ML20079J593

Response in Opposition to Citizens Concerned About Nuclear Power 821206 Motion to Reopen Record.Receipt of Evidence Would Involve ASLB in Nonpertinent Ratemaking Matters. Certificate of Svc Encl

ML20079J593
Person / Time
Site:	South Texas
Issue date:	12/21/1982
From:	Newman J HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8212280282
Download: ML20079J593 (8)

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UNITED STATES OF, AMERICA 00Q"h,["

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

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(South Texas Project, Units 1 ) ,

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APPLICANTS' RESPONSE TO CCANP'S MOTION TO REOPEN THE RECORD I. Introduction >

By motion dated December 6, 1982, Citizens Concerned About Nuclear Power (CCANP) has requested that the record in this proceeding be reopened. The basis for CCANP's request is a recent decision of the Texas Public Utility Commission (PUC), ruling upon Houston Lighting & Power's (HL&P) request ,

for a rate increase. CCANP urges that the record be re-opened "to permit taking of evidence regarding the PUC actions." Motion at 3.

For the reasons set forth below, Applicants believe that CCANP has failed to demonstrate sufficient grounds for reopening the record and that its motion should be denied.

II. Argument NRC authority has consistently recognized that re- '

opening the record is an " extraordinary action," and that the proponent of such a motion has an extremely heavy burden to j 82122802EE2 821221 i PDR ADOCK 05000498

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$ I I bear. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-82-34A, 15 NRC 914, 915 (1982);

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , ALAB-598,11 NRC 876 (1980);

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9 (1979)- Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No.1) , ALAB-462, 7 NRC 320 (1978); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520 (1973).

Where the proponent seeks to reopen the record on the basis of new information relating to an issue already admitted in the proceeding, the motion must provide new and material factual information bearing upon that issue. See, e.g.,

Three Mile Island, supra, 15 NRC 914, 916; Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644, 13 NRC 903, 994-95 (1981).

In Diablo Canyon, for example, the Appeal Board denied a motion to reopen the record on the basis of a new U.S.

Geological Survey (USGS) seismic report. The Board noted that, although the USGS report provided new seismic analyses, it was based upon records and data which were in existence during the seismic hearings and which "were or might have been addressed at [those] hearing [s] . . . .

Diablo Canyon, supra, 13 NRC at 994. Thus, while the USGS report

4 was relevant to the issues before 6 se Appeal Board, "the subject matter [the report] addresse [d] was thoroughly litigated . . . albeit on the basis of analyses supplied by other qualified experts." Id. at 995. Accordingly, the absence of any new and material factual information in the report required that the motion to reopen be denied.

The information proffered by CCANP in its motion provides an even less adequate basis for reopening the record. CCANP relies exclusively on the existence of views expressed by the hearing examiner and the PUC in the course of their ruling on HL&P's requested rate relief, regarding alleged mismanagement of the South Texas and Allens Creek Projects.

The motion does not assert

• that those views are based on any new factual information. / The views of the PUC and the hearing examiner, constitute, at most, an additional inter-pretation of information which "[was] or might have been addressed" in the closed hearing record. Id,. at 994.

In addition to the requirement that the motion provide new, relevant and material factual information, in numerous cases where a motion to reopen has been filed after or near

~*/ The absence of any new factual information is emphasized by CCANP's own description of the evidence it would wish to be heard in the reopened proceeding. Such alleged " evidence" would include the hearing examiner's recommendations, the PUC order, the transcript of the Commissioners' discussion of their ruling and "possibly direct testimony by the Commissioners themselves."

Motion at 3. No specific new facts as to actions by HL&P are alleged.

the time the decision on the existing record has been issued, NRC adjudicatory boards have also considered whether the new information would, in any material way, change the result of that decision. Id. at 995; Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 and 2),

ALAB-598, 11 NRC 876 (1980) ; Three Mile Island, supra, 8 NRC 9, 21; Wolf Creek, supra, 7 NRC 320, 321; Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1),

LBP-81-59, 14 NRC 1211, 1497 (1981). In order to justify reopening the record in these circumstances, the proponent must come forward with highly probative evidence. In Three Mile Island, supra, 14 NRC at 1497, for example, the Licensing Board held that in order to reopen the record the intervenor "must establish that the evidence it wishes to proffer is of such magnitude that it could cause us to alter the result we reach in this decision."

It is apparent that the information proffered by CCANP does not satisfy this standard. The views of the PUC and hearing examiner, upon which CCANP relies, were rendered in a ratemaking proceeding which did not focus on public health and safety considerations. To whatever extent the PUC considered HL&P's " management" of the STP, it did so in ,

an economic context, encompassing the efficiency with which the Project is conducted from a cost and schedule standpoint, and not from the health and safety perspective which is the

focus of this Board's inquiry. */ To reopen the record to receive such evidence would entail having this Board con-sider a range of economic issues which are not, and have never. been, the focus of the Commission's regulatory process.

Thus the information proffered by CCANP is neither relevant nor material, let alone sufficient to affect materially the decision to be reached by this Board.

III. Conclusion The views of the PUC and hearing examiner regarding alleged mismanagement of the South Texas and Allens Creek Projects, rendered in the course of ruling upon HL&P's re-quested rate relief neither provide any new and material factual information, nor rise to the level of relevant and material evidence which would justify the extraordinary relief of reopening a closed hearing record. Reopening the

• / The tangential nature of the " evidence" proferred by CCANP is highlighted by CCANP's reference to the hearing examiner's views on the Allens Creek Project.

Motion at 1. Whatever may be the validity or significance of the hearing examiner's views that the delay in the cancella'nion of Allens Creek was " poor management," and that HL&P's approach to the PUC regarding recovery from Allens Creek was " improper and imprudent," in the con-text of the ratemaking functions of the PUC, those views cannot support a reopening of the record in this proceeding.

> record to receive such evidence would deeply involve the Board in ratemaking matters which are not pertinent to the health and safety focus of the Commission's regulatory process.

For the reasons set forth above, CCANP's motion should be denied.

Respectfully submitted, bf bd!W Jack R. Newmbn Maurice Axelrad Alvin H. Gutterman Donal5 J. Silverman 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Finis E. Cowan Thomas B. Hudson, Jr.

3000 One Shell Plaza Houston, Texas 77002 Dated: Decembe'r' 21, 1982 ATTORNEYS FOR HOUSTON LIGHTING

& POWER COMPANY, Project Manager LOWENSTEIN, NEWMAN, RE.IS of the South Texas Project acting

& AXELRAD, P.C. herein on behalf of itself and 1025 Connecticut Avenue, the other Applicants, THE CITY OF N.W. SAN ANTONIO, TEXAS, acting by and Washington, D.C. 20036 through the City Public Service Board of the City of San Antonio, BAKER & BOTTS CENTRAL POWER AND LIGHT COMPANY, 3000 One Shell Plaza and CITY OF AUSTIN, TEXAS Houston, Texas 77002

d UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

/

BEFORE THE ATOMIC SAFETY AND LICENSING BOARDKETED

- umM In the Matter of l '82 DEC 27 N001 HOUSTON LIGHTING & POWER ) Docket Nos. 50-498 OL COMPANY, ET AL.

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) h~fyr.u & SEtwtCL (South Texas Project, Units 1 ) BRANCH and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response To CCANP'S Motion to Reopen The Record" dated December 21, 1982 have been served on the following individuals and entities by deposit in the U.S. Mail, first class, postage prepaid on this 21st day of December 1982.

Charles Bechhoefer, Esq. Drian Berwick, Esq.

Chairman, Administrative Judge Assistant Attorney General Atomic Safety and Licensing for the State of Texas Board Panel Environmental Protection U.S. Nuclear Regulatory Division Conmission P.O. Box 12548, Capitol Station Washington, D.C. 20555 Austin, TX 78711 Dr. James C. Lamb, III William S. Jordan, III, Esq.

Administrative Judge Harmon & Weiss 313 Woodhaven Road 1725 I Street, N.W.

Chapel Hill, NC 27514 Washington, D.C. 20006 Ernest E. Hill Kim Eastman, Co-coordinator Administrative Judge Barbara A. Miller Lawrence Livermore Laboratory Pat Coy University of California Citizens concerned About P.O. Box 808, L-46 Nuclear Power Livermore, CA 94550 5106 Casa Oro San Antonio, TX 78233 Mrs. Peggy Buchorn Executive Director Lanny Sinkin Citizens for Equitable 2207-D Nueces Utilities, Inc. Austin, TX 78705 Route 1, Box 1684 Brazoria, TX 77422 Jay M. Gutierrez, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 w

I Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 I /k'IKA W

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