ML20214G637

Consolidated Intervenors Response Opposing Applicant Application for Stay Pending Appeal.No Sound Reason Exists for Granting Stay Request.Certificate of Svc Encl

ML20214G637
Person / Time
Site:	Comanche Peak
Issue date:	11/21/1986
From:	Ellis J, Roisman A Citizens Association for Sound Energy, GREGORY, M., TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#486-1640 CPA, NUDOCS 8611260158
Download: ML20214G637 (9)

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BEFORE THE UNITED STATES

• DOCKETED NUCLEAR REGULATORY COMMISSION USNRC Before the Atomic Safety and Licensing Appeal Boggd NOV 25 R2:23 In the Matter of ) griu y

) 00ChGj';

TEXAS UTILITIES GENERATING COMPANY, ) Dkt. Nos. 50-445-CPA et al. ) -

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(Comanche Peak Steam Electric )

Station, Unit 1) )

CONSOLIDATED INTERVENORS' OPPOSITION TO

" APPLICANTS' [ sic] APPLICATION FOR A STAY PENDING APPEAL" Texas Utilities Electric Company and the minority owners (TUEC) have assumed that they have the singular privilege to ride roughshod over the rights conferred on parties to an NRC proceeding. In what can be at best called a " skimpy" pleading, TUEC argues by fiat that it is entitled to a stay of discovery because it will win its appeal and thus any discovery will be unnecessary. If such assertions were all that were required to obtain a stay of discovery, the Commission would have avoided all the details contained in Section 2.788. Or would TUEC argue that those are only required if the intervenors seek a stay and utilities with their vastly superior economic resources are entitled to preferential treatment? The stay application should be summarily rejected as woefully inadequate. But there are other reasons.

Fir = L, without the 9 tant at a request for a stay pending appeal, discovery is clearly permissible here since the action of the ASLB admitting the amended contention automatically triggers 8611260138bh0044D PDR ADOCK PDR G

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I discovery rights. Section 2.74 0 (b) (1) . Thus this Board's prior action holding discovery in abeyance with respect to a different }

admitted contention 1 is not relevant here because it is founded on a conclusion that, at a minimum, is no longer relevant to the current stay request, i.e., the conclusion of this Board that the admissibility of one of the original contentions raised a

" serious question" which challenged the entire proceeding. That conclusion was reached only after full briefing of the merits of an appeal filed by TUEC and the staf f and oral argument before this Board.2 The request for stay now before this Board has had 1

Consolidated Intervenors have a discovery request pending that is relevant to the admitted amended contention but that was held in abeyance by this Board's Order of July 2, 1986, as clatified by its Order of July 3, 1986. The precondition for releasing that abeyance was issuance of the Commission's decision of September 19, 1986. TUEC does not agree with this view, although it chose to express its contradiction of the plain words of this Board's July 2 Order not by an affirmattive filing but only in ,

defense to Consolidated Intervenors' Motion to Dismiss Pending '

Appeal As Moot and/or For Lack of Jurisdiction and To Immediately Dissolve Order Stayit.9 Discovery. See Permittees' Response to "labovej" (11/14/86). Consolidated Intervonors would expect this Board to take a dim view of a party privately assuming (but only when it is to its own advantage) it knows what this Board intends even in the f ace of contrary language in this Board's order, and we would expect the Board to encourage the position taken by Consolidated Intervonors seeking an explicit ruling on a matter of uncertainty of which it seeks to take advantage. See, e.g.,

Consolidated Intervenors' Request for Clarification and Request for Reconsideration (July 2, 1986) and Consolidated Intervonors' Motion to Dismiss Pending Appeal as Moot and/or For Lack of Jurisdiction and To Immediately Dissolve Order Staying Discovery (filed 10/31/86, only after it was clear that a new contention had boon admitted about which no " serious question" could remain (except in TUEC's mind)).

2 Even that original stay request was suf ficiently inadequate that this Board deemed it necessary to permit TUEC the extraordinary opportunity to file a second brief in support of its stay request. Urder of June 23, 1986. As a result, TUEC filed a reply brief consistiny of 13 pages of additional argument in suppor t of the stay request. Apparently emboldened by its last successful effort to " mousetrap" Consolidated Intervenors by L

no similar thorough review nor is there any comparable basis for doubt. In short, the fact that this Board once held discovery in abeyance when the correctness of the admission of another contention was in question is totally irrelevant to the pending stay request.

Second, there is no sound reason that TUEC has or could advance for 9tanting the stay request. The requirements that

• must exist for the extraordinary relief sought are simply not present here.

a. Strong showing of likelihood of prevailing on the merits Unlike the initial ai. peal, which focussed on the substantive issues of whether the contention was of the type that was legally admissible, TUEC here has focussed virtually its entire argument on appeal on the procedural niceties of pleading, resting almost exclusively on the alleged failure to meet the late-filed contentions' requirements. Although Consolidated Intervenors will fully brief the appeal issue in the future, it is apparent now that these arguments hardly raise the serious questions that this Board perceived were presented by the original appeal. In its September 19, 1986, Order, CLI-86-15, 24 NRC at slip op. f j p. 7, the Commission appeared to invite an amended contention 1

referring to the contention "as currently worded," thus by 1

underfiling in its opening brief (or at least failing to anticipato and address the flaws in its initial pleading), TUEC j

has gono even further here by filing essentially nothing in support of its request for stay except a brief in support of its appeal. Seo' argument . supra, p. 1.

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implication acknowledging that a timely filed amended co$tention should be admissible if it otherwise met the pleading requirements. The admission of a late filed contention is casically a discretionary action and thus subject to substantially less appellate scrutiny than if there were an alleged error of law. See Virginia Electric i Power Co.- (North Anna, Units 1 and 2), ALAB-34 2, 4 NRC 98,107 (1976); Public Service Co. of Indiana, Inc. (Marble Hill, Units 1 and 2),: ALAB-339, 4 HRC 20, 23 at n. 7 (1976); _ Florida Pot f er i Light Co. (St.t Lucie, Unit 2), ALAB-420, 6 NRC 8 (1977). The correct ess of the ASLB cecision is apparentn on its face and, should further/

suppor t be required, it is contained in our briefs to the hSLB (Consolida ted Intervenors' Motion to Admit Contentions or, in the Alternative, For Reconsiderattion of Certain Previously De,nied Contentions, 9/30/86; Consolidated Intervenors' Reply to Permittees' and Staf f's Responses to Motion to Amend Contentions or, Alternatively, to Reconsider, 10/22/86) and our Comments on CLI-86-15, 10/7/86, to this Board. There is substantial doubt that TUEC will prevail on the merits of iEs proce,durally based appeal.3 3

Since the Staff is not seeking a stay of discovery, the merits of its appeal are not involved here. H owe ve r , it is worth noting that the Staf f's repeated arguments about an alleged inadequate basis for the contention (echoed somewhat by TUEC) have twice been rejected by the ASLB and not given controlling weight by this Board since, if the original contention had a flawed basis as the Staff contended, it would have been unnecessary to reach the certified question. The flaw in the lack-of-basis argument iG tho Staf f and TdEC's f ailure to take seriously this Board's rulings in llouston Lighting i Power Co. (Allens Creek), ALAD-590, 11 NRC 542, 549 n. 10, and its predecessors. As is apparent from their brief, they challenge the correctness of the asserted bases, not their adequacy.

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b. Harm to TUEC TUEC's mere assertion of this requirement without providing any substantiation for the assertion is not a mere oversight. A substantial portion of the responses to discovery sought here have already been received in the OL proceeding. Thus the volume of additional discovery sought now is less than what was sought before. In addition, the assertion made does not and could not establish any unique or special injury to this utility over any utility f aced with discovery on a contention from which an appeal is sought.

Section 2.788 does not make all such harm in all cases automatically sufficient. However, there are some aspects of the discovery that have not been answered in the OL and that TUEC has previously argued would be extremely onerous to answer, relatin9 to the causes of the failure to build CPSES properly in the first instance. What TUEC failed to disclose and what we have now learned as a result of pursuing the CPA discovery in the OL proceeding is that TUEC has undertaken a detailed audit seeking much of the information sought in discovery. See '

Attachment A to this brief (see particularly pages 2, 3-6).

Although that audit may not yet be completed, the data gathered by the auditors, any findings (preliminary or final), any progress reports to TUEC from the auditors, and any internal memoranda of the auditors would be highly relevant and easily provided in response to the pending and as yet unanswered discovery requests or causes for delay. Thus, although admittedly TUEC would incur some inconvenience and expense should discovery continue, it has totally failed to provide any specific

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evidence o5 the magnitude of the harm or of which questions allegedly _would produce that harm. This factor does not provide t ,

any subst'antial support for a stay.

c. Irreparable injury to Consolidated Intervenors We are' fast approaching the one year anniversary of the unwarranted grant of the construction permit extension to TUEC. ,

From the outset Consolidated Intervenors have been concerned '

a that this case might become moot as the result of the passage.of time. This concern was echoed by the ASLB in its Memorandum (Adoption of Discovery Schedule), 6/6/86, p. 1, and recognized by this Board in expressing its willingness to consider lifting its abeyance o.rder if the Commission did not act with " reasonable dispa tch." Order (7/3/86), p. 2. TUEC now proposes even further delay in case preparation <which Consolidated Intervenors could fruitfully pursue even while the present appeals are pending.

..TUEC s .one-sentence assertion f that Consolidated Intervenors will not be injured by delay ignores what it already knew was the principal source of; injury to1 Consolidated Intervenors.

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, , d. Public interest t

The public interest is not' served by denying to a representative of the public seeking to exercise rights guaranteed to it by the Commission (see this Board,'s Memorandum and order (7/2/ 86) , pp. 9-10 n. 13) - an opportunity to prepare its t

case.before the passaye of time _substantially erodes, if not moots, the issue sought to be litigated. The mere economic cost i

to TUEC, ev'en if' substantial, is not sufficient to rob 4

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f Consolidated Intervenors of the opportunity to try their case.

That opportunity is assured not only by the Commission but by Congress. Were this a case where the utility were seeking to rush to judgment to begin construction or operation, the delays to which Consolidated Intervenors are being subjected would be considered totally unacceptable for the utility. Whatever may be the NRC's view of justice, it must at least be even-handed.

Consolidated Intervenors seek expedition and the public interest demands they obtain it.

CONCLUSION Won't the hammer of severe justice that f alls so frequently on the under-funded and under-represented intervenor ever fall on the ineptly and arrogantly represented utility? This is a motion that tests that question.

Respectfully submitted,

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ANT 110NY Z/R syn Trial Lagye s for Public Justice 2000 P Str et, NW, #611 Washington, D.C. 20036 (202) 463-8600 Counsel for Meddie Gregory A L -

ANITA ELLIS #pf 1 26 South Polk L allas, TX 75224 (214)946-9446 Representative for CASE Dated: November 21, 1986 i

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UNITED STATES 00LME!E?

NUCLEAR REGULATORY COMMISSION "

Before the Atomic Safety and Licensing Appeal Boarf$ N]V 25 R2 :23 In the Matter of ) CFFla u- . t i.t

) 00CFEI!m. 9 avk!

mor p u TEXAS UTILITIES GENERATING COMPANY, ) Dkt. Nos. 50-4 4 5-CPA "' '

et al. ) , .

)

(Comanche Peak Steam Electric )

Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of CONSOLIDATED INTERVENORS' OPPOSITION TO " APPLICANTS' [ sic] APPLICATION FOR A STAY PENDING APPEAL were served today, November 21, 1936, by first class mail, or by hand where indicated by an asterisk, and by Federal Express where indicated by two asterisks, upon the following:

Administrative Judge Peter Bloch U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Walter H. Jordan 881 West Outer Drive Oak Riv!), TN 37830 .

Dr. Kenneth A. McCollom 1107 West Knapp Stillwater, OK 74075 Elizabeth B. Johnson Oak Ridge National Laboratory P.O. Box X, Building 3500 Oak Ridge, TN 37830 Nicholas Reynolds, Esq.

Bishop, Liberman, Cook, Purcell & Reynolds 1200 17th Street, NW Washington, D.C. 20036 9

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Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Geary S. Mizuno, Esq.

Office of Executive Legal Director U.S. Nuclear Regulatory Commission 7735 Old Georgetown Road, 10th floor Washington, D.C. 20555 Thomas G. Dignan, Jr.

Ropes & Gray 225 Franklin Street Boston, MA 02110 Alan S. Rosenthal, Chairman Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. W. Reed Johnson Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Thomas S. Moore, Esq.

Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 4

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& ~ ANTHON R SMAN