ML20140F111
| ML20140F111 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 02/05/1986 |
| From: | Noonan V Office of Nuclear Reactor Regulation |
| To: | |
| Shared Package | |
| ML20140F072 | List: |
| References | |
| NUDOCS 8603310047 | |
| Download: ML20140F111 (5) | |
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7590-01 NUCLEAR REGULATORY COMISSION TEXAS UTILITIES ELECTRIC COMPANY, ET AL.
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COMANCHE PEAK STEAM ELECTRIC STATION, UNIT NO. I DOCKET NO. 50-445 NOTICE OF ENVIRONMENTAL ASSESSMENT AND FINDING OF NO SIGNIFICANT IMPACT The Nuclear Regulatory Comission (the Comission) is considering issuance of an extension to the latest construction completion date specified in Construction Fennit No. CPPR-126 issued to Texas Utilities Electric Company. Texas Municipal Power Agency, Brazos Electric Power Cooperative, Inc. and Tex-La Electric Cooperative of Texas. Inc. (Appli-cants) for the Comanche Peak Steam Electric Station Unit No. 1 (the facility) located on Applicants' site in Somervell County, Texas.
ENVIRONMENTAL ASSESSMENT Identification of Proposed Action: The proposed action would anend the construction permit by extending the latest construction completion date i -.
to August 1, 1988. The proposed action is in respon:e to Applicants' request dated January 29, 1986, as supplemented February 4, 1986.
The Need for the Proposed Action: The proposed action is needed because I
r the construction of the facility is not yet fully completed. The Appli-cants state that, although construction on Comanche Peak Unit I was essentially completed early in 1985, ma,ior efforts to reinspect and l
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2-reanalyze various structures, systems, and components is currently under-These efforts are being conducted by the Applicants' Comanche Peak way.
Response Team to verify both design and construction adequacy as well as
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to respond to numerous issues raised in the operating license proceeding, by the NRC's Technical Review Team, and by other sources.
This activity has been ongoing since the fall of 1984. The Applicants anticipate that it will not be complete before the second quarter of 1986.
In addition, the operating license hearings are not yet completed and will involve additional time for which the construction permit will be needed.
Environmental Impacts of the Proposed Action: The environmental impacts
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associated with construction of the facility have been previously 1
discussed and evaluated in the NRC staff's Final Environmental Statemen (FES)l issued in June 1974 for the construction pemit stage which covered construction of two units. Unit 2 is not affected by the proposed h
action.
Since the proposed action involves extending the construction pemit, radiological impacts are not affected by this action.
There are no radiological impacts associated with this action. The impacts that are involved are all non-radiological and are associated with continued construction.
Since the construction of the facility is essentially 100%
complete, most of the construction impacts discussed in the FES have e.lready occurred:
construction-related activities have disturbed about 400 acres of rangeland, the Squaw Creek Reservoir has been built, as have transmission lines and corridors, and a railroad spur.
These activities and their impacts occurred earlier and are not affected by this proposed action.
3 The reinspection and rework that may be required will not have any significant environmental impact. The impacts associated with the work are equivalent to those of a maintenance or repair program. This activity will all take place within the facility and will not result in impacts to previously undisturbed areas.
There are no new significant impacts associated with this extension.
There are, however, impacts that would continue in order to complete plant construction in addition to rework discussed above. These are connunity and traffic impacts, and continued groundwater withdrawal.
Comunity impacts from continued construction would be similar to those impacts previously assessed. The total number of workers on-site for both units at the present time (about 5300) is about the same (although somewhat smaller) as during earlier peak construction periods. The number of workers specifically assigned to bnit 1 is small compared with the number associated with the completion of Unit 2.
The number of workers on-site will decline as the reinspection program for Unit 1 is completed during 1986. Continuing construction does not involve comunity impacts different from those previously considered or significantly greater than those previously considered or experienced, i
The construction permits for Comanche Peak Units 1 and 2 limit i
l groundwater usage to 40 gpm on an annual average basis for the site.
l Usage for 1984 and 1985 has averaged less than half this amount for both units.
In fact, most construction water is being supplied from the Squaw Creek Reservoir, thus reducing the usage of groundwater. For these reasons, we conclude that continued construction will not have a signifi-i cant effect on groundwater.
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Based on the foregoing, the NRC staff concluded that the proposed extension of the construction permit would have no significant environ-ment impact. Since this action would only extend th'e period of construction as described in the FES, it does not involve any different impacts or a significant change to those impacts described and analyzed in the original environmental impact statement.
Alternatives Considered: A possible alternative to the proposed action would be to deny the request. Under this alternative, the applicants would not be able to complete construction of the facility. This would
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result in denial of the benefit of power production. This option would not eliminate the environmental impacts of construction already incurred.
If construction were halted and not completed, site redress activi-ties would restore some small areas to their natural state. This would s!
be a slight environmental benefit, but much outweighed by the economic losses from denial of use of a facility that is essentially completed.
Therefore, this alternative is rejected.
Alternative Use of Resources: This action does not involve the use of resources not previously considered in the FES for Comanche Peak.
Agencies and Persons Contacted: The NRC staff reviewed the Applicants' request and applicable documents referenced therein that support this extension.
The NRC did not consult other agencies or persons.
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Finding of No Sionificant Impact: The Commission has determined not to prepare an environmental impact statement for this action. Based upon the environmental assessment, we conclude that this action will not have a significant effect on the quality of the human environment.
For details with respect to this action, see the request for extension dated January 29, 1986, as supplemented February 4,1986, which are available for public inspection at the Commission's Public Document Room, 1717 H Street, N.W., Washington, D.C., and at the local public document room at the Somervell County Public Library, Glen Rose, Texas 76403.
Dated at Bethesda, Maryland this day of 1986.
FOR THE NUCLEAR REGULATORY COMMISSION 0
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A an, Director R Proiec Direct ate #5 g
Division f PWR Licensing-A e
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/JC b4 d C, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION C& m.
COMMISSIONERS:
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's, Nunzio J. Palladino, Chairman
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Thomas M. Roberts James K. Asselstine e _.
Frederick M. Bernthal 9-Lando W Zech, Jr.
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In the Matter of
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TEXAS UTILITIES ELECTRIC COMPANY, Docket No. 50-445
' eta _1 (Comanche Peak Steam Electric
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Station, Unit 1)
MEMORANDUM AND ORDER (CLI-86-04)
I.
Background
h This case arises from a regrettable and wholly avoidable omission by the Texas Utilities Electric Company (TUEC), which in 1974 received a construction permit (CPPR-126).for the Comanche Peak Steam Electric Station (CPSES) Unit 1 facility, to be built near Glen Rose, Texas. As extended, that construction permit was due to expire on August 1, 1985.
Under 10 CFR 9 2.109 of the Commission'3 regulations, the filing of a timely request for an extension keeps a construction permit in force. TUEC failed to make such a request. The omission was detected by the NRC on January 28, 1986, during a routine document review. This represents the first time in the history of the civilian nuclear power program that the holder of a construction permit allowed its permit to expire withcut making a timely request for an extension. The result has been the needless expenditure of
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2 time and resources by the Commission. We note with approval, therefore, that the NRC staff has advised us, in its filing of February 13, 1986, that it is considering whether to take enforcement action against TUEC for conducting construction activities at Comanche Peak Unit 1 after the expiration date of its construction permit.
On January 29, 1986, TUEC applied to the NRC Staff for an extension of CPPR-126. TUEC advised the Staff that while physical construction of the plant was essentially complete, some on-site work remained to be completed, including an effort to reinspect portions of the plant and to identify and replace any defective or non-conforming materials or systems, and that it had ceased most construction activities at Unit 1 pending NRC action on its application.I On January 31, 1986, the Citizens Association for Sound Energy (CASE), an intervenor in the Comanche Peak operating licensing proceeding, filed a pleading with the Commission itself seeking (1) the imposition of a civil penalty against TUEC for construction activities at CPSES Unit 1 0
between August 1 and January 29, (2) a definitive order directing TUEC to file an application for a new construction permit and to cease all construction activities at CPSES Unit 1, (3) a determination that significant hazards considerations existed in any extension of the construction permit, and (4) a hearing before the Atomic Safety and Licensing Board Panel (ASLBP) on the request to extend the construction permit.
TUEC responded to CASE's ITUEC continued activities which were related to (1) maintenance of systems already in operation, (2) design activities, (3) ongoing inspection and planning activities which responded to NRC staff criticisms, exclusive of actual physical corrective action, and (4) corrective maintenance of systems which were undergoing repairs at the time of discovery, if TUEC judged such activities necessary to preserve the intergrity of the installed system.
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3 pleading on February 4,1986, asking that the Comission reject CASE's argu-ment that a new construction permit was required, refer the remainder of the first three items in CASE's pleading to the NRC Staff for appropriate action, and deny the request for a hearing.
While this matter was still pending before the Commission, the staff issued a NEPA finding of no significant environmental impact relating to the exterision of CPPR-126 and published this finding in the Federal Register.
See 51 Fed. Reg. 4834 (Feb. 7,1986). Subsequently, on February 10, 1986, the Staff issued the requested extension of CPPR-126 after making a finding that the extension involved no significant hazards considerations. CASE has responded with a request that the Commission stay the effectiveness of the construction permit extension while granting the relief previously requested in CASE's January 31st pleading. The Staff and TUEC have responded in opposi-tion to that request, and CASE has moved to file a reply memorandum, which we have accepted and considered.
Af ter due consideration, we:
(1) deny both CASE's request for a halt to construction and its request for the institution of a new constructicn permit proceeding; (2) deny CASE's request for a stay of staff's extension of CPPR-126; (3) reject CASE's view that significant hazards considerations are involved in the extension of CPPR-126; (4) refer CASE's request for enforce-ment action to the staff for consideration under 10 CFR 2.206; and (5) refer CASE's request for a hearing to the Chairman of the Atomic Safety and Licensing Board Parel for appointment of a hearing board to rule on the hearing request and to conduct any necessary hearings in accordance with Subpart G of 10 CFR Part 2.
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4 II. Renewal Of The Construction Permit The first legal issue before the Commission for decision is whether TUEC's failure to make a timely application for an extension prior to the expiration date of its construction permit had the effect of causing a com-plete forfeiture of the permit, such as to preclude the issuance of an exten-sion and to require the initiation of an entirely new construction permit proceeding. To answer this question, which we resolve in the. negative, we begin by looking at the statute.
Section 185 of the Atomic Energy Act (AEA) provides in pertinent part:
The construction permit shall state the earliest and latest dates for the completion of the construction or modification. Unless the construction or modification of the facility is completed by the completion date, the construction permit shall expire, and all rights thereunder be forfeited, unless upon good cause shown, the Commission extends the completion date.
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The legislative history of the Atomic Energy Act does not explicitly state the purpose underlying this provision.
It is noteworthy, however, that the quoted language was modeled on the provision of the Comunications Act of
'1934 which governs the issuance of radio station construction permits by the Federal tumunications Comission.2 At the time that the Atomic Energy Act of 1954 was passed, all nuclear fuel was owned by the United States Government, and it was envisioned that recipients of construction permits would, once their facilities were completed, receive some of that publicly owned fuel for 2See Proposed Amendments to the Atomic Energy Act of 1946: Hearings on S. 3323 and H.R. 8862 Before the Joint Comittee on Atomic Energy, 83rd Cong...
2d Sess. 116 (1954) (Representative Hinshaw), reprinted in II Legislative History of the Atomic Energy Act of 1954, 1635, 1751-56.
5 use in the reactor.3 Thus in 1954, there wera significant analogies between the issuance of construction permits for radio stations and nuclear reactors _:
both involved the allocation of a scarce resource in the sole possession of the Federal Government.
In both cases, moreover, it could be presumed that if a permittee failed to make use of its allocation, some other applicant would be in a position to use it.
The regulations promulgated by the Atomic Energy Comission for the.
implementation of the Atomic Energy Act demonstrate the significance which attached to allocations of nuclear fuel. Under 10 CFR 6 50.60, " Allocation of Special Nuclear Material." the Comission was authorized to include in each construction permit a statement of the amounts and scheduling of transfers of special nuclear material from the Comission to the permittee. 21 Fed. R_eg.
e 355 (Jan. 19, 1956). Significantly, 10 CFR 6 50.55(a), which now provides simply that "[t] hat the permit shall state the earliest and latest dates for completion of the construction or modification," then included a second sentence: "If the construction or modification is completed before the earliest date specified, the holder of the permit shall promptly notify the Commission for the purpose of accelerating final inspection and any scheduled delivery of materials from the Commission." (Emphasis added.) Likewise, the regulations foresaw the possibility of competition for scarce nuclear fuel, and therefore provided, in 10 CFR 6 70.23(f), that "[i]n the event that applications for special nuclear material exceed the amount available for distribution, the Commission wi'll give preference to those activities which 3Section 52 of the Atomic Energy Act, which provided for sole Commission '
ownership of all special nuclear material, was repealed in 1964 Public Law 68-489 (78 Stat. 602), sec. 4
6 are most likely, in the opinion of the Comission, to contribute to basic research, to the development of peacetime uses of atomic energy,... to the economic and military strength of the Nation... [or] to major advances in the application of atomic energy for industrial or' commercial purposes." 21 Fed.
_R_eg. 764 (Feb. 3, 1956).
e Taken as a whole, these regulatory provisions indicate that at the time the Atomic Energy Act was passed, the allocation of scarce fuel was of major concern to the agency charged with implementation of the Atomic Energy Act.
Ten years later, the development of the nuclear power and uranium mining industries made Government ownership and allocation of nuclear materials no longer a necessity, and Section 52 of the Atomic Energy Act was repealed. See
" Private Ownership of Special Nuclear Materials, 1964,' Hearings Before the Subcomittee on Legislation of the Joint Comittee on Atemic Energy, 88th Cong., 2d Sess. (1964).
It thus appears that though the requirenent that construction pemits include tennination dates remained in the statute, the policy reasons underlying that requirement had ceased to exist.
As we have said earlier, TUEC's failure to file a timely renewal request is unique in the Comission's experience. There is thus no case law which interprets Section 185 of the Atomic Energy Act as it applies to this situation. There is, however, case law interpreting the parallel provision of the Comunications Act of 1934 which holds that the expiration of the original construction permit did not preclude the Commission from renewing that permit.
The decision is all the more significant in that it involved -- as present conditions before the NRC do not -- expiration of a permit in a context of competition for a scarce Federally-owned resource.
In Mass Comunicators, Inc. v. Federal Comunications Comission, 266 F.2d 681 (D.C. Cir. 1959), cert denied, 361 U.S. 828 (1959), the D.C. Circuit
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reviewed an FCC decision involving an untimely application for the renesal of a construction permit under Section 319(b) of the Comunications Act of 1934, 47 U.S.C. 319(b), which is almost identical to Section 185 of the AEA, 42 U.S.C. 2235. Section 319(b) of the Communications Act required that the permit for construction of a radio station specify the earliest and latest construction deadlines and that "said permit will be automatically forfeited if the station is not ready for operation within the time specified or within such further time as the Comission may allow, unless prevented by causes not under control of the [ holder of the pemit]." 266 F.2d at 683. One such holder of a radio station construction pennit failed to file a timely appli-cation for extension. Mass Communicators, a rival enterprise, filed a chal-lenge to the FCC's extension of the permit, alleging that the FCC had to begin new proceedings in which it would have an opportunity to compete for the license.
The FCC refused to require automatic forfeiture of the construction h
permit, even though the extension application was untimely unde regulations which, like the NRC's current regulations, provided for continuation of the permit pending a final determination if a filing was made 30 days prior to expiration of the permit. See Breme-Broadcasting Corp., 3 Fed. M. (P&F) 1579 (1947). Compare 10 CFR 2.109 (1985) with FCC Rule 3.215(b), 10 Fed. Rg.
2006 (1945) [now 47 CFR 75.3534 (1984)]. The D.C. Circuit found that the automatic forfeiture provision in the statute did not leave the FCC powerless to extend the permit, even though the application for extension was untimely filed. 266 F.2d at 684. With re!.pect to Mass Communicators' claim that the I
radio frequency had become available to other applicants, the court fourd that l
"the frequencies are not 'available'... until there occurs an actual forfei-ture, either by abandonment of the permit by the original permittee or by t
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8 adverse -- and valid -- administrative action by the federal Comunications Commission." 266 F.2d at 685.
In essence, Mass Communicators stands for the principle that the auto-matic forfeiture provision of Section 319(b) does not apply until FCC either (1) makes a finding that the cause of the failure to complete construction was "not under the control of the grantee" or (2) affirmatively chooses not to exercise its discretion to extend the construction permit, regardless of the timeliness of the renewal application.
In sum, even after expiration of the permit, the FCC had to act affirmatively in order to complete the forfeiture.
See, e.g., MG-TV Broadcasting Company v. FCC, 408 F.2d 1257, 1261 (D.C. Cir.
1968) ("[I]t is well settled that a construction pemit does not " lapse,"
notwithstanding a failure to abide by its own terms, until the Comissicn declares it forfeited") (citations omitted) (Footnott: omitted).
Section 185 of the AEA, like Section 319(b), provides that the construc-tion permit for a nuclear facility shall include the earliest and latest dates
.for the completion of a facility and that unless construction of the facility is completed by the latest date shown on the permit, "the construction permit shall expire, and all rights thereunder shall be forfeited, unless upon good cause shown, the Commission extends the completion date." 42 U.S.C. 2235. We read section 185 of the AEA to be similar enough to Section 319(a) of the Communications Act to apply Mass Communicators to this case.
First, the requirement of both earliest and latest construction dates is identical.
Second, the forfeiture provisions are essentially identical. Third, neither statute by its terms limits either administrative agency to accepting only applications which are timely filed.
E.g., Mass Communicators, 266 F.2d at.
684-85. Therefore, we hold today that the expiration of the construction permit did not automatically effect the forfeiture of CPPR-126, and that the i
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9 Commission was not then barred from considering TUEC's application for exten-sion of the latest construction date. As a result, a complete g novo con-struction permit proceeding is not warranted.4 III. CASE's January 31st Pleading We now turn to the issues raised by CASE in its January 31st pleading.
First, CASE requests that the Commission assess a civil penalty for unauthor-ized construction between August 1,1985, when the latest completion date in the construction permit passed, and February 10, 1986, when the staff renewed CPPR-126. This request is best handled by the staff under 10 CFR 2.206 after final agency action on TUEC's extension request.5 Second, CASE seeks a definitive order directing the initiation of a new construction permit proceeding and the cessation of all construction at CPSES Unit 1.
We deny the request for a new construction permit proceeding for the reasons discussed in Section II, above. We deny the request for an order to halt construction for the reasons discussed in Section IV in connection with CASE's stay request.6 4This holding is no way absolves the permittee in this case, TUEC, from its burden of showing " good cause" as the statute and NRC regulations require.
We will not prejudge the merits of TUEC's case.
5Although the O.C. Circuit has held that the license does not " lapse" until the Commission takes some affimative action to complete the forfeiture, we do not read this to mean that TUEC was free to continue construction after August 1, 1985, until told to stop. Such an interpretation would render
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meaningless the requirements that construction pemits be obtained and extensions applied for.
10 CFR li 2.109, 50.10.
6 CASE's pleadings ask for a construction halt as a necessary legal
[FootnoteContinued]
10 Third, we dismiss CASE's request for a finding that extension of the construction permit necessarily involves significant hazards considerations.
The Commission has delegated the responsibility for making this finding to the discretion of the staff. See, e.g., 48 Fed. Reg. 14864, 14867 (April 6, 1983). We have reviewed and agree with the staff's finding in the circum-stances of this proceeding. The term "no significant hazards consideratior" is directed to consideration of radioactive hazards that are involved in the amendment extending the construction permit. Here, the grant of the extension results in no substantive change: the design and construction methods will be the same as provided in the original Comanche Peak construction permit. The anendment granting the extension merely gives TUEC more ~ time to complete 1
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construction in accordance with the previously approved construction permit, and thus it involves no significant hazards consideration. The safety issues that CASE seeks to raise in its attack on the staff's finding that the amend-ment extending the construction permit involves no significant hazards consid-eration are more appropriately raised in the ongoing operating license proceeding.7 Finally, CASE correctly notes that it is entitled to a hearing on the construction permit extension. Brooks v. Atomic Enerqy Commission, 476 F.2d i
[ Footnote Continued]
consequence to TUEC's untimely extension request and Staff's allegedly illegal 4
issuance of the extension. Thus, this Memorandum and Order addresses this request only from that perspective.
If CASE has substantive safety reasons for a construction halt, it should submit those reasons in a 10 CFR 2.206 petition addressed to the staff. This Memorandum and Order does not prejudge the submission of any petition based upon safety considerations.
7 Indeed, we read the record before the Licensing Board to indicate that many, if not all, of the allegations CASE seeks to litigate in this proceeding are in fact included in that proceeding.
11 924 (D.C. Cir.1973) (per curiam). Therefore, we refer CASE's request for a hearing to the Chairman of the ASLBP for designation of a hearing board and further proceedings in accordance with 10 CFR Pt.rt 2, Subpart G.
However, the scope of the proceeding is limited to challenges to TUEC's effort n sht,w
" good cause" for the extension. Washington Public Power Supply System (WPPSS Nuclear Projects Nos. I and 2), CLI-82-29; 16 NRC 1221,.1229 (1982).
IV. CASE's Stay Request We turn now to CASE's application for a stay of the immediate effective-
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ness of the Staff's extension of CPPR-126. Our regulations require that CASE meet the traditional stay requirements set forth in Virginia Petroleum Jobbers Association v. FPC, 259 921, 925 (D.C. Cir. 1958) and Washington Metropolitan Area Transit Comission v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir.1977).
Those four standards are (1) likelihood of success on the merits,
,I (2) irreparable injury to the moving party if the stay > not granted, (3) any harmtootherparties,and(4)thepublicinterest. See 10 CFR 2.788(e)
(1985).
Significantly, CASE does not allege that the resumption of constrgction activities at CPSES Unit 1, in and of itself, would constitute irreparable harm to CASE or anyore else.
Instead CASE argues that the irreparable harm results from the NRC's failure to grant CASE a pre-extension hearing on TUEC's request. We disagree. CASE has made no showing that failure to grant it a pre-extension hearing will cause it any harm which cannot (and will not) be remedied in a post-extension hearing or that by such a decision the Commission, is depriving CASE of a "due process" right. The Supreme Court has consist-ently held that unless " fundamental rights" are involved, a prompt post-
12 hearing on an administrative action complies with requirements of "due process." See, e.g., Barry v. Barchi, 443 U.S. 55 (1979); Mathews v.
Eldridge,424U.S.319(1976). We find no such " fundamental right" in the circumstances of this proceeding.
We agree that CASE has an interest in the safe construction of CPSES.
However, in this instance, immediate effectiveness of the construction permit extension has no effect on CASE's interest in safe construction because (1) the plant is essentially complete, and TUEC proceeds with the remair. der of.
construction work entirely at its own risk, (2) what little new construction work remains can be halted at any time if evidence warranting that action becomesavailabletotheNRC,and(3)CASEisassuredofapromptpost-extension hearing to the extent that its request raises proper issues for consideration.
Brooks v. AEC, supra, supports the propositien that allowing construction to proceed does not violate any fundamental due process rights.
In Brooks, I
the Commission extended a construction pennit without making a "no significant hazards considerations" finding. The reviewing court held that this action was contrary to Section 189a of the AEA. However, the Brooks Court allowed c.onstruction to continue, concluding that "[t]he continuing validity of the construction permit is made subject to the outcome of a hearing on this issue." 476 F.2d at 928.
If continued construction pending a hearing may be allcwed in the absence of a t3rmal finding of no significant hazards consid-erstions, a_ fortiori continued construction should be allcwed when the Staff has made a finding of no significant hazards considerations.
Furthermore, hare, as in Brooks, continued construction is subject to the outcome of the extension proceeding.
13 CASE argues that it has a statutory entitlement to a pre-extension hearing under Sholly v. NRC, 551 F.2d 780 (D.C. Cir.), rehearing en banc denied, 651 F.2d 792 (1980), cert granted, 451 U.S. 1016 (1981) vacated and remanded, 459 U.S. 1194, vacated and remanded to the NRC as moot, 706 F.2d 1229 (D.C. Cir. 1983), and San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), vacated in part and rehearing granted in part, 760 F.2d 1320 (D.C. Cir. 1985). We disagree. We read Section 189a(1) to allow the Commission to amend a construction permit prior to the completion of any requested hearing, if we find the amendment involves no significant hazards considerations.O In sum, CASE has neither a fundamental "due process" right nor a statu-tory entitlement to a pre-extension hearir.g. Moreover, CASE has failed to show that a post-extension hearing will not cure any harm it may suffer.
Thus,' CASE has filed to show any irreparable harm, the key factor in'any stay analysis. See, e.g., Wisconsin Gas Company v. FERC, 758 F.2d 669, 674 (D.C.
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Cir. 1985).
Furthemore, CASE has failed to show the probability of success en the merits. We have rejected CASE's arguments that a new construction permit proceeding or a pre-extension hearing is required. Moreover, CASE's pleadings OThe San Luis Obispo case dealt with a situation in which the NRC refused to grant any hearing to the petitinners.
In Sholly, the question before the court was whether the NRC, presented with a request that it hold a hearing prior to issuing a particular amendment to an operating license, could issue that amendment and make it imediately effective upon a finding that it involved no significant hazards consideration.
(The amendment in question had environment.) permitting irreversible releases of radioactivity into th the effect of include an explicit authorization for the NRC to continue issuing such amendments on an immediately effective basis.
14 to this point have failed to demonstrate a high probability of success in cha'llenging TUEC's claim of good cause for the extension. Under Washington Public Power Supply System, supra, CASE's substantive safety concerns about continued construction are inadmissible in a construction permit extension hearing.9 As we noted earlier, these concerns are more appropriately raised either in the operating license proceeding or in a 10 CFR 2.206 petition for enforcement action by the NRC Staff against TUEC.
Finally, CASE does not demonstrate that the other two factors weigh in its favor. A cessation of construction at CPSES Unit 1 may cause significant harm both to TUEC in the form of delay and a possible loss of its trained construction force and to the construction workers at the plant themselves in the form of lost wages and lost jobs. We see no benefit accruing to. CASE from a stay and a pre-extension hearing which would counterbalance this harm to TUEC and its construction workers which a post-extension hearing avoics.
Likewise, any public interest in a pre-extension hearing does not outweigh the pubitc's interest in continued construction efforts on CPSES Unit I while that hearing is progressing.
If the NRC ultimately finds " good cause" for the extension of the construction permit, TUEC will have been needlessly delayed in its efforts to complete the plant.
9Except insofar as we direct the Licensing Board.to follow WPPPS, supra, on the scope of the construction permit extension proceeding, our decision today is without prejudice to the Licensing Board's ruling on the admissibility or the merits of any contentions CASE may present to it.
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15 In sum, the four factors required for a stay of the staff's action are do not justify that action. Therefore, we decline to grant CASE's request for a s tay.
Connissioner Asselstine disapproved this order and provided separate 4
views.
It is so ORDERED.
4 FortheCommfsfon
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g SAMUEL J. y ILK
[ Secretary of the Commission
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SEPARATE VIEWS OF COMMISSIONER ASSEl.STit'E I agree in part and cisagree in part with the Connission's order.
I agree with the Connission's conclusion that we need not grant intervenors a new full-scale construction perr.it proceeding, but I do not subscribe to all of the Cercission's reasoning in reaching that conclusion.
Further, I would have stayed the staff's extension o# the construction perrf+ pending the cutrene of the renewal hearing.
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EDO PRINCIPAL CORRESPONDENCE CONTROL
.FROM:
DUE 03/26/86
~ EDO CONTROL: 001516 DOC DT: 02/28/86 SEN. LLOYD BENTSEN FINAL RFPLY:
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CARLTON KAMMERER FOR SIGNATURE OF:
GREEN SFCY NO: 86-227-EXECUTIVE DIF.ECTOR DESC:
ROUTING:
ENCLOSES LETTER FROM DON DFWITT RE COMANCHE PEAK RMARTIN
-DATE: 03/12/86 ASSIONED TO: NRR CONTACT: DFNTON SPECIAl. INSTRUCTIONS OR REMARKS:
REPLY TO Al.ISTIN TEXAS nFFICE NRR RECEIVED: 03/13/86 ACTION:
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OFFICE OF THE SECRETARY CORRESPONDENCE CONTROL TICKET PAPER NUMBER:
CRC-86-0227 LOGGING DATE: Nar 11 86 ACTION OFFICE:
EDO AUTHOR:
L. Dentsen--Const Ref AFFILIATION:
U.S.-SENATE LETTER DATE:
Feb 28 86 FILE CODE: ID&R-5 Comanche Peak
SUBJECT:
License permit extension on Comanche Peak ACTION:.
Direct Reply DISTRIBUTION:-
OCA to Ack SPECIAL HANDLING: None-NOTES:
.DATE DUE:
Mar 20 86 SIGNATURE:
DATE SIGNED:
AFFILIATION:
cuo --- 001516 Roc'd Off.EDO
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