ML20053D637
| ML20053D637 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 06/02/1982 |
| From: | Linenberger G, Wolfe S Atomic Safety and Licensing Board Panel |
| To: | DOHERTY, J.F., HOUSTON LIGHTING & POWER CO. |
| References | |
| ISSUANCES-CP, NUDOCS 8206070152 | |
| Download: ML20053D637 (7) | |
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UNITED STATES OF AMERICA NjQED NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
'82 e^ s; P4 :36
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Before Administrative Judges:
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Sheldon J. Wolfe, Chairman Ed Dr. E. Leonard Cheatum Gustave A. Linenberger, Jr.
SERVED JUN 031982 In the Matter of
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HOUSTON LIGHTING AND POWER COMPANY Docket No. 50-466-CP
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(Allens Creek Nuclear Generating
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June 2, 1982 Station, Unit 1)
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MEMORANDUM AND ORDER l
(Denying Doherty Motion re: Contention 58; Granting Applicant's Motion To Strike Doherty Reply)
MEMORANDUM A. Background In an Order of November 10, 1981, the Board had denied, i
without prejudice, the Doherty Motion For Additional Evidence On TexPirg Additional Contention 31 (October 15,1981) and permitted the Intervenor to renew his motion provided he specified those portions i
of the South Texas Project Quadrex Report which indicated that organizational ch.anges ought to be made insofar as the Allens Creek facility was concerned and/or indicated that modifications ought to be made in the supervision of the Allens Creek construction.
Mr. Doherty filed a renewed motion on December 7, 1981, setting forth certain findings A through 0 based on the STP Quadrex Report.
(This renewed motion was excepted from the closure of the record on Deccmber 9,1981, at transcript pages 21304-06.)
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[DRADOCK 05000666 PDR 4
On January 28, 1982, the Board granted the renewed motion and, in addition, specified two matters that Applicant's and Staff's witnesses should address 1/ (Order at p. 6), and, in an Order of April 8,1982, the Board memorialized a conference call of April 7th (Order, pps. 5-8).
A hearing upon the STP Quadrex findings, as lettered A through 0 by Mr. Doherty, began on April 12, 1982, and the record was formally closed on April 14th (Tr. 22020).
Supplemental proposed findings of fact upon TexPirg Additional Contention 31 have been filed.
On April 22, 1982, Mr. Doherty filed the instant submission, which we treat in part as a motion to reopen the record in order to consider his proposed Contention 58, and in part as a motion to reconsider the Board's Juling that the timing of the disclosure of the STP Quadrex Report to the Board and the NRC Staff was only marginally relevant. On May 7 and May 14, 1982, the Applicant and the Staff respectively filed responses in opposition thereto. After Mr. Doherty filed a reply to Applicant's response to his motion on May 14, 1982, Applicant filed a mution to strike the Doherty reply on May 19th. Mr.
Doherty replied on May 24th.
1/
Inasmuch as Applicant's and Staff's witnesses had not adverted to the Quadrex Report during the October 7-9, 1981 hearing sessions, we asked that they should explain why they did not identify what was wrong with HL&P's management and supervision at STP that permitted these specific safety-related deficiencies to occur and why they had not testified as to what specific actions HL&P would take to prevent their recurrence at Allens Creek.
. B.
Discussion 1.
The Doherty Motion Re: Contention 58 As set forth in that part which we treat as a motion to reopen the record, Intervenor Doherty's proposed Contention 58(A) contends that HL&P failed to comply with 10 C.F.R. 50.55(e) at the South Texas Project in reporting to the NRC in May 1981 only three of some one hundred and twenty deficiencies listed in the STP Quadrex Report and that this f ailure or inability to report all the deficiencies shows that Applicant lacks the technical competence to construct the Allens Creek facility.
Contention.58(B) contends that, in failing to report all of these deficiencies listed in the STP Quadrex Report as required under 10 C.F.R. 50.55(e) and in not making this Report available until very late in this proceeding, the Board and the parties were hampered in efforts to determine HL&P's technical.
competence.
After the closing of a record and prior to the initial decision, pursuant to 10 C.F.R. 2.718(j) Licensing Boards are empowered to reopen a proceeding for the reception of evidence. The Appeal Board has provided guidance in Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Plant), ALAB-138, 6 AEC 520, 523, reconsider. den., ALAB-141, 6 AEC 576 (1973).
Pursuant to that guidance, we must consider (1) the timeliness of the motion to reopen the record, i.e. whether the issues sought to be presented could have been raised at an earlier stage, such as prior to the close of the hearing and (2) the significance or gravity of those issues.
. If these questions are resolved in movant's favor, we must then proceed to consider whether these issues require the receipt of further evidence for their resolution.
The motion to reopen the hearing with respect to Part 58(A) of the proposed contention is untimely. At no time, neither in his motion of October 15, 1981 nor in his renewed motion of Decc.nber 7, 1981, did Mr. Doherty allege that Applicant had failed to comply with 50.55(e) and that this failure reflected adversely upon HL&P's technical competence. The scope of the April 12-14, 1982 hearing was set by these motions - i.e. the specific corrective or preventive procedures Applicant would follow to assure that these problems (A through 0, as lettered by Mr. Doherty) would not recur at Allens Creek.
(See Memorandum and Order of January 28,1982, at p. 3; see also Tr.
21368). The Board did not limit Mr. Doherty's cross-examination when directed to questioning the procedures HL&P's Incident Review Committee would follow in reporting potential problems at Allens Creek pursuant to 50.55(e).
(See Tr. 21841-43).
Further, with respect to Part 58(A) of the contention, Intervenor Doherty has not sustained his burden of showing that the motion to reopen raises matters which are of major significance to plant safety. While he cites 50.55(e)(1), which requires notifi-cation of each deficiency found in design and construction which, if uncorrected, could adversely affect safe operation of the plant over its. term, he neither addresses the balance of that section that requires that the deficiency must also meet one of four listed
. conditions, nor explains which of the Quadrex findings should have been reported because they could have an adverse effect on the safety of operations and met one of the four conditions.
Indeed, at page 4 of the instant motion he merely relies upon the following flimsy argument:
This Intervenor is not saying that he knows as a fact that the Quadrex/STNP report gave problems which would have resulted in an adverse effect on safe oper-ation of the STNP, but rather, that among the many generic and technical discipline adequacy assessments, the Applicant found so little reportable material that its competence to comply with the intent of this important safety related regulation is called into question.
With respect to Part 58(B) of the proposed contention, one portion thereof,2_/ in essence, is a motion for reconsideration of the Board's ruling that, with respect to the issue of technical qualifications, it considered as only marginally relevant the timing of the disclosure of the Quadrex Report to the Board and the NRC Staff.
The Board did so state in the Order of April 8,1982, at page 7, and made it known at the beginning of the April 1982 session that the basic issue was what specific corrective or preventive procedures will HL&P follow to assure these problems or deficiencies as alleged in the STP i
Quadrex Report will not recur during the proposed construction of the Allens Creek facility (Tr. 21368).
However, the Board did overrule objections and allow some cross-examination upon this marginally
-2/ The other portion relating to the alleged non-compliance with 50.55(e) has been discussed above with respect to Part 58(A).
I L
_ relevant matter (See Tr. 21694-21700), and did invite Mr. Doherty, who had conducted discovery, to offer any document secured from Applicant's and Staff's files which would indicate either that they had determined not to disclose the STP Quadrex Report to this Board or would reflect reasons why they did not testify specifically about the STP Quadrex Report at the October 1981 hearings.3/ (Tr. 21726-27).
Mr. Doherty has presented no new arguments or documentation in support of his motion for reconsideration that were not presented during the hearing.
2.
Applicant's Motion to Strike.
Finally,10 C.F.R. 2.730(c) expressly provides that the moving party shall have no right to reply to an answer in opposition to his motion. While Mr. Doherty could have requested leave to file his reply of May 14, 1982, he did not do so.4/ Unlike the movant in Detroit Edison Company (Enrico Fermi Atomic Plant, Unit 2), ALAB-469, 7 NRC 470 (1978), Mr. Doherty is a law school graduate, and is familiar with our practice. For example, with regard to a different matter
{
-3/ At this point in the hearing, it was unclear whether Mr. Doherty was maintaining that both Applicant and Staff had failed to timely disclose'the Quadrex Report.
In the instant motion, the Intervenor only contends that the Applicant deliberately did not disclose the Report to the Staff and to the Board.
4/ Mr. Doherty says that his submission of May 14th was not a motion to reopen the record but concedes that "it is difficult to see how this contention can be heard without doing so."
(Reply of May 24, 1982, p.1) c.
_ _ _ _ _ _ _ _ J
. on November 25, 1981, Mr. Doherty did file a Request For Leave To File a Response to Applicant's Response, which the Board granted on December 30, 1981. Thus, his reply of May 14th is unauthorized.
ORDER For all the foregoing reasons, it is this-2nd day of June 1962 ORDERED 1.
That Intervenor Doherty's Motion (Re:) Contention 58, Applicant's Conduct On Reporting Violations At _STNP is denied.
2.
That Applicant's Motion To Strike "Intervenor Doherty's Reply To Applicant's Response To The Doherty Motion To Add Contention 58" is granted.
Judge Cheatum concurs but was unavailable to sign this Memorandum and Order.
THE ATOMIC SAFETY AND LICENSING BOARD M
<JL puave A. Linenber r Jr.
ADMINISTRATIVE JUDG hl YM She' don
- s. (p fe, Giaipnan ADMINISlRATIU JUDGE t
l l
,.,,...,., _