ML20128D632

Memorandum & Order.* Denies Citizens for Fair Util Regulation for Fr Notice Hearing on Proposed Issuance of OL for Facility.W/Certificate of Svc.Served on 930129

ML20128D632
Person / Time
Site:	Comanche Peak
Issue date:	01/29/1993
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Curtiss J, Selin I, The Chairman NRC COMMISSION (OCM)
References
CON-#193-13588 CLI-93-01, CLI-93-1, NUDOCS 9302100191
Download: ML20128D632 (5)

Text

'

/3SPN

.:u.L i t t-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'93 JM 29 P12:19 COMMISSIONERS:

Ivan Selin, Chairman Kenneth C. Rogers J -:

James R. Curtiss Forrest J. Remick E. Gail de Planque

) 3EfiVcD JAN $9 E In the Matter of: )

}

TEXAS UTILITIES ELECTRIC )

COMPANY, et al . ) Docket No. 50-446

)

(Comanche Peak Steam Electric

)

Station, Unit 2) )

)

MEMORANDUM AND ORDER CLI-93 _01

1. Introduction.

This matter.is before the Commission on-.a request by the Citizens.for Fair Utility Regulation ("CFUR" or " petitioner") asking that the Commission issue a Federal Register' Notice offering a hearing on the proposed issuance of- ,

an operating license .for Unit 2 of the Comanche Peak. Steam-Electric Station

(" Comanche Peak").- The licensee, Texas Utilities Electric Company ("TU Electric" or " licensee") and the NRC Staff have responded in opposition:to the request. After due. consideration,. we deny-CFUR's _ request for the reasons stated - bel ow.--

II. Backaround.

On February 5, 1979, the NRC published a Federal Register notice announcing.TU Electric's request for an operating license for both Unit I and

' i Unit 2 of Comanche Peak. -S.g.g 44 Fed. Reg. 6995-(Feb. 5, 1979).

CFUR filed a:

timely petition'to intervene and a request for a hearing on the requested ..

9302100191 930129-PDR.

0 ADOCK 05000446 - hS?

PDR

~

t i'

! licenses. On June 27, 1979, the Licensing Board issued an order granting e

l CFUR's petition to intervene in the proceeding. Sag Texas Utilities-i

.qeneratina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP !

18, 9 NRC 728 (1979). The order also granted two other petitions to intervene l

from two other organizations and granted a request from the State of Texas to i participate as an " interested state." Subsequently, the Licensing Board l issued an unpublished order on April 2,1982, granting CFUR's request to.

withdraw from the proceeding. A second intervenor had already withdrawn in i 1981.

The proceeding continued with the Citizens Association for Sound Energy 4

(" CASE") as the sole intervenor until the parties reached a settlement __

agreement dismissing the proceeding. Sig Texas Utilities Electric Co.

(Comanche Peak Steau Electric Station, Units 1 and.2), LBP-88-18A, 28 NRC 101

(1988); Texas Utilities Electric Co; (Comanche Peak Steam Electris Station, i

i Units 1 and 2), LBP-88-18B, 28 NRC 103 (1988). . At that time, CFUR attempted

l. to re-intervene in'the proceeding; however, the Commission-found that CFUR had

failed to demonstrate that its petition met the criteria for late intervention in 10 C.F.R. 52.714(a)(1)(1)-(v).- Sig Texas- Utilities Electric Co. (Comanche

! Peak Steam Electric Station, Units 1- and 2), CLI-88-12, 28 NRC 605, 609

(1988), as modified,-Texas Utilities Electric Co. (Comanche Peak Steam j Electric Station, Units 1 and 2), CLI-89-06, 29 NRC 348 (1989). CFUR filed a

_ petition for review of that denial but the Commission's decision was _ upheld.-

Citizens for Fair Utility Reoulation v. NRC, 898 F.2d 51 (5th Cir.), .c_gtt..

~ denied, 111 S.Ct. 246 (1990).

The NRC Staff ~ issued a full power operating license to TU Electric _for Comanche' Peak Unit 1 on April 17,_1990. The NRC Staff has now completed its-2

. - . - . . - . . - . . . - - - .-_.- - - .= . - . _ . - . . . - _- _. .

I preliminary reviews and is currently preparing to issue a low-power license a for Comanche Peak Unit 2.

III. Analysis.

Issuance of-the full power license for Unit 1 closed out the opportunity for a hearing on the Unit 1 operating license under_ the 1979 Federal Register notice; however, until the full' power license for Unit 2 has actually been issued, the possibility of a reopened hearing is not entirely foreclosed._ For example, a person may request a hearing concerning the Unit 2 operating.

license under the 1979-Federal Register notice if the requestor can satisfy the late intervention and reopening criteria. Sgg Texas Utilities Electric A (Comanche Peak Steam Electric Station, Units 1 'and 2), CLI-92-01, 35 NRC 1, 6 n.5 (1992) ("CLI-92-01).

In essence, CFUR's request constitutes a petition for late. intervention and to reopen the. record. _However, CFUR_ has failed to address the standards governing such requests set out in 10 C.F.R. Part:2. _ Therefore, it appears that CFUR is_ asking the Commission to reopen the_ hearing on the Comanche peak Unit ~2 operating license as a matter of discretion without applying the Commission's late intervention _ and reopening standards. Yet CFUR offers no explanation why the Commission should ignore the standards. in 10 C F.R. Part 2-for late intervention and reopening such as CFUR proposes. CFUR_does assert:

that new issues have arisen since the initial-hearings and_that hearings on these matters could-be beneficial. Whether the-issues are in fact new and

~

whether.the hearings could be beneficial in resolving them must' be weighed against the tardiness with which the petition has been; presented to the Commission,- the contribution the petitioners could make in resolving those

~3-

l-l s l issues,.and the resulting delay in the proceeding. This is the very purpose

+

l for which the late intervention and reopening standards were created. We .;

_ decline to ignore these standards and,-therefore, we deny CFUR's request. By this decision, we do not preclude CFUR from filing a renewed request for a i hearing that addresses the relevant regulatory ~ standards.'

i Far the above reasons, we deny CFUR's. request for a discretionary offer i of reopened hearings on the Comanche Peak Unit 2 operating license.2 l

l It is so ORDERED.

[ p aact;og For the Co ssion,

., n. .

l v, _b .{ - .

$'.. d

?-

Q O ./ '*"..t f . j u SAMUEL J} CHILK

'N Secretav of tt Commission Dated at Rockville, Maryland

,  ?-

i this N day of January, 1993.

t l

l-4 _ 'As we noted in CLI-92-01, one must first _become a party to a proceeding _

i before seeking to reopen that proceedings See cenerally CLI-92-01. : Because CFUR :

had voluntarily withdrawn from the. original Comanche Peak proceedings before the settlement agreement was concluded,- CFUR _does not:now have the right to seek- to reopen the record.of the proceeding without first seeking late . intervention .in-the L proceeding. In addition, as _ we also pointed out in CLI-92-01, . late -

intervention and reopening 'is now 'available only with _ regard to.- the Unit 2 proceedings. CLI-92-01, 35 NRC at 6, n.5.

2

. We.have reviewed the technical allegations raised:in the CFUR Request and the responses to those allegations by both the Licensee and the Staff. -In light of the affidavits attached to the Staff's Response, weL find no public health and safety reason to prevent issuance of the low power license for Unit 2~ at this time.

4

. ,. - - . ~ . - - ~ ~ . . , , , - , , , , , . . , , , . , < , , , , , . . . . , , - -

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of TEXAS UTILITIES ELECTRIC COMPANY Docket No.(s) 50-446 (Comanche Peak Steam Electric Station, Unit No. 2)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing CLI-93-01 DATED 1/29/93 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.

Marian L. Zobler, Esquire

• George L. Edgar, Esquire Office of the General Counsel Counsel for TV Electric U.S. Nuclear Regulatory Commission Newman & Holtzinger, P.C.

Washington, DC 20555 1615 L Street, N.W., Suite 1000 Washington, DC 20036 Betty Brink Board Member Citizens for Fair Utility Regulation 7600 Anglin Drive Foit Worth, TX 76140 Dated at Rockville, Md. this / -

29 day of January 1993

(

Office of the p retary of the Commission

• Additional copy f axed.

t . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _