ML20034H836
| ML20034H836 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 03/12/1993 |
| From: | Dow R AFFILIATION NOT ASSIGNED, DISPOSABLE WORKERS OF COMANCHE PEAK STEAM ELECTRIC |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#193-13721 CPA, NUDOCS 9303220134 | |
| Download: ML20034H836 (6) | |
Text
{{#Wiki_filter:-st n a - 1 2 - 9 s >= R 1 is:s2 e a Twomas e,o1 a ' /372 / V UNITED STATES OF AMERTCA -{I[ L' NUCLEAR REGULXIDRY COMMISSION 33 tiAR 12 P4 :24 I In the Matter of ) 4 ' : i TEXAS UTILITIES ELECTRIC COMPANY ) Docket No 50-446 iCPA; ) ) (Comanche Peak Steam Electric ~ Station, Unit 2) RESPONSE TO ORDER TO SHOW CAUSE BY PETITIONER R. MICKY DCM Comes now, R. Micky Dow, himself, and by. and on behalf of the Disposable Workers of Comanche Peak Steam Electric Station, as an officer thereof, and does hereby file a response to an order served, by telephone facsimile, March 5,1993, wherein he was to show cause why the Commission should not: "(1) dismiss the proceeding and the pending appeals as moot; (2) vacate the Licensing Board's order in accordance with United States v. nunsingweer, Inc. 340 U S 36 (1950); (3) and deny any further extension as unnecessary, thereby treating the construction permit as having expired as of the date of a Commission order dismissing the proceeding as moot.", and will, accordingly, show that: I. PROCEEDING AND PENDIl0 APPEALS NOT MOOT
- 1. Proceeding Is To Determine If Extension Applicable.
The " proceeding" referred to in the order, the subject of this response, is certainly not moot, by any stretch of the imagination. Some very serious due process concerns have already arisen in the fact that the I Comission granted the construction permit extension, in the first place. without affording the interested public an opportunity to make objection / input to that process, the subject of which has already been RESPONSE TO ORDER 'ID SHOW CAUSE BY PETITIOhTR R. MICKY DOW PDR ADOCK 05000446< gO 9303220134 930312 Q PDR
p k
- G A R -- 1 2 - 9 3 F R.I 15: 55-C A
THOMAS P'. O 1-t.. e q' taken to the U S. Court of Appeals for the District of Columbia Circuit, by - these pettrionnrs, then withdrawn, 'due to _ clerical error, and an appeal i refiled, directly with the Comission. The Commission GRANTED that appeal on or about January 14, 1993. If that appeal was viable then, as the ruling indicates, it is viable now; and, to usurp the appellate process is, in effect, to deny these petitioners their rights of Due Process, which would have a staying effect on these ' proceedings, if taken to. the U.S. Court of Appeals; but, to force - petitioners; into 'such a' position could easily be viewed as abuse of discretion by the Comission. The Commission cannot., simply, make' the arbitrary decision that; the-appeals are moot, merely because they have failed to rule upon them in a timely fashion. To do so, to allow the clock to toll against-the petitioners, while they allow the clock, to to11 'in favor of the license holder,-is to show preferential treatnent to the license holder, and is, certainly, subject matter for review by the courts. k'hile, it may be true, that a portion of-. the function ' of _ this Comission is to promote the use of nuclear energy; its stated function,. in the law, is that of serving the best interests of the public at large; and, t in that role, it cannot ignore the voice of the public when it. raises objection, without Due Process. There is nore at stake, here, than a/the single appeal filed by these petitioners; there are, at least. two other interlocutory matters,~ raised-by the other petitioners, a large portion of dich involves the discovery of new, and most relevant evidence, evidence, which. after review, will, tin all probability, have a destructive influence upon the ' viability? of the - license. Itself. Anytime there is the discovery and/or-revelation of new' RESIONSE TO ORDER 'IO SIKM CAUSE BY PFTITIONER R. MICKY DOW ' s o A
y r- . 14AR-12 793-FRI. 15: 56 -C A THOMAS P.02' w L evidence, the courts have. consistantly, opted for some manner of pause, stay. or hearire,s process whereby the importance, and/or impact the new material might have, influence, or alter the matter at bar. If a party is litigating, and becomes involved in a situation whereby the hearings process is needed, or compulsory, that party is entitled to a hearing, and, as the courts of appeal have consistantly ruled. MUST, be afforded that ~ hearing. It is an issue which is a matter of right, 'and the Commission l lacks, nor ever had, the discretionary power to deny that right. The basic, and obvious, summation, of the hereinabove, is that if-the intervening parties had prevailed, the construction permit would not have been amended, and, consequently, the Unit 2 of CPSES would not be in the present stage of completion. and the license holder would not be in the present position of trying to diagonally slice through law to obtain a license for full power operation, thereby arriving at the predominate conclusion that a hearings process must be had.
- 2. No Basis In Law To Support Vacation.
There is no viable basis, in law, by which the Commission can vacate the subject order. The single. cite, which is used to support point #2, in f'! the order, the subject of this response, refers to a case which was adjudicated, fully FOUR YEARS before, even, the Atomic Energy Act, itself. The courts. the judiciary, the public at large, in 1950, had any idea that the future, and, in particular. the immediate future, would contain, or 1 present, a set of circumstances, such as this, requiring adjudication; thus, there is no way to detemine, if, had the Munsingwear court been one with the same information as a court of the present day, would they rule as - they did in 1950? No susbstantive cites are noted, no nexis can possibly RESPONSE 'ID ORDER TO SHOW CAUSE BY PETITIONER R. MICKY DOW,
e MVaR 12-93. FRI 1' 5 - :.S 9 C A. THOMAS-P 01- [ 0 be drawn, and here are three cases which clearly _ dissent from the t Munsingwear case. and would., therefore, defeat its purpose,. which defeats Boston police Patrolmans' Association, Inc. v. Castro, 468 the argument. U.S.1209; U.S. v. Sharpe, 470 U.S. 725; Mintzes, Warden v.- Buchanon, 471 U.S. 155.
- 3. No Adequate Argument Available, Issue Exists By Pressumption.
'j It would be ludicrous to attempt any manner of argument, and/or to the third point raised in the order, the subject of this objection, i response. The statement, point 3. identified as (3) clearly would have - the reader PRESUE, that point one has already prevailed. khile the' Constitution of the United States clearly establishes the presumption of innocence. there is no other place in law where - a preseumption.- can, o.r - does. exists; rather the law requires a preponderance in~ order to support 1 any matter to a ennelusion, lacking default. CONCLUSION t The language of the order, the subject of this response, clearly. l indicates that the general public, or any portion thereof, have N0iy due. process availability with regard to this present issue. It is apparent, in the language, that the Comission has decided to issue the full-power. license, and the order, the subject of this response, was issued in order to " sweep away" any debris of argument. khat is moot is the subject of. i argument / objection itself, as is evidenced by the "after-the-fact" attitude of this order. hMEREFORE, PRDGSES ONSIDERED, this intervenor vould state and aver C -i that there is no justifiable basis for dismissing any proceedings which' have any connection to the construction permit extension, and there 'is no RESPONSE TO ORDER TO SHOW CAUSE IN PETITIONER R. MICKY DOW ; l f
(_ M'A R - 1 2 - 9 3-. fr R I 16: 00 C A' THOMAS P. 02_. _ _. ] i e d j mootness to a matter which has not been fully adjudicated, particularly en ih d khen those points and issues being' adjudicated are of sufficient we g t an - merit to drastically alter, and/or reverse the present direction of these 3 proceedings. There is no basis in law for dismissing these proceedings, but, I rather, a substantial basis in law for their continuation. i There is no basis in logic for addressing the third point of order, j t I J j for it presumes merit where there is none. The Ccomission is attempting to suggest to the intervenors : that further objection is useless, for a decision has been made to issue a license for~ full-power operation of Unit 2 at CPSES, and would further suggest that all parties simply " drop-it", for it is moot. These intervenors would strongly oppose such a theory and/or presumption, and would restate their position that, given an objective hearing format, sufficient evidence can and will be placed on the record of such ' sufficient merit that the extension to the construction permit will-be denied. In closing, these intervenors request the proceedings not be' dismissed, but, rather, brought to a full public inquiry status. Respectfully submitted, \\, Nt R }UCKY DOW. p40 de ~ 506 tiountain View Estates Granbbry,, Texas 176048'.: (817) 573-0923 Petitioner RESPONSE *IO ORDER TO SHOW CAUSE IP/ PIHTTIONER R. MICKY DOW....,........... _..........
- r. - -
,, M fC R - 1 2 - 9 3 - FRI 16: O1 C A THOMAS p.03 b, CERTIFICATE OF SERVICE 'Nh.$ '~ Jte forenoinf,4 :24-This is to certify that a true and correct copy of (50 MAR 12 P Response To Order To Show Cause By Petitioner R. Micky Dow was-sent by' cm mr rr c: telephonic transmission to the Secretary of the Comission atD30Ef50Afl67Ar;,j.,
- jgj-
. im e,nt i I George Edgar, counsel for license holder at 202-872-0581; and Michael Kohn, counsel for intervenor at 20L-462-4145, on this the ~ 12th day of March, 1993. \\. R Affiant l i 1 l i '!}}