ML20148T171

Applicant'S Response to TEX-PIRG's Motion for Mod of the Lic Bd 780814 & 780901 Orders Limitations on Contentions. Urges Motion Be Denied,Since There Should Be Only One Chance to Litigate Any Given Issue

ML20148T171
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	11/13/1978
From:	Newman J LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:
References
NUDOCS 7812040343
Download: ML20148T171 (8)

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NRC PUBLIC DOCUMENT ROOM

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UNITED STATES OF AMERICA @-

NUCLEAR REGULATORY col @lISSION -

' g's N BEFORE THE ATOMIC SAFETY AND LICENSING BOA' %Y g j.$

In the Matter of )  % etR* b'Y .4

) y 8 HOUSTON LIGHTING AND POWER COMPANY ) os Docket No. 50-466 (Allons Creek Nuclear Generating Station, Unit 1) )

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APPLICANT'S RESPONSE TO TEX-PIRG'S MOTION FOR !10DIFICATION OF THE LICEUSING BOARD'S AUGUST 14, 1978 AND SEPTEMBER 1, 1978 ORDERS RE:

LIMITATIONS ON CONTENTIONS I. Introduction On October 27, 1978, Petitioner Texas Public Interest Research Group (TexPirg) filed a motion with the Licensing Board requesting the Board to eliminate " restrictions upon the admissability (sic) 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." Specifically, TexPirg requests that the Board remove the restrictions from its August 14 and September 1, 1978 orders which require contentions "to arise from proposed changes in the plant design and new evidence or information." As ground for the motion, TexPirg claims that the premises of the Board's orders are incorrect "since res judicata and collateral estoppel do not apply to TexPirg."

For the reasons discussed below, the Applicant opposes TexPirg's motion.

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II. The Issuance of An Amended Notice of Hearing Was Not Legally Required _.In This Proceeding '

Proceedings in this case were instituted pursuant to a Notice of-Hearing issued on December 28, 1973 (38 F.R. 35521). '

1 These proceedings resulted in a partial initial decision on certain issues. The Appeal Board, on review of the decision, noted that any aspect thereof_which might be affected by intervening events, e.g. new information, would be subject to re-examination. Houston Lichting & Power Company (Allens Creek Nuclear Generating Station, Units 1 and 2), ALAB-301, 2 NRC 853, 855 (Dec. 1975).

In light of the reactivation of 'he tAllens Creek con-struction permit application by the Applicant, the Board issued an Order on March 23, 1978, in this proceeding requesting the views of the parties on the question of whether an amended notice of hearing was required. Both the Applicant 1!

and-the NRC Staff - / filed responses to the Order, to the effect that an amended notice of hearing was not legally required. Appleiant will not repeat the entire substance of those filings; however, the following brief summary thereof may be helpful. ***/

• / Applicant's Response to the Licensing Board 's Order of March 23, _1978, dated April 14, 1978.

~~**/ NRC Staff's Response to the Licensing Board's Order of March 23, 1978, dated April 10, 1978.

• • • / Applicant hereby incorporates by reference its April 14, 1978 Response to the Board's March 23, 1978 Order.

_.3-Applicant noted'that pursuant to the provisions of S 189a of the Atomic Energy Act and 10 CFR S 2.104 of the Commission's regulations, a notice of hearing was published in the Federal Register in this proceeding on December 28, 1973, which ,

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notice provided for a hearing on all of the issues required ]

1 for the issuance of a construction permit and that such )

i notice satisfied the requirements of both the Atomic Energy i 1

1 Act and the Commission's regulations. ,

l Applicant noted further that the licensing action for Allens 1

Creek.was never terminated by the Aoplicant, but was merely i held in abeyance in 1975 while the project was reassessed.

The licensing process was resumed by the Applicant by letter to tee NRC Staff, dated October 7, 1976. Neither the Act l I

nor the Commission's regulations require the issuance of any 1 l

further notica of hearing in these circumstances. 1 l

The NRC Staff also took the position that there was no legal requirement for an additional notice of hearing. The Staff j further stated that it believed that with respe:t to changed )

circumstances, "neither the project's nearly two year deferral nor iss reduction in size from two units to one effects any changes in the project significant enough, from either environ-mental or safety standpoint;, to require renoticing of the Allens Creek proceeding." Mowever, the Staf# pointed out that should the Board decide to exercise its discretion and issue an amended notice of hearing, such a notice allowing intervention should be limited to those issues "specifically related either to the reduction in the scope of the facility from two units to 1

one, or to the deferral of the dates for the construction and operation of the facility." -

III. The Board Properly Restricted the Filing of Contentions Under the Notice and Corrected Notice of Intervention Procedures TexPirg now argues (some two and a half months af ter the Board's August 14 Memorandum and Order) that the Board should remove the restrictions on the miling of contentions because the doctrines of res judicata and collateral estoppel should not be applied to TexPirg in this case.

TexPirg misconceives the nature of the Commission's licensing process and the purport of the Board's Notice and Corrected Notice of Incarvention Procedures. The Board's action does not reflect application of the doctrines of collateral estoppel or res judicata.

It simply recognizes, as anticipated by the Appeal Board, that events intervening since the date of the partial initial decision might require re-examination of matters determined in that decision. Stated another way, the Board's action anticipated-the possibility of the filing of petitions based on "new infor-mation" or " changes in design"--filings which might otherwise have been treated as untimely and rejected as being unsupported by any showing of " good cause."

l The Commission's original notice of hearing published on December 28, 1973 in this proceeding provided the opportunity for all persons whose interest might be affected by the con-struction and operation of the proposed plant to file petitions to intervene and to raise issues with respect to both environmental and health and safety aspects of the plant.

TexPirg, as well as other members of the public, had the opportunity, within the time frame specified in the Notice, to file such petitions.

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4 I In essence,' exPirg now argues that it should be allowed to relitigate issues which were or could have been raised and j 1

litigated in response to the or.ginal notice of hearing.

t Tex-Pirg (and other petitioners in this proceeding) are not precluded from advancing contentions unrelated to design changes or to new evidence or new information by application of the doctrines of l res judicata or collateral estoppel, but rather because they sat on the rights accorded them by the original notice of hearing and the commission's regulations. j i

It is neither a legal requirement under the Atomic Energy Act or the Commission's regulations, nor sound administrative practice to gravide more than one opportunity to litigate any l l

given issue. The motion should be denied.

Respectfully submitted, l November 13, 1978 (f /[. / Lcew Jack R. Newman I Robert H. Culp 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 J. Gregory Copeland Charles G. Thrash, Jr.

3000 One Shell Plaza Houston, Texas 77002 Attorneys for Applicant HOUSTON LIGHTING & POWER COMPANY OF COUNP a:

LOWENF.EIN , NEWMAN , ' REIS ,

AXELRAD & TOLL 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 BAKER & BOTTS

. 3000 One Shell Plaza Houston, Texas 77002 J

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.i UNITED STATES OF At2RICA NUCLEAR REGULATORY CO:CIISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

'In the Matter of )

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HOUSTON LIGHTING & POWER COMPIsNY ) Docket No. 50-466

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(Allens Creek Nuclear Generating )

Station, Unit 1) )

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CERTIFICATE OF SERVICE I hereby cert'"y that copies of Applicant's Response to Tex-Pirg's Motio*.. iur Modification of the Licensing Board's August 14, 1978 and September 1, 1978 Orders Re: Limitations on Contentions, were served on the following by deposit in the United States Mail, postage prepaid, or by hand delivery this 13th day of November 1978:

Sheldon J. Uolfe, Esq., Chairman Richard Lowerre, Esq.

Atomic Safety and Licensing Assistant Attorney General Board Panel' for the State of Texas U.S. Nuclear Regulatory Commission P.O. Box 12548 Washington, D. C. 20555 Capitol Station l Austin, Texas 78711 Dr. E. Leonard Cheatum Route 3, Box 350A Hon. Jerry Sliva, Mayor l Watkinsville, Georgia 30677 City of Wallis, Texas 77485 l Mr. Glenn O. Bright Atomic Safety and Licensing Gregory J. Kainer 1 Board Panel 11118 Wickwood U.S. Nuclear Regulatory Commission Houston, Texas 77024 Washington, D. C. 20555 Chase R. Stephens Atomic Safety and Licensing Docketing and Service Section Appeal Board Office of the Secretary fo the U.S. Nuclear Regulatory Commission Commission ,

U.S. Nuclear Regulatory Commission Washington, D. C. 20555 i Washington, D. C. 20555

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,i R. Gordon Gooch, Esq. Atomic Safety and Licensing, Baker & Botts Board Panel l'701 Pennsylvania Avenue, N.K. U.S. Nuclear Regulatory Washington, D. C. 20006 Commission Washington, D. C. 20555 l Steve Schinki, Esq.

Staff Counsel T. Paul Robbins U.S. Nuclear Regulatory c/o AFSC Commission 600 West 28th Street, #102 l Washington, D. C. 20555 Auston, Texas 78705 l

John F. Doherty Wayne E. Rentfro i Armadillo Coalition of Texas P.O. Box 1335 I 4438 1/2 Lecland Rosenberg, Texas 77471 Houston, Texas 77023 Brenda A. McCorkle 1 James Scott, Jr. 6140 Darnell  !

8302 Albacore Houston, Texas 77074 l Houston, Texas 77074 l Emanuel Bask 1r .

Carro Hinderstein 5711 Warm Springs Road  !

8739 Link Terrace Houston, Texas 77035 Houston, Texas 77025 Steven Gilbert, Esq.

Jean-Claude De Bremaecker 122 Bluebonnet 2128 Addison Sugar Land, Texas 77478 Houston, Texas 77030 Brent Miller Edgar Crane 4811 Tamarisk Lane 13507 Kingsride Bellaire, Texas 77401 Houston, Texas 77079 John V. Anderson 3626 Broadmead ,

Patricia L. Day Houston, Texas 77025 1 2432 Nottingham Houston, Texas 77005 John R. Shreffler 5014 Braeburn Lois H. Anderson Bellaire, Texas 77401 3626 Broadmead Houston, Texas 77025 Robert S. Framson 4822 Waynesboro Drive David flarke Houston, Texas 77035 Solar Dynamics, Ltd.-

3904 Warehouse' Row Madeline Bass Framson Suite C 4822 Waynesboro Drive Austin, Texas '78704 Houston, Texas 77035 l i

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.I Or )

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y Shirley Caldwell Mrs. R. M. Bevis '

14501 Lillja_ 7706 Brykerwoods Houston, Texas 77060 Houston, Texas - 77055 Ann Wharton Kathryn Hooker 1424 Kipling 1424 Kipling "

Houston, Texas 77006 Houston, Texas 77006 Joe Yelderman, M.D. John Renaud, Jr.

Box 303 4110 Yoakum Street Needville, Texas 77461 Apartment 15 Houston, Texas 77006 D. Michael McCaughan 3131 Timmons Ln. Allen D. Clark Apartment 254 5602 Rutherglenn Houston, Texas 77027 Houston, Texas 7709f ,

l Lee Loe D. Marrack 1344 Kipling 420 Mulberry Lane l Houston, Texas 77098 Bellaire, Texas 77401 '

l Alan Vomacka, Esq. George Broze Houston Chapter, National Lawyers 1823-A Marshall Street Guild Houston, Texas 77098 l 4803 Montrose Blvd. '

l Suite 11 Charles Michulka, Esq.

Houston, Texas 77006 P.O. 53cx 882 3 Stafford, Texas 77477 Hon. John. R. Mikeska Austin County Judge P.O. Box 310 Bellville, Texas 77418 Ub hW '

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