ML20127G794

Opposition of TU Electric to Motion for Leave to File Out of Time & Request for Extension of Time to File Brief by SL Dow (Disposable Workers of Comanche Peak Steam Electric Station) & RM Dow.* W/Certificate of Svc

ML20127G794
Person / Time
Site:	Comanche Peak
Issue date:	01/12/1993
From:	Edgar G NEWMAN & HOLTZINGER, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	NRC COMMISSION (OCM)
References
CON-#193-13529 CPA, NUDOCS 9301220075
Download: ML20127G794 (9)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCMRD i

UMMC

'93 JAN 12 P12 :23 In the Mctter of  : Docket No. 50-4t.6-CPA Texas Utilities Electric  :

Company  :

(Construction Permit

Amendment)

(Comanche Peak Steam Electric  :

Station, Unit 2)  : January 12, 1993 OPPOSITION OF TU ELECTRIC TO MOTION FOR LEAVE TO FILE OUT OF TIME AND REQUEST FOR EXTENSION OF TIME TO FILE BRIEF BY SANDRA LONG DOW dba DISPOSABLE WORKERS pF COMA!1CHE PEAK STEAM ELECTRIC STATION AND R. MICKY DOW INTRODUCTION Texas Utilities Electric Company ("TU Electric") hereby opposes the present Motion For Leave To File Out Of Time And Request For Extension Of Time To File Brief (" Motion") in the above captioned proceeding for the reasons set forth below.

On July 28, 1992, Sandra Long Dow dba Disposable Workers of Comanche Peak Steam Electric Station, and R. Micky Dow

("the Dows") filed a petition to intervene and request for a hearing in this docket. On December 15, 1992, the Atomic Safety and Licensing Board ("ASLB") issued a Memorandum and Order

(" Order") denying the Dows' petition on the ground that the Dows failed to establish the requisite interest for standing under 10 C.F.R. 5 2.714 1/ The ASLB also terminated the Comanche 1/ Memorandum and Order, LBP-92-37, NRC (Decenber 35, 1992).

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9301220075 930112 /t PDR ADOCK 05000446 i

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Peak Steam Electric Station (CPSES) Unit 2 construction permit extension proceeding, and noted that pursuant to 10 C.F.R.

S 2.714a(b), P2titioners had ten days to appeal the Order to the Commission. Because the ASLB served its Order by mail, five days were added to this period, and Thursday, December 31, 1992, became the filing deadline for notices of appeal.

Instead of filing a notice of appeal with the Conmission, on Decerber 28, 1992, three days prior to the Cor' s iasion's deadline, the Dows filed a Petition For Review Of Administrative Order with the United States Court of Appeals for the District of Columbia circuit, requesting that the court review the ASLB December 15, 1992 Order.

C DISCUSSION The Commission should deny the Dows' Motion on the u

ground that the Dows' unsubstantiated allegations, used to justify their failure to file a timely notice of appeal with the -

Commission, lack credibility and are inconsistent with the facts.

The Daws' claims, even were they true, do not constitute good cause for their delay, for under well-established Commission practice, time limits regarding appeals are construed strictly cnd untimely appeals are not accepted absent " extraordinary and unanticipated circumstances." Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-684, 16 NRC 162, 165 n.3 (1982)

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-It is clearfthat the Dows' own negligence,Enot events '

beyond their control, caused them to forsake filing a timely-notice of appeal with the Commission, '

The Dows allege-that the " Order . . . did not-reach them until well after the ten day period for the filing of a Notice of Appeal had lapsed," and consequently, they were

" prevented , . . from receiving the order in time to file a -

notice of appeal with the Commission." (Motion at 1-2.) The Dows' unsubstantiated allegation is contrary to the actual' facts.

-According to the Dows, the ASLB Order was delayed in reaching them because of the U.S. Postal Service's lengthy mail _ forwarding procedures, necessitated by'the Dows' change in-residence from -

Fennsylvania to Austin,-Texas. (Motion at 1-2.) However,,the-ASLB order's Certificate of Service clearly indicates _that-the

- Order was served upon the Dows via first class mail., on December 16,,1992, at their present Austin,_ Texas address, not.

their former Pennsylvania address as they allege. Thus the Dows' clearly received the Board's Order long before the time for-Ifiling an appeal with the Commission' lapsed'. The Dows! Motion simply misrepresents the actual' facts in an effort to justify their late-filing.

The Dows' Motion demonstrates their~ pattern of 1

providing the NRC1with unsubstantiated assertions that are shown to be-inconsistent with the-facts, and lacking in all credibility Aszthe ASLB' recognized in their December 1510rder f

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4-in denying inter alia_, a Dow motion requesting an extension of time to file a contention:

The Dow motion . . . along with the attached unverified statement of Mr. Dow only confirms our October 19, 1992 finding that the original motion lacked credibility, was unsupported by probative evidence and f ailed to provide good cause for the requested extension. (Order at 48.)

Even if the Commission accepts the Dows' allegations regarding the cause of their failure to file a timely appeal, the Dows' Motion demonstrates only that they negligently failed to examine the Commission's regulations governing the calculation of time relating to filing deadlines. 10 C.F.R. S 2.710 provides that when a paper is served by mail, five days are added to the prescribed period available for responding. Thus the Dows' appeal was required to be filed on December 31, 1992. Because the Dows received the Order in time to file with the D.C. Circuit en Decenter 28, 1992, but believed this was "well after the ten day perfod for the filing of a Notice of Appeal had lapsed,' they negligently failed to take sufficient notice of 10 C.F.R. 5 2.710. Hence, the Dows' own pleading conclusively establishes that they received the Board's Order in sufficient time to file a timely appeal with the Commission, and failed to do so due to their own negligence. Because negligence unquestionably does not consti* ute gor ' cause for filing out of time, the Motion shculd be denied.

The Dows further assert that they filed the petition for review of the ASLB Order with the D.C. Circuit after assuming that "their only remaining course of action was to make direct approach to the U.S. Court of Appeals." (Motion at 2.) The Dows claim that their inexperience was responsible for this error.

However, the ASLB Order expressly stated that Petitioners had the right to appeal the Order to the Commission. (Order at 50-51, emphasis added.) 1/ Therefore, inexperience aside, the Dows merely had to follow the ASLB's instructions. The Dows' voluntary decision to forego an appeal with the Commission and petition the D.C Circuit before exhausting their administrative remedies is clearly not an " extraordinary and unanticipated circumstance," in light of the ASLB's instructions. For these reasons, the Dows' error is not a basis for the Commission to permit the Dows' late appeal of the ASLB Order.

Finally, the Dows' Motion, on its face, confirms the ASLE's conclusion that the Dows did not establish the requisite interest for standing under 10 C.F.R. S 2.714, and that their Petition to Intervene was correctly denied. In two recent pleadings, the Dows assert that their legal residence is Austin, Texas, wnich is located significantly further than 50 miles from CPSES Unit 2. First, the Dows filed a change of address notice with the IRC and the D.C. Circuit indicating their new domicile, le The ASLE also indicated that the time limit for filing a notice of appeal with the Commission was governed by 10 C.F.R. 5 2.714a(b). (Order at 51.)

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"Second, Mr. Dow recently filed a complaint in the United States District Court _for_the-Western District of Texas, Austin Division, in which he' avers, under oath,.that he resides-in-Austin, Texas. 1/ These two admissions demonstrate conclusively that the Commission should summarily affirm the.

ASLB's December 15, 1992 Order denying the Dows' Petition To.

Intervene and Request For Hearing.

CONCLUSION For the reasons set forth above, TU Electric respectfully requests the Commission to deny Petitioners Motion For Leave To File Out Of Time, and summarily affirm the ASLB's December 15, 1992 Memorandum and Order denying the Dows? Petition

.To Intervene and Request For Hearing.

Respectfully submitted,

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Ax f/

deof6T/J 'EYgaf

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Robert A. Wooldridge, Esq.

Worsham, Forsythe, Sampels & Tho., 6 s. Schm Wooldridge Steven P. Frantz 2001 Bryan Tower Paul J. Zaffuts Suite 3200- Newman & Holtzinger, P.C.

Dallas, TX 75201 Suite 1000 (214) 979-3000 1615 L Street, N.W.

Washington, D.C. 20036 (202) 955-6600 Attorneys for_TU Electric January 12, 1993 1/ See R. Mickv Dow v. Texas Utilities Electric Comoany, Civil Action No. A-92-CA-741-_JN,-p.-1, (January 6, 1993, W.D.

Texas), provided as Attachment A to this Opposition.

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IN THE UNITED STATES DISTRICT COURJg _ f 3 2* Igi33_

FOR THE WESTERN DISTRICT OF-TEXAS AUSTIN DIVISION li,S, c , y rice R. MICKY DOW, {} DEPU1Y Plaintiff, {}

vs. () No. A-92-CA-741-JN TEXAS UTILITIES ELECTRIC COMPANY, {} { )5 yp7 Defendant. () V' ,

PLAINTIFF'S PETITION _/OR TEMPORARY UJJUNCTION TO THE HONORABLE JUDGE OF THIS COURT: .

Now comes, R. Micky Dow, hera!nafter plaintiff, and complains of Texas Ut i l i t i es E l ect ric Company , and for cause of action shows:

14 Pl a i nt i f f i s a Nat ive-American Tribal Advocate,- who i s domi c-iled in the State of Texas, in the Western District of Texas, and resides at Number 368, P.O. Dox 19400, Austin, Texas 78760-9400.

Plaintiff has family members and friends who reside i n Hood.

County, Texas, the location of the landmark of Comanche Peak.

II.

Defendant is Texas Utilities Electric Company, a corporation incorporated under the l aws of the State of Texas, wi th its princi-pai of fices and place of business located at 2001 Bryan Tower, in the City of Dallas, Texas, in the Northern District of Texas.

Def endant owns and operates a subsidiary installation known as the Comanche Peak Steam Electric Stat ion, which is a nuclear-power-l ed elect ri ci ty generat ion stat ion, located in Glen Rose, Somervell County, Texas, and:the subject of this. petition.

PLAINTIFF'S PETITION FOR TEMPORARY INJUNCTION 4 s

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' UNITED STATES OF AM2RICA UbhI4C '

NUCLEAR REGULATORY-COMMISSION-93 JAN _12- R2 :23

.) . n c p EiLit1,P""]

In the Matter of ) Ncni m;t.NL" E A '"'

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

)

ICo.manche Peak Steam Electric ) (Construction Permit Station, Unit 2) ) Amendment)

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CERTIFICATE OF SERVICE I hereby certify that copies of opposition Of TU Electric To Motion For Leave To File Out Of Time And Request For Extension Of Time To File.Brief By Sandra Long- ,

Dow dba Disposable Workers Of Comanche Peak Steam Electric Station And R. Micky Dow were served upon the following persons by deposit in the United States Mail (except as indicated below), postage prepaid and properly addressed,- on the date shown below:

Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of the Secretary

• U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Chief, Dvcketing and Service Section.

(Original-Plus Two Copies)

Janice E. Moore Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Served By Hand 4

sj Marian L. Zobler Office of-the-General Counsel' U.S. Nuclear-Regulatory: Commission Washington, D.C. 20555

' Michael'H. Finkelstein Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 R. Micky Dow Sandra Long Dow Department 368 -

P.O. Box 19400 ,

Austin, Texas 78760-9400 Michael D. Kohn Stephen M. Kohn Kohn, Kohn and Colapinto, P.C.

517 Florida Ave., N.W. '

Washington, D.C. 20001 Dated this 12th day.of January, 1993.

@aul/I.(Eadfuts Newman.& Holt:inger, '

P.C.

Suite 1000-L 1615 L Street, N.W.

( 0 5 66 b '

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