ML19347F109

Motion for Clarification of Commission 800922 Order & Suggestion of Directed Certification.Inclusion of Issue of Remedial Action in Commission Ordered Expedited Hearing Violates Order.Certificate of Svc Encl

ML19347F109
Person / Time
Site:	South Texas
Issue date:	05/14/1981
From:	Coy P Citizens Concerned About Nuclear Power, INC.
To:	NRC COMMISSION (OCM)
Shared Package
ML19347F110	List: ML19347F109 ML19347F111 ML19347F112
References
NUDOCS 8105150259
Download: ML19347F109 (5)

Text

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• . . usua UNITED STATES b NUCLEAR REGULATORY COMMISSION 2-I'iAY 14 ISO'

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.. Of0ce of the Sec.

Decke%e & Ser.

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/f in the Matter of ) 4 . .,

HOUSTON LIGHTING AND POWER CO. Docket Nos.

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(South Texas Project, Units 1&2) )

MOTION FOR CLARIFICATION OF COMMISSION'S SEPTEMBER 22,1980 ORDER AND SUGGESTION OF DIRECTED CERTIFICATION UNDER 10 CFR SECTIONS 2.718(1) & 2.786 This Motion presents for decision by the Commission whether the Commission's September 22, 1980 Order, 12 NRC 281, has been correctly implemented by the licensing board below. By its order of September 22,1980 the Commission granted alternative relief to Intervenors' request for a hearing on the April 30 Order to Show Cause by ordering the licensing board to issue an early and separate decision on the following issue:

whether the licensee's abdication of responsibility and knowledge during the construction phase of the South Texas Project, if proven, should result in the denial of the operating license.

By its December 12, 1980 Second Prehearing Conference Order the Board, over objection by the Intervenors, added the following contention, "as a result of the Commission's Memorandum and Order dated September 22,1980:"

Issue B. Has Houston Lighting and Power taken sufficient remedial steps to provide assurance that it now has the managerial competence and char'acter to operate the South Texas Project safely.

l By order dated April 16,1981 the Atomic Safety & Licensing Appeal Board upheld this decision ~ against challenc_e by Intervenors that the Commission's order requires the Board to determine 0 whether the Applicant's past acts form an indeprdent and ol suff icient reason to deny an operating license irrespective of C

8105150.259 g

4 any remedial action taken as a consequence of the Show Cause Order. The Appeals Board stated:

'"If indeed the Board's specification of issues is at odds with the Commission's direction and ultimately causes harm to intervenors, they will have every opportunity to challenge the Board's partial initial decision - issued after the hearing -

on appeal."

But the Board's statement of the issues affects the very structure of the hearing. See generally prefiled testimoy of NRC Staff dated 4/23/81, highlighting " corrective actions." At the same time the issue of whether remedial actions should be taken into account after violations such as those found in the Show Cause Order has brought the character of the license ?

applicant into question, is an important question of law and policy.

Intervenors contend that the inclusion of the issue of remedial action in the Commission ordered expedited hearings is incorrcct and in violation of the Commission's September 22, 1980 Memorandum and Order for the following reasons:

1. The Board confuses the issue of the ultimate safety of the reactor with the issue of the character of the applicant.

Whereas remedial acts may have a substantial impact on safety defects, character is less mutable. A careless or unreliable person does not transform his character merely by conpensating or remedying the damages no has inflicted on others. The immediate damage may be remedied but the underlying character defect remains. The Board ignored this crucial difference between character defects and mere defects in construction. See e.g. the Board's heavy reliance for its decision on 10 CFR 550.55(e) and 82.201 (a) in its very brief discussion of this matter, Second Prehearing Conference Order, Dec._2,1980,p.4.

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2. The Board's introduction of the new issue of remedial acts skews the hearing away from its intended focus on past acts involved in the Show Cause Order, and the broader implications of these acts for the kind of character required of an applicant for a license to operate a nuclear power plant. Instead of focusing on the meaning of the licensee's past acts that appear inconsistent with the required character, the hearing will concentrate on the licensee's plans to. prevent future manifestations of the kind of problems which are indications of underlying character problems. But the Commission!s September 22,1980 order was not intended to provide a hearing at which the adequacy of remedial action would be adjudicated. Rather it j intended to provide an adjudicatior. of the more fundamental, underlying problem of character. .

3. Remedial acts imposed on the licensee after repeated inspections and reprisals by the NRC are wholly irrelevant to the issue of assessing character. Such remedial action is routine, and can in no way reflect upon such attributes as carefulness, reliability and responsibility which are essential for an NRC license-holder.

4. It is premature to consider remedial acts at the Commission-ordered expedited hearing when most of these acts remain pro-spective only. The purpose of the early hearing was to determine whether the licensee has displayed surh lack of character as to be disqualified from carrying on with the project. There is no

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need for an early hearing to display plans for remedying past acts or to discuss NRC-compelled and still incomplete undertakings to repair defects. After all such plans have been translated into concrete and completed remedial actions

. . 4 there will be ample time for a hearing to consider the adequacy of those remedial actions for assuring the safety of the reactor. But the introduction of these issues int)

^

a hearing on character, which is being held on an expedited basis only because of the disqualifying naturo of the allegations, can only serve to distort the original purposes of that hearing while serving no useful purpose of its own.

These issues have been discussed more fully in a brief attadhedito the Notice of Appeal filed with the Commission on March 22, 1981, as well as in Intervenor's Brief on " Character."

The important questions of law and policy which this Motion, supported by the arguments contained in the mentioned briefs, presents for resolution by the Commission are:

1. Does the inclusion of issues concerning remedial actions in the Commission-ordered hearing on the character and competence ramifications of the Show Cause Order so distort the purpose of that hearing as to violate the Commission's September 22, 1980 order?

2. Did the Commission intend the Board to reach a determination of whether, irrespective of any remedial acts by the licensee, the character and competence ramifications of the Show Cause Order should constitute independent and sufficient cause to deny the operating license?

Intervenor respectfully submits that the Commission should k

at this time clarify the intent of its September 22, 1980 order so that the hearing to be held by the Board pursuant to the order is conducted in such a nanner as to carry out the purpose of that order. . .

Respectfully submitted R. Hager /

Of counsel A Pat Coy, form itizens Concerned About Nuclear Power

CERTIFICATE OF SERVICE I hereby certify that the foregoing MOTION FOR CLARIFICATION OF COMMISSION"S SEPTEMBER 22,1980 ORDER AND SUGGESTION OF DIRECTED CERTIFICATION UNDEN 10 CFR SECTIONS 2.718(1) & 2.786 has been served to the following by deposit in the U.S. Mail postage prepaid on this // day of May 1981 k

Pat Coy [

Samuel J. Chilk, Secretary Jack R. Newman Nuclear Regulatory Commission Lowenstein, Newman, Reis,& Axelrad 1717 H Street 1025 Connecticut Ave NW Washington, D.D. 20555 Washington D.C. 20036 ebf e Executive Legal 0

k & bo t r Regulatory Commission 3000 One Shell Plaza U.S !uc Houston TX 77002 Washington 20555 Brian E. Berwick Esq.

ockedng & SeMce Secdon

• Offic e of the Secretary Assistant Atty. General U.S. Nuclear Regulatory Commission Environmental Protection Div. Washington D.C. 20555 P.O. Box 12548 .'apitol Sta.

Austin TX 7871'.

Mrs. Peggy Buchhorn Executive Director Citizens for Equitable Utilities, Inc.

Rte 1, Box 1684 Brazoria TX 77422

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