ML20033B878
| ML20033B878 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/30/1981 |
| From: | Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20033B879 | List: |
| References | |
| NUDOCS 8112020384 | |
| Download: ML20033B878 (5) | |
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s 11/30/81 UNITED STATES OF AMERICA
/4N'M NUCLEAR REGULATORY COMMISSION 9
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD S
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In the Matter of TEXAS UTILITIES GENERATING
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DocketNos.Sh-445 h
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50-446 p 1
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(Comanche Peak Steam Electric Station, Units 1 and 2)
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NRC STAFF'S RESPONSE TO CASE'S MOTION TO ALLOW TESTIMONY TO BE ADMITTED ON AFFIDAVIT ONLY On November 18, 1981, Intervenor Citizens Association for Sound Energy (CASE) filed " CASE's Motion to Allow Testimony To Be Admitted on Affidavit Only" (Motion"). The testimony identified by CASE essentially consists of portions of testimony given by various executives and employees of the Applicants in rate-setting hearings before the Public Utilities Commission (PUC) of Texas.
For the reasons set forth below, the NRC Staff (" Staff") opposes CASE's Motion and recommends that it be denied.
The hearing scheduled to commence on December 2,1981, is to consider, inter alia, the merits of Contention 25.E That contention asserts as follows:
y The Staff notes that it has filed a motion for sumary disposition of Contention 25, which is pending before the Licensing Board.
%O7 See "NRC Staff's Motion for Summary Disposition of Contention 25 (Financial Qualifications)" (" Motion for Summary Disposition"),
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filed on October 28, 1981.
If the Licensing Board grants the
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Staff's motion for summary disposition, as we believe it should, a hearing on Contention 25 would be unnecessary, and CASE's present Motion ould be rendered moot.
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2 Contention 25. The requirements of the Atomic Energy Act, as amended, 10 CFR 950.57(a)(4) and 10 CFR 50 Appendix C have not been met in that the Applicant is not financially qualified to operate the proposed facility.
The standards governing the determination of an applicant's financial qualifications have been set out in the Staff's Motion for Summary Disposition (at 5-10), and need not be recited at length herein. As stated in the Staff's Motion for Summary Disposition, the Commission's decision in Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 18 (1978), establishes that the
" reasonable assurance" requirement set forth in the financial qualifi-cations regulations may be satisfied upon showing that an applicant has "a reasonable financing plan in the light of relevant circumstances."
As further stated in the Staff's Motion for Summary Disposition, the present Applicants' plan to recover operating costs through revenues derived from customers in system-wide sales of electricity constitutes such a " reasonable financing plan in the light of relevant circumstances" (Motion for Summary Disposition, at 11-14).
The testimony which CASE seeks to have admitted herein "on affi-davit" is not relevant or material to the determination of the Applicants' financial qualifications.E A reading of that testimony reflects that, at best, CASE will attempt to establish (a) that the Applicants have been granted only some of the amounts they sought as rate increases J
y The Staff rejects CASE's assertion that rate hearing testimony is
" vitally important and pertinent information," as well as its allega-tion that the Staff's review of Applicants' financial qualifications was inadequate in that it did not include a review of the voluminous records of the Applicants' various rate hearings.
(CASE's Motion, at 2-3).
. before the PUC, and (b) that the Applicants have stated that larger rate increases were needed to protect their financial integrity.
The Staff submits that this type of te. timony is immaterial and is of no significance whatsoever, in view of the fact that the Applicants' historical financial results clearly demonstrate their financial qualifi-cations and the presence of rational regulatory policies established by the PUC of Texas.
Those financial results are the best evidence of the Applicants' financial condition and of their historical ability to recover operating costs through the rate-setting process; those finan-cial results were submitted by the Applicants for the Staff's review, and are a proper subject for cross-examination in this proceeding.
The Staff submits that the testimony referred to by CASE is totally immaterial in view of the " bottom-line" demonstrated by the Applicants' historical financial results; that testimony cannot disprove the clear financial picture which appears from a reading of the Applicants' financial state-ments and summaries.
Secondly, it is important to note that CASE is seeking to introduce as direct evidence the testimony of Applicants' executives and employees
-- persons whose interests are adverse and hostile to those of CASE in this proceeding. CASE is not the proper legal sponsor for such testi-many, nor can it testify as to the correctness of statements made therein; accordingly, CASE is not legally capable of offering such testimony into evidence.E y
In this regard, we note that CASE might wish to refer to this testimony in its questioning upon cross-examination, although questions of relevance and materiality would arise also with respect to such cross-examination.
. Finally, the Staff believes that the introduction into evidence of portions of transcripts from an unrelated adjudicatory proceeding -- as
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CASE is attempting to do here -- inevitably will creata a misleading and imbalanced impression as to the contents of that testimony. Were those transcript portions to be introduced here, other parties to this pro-ceeding would rightfully be able to insist upon the introduction into evidence of the whole testimony of those persons to the extent it is relevant -- as well as related testimony of other persons who may have testified on behalf of the Applicants in the rate hearings.
(See Rule 105, Faderal Rules of Evidence). While such a result would be legally mandated if portions of that testimony were to be admitted into evidence by the Licensing Board, a time consuming search of the record of those other proceedings would then be required, as would the introduction of large volumes of irrelevant and immaterial matter into the record of this pro-ceeding -- matter which would not in any way be material or probative on the issue of the Applicants' financial qualifications.O For these reasons, the Staff believes that the testimony transcripts referred to by CASE should not be admitted into evidence in this proceeding.
y The Staff notes that CASE, itself, has admitted that "the volume of pleadings, transcripts, and other information generated in the past several years" of just one of the Applicants' rate hearings has resulted in difficulty for CASE in identifying which portions of those records to use in this proceeding.
See " CASE's Answer to NRC Staff's Motion for Summary Disposition on Contention 25 (Financial Qualifications)," dated November 18,1981, at 18.
Indeed, CASE has stated that it has "so much" of that type of information, "that it would be a disservice to all parties and the Board to burden the record with copies of much of it" (id., at 19). The " burden" cited by CASE surely must increase significantly if the various rate hearingsof all the Applicants are to be examined, not just by CASE but by the Applicants and Staff as well.
.. CONCLUSION For the reasons set forth above, the Staff opposes CASE's Motion
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and recommends that it be denied.
Respectfully submitted, hIo {fb Sherwin E.' Turk Counsel for NRC Staff Dated at Bethesda, Maryland this 30th day of November,1981
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