ML20033C081
| ML20033C081 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/27/1981 |
| From: | Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8112020640 | |
| Download: ML20033C081 (9) | |
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IJ:u a c y-- 2_---- Noyemb;r 27, 1981
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^'-n UNITED STATES OF AMERICA gjg; NUCLEAR REGULATORY COMMISSION NOVg2:i6 BEFORE THE ATOMIC SAFETY AND LICENSING BOA 181 In the Matter of
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Docket Nos.,50-445N:M TEXAS UTILITIES' GENERATING
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50-446 CO?iPANY, et al.
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(Application for (Comanche Peak Steam Electric )
Operating Lice Station, Units 1 and 2)
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nA APPLICANTS' ANShT.R TO
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CASE'S MOTION FOR ISSUANCE OF SUBPOENAS DECJ d2 1981u
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Pursuant to 10 C.F.R. SS 2.720 and 2.730, Texa4'Util-ss s
ities Generating Company et al. (" Applicants") hereb % Mbht:
the November 18, 1981 Motion by the Citizens Association for Sound Energy
(" CASE") requesting that the Atomic-Safety and Licensing Board
(" Board") issue Board subpoenas calling certain individuals as Board witnesses.
Apolicants submit that CASE has failed to demonstrate that this is the extra-ordinary situation where such Board action would be appro-priate.
CASE moved the Board to issue subpoenas to certain employees, officers and former officers of Applicants re-quiring them to appear as witnesses at the forthcoming hearings.
CASE intends that they will testify as to the direct testimony and cross-examination of each in various rate cases which have transpired over the last three years.
CASE also moved the Board to subpoena two public officials,
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the. authenticity of certain documents from earlier. state.
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w and Dallas city rate proceedinas.
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CASE's Motion Should Be Denied
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CASE's motion for issuance of these subpoenas sh'oul? be "
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denied.
First, the issue raised by CASE (financial'qualifi ff
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of Board subpoenas.
Second, CASE's motion is dilatory',s.would lead to presentation of cumulative material, and_invo.1ves irrel-evant matters or matters of such marginal relevance -that it would beawasteoftimetoallowCASEtopursueiksintendedtack..
ac CASE.ptates in'ithnmotion tnat 1 Sionificance of Issue.
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(ai r~ quired it is unable to pay witness fees and expenses e
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i,A-s by 10 C.F.R. 52.720(b)) to those witess it seeks to cross-n examine at the hearing.
Toavoidthisliabilh.y nd its
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respensibilities as a party, yet still have its way, CAS,b
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requests 'that the Board call such 'pe'rsons aa Boafd; witnesses p._
j-7 However, CASE has failed to meet the, crit'eria set'forth by 7
the Appeal Board in Consumers Power Company '(Mid,layd Plant, \\ - 3, Units 1 and 2), ALAB-382, 5 NRC 603 fl977), tosgovern such extraordinary requests.
Accordingly, this request is simply '
an attempt-by CASE to obtain indirectly that federal finan-I cial assistance which it is prohibited by law f cm rece'iving-
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directly, and should be denied.
Of course, the Board has the authority to call-its own,p 14.
witnesses, 42 U.S.C.
52201 (c) ; 10 C.F.R.
- 52. 718 (b), but it 5 should not (and may not) use this authority to render indirect financial support to an intervenor.
The Commission has stated that Congress has precluding public funding of L
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intervenors, a$d the Comptroller General has issued a similar p
opinion.1 See Metropolitan Edison Company (Three Mile Island Nucle.ar Station, Unit 1), CLI-80-19, 11 NRC 700, 702-03 (1980); Houston P6wer & Light (Allens Creek Nuclear i
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Generating Station Unit 1),- ALAB-625, 13 NRC 1, 14 (1981).
The Appeal Board has stated that Boards, in their discretion, may issue Board subpoenas sought by intervenors claiming lack of resources in limited situations where the evidence involved l'is' " relevant and important for.
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resolution of a rignificant contested issue."
Midland, supra,
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~5~NRC'at 608 (emphdsis added).
It also stated that other N
q = factors to consider in this; regard are whether it is a "close" e
case involving key safety.or environmental issues," and
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- whether a party 'objecis.'tohb'esentation of the evi.dence in
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Applying the criteria set forth in Midland, supra, it l
is cleaf that the'. Board should not subpoena the individuals
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,s-identified in CASE's motion as Board witnesses.
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evidence :in quh:stion is either irrelevant or of such marginal re'le.vanck as to be inadmissible (see discussion, infra), and f
'is nct important for resolution of the issue of Applicants' c
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, financial qualifications.
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'Second, the question of. financial qualifications is not
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-1 la " key'safn y or environmental" issue.
In fact, the Commis-3
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1 sion has stated that " existing financial qualifications review hac done little to identify substantial health and safety concerns at nuclear power plants."
46 Fed. Feg.
41186 (August 18, 1981)_.
The Commission also has "tenta-i L
n tively concluded that the present financial qualifica-tions review can appropriately be eliminated for electric utility applicants, which can be presumed to be able to meet the financial demands of constructing and operating nuclear power plants."
Id. at 41788.
Obviously the Commission would not propose to eliminate financial qualifications from NRC review if it was a " key" issue.
Finally, the fact that Applicants object to the motion 4
should be reason enough to deny CASE's request, especially in view of the bases for the objection, as discussed above.
For all of these reasons, it would be inappropriate for the Board to grant CASE's motion.
Admissibility of Evidence.
It is obvious from CASE's motion and other recent pleadings that it intends to recount the details of numerous rate cases of Applicants before the Texas' PUC and the City of Dallas.
Such a tack by CASE is dilatory and not designed to lead to the presentation of admissible evidence.
It wi21 take many-days (if not weeks) of trial to complete the record on financial qualifications if CASE is permitted to rehash in depth various rate cases involv-ing Applicants.
It is the results cf the rate cases that are n.aterial before the NRC, and Applicants will present these results in their direct case.
The minutia of the rate cases are not relevant or material.
Viewed in this light, Applicants question the relevancy and hence admissibility of the testimony CASE would adduce through the witnesses it seeks to have subpoenaed.
FED.R.
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EVID. 401.
NRC Rules of Practico provide that a presiding officer may require a showing of relevance before he issues a subpoena and, if such a showing is not made, he may decline its issuance 10 C.F.R. 52.720(a).
In the context of the present motion,o relevancy should be determined by reference to Commission regulations setting forth the recuirements Applicants must satisfy to show they are financially quali-fied to operate Comanche Peak.
.Those regulations state that Applicants ordinarily have to demonstrate that they have "reasonab1'e' assurance" of obtaining funds (a) to operate the plant for each of the first five years of operation and (b) j to decommission the facility.
10 C.F.R. 550.33(f) and C.F.R.
Part 50, Appendix C.
To demonstrate such " reasonable assurance," Applicants must only establish the existence of a reasonable financing plan under the circumstances.
Matter of Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 18 (1978).
Applicants will satisfy this burden by setting forth its financial plan for meeting the es.timated costs.
That plan includes the filing of rafe requests with the Texas PUC, which regulates sale of electricity for five of the six Applicants. */
The PUC is required by law to fix overall revenues at a level which will permit them to recover their.
operating expenses together with.a reasonable return en their invested capital, a6d to set "just and reasonable rates" for
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- The sixth Applicant (TMPA) will recover costs through rates established unilaterally.
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electric utilities.
Texas Public Utility Regulatory Act, SS 38 and 39, Article 1446 (c) of Vernon's Annotated Texas Statutes.
When viewed in this light, testimony before the Texas PUC in past rate cases simply has no bearing on whether Applicants are and will be financially qualified to operate and decommission Comanche Peak.
Under Commission regula-tions, the inquiry in this proceeding is whether Applicants are reasonably assured of an adequate level of revenues.
The answer to that inquiry brings into play the extent to which the PUC will allow them to recover those revenues from their customers.
If Applicants can show that they have recove' red and are likely to continue to recover such costs through PUC rulings, then the Board need not inquire any further into those collateral proceedings.
Matter of
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Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), LBP-77-68, 6 NRC 1112, 1162-64, aff'd, ALAB-491, 8 NRC 245 (1978).
Thus, because granting CASE's motion would lead to irrelevant and inadmis-sible testimony, the motion sho'uld be denied.
In any event, even if the testimony may be relevant, it is excludable if its probative value is substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
FED.R.
EVID. 403.
Clearly any testimony CASE would adduce from the individuals which it would have the Board subpoena is substantially outweighed by the facts that it wour, be cumulative to the material points made by Applicants in
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their direct case, and would result in unnecessary delay and expenditure of time.
For these reasons alone, CASE's motion should be denied.
Respec f ly s mitted,'
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Nichola S/ Reynolds DEBEVO E
LIBERMAN 1200 17th 5treet, N.W.
Washington, D.C.
20036 (202) 857-9800 e.
Counsel for. Applicants November 27, 1981 e
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UNITED STATES OF AMERICA
.NULLEAR REGULATORY COMMISSION m gige "3tiP' BEFORE THE ATOMIC SAFETY AND LICENSING BOAFD
'81 NOV 30 P2:16 In the. Matter.of
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,Jimi$cRETtRYSEF.VIC c-TEXAS' UTILITIES GENERATING
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Docket Nos. 50-445 COMPANY, et'al.
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50-44'6 ' EP.ASCH
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(Comanche Peak Steam Electric )
(Application for Station, Units 1 and 2)
)
Operating Licenses.)
CERTIFICATE OF SERVICE 2
I hereby certify that copies of the foregoing " Applicants' Answer to CASE's Motion for Issuance of Subpoenas" in the above-captioned matter were served upon the folicwing persons by deposit in the United States mail, first c] ass postage. prepaid, same-day delivery (*),.or overnight delivery (**)
this 27th day of November 1981:
- Marshall E.
Miller, Esq.
Chairman, Atomic Safety and Chairman, Atomic Safety and
, Licensing Appeal Panel Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commis.cion Washington, D.C.
20555 Washington, D.C.
20555 Marjorie Ulman Rothschild, Esq.
- Dr. Kenneth A. McCollom Office of the Executive Legal Dean, Division of Engineering, Director
' Architecture and Technology U.S. Nuclear Regulatory Oklahoma State University Commission i
Stillwater, Oklahoma 74074 Washington, D.C.
20555
- Dr.. Richard Cole, Member David J. Preister, Esq.
~i Atomic Safety and Licensing Assistant Attorney General
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Board Environmental Protection U.S.
Nuclear Regulatory Divi -ion i
Commission P.
O. Box 12548 Washington, D.C.
20555 Capitol Station Austin, Texas 78711 Chairman, Atomic Safety and
- J.
Marshall Gilmore Licensing Board Panel
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L U.S.
Nuclear Regulatory 1060 W.
Pipeline Road Commission Hurst, Texas 76053 Washington, D.C.
20555
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- Mrs, Juanita Ellis' Mr. Chaso R.
Stephens President, CASE Docketing & Service Branch.
1426 South Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C.
20005 t
Nicholan eynolds u;
cc:
Homer C.,Schmidt Spencer C.
Relyea, Esq.
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