ML19256B017

Motion by Tx Public Interest Research Group for ASLB Certification of Questions to Aslab.Asserts That Certification Will Prevent Future Delays;No Party Will Be Harmed by Granting of Request.Certificate of Svc Encl

ML19256B017
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	12/22/1978
From:	Jeffrey Scott TEXAS PUBLIC INTEREST RESEARCH GROUP
To:
References
NUDOCS 7901170400
Download: ML19256B017 (5)

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NUCLEAR REGULATORY C0iD11SSION 2 (D \

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w Before the Atomic Safety'and Licensing Board 4

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IIOUSTON LIGHTING AND PO'JER COMPANY l Docket No. 50-466 1

(Allens Creek Nuclear Generating 1 Station) 1 TEX PIRG'S MOTION FOR CERTIFICATION OF QUESTIONS TO Tile APPEAL BOARD The Texas Pt.olic 'nt.erest Research Group (TexPIRG), a Petitioner for Leave To Intervene in the above-styled .aatter, herein requests that the Licensing Board certify three questions to the Atomic Licensing Appeal Board.

I.

STATDIENT OF FACTS IN PROCEEDING On Dec. 28,_ 1973, the Nuclear Regulatory Commission filed a notice of intervention procedures for dockets 50-466 and 50-467 by publication in the Federal Register (33 FR 35521), and provided 30 days, until Jan.

28, 1974, for petitions seeking intervention to be filed. The Texas Attorney-General filed a timely petition and was admitted as a party on Jan. 27, 1975. On Mar. 11, 1975, the State of Texas withdrew all of its contentions in the proceeding.

On Mar. 11 ,12, 1975, the Licensing Board conducted hearings as to some environmental and site suitability matters. This hearing occurred prior

• to the release of a Staf f Safety Evaluation Supplement and the report of the Advisory Committee on Reactor Safeguards.

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The March hearings did not consider the safety aspects of the A11enn Creek plant. design, except as they pertained to site suitability.*/

On Sept. 26, 1975, the Appilcant gave notice of an indefinite deferral on the construction of Allens Creek Units 1 & 2. And on Nov. 11, 1975, the hicensing Board entered a partial inittal decision.

On Dec. 9, 1975, the Appeal Board reviewed the determinations and filed a itemorandum and Order which stated that " findings already made will be subject to revision" If circumstances or new information so warrant.

On Aug. 19, 1977, the Applicant gave notice of intent to resume licensin>; of one of the two units with an amended Preliminary Safety Analysis Report. And on riny 31, 1978, a Notice of Intervention Procedures was published in the Federal Register (43 FR 23666), which TexPIRC and several other petitioners responded to in a timely manner.

On Aug. 14, 1978 the Board enlarged the scope of cor.tentions by ordering contentions to be bound by "new information" not available prior to Dec. 9, 1975, as well as " changes in plant design," the restriction contained in the May 31, 1978 Notice. On Aug. 29, 1978, in compliance with the hicensing Boar'd's Order, TexPIRG filed contentions.

On Sept. 11, 1978, the Board published a Corrected Notice of Intervention Procedures in the Federa! Fegister, noticing the changes made by the Aug. 14 Order. On Oct. 24, 1978, the Board ordered contentions from respondents to

~*/ liv i dence to the " partial" subject matter of the hearing sas provided by Chairman Confal's expectation of a second hearing. " Chair. Confal: What

(' u it look like on the ' health and safety'? Chen are we going to get down he. on that?",(Tr. at 333).

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the Sept. 11 and May 31 Notices to be filed by Nov. 2, 1978. TexPIRG filed additional contentions on Nov. 1, 1978.

On Oct. 27, 1978, TexPIRG filed a Motion for Modification of the Licensing Board's Oct. 14, 1978 and Sept. 1, 1978 Orders, Re: Limitation on Contentions.

On Nov. 30, 1978, the Board denied TexPIRG's motion. And on Dec. 7, 1978, TexPIRG filed exceptions to the Board's ruling for the purpose of preserving objections for appeal.

II.

QUESTIONS TexPIRG proposes that the Paard transmit the following questions to the Appeal Board for certification. All three questions are related to the Petitioner's Motion of Oct. 27, 1978. The questions are:

1.) May any contentions proffered by new parties, responding to a federal register notice of intervention procedures in a construct' permit proceeding subsequent to a partial initial decision in which no intervenors litigated contentions,be denied admission because the contentions do not arise from evidence not available at the tlne of the Appeal Board review of the partial initial decision?

2.) If so, may the Board require the existence of new evidence for those contentions of fered in response to the notice of the second hearing and concerned with matters or issues not determined or considered in the partial initial decision?

3.) And if either previous question is answered affirmatively, s' mld the Licensing Board establish (a.) the date of a timely intervention pursuant.to the Notice of Intervention Procedures ter the partial initial

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hearing, ot; (b.) the date of the Appeal Board's review of the partial initial decision, as the date of deternining whether information is new

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evidence for the purpose of raising contentions in a construction permit hearing subsequent to a partial initial decision?

III.

CONCLUSION TexPIRC has no desire to be unduly repetitive in arguing its position with regard to these questions. The Board is familiar with TexPIRG's submissions Oct. 27, 1978 (Motion for Modification), Nov. 22, 1978 (Memorandum in Support of Motion for Modification), and Dec. 7, 1978 (Exceptions to Board's Order), all of which present TexPIRG's arguments on the matter of limitations of contentions.

TexPIRG respectfully asserts that certification of this question at this time nay prevent future delay in this process. Without such certi-fication, TexPIFG may be in a position, if the Board issues a construction permit to Applicant in a manner adverse to Petitioner, of appealing this question at that time. If the Appeal Board were at that time to make a finding on contentions consistent with TexPIRG's interpretations, then substantial repetition of the proceedings may occur.

It does not appear that certification will delay tiie proceedings, since the Board could, if it desired, make ft:. dings on the admissibility of contentions prior to the outcone of the Appeal Board's decision. TexPIRG, therefore, cannot see hou any party's interest might be harmed by the granting of this request.

Furthermorp, TexPIRG notes, as a matter of fact, that Applicant and Staf f have objected to most of the contentions submitted by petitioners

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on the basis of a lack of sufficient new information. Therefore, these questions are important insofar as they relate to the basic rights of

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individuals and groups to participate as intervenors here and raise legitimate issues here.

TexpIRG thus respectfully prays that the Board certify the above-stated questions to the Atomic Safety and Licensing Appeal Board.

Respectfully submitted, Dated in County of.11arris, James Scott, Jr.

Texas on the 22nd day of Attorney for TexPIRG December, 1978. Box 237 UC, Univ. of Ilouston llouston, Tx 77004 I

I CERTIFICATE OF SERVICE 1 James Scott herein certify that the following have been served with this inst rument by deposit in the U.S. Mail on this the 22nd day of December, 1978; Sheldon J. Wolfe, Esq.

Dr. E. Leonard Cheatum Mr. Glenn Bright J. Gregory Copeland, Esq.

Jack Newman, Esq.

Richard Lowerre, Esq.

ASLAB Steve Schinki, Esq.

Docketing and Service Section

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