ML19305D560
| ML19305D560 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 04/11/1980 |
| From: | Goddard R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8004150223 | |
| Download: ML19305D560 (11) | |
Text
a UNITED STATES OF AMERICA 4/11/80 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
NORTHERN INDIANA PUBLIC Docket No. 50-367 SERVICE COMPANY
)
(Construction Permit Extension)
)
(Bailly Generating Station,
)
Nuclear-1)
)
NRC STAFF POSITION ON WHETHER GOOD CAUSE FOR CONSTRUCTION PERMIT EXTENSION MUST NECESSARILY BE "BEYOND THE CONTROL OF THE PERMIT HOLDER," UNDER 10 C.F.R. 6 50.55(b)
INTRODUCTION On March 13, 1980, in the Special Prehearing Conference in the matter of the extension of the Bailly Construction Permit, the Atomic Safety and Licensing Board directed the parties to present their positions on whether good cause to extend a construction permit, under the provisions of 10 C.F.R. 5 50.55(b),
must necessarily be attributable to factors "beyond the control of the parmit holder."
(Tr. 179-186.) For the reasons set forth below, it is the NRC Staff position that factors constituting good cause need not be beyond the control of the construction permit holder.
BACKGROUND On February 7, 1979, Northern Indiana Public Service Company (hereafter Applicant) requested an extension of the latest construction completion date for Bailly Generating Station, Nuclear-1, from September 1,1979 to September 1, G 8004150 ~@ 23
. t 1985. Subsequently, on August 31, 1979, Applicant requested that the latest date for completion of construction be extended to December 1,1987, or 98 months after the Nuclear Regulatory Commission concurs in the resumption of foundation pile placement at the Bailly site. Applicant alleged that the completion of construction of the Bailly facility had been delayed due l
to the following factors:
(a) a four-month delay in the actual issuance of the construction permit; (b) suspension of construction as required by a stay issued by the U. S. Court of Appeals for the Seventh Circuit; (c)in-stallation of a slurry wall which was not included in the original construc-tion schedule; and (d) a lengthy NRC Staff review of the method to be used for installation of foundation piles for the Bailly facility.
10 C.F.R. 5 50.55(b) provides for the extension of construction permits upon J
good cause.
That section further states:
The Commission will recognize, among other things, de-velopmental problems attributable to the experimental nature of the facility or fire, flood, explosion, strike, sabotage, domestic violence, enemy action, an act of the elements, and other acts beyond the control of the permit holder, as a basis for extending the completion date.
This section of the regulations is derived from Section 185 of the Atomic Energy Act, which reads in part as follows:
The construction permit shall state the earliest and latest dates for the completion of the construction or modification. Unless the construction or modification of the facility is completed by the completion date, the construction permit shall expire, and all rights thereunder be forfeited, unless upon good cause shown, the Commission extends the completion date.
f i
DISCUSSION I.
I Section 185 of the Atomic Energy Act of 1954, as amended, was patterned after the Federal Communications Act of 1938.-1/
l Section 319 of the latter statute l
specifically states that construction must have been prevented by causes not under the control of the grantee.
For unknown reasons the drafters of Sec-l tion 185 of the Atomic Energy Act did not require good cause to be justified i
t by reasons beyond the control of an applicant. However, in implementing Section 185, the Commission's regulating 10 C.F.R. 6 50.55(b), does enumerate j
factors which may be used to make a good cause showing.
Some of these factors l
are deemed to be beyond the permit holder's control.
The regulation indicates that the listed factors are not the only good cause justifications but are "among other things" which constitute good cause.
At the outset it should be noted that to the extent significance is attached l
to the drafting of Section 185, the Commission's regulations should not be interpreted to defeat legislative intent.-2/
Interpreting Section 50.55(b) 1/ See Hearings before the Joint Connittee on Atomic Energy on S. 3323 and H.R. 8862, 83d Cong., 2d Sess., at 117-18 (1954) f
-2/ There is a lack of significant legislative history on the meaning of good cause as used in Section 185. However, in 1975, William Anders, Chairman of the NRC told the Joint Committee on Atomic Energy that
" Experience has shown that these provisions, which track certain provi-sions of the Federal Communications Act, have not served any significantly useful purpose in the context of nuclear facility licensing." Proposed Nuclear Powerplant Siting and Licensing Legislation: Hearings on S. 1717 i
and H.R. 7002 Before the Joint Comm. on Atomic Energy, 94th Cong.,1st Sess. 62 (1975) (Statement of William A. Anders).
i 1
. to limit " good cause" showings solely to matters beyond the permitee's con-trol has legal and policy infirmities.
First, to so limit the regulation accords no significance to the phrase "among other things." Second, an un-necessarily broad interpretation of the phrsse "beyond the control of the permit holder" results if meaning is to be given other terms which the regu-lation recognizes as good cause such as strikes, explosions, fires, sabotage, or experimental nature. Third, the policy of encouraging permittees to make safety-related improvements would be thwarted if permittee's would risk losing their permit due to extended construction schedules necessitated by the resulting changes.
Finally, prior NRC practice and policy is at odds with such an interpretation.
II.
The Atomic Safety and Licensing Appeal Board has had occasion to examine the
" good cause" criteria of 10 C.F.R.150.55(b) in a single case.
Indiana and Michigan Electric Company (Donald C. Cook Nuclear Plant, Units 1 and 2),
- ALAB-129, 6 AEC 414 (1973).
In the Cook case, the factors assigned as causes necessitating a construction permit extension were bad weather, unexpected labor difficulties, and the redesign of certain reactor containment components.
Good cause for extension was found by the Staff. The parties stipulated that labor problems, including a shortage of skilled labor, and numerous work stoppages; unexpected inclement weather; delay in delivery of component parts; and perceived improvements in plant design resulted in delay of construction completion. These agreed-upon facts led the Licensing Board to conclude that
. the delays were not due to negligence on the part of the applicant, and that it would have been impracticable, because of these factors, to complete the two Cook units by the original completion dates.
6 AEC at 384.
The Appeal Board affirmed, finding the factors responsible for delay to be beyond the control of the applicants.~3/ The Appeal Board noted the absence of guidance on the question of what would constitute " good cause" under the atomic Energy Act Section 18F and 10 C J.R. 5 50.55(b). However, the Appeal Board did note that, absent the stipulation between parties, intervenors would have been free to conduct an examination into the factual sufficiency of the facts which the applicant alleged to constitute good cause for delay, and whether there were reasons other than those assigned by'the applicant which may have contributed to the delay.
6 AEC at 417. The Appeal Board did find that the failu:e to complete construction by the latest completion date specified in the construction permit was "due (in large measure at least) to circum-stances beyond their [ applicant's] control." 6 AEC 416.
The findings of fact made by the Licensing Board in the Cook case, and the issues before the Appeal Board in that case, were based substantially upon stipulations between the parties.
See, M., the Licensing Board opinion, 6 AEC 379, and the discussion of the alleged factors for delay therein at 382-84. However, the Appeal Board in dictum noted that at least by negative 3/ 6 AEC at 422.
It should be noted that the primary question which was being considered by the Appeal Board in Cook was the proper scope of the hearing into the question of good cause; namely, whether or not certain safety and environmental issues, which were soon to be the subject of liti-gation at the operating license hearings, should be considered at the good cause hearing.
. implication, Section 50.55(b) "might also be taken as some indication that a cause of delay which was not beyond the applicant's control might not be recognized as a basis for granting the extension," and relied upon the ana-logy that appellate courts " recognize" circumstances beyond counsel's control (eg., illness) as being a " basis" for obtaining an extension of the pre-scribed time for filing a brief. While such illness might itself be beyond counsel's " control," it does not necessarily follow that non-filing would be beyond counsel's control; eg., other counsel might be available to prepare the required filing, or the delay attributable to such illness might be in-significant relative to the total time available to prepare such filing.
Thus a rather broad interpretation of "beyond counsel's control" results where this approach is used. The Appeal Board's dictum is also carefully qualified with "might," "might not," " implication" and "some indication" in recognition of the need to examine specific facts before concluding how the regulation is best interpreted.
It is the position of the Staff that " good cause" includes more than simply factors which are beyond the control of the pennit holder, whether or not enumerated in the above regulation. The clause "among other things" in 10 C.F.R. 5 50.55(b), which precedes a specific listing of factors considered as good cause--that listing itself being followed by the phrase "and other acts beyond the control of the permit holder"--would be surplusage if all factors were required to be beyond the control of the permit holder as a basis for extending the scheduled date of completion.
For the above reasons, the Staff is of the opinion that Section 50.55(b) permits factors both within
. and beyond control of the permit holder to constitute " good cause" for an extension.
An examination of NRC practice and policy is instructive.
Good cause has been found in a multitude of situations, including cases wherein the causes were beyond and at least indirectly within the control of the construction permit holder.
A discussion of those cases follow.
In a case the posture of which is similar to that of Bailly (i.e., a request for lengthy extension of time to complete construction of a plant for which only a small percentage of construction had been completed) an applicant re-quested an extension of the North Anna Units 3 and 4 construction completion dates for each unit for a period of five years. The Staff found good cause present in (a) the utility's decision to divert the limited construction funds available during the period of March 1975 to March 1977 to North Anna Units 1 and 2 in an attempt to complete those units as quickly as possible, and (b) a one-year voluntary postponement (March 1977 to March 1978) in con-struction activities due to efforts at conservation and load management.
Moreover, the utility, when seeking its extensions, indicated that potential delays were expected in the future due primarily to the unknown construction budget and shortfalls in requested rate relief. Virginia Electric and power Co. (North Anna Power Station, Units 3 and 4), 44 Fed. RS. 29547 (May 21, 1979).
l In Diablo Canyon the Staff found good cause existed to grant three separate extensions of the construction permits. The basic reasons accepted as good l
l
. cause for each extension were the need for the applicant to evaluate the plants' capability to withstand a newly specified design basis earthquake, the need for the Commission to review and evaluate the applicant's studies, and a conclusion of the licensing process.
Separate extensions were authorized for six, seventeen and two month periods.
Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plants, Units 1 and 2), 41 Fed. Reg. 29225 (July 15, 1976); 43 Fed. Reg. 5445 (February 8, 1978); 44 Fed. Reg. 42827 e
(July 20, 1979).
In the Summer case, the NRC Staff found that good cause for a 36-month re-quested extension of the construction permit existed for the following reasons:
(a) redesign of the reactor vessel support system (necessitated by new design parameters for a postulated rupture in the reactor cavity);
(b) analysis of a shear fracture zone discovered in the excavation for the reactor building (necessitating a halt of structural work until it could be concluded that the fracture zones exposed in the excavation were not capable faults); (c) voids in the concrete which had been laid in the reactor building containment (necessitating a halt of work while a study of the voids was undertaken by the applicant); (d) additional analysis of accidents to implement new NRC criteria; (e) delays in procurement of safety-related components and materials, which had not been accounted for in the initial time estimated for completion of construction; and (f) additional seismic analysis due to a change in the design of the foundation for the control l
building. South Carolina Gas and Electric Co. (Virgil C. Summer Nuclear Station), 44 Fed. R_eg. 7849 (February 2, 1979).
e
. In the LaSalle case, two separate construction permit extensions were granted on the basis of labor strikes resulting in work stoppage, insufficient craft manpower, modifications in the supression pool as a result of newly prescribed NRC Staff criteria, and additional requirements imposed by the Staff in the areas of fire protection and testing.
Extensions were granted for periods of 15 months and 22 months (Unit 1), and 15 months and 19 months (Unit 2).
Commonwealth Edison Co. (La Salle County Station, Units 1 and 2); 43 Fed. Reg. 25504 (June 13,1978); 45 Fed. Reg. 5847 (January 24,1980).
From the above cases, which are representative (but by no means exhaustive) of construction permit extensions which have been granted by the NRC Staff for good cause shown, it should be apparent that many of the reasons prof-fered by applicants are factors which were either indirectly within the con-trol of the applicants, or which could have been anticipated by applicants as foreseeable causes of delay during the construction phase. An examination of relevant prior NRC practice makes it clear that factors constituting good cause need not be solely matters beyond the control of the applicant under 10 C.F.R. t 50.55(b).
CONCLUSION For the reasons above cited, the NRC Staff position is that matters consti-tuting " good cause" for extension of a construction permit need not be be-yond the control of the permit holder.
Respectfully su
- itted, Wn 1
j m-I Richard
. Goddard Counsel or NRC Staff Dated at Bethesda, Maryland this lith day of April,1980.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NORTHERN INDIANA PUBLIC Docket No. 50-367 SERVICE COMPANY (Construction Permit Extension)
(Bailly Generating Station,
)
Nuclear-1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF POSITION ON WHETHER GOOD CAUSE FOR CONSTRUCTION PERMIT EXTENSION MUST NECESSARILY BE "BEYOND THE CONTROL 0F THE PERMIT HOLDER," UNDER 10 C.F.R. 5 50.55(b)" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the i
Nuclear Regulatory Commission's internal mail system, this lith day of April, 1980.
- Herbert Grossman, Esq., Chairman Edward W. Osann, Jr., Esq.
Atomic Safety and Licensing Board Panel Suite 4600 U.S. Nuclear Regulatory Commission One IBM Plaza Washington, D.C.
20555 Chicago, Illinois 60611
- Dr. Richard F. Cole Robert L. Graham, Esq.
Atomic Safety and Licensing Board Panel One IBM Plaza U.S. Nuclear Regulatory Comission 44th Floor Washington, D.C.
20555 Chicago, Illinois 60611
- Mr. Glenn 0. Bright George and Anna Grabowski Atomic Safety and Licensing Board Panel 7413 W. 136th Lane U.S. Nuclear Regulatory Commission Cedar Lake, Indiana 46303 Washington, D.C.
20555 Dr. George Schultz Kathleen H. Shea, Esq.
110 Californid Street Lowenstein, Newman, Reis, Axelrad Michigan City, Indiana 46360 and Toll i
1025 Connecticut Avenue, N.W.
Richard L. Robbins, Esq.
Washingtgn, D.C.
20036 Lake Michiga'n Federation 53 West Jackson Boulevard g/0BPIobert J. Vollen, Esq.
Chicago, Illinois 60604 109 North Dearborn Street i
Chicago, Illinois 60602
. John Van Vranken, Esq., Chief
- Atomic Safety and Licensing Northern Region Board Panel Environmental Control Division U.S. Nuclear Regulatory Commission 188 West Randolph Street Washington, D.C.,20555 Chicago, Illinois 60601
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Clifford Mezo, Acting President
- Docketing and Service Section Local 1010 Office of the Secretary United Steelworkers of America U.S. Nuclear Regulatory Commission 3703 Euclid Avenue Washington, D.C.
20555 East Chicago, Indiana 46312 William H. Eichhorn, Esq.
Eichhorn, Morrow & Eichhorn 5243 Hohman Avenue Hammond, Indiana 46320 Diane B. Cohn, Esq.
Suite 700 2000 P Street, N.W.
Washington, D.C.
20036 Stephen Laudig, Esq.
445 N. Pennsylvania Street Indianapolis, Indiana 46204 (6. % an Richard J. Goddard Counsel Tor NRC Staff
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