ML20128B872
| ML20128B872 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/27/1992 |
| From: | Marian Zobler NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#492-13422 CPA, NUDOCS 9212040121 | |
| Download: ML20128B872 (9) | |
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UNITED STATES OF AMERICA '
DanEiLe j
NC NUCLEAR REGULATORY COMMISSluN 1
BEFORE THE ATOJJIC SAFETY AND LICENSING BOARn 30 100:23 In the Matter of
)
Docket No. 54446-CPA
)
TEXAS UTILITIES ELECTRIC
)
Construction Permit Amendment COMPANY, et J
)
)
(Comanche Peak Steam Electric
)
Station, Unit 2)
)
NRC STAFF RESPONSE TO MOTION FOR REHEARING EY R. MICKy DOW. PETITIONER INTRODUCTION On Optember 11, 1992, the Atomic Safety and Licensing Board (Board) designated in this proceeding issued a " Memorandum and Order (Setting Pleading Schedule)" (Order), requiring that supplemental pleadir.gs setting forth contentions be filed no later than October 5,1992. On October 5,1992, Petitioners Sandra Long Dow dba Disposable Workers of Comanche Peak Steam Electric Station and R. Micky Dow did not file contentions, bl.t rather, filed a " Motion for Extension of Time to File Brief by Sandra Long Dow dba Disposable Workers of Comanche Peak. Steam Electric Station and R. Micky Dow" (Motion for Extension of Time). The Board, on October 19,1992, denied the Petitioners' Motion for Extension of Time. " Memorandum and Order (Ruling on Dow Motion for Extension of Time and Setting a Further Schedule)" (Order). On a
November 10,1992, Movant, R. Micky Dow, filed " Motion for Rehearing by R. Micky a
9212040121 92112'/
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Dow, Petitioner" (Motion)'. For the reasons set forth below, the Motion should be denied.
DISCUSSION A.
Movant's Motion Fa:ls to Demonstrate That the Board's Decieion Denyine The Motion for Extensior, of Time Was Erroneous The Com%sion's regulations do not contain a specific provision regarding motions for rehearing of an agency decision and only provide for reconsideration of 2
final decisions. See,10 C.F.R. $ 2.771.3 Commission case law has determined that a motion for reconsideration may be made only on the basis that the challenged decision was erroneous. See, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-88-3,28 NRC 1,2 (1988); Texas UtilitiesElec. Co. (Comancli: Peak Steam Electric Station, Units 1 and 2), LBP-8410,19 NPC 509,517-18 (1984). Such motions may be based on an " elaboration upon, or refinement of, arguments previously -
advanced." Central Electric Power Cooperative (Virgil C. Summer Nuclear Station, Unit No.1), CLI-81-26,14 NRC 787,790 (1981) A motion for reconsideration may not be either a mere repetition, without new information, of arguments previously made f
' Thejoint Petitioner, Sandra Long Dow db-Jisposable Workers of Comanche Peak' Steam Electric Station, has not requested ieconsidcratwa of the Board's ruling.
i Movan 's Motion is titled Motion for Rehearing, but in essence requests reconsideration -
2 of the Order.
$ Section 2.771 has been interpreted to also apply to initial decisions of Atomic Safety and Licensing Boards. See, Consumers Power Co. (Midland Plant, Un~its 1 and 2), ALAB-235, l
3 AEC 645,646 (1974).
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-, or an opportunity to present new arguments not previously presented. See, Shoreham, CLI-88-3, 28 NRC at 2; Swnmer, CL181 6,14 NRC at 790.
Applying the above standards to the instant Motion, Movant's McGon feils to demonstrate that the Board's October 19,1992 order was erroneous. The Board based its order denying Movant's Motion for Extension of Time '.a the fact that the McGon for an Extension of Time was based on a " narrative that lacks credibility." Order at 5.
Accordingly, the Board denied the Motion for Extension of Time for failure to demonstrate good cause. Id. at 4.
Movant, here, claims that the Board erred in determining that good cause was not shown in Movant's Motion for Extension of Time and t..at the Board's decision was arbitrary and could not " survive review." Mcnion at 2, 8-9. Movant's Motion, however, totally fails to demonstrate that the Board's decision was in any way erroneous or arbitrary and instead offers buh a new argu'nent not previously before the Board and reiterate: c:d arguments, without any further elaboration.
Accordingly, Movant's Motion should be denied.
'Io support his Motion Movant makes a new argument whi:h was not presented before the Board and u, in fact, in contradiction to state.nents made ir, his Motion for Extension of Time. Movant, in the instant Motion, claims that he was unaware of the Boani's September 11,1992 order which set the pleading schedule.
la'. at 2-3. Thus, l
according to Movant, he had good cause for an extension of time. Id. In the Motion for i
Extension of Time, however, Movant did not claim that he did not know of the Board's e
ruling and, in fact, claimed to have had all the documents necessary for filing when he 4*F tr a
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was arrested on September 3,1992. Motion fer Extension of Time at 2,3. This new argument cannot be a basis for the granting of a motion for reconsideration.
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Mc. ant also reiterates the same argument, without further elaboration, ' hat he made in the Motion for Extension of Time, claiming again that he was separated from.
his evidentiary material and was unable to contact anycne. Motion at 6. This argument was presented to the Board in the Motion for Extension of Time and was fully considered by the Board. Sec, Motion for Extension of Time at 2,3. The Board determined that Movant's claim was not credible. Order at 5. Movant fails to elaborate on this argument and fails to provide the Board with any new information which would cause it to reconsider its decision.
Furthermore, nothing in Movant's Motion demonstrates that the Board was erroneous or arbitrary in reaching its decision denying the extension of time. To suprrt his Motior., Movant attached " Statement of Richard E. Dow, Jr. aka R. Micky Dow" (Str'ement).
Movant's self-serving unsworn statement relating the ' circumstances l_
surrounding his arrest offers no further support of Movant's incredible statements made i
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in the Motion for Extensioa of Time and, in fact, further calls into doubt his credibility.
i For example, Movant states in the Motion for Extension of Time that all of nis material l
relating to this proceeding was stolen. Motion for Extension of Time at 2,3. Yet, in his Statement, Movant admits that he released his vehicle and its contents to a passenger in his vehicle at the time of Movant's arrest. - Statement at 5. Also, Movant claimed, as a basis for granting his Motion fcr Extension cf Time, that he was prevented from contacting anyone while in jail.. Motion for Extension of Time at 2, 3. Contrary to this L.
5 assertion, however, in his Statement, Movant states that an attorney by the name of Henry N. Mulvihill contacted him three times while he was in prison.' Statement at 6-7.
Movant has failed to demonstrate how the Boa-d's determination tMt his narrative lacked credibility was erroneous or arbitrary.
Movant claims that the Board should have issued a "show cause" order ifit found y
that Movant's Motion for Extension of Time was lacking in credih".ty and let the " parties submit their supportive materials." Motion at 3,9. Mova'.. urther argues that neither the NRC nor the Licensee have introduced one fact that would refute Movant's allegations. Id. at 8. It is clear from Move t's sugge'. ion that the Board should have issued a show cause order that Movant does not ui.dertta,d his barden of proof in a motion for an extension of time. Movant bears the burden of demonstrating good cause.
10 C.F.R. 6 2.711. Accordingly, it was well within the Board's discretion to determine that Movart had failed in his burden of proof without refutation of Movant's assertions of good cause by either the Licensee or the Staff. If Movant had supporting material, he should have, as is required by the regulations, submitted it with his Motion for e-Extension of Time.
See 10 C.F.R. 6 2.730(b).
Movant failed to provide any documentation supporting his Motion for Extension of Time, and accordingly it was well -
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- Movant also claims that he filed his Motion for an Extension of Time as soon ds possible.
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Motion at 3,7. However, Movant fails h explain why thejoint Petitioner, Sandra Long Dow dba Disposable Workers of Comanche Peak Steam Electric Station; did not at file a request for extension of time as soon as she found out that Mr. Dow had been irrested.
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within the Board's discretion to deny that motion.5 In the instant motion, he has presented nothing which would warrant a differenet outcome.
B.
Movant's Motion is Unremonably la The Commission's regulations do not specify when a motion for reconsideration
.nust be filed with respect to rulings other than final decisions. Sec,10 C.F.P Q 2.771.
Since mo'. ions for n asideration are, in effect, asking an Atomic Safe y and Licensing
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Board (ASLB) to revisit an issue which has already been decidei, thus, delaying tne t
proceeding, such motions should not be entertained if filed an unreasonably long time after the challenged ruling is issued. To allow such motions at any point in a proceeding could unduly hinder the work of an ASLB. Sce, C veland Elec. Illumincring Co. (Perry Neclear Power Plant, Units 1 & 2), LBP-82-110,16 NRC 1895,1896 (1982). "[T]be opportunity to file motions for reconsideration (should not] became a game in which the resources of the Commission and the parties are wasted in endless reiteration of the same arguments. At some point the adjudichory process must come to an end." Shorcham, CL1-88-3,28 NRC at 4.
Here. Movant is requesting that the Board revisit its previous decision. The Staff submits that Mov nt's Motion, filed 22 ays after the Board's ruling on his Motion for Extension of Time rather than shortly after that ruling, is unreasonably late and should 5
Movant also asserts that no prejudice to any of the parties or petitioners would have resulted from the granting of the exten. ion of time. Motion at 5,8. Movant's claim, even if s
true, is irrelevant to either the Motion for Extension of Time or the instant Motion. The only basis for the granting of an extension of time is whether the movant has demenstrated that goed cause exists for requesting the extension. See,10 C.F.R. $ 2.711. The only basis for granting a motion for reconsideration, as previously discussed, is whether the Board's decision was erroneous.
be denied as untimely. See, Perry, LBP-82-110,16 NRC at 1896 (1982)(applying the ten-day time limit of 6 2.77!, the Licensing &ard denied a motion for reconside>ation of a decision regarding the admissibility cf contentions as untimely).
CONCLUSION For the reasons set forth above, Movant's Motion for Rehearing should be denied.
Respectfully submitted, y
Marian L.
Ier Counsel for NR Staff Dated at Rockville, Marylan(
this 27:h day of November,1992 F
d
UNITED STATES OF AMERICA SO' NUCLEAR REGULATORY COMMISSION 11EEQPAlliB_ ATOMIC SAFETY AND LICENSikS IlONRO 'D j'
in the Matter of
)
Docket No. 50-446-CPA
)
TEXAS UTILITIES ELECTRIC
)
Construction Permit Amenument COMPAr,Y, et al.
)
)
(Comanche Peak Steam Electric
)
Station, Unit 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MOTION FOP A
REHEARING BY R. MICKY DOW, PETITIONER" in the above-captioned proceeding have beer, served on the followinF y deposit in the Unite <1 States mail, first class, or as b
1 indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 2hh day of November 1992:
Morton B. Margelies, Chairman
- Peter S. Lam
- Administrative Law Ju '.ge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Reguisery Commission Washington, D.C. 20555 Washingtca, D.C. 20555 James H. Carpenter
- George L. Edgar Administrative Judge Steven P. Frantz Atomic Safety and Licensing Board Naray L. Ranek U.S. Nuclear Regulatory Commission Newa.an & Holtzinger, P.C.
Washington, D.C. 20555 Suite 1000 1615 L Stree', N.W.
R. Micky Dow Washi:va, D.C. 20036 Sandra Long Dow dba Disposable Workers of Comanche Peak Steam Michael D. Kohn Electric Station Stephen M. Kohn 322 Mall Blvd. #147 Kohn, Kohn and Colapinto, P.C.
Monroeville, PA 15146 517 Florida Ave., N.W.
Washington, D.C. 20001
2 Adjudicatory File (2)*
Atomic Safet) <,d Licensing Board U.S. Nuclear Regulatory Commission Panel (1)*
Washiregton, D.C. 20555 U.S. Nuclear Regulatory Commission Attn: Docketing anc' Senice Section Washington, D.C. 20555 Office of the Secretary (2)*
Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication (1)*
Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Attn: Docketing and Service Section Washington, D.C. 20555 Ausq m
Marian L. Zobler Counsel for NRC.
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