ML20049K078
| ML20049K078 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 03/25/1982 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | Citizens Concerned About Nuclear Power, INC. |
| References | |
| ISSUANCES-OL, NUDOCS 8203290381 | |
| Download: ML20049K078 (10) | |
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'02 M,'? 26 01 M7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:-
SERVED MAR 2 51937.
Cnarles Bechhoefer, Chairman Dr. James C. Lamb Mr. Ernest E. Hill
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In the Matter of
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HOUST0H LIGHTING AND
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Docket Nos. STN 50-498 OL POWER COMPANY, ET AL.
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STN 50-499 OL
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(South Texas Project
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Unitt 1 and 2)
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March 25, 1902
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MEMORANDUM AND ORDER p --
(Denying CCANP Motion.for Reconsideration; 2, /;/
of Schedule for Hearing Quadrex Matters)
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At the evidentiary hearing on February 10, 1982, Citizens Concerned f i
About Nuclear Power (CCANP), an intervenor in this operating-license proceeding, filed a motion asking us to reconsider in one respect the schedule we had established for examining the Applicants' handling and i
reporting to NRC of information appearing in a document known as the Quadrex Report.
That study 1/ was prepared by Quadrex Corporation, an independent consultant, at the behest of Houston Lighting and Power Co.
(HL&P) and analyzes the engineering practices and capabilities of Brown and
-1/ " design Review of Brown and Root Engineering Work for the South Texas Project", dated May 1981.
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PDR ADOCK 05000498 G
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Root, Inc. (B&R), the project's former design engineer. - CCANP's reconsideration motion is supported by Citizens for Equitable Utilities (CEU), another intervenor, but opposed by the Applicants and NRC Staff.
For j
the reasons whicn follow, we believe that the schedul,e we previously establisned will not only permit a more informed inquiry into the Applicants' handling and reporting of the Quadrex Report than the schedule proposed by CCANP but will do so with less duplication and at less cost to all of the parties.
Accordingly, we are denying CCAh!'s motion.
1.
Tne scnedule which CCANP seeks to modify was adopted by us at the prehearing conference on December 8,1981 (Tr. 9105, 9120-21).
The reasons i
for following that schedule were discussed at the conference (e_.g., Tr.
e_t seq.) as well as in our Fourth Prenearing 9046, 9063, 9064, 9076, 9082 t
Conference Order, dated December 16,1981 (at p. 5).
We divided the operating license proceeding int 6 three phases:
Phase I to include all testimony concerning certain past events (out excluding any aspects of the Quadrex Report), togetner with the organizational framework for continued construction; Pnase II to include "all aspects of tne Quadrex Report, including its commissioning, its findings, its submission to and handling by the Applicants, and Applicants' notification of tne NRC (including tnis Board)" (together with certain other issues not here pertinent); and Phase III to encompass other remaining issues.
CCANP would now have us modify l
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-2/ B&R has Deen dismissed as design engineer and nas been replaced in that capacity by Bechtel, Inc.
See LBP-81-54,14 NRC 918 (1981).
B&R has also withdrawn as the project's construction contractor and is being replaced by Ebasco Services, Inc.
See our Fourth Prehearing Conference Order, dated December 16, 1981, and letter from Applicants to Licensing Board dated February 16, 1982.
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. this schedule to advance to Phase I our consideration of tne handling of the Quadrex Report by the Applicants, and their notification of tne NRC of this report.
CCANP would leave unchanged the scnedule for considering other
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dspects of tne Quadrex Report, such as its substantive findings and presumably its commissioning by the Applicants.
l 2.
CCANP's request for reconsideration is assertedly premised upon a development wnich occurred since the December 8,1981 prenearing conference--namely, the January 28, 1982 determination (by majority vote) of another licensing board to hear at an early date certain matters arising from tne Quadrex Report.
Houston Lighting & Power Co. (Allens Creek duclear Generating Station, Unit 1), Docket No. 50-466-CP, Memorandum and Order (Granting The Doherty Renewed Motion For Additional Evidence On TexPirg Additional Contention 31).3/ CCANP points to criticism in the Allens Creek opinion of certain HL&P witnesses in that proceeding who, subsequent to the time wnen the Applicants transmitted the Quadrex Report to this Board, testified on a matter to which (in the opinion of the majority of the Allens Creek Board) the Quadrex Report relates without mentioning that Report.
According to CCANP, the Allens Creek Board responded to not being informed about the Quadrex Report, to tne " inadequate testimony" of the HL&P witnesses (wno also have testified in this proceeding), "and to the seriousness of the Quadrex findings themselves".
CCANP asks us to reassess
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CCANP claims to have first learned of the Allens Creek ruling by virtue of a newspaper article dated February 6,1982, provided as Attachment 1 to its motion.
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. our earlier ruling in light of the "apparently unusual decision" of tne major ity of the Allens Creek Board.
CCANP goes on to ask us to reconsider certain policy implications arising from f ailure to consider the nandling of the 'Quadrex Report in Pnase I--in terms of the findings we must make concerning the Applicants' character and the effect of an alleged deliberate withholding of information (tne Quadrex Report) on those findings.
CCANP believes that the handling of the Quadrex Report is readily segregable from the suostance of that report and could oe considered tnrough only three or four witnesses.
CEu at the December 8,1981 prehearing conference nad originally f avored deferral of all aspects of the Quadrex Report until a later pnase of this proceeding.
Indeed, CEU's arguments were one of the primary reasons for our deferring those issues.
It has now modified its position and supports CCANP's motion.
CEU explained that it still wishes to defer the suDstance of the Quadrex Report to a later phase out originally had judged that consideration of the handling of the Report would inevitaoly involve its substance. Now it states that CCANP's arguments have convinced it that its earlier premise was incorrect, and that the hearing of the handling question at this stage is essential to determine whether CCANP's serious i
cnarges--aniounting in effect to allegations of a conspiracy to minimize tne importance of and to withhold the Quadrex Report from NRC--are correct or, if not, to " clear the air" and allow the project to proceed.
CEV would limit the extent of the Pnase I handling inquiry by considering only HL&P's handling of the Report during the first 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> after its receipt (the i
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. period of time contemplated by 10 C.F.R. 9 50.55(e)(2) f ar determining whether certain matters snould be reported to NRC).
In opposing CCANP's motion, both the Applicants and NRC Staff rely on
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similar considerations. They emphasize the discretionary nature of scheduling decisions and attempt to demonstrate that our previous ruling was neither inappropriate nor prejudicial to CCANP's interests.
They refer to differences between tnis proceeding and tne Allens Creek proceeding, both in tenns of tne nature of the issues to be considered and the procedural posture of each case, which make the Allens Creek ruling inapplicable to the motion before us.
They also find no merit to tne public policy arguments advancea by CCANP and CEU.
Ine Applicants go on to assert that CCANP nas failed to undermine the rationale for our earlier ruling--i.e., that it is not possible to isolate effectively the handling of the Quadrex Report from its suostance. They point to portions of CCANP's pleading which, they claim, clearly demonstrate the inseparability of those two aspects of the Report. And they conclude that CCANP is thus trying to litigate the substance of the Report in both the first and second phases of this hearing.
For its part, tne Staff refers to certain Quadrex issues where the handling is, in its view, inseparable frota the substance.
In particular, it points out that whether certain matters are required to be reported to NRC depends in part on their substance and their conformance to the reporting standards appearing in 10 C.F.R. 950.55(e)(1)(i)-(iv). Finally, the Staff would have us deny the motion as untimely.
The Applicants note that it is untimely to tne extent
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. that CCANP relies on f acts which have not changed since the prehearing conference.
3.
As the Staff points out, we might De justified in dismissing the motion as untimely.
Our earlier ruling was made on IIecember 8,1981 and was recorded in our December 16, 1981 Fourth Prehearing Conference Order.S Under 10 C.F.R. s2.752(c), objections to a prehearing confer-ence order may be filed within 5 days after service of that order- _i_.e_., in this case, by December 28, 1981.
CCANP's motion was more than a month late and, to the extent it relied on f acts or arguments dealt with in the pre-hearing conference order, was untimely. Moreover, CCANP has made no attempt to demonstrate good cause for such untimeliness.
Nonetneless, we decline to dismiss the motion on timeliness grounds.
CCANP has relied to some extent on the January 28, 1982 ruling of the Allens Creek Board, and it filed its motion within 13 days of that ruling (and within 4 days of the newspaper account of that ruling Dy which CCAkP states tnat it first learned of the ruling).II Although we disagree with CCANP as to the relevance of the Allens Creek ruling to our consideration of the Quadrex Report, we find that CCAr4P's reliance on that ruling constitutes.
good cause for not rejecting CCANP's motion on timeliness grounds.
4.
On the merits, we find, first, that tne procedural posture of the Allens Creek proceeding, and the substantive issues at stake in that
-4/ On December 21, 1981, we issued an errata sheet to the December 16 Order which made no changes to those aspects of the Order which CCANP is asking us to reconsider.
i 5/ CCANP is not a party to the Allens Creek proceeding.
O proceeding (insofar as we can ascertain), are so different from the issues in this proceeding as to make tne January 28, 1982 ruling of the Allens Creek Board irrelevant to any consideration of when we should senedule hearings on any aspects of tne Quadrex Report.
As th'e Staff points out, the Allens Creek record was near to being closed when that Board first learned of the Quadrex Report.
That Board was apparently confronted with either hearing evidence on the deport at an early date or rendering a final decision wnicn excluded matters which at least a majority of that Board determined were pertinent to matters upon wnicn it had to rule.
By contrast, this proceeding is still
'.t an early stage.
And although our Pnase I decision will be rendered prior to our consideration of Quadrex matters which could have a bearing on that decision, that does not mean that Quadrex issues will escape our review.
For as we have expressly ruled, any findings we make at tne conclusion of Phase I will be subject to change in Phase II to reflect the information in and reviews of the Quadrex Report.
Fourtn Prehedring Conference Order, p. 5.
We also again reiterate that our Pnase 11 nearings and decision will be held earlier than the normal operating license review (equivalent to our Phase III hearings).
As for the policy questions to which CCANP and CEU direct our attention, we were well aware of, and duly considered, those questions in reaching our earlier ruling.
Further, we do not mean to denigrate any of tnose policy considerations.
It is important to determine whether HL&P has been forthright in its dealings with the Commission, including this Board.
It ;is, important to determine whether the Applicants have satisfied both the letter and tne spirit of various applicable reporting requirements.
And it
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is, desirable to " clear the air" on these matters at an early date.
Furthermore, there is no question but tnat the Applicants' handling of the Quadrex Report could affect any determination we make op their character to
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design, construct and operate the South Texas facility.
The choice we made in December,1981, and our reaffirmation of that choice in this ruling, is predicated upon otner considerations which we judge to outweigh the matters raised by CCANP and/or CEU. As we suggested in our Fourth Prehearing Conference Order (at p.4), we originally shared some of the same concerns as CCANP and CEU now raise.
We still do. But we were convinced inen, and we still believe, that the substantive aspects of f
j the Quadrex Report will be determinative, in part, of whether the Report was l
nandled properly by HL&P (including whether the NRC was advised of the Report in a proper inanner).
Any exploration of that subject in Phase I would likely be incomplete, might well be misleading or inaccurate, and r
would not likely lead to findings in which wE could place much confiaence.
Sucn findings would have to be subject to later modification, just as will the findings we make in Pnase I under the division of issues we nave already approved.
Lack of finality would still be present, freignted with the
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additional uncertainties resulting from admittedly incomplete l
r investigations.
In that connection, we would expect the Staff on its own to 1
I be undertaking an exploration of HL&P's handling of tne Quadrex Report--a t
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. necessary predicate, in our view, to our effective consideration of these matters.I!
Finally, we again reiterate our conclusion that holding separate nearings on the procedural ana substantive aspects of the Quadrex Report would lead to duplication and inefficiency. Fourth Prehearing Conference Order, p. 5.
Separate nearings would of necessity involve separate and to some extent duplicative consideration of a number of issues--if only to determine whether certain deficiencies pointed to by the Quadrex Report are the type as to which the Commission's reporting requirements are applicable.
As the Staff points out, conservation of the resources of the Board and parties is important and here militates against bifurcating the hearing of any quadrex-related issues. See Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-277,1 NRC 539, 547 (1975);
cjf. Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2),
nLAB-Sb3,10 NRC 12,14 (1979).
In conclusion, the Appeal Board has recognized that, under 10 C.F.R.
b2.718(e), the setting of a hearing schedule is, in the first instance, in tne sound oiscretion of a Licensing Board.
See, e.jl., Houston Lignting &
Power Co. (Soutn Texas Project, Units 1 and 2), ALAB-637,13 NRC 367, 370-71 (1981); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 HRC 179,188 (1978).
We have
-b/ We understana tnat the St:ft is undertaking such an investigtion.
Tr. 9006.
At a recent hearing session, a Staff witness indicated that a failure of an applicant to adhere to certain reporting requirements constitutes a severity level 3 item of noncompliance (within a scale of 6 severity level categories).
Tr. 10012.
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O considered all of the matters raised by CCANP and CEU.
We recognize that some of those matters inignt warrant a hearing on the nandling of the Quadrex deport at an earlier date than is likely under our previously adopted d
scne dul e.
But against tnose considerations we n..? D'alanced tne matters which we have discussed in this opinion.
We continue to believe that the calance we originally made is more appropriate than tne one urged on us now by CCnNP and CEU, and that neither of those parties (or the public interest) will be prejudiced thereby. Accordingly, we adhere to our earlier ruling.
2 For the foregoing reasons, it is, tnis 25th day of March, 1982 l
ORDERED Inat CCANP's motion for reconsideration of one aspect of our Fourth Prehearing Conference Order is denied.
FOR THE ATOMIC SAFETY AND
~i LICENSING BOAdD ade n ) ).a
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Charles Bechnoeter, Cnairmp ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland 7
this 25tn day of 1982.
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