ML20148S817
| ML20148S817 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 04/15/1988 |
| From: | Newman J NEWMAN & HOLTZINGER, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#288-6072 CPA, OL, NUDOCS 8804200023 | |
| Download: ML20148S817 (11) | |
Text
66 7 *
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!; N Filed:
April 15 l'988 n_,
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3'.
APR 15 886> :
before the coce:n;,3 ATOMIC SAFETY AND LICENSING BOARD Ca7:C61.imtm 6
s m:ct staa
)
w In the Matter of
)
Docket Nos. 50-445-OL
)
50-446-OL TEXAS UTILITIES ELECTRIC
)
COMPANY et al.
)
(Application for an
)
Operating License)
)
(Comanche Peak Steam Electric
)
and Station, Units 1 and 2)
)
)
Docket No. 50-445-CPA MOTION FOR RECONSIDERATION OF THE LICENSING BOARD'S MEMORANDUM AND ORDER OF APRIL 5, 1988 AND REOUEST FOR ORAL ARGUMENT On April 5, 1988, the Atomic Safety and Licensing Board issued a Memorandum and Order denying Applicants' request for consolidation of the operating license dockets and the construction permit docket.
In doing so, we believe that the Board, relying on CASE's description of the two proceedings, did not fully consider the close similarity of the issues in the two proceedings and failed to give any weight to the substantial l
benefits in terms of efficiency and resource allocation, which I
necessarily would accrue to all parties were consolidation l
l ordered.
Moreover, the Board failed to consider the serious potential delays and other adverse effects attendant to a j
schedule calling for consecutive rather than consolidated l
l G80420 PDR 4
000413 0
05000445 PDn T
i
hearings.
Applicants therefore respectfully request, for reasons set forth below, that the Board reconsider 'te decision and order consolidation of the OL and CPA dockets, Discussion 1.
The Parties Should Be Required To Address All Matters In Controversy In One Consolidated Proceedina Before addressing the specific matters discussed in the Board's Order, it should be noted there is no serious disagree-ment that many of the issues in the OL docket are substantially the same as those in the CPA docket.
In its Memorandum and Order, the Board, however, adopted the rationale set forth by CASE in its Answer that "since the object of the OL proceedings is to establish what the mistakes were
. an inquiry into motive and repudiation only makes sense where the mistakes I
have been identified and recognized by admission or Board
{
findings." 1/
Based on this rationale the Board denied Applicants' motion. 2/
Applicants submit that the Board should I
-1/
Memorandum and Order at 2 quoting CASE's Answer To Applicants' 3/8/88 Motion To Consolidate Proceedings at 9.
2/
Applicants do not understand the other two passages from CASE's Answer quoted in the Board's Memorandum as providing any underlying basis for the denial of Applicants' Motion To Consolidate.
The first passage suggests a sketchy alterna-tive procedure for dealing with the CPA docket.
The second passage simply makes the point that the CPA proceeding should be narrow and well focused -- it does not, however, provide any reason why the narrow issue of management motive cannot readily be accommodated, as Applicants and the NRC i
Staff have urged, in the hearing on Contention 5 in the OL l
Docket.
Moreover, it is inconsistent with the third passage which acknowledges that the CPA inquiry extends to both motive and repudiation.
l
reject CASE's rationale for a number of reasons.
Applicants agree that in order for CASE to prevail on Contention 2 it must establish, among other things, (1) that "mistakes" were committed at Comanche Peak and (2) that those mistakes are traceable to some improper corporate policy. 3/
Merely because CASE must establish both of these elements in order to prevail on Contention 2 cannot, for that reason, lead to the conclusion, as CASE would have it, that two separate hearings are required.
Parties to litigation are in virtually every instance faced with establishing a number of necessary and often l
logically connected elements in order to prevail.
It goes too far to suggest, however, that because there are a number of sequential elements which must be established, there must be separate hearings to address each element seriatim.
In essence, CASE's argument that the OL proceeding i
should be used to determine the "mistakes" which were made by l
Applicants as a prelude to litigating Contention 2 relegates the OL docket to a type of discovery proceeding for the CPA docket.
It ignores the fact that CASE has been involved in litigation with Applicants for a number of years and has had more than ample time to determine the "mistakes" it believes were committed by Applicants and designate which of those mistakes it believes are 3/
Of course, CASE must also establish that Applicants failed to repudiate whatever allegedly improper corporate policy existed at Comanche Peak.
attributable to some improper corporate policy. 4/
It is no burden on CASE to be required finally to place in evidence in one hearing all of the facts that it believes supports its Contention 2.
Indeed, requiring CASE to put on its entire case in support of its Contention 2 does no more than impose upon CASE the precise burden it assumed when it first filed Contention 2 in the CPA docket.
Had CASE only been involved in the CPA docket, CASE would have been required to prove all elements of Contention 2 in one hearing.
The fact that Contention 5 and Contention 2 raise virtually the same technical issues is hardly a basis for holding separate hearings -- rather it is a compelling basis for consoli-dating both dockets.
Under the circumstances present here, the resolution of the OL and CPA issues in two separate hearings will result in procedural confusion and inevitable and unnecessary delay.
For l
example, implicit in the Board's Memorandum and Order is the concept that evidence introduced in the OL proceeding will be used to some degree in the subsequent CPA proceeding.
Such a l
l procedure can only lead to serious substantive disputes over the extent to which matters that were addressed or should have been addressed in the OL docket can be relitigated in the CPA pro-4/
Obviously, CASE must have had such "mistakes" in mind as early as its filing of Contention 2 or it would have had no basis for such contention.
It should have properly refined l
its views and determined which "mistakes" were provable during discovery rather than awaiting the conduct of the OL hearing.
Thus, if required to do so by the Board, CASE should be fully capable to identify such provable "mistakes" l
at this time, and thus achieve in a consolidated hearing the "narrow and focused" inquiry into motives it is seeking.
1
ceeding.
The use of consecutive hearings can only lead to attempts to relitigate uatters already encompassed within the OL proceeding under the guise of addressing Contention 2 in the CPA proceeding.
Similarly, absent consolidation, interpretation of the scope of the single Contention admitted in each separate docket will petsist as a source of dispute between the parties.
If two separate hearings are held, the Board will be continually confronted with objections by all parties in both proceedings as to the scope of the proceedings and the relevancy of evidence.
Moreover, separate hearings will strain the resources of all parties and require the repetitive use of witnesses.
- Finally, the delays attendant upon the conduct of two consecutive hearings I
could be substantial because of the time involved in conducting an additional round of prehearing procedures, resuming a hearing and recalling witnesses, filing proposed findings and conclusions and writing a separate decision.
Not only would consolidation minimize disputes as to the scope of matters at issue, the relevant record evidence and the admissibility of evidence, but it would avoid all of the foregoing unnecessary delays in reaching a decision in both dockets.
2.
Consolidation of The Two Proceedings Will Avoid Piecemeal Litigation And Promote Efficiency As explained in Applicants' Motion to Consolidate, Contention 2 in the CPA proceeding consists of two prongs: first, that delays in construction were considered by an improper
.. O corporate policy; and second, that Applicants have failed to repudiate that policy.
In order to prevail on Contention 2, CASE must carry its burden as to both prongs.
Applicants, however, may prevail on Contention 2 by persuading the Board "that their current course of conduct is so correct that it constitutes discarding and repudiating whatever the cause for past delay might have been." 5/
And as the Board and CASE are aware, Applicants have always intended to demonstrate in the OL proceedino, that the present reinspection and corrective actions which they have undertaken -
"their current course of conduct"
-- establishes that they have repudiated whatever allegedly improper corporate policy might have led to past delays.
Based on the Board's Memorandum and Order, however, the parties are now in the anomalous position of addressing in the OL docket the second prong of Contention 2 which is sufficient, in l
and of itself, te lead to the dismissal of the CPA contention and j
thereafter, in a separate hearing, considering the first prong of contention 2 which is a necessary but insufficient basis for sustaining the CPA contention.
This anomaly is made even 5/
Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 & 2), LBP-86-36A, 24 N.R.C. 575, 580 l
(1986).
_7_
more acute by the recognition by the Board and CASE that the OL proceedings will be used, among other things, to develop evidence on the first prong of Contention 2 -- 12g., to identify past "mistakes," and thereafter to conduct a separate hearing regarding whether those mistakes evidence, in CASE's words, a "pattern and practice."
Such a piecemeal and illogical approach to the resolu-tion of the OL and CPA dockets has little to commend it and is contrary to the Commission's policy of achieving expedition in licensing proceedings.
Egg Statement of Policy on Conduct of Licensing Proceedings, 46 Fed. Reg. 28533 (May 27, 1981).. What such an approach will achieve is the inevitable, and, in all likelihood, substantial delay which virtually always accompanies unnecessary hearings.
CONCLUSION Accordingly, for the reasons stated herein as well as those set forth in Appli.: ants' Motion To Consolidate, Applicants request that the Board reconsider its previous decision and order consolidation of the CPA and OL dockets.
Because of the
importance of the issues raised by Applicants' instant motion, Applicants respectfully request that the Board schedule oral argument on these issues.
Respectfully submitted, TEXAS UTILITIES ELECTRIC COMPANY For the Owners of CPSES
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/ Jack R.
Newman
' George L.
Edgar Newman & Holtzinger, P.C.
1615 L Street, N.W.
Suite 1000 Washington, D.C.
20036 202-955-6600 Attorneys for TEXAS UTILITIES ELECTRIC COMPANY April 15, 1988
UNITED STATES OF AMERICA 9
4 NUCLEAR REGULATORY COMMISSIO jf DOccr before the di APRI igage-9 ATOMIC SAFETY AND LICENSING BC nos iYC S
6 SE
}
N In the Matter of
)
Docket Nos. 50-445-OL
)
50-446-OL TEXAS UTILITIES ELECTRIC
)
COMPANY et al.
)
(Application for an
)
Operating License)
)
(Comanche Peak Steau Electric
)
and Station, Units 1 and 2)
)
)
Docket No. 50-445-CPA CERTIFICATE OF SERVICE I, Thomas A.
Schmutz, hereby certify that the foregoing Motion For Reconsideration Of The Licensing Board's Memorandum And Order Of April 5, 1988 And Request For Oral Argument was served this 15th day of April 1988, by mailing copies thereof (unless otherwise indicated), first class mail, postage prepaid to:
- Peter B.
Bloch, Esquire
- B.
Paul Cotter, Jr., Esq.
Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555
- Alan S.
Rosenthal, Esq.
Assistant Director for Chairman Inspection Programs Atomic Safety and Licensing Comanche Peak Project Division Appeal Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission P.O. Box 1029 Washington, D.C.
20555 Granbury, TX 76048
- /
Asterisk indicates sex / ice by hand or overnight courier.
m
.. e
- Juanita Ellis Robert D. Martin President, CASE Regional Administrator,
'1426 South Polk Street Region IV Dallas, TX 75224 U.S.
Nuclear Regulatory Commission William R.
Burchette, Esquire 611 Ryan Plaza Drive Heron, Burchette, Ruckert, Suite 1000
& Rothwell Arlington, Texas 76011 Suite 700 1025 Thomas Jefferson St.,
N.W.
Dr. Kenneth A. McCollom Washington, D.C.
20007 Administrative Judge 1107 West Knapp
- William L.
Clements Stillwater, Oklahoma 74075 Docketing & Service Branch U.S.
Nuclear Regulatory Joseph Gallo, Esquire Commission Hopkins & Sutter Washington, D.C.
20555 Suite 1250 1050 Connecticut Avenue, N. 'J.
- Billie Pirner Garde Washington, D.C.
20036 Government Accountability Project
- Janice E. Moore, Esquire Midwest office Office of the General Counsel 104 E. Wisconsin Avenue - B U.S. Nuclear Regulatory Appleton, WI 54911-4897 Commission Washington, D.C.
20555 Susan M.
Theisen Assistant Attorney General
Environmental Protection Suite 600 Division Washington, D.C.
20005 P.O. Box 12548 Austin, Texas 78711-1548 Lanny A. Sinkin Christic Institute Robert A. Jablon, Esquire 1324 North Capitol Street Spiegel & McDiarmid Washington, D.C.
20002 1350 New York Avenue, N.W.
Washington, D.C.
20005-4798 Nancy Williams CYGNA Energy Services, Inc.
- Elizabeth B. Johnson 2121 N. California Blvd.
Oak Ridge National Laboratory Suite 390 P.O. Box X Building 3500 Walnut Creek, CA 94596 Oak Ridge, Tennessee 37830 David R. Pigott
- Dr. Walter H.
Jordan Orrick, Herrington & Sutcliffe 881 West Outer Drive 600 Montgomery Street Oak Ridge, Tennessee 37830 San Francisco, CA 94111 i
l
F-a.
- Robert A. Wooldridge, Esquire Worsham, Forsythe, Sampels
& Wooldridge 2001 Bryan Tower, Suite 3200 Dallas, Texas 75201
- W.
G, Counsil Executive Vice President Texas Utilities Electric -
Generating Division 400 N.
- Olive, L.B.
61 Dallas, Texas 75201 Jim Bailey, Esquire Texas Municipal Power Agency P.O. Box 7000 Bryan, Texas 77805
/
.1
/
M Thomas A.
Schmutz f7 Dated:
April 15, 1988