ML20150E183
| ML20150E183 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/12/1988 |
| From: | Newman J NEWMAN & HOLTZINGER, TEXAS UTILITIES CO., TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20150E143 | List: |
| References | |
| CPA, OL, NUDOCS 8807150024 | |
| Download: ML20150E183 (18) | |
Text
i TS JL 13 F 6 :3C UNITED STATES OF AMERICA ;-Ih ,
NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
- 1. .
In the Matter of : Docket Nos. 50-445-OL
- 50-446-OL TEXAS UTILITIES ELECTRIC CO., :
et al., : (Application for an
- Operating License)
(Comanche Peak Steam :
Electric Station, Units : Docket No. 50-445-CPA 1 and 2) :
- (Construction Permit
- Amendment)
Response of Applicants to Motions to Stay, to Intervene and for sua Soonte Relief Filed by Various Petitioners On July 1, 1988, the parties to these proceedings,
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after approximately nine years of litigation and extensive negotiations, filed with this Atomic Safety and Licensing Board (Board) a "Joint Stipulation and Joint Motion For Dismissal" (Joint Stipulation). The Joint Stipulation, inter glia, commit-ted Applicants to the continuation of the various corrective action programs which they have undertaken to ensure the safe operation of Comanche Peak Steam Electric Station (CPSES) and i
provides Citizens Association for Sound Energy (CASE) a mechanism for participating in the resolution of its technical concerns without resort to the adjudicatory process. In light of the ccmmitments made in tne Joint Stipulation, on July 5, 1988, this 8807150024 880712 PDR ADOCK 05000445 C PDR \
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Board issued a "Memorandum and Order (Terminating Proceedings Subject to Condition)" (Termination order). The Termination Order terminated the proceedings subject only to the completion of the act of admitting certain documents referenced in the Joint Stipulation into the record at a prehearing conference to be held _.
on July 13, 1988.
On July 7, 1988, an individual styled as "John Doe" (Petitioner) filed in these proceedings a "Notice of Intent to File a Motion Requesting Substitution of Parties or in the Alternative Notice of Intent to File a Motion For Intervention",
"Motion to. Proceed as John Doe" and a "Motion to Make Public all the Settlement Agreements Enactec by the Parties." 1/
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Subsequently, on July 9 and 11,-1988, Applicants were served with five additional motions to intervene by the following parties: (1) Citizens for Fair Utility Regulation ("CTUR"); (2)
"Individual Residents" claiming to live or work within 50 miles of Comanche Peak; (3) Comanche Peak Citizen's Audit; (4) Fort
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Worth Sierra Club; and (5) a "Second Group of Individual Residents." Since the papers filed by each of these groups 1/ By a letter and motion accompanying these documents, substantially similar papers filed by "John Doe" on July 6, 1988, were withdrawn. The papers filed on July 6 indicated that the attorneys representing "John Doe" were associated wit the Government Accountability Project (GAP). However, the July 7 filings indicate that these attorneys are no i I
. longer associated with GAP,'a fact that "John Doe" apparently believed is somehow relevant to his filings. GAP is not a party to these proceedings or to the Joint Stipulation filed by the parties.
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I (hereinafter referred to as "Petitioners") are substantially identical, Applicants have chosen to respond to them in this single pleading. 2/
As noted in its Motion to Intervene. CFUR was previously an intervenor in the operating license proceeding but --
voluntarily withdrew as a party more than six years ago on the ground that it did not ns.ve adequate resources to address the issues it had raised. CTUR's request to withdraw was granted by the Board on April 2, 1982. Order (Following Conference Call),
dated April 2, 1982, at 2. The remaining Petitioners have never previously attempted to participate in these proceedings.
On July 11, 1988, Applicants received a "Notice of Withdrawal Without Prejudice" filed by "John Doe" requesting the Board to "grant his withdrawal without prejudice."
Although styled as Motions to Intervene, 3/ in fact, the pleadings filed by the Petitioners fail to address any of the requirements of 10 C.F.R. $ 2.714 but simply advise the Board that they intend to file further motions to intervene and mo'gions for the substitution of parties within sixty days. Without specifying any actual safety concerns or alleging any harm to
, themselves that would occur if dismissal of these proceedings is l
l 2/ The filings of "John Doe" and each of the subsequent petitioners were all prepared by the same counsel.
3/
With the exception of the filing by Comanche Peak Citizens Audit, which is styled a "Motion for Stay and for Sua Sponte Relief." The text of this motion is, however, substantially identical to that of the other Petitioners.
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4-con.pleted, Petitioner s re iuest the Board to disrupt the settle-ment reached by the parties in accordance with NRC policy, grant Petitioners the extraordinary remedy of a stay and needlessly prolong these proceedings to the substantial detriment of the parties. 4/ -
Under these circumstances, Applicants submit that Petitioners' pleadings should be summarily rejected by the Board for a number of reasons. First, because Petitioners are not parties, they have no legal status in these proceedings and hence no right to request a stay or any other affirmative action by the Board. Star 10 C.F.R. $ 2.715. Second, because the Board has already decided to dismiss these proceedings, the relief sought by Petitioners cannot be granted. Third, because CFUR, which years ago chose to withdraw from further participation in the operating license proceeding, and the remaining Petitioners have not provided any legally cognizable justification for filing to intervene out of time, their petitions must therefore be rejected under 10 C.F.R. $ 2.714. Finally, to the extent that Petitioners seek to stay the Board from taking the remaining actions under
, the Termination Order, none of the showings necessary for the 4/ Petitioners also request public disclosure of agreements '
between the parties that are not now before the Board (and that are only effective upon dismissal of ther' pro-ceedings). For the reasons discussed in Sectis 3 A and C of
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this Response, Applicants assert that Petitioners have no right to make such a request, and that it therefore be denied. In any event, the parties will describe the provisions.of the settlement agreement at the July 13, 1988 1
hearing, and will make it public upon completion of the actions terminating this proceeding.
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L issuance of such a stay have been made. The summary rejection of Petitioners' pleadings and the dismissal of these proceedings will not foreclose Petitioners, if they choose, from availing themselves of the procedures established by the NRC Rules of Practice to raise any concerns they may identify. _-
i In summary, there is no legal or f act' 41 basis upon which the Board could grant Petitioners any relief whatsoever.
Their eleventh hour attempt to invoke-the authority of the Board is plainly improper, and the requested relief should be summarily denied.
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A. Petitioners, as Non-Parties, Have No Right to !
the Relief Thev Seek Petitioners are not now, nor have they established the l L
right to become, parties to these proceedings. Indeed, Petitioners have merely stated their intent to attempt to seek to
- become parties at some time in the future. Nonethsless, Petitioners hav'e through their patently deficient pleadings requested the Board to take various actions that would have
- substantial adverse impact upon the parties. As n.on-parties,
, Petitioners cannot through the expedient of their various irregular motions grant themselves. substantive participatory rights to the severe detriment of the existing parties. Under the Commission's regulations, the rights of non-parties like Petitioners are confined to limited appearances (at the discre-tion of the Board) and a non party "may not otherwise participate
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6-in the proceeding." 10 C.F.R. 2.715(a). Thus, Petitioners have
- no right to' seek a stay or any other affirmative relief from the Board. In short, there are no motions pending before the Board upon which any relief could be granted. Petitioners' motions should therefore be summarily rejected by the Board and these _
proceedings unconditionally dismissed.
B. These Proceedinos Have Alreadv Been Terminated Petitioners' pleadings ignore the fact that the Board has already decided to dismiss these proceedings, subject only to the admission into the record of certain documents referred to in the parties' Joint Stipulation. Termination Order at 2. Thus, the relief sought by Petitioners can no longer be granted.
Nothing stated in Petitioners' pleadings suggests any basis for reconsidering the Termination Order or otherwise holding in abeyance the unconditional dismissal of these proceedings.
- C. Petitioners Have Wholly Failed to Satisfy the Recuirements of 10 C.F.R. f 2.714fai Even if Petitioner's filings are generously construed to be Motions to Intervene, Petitioners have not and cannot make
, the requisite showing that they should be permitted to intervene out of time. Pursuant to 10 C.F.R. $ 2.714(a)(1) an untimely petition to intervene may be granted only upon a balancing of the following factors:
(i) Good cause, if any, for failure to file on time.
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(ii) The availabili.ty of other means whereby the petitioner's interest will be protected.
(iii).The extent to which the petitioner's participa-
, tion may' reasonably be-expected to assist in developing a sound record.
(iv)
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The extent to which the petitioner's ~-
interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
In moving to intervene out of time, the burden of persuasion on those factors is clearly upon the petitioners and the factors must be ad3ressed in the petitio~n itself. Boston Edison Comeany, (Pilgrim Nuclear Power Station) ALAB-816, 22 NRC 461, 466 (1985).
Although all of the factors must be considered, a failure to demonstrate good cause for failure to file on time requires a compelling showing on the remaining four factors.- Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, INRC 273 (1975); Philadelehia Electric Comoany (Limerick Generating Station, Unit 1) LBP-86-9, 23 NRC 273, 279 (1986).
In this case, Petitioners' patently deficient pleadings wholly fail to meet this burden. Indeed, their various pleadings demonstrate that they could never meet this burden. CTUR's only excuse for failing to intervene in a timely fashion is its alleged expectation that CASE would litigate Contention 5 before the Board. In fact, CASE has actively litigated Contention 5 for more than 6 years since CFUR's withdrawal. Recognizing that the
interests of itself and the public are best served by entering ;
into the Joint Stipulation filed by the parties, CASE has concluded that the wisest course is to settle these proceedings and pursue its technical concerns through the mechanisms provided in the Joint Stipulation. Now, after having left the burden and _ , ,
responsibility of participating in these proceedings solely to CASE, and having wholly failed to participate itself, CFUR seeks to reenter these proceedings after years of absence and after they have been terminated.
In any event, claiming to have relied on the actions of another party provides no excuse for late intervention. Such a cla!m has never been considered to constitute good cause for an untimely petition to intervene. In Gulf States Utilities Co.
(River Bend Station, Units 1 and 2) ALAB-444, 6 NRC 760, 796 (1977), for example, the Appeal Board specifically held that reliance on the representation of a withdrawn party does not constitute good cause under 10 C.F.R. $ 2.714(a)(1). 111 1112 Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3)
ALAB-440, 6 NRC 642, 645 (1977) Consolidated Edison Co. of New 1211 (Indian Point Station, Unit No. 2) LBP-82-1, 15 NRC 37, 39-40 (1982). 5/
5/ It is interesting to note that in its February 23, 1982 "Motion For Voluntary Withdrawal of Contentions Two, Three, Five and Seven by CFUR," in which CFUR withdrew the last of its contentions, no mention of any expectation that CASE would pursue these contentions for CFUR was made.
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The remaining Petitioners have not even attempted to provide an excuse for late intervention, although these proceedings have been ongoing for more than nine years. Such tactics are obviously abhorrent to the fair and orderly conduct of administrative proceedings. As the Court of Appeals for the _.
District of Columbia has stated in a case affirming a Commission order denying a late intervention petition:
(A) person should not be entitled to sit back and wait until all interested persons who do so act have been heard, and then complain that he has not been properly treated. To permit such a person to stand aside and speculate on the outcome . .. and then permit the whole matter to be reopened in his behalf, would create an impossible situation.
Easton Utilities Commission v. Atomic Enerov Commission, 424 T.2d 847, 851 (D.C. Cir. 1970), cuotino Red River Broadcastino Co. v.
ECC, 98 F.2d 282, 286-87, cert, denied, 305 U.S. 625, 59 S.Ct. 86 (1938). The court further stated:
We do not find in statute or case law any ground for accepting the premise that proceedings before administrative agencies ,'
are to be constituted as endurance contests modeled after relay races in which the baton of proceeding is passed on from one legally exhausted-contestant to a newly arriving legal stranger.
424 F.2d at 852. These principles are clearly applicable to all of the Petitioners' filings, which should accordingly be rejected.
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I As to the remaining four factors, Petitioners have failed to make any showing, much less a compelling showing, that they should be permitted to intervene. For examplec under the third factor, Petitioners were required to "set out with as much particularity as possible the precise issues (they plan) to _
cover, identify (their) prospective witnesses, and summarize their proposed testimony." Mississicol Power & Licht Co., 11 al2 (Grand Gulf Nuclear Station, Units 1 and 2) ALAB-704, 16 NRC 1725, 1730 (1982), agg also Lono Island Lichtino comoany (Shoreham Nuclear Power Plant Station, Unit 1) ALAB-743, le NRC 387. 399 (1983). In this case, however, Petitioners make no attempt te explain the matters they propose to raise, to identify the witnesses they might call or to summarize any evidence they might give. In light of the present status of these proceedings the only thing that is clear from Petitioners' vague and unorthodox pleadings is that their participation will unnecessarily broaden the issues and inevitably delay the proceedings. 6/
Under analogous circumstances the Appeal Board has held
. that a licensing board simply has no latitude to admit a new party to a proceeding . . . where (1) the extreme tardiness in seeking 6/ Petitioners' suggestion that they intend to file "formal" motions to intervene in the future provides absolutely no excuse for their failure to meet the requirements of 10 C.F.R. 5 2.714. As the Appeal Board in Boston Edison Conoany (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 468 (1985) has held, a person seeking to intervene is not entitled to a second chance to cure a patently deficient motion to intervene.
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_ 11 intervention is unjustified; (2) the certain or likely consequence would be prejudice to other parties as well as delay in the progress of the proceeding, particularly attributable to the broadening of issues; and (3) the substantiality of the contribution to the development of the record which might be made by that party is problematic.
South Carolina Electric and Gas Comoany, 11 111 (Virgil C. Summe ~
Nuclear Station, Unit 1) ALAB-643, 13 NRC 898, 900 (1981). This situation is exactly what is presented here. Petitioners have not and cannot justify their belated attempt to participate in these proceedings. Nor can there be any doubt that Petitioners' intervention would broaden the issues and delay these
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proceedings, and there is no indication that they could contribute to the development of a record. In short, Petitioners have not and cannot demonstrate any entitlement to participate as parties and their pleadings should be summarily rejected.
D. Petitioners Have Shown No Basis for Grant of A Stav Finally, Petitioners have not provided a sufficient basis for the extraordinary remedy of a stay of the dismissal of these proceedings. Petitioners seek such a stay without making any of the showings required before a stay can be issued. In considering a request for a stay, the Board must consider (1) whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) whether the party will be irreparably injured unless the stay is granted; (3) whether the granting of the stay would harm other parties; and
(4) where the public interest lies.
Vircinia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C.
Cir. 1958): Cuomo'. v U.S. Nuclear Reculatory Commission, 772 F.2d
. 972, 974 (D.C. Cir. 1985); Pacific Gas & Electric Comeany (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-85-14, 22 NRC 177, _
178-80-(1985); Texas Utilities Electric Comeanv, gi al2'(Comanche Peak Steam Electric Station, Unit 1), CLI-86-4, 23 NRC 113, 121-122 (1986).
Petitioners have not attempted to and cannot satisfy any of these criteria. As discussed in section C above, there is no likelihood that Petitioners can prevail in their attempts to-become a party to this proceeding, much less prevail on any (as yet unspecified) issues they might raise. Petitioners have not alleged any harm, irreparable or otherwise, that will result if dismissal of these proceedings is not stayed. Dismissal will not prevent them from filing proper papers with the NRC should they ever actually identify any safety concerns. Conversely, the issuance of a stay would disrupt the parties' settlement and require the parties unnecessarily to participate further in these proceedings and face the uncertainties associated with their continuance. Finally, NRC and public policy favors settlements such as that entered into by the parties in this case. 10 CFR S 2.759; Commission Policy Statement on Conduct of Proceedings, 46 Fed. Reg. 28533 (May 27, 1981). Because Petitioners have j 1
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failed to provide even a minimal basis upon whi'ch to justify a stay 'f these proceedings, their Motions to Intervene must be rejected.
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CONCLUSION WHEREFORE, for all the foregoing reasons, Applicants respectfully request that:
- 1. The papers filed by Petitioners be summarily rejected and denied;
- 2. Dismissal of these proceedings be completed as -
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contemplated in the Termination Order.
Respectfully submitted, TEXAS UTILITIES ELECTRIC COMPANY For the Owners of CPSES ik' ]4 W Jack R. Neyban
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. - eorge L. Edgar Newman & Holtzinger, P.C.
,, Suite 1000 1615 L Street, N.W.
Washington, D.C. 20036 (202) 955-6600 Attorneys For Texas Utilities Electric Company
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- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 6:%
before the
.E8 E 13 ATOMIC SAFETY AND LICENSING BOARD
?.G=
In the Matter of )
)
) Docket Nos. 50-445-OL TEXAS UTILITIES ELECTRIC ) 50-446-OL COMPANY et al. )
) -
~~
) (Application for an
) Operating License)
)
(Comanche Peak Steam Electric ) and Station, Units 1 and 2) )
) Docket No. 50-445-CPA
)
) (Construction Permit
) Amendment)
)
CERTIFICATE OF SERVICE I, George L. Edgar, hereby certify that the foregoing letter was served this 12th day of July, 1988, by mailing copies thereof (unless otherwise indicated), first class mail, postage prepaid to:
- Peter B. Bloch, Esquire
- Adjudicatory File Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Docket Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.. 20555 Washington, D.C. 20555
- Alan S. Rosenthal, Esq. Assistant Director for Chairman Inspection Programs Atomic Safety and Licensing Comanche Peak Project Division Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission P.O. Box 1029 Washington, D.C. 20555 Granbury, TX 76048
- Indicates delivery by hand or overnight courier.
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- Juanita Ellis Robert D. Martin President, CASE Regional Administrator, 1426 South Polk Street Region IV Dallas, TX 75224 U.S. Nuclear Regulatory Commission William R. Burchette, Esquire 611 Ryan Plaza Drive Heron, Burchette, Ruckert, Suite 1000 '
& Rothwell Arlington, Texas 76011-Suite 700 1025 Thomas Jefferson St., N.W. *Dr. Kenneth A. McCollom Washington, D.C. 20007 Administrative Judge 1107 West' Knapp ~
- William L. Clements Stillvater, Oklahoma 74075 -
Docketing & Service Branch U.S. Nuclear Regulatory Joseph Gallo, Esquire Commission Hopkins & Sutter Washington, D.C. 20555 Suite 1250 1050 Connecticut Ave., N.W.
- Billie Pirner-Garde Washington, D.C. 20036 Government Accountability Project *Janice E. Moore, Esquire Midwest Office office of the General Counsel 104 E. Wisconsin Avenue - B U.S. Nuclear Regulatory Appleton, J4I 54911-4897 Commission Washington, D.C. 20555 Susan M. Theisen, Esquire Assistant Attorney General
Environmental Protection Suite 600 Division Washington, D.C. 20005 P.O. Box 12548 Austin, Texas 78711-1548 Lanny A. Sinkin Christic Institute Robert A. Jablon, Esquire 1324 North Capitol Street Spiegel & McDiarmid Washington, D.C. 20002 1350 New York Avenue, N.W.
Washington, D.C. 20005-4798 Nancy Williams CYGNA Energy Services, Inc.
- Elizabeth B. Johnson 2121 N. California Blvd.
Oak Ridge National Laboratory Suite 390 P.O. Box X Building 3500 Walnut Creek, CA 94596 Oak Ridge, Tennessee 37830 David R. Pigott
- Dr. Walter H. Jordan Orrick, Herrington & Sutcliffe 881 West Outer Drive 600 Montgomery Street Oak Ridge, Tennessee 37830 San Francisco, CA 94111 A
( .
- Robert A. Wooldridge, Esquire Michae) Reznikoff Worsham, Forsythe, Sampels & 6000 Forest Hill Drive Wooldridge Fort Worth, Texas 76119 2001 Bryan Tower, Suite 3200 Dallas, Texas 75201 Priscilla Reznikoff 6000 Forest Hill Drive
- W. G. Counsil Fort Worth, Texas 76119 Executive Vice President 3
Texas Utilities Electric Company Citizens for Fair Utility Generating Division Regulation 400 N. Olive, L.B. 81 7600 Anglin Drive Dallas, Texas 75201 Fort Worth, Texas 79119 ~_.
Jim Bailey, Esquire Comanche Peak Citizens Texas Municipal Power Agency Audit P.O. Box 7000 P.O. Box 1894 Bryan, Texas 77805 Fort Worth, Texas 76101 Betty Brink James N. Mathis 7600 Anglin Drive 6139 Guilford Fort Worth, Texas 79119 Fort Worth, Texas 76119 Charles Br, ink Linds Crear 7600 Anglin Drive 3516 Cutter Fort Worth, Texas 79119 Fort Worth, Texas 76119 Suzanne Mabe Mary Ann Gray 2400 6th Avenue 4749 China Rose Fort Worth, Texas 76110 Fort Worth, Texas 76137 Father Carmen Mele, O.P. Jeff Gray Office of Parish Justice Ministries 4749 China Rose Diocese of Fort Worth Fort Worth, Texas 76137 800 W. Loop 820 S.
Fort Worth, Texas 76108 Terry Horton 2220 Hudson Ralph Watterson Fort Worth, Texas 76103 1707 6th Avenue Fort Worth, Texas 76110 Anna Johnson 451 Cooks Lane Kasey Rushing Fort Worth, Texas 76112 527 Tish Apt. 903 Shirley Johnson Arlington, Texas 76006 2340 Mistletoe Avenue Fort Worth, Texas 76110 Clifford Rushing 527 Tish Colleen Butterfield Apt. 903 1538 Counts Forrest Ct.
Arlington, Texas 76006 Grapevine, Texas 76051 5
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Fort Worth Sierra Club P.O. Box 1057 Fort Worth, Texas 76101 Louis Storace 2103 Stone Moss Lane Grapevine, Texas 76051 Lon Burnam 2103 6th Avenue Fort _ Worth, Texas 76101
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.Mavis Belisle ~-
2710 Woodmere Dallas, Texas 75233 Tommy Yarbough 3004 Purington Fort Worth, Texas 76103 Rebecca Yarbough 3004 Purington Fort Worth, Texas 76103 Franci~ne Pratt 10612 Tall Oak Drive Fort Worth, Texas 76108 Charles A. Siller 1700 Homdale #1507 Fort Worth, Texas 76112
- Michael D. Kohn, Esq.
Stephen M. Kohn, Esq.
David K. Colapinto, Esq.
Kohn and Associates 526 U Street, N.W.
Washington, D.C. 20001 00 George 1/. Edgar 0Rf C/
Dated: July 12, 1988 j//
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