ML20214G553
| ML20214G553 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 11/19/1986 |
| From: | Dignan T ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1659 CPA, NUDOCS 8611260133 | |
| Download: ML20214G553 (8) | |
Text
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DOCKETED USNPC FILED:
November 19, 1986
'86 NOV 25 All:01 UNITED STATES OF AMERICA f0C
,.[
NUCLEAR REGULATORY COMMISSION C
before the e
ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
TEXAS UTILITIES ELECTRIC
)
Docket No. 50-445-CPA COMPANY, et al.
)
)
(Comanche Peak Steam
)
Electric Station,
)
Unit-1 )
)
)
)
PERMITTEES' RESPONSE TO CONSOLIDATED INTERVENORS' MOTION FOR RECONSIDERATION on September 30, 1986, the Consolidated Intervenors filed " amended contentions" with this Board.
Amended Contention No. 1 was "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."
B611260133 861119' DR ADOCK 05000445 PDR N
On October 10, 1986, the Permittees filed a response to the amended contention.1 Therein, the Permittees, inter alia, argued:
"To begin with, a contention phrased in terms of:
" applicants have not alleged or established" raises no litigable issue.
NRC practice does not encompass any concept in the nature of a common
~
law demurrer.
One does not raise a litigable issue by saying an applicant has failed to allege something.
Indeed if that were the case, the filing of an amendment setting forth the desired allegations would result in immediate summary disposition of the contention; a result Consolidated Intervenors would hardly accept."
Permittees Response at 18.
In a Memorandum and Order issued October 30, 1986,2 this Board sustained the above-quoted position of the Permittees:
"We agree with Applicants that Amended Contention 1 is not admissible.
It differs from Contention 2 largely because it contains procedural assumptions that are more properly the subject of motions than of contentions.
i I:
1 Permittees' Response to Consolidated Intervenors' Mt. ion to Admit Amended Contentions or, in the Alternative, for Reconsideration of Certain Previously Denied Contentions (Oct. 10, 1986) (hereafter "Permittees' Response").
2 Memorandum and Order (Motion to Admit New Contentions or for Reconsideration), Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Unit 1),
f LBP 24 NRC (Oct. 30, 1986) (hereafter referred to and cited as"ASLB Memo").
l
. l
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."
ASLB Memo at 6-7.
On November 4, 1986, the Censolidated Intervenors filed a Motion for Reconsideration of the foregoing decision of this Board (the " Motion").
For the reasons set forth below, the-Permittees believe the Mction should be denied.
The Motion is, on even a cursory reading, notable for its lack of citations to any authority whatsoever.
No rer21ation is cited; no adjudicatory decision of the NRC or its Boards is cited.
This is not surprising.
The Motion argues for a novel theory that applications for NRC licenses or permits, or amendments of licenses or permits, are to be in the form of Common Law Pleadings, i.e.,
they must articulate a factual basis for a legal theory for the allowance of the license or amendment sought... =....
This is not the law.
The contents for applications for construction permits or amendments thereto are governed by the regulations.
E.g.
10 C.F.R.
$$ 50.33, 50.34(a), 50.34a, l
50.90.
Nowhere therein does one find a requirement that the applicant state and bind itself to one or another legal or evidentiary theory.
The novelty of the Consolidated Intervenors' theory is best revealed by their first articulation of reasons why they want the contention in the proceeding:
" Consolidated Intervenors are entitled to have this contention admitted into this proceeding so that it can seek a ruling on the contention and foreclose TUEC from presenting evidence that is intended to prove that its delay in construction was for a good cause.
Before TUEC can make such a claim and offer evidence in support of that claim, it must do what it has steadfastly refused to do:
it must give its version of why construction at Unit 1 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."
Motion at 2.
In short, what Consolidated Intervenors want to have this Board do is adopt some sort of procedure which turns the application into a complaint; a first round of contentions into a demurrer of some kind which, if l
l sustained, gives rise to an amended complaint followed by another round of contentions which apparently will join issue and thus must be viewed as being in the nature of an.
answer.
Just how far this novel theory goes is illustrated further by the following:
"The need to articulate contentions and bases cannot, within the 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 contentions and bases in its application and there is no-need to require more."
Motion at 4.
Nowhere in NRC jurisprudence or the Rules of Practice can f
one find any basis for saying that an applicant has any duty to state contentions.
An applicant makes a request for a permit or an amendment and gives certain technical and other factual information in support of that request.
An intervenor has a right to file a factually based contention that the request be denied for some reason.
Finally, we note that Consolidated Intervenors themselves state that the most they would be entitled to, even on their own novel theory, is for this Board to
" qualifiedly admit" the contention at issue, Motion at 4, or to allow the " conditional acceptance of the contentions" Motion at 5.
It is settled that Licensing Boards are not permitted to conditionally admit contentions with a view to holding further proceedings to ascertain whether the admission was or was not correct.
Duke Power Co. (Catawba i
Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, e
466-67 (1982), rev'd in part and aff'd in part, CLI-83-19, 17 NRC 1041 (1983); Philadelphia Electric Co. (Limerick _
Generating Station, Units 1 and 2), ALAB-806, 21 NRC 1183, 1188 n. 17 (1985).
This Motion for Reconsideration raises no new matter not previously considered by the Board and it should be rejected.
Respectfully submitted, Nicholas S.
Reynolds William A. Horin BISHOP, LIBERMW, 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.
Washington, DC 20036-5566 (202) 872-5000 Thomas G.
Dignan, Jr.
R.
K. Gad III William S.
Eggeling Kathryn A.
Selleck ROPES & CRAY 225 Franklin Street Boston, MA 02110 (617) 423-6100
~s By a m",-
.,,-/-
Thoitas 'G. D@n, Jr..- -
. COLNEIt F TiNW:
CERTIFICATE OF SERVICE I, Thomas G. Dignan, one of the attorneys for thekpkiNng :01 herein, hereby certify that on November 19, 1986, I mude servica,of DOCKLitNk. l nysu the within "Permittees' Response to Consolidated Interven$$k'M Motion for Reconsideration", by mailing copies thereof, postage prepaid, to:
Peter B. Bloch, Esquire Mr. James E.
Cummins Chairman Resident Inspector Administrative Judge Comanche Peak S.E.S.
Atomic Safety and Licensing c/o U.S. Nuclear Regulatory Board Commission U.S.
Nuclear Regulatory P.O.
Box 38 Commission Glen Rose, Texas 76043 Washington, D.C.
20555 Dr. Walter H. Jordan Nancy Williams Administrative Judge Cygna Energy Services, Inc.
881 W.
Outer Drive 101 California Street, Suite 1000 Oak Ridge, Tennessee 37830 San Francisco, California 94111 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 Room 10117 Bethesda, Maryland 20814 d
t-
- - - - - + -,,
-,m-
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 Commission Austin, Texas 78711 Washington, D.C.
20555 Anthony Roisman, Esquire Joseph Gallo, Esquire Executive Director Isham, Lincoln & Beale Trial Lawyers for Public Justice 1120 Connecticut Avenue, N.W.
2000 P Street, N.W.,
Suite 611 Suite 840 Washington, D.C.
20036 Washington, D.C.
20036 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 Commission Oak Ridge, Tennessee 37830 Maryland National Bank Bldg.
Room 10105 7735 Old Georgetown Road Bethesda, Maryland 20814 M
A
_-='
Tliomas G' Digrpfth Jr.
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