ML20034H846
| ML20034H846 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 03/12/1993 |
| From: | Kohn M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#193-13720 CPA, NUDOCS 9303220148 | |
| Download: ML20034H846 (12) | |
Text
' i4 c. R - 1' 2' --l 9 3 FRI-16: 2O P. O 2-l 6 13b UNITED DTATES OF AMERICA pl 50 NUCLEAR REGULATORY COMMISSIOND.,
,q, n
)
In the Matter of
)
)
TEXAS UTILITIES ELECTRIC CO.,
) Docket No. 50-446-CPA et al.,
) (Construction Permit Amendment)
)
(Comanche Peak Steam Electric
)
Station, Unit 2)
)
)
PETITIONERS: RESPONSE TO THE COMMISSION'S ORDER DATED MARCH 5, 1993 INTRODUCTION Petitioners B.
Irene Orr and D.
I Orr, hereby file their response to the Nuclear Regulatory Commission
(" Commission")-
Order, dated March 5, 1993.
As demonstrated below, a decision.on the merits of the issues relevant to the instant natter must go forward.
More importantly, Petitioners will show that the Commission may not issue a full power license to Texas' Utilities Electric Company ("TUEC") until such-time as the issues presented in the instant case are resolved.
ARGUMENT A.
The Commission May not Issue a Full _ Power License Until Petitioners Exhaust their Right to a Hearing.
On March 5, 1993, the Commission asked the parties to address the iscue of whether the status of construction of~CPSES Unit 2 mooted the need for the Commission to rule in the instant matter.
In eccence, the Commission seeks to. determine-whether the CPA proceedings may be dismissed as moot regardless of whether Petitioners have exhausted their right to challenge 9303220148 930312 PDR ADOCK 05000446 O
n*na 12-93 FRI 16-20 P.03 i
w whether TUEC's acccrted " good cause" for the delay in construction'of the CPSES Unit 2.
1.
Tho' Commission Cannot Iscue an Operating Licence Until
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Petitioners Challenge of TUEC's " Good Cause" for the~
Amendment to the Construction Permit are_Adiudicated i
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Purcuant to 10 C.F.R.
SS 50.23 and 50.56, in order for TUEC to obtain a valid operating permit, the Commission must convert the very construction permit challenged by Pctitioners into the' operating licence.
But, before the conversion of the construction permit may occur, TUEC must demonstrate that it did not forfeit its right to construct and, as such, its right to obtain an operating license for CPSES Unit 2.
Under Commission regulations TUEC forfeited its construction l
permit af it cannot establish good cause for the delay in construction:
If the proposed construction or modification of the facility is not completed by the last completion date, i
the permit shall expire and all rights thereunder shall be forfeited: orovided, however, That upon good cause shown the Commission will extend the completion date for a reasonable period of time...
10 C.F.R. 550.55 (b) (emphasis in original).
In this respect, in Brooks v.
Atemic Enerov-comm_innion, 476 F.2d 924, 925, fn. 1 (D.C. Cir.1973), the Court stated:."The Cornission's own regulations provide that all rights under the construction permit shall be forfeited if the facility is not completed by the latest completion date unless the Commission i
extends the completion date 'upon good cause shown. '") (quoting 10 l
C.F.R.
5 50.55).
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Thus, pursuant to 10 C.F.R. 550.55(b), unless TUEC can establish " good cause," it forfeited the right to convert its.
construction permit.
As such, the controlling issue is.not l
whether TUEC has completed construction.
Rather, the issue which must be confronted is whether petitioners' timely request for a hearing forecloses the commission's ability to issue a valid operating license before Petitioners' have exhausted.their right to a hearing.
This issue turns on the rights granted Petitions I
pursuant to section 189(a) (1) of the Atomic Energy Act ("AEA").'
The rights af forded Petitioners under Section 189(a) (1) of the AEA to challenge a utilities ability to amend the construction completion date contained in a construction permit were considered in Brooke. Thore the court determined that 5 189 (a) (1) " require [d] that the Commission grant a hearing upon the request of any interested person in a proceeding amending a Section 189 (a) (1) of the AEA provides, in relevant part, that:
In any proceeding under this Act, for the.
amending of any.
construction permit,
. th2 Commission shall crant'a hearina upon the recuest of any per_ son whose___ interest nav be_affected by the s
proceedina, and shall admit such person as a party'to such proceeding.
In cases where such a construction permit has been issued following the holding of such a hearing, the Commission may, in the absence of a reauest th_er_efor by any person whose inter _est wav__be affected_, issue an.
. amondment to a construction permit...
AEA Section 189 (a) (1), 42 U.S.C. 52239 (a) (1) (emphasis added) 3 1
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K construction permit."
Brooks v. Atomic-Enerav Commission, 476 F.2d 924,-926 (D.C. Cir. 1973).
Ac the petitioner in Brooks was entitled to a hearing to challenge the asserted " good cause" for the amendment to a
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construction permit, co too Petitionerc here maintain a statutory-right to a hearing on the issue of " good cause."
If TUEC cannot-cotablish " good caucc," then, pursuant to 10 C.F.R. 5 50.55(b),
it nust forfeit its right to convert the construction permit.to an operating license.
As the Brooks Court determined, the underlying Hvalidity" of a construction permit remains "cubject to the outcome" of the hearing on the issue of " good cause" for the delay in construction.
Brooks, supra, at p.
928.
Because the it is the-underlying validity of.TUEC's Unit 2 construction-permit which is-challenged, the instant matter is not moot.
To the contrary, the Commission should have prohibited TUEC from completing construction on Unit 2 once Petitioners' filed a timely request for hearing.
1 2.
The Commission Improperly.AllowedfTUEC to Continue-Constructing Unit 2 and the Commission is Prohibited from Granting a Full Power License until such Time as Petitioners Exhaust their Richt-to a Hearina The underlying facts of the instant case'are that on July 27, 1992, Petitioners filed a timely request for a hearing on the
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issue of whether TUEC can establish good cause for the delayfin construction of Unit 2.
After Petitioners sought a hearing, NRC Staff, on July 28, 1992, determined that TUEC had " good cause" for the delay in construction and granted TUEC's request-for an 4
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t extension of the construction completion date of Unit 2.
The q
apparent basis for Staff's action was a no significant environmental impact finding Staff issued on June 23, 1992.
1 This procedural history presents two significant questions of law.
Firct, whether Staff's "no significant hazards" f
determination provides sufficient justification for che granting i
of the amendment to the conctruction permit when a timely request
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for a hearing challenging " good cause" is pending with the i
Commission.
Second, whether petitioners remain entitled to a hearing on the issue of " good cauce" before TUEC can receive a l
full power license.
As demonstrated below, once Petitioners f
r filed a timely request for a hearing, the AEA prohibits the t
granting of the amendment request regardloco of a no significant i
hazards determination, and the amendment may not be acted upon.by.
the Commission until Petitioners' right.to a hoaring is l
exhausted.
I In the Brooks caso, the court concidered whether, when enacting 5189 (a) (1), Congress intended to " dispense with hearings in construction permit amendment proceedings" where the Commission issues a "no significant hazards" determination.
t Brooks, supra, at p. 926.
The Brooks Court held that "the legislative history of the 1962 amendments to 5189 (a) (1) indicates that a "no significant hazards" determination does not control whether a party is entitled to a hearing on a request to.
amend a construction permit.
Rather, once an interested party makes a timely " request for a hearing,"
that party is entitled i
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to a hearing irrespective of whether a "no significant hazards" determination by the Commission has been issued.
Brooks, supra, at 927.2 More importantly, the Brooks Court determined that "[t]he
'h continuing validity of the amendment of the construction permit" was " subject to the outcome of a hearing on this issue."
Id., at p.
928.
l As such, the Commission improperly granted TUEC's conctruction permit amendment without deciding the issue of whether Petitioners were entitled to a hearing.3
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2 The Brooks holding was reaffirmed in San Luis__obisno Mothers for Peace v. N.R.C.,
751 F.2d 1267, 1314 (D.C. Cir.
1984).
3 The holding in Brooks is further supported by the reasoning articulated in Sholly v. NRC, 651 F.2d 780, 787 (D.C.
Cir. 1980), rehearina en banc denied, 651 F.2d 792 (1981), cert.
aranted, 451 U.S.
1016 (1981), vacated and remanded,-459 U.S.
1 i
1194, vacated and remAD ed_As noot, 706 F.2d 1229-(D.C. Cir.
d 1983).In Sho11v, the Court determined that under the pre-amended Section 189(a) provision, the NRC could not make an operating license amendment effective where there was a hearing request pending regardless of a no significance hazards determination.
The Sholly case was vacated as moot in response to'the "Sholly.
amendment" to Section 189(a), which authorized the Commission to make an amendment to an operatina licenses "immediately effective" upon a "no significant hazards" determina ion while at the same time preserving the right to a hearing regardless of whether the issue had essential been rendered moot.
See Section 189 (a) (2) ( A).
Nonetheless, Congress continued to exempt construction permit amendment proceedings.from the post-implementation hearing process governing operating license proceedings.
Indeed, there is nothing in the legislative history to suggest that congress intended to allow the Commission to make a construction permits amendment immed.iately effective until after the hearing process is complete.
But, even if the Commission construed the "Sho11y Amendment". to pertain to construction permit amendment proceedings, the Commission could not dismiss the instant case as moot because the legislative (continued...)
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In sum, TUEC's ability to obtain an operating license for 5
i Unit 2 requires that the p_onstru_clipA.p_gymit for that unit. may j
legally be converted in accordance with to 10 C.F.R.
SS 50.23, 50.56 and 50.57.
Because Petitioners have challenged the i
underlying validity of the construction permit, and pursuant to:
10 C.F.R. 550.55(b), assert that TUEC is required to forfeit all rights derived from its construction permit, it would be an abuse of discretion and a denial of Petitioners' due process rights for the Commission to dismiss the instant matter as moot.
B.
The Reasoning Articulated in Sholly v.
NRC Controls.the Issue of Hootness.
In Shelly v. NRC, 651 F.2d 780 (D.C. Cir. 1980), the Court j
was faced with the situation where the Commission's granting of an amendment foreclosed a petitioner's right to a hearing.
i Although the Sholly decision was vacated in response to Congress' amendment to the AEA, the reasoning of ghol_1v with respect to the
{
issue of mootness controls here.
As the Sholly Court determined, the commission's action of making an amendment to a license o
effective immediately will often deny a petitioner judicial I
review-of the Commission's action.
The Sholly Court noted that 1
it is unreasonable for the Government to take the position that, i
i 3(... continued) history governing the Sholly Amendment makes clear that " Congress intended that hearings be held if properly requested, even after-irreversible actions had been taken upon a finding of no significant hazards consideration."
Mississippi Power and Licht Co. (Grand Gulf Nuclear Station, Unit 1) LBP 84-23, 19 NRC 1412 (1984).
Thus, if the Sholly Amendment related to construction permit amendment proceedings, then, under no circumstance, could the instant proceedings be construed as moot.
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in order to seek' judicial review of a license amendment, 1
a 1
petition must race-to the courthouse before the NRC takes _
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-irreversible ~ action.
Sholly, at p. 784, fn.14._
The Court i
concluded that "becauce a petitioner willinot receive complete judicial re" jew of a claim that very voll mayfbe meritorious, the 1
i claim could still evade review.
Id.
As in Sho11_y, the issue at!
l stake is "whether the NRC will continue its policy of' making 1
immediately offcctivo licence amendment without holding a i
hearing, even though petitioners request one, whenever the NRC I
finds that the amendment involves 'no significant hazards l
consideration,'" and as such, the conditions for avoiding i
nare met."
Id., at_p. 785.
.j dismiccal on groundo of mootnocc C.
The Underlying Reason Petitioners seek to Challenge TUEC's-l Good Cause for the Delay in construction Demonstrate that the Instant Case is Not Moot.
j The essence of the instant case boils'down to a. legal 1
qucction, whether Petitioners have sufficiently pled facts to.
i support the admission of a contention in the construction permit amendnent proceeding.
Tht contention Petitioners-seek-to admit is whether:
The delay of construction of Unit 2 was caused by Applicant's intentional-conduct, which had no valid purpose and was the result of corporate policies'which have not been discarded or repudiated by Applicant.
l To demonstrate a sufficient basis for the admission of this i
contention, Petitioners, inter alla, documented TUEC's practice-i of paying " hush money" to third parties lin order to secret
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information from the Commission and Petitioners and documented th&t TUEC had orchestrated and carried out a plan'to secret-from fl 8
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c-an ASLB all information obtained by its former minority owners H
4 which demonstrated that TUEC repeatedly misled. the-ASLB and engaged in improper conduct that resulted in the delay-in construction of the entire CPSES.
All said and done, the allegations translate into a direct F
challenge of TUEC character, competence, integrity and commitment to licensing requirements.
In this respect, Petitioners assert that TUEC did and does not have the requisite character and.
competence to construction Unit 2 and that as a result of this deficiency, it was unable to complete construction in accordance with the terms of its construction permit, and that because TUEC still suffers from this deficiency, it cannot establish good cause to amend its construction permit completion date.
10 C.F.R. 950.57(1) requires that before a construction permit may be converted, TUEC must-demonstrate that'it completed construction in accordance with the provisions contained in the AEA and in accordance with the roles and regulations of the Commission.'
If, as Petitioners contend, TUEC-does not In order to convert the construction permit,.TUEC is legally required to have the requisite character and competence to operate a nuclear power plant.
Petitioners' challenge to TUEC's character and competence is a legal impediment to the Commission's ability to convert the operating license.
The Commission has addressed the issue of character'and competence in_
Metropolitan Edison Co.__
(Three Mile Island Nuclear Station, Unit i
1), CLI-85-9, 21 NRC 1118, 1136-37 (1985) ; Houston Lichtinaiand Power (South Texas Project, Units 1 and 2), CLI-80-32, 12 NRC 281, 291 (1980).
In South Texas, 12 NRC 291, the Commission stated:
In large part, decisions about licenses are predictive in nature, and the Commission (continued...)
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1 Leurrently have the character, competence, integrity,-and ability l
to operate Unit 2, that defect could disqualify-TUEC fron-converting ~its construction permit to a full power licensa.
l Because the underlying clain in the instant case is determinative on TUEC's ability to convert its construction permit, the instant matter is anything but moot.
The Commission 1
must consider Petitioners right to a hearing before it may' grant TUEC a full power license.
Moreover, the concept of due process makes it inconcistent i
for TUIC and NRC Staff to reach a final factual determination on the issue of " good cause" for the delay in construction without affording petitioners a right to a hearing on this issue.
Indeed, Petitioner's appeal has been pending cinco Deccmber of-1992.
The Commission cannot close its eyes to the issues raised I
by Petitioners and take unilateral action, the consequence of which will fundamentally deny petitioners' statutory right to a hearing.
'(... continued) cannot ignore abdication of knowledge by a license applicant when it is called upon to-decide if a license for a nur. lear facility
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should be granted.
i We-believe that the above issues relating to technical competence and to character permeate the pleadings filed by Citizens.
They do deserve a full adjudicatory hearing, as they will no doubt get in'the operating license proceedings, and they do deserve expeditious treatment'because they could prove disqualifying.
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conclusion For the reasons set forth above, the instant matter is not-noot and the-Commission should expeditiously render a-decision on-the merits of this proceeding.
Respectfully submitted, Michael D.
Kohn Kohn, Kohn and Colapinto, P.C.
517 Florida' Avenue, N.W.
Washington, D.C.
20001 (202) 234-_4663 Attorneys for Petitioners Dated:
March 12, 1993 t
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UNITED STATES OF AMERICA
~
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL, Og g p 4 ".34 In the Matter of
)
50-446-CPA
)
Docket Nov TEXAS UTILITIES ELECTRIC COMPANY,
)
ASLBP NO+.^92-66B'612CPA
)
-(Construction" Permit (Comanche Peak Steam Electric
)
. Amendment)
Station, Unit 2)
)
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of PETITIONERS' RESPONSE TO THE COMMISSION'S ORDER DATED MARCH 5, 1993 was served upon the following persons by deposit in the United States-nail (and~also as indicated below), postage prepaid and properly addressed, on the date shown below:
office of Commission Appellato Adjudication-U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
-* Office of the Secretary, (original and two copies)
U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
- George Edgar, Esq.
Newman & Holtzinger, P.C.
1615 L Street, N.W.,
Suite 1000 Washington, D.C.
20036
- Janice E. Moore, Esq.
Nuclear Regulatory Commission office of the General Counsel Washington, D.C.
20555 R. Micky Dow Department 368 P.O.
Box 19400 Austin, TX 78760-9400 Dated:
March 12, 1993 By:
Michael D.
Kohn
- Also by Facsimile