ML20106D888

Opposition of Util to Motion for Extension of Time to File Brief by SL Dow Doing Business as Disposbale Workers of Plant & RM Dow.* Request for Extension of Time & to Become Party to Proceeding Should Be Rejected.W/Certificate of Svc

ML20106D888
Person / Time
Site:	Comanche Peak
Issue date:	10/08/1992
From:	Edgar G NEWMAN & HOLTZINGER, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#492-13264 92-668-01-CPA, 92-668-1-CPA, CPA, NUDOCS 9210160033
Download: ML20106D888 (10)

Text

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UNITED STATES <OF AMERICA t NUCLEAR REGULATORY COMMISSION '92 OCT -8 P4 :10  ;

ATONIC SAFETY AND LICENSING BOARD .,;n, - -

.,c v sa,s  ;

Before Administrative Judges ]

I Norton B. Margulies, Chairman '

Dr. James E. Carpenter Dr. Peter S.-Lam In the Matter of  : -Iocket No.-50-446-CPA [

Texas Utilities ElectriJ ASLBP No. 92-668-01-CPA  ;

Company  : i

(Construction Permit 4

Amendment *,

s (Comanche Peak Steam Electric  : .

Station, Unit 2)  : October 8, 1992 1 q

OPPOSITION'OF TU ELECTRIC TO  !

MOTIUN FOR EXTENSION OF TIME TO. FILE BRIEF j BY SANDRA LONG DON.dba DISPOSABLE.NORKERS i OF COMANCHE PEAK. STEAM. ELECTRIC STATION _AND R. MICKY DON ]

Introduction _ j 3

On. July 28, 1992, Sandra Long Dow and R.- Micky Dow .

filed a motion to' intervene and request for a- hearing it. this r o

docket claiming that the-construction permit-extension sought byJ '

TU Electric should not.be granted, The Dows'~ request failed to- "

establish standing or any legally. cognizable basis for granting; their motion. On September 11, 1992, the~ Atomic; Safety and  :

~ Licensing Board -("ASLB") . accorded the Dows' the opportunity-: to - l cure their deficient' motion by filing an amendment on or before  ;

October.5,-1992. -

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t Rather than adhere to that schedule, on October 5, 1992, th( Dows' filed a motion requesting the ASLB to extend the time for 'iling an amendment on the ground that on September 3, >

1992, ... 8. icky Dow had been arrested on unspecified criminal  ;

charges and placed in jail in Colorado -for a period of time in '

excess of thirty days. The Dows' motion goes on to make the incredible assertion that Mr. Dow's arrest was the result of l improper actions taken by the federal government and TU Electric to " prevent [Mr. Dow) from making a timely filing". 1/ The Dows' motion also implies that Region IV of the NRC somehow caused Mr. Dow's computer and workpapers to be confiscated in Colorado, removed to the State of Kansas "and secreted there" again in order to preclude Mr. Dow from making a timely filing.

The Dows' motion must be rejected. It is simply inconceivable that any federal agency or any court would' find ,

good cause for a time extension based on the bald assertion that -

the moving party was arrested on-criminal charges and placed.in jail. 2/ It is similarly inconceivable that any agency or court would tolerate much less credit as good cause the Dows' 1/ The Dows' motion, p.2, states that "the suspect conditions-of the Dow apprehension are clearly indicative of interference by both the utility and agencies of the United States Government."

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2/ Mr.'Dow's criminal activities are well documented. Mr. Dow was previously convicted of felonies in the State of Texas.

He subsequently-fled the state in' order to avoid additional pending criminal' charges. .There are outstanding warrants-  ;

for his arrest in the State of Texas. Sag "TU Electric's Answer to the Petition for Intervention and Request.for  ;

Hearings by the Dows" (Aug. 14, 1992). <

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reckless and irresponsible allegations of improper conduct on the part of TU Electric, the NRC, or the federal government.

Apart from the fact that the Dows' motion fails to estanlish good cause, there is an additional ground for lenying the Dows' request. Nothing in the Dow's motion suggests that Sandra Long Dow was somehc w incapable of filing an amendment to

. d hearing regreat as required by the the Dows' intervention Board's September 11, 1992 order.

At the time the Dows' filed their intervention motion, they jointly asserted that they had somt ;ecified bases for their intervention and hearing request. It that assertion is to be believed, Ms. Dow as a moving party is equally responsible for providing those bases in the form of an amendment to the joint

, intervention request as required by t'..e Board order. Nothing in the Dows' motion for a extension of time provides any ground for relieving Ms. Dow of the obligation of complying with the Board's September 11, 1992 order. 1/ The Dows' motion for an extension of time, as well as their intervention request should therefore be denied on that basis as well.

Finally, we would point out that the Dows' reprehensible attack on the integrity of TU Electric and the NRC 1/ The unsubstantiated statement in the Daws' motion that Mr.

Dow's computer and workpapers were confiscated does not relieve Ms. Dow of fulfilling her joint responsibility to comply with the Board's order. Ms. Dow was a joint signatory of the Dows' intervention request and thus must be presumed to know the bases for the assertions made therein.

Egg 10 C.F.R. S 2.708(c).

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is simply one further example at thu Dows' repeated abuse of the process of this Commission. By their actions in this and numerous other proceedings, the Dows have demonstrated that they are incapable of conducting themselves within the bounds of t acceptable behavior. A/ The time has clearly come to call a halt to the Dows' misconduct and their abuse of process. Their request for an extension of time and their request to become a-party to this proceeding should be summarily rejected. 5/

t Respectfully submitted, Robert A. Wooldridge, Esq.

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' org//L.' Edg /_

Worsham, Forsythe, Sample Tho ds A. Sc tz

& Wooldridge Steven P, Frantz 2001 Bryan Tower Newman & Holtzinger, P.C.

.uite 3200 Suite 1000 Jallas, TX 75201 1615 L Street, N.W.

(214) 979-3000 Washington, D.C. 20036 (202) 955-6600 Attorneys for TU Electric October 8, 1992 i

A/ TU Electric has presently pending before the Commission a.

motion reques$ing sanctions against-the Dow's. That motran details the Dows' pattern of misconduct _over the past two years. Sam "TU Electric's Answer to the Petition to Intervene and Motion and Supplemental Motion to Reopen by; Micky Dow and Sandra Long Dow and TU Electric's Request for Admonition of the Dows" (March 16, 1992).

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5/ Most recently, a Department of Labor Administrative-Law t Judge disqualified Micky Dow as a representative of a. party, l finding that he lacked the ri.quisite character and integrity to appear before the-DOL. Ege attached. Order.

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.4 U.O. separtmer.t cf Leber .

attay Ottlee of Administrative Law Judges Heritage Pleas, suite 530  :

111 Patetens Momertal 86vd. S ~

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Metalele, t.A 10005 -

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(S&4)589 4201-CASE N0. 92-ERA-16 '

YVONNE WILKINSON- --

complainant V.

TEXA5 UTILITIES Respondent In Ret Rlchard Emery Dow, Jr. (a.k.a. R. Nickey mow)

ORDER DISQUALIFYING CoMPLAIMANT'S REPRESENT &T1YB a on March-6, 1992, an order-was entered-denying Respondent's motion to disqualify complainant's lay representative. In view of 3 events occurring since that date and other circumstances, including the representative's failure to appear at the ' August 4, 1992 hearing, the court that order pursuant to 29 C.F.R. $ 18.34(g) (2) .ys reconsidered 4 - The privilege of appearing as a lay representative may be -

revoked if the Court finds that Mr. Richard Emery Dow,-3r. (a.k.a.

R. Bickey Dow) d; - not . possess the~ requisite . qualifications- to 1wrr nt others; or is in character or.

inteqsity; ~has engaged inlacking uneth ical or- improper professional conduct; or has engaged in an act involving moral turpitude.

29 C.F.R. - $ 18.34(g) (3) .2 In the present case.-Mr. Dow has repeatedly demonstrated his deficient qualifications in the representation or Ceaplainant, Mrs.-

Yvonne Milkinson. Further, he has abused the. initial consideration -

afforded him by this court on March 6, 1992. As such, the Court finds that Mr. Dow is unqualified to represent Complainant in-this-claim. This decision is.in furtherance of the discussion placed on 1section 18.34(g -

judge nay,--ah any time),(2) states in parts "The administrative-law-inquire as to.the i q of such person to iander-legal assistanos." j 2

The court finds that Er. -Dow had ample notice and opportunity to be heard prior'to the entry of this order.

e sq> en ' 9W& se papeges a gag e

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( the record August 4, 1992, and is additionally supported by the following reasons:

1. Mr. Dow failed to appear at the August 4, 1992 hearing of this matter, thus rendering co 91ainant without effective representation. Such failure to appear impaired the prosecution of Complainant's case and denied her the assistance v*on which she l 1

_ relied. Mr. Dow has refused to appear at.a hearing in Texas, even -i shough both of the parties and the witnesses reside in that state.  !

Aga 01 der Deaying Motion to change the Location of Trial, entered i July 24, 1992.

2. Mr. Dow f ailed to comply with this Court's June 11, 1992 Pre-Trial Order. This order directed Mr. Dow to exchange proposed exhibits and a witness list with Respondent, with a copy to the Court. Mr Dow has asserted that he is in possession of Complainantra primary exhibits.

3. Mr. Dow has repeatedly demonstrated dilatory - tactics in prosecuting this clain, including, but not limited to, the l followings seeking to change the location of the August 4, 1992 hearing two weeks prior to the hearing, after he was notified of th; date, place and time of the hearing by an order entered on June

11. 1992; failing to timely notify the Court of his medical excuse for failing to appear at the March 10, 1992 hearing, instead responding after the issuance of an order to show cause; submitting overly broad discovery requests after failing to appear at - the original March 10, 1992 hearing (maa order Denying Motion to compel and Granting Motion to stay Discovery, issued My 20, 1992); and failure to allow Complainant's deposition due to his alleged inability to attend after this Court ordered him to do so (Ana y .

Dow's letter to Respondent's attorney, dated February, 25, 1992 ).

4. Mr. Dow has exhibited a lack of knowledge regarding the applicable procedure before this Court, including,-but not limited

'- to, the followings several ex parte attempts to communicate with

! the- Court; requests for a - hearing on the_- marits via telephon1b conference - (agg !stter from Judge Jennings to Mr. Dow denying L' request for telephone conference, dated February 10, 1992;: Order Denying Motion for Reconsideration of Order Denying Telephone 1992); an attempted erroneous i Hearing, issued February 21, interlocutory appeal; and the lack of a legal bcsis for changing

• the place of the August 4, 1992 hearing.

l l

3 In his letter, Mr. Dow discussed his interlocutoiy appeal and i other moticas he had filed, "so (he did) not see March 10 as t

remaining a viable hearing date." He also urged Respondent to l settle this claim in that letter.

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5. Mr. Dov's relocation to Canada and several locations in '

Pennsylvania during the pendency of this case has made it difficult for the Court and Respondant to communicate with or to serve him.

6. Mr. Dov's character and integrity have been placed in question by an outstanding warrant for his arrest currently existing in Criminal District Court #1, Tarrant County, Texas, on the charge of felo:.y thef t by check, and an outstanding warrant for his arrest currently existing in the County Court of Erath County, Texas, on the charge of theft $200.00 to $750.00.4 313 Respondent's Request For an Examination of the Qualification of Complainant's Representative, dated February 28, 1992. Mr. Dow has not denied the validity of these warrants.

7. Mr. Dov has engaged in acts involving moral turpitude, as demonstrated by his 1979 felony convictions for thef t by check and breaking and entering of postal vehicles, and his 1978 felony conviction for burglary. 313 Respondent's Request For an Examination of the Qualification of Complainant's Representative, dated February 28, 1992. Mr. Dow has net contested the avidence establishing these convictic ns.

ORDER IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that, based on

' 1992, the discussion p1wed on the record on August 4, the foregoing reasons and the totality of his conduct, Mr. Richard Emery Dow, Jr. (a.k.a. R. Mickey Dov) is hereby disqualified to serva as a lay representative in this case.

It is further ORDERED that Mr. Dov's name is hereby stricken from the service list and no party is obligated to include service to him.

Entered this /Y day of August. 1992, at Metairie, Louisiana.

hAA4) MA YtEt h .

JA$ES W. KERR, JR.' - 'V Administrative Law Judge JWX:jin 4 These warrants may be the actual basis for Mr. Dov's refusal to participate in a trial conducted in Texas.

SERVICE SHEET 3.' Case Name YVDNNE WILKINSON Case No.: 92-ERA-16 Title of Document: ,

ORDkA DIsgUALIFYING COMPLAINANT'S REPRssENTAT!YE '

.. copy of the above document was sent to the followings ,

certified Ngil Ms. Yvonne Wilkinson Deputy Asso, sol, USDoL-506 Mt.-View Estates Div. of Fair Labor Stds.

Granbury, TX 76046 Roon N-2716 200 Constitution Ave.,N.W.

Washington, D.C. 20460-h tified Mail David C. Lonergan, Esq. USNRC Suite J200-2001. Bryan Tower 611 Ryan Plata Drive

-Dallas, Texas 75201 Suite 1000 Arlington, TX 76011 certified Mail i Mr. Richard Emery Dow, Jr.

222-Mall Boulevard suite 147 Monroeville, PA 15146 Rerular Mail L curtis Poer-Mr. Bill Belt, USDoL ESA, Wage & Hour Division Reg..Ada., Wege & Hour 819 Taylor Street, Rn 7A12 SSS-Griffin-Sq., Ra. 800 Ft. Worth, TX 76102 Dallas,-TX 73201 Administrator. ESA Regional Solicitor, USD0L Wage & Hour ViiDOL S25 Griffin St., Su.503 Roon N-271(. Dallas,-TX 75202-200 Constitution Ave.,NW

-Washington, D.C. 20210 fL , D '_

Terri C. DiCarlo Legal Technician Dated: August 19, 1992 U

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- utNitC - 'l UNITED STATES OF' AMERICA.

. NUCLEAR REGULATORY CONKTSSION .' ' DCT -8 P'4 :10 -

bEFORE'THE ATOKIC SAFETY AND LICENSING-BO -

ari g & EECM1M i 1066[ i thG 1 Ilf V!I.!

) N In'the_ Matter of ).

)

TEXAS UTILITIES ELECTRIC ) Docket No. 50-446-CPA  :

COMPANY ) -ASLBP No. 92-668-01-CPA ,

)

~(Comanche Peak Steam Electric ) (Construction Permit Statioa, Unit 2) ) Amendment) <

)

CERTIFICATE OF SERVICE I hereby certify that copies.of OPPOSITION OF TU_ r ELECTRIC TO MOTION FOR EXTENSION OF TIME TO FILE BRIEF BY SANDRA LONG-DOW dba DISPOSABLE WORKERS OF COMANCHE PEAK STEAM ELECTP.IC ,

STATION AND R. MICKY DOW were served upon the following. persons by deposit in the United' States mail _ (except as indicated below) ,

postage prepaid and properly addressed, on the date'shown below: 1 U.S. Nuclear Regulatory Commission Atomic Safety-and Licensing-Board Adjudicatory File Washington,_ D.C. 20555 (Two Copies)

Office of'the Secretary

• U.S.-Nuclear Regulatory Commission.

Washington, D.C. 20555 Attention: Chief, Docketing-and Service Section (Original Plus Two Copies)

Administrative Judge *'

Morton B. Margulies, Chairman Atomic Safety-'and Licensing Board-U.S. Nuclear = Regulatory-Commission Washingten, D.C. 20555

. Administrative Judge

• James H. Carpenter ,

Atomic Safety and Licensing Board U.S. Nuclear. Regulatory Commission Washington, D.C. 20555

• Served by Hand'

~

a _ _ _. . _ . . _ _ _ _. .2 ,__ - .

Administrative Judge

• Peter S.-Lam . _

Atomic. Safety and Licensing Board U.S.-Nuclear Regulatory Commission Washington, D.C. 20555; Janice E. Moore Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Marian L. Zobler Office.of the General Counsel-U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Michael H. Finkelstein Office of the General Counsel U.S. Nuclear Regulatory Conadssion Washington, D.C. 20555 Sandra Long Dow R. Mickey Dow 322 Mall Blvd., #147 Monroeville, PA 15147 Michael D. Kohn Stephen M. Kohn Kohn, Kohn and Colapinto, P.C.

517 Florida Ave., N.W.

Washington, D.C. 20001

' Dated this 8th day of October, 1992.

I

)~ M(- '

David W._Jedkins Newman&HoK) zinger,P.C.

Suite 1000-Washington, D.C. 20036 (202) 955-6642