ML20058A456
| ML20058A456 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 02/05/1981 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, TASK-AII, TASK-SE SECY-81-090, SECY-81-90, NUDOCS 8110280617 | |
| Download: ML20058A456 (11) | |
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ADJUDICATORY ISSUE (Information)
The Commission For:
i James A.
Fitzgerald From:
Assistant General Counsel REVIEW OF ALAB-625 (MATTER OF HOUSTON
Subject:
LIGHTING AND POWER CO., ET AL.)
Allens Creek Nuclear Generating Station l
Facility:
i To inform the Commission of an Appeal
Purpose:
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Board decisionf in Ey, (,
our view, Review Time Exoires:
February 17, 1981 i
Mr. John Doherty, an inteivenor in the Discussion:
Allens Creek proceeding, sought a copy t
of the transcript of a December 2 pre-hearing conference under the NRC's procedural assistence program.
Acting i
on a December 3 Comptroller General j
opinion that the program was unlawful,
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Contact:
Mark E. Chopko, GC X-43224 i
la';Tm2!!)n in tYs record r:3 M 'gj in :::.:drn 7;;": 1:n F::c:3m c hkr. % :a
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Act, ex:mpticcs 8110280617 930412 para. --'g-Jj'-
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Chairman Ahearne directed an immediate l
halt to the program pending ' further direction.
On' December 9, the Licensing l
~ Board, implementing the Chairman 's
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memorandum, ordered the -assistance program terminated until further notice.
Dissatisfied with that result, Mr. Doherty appealed the Licensing Board 's implementation of the termina-tion of the procedural assistance-transcript program.
(Attachment 1).
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The Appeal Board in ALAB-625 dismissed the appeal,as_ interlocutory.
(Attach-ment 2). I CE S The Appeal Board notes that' Mr. Doherty-is free to press his claim ~ for a tran-script elsewhere, such as before the Commission.
Accordingly, the. Board did not comment on Doherty 's merits ' argument "that the Commission remained obligated to furnish him with a transcript of the December 2 prehearing conference even i
af ter the Comptroller General 'had authoritatively. ruled that such a step.
would involve the unlawful expenditure of appropriated funds."
ALAB-6 25, _. sl ip 4-5. fTe think l
op. at j
P In these circum-stances, we recommend y
Recommendation:
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yhmes A. Fitdgerald j
, f Assistant General Counsel Attachments:
1.
Doherty Appeal 2.
ALAB-6 25 i
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JCE': ?. DOEERTY, IliTER7E !OR ?RC-3E'S APPIAL TO CBTAIN TRANS";RI?T
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07 JI 1243ER 2,1980 FE-EEARI:G CO:!?IRI::CE ?RIZ O? OEARGE This Apoeal it for the right of this Intervenor to receive gratis, a sinil,e copy of the ;RC's transcript of a Fre-hearing Conference in this Construction Fernit proceeding held on Decem-l ber 2, 1980, in Houston, Texas. Below, this Intervenor will show that he (and other intervenors) were deprived of the right to receive a copy of the aforesaid document through retro-active application of a later Oce=ission decision and harned by said ~
deprivation.
i The facts are straightforward.
On July 25, 1980, the Com-nission's regulations, in particular 10 C.F.R. Part 2 were anended (c: Fed. Reg. 49,535, enclosed), "...to provide a one-year pilot 7rogran of procedural assist;nce...to - arties other than applicant
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...bv (aneng others) (a) upon a carty's rec;uest oroviding one transcri7t to that carty." and incorrorated in' 90 ",.F.R. 2.750 (45 7ed. Reg. 49,537. 3ased on thin pilot pro ran a free transcript l
was trovided this Intervenor of the August 13, "980 Fre-Hearing Conference of this proceedinE.
In its Crder of July 31, 1980, the ASL3 for this proceedin5 granted (Page 3) the risht to the procedureal assistance provided in 'O C.F.R. 2 750 to this Intervencr. The right was noted provided to several other parties in this proceeding in the Board Crder of August 21, 1980 (Page 1).
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Cn December A,
'980, Concissioref Aherene directed cessation of the procedural assist 2nce with no 'pricr warning to t',is Inter-vanor. This Intervenor attended the Yre-hearing conference 2xpecting i
to receive a gratis copy of the transcript and hence made no other record of the event.
On Decenber 10, 1980, by conference call to tezo Inte vening oarties, Staff and Applicant, Mr. 'c.'olfe, the ASL3 Chair, announced there woul: be no transcripts available free to t
the marties unlike the orevious instance, because Docketinsj;,&_,:Ser-
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available under the Iw directive.
The only..:ord of the con-ference call is enclosed.
It is a "Menorandu=", courtesy of Applice.nt's counsel.
The re eval of this party's right to a free transcritt bf the Decenber 2,1980 Fre-hearing Conference by the 2ecenber 4, 1980, Aherne direc:ive was not noted thereupon however.
Fren Dece=ber 10, to Dece=ber 23, 1980, this Intervenor has been heavily involved in law school eraninations.
This Intervenor believes he has been reasonably diligent in his pursuit of this Appeal.
This Intervenor has no record of the pre-hearing conference of any kind because he relied on the right to receive gratis a copy of the transcript.
He relied on being provided the trans-cript but was retro-actively denied his right to it by the actions of the Jharinan of the ASL3 for this proceeding and the Jocketing & Service Branch.
He cannot be said to have lacked forethought as the right was announced a part of a "...one-year pilot pregran" (4 5 Fed. Reg. 49,535) on July 25, 1930.
Certain inportant details ;h:.ch will effect his participation in the environnental phase of the proceeding are unavailable to hin due to the ruling aopealed herein.
de therefore seeks relief from this A peal Board, in the forn of the right to receive gratis a copy of the transcript of the proceedings 6f Decem_ber 2, '980 in the Allens Creek proceedings.
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John f. Doherty Intervenor pre-se CERTIFICATE OF SERVICE Copies of " JOHN F. DOUERTT, INTER"ENOR FRO-3E'S APP 2AL TO CBTAIN TRAJSCRIPI CF DCC&i3ER 2,1980 ??Z-HEARING CO"F RE3CE FREE ?
CEA2GE", were sub-itted to the Parties below via First Class U. 5. Postal Service, this RP of Decenber, 1980 from Houston, Texas i
Ato-ic Safety Licensing & Appeal Soard J. Grecorv Coneland, Iso.
Sheldon.;olfe, Esq., NRC Jack R. Newnan, Esq.
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Gustave A. Linenberger, NEC The Serveral Intervening Dr. E. Leonard Cheatun,.'TRC Parties Richard A. 31ack, Esq., Staff Docketing & Service l
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UNITED STATES OF AMERICA s
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NUCLEAR REGULATORY COMMISSION
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g ;p3 g ATOMIC SAFETY AND LICENSING APPEAL BOARD b'
Administrative Judges:
Alan S. Rosenthal, Chairman kP Dr. John H. Buck EO Christine N. Kohl g'
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In the Matter of
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HOUSTON LIGHTING t POWER COMPANY
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Docket No. 50-466
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(Allens Creek Nuclear Generating
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Station, Unit No. 1)
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Mr. John F. Doherty, Houston, Texas, intervenor, pro se.
MEMORANDUM AND ORDER January 5, 1981 (ALAB-625) 1.
Last July, the Commission established "a one-year pilot program of procedural assistance in adjudicatory pro-ceedings on applications for licenses and amendments thereto, except for antitrust proceedings, to parties other than the 45 Fed. Reg. 49535 (July 25, 1980).
In applicant
- the implernentation of this program, several of the Rules of Practice were amended.
Among other things, a new subsection (c) was added to 10 CPR 2.750, authorizing (except in anti-trust proceedings) the supplying "of one free transcript to a party, other than the applicant, upon recuest by that party".
Id. at 49537.
On December 3, 1980, the Comptroller General of the Unite'd States issued a letter decision (B-200 5 8 5) in which he concluded that certain portions of the procedural assist-ance program, including that embodied in 10 CFR 2.750 (c),
were precluded by Section 502 of the Energy and Water Develop-ment Appropriation Act, 1981, Pub. L. No.96-367, 94 Stat. 1331, 1345.-~1/On the strength of this determination, the following day the Chairman of the Commission sent a memorandum to the Secretary and the Executive Director for Operations in which he ordered an immediate halt to the program to allow the General Counsel and the Commission "an opportunity to examine
[the] decision and reach a conclusion as to what our future action should be".
The Chairman went on to instruct that
"[a] ny documents that are in the process of being transmitted should be held and no further processing should occur without further direction from the Commission".
2.
On December 2, 1980, the Licensing Board had held i
a prehearing conference in this construction permit proceeding involving the proposed Allens Creek nuclear facility.
One of the participants in the conference had been intervenor John F.
Doherty.
Together with other intervenors, Mr. Doherty had
--1/
That Act contains the NRC appropriation for FY 1981.
Section 502 provides that:
None of the funds in this Act shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in this Act.
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previously requested and been granted the procedural assistance j
a authorized by 10 CFR 2.750(c).
On December 9, the Licensing Board entered an order in which it (1) called attention to the Comptroller General's ruling and Chairman Ahearne's directive in response thereto; and (2) rescinded, to the extent covered by the ruling and directive, "any previous orders or issuances which adverted i
to and/or granted procedural assistance to any [i]ntervenors".
On December 10, the parties were orally notified of the sub-stance of that order.
Dissatisfied with the termination of his entitlement to receive a copy of the transcript of the December 2 prehearing conference, Mr. Doherty seeks relief from us by way of " appeal".
It is his apparent view that he has been retroactively deprived i
of the vested right to a free transcript which had been conferred upon him by the adoption of Section 2.750(c) last July.
We are also told that he had relied on that alleged right to his detriment in that he does not now have any record of what t
transpired at the prehearing conference.
l 3.
Because, insofar as here relevant, the Licensing Board's December 9 order was entirely interlocutory in char-acter, Mr. Doherty's appeal from it is barred in terms by the Commission's Rules of Practice.
10 CFR 2.730 (f) ; Public l
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Service Co. of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-370, 5 NRC 131 (1977), and cases there cited.
Although the appellate papers might nonetheless be treated as a petition 2/
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for directed certification under 10 CFR 2.718 (i),
Mr. Doherty would not be aided were we to do so.
The Licensing Board manifestly was bound by the immedi-ately eff ective instruction of the Chairman of the Commission that, pending further Commission directive (and there has been none to date) no additional transcripts of adjudicatory pro-ceedings were to be supplied to parties at public expense.
That instruction likewise must be honored by us, as well as by all other components of the Commission (including the office of the Secretary,which had general responsibility for the administration of the procedural assistance program).
Thus, Mr. Doherty has pressed his grievance in the wrong forum.
In these circumstances, we need not undertake to consider Mr. Doherty's thesis that the Commission remained obligated to furnish him with a transcript of the December 2 prehearing con-ference even after the Comptroller General had authoritatively ruled that such a step would involve the unlawful expenditure
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See Public Service Co. of New Hampshire (Seabrook Station, 2
Units 1 and 2), ALAB-271, 1 NRC 478, 482-83 (1975).
of appropriated funds.
It is worthy of passing note, however, that a copy of that transcript is available for inspection in the local public document room for the Allens Creek facility located in the Sealy Public Library, Sealy, Texas.
That is community, in the neighborhood of the Allens Creek site, approximately 45 miles from the center of Houston, where 3/
Mr. Doherty lives.
While no doubt he would prefer to have his own personal copy which could be consulted at his conven-ience, the f act remains that Mr. Doherty has ready access to the transcript at a rot prohibitive distance from his residence.
U,nless and until the Commission determines that it is both legally permissible and desirable to reinstate the provisions of Section 2.7 50 (c), it appears that he will have to take advantage of that access.
Appeal dismissed.
It is so ORDERED.
FOR THE APPEAL BOARD
~_ x) b=,Ab, Barbara A. Tompkins Secretary to the Appeal Board
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Sealy and Houston are connected by a major interstate 3
highway.