ML20210N264
| ML20210N264 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 09/30/1986 |
| From: | Ellis J, Roisman A Citizens Association for Sound Energy, GREGORY, M., TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20210N269 | List: |
| References | |
| CON-#486-0948, CON-#486-948 CPA, NUDOCS 8610060440 | |
| Download: ML20210N264 (15) | |
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9 00CKETED USNFC seFoae Tae '86 0CT -2 Au :25 UNIT 8D STATES NUCLEAR REGULATORY COMMISSION .
derore the Atomic Safety ano Licensing Appeal ~ Board in tue Matter or )
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TdXAS UTILIT18S G8NdRATING COMPANY, ) Okt. Nos. 50-44S-CPA et al.
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(Comancne Peak Steam Electric )
Station, Unit 1)
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MOTION TO ADMIT AMSNDED CONT 8NTIONS OR, IN Tile ALTERNATIVd, FOR RECONSID8 RATION OF CERTAIN PREVIOUSt,Y DENISD CONTENTIONS Pursuant to 10 CFR 3 2.714(a)(3), and for the reasons expresseo oelow, petitioners cad 8 anc Mecaie Gregory l
lConsolidateo Intervenors) request the Boarc's permission to amend tne contention tnat was admitted into tnis proceeding by the Board's order of May 2, 1966, or, alternatively, to admit certain previously donted contentions. The amendea contention is !
attachod.1 1
By t11ing tnia eloaoinJ Consolidatod Intervenors ao not waivo tnoir caste claim tnat tno propor interpretation of tno one admitteo contention makes it tully appropriate under the Commission's most rocent ordor and tnat under 1t all issues Consolidatoo intervenors soon to raise could oe raised. Ilo w e ve r ,
tnat argument will no mado, it noconsary, in response to tne pinading uoaro. to no tiled of Statt anu Appitcants before toe Apen al h0]g %,
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9 Introouction Tne purpose of tnis motion is to mooiry our contention in lignt ot tne Commission's Oroer or Septemoer 19, 19d5 (CLI 13). In this order the Commission has dealt explicitly for the tirst time with wnat happens wnen it is alleged that construction ot a plant was delayed because tne permittee deliberately violated NRC regulations and tne permittee seeks an extension of its construction permit without attempting to show good cause for the celay. Because tne Order oroadens the focus of a construction permit proceeding to incluoe the Applicants' present, as well as past, Dehavior anu policies, we believe that, it this order nad Deen in force when tne Board ruled on our original contentions, CASfs contentions Nos. 3-5 and 7, and Gregory contention No. 4, or at least portions of tnem, woula nave been aamitted. Intervenors Delieve that the issues raised in these contentions can best De litigated through an amended version of tne already aamitted contention framed to address the precise issues raised by the Commission in its recent Oraer. In tne alternative, however, Intervenors move tnat tne Board reconsider its cenial ot the contentions listed aoove.
Coatentions in a licensing proceeding serve to detine the issues to De litigated and the Petitioners' Dasis for asserting tnem. Wnere contentions raise important issues but ara not worded in a tecnnically correct manner the NRC's regulations provide tor annending tnem ratner tnan ru11ng out consideration ot tnose lasues, under to CFR az.714la)(3), a party may amend its original petition at any time up until 15 days betora tue first
s prenearing conterence. Suosequent to tnat date, the doard nas ciscretion to allow a party to ameno its contentions and may also retoriaulate tnem itself, altnougn it is not required to do so.
Pennsylvania Powar & Light Co., ej al. (Susquenanna Steam 81ectric dtation, Units 1 and 2), lop-/v-o, 9 NRC 291, 293-190 (1979); V'.rginia Electric & Power Co. (Nortn Anna Power Station, Units 1 and 21, ALA8-140, b At,C 031 (lis 73 ) .
In decicing wnetner to allow contentions to be amenced af ter tne deadline in 32.714 (a)( 3), tne Boara's discretion is broad.
Pnilaaelpnia diectric Co. (Limerick Generating Station, Units 1 and 2), ALAd-doo, il NRC 1103, 1190 (1965). It is, however, required to case its cecision on tne factors specitied in 10 CPR 4 2.714 t as t i), wnich also governs tne tiling of late-tilea petitions.
Conso11aated Intervenors Delieve tnat in tne instant case all or tnese tactors weign in f avor of allowing tnem to amerna their aoniitteo contention. These f actors will be analyzed one oy one.
- 1. Good cause lor tallure to tile on time.
Goou cause generally consists or "a convincing and reasonaole explanation" of wny a subinission was not suomitted 4
cariier. Commonwealtn t;c tson Company taraidwood Nuclear Power 4
Station, Units 1 and 2), bdP-u d-11, 21 dRC 0 0 9, 0 2 d (19o 5 ).
Wnere ari arnendeu contentiori is trivolveo, tne question oecoines wriy tile contention was not originally suomitted in its amended form.
In tne instant case, tne answer to tnat question is enat Coriso11dateo Iritervonors' original coritention was wordeo to a
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respono to tne Commission's decision or Marcn 13, 19d4 (CLI-db-04), wnich llani ted the scope ot the CPA proceeding to wnether TOEC nao "g000 cause" tor an extension as aetined in Wasnington Public Power Supply System (WPPSS Nuclear Project Nos. I and 4),
CL1-04-49, 10 NRC 1221, 1229 (1962).2 The Commission aaded in a tootnotes i
Except insofar as we direct tne Licensing Boaro to follow WPPSS, supra, on the scope of tne construction permit extension proceeding, our decision today is without prejudice to the Licensing Boaro's ruling on the admissiDility or tne merits of any contentions CASS may present to it.
CL1-do-04 at 14, n. d.
Tous it appeared tnat Consoliaated intervenors snould rely on the WPPSS decisions' analysis or what does and does not constitute good cause tor construction permit extension.
Tne citeo WPPSS opinion states that to snow good cause a parmit holder must snow good cause tor tne celay that necessitaten an extension request. Even wnen celay resulted from tne actions or tne permit nolder, it may still De aole to show 9000 cause unless tnese actions were "cilatory." Id. at 1429, 1231. Tne Appeal doard suoseguently interpreted tnia opinion t u r tno t! in ALAu-/24 of nolding that allatory conduct is conduct whicn intentionally delays construction without a valid purpose.
17 teac a40, S54 (1963).
4 811p Opinion, CLI-db-04, at o-9.
In CLI-62-29, tne Commission also analyzed and rejected as insutricient one of tne contentions submitted oy the intervenor in tne case, wnich alleged tnat tne permittee lacked good cause Decause celays were caused Dy violations of NRC regulations. The Commission decideo that wnere delay was caused oy the need to correct sucn violations good cause tor the ceiay existed. CLI-82-29, supra, at 14Ju-J1. On the surrace, this part of the cecision might' appear to contlict with tne rest, out the apparent contlict is reconciled it one realizes tnat the intervenors in WPPSS nad not alleged that tne violations were caused oy dilatory conduct on tne part or tne permittee. Consolidated Intervenors in tne instant case read WPPSS as a wnole to hold that to snow a lack of good cause it was not sutticient to show tnat delay was caused by violations on the part ot the permittee and that, insteaa, they must prove tnat the permittees' past conduct had ceen oilatory.
1 Applicants, nowever, urged a different reading of the case.
i Tney maintained tnat when a permittee requests an extension in order to detect and correct violations it nas good cuase for an i
extension regardless at now tnose violations came aoout. As the Appeal Board suggested in its Memorandum and Order of July 2, l
1960, sucn an interpretation would have meant that Applicants
, would prevali in the instant case as a matter ot law. Order ot July 4 a t 9, n. 1J. Moreover, it tne Commission naa intended l this interpretation, it seems as it CLI-du-04 would have reterred tne doaru ano tne parties to pp. 12J0-31 of tne WPPSS opinion,
rather tnan t o p. 1429, wnich tocusses on tne need to address tne reasons tor aplay ano wnetner tne real reason was oilatory conduct on tne part or tne perinittee.
Intervenors tneretore focussea CAbd Contention 6 and Gregory Contention 1 on tne allatory nature ot Applicants' conduct. But oecause ALAu-722 implies tnat even when a permittee nas acteo in a ollatory manner the doard must still snake a Judgment as to wnetner to grant an extension (ALAu-724' at 33J), Consolidated intervenors included otner contentions focusseo on Applicants' present conduct and wny tne extension snould not ce granted.
Because CAST utsagreea witn tne narrow limits of the WPPSS decision, CASd included still other contentions that also incluced allegations aoout Applicants' present conduct.J J
Tne contention that was aamitted into tne instant proceeding contains two separate allegations: first, tnat Applicants nave not snown tnat they had good cause tor tne delay in cordpleting construction of their plant; and, secona, tnat the celay was caused oy tnelr aeliberate retusal to correct deficiencies in wA/wC ano aesign. Intervenors' other contentions, in particular Gregory No. 4 and CAbd Nos. 3-5 and 7, alleged, inter alia, that Applicants still did not intena to comply witn NRC requirements and tnas aid not nave good cause for the extension. These contentions, taken as a whole, allege tnat there nas Deen no change in policies and essentially no change in inanagement personnel on Applicants' part. Consolidatea Intervenors oelieve, nowever, tnat tneir amended contention addresses these issues in a enore succinct manner Wn1Ch more Carerully tracks the Commission's recent Order. Tnus tne cetter alternative would be tur the doard to aamit rno amended contentions rattler tnan those that were cented earlier.
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The Licensing Board turned to p. 1229 of tne WPPSS decision ds directed Dy the Commission (see Licensing Boara Prenearing Conterence Oraer of May 2, 19db, pp. 3-4, nereafter Order b/2/o6) and nave adopted the same interpretation of it as dic Consolicateo intervenors. It rejected all the contentions concerning Applicants' present conduct, stating tnat it did so "oecause ot our interpretation ot the law concerning contentions tnat are aamissiole in construction permit extension proceecings."4 Order S/2/o6 at 11. In tne Boara's general alscussion ot tne law concerning aamissioility of contentions, it tocused on tne WPPsS issues of good cause for delay and the detinition of dilatory. Althougn the doard also noted the statement in Abad-742 tnat even it a permittee is dilatory the Boaro may still aecide to grant an extension, it did not interpret tnat statement to allow tne admission of contentions concerning Applicants' present policies or conduct, such as those 4
The doard also referred in a f ootnote to the whole of Applicants' Answer ot April 17, 1986, without explaining wndt it rouna convincing in that answer. Order $/2/d6 a t 11, n. 8.
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descrioea aoove.3 It is important to note that Consolidatea Intervenors could not appeal tne dental or tne contentions tnat aealt witu Applicants' continued misconduct because of tne limitations imposed oy 10 CFR 34.714a. Onder s 2.714 a t o) an intervenor may only appeal an order wholly aenfing a petition to intervene, wnere a contention is admitted and otners are denied, those tnat nave oeen ceniea cannot be appealed. Gulf States Utilities Co.
(River bena Station, Units 1 and 2), ALAB-Jz9, 3 NRC 007 (1976).
3 Tne Board explicitly considered the passage on p. 123u of tne WPPdS opinion, wnicn provices tnat good cause for an extension can be rouna even it tne permittee nas violatea NRC regulations.
Tne doard interpreted tnis as tollows:
This passage places the rollowing gloss on CL1-d2-29: tnat it is not sutticient to allege tnat a delay has oeen causea by violations of applicaoie regulations. Tne allegation must show more than a mere violation. In those circumstances, it must allege as well that applicants were dilatory in tne conouct of tne construction work and tnat tnis ractor was the principal factor for tne need for an extension of the completion ceaalines.
Order 3/4/db at J-4.
Nor woulo a motion for reconsideration have oeen appropriate at tnis time. As discussed aoove, tne uoard's view ot tne legitimate scope ot issues in the extension proceeding represented a logical application or the language of the WPPSS aecision, which it naa oeen directea to obey. At no time dia tne Commission suggest, as it does in its most recent Order, tnat the rocus of tnis construction permit appeal proceeding should not be on the cause for tne celay out ratner on tne Applicants' oiscaroing ana repudiating the policies tnat cuased that delay.
Conso11aated intervenors reasonaoly relied on tnat Commission rocus ano naa no reason to seek from this Board reconsideration of its day 2 Order.
Tne Commission's opinion of September 19, nowever, puts the situation in an entirely ditferent lignt. The main holding of the opinion states:
We believe that the appropriate balance is struck Dy nolding that it tnere was a corporate policy to speed construction oy violating NRC requirements and that policy was discarded and repudiated by the permittee, any delays arising trom the need to taxe corrective action would oe delays for good cause.
CL1-db-05 a t 9 tempnasis adaed).
Tnus tne opinion focusses on Applicants' present conduct and policies wnere, as nere, Applicants ao not seen to prove good cause tor tne delay. Tnis is the tnrust of the original uregory Contention v2 ana CASE Contention v7.
Althougn tne deptemoer 19 opinion in a sense broadens tne focus ot construction permit extension proceedings to rocus on present as well as past conduct of tne permittee, it also or course, narrows the circumstances under wnich intervenors can successtully allege tnat a permit snould not De extenced. Even it tne permittee caused the celay by deliberately violating NRC regulations, it still nas 9000 cause for an extension tor the purpose or correcting tnose violations as iong as it nas "alscaraed anc repuciated" the unacceptacle policy. Memorandum dno Order or Septemoer 19, 19db (CL1-Bo-lo) at 9. But tne Connaission dia not intend that an extension should be granted wnen tne Applicant had not had such a cnange of neart and certainly not wnere it ooes not even allege sucn a cnange of neart. Tne Commission stated clearly tnat:
to grant a CP extension request in tne face or a finding tnat the past delays were caused by a past and still ongoing policy of delioerate violations would oe to reward such wrongdoing. Surely the drafters or tne Atomic Energy Act cannot nave nad this in saind wnen they allowed CP extensions for 9000 Cause.
10 at c.
Intervenors' allegations as laid out in their contentions as a whole descrioe precisely the situation to wnich tne Commission reters nere. But Intervenors dio not comoine their allegations into contentions covering past allatory conduct as well as present po11cies, since it appeared in 11gnt or tne Commission's earlier oroers tnat it was not appropriate to ao so.
Licensing Boaras nave otten allowed contentions to De amendeu or new contentions to De introduced wnen new materials come to 11gnt which a party could not have known about wnen its i
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original contentions were trameo. See, e.g., Commonwealtn Edison Company (dralawood Nuclear Power Station, Units 1 and 4),
L8P-oS-11, 21 NMC bu9, oJo; Philaceipnla Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-duo, 21 NRC 11o3 (1965);
Cincinnati Gas & electric Co., et al. (w1111am d. Zimmer Nuclear Station), Lee-79-22, 10 NRC 213, 214 (1979). The new materials nave generally consisted or new evicence or new issues raised by developments in tne construction process, but the same reasoning can De applied to wnat nas occurred in tne instant case, i.e.,
a modification of the law. Consolidateo Intervenors aid not file their contention in its amended torm Defore Decause no one, including tne Licensing Boaro, consicered it appropriate to ao so.
Consolidatea Intervenors also note tnat tne Commission's Orcer or Septemoer 19 seems to allow for the possioility of amencing the contention oy pointing out tnat, "as currently wordea, it focusses only on tne permittee's past conduct. CLI-do-da at 7 tempnasis adoed). Consolidated Intervenors now file this amended version within a reasonaole time following tneir receipt ot tne Commission's September 19, 19do, Oraer. Thus they nave 9000 cause tor Liling at tnis time.
2 Availability or other means by wnicn petitioners' interest will De protected 4.
Representation or petitioners' interest og existing parties Tnese two tactors are appropriately considered togetner, since tney are so closely relatea. To alspose or tne latter tirst, no otner party to tne proceeding w111 represent
Conso11 dated Intervenors' interests, since botn parties oppose tne aamission or any of Consolidated Intervenors' contentions.
There are no otner means availaole oy snicn Consolidated Intervenors' interest will oe protectea, since tnere is no otner torum in wnica to pursue tne issue or wnetner good cause exists for the extension. It will De ironic it Applicants argue otnerwise, considering that they have maintainea with increasing Venemence tnat tne issues nere are not even related to those Oeing litigated in the OL proceeding. See, e.g., Applicants' Response ot August 1, 1960, to CASE Request for Production of Documents (June 27, 19oo; ana tiotion for Protective Order, at 3.
("Tne issues in the two proceedings are distinctly ditterent, aloeit involving tne same plant.") Tne Staf f's review of tne 9000 cause issue coes not constitute adequate protection of a private party's rignts.
Pniladelpnia 81ectric Company, supra at 1191, fn 27, citing Houston Lighting & Power Co. (South Texas Project, Units 1 ano d), ALAd-799, 21 NRC 3 60, 384 n.108 (19od). In tne present case tne Statt also maintains tnat the.
CPA proceeding is tne appropriate forum in which to litigate good cause. NaC orlet tried in tne Court or Appeals for the District or Columoia Circuit in Citizens Association for Sound Snergy v.
NRC ( No. 0 0-11 o 3 J , filed June 9, 19 d o , a t 3 0-31.
- 3. Extent to wnich petitioner mag be expected to assist in
.aeveloping a souna recora in evaluating tactor 3, Boaras nave taKen into consiaeration tne previous experience or parties ano tnelr counsel in litigating licensing cases as well as their conouct in tne
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proceeding up to the point wnen a late or amended contention was tiled. See, e.g., Pn11adelpnia 81ectric Co., supra at 1191; Commonwealtn Edison Co. (LdP-oS-11), supra at 029. Consolidateo intervenors and their counsel nave years of experience in litigating licensing cases and in working with tne Board on tne related operating license proceeding. Tne Board can Judge for itself wnether tney nave the desire and expertise to contribute to aeveloping tne record here.
Since tne issue nere is not wnetner to admit Consolidated Intervenors out whetner to aomit the amended contention, it is also pertinent to asx whetner the amended contentions will develop a oetter or worse record than tne contention as presently worded. Tne amended contentions allow for tne development of a record tnat incluces evidence on wnetner Applicants' po11cles nave or nave not cnanged. In lignt or tne September 19 Order, only tnis kina or recoro will provide tne Board witn tne f acts it will neeo to decide wnetner Applicants nave 9000 cause for their requested extension.
- 3. Tne extent to wnich tne petitioners' participation will oroaaen tne issues or aelay tne proceealny Here again, since Consolidatea intervenors are alreaay participating, tne real issue is wnether tne introduction of tne amended contentions will oroaden the issues or delay tne proceeding.
Tne issues nave alreacy oeen oroadened oy tue Commission's Order or Septemoer 19 inasmucn as i t snit ted tne rocus or a good e l 1
cause aetermination to incluae present as well as past conduct.
Tne antendea version or tne contention merely rewords it to respona to this snitt in empnasis.
It tnis snitt in empnasis celays tne proceeding, Consoliaated Intervenors ratner than Applicants will suf ter Decause tne longer it is delayea the more likely it is that the case will oecome moot.
Conclusion All tive of tne factors specifiea in 10 CPR 32.714(a)(i) welyn in tavor or amending tne aamitted contention.
In tne alternative, Consolidateo Intervenors move that the Boara reconsider its denial of CASE Contentions 3-5 and 7, and Gregory Contention 2. Consolicated Intervenors are aware that unaer lu CFR 32.751a(d) ODjections to a ruling of the Boara must orainariy oe maae witnin 5 days af ter service of tne Order.
Intervenors believe, nowever, that the same situation that creates 9000 cause for amending the contentions also makes it appropriate for the doard to consiaer tnis alternative means of seeing tnat justice is done.
Respectrolly suomitted, s
.- '-- AP ANTHONY Z.6AQFSMAN /' '
Trial Lawyers for Puolic Justice 200U P Street, NW, poll Washington, D.C. 2003o (202) 463-6000 Counsel for Mecaie Gre vory
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__. k' gp J{ANITA ELLIS /
3 100 Soutn Polk I Oallas, TX 75224 (214) 946-9446 ;
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Law Stucent Representative for CASE Ann tiunter s
Antiocn Law Scnool .
( Datea: Septemoer 3u, lyde t
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