ML20214T002
| ML20214T002 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 09/26/1986 |
| From: | Dignan T ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#386-904 CLI-86-15, CPA, NUDOCS 8609300161 | |
| Download: ML20214T002 (9) | |
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L fDf 00LKETED U%RC Dated:
September 26, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CFFICE l
rec? tij before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of
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TEXAS UTILITIES ELECTRIC
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Docket No. 50-445-CPA COMPANY, et al.
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(Comanche Peak Steam
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Electric Station, Unit 1)
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PERMITTEES' MEMORANDUM IN RESPONSE TO THE APPEAL BOARD ORDER OF SEPTEMBER 22, 1986 On July 2, 1986, this Appeal Board certified a question to the Commission in the above-entitled matter.
Under date of September 19, 1986, the Commission issued its response to that question.
Texas Utilities Electric Co. (Commanche Peak Steam Electric Station, Unit 1), CLI-86-15, 24 NRC (Sept. 19, 1986) (hereafter "CLI-86-15" and cited to the slip opinion).
On September 22, 1986, this Appeal Board issued an Order providing the parties an opportunity "to comment" on CLI-86-15.
Herein the Permittees, Texas Utilities Electric Company (TUEC et al.), provide their comments.
8609300161 860926 PDR ADOCK 05000445 PDR 0
US03
It is the view of TUEC et al. that, for the reasons set forth below, CLI-86-15 dictates the issuance by this Appeal Board of an order reversing the decision of the Licensing Board at issue herein,t and dismissing the petitions to intervene.
In its July 2, 1986 Memorandum and Order, this Appeal Board certified the following question to the Commission:
"Is the admitted CASE / Gregory contention foreclosed as a matter of law by Washington Public Power Supply System (WPPSS Nuclear Project Nos. 1 and 2), CLI-82-29, 16 NRC 1221, 1230-31 (1982)?"
In CLI-86-15, the Commission makes clear that on the basis of CLI-82-29, (cited by this Appeal Board in the certified question), other cases, and certain other principles articulated in CLI-86-15, the admitted CASE / Gregory contention is foreclosed as a matter of law.2 The Commission began its analysis by saying that "a permittee may demonstrate ' good cause' for a CP extension in i
Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit No. 1) Special Prehearing Conference Memorandum and Order (Concerning Parties and Contentions) (unpublished) (May 2, 1986) a Because the Commission's analysis relies, not only on CLI-82-29, but upon other cases and principles, the Commission could not answer the question in the form it was asked with a simple "Yes."
Thus, no inference is properly drawn to the effect that, because the Commission did not simply say "Yes," there remains a need for further proceedings before this, or the Licensing, Board. -
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two different ways."
CLI-86-15 at 5.
The "first" way described by the Commission is by means of a demonstration "that there was good cause for the past delay in plant construction."
CLI-86-15 at 5 (emphasis in original).
The Commission cited as examples of this approach the situations dealt with by it in Public Service Company of New Hampshire (Seabrook Station, Unit 2), CLI-86-6, 19 NRC 975, 978-(1984) and by the Appeal Board in Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, j
551 (1983).
The "second" way described by the Commission was a demonstration "not that there was good cause for the past i
delay, but that there is now good cause for the NRC to allow j
more time for plant completion."
CLI-85-15 at 5-6 (emphasis in original).
The Commission cited as an example of this second method the situation dealt with in the commission decision cited by this Appeal Board in its certified a
question, Washington Public Power Supply System (WPPSS j
Nuclear Projects Nos. 1 and 2), CLI-82-29, 16 NRC 1221 (1982),
i The Commission first assessed the admissibility of the CASE / Gregory contention on the basis that TUEC et al. were j
seeking the extension by use of the "second" of the above-described methods.
CLI-86-15 at 7.
On this basis the Commission held that the contention was inadmissable.
The Commission stated: --
"If the permittee is seeking the permit extension because it claims good cause for the NRC to allow more time for plant completion under WPPSS [CLI-82-29), this particular contention is barred by our WPPSS decision because, as currently worded, it focuses only on the permittee's past conduct.
If a permittee is seeking a CP extension solely becuase more time is needed to correct deficiencies, a contention worded like this one and directed only at past conduct would not be sufficient, even if true, to defeat the extension."
CLI-86-15 at 7 (footnote ommitted, last emphasis supplied)2 The Commission then went on to assess the admissibility of the contention on the basis that TUEC et al. were seeking the extension by use of the "first" described method.
Carefully articulating that it was not relying for its conclusion upon a " simple, mechanical application" of
.Seabrook, CLI-84-6, supra, CLI-86-15 at 7-8, the Commission went on to state that its analysis of the contention 8
It is important to note that the unanimous Commission, after stating that it has " carefully reviewed all of the relevant papers and arguments of the parties to the Boards below", CLI-86-15 at 4, and has assumed "for purposes of decision, that the contention as alleged is true", id. at n.2, has, in the above-quoted language, as well as later language quoted infra from p. 9 of CLI-86-15, held that the contention here involved is
" directed only at past conduct" and as a matter of law is insufficient to defeat the extension.
Thus, there is no room for argument to this Appeal Board that the contention is capable of being read as alleging concerns with present or future conduct of the Applicants, because the Commission found to the contrary. -
vis-a-vis the "first" method " proceeds along the same lines as the analysis under the second way to show good cause, and leads to the same result".
CLI-86-15 at 8 (emphasis added).
At the conclusion of its analysis, the Commission stated:
"Thus, if a permittee is seeking a CP extension because of delays associated with the need to correct safety problems, a contention, worded like thic one, that is directed only at past conduct would not be sufficient, even if true, to defeat the extension."
CLI-96-15 at 9.
In short, the Commission has ruled as a matter of law that the CASE / Gregory contention, no matter which type of good cause showing is being made by the Permittees herein, is inadmissible as a matter of law.
The Commission'c Memorandum and Order, CLI-86-15 therefore requires, we respectfully submit, reversal of the Licensing Board's admission of the contention.
CONCLUSION An Order should issue reversing the Licensing Board decision of May 2, 1986 and dismissing the petitions to intervene.
Nicholas S.
Reynolds William A. Horin B I SIIOP, LIBERMAN, COOK PURCELL & REYNOLDS 1200 Seventeenth Street, N.W.
Suite 700 Washington, DC 20036 (202) 857-9800 k
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.
Suite 600 1050 Seventeenth Street, N.W.
Washington, DC 20036-5566 (202) 331-1194 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
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' Thomas G. Di gna,0*,)J r.
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e 00LKETED USNRC CERTIFICATE OF SERVICE
.M SEP 29 N137 I, Thomas G. Dignan, Jr., one of the attorngypcforithe i Ah V Applicants herein, hereby certify that on Septe:GSM Q6',TheI made. service
- 1986, same in the hands of Federal-Express, charges prepaid (except that, where indicated by an asterisk, ordinary first class mail used), to:
Peter B. Bloch, Enquire 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 East West Towers. Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Dr. Walter H. Jordan
- Mr. William L. Clements Administrative Judge Docketing & Services Branch 881 W. Outer Drive U.S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Washington, D.C.
20555
- 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 r
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- 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 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Anthony Roisman, Esquire Executive Director Trial Lawyers for Public Justice 2000 P Street, N.W.,
Suite 611 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 Citizens Clinic Director Regional Administrator, Government Accountability Region IV Project U.S. Nuclear Regulatory 1901 Que Street, N.W.
Commission Washington, D.C.
20009 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.
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 F.egulatory San Francisco, California 94111 Commission P.O. Box 38 Glen Rose, Texas 76043
f 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 East West Towers Building Commission
.4350 East West Highway East West Towers Building Bethesda, MD 20814 4350 East West Highway Bethesda, MD 20814 i.
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Thomaa G. Diy am.Jr.
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