ML20148K044

Motion by Tx Pub Interest Res Grp for Mod of ASLB Orders of 780814 & 780901 Re Limitations on Contentions by Petitioners Not Parties to Hearings of 750311 & 750312.Asserts Doctrines of Collateral Estoppel & Res Judicata on Its Behalf

ML20148K044
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	10/27/1978
From:	Jeffrey Scott TEXAS PUBLIC INTEREST RESEARCH GROUP
To:
References
NUDOCS 7811160196
Download: ML20148K044 (4)

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N liNITED STATCS 0F A?i:RICA g g$ s i NUCLEAR REGULATORY Cot"IISSIO!! -

4 hgYfC bi:f0RE ThE AT0!IC SAFl:TY AND LICENSING E0ARD h s@ % $5 6

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In the Matter of )

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110USTON LIGliTING AND PotiER ) Dock. # 50-466 COMPANY )

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(ALLENS CREEK Unit 1) )

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TEX-PIRG'S MOTION FOR MODIFICATION OF Tile LICENSING UOARD'S AUGUST 14, 1978 AND SEPTEMBER 1,1978 ORDERS--RE: LIMITATIONS ON CONTENTIONS The Texas Public Interest Research Group (TexPIRO) respectfully coves this roard to modify its August 14,'1978 and September 1, 1978 Orders so far as they relate to admissable contentions in this proceeding by elininating restrictions upon the admissability of contentions raised by petitioners who were not parties to the hearings of March,11 and 12, 1975, the public notice for which required petitions to be filed by January 24, 1974.

TexPIRG files this motion, because the restric tive manner in which the N.R.C. Staff.and Applicant have interpreted requirements of new evidence [ indicated by the Applicant's Sept. 28, 1978 " Response" and N.R.C. Staff's'" Response" of Sep*.. 29, 1978] such that contentions TexPIRG believes to he admissable under the above-mentioned orders have been cited as objectionable.*[ Regardless, TexPIRG had informed the Staff

• / e. g. , A t p. 4 of N.R.C. Staff response, the Staff objects to NUREG 75/067 isnued Dec. 5,1975 because the bibligraphy of that document list references available prior to December,1975 781116014(,

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2 durin o ariter meetings that it believes the premisns.of the

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orders to be incorrect, since res judicata and collateral estoppel do not apply to TexPIRC.

In part icular, TexPIRC hernin seeks correction of the requirement that contentions raised by intervenors must arise "from the proposed changes in the plant design and/or (be] based upon new evidence or in focmation that had not been available prior to the Appeal Board's l

liemorandun and nrder of December 9, 1975." '

The doctrines of res judicata and colla teral estoppel are discussed in ;;rea t deta hl in Alabana Power Company (Farley Nuclear Power Plant) 7 Ar.C 98 (1974) . Pm a ica l.ly, the purpose of the doctrines is to prohibit the relitigation of issues actually litigated in a prior suit between the same parties.

The esnential elementn of res judicata, as set out in Farley, and l

confirmed by numerous t eatises, are: 1) a second action between the sa ne l l

par ties or their privies; 2) involving the same subject matter or substantin'  !

identien1 proceedings; 3) where the judgenent in the first action determined substantially identical controverted issues of fact whJch a party is seek-ing to raise in the second action; and 4) there has been a final adj ud ica tion i on the merits. The elements of collateral estoppel, of course, dif fer only in that the subject natter or proceedings in the second action are not the same as in the f ir s t .

Obviously, res judicata is not applicabic to an administrative proceeding which is not final and enforceabic. Chicago. R.I. 6 P.M. Co. v. Sche nd el ,

27 0 U . S. 611, 7 0 L ed 7 57, 4 6 S C t. 420 Cour ts have even held that res judicata may not he applicahic to administrative proceedings. Pearson v.

Wil lia ms, 202 U.S. 281, 26, S. Ct. 603, 50 L ed 1029.

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An administrative order adjudicating the rights of individuals is binding only on the parties to the particular proceedings, and not to strangers thereto. Columbia Broadcastina, systen v. U.S., 316 U. S. 4 07, 86 L ed 1563, 62 S. Ct. 1194 Sunshine Anthracite Coal Co. v. Adhins___, ,

1 310 U.S. 381, S4 Led 1263, 60 S. Ct. 907. Toledo Ed ison Co. . e t. al.,

(Davis Desse Station) ALAD-378, 5 NRC 557 (1977).

The decision resulting from the !! arch 11-12, 1975 hearing in this case was not a final judgement. The Appeal Board at 855 in reviewing the A.S.L.B. opinion, stated :"our endorsement of what already has been decided below cannot be taken as reficcting a final judgement on the suit-ability of the proposed site, or, indeed, on any other natter which nust be considered before a limited work authorization or a construction pernit can issue," and later re-enphasized "l) the Licensin;; noard has not conpleted its environnental or safety review; and 2) even those findings already unde are subject to later revision should further developnents or new information so warrant." liour, ton Linbting & Power (Allens Creek Units 1 & 2) 2 !!RC 853.

-The only intervenor in the 1975 proceedings, the State Attorney-General, withdrew its contentions prior to that hearing. The doctrines of res judicata and collateral estoppel can, therefore, be applied only to the Applicant and M.R.C. Staf f.

In Farley, the Comuission stated that even when these doctrines are applied, they should be applied with " sensitive regard for any ciupported assertion of changed circumstances or the possible existence of some special public interest factors in the particular case." supra, at 203.

Thus, a further test of applying res judicata here is whether there is a lack of such public interest factors. Certainly, the changind

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conditions :of public . concern and: time. franc of three years . delay all should: point to 'the existence 'of such ; factors. - The decisions of the A.S.L.B.

, are of ten vade on . issues without cencrete answers; therefore, as much.

LinformationLas may be availabic. should be considered-in order to fulfill' ithe ;" careful'and inforraed decision-making process'_' as set forth in Calvert

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C11f f 's' Coordinatin's, Committee v. ' U. S. Atomic ' Energy Commission 449 F. 2d  !

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.1109, ' at -1114-1115 (D.C. Circ. ' 1971), and Environmental De fense Fund v.

U.S. Army Corps- of Ennineers, 470 F. 2d L289, 298 (Gth Cire. l1972)'.- 'The. i very f act 'that both 'the Applicant and' li.R.C. Staf f can cite "large bodies of research" in their- responses indicates that the contentions raised thus far have raised serious scientific and public debate. Further, as  !

1 noted earlier, tho' prior ' hearing lacked the public input of full' intervention

' that nay' be. achieved in this hearing.

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In summary, the foregoing discussion has shown that res ,Judicata and

! collateral estoppel should not be applied to' the petitioners in this pro-ceedings, L and TexPIRG therefore requests that the. Board revoke those sections j of Its August 14 and September 1 orders which require submitted contentions to arise from proposed changes in the plant design and new evidence or -

information.

TexPIRG' moves, for all of the above reasons,that the above-nentioned orders be so modified.

l Renpectfully subnitted, i

. Dated in County of Harris,

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Texas, this 27 th. day of October, - 1978

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J a me s . Sc o t t , J r '. j U Attorney for.TexPIRC t

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