ML20211G716

Memorandum & Order Authorizing Admission of Consolidated Intervernors Contention 2,charging Const Delay Due to Util Misconduct,Per 860930 Motion in Response to CLI-86-15 on 860930.Served on 861031

ML20211G716
Person / Time
Site:	Comanche Peak
Issue date:	10/30/1986
From:	Bloch P, Jordan W, Mccollom K Atomic Safety and Licensing Board Panel
To:	CONSOLIDATED INTERVENORS
References
CON-#486-1304 86-528-02-CPA, 86-528-2-CPA, CLI-86-15, CPA, OLA, NUDOCS 8611040119
Download: ML20211G716 (12)

Text

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LBP COCKETR UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before Administrative Judges:

b Peter B. Bloch, Chairman GFfin e _i . a. - y Dr. Kenneth A. McCollom 00cFLQt u 4 ev:r t Dr. Walter H. Jordan MRVED OCT 311986

)

In the Matter of Docket No. 50-445-0LA

)-

TEXAS UTILITIES ELECTRIC COMPANY, et al.)

) ASLBP No. 86-528-02-CPA J

(Comanche Peak Steam Electric Station, )

Units 1 and 2) )

) October 30, 1986 MEMORANDUM AND ORDER MEM3RANDUM (Motion to Admit New Contentions or for Reconsideration)

This decision addresses Consolidated Intervenors' (Citizens Associ-ation for Sound Energy [ CASE: and Meddie Gregory) " Motion to Admit Amended Contentions or, in the Alternative, for Reconsideration of Certain Previously Denied Contentions," September 30, 1986. (Motion.)1 I. Procedural History On May 2,1986, we issued a Special Prehearing Conference Memoran-dum and Order (Prehearing Order) admitting CASE and Meddie Gregory as Consolidated Intervenors and admitting a single contention derived from 1

The Atomic Safety and Licensing Appeal Board has held the pending appeal in abeyance pending our determination of this Motion.

Unpublished Order, October 9, 1986.

Sta onha Beh8jhs TMc2_

New contentions: 2 CASE Contention 6 and Gregory Contention 1. Both Texas Utilities

. Electric Company, g al. , (Applicants) and the Staff of the Nuclear Regulatory Comission (Staff) appealed. Thereafter, the Appeal Board certified the following question to the Comission:

Is the admitted CASE /Meddie Gregory contention . . . foreclosed as a matter of law by Washington Public Power Supply System (WPPSS Nuclear Power Project Nos.1 & 2), CLI-82-29,16 NRC 1221,1230-31 (1982).

In response, the Comission issued CLI-86-15 (September 19, 1986),

in which it provided a compound answer to the Appeal Board's question.

First, the Comission states that the usual rule is that Applicants for a construction permit extension either must show: (1) good cause for the past delay in completion of the plant, or (2) good cause for the NRC to allow more time for plant conpletion. The Comission then advises that If a permittee is seeking a CP extension solely because more time is needed to correct deficiencies, a contention worded like this one and directed only at past conduct would not be sufficient, even if true, to defeat the extension.'

On the other hand, the Comission also advises us that:

Yet to grant a CP extension request in the face of a finding that the past delays were caused by a past and still ongoing policy of deliberate violations would be to reward such wrongdoing.- Surely the drafters of the Atomic Energy Act cannot have had this in mind when they allowed CP extensions for good cause.3 Faced with this realization, the Commission appears to have struck a new balance. It stated the rule that:

2 CLI-86-15, Memorandum opinion at 7.

3 Id_. at 8.

New contentions: 3

[I]f thererequirements,[

ing NRC was a corpoy]andatethat policy to was policy speed construction discarded by violat-and repudi-ated by the permittee, any delays arising from the need to take corrective action would be delays for good cause.5 Subsequent to this Comission action, the Appeal Board provided parties with an opportunity to comment.6 Then, Consolidated Intervenors filed the pending motion.

II. The New Contentions On September 30, 1986, eleven days after the Comission issued CLI-86-15, Consolidated Intervenors filed a Motion to Admit Amended Contentions or, In the Alternative, for Reconsideration of Certain Previously Denied Contentions. The motion responded in a prompt fashion to the Comission's decision.

~

The two contentions submitted by Consolidated Intervenors are:

Amended Contention ~ 1. Since Applicants do not allege that they have a good cause for the delay, they can only prevail if they allege and prove good cause for the extension by demonstrating that they have identified the cause for the delay and have discarded and repudiated the policies that led to and/or caused the delay.

Applicants have not alleged or established that they have discarded and repudiated the policies that caused the delay in completion of construction of Unit 1.

4 The Board interprets this as the Comission's interpretation of Consolidated Intervenors' original contention, which the Commission assumed to be factually true for purposes of this motion even though no proof had yet been offered.

5 CLI-86-15 at 9.

6 Unpublished Order of September 22, 1986.

O New contentions: 4 Amended Contention 2. The delay of construction of Unit I was caused by Applicants' intentional conduct, which had no valid purpose and was the result of corporate policies which have not been discarded or repudiated by Applicants.

The effect of Amended Contention 2 is to restate previous conten-tions in a manner that responds clearly to the requirements of CLI-86-15. Amended Contention 1 also makes a statement about Interve-nors viewpoint about the procedural status of the case.

Previously, Consolidated Intervenors had alleged that Applicants' Comanche Peak Response Team (CPRT) program, which is responsible for reviewing past construction and detennining what changes must be made, was inadequate. In the amended contentions, Consolidated Intervenors have restated their prior contentions and alleged that the Applicants have not " discarded and repudiated" past conduct.

Consolidated Intervenors have always been clearly dissatisfied with the integrity of the CPRT program. Applicants are relying on the CPRT program to examine and correct their plant and they may never examine whether their past conduct needs to be repudiated. Applicants believe that their conduct of the CPRT program amounts to whatever " discarding and repudiating" may be necessary.

CASE Contention No. 3 had alleged that "further delay will be caused by Applicants' refusal and failure to follow NRC regulations. . . ." CASE Contention No. 4 had alleged that "There is . . . no basis for concluding that . . . there is adequate and/or appropriate control over CPSES Unit 1 to ensure that NRC requirements are being and will be met." In CASE No. 7 and Gregory No. 2, Consolidated Intervenors alleged that the CPRT process did (Footnote Continued) l l

New contentions: 5 III. Timeliness Because Consolidated Intervenors filed timely contentions alleging dissatisfaction with the CPRT program, we find that they have always believed that Applicants did not properly discard and repudiate their past conduct. Hence, we find that these new contentions are not late because they are merely a more clearly worded version of portions of prior allegations that were timely.

We also have reviewed the new contentions on the basis of their being late filed and we find that, based on a balancing of the factors stated in 10 CFR @ 2.714(a), these contentions are admissible.8 First, we consider that the issuance of CLI-86-15 provided good cause for late filing. We have already discussed that issue fully. We note that this factor is the most important, particularly in this case where similar allegations were made in timely-filed contentions.

The second and fourth factors, availability of other means to protect petitioners' interest and the extent to which other parties will (Footnote Continued) not itself comply with NRC regulations and that Applicants' history of noncompliance with regulations required license conditions concerning completion of construction.

O Applicants point out that the time to seek reconsideration of our former order has passed and that Consolidated Intervenors should not be permitted to seek reconsideration. However, we find that the issuance of CLI 86-15 provided new insight into applicable law and restarted the clock for motions for reconsideration, thereby making Consolidated Intervenors' motion timely. We have proceeded with the case during the pendency of the appeal by direction of the Appeal Board by Order of October 9,1986 (unpublished).

New contentions: 6 represent petitioners' interest, weigh on the side of admitting this contention. These factors almost always weigh in favor of the moving party.

The third factor, ability to contribute to development of a sound record, is also met. In the related operating license proceeding, one of the Consolidated Intervenors has demonstrated the ability to contrib-ute both to technical and non-technical portions of the proceeding.

Given that the issues are primarily of a non-technical nature, involving the interpretation of management conduct concerning willful violations of regulations or repudiation of past conduct, intervenors' lawyers' extensive experience in NRC proceedings is highly relevant. This factor weighs heavily in favor of admitting the contentions.

The fifth factor, broadening of the proceeding, weighs against admission of this contention, as it almost always does. However, we consider that the other factors have greater overall weight.

IV. Specificity and Basis A. Contention 1 Contention 1 states:

Amended Contention 1. Since Applicants do not allege that they -

have a good cause for the delay, they can only prevail if they allege and prove good cause for the extension by demonstrating that they have identified the cause for the delay and have discarded and repudiated the policies that led to and/or caused the delay.

Applicants have not alleged or established that they have discarded and repudiated the policies that caused the delay in completion of construction of Unit 1.

We agree with Applicants that Amended Contention 1 is not

New contentions: 7 admissible. It differs from Contention 2 largely because it contains procedural assumptions that are more properly the subject of motions than of contentions.

Amended Contention 1 correctly states that Applicants did not allege good cause for past delay. However, this contention contains the phrase "can only prevail," used to suggest that Applicants' failure to allege good cause for past delay should be a barrier to their later deciding to show good cause for past delay.

We are also not prepared to accept the assumption in Contention 1 that it is necessary to identify the cause for past delay in order to repudiate the causes of that delay. It would appear to be easier to renounce a cause of delay which has been carefully isolated; however, we consider it to be proper for Applicants to attempt to persuade us that their current course of conduct is so correct that it constitutes discarding and repudiating whatever the cause for past delay might have been.

B. Contention 2 Contention 2 states:

Amended Contention 2. The delay of construction of Unit I was caused by Applicants' intentional conduct, which had no valid purpose and was the result of corporate. policies which have not been discarded or repudiated by Applicants.

This contention relates to prior allegations that we already-admitted as a contention. We ' interpret this contention in light of the prior

New contentions: 8 contention and the specific bases provided by intervenors.9 Thus, there is sufficient specificity for this contention to be litigable.

The provided bases are more than adequate. They refer to documents that are related to Intervenors' contention, and we are not authorized to analyze those documents in depth at this stage of the proceeding.

We also note that the Operating License case has an extensive history with which this Board is familiar. Hence, we are able to i interpret the bases in light of that record and to determine that there is adequate Basis.

At this point, we know that there were enough problems with the design documents at Comanche Peak that Applicants have stated that they are reviewing essentially 100 percent of the design. Important problems were found in the pipe support and cable tray hanger design areas.

Applicants also have corroborated Staff findings concerning prob-lems in the cuality control audit program. The Staff found many prob-lems relating to the quality of construction. ~ Applicants have not yet finished assessing the seriousness either of the design or construction problems.

Given the stated bases, which alone are sufficient, plus our knowledge of additional information that has been made available to us, we do not yet know the seriousness of this pattern of deficiencies or the extent to which it represents intentional conduct of Applicants.

9 Consolidated Intervenors' bases are set forth'in Appendix A.

l

t New contentions: 9 However, there is an adequate basis for further inquiry, which can occur during the discovery process. At this stage of the proceeding, we do not finally determine facts. Our sole job is to pass on whether conten-tions have provided an adequate basis for inquiring further.

V. Meaning of " Discarded and Repudiated" The Comission has informed us in CLI-86-15 that an extension of a construction permit will not be denied even if intentional delay is demonstrated, providing that the Applicants demonstrate that they have discarded and repudiated their intentional misconduct.

In this case, Applicants have not admitted the intentional miscon-duct that Intervenors allege. However, they also have stated that their actions demonstrate that they have " discarded and repudiated" whatever management errors may have existed in the past.10 Consequently, there is a factual dispute between Intervenors and Applicants about the extent to which present conduct does constitute repudiation and about the extent to which management changes have ameliorated prior management problems. The Board find, under the circumstances, that it will be necessary to litigate these adverse positions in order to resolve this dispute. It is not proper to resolve this knotty problem at this stage of the proceeding.

10 See Permi tees ' Response to Consolidated Intervenors' Motion to Admit. Amended Contentions Or, In the Alternative, for (Footnote Continued) l

4 New contentions: 10 VI. Issues in the Operating License Case Although the Board believes that issues similar to those raised in this case are also pending in the operating license case, the issues do not appear to be identical. In particular, litigation within the operating license case would not result in terminating the construction license and therefore would not be a substitute for Intervenors' right to intervene to contest the extension of that license.

Furthermore , the Board's view about the issues properly in the operating license case is not shared by Applicants. It is Applicants' view in the operating license case that it is not proper, under the admitted contention, to consider the extent to which management practic-es have resulted in quality assurance / quality control ~ breakdowns. The basis for Applicants' argument is their belief that they can correct all plant deficiencies without assessing management blame and that correc-tion of the physical problems is all they need do to counter the allega-tions of Contention 5.

Because that is Appif cants' view, which could be sustained on appeal, the procedural context for raising these management issues is substantially different in the two cases.

(FootnoteContinued)

Reconsideration of Certain Previously Denied Contentions," October 10, 1986 (Response), at 19.

4 D

New contentions: 11-VII. Jurisdiction Applicants state that we lack jurisdiction to reconsider our denial of the previously denied contentions or to admit amended contentions.

With that we respectfully disagree.

We have before us a motion filed in direct response to a Commission order. The Appeal Board has deferred action awaiting our action. We l

are the best equipped forum to consider the relationship of this filing to prior filings, to the law and to the context of this case. There is every reason for us to fulfill our judicial responsibility by addressing these issues rather than ducking them.

0RDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 30th day of October 1986 ORDERED:

That Consolidated Intervenors' Amended Contention No. 2 shall be admitted. In all other respects, Consolidated Intervenors' Motion is denied.

4 New contentions: 12 FOR THE ATOMIC SAFETY AND LICENSING BOARD

[L g Nw Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE-Walter.H. J b

an v f.

ADMINISTRA JUDGE Kenneth A. McCollom hk u ADMINISTRATIVE JUDGE Bethesda, Maryland l

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