ML20211K251
| ML20211K251 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/10/1986 |
| From: | Dignan T ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#486-1488 CLI-86-15, CPA, NUDOCS 8611170108 | |
| Download: ML20211K251 (28) | |
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' r DOCKETED USNRC Dated: November 10, 1986
~86 NOV 13 P3 :11 UNITED STATES OF AMERICA '
GTT; .. . ; '
NUCLEAR REGULATORY COMMISSION 00C",JT. $
before the g ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of )
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TEXAS UTILITIES ELECTRIC ) Docket No. 50-445-CPA COMPANY, et al. )
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(Comanche Peak Steam )
Electric Station, Unit 1) )
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ON APPEAL FROM A MEMORANDUM AND ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD ENTERED OCTOBER 30, 1986 BRIEF OF PERMITTEES
! Thomas G. Dignan, Jr.
, R. K. Gad III William S. Eggeling Kathryn A. Selleck Ropes & Gray 225 Franklin Street Boston, MA 02110 Counsel for Applicants i
8611170108 861110 PDR ADOCK 05000445 O PDR WO
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1 TABLE OF CONTENTS j
- Page TABLE OF CONTENTS .............................. i TABLE OF AUTHORITIES ........................... 11 STATEMENT.0F PRIOR PROCEEDINGS AND FACTS ....... 1 ARGUMENT ....................................... 9 A. To the Extent it is a Rewording of a Previously i Excluded Contention, the Contention Should Have Been Excluded Under l Governing Precedent ....................... 9 4
j B. The Contention Does Not Meet the Late-Filed Criteria of 10 CFR 2.714(a) ........................ 10
- 1. The first factor: Good Cause, if any, for
! failure to file on time ............. 10 t
i 2. The "second" and " fourth" j factors: Availability of i Other Means to Protect Petitioner's Interest: and .
j the Extent to Which Other i Parties Will Represent
). Petitioner's Interest ............... 12 l 3. The " Third" Factor:
i The Extent to Which the Petitioners Can Contribute to the Development 1 of a Sound Record ................... 13
- 4. The "Fifth" Factor:
The Extent to Which the i Petitioner's Participation Will Broaden the Issues
{ or Delay the Proceeding ............. 14 i Summary ................................... 14 1
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o Page C. No Sufficient Basis has Been Stated for the Contention ................. 14 D. The Fact That the Board is Concerned About the Possible Fate of Certain of Its Rulings on Appeal at a Later Date is no-Ground for Admitting a Contention .............................. 18 CONCLUSION ..................................... 21 l
TABLE OF AUTHORITIES CASES Page Ackerman v. United States, 340 U.S.
193, 198 (1950) ............................ 11 Cincinnati Gas & Electric (William H. Zimmer Nuclear Station),
LBP-80-14, 11 NRC 570 (1980) ............... 12 Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241 (1986) 13 Duke Power Co. (Perkins Nuclear Power Station, Units 1, 2 and 3),
ALAB-431, 6 NRC 460 (1977) ................. 12 Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-671, 15 NRC 508 (1982) ................ 13 Lubben v. Selective Service System, 453 F.2d 645, 650 (1st Cir. 1972) ................... 11 Martinez-McBean v. Virgin Islands, 462 F.2d 908, 912 (3d Cir. 1977) .................... 11 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2),
ALAB-384, 5 NRC 612 (1977) ................. 12 Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2),
ALAB-204, 16 NRC 1725 (1982) ............... 13 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
ALAB-804, 21 NRC 587 (1985) ............ 18, 19 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
CLI-84-86, 19 NRC 975 (1984) ............... 10
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a Page South Carolina Electric and Gas Co.
(Virgil C. Summer Nuclear Station, Unit 1)
ALAB-642, 13 NRC 881 (1981) ................ 13 A
Texas Utilities Electric Company l Comanche Peak Steam Electric Station, Unit 1), CLI-86-15', 24 NRC _
(September 19, 1986) ................... passim Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Unit 1),
. LBP , 24 NRC (October 30, 1986)
(" Board Order") ........................ passim l
Washington Public Power Supply System (WPPSS Nuclear Projects Nos. 1 and 2),
CLI-82-29, 16 NRC 1222 (1982) .............. 9 i
REGULATIONS 10 CFR 2.714(a) .......................... 1, 4, 10 10 CFR 50.57(a) ................................ 19 l
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FILED: N O V E f4 B E R 10, 1966 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of )
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TEXAS UTILITIES ELECTRIC I Docket No. 50-445-CPA COMPANY, et al. )
)
(Comanche Peak Steam )
Electric Station, Unit 1) )
)
)
ON APPEAL FROM A MEMORANDUM AND ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD ENTERED OCTOBER 30, 1986 BRIEF OF PERMITTEES Statement of' Prior Proceedings and Facts On May 2, 1986, the Atomic Safety and Licensing Board (the Board) admitted a single contention for litigation in the above-captioned proceeding. In the same order in which it admitted that contention, the Board also excluded a number of other contentions that had been profferred by the two petitioners for intervention herein (Consolidated Intervenors). From the ruling admitting the single contention, Permittees took an appeal pursuant to 10 CFR 2.714a. After hearing oral argument on this appeal, this Appeal Board, on July 2, 1986, certified to the Commission a question as to whether or not the single contention admitted was foreclosed as a matter of law by prior Commission precedent.
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On Septenber 19, 1986, the Co=aission issued n Merorsndum and Order which held, in essence, that the contention was foreclosed from litigation as a matter of law. Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Unit 1), CLI-86-15, 24 NRC (Sept. 19, 1986). This Appeal Board, on September 22, 1986, issued an order (unpublished) inviting the parties to comment on the Commission's response.
While their period for comment was still open, the Consolidated Intervenors filed, with the Board, a " Motion to Admit Amended Contentions or, in the Alternative, for Reconsideration of Certain Previously Denied Contentions." This pleading was accompanied by another document entitled " Consolidated Intervenors' Amended Contentions 1 and 2."8 As stated in this latter document, Amended Contention No. 2 read as follows:
The delay in construction of Unit I was caused by [Permittees'] intentional conduct, which had no valid purpose and was the result of corporate policies '
which have not been discarded or repudiated by (Permittees).
This was followed by a statement of basis. Id. at 2-5.
The Permittees and the Staff answered the Consolidated-Intervenors' filing in due course, and the Consolidated Intervenors filed a Reply Brief. Thereafter, on October 30, 1986, the Board issued the Memorandum and Order that is the subject of this appeal.
Texas Utili ties Electric Company (Comanche Peak Steam Electric 1 Nowhere in either the motion or the " amended contentions" is the reader advised as to which of the original thirteen contentions were being amended.
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Station, Unit 11, LBP-86 __, 24 NRC __ (Oct. 30, 1986) thereafter referred to as " Board Order").*
The Board began by reciting the procedural history of the case. In particular, the Board stated that it viewed CLI-86-15 as having " struck a new balance." Board Order at 2. The Board stated that the " rule" of CLI-15-86 was:
[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 delay for good cause. Board Order at 3 quoting CLI-86-15 at 9 (footnotes omitted).
The Board went an to state that "[t]he effect of Amended Contention 2 is to restate previous contentions in a manner that responds clearly to CLI-86-15." Board Order at 4. While it is not clear what contentions the Board deemed to have been restated, it appears from a footnote called out some five lines down from the above-quoted.
sentence that the reference is to original CASE Contentions 3, 4 and 7 and Gregory Contention 2. Board Order at 4, n.7.
Next, the Board went on to " find" that "these new i
a The slip-sheet opinion is captioned as involving both Units 1 and 2. The Licensing Board's jurisdiction is clearly limited to Unit 1, which is the only subject of Dkt 50-445-CPA i
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contentions"a were "not late because they are merely a more clearly worded version of portions of prior allegations previously made.
Id. at 5. The " finding" was premised on the theory that:
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. Id.
Next, the Board analyzed the contentions assuming that they were " late filed." See 10 CFR 2.714(a). The Board began by saying that "the issuance of CLI-86-15 provided good cause for late filing,"
id., going on to say "[w]e have already discussed that issue fully."4 The Board then noted that the "second" and " fourth" factors weighed in favor of the admission of the contention as is "almost always" the case. Board Order at 5-6. As to the " third" factor the Board stated:
8 The Board never really explains how the statement that these are "new" contentions squares with what later becomes the gravamen of the Board's ruling, viz.: that these are merely restatements of prior contentions. Nor does the Board ever explain why, if these contentions are mere restatements of prior contentions the Board did not simply adopt the alternative course offered to it by the Consolidated Intervenors of reconsidering its prior ruling on the original CASE Contentions 3-5 and 7 and Gregory 2.
See Cons. Int. Motion at 14.
- Id. One looks in vain in the Memorandum and Order for a
" full" discussion of the issue of whether good cause for the late filing had been shown. Indeed, the Board nowhere addresses the argument made in Part B hereof, infra, although this argument had been fully made in the Permittees' response to the consolidated Intervenors' Motion. Permittees' Response to Consolidated Intervenors' Motion to Admit Amended Contentions or, in the Alternative, for Reconsideration of Certain Previously Denied Contentions at 3-5 (Oct.10,1986).
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 contribute 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. Id. at 6.
Finally, the Board noted that the "fifth" factor weighed against admission of the contention "as it almost always does." Id. On the basis of the above-described discussion and analysis, the Board held that the overall balance weighed in favor of admitting the contentions.
The Board then turned to the question of " Specificity and Basis." It began by excluding the contention which Consolidated Intervenors had designated as "No. 1." Board Order at 6-7. The Board then turned to the contention designated "2," saying:
This contention relates to prior allegations that we already admitted as a contention. We interpret this contention in light of the prior contention and the specific bases provided by intervenors. Id. at 8.s The Board then goes on to state that the basis given by Consolidated Intervenors refers to a number of documents, see note 5, supra, and that these general references plus the Board's familiarity with the history of the Operating License case 5 To this statement was appended a footnote (n.9) which
allows the Board "to determine that there is adequate basis.' Board Order at 8. The Board then alludes to the existence of corroborated (by Permittees) Staff findings of " problems" in the quality control program and the quality of construction as well as design problems with pipe supports and cable tray hangers, and concludes its discussion of specificity and basis as follows:
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 i
represents intentional conduct of Applicants. 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 contentions have provided an adequate basis for inquiring further.
Id. at 9.
After a brief discussion in which it makes the point that there is a factual dispute between the Permittees and the Consolidated Intervenors as to whether Permittees present conduct constitutes a " repudiation" of any prior alleged misconduct, the Board next turned to a subject it entitled "1ssues in the Operating License Case." Board Order at 10. The apparent thrust of this itectnote 5 cut 1Ne:n states: " Consolidated Intervenors' bases are set forth in Appendix A." In Appendix A, the Pourd has set out verbatim
- the bases for the contention asserted by Consolidated Intervenors in their pleading. In the Loard Order it is stated that in their bases the Consolidated Intervenors
" refer to documents that are related to intervenors' contention . . . ." Board Order at 8. However, the only reference to documents in the Consolidated intervenors' Statement of Basis is an unspecified blanket reference to a number of documents listed in an appendix to a document filed in February of 1985 in the operating license proceeding.
i section of the Memorandum and Order is to articulate why the proceeding contemplated by the Board, assuming its admission of the contention was correct, is different from the ongoing operating license proceeding in which the Board is already sitting. First, the Boarc notes that the operating license proceeding "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." Id. The Board then went on to describe an apparent need to have the contemplated proceeding because of the possibility that the Permittees may be sustained at some future date on appeal in a difference of opinion which they are having with the Board in the operating license proceeding:
Furthermore, the Board's view about the issues properly in the operating license case is not shared by the [Permittees)
It is [Permittees) view in the operating license case that it is not proper, under the admitted contention, to consider the extent to which management practices have resulted in quality assurance / quality control breakdowns.
The basis for (Permittees') argument is their belief that they can correct all plant deficiencies without assessing management blame and that correction of the physical problems is all they need to counter the allegations of Contention 5.
Because that is [Permittees] view, which could be sustained on appeal, the procedural context for raising these management issues is substantially different in the two cases. Board Order at 10.
The Board concluded its memorandum by rejecting a jurisdictional argument that had been raised by Permittees, and entered an order admitting Consolidated Intervenors Amended
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Contention No. 2 (hereinafter referred to as "the contention").
This appeal followed.
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ARGUMENT A. To the Extent it is a Rewording of a Previously Excluded Contention, the Contention Should Have Been 4
Excluded Under Governing Precedent As set forth in the Statement of Prior Proceedings and Facts above, the Board seems, at l ea .< t in parts of the Board Order, to have taken the position that the contention is simply a rewording of previously filed and enumerated contentions. All of the contentions so enumerated have one thing in common. They were excluded by the Licensing Board in its prior prehearing conference order. Special Prehearing Conference Memorandum and Order (May 2, 1986).* The Order excluded the contentions based on the Permittees' analysis in their Answer to the original CASE and Gregory contentions.' A review of that Permittecs' Answer will reveal that the grounds therein argued for exclusion of CASE 3-5 and 7 and Gregory 2 were that the previous decision of the Commission in Washington Public Power Supply System (WPPSS Nuclear Project Nos. I and 2), CLI-82-29, 16 NRC 1221, 1224-25 (1982) precluded their.admtssion. The Board so ruled.
- This is the Order involved in the appeal already pending before this Appeal Board which gave rise to the certified quention answered in CLI-86-15.
7 In the Special Prehearing Conference Order, the Board
' stated: "Because of our interpretation of the law concerning contentions that are admissible in construction permit extension proceedings, we will not admit CASE's contentions 1-5 and 7-9. Similarly, we will not admit Gregory Contentions 2-4." To this statement was appended a Footnote 8, which read in its entirety: "See, passim, Permittee's Answer, April 17, 1986." Special Prehearing Conference Memorandum and Order at 11 n.8 (May 2,1986).
In the Order which is the subject of this appeal, however, the Board asserts that a " rewording" -- not a new contention, but a rewording of the previously excluded above-referenced contentions --
is now admissible. This result can only be premised on a sub silentio ruling by the Board that CLI-86-15 is to be read as, in some fashion, denigrating from the rules laid down in CLI-82-29.
However, no such reading of CLI-86-15 is possible. Indeed, while one could possibly argue that CLI-86-15 somewhat circumscribed the prior decision of the Commission in Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-84-6, 19 NRC 975, 978 (1984), it is clear that CLI-82-29 was left untouched. This being the case, the Board was just plain wrong in saying that the contention was admiusible if, as the Board said, it is a mere
- rewording of the previously filed and rejected contentions. This is extremely important because if the contention cannot be assumed to be merely a rewording of a previously filed contention (or contentions),
, then the contention must be a true "new contention", Board Order at 5, (see supra n.3). If the contention is indeed a "new" contention then it must pass muster under the " late-filed" criteria of 10 CFR 2.714(a).
As seen below, the contention cannot do this.
B. The Contention Does Not Meet the Late-Filed Criteria of 10 CFR 2.714(a)
- 1. The first factor: Good Cause, if any, for failure to file on time The Board held that the issuance of CLI-86-15 in and of itself provided good cause for late filing, noting that it had
" discussed that issue fully." Board order at 5. Although it stated that it did so, the Board hardly supplied a " full" discussion of the issue. Indeed, it supplied none. Apparently, the Board agreed with ,
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the view expressed by the Consolidated Intervenors in their Motion (at p. 11) to the effect that CLI-86-15 was a " modification of the law" and as such provided the necessary " good cause."
However, the view expressed by the Consolidated Intervenors is erroneous. CLI-86-15 was not a " modification" of the law. It was rather a statement of the very legal principle which the Permittees had urged upon the Board and this Appeal Board in the context of the earlier admitted contention. At most, CLI-86-15 was a decision which decided a legal question of first impression. Thus, the issue is whether good cause for failure to file on time can be predicated on the issuance of an adjudicatory decision which decides a question under existing regulations differently than the moving party thought that it would be decided. The answer, we submit, must be no!* All of the cases in which changed circumstances in and of themselves have
- There is no other limit upon the analysis employed by the Licensing Board. Certain questions may perhaps be so clearly governed by precedent or the unambiguous language of the statutes and regulations, that this Appeal Board or the Commission will dismiss them summarily with only a citation to the controlling authorities. But once it has been determined that any appealed
" issue" is sufficiently disputed to warrant treatment in an opinion, the pronouncements resolving that dispute -- however predictable to some of the participants (and to neutral observers as well) -- form the basis for the argument that the opinion
" struck a new balance" warranting relief from the prohibition i
against late filed contentions. Contrary to the Board's assumption, such interpretations of existing law cannot provide good cause for such relief. Cf. Martinez-McBean v. VJ_rgin Islands, 562 F.2d 908, 912 (3d Cir.1977;(legal error insufficient to constitute ground of reconsideration under i Fed. R. Civ. P. 60); accord Ackerman v. United States, 340 U.S.193,198 (1950); Lubben v. Selective Service System, 453 F.2d 645, 650 (1st Cir.1972).
supplied the " good cause" have involved the discovery of recently disclosed facts as opposed to legal interpretations. We are aware of at least one Licensing Board decision holding that a far-reaching change in the Regulations (as opposed to new or different interpretations of them) may be the basis of a " good cause" finding.
See Cincinnati Gas & Electric Co. ( William 11. Zimmer Nuclear Station),
LBP-80-14, 11 NRC 570, 572-74 (1980). But no case we are aware of goes so far as to say that " good cause for failure to file on time" can be predicated on a decision interpreting existing law and regulations. To hold otherwise would be to invite administrative chaos and have the potential to flood any ongoing proceeding with late-filed contentions every time the Commission or an Appeal Board speaks to a legal question.
Thus, the " good cause" alleged by the Consolidated Intervenors and adopted by the Board is insufficient. Accordingly, Consolidated Intervenors' burden is heavier with respect to the other factors. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 615 (1977); Duke Power Co.
(Perkins Nuclear Power Station, Units 1, 2 and 3), ALAB-431, 6 NRC 460, 462 (1977).
- 2. The "second" and " fourth" factors:
Availability of Other Means to Protect Petitioner's Interest: and the Extent to Which Other Parties Will Represent Petitioner's Interest The "second" and " fourth" factors, as noted by the Board almost always weigh in favor of the party seeking to have the late-filed contention admitted. flowe ve r , they are to be accorded less
ueight than the other three factors. Commonwealth Edison Company (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 245 (1986); South Carolina Electric and Gas Co. (V;rgil C.
Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981).
- 3. The " Third" Factor: The Extent to khich the Petitioners Can Contribute to the Development of a Sound Record "When a petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses and summarize their proposed testimony." Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-204, 16 NRC 1725, 1730 (1982), quoted with approval in CLI-86-6, supra, at 246. The Consolidated Intervenors made no attempt to comply with this directive. Nevertheless, the Board without any attempt at justification for such a course held that this factor weighed in favor of the Consolidated Intervenors. Indeed, what justification for the holding that was given relied heavily on the skills of counsel and the Board's view of the efficacy of the participation of one of the Consolidated Intervenors in the operating license proceeding for Comanche Peak. This approach is at complete odds with the decisions in Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC 508, 513 n.14 (1982) and CLI-86-8, supra at 247. In that latter-cited Commission decision, the Commission made patently clear that where, as here, the moving party had not supplied specifics as to witnesses and topics to be pursued and relied on skills of counsel as demonstrated in other NRC proceedings, the holding on the " third" factor must be
that it weighs against the admission of the contention.
- 4. The "Fifth" Factor: The Extent to Which the Petitioner's Participation Will Broaden the Issues or Delay the Proceeding As the Board acknowledged, this factor weighs against the admission of the contention.
Summary The two least important factors weigh, as usual, in favor of admitting the contention. The remaining, more important, factors weigh against. The Board erred in ruling to the contrary.
C. No Sufficient Basis has Been Stated for the Contention As may be observed from our other filings regarding the parent appeal before this panel, CLI-86-15 did not open the door for an attempt to amend contentions such as CASE has attempted to interject in this proceeding. To the contrary, to the extent the Commission's opinion provided guidance regarding future construction permit extension proceedings, it also expressly concluded that Comanche Peak did not warrant such scrutiny inasmuch as, inter alia, i Applicants demonstrated commitment to identification and correction of any past deficiencies was sufficient to make any such assertion frivolous. We submit that this means that as a matter of law one cannot in this case state a basis for a contention for the sort of intentional, unrepudiated dilatory conduct such as was hypothesized by the Commission.
l The Licensing Board clearly overlooked that reading on the i
Commission's decision. This misinterpretation alone thus requires reversal of the Order appealed from. Even if one accepts arguendo the Licensing Board's extremely liberal interpretation of Commission intent, moreover, its application of the principle it derives from CLI-86-15 was clearly erroneous.
Even under the Board's reading of CLI-86-15, it is necessary that it be established that there is a basis for two separate concepts, viz.: (1) that there was a policy to speed construction by violating regulatory requirements and (2) that the policy has not been repudiated. To supply the basis for the first element (i.e. the existence of a policy to violate regulations to speed construction) the Board relied on the existence of deficiencies in design, construction, and the quality assurance program. Board Order at 8. Here the Board erred.
The statement of basis advanced and accepted by the Licensing Board is patently deficient even under the broadest possible interpretation of the Commission's pronouncements in CLI-86-15 and their effect upon existing law. Careful perusal of the statment of basis relied upon reveals first the following primary elements:
- 1) The allegation that Applicants QA/QC program was not reformed despite " consistent criticism;"
- 2) Allegations that Applicants improperly designed their plant;
- 3) Observations that the CPSES plant is now undergoing reinspections, redisigns and reconstructions in the course of the licensing process; and,
- 4) Allegations that Applicants continue to violate CASE's interpretations of the pertinent regulations.
It will be quickly observed that these allegations are not unheard of in the course of licensing litigation and could, with varying degrees of accuracy, be made against virtually any reactor programs coming before ASLB panels in recent experience. It follows, for this reason as well as others, that common sense dictates this cannot be enough to afford a basis for litigating every construction permit extension request. The Commission, of course, clearly reached the same conclusion in its rejection of CASE's arguments in CLI-86-15, and we do not understand that principal to be contested any longer.
The CASE statement of basis then goes on to insert what it believed, and the Licensing Board accepted, as the additional ingredient necessary to satisfy the Commission's allegedly new standard: a sprinkling of the words " deliberate" and " deliberately" about its otherwise clearly insufficient statement of basis hinged together with the allegation that Applicants have never acknowledged that this or any other corporate policy was the cause of the delay or that anything in the control of corporate management caused the delay, and thus Applicants have never discarded or repudiated the policies that caused the delay.
It is thus this sentence which affords the only possible foundation for the Licensing Board's finding that CASE had advanced an adequate basis to continue to litigate the construction permit extension under its reading CLI-86-15. That foundation is, however, unequivocally lacking.
In the first place, it is impossible to discern what is i
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meant by the quoted words. In the real world, for example, all errors or omissions in the process of designing and constructing a power plant may be said to be the result of some " corporate policy"
-- in the sense that corporate management is always vicariously responsible for actions taken, or not taken, under its aegis.
Similarly, it advances the ball not at all to urge that corporate management has " deliberately refused" to do something, since unless there was clearly and unambiguously the duty to do that which was allegedly refused, there cannot have been a " deliberate corporate policy to construct in violation (of Regulations]" such as was hypothesized by the Commission.
Even more importantly, however, is the unavoidable fact that no basis can be perceived
- for CASE's use of terms such as
" deliberate refusal" and " ignored." It is solely on the basis of such phrases, elusive as they are, that the Licensing Board concluded an adequate showing had been made that this proceeding in fact contained
- In Appendix A to its " Memorandum (Errors in Yesterday's Order)" served November 3,1986, the Board: (1) permitted Consolidated Intervenors to incorporate by reference a list of documents filed in the operating license proceeding approximately twenty-one months ago; (2) referred to such listing as " evidence that supports . . . bases," as opposed l to the basis itself; (3) opined that the " disclosure of such evidence that supports basis is not a condition for admission of a contention; and (4) nevertheless, stated that such listing "contains references to documents -
l supporting Consolidated Intervenors' bases." Appendix A at n.1. One cannot find in Appendix A, in Consolidated Intervenors submissions, or in the " referenced" documents, any evidence supporting the proposition that Applicants had an established policy to violate Commission regulations.
Notwithstanding the complete lack of evidence, the Licensing Board would require Applicants to litigate whether their multi-million reinspection and correction effort constitutes sufficient " repudiation" of something which has never been shown to exist. This ruling is Kafkaesque in the extreme.
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the archetypical set of facts which the Commission mused might be presented by some construction permit extension request. If these sorts of conclusory pronouncements are going to require a full adjudicatory hearing with the concomitant expenditure of countless hours and dollars, surely Applicants are entitled to expect that a speci fic and particularized foundation for the inserted verbs and adverbs has been identified by the putative challengers and carefully scrutinized by the Licensing Board. Its rights cannot be adequately protected with vague references to uncatalogued documents and experience. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-804, 21 NRC 587, 592 and n.6 (1985).
D. The Fact That the Board is Concerned About the Possible Fate of Certain of Its Rulings on Appeal at a Later Date is no Ground for Admitting a Contention In Part VI of the Board Order, the Board goes out of its way to justify its decision by stating, in effect, that it is necessary to admit this contention and have a proceeding in this docket because otherwise the issue might never be litigated if the Permittees prevail in their view that the issue of management's responsibility vel non is not involved in the operating license Case.
There is no doubt that the Board is correct in its assessment that the Permittees are of the view that there is no issue of management competence in the operating license case as it now stands. This view is based on the unremarkable premise that an
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operating license adjudicatory proceeding is confined to consideration of the contentions admitted and nothing else. The only contention left in the operating license hearing for litigation is the so-called Contention 5. That contention reads in its entirety as follows:
The Applicants' failure to adhere to the quality assurance / quality control provisions required by the construction permits for Comanche Peak, Units 1 and 2, and the requirements of Appendix B of 10 C.F.R. Part 50, and the construction practices employed, specifically in regard to concrete work, mortar blocks, steel, fracture toughness testing, expansion joints, placement of the reactor vessel for Unit 2, welding, inspection and testing, materials used, craft labor qualifications and working conditions (as they may affect QA/QC) and training and organization of QA/QC personnel, have raised substantial questions as to the adequacy of the construction of the_ facility. As a result, the Commission cannot make the findings required by 10 C.F.R. 50.57(a) necessary for issuance of an operating license for Comanche Peak. (Emphasis added.)
The only issue raised by this contention is the adequacy of construction. There is no issue of management competence and character within the ambit of Contention 5. Perhaps CASE and the Board are desirous of trying such an issue, but they, like the Permittees, are bound by the literal terms of the contentions admitted. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2) ALAB-819, 22 NRC 681, 709 (1985); Jd., ALAB-836, 23 NRC 479, 505 (1996). Unless and until a late-filed contention is properly admitted under the rules, or a new one is raised sua sponte l
nn by the Board under the proper procedures for that course of action, management competence and character are simply not in the OL case.
As is clear from part VI of the Board's Memorandum and Order, however, the Board is using as justification for its admission of the contention the fact that this may afford a way of trying out an issue it is apparently desirous seeing tried. But this is no ground for admitting a contention! In the first place, if the " management issue" to which the Licensing Board nakes reference is a not a proper issue in the OL case (the working hypothesis for the Licensing Board's advancement of this justification), it surely cannot not for tha t reason become properly inserted into this docket. More importantly, the language of the Board's Memorandum and Order part VI underscores the undeniable fact that the contention could have been made in the operating license proceeding. This being the case the law is clear. Contentions which could have been raised in an operating license proceeding are not admissible in a construction permit extension proceeding. CLI-82-29, supra, at 1227.
CONCLUSION The order admitting the contention should be vacated. An order should enter in the pending appellate proceeding already before this Appeal Board reversing the Special Prehearing Conference Order, and this proceeding should be 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 2500 Dallas, TX 75201 (214) 979-3000 Roy P. Lessy, Jr.
WRIGHT & TALISMAN, P.C.
1050 Seventeenth Street, N.W.
Washington, DC 20036-5566 (202) 872-5000 Thomas G. Dignan, Jr.
R. K. Gad III William S. Eggeling Kathryn A. Selleck ROPES & GRAY 225 Franklin Street Boston, MA 02110 (617) 423-6100 A .
l
, Jr.
l
Datyrm nyt CERTIFICATE OF SERVICE
'86 NOV 13 P3 :11 I, Thomas G. Dignan, Jr., one of the attorneys for the ,
7 Applicants I made service herein, hereby of the certify within that on document byNovember 10,0Q mailing copiek "86 4
- .,m!
thereof, postage prepaid, to:
Peter B. Bloch, Esquire Dr. W. Reed Johnson
- Chairman Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Walter H. Jordan Anthony Roisman, Esquire Administrative Judge Executive Director 881 W. Outer Drive Trial Lawyers for Oak Ridge, Tennessee 37830 Public Justice 2000 P Street, N.W., Suite 611 Washington, D.C. 20036 Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 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 7735 Old Georgetown Road Bethesda, MD 20814 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 Austin, Texas 78711 Commission Washington, D.C. 20555 t'
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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 Midwest Office Regional Administrator, 3424 N. Marcos Lane Region IV Appleton, WI 54911 U.S. Nuclear Regulatory Commission 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
- Oak Ridge, Tennessee 37830 Commission Maryland National Bank Bldg.
Room 10105 7735 Old Georgetown Road Bethesda, Maryland 20814 Nancy Williams Mr. James E. Cummins Cygna Energy Services, Inc. Resident Inspector 101 California Street Comanche Peak S.E.S.
Suite 1000 c/o U.S. Nuclear Regulatory San Francisco, California 94111 Commission P.O. Box 38 Glen Rose, Texas 76043 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 Commissiori Washington, D.C. 20555 E F
'~ .4W~ > h Thomas G'.,&ignan, Jr.
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