ML19274E434

Requests Directed Certification of Three Questions to Aslab Re Denial of Contentions.Certificate of Svc Encl

ML19274E434
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	02/23/1979
From:	Jeffrey Scott TEXAS PUBLIC INTEREST RESEARCH GROUP
To:
References
NUDOCS 7903260100
Download: ML19274E434 (7)

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'L-UIIITED STATES OF ltMERICA -  ;

IJUCLEAR REGULATORY CGI::IISSIO:, h MAR 1 1973 > i s

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BEFORE THE ATRIIC CAFETY nIII; LICF:!SI:

APPEAL BOARD In the matter of X g

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X il0USTO:! LIO~iTII;G AI.D PC!!ER COI1PAI.Y X I:ocket :o . 50-466 A

(Allena Creek I:uclear Generating Z Station) X T 'X PI Ps.'I' REUEST TO THE APPEAL EOARD FOR DIT.CTEn CTRTI 'ICATT:

TexPIR ;, a arty in the above matter, requccts that tuo ne ,eal icard direct the Licensing Board to certify three lu c cti a r. u to t. n e

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I. BACKGROUI!D

'" ~c. 23,1973, the AEC gave a Federal Regictor (1 5 21) notic: t: at tria nuclear ulanto mirht be cuilt at .4110.i: _

Iarch 11-12,1975, a hearin a ac to environmental ano w_to lit w _ t- -

matterc wac hela in which no intervenora took part.Eofore tne c.vir~'-

ment'l anci site cuitability recora ;ac connle t e , anu beforc am

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nearing wac held, the Aglicant decided to ".ot buil the t!o unit' -t illenc Creek, but otill received a Partial Initial Socicien on :ov.11, 1975 and a review of that decision by the m > e al naard on ;c c . 0,197i,

/,L A B-301, 2 IIRC 853 (1975).

On ::ay 31,1970, notice (43 FR 23666) ac given that the .o Lic ' >

• had reapplied for a modified permit that would allow one inote- o f t-units to be constructed. Tex FIRG arnlied to intervene in a timely . a: ar.

In response to a Tex PIRG complaint that the notice of May 31,1978 ":ar too restrictive ac to what contentionc could be raicea, the Liccncin::

i?oard on Sep_t. f1,1978 publiched a new notico ( 43 FR 510323) which nnrt-ially corrected the error, Because o f increased public urarenecc c"'

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30 other people acked to intervene in a timely conncr. Cn Oct, 24,197 the Licencing Board required the new intervenora to cucmit their contentionc by Nov. 2,1978 and defend them on Hov. 17-18,1978 at a quickly called special nrohearing conference.Decpite many telegramc, letters, and phone calla acking for URC Jtaff help in nreparing the correct technical wording of contentionn anu additional time to trer.are technically correct contentionc, no help nor time tac allowou.n large number of people bravely attempted to defena their contentions, but it wac hopelecc.On Feb. 9,1979, the Licencing Board denied party ctatun to all but 4 people (all attorneyc)becauce their contention:3 eiere not in the correct form. Alco only 9 of over 150 contentionc <!cre allowoc ana ncne of the contentionc that had a chance to ctop conctruction of the plant viere allowed. Moct o f the contentions were rejected becauce it was claimus that thoce contentions coulu have been rair.ed nrior to the Loc. 9,1975 Appeal Board decicion.It it with the a' cove oackground that .'e ack thst the following cucctions be cent to the Arceal Boara from the Licencir; Bo ard.

II. QUESTICL .',

1.) In a proceeding to modify an ar;lication for a conctructior ermit brought three yearc after a partial initial iecicion in *:hich no intervenorc took part, may contentionc be denica co l el;. because cuch contentions in theory could have been raiced by cameone alce if they had become intervenora prior to the Appeal Board' c decicion on the partial initial decision?

2.)Under the above conditionc, may contentions be denica unlocr baced upon information that it would have been incoccible for anyonu to have found prior to the Appeal Board's review o f the Partial Initial Decicion, even though based upon matterc or iccuca not deterri.nea nor considered in the Partial Initial Decision?

2

3.) If the correct answer to both quectionc above i.s yec, then is the correct time to measure the "new evidence" rectriction (a)the lact date to make a timely intervention (Jan. 24,1974) or (b) the date of the Appeal Board' c review of the Partial Initial Decicion ( Dec. 9,1975).

III. ViliY THE APPEAL EO ARD ';EOULD DIP!sCT C::RTIFIC ATIL.

A. Thic Request ic an Ectabliched Procedure.

This procedure of " Directed Certification" as an available procedure was approved in Public Service Company of .:ew Hampchire (Scabrook

.itation, Unita 1 and 2) ALAB-271,1 i:RC 478, 432-83.

E. The Licencing Board hac decided the lucctionc.

Tex PIRG hac protected the Licencing Board' c rectrictionc on contentionc from the beginning. The May 31,1978 notice of Intervention Procedurec (43 FR 23666) rectricted contentionc to thoce related to "changcc in plant decign". Thic error ::ac rartially corrected by the Licencing Board on Sept. 11,1978 when its Corrected Motice of Inter-vention Procedurec also allowed contentionc baced on "new informatio:

not available prior to Dec. 9,1975". Tex FIna met uith HRC staff on Sept. 25 and 26 during which time vie learned for the firct time the Staff' c interpretation of the "new evidence" restrictionc. For examrle it was stated that the fact that many nlante had cince Dec. 9,1975 had broken proccure pipec and that it ' lac an admitted problem wac not sufficient becauce "pipec have been breaking for thoucando of yearc".

I had come to expect the Applicant to make auch ctatencnta , but I am ctill very discuoted to cee my own government,which is cuppoced to be fair and interected in a full public hearing, nake cuch ctatementn.

3.

On Oct. 27,1978, Tex PIRG noved that the Ecard remove their rectriction:,

ao to "nov evidence" becauco they :cre contrary to the doctrines o f rea judicata and collateral ac diccuccod in detail in Alabam, Po':cr Comnrn" (Farley I;uclear Povior Plant) 7 AEC 98 (197h). Here there are different partico, different cubject matter, and no final decicion no there could be no relitigation of iacucc actually decided in criar cuit betvicen the same particc. Toledo Edicon Co.et al, ( Lavic Eccco Station) ALAE-578, 5 URC 557 (1977).

Applicant and ctaff then claimed that "lachec" rectrictou our contentionc. On Ilov. 22,1978 Tex PIRG cent the Licencinc Born a ':e r-randum chorting that lachec did not apply ac inct uc occauce it 1r, un affirmativo defence in vthich the accorting rarty uct chov, incxcurable delay or resulting prejudice. Fed, R, Civ. T). S ( c ) ; Mcolo rv C en ter o f T.n.,

v. Coleman, 515 F2 860,867 (5th Cir.1975). The k olicant caucca - three year delay itcclf. Further clightly lengthening the hearing ra cec ~

is not groundo for lachec. ';houce v. Pierce County, 559 F,1142 (9th Cir, c.

1977).

Cn Ilov. 50,1978, the Licencing Board denied our motion to rcr.a-the atrict "nc': cvidence" requiremento. En Dec. 22,1978 o mane a cotion to Certify the threc above questionc to the ,nneal Bonra. '.n v en. 9, 1979, the Licencing Board denied our I:o tion, lo it 10 very clear that the Licencing board hac had many chancoc to correct itc crror before thic motion vrac mado.

C. Thic ic on Exceptional Circunctance.

Thic is an exceptional circumotance in that the Licencing Eoard'c decicion ic clearly incorrect. affects many people, ic a novel question o f lavt, and prompt correction could cave much time, energy and toney, 4.

The decision of the Licencing Board is in direct conflict eliths the Atomic Encrgy Act. 42 USCA 2239 provideo in portinent part that:

In any proceeding ,,,, for the granting,,,,or amending of any licence or construction permit, . . . , the Commiccion chall grant a hearing upon the requect of m percon whoce interect may be affected by the proceeding, and chall admit any such percon ac a party to cuch proceeding, The wordo of the ctatute and its legislative hictory (1954 U.S. Code Cong, and Ada, I! cwa 3456) clearly chow that Congrecc intcnded that the potentially affected public had a full chance to meaningful nart-icipation in the licencing at the conctruction permit ctage, Brookn

v. /SC,, 476 F2 924 (C. A.D.C.1973) chowa that the public chould be all: 'ec full participation even as to whether the power com.nany had chowed good cauce for extencion of completion datec in conctruction termitc.

In commenting on draft legislation which would have prevented intervenora from raicing iacuca if they could have raiced them earlier, I!,R.C. Commiccioner Peter Bradfora stated,"Furthermore, far frt.

encourcing the early recolution of incuec, thic provicion an draften encouragcc their concealment, for if they eccaped unnoticeu at the first hearing, they cannot come up again in the abcence of cigni ficant information not in exiatence at the time o f the fircL hearing " Concr-occional Record, IIny 24,1978. The above clearly chowa that there ic no requirement to intervono that one be an attorney or that the ':RC uce very restrictive requirements on contentions in order for affected people to become full partiec,Thece rostrictivo "ner evidence" require-ments and the chort time to nrepare " valid" contentionc have cauced about 25 people to be denied their ctatutory right to be heard ao a full party Itany of thece neople are very bitter about their treatment and are calling the hearing prococc a " cham" and caying that their only recource is " direct action",Such treatment and its reaction are not in the public interact nor in accordance with due prococc, 5,

Thece quectionc ana their offect are clearly novel , Therc quectionc have never been before Occided uy the /cgen1 roard or the Conniccion Allena Croch viac only the coconu Project to uco the concept of " Partial Initial Deciclon" and never have the quectiona procented here been ancworod.Any delay in receiving an ancvior to thec" quectionc ..ill cauco unduc prejudice to thoco 25 ::cople d enied interven-.

tion becauce they v;ill loco interect in the J apl i:ro c o c o , c o ', diccourcea, and probably not continue to protect their interect, Even thoce admittoa ac prtico are harmed becauce many of their other?.1.;c cao s contentionc have been denied. If one han to co throuch the lanc diccovery, and hearing procccc before correcting thic crror then cycryone '..ill be harmed by the incroaced delay and coct, It choulu be noticed that l' art 2, Armandir A,V( f)(h) apacifically notec that the richt of percanc to intervene ic a novc3 question appropriato for directed c orti fica t i o n, zoontially the Applicant ic aching to be allor:cd to co tnrou7h t cmall part of a public hearing (no cafet3 incuoc concidcred) ath no intervenoro (the tranccript chovic that there :or no real quectioninc or croco examination), then delay the nlant thrce yearc , then o dif:,

the aIplication dractically(v;hich if a ;crnit had lacued *aula au to:m t ic-ally require a not. r. caring), yet nrevent any concideration o f it :uce even though they are major and have never been conci.dcred in nrior hearincc only becauce in theory someone ccula have raiced the locue before. This ic no t the vray to diccover the " truth", Thic c liccnt ocpecially chould not be heard to claim that a full conci!crati n of the iacuen viould cauce them delay, Thic ic becauce thic applicant, vtithout any intervention, ic tvlo yearc behind cchedule and overrun their projected conctructi.on cocta by 100j, A littic public input alcht have provented tnoce problanc,Thoroforo our requect chould be cran te d. Roopectfully cubmitted, hw d/jdt _

'G amc c Sco tt, J r.

Dated Feb, 23,1979. Attorney for TexPIRG 6.

CERTT FT C Th DF .>r R'/IC :

I , Jamec Scott, certify that copiec of "TexPIRG'c Requect to the Appeal Board for Directed Certification" have been cervea on the following by depocit in the U.S. Mail on or before ). Es)/41@l979.

Jheldon J. llo l f e , Ecq. Carro IIinderatein, .ucq.

Dr. L. Leonard Cheatum Brenda McCorkle, is cq .

Guctave A. Linenberger John R. Chreffler, Alcout Ecl.

J. Grecory Copeland, .s c q .

Jack I'ev: man, t'aq.

Richard Lovierre, IC c q.

AGLAB Steve Cohinki, Esq.

locketing and cervice Coction j . ' vz 71 e W , bN }1, s'<mec F. organ .Jcott, Jr.