ML20248J360

Request for Stay Citizens for Fair Util Regulation.* Requests That Commission Retain Authority to Order That Fuel Loading & Low Power License Not Be Immediately Effective,Per Util Intent to Request License.Certificate of Svc Encl

ML20248J360
Person / Time
Site:	Comanche Peak
Issue date:	10/15/1989
From:	Griffin R CITIZENS FOR FAIR UTILITY REGULATION, GRIFFIN, R.L.
To:	NRC COMMISSION (OCM)
Shared Package
ML20248J350	List: ML20248J347 ML20248J356 ML20248J360 ML20248J380
References
CLI-88-12, CPA, OL, NUDOCS 8910180151
Download: ML20248J360 (16)

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' UNITED STATES OF' AMERICA-NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION-  ;

S In the Matter of-

. . .S . Docket Nos. 50-445-OL' E TEXAS UTILITIES ELECTRIC

$ 50-446-OL'-

COMPANY, et al. S .

50-445-CPA

. $ Docket.No.

-(Comanche Peak Steam-Electric' S Station, Units 1 & 2)- S S

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REQUEST FOR STAY . I CITIZENS FOR FAIR UTILITY REGULATION 1

Richard Lee Griffin Counsel for Citizens For Fair. Utility Regulation October'15, 1989 8910180151 891015 P.DR - ADOCK 05000445 C' PDR

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1 63 g- -UNITED GTATES:OF AMERICA 1 g NUCLEAR REGULATORY COMMISSION

'BEFORE-THE COMMISSION-r S In the Matter of: S. .

5 Docket Nos.-50-445-OL'

-TEXAS UTILITIESTELECTRIC S 50-446-OL J . COMPANY,.et al.-

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

'S Station, Units 1 & 2)' S S

I REQUEST FOR STAY .

CITIZENS FOR FAIR UTILITY REGULATION Citizens foroFair Utility Regulation, hereinafter referred

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to as CFUR, filed a petition for' review in the- United- States, Court of Appeals for the~Fifth Circuit, seeking review of _the

, Nuclear Regulatory Commission- order CLI-88-12 denying CFUR's

petition to intervene in this proceeding. All briefs have been filed in the court of appeals, and the record will be filed on or before October 24, 1989. The case will not be submitted for the i bourt's consideration until the record is filed.

TU Electric, the applicant, has announced its-intention to

. r eq ue s t ' in the immediate future, a license authorizing fuel h loadi ng and low power testing. If a decision directing the issuance or amendment of an operating license is made, it is

. effective immediately upon issuance, and the Director of Nuclear Reactor Regulation is commanded by regulation to issue the

• license ~or amendment within ten days. 10 C.F.R. S 2.764 (a) and j (b). Licenses to load fuel and to operate up to five percent of rated power are specifically excluded from automatic review by 1

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- the Commission and are immediately effective. 10 C.F.R. S 2.764 I l

(f). Other licensing decisions are considered stayed for. thirty i days pending review of the initial decision by the Commission; j l

I fuel loading and low power testing decisions are not. 10 C.F.R. S 2.764 (f)(2)(iii). However, the Commission retains the authority to order that a fuel loading and low power license not be immediately effective. 10 C.F.R. S 2.764 (a).

A stay may not ordinarily be requested from the court of J appeals unless it is first requested from the agency. Fed. R.

App. P. 18. The stay provisions of 10 C.F.R. Part 2 apply to motions by parties or to Commission review on its own motion. 10 C.F.R. SS 2.788 and 2.764 (f)(2). The Commission's denial of CFUR's petition to intervene has left CFUR a nonparty for such purposes. However, considering the policy underlying Fed. R.

App. P. 18, and considering the Commission's authority to deny immediate effectiveness of initial licensing decisions, 10 C.F.R.

S 2.764 (a), CFUR requests the Commission to entertain this request for a stay. Specifically, CFUR requests the Commission to stay the otherwise immediate effectiveness of an initial decision to grant a fuel loading and low power license in this proceeding, and to stay the issuance of such a license by the Director of Nuclear Reactor Regulation. CFUR requests such a stay pending the resolution by the court of appeals of CFUR's l

petition for review. Should the Commission deny a stay pending final order of the court of appeals, CFUR requests a temporary stay for a reasonable time within which to apply to the court of appeals for a stay under Fed. R. Civ. P. 18.

The regulation governing stays directs the Cor. mis sion to 2

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1 consider whether the moving party has made a strong showing that )

it is likely to prevail on the merits; whether the moving party will be irreparably injured unless a stay is granted; whether other . parties would be harmed if a stay were granted; and where j the publ.ic interest lies. 10 C.F.R. S 2.788 (e). The same factors are used by the courts to determine whether or not to grant a stay. See Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958).

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1. Is the moving party likely to prevail?

It should be noted from the outset that this question does not imply that the moving party must show with mathematical logic that its chances of winning the appeal are better than fifty

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percent. If the movant were required in every case to show that the appeal would probably be successful, the rule would not require that application first be made to the agency whose order is under review.. The agency has already decided the merits. The requirements of Fed. R. App. P. 18 make sense only if in appropriate cases the other three factors can justify a stay by the very agency that issued the order, without having to persuade the agency to change its decision. See Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. ,1981).

The probability of success on appeal is but one factor, and can be understood best not as a mathematical prediction, but as a question of whether the status quo should be maintained pending a decisien on the merits. In other words, the Commission need not be persuaded that it erred, but may exercise its discretion to grant a stay if it finds that the appeal presents a serious legal 3

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l question and the facts tend to show that the status quo should be maintained in the interim. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). This latter consideration can be determined by an analysis of the remaining three factors--harm to the moving party, harm to opposing parties, and the effect on the public

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i interest.

With this in mind, CFUR will not reargue its petition to f

1 intervene or its briefs to the court of appeals. However, the i d

Commission should consider the serious legal questions raised in the appeal. CFUR believes that it has shown that the Commission I misapplied the standards of 10 C.F.R. S 2.714, which govern intervention. More specifically, CFUR challenges the application l by the Commission of commission precedent and judicial precedent 1

in determining what constitutes good cause for late filing of a petition to intervene. The briefs filed by CFUR in the court of appeals challenge a mechanical application of this formulation: i 1

~"Long-standing and well-settled Commission precedent clearly holds that one party may not demonstrate ' good cause' for late l

intervention by attempting to substitute itself for another party which has withdrawn from the proceeding." CLI-88-12, pp. 4, 5.

The application of that formula has become, sub silentio, an l absolute rule that no intervention is allowed if one intervenor has withdrawn from the proceeding, regardless of the reason for the withdrawal. This is a serious legal question. .

l Furthermore, this case presents a unique question: will an applicant for a license be allowed to secure the dismissal of {

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adjudicatory hearings, the withdrawal of an intervenor, and the-silence of ' witnesses by paying large sums of money to the intervenor and the witnesses? CFUR in its petition to intervene could only argue this question by analogy- to one settlement agreement it had--that between Mr. Macktal and Brown & ' Root.

Since then another Comanche Peak settlement, between Mr., Polizzi 1

and Gibbs & Hill, has come to light and was declared by the Secretary of Labor to be void as against public policy insofar as it restricted the flow of information about safety and regulatory i

matters known by Mr. Polizzi. Polizzi v. Gibbs & Hill, Inc., 87- )j ERA-38 (July 18, 1989). )

CFUR has been told by parties.to the agreement that the settlements- with the whistleblower witnesses were conditioned on the withdrawal of CASE. This is very significant, and it is a new development in licensing proceeding practice.

Marshall Gilmore, a director of CASE whose wife was also a i board member, represented Charles Atchison, a whistleblower, in his claims of retaliation by TU Electric in violation of the l l

Energy Reorganization Act of 1974. Anthony Roisman and Billie )

Garde, attorneys for CASE, also represented individual i

whistleblowers in similar claims.

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The attorneys for CASE and members of its board had a sig-nificant economic interest in settling the whistleblower claims.

TU Electric conditioned the settlement of the individual claims l l

on the dismissal of the hearings and the withdrawal of CASE.

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l Under these circumstances continuation of the intervention would l be very expensive for CASE's lawyers. When CASE withdrew and the I

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hearings were dismissed, some of the whistleblower claims were settled. Mr. Roisman, Ms. Garde, and Mr. Gilmore received $1.5 million. As far as CFUR knows, the individual settlement agree-ments have not been reviewed by the NRC, and have not been made public.

It appears the settlement was not based on a resolution of safety issues; . this is not the kind of settlement the NRC should allow. The combination of the unavailability to this date of the settlement ' agreements, the approval of the settlement by the presiding officer without examining the individual settlement agreements, and the conflict of interests created for CASE law-yers by TU Zlectric's offer to settle the individual. claims only if CASE withdrew as an intervenor, raises a serious question of laws should the Commission consider these meretricious r e e.s o n s -

for the withdrawal of CASE as an intervenor in determining whether CFUR .has showr, good cause for filing its petition to interver.e late?

2. Will irreparable injury occur if the stay is not granted? ,

Before addressing this item, CFUR respectfully requests the Cortmission to reevaluate that part of its decision in Public Service Compa13y of ,New Hampshire, (Seabrook Station, Units 1 and 2), CLI-89-8, 29 NRC 399 (1989), having to do with irreparable harm. Id., 409-412. First of all, that opinion states the untenable position that granting a low power license cannot, as a matter of law, cause irreparable harm. The opinion buttresses this extreme statement by incorrectly stating that a court of appeals reached the same conclusion in Cuomo v. NRC, 772 F.2d 6

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'972, 976 (D.C. Cir. 1985). The court'in Cuomo stated: "Probabi- H lity of success-is inversely proportional to the degree of irrep-arable injury evidenced. A stay may be granted with either a high: probability of success.and some injury,- or vice versa."

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'Id., at 976. Two of the rearons found against the movants in j Cuomo have no bearing here--a claim that.the appealable issues.

would be moot if a stay were not granted, and a claim that the National Environmental Protection Act presumptively justified a

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stay. The Cuomo issue germane to CFUR'r request is whether l irradiation of the reactor and related risks can constitute  ;

I irreparable harm. Far from saying these risks could never amount to irreparable harm in low level testing, the court in Cuomo weighed the allegations and found them wanting. Id.

If fuel is loaded in the Comanche Peak facility and low .

power generation of electricity is allowed, a threshold will have been crossed, from which we can never return regardless of the final outcome of the resolution of the safety issues still critical to this plant's safe operation. Nuclear fissioning will have occured, and nuclear waste will have been generated. The interior of the plant will be contaminated in a way that will change its character forever.

CFUR represents people whose health, safety, and livelihood will be harmed if there is an accident at the nuclear facility.

Some members live within three miles of the plant, and the railroad line that would carry fuel into and nuclear waste out of the plant runs across the land on which they reside. An accident can occur during low power operation and the consequences would 7

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Ebe severe to those near the plant. While the NRC may argue,.with some justification, that large scale contamination cannot occur over a widespread area (into the' Dallas-Fort Worth areas for example) from an accident during low power operation, that is simply not true for those in the immediate vicinity of the plant.

.Further, if CFUR prevails and a license is denied, then the contamination of this plant with radioactive materials will make the plant unsuitable for use as a coal or gas fired. plant. . Plant workers will be exposed unnecessarily to radiation as the plant l

is cleaned up; the environment will be exposed to radioactivity l it otherwise would be free of; waste will have been generated; and parts of the plant will be contaminated to such a degree that there will have to be removal of those parts to a safe burial site, which does not now exist. Where nuclear easte must remain ,

I on site, an accident can occur in an on-site waste storage area as well as in the reactor area, and the consequences can be more ,

severe, according to a February 5, 1987 report titled "Beyond

,esign-Basis D Accidents in Spent Fuel Pools (Generic Issue 82),"

prepared for the NRC by the Brookhaven National Laboratory. j Recent developments are directly pertinent to safety problems. Check valves failed during testing in April and May, 1989. The failure was critical and, had the plant been operating with nuclear fuel, radioactive water would have travelled through pipes outside the containment vessel. Also, thousands of counterfeit bolts have been used throughout the plant during a ten year period. With respect to the check valves, an NRC report  ;

cf July 10, 1989, said TU management's response to the issue was 8

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inadequate. The bolt issue is under investigation by the NRC Office of Inspector General and has not been resolved.

In June'1989, Shannon Phillips, a retired NRC inspector and former resident inspector at Comanche Peak, wrote a memorandum to the Commission stating that TU had misled the Commission about construction problems at Comanche Peak.. He reported that TU exerted pressure on top NRC management to downgrade his findings in a 1988 inspection report that dealt with repairs made in 1988 to over 7,400 feet of service water piping in the piping system which provides cooling water to the plant's reactor systems.

Phillips' memo included an internal TU memo which Phillips said showed a pattern of shoddy inspection techniques by TU.

On October 4, 1989, a group of NRC staff inspectors who had worked at CPSES for the past year informed the Commission that

" ...is neither accurate nor complete...."

the pending SALP report They said factual information had been deliberately withheld, and the utility should receive a below average rating on its past year's pe rf o rruance , rather than a rating that it had met expcetations. The group of inspectors stated that the plant is at least six months away from fuel loading.

In State of Ohio ex rel., Celebrezze v. N.R.C., 812 F.2d 288, 290 (6th Cir. 1987), the court of appeals said: "Though in o this case the likelihood of a nuclear accident is concededly j small, the potential severity is enormous." Id., 291. (In Celebrezze a petition to intervene in licensing proceedings was denied, and the court of appeals stayed the issuance of a full power license pending review.

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The harm to CFUR and its members is clear. The history of construction blunders and coverups at the plant between 1974 and i

l 1986 are well known to the Commission. '!he facts set out above bring that history right up to this date, and make the safety of low power licensing extremely doubtful.

3. Will granting a stay harm other parties?

Harm to others is tested by substantiality, likelihood of occurrence, and adeguacy of proof. Cuomo, supra, at 977. In measuring harm to others, ". . . mere economic loss does not consti-tute irreparable injury." Celebrezze, _ supra, at 291. It is clear from these cases that this factor weighs in CFUR's favor.

4. Where does the public interest lie?

It is probable that all parties to this case will claim the mantle of public interest. See Cuomo, supra, at 988. However, f CFUR urges the Commission to adopt the view found in Celebrezze:

"Though there is more than one public interest involved here, the most crucial concern is public safety." Id., at 292.

Conclusien CFUR has adequately demonstrated the need for a stay, and requests the Commission to grant one.

Respectfully Lub.?itted, 9 ,

Richard Lee Griffin //

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Attorney for CFUR 10  ;

'C'JETED CERTIFICATE g SERVICE I hereby certify.that on this the 16th day ofg e @ g ,f43 M ,

sa. true and correct copy of the foregoing " Request for Stay" . was r;r t . , , ,

served upon the following named counsel: by persdtiaY delfver'y to Janice Moore, and by facsimile transmission to Thomas Schmutz and Dirk Snell, .followed by first class United States mail, postage prepaid.

Janice E. Moore, Esquire Office of the General Counsel United States Nuclear Regulatory Commission Washington, D.C. 20555 Thomas A. Schmutz, Esquire Newman &_Holtzinger Suite 1000 1615 L. Street N.W.

Washington, D.C. 20036 Dirk D. Snell, Esquire U.S. Department of Justice P.O. B9x 23795 L' Enfant Plaza Station

' Washington, D.C. 20026 4

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LL P ichard Lee Gritiin l

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ADDENDA l

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