ML20054L553

Response Opposing Doherty 820615 Motion to Reopen Record to Add Contention 59.Motion Should Be Considered Motion for Reconsideration of ASLB 820602 Order.Timeliness & Significance of Issues Not Established.W/Certificate of Svc

ML20054L553
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	07/02/1982
From:	Black R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8207080234
Download: ML20054L553 (10)

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s C7/02/82 UNITED STATES OF AMERICA l1UCLEAR REGULATORY COMMISSION I

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD /b l '/y hl\h V drg In the Matter of )

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NRC STAFF RESPONSE IN OPPOSITION TO INTERVENOR DOHERTY'S MOTION TO RE0PEi1 THE RECORD TO ADD C0!iTENTION 59 I. IllTRODUCTION On June 15, 1982, Intervenor Doherty filed a motion with the Licensing Board requesting that the Allens Creek record be reopened to hear evidence on Contention 59.E The subject matter of this particular contention is not new to this proceeding. It was formerly raised by Intervenor Doherty in a motion dated April 22, 1982., seeking admission of Contention 58 related to the Applicant's alleged failure to report deficiencies pursuant to 10 C.F.R. 5 50.55(e) found by the Quadrex Corporation in its review of and report on design and engineering work by the Brown & Root Company at the South Tqxas Nuclear Project (STP).

-1/ The motion consists of two documents - "Intervenor Doherty'.s Motion to Reopen the Record," and "Intervenor Doherty's Contention 59." These documents are considered together as a motion to reopen the record for purposes of this response.

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On May 7 and May 12, 1982, the Applicant and the NRC Staff respectively filedresponsesinoppositiontotheApril22ndmotion.S/ Mr. Doherty filed a reply to Applicant's response to his motion on May 14, 1982, wherein he specified what deficiencies he felt should have been reported under10C.F.R.550.55(e)(1)(i-iv).2/ Thereafter, Applicant filed a motion to strike the Doherty reply on May 19th. This was followed by a Doherty reply to the motion to strike on May 24th.

By a Memorandum and Order dated June 2, 1982, the Licensing Board denied the Doherty motion to add Contention 58 and granted Applicant's motion to strike the Doherty reply of May 14th Since the record in this proceeding was formally closed on April 14, 1982 (Tr. 22020), the Board treated the Doherty request to add Contention 58 as a motion to reopen the record. Memorandum and Order, p. 3.S/ The Board discussed the timeliness of the motion to reopen the record and the significance or gravity of the issues presented pursuant to the guidance provided in .

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~2/ See " Applicant's Response to Intervenor Doherty Motion to Add Contention 58", dated May 7, 1982; "NRC Staff Response In Opposition to Intervenor Doherty's Motion to Add Contention 58,"

dated May 12, 1982.

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-3/ As discussed later, the substance of this reply is virtually identical to the substance of the instant motion regarding Contention 59.

~~4/ Both' Applicant and Staff argued that in a situation where an intervenor seeks to litigate a new contentirn after the record is closed, the standards to reopen a record a- ontrolling as opposed to the standards to add an untimely conten. a which are set forth f .1 10 C.F.R. 5 2.714(a)(1). Applicant Response, p. 8; Staff Response, pp. 10-11. The Board agreed.

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Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Plant), ALAB-138, 6 AEC 520, 523, recon. den.,ALAB-141,6AEC576(1973).

The Board determined that the motion was untimely in that the STP Quadrex i

Report perceived deficiencies could_have been raised in prior Doherty motions of October 15, 1982, and December 7, 1981, on this subject matter, and that Intervenor Doherty did not sustain his burden of I

showing that the motion to reopen raised matters which were of major significance to plant safety. Memorandum and Order, p. 4. Its determination that Mr. Doherty had not met his burden of showing a significant safety issue was based, in part, on the fact that the April 22nd motion "neither addresses the balance of [10 C.F.R.

5 55(e)(1)] that requires that the deficiency must also meet one of the four listed conditions, nor explains which of the Quadrex findings should have been reported because they could have an adverse effect of the safety of operations and met one of the four conditions." .

Memorandum and Order, pp. 4-5.

The Board also rejected that part of proposed Contention 58 which I

concerned the timing of th> disclosure of the STP Quadrex Report. It noted that it had previously ruled that this subject matter was only marginallv relevant to the issue of techni' cal qualifications but, in any event, allowed some cross-examination on this matter and invited Mr. Doherty to offer any documents to substantiate his claim of deliberate non-disclosure. The Board concluded that Mr. Doherty's April 22nd motion presented no new arguments or documentation that would warrant reopening the record. Id_, p. 6.

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5 fir. Doherty has recognized and, in fact, admitted the defects in his April 22nd motion. See June 15th motion, p. 3: "It should be pointed out the April 22, 1932 filing of Contention 58, was defective

.... He first attempted to cure _the defects contained in his initial motion in his reply of April 24, 1982, whichwasstruckbytheBoard.EI That being so, he has resubmitted that reply in the form of a new motion to reopen the record to add Contention 59. Accordingly, in Staff's mind, Intervenor Doherty's June 15, 1982, motion to reopen should technically be considered a motion for reconsideration of the Board's June 2, 1982 Order. In any event, whether the instant motion is considered a motion for reconsideration or a new motion to reopen the

~5/ Mr. Doherty also appears to argue that he was entitled as a matter.

of right to reply to the Applicant and/or Staff responses to his initial motion to add Contention 58. He cites Houston Lighting.and Power Co. (Allens Creek Nuclear Generating Station, Unit 1),

KL'AUTEEE,10 NRC 521 (1979) for the proposition that an intervenor is entitled to reply to objections to contentions. Thus, Mr. Doherty - :

may be implicitly arguing that the Board's action in striking his

,, April 24th reply was erroneous. However, this ar'gument ignores the fact that Allens Creek, supra, is limited to a right of reply to timely-raised contentions in a petition to intervene. As stated in XTlens Creek:

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[S]ubstantive alterations of contentions, as distin-quished from arguments in support of existing contentions, can be done only wi'th leave of the Board; that is a matter within its discretion."

ALA3-565, 11 NRC 521 at 523, n. 11. There is no right of reply in a situation where new contentions are raised in a motion to rdopen. In these situations, the express provisions of the Cornission's motion requirements, set forth in 10 C.F.R. % 2.7J govern. Accordingly, we submit that the Board's action in striking a Doherty reply was correct pursuant to 10 C.F.R. @ 2./30(c).

record makes no substantive difference in terms of the Staff's response.5/ Thus, we have evaluated the motion in terms of whether it has timely raised a significant new safety issue which merits reopening the record. As discussed below, we believe that the motion has failed to establish both the timeliness and the significance of the issues sought to be. raised. Accordingly, the motion should be denied.

II. DISCUSSION The standards that are applicable to reopen a. record have been discussed in the Board's June 2,1982 Memorandum and Order and the NRC Staff Response in Opposition to Intervenor Doherty's Motion to Add Contention 58, dated May 12, 1982. Those discussions need not be repeated here except to note that the timeliness and the significance of the issues raised must be considered.

With respect to the timeliness of the issues raised, the Board in

- .its June 2,1982 Order indicated that the scope of the April 12-14, 1982

.. hearing pertaining to STP Quadrex Report matters was s'et by Intervenor g Doherty in his prior motions. The Board concluded that Mr. Doherty could have alleged that the Applicant failed to comply with the reporting requirements of 10 C.F.R. @ 50.55(e) in either his motion of

~6/ Procedurally, a distinction between the two motions might be significant. In accordance with 10 C.F.R. S 2.771, motions'for reconsideration must be filed within 10 days after the final decision. Since Mr. Doherty's motion was filed within the prescribed time, this procedural difference has been mooted.

See also,10 C.F.R. 5 2.710.

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October 15, 1981, or in his renewed motion of December 7,1981 and, hence, Mr. Doherty's April 22, 1982 niotion to reopen was untimely to raise these matters. Memorandum and Order, p. 4 Mr. Doherty's June 15, 1982 motion to reopen raises no new arguments pertaining to timeliness except an assertion that the Board's Order of November 10, 1981 (which denied without prejudice Intervenor Doherty's motion of October 15, 1981 on STP Quadrex Report issues), limited Mr. Doherty's scope of inquiry to organizational and supervisory changes that should be made at Allens Creek in light of the STP Quadrex Report. Accordingly, Mr. Doherty argues that he was " precluded" from r'.ising " problems with 10 C.F.R. 5 50.55(e) reporting . . .". Motion, pg. 2.

This argument has no merit. First, the Board's Order of November 10, 1981 did not preclude fir. Doherty from raising issues pertaining to the Applicant's inability to comply with the reporting requirements of 10 C.F.R.

Q50.55(e). No language is cited that would lead to that result. Certainly Mr. Doherty was free to . frame an issue consistent with that order concerning

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the Applicant's organizational ability to review and report design and construction deficiencies in accordance with 10 C.F.R. s 50.55(e). Secondly, even if it is assumed, arguendo, that the Board's Order of November 10, 1981, did preclude Mr. Doherty from raising these matters as additional evidence on TexPirg Contention 31, it did not and could not preclude him frca raising this issue anew within a reasonable time after receipt of the STP Quadrex Report in November 1981. Recei; af new information may constitute " good cause" for an untimely contention under 10 C.F.R. 5 2.714(a)(1). See Duke Power Co. (Amendment to Materials License SNM-1773), ALAB-528, 9 NRC 146, 148-59 (1979). Under these circumstances,

the Board determined in its Order of June 2,1982, that Mr. Doberty's April 22, 1982 submission of this issue was untimely. That matermination remains valid for the later June 15, 1982 submission by Mr. Doherty on the same issue. Accordingly, Mr. Doherty's motion to reopen is again untimely.

The sum and substance of Mr. Doherty's arguments in both his April 22 and June 15, 1982 motions concerning the safety significance of the STP Quadrex Report findings is that because the Quadrex Report uncovered what the Quadrex Corporation perceived to be numerous design and construction problems at STP, it follows that the Applicant either does not have the technical competence to analyze the findings and report applicable 10 C.F.R. 5 50.55(e) violations or it " lacks character to be a Commission licensee" because of the willful concealment of design or construction problems. June 15th Motion, pg. 4-5.

In its June 2,1982 Memorandum and Order (pg. 4), the Board ruled .

on these matters. The Board concluded that these speculative assertions did not meet the burden of establishing which of the STP Quadrex Report findings should have been reported under 10 C.F.R. S 50.55(e) because they could have an adverse effect on the safe operation of t! .t facility.

The present motion of June 15, 1982, does '-not attempt to cure this fundamental pleading deficiency. It merely listed certain findings and gave a brief paraphrased description of the subject matter of the' finding.

It did not allege how these findings represented either (1) a significant breab:x;n in the quality assurance program, or (2) a significant deficiency in final design, or (3) a significant deficiency in construction of or signficant damage to a structure, system, or component, or (4) a significant 1

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deviation from performance specifications. Absent the crucial nexus

' between the above-noted construction or design deficiencies and a signif-icant effect on the safe operation cf the facility, it ca not be established that these deficiencies should be reported under 10 C.F.R. 550.55(e). In addition, the motion fails to establish that the Applicant lacks the technical ability to analyze engineering reports or the integrity to comply with NRC reporting requirements. Accordingly, this motion again fails to establish the safety significance of the issues sought to be litigated in a reopened proceeding.

III. CONCLUSI2E For the reasons set forth above, this motion to reopen should be denied.

Respectfully submitted,

. 1 ad[ , bl&lC Richard L. Black Counsel for URC Staff Dated at Bethesda, Maryland this 2nd day of July,1982.

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fN UtlITED STATES OF AMERICA f;UCLEAR REGULATORY COMMISSIO;1 4. '

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jlY ..d;.f %\6h BEFORE THE ATOMIC SAFETY A!!D LICEllSItiG BOARD NdO "-

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In the Matter of ) \.. dhIMDh((

HOUST0ft LIGHTIfiG A!iD POWER CLMPAflY ) Docket tio. 50-466

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(Allens Creek fluclear Generating )

Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of fiRC STAFF RESP 0:lSE 111 OPPOSITIO!! TO IllTERVEf;0R DOHERTY'S MOTIO:1 TO RE0 pef 1 THE RECORD TO ADD CO:tTEtiTI0tt 59 in the above-captioned proceeding have been served on the followina by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the fluclear Regulatory Commission's internal mail system, this 2nd day of July,1982.

Sheldon J. Wolfe, Esq., Chairman

• Administrative Judge Susan Plettman, Esq.

Atomic Safety and Licensing David Preister, Esq.

Board Panel Texas Attorney General's Office U.S. riuclear Regulatory Commission P.O. Box 12548, Capitol Station -

Washington, DC 20555 Austin, TX- 78711 Dr. E. Leonard Cheatum Administrative Judge Hon. Jerry Sliva, Mayor Route 3, Box 350A City of Wallis, TX 77 L Uatkinsville, Georgia 30677 Hon. John R. Mikeska fir. Gustave A. Linenberger* Aust.in County Judge Administrative Judge P.'O. Box 310 Atomic Safety and Licensing Bellville, TX 77418 Board Panel U.S. iluclear Regulatory Commission Mr. John F. Doherty i Washington, DC 20555 l 4327 Alconbury Street

J. Gregory Copeland, Esq. Houston, TX 77021 l Baker & Botts l One Shell Plaza l'r. William J. Schuessler l Houston, TX 77002 5310 Darnell Houston, TX 77074 i

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• Jack Newman, Esq. D. Marrack

Lowenstein, Reis, Newman & 420 Mulberry Lane Axelrad Bellaire, TX 77401 1025 Connecticut Avenue, N.W.

Washington, DC 20037 Texas Public Interest Research Group, Inc.

Brenda A.11cCorkle c/o James Scott, Jr. , Esq.

6140 Darnell 13935 Ivymount Houston, TX 77074 Sugarland, TX 77478 Mr. Wayne Rentfro Rosemary N. Lemme:

P.O. Box 1335 11423 Oak Spring Rosenberg, TX 77471 Houston, TX 77043 Atomic Safety and Licensing Appeal Board Panel

• Carro Hinderstein U.S. Nuclear Regulatory Co:nmission Houston Bar Center Washington, DC 20555 723 Main Suite 500 Houston, TX 77002 tiargaret Bishop U.S. Nuclear Regulatory Commission J. Morgan Bishop Region IV, I&E 11418 Oak Spring 611 Ryan Plaza Drive, Suite 1000 Houston, TX 77043 Arlington, TX 76011 Stephen A. Doggett, Esq. Bryan L. Baker Pollan, Nicholson & Doggett 1923 Hawthorne P.O. Box 592 Houston, TX 77098 Rosenberg, TX 77471 ,

Robin Griffith - -

Carolina Conn 1034 Sally-Ann

- 1414 Scenic Ridge Rosenberg, TX 77471 Houston, TX 77n43 Mr. William Perrenod Atomic Safety and Licensing 4070 Merrick Board Panel

• Houston, TX 77025 U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section*

Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 JW f R hardL.f/ack Co nsel for%iRC Staff

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