ML20214G646

Response to Consolidated Intervenors 861031 Motion to Dismiss Pending Appeal as Moot &/Or for Lack of Jurisdiction & to Immediately Dissolve Order Staying Discovery

ML20214G646
Person / Time
Site:	Comanche Peak
Issue date:	11/20/1986
From:	Bachmann R NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#486-1645 CPA, NUDOCS 8611260160
Download: ML20214G646 (13)

Text

=.

'll k'5 DOLKETED

, UiNRC C UNITED STATES OF AP.! ERICA '86 NOV 25 P12:17 NUCLEAR PEGULATORY COMMISSION BEFORE THE ATOMIC SAPETY AND LICENSING APPEAL BOAkIhrji ,

In the Matter of ) *

)

TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-CPA COMPANY, et _al.

)

)

(Comanche Peak Steam Electric )

Station, Unit 1) )

NRC STAFF RESPONSE TO CONSOLIDATED INTERVENORS' MOTION TO DISP 11SS PENDING APPEAL AS MOOT AND/OR FOR LACK OF JURISDICTION AND TO IffMEDIATELY DISSOLVE ORDER STAYING DISCOVERY i

i I

L l .

Richard G. Bachmann Counsel for NRC Staff November 20, 1986 l "

8611260160 861120 PDR l C ADOCX 05000445 l PDR

~

1307

COLKETEC

, u%RC UNITED STATES OF AMERICA '86 NOV 25 P12:17.

NUCLEAR PEGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD h0C bil dN b '

iiR.MH In the Matter of )

)

TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-CPA COMPANY, et al. )

)

(Comanche Peak Steam Electric )

4- Station, Unit 1) )

NRC STAFF RESPONSE TO CONSOLIDATED INTERVENORS' MOTION TO DISP 11SS PENDING APPEAL AS MOOT AND/OR FOR LACK OF JURISDICTION AND TO I?tMEDIATELY DISSOLVE ORDER STAYING DISCOVERY Richard G. Bachmann Counsel for NRC Staff November 20, 1986 j .

d b

y - --------.,---.._,.-.--_--%,--,,-%.., , . , . _ . _ , , _ . _ , _ , - . . . - - , , , . . , , , . ,,- , _ - _ _ . - , , _ , , , - _

I l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-CPA COMPANY, et _al. _

)

)

(Comanche Peak Steam Electric )

Station, Unit 1) )

NRC STAFF RESPONSE TO CONSOLIDATED INTERVENORS' MOmN TO DISMISS PENDING APPEAL AS MOOT AND/OR FOR LACK OF JURISDICTION AND TO IMMEDIATELY DISSOLVE ORDER STAYING DISCOVERY I. INTRODUCTION On October 31, 1986, the Consolidated Intervenors filed their Motion to Dismiss Pending Appeal as Moot and/or for Lack of Jurisdiction and to Immediately Dissolve Order Staying Discovery (" Motion") . For the reasons set forth below, the NRC Staff (" Staff") supports in part and opposes in part Consolidated Intervenors' Motion.

II. BACKGROUND On May 2, 1986, the Licensing Board issued a Special Prehearing Conference Order admitting CASE and Meddie Gregory together as intervenors (" Consolidated Intervenors") in this proceeding, and admitting a single contention which was drawn from CASE Contention 6 and Meddie Gregory Contention 1.

Both the Staff and Applicants filed prompt appeals from the Licensing Board's Order pursaant to 10 C.F.R.

After the filing of briefs by all parties II and oral 5 2.714'a(c).

. argument, the Appeal Board certified the following question to the )

Commission: ,

. 1 Is the admitted CASE /Meddie Gregory contention

. . . foreclosed as a matter of law by Washington Public Power Supply System (WPPSS Nuclear Power Project Nos. I a 2), CLI-82-29, 16 NRC 1221, 1230-31 (1982)?

On September 19, 1986, the Commission issued a Memorandum and a Order, CL1-86-15, in which the Commission provided its answer and additional guidance regarding the question certified to it by the Appeal Board. All parties have filed briefs providing comments on the Commission's decision 2/ with the Appeal Board, pursuant to the opportunity provided by the Appeal Board in a September 22, 1986 Order.

Before the Appeal Board ruled on the Staff's and Applicants' appeals , Consolidated Intervenors filed a Motion to Admit Amended Contentions or, in the Alternative, for Reconsideration of Certain Previously Denied Contentions (September 30,1986) (" Motion to Amend").

In that motion, the Consolidated Intervenors asked that they be permitted

-1/ NRC Staff's Notice of Appeal From Atomic Safety and Licensing Board Memorandum and Order Concerning Parties and Contentiont and Supporting Brief (May 12, 1986); Brief of Applicants-Appellants on Appeal from the Special Prehearing Confere.nce Order (ASLBP No. 86-528-02-CPA) of the Atomic Safety and Licensing Board Issued May 2, 1986 (May 2, 1986); CASE and Meddie Gregory's Opposition to Appeal of TURC and NRC Staff (Play 27, 1986).

-2/ NRC Staff Comments on CLI-86-15 (September 30, 1986); Permittees' Memorandum in Response to the Appeal Board Order of September 22, 1986 (September 26, 1986); Consoudated Intervenors' Comments on CLI-86-15 (October 7,1986).

to amend,the one contention that had been admitted by the Licensing 4

Board. Attached to the Consolidated Intervenors' motion were " Amended Contentions" 1 and 2. On October 9,1986, the Appeal Board issued a Memorandum which stated that it would await the Licensing Board's action on the Consolidated Intervenors' Motion to Amend, since a decision by the

< Licensing Boa d to admit the amended contentions or grant the alternative relief sought by the Consolidated Intervenors may make the appeals

" academic". Subsequently, the Staff and the Applicants filed briefs opposing late amendment of the existing contention. 3_/

On October 30, 1986, the Licensing Board issued a Memorandum and Order (Motion to Admit New Contentions or for Reconsideration), which

, granted in part Consolidated Intervenors' Motion to amend and admitted Amended Contention 2. The next day, the Licensing Board issued an

! additional order correcting and supplementing the October 30,1986 Order by, inter alia, recounting the bases proffered by the Consolidated

) Intervenors in support of Amended Contention 2 in an Appendix A. The Staff and Applicants have taken appeals of the Licensing Board's Orders of October 30 and 31, 1986 U (referred to collectively as the " October

( 30,1986 Order") .

l l

l 3/

NRC Staff Response in Opposition to CASE's Motion for Admission of Amended Contention (n c tober IE, 1986); Permittees' Response to l Consolidated Intervenors' Motion to Admit Amended Contention or, in i

the Alternative, for Reconsideration of Cer'.ain Previously Denied Contentions (October 10, 1986).

4/ NRC Staff Brief. In Support of Appeal from Atomic Safety and l

Licensing Board Memorandum and Order Admitting Amended Conten-tions (November 13, 1986); Brief of Permittees on Appeal from a (FOOTNOTE CONTINUED ON NEXT PAGE)

Consolidated Intervenors filed the instant Motion on October 31, 1986.

III. DISCUSSION A. Dismissal of Appeal l

While the Consolidated Intervenors do not specifically refer to the Appeal Board's October 9,1986 Memorandum, it is evident that they are responding to the Appeal Board's observation that the pending appeal of the Licensing Board's May 2,1986 Order might become " academic" should the Licensing Board admit the amended contentions. The Staff does not disagree with Consolidated Intervenors' ultimate conclusion that it is not necessary for the Appeal Board to reach a decision on the original contention. However, the Staff strongly opposes the Consolidated Intervenors' interpretation of the Licensing Board's October 30, 1986 I Order which would suggest that any part of the original contention remains before the Licensing Board. In the Staff's view, Amended Contention 2, as accepted by the Licensing Board in the October 30, 1986

, Order, totally supplanto the single contention admitted in the May 2,1986 Order. Since the earlier contention has been completely replaced, and (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)

Memorandum and Order of the Atomic Safety and Licensing Board entered October 30,1986 (November 10, 1986).

I The admission of Amended Contention 2 by the Licensing Board does not, in the circumstances, make the subicct appeal " academic" in the

~

sense seemingly intended by the Appeal Board in its October 9,1986 Memorandum in that the admission of that contention is itself the subject of an appeal.

]

since notices of appeal have been filed regarding Amended Contention 2, the original appeal, which encompassed the totality of the previously admitted contention, is Indeed academic.

The Consolidated Intervenors assert that a part of their first contention continues to be before the Licensing Board. They refer to the

" portion of the contention which is the subject of the [first] appeal,"

(Motion at 1), but assert that the Licensing Board admitted another portion of the contention which was not appealed, (id. at n.1), in particular, that portion which contended that Applicants failed to allege a non-intentional oc valid cause for the delay in completion of Unit 1 of CPSES. -I According to Consolidated Intervenors, since this issue was I not dealt with in the appeal briefs filed by Applicants and the Staff, the Appeal Board could not completely dismiss the single contention, and therefore could not grant the relief requested pursuant to 10 C.F.R. 4 5 2.714a(c). Id. at 1. Presumably, this " portion" or " contention" therefore remains before - the Licensing Board , notwithstanding the admission of Amended Contention 2. Such a result is insupportable.

Were Consolidated Intervenors correct in their assertion that there is a severable part of their original contention, and that the failure to specifically address that part in the appeal briefs f!!ed by the Staff and Applicants precluded the Appea,1 Board from having jurisdiction over the entire contention, logic dictates that the pending appellate proceeding was 5/ See, CASE and Meddie Gregory's Opposition to Appeal of TUEC and NRC Staff (May 27, 1986) at 2.

l

)

~

1 impermissible ab initio. 6,/

Had not the Appeal Board at least tacitly agreed that only a single contention was involved, the appeal presumably would have been summarily dismissed as interlocutory and could not have proceeded under 10 C.F.R. 5 2.714a(c); O the Appeal Board would not have certified its question to the Commission prior to deciding the appeal.

Apart from the foregoing considerations, another telling argument for rejecting Consolidated Intervenors' position is found in their recent filings before the Licensirig Board requesting the admission of amended contentions. Significantly, their pleadings indicate an intention that their amended contentions completely replace the previously admitted contention. In their September 30, 1986 Motion to Amend, Consolidated Intervenors " request the Board's permission to amend the contention that was admitted into this proceeding by the Board's order of May 2, 1986

. . . ." Id. at 1. They further state that "[t]he purpose of this motion is to modify our contention in light of the Commission's Order of September 19, 1986." Id. at 2. Consolidated Intervenors also note that, in their view , the Commission's Order allowed for the possibility of i amending the contention, and thus they filed their " amended version."

Id. at 11. Moreover, they advocate the idea that the amended conten-l tio:.4 will allow for the development of a better record "than the I

-8/ The notion advanced here again by Consolidated Intervenors, namely, that the previously admitted contention was composed of two severable portions, the first of which was not challenged on appeal,

, was discussed to some extent with counsel for the Applicants and

Consolidated Intervenors at the oral argument held on June 18, 1986.

See, eg, Tr. at 5-11 and 41 et seq.

-7/ See, et al. (Pilgrim Nuclear Generating Etation_e_.g_.

, Unit 2), , Boston Edison NRF4T1 ALAB-269,1 Co. , (1975).

l

~

contention, as presently worded." Id. at 13. The Staff submits that the

. foregoing shows Consolidated Intervenors' intention that the previously admitted contention be withdrawn in its entirety, to be replaced by the amended contentions.

Further, while in their Motion to Amend, Consolidated Intervenors asserted that the previously admitted contention contained two allegations, 8,/ the first of v'hich is the " portion" which they assert has not been appealed and is still viable, they are currently asking the Licensing Board to reconsider its rejection of Amended Contention 1.

Consolidated Intervenors' Motion for Reconsideration (November 4,1986).

The reasons given for reconsideration are essentially the same as underlie Consolidated Intervenors position regarding the first allegation in the previously admitted contention. See Motion for Reconsideration at 2. The Licensing Board rejected Amended Contention 1. E Given the fundamental similarity between rejected Amended Contention 1 and that portion of the original contention which Consolidated Intervenors contend

( remains viable, the logic of the Licensing Board's October 30th ruling 1

~

strongly suggests that the latter would not, in any event, constitute an independently admissible contention and, thus would have been rejected t

l 8/ Motion to Amend at 6, n.3. <

-9/ The Board rejected Amended Contention 1 because (1) "it contains l

procedural assumptions tbst are more properly the subject of motions than of contentions"; (2) "[it) 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"; and (3) "[ft assumes] that it is necessary to identify the cause for past delay in order to repudiate l the causes of that delay." October 30, 1986 Order at 7.

I

had it been presented as such; it simply does not stand alone as an issue for litigation.

Moreover, if Consolidated Intervenors were correct in arguing that a portion of the previously admitted contention was not appealed and, thus, remains viable before the Licensing Board, it would appear unnecessary for them now to be asking that Licensing Board to reconsider its rejection of the fundamentally similar Amended Contention 1. Consolidated Intervenors cannot have it both ways. The Staff submits that the Appeal Board should treat the original contention as a unified whole and reject Consolidated Intervenors' assertions that their amended contentions do not constitute a complete replacement of the previously admitted contention.

Therefore, since no portion of the original contention on appeal is befoi e the Licensing Board , and, in any event, the whole of the previously admitted contention was supplanted by Consolidated Intervenors' amended contentions, the appeal of the previously amended contention is indeed academic and may be dismissed.

B. Lifting of Stay of Discovery Consolidated Intervenors also request that the Appeal Board's previously imposed stay of discovery be lifted. Motion at 2. In light of the Staff's position that the original contention is no longer in this proceeding as a result of the admission of Amended Contention 2, the Staff submits that Consolidated Intervenors' request is moot. Since this contention is no longer viable, there can be no discovery thereon. See 10 C.F.R. I 2.740(b)(1).

l

IV. CONCLUSION For the reasons discussed above, the Staff agrees that, given the complete substitution of Amended Contention 2 for the single original contention now on appeal, that appeal is now academic and need not be pursued further by the Appeal Board. In so ruling, however, the Staff would urge that the Appeal Board make cIcar that all aspects of the previously adraitted contention are encompassed by the dismissal of the appeal. Additionally, since the original contention is no longer in this proceeding, the motion to lift the discovery stay is moot.

Respectfully submitted,

,A n 0 Richard G. Bachmann Counsel for NRC Staff Dated at Bethesda, Maryland this 20th day of November,1986 1

~

OCCKET f UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'86 NOV 25 P12:17 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l 0FF C:.

In the Matter of ) [Inc

)

TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-CPA s.

COMPANY, et al. )

)

(Comancho Perk Steam Electric )

Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copics of "NRC STAFF RESPONSE TO CONSOLIDATED INTERVENORS' MOTION TO DISMISS PENDING APPEAL AS MOOT AND/OR FOR LACK OF JURISDICTION AND TO IMMEDIATELY DISSOLVE ORDER STAYING DISCOVERY" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or es indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 20th day of November,1986:

Peter D. Bloch, Esq. , Chairman

• Mrs. Juanita Ellis Administrative Judge President, CASE Atomic Safety and Licenning Board 1426 South Polk Street U.S. Nuclear Regulatory Commission Dallas, TX 75224 Washington, DC 20555 l

Nicholas S. Reynolds, Esq.

l Dr. Kenneth A. McCollom William A. Horin, Esq.

Administrative Judge Bishop, Liberman, Cook, 1107 West Knapp Purcell a Reynolds Stillwater, OK 74075 120017th Street, N.W.

Washington, DC 20036 Elizabeth B. Johnson Administrative Judge Roy P. Lessy, Jr. , Esq.

Oak Ridge National Laboratory Wright si Talisman, P.C.

P.O. Box X. Building 3500 Suite 600 Oak Ridge, TN 37830 1050 17th Street, N.W.

Washington, DC 20036-5566 Dr. Walter H. Jordan Administrative Judge Mr. W. G. Counsil 881 W. Outer Drive Executive Vice President Oak Ridge, TN 37830 Texas Utilities Generating Company 400 North Olive Street, L.B. 81 Billie Pirner Garde Dallas, TX 75201 Trial Lawyers for Public Justice 3424 North Marcos Lane Appleton, WI 54911

t Robert D.. Martin William L. Brown, Esq.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive, Suite 1000 611 Ryan Plaza Drive, Suite 1000 Arlington, TX 76011 Arlington, TX 76011 Robert A. Wooldridge, Esq. Mr. Ilarry Phillips Worsham, Forsythe, Samples Resident Inspector / Comanche Peak

& Wooldridge Steam Electric Station 2001 Bryan Tower, Suite 2500 c/o U.S. Nuclear Regulatory Commission Dallas, TX 75201 P.O. Box 38 Glen Rose, TX 76043 Anthony Z. Roisman, Esq.

Trial Lawyers for Public Justice Thomas G. Dignan, Esq.

2000 P Street, N.W. , Suite 611 Ropes & Gray Washington, DC 20036 225 Franlin Street Boston, MA 02110 William H. Burchette, Esq.

Mark D. Nozette, Esq. Atomic Safety and Licensing Appeal Heron, Durchette, Ruckert Board Panel

• a Rothwell U.S. Nuclear Regulatory Commission Suite 700 Washington, DC 20555 1025 Thomas Jefferson Street, N.W.

Washington, DC 20007 Docketing and Servico Section*

. Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel

• Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Robert A. Jablon, Esq.

Spiegel & McDiarmid 1350 New York Avenue, N.W.

Washington, DC 20005-4798 l

Richard G. Bachmann Counsel for NRC Staff

- _ _ _ _ _ . . - _ _ . . _ - _ _ - . -___ _ - . _ _ _ _ _ - _ _ . _ - . _ - . - _ . _ _ _ . - - - _ , _ _ . , , _ - . _ _ _ - _ _ , . _ , _ , , _ -