ML20128D965
| ML20128D965 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 02/03/1993 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#193-13600 CLI-93-02, CLI-93-2, CPA, NUDOCS 9302100275 | |
| Download: ML20128D965 (7) | |
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NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
'93 FEB -3 P4 :27 Ivan Selin, Chairman Kenneth C. Rogers James R. Curtiss "b<
,*!tl.M'*"1 Forrest J. Remick E. Gail de Planque
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In the Matter of:
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TEXAS UTillTIES ELECTRIC Docket No. 50-446-CPA COMPANY, et al.
(Comanche Peak Steam Electric Station, Unit 2)
MEMORANDUM AND ORDER CLI-93-0_2 1.
Introduction.
This matter is before the Commission on a motion filed by B. Irene Orr and D.I. Orr (" petitioners")' seeking a stay of the issuance of the low power license by the NRC Staff for Comanche Peak Unit 2.
Petitioners seek a stay of the low power license pending, inbLt Alia, our resolution of their appeal from a decision issued by the Atomic Safety and Licensing Board (" Licensing Board")
denying their petition to intervene in the construction permit amendment
("CPA") proceeding involving this facility.. The Texas Utilities Electric Company ("TU Electric" or." licensee") has responded.in opposition.
For the reasons stated below, we deny the stay request.
'We presume that the request is filed on behalf of the Orrs because it-is filed by their counsel. Nowhere in the stay request are their names mentioned.
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II.
Backaround, i
Prior to filing this action, petitioners have made no attempt to 4
participate in the Nmanche Peak Unit 2 operating license (*OL*) proceeding, in which the low power license is to be issued.
Instead, their participation has been limited to participation in the CPA proceeding.
In the CPA proceeding, TU Electric seeks to amend the Unit 2 construction permit to extend the latest construction completion date to August 1, 1995. The NRC Staff issued an "Envinnmental Assessment and Finding of No Significant Impact" analyzing tht
. oposed extension on June 23, 1992. Egg 57 Fed. Reg. 28885(June 29,1992).
The Staff then issued an order extending the latest construction completion date, as requested, on July 28, 1992. 111 57 Fed.
)
Reg. 34323 (August 4, 1992).
In response to the Environmental Assessment, petitioners filed a -
petition to intervene and a request for a hearing.
Both the licensee and the NRC Staff opposed petitioners' request. After preliminary proceedings, the Licensing Board issued an order denying petitioners' request for intervention, based upon their failure to submit an admissible contention.
Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-27, 35 NRC (December 15, 1992), slip op, at 31-32.
Petitioners have perfected a timely appeal which is now pending before the Connission.
On Monday, February 1,1993, the NRC Staff provided notice to petitioners that the Staff intended to issue the low power license late on the afternoon of Tuesday, February 2,1993, approximately 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> later. While the Staff was actually preparing to sign the license,- petitioners filed a request for a stay of that-license by' facsimile transmission.
The licensee immediately filed a response in opposition to the stay request by facsimile 2
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transmission. Af ter reviewing both petitioners' request and the licensee's response, the NRC Staff issued the low-pnwer license.
111. Analysis.
Petitioners have attempted to file their request in the OL proceeding for Unit 2 as well as the CPA proceeding. However, petitioners are not parties to the OL proceeding.
Inasmuch as their request does not address the five factors for late-filed petitions to intervene found in 10 C.F.R.
52.714(a)(1)(1)-(v), this stay request cannot properly be considered in the operating license proceeding.
The provision for " stays" in the Commission's regulations, by its terms, applies only to "a decision or action of a presiding officer...."
10 C.F.R.
62.788.
In short, this provision provides only for stays of decisions or actions in the proceeding under review -- in this case, the CPA proceeding.
However, petitioners do not relate their request to any action in the CPA.
Therefore, the request for stay is beyond the scope of section 2.788 and is more properly a petition for imediata enforcement action under 10 C.F.R.
52.206. However, in view of the need for a prompt NRC decision to remove uncertainty regarding tha status of the low power license, we proceed below to consider the petition without referring it to the Staff for a decision, which is our normal practice.'
'Even assuming arauendo that section 2.788 did apply to this situation, we find that petitioners have failed to address -- much less satisfy -- that section's requirements.
Section 2.788 specifies that "an application for a stay... must contain... (a) concise statement of the grounds for stay, with reference to the factors specified in paragraph (e) of this section." 10 C.F.R. 52.788(b)(2).
Those factors, in turn, are: "(1) (w)hether the moving party has made a strong showing that it is likely to prevail on the merits; (2) (w)hether the party will be irreparably injured unless the stay is granted; (3) (w]hether the granting of a stay would harm other parties; and (4) where the public interest lies."
10 C.F.R. 52.788(e)(1)-(4).
Petitioners' " stay request" does not address those factors at all and, 3
1
4 The only allegation raised by petitioners is that TU Electric has
" secreted" information from the NRC, Motion at 2-3, and that this action may raise doubts about TV Electric's " character and competence" to operate (Comanche Peak) safely," Motion at 3.
As a result, pei,itioners now ask the Commission to direct TV Electric to turn that information over to them.
Motion at 4.
However, petitioners cite no evidence for their allegation other than a generalized-reference to the " entire record" before the Licensing-Board. Motion at 2 n.l.
Such a generalized reference provides no aid whatever in evaltating petitioners' motion and is simply insufficient for the purposes of issuing a stay of the low power license.
Petitioners do include as an exhibit a letter from the NRC Staff to TU Electric which directs TV Electric to take certain st*n regarding agreements between TU Electric and its former minority co-owners in which TV. Electric purchased the minority owners' shares in Comanche Peak.
San Letter from Thomas E. Murley, NRC, to-William J. Cahill, TU Electric (January 12,1993).
- However, there-is no showing that any actions that the NRC directed TU Electric to take in that letter will have any impact on low power operation.
As mandated in that letter, TV Electric's response will be in the Commission's hands -- and in the public domain -- within 30 days of the NRC's-letter. This therefore.-must be denied on its merits. M9reover, although' the petitioners were only informed of the Staff's specific schedule on February _1,.they were advised well over a week previously by Commission counsel of the likely near-term issuance of the low )ower license. Thus.any stay-request should have been filed much earlier t1an virtually the minute the license was actually due to issue.
Their unreasonable delay in seeking relief cuts-against granting it.
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i response will be filed before issuance of the full power license becomes an issue.3 In conclusion, we find that there is no reason to delay the effectiveness of the low power license and we deny the request before us.'
It is so ORDEREl:
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SAMUEL q CHILK Secretary of the Commission
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Dated at Rockville, Maryland this day of February, 1993.
3Moreover, as we have pointed out on other occasions, the risks of low power operation are minimal. Sgg, n, Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-89-8, 29 NRC 399 (1989);
Cuomo v. NRC, 772 F.2d 972 (D.C. Cir. 1985).
'We also deny petitioners' request for oral argument on this motion.
Motion at 4.
Petitioners have failed to demonstrate "how (oral argument) would assist us in reaching a decision." in.,re Joseph Jy Macktal, CLI-89-12, 30 NRC 19, 23 n.1 (1989); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CL1-92-12, 36 NRC (1992),slipop,at4-5.
' Commissioners Curtiss and de Planque are not available to participate in this matter.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION in the Matter of i
TEXAS UTILITIES ELECTRIC COMPANY Docket No.(s) 50-446 (Comanche Peak Steam Electric Station, Unit No. 2) r.ERTIFICATE OF SERVICE i
j 1 hereby certify that copies of the foregoing COMM MEMO & ORDER (CLl-93-2) 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 Fort Worth, TX 76140 t
Dated at Rockville, Md. this 3 day of February 1993 UTfice of the Secretary of the Commission a
i
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 COMM MEMO & ORDER (CLI-93-2)*
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 TU Electric U.S. Nuclear Regulatory Commission Newman & Moltzinger, P.C.
Washington, DC 20555 1615 L Street, N.W., Suite 1000 Washington, DC 20036
- Michael D. Kohn, Esq.
- Betty Brink
- Kohn, Kohn & Colapinto, P. C.
Board Member 517 Florida Avenue, N.W.
Citizens for Fair Utility Regulation Washington, DC 20001-7600 Anglin Drive Fort Worth, TX '76140 Dated at Rockville, Md. this:-
3 day of February 1993 UTfic~w of. the Secretary of the Commission
- FAXED 2
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