ML20137U978

Response in Support of Pending Requests for Imposition of Fine,For Suspension of Const Activities & for Hearing on Application to Renew Cp.Certificate of Svc Encl

ML20137U978
Person / Time
Site:	Comanche Peak
Issue date:	02/14/1986
From:	Roisman A Citizens Association for Sound Energy, TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
To:	NRC COMMISSION (OCM)
Shared Package
ML20137U953	List: ML20137U948 ML20137U978
References
OL, NUDOCS 8602190391
Download: ML20137U978 (10)

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000(ETED UNITED STATES- USNRC NUCLEAR REGULATORY COMMISSION Before the Commission OfflCE F 2't t ia '

In the Matter of ) 00CKETING '* M ' C BRANCH

)

TEXAS UTILITIES GENERATING COMPANY, ) Dkt. Nos. 50-445-OL et al. ) 50-446-OL

)

(Comanche Peak Steam Electric )

Station, Units l' and 2 )

CASE REPLY IN SUPPORT OF ITS PENDING REQUESTS 1

Stripped of all rhetoric, Staff and Applicants argue that, the construction permit extension having already been issued without notice, opportunity for hearing, or hearing, there is no relief to which CASE is entitled except, at best, a hearing after the. fact and while construction continues. This argument is E%(

based on two demonstrably false premises:

1) CASE suffers no injury if construction continues and the hearings occur after the grant of the' extension;

2) The Atom-c Energy Act does not require that any hearing be held before issuance of a construction permit for which Staff asserts (without evidence or reasoning)

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Staff asserts that its 2/5/86 letter to Applicants was mailed to CASE and the parties on 2/7/86. That is not true, and Staff knows it. As Exhibit 1 to our 2/11/86 filing clearly demonstrates, that letter was not mailed until 2/10/86.

Moreover, what justification exists for the two-day delay Staff admits occurred except that Staff was seeking to forestall any action'by CASE to halt the issuance of the amendment in advance.

Such a devious intent seems particularly likely since Staff now essentially argues that, since the amendment is already issued, CASE has no effective remedy.

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that there is no significant hazard consideration.

The facts of this~ case and relevant case law, ignored by Staff

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and Applicants, refute both propositions.

1. Irreparable Injury If, as the evidence. cited by CASE demonstrates, TUEC is not building this plant with a proper design, is not building it competently, and is not building it with a proper QA/QC program, then its current construction activities directly conflict with the Atomic Bnergy Act mandate, the findings uponn which its construction permit _was issued, NRC regulations, and the public interest. If these failures are insufficient to prevent continued construction, then what is the basis for refusing to allow construction to begin until a construction permit has been issued, for Staff decisions to stop work, or for issuance of orders under v2.206? What validity is there to the mandates related solely to construction such as design criteria (10 CFR Part 50, Apendix A), QA/QC for construction (10 CFR Part 50, Appendix B)? Should an applicant decide to ignore all of this and wait for an. operating license hearing to be approved, what power does the Commission have to stop it? Staff draws a two- ,

edged sword, the consequences of which it would not wish to endure.

In addition, the failure to provide hearing rights when, as here, significant issues regarding failure to comply with NRC regulations are raised (none of which Staff or Applicants rebut on the. merits) has been deemed sufficient to overturn a e

Commission action and a return to the status quo that existed before the illegal action was taken. Union of Concerned Scientists v. U.S. Nuclear Regulatory Commission, 735 F.2d 1437 (D.C. Cir., 1984); Union cg[ Concerned Scientists v. Nuclear Regulatory Commission, 711 F.2d 370 (D.C. Cir., 1983); and Sholly

v. Nuclear ~ Regulatory Commission, 651 F.2d 780-(D.C. Cir., 1980)

(per curiam), rehearing denied 651 F.2d 792 (1981), vacated on other grounds 459 U.S. 1194 (1983), vacated and remanded on 2

grounds of mootness, 706 F.2d 1229 (1983).

The Commission has held that construction activities do

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involve significant hazard considerations and that construction can be halted where Commission regulations have been violated.

- Cincinnati Gas i Electric (Zimmer), CLI-82-33 (11/12/82); Nuclear Engineering Co., Inc. (Sheffield), CLI-79-6, 9 NRC 673, 676-77; see also Gulf States Utilities (River Bend), correspondence between Union of Concerned Scientists and Victor Stello (8/18/80; 10/6/80) and subsequently between Chairman Ahearne and Victor Stello in the same matter.

Nor is it immaterial to safety that TUEC is allowed to continue building this plant in violation of the NRC regulations.

2 There.is no.way around the Sholly decision. Although vacated,the D.C. Circuit continues to cite it. See, e.g., Union of Concerned Scientists v. U.S. Nuclear Regulatory Commission, Asu ra, and San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir., 1984), rehearing en banc granted in part not relevant here and portion of original opinion vacated, 760 F.2d 1320 (1985). In addition, the reasoning is even stronger today because Congress has had to amend 42 U.S.C. $2239 to explicitly allow amendments to be issued for operating licenses without a prior f'sring even if a no-significant-hazard finding is made.

The lan3aage requiring that amendment for operating licenses is the same language for construction permit amendments. Staff's disingenuous argument to avoid the " bad faith" label of San Luis Obispo, id., won't sell.

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4 The Commission's new backfit' rule, 10 CFR $50.109, makes an effort to require new work or rework on a plant substantially I

more difficult and allows inclusion of the economic costs of the proposedichanges.- Applicants here are proceeding without any approvals to reinspect, redesign, and rework this-plant and at 1

this stage it is unclear whether and to what extent they may seek the shelter of the backfit exception to avoid Staff or ASLB rejection of-their work.

CASE is entitled to participate in the process by which the decision on whether and under what conditions an extension to the construction permit will occur. A hearing after the fact is not 3

a substitute for that right.

2. The Right to a Hearing According to Applicants and S taff, there is no right to a

. hearing prior to issuance of an amendment to a construction permit where there is a Staff finding of no-significant-hazard i consideration. This argument not only ignores Sholly and the UCS 4

cases, but ignores the structure of the Act. In 42 U.S.C.

! 3 Although Applicants assert a construction halt now will injure them, that is only so if the construction work is acceptable.

If, as th'e evidence before the Commission demonstrates, the construction work.is all wrong, Applicants and/or their . .

ratepayers (including CASE members) will suffer substantial '

financial injury. The . time to decide whether construction and design are acceptable and, if not, what kind of reinspection and rework and NRC oversight will be required is now, not after the

, work is done.

4 The Cuomo v. NRC case, No. 84-1264 (D.D.C., slip op. April 25, 1 1984),.is also compelling. There the irreparable injury alleged was the absence of adequate time to prepare for the haering.

Operation of the plant after the truncated hearing was only speculative. The immediate harm was inadequate opportunity to present a case. Here there was no opportunity.

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32239, Congress initially assures that in any proceeding for; amending a license the NRC "shall grant a hearing upon the

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request of any [ interested] per' son." It also provides that if a construction permit. hearing has been held and "in the absence of

-a-request" for another hearing the Commission can issue an amendment to a construction permit provided it gives 30 days notice in the Federal Register. Finally, it provides that the notice may be avoided if there is a determination that there is no-significant hazard consisderation. At no time'does the Commissionfhve the right to. reject a request for a hearing that precedes the amendment. Such a request, regardless of the existence of 30 days notice, triggers the guaranteed right to a hearing. Neither Staff nor Applicants contradict this basic statutory structure. The issue they address is whether a hearing must be held before an amendment is issued if no request is received before the amendment is issued. This is not such a case.

The Staff and Applicants' argument would strip 42 U.S.C.

92239 of all meaning by converting'the proceeding for issuance and amendment of a construction permit and operating license into a meaninsless post hoc review of an already issued permit, i

license, or amendment. According to their argument, the proceeding'goes on after the action is taken. Thirty years of AEC/NRC practice and court decisions reject that strained view.

CONCLUSION l In Union of Concerned Scientists v. Nuclear Regulatory Commission, supra, 711 F.2d at 381, the court noted in reference to a strained NRC interpretation of its regulations:

this interpretation does violence to the language of the rule and, as Judge John Sanborn once remarked, gives the regulation a

" curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover." Lynch v. Alworth-Stephens Co., 294 F. 190, 194 (8th Cir. 1923)

(quoted in Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370, 45 S.Ct. 274, 276, 69 L.Ed. 660 (1925)).

This language is particularly apt here where the Staff and Applicants argue that a statutorily guaranteed right to a i

hearing prior to issuance of an amendment to a construction permit is the same as a hearing held after the amendmennt is issued and while construction continues. Here the attempt to evade the clear statutory requirement is sufficiently bald that neither ingenuity, acuteness, nor a powerful intellect could be implicated. What we have is lawlessness, both necessitated and justified by the failure of TUEC to meet the most rudimentary NRC regulatory requirement -- that no construction may be pursued in 5

the absence of a construction permit. 10 CFR 650.10(b).

5 We do not address here the validity of the Commission I regulation allowing construction to continue after the expiration of a construction permit if application fcr an extension is s received before expiration. The provision is certainly cf doubtful validity where, as here, there is a strong opposition to  ;

the requested extension resting on substantial evidence. We also do not reargue the issue of the irrevocable expiration of the construction permit on August 1, 1985, but of course we do reurge it. Applicants and Staff brush over the crucial statutory language in $319(b) of the Communications Act which gives the FCC general discretion to extend completion dates plus the good cause extension given to the NRC. It is the general discretion language on which the court relies in Mass Communications, Inc.

v. FCC, 266 F.2d 681 (D.C. Cir., 1959), cert. denied, 361 U.S.

828 (1959). It is also not irrelevant that the principal issues I

Respectfully submitted, D W --

ANTHONY Z. IS Trial Lawyer for blic Justice 2000 P Street, NW, #611 Washington,-D.C. 20036 (202) 463-8600 Counsel for CASE Dated: February 14, 1986

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involved before the FCC do not include the possible construction of misdesigned and unsafe nuclear power plants.

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February 14, 0 M TED 1986 0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 16 FEB 18 40 47

, Before the Commission g(FICE OF n. iita CNETING & stgy,c;'

BRANCH

( In the Matter of )

l

)

TEXAS UTILITIES GENERATING )

COMPANY, et al. ) Docket Nos. 50-445-OL

) and 50-446-OL l (Comanche Peak Steam Electric )

Station, Units 1 and 2) )

l CERTIFICATE OF SERVICE  !

By my signature below, I hereby certify that true and correct copies of CASE's Motion for Leave to File a Reply and Reply in Support of Its Pending Requests have been sent to the names listed below this 14th day of February 1986, by: Express mail where indicated by *; Hand-delivery where indicated by **;

and~First Class Mail unless otherwise indicated.

Administrative Judge Peter B. Bloch U.S.-Nuclear Regulatory Commission Washington, D.C. 20555 Herbert Grossman Alternate Chairman ASLB Panel .

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Kenneth A. McCollom, Dean Division of Engineering, Architecture and Technology Oklahoma State University Stillwater, Oklahoma 74074 Dr. Walter H. Jordan 881 West Outer Drive Oak Ridge, TN 37830

, Ellen Ginsberg, Esq.

U.S. Nuclear Regulatory Commission Washington, D.C. 20555

! Robert A. Wooldridge, Esquire I

Worsham, Forsythe, Sampels I & Wooldridge 2001-Bryan Tower, Suite 3200 Dallas, Texas 75201 Nicholas Reynolds, Esquire l Bishop, Liberman, Cook, Purcell & Reynolds 1200 17th Street, N.W.

Washington, D.C. 20036 Stuart Treby, Esquire Geary S. Mizuno, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing & Service Section**

office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Renea Hicks, Esquire Assistant Attorney General Environmental Protection Division Supreme Court Building Austin,-Texas 78711 Mrs. Juanita Ellis President, CASE 1426 S. Polk Dallas, Texas 75224 Mr. W.G. Counsil Executive Vice President Texas Utilities Generating Co.

Skyway Tower, 25th Floor ,

400 N. Olive Street Dallas, Texas 75201

Mr. Roy P. Lessy, Jr.

Morgan, Lewis & Bockius 1800 M Street, N.W.

Washington, D.C. 20036 Mr. Thomas G. Dignan, Jr.

Ropes & Gray 225 Franklin Street-Boston, Massachusetts. 02110 Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal Board RU.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. W. Reed Johnson Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

. Thomas S. Moore, Esq.

Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Nunzio Palladino, Chairman **

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Lando Zech, Commissioner **

f U.S. - Nuclear Regulatory Commission Washington, D.C. .20555 James Asselstine, Commissioner **

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Frederick Bernthal, Commissioner **

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ,

Thomas Roberts, Commissioner **

U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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'4 / W

' ANTHONY Z. IS=