ML20210J622

Comments on Memorandum & Order CLI-86-15 Re Admissibility of Case/M Gregory Contention 1.ASLAB Should Reverse ASLB Decision Admitting Consolidated Contention & Dismiss Intervention Petitions.Certificate of Svc Encl

ML20210J622
Person / Time
Site:	Comanche Peak
Issue date:	09/30/1986
From:	Mizuno G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#486-917 CLI-86-15, CPA, NUDOCS 8610010194
Download: ML20210J622 (11)

Text

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411 00CMETED USNRC 1

16 SEP 30 P2I49

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ' '

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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL kbIRD .

b In the Matter of )

. )

TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-CPA COMPANY, et _al.

)

(Comanche Peak Steam Electric )

Station, Unit 1) ) -

NRC STAFF COMMENTS ON CLI-86-15 Geary S. Mizuno Counsel for NRC Staff September 30, 1986 8610010194 860930 PDR ADOCK 05000445 PDR G

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL' BOARD In the Matter of )

)

TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-CPA COMPANY, et _al.

)

)

(Comanche Peak Steam Electric ) .

Station, Unit 1) )

NRC STAFF COMMENTS ON CLI-86-15 Geary S. Mizuno Counsel for NRC Staff September 30, 1986 i

{

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-CP/:

COMPANY, et al. - -

)

)

(Comanche Peak Steam Electric )

Station Unit 1) )

NRC STAFF COMMENTS ON CLI-86-15 I. INTRODUCTION On September 19, 1966 the Commission issued a Memorandum and

' Order, CLI-86-15 in this proceeding. CLI-86-15 provides the Commission's answer to the question certified to it by the Atomic Safety and Licensing Appcal Board regarding the admissibility of CASE / Meddle Gregory Contention 1.

On September 22, 1986, the Appeal Board issued an order inviting the parties to file briefs with the Appeal Board commenting on CLI-86-15.

In this filing the Staff presents its position on the effect of CLI-86-15 on this proceeding.

II. DACKGROUND On May 2, 1986, the Licensing Board issued an order admitting CASE and Meddle Gregory as Consolidated Intervenors in this proceeding, and admitting a single consolidated contention. See "Special Prehearing i

_ _ - _ _ . _ . . _ _ _ _ _ _ _ _ . ___.._m_.. - _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ . _

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Conference Memorandum and Order." The consolidated contention of CASE and Meddie Gregory asserts:

Applicants have not met their burden of proving

~

that the delay in completion of construction was

' ilot 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 ~ for 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,

11. 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 i

promptly identify and correct design deficiencies, and deliberately refused to take positive action to correct such deficiencies.

Doth the Applicants and the Staff appealed from the Licensing Board's

( decision. After the filing of briefs and oral argument, the Appeal Board I

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certified the following question to the Commission, pursuant to 10 C.F.R.

I 2.718(i):

Is the admitted CASE /Meddie Gregory contention

... foreclosed as a matter of law by

~ Washington Public Power Supply System (WPPSS Nuclear Project Nos. I a 2), CLI-82-29, 16 NRC 1221, 1230-31 (1982)?

Memorandum and Order (July 2,1986) slip op, at 11.

III. DISCUSSION .

The Commission's decision in CLI-86-15 must result in the reversal of the Licensing Board's decision admitting 'the consolidated contention of CASE and Meddie Gregory. According to the Commission, permittees may demonstrate good cause for a construction permit (CP) extension in two ways. On one hand, a permittee may establish good cause for the extension by showing that there was good cause for the past delay in plant completion, citing the Commission's earlier decision in Public Service Company of New flampshire (Seabrook Station, Unit 2), CLI-84-6,19 NRC 975 (1984) (Scabrook). CLI-86-15, slip on at 5.

Alternatively, under the Commission's previous holding in WPPSS, a permittee may show good cause by demonstrating that there is at present good cause to allow more time for plant completion. CLI-86-15, slip op.

at 5-6. The Commission indicated that its decision in WPPSS was intended to encourage permittees to " conduct vigorous internal investigations and remedial safety actions by not penalizing them for any completion delay caused thereby." CLI-86-15, slip op. at 6, citing WPPSS, 16 NRC at 1230-31. Ilowever, in CLI-86-15 the Commission expanded upon the rationale of WPPSS to hold that the determination of

present, good cause for a CP extension does not depend upon whether the violations requiring correction were innocent, as opposed to negligent or

\

intentional. CLI-86-15, sAog at 6.

Thus, the-Commission stated:

.s [I]f a utility were to adopt a corporate policy to construct a plant in willful violation of NRC requirements, but were then to reverse that I policy, remove the wrongdoers, and embark on a new effort to construct a safe plant . . . we could find that the new policy constitutes " good cause" for an extension. We will not penalize a curren management for the mistakes of its predecessors in,t this regard.

Id., citing Metropolitan Edison Company (Three Mile Island Nuclear Station , Unit 1), CLI-85-2, 21 NRC 282, 296-306 (1985),

Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1),

CLI-85-9, 21 NRC 1118,1135-40 (1985).

l The Commission then proceeded to apply these principles to the situation in this proceeding. The Commission concluded that if Applicants' request for a CP extension was predicated upon present good cause due to the institution of a corrective action program (a supposition j which the Commission apparently feels is supported by the representations in the Applicants' request, see CLI-86-15, sp og at 7, n.3), then the ,

l, CASE /Meddie Gregory consolidated contention is barred by WPPSS because it focuses only upon the Applicants' past conduct. Id., at 7. As the i '

Commission stated, a " contention worded like this one and directed only at past conduct would not be sufficient , even if true, to defeat the extension." Id.

On the other hand, the Commission declined to apply the Seabrook

analysis to the circumstances of this proceeding. The Commission noted i

that an unthinking application of the Seabrook holding would result in a situation where a finding that construction delays arose from a deliberate corporate policy to construct the plant in violation or NRC requirements would " virtually never defeat a CP extension". This is because such a policy could not be characterized as " dilatory", since it is likely that the policy was intended to speed, rather than delay, construction.

CLI-86-15, s_ lip op. at 7-8. Moreover, the Commission pointed out that the Seabrook analysis would result in dismissal of contention,s "even if the deliberate corporate policy to construct in violation were an ongoing one, for even an ongoing policy would have the valid business purpose to speed construction and not be ' dilatory'". Id. at 8. Accordingly, the Commission declined to apply the Seabrook framework to this proceeding.

The Commission instead decided to follow the analysis of WPPSS, which balanced the need to deter wrongdoing against the desire of the Commission not to penalize current management for the mistakes of its predecessors. Accordingly, the Commission held:

[I]f there was a corporate policy to speed construction by violating NRC requirements, and that policy was discarded and repudiated by the permittee, any delays arising from the need to take corrective action would be delays for good cause.

Id. at 8-9. Thus, the Commission indicated that a contention worded like

. that of CASE's and Meddie Gregory's consolidated contention, "would not be sufficient, even if true, to defeat the [CP] extension. Id.

i It is the Staff's position that the Commission answered the question certified to it by the Appeal Board in the affirmative, holding that WPPSS precludes admission of the admitted CASE /Meddie Gregory consolidated

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contention as a matter of law, because the contention is predicated on. the past conduct of the Applicants. See CLI-86-15, s_ lip op. at 6-7.

It is also the Staff's view that the Commission went further to decide that the WPPSS, ' rather than the Seabrook analysis should be ' employed to determine whether or not good cause exists for a CP extension in proceeding such as these, where it is alleged that the permittee's policy was to violate NRC requirements. Thus, good cause would be found where the policy of violating NRC requirements is discarded and repudiated by the permittee - for example, where the permittee were to

" remove the wrongdoers and embark on a new effort to construct a safe plant in full compliance with NRC requirements." See CLI-86-15 at 6.

It has not been disputed that Applicants have brought in new management officials, and have instituted a reinspection, reevaluation and corree-tive action program for both Units 1 and 2 of the CPSES facility.

Cf. CLI-86-15 at p.7, n.3. The Staff submits that under these circumstances, the Commission was correct in concluding that the CASE /Meddie Gregory consolidated contention, being directed only at past conduct, is not admissible in this proceeding. Id. at 9.

In light of the Commission's holdings , the Staff submits that the

. Appeal Board should reverse the Licensing Board's decision admitting the consolidated contention. The consolidated contention was the sole contention admitted by the Licensing Board, and its rejection deprives the Consolidated Intervenors of any further grounds for intervention. See Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424 (1973). Dismissal of the

petitions for intervention and termination of the proceeding by the Appeal Board is appropriate under these circumstances.

IV. CONCLUSION The Appeal Board should reverse the Licensing Board's decision admitting the consolidated contention, dismiss the intervention petitions of Consolidated Intervenors CASE and Meddie Gregory, and terniinate the proceeding. .

Respectfully submitted, m _

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=

Ge,ry zuno Counsel to NRC Staff Dated at Bethesda, Maryland this 30th day of September,1986 i

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00LKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

~86 SEP 30 P2 :49 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD GFFICE 0; FFU ltA -

00CKLi4rri 4 h Fa f 3 -

In the Matter of ) BRANOi

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TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-4f 15-CPA COMPANY, et al.

)

)

(Comanche Peak Steam Electric )

Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF COMMENTS ON CLI-86-15" in the abovc-captioned p'roceeding have been served on the following by deposit in the United States mail, first class or as indicated by (*)

through deposit in the Nuclear Regulatory Commission's internal mail system, 'or (**-) hand delivery, this 30th day of September,1986:

Peter B. Bloch, Esq. , Chairman

• Mrs. Juanita Ellis Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Polk Street U.S. Nuclear Regulatory Commission Dallas, TX 75224 Washington, DC 20555 Nicholas S. Reynolds, Esq."

Dr. Kenneth A. McCollom William A. Horin, Esq.

Administrative Judge Bishop, Liberman, Cook, 1107 West Knapp Purcell & Reynolds Stillwater, OK 74075 1200 17th Street, N.W.

Washington, DC 20036 Elizabeth B. Johnson Administrative Judge Roy P. Lessy, Jr. , Esq.

l Oak Ridge National Laboratory Wright & Talisman, P.C.

, P.O. Box X, Building 3500 Suite 600 Oak Ridge, TN 37830 1050 17th Street, N.W.

Washington, DC 20036-5566

, Dr. Walter II. Jordan Administrative Judge Mr. W. G. Counsil 881 W. Outer Drive Executive Vice President Oak Ridge, TN 37830 Texas Utilities Generating Company 400 North Olive Street, L.B. 81 Billie Pirner Garde Dallas, TX 75201 Citizens Clinic Director Government Accountability Project 1901 Que Street, N.W.

Washington, DC 20009

Robert D. Martin William L. Brown, Esq.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 1000 611 Ryan Plaza Drive, Suite 1000 Arlington, TX 76011 Arlington, TX 76011 Robert A. Wooldridge, Esq. Mr. James E. Cummins Worsham; Forsythe, Samples Resident Inspector / Comanche Peak a Wooldridge Steam Electric Station 2001 Bryan Tower, Suite 2500 c/o U.S. Nuclear Regulatory Commission Dallas, TX 75201 P.O. Box 38 Glen Rose, TX 76043 Anthony Z. Roisman, Esq.**

Trial Lawyers for Public Justice Thomas G. Dignan, Esq.

2000 P Street, N.W. , Suite 611 Ropes & Gray Washington, DC 20036 225 Franlin Street Boston, MA 02110 William II. Burchette, Esq.

Mark D. Nczette, Esq. Atomic Safety and Licensing Appeal Heron, Burchette, Ruckert Board Panel

• a Rothwell U.S. Nuclear Regulatory Commission Suite 700 Washington, DC 20555 1025 Thomas Jefferson Street, N.W.

Washington, DC 20007 Docketing and Service Section*

Office of the Secretary Atomic Safety and Licensing Board . U.S. Nuclear Regulatory Commission Panel

• Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Robert A. Jablon, Esq.

Spiegel & McDiarmid 1350 New York Avenue, N.W.

Washington, DC 20005-4798 G

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