ML20006C481
| ML20006C481 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 02/01/1990 |
| From: | Edgar G NEWMAN & HOLTZINGER, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#190-9777 CLI-89-06, CLI-89-6, CPA, OL, NUDOCS 9002080096 | |
| Download: ML20006C481 (13) | |
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5 POCKETED G. , UNITED STATES OF AMERICA , ; NUCLEAR REOULATORY COMMISSIO5F FF R - t 1990 2 arrane enre comanssion 1 DOCVETING & )* l M towiCE BRANCH oy 6.9 SNM NHo In t'ne Matter of ) Docket Nos. 0-4
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TEXAS UTILITIES ELECTRIC ) L (Application for an COMPANY, et al. )
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) Operating License)
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(Comanche Peak Steam Electric ) and Station, Units 1 and 2) )
). Docket No. 50-445 CPA #
i -)
, ) (Construction Permit
- ) Amendment)
APPLICANTS' ANSWER TO REQUEST POR STAY BY CITIZEMS FOR FAIR {ITILITY REGULATION Citizens for Fair Utility Regulation ("CFUR") has, for the 1 second time in recent months, requested that the-Nuclear
- Regulatory Commission ("NRC" or " Commission") stay the issuance
) of a low-power operating license ("OL") for the Comanche Peak l l Steam Electric Station ("CPSES"), Unit 1. The Commission's prior decision denying CFUR's first stay request found that such relief I would be found, if at all, before the United States Court of i Appeals. CFUR has made no attempt to show why the Commission Furthermore, should not adhere to this well-reasoned decision. even if CFUR's request for a stay was properly before the. Commission, it should be denied. CFUR's request is patently deficient, since it does not even attempt to satisfy the Commission's long-standing regulations governing the issuance of a stay (aan 10 C.F.R. S 2.788(e) (1989)) and as CFUR was not a party before the Commission, it has no standing to seek such a 1 9002080096 900201 nA PDR G ADOCK 0500044S PDR
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.!a b # -2'- 1 l stay. The stated basis for CFUR's request is that CFUR would like to have time to review a Staff report on CFUR's concerns and to incorporate the results of that review in a stay request to .]
the Court of Appeals. CFUR's request thus relies-upon the hope I l ! that the Staff review of CPUR's concerns will somehow create i justification for a stay. However, CFUR has an affirmative burden to justify a stay and CFUR's hopes and conjecture about what the Staff's analyses may produce fall far short of that burden. Consequently, Texas Utilities Electric Company ("TU Electric" or " Applicants") respectfully requests that the , Commission deny CFUR's request for a stay.
Background
CFUR's extremely late-filed (nineLyears out-of-time,-six years after CFUR voluntarily withdrew from.the CPSES OL , proceedings, and one month after the Atomic Safety and' Licensing l Board ("ASLB") dismissed those proceedings) petition to intervene and request for a hearing was denied by the Commission in a. December 21, 1988 Memorandum and Order. CLI-88-12,.28 NRC 605 (1988), modified, CLI-89-06, 29 NRC 348 (1989). The Commission rejected CFUR's claim that. reliance on the sole intervenor in the proceedings - Citizens Association for Sound Energy-(" CASE") - to continue litigating and CASE's agreement with TU. Electric to settle those proceedings constituted " good cause" for CFUR's untimely filing. CLI-88-12, 28 NRC at 609-10. The Commission concluded that CFUR failed to make a compelling showing on the remaining factors in the
b;;. & i (S . f/ j ; p q r Commission's regulations governing late-filed petitions (10 C.F.R. S 2.714(a)(1)(1)-(v) (1989)) because: (1) CFUR did not demonstrate that it could contribute to the development of a- , sound record and (2) CFUR's-intervention after a six year absence ; from the proceedings would cause inevitable delay while CFUR 5 reacquaints itself with the proceedings and would broaden-thel issues as CFUR was attempting to interject issues which were-beyond the scope of the dismissed-proceedings. Id. at 611-612. The Commission denied a subsequent motion for limited. intervention and. reconsideration of CLI-88-12 by a former CPSES , worker. CLI-89-06, 29 NRC 348. CFUR sought review of both I Commission decisions in the U.S. Court of Appeals for the Fifth circuit. San Petition for Review, CFUR v. NRC (Docket No. 89-4124) (Feb. 16, 1989); Petition for Review, CFUR v. NRC (Docket I No. 89-4310) (May 1, 1989). On October 16, 1989, CFUR requested that the Commission stay the issuance of a low-power OL for CPSES-Unit:1 pending the resolution of its petition for review in the Fifth Circuit. Request For Stay, Citizens For Fair Utility Regulation (Oct. 16, 1989) ("First Request"). On October 19, 1989,- the Commission i summarily. denied CFUR's First-Request for a stay. Order, slip op. (Oct. 19, 1989). In addition, the Commission instructed the > NRC Staff to " address CFUR's safety concerns prior to issuing the low-power license." Id. at 3. On December 7,.1989, the NRC Staff held a public meeting with CFUR in order to determine the scope of CFUR's concerns and indicated that it would provide a l l
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n if ! I report on those issues before it issued a low-power OL for CPSES Unit 1. On January 27, 1990, CFUR renewed its request before the Commission for a stay. Second Request For. Stay, Citizens For , Fair Utility Regulation-(Jan. 27, 1990) ("Second Request"). CFUR implores "the Commission to stay fuel loadingEand low-power l operation of Unit 1 of the Comanche Peak Steam Electric Station, ... so that CFUR may use the staff report in preparing its request for a stay from the court of appeals, and so the court may benefit from the staff report in deciding on the l request." Id. at 3. t l argument I. CFUR Has Made No Attempt To Show.Why The Commission l Should Depart From Its Well Reasoned Prior Decision Denying CFUR's Request-For A Stay And Directing CFUR To The Court Of Appeals In the Commission's October 16, 1989 order, it held that the Commission was not the " appropriate body" to rule on a request for a stay of the effect of its own orders. It stated that: (t]he Commission's stay procedures are primarily intended for use in staying the effectiveness of orders of the Atomic Safety and Licensing Board, the Atomic Safety and Licensing Appeal Board, or.the-Staff pending
- further internal review within the Commission. Here, the Commission itself has issued a final order denying CFUR's petition for late intervention. Thus, the Court of Appeals is.the appropriate. body to determine whether preliminary relief should be granted in a judicial-proceeding to review a Commission order. Therefore, we deny the requested stay pending judicial review of the Commission's order.
Order, slip op., at 2 (Oct. 19, 1989).
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'l CFUR has made no attempt to show any reason why the-Commission should depart from this well-reasoned decision. In j the absence of-any such showing CFUR's Second Request must be l t
summarily denied. 'Any relief to which CFUR may be entitled, if at all, must be found before the Court of Appeals. II. CFUR's Petition Is Patently Deficient And Fails To ; l Meet-the Long-standing Regulations Governing the. l Grant Of A Stav , The Commission retains an inherent'" discretionary (and) supervisory authority.to stay (the NRC) Staff's actions." Pacific Gas and Electric Co. (Diablo' Canyon Nuclear Power Plant, ( Units 1 and 2), CLI-86-12, 24 NRC 1, 5'(1986), rev'd'in part on l other grounds, San Luis Obispo Mothers for Peace v. NRC, 799.F.2d 1268 (9th Cir. 1986). In staying the actions of the NRC Staff, the Commission has followed the traditional requirements for gebnt of preliminary injunction enumerated in Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958), which i are codified in 10 C.F.R. S 2.788(e)-(1989). San Texas utilities . Electric Co. et al. (Comanche Peak Steam Electric Station, Unit 1), CLI-86-4, 23 NRC.113, 121-22 (1986),.aff'd, citizens Ass'n for Sound Energv v. NRC, 821 F.2d 725 (D.C..Cir. 1987); 7 Diablo Canyon, CLI-86-12, 24 NRC at 5. In order to obtain a stay of the NRC Staff's decision to issue an operating license, CFUR has the burden to demonstrates (1) Whether the moving party has made a strong showing l that it is likely to prevail on the merits; l !
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(2) Whether the party:will be irreparably injured' unless a stay is granted;. l l' (3) Whether the grant of the stays would harm other l parties; and (4) Where the public interest lies.
-10 C.F.R. S 2.788(e) (1989). CFUR's request for a stay is patently defective since it fails to! address any;one, much less all, of the standards CFUR.must satisfy to obtain.the extraordinary remedy of a stay, u Consequently, CFUR's request for a stay must be denied.
CFUR's reluctance to address the factors governing a stay would appear to follow from the fundamental weakness of CFUR's case. While none of the four factors that contribute to the-Commission's decision on CFUR's grant of a stay is' determinative,- two factors have particular importance heres. -(l) whether~the movant will suffer irreparable injury 11n the. absence of the stay; 1/ Moreover, CFUR's request for a stay of the NRC: Staff. decision to issue a low-power OL is fundamentally flawed. in another respect. CFUR withdrew from the OL' proceeding. and its petition to intervene and request a. hearing on the
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OL for CPSES was denied. CFUR is not-a " party" to the OL proceeding and will not be a " party"'when the NRC Staff decides to issue the operating license. The Commission's rules contemplate that only a party to a proceeding may seek a stay of the Commission's decision and CFUR-lacks standing to seek a stay. 10 C.F.R. S 2.788(e) (1989); san-also CLI-89-6, 29 NRC at 354. Thus, CFUR voluntarily relinquished any standing to seek a stay of the NRC Staff's decision to issue an OL when it withdrew from the proceedings. CFUR has no right to seek a stay of the Commission's orders in the OL proceedings, or any NRC ! Staff decision related to that proceeding.
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concerns '.:r information beyond that already available to and j under review by the NRC Staff. 2/ ; Simply stated, CFUR has provided the Staff with information the Staff already has, and then hopes that the I staff's ongoing review of the information will somehow transform i i 2/ CFUR's concerns were raised in its October 15, 1989 request for a stay from the Commission and discussed with l the NRC Staff in written correspondence and during the December 7, 1989 public meeting. These concerns are not substantial new safety or environmental issues. They i largely mirror the findings of prior NRC inspection '
- reports at CPSES. A review of the transcript of the December 7, 1989 meeting indicates that CFUR had no ,
additional information or issues from those already under review by the NRC Staff. In discussing the check valve failures and TU Electric's response to the problem, Ms. Brink of CFUR stated, "We have no additional information. The only thing that we are asking is that you look at the historical record in determining what has gone wrong with the check valve ; failures." Tr. 70. CFUR's concerns about a former resident inspector's memorandum were already under ! investigation by the NRC before CFUR raised them and Ms. Brink admitted "We don't have additional information that ; you don't already have. We have what you have." Tr. 88. , In response to NRC Staff questions about any additional i information that CFUR might have about the group of NRC Staff inspectors who informed the Commission of their , concerns about the pending SALP report, Ms. Brink again ; stated, "No, we don't have any additional information to give you on this." Tr. 102. Those few issues which the NRC Staff had not already , l considered for CPSES were either not safety-related l l issues, so vague as to defy definition, or generic issues that are not suitable for litigation in an individual licensing docket. San Consideration'of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 54 Fed. Reg. 39,765 (Sept. 28, 1989); Waste Confidence Decision Review, 54 Fed. Reg. 39,767 (Sept. 28, 1989); Potnmac Electtje Power Co. < (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79,.85 (1974).
Y i l J .,. ; I CFUR's previously evaluated concerns into new matters that would f l either support CFUR's unsuccessful petitions to reinitiate the CPSES OL hearings, or provide a basis for CFUR's stay request. This turns CFUR's burdens upside down. CFUR was and is required ! to affirmatively show that its request for a stay satisfied the ; 10 C.F.R. $ 2.788(e) factors (1232, the standards in v3rginia j Patrolana Jnhhara). CFUR has made no attempt to meet this burden : and is simply hoping that the NRC Staff will somehow supply that basis. Mere hope cannot justify the extraordinary remedy of a stay.
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IV. The Schedule For Issuance Of The NRC Staff's l I Renort Provides No Ramin For A Etav i Finally, as is evident from page 3 of its filing,-CFUR's l request for a stay is based upon an entirely mistaken premise, i.e., that CFUR is entitled to receive the NRC Staff's report on , c i its alleged safety concerns on a schedule which would permit it to use such report in preparing a request for a stay from the Court of Appeals. Nothing in the Commission's previous action > nor in any law or regulation would give rise to such entitisment. The Commission instructed the NRC Staff to address CFUR's alleged safety concerns prior to issuing the low-power license. Order, slip op, at 3 (Oct. 19, 1989). Presumably the NRC Staff will comply with the Commission's instruction or any modification thereof. But, the instruction does not require the NRC Staff to e complete its review on any specific schedule other than prior to t i
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- h. issuance of the low-power license. # Moreover, the instruction did not create within CFUR any right to enforce compliance with ,
the directive, let alone to require action by the NRC Staff any J earlier than immediately prior to issuance of the low-power i , license. j i If CFUR had decided to defer filing its requeet for a stay i until after it receives the NRC Staff's report, that was its own f choice. A litigant requesting the extreme remedy of a stay should have available within its own resources ths information I that justifies such request without awaiting the results of 4 j information being developed by others, in the forlorn hope that l such additional information will provide the support that the l requester othwrvise lacks. l To the extent that CFUR argues that "[t)he report will be . relied upon by the Commission attorney in responding to CFUR's request for a stay in the court of appeals" and that "the court ; may benefit from the staff report in deciding on the request," these statements are pure conjecture by CFUR. Second Request at 3. In light of the substantive issues before the Court of l Appeals (which deal with the merits of the Commission's December i 1988 denial of CFUR's petition to intervene) and in TU Electric's 3/ At the public meeting on December 7, 1989, the NRC Staff indicated it would not provide its report to CFUR the day before it issued a license. Tr. 191. TU Electric.is not aware of any other commitment by the NRC Staff, particularly as to any commitment that its report'would be ! provided to CFUR on a schedule that would permit its use by CFUR in filing a request for a stay before the Court of Appeals.
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i i view, the concerns which the Commission instructed the NRC Staff : to review in its order of October 19, 1989, bear little relevance to the showing that CFUR would have to make to warrant the j issusnee of a stay by the Court of Appeals. In any event, j whether such concerns would properly be raised before the Court i i of Appeals and whether the timing of the issuance of the NRC : 1 Staff report thereon would be a matter properly raised before the ; Ccurt of Appeals, are questions that the Court of Appeals would have to determine based upon the overall contents of CFUR's - t request. There is no legal basis for the grant of a stay by the l Commission on the speculation that the NRC Staff's report might : be used in a pleading or might be of any use to the Court of ; Appeals. l l conclusion CFUR has failed to satisfy its burden to' demonstrate-the necessity for a stay or that its request otherwise satisfies the standards in the Commission's regulations. Consequently, TU Electric requests that CPUR's request for a stay be denied. Respectfully submitted, Texas Utilities Electric Company ! for the Owners of t e CPSES l
. /Ad/
J g R.feVban" I George L. Edga > Newman & Holtz nger, P.C. 1615 L Street, N.W., Suite 1000 1 Washington, D.C. 20036 (202) 955-6600 i Attorneys for Texas Utilities Electric Company k
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- UNITso STATS 3 or AnsarCA ,
NUCLaan a u..=e +wsamouzaToar v -- raaInst ConurSSzoM[0 C,f BRANCH j In the Matter of ) Docket Nos. 50-445 OL j
) 50-446 OL. i Ts1AS UTILITIs3 sLsCTRIC ) [
COMPANY, et al. ) (Application for an ;
) Operating License) {
)
l (Comanche Peak Steam slectric ) and i Station, Units 1 and 2) )
) Docket No. 50-445 CPA 1
) ;
) (Construction Permit j
) Amendment) >
I cERTIFIc1TE OF REEVICE , L I, David W. Jenkins, hereby certify that the foregoing - Applicants' Answer to Request for Stay by Citizens for Fair Utilities Regulation was served this let day of February, 1990, by mailing copies thereof (unless otherwise indicated), first class mail, postage prepaid to:
*Kenneth M. Carr *Forrest J. Remick .
Chairman U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.-20555 Washington, D.C. 20555
- Thomas M. Roberts j
- James R. Curtiss U.S. Nuclear Regulatory ';
U.S. Nuclear Regulatory Commission - Commission Washington, D.C. 20555 Washington, D.C. 205555
*Kenneth C. Rogers U.S. Nuclear Regulatory ;
Commission Washington, D.C. 20555 , I
- Indicates delivery by hand or overnight courier.
1
I l Assistant Director for
- Richard L. Griffin, Esq. !
Inspection Program 600 North Main Comanche Peak Project Fort Worth, Texas 76106 Division : i .U.S. Nuclear Regulatory *Janice E. Moore ! Commission Office of the General ! P.O. Box 1029 Counsel' Granbury, Texas 76048 U.S. Nuclear Regulatory ; Commission i Susan M. Theisen, Esquire Washington, D.C. 20555 l Assistant Attorney General : Attorney General of Texas Environmental Protection ; Division P.O. Box 12548 Austin, Texas 78711-1548 Robert D. Martin Regional Administrator, Region IV , U.S. Nuclear Regulatory
- Commission l
611 Ryan Plaza Drive Suite 1000 Arlington, Texas 76011 ;
*0ffice of the Secretary ,
Docketing & Service Branch ' , U.S. Nuclear Regulatory l Commission Washington, D.C. 20555 j David W. JenR4ng Dated: February 1, 1990 ll e r r 9
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