ML19241A848

Tx Pirg Motion for Reconsideration & Clarification,Response to Util 790412 Motion for Reconsideration,Response to NRC 790418 Motion for Clarification & Memo on Due Process Notice,Re ALAB-535

ML19241A848
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	04/28/1979
From:	Jeffrey Scott PUBLIC INTEREST RESEARCH GROUP
To:
Shared Package
ML19241A843	List: ML19241A842 ML19241A848
References
NUDOCS 7907090459
Download: ML19241A848 (6)

Text

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O- UNITED STATES OF AMERICA g~ ig0- '

NUCLEAR REGULATORI COMMISSICN w

b EEFbRE THE ATOMIC SAFhin AND LICENSING APPEAL BOdRD fk In the Matter. of X _

HOUSTON LIGHTING & FOWER CO. - f L Docket No. 50-466 -

'( A11cus Creek,' Unit 1)

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l-3sk 5. TEI PIRG'h. MOTION R)R RECONSIDERATION OF ALAB 535; MOTION .:

_ E . FOR CT.ARTIICATION OF ALAB-535; RESPONSE TO APPLICANT' S MOTION 3 .[ Id. FOR RECONSII)ERATION~ OF AT. AR-535; RESPONSE TO NRC STAFF' S ..

.f,Y i',+. < MOTION.~ EDR: CLARIFICATION OF ALAS-535; MEMORANDUM ON DUE PROCESS '~

c.tf 37 - ' ' -

NOTICE BRIEF BACKGROUND .

In Dec. 1973-a FR nc L4 ce was published. On March 11 and 12, 1975 a "public hearing" was held in which none of the public was a

. party. The transcripts of that meeting show that there was no real cross ernt 4 nation nor atte=pt to closely eranine the applicant nor the NRC staff to deternine the detailed facts necessary to see if the requirenents of NEPE and the Atonic Energy Act were =ct.There are

=any recent events that indicate that otber plants =ay have been ,

built without the claimed " thorough review". Five plants were built with the same defective computer progra= used to design for earth-quake protection. Even WASH-11+00 had =any errors that were quickly de.tected when others looked at it. Now the NRC Staff says that all of the B & W plants were defective. The "NuggetFile" shows that the.

public ras not info: :ed o f n the proble=s o f nuclear saf ety.This failure to keep the public fully informed is probably the worst thing that the nuclear indust y has done to cause opposition to nuclear power.

Even if it could be made " safe", the pu'elic will never believe it now.

3- In 1975 the Applicant announced that it was not going to build the Allens Creek plents. Newspapers carried the stc_J. In May c f 1978, af ter a three year delay caused by.the Applicant, a defective FR notice 1' 4 ted contentions to " changes in the plant design". After Ten PIRG.

compli 4 ned that -n= the notice -was defective,

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the Ecard properly published

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- a nenG notice;. but-it was_stillach too-restrictive.IIt would have.

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- ' prevented discussion' o f mo5t'~saf ety issues even though ~they had never been discussed in public.The Ecard see=ed fu-thei intent cn preventing ~

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public pa.Wicipation by allohing very little tine to prepa e " valid $

contentions". The prior Ecard Chairman had required that the hRC Stiff assist intervenors by =eeting 7:ith -them and allor_nC- then sufficienti -

ti=e te study the enviro - art'l The tresent Chairnan

] adQ-afety reports.7 90709 0 g 7 g

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G.f f >. . prevented this from bring carried out, As a consequence, most people, even attorneys, . doctors, iand college pro fessors,were unable to ' become parties because they did not know how to prepare " valid" contentions.

The point is that not only was the FR notice defective , but. the. whole failure of the' process to infern the interested public is a denial of Constitutional Due Process as will be shown later. Most of the affected . .

public never Sot any notice (who reads the FR).Of those that did; most

- would have not attempted .to intervene because of the huge . burden to ~

meet thelunduly tough restrictions.IeOf tho se that atte=pted, nost did

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appeal .be.canse by) the..ir.. prior treatment they felt that.rit was hopeles

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~. since clearly l tlie "URC do.es not want pu';lic input". In fact .Ter PIRG

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was told.'not to . appeal the "new evidence" notion because "it would be 1

a waste of time".

Cn April 4,1979 the Appeal Ecard reversed anc. remanded tc, the ASLF '( ALAE-535) th.eir decision to require "new evidence" and

" change in plant design" contentions. The Appeal Board limited their decision to the questions before it, but remanded for further action.

No doi.bt the Appeal Board thought it obvious that defective notice is no ne tice and that the ilower Ecard .would require the publication of the corr ected notice. They no doubt had noticed that the Ecard in Sept.1978 had republished the notice when it found that the first notice was de fective. Yet still the Applicant, 3dard, and to some extent the Staff nill take the "hard line" view that public participation should be limited ir stead of encouraged. It has been adnitted that the Applicant made the conscious decision to obiect to eventhing that any intervenors might raice, apparently in the belief that it would discourage us, bury us in paperwork, and make us "go away". It has had the opposite effect.

Many other people have called Tex PIRG to ask how th ?y could get involvec and some have specifically mated that they ,did not formally intervene

' .because o f how difficult it' was to 2ind contentioils that- would be valid.

The Appeal Ecard order was on April 4,1979. Cn April 1 2,1979, the Eoard issues an Me=orandun and Crder which '"4 ted itself to those that had cn thei' appeal.In Seneral it said they could amend their contentions -ithin' 5ei next ~ 3.0 dafs.] UC %e. Sept.] 1973, they did not

--- issue .a -ner: FR i noticei-On the- saneRay, April 12,1979,- the Applicant - --- - - . .

- asked fcr a reconsideration of ALA3 535. Cn April 15,1979,the sta.ff asked for " clarification" of ALA3-535. The staf f. asks . . . .

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-"hether 10 CFR _

2.7 4(a) should apply'tf all-contentd.ons and if a scw FR notice is .

recnired. Ue.chall new atte=pt to answer t

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c M240p.ANDUM Everyone knows that Due Process requires that one affected by gover". cent _ action be given notice and the opportunity. to be heard.

The courts have defined what the above standard really ceans and the Adminstrative Procedures Act, 5 USCA 554(b), tells us how.it applies

to adminstrative proceedings such as ours. -

5 U3cA 554(b) states: persons entitled to notice'of an .

agency hearing,.shall.be tinely inforned of-(1)the tine, place and nature

, ... 'of the'

.= hearing;(2)the legal authority and jurisdiction under which the hearing is to be held; and(3)the =atters o f fact and laFasserted. -

" 'It is clear that, the prior notices given were defective in fn414"g to tell the affected people within 50 =iles of the plant site both. the nature of the hearing and the matters of fact and la:/ assorted.The prior notices failed to tell people that they could raise contentions without the restrictions of plant changes and after Dec.9,1975 new evidence. Sone and perhaps nany people or roups failed to petition to intervene or i 7.iled to get their contentions accepted because' of this defectiv. notice. Some of these people did not appeal their .

denial, but due process does not require that everyone appeal their ~

decisions against then in order to receive the proper notice. Both the AM nstrative Procedure Act and the Constitution require correct

. notice before action against the person. '

Professor Davis in his Adninstrative Law Thesis at Section S.04 states that it is the fairness of the conplete procedure, not just the v.Titten notice, that decides if due process is net. In our case not only was the written notice defective but the process used af ter that was unfair. For exanple the approxinately 30 people wao petitioned to intervene in response to the Sept. 11,1978 'FR notice were given only, a very few days to prepare their contentions. It was a nea- inpossible task as was proven by the f act that only three contentions by two parties (both attorneys) were accepted as valid fron this cup of people. All these people were effectively denied the -ight to a hearing because the short tine to prepard[ valid

. cententions that._n A ,'i..the NRC. regulations- guaranteeddhat they --

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.ould not be even able to take part in the hearings. There is not" g fM - about that process, therefore Professor Davis :enld, req-d e a corrected notice be published. , -Y -

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t There have beent many court cases that related to whether the notice was sufficient, but most of them say about the same thing so I will mention only the major ones. The~ leading case is probably Gonzales v. U.S. ,343 U.S. 407,99 L Ed 467,75 S ct 609(1954).

In it it was held that due process was not had because the government failed to furnish a man,with a copy o f its recom:nendations made to

~ the appeal board in. the Selective. Service Systen. The same day the Court held that due urocess was denied to a man because the FBI did not furnish his with}a. copy'of its investigative report. and so deprived

[~ . him'of a ' fair hearing.Gi= mons vu U.S. ,3h8 U.S. 397. The above cases relie d on Ma rcan v. U . S , ,304 U. S. 1,18 which held that due process required that one get a reasonable opportunity to know the clai=s of the opposing party and to meet them which meant that they were entitled to be fairly advised of.the government proposal and to be heard upon that proposal before the government issued its finC com=and.

Three Federal Appeals Court decisions exclain the above cases somewhat = ore. In IIcss & Clark v. FDA,49f l750 974) it was held that notice requires suecific nature of facts an:d evidence on T&ich agency proposes to take action so .that an informed response which places all relevant data before the agency can be made.In Golden Grnh IIacaroni v. ??C ,472 F2 882 cert denied 412 U.S. 915(1972) it was held that notice requires that one be informed as to the matters of lau and fact such that the party understand the issues and be afforded full opportunity to a hearing,In Brotherhood o f R.R. Trad - en v.'

Swan, 214 F 56(1934)it was held that one gets a reasonable opportunity 2

to learn the claims of opposing parties and to meet them.

Several state courts have addressed the sufficiency of notice problem. Some state that the notice erst be suecific.252 SYi 990,o94; 269 ITIS 116. Others say the nature of the proceedings cust be known, 33 A g 175,176; 70 Im 2 267,272. Still others~ say that one'must be arised of that is coinc on,59 P2 41,43; 236 ITIS 89,93. PM'y one states that due process tecns opportunity to be uresent at a hca e, to know the natu- c and' contents of'all evidence and to present any relevant contentions and- evidence that party may have. In Re Amalcarated Foo d '

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' Handlers, Local 65N_^70 IG2 267,272. T

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T.n su= mary it is clear that both the federal Adninstrative' ~~

Brcce3 Act and Constitutional Due process as defined by tcourt decicions require that a corrected Federal Register notice be made. ~

In the most simple IerusI the complete process must be ,f_,a,g. All tho se that may be af f ect'e d b'y the granting or denial of a. construction permit at the Allens Creek site must have access to a notice in the

, Federal Register that tells them the nature o f the hearing and what

.- matters of fact and la7 .will ce. cons 2.dered and decided at .the public

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_ _.ihearing.

[ Forithe notice tod.e

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heasonable it must specifically state - .

the nature _p.. ...a , :. -and contents bf all' evidence and contentions that will be rs,'.

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allowed.*These requirements can not be =et by stating that 'certain, .

issues or contention. can not be raised when in fact they should be allowed. There is no requirement that a personal notice be hand carried to - cach person within 50 miles of the propc sad plant, but it is required that the notice published in the. Federal Register fM -ly and correctly state what the issue is in. the proceeding.In the case where the. notice lets anyone that shows up becone a party then a general description of the issue would suffice. But where , as with -

the IIRC regulations, the contentions raised will deternine whether one .gets to~ be a party, then it is necessary that the notice correctly -

specify the limits upon the contentions. Otherwise. tae. agency by unduly limiting contentions could always discourage intervention and 14-4 t the intervenors to those few that were st"'-born, rd ch, trained in the law and willing to appeal tc the cou-t of last re~ sort.

This proceeding has many people who tried to intervene, and others who never cada the first attempt but would if a correct notice was pub'ished. Both groups will be denied , at least 'for a while, their due process rights if ne correct notice is given.

Although.there should. Le no need for the petitioners to . . . .

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seet the late intervention requirements after a three year delay .

caused by the applicant, most intervenors could meet them.To the extent that the new contentions raised were raised by others they .

cauli be consolidated.. There~is no other ray for thM terest to- _ - -

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- 7 be met since there;is;m state proceedings to.. .-consider the sane issues.: ~

T.sirce foM 6thers nave beTnTallowed tFraide new 'c~ohestioniS.thiE-

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30 days.cf April'12,1979, ~ there would be very-little delay in publisM g the cor-ect noticeqand M'owing everyone a chance to intervene under the sane g cundrnles.Otherrl se later _so=ecne co.uld sue in. District.

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Court to enjoin construction _ because.they were not given correct notice, 31i 065' 5

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Therefofe . Tex. Pirg believes that the AL A t--535 should be af firmed except that it; should specifically direct the lower Board to publish a corrected $1otice in the Federal Register ' _

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Tex PIRG8 s attorney 1:. having a difficul.t time finding rules of practice that apply to the appeal board under the present situai. an, but as a mini =um ne should have 10 days plus 5 days for service. by and' to respond to the NRC staff notion for cla.rification as stated .

- in 2.730(c). That vould' give us until May 3,1979 to respond. If for .,

.'7 lany reason the ippeaI Ecard =akes a new order prior to receiving- -

. . . r f,.t this material, then this =aterial should be considered :.-as

:.~ a Motion '

~. . . ;.. for reconsideration of' that Oider.'Or as an alternative, I ask that the Appeal board considor this material c.c a notion for Directed -

Certification of the question- Uhen a notice has been found to be defective -does a non corrected notice have to be rublished so that others besides those that non their appeals may get a . chance to intervene under the' corrected notice?

Respectfully sub=itted, u?hr> h

' Janes Morgan Jcott, J r,

- h 8302 Albacore.

Houston Texas 77074 -

(713) 7f t-7605-CERTIFICATE OF SERVICE ~~

I sent the above =aTsinais to sne 1.o1J.ow ns by U.S. mni'!

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or hand delivery this 28th day of April,1979:

Atc=ic Safety and Licensing Appeal Board y e- -

Ato=ic Safety and Licensing Board tb Richard Lonerre Ednin J. Reis $5o. c h

Robert E. Culp El- gS711 J. Gregory Copeland John F. Eoherty

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'4 Carro Hinderstcin- -

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Brenda McCorkle '- ~ n g

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Wayne E. Rentfro gg ,

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Dar a Harrach Docketing and Serr'.ce Section -

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