ML19224D381

Citizens Concerned About Nuclear Power Response to Houston Lighting & Power Brief on Appeal from Prehearing Conference Ruling Upon Intervention Petitions.Certificate of Svc Encl

ML19224D381
Person / Time
Site:	South Texas
Issue date:	05/14/1979
From:	Sinkin S Citizens Concerned About Nuclear Power, INC.
To:
Shared Package
ML19224D379	List: ML19224D378 ML19224D381
References
NUDOCS 7907120004
Download: ML19224D381 (20)

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UNITED STATES OF AMERICA n3 NUCLEAR REGULATORY CCMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

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HOUSTON LIGHTING AND POWER ) Docket Nos. 50-498 COMPANY, ET AL. ) 50-499

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(South Texas Project, Units )

1 and 2) )

CITIZENS CONCERNED ABOUT NUCLEAR PCWER'S, APPELLEE'S, RESPONbE TO APPLICANTS' BRIEF ON APPEAL FROM PREHEARING CONFERENCE RULING UPON INTERVENTION PETITIONS r[']

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May 14, 1979 790712000Y

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TABLE OF CONTENTS Page I. INTRODUCTION AND STATEMENT OF FACTS . . . . . . 1 II. ARGUMENT . . . . . . . . . . . . . . . . . . . 3 A. Appellants have not brought foriard for consideration on appeal the timeliness of Appellee's Petition . . . . . . . . . . 4 B. Appellee has standing as a natter of right. 9 III. CONCLUSION . . . . . . . . . . . . . . . . . 14 325 022

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TABLE OF AUTHORITIES Cases Page Bate. v Little Rock, 361U.S.516, 80S.CT.412 4L.ed.2D480 (1960) . . . . . . . . . . . . . . . 13 Cady v. Morton, 527 F.2d786 (1975) . . . . . . . 10 Coalition for Environment v. Volpe, 504 F.2d 156 (1974) . . . . . . . . . . . . . . . . . . . 10 Gibson v. Florida Legislative Investigation Committee, 3720.S.539, 83S.CT.889, 9L. ed.

2d 929 (1963) . . . . . . . . . . . . . . . . . 13 P'ACP v. Alabama, 357U.S.449, 78S.CT.ll63, ed.2Dl488 (1958) . . . . . . . . . . . . . . 13 NAACP v Button, 371U.S.415, 835.CT.328, 9L.

ed.2D405 (1963) . . . . . . . . . . . . . . . . 9, 13 NLRB v. Columbian Enamelinc and Stampinc Company, 306U.S.292, 300, 39S.CT.501,505, 83 L.ed.6GO (1939) . . . . . . . . . . . . . . . . . . . . . 6 San Francisco Tomorrow v. Romney, 472 F.2d10?1 (1973) . . . . . . . . . . . . . . . . . . . . . 10 Sierra Club v. Mason, 351 F. Supp419 (1972) . . 10 Sierra Club v. Morton, 514 F.2d.856 (1975) . . . 10 Administrative Decisions Allied-General Nuclear Services (Barnwell Fuel Receving and Storage Station) , ALAB-328, 3 NRC 420, 422-23 (1976) . . . . . . . . . . . . . . . 10, 11 Consumers Power Comcany (Midland Plant, Units 1 and 2). ALAB-270, 1 NRC 473 (1975) . . . . . . 6 Ducuense Light Comoany (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 244, n.2 (1976) . . . . . . . . . . . . . . . . . . . 11 Florida Power and Light Company (St. Lucie Nuclear Power Plant, Unit 2) ALAB-420, 6 :iRC 8 (1977) . . . . . . . . . . . . . . . . . . . . 3, n'g 7 ), ,[ c]

Gulf States Utilities Company (River Bend Units 1 and 2) , ALAB-183, 7 AEC 222, 223, n.4 (1974) . 10

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Pace Houston Lightina and Power Company (Allens Creek Nuclear Generating Station, Unit 1),

AL AB- 5 3 5 , 9 NRC _ , (April 4, 1979) . . . . 11 Lona Island Lichtina Co. (Shoreham Nuclear Power Station) 831, 832-33 (1973) ALAB-156, 6 AEC . . . . . . . . . . . . . . . . . . . .. . 6, 10 Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant) CLI-75-4, 1 URC 273 (1975) . 3 Public Service Company of Indiana, Inc.

(Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 323, 330 (1976). 11 Public Service Company of Indiana, Inc.

(Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-339, 4 NRC 20 (1976) . . . 3, 8, 10 Public Service Company of New Hampshire, et al (Seabrook Station, Units 1 and 2) , ALAB-2',1, 1 NRC 478 (1975) . . . . . . . . . . . . . .. . 8 Public Service Electric and Gas Company (Salen Nuclear Generating Station, Units 1 and 2),

ALAB-136, 6 AEC 487, 489 ( l' ~) . . . . . . .. . 11 Toledo Edison Company (Davis Bcssie Nuclear Power Station), ALAB 300, 2 NRC 752 (1975) . . 3, 8 Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),

ALAB-421, 6 NRC 25 (1977) . . . . . . . . . .. . 8 Washinaton Public Power Supply System (WPPSS Unit 2) , LBP-79-7, 9 NRC , (1979) . . . 9 NRC Regulations 1, 3, 4, 5, 7, 10 CFR 3 2.7 4 . . . . . . . . . . . . . . . . .

10, 11 10 CFR g 2.718 . . . . . . . . . . . . . . . . 8 10 CFR g 2.730 . . . . . . . . . . . . . . . . . 8 F

_ederal Register 43 Fed. Rec. 33968 (August 2, 1978) . . . . .. . 1

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INTRODUCTION AND STATEMENT OF FACTS Ar Cal is taken by Houston Lighting and Power Company, the City Public Service Board of San Antonio, Texas, central Power and Lighting Company, and the City of Austin, Appellants, hereinafter referred to as Appellants, from a pre-hearing conference order issued on April 3, 1979, wherein Citizens Concerned abou:, Nuclear Power (CCANP), here-inafter referred to as Appellee, was granted intervenor status.

The record reflects that on August 2, 1978, the Nuclear Regula-tory Commission published notice in the Federal Register of the op-portunity for a hearing and providing for an opportunity to file re-quests for leave to intervene at the licensing hearing fa- the South Texas Nuclear Project (43 Fed. Reg. 33968).

The filing deadline for petitions was September 1, 1978. Ap-pellee filed their petition with the Nuclear Regulatory Commission on August 31, 1978.(Order,2). On October 23, 1978, the Atomic Safety and Licensing Board issued a memorandum and arder regarding petitions for intervention providing that Appellee, pursuant to Rule 10 CFR Section 2.714 (a) (3) and Section 2.714 (b) could amend its original petition.

By order issued on November 17, 1978, the Atomic Safety and Li-censing Board established January ll, 1978, as the pre-hearing con-ference date on intervention, thereby making December 26, 19 'iB , the deadline for filing an amended petition. Appellee timely filed its amended petition on December 25, 1978 (Order, 3: Tr. 71).

The presiding officer of the Atomic Safety and Licensing Board specifically recognized this amended petition as - ;1 rely supersed-ing the original petition that the amended petition would 'c e the eC

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only petition that Appellee would be working with (Tr, 71). Ap-pellants did not take exception to the acccptanc of this amended petition.

The r ecord is uncontroverted that LCANP is a non-profit cer poration " interested in providing education and influencing pc v regarding issues surrcunding the use of nuclear power" (Amended pe-tition filed December 25, 1973). CCANP is specifically interested in the South Texas Nuclear Project (Tr. 72).

CCANP is compris?d of members from at least Bexar and Matagorda Counties. Its membership is in excess of 120 individuals and it has specifically chosen not to identify all of its members for purposes of this proceeding (Tr. 75). CCANP was approached by citizens of Matagorda County who live within 25 miles of the South Texas Nuclear Project and at least four (4) of these citizet.3 s,necifically asked CCANP to represent their interest (Tr. 72, 72, 75).

At the hearing held on January ll, 1979, the Licens tr;; Board asked Appellee to file a statement from at least one person ttum Matagorda County authorizing Appellee to represent his/her inter-ests (Tr. 75). The Licensing Board also requested that Appellee file a statement that the person who appeared at the hearing and signed the amended petition had the authority to do so.

Appellec filed an authorization signed by its two coordinators on January 19, 1979. On January 14, 1979, Mr. Bunk filed a letter with the Licensing Board.Mr. Bunk's letter specifically stated "My home and property are within seven (7) miles of the South Texas Nu-clear Project. I am a member of Citizens Concerned about Nuclear Power (CCANP). I desire that CCAMP represent my interest in the proceedings .... I adopt and support the statem_ats of interest

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and contentions delineated in CCANP's amended petition dated 12/25/78."

The Licensing Board decided that Appellee "has a real stake" in the licensing proceeding and has demonstrated standing of right to participate (Order, 19).

It further found that Appellee had two contentions that were ad-missible.

ARGUMENT 10 CFR 2.714a (c) states in relevant part that "an order grant-ing a petition for leave to intervene ... is appealable ... on the question whetherthe petition ... should have been wholly denied."

It is a well e 'ablished rule that the standard for review on

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appeal of a licensing board's order that either crants or denies in-tervention is whether or not the board abused 11 discretion. Public Service __ Company of Indiana, Inc. (Marble Hill Nuclcar Generating Sta-tion, Units 1 and 2) ALAB 339 4 NRC 20 (1976); Florida Power and Light Company (St. Lucie Nuclear Power Plant, Unit 2) , ALAB 420, 6 NRC 8, 13 (1977); Nuclear Fuel Services, Inc. (West Valley Repro -

cessing Plant) CLI-75-4, 1 NRC 273 (1975).

The Appellants have the affirmative burden to show this Appel-late Board the specific basis upon which the Licensing Board abused its discretion and must limit its allegations of abuse of discretion to the specific elements set out in 10 CFR 2.714. All other errors urged are outside the scope of review at this time. Publi- Service Company of Indiana, Inc., suora; Toledo Edision Connany (Davis Bessie

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Nuclear Pcwer Station) ALAB 300 2 NRC 752 (1975).

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I. THE LICENSING BOARD DID NOT ABUSE ITS DISCRETION IN GRANTING INTERVENTION TO APPELLEE.

A. APPELLANTS HAVE NOT BROUGHT FORWARD FOR CONSIDERATION ON APPEAL THE TIMELINESS OF APPELLEE'S PETITION Appellants' brief established as its maj or premise that each or-ganization which filed a petition to intervene was either " expressly found to be or expressly assumed to be untimely" (Brief 5, see 3).

Therefore, "the validity of the grant of each or the petitions to intervene turns ... upon whether the Licensing Board abused its dis-

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cretion in balancing the factors .... for untimely petitions. Ap-pellants' majir premise is erroneous and miscontrues the order en-tered by the Licensing Board on April 3, 1979.

The sole basis for Appellants' major premise is a footnote found on page 19 of the Order wherein the Board states

... assuming (althouch not decidina) both that the CCANP petition must be considered untimely and that there was no good cause for a delay to that date, we balance the relevant factors in 10 CFR Section 2.714 (a) in favor of CCANP's admission. In terms of these factors, the peti-tion would differ from that of CEU, which we are granting (op. 62-63, infra), only in that (1) it was not as late and (2) the contentions differ. (emphasis supplied)

It is clear the Board is responding to an argument set forth by Appellants as to when Mr. Bunk became a memoer of CCANP and assumes hypothetically that CCANP was untimely and could not show good cause.

The Board then goes on to conclude CCANP would hase still qualified for intervention under these hypothetical conditions. The Board made these assumptions only for purposes of this footnote anc specifically did not make these assumptions as part of the decisinn.

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If this footnote be given the full force and effect of an al-ternative holding of the Licensing Board, then it must be read in its entirety to include the holding that "CCANP is likely to assist us in resolving its two contentions which we have admitted" which would be a basis for granting discretionary intervention. When there is more than one alternative theory to uphold the ruling of the Li-censing Board then either theory can serve as a basis for upholding the Licensing Board decision. Appellants da not br: 3f the question of discretionary intervention and their appeal woulu be denied be-cause a valid uncontested basis exists to grant intervention.

A further basis exists for showing that the Appellants miscon-strued the Order. 10 CFR Section 2.714 (a) states in relevant part that Ncn timely filings will not be entertained absent a de-termination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board ... that the peti-tion and/or request should be granted based upon the ba-lancing of the following factors in addition to those sec out in paragraph (6) of this section.

If the Board makes a determination that a petition is 'intimely, then it must specifically consider the five elements specified u. section (a). No consideration of these elements was undertaken by the Board in its decision as it related to Appellee. Therefore, it is an in-escapable conclusion that the Board determined that Appellee timely filed a petition to intervene.

This conclusion is further documented by the Board's Order which recognized that Appellee's original petition was timely filed (Order 2). (It should be noted that Appellants do not contest that Appellee's original petition was timely filed and in fact refer to it as the 'cr-iginal timely filed petition" (Brief, 3)). The Licensing Board found o

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that Appellee had an absolute right to amend their petition on or be-fore December 26, 1978, and that the Appellee timely did so (Order, 3; Tr. 71). Appellants do not contest anywhere in their brief the time-liness of Appellee's amended petition.

Whether or not Appellants misconstrue the Board's Order as to the timeliness of Appellee's petition, one conclusion is mandatory.

Since Appellants argue that the Licensing Board assumed that Appellee's petition was untimelv it would be a non seauitur to argue that the Li-censing Board abused its discretion in finding that Appellee's peti-tion was timely. Based on Appellants' own argument it is logically inescapable that Appellants did not bring forward for consideration on appeal whether or not the Licensing Board abused its discretion in finding that Appellee's petition was timelv.

It is axiomatic that that which is not briefed is waived on appeal and must be expressly found in favor of Appellee. Consumers Power Comoany (Midland Plant, Units 1 and 2) ALAB 270 1 NRC 473 (1975);

See Lona Island Lichtinc Company (Shoreham Nuclear Power Station) 831, 832-33 (1973) ALAB-156, 6 AEC.

Even if Appellants had raised on appeal the contention that the Licensing Board abused its discretion in finding the petition timely, this contention would be without merit. The United States Supreme Court has translated the abuse of discretion standard to mean there must only be " substantial evidence in the record to support the de-cision of the Licensing Board. NLRB v. Columbian Enamelina and Stamo-ina comoanv, 306 U.S. 292, 300, 59 S. Ct. 501, 505, 83 L. Ed. 660 (1939). The record is replete with " substantial evidence" which is uncontroverted that Appellee's petition was timely filed.

Appcilee timely filed its original petition (Order, 2). The

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rules of practice provide for an absolute right to file an amended petition prior to fifteen (15) days of the pre-hearing conference.

10 CFR 2.714 (a) (3) and (b).

Appellee filed an amended petition withi. he permissible time frame (Order, 3: Tr. 71). The representatives of Appellee at the bearing on January 11, 1979, specifically asked the Licensing Board to consider its amended petition as a complete substitute for its original petition (Tr. 71). The representative explained to the Li-censing Board that the individual who had prepared the original pe-tition had made several errors, including the ages of members of Ap-pellee and location of members of Appellee (Tr. 71). The Board ac-cepted the amended petition as a substitute for the prior petition (Tr. 71). Appellants did not except to the acceptance of the amended petition. An amended petition supersedes an original petition and relates back to the date of filing of the original petition (See Rule 15 of the Federal Rules of Civil Procedure).

The sworn affidavit of the representative of the Appellee stated the representative had personal knowledge that Appellee had at least four (4) members residing within 15 to 25 miles of the South Texas Nuclear Project, one of whom was Mr. Bunk. No contraverting affida-vits were filed. Uncontroverted affidavits must be taken as true on appeal. Florida Power and Lichtinc Comnanv, supra.

Mr. Bunk's letter which is uncontroverted states that he is a member of Appellee's organi7ation and desires them to represent his interests.

The record also shows the Appellee's organiation was formed in February, 1978, (Tr. 71) and many citizens of Matagorda Coun*/ had approached Appellee's organization to become members (Tr. 71). .

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The record shows that there is substantial evidence to support a finding, if it had been contested, that Appellee timely filed a petition.

The extensive exhortations in Appellants' brief that further in-quiry into Mr. Bunk's status as it relates to his membership in Appel-lee's organization is not reviewable by appeal at this time. Public Service Company of Indiana, Inc., suora; Toledo Edison Company, supra.

On March 14, 1979, Appellants filed a motion for supplemental proceedings pursuant to rule 10 CFR 2.730. The motion specifically requested the Licensing Board to inquire of Mr. Bunk as to the date on which he joined Citizens Concerned about Nuclear Power. This re-

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quest was denied in the Licensing Board's Order (Order p. 67). Ap-pellants did not urge this question be certified to the Commissian, pursuant to 10 CFR 2.718 (i). The Appellants did not rec.ue s t the Appellate Board to certify the question. The Licensing Board in its discretion did not refer this question for review by the Commission, pursuant to 10 CFR 2.730 (f). Thereforethis question is not properly before this Appellate Board for review. See Public Service Comoany of New Hampshire, et al. (Seabrook Station, Units 1 and 2) ALAB 271 1 NRC 478 (1975); Vermont Yankee Nuclear Power Corporation _(Vermont Yankee Nuclear Power Station) ALAB 421 6 NRC 25 (1977).

Further it is clear that the nature of this inquiry would be to obtain discovery. An Appellate Board consisting of Salzman, Buck, and Farrar stated that any limitation on the right to discovery at a pre-hearing on intervention was interlocutory and not appealable, pursuant to 10 CFR 2.714a. Public Service Comnanv of Indiana, Inc.,

suora. The scope of any inquiry as to Mr. Bunk is not reviewable on appeal at this time.} Q}]

Appellants' reliance on Washington Public Power Supply System (WPPSS Unit 2), LBP-79-7, 9 NRC (1979) for the proposition that further questions must be asked of Mr. Bunk is misplaced. This case is disti.nguishable in several significant ways. In that decision, unlike the case at bar, there was uncontroverted and affirmative show-ing that an individual was not a member of an organization at the time the organization's petition was filed. Secondly, to have that case identical to the case at bar, this Appellate Board would have to as-sume evidence not in the record and would have to assume answers to questions proposed of Mr. Bunk, which is not permissible by an Appel-late Board. T'ird, this case does not stand for the proposition that it would be an abuse of discretion to not inquire beyond an amended petition, an affidavit, and a letter to make additional finding about an indi-vidual's relationship with an organization. Fourth, the questior of whether or not the intervenor's petition was timely was directly before the Appellate Court for review which is not true with the case at bar. Fifth, neither party in the aforementioned case was attempting to appeal a denial of development of further facts or discovery, which is precisely what is attempted to be appealed in this case. B. APPELLEE HAS STANDING AS A MATTER OF RIGFT.

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An organization can establish standing through a member or mem-bers of the organization who have interests which may be affected by the outcome of the proceeding. NAACP v Button 371 U.S. 415, 335. CT.

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328 9L.ed.2D405 (1963); cadv v Morton, 527 F.2d 7E6 (1975); Sierra club v Morton, 514 F.2d 856 (1975); coalition for Fnvironment v Volce, 504 F.2d 156 (1974); San Francisco Tomorrow v Romnev, 472 F.2d 1021 (1973); Sierra Club v Mason 351 F.Supp 419 (1974); Public Service comoany of Indiana, supra at 330. Further, in proceedings before the Nuclear Regulatory Commission, it is permissible for an Organization to represent individuals who are not members upon the presentation of proof that these individuals give their express authority for that organization to represent t ' .em . Lanc Island Lichtina Comoanv, suora; Gulf States Utilities Comoanv (River Bend Units 1 and 2), ALAB-183, 7 AEC 222, 223 n.4 (1974); Allied-Gener-al Nuclear Services (Barnwell Fuel Receiving and Storage Station), LBP-75-60, 2 Nrc 637, 690 (1975). When an organization claims that its standing is based on the in-terests of its members, 10 CFR Section 2.714 provides that the organi-zation must identify specific individual members whose interest might be affected by the proposed action, describe how the interest of each of those members might be affected and show that each of those members has authorized the organization to act on his/her behalf. Appellee has satisfied this requirement by identifying in a sworn affidavit the names and addresses of four (4) members living within the " geographical zone of interest." (Although not an issue before this Appellate Board, limiting the geographical 7.one of interest to fifty (50) miles might be an unrealistic limitation in light of the plume diagrams for the Three Mile Island accident.) Additionally Appellee provided a statement from Mr. Bunk wherein he adopted the views and contentions of Appellee's petition and speci-fically authorized Appellee to represent him. t 325 034 l

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Appellants urge on appeal a standard for standing that goes beyond the requirements of 10 CFR 2.714 and the prior case law promulgated by the Nuclear Regulatory Commission. Appellants urge that the Licensing Board must additionally consider the individual's

lationship to the organization seeking intervenor status in terms of distance and correspondence of interests, alleging that a nexus must exist between the member and the group in terms of location arS common interest.

There is absolutely no case law supporting this proposition. The Commission's case law on standing is clear, unequivocal, and straightforward. When an organization seeks to estaL ish standing through the interests of its members, it need only identify a mem-ber who has the requisir_ affected personal interest and supply a specific authorization or some other concrete indication that in fact the member wishes to have that inerest represe: ad in the pro-ceeding by the organization. Houston Lichting and Pova '; moany (Allens Creek Nuclear Generating Station, Unit 1), ALAB-335 9 NRC

   ,        (April 4, 1979) (Slip op. pp. 24, 36-38) Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station),

ALAB-328, 3 NRC 420, 422-23 (1976); Public Service Company of In-diana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-322, 3 NRC 328, 330 (1976); Puolic Service Electric and Gas Company (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 489 (1976); Duquesne Light Company (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 244, n.2 (1976). The critical focus is whether or not the individual has given his express authority for the organization to represent his inter-ests. The Appellate Board in Allens Creek, sucra, at 36 stated

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that when a member authorizes the organization to represent his interests, he clothes the organization with his personal standing. Appellants concede that Mr. Bunk is within the zone of interest and would have standing in his own right (Brief, 20). It is clear that the record in this case shows the Licensing Board determina-tion that Appellee had standing as a matter of right is neither ir-rational nor is it an abuse of discretion. The analysis used by Appellants is replete with spurious logic; it calls for standards that are unmanageable and fraught with severe policy implications. Appellants constantly refer to Appellee's original petition. Appel3ees at the hearing informed the Licensing Board that its origi-nal petition contained numerous errors. Appellee filed an amended petition which superseded the original petition in all aspects and which the Licensing Board specifically recognized as so doing. All references by Appellant to Appellee's original petition are of no probative value. Appellants then go forward and attach some significance to the fact Appellee filed an amended petition. ' ling an amended peticion is totally permitted by the rules and can have absolutely no legal significance for purposes of appeal on review of a Licensing Board's decision. Appellants then argue that Appellee mentioned members in only

wo counties. Query

How many counties must you have members in?

Is there any statement by Appellee that it does not have members in other counties? Appellants argue that a " local organization" based in one area cannot be permitted to represent indivicuals in a more distant area. 325 DaC

First of all, Mr. Bunk lives within one hundred and forty miles of San Antonio, Texas is the second largest ctate in the United States. The City of Houston alone is fifty (50) miles across. A hundred and forty miles in Texas can hardly be determined to be remote. The stan-dard as proposed by Appellants is totally unmanageable. What is deemed to be a remote area? Is seventy-five (75) miles too remote? How does one determine what is "a local organization" or a " national organization"? The standard is totally unmanageable. The reason that Appellants can find no case which inquires into the geographic residence of an organization's members is chat such an inquiry would be Constitutionally impermissible. Any limitations imposed on the number of mmebers of an organization and the geogra-phic location of the members of an organization would be an infringe-ment prohibited by the First Amendment guarantee of freedom of asso-ciation. Cibson v Florida Legislative Investigation Ccmmittee, 372 US539,83S.CT.889,9L.ed.2d.929 (1963); NAACP v Button 371CS415,83S. CT.328, 9L. ed.2D405 (1963); Bates v Little Rock 361US516,80S.CT.41 , 4L.ed.2D480 (1960); NAACP v Alabama, 357US449, 78S.CT.ll63, 2L.ed. 2D1488 (1958). In NAACP V Button, suora, the Supreme Court recog-nized that it is permissible for citizens to speak to other citizens to urge them to come forward and express their rights protected by law and to encourage them to join in an organization and let that organization represent them in thatexpression. By analogy it would be permissible for CCANP to go to various areas of the state and en-courage people to challenge the safety and hazards of nuclear ener-gy as is their legal right and to let CCANP be their representa - tive. That was not in fact done in this case. But even if it

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wer .. Tuld be protected by the United States Constitution as a valim F1_st Amendment right of association. Just as the NAACP

  , Const'tutionally permitted to represent a single claim of dis-crimination by a single member of its organization, CCANP can re-present a single claim that the South Texas Nuclear Project repre-sents a threat to the life, health, safety, and property of Mr.

George Bunk, a single .mmber of its organization. The record in this case clearly demonstrates that the Licens-ing Board did not abuse its discretion in granting intervenor's status to Appelice. Further, Appellee has standing because the laws enacted by Congress and the Constitutional guarantees in a democracy compel the participation of its citizens in the protection of their rights. Respectfully submitted,

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Steven A. Sinkin Attorney for Citizens Concerned About Nuclear Power, Appellce May 14, 1979 325 030

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION y epbh [ BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 4 , su In the Matter of )

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HOUSTON LIGHTING AND POWER COMPANY, ) Docket Nos. 50-498 ET AL.

                --                                     )                     50-499
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(South Texas Project, Units 1 and 2 ) CERTIFICATE OF SERVICE I hereby certify that Appellee's Motion to Reconsider and Appellee's Reply Brief in the above captioned proceding have been served on the following by deposit' in the United States Mail on this the 14th day of May, 1979.

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Richard S. Salzman, Chairman Dr. Emmeth A. Luebke Atomic Safety and Licensing Appeal Atomic Safety and Licensing Ebard Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Melbert Schwarz, Jr., Esq. Dr. John H. Buck, Member Baker and Botts Atomic Safety and Licensing Appeal One Shell Plaza Board Houston, TX 77002 U.S. Nuclear Regulatory Commission Washington, DC 20555 Henry J. McGurren, Esq. Hearing Attorney Michael C. Farrar, Esq. Member- office of the Executive Legal Direct Atomic Sai'ety and Licensing Appeal U. S. Nuclear Regulatory Cornission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 nrs. Peggy Buchorn Executive Director Charles Bechhoefer, Esq. , Chaiman Citizens for Equitable Atomic Safety and Licensing Board Utilities, Inc. U.S. Nuclear Regulatory Commission Route 1, Box 432 Washir.gton, DC 20555 Brazoria, TX 77422 Dr. James C. Lamb, III Richard W. Lowerre, Esq. 313 Woodhaven Road Assistant Attorney General Chapel Hill, NC 27514 Environmental Protection Division P.O. Box 12548; Capitol Station Austin, TX 78711 p -O dd'

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AtomicSafetyandiicensingAppeal

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Jack R. Newman, Esq. Lowenstein, Newman, Reis, Panel (5) Areirad & Toll U.S. Nuclear Regulatory Commission 1025 Connecticut Avenue, N.W. Washington, DC 20555 Washington, DC 20036 Docketing and Service Section (4) Atomic Safety and Licensing Board Office of the Secretary Panel U.S. Nuclear Regulatory Commission

     . U.S. Nuclear Regulatory Commission          Washington, DC 20555 Washington, DC 20555
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Steven A. Sinkin Attorney for Citizens Concerned About Nuclear Power, Appellee 325 0,0

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