ML20032A505
| ML20032A505 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/28/1981 |
| From: | Rothschild M, Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8110300254 | |
| Download: ML20032A505 (12) | |
Text
10/28/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE AT0filC SAFETY AND LICENSING BOARD
. In the flatter of
)
TEXAS UTILITIES GENERATING COMPANY, Docket Nos. 50-44 6
' (Comanche Peak Steam Electric
)
(
Station, Units 1 and 2)
)
\\,
g% f p
,h NRC STAFF'S MOTION FOR RECONSIDERATION 0F MEMORANDUM AND ORDER DATED q,,//
xx' OCTOBER 23, 1981 CONCERNING CONTENTIONS 22 AND E
On October 23, 1981, the Atomic Safety and Licensing Board
(" Licensing Board ') issued its Memorandum and Order (" Order") in which it, inter alia, denied (a) " CASE's Motion To Postpone Consideration of Contention 22 (" CASE's Motion") and (b) " Joint Motion of Applicants and CASE to Defer Consideration of Contention 25" (" Joint Motion").
For the reasons set forth below, the NRC Staff (" Staff") requests, pursuant to 10 C.F.R. Q 2.730, that the Licensing Board reconsider its Order insofar as it denied those two motions and recommends that litigation of Conten-tions 22 and 25 be deferred, at least until such time as the remaining contentions in this proceeding are scheduled for hearing.E l
'1/
By telephone communication of October 23, 1981, before the Staff had had an opportunity to file responses to CASE's Motion and the Joint Motion, the Staff was infonned that the Licensing Board was about to issue the instant Order.
See Order, at 5.
This motion for reco.-
l sideraticn is filed pursuant to the Licensing Board's Order (see id.); had the Staff been able to respond to CASE's' Motion and the r
'J61nt Motion before the subject Order was issued, the Staff would p$f )
have supported both motions for the reasons set forth herein.
I D M AYED ORIGINAL l
hOgo Obo 5
Certified By PDR.
t g
b6)
Contention 22-In its Order, the Licensing Board denied CASE's Motion for deferral of Contention 22 for the same reasons it denied the Joint tiotion.
(Order, at 5).
Although the Staff agrees with the Licensing Board that "it is important for all contested operating license proceedings to go to evider.tiary hearings promptly and expeditiously" (Order, at 5-6), the Staff does not believe that it is either prudent or necessary to include Contention 22 as an _ issue to be considered at the hearing scheduled to start on December 2, 1981.
First, new information has come to the attention of the Staff indicating that Applicants have further revised the estimated date for completion of Unit 1 of the Comanche Peak facility from June 1982 until June 1983.2_/ In view of this revised construction completion date, it appears that the four-month delay cited in the eleventh NRC Monthly Status Report to Congress (Bevill Report) between construction completion and issuance of an operating license has been eliminated. The revised construction completion date not only elimi-nates the slippage which has been cited by the Licensing Board as a
-2/
On October 26, 1981, Texas Utilities Generating Company (TUGCO) announced further delays in the completion of construction of the Comanche Peak facility.
Based on this new information, in a filing dated October 27, 1981, Applicants advised the Licensing Board that its estimated date for completion of Unit I has been delayed from June 1982 until June 1983. A telex copy of TUGC0's October 26, 1981 announcement is included as Attachment 1 to this Motion. This infor-mation supersedes a previous letter dated September 4,1981 from H. C.
Schmidt of TUGC0 to Robert L. Tedesco, Assistant Director of NRC's Division of Licensing indicating that completion of Unit 1 prior to June 1982 is not likely.
A copy of the September 4,1981 letter is included as Attachment 2 to this motion.
~..-
t O
factor in its scheduling actions,3/ but also obviates the need to expedite consideration of an issue which the parties agree should be deferred.M In addition, the Staff has not completed its review of the Applicants' emergency plans as they relate to Contention 22 and does not believe that this. issue is ripe for hearing.
In Supplement No. I to the Staff's
" Safety Evaluation Report related to the-operation of.Comanch'e Peak Steam Electric Station, Units 1 and 2," (NUREG-0797, Supplemen No.1, October 1981) (SSER), the. Staff stated (at p. 13-3):
13.3 Emergency Planning The staff has reviewed the applicant's response dated August 24, 1981, to the list of deficiencies issued by the staff based on the review of the applicant's Emergency Plan, Revision 1.
The staff has determined that a number of ques-tions remain unresolved based on the applicant's responses and has scheduled a meeting with the applicant to clarify the scope and. depth of information required from the appli-cant before the staff can make a favorable finding on the adequacy of.the plan. The staff will complete its review of the applicant's Emergency Plan under TMI Action Plan Item III.A.2 (see Section 22).
l Until the Staff has completed its review of the emergency plans as they relate to Contention 22, the Staff cannot take a position on the merits I
of Contention 22.
In these circumstances, the Staff does not believe j
that the Licensing Board should include Contention 22 at the hearing commencing December 2, 1981.
3/
The Licensing Board noted in its " Order" of October 20, 1981 that:
"The Board's prior orders indicate that it is attempting to' expedite the hearing schedules in order to alleviate the slippage between the completion of construction and the issuance of an operating license."
Id. at 2.
j
-4/
On October 27, 1981, Applicants file <i a motion for reconsideration of the Licensing Board's ruling denying CASE's Motion for deferral l
of Contention 22 (and 25) and a Motion to postpone the hearing.
l
. -. - -,.. _,. ~
H
, ~
Contention 25 The Staff believes that the deferral of Contention 25 is appro-priate because (a) rulemaking is pending in _ this area,5/ the outcome of:
which may eliminate or'significantly alter the issues to be litigated in connection with the contention: (b) the Commission has indicated that the final rule, when adopted, "will be applied.to ongoing licensing proceedings now pending and to issues or contentions therein"O; (c) a deferral would avoid the unnecessary and premature expenditure of resources and effort by the parties and the Licensing Board; (d) only a temporary deferral of the contention has been requested; (e) the proceeding no longer appears to be "irpacted" (see discussion supra, at 2-3); and (f) if the rulemaking is not completed by the time the remaining contentions in this proceeding are scheduled for hearing, Contention 25 may then be scheduled for hearing along with those other contentions with no prejudice resulting to the parties.E In its Order, the Licensing Board correctly recognized tgat the Commission "has tentatively concluded that the present financial qualifi-cations review can appropriately be eliminated for electric utility appli-cants" and that an alternative rule, at least for the interim, is being considered which would require only an examination of an applicant's j
ability to finance "the permanent shutdown and maintenance of the facility in a safe condition" (Order, at 2, 4). The Licensing Board correctly
-5/
Proposed rule, " Financial Qualifications; Domestic Licensing of Pro-l duction and Utilization Facilities," 46 fed. Reg. 41786 (Aug.18,1981).
6f Id 46 Fed. Reg at 41789.
7/
The Staff is filing a motion for summary disposition of Contention 25.
In the event that summary disposition is granted, a deferral of the l
contention will have become unnecessary.
l I
c
^
observed, further, that ongoing proceedings in which financial qualifica-tions was an issue should continue to be litigated until a final rule has been adopted which would then be applied to such proceedings (id., at 5).
The Staff does not differ with the Licensing Board in these respects.
The requested deferral did not seek.to eliminate Contention 25 from litigation or to postpone such litigation for an indefinite and lengthy period.
Rather, only a deferral for a few months was sought, which would =
remove the contention "from litigation at the hearings scheduled to commence on December 2,1981" (Joint Motion, at 2). The Joint Motion. noted that the rulemaking appears to be "on a schedule for completion by the end of this year" (id.) and further observed that if the rulemaking "is not
- comp _leted in a timely fashion," the contention might then be rescheduled for hearing without awaiting the completion of rulemaking (id., at 6, 7).
In view of the fact that the great majority of the issues to be liti-gated in this proceeding (7 contentions, 2 Board Questions, and possibly 8 additional sua sponte issues) have not yet been scheduled for hearing and are not expected to be heard-before February 1982,E a deferral of i
l Contention 25 until the remaining issues are scheduled for hearing will not result in delay to the proceeding or hann to the parties. On the con-l l
trary, the requested deferral will likely result in cognizable benefits to the Licensing Board and to the parties, in that (a) the issues to be litigated will have been either eliminated altogether or at least better focused and defined, (b) unnecessary expenditure of hearing time will
(
have been avoided, and (c) significant savings in time, expense and effort will have been realized.
8/
See Order, at 6.
t
The Staff notes that unless the~ rule adopted by the Commissicn altogether eliminates the financial qualifications issue from litigation in operating license proceedings, the. Licensing Board eventually will have to find compliance either with the existing rule (if the rulemaking has not concluded by the time the issue is litigated) or with any modified rule adopted by the Commission before the contention comes to hearing in this proceeding.'
In the event a hearing on the con antion is held before the rulemaking has been completed, a second hearing conceivably might be required to be held at such time as a final rule is adopted by the Commission.
' While a' deferral is desirable, the Licensing Board has correctly rejected the Applicants' and CASE's reliance upon Potomac Electric Power Co.. (Douglas. Point Nuclear Generating Station, Units 1 and 2),
ALAB-218, 8 AEC 79, 85 (1974), for the proposition that Douglas Point wculd have precluded litigation of the contention if the rulemaking had been announced before the contention.was admitted (Joint Motion, at 6). Thus, the Licensing Board correctly distinguished the j
Douglas Point decision as having involved a rulemaking in which the Commission expressly directed that the subject of the rulemaking should not be addressed in individual license proceedings (Order, at 3-4).
As l
noted by the Licensing Board, "[t]he instant proposed rule regarding financial qualifications review does not purport presently to bar consideration of these matters in ongoing licensing board adjudicatory proceedings"(id.,at4).
In addition, it is important to note that the contention in Douglas Point concerned the uranium fuel cycle, an l
4 area which was not already regulated by the Commtssion and which was then the subject of rulemaking.E The Appeal Board did not state that where existing regulations.are already in place, those regulations
-should be disregarded by the applicant and the Licensing Board upon the commencement of any related rulemaking. On the contrary, the mere fact that a rulemaking proceeding has commenced does not lessen an appli-cant's obligation to comply with existing regulatory requirements or the Licensing Board's duty to make a finding as to such compliance upon any properly admitted contention, absent express direction to the contrary bytheCommission.N 9]
The Appeal Board's decision in Douglas Point appears to be somewhat inconsistent with a previous statement by the Commission, to the extent that it relies upon the line of cases commencing with Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-56, 4 AEC 930 (1972).
See " Environmental Effects of the Uranium Fuel Cycle," 39 Fed. _R_eg.14188 ( April 22,1974).
e
--10/ A consistent result was reached in the Appeal Board's recent deci-sion in Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655,.14 NRC (sTip op., Oct. 7, 1981).
There, the Licensing Board determined that the facility complied with the existing hydrogen control regulation (9 50.44) and, further, determined that the facility could safely handle the larger amount of hydrogen generated in the TMI-2 accident--an issue which is being addressed generically by the Commission in rulemaking.
(LBP-81-12, 13 NRC 557, 635-36 (May 15, 1981). Upon sua sponte review, the Appeal Board noted that it "would ordinarTTf expect a more substantial treatment of this matter than that set forth in I
l the initial decision" (ALAB-655, supra, slip op, at 31), but, I
citing Douglas Point, it concluded that since the issue of hydrogen generation following a TMI-2 type of event is the subject of rule-I making by the Commission, it would defer the issue "to the Commis-sion's consideration in the ongoing rulemaking and refrain from any explicit comment or judgment on this portion of the [Licensirg]
Board's decision" (id., at.31-32; footnote omitted). While the Appeal Board deferred to the Commission as to the issue in rule-i making (large amounts of hydrogen), it did not disturb or comment upon that portion of the Licensing Board's decision which found compliance with the existing hydrogen cot. trol regulation.
l
8-s Conclusion For the reasons set forth above, the Staff requests that the Licensing Board reconsider its Memorandum-and Order dated October 23, 1981, and recommends that litigation of Contentions 22 and 25 be deferred, at least until such time as -the remaining contentions.in this proceeding are scheduled for hearing.
Respectfully submitted,
& %~ A%au:ta Marjorie Ulman Rothschild Counsel for NRC Staff 1.,
d Sherwin E. Turk Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of October, 1981
[*,
ATTACliMENT 1 L
)1R r-
! Og DM :
- f. {.
HNtDI
!I I
FOR 9:00 a.m.
RELEASE DALLAS, TEXAS - OCTOBER 26, 1981 - The Texas Utilities Company cnnounced today, as a result of an annual review of the Company's l
construction program, that the estimated completion dates of the i
Comanche Peak nuclear plant near Glen Rose have been revised to
' i 1984 for Unit 1 and 1985 for Unit 2.
The estimated cost of the t
Plant' has also been changed to $3.44 billion.
The new cost estimate is an increase from the $2.235 billion estimate made in 1980, according to T.
L. Austin, Jr., chairman of the board of Texas Utilities.
f "Even though the cost estimate has increased substantially since announced in the early 1970s, the electricity produced by this plant will continue to be substantially less than electricity produced by either oil or natural gas,"
Austin said.
This is because oil and natural gas prices have increased at an even more rapid rate than has the cost of building the nuclear plant which will use a much lower cost fuel that also is a much more stable priced fuel.
" Building a nuclear power plant is an extremely complex job l
l today because it changes so much from start to finish.
Even' with a competent and committed project management and construction I
group -- which we have -- building a nuclear plant has many moving targets.
-more-a y,,.
,.u
-n---,, - - - -,-p
~y-.,.., -.,.,-.- -
ATTArHMFNT 1 I
ll I
TEXAS UTILITIES COMPANY - NEWS RELEASE - 9: 00 A.M. - OCTOBER 26,1981 - PAG
~
?
j
% primary reasons for the revised cost of Comanche Peak i
j ares continually changing interpretations of regulations; con-tinuing design changea as a result thereof; and the extended time I
i i
period to counpletion," Austin said.
He stated that the additional interest cost on borrowed construction m ney caused by the delay is
'i a major contributing factor and also cautioned that both the time-i i
table and cost estimates could change again in the future.
Cosaanche Peak is jointly owned by" Dallas Power & Light Company, Texas Electric Service Company, Texas Power & Light Company, the
~ Texas Municipal Power Agency, Brazos Electric Power Cooperative, Inc., and Tex-La Electric Cooperative of Texas, Inc.
Combined, the Owners sen e a population of more than 4. 5 millio.
people covering about one-third of the area.and population of Texas.
end-i e
e er 9e oer eo t
to ro 9
09 99 00**
ATTACHMENT 2 TEXAS LTILITIES SERVICES INC.
Jirn Isl4YA% Ttn* ER + D %LLAN. TEX Af6 7.42f18 September.4,1981 Mr. Robert L. Tedesco Assistant Director for Licensing Division of Licensing.
United States Nuclear Regulatory Commission Washington, D.C.
20555
Dear Mr. Tedesco:
This is to inform you that our in-progress review of Comanche Peak Steam Electric Station construction thus far indicates that the completion of Unit No. 1 prior to June 1982 is not likely.
We anticipate, as our construction review progresses, that a re-vised est. mated completion date for Unit I will be determined within the next several months.
Sincerely, b
H. C. Schmidt Manager, Nuclear Services HCS:kp l
i
\\
Nh"
-B109100127-410904-.
run eivCC", 0"00011=
A 2DR
=
UNITEDST'ATESl0F-AMERICA
. NUCLEAR REGULATORY COMMISSION:
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD LIn the Matter of
' TEXAS UTILITIES GENERATING COMPANY, ET AL.)
Docket Nos. 50-445 c
J
).
50-446 (Comanche Peak Steam Electric Station,'
)~
Units 1 and 2)
)
CERTIFICATE 0F' SERVICE I hereby certify that' copies of "NRC STAFF'S MOTION FOR RECONSIDERATION OF' MEMORANDUM AND.0RDER DATED OCTOBER 23, 1981 CONCERNING. CONTENTIONS 22 AND
'25" in the above-captioned ~ proceeding have been served'on the following by deposit in the United States mail,'first class, or through deposit in the Nuclear Regulatory Commission's internal mail system (*).or by hand delivery (**)
.or by express mail (***), this 28th day of October, 1981.
Marshall E.- Miller, Etq. Chairman **
Mrs. Juanita Ellis ***
Administrative Judge.
President, CASE
+
Atomic' Safety and Licensing Board 1426 South Polk Street U.S. Nuclear Regulatory Commission -
Dallas, TX 75224 Washington, DC 20555 David J..Preister, Esq. ***
I Dr.- kenneth A. McCollom,L Administrative-Assistant Attorney General
-Judge.***
Environmental Protection Division Atomic Saftty aad Licensing Board P;0. Box 12548, Capital Station 1
Dean, Divi',lon of Engineering.
Austin, TX 78711 A chitecture and lechnology-Oklahoma State University Mr. Richard Focke *** -
Stillwater, Oklahoma 74074 1668-B Carter Jrive i
Arlington, TX 76010
'Dr. Richard Cole, Administrative Judge **
Atomic Safety and Licensing Board J. Marshall Gilmore, Esq. ***
U.S. Nuclear Regulatory Commission 1065 W. Pipeline Road Washington, DC 2055$
Hurst, Texas 76053 Nicholas S. Reynolds Esq.
Debevoise & Liberman 1200 17th Street, N.W.
Washington, DC 20036 w
e e-e%.-ie-
--e
,=-....,w---,---
w,,,-#.
..--,-v e.,,.
,--r
.~.w-,
w
=.
o Atomic Safety and Licensitig Board Docketing and Service Section (1)*
Panel *
. Office of the Secretary U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Appeal Panel (5)*
.U.S. Nuclear Regulatory Comission Washington, DC 20555
$1cA r a l a v a n Gofksc u ls f
Marjorie Ulman Rothschild Counsel for NRC Staff 4
O l
t
~
.