ML20148S823

NRC Staff Motion for Reconsideration or Clarification of Order of 880405.* Licensing Board Order Has Four Consequences Which Are Inconsistent W/Longstanding Commission Practice & Procedures.Certificate of Svc Encl

ML20148S823
Person / Time
Site:	Comanche Peak
Issue date:	04/15/1988
From:	Johari Moore NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#288-6073 CPA, OL, NUDOCS 8804200031
Download: ML20148S823 (9)

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? Anril 15,' 1988

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In the Matter of )

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TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-OL COMPANY, ET AL. ) 50-446-OL

) 50-445-CPA (Comanche Peak Steam Electric )

Station, Units 1 and 2) )

NRC STAFF MOTION FOR RECONSIDEP.ATION OR CLARIFICATION OF ORDER OF APRIL 5,1988

1. INTRODUCTION On April 5, 1988, the Atomic Safety and Licensing Board (Licensing Poard) designated to preside over tho above-captioned proceedings denied  ;

Applicants' motion to consolidate the two proceedings. Memor ar,.dum and Order (Motion to Consolidate) ( April 5,1988) [herefnafter "Order"). For the reasons set forth below, the Licensing Board should reconsider its

order of April 5, 1988. In the alternative, the L! censing Board's order of April 5,1988 should be clarified.

II. BACKGROUND On March 8, 1988, TU Electric Company, lead Applicant for an operating license for the Comanche Peak facility, filed a motion to consolidate the Operating License and Construction Permit Amendment proceedings which are currently pending before the same Licensing Board. "Applicants' Motion to Consolidate Proceedings" (March 8, 1988)

[ hereinafter " Applica nts' Motion"] . The Staff supported Applicants' motion, "NRC Staff's Response in Support of Applicants' Motion to 8804200031 080415 PDR ADOCK 0500044S 1 0 PDR }$0

Consolidate Proceedings" (March 30,1988) [ hereinafter "Staff Response"].

Intervenor Citizens Association for Sound Energy (CASE) opposed the motion. "CASE's Answer to Applicants' 3/8/88 Motion to Consolidate Proceedings" (March 30, 1988). On April 5, 1988, the Licensing Board issued an order denying Applicants' motion. The Licensing Board re!!es on Intervenor's argument that until the Operating License proceeding is completed, and it is clear what mistakes were made either through admissions or Board findings , the motive for and repudiation of those mistakes should not be litigated. Order at 2. For the reasons set forth below, the Board should reconsider its order, or in the alternative, should clarify the order.

Ill. AP.GUg q A. The Licensing Board should reconsider its decision to deny A

J p,licants' motion for consolidation of the OL and CPA proceedinas The Licensing Board's Order has fou r consequences which are inconsistent with longstanding Commission practice and procedure.

These consequences are:

1. Unnecessary uncertainties are created concerning the status of ,

a construction permit after it has been determined that an operating license should issue:

2. Evidence taken in a construction permit proceeding which follows an operating license proceeding creates a situation which could result in reopening and relitigation of operating license Issues;

3. The operating license proceeding is turned into an on-the-permit extension record discovery proceeding for the construction proceeding; and

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4. Substantial delay is permitted in the completion of the construction permit proceeding contrary to the Commission's policy statement on the conduct of licensing proceedings. Statement of Policy on Conduct of Licensing Proceedings CLl-81-E,13 NRC 452 (1981).

First, the Licensing Board's order creates unnecessary uncertainties as to the status of the construction permit once the Licensing Board makes findings which would lead to the issuance of the operating license.

in the OL proceeding the Applicants must demonstrate that there is reasonable assurance that previously idendified deficiencies have been corrected, so that the plant's structures, systems and components will perform their intended safety functions. In determining whether there is ,

good cause for the extension of a construction permit, the Commission has decided that good cause exists if an appilcant can demonstrate that it has undertaken a policy to construct a safe plant which meets NRC require-ments. Texas Utilities Electric Company, et al._ (Comanche Peak Steam Electric Station), DLI-86-15, 24 NRC 397, 401-803 (1986). In the OL proceeding, the evidence will focus primarily on the adequacy of Appil-cant's corrective actions. In the CPA proceeding a two-part contention has been admitted. The evidence in that proceeding would focus on whether Applicants had an intentional policy of violating Commission regulations, and whether that policy has been discarded or repudlated.

In light of the Commission's decision in CL1-86-15, supra, the evidence in the OL proceeding and the evidence on the repudiation portion of the CPA contention would be the same. If the Licensing Board finds that Applicants have met their burden in the OL prc'ceeding, t' hen nothing remains to be litigated with respect to repudiation in the CPA proceeding.

Since both motive and lack of repudlation must be established to denv the

CP extension, there would be no need at all for a CPA hearing.

Consolidation would eliminate this uncertainty as to the status of the CP i

once the OL proceeding is completed.

Second, the Board's order creates a situat!on where evidence offered in the CPA proceeding could actually be an attempt to reopen and

, relitigate issues in the OL proceeding. The Licensing Board in its order 1

relles on Intervenor's suggestion that after the evidence has been submitted in the OL proceeding, a prehearing conference should be held I at which time CASE will designate the evidence on which it intends to

- rely in the CPA proceeding . 1 Order at 2. The Board relied on Intervenors' view that the CPA proceeding would be a relatively narrow proceeding focused on information beyond that presented in the OL proceeding relating to motive. Id. SI The result of the Licensing Board's order is to create a situation where it will be necessary to determine whether intervenor intends to present information which is clearly beyond the information which was or should have been presented in the OL proceeding, or whether the Inter venor is attempting to supplement itr. evidence on the Operating License issues. Efficiency in the conduct of the agency's business is not fostered by such arguments.

Consolidation would eliminate these rotential sources of inefficiency.

1/ Of course, if Applicants prevail in the OL proceeding then the

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designation of evidence to be heard in the CPA proceeding would serve no purpose. No CPA issues would remain to be litigated.

7/ It is not clear from the Licensing Board's Order that the scope of the CPA proceeding would, in fac t, be limited to a hearing on motive. Order at 2.

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Next, the Licensing Board's order makes the OL proceeding into an on-the-record discovery mechanism. The Licensing Board's reasoning

- does not take account of the existence of a specific contention in the CPA proceeding for which bases were provided. The Licensing Board interpreted this contention iti light of the stated bases. Texas Utilities Electric Company, et al. (Comanche Peak Steam Electric Sta-tion, Unit 1), LBP-86-36A, 24 NRC 575, 581 (1986). As both the Appil-cants and Staff have pointed out in their previous submissions to the Licensing Board, the evidence concerning these bases and the evidence in the OL proceeding would largely be the same. Applicants' Motion at 5-12; Staff Response at 6-9.

The result of the Licensing Board's order is to allow the OL

. _ proceeding to become a discovery mechanism for Intervenors to support their contention in the CPA proceeding. This result leaves it unclear as

l to the status of the bases for the CPA contention. For example, are i Intervenors to be allowed to expand their contention to include issues not raised in the bases fcr the CPA contention? The order of these proceedirigs could also lead to numerous disputes as to what evidence j

' should be admitted in the OL proceeding. Such disputes could be largely

. eliminated by consolidation of the two proceedings.

Finally, the result of the Licensing Board's order would be to l

substantially delay completion of the CPA proceeding, contrary to the L l

Commission's policy statement on the conduct of licensing proceedings. l Pursuant to that policy statement, proceedings are to be conducted as expeditiously as possible taking into consideration that the hearings are fair 'and produce a record which leads to a high quality decision. .

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13 NRC at 453. As discussed by the Staff, consolidation would elimi-nate such delay. For the reasons discussed above, the Staff requests that the Licensing Board reconsider its decision not to consolidate these proceedings.

B. In the event the Licer.strg Board denies the Staff's motion on reconsideration, the Board should clarify its order pertaining to the time for corrmencement of the CPA proceeding in its order of April 5,1988, the Licensing Board found persuasive CASE's suggestion that after the submission of the evidence in the OL proceeding, a prehearing conference should be held in which CASE would designate the esidence it intends to offer in the CPA proceeding. This statement is inconsistent with a later stateinent by CASE, relied upon by the Licensing Board, that one must await the outcome of the OL proceeding to determine what mistal<es have been made either through admissions or Board findings. This statement Implies that the 1

commencement of the CPA proce.eding must await the Board's decision in i

the OL proceeding. As discussed above, there would remain no CPA Issue to be heard if Applicants prevail in the OL proceeding. Moreover, l

the Board's order could result in the anomalous situation of approval of an OL while the CPA proceeding is still pending. The result could also be to <>ubstantially delay the completion of the CPA proceeding. The l

I Staff requests the Licensing Board to clarify its ruling as to at what j point after the OL hearings end, the CPA proceeding would commence.

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0 IV. CONCLUSION For the reasons set forth above, the Staff moves the Licensing Board for reconsideration of its April 5, 1988 oroer or, in the alternative, for clarification of tha!. same order.

Respectfully submitted, b$hN) _

Janice E. Moore Counsel for NRC Staff Dated at Rockville, Maryland this 15th day of April,1988 l

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DCLKEiED UNC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .ggggg BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Of f icp. of $ E r. : tlAe <

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In the Matter of ) N'M

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TEXAS UTILITIES ELECTRIC ) Docket Nos. 50-445-O L COMPANY, ET AL. ) 50-446-O L

) 50-445-CPA (Com1nche Peak Steam Electric )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of ""NRC STAFF MOTION FOR RECONSIDER-ATION OR CLARIFICATION OF ORDER OF APRIL 5, 1988" In the above-captioned proceeding have been served on the following by deposit in the United States mall, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mall system, this 15th day of April,1988:

Peter D. Bloch, Esq., Chairman

• Mrs. Juanita El: s Administrative Judge President, CASE Atomic Safety and Licensing Board 1426 South Polk Street U.S. Nuclear Regulatory Commission Dallas, TX 75224 Washington, DC 20555 Renea Hicks, Esc.

Dr. Kenneth A. McCollom Assistant Attorney General Administrative Judge Environmental Protect'en Olvision 1107 West Knapp P.O. Box 12548, Capital Station Stillwater, OK 74075 Austin, TX 78711 Elizabeth B. Johnson Robert A. Wooldridge, Esq.

Administrative Judge Worsham, Forsythe, Samples Oak Ridge National Laboratory & Wooldridge P.O. Box X, Building 3500 2001 Bryan Tower, Suite 3200 Oak Ridge, TN 37830 Dallas, TX 75201 l Dr. Walter H. Jordan Joseph Gallo, Esq.

l Administrative Judge Hopkins & Sutter i 881 West Outer Drive Suite 1250 Oak Ridge, TN 37830 1050 Connecticut Avenue, N.W.

Washington, DC 20036 l

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9 Billio Pirner Garde Mr. W. C. Counsli GAP - Midwest Office Executive Vice President 104 E. Wisconsin Avenue - B Texas Utilities Generating Company Appleton, WI 54911-4897 400 North Olive Street, L.B. 81 Dallas, TX 75201 William L. Brown, Esq.* Anthony Z. Roisman, Esq.

U.S. Nuclear Regulatory Commission Suite 600 611 Ryan Plaza Drive, Suite 1000 1401 New York Avenue, NW Arlington, TX 76011 Washington, DC 20005 Asst. Director for inspec. Programs William H. Burchette, Esq.

Comanche Peak Project Division Mark D. Nozette, Esq.

U.S. Nuclear Regulatory Commission Heron, Burchette, Ruckert P. O. Box 1029 6 Rothwell, Suite 700 Granbury, TX 76048 1025 Thomas Jefferson Street, N.W.

Washington, DC 20007 Lanny Alan Sinkin James M. McCaughy i

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Christic Institute GDS Assoc. Inc.

1324 North Capitol Street 1850 Parkway Pl., Suite 720 Washington, DC 20002 Marietta, GA 30067 Robert D. Martin

• Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Board Panel

• 611 Ryan Plaza Drive, Suite 1000 U.S Nuclear Regulatory Commission Arlington, TX 76011 Washington, DC 20555 Robert A. Jablon, Esq. Atomic Safety and Licensing Appeal Spiegel & McDiarmid Board Panel

• 1350 New York Avenue, N.W. U.S. Nucicar Regulatory Commission Washington, DC 20005-4798 Washington, DC 20555 Jack R. Newman, Esa. Robert 'M. Fillmore Newman & Holtzinger, P.C. Worsham, Forsythe, Samples Suite 1000 & Wooldridge 1615 L Street, N.W. 2001 Bryan Tower, Suite 3200 Washington, D.C. 20036 Dallas, Texas, 75201 Docketing and Service Section* Adjudicatory File

• Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel Docket Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington D.C. 20555 5 0$_0 NW l Janice E. Moore Counsel for NRC Staff

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