ML20126A416
| ML20126A416 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 12/15/1992 |
| From: | Carpenter J, Lam P, Margulies M Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#492-13466 92-668-01-CPA, 92-668-1-CPA, CPA, NUDOCS 9212210041 | |
| Download: ML20126A416 (56) | |
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Nb LB P- 9s n2 'J- t.3,2.l' st UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: {'{r g5l}[.y[
Morton B. Margulies, Chairman Dr. James H. Carpenter Dr. Peter S. Lam l BERVED DEC 1 6 19 Docket No. 50-446-CPA In the Matter of ASLBP No. 92-668-01-CPA Texas Utilities-Electric Company (Construction Permit Amendment)
(Comanche Peak Steam Electric Station, Unit 2) December 15, 1992 MEMORANDUM AND ORDER (Rulina On Intervention Petitions and Terminatina Proceedina)
I. INTRODUCTION We have before us for consideration'two joint. petitions for leave to intervene and to hold a hearing in the matter of the February 3, 1992 request by Texas Utilities Electric-Company (Texas Utilities) to amend Construction Permit CPPR-127 for the Comancho Peak Steam Electric Station, Unit 2, by extend.ng the construction completion date from August 1, 1992 to August 1,. 1995. In this Memorandum and Order we decide to deny the petitions and terminate _the proceeding.
9212210041 921215 .
N. V.
'PDR ADOCK 05000446
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The petitions were filed in response to a June 23, 1992 NRC Staff (Staff) " Environmental Assessment and Finding of No Significant Impact" for the requested extension, which was published in the Federal Register on June 29,-1992.
57 Fed. Reg. 28,885. The Commission, on July 28, 1992, granted the amendment on a finding by Staff that-good cause-has been shown f or the delay and that the' amendment involves no significant hazards consideration.'. ~57 Ped. Reg. 34,323 (Aug. 4, 1992). In accordance with Commission practice,-if a hearing is ordered a final decision on the extension will await the outcome of the hearing.
The first joint petition for intervention and hearing, dated July 27, 1992, was filed by B. Irene Orr, D.I. Orr, Joseph J. Macktal, Jr. and S.M.A. Hasan. They filed'a supplement to the petition on October 5, 1992 containing a contention. Texas Utilities and StaffLfiled responses seeking denial of the petition and contending that the Petitioners have failed to provide any supporting basis for-
-the contention. Petitioners filed additional pleadings dated November 15 and 17, 1992 which Texas Utilities and Staff oppose. We rule on1those pleadings in this Memorandum-s and Order.
The other joint petition, dated July :28, 1992, was filed in behalf of Sandra Dow Long, R. Micky Dow and
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Disposable-Workers;of-Comancho Peak Steam Electric Station.
The request for intervention and hearing was opposed by Texas Utilities and Staff in responses dated August 14 and August 18, 1992, respectively.
In response to our order setting October 5, 1992 as the date for filing amended or supplemental petitions, the Dows filed a motion for an extension of time and for a further ,
filing schedule. By Memorandum and Order, dated October 9, -
l-L 1992, (unpublished) we denied the request for lack of a credible reason and good cause. R. Micky Dow filed a motion for rehearing, dated November 10, 1992, which is opposed lby Texas Utilities and Staff. In this Memorandum and Order we i
rule on the motion.
II. THE APPLICATION By letter dated February 3,-1992, as supplemented-on-March 16,-- 1992,--Texas Utilities requests, pursuant to 10-l C.F.R. S 50.55(b), the extension'of the construction i
L completion datelof CPPR-127-from August'1, 1992 to-August 1, I-1995. As good cause justification Texas Utilities states-it -
- was anticipated that-there would be a-one year suspension in-construction beginning in April 1988. The purpose was to allow the permit holder to concentrate its_ resources on lcompletionLof Unit 1. However, Unit 1 was not licensed 1
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until February 1990 and Texas Utilities did not resumo significant design act ivities f or Unit .2 until June 1990.
The delay was nooded to complete construction and'startup of_
i Unit 1.
Texas Ut111 tion also rolled on the NRC's previous e .
finding of good cause for the suuponsion of construction of Unit 2 based on allowing concentration of resourcos for the completion of Unit 1. Staff found good cause for-the extension of the construction permit completion dato to l August 1,-1992 promised on Texas Utilitios' jilatification that suspension of Unit 2 for one year, beginning in April 1988, would allow it timo to make modifications that may be required for Unit 2, based upon knowledge gained from the reinspection and correctivo action proyram appliod to Unit 1. 53 Fod. Reg. 47,888.
III. PETITIONS FOR INTERVEh'rION A. The orr Petition To Intervone
- 1. Requisite Intorost for_ Standing.
Tne Commission's Rules of Practico provide that any person whose interest may be affected by a-proceeding and-who desires to'participato as a party shall file a' written >
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petition for leave to intervono. 10 C.F.R. S 2.714(a)(1). i Section 2.714(a)(2) requires that the petition-set fourth t with particularity the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding, including the reasons it should :
be permitted to intervene.
B. Irena Orr, D.I. Orr, Joseph J. Macktal, Jr. and-S.M.A. liasan each claim the requisito interest for standing to intervene in the proceeding under the provisions of 10 ^.F.R. S 2.714.
The orrs state that they reside at separate locations, within a 50-mile radius of Unit 2, that they eat food i'
produced in an area that would be adversely affected by normal and accidental roloases of radioactive materials from the construction of Unit 2 and that they'came within Texas f Utilities' rate Lase.
Joseph J. Macktal, Jr. states that he is a former employee of the Comancho Peak Steam Electric Station (CPSES)' ;
and.is currently seeking reinstatement of'his job. He asserts that he has been personally harmed due ta management- -
misconduct which has also contributed.to the delay in the ,
construction of Unit 2. Petitioner claims he was to be a -
-direct fact witness in a. construction permit amendment
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l proceeding to extend the completion date for Unit 1._ The l t
proceeding, Docket Ho. 50-4 4 5-C ?A (CPA-1) was settled and i
d'.smissed in July 1988. He asserts that he has information 2
which is relevant to the determination of Texas Utilities' request to extend the Unit 2 completion date.
S.M.A. Hasan, a former engineer employed at the CPSES, ,
states he was to be a fact witness in CPA-1, but because of the payment of hush money by counsel for the utility to the ,
intervenor he wac precluded from testifying. He claims an interest in exposing the alleged management misconduct at !
CPSES which he says resulted in his removal from the CPSES site and directly contributed to the delay in constructing Units 1 and 2. He asserts a financial interest in the granting of the amendment request.
All Petitioners, without further explanation, claim'to be similarly situated as the petitioners.who were permitted to intervene in CPA-1 and request intervenor status on that basis.
Neither Texas Utilities nor Staff contest the.Orrs' claim of having the requisite interett for standing. It is clear that their claim of residing within 50 miles of Unit 2 provides them with the status required for standing.
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The same principles apply to establishing standing for a requested extension of an existing construction permit completion date as do to an application for a new construction permit or operating license. Northern Indiana i Public Service Co. (Bailly Generating Station, Nuclear 1),
ALAB-619, 12 NRC 558, 563-565 (1980). !
In the foregoing type of case a petitioner may base standing on a claim that he or che resides within the geographic zone that might be affected by an accidental rclease of fission products. Houston Lighting and Power Co.
(South Texas Project, Units 1 and 2), LDP- 7 9-10, 9 NRC 439, 443 (1979). Close proximity under those circumstances has ,
been deemed to establish the requisite interest for !
intervention. In such a case, the petitioner need not show that the concerns are well founded in fact. Distances of as ,
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much as 50 miles have been held to fall within the zone.
Virginia Electric-and Power'Co. (North Anna Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979).
The orrs' claim that they are part of Texas Utilities' rate base does not provide them with an additional ground for standing. Economic concerns of this kind are best directed _to_the state regulatory body'that has chargelof rate setting and similar matters. Public Service Co. of New i
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Hampshire (Seabrook Station, Unit 2), CLI-84-6, 19 NRC 975, 978 (1984).
Texas Utilities and Staf f argue that Macktal and liasan do not have the requisite interest for standing on the basis of their assertions that they are former employees who have suffered personal harm caused by management misconduct.
They assert that Petitioners fail to meet the two pronged ;
test uced by the Commincion to establish standing to intervene in NRC proceedings. The test requires a
-t petitioner to show that (1) the action proposed will cause some injury-in-fact to the person seeking to establish standing and (2) that such injury is within the zone of interest protected by the statutes governing tho proceeding. ,
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613 (1976);
Metropolitan Edison company, at al. (Three Mile Island Nuclear Station, Unit 1) , CLI-83-25, 18 NRC 327, 332 (1983).
They also claim that Petitioners failed to show that the injury-in-fact is concrete and particularized, actual or imminent and is likely to be redressed by a favorable decision in the proceeding, citing Lujan v. Defenders of Nildlife, __ U.S. , 112 S.Ct--2130, 2136.(1992).
We agree that Macktal and Hasan have not demonstrated that they have the requisite interestffor standing. Not
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having shown that they reside or work within close proximity ,
i to the plant they cannot claim, as the orra have !
successfully done, that they are presumed to have the ;
requisite intercut for standing. Under these circumstances a licensing board will apply judicial concepts of standing.
Pebblo Springs, supra. A petitioner should allege in an NRC I
proceeding an injury-in-fact that is within the zone of interest protected by the Atomic Energy Act of 1956, as i
amended (AEA), or the National Environmental Policy Act of :
1969, as amended (NEPA). This, Petitioners have failed to do.
The claim of personal injury that allegedly resulted from mismanagement was-not shown to result from the proposed extension of the construction permit completion date.
Neither was it established that the alleged injury was protected against under the AEA or NEPA. Petitioners' grievances are in the area of employment rights and would-not be redressed by a decision favorable to them on'the issue of the extension of the construction date. A desire ,
to expose the alleged. mismanagement is not an injury-in-fact and does not enhance their position for standing.
Similarly,-Petitioners
- claim that they were denied.the ,
right to appear as witnesses in another proceeding to extend the construction completion date of Unit 1 does nothing to
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4 provide the requisite interest for-standing in this proceeding. Were Petitioners to prevail in the subject proceeding, it would not redress any alleged harm that was ,
said to result from denying the Petitioners' right to 1
testify in the Unit 1 proceeding. Lujan v. Defenders of ;
wildlife, supra; Delluno v. NRC, 863 F.2d 968, 971 (D.C.
Cir. 1988).
j Hasan's claim of a financial interest in the application proceeding does not confer standing under the aegis of the AEA and in the absence of an environmental connection, as here, under !! EPA. Houston Lighting & Power Co. (Allons Creek fluclear Generating Station, Unit 1), ALAB-582, 11 !!RC 239, 242 (1980). .
L tio factual or legal justification was provided to grant Petitioners' standing request on the unsupported claim that they were si.ilarly situated as the petitioners who were-
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permitted to intervene in the Unit 1 extension proceeding.
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L We find that Macktal and liasan have not demonstrated t
I that they have the requisite interest for standing, as i
provided in 10 C.F.R. S 2.714, and that their petition for' I
L intervention and to_ hold a hearing should be denied.
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- 2. Aspects.
t The 11RC's Rules of Practice provide that It petition for l leave to intervene should set forth the specif2c aspect or aspects of the subject matter of the proceedirig as to which petitioner wishes to intervene. 10 C.F.R. S 2.714(a)(2). ,
Texas Utilities and Staff in their responses to the Orr petition asserted that Petitioners were not entitled to a ;
hearing because they had not addressed the aspect requirements of the regulations.
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, The issue has been rendered moot by the filing by the Orrs of a supplement to the petition to intervene which ,
contains a contention they propose to litigate. The contention sets forth with particularity aspects of the subject matter of the proceeding as to which Petitioners seek to intervene. Their pleadings are not now deficient in that respect. The Orrs have met the aspect requirement of 10 C.F.R. S 2.714(a)(2).
- 3. The Orrs' Contention,
- a. Standards For Contentions In Construction Permit Extension Proceedings. .
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All contentions must meet the requirements of 10 C.F.R. S 2. 714 (b) ( 2 ) , amended August 11, 1989, which provides:
(2) Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide the following information with respect to each contention: l l
(1) A brief explanation of the bases of the contention. !
(ii) A concise statement of the alleged facts or export opinion which support the contention and on which the petitioner intends to rely in proving-the contention at the hearing, together with references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts t or expert opinion.
(iii) Sufficient information . . . to show that a genuine dispute exists with the applicant on a material issue of law or fact. This-showing must include refe.~ences to the specific portions-of the 'pplication . . . .that the petitioner disputes and the supporting reasons for each dispute. . .
Further, 10 C . F . R . - S 2 . 714 ( d ) provides that-contentions shall not be admitted (1) if the contention and supporting material f ail to meet the requirements of section 2.714 (b), _
or (ii) should the contention be proven it would be of no consequence in the proceeding because it would not entitle '
-petitioner ~to relief.
d
In its comments on the amendments to section 2.714 the Commission explained that 2.714 (b) (2) does not call upon the petitioner to make its case at this stage of the proceeding, i The petitioner in required to read the portinent portion of l the license application and to state the applicant's position and its opposing view. 54 Fed. Reg. 33,170 (1989).
The commission cited with approval connecticut Bankers Ass'n v.-Board of Governors, 627 F.2d, 245', 251 (1980), wherein "a protestant does not become entitled the court stated that to an evidentiary hearing merely on request or on a bald or conclusory allegation that such a dispute exists. The j protestant must make a minimal showing that facts are in .
dispute thereby demonstrating that an ' inquiry in depth' is appropriate." f L
The Commission looks to petitioners to speciC1cally fulfill the requirements of 10 C.F.R. 2.714(b)(2). A licensing board cannot-infer a basis for a contention.
Arizona Public Service Co. , et al. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), CLI-91-12, 34 NRC 149, 155 (1991).
. The scope of a construction. permit extension proceeding is limited tol direct challengesjto.the permit holder's '
asserted reasons that show' good cause justification for-the
. delay. Texas Utilities Co.,-et al. (Comancho Peak' Steam. ,
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Electric Station, Unit 1), A LAD- 8 68 , 25 NRC 912, 935 (1987).
A petitioner may challenge a request for a permit extension by seeking to prove, on balance, delay was caused by circumstances that do not constitute good cause. Nashington Public Power Support System (HPPSS Nuclear Project, Nos. 1 and 2), CLI-82-29, 16 NRC 1221, 1229 (1982).
The need to evaluate and correct safety deficiencies can be good cause for delay in construction completion even-when those deficiencies resulted from deliberate corporate wrongdoing. If there was a corporate policy of violating-NRC requirements and that policy was discarded and repudiated-by the permit holder, any delays from the need to take corrective action would be delays for good cause.
Texas Utilities Electric Co., et al. (Comancho Peak Steam Electric Station, Unit 1), CL1-86-15, 24 NRC 397, 402-403 (1986).
- b. The Contention Petitioners submitted the following contention:
The delay of construction of Unit 2 was caused by Applicant's intentional conduct, which had no valid purpose and was the result'of corporate-policies which have not been discarded or repudiated by Applicant.
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As bases for the contention,-Petitioners contend that a significant safety hazard exists where an applicant has employed and continues to employ corporate policies aimed at constructing a nuclear power plant in violation of HRC requirements and, as a result of these corporate-policies, significant and substantial construction delays occurred and continue to occur. They further contend that the applicant has not repudiated or disregarded the corporate policios ;
i responsible for this delay. As a result they allege Texas Utilities is unable to demonstrate good cause for the delay and the amendment must be denied.
In support of the contention Petitioners allege that- ,
the facts contained in CPA-1, the 1988 proceeding in which .
Texas Utilities sought to extend the construction completion r
date for Unit 1 to August 1, 1988, demonstrate that a fac*ual dispute exists as to whether Texas. Utilities had a corporate policy'to violate HRC requirementsIthat had no -
valid purpose and resulted in'a' delay in the. construction of Unit 2. They further allege that CPA-1 demonstrates a factual dispute as to whether the-corporate policy had not been discarded or repudiated.
Petitioners contend thatLTexas Utilities-misled the licensing board in CPA-1 about critical facts in an effort
~to conceal its ongoing corporate policy of construction-in u_ .___~2___._.-__ _ -
t violation of URC requirements. These were said to include the use of restrictive settlement agreements, the payment of hush money, the use of incorrect construction standards and improper design certification methods.
Petitioners further contend that Texas Utilities continues to receive Noticos ot violation and civil fines which demonstrate it employs the same corporate policies which originally resulted in construction delays.
In response Texas Utilities asserts that Petitioners have failed to allege even a single fact in support of their contention that Unit 2 was delayed due to improper and P
intentional conduct. It claims that Petitioners' supplomont consists of nothing more than a discussion of disparate-events occurring over the past ten years-that have nothing to do with Texas' Utilities' construction permit extension request. Texas Utilities states that the matters raised by Petitioners were previously brought to the attention of the commission and satisfactorily resolved prier to the issuance of the operating license for Unit 1. _Also, the construction permit completion date for Unit 2 was already extended by the NRC in November 1988 to August 1, 1992 on good cause
_ justification for the delay that_resulted from reinspection:
and corrective _ action programs ht Unit 1, which were to be applied to Unit 2. It requests that Potitioners' petition
t to intervene should be denied because they failed to r establish a basis for a contention as required by 10 C.F.R.
S 2.714.
Staff contends that the contention is not admissible because it does not address the issue in the proceeding, i.e., whether it was appropriate for Texas Utilities to have delayed significant construction activities at Unit 2 from 1988 to. January 1991, when it resumed significant construction activities. It states that Petitioners fail to explain how the alleged corporate policies, which may or may not have caused the delay in the construction of Unit 1 in 1986, caused Texas-Utilities to inappropriately defer the-resumption of.significant construction activities at Unit 2 ,
for more than two years from 1988 until 1991. Staff assarts that the contention is not relevant to any matter in the proceeding.
Staff further contends that in support-of their .
contention Petitioners chiefly rely on-legal pleadings' filed in either the-operating license proceeding for Units 1 and'2 or CPA-1 without explaining how any of'these pleadings, even if true, caused Texas Utilities to inappropriately. delay-
-significant construction activities at Unit 2. Staff claims
,that the events Petitioner alleges to have occurred since the CPA-1-proceedingiwas terminated are unsupported. It
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concludos that Petitioners have failed to domonstrato that a !
genuino disputo of material facto exicto making Petitionoro' s contention inadmissible.
Petitioners rely on the record in CPA-1, a proconding to hear Texas Utilities' request of January 29, 1986 to ;
extend the conutruction completion dato of CPPR-126 for ;
Unit 1 to Auguct 1, 1988. Intervonor in that proceeding j I
nubmitted a contention upon which the subject contention was-modeled. The proceeding ';as conuidored along with the operating licence applications for Unit 1 and its companion Unit 2. Docket tio. 50-445-OL and Docket flo. 50-446-OL.
The applications for operating liconaos for Unita 1 and 2 woro filed in 1976. By 1983, tho only contention ;
remaining for litigation in the operating licenso proccoding challenged the quality accurance and quality control accociated with the construction of the Units 1 and 2.
During the course of the proceeding the licensing board found that the applicant had not demonstrated the existance of a system that promptly correcto design deficiencies and had not explained coveral design questions raised by tho' intervonor It cuggested the need for an indopondent design.
review and requfred the applicants-to file a plan that might-I help to resolve the Board's doubts. Toxas Utilitios Generacing Company, et al. (Comanche Peak Steam Electric ,
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Station, Units 1 and 2), LBP-83-81, 18 URC 1410 (1983). ,
Applicants took various actions to address the concerns that had been raised. Subsequently, Applicants,-Staff and the f intervenor entered into an agreement in June 1988 to settle i
and dismiss the operating license proceeding and the i application proceeding to extend the construction completion ,
date for Unit 1. The licensing board concluded that as-a result of the settlement it knew of no matters in l L
controversy. LBP-88-18A, 28 NRC 101 (1988). It then dismissed the proceeding on July 13, 1988. LBP-88-18B, 28 NRC 103 (1988).
Petitioners would incorporate by reference into this proceeding the record from the operating license applications and construction permit extension proceedings.
The record runs into many thousands of pages. They also
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reference two pleadings containing more than 200 pages.
Based on that record Petitioners would have us find that Texas Utilities had not repudiated, prior to the time the proceedings were settled, its corpora *te policy of violating ;
l NRC regulations which resulted in delays in'the construction i
of CPSES.
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-This we cannot do. Commission practice isiclear that a-
- petitioner may not simply incorporate massive. documents far reference as the basis for its contention. Petitioners are-
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i expected to clearly identify the matters on which they intend to rely with reference to a specific point. Tu do otherwise does not serve the purposes of a pleading. Public .
t Sorvice Company of New Hampshire r et al. (Seabrooh Station, ,
Units 1 and 2) 29 MRC 234, 240, 241 (1989). This rcquirement is incorocrated in 10 C.F.R. 2. 714 (b) (2 ) (ii) which Petitioners fail to meet with their request. :
Petitioners also allege that the following raise an issue _as to whether Texas Utility maintains a corporate policy of violating NRC regulations that caused the delay in-the construction of Unit 2.
(1) Restrictive settlement agreemeots.
Petitioners assert that Texas Utilities has not repudiated its policy of entering into restrictive-settlement agreements-with_former minority owners of CPSES in order to keep relevant information from the licensing board in CPA-1 and the NRC. Brazos Electric Power i
Cooperative, Inc._(Brazos), a minority owner in CPSES, had 4 contended in an August 14, 1987 pleading in CPA-1 that Texas Utilities was responsible for failing to disclose material ,
information and making misrepresentations to Brazos_that may-have delayed construction of-Unit 1. Brazos asserted it was a continuing practice of the_ permit holder. Petitioners u . . _ . _ . . _ _ _ 3. . . . _ . _ . . _ _.-. . _ . . ~ , . . _ . . . . . _ . _ _ . _ . _ _ _ - _ . - ..
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t assert that subsequently Texas Utilities and minority owners Brazos, Texas Municipal Power Agency and Tex-La Electric l Cooperative of Texas entered into settlement agreements whereby Texan Utilities purchased the interest of the ;
minority owners who in turn agreed to drop their litigation i and not to assist or cooperate with third parties in all ,
proceedings related to the licensing of Comanche Peak or permit their employees, attorneys and consultants from doing so. The agreements were signed in July 1988, February 1988 and March 1989, respectively. ,
4 We cannot discern from Petitioners' presentation how the entry of Texas Utilities into nondisclosure agreements resulted in delay in the construction of CPSES. The allegation was made but it is unsupported.
Moreover,.even.if Petitioners had alleged facts indicating intentional violations of NRC requirements us the root cause of the deficiencies requiring correction, it would not be sufficient to defeat the extension if the policy was discarded and repudiated by the permit holder and the delays occurred because of the nced to correct the F safety problems. _
Texas Utilities Electric Co. et al.
-(Comanche-Peak Steam Electric Station, Unit 1), CLI-86-15, i
n 24 NRC 397,;401-404 (1986). For a petitioner.to plead an admissible contention in-a construction permit extension
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proceeding it is necessary to directly challenge the-permit holder's asserted reasons that show good causo justification ,
tot tho delay. Texas Utilities Electric Co,, et als
. .t (Comancho Peak Steam Electric Station, Unit 1), A LAB-8 68 , 25 NRC 912, 935 (1987). I Petitioners at no time directly challenge Texas i Utilities good causo justification for the delay in
, constructing Unit 2, i . e., applying safety modifications to i Unit 2 based upon the reinspection and corrective action ,
program applied to Unit 1. They do nct prosent any supporting matorial to show that on balanco the restrictivo agrooments were the cause of the delay at Unit 2 and not the roanons given by Texas Utilition in the application. Not only is this inconsistent with the law on contention requirements in a construction permit extension proceeding it is contrary to the requirements of 10 C.F.R. .
2.714 (b) (2) (iii) . 'It requires petitioners to include references to the specific portions of the application that they dispute and the supporting reason.for each disputo.
Petitioners allege that restrictive settlement agreements entered into with alleged whistleblowers establir.hed a practice of: concealing-evidence directly bearing on the issues to'be litigated-in the operating license and CPA-1 proceedings -
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They claim the agreements demonstrato that Texas Utilities has not repudiated its corporate policy which resulted in construction delay. Agreements wore entered into between Joseph J. Machtal, Jr. and the contractor of CPSES (Brown and Root, Inc.) in January 1987 and between Lorenzo Polizzi and the architectural engineer for CPSES (Gibbo and 11111, Inc.) in June 1988.
The individuals in settling employment claims with the contractors agreed not to voluntarily testify or otherwise participato in any proceeding or investigation involving CPSES. The Polizzi agreement permitted him to inform the NRC of safety concerns relating to CPSES. Texas Utilitios argues that it was not a party to either agroomont and that the individuals were informed in 1989 that the restrictivo clauses would not be enforced.
The pleading is similarly: deficient as that relating to the nondisclosure agreements entered into with minority owners. The claim that the settlement agreements resulted in construction delay is unsupported. Contrary to the requirements of 2.714 (b) (2) (iii) Petitioners ignored and failed to challenge the reasons.given by Texas Utilities for.
the delay of construction at-Unit 2,-which-is critical-for'a -
contention opposing a construction permit extension.
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(2) Pattern of' continuing violations. [
Petitioners allege that the operating licenso and CPA-1.
proceedings demonstrated a corporato policy of Texas Utilitios that resulted in a breakdown in the quality assurance (QA) and quality control (QC) programs employed by CPSES which delayed construction. They contend that Texas ,
Utilition continues to receivo numerous Noticos of Violation and civil penalties which shows it continues to employ-the same corporato policios which originally resulted in -tdie delay of construction. In support Petitioners presented a ;
printout of the Noticos of Violation and penalties received since the settlement of the former proceedings.
-i Petitioners specifically called our attention to the six notices that are said to have occurred related to QA and QC breakdowns. They were identified as occurring on May 17, 1990; August 3, 1990; February 21, 1991; March 29, 1991; April 1, 1991 and March 31, 1992. Petitioners assert that the Noticos of Violation demonstrate that Texas Utilities has not abandoned its post corporate policy which resulted in delay.
Texas Utilities states that it has taken-corrective and proventative actions for each of the six violations and-the-NRC has closed all but the most recent violation. It l
l
.._..._..___-_,.._-.._--._,._.c_._,,...,._._.,...._.,2,_.,.-.:,._....__,,,.
,-,-- - . - - ., . ~ . .
disclaims _that the violations provido a basis for a contention that thoro is a curront-or ongoing corporato policy of violating flRC regulations. j l
We do not believe that which Petitioners have presented supports a claim of a pattern of violations that demonstrato ,
a policy to violate NRC regulations. Inovitably, there will be some construction-defects tied to quality assuranco lapsos in any project approaching in magnitudo and complexity, the erection of a nuclear power plant. Union Electric company (Callaway Plant, Unit 1), ALAB-740, 18-NRC 343, 346 (1982). No information was provided to show that-anything more was involved here. Furthermore, Petitioners-have not shown how the violations woro the cause of the delay at Unit 2 rather than as justified by Texas Utilities, c
(3) Alleged misleading of licensing board in operating, licenso and CPA-1 proceedings.to conceal corporato policy of violating NRC regulations.
Petitioners allogo that Texas Utilities misled the
-licensing board in July 1988 about the root causes of' design
'.cfocts incorporated in the design of CPSES, which required a complete rodosign oflthe CPSES pipe support system, tnorebyidolaying construction.
26 -
(i) " Hush money" settlement agreements.
Petitioners allege that Texas Utilities arranged to have whistleblowers paid money in exchange for agreeing not to bring safety concerns to the NRC and denied such activity at the prehearing conference on July 13, 1988, which resulted in the termination of the proceedings. Specific mention 10 made of the Polizzi agreement. Petitioners claim the failure of Texas Utilities to repudiate the agreemento demonstrates that the practice will continue.
Texas Utilities denies that the agreements restrict whistleblowers from informing the NRC of safety concerns and that the NRC has so found. It asserts that the agreements are more than four years old and do not relate to the permit holder's current corporate policy.
The Board notes that the Polizzi agreement of June 23, 1988 provides that the agreement shall not "be interpreted to prevent Polizzi from informing the Nuclear Regulatory Commission of any and all safety concerns he may have relating to the Comanche Peak Steam Electric Station."
Even if we are to assume that " hush money" was paid, it does not ipso facto show that delay at Unit 1 was caused by the entering into the agreements or that the agreements, on
. - __ . -. - . ~ . . _ - - - .. - - - - . ~ . - ... - .- _ . - - .. - .
i 27 -
i balance, caused the delay at Unit 2 rather than the reasons i given by Texas Utilities. Petitioners have not provided a '
valid basis in support of the contention. ,
6 (ii) Incorrect stiffnoss valves were used to ,
cortify the CPSES pipo support system. j Petitioners allogo that beginning in 1983 S.M.A. Hasan, [
an engineer at CPSES, had informed Texas Utilition management that incorrect stiffness valves had boon used to cortify the CPSES pipe support system. The project-_ pipe.
support engineer was advised of this in August 1985. . ,
Petitioners stato that the licensing board was not apprised of this situation as Texas Utilitios was obligatod to do. A minority owner advised the licensing board in January 1987 that Texas Utilities, that month, acknowledged using-incorrect values in Unit 1. - Petitioners further allego that i
the project pipe cupport engineer who oversaw the design of all piping support work at CFSES is believed to be currently employed as Texas Utilities' Manager of civil Engineering.
Petitioners claim this demonstrates-that Texas Utilities has .;
not ropudiated its policy.of construction in violation of NRC requirements including the concealment of significant safety deficiencies.
L T .% v )e---rs y -h.,-c. ,.m-rh-re,,.--.*-re.e- ----,--.-,wy- ,-k.t-. ew ,,---w y-m- r-w.,--,-n---,-+-,e.+,--, .- . - - - - , , , - , - , , - . - - ,,,-e,-,,,,wr*-,,--6-,+,v-,.
re- v---,,,. +
28 -
Texas Utilitics asserts that in the mid-1980 Hasan made allegations to the NRC regarding the pipe support cortifications. It staten it advised the NRC that in July 1987 the pipe cupports woro being correctly validated and the NRC concluded Nacan*a concern had boon adoquately resolved. Texas Utilities further ascerto that the matters were mado known to the 11 conning board prior to tho -
dismissal of the procooding on July 13, 1988. It claims that Petitionern' allegationo related to pipo support n
cortification are moro than four years old and do not relate to Texas Utilities' current corporate policios or as to whether it had repudiated past policica.
Petitioncrc' claim that Texas Utilities maintains its policy of construction in violation of NRC requirements, including the concealmont of significant safoty deficiencies, is unsupported as proscribed in S 2.714 (b) (2) (ii) . Lacking is a showing that the alleged impropor cortifications and their concealments extended beyond 1988. The only connection made of the prior activities of Texas Utilities and its current practicos is that it continues to employ the same manager as to whom-the initial complaints woro.mado. Thoro is no showing that he presently allows improper certifications or conceals them.
An additional defect in the pleading is that it does not.
directly challenge the asserted reasons of Texas Utilities in justifict. tion for the delay.
(iii) Harassment and intimidation of whistleblowers.
Petitioners contend that Texas Utilities has. harassed and intimidated whistleblowers at CPSES. They assert that numerous whistleblowers. continue to file complaints against Texas Utilities and their contractors. Petitioners claim l that Texas _ Utilities has not repudiated its corporate-policy-of constructing in violation of NRC regulations which has resulted in the delay of construction of Unit 2.
Petitioners rely on an April 28, 1988 statement of the intervenor in the operating license and CPA-1 proceedings in which the intervenor questions whether Texas Utilities has adequately identified the root cause of the harassment and intimidation of QC inspectors, managements' role in.it and the alleged withholding.of information regarding the.
intimidation of a contractor that was to conduct an independent assessment program. .They also allege that Texas Utilities has:not properly reviewed the concerns of whistleblowers and that harassment and intimidation still' exists at CPSES, Petitioners' seek discoverytin-order to 394-arw-- p - --sy., -aMr-=de*y---- 1-4 p-3-yT- *- WT7-*Wy*q mi ?
i document evidence which they state supports these and other assertions.
In response Texas Utilities contends that the allegations of harassment and intimidation are unsupportod.
It further alleges that Petitioners did not provido a basis j for the allegations that the intimidation and harassment or !
employee concerns resulted in the subject delay in the completion of CPSES Unit 2. Texas Utilities advises that-in the mid-1980's an NRC upacial investigation team found that there were some incidents of intimidation and harassment, but-thero was no "climato of intimidation" at CPSES. Texas Utilities denies any deliberato corporate polj ay of violating NRC requirements.
Petitioners' assertion that an atmosphero of harassment and intimidation exists at CPSES is not supported as is prescribed in S 2.714 (b) (2) (ii) . The information supplied by Petitioners goes back to 1988 and before. No specifics were provided on who the whistleblowers are that continue to file complaints and what are their complaints. No nexus was provided between the alleged misconduct.in the mid-1980's and Texas Utilities' alleged l justification for the delay in the construction of Unit 2. Without such a connection-the information provided is insufficient to support a litigable contention in a construction _ permit extension. application.
Although Petitioners would like to further develop support for the contention through discovery, we cannot givo them that right. Discovery is only available to a party following the admission of a contention. Nisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 )
i NRC 1245, 1263; 10 C.F.R. S 2.740(b) (1) . )
l i
The contention fails because it does not directly challengo. Texas Utilitics' good cause justification for the delay in construction of Unit 2, the time being needed to '
reinspect and to take corrective action at Unit 1 and to ,
allow it timo to make modifications at Unit 2 based-on the knowledge gained. Petitioners' alleghtlons of corporate wrongdoing do not show a genuine dispute exists with the >
applicant on its justification for the dele.y.
The contention also fails to comply with 10 C.F.R.
S . 2.714 (b) (2) (iii) which requiros that each contention contain sufficient information to'show that as genuino dispute exists,with the applicant on.a material issue of law or fact. The' showing must include references to the specific portions of the application that the petitioner disputes. .
The contention is therefore inadmissible. 10 c.F.R. .
5 2.714 (d) (1) . The failure to submit a_ single admissible t -
32 -
contention results in Petitioners not being permitted to participate in the proceeding as a party.. 10 C.F.R.
S 2.714 (b) (1) . The Orrs' petition for leave'to-intervene B
and to hold a hearing shall be denied.
i l
l
- c. Additional Pleadings. j l
on November 17, 1992 Petitioners filed a document entitled " Notification Of Additional Evidence Supporting Petitions To Intervene Filed By B. Orr, D. Orr, J. Macktal, and S. Hansan" (Notification). Petitioners submit for consideration by the Board evidence they allege was not available to them on October 5, 13s2, the date set for filing contentions.
The evidence consists of excerpts-of settlement agreement e entered into-between Texas Utilities and minority owners Texas "r:'aipal Power Agency 8,TMPA):and Brazos.. The-agreements art ' ted.Februarf 12, 1988 and July 5,-1988,-
respectively. They cover the purchase by Texas Utilities of the minority interests. The former minority owners agreed that they and their attorneys, employees:and consultants would not assist or cooperate with third parties-in proceedings rela-ing to Comanche Peak.
W
A Petitioners allege that they were first notified by letter of October 13, 1992 that the agreements were available for inspection in the NRC's Public Document Room which made it too late for their inclusion in-the contention filed October-5, 1992.
They claim that through these restrictive settlement agreements Texas Utilities was able to secrete from the then-convened licensing board, the NRC, and the public information calling into question aspects of the design and construction of CPSES and the ability of Texas Utilities to.
construct and operate the plants. Petitioners further claim
'i.at the agreements demonstrate a past corporate policy that a not bien repudiated, which caused the-delay in the
- astruction of Unit 2. They also allege that the greements show the payment of money for silence and that ..
they. violate the Energy Reorganization Act and important public policies.
Texas Utilities asserts in a response dated-November 25, 1992, that Petitioners'-Notification is procedurally improper and' substantively irrelevant. -It claims that the-two documents were provided.to the NRC years ago and were available to Petitioners longIbefore october 13, 1992. It stated t!iat at a minimum Petitioners should have addressed the five factors that must be
._ ._ _ , . , _..__...u. _ . , _ . . .;. . _ _ . -_ _ . .
_ . . .--. =- -- . . - .. . . . . . . . .. . . .
34 -
considerod before a nontimely' filing may txt ontortained, as provided f or in 10 C. F.R.- S 2. 714 (a) (1) , and that their failure to do so should_ result in the rejection of tho' document. ;
Texas Utilities further argues that Petitioners make no effort to explain how the agreements have anything to do with the current extension request. It claims that the agrooments predate the previous extension of the construction completion dato and are irrolovant. The agreements are said to fail to satisfy the Commission's requirements for admission of a contention in a construction permit extension proceeding as contained in Texas Utilities Electric Co.-(Comancho Peak Steam Electric Station, Unit 1),
Staff in a December 13, 1992 response argues that Petitioners have failed to establish. good:cause for the lato' filing of the Notification and that the-information and:
legal arguments contained-in_it should not be considorod by.
the. Board. Staff also argues that the Notification fails'to-demonstrate that the. contention has any discernable relationship to.-the ' issue.in-the proceeding. ~It asserts-that the settlement agreements were last entered into in
~
July 1988 which is prior-to the-relevant time-frame in the-proceeding which is November 18, 1992 when the' previous i
construction permit construction completion date was extended. Staff claims that Texas Utilities' defense of the agreements in no way demonstrates that the permit holder had a corporate policy that was responsible for the delay in the construction of Unit 2.
We find that the two settlement agreements cannot be --
considered as neely obtained evidence because they were publicly available prior to the October 5, 1992 filing date.
The agreements were submitted to the NRC, in 1988, in support of two applications to amend the construction permits for CPSES to reflect the changes in ownership. The issuance of the amendments was noticed in the Federal Register along with the intormation that the application documents were available in the NRC's Public Document Room.
53 Fed. Reg. 31,778 (August 19, 1988); 53 Fed. Reg. 50610 (Dec. 16, 1988).
Furthermore, Petitioners were generally aware of the contents of the agreements when they filed their contention on October 5, 1992 and could have made in that filing all of the points they offer in the Notification. In the October 5, 1992 filing Petitioners submitted excerpts of a similar settlement agreement Texas Utilities entered into with Tex-La Electric Cooperative of Texas and argued that the agreement and those with Brazos and TMPA supported their I
r__.
1
- 36 -
contention. 1 Petitioners stated that they were' unable to get copies of the Brazos and TMPA settlement agreements but argued on the basis of all three because they'were all similar. The submission of excerpts of the two agreements in the Notification were but a formality in that their relevant contents had already been used in a basis in support of the contention.
Petitioners used the excerpts of the Brazos and TMPA settlement agreements as a vehicle to expand on the previous matters presented in support of the contention and to introduce new arguments such as the claim the settlement agreements reflected the payment of money.for silence'and that they violate the Emergency Reorganization Act and public policies.
Not only can the Brazos and TMPA settlement agreements not be considered newLevidence because of-their previous availability but their contents had already been used to support the contentior, What Petitioners have proffered.in their Notification is a late-filed amendment to the--bases of their contention. It was offered without good cause and without addressing the five factors required.to be considered by the Board prior to determining whether the nontimely-filing should be entertained. 10 C.F.R. S 2.714 (a) (1) . We therefore. reject the Notification.
1
, m--a , , nr p ,-O,,-w,, , u- e s , e -,e w ,w..-w s - , -n--.-+- -. -.,m..--
w-1 h Petitioners B. Irene Orr, D .' I . Orr,: Joseph J. Macktal, Jr._and S.M.A. Hasan-filed a motion entitled " Motion To Compel Disclosure'Of Information Secreted By. Restrictive Agreements," dated November 15, 1992. Petitioners request-the Board to declare null and void the provisions of the settlement agreements between Texas Utilities and the three minority owners, which prohibit the minority owners and those associated with them from disclosing any potential safety related information to Petitioners, the NRC and the general public. They also request that the Board require that the parties to the settlement agreements, and those affected by the agreements, submit to discovery by-Petitioners. The purpose of the discovery is to permit Petitioners to file additional contentions and additional information in support of the previously filed contention.
Texas Utilities in a response dated November- 25,-1992 l
- requests that the motion be denied. It. asserts that the I
request to-declare the agreements null-and void 11s'beyond- ,
the scope of the Board's - jurisdiction- and that the request:
for discovery to_ frame contentions is-for relief,that a petitioner seeking to intervene is not entitled.
I Staff, in its response-dated' December 3, 1992,: agrees
~
with Texas Utilities in opposing'the motion.- It also--
contends -that the' agreemen'as neither _ violate the Energy
> --- -m -
w- - , w w g' g twr-y ig. q. .g 9
v .. . - - .. . - . - - .- . . . - - ,
Reorganization Act or the Commission's regulations.
However, to the extent the agreements are within the proceeding and.they preclude the affected corporate entities from bringing-information to the NRC.they are without force .
and effect insofar as they relate to communications with the NRC.
We deny the motion because Petitioners seek relief that is not available to a petitioner for leave to intervene.
The motion in effect is one for discovery. The request to declare parts of the settlement agreements null and void is but an integral part and.in furtherance of the discovery request. Discovery is only available to a party to the proceeding that has already filed an admissible contention.
Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1263; 10'C.F.R. S-2.740(b) (1) . Petitioners have not achieved.that status and cannot bc granted that relief. We do not rule at this time on whether the relief could be~ granted as requested had petitioners achieved party status.
i' l'
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i
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4 39 -
B. The Dow Petition To-Intervene
- 1. Requisite Interest For Standing.
i-R. Micky Dow, his spouse Sandra Long Dow and Disposable Workers of Comanche Peak Steam Electric Station (Workers),
each petitions for leave to intervene in the proceeding,-
pursuant to 10 C.F.R. S 2.714.
R. Micky Dow alleges that he owns property within a 50-mile radius of CPSES and could be harmed by an accident at the plant. He claims to have already been adversely affected because of telephone threats by an officar of Texas Utilities which caused him to flee from his home and Texas. ,
Sandra Long Dow. claims that in the normal course of events she would reside with her husband within a 50-mile-radius of-CPSES but has been precluded from doing so because-of threats to him and harassment to her-from those-under the control of Texas Utilities.
1.
W orkers is stated to be an organization composed chiefly of persons who own property or reside within a 50-mile radius of the facility. Affidavits attesting to this are claimedLby Petitioners to be already'on file with I
! the NRC. It was not identified where. The board of l-w
4
- 40 -
directors of Workers is reported to be made up of former whistleblowers who'were prevented from testifying.before_the Commission because of an allegedly illegal-settlement agreement. Workers claims to have had standing in "past issues" and wants to reclaim it here. The "past issuus" were not identified.
Petitioners claim all of those interested in the proceeding do, or will live, work, recreate,Jtravel and raise families within a radius of 50 miles of CPSES. Much of the food and all of the water used in the area was said to be subject to radioactive or toxic material releases from the facilities. They assert that there is good reason to deny the request for an extension but do not further identify it.
Petitioners _ request the suspension of1the subject-proceeding _ based on vague arguments relating-to other proceedings that they are_ engaged in before the NRC and the-Federal Courts. They argue mootness and due process as a-
- basis for suspending this proceeding.
Texas Utilities argues that the' joint petition should o not-be accepted for filing. It asserts-that it is one or=
- more than a dozen actions involving-CPSES that the' Dows have initiated. Texas Utilities claims that'the Dows have
41 -
a engaged in-a pattern of not complying with the Commission's; requirements, of making frivolous _and scurrilous-claims, of ,
omitting material facts and of. harassing.-it and thetNRC. ,
Texas Utilities had requested the Commission to' grant a
, similar motion in Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-92-12, 36 NRC (1992), but in denying the Dows' petition for late ,
intervention and to reopen the record,-the Commission did -
not address the Texas Utilities' mLtion.
Texas Utilities asserts that the Dows have not established standing for themselves on the basis of'the-proximity of their residence or their property to CPSES. It claims that the probable reason that Dows have not chosen to remain in Texas is that he is a convicted felon and'that
- there are felony arrest and-mindemeanor' warrants outstanding; against him in Texas. Texas Utilities' position is that Dows' inability.to establish standing is due to his own' misconduct. -It further argues thatotheLDows have not -
asserted _any other injury-in-fact which" falls within the p
zone of interest protected by the AEA and that organizational- standing was not established .cnt. behalf of i Workers. -It would deny tne Dow petition for' lack of l=
L standing of the-Petitioners.
i i
(W -- -f
Staff is of the same position as Texas Utilities that the Dow petition does not establish standing as provided in 10 C.F.R. S 2.714. It views Petitioners' request to suspend the proceeding on the basis of nootness and due process claims as irrelevant considering that they have not established standing.
The Dows individually cannot be presumed to be adversely atfected by either plant operations or a credible accident at the plant where their base of normal, everyday activities is not within close proximity (50 miles) of the facility. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 (1974). ,
The Dows fault Texas Utilities for not being able to reside within 50 miles from the plant and Texas Utilities blames the Dows for the situation. Irrespective of who is responsible, the Dows do not meet the conditions for invoking the presumption.
To establish standing they are therefore relegated to do so by alleging an injury-in-fact that is within the zone of interest protected by the AEA or NEPA. The injury should likely be remedied by a favorable decision granting the relief sought. Dellums v. NRC, supra.
.- .~ - . .- - = . - . . .- . - . . _ . . .. - -_ .
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- 43 -
l The Dows individually have not met the foregoing requirements. They have'not. satisfactorily explained how they, who=do not reside in Texas, would have their health and safety jeopardized or suffer environmental-harm'because of the construction of Unit 2. The property alleged to-be owned near the plant was never identified, o
The alleged threats and harassment:that were said to result in the Dows fleeing Texas io not an injury protected under the AEA or NEPA. A favorable decision for the Dows in the subject proceeding would not remedy the alleged injury.
The forum for. resolving that dispute is not here. They do not have requisite interest for standing.
We-find that the Workers has not been-shown to have the necessary interest for organizational or representative standing.
For an organization to have standing, it must show
= injury-in-fact to its organizational interests or to.the
- interest of members who have authorized it' to act for them.
i If the organization is depending upon injury to the interests of its members to establish standing,.the L
1.
organization must provide with its. petition identification i
of at least one member who will be injured, a description of the nature of that injury, and an authorization for the l
l;
... . . . . . . . - . - - - - , - - . ~ . . . - . . - . . . . . . . . . . .
. - . . . - - . . . .~ - . . . - . . - , . , ,
- 44 -
organization to represent that individual in:the proceeding.
' Philadelphia Electric'Co. (Limerick Generating Stations, >
Units L and 2), LBP-82-43A, 15 NRC 1423,'1437 (1982).
Workers does not state its organizational purpose.nor does it claim any-injury to its organizational interest.
Its assertions that it had standing in the past in some.
unidentified matter does nothing to enhance its claim to standing in this proceeding. It is incumbent on Workers to establish standing on this record and it cannot rely on something elsewhere of which we know nothing.
Similarly it has not established representational standing. It rolles on unsupplied affidavits that are said to attest to Workers' members owning property _or residing within-50 miles of CPSES. The contents of the affidavits _
and the proceeding in which they were filed are unknown.
There is nothing in this record, as is required for representational standing, that identifies at least one member 1who will be: injured, a descriptionlof the nature of
'that injury to the member and an: authorization for the -j l Workers to represent that--individual in1this proceeding.
i Sandra Long Dow does not fulfill the-role of being the injured member for the reasons-we stated previously as?to why she has not established individual standing.
4 L
,- , , - , - - - - r ,
6 -
Not having-established the interest for standing the request by the Dow petitioners to suspend this proceeding on claims of mootness and due process cannot be considered by us.
We will not decide on Texas Utilities' request that we not accept the filing of the Dow peti + ion. There is insufficient evidence in this record to make that ruling.
It would serve no useful purpose to further pursue the matter and thereby delay the disposition of this proceeding which can be disposed of on the existing record.
The petition for leave to intervene and to hold a hearing shall be denied on the grounds that Petitioners failed to establish the requisite interest for standing under 10 C.F.R. S 2.714.
'2 . Aspects.
Texas Utilities and Staff claim that the Dow petition for leave to intervene fails to set forth the. specific aspect or aspects of the subject matter of the proceeding as to which Petitioners seek to intervene, contrary to 10 C.F.R. S 2. 714 ( a) ( 2 ) .
l
e We agree that this constitutes :another defect in the=
Dow petition which is; inadequate for establishing standing under 10 C.F.R. S 2.714.
- 3. The Request To Filo Contentions.
In a Memorandum and Order of September 11, 1992, we set October 5, 1992 as the date to file amended petitions and supplemental petitions containing contentions for litigation. Oii October 5 the Dow petitioners filed a motion for an extension of 30 days to make the filing. The request was based on a claim that movants were-precluded from making a timely filing through circumstances over which they had no control. We denied the request on the grounds that their-reason lacked credibility, was unsupported by probative evidence and failed to show good cause.
R. Micky Dow asserted that on September 3, 1992, he was apprehended, confined and held incommunicado for 30: days and his case materials were confiscated in order to disrupt his participation in-the proceeding and to keep from timely-making the October 5-filing date. Underscoring the lack of credibility of the storyfwas'that he.said he wasJimprisoned-on September 3, 1992 to-keep him from-making the October filing date, although it was not until September 11, 1992-
- 47 -
that the Board issued its memorandum and set the date for filing.
In response to our Memorandum and Order of October 19, 1992 denying the motion, R. Micky Dow filed a motien for rehearing dated November 10, 1992. He now argues that he had no knowledge of the scheduling order and therefore could-not timely respond. He asserts that granting an extension would not-prejudice any of the parties and if the Board found his motion to be lacking in truth it would have been more appropriate to issue an order to show cause.
Texas Utilities opposes the motion because it provides no new information which would alter the Board's prior ruling that good cause for granting an extension had not been demonstrated. It contends the motion merely provides additional unsubstantiated details related to precisely the same events discussed in the initial motion.
Staff also opposes the motion. It argues that the motion fails to demonstrate that the October 19, 1992 order was erroneous or arbitrary. Staff considers the motion for rehearing as a motion for reconsideration and states the motion does not meet the standards for reconsideration. The Commission has held that motions to reconsider should be associated with requests for re-evaluation of an order in
light of an elaboration upon or refinement laf arguments ,
previously advanced and they are not the occasion for an
- entirely new' thesis. Central Electric Power Cooperative, Inc. (Virgil C. Summer Nuclear Station, Unit 1,) CLI-81-26, 14 NRC 787 (1981).
Staff alleges that the claim of a lack of knowledge of the filing date is new and improper to raise in the motion for. rehearing. Additionally, it states that the movant reiterates the same argument without further elaboration, that he was separated from his evidentiary material and was unable to contact anyone, which is also-improper. pleading..
It also alleges movant fails to understand his burden of proof in a motion for-an extension of time and that the ,
motien for rehearing was untimely.
The Dow motion for rehearing, along with the attached unverified statement of Mr. Dow only confirms our October 19, 1992 finding that the original motion' lacked credibility, was unsupported by-probative evidence and failed to-provide good cause for the requested extension.
The heart of the original motion was'the Dow claim that
.he had a rough draft of the pleading to be filed, that he was incarcerated on September 3 for more than 30 days and had his papers stolen so that he would not.be able to timely
- 49 -
file. 'Having had-the Board point out'that it first ordered the pleading filed on September 11, 1992 he now states he never knew of the September 11 order and therefore could not meet it. This change merely conflicts with the original version and does nothing to enhance credibility.
Dow in his cricinal motion claimed he was held incommunicado for more than 30 days and could not contact anyone regarding the possible extension of the filing date.
In his current statement he advises of three telephone conversations with one attorney, a visit by another and of telephone calls he made but not with the frequency he wanted. He now undermines his claim that he could not contact anyone regarding the filing.
In his original motion of October 5, 1992, Dow stated that "the public-record and court transcription in existence now will completely substantiate" his version of what occurred. The motion for rehearing remains unsupported by any probative evidence. All that was submitted was an unverified statement that conflicts with the original story.
Under 10 C.F.R. SS 2.711(a)-and 2.732 the Dows had the burden of showing good cause for.the requested extension.
They did not meet this burden provided for in the NRC's
' Rules of Practice and their motion for an extension failed.
c .
We found no basis to employ a show cause procedure before ,
deciding'the motion. . It was not required nor' warranted by the circumstances.
The Dows contend that granting the extension will not .
- prejudice anyone. To the contrary, to grant a motion that legally should be denied results in a denial of due process. .
Parties would be injured if this was permitted to occur and ,
the administrative process would also suffer.
We will not deny the November 10, 1992 motion for rehearirg on the grounds of untimeliness because there is no prescribed time for filing such a motion. We shall' deny tle motion on the basis that it failed to show that there was error in our denial of the motion for.an extension of time to file contentions.
ORDER Based upon all of the foregoing, it is hereby Orderodi
- 1. The November 15, 1992 " Motion To Compel ~ Disclosure Of Information Secreted By Restrictive Agreements" filed by B.' Irene Orr,'D.I. Orr, Joseph J. Macktal, Jr. and S.M.A.
Hasan is' denied.
I l
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4 g
- 2. The November 17, 1992 " Notification of Additional Evidence Supporting Petition To Intervene Filed By B. Orr, D. Orr, J. Macktal, And-S. Hasan" is rejected.
- 3. The July 27, 1992 " Petition To Intervene And Request For Hearing Of B. Irene, D.I. Orr, Joseph J.
Macktal, Jr. And S.M.A. Hasan," as supplemented on October 5, 1992, is denied.
- 4. The November 10, 1992." Motion For Rehearing By R. Micky Dow, Petitioner" is denied.
- 5. The July 28, 1992 " Petition Of Sandra Long Dow dba-Disposable Workers of Comanche Peak Steam Electric Station, and R. Micky Dow For Intervention And Request For Hearings"-
is denied.
- 5. The proceeding is terminated.
This Order is subject to-appeal to the Commission-pursuant to the terms of 10 C.F.R. S 2.714a,1 and specifically 10 C.F.R. S 2.714a(b). Any such appeal-must be j
filed within ten days after service of this Order.and must L
include a notice of appeal and accompanying supporting.
brief.. Any other party may file a brief in support of or-in l-
t
- 52 -
opposition to the appeal within ten days after service of the appeal.
THE ATOMIC SAFETY AND LICEllSING BOARD
-u u. J Morton B. Marhuligp, Chairman CHIEF ADMINISTRATIVE LAW JUDGE M
Dr James H. Carpenter INISTRATIVE JUDGE O
Om4arn
\
A Dr. Peter S. Lam ADMINISTRATIVE JUDGE Bethesda, Maryland December 15, 1992 l
L _ _ _ _ ____
1
,1 UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION In the Matter of
-TEXAS UTILITIES ELECTRIC COMPANY Docket No.(s) 50-446-CPA- ,
(Comanche Peak Steam Electric Station, Unit No. 2)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB M&O (LBP-92-37)..TERMINAT'G have been served upon the following persons by U.S. mail, first class, except as othenvise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Office of Commission Appellate Administrative Judge Adjudication Morton B. Margulies, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC- 20555 Administrative Judge Administrative Judge- -
James H. Carpenter Peter S. Lam Atomic Safety and Licensing Board Atomic Safety.and Licensing Board U.S. Nuclear Regulatory Commission U.S.. Nuclear Regulatory . Commission -
Washington, DC 20555 Washington, DC 20555 Marian L. Zobler, Esq. Gentge L. Edgar,-Esq.
Michael H. Finkelstein,-Esq. Counsel *for T U Electric Office of the General Counsel Newman & Holtzinger,_P.C.
U.S. Nuclear Regulatory Commission 1615 L Street, N.W., Suite 1000 Washington, DC 20555 Washington, DC 20036 R. Micky Dow Michael D. Kohn, Esq. Sandra Long Dow Counsel for Petitioners Disposable Workers of, Comanche Peak Kohn, Kohn & Colapinto, P. C. -_ Steam Electric Station 517 Florida Avenue, N.W. Dept. 368, P. O. Box 19400 Washington, DC 20001 Austin, TX 78760
Docket No.(s)S0-446-CPA LB M&O (LBP-92-37)..TERMINAT'G Dated at Rockville, Md. this 16 day of December 1992 f OTfice of the Secretary of the Commission i
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