ML19325D638

Request to Continue Proceedings & Petition to Intervene by Citizens for Fair Util Regulation & Greater Fort Worth Group of Lone Star Chapter of Sierra Club.* Petitioners Have Requisite Interest to Establish Standing

ML19325D638
Person / Time
Site:	Comanche Peak
Issue date:	10/20/1989
From:	Griffin R CITIZENS FOR FAIR UTILITY REGULATION, GRIFFIN, R.L., Sierra Club
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19325D639	List: ML19325D638 ML19325D640 ML19325D643 ML19325D646
References
CON-#489-9332 CPA, OL, NUDOCS 8910250191
Download: ML19325D638 (13)

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.s UNITED STATES OF AMERICA hk

' NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD  !'

19 OCT 20 P3 :49 S

In.the Matter of 5 Docket Nos. 50-445-OL 1 S 54x446-OL l TEXAS UTILITIES ELECTRIC $ (Application for an i COMPANY, et. al. 5 Operating License) )

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' (Comanche Peak Steam Electric $ Docket No. 50-445-CPA .;

Station, Units 1 and 2) $ (Construction Permit I

$ Amendment) I

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REQUEST TO CONTINUE PROCEEDINGS AND l PETITION TO INTERVENE BY CITIZENS FOR FAIR j UTILITT REGULATION AND THE GREATER FORT WORTH '

GROUP OF THE LONE STAR CHAPTER OF THE SIERRA CLUB Introduction Citizens for Fair Utility Regulation (CFUR) was granted intervenor status in the operating license proceedings for the g . Comanche Peak Steam Electric Station on June 27, 1979, along with Citizens Association for Sound Energy (CASE) and ACORN . CFUR-participated individually and separately from the other I

intervenors. Following preliminary proceedings and initial l

E hearings on substantive issues, CFUR and ACORN withdrew from the proceedings. The three parties agreed at the time of the CFUR and ACORN withdrawal that the resources of each group were being seriously taxed by the proceedings,'and that the groups .

were competing for the same resources. It was agreed that CASE would remain in the proceedings as the sole intervenor. CFUR and its me'mbers remained involked in the OL proceedings as discussed below.

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8910250191 891020 PDR ADOCK 05000445 0 PDR

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Description of the Petitioners l-CFUR is a citizens' organization founded in 1976- for the purpose of challenging electric utility rate hikes. On several occasions CFUR intervened before the Texas Utility Commission to protect ratepayers. Intervention before PUC was and remains today a common approach taken by anti-nuclear organizations.

CFUR's work also includes educatien, research, advocacy, and providing assistance to public officials on energy issues.

The Sierra Club is a membership organization founded in 1892 and has almost half a million members. The Greater Fort Worth l Group of The Lone Star Chapter of,the Sierra Club was organized in.the early 1970s. The Group includes over 1,200 members in the greater Tarrant County area. The Club has consistently raised concerns about the safety of the plant.

Interest'and Standing of the Petitioners E

The interests of CFUR are predicated in large part on the l interests of its members. Two of CFUR's members have authorized the filing of this petition to intervene- on their behalf.

Priscilla Reznikof f, who resides at 6001 Forest Hill Drive, Fort Worth, Texas 76119 (approximately forty-five miles from the plant) authorized the original CFOR petition to intervene in 1979. Betty Brink, who resides at 7600 Anglin Drive, Fort Worth, Texas 76119 (approximately forty-five miles from the plant) is a spokesperson for CPUR and has authorized this p0tition on behalf of the organization. Mrs. Reznikoff and Mrs. Brink live, 2

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i work, recreate, and. travel in the environs of Comancho Peak ~ and I 1

eat food produced in an area that would be adversely affected by normal and accidental releases of radioactive materials from the j

1 plant. Their affidavits demonstrate interests in the proceeding 4

and its outcome and how those interests may be affected. I 1

(Affidavits are attachments A and B.) l

-l Mrs. Reznikoff and her husband and children use the area within fifty miles of the plant for outdoor activitie's including canoeing, camping, and hiking. They visit the recreational areas

• in Dinosaur Park and a nearby wildlife park. The Reznikoffs are l concerned for their health and safety and that of their children posed by the normal operations of Comanche Peak and possible accidents there.

Mrs. Brink uses the area within fifty miles of the plant for

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many recreational activities including canoeing in the Brazos

, River. The area within five miles of the plant is a favorite 1

camping site and is used for summertime hiking and fishing by the L Brink family. Mrs. Brink also frequents the restored town of 1

Granbury, a local tourist attraction, that is within twelve miles

.of the plant. Mrs. Brink lives on and owns property that has j been in the family for fifty-seven years. Mrs. Brink is ,

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concerned that operation of the plant will cause loss of health to herself and her family and that safety problems at the plant  !

will jeopardize her life hnd her property.

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. Mr. Burnam resides within fifty miles of the plant'in the southwest quadrant of Tarrant County, where his family has lived and owned their home for almost thirty-five years. The Burnams >

eat vegetables they grow on their land. As members of the Sierra Club, they organize and participate in many recreational activities within close proximity to the plant. Mr. Burnam is concerned that operation of the plant will cause loss of health ,

to his family and that safety problems at the plant will  ;

jeopardize his life and his property. (Affidavit is attachment t C.)

How Petitioners' Interests May Be Affected The operation o:f the Comanche Peak plant will endanger the health and safety of the petitioners' members due to routine -

and f

. accidental releases of ionizing radiation which will contaminate

.the air, food, and water upon which members rely. The OL

! proceeding is the petitioners' only avenue to improve the safety of the plant; the outcome of the proceeding will have a direct impact on the safety of the petitioners' members and their property. Recreation may be jeopardized by the project's impact l

l on the local river, recreation, and camping sites. A nuclear accident at the project will affect th'e lives and property of the L

petitioners' members. As the affidavits show, the affiants believe that their individual health and safety are at risk by operation of Comanche Peak.

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Specific Aspects of the subject Matter i

Petitioners adopt the existing contentions, Contention No. 2 1

- and Contention No. 5. 1 Factors Governing Late-Filed Petitions Section 2.714(a) (1) of the regulations provides that ,

nontimely filings will not be entertained absent a determination by the licensing board that the petition sh,ould be granted ,

based upon a balancing of the following five f actors: -

(i) Good cause, if any, for failure to file on time; i l

(ii) The availability of other means whereby 'the petitioners' interest will be protected; e (iii)- The extent to which the petitioners' participation may reasonably be expected to assist in developing a sound records (iv) The extent to which the petitioners' interest will '

be represented by existing parties; and ,

(v) The extent to which the petitioners' participation ,

will broaden the issues or delay the proceedings.

1. Good Cause

. CFUR has good cause for filing this petition late. CASE has L entered into a remarkable and unprecedented secret agreement that

( is connected with its agreed stipulation with the applicant.

That stipulation would result in the withdrawal of the remaining .

contentions and dismissal of the adjudicatory proceedings. This agreement has only recently been announced and brought to the attention of petitioners and the secret nature of portions of the i

agreement have only become known to petitioners within the last few days. The terms of the agreement that have not been released C 5

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are of course unavailable to petitioners to present to the board. However, it is clear that the settlement involves an exchange of money from the applicant to CASE and also involves s

' the settlement of the claims of many whistleblower witnesses who have filed actions or complaints against the applicant. The i complete terms of the settlement underlying the joint j stipulations between CASE and the applicant will not be released until the board has dismissed the adjudicory proceediags. The

,, board should note that Billie Garde, counsel for CASE, also 1 j

represents some whistleblower witnesses. Marshall Gilmore, a member of the board of directors of CASE, represents Charles Atchison, a whistleblower witness for CASE whose action against the applicant is now pending in the United States Court of ,

Appeals. Petitioners believe that Anthony Roisman, who has also represented CASE, represents a whistleblower witness in his l action against the applicant. It appears that counsel for CASE and a board member of CASE, have attorney-client relationships '

L with individuals who stand to gain if their cases are favorably ,

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settled with the applicant. The secrecy surrounding the exact nature and extant of the full agreement, when coupled with the possible conflict of interests between'the public represented by CASE and the individuals who are pursuing claims against the

. applicant, clearly raises a serious question as to whether the action by CASE was consiktant with its role as intervenor, or whether that role has been compromised in favor of individuals l

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who have meritorious claims against the applicant.

At the time CFUR withdrew from the proceedings, the intervenors had discussed the need to consolidate resources and to have a lead intervenor. As stated earlier, resources were )

i 3-hard to come by and competition between the intervenors was )

detracting from their collective ability to participate in the  !

1 proceedings. Based on discussions with CASE, CFUR and ACORN j

'l withdrew. Subs eque nt events continued to indicate that CFUR's j reliance on CASE was properly placed. CFUR perceived that CASE l was dedicated to the intervention and was doing an excellent job.

Approximately forty-five days ago, at the time CASE withdrew its i opposition to the new pipe support design, CFUR representatives asked CASE if it intended to continue the intervention. CASE j replied that it was not intending to withdraw from the  !

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proceedings and moreover that it saw the pipe support design issue as only a partial agreement (because it did,not include the installation of the pipe supports), and that it was CASE's view that there were plenty of other issues under Contention No. 5.

The settlement among CASE, its whistleblower witnesses, and the applicant is unprecedented. Neither CFUR nor any other concerned organization or ndividual could have foreseen such a turn in the proceedings. The inability to predict this extreme change in the plans of the sole intervenor should not be charged as delay against the petitioners. The NRC would hardly want to encourage every concerned citizen to intervene in proceedings on

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'l ' . I the of fchance that the lead in,te,rve,nor wo,ul,d , completely withdraw j i

from the proceedings. l l

2. Other Means to Protect' Interests i

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There are no other means for the petitioners to protect j i

their interests or th'e interests of their members. Adjudication  !

l of the operating-license amendment is the last available NRC forum prior to plant operation. Other methods of,giving input into the~ licensing process might include commenting on the SER )

and DEIS, making a limited appearance statement or filing a petition pursuant to 10 CFR 2.206. The ability to comment on the SER and DEIS would not petmit the petitioners to develop fully l

before the NRC the areas in which they have an interest. The j l

Ji- right to participate, including tne right to present evidence and i 1

l L cross-examine witnesses, is not available as part of the R

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opportunity to comment. A limited appearance statement, which is

not evidence, is also no substitute.

The opportunity to file a 2.206 petition does not represent a means whereby the petitioners can protect their interests l

l because these petitions relate to enforcement matters, not the

, significant interests of the petitioners who are concerned with the licensing for operation of the plant. ,

3. Contribution to the Record j Petitioners have important contributions to make to the l record. There are two witnesses who have significant l

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contributions to the record and who can be produced by c pe titione r s .

James Sutton, of Sun Lake, Arizona, retired from the NRC in

• July 1987, after a career as construction inspector for the AEC i'

and NRC, He has served on the national' board of the American g Society of Mehchanical Engineers. He performed the, duties of an inspector at the Comanche Peak plant for one and one-half years in 1985 and 1986, inspecting quality control. Mr...Sutton has [

file 3 allegations with Chairman Veck that hydro testing at Conanche Peak has not been done properly. It is Mr. Sutton's allegation that the plant is unsafe. He will testify that there are still remaining problems with electrical equipment and that C

the inspection and testing of piping has not been dor.e properly.

lie believes that there are numerous outstanding items from J k earlier inspections that have not been resolved. Mr. Sutton has I

extensive experience in the starting up proceas of five nuclear plants, and it is his opinion that the' plant at Comanche Peak is 1

not safe to operate. Petitioners have only learned of Mr.

Sutton's testimony on July 12, 1988. Petitioners can present him l as a witness if petitioners are allowed to intervene.

l There is a second witness, known to petitioners only as John Doe at this time, whom petitioners can produce as a witness and whose testimony will make significant contributions to the record. John Doe has made allegations that the applicant knows of perjury that has been committed by the applicant's employees

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j or agents, that the applicant knows that there are perjured  ;

1 statements in the existing record before the board, and the  ;

applicant has taken no steps to correct the record. This is a l

remarkable statment and Mrn Doe should be presented to the board  ;

as a witness to substantiate his claim and his further  !

allegations that the applicant has falsified documents, falsified engineering calculations, and knowingly failed to perform 1 necessary engineering calculations, and that there are now i existing life-threatening safety flaws at the Comanche Peak site.

Petitioners can produce Mr. Doe as a witness if they are allowed

,to intervene. 1 L. In addition to these two important witnesses, CFUR and the i

Sierra Club both have experience in participating before administrative agencies and in other legal forum on matters l l relating to the issues before the board. After CFUR withdrew as -

1 an intervenor, it con'tinued to remain involved in the proceedings l by working with CASE and by providing supporting education and

poli tical work. For example, Dick Fouke, now deceased, an l'

l' original member of CFUR and a founding member of CASE, worked as a consultant to CASE on engineering issues. Mrs. Brink and other i

CFUR members gave financial, research, and public relations support to CASE, in addition to providing transportation, food, and lodging for witnesses and lawyers involved 'in the proceeding s . CASE providhd documents to CFUR for examination and analysis. CFUR has a long standing interest in the case and is

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quite familiar with the voluminous record, and is thus in a good

q. position to make contributions to the record if allowed to intervene.

4. Representation by Other Parties f This factor must be decided in petitioners' favor. The only  !

intervenor is attempting to dismiss the proceedings and withdraw from the case. In the last several days Mrs. Brink has conferred with Juanita Ellis, Billie G0rde, Marshall Gilmore, .and Charles Atchison, all of whom are involved in CASE and all of whom E support the joint stipulation-entered into by CASE, and each of l

them, though supporting the settlem.ent, has advised Mrs. Brink i

that the plant at Comanche Peak is not safe. Furthermore, Mrs.

• Ellis remarked that the plant could never be made safe. CASE l . cannot at this point represent petitioners' interests. s

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i Although the staff might represent the petitioners insofar as they are members of the general public which the staff is -

charged to represent, there is no indication of compatibility on the issues. The burden is on the staff to show that its position is that of the petitioners on the issues. The staff's duty to represent the public interest in the enforcement of the Atomic Energy Act does not mean that its view'will be identical with all ,

individiuals or groups. In this case, the petitioners do not believe that the staff's position on issues, its technical qualifications, or its tpresumably ubnbiased perspective will represent their positions fairly.

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Lealay of Proceedings The petitioners are fully prepared to take the proceedings I as they currently exist. Thus, no delay in the proceedings can 4

be attributed to them save the approximately sixty days which petitioners are requesting to prepare their case. Prior to the withdrawal of CASE, the remaining issues in the case- were  !

considered to have substantial merit. If these issues do not have merit or can be resolved without a hearing the applicant or-the staff can and will use summary judgment to dispose of them.

Otherwise, 1 the outstanding issues, deemed as they have been to l J

. involve matters of public health and safety relating to ~ the l

operation of the plant, should be resolved. The applicant has been on notice for many years that these issues would be the -

subject of these proceedings and the staff likewise has been

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prepared to apply its resources to their resolution in this proceeding.

Conclusion The petitioners, having shown herein that they have the ,

requisite interest to establish standing and having shown that

• balancing of the factors required by 10 CFR 2.714 for late-filing weigh in favor of granting this petition for leave to 'otervene,

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i. '. pray for- an order- granting- this request to continue the f-proceedings. and .to make the petitioners parties. )

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Respectfully submitted,

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.> Richard Lee Griffin ('

600 North Main Street.  !

Fort Worth, Texas 76106 (817) 870-1401 ATTORNEY FOR PETIT. TONERS l.

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