ML20215C095
| ML20215C095 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/07/1986 |
| From: | Ellis J, Roisman A Citizens Association for Sound Energy, GREGORY, M., TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#486-1024 CLI-86-15, CPA, NUDOCS 8610100080 | |
| Download: ML20215C095 (16) | |
Text
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l o?'I DOCKETED BEFORE THE UNIT 80 STATES NGCLdAR REGULATORY COMMISSION
'86 GCT -8 P4 :38 defore the Atomic Safety and Licensing Appeal Board g9 in In the Matter of
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TEXAS OTILITI8S GENERATING COMPANY, 1
Dkt. No. 50-445-CPA et al.
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(Comanche Peak Steam Electric
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Station, Unit 1)
)
CONSOLIDATED INTBRV8NORS ' COMM8NTS ON CLI-86-lS 1.
Tne Admitted Contentiens Are Valid Althougn this Board sought a direct ruling on the central issue raised by TUEC in its appeal, the Commission did not respond to the certified question.
Rather the Commission answered a more abstract, out more basic, question, i.e.,
what are the criteria to apply in deciding whether to grant a construction permit extension?
Significantly, the Commission in answering this question did not cetermine whether TdEC nad pled the f acts necessary to establish prima f acie tnat it met either or tne applicable tests, nor aid it determine whetner Consolidated Intervenors have raised a valid contention that properly challenges any suen pleading.
As we shall see subsequently, the Commission had 9000 reason to avoid reacning tnese questions given the facts and circums tances of this case.
l 8610100080 861007 PDR ADOCK 05000445 G
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r-The Commission concluded that there are only two methods by wnich a permittee can establish good cause for an extension of a construction permit:
1.
Establish that there was good cause for the past delay by demonstrating that its f ailure to complete construction was not intentional or dilatory (CLI 15, p.
S ).
2.
Establish that there was good cause for tne extension by demonstrating that work yet to oe done was necessary to correct past regulatory violations and other mistakes, and, in particular, if furtner time was needed to correct past mistakes caused by deliberate disregard of the NRC regulations, establish that the permittee has proposed a corrective action program which would " remove the wrongdoers, and embark on a new effort to construct a safe plant in full compliance with NRC requirements" (CLI-66-IS,
- p. 6) and would demonstrate that the past policies had been " discarded and repudiated."
Id. a t p.
9.
Concededly the Commission used language in CLI-86-15 that, when read outside the context of this case and the entire decision, coula indicate an intent to deny tne admitted contention.
CLI-do-15, p.
7 ("if a permittee is seeking a CP extension solely because more time is needed to correct deficiencies, a contention worded line tnis one and directed only I
at past conduct would not be suf ficient...") anu p. 9 l
(essentiaily identical statement).
However, the Commission does i l
l l
not so rule itselt1 and could not since the allegations of TUEC in its Application and the Statf evaluation are at best ambiguous on whether TUEC seeks to meet the first " good cause" test and never address the questions raised by the newly formulated second
" good cause" test for a construction permit extension.
Were the question as simple as TOBC and tne S taf f assert in their pleadings, why would the Commission not address the question directly?
Significantly, the Commission begins its discussion of tne admissibility of a contention like tnat raised by Consolidated Intervenors with, "If_ the permittee," and cites filings by Applicants lawyers as "See" (CL1-86-15, p.
7 and fn 3), which indicates, as properly it should, that on the record of the Application itself 2 --
i.e.,
the notarizeo and sworn statement in the form of a letter f rom William G. Counsil to Harold Denton 1
Tne Commission never addresses the problem raised by this Board in its certification order of July 2, 1986 (p.
9,
- n. 13), which would surely have to oe f aced if it ruled that Consolidated Intervenors' contention already admitted by the ASLB as of tne time it wrote its brief to the United States Court of Appeals was carred as a matter of law. Having snif ted the problem back to this Board makes it no less resolvable except to find that the admitted contention is acceptable and should be interpreted in light of the Commission's new guidance whicn focusses attention both on the original cause for the delay and whether TUSC's proposed remedial program is designed to prevent a repetition of that cause tnrough appropriate firings, compliance with regulations, and discarding and repudiating past policies.
2 The Application in the form of a notarizea letter f rom William G.
Counsil to darold Denton (Jan. 29, 19a6) is the only document that can be relied upon to define the basis for the request.
Everything else nas been lawyer argument.
An intervenor is entitled to know what an Applicant claims as the basis for its action before the intervenor must trame its contention.
Surely the criteria for a well pled intervention petition is equally applicable to the Application
_3_
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(J an. 29, 1986) -- there is doubt as to the reason TUEC advances to justify the requested extension.
TUEC claimed to nave good cause for the past delay and good cause for the extension but its only analysis was an assertion -tnat it neeaed more time in order to respond to the questions raised by tne NRC Staff's Technical Review Team (TRT), by the Board and parties in the ASLB operating license proceedings, and raised by other external sources.
Counsil Letter, pp. 1-2.
Now TUEC carefully avoids claiming which of the two tests it relies upon or whether it relies on both tests.
See Permittees' Memorandum in Response to the Appeal Board Order of September 22, 1986.
The only activity TUEC identifies as requiring more time is conducting the CPRT.
While the Commission refers to this as a program to " determine and correct safety problems" (p. 7), this is not supportable based on TUEC's Application for an extension.
In that pleading the delay is repeatedly attributed to the need to conduct the CPRT, whicn is a program of reinspections and reanalyses to respond to concerns raised by others and, significantly, is not a program designed to correct problems.
Washington Public Power Supply System (WPPSSS Units 1 and 2), CLI-82-29, 16 NRC 1221, 1230-31 (1982).
See al-CPRT (Rev. 3), Introduction, p.10.
Corrective actions, if any, are not part of the CPRT ef fort but separate trom it3 (see CPRT (Rev. 3), Appendix H, p.1), and TUSC does not 3
Not only is the corrective action not performed by the CPRT, the decision as to whether any corrective action is warranted is made by TUdC employees ano not CPRT employees.
See CPRT Procedures CPP-016,
" Safety Significance Evaluations of Deviation Reports" (Rev.
2, 1/18/db) and TUGCO Procedures CP-QP 16.3 " Processing CPRT Deviation Reports /Ooservation Notices," which leave to TUGCO Quality Engineers (suen as former site non-ASMB QA Supervisor Brandt) the ultimate,
m l
l plead such corrective actions as a cause for the delay but relies solely on the existence of the CPRT Program.4 For its part the Staff also blurred the line between good cause for delay and good cause ror an extension when it concluded on February 10, 1986, using the phrase "' good cause' for the delay" to descrioe what was'more in the natu re of a statement of good cause for the extension, i.e.,
the Applicants' need for more time to complete significant efforts "to address and resolve questions raised by the staf f in the course of its review as well as issues raised by the Licensing Board and other parties in the operating license hearing."
Evaluation of Request for Extension of the Construction Permit completion Date, Comanche Peak Steam Electric Station Unit No. 1, Texas Utilities Electric Company, e_ti a_1_., Dock e t N o. 50-4 4 5 ( Fe b r u a ry 10,19 8 6 ), pp.1-2.
The Staf f does not find that further time is needed to correct any problems.
Neither TUEC nor the Staff address the underlying i
decision on whether CPRT-identified " deviations" (a oefined term) require non-conrormance reports and what, if any, corrective action is required.
4 This is not a mere oversight by TUEC in its Application.
TUEC is now lockeo in battle against its co-owners in litigation in 1
state court in Texas, where the issue is whether TUEC has oceacned its contractual duty to build CPSES properly, on time, i
and at a reasonaole cost.
Tex-La Electric Cooperative or Texas, J
I nc. and Texas Municipal Power Agency E Texas Utilities and
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Texas utilities Electric Co.,
Dist. C t.
of Travis County, TX, i
9sth Judicial Dist., Cause No. 399,336; Brazos Electric Power Cooperative, Inc.
v_._ Texas Utilities, Dist. C t.
of Travis County, l
Tx, 345th Judicial Dist., Cause No. 399,482; Texas Utilities v_._
Tex-La Electric Cooperative, Inc., Texas Municipal Power Authority and Brazos Electric Power Cooperative, Dist. C t.
of Dallas County, TX, A-14 tn J udicial District, No. 86-6809.
An admission now tnat corrective actions are needed could affect TUEC's position in those cases.
-S-
cause for the delay, i.e., why this essentially completed plant is not ready for a decision on whether it should obtain an operating license.
Faced with these facts and the lack of any legitimate claimed basis tor an extension, Consolidated Intervenors framed several contentions, one of which (Gregory 1 and CAS8 6) contained two sub-contentions (parts a and b), tne former of whicn focussed on, inter alia, TUEC's f ailure to make any allegations that would, if acceptea, provice a basis for an extension.
In identical language, the two contentions alleged (Petitions to Intervene of Meddie Gregory (Contention 1) and CASE (Contention 6)):
Applicants have not given any reason for a.
the existence of the delay.
They only assert that they need more time to complete a reinspection, redesign, and reconstruction program but they oo not disclose the reason why such programs are needed or that the reason for delay was not intentional and without a valid purpose.
Tne Licensing Board accepted this contention (Special Prehearing Conterence Memorandum and Order (5/2/86),
p.
10):
Petitioners appear to be correct in pointing ou t that Applicants l ave not alleged the underlying cause of thc delay in completing construction nor what v lid purpose may explain that celay, ho appeal was taken from this contention and it remains valid and strengthened by the decision in CLI-Bo-15.
In CL1-ub-15, tne Commission tocussed on part b. of the Gregory / CASE contention which was Consolidated Intervenors' allegation ot the real reason why an extension was needea.
The
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Commission concluded that, if this were the reason a delay existed, it would not be a valid contention if the reason for the extension request is tnat more time is needed to correct the deticiencies.
CLI-86-15, p.
7.
What the Commission does not address and leaves f or this Board is the question of whetner the actual two part contention involved here is valid.
We submit that it is.
First, even it TUEC had plea that innocent violations of NRC regulations have caused delay due to the need to cetect and correct those violations, it is surely open to Consolidated Intervenors to allege, as they do in part b.
of their contention, that the reason for the violations is not innocent.
The real reason for the delay is a vital f actor in the Commission's newly 1
formulated test for proving good cause for an extension because, unless the permittee establishes that it has taken steps to eliminate the underlying cause for the delay, its request for an extension cannot be granted (CLI-86-15, p.
8):
[T}o grant a CP extension request in the face of a finding that the past delays were caused by a past and still ongoing policy of deliberate violations would be to reward such wcongdoing.
Surely the drafters of the Atomic Energy Act cannot have had this in mind when they allowed CP extensions for i
good cause.
l Second, as part a. of the admitted contention alleges, TUEC l
does not identify the cause for the delay and, unless it alleges its view ot tne cause, the Board cannot determine wnether the l
cause is innocent violations or deliberate violations, much less whetner TUEC has taken the steps necessary to avoid repetition of l l
r the same mistakes.5 TUEC and the Staf f may argue that an extension sought to permit time to answer questions raised by the Board, the S taf f, other parties, and allegers is for a gooo cause and warrants an extension.
Of course, there is no such holding by tne Commission either here or in the WPPSS decision, and for good reason.
Tne public policy that f avors giving a permittee more time to complete its plant in order to correct admitted deficiencies would not be furthered by allowing a permittee, sucn as TUEC, more time to come up with litigation strategies and courtroom evidence to further its effort to evade solving problems that the NRC Staff found existed (see SSERs 7, 8,
9, 10, 11 (particularly Appendix P)).
There can be no doubt that tne CPRT is nothing more than a litigation tool controlled by lawyers for the purpose of trial preparation.6 There is no compelling policy reason to 5
For instance, the CPRT does not purport to be a program developed in compliance with 10 CPR Part 50, Appendix B.
CPRT, Appendix G, p.
1, whicn elliptica11y refers to the principles of Appendix B and a commitment to quality but does not contain a commitment to full compliance with Appendix B requirements.
Thus the CPRT does not represent Appendix B qualified documentation, trending, clear and detailed inspection procedures, independence f rom scheduling and cost pressures, freedom to find and require correction of unsatisf actory conditions -- to mention only some of the most glaring deficiencies.
O Counsel for TUEC made this clear during a Prehearing Conference on November 12, 1985 (T r.
24,238-239):
All of the CPRT personnel are experts retained in anticipation of litigation.
I wish to reiterate as the program plan makes clear, CP RI' is coing no inspections, no cesigns, no analyses of record.
All or the CPRT people at the moment are also l
nontestifying experts within tne meaning of the cichotomy me [sicj erected by rule 2o(b)4, because until they finish their work,. _ _.
allow lawyers more time to try to find the winning legal strategy.
The allegations that the TRT confirmed and the questions raised by the Board, parties, and allegers had been raised much earlier, and TUEC could have made an honest ef fort to address these quastions long ago.
See CASE Motion for an Evidentiary Standard (2/4/65), Appendix B.
CASE has argaed in the OL proceeding that this CPRT litigation strategy is a waste of time ano doomed to f ailure and urged instead that the ASLB, aware of the Staf f findings, should define what TUEC must do to establish that Units 1 and 2 should be granted operating licenses.
I d_i., denied as premature by ASLB Order dated 3/12/85.7 In sum, the current status of this proceeding is that Consolidated Intervenors have an admitted contention which raises at least two subcontentions which the Commission has held may be raised in a construction permit extension proceeding:
(1) TUEC has not alleged facts sufficient to meet the standards established by the Commission for extension of its construction and until they've reached their opinions and conclusions, no decision has been made as to who will testify and indeed no decision could be made.
7 Although now the OL proceeding will aodress the question of the adequacy of the CPRT Program Plan, it will focus on dif ferent issues from this proceeding.
Here the Commission has limited the issues to whether TUSC has a good cause for past delay or whether it has demonstrated a good cause for the extension by identifying the cause tot the delay and taking steps to prevent its repetition (a limited hearing with which Consolidated Intervenors do not agree but which they cannot challenge except oefore the United States Court of Appeals).
In the OL proceeding the focus is on, inter alla, whether the proposed CPRT is the kind of program which will establish that the plant has been built in accordance with the construction permit and NRC regulations.
permit, and (2) TUSC has not identified tne proper cause of its f ailure to complete construction within the allotted, and previously extended, time and thus cannot establish that its past mistakes were innocent or that it has aiscarded and repudiated that policy nor that it will comply with NRC regulations.
II.
Some Procedural Considerations and Practical Solutions As this Board is aware, there is now more to this proceeding than the contention now pending here.
Consolidated Intervenors have sought leave from the ASLB to amend their admitted contentions and alternatively to have the ASLB reconsider its ruling denying certain previously filea contentions.
In addition, we believe that should the admitted contention now be declared invalid it would trigger appellate rights of Consolidated Intervenors to this Board from the ASLB decision denying other contentions and/or refusing to grant i
reconsideration of its earlier ruling.
Only after a rejection of the admitted contention would the conditions of S2.714a(b) be met and the time for an appeal begin to run as to Consolidated i
Intervenors.
In addition, as noted above, TUEC has made no pleading that addresses the central question of which test it seeks to meet to obtain the extension of its permit nor has the Staff clearly indicated under wnich test it purportea to find that TOEC qualified for the extension.
Finally, if TudC is claiming tne extension should be granted because there is good
cause for i t, ratner than good cause for the delay, there is no allegation in tne Application that addresses the f actors the Commission now rules must ce met All of these problems are a oirect result of the evaluation of the concepts applicable to the good cause determination, wnten have emerged in CLI-d6-15.0 One solution is to allow all parties to re-evaluate their basic positions in light of tne Commission evaluation ny tne tollowing procecure:
Tne evolution to the present " good cause" criteria really began when the Appeal Board noted in Washington Public Power Supply Sys tem (WPPSS do. 2), ALA8-722, 17 NRC 546 (1983), that good cause in cases such as this one includes consideration of wny tne plant should oe completeo, and that even if the delay was caused by dilatory conduct there still might be gooo cause for the extension.
I ci., 17 NRC at 553.
In their Opposition to Appeal or TuSC and NRC Staff (5/27/db), Consolidated Intervenors argued that tnese concepts and others required a consideration of imposing conditions on the proposed issuance of a construction permit extension.
Id. at pp. 16-22.
Now in light of CLI-86-15, it is clear conditions are very much appropriate, particularly in this case.
Should the ASLB conclude that willful violations of NRC regulations were the cause for tne delay, then an extension to provide time to correct those problems could only be granted if TOEC met certain conditions to assure dismissing wrongdoers, f ull compliance with NRC regulations, and discarding and repudiating the policies that caused the proolems.
- See, e.g.,
Metropolitan ddison Co. (TMI, Unit 1), CLI-dS-2, 21 NRC 282 (19dS).
Since most of the principal wrongdoers nave been retained or rehired at tne plant (e.g.,
Messrs. Branat and Purdy, who were responsible for non-ASME anc ASME QA/QC at tne plant and have Deen founa oy the Department of Labor to have " reputations f or untruthf ulness..." (Dunnam v. Brown & Root, Inc., 64-8RA-1 ( ALJ, dov. 30, 1984); ( Atchison v. Brown & Root, Inc.,62-S RA-9 ( ALJ. Dec.
3, 19821), who are still employed at tne plant in prominent capacities), and TOEC has never admitted, much less discardeo or repudiatea, the policy of evading NRC regulations wnen tney tntnk they can get away with it, impositicn of conoitions is obviously appropriate in this CPA proceeding and essential if TOEC is to obtain the extension it seeks.._ _ _.
I 1.
Within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> TOEC indicates whether it wants to l
l amend its Application.
2.
If so, it files an Amenced Application within two days (in hand).
3.
If the amendment is filed, the Staf f suspends construction at Unit i until it acts on tne Application, including re-evaluating the question of significant hazards.
4.
Consolidated Intervenors file any contentions they wish to raise based on the Amended Application within two days (in hand) af ter receipt of the Amended Application.
b.
If TUEC chooses not to file an Amended Application, this Board waits to act on the issue pending before it on the appeal at least until the ASLB acts on Consolidated Intervenors' pending request to amend contentions and alternatively to reconsider prior rulings.
These same considerations -- whether and how the proposed work by TUEC for which this extension is needed is preceded by discarding and repudiating past policies that caused violations of NRC regulations --
also demonstrate clearly that a proposal for extension of a construction permit based on good cause for the extension inherently raises "significant hazard considerations" related to the cnaracter I
and competence of those who will be in charge of the plant safety during turther construction, requiring that the hearing precede the approval.
San Luis Onispo Mothers for Peace v.
U.S.
Nuclear Regulatory Commission, F.2d (9th Cir., No. 86-7297, decided September 11, 1966), and 4 2 U.S.C. 3 2 2 3 9.
, [
l
6.
Following the ASLB ruling, the parties will have seven days (simultaneous filings) to supplement their pleadings on the issue now pending before this Board in light of the ASLB ruling.
We believe this process will most appropriately address the realities of what has occurred here and avoid this Board deciding issues based upon positions of the parties which do not reflect those realities.
Also, favorable action by the ASLB on the pending request of Consolidated Intervenors would render this appeal improper under $2.714a and/or moot since the admission of other contentions by the ASLB would mean denial of this contention would not result in dismissal of the case ($ 2.714 a )
and amendment of the contention now before this Board would moot the present appeal.
CONCLUSION We believe the Commission's Order in CLI-86-15 has clarified tne criteria applicable to construction permit extension r7 quests but has to some extent confused the matters in this case.
While we prefer this Board to tollow our procedural mid-course corrections, we do believe the matter is at least clear enough to deny the appeal by TUEC and the Staff.
l !
o
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Respectfully submitted, YM
' ANTHONY Z.
SAKN Trial Lawye f& Public Justice 2000 P Str t, NW, d611 Washingto,
D.C.
20036 (202) 463-8600 Counsel for Meddie Gregory sy ANITA ELLIS 1 126 South Polk D 11as, TX 75224 214)946-9446 Representative for CASE Dated:
October 7, 1986 i -
s UNITED STAT'ES COLKEICE NUCLEAR REGULATORY COMMISSION ugat Before the Atomic Safety and Licensing Appeal Board 16 mi -8 P4 :38 In the Matter of
)
6fRN O Maal n"Y r
TEXAS UTILITISS GENERATING COMPANY,
)
Okt. Nos. h-hk et al.
)
)
(Comanche Peak Steam Electric
)
Station, Unit 1)
)
CERTIFICATE OF SBRVICE s
I hereby certify that copies of CONSOLIDATED INTERVENORS' COMMENTS ON CLI-66-15 were served today, October 7,1986, by first class mail, or by hand where indicated by an asterisk, and by Zap Mail where indicated by two asterisks, upon the following:
Administrative Judge Peter Bloch*
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Walter H. Jordan 881 West Outer Drive Oak Ridge, TN 37830 Dr. Kenneth A. McCollom 1107 West Knapp Stillwater, OK 74075 Blizabeth B. Johnson Oak Ridge National Laboratory P.O. Box X, Building 3S00 Oak Ridge, TN 37d30 Alan S.
Rosenthal, Chairman
- Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission 4350 East-West Hwy, 5th floor Bethesda, MD 20814
Dr. W.
Reed Johnson
- Atomic Safety & Licensing Appeal Panel U.S. Nuclear Regulatory Commission 4350 East-west uwy, 5th floor Bethesda, MD 20814 Thomas S. Moore, Esq.*
Atomic Safety & Licensing Appeal Panel U.S. Nuclear Regulatory Commission 4330 East-West Hwy, 5th floor Bethesda, MD 20814 Nicholas Reynolds, Esq.
Bishop, Liberman, Coox, Purcell & Reynolds 1200 17th Street, NW Washington, D.C.
20036 Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Geary S. Mizuno, Esq.*
Orfice of Executive Legal Director U.S. Nuclear Regulatory Commission 7735 Old Georgetown Road, 10th floor Washington, D.C.
20555 Thomas G. Dignan, Jr.**
Ropes & Gray 225 Franklin Street Boston, MA 02110 f'
s
/
M l
ANTHONY R
SMAN L
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