ML20235Y800
| ML20235Y800 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/13/1987 |
| From: | Dignan T ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#387-4081 ALAB-868, CPA, NUDOCS 8707270059 | |
| Download: ML20235Y800 (13) | |
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DOLVETED UWC l
Dated: July 13, 1987
'87 JUL 16 P1 :44 UNITED STATES OF AMERICA before the
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NUCLEAR REGULATORY COMMISSION i
r i
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In the Matter of
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TEXAS UTILITIES ELECTRIC
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Docket No. 50-445-CPA COMPANY, ET AL
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'(Comanche Peak Steam Electric )
l Station, Unit 1)
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l APPLICANTS' PETITION FOR REVIEW OF ALAB-868 Now come the Appl.icants, pursuant to 10 CFR 2.786 and otherwise according to law,1 and petition. the Commission for review of the decision of the Appeal Board issued on June 30, 1987, which affirmed a decision of the Atomic Safety and Licensing Board granting a hearing in the above captioned proceeding.
Texas Utilities Electric Company, (Comanche Peak Steam Electric Station, Unit 1), ALAB-868,
_ NRC (June 30, 1987) (hereafter "ALAB-868" and cited to the siip opinion).
As contemplated by 10 CFR 2.786(b) (2)', the Applicants set forth the following:
(i) Summary of the decision of which review is sought ALAB-868 addressed the appeals by the Staff and Applicants taken with respect to the second of two 1 Florida Power & Licht Comoany (St. Lucie Plant, Unit No. 2), CLI-78-12, 7 NRC 939 (1978).
8707270059 870713 FDR ADOCK 05000445 PDR gg 0
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1 decisions of the Licensing Board in this proceeding.
The Licensing Board had granted two petitions to intervene and requests for hearing with respect to the application of the Applicants herein for an extension of the time for the completion of construction of the subject facility.2 Briefly described, the procedural history of this matter is as follows.
On May 2,
- 1986, the Licensing Board admitted for litigation a
single contention in this proceeding.
Both the Applicants and the Staff appealed from this decision under 10 CFR 2.714a.
After hearing oral argument with respect to this first appeal, the Appeal Board certified to this Commission what the Appeal Board describes in ALAB-868 as "a
controlling legal question."
ALAB-868 at 2.
On September 19, 1986, this Commission issued a decision with respect to the referral.
Texas 2 ALAB-868 addressed, on the merits, the appeals taken from the second of the two Licensing Board Decisions and upheld the admission of the contention admitted thereby.
Having done so, the Appeal Board then held that the first appeals (taken from the earlier Licensing Board decision admitting an original contention) no longer lay under 10 CFR 2.714a(c) and had become " impermissible interlocutory i
ones".
ALAB-868 at 2-3.
In one sense this action with respect to the first appeals has little meaning because the interveners had modified, and thus presumably withdrawn, 1
the first admitted contention. See Motion to Admit Amended Contentions or, in the Alternative, for Reconsideration of Certain Previously Denied._ contentions (Sept. 30, 1986) at 2.
However this treatment of the first appeals did have an effect upon the decision with respect to the second appeals because it, erroneously, enabled the Appeal Board to give weight otherwise unwarranted to the side of the interveners under the fifth of the so-called "five factors" that are weighed in considering a late filed contention under 10 CFR
- 2. 714 (a) (1).
See infra at 7.
2 l
.___-____m_
4 Utilities Electric Co.
(Comanche Peak Steam Electric.
Station, Unit 1), CLI-86-15, 24 NRC (Sept. 19, 1986).
In essence, the Commission held that the contention which
- had been admitted
- was, under appropriate
- analysis, inadmissible.
In so holding this Commission stated:
l "We believe that the appropriate balance is-struck by holding that if there was a
~
corporate policy to speed construction by violating NRC requirements, and that policy was discarded and repudiated by the permittee, any delays arising from the need-to take corrective action would be delays for ' good cause.
Thus, if a permittee is seeking' a CP extension because of delays associated with the need to correct safety
- problems, a contention, worded like this one, that is directed only at past conduct would not be sufficient, even if true, to defeat' the extension." CLI-86-15, slip Op.
j at 9.
l Directly 'after so stating, this Commission remanded the matter to the Appeal Board with a direction to " determine the admissibility of the contention in accord with this guidance." CLI-86-15, Slip Op. at 9.3 Before the Appeal Board could act, the Interveners submitted to the Licensing Board what they characterized as a modification of the. contention admitted previously.
The Appeal Board then stayed its hand in order to permit the Licensing Board to deal-with this latest filing.
On October 30, 1986, the Licensing Board issued a decision in which it held (1) that 3In fact, because of its decision to address the appeals of the second Licensing Board Decision first, see,
- suora, n.2, the Appeal Board never did carry out the direction given it by the Commission in CLI-86-15.
3 I
[.;
l the ' new contentions - satisfied the "five factors" test for late-filed contentions and (2) that one.of the contentions was accompanied by a sufficient statement of basis and was 1
admissable for litigation Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Unit 1),
4
.LBP-86-36A, 24 NRC 575 -(1986).
The contention admitted, denominated " Amended Contention 2," reads as follows:
"The 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."
The basis upon which the contention was admitted was a.
number of documents referenced by the interveners in an appendix to a prior pleading submitted to this Commission and a statement purporting, in essence, to summarize these documents.
It was asserted that the documents supported the Interveners' argument that it could be inferred from a course of allegedly revealed conduct that the Applicants had a policy to violate Commission regulations and that:
" Applicants have nevir acknowledged that this or any other corporate policy was the cause of this delay or that anything in the control of corporate management caused the delay, and thus the Applicants have never discarded or repudiated the policies that caused the delay."4 As stated by the dissenting Appeal Board Member, and not challenged by the majority:
4 Consolidated Interveners' Amended Contentions 1 and 2 (Sept. 30, 1987) at 2, quoted in ALAB-868 at 29-30.
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"[C)ontrary to the interveners' allegations, none of these documents provides, either 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 to violate regulations."
ALAB-868 at 59-60 (Johnson, J. dissenting).
Over the strong dissent of Dr. Johnson the Appeal Board, in ALAB-868, affirmed the Licensing Board's admission of the " amended" contention.
With respect to the " late-filed contention" criteria, 10 CFR 2.714(a),
the Appeal Board held that the first, third and fifth criteria all weighed in favor of the intervenor.
ALAB-868 at 27.
In reaching this result the Appeal Board held that this commission's decision in CLI-86-15 was, in and of itself, sufficient to supply the " good cause for failure to file on time" as required by the "first factor,"
ALAB-868 at 15-18, apparently on the basis that CLI-86-15 constituted an
" announcement of a new pleading standard." Id. at 17.
With respect to the " third factor," the Appeal Board held that the Licensing Board had correctly held that the skills of the interveners' counsel and the fact that one of the interveners had demonstrated an ability to contribute to the record in the related operating license proceeding was sufficient to satisfy the " third factor."
In so doing, the 5
O Appeal Board held, ALAB-868 at 19-25, that the following pronouncements of this Commission in Commonwealth Edison
- h. (Braidwood Nuclear Power Station, Units 1 and 2), cLI-86-8, 23 NRC ~241 (1986) were inapplicable to the facts of l
this case:
I Our case law establishes both the importance of this third factor in the evaluation of late filed contentions and the necessity of the moving party to i
demonstrate that it has special expertise on the subjects which it seeks to raise.
[ citation omitted]
The Appeal Board has said:
"When a petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony."
CLI-86-8 at 246.
In our view, the Licensing Board's finding in favor of the Interveners, based upon the contribution of their attorneys to the development of the record, was erroneous.
No principal of law has been called to our attention that allows a court or an agency to make judgments, positive or negative, about the merits of a party's case based upon its evaluation of the performance of its counsel in a different proceeding.
E.
at 246-47.
It would be difficult to read into (Washincton Public Power Sucolv System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167 (1983)]
or into the prior NRC j
decisions cited, strong support even for j
the proposition that a
party's prior participation in NRC licensing proceedings is a weighty factor in weighing a request for late intervention; but there is no basis in that decision for a finding that counsel's participation in other 6
l
b proceedings can be taken into account.
- Ish, at 247.
With respect to the "fifth factor" the Appeal Board did not i
accept the Licensing Board's conclusion that this factor q
weighed against'the-interveners.
Rather, the Appeal Board held that in the " unique procedural posture of the case" the Appeal Board could attribute little or no delay in completion of the proceeding to the admission of the
" amended" contention.
However, both the " unique procedural posture" of the case and the conclusion.of no incremental delay derive from, and depend upon, the Appeal Board's failure to implement the Commissions directive in CLI-86-15 (see n.
3, supra),
which
- failure, together with the necessarily implicit but dubious assumption-that the
" original" contention would remain to be litigated, is the sine SMA D2n of the "no incremental delay" conclusion.
The Appeal Board's conclusion on the fifth factor, therefore, cannot withstand analysis.
The Appeal Board also upheld the Licensing Board on the question of whether a sufficient basis had been stated for the " amended" contention.
ALAB-868 at 32-52.
In so doing, the Appeal Board reduced the basis requirement in the Commission's regulations to being the equivalent of " modern notice pleading in the federal courts."
ALAB-868 at 39.5 5It is difficult to see
- how, if the Commission intended the initial pleading in its adjudicatory licensing proceedings to set forth no more than what is required under the standard of " notice pleading" in the Federal 7
d It further rejected the Applicants' argument that where, as
- here, the viability of a
contention depended upon an allegation of evil motive, the basis for this extraordinary motive allegation could not be supplied by inference.
ALAB-868 at 39-41.
In sum, the holding of ALAB-868 means that hereafter, in any case in which additional time is required to complete inspection, construction or repair to achieve regulatory compliance (a state of affairs that has occurred in virtually every nuclear power project in
' history at one time or another), merely alleging in the j
vaguest terms the historical existence of a corporate policy to violate regulations together with documents sufficient to demonstrate that from the perfect perspective of hindsight things were done imperfectly, will be enough to require a hearing in a construction permit extension case.
The result is that the narrow exception set forth in CLI-86-15 has now engulfed the rule, and, unless ALAB-868 is reversed hearings will now be available "on demand" in construction permit extension cases to anyone who recites the magic formula.
1 Rules of Civil Procedure, the conce, of stating a basis found its way into the Commission's Aules of Practice at all.
Yet the basis requirement has been in the rules of practice of this agency and its predecessor since promulgation of the modern Rules of Practice in 1972.
Although that rewrite of the rules adopted many features of the Federal Rules of Civil Procedure, the draftsmen did not as found in the adopt the equivalent of notice pleading Federal Rules. f_ed.
R.
Civ.
P.
8.
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(ii) Statement where the matters raised in the petition were previously raised before the Appeal Board All of the matters as to which review is sought were raised by the Applicants in their brief or oral argument before the Appeal Board.
See Brief of Permittees (Nov. 10, 1987) at 10-18, L (Jan. 29, 1987) at 4-27.
(iii) Statement as to why the decision is erroneous The decision of the Appeal Board is in error as to its interpretation of 10 CFR 2.714(a) in that it has wrongly held that an appellate decision in this agency deciding a question of first impression inso facto provides good cause for the late filing of a contention; and that the rules laid down by the Commission in the Braidwood decision (CLI-86-8) are to be limited to the facts of that case and given no general applicability.
In addition the Appeal Board has wrongly utilized a unique procedural setting created by itself to distort the weight to be accorded the "fifth factor."
The Appeal Board erred in its resolution of the basis issue by equating the basis requirement of 10 CFR 2.714(a) to " notice pleading" in the Federal Courts; by i
holding that a basis for so much of the contention involved as requires an allegation of evil motive can be supplied by inference; and by laying down a rule which virtually 1
i assures that a hearing must be held whenever requested in every construction permit extension proceeding.
9
Z (iv) Why Commission review should ba exercised The decision at bar has virtually written the basis requirement out of the Rules of Practice.
In addition it
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guarantees that a hearing will be held whenever requested in all future construction permit extension proceedings.
It has read out of NRC jurisprudence the recently set'forth rules of law as to late intervention stated in CLI-86-8 and
- assured' their confinement to the particular facts in that case..
- And, in addition, it will permit any appellate decision by this Commission or an Appeal Board involving a legal question of first impression to be the unrebuttable gravamen of a finding of good cause for admission of a late-filed contention.
All of these matters raise important-questions of law or policy which should be-reviewed by the Commission.
Respectfully submitted, TEXAS UTILITIES ELECTRIC COMPANY For the Owners of CPSES f
rW Thoffia's f,. )III>fgnan, Jr.
R. K. Gad William S.
Eageling Ropes & Gray 225 Frantr.lin Street Boston, MA 02110 (617) 423-6100 Attorneys for Texas Utilities Electric Comoany 10 l
l
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a.
- 00LEEit, wm CERTIFICATE OF SERVICE-
~87 JM.16 P1 :44 I,._ Thomas G. Dignan,~Jr.',~hereby certify that'on July 13',
- 1987, I
rn.
I made service of " Applicants' Petition for Rev4ewtof ALAB-868" by 5 U l0 h i
mailing copies.thereof, postage prepaid, to:
Lando W.
- Zech, Jr., Chairman Thomas M. Robarts U.S. Nuclear' Regulatory U.C. Nuclear Regulatory.
Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Frederick M. Bernthal Kenneth M. Carr U.S. Nuclear; Regulatory U.S.~ Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Alan S.
Rosenthal, Chairman Thomas S. Moore
. Administrative Judge.
Administrative Judge
~ Atomic Safety and. Licensing Atomic Safety and Licensing Appeal Panel.
Appeal Pr.nel' U.S. Nuclear Regulatory U.S.-Nuclear Regulatory Commission' Commission Washington, D.C.
20555 Washington D.C.
20555 i
William S. Parler, Esquire Howard A. Wilber General Counsel Administrative Judge Office of General Counsel Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Panel Commission U.S. Nuclear Regulatory 1
Washington, D.C.
20555 Commission i
Washington, D.C.
20555 I
Peter B.
Bloch, Esquire Mr. James E. Cummins J
Chairman Resident Inspector.
Administrative Judge Comanche Peak S.E.S.
Atomic Safety and Licensing c/o U.S.
Nuclear Regulatory Board _
Commission U.S. Nuclear Regulatory P.O. Box 38 Commission Glen Rose, Texas 76043 Washington, D.C.
20555
i Dr. Walter H.
Jordan Ms. Billie Pirner Garde
. Administrative Judge GAP-Midwest Office 881 W. Outer Drive 104 E. Wisconsin Ave.
-B Oak Ridge,. Tennessee 37830 Appleton, WI 54911-4897 i
Chairman Chairman
' Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission.
Commission Washington, D.C.
20555 Washington, D.C.
20555 Lawrence J.
Chandler, Esquire Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S.
Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission Washington, D.C.
20555 Renea Hicks, Esquire Ellen Ginsberg,. Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel P.O.
Box 12548, Capitol Station U.S. Nuclear Regulatory Commission Austin, Texas 78711 Washington, D.C.
20555 Anthony Roisman, Esquire Mr. Lanny A.
Sinkin Suite 600 Christic Institute 1401 New York Avenue, N.W.
1324 North Capitol Street Washington, D.C.
20005 Washington, D.C.
20002 Dr. Kenneth A. McCollom Mr. Robert D. Martin Administrative Judge Re gional Administrator 1107 West Knapp Region IV Stillwater, Oklahoma 74075 U.S. Nuclear. Regulatory Commission Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 Elizabeth B.
Johnson Geary S. Mizunc, Esq.
Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P.O.
Box X, Building 3500 U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 Washington, D.C.
20555 i
I f
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h
Nancy H. Williams 2121 N. California Blvd.
Suite 390 Walnut Creek, CA 94596 s
'ThottfssG/)(nan, Jr.
l 1
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