ML20052B323
| ML20052B323 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 04/28/1982 |
| From: | Gutierrez J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8204300288 | |
| Download: ML20052B323 (11) | |
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UNITED STATES OF AMERICA
'g NUCLEAR REGULATORY COMISSION
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In the Matter of HOUSTON LIGHTING AND POWER COMPANY Docket Nos. 50-498 ET AL.
50-499 (South Texas Project, Units 1 & 2)
NRC STAFF RESPONSE TO APPLICANTS' MOTION FOR ACTION BY THE COMISSION IN LIGHT OF THE APPEAL BOARD'S ORDER OF APRIL 15, 1982 Jay M. Gutierrez Counsel for NRC Staff April 28, 1982.
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UNITED STATES OF AMERICA
'iUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of HOUSTON LIGHTING AND POWER COMPANY )
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50-499 (South Texas Project, Units 1 & 2)
NRC STAFF RESPONSE TO APPLICANTS' MOTION FOR ACTION BY THE COMMISSION IN LIGHT OF THE APPEAL BOARD'S ORDER OF APRIL 15, 1982 1.
INTRODUCTION On April 20, 1982, the Applicants filed two (2) pleadings with the Comission: " Motion for Actions by the Comission in Light of the Appeal Board's Order of April 15, 1982" (Applicants' Motion) and " Applicants' Petition for Review of Appeal Board's Order of April 15, 1982" (Applicants' Petition). Applicants' Petition seeks Comission review of the Appeal Board's April 15, 1982, Order in the South Texas proceeding disqualifying Administrative Judge Ernest Hill.1/
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10 C.F.R. 9 2.786(b)(3,+ states in relevant part:
"[a]ny other party to the proceeding may, within ten (10) days after service of a petition for review, fih an answer opposing Comission review.
... No answer in support of a petition for review or further replies to answers will be entertained by the Comission."
The Staff does not intend to file a brief in opposition to the Applicants' Petition for Review.
. Applicants' Motion seeks additional interim relief pending Commission review of the Appeal Board's disqualifying order in light of certain actions taken by the Licensing Board in response to that order.
Specifically, the Applicants request that the Commission:
(i) direct Judge Bechhoefer and Judge Lamb to proceed with the scheduled hearings in May and June under the quorum rule; (ii) order an expedited briefing schedule should the Commission determine to review the Appeal Board's order; (iii) direct the Appeal Board to expedite the issuance of its memorandum in support of its order; and (iv) instruct the Chairman of the Atomic Safety and Licensing Board not to appoint a replacement for Judge Hill until the Commission determines whether to review the Appeal Board's order.
II. BACKGROUND On September 22, 1989, the Commission ordered this Licensing Board i
to hold an expedited hearing on the QA/QC issues in this operating license proceeding and to issue an early and <,eparate decision on that aspect of the application.2/ Pursuant to the Commission directive, a f
prehearing conference was held in November 1980, and an order was prepared i
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Houston Lighting and Power Co. (South Texas Project, Units 1 & 2),
CLI-80-32, 12 NRC 281, 291-2 (1980).
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- wherein the issues of the expedited portion of the operating license proceeding were articulated and a schedule was established for discovery and prehearing matters.3__/ The evidentiary hearing commenced May 4,1981.
This hearing has continued over the past year to the present and has generated over 10,000 transcript pages.
On September 24, 1981, Houston Lighting and Power (HL&P) informed the Board and parties that Brown and Root had been dismissed as the architect-engineer of the South Texas Project and that Bechtel Power Corporation has beenawardedthatfunction.AI On September 28, 1981, HL&P notified the Board and parties of the existence of a review of Brown and Root design engineering prepared by the Quadrex Corporation (the Quadrex Report).
Due to these developments a fourth prehearing conference was held on December 8, 1981.
In its Fourth Prehearing Conference Order of December 16, 1981, the Board determined to further divide this hearing into three phases:
the current expedited phase previously ordered by the Comission together with certain topics relative to the transition of functions; a second phase on all aspects of the Quadrex Report following Bechtel's analysis and the Staff's review of that report; and finally, a hearing l
session at a time nearer to the project's completion date on emergency planning and any other remaining issues.
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See, Second Prehearing Conference Order, December 2,1980.
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Subsequently, the Board and parties were advised that Brown and Root would be replaced as the constructor by Ebasco Services, Inc.
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On March 9, 1982, with approximately two weeks of hearing required to close the record on the expedited phase of the application, Citizens Concerned About Nuclear Power (CCANP) filed a motion for Administrative Judge Ernest E. Hill to recuse himself from further participation in this proceeding. The motion and supporting affidavits challenged Judge Hill's impartiality.
By an Order dated April 13, 1982, the Licensing Board, sitting as a quorum, denied CCANP's Motion as without merit.
In addition, Judge Hill declined to recuse himself for reasons set forth in a separate statement attached to the Licensing Board's Order.
In accordance with 10 C.F.R. 5 2.704(c), the Licensing Board referred its decision to the Appeal Board to " determine the sufficiency of the grounds alleged."
In an Order of April 15, 1982, the Appeal Board concurred with the Licensing Board that CCANP's motion and supporting affidavits did not provide a sufficient grounds for Judge Hill's recusal; however, the Appeal Board went on to say that certain of the comments contained in Judge Hill's separate statement gave rise to serious doubt respecting his ability to judge CCANP and its assertions dispassionately.
The Appeal Board set forth its reasoning behind that concl,usion in a memorandum issued April 21,1982.El On April 19, 1982, the remaining members of the Licensing Board, over the objections of both the Applicants and NRC Staff, cancelled the I
El See Houston Lighting and Power Compa y, et al. (South Texas Project, Units 1 & 2), ALAB-672, NRC (1982),
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evidentiary hearings set for the week of April 19, 1982, and deferred to a later date the determination of whether to hold the hearings currently scheduled for May and June until the " uncertainties concerning the dis-qualificationorderareresolved."E On April 20, 1982, the Applicants brought the instant motion directly before the Comission rather than the Appeal Board because it felt that it was essential for the Comission to step in at this time to provide the guidance and direction necessary to assure that these matters are resolved promptly and that no further unneccessary delay occurs. Motion at 3.7/
III. DISCUSSION In its motion, the Applicants ask the Comission to take the following action:
(1) Direct Chairman Bechhoefer and Judge Lamb to proceed under the quorum rule with the hearing sessions scheduled in May and June and any extension or additions thereto as may be appropriate, until the Comission completes its review of the Appeal Board's Order; 6/
The Licensing Board's decision to cancel further hearings pending resolution of any challenges to the disqualification order originally was announced in a conference call between the parties and the Board on April 16, 1982. Hearings are currently scheduled for the weeks beginning May 3, June 1, and June 14.
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If the Comission deems it appropriate to refer Applicants' Motion to the Appeal Board for a ruling in the first instance, the StafG requests this answer be similarly referred.
See, Pacific Gas and Electric Company (Diablo Canyon Nuclear PowerWant, Units 1 & 2),
CLI-81-5, 13 NRC 361, 364 (1981).
(2) Determine to review the Appeal Board's order of April 15, 1982, and direct all parties to file briefs thereon on an expedited basis within 10 days after the date of the Appeal Board's forthcoming opinion (e.g., by May 3 if the Appeal Board's opinion is issued on April 23);
(3) Direct that the Appeal Board serve all parties on an expedited basis when it issues its opinion, and advise the Commission and the parties of the tentative date of issuance if it is not issued on or before April 23; (4)
Instruct the Chairman of the Atomic Safety and Licensing Board Panel not to appoint a replacement for Judge Hill until the Commission completes its review of the Appeal Board's Order. [ footnote omitted]."
The Staff will address each requested action in turn. As to the first, the Commission's rules of practice provide that hearings by quorum are allowed.
10 C.F.R. 6 2.721(d); Commonwealth Edison Company (Zion Station, Units 1 & 2), CLI-74-35, 8 AEC 374, 376 (1974).
In the instant case, the Commission has expressly ordered this Licensing Board to proceed on an expedited basis and issue an early and separate decision on the QA/QC aspects of the operating license. See, Houston Lighting and Power Company, et al. (South Texas Project, Units 1 & 2), CL1-80-32,12 NRC l
281,291-2(1980). Since approximately two more weeks of hearing would close the expedited phase of the record on matters not related to the i
i Quadrex Report, the hearing should continue. The Staff sees no reason why l
the Board should await final disposition by the Comission of the Applicants' Petition seeking review of Judge Hill's disqualification before proceeding.
As the Commission observed in Zion, supra, 8 AEC at 375-376, "the hearing transcript is always available to the absent board member [whether that be Judge Hill or a new member); witnesses can be recalled to answer questions by that member if it is essential; and, in any event, the Licensing Board's final decision must rest upon the reccrd as developed in a particular case."E The second action requested by the Applicants simply states their desire to have an expedited briefing schedule should their petition for review be accepted.
In light of the fact the Comission has already directed this proceeding to go fontard on an expedited basis in CLI-80-32, 12 NRC 281, the Staff concurs with the Applicants' suggestion. Nothing need be said relative to the third action requested directing the Appeal Board to file its opinion on an expedited basis since the Appeal Board's memorandum was issued on April 21, 1981.
With respect to the fourth item of relief requested, the Staff agrees with the Applicants that until the Comission decides whether or not to review ALAB-672 it would be premature for the Chairman of the Atomic Safety and Licensing Board Panel to appoint a replacement for Judge Hill.
It would be an inefficient use of Licensing Board resources for a new panel member to be appointed if the Comission eventually reverses ALAB-672, and there-fore any appointment should await final Comission action relative to the Appeal Board's order.
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The Staff acknowledges that scheduling matters are typically within the sound discretion of the Licensing Board, however, in the present proceeding the Licensing Board's discretion has to a great extent been removed by the Comission in ordering an expedited hearing. Houston Lighting and Power Company et al., (South Texas Project, Units 1 & 2), CLI-80-32, 12 NRC 281 (1980).
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IV. CONCLUSION _
For the reasons aforesaid, the Staff respectfully submits that the Commission should direct the Licensing Board to proceed under the quorum rule with hearing sessions currently scheduled for May and June, establish an expedited briefing schedule should review of ALAB-672 be accepted and direct the Chairman of the Atomic Safety and Licensing Board Panel not to appoint a replacement for Judge Hill until the Commission determines whether to review ALAB-672.
Respectfully submitted,
- f. 6 Jay M. Gutierrez Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of April, 1982, i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE C0f1HISSION In the Matter of HOUSTON LIGHTING AND POWER COMPANY, Docket Nos. 50-498
_ET _AL.
50-499 (South Texas Project, Units 1 & 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO APPLICANTS' MOTION FOR ACTION BY THE COMMISSION IN LIGHT OF THE APPEAL BOARD'S ORDER OF APRIL 15, 1982 in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 28th day of April,1982.
Mr. Ernest E. Hill Richard S. Salzman, Chairman
- Administrative Judge Atomic Safety and Licensing Lawrence Livermore Laboratory Appeal Board University of California U.S. Nuclear Regulatory Commission P.O. Box 808, L-123 Washington, DC 20555 Livermore, CA 94550 Dr. John H. Buck, Member
- Melbert Schwarz, Jr., Esq.
Atomic Safety and Licensing Baker and Botts Appeal Board One Shell Plaza U.S. Nuclear Regulatory Commission Houston, TX 77002 Washington, DC 20555 Christine N. Kohl
- Mrs. Peggy Buchorn Atomic :,afety and Licensing Executive Director Appeal Board Citizens for Equitable Utilities, U.S. Nuclear Regulatory Commission Inc.
Washington, DC 20555 Route 1, Box 1684 Brazoria, TX 77422 Charles Bechhoefer, Esq., Chairman
- Administrative Judge l
Atomic Safety and Licensing Brian Berwick, Esq.
l Board Panel Assistant Attorney General U.S. Nuclear Regulatory Commission Environmental Protection Division Washington, DC 20555 P.O. Box 12548, Capitol Station Austin, TX 78711 Dr. James C. Lamb III Administrative Judge 313 Woodhaven Road l
Chapel Hill, NC 27514 l
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Jack R. Newman, Esq.
Samuel J. Chilk
- Lowenstein, Newman, Reis, Secretary of the Commission Axelrad & Toll U.S. Nuclear Pegulatory Commission 1025 Connecticut Avenue, N.W.
Washington, DC 20555 Washington, DC 20036 Kim Eastman, Co-coordinator Atomic Safety and Licensing Barbara A. Miller Board Panel
- Pat Coy U.S. Nuclear Regulatory Commission Citizens Concerned About Nuclear Washington, DC 20555 Power 5106 Casa Oro Atomic Safety and Licensing San Antonio, TX 78233 Appeal Board
- U.S. Nuclear Regulatory Commission Docketing and Service Section*
Washington, DC 20555 Office of the Secretary U.S. Nuclear Regulatory Commission William S. Jordan, III, Esq.
Washington, DC 20555 Harmon & Weiss 1725 I Street, N.W.
Mr. Lanny Sinkin Suite 506 Citizens Concerned About Washington, D.C.
20006 Nuclear Power 2207 D. Nueces Austin, TX 78705 1
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As RicNard L. Bl@'ck Counsel for NRC Staff i
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