ML20006C494
| ML20006C494 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 02/02/1990 |
| From: | Johari Moore NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#190-9783 CPA, OL, NUDOCS 9002080125 | |
| Download: ML20006C494 (11) | |
Text
-.
T7F3 DOCMETED USHRC UNITED STATES OF AMERICA
'90 FEB -2 P3 :26 NUCLEAR REGULATORY COMMISSION I
BEFORE THE COMMISSION
'(($',I[SI;hM'7 In the Matter of 3
)
)p Docket Nos. 50-445-OL TEXAS UTILITIES ELECTRIC 50-446-OL COMPANY, ET g.
(ComanchePeakSteamElectric
)
Docket No.
50-445 CPA Station. Units 1and2)
)
NRC STAFF'S RESPONSE TO CITIZENS FOR FAIR UTILITY REGULATION'S SECOND REQUEST FOR A STAY h
-c Janice E. Moore Counsel for NRC Staff February 2, 1990 A
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMM15$10N
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In the Matter of TEXAS UTILITIES ELECTRIC Docket Nos. 50-445-OL COMPANY, ET AL.
50-446-OL (ComanchePeakSteamElectric Docket No. 50-445-CPA Station, Units 1and2)
NRC STAFF'S RESPONSE TO CITIZENS FOR FAIR UTILITY REGULATION'S SECOND REQUEST FOR A STAY t
Janice E. Moore Counsel for NRC Staff February 2, 1990 i
.)
February 2, 1990 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIS$10N BEFORE THE COMMISSION in the Matter of TEXAS UTILITIES ELECTRIC Docket Nos. 50-445-OL COMPANY,{TAL.
l 50-446-OL (ComanchePeakSteamElectric
')i Docket No.
50-445-CPA Station, Units 1and2)
NRC STAFF'S RESPONSE TO CITIZENS FOR FAIR UTILITY REGULATIGN'S SECOND RE0 VEST FOR A STAY I.
INTRODUCTION On January 27, 1990, theCitizensforFairUtilityRegulation(CFUR) file a request for a stay of the issuance of the low-power operating license for the Comanche Peak Steam Electric Station until February 9, 1990 "Second Request for Stay Citizens for Fair Utility Regulation" (January 27,1990.) [ Hereinafter,SecondStayRequest).
CFUR's request should be denied on the grounds that the request was filed before the incorrect forum, CFUR has failed to address the factors governing the granting of a stay set forth in 10 C.F.R. 6 2.788(e) of the Commission's regulations, and the facts as set in CFUR's petition when measured against these criteria fail to establish that CFUR is entitled to a stay.
II.
BACKGROUND The Comanche Peak proceedings were dismissed on July 13, 1988.
Texas Utilities Electric Company, et al. (Comanche Peak Steam Electric Station Units 1 and 2), LBP RA-188, 28 NRC 106 (1988).
On August 11, 1988. CFUR filed a petition for late intervention in both the Comanche
2 Peak operating license and construction permit amendment proceedings.
" Request for Hearing and Petition for Leave to Intervene by Citizens for Fair Utility Regulation" (August 11,1988). CFUR subsequently filed two supplements to its petition.
'CFUR's First Supplement to its August 11, 1988 Request for Hearing and Petition for Leave to Intervene" (September 12, 1988); "CFUR's Second Supplement to its August 11, 1988 Request for HearingandPetitionforLeavetoIntervene"(December 16,1988).
On December 21, 1988, the Commission denied CFUR's petition. Texas Utilities Electric Company, et al. (Comanche Peak Steam Electric Station, Units 1and2)CLI-PP-12,28NRC605(1988). The Commission modified its decision on April 20, 1989. Texas Utilities Electric Company, et al. (Comanche Peak Steam Electric Station, Units 1 and 2)
CLI-89-06,29NFC348(1989). However, the modification did not affect the Comission's denial of CFUR's petition.
Id.
CFUR filed petitions for review of both of these Comission decisions with the Court of Appeals for the Fifth Circuit.
Petition for Review, Citizens for Fair Utility Regulation v. NRC (5th Cir.) No. 89-4124 (February 16,1989); Petition for Review, _ Citizens for Fair Utility Regulation v. NRC (5th Cir.) No. 89-4310 (May1,1989).
Oral argument is scheduled on CFUR's petitions for February 5, 1990.
On October 16, 1989 CFUR, believing that issuance of a low-power license for Comanche Peak was iminent, filed a request for a stay of issuance of the license with the Comission.
" Request for Stay Citizens for Fair Utility Regulation" (October 16,1989).
The Comission denied CFUR's request on the ground that the Comission was not the proper forum for the filing of the request. Order (unpublished)(October 19,1989).
In its Order, the Comission referred the allegations made by CFUR in its
3 stay request to the Staff for resolution in accordance with the Commission's procedures for handling allegations.
Id. at 3.
The Commission directed the Staff to address CFUR's allegations prior to the u
issuance of the low-power license.
Id.
The Staff met with CFUR to discuss CFUR's concerns further on December 7, 1989. At that time, the Staff indicated that it would issue a report addressing CFUR's allegations before issuance of the low-power license. Transcript of December 7, 1989, meeting at 191.
CFUR now requests a stay on the ground that the Staff committed to issue its report on January 26, 1990, and did not do so.
Therefore, CFUR alleges, issuance of the license should be stayed until February 9,1990, in order to give CFUR time to receive the report and be able to ute it in its filing of a stay request with the Fifth Circuit. Second Stay Request at 3.
The report was issued on January 30, 1990 and provided to CFUR on that date. As discussed further below, CFUR's stay request is wholly inadequate and should be denied.
III. ARGUMENT A.
CFUR's Request for a Stay Has Been Filed in an Inappropriate Forum As the Commission previously held, the Commission's stay regulations are intended to apply to requests for stays of orders issued by the agency's adjudicatory boards or the Staff while that order or decision is pending before another part of the agency for internal review. Order of October 19 at 1-2.
The circumstances here are no different than those which existed at the time that CFUR requested its first stay. There are no proceedings pending before the Comission. CFUR is before the Fifth Circuit. CFUR's sole reason for wanting a stay of the issuance of the
-4 Iow-power license is so that it can obtain information being released by the Commission to bolster its arguments before that court. As the Comission stated in its Order, "the Comission itself has issued a final order denying CFUR's petition for late intervention. Thus, the Court of Appeals is the appropriate body to detemine whether preliminary relief should be granted in a judicial proceeding to review a Commission order."
Ld., at 2.
B.
A Stay of the issuance of the Low-Power License is Unr.ecessary The Staff's report concerning CFUR's allegations will, as the Staff indicated it would, be issued before issuance of the low-power license.
The Staff stated that it would make every attempt to issue that report within a reasonable time before the issuance of the license, and it has done so. The report was issued on January 30, 1990, and was delivered by the Staff to CFUR in an expedited manner. The Staff does not believe that a low-power license for Comanche Peak will be ready to be issued before February 8, 1990. CFUR will have ample time to receive the Staff's report and make whatever use it deems necessary of the information in that report.
Therefore, a stay is unnecessary, C.
CFUR has Failed to Satisfy The Standards for a Stay The standards which the Commission uses to evaluate stay requests are contained in 10 C.F.R. I 2.788(e) of the Comission's regulations. While these standards apply mainly to stays of adjudicatory decisions which affect the issuance of licenses, we have, nevertheless, used these standards to judge the adequacy of the instant stay request.
. _...... _ In deciding whether a stay should be granted, the Commission should consider: (1) Whether the movant has made a strong showing that it is likely to prevail upon the merits of its appeal; (2) has the movant shown that, without the requested relief, it will be irreparably injured; (3) g would the issuance of a stay substantially hann other parties interested in the proceeding; and, (4) where does the public interest lie, 10 C.F.R.
I2.788(e). The Commission has determined that the most crucial of these four factors is whether the movent has shown irreparable injury.
Metropolitan Edison Company, et al. (Three Mile Island Nuclear Station, Unit 1),CLI-84-17,20NRC801,804(1984); Texas Utilities Generatino Company, et al. (Comanche Peak Steam Electric Station Units 1 and 2),
ALAB 716, 17 NRC 341, 342 n.1 (1983).
If there is no showing of irreparable injury and the other factors do not favor the movant, then an overwhelming showing of a likelihood of success on the merits is required.
See, Florida Power & Light Company (St. Lucie Nuclear Power Plant, Unit No.2),ALAB-404,5NRC1185,1186-1189(1977). The movant has the burden of pertuasion with respect to the stay standards. Alabama Power Company (JosephM.FarleyNuclearPowerPlant, Units 1and2),CL1-81-27,14NRC 795,797(1981); Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 NRC 253, 270 (1978). Since a stay is an extraordinary remedy, a movant who does not follow the procedural steps for filing an adequate stay application is not entitled to have that request granted.
See, Public Service Company-of New Hampshire, et al. (Seabrook Station Units 1 and 2) CLI-77-27, 6 NRC715(1977).
CFUR made no attempt to address any of the factors governing the granting of a stay. Therefore, CFUR has not met its burden and the stay
- - -.. _ _. request should be denied.
In eddition, applying the criteria of 10 C.F.R.
I 2.788(e) to the facts surrounding CFUR's stay request demonstrates that the request should be denied.
CFUR will not suffer any irreparable injury. CFUR's claim is that it needs time to review the Staff's report so that it can go to the Court of Appeals for the Fifth Circuit and ask for a stay of the issuance of the low-power license. Second Stay Request at 3.
There is no indication in the request how CFUR believes the Staff's report will be able to be used in support of its stay request. The lack of a report which a litigant hopes might support its arguments is not irreparable injury.
If CFUR has a good argument for a stay, it has that argument with or without the report.
More importantly, however, the report was issued on January 30, 1990.
The Staff has indicated that it will not be ready to issue the license before February 8, 1990. This date is only one day short of that requested by CFUR. CFUR will have ample time to do what it believes to be necessary even if the license were to issue on February 8.
CFUR cannot make a showing thet the lack of on? extra day would cause it irreparable injury.
Since CFUR did not attempt to and cannot show irreparable injury, CFUR would have to demonstrate an overwhelming likelihood of success on the merits. CFUR has made no= attempt to do so. CFUR has failed to indicate how the Staff's report would be relevant to its petition for review of the Commission's decision denying CFUR's untimely intervention petition. Therefore, it is difficult to see how CFUR could make the requisite overwhelming showing of likelihood of success on the merits.
In light of CFUR's complete lack of any attempt to address these standards,
i
?.
it is unnecessary to spend much time balancing the other factors.
{
Long Island Lighting Company (Shoreham Nuclear Power Station Unit 1),
[
ALAB-810, 21 NRC 1616, 1620 (1985).
The Staff does not argue that it would be harmed by the granting of such a stay. The public interest weighs against the granting of this stay because the stay is unnecessary and a stay, which is an extraordinary remedy, should not be granted lightly.
i In summary, CFUR's application for a stay of issuance of the low-power license for the Comanche Peak facility before this Comission fails to satisfy the standards for granting a stay set forth in 10 C.F.R.
t i2.788(e).
In particular, CFUR has not established how it will suffer any irreparable injury if the stay is not granted or that it is likely to prevail on the merits of its petition before the Court of Appeals.
Based t
on the facts discussed above, a stay of the issuance of the low-power license until February 9,1900, is unwarranted.
IV.
CONCLUSION l
t For the reasons set forth above, CFUR's request for a stay should be denied.
Respectfully submitted.
& cug@LQ_ A@D3h Janice E. Moore Counsel for NRC Staff Dated at Rockville, Maryland this 2nd day of February, 1990.
?
l 1-UNITED STATES OF AMERICA
?
NUCLFAR REGULATORY CUMMISSION BEFORE THE COMMISSION j
In the Matter of l
TEXAS UTILITIES ELECTRIC Docket Nos. 50-445-OL l
COMPANY, ET g.
50-446-OL j
i (Comanche Peak Steam Electric Docket No. 50-445-CPA i
Station, Units 1and2) i CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO CITIZENS FOR FAIR UTILITY REGULATION'S SECOND REQUEST FOR A STAY" in the above-captioned proceeding have been served on the following by deposit in the United States I
mail, first class, or as indicated by an asterisk through deposit in the Nuclear l
Regulatory Commission's internal mail system, or as indicated by a double l
asterisk by deposit in overnight mail, or as indicated by three asterisks by hand delivery, this 2nd day of February,1990.
l Merlin Samples, Esq.
Mrs. Juanita Ellis Worsham, Forsythe, Samples President CASE
& Wooldridge 1426 South Polk Street 2001 Bryan Tower, Suite 3200 Dallas, TX 75224 Dallas, TX 75201 Billie Pirner Garde Jack R. Newman, Esq. ***
GAP - Midwest Office Newman & Holtzinger, P.C.
104 E. Wisconsin Avenue - B 1R5 L Street, N.W.
Appleton, WI 54911-4897 Washington, D.C. 20036 William L. Brown Esq.*
Richard L. Griffin **
U.S. Nuclear Regulatory Commission Attorney and Counselor at Law l
611 Ryan Plaza Drive, Suite 1000 600 North Main Arlington, TX 76011 Fort Worth, TX 76106 i
Susan M. Theisen, Esq.
Asst. Director for Inspec. Programs Assistant Attorney General Comanche Peak Project Division Environmental Protection Division U.S. Nuclear Regulatory Commission 1
P.O. Box 12548, Capital Station P.O. Box 1029 Austin, TX 78711-1548 Granbury, TX 76048 4
~
f I
Mr. W. G. Counsil Anthony Z. Roisman, Esq.
Executive Vice President Suite 600 Texas Utilities 1401 New York Avenue, N.W.
Generating Company Washington, DC 20005 Olive Street, L.B. 81 Dallas, TX 75201 Robert D. Martin
- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission Panel (1) 611 Ryan Plaza Drive Suite 1000 U.S. Nuclear Regulatory Comission Arlington, TX 76011 Washington, D.C. 20555 Office of the Secretary ***
Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Comission Panel (5)
Washington, D.C. 20555 U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Robert M. Fillmore Adjudicatory File
- Worsham, Forsythe, Samples Atomic Safety and Licensing Board
& Wooldridge Panel 2001 Bryan Tower Suite 3200 U.S. Nuclear Regulatory Comission i
l Washington, DC 20555 Washington, D.C. 20555 l
d D l.l b b b
Janice E. Moore Counsel for NRC Staff l
.