ML20214P371

NRC Staff Response Opposing Consolidated Intervenors 861104 Motion for Reconsideration Re ASLB Decision Rejecting Amended Contention 1.Certificate of Svc Encl

ML20214P371
Person / Time
Site:	Comanche Peak
Issue date:	11/24/1986
From:	Bachmann R NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#486-1716 CPA, NUDOCS 8612040174
Download: ML20214P371 (12)

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__D t(o November 24, 1986 00LMETED UNITED STATES OF AMERICA NIfCLEAD #EGULATORY COMf11SSION

'86 DEC -1 A10 :41 BEFORE THE ATOMIC SAFETY AND LICENSING B_OARD 0FFCi.- - ,

• , n In the Matter of ) 00CG i g

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

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(Comanche Peak Steam Electric ) >

Station, Unit 1) )

NRC STAFF RESPONSE TO CONSOLIDATED INTERVENORS' MOTION FOR RECONSIDERATION I. INTRODUCTION On November 4, 1989, Consolidated Intervenors filed a Motion for Reconsideration (" Reconsideration Motion") with the Licensing Board requesting that the Licensing Board reconsider its decision rejecting i

Amended Contention 1. For the reasons set forth below, the NRC Staff

(" Staff") opposes the Reconsideration Motion.

II. BACKGROUND Following the Commission's decision in Texas Utilities Electric Co. ,

c_t al. (Comanche Peak Steam Electric Station, Unit 1), CLI-86-15, 23 NRC

, the Consolidated Intervenors filed a Motion to Admit Amended Contentions , or, in the Alternative, for Reconsideration of Certain Previously Denied Contentions (September 30, 1986). Both the Staff and nh20;;ga gbbjgs 0

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Applicants opposed this motion. I- On Octcher 30, 1986, the Licensing Board issued a Memorandum and Order (Motion to Admit New Contentions or for Reconsideration) (" October 30, 1986 Order"), 2,/ which admitted Amended Contention 2 but rejected Amended Contention 1.

III. DISCUSSION Amended Contention 1 argues that:

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 alleFed or established that they have discarded and repudiated the policies that caused the delay in empletion of construction o f Oti t 1.

The Licensing Board excluded this contention because it " contained procedural assumptions that are more properly the subject of motions than of contentions. " October 30, 1986 Order at 7. In particular, the Licensing Bor.t d rejected the Consolidated Intervenors' argument that Applicants' failure to allege good cause for Unit 1 construction delays 1/ Permittees' Response to Consolidated Intervenors' Motion to Admit

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Amended Contentions or, in the Alternative, for Reconsideration of Certain Previously Denied Contentions (October 15, 1986); NRC Staff Response in Opposition to CASE's Motion for Admission of Amended Contention (October 15, 1986).

2/ The following day, the Licensing Board issued a second Order which corrected and supplemented the October 30, 1986 Order by, inter alla, setting forth in an Appendix A the statement of basis provided by the Consolidated Intervenors in support of Amended Contention 2.

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"should be a barrier to their later deciding to show good cause for past delay. " Id. The Licensing Board also declined to accept the Consoli-dated Intervenors' proposition that it is necessary to identify the cause of past delay in order to repudiate it. Id. Consolidated Intervenors now seek reconsideration on several grounds. It is the Staff's position that none of the grounds presented by Consolidated Intervenors warrant reversal of the Licensing Board's prior rulings.

Consolidated Intervenors first argue that the amended contention is admissible because "the purpose of Contention 1 is to narrow the issues in this proceeding to the only theory claimed by TUEC, i.e., that it has good cause for the extension." Reconsideration Motion at 2. The essence of Consolidated Intervenors' argument is that the Applicants must not be permitted to " offer evidence to support or prevail on a theory that it has not claimed [that the delay in constructon was for a good cause)," until they "f11e an acceptable pleading in which they allege what that good cause is and thus provide Consolidated Intervenors with an opportunity to file contentions in opposition to that allegation." Reconsideration Motion at 2-4.

The only issue which may be litigated in a construction permit extension proceeding is whether " good cause" has been sho,wn. The Commission's decision in this proceeding, CLI-86-15, which reflects further on Washington Public Power Supply System (WPPSS Nuclear Project Nos. 1 & 2), CLI-82-29, 16 NRC 1221 (1980) and Public Service Co. of New Itampshire (Seabrook Station, Unit 2), CLI-84-6, 19 NRC 975 (1984), makes clear that good cause may be shown two ways:

either that there was good cause for the past delay in plant completion,

c or by showing that there is at present good cause for the extension. It is clear from the Reconsideration F.fotion that Amended Contention 1 does not itself seek to have determined whether " good cause" has, as a matter l of fact, been shown. Rather, it seeks only to impose a legal bar to preclude the Applicants from raising an alternative theory of why they should be granted a construction permit extension. It is manifest that this is a purely procedural matter, the only consequence of which is to I- prohibit Applicants, at some later date, from advancing such alternatives.

Even if the Consolidated Intervenors were to prevail on this contention, the Licensing Board would nonetheless have no legal basis to deny the grant of the construction permit extension for Unit 1 if Applicants were

to prevail on the other theory. Preservation of such asserted procedural rights through the words of a contention are inappropriate and contrary 1 to the Commission's Rules of Practice. Cf. Commonwealth Edison Co.

(Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683, 689-90 (1980) (Licensing Board rejected a portion of a contention which "contains a number of reservations of rights, directions as to the inter-pretation and intended scope of references [and] statements of intention i

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... .). A contention must raise an issue that is " litigable. "

Public Service Company of New Hampshire (Seabrook Station, Units 1

, and 2), LBP-82-76,16 NRC 1029,1035 (1982). This contention clearly is I'

nots it merely advances a legal proposition which is itself not amenable to i

litigation. As this Licensing Board noted , Consolidated Intervenors' l

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" procedural assumptions" are more appropriately raised in the form of motions. October 30, 1986 Order at 7. If, at some later date, Applicants chose to demonstrate that there was good cause for the delay in f

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r construction, the Staff perceives no impediment to Consolidated Intervenors in challenging such an assertion. In summary, Consolidated Intervenors' argument that the subject of Amended Contention 1 may properly be raised in a contention is without merit , and should be rejected by the Licensing Board.

Consolidated Intervenors' other argument appears to assert that they should be allowed to plead that Applicants have not repudiated an alleged policy to violate NRC regulations "because it has never identified the failed policies and never identified the responsible parties. "

Reconsideration Motion at 5-6. This is but a restatement of the basic thrust of the amended contention, and Consolidated Intervenors do not attempt to explain why they believe the Licensing Board's rationale (as set out in the October 30,1986 Order) for rejecting this proposition is incorrect. In light of Consolidated Intervenors' failure to present any substantive reason as to why the Licensing Board was incorrect, the Licensing Board should not entertain reconsideration of its earlier ruling.

In any case, the Licensing Board correctly concluded that it is not necessary for a permittee to precisely identify the cause for past delay in order for the permittee to discard or repudiate the causes for that delay.

As the Licensing Board noted, U while it may be easier to renounce a cause of delay when that cause has been accurately identified (" carefully ,

isolated"), it is not always the case that the cause can be identified. For example, a permittee seekinF an extension simply may not have enough information at the time it is seeking a CP extension for it to determine 3_/ October 30, 1986 Order at 7.

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the reason (s) for the construction delay, or has not yet completed its analysis and evaluation that seeks to identify the root cause(s) of the delay. Yet it is entirely reasonable for that permittee to affirmatively state, in advance of the completion of its investigation and evaluation, that any improper factor contributing to the delay will be discarded and appropriate corrective actions instituted. To hold otherwise is to conclude that, as a legal matter, no permittee can discard and repudiate past causes of delay (i.e., past conduct or policies) unless and until the permittee precisely identifies exactly what those causes were. Such a holding is illogical and runs counter to the underlying Commission policy that licensees be encouraged to conduct vigorous internal investigations and remedial safety actions . See Texas Utilities Electric Co. , et al.

(Comanche Peak Steam Electric Station, Unit 1), CLi-86-15, 23 NRC ,

slip op. at 6; Unshington Public Power Supply System (WPPSS Nuclear Projects Nos.1 and 2), CLT-82-29,16 NRC 1221,1230-31 (1982).

The Staff submits that the facts in this proceeding are precisely illustrative of the points made above. In early 1986, at the time Appli-cants filed their CP extension request, Applicants had already begun to develop and implement a comprehensive corrective action program -- the Comanche Peak Response Team (CPRT). Indeed, the CPRT was not undertaken to support the CP extension request (this is obvious, given the inndvertent filing of the CP extension request after the specified completion date set forth in the Unit I construction permit). Rather, the CPRT was initially undertaken to address matters raised by the Staff's s

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Technical Review Team (TRT) O and was subsequently expanded to include evaluations of design adequacy and quality of construction, as well as other " external source issues." 5_/ As part of these evaluations, the CPRT has committed to undertake " root cause" and " generic implication" analyses , in order to assure that all safety significant deficiencies have been identified and corrected throughout the facility.

See CPRT Program Plan, Revision 3 (January 1986) at 1-8. Thus, at the time Applicants requested the CP extension, they were unaware of the i full scope of the problems identified by the Staff, much less the underlying causes of the problems. Nonetheless, prior to the point in time that Applicants became aware of the need for a CP extension, they had already aclulowledged the need to institute _ corrective actions, and had begun to develop, refine and implement such a program. It would significantly undermine the enmmission's policy of encouraging permittees to identify and correct problems, if a legal principle were established that permittees who affirmatively instituted corrective action are not legally entitled to a CP extension simply because they had not yet identified or acknowledged the cause of the delay in construction.

-4/ The TRT's factual findings and evaluations were set forth in Supple-mental Safety Evaluation Reports (SSERs) 7 through 11.

-5/ Consolidated Intervenors apparently concede this point, since in the statement of basis in support of Amended Contention 1, they refer to Applicants' statement that the CPRT was undertaken because of the finding of the TRT. In any event, the Staff refers the Appeal Board to CPRT Program Plan, Revision 3 (January 1986),

Attachment 1, " Chronology of Events." Review of Attachment 1 discloses that the Applicants' initiation and subsequent supplementation of the CPRT Program Plan was largely driven by information provided by the Staff in letters, SSERs and at meetings.

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Apart from the reasons relied upon by the Licencing Board, there  !

are other grounds for excluding Amended Contention 1.

Perhaps most importantly, the contention alleges only that Applicants have not repudiated " policies that caused the delay in the completion of construction of Unit 1," but it does not allege that the policies allegedly responsible for delay b were improper, dilatory or without good cause, which is the sine qua non of a construction permit extension proceeding.

See UPPSS, CLT-82-29, supra, and Comanche Peak, CLi-86-15, supra.

For this reason, Amended Contention 1 is not admissible. O The Consolidated intervenors contend that if the Licensing Board continues to reject their view that Applicants must first identify the policies causing the delay before they can repudiate those policies, the Licensing Board should not reject Amended Contention 1 but should

" qualifiedly admit the conter. tion by listing the factors that must exist in the CPRT program to avoid the need to find the cause for the delay."

Reconsideration f.fotion at 4. These factors, assert Consolidated

-6/ The Staff points out that neither Amended Contention 1 nor its statement of basis identifies with specificity exactly what were the policies that the Consolidated Intervenors contend were responsible  ;

1 for the delay. It is well established in NRC case law that -

contentions must give opposing parties fair notice of what they are to i defend against. Kansas Gas and Electric Co. (Wolf Creek Generating t S tation , Unit 1), LBP-84-1, 19 NRC 29, 24 (1984); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2),

LDP-85-20, 21 NRC 1732, 1742 (1985). The failure of Amended Contention 1 to give adequate notice of the content of the policies which Consolidated intervenors contend were responsible for delay is an additional ground for exclusion of this contention.

7/ The Staff continues to rely on the arguments set forth on pages 9 to 10 of the NRC Staff Pesponse in Opposition to CASE's f.fotion for i Admission of Amended Contention as grounds for excluding Amended Contention 2.

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Intervenors, "must include" 100 percent reinspection and " total independence" of the effort. Id. at 4-5. The only reason offered in support of this proposition is the assertion that, " absent an identification of the factors to be met and the conditional acceptance of the contention, Consolidated Intervenors are denied the right to pursue a contention based on the mere possibility that TUEC will meet a standard that this Board has not defined." Id. at 5.

Consolidated Intervenors' suggestion should be rejected by the Licensing Board. The essence of this argument is directed towards the adequacy of the Applicants' corrective program, a matter already present in Amended Contention 2 which was admitted by the Licensing Board in its October 30 Order (albeit under appeal by both Applicants and Staff).

Should Amended Contention 2 be litigated, Consolidated Intervenors would, presumably, be free to utilize the record there developed to argue the inadequacy of the corrective action program in terms of absolving Applicants of the need to define the grounds for past delay. No measure of adequacy need now be established, indeed, given the lack of basis in the Reconsideration Motion, (which, in any event, would har admission of such a contention in its own right), the adoption of such factors as suggested by the Consolidated Intervenors would be wholly arbitrary.

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d IV. CONCLUSION The Licensing Board should deny Consolidated Intervenors' Motion for Reconsideration of its decision to reject Amended Contention 1.

Respectfully submitted, a

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Richard G. Bachmann Counsel for NRC Staff Dated at Bethesda, Maryland this 24th day of November,1986

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, kh.f UNITED STATES OF AMERICA '86 DEC -1 A10:41 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARDgfF g ] g^{

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In the Matter of ) '

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

(Comanche Peak Steam Electric )

Station, Unit 1) )

CERTIFICATE OF SERVICE

• I hereby certify that copies of "NRC STAFF RESPONSE TO CONSOLIDATED INTERVENORS' MOTION FOR RECONSIDERATION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 24th day of November, 1986:

Peter D. Bloch, Esq. , Chairman

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

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

Administrative Judge Bishop, Liberman, Cook, 1107 West Knapp Purcell & 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 & Talisman, P.C.

P.O. Box X Building 3500 Suite 600 Oak Ridge, TN 37830 105017th Stteet, 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 Citizens Clinic Director Government Accountability Project 1901 Que Street, N.W.

Washington, DC 20009

c - .

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. Harry Phillips Worsham, Forsythe, Samples Resident Inspector / Comanche Peak

& Wooldridge Steam Electric Station

. 2001 Bryan Tower, Suite 2500 c/o U.S. Nuclear Regulatory Commission f

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 a Gray Washington, DC 20036 225 Franlin Street Boston, MA 02110

William H. Burchette, Esq.

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

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

Washington, DC 20007 Docketing,and Service 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. .g Spiegel a McDiarmid 1350 New York Avenue, N.W.

Washington, DC 20005-4798 M

N Riclard G. Bachmann_ -

Counsel for NRC Staff W