ML20054E002

Motion That Commission Direct ASLB to Continue Phase 1 of Proceeding Under Quorum Rule Until Commission Completes Review of Aslab 820415 Order or Denies Review.Aslab Order Should Be Reviewed Expeditiously.Certificate of Svc Encl

ML20054E002
Person / Time
Site:	South Texas
Issue date:	04/20/1982
From:	Axelrad M JOINT APPLICANTS - SOUTH TEXAS PROJECT, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	NRC COMMISSION (OCM)
References
ISSUANCES-OL, NUDOCS 8204230585
Download: ML20054E002 (8)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of )

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HOUSTON LIGHTING AND POWER ) Dockets Nos. 50-498 COMPANY, ET AL. 50-4 I

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(South Texas Project, ) ' -

Units 1 and 2) )

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1 MOTION FOR ACTIONS BY THE COMMISSION ,

IN LIGHT OF APPEAL BOARD'S 4 ,

ORDER OF April 15, 1982 4 ,

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Houston Lighting & Power Company, et al. (Applicants) have today filed a Petition for Review of the Appeal Board's Order of April 15, 1982, which directed that "another member of the Licensing Board Panel should be now designated to re-place Judge Hill." (Order, p. 2) i The Appeal Board's Order has already had an immediate adverse effect on the conduct of this proceeding. In a con-ference call on April 16, the remaining two members of the Atomic Safety and Licensing Board announced to the parties that they had decided to cancel the hearing session scheduled for April 20-24. They stated that they preferred not to proceed under the quorum rule because of the " cloud" created by the Appeal Board's disqualification of Judge Hill, i.e.,

the possibility that the Commission, either of its own voli-po'I tion or upon petition by one of the parties, may choose to i review the Appeal Board's Order. Chairman Bechhoefer in- g Q 82 04 2 5 o STrf I

dicated that the decision not to proceed on April 20 had been made in consultation with the Chairman of the Atomic Safety and Licensing Board Panel. He also informed the parties that he understands that the Appeal Board would issue its opinion during the week of April 19.

The Applicants and the $RC Staff pointed out to the Board that, even if the April 20 session was cancelled, the next hearing session was scheduled for May 4-7 and that the situation was not likely to change significantly by that time, i.e., although the Commission may determine to review the Appeal Board's Order, it may not complete its review by May 4. They reminded the Board that Phase I of this pro-ceeding deals with issues as to HL&P's competence and charac-ter which the Commission had directed the Board to consider on an expedited basis in CLI-80-32, 12 NRC 281 (1980), about 18 months ago. Moreover, although matters beyond the Board's control had protracted this proceeding, the Board has had previous difficulties in scheduling hearing sessions in the past because of conflicting commitments of its members.

It would therefore be unfortunate if the present phase of the proceeding was not completed in the hearing sessions scheduled for April 20-24, May 4-7, June 2-4 and June 15-18.

Both the NRC Staff and the Applicants strongly urged during the conference call that the Board continue with the

long-scheduled April 20-24 hearings, and the Applicants, with the support of the NRC Staf f, formally moved that the Board reconsider its decision to cancel the hearing session.-*/

Nevertheless, the Board adhered to its decision not to conduct the April 20 hearing session under the quorum rule.

The Board stated it was reaching no decision at this time _

with respect to the May 4-7 hearing session, but would con-sider the matter later.

Applicants are appreciative of the fact that the Licens-ing Board's decision was made in response to a difficult and not yet fully evolved situation which had been so sud-denly created by the Appeal Board's Order.

Particularly because of this complicated situation and other special circumstances which we will describe briefly, Applicants believe that it is essential for the Commission to step in at this time to provide the guidance and direc-tion necessary to assure that these matters are resolved promptly and that no further, unnecessary delays occur.

-*/ One intervenor, Citizens for Equitable Utilities (CEU) had previously indicated that it had no ob-jection to proceeding with the hearing session on April 20 under the quorum rule and therefore sup-ported Applicants' motion for reconsideration. The other intervenor, Citizens Concerned About Nuclear Power (CCANP), objected to proceeding under the quorum rule and opposed the motion for reconsidera-tion.

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First, Applicants urge that, until such time as the Commission either decides not to review the Appeal Board's order or completes such review, the Commission direct the Licensing Board to continue Phase I of the proceeding under ,

the quorum rule. The principal issues under consideration in Phase I arise from the Commission's previous decision direct-ing the Board to hear on an expedited basis matters relating to whether HL&P has the requisite character and competence to be granted an operating license. CLI-80-32, 12 NRC 281 (1980).

Not only did the Commission want such matters to be determined promptly, but, as we are certain the Commission can appreciate, it is vitally important to HL&P that these questions concern-ing its corporate integrity not be allowed to remain un-decided for protracted periods.

Phase I of this proceeding has been ongoing for almost a year of hearings, aggregating over 10,000 transcript pages, and is, we estimate,about 90% complete. Whether Judge Hill is reinstated or a new third member is ultimately appointed, his ability to participate in the overall decision would not be significantly affected by the few hearing days that he would miss prior to the Commission's final decision. On the other hand, to cancel hearing sessions while this matter is under Commission consideration risks a delay measurable in months, which is contrary to the Commission's previous man-date for an expedited decision and grossly unfair to a party whose character and competence are being evaluated.

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As important as the need to continue the scheduled hearing sessions is the need to resolve the status of Judge Hill as promptly as possible. For the reasons described in Applicants' Petition for Review, we believe that the Appeal Board's action raises significant questions of law and public policy which should be determined by the Commission. We urge that the Commission decide to review the Appeal Board's Order, either on its own motion pursuant to 10 CPR S 2.786(a) or in response to Applicants' Petition. In either case, an expedited briefing schedule should be established based upon the date of issuance of the Appeal Board's opinion.

Finally, in order to assure against the unlikely pos-siblity that an additional complication might arise from the appointment of a new member to replace Judge Hill while the Commission still has these matters under consideration, Applicants suggest that the Commission provide appropriate guidence on this subject to the Chairman of the Atomic Safety and Licensing Board Panel.

Accordingly, Applicants respectfully move that the Com-mission take the following actions:

(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 Commission

• / To make up for hearing time lost because of cancellation of the April 20-24 hearing session, Chairman Bechhoefer alluded to the possibility of adding Saturday hearings to the presently scheduled hearing sessions, as well as the possibility of an additional hearing week in June.

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l completes its review of the Appeal Board's Order; (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; and (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.

Respectfully submitted, Jack R. Newman t \

Maurice Axelrad Alvin H. Gutterman 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Dated: April 20, 1982 Finis E. Cowan Thomas B. Hudson, Jr.

LOWENSTEIN, NEWMAN, 3000 One Shell Plaza REIS & AXELRAD Houston, Texas 77002 1025 Connecticut Ave.,

N.W. Attorneys for HOUSTON LIGHTING & POWER Washington, D.C. 20036 COMPANY, Project Manager of the South Texas Project acting herein on behalf l BAKER & BOTTS of itself and the other Applicants, 1 3000 One Shell Plaza THE CITY OF SAN ANTONIO, TEXAS, acting i Houston, Texas 77002 by and through the City Public Service l

Board of the City of San Antonio, l CENTRAL POWER AND LIGHT COMPANY and CITY OF AUSTIN, TEXAS.  ;

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE NUCLEAR REGULATORY COMMISSION ,, g p / ,pj In the Matter of )

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HOUSTON LIGHTING AND POWER ) Docket Nos. 50-498 OL COMPANY, ET AL. ) 50-499 OL

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(South Texas Project, ) ,

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of Applicants' letter to the members of the Nuclear Regulatory Commission, Applicants' Petition for Review of Appeal Board's Order of April 15, 1982, and Applicants' Motion for Commission Action in Light of Appeal Board's Order of April 15, 1982, all dated April 20, 1982, have been served on the following individuals and entities by deposit in the United States mail, first class, postage prepaid, or by arranging for delivery as indicated by asterisk, on this 20th day of April, 1982.

Chairman Nunzio J. Palladino* Christine N. Kohl

• U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Commissioner Victor Gilinsky

• U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Charles Bechhoefer, Esq.*

Commissioner John F. Ahearne* Chiarman, Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Board Panel U.S. Nuclear Regulatory Commission Commissioner Thomas M. Roberts

• Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. James C. Lamb, III**

Administrative Judge Alan S. Rosenthal* 313 Woodhaven Road Chairman, Administrative Judge Chapel Hill, North Carolina 27514 Atomic Safety and Licensing -

Appeal Board Ernest E. Hill ***

U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 Lawrence Livermore Laboratory University of California Dr. John H. Buck

• P.O. Box 808, L-46 Administrative Judge Livermore, California 94550 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

Mrs. Peggy Buchorn** Atomic Safety and Licensing

• Executive Director Board Citizens for Equitable U.S. Nuclear Regulatory Commission Utilities, Inc. Washington, D. C. 20555 Route 1, Box 1684 Brazoria, Texas 77422 Docketing and Service Section*

Office of the Secretary Brian Berwick, Esq. U.S. Nuclear Regulatory Commission Assistant Attorney General Washington, D.C. 20555 for the State of Texas

• Environmental Protection Division P.O. Box 12548, Capitol Station Austin, Texas 78711 William S. Jordan, III, Esq.*

Harmon & Weiss 1725 I Street, N.W.

Washington, D.C. 20006 Kim Eastman, Co-coordinator Barbara A. Miller Pat Coy Citizens Concerned About Nuclear Power 5106 Casa Oro San Antonio, Texas 78233 Lanny Sinkin**

2207-D Nueces Austin, Texas 78705 Jay M. Gutierrez, Esq.*

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Atomic Safety and Licensing Appeal Board

• U.S. Nuclear Regulatory Commission Washington, D. C. 20555 A

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a)L 1 Maurice Axelrad l

• Hand delivery i

• • Express Mail

• • • Federal E:: press