ML20127P818
| ML20127P818 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/25/1992 |
| From: | Edgar G NEWMAN & HOLTZINGER, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#492-13410 92-668-01-CPA, 92-668-1-CPA, CPA, NUDOCS 9212030132 | |
| Download: ML20127P818 (16) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 92 N9V 25 Pi2 37
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Nuu im sm nt int t,-
a i al In the Matter of
)
)
Docket No. 50-446-CPA TEXAS UTILITIES ELECTRIC COMPANY, )
ASLBP NO. 92-6r8-01-CPA
)
(Construction Hermit (Comanche Peak Steam Electric
)
Amendment) l Station, Unit 2)
)
)
l TEXAS UTILITIES ELECTRIC COMPANY'S l
ANSWER TO NOTIFICATION l
OF ADDITIONAL EVIDENCE SUPPORTJC PETITION TO IMT's.RVENE t
t On November 17, 1992, Petitioners B. Irene Orr, D.I. Orr, Joseph Macktal, Jr. and S.M.A. Hasan filed addAtional information which they allege supports their l
previously filed contention. 1/
Specifically, this "new" information consists of two settlement agreements which were executed approximately four years ago by Texas Utilities Electric Company ("TU Electric") and Brazos Electric Power Cooperative, Inc. ("BEPC"), and by TU Electric and Texas Municipal Power Agency ("TMPA").
Although these two agreements are substantially similar to a third agreement between TU Electric and Tex-La, which was attached to Petitioners' earlier Supplement of 1/
" Notification of Additional Information Supporting Petition to Intervene" (Nov. 17, 1992)
(" Notification").
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October 5, 1992, 2/ Petitioners nonetheless use these agreements as the occasion for providing extended new argument over the 1.egality of all the settlement agreements between TU Electric and the former Comanche Peak Steam Electric Station
("CPSES") minority owners.
Concluding (incorrectly) that these agreements are improper, Petitioners claim that these i
four year old agreements demonstrate that the current delay in the completion of construction of CPSES Unit 2 was due to some unidentified improper corporate policy.
Petitioners' latest attempt to provide a basis for their contention should be rejected for a number of reasons.
First, the two agreements attached to the Petitioners' pleading were provided to the NRC several years ago and were available to Petitioners long before they sought to intervene in this proceeding.
Thus, at a minimum, Petitioners were required to address the five factors governing untimely contentions for their failure to address these agreements by the October 5, 1992 filing deadline established by the Licensing Board. 2/
Having failed to do so, their latest submittal should be rejected.
2/
" Supplement to Petition to Intervene and Request for Hearing" (Oct. 5, 1992)
(" Supplement").
2/
Petitioners' only excuse for failing to provide these agreements earlier is the bare assertion that they only recently received these agreements from the NRC Staff.
Petitioners neglect to point out that these agreements were-provided to the NRC more then three years ago.
Notification at 1-2.
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. Second, Petitioners nake no ef fort to explain how these agreements have anything to do with the current extension request.
This proceeding is intended to address whether there is good cause for the delay in completing construction of CPSES subsequent to November 18, 1988 -- the date of the last construction permit extension.
Thus, the focus of this proceeding must be on events occurring between November 1288 and the present.
The TMPA and BEPC agreements 1
predate the previous extension granted by the NRC and thus are i
irrelevant.
Third, in light of their contention, the Petitioners must show that the two agreements somehow demonstrate (1) that i
the current delay in completing Unit 2 was caused by the i
correction of safety problems; (2) that the safety problems were the result of an improper corporate policy; and (3) that the alleged improper corporate policy has not been discarded i
or repudiated.
Petitioners latest submittal fails to meet any of these requirements.
Each of these points is discussed in i
more detail below. 1/
1/
Petitioners' ' Notification" also seems to suggest that Petitioners are somehow entitled to substantial discovery of TU Electric regarding any information returned to TU Electric by the former CPSES minority owners.
As explained in TU Electric's " Answer To Motion To Ccmpel Disclosure Of Information Secreted By Restrictive Agreements" filed-concurrently with the present Answer, i-Petitioners are not entitled to discovery to frame their previously filed contention or provide its bases.
See
-Northern States Power Co. (Prairie Island Nuclear Generating i
(continued...)
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Petitioners Fail To Address The Five Factors Governing Untime11 Filing 4
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Petitioners' latest submittal in support of-their t
l proposed contention should be rejected as untimely for two reasons.
First, this Board's order of September 11, 1992 l
required that Petitioners file an amended petition and I
supplement no later than October 5, 1992 5/
Because l
Petitioners' November 17, 1992 Notification is unquestionably untimely, Petitioners were required, at a minimum, to i
demonstrate that a balancing of the five factors in 10 C.F.R. 5 2.714(a)(1)-supports their late filing.
Petitioners wholly j
fail to meet this burden and accordingly, their " Notification" should be rejected.
In particular, Petitioners fail to address the first i
i and most important factor -- good cause for their untimely filing.
Petitioners' only explanation for their untimely.
filing is that the settlement agreements between TU Electric j
and two former CPSES minority owners, attached to their l
Notification, were-unavailable to Petitioners before the-i t
i 4f(... continued)
Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 192, recons, denied, ALAB-110, 6 AEC 247, aff'd,:CLI-73-12,.6 AEC 241 i
(1973); Public Service Co. of New Hampshire (Seabrook i
Station, Units 1 and 2), ALAB-942, 32 NRC 395,-426-27 (1990).
2/
Memorandum and order (Setting Pleading Schedule) (Sept. 11, 1992).
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i October 5, 1992 deadline. 6/ 'According to Petitioners, they only received copies of the settlement agreements from the NRC I
l Staff on October 13, 1992.
Hence, they claim that their i
failure to include these agreements in their October 5, 1992 supplement
'.s excusable.
However, as TU Electric will show, i
Petitioners' characterization of these agreements as "not available... prior to the filing of Petitioners' October 5, I
1992 Supplement," (Notification at 2), is inaccurate and fails to establish good cause for their untimely filing.
The NRC has repeatedly held that an allegation that information has only recently come into a petitioner's possession fails to demonstrate good cause, in circumstances P
l where the information was publicly available prior to the r
l filing deadline.
See Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1764-65 (1982).
1 Sge e.o.,
Philadelphia Electric Co. (Limeric Generating Station, Units 1 and 2), ALAB-828, 23 NRC 13, 21 (1986). 1/
i Indeen, the NRC has firmly established the principle that petitioners seeking to intervene are under an affirmative duty l
6/
See " Notification" at 1-2; " Supplement" at 7.
1/
As the NRC Appeal Board explained in Enrico Fermi, ALAB-707 16 NRC at 1764-65:
A subjective test of this kind provides an i
incentive for remaining uninformed and creates the prospect of collateral factual contests aimed at ascertaining tha state of mind of the prospective intervenor.
3
- I to search the publicly available infornation at the NRC.and 1
elsewhere in order to provide support for their proposed contention.
Duke Power Co. (Catawba Nuclear Station, Units 1 l
and 2), ALAB-687, 16 NRC 460, 468 (1982), vacated in part on other arounds, CLI-83-19, 17 NRC 1041 (1983); Ducuesne Licht Co. (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 412 (1984).
In this case, the settlement agreements attached to l
Petitioners' " Notification" have long been publicly available.
TU Electric provided these two agreements to the NRC in mid-1988 as attachments to two applications for amendments to the CPSES construction permits, requesting transfer of TMPA's I
and BEPC's ownership interest in CPSES to TU Electric. 8/
i These applications were duly noticed in the Federal Recister t
l in August and December 1988. 9/
As a result, these two i
8/
See TXX-88285, Letter to NRC from W.G. Counsil (TU Electric) dated Mar. 4, 1988 (re:
transfer of Texas Municipal Power Authority's ownership interest in CPSES); TXX-88578, Letter to NRC from W.G. Counsil (TU Electric) dated July 22, 1988 (re:
transfer of Brazos Electric Power Cooperative's l
ownership interest in CPSES).
2/
See 53 Fed. Reg. 31,778 (1988); 53 Fed. Reg. 50,610 (1988),
i As stated in the Federal Register, all relevant documents were publicly available:
For further details with respect to this action see (1).the application for amendment, dated 2
March 4, 1988, and supplemental information-dated March 31, 1988, (2) Amendments No. 9 and No. 8 to Construction Permit Nos. CPPR-126 and CPPR-127, respectively, and (3) the Commission's related Safety Evaluation. All of these items are (continued...)
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agreements have been publicly available for approximately four i
j years.
Under these circumstances Petitioners cannot demonstrate good cause for their untimely pleading.
j Second, Petitioners' ' Notification" corsists almost entirely of gal arguments which should have been made, if at all, in their October 5, 1992 Supplement, In that supplement, j
Petitioners attached a copy of the Tex-La settlement agreement i
with TU Electric and provided extensive arguments why the 1
i Tax-La settlement agreement (as well as the BEPC and TMPA
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settlement agreements) supported their contention.
Because the Tex-La agreement is substantially the same as the BEPC and i
TMPA agreements, there is plainly no reason why the additional i'
legal argument contained in the Petitioners' ' Notification" j
was not provided earlier.
In essence, the Petitioners have improperly used the BEPC and TMPA settlements as the occasion 4
to provide additional legal arguments to bolster their i
previous supplement.
That kind of piecemeal litigation is i
improper and the Petitioners' ' Notification" should ta i
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- rejected, i
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9/(... continued) available for public inspection at the Commission's Public Document Room, 1717 H
- Street, N.W.,
Washington, DC 20555.
Id.
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8-II.
The Settlement Agreements Are Legally Irrelevant To The Issues In This Proceeding.
As TU Electric and the NRC Staff explained in their responses to Petitioners' October 5, 1992 Supplement, the scope of issues which can be raised in this case is narrow.
Specifically, this proceeding may only address whether 1U Electric's conduct and activities during the period November 18, 1988, through 1991 resulted in an improper delay of construction of Unit 2.
In this case, the TMPA and BEPC settlement agreements fall outside the scope of this proceeding for two reasons.
First, each agreement predates the construction permit extension previously granted by the NRC in November 18, 1988 1.0_/
In deciding to grant the 0
previous extension, the NRC necessarily rejected the notion that any conduct or activities of TU Electric prior to that date improperly delayed construction of Unit 2.
Second, as is nade plain by Petitioners' October 5, 1992 Supplement and their " Notification", Petitioners contend 1
that the settlement agreements with the CPSES minority owners demonstrates the continuation of a corporate policy violative of NP.C regulations which previously led to the delay in construction of Unit 1. llf That contention is not only outside the scope of this proceeding because it relates almost 10/
As noted earlier, the NRC had copies of each of the agreements at the time the previous extension was granted.
11/
Petitioners Notification at 3-4.
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9-exclusively to activities which predate the November 18, 1988 extension, but is also a direct attack on the NRC's decision to issue TU Electric an operating license for Unit 1.
In granting the operating license, the NRC made the following finding:
Construction of Comanche Peak Steam Electric Station, Unit No. 1 (the 1
facility), has been substantially completed in conformity with..
the provisions of the [ Atomic Er.ergy) Act and the regulations of the Commission. H /
As TU Electric noted in its earlier response to Petitioners' Supplement, Petitioners' argument that Unit 1 was delayed in violation of NRC regulatory require,ents cannot be squared with the Commission finding that Unit 1 was constructed "in conformity" with the " regulations of the Commission."
Petitioners' contention and-their proffered bases are nothing more than an impermissible challenge to the NRC's prior final and conclusive finding and must, therefore, be rejected.
M/
Texas Utilities Electric Co., Docket No. 50-445, combnew Peak Steam Electric Station, Unit No. 1, Quality Operating License No. NPF-87 (Apr. 12, 1990).
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- III. The settlement Agreements Fail-To Satisfy The Commission's Requirements For Admission Of_A Contention For A Construction Permit Extension Proceeding In Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), CLI-86-15, 24 NRC 397 (1986), the Commission established a three-pronged test for judging the admissibility of contentions in cases such as this:
1.
There must be a delay in construction caused by correction of past safety problems.
2.
The past safety problems must have been caused by a
" deliberate corporate policy" of violating NRC requirements.
3.
This corporate policy must not have been discarded or repudiated and must be ongoing.
A proposed contention and its supporting basis must satisfy all three prongs to be admissible.
Id. at 401-03.
- Here, Petitioners fail to meet any of them.
First, Petitioners do not even allege, much less show, that these agreements played any role whatsoever in the delay of CPSES Unit 2 construction.
Petitioners, therefore, fail to demonstrate any nexus between the agreements and the construction permit extension for CPSES Unit 2 construction.
On this basis alone, the-Board should reject the Petitioners' proffered basis contained in their " Notification".
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i Second, Petitioners also fail to explain how these settlement agreements reflect a " deliberate corporate policy" 1
of violating NRC requirements or show that the past safety l
problems were caused by such a policy.
Equally important, Petitioners' assertion that the settlement agreements violate NRC requirements essentially constitutes.an improper challenge to previous NRC findings.
The TMPA and BEPC settlements provided for th( transfer of TMPA and BEPC ownership interests in the CPSES to TU Electric.
Soon after executing the settlement agreements, TU Electric provided them to the NRC as part of its application to amend the construction permit to reflect the transfer of ownership.
After reviewing the application, the NRC granted the. amendment, finding:
The issuance of these amendments to Construction Permit Nos. CPPR-126 and CPPR-127 complies with the standards and requirements of the-Atomic Energy Act of s
1954, as amended (the Act), and the Commission's regulations. The Commission has nede appropriate findings as required by the Act and the Commission's 3
regulations in 10 CFR Chapter I, which is set forth in Amendments No. 9 and J
No. 8. 1)_/
IJ/
53 Fed. Reg. 31,779 (1988) (Transfer of Texas Municipal Power Authority's ownership interest in CPSES); 53 Fed. Reg.
50,610 (1988) (Transfer of Brusos Electric Power Cooperative's ownership interest in--CPSES).
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Plainly, this finding could not have been nede if the very agreements transferring the minority owners interests to TU Electric violated NRC requirements.
Finally, Petitioners provide no evidence or explanation of the relationship between the settlement agreements, executed over four years ago, and TU Eleccric's current corporate policies regarding CPSES construction.
s Accordingly, these agreements fail to support the bare assertion that TU Electric has not repudiated past policies, or the allegation that TU Electric currently has an improper policy.
In summary, nothing presented by Petitioners demonstrates that the settlement agreements satisfy any of the three prongs of the Commission's test, therefore, they do not provide a sufficient basis for admitting their contention in this proceeding.
CONCLUSION Petitioners' " Notification" is procedurally improper and substantively irrelevant.
It consists primarily of nakeweight legal arguments having nothing to do with th'.s proceeding. 14/
It should be rejected by this Board.
Respectfully submitted
/
MO ss Robert A. Wooldridge, Esq.
Ge'orge 7/Ed'ga'E Worsham, Forsythe, Sampels Thomas W.-Schm.
& Wooldridge Eteven P. Fran z 2001 Bryan Tower Paul J. Zaffuts Suite 3200 Newman & Holt:inger, P.C.
Dallas, TX -75201 Suite 1000 (214) 979-3000 1615 L Street, N.W.
Washington, D.C. 20036 (202) 955-6600 Attorney; foc TU Electric November 25, 1992 s
11/
TU Electric has not addressed the various legal arguments contained in Petitioners' " Notification".-'Those arguments are addressed, however, in TU Electric's letter to the NRC dated August 6, 1992, a copy.of which is attached to MN Electric's Answer to Petitioners October 5, 1992 Supplement.
Suffice it to say that TU Electric's letter convincingly demonstrates.the analytical deficiencies in.
Petitioners' " legal analysis."
._________________._____.----.m-
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UNITED STATES OF AMERICA 4
NUCLEAR REGULATORY COMMISSION ATONIC SAFETY AND LICENSING BOARD.
j
'92 !G 25 Pi2 :37
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In the Matter of'
)
f i
)
Docket No. 50-446 CP'A d;j "* I TEXAS UTILITIES ELECTRIC COMPANY, )
ASLBP NO. 92-668-01-CPA'
)
(Construction Permit (Comanche Peak Steam Electric
)
Amendment)
Station, Unit 2)
)
)
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CERTIFICATE OF SERVICE l
I hereby certify that copies of TU ELECTRIC'S
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ANSW'!:R TO NOTIFICATION OF ADDITIONAL EVIDENCE SUPPORTING PETITION TO INTERVENE were served.upon the following persons by deposit in the United States Mail (except as indicated below), postage prepaid and properly addressed, on the date shown below:
j U.S. Nuclear. Regulatory Commission Atomic Safety and Licensing Board Adjudicatory File Washington, D.C.
20555.
l (Two Copies) l l
Office of the Secretary
- l U.S. Nuclear Regulatory Commission-l Washington, D.C.
20555 Attention:
Chief, Docketing and Service Section (Original'Plus Two Copies)
- Served by Hand I,
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Administrative Judge
- Morton B. Margulies, Chairran Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Administrative Judge
- James H. Carpenter Atomic Safety and Licensing Board U.S. Nuclear Regulatory Connission Washington, D.C.
20555 Administrative.7udge*
Peter S. Lam Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Janice E.
N',
.e Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Marian L. Zobler Office of the General Counsel U.S. Nuc. lear Regulatory Commission Washington, D.C.
20555 Michael H. Finkelstein Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 l
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l Sandra Long Dow R. Micky Dow 322 Mall Blvd., #147 Monroeville, PA 15147 l
Michael D. Kohn l
Stephen M. Kohn Kohn, Kohn and Colapinto, P.C.
517 Florida Ave., N.W.
Washington, D.C.
20001 Dated this 25th day of November, 992.
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Paul Jf
'f//uts Newman & foltzinger, P.C.
Suite 1000 1615 L Street, N.W.
Washington, D.C.
20036 l
(202) 955-6600 l
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