ML20127G804
| ML20127G804 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 01/15/1993 |
| From: | Marian Zobler NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| CON-#193-13541 CPA, NUDOCS 9301220079 | |
| Download: ML20127G804 (26) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '93 JAN 15 P3 :35 l IEFOltE Tile COMMISSION . i. .,
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In the Matter of ) Docket No. 50 446 CPA
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TEXAS U'11LITIES IILECTRIC ) Construction Permit Amendment COMPANY )
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(Comanche Peak Steam Electric )
Station, Unit 2) )
NRC STAFF RESPONSl! TO APPEAL OF LICENSING BOARD'S DECISION Dl!NYING PETITION FOR LEAVE TO INTERVENE AND >
REQUEST FOR llEARING FILED llY D. IRENE ORR AND D.I. ORR Marian L. Zobler Counsel for NRC Staff
-January 15, 1993-4 f9301220079 DR 930115
] ADOCK 05000446 PDR jl
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i UNITED STATES OF Ah1 ERICA NUCLEAR REGULATORY COhth11SSION DEFORE THE COhihilSSION l
-I In the hiatter of ) Docket No. 50-446-CPA !'
)
TEXAS UTILITIES ELECTRIC ) Construction Permit Amendment COhiPANY )
) .
(Comanche Peak Steam Electric )
Station, Unit 2) )
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NRC STAFF RESPONSE TO APPEAL OF LICENSING BOARD'S DECISION DENYING PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR llEARING FILED BY 11. IRENE ORR AND D.I. ORR 4,
hiarian L. Zobler Counsel for NRC Staff .
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knuary 15, 1993 i
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TAllLE OF CON'l ENTS ;
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TAllLE OF AUT1{0RITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii :
I NTR O D U CTI ON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 BACKGROUND ....................................2 DISCUSSION......................................4
(
I. Legal Standards For the Appeal of a :
Licensing Board's Decision Denying the Admission of a Contention in A Construction Permit Extension Proceeding ....................4
- 11. The lloard Appropriately Considered the Nondisclosure /"liush Money-
A g ree m e n t s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 i 111. The lloard Correctly Declined to Consider Two Lengthy Documents Referenced in Petitioners' Supplement . . . . . . . . . . . . . . . . 9 IV. The Board Correctly Determined that the Minority Owner Settlement Agreements Did Not Provide A Factual.
11 asis for Petitioners' Contention and Correctly Denied Their Motion For Discove ry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 V. The Board Correctly Determined That Petitioners Failed to Satisfy Section 2.714(b)(2)(iii) . . . . . . . . . . . . . . . , . . . . . . . . 13 >
CONCLUSION . . . . . . . . . . . ... ......................18 >
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-ii-TAllLE OF AUTilOltlTIES higt Aln11 SIS 111bTIVE DF.CISIONS G1111t!1b3b.111:
Public Service Co. of New Harnp5 hire (Seabrook Station, Units I and 2), CLl-89-3,29 NRC 234 (1989).... . ...............................9,10 Washington Public Power Support Systern (WPPSS Nuclear Project, Nos.1 & 2) CL1-82-29, 16 NRC l221 (1982) ..... ....... ...............5 Almralil 9ard:
Consumers Power Co. (Midland Plant, Units I and 2),
ALAH-123,6 AEC 331 . ..... ........ ... ..... 12, 16 Florida Power & Light Co. (St. Lucic Nuclear '
Power Plant, Unit 1), ALAll-893, 27 NRC 627, 631 ( 19 8 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......6 Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-619, 12 NRC 558 (1980) ........................ .......5 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912 (1987) ..... ................... . 3,5,10 Union Electric Co. (Callaway Plant, Unit 1),
ALAB-740,18 NRC 343 (1983) ..........................17 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696,
, 16 NRC l245 (1982) . .... . ....... ...........11 ,
iii -
Litensintuuard:
Northern Indiana Public Service Co. (11ailly Generating Station, Nuclear 1). LDP-81 . 13 NRC 253 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . ...5 l
Te.tas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92 37, 35 NRC _, slip op. at 31-32 ,
(December 15, 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim ,
Tr.tas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2),
LilP 88-1811, 28 NRC 103 (1988) . . . . . . . . . . . . . . . . . . . . . . . . 2 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), LBP 86-36A, 24 NRC 575,580 81 (1986) . . . . . . . . . . . . . . . . . . . . . . . . ...3 STATUTES Energy Reorganization Act of 1974, as amended 42 U.S.C. % 5 851 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 BI:GULATIONS ;
10 C . F. R . $ 2.714 a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6 ,
10 C. F. R . f 2. 714 a(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 10 C. F. R . E 2. 714 (b)( 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 10 C.F.R. f 2.714(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 15 10 C. F. R. s 2.714(b)(2)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
. 10 C. F.R. f 2.714 (b)(2)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9 10 C.F.R. 6 2.714(b)(2)(iii) . . . . . . . . . . . . . ... . . . . . . . . . . . . . . passim -
10 C. F. R. f 2.714 (d )(2)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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10 C . F. R . # 5 0. 7( f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 10 C. F. R. 6 50.55(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 MJSCEI,1,ANEOUS i
51 Fed. Reg. 5 62 2 ( 19 8 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 -
53 Fed. Reg. 47888 (1988) ..............................2,6 53 Fed. Reg. 47889 (1988) ................................2 P
54 Fed. Reg. 33168 (1989) . . . . . . . . . . . . . . . . . . . . . . . . 5 , 12, 15 , 16 57 Fed. Reg. 28885 (1992) ..............,................2 57 Fed. Reg. 34323 (1992) ......................-........ 3, 6 1
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i January 15, 1993 l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1)EFORE THE COMMISSION In the Matter of ) Docket No. 50-446 CPA
)
TEXAS UTILITIES ELECTRIC ) Construction Permit Amendment COMPANY ) [
)
(Comanche Peak Steam Electric )
Station, Unit 2) )
NRC STAFF RESPONSE TO APPEAL OF LICENSING BOARD'S DECISION DENYING PETITION FOR LEAVE TO INTERVENE AND REOUEST FOR HEARING FILED BY IL IRENE ORR AND D.I. ORB INTRODUCTION On January 8,1993, B. Irene Orr and D.I. Orr, Petitioners, filed their briefir, support of their appeal (Appeal) of the December 15,1992 Atomic Safety and Licensing Board (Board) decision denying the Orrs" petition for leave to intervene and request for a hearing in the above -
captioned proceeding.2 Petitioners claim that the Board erred by not' admitting Petitioners' 1 The initial petition for leave to intervene and request for hearing was filed jointly by four petitioners, the Orrs, Joseph J. Macktal and S.M.A. Hasan. Mr. Hasan's and Mr. Macktal's request was denied for failure to demonstrate the requisite interest necessary for standing. Order--
at 8. They have not appealed the decision as it relates to them.-
8 On December 30,1992, _ Petitioners timely filed an-" Appeal of Atomic' Safety and Licensing Board Memorandum and Order" and " Petitioners' Motion for Continuance to File Appeal Brief," requesting an extension of time in which to file the required brief in support of appeal." Sec 10 C.F.R f 2.714a, Neither the Staff nor the Licensee objected to the request and the Petitioners' request was granted on December 31,1992.-
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2-contention and, accordingly, the decision must be reversed. Appeal at 17. As discussed further below, the !!oard's December 15, 1992 decision should be upheld, since it is not erroneous.
I!/KKGEQ1! Ell Construction Permit No. CPPit-127, authorizing construction of Comanche Peak Steam lilectric Station (CPSES) Unit 2, was issued by the Atomic Energy Commission on December 19, 1974, specifying a latest date for completion of construction of August 1,1983.
The construction completion date has been extended several times. The latest extension, excluding the extension which is the subject of this proceeding, was granted on November 18, 1988.' " Order lixtending 1.atest Construction Completion Date, 53 Fed. Iteg. 47888 (November 28, 1988).
On February 3.1992, as supplemented on March 16, 1992, Texas Utilities Electric Company (TU or 1.icensee) filed a request for extension of the latest construction completion date specified in the construction permit for Unit 2 to August 1,1995. The Staff issued an "liavironmental Auenment and Finding of No Significant impact" relating to the proposed extension on June 23, 1992. 57 Fed. Iteg. 28885 (June 29,1992). An " Order Extending the Latest Construction Completion Date for Unit 2" was issued on July 28,1992. 57 Fed.
3 The construction completion date was also extended for Unit 1, a currently operating unit at the same site as Unit 2, on several occasions, including on February 10,1986 and on November 18, 1988. " Order Extending Latest Construction Completion Date," 51 Fed, lleg. 5622 (February 14,1986); " Order Extending 1.atest Construction Competition Date,"
53 Fed. lleg 47889 (November 28,1988). The 1986 extension was the subject of a proceeding which was settled in July 1988. Traas Utilitics EIcc. Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LHP-88181L 28 NitC 103 (1988).
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Reg. 34323 (August 4,1992). In response to the publication of the " Environmental Assessment ;
and Finding of No Significant Impact,* the Petitioners filed " Petition to Intervene and Request .
for Hearing of 11. Irene Orr, D.I. Orr, Joseph J. hiacktal, Jr., and S.ht.A. Hasan" on July 27, a
1992.
On September 11,1992, the Board issued a "hiemorandum and Order (Setting Pleading Schedule)." in that order the Board ruled that each Petitioner must file, no later than October 5,1992, an amended petition and supplement to his or her petition containing contentions which the Petitioner seeks to have litigated in a hearing. Order at 7. The Board deferred ruling on the Petition until the final round of pleadings had been filed. Id. at 4. ,
On October 5,1992, Petitioners filed their " Supplement to Petition to Intervene and Request for llearing of B. Irene Orr, D.I. Orr, Joseph J hiacktal, Jr., and S.ht. A. Hasan,"
(Supplement). In the Supplement, Petitioners proposed one contention to be litigated in this ,
proceeding. The proposed contention states:
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.
Supplement at 1. This contention.is almost identical to a contention that was admitted in a previous construction permit extension for CPSES, Unit 1 (CPA-1 proceeding), except that the previously admitted contention referenced Unit 1 instead of Unit 2. Texas Utilitics Elec. Co..
(Comanche Peak Steam Electric Station, Unit 1), LBP 86-36A,24 NRC 575,580-81 (1986),--
aff'd, ALAB 868,25 NRC 912 (1987). :The CPA-1 proceeding was settled in 1988. Comanche l'eak, LBP-88188,28 NRC 103.
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On November 19, 1992, Petitioners Gled two other documents with the Board, "NotiGeation of Additional Evidence Supporting Petition to Intervene Filed by 11. Orr, D. Orr, J. hiacktal, and S. Ilasan" (Notification) and "hiotion to Compel Disclosure of Information Secreted by 1(estrictive Agreements" (h10 tion). On December 15, 1992, the Board issued its decision denying intervention to the Orrs on the basis of their failure to submit an admissible contention. Texua Utilitica Elec. Co. (Comanche Peak Steam Electric Station, Unit 2),
LDP-92-37, 35 NitC _, slip op. at 31-32 (December 15, 1992). The Board also declined to consider the information submitted in Petitioners' Notification and denied their hiotion. Id. at 36,38. On December 30,1992, Petitioners Gled their " Appeal of Atomic Safety and Licensing floard hiemorandum and Order." On January 8,1993, Petitioners Gled their brief. For the reasons set forth below, the lloard's decision was not erroneous. Accordingly, Petitioners' Appeal should be denied.
DISCUSSION
- 1. Legal Standards For the Appeal of a Licensing Board's Decision Denying the Mmiwie!Leia Contnition in A Construction Permit Extension Proceedine The Commission's regulations regarding intervention in Commission proceedings require, inter alia, that a person who has Gled a petition for leave to intervene in a Commission proceeding must file a list of contentions which the petitioner seeks to have litigated in the hearing. 10 C.F.lt. E 2.714(b)(1). A petitioner who fails to Gle at least one admissible contention will not be permitted to participate as a party. /J. Section 2.714(b)(2) requires that a petitioner provide the following information:
i a
5 r (i) A brief explanation of the bases of the contention, t (ii) A concise statement of the alleged facts or expert opinion which support j the contention and on which the petitioner intends to rely.in proving the
. contention at the hearing. . . . ;
(iii) Sufficient information. . . to show that a genuine dispute exists with the applicant on a material issue of law or fact. This showing must include references to the specific portions of the application. . . that the petitioner disputes and the supporting reasons for each dispute. . . .
10 C.F.R. $ 2.714(b)(2)(i lii).' Failure to meet any one of the above criteria of section 2.714(b)(2) would cause a contention to be inadmissible. 10 C.F.R. f 2.714(d)(2)(i). ,
The scope of a construction permit extension proceeding is " limited to direct challenges i
to the permit holder's asserted reasons that show ' good _cause' justification for the delay."
Washington Public Power Support System (WPPSS Nuclear Project, Nos.1 & 2), CLI 82 29, _ ,
16 NRC 1221,1229 (1982); See also Comanche Peak, ALAB-d68, 25 NRC at 935. In a construction permit extension proceeding, contentions having no discernable relationship to the scope of the proceeding are inadmissible. Northern Indiana Public Service Co. (Bailly .
Generating Station, Nuclear 1), LBP 816,13 NRC 253,254, (1981); see Nonhern Indiana - _ _
Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-619,12 NRC 558,570 (1980).
In the instant proceeding, the asserted good cause for the delay in CPSES, Unit 2 was ,
the fact that from April 1988 until February 1990, the Licensee had suspended construction at Unit 2 until the reinspection and corrective action program at Unit I was completed so that the safety modifications to Unit 2 could be made as a result of the lessons learned at Unit 1. See
- The above contention requirements became effective on September 11,-_1989. " Rules of Practice for Domestic Licensing Proceedings -Procedural Changes in the_ Hearing Process,"
54 Fed, Reg. 33168 (August i1,1989). The adoption of these new requirements, however, did
-not overturn previous Commission case law regarding the general requirements for contentions.
Sce, id. at 33169 71; (August 11,1989).
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1 IIP-92-37 at 3-4. See al3o "hafety Evaluation of itequest for Extension of the Latest construction Permit Completion Date Texas Utilities Electric Company, et al., Comanche Peak Steam Electric Station, Unit 2," ai 2 (July 28,1992). The construction permit for Unit 2 had been previously extended in 1988 for the same purpose.' 53 Fed. lleg. 47888. See also LilP-92-37 at 4. llecause the program at Unit I took longer than anticipated, significant construction activity at Unit 2 was not resumed until January 1991. 57 Fed. Iteg. 34323. See al301.11P-92-37 at 4. It was, therefore, necessary for TU to request an additional extension.
Id. That additional extension is the subject of this proceeding. Accordingly, the only issue in this proceeding is whether it was appropriate for TU to delay signincant construction activities at Unit 2 from November 18,1988 (the date of the last construction permit extension for Unit 2) until 1991.
Section 2.714a of the Commission's regulations provides for review of certain rulings on petitions for leave to intervene and requests for hearing. Where a licensing board has wholly denied a petition for leave to intervene, the petitioner may appeal that decision.
10 C.F.lt. E 2.714a(b). Where, as here, a licensing board denies a petition en the grounds that the petitioner failed to set forth an admissible contention, the decision will not be overturned unless it is erroneous. See Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 1),
ALAB-S93, 27 NitC 627, 631 (1988).
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No one, including Peti *ioners here, challenged the November 1988 construction permit extension for Unit 2.
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II. The Board Appropriately Considered the _ Nondisclosure /" Hush Money" Agreements
. In support of their contention, Petitioners assert that TU had a corporate policy to-violate Commission requirements, which had not been repudiated, as evidenced, in part, by the -
existence of nondisclosure /" hush money" agreements. Supplement at _4. Petitioners assert that.
the Board misconstrued the significance of the nondisclosure /" hush money" agreements. Appeal-at 5. Although Petitioners fail to specify which agreements they are referring to-in this argument, the Staff assumes that Petitioners are referring to the two- different groups .of-settlement agreements referenced in their Supplement. See Supplement at 5,8. The first group -
consists of agreements between TU and former minority owners of CPSES which settled state court civil proceedings. See id. at 5. The second group of agreements consists of settlement .
l agreements between contractors of TU and former employees at CPSES of employment discrimination claims. See id. at 8. The Baard correctly analyzed these settlement agreements-as they relate to Petitioners' arguments in support of their contention and appropriately determined that the agreements did not support Petitioners' contention. See LBP-92-37 at 21-23.
The Board, in ruling on the nondisclosure agreements, held that Petitioners failed to-present any supporting documentation which demonstrated, on balance, that the restrictive agreements were the cause of the delay at Unit 2 and not the reasons given by TU. ) LBP-92-37 '
at 22-23, 26-27. Petitioners, in their Appeal, assert that the Board misconstrued the significance
, of these agreements. Appeal at 4-5. They claim that the settlement-agreements are_ only evidence of TU's non-repudiation of the corporate policies which were responsible for the delay, .
but not the cause of the delay itself. Id. at 6. Petitioners claim that the mere existence of these
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agreements is sufficient to demonstrate that TU has not repudiated its corporate policy to violate the Commission's regulations. Id. Petitioners assert, therefore, that the Board erred when it required a " nexus" between the settlement agreements and the cause for the delay of construction at Unit 2. Id. at 5-6.
The Board's rulir.g that these agreements did not support Petitioners' contention was
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based on the fact that the Petitioners had failed to demonstrated that these agreements related to the issue of this proceeding, i.e., whether it was appropriate for TU to have delayed construction of Unit 2 in order to complete Unit I and incorporate the lessons learned as a result of the reinspection and corrective action program at Unit 1. See LBP-92-37 at 22,26-27. The Board's ruling is correct and is supported by both the facts and logic. The Board determined that e
Petitioners failed to demonstrate that a corperate policy to violate the Commission's regulations.
in fact existed. Id. Even if Petitioners had submitted facts sufficient to demonstrate that the corporate policy existed, Petitioners failed to demonstrate that this policy caused the delay at Unit 2 and not the reason asserted by TU or that TU had not repudiated this policy. Id, The Board correctly determined that it was necessary for Petitioners to allege some facts which demonstrated that a link did exist between the agreements and the actual cause of the delay of construction at Unit 2. Even if the settlement agreements were indicative of a corporate policy to violate the Commission's regulations which has not been repudiated, if the corporate -
. policy could not be shown to be the cause for the delay at Unit 2, the Licensee's repudiation or non-repudiation of that policy is not relevant to this proceeding. See id. at 21-22. Clearly, such a policy would warrant appropriate Commission action, but such action would not be within the -
scope of this proceeding. The Board, therefore, did not err when it determined that. the I
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nondisclosure agreements did not support Petitioners' contentiori because they failed to challenge TU's assertion of good cause. Id. at 22, 26-27.
111. The Board Correctly Declined to Consider Two Lengthy Documents Beferenced in Petitioners' Supplement ,
Petitioners claim that the Board erred when it failed to consider two lengthy documents, containing over 200 pages, referenced in their !;upplement, and specifically erred w hen it refused -
to consider whether these documents support Petitioners' claim that the delay in construction was -
caused by the Licensee's misconduct. Appeal at 7-8. However, as explained below, the Board's decision not to consider these lengthy documents is supported by Commission case law and the regulations. Accordingly, the Board's decision should be upheld.
The Board, in its decision, citing to both section 2,714(b)(2)(ii)of the Commission's ;
L regulations and Public Service Co, of New Hampshire (Seabrook Statior Units 1 and 2), .
CLI-89-3,29 NRC 234,240-241 (1989), determined that a petitioner may not simply incorporate -
massive documents by reference as a basis for its contention. LBP-92-37 at 19-20. -Section 2.714(b)(2)(li) states that a contention must contain references to specific sources on which a petitioner intends to rely. The Commission itself has explicitly stated that:
Commission practice. is clear that a petitioner may not simply incorporate massive documents by reference as the basis for or.as a statement of his U contentions. Such a wholesale incorporation by reference does not serve the purposes _of a pleading. The Commission expects parties to bear their burden
, and to clearly identify the matters on which they intend to rely with referenees _
g to a specific point. The Commission cannot be faulted for not having searched - ,
- for a needle that may be in a haystack.
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i Scabrook, CLI 89 3, 29 NRC at 240-41 (citations omitted.) The Board correctly found that Petitioners failed to clearly identify the matters on which they intend to rely with references to a specine point.' LBP-92 37 at 20. Accordingly, the Board's decision to refuse to review thesei documents was clearly correct.
IV. The Board Correctly Determined that the Minority Owner Settlement i Agreements Did Not Provide A Factual Basis for Petitioners' Contention and Correctiv Denied Their Motion For Discoverv
. In their Supplement and their Notification, Petitioners claimed that restrictive settlement
! . agreements between TU and former minority owners of CPSES, settling. state court civil
[ proceedings, is further evidence that TU has not repudiated its corporate policies which caused -
I the delay of construction at Unit 2. Supplement at 8, Notincation at:12, Petitioners further alleged that through these agreements, TU has secreted information which would provide a factual basis for their contention, and as such, requested the Board to require TU to provide this information to Petitioners. Appeal at 9; Motion at 1-2, in their Appeal, Petitioners assert that they are " entitled to an inference that the documentation concealed sufficiently established the factual bases for the contention" and accordingly, the_ Board erred-in not admitting ~ their l
contention. Appeal at 9. The Petitioners further state that the " regulatory process requires that 1
- Petitioners' reliance on the Appeal-Board's decision in ALAB-868 (Comanche Peak,-
ALAB-868,25 NRC 912) is misplaced.- While the' Appeal Board did state that a petitioner may >
reference documents to support its contention, it did not hold that a petitioner may reference
- massive documents without citing to the specific portions of the documents which support the l .
contention. LThe Commission's decision in Scabrook explicitly. states ~ that the wholesale j incorporation _by reference of massive documents is not permissible. Petitioners fail to address i
- the Commission's decision, which was specifically_ cited in the Board's decision. LBP-92-37 at-
- 20.
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the information obtained by TMPA and HEPC [tivo of the three former minority owners of CPSES] which relates, in any manner, to the licensing of CPSES (or the issues related to this proceeding) be fully disclosed to Petitioners." Id. at 10-11. Petitioners provide no support for their assertions.
In considering the settlement agreements between TU and the former minority owners
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of CPSES, the Board stated that Petitioners failed to support their allegation that these agreements resulted in the delay in the construction of Unit 2 and failed to explain how these agreements demonstrated that TU failed to repudiate the alleged corporate policies. See LBP-92-37 at 23. The Board correctly denied Petitioners' request for discovery because discovery is only available to a party in a proceeding who has filed an admissible contention.
Id. at 38. The Board's denial of Petitioners' request for discovery is fully consistent with Commission case law which states that only parties to a proceeding may obtain discovery. See Wisconsin Elec. Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 NRC-1245,
~
1263 (1982).
Petitioners also assert that the Board itself should have reviewed the documentation which was allegedly secreted by TU through the execution of the settlement agreements with the former minority owners of CPSES before rejecting their contention. ; Appeal at 9. Petitioners provide no support for their assertion and nothing in the Commission's regulations requires that the Board compel a licensee to disclose' documentation in order to provide support for a petitioners
- contention and the Board correctly declined to do so. See LBP-92-37 at 38. ' A petitioner is expected to come forward with the information sufficient to support its contention.
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See Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123,6 AEC 331,345 (1973). ,
See also 54 Fed. Reg. 33168, 33171.
Petitioners further argue that the agreements between TU and the former minority owners of CPSES violate the Commission's regulations, the Energy Reorganization Act, and:
i public policy. Appeal at 10-15. In their Motion and Notification, Petitioners had requested that -
the Board declare null and void certain portions of those agreements which would prevent the bringing of safety concerns to the NRC as being a violation of the Commission's regulations, the Energy Reorganization Act, and public policy. Motion at 1; Notification at 14. The Board declined to consider Petitioners' request because the Board determined that the request'was an '
integral part of Petitioners' impermissible discovery Motion. LBP-92-37 at 38.
Petitioners do not challenge the Board's ruling regarding theit request to declare null and void certain portions of the settlement agreements between TU and former minority owners of CPSES. In their Appeal they simply reiterate their original argument regarding the legality
- of the settlement agreements between TU and the former minority owners of CPSES. See
. Appeal at Il-15; Notification at 18-21.7 Pe'titioners' challenge to the settlement agreements in the Notification was fully addressed by the Staff's response to their Notification. See NRC Staff
. Response to Motion to Compel Disclosure of Information Secreted by Restrictive Agreements and Notification of Additional Evidence Supporting Petition to Intervene Filed by B'. Orr, D. Orr, J. Macktal, and S. Hasan"'(Staff Response _ to Notification) at 5-10. As articulated in .
t .-
- the Staff Response to Notification, these agreements do not fall within the scope of either section 7
In fact it appears that this portion of their Appeal is an exact copy of the same portion of'
- their Notification. Compare Appeal at Il-15 with Notification at 18-21.
i y , .e . . , , .
50.7(f) of the Commission's regulations or section 211 of the Energy Reorganization Act because they are not contracts which affect the terms of employment. Sec Id. See also 10 C.F.R. ( 50.7(f) and Energy Reorganization Act of 1974, as amended 5 211, Pub L. No.
486,106 Stat. 2776,42 U.S.C. f 5851.
The Staff did, however, determine that certain provisions of the agreements were inconsistent with Commission policy to the extent that they could be interpreted to preclude communication with the NRC. As such, the Staff has sent out letters to TU and the former minority owners of CPSES requesting that they inform the NRC of what actions they have taken or are taking in order to ensure that individual employees and organizations, because of the terms of the agreements, do not believe that they are precluded from coming to the NRC with s'fety concerns or are precluded from assisting third parties from doing the same. See Staff Response to Noti 6 cation at 8 n.4. Petitioners totally fail to address any of the Staff's arguments and even fail to note that the Staff agreed that certain provisions of the agreements were inconsistent with the Commission's policy regarding the free flow of information to it.
Petitioners' reiteration of their previous arguments regarding the settlement agreements, without challenging the Board's decision regarding them, does not support their appeal.
V. The Board Correctly Determined That Petitioners Failed to Satisfy Section 2.714(h)(2)(iii)
. Section 2.714(b)(2)(iii) of the Commission's regulations requires that a submitted contention include specine references to those portions of the application that the petitioner disputes. The application for a construction permit extension requires an explanation of the
asserted good cause for the delay. See 10 C.F.R. 6 50.55(b). A petitioner seeking to challenge an application for a construction permit extension must, accordingly, specifically reference those portions of the applicant's assertion of good cause the petitioner disputes. See 10 C.F.R. 6 2.714(b)(2)(iii). Section 2.714(b)(2)(iii) further requires that a petitioner submit suf6cient information to demonstrate that a genuine dispute exists with the applicant on a -
material issue of law or fact.
In this proceeding, the Board held that, although -Petitioners claimed they -were challenging TU's justification of good cause for the delay in the construction of Unit 2, they failed to specifically address TU's reasons for the delay, that is, the need to apply the safety lessons leamed from Unit 1 to Unit 2. LBP-92-37 at 22,23,31. The Petitioners, therefore, failed to specifically reference TU's application for the extension. Id. Additionally, the Board determined that Petitioners failed to submit sufficient information to demonstrate that a genuine dispute exists with the applicant on a material issue of law or fact. Id. at 31. Accordingly, the
- Board correctly held that Petitioners failed to satisfy.section 2.714(b)(2)(iii)of the Commission's
- regulations. Id. at 22,23,31.
Petitioners, in their Appeal, argue that they satisfied section 2.714(b)(2)(iii). Petitioners
' argue that they referenced TU's application by stating that they were challenging TU's asserted j
good cause for the delay of construction. Appeal at 16. According to the Petitioners, by simply.
stating that they.were challenging TU's assertion of good cause, without further elaboration of-i .. -
this challenge, they satisfied section 2.714(b)(2)(iii). Id. Petitioners also claim that they have -
submitted suf6cient information to demonstrate that a genuine issue exists with the applicant on a material issue of fact. Id. at 3,17. Petitioners further aver that the Board's interpretation of-t 1- # =w., sh-9 , - ,
p p.,y , ys *-- --
_ . . - - . - . - _ .. .. -_.-.- -.-. .- ~.~ - - . . - - . . . -
- section 2.714(b)(2)(iii) would require them to prove their case at the initial pleading stage, which is not the intent of the regulation. Id. at 16.
The Board correctly interpreted section 2.714(b)(2)(iii) as requiring at least specific references to the application. Section 2.714(b)(2) of the Commission's regulations specifically ,
states: "the petitioner shall provide the following information with respect toleach contention: . . (iii) Sufficient information. . . to show that a genuine dispute exists with the applicant on a material issue of law or fact. This showing must include references to the specific portions of the application. . . that the petitioner disputes. . ." 10 C.F.R 6 2.714(b)(2)
(emphasis added.) The Board's application of section 2.714(b)(2)(iii) is supported by the-Statements of Consideration accompanying the promulgation _of section 2.714(b)(2)(iii). The Commission stated that:
The Commission believes it to be a reasonable requirement that before a person or organization is admitted to the proceeding it read the portions of the application . . that address the issues that are of concern to it. . . Many intervenors in NRC proceedings already ably do-what is intended by this-requirement: they review the application before submitting contentions, explain the basis for the contention by citing pertinent portions and explaining why they have a disagreement with it.
54 Fed. Reg. 33168, 33171- (emphasis added._) Furthermore, the Board's interpretation _ of section 2,714(b)(2)(iii) does not require the Petitioners to prove their case at this stage of the proceeding, just merely to make specific references to the portions of the application for the construction permit extension _with which they disagree. _ Accordingly, the Board's decision regarding Petitioners' failure to satisfy section 2.714(b)(2)(iii) should be upheld.
Petitioners further assert that they have satisfied section 2.714(b)(2)(iii) by submitting sufficient information to demonstrate that a factual dispute exists as to whether the Licensee
continues to employ corporate policies in violation of NRC requirements, that these policies caused delays in construction, and that the Licensee has not repudiated these policies.' Appeal at 3-4, 17. Therefore, according to Petitioners, the Board's decision must be reversed.
Id. at 17. To support their argument Petitioners claim that portions of the record of the CPA-1 proceeding and the two specific documents filed in that proceeding contain sufficient facts to demonstrate that a factual dispute exists. Id. at 3. As already discussed, the Board properly declined to consider these lengthy documents. LBP-92-37 at 19-20.
Petitioners claim that they submitted s#f;aent information to demonstrate that TU had a corporate policy which caused and is still causing the delay in construction at CPSES.' /d.
at 2,17. Petitioners allege that TU had used " improper design certification methods" and intentionally relied on incorrect construction standards in the construction of CPSES and concealed these acts of misconduct.' /d. at 2,4. The Board did not err when it determined that in fact Petitioners had not submitted sufficient information. L.BP-92-37 at 27-28,31. The Petitioners claim that the above facts must be viewed in a light most favorable to Petitioners when determining whether Petitioners have succeeded to raise an issue of fact.
Appeal at 4. However, Petitioners fail to support their assertion and, in fact, are not supported by the Commission's regulations which place the burden of coming forward with information in support of its contention on the petitioner. See Midland, ALAB-123,6 AEC at 345. See also
" Rules of Practice for Domestic Licensing Proceedings--Procedural Changes in the Hearing Process," 54 Fed. Reg. 33168, 33171.
- Petitioners' assertion that there are still delays in construction at Unit 2 is inaccurate. In fact, it is the Staff's understanding that TU will soon be requesting issuance of the low power license for Unit 2.
- Petitioners do not elaborate on their allegation by identifying what design methods or
. construction standards the Licensee has allegedly improperly employed in the construction of Unit 2. The Staff assumes they are referring to their allegation in their Supplement that incorrect stiffness values were used to certify the pipe support system at CPSES. See
. Supplement at 14.
Board determined that Petitioners' assertions were unsupported. Id. at 28. Furthermore, even -
if true, the Board correctly held that Petitioners have failed to establish that these practices continued after 1988. Id. The Board, therefore, determined that Petitioners failed to satisfy section 2.714(b)(2)(iii) of the Commission's regulations."
Petitioners also claim that they submitted sufficient information, pursuant to section 2.714(b)(2)(iii), to demonstrate that the Licensee still employs the same corporate practices which caused the delay in construction. Appeal at 4. Petitioners claim that the fact that the issuance of Notices of Violations (NOV) and civil penalties demonstrates that the Licensee still employs the same corporate policies which caused the delay in construction. Id. at 4. However, as the Board correctly held, it is inevitable that in a project as large in magnitude as the construction of a nuclear power plant, some construction defects tied to quality assurance lapses are to be expected. LBP-92-37 at 25. The Board, relying on Union Elec. Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343,364 (1983), held that mere fact that the Licensee has received NOVs and civil penalties does not demonstrate a corporate policy to violate Commission regulations. Id. Petitioners failed to provide any further information which suggests that these violations were the result of corporate policies to violate the Commission's regulations or that they may have caused the delay of construction of Unit 2 instead of the reasons asserted by TU.
Id. Accordingly, the Board correctly determined that Petitioners failed to provide sufficient information to show that a genuine dispute of fact exists, pursuant to section 2.714(b)(2)(iii).
Furthermore, the Board correctly determined that Petitioners' allegations regarding incorrect construction standards and " improper design certi6 cations" fail to directly challenge TU's assertion of good cause for the delay in construction at Unit 2. LBP-92-37 at 28-29.
CONCLUSION For the reasons set forth above, the Board's December 15, 1992 Memorandum and Order denying Petitioners' petition for leave to inteivene and request for hearing on the basis of Petitioners' failure to submit an admissible contention, should be upheld.
, Respectfully submi ted,
. /&
Marian L. Zobl '
Counsel for N 'C Staff Dated at Rockville, Maryland this 15th day of January,1993 k
4
. . - - . . . . , . . . , - , ~ . _ , . .-
l atrii Q UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION -
'93 JAN 15 P3 :35 BEFORE THE COMMISSION.
'Na [sObi In the Matter of ) Docket No. 50-446-CPA
)
TEXAS UTILITIES ELECTRIC ) Construction Permit Amendment-COMPANY )
)
(Comanche Peak Steam Electric )
Station, Unit 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPEAL OF LICENSING BOARD'S DECISION DENYING PETITION.FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING FILED BY B. IRENE ORR AND D.L ORR" 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 Nuclear Regulatory Commission's internal mail system this 15th day of January,1993:
Morton B. Margulies, Chairm"
- R. Micky Dow Administrative Law Judge .
Sandra Long Dow dba Disposable Atomic Safety and Licensing Board Workers of- Comanche Peak Steam U.S. Nuclear Regulatory Commission Electric Station Washington, D.C. 20555 Department 368 P.O. Box 19400 -- -
Austin, TX '78760-9400 James H. Carpenter *
- Administrative Judge. Peter S. Lam
- Atomic Safety and Licensing Board Administrative Judge l U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 t
a v -
George L. Edgar Office of the Secretary (16)*
Steven P. Frantz U.S. Nuclear Regulatory Commission
- Nancy L.- Ranek Washington, D.C. 20555 Newman & Holtzinger, P.C. Atta: Docketing and Service Section Suite 1000 1615 L Street, N.W.
Washington, D.C. 20036 Michael D. Kohn Atomic Safety and Licensing Board Stephen M. Kohn Panel (1)*
Kohn, Kohn and Colapinto, P.C. U.S. Nuclear Regulatory Commission 517 Florida Ave., N.W. Washington, D.C. 20555 Washington, D.C. 20001 Adjudicatory File (2)* Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication (1)*
Washington, D_.C. 20555 U.S. Nuclear Regulatory Commission Attn: Docketing and Service Section Washington, D.C. 20555 Marian L. Zobler Counsel for NRC S - _
W
_ _ _ __ _ _ ________ _-