ML20127D441

Memorandum & Order (Setting Pleading Schedule).* Pleadings Shall Be Filed According to Listed Schedule.Petitioner May File Amended Petition & Suppl to Petition by 921005. W/Certificate of Svc.Served Ob 920911.Reserved on 920914

ML20127D441
Person / Time
Site:	Comanche Peak
Issue date:	09/11/1992
From:	Carpenter J, Lam P, Margulies M Atomic Safety and Licensing Board Panel
To:	NRC OFFICE OF THE GENERAL COUNSEL (OGC), TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
References
CON-#392-13212 CPA, NUDOCS 9209150051
Download: ML20127D441 (8)

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\l%i'C UNITED STATES OF AMERICA 110 CLEAR REGULATORY COMMISSION 32 SP 11 P!2:19 ATOMIC SAFETY AND LICENSING BOARD

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Before Administrative Judges: -

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.Morton D. Margulies, Chairman

-Dr. James ~H. Carpenter SERVED SEP 1-1 1992 Dr. Peter S. Lam Docket No. 50-446-CPA

-In the Matter of ASLDP No. 92-668-01-CPA Texas. Utilities Electric Company (Construction Permit Amendment)

.(Comanche Peak Steam Electric Station, Unit 2) September 11, 1992 MEMORAllDUM AND ORDER (Settina Pleadina Schedule)

Before us are two petitions for leave to intervene and to hold-hearings in.the matter,of the request by Texas Utilition Electric Company (Texas Utilities) to amend i

Construction Permit CPPR-127 for the Comanche Peak Steam Electric Station-' Unit 2,

, by extending the construction completion date from August 1, 1992 to August'1,- 1995.

An " Environmental Assessment and Finding.of-No-Significant Impact," dated June 23, 1992, pertaining to the >-

requested-amendment Was published in the Federal Register on June 29, 1992.. 57 Fea. Reg. 28,885. Baced on the conclusion that the requested action is supported by good cause!and that it' involves.no significant hazards

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consideration, the Cominiscion on .Tuly 28, 1992 ordered that l

> the construction completion date be extended to August 1, j 1995. In accordance with Commission practics, any hearing in the matter will follow the granting of the request. If a hearing is held, a final docision on the extension must await the conclusion of the hearing. Lgng Islartd_Ligliting 9J2DPJLDY. (Shoreham !!uclear Power Station, Unit 1) , LBP-91-7, ,

33 NRC 179, 183 (1991).

By a " Petition To Interveno And Request For Hearing,"

dated July 27, 1992, petitioners B. Irene Orr, D. I. Orr, Joseph J. Machtal, Jr. , and S. M. A. Hacon seek leave to intervene in'the subject matter and request a hearing. .

Petitioners allege standing pursuant to 42 U.S.C. 2239 (a) (1) and 10 C.F.R. S 2.714(a) and ascert that good cause does not exist to allow the amendment of the conctruction completion date.

Also, by~a " Petition Of Sandra Long.Dow_dba Disposable ,

Work'ers-of Comanche Peak Steam Electric Station, and R.

Micky Dow,.For' Intervention _And Request For Hearings," dated

' July 28, 1992, Petitioners allege standing _-and good reason to. deny the amendment. They request leave to intervene and to hold'a hearing-on the request for an extension of rne

. construction completion date.

_In an_ answer, dated August 6,-1992, to the joint ,

petition-of the-Orrs, Macktal and Hason Texas Utilities.

equests that the petition should be summarily denied with E

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l respect to Macktal and liason because neither has demonstrated standing to intervene. It also calls for the denial of the request of all of the Petitioners for a hearing because they have not cpecifically identified aspects of the subject matter of the proceeding which they desire to litigate, as required by 10 C.F.R. S 2.714(a)(2),

and to the extent aspects are identified they are said to be outside the scope of the current proceeding.

In an answer dated August 14, 1992, tu the Dow petition, Texas Utilities requests that the petition should

.not be accepted for filing because it contains untrue and scandalous allegations. It further asserts that the

-petition should be denied sunimarily because the Petitioners have not demonstrated standing to intervene and because they have not'specifically identified aspects of the subject natter of the procooding which they desire to litigate.

NRC Staff (Staff) in its response to the first filed petition on August 11, 1992, and to the second on August 18,

.1992, arrived at similar conclusions as those of Texas Utilities.- It requested.that the petitions be denied.

It might appear that the issue of wnether or not_thore should be a hearing has been joined by the pleadings. This is not'the_ case. The Commission Rules of Practice permit the amending of thc' petitions to intervene without prior

. approval of the= Board at any time up to 15 days prior to the l

L 1 holding oftthe first prehearing conference. 10 C.F.R.

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S 2. 714 (a) (3 ) . Where as in this case Petitioners have not included contentions in their petitions to intervene, they are required,Eno later than 15 daya prior to the holding of

. the first prehearing conference, to file a supplement to the petitions which must' include a list of the contentions they seek to have litigated in the proceeding. The failure of a petitioner to file one admissible contention will result in the petitioner not being able to participate in the proceeding as a party. 10 c.F.R. S 2.714 (b) (1) .

The Board is authoriced in regulating the course of proceedings to alter timo limits. 10 C.F.R. SS 2.711, 2.718(o) and (m). Good cause dictates that the Board defer  ;

ruling on the petitions until the final round of pleadings has been filed.- By so doing the proceeding will be managed in a more. expeditious,-efficient and effective manner while preserving fairness. The difficulties encountered-with piecemeal filings and-roview will-be curtailed. 'To that end

'theiBoard will suspend those_ provisions of-_the rule that permit filings, without Board approval,-up to-15 days before

_the-prehearing conference. Instead it will order another-schedulo for fil'ingLamending and supplementing petitions.  ;

The;need for_a prehearing conference is normally dependent 3

on"the filingLby a petitioner with. standing _of atLleast one--

facially admissible contention.

In that Petitioners at least in-part rely _in their pleadings'on past relationships with Texas Utilities:in -

5-other proceedings, the Board believes that the following comments are in order:

It is incumbent on Potitioners to catirfy the very specific pleading requiroments of 10 C.F.R. S 2.714 to intervene successfully and gain party status.

Section 9. 714 (a) (2) requires that a } etition set forth with " particularity" the interest of the petitioner, how the interest may be affected by the resulte of the proceeding, including why petitioner should be permitted to intervene sith "particulard references to the factors in S 2.714 (d) (1) and the " specific" aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.

It clearly will not suffice to make cryptic references to records in other proceedings with an expectation that the Board.will-comb those records in an attempt to decipher what

-points the Petitionero are attempting to make, as the Dows have done.

It should be noted that .in amen: ling 3 0 C.F.R.

S 2.714 (b) (2) oon August! 11, 1989 the Commission tightened the requirements for. pleading admissible contentions. The Commission looks to petitioners specifically to fulfill the requirements of- 10 C. F.R. S 2.714 (b) (2)-(i) , (ii) and (iii).

In Arizona Public Service'Co. (Palo' Verde Nuclear Generating Station,l Units 1, 2, and -3)- CLI-91-12, 34 NRC 149, 155 (1991), the. Commission stated:

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6-While the Board may appropriately view Petitioners' support for its contention in a light that His favorable to the Petitioner, it cannot do so by ignering the requirements set forth in 10 C.F.R.

S 2714 (b) (2) (1) , (ii), and (iii) . These sections demand that all petitioners provido an explanation of the bases for the contention, a statement _of fact er erpert opinion upon which they intend to rely, and sufficient information to show a dispute with the applicant on a material issue of law or fact. If any one of these requirements is not met, a contention must

_be rejected. Rules of Practice for Domestic Licensing Proceedings -- Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989).

a Because the scope-of a construction permit extension proceeding laLlimited to direct challenges to the permit holder's asserted reasons that show good cause justification for the extension, only those contentions-that address that issue are admissible. Igxas Utilities Electric Comoany (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 932 (1987).

ORDER Based.upon all of the foregoing, et is hereby Ordered that:.

1. .Those provisions of 10_C.F.R. S S 2.714(a)(3) and 4 2.714(b) that permit the amending and supplementing of-

_ petitions for leave to intervene, without prior approval of the Board at any. time up to115 days prior to the holding of; the1first prehearing' conference, are suspended.

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2. Pleadings shall be filed in accordance with the following schedule:

Each petitioner may file no later than October 5, 1992

' Amended petition and a supplement to his or her petition t: . : contains contentions which Petitioner seeks to have

.itigated in a hearing.

Texas Utilities may fila enswers to amended petitions and supplements to petitions within ten days after service _

of the amended petitions and supplements.

Staff may file answers to amended petitions and supplements within 15 days following their service.

THE ATOMIC SAFETY AND LICENSING BOARD 11 w /)W '

Morton B. Margulies(,) Chairman CHIEF ADMINISTRATIVE LAW JUDGE

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Dr.f/ James H. 'Carpenpar ADYINISTRATIVE JUDGE

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Dr. Peter S. Lam ADMINISTRATIVE JUDGE Bethesda, Maryland September 11, 1992

e 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 cert'fy that copies of the foregoing LB M&O (SETT'G PLEADING SCHED) have been st. upon the following persons by U.S. mail, first class, except as otherwise ..etr , and in accordance with the requirenents of 10 CFR Sec. 2.712.

Office of Commission Appellate Administrative Judge Adjudication Norton B. Margulies, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555

-Administrative Judge Administrative Judge

. James H.-Carpenter Peter S. Lam Atomic Safety and Licensing Board Atorr.ic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, b. 20555 Washington, DC 20555 Marian L. M '.r, Esq. George L. Edgar, Esq.

Micnael 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 Michael D. Kohn, Esq.

Counsel for Petitioners Kohn, Kohn & Colapinto,- P. C.

517 Florida Avenue, N.W.

Washington, DC 20001 Dated at Rockville, Md. this 11 day of September 1992 Offite of the~ Secretary of the Commission

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