ML20127G944
| ML20127G944 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 01/19/1993 |
| From: | Schmutz T NEWMAN & HOLTZINGER, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#193-13551 92-668-01-CPA, 92-668-1-CPA, CPA, NUDOCS 9301220125 | |
| Download: ML20127G944 (28) | |
Text
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te l e UNITED STATES OF AMERICA NUCLEAR REGULATORY COHHISSION BEFORE THE COMMISSION 93 jul 19 P.3 54 1 o;
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In the Ha".ter of )
) Docket No. 50-446-CPA TEEAS UTILITIES ELECTRIC COMPANY ) ASLBP No. 92-668-01-CPA
) (Construction Permit (Comancho Peak Steam Electric ) Amendment)
Station, Unit 2) )
)
TU ELECTRIC'S BRIEF IN OPPOSITION TO PETITIONERS' APPEAL OF ATOHIC SAFETY AND LICENSING BOARD HEHORANDUM AND ORDER On December 15, 1992, the Atomic Safety and Licensing Board (" Licensing Board" or " Board") issued a Memorandum and Order, which denied Petitioners the right to intervene and terminated the construction permit amendment proceeding. As explained by the Licensing Board, that result was mandated for two reasons. First, the Board found that Petitioners Joseph Macktal and S.M.A. Hasan did not demonstrate the requisite interest for standing and thus their petitinn and request for a hearing was denied. Second, as to Petitioners B. Irene Orr and D.I. Orr, the Board found that they failed to provide any supporting basis for their contention and thus their petitior,was denied.
Only Petitioners B. Irene Orr and D.I. Orr appeal the Board's Memorandum and Order. In their brief on appeal, Petitioners do little more than make conclusory assertions that the Board somehow erred in holding that they failed to provide b
0 9301220125 PDR 930119 ADOCK 05000446 )
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2-any basis for their contention. This is then followed by an irrelevant discussion of various settlement agreements executed some four years ago.
As 7U Electric will show, the Board's Memorandum and Order was unquestionably correct. The Board applied the appropriate legal standard, thoughtfully considered the purported bases advanced by Petitioners in support of their contention, and correctly concluded that the Petitioners had wholly failed to demonst rat e that a " genuine dispute exists with the applicant on a material issue of law or fact." 10 C.F.R. S 2.714 (b) (2 ) fiii)
(1992). Accordingly, the Board's Memorandum and Order sl.ould be affirmed.
BACKGROUND On December 19, 1974, the Atomic Energy Commission issued Permit No. CPPD-126 for the Comanche Peak Steam Electric Station ("CPSES") Unit 1 with an expiration date of August 1, 1981 1/ The expiration date for Unit 3 construction was subsequently extended to August 1, 1985 2/ On January 28, 1986, during a routine document review, the NRC discovered that the permit had expired without TU Electric having first sought an extension.
1/ 39 Fed. Reg. 44796 (Dec. 27, 1974).
1/ 47 Fed, Reg. 19835 (May 7, 1982).
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l By letter dated January 29, 1986 as supplemented on :
i February 4, 1986, TU Electric requested an extension until August 1, 1988, stating that its failure to file a timely extension request was an administrativo oversight. 1/
TU Electric also stated that good cause supported the request because the delay was attributable to
- major efforts to reinspect and reanalyze various structures, systems, and components (that) have been ongoing since the fall of 1984 in. order to respond to questions raised by the NRC Staff's Technical Review Team [and other sources)." 1/ The request also noted that TU Electric had formed the Comanche Peak Response Team and submitted a Program Plan to respond to questions raised by the NRC Staff. On :
February 10, 1986, the NRC granted the extension concluding that TU Electric had demonstrated good cause. 5/
I On January 31, 1986, Citizens Association for Sound Energy (" CASE"), an intervenor in the ongoing operating license proceeding, filed a motion with the Commission requesting, among--
, other things, a hearing regarding TU Electric's construction permit extension request. After a series of proceedings before 1/ 51 Fed. Reg. 5622 (Feb. 14, 1986). -
1/ TXX-4680, Letter to H.R. Denton (NRC) from W.G. Counsil (TU Electric) at 1, dated Jan. 29, 1986; Texas Utilities Electric Co,'(Comanche-Peak Steam Electric Station, Unit 1), '
CLI-86-4, 23 NRC 113, 115-(1986), aff'd, Citizens Association for Sound Enerav-v, NRCi 821 F.2d 725 (D.C. Cir.
1987).
1/ Letter to W.G. Counsil (TU Electric) from V.S. Noonan-(NRC) .
dated Feb. 10, 1986; 51 Fed. Reg,-at 5622.
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the Conmission, CASE's request for a hearing was referred to the Licensing Board. On October 30, 1986, the Licensing Board admitted CASE's Amended Contention 2 which provided as-follows: 1/
The delay of construction of Unit I 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, j Based on a settlement between TU Electric, CASE and the NRC-Staff, on July 13, 1988, the Licensing Board dismissed both the operating license proceeding and the construction perndt extension proceeding. 1/
Subsequently, on November 18, 1988, .in response to TU Electric's requests, the NRC again issued orders extending the latest construction completion dates for both Units 1 and 2. -In finding that good cause supported the extension for Unit 1, the l
NRC found that the delay was due to the intensive program of review and reins-sction of the design and construction of Unit 1 and Unit 2 undertaken Mi TU Electric. 8/ Noting that the i/ Texas Utilities' Electric Co. (Comanche Peak Steam' Electric Station, Unit 1),.LBP-86-36A, 24 NRC 575, 580 (1986), aff'd, ALAB-868, 27 NRC 912 (1987),
2/ Texas' Utilities-Electric Co., (Comanche Peak Steam Electric Starion, Units 1 and 2),-LEP-88-18B, 28 NRC 103 (1988),
1/ 53 Fed. Reg. 47888 (Nov. 28, 1988).
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program had been considerably expanded during the-prior two years, the NRC concluded: 1/
This expansion has resulted in a complex ;
program of design and hardware-validation, design-hardware. reconciliation,-QA/QC activities, and third-party review. The Staff believes the Applicants have been vssiduous in their efforts to detect and correct actual and potential violation of IUU:
regulations and complete construction of the-plant. The Staff, therefore, concludes-that the Applicants have demonstrated that thete is good cause for the delay which warrants an extension of the constructica permit for Unit No. 1.
Similarly, in regard to Unit 2, the NRC found good cause for the extension. 10/ The NRC's evaluation for Unit 2, like its Unit 1 evaluation, specifically noted the expanded remedial programs undertaken by TU Electric. The-NRC found that: 11/
the temporary direction of resources since mid-1985 to activities under-the remedial program to Unit No. 1 rather than to Unit No. 2, as well as the temporary suspension of a Unit No. 2 construction for about one year-beginning in April 1988 (which-will allow the 1 1/ Evaluation of the P.equest for Extension of latest Construction Permit Completion Date, Comanche Peak-Steam-
-Electric Station, Unit:No. 1, Texas Utilities Electric Co.,;
Docket No. 50-445 (Nov. 18, 1988) (Attached to Letter to-r W.G. Counsil (TU Electric) from C.I. Grimes (NRC) dated l Nov. 18,-- - 19 8 8 ) .
11/ 53 Fed. Reg, at 47888.
11/ Evaluation of Request for Extension of the Latest Construction Permit Completion Date, Comanche Peak Steam l- Electric Station, Unit No.~2,~ Texas Utilities Electric Co.
(Nov. 18,:1988) (Attached to Letter to'W.G. Counsil (TU Electric) from C.I. Grimes (NRC) dated Nov. 18, 1988).
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Applicants time to make~a more complete determination of any modifications that may be required for Unit No. 2 based upon'the knowledge they gain-from the reinspection and corrective action program applied to Unit-No. 1) have caused delays which have contributed to the need for extending the latest construction completion date for Unit No. 2. >
In granting the extension, the NRC concluded that these factors demonstrated good cause for the delay.and warranted an extension of the construction permit for' Unit 2 12/
Construction of Unit 1 was successfully completed and a low power operating license issued in Februan/ 8, 1990 11/
On April 16, 1990, the Commission approved the issuance of a-full power license which was subsequently issued on April 17, 1990 11/ In doing so, the NRC made the following findings: 15/
B. Construction of the Comanche Peak Steam, Electric Station, Unit No. 1 (the facility) has been substantially completed in conformity with Construction Permit No. CPPR-126 and the application,
-12 /_ Id. at 2; 53 Fed. Reg. at 47888.
11/ 55 Fed. Reg.'5525 (Feb. 15, 1990),
13/ 55 Fed. Reg. 17329 (Apr. 24, 1990).
15/ Texas Utilities Electric Co.,-Docket No, 50-445, comanche Peak Steam Electric. Station, Unit No. 1, Facility Operating License No. NPF-87 -( Apr. 17, 1990) (Attached to Letter to W.G. Counsil (TU Electric)-from C.I. Grimes (NRC) dated-Apr. 17, 1990).
as amended, the provisions of the (Atomic Energy) Act and the regulations of the Commission; D. There is reasonable assurance:
(i) that the activities authorized by this operating license can be conducted without endangering the health and safety of the public, and (ii) that such activities will be conducted in compliance with the Commission's T regulations set forth in 10 CFR Chapter I. . . .
G. The issuance of the license will not be inimical to the common defense and security or to the health and safety of the public.
On February 3, 1992, TU Electric requested an extension of the Unit 2 construction permit. In its request, TU Electric explained that the NRC had previously granted an extension of the Unit 2 construction permit predicated, in part, upon an estimated ,
one year suspension in significant construction activities allowing TU Electric to concentrate its resources on completion of Unit 1. Because the completion of construction and start-up of Unit 1 took longer than originally estimated, the suspension of significant construction activities for Unit 2 also lasted <
longer than originally estimated. TU Electric noted that the NRC previously found good cause for the prior extension necessitated in part by the suspension of significant construction activities for Unit 2, and urged the NRC to find that the additional
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8-suspension period constituted good cause for the_ current c
request. 15/
On June 23, 1992, the NRC Staff determined that the requested extension posed no significant environmental impact. 17/ This was followed on July 28, 1992 by the NRC
-Staff finding that TU Electric had demonstrated good cause and granted the requested extension. 13/
On July 27, 1992, B. Irene Orr, D.I. Orr, Joseph Macktal, Jr and S.M.A. Hasan filed a joint Petition To Intervene and Request for Hearing regarding TU Electric's' construction permit extension application. On August 6, 1992, TU Electric filed its answer and opposed the Petition on.the grounds-that, (1) neither the Orrs, Mr. Macktal nor Mr. Hasan had' established standing to intervene and, (2) the petition failed to-identify
'the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene." 10 C.F.R. S 2.714 (a) (2 ) (1992).
On September 11, 1992, the Licensing Board issued an order providing Petitioners the opportunity to supplement their lff; TXX-92041, Letter to NRC from W.J. Cahill, Jr. (TU Electric)'
dated Feb. 3, 1992, 12f 57 Fed. Reg. 28885 (June 29, 1992).
11/ 57 Fed. Reg. 34323 lAug. 4, 1992).
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Petition and to set forth their proposed contentions,-if any,_as well as~the supporting basis for any-contentions. 11/
On October 5, 1992, Petitioners filed their supplement 20/ setting.forth the following proposed contention: 21]
The delay of construction of Unit 2 was.
caused by Applicant's intentional conduct, which had no valid purpose and was the result of corporate policies which have not been discarded or repudiated by Applicant.
Petitioners' Supplement also contained and referenced various documents which Petitioners claimed were sufficient to establish a supporting basis for their contention.
Both TU Electric and the NRC Staff filed answers to the Supplement opposing the admission of the proposed contention.-
On December 15, 1992, the Licensing Board. issued its Memorandum and Order rejecting the Petitioners' proposed contention, denying the petition to intervene, and terminating the proceeding, 11/
JJi/ Memorandum and Order (Setting-Pleading Schedule), Docket No. 50-446-CPA (Sept. 11, 1990).
20/- Supplement To Petition-To Intervene And Request For_ Hearing Of B. Irene Orr, D.I. Orr, Joseph J.-Macktal, Jr., and
.S.M.A. Hasan (Oct. 5, 1992) (" Petitioners' Supplement")..
21/ Id. at 1.
,11/ Memorandum and Order (Ruling On Intervention Petitions and Terminating Proceeding), LBP-92-37, .NRC (Dec. 15, 1992).
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ARGUMENT I. Petitioners Fail To Demonstrate That The Board Erred In Any Respect In Rejecting Their Proposed Contention Petitioners have a particularly heavy burden in seeking to overturn a Licensing Board's decision rejecting a proposed contention and thus denying a motion to intervene.
The Licensing Board exercises a substantial amount of discretion in determining the adequacy of the basis for a contention, . . .
our review of its ruling on this score is limited to whether the Board abused its discretion , . . (I]n order for (the Commission) to reverse the lower Board, [it) must be persuaded that no reasonable person would take the view adopted by it.
Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 931 (1987) See also Public Service Comnany of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-918, 29 NRC 473, 482 (1989) ("To establish that the Licensing Board transgressed (the abuse of discretion) standard, the intervenors have a heavy burden in appeal").
Petitioners
- Brief on appeal fails by a wide margin to demonstrate that the Licensing Board abused its discretion in rejecting their proposed contention. Indeed, Petitioners' Brief is so confused and misguided that it is essentially worthless for assessing the Licensing Board's Memorandum and Order. Throughout their Brief, Petitioners make conclusory and unsubstantiated assertions without discussion, analysis, or citation to any legal authority. Further, the substantive grounds offered in support
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of their appeal ar7 nearly incomprehensible. For-the most'part, Petitioners' Brief consists of a discussion of various events occurring four or more years ago having nothing whatsoever lto do with the current construction permit extension requested by TU Electric.
Notwithstanding its lack of any coherent analytical framework, Petitioners' Brief appears to challenge the Board's Memorandum and Order on four narrow grounds. 21/ First, they criticize the Licensing Board's refusal to comb through the:
massive record compiled in the previous and long concluded CPA-1 docket, as well as several hundred pages of discovery responses dating from the mid-1980s, to determine whether anything in that-record or those responses might provide a basis to support Petitioners' contention. Second, they claim that the-Licensing Board " misconstrued" the " evidence' they submitted, and-misapplied the legal standard applicable to their claim that TU Electric failed to repudiate some as yet bnidentified but 21/- It is noteworthy thatTPetitioners do not challenge the:
Licensing - Board's rejection of the majority- of the naterials
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proffered in support:of their contention. Thus, _ Petitioners do not contest-the Board's rejection of.their supporting information.regarding_a " pattern of continuing violations" which consisted of a printout of_ Notice of' Violations issued-to TU Electric. Nor do they contest the Board's rejection-of their proffered information regarding' incorrect stiffness values or harassmentiand intimidation of whistleblowers.
Rather, the only basis for their appealErelates to the Board's refusal to allow Petitioners to incorporate by.
reference the.CPA-1 administrative record and:various-pleadings onothat record and the Board's rejection of their arguments regarding a_ number of settlement agreements.
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nevertheless improper _ corporate policy.-24/ Third, Petitioners claim that the Board erred by refusing them the opportunity to engage in discovery in an effort to obtain some colorable supporting basis for their proposed contention. 25/
r Finally, Petitioners argue that the Board erred in holding that they failed to demonstrate that a genuine dispute exists with TU Electric on a material issue-of law or fact as required by, 10 C.F.R. 5 2.714 (b) (2 ) (iii) .
In what follows, TU Electric will first discuss the legal standard applicable to contentions submitted in a construction permit extension proceeding. TU Electric will then address.-the arguments advanced by Petitioners and show that in each case they are wrong -- wrong as to the facts and wrong as to the law. As will be shown, the Board's Memorandum and Order faithfully adhered to the legal standards prescribed by this Commission, carefully and fully considered the bases offered-by Petitioners, and correctly concluded that Petitioners: failed to meet the requirements of 10 C.F.R. S 2.714, thus mandating that their contention be rejected and their petition to interveneibe denied.
2_4_/ - Petitioners' Brief.at 4-7.
25/ As to this third argument,. Petitioners' claim that since they:were not entitled ~to discovery, they were entitled to
-an " adverse inference" that their proposed discovery.would
.have provided'a supporting basis for_their proposed contention. Petitioners' Brief at 9.
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A. The Board Applied The Correct The Legal Standard l Applicable To Contentions Submitted In A l Construction Permit Extension Proceeding l l
In rendering their decision, the Board correctly I
applied the Commission's strict pleading requirements for the admission of contentions which were properly applied by the Licensing Board. Section 2.714(b) of the Commission's rules provides, in pertinent part, as follows: 21/
(2) Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide the following information with respect to each contention:
(i) A brief explanation of the bases of the contention.
(ii) A concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing, together with references to those specific sources and documents of which-the petitioner is aware and on which the netitioner intends to rely to establish those facts or expert opinion.
(iii) Sufficient information . . .
to show that a genuine dispute exists with the applicant on a material issue of law or fact.
This showing must include references to the specific portions of the application . . . that the 2f/ 10 C.F.R. 5 2.714 was modified effective September 10, 1989 in order to " ensure that the resources of all parties are focused on real rather than imaginary issues." 51 Fed. Reg.
at 24365, 24366 (July 3, 1986); 54 Fed. Reg. 33168, 33179
.(Aug. 11, 1989).
l i
i petitioner disputes and the supporting reasons for each dispute . . . .
In meeting the requirements of 10 C.F.R. S 2.714(b), a petitioner must do far more than simply make vague, indefinite or conclusory allegations. See Louisiana Enercy Services, L.P.,
(Claiborne Enrichment Center), LBP-91-41, 34 NRC 332, 335, 357, 359 (1991). Rather, the petitioner has the burden of presenting well-supported bases having a clear nexus to the contention sought to be admitted. See 10 C.F.R. S 2.714 (b) (2) (ii) (1992).
The information presented must be " sufficient to indicate that a genuine issue of material fact or law exists." Lono Island +
Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-35, 34 NRC 163, 168 (199]); 10 C.F.R. S 2.714 (b) (2) (iii) (1992).
Underscoring the importance of adequately supported contentions, the Commission held that a Licensing Board is not permitted to infer the basis for a contention. See Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), CLI-91-12, 34 NRC 149, 155-56 (1991). Nor are they required to review documents or other information in an effort to find some basis for a contention not offered by the petitioner. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-3, 29 NRC 234, 240-41 (1989). In short, if the basis for a contention is not presented to the Board with sufficient clarity and specificity, the contention must be rejected. Arizona Public Service Co., 34 NRC at 155-56.
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Finally,-the contention and its supporting bases must lue within the scope of issues established by the Commission.
Arizona Public Service Co. (Palo Verde Nuclear-Generating Station Units 1, 2 and 3), LBP-91-19, 33 NRC 397, 400 (1991) rev'd in part, CLI-91-12, 34 NRC 149 (1991). In the context of a construction permit extension proceeding, "a contention having nothing whatsoever to do with the causes of delay or the permit holder's justifications for an extension cannot Ime litigated . . . .
Thus, in order to be admissible, a. contention must directly challenge "the permit holder's asserted reasons that show ' good cause' justification for the delay." Public Service Co. of New Hampshire (Seabrook Station, Unit 2),
CLI-84-6, 19 NRC 975, 973 (1984) cuotino Washinoton Public Power Sunn1v System, 16 NRC at 1230. Moreover, in those. unique cases where the applicant claims good cause for delay due to the need to take corrective actions, a contention-must allege that:
(1) the corrective actions and thus'the delay-were due to a corporate-policy of violating NRC requirements, and-(2) the corporate pclicy-has not been discarded or.
repudiated and is ongoing.
Texas Utilities Electric Co. (Comanche-Peak. Steam Electric Station,-Unit 1), CLI-86-15, 24 NRC 397, 401-03 (1986). Failure to provide an adequate supporting basis for either of these two-prongs is a sufficient. ground for rejection of'the contention.
Id.
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Previously these standards were applied by the board in reviewing Petitioners' proposed contention. In its review, the Board concluded that Petitioners had failed to demonstrate any genuine issues of law or facts and their contentions should be rejected.
B. The Board Correctly Found That Petitioners Failed To Provide Any Supporting Bases For Their Contention That Delay Was Due To A Corporate Policy Of Violating NRC Requirements As Petitioners candidly admit in their Brief as well as in their previous pleadings to the Licensing Board, the entire basis for their contention that the delay in construction of Unit 2 was due to a corporate policy of violating NRC requirements, was their mere reference to the massive record compiled in the long-concluded CPA-1 proceeding which they attempted to " incorporate by reference." 22/ Before the Licensing Board, the Petitioners made no attempt to specify-the precise portions of the record upon which they relied, nor did they explain how that record supported their proposed contention.
The Board properly rejected Petitioners bare reliance on the CPA-1 administrative record: 2ff Commission practice is clear that petitioners may not simply incorporate massive documents by reference as the basis for its contention.
Petitioners are expected to clearly identify ll/ See Petitioners' Brief at 3, 7.
11/ Memorandum and Order at 19-20.
t the matters in_which'they intend toLrely with reference to a specific point. :To do otherwise does not serve the purposes of_a pleading. - _P_ublic Service Company of New Hamoshire, et al. (Seabrook Station, Units 1 and 2) 29 NRC 234, 240-41 (1989). This requirement.is incorporated in 10 CFR 2.714 (1) (ii) which Petitioners fail to meet with their request.
In their Brief on Appeal, Petitioners contend that the Board's rejection of their reference to the CPA-1 record and to two pleadings in that record amounting to some 200-pages, was in error. Indeed, Petitioners make the incredible assertion that i' was the Licensing Board's obligation -- not Petitioners' - "to ,
review these two docume'.s to determine whether they contained sufficient factual information to satisfy the requirements of 2.714 (b) (2 ) (i) - (iii) . . . ." 29/
As this Commission has previously held, it is wholly Petitioner's obligation to provide the. specific facts supporting their contention -- an obligation which can never be met by the mere reference to an= entire administrative record or to lengthy.
pleadings in that record. Public Service Company of New Hamoshire-(Seabrook Station Units 1 and 2),-CLI-89-3, 29 NRC 234, 240-41-(1989). The mandatory requirements of 10 C.F.R. S 2.714 are intended to provide the applicant sufficient notice of the-facts supporting the contention.in order to allow the; preparation of a response and more importantly.to allow'the Licensing Board to make'a reasoncd judgment as to whether.a dispute of material ~
29/ Petitioners' Brief at 8.
fact exists. General Public Utilities Nuclear Corp., (Three-Mile Island Nuclear Station, Unit 1), LBP-86-10, 23 NRC 283, 285 (1986). Neither of these goals are served by the vague reference to a prior administrative record or lengthy pleadings in that record with the bald assertion that somewhere in that record one might find a contention's factual support.
In short, the Board was clearly correct in rejecting Petitioners' reliance on the CPA-1 administrative record.
Because that CPA-1 record constituted the entire basis for their contention that the delay in construction of Unit 2 was due to an improper corporate policy, the Board was also clearly correct in rejecting their contention.
C. The Board Properly Rejected Petitioners' Evidence of Non-Repudiation Petitioners' argument that the Licensing Board misconstrued their " evidence" of non-repudiation and misapplied the applicable legal standard is frivolous. 30,/ Specifically, Petitioners contend that various settlement agreements between TU Electric and former CPSES workers as well as settlement agreements with the former CPSES minority owners were submitted pniv to-demonstrate that TU Electric had not repudiated some 30/ Petitioners' argument regarding non-repudiation of a corporate policy is somewhat difficult to-understand because Petitioners never state what the " policy" is, nor do they provide evidence of the corporate policy which allegedly led to the delay of Unit 2.
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unidentified corporate policy leadinr to the delay.of construction of Unit 2. 21/ The Board-rejected these agreements because they had no relationship to the delay of construction of Unit 2. Petitioner claim the Board's-rejection or these agreements was in error because evidence of non-repudiation is not required to have any nexus to the delay in construction, i.e., one's ongoing policy must have been the cause -
of the previous delay.
Petitioners' argument is based on a patent misunderstanding of the legal standard applicable to contentions in a construction permit proceeding and flatly misrepresents the Board's Memorandum and Order. First, Commission precedent makes clear that in order to establish "non-repudiation" a would-be intervenor-must provide support for the proposition that there is' an ongoinq corporate policy of violating NRC requirements which led to the delay in construction. Texas Utilities Electric Co.
(Comanche Peak Steam Electric Station,. Unit 1), CLI-86-15, 24 NRC-397, 402-03 (1986). Simply to allege-(or even prove)~that there 11/ Petitioners also claim that six Notices of Violation' occurring between May, 1990 and March, 1992 demonstrates-that"T.U. Electric has-not repudiated a corporate policy to violate NRC requirements. (Petitioners' Brief at: 4. )
However, Petitioners do not challenge the Board's-rejection of these Notices. 'As the Commission has stated: "[i]n any project even remotely approaching'in magnitude and complexity :the erection of. a nuclear power plant, - there -
inevitably will be some construction defects tied'to quality assurance lapses."- Union Electri~c Company (Callaway Plant, Unit 1),_ ALAB-740, 18 NRC 343,-346,(1982)'. It is therefore-obvious that the Board was correct'in finding that these Notices provide no support'for Petitioners
- claim.
exists an ongoing corporate policy, but one having nothing to do with the delay in construction, clearly does not meet this test.
Rather, there must be shown a cirect relationship between the ongoing pclicy and the delay in construction. Thus, Petitioners' argument that there is no requirement ato draw a nexus" between past delay and an ongoing corporate policy which caused that delay is plainly wrong. -
Moreover, it is disingenuous at best to claim that the Board's Memorandum and Order did not address the question ot
\ whether the various settlement agreements provided evidence af an ongoing corporate policy which led to the delay of consuc cion of Unit 2. In its Memorandum and Order, the Licensing Board pointedly noted that Petitioners offered the settlement agreements as evidence of an ongoing corporate policy of restricting the disclosure of information to the NRC. 32/ The Beard nonetheless rejected the Petitioners' reliance on the settlement agreements on two grounds. First, the Board correctly found that there was no showing that a corporate policy of entering into non-disclosure agreements, even if true, "resulted in delay in the construction of CPSES." 11/ Second, the Board also found that the Petitioners' reliance on the settlement agreements failed to "directly challenge Texas Utilities' good cause justification for the delay in constructing Unit 2, i.e.,
ll/ Memorandum and Order at 20.
11/ Memorandum and order at 21.
applying safety modifications to Unit 2 based upon the reinspection and corrective action program applied to Unit 1." 23/ The Board, therefore, properly concluded that the settlement agreements failed to provide any support for the proposed contention.
The Licensing Board's determination that the settlement ,
agreements failed to ectablish any ongoing corporate policy which led to the delay in. construction of Unit 2 was clearly _ correct for both of the reasons stated in its Memorandum and Order.
There is no conceivable relationship between these agreements and the causes of delay in completing Unit 2 25/ As the Board specifically noted "the allegation was made (by Petitioners] but it is unsupported." 11/
Ji/ Memorandum and Order at 22.
25/ Petitioners also fail to_ address the fact'that'two of the '
settlement agreements predate the construction permit extension previously granted by the NRC on November 18,.
1988. In deciding to grant the previous extension, the NRC necessarily. rejected the notionLthat any conduct'or acti~vities of.TU Electric. prior to that date improperly de.laye'd construction of Unit.2.
Jf_/ Memorandum and Order at 21.
D. The Licensing Board Properly Refused To Permit Petitioners To Engage In Discovery In An Effort to Support Their Contention In a late-filed pleading presented to the Licensing Board, Petitioners argued that through settlement agreements with -
the former CPSES minority owners, TU Electric attempted to conceal information which Petitioners alleged would provide support for their contention. 12f Petitioners, therefore, _
requested the Board to permit them to engage in substantial discovery of TU Electric and the former minority owners 11/
The Board denied the requested discovery stating: 11/
We deny the motion because Petitioners seek relief that is not available to a petitioner for leave to intervene. The motion in effect 11/ Petitioners also attempted to use their late-filed pleading as a vehicle for providing extensive new argument that the settlement agreements violated the Energy Reorganization Act. No purpose is served by addressing Petitioners' irrelevant arguments that the settlement agreements violate _
the Energy Reorganization Act or public policy. These arguments were presented to the Licensing Board in a late-filed pleading which was rejected by the Licensing Board as untimely. No claim is made to the Commission that the Licensing Board was incorrect in rejecting that late-filed pleading and thus, these arguments may not now be presented on appeal. Moreover, the issue before the Commission is whether the agreements provide any support for Petitioners' proposed contention. As demonstrated above, and more importantly in the Board's Memorandum and Order, those agreements provide no such support, 1E/ Petitioners have claimed in a previous pleading that the information would be used to file additional contentions and/or provide additional support for their previously filed contention. Petitioners' Motion to Compel Disclosure at 2.
11/ Memorandum and Order at 38.
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is one for discovenf . . . . Discovery is only available to a party to the proceeding that-has already filed an admissible _
contention. Wisconsin Electric Power Co.
(Point Beach Nuclear Plant, Unit 1),
ALAB-696, 16'NRC 1245, 1263; 10 CFR S 2.740 (b) (1) . Petitioners have not achieved that status and cannot be granted that relief 40/
Rather than challenge the Licensing Board's refusal to permit their discovery, Petitioners now contend that they were _
entitled to an " adverse inference" that the information they sought through discovery would have supported their contention. 11/ In essence, Petitioners argue that they should be placed in a better position because they were not permitted discovery than if discovery had been permitted.
Petitioners' claim that they are entitled to an adverse-inference should be rejected for three reasons. First, this argument is raised for the first time in Petitioners' Brief, was never raised before the Licensing Board, and therefore it may not Ebe raised on appeal. See e.a. Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-932, 31 NRC 11/ The Board's refusal to allow discovery was.in accord with long-standing NRC case law which unequivocally establishes that a petitioner seeking to intervene is not entitled to discovery.either to frame a contention _or to provide support for a previously filed _ contention. See Northern States Power Co. (Prairie Island-Nuclear Generating Plant, Units-1 and 2), ALAB-107,.6 AEC 188,.192, recons. denied,- ALAB 110, 6 AEC 247,;aff'd, CLI-73-12, 6 AEC 24 (1973); Public Service Co. of New Hamoshire- (Seabrook Station, Units 1 and 2),
ALAB-942, 32 NRC 395, 426-27-(1990),
11/ Memorandum and Order at 9.
371, 397 n.101 (1990). Second, this argument directly challenges the NRC's clear policy prohibiting discovery by a petitioner for-intervention. Finally, Petitioners' argument contradicts the provisions of 10 C.F.R. S 2.714 which require Petitioners to provide " sufficient information . . . to show that a genuine dispute exists with the applicable on a material issue of law or fact."
In summary, Petitioners' c. aim that they are entitled to an " adverse inference
- is nothir.s mere than an indirect attempt to obtain discovery and violates long-standing NRC case law as well as the provisions of 10 C.F.R. S 2.714 and should not be entertained.
E. The Board Properly Found That Petitioners Failed Provide Sufficient Information To Demonstrate That A Genuine Dispute Of Haterial Fact Exist'With TU Electric Petitioners claim that the Board misconstrued the requirements of 10 C.F.R. S 2.714 (b) (2) (iii) in holding that the informStion they submitted in support of their contention was insufficient to demonstrate that a dispute of material _ fact exists with TU Electric. 32/ Petitioners claim that the Board's holding states a requirement for them to prove their case at the pleading stage. 11/ However,- Petitioners cite neither 12/ Petitioners' Brief at 15.
11/ Petitioners' Brief at 16.
case law nor-NRCl regulations to support their claim or to.
challenge the basis for the Board's decision. Petitioners state only:that their mere allegation-that TU Electric's claim _of good cause for the Unit 2 construction delay, was sufficient to meet the requirements of-10 C.F.R. S 2.714 (b) (2) (iii) . 43./
Petitioners apparently believe that their burden of presenting sufficient information was nothing more than a pleading requirement. Although such an argument _might have been possible under the prior provisions of 10 C.F.R. S 2.714, the amendmer ts to 10 C.F.R. S 2.714 have significantly raised the threshold for the admission of a contention. See Georoia Power-Co. (Vogtle Electric Generating. Plant,-Units 1 and 2),'LBP-91-21, 33 NRC 419, 422-24 (1991). Petitioners now have the burden of providing information which clearly and specifically demonstrates that a genuine issue of law or fact exists. Arizona Public Service Co., 34 NRC at 155-56. In its Memorandum and Order, the Licensing Board simply demanded that Petitioners _ meet the !
requirements-of 10 C.F.R. S 2.714. The Board rejected Petitioners contention because they failed'to demonstrate any genuine issue of law or fact.
14/ Petitioners' Brief at 16, 3
,,; , - - . ~ , -
. , - . - _. .J--- ..;-.--..--_-.. _2.- a
I 26 -
CONCLUSION Accordingly, for the reasons set forth above, TU Electric respectfully requests that Petitioners' appeal be denied and the Licensing Board's Memorandum and Order affirmed in all respects.
Respectfully submitted,
., d ,9
-l 6f, & . /l y as
- /
Robert A. Wooldridge, Esq. George L. Edgar Worsham, Forsythe, Sampels Thomas A. Schmut:
& Wooldridge Steven P. Frant 2001 Bryan Tower Paul J. Zaffuts Suite 3200 Newman & Holtzinger, P.C.
Dallas, TX 75201 Suite 1000 (214) 979-3000 1615 L Street, N.W.
Washington, D.C. 20036 (202) 955-6600 Attorneys for TU Electric January 29, 1993
H.
l" UNITED STATES OF AMERICA NUCLEAR REGULATORY COMNISSION .nliLU
.- BEFORE THE COMMISSION. U 5 Ni'C
'93 ilAN 19 - P 3 :54
)
In the Matter of ) a r m j g cg, ;;r ,-
) Docket No. 504446-CPA W!
TEXAS UTILITIES ELECTRIC COMPANY ) ASLBP No. 92-668-61aCPA
) (Construction Permit (Comanche Peak Steam Electric ) Amendment)
Station, Unit 2) )
)
~
CERTIFICATE OF SERVICE I hereby certify that copies of TU Electric's Brief In Opposition To Petitioners' Appeal Of Atomic Safety and Licensing Board Memorandum And Offer were served upon the following persons by deposit in the United States Mail (except as indicated below),
postage prepaid and properly addressed, on the date shown below -
Office of Commission Appellate 1 Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of the Secretary
- U.S. Nuclear Regulatory Commission Washington, D.C._20555-Attention: Chief, Docketing and Service Section (Original Plus Two Copies)
Janice E. Moore Office of General Counsel-U.S. Nuclear Regulatory Commission Washington,_D.C. 20555 Marian L. Zobler Office of the General Counsel U.S.-Nuclear Regulatory Commission-Washington, D.C. 20555 Michael H. Finkelstein Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555
_ Served By. Hand
1
.9 P. Micky Dow Sandra Long Dow Departrnent 368 P.O. Box 19400 Austin, Texas 78760-9400 Michael D. Kohn Stephen M. Kohn Kohn, Kohn and Colapinto, P.C.
517 Florida Avenue, N.W.
Washington, D.C. 20001 Dated this 19th day of January, 1993.
th Paul g. A4futs
'lewm$h d Holt:inger, P.C.
Suite 1000 1615 1 Street, N.W.
Washington, D.C. 20036 (202) 955-6600
-l
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