ML20151Y777
| ML20151Y777 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 02/11/1986 |
| From: | Roisman A Citizens Association for Sound Energy, TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#186-060, CON-#186-60 CPA, NUDOCS 8602130144 | |
| Download: ML20151Y777 (28) | |
Text
7.7gg,o UNITED STATES NUCLEAR REGULATORY COMMISSION COLMETED USNRC Before the Commission In the Matter of
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T S UTILITIES GENERATING COMPANY,
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Dkt.-gl{J
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(Comanche Peak Steam Electric
-)
Station, Units 1 and 2
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I CASE REQUEST FOR~ STAY OF EFFECTIVENESS OF CONSTRUCTION PERMIT EXTENSION AND FOR OTHER RELIEF INTRODUCTION The Citizens Association for_ Sound Energy (CASE) has pending before the Commission a request for imposition of a fine, suspension of construction activities, and request for a hearing on,the 6-month delinquent coplication to renew the construction permit at the Comanche Peak nuclear station (CASE's request, filed January 31, 1986, hereinafter referred to as "the request").
Texas Utilities Electric Company (TUEC) filed a response on February 4, 1986.
No decision has been issued by the Commission on any of the issues raised by CASE.
Notwithstanding our pending request, on February 10, 1986, the NRC staff reissued the construction permit without notice to
-CASE, and apparently without the Commission's knowledge or
- approval.- (See February 10, 1986, letter from Vincent S.
Noonann to Wm. G. Counsil, TUEC).
In light of Staff's action, CASE requests that the Commission consider the issues raised in its January 31 request 9602130144 860211 PDR ADOCK 05000445 G
PDR b
w and this pleading, on an expedited basis.-
The issues and questions presented to the Commission by CASE on January 31, 1986, are still live issues which require resolution prior to the agency action presumptively taken by the Staff.
> Accordingly we seek from the Commission a stay of the reissuance of the construction permit, an immediate ruling on our
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request for a hearing, and the granting of other relief sought by CASE.
STATEMENT OF THE FACTS On August 1, 1985, the construction permit, CPPR-126, on 1
-Unit 1 of Comanche Peak lapsed.
No request for an extension was filed by TUEC, and work continued at the plant without 2
interruption.
On or about January 28, 1986, a member of the NRC Staff realized that the construction permit for Unit I had lapsed.
The NRC staff-then informed TUEC's vice-president, Michael D.
spence 3
of the situation.
1 CPPR-126 was originally issued on December 19, 1974, with an original expiration date of August 1, 1981 (letter from D.B.
Vassallo, NRC, to Perry G. Britain, TUGCO, December 19, 1974).
On June 19, 1981, TUEC (then TUGCO) requested an amendment to extend the latest date for comletion to August 1, 1985 (letter from R.J. Gary, TUGCO, to Harold Denton,.NRC, June 19, 1981).
That extension was granted on August 30, 1982 (letter from D.G.
Eisenhut', NRC, to R.J. Gay, TUGCO, April 30, 1982).
2 See, generally, record of NRC inspections, audits, meeting summaries, and other regulatory documents from August 1, 1985, to
[
January 1986.
3 Upon information and belief, CASE understands that the discovery of the expired permit.was by the NRC staff, who then l-
'On January 19, 1976, TUEC filed a request for a retroactive extension _with Mr. Harold R. Denton~(January 29_ letter from Wm.
G. Counsil to Harold R.
Denton, NRC).
According to the letter TUEC suspended a portion of the physical on-site construction activities on Unit 1, but did not suspend the ongoing CPRT activities which included " physical corrective actions" (id. at t
5).
On-January 31, 1986, CASE filed a formal request with the Commission for a hearing on TUEC's application to renew its construction permit, as well as for other enforcement action and suspension of construction activities.
(Copies of CASE's pleading were received by TUEC's counsel on January 31, 1986, and hand delivered to the NRC on the evening of January 31, 1986.)
On February 4, 1986, TUEC responded to CASE's request.
Letter from Nicholas Reynolds, counsel to TUEC, to Samuel Chilk, Secretary, NRC.
CASE did not receive a copy of TUEC's response until February 10, 1986.
Nor was CASE notified of the filing by either the NRC staf f or TUEC's counsel.
On February 5, 1986, the NRC staff sent a " Notice of Environmental Assessment and Finding of No Significant Impact" to the Office of-the Federal Register for publication.
A copy was not placed in the mail to CASE until February 10, 1986 (Exhibit
.1) and not received until February 11, 1986.
informed TUEC's President Michael D.
Spence.
C-No notice was provided to CASE by the staff of these actions,.notwithstanding the Commission's regulations and practices of notice to all parties of regulatory actions in 4
contested proceedings.-
On February 10, 1986,.the NRC staff granted the TUEC's request for an extension (letter from Vince Noonan, NRC, to Wm. G.
Counsil~, TUEC).
CASE was not notified of the staff decision L.
'until-late in the afternoon of February 10, 1986, and not provided :with a coy of the order until CASE sent a messenger to 5
get_a copy of the staff's approval on February 10, 1986.
After being notified of the issuance of the amendment on February 10, 1986, CASE contacted the Secretary of the Commission, Samuel Chilk, and requested an immediate vote by the Commission-to issue a stay of the staff's action until the 6
Commission had considered CASE's pending request for a hearing.
Such action was delayed until CASE clarified its request in
- writing.-
It does so with~this pleading.
4 It is relevant to note that the Staff's action was taken in part apparently based on information supplied by the Applicant to the Commission in their February 4, 1986, opposition to CASE's request for hearing, etc.
No other February 4th filing is in our possession.
The staff decision to disregard the pending request-before the Commission could not have been based on ignorance.
5 NRC staff counsel Joseph Scinto, ELD, informed CASE's representative Billie Garde, Trial Lawyers for Public Justice, specifically that no attempt had been made to contact CASE prior to the issuance of th'e permit.
6 Upon information and belief CASE believes that the staff acted without the approval of the Commission in issuing the construction permit.
_4_
ARGUMENT I.
STANDARD FOR A STAY The standards for issuing a stay.in the District of Columbia Circuit are set forth in Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S.
App.
D.C.
- 220, 559 F.2d 841 (D.C. Cir. 1977).
Preliminary relief should be granted when-- (1) the applicant makes a substantial showing that he is likely to prevail on the merits; (2) the applicant will be t
~ irreparably injured unless preliminary-relief is granted; (3) the requested relief will not substantially harm other parties; and (4) 'the public interest favors granting such relief.
559 F.2d at 843.
In particular, with respect to the first factor, "The court is not required to find that ultimate success by the movant is a mathematical probability, and indeed -
may grant a stay even though its own approach may be contrary to movant's view on the merits."
Id.
The Court explained that "a 50 percent plus probability" is " contrary to both the language and spirit"
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of Virginia Petroleum Jobbers v.
FPC, 104 U.S.
App.
D.C.
106, 259 F.2d 921 (D.C. Cir. 1958).
Instead, if there " exists a fair ground for litigation and thus for more deliberative investigation,"
the decision to grant an injunction should be.
based on balancing the equities from the other three factors.
Id. at 844, quoting Hamilton Watch Co.,
206 F.2d 738, 740 (2nd Cir. 1953).
II.
THERE IS A SUBSTANTIAL LIKELIHOOD THAT CASE WILL PREVAIL ON THE MERITS OF ITS CLAIM The issue presented here is whether the Commission should stay the issuance by the 3taff of an extension of the completion date for CPSES without holding a hearing as required by~42 USC 2239.
The central questions are:
1)
Did the construction permit for CPSES expire on August 1,
1985, when TUEC failed to file a request for an amendment to its construction permit to extend the completion date?
2)
Does the expiration of a construction permit for which no request for amendment is filed prior to its expiration require TUEC to file for a new construction permit if it wishes to continue to construct the plant?-
3)
Alternatively, if an amendment to an expired constructionn' permit is a permissible action, did the staff act properly in granting the amendment without holding a hearing on the issue of the existence of a significant hazard consideration
.and the issue of the existence of good cause for the extension request, as specifically requested by petitioner CASE and required by 42 USC 2239?
4)
Alternatively, if the grant of an amendment to an expired permit without holding a hearing is legally permissible, did the staff act properly in this case in holding that the amendment presented no significant hazard and tha t there was good cause shown for. granting the extension of the construction permit.
The first two questions were never addressed by the staff and have been previously briefed by CASE in its filing of January
.31, 1986. 2We incorporate those arguments here and urge that the Commission find that the action taken by the Staff is a nullity 7
-since it seeks to amend a construction permit that doesn't exist.
The actions of the sta f f in approving the requested
. amendment to the expired construction permit without first holding a hearing or even providing an opportunity for a hearing, as requested by CASE, is a blatant violation of 42 USC 2239, which the U.S. Court of Appeals for the District of Columbia CircuitLhas warned woul'd, if it occurred after December 31, 1984, 7
be-presumed to be " bad faith" conduct.
San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1317 (D.C. Cir., 1984),
b rehearing en banc granted in part not relevant here and portion of original opinion vacated, 760 F.2d 1320 (1985).
The law on the need for a hearing on any request to amend a construction is certainly by now unequivocal.
In Brooks v.
Atomic Energy Commission, 476 F.2d 924 (D.C. Cir., 1973) (per curiam), the Court held that extending a construction permit completion date was an amendment within the meaning of 42 USC 2239(a) and that at least an opportunity for a hearing with a 30-day prior notice is required before any amendment can be approved.
In Sholly v. Nuclear Regulatory Commission, 651 F.2d 780 (D.C. Cir., 1980) (per curiam), rehearing denied 651 F.2d 792 (1981), vacated on other grounds 459 U.S.'1194 (1983),
vacated and remanded on grounds of mootness 706 F.2d 122'9 (1983),
7 Although the Staff issued a Federal Register Notice on or before February 4, 1986, CASE was not served with a copy of that notice until at least February 10, when it was mailed to CASE, or February 11, when it was received by CASE (Exhibit 1).
In addition, Staff gave CASE no advance notice of its intent to issue.the amendment although it was fully apprised of CASE's opposition to the amendment having been served, by hand, on January 31 with CASE's request.
It would appear that the staff has sought to " sneak one by" CASE, the public, and even the Commission.
Such " midnight decision-making" most often occurs when the clear light of day would show the full illegality of the action taken.
This is obviously such a case.
the court held that any amendment to an NRC-license requires
, notice and opportunity for a hearing and, if requested, a hearing, including _a hearing on whether a significant hazard 8-consideration'is presented.
Finally, in San Luis Obispo Mothers for Peace v. NRC, supra, the court made unmistakenly clear its intent that from that point forward no amendmen't to extend the date of a Commission license I
could be approved without firrt providing a notice and 9
opportunity for a hearing ao
,'if requested, a hearing.-
The court rejected arguments that only amendments which had a
" substantive purpose" required a hearing, that the existence of an ongoing hearing where the issues sought to be' raised could be raised was a substitute for the -requirement, that a hearing be held before the amendment is approved, and that the opportunity to seek to reopen the record is a substitute for a right to a 8
When Congress enacted the so-called Sholly Amendment to 42 USC 2239, it significantly only relieved the Commission of the duty to offer, and if requested hold, a hearing prior to issuing amendments to an operating license.
The amendment by its terms leaves the hearing requirement for the construction permit amendment as it stood following the Sholly decision.
9 The claim by TUEC, blindly accepted by the staff, that all construction has been completed at CPSES is patently absurd.
TUEC, coqpleted what it believed was required for construction in 1985.
The. Staff itself found this construction substantially inadequate.
- See, e.g.,
SSERs 7, 8,
9, 10, and 11.
The inadequacy included more than procedural niceties but documented deficient conditions in hardware requiring substantial reconstruction activities.
The present CPRT has already
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identified over 1,000 previously undetected construction deficiencies.
The ASLB has preliminarily held that the plant design OA/0C was substantially deficient.
Applicants have established a massive program to initiate a complete rework following CPRT investigations.
CPSES is not fully constructed and is a long way from completion.
- Note, e.g.,
the staff caveats about the expected completion date for CPSES in their statement approving the requested amendment.
-g-
hearing.
In the last analysis, the court declined to grant the revocation of the illegally approved license extension becauselof conditions which inherently inapplicable here, i.e.,
that the Commission may not have know that a hearing was required.
In language particularly relevant'to the staff conduct here, the court warned as follows (751 F.2d at 1316-17):
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Our conclusion that.the Commission acted unlawfully in denying petitioners a hearing itself constitutes one particularly powerful form of judicial relief:
it clarifies the scope of section 189(a), thereby making it less likely that the Commission will violate that provision again.
At the time the Commission extended PG & E's license there existed a paucity of federal case law explicating the relationship between section 189(a) and the reopening option.[ footnote omitted]
The Commission's legal error, therefore, may well be attributable to the lack of clear judicial guidance and not to a deliberate desire to deny petitioners their rights.
Our holding today that consideration of a request to reopen the record does not satisfy the requirements of section 189(a) should preclude such Commission error in the future.
In the unlikely event the Commission repeats its mistake, this court would have no choice but to presume bad faith in the part of the Commission and act accordingly.
Because the staff has issued the license amendment without any opportunity for hearing and has in effect denied CASE's request for a hearing, the action of the staff is in direct conflict with the relevant law.
Thus there is a near certainty that CASE. will prevail on the merits of this issue.
As an alternative argument to find the staff conduct illegal, we direct the Commission's attention to the Staff attempt to justify its action here.
The staff states that " good cause" exists because.the construction deficiencies identified by the staff-in 1985 were not foreseen in 1982 when the last extension was granted..In fact, as we noted in our request, the applicants 'nd the staff already had been warned by NRC a
investigations'and company audits that QA/QC was not being properly implemented.
The logical consequence of those consistently noted inadequacies is that construction defects I
would event'ually surface and they did.
Applicants are in the present. predicament through their own obstinate refusal to listen to the.NRC staff and their own auditors for nearly 10 years.
As CASE has argued previously.in its January 31 filing, whatever.else the good cause showing requires it must include the issue of whether appl.icants' need to continue to work on the plant'is caused by its own incompetence and disregard for 10
-Commission requirements.
The present extension arises exclusively because TUEC has not competently built CPSES and because TUEC management lacks the character and commitment te obey _the NRC requirements for constructing this plant.
Curiously, in arguing that at least a 3-year extension is reasonable because of the possibility of new matters and new allegations arising which in light of the history of the proceeding it is reasonable to anticipate (Staff Extension' 10 At.an oral argument in Houston Light and Power (South Texas),
Dkt. Nos. 50-498-OL & 50-499-oL, an Appeal Board member made the point that once a construction permit is issued management's character and competence to construct a nuclear plant, one of the issues we are pressing here, can only be heard as part of the attack on good cause in a request to extend the construction permit completion date.
Transcript of oral Argument, 12/13/84, pp. 14, 23-4.
(See Exhibit 2.)
k Evaluation, p.
2), at the same time in the Environmental Assessment (issued 2/5/86) the Staff purports to know with confidence that the scope of the rewerk activities will not be sufficiently broad to disturb the environment and characterizes them as " equivalent to those of a maintenance or repair program."
Id. at p. 3.
This internal inconsistency merely underscores the extent to which the Staff is stretching and distorting the facts
)
to be able to issue the requested extension.
The Staff asserts, without any reasoning, evidence or law to support its position, that the requested extension involves "no significant hazards consideration."
Staff Order, p.
2.
Not only does this unsupported conclusion violate the legal requirement for an agency to clearly articulate the basis for its decision (Brooks v. AEC, 476 F.2d 924, 926'(1973)), but in fact here there are numerous significant hazards considerations raised by CASE in its January 31 filing and not addressed by the Staff.
We h'ere reassert and incorporate by reference those arguments along with the accompanying appendices and record citations.
Finally, in concluding that there was no significant environmental impact associated with the extension, the staff assumed, contrary to its own publicly announced view, that it could~ reliably predict the scope of the reinspection and rework effort.
Staff Environmental Assessment, pp.
2-4.
This assumption flies in the face of the of ficial staf f view that there has been a system-wife failure of the QA/QC at CPSES (SSER 11, p. P-35) and that it has not even approved the CPRT Program Plan and all present work is at TUEC's risk (Transcript, TUGCO meeting with NRC, December 18-19, 1985, pp. 59-60).
It is also inconsistent with applicants' claim that it would conduct a thorough reinspection effort and complete whatever rework was required and at that point' unpredictable.
(Applicants' Current Management Views, 6/28/85, pp. 6-7.)
The underlying allegations regarding the failure of the construction.progran reach virtually every aspect of plant construction including concrete, reactor l
pressure vessel, and containment.
Should any of these-allegations be found valid, major reconstruction effort would be required.
In addition, the staff assumption in the Environmental Assessment that the cost of halting CPSES construction rather than continuing would cost ratepayers too much money and power is without any adequate basis in the record.
At this point the added cost needed to complete CPSES far exceeds the original estimated cost used in the original Environmental Impact Statement.
Studies done for other power plants have disclosed
-that the soaring construction costs of such plants coupled with the opportunities for substantially less expensive load management and energy conservation measures can make cancellation 11 more economic than continued.constructicn.
This is particularly 11 See, generally, Braidwood,-Illinois Commerc. Commission Dkt.#82-0855, Business and Professionals in the Public Interea',
Exhibit 12, "Least Cost Electrical Services as an alternative to the Braidwood Project." (Shows a net present value savings of at least S3.2 to 7.0 billion (1984 dollars) from abandoning a 2.24 gigawatt 2 unit nuclear reactor project whose "to-go" capital costs is $0.7 to 1.0 billion (1984 dollars), and buying and using efficiency products instead.
An extensive supporting record in petitioners' brief and reply brief confirmed the conservatism of this result.
See, also, A.B.
Lovins, on behalf of the City of Houston, "Least-Cost Alternat'ives to the Malakoff Lignite Plant," prepared for Docket #5779 and filed t
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true for nuclear plants where, as here, a.ubstantial additional 12 cost is required to complete construction.
For the purpose of the argument _here, we need only demonstrate, as the above discussion does, that if the staff has no evident' basis for a conclusion that is essential to its action, then the action is illegal.
The staff assumes without any articulated basis that I
there is still a need for the power from CPSES and the cost of abandonment will outweigh the cost of completion.
The Staff is not entitled to make this assumption.
III.
PLAINTIFFS, AND THE PUBLIC, WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF A PRELIMINARY INJUNCTION A.
Plaintiffs Will Be_ _ Irreparably Harmed in the Absence of a_ Preliminary Injunction The D.C. Circuit has held that the degree of injury-necessary to establish irreparable harm depends on the facts of each case and a balancing of all the equities.
Virginia Petroleum Jobbers Ass'n v.
FPC, supra.
Irreparable harm has been found when fundamental constitutional rights are deprived.
Lower Alloways, 481 F.Supp.
at 454; Fitzgerald v. lla mp ton, 152 U.S. App.
D.C.
1, 467 F.2d in the ten year statewide load forecast proceeding.
P.U.C of Texas, January 1985 (describes cheap alternatives to savings on Houston Power and Light power systems).
12 Comanche Peak was expected to cost $712,000,000 when announced in 1972; the estimate increased to $3.9 billion in 1984; and to over SS billion n 1985.
See, generally, information on Comanche Peak from the Department of Energy Nuclear Power Plant Under Construction Task Force, briefing of Ur.dersecretaryu of Energy, from Gordon L. Chipman, Jr.,
Director, Task Force, October 10, 1984, and Ft. Worth Star Telegram, Aug. 30, 1985.
~13-
755, 768 (D.C.Cir. 1972).
The denial of due process rights insuring'a fair hearing is irreparable harm sufficient to support an injunction.
Amos Treat, 306 F.2d at 267 (D.C. Cir. 1962);
Heublein, Inc. v. FTC, 539 F.Supp. 123, 128 (D.C. Conn. 1982)
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(deprivation of Fifth Amendment due process rights is irreparable injury).
Cuomo v. Nuclear Regulatory Commission, No. 84-1264, slip. op. at 4-5, (D.D.C. April 25, 1984).
The error must be significant.
As the Court explained in Cuomo, "To come within the purview of Amos Treat, plaintiffs must demonstrate something more than a mere procedural irregularity, subject to review upon the whole record at the conclusion of the proceeding; the asserted infirmity must be fundamental."
Id.
(citt. ions omitted).
Here the violations are fundamental, be-cause the right to a hearing is firmly established by the statute.
In Cuomo, plaintiffs /intervenors alleged that a deprivation of due process rights had occurred when the Atomic Safety and Licensing Board ("ASLB") failed to provide adequate time for preparation for a hearing.
The Comission upheld the ASLB ruling, and the District Court found that action violative of due process rights secured by the Constitution, and granted the temporary I
restraining order sought by plaintiff /intervenors.
Cuomo, supra.
I Cuomo is applicable in the instant case, save for the fact that the due process infringement here is even more severe.
The i
NRC staff's action and the Commission's inaction effectively i
abridge CASE's constitutionally protected Fifth Amendment rights to due process of law, and in addition deprive CASE of its 4
statutory right guaranteed by 42 USC 2239.
In Zotos Int'l v.
I i
1 i
~
. Kennedy, 560 F.Supp. 268, 274 (D.D.C. 1978), the court held, "the essence of due process is the requirement that a person in 5
jeopardy of serious loss [be given] notice of the case against him and the opportunity to meet it."
Quoting Matthews v.
Eldridge, 442 U.S.
319, 324 (1976).' See Walter Holm & Co.
v.
Hardin, 449 F.2d 1009, 1016 (D.C. Cir. 1971) ("what counts is the l~
reality of an opportunity to submit an effective presentation to assure that [the decisionmakers] will take a hard look at the problems.").
CASE has been an accepted intervenor before the ASLB for 8 years, and has filed a brief before the-Commission a week and half prior to the Staf f's unlawful action of granting the construction permit.
.Before the Commission answered our request for a hearing, and without notice or opportunity to intervene, the Staff granted the applicant's motion to amend a construction permit whose viability was at best questionable, and at worst, nonexistent.
Thus, under the tests laid down in Cuomo, Amos Treat, Heublein and Lower Alloways Creek, CASE has met its burden of proving irreparable injury due to the deprivation of 1
Constitutional and statutory rights.
Now we turn to the third part of the test for the issuance of a stay.
l B.
Granting Relief Will Not Substantially Harm Other Parties Since CASE merely seeks compliance with the established law i
for NRC statutory require: rent for hearings, any adverse impact felt by the utility is anticipated as part of the process and
'therefore immaterial.
In addition, in this case Applicants cannot claim any right to continue construction and reinspection activities since the actions are being taken without any staff approval of the CPRT Program Plan or rework plan.
As the Staff has told the Applicants in a public hearing, "again'we will repeat that in every public meeting -- you are proceeding at your own risk, and
)
we want to be sure that we're going to have this program plan approved before, truly, anything about implementation has any meaning, because right new it has no meaning because there is no plan that the staff has approved yet."
TUGCO Meeting with the-NRC, CPRT Monthly Status, Dec. 18-19, 1985, p.
59.
In effect, the NRC.has told the utility that undertaking the construction of a nuclear plant subjects the utility to the full spectrum of rules and requirements, a violation of which could ef fectively result in a denial to operate the plant.
One risk which TUEC has assumed is that construction will be halted because it or the staff hav.e acted illegally.
C.
Granting Relief Is In the Public Interest The public interest is best served by requiring agencies-to adhere to their own enabling statutes and implementing regula-tions and to accord Plaintiffs their fundamental due process rights.
Congress has mandated that a permit process is required before a utility is allowed to undertake construction of a nuclear power plant for a very important reason.
The tremendous hazards and dangers inherent in the nucioar power process mandate that an applicant be technteally competent and morally willing to obey the strict requirements and rules laid down by the NRC.
CASE is prepared to present conclusive evidence that the utility is in abrogation of the requirements.
Assuring the right to present this evidence is clearly in the public interest, and
.therefore satisfies the final requirement for a stay.
III.
CONCLUSION
)
In our_ filing of January 31 we already identified substantial and important issues which should be addressed in deciding whether to extend the construction permit for this plant.
The issues relate both to whether Applicants have a good cause for their failure to previously complete construction (given that it was caused by their incompetence and refusal to follow Commission regulations and warnings from the staff and outside auditors) and whether the proposed extension raises significant hazards considerations because the record now available reveals that Applicants do not have the competence and technical qualifications at numerous upper management levels and supervisor levels (all of whom have remained at CPSES for many years) to continue construction of this plant nor do they have the character and commitment to comply with the Commission regulations.
In short the basis for the original construction permit issuance no longer exists and provides no support for continued construction.
New hearings and new findings must be made on these issues to decide whether to allow continued construction of CPSES by TUEC.
The Staff by issuing the requested amendment to the expired construction permit without notice and opportunity for hearing and in the face of an explicit CASE request for a hearing, has blatantly violated the clear letter and spirit of the Atomic Energy Act.
In addition, the
-staff's conduct is a comlete nullity because the construction I
permit expired on August 1, 1985, and only.if a new construction permit application is filed and granted can any construction continue on CPSES.
The action taken by the Staff seriously infringes the
)
constitutinal and statutory rights of CASE to due process of law.
Applicants have no adverse impact from issuance of the stay since even if they legally had the right to continue construction
-activities at CPSES the fact that the staff has not _ approved the CPRT Program Plan, much less the rework plan, means that all work conducted by TUEC is at its own risk and not fairly included as a lost benefit to them if this stay is granted.
p-For all the reasons here, in our January 31 filing, and in the relevant materials attached and incorporated by reference, we urge the commission to stay the effectiveness of the construction
~
permit extension, require TUEC to file a new application for a construction permit, and follow all requirements of 42 USC $2239 or alternatively order that hearings be held on the questions of
-good'cause and significant hazards consideration as proposed by
}-
CASE prior to any decision on whether to grant the construction permit extension.
Respectfully submitted, o
./
_ f i
'1 l
' % ' <., w c
. ANTHONY Z.
ROISMAN/
l Trial Lawyers for Public Justice 2000 P Street, NW, #611 Washington, D.C.
20036 (202) 463-8600 Counsel for CASE Assisting third-year Antioch Law students:
Billie P. Garde Trial Lawyers for Public Justice Tom Carpenter Government Accountability Project Dated:
February 11, 1980 w.,
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EXIIIBIT TWO U1611ED STATES NUCLEAR REGULATORY COMMISSION 1
I IN THE MATTER OF:
DOCKET NO:
)
HOUSTON LIGHTING AND POWER COMoA!!Y, 50-498-OL 50-499-OL et al.
(South Texas Project, Units 1 and 2)
CRAL ARGUMENT i
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LOCATION: BETHESDA, MARYLAND PAGES: 1 -
116 DATE:
THUPSCA', DECEMBER 13, 1994 f/0f
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MR. MOOR":
You are arguing this in the context of 2
an operating licensing proceeding, attacking the character 3
and the competence of the applicant.
I'm a bit curious why, 4
when the applicant applied for an extension of the 5
construction permit, where good cause has to be shown on why
)
6 the construction permit time can be extended, you didn't 7
challenge on the basis of good cause.
8 Your premise essentially is that they shot 9
themselves in the foot and I would think that you would have 10 a reasonable argurent to make that cannot te good cause.
11 I'm curious why you didn't, in seeking a hearing, raise the 12 issue in the construction permit extension.
13 MR. SINKIN:
It's a matter of resources.
We are a e
14 typical intervenor and we have no money.
I'm $30,000 in 15 debt personally, primarily because of this case.
I didn't 16 see that fighting the construction permit extension would be 17 any different than the argument we would be making here 18 today, and on up the road on license.
19 MR. MOCRE:
You do concede goed cause is 20 considerably different than character and competence?
21 MP. S INi. I N :
We felt we had already made cur case 22 in the licensing hearing for license dental.
And someday 23 the license will be denied and starting a whole new 24 proceedinn and trying to raise the renources to act 25 witnesses and put on a case was just too ruch to handle.
~
2 22 22 10 i
c '; ' t c 1
deniable grcunci all by itself.
Ar i r.s t ead o f der.yi nc c:.
d 2
the grounds of that inexperience ano their failure to
!W 3
correct it, the Atomic Safety and Licensing Board finds that l
I
'I 4
to be i
lid 5
MR. MCORE:
Corpetence is not a term that's in D
6 either the Cormission's regulations or the Atomic Energy 7
Act.
Is that correct?
- e 8
MR. SINKIN:
To the best cf r.y knowledge, yes.
9 MR. MCORE:
And it's really a shorthand i
l 10 conpilation cf essentially the cencept of an arpilcant be:nc i
11 able to reet all of the Cor:1ssion's regulations.
12 Is that a fair statement as to what the corpetence I
13 really is?
1 l
14 MR. SINKIN:
It's a little narrower than I woul!
l l
15 go.
Even if the Conmission's regulations didn't require necessary for the health and safety of 16 something but it was
'+
17 the public, I would want them dcing it anywsy.
l 18 MR. MCCRE:
Screwhere within the Corr i s s i c n *c
~
19 regulaticns, as tread as they are, : think all of that
.s i
20 encorpassed.
I 21
':w
_f that*s the case, i:.e n ! ccre hac, t-t
.c I
22 peint I raised earlier.
These th.nas, a failure to reet l
23 during a ;..nsinc process sore asrect of the Corr i s s a c r. ' r I
24 r enu l a t ic:is are things that the Cc.- 1 s s 1 c r4 regular; rer its 25 to be rere i;e t, to brina people artt corp 11ance r e c a u r. +
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perfection is not the standard by which the Conmission 2
judges applicants.
3 That being the case, once again, can't all of the 4
so-called defects or errors that you allege be remedied?
5 And the only part of the regulations with which I 6
am familiar that doesn't permit remedy to come into play is
)
7 a construction permit extension where an applicant has to 8
demonstrate good cause for not having completed construction 9
within the timeframe of the original permit.
10 And that is a statutory cutoff.
The Atomic Energy 11 Act requires the permit to be revoked unless e: tended for a 12 good cause.
Having missed that opportunity to make that 13 argument, aren't you really now trying to take your good 14 cause standard and put it into the competence standard?
15 MR. SINKIN:
I don't believe so.
And, of course, 16 that's in your hands to decide.
But we feel that a company 17 that knowingly hires an inexperienced contractor when they 18 themselves have no experience, and then year after year see 19 that contractor fail to perform and then, seven years after 20 hiring then and still have then on the job, that's it.
21 That says everything you need to knew a t:c a t tha-22 company.
Imagine them operating a nuclear power plant.
23 They have hired inexperienced operators, untrained 24 operators.
They know they're untrained.
They don't put 25 mecha r.15
.r. In place to monitor them effectively and knew how
00tKETED February 11, IgggRC UNITED STATES OF AMERICA gg gg jg gg:4j NUCLEAR REGULATORY COMMISSION FFICE CF 5hkan 7 Before the Commission KEI B
C In the Matter of
)
)
TEXAS UTILITIES GENERATING
)
)'
COMPANY, et al.
)
Docket Nos. 50-445-OL
)
and 50-446-OL (Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
4 CERTIFICATE OF SERVICE By my signature below, I hereby certify that true and correct copies of CASE's Request for Stay of Effectiveness of
' Construction' Permit Extension and for Other Relief have been sent-to the names listed below this lith day of February 1986, by:
Express mail where indicated by *; Hand-delivery where indicated by **; and First Class Mail unless otherwise indicated.
Administrative Judge Peter B.
Bloch
.U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Herbert Grossman Alternate Chairman ASLB Panel U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Kenneth A. McCollom, Dean Division of Engineering, Architecture and Technology Oklahoma State University Stillwater, Oklahoma 74074 Dr. Walter H. Jordan Carib Terrace Motel 522 North Ocean Blvd.
-Pompano Beach, FL 33062 i
i.
Ellen Ginsberg, Esq.
'U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Robert A.-Wooldridge, Esquire Worsham, Forsythe, Sampels
& Wooldridge 2001 Bryan Tower, Suite 3200 Dallas, Texas 75201 Nicholas Reynolds, Esquire *
- Bishop, Liberman, Cook, Purcell & Reynolds 1200 17th Street, N.W.
Washington, D.C.
20036 Stuart Treby, Esquire **
Geary S. Mizuno, Esquire Office of Executive Legal Director U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 D' cketing & Service Section **
o
-Office of the Secretary U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Renea Hicks, Esquire Assistant Attorney General Environmental Protection Division Supreme Court Building Austin, Texas 78711 Mrs. Juanita Ellis President, CASE 1426 S.
Polk Dallas, Texas 75224 Mr. W.G. Counsil Executive Vice President Texas Utilities Generating Co.
Skyway. Tower, 25th Floor 400 N. Olive Street Dallas, Texas 75201
f
.Mr. Roy P. Lessy, Jr.
Morgan, Lewis & Bockius 1800 M Street,' N.W.
Washington, D.C.
20036 Mr. Thomas G. Dignan, Jr.
Ropes.& Gray 225' Franklin Street Boston, Massachusetts 02110 Alan'S. Rosenthal, Chairman Atomic. Safety and Licensing Appeal Board
)
U.S. Nuclear. Regulatory Commission Washington, D.C.
20555
-Dr.
W.' Reed Johnson Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatcry Commission
-Washington, D.C.
20535 Thomas S. Moore, Esq.
Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.
C.
20555
-Nunzio Palladino, Chairman *
- U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
-Lando Zech, Commissioner *
- U.S. Nuclear Regulatory Commission Washington, D.C.
-20555
' James Asselstine, Commissioner *
- U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Frederick Bernthal, Commissioner **
U.S.' Nuclear Regulatory Commission o
Washington, D. C._
20555 t
. Thomas. Roberts, Commissioner **
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 e
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ANTHONY Z. /OISMAN ~
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