ML20035D415
| ML20035D415 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 04/02/1993 |
| From: | Edgar G TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#293-13839 CLI-93-10, CPA, NUDOCS 9304130188 | |
| Download: ML20035D415 (30) | |
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April 2, 1993 I
UNITED STATES OF AMERICA
'93 TC -2 P 4 34 NUCLEAR REGULATORY COMMISSION i
BEFORE THE CONWISSION
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t In the Matter of
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TEXAS UTILITIES ELECTRIC
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COMPANY
)
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Docket No. 50-446-CPA (Comanche Peak Steam Electric
)
Station, Unit 2)
)
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TEXAS UTILITIES ELECTRIC COMPANY'S RESPONSE TO PETITIONERS' MOTION TO STAY ISSUANCE OF FULL POWER LICENSE AND TO STAY MEMORANDUM AND ORDER CLI-93-10 I
PENDING REVIEW OF CLI-93-10 IN THE U.S_C_OURT OF_ APPEALS _
r INTROD_U_CTION 3.
Irene and D.I. Orr's
(" Petitioners") April 1, 1993 Motien to Stay is, in reality, a motion for recensideration of the Nuclear Regulatory Commission's ("NRC" or "Co.uission") well-j reasoned decision in Texas _Utiliti_es_ Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 NRC (Mar. 30, 1993)
(" Order *), which dismissed Petitioners' appeal of LBP-92-37 as moot.
Petitioners' instant Motion raises no new issue nor provides any persuasive argument that the Commission's decision is erroneous in any respect.
As more fully set forth below, Petitioners' pleading demonstrates, at best, a fundamental misunderstanding of the mootness doctrine.
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Apart from its finwed discussion of the mootness doctrine, Petitioners' Motion consists of nothing more than a Y
rehash of unfounded allegations already addressed and rejected by the Licensing Board in LBP-92-37, and a repetition of counsel's irresponsible and baseless accusations of alleged misconduct by TU Electric.
Indeed, other than pages 1-4 (Petitioners' cbjection to the Commission's decision in CLI-93-10),
t i
Petitioners' Motion is an almost verbatim extract of its pending l
I March 15, 1993 Motion to Stay which has absolutely no bearing or relation to the Commission's Order in CLI-93-10 1/
Finally, TU Electric would note that in the last l
several months, Petitioners have inundated the Commission and i
TU Electric with frivolous pleadings replete with irrational l
arguments and unfounded (and in many cases reprehensible) d allegations.
The Commission is now confronted with Petitioners' third Motion to Stay filed in the last three months.
The issues I
raised in these motions are meritiess and were previously considered by the Licensing Board in its Decision of December 15, 1/
Petitioners' present Motion, from page 5 forward, is virtually identical to its March 15, 1993 Motion to Stay.
- ndeed, Petitioners' Motion makes only a very few immaterial word changes or deletions to its previous Motion with the exception of the ftrst four pages.
In order not to burden e'
the Commission with duplicative filings, TO Electric responds herein only to the arguments set forth at pages 1-4 of Petitioners' April 1, 1993 Motion.
TU Electric fully briefed Petitioners' remaining arguments in " Texas Utilities Electric Company's Response to Petitioners' Motion to Stay
- ssuance of Full Power License" filed March 19, 1993, a copy of which is attached for the Commission's convenience.
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t i 1992.
In order to bring these issues to a close, TU Electric urges the Cormission to affirm the merits of the Licensing Beard's decision in LSP-92-37 as a second basis for dismissing their appeal.
ARGUMENT The Co==ission Was Correct In Holding Petitioners' Challenge To The CPSES Unit 2 Construction Permit Extension Hoot en CLI-93-10, the Ccmmission dismissed Petitioners' appeal of L3P-92-37 as coot.
(Order at 22.)
The Ccmmissien found that pursuant to the Administrative Precedures Act, 5 U.S.C. 5 55B(c) and the Commisston's regulation 10 C.F.R. 9 2.109, the CF5ES Unit 2 construction permit did not expire on August 1, 1992, but continued in force pending a final decision cn TU Electric's applicatien for an extension.
(Order at 14-16.)
Hence, Unit 2 construction lawfully centinued and Egg coreleted, obvisting any need for a further extension of the ccnstruction permit.
(Order at 19.)
The Ccemissien, therefore, concluded that the relief scught by Petitieners -- denial of the extension request -- "does not rake a dif f erence to [their) legal interests,* because no extension was required.
Air _Line Pilots Ase'n :nt'l v. UAL__Cero., 897 F.2d 1394, 1396 (7th Cir. 1990) citing Ncrth Carc1ina v.
Fice, 404 U.S. 244, 246 (1971).
Petitioners nonetheless argue that their appeal is not mcot because the CPSES Unit 2 constructicn permit could not legally be converted into cn operating license.
In support of
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1 this position, Petitioners centend that the conversion of a construction permit into an operating license can only occur upon a finding that construction has been ecmpleted in " compliance with the terms and conditions of the construction permit,"
pursuant to 10 CFR 5 50.56.
Here, according to Petitioners, because CPSES Unit 2 construction was not completed by the date specified in the construction permit, no such finding could be made.
In making this argument, Petitioners apparently fail to understand that, by the action of law, the CPSES Unit 2 construction permit au_tematically continued in force and effect pending the determination of TU Electric's timely extensien application.
5 U.S.C. 5 55B(c) and 10 C.F.R. 5 2.109. 2/
As a 1/
This result is supported by the plain language of the APA and the NEC regulations.
However, the Cc= mission also cited cases in further support of this statement of the " timely renewal doctrine."
See CLI-93-10 at 15, n. 39,
_c_i_ tina Public Servic_e Comeanv of _ New Hareshire_ (Seabrook Station, Unit 2I, CL:-84-6, 19 NRC 975, 977 (1984) ("The extension requests are currently pending..., and by law the existing permits remain in effect.")
Was_hincton Public__P_ower _Sunniv Svstem (WPPSS Nuclear Project Nos. 1 & 2), CLI-82-29, 16 NRC 1221, 1230 (1982) ("(a procedural error has] no effect en the continuing substantive validity of the WPPSS construction permit pending any final agency action on the merits of the extension request.")
Moreover, the Ccmmission's decision, also conforms with other federal agencies' interpretation of the timely renewal doctrine, affirmed en appeal by the D.C. Circuit.
jee Natural Res_ource_s Def_ense C_cuncil, :nc. v. EPA, 859 F.2d 156, 213-14
[D.C. Cir. 1958) ("in each instance, the expired (discharge) permit is continued, not by affirmative agency action, but by Operation of law."); Conmissic_n for Coen Media v.
- F_CC, F.2d 861, 867-6B (D.C. Cir. 1976) I"We hold that Chronicle's
[ broadcast) license retained its vitality while its application for renewal remained undecided
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result, TU Electric completed CPSES Unit 2 pursuant to a legally
't valid construction permit.
At that point, the Unit 2 construction permit extension became immaterial to the subsequent l
issuance of the Unit 2 low power operating license.
Petitioners do not assert that CPSES Unit 2 construction is not complete, nor do they challenge the inherent legal validity of the " timely i
renewal doctrine."
Petitioners, therefore, have no logical or legal ground to dispute the Commission's conclusion that their t
appeal is moot.
It also is painfully obvicus that Petitioners do not r
grasp the relationship between the mootness doctrine and the circumstances of this case.
Put in its most simple terms, a controversy is moot when the relief sought has no _1_ecal-significance to the party soserting the challenge.
- Here, r
TU Electric's tirelv arrlication for an extension authorized the r
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centinued construction, and completion of Unit 2.
Because construction is complete, there is no further need for the i
extension.
Therefore, Petitioners' appeal challenging TU Electric's good cause justification for the extension is moot.
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As the Commission stated:
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the relief that the intervenors seek -- a denial of the construction permit j
extension -- would not make a difference to their interests.
The oniv question litigable in the construction permit extcasion proceeding -- whether TU had demonstrated
" good cause" for a construction permit l
extension for Unit 2 -- is no longer of legal interc:: now that TU lawfully completec F
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i construction under the permit and requires no further extension of the expiration date.
No effective relief can be granted the petitioners even if they were to prevail on their claim that further extension of the permit should be denied, because no further extension is required. 2/
Petitioners also claim that they were entitled to a hearing prior to the conversion of the construction permit into i'
an operating license and that the Cc= mission "is barred, pursuant to Section 189(a) of the AEA, from reaching the ultimate conclusion that TUEC has complied with the terms of the construction permit," (Motion at 3).
Petitioners argument is flawed in two respects.
t First, Petitioners argument is, in effect, a challenge to the Cc= mission's issuance of the CPSES Unit 2 operating-l i
t license.
As the Cc= mission has repeatedly held, Petitioners are i
permitted to challenge the issuance of the CPSES Unit 2 full not pcwer operating license because they were not parties in the CPSE5 Unit 2 cperating license proceedings.
(Order at 20.) f/
Second, Section 189(a) of the AEA dces not entitle Petitioners to a hearing in this instance, as the Cc= mission painstakingly discussed in its Order.
Here, unlike cases such as t
?rcoks v. AEC, 476 F.2d 674 (D.C. Cir. 1973), the construction 1/
CLI-93-10 at 18-19 (emphasis in original).
A/
Igg piso Texas Utilities _Electr_ic Co. (Ccmanche Peak Steam Electric Station, Unit 2), CLt-93-04, 37 NRC __, slip cp.
at 3-7 (Mar. 9, 1993).
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I i permit amendment challenged by Petitioners is no longer needed, and thus, the issue is moot and a hearing would serve no purpose i
whatsoever, i
As TO Electric has shown, Petitioners have not provided l
t any legal basis to demonstrate that the Commission erred, or conversely, that their challenge to the Unit 2 construction permit extension remains legally viable.
Petitieners have not i
disputed the Conmission's application of the " timely renewal doctrine," nor do they show why Unit 2 construction permit extensien did not lose its significance once construction was completed.
All they have done is repeat the same unsupported arguments made previously, which the Cennission fully and correctly addrecced in rendering its decision.
Because Petttioners have not demonstrated any effective relief which could be rendered now that Unit 2 construction is complete, Petitioners' Motion must be denied.
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CONCLUS_I_0N For the recsons stated above, the Ccmmission should t
deny Petitioners' Motion to Stay issuance of the CPSES Unit 2 full power operating license.
Furthermore, the Ccamission should affirm the serits of the Licensing Board's decision in LEP-92-37.
Respectfully submitted,
/
Robert A. Wooldridge Ge W L phmutz ar V
Thomas A. oc Worsham, Fcrsythe, Sampels &
Wooldridge Steven P. Frantz Suite 3200 1615 L Street, N W.
2001 Bryan Tcwer Suite 1000 Callas, Texas 75201 Washington, D.C.
20036 (202) 955-6600 Attorneys for TEXA5 UTILITIES ELECTRIC COMPANY ny.s.- 4o
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l UNITED STATES OF AMERICA j
NUCLEAR REGULA W Y COMMISSION BEFORE THE COMMISSION-
'93 ff'R -2 P 4 34
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In the Matter of
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TEXAS UTILITIES ELECTRIC
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i COMPA!W
)
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Docket No. 50-446-CPA (comanche Peak Steam Electric
)
station, Unit 2)
)
)
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r CERTIFICATE OF SERVICE I
I hereby certify that copies of " Texas Utilities j
1 Electric Ccmpany's Response To Petitioners' Motien To Stay Issuance Of Full Pcwer License And To Stay Memorandum And Order CLI-93-10 Pending Review Of'CLI-93-10 In The U.S Court Of Appeals" were served on April 2, 1993, by facsimile and by first i
class mail, unless otherwise indicated below, on each of the fellowing:
Office of Commission Appellate Administrative Judge Adjudication Morton B. Margulies, Chairman U.S.
Nuclear Regulatory Atomic Safety and Licensing Cc= mission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of the Secretary Administrative Judge U.S. Nuclear Regulatory Peter S. Lam Commission Atomic Safety and Licensing Washington, D.C.
20555 Board Attention:
Chief, Docketing U.S. Nuclear Regulatory and Service Section Commission i
(Original Plus Two Copies)
Washington, D.C.
20555 t
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. Administrative Judge Michael D.
Kohn, Esq.
James H. Carpenter Kohn, Kohn & Colapinto, P.C.
Atomic Safety and Licensing 517 Florida Avenue, N.W.
t Board Washington, D.C. 20001 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Janice Moore, Esq.
R. Micky Dow Marian L.
Zobler, Esq.
Sandra Long Dow Michael H.
Finkelstein, Esq.
506 Mountain View Estates Office of the General Counsel Granbury, TX 76045 U.S. Nuclear Regulatory Cc=missien Washington, D.C.
20555
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a Paul J~. 3/f/Kts 1615 1'S reet, N.W.
Suite 1000 Washington, D.C.
20036 (202) 955-6600 Dated:
April 2, 1993 1
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UNITED STATES OF AMERICA J.;.T" S-NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 1
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In the Matter of
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TEXAS UTILITIES ELECTRIC
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COMPA23
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Docket No. 50-446-CPA (Ccmanche Peak Steam Electric
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(Construction Permit Station, Unit 2)
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Amenf.imant)
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TEXAS UTILITIES ELECTRIC COMPANY'S RESPONSE TO PETITIONERS' MOTION TO STAY ISEUANCE OF FULL __ POWER LICENCE i
INTRODUCTION I
i Cn Msrch 15, 1993, 3. Irene Crr and D.I. Orr J
.Is-.
- nersi submitted a r.otion to stay the issuance of a full
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- cperating license for Texas Utilities Electric Company's
- TU Ilectric: Cc=anche Peak Steam Electric Station (CPSES),
Uni: 2.
See Fetitioners' Motion to Stay Issuance of Full Power 1.: cense ; Mot:.cn ; at 11.
- n accordance with the Nuclear
?.e;u; story Cc =ission's (NRC or Cc=ission) March 17, 1993 order, T*.' E;cc:lic hereby files its response to Petitioners' M:::cn. 1/
1 Gi/en the confused nature and number of issues raised in istitioners' Motion, the limited ti:ne afforded TU Electric by the Cc=1ssien to file a response (three days instead of
-r.e normal ten-day period under the regulations), and in ord6: to clearly present the relevant issues in this case to (continued...)
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For the reascns more fully set forth belew, Petitioners' Motion suffers procedural and substantive deficiencies, either of which requires its denial.
As a threshold matter, Petitioners were not parties to the Unit 2 cperating license proceeding and, therefore, cannot now seek a t
stay ci the Unit 2 full power cperating license.
- Moreover, Petit cners fall to satisfy any of the requirements of 10 C.F.R.
$ 2.755 for the issuance of a stay.
TU Electric, therefore, urges.he Ccmmission (1) to promptly reject Petitioners' Motien i
and (1) to deny, on the merits, Petitioners' appeal of the Licenstn; Scerd's Order cf December 15, 1992.
BACKGROUND Cn February 5, 1979, the NRC published a Federal i
F e r: 7-c* nctice on TU Electric's request for an operating license l
f:r hc-1 OPSES Units 1 and 2.
Egg 44 Fed. Reg. 6995 (Feb. 5, 19 i Cr.~une 27, 1979, the Licensing Scard issued an order t
1 gran:ing several petitions to intervene in the proceeding.
See T = v ;.: 'J::lities Generatino Co_.
(Comanche Peak Steam Electric statica, Units 1 and 2), LEP-79-18, 9 NRC 728 (1979).
After years cf hearings on the license cpplication, the parties reached a se::lenent agreement dismissing both the construction permit 1 f,..centinued) the Commissica, TU Electric was forced to exceed the page 11r:: requirement set forth in 10 C.F.R. 5 2.788(d).
TU Electric requests the Cc= mission's tndulgence with respect c this matter.
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. amendaent proceeding -- Docket No. 50-445-CPA -- and the Unit 1 and Unit 2 cperating license proceedings -- Docket Nos. 50-445-OL and 5^-446-OL.
See Texas ___Ut_i_12 ties _ Electric Co_._ Comanche Peak Steam Electric Station, Units 1 and 2), LBF-88-18A, NRC 101 (1965:: LBP-88-ISB, 28 NRC 103 (1988).
On April 7, 1990, the NRC ssued a full power operating license for CPSES Unit 1.
Fetitieners never participated in the Unit 1 or Unit 2 operating license prcceedings.
Cn February 3, 1992, TU Electric timely requested an extensi:n of the CPSES Unit 2 construction permit. 1/
On Culy :, 1992, Petitioners and two other individuals petitioned
- in:ervene and requested a hearing regarding TU Electric's
- .structicn permit extension application. 3/
Both TU Electric and the ::RC Staf f opposed the petition.
The Licensing Board subse;;ently issued a Memorandum and Order (LBP-92-37) on December 15, 1992, which denied Petitioners' intervention request and terrinsted the CPSES Unit 2 construction permit extension prorseding. A/
Cn Decerber 26, 1992, the Petitioners in the presen: case petitioned for Commission review of LBP-92-37 This appes; is currently pending before the Commission.
1 TXX-92041, Letter to NRC from W.J. Cahill, Jr. (TU Electric) dated Feb. 3, 1992.
1, On October 5, 1992, Petitioners filed a supplement to their Culy 27 request.
3_.
Ten s 'J: i : i_ tie _E_ E_1_e ct ri c Co. (Conanche Peak Steam Electric 5:st:en, Un : 2), LBP-92-37, slip op. at 51 (Dec. 15, 1992) there nafter " Licensing Board Order").
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Cn February 2, 1993, prior to issuance of the low power operating license, Petitioners filed a request to stay the issuance of the low power operating license.
The Commission denied Petitioners' stay request because Petitioners were not parttes to the CF5ES Unit 2 cperating license proceeding. 5/
On February 2, 1993, the NRC found that the
- nstruction of CPSES Unit 2 was substantially completed, and issued ne CFSES low power operating license authorizing fuel 1:ading and Operation up to five percent of full power.
As shown abcVe. Petitioners have made absolutely no attemp: to parttetpate in the CPSES Unit 2 operating license pr:reedtng.
Instead, their participation has been limited to an c: er;ted intervention in the construction permit extension pre:eed ng.
ARGtrMENT FETITIONERS WERE NOT PARTIES TO THE PROCEEDINGS BELOW AND, THEREFoRE, CANNOT__NoW SEEK A STAY Fetitieners were not parties to the adjudicatory proceedtn; held by the NRC to consider whether an operating 1 :ense should be issued for CPSES Unit 2.
Petitioners, therefere, cannot now seek a stay of the issuance of the Untt 2 full p:wer Operating Itcense.
As the Connission stated in reject ng Fetitioners' February 2, 1993 request to stay issuance 1;
Texas Utilities Electric Cc. (Ccmanche Peak Steam Electrte
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5tation, Unit 2), CLI-91-02, 37 NRC __ (Feb. 3, 1993).
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. of the Unit 2 icw power operating license, the regulation gcVerning stays provides only for stays of decisions or actions in the proceeding under review -- in this case the CFA.
However, petitioners do not relate their request to any action in the CPA.
Therefore, the request for stay is beyond the secpe of section 2.788 and is more prcperly a petition for immediate enforcement action under 10 C.F.R. S 2.206.
Tex 3= "*:lir:es Electric Co. (Comanche Peak Steam Electric station, " nit 2), CL 02, slip op. at 3 (Feb. 3, 1993).
In the instant case, Petitioners nake no attempt to efen remotely " relate their request" for a stay of the full power cpera:;ng _;;ense to the construction permit extension prcte+ ding.
Petitioners' Motion sirply constitutes a thtnly-ve:1ed attempt to avoid the cc mission's crder in CLI-93-02.
- eti::eners' action should, therefore, be rejected on these grcunds alcne.
II.
PETtTIONERS KAVE FAILED TO SATISFY ANY OF THE REQUIREMENTS IN 10 C.F.R.
I 2.788 FOR THE ISSUANCE OF A STAY Petitioners have failed to satisfy any of the requ; ements set forth in 10 C.F.R. 5 2.75B(e) necessary for the issuance of a stay. 1/
10 C.F.E. 5 2.788(e) requires the 1/
Petitioners also fail to meet the procedural requirements f cr a stay in section 2.7Bs (a) and (b).
First, section 2.~5G(a) requires a stay application to be filed within ten
- 1C: days after service of a decision or action of a prc : ding efficer Here, the only decisicn or (continued...)
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Ccmmission, in determining whether to grant or deny an application for a stay, to censider (1)
Whether the moving party has made a strong showing that it.is likely to prevail en the merits; (2)
Whether the party will be irreparably injured unless a stay is granted; (3)
Whether the granting of a stay would harm other parties; and (4)
Where the public interest lies.
Under section 2.788(e), no single factor is necessarily i
dispcsitive.
Rather, the strength or weakness of the movant's sh: wing en a particular factor will determine how strong his shnuing en the other facters must be in order to justify the relief he seeks.
,5,=_e., _e. c., ?_ubli_c Service Co. of New Ha rshire I
'Esikrc:k Staticn, Units 1 & 2), ALAB-338, 4 NRC 10 (1976).
Fetit:cners f ail te carry their burden en any of the four t
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action of a presiding officer frcm which Petitioners could seek a stay is the December 15, 1992 Licensing Board order denying Fetitioners' intervention request in the i
c:nstructicn permit amendment proceeding.
- Second, Fetitioners fail to meet the requirements of section 2.78S(b)(3), which provides that "[t)o the extent that an application for a stay relies on facts subject to dispute.
[the stay application must contain) appropriate references i
to the record er affidavits by knowledgeable persons."
Fetttieners' F.otion contains a Statement by Ronald J. Jcnes which is neither notarited or otherwise legally sworn tc.
Mere ver, Petitioners present no evidence as te how i
Mr. Jones, e~ ployed nearly a decade ago at CPSES, is at all kntw'sdgeable concerning current matters at Unit 2.
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Petitioners Will Not Suffer Irreparable Injury As A Result Of Issuance Of The Pull Power Operating i
Li_ce_nse For CPSES Unit 2 While Petitioners shoulder the burden of =nking a ccrpelling shewing on each of the four factors, the factor which has proved most crucial is the question of irreparable injury to e
the novants if the stay is not granted.
Alshama Power Co_._
(Jeseph M.
Farley Nuclear Plant, Units 1 and 2), CLI-81-27, 14 l
3 Nhc ~95 (1951).
Petitioners apparently argue that they will
[
suffer irreparable harm because of the increased risk to their hea.th and satety if a full power operating license is issued.
(M;.ticn at E.)
Further, Petitioners claim that
- issuance of a ful; p:wer license prior to resolution of Petitioners' CPA l
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. will deprive Petitioners of their right to due i
pr: ess" and thereby cause them irreparable injury.
(Id. at 9.)
l Ns: u.13 are Petitioners' arguments totally unsupported by any i
sound infermatien or sworn affidavits, but none of these i
arguments establish irreparable injury to Petitioners.
i Fe:::icners simply have raised no issue, nor made any legally f
cognizable showing as to significant or imminent harm. 1/
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A pcrty must reasonably demonstrate, and not merely a;;ege, irreparable harm.
S e e Ph i l a d e l th i a E l_e_;_t r_i _e_C_o.
2 Remarkably, Petitioners point to no evidence of record and l
present no factual affidavits showing any possibility of
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- njury to them.
All that is presented to the Commission is s Icwyer's unsupported arguments and a single attachment whi;h ?rc responded to herein, but which in no way demenstrate irr& parable injury to Petitioners.
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8-(Limerick Generating Station, Units 1 and 2), ALAB-814, 22 NRC 191 (1985).
Similarly, vague and speculative risks of future e as, Wisconsin harm do not constitute irreparable injury.
- See, s
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FEPC, 758 F.2d 669, 674 (D.C. Cir. 1985) (injury must
)
be "bc:P certain and great; it must be actual and not i
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thecretical," and "[b)are allegations of what is likely to occur are tf no value since the court must decide whether the harm will in f s r occur." (emphasis in original)); Public Service Co. of I:e - Msr s?:re (Seabrook Station, Units 1 and 2), CLI-59-5, 29 NRC i
l 3??, 4:7-;0 (1959) (intervenor must "do more than recite claims l
cf 1:sk cf scre future harm, without discussing the likelihood or d+; tee of any such risk.").
Petitioners have failed to dem:ns: rate tha: the cencerns it raises have any safety 2:gnif::ance er :=minence or that they will suffer any cogni:nble irrepar:.hle injury.
i Xerecver, Petitioners' claims of due process d+;;res en, resulting frc= the pctential mooting of their
- ns:ructicn permit amendment appeal, do not constitute
- rreparatie injury.
It is settled that "the potential mooting of an appeal does not p_eX Le ccnstitute irreparable injury; it also rust be established that the activity that will take pisce in the absen:e of a stay will bring about concrete harm."
Lene Island I
Lich-ino tem (Shoreham Nuclear PcWer Station, Unit 1), ALAB-810, i
i 2; ::.: 1616, 1620 (1985); _s ee n i s o Duke Power Co, (Catawba I:uclear Stat;on, Units 1 and 2), ALAB-794, 20 NRC 1630, 1635 1
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Here, in the absence of the slightest showing of any harm, Fetitioners' due process claim must be rejected cs a basis i
for a stay.
In short, Petitioners failed to establish even a colcratie argument for irreparable injury.
3.
Petitioners Have Not Damenstrated Any Likelihood
_Of_ succe s s____On The Heri_to As TU Electric has already demonstrated, Fetitioners w:_; n : suffer irreparable injnry as a result of the Ccmr:ss:cn's authorization of CPSES Unit 2 full power operation.
Fursuant to the Commission's holding in Kerr-McGee Chemical Ccrn, P.le s t Chicago Rare Earths FScility), ALAB-925, 31 NRC 263, 269 1??
Fet:tieners therefore have the extraordinarily heavy burden cf demonstracing "that a reversal of the decision under arrack is nct merely likely, but a virtual certainty." 8/
i l
In what fo110ws, TU Electric will show that Petitioners h=ve not, and cannot, meet this burden for three reasons.
- First, w;;h the issuance of the CPSES Unit 2 low power operating i
1 cense, all challenges to the construction permit extension appi cation beca: e moot.
Second, in reference to the Licensing Echrd Order, which is the subject ratter of their appeal, Fetitieners have utterly failed to demonstrate in any way that 1
Tee aise Flerlda.-Power & Licht _-Co.
(St. Lucie Nuclear Power
._snt, Un:t 2), ALAE-404, 5 NRC 1185, 1189 (1977) ("[in) the sheen:e ci irreparable injury, it would take on overwhe1rina shew:nr of likeliheed of succer: on the =crits for the tntervencrs tc chtain an immediate stay.")
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the Scard Order is somehow erroneous,.r.uch less demonstrate that its reversal is a virtual certainty.
And third, the "new" information Fetitioners provide in their Motion is not relevant to the ccnstructi=n permit extension for CPSES Unit 2.
1.
The Conversion of The CPSES Unit 2 Construction Permit Has Mooted Petitioners
- Appeal Foraciosing Any Possibility Of Success On The Merits it is well established that a case is moot, and hence
- :;st:: table, f it has lost *its character as a present, live cer*.r: c sy of the kind that must exist if [the Court is] to vct:d 6dvisory opinicns on abstract propositions of law."
Ft.: -
Eer: 5, 396 U.S.
45, 48 (1969) (per curiam); --sse else v
"+r
-k, 395 U.S. 486, 496 (1969;.
The Commission 7~ =:'
ct s e: -te s the m:c ness standards developed in the federal court sys:er Ferr-Mrsee Chericci Cere. (West Chicago Bare Earths F 5 AL;.5 - 9 4 4, 33 NRC 81, 102 (1991), citino Pa wll, 395
..S.
- 4 6,
and Ccuntv of Les Anceles v.
Davis, 440 U.S.
- 625, i
Fetitioners' appeal of the December 15, 1992 Licensing EcArd Order is = cot because the Unit 2 construction permit no 2cnger exists.
On February 2, 1993, pursuant to 10 C.F.R.
s; S:.:3 and 50.56, the NRC converted the CPSES Unit 2 ccnstruction permit into the Unit 2 low power cperating license.
As e resu;t, the Unit 2 construction permit was extinguished and, thus, there ts no case or controversy for the Commission to 1
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adjudicate.
In a nearly identical situation, the Federal Communications Commissicn (FCC) reached precisely this ccnc'.usien.
5unburv Broa dca sd na _ Co_rn_._,
(Radio Station WKOK, Sunbury, Fa.), EMP-12870, 23 FCC.2d 598 (1970).1/
There, the FCC held that co.Tpletion of construction of a radio facility during the pendency of a construction permit extension application and the issuance of an operating license moots all outstanding challenges to the extension.
Thus, by all measures, Fe::tieners' appeal is moet.
Petitioners fare no better with their claim that until a
such tir+ as Petitioners exhaust their right to a hearing, TUEC
.Tay not isgally continue to engage in construction, testing and cperatiensi activities with respect to Unit 2."
(Motion at 2.)
C:mm;sti:n regulations as well as the Administrative Procedure A :, clearly provide that upon timely application for an ex: ens;:n of a license, including a construction permit 10/,
"the e: isting license will not be deemed to have expired until the applicatien has been finally determined."
10 C.F.R. 5 2.109; 5 U.S.C. 5 558.
Thus, a party seeking an extension of a 1/
FCC case law is particularly relevant because "the Federal communications Act served as the model for the 1954 Atomic Energy.Act Vircinia Electric & Power Co.
fNorth Anna Power Station, Unit 2), CLI-80-29, 12 NRC 137, 144 n.7 (1980).
- l
.0 c.F.R.
S 2.4 provides that a " license means a licence, tncluding a renewed license, or construction permit issued by the Cc= mission."
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. censtruction permit is entitled to continue construction during the pendency of its applicatien.
On February 3,1992, TU Electric submitted a timely a;;1ication for a three-year extension of the latest completion da:e under the CPSES Unit 2 construction permit. 11)
In accordance with 10 C.F.R. 5 2.109 and 5 U.S.C.
5 558, TU Electric was authorized to continue construction of Unit 2.
In short, Fe:itioners' argument that all construction was required to be halted during the pendency of their appeal is simply wrong.
2.
Petitioners Have Failed To Demonstrate That The Licensing Board's Order Is Erroneous In Anv Re_srect The substantive issue presented by the Petitioners' M::icn is a very narrow one.
Petitioners must convincingly demens: rate that there is virtually no doubt that the Licensing Icard's Order rejecting their intervention petition will be recers=d.
Pe:itioners have clearly failed ec make such a shcw:ng.
As TU Electric demonstrated in its brief opposing Fet;;ieners' appeal, the Licensing Board's Order faithfully adhered to the legal standards prescribed by the Ccmmission. 12/
The Beard carefully considered the bases 11/
TXX-92041, letter from William J. Cahill, Jr. (TU Electric) to NPO, dated Feb. 3, 1992.
F=<
"TU Electric's Brief in Opposition To Petitioners'
,m.
Appeal Of Atomic Safety And Licensing Board Memorandum And Order," Jan. 19, 1993.
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. i offered by Petitioners, and correctly concluded that Petitioners failed to meet the requirements of 10 C.F.R. 5 2.714, thus mandsting that their contention be rejected and their petition to intervene be denied.
Nothing Petitioners have offered in their Motion-deronstrates that the Licensing Board abused its discretion in reje: ing Petitioners' proposed contention.
Throughout their M:::en, as they had done in their Appeal Brief, Petitioners rake i
conclustry and unsubstantiated assertions without discussion, analysis, or citation to any legal authority.
Further, the su's:ar.::ve grounds offered in support of their Motion fail to e
even address let sicne discuss the Licensing Scard's Order, or tr.e :ssue of good cause for the CPSES Unit 2 construction dels;, 11 t
Fetitioners' Motion simply fails to make any showing ths: the Licensing Board's decision was erroneous in any respect.
A :crdingly, Fetitioners have not met their burden of derenstriting any likelihood of success on the merits and their M0:icn should therefore be denied.
r 11/
For example, Fetitioners " incorporate by reference, the hriefs Fetitioners have filed with the Commission," as the role basis of their claim that they "are likely to obtain a hearing on whether TUEC has good cause for the delay in cens:ructicn."
(Motion at 2.)
Other than this reference, ietitioners wholly fail to address the merits of the Licensing Board order.
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3.
The "New" Material Proffered By Petitioners Is Not Relevant To The Merits Of The Constructio_n__ Permit Extensi_on_ For Unit 2 Petitioners claim that TU Electric, through the use of settlement agreements, has somehow forced individuals with safety concerns to remain silent.
However, none of the material previded by Petitioners in support of this allegation relates to
+
the extensicn of the construction perndt for Unit 2, and therefere does not provide any basis for a claim of likeliheed of success en the merits.
For example, Petitioners reassert the allegatien that settlement agreements entered into between TU Electric and CPSES former minority owners led to the
- secreting
- of informatien from the NRC.
The Commission found a
{
l simi;sr allegation to be unsubstantiated when it denied Fetiticners' attempt to stay issuance of the Unit 2 10w power cp+ rating license, CLI-93-02 at 4, and Petitioners have not previdad any evidence that inferration has been " secreted" from ths ::RC. li/
In any event, these allegations were also i
previca:1y addressed by the Licensing Board which determined that 1Ai
- n fact, all three of the former mincrity owners have infermed the PRC that their employees and representatives have been advised that they are in no way prohibited by the terms of the agroements frem communicating safety concerns t o th e NF r..
See letter, E.L. Wagoner (TMPA) to T.E. Murley 0;RC ) d&ted Feb. 9, 1993; letter, R.E. McCaskill (Brazos) te T.E. Murley (NRC) dated Feb. 10, 1993; letter, J.H. Butts (Tex-La) to T.E. Murley (NRC) dated Feb. 10, 1993.
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. the agreements were not relevant to the construction permit extensien for CPSES Unit 2. LBP-92-37, slip op at 20-22 11/
Petitioners also claim that the statement of Ron Jones, a former CA inspector at the CPSES site, contains allegations 1
that demonstrate "how the secreting of safety information has and will conttnue to directly impact on the safe operation of the CPSEE."
(Motion at 6.)
As a preliminary matter, Mr. Jones has not been employed at the CPSES site for nearly a decade.
M;re:cer, the Jcnes statement deals almost entirely with cilega:::ns of safety problams occurring in the mid-1980s during r
1 11 Fetittoners also assert that settlement agreements between TU Electric and a number of former whistleblowers, including
.:n !cnes, resulted in the " secreting
- of safety information fre. the NRC.
The Licensing Board also found those se::lenent cPreements to be irrelevant to the construction p e r..1: extension for Unit 2.
LBP-92-37, slip op, at 22-23 and 26-27 In any event, Petitioners are wrong in the rerits of their claims.
Ren Jones was a member of a group t
cf former CPSES workers known as the "Atchicon plcintiffs,"
who settled with TU Electric after filing an action in the Texas state courts.
The NRC found that:
i the [NRC) Office of General Counsel reviewed all l
Of the releases signed by the Atchisen plaintiffs j
in se lement of their lawsuit... [and) indicated i
that none of these settlement agreements and releases involve [d] restrictive clauses.
In addition, the Atchison plaintiffs were informed by their counsel of their continuing ability to bring l
their safety concerns to the NRC.
j Le::er from James E.
Lyons (NRC) to Betty Brink (Citizens for Tatr Uttlity Regulation) dated Jan. 30, 1990 thereinafter Lyons letter), attachment at 12.
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o_n a u t t construction of CPSES Unit 1 11/
The statement is therefore irrelevant to Unit 2 in general, and to the extension of the Unit 2 construction permit in particular.
Mr. Jones' statement also ignores the fact that Unit i underwent a rassive corrective a::icn program that included a comprehensive hardware validation program to identify and correct the type of nonconformances alleged by Mr. Jones.
Fu:thermore, the Jones statement is only narginally understandable.
TU Electric assumes that the " events in 1992
.Tre cun:cd by Mr. Jones) which almost resulted in a serious at:-den:" (M::icn at 5), refers to the CPSES spent fuel pool c::1;ng incident which was :he subject of a 1992 enforcement 3::::n After a special inspection, the NRC concluded that the ancident was the result of human error (not wiring defects or v5;ve ralfuncticns as claimed by the Petiticners) and at no time was plan: safety or the public health ever threatened. 11/
Hence, the assertion that this incident resulted from wiring I
16 Mr. Jones states that he wrote "over 300" nonconfornance
~~
repcrts.
However, as he admits, these reports only addressed conditions at CPSES Unit 1.
2/
g Tex a s U:ili_t_i e s El ect ri c Co. (Comanche Peak Steam Electr:c Station, Units 1 and 2), DD-92-06, slip op, t
Un:v. 19, 1992) pp. 15-18; Letter from James Milhoan UUU:)
to
..J.
Cahill, Jr. (TU Electric) dated July 23, 1992 (notifying TU Electric of violation and proposed imposition of civil penalty); Letter frem A. Bill Breach (NRC) to
- .J.
Cahill, Jr. (TU Electric) dated June 9, 1992
.: scussing inspection reptrts 50-445/92-20; 50-446/92-20).
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p,ggjgj
- 17 defects discovered by Mr. Jcnes almost a decade ago is simply Wrong.
Finally, Mr. Jones claims that because of the 1988 settlement agreement between TU Electric and the group Cititens Associatien For Safe Energy (CASE) he was somehow precluded from testtfying before the NRC.
As a result, Petitioners assert athat TUEC has canaged to secret through the payment of hush money signtficant safety-related informatien."
(Motion at 0.)
Ecwe>er, the CASE settlement agreement was reviewed, approved, and made pub 11: by the Licensing Board; there was nothing
- secret" about this agreement at all.
In any event, the CASE settlenent agreement is not relevant to the construction permit extsnsicn for " nit 2.
In conclusion, nothing Petitioners have provided to the Ctrn;ssion in their Motion addresses the merits of the Licensing 5:ard Order, ner demonstrates in any way that Petitioners have a substan:isi likelihood, let alone a virtual certainty, of sutt+eding en the merits.
Consequently, the Cc= mission chould dis =tss Pet tioners' Motion To Stay, and affirm the Licensing 5 card's re erber 15, 1992 Order on the merits. 18/
11/
In their Mction, Petitioners continue their practice of raking unfounded and reckless allegations of willful and t11egal misconduct by TU Electric and its counsel.
jd1 Metion at 3-4, 4 n.3 and n.4, 8, 10-11.
Those kinds of allegations are plainly improper and have no place in pleadings filed with this Commission.
Sge Northern Indiaca
_P R i i c S e r v i c e____C_o. (Bailly Generating Station, Nuclear-1, ALAE-204, 7 AEC 835 (1974); Wi s c on s i n___El e c t r i e P owe r __C o_._
(continued...)
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TU Electric And Its Customers Will Suffer Subs _tantial Economic __Mam_If____The_ St&Y Ts Granted Under the third prerequisite for a stay, the Commission P
must consider the " harm" to opposing parties if a stay is granted. 19/
In doing so, the Commission may consider the potential econcmic harm to an applicant caused by a stay of the applicant's operating license.
Ehil_a delphia_El ec_t ri c _ _Co.
(Limerick Generating Station, Units 1 and 2), ALAB-808, 21 NRC
_o.s-C.,.
Should this Court stay the issuance of a full power Operating license for CPSES Unit 2, TU Electric and its customers w;_. cleirly incur substantici economic harm.
Until the plant is
^
placed _n ec.mmercici operatien, the costs of the plant continue
- te cap::al :ed (i. e., they are not included in TU Electric's
- s:s f;r the purpose of calculating its rates).
The costs associated with Unit 2 include carrying costs and direct cpe:::ing ecsts (i.e.,
items such es insurance, ad valorem taxes and c:her administrative and general expenses).
These costs amoun: to milliens of dollars each month.
~~15.(... continued)
(P0 int Beach Nuclear Plant, Units 1 and 2), LBP-82-5A, 15 NEC 216 (1962).
12,.
- f, however, the movant fails to meet its burden en the first two factors, it is unnecessary for the Commissien to
" dwell long en whether a stay would cause serious injury to the applitant" or to " delve deeply into public interest e e n s a d o r s : i c r.s. "
CarAwhs, ALAB-794, 20 NRC at 1635.
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,,,, o i Thus, the cost to TU Electric and its customers frem a delay n a full power operating license for CPSES Unit 2 is substantial.
It is therefore clear that this hardship to TU Ilectric and its customers overwhelms any speculative injury to Fet:tieners.
Consequently, the Commission should deny Petitieners' metien for a stay.
D.
The Denial of A Stay For CPSES Unit 2 Is Clearly In The Public Inter _es_t i
Petitioners have also failed to demonstrate that a stay i
l cf the Ccmmissien's authority to issue a full power operating i
1;:ense is in the public interest.
The public has a compelling interest in the prompt I
geners:::r of pcwer by CPSES Unit 2.
Each day of additional dels
- n the :ssuance of a full power operating license for CPSES
ni:
ptstpones the fu'1 power operation of CPSES Unit 2 and the j
i rel;1bil;ty benefits it would provide.
It would therefore turn the put"ic interest on its head to pestpcne the availability of a r:wer resource like CPSES Unit 2, when Petitioners have made no ser:cus showing of any likelihood of success on the merits or irreperchie injury.
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, I CONCLUS_ ION For the reasons discussed above, Petitioners' motion for a stay should be denied.
Respectfully submitted, l
M e.. h.e _r _s..
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-v Georgo L.
Edgar
('
I heter: A. Wooldridge Thomas A. Schmutz Wor = hem, Forsythe, Sampels Steven P. Frantz
& Wocldridge 1615 L Street, N.W.
Suite ;200 Suite 1000 2:01 'ryan Tower Washington, D.C.
20036 f
Ca;;as, Texas 75201 (202) 955-6600 Actorneys for TEXAS UTILITIES ELECTRIC COMPANY 1
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