ML20211M959

Brief Opposing Appeal of Consolidated Opponents Re Extension of Cp.Certificate of Svc Encl

ML20211M959
Person / Time
Site:	Comanche Peak
Issue date:	12/12/1986
From:	Ellis J, Roisman A Citizens Association for Sound Energy, GREGORY, M., TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#486-1904 CPA, NUDOCS 8612180092
Download: ML20211M959 (34)

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BEFORE THE Ok'; O UNITED STATES NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board T6 DEC 16 R2:34 GFFi; .

In the Matter of ) 00Cht!f:j p .

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TEXAS UTILITIES GENERATING COMPANY, ) Dkt. Nos. 50-445-CPA et al. ) ,

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(Comanche Peak Steam Electric )

Station, Unit 1) )

CONSOLIDATED INTERVENORS' OPPOSITION TO APPEIL OF CONSOLIDATED OPPONENTS ANTHONY Z. ROISMAN Trial Lawyers for Public Justice 2000 P Street, NW, #611 Washington, D.C. 20036 (202) 463-8600 Counsel for Meddie Gregory JUANITA ELLIS 1426 South Polk Dallas, TX 75224 (214)946-9446 Representative for CASE Dated: December 12, 1986 861218 PDR A % $$b$0$45 PDR G

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TABLE OF CONTENTS Introduction page 1 ARGUMENT 9 l

l I. .The Admitted Contention Is Amply  ;

Supported By the Stated Bases 9 l II. The Contention Is Not Late Filed and/or There Is- Good Cause for Its Admission 16 III. TUEC's Impugning the Motives of the ASLB Was Without Basis and Improper 22 CONCLUSION 24 i

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.? 4 TABLE OF AUTHORITIES Cases P_ag,e s CASE v. NRC (D.C. Cir., No. 86-1169) 8 Administrative Decisions Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-ll, 21 NRC 609 (1985) 18 Duke Power Co. (Catawba) , ALAB-687, 16 NRC 460 (1982), modified CLI-83-19,-

17 NRC 1041 (1983) 11 Houston Lighting & Power Co. (Allens Creek)

ALAB-590, 11 NRC 542 9-10 Louisiana Power & Light Co. (Waterford),

CLI-86-01, 23 NRC 1 (1986) 14, 15 Metropolitan Edison Co. (TMI-1),

CLI-85-07, 21 NRC 1104 (1985) 14 Mississippi Power & Light Co. (Grand Gulf Units 1 and 2), ILAB-130,~T AEC 423 (1973) 9 Pacific Gas & Electric Co. (Diablo Canyon 1 and 2), XLAB-775, 19 NRC 1366 15 Texas Utilities Electric Co. (Comanche Peak Unit 1/CPA), CLI-86-04 5-6 Texas Utilities Electric Co. (Comanche Peak Unit 1/CPA), CLI-86-15 passim Washington Public Power Supply System (WPPSS Nos. 1 and 2), CLI-82-29, 16 NRC 1221 (1982) passim Regulations l 10 CFR S2.206 21 10 CFR $2.710 1 10 CFR S2.714a 9 10 CFR $2.714a(a) 1 I

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- l 10 CFR S2.716 19, 21 Miscellaneous Report of Investigation Allegations of Misconduct by Region IV Management With Respect to the Comanche Peak Steam Electric Station 13 0

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BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )

)

TEXAS UTILITIES GENERATING COMPANY, ) Dkt. Nos. 50-445-CPA et al. )

)

(Comanche Peak Steam Electric )

Station, Unit 1) )

CONSOLIDATED INTERVENORS' OPPOSITION TO APPEAL OF CONSOLIDATED OPPONENTS 1 Introduction Two principal issues are raised on appeal:2

1. Was the admitted contention timely filed?

2. Was adequate basis provided for the amended contention?

Significantly, there is no allegation that if timely filed and adequately supported the admitted contention is not proper and admissible. Contrary to TUEC's arguments to this Board on the 1

" Consolidated Intervenors" refers to Meddie Gregory and CASE.

" Consolidated Opponents," who, while not le. gally consolidated, are all opposed to allowing a successful and timely intervention in this proceeding, refers to Texas Utilities Electric Company and all its minority co-owners (hereaf ter "TUEC") and the NRC Staff.

2 The Staf f Appeal was untimely filed and should be summarily dismissed. The Board Order was issued on October 30, 1986, and the Staff Appeal was filed on November 13, 1986, after the ten- f day time limit for appeal. 10 CFR S2.714a(a). The minor corrections made by the Board's Order of October 31, 1986 (a previously identified Appendix _was attached and two typos were corrected) do not start a new ten-day period, nor does the Staff h have benefit of the provisions of S2.710 since it did not receive 1 its copy of the opinion by regular or express mail.

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first appeal, it is now clear that the mere f act that an '

extension of a construction permit is sought in order to '

implement a program which it is claimed will correct past errors does not automatically and unchallengeably provide good cause for a construction permit extension.3 3

Compare this Board's articulation of TUEC's position on the first appeal (Memorandum and Order, 7/2/86, p. 7) :

As they see it, the Commission has ruled unambiguously. tha t, as a matter of law, the need for additional time to seek out and to correct possible construction deficiencies constitutes the requisite good cause for a completion date extension regardless of the ,

alleged underlying reason that lead [ sic] to the need to make corrections in the plant.

with the Commission's Opinion (CLI-86-15, 9/19/86, p. 8-9) :

Instead, the question is whether, in view of the safety purposes of the Atomic Energy Act, the need to evaluate and correct safety deficiencies can be good cause for delays in construction completion even when those deficiencies resulted from deliberate corporate wrongdoing. Our analysis here proceeds along the same lines as the analysis under the second way to show good cause, and leads to the same result. We should not reward wrongdoing by granting a CP extension in the face of a finding that construction delays arose from deliberate wrongdoing, but we also should not penalize a current management for the mistakes of its predecessors. 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.

t and with TUEC's current pleading (Brief of Permittees, 11/10/86,

p. 11):

CLI-86-15 was not a " modification" of the law. It was rather a statement of the very 1

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e 6 The substance of the now admitted contention is a merger and some refining of several contentions, originally identified in this proceeding on January 31, 1986, when an opposition to the application for the construction permit extension was filed (see CASE Request for Imposition of Fine, Suspension of Construction Activities, and Hearing on Application to Renew Construction Permit (pp. 8-12)) and more specifically articulated in the Petitions to Intervene of the Consolidated Intervenors filed on April 7, 1986. CASE originally charged in January that the cause of the delay in construction was TUEC's lack of " technical competence and commitment ... to build a safe nuclear power plan t," that there have been widespread and persistent problems at the plant, and that the current effort to find and correct past mistakes is actually perpetuating those mistakes. CASE Request for Imposition of Fine, Suspension of Construction Activities, and Hearing on Application to Renew Construction Permit (1/31/8 6) , pp. 8-14 and Appendix B. In addition to the contentions filed on April 7, 1986, which articulated and further specified Consolidated Intervenors' concerns, these issues were explained in substantial detail in oral argument before the Hearing Board and this Board and in CASE and Meddie Gregory's Opposition to Appeal of TUEC and NRC Staff (5/27/86),

l particularly pp. 9-11 and Attachments I and II. The Commission l

also fully understood the substance and thrust of the contention.

i legal principle which the Permittees had urged upon the Board and this Appeal Board in the context of the earlier admitted contention.

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6 CLI-8 6-15, slip op. a t p. 3.

From the outset, Consolidated opponents treated these pleadings by Consolidated Intervenors as raising the very issues that are now the focus of the contested amended contention:

CASE's position is that technical qualifications to construct the plant, implementation of an adequate QA/QC program, and general compliance with NRC regulations governing plant construction are proper issues for a construction permit amendment proceeding. .

Letter to Samuel Chilk, Secretary, NRC, from Nicholas Reynolds, counsel for TUEC (2/4/86).

For purposes of the request now before it, the Commission need not reach the question of whether the matters which CASE seeks to raise are, in fact, properly litigable in a construction permit extension proceeding.

But, in any event, that corrective action by an applicant may be necessary and may have contribute'd to or caused a delay in completion of construction is neither novel nor has it previously been found to vitiate a finding of good cause or of no significant hazards consideration.

NRC Staff Answer to CASE Request for Stay, 2/13/8 6, p.12, fn 9.

As the argument was advanced (and apparently accepted by the Board), the extension may not be denied if the defects originated in one set of reasons (which we infer to be good faith construction errors) but may (and presumably must) be denied if the construction defects were the result of a dif ferent set of reasons. What this second set constitutes is never made clear, either in the petitions or the Licensing Board's decision, but apparently it consists of some combination of prior notice of the asserted defects, inadequate celerity in their recognition and rectificatin, and possibly some bad motive for the acts that produced them. If, apparently, a permittee intentionally violated Commission I .,

5 regulations, or failed to address adequately any identified deficiencies at any time in the construction process, and is now faced  !

with remedying those deficiencies, so the '

argument appears to have gone and been accepted, then the prohibition of CLI-86-15 does not apply.-

NRC Staff's Notice of Appeal from Atomic Safety and Licensing Board Memorandum and Order Concerning Parties and Contentions and Supporting Brief, 5/12/86, pp. 21-22.

In short, Consolidated opponents are fully informed about Consolidi ced intervenors' contentions and have been for almost a year.

During this nearly one year period, Consolidated opponents were able to greatly expand their knowledge of the contentions which Consolidated Intervenors have consistently pursued here as a result of full briefing and oral argument on the first appeal, discovery requests, full briefing on both application to the United States Court of Appeals for a stay pending appeal and on the merits and oral argument on the latter, and additional briefs filed before this Board as a result of the decision in CLI-86-15.

In short, this is not a case where-the opposing parties do not know precisely what an intervenor is contending. In fact, it is beceme they fully realize what is being contended that this Board is being barraged with appeals.

Another important and relevant development during the last i

year has been the Commission's decisions in CLI-86-04 and CLI-86-15. In CLI-86-04, the Commission concluded that the i

contentions that would be admissible in this proceeding would be i

governed by the principles laid down in Washington Public Power i

Supply System (WPPSS Nos. 1 and 2), CLI-82-29, 16 NRC 1221, 1229 '

, 6 (1982). CLI-8 6-0 4, slip op. p.11. Based on this direction, the ASLB found as follows (Special Prehearing Conference Memorandum and Order, 5/2/86, pp. 3-4):

Turning then to the page cited by the Commission in the WPPSS decision, we find that this proceeding is limited to direct challenges to the permit holder's asserted reasons that show " good cause" justification for the delay. [ Emphasis added.] ... [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 suf ficient to sustain a finding of good cause.... Moreover, the permit holder cannot misrepreent those reasons noted, any determination of the suf ficiency of a permit holder's reasons for delay "[ sic]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 some other cause (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) .... 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 circumstances that do not constitute " good cause."

We also found relevant to our task the following language in CLI-82-29, which occurs on page 1230 of that opinion:

If a permit holder were to construct portions of a facility in violation of NRC j regulations, when those violations are i

' detected and corrections ordered or voluntarily undertaken, 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 extension.

l This passage places the following gloss on CLI-82-29: that it is not sufficient to allege that a delay has been caused by violations of applicable regulations. The allegation must show more than a

e 6 mere violation. In those circumstances, it must allege as well that applicants were dilatory in the conduct of the construction work and that this f actor was the principal explanation for the need for an extension of the completion deadlines.

We learn f rom Washington Public Power Supply System, et al. (WPPSS Nuclear Project No. 21, ALAB-7227 1983, 17 NRC 546 at 552 that " dilatory" "means the intentional delay of constructionn without a valid purpose." And from footnote 5 of that case we learn that "the purpose and action taken must be consistent with the Atomic Energy Act and implementing regulations." We further learn, at page 553 of that case, that even if we were to find, base.d on evidence to be presented to us, that Applicants were dilatory, we would still be required to make a judgment as to whether continued construction should nonetheless be allowed.

As a result of that analysis, the ASLB admitted a contention that was a combination of Gregory 1 and CASE 6 and denied several contentions that addressed the question of whether the substance of what TUEC proposed to do was itself lawful and suf ficient to correct past mistakes, particularly CASE contentions 3, 4, 5, and

7. The admission of Gregory 1 and CASE 6 was the subject of the first appeal in this case.

Following the certification of the first appeal to the Commission by this Board, the Commission issued CLI-86-15. While there is substantial disagreement among the parties on how to characterize the decision, there cannot be any doubt that the decision did formulate a new standard for good cause to be applied in cases where, as has been argued here from the outset, deliberate refusal to obey NRC regulations is the cause of the construction delay. In such a case the Commission has now ruled l

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f I that (CLI-86-15, slip op. p. 9):4 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 the real issue raised by the pending appeals is whether Consolidated Intervenors will be allowed to pursue a contention the substance of which.has been known by the parties and the Commission since the first filings by CASE on January 31, 1986, and the scope of which was only explicitly authorized as a result of the Commission's decision of September 19, 1986. Consolidated Opponents argue that Consolidated Intervenors should not have their hearing, despite NRC assurances to the United States Court of Appeals for the District of Columbia Circuit that such a hearing will occur and was proceeding (see Appeal Board Memorandum and Order, 7/2/86, pp. 9-10, fn 13; similar representations etere made by NRC counsel during the oral argument in CASE V. NRC (D.C. Cir. No. 86-1169) on December 5,1986).

The principal theories for that denial are that the current version of the contention is untimely filed without good cause l and that the Staff and TUEC do not have sufficient knowledge from the disclosed bases given as to what Consolidated Intervenors are claiming and why. The ASLB, in a well-reasoned opinion, 4

A full discussion of our views on the meaning of the Commission's decision is contained in Consolidated Intervenors' Comments on CLI-86-15 (10/7/86) and incorporated herein by reference.

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l dismissed these arguments and allowed the amended contention.5 l This Board should affirm.

ARGUMENT I.

The' Admitted Contention Is Amply Supported  !

By the Stated Bases 6

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In what is the most recent7 seminal case on the issue of what is an adequate " basis" to support a contention, the Appeal Board reiterated that the standard for deciding whether suf ficient basis exists is whether " applicant and the staf f were supplied with enough 'so that they will know at least generally what they will have to defend against or oppose.'" Houston Lighting & Power Co. (Allens Creek), ALAB-590, 11 NRC 542, 549 n.

5 The ASLB rejected one contention as more appropriate for a motion than as a contention. Memorandum and Order (New Contentions), 10/30/86, pp. 6-7, reconsideration denied 12/3/86).

In our request for reconsideration we argued why we believe the f ailure of TUEC to plead or the Staf f to make findings related to what was the true cause for the delay in construction and whether and how sufficiently TUEC has discarded and repudiated the persons and policies that caused that delay is a f atal flaw in the approved-construction permit extension which is the subject of this hearing. We do not believe we are permitted to appeal that denial (10 CFR S2.714a) directly or indirectly.

Consolidated Opponents have argued to the contrary. Out of an abundance of caution, we incorporate by reference here our Motion for Reconsideration (11/4/86), which was denied by the ASLB (Order of 12/3/86), as an alternative basis for sustaining the i ASLB decision to allow the hearing to proceed on the basis of one admissible contention.

6 This argument has been largely made and rebutted in previous filings on the first appeal. Much of the following discussion reproduces our previous arguments on this point.

7 The original seminal decision was Mississippi Power & Light Co. (Grand Gulf Units 1 & 2), ALAB-130, 6 AEC 423 (1973), which the licensing board and the parties in Allens Creek ignored.

0 b 10, quoting from Philadelphia Electric Co. (Peach Bottom Units 2

& 3) , ALAB-216, 8 AEC 13, 20 (19 7 4) . Neither the Staf f nor TUEC have claimed or could claim that they do not know what they will have to defend against or oppose in this proceeding.

Our amended contention referenced Appendix B to CASE Request for Imposition of Fine, Suspension of Construction Activities, and Hearing on Application to Renew Construction Permit (1/31/86) , which consists of 57 pages of summaries of findings and excerpts from more than twenty documents which disclose a long history of repeated warnings about recurring improper practices, and finally confirmation that these practices had in fact led to significant deficiencies in the as-built plant.

Consolidated Intervenors also referenced findings and decisions of the ASLB related to TUEC's f ailure to properly design the plant and failure to correct design errors.

There really cannot be any serious doubt that this meets and far exceeds the " basis" test laid down by the Appeal Board.

Consolidated Intervenors not only provided the reasoning behind their contention (Houston Lighting & Power Co. (Allens Creek),

supra at p. 548) -- i . e . , that the consistent and repeated refusal to follow proper procedures was the cause for the delay in constructing a properly built plant and that was a deliberate l decision by TUEC -- but also provided extensive and detailed 1

references to some of the evidence upon which they relied for l

their position (id. a t pp. 548-9 and n.10, and cases cited l there).

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availability of information from which bases can be articulated.

See, e.g., Duke Power Co. (Catawba), ALAB-687,16 NRC 4 60, 4 68 (1982), modified CLI-83-19, 17 NRC 1041 (1983). Absent such documentation, no basis that depends on the documents can be required, although intervenors are expected to do the best they can with the available documents.

In this case Consolidated Intervenors are particularly restricted in their access to relevant information to provide an even more particularized basis. First, TUEC has never pled the facts, much less produced a document upon which it relies, to explain why the construction delays occurred, whether they were the result of deliberate corporate policies to speed construction by violating regulations, and, if so, to what extent and in what manner they have removed the wrongdoers and discarded and repudiated the policies. The Staff, although confronted from the outset with CASE's well supported allegations that such illegal corporate policies existed, totally ignored these factors in its approval of the extension of the construction permit. Since that approval is the subject of these hearings and since Consolidated '

Opponents have never addressed the issues that the Commission ruled in CLI-86-15 must be addressed in the f ace of a challenge such as presented by consolidated Intervenors here, it is at best disingenuous (if not premature) for Consolidated Opponents to argue that we should have better articulated our bases for the contention. In fact, but for the fortuity of one of the Consolidated Intervenor's being a party to the OL proceeding, eccess to much of the data relied upon to support the contention would have been markedly less available to a new intervenor.

.o s-Second, we are admittedly dealing with an allegedly sinister motive not likely to be revealed in publicly available documents.

A strong inference of such a motive is supported by the publicly available documents, which reveal a long history of TUEC being told that their procedures and processes were not in compliance with NRC regulations and TUEC ignoring those warnings by either post hoc engineering justifications and/or persistence in pursuing the same courses of action. Now those courses of action have been substantially found to be flawed in circumstances (active intervenor and concerned ASLB) that TUEC can no longer ignore, and the redesign, reinspection, and repair effort has been begun. Full discovery will be required to find the

" smoking guns" that Consolidated Opponents now demand and to further strengthen the inference.

Third, Consolidated Opponents in the OL proceeding have fought attempts by CASE to pursue the issue of past management comp e tence, and TUEC has been particularly adamant in its refusal to allow discovery on this issue, except in the most restrictive sense. See, e.g., Applicants' Response To Board's Memorandum and Order (Management Issues Under Contention 5; CASE Request of July 2, 1986) of September 2, 1986 (9/12/8 6) . Thus even the fortuitous presence of an OL intervenor in this proceeding is not sufficient to provide access to the internal information, documents, and admissions demanded by Consolidated Opponents.

lio w e v e r , Consolidated Intervenors do have a wealth of data from which at least a reasonable inference can be drawn that TUEC deliberately and repeatedly chose not to build its plant properly

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-- i .e . , the ten years of documents warning it that it was ignoring proper procedures and its late (1985) and reluctant (only af ter the Staf f decided to hold up its review pending completion of a reinspection, redesign, and reconstruction ef for t) agreement to start listening to and doing something about the problems.8 8

Attached to this brief as an Appendix is an analysis of the bases given by Consolidated Intervenors for some of the points raised by the Staff in .its brief as being without bases. In addition to the f act that the Staf f really is arguing about evidence, not bases, there is also new and highly relevant evidence that the principal arm of the Staf f charged with surveillance of the TUEC construction program, i.e., Region IV, apparently aided and abetted, if not actively encouraged, by their counterparts in Washington, D.C., have been systematically suppressing NRC inspector findings that TUEC was gravely departing from the NRC requirements, including activities in 1985 after formation of the CPRT.

... [I] t appears that it would not be possible to rely on the Region IV QA inspection effort as evidence of the safe construction of CPSES. This, in combination with the deficiencies identified in TUGCO's implementation of itts QA program, means that to determine the adequacy of plant construction it will be necessary for the NRC to rely largely on the detailed technical inspections of various structures, systems and components that have recently been conducted by the NRC at CPSES.

Report of Investigation Allegations of Misconduct by Region IV Management With Respect to the Comanche Peak Steam Electric Station, p. 46. See also Report, pp. 35-37.

It is rather unseemly for the Staf f, of which Region IV is part and relies on the same lawyers in these hearings, to argue here that more evidence of TUEC's continuing failures to meet NRC requirements should have been presented by Consolidated Intervenors when they participated in suppressing such information.

Encouraged by this longstanding coverup of safety problems by this principal watchdog, it is not surprising that TUEC persisted in its illegal conduct for so long. But for the allegers, the willingness of some of the technical leadership and

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It was this arrogance and obstinacy by TUEC that Consolidated Intervenors allege led to the failure to properly build the plant within the time provided. TUEC was taking a calculated risk that it was expediting construction by deliberately short-cutting proper procedures (and continuing to do so even af ter numerous warnings) and hoping it would get away w ith this scheme. The Commission has now ruled that a construction permit ext.ension proceeding is a proper place to explore the existence of such a scheme, and the volume of evidence here to support the specific bases is higher than at any plant of which we are aware. If this case has insuf ficient basis, there will be no case with sufficient basis.

The Staf f argues that discovery cannot be used to flesh out an inadequate basis. Staff Brief, p. 11. Neither the ASLB decision nor Consolidated Intervenors argued to the contrary.

Instead, the point was made that the allegations and bases asserted were adequate and that discovery would help provide the evidence that the Staff erroneously argues is required as a precondition for admission of the contention. In its argument Staff relies on Louisiana Power & Light Co. (Waterford), CLI 01, 23 NRC 1 (1986), and Metropolitan Edison Co. (TMI-1), CLI 7, 21 NRC 1104, 1106 (1985), which involved motions to reopen closed records and not amended contentions. The cases underscore technical participants in the TRT to investigate those allegations and report their findings, the perseverance of CASE, and the active involvement of the ASLB, TUEC would still be thumbing its nose at NRC requirements. In this hearing we will determine whether TUEC really has adopted the management policies that demonstrate discarding and repudiating its past practices.

the difference between the standard demanded by Consolidated Opponents here and the standard actually applicable to this case. In the proposal to reopen a hearing, the moving party must meet a far more restrictive test. Louisiana Power & Light Co.,

supra, at p. 5, quoting with approval from Pacific Gas & Electric Co. (Diablo Canyon 1 & 2) , ALAB-775,19 NRC 1366-67:

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 supporting information must be more than mere allegations; it must be tantamount to evidence ... [and] possess the a ttribu tes se t for th in 10 C.F.R. 2.743 (c) defining admissible evidence for adjudicatory proceedings. Specifically, the new evidence supporting the motion must be " relevant, material, and reliable."

It is the reopening evidence standard that Consolidated Opponents are pressing here rather than the " mere allegations," which the Commission implicitly recognizes are required for an adequate basis for a contention where no reopening is involved.

In sum, the purpose of a basis requirement -- to adequately inform the other parties of the arguments of the intervenor --

is fully met by the admitted contention. The missing ingredients are some of the facts, not the reasoning and bases, for the contention. Given the nature of the contention presented, it is difficult to see, short of an internal leak, what more an intervenor could plead to support the contention that Consolidated Intervenors have pled here, nor do Consolidated Opponents suggest such information or how any intervenor would ever obtain i t.

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It was this arrogance and obstinacy by TUEC that Consolidated Intervenors allege led to the failure to properly build the plant within the time provided. TUEC was taking a calculated risk that it was expediting construction by deliberately short-cutting proper procedures (and continuing to do so even af ter numerous warnings) and hoping it would get away w ith this scheme. The Commission has now ruled that a construction permit extension proceeding is a proper place to explore the existence of such a scheme, and the volume of evidence here to support the specific bases is higher than at any plant of which we are aware. If this case has insuf ficient basis, there will be no case with sufficient basis.

The Staf f argues that discovery cannot be used to flesh out an inadequate basis. Staff Brief, p. 11. Neither the ASLB decision nor Consolidated Intervenors argued to the contrary.

Instead, the point was made that the allegations and bases asserted were adequate and that discovery would help provide the evidence that the Staff erroneously argues is required as a

i. precondition for admission of the contention. In its argument Staff relies on Louisiana Power & Light Co. (Waterford), CLI ; 01, 23 NRC 1 (1986), and Metropolitan Edison Co. (TMI-1) , CLI 7, 21 NRC 1104, 1106 (1985), which involved motions to reopen closed records and not amended contentions. The cases underscore technical participants in the TRT to investigate those allegations and report their findings, the perseverance of CASE, and the active involvement of the ASLB, TUEC would still be thumbing its nose at NRC requirements. In this hearing we will determine whether TUEC really has adopted the management policies that demonstrate discarding and repudiating its past practices.

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II.

The. Contention Is Not Late Filed, and/or There Is Good Cause for Its Admission The essence of the amended contention was timely filed on April 7, 1986, and a portion of it was denied. In particular, the amended contention, with some changes to conform to CLI 15, is a merger of CASE Contentions 3 through 7. The basis for the denial of CASE Contentions 3, 4, 5, and 7 was a reading of ,

the Commission decision in Washington Public Power Supply System (WPPSS Nos.1 and 2), CLI-82-29,16 NRC 1221 (1982), by the ASLB that accepted TUEC's arguments in Permittees' Answer to Petition to Intervene of Citizens Association for Sound Energy and Meddie Gregory (4/17/86) .

Prehearing Conference order (5/2/86) at p.

11, fn 8. Those arguments were:

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Possible problems arising out of future construction '

activities 1225, 1230).

are not litigable (CLI-8 2- 29, 16 NRC at I

2.

Lack of reasonable assurance is litigable in the OL and not this proceeding and management character and competence are not litigable here (CL I-8 2- 29, 16 NRC i

at 1224-25, 27, 30).

3. Technical incompetence to construct Unit 1 is not litigable in this proceeding (CLI-8 2-2 9, 16 NRC at 1224-25, 30).

4. Allegations regarding the intent to continue to improperly design, inspect, and construct the plant are litigable only in the OL proceeding (CL I-8 2-29, 16 NRC at 1227) and a CP extension proceeding cannot lawfully include anything other than a challenge to the alleged good cause for delay (CLI-82-29, 16 NRC a t 1229) .

In CLI-86-15, the Commission in essence rejected the heart of these interpretations of CLI-02-29 as applied to this case.

First the Commission ruled that, where a deliberate policy to

violate NRC regulations was the cause for a delay in construction, and it is still continuing, it would violate the purposes of the Atomic Energy Act to grant a construction permit extension. CLI-86-15, slip op p. 8. Thus, contrary to the assertions of TUEC that were accepted by the ASLB, the reason for delay is not irrelevant since a deliberate policy to violate regulations triggers an additional inquiry. Similarly, the '

nature of the proposed corrective action is not irrelevant since where the deliberate violation policy exists it is necessary to determine whether theJe has been a discarding and repudiation of past corporate practices and a removal of wrongdoers (CLI-86-15, slip op. at pp. 6, 8-9) . The proposed corrective action program is at least a critical place to test this proposition. The inclusion of the cause of past delay and the acceptability of the corrective action program as proof of removal, reptdiation, and discarding in a case like the~present one can be reconciled with CLI-82-29 since the fact pattern here was never contemplated in that case, but both TUEC and the ASLB were totally convinced that CLI-82-29 would not allow such an interpretation. The Commission surprised them and us in CLI-86-15.

Based on this new opinion and Consolidated Intervenors' findings, the ASLB concluded that the amended contentions were "merely a more clearly worded version of portions of prior ellegations that were timely" (Memorandum and order (10/30/86),

p. 5) and held that it was proper for Consolidated Intervenors to seek reconsideration of its prior ruling at this time because of issuance of CLI-86-15, which provided "new insight into  !

cpplicable law" (Id., p. 5, fn 8). Thus the amended contention

was timely filed and at most the ASLB decided within its discretion (not challengeable here) to allow a late filed reconsideration motion.

However, even if the originally filed contentions (CASE 3-5 and 7), now merged with CASE 6, were not deemed to meet the timely filed requirement, they still meet the principal test for good cause for late filing -- a significant new development.

Good cause generally consists of "a convincing and reasonable explanation" of why a submission was not submitted earlier.

Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-ll, 21 NRC 609, 628 (1985). Where an amended contention is involved, the question becomes why the contention was not originally submitted in its amended form. The answer in this case is that af ter April 7 the Commission adopted a new legal standard that allows inquiry into the cause for delay and the nature of a proposed corrective action program where, as here, it is properly alleged that the delay is caused by willful misconduct that is continuing. This was a substantially dif ferent view of CLI-82-29 from those taken by the ASLB, TUEC, and the Staff and represented a significant extension of CLI 29.9 With respect to the other factors relevant to late filed 9

• The Staf f's original opposition to the petitions to intervene (filed 4/18/86) basically tracked the argument of TUEC on the meaning of,CLI-82-29, although it abandoned that view in the first appeal, essentially conceding the admissibility of a contention such as CASE 6 but shif ting to the position, not previously argued by it, that the contention lacked adequate basis.

(

l l

contentions, it is conceded that factor 4 supports admission and factor 5 usually weighs against admission, although the delay in resolution of the question whether the construction permit extension already approved should have been issued harms Consolidated Intervenors and not TUEC, and to the extent the OL and the CPA involve the same underlying facts, discovery, and issues and that consolidation pursuant to 10 CFR S2.716 is pursued, the delay factor could be quite limited.

With respect to factor 3, ability of Consolidated Intervenors to contribute to the record, the Consolidated Opponents ignore the realities of this proceeding. Consolidated Opponents assert that CASE had to provide a listing of its accomplishments in the hearing to support its position that it can make a valuable contribution to pursuing the CPA issues. In addition to the issues on design on which CASE has prevailed and which the Staff grudgingly acknowledges, CASE and its witnesses, including the allegers, one of which is Meddie Gregory, are the detectors and presenters of the evidence that formed the basis for most of the harassment and intimidation findings of the EG&G and most of the deficiencies found by the TRT, a substantial part of the Staf f questions about and TUEC's modifications of the CPRT, and the only published critique of any of the results reports (I a.4), to mention only a few. The undeniable and self-ovident facts are that, left to their own devices, and without the intervention of this Board and CASE, the Consolidated opponents would have licensed this woefully deficient plant long ago without ever identifying, much less correcting, the problems that now have forced its substantial postponement to complete 2

massive, albeit inadequate, reinspection effort. The alleged

" repudiation" that Staff claims TUEC has now made of its past policies is the direct result of CASE's efforts, often pursued over the strenuous objections of the Staff and always over the strenuous objections of TUEC.

With respect to f actor 2, Consolidated Opponents in various forms argue that the OL will provide Consolidated Intervenors with the opportunity to litigate everything they seek to litigate here, and thus this hearing is unnecessary.10 This Board should contrast the position taken by TUEC in a dif ferent context on this question of similarity of issues between the OL and the CPA.

See, e.g.,

Applicants' Response of August 1, 1986, to CASE Request for Production of Documents (June 27, 1986) and Motion for Protective Order, at 3 ("The issues in the two proceedings are distinctly different, albeit involving the same plant.").

In addition, TUEC focuses on the language in CLI-82-29 that, in relying on two opinions of this Board, holds that a construction permit extension proceeding should not address issues already being adequately addressed in other hearings.

CLI-82-29, 16 NRC at 1226-27. The bases of the Appeal Board decisions as articulated by the Commission are that other proceedings provided a forum for resolution of the issues that the intervenors sought to raise. Significantly, the Commission faced this same argument in deciding CLI-86-04 (at which time it was aware of Consolidated Intervenors' concerns), and while 10 Of course is not a party in the OL.that argument does not apply to Meddie Gregory, who

pointing to the OL and s2.206 as available to pursue some of the concerns pressed by CASE, simultaneously ordered the conduct of this hearing to allow CASE to pursue any legitimate challenges to good cause, challenges that now embody matters covered by the amended contention.

Moreover, the ultimate issue here is whether the construction work, including the corrective action and reverification program, should be halted until TUEC develops a program that demonstrates that it has removed wrongdoers and that it has discarded and repudiated the policies that those wrongdoers implemented. That issue can only be litigated in this proceeding. If Consolidated Opponents' view was correct, the kind of hearing authorized by CLI-86-15 would never be held because the issue of wrongdoing and corrective action could be litigated in any OL. What is unique is the power of the NRC, when asked to allow additional time to implement a new program, to hold up that approval and construction until it is convinced the wrongdoing has stopped and the utility is on the right path.

A separate issue is presented by the f act that much of the evidence and even some of the subsidiary issues in the CPA and the OL are the same. Upon proper motion of a party, the ASLB can consider whether to combine discovery and/or hearings on some matters to avoid duplication. 10 CFR 3 2.716. Consolidated Intervenors are not inherently opposed to such consolidation, provided expedition is achieved and the CPA is not delayed, but we will await a concrete proposal before taking a formal position. The existence of the opportunity to avoid duplication,

while preserving the resolution of different ultimate issues with different effects in the CPA and the OL, fully meets the policy underlying the Commission's concerns as expressed by CLI-82-29, '

16'NRC at 1226-27.

Thus even if Consolidated Intervenors were required to meet the late filed contention standards, the standards are met here and the amended contention should be accepted. s s,

III.

-(

TUEC's Impugning the Motives of the ASLB '

Was Without Basis and Improper As its last argument, TUEC imputes to the ASLB an improper motivation for its decision and urges reversal for that reason.

The business of imputing motives to judges is chancy enough, but to do it where, as here, the charge is baseless borders on gross, disrespect for the hearing officers.

TUEC contends that the ASLB has chosen to admit Consolidated Intervenors' contention because it wants to avoid the possibility of a reversal of its position on the admissibility of past management's character and competence in the OL proceeding. TUEC Brief, pp. 18-20. The portion of the opinion to which TUEC points (Prehearing Conf erence Order (10/30/86), Part VI, p. 10) is where the ASLB is rebutting an argument made by TUEC thhc Pil \

the issues raised in the CPA can be raised in the OL and thus should not be litigated in the CPA. It stretches the ASLB decision beyond any conceivable interpretation to claim the Board is justifying the admission of the contention on the basis of the possibility of being reversed in the OL. The Board is disclosing

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t y that, because TUEC has challenged .g the admissibility of the ,.

management issue in, the_0L,' i challenge that may be sustained on w ^

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appeal, - the sissueris' in a dif,ferent procedura1 ' context sin this

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CPA .,

than what the Commission f aced in CLI-82-29. It uses that k difference to' distinguish the argument made by*TUEC based on CLI-82-29, not to justify its own dell-reasoned c'iiclusion, s

o and that s

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• iis clear beyond any question in the opinion. -

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s Nonetheless TUEC chooses +to totally distort the ASLB decI'sion and accuse the ASLB of admittir4h the Consolidated s 1

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% Intervenors' contention because of "The Fact That the Board is s E

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Concerned Abou t the;Po'ssible Fa te ..." . (TUEC Brie f, p.10)' of i ts

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[ppdars hnyyhere in thik record) a'n'd ' accuses the ASLB of habi,ng

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s effect, that it is n'ecessary to admit -this contention and have a g

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%  ; e proceeding in this docket because otherwise the issue might neveri , .

s be litigated" (when the ASLB has done nothing more than address e s

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.any;argument advanced by TUEC 1 4

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Id. When dcys a , s. ,

6 deliberate and unjustified' dist'ortion of a decision warrant some

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Surely ~ when, as here, that distoction goes beyond '  ;

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overzealous advocacy lon p half of a client and seeks instead to i y

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impute to hearing officers improper motives for which there is no t

reasonable basis in the record. Such charges regarding the s O

-VN motives of 'the NRC decisionmakers ar'e inappropriate and d'isruptive of'the legal process.

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a We urge the Appeal Board to 9

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address this matter in its decision. >

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CONCLUSION For the reasons stated above, the appeals should be denied.

Respectfully submitted, A m u _~ - ^

ANTHONY Z.

map Trial Lawy for Public Justice 2000 P Str e , NW, #611

.. Washington, D.C. 20036 (202) 463-8600 Counsel for Meddie Gregory 1 Ahc 3. ,

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@ANITA ELLIS /

1426 South Polk ,

Dallas, TX 75224 (214)946-9446 Representative for CASE Dated: December 12, 1986 l

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APPENDIX i

In this attachment, Consolidated Intervenors demonstrate the total lack of merit in the Staff assertions regarding the alleged absence of facts to support Consolidated Intervenors' bases regarding the conduct of TUEC in the construction of CPSES. Frankly we are extremely disappointed to find the Staff in lockstep with TUEb, denying that there has been a major and unprecedented breakdown in design, inspection, and construction at CPSES and that the breakdown has occurred in the face of I repeated warnings from the NRC, independent auditors, former i

Brown and Root and TUEC employees, inP.ervenors, and the hearing board. Reasonable minds may differ as to whether this pattern of conduct reflects a deliberate attempt.:to evade NRC regulations (as Consolidated Intervenors urge) or is more benign (as TUEC

! urges), but no fair and rational entity, particularly one like the Staff that is charged with the legal and moral duty to protect the public health and safety, could deny that evidence of the pattern exists.

• Consolidated Intervenors do not and would not attempt to establish here whether the pattern exists or not, since that is a .f actual matter to be decided af ter discovery and evidentiary i hearings. The Staff assertion is that there is no evidence that i supports the stated bases. Without conceding that bases require evidence, we set forth in this document the rebuttal to the Staff  ;

allegation that no evidence supports the bases. Obviously it is  !

not Consolidated Intervenors' duty in pleading its bases to assemble the data that TUEC may wish to present to rebut the i Consolidated Intervenors' evidence at the hearing. Apparently TUEC need not worry about this task either since the Staff lawyers

-have apparently decided to do the work for them.

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i The Staff asserts (Brief, p. 7):

. Under this approach, it is clear that the Consolidated Intervenors' litany of design, i

construction and QA deficiencies that were spread out over the course of the design and construction of the facility, without more, a not establish a pattern or course of action that would reasonably suggest the

{

existence of a policy to deliberately violate NRC requirements.'

1 The Staff intende this Board to believe that, because every plant has some problems, merely listing the problems is not enough. Consolidated Intervenors did more. Among other citations, we cited the Staff findings in SSER-11, which concluded (p. P-35):

The pattern of failures by QA and QC personnel to detect and document deficien-

.'cies suggests.an ineffective B&R and TUGC0 inspection system.* This' pat-

' tern, coupled with (a) the past problems in the document control system, (b) def t-ciencies in the QC qualification program, (c) ineffectiveness of the quality

• audit and surveillance systems, (d) a rudimentary and ineffective trending and corrective action system, (e) QC problems as shown in QA/QC Category 8, A0

• and (f) instances cf improper workmanship of hardware as found by all of the a ni groups, challenges the adequacy of the QC inspection program at.CPSES on a system-wide basis. :

Corrective acti'on will require high-level manageme.nt attention and a new man-agement emphasis on the importance of quality as a vital element of an adequate construction program.

The Staff asserts (Brief, p. 8): i None of the doc.2ments in Appendix B state that Applicants had deliberately ignored or disregarded criticism.

i

e The Staf f intends this Board to believe that, because on some occasions TUEC responded to the criticirm, albeit incorrectly, they could not be said to have ignored the criticism. What they do not mention is the persistence of the criticism and TUEC's obstinate , refusal to change its conduct as the following analysis discloses.

For example, in 1978 the Management Analysis Company (MAC) prepared an audit of CPSES and among its conclusions was the following (pp. 4-5):

III. DESIGN CONTROL The present system of expedi:ing field changes by referring design _cnanges.

tar the originaI design organization for approval after the fact does. noe meet the intent of 10CFR50 Appendix a nor of ANSI N45.2.11, which require that field changes be subject to design controls commensurate with those exercised on the original design. TUGC0 audits have already disclosed

~

that the Architect / Engineer- has not been reviewing field originated changes -

on a concurrent basis, thus the design engineer's comments may be received after the specific construction work is complete resulting in possible loss of design integrity, undue pressure on the designer to justify what has been done, loss. of des.igner responsibiTity or possible extens.ive repairs. It is reconmended that a system for expediting review and approvat by the originar designer be established on all safety related changes using; teTephone,. telecopier or teiex as necessary to coordinate and document change approvais.

In October 1982 CPSES received a Design and Construction Self-Initiated Evaluation using methodology prepared by the Institute for Nuclear Power Operations. One part of the report reveals

e the following (p. 222):

Finding: The procedure for DCA/ CMC's does not require formal inter-disciplinary review at the site. There is the possibility that two or more disciplines could

, issue design change requests for the 'same problem '

i.e., the procedure does not require interdiscip-review of DCA's/ CMC's.

I Response: We agree with the finding. However, our experience has indicated that the after-the-fact design review

, performed at New York provides adequate assurance that no problem o.f safety significance will remain unresolved.

In 1985, the Staff concluded in SSER-ll (p. P-27):

Because a basic premise in designing a piping system includes the. fact that

! support designs will reflect the assumptions made in the analysis of that pip-ing, the failure of the design process to require Gibbs & Hill to review de-signs and modifications of pipe supports prior to fabrication and installation, is of concern.

The' Staff also ignores its own investigators' finding of a management attitude at TUEC to ignore, by engineering away, NBC regulations:

In 1979 the NRC found that the QA/QC program was ineffective.

l because the Applicant

.has years.

been-led down a poor path by Brown and Root during past It appears to [the RRIJ that Brown and Root has, in many instances, provided construction procedures to fulfill Appendix B that provide a minimum amount of direction to the construction force and yet comply to the words, if not the spirit of Appendix B.

What I have begun to see, but have difficulty proving is that the Brown'& Root cons.truction philosophy is to build something anyway they want to and then put it up to the i

engineer to document and approve the "as built" condition.

l If the engineer refuses, he is blamed for being too 1

conservative and not responsive to the client's needs and thus the driving force behind my request for a special engineering audit of site operations.

It seems likely to me that the licensee will use his full powers to be less open with us in the area of identified construction deficiencies than he has in the past. I ,think he will take maximum advantage of part 50.55(e) and the i

[NRC3 guidance to go.through the necessary formalities but avoid, if at all possible, having to report to us. (supra)

In 1980, the first annual Systematic Assessment of Licensing Performance report-(IE Report #80-25, NRC Staff Exhibit 181),

continued to report problems with the QA/OC program, unqualified personnel, and attitude toward regulations.

~

The report conclude's the following about the effectiveness and attitudes of licensing personnel in complying with NRC requirements:

Licensee construction and engineering management -- the NRC personnel stated that it appears there is a continuing ,

tendency to engineer away construction problems rather than enforce compliance to drawings and specifications.

f The Staff also asserts (Brief, p. 12):

The record also shows~ that as additional problems were raised in the operating license hearing by

, Mr. Walsh and Mr. Jack - hyle, a former pipe support analyst at Comanche Peak, Applicants provided testimony, and later affidavits setting forth technical grounds for disagreeing with positions of these two individuals. See m Tr. 3074-3341, 4768-4837, 5183-5305, 6017-6092.

While it is true that Applicants failed to prevail on these matters on the 4 basis of the technical grounds that they asserted (and therefore, at most, it might be suggested that they lack competence in pipe support ,

i~

engineering), it is misleading for Consolidated Intervenors to assert that J Applicants made no response to (or ignored) design problems as they were brought to their attention.

, i s The Staff intends this Board to-believe that TUEC made a good faith, albeit unsuccessful, effort to respond to the Walsh/

Doyle allegations, even though it did so when confronted with them in the hearing. However, even in the hearing TUEC was less than thorough and reflected an unwillingness to come to grips with the problems raised by two of its former engineers.

The ASLB found (Memorandum and Order (Quality Assurance for Design), LBP-83-81 (12/28/83), slip op. p. 1-2):

The record before us casts doubt on the design quality of the

Comanche Peak Steam. Electric Station (Comanche Peak), both because the Texas Utilities Generating Company, et, t al. (applicant) has not i

demonstrated the existence of a system that promptly corrects design deficiencies and 'because our record is devoid of a satisfactory explanation for several design questions raised by the Citizens Association for Sound Energy (CASE).

• * * * .i The concerns that led to this decision were introduced into the proceeding by two engineers, Mark A. salsh and Jack Doyle, who worked i for applicant for a combined total of less than two years. During that ti'me , they acqui red doubts that they have brought to the Board's attention. cause of the limited ability of these two individuals, to observe deficiencies in such a macunoth undertaking as the construction of a nuclear plant, the failure to provide logical explanations for several of their allegations raises questions about the adecuacy of design of the entire plant.

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The Staff asserta (Brief, p. 13):

Consolidated Intervenors have carefully presented (and the picensing Board has relied upon) extracts of information from the operating license proceeding while ignoring other record information showing that there was an response by Applicants at the time the deficiency was identified. For virtually every report, audit or finding referenced in Appendix B, there is information showing Applicant acknowledgment and response to the criticisms in those repohts. /

The Staff intends this Board to believe that TUEC has been fully responsive to past criticism. But the Staff concluded in SSER-ll (p. P-33):

With respect to follow-up corrective action for previous findings cited against the audit program by NRC and TUEC consultant audit / inspection teams, the TRT found TUEC's corrective action followup to be not fully effective.  !

In 1982 the,NRC Construction Appraisal Team concluded that TUEC was not properly recording non-conformances:

4. Findings also indicate a number of instances where nonconforming conditions were identified however, various methods (e.g., punchlists, inspection reports, verbal, and other informal methods) were used to address and resolve these nonconformances. These methods do not comply with requirements to identify nonconforming conditions and provide corrective actions to prevent recurrence.

Yet in 1985 SSER-ll documented that the same problem still existed (p. P-31):

The TRT QA/QC Group also noted that approximately 40 different forms and re-ports (other than NCRs) were used for recording deficiencies. Many of these forms and reports did not appear to provide information entry into the Correc-tive Actior. System to prevent problem recurrence.

i

e, -

p Obviously, time and space limitations prevent us from providing complete rebuttal to each and every Staff statement.

This fuller analysis of the evidence must wait until the  ;

evidentiary hearing (at which time it will be interesting to see who calls as witnesses the technically competent members of the Staff who support the bases for the contention --

the Staff's attorneys or consolidated Intervenors' attorneys).

I I

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4 'co I UNITED STATES NUCLEAR REGULATORY COMMISSION gg g 7;;

yW' Before the Atomic Safety and Licensing Appeal Board

'E6 DEC 16 R2:34 In the Matter ot )

)

TEXAS UTILITIES GENERATING COMPANY, ) Dkt. Nos. [kkj48-CPAY ;1 et al. ) anANC-

)

(Comanche Peak Steam Electric )

Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of CONSOLIDATED INTERVENORS' OPPOSITION TO APPEAL OF CONSOLIDATED OPPONENTS were served today, December 12, 1986, by first class mail, or by hand where indicated by an asterisk, and by Federal Express where indicated by two asterisks, upon the following:

Admi'nistrative Judge Peter Bloch U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Walter H. Jordan Carib Terrace 552 North Ocean Blvd.

Pompano Beach, FL 33062 Dr. Kenneth A. McCollom 1107 West Knapp Stillwater, OK 74075 Elizabeth B. Johnson Oak Ridge National Laboratory P.O. Box X, Building 3500 Oak Ridge, TN 37830 Nicholas Reynolds, Esq.

Bishop, Liberman, Cook, Purcell & Reynolds 1200 17th Street, NW Washington, D.C. 20036 I

.gs oI .

Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Geary S. Mizuno, Esq.

Office of Executive Legal Director U.S. Nuclear Regulatory Commission 7735 Old Georgetown Road, 10th floor Washington, D.C. 20555 Thomas G. Dignan, Jr.

Ropes & Gray 225 Franklin Street Boston, MA 02110 Alan S. Rosenthal, Chairman Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. W. Reed Johnson Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Thomas S. Moore, Esq.

Atomic Safety L Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

/

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ANTHONY Z g SMAN .\

_. __ _ _ __ _ - ,_