ML20126K212
| ML20126K212 | |
| Person / Time | |
|---|---|
| Issue date: | 12/31/1992 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-92-434, NUDOCS 9301070066 | |
| Download: ML20126K212 (165) | |
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'+, ,o ADJUDICATORY ISSUE December 31, 1992 (InfOrmation) SECY-92-434 MEMORANDUM FOR: The commissioners FROM: John F. Cordes Solicitor
SUBJECT:
LITIGATION REPORT 1992 - 22 Critical Mass Enerav Proiect v. NRC, No. 92-1043 (S. Ct., filed December 18, 1992)
As reported in Litigation Report 1992-16, SECY-92-295, this is a long-running Freedom of Information Act lawsuit seeking access to confidential "SEE IN" documents prepared by a nuclear industry organization, INPO, and shared with the NRC on condition that the NRC not disclose them outside the agency. To protect the documents from disclosure the NRC invoked FOIA exemption 4 (protecting confidential commercial information received from private parties). The case has been y pending since 1984, and has generated several published opinions.
In September 1992 a 7-4 majority of the an b.ang D.C. Circuit upheld NRC's FOIA decision not to disclose the INPO reports. The-majority concluded "that where, as here, the information sought is given to the government voluntarily, it will be treated as confidential under [FOIA) Exemption 4 if it is of a kind that the provider would not customarily make available to the public."
(Slip op. at 2-3).
NOTE: TO BE MADE PUBLICLY AVAILABLE IN 10 WORKING DAYS FROM THE DATE OF THIS PAPER.
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930/0700 U gA 250013
o a 4
i The Commissioners 2 1
In reaching this conclusion the en banc l majority limited the reach of a longstanding 4
D.C. Circuit precedent, National Parks and Conservation Ass'n v. Morton, 498 F.2d 765, (D.C. Cir. 1974), where the court had required government agencies-invoking
! Exemption 4 to demonstrate how disclosure would harm a government interest. The 1
dissenters argued for upholding National
! Parks. In their view "[t]he National Parks j formulation fits the congressional design better than the virtual abandonment of federal court scrutiny approved by the court today for Government withholding of commercial or financial materials submitted voluntarily" (Dissent, at 8).
l Plaintiff now has sought Supreme Court
~
review, on-the ground that the new Exemption 4 test crafted by the court of appeals is i unworkable and unlawful. We will work with
^
the Civil Division and with the Solicitor General's office at the Justice Department in I responding to the certiorari petition.
Attachment:
Certiorari Petition l -Contact:
! John F. Cordes l 504-1600 t
Dow v. NRC, Nos. 92- & 92- (D.C.
i Cir.,-filed-Dec. 29, 1992)
Petitioners have filed two more lawsuits seeking judicial review of NRC decisions on
- -the Comanche Peak nuclear power plant. One L of the new petitions for review attacks the NRC Staff's November 19 denial of a
- section 2.206 petition demanding revocation of the Comanche Peak license. The other
, petition for review attacks a December 15
- Licensing Board decision rejecting petitioners' request for a hearing on the amendment of Comanche-Peak's construction l
J
4
, e-9 i
The Commissioners 3 l permit for Unit 2. Both new. lawsuits may be
- subject to motions to dismiss on
{
jurisdictional-typoe grounds.
- Attachments: Petitions for Review i
l
Contact:
I charles E. Mullins F 504-1618 l In re El Paso Electric Co.,-Adversary Proceeding No. 92-1285FM (W. D. Tex.)
The El Paso Electric Company, a partial owner
{
of the Palo Verde nuclear power plant, is l- attempting to reorganize its financial affairs under the protection of Chapter 11_of l the Bankruptcy Act._ As part of the t
bankruptcy proceeding El Paso has-tried to i " reject" leases it entered with a bank that
' led to what'El Paso views as onerous payment.
l However, under bankruptcy law,' rejection of
! the leases also amounts to a loss of a right to possession.
On October 16, 1992, the United States, on
, behalf of the NRC, moved to intervene in the proceeding to protect the NRC's statutory
, prerogative to approve transfers of operating j licenses. The bankruptcy court has granted the motion to intervene, and has indicated l its intent to defer to'the NRC's regulatory j authority over-license transfers.
Attachment:
Motion I
Contact:
) Edwin J. Reis i 504-1578 AZ o n F. Cordes 4
Solicitor DISTRIBUTION:
Commissioners Regional Offices
IP CA 4 DCD Central Files
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l Attachment -
Critical Mass Enercy Proiect v. NRC, No. 92-1043 (S. Ct., filed December 18,_1992) 4 J
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4 No. ,2. W IN THE fhtpreme Gourt of il le Entteh 9tates OCTOBER TERM,1992 CRITICAL MA32 EhcKGY PROJECT, Petitioner, V.
NUCLEAR REGULATORY COMMISSION and INSTITUTE OF NUCLEAR POWER OPERATIONS,
$ , Respondents, e C2 N p .,
PETITION FOR A WRIT hE6]ORh z TO THE UNITED STATES COURT Of APPEALS FOR THE DISTRICT OF COLUMBG CIROJIT
.$ M Paul 5.6 Wogon C (Cdiinselof Record)
David C. Vladeck Alan B. Morrison g
PublicCitizenLitigation Group 2000 P Street, N.W., Suite 700 Washington, D.C. 20036 (202) 833 3000 Eric R. Glitzenstein Harmon, Curran, Gallagher &
Spielberg
- 2001 S Street, N.W., Suite 430 Washington, D.C. 20009 (202) 326-3500 Attorneys for Petitioner December 18,'1992
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- $ i 1
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I QUESTION PRESENTED Did the Court of Appeals err in concluding that -
analytical reports about the safety of nuclear power plants, distributed widely throughout the nuclear industry and submitted to the Nuclear Regulatory Commission by an industry consortium, may be withheld from the public under Exemption 4 of the Freedom ofInformation Act,5 U.S.C. 6 552(b)(4), which exempts " trade secrets and commercial or financial information obtained from a person and privileged or confidential"?
l i
I l-r i
i i ii I
PARTIES TO THE CASE All parties to the case appear in the caption. The Business Roundtable, an association of chief executive officers of corporations, filed a brief as amicus curiae on rehearing en banc supporting respondents. Petitioner
! Critical Mass Energy Project is an unincorporated division
! of Public Citizen, Inc., a non-profit District of Columbia
- corporation.
i e
9
iii TABLE OF CONTENTS QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . i PARTIES TO THE CASE . . . . . . . . . . . . . . . . . . . . ii
. TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv -
1 OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . .
JU RISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . 2 PERTINENT STATUTE . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF 'rHE CASE . . . . . . . . . . . . . . . 2
- 1. The FOIA Request . . . . . . . . . . . . . . . . . . . 2
- 2. First District Court and Appellate Proceedings . . . . . . . . . . . . . . . . . 5
- 3. Remand and Second Appeal . . . . . . . . . . . . 6
- 4. Proceedings En Banc . . . . . . . . . . . . . . . . . . 8 REASONS FOR GRANTING THE WRIT:
The Decision Below Raises Important Questions of Interpretation of the Freedom of Information Act That Should be Settled by This Court, It Conflicts With Other Appellate Decisions, and It Creates Serious Problems in the Adminstration of the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
- 1. The Ill-Defined Nature of the Voluntary / Mandatory Distinction . . . . . . . . 14
- 2. The Incentive for Agencies To Evade the FOIA by Accepting Information Voluntarily . 19
- 3. The Deviation From the Purpose of Exemption 4 . . . . . . . . . . . . . . . . . . . . . . . 22
- 4. The Reverse-FOIA Problem ........... 23 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 26
l N
i TABLE OF AUTHORITIES i Page Cases:
~
Acumenics Research & Technolog v. Department of Justice,843 F.2d 800 (4th Cir.1988) . . . . 13,25 l
\
Administrator, FAA v. Robenson, 21 422 U.S. 255 (1975) . . . . . . . . . . . . . . . . . . . .
American Airlines v. National Mediation Board, 13 588 F.2d 863 (2d Cir.1978) . . . . . . . . . . . . . . .
American Jewish Congress v. Kreps,574 F.2d 624 21 (D.C. Cir. 197 8) . . . . . . . . . . . . . . . . . . . . . . . .
- Anderson v. HHS,907 F.2d 936 (10th Cir.1990) . . . 13 Bowen v. FDA,925 F.2d 1225 (9th Cir.1991) . . . . 19 CNA Financial Corp. v. Donovan,830 F.2d 1132 24 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . .
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) . . . 17, 23 Common Cause v. Depanment of Air Force, 1 GDS i 80,162 (D.D.C.1980) . . . . . . . . . . . . 22 Comstock International (U.S.A.) v. Export-Import Bank of the United States,464 F. Supp. 804 (D.D.C. 1979) . . . . . . . . . . . . . . . . . . . . . . . 17, 18 Continemal Oil Co. v. FPC, 519 F.2d 31 (5th Cir.
1975), cert. denied,425 U.S. 971 (1976) . . . . . . 13 Continental Stock Transfer & Trust Co. v. SEC, 13 566 F.2d 373 (2d Cir.1977) . . . . . . . . . . . . . . .
y Critical Afass Energy Project v. NRC,644 F. Supp.
244 (D.D.C 1986), vacated and remanded, 830 F.2d 278 (D.C Cir.1987), on remand, 731 F. Supp. 554 (D.D.C 1990), rev'd and remanded,931 F.2d 939 (D.C Cir.1991),
vacated for rehearing en banc,942 F.2d 799 (D.C Cir.1991), on rehearing en banc, 975 F.2d 871 (D.C. Cir.1992) . . . . . . , . . 1, passim Department of Air Force v. Rose, 425 'U.S. 352 (1976) . . . . . . . . . . . . . . . . . . 19, 21 Department of Justice v. Julian, 476 U.S,1 (1988) . . . . . . . . . . . . . . . . . . . . . . 19 General Elecric Co. v. NRC,750 F.2d 1394 13,14, 24 (7th Cir.1984) . . . . . . . . . . . . . . . . . . .
Green v. Department of Commerce,468 F. Supp. 691 22 (D.D.C 1979) . . . . . . . . . . . . . . . . . . . . . . . . .
Indian Law Resource Center v. Depanment of Interior, 477 F. Supp.144 (D.D.C 1979) . . . . . . . . . 17,19 hicDonnell Douglas Corp. v. Rice, No. 92-2211-IH G (D.D.C) (Sept. 30,1992) . . . . . . . . . . . 17,24,25 biiami Herald Publishing Co. v. Small Business Administration,670 F.2d 610 (5th Cir. Unit,B 1982) . . . . . . . . . . . . . . . . . . . 17 4
National Organi:ation for Warren v. Social Security Administration,736 F.2d 727 (D.C Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . 24 National Parks & Conservation Associanon v. Afonon, 498 F.2d 765 (D.C Cir.1974) . . . . . . . 4, passim
I E 1 I
si 9 to 5 Organization for Women Office Workers v. Board of Governors of the Federal Reserve System, 721 F.2d 1 (1st Cir.1983) . . . . . . . . 13,14,18,22 Orion Research, Inc. v. EPA, 615 F.2d 551 (1st Cir.),
cert. denied,449 U.S. 833 (1980) . . . . . . , . . . . 13 Pacific Architects & Engineers v. Department of State, 906 F.2d 1345 (9th Cir.1990) . . . . . . . . . . . 13, 25 Patterson v. McLean Credit Union,491 U.S.164
- i. (1989) ............................... 9 Public Citizen Health Research Group v. FDA, 704 F.2d 1280 (D.C. Cir.1983) . . . . . . . . 5, 22, 23 Sharyland Water Supply Corp. v. Block, 755 F.2d 397 (5th Cir.), cen. denied, 421 U.S.1137 (1985) . . . . . . . . . . . . . . . . . . . . 13
- Shermco industries v. Secretary of Air Force,
- 613 F.2d 1314 (5th Cir.1980) . . . . . . . . . . . . . . 13 i
Teich v. FDA,751 F. Supp. 243 (D.D.C.1990).................... 15,18,22 Timken Co. v. United States Customs Senice, 531 F. Supp.194 (D.D.C.1981) . . . . . . . . . . . . . _19 Washington Post Co. v. HHS,690 F.2d 252 (D.C. Cir.1982) . . . . . . . . . . . . . . . . . . . . . . . 19
, Washington Post Co. v. HHS,865 F.2d 320
, (D.C. Cir.1989) . . . . . . . . . . . . . . . . . . . . . . . 15 ,
Westinghouse Electric Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir.1976),
cert. denied, 431 U.S. 924 (1977) . . . . . . . . . . . 13 l
vii Statutes and Legislative Materials:
. 1, Passim 5 U.S.C % $52(b)(4) . . . . . . . . . . . . . .
. . , . . . . 10,13 5 U.S.C % 552b(e)(4) . . . . . . . . . . .
5 U.S.C App. % 10 . . - ''''''''''''''
- 17 5 U.S.C % 706(2)(a) . . . . . . . . . . .
. . . . . . . . , 15,16 7 U.S.C % 136a(c) . . . . . . . . . . . .
15 U.S.C. % 46(f) . . . . . . . . . .
- '''''I
- '''''' I4 '
15 U.S.C % 1401 . . . . . - -
~'''''''''' '
15 U.S.C % 2055 . . .
'''''' b 15 U.S.C % 2604 ..... - - '
- '*** I 18 U S.C. % 1905 . . . . .
''''''' A5 21 U.S.C b 355 . . . . - -
- - '' 2 28 U.S.C. % 1254(1) . . . . . . . . .
. 13 122 Cong. Rec. 24,181 (1976) . . . . . . . . . . . .
H.R. Rep. No. 880, pt. I, 94th Cong.,2d Sess. (1976) . . . . . . . . . . . . . 13, 21 H.R. Conf. Rep. No. 917,96th Cong.,
13 2d Sess. (1980) . . . . . . . . . . . . . .
H.R. Conf. Rep. No. 208, 97th Cong.,
' *
- 13 1st Sess. (1981) . . . . . . . . . .
i j
)
viii
! S. Conf. Rep. No. 1178,94th Cong.,
13 2d Sess. (1976) . . . . . . . . . . . . . . . . . . . . . . . .
S. Rep. No. 500, 96th.Cong.,
13 -
1st Sess. (1979) . . . . . . . . . . . . . . . . . . . . . . . .
S. Rep. No. 813, 89th Cong.,
20 1 st Sess. (1965) . . . . . . . . . . . . . . . . . . . . . . . .
Regulations:
4 10 CF.R. 6 50.73 . . . . . . . . . . . . . . . . . . . . . . . . . .
3 21 C.F.R. l 314.60 . . . . . . . . . . . . . . . . . . . . . . . . . 16 21 C.F.R i 314.102 . . . . . . . . . . . . . . . . . . . . . . . . 16 40 C.F.R. l 716.40 . . . . . . . . . . . . . . . . . . . . . . . . . 15 40 C.F.R. I 152.105 . . . . . . . . . . . . . . . . . . . . . . . 16 41 CF.R. I 60 1.7 . . . . . . . . . . . . . . . . . . . . . . . . 17 25 48 C.F.R. S.401(b) . . . . . . . . . . . . . . . . . . . . . . .
i 48 CF.R.14.408 1 . . . . . . . . . . . . . . . . . . . . . . . . 2.5 48 CF.R. 15.610 . . . . . . . . . . . . . . . . . . . . . . . . . 16 48 CF.R. 205.303 . . . . . . . . . . . . . . . . . . . . . . . . . 25 45 Fed. Reg. 6793 (1980) . . . . . . . . . . . . . . . . . . . 20 46 Fed. Reg. 3541 (1981) . . . . . . . . . . . . . . . . . . . 20 i
46 Fed. Reg. 49,134 (1981) . . . . . . . . . . . . . . . . . . 20 48 Fed. Reg. 33,850 (1983) . . . . . . . . . . . . . . . . . . . 4
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In The Buprerne Gourt of ill e Multth 9tates October Term,1992
)
No. 92 CRITICAL MASS ENERGY PAQJECT,
?ctitioner, V.
NUCLEAR REGUI). TORY COMMISSION and INSTITUTE OF NUCLEAR POWER OPERATIONS, Respondents.
PETITON FOR A K'RIT OF CERTIORARI TO THE UNITED STAThJ COURT OF APPEALS FOR THE DISTR:CT OF COLUMBIA CIRCUIT OPINIONS BELOW The first opinion of the District Court, granting summary judgment for the Nuclear Regulatory Commis-sion, is reported at 644 F. Supp. 344 (D.D.C.1986) and appears in the appendix to this petition (" Pet. App.") at 36a-41a. The first opinion of the Court of Appeals, va-cating and remanding for further proceedings, is reported at 830 F.2d 278 (D.C. Cir.1987) and appears at Pet. App.
42a 64a. The opinion of the District Court on remand, granting summary judgment for respondents, is teported at 731 F. Supp. 554 (D.D.C.1990) and appears at Pet.
App. 66a 72a. The second opinion of the Court of Appeals, reversing and remanding,is reported at 931 F.2d 939 (D.C. Cir.1991) and appears at Pet. App. 73a 90a.
The order of the Court of Appeals vacating the panel opinion and granting rehearing en bane is reponed at 942
2 F.2d 799 (D.C. Cir.1991) and appears at Pet. App. 91a-92a. The opinion of the en bane Court of Appeals affirm.
ing the Distr.ct Court, which S the subject of this petition, is reported at 975 F.2d 871 (D.C. Cir.1992) and appears at Pet. App. la 33a..
JURISDICTION The judgment of t!'e Court of Appeals on rehearing en bane was entered on August 21, 1992. On October 7, 1992, the Chief Justice entered an order extending the time to file a petition for a writ of ceniorari to and including December 19,1992. This Court has jurisdiction pursuant to 28 U.S.C. I 1254(i, PER11NENT STATUTE Exemption 4 of the Freedom of hformation Act
("FOIA"),5 U.S.C. I 552(b)(4), provides that the FOIA does not apply to " trade secrets and commercial or financial information obtained from a person and p2vileged or confidential."
~ STATEMENT OF TliE CASE I 1. The FOIA Request. This case arises out of petitioner's FOIA request for a series of reports about the safety of nuclea power plants submitted to respondent e Nuclear Regulatory Commission ("NRC") by respondent Institute of Nuclear Power Operations (" INFO").
Petitioner is a non profit research and advocacy group concerned with nuclear power issues. INPO is a non-profit organization created by the nuclear power industry after the 1979 incident at the Three Mile Island plant. All the utility companies that operate nuclear plants in this countty are members of INPO. INPO does not generate nuclear power itself, nor does it have competitors. INPO's stated mission is to promote the safety and reliability of nuclear plants, which it does by analyzing operating i
'= . . ,
.{, 3 plants and disseminating experiences at nuclear information to its members.
After Three Mile Island, the NRC developed an
" Action Plan" which required nuclear utilities to make sure that their personnel were made aware of new infor-mation about the safety of nuclear power on a regular basis. Because it would be prohibitively expensive for every nuclear plant to develop its own procedures for monitoring all safety information in the industry, INPO established a clearinghouse to perform that function, known as the Significant Event Evaluation and Information Network ("SEE IN"). Under SEE IN,INPO engineers analyze safety related" events" at nuclear plants, using a broad range of sources, including technical literature, publicly available NRC records, and interviews with plant employees. INPO engineers then rummarize their analyses and make recommendatians for corrective actions in SEE IN reports, which are the records at issue in this case.
INPO distributes the SEE IN reports to all operators of nuclear power plants in this country, and also to engineering and construction firms, to an insurer for the industry, and to consultants and contractors. This wide distribution is central to the SEE IN program, which is intended to inform employees in the nuclear industry of safety experiences at every nuclear plant, and thus to satisfy the requirements of the NRC's Three Mile Island Action Plan. In 1982, the NRC endorsed SEE-lN as a way for nuclear licensees to satisfy their obligations tmder the Action Plan. '
The NRC also entered into an agreement with INPO, under which INPO agreed to provide the SEE IN reports to the NRC, and the NRC agreed not to release the SEE-IN reports to the public. The NRC uses the SEE-IN reports to make sure that licensees are in fact making their employees aware of new safety information, as
t required by the Action Plan. The NRC also uses the SEE IN reports to check the completeness and accuracy of other, similar troorts that nuclear licensees are required to submit to the NRC within thirty days of any safety-related event, khown as Licensee Event Reports
("LERs"). LERs are supposed to give the NRC a full
- understanding of the underlying causes of safety events,
, and also to explain corrective actions planned by the licensee. See generally 10 C.F.R. i 50.73; 48 Fed. Reg.
33,850 (1983). The NRC routinely discloses LERs to the public.
l In 1984, petitioner submitted a FOIA request to the NRC for the SEE IN reports. The NRC withheld the re-ports under Exemption 4 of the FOIA, 5 U.S.C. 6 552(b)(4), which exempts from disclosure " trade secrets and commercial or financial information obtained from a person and privileged or confidential." The NRC did not argue that the reports contained trade secrets or privileged information, but maintained that they contained "com-mercial . . . confidential" information, even though the reports include no competitively sensitive sales or marketing data and are shared with everyone in the nuclear industry.
Under the test then governing Exemption 4,informa-tion could be withheld as " confidential" only upon a showing that " disclosure of the information is likely . . . to impair the Government's ability to obtain necessary infor-mation in the future; or . . . to cause substantial harm to the competitive position of the person from whom the information was obtained." NationalParks & Consenation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir.1974)
(footnote omined). The NRC did not argue that dis-closure would cause competitive hann to either INPO or its members, but rather that the SEE IN reports were exempt under the governmental " impairment" prong of the National Parks test. According to the NRC, INPO had
i threatened to withhold the reports from the NRC in the future if the NRC released them, and even if the NRC could obtain the reports, the possibility of disclosure might impair the quality of those reports in the future.
- 2. First District Court and Appellate Proceedings.
Petitioner filed suit against the NRC, and both parties moved for summary judgment. Petitioner argued that, even if INPO refused to provide the reports to the NRC in the future, that could not impair the NRC's ability to obtain the reports, because INPO would continue to pro-vide the reports to its licensee members, and the NRC had ample power to obtain the reports directly from the licensees. The District Court acknowledged petitioner's argument but concluded that disclosure of the reports would impair the NRC's ability to obtain them in the future, because the reports were currently provided
" voluntarily" to the NRC by INPO. Pet. App. 40a.'
The Court of Appeals vacated and remanded. Pet.
App. 42a 64a. The Court rejected the District Court's conclusion that the voluntary character of the submission, by itself, could determine whether the reports were exempt from disclosure. According to the Court of Appeals, a rule of decision resting solely on the voluntary involuntary distinction would be inconsistent with the requirement established in the case law of Exemption 4, including National Parks, that an agency must provide a " detailed justification" of the reason why disclosure would impair its 3
Petitioner also' argued that the SEE IN reports did not contain
" commercial" information because INPO was a not for profit entity, and because the information bore no relation to sales, purchases, or enhanges of goods or services. He District Coun rejected this argument, relying on Circuit precedent. Pet. App. 38a (citing Public Citi:en Heahh Research Group v. FDA,704 F.2d 1280,1290 (D.C. Cir.
1983)). De Coun of Appeals affirmed this conclusion in the first panel opinion, Pet. App. 47a, and on rehearing en banc, Pet. App.
19a.
6 ability to obtain the information in the future. Pet. App.
52a. In particular, the Court observed that, under its prior decisions, the agency's ability to compel disclosure of information that it receives voluntarily may be sufficient to ensure that its access to the information would not be impaired in the future. Pct. App. 53a, n. 26. Indeed, as the ^
Court noted, the NRC admitted that it would be able to obtain the reports by requiring their submission directly from the licensees. Pet. App. 52a.
l However, the Court of Appeals found plausible the
! NRC's argument that, even if it could obtain the reports by compulsory means, the usefulness of the reports might decline, because nuclear plant employees, knowing the reports would be disclosed, might be less candid in their l discussions with INPO analysts about the possible causes of events at their plants. Pet. App. 56a 57a. Because
' there was no evidence in the record that the quality of the SEE IN reports would decline as a result of disclosure, the Court remanded for further proceedings on that issue.
The Court also ruled that the NRC could prevail if it i showed that disclosure would impair the efficiency of its operations, for example, if the process of compelling submission of the SEE IN reports directly from the licensees would be too burdensome. Pet. App. 59a 61a.
Circuit Judge Buckley dissented from the remand, and would have ruled that the SEE IN reports were exempt from disclosure solely because they were submitted to the NRC voluntarily. He concluded that Exemption 4 was intended to encourage cooperation by parties who are not ,
to obliged to provide information to the Government, and' '
that the " impairment" prong of the National Parks test should be deemed satisfied whenever disclosure would interfere with the agency's ability to obtain information on a voluntary basis. Pet. App. 62a 63a.
- 3. Remand and Second Appeal. On remand, INPO intervened as a defendant, and all parties moved for l
y 7
summary judgment. The NRC and INPO argued princi-pally that nuclear plant employees would no longer be forthright with INPO analysts if they knew that the SEE-IN reports would be disclosed to the public, and this lack of candor would impair the quality of those analysts' reports and their usefulness to the NRC. At oral argu.
ment, the District Court characterized the respondents' affidavits as conclusory on this point, and suggested that respondents should submit evidence that INPO analysts give express or implied promises of confidentiality to .
nuclear plant employees, or that employees rely on the limited disclosure of the reports.
Respondents never submitted this evidence. Never-theless, the District Court again granted summary judgment, under the separate theory that the NRC's efficiency of operations would be impaired by disclosure.
The District Court reasoned that disclosure might damage the friendly " symbiosis in the relationship between NRC and INPO" and would make the NRC and INPO "[i}f not outright antagonists, . . . at best . . . wary allies." Pet.
App. 72a.
The Court of Appeals again reversed and remanded because of the lack of evidence supporting respondents' impairment argument. Pet. App. 73a.90a. The panel first rejected the District Court's reasoning that the daruption of the friendly relationship between the NRC and INPO warranted an exemption on the theory that acrimony '
would impair the NRC's efficiency of operations. The I panel noted that, if that theory were correct, a submitter could essentially ' dictate whether information was confi-dential for purposes of the FOIA by threatening non-cooperation in the future, which would conflict with the accepted principle that " 'the test for confidentiality is an objective one.' " Pet. App. 83a (quoting Narfonal Parks, 498 F.2d at 766).
- _=---_.___
=-__
8 As for the argument that disclosure would inhibit nuclear plant employees from speaking candidly with INPO analysts, the panel found nothing in the record to support such a finding. In particular, the panel noted the complete absence of any evi.lence that INPO analysts give promises of confidentiality to plant employees. The panel also found no evidence that the SEE IN reports could reveal the identity of any nuclear plant employees if the reports were released to the public, as the reports do not identify the sources of information on which they are based. Pet. App. 86a 87a & n. 8.
In a concuiTing opinion, Judge Randolph, joined by Judge Williams, agreed that the record could not support the District Court's grant of summaryjudgment under the
" impairment" prong of the National Parks test, but expressed doubt that National Parks had been correctly i decided. Pet. App. 89a 90a. Judge Randolph stated that, if the matter were one of first impression, he would reject the National Parks test and would conclude that infor.
mation was " confidential," and therefore exempt from
- disclosure, as long as it was not " publicly disseminated,"
I whether or not disclosure would cause any identifiable harm to the Government or to the submitter of the infor-mation. Judge Randolph observed, however, that the D.C.
Circui thad endorsed National Parks many times, even in a prior decision in the same case, and that he was barred by both the law of the circuit and the law of the case from following either what he considered to be the plain language of the statute or Judge Buckley's dissent in the prior decision.
- 4. Proceedings En Banc. Respondents filed petitions for rehearing and suggestions for rehearing en banc, urging the Court of Appeals to overrule National Parks and to adopt a broader construction of Exemption 4. Respond-ents argued that htformation should be exempt from disclosure as " confidential" whenever it would not i
'! v L
9
" customarily" be disclosed to the public, whether or not i disclosure would cause any identifiable harm to the '
Government or the submitter. Neither respondent suggested that the Court of Appeals should adopt the ,
construction proposed in Judge Buckley's earlier dissent, '
viz., that information is confidential if it is submitted voluntarily to the Government.
j The Court of Appeals vacated the panel decision and granted rehearing en bane to reconsider National Parks.2 Pet. App. 91a. In their en bane briefs, both respondents argued again that the Court should overrule National Parks and hold that information is always confidential ifit .
is not customarily disclosed to the public by the submitter. .
Again, neither respondent argued in favor of the position taken in Judge Buckley's dissenting opinion on the first appeal.
On reheering, a divided en banc Court, per Judge Buckley, affirmed the District Court. Pet. App. la.20a.
The Court first rejected respondents' suggestion that National Parks be entirely ovenuled. Applying the principles of stare decisis outlined by this Court in Patterson v. AlcLean Credit Union,491 U.S.164 (1989), the ,
Court concluded that respondents had failed to demon.
strate any of' the considerations that could justify overturning National Parks. Observing that seven other Circuits had adopted the National Parks test for Exemp-tion 4 cases, the Court of Appeals concluded that "[flar from being overtaken by the tide of recent judicial developments, National Parks, it seems, has ridden its crest." Pet. App.12a. The Court also noted that Congress had adopted the National Parks test when it enacted a similar business records exemption to the 2
1 hen-Circuit Judge Thomas participated in the decision to grant rehearing en banc but was elevated to this Coun before oral argument.
_______m_,_____-------------" - " - " - " ~ ~ ~ ' ' - ' ' '
10 Government in the Sunshine Act,5 U.S.C. I 552b(c)(4),
which is closely related to the FOIA. Pet. App.12a. The Court further rejected respondents' contention that National Parks had proven. unworkable in application, and it dismissed cases cited by the respondents as merely illustrating difficulties that arise "wherever judicial lines are drawn." Pet. App.13a.
Nevertheless, the Court dramatically " confined" the National Parks test by limiting its application to information that submitters are required to give to the Government. Pet. App.2a,13a 20a. Forinformation that submitters supply " voluntarily" to the Government but do not " customarily" disclose to the public, the Court adopted a new categorical rule that all such information is
" confidential," and therefore exempt from disclosure under Exemption 4, whether or not its disclosure would
- cause any demonstrable harm to either the Government or the submitter. Indeed, the Court observed that, in such cases, the courts should respect the private interest in withholdir.g information from the public "for whatever reason." Pet. App.16a.
The Court did not, however, provide any guidance as to when information should be deemed to have been provided " voluntarily" to the Government, except to conclude that the test for voluntariness was met in this case because submission of the SEE IN reports had not been legally compelled, even though the NRC had the statutory authority to compel the licensees to submit the reports, should it wish to exercise that authority. The Court also rejected petitioner's argument that a categorical rule exempting voluntary submissions would encourage agency behavior in conflict with the FOIA's mandate for disclosure, by allowing agencies to agree to accept information on a " voluntary" basis on condition that it be withheld from the public, even when the agencies could,
_ V- .
N 11 and would, compel submission of the information without difficulty. Pet. App.19a.
For information that is required to be submitted, the Court also reformulated the " impairment" prong of its prior test. Although the Court recognized that the Government's access to information cannot be impaired if production of the information is compelled,it speculated that, in some circumstances, disclosure could affect the reliability of the compelled data. Therefore, the Court ruled that, when dealing with a FOIA request for infor-mation that a submitter is required to provide, the impairment inquiry should focus on the possible effect of disclosure on the quality of the information. Pet. App.
15a 16a.
Judge Randolph, joined by Judges Silberman and Sentelle, filed a concurring opinion, in which they concluded that National Path had been wrongly decided, but that respondents had not made the showing necessary to overrule it, given its near universal adoption in the other Circuits. Pet. App. 23a. They also concluded that, although National Parb should not be overruled,it should not be applied to cases invoMng information submitted voluntarily to the Government. See Pet. App. 23a 24a.
Judge Ruth Ginsburg, joined by Chief Judge Mikva and Judges Wald and Edwards, filed a dissenting opinion, s Pet. App. 25a 33a. The dissent observed that, by removing all voluntary submissions from the NationalPath test, the majority had "substantially revise [d)" the law of the Circuit and "diminishe[d] as well sister circuit case law patterned on [the) National Parb decision." Pet. App. 25a. The dissent pointed out that no other court had concluded that voluntarily submitted information was governed by a dif-ferent test than National Parh, and that the First Circuit and District Courts in the D.C. Circuit had applied National Parh to information furnished to the Govern-ment voluntarily. Pet. App. 28a 29a.
_ . _ _ . _ . . . , . . . M
j 12 The dissent also criticized the majority opinion as unfaithful to both National Parks and the Congress'
" unmistakably clear direction" in favor of disclosure in the FOIA. Pet. App. 30a. After reviewing the NationalParkt decision, the dissent pointed out that the National Parkt panel had concluded that the " impairment" prong was not applicable to information required to be submitted to the Government, and therefore, that panel must have intended the " impairment" prong to have "its principal utility in cases of information voluntarily submitted." Pet. App.
28a. The dissent also argued that the majority's new test was not objective, because it provides for no judicial check on the reasonableness of the submitter's claim that the information was confidential, and bears no relation to the Congress' particular purpose in enacting Exemption 4, the protection of competitively sensitive information. Pet.
App. 26a 27a. According to the dissent, the raajority's rule encourages agencies to follow the path of least resistance and accede to submitters' requests for confidentiality, in sharp conflict with the FOIA's mandate i
for disclosure. Pet. App. 30a 31a.
REASONS FOR GRANTING THE WRIT The Decision Below Raises Important Questions of Interpretation of the Freedom of Information Act That Should be Settled by This Court,It Confilets With Other Appellate Decisions, and It Creates Serious Problems in the Adminstration of the Act.
This Court has never construed Exemption 4 of the
?
FOIA, but with impressive unanimity, all the Circuits that i
i have done so before this case have adopted the National
'l 1
E e ~t:
t
. 13 e .
Parks test first enunciated by the D.C Ciwit in 1974.8 Congress has also embraced National Parks by adopting
. that test for at least four other statutes that incorporate, or are worded similarly to, Exemption 4 of the FOIA: the Government in the Sunshine Act,5 U.S.C i 552b(e)(4),
see 122 Cong. Rec. 24,181 (1976), S. Conf. Rep. No.1178, 94th Cong.,2d Sess.15 (1976), H.R. Rep. No. 880, pt. I, 94th Cong., 2d Sess.10 (1976); the Federal Advisory Committee Act, 5 U.S.C App. I 10; the Federal Trade Commission Act,15 U.S.C i 46(f), see H.R. Conf. Rep.
No. 917, 96th Cong.,2d Sess. 28 (1980), S. Rep. No. 500, 96th Cong.,1st Sess. 10-12 (1979); and the Consumer Product Safety Act,15 U.S.C 6 2055(a)(2),see H.R. Conf.
Rep. No. 208, 97th Cong.,1st Sess. 877(1981). For eighteen years, National Parks has worked well in the agencies and the courts, and the Government has never sought cerriorari to have it overruled.
4 The decision below destroys the uniformity of this settled construction of Exemption 4 and introduces an arbitrary and unworkab e distinction between voluntary and mandatory submissions. This distinction was not
- Set 9 to 5 Org. for Women Ofice Workers v. Bd. of Governors, 721 F.2d 1,8 (1st Cir.1983); Orion Research, Inc v. EPA,615 F.2d
$51,553 (1st Cir.), cert denied,449 US. 833 (1980); American Airlines
- v. National Mediation Bd., 588 F.2d 863, 871 (2d Cir.1978);
Continental Stock Transfer & Trust Ca v. SEC,566 F.2d 373. 375 (2d Cir.1977); Acumenics Research & Technolog v. Department ofJustice, 843 F.2d 800, 807 (4th Cir.1988); Westinghotue Elec Corp. v.
Schlesinger,542 F.2d'1190,1207 n.55 (4th Cir.1976), cert denied,431 US. 924 (1977); Sharyland Water Supply Corp. v. Block,755 F.2d 397, 399 (5th Cir.), cert. denied,421 US.1137 (1985); Shermeo Indus. v.
Stactary ofAir Force,613 F.2d 1314,1317 (5th Cir.1980); Continental Oil Co. v. EPC,519 F.2d 31,35 (5th Cir.1975), cert denied,425 US.
971 (1976); Generst Elec Ca v. NRC,750 F.2d 1394,1402 03 (7th Cir.
1984); Pad)ic Architects & Eng'rs v. Depanment ofState,906 F.2d 1345, 1347 (91h Cir.1990); Anderson v. NHS,907 F.2d 936,946 (10th Cir.
1990).
1
i 14
\
i advanced by any of the parties, has never been thought to be dispositive before, has never been mentioned in decisions of the other Courts of Appeals adopting or applying National Parks, and is contrar/ to the decision of the First Circuit in 9 to 5 Organization for Women Office Workers v. Board of Gowrnors of the Federal Reserve System, 721 F.2d 1 (1983). Moreover, the Court of Appeals' rule is fundamentally inconsistent with the FO1A's overarching goal of disclosing important information about the operations of the Govemment, unless one of Congress' objective criteria for withholding records is satisfied.
1.
The ill Defined Nature of the Voluntary / Mandatory Disednerion. A major defect in the Court of Appeals' i
decision is that it draws an arbitrary line between mandatory and voluntary submissions of information to the l Government, while providing no guidance for distin-guishing between the two. The Court incorrectly assumed that all submissions could be neatly divided into two categories.
Its rigid formulation does not reflect the reality of the many means by which governmental agencies obtain information; in fact, it is often unclear whether information obtained by the Government from private parties is submitted under compulsion or voluntarily. The agency may believe that regulated entities are legally required to provide certain information, but those entities may disagree.
Thus, in one common scenario, an agency sends a sub-poena duces recum to a company, which threatens to contest the subpoena on the grounds that it is overbroad and beyond the agency's statutory authority, but ultimately agrees to provide the information, on condition that the agency withdraw the subpoena. See, e.g., General Electric Co. v. NRC, 750 F.2d 1394,1396 (7th Cir.1984) (NRC subpoena during licensing proceeding); see also 15 U.S.C.
61401(b),(c) (Secretary of Transportation may require
[.
8 15 A
inspection and production of documents, but only reason-ably, and as relevant to certain purposes). Even the agency's regulations may reflect ambivalence on whether submission of information is mandatory. For example, EPA regulations implementing the Toxic Substances Control Act state' that " EPA may, by letter, request a person to submit" certain information, but that "[i]f the requested submissions are not made, EPA may subpoena them." 40 CF.R. f 716.40. Whether information obtained in any of these circumstances is submitted
" voluntarily"is far from clear,na d courts hearing FOIA cases seeking such information will now routinely have to decide that issue.
The Court of Appeals' mandatory / voluntary distinction fails to provide any guidance in many circumstances. For i example, the Government requires information to be sub-mitted with many different kinds of applications, e.g., for approval to place new drugs on the market, for permission to transport toxic substances and pesticides, for federal grant funedtro.r loan guarantees, and for procurement contracts. E.g.,71..;.S.C i 136a(c) (pesticides); 15 U.S.C.
6 2604 (toxic substances); 21 U.S.C i 355 (new drugs).
Since nothing compels any person to submit any of these applications, or to constmet a auclear power plant, or to make a public offering of securities, or to seek federal employment, all information submitted on such occasions is provided " voluntarily,"in one sense, even if regulations require submission ofinformation whenever these benefits are sought. See also Washington Post Co. v. HHS, 865 F.2d 320 (D.C Cir.1989) (financial interest forms required of consultants to federal government); Teich.v.
FDA,751 F. Supp. 243,246 (D.D.C.1990) (animal studies submitted to FDA in support of application for approval ofinjectable silicone). Moreover, applicants often provide information beyond that strictly required to increase the chances of their applications being granted, and the Government often asks applicants to submit information
r
) 16 I
to make their applications more complete. See, e.g.,21 C.F.R. Il 314.60, 314.102 (discussing amendments and supplementations to new drug applications submitted to FDA); 7 U.S.C I 136a(c)(2),40 CF.R. 6152.105 (EPA may ask for more information on pesticide registration applications). Whether such additional information is being provided voluntarily within the meaning of the D.C Circuit's new test is also unclear.
The Court of Appeals' rule may create the greatest confusion in the area of government contracts, especially negotiated contracts. Under the Federal Acquisition Regulations System ("FARS"), agencies procuring mater-ials through negotiated contracts may specify requirements for initial offers in their solicitations for proposals. But by the very nature of negotiated contracts, offerors are likely j to supplement their initial proposals with further infor-l mation, and the FARS recognizes that offerors should have the opportunity to submit revised technical and price information. See 48 C.F.R.15.610. Yet the Court of Appeals' decision provides no method for determining which information obtained in the contracting process is submitted voluntarily and which is not, and, more significantly, there may never be a predictable or realistic basis for making such a determination.
In this area, the effect of the decision below can already be seen. In a " reverse.FOIA" lawsuit filed by a Government contractor to enjoin the Government from disclosing information, one court has ordered the Air Force not to release option price information in a procurement contract.' The Court concluded that the
' " Reverse.FOIA" suits are actions brought by companies who submit information to the Government to prevent the disclosure of that information by th6 Government. Revern FO!A suits usualty allege that disclosure of the information would be "not in acesrdance (continued .)
N g
17 price information was exempt from disclosure under the D.C. Circuit's new test because the contractor had submitted the bid to the Air Force ofits own volition, and thus the price information in the accepted contract was submitted voluntarily by the bidder. Transcript of Motions Hcaring at 35, McDonnell Douglas Corp. v. Rice, No. 92 2211 JHG (D.D.C.) (hearing held Sept. 30, 1992, transcript filed Oct.1,1992).
Furthermore, any information that the Government requires its contractors to provide even after formation of a contract, as a condition of contracting, might also be considered " voluntary," under the reasoning that con-tracting with the Government is voluntary, and private e parties could avoid the obligation by declining to do business with the Government. The Government obtains extensive reports on matters of significant public interest from its contractors, all of which could be withdrawn from the public. See, e.g., 41 C.F.R. I 60-1.7 (equal employ.
ment oppo-tunity reports required from all federal con-tractors); Miami Hemld Pub. Co. v. Small Business Admin.,
670 F.2d 610 (5th Cir. Unit B 1982) (reports on federally guarantced 1oans); indian Law Resource Ctr. v. Department of Interior, 477 F. Supp.144,146 (D.D.C.1979) (Indian tribe's law finn's billing statements required for dis-bursemeat of funds to tribe); Comstock int'l (U.S.A.) v.
Expon impon Bank of the United States,464 F. Supp. 804, 809 (D.D.C.1979) (progress reports for subsidized construction contract).
For these reasons, courts following National Parks eschewed a formalistic line between voluntary and man-datory submissions and applied a straightforward
- *( . continued)
I with law," 5 U.S.C. 6 706(2)(a), because disclosure would violate the Trade Secrets Act,18 U.S.C. I 1905, and is not required under the FOtA. See generally Chrysler Corp. n Brosn,441 U.S. 281 (1979).
N 18 i
) " impairment" tes.t to all information obtained by the Government that was not competitively sensiJ *e. Thus, in 9 to 5, supra, the First Circuit ordered a remand under National Parkr to de' ermine whether any specific govern.
mental interest proy led by Exemption 4, including the l, Government's accer. to necessary information, would bc i, impaired by disclosure of regional salary information l which private businesses shared with the Federal Reserve
! Bank of Boston, and with each other. Although the sub-( mission of that information was plainly voluntary (there was no suggestion that the Federal Reserve Bank had the q power to compelit), the Court apparently did not regard y that point significant enough to mention. Yet if the First Circuit had applied the new test announced by the D.C.
Circuit in the decision below, a remand would have been a unnecessary because the voluntary nature of the sub-
- nission tion exemptwould have been sufficient to make the informa-from disclosure.
Previously, courts in the D.C. Circuit agreed that, even if information was obtained " voluntarily," that information might not be exempt from the FOIA if the agency could compel its submission.
See Pet. App. 53a, 85a; Teich, supra, at 251 (ordering disclosure, because it was "incon-ceivable" that FDA could not, and would not, compel submission of evidence showing that silicone gel implants should be removed from market); Comstock, supra, at 809 (pointing out that agencies can always make reporting requirements more specific). Applying the ' impairment" prong of National Parks, those courts reasoned that the Government's ability to obtain information would not be impaired if the Government could compel submission of the information without undue difficulty. Pet. App. 53a n.26.
This is not to say that the voluntary character of the submission was deemed completely irrelevant. Under the National Parks test, it was well established that if the
~.%_
. ~ e -
s
- u. - - .
c :.
h V
19 Government had no ability to compel submission of necessary information, or if the process of compelling it would be overly burdensome, then the information would be exempt from disclosure. See Pet. App. 61a; Bowen v.
FDA,925 F.2d 1225,1228 (9th Cir.1991); 71mken Co. v.
United States Customs Service, 531 F. Supp.194,198 (D.D.C.1981). In addition, courts applyingNationalParks concluded that, even if disclosure would not completely preclude the Government from obtaining necessary infor-mation in the future, when disclosure would seriously diminish the quality or completeness of the information, '
that information could be exempt. See Pet. App. 53a 57a, 85a; Washirgton Post Co. v. HHS, 690 F.2d 252, 268 69 (D.C. Cir.1982); indian Law Resource Center, supra, at 148.
Under NationalParks, therefore, the courts focused on whether disclosure would cause an identifiable harm to the Government's information gathering abilities. This unitary but fact-:enti9e inquiry under the " impairment" prong of National Parks has worked well in practice, yet the D.C.
Circuit has chosen to replace it with a new test that will assuredly be a ground for frequent litigation by both ,
requesters and submitters. This significant departure from '
prior case law, and the problems that the new test will create, warrant this Court's review. '
- 2. 7h incentive for Agencies To Evade the FOIA by Accepting Informal *on Voluntarily.
The decision below should also be reviewed because it will lead to results that are fundamentally inconsistent with this Court's often-a repeated admonitions that "'[t]he mandate of the FOIA calls for broad disclosure of Government records,"' and that "FO1A exemptions are to be narrowly construed."
Department of Justice v. Julian, 486.U.S.1, 8 (1988)
(citations omitted); accordDepartment ofAirForce v. Rose, 425 U.S. 352, 360-62 (1976). Far from ensuring broad access to agency records, the Court of Appeals' new rule
. . , . , L_
i
i i
i i t *
( 20 I )
i 1
i of the FOIA by enabling them to withho under a claim that the information was
[ tarily." Agencies may be tempted to under'ninel the effec.
j, tiveness of the FOIA by agreeing to accept information 1
i a " voluntary" basis, even when they could, and would The decision below effectively permits 1
i
\
U for exemptions from the FOIA.8 The question is not whaber agencies and submitters would " conspire" to keep information from the public, as the Court of Appeals suggested, Pet. App.19a. No such nefarious purpose need be attributed to the agencies.
the recognition that no agency has its files to the public and subject itself to scrutin i
possible criticism or embarrassment. Thissense commony and insight FOIA. was fundamental to Congress' decision to enact (1965).
See S. Rep. No. 813, 89th Cong.,1st Sess. 3 Congress' overarching objective was to limit Court of Appeals has done. Thus, Congr legislative judgment confining the agencies' authority to withhold re i
the history of the NRC. Inns1980-81, n tuting the N required ticer. sees to fie reports about com d
plants. See 46 Fed. Reg. 3541 (1981); 45 Fed. Reg. 6793 NRC dropped plans for such a system when INPO voluntee manage a similar system privately and assured the NRC that it w have access to the system. See 46 Fed. .
Reg. 49,34 1981)
Although required to be submitted, it cannot see th INPO-operated is submitted voluntarily. system, because the information on the IN
\
\
i
~ ' - ~ _--- ~
v 21 narrow and clearly delineated statutory exemptions. See Rose, 425 U.S. at 360-61 '
The decision below also threatens to reduce the quality of information about Government regulation that remains available to the public, because it encourages regulated entities to provide Government agencies with only minimal data that will be made public, while sub-mitting far more significant information in secret. This case, in fact, illustrates that very danger. As mentioned supra, p. 4, the NRC uses the SEE IN reports to verify the completeness and accuracy of the descriptions of safety-related " events" at nuclear power plants in the publicly disclosed LERs, which licensees are required to submit to ,
the NRC. But if licensees realize that they can tell the .
NRC the "real story" about events at their plants in the secret SEE IN reports, their public LERs will inevitably become more and more sketchy, revealing less to the public about the important issue of safety at nuclear power plants. Under the Court of Appeals' new test, agencies' regulatory decisions will be based increasingly on secret information rather than public information, and citizens will have a diminished understanding of agency actions.
Thus, the Court of Appeals' decision creates a mechanism by which agencies can insulate their decision making from public monitoring and accountability.
- To reinforce this point, Congress amended Exemption 3 in 1976 to overrule this Court's conclusion in Admudstrator, FAA v. Robenson, 422 U.S 255,266 (1975), that the FOIA did not supersede earlier statutes affording agencies "a broad degree of discretion on what information is to be [ withheld)." Congress overruled Robenson because it was perceived as giving agencies "canft) blanche to withhold any information (they please)." H.R. Rep. No. 880, pt.1, 94th Cong.,24 Sess. 23 (1976). The thrust of the FOIA as a whole, including revised Exemption 3,"is to assure that basic policy decisions on governmental secrecy be made by the 1.egislative rather than the Executive Branch American /cwsh Congress v. Kreps, $74 F.2d 624, 628 & n.34 (D.C. Cir.1978),
1 b
t I 22 I In this regard, the importance of the decision bel
\
evidence that firms have distribute to the public, see Public Citiren Health Research FDA, 704 F.2d 1280 (D.C Cir.1983); Teich, sup ticipated in illegal boycotts, see Green v. Departme Commerce, 468 F. Supp. 691 of entertainment and lobbying expe(nses to theD.D.C.19 Government contracts, see Common Cause v.public unde Department ofAir Force,1 GDS 180,162 (D.D.C.1981), or en in price fixing, cf. 9 to 5, supra, at 13 (Breyer J dissenting). .,
' these matters is of the highest public, action or inaction, the public cannot conclusion as to whether the Government proper course. Yet the decision below Irnites agencies keep this material secret, by choosing to accept cr information about public health and safety y "voluntar agencies, to close their files as they antithetical to the principles that led to the enactme the FOIA and requires review by this Court The decision below also warrants in rev industry and has no bearing on any c position, it has adopted a construction entirely unrela to the purpose of Exemption 4 viz., theofprotection competitively sensitive business ,informatio...
At heart, Exemption 4 " protects persons who submit financ commercial data to government agencies from the c titive disadvantages which would result from its p .
cation." National Parks, 498 F.2d at 768. There is no suggestion, in either the text or the legislative history the exemption, that Congress intended onfi-the word "c dential" to include a situation in which an indus mm ,a.ew
23 consortium distributes safety data to all participants in the industry, some of whom may be in potential competition 3 with each other.
Part of the problem with the decision below is its espansion of Circuit precedent which, in turn, construed the statutory term " commercial" too broadly. See Pet.
App.19a,47a; Public Citizen Health Research Group v.
FDA,704 F.2d at 1290. The Court of Appeals read the term " commercial" to include information that does not relate to the sale, purchase, or exchange of goods or services, or to the financial or marketing position of a company. In combination with its overbroad interpre-tation of the word " confidential," the Court of Appeals has expanded the scope of the exemption far beyond Congress' design for protection of business secrets, to include information circulating widely through an entire industry, even to competitors. This Court should adopt a construction of Exemption 4 more consonant with Con-gress' objective, either by constming the word "commer-cial" narrowly, or by limiting the exemption as a whole to competitively sensitive information.
- 4. The Reverse FOIA Problem. Finally, the Court of Appeals' decision warrants review because it has opened up the possibility that the Government might be prohibited from disclosing information that is submitted voluntarily, even if the Government concludes that disclosure of the information promotes the public interest, and even if the information is not competitively sensitive. This possibility could deal a devastating blow to the public's ability to monitor agency o'perations.
Although it has long been settled that submitters of information can maintain " reverse FOIA" actions to prevent the disclosure of competitively sensitive infor-mation, see Chrysler Corp. v. Brown, supra, under National Parks the prevailing view was that submitters could not successfully prevent the disclosure of information that was I - -- - - - _ _ _ _ _ ____ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _
i s
24 i
l- ment's access to the information w result of disclosure. As Judge Posner pointed ou Government is always likely to " lend [] a sympa e
p to claims that disclosing a document will make i i get information in the future," GeneralElectric ,
g{
will not prevent it from obtaining n the future,its conclusion can not be challenged
" impairment" prong of National Parks e u
g .
5 '
{ itly recognized "a pn'vate interestBut in the -
confidentiality ment ofinformation on a voluntary basis." that is provided the h
voluntarily provides informati li successfully prevent disclosure of the information in rev:rse FOIA action, even if the information is not co petitively sensitive. If so, then the Court of Appea effected a revolution in the law, for until now it h the universal understanding that agencies ha ve wide '
discretion to release information that y is not comp sensitive. See CNA Fin. Corp. v. Donovan,830 F.2 1155 56 (D.C. Cir.1987); National Org. for Worn SocialSecurityAdmin.,736 General Electric Co., supra. . F.2d 727,745
- (D.
From at least one recent case, it appears that th precisely the effect of the decision below. In AfcDo Douglas Corp. v. Rice, supra, a District Court en Air Force from disclosing the option price paid to tary contractor for equipment. Because the milit ary voluntarily, the District Court reaso price was also submitted " voluntarily." Transcript of MotionsthatHearing at 35. Accordingly, the District concluded the option price was exempt from 9
. ghupw -
g + - * '
e M %
- - - _ _ _ _ _ _ _ _ _ . _ _ . . __ - - - - - - - - ~ ^
l
? B disclosure under the Court of Appeals' new construction of Exemption 4 and that the contractor could prevent disclosure of the price by the Government.
The District Court arrived at this conclusion notwith-standing the federal Government's long standing practice, codified in regulations and heretofore ratified by the lower coutts, of releasing the maximum possible information about Government contracts to the public,in recognition of the important public interest in monitoring Government contracting procedures. Sec 48 C.F.R. 5.401(b),14.4081, 205.303 (disclosure of contract information); see also
. Pacific Architects & Eng'rs v. Department of State, 906 F.2d 1345 (9th Cir.1990); Acumenics Research & Technology v.
Depanment of Justice, 843 F.2d 800 (4th Cir.1988)
(unsuccessful reverse FOIA suits). Indeed, the District Court in McDonnell Douglas observed that the probable effect of the Court of Appeals' new test is to render invalid many of the Government's regulations that encourage disclosure of infonnation about Government contracting. Transcript of Motions Hearing at 38. This decision demonstrates the far reaching and deleterious effects of the decision below on the public's ability to hold agencies accountable for their actions.
- For eighteen years, the National Parks test governed all commercial and financial information submitted to the Government by outside persons. Its universal adoption by other courts and its incorporation by Congress into other statutes demonstrate that the test has worked tolerably well. The Court of Appeals mistakenly believed that it' was simplifying matters by confining the reach of National Parks, but in fact it has greatly complicated the law of the FOIA, and it has left agencies, requesters, and submitters with a test that is much more complicated and difficult to apply. Moreover, the Court of Appeals significantly
> 26
}*
health and safety available to the p 1
' have prohibited agencies from disclosing important i mation when they conclude that the public interest wa rants such disclosure. Because of the significance of the decision below for the administration of the FOIA, an for public access to information generally, the writ o certiorari should be granted.
CONCLUSION The writ of certiomri shou'd be granted.
i i' Respectfully submitted, Paul R Q. Wolfson (Counsel of Record)
David C. Vladeck Alan B. Morrison Public Citizen Utigation Group 2000 P Street, N.W., Suite 700 Washington, D.C. 20036 (202) 833 3000 Eric R. Glitzenstein Harmon, Curran, Gallagher
& Spielberg 2001 S Street, N.W., Suite 430 Washington, D.C. 20009 (202) 326 3500 Attorneys for Petitioner December 18,1992
-e.e<
WW'*
l No. 92
=
IN THE
&apreme Gourt of ti le Entteh States OCTOBER TERM,199 a CS 0" A ]
CRITICAL MASS ENERGY Py61ECT' 4 m
. . . = , Petitiong
- v. D: $ m O
NUCLEAR REGULATORY COM, MISSION and F INSTITUTE OF NUCLEAR POWER OPERATIONS, Respondents.
APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Paul R.Q. W fson (Counsel of Record)
David C. Vladeck Alan B. Morrison PublicCitizenUtigationGroup 2000 P Street, N.W., Suite 700 Washington, D.C. 20036 (202) 833 3000 Eric R. Glitzenstein Harmon, Curran, Gallagher &
Spielberg 2001 S Street, N.W., Suite 430 Washington, D.C. 20009 (202) 326 3500 Attorneys for Petitioner December 18,1992
_ _ _ . -_ _ . -_. __ _ _ _ _ _ - .__ _ _ , _ , ____..m __ - _ , . _.. _ __..___.m_ . ., , .-._.-__.m_ _ -_-_.-_ _ _.-_ _ -.r_
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i APPENDIX TABLE OF CONTENTS Page En Banc Court of Appeals' Decision of 8/21/92, Appeal No. 90 5120 . . . . . . . . . . . . . . . . . . . . . la En Banc Court of Appeals Judgment of 8/21/92, Appeal No. 90-5120 . . . . . . . . . . . . . . . . . . . . , 34 a District Court Memorandum and Ordt of 9/26/86, 36a N o. 84-1943 . . . . . . . . . . . . . . . . . . . . . . . . .
Court of Appsals Decision of 9/29/87, Appeal No. 86-5647 . . . . . . . . . . . . . . . . . . . . 42a i
District Court Memorandum and Order of 3/2/90, N o. 84 1943 . . . . . . . . . . . . . . . . . . . . . . . . . . 65 a Court of Appeals Decision of 4/30/91, Appeal No. 90-5120 . . . . . . . . . . . . . . . . . . . . 72a Co .t of Appeals Order of 9/6/91, Appeal No. 90-5120 . . . . . . . . . . . . . . . . . . . . 90a l
Attachment -
Dow v. NRC, Nos. 92-_ & 92- (D.C. Cir.,
filed Dec. 29, 1992)
- 9
, f i
tt l
I IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT c3
'~
r 29 e c';
' SANDRA LONG DOW dba DISPOSABLE }
2 WORKERS OF COMANCHE PEAK STEAM ELECTRIC STATION, and R. MICKY DOW,)
! Petitioners, ) No.
i r i vs. )
l THE UNITED STATES NUCLEAR j REGULATORY COMMISSION, )
l- ; [)
! Respondents. ) "
L PETITION FOR REVIEW
-OF ADMINISTRATIVE ORDEB
! ~
Sandra Long Dow dba Disposable Workers of Comanche Peak Steam L
Electric Station, and R. Micky Dow, hereby petition the Court for review of the order, issued by.the United States Nuclear Regulatory Commi ssion, December 15, 1992, in action numbers 50-446-CPA and 92-668-01-CPA, which denied petitioners'LMotion For Rehearing, peti-i tioners' Motion For In'tervention, and pet i t ioners' Request For Pub-
- j. lic Hearings on Construction Permit Extension, which terminated the
!- proceedings of the Atomic Safety and Licensing Boar'd.
! Respectfully submitted, h D
SANbRA LONG DOW dba piSPOSABLE WORKERS OF COMANCHE PEAK STEAM ELECTRIC STATION, pro so-
' Dept. 368, P.O. Box 19400 1-Austin, Texas 78760-9400
^
512-280-5833 3:
R.MICKYDOW,)O.
Dept. 3 68 , P . p'ro Boxs 19400 o-Austin, Texas 78760-9400 l
L
e- o CERTIFICATE OF SERVICE This is to certif y that a true-and. correct copy of the fore-going was sent to the parties listed below, by regular fi rst class mall, on this the2 O th day of te-\e- , 199 h.
Affiant ML '
T'
\
Janice Moore, Esquire' Charles E. Mullins, Esquire Office of General Counsel-Office of General Counsel' U.S. Nuclear Regulaltory-Comm.
U.S. Nuclear Regulatory Comm.
11555 Rock Pike 11555= Rock Pike RockyiIle, MaryIand .20852 RockyiIIe, MaryIand 20852 ,
George L.-Edgar _ Esquire Mike Kohn Newman-& Holtzinger, P.C. Kohn, Kohn &.Calapinto 1615 L Street. N.W. 517 Florida Avenue, N.W.-
Washington, D.C. 20036 Washington,D.C. 20002 Secretary U.S. Nuclear Regulatory Commission-11555 Rock Pike Rockville, Maryland 20852
)
1
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lfbCD UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: 03'CI
- n W lAh' 00CKL b4G '. '.Lovil:!.
- a
'" t. NC W" Morton B. Margulies, Chairman Dr. James H. carpenter Dr. Peter S. Lam GERVED DEC 1 6 1992 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 December 15, 1992 Station,, Unit 2)
- MEMORANDUM AND - ORDER (Rulina On Intervention Petitions and-Terminatina Proceedina) .
~
2 -
I. INTRODUCTION ~ -
We' .h' ave 'before us for consideration two. joint petitions for le'ive',5to' i tervene and to hold a hearing in :the-g- matter
~d5 tNe'2 F'abruaYy T 3l 1992 request by Texas Utilities .~ .
' Electric e -
Comp'iny '(TeiaslUtilities) to amend Construction, :g, Permit -
CPhR-127 'Oie Comanche Peak Steam ' Electric Station, ,,. ..
NniE2,# ybexter$dirig I the construction completio,n"date . jfrom
.: x ,
August 1, 1992 to August 1, 1995. . In this. Memorandum'and, -
Order we decide to deny the petitions and terminate the
~
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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 for the delay and that the amendment involves no significant hazards consideration. 57 Fed. Reg. 34,323 0:.-
(Aug. 4, 1992). In accordance with Commission practice, if a hearing is ordered a final decision on the extension will avait 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 Staff filed 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 on those pleadings in this Memorandum and Order.
The other joint petition, dated July 28, 1992, was filed in behalf of Sandra Dow Long, R. Micky Dow and
-3 -
Disposable Workers of Comanche 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, 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 by Texas Utilities and Staff ,, In this Memorandum and Order we ,
rule on tne motion. .;
- y .
II. THE APPLICATION ,
By letter -dated . February 3,. ,1992, as, supplemented on March 16, 1992, Texas Utilities requests, pursuant to -10 C.F.R. S 50.55(b), the extension of the construction, ,
completion date of CPPR-127 ~ from At$ gust 1, 1992 to August 1,.
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. 2 , The purpose was to
.> . s . .
allow;the . permit . holder;to : concentrate ,its , resources on completion of, Unit 1.g;However, Unit,1.,was not licensed
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4 until February 1990 and Texas Utilities did not resume l 1
significant design activities f or Unit 2 until June 1990.
The delay was needed to complete construction and startup of i Unit 1.
4 Texas Utilities also relied on the NRC's previous finding of good cause for the suspension of construction of Unit 2 based on allowing concentration of resources for the completion of Unit 1. Staff found good cause for the l
extension 'of the construction permit completion date to
~
August 1, 1992 ' premised on Texas Utilities' justification 4
that suspension of Unit 2 for one year, beginning in. April 1988, would allow it -time to make modifications that may be l
required for Unit 2, based upon knowledge gained from-the-reinspection and corrective action program applied to 1
Unit 1. 53 Fed. Reg. 47,888.
III. PETITIONS FOR INTERVENTION A. The Orr Petition To Intervene
- 1. Requisite' Interest for Standing.
3 The Commission's Rules of Practice provide-that-any person whose interest may be a'f fected by a proceeding and who desires to participate as-a party shall file a written i
e I
- - = . - - - - - - . . - _ . . - - -. ..
e %
petition f or leave to intervene. 10 C.F.R. S 2. 714 (a) (1) .
l Section 2.714 (a) (2) requires that the petition set f ou:-th
. 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. Irene orr, D.I. orr, Joseph J. Macktal, Jr. and S.M.A. Hasan each claim the requisite interest for , standing to intervene in the proceeding under the provisions of 4
10 C.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 ,
produced in an area that would be adversely affected by .
1 normal and accidental releases of radioactive materials from the construction of Unit '.2.and that ;they came within Texas Utilities. rate-base e.. , :: ,-; u , -
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l Joseph J. Macktal, Jr. states that he is a former z, ,;.;
- employee of the Comanche Peak Steam Electric Station JCPSES) and is currently
- seeking reinstatement.*of.his-job. ;He
' asserts that he.has; bee jpersonally $ armed due to management 1 misconduct which has also-contributed 3o the delay:in the,:
4
- - - . .- c.. ..
'i' construction.of Unit 2.: Petitioner; claims.he.was to;be y d4. rect f act witness in a construction permit amendment-
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l proceeding to extend the completion date for Unit 1. The proceeding, Docket No. 50-445-CPA (CPA-1) was settled and i
dismissed in July 1988. He asserts that he has information which is relevant to the determination of Texas Utilities'-
request to extend the Unit 2 completion date. ~
d S.M.A. Hasan, a f ormer engineer employed at the CPSES, states he was to be a fact witness in CPA-1, but because of the payment of hush noney by counsel .for the utility to the intervenor he was precluded from testifying. He claims anj 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 interest for standing. It is clear that~ their claim of residing within 50 miles of Unit 2 provides them with the status required for standing.
. , ' . ; m i 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-Public Service.Co. (Bailly Generating Station, Nuclear 1),
l ALAB-619, 12 NRC 558, 563-565 (1980).
I i
In the foregoing type of case a patitioner may base
- standing on a claim that he or she resides within the geographic zone that might be affected by an accidental release of fission products. Houston Lighting and Power Co.
h
. (South Texas Project, Units 1.and 2), LBP-79-10, 9 NRC 439, t
i 443.(1979). Close proximity._under those circumstances has l
- been deemed to establish the requisite interest for'
- intervention. In such a case, the petitioner need not show i
that the concerns are well founded inJfact.: Distances of as
~
j.
k much as 50 miles have been held to f all within the zone.-
Virginia Efectric and Power Co. .(North Anna Power. Station,
^
I
- Units l' and ' 2) , ALAB-522, 9 NRC 54, " 56 (1979)..
- . :
i The Orrs' claim. that they are' part of Texas Utilities' ra'te base ' doe's not provide.them with'an additional-ground for' standing.. Ecoaomic -concerns of this kind are best ,
~
directed to the - state regulatory body that. has charge of I rate setting -and similar matters. Pubile Service Co. of New
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Hampshire (Seabrook Station, Unit 2), CLI-84-6, 19 NRC 975, 978 (1984).
Texas Utilities and Staff argue that Macktal and Hasan 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 used by the Commission to establish standing to intervene in NRC proceedings. The test requires a -
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 the proceeding.
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613 (1976);
3 Metropolitan Edison Coopany, et 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 ir.minent and is likely to be redressed by a f avorable decision in the proceeding, citing Lujan v. Defenders of
' ~
Wildli.fe , _ U. S . , 112 S.Ct 2130, 2136 (1992).
We agree that Macktal and Hasan have not demonstrated that they have the requisite interest for standing. Not I
1
V. <- ~ n J
having shown that they reside or work within _ close proximity
[
l to the plant they cannot claim, as the_orrs have successfully done, that they are presumed to have the requisite interest f or standing. Under these circumstances l-
! a licensing board will apply judicial concepts of- standing.
i Pebble Springs,' supra. = A petitioner should allege in- an NRC proceeding an injury-in-f act that is within the zone 'of l
l
-interest protected by the Atomic Energy Act of 1956, as q
amended (AEA), or the National Environmental' Policy Act of 1969, as amended (NEPA) . This, Petitioners have- f ailed to l
l- do . - ,
~
i I
.The claim of personal injury.that allegedly-resulted L
from mismanagement was not shown to result from _the proposed-
! extension of the construction-permit completion date..
l
! -; Neither was.it established ,that.the alleged injury.was r protected agains,t under .the AEA or NEPA., . Petitioners '-
grievances :are in the, area of employment rights and would ,
I I
, not;be: redressed by .a . decision , favorable to them on the i issue of. the extension of - the construction date. A desire
. to expose the , alleged mismanagement:-is not..an . injury-in-f act L and does not s.nhance .their position for standing.:
f._. ,
similarly, Petitioners' claim,that .they were denied,the:
right- to appear as. witnesses . in another proceeding to extend p
- the construction completion date of Unit i does nothing to i
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' 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 l testify in the Unit 1 proceeding. Lujan v. Defenders of Wildlife, supra; Dellums v. NRC, 863 F.2d 968, 911 (D.C.
f Cir. 1988).
Hasan's' claim of a financial ~ interest in the l application proceeding does not confer standing under the i
l aegis of the AEA and in the absence of an environmental connection, as here,-under NEPA. Houston Lighting &-Power Co. (Allens: Creek Nuclear Generating Station, Unit 1), ALAB-l -
' 582, 11 NRC 239, 242 (1980).
i No factualoor legal justification was provided to giant Petitioners' standing request on the unsupported claim that they were similarly situated as. the petitioners who were permitted to intervene in the Unit 1 extension proceed!ng.
~
We find that Macktal and Hasan have'not demonstrated that they have the 'requ5 site interesh' for _ s$anding, as provided in 10~C.F.R. S 2.714, and that their petition for
~ intervention and to' hold a hearing should be denied.
~
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. _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ , 4 e .we, m .e--, m g y e ,,
_ . ___ __. - _ _. _ . . . . . _ . _ . . . . . _ . _ _ _ .. -._. . . . _ . __ . .~ - ,_ . .
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' 2. Aspects. !
I i The NRC's Rules cf Practice provide that a petition for i.
leave to intervene should set forth-the specific aspect or.
i aspects of _ the subject matter of the proceeding as to which i .
! petitioner wishes to. intervene. - 10 C.F.R. ' S 2. 714 (a) (2) .
Texas Utilities and Staff in their responses to theLorr petition -asserted that Petitioners were not -entitled :to a i hearing because they had ne.: addressed the aspect ,
1
(
requirements of the regulations.
~
i
- - The issue has been rendered moot _by the filing-by: the i Orrs,of a-supplement to the petition to intervene which-i .
I contains a contention they! propose to litigate. The contention sets forth with particularity aspects of. the l-
' 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.
e , - . .,
1C C.F.R. S 2.714 (a) (2) .
. F.. . .. :- .
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=3. The Orrs' Contention,
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- a. Standards. For Contentions In Construction: :. -
. . . - Permit Extension ~ Proceedings... - '.;,,
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' All contentions must meet the_ requirements of 10 #
i
- C.F.R. $ 2.714 (b) (2) , a: ended . August 11, 1989, which i
provides::
f
l
-(2) Each contention must consist of a specific --
statement of the issue of law or fact to be raised or controverted.. 1:n addition,- the petitioner
- shall provide the f ollowing information with l ~~
respect to each contention:
(i) A brief explanation.of the bases of the ,
i contention.
l (ii)
A concise statement-Lof the alleged facts or expert opinion which_ support the l contention and' on -which .the petitioner
- intends to rely
- in proving'the~
i
' contention.at the, hearing,-together with; references to those ' specific sources and documents;of-which the petitioner is aware and'on'which the'-petitioner-i ,
intends.tofrelyLto establish-those facts -
or expert opinion.
f (iii)' Sufficient information . . . to'show.
' that a genuine dispute exists with the applicant on a material issueLof law-or fact. -This showing:must= include
-references to the specific portions.of
-the application . . ..that the petitioner disputes and the supporting l
reasons for each dispute. . - .
i t
! Further, 10 C.F.lR. 5_ 2.714 (d) L provides"that : contentions shall not be admitted !(i) if the. contention andl. supporting i.
l mater,ialL f ai1, to meet the requirements. of section 2.714 (b) ,
or (ii) shouldith's contention be proven it would: be of no
~ -
consequence in.the proceeding because it would:-not entitle i
l
. petitioner to-relief.-
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In its connents 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.
The petitioner is required to read the pertinent portion of 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 the court stated that "a protestant does not become entitled to an evidentiary hearing merely on request or on a bald or conclusory allegation that such a dispute exists. The protestant must make a minimal showing that f acts are in is 0# dispute thefeby demonstrating that an ' inquiry in depth' appropriate." .
The Commission looks.to'. petitioners to.specifically 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). 25 22 22
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Thescope',ofaconstructionpermitextension-[roceeding
- . - . . .. %c . . . . : m: :: baDr.:;u;3 c. . :. . : ,. _ ;
is limited to direct' challenges to the permit holder's asserted reasons that show good cause justification for the delay. Texas Utilities Co., et al. (Comanche peak Steam l
N
< - 14 -
Electric Station, Unit 1), ALAB-868, 2 5 - NRC -; 912 , 9 3 5 ( 19 87 ) ,
1 l A petitioner may challenge a request f or a permit extension by seeking to prove,-on balance, delay was caused by-circumstances that do not constitute good cause. Washington f
1 Public Power Support System (WPPSS Nuclear Project,. Nos.
l i
and 2),'CLI-82-29, 16 NRC 1221, 1229 (1982).
l
.The need to evaluate and correct-safety deficiencies i
can be good'eause for delay in construction completion even -
when those deficiencies resulted from deliberate corporate wrongdoing. If there was a corporate policy-of violating i 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. (Comanche Peak Steam Electric Station, Unit 1) , CLI-86-15, 24 NRC 397, 402-403 (1986).
- b. The Contention 4
' 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.
1 a
15 -
f 5
- As bases for the contention, Petitioners-contend that-a
' significant safety hazard exists where an applicant has employed and continues to ernley corporate policies aimed at constructing a nuclear power plant in violatior, of NRC-L i
requirements and, as a result of these corporate policies, 4 - significant and substantial construction delays occurred and
! continue to occur. They further contend that the applicant
! has not repudiated or disregarded the corporate policies -
l responsiule for this delay. At a result they allege-Texas Utilities -is unable to demonstrate good cause for the delay i.-
and the amendment must be denied.
I f
- In support of the contention Petitioners allege that i ; the f acts contained in CPA-1, the 1988 proceeding in which i:
! Texas Utilities sought to extend .the construction- completion i
l date for Unit .1 to August 1, 1988, demonstrate that a j factual dispute exists as to:whether'. Texas Utilities had a s corporate policy to violate HRC requirements tdult had no ,
l
-valid purpose and resulted in a delay in- the construction of ,
1 l f Unit 2. They further allege ,that CPA-1 demonstrates a 1
l
.p-f actual' dispute as to whether the corporate policy had not f been' discarded or. repudiated. - .. ._ ..- -
- - g- ; . -
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- Petitioners contand .that Texas Utilities misled _the '
licensing board in CPA-1 about critical facts in anjeffort-F .to conceal its'engoing corporate policy of construction in p
s I
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- _. - - . _. . -- . -.. . . _ .__.._._z _ ~ . _ _
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violation of NRC requirements. These were said to include the use of restrictive settlement agreements, the payment of hush money, the use of incorrect construction standards and 4
improper design certification methods.
Petitioners further contend that Texas Utilities continues to receive Notices of 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 intentional conduct. It claims that Petitioners' supplement 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 satisf actorily resolved prior 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 tJast resulted from reinspection and corrective action programs at Unit 1, which were to be applied to Unit 2, It requests that Petitioners' petition
e - _
, 3 17 -
to intervene should be denied because they f ailed to establish a basis f or a contention as required by 10 C.F.R.
S 2.714.
Staf f 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 ,
J1988 to January 1991, when it resumed significant construction activities.. It states that Petitioners f ail 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 'Pexas Utilities to inappropriately defer the Lresumption of significant construction activities at Unit 2 for more than ,two years from 1988 until 1991. Staff asserts
- 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 the1 operating license proceeding for Units 1 and 2 ,
or CPA-1 without . explaining,how any .of .these..pleadings, - ., ..
even ..
.nrif =true, caused. Texas. Utilities to inappropriately delay
. u -
fr significant;c.onstruction z - c:s. activities .at Uni.t 2. Staff cla.ims that the events Petitioner alleges to.have occurred since .. .
the CPA-1 proceeding was terminated are unsupported. It
.. - - . -=. - _ -, .- -. -
.. n i
4 l
concludes that Petitioners have failed to demonstrate that a I genuine dispute of material facts exists making Petitioners' contention inadmissible.
Petitioners rely on the record in CPA-1, a proceeding 1986 to .
to hear Texas Utilities' request of January 29, extend the construction' completion date of ' CPPR-126 for Unit 1 to August 1, 1988.
Intervenor in that proceeding; i
submitted a contention upon which the subject contention was
~ modeled.' The proceeding was considered along with the
' ' operating license appl'ications' for Unit 1 and its companion Unit 2. Docket No. 50-445-OL and Docket No. 50-446-OL.
i e
W l
The applications for operating licenses for Units 1 and 2 were filed in 1978. By 1983, the only contention
- remaining for litigation in the operating license proceeding i
challenged the quality assurance and quality control associated with the construction of-the Units 1 and 2.
' During the course of the proceeding the licensing board L found that the applicant had not demonstrated the-existence of a system-that promptly corrects design deficiencies and had not explained several design questions raised by the.
4 intervenor. .It; suggested the need for an independent ~ design review and required the applicants to file a -plan that might ;
help to resolve the Board's doubts. Texas Utilities
' Generating Companyv et al. (Comanche Peak Steam Electric
, i f . l F
Station, Units 1 and 2), LBP-83-81, 18-NRC-1410 (1983). l Applicants-took varicus actions to address the concerns that had been raised. Subsequently,-Applicants, Staff and1the
(
j L
intervenor entered into an agreement in June'~1988 to settle' . ,
l l
j and dismiss the operating license' proceeding and the I
application proceeding to extend the- construction. completion -
9 -
date for Unit 1. The licensing board concluded ,th,at as a result of the settlement it knew of no matters in controversy. 'LBP-88-18A, 28 NRC 101 (1988). It then dismi ;ed the : proceeding -'on- July 13,-1988. LBP-88-18B,.28' j
I NRC 103 (1988). . .
l f
. Petitioners would incorporate by reference into this-i proceeding- the' record from the _ operating . license 1
- applications and construction permit extension proceedings.-
r The record'run's=into many-thousands of pages. ,They,also .. .
reference'two7p' leadings.containing.morethan[200;pages.
hks'adontha'tredord. #
Petitioners-wouldhaveus'findthat; Ta'x as' Utilities had- T not repudiated, prior .to hthe time the i i
b proceedings were settled l its corpora'te policy .,of .yiolating i .
E NRC [ehlationi~which resulted in delays in,the cons.truction .
- - - s. . - . .
- .~ .
i .r_:.o'f s -. . " o :CPSES . " "
- LL,': . L. .
a .. : . .
. .. .a,_ .
- s. ...
t "t' - - ~' This we 'c'annot do. . Commission l practice is clear that'a-
! ..an i ~ .. . . ~
petit.,ioner.may not - sisplyl incorporate massive . documents by _
p ref er'ence as - the . basis. f or its contention. . - Petit. io.n..ers are -
1
?
j e.~
l' e T v 4 -w + mis- - .u-.--r eswa ,+m--or s r1 s-sew v-n ee ar 'ee-eue-u-m e w - s ee mee*m zw res ==re e w rwe +e-w -"
expected to clearly identify the matters on which they '
To do intend to rely with reference to a specific point. ,
serve the purposes of a pleading. Public otherwise does not et al . (Seabrook Station, Service Company of New Hampshire, This Units 1 end 2) 29 NRC 234, 240, 241 (1989).
~
- 2. 714 (b) (2 ) (ii) requirement is incorporated in 10 C.F.R.
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 agreements. .
Petitioners assert that Texas Utilities has not repudiated its policy of entering into restrictive ,
sebtlement agreements with former minority. owners.of,CPSES in order to keep relevant information from the licensing
~hokrdinCPA-1andtheNRC. Brazos Electric Power Cob ~p"'e'rative',' Inc. (Brazos), a minority owner in CPSES, had contended in an August 14, 1987 pleading in CPA-1.that Texas Utilities was responsible for failing to disclose material infdrmation and making misrepresentations to Brazos that may
'havedIlayedconstructionofUnit1. Brazos asserted it was
~ ' a continuing practice of the permit holder. Petitioners 9
. . . . - . - - - . . ~ . - . . - . - - , - _ . . . . - .. .
- r a e 1
l o
assert that subsequently Texas Utilities and minority owners Brazos, Texas Municipal Power Agency and Tex-La ' Electric Cooperative of Texas entered into settlement agreements whereby Texas Utilities purchased the interest of tha -
minority owners who in turn agreed- to drop their litigation 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. ,
We cannot discern from Petitioners'. presentation -how -
.the.entrp of Texas Utilities into nondisclosure agreements resulted in delay in the construction of CPSES. The - -
allegation was 'made but it is unsupported. -
7c .: . ,,.
I Moreovei, even if Petitioners had alleged -facts :
indicating intentional violations of NRC requirements as the L ;ic'ot cause of 'the 'd'eficiencies ~ requiring correction, rit
~
would notfbe tsufficient to defeat the extension .if ' the , ,
policy was discarded and repudiated by the permit holder and the.dela9s'occurredbecauseoftheneed.tocorrect.t5e
~
safety problems. : Texas Utilities Electric Co.- et al. ,
(Com'anche% Peak 1Ste,am Electric iStation;{. Unit ;1) , CLI-86-15, 24 - NRC :397, .401-404 ' (1986) . For-a petitioner;to plead an.,
i admissible contention in a construction permit. extension-_
l l;
l
,.?
l_
l
~ N I . .. - * . ..
s e f proceeding it is necessary to directly challenge the permit '
! holder's asserted reasons that show good cause justification
(
for the delay. Texas Utilities Electric Co.r- et al.
25 l (comanche Peak Steam Electric Station, Unit- 1) , ALAB-868, i
NRC 912, 935 (1987).
Petitioners-at no time directly challenge Texas I
j Utilities good cause justification for.the delay in constructing Unit 2, i.e. , applying safety modifications to l Unit 2 based upon the reinspection and corrective action i- -
I program applied to Unit 1. They do not present any j.
supporting material to show that on balance the restrictive agreements- were the cause of the delay at Unit 2 and not the reasons given by Texas Utilities in the application. - Noti
- only is this inconsistent with the law on contention requirements in a construction permit extension proceeding j 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 i they dispute and the supporting reason for each dispute.
I l
Petitioners. allege that. restrictive settlement L
- agreements entered into with alleged whistleblowers established a practice of concealing evidence directly -
bearing on the issues to be' litigated in the operating I
license and CPA-1 proceedings.
4 I i
~ . __ .. ._ , . _ ._ -._.._.s.=.._ _. _ . - , - , -
- , e They claim the agreements demonstrate hat Texas Utilities has not repudiated its corporate policy which resulted in construction delay. Agreements were entered <
into betwean Joseph J. Macktal, Jr. and the contractor of CPSES (Brown and Root, Inc.) in January 1987 and between Lorenzo Politri and the architectural engineer for CPSES (Gibbs and Hill, Inc.) in June 1988. .
The individuals in settling employment claims with the contractors agreed not to voluntarily testify or otherwise participate in any proceeding or investigation involving CPSES. The Polizzi. agreement permitted him to inform the,,.
NRC of safety concerns relating to CPSES. Texas Utilities, argues that it was not a party to either agreement and that the . individuals were informed in 1989.that the restrictive
- clauses would not.be. enforced. , ,, .. ,;
... . ..- ~ . . -:... .. . ;
.' The pleading is similarly.. deficient as that, relating ,to ,
the nondisclosure agreements entered into with minority ,p owners.'.The_ claim.that.the. settlement. agreements ,resulted, in construction delay is_ unsupported. . Contrary ,to the , , ,j requirements of 2.714 (b) (2) (iii) Petitioners ignored and g failed to challenge the reasons given by Texas Utilities for l
. the . delay .of construction at , Unit .2,. phich ,is ,cri, tic _al for a contention. opposing.a construction permit , extension. ._ q l
2' :.: . . ..;..-..:' ' *
.. - . . . ;i
. ._____ _ . _ . _ .-_._ __._._. ~ ... _ _ _ _ _ _ .
i ,
4 ,e ' t f .
i
- 24 -
l i
(2) Pattern of continuing violations.
i i
Petitioners allege thatsthe opivating license and CPA i i proceedings demonstrated a corporate policy of- Texas Utilities that resulted in a breakdown-in the qual-ity assurance (QA) and quality control (Qc) _ programs employed by i
i CPSES which delayed construction. They contend that Texas q . ..
I Utilities' continues to receive numerous Notices _of Violation b
I and civil penalties _which showsLit. continues to employ the I same corporate policies which. originally -resulted in the -
1-delay of construction. In support Petitioners presented a i
- printout of the Notices'of Violation and penalties received
, since the settlement of the former proceedings.- - -
f 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 : en _ May 17,
'1990; August 3, 1990;; February 21, 1991; - March 29,11991; _
5 April 1, 1991 and' March -31, .1992. : Petitioners-assert-that-I i.
the Notices of~ Violation demonstrate that-Texas Utilities .
l has not abandoned-its post corporate _ policy which resulted in. delay.
^
' exas Utilities states that it:has taken corrective and
!~ T ,
~
I preventative" actions ' for each of the six violations 'and the t' ~
It:
4 NRC has closed all but the most recent violation.
4 f
e~
9> .y w .y-. %.- ,-9 . - - _ ,m-n , .. .,m.w
.rw . . _ . . -. , ,- .
8 . g6 disclaims that the violations provide a basis for a contention that there is a current or ongoing corporato policy of violating itRC regulations.
We do not believe that which Petitioners have presented supports a claim of a pattern of violations that demonstrate a policy to violate tiRC regulations. Inevitably, there vill be some construction defects tied to quality assu.iance lapses in any project approaching in magnitude and complexity, the erection of a nuclear power plant. Union 2,lectric Company (Callaway Plant, Unit 1), A LAB-7 4 0, 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 were the cause of the -
delay at Unit 2 rather than. as justified by Texas Utilities.
(3) Alleged misleading of licensing board in operating license and CPA-1 proceedings to conceal corporate
- . policy .of violat.irg NRC regulations. , , .
-a- . , u se : : + : : .- ... :.u::;-- .:. ;
Petitioners , allege ,that, Texas, Utilit,ies misled the ;,
licensing board.in.. July ,1988 ,about the root causes of design 7 detacts ; incorporated in the design ,of CPSES, which required ,,
a complete redesign of the CPSES pipe support system,
. .thereby . delaying .construc. tion.;g . ; f. , ,, ., ,
. - . .= . . :: s ::. . ..~ ::.:: .. . w
- . .: . . . . . .:. .n o , .--
l
, ,'4 (i) "Husn money" settlement agree.sents.
i Petitioners allege that Texas Utilitics arranged to .
have whistleblowers paid money in exchange for agreeing not to bring safety concerns to the NRC and denied such activity i
at the prehearing conference on' July 13, 1988, which resulted in the termination of the proceedings. Specific Kention is made of the Polizzi agreement. Petitioners claim the failure of Texas Utilities to repudiate the agreements
^
dc=enstrates that the practice will continue.
Texas Utilities denies that the agreements restrict whistleblowers fr'on informing'the NRC of safety concerns and that the NRC has so four.d. It asserts that the agreements-are more than four years old and do not relate to the permit holder's current corporate policy.
1 The Board notes that the Polizzi agreement of June 23, 1988 provides that the agreement shall not "be interpreted to prevent Polizzi from infor' ming the Nuclear Regulatory l 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
e e
balance, caused the delay at Unit 2 rather than the reascna given by Texas Utilities. Petitioners have not provided a valid basis ir support of the contention.
(ii) Incorrect certify thestiffness CPSES pipe valvos support weresystem. used to Petitioners allege that beginning in 1983 S.M. A. Hasan, an engineer at CPSES, had inforted Texas Utilities
~
management that incorrect stif fness valves had been used to certify the CPSES pipe support system. The project pipe support engineer was advised of this in August 1985.
Petitioners state that the licensing board was not apprised of this situation as Texas Utilities was obligated 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 allege that l
the project pipe support engineer who oversaw the design of -
\
.'u . . .e - . , . . .
all piping support work at CPSES is .m.:, ..
believed to be .currently .,
- a w : :. : .. -
employed as Texas Utilities' Manager of Civil Engineering.
.. : ... a :,.- . . . . . _.
Petitioners .' : . . ;
claim this demonstrates that Texas Utilities ; ..
has
[ not repudiated its policy of construction in violation of u n .. s n .: s : . : .- .. .~. :. . . . ..
NRC requirements including ..;
the concealment of significant
% .1 ..i.. :. . . . :. ... ..
safety' deficiencies.
. p . .. . . . .s.-> m . .
l ..
~
~ ' ' = -
- e n ..-.,4
e ,
< i i
i l
! Texas Utilities asserts that in the mid-1980 Hasan cade allegations to the NRC regarding the pipe support .
certifications. It states it advised the NRC that in July j 1987 the pipe supports were being correctly validated and
- i
- the NRC concluded Hasan's concern had been adequately l l resolved. Texas Utilities further asserts that the matters were made known to the licensing board prict! to the .
i dismissal of the proceeding on July 13, 1988. It claims l
that Petitioners' allegations related to pipe support certification are more than four years old and do not relate I to Texas Utilities
- current corporate policies or as to l whether it had repudiated past policies.
I Petitioners' claim that Texas Utilities maintains' its f policy of construction in violation of NRC requirements, E including the concealment of significant safety
! deficiencies, is unsupported as prescribed in- ,
l 5 2.714 (b) (2) (ii) . Lacking is a showing that the alleged i
i improper certifications and their concealments extended
\
beyond 1988. The only connection made of the prior i
activities of Texas Utilities and its current-practices is t
that it continues to employ the same manager as to whom the
- _ . .. ?:
initial complaints were made. There is no showing that he presently allows improper certifications or conceals them.
Jul additional defect in the pleading is that it- does not f
I l
s i
, . . _ . _ - , . , _ . . . . , - - - . . . . , . _ ~ - . _ . - . _ - _ _ . .
> c directly challenge the asserted reasons of Texas Utilities in justificatien f or the delay.
(iii) Harassment and intimidation of whistleblowers.
Petitioners contend that Texas Utilities has harassed and intimidated whistleblowers at CPSES. They ausert that numsrous whistleblowers continue to file complaints against Texas Utilities and their contractors. Petitioners claim that Texas Utilities has not repudiated its corporate policy of constructing in violation of NRC regulations whi.ch hes resulted in the delay of construction of Unit 2.
Petitioners rely en 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
- i. ; :: .
r . ... : . , .. . .. .
adequately identified the root cause of the harassment and -
. . . :.p n 7. u : .: :. .i. ~ .. : . ,. ,. : .
c.
intimidation of QC inspectors, managements' role in it and'
- . 2; . .qa :.? . .:10.- :._ .. ; ; .
..t; c; . ..
the alleged withholding of information regarding the
.: ...:::-.: nc : : w: m ., a - . . .. .; . ; a . , .. ;. .
intimidation of a contractor that was to conduct an 2 n - . .; a :. ~:t -
..: . .. c.. .
independent assessment program. They also allege that Texas
~.s":::L n 5 :.: *
. :: ::.- . :. h . ..- . * .n . . : : . : :.. ;- ~~
Utilities has not properly reviewed the concerns of L. 'U..b ?.ir :.;l
- ..
- : .. a ,
whistleblowers ;
and that harassment and .intimidation
- . ; ; .. . m . . u.
still 3.1: .~.;;;.. 1n::c:: s .:: :: ::: . :.: .: . . ;.; . .
exists at CPSES. Petitioners seek discovery in order to
% :." :.:.- .1 :c'.. ; ;: . :- . ;. . . . ~ . . :. .
' .> .c . ? . .- : k: ,
v - -
docur.cnt evidence which they state supports those and other assertions.
Ir, response Texas Utilities contends that the allegations of harassment and intimidation are unsupported.
It further alleges that Petitioners did not provide a basis for the allegations that the 11timidation and harassment or employee concerns resulted in tl.e subject delay in the completion of CPSES Unit ?. Texas Utilities advises that in the mid-1980's an HRC specia.1 investigation team found that there were some incidents of intimidation and harassment, Texas but there was no " climate of intimidation" at CPSES.
Utilities denies any deliberate corporate policy of violating NRC requirements.
Petitioners' assertion that an atmosphere 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 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.
~mn -
p Although Petitioners would like to further develop support for the contention through discovery, we cannot give them that right. Discovery is only available to a party f ollowing the admission of a contention. Nisconsin Iloctric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1263; 10 C.F.R. 5 2.74 0 (b) (1) .
The contention f ails because it does not directly challenge Texas Utilities' 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 time,to make modifications at Unit 2 based on the knowledge gained. Petitioners
- allegations of corporate wrongdoing do not show a genuine disputs exists with the ,
applicant on its justification for the delay.
.. The contention also f ails to comply with 10 C.F.R. ,
S 2.714 (b) (2) (iii) which requires that each contention .
contain sufficient information.to show that.as gen.uine dispute exists with the applicant on a material issue of. law orsf act. 3-The . showing must include references to the ,,
specific portions of the application that.the petitioner ,;
disputes.; *
~
q The contention is therefore inadmissible. 10 C.F.R. 5 2.714 (d) (1) . The f ailure to submit a single admissi.ble
-- . - - _ - - - ~ ~ . - _ _ . _ . _ _ _ _ _ _ . - . _ _ _ _ _ _ _ _ _ _ _ _ _ _
- ,o 4
(
contention results in Petitioners not being permitted to participate in the proceeding as a party. 10 C.F.R. 4 5 2.714 (b) (1) . The Orrs' petition for leave to intervene f
and to hold a hearing shall be denied.
- c. Additional Pleadings.
On llovember 17, 1992 Petitioners filed a document entitled "!!o'tification of Additional Evidence Supporting Petitions To Intervens' Filed By B. Orr, D. Orr, J. Mecktal, and S. Hansan" (tiotification) . Petitioners submit for consideration by the Board evidence they allege was not '
avail'able to them on October 5, 1992, the date set for filing contentions.
The evidence consists of excerpts of settlement agreements entered into between Texas Utilities and minority owners Texas Municipal Power Agen'cy (TMPA) and Brazos. The agreements are dated February 12, 1988 and July 5, 1988, They cover the purchase by Texas Utilities of respectively.
the minority interest's. The former minority owners agr'eed
~
that they and their attorneys, employees and consultants would not assist or cooperate with third parties in -
proceedings relating to comanche Peak.
l
33 -
Petitioners allege that they were first notified by i
letter of October 13, 1992 that the agreements were available f or inspecti:n in the NRC's Public Document Room which made it too late for their inclusion in the contention 4 l filed October 5, 1992.
i l
I l
They claim that through these restrictive settlement i
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 i
construction of CPSES and the ability of Texas Utilities to construct and operate the plants. Petitioners further claim that the agreesents demonstrate a past corporate policy that has not been repudiated, which ' caused the delay in the construction of Unit 2. They also allege that the agreements show the payment of money for silence and that i
they violate the Energy Reorganization Act and important public ' policies .n?. -
. 4 t * ~~~ *
.. : . . :: .2
- Tsxas' Utilities asserts?in a response dated .
? November.25, 1992;'that Petitioners' Notification is ..
procedurally improper and substantively irrelevant.. It claimsthat'the two documents ~were provided to the .NRC years ago and were available'to Petitioners:long before 3<<
October 13,1992.' It stated'that?at a minimum Petitioners-should- have addressed the five factors that must be .
.+
_-,w s< - - -e.--- .e. -
.i 1
i 1
i as considered before a nontimely filing may be entertained, l
1 l
provided for in 10 C.F.R. S 2.714(a)(1), and that their failure to do so should result in the rejection of the
- i. document.
i 1
Texas Utilities further argues _that Petitioners make no l
effort to explain how the agreements have anything to do l
I with the current extension request. It claims that the agreements predate the previous extension of _ the construction completion date and are-irrelevant. The ,
t j agreements are said to f all to satisfy the Commission's requirements for admission of a contention in-a construction i
j
! permit' extension proceeding as contained in Texas' Utilities Iloctric co. (Comanche Peak Steam Electric Station, Unit 1),
- CLI-8 6-15, 24 NRC 397 (1986).
i -
Staf f in a December 3,1992 response- argues that Petitioners have f ailed to establish good cause for the ' late filing of the Notification and that the information and i
legal arguments contained in it shculd not be considered by l
the Board. Staff also argues tnat the Notification fails to demonstrate that the contention has any discernable e
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 t
y ,
,. . t J
- 35 -
construction permit construction completion date was extended. Staf f 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 newly obtained evidence because they were.
publicly available prior to the october 5, ~ 1992 filing date. t 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 information that the applica' tion ;
documents were available in the NRC's Public Document Roos.,
53 Fed. Reg. 31,778 (August 19, 1988); 53 Fed. . Reg . 50 610 (Dec. 16,~1988). ;.*: . l ; ,,,
. 1 ./ '- ; ; , ,
Furthermore,: Petitioners were generally . aware. of, the , ,
contents"of the agreements when they_ filed their. contention-2 on October 5,71992:and could-have-made in that filing all of-the points' they of fer~in the Notification. -In the ,-
October 5,1992 filing Petitioners submitted excerpts of,,a similar. settlement.. agreement. Texas,Utilit{es anteredj into,-
with Tex-La Electric Cooperative of Texas and argued.that .
- the agreement- and those .With Brazos and .TMPA supported ,the,ir L .
4
,o .c 1
' contention. Petitioners stated that they were unable to get I '
copies of the Brazos and TMPA settlement agreements but j
argued on the basis of all three because they were all .
l similar. The submission of excerpts of the two agreements l
in the Notification were but a formality in that their relevant contents had already been used in a basis in '
support of the contention.
I Petitioners used the excerpts of the Brazos and TMPA settlement agreements as a vehicle to expand on the previous 4
matters presented in support of the contentien and to introduce new arguments such as the claim the settlemen.t i
agreements reflected the payment of money for silence and ,
l that they violate the Emergency Reorganization Act and j public policies.
Not only can the Brazos and TMPA. settlement agreements not be considered new evidence because of their previous
. availability but their contents had e.lready been used to support the contention. 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 th'a 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.
i
_ __ _ __ _ _ - . _ _ _ _ . _ _ _ _ _ _ . . _ _ _ _ _ . _. - _ _ _ . . .. _ ~ _ _ _ _ _
- 37 -
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 Petitioners request Agreements," dated November 15, 1992.
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 I
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 af fected by the agreements, submit to discovery by Petitioners. The purpose of the discovery is to permit Petitioners to file additional contentions and additional informIation in support of the previously filed contention.
Texas Utilities in a response dated November 25, 1992 requests that the motion be denied. It assarts that the request to declare the agreements null and void is 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.
Staff, in its response dated December 3, 1992, agrees with Texas Utilities in opposing the motion. It also contends that the agreements neither violate the Energy
,e ,
or the Commission's regulations.
Recrganization Act However, to the extent the agreements are within the ii proceeding and they preclude the affected corporate ent t es from bringing information to the NRC they are without force i h the and effect insof ar as they relate to communications w t NRC. I We deny the motion because Petitioners seek relief that ,
is not available to a petitioner for leave to intervene, I The request to is one for discovery.
The motion in effect 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 conte,ntion.
(Point Beach nuclear Plant, Wisconsin Electric Power Co.
Unit 1), ALAB-696, 16 NRC 1245, 1263; 10 C.F.R. S 2.74 0(b) (1) . Petitioners have not achieved that status and cannot be granted that relief. We do not rule at this time
~
on whether the relief could be granted as requested had petitioners achieved party status.
B. The Dew Petitlen To Intervene
- 1. Requisite Interes: For Standing.
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, puruuant to 10 C.F.R. 5 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 _ officer 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 ito -him and. harassment to her from those under the control of_ Texas Utilities./ -
Workers is stated to be an organization composed chiefly of persons who own property or reside within,a 50-mile radius of the. facility. . Affidavits :
,att9 sting;to
. .. . . , . 3
/this are , claimed by' Petitioners .to,be already, on, file with ,
the NRC. It was not identified where.. ..The. board of _
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- 40 -
[
directors of Workers is reported to be made up of former i-
' whistleblowers who were prevented from testifying before the l Co= mission because of an allegedly illegal settlement t
agreement. Workers claims to have had standing in "past t
l issues" and wants to reclaim it here. The "past issues" l '
were not identified.
f
~
Petitioners claim all-of those interested-in the . _ ,
proceeding do, or will live, work, recreate, travel and raise f amilies within a radius of 50 miles of CPSES. Much 1
j i of the food and all of the water used in the area was said i
! to be subject to radioactive or toxic material releases from a
- the facilities. They assert that there is good reason.to 1
deny the request for an extension but do not further j
identify it.
Petitioners request'the suspension of the-subject y
l proceeding based - on' vague arguments relating _ to other i
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.
4 k
- - Texas Utilities argues that the joint petition should
- not be accepted _for filing. It asserts that it is_one_or' - -
more.than a' dozen _ actions invol ing CPSES_that the. Dows have a
Texas Utilities-claims that~the_ Dows have
~
initiated.
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s engaged in a pattern of not cenplying with the Commist Sn's requirements, of naking f rivolous and scurrilous claims, of omitting material f acts and of harassing it and the NRC.
Texas Utilities had requested the Commission to grant a similar motion in Texas UCL11 ties 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 recpen the record, the Commission did not address the Texas Utilities' motion. -
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 4
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~f elony 7 arrest and misdemeanor 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 that
- the Dows have.not asserted any other injury-in-f act which falls within the zone' of interest protected by the AEA and that organizational' standing was not established on behalf of 1 Workers. "It wobld deny the Dow petition for lack of ,
standing ro f the Petitioners. ; ,
h
, s~ .<
t
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I Staf f is of the sane position as Texas Utilities that i
the Dow petition does not establish standing as provided in l
10 C.F.R. S 2.714. It views petitioners' request to suspend
! the proceeding on the basis of mootness and due process i
j claims as irrelevant considering that they have not ,
established standing. 7
-=
l The Dows individually cannot be presumed to be . ,
j i
i adversely affected 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 j
facility. Gulf States Utilities Co. (River Band Station,-
'dnits 1 and 2), ALAB-183, 7 AEC 222, 226 (1974). .
^
i 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.
i I To establish standing they are therefore relegated to do so by alleging an injury-in-f act that is within the zone a
i The. injury should of interest protected by the AEA or NEPA.
likely be remedied by a f avorable decision granting the relief sought. Dellums v. NRC, supra.
4 9
. , , . .- - - - - rw-- , - - . ~
O H
- 43 -
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.
The alleged threats and harassment that were said to result in the Dows fleeing Texas is not an injury protected under the AEA or 11 EPA. A favorable decision for the Dows in ,
the subject proceeding would not remedy the alleged injury.
The f orum 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-f act to its organizational; interests or .tc3 the interest *of members who have authorized it to,act,for them.
If the organization is depending upon injury to .the ;
interests of its members to. establish standing, the organization must provide. ith;.its petition,_ident,1fication ~;
of at least one member who will be injured, a desc.ription of the nature of that injury,. and an authorization ,for the
__e __m _ __ _ _ __ _
- 44 -
organization to represent that individual in the proceeding.
Philadelphia Electric Co. (Limerick Generating Stations,.
Units 1 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 relies 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 who will be injured, a description of the nature of that injury 'to the member and an authorization for the
~ .
Workers to represent that individual in this proceeding.
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.
i
o %
!!ct having established the interest for standing the l
request by the Dew 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 petition. 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 l which can be disposed of on the existing record.
7 i- -
.The petition for leave to intervene.and to hold a
! hiari6g'shall be denied on the grounds ~that Petitioners failed to establish the requisite interest for standing under 10 C.F.R. 5 2.714.- .
1 -
- Aspects'. .
- 2. . . - ..
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2; J UTexas " Utilities and Staff claim that the Dow petition ,
for ile~ ave fto intervene f ails to set ,forth .the- specific .
??aspe~c't or aspe. cts'of the subject. matter of the proceeding as F
$. t6'wh'ich Petitioners seek to ' intervene, contrary to ;10 C.F.R/'S 2.714 (a) (2) . : y 3,. , _
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, ": ,9 We agree that this constitutes another def ect in the Dow petition which is inadequate for establishing standing under 10 C.F.R. S 2.714.
- 3. The Request To File Contentions.
In a Memorandum and Order of September 11, 1992, we set October 5, 1992 as the date to file amended petitions and j suppiamental petitions containing contentions for l l
' litigation. on october 5 the Dow petitioners fi, led a motion for an extension of 30 days to make the filing. The request j 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 f ailed 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 story was that he said he was imprisoned on September 3, 1992 to keep him from making the October filing date, although it was not until September 11, 1992
4 1 e . 6 -
1-
- 47 -
4 1
i j that the Board issued its memorandum and set the date for i
filing.
i i I i
' In response to our Memorandum and Order- of October 19, 1992 denying the motion, R. Micky Dow filed a motion for l
rehearing dated 11ovember 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 j would not prejudice any of the parties and if the Board f l
t found his motion-to 'oe lacking in truth it would have been
< more appropriate to issue an order to show cause. -
4
' 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 additionale. unsubstantiated, details r,elat,ed~to precisely the same events,. discussed in,the initial; motion. ,
- .:.: . . .;;;; - :. ; : . . .; : ...f5... . . ...
-; Staff also oppos.es t.h.e motion.. It... argues. .that
. _ . , ... . the 5; ';
2.-
notion fails,to.. demonstrate;that,the, October 19, 1992 order ,
was erroneous or arbitrary. Staff considers the motion for
. 4...rahaaring a.s .a Jaotion.for rec..on. sider, at..io. n. and. states - the motion . doss, not mee.t. the:w st.an. .da.r.ds for r..e.:c.o. ns.i.d. e a.t. ion.- The ,
e .
' Commission .has held. that. . motio.n. s t.o . rec.o.,ns.id.er should be g(. associated.with.. requests for re-ev,aluation of an, order.in
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- 48 -
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! light of an elaboration upon or refinement of arguments -
4 previously advanced and they are not the occasion for an i
i entirely new thesis. Central Electric Power Cooperative, i
Inc. (Virgil C. Summer Nuclear Station, Unit 1 ) CLI-81-26,
)
L j
t 14 NRC 787 (1981).
4 ,
Staf f alleges that the claim of a lack ot knowledge of j the filing date is new ind improper to raise-in the motion for rehearing. Addit.ionhily,' it states that the movant
. +
l i-i reiterates the same' argument without further elaboration,
> that he was separated from his evidentiary material and was I unable-to contact anyone, which is also-improper pleading.
I It also alleges movant fails to understand his burden of i proof in a motiod for an extension of time and that tlia ' -
t 1 - -
motion for rehearing was untimely.
The Dow motion for rehearing, along~with-the attached j unverified statement of~Mr. Dow only confirms our
! October 19, 1992 finding that the original motion _ lacked 1
l cred'iisility, 'was " unsupported by' probative' evidence and 1
' f ailed to provide' good cause for the requested ' extension.-
1-4 The h'eart of'the original motion'was the Dow claim that- .
he had a rough draft of the plSading' to be: flied, that he was -incarcerated 'on Sep'tember 3 for more than--30 ' days 'and had his-papers st'olen so that he would not-be able to timely I
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file. Having had the Scard 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 cerely conflicts with the original version and does nothing to enhance credibility.
I Dow in his original motion claimed he was held incommunicado for more than 30 days and could not contact
\
anyone regarding the possible extension of the filing data. ;
l I
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; 4
that "the public record and court transcription in existence now will completely substantiate" his version of what i 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.
l .. :: .. . .. : .c. :.a ..
dn' der 10 C.F.R. SS 2.711(a) and 2.732 -the Dows had the burden2 0f showing good cause for .the ' requested extension. :
They did not meet this murden provided for in the NRC's ..
Rules of Practice and their motion for an extension failed.
h i
6 .' )
l 1
We found no basis to e= ploy a show cause procedure before deciding the motion. It was not required nor. Warranted by ;
the circunstances.
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 rehearing on the grounds of untinaliness because there is no prescribed time for filing such a motion. Wo shall deny the motion on the basis that it failed to show that there was error in our denial of the motion for an extension of time i to file contentions.
ORDER Based upon all of the foregoing, it is hereby ordered:
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
- m. .
- ..-- . , , . . . - , _ . . . . . . . . . . , , - . . - - - - - . - - - - . . - - - . - . ~ , - - - - _ _ . _ , - . , _ _ . . . , _ _ . - , , ~ . _ .
v .
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- 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. he November 10,-1992 " Motion For-Rehearing By R.- Micky Dow,-Pet,itioner" is-denied.
~' ~ ~ ~ ~
Thi"Jbly .28,1992 "P'e'tition Of Sandra Long Dow dba
~
5.
-. '2 '
. " ~ . : :: ..
Disposable Workers of Comanche Peak Steam Electric Station, >
and R. Micky Dow For Intervention And Request,For Hearings"
+
is denied. 3
- 5. The proceeding is terminated.
This order is subject to appeal to the Commission pursuant to the terms of 10 C.F.R. 5 2.714a, and specifically 10 C.F.R. 5 2.714a(b) . Any such appeal must be filed within . ten days 'after service of this ordar and must include a notice of appeal and accompanying supporting brief. Any other party may file a brief in support of or in.
W
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.,*c. , ,
1-
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1 4
7 opposition' to the appeal within ten days after service of 1 -
r the appeal. .. . . r .
l s
4 THE ATOMIC SAFETY AND LICENSING BOARD-
. '. N . : .. . . . . ,
y.4
\
~
. ce L2]J. L..RO -
Morton B. MartJulig, Chairman . ...
l' CHIEF ADMINISTRATIVE IAW JUDGE
't M .
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.. Dr James H. Car enter A INISTRATIVE J GE 1
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i
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M' 7'
~
. Dr. Peter S. Lam l - ADMINISTRATIVE JUDGE ,
1 _,
j .
! Bethesda. Maryland December 15, 1992 4
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I UNITED STATES OF AMERICA -
NUCLEAR REGULATORY COMMISSION in the Matter of TEXAS UTillTIES 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 otherwise 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 Comission Washington, DC .20555 Administrative Judge. Administrative' Judge James H. Carpenter Peter S. Lam Atomic Safety and Licensing Boar.i Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Connission Washington, DC 20555 Washington, DC 20555-Wrian L. Zobler, Esq. George L. Edgar, Esq.
aichael 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. Kehn, Esq.- Sandra Long Dow Counsel for Petitioners Disposable Workers of Comanche Peak Kohn, Kohn & Colapinto, P.lt. Steam Electric Station 517 Florida Avenue, N.W. Dept. 368,-P. O. Box 19400 Washington, DC 20001 Austin, TX 78760-
- - ~ - - - - - - _ - . , _ _ _ - _ _ _ _ . _ _ _ _ _ _ , _ .
~ --
_ a, ,
Docket No.(s)50-446-CPA LB M&O (LBP-92-37)..TERMINAT'G Dated at Rockville, Md. this 16 day of December 1992
' Office of the Secretary of the Commission e
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A .,
i 20CKETED n OCT 2 21992
. unc I UNITED STATES OF AMERICA U
g b y Li C D NUCLEAR REGULATORY COMMISSION
~92 CCT 19 P4 :15
........ ........- ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: ,@- E' .S' Morton B. Margulies, Chairman Dr. James M. Carpenter Dr. Peter S. Lam , dERVF.D OCT 2019L 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) October 19, 1992 MEMORANDUM AND ORDER (Rulino On Dow Motion For Extension Of Time and Settina A Further Schedule)
The Board has before it for consideration a motion entitled " Motion For Extension Of Time To File Brief By Sandra Long Dow dba Disposable Workers of Comanche Peak Electric Station And R. Micky Dow," dated October 5, 1992, whereby movants seek a 30-day extension of tha October 5, 1992 date the Board set for filing amendments and supplements to petitions.
Movants R. Micky Dow and his wife, Sandra Long Dow, had filed a -joint petition, dated July 28, 1992, seeking leave to intervene and to hold a hearing on the Texas Utilities Electric Company (Texas Utilities) application to amend
. o g -e e e em -
, .s 4
-2 -
Comanche Peak construction Permit CPPR-127 by extending the plant construction completion date from August 1, 1992 to August 1, 1995. The Dow petition also appears to seek intervenor status for the Disposable Workers of Comanche
! Peak Steam Electric Station which is described as having a J
board of directors and whose membership is said to be composed chiefly of persons who own property or reside I within a 50 mile radius of the construction site.
Petitioners would deny the amendment.
In a Memorandum and Order dated and served September 11, 1992, the Board, having discussed commission requirements for intervention in a construction permit extension proceeding and commenting on the Dow petition, among other things, established a schedule for amending the petitions and supplementing them with contentions for litigation at a hearing. Th'e filing date was set at "no later than October 5, 1992."
DISCUSSION AND CONCLUSION The Dow motion requests a 30-day extension of time to make the filing because of circumstances movants state were beyond their control. They allege that the pleadings to be filed were in rough draft form, in the possession of Mr. Dow, who was making a final investigative trip in this
m ,
-3 -
L matter to Colorado. They state he was apprehended on September 3, 1992, by unknown law enforcement of ficials and was confined, incocmunicado, for 30 days in the-Lincoln-County Jail, in Hugo, Colorado. His case notes, the rough draft of the pleadings, and his computer equipment were said to have been seized and were removed to the State of Kansas where they were secreted thereby precluding.him from timely finishing and filing the documents. The Dows allege that Texas Utilities and unnamed agencies of the United States government were involved in this action. Purportedly the scheme was " designed in some manner to prevent him from making a timely filing."
In an answer to the motion dated October 8,1992, Texas Utilities calls for rejection of the motion. It asserts that movants' bald, incredible assertions do not constitute good cause for granting the motion. As an additional ground for denying the motion, the utility claims that nothing was shown to suggest Mrs. Dow was incapable of making the filing or that she was relieved from responsibility from doing so.
Texas Utilities states that .this is another example of the Dows' repeated abuse of the process and that their request to become parties should be summarily rejected.
Joint petitioners for intervention, B. Irene Orr, D. I, Orr, Joseph J. Macktal and S. M. A. Hasan filed a response
- -. , 1*~ ~
o .,.
on October 8, 1992 in support of the Dow motion. They a allege that the Dows have developed a wealth of information directly relevant to this proceeding and that Petitioners had come to rely on the Dows for f actual information that only they can provide at this point. Petitioners point out
' that this was only the first extension sought and that no real prejudice would result from granting the motion. They would allow the Dows to file their motion out of time.
NRC Staff, in a response dated October 13, 1992, requests that the motion for an extension be denied. It asserts that the motion is replete with baseless and
' unsubstantiated allegations, which do not provide good cause for granting the motion. Staff notes _that, although
' Mrs. Dow alleges that she was unable to prepare the required documents on behalf of Disposable Workers of Comanche Peak Steam Electric Station because of the seizure of Mr. Dow's
' property, she fails to explain how she could not otherwise obtain the knowledge nc sssary to prepare the documents to support the petition for the organization she. heads.
5 For movants to prevail on their motion they have the i
burden of showing good cause for the requested extension.
It is a burden they have not met.
10 C.F.R. S 2.711(a) .
, m e
I 1P- g s~ %
The movants base their request on a narrat.;.".) that lacks credibility. It would be contrary to reason for the utility and the government to imprison Mr. Dow for a month and to confiscate case materials in order to disrupt his participation in the proceeding and to keep him from timely making the October 5 filing date, other petitioners in the proceeding have met the october 5 filing date and none have reported any bizarre treatment.
Further the story lacks credibility considering Mr. Dow was said to be imprisoned on September 3, 1992 to keep him from making the october filing date, yet it was not until September 11, 1992 that the Board first issued an order setting the filing date. Adding to the lack of credibility is that the story is not supported by probative evidence.
All movants of the joint motion rely on the same grounds for the extension. It does not establish good cause and the motion should be denied as regards all of them.
The fact that the Dows may provide other petitioners with information that-is important to their case does not alter the foregoing conclusion. Nothing-in the denial of the Dow motion bars the Dows from continuing to provide information to the other petitioners.
~ _ _.
l'J-19-92 01:26 PM F10M H C/ASllP TOASI.aP P020 e t
ORDER i
Based on all of the foregoing, it is hereby ordered
< that the Dow motion for an extension of tha october 5, 1992 date the Board set for filing amendments and supplements to petitions is denied.
THE ATONIC SAFETY AND LICENSING BOARD
- L e.
Morton B. Margulies/ Chairman CHIEP ADMINISTRATIVN I.AW JUDGE i
M) . hh$ W D Cases H. Carpe er INISTRATIVE E i Dr. Peter S. Lam k
ADMINISTRATIVE JUDGE King of Prussia, Pennsylvania October 19, 1992 x
4 R=95% PROM NRC/ASLBP 301 492 'i859 10-19-92 OI: 26PM P002 #11
o ,
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 RE DOW EXT, REQUEST have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Office of Commission Appellate Administrative Judge Adjudication Morton B. Margulies, Chairman 4
U.S. Nuclear Regulatory Comission 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 Comission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Marian L. Zobler, Esq. George L. Edgar, Esq.
Michael H. Finkelstein, Esq.
- Counsel for T U Electric Office of the General Counsel Newman & Holtzinger, P.C.
!J.S. Nuclear Regulatory Comission 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 4
Kohn, Kohn & Colapinto, P. C. Steam Electric Station 517 Florida Avenue, N.W. 322 Mall Boulevard, Suite 147 Washington, DC 20001 Monroeville, PA 15146
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Docket No.(s)50-446-CPA LB M&O RE DOW EXT. REQUEST Dated at Rockville, Md. this 20 day of October 1992 ,
Office of thepretary of the Commission 4
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UNITED STATES OF AMERICA 1 OCT 131992
(
NUCLEAR REGULATORY COMMISSION gyg$
ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
) Docket No. 50-446-CPA TEXAS UTILITIES ELECTRIC COMPANY, ) ASLBP NO. 92-668-01-CPA
) (Construction Permit
) Amendment)
(Comanche Peak Steam Electric )
Station, Unit 2)
)
PETITIONERS RESPONSE TO MOTION FOR EXTENSION OF TIME TO FILE BRIEF BY SANDRA LONG DOW dba DISPOSABLE MICKY WORKERS DOW OF COMANCHE PEAK STEAM ELECTRIC STATION AND R.
Pursuant to the October 6, 1992 Order of the Atomic Safety Irene Orr, D.I. Orr, and Licensing Board (" ASLB") , Petitioners B.
Joseph J. Macktal and S.M.A. Hasan (i.ereinafter " Petitioners")
hereby respond to Sandra Long Dow'r., and R. Micky Dow's (" Dows")
' motion to allow a 30-day extension of time to file a brief in
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response to the September 11, 1992 Memorandum and Order of the ASLB.
It cannot, in good faith, be disputed that the Dows have developed a wealth of information directly relevant to this proceeding. The record amassed in the prior ASLB licensing and Constructica Permit Amendment proceedings is extensive and the Dows were involved in an extensive time-consuming search for
' factual information directly related to the contention raised by Petitioners in the instant proceeding. Through discussions prior to the submission of Petitioners' November 5, 1992 supplemert, Petitioners' counsel had contacted the Dows and, given the vastness of the record, had come to rely on the Dows to provide this Board with factual information that only the Dows can 4
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1-l l- provide at this juncture. For reasons.outside thefcontrol of g' -
l Petitioners, the Dows were unable to file their brief on November
- 5, 1992. But, this Board should note that Petitioners l
specifically reference in their November S, 1992 supplement that 4
i information in the control and possession of the Dows was i indispensable to demonstrate that disputed facts exist with respect to the contention Petitioners' seek-admission. E,ge ~
Petitioners' supplement at p. 28, fn. 18.1 Petitioners submit that, irrespective of-whether the Dows l
can establish good cause for their need for an extension, Petitioners were harmed by the_ Dows' inability to file _ on time as -
Petitioners came to rely on the Dows to supplement the factual record with respect'to-information solely in the control and
! possession of the Dows. - -
! Last, Petitioners wish to note that this is the first i
extension of time sought by any- of the parties and, 'as the other I
parties have yet to file a response to Petitioners brief,--no real i
f prejudice appears to be implicated by the Dows' . request for an -
L I extension of time.
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'1' Petitioners specifically' relied on the facts in the-control and~ possession of- the Dows as evidence; demonstrating = that l
a factual ~ dispute exists with respect to whether Texas- Utilities--
has repudiated.its past corporate: polices.- In. order for this-tribunal to-better weight the weight of this evidence -it'is critical that the Dows be, at'.a minimum.-allowed to supplement ~
- the factual record with respect to the contention Petitioners now i seek to have admitted.
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e WHEREFORE, Petitioners respectfully suggest that, in the interest of creating a full and complete record, the Dows be allowed to file their brief out of time.
Respectfully submitted, N
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Michael D. Kohn Stephen M. Kohn Kohn,.Kohn and Colapinto, P.C.
517 Florida Avenue, N.W.
i Washington, D.C. 20001 (202) 234-4663 Attorneys for Petitioners i
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was served upon the following parties by U.S. Mail, first class, being placed in the LeDroit Park Post Office Annex on October 8, 1992:
Secretary, U.S. Nucelar Regulatory Commission Washington, D.C. 20555 4 Hon. James H. Carpenter
- Atomic Safety and Licensing Board Nucelar Regulatory Commission Washington, D.C. 20555 Hon. Morton B. Margulies Chairman, Atomic Safety and Licensing Board Nucelar Regulatory Commission Washington, D.C. 20555 Hon. Peter S. Lam Atomic Safety and Licensing Board Nucelar. Regulatory Commission Washington, D.C. 20555 t
George Edgar, Esq.
Newman & Holtzinger, P.C.
1615 L Street, N.W.,
Suite 1000
- _ Washington, D.C. 20036 R. Micky Dow l 322 Mall Blvd., # 147 Monroeville, PA 15146 Janice E. Moore, Esq.
Office of the General Counsel l
U.S. Nuclear Regulatory Commission
. Washington, D.C. 20555 Michael D. Kohn e
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COKMISSION ]
ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Morton B. Margulies, Chairman Dr. James H. Carpenter Dr. Peter S. Lam
@ Docket No. 50-446-CPA In the Matter of i 9 ASLBP No. 92-668-01-CPA Texas Utilities Electric @
Company 6 (Construction Permit
@ Amendment)
(Comanche Peak Steam Electric Q Station, Unit 2) @
Q MOTION FOR REHEARING BY R. MICKY DOW, PETITIONER Comes now, R. Micky Dow, hereinafter Movant, and files this, his Motion For Rehearing, of a Memorandum and Order, issued October 19, 1992, in the above-styled and numbered cause, and in support of which would show:
I.
BACKROUND In a Memorandum and Order dated and served September 11, 1992, the Board established a schedule for amending the petitions, by all parties seeking intervention and hearings, the same being for the purpose of supplementing them with contentions for litigation at a hearing. The filing date was set at "no later than October 5,1992."
On October 5, 1992, both petitioners, Sandra Long Dow dba Dis-yosable Workers of Comanche Peak Steam Electric Station, and R. Micky Dow, filed their Motion For Extension of Time, wherein they requested the Board grant them a thirty day extension of time to file their a-MOTION FOR REHEARING BY R. MICKY DOW, PETITIONER
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mended petition, and assert their contentions; and, on October 7, 1992, the Board issued an order requiring all responsive pleadings to that motion to be mailed, no later-than, October 3, 1992.
On October 19, 1992, the Board issued the Memorandum and Order, I
! the subject of this motion, wherein the Board stated, aon page 4, - there-i of "For movants to prevail . . . they have the burden of showing good cause. . . . It is a burden they have not met.", and,did, thereby, j deny the motion for extension of time.
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i ARGUMENTS
! A. The Board Erred In Assertion That Good Showing Not Met.
l This movant's statements that he was confined, from September 3, i
i 1992, until, on or about, October 3, 1992, is more than a sufficient showing of good cause for his inability'to make timely filing. The l
fact that the order establishing a schedule for filings was not is-sued until September 11, 1992 is prima facie that this movant could E not have known about the same. As movant stated in his-original mo-tion, his place of confinement was Hugo, Colorado. .
He further averred-i I that he was denied communication with his spouse. How, then, could he i have known_ of an order,1 by this - Board,- which. would have, certain.y, been sent to his' residence in Pennsylvania,-and not colorado? As was also stated, . in.his request for extension,ewhen he did learn of the-i '
! scheduling order, he'immediately responded v'ith.the only manner'of i
- pleading 1 the circumstances allowed, that ofi a
- request ' for extension of time.
It is of no consequence,-or merit,.whether this movant vac pre-j cluded from the knowledge-of the scheduling order by' virtue of-his be-i
' -MOTION FOR REHEARING BY R. MICKY DOW, PETITIONER ,
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ing confined in the Lincoln County Jail, in Hugo, Colorado; Walter Reed Hospital, in Washington, D.C.; or, lost, in Yellovstone National Park. What is of consequence, and certainly has merit, is that this movant had no knowledge of the scheduling order, due to circumstances of which he had no prior knowledge, or control, that prevented him from being at his residence, in Pennsylvania; and, in addition, was not able to have contact with anyone, at that residence, to advise him i of the receipt of the same. What would follow, then, is that, what the petitioner was unaware of, he could not adhere to. It vould also follow, that, if one petitioner had all the papers, notes, and mat-erials with him, then his co-petitioner was powerless to do anything on her own, as was clearly pied in the request for extension. It then would seem, that the most logical, and only practical filing that could be.made, when first finding out about the schedule giving the i October 5 date as the final date, and only discovering that on Octo-ber 3, 1992, would be to file a request for extension. The key point of merit is established by public record, court transcript and these petitioners averments in their request. If the Board finds these to
! be lacking in credibility, and or truth, then an order to show cause, not denial is more in order, and should have issued.
D. The Response By The Utility Ludicrous, Barely Worthy Of A Reply.
As reference was made to it, by the Board, the movant vill make a minimul reply to the response of Texas Utilities. The very wording and styling of the pleadings submitted by Texas Utilities constitutes an ever downward spiraling in credibility and demonstrates, not only a decided lack of professionalism, but tends to underscore this mov-ant's primary contention that they lack the competence and capability MOTION FOR REHEARING BY R. MICKY DOW, PETITIONER __
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1 to operate the CPSES facility. One newspaper account, of this movant, l
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! described him as a " skinny, one-legged , tattoed, Indian, " outlaw" at-1 j torney. How can one, described thusly, be such an apparent threat to a multi-million dollar corporation, and in such a v;y as to evoke the I
! detailed, and theatrical search of the English language, for a dif f er-l f ent set of adjectives, each and every time, with which to attempt to have a discrediting influence over these petitioners' pleadings?
Let us please recall, with a degree of accuracy, exactly WHAT was i yled in the Request For Extension of Time. This movant has never in-I j dicated, mentioned, and, more accurately, alleged, any manner of 1
" scheme",-but, rather, stated "The suspect conditions . . . are clear-l ly indicative of inte rf erence . . . . , " and to editorialize an aver-ment to preclude that it was made in an unsubstantiated manner, by-its 4
- very author, .is not, at all, adherent to the rules of good pleadtag.
i Lines 3-6, of page 3, of the Request For Extension of Time, clearly, j again, show, that it was pied in specifics that "the parties could not i
l confer-vith each other . . . and because all other materials were with 1
R. Micky Dov, nothing .could be prepared or filed prior to this date.".
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1 Is it to be believed that, because this movant failed;to identify the
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4 other " party" as Mrs. Dow, "the' utility claims that nothing-.(emphasis
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{ added) was shown. . . . "? This utility is doing nothing less than j proving movant/ petitioners' case for them by their very conduct, and 5
movant would ask -when some of the very terminology that is used as an l
4 l' abuse, by this utility, will be directed toward them, by way of dis-I- ciplinary_ action? - This movant prays 'the Board' not treat the foregoing as simple argument,'but take a'hard look at the style itself, its man-ner, and more particularly, its design and intent.
, MOTION FOR REHEARING BY R. MICKY DOW i ..-.
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e C. Only Credible Arqument Submitted By Petitioners For Intervention.
It is imperative that the Board take judicial notice of the de-tail and impact of Petitioners' For Interventions' response in sup-port of the request for extension of time, and to look at it f rom an angle of understanding the reaction of Texas Utilities. The entire history of this matter has been the very personal, orchestrated, at-tempt to preclude, at whatever cost, the parties Disposable Workers of Comanche peak Steam Electric Station, and R. Micky Dov, from ever achieving a forum whereby they can introduce the evidence they have accumulated, as they know what its result will be.
It is equally important to remember that this movant is not an l attorney, is an indigent, and has attempted to adhere to the rules, scheduling, and all other requirements in n.s timely and professional manner as possible; and, that, although, the required contentions were not filed, as he did not find out about the schedule until two days before it was exhausted, he did, with a great deal of difficulty, get a logical request for extension filed in a timely fashion. By NRC i regulation, the construction permit is not suspended by any challenge to it, construction continues, and, therefore, a short delay is not, and cannot be construed, to be prej udicial to any but the petitioning parties, who have stated they have no argument with delay. In most manners of litigation, one continuance is granted as a matter of right upon any reasonable request. This is the first and only such request.
D. The Response Of The NRC Staff Is Also Without Merit Or Logic.
It was, again, clearly stated in the Request For Extension of Time that all of the papers, materials, evidence, and equipment, were with 1
-Mr. Dow, and were, therefore, unavailable to Mrs. Dov. The word all MOTION FOR REHEARING BY R. MICKY DOW, PETITIONER ;
S S is seif-explanatory, in itself; and one would think it to be, at least in this case, synonymous with only. The statement "she fails to ex-plain how she could not otherwise obtain the knowledge necessary to prepare the documents to support the petition. . . . ,
in view of the very nature of both the circumstances and the contents of the pleading itself, are not only ludicrous, but preposterous.
It is idiotic to assume, much less infer, that these parties, in view of their well documented record of relentless litigation in this matter, have merely j ust sat back and "let the clock tick away" with-out making every effort to overcome a situation which was not of their design or orchestration, and certainly not under their control, which caused them to file for a request for extension.
E. Irrefutable Statement Of Fact Not To Be Confused With Narrative.
These petitioners, and particularly this movant, based their re-quest for an extension of time an one primary factor, and one factor alone. This movant averred that he was arrested in Limon, Colorado on September 3, 1992, held in the Lincoln County Jail, in Hugo, Colorado, until October 3, 1992, without access to communications with his wife and co yetitioner, access to any manner of legal materials, method of preparation, and, even, the mails. He also stated that he was separ-ated from his evidenciary materials, case notes, and equipment. Any other substance or matter pled, was done so hypothetically and was clearly indicated as such. Movants personal feelings and allegations as to the cause of his confinement are matters which can be addressed at a later time, but in no way change or alter the f acts as stated hereinabove. This is not a lack of credibility, but, apparently, the failure to understand the obvious. As a mere aside, to the statement MOTION FOR REHEARING BY R. MICKY DOW, PETITIONER _ - . - - . ._ _ .
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on page 5, which states, "Other petitioners (quite ambiguous, as there are but one other set of petitioners) .. . have met the October 5 fil-ing date and none have reported any bizarre treatment.", can be qualif-ied in several respects, first with the phrase, "in this instance" as this movant is quite sure Mr. Macktal would argue the1 point , and this_ -)
l entire matter is filled with the mistreatment of parties;.however, for-tunately for them, none vere arrested, as was this movant. An arrest !
g is most definately,-on its face, not bizarre.
The Board is respectfully requested ~ to search the logic of ' para-graph 2 on page 5, and reminded of the attention given to it herein-above. If this movant was arrested and confined in Colorado from the 3rd of September until the 3rd of October, 1992, and not: allowed suf-ficient communication, how could he be aware of a scheduling order mailed to his home in pennsylvania af ter the lith of September? In further question of that paragraph,.the Board is' respectfully remind-ed that October 3,1992 is a Saturdayr and, _ October 5, 1992 is a Mon-day. How can this movant provide, other than by averment, probative evidence of a j ail confinement, in the span of one eight hour business day, without the benefit of subpoena, which ' consists of records which have either not~yet been transcribed by the court, or jail records which have not yet been written or filed. _Once, again, L an order to show cause. would 'have .been' more appropriate, rather than outright dis-1 missal and/or denial of the request. 1 1
, F. Delay Shown To Be Immaterial By Board's Very Action.
petitioners, and, more particularly,ithis movant,_made a request for an extension of time, in order to finish preparing and submit their supplemental pleading to_this Board. The suggested length of f tine in MOTION FOR REHEARING BY R. MICKY DOW, PETITIONER _ . - . . - _ _ _ . . . _ - . , , _ , ,. _
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i- that request was for thirty days, and the Board, certainly, had the discretionary power to shorten or lengthen it accordingly, in the ab-
- sense of any specific showing by the petitioners for:a need of exact-ly thirty days. As has been shown, by this movant and the other peti-tioners, no prej udice will result from granting the-request. What-is further proof that no prejudice will result is that it took this Board 14 days torrender its decision on the request,_which is fully one-half the period of time requested. Movant _ would respectfully ask, why not i render a decision granting five days from the'issuanceoof the memoran-l dum and order?
i III.
! CONCLUSIONS l
This movant would submit that, in fact, a good cause showing'for l- the granting of an extension of time has been given to this Board. The
! movant would further-submit that the granting-of the extension.will in no way cause prejudice to the utility or the NRC,_as it can have no i
I effect upon continued construction of Unit 2, at CPSES. The other pe-
! titioners to this matter support the request, and.they are they only i
other parties who might be prejudiced by the extension, e
j_ Surely-this Board does not,.in good conscience, believe that-the l present memorandum and order-would, or could, ever_ survive a review by i-l the appellate court. :There are some very serious discretionary and l due process concerns herein. Neither-the utility,.or the NRC, have in-1:
troduced one fact whi'ch would refute anything alleged, and/or. averred i
by these petitioners and, more particularly, this movant. In keeping with the presumption of truthfulness,--the Jprecepts of Rule 11"of the I Federal Rules.of Civil Procedure, it is far more viable, more practi-
' MOTION FOR REHEARING BY R. MICKY DOW, PETITIONER l 1
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cal, and equitable, that, l'f the Board does entertain serious doubts about the request for extension of time, it issue an order to show cause why same should not be granted, and let the parties submit their t
supportive materials. To~ render a decision, which would be disposa-tive of these partys' participation, based upon nothing more than the I
theatrical blustering of the utility, is, vat best, arbitrary, and can- _
not survive review.
WHEREFORE,. PREMISES CONSIDERED, _this movant'would respectfully request a period of ten days,.in which to file a supplemental pleading to.the original petition. In addition, movant would hereby' attach and incorporate by reference,-the same as if fully copied and set fort.h at-length, a copy of'the statement prepared for both-the Federal Bureau of Investigation, and the Department of Justice,- with. regard ~ to- the 'in-cident which caused the filing of the original request, for reference .
by this Board.
Respectfully submitted,. .
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R.=MICKYDOW,Jpyoise.
P.O. Box 875 Monroeville, Pennsylvania 15146-(412) 823-9043 Movant MOTION FOR REHEARING BY R. MICKY DOW, PETITIONER -
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CERTIFICATE OF SERVICE This is to certify that the original of the foregoing Motion For Rehearing By R. Micky Dow, Petitioner was telefaxed to Emile L. Julian Chief, Docketing and Service Branch, Office of the Secretary, with the original being sent by courier and a true and correct copy sent to the 4
yarties listed below on this the 10th day of November, 1992.
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Affiant L\ ' ~
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. Of fice of Commission Appellate Administrative Judge Adjudication Morton B. Margulies, Chairman d
U.S. Nuclear Regulatory Comm. Atomic Safety and Licensing Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 I
Administrative Judge Administrative Judge James H. Carpenter Peter S. Lam-Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comm. U.S. Nuclear Regulatory Comm.
Washington, D.C. 20555 Washington, D.C. 20555 4
Marian L. Zobler, Esquire George L. Edgar, Esquire Michael H. Finkelstein, Esquire Counsel for TU' Electric Office of the General Counsel Newman & Holtzinger, P.C.
a hing on D 20555 W shi g on D.C bb3 Michael D. Kohn, Esquire Counsel For Petitioners Kohn, Kohn & Calapinto, P.C.
517 Florida Avenue, N.W.
Washington, D.C. 20001 M
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IN THE UNITED STATES. COURT OF APPEALS !
FOR THE DISTRICT OF COLUMBIA CIRCUIT SANDRA LONG DOW dba DISPOSABLE }
WORKERS OF COMANCHE PEAK STEAM ELECTRIC STATION, and R. MICKY DOW , }
Petitioners, ) No.
t vs. )
THE UNITED STATES NUCLEAR REGULATORY COMMISSION, ) __,
oW7 Respondents. )
PETITION FOR REVIEW CO ~
OF ADMJELSTRATIVE ORQER Sandra Long Dow dba Disposable Workers of Comanche Peak Steam Electric Station, and R. Micky Dow, hereby petition the Court for review of the order, issued by the United States Nuclear Regulatory Commission, December 14, 1992, in action number DD-92-06.(Occket l
Number 50-445/446 [2.206]), wherein the Director of the NRC denied the pet i t ion, pursuant 10 CFR 2.206, for revocat ion of license, and
' the Commission ref used to review same, regarding the Comanche Peak Steam Electric Station, located in Glen Rose, Texas, owned and op-I erated by Texas Utilities Electric Company of Dallas,. Texas.
Respectfully submitted, b M SANDRA LONG DOW bba(dfSPOSABLE WORKERS OF COMANCHE PEAK STEAM ELECTRIC STATION, pro se Dept. 358, P.O. Box 19400 Austin, Texas 78760-9400 512-280-5833 R. MICKY DOW, p ho 's'e Dept. 368, P.O. Box 19400 Austin, Texas 78760-9400
e e' CERTIFICATE OF SERVICE LIST This is to certify that a true and correct copy of the fore-going was sent, by regular U.S. Mall, to the parties listed below on this the 28th day of December, 1992.
. c Affiant \
Senior Resident Inspector Jack R. Newman, Esquire ,
U.S. Nuclear Regulatory Comm. Newman & Holtzinger, P.C.
P.O. Box 1029 1615 L St reet , N.W. , Sui te 1000 Granbury, Texas 76048 Washington, D.C. 20036 Regional Administer, Region IV Chi e f , Tx. Bur. Rad i at ion Cont.
U.S. Nuclear Regulatory Comm. Texas Department of Health 611 Ryan Plaza Drive, Suite 1000 1100 West 49th Street Arlington, Texas 76011 Austin, Texas 78756 Mrs. Juanita Ellis, President Honorable Dale McPherson C.A.S.E. County Judge, SomerveI County 1426 South Polk P.O. Box 851 Dallas, Texas 75224 Glen Rose, Texas 76043 Owen L. Thero, President William J. Cahill, Jr.
Quality Technology Company Group Vice President, Nuclear Lakeview Mobile Home Park, #35 TU Electric 4793 East loop 820 South 400 North Ol ive St reet , L.B. 81 Fort Worth, Texas 76119 Dallas, Texas 75201 Texas Utilities Electrei Co. GDS Associates, Inc.
c/o Bethesda Licensing Suite 720 3 Metro Center, Suite 610 1850 Parkway Place Bethesda, Maryland 20814 Marietta, Georgia _30067-8237 William A. Burchette, Esquire Mike Kohn, Esquire Counsel for Tex-La Electric Kohn, Kohn, & Calapinto Cooperative of Texas 517 Florida Avenue, N.W.
Jorden, Schulte, a Burchette Washington, D.C. 20002 1025 Thomas Jefferson Street, N.W.
Washington, D.C. 20007 Thomas E. Murley, Director Office of Nuclear Reactor Reg.
Samuel J. Chilk U.S. Nuclear Regulatory Comm.
Secretary of the Commission Washington, D.C. 20555 U.S. Nuc l ear Regu l atory Comm.
Washington, D.C. 20555
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- UNITED STATES o NUCLEAR REGULATORY COMMISSICN
( ;$ W ASHIN GT ON, D.C. 20$55 December-17, 1992 OFFICE OF THE SECRETARY Ms.-Sandra Long Dow Mr. R. Micky Dow Dept'. 368-P.O. Box 19400- i Austin, Texas 78760-9400 Re: Docket No. 50-445/446::(2.206)
Dear Mr. and Ms. Dow:
This is to inform you that the . time provided by NRC ' regulation within = which the- Commission - may act to review the Director's Decision (DD-92-06) in this docket has expired. The Commission has declined any review.
Accordingly,~the decision became-final agency action on December 14, 1992.
Siicerely, .
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Samuel 1. Chilk-
-Secretary of the commission cc: Service List
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/ o g UNITED STATES
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NUCLEAR REGULATORY COMMISSION W ASHINCTON, D. C. 20555
- t November 19, 1992
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I Docket Nos. 50-445 and 50-446 Ms. Sandra Long Dow
, Mr. R. Mickey Dow 322 Mall Boulevard #147 Monroeville, Pennsylvania 15146
Dear Mr. and Ms. Dow:
I am responding to your Petition of May 19, 1992. Your request was referred i
to the staff in accordance with Section 2.206 of Title 10 of the Code of Federal Regulations (10 CFR 9 2.206).
Enclosure 1 contains the Director's Decision (DD-92-06) responding to your Petition. For the reasons stated in the Director's Decision, I find no adequate basis in your Petition for taking the action that-you have requested.
The staff previously evaluated most of the allegations _you have made, and the licensee had corrected the deficiencies you described. To address certain allegations raised in the Petition, a copy of the Petition was provided to the U.S. Nuclear Regulatory Commission (NRC) Inspector General (IG) on June 10, 1992 for any action the IG considered appropriate.
A copy of this Decision will be filed with the Secretary of the Commission for the Commission to review in accordance with 10 CFR S 2.206(c). As provided for in this regulation, the Decision will constitute the final action of the Commission 25 days after the date of issuance of the Decision unless the Commission, on its own motion, institutes a review of the Decision within that time.
I have enclosed a copy of the notice, which is being filed with the Office of the Federal Register for publication.
Sinc rely,
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"homas E. Murley, Director
- Office of Nuclear Reactor Regulation L
Enclosures:
- 1. Director's Decision
- 2. Notice cc w/ enclosures:
.See next page r-
e o cc w/ enclosures:
Senior Resident inspector Jack R. Newman Esq U.S. Nuclear Regulatory Commission Newman&Holtzlnger.
P. O. Box 1029 1615 L Street, N.W.
Granbury, Texas 76048 Suite 1000 Washington, D. C. 20036 Regional Administrator, Region IV U.S. Nuclear Regulatory Commission Chief, Texas Bureau of Radiation Control 611 Ryan Plaza Drive, Suite 1000 Texas Department of Health Arlington, Texas 76011 -1100_ West 49th Street Austin, Texas 78756 Mrs. Juanita Ellis, President.
Citizens Association for-Sound Energy Honorable Dale McPherson 1426 South Polk County Judge Dallas, Texas 75224 P. O. Box 851.
Glen Rose, Texas 76043 Owen L. Thero, President
- Quality Technology Company Mr. Wiliam J. Cahill, Jr.
Lakeview Mobile Home Park, Lot 35 Group Vice President, Nuclear 4793 East loop 820 South TU Electric fort Worth, Texas 76119 400 North Olive Street, L.B. 81 Dallas, Texas 75201 Mr. Roger D. Walker, Manager Regulatory Affairs for Nuclear Engineering Organization Texas Utilities Electric Company 400 North Olive Street, L.B. 81 Dallas, Texas 75201 Texas Utilities Electric Company c/o Bethesda Licensing 3 Metro Center, Suite 610 Bethesda, Maryland 20814 William A. Burchette, Esq.
Counsel for Tex-La Electric Cooperative of Texas Jorden, Schulte, & Burchette 1025-Thomas Jefferson Street, N.W.
Washington, D.C. 20007 GDS Associates, Inc..
Suite 720 1850 Parkway Place Marietta, Georgia 30067-8237 L
_____._.__.2___m -
._ .i.a.-____.2__ ,_w..__.
y D0-92-06 UN11ED STATES OF AMERICA NUC' JAR REGULATORY COMMISSION OFFICE OF .NCLEAR REACTOR REGULATION Thoma E. Murley, Director In the, matter of )
)
TV ELECTRIC COMPANY ) Docket Nos. 50-445
) and 50-446 (Comanche Peak Steam Electric ) 10 CFR S 2.206-Station, Units 1 and 2) )
DIRECTOR'S DECISION UNDER 10 CFR 2.206
- 1. INTRODUCTION On May 19, 1992, Ms. Sandra long Dow, Disposable Workers of Comanche Peak Steam Electric Station, and Mr. R. Micky Dow (the Petitioners) flied a request (the Petition) with the Director, Office of. Nuclear Reactor Regulation, requesting that the U.S. Nuclear Regulatory Commission (NRC) take-action regarding the Comanche Peak-Steam Electric Station (CPSES),
Units 1 and 2.
Petitioners requested that the Commission order the immediate shutdown of Unit 1 of the Comanche Peak Steam Electric-Station and institute a proceeding to modify, suspend, or revoke the license held by the Texas Utilities Electric Company (licensee) for Unit 1. They also requested that the NRC suspend considering whether to. extend'or modify the construction permit for Unit 2 of the facility until. resolving any proceeding regarding the license for Unit 1. Petitioners allege, as a ,
basis for this request, that the licensee has failed to demonstrate the necessary character and capability that are the primary factors to be
o 4 considered in grantirp a license, and has shown a " downward spiral" in violations, reportable incidents, and NRC staff concerns. Petitioners allege that the NRC staff failed to respond to requests for information about several of these incidents. Petitioners also offered, as they have previously, to give the Commission transcripts of 16 reels of audio tapes that contain conversations between the licensee and certain individuals that allegedly indicate duplicity between Region IV and the licensee.
Previously, on February 20, 1992, Petitioners filed a motion for late intervention to reopen the reSES operating license proceeding (Docket Number 50-445) and the construction permit amendment proceedings (Docket Number 50-446). On April 4, 1992, Petitioners filed a motion seeking to present oral argument before the Commission on their February 20, 1992 motions. On August 12, 1992, the Commission denied these requests. Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-92-12. Additionally, Petitioners' request to reopen the proceedings for the operating license for Units 1 and 2 because of alleged deficiencies in the labeling of pressure valves and limit switches was referred to the staff for consideration as a Petition submitted pursuant to 10 CFR 2.206. That issue will also be addressed herein.
, in my letter of June 10, 1992, I acknowledged receipt of the May 19, 1992, Petition and stated that the NRC would take action on Petitioners'
.\ k n i
k' l
3 I i request within a reasonable time.' In an Order dated July 28, 1992, the l ,
staff extended the construction completion date for CPSES Unit 2 to i August 1995. This action constituted a partial denial of the Petition, ;
specifically the request to suspend consideration of extension or modification of the construction permit for Unit 2. In a letter of July 28, 1992, I informed Petitioners of the partial denial. The staff based its decision on 10 CFR 50.55(b), which states that the construction completion date may be extended for a reasonable period of time upon a showing of good cause. In its request dated February 3, 1992, the licensee demonstrated that the delay in construction of Unit 2 was ;
necessary to concentrate resources on the completion of Unit 1. The NRC agreed that a period of three years is necessary for construction and testing, plus a period for unanticipated delays.
I have evaluated the Petition and have determined, for the reasons set forth below, that no -adequate basis exists to take action against the licensee for CPSES, Units 1 and 2. Accordingly, the Petition is denied.
II.-DISCUSSION Petitioners support their request with several incidents that occurred-since-November 1991. Petitioners allege that the following matters demonstrate the inadequate character and capability of the- - -
licensee to hold licenses:-
i 1 Because Petitioners assert wrongdoing by the NRC Region IV staff, the Petition was also ref9rred to the Office of the Inspector General- on June 10,: 1992, for ',uch action as it may deem appropriate.
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- 1. A leak in a pressure tank caused 100 mile-per-hour winds in the access tunnel between Units 1 and 2, which resulted in a female employee being blown into a radiation area.
- 2. Resin spilled into the core because of personnel error and misaligned valves.
- 3. A " hot" valve in Unit I was cut in two, causing a radiation release and exposure to several individuals.
- 4. Sample lists of HRC documents available in the public document room were submitted with the Petition. The lists contain 26 documented " reportable incidents", numerous areas showing direct concern by Region IV, and at least six reactor trips.
- 5. The NRC proposed fines for violations by the licensee totaling close to $100,000 for 1992.
i 6. An additional reactor trip occurred, after which the spent fuel pool for Unit I was without cooling water for approximately 20 hours2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br /> causing an abnormal rise in temperature. Petitioners submit this incident as evidence of a continuing problem involving the use of improperly trained control room personnel.
- 7. Thr Petitioners submitted, as an attachment to the petition, a 140tograph which they assert shows Comanche Peak control room staff to be asleep, which they state is known to be the
" common manner" for control room personnel, i
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- 8. Petitioners allege that the licensee has failed to imi and mislabeled pressure valves and limit switches on both units.
Petitioners submitted several written statements from Texas Utilities employees and local citizens expressing concern about safety of the plant in support of the Petition. The statements of Ron Jones and Dobie Hatley allege specific safety concerns, which the NRC previously evaluated when it considered the February 20, 1992, motion of Petitioners to reopen the record. The Commission found that these statements did not raise substantial safety concerns. Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Units 1 and 2), CL1-92-12, (August 12,1992). The remaining statements express a general concern for the safety of the plant or the treatment of employees but present no facts or evidence to support Petitioners' request. Sixteen signed statements express support for Petitioners' Motion to Reopen the Record but do not address issues raised by the Petition herein. Five affidavits or letters, addressed to whom it may concern, express general concern about the operation of Comanche Peak and about the presence of waste disposal sites containing toxic and radiation contaminated materials.
The NRC previously determined that waste disposal sites at Comanche Peak do not raise a substantial safety concern and denied a request for enforcement action under 10 CFR 2.206. Texas Utilities Electric Co.
(Comanche Peak Steam Electric Station, Units 1 and 2), DD-91-04, 34 NRC 2011 (1991).
Each of the issues raised in the Petition is summarized and evaluated below.
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- 4 A. [moloyee in.iured in airlock Petitioners claim that a leak in a pressure tank caused 100 mph winds in the access tunnel between Units 1 and 2 and resulted in a woman employee being injured when she was blown into a radiation area so hard that she bent welded piping.
In its review of this allegation, the NRC staff found that the licensee had informed the resident inspector of the incident and provided him with copies of a written report, Operations Notification Evaluation Form FX-91-1102. The incident occurred on October 6, 1991, in the personnel airlock between Unit I containment and the safeguards building.
The airlock consists of two air-tight doors which are only allowed to be opened individually during operation to preserve containment integrity.
At the time of the incident, Unit I was shut down in preparation for a refueling outage. Under these conditions, both doors of the airlock are allowed to be open since the containment atmosphere has very low radiation levels. The operators were in the process of opening the airlock to provide access to containment. The outer door was open and the differential pressure across the inner door was measured to be 0.2 psid. A negative pressure in containment is desirable for containment integrity. The operators did not recognize this as a high pressure differential that could be dangerous. The operators also did not close the containment purge supply and exhaust dampers prior to defeating the door interlocks, contrary to operating procedures. When the inner door was unlatched, the force swept the employee into containment. The actual speed of the wind is not known. The employee hit a 3-inch insulated pipe
O ~v with her forearm and was then pulled around a corner where she struck more piping. There was no report of an overexposure of radiation to the employce. The employee was examined on site and returned to work when no injuries were found. Examinations and x-rays taken later by the employee's doctor revealed no broken bones or deformities.
The licensee evaluated the incident to determine root causes. The licensee took corrective action by informing all employees of the event, emphasizing the failure to close the purge dampers before opening the doors, and the failure to recognize the danger of opening a door against a differential pressure. The licensee added this incident to the training program and revised the training to cover the potential danger of a differential pressure. The licensee also changed the procedure for opening airlock doors to address these concerns.
Petitioners are concerned that Region IV treated this incident as unreportable. The NRC requires employee injuries to be reported only when a radioactively contaminated person is transported to an offsite medical facility for treatment. 10 CFR 5 50.72. The employee in this incident was treated at the site. The event did not result in damage to any safety equipment, did not change plant conditions, and did not affect the safety of the plant. Because it was not in any of the categories mentioned, the event is not required by regulations to be reported to the NRC. Moreover, the licensee informed the resident inspector of the event and provided him with copies of the internal report containing several written statements by eye witnesses, a thorough review of the root causes, and copies of documents which implemented the corrective actions.
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- 4 Although the event was not reportable, the NRC was informed of the event by the licensee at the time of occurrence. The NRC staff followed up to ensure that the licensee took appropriate actions to correct deficiencies in its training and procedures. Petitioners provide no new information and no basis to conclude that the licensee is unable or unwilling to operate CPSES in a safe manner. Accordingly, I conclude that tb incident does not present a substantial public health or safety concern that justifies the requested action.
B. desin in the core Petitioners contend that resin was spilled into the core as a result of personnel error. In its review of the incident, the NRC staff found that on November 6, 1991, some fine particles of resin and three resin beads bypassed the resin traps on a demineralizer filter for the spent fuel pool. The demineralizer is part of the spent fuel pool cooling and purification system which has two redundant trains, each consisting of two cooling pumps, two coolers, two purification pumps, two demineralizers, and several filters and skimmers. At the time of the incident, both trains of the purification system were running. When resin particles were discovered in a routine sample taken at the outlet of demineralizer 2, the licensee shut down that train of the purification system af.d isolated it to avoid releasing any more resin into the spent fuel pool, the refueling cavity, and ultimately into the reactor coolant system. Train I continued to purify the refueling cavity. The cause of the resin release was a failed resin trap and not operator error as s _ ._ _ , , . -- _ __ . . . _ . . _ . , _ _ .
o ~,.
alleged by Petitioners. Shortly after the event, the licensee informed the resident inspector and gave him a copy of the written report of this incident, Operations Notification Evaluation Form FX-91-1455.
As a short term corrective action to maximize cleanup of the spent fuel pool and reactor coolant system, the operators increased the amount of reactor coolant sent through the chemical and volume control system and placed three temporary filtet s in service.
Westinghouse Electric Corporation evaluated the effect of resin in the reactor coolant system in a letter to the licensee dated November 19, 1991. Westinghouse stated that the resin products are not considered to be corrosive to primary system piping and that normal use of the chemical and volume control system is adequate for control of system cleanup.
Based on the small quantity of resin released, Westinghouse concluded that the material could have had no adverse consequences on fuel assembly integrity or operations. Upon review of the letter, the NRC staff came to the same conclusion.
At the time of the incident, the NRC staff determined that the licensee took appropriate corrective actions and that the incident was not detrimental to the safety of the plant. Petitioners provide no facts to contradict these findings. Therefore, I conclude that Petitioners have not raised a substantial health or safety concern.
W
~ o C. " Hot" valve cut in two Petitioners claim that a " hot" val /e in Unit I was cut open, causing a radiation release and exposure to several individuals.
On March 17, 1992, a work request was written to have work performed on valve 2CS-7048A, a valve located in Unit 2. However, personnel disatsembled and reassembled valve ICS-7048A, in Unit 1, a valve similiar to the Unit 2 valve which was the subject of the work request. Upon reviewing the work logs after maintenance was completed, a radiation protection technician thought the contamination levels appeared excessively high for what should have been a Unit 2 valve. The contamination levels were consistent with the normal levels in that area of Unit 1. Before the maintenance work was performed, a radiation protection technician had established a radiological barrier around the Unit I valve. Because of the barrier, personnel working on the valve took appropriate precautions and did not receive an overexposure of radiation. After discovering the mistake, personnel performed the required maintenance on the Unit 2 valve.
On August 23, 1992, the NRC issued a Severity Level IV violation for failure to follow authorized work instructions,-citing both this incident and a similar incident that occurred on February 23, 1992 in Unit 1. The NRC documented the incident in Inspection Report Nos.
50-445/92-08 and 50-446/92-08, April 23,1992.
The NRC staff found the licensee's corrective action to be suitable.
Af ter the event, Unit 2 management suspended all activities to disassemble or reassemble components within the operations controlled
o n area for permanent plant equipment in Unit 2 until the licensee reviewed the incident. After reviewing the incident, the licensee took short-term actions requiring double verification of component identification before beginning work. A Unit I task team had been formed previously in response to the February 23, 1992, incident. The team was exploring a number of corrective actions regarding procedural compliance to be implemented in Unit 1. The staff found no reason to conclude that the licensee could not or would not operate CPSES safely. Petitioners provide no facts to cont.lude otherwise. Therefore, I conclude that the event does not present a substantial health or safety concern.
D. Rgoortable inciderts and reactor trios Petitioners submitted a sample of weekly reports which they claim contain reports of 26 reportable incidents and at least 6 reactor trips, which Petitioners find excessive. The weekly reports cover the period from January 19 to April 18, 1992, and consist of the Local Public Document Room list of correspondence between the NRC and TU Electric, such as inspection reports, licensee event reports (LERs), periodic operating reports, and general correspondence.
Upon reviewing these documents and NRC records, the NRC staff found that the licensee submitted 10 LERs during this period. These 10 LERs are written reports of nonemergency incidents that occurred at CPSES.
NRC regulations require that licensees report shutdowns, deviations from technical specifications, and events that result in degradation of safety barriers or place the plant in a condition outside of its design basis.
The licensee is also required to include in the report an asscssment of-
i the safety consequences and a description of all corrective actions. 10 CFR 5 50.73. This reporting process ensures that the plant is in a . safe condition after the event and that steps are being taken to avoid repeating the problem. !
The 16 other documents that Petitioners cite were updates or revisions to LERs of events that occurred several months (or years) earlier, and 10 CFR Part 21 reports of defects in components that could f
affect performance.
The monthly operating reports for the period between January-19 and April 18,1992 show that no reactor trips occurred during this period.
]
The licensee reduced power four times to make. repairs but did not shut down the reactor. -During the 19 months between January 1991 and July 1992,' Unit I was shut- down 11 times. The licensee manually shut down the reactor four times for maintenance; once the ' unit was shut down -
for a refueling outage; twice the reactor automatically tripped because equipment failed; and;four trips were caused by operator error.
Therefore,-nearly half of the shutdowns-were initiated by the licensee to improve plant performance or comply with regulations. - The_two automatic reactor trips that resulted from equipment- failu're were'the result of.
problems with the main turbine and did not affect the nuclear or safety-related portion of the plant. In each case-of operator error-related trip, the licensee evaluated the causes of the event and implemented-
~
appropriate. corrective actions. Each event and corrective. action was reviewed by: the NRC resident inspectors and was found to hav'e no safety
-significance. In:each reactor -trip, all systems functioned as expected L
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i to bring the plant to a safe shutdown condition.
The 10 reportable incidents which occurred during the time period specified by Petitioners did not place the plant in an unsafe condition and the reactor did not trip during-this period. The six automatic trips which occurred between January 1991 and July 1992 did not affect- the safety of the plant. Petitioners have not provided any information to ,
contradict this conclusion. The NRC was informed of'each of the events at the time of occurrence and determined that the licensee took appropriate corrective actions. . Accordingly,1 conclude-that Petitioners-have not raised a substantial safety concern.
E. Fines of $100.000
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Petitioners claim that civil penalties of approximately $100,000 imposed for violations by the licensee during ~1992 demonstrate that the-licensee cannot safely operate the plant.
. In evaluating violations to determine the appropriate enforcement-action, the NRC staff assesses the safety and regulatory significance of the violations, the. licensee's corrective actions to prevent future occurrences, and other relevant factors. During its review,_the hRC considers whether a ' violation' warrants shutting down a plant._ In neither of these cases did the NRC staff conclude that the licensee was unable or unwilling ~ to safely operate the facility, or that shutdown of_ the plant was warranted.
- On December 4,- 1991, the NRC proposed imposition of a civil. penalty
- of $25,000 on the licensee. Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Units 1land 2), EA 91-189.(December 27,
.. o 1991). This incident is documented in NRC Inspection Report Nos.
50-445/91-62 and 50-446/91-62 December 27, 1992. The violation involved a misalignment of the residual heat removal system which would have prevented the system from actuating automatically in an emergency. The system was misaligned for 53 hours6.134259e-4 days <br />0.0147 hours <br />8.763227e-5 weeks <br />2.01665e-5 months <br /> while the plant was in hot standby mode. No events oct.9rred during this time that would have required the use of the residual heat removal system, and if this had been necessary, the system could have been properly aligned by opening two crosstie valves. Therefore, while this was a violation of the operating license,.
the misalignment did not pose a serious safety concern. . The NRC staff concluded that- the licensee identified the misalignment, promptly corrected the lineup, and took appropriate actions to avoid recurrence and assure proper control of plant- configurations.
In' July 1992, the NRC proposed imposition of a civil penalty of
$125,000 on the licensee. Texas Utilities Electric Company (Comanche.
Peak Steam Electric Station,-Units 1 and 2), EA-92-107 (July- 23,1992).
The violation resulted from a loss of cooling to the spent fuel pool.
The plant was never in an unsafe condition. This event is discussed:in detail below in Section II.F.
l .The NRC staff reviewed the licensee's corrective actions for both of i
these violations and. concluded that the licensee's management adequately--
l implemented _its commitments and demonstrated _ the_ proper concern for safety _to operate CPSES. Petitioners present no new information and no basis to change these conclusions. Therefore, I find that Petitioners' contention is without merit and.does not present a substantial health or-
O h safety concern.
F. Loss of coolina to scent fuel 9001 Petitioners claim that the spent fuel pool was without cooling for 20 hours2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br />, resulting in an abnormal rise in temperature which would have caused a meltdown if not detected by the resident inspector. Both the licensee and the NRC evaluated this incident in great detail. The NRC proposed imposition of a civil penalty of $125,000. Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Units 1 and 2),
EA-92-107 (July 23, 1992). This incident is documented in NRC Inspection Report Nos. 50-445/92-20 and 50-446/92-20, June 9,1992.
The spent fuel pool is a large pool of water located outside the containment. Fuel bundles that are depleted of most of their uranium are stored in the pool after being removed from the core. The fuel emits a small amount of decay heat (less than 0.001 percent of the heat generated during operation) into the water of the spent fuel pool. The water is cooled by passing through heat exchangers that are cooled by the component cooling water system. At the time of this event, the pool contained only 64 fuel assemblies. The pool has a capacity of 554 fuel assemblies and therefore, the heat in the pool was only a fraction of the design heat load.
On May 12, 1992, the spent fuel pool was without cooling for 17 hours1.967593e-4 days <br />0.00472 hours <br />2.810847e-5 weeks <br />6.4685e-6 months <br /> because the component cooling water system was misaligned. This allowed the temperature to rise 5 degrees from 80 to 85'F. The maximum fuel pool temperature allowed in the Final Safety Analysis Report is -
152*F. Therefore, the pool was new r in danger of overheating. Since
~A e i
l the spent fuel pool water is part of a system completely separate from j the reactor coolant system, the fuel in the core was never in danger of a meltdown. The resident inspector discovered the problem upon finding a discrepancy in the alignment of valves on the control board, not by noticing a temperature rise as alleged by Petitioners. If the alignment discrepancy had not been discovered, the operators would have become aware of the problem when the temperature reached 139'f by an alarm in the control room.
Upon learning of the problem, the operators corrected it by aligning the Unit 2 cooling water to the heat exchanger. This action was a i
violation of the Unit 1 operating license since the Unit 2 cooling system was not under full control of the operations department and was not incorporated into the licensing basis for Unit 1.
The NRC assessed a civil penalty of $125,000 for this violation, primarily because the event demonstrated that managers were not exercising proper control of licensed actions, not because of the safety significance of the event.
Petitioners also claim that the incident was caused by using undertrained operators and that this has been a continuing problem of concern to the NRC as evidenced by an NRC letter of December 15, 1989.
This letter was a request for additional information about the operating experience of the control room staff. A request for additional information is the standard means of obtaining information needed for the NRC to complete reviews and does not imply that the NRC has a safety concern or that the licensee has withheld information. - The licensee's
i 4m e ,. .
i
! 17 i
1 i
i response of December 28, 1989, demonstrated that the licensee had satisfied all requirements for training and experience. '
i
! In reviewing this event, the NRC identified minor training '
i deficiencies related to operator knowledge of design modifications and procedural changes. NRC Inspection Report Nos. 50-445/92-20 and 50-446/92-20, June 9, 1992. The licensee took corrective actions that i included developing more effective methods of informing operators of i design changes, and providing operators with a list of systems that could i be crosstied. <
Petitioners also refer to a reactor trip that occurred 4 days before the loss of cooling to the spent fuel pool tnd which Petitioners allege
, was caused by undertrained personnel. This trip was not related to the loss of cooling event as implied by Petitioners. The trip on May 8,1992, was caused by an inadvertent actuation of the reactor protection system when technicians opened an incorrect power s':pply breaker while calibrating the power monitor module. LER 92-009, June 4, 1992; NRC Inspection Report Nos. 50-445/92-14 and 50-446/92-14, July 1, 1997. The licensee determined that the root cause was using personnel who were inexperienced in this type of calibration. "To correct this problem, the licensee now requires that an experienced technician-supervise all sensitive tasks being performed for the first time. -This event generated no safety consequences since all' systems' responded as.
expected. '
'The July 23, 1992, enforcement action prompted the licensee to ,
evaluate the loss of cooling to the spent fuel pool _ thoroughly.- -The
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1 l licensee and the NRC found no substantial health or safety concern. l l
Petitioners have presented no facts or basis to reach a different l conclusion.
G. Photo of sleepina operators Petitioners submitted a copy of a photograph allegedly showing a ja member of the CPSES control room staff asleep. Petitioners state that j the photograph is the subject of in-plant humor, since sleeping is known i to be the " common manner" for control room personnel. It cannot be
! ascertained from this poor quality copy either whether the person is j sleeping or whether the room shown is in fact the Comanche Peak control i
l room.
The NRC considers inattentiveness by control room operators a very j serious offense. The NRC requires control room operators to be fully i
l attentive at the controls to monitor plant safety status and to take corrective action if abnormal circumstances arise. Random control room f observations by the resident inspectors allow the NRC to check the adequacy of the licensee's programs for enforcing this requirement. The I senior resident inspector at CPSES confirmed that the four resident inspectors normally make-control room observations several times during normal working hours and several times a month during night and weekend l
hours. The residents have never found an operator asleep or inattentive i
in the control room at CPSES.
i i find that Petitioners have failed to demonstrate any merit to their contention and have not substantiated a health or safety concern.-
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l H. labelina deficiencieJi Petitioners allege that an employee of CPSES testified that the licensee failed to label components and mislabeled pressure valves and i
limit switches on both units, While conducting an inspection in October 1989, the NRC found minor labeling deficiencies. NRC Inspection Report Nos. 50-445/89-200 and .
50-446/89-200, February 14, 1990. The inspectors found a number of valves without identification labels, unofficial hand-written tags used to label rooms, and small metal label tags on some components which were difficult to read. The inspectors believed that this could cause operator errors. The licensee had identified the missing labels earlier and was in the process of installing temporary tags. The licensee had initiated a program to improve labeling in 1988 but had delayed implementation. This inspection prompted the licensee to implement the program sooner than planned. The licensee also audited the labeling program and revised administrative procedures to give guidance to personnel on performing independent verification of labeling.
The licensee labeled each of the rooms in Unit 1, and equipment containing both Unit I and Unit 2 components, before the licensing of Unit 1. The licensee scheduled to complete the upgrade program during the first refueling outage in December 1991. lhe NRC inspected the labels four more times and found that the program was on schedule and was.
- being implemented effectively. The NRC documented its findings in l
L l.
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+
Inspection Report Nos, r 445/90-20 and 50-446/90-20, July 23,1990; 50-445/91-32 and 50-446/91-32, August 22, 1991; 50-445/91-41 and 50-446/91-41, October 9, 1991; and 50-445/91-70 and 50-446/91-70, February 12, 1992. During the last inspection, documented in Report Hos.
50-445/91-70 and 50-446/91-70, the staff found that the licensee had completed 95 percent of the label upgrade in Unit I with the remaining labels to be handled by the ongoing label maintenance program.
The NRC considers this to be a closed item because the licensee's labeling program exceeds NRC requirements. The components ed systems in Unit I have been labeled with clear and informative labels which assist the plant operators and maintenance personnel to accurately identify equipment. On March 24, 1992, William D. Johnson, senior Resident inspector at Comanche Peak Unit 1, submitted an affidavit in support of the staff's response to the Petitioners' February 21, 1992, motion to reopen the record. The affidavit summarizes the NRC staff's evaluation of and conclusions about the effectiveness of labeling in the plant.
Therefore, I conclude that the Petitioners have presented no basis to change the NRC staff's conclusion that the licensee's labeling program meets NRC requirements. Petitioners have failed to raise a substantial safety concern.
III. CONCLUSIONS The NRC staff has reviewed the allegations in the Petition that the licensee does not demonstrate the appropriate character or capability to operate a nuclear plant. The incidents described in the Petition, as
examples of the licensee's inability to operate the plant, are either events which had been evaluated and resolved by the NRC staff or are unfounded accusations with no technical merit, and provide no basis for the requested action. The staff assessed the inspections, enforcement actions, NRC documents, and evaluations conducted by both the licensee and the staff, related to Petitioners' concerns. The staff evaluated the 10 exhibits attached to the Petition. Most of these documents are NRC inspection reports or letters and therefore do not present any new information. The remaining exhibits consist of statements written by TJ employees or members of the public which either do not address safety issues or discuss events that do not relate to the issues of this petition. Petitioners have presented neither any information nor any reason to question the continued safe operation of CPSES.
The institution of proceedings in response to a request in accordance with 10 CFR 2.206 is appropriate only when substantial health and safety issues have been raised. See Consolidated Edison Co. of New
,Y.ndt (Indian Poir,t, Units 1, 2, and 3), CLI-75-8, 2 NRC 173,176 (1975) and Washinoton Public Power Sucolv System (WPPSS Nuclear Project No. 2),
DD-84-7, 19 NRC 899, 923 (1984). I have applied this standard to determine if any action is warranted in response to the Petition. For the reasons discussed above, I find no basis for taking any action _in response to the Petition as no substantial health or safety issues have been raised by the Petition. Accordingly, the NRC is taking no action pursuant to 10 CFR 2.206 in this matter.
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! l l A copy of this Decision will be filed with the Secretary of the 1 Commission for the Commission's review in accordance with 10 CFR l
2.206(c).
i l FOR THE NUCLEAR REGULATORY COMMISSION u^T : $ h?t
- Thomas E. Murley, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland this.19th day of November 1992 t
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< 1 7590-01 i UNITED STATES NVCLEAR REGULATORY COMMISSION DOCKET NOS. 50-445 AND 50-446 TEXAS UTILITIES ELECTRIC COMPANY COMANCHE PEAK STEAM ELECTRIC STATION. UNITS 1 AND 2 ,
ISSUANCE OF DIRECTOR'S DECISION UNDER 10 CFR 4 2.206 Notice is hereby given that the Director, Office of Nuclear Reactor Regulation, has taken action with regard to a Petition for action under 10 CFR 2.206 received from Sandra Long Dow and R. Micky Dow (Petitioners) dated May 19, 1992, regarding the Comanche Peak Steam Electric Station, Units 1 and 2.
The Petitioners requested that the Commission order the immediate shutdown of Unit 1 of the Comanche Peak Steam Electric Station and institute a proceeding to modify, suspend, or revoke the license held by the Texas Utilities Electric Company (TU Electric or the licensee) for Unit 1. The Petitioners also requested the Commission to suspend any consideration of extending or modifying the construction permit for Unit 2 of the facility until resolving any proceeding on the license f.or Unit 1.
Petitioners asserted as a basis for their Motion that the licensee failed to demonstrate the necessary character and capability that are the primary factors to be considered in granting a license. .and has shown a ;
" downward spiral" in violations and reportable incidents. Petitioners I also assert wrongdoing by the NRC Region IV staff. To support this.
general assertion, the Petitioners alleged that numerous specific -
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- incidents occurred since November 1991 including
- (1) 100 mile-per-hour i
j winds in the access tunnel between Units 1 and 2 resulted in an employee !
j being blown into a radiation area;-(2) resin was spilled into the core; j (3) a " hot" valve was cut in two causing a radiation release and exposure to several individuals; (4) 26 documented " reportable incidents",
j numerous areas showing concern by Region IV, and at least 6 reactor i
i trips; (5) the NRC proposed fines for violations nearing _$100,000 for j 1992; (6) the spent fuel pool was without cooling water for approximately i
- 20 hours2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br /> causing an abnormal rise in temperature; (7) a photograph showing control room personnel asleep is widely circulated in the plant; I and (8) the licensee failed to label _ and mislabeled pressure valves and ;
I limit switches. -
l The Director of the Office of Nuclear Reactor Regulation has a
- decided to deny the Petition. The reasons for this denial are explained i
in the " Director's Decision Under 10 CFR 2.206," (D0-92-06) which is available for public inspection at the Comission's Public Document Room, j the Gelman Building, 2120 L Street, N.W ,- Washington, ~ D.C. 20555, and at i
the Local Public Document Room for the Comanche Peak Steam Electric 4
Station, at the University of Texas at Arlington Library, Government 4
- Publication / Haps, 701 South Cooper, P.O. Box 19497, Arlington, Texas -
i j- 76019. A copy of the decision will be filed with the Secretary for the j Commission's review in accordance with 10 CFR 2.206(c) of the Commission's regulations. As provided by this regulationi the Decision will constitute the final action of the Comission 25 days after the i
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3 date of issuance of the decision unless the Commission on its own motion institutes a review of the decision within that time.
Dated at Rockville, Maryland, this 19th day of November 1992. ;
i FOR THE NUCLEAR REGULATORY COMMISSION
" e' t : $
Thomas E. Murley, Director-Office of Nuclear Reactor Regulation i
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Attachment -
In re El Paso Electric Co., Adversary Proceeding No. 92-1285FM (W. D. Tex.)
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J IN THE UNITED STATES BANKRUPTCY COURT f FOR THE WESTERN DISTRICT OF TEXAS f
- AUSTIN DIVISION i
l
, )
- In re EL PASO ELECTRIC COMPANY, ) Case No. 92-10148-FM
- } (Chapter 11) l Debtor. )
i )
l ) Adversary Proceeding No.
- ~ EL PASO ELECTRIC COMPANY, )
)
l Plaintiff and Counterclaimant, ) 92-1285FM j
! ) l l v.- )
l )
. THE FIRST NATIONAL BANK OF BOSTON, )
DBP CORP., LaSALLE NATIONAL BANK, )
and HARRIS TRUST AND SAVINGS BANK, )
! }
l Defendants and Claimants. )
i )
i 1
l i MOTION OF THE UNITED STATES TO TNTERVENE j Pursuant Bankruptcy Rule 7024. and Rule 24 (a) (2) of the 1
i Federal Rules of. civil Procedure, the United States, on behalf of i
2 its Nuclear Regulatory Commission, requests that the court allow i
l it to intervene as a defendant in.this adversary proceeding. The j grounds for this motion are set forth in the accompanying l' memorandum, which is incorporated.herein by reference.
Respectfully submitted, STUART M. GERSON Assistant Attorney General RONALD F L EDERER United States Attorney ,
)
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J. CHRISTOPHER 6KOHN g TRACY J. WHITAKER ANDRLA J. LARRY KAREN A. HALL Attorneys Department of Justice Civil Division P.O. Box 875, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 307-0451 OF COUNSEL:
EDWIN J. REIS Deputy Assistant General Counsel Nuclear Regulatory Commission Rockville, Maryland 20852 (301) 504-1586
4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DIVISION OF TEXAS AUSTIN DIVISION
)
In re EL PASO ELECTRIC COMPANY, ) Case No. 92-10148-FM
) (Chapter 11)
Debtor. )
)
) Adversary Proceeding No.
EL PASO ELECTRIC COMPANY, )
)
Plaintiff and Counterclaimant, ) 92-1285FM
)
- v. )
)
THE FIRST NATIONAL BANK OF BOSTON, )
DBP CORP., LaSALLE NATIONAL BANK, )
and HARRIS TRUST AND SAVINGS BANK, )
)
Defendants and Claimants. ) g
- ) 1 MEMORANDUM OF THE UNITED STATES IN SUPPORT OF ITS MOTION TO INTERVENE STATEMENT A. Backerround and Procedural History The debtor, El Paso Electric Company ("EPEC") , is a public utility. It is principally engaged in the business of generating, transmitting and distributing electricity. In 1973, EPEC acquired an undivided 15.8% interest in a nuclear power plant know as the Palo Verde Nuclear Generating Station ("Palo Verde"). Palo Verde includes three nuclear generating units, known as Unit 1, Unit 2 and Unit 3, together with facilities used by all three units. EPEC is licensed to possess an interest in Palo Verda by tha Nuclear Regulatory Commission ("NRC").
In 1986, EPEC entered into a series of transactions whereby it sold its interest in Unit 2 and leased back that interest for a term of 27 years. In 1987, it sold and leased back 39.5% of its interest in Unit 3 for a term of 29 years. EPEC cold its interest in the plants to specially created Owner Trusts. The beneficiaries of the Owner Trusts are a group of financial institutions.1 First National Bank of Boston ("FNBB") is the trustee for all of the trusts. The NRC approved the sale and leaseback transactions subject to the restrictions contained in the Atomic Energy Act of 1954, P.L.89-703,. 68 Stat. 919 (1954),
codified A1, 42 U.S.C. SS 2011 at agg. (1988) ("the AEA").
The other Palo Verde participancs are municipalities and utility companies, including Arizona Public Service Company
("APSC"). All of the Palo Verde participants executed a participation agreemer.t pursuant to which APSC was appointed operating agent, all of the participants are responsible for I
paying the operation, maintenance, and decommissioning costs. In addition, they are required to sit on committees, including an administrative committee, an engineering and operating committae, and an auditing committee.
On January 8, 1992, the Debtor filed a petition for
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reorganization under chapter 11 of the Bankruptcy Code.
1 They include Alexander Hamilton Life Insurance Company of America, Chrysler Financial Corporation, Commercial Federal Investment Corporation, DBP Corp. (as successor in interest to Burham Leasing Corporation), Energy Investments Inc., Palatine Hills Leasing Inc., Security Pacific Capital Leasing Corporation, and Palo Verde Leasing Corperation.
)
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l Thereafter, on September 8, 1992, it filed its proposed disclosure statement and plan of reorganization. The centerpiece of the Debtor's plan is its purported rejection of the Palo Verde leases. The debtor contends that the leases are real estate leases which were rejected by operation of law in accordance with 5 365(d) (4) of the Bankruptcy Code. Alternatively, it claims the leases are deemed rejected under the terms of its plan.
On September 9, 1992, the debtor commenced this adversary proceeding against FNBB.2 The primary relief it seeks is a declaration that damages resalting from termination of the leases are limited to three years lease payments under S 502 (b) (6) of the Bankruptcy Code.
On August 31, and again on September 4, 1992, the United States advised the debtor taat its purported rejection of the Palo Verde leases may amour.t to an unapproved transfer to its lessor of its interest in and license for Palo Verde in violation of the AEA. The United States and the debtor engaged in discussions, but did not agree on how to remedy the violations.
While the debtor offered to continue paying operation and maintenance expenses, the NRC is concerned about its ability to enforce such an offer. It is also concerned about protecting its regulatory jurisdiction.
2The suit is also against DBP Corp. which filed a separate proof of claim. (FNBB filed a proof of claim on behalf of the other trust beneficiaries). It is also against LaSalle National Bank and Harris Trust and Savings Bank who are the indenture trustees with respect to bonds issued to finance the sale and leaseback transaction.
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, (l B. Statutory and Keoulatory Backcround Pursuant to the AEA, the NRC has broad, regulatory authority to control and supervise nuclear power facilities in the United States. It has exclusive authority, under 42 U.S.C. SS 2131 and 2234, over the licensing of nuclear power facilities. The AEA is designed to protect public health and safety and to promote the common defense and security. Eeg 42 U.S.C. SS 2011, 2012, and 2133; see also, 10 C.F.R. SS 50.40 and 50.54(cc), 52 Fed. Reg. 1292 (January 12, 1987).
Section 101 of the AEA, 42 U.S.C. S 2131, makes it unlawful for anyone to transfer any nuclear power facility without a license issued by the NRC. It provides:
It shall be unlawful . . . for any parson within the United States to transfer or receive in interstato commerce, manufacture, produce, transfer, acquire, possess, use, import, or export any utilization or production facility except under and in accordance with a license issued by the Commission . . . .
Section 184, 42 U.S.C. S 2234, makes it unlawful for a licensee to transfer or dispose of its license. It provides:
No license granted hereunder and no right to utilize er produce special nuclear material granted hereby shall be transferred, assigned or in any manner dispesed of, either voluntarily or involuntarily, directly, or indirectly, through transfer of control of any license to any person, unless the Commission shall, after securing full information, find that the transfer is in accordance with the provisions of this Act, and snall give its consent in writing.
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Furthermore, the rights of creditors of NRC licensees may be exercised only in compliance with, and subject to, the same requirements and restrictions as would apply to the licensee pursuant to the provision of the license. 42 U.S.C. S 2234; see also, 10 C.F.R. S 50.81(a)-(d).
ARGUMENT The NRC seeks to intervene as a defendant in this adversary proceeding to protect its regulatory role and responsibility to approve any transfers of nuclear power facilities and licenses.
It also seeks to protect the public health and safety and the Nation's defense and security. If intervention is permitted, the NRC intends to move the Court for an order referring the regulatory issues to the NRC.
I. THE NRC HAS A RIGHT TO INTERVENE The NRC, by and through the United States, can intervene, pursuant to Bankruptcy Rule 7024, whenever it meets the factors set forth in Rule 24(a)(2), Fed. R. Civ. P. The NRC must show that: (1) its application to intervene is timely; (2) it has an interest relating to the property or transaction which is the subject of the action; (3) without intervention, disposition of 4
the matter will ' impair or impede its ability to protect its interest; and (4) the parties to the adversary proceeding cannot adequately protect its interest. Sea Ceres Gulf v. CooDer, 957 F.2d 1199, 1202 (5th Cir. 1992); Gulf State Utilities Co. v s Alabama Power Co., 824 F.2d 1465, 1475-76 (5th Cir. 1987). If l
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the NRC establishes each of these factors, the Court must allow intervention.
A. The NRC's Motion ip_Tip3 h The NRC's motion is timely. Pursuant to Local Bankruptcy Rule 7016 (c) (1) , a motion to intervene must be filed within 30 days of the date of entry of the Order Relative to Pretrial. On September 23, 1992, the Court issued a Scheduling Order in lieu of an Order Relative to Pretrial. The United States filed its motion to intervene on October 19, 1992, within 30 days of the entry of the Scheduling Order.
Furthermore, intervention by the United States will not prejudice any of the parties. The Debtor will not be prejudiced because it is aware of the NRC's concerns and intention to intervene. Because the United States is seeking to intervene at an initial stage of the litigation, neither the Court's docket nor any of the other parties _will be prejudiced.
B. The NRC Has An Interest In The Adversary Proceedina The NRC has a strong interest in protecting its regulatory authority. Under the AEA, the NRC has the authority and responsibility to pass upon any proposed transfer of nuclear facilities or licenses for_ nuclear facilities. Egg 42 U.S.C. .
SS 2131 and 2234. Furthermore, in determining whether to approve a proposed transfer, the NRC uses its specialized knowledge and expertise to analyze the transaction and determine a potential transferee's fitness in a manner that is designed to produce uniform results. It analyzes the transferee's technical, l .
financial, character, and citizenship qualifications. See 42 U.S.C. 5 2232. A regulator is entitled to intervene as of right in a suit affecting its statutory power to protect its interest in administering the statutory scheme and to bring its specialized knowledge and expertise to bear to ensure nationwide uniformity. See Ceres Gulf v. Coooer, 957 F.2d at 1203-04; Gulf State Utiliti.s Co.
. v. Alabama Power CQ2, 824 F.2d at 1476; New Orleans Public Service v. United Gas Pioe Line, 690 F.2d 1203, 1208 (5th Cir. 1982) ('NOPSI I").3 The NRC also has an interest and a duty, under the AEA, to protect the public health and safety. The AEA is by definition a health and safety statute; it is contained in Title 42 of the United States Code which is entitled "Public Health and Welfare."
The United States Supreme Court has recognized that health and safety is an overriding interest in any bankruptcy proceeding.
Ege Midlantic National Bank v. New Jersev Dept. of Environmental Protection, 474 U.S. 494 (1986). In Midlantic, the Court held that a debtor could not abandon property, under 11 U.S.C.
S 554 (a), without formulating conditions that would adequately protect the public health and safety. The Court further emphasized that obligations under nonbankruptcy regulatory lav 3 In Few Orleans Public Service, Inc. v. United Gas Piceline Co., 732 F.2d 452 (5th Cir.) (en banc) ("NOPSI III"), cert, g_enied, 469 U.S. 1019 (1984), the court reversed NOPSI I's holding allowing the intervention of city officials because the l Court discovered that the officials' statutory authority to regulate had been transferred to another agency. Thus, NOPST III governs intervention by non-regulators and is inapposita here.
See gulf _ States Utilities Co. v. Alabama Power Co., 024 F.2d at 1476 n. 14. l
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Dr continue regardless of whether a petition in bankruptcy is filed.
465 U.S. at 513, 526-27.
! C. The NRC Will Be Harmed By Not Permittine Intervention
! If the NRC is not allowed to intervene,'the Court may not be l aware of its role and responsibility in the oversight and licensing of nuclear facilities.- The NRC's authority might be
- impaired, and its ability to achieve. uniformity and consistency 4
could be compromised. -1 l What is more, unauthorized persons, 1232,;the lessors, could i
! acquire an ownership interest in a nuclear power plant, and the f public health and safety could be jeopardized. Serious questiens exist regarding the fitness of the lessors, a group of financial institutions,.to own Palo Verde. While an ownership interest
- would not confer upon-them the right to operate the plant, it would confer upon them significant financial responsibilities and l_ the responsibility to sit on'various ccmmittees that could affect the plant's operation.
i
- D. The NRC's Interert Ts Not Adecuatelv Reoresented f In' determining the adequacy-'of representation, it-is l appropriate to examine whether the interest of;a,present party is such that it will undoubtedly make all of-the potential-l -
- intervenor's arguments; whether.any present party is-capable and L
j willing to make such arguments; and whether the potential .
intervenor-would offer any necessary elements that other parties
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i .would~ neglect. United = States v. State of Orecon, 839.F.2d 635, r . -
638 (9th Cir.-1988). ~
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- [. 4 The NRC has an unique interest in fulfilling its regulatory role and in protecting the public interest which the present parties may not be willing or capable to represent. The NRC can offer a view of the proposed lease rejection from a regulatory perspective. The present parties, as less9r and lessee, are seeking only a determination of their personal rights and obligations vis-a-vis one another. Eee New Orleans Public Service V, United Gas Pice Line, 690 F.2d at 1209 ("NOPI I") .
II. ALTERNATIVELY, THE COURT SHOULD EXERC13E ITS DISCRETION TO PERMIT THE NRC TO INTERi:lAtTE Alternatively, the Court should axercise its discretion to allow permissive intervention, pursuant to Rule 24 (b) , Fed. R.
Civ. P. Permissive intervention should be allowed whenever a potential intervenor's claim raises questions of fact and law that are common to the original action unless intervention will enduly delay or prejudice the adjudication of the rights of the original parties. See, Gulf States Utilities Co. v. Alabana Power Co., B24 F.2d at 1476; New Orleans Public Service v. United Gas Pine Line, 690 F.2d at 1209 (NOPST I).
The NRC's claim arises from the same set of facts that give rise to the main action, i.e., the debtor's purported rejection of the Palo Verde leases. It raises the same legal question, i.e., whether the rejection is leyally effective. Intervention will not unduly delay or prejudica the adjudication of the rights of the parties. The NRC's motion was timely filed. in addition, the NRC does not intend to delay the adversary proceeding by
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4 moving for a stay of the entire proceeding; it will move for an order referring only the regulatory issues to the NRC.
CONCLUSION For the reasons stated herein, the Court should grant the United States' motion to intervene.
Respectfully submitted, STUART M. GERSON Assistant Attorney General RONALD F. EDERER United States Attorney ti 'r ' 0 .1 YYL/
J. CHRISTOPHER)KDHN (J TRACY J. WHITAKER ANDREA J. LARRY KAREN A. HALL Attorneys l Department of Justice Civil Division P.O. Box 875, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 307-0451 OF COUNSEL:
EDWIN J. REIS Deputy Assistant General Counsel Nuclear Regulatory Commission Rockville, Maryland 20852 (301) 504-158e 9
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