ML20216J810
| ML20216J810 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 06/30/1987 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | NRC OFFICE OF THE GENERAL COUNSEL (OGC), TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| References | |
| CON-#387-3915 ALAB-868, CPA, NUDOCS 8707070032 | |
| Download: ML20216J810 (64) | |
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UNITED STATES OF AMERICA I NUCLEAR REGULATORY COMMISSION
'87 JUY 30 R2:02 ATOMIC SAFETY AND LICENSING APPEAL BOARD ur>
DO W' Administrative Judges: -
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Alan S. Rosenthal, Chairman June 30, 1987 l Dr. W. Reed Johnson (ALAB-868)
Thomas S. Moore i
SER\'ED JUN 3 0 1987
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In the Matter of )
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TEXAS UTILITIES ELECTRIC ) Docket No. 50-445-CPA COMPANY, ET AL. )
l (Comanche Peak Steam Electric ) '
Station, Unit 1) )
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Thomas G. Dignan, Jr., Boston, Massachusetts (with whom i R.K. Gad, III, William S. Eggeling and Kathryn A. !
Selleck, Boston, Massachusetts, were on the brief) for the applicants Texas Utilities Electric Company, St al.
Anthony Z. Roisman, Washington, D.C. (with whom Juanita Ellis, Dallas, Texas, was on the brief) for the l intervenors Meddie Gregory and Citizens Association l for Sound Energy.
Geary S. Mizuno for the Nuclear Regulatory Commission staff.
DECISION Opinion for the Board by Mr. Moore, in which Mr. Rosenthal joins:
Before us are two sets of appeals by the applicants, Texas Utilities Electric Company, et al., and the NRC staff in this construction permit extension amendment proceeding.
In the first appeal, the applicants and the staff each challenge, pursuant to 10 C.F.R. S 2.714a, the Licensing Board's May 2, 1986, order granting the intervention 8707070032 870630 PDR A' O ADOCK 05000445 L PDR
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2 petitions of Citizens Association for Sound Energy (CASE) and Meddie Gregory. The Board granted the petitions on the strength of nearly identical contentions proffered by each intervenor, which the Board then combined and admitted.
After oral argument of the first appeal, we certified a controlling legal question to the Commission. On the heels !
of the Commission's response to the certified question, and 1
while the appeals were still pending, the intervenors jointly moved the Licensing Board to amsnd their original contentions in order to reflect the substance of the Commission's latest decision. We stayed our hand and the Licensing Board admitted one of the intervenors' new amended contentions in an October 30, 1986, memorandum and order.
The applicants and the staff both filed a second appeal pursuant to 10 C.F.R. S 2.714a, again asserting that the Licensing Board erred in admitting the contention and claiming that the petitions should have been denied.
i For the reasons that follow, we affirm the Licensing l l
Board's admission of the intervenors' amended contention.
This being so, the intervenors have met the condition of 10 C.F.R. S 2.714(b) that participation as a party requires the admission of "at least one contention," and the Licensing Board properly granted the intervention petitions.
Accordingly, the first set of appeals of the applicants and l the staff no longer lies under 10 C.F.R. 5 2.714a(c). That provision permits interlocutory appeals from an order 1
3 granting an intervention petition only on the question of whether the petition "should have been wholly denied." The same section directs that "in]o other appeals from rulings on petitions . . . shall be allowed." Thus, the first appeals of the applicants and the staff are now impermissible interlocutory ones.
I. Procedural History Section 185 of the Atomic Energy Act provides that a construction permit "shall state the earliest and latest dates for the completion of the construction."1 The Act specifies that "[u]nless the construction . . . of the facility is completed by the completion date, the construction permit shall expire, and all rights thereunder be forfeited, unless upon good cause shown, the Commission extends the completion date."2 The agency's regulations parallel the statute and, in addition, state that
[t]he Commission will recognize, among other .
things, developmental problems attributable to the l experimental nature of the facility or fire, flood, explosion, strike, sabotage, domestic I violence, enemy action, an act of the elements, :
and other acts beyond ?.he control of the permit j holdeg, as a basis for e;: tending the completion j date. ]
1 I 42 U.S.C. S 2235 (1982).
2 Ig, 10 C.F.R. S 50.55(b). I l
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4 The events leading to the instant appeals began with j the applicants' January 29, 1986, application for a two-year extension, nunc pro tunc, of their construction permit for Comanche Peak, Unit 1, which by its terms had expired almost six months earlier on August 1, 1985. The applicants labeled their failure to file a timely extension application "an administrative oversight."4 The Commission, however, later termed it "a regrettable and wholly avoidable omission" that represented "the first time in the history of the civilian nuclear power program that the holder of a construction permit allowed its permit to expire without making a timely request for an extension."5 As good cause for the extension, the applicants asserted that
[p]hysical construction on Comanche Peak Unit 1 was essentially completed in early 1985. However, major' efforts to reinspect and reanalyze various structures, systems, and components have been ongoing since the fall of 1984 in order to respond to the questions raised by the NRC Staff's Technical Review Team ("TRT",, by the Board and parties in the ASLB operating license proceedings, and raised by other external sources. The TRT was formed by senior NRC Staff management in March of 1984 to consolidate and carry out the various reviews necessary for the Staff to reach its decision regarding plant licensing. Applicants -
formed the Comanche Peak Response Team and submitted a Program Plan to respond to the TRT's 4
Letter from William G. Council, Executive Vice President, Texas Utilities Generating Company, to Harold R.
Denton, Director, Office of Nuclear Reactor Regulation (January 29, 1986) at 2.
5 CLI-86-4, 23 NRC 113, 115 (1986).
5 questions, the ASLB issues, and the other external sources issues. That Plan is presently being implemented. It is anticipated that such implementation will not 6be complete before the second quarter of 1986 In response to the applicants' construction permit extension application, CASE (an intervenor in the ongoing 1
Comanche Peak operating license proceeding) immediately !
sought various relief from the Commission. First, it requested that the Commission assess civil penalties against the applicants for all construction activities taking place after the permit expired. Next, it asked that the Commission require the applicants to file a new application for a construction permit. Alternatively, CASE requested that the Commission find that the application raised significant hazards considerations and that it order a hearing before a licensing board on the extension amendment.7 l While CASE's request for relief was pending before the Commission, the staff published an environmental assessment concluding that the grant of the construction permit extension would not have a significant impact on the l
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Letter from William G. Council, supra note 4, at 1.
. CASE Request for Imposition of Fine, for Suspension i of Construction Activities, and for a Hearing on Application to Renew Construction Permit (January 31, 1986).
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environment. - Thereafter, the staff determined that the requested construction permit extension involved no significant hazards considerations requiring prior public notice and issued the amendment extending the Comanche Peak Unit 1 construction permit.9 In doing so, the staff stated i
that the applicants' characterization of their need for more ;
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time raised matters that "were not foreseen" by the j applicants and that the applicants had not "been dilatory in pursuing completion of the plant."10 It then concluded "that ' good cause' for the delay has been demonstrated by the applicants so as to warrant an extension of the construction permit for Unit 1."
After the staff granted the construction permit extension, CASE sought from the Commission a stay of the permit amendment.12 A month later, the Commission denied the stay motion as well as CASE's requests that the 0
51 Fed. Reg. 4834 (February 7, 1986).
9 51 Fed. Reg. 5622 (February 14, 1986).
10 Evaluation of Request for Extension of the Construction Permit Completion Date, Comanche Peak Steam Electric Station, Unit No. 1, Texas Utilities Electric Company, et al., Docket No. 50-445 (February 10, 1986) at 1.
11 Id. at 1-2.
CASE Request for Stay of Effectiveness of Construction Permit Extension and for Other Relief (February 11, 1986). l f
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7 applicants be directed to file a new construction permit application.and that the Commission find the extension amendment involved significant hazards considerations.13 The Commission, however, referred CASE's call for enforcement action to the staff. Similarly, it referred CASE's hearing request to the Licensing Board, noting that CASE "is entitled to a hearing on the construction permit' extension" but cautioning that "the scope of the proceeding
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is limited to challenges to [ applicants'] effort to show
' good cause' for the extension."14 I Subsequently, CASE and Meddie Gregory each filed i
petitions to intervene containing the-contentions they sought to litigate.15 over the objections of the applicants and the staff, the Licensing Board granted the intervention petitions after finding that each petition set forth one admissible contention, which the Board then consolidated.
It rejected all of the intervenors' other proffered j 13 CLI-86-4, 23 NRC at 117-124.
14 e 121.
Petition to Intervene of Citizens Association for Sound Energy (April 7, 1986); Petition to Intervene of i Meddie Gregory (April 7, 1986).
16 Special Prehearing Conference-Memorandum and Order I (May 2, 1986) at 6-10, 13. l j
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8 contentions.17 As later characterized by the Commission, the admitted contention alleged that the applicants had )
- l failed to demonstrate good cause for,the extension because ]
they "had a corporate policy to construct the plant in violation of NRC requirements, and that subsequent discovery and efforts to correct these violations caused the delay."18 Both the applicants and staff appealed the Licensing i
Board's grant of the intervention petitions. Specifically, !
they each challenged the Board's admission of the consolidated contention claiming that it lacked a reasonable basis as required by 10 C.F.R. S 2.714 (b) . Further, the applicants argued that the contention was barred by the 1
9 Commission's decision in WPPSS. In that construction permit extension proceeding, the Commission considered the-admissibility of a contention alleging that the applicant had not demonstrated good cause for an extension because plant construction had been delayed'as a result of the applicant's violation of agency regulations. In holding the
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contention inadmissible in WPPSS, the Commission stated that 1
Id,. at 11-12.
10 CLI-86-15, 24 NRC 397, 399 (1986).
Washington Public Power Supply System (WPPSS Nuclear Project Nos. 1 & 2), CLI-82-29, 16 NRC 1221 (1982).
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i' the admission of such a contention in a construction permit extension proceeding . . . !
would be contrary to the overall intent of the Atomic Energy Act and the Commission's regulations. If a permit holder were to construct portions of a facf'.ity in violation of NRC j regulations, when 2 hose violations are detected {
and corrections ordered or voluntarily undertaken, l there is likely to be some delay in the !
construction caused by the revisions. !
Nonetheless, such delay, as with delay caused by )
design changes, must give " good cause" for an j extension. To consider it otherwise could {
discourage permit holders from disclosing and correcting improper construction for fear that corrections would cause delays that would result 4 in a refusal to extend a construction permit, a result obviously inconsistent with the Commission's efforts to ensure the protection of the public health and safety.'0 l l
The applicants claimed this policy-based reasoning created a per se rule that precluded the admitted contention because the need for more time to find and to correct possible construction deficiencies constitutes good cause for an extension, regardless of the underlying cause.
We certified to the Commission the single question whether the CASE / Gregory contention was foreclosed as a matter of law by WPPSS. In its decision responding to the certified question, the Commission rehearsed its view of section 185 of the Atomic Energy Act, the regulations implementing the statute, and agency case law, and it ,
t 0
CLI-82-29, 16 NRC at 1230-31.
21 Memorandum and Order (July 2, 3986).
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10 concluded that there are two independent avenues available for an applicant to establish good cause for a construction permit extension.22 An applicant can either show that there was good cause for the past delay in completing the facility
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or, alternatively, demonstrate that there currently is good cause to permit more time for plant completion.23 The Commission apparently then assumed that the applicants' extension application addressed both avenues and it analyzed, in reverse order, the intervenors' admitted contention as challenging each means of establishing good cause. First, it stated that if the applicants were seeking to show there now is good cause for the extension,.the intervenors' contention was inadequate because it focused only upon past conduct. Second, the Commission indicated !
that if the intervenors' contention was challenging the f applicants' assertion that there was good cause for the past delay in not completing the' facility, the contention was insufficient because it did not also allege that the applicants' regulatory violations were continuing.24 In ,
reaching this result, hcwever, the Commission concluded that the analytical tramework of its precedents had not been i
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22 CLI-86-15, 24 NRC at 400.
23 l Id. at 400-01.
l 24 Id. at 401-02.
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11 formulated to deal with charges of intentional misconduct and its analysis could not be applied to a claim that the I
real cause of an applicant's failure to complete the plant was its "past and still ongoing policy of deliberate violations" of agency regulations because that "would . . .
reward such wrongdoing." Thus, the Commission held "that if there was a corporate policy to speed construction by i i
violating NRC requirements, and that policy was discarded l and repudiated by the permittee, any delays arising from the need to take corrective action would be delays for good cause." 0 It then instructed us to determine the admissibility of the intervenors' contention in accordance i
with this guidance.
Immediately after the Commission's decision on the certified question, the intervenors filed a joint motion with the Licensing Board seeking admission of two new contentions (labeled " amended" contentions) or, in the alternative, the reconsideration of certain contentions that had been denied previously by the Board.27 We withheld any further consideration of the pending appeals until the 25 Id. at 402, 6
Id. at 403.
27 Motion to Admit Amended Contentions or, in the Alternative, for Reconsideration of Certain Previously Denied Contentions (September 30, 1986).
I 12 Licensing Board acted on the intervenors' motion.
Thereafter, on October 30, 1986, the Licensing Board, over the objections of the applicants and the staff, admitted amended contention 2.29 That contention alleged that "[t]he delay of construction of Unit 1 was caused by applicants' intentional conduct, which had no valid purpose and was the result of corporate policies which have not been discarded or repudiated by Applicants."30 As its bases, the intervenors offered a three-page description of the past and present activities of the applicants that they claimed indicated the applicants had an ongoing corporate policy to violate the Commission's licensing requirements that had not been discarded or repudiated. The applicants and the staff each then filed a second appeal challenging the Licensing Board's order admitting the intervenors' amended contention.
II. The Late-Filed Amended Contention The Commission's regulations provide that a contention filed after the first prehearing conference in a proceeding may be admitted by the Licensing Board only upon a favorable balancing of the following five factors:
(i) Good cause, if any, for failure to file on time.
28 Memorandum (October 9, 1986).
' Memorandum and Order (October 30, 1986).
O Id. at 4.
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(ii) The availability of other means whereby the petitioner's interest will be protected. i l
. (iii) The extent to which the petitioner's J participation may reasonably be expected to j assist in developing a s6und record. l I
(iv) The extent to which'the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participationwg1broadentheissuesordelay the proceeding Because the intervenors' amended contention 2 was filed after the initial prehearing conference in the case, the Licensing Board was required at the outset to balance these five factors in determining whether the contention was 2
admissible. Although .it offered several theories suggesting that such balancing was unnecessary in the )
circumstances, the Licensing Board nevertheless considered each of the factors and determined that, on balance, they called for the contention to be admitted. The Board found that the intervenors had good cause for not filing their amended contention on time and that the second, third and fourth factors also favored admission, while only the fifth j l
4 10 C.F.R. S 2.714 (a) (1) , (3).
32 See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-806, 21 NRC 1183, 1190 (1985).
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factor counselled against it.33 On appeal, the applicants first attack this Licensing Board determination.
As the Commission long ago indicated, the five factors of 10 C.F.R. S 2.714 (a) (1) were placed in the regulations to "giv[e] the Licensing Boards broad discretion in the circumstances of individual cases."34 Thus, our review of the Licensing Board's balancing of these factors is necessarily limited to determining whether the Board abused its discretion.35 To demonstrate that the Licensing Board has crossed that line, these applicants have a substantial burden on appeal:
It is not enough for [them] to establish simply that the Licensing Board might justifiably have concluded that the totality of the circumstances bearing upon the five lateness factors tipped the scales in favor of denial of the [ contention). In order to decree that outcome, we must be persuaded that a 58as nable mind could reach no other result.
Memorandum and Order (October 30, 1986) at 5-6.
34 Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant) , CLI-75-4, 1 NRC 273, 275 (1975).
5 Limerick, 21 NRC at 1190; Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 4 1763-64 (1982); Cincinnati Gas and Electric Co. (Wm. H. )'
Zimmer Nuclear Power Station), ALAB-595, 11 NRC 860, 865 (1980); Florida Power & Licht Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-420, 6 NRC 8, 13 (1977), aff'd, CLI-78-12, 7 NRC 939, 946 (1978).
6 Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1171 (1983). See l Harrington v. DeVito, 656 F.2d 264, 269 (7th Cir. 1981), j (Footnote Continued)-
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1 15 They have fallen far short of meeting this burden. Based on our review of the Licensing Board's consideration of the ,
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j five factors of 10 C.F.R. S 2.714 (a) (1) , we cannot conclude, u
as the applicants apparently would have it, that a j reasonable mind could reach no other result than to reject the intervenors' late-filed contention.
The applicants initially question the Licensing Board's good cause determination. In its order admitting the late-filed contention, the Board first reviewed the Commission's decision in CLI-86-15. It concluded that the Commission " struck a new balance" in those construction permit extension proceedings where an applicant sought more time to correct deficiencies and the extension was opposed on the grounds that the applicant had an unrepudiated past and present policy to violate licensing requirements.37 Based on this reading of CLI-86-15, the Board ruled that the Commission's decision provided good cause for the intervenors not having filed their amended contention 4 originally.38 Before us, the applicants argue, with little (Footnote Continued) cert. denied, 455 U.S. 993 (1982) (" abuse of discretion only occurs whe e no reasonable person could take the view
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adopted by the trial court [and] [i]f reasonable persons ,
could differ, no abuse of discretion can be found"). l 37 Memorandum and Order (October 30, 1986) at 2-3.
8 Id. at 5.
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i elaboration, that "[a]t most, CLI-86-15 was a decision which j decided a legal question of first impression," and it cannot
. 1 provide good cause for a late-filed contention because "[t]o j i
hold otherwise would be to invite administrative chaos and f have the potential to flood any ongoing proceeding with late-filed contentions every time the Commission or an l Appeal Board speaks to a legal question." '
The applicants' " parade of horribles" reasoning fails to undercut the Licensing Board's conclusion. Indeed, the applicants' attack on the Board's good cause finding has a hollow ring in light of their own delay, due to "an administrative oversight," in seeking a construction permit extension.40 In any event, the applicants' argument ignores the fact that, as in most cases, the good cause determination here is case specific and based solely upon the impact of CLI-86-15 on this proccoding. Moreover, the applicants' inability to provide us any agency decisions granting or denying late-filed contentions in similar situations seemingly belies their dire predictions of administrative chaos in the future. More important, however, is the fact that the applicants' argument overlooks 1
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39 Brief of the Applicants (November 10, 1986) at ,
11-12.
40 See supra p. 4.
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the significant legal and policy question the Commission l resolved in CLI-86-15 -- the very reason we certified the question to it. Before the Licensing Board, as well as in l
their appellate brief, the intervenors have spelled out, chapter and verse, their view of the agency's prior case law and the reason they could not have anticipated the I
Commission's ruling in CLI-86-15 so as to have filed their amended contention originally. We need not rehearse that case history here. Suffice it to state that the applicants have not challenged the Licensing Board's characterization (with which we agree), that the commission " struck a new balance" in construction permit extension cases.41 Thus, ,
the Commission's announcement of a new pleading standard in CLI-86-15 clearly sets this case apart from those that the applicants label as merely " speak [ing) to a legal question."
In the circumstances, we cannot conclude that the Licensing Board acted unreasonably in ruling that the Commission's i'
decision provided good cause for the intervenors' late-filed i L contention.
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41 We also note that the Commission's new standard for challenging an applicant's assertion of good cause for an 1
, y extension ' sed upon its need to correct deficiencies in the
, facility appi - s to both an applicant's claim that there is good cause for past delays, as well as its claim that there
- now is good cause for granting the extension.
}
18 With respect to the second and fourth factors (i.e.,
the availability of other means to protect intervenors' interest and the extent other parties will represent !
intervenors' interest), the Licensing Board found these l On factors favored admission of the late-filed contention. ,
appeal, the applicants have not challenged these We determinations so we need not consider them further.
note, however, that once the intervenors satisfactorily explained the lateness of their contention, a much lesser i showing on the other four factors is required in order for them to prevail.42 42 St. Lucie, 6 NRC at 22 (1978).
In opposing the admission of the intervenors' amended contentions before the Licensing Board, the staff "[did] not contest Consolidated Intervenors' view that good cause exists for the filing of amended contentions." NRC Staff Response in Opposition to CASE's Motion for Admission of Amended Contention (October 15, 1986) at 3. In light of this staff concession, the lesser showing needed on the other factors once good cause is established, and the narrow appellate review of the Licensing Board's balancing of the factors enumerated in 10 C.F.R. S 2. 714 (a) (1) , we are not surprised that the staff has not vigorously pursued its appeal of this issue. Rather, in a footnote to its brief, the staff merely states that a balancing of the five factors weighs against admission of the intervenors' contentions and it then cites its opposition below to the intervenors' contentions. Brief of the NRC Staff (November 13, 1986) at 5 n.7. As the staff is well aware, a party's failure to brief adequately an issue on appeal "is tantamount to [its]
abandonment." Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 41.3, reconsideration denied, ALAB-359, 4 NRC 619 (1976). Accord Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant),
(Footnote Continued)
19 The Licensing Board determined that the third factor --
the extent intervenors may reasonably be expected to assist in developing a sound record -- also favored admission of I
their contention. In reaching this conclusion, the Board stated that one of the intervenors already had demonstrated its ability to contribute to the technical and nontechnical portions of the proceeding in the related operating license proceeding. It further decided that because the issues in l
the construction permit extension proceeding were not 1 j
technical ones, but issues " involving the interpretation of management conduct concerning willful violations of regulations or repudiation of past conduct, intervenors' lawyers' extensive experience in NRC proceedings is highly relevant."43 The applicants' challenge to the Licensing f Board's treatment of this factor is brief and unadorned.
They argue that the intervenors' tailure to identify their ;
(Footnote Continued) (December 31, 1986) (slip opinion ALAB-856, 24 NRC ,
at 3) ; Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-693, 16 NRC 952, 956-57 (1982). Nor should we have to remind the staff that an issue is not properly briefed by incorporating by reference papers filed with the Licensing Board. See Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-367, 5 NRC 92, 104 n.59 (1977);
Long Island Lighting Co. (Shoreham Nuclear Power we Accordingly, Station),
shall ALAB-156, 6 AEC 831, 832-33 (1973).
treat the staff's attempt to appeal on this issue as abandoned.
43 Memorandum and Order (October 30, 1986) at 6.
l 20 prospective witnesses and testimony as required by agency case law, and the Board's reliance instead on the skills of intervenors' counsel and the ability of one of the intervenors in the Comanche Peak operating license proceeding is "at complete odds" with the Commission's )
decision in Braidwood.44 Although a cursory reading of Braidwood lends some i credence to the applicants' argument, we do not think that decision properly can be read as broadly as the applicants- l l
advocate, so as to compel rejection of the Licensing Board's determination on this factor. In Braidwood, the Commission reviewed, sua sponte, and reversed the Licensing Board's admission of an intervenor's late-filed quality assurance contention in an operating license proceeding. With respect to the third factor, the Commission declared that the I
sponsor of a late-filed contention must demonstrate its special expertise on the subjects it seeks to raise. It stated that, to do this, the intervenor "'should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses and 4
Brief of the Applicants at 13 (citing Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2),
CLI-86-8, 23 NRC 241, 246-47 (1986)).
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21 summarize their proposed testimony.'"45 Rather than judging the intervenors' likely assistance in developing a sound i j
record on this basis, the Licensing Board relied upon the i contribution to the record made by intervenors' counsel in another reactor licensing proceeding -- a practice the Commission criticized, stating: "No principle of law has been called to our attention that allows a court or any i agency to make judgments, positive or negative, about the f i
l merits of a party's case based upon its evaluation of the l I
performance of its counsel in a different proceeding."40 Accordingly, the Commission held that the Licensing Board's j i
determination that the third factor favored admission of the contention was erroneous because the intervenors had failed to provide specifics as to their witnesses and issues and the Board had relied upon counsel's action in another proceeding.47 Here, the Licensing Board was faced with a different f i
As l situation than the Commission dealt with in Braidwood. I I
the Board recognized, the primary issues in the extension !
I proceeding are not technical ones that require specialized 45 CLI-86-8, 23 NRC at 246 (quoting Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2),
ALAB-704, 16 NRC 1725, 1730 (1982)).
46 CLI-86-8, 23 NRC at 247. i Id. ;
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22 technical expertise to litigate. Rather, the ultimate issue is the garden variety one of whether the applicants established good cause for a construc, tion parmit extension.
Unlike the complex quality assurance contention in Braidwood, the good cause issue here, as set out in the intervenors' amended contention, translates into whether the applicants had a past and still ongoing, unrepudiated corporate policy to violate licensing requirements. In this instance, the intervenors had already spelled out the issue they sought to litigate in their amended contention with its attendant bases.48 Additionally, as the Licensing Board again recognized, the nontechnical questions involved in 48 As indicated previously (see supra, note 45), the Commission in Braidwood quoted our statement in Grand Gulf for the proposition that "[w] hen a petitioner addresses this (third) criterion it should set out with as much particularity as possible the precise issues it plans to cover . . . ." 16 NRC at 1730. Grand Gulf involved a late-filed intervention petition, not merely a late-filed contention, as in the present case. Although the five factors of 10 C.F.R. S 2.714 (a) (1) apply in both instances (see 10 C.F.R. S 2.714 (a) (3) ) , this distinction is important insofar as the third factor is concerned. A timely intervention petition need not contain any proffered contentions (see 10 C.F.R. S 2.714 (a) (2)) because the Rules of Practice provide that a supplemental petition shall be filed containing the contentions (see 10 C.F.R. S 2.714 (b) ) .
The Rules do not provide a similar opportunity to f2.le a supplemental petition containing contentions in the case of a late-filed intervention petition that is filed after the first prehearing conference. Consequently, the late-filed petition necessarily must contain the issues it seeks to raise. But in the case of any contention, timely or late-filed, the issue is already identified by the contention itself.
23 this case boil down to whether applicants intentionally violated Commission regulations and whether such conduct was repudiated. Faced with questions of this stripe (where any testimonial evidence likely would come from applicants' employees or contractors), the intervenors could not reasonably be expected to identify their prospective witnesses and testimony at such an early stage of the proceeding before they had an opportunity to conduct discovery. This is in marked contrast to the type of issues involved in Braidwood where, at least in theory, it was possible to identify expert witnesses and the gist of some of their testimony in advance of formal discovery. Indeed, in the present situation, it is unlikely the intervenors 1
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could ever proffer such witnesses' testimony because, even though called by the intervenors, they would be hostile witnesses who, as a practical matter, would have to be cross-examined.49 Here, of course, the intervenors had l already provided the bases for their amended contention, which, in this instance, also referenced documentary material that spelled out the foundation for much of their claim. To demand more would require the intervenors to be 49 See WPPSS, ALAB-747, 18 NRC at 1182-83 (Edles, concurring).
24 clairvoyant about the results of their yet-to-be-conducted discovery.
Furthermore, in these circumstances, we cannot logically fault the Licensing Board's determination that it was " highly relevant" that these intervenors, in contrast to many intervenors who appear in agency proceedings pro se, had experienced counsel to wage their battle. This is so because nontechnical issues like " good cause" and " intent" are matters attorneys routinely confront, while such issues are not standard fare for lay representatives. Similarly, because the intervenors' testimonial case would most likely be made by cross-examination (and that skill is experienced counsel's stock-in-trade), the fact that the intervenors were represented by such counsel markedly increased "[t]he extent to which the (intervenors'] participation may reasonably'be expected to assist in developing a sound record."50 Nor does Braidwood compel a different result.
Although there the Commission spoke broadly in criticizing the Licensing Board's reliance on the participation of intervenors' counsel, it also specifically noted that the parties had not called to its attention any competing 50 l 10 C.F.R. S 2.714 (a) (1) (iii) . For this same reason,
! the applicants' reliance on Houston Lighting and Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC 508, 513 n.14 (1982) is inapposite.
i 25 factors calling for a different result.51 The Commission was not faced with a contention raising a nontechnical issue where the intervenors could make their testimonial case only by cross-examination -- a well-established principle of NRC practice. Therefore, the importance of counsel's participation in that specific context was not before the Commission in Braidwood. For these reasons, we cannot find that the Licensing Board acted unreasonably in concluding that the third factor favored the admission of the intervenors' amended contentions.
Finally, the Licensing Board found that the fifth factor -- the extent the contention will broaden the issues or delay the proceeding -- weighed against admission of the contention "as it almost always does."54 The applicants 51 23 NRC at 247.
52 See Tennessee Valley Authority (Hartsville Nuclear l
Plant, Units IA, 2A, 1B, and 2B), ALAB-463, 7 NRC 341, 356 ;
(1978); Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 389 (1974); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 l AEC 491, 504-05 (1973).
53 Similarly, because of the context in which Braidwood arose, the Commission had no occasion to consider that the Rules of Practice, 10 C.F.R. S 2.713(b), authorize lay representation, and that feature of NRC practice, as licensing boards are well aware, often results in a wide disparity in the quality of evidentiary presentations and cross-examination in agency adjudications.
54 Memorandum and Order (October 30, 1986) at 6.
l i
26 I accept without comment this Licensing Board determination and, in their brief, offer no alternative supporting arguments to buttress the Board's conclusion. On the other hand, in defending the Licensing Board's admission of their ,
late-filed contention, the intervenors suggest that the Board's conclusion on this factor is unduly harsh because any delay would be quite limited. The intervenors' point is valid. As we have held, "[f]or purposes of the fifth factor, the question is whether, by filing late, the (intervenor] has occasioned a potential for delay in the ;
completion of the proceeding that would not have been present had the filing been timely."55 Applying this test, it is difficult to attribute any delay in the completion of the construction permit extension proceeding to the intervenors' late-filed contention in light of the unique procedural posture of the case. And, as the intervenors point out, the extension amendment has already been granted which harms them, not the applicants.56 Further, without deciding the first set of appeals -- a course we have eschewed -- these same unique procedural factors preclude a j definitive answer to whether the late-filed contention
~~ WPPSS, 18 NRC at 1180 (emphasis in the original).
Accord Detroit Edison Co. (Greenwood Energy Center, Units 2 and 3), ALAB-476, 7 NRC 759, 763 n.8 (1978).
56 See St. Lucie, 6 NRC at 23.
27 broadens the issues in the proceeding. Thus, assuming the fifth factor can be considered to weigh against the admission of the contention as the Licensing Board found, it t
does not do so significantly.
In sum, we concur with the Licensing Board's balancing of the five lateness factors. We clearly cannot find, as the review standard dictates we must in order to reverse the Board's balancing of these factors, that a reasonable mind could reach no other conclusion than to reject the contention. On this score, we need only add that, although totally persuaded that the third factor tips in favor of the admission of the late-filed contention, acceptance of the applicants' position that this factor should be placed on ,
I the other side of the ledger would not change our ultimate result. Even when viewed in the light most favorable to the applicants, the analyses of both the third and fifth factors produce extremely close calls. In contrast, as we have seen, the second and fourth factors concededly support the intervenors' side of the controversy. It is equally apparent that the very significant first factor -- the existence of a good reason why the contention was not earlier filed -- also inures to the intervenors' benefit by a wide margin. This being no, there is simply no way in which the third factor could be employed to pin the label of irrationality on the outcome of the Licensing Board's balancing of all five factors.
28 III. The Bases for the Intervenors' Amended Contention A. In their amended contention challenging the applicants' assertion of good cause for a construction permit extension, the intervenors allege, in effect, that the delay in construction of Comanche Peak, Unit 1, was due to the applicants' intentional violation of agency licensing requirements and that such corporate policies have not been discarded and repudiated. In support of this allegation, the intervenors provided a three-page statement of bases.
As further support, the statement referenced over fifty pages of summaries of findings and excerpts from some twenty different survey reports, safety evaluation reports, inspection reports and the like all dealing with Comanche Peak, as well as Licensing Board findings from the Comanche Peak operating license proceeding.
57 The collection of documents the intervenors incorporate by reference was originally filed by one of the intervenors as Appendix B to CASE's initial filing with the Commission in this matter. See supra note 7. In the statement of bases, however, the intervenors state the documents were filed as Appendix B to CASE's Motion for Establishment of an Evidentiary Standard and Request for Board Directed Independent Inspection (February 4, 1985) in the Comanche Peak operating license proceeding. Apparently no confusion as to which documents the intervenors sought to reference resulted from this error, however, because the intervenors attached the packet of documents to their brief opposing the first appeals of the applicants and the staff.
Consequently, this package of documents was readily available to the parties when the intervenors' amended contention was filed. Indeed, neither the applicants nor (Footnote Continued)
}
29 l
)
l In a nutshell, the intervenors' statement of bases for {
the contention maintains that the applicants had a long- )
I
{
standing corporate policy that caused the delay in l
completing the facility. It specifies that the applicants j
deliberately refused to reform their flawed quality f I
i assurance-quality control (QA/QC) program, as well as the l faulty design of the facility. This was in the face of l l
long-standing, consistent criticism of recurring deficient l l
l practices and procedures called to their attention by l The l independent auditors, the NRC and the Licensing Board. I statement next indicates that, despite these criticisms, the l I
applicants have given no valid reason why they refused to change the implementation of their QA/QC program or to address and to correct design deficiencies in the plant.
Consequently, we are told, the applicants have built an unlicensable plant that now must be reinspected, redesigned and reconstructed.
8 The statement of bases then says that the " applicants have never acknowledged that this or any other corporate policy was the cause of the delay or that anythir g in the control of corporate management caused the delay, and thus Applicants have never discarded or (Footnote Continued) the staff mention this labeling error in their briefs and the staff brief even perpetuates the mistake.
O Consolidated Intervenors' Amended Cententions 1 and 2 (September 30, 1986) at 2-3.
1 l
l I
30 I
repudiated the policies that caused the delay."59- Further, it points out that the applicants have left in p' lace their 1
previous corporate policies and the p,ersonnel primarily -J responsible for the delay. Among other examples, it' lists a number of specific individuals who were purportedly j j
responsible for the original. judgments leading to deficient- J conditions and who continue to work en the project.
Similarly, the statement notes the applicants' use of f 1
production quotas for inspectors on the Comanche Peak ']1 Response Team and the continued harassment and intimidation .
of inspectors as indicators that the applicants' faulty policies persist and have not been discarded and repudiated. i Finally, the statement indicates that the applicants need to embrace numerous items, such as-a fully independent response team, in order to establish that they have discarded and repudiated their past delay-causing policies and practices.60 Atter reviewing the intervenors' asserted bases and referenced documents for their_ amended contention, the Licensing Board noted that "we are not authorized to analyze those documents in depth at this stage of the proceeding."61 1
59 I_d.
d at 3.
60 d at 4-5.
'I_d.
61 Memorandum and Order (October 30, 1986) at 8.
i 1
i
1 31 Rather, it stated, "{ alt this stage of the proceeding, we do J not finally determine facts. Our sole job is to pass on whether contentions have provided an adequate basis for inquiring further."62 It then found that the stated bases i for amended contention 2 were "more than adequate."63 )
Before us, the applicants and the staff argue that the l i
Licensing Board erred in concluding that the intervenors' I
contention set forth an adequate. basis. Both agree that the l Commission's decision in CLI-86-15 establishes a two-pronged pleading standard and that the intervenors must provide a l basis for both prongs. First, the intervenors must set {
l f
forth a basis for the proposition that the applicants had a corporate policy to violate agency licensing requirements.
Second, they must state a basis for the proposition that the i applicants have not discarded and repudiated the policy. l
(
4 From this point of agreement, their arguments diverge. As their counsel made clear at oral argument, the applicants claim that the intervenors' asserted bases do not directly support either prong of the standard and that inferences cannot provide the bases for a contention.64 On the other l hand, the staff argues that the intervenors' asserted bases l
62 Id. at 9.
63 Id. at 8.
64 Brief of the Applicants at 15-18; App. Tr. 26.
1 l
I 1
32 i
do not support a reasonable inference that the applicants had a deliberate policy to violate NRC requirements or that the applicants continue to have such a policy.65 The Commission's Rules of Practice provide that an intervenor's contention must set forth "the bases for each contention . .
. with reasonable specificity."66 Although ,
I the Rules do not state a precise equation for determining what is an adequate basis, we have noted that "such judgment must be exercised case-by-case, with the underlying purposes of this requirement in mind," and that the licensing boards exercise "a considerable amount of discretion . . .
in this area."68 Moreover, the purposes of the requirement are well established. The bases requirement is intended to ensure, at the pleading stage, that the agency's adjudicatory process is not invoked for impermissible purposes, such as attacks on statutory requirements or challenges to Commission regulations, and that the issue at [
)
hand is appropriate for litigation in the particular l
l l
65 Brief of NRC Staff at 5-14. l 66 !
10 C.F.R. S 2. 714 (b) .
l 67 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 230 (1986).
68 Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 21 (1974).
\
l 33 proceeding.69 Additionally, the requirement " help [s] assure that other parties are sufficiently put on notice so that they will know at least generally what they will have to defend against or oppose." 0 Thus, the bases requirement is ,
merely a pleading requirement designed to make certain that a proffered issue is sufficiently articulated to provide the 1
other parties with its broad outlines and to provide the l l
Licensing Board with enough information for determining whether the issue is appropriately litigable in the instant I
proceeding. The requirement generally is fulfilled when the f sponsor of an otherwise acceptable contention provides a f I
brief recitation of the' factors underlying the contention or references to documents and texts that provide such reasons. But the fact that a contention complies with the bases requirement of section 2.714 (b) does not mean that the issue is destined to go to hearing -- such a contention is 69 Id. at 20-21. See Florida Power and Licht Co.
(Turkey Point, Units 3 and 4), 4 AEC 787, 787 n.2, 788 (1972).
Peach Bottom, 8 AEC at_20.
See Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 540-41 (1986);
Houston Lighting and Power Co. (Allens Creek Nuclear '
Generating Station, Unit 1), ALAB-590, 11 NRC 542, 547-49 (1980); Mississippi Power and Light Co. (Grand Gulf Nuclear r' Station, I? nits 1 and 2), ALAB-130, 6 AEC 423, 425-26 (1973).
See also Baltimore Gas and Electric Co. (Calvert Cliffs Nuclear' Power Plant, Units 1 and 2), CLI-72-23, 5 AEr? 5, 5-6 (1972).
34 subject to being rejected on the merits prior to trial under the summary disposition provisions of the Rules of 2
Practice. ,
The bases requirement most assuredly "should not be read and construed as establishing secretive and complex technicalities such as in some other areas of the law are associated with special pleading requirements for which some practitioners have an almost superstitious reverence."73 The regulation does not require the detailing of admissible evidence as support for a contention.74 And, in assessing the admissibility of a contention, it is not permissible for 5
a licensing board to reach the merits of the contention.
As we have held repeatedly, "(w]hether the contention ultimately can be proven on the merits is 'not the appropriate inquiry at the contention-admission stage.'" 6
[
Because the Licensing Board exercises a substantial amount of discretion in determining the adequacy of the bases for a contention, our review of its ruling on this 72 S 2.749; Peach Bottom, 8 AEC at 21, See 10 C.F.R. 3 Peach Bottom, 8 AEC at 20.
74 See Allens Creek, 11 NRC at 547-49. l 5 Shearon Harris, 23 NRC at 541.
6 Id. (quoting Philadelphia Electric Co. (Limerick Generat!5g Station, Units 1 and 2) , ALAB-819, 22 NRC 681, 694 (1985)).
35 score is limited to whether the Board abused its discretion. Neither the applicants nor the staff mentions the required review standard in calli,ng for reversal of the Licensing Board's determination. But, in order for us to reverse the lower Board, we must be persuaded that no 8
reasonable person could take the view adopted by it.
Manifestly, that is not the case here.
As amplified by the statement of bases, the intervenors' contention clearly raises'an issue that is a l
fit candidate for resolution in the agency's adjudicatory q J
process and, specifically, this particular proceeding. The ]
intervenors contest the applicants' claim in the construction permit amendment application that there is good cause for an extension of time for the applicants to complete Comanche Peak, Unit 1. As evident from their statement of bases accompanying the contention, the ;
intervenors' challenge is aimed directly at the applicants' past and present conduct and raises factual matters of tne type that are appropriate for resolution by adjudication.
From this focus of the contention, it is equally clear that the intervenors do not seek to invoke the agency's hearing Limerick, ALAB-845, 24 NRC at 231. See Peach Bottom, 8 AEC at 21.
78 See supra note 36 and accompanying text.
36 process for any impermissible purpose. For example, the contention does not seek to challenge any regulatory or statutory provisions.79 Rather, in attacking the i
applicants' assertion of good cause -- the only grounds 80 recognized by section 185 of the Atomic Energy Act and 10 C.F.R. S 50.55 (b) for granting a construction permit extension -- the intervenors' contention seemingly seeks to enforce compliance with the Act and NRC regulations.
Similarly, the intervenors' statement of bases de,nonstrates that the good cause issue is appropriate for resolution in this particular proceeding. Indeed, the intervenors' challenge to the applicants' claim of good cause for an extension can be adjudicated within the NRC only in this construction permit extension amendment proceeding and nowhere else. After referring CASE's hearing request to the Licensing Board for further proceedings, the Commission expressly limited any extension amendment proceeding to challenges of the applicants' claims of good 79 Compare Turkey Point, 4 AEC at 787 n.2, 788 (where intervenors' contentions sought to raise the issue of the effect of an enemy attack on a plant in contravention of 10 C.F.R. S 50.13 and sought to contest the statutory limitation on liability contained in section 170 of the Atomic Energy Act, 42 U.S.C. S 2210 (1982)).
80 42 U.S.C. S 2235 (1982).
l
37 q cause for the extension.81 In narrowly prescribing the bounds of this proceeding, the Commission referenced and )
1 followed its earlier interpretation of section 185 of the j Atomic Energy Act and 10 C.F.R. S 50.55 announced in WPPSS:
"that the scope of a construction permit extension proceeding is limited to direct challenges to the permit i
holder's asserted reasons that show ' good cause'-
l justification for the delay."82 Here, of course,'the i
contention directly attacks the applicants' claim of good cause for the extension, so it is suited for resolution in this extension amendment proceeding.
I l
I l
I 01 Comanche Peak, CLI-b6-4, 23 NRC at 121.
82 CLI-82-29, 16 NRC at 1229.
83 In its brief, the staff also asserts that, in j reality, the intervenors' contention challenges the adequacy ,
of the applicants' corrective action program for Comanche i Peak. The staff claims this is so because in-the intervenors' statement of bases they rely upon alleged inadequacies in that program to demonstrate that the applicants have.not discarded and repudiated their faulty past policies. From this asserted premise, the staff argues that the sufficiency of the applicants' corrective action program is a health and safety issue that can be raised only in an operating license proceeding, not a construction permit proceeding. The short answer to the staff's argument is that the intervenors are bound by the literal terms of their contention. Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant) , ALAB-852, 24 NRC 532, 545 (1986). Any matters contained in the statement of bases for the contention that are outside the intervenors' challenge' ,
to the applicants' claim of good cause are simply extraneous and irrelevant. See also infra p. 50-52. ,
1 l
i l
i 38 1 Moreover, the intervenors level their attack against the applicants' good cause assertion in the manner prescribed by the Commission in CLI-86-15. As the statement of bases in effect asserts (and the intervenors' referenced documents tend to corroborate), the applicants had a policy I to violate agency licensing requirements in building Comanche Peak, connoted by the long history of repeated warnings from the NRC and others of recurring improper practices and procedures that resulted in the need for the applicants to reinspect, redesign and repair the plant. The intervenors' statement also asserts that the applicants' improper policies are still occurring and have not been discarded and repudiated as indicated by the applicants' use of such things as production quotas for inspectors and their continuing harassment and intimidation of inspectors. Thus, it is apparent that the intervenors' contention complies with the Commission's requirements for challenging the applicants' claim of good cause so that it is appropriate for adjudication in this proceeding.
Finally, the asserted bases for the intervenors' contention let the applicants and the staff "know at least generally what they will have to defend against or oppose"
-- the final purpose served by the bases requirement.64 i
08 Peach Bottom, 8 AEC at 20.
l 39' 4 1
Despite the applicants' assertion that they have no idea what they need to defend against,85 the statement of bases reasonably delineates the outline of the intervenors' t
challenge to the applicants' claim of good cause for construction permit extension. Like modern notice pleading in the federal courts, the purpose of the bases requirement is to provide only general notice of the intervenors' claim.86 As the applicants are well aware, they may fill i
any gaps in their knowledge of the intervenors' case.through discovery against the intervenors. Thus, the intervenors' statement of bases in support of amended contention 2 fulfills each of the purposes of the basis requirement and, as the Licensing Board found, the asserted bases are "more than adequate."87 The applicants assert, however, that the statement of bases and its referenced documents are inadequate because they do not present direct evidence that the applicants had a corporate policy to violate agency requirements and that such policy is still in place. They claim that an inference cannot provide the basis for a contention and that a statement of asserted facts from which one infers a 85 App. Tr. at 22, 86 See, e.g., Fed. R. Civ. P. 8.
87 Memorandum and Order (October 30, 1986) at 8.
1
40 conclusion is inadequate. The applicants' position misapprehends the basis requirement of 10 C.F.R. S 2.714 (b) and its underlying purposes. This provision sets forth a pleading requirement, not an evidentiary standard. The Rules of Practice do not mandate the detailing of admissible evidence as support for a contention.88 Nor, obviously, do the Rules proscribe pleading a conclusion drawn from asserted facts, as the applicants contend.89 As should hardly need mention, an inference is merely a deduction based on asserted facts or indications.90 At the initial pleading stage of deternining the admissibility of a contention, the merits of the issue, i.e., its truth or falsity, simply is not the subject of inquiry.91 In like vein, the staff's position that the intervenors' asserted bases do not support a reasonable inference of intentional, unrepudiated, impermissible conduct by the applicants must also fail because, at bottom, its argument requires us to reject the intervenors' position in the face of the 00 See Shearon Harris, ALAB-837, 23 NRC at 540-41; Allens Creek, ALAB-590, 11 NRC at 547-49; Grand Gulf, ALAB-130, 6 AEC at 425-26.
See Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, 551 (1983).
90 See id.; Shearon Harris, 23 NRC at 540-41.
I Shearon Harris, 23 NRC at 541; Limerick, ALAB-819, 22 NRC at 694.
41 countervailing information they assert.. The earliest that inquiry can take place, however, is in deciding motions for summary disposition. We are not persuaded, therefore, that the Licensing Board abused its discretion when it found the bases for the intervenors' contention adequate.
B. Our dissenting colleugue also claims that the Licensing Board erred in admitting the intervenors' amended contention. He arrives at this conclusion, however, using arguments that were neither advanced nor endorsed by any of the parties. By taking a few words from a Commission decision totally out of context, he avers that the Commission reads the basis pleading requirement of 10 C.F.R.
S 2.714 (b) -- a generic rule applicable to all agency construction permit, operating license and amendment ,
proceedings -- to require evidentiary proof when applied to a construction permit amendment proceeding. He then concludes that the intervenors' amended contention fails to i measure up to his novel interpretation of the basis requirement by delving into the record of the ongoing j Comanche Peak oper3 ting license proceeding -- a proceeding not even before us -- and deciding on the merits that the contention is wrong. Alternatively, the dissent asserts, again by taking a few words from a Commission decision out of context, that the Commission has proscribed litigating in a construction permit extension proceeding the intervenors' challenge to the applicants' claim of good cause for an
42 extension. As is shown below, neither of the dissent's arguments can withstand analysis. Both are in the teeth of the Commission's precedents and our o,wn decisions as well as the Rules of Practice. If followed, the dissent's position ,
would, in contravention of the Administrative Procedure Act, arbitrarily deny the intervenors' right under the Atomic Energy Act to a hearing on the extension amendment.
The dissent first alleges that the Commission in WPPSS interpreted the basis requirement of 10 C.F.R. S 2.714(b) to impose, at the initial pleading stage, a unique evidentiary burden of proof on the sponsor of the contention.93 But the dissent's claim finds absolutely no support in the Commission's opinion. Indeed, that decision does not address the basis pleading requirement at all.
In WPPSS, the Commission confronted the question of the proper scope of a construction permit extension amendment 1
proceeding. Faced with petitions for hearings on extension I requests that raised "a broad range of issues concerning the
]
construction and operation of the two units by WPPSS," the l
Commission deviated from its usual procedure of referring the petitions to the Licensing Board for decision "because of the uncertainty the Commission perceives exists as to the 92 16 NRC at 1231.
See infra pp. 53, 55 n.6, 57.
43 proper scope of a construction permit extension proceeding . . . .
"94' Instead, it "dctermined to take up this matter in the first instance in order to clarify for all concerned the nature of the issues that can be asserted in challenging a permit holder's_ extension request."95 The i
Commission then detailed the statutory and regulatory i
provisions on construction permit extensions and stated that
[f] rom these two provisions it is apparent that l the focus of any construction permit extension proceeding is to be whether " good cause" exists for the requested extension. Likewise, this i requirement of " good cause" is the focal point of any consideration of the scope of conggntions that can be admitted at such a proceeding.
Next, after reviewing two appeal board precedents on the scope of an extension proceeding, the Commission reiterated that it was "tak[ing] this opportunity to reexamine the scope of construction permit extension proceedings"' and held that "[w]e believe that the most ' common sense' approach to the interpretation of section 185 and 10 CFR S 50.55 is that the scope of a construction permit extension proceeding is limited to direct challenges to the permit holder's asserted reasons that show ' good cause' 94 16 NRC at 1223.
95 Id.
96 See supra p. 3.
Id. at 1225-26.
16 NRC at 1228.
l i
44 1 justification for the delay."98 It explained its conclusion by stating that
[t]he avenue afforded for the expression of health, safety, and environmental concerns in any pending operating license proceeding, or in the absence of such a proceeding, in a petition under 10 C.F.R. 5 2.206 would be exclusive despite the pendency of a construction permit extension request. This does not mean, however, that no challenge can be made to an application for an extension of a construction permit completion date. In seeking an extension, a permit holder must put forth reasons, founded in fact, that explain why the delay occurred and those reasons must, as a matter of law, be sufficient to sustain a finding of good cause. Certainly, the factual basis for the reasons for delay asserted are always open to question in that the permit holder cannot invent reasons that did not exist.
Moreover, the permit holder cannot misrepresent those reasons upon which it seeks to rely, for, as the Appeal Board in [ Indiana and Michican Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2),
ALAB-129, 6 AEC 414 (1973)] noted, any 4 determination of the sufficiency of a permit holder's reasons for delay "would be influenced by whether they were the sole important reasons for the delay or whether, instead, the delay was in actuality due in significant part to other causes (which perhaps might have indicated that the applicants have been dilatory in the conduct of the construction work and that this factor was the principal explanation for the need for an extension of the completion deadlines)." 6 AEC at 417. An intervenor is thus always free to challenge a request for a permit extension by seeking to prove that, on balance, delay was caused by cirggmstances that do not constitute
" good cause."
98 Id. at 1229.
99 Id. at 1229-30 (footnotes omitted).
45 Turning next to the proffered contentions contained in the hearing petitions, the Commission determined that all but two were "outside the scope of the proceeding."100 With respect to those two, it found one must be dismissed for policy reasons.101 As to the other, which claimed that construction delays had been under the full control of WPPSS management, the Commission concluded that "[t]o the extent
[ petitioner) is seeking to show that WPPSS was both responsible for the delays and that the delays were dilatory and thus without ' good cause' this contention, if properly particularized and supported, would be litigable. See 10 C.F.R. S 2.714."102 The Commission then referred the petition to a Licensing Board to determine if the requirements of 10 C.F.R. S 2.714 hac been met.
The dissent focuses on the above five underlined words to claim that they represent the Commission's new interpretation of the basis pleading requirement of 10 C.F.R. S 2.714. According to the dissent,.that interpretation requires the pleader to meet an evidentiary burden at the initial pleading stage and to submit evidence proving its contention in order to fulfill the basis I 100
. at 1230.
01 M. at 1230-31. See supra pp. 8-9, 102'16 NRC at 1231 (emphasis supplied),
i
(
46 i
i requirement. Contrary to the dissent's assertion, however, the Commission made no such ruling in WPPSS. Rather, the i 1
Commission addressed only the scope of a construction permit l proceeding and, in considering the proffered contentions, i
determined only which contentions fell within the subject matter jurisdiction of such a proceeding. It then found that one contention fell within that jurisdiction and referred the petition containing it to a Licensing Board to determine whether the requirements of 10 C.F.R. S 2.714 had been met. In making that determination, the Commission, 3 I
citing 10 C.F.R. S 2.714, merely used synonyms (i.e.,
" particularized" and " supported") for the regulatory terms
" specificity" and " bas [ils" when it stated that the contention was within the jurisdiction of an extension I proceeding and thus would be litigable if it met the requirements of section 2.714. Accordingly, neither'the context of the WPPSS decision nor the language of the Commission's opinion supports the dissent's claim.103 103 The dissent's claim also disregards our decision in WPPSS, ALAB-722, 17 NRC 546 (1983), handed down on appeal after the Commission referred the hearing petition to the Licensing Board. That Board denied the petition, finding that the contention at issue was inadmissible, and we affirmed the Licensing Board's ultimate ruling. In the course of our discussion concerning the bases of the petitioner's contention, we stated that l
1 l
I [t]his is not to say that the (petitioner's) l (Footnote Continued) i l
47 To ascribe to the Commission the interpretation of WPPSS put forth by the dissent necessarily assumes that the
- Commission, without any mention that it was addressing the basis requirement of section 2.714 (b) , would propound a i significant new standard of pleading reserved exclusively (Footnote Continued) mismanagement claims are accurate. At the pleading stage all that is required is that the contention be specific and have a basis. Whether or not the contention is true is left to ,
litigation on the merits in the licensing )
proceeding. See Houston Lighting and Power Co. J (Allens Creek Nuclear Generating Station, Unit 1), I ALAB-590, 11 NRC 542 (1980).
17 NRC at 551 n.5. Although the dissent decries the basis 4
standard enunciated in Allens Creek, our reliance upon that ;
case in WPPSS necessarily indicates an acceptance of the l same basis requirement for construction permit amendment j extension proceedings as any other licensing or amendment proceeding to which 10 C.F.R. S 2.714(b) applies.
The dissent also claims that our decision in Shearon Harris, 23 NRC at 540-42, is inconsistent with Allens Creek and states that in ALAB-537 we found the contention at issue acceptable solely because the factual averments in the contention derived support from extraneous sources. Our dissenting colleague seriously misapprehends what we held in Shearon Harris. We are confident that a reading of the relevant four paragraph Shearon Harris discussion will dispel any such notion. In this regard, it is also plainly not true, as the dissent states, that we have given the Allens Creek / Grand Gulf line of decisions a new broader interpretation in this case. To the contrary, our dissenting colleague reads those decisions more broadly than they have been before or than is warranted, when he asserts that "[t]hese cases seem to say that it does not matter whether the recitation has any foundation in fact or if the references are totally incredible" and that "{u]nder the Grand Gulf and Allens Creek standard for the basis and specificity requirement, virtually any contention can be made admissible, if well-crafted, with little or no supporting basis." See infra p. 54.
48 )
for construction permit extension cases and then not explain its actions.
Such a claim would have the Commission ignore the fundamental tenet of administrative law that agency actions must be explained.104 Additionally, the dissent's assertion would attribute to the Commission a reading of the regulations that does violence to the plain meaning of section 2.714. That generic rule applies to all construction permit, operating license and amendment proceedings without exception.105 To engraft upon that section, without any textual support, an exception applicable only to construction permit extension amendment proceedings, as the dissent would do in the guise of interpreting the rule, would be arbitrary. It is elementary that the Commission may not interpret its regulations "as
. may meaning something other than what those words . .
I l
f I
/
104 See Brooks v. Atomic Energy Commission, 476 F.2d ;
924, 926-27 (D.C. Cir. 1973). l 105 See 10 C.F.R. S 2.700.
2 49 rationally convey."106 Unlike the dissent, we are unwilling to attribute such arbitrary action to the Commission.107 j 106 GUARD v. NRC, 753 F.2d 1144, 1146 (D.C. Cir. 1985).
Our dissenting colleague opines that his j construction of 10 C.F.R. S 2.714(b) is permissible because this is merely a construction permit extension amendment proceeding and, before the construction permit was issued, there already was a hearing on tha health,. safety and environmental consequences of plant operation.- He then equates an extension proceeding to a request to reopen the record and opines he can raise the pleading threshold to ensure the extension proceeding would be productive. But, f as previously indicated, section 2.714(b) is a generic practice rule that contains no hint'of textual support for his novel interpretation. Moreover, the dissent's reasoning overlooks that the good cause requirement for an extension is mandated by statute and does not necessarily have any connection to health, safety or environmental issues.
Similarly, it should hardly need mention that regardless of the type of proceeding involved, there is a significant difference in the function of the pleading requirement to initiate the adjudicatory process and the requirements to
~
reopen a record after a hearing already has been conducted.
107 Our dissenting colleague's application of his new interpretation of the basis requirement illustrates why such a standard has littic to commend it. For example, he asserts that the basis for the intervenors'- amended H contention is insufficient to prove that the applicants have not discarded and repudiated their purported improper corporate policy that the intervenors claim caused the deley in completing.the nuclear plant. According to the dissent, just the opposite is true because the record of the Comanche Peak operating license proceeding shows it is the
' Indisputable fact that substantial changes have been made- l in the applicants' management structure and in their senior management personnel." (See infra p. 62.) As " proof" of that view, the dissent then relies upon several hearsay
. documents that are not even part of the evidentiary record of that proceeding, which proceeding, in any event, is not even before us. Unlike our colleague, we think any decision ,
on the issues in controversy.should await resolution-of a motion for summary disposition or a hearing on the merits (Footnote Continued) f
l l 50 l08 The reliance in the dissent upon Seabrook is equally misplaced. Once again, our colleague has seized upon the Commission's employment of a particul,ar word -- here'"show"
-- to support his thesis that, without expressly acknowledging it has done so or explaining its action, the Commission has taken an avowedly generic rule and give.n it different operative effects in different types of amendment proceedings. 09 What he apparently has overlooked is that.
"show" has more than one definition. While he would have it that the term is invariably used as a synonym of " prove," it can also be a substitute for " allege" or " plead."110 Alternatively, the dissent asserts that the intervenors' contention should be. rejected because it raises issues-that the Commission has prohibited from being litigated in construction permit extension proceedings.
Specifically, the dissent claims that in WPPSS the Commission ruled that "[a] contention cannot be litigated in a construction permit extension proceeding when an operating (Footnote Continued) and that it.is improper to decide the truth of the matter on the initial pleadings or.the administrative record of- ;
another proceeding that is not even before us.
108 _Public Service Co. of New Hampshire (Seabrook Station, Unit 2), CLI-84-6, 19 NRC 975, 978 (1984).
09 See infra p. 56'n.6.
O See Webster's Ninth New Collegiate Dictionary 1091 (1984).
1 i
51 I l
license proceeding is pending in which_the issue can be raised."lll It then argues that because the intervenors' contention, in part, challenges the efficacy of the applicants' corrective action program, the intervenors' challenge can be raised only in the pending Comanche Peak operating license proceeding. The dissent's argument, however, is again premised on an out-of-context statement from the WPPSS decision. The remark at issue was made in the context of the Commission's observation regarding two appeal board decisions indicating that "the purpose of a construction permit extension proceeding is not to engage in 1
)
an unbridled inquiry into the safety and environmental aspects of reactor construction and operation . . ., an observation in which we wholeheartedly concur."112 Thus, properly read, it is only health, safety and environmental issues that cannot be raised in a construction permit extension proceeding. As the Commission in WPPSS held, "the scope of a construction permit extension proceeding is limited to direct challenges to the permit holder's asserted reasons that show ' good cause' justification for the delay" and it emphasized that "[a]n intervenor is thus always free 11 CLI-82-29, 16 NRC at 1227. See infra p. 64.
l 112 16 NRC at 1227. i l
)
i 52 to challenge a request for a permit extension by seeking to prove that, on balance, delay was caused by circumstances .
that do not constitute ' good cause.'",113 Thus, to read ,
WPPSS to preclude the intervenors' challenge to the applicants' claim of good cause for a construction permit I l
extension is inconsistent with that Commission opinion. 1 Moreover, such a reading also would be inconsistent with the j i
intervenors' statutory right under section 185 of the Atomic l 4
Energy Act to e hearing on the good cause issue.
l Accordingly, the Licensing Board's grant of the intervention petitions is affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD
- 0. b$~e C. J n SKoemaker Secre ary to the Appeal Board The dissenting opinion of Dr. Johnson follows, pp.
53-64, infra.
113 Id. at 1229-30.
4 114 42 U.S.C. S 2235 (1982). See Brooks v. AEC, 476 F.2d at 927-28.
I 1
I l
4 i
53 Dr. Johnson, dissenting:
In my opinion the Licensing Board erred in admitting the intervenors' amended contention., By doing so, it unnecessarily allows the proceeding to'go forward on matters that are already in litigation (or that could have been raised by the intervenors) in the ongoing operating license 4 proceeding. I would reverse the Licensing Board, with instructions to deny the admission of the contention and terminate this construction permit extension proceeding.1 Admission of the amended contention is wrong for two i fundamental reasons. First, the contention fails to meet the basis requirement of our Rules of Practice for construction permit extension cases as those rules have been interpreted by the Commission.2 Second, it raises issues of the kind the Commission has proscribed for construction permit extension cases. l 1
In this regard, I believe the Commission determined in CLI-86-15 that the intervenors' original contention was inadmissible. As pointed out by the Commission, "this particular contention [the original one) is barred by our WPPSS decision because, as currently worded, it focuses only on the permittee's [i.e., the applicants'] past conduct."
24 NRC at 402. In any event, I find the original contention subsumed by the amended contention. Hence, denial of the amended contention would end the proceeding.
2 As noted earlier (see supra p. 32), *0 C.F.R.
S 2.714(b) requires that to be acceptable for litigation, a contention must have its basis set forth with reasonable specificity.
54 A. 1. In deciding to affirm the Licensing Board's admission of the contention, my colleagues conclude that it-meets the basis and specificity requirements-of our Rules of Practice. Citing the Grand Gulf and Allens Creek line of esses, they. find that those cases require only that the contention be accompanied by "a brief recitation of the' factors underlying'the contention or. references to documents and texts that provide such reasons. 3 These cases seem to I say that it does not matter whether the recitation has any
~ foundation in fact or if the references are totally incredible; all the recitation or references need to do is ;
i give an applicant and other affected parties' notice of what they will have to defend against and not-seek to invoke the agency's hearing process for any impermissible purpose.
Thus, under this Grand Gulf and Allens Creek standard for the basis and specificity requirement,. virtually any contention can be made admissible, if well-crafted, with little or no supporting basis. This, to me, is unreasonable, particularly in the context of a construction permit extension proceeding where the Commission has emphasized following a " common sense" approach.4 a
3 See supra p. 33.
4 WPPSS, 16 NRC at 1229.
55 Be that as it may, I do not find Grand Gulf /Allens Creek controlling for determining the admissibility of contentions in a construction permit extension case. For, as I read the Commission's intent in decisions I find more pertinent, something more than mere allegations or references to documents is required to justify a permit extension hearing: there must be supporting evidence that shows that the allegations have a basis in law or in fact.6 I
The majority points to the footnote reference to 1 Allens Creek in the FPPSS case, ALAB-722, 17 NRC at 551 n.5, I to indicate that an nppeal board had applied the Allens Creek basis standard to permit extension proceedings and that the case is thun controlling here (see supra p. 46 note 103). I do not agree. First, this position ignores the Commission's indications to the contrary. See infra note 6.
Second, the majority reads more into WPPSS than is there.
The Appeal Board there, after all, evaluated the documents l submitted by the petitioners, at the Commission's direction l (see infra note 7), to see if there was any basis for the I proffered contention, and found that there was. As for footnote 5, its wording shows that the Board cited Allens Creek solely for the principle that, at the preliminary stage, the issue for determination is not the ultimate truth of a contention. See 11 NRC at 549. I have no quarrel with that principle. But it simply does not address the standard to be applied for the admission of a contention.
6 For example, when the Commission considered the contentions submitted in WPPSS, it stated:
To the extent [the intervenor) is seeking to show that WFPSS was both responsible for the delays and that the delays were dilatory and thus without
" good cause" this contention, if properly particularized and supported, would be litigable.
See 10 C.F.R. S 2.714.
16 NRC at 1231 (emphasis added). And in Public Service Co.
(Footnote Continued)
.- .. ... .. . . . . . . . . . _ . . . . . . . = . .
56 Moreover, there is no statutory or regulatory requirement that the very liberal threshold that has. evolved for admitting contentions at the outs,et of a construction permit or operating license proceeding be likewise applied to permit extension cases.7 To the contrary, there is good reason for requiring that a more stringent standard be met (Footnote Continued) of New Hampshire (Seabrook Station, Unit 2), CLI-84-6, 19 NRC 975, 978 (1984), the Commission explained (emphasis added) :
To be admissible, a contention must either ,
challenge applicants' reason for delay or show that other reasons, not constituting good cause, are the principal basis for the delay. . . . .
. . . . In other words, the proponent of the contention must articulate some basis to show that the applicant is responsible for the delay and has acted intentionally and without a valid business purpose.
The Commission reiterated these last words in this very proceeding in response to the question we certified to it.
See CLI-86-15, 24 NRC at 401. It is significant the Commission repeatedly used the word "show" - "to make apparent or clear by evidence, to prove." . Black's Law Dictionary 1237 (5th ed. 1979).
I would observe that the broad interpretation the majority now gives to Allens Creck/ Grand Gulf is not fully consistent with past Appeal Board practice. For example in l Shearon Harris cited by the majority (see supra p. 33 note 71), the Board noted, among other things, the accuracy of q the factors recited in the contention and pointed to other !
"well-known circumstances" in ordering the-contention's l admission. 23 NRC at 541. Had the Appeal Board there taken j the majority's view here of the basis and speciticity requirement, there would have been no. occasion for the Board to rely on those factors in arriving at its decision. See also supra p. 55 note 6.
e
1 57 ) !
I J
before subjecting an application for a construction permit extension to a hearing. In every such case, a hearing has j) already been held on the health, safety,.and environmental.
consequences of plant construction, and there is the ,
j likelihood that a hearing on plant operation either is under ]
I '
way or will take place. As I view the matter, therefore, an attempt to obtain a hearing simply to litigate the extension !
1 of the permit completion date is akin to a request to reopen I a record. In the circumstances, it makes practical sense to )
I demand a more stringent test for admission of-a contention, )
to provide a reasonable expectation that an ensuing hearing .
I would be productive. An appropriate test for permit i extension cases might be the one we set forth in Diablo-Canyon for reopening the record in an operating license proceeding, which the Commission endorsed in Waterford:
At a minimum . .. the new material in support of a motion to reopen must be set forth with a degree of particularity in excess of the basis and specificity requirements contained in 10 C.F.R. ,
- 2. 714 (b) for admissible contentions. Such I supporting information must be more than mere allegations; it must be tantamount to evidence
. . . [and] possess the attributes set forth in 10 C.F.R. 2.743(c) defining admissible evidence for adjudicatory proceedings. Specifically, the new evidence supporting the material, and reliable."gotion must be " relevant, 0
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-775, 19 NRC 1361, 1366-67, (footnote omitted), aff'd sub nom. San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff'd, 789 (Footnote Continued) i
58 I see no difficulty in applying pleading criteria for satisfying the basis requirement of 10 C.F.R. S 2.714(b) in permit extension cases that differ from those applied in construction permit or operating license cases. Although section 2.714(b) is applicable to all types of Commission proceedings, it merely establishes a requirement that an
)
intervenor set out the basis for each contention with reasonable specificity. It does not elaborate on how the requirement is to be met. Our particularization of the pleading or evidentiary requirements necessary to satisfy section 2.714(b) has evolved through case interpretation, essentially in the context of construction permit or operating license cases. I see no necessity to apply that case law automatically to the very different circumstances of permit extension proceedings.9 (Footnoto Continued)
F.2d 26 (D.C. Cir. 1986) (en banc) ; Louisiana Power & Light ]
Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 j NRC 1, 5 (1986). I l
' See, e.g., Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-853, 24 NRC 711, 715 ;
(1986), reversed on other grounds, CLI-87-2, 25 NRC l (April 9, 1987) (requirement in 10 C.F.R. S 50.33(g) tor the filing of state and local emergency plans as a condition for l issuance of operating licenses is applied differently to licenses for fuel loading and precriticality testing as l opposed to licenses for full-power operation even though "section 50.33(g) does not distinguish between full-power licenses and licenses for operations at less than full power"); Cf. Long Island Lighting Co. (Shoreham Nuclear (Footnote Continued)
1 59
- 2. I do not believe that the intervenors have "atisfied s
the basis requirement appropriate for permit To be admissible here,'the contention must extension cases.
rest on some bases that show that the applicants had a corporate policy to violate NRC regulations and that this I find that the policy is continuing and unrepudiated.
intervenors' submission demonstrates neither.
As the basis for the first part of their contention, the intervenors direct our attention to some 50 pages of material from the operating licence proceeding that purportedly support their position that there was a deliberate corporate policy to violate Commission f
regulations.10 Relying on this, they argue that applicants j
\
ignored criticism of their quality assurance and quality that the control (QA/QC) system over a long period of time, !
that the plant plant is not properly designed, and, hence, However, contrary to the intervenors' is not licensable.11 allegations, none of these documents provides, either (Footnote Continued) CLI-86-13, 24 NRC 22, 32 (1986)
Power Station, Unit 1),
(specific emergency planning measures not explicitly mentioned in the regulations may nevertheless be required for a " reasonable assurance" finding).
10 No specific citations See supra p. 28 and note 57.intervenors to particular statements in are provided'by the these documents.
Intervenors' Amended Contentions 1 and 2 (September 30, 1986) at 2, 3.
60 directly or by inference, any indication of a corporate policy to violate Commission regulations. The documents reference cases of failure to reform portions of the QA program and note other QA shortcomings. On the other hand, ,
they also include instances of the applicants' response to inadequacies. What they do not show is that the QA failures were the result of a deliberate corporate policy te violate regulations.
The intervenors' basis for the second aspect of their contention consists, first, of their statements to the effect that the policy has not been discarded or repudiated, and that the personnel responsible for this policy are still in their same positions. This is followed by a series of criticisms of the Comanche Peak Response Team Program (CPRT), and a recitation of intervenors' proposals for that program's revision.
It is undeniable that the applicants have not issued a statement in which they explicitly discard and repudiate any past corporate policy to violate NRC regulations. This is not surprising. Unless the applicants were first to admit that they had a deliberate policy to violate regulations (which here they do not do), it is unlikely that they would
61 (or could) explicitly discard and repudiate such a policy.12 1
In any event,.the intervenors do not assert that the j I
applicants had announced a policy that they have failed to discard. Rather, their position is that the documents they cite inferentially support the existence of such a continuing policy.
Those documents, selectively chosen, however, tell only 1
part of the story. A broader look at the record of.the Comanche Peak operating license proceeding clearly shows that the applicants have taken steps to correct the deficiencies in plant construction.13 Particularly 12 This would be the regulatory equivalent of trying to answer the question "Have you stopped beating your wife." I do not believe this is what the' Commission had in mind when it spoke of discarding and repudiating a policy. In discussing this issue in CLI-86-15,-the Commission said (24 NRC at 401) :
For example, if a utility were to adopt a corporate policy to construct the plant in willful violation of NRC requirements, but were then to reverse that policy, remove the i wrongdoers, and embark on a new effort to construct a safe plant in full compliance with NRC requirements, we could find that the i
new policy constituted " good-cause" for an extension. We will not penalize a current management for the mistakes of its predecessors in this regard.
13 My colleagues criticize my reliance on material from the operating license proceeding. But much_of the material intervenors tendered in support of the contention is part of the record of that proceeding and even includes, as my colleagues acknowledge, " Licensing Board findings from the (Footnote Continued)
62 significant is the indisputable fact that substantial-changes have been made in the applicants' management structure and in their senior managem,ent personnel.14 In particular, an Executive Vice-President, a Vice-President, and the three senior personnel-in the QA/QC area, all with extensive nuclear experience, have recently been hired from' l the outside to serve in a revised organizational structure for the construction of Comanche Peak. In addition, the applicants have expressed dissatisfaction with the state of affairs at Comanche Peak, and their determination to put the plant right, outlining the new effort designed to bring the plant.into compliance with NRC regulations. In summary,.
(Footnote Continued)
Comanche Peak operating license proceeding." See supra p.
- 28. Moreover, as the staff points out, in concluding that there was an adequate basis for the contention "the 1.icensing Board was relying upon information known to it from the operating license proceeding in an attempt to; remedy the deficiencies in the Consolidated Intervenors' statement of basis." NRC Staff Brief in Support of Appeal at 9-10.
14 See " Applicants' Current Management Views and Management Plan for Resolution of All Issues" (June 28, 1985) (henceforth, Management Views).
15 Id. at 9-11, Attachment (Updated Section 13.1 of CPSES FSAR, Amendment 55). See also NUREG-0797, Comanche Peak Safety Evaluation Report Supplement 12 (October 1985) at 13-3, where the NRC staff evaluates the revised organization and finds it acceptable.
16 Management Views at 7, 12, 15, 16-17, 18-21. See also NUREG-0797, Supplement 13 (May 1986) at 5-1, where the NRC staff concludes that the CPRT "provides an overall (Footnote Continued)
63 the applicants have initiated "a new effort to construct a safe plant in full compliance with NRC requirements" and thus satisfy the Commission's test for determining good cause for permit extension.17 B. Apart from the lack of an adequate basis to support it, the contention should be rejected for another reason.
The intervenors' amended contention is so broadly worded as to encompass every possible deficiency and rule violation associated with the design and construction of the plant.
Its few particularized aspects, however, deal almost exclusively with the CPRT and associated efforts to seek out and correct construction and quality assurance deficiencies I at the plant.18 Thus, fairly read, the contention and (Footnote Continued) structure for addressing all existing construction and J design issues and any future such issues that may be !
identified from further evaluation." In this document the i' staff also evaluates, and finds acceptable under 10 C.F.R. Part 50 Appendix B, the CPRT quality assurance plan. Id. at 4-1 to 4-7.
17 i See suora at p. 61 note 13. The Commission did not I condition its aasis for a good cause determination on the j degree of success that a new management pursuing a new '
policy and mounting a new effort might have in completing a plant that was safe and in compliance with the regulations.
And rightly so. For under the existing two-stage licensing process, the evaluation of the as-built plant and the applicants' ability to operate it are health and safety issues that may be considered at the time of the application for an operating license.
18 Intervenors' Amended Contentions 1 and 2 at 4, 5.
See also App. Tr. 48, 78.
64 supporting documents indicate _that the intervenors' real; quarrel is with the mechanism the applicants have set up.to correct deficiencies - 'not with whether good cause exists for the permit extension. Issues involving the CPRT clearly fall within the ambit of the pending operating license proceeding, and the. Licensing Board has already'made it i known that these hearings will focus on the CPRT. It is clear to me that that is the proper forum for litigating the' concerns encompassed by'intervenors' contention. As the Commission has said: "A contention cannot be litigated in a construction permit extension proceeding when~an operating license proceeding is pending in which the issue can be raised."20 The gist of the intervenors' amended contention
-- challenging the efficacy of applicants' organization and methods to correct design and construction' deficiencies at Comanche Peak -- is precisely the type-of matter that should be litigated in the operating license case.
i 1' LBP-85-32, 22 NRC 434 (1985). See also LBP-85-39, 22 NRC 755 (1985).
O See WPPSS, 16 NRC at 1227 (Commission approval of j '
our earlier obse'rvation "that the purpose of a construction permit extension proceeding is not to engage in an unbridled inquiry into the safety and environmental aspects of reactor j construction and operation"). See also.id. at 1231 note 4L.
l 1
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