ML20214C663
| ML20214C663 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/04/1986 |
| From: | Gad R ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | CONSOLIDATED INTERVENORS |
| References | |
| CON-#486-1567 CLI-86-15, CPA, NUDOCS 8611210188 | |
| Download: ML20214C663 (8) | |
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DOCKETED U$tiPC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the jFF ~
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n s c; ATOMIC SAFETY AND LICENSING APPEAL BOARD"
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In the Matter of
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TEXAS UTILITIES ELECTRIC
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Docket No. 50-445-CPA COMPANY, et al.
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(Oomanche Peak Steam
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Electric Station, Unit 1)
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PERMITTEES' RESPONSE TO " CONSOLIDATED l
INTERVENORS' MOTION TO DISMISS PENDING APPEAL AS MOOT AND/OR FOR LACK OF JURISDICTION AND TO IMMEDIATELY DISSOLVE ORDER STAYING DISCOVERY" The Permittees hereby answer the " Consolidated Intervenors' Motion to Dismiss Pending Appeal as Moot and/or for Lack of Jurisdiction and to Immediately Dissolve Order Staying Discovery" (the Motion) and say that for the reasons set forth below, the Motion should be denied.
It is the Permittees' position that the recent action by the Licensing Board entertaining and allowing a motion to admit an amended contention was competent, if at all,1 only 1
See "Permittees' Response to Consolidated Intervenors' Motion to Admit Amended Contentions or, in the 8611210188 861104 PDR ADOCK 05000445 O
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i because the Licensing Board was acting under the equivalent of a partial remand from this Appeal Board, with jurisdiction retained by the Appeal Board to consider the matters before it further given whatever action might be taken by the Licensing Board together with the action taken by the Commission in Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), CLI-86-15, NRC l
(Sept. 19, 1986).a To suggest, therefore, that the Licensing Board's recent action has the effect of robbing 4
this Appeal Board of jurisdiction ipso facto is, therefore, i
erroneous.
j Similarly, the alternative arguments of the Consolidated Intervenors to the effect that the Commission's action in 4
CLI-86-15 was effective, ex proprio vigore and without further-action from this Appeal Board, both to dismiss the appeal pending before this Appeal Board and to vacate the l
interim orders heretofore entered by this Board is a tour _ e d
force.
What came before the Commission was a certified Alternative, for Reconsideration of Certain Previously Denied Contentions" (filed 10/10/86) at 20-23.
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See Appeal Board Memorandum and Order (unpublished)
October 9, 1986, at 2:
[T]he appropriate course is to withhold further consideration of the pending appeal of the applicants and the NRC Staff from the Licensing
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Board's May 2, 1986 order to await the [ Licensing]
Board's action on the motion now before it."
(Emphasis added.)
8 Motion at 2 n.2.
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question from this Appeal Board;' the answer to the question by the Commission neither is effective nor even purports to 5
dismiss the appeal out of which it arose.
Rather, all that CLI-86-15 did was to answer the question certified to the Commission and send the matter back to this Appeal Board for further action by this Appeal Board.s In fact, the present posture of the matter is this:
After hearing oral argument, this Board certified a question to the Commission, intending (once the Commission's answer was received) to consider further the matters before it and ultimately to decide upon a disposition of the appeal.7 In Memorandum and Order of July 3, 1986 at 10 ("[A]n authoritative Commission declaration might permit our resolution of the pending appeals without having to reach any other issues.
We are, of course, fully prepared to address those questions if it turns out that the disposition of the appeals so requires.") (Emphasis added.)
s CLI-86-15 at 9:
"The Appeal Board should determine the admissibility of the consolidated intervenors' contention in accord with this guidance."
(Emphasis added.)
8 Id.
7 See this Appeal Board's Order of September 22, 1986, calling for comments from the parties on the further action that should be taken on the appeal as a result of the Commission's response to the certified question.
It is perhaps worth noting that, on October 7,
- 1986, Consolidated Intervenors responded to that Order without anywhere suggesting that CLI-86-15 had been effective to dismiss the appeal and vacate the stay by itself and absent further order of this Appeal Board.
See Consolidated Intervenors' Comments on CLI-86-85 filed 10/7/86.
This was some 19 days after, per Consolidated
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the meantime, by leave granted by this Board in the nature of a partial remand with jurisdiction retained, the Licensing Board has admitted an " amended" contention.
This action has already been appealed by Permittees to this Appeal Board.
While we have all learned for the first time that, given the most recent Licensing Board action, the Consolidated Intervenors no longer press the contention originally admitted by the Licensing Board,' the appeal pending before this Appeal Board could become moot if, and only if, both (i) the Appeal Board determines that its jurisdiction over the matter does not extend to the Appeal Board-invited response of the Licensing Board to the Consolidated Intervenors' filing of new contentions and (ii) a timely appeal from that most recent Licensing Board action was not taken by the Permittees.
But such an appeal has been taken.
Given this posture, alteration, amendment or vacation of the prior orders of this Board staying discovery before the Licensing Board is appropriate if, and only if, this Board were to conclude that there has been a sufficient change in the circumstances that this Appeal Board previously Intervenors' most recent filing, the stay had supposedly automatically been vacated.
Motion at 2 n.2.
8 Motion at 1:
"The simple fact is that the portion of the original contention which was the subject of the appeal is no longer a contention in this proceeding.
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concluded warranted its entry.
Consolidated Intervenors have not argued any such changed circumstances, and it is reasonably plain on the face of things that none exist.'
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For the foregoing reasons, therefore, the Motion should l
be denied and its included suggestion of prior vaporization of the existing stay, while requiring no response, is I
erroneous.
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Respectfully submitted, Nicholas S. Reynolds William A. Horin BISHOP, LIBERMAN, COOK PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Suite 700 Washington, DC 20036 f
(202) 857-9800
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Robert A. Wooldridge WORSHAM, FORSYTHE, SAMPELS &
WOOLDRIDGE 2001 Bryan Tower, Suite 2500 Dallas, TX 75201 (214) 979-3000 Roy P.
Lessy,_ Jr.
WRIGHT & TALISMAN, P.C.
1050 Seventeenth Street, N.W.
l Washington, DC 20036-5566 (202) 872-5000 t
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1 If what Consolidated Intervenors is arguing is that the i
original intention of this Board in ordering the stay l
was that the stay would continue only until the moment the Commission had answered the certified question but that'the stay should not endure until final Appeal Board disposition of the appeal, we believe Consolidated l
Intervenors ascribe a completely illogical meaning to this Board's words and a completely illogical purpose to l
its actions.
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Thomas G. Dignan, Jr.
R. K. Gad III William S. Eggeling Kathryn A.
Selleck ROPES & GRAY 4
225 Franklin Street i
Boston, MA 02110 (617) 423-6100 i
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CERTIFICATE OF SERVICE C
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P 86 e 19 P5 09
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1, R; K. Gad III, one of the attorneys for the i
Applicants 3erein, hereby certify that on Novembed, M 986j uus I made service of the within document by mailing c es m;of A.
thereof, postage yirepaid, to:
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6 Peter B. Bloch, E6(iuire Dr. W. Reed Johnson
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Chairman Administrative Judge Administrative Judge Atomic Safety and Licensing I f J'+.,
Atomic Safety 2nd' Licensing Appeal Panel O.?
Board U.S. Nuclear Regulatory U.S. Nucles.r Regulatory Commission Commission '
Washington,.D.C.
20555
.1 Washington, D.C.
20555
,iDr. Walter H.: Jordan Anthony Roisman, Esquire
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e c Administrative'Juage Executive Director 881 W. Outer Drive Trial Lawyers for p
,c Oak Ridge, Tennessee 37830 Public Justice f'
2000 P Street,'N.W., Suite 611 Washington, D.C.
20036 9
. Chairman Cv Chairman Atomic Safety and Licensing Atomic Safety and Licensing Apppal. Panel s
i Board Panel 4
U. S.', tJuclear, Regulatory U.S. Nuclear Regulatory Coiamission Commission Washington, D.C.
20555 Washington, D.C.
20555 i
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I Stuart A. Treby, Ecquire Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director ~
1426 S.
Polk Street 1
U.S.. Nuclear Regulatory Dallas, Texas 75224 Commission 4.'
7735 Old Georgetown Road Bethesda, MD 20814' l
R4nea Hicks, Esquire Ellen Ginsberg, Esquire
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~f ' Assistant Attorney General
' Atomic Safety and' Licensing Environmental: Prctection Division Board Panel
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Box 12548, C.*,pitol Station U.S.
Nuclear Regulatory
~C eAustin, Texas 78711 Commission l
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Washington, D.C.
20555 t
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Dr. Kenneth A. McCollom Mr. Lanny A.
Sinkin Administrative Judge Christic Institute 1107 West Knapp 1324 North Capitol Street Stillwater, Oklahoma 74075 Washington, D.C.
20002 Ms. Billie Pirner Garde Mr. Robert D. Martin Midwest Office Regional Administrator, 3424 N. Marcos Lane Region IV Appleton, WI 54911 U.S. Nuclear Regulatory Commission Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 T lizabeth B. Johnson Geary S. Mizuno, Esquire dministrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P.O. Box X, Building 3500 U.S.
Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Maryland National Bank Bldg.
Room 10105 7735 Old Georgetown Road Bethesda, Maryland 20814 Nancy Williams Mr.' James:E. Cummins Cygna Energy Services, Inc.
Resident Inspector 101 California Street Comanche Peak S.E.S.
Suite 1000 c/o U.S. Nuclear Regulatory San Francisco, California 94111 Commission P.O.
Box 38 Glen Rose, Texas 76043 Alan S.
Rosenthal, Esquire Thomas S.
Moore, Esquire Chairman, Atomic Safety and Administrative Judge Licensing Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Panel Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Wash ngton, D.C.
20555 R.
K. Gad III
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