ML20197G801
| ML20197G801 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 05/12/1986 |
| From: | Dignan T ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20197G771 | List: |
| References | |
| 86-528-02-CPA, 86-528-2-CPA, CPA, NUDOCS 8605160409 | |
| Download: ML20197G801 (42) | |
Text
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. N UNITED STATES.0F AMERICA NUCLEAR REGULATORY COMMISSION i}
before the i SAY 16 fob "f,)
d ATOMIC SAFETY AND LICENSING APPEAL BOARD ,
, \ 't 2
) ,
In the Matter of ) N. .-
)
TEXAS UTILITIES ELECTRIC )
COMPANY, et al. ) Docket No. 50-445-CPA
/ )
(C'oManche Peak Steam )
Electric Station, )
Unit 1) )
)
ON APPEAL FROM THE SPECIAL PREHEARING CONFERENCE ORDER (ASLBP NO. 86-528-02-CPA)
OF THE ATOMIC SAFETY AND LICENSING BOARD ISSUED MAY 2, 1986
! BRIEF OF APPLICANTS-APPELLANTS 1
Robert A. Wooldridge Nicholas S. Reynolds WORSHAM, FORSYTHE, SAMPLES William A. Horin
& WOOLDRIDGE BISHOP, LIBERMAN, COOK, 2001 Bryan Tower, Suite 3200 PURCELL & REYNOLDS Dallas, TX 75201 1200 Seventeenth Street, N.W.
(214) 974-3000 Suite 700 Washington, DC 20036 (202) 857-9800 Roy P. Lessy, Jr. Thomas G. Dignan, Jr.
MORGAN, LEWI,S & BOCKIUS R. K. Gad III 3800 M Street, N.W. ROPES & GRAY Mashington, DC 20036 225 Franklin Street i
(202) 872-5000 Boston, MA 02110 (617) 423-6100 Counsel for Applicants-Appellants 8605160409 860512 PDR ADOCK 05000445 G PDR
TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................. iii STATEMENT OF PRIOR PROCEEDINGS AND FACTS ................ 1 ARGUMENT ............................................... 17 I. THE DECISION DIRECTLY CONTRAVENES ONE OF THE PRINCIPLES LAID DOWN BY THE COMMISSION IN CLI-82-29 ................ 17 II. IF UPHELD, THE LICENSING BOARD'S REASONING AS A PRACTICAL MATTER VIRTUALLY ASSURES AN ADJUDICATORY PROCEEDING IN ANY CONSTRUCTION PERMIT EXTENSION PROCEEDING WHEREIN INTERVENTION IS SOUGHT ................ 25
, III. EVEN IF ONE ACCEPTS THE LICENSING l
BOARD'S INTERPRETATION OF CLI-82-29 I
THERE STILL WAS NO SHOWING OF BASIS BY THE INTERVENORS ............................ 26 A. THE DOCUMENTATION SUPPOSEDLY SUPPLYING THE BASIS WAS NOT l SUFFICIENTLY PARTICULARIZED .............. 26 B. EVEN ASSUMING THAT THE ORAL REFERENCES TO DOCUMENTS ATTACHED TO THE JANUARY 31, 1986 PLEADING OVERCOME SPECIFICITY OBJECTIONS, THE DOCUMENTS i i
STILL DO NOT' SUPPLY SUFFICIENT BASIS ......................... 28
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IV. THE DECISION IS INCONSISTENT WITH THE RELIEF REQUESTED ..................... 32 Introduction .................................. 32 A. IF THE BOARD CONSIDERS ITSELF IN A POSITION TO BE ABLE TO IMPOSE THE REQUESTED CONDITIONS, IT IS EXCEEDING ITS AUTHORITY ............................ 34
-i-
B. IF THE BOARD DOES NOT PROPOSE TO ENTERTAIN THE QUESTION OF CONDITIONS, BUT RATHER ONLY THE GRANT OR DENIAL OF EXTENSION, IT IS ENTERTAINING A REQUEST NOT MADE BY THE INTERVENORS .............. 35 l
C0NOLUSION ............................................. 36 i
r i
s
.; .ii_
TABLE OF AUTHORITIES Cases Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419 (1980) ........ 34 Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2),
! ALAB-804, 25 NRC 587 (1985) ........................ 27 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1)
CLI-86-04, 23 NRC , CCH Nuc. Reg.
Rep, t 30,956 (March 13, 1986) ................... 2, 35 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), LBP-86 _,
23 NRC (May 2, 1986) (the Decision) ..... 12-15, 17 24, 26, 33 Union Electric Co. (Callaway Plant, Unit 1), ALAB-740, 18 NRC 343 (1983) ............... 25 t
t Washincton Public Power Sucoly Systems (WFPSS Nuclear Projects Nos. 1 and 2),
j CLI-82-29, 16 NRC 1221 (1982) ............ 17-20, 22-26 28, 29, 30, 32 i
Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546 (1983) .............................. 19, 28 Regulations 10 CFR $ 2.206 ......................................... 7 10 CFR $ 2.714 ......................................... 28 10 CFR $ 2.714a ........................................ 17
-iii-t
l I
l UNITED STATES OF AMERICA
]
NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of )
)
. TEXAS UTILITIES ELECTRIC ) Docket No. 50-445-CPA COMPANY, et al. )
)
(Comanche Peak Steam )
Electric Station, Unit 1) )
) ,
)
ON APPEAL FROM THE SPECIAL PREHEARING CONFERENCE ORDER (ASLBP NO. 86-528-02-CFA)
OF THE ATOMIC SAFETY AND LICENSING BOARD ENTERED MAY 2, 1986 i
l %
BRIEF OF APPLICANTS-APPELLANTS STATEMENT OF PRIOR PROCEEDINGS AND FACTS
~
As stated by the Commission, "This case arises from a regrettable and wholly avoidable omission by the Texas j Utilities Electric Company (TUEC) . . . ." Texas Utilities Electric Co. (Comanche Peak Steam Electric. Station, Unit 1),
1 l
' l CLI-86-04, 23 NRC , CCH Nuc. Reg. Rep. 1 30,956 l t
I
~ 4 ,,-.,,m2. . . _ . _ . , . - - - - , . . . _ . .<.--.i, ,r v e.e 4--,, e . - - -,,
(March 13, 1986) (Slip. Op. at 1) (hereafter "CLI-86-04" and cited to the slip opinion). The cmission referred to was the failure of TUEC to file for an extension of the last date for completion of construction set forth in Construction Permit CPPA-126, as amended, for Comanche Peak Steam Electric Station Unit No. 1 (CPSES No 1) until almost six months after that date (August 1, 1985) had passed.
In any event, on January 29, 1986, TUEC did file a request for extension. Letter, William G. Counsil to Harold R. Denton (Jan. 29, 1986) (hereafter referred to as
" Applicant's Request" and cited " App. Recuest"). Therein, in conformity with 10 CFR 9 50.5S(b), the applicants described the " good cause" for issuance of the requested extension as follows:
" Physical construction on Comanche Peak Unit 1 was essentially completed in early 1985. However, major efforts to reinspect and reanalyze various structures, systems, and components have been ongoing since the fall of 1984 in order to respond to the questions raised by the NRC Staff's Technical Review Team
('TRT'), by the Board and parties in the ASLB operating license proceedings, and raised by other external sources. The TRT was formed by senior NRC Staff management in March of 1984 to consolidate and carry out the various reviews necessary for the Staff to reach its decision regarding plant licensing.
Applicants formed the Comanche Peak Response Team and submitted a Program Plan to respond to the TRT's questions, the ASLB issues, and the other external sources issues. That Plan is presently being implemented. It is anticipated that such implementation will not be
t complete before the second quarter of 1986. -
" Based upon the foregoing, Applicants submit that the delay which necessitates the construction permit extension was not the result of dilatory action by Applicants; that is, there was no e intentional delay of construction without a valid purpose. Matter of Washington Public Power Supply System (WFPSS Nuclear Project No. 1), ALAB-771, 19 NRC 1183, 1189 (1984); Matter of Washingten Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, 553 (1983). Further, the ultimate good cause finding should
' encompass a judgment about why the plant should be completed and is not to rest solely upon a judgment as to the applicants' fault for delay.' ALAB-722,
, 17 NRC at 553.
"It scarcely bears mention that Applicants here have not delayed placing i Comanche Peak Unit 1 in operation intentionally without valid purpose.
The delay has been necessitated by the performance of the reinspections and reanalyses described above. Obviously, Applicants would not delay operation of Comanche Peak Unit 1 any longer than is necessary to demonstrate the safety of the plan to their own satisfaction and that of the NRC." Request at 1-2.
f Two days later, on January 31, 1986, Citizens Association for Sound Energy (CASE), an intevenor in the ongoing operating license proceeding for CPSES No. 1, filed with the Commission a " Request for Imposition of Fine, for Suspension of Construction Activities, and for a Hearing on Application to Renew Construction Permit" (hereafter " CASE Request"). Therein, CASE sought to have the Commission impose a fine for construction during the period August 1, s
1985 to date, order an immediate halt to all construction activity at CPSES No. 1, rule that the holding of an entire new construction permit proceeding was required before work could continue, determine that significant hazards consideration existed in any extension, and require a hearing before a Licensing Board on the request to extend the construction permit. CASE Request, passim; CLI-86-04 at 2.
On February 4, 1986, the applicants filed with the Secretary of the Commission a letter in the nature of a reply to the CASE Request. Letter, Nicholas S. Reynolds to Samuel J. Chilk (February 4, 1986). Therein, inter alia, the applicants restated their belief that " good cause" had been shown:
"The ' good cause' test in CLI-82-29 is clearly satisfied in this case.
Physical construction of Comanche Peak Unit I was essentially complete by early 1985. However, reinspection, analyses, and corrective actions with respect to work already completed began as early as the fall of 1984 in order to respond to questions raised in the course of NRC staff review, as well as issues raised by the Board and the parties in the operating license proceeding before the Licensing Board. Both NRC Staff review and operating license proceedings before Licensing Boards are an integral part of the licensing scheme under the Atomic Energy Act. It is the responsibility of the applicant for an operating license to satisfy both the NRC Staff and the Licensing Board that applicable regulatory requirements have been or will be met.
1 l
"As Comanche Peak and other NRC licensing proceedings amply demonstrate, the process of developing the information to satisfy these regulatory recuirements can be and often is
, time-consuming. The implication of the Commission's holding in CLI-82-29 is that an applicant must be afforded the time either to demonstrate compliance with regulatory requirements or to detect and correct violations of those requirements. Specifically, that an applicant may be responsible for the delay in this sense does not give rise to the conclusion that the applicant has been dilatory. Nor does it negate the conclusion that good cause exists to
! provide sufficient time to complete j identification and analysis of potential violations, and implementaiton of corrective actions. This is particularly true where, as here, the applicant has diligently pursued, and devoted substantial resources to, the information gathering, documentation, and correction process. Accordingly, contrary to CASE's argument, TUEC has arply satisfied the requirement that there be good cause for the extension, and the Commission should deny CASE's request outright." Id. at 6-7.
On February 10, 1986, the Staff issued its evaluation of the Applicants' Request and recommended its allowance, stating inter alia: l 1
"In their letters of January 29 and February 4, 1986,- applicants state that
' good cause' exists to warrant the extension requested. They observe that
- although construction of the facility is essentially completed, significant additional efforts, which in fact commenced in the fall of 1984, are necessary to address and resolve questions raised by the staff-in the
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course of its review as well as issues raised by the Licensing Board and other parties in the operating license hearing. These matters must be resolved
to assure that all regulatory requirements have been or will be met.
"In the staff's judgment, these matters were not foreseen when the applicants requested and were granted an extension of the construction permit in April 1982 nor have the applicants been dilatory in pursuing completion of the plan and resolution of outstanding issues. The staff, therefore, concludes that ' good cause' for the delay has'been demonstrated by the applicants so as to warrant an extension of the construction permit for Unit 1." Evaluation of Request for Extension of the
- Construction Permit Completion Date -
Comanche Peak Steam Electric Station, Unit No. 1, Texas Utilities Electric Company et al. Docket No. 50-445 (February 10, 1986) (hereafter " Staff Evaluation") at 1-2.
On that same date, the Acting Director, Division of PWR Licensing-A issued the order granting the request. Nuclear Regulatory Commissien, Texas Utilities Electric Station, Unit 1, Docket No. 50-445, order Extending Latest Construction Completion Date (Feb. 10, 1986). The Order stated:
"As discussed more fully in the staff's related Evaluation of Request dated February 10, 1986, we have concluded that good cause has been shown for the delay, and that the requested extension is for a reasonable period. We have further concluded that the requested extension involves no significant hasards consideration, and therefore no prior public notice is required." Id.
at 2.
On February 11, 1986, CASE filed a Request for Stay of Effectiveness of Construction Permit Extension and For Other
Relief. In response to the Staff's statement with respect to " good cause", CASE argued:
"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 and the staff already had been warned by NRC investigations and company audits that QA/QC was not being properly implemented. The logical consequence of those consistently noted inadequacies is
. that construction defects would eventually 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 i
January 31 filing, whatever else the good cause showing requires it must include the issue of whether applicants' need to continue to work on the p_lant is caused by its own incompetence and disregard for Commission requirements.
The present extension arises exclusively because TUEC has not competently built CFSES and because TUEC management lacks the character and commitment to obey the NRC requirements for constructing this plant." Id. at 10. Footnote omitted.
On March 13, 1986, the Commission issued CLI-86-04, in which it denied the CASE Request in large measure. However, it referred so much of the CASE Request as sought enforcement action to the Staff under 10 CFR $ 2.206, and it referred the request for a hearing to the Atomic Safety and Licensing Board Panel Chairman for appointment of a hearing board to rule on the hearing request and to conduct any necessary ;
i hearings in accordance with 10 CFR 2. CLI-86-04 at 3. The 1
Commission also denied the request for a stay of the effectiveness of the' extension. Id. With respect to the referral of the hearing request, the Commission stated: "However, the scope of the proceeding is limited to challenges to TUEC's effort to show ' good cause' for the extension. Washington Public Power Supply Systems (WPPSS Nuclear Projects Nos. 1 and 2), CLI-82-29, 16 NRC 1221, 1229 (1982)." CLI-86-04 at 11.
On March 26, 1986, the Chairman of the Atomic Safety and Licensing Board Panel appointed a Licensing Board the membership of which is identical to that of the Licensing Board currently presiding over the CPSES No. 1 Operating License proceeding. Notice, 51 Fed. Reg. 10480 (March 26, 1986). On April 7, 1986, two petitions to intervene were filed, one by CASE (CASE Petition) and one by Meddie Gregory (Gregory Petition). The CASE Petition set out a total of nine contentions and the Gregory Petition set out a total of four.
Of relevence here are CASE Contention 6 and Gregory Contention 1. As stated in the petitions these two contentions read, in their entirety, as follows:
CASE No. 6: ,
"6. Applicants have not met their burden of proving that the delay in completion of construction was not caused by their own dilatory conduct.
"a. Applicants have not given any reason for the existence of the I
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delay ~. They only assert they need more time to complete a reinspection, redesign, and reconstruction program but they do not disclose the reason why such
. programs are needed or that the reason for delay was not intentional and without a valid purpose.
"b. The real reasons for the delay in construction completion were that:
"(1) Applicants deliberately refused to take positive action to reform their QA/QC program in the face of consistent criticism, and
"(2) Applicants have failed to properly design their plant, specifically:
"1. Applicants failed to correctly apply fundamental engineering principles, "ii. Applicants failed to properly identify unique designs in their PSAR, "iii. Applicants constructed much of their plant prior to its design having been completed, "iv. Applicants have failed to comply with 10 CFR Part 50, Appendices A
. and B, including their failure to promptly identify and correct design deficiencies, and deliberately refused to take positive action to correct such deficiences.
9_
" Applicants ignored consistent criticism of their QA/QC program over a period of at least ten years and of their design over a period of at least four years, in th'e face of warnings by independent
. auditors, the NRC, and even the Atomic Safety and Licensing Board. As a result of these deliberate actions, Applicants built an unlicensable plant which must now be reinspected, redesigned, and reconstructed in the hope that it can be made licensable. There is no valid purpose given by Applicants for why, in the face of these criticisms, they refused to change their QA/QC implementation or address and correct design deficiencies. Thus Applicants have not established a good cause for the delay." Case Petition at 4-5.
Grecory No. 1:
"1. Applicants have not met their burden of proving that the delay in completion of construction was not caused by their own dilatory conduct.
"a. Applicants have not given any reason for the existence of the delay. They only assert they need more time to complete a reinspection, redesign, and reconstruction program but they do not disclose the reason why such programs are needed or that the reason for delay was not intentional and without a valid purpose.
"b. The real reason for the delay in construc' tion completion was that Applicants deliberately refused to
. take positive action to reform their QA/QC program in the face of consistent criticism over a period of at least ten years, and that they refused to properly design their plant, specifically failing to apply fundamental engineering principles, failing to identify designs in the PSAR, constructing the plant prior to having a
completed design, ignoring confirmed design deficiencies, and failing to comply with 10 CFR Part 50, Appendix A and B requirements.
As a result of this deliberate refusal to implement a proper QA/QC program for design and construction after years of warning from independent auditors and the NRC, Applicants built an unlicensable plant which must now be reinspected, redesigned, and reconstructed in the hope that it can be made licensable. There is no valid purpose given by-Applicants for why, in the face.of these criticisms, they refused to change their QA/QC implementation.
Thus Applicants have failed to establish that the delay was not intentional and for an invalid purpose." Gregory Petition at 2-3.
On April 22, 1986, a special prehearing conference was held. Transcript 1-82, NRC Docket No. 50-445 CPA (hereafter Tr.). At the outset of that prehearing, counsel arguing for both CASE and Ms. Gregory (Tr. 5, 26) stated the interveners' position to be as follows:
"First, unlike any of the petitions that were involved in the WFPSS proceeding or in the Seabrook proceeding, C.A.S.E.
here is not asking that the extension be denied. C.A.S.E. is asking that the extension be granted only if certain conditions are met.
"If the Applicants choose not to accept the conditions then they will have made the decision to not take the extension.
So we are not in a condition in which many of the argumente of the Commission uses to justify why one should not worry ,
that an Applicant may have done some l wrong in the past, why that should not i be of concern because if they are not j willing to be -- to get an extension of I 11 -
l l
time to correct the problem, they'll be less willing to come forward and admit that they have done something wrong in the.past. Our arguments do not depend upon that." "r.i 7.
Thereafter, the Licensing Board issued the decision here on appeal. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), LBP , 23 NRC (May 2, 1986) (ASLBP No. 86-5-28-02-CPA) (hereafter referred to as " Decision" and cited to the Slip Opinion).
The Licensing Board rejected all of the contentions except CASE 6 and Gregory 1. Decision at 11-12. With respect to these latter contentions, the Board admitted as a single contention all but the last (unlettered and unnumbered) paragraph of CASE No. 6 and treated that last paragraph as the basis for the contention admitted.2 Having 2
The Board described the admitted contention as "a combination of CASE No. 6 and Gregory No. 1" and went on to say:
"The only substantive change made by the licensing board is that we consider that part of the contention was in fact a statement of basis. We do not consider the statement of basis to be a part of the Contention." Decision at 7 n.5.
However, the statement in the text is also correct. The
" contention" and " basis" as set out at pages 7-8 of the Decision is identical to the CASE contention No. 6 as stated. Neither CASE nor Gregory labeled or otherwise indicated that any part of their contention was a
" basis" Arguably CASE, by failing to give a letter or number to the last paragraph was signalling the reader that this was only a basis and not part of the contention. So much of the " basis" statement as can also be found in haec verba in Gregory No. 1 is found in
so interpreted CASE No. 6, the Licensing Board went on to justify its ruling. The Board began by holding that the contention was relevant to a construction permit extension proceeding. Decision at 8-9. The holding as to relevance is apparently justified by the Licensing Board on two grounds. The first is:
"Since intervenors have alleged that Applicants were dilatory in not completing their plant within the term
, of their construction permit, their contention is relevant. Intervenors' interpretation of the facts--whose truth l may be tested through discovery and hearing--is that Applicants did
[
understand the deficiencies in their QA program but that they were dilatory because they deliberately did not correct those deficiencies in a timely fashion. They state that Applicants have not alleged a valid purpose for that delay." Decision at 8.
In a footnote appended to the word " deliberately" in the above-quoted text the Licensing Board stated:
"We consider ' deliberately' and
' intentionally' to be equivalent terms in this context." Decision at 8 n.6.
The second reason for " relevance" is given as:
" Petitioners contention is relevant.
Their interpretation of Applicants' statement of good cause is that all Applicants have designated as cause is that it is now necessary to take time to correct deficiencies. Petitioners allege, on the other hand, that there is no explanation of the source of the
=
what was clearly labelled paragraph b. of that contention as stated.
deficiencies. They state that Applicants deliberately ignored warnings of adverse conditions, that their delay has resulted in the need for the correction efforts now under way, and that Applicants have not provided a good cause for the resulting delay." Decision at 8-9.
Next the Licensing Board went on to discuss the question of basis. The Licensing Board stated that:
"The only aspect of the basis for the contention that is at all troubling is whether there is a basis for believing that Applicants intentionally failed to complete construction within the terms of their construction permit." Decision at 9 (emphasis in original).
Thereafter, after stating the rule that corporations can only act through their agents, the Licensing Board went on:
"In this instance, Applicants must not only have acted intentionally but they also must have had an invalid purpose.
- Consequently, the petitioners must
, provide a basis for inquiring further about whether Applicants acted intentionally and whether their purpose was invalid.
"As a basis for their contention, petitioners refer to documents well known to the judges on the Board, all of whom also sit on the companion case involving an application for an operating. license for Comanche Peak. It is not our job at this stage of this case to scrutinize each of those doquments carefully and conduct an analysis of the extent to which they support in detail CASE's interpretation l of the facts. ,
i "It is enough for us to know that the cited documents do contain consultants' l
opinions and the opinions of this Board concerning QA for design. These I
_-_______-_-_____________-_____________________-__-____-_-_____--_______-__-_-_________--____-_-__________-___-_U
documents'date back to 1975. For'the purpose of determining whether to admit this contention, we interpret the facts favorably to petitioners' contention.
So,' absent proof to the contrary, we
. assume that Applicants knew of the 4 adverse consultant reports and NRC
! reports. We also assume that they had
! t. cess to plant officials and the l ability to gather information about the
] plant's condition. We also are aware
] that the major remedial step taken by l Applicants, formation of the Comanche
- Peak Review Team, did not occur until 1985." Decision at 9-10.
The documents which the Board describes as being ones 1
the petitioners " refer to" and ones which are " cited" were j not referred to or cited in what the Licensing Board viewed as the " basis" (i.e., the unlettered Case No. 6 paragraph) of the contention except as unparticularized " criticisms" and " warnings by independent auditors, the NRC, and even the Atomic-Safety and Licensing Board." See Decision at 8. The j Gregory No. 1 statement of contention is no more specific.
At the prehearing conference some further detail was supplied by intervenors' counsel as follows:
"Now, let's go to your second question
, which was what do we mean when we say in
, the second paragraph of our contention,
- we put forward with we think the reason is; number one, I believe that that paragraph meets every pleading
. requirement of the Commission's for a statement of basis. I do not believe r
it's necessary for C.A.S.E. to list all of the individual reports that we are referring to there.
I "What we are saying is when you go to those reports, when they are in j
, evidence, you will see that the 1 l Applicant is being told stop doing this-l 15 -
?
f i l
and that in fact, Applicant kept doing what it was they were told to stop doing.
"To whatever extent this Board feels
. that we should have at least told you that, it was attached to our original pleading to the Commission filed on January 31st, Appendix B, in which we laid out for the Commission in our motion with regard to this entire issue that they should not allow the extension to remain in affect, and we laid out in detail each one of those reports and explained what was wrong with it." Tr.
68.
The specific documents referred to as being in Appendix B to the January 31, 1986 filing are:
- 1. " Summary of NRC inspections and independent audits from 1976 to January, 1985" - author of summary unnamed.
- 2. " Admissions by spokespersons for TUEC (or as contained in Deficiency Reports, NCRs, or other TUES-Generated Documents)" - author of summary unnamed.
- 3. " Findings and conclusions of Staff investigations and allegations by former workers at Unit 1 as detailed in the SSERS; and the EG&G findings" -
author of summary unnamed.
- 4. " Summary of Preliminary Decision of the Atomic -
Safety and Licensing Board" - author of summary unnamed.
- 5. A Texas Utilities Generating Company Audit Report by MAC of an audit done May 1-12, 1978.
- 6. SSEER No. 11 for CPSES Units 1 and 2 pp. P-27--P-36 titled "QA/QC Conclusions" (May, 1985).
The Licensing Board then went on to state in the i
conclusion.
"We find that petitioners' allegations of the true cause of the delay in
constructing this plant are relevant and have sufficient basis to be admissible; they shall be admitted as a contention.
Petitioners appear to be correct in pointing out that Applicants have not
. alleged the underlying cause of the delay in completing construction nor what valid purpose may explain that delay." Decision at 10.
The Board then closed this part of its discussion with the following interpretation of the admitted contention:
"Having admitted Contention 1, we now wish to interpret it because it contains design allegations that do not of themselves assert willfulness. These allegations shall be interpreted by the Board to require only that Applicants carry the burden of showing that the conditions either did not occur or that failure to remedy them was not willful." Decision at 11.
It is in this posture that this matter comes before the Appeal Board, en appeal pursuant to 10 CFR 6 2.714a.
ARGUMENT I. THE DECISION DIRECTLY CONTRAVENES ONE OF THE PRINCIPLES LAID DOWN BY THE COMMISSION IN CLI-82-29 The first decision in which the NRC itself addressed the question of what type of contentions are admissible in a construction permit extension hearing was Washington Public Power Supply System (WPPSS Nuclear Project Nos. 1 & 2),
CLI-82-29, 16 NRC 1221 (1982). After discussion of the relationship between a construction permit extension proceeding, an operating license proceeding, and a 10 CFR 5 2.206 proceeding, the Commission laid down an exclusivity
rule to be utilized in dealing with contentions made in a construction permit extension proceeding:
"We' believe that the most ' common sense' approach to the interpretation of section 185 and 10 CFR 9 50.55 is that the scope of a construction permit extension proceeding is limited to direct challenges to the permit holder's asserted reasons that show ' good cause' justification for the delay. The avenue afforded for the expression of health, safety, and environmental concerns in any pending operating license proceeding, or in the absence of such a proceeding, in a petition under 10 CFR 5 2.206 would be exclusive despite the pendency of a construction permit extension request." 16 NRC at 1229.
Thereafter, the Commission went on to disavow any intention to preclude all challenges to a request for extension of a construction permit completion date:
"This does not mean, however, that no challenge can be made to an application for an extension of a construction permit completion date. In seeking an extension, a permit holder must put forth reasons, founded in fact, that explain why the delay occurred and those reasons must, as a matter of law, be sufficient to sustain a finding of good cause. Certainly, the factual basis for the reasons for delay asserted are always open to question in that the permit holder cannot invent reasons that did not exist. Moreover, the permit holder cannot misrepresent those reasons upon which it seeks to rely, for, as the :
Appeal Board in Cook noted, any i determination of the sufficiency of a )
permit holder's reasons for delay 'would )
be influenced by whether they were the sole important reasons for the delay or )
1 whether, instead, the delay was in actuality due in significant part to other causes (which perhaps might have j i
18 -
indicated that the applicants have been dilatory in the conduct of the l construction work and that this factor was the principal explanation for the
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need for an extension of the completion deadlines).' 6 AEC at 417. An intervenor is thus always free to challenge a request for a permit extension by seeking to prove that, on balance, delay was caused by circumstances that do not constitute
' good cause'." 16 NRC at'1229-30.
On the basis of the principles enunciated in the above-quoted language (wherein the Commission first used the word " dilatory"),.the Commission disposed of a number of the contentions before it, 16 NRC at 1230, and held that another contention should be remanded for further consideration in light of what the .'.ppeal Board later described as a "two-pronged test" for admissibility, i.e. traceable to applicant and " dilatory." Washington'?ublic Power Supply
- System (WPPSS Nuclear Project No. 2),'ALAB-722, 17 NRC 546, 551 (1983). However, of most importance to the case at bar, in between the rejection of a number of contentions and the remand of one, the Commission in CLI-82-29 dealt specifically with one contention described as " CSP's First Contention relating to WNP-2." 16 NRC at 1230.
That contention, as quoted in CLI-82-29, was:
~
" Delays of twelve months due to WPPSS violations of NRC regulations do not constitute good cause. WPPSS was granted a construction permit on the basis of its ability to build a safe plant." 16 NRC at 1225.
As to this contention the Commission ruled:
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"Likewise inadmissible, although for a somewhat different reason, is CSP's first cont'en' tion relating to WNP-2, by which it asserts that delays were due to WFPSS violations of NRC regulations. It
- might be argued that this contention should be admitted because it seeks to establish that a reason other than those given by the permit holder is a principal cause of delay and that such a reason does not constitute ' good cause';
upon closer examination, however, we believe the admission of such a contention in a construction permit extension proceeding on that basis would be contrary to the overall intent of the Atomic Energy Act and the Commission's regulations. If a permit holder were to construct portions of a facility in violation of NRC regulations, when those violations are detected and corrections ordered or voluntarily undertaken, there is likely to be some delay in the construction caused by the revisions. Nonetheless, such delay,- as with celay caused by design changes, must give ' good cause' for an extension.
To consider it otherwise could discourage permit holders from disclosing and correcting improper construction for fear that corrections would <;ause delays that would result in a refusal to extend a construction permit, a result obviously inconsistent with the Commission's efforts to ensure the protection of the public health and safety. This contention thus is not litigable." 16 NRC 1230-31 (emphases added, footnote omitted)
In short, whatever may be the rule or test for other contentions, if a contention is to the effect that the real reason for delay is that the applicant has used up, or still needs, time to correct " improper construction," the contention simply will not be entertained as a matter of 1
policy. To do otherwise, the Commission held, woitld l 1
! l l
l
s discourage utilities from disclosing or correcting construction deficiencies. Integral to this holding is the prohibition hgainst probing how or why the ", improper construction" occurred. And this prohibition. constitutes a policy-grounded" exception to the general rule ~ governing analysin of proferred contentions in construction permit extension cases.
The petitioners offered two novel theories to evade this Commission prohibition on the denial of an extension for the purpose of correcting construction defects. The first was the no' tion of a remedy of " conditions" rather than denial. -
See Pa'rt IV, infra. The second was the concept of an exception tc.the exception.
As the argument was advanced (and apparently accepted by the Board), the extension may not be denied if the defects originated in one set of reasons (which we infer to be good faith construction errors) but.may (and presumably must) be denied if the construction defects were the result of a .
different set cf reasons. What this second set constitutes is never made clear, either in the petitions or thr/
Licensing Board's decision, but apparently it consists of l some combination of pri9r notice of the asserted defects, inadequate celerit" fr t? 6 .r recognition and rectification, and possibly some bad motive for the acts that produced them. If, apparently, a permittee intentionally violated Commission regulations, or failed to address adequately any l
- 21,-
a
J identified deficiencies at any time in the construction process, and is now faced with remedying those deficiencies, so the argument appears to have gone and been accepted, then the prohibition of CLI-82-29 does not apply.
There are at least three reasons why this argument must be rejected and the decision adopting it must be reversed.
First, the structure of the Commission's decision as outlined above reveals that what was created.was a flat exception to the rule on " dilatory;" this exception is a separate rule excluding a class of contentions on a per se basis. The Commission did not purport to be applying its
" dilatory" rule and it did not remand the contention it was j addressing to the Licensing Board for consideration under that rule. Second, the words of the Commission's pronouncement recognize no such exception. What the I
Commission said is that "such delay," i.e., " delay in the construction caused by the revisions" necessary to cure violations of Commission regulations, "must give ' good cause' for an extension." And this is so whether the corrections are " ordered or voluntarily undertaken."
1 Nowhere in its discussion of the point does the Commission l articulate or consider the spectrum of possible root causes for " improper construction;" nowhere does the Commission ground its rule upon some line dividing one set of possible causes from another; and nowhere does the Commission dwell l upon the temporal period involved in either discovering or 1 l
curing the defects. The rule, rather, is as simple as it-was stated: a need for more time in order to detect and correct possible deficiencies must be considered to be delay for " good cause."
That the Licensing Board has misread the prohibition on contentions grounded on construction defects and the general rule of " dilatory" as combining to form a more expanaive --
instead of a more restrictive -- test of contention admissibility is illustrated by the language appearing on pages 3 and 4 of the Decision. The Licensing Board quotes the third and fourth sentences of the above-quoted language from CLI-82-29 declaring the prohibition, without quoting (and, we respectfully suggest, without giving adequate heed to) the policy pronouncement and reasoning which directly followed. The Board then proceeds to reveal its perception that a favorable showing on " dilatory" defeats the prohibition by the following language:
"This passage places the following gloss on CLI-82-29: that it is not sufficient to allege that a delay has been caused by violations of applicable regulations.
The allegation must show more than mere violation. In those circumstances, it must allege as well that applicants were dilatory in the conduct of the construction work and that this factor was the principal explanation for the need for an extension of the completion deadlines." Decision at 3-4.
Plainly, the Licensing Board considers that a sufficient showing of " dilatory" overcontrols the prohibition on 1
1
extension denials grounded on the need to correct deficiencies: the statement and the effect of the decision below is that, if the dilatory standard is met, then the prohibition is overcome.
The structural and logical problem with this 4
interpretation (prescinding entirely from its policy consequences) is that it renders the prohibition section nugatory. All contentions must meet the " dilatory" test in
- order to be admissible. Any contention that fails the
" dilatory" test is inadmissible, whether it deals with asserted " improper construction" or anything else. If the Commission intended only those construction-defect contentions that did not pass the " dilatory" test to be excluded, it need have done no more than create the
" dilatory" test. The interpretation of the Licensing Board leaves no effective role for the Commission's policy pronouncement and it therefore results in an entire and important section of CLI-82-29 being wholly nugatory.
The third and most compelling reason why the decision below must be reversed is that the underlying policy imperative that prohibits the admission of construction-defect-grounded contentions in extension cases is equally applicable regardless of the real or asserted reason for the deficiencies. That imperative is that a permittee not face the fact or the threat of a penalty in the form of non-extension that would act as a disincentive for the 24 -
detection and correction of construction problems.
Obviously, if there is a difference in the applicability of this compelling precept between good faith errors and prompt recognition, on the one hand, and less than good faith errors and recalcitrant recognition on the other, the policy is even more applicable in the latter class of cases.
Neither CASE nor Gregory has ever offered any articulation of how the admission of this contention would avoid the self-defeating regulatory pitfall which the Commission-sought to avoid; neither does the Licensing Board.
II. IF UPHELD, THE LICENSING BOARD'S REASONING AS A PRACTICAL MATTER VIRTUALLY ASSURES AN ADJUDICATORY PROCEEDING IN ANY CONSTRUCTION PERMIT EXTENSION PROCEEDING WHEREIN INTERVENTION IS SOUGHT d
"In any project even remotely approaching in magnitude and complexity the erection of a nuclear power plant, there inevitably will be some construction defects tied to quality assurance lapses." Union Electric Co. (Callaway Plant,
- Unit 1), ALAB-740, 18 NRC 343, 346 (1983). And when such defects are discovered " . . . there is likely to be some delay in the construction caused by the revisions."
CLI-82-29, suora, 16 NRC at 1230. If the Licensing Board's reasoning is accepted here, all that a petitioner to intervene in a construction permit extension proceeding must do is (a) point to some QA problem during construction, and O
(b) allege that the time to do the "fix" was too long.
Under the Licensing ~ Board's analysis, this would always present a litigable contention which mandates an adjudicatory hearing. To permit this result is to essentially reverse the policy-grounded rule laid out in CLI-82-29 and discussed at length in Section I above, and to put NRC in the business of conducting prudency audits.
III. EVEN IF ONE ACCEPTS THE LICENSING BOARD'S INTERPRETATION OF CLI-82-29 THERE STILL WAS NO SHOWING OF BASIS BY THE INTERVENORS A. THE DOCUMENTATION SUPPOSEDLY SUPPLYING THE BASIS WAS NOT I SUFFICIENTLY PARTICULARIZED That portion of CASE No. 6 which the Licensing Board treated ar a statement of basis referred to " constant criticisms" of the QA/QC program and design and " warnings by independent auditors, the NRC, and even the Atomic Safety and Licensing Board." CASE Fetition at 5; Decision at 8.
The Gregory petition had similar vague references to
" constant criticism" and " warning from independent auditors and the NRC." Gregory Petition at 2. These vague references to " criticisms" and " warnings" were viewed by the Licensing Board as references "to documents well known to the judges on the Board" who, it was noted, enjoyed the fortuitous status of also sitting in the Operating License proceeding. Decision at 9.
While applicants acknowledge the discretion of a Licensing Board to recast contentions to make them acceptable, there are limits. In Philadelphia Electric Co.
(Limerick Generating Station, Units 1 and 2), ALAB-804, 21 NRC 587 (1985), a case where the documents allegedly l supplying the basis were listed with much more particularity than here and were described in more detail than as
" criticisms" or " warnings," the Appeal Board sustained rejection of a contention with the following observations:
! "[I]f [intervenor] intended to rely on certain documents as the bases for its contention . . ., it was obliged to provide them to the Board and the parties, or, at a minimum, to describe them with reasonable specificity so as to facilitate locating them. Without the documents, the Board.could hardly make a judgment as to whether they provide a basis for [intervenor's]
c or.tenti on . The reasonableness of such an expectation is patent. Likewise clear is [intervenor's] failure here to i meet this minimal obligation." 21 NRC at 592 (emphasis added).
To the above-cuoted statement was appended a footnote which included the following: '
"[Intervenor's] cryptic, non-specific references to various ' studies' are of no value. Other than the references to the FES for Limerick, we simply do not know where to look for the asserted support for [intervenor's] contention
. . .. The NRC's adjudicatory boards should not have to conduct or complete a party's research for it." 21 NRC at 592 n.6. (emphasis added).
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The result in terms of whether the basis requirement of 10 CFR S 2.714 has been satisfied should be no different simply because the Board members happen also to sit in another proceeding and are satisfied that they know what
" warnings" and " criticisms" are referred to. Especially is this so, when a careful review of those " warnings" and
" criticisms" referenced in oral argument, as seen below, demonstrate that they do not supply all elements of the necessary basis.
B. EVEN ASSUMING THAT THE ORAL REFERENCES TO DOCUMENTS ATTACHED TO THE JANUARY 31, 1986 PLEADING OVERCOME SPECIFICITY OBJECTIONS THE DOCUMENTS STILL DO NOT SUPPLY SUFFICIENT BASIS As noted earlier, supra at 15-16, during the prehearing conference, the intervenors specifically referenced the documents in Appendix B to the CASE Request. Granted, a review of these documents reveals a litany of construction, design, and QA/QC deficiencies. However, at most, all that l this establishes is that the applic. ants were, or should have been, on notice of these problems. Nothing in these documents can be said to be a basis for saying that the applicants' failure earlier to solve the problems constituted an " intentional delay of construction without a valid purpose." ALAB-722, supra, 17 NRC at 552.
Even if there is some hitherto unrecognized exception to the imperative of CLI-82-29, simply being on notice of i problems with the adequacy of construction is not sufficient t.
j to ground it. To the contrary, any such exception must be i
based on management having intentionally engaged in conduct (constructio'n or inspection) that it knew both (i) was in violation of the Commission's regulations and (ii) would l- result in unacceptable hardware and that management did so for the pureose of delaying construction (whilst, presumably, attempting to disguise that a delay in construction was the purpose of the conduct). That such is i required follows inexorably from the logic of CLI-82-29 and from the purpose of section 185 of the Act as.the Commission has interpreted it.2 Certainly it is insufficient that the b
2 i As the Commis? ion describes in CLI-86-04, the concern of I
section 185 of the Act is limited to bad faith and intentional delay, not inadequate or even bad faith compliance with construction procedures:
t "It is noteworthy, however, that the quotated language was modeled on the provision of the 4
Communications Act of 1934 which governs the 1 issuance of radio station construction permits by I the Federal Communications Commission. At the time l that the Atomic Energy Act of 1954 was passed, all l nuclear fuel was owned by the United States i
Government, and it was envisioned that recipients
- of construction permits would, once their ,
facilities were completed, receive some of that
, publicly owned fuel for use in the reactor. Thus, in -1954, there were significant analogies between i 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 1
I 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 l it." CLI-86-04 at 4-5.
a i
j ;
i 1
utility intentionally performed the construction that later proves to be deficient; this is true in every case and would result in any' exception swallowing the rule. Nor would it be sufficient that management intentionally deviated from the programmatic requirements of the Commission without also having intended that the hardware be deficient, for in any case in which unintended hardware deficiencies are later discovered the policy in support of encouraging disclosure and rectification remains equally applicable and equally compelling. Consequently, any exception must be based on a hypothesis so illogical and so remote as to be self-defeating in the absence of compelling basis.
The documents on which CASE relies, regardless of how indulgently read, do not establish any basis for an exception to the prohibition of CLI-82-29. Certainly the latter events referred to (the NRC Staff Technical Review Team assessments which were received in 1984 and 1985) and the ASLB Memorandum and Order (issued in the end of Under the circumstances that obtained when this section was enacted, a construction permittee had made an essential bargain with the government: he would invest the funds to I
build a useful reactor in exchange for an allocation of fuel (and, de facto, the fact that someone else would be deprived of the same opportunity). It is for this reason that the intentional conduct of which CLI-82-29 speaks is intentional delay. The decision below equates'necessarily intentional acts of construction (that prove for whatever reason to have resulted in construction defects) with intentional delay.
This is an equation that does not square with the purpose, history or Commission interpretation of section 185's deadline provisions.
l 1
December, 1983, and raising " doubts" about a finite area of 1
design), would be inadequate, because the ensuing efforts
] and delay are'a direct response to those criticisms. The earlier events amount to statements of opinion regarding the right way to proceduralize construction and inspection as to q which, for whatever reasons, management chose certain responsive measures, or may not have agreed with, at the time. Even assuming, arguendo, that management's historical
~
decisions were wildly in error, nothing in these documents establishes an intent to delay construction and completion of the facility. Intent to delay.is the lynchpin of any 1
basis for denying " good cause," and the referenced documents 1
afford no basis at all for asserting such an intent. A j fortiori the documents fall woefully short of supplying adequate basis to support an assertion of an exotically illogical and irrational historic motive.
At bottem, what CASE and Gregory have proposed, and what the Board's order has the effect of approving, is that intentional conduct that results in defective (or possibly t
]
defective) hardware is substituted for intentional delay.
l l
i The substitution has the effect (and in the case of the intervenors p,ossibly the purpose as well) of converting the construction permit proceeding into a penalty assessment for assertedly inadequate construction management. Such a conversion is contrary to the purpose of the construction permit extension procedure as established by the Commission;
. 1 l
c- - - ._-
I l
l 1
l even more compellingly, however, such a conversion does not '
! obviate but rather heightens the very regulatory and policy l concerns that in CLI-82-29 the Commission sought to avoid.
In addition, it would place the Licensing Baord in the j business of conducting a prudency audit, a function l
historically and properly assigned to rate regulators, not j NRC adjudicatory tribunals, I
i IV. THE DECISION IS INCONSISTENT WITH THE RELIEF REQUESTED
.i i Introduction i
I As noted above (pages 11-12), the intervenors advised the Licensing Board at the outset of the prehearing conference that their petitions did not seek the den,i,al of the construction permit extension. Tr. 7. Rather, what the
! I intervenors sought is that the construction permit be extended but that it alsc simultaneously be amended so as to i
contain certain conditions and limitations not present1.y i
contained in it. Id. This description of the relief sought by the intervenors does not appear to have been confined to only certain of the proposed contentions; rather, it was made immediately after the Licensing Board served notice
, that the only contentions that seemed to it to be even i
~
potentially. viable were CASE No. 6/ Gregory No. 1. Tr. 6.
The Applicants argued to the Licensing Board that it lacked jurisdiction, in a construction permit extension l
1 l
1
proceeding, to entertain requests to alter the scope of the permit or the privileges conferred thereby; rather, the Applicants argued, the jurisdiction of the Licensing Board was confined to determining whether the existing permit (and i
j the existing privileges thereunder) should be extended in time. Tr. 34-35. With this proposition the Licensing Board seems to have concurred:
" CASE has argued, ably but not persuasively, that it could gain admission of a contention into this proceeding for the purpose of imposing conditions on the Applicant's permit.
However, petitioners' proposed conditions do not deal with the subject matter of the application: a request for more time. The suggested conditions relate to substantive matters about the correction of deficiencies in the plant.
We do not find any authority to consider j these conditions independent of the admitted contention, dealing with dilatoriness in addressing known conditions." Decision at 11-12.
.; Nonetheless the Licensing Board admitted the contention.
The quoted passage leaves two things unclear. The first is whether the Board intends to entertain (and potentially
, to grant) the petitionerc' request that the construction permit be amended by imposing some conditions and I
, limitations not presently therein. We frankly do not j understand so much of the quoted portion as begins with the l 1
phrase " independent of the admitted contention . . . The second unclear matter is what the proposed conditions are; j the admitted contention (CASE No. 6/ Gregory No. 1) refers to i
i
! i
M none. We assume, however, that the conditions are those spelled out in another, rejected, contention (CASE No. 7/ Gregory No. 2). Regardless of how one interprets the
- quoted language, however, admission of the contention was i error.
A. IF THE BOARD CONSIDERS ITSELF IN A POSITION TO BE ABLE TO IMPOSE THE REQUESTED CONDITIONS, IT IS EXCEEDING ITS AUTHORITY Tha Licensing Board in this proceeding has no authority 1
to modify or amend the construction permit in any respect other than the date established as the last date for l construction. This follows from two precepts. First, the only matter that the Commission has referred to tha Licensing Board is the Applicants' request for extension.
l It is settled that the jurisdiction of a Licensing Board is determined by the order convening the hearing and the nature of the request that the Licensing Board is adjudicating.
E.g., Ccmmonwealth Edison Co. (Zion Station, Units 1 and 2), ,
l j ALAB-616, 12 NRC 419, 426 (1980). The power of the l
Commission to investigate why construction defects may exist, to assess whether the terms of the original construction permit were violated, and to evaluate what penalty, if any, is appropriate for any violations that may be found is a matter of enforcement that resides in the first instance in the Staff.and in any event has not been referred or delegated to the Licensing Board. These are 1
i i
true as general propositions. Second, in this particular matter the Commission has, in CLI-86-04, been explicit as to the limited nature of the proceeding to be conducted by the Licensing Board: "[h]owever, the scope of the proceeding is limited to challenges to TUEC's effort to show ' good cause' for the extension." CLI-86-04 at 11.
If the Licensing Board has entertained the. subject contention for the purpose of determining how the construction permit should be modified -- or even if the construction permit should be modified -- in any respect other than as to the last date for construction, it has exceeded its delegated jurisdiction.
B. IF THE BOARD DOES NOT PROPOSE TO E!TERTAIN THE QUESTION OF CONDITIONS, BUT RATHER ONLY THE GRANT OR DENIAL OF EXTENSION, IT IS ENTERTAINING A 4
REQUEST NOT MADE BY THE INTERVENORS As noted above, the quoted portion of the Licensing Board's decision is not entirely clear as to wheth'er the Licensing Board agrees that it lacks totally the power to impose new conditions on any extended construction permit, or whether it does possess such power "[in connection with]
I
.I the admitted contention." If the latter, then for the foregoing reasons it is exceeding its jurisdiction. If the former, then the Licensing Board has granted a hearing that
- was not requested -- indeed, one that has been explicitly disclaimed. This, too, it lacks authority to do.
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As a consequence, given the petitioners' concession that what was sought was not denial of the extension but rather modification o'f the permit, admission of this contention was error whichever reading of the quoted language is correct.
CONCLUSION The Decision should be reversed and the petitions to intervene dismissed.
Respectfully submitted,
- Nicholas S. Reynolds William A. Horin BISHOP, LIBERMAN, COOK PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Suite 700 Washington, DC 20036 (202) 857-9800 Robert A. Wooldridge WORSHAM, FORSYTHE, SAMPELS &
WOOLDRIDGE 2001 Bryan Tower, Suite 3200 Dallas, TX 75201 (214) 979-3000 Roy P..Lessy, Jr.
, 1800 M Street, N.W.
J Washington, DC 20036 (202) 872-5000 Thomas G. Dignan, Jr.
R. K. Gad III ROPES & GRAY 225 Franklin Street
. Boston, MA 02110 (617) 423-6100 i
gf
- By ( /sW Thoma s 'G 2%>rTnan, Jr.
, Counsel for the applicants-appellants ;
l l
CERTIFICATE OF SERVICE i
I, Thomas G. Dignan, Jr. one of the attorneys for the Applicants herein, hereby certify that on May 12, 1986, I made service of the within "Brief of the Applicants-Appellants" by mailing copies thereof, postage prepaid, to:
Chairman Dr. W. Reed Johnson Atomic Safety and Licensing Administrative Judge Appeal Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Panel Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission l Washington, D.C. 20555 Alan S. Rosenthal, Esquire Thomas S. Moore, Esquire Chairman, Atomic Safety and Administrative Judge Licensing Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Panel Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Peter B. Bloch, Esquire Mr. James E. Cummins Chairman Resident Inspector Administrative Judge Comanche Peak S.E.S.
i Atomic Safety and Licensing c/o U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory P.O. Box 38 i Commission Glen Rose, Texas 76043 Washington, D.C. 20555 Dr. Walter H. Jordan Mr. William L. Clements Administrative Judge Docketing & Services Branch 881 W. Outer Drive U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Washington, D.C. 20555 Ms. Nancy Williams Chairman Cygna Energy Services, Inc. Atomic Safety and Licensing l 101 California Street Board Panel Suite 1000 U.S. Nuclear Regulatory Commission San Francisco, California 94111 Washington, D.C. 20555 1
i
Stuart A. Treby, Esquire Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S. Polk Street U.S. Nuclear-Regulatory Dallas, Texas 75224 Commission Washington, D.C. 20555 Renea Hicks, Esquire Ellen Ginsberg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel P.O. Box 12548, Capitol Station U.S. Nuclear Regulatory Commission Austin, Texas 78711 Washington, D.C. 20555 ,
Anthony Roisman, Esquire Joseph Gallo, Esquire Executive Director Isham, Lincoln & Beale Trial Lawyers for Public Justice 1120 Connecticut Avenue, N.W.
2000 P Street, N.W., Suite 611 Suite 840 Washington, D.C. 20036 Washington, D.C. 20036 Dr. Kenneth A. McCollom Mr. Lanny A. Sinkin Administrative Judge Christic Institute 1107 West Knapp 1324 North Capitol Street Stillwater, Oklahoma 74075 Washington, D.C. 20002 Ms. Billie Pirner Garde Mr. Robert D. Martin Citizens Clinic Director Regional Administrator, Government Accountability Project Region IV 1901 Que Street, N.W. U.S. Nuclear Regulatory Commission Washington, D.C. 20009 Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 Elizabeth B. Johnson Geary S. Mizuno, Esquire Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P.O. Box X, Building 3500 U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Washington, D.C. 20555
-- f.
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Th612ifG. Tignhn, Jr.