing in its litigation with GSU.

Nor is this harm shown to be a detriment to any interest created by the Atomic Energy Act and within the jurisdiction of this Board. Moreover, as a seventy percent co-owner of River Bend, GSU has always been required to fund River Bend operations on a pro i

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9 rata basis.5 Cajun fails to set forth the manner in which that situation'is changed by EOI's assuming responsibility for the operation of the plant.' In other words, from Cajun's filing it appears that the effect of GSU's bankruptcy would be the same without regard to who owns GSU and who operates River Bend. The Board should not admit Contention 1 as it lacks the basis required by the Commission's regulations in 10 C.F.R.

f 2.714(b) and does not show that it would entitle Cajun to any relief as required by 10 C.F.R. { 2.714(d)(2)(ii).

B.

Cajun's Contention 2 states:

The proposed amendments may result in a significant reduction in the margin of safety at River Bend.

The statement of the contention expresses Cajun's concern that the margin of safety might be significantly reduced should the proposed amendments be granted.

However, Cajun provides no basis for such an allegation. Rather, the discussion that Cajun offers as a basis for Contention 2 concerns not margin of safety but funding and the possibility that River Bend might have to be shut down because of the unavailability of funds to operate the plant. Cajun discusses the " potential shutdown scenario," but the Supplement is silent as to how that scenario relates to unsafe operation. Cajun offers no a.

Cajun as a thirty percent co-owner would continue to be responsible for thirty 5

percent of River Bend's operating costs if the proposed amendments were granted. Sec Joint Ownership Participation and Operating Agreement, River Bend Unit 1 Nuclear Plant, August 20,1979.

6 Further, Cajun supplies no basis for the proposed license condition contained in the basis for this contention. See Amendment to Petition at 10. It is unexplained how the amendment in conjunction with the litigation affects GSU's financial responsibilities in regard to River Bend.

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t support for the proposition that operation by EOI is more likely to result in'a reduced margin of safety as compared with operation by GSU.7 l

The Licensing Board should not admit Cajun's Contention 2, as it fails to fulfill the requirements of the Commission's regulation in 10 C.F.R. 6 2.714(b) and (d) regarding basis.

C.

Cajun's Contention 3 states:

The proposed license amendment cannot be approved l

without Cajun's consent.

As discussed by the parties at the prehearing conference, see Tr. at 57,68-69, 77-78, Cajun's Contention 3 raises a question of contract that is not litigable before the NRC. If Cajun believes GSU is operating beyond the authority granted in contracts, its remedy is in state court. Cajun's Contention 3 does not raise a litigable issue and the l

Licensing Board should not admit it.

D.

Cajun's Contention 4 states:

The proposed license amendments will adversely affect Cajun's rights regarding the operation of River Bend.

j The rights that Cajun alleges will be adversely affected by EOI operation are economic interests that may be protectable in another forum, but are not cognizable 7 GSU, in its " Opposition," filed September 29,1993, argues that the contention is inadmissible because it impermissibly attacks the Staff's proposed no significant hazards i

consideration determination. Opposition at 15. Cajun's Supplement addresses GSU's filing pursuant to 10 C.F.R. Q 50.91(a), which requires licensees requesting amendments to provide an analysis of no significant hazards consideration using the standards in l' 50.92. Supplement at 12. While the Staff's "no significant hazard" determination is not subject to review in an adjudicatory hearing, if the provisions of 10 C.F.R. 6 2.714 have been satisfied, the question of whether the amendment should have been issued can be litigated under 10 C.F.R. i 50.91(a)(6)(B)(v) after the amendment has been issued.

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! i before the NRC in this proceeding. Cajun argues that the Entergy Operating Committee, 4

rather than GSU, will make critical decisions regarding loading criteria for River Bend 1

additions or changes in facilities related to production requirements, refueling outages, and system dispatching and switching, but does not show how this will cause any harm to Cajun that may be considered by this Board as it has been constituted by the Commission. Rather they seem to be solely economic matters. See Supplement at 15-16.

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t Cajun lists six " additional detrimental impacts." First in Cajun's list of " additional l

detrimental impacts" is lack of privity with the operator; however, Cajun fails to state-how this lack of privity constitutes an injury protectable under the Atomic Energy Act.

Similarly, as a second impact, Cajun lists impairment of its right to access to audits, but fails to state what rights it enjoys under GSU operation that it stands to lose under EOI operation. The third purported impact concerns budgets and costs, a wholly economic

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concerns. The fifth also concerns costs, and not health and safety matters. Last, Cajun i

includes in the list a complaint that the Operating Agreement limits EOl's liability to actions that constitute gross negligence or willful misconduct. This is a contract matter between GSU or EOI and Cajun, and not a health and safety matter for this Board.

Thus, Cajun has failed to raise any matter within the health and safetyjurisdiction of this Board that could be considered in this proceeding.

Cajun's Contention 4 does not satisfy the requirements of 10 C.F.R. 6 2.714 regarding contentions and it should not be admitted.

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E. Cajun's Contention 5 states:

The proposed license amendments cannot be approved without certain license conditions.

i Cajun offers no basis for this Commission to impose any of the eight license r

conditions it sets out as minimal conditions needed to protect its interests.

See Supplement at 18. Cajun nowhere argues that the imposition of the license conditions is i

necessary to protect Cajun's interests from radiological harm on grant of the amendment.

For example, in support of the fourth license condition, Cajun states that it must have meaningful input into decisions related to maintenance * 'd fuel outages, budgets, capital r

improvements and major maintenance terms. However, Cajun has not alleged that it will suffer any injury in fact within the zone ofinterests protected by the Atomic Energy Act that would be caused by the proposed change. Similarly, no nexus is shown between any I

of the other proposed conditions and protection of Cajun from radiological harm. Thus, Cajun has not set forth a basis for its Contention 5 that satisfies the Commission's regulations in 10 C.F.R. f 2.714(b). The Licensing Board should not admit Contention 5.

F.

Cajun's Contention 6 states:

The proposed ownership amendment should be approved only with conditions adequate to remedy its adverse impact on the Cajun /GSU Interconnection Agreement.

To the extent that Cajun's concerns expressed in its Contention 6 are cognizable before the NRC, they may be raised by way of comments on the antitrust aspects of transfer of ownership control. Cajun did, in fact, file comments in response to the Staff's FederalRegister notice of receipt of license amendment requests from GSU for approval l

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Q of the proposed transfer of ownership control and operation of the River Bend facility from GSU to Entergy Corporation. 58 Fed. Reg.16,236 (March 25,1993). Cajun's concerns have nothing to do with the " reasonable assurance of adequate protection of the public health and safety" finding that must be made in connection with the issuance of the proposed amendments. Rather, Cajun's concerns relate to matters addressed in Cajun's comments in response to Staff's Federal Register notice of March 25, 1993, regarding whether granting the proposed amendments would constitute a significant change in the licensee's activities or proposed activities such as to require a formal antitrust review. In its Contention 6, Cajun does not raise any matter over which this Licensing Board has jurisdiction. The Licensing Board should not admit Contention 6.

G.

Cajun's Contention 7 states:

The River Bend license conditions must be enforced.

Contention 7, like Contention 6, is a matter over which its Licensing Board has nojurisdiction because the Commission has not delegated to this Licensing Board matters concerning the antitrust aspects of the proposed merger. Beyond that, the GSU behavior of which Cajun complains does not seem to be related to the proposed amendments.

What Cajun is requesting in its Contention 7 is enforcement of two antitrust license conditions, which constitute a part of the River Bend licenses.

An allegation of nonconformance with license conditions is properly raised in a petition pursuant to 10 C.F.R. f 2.206. See Consolidated Edison Company of New York Ondian Point, Unit 2) and Power Authority ofthe State ofNew York Ondian Point, Unit 3), CLI-83-16, 17 NRC 1006,1009 (1983). Thus, in its Contention 7, Cajun has not raised a matter

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t CONCLUSION As discussed, Cajun has failed to raise a contention admissible for hearing under the standards set forth in 10 C.F.R. 5 2.714. Therefore, the Licensing Board should deny Cajun's petition for hearing and request to intervene.

Respectfully submitted, l

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W Ann P. Hodgdon Counsel for NRC Staff Dated at Rockville, Maryland this 13th day of October 1993 l

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tNr C UNITED STATES OF AMERICA

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NUCLEAR REGULATORY COMMISSION

'93 OCT 14 P4 :10 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ;;

+m In the Matter of

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)

GULF STATES UTILITY COMPANY

) Docket No. 50-458-OLA

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(River Bend Station, Unit 1)

) Re: License Amendment

) (Transfer of Ownership and Control)

CERTIFICATE OF SERVICE i

I hereby certify that copies of "NRC STAFF RESPONSE TO CAJUN ELECTRIC POWER COOPERATIVE, INC.'S CONTENTIONS" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 13th day of October 1993:

B. Paul Cotter, Jr

  • Office of Commission Appellate Chairman Adjudication
  • Administrative Judge Mail Stop: 16-G-15 OWFN Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: EW-439 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Adjudicatory File * (2)

Atomic Safety and Licensing Board Richard F. Cole

  • Panel Administrative Judge Mail Stop: EW:439 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: EW-439 Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Board Panel
  • Peter S. Lam
  • Mail Step: EW-439 Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 Mail Stop: EW-439 U.S. Nuclear Regulatory Commission i

Washington, DC 20555 t

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i Office of the Secretary * (2)

James D. Pembroke, Esq.

Atta: Docketing and Service Janice L.-Lower, Esq.

Mail Stop: 16-G-15 OWFN Thomas L. Rudebusch U.S. Nuclear Regulatory Commission Duncan, Weinberg, Miller -

l Washington, DC 20555

& Pembroke, P.C.

1615 M Street, N.W.

Mark J. Wetterhahn, Esq.

Washington, DC 20036 Joseph P. Knotts, Jr., Esq.

David M. Souders, Esq.

Winston & Strawn 1400 L Street, N.W.

Washington, DC 20005-3502 1

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Ann P. Hodgdon C

Counsel for NRC Staff I

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