ML20211J743

Motion for Reconsideration of ASLB 861030 Order Denying Consolidated Intervenors Contention 1.Argument Supporting Reconsideration Presented.W/Certificate of Svc

ML20211J743
Person / Time
Site:	Comanche Peak
Issue date:	11/04/1986
From:	Ellis J, Roisman A Citizens Association for Sound Energy, TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
To:	Atomic Safety and Licensing Board Panel
References
CON-#486-1424 CPA, NUDOCS 8611110247
Download: ML20211J743 (8)

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UEFORE THE

• UNIT 80 STATES 00jg g ED NOCLEAR R8GULATORY COMMISSION Before the Atomic Safety ana Licensing Boaroly EN -7 R2:27 In tne Matter of ) CfflCE C4 ;EL. EM '

00CK Eilh TT'

) np3. ,&m TEXAS UTILITIES GEN 8 RATING COMPANY, ) Okt. Nos. 30-44S-CPA et al. )

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(Comanche. Peak Steam Electric )

Station, Unit I) )

CONSOLIDATED INTERVENORS' MOTION FOR RECONSIDERATION By oraer cated October 30, 1986, this Board denieo admission of Consolidated Int'ervenors' Contention I.

Consoliaated Intervenors respectfully request tnat the Board reconsiaer the denial. The contention is intenced to narrow the issues to De'11tigatea in this proceeding to the' single issue raised oy TudC's application for an amendment and decided by the Staf f's granting of that amendment. As such, it is an appropriate contention whicn conforms to the policy of the NRC to avoid raising issues in a licens~ing proceeding that are beyond the scope of that proceeding.-

One critical f actor makes this case dif ferent from the typical licensing proceeding: the utility has already received

-tne license amendment it sought and the hearing is supposed to decide whether the license amendment should have been granted.

TUEC nas presentea its case and the licensing decision has oeen made by the Staff. Absent a new application for a construction permit extension, TOEC is cound to the bases, although not the supporting tacts, given in its alreaaf filed and approved 8611110247 861104 PDR ADOCK 05000445 G PDR D503

application.

Consolioated Intervenors' Amended Contention 1 alleges that in its application TUSC'has not claimed that it has a good cause for the celay in construction. This Board has twice acknowledged the validity of that allegation. Memorandum and Order, May 2, 1986, p.10, and Memorandum and Order, Oct. 3 0, 19 8 6, p. 7.

Consolidated Intervenors are entitled to have this contention admitted into this proceeding so tnat it can seek a ruling on the contention ano foreclose TUSC from presenting evidence that is intenaea to prove that its celay in construction was for a good cause. Before TUSC can make such a claim and offer evidence in support.of that claim, it must do what it has steadf astly ref used to do: it must g.ive ;its version of why construction at Unit I was delayed and allege that the delay was for a good cause. That will provide a claim which Consolidated Intervenors can contest and, if appropriate, file a contention opposing the claim. Since the Commission in CLI-86-15 has identified two possible theories for obtaining a construction permit extension, the purpose of Contention 1 is to narrow the issues in this proceeding to the only theory c laimed by TUEC, i.e., that it has a good cause.for the extension.

In its Memoranoum ana Oraer this Board rejected Contention 1 (p. 7) because:

1. "it contains assumptions tnat are more properly the subject of motions than of contentions;"

2. it "suggestisj that Applicants' tailure to e llege good cause for past delay should be a carrier to tneir later ceciaing to show gooo cause for past delay;" anc MR

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.g 3 J. f 'it tncor.rectly . assumes "that it is necessary to z ,n- a .

identify the cause for past delay in order _to repudiate

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delay."

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We r'4spectfully otsagree with the first reason, agree with

, p 7 the second statement, but oisagree with conclusion ~ reached from it, and a'cknowledge in theory the correctness of the third conclusion out 'suggest an alternative remedy to striking down the 4:

y en' tire contention.

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% ' As already aiscussed above, the contention in question is a

preliminary to a motion for summary disposition on one of' the two possiole theories TUSC coulo use to-seek to obtain a s ,;

construction permit. extension, i.e., on the theory that it has a

.s a sgohd,cause for the' belay. The fact-that the issue can be-

.. s prksedted by motion is not in and of'itself a rea' son to forbid

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the contention'. The' contention here, as in any case, focusses the intervenor's, concern and puts the utility on notice ' that it -

cannot otfer evicence to support or prevail on a. tneory tnat it has not ' claimed. Witnout requiring TUEC to make such a claim, Consolicated Interven_ ors cannot know what to plead as a cont'ention in.<oppocition to TUSC's unarticulated reason for the ce lay. The proper procedure is for Consolidated Intervenors to contend that the f ailure of TUEC to make the required allegation Is a f a.tal defect, and once the contention is admitted move for summary disposition. TUSC can only avoid this course by' seeking

.to atitend its construction permit extension application or filing a new onri,~1n which it alleges its position.

The Board correctly finds that Consolidated Intervenors'

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contention seeks to bar TUEC f rom later showing that they have good cause for delay, at least until such time as they file an acceptable pleading in which they allege what is that good cause and thus provide Consolidated'Intervenors with an opportunity to file contentions in opposition to that allegation. A permittee is as capable as an intervenor of being denied an opportunity to present evidence'and make proof if it has not first pled its position. The need to articulate contentions and bases cannot, within tne limits of due process of law, be a one-way ~ street.

Concededly, in most cases -- maybe all cases but this one -- the applicant fully articulates its contention and bases in its application and there is no need to require more. TUEC, howe,ver, nas already proven itself to.be far different than any other applicant, not the least significant example being its singular and pr.ecedent-setting f ailure to timely seek a renewal of its construction permit. It is manifestly unfair to Consolidated Intervenors to hold, as this Board appears to do here, that an intervenor must be prepared to present an af firmative case on and oefend against not only- the claims an applicant has made but also the ones it might have made.

The Board finas that in th@ory a program such as the CPRT could be so complete tnat it y sul ooviate the need for identifying the cause for the delay. If tnis is correct, the '

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s Board should not reject Contention 1, only a small portion of which claims that the cause for delay must be revealed, but should qualifiedly admit the contention by listing the factors -

tnat must exist in the CPRT program to avoid the need to find the cause for the delay. Those tactors would have to include at i

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least 1004 reinspection (avoiding the need to.use generic implications to broaden areas of reinspection and/or sample sizes) and total independence of the ef fort including all aecisionmakers at every level for program aevelopment and implementation, including all rework (avoiding the neea to Identity which persons causeo or allowea tne aelaying problems to h occur). Absent an identification of the factors to be met ano the conditional acceptance of the contention, Consolidated Intervenors are denied the right to pursue a contention based on the mere possibility that TEUC will meet a standard that this Board has not defined.

F ina lly, the contention not only relates to TUEC's f ailure

[{ to pleaa any good cause for delay but also its f ailure to provide 9 -ti 1 3 any bases ~or evider2ce to support its claim that there is good s

cause for t;he extension. The f act. is TUSC was granted the extension of its permit in the f ace of allegations by CASE that 4

the delay was. caused,by its own deliberate refusal to obey 1

regulations. The Cmamission nas rulea that in such a case the

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extension cannot be granted unless the utility discards and repuolates the past policies and replaces the responsible parties. TUEC has never claimed to have done so because it has never ioentifiea the f ailed policies and never identified the responsible par ties.1 On the recora, as opposed to in the leg a l-1 The existence of the CPRT cannot De the required replacement

• l of persons and discontinuing and repudiating of policies since it 1s not a program '"of record but is insteaa the creation of TURC's lawyers, not of TUEC itself or of its management.

Prenearing Conrerence (November 12, 1985), Tr. p p. 24,238-239. It is a device to ra't ionalize TUSC's past conduct, not to correct i t.

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pleadings, TUEC should .not nave nad an extension of its permit ana the Staff should not have granted it. Consolidated Intervenors should be allowed too plead that in their contention aIso.

Consolidated Intervenors respectfully request that this

~ Board reconsider that portion of its October 30 Memorandum and Order that denied admission of Amended Contention 1 and allow the conte'ntion.in the case.

Respectfully submitted,

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kNTriONY Z. SMg Trial Lawy r for Public Justice 2000 P Street, NW, (611 Washington, D.C. 20036 (202) 463-8600 Counsel for Meddie Gregory ANITA ELLIS

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26 South Polk

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a41as, TX 75224 (214)946-9446 Representative for CASE Dated: November 4, 1986'

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UNITED STATES NOCLEAR REGULATORY COMMISSION CO}gIEC

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Before the Atomic' Safety and Licensing Appeal Boara 16 NOV -7 M2:28 In the Matter of )

) GFFILE D> . E , .. y i TEXAS UTILITIES GENERATING COMPANY, ) Okt. No@.CKjh /Clsi- i et al. )

)

(Comanche Peak Steam Electr.ic )

Station, Unit 1) )

CERTIFICATE OF. SERVICE I hereby certify that copies of CONSOLIDATED INTERVENORS' MOTION FOR RECONSIDERATION were served today, November 4, 1986, Dy first class mail, or by hand where indicated oy an asterisk, and by' Federal Express where indicated by two asterisks, upon the f o llowing :

Aaministrative Juage Peter Bloch s

-0.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr.. Walter H. Jordan u81 West Outer Drive Oak Ridge, TN 37830 Dr. Kennetn A. McCo llom 11U7 West Knapp Stillwater, OK 74075 Elizabeth 8. Johnson Oak Ridge National Laboratory P.O. Box X, Building 3500 Oak Ridge, TN 37d30 Nicholas Reynolds, Esq.

Bishop, Liberman, Cook, ,

Purcell & Reynolds 1200 17th Street, NW Washington, D.C. 20036 l

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Docketing & Service Section Office of tne Secretary U.S. . Nuclear Regulatory Commission Washington,~D.C. 205S5 Geary S. Mizuno, Esq.

Of fice of Executive Legal Director U.S. Nuclear. Regulatory Commission 7735 Ola Georgetown Road, 10 th .. f loor Washington,.D.C. ~20555 Thomas G. Dignan, Jr.

Ropes & Gray 22b Franklin Street Boston, MA 02110 ff ANTHONY .'K ISMAN r

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