ML20116D824
| ML20116D824 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 04/25/1985 |
| From: | Axelrad M HOUSTON LIGHTING & POWER CO., NEWMAN & HOLTZINGER |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20116D817 | List: |
| References | |
| OL, NUDOCS 8504300058 | |
| Download: ML20116D824 (44) | |
Text
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b 00CHETED UShRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'85 APR 29 A11 :20 BEf'ORETHEATOMICSAFETYANDLICENSINGBhkEf7[g[g{f1f['
7 BRANCH In the Matter of
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HOUSTON LIGHTING & POWER
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Docket Nos. 50-498 OL COMPANY, _ET _AL.
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50-499 OL (South Texas Project, Units 1.
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and 2)
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APPLICANTS' RESPONSE TO CCANP MOTION TO REOPEN PHASE I RECORD I.
INTRODUCTION On April 17, 1985, Citizens Concerned About Nuclear Power (CCANP) served " Citizens Concerned About Nuclear Power (CCANP) Motion To Reopen Phase I Record" (Motion).
In an order dated April 18, 1985, the Licensing Board directed the parties to address at the April 30, 1985 prehearing conference three procedural questions suggested by the Motion and invited any written answer on these matters in the context of their written responses to the Motion.
The Applicants hereby submit their responst to CCANP's Motion, including answers to two of the questions posed by the Board.
The third question, relating to the propriety of continued representation of Applicants by present counsel, is addressed in a separate memorandum, entitled i
8504300058 850425' PDR ADOCK 05000498 g
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" Applicants' Memorandum Concerning Counsel's Continued Representation of Applicants," which was prepared by outside counsel.
Phase I of this proceeding primarily considered the character and competence of Houston Lighting & Power Company (HL&P) to construct and operate the South Texas Project (STP) and alleged deficiencies in quality assurance (OA)/ quality control (OC) for construction of STP.
The record in Phase I was closed on June 17, 1982.
(Tr. 10722).
The Board issued its partial initial decision (PID) on Phase I on March 14, 1984.
~19 NRC 659 (1984).
Based upon the record, the Board concluded, inter alia, that "HL&P is not now deficient in character and has not demonstrated character deficiencies which would warrant denial of operating licenses, and that HL&P's competence, while L
questionable prior to the Staff's 79-19 Investigation and the issuance of the show-Cause Order and Notice of Violation, was not so deficient as to preclude, without more, the award of operating licenses.
[and that its] competence appears to have substantially improved."
19 NRC at 723. 1/.
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CCANP now moves to reopen the record in Phase I.
The Motion seeks to have introduced into the record of this f
proceeding forty-one documents (CCANP Documents "B" "PP") and certain portions of testimony (CCANP Document "A")
before the
/
1/
The Board also ruled that its " conclusions will be subject to modification, if appropriate, as a result of our consideration of Quadrex Report issues in Phase II."
19 NRC at 668.
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Texas Public Utilities Commission (PUC) in ratemaking proceedings involving HL&P regarding, inter alia, inclusion in the rate base of costs incu.rred in the construction of STP.
Lanny Sinkin, the representative of CCANP, is also the representative of South Texas Cancellation Campaign, which is a party to the PUC proceeding.
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CCANP's Motion is not the utmost in clarity.
I Nevertheless, it appears that the Motion requests the Board to reopen the record on two distinct matters, each based on 7
different grounds.
First, CCANP alleges, based upon its excerpts from the transcript of the PUC proceedings, that "Mr. George Oprea of HL&P gave what appears to be misleading testimony" to the Licensing Board regarding replacement of Brown & Root (B&R) as the architect-engineer for STP, that " counsel for Applicants participated in manipulating the replacement decision and the announcement of that decision to the ASLB with an eye toward minimizing its impact on the ASLB's proceeding," and that "the seriousness of these issues.
requires reopening the record."
(Motion, pp. 4-5).
As is discussed in Section II.~A of this i
response, the first of these allegations is without merit but i
will, to the extent relevant to the issues set by the Board, be l
addressed in Phase II of the STP proceeding.
Therefore, reopening the Phase I record on this allegation is unnecessary.
Furthermore, as discussed in Section II.B of this response, l
Applicants' counsel did not " manipulate" the replacement
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decision, and nothing in the PUC transcript cited by CCANP supports CCANP's assertion.
Consequently, reopening of the Phase I record on t.his allegation is not warranted.
Second, CCANP alleges and argues that the replacement of B&R " played a major role" in the Board's decision on HL&P's character and competence, that the forty-one documents admitted into the PUC proceeding " demonstrate that HL&P had extensive knowledge of B&R's failures long before the issuance of the Order to Show Cause," and that the Board "should reopen the record to 1
determine whether the timing of HL&P's replacement of B&R was consistent with the character and competence necessary for operation of a nuclear power plant."
(Motion, pp. 2-4).
Applicants discuss this argument in Section III of this response, demonstrating that it is untimely and wholly without merit.
Finally, in Section IV of this response, Applicants address CCANP's request for additional discovery.
Section V responds to two of the three questions posed by the Licensing Board.
i II.
MOTION TO REOPEN ON CANDOR OF HL&P TESTIMONY AND ON ROLE OF HL&P COUNSEL REGARDING REPLACEMENT OF B&R CCANP is attempting to reopen the record on the candor of HL&P's witnesses during testimony in the spring and summer of 1981 and the role of HL&P's counsel regarding replacement of BER as architect-engineer.
(Motion, pp. 4-5).
Although CCANP treats these issues as one, they are actually separate matters and are i
discussed separately below.
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l A.
Candor of HL&P Testimony Based upon the PUC testimony of Mr. Goldberg, CCANP alleges that.Mr. Oprea "gave what appears to be misleading testimony to the ASLB in June of 1981 regarding discussions he was having with his staff about removing B&R."
(Motion, p. 4).
This matter does not require reopening of the Phase I record.
In its Memorandum and Order of February 26, 1985, at p
page 19, the Licensing Board requested HL&P to address in Phase II hearings on STP "the apparent inconsistency of the Quadrex Report with testimony presented by HL&P during the spring and summer of 1981 concerning the adequacy of B&R's services and HL&P's satisfaction with B&R's services."
Accordingly, in Phase II hearings, HL&P will produce as witnesses Messrs. Jordan, Oprea, Goldberg, and Frazar who will testify as to their state of mind at the time of their testimony in the spring and summer of 1981 with respect to Brown & Root and the adequacy of its performance.
This testimony will include a discussion of the alleged discrepancy between the testimony of Mr. Oprea before the Board and that of Mr. Goldberg before the PUC.
(See Motion, p.4).
For present purposes, the Applicants note that, contrary to the suggestions of CCANP, there is no conflict between Mr. Oprea's STP testimony on June 2, 1981 (Tr. 3473) and Mr. Goldberg's PUC testimony (CCANP Document "A" at Tr. 1378-80).
In fact, Mr. Goldberg previously' addressed this very issue in this proceeding on June 15, 1982.
Mr. Goldberg told the Board
s that no serious consideration had been given by HL&P to removing B&R prior to June 29, 1981 and that, on that date, Mr. Goldberg was directed,by the executive management of HL&P to go out in the industry and determine what HL&P's options were.
(Tr. 10518-19).
Mr. Goldberg stated that any inconsistency between his and Mr.
Oprea's 1981 testimony was probably attributable to the time frame in which Mr. Oprea testified (i.e., prior to the determination to explore the feasibility of alternatives).
(Tr.
{
10491-92).
He also mentioned the activities and discussions resulting from the April 1981 meeting (Tr. 10413-17, 10518),
which Applicants will show did not amount to serious consideration of removing B&R before June 29, 1981.
These facts will be the subject of testimony by Applicants' witnesses at the Phase II hearings.
In short, Applicants will demonstrate in Phase II hearings that the testimony of their witnesses in Phase I during the spring and summer of 1981 was truthful, forthright, and candid and that no information was improperly withheld from the Board.
CCANP's motion to reopen Phase I hearings on these matters should, accordingly, be denied because they will be addressed to the extent relevant in Applicants' Phase II testimony.
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I B.
Role of Applicants' Counsel CCANP seeks also to reopen the Phase I record to consider whet.her the decision to replace Brown & Root was
" manipulated" with a view toward " minimizing its impact on the ASLB's proceeding." (Motion, p. 4).
That charge depends almost entirely upon CCANP's view that the Applicants improperly
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withheld from the Board information that they were planning to remove B&R.
Phrased as an issue of law, the question might be put:
"Did Applicants fail in an obligation to keep the Board,
e informed of the progress of the deliberations concerning the possible removal of Brown & Root?"
CCANP's charge proceeds from a mischaracterization of a footnote to a document prepared by Applicants' counsel in the course of assisting his clients in the process of selecting a replacement for B&R.
Although the entire document was available to CCANP's representative, he did not see fit to provide it to the Board.
Applicants have done so. 2/ By failing to furnish the document to the Board, CCANP's representative -- free of the constraints imposed by the plain meaning of the full text -- has created a malicious fabrication to the effect that Applicants' counsel attempted to hide information from the Board.
-2/
The full text of the document, a draft dated September 8, 1981, and entitled " South Texas Project Report on Contractor Replacement" is appended to the memorandum entitled
" Applicants' Memorandum Concerning Counsel's Continued Representation of Applicants," submitted simultaneously with this response.
The final version dated September 14, 1981, is also attached to that me'morandum.
b Notification of the Board.
No decision to examine the feasibility of replacing B&R was made until June 29, 1981.
It was determine.d in early July, 1981, that several potential contractors would be interested in submitting proposals.
Proposals were evaluated in August and early September, and the Board was informed on September 24, 1981, immediately after agreement in principle was reached with Bechtel Power Y
Corporation.
All of these facts are matters of record in this proceeding.
(Goldt rg et al. ff. Tr. 10403 at 5-6; Tr. 10413);
Obviously, the judgment that replacement of B&R was feasible could not be made until a complex process of evaluation had been completed, including exploration of the possibilities with firms which could be considered as potential replacements for B&R; consultations among the owners; the choice of the best candidate; and a determination whether an agreement in principle could be reached.
It is wholly understandable that this complex process, initiated on June 29, 1981, was not completed until immediately before September 24, 1981, the date the Board was informed.
The only matters which could have been reported to the Board earlier than that time, were that management had decided to seek l
alternatives (June 29, 1981); that management had asked for proposals to determine the feasibility of alternatives (July, 1981); and that management was reviewing alternative proposals with a view toward determining their feasibility (August-September, 1981).
At any of these junctures, all that could have
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been reported to the Board was the possibility that B&R would be replaced, a possibility that might never become a reality.
It is unthinkable t. hat, in the real world, a public announcement should have been made in those circumstances.
We therefore submit that the Board was informed as soon as there was hard information to impart; namely, that a qualified organization was willing to assume responsibility to complete the project on terms and conditions consistent with the continued viability of the project.
Thus, September 24, 1981, was the earliest date on which the Board could have been meaningfully informed; and that is exactly when the Board was informed.
The Footnote:
As described above, the fact that the deliberative process had begun on June 29, 1981 and culminated-at the time the Board was notified on September 24, 1981, became known to the Board and all parties when Mr. Goldberg testified on June 15, 1982.
Neither at that time, nor in any proposed findings, nor in any appeal of the PID did CCANP allege, or even hint, that the notification to the Board had been unduly delayed.
It is only in its current Motion that CCANP suddenly finds an i
alleged " manipulation" - and its belated claim is based solely upon a footnote in a draft report prepared by Mr. Newman, counsel for Applicants in this proceeding, acting as attorney in i
I connection with the review of proposals submitted by the competing vendors.
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As the " Applicants' Memorandum Concerning Counsel's Continued Representation of Applicants" points out, the question of what regul.atory approval, if any would be necessary to effect a change in architect-engineers was a matter of major concern to counsel.
In this unprecedented action, little guidance was available on a fundamental legal question:
would amendment of J
the construction permit be required and, what, if any, proceedings would be necessary before the new contractor could assume the functions of architect-engineer and construction manager?
In this context, counsel urged an "early decision" so that regulatory actions, including proceedings before this Board, to the extent necessary, could be commenced as soon as possible.
That is plain on the face of the draft report 3/ from which the footnote was extracted and then mischaracterized by Mr. Sinkin (then acting as representative of the South Texas Cancellation Campaign) as he cross-examined Mr. Goldberg during the PUC proceedings, portions of which transcrir.c are attached to the Motion.
(See CCANP Document "A" at 1358-60).
The footnote reads:
Whether or not an amendment is needed, the replacement of B&R will undoubtedly have to be considered in the current operating license hearing and complica-tions may thus arise as to the timing of the takeover of responsibilities by the new contractor.
3/
Draft " South Texas Project Report on Contractor Replacement," pp. 17-18, referred to in Note 2, supra.
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Contrary to CCANP's distortion advanced to support the manipulation theory, that footnote plainly reflected counsel's concern, emphasized in the related text of the document, that s
implementation of the decision to replace B&R (the " takeover of responsibilities by the new contractor") could be delayed by regulatory requirements, including possible proceedings before this Board.
Accordingly, the draft report urged an "early
. decision" so that whatever regulatory actions were necessary could be initiated as soon as possible in order to facilitate the assumption of responsibilities by the replacement contractor. 4/
One of those steps was timely notice to this Board, which was given at the time that the agreement in principle was reached with Bechtel.
Thus, not only is the CCANP-invented theory unsupported by the facts, it is wholly wanting in logic.
It has the f
Applicants acting contrary to their overriding interest in having their replacement contractor "on board" and functioning in accordance with applicable regulatory requirements at the earliest possible date.
There is nothing "new" in the CCANP Motion except the novelty of a party to a serious NRC proceeding attempting to persuade this Board by taking words that mean one thing, separating them from their context, and trying to make them mean something else.
The only appropriate response for the Board is to deny the Motion summarily.
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t III. MOTION TO REOPEN ON TIMING OF TERMINATION OF B&R A.
Nature of the Motion and Its Supporting Documentation In the Motion, CCANP argues that the Board's PID on Phase I turned on the " pivotal conclusion" that replacement of B&R was evidence of good character and competence on the part of HL&P.
(Motion, p. 39).
CCANP would have the record reopened to show that the decision to replace B&R should have been made earlier, "no later than the end of 1979" and possibly as early as 1976.
(Motion, p. 38).
The motion to reopen the Phase I record on this matter is purportedly supported by the forty-one documents (CCANP Documents "B" "PP") attached to the Motion.
CCANP attempts to address the materiality and significance of these documents at pages 25-39 of the Motion.
However, of the forty-one documents, the materiality or significance of more than half is not even discussed or referred to in the Motion. 1/
The majority of the documents relate almost entirely to considerations of cost and schedule or other maragement issues
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not directly related to safety. 5/
For examp'a, some documents refer to instances of lack of communication or friction between 5/
CCANP does not discuss or refer to the significance or materiality of the following documents:
"I" "O", "R"
~
"T", "W",
"Y",
Although the Motion identifies these documents at pages 10-24, CCANP does not explain why they are relevant to its Motion, to Phase I, or to any matter within the jurisdiction of the Board.
6/
See Documents "B" "G",
"I" "J", "M" "P", "R" "S", "U" "Z",
'BB",
"EE",
"GG" "PP".
HL&P and B&R over the period 1973-79; 7/ others record the perceptions of the writers with respect to the performance of specific individuals at various times within the period; 8/ and others reflect a concern about the productivity of engineering or the lead-time between engineering and construction, 9/ a factor which may affect the schedule of large nuclear power plant construction.
Applicants have not been able to detect a coherent argument in the Motion explaining how such matters may be relevant or material to HL&P's character and competence to construct and operate STP safely.
As this Licensing Board has j
already ruled (with the approbation of the Appeal Board), for an aspect of HL&P's conduct to be in issue in this proceeding, there must be "a nexus of a particular trait to particular performance standards contemplated by the Atomic Energy Act or NEPA and NRC's implementing regulations and guides."
LBP-84-13, 19 NRC at 675-6, aff'd, ALAB-799, slip op. at 10-11 (February 6, 1985).
CCANP has not attempted to show how its " supporting" documents have any such nexus.
Instead, it apparently is seeking a forum to explore issues regarding the reasonableness and prudence of HL&P's management decisions.
The proper forum for consideration of those issues is before the PUC (where Mr. Sinkin and his organization have already had their day in court) and not before the Licensing Board.
7/
See e.g., Documents "D",
"P",
"X",
8/
See e.g.,
Documents "C" and "HH".
9/
See e.g.,
"B",
"C",
"U",
"BB",
"FF",
"II", and "JJ".
_ 14 _
In similar circumstances, involving a motion to reopen based upon a large number of documents the relevance and materiality o:f which the movant did not explain, the Appeal Board has stated:
[T]he material purportedly supporting each motion is lumped together in a manner that lacks essential organization.
. The movants have aleo included in their filings considerable material that is irrelevant and immaterial to many of their claims.
- Thus, the unorganized nature of the supporting _
material, combined with the massive amount of irrelevant matter in movants' filings, has made our task of analyzing joint intervenors' claims extremely time-consuming and difficult.
Indeed, the very nature and manner of presentation of'the joint intervenors' filings provide grounds for denying the motion.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-773, 19 NRC 1361, 1368 n. 22 (1984).
See also, 49 Fed. Reg. 50189.
The Applicants suggest that denial of the Motion is warranted on this ground alone.
Nevertheless, even if the Motion is considered on its merits, as discussed in Sections B to E below, it does not satisfy the criteria for reopening of the record and accordingly must fail.
B.
Standards For Reopening The proponent of a motion to reopen a record "has a difficult burden to bear."
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619, 620 (1976).
To prevail, the motion must satisfy a three part test:
1 1.
the motion must be timely presented; 2.
the motion must be addrc-sed to a significant safety or environmental issue; and 3.
the motion must establish that a different result would have been reached initially had the material submitted in support of the motion been r
considered.
Pacific Gas and Electric Co.,
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), 18 NRC 1340, 1344 (1983); Kansas Gas and Electric 4
Cp,. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320, 338 (1978).
See also proposed rule on reopening to be codified at 10 CFR S 2.743a, at 49 Fed. Reg. 50,189 ( Dec. 27, 1984).
CCANP's Motion does not refer to or directly address the elements of this test; nor does the information provided in support of the Motion provide a basis for granting the Motion.
C.
The Motion Is Not Timely As is noted above, CCANP's Motion to reopen the record i
was filed almost three years after the closing of the record on Phase I and more than one year after the issuance of the PID on Phase I.
CCANP claims that the Motion was timely filed because i
it is based upon documents which CCANP allegedly did not have in its possession prior to their admission into evidence in the PUC l
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proceeding in October and Novcmber of 1984.
(Motion, p. 40). 10,/
However, upon scrutiny, this assertion does not support CCANP's claim of time'liness.
Initially, it should be noted that each of the forty-one documents attached to the Motion is more than five years old, and a dozen are more than ten years old, 11/
As the Appeal Board stated in a similar situation in which an intervenor attempted to reopen the record on the issue of character and competence based upon historical examples of misconduct:
The past incidents of alleged applicant misconduct relied upon by the joint intervenors occurred too long ago to be properly considered in a motion to reopen the record without a shor r.g why this issue could not have been raised e arlier.
No such showing has even been attempted by the movants.
Nor can the tardy presentation of these historical examples be saved by bootstrapping them to a series of more recent l
charges.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-775, 19 NRC 1361, 1369 (1984).
For this reason alone, CCANP's Motion should be denied as untimely.
10/
CCANP does not allege that it was not aware of the subjects discussed in these documents prior to October 1984.
Obviously, if CCANP was aware of these subjects prior to October 1984, CCANP could not excuse its delay in filing the Motion on the ground that it did not obtain these documents until October 1984.
Cf. Duke Power Co. (Catawba Nuclear Station, Units 1 and 27, CLI-83-19, 17 NRC 1041, 1045 (1983)
(unavailability of a document does not establish good cause for late filing of a contention if information upon which the contention is based was available early enough to permit a timely filing).
11/
See Documents "H" "R" and "00".
m 1
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' Additionally, the documents attached to the Motion could have been sought on discovery during Phase I. 12/
CCANP's failure to se.ek timely discovery of these documents is fatal to its claim that the Motion is timely.
As the licensing board ruled in Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-83-52, 18 NRC 256, 258 (1983), a r
motion to reopen will be considered to be untimely, even if based upon newly obtained documents, if those documents could have been obtained earlier by means of discovery or a request under the.
^
Freedom of Information Act.
In any event, as CCANP itself concedes, it has had in its possession since October and November of 1984 the PUC trant.cript and the forty-one documents attached to the Motion.
i In '.act, CCANP even announced on December 13, 1984 its intention to file a motion to submit additional information into the record on the alleged misleading testimony of Mr. Oprea. 13/
- Instead, l
it has delayed submitting a motion for approximately half of a year and did not submit the Motion until the eve of the prehearing conference when the other parties.were engaged in preparatory activities.
Given this delay, the Motion clearly is untimely.
12/
As is discussed above, many of these documents appear to relate almost entirely to cost and schedule or considerations of financial management.
As such, they may not have been discoverable.
If that were the case, however, they can hardly be the basis for reopening the Phase I record.
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13/
Oral Argument before the Appeal Board in STP (December 13, 1984), Tr. 10.
(
.' CCANP seeks to excuse its tardiness by arguing that it was unsure whether the Licensing Board or the Appeal Board had jurisdiction.over a motion to reopen and that it was busy preparing other legal filings.
(Motion, pp. 40-41).
Neither excuse passes muster.
If CCANP was unsure on the jurisdictional question, it could have filed the motion with both boards or have sought guidance from the boards regarding the appropriate forum h
for filing.
Similarly, if the press of other matters truly precluded timely filing a motion to reopen, CCANP could have sought an extension of time to file either the motion or its other legal filings.
Instead, it has attempted to rely upon peat hoc rationalizations of dubious validity.
In fact, CCANP appears to recognize this very point, since it argues that the Motion should be considered even if the Board finds it to be untimely.
(Motion, p. 42).
Finally, a word is in order regarding the tactics employed in this Motion.
Throughout Phase I (and certainly after September 24, 1981), CCANP could have argued before the Licensing Board that HL&P lacked the requisite character and competence because it failed to terminate B&R earlier than it did.
- Instead, it elected to rely on the argument that certain character deficiencies are so egregious as not to be subject to reformation
-- an argument which the Licensing Board ultimately rejected.
LBP-84-13, 19 NRC at 676-7.
Similarly, CCANP had in its possession the forty-one documents attached to its Motion, and could have submitted them, at the time the Appeal Board was
considering CCANP's appeal of the PID.
But again, CCANP chose not to do so, and instead repeated the same argument it made before the Licensing Board -- an argument which the Appeal Board j
also rejected.
ALAB-799, slip op. at 11-18.
In effect, having lost before the Licensing Board and having delayed submission of the Motion until after the Appeal Board rejected its argument, CCANP has decided to offer a new " theory of the case" by means of a motion to reopen. 14/
In essence, CCANP wants two bites at the apple.
Such tactics are clearly inappropriate and, if accepted, e
would set a precedent for endless motions to reopen by losing parties attempting to assert or invent new arguments.
In sum, CCANP's Motion is clearly untimely and without good cause. In such circumstances, the merant must demonstrate "that the matter is of such gravity that the public interest demands its further exploration."
Metropolitan Edison Co.
14/
CCANP argues that it was not " aware of the importance the ASLB would place on the replacement of B&R", that
" replacement of B&R was not an issue when the proceeding began in 1979 or even when hearings began in May, 1981," and that, accordingly, "CCANP directed all of its efforts during the, discovery and litigation phases up to September 24, 1981 i
at demonstrating to the Board that the history of performance on the project warranted denial of the license."
(Motion, p.2 (emphasis deleted)).
The responsibility for the failure to raise explicitly the issue of the timeliness of removal of B&R and the failure to take discovery on this issue lies squarely with CCANP.
CCANP should not be permitted to excuse an untimely motion to reopen by reason of these failures.
For example, the Board's " Fourth Prehearing Conference Order" (Dec. 16, 1981), p. 8, authorized additional discovery on the Applicants' new organizational plans following termination of BER.
There is no reason why CCANP could not have then asked for additional discovery on the timing of the termination of BER.
e 3
(Three Mile Island Nuclear Station, Unit No. 2) ALAB-486, 8 NRC 9, 21 (1978).
As shown below, CCANP has not met that burden.
Consequently,: its Motion should be denied.
D.
The Motion Does Not Address A Significant Safety or Environmental Issue As noted above, most of the documents attached to the Motion do not relate to the character and competence of HL&P to construct and operate.STP safely.
Instead, they pertain largely to issues of cost and schedule or the prudence and reasonableness of HL&P management decisions.
If there is any doubt on this score, it is dispelled in the intent expressed by CCANP to put on the type of case that the Texas Office of Public Utility Counsel made in the PUC proceeding.
(Motion, p. 8).
As this Licensing Board has previously ruled, matters raised in a PUC proceeding related to alleged financial mismanagement do not constitute significant safety or environmental issues and are not an appropriate basis for reopening the record on Phase I.
Memorandum and Order (January 10, 1983), pp. 3-4.
The plain thrust of CCANP's Motion is to reopen the record on this very issue -- a matter which is not cognizable by the Board.
E.
The Motion Does Not Establish That a Different Result Would Have Been Reached Initially Had The Documents Attached To The Motion Been Considered CCANP argues that several Board findings would be modified if the documents attached to its Motion were admitted in a " reopened"_ Phase I of this proceeding.
It offers " examples" of
p such findings at pages 25-39 of the Motion.
Appendix A to this response deals with each " example" and demonstrates that in each case, CCANP would, at best, introduce cumulative -- and in some cases irrelevant -- material, hardly likely to affect any Board finding.
Among the matters apparently sought to be revisited by CCANP in its " reopened" proceeding are the various MAC reports on f
aspects of HL&P's management of the STP (see Examples "a" and "c"); the experience of certain of its employees (see Example "b"); prior knowledge of OA/0C problems (see Example "d"); early' examples of incidents of " friction" between construction and QA/QC employees (see Example "e"); prior consideration of the termination of B&R (see Example "f"); identification of the " root causes" of QA/QC problems (see Example "g"); and the progress of l
-engineering versus construction (see Example "h").
As shown more specifically in Appendix A, this Board considered in Phase I much of the substantive information now being offered by CCANP in assertedly "new evidence".
The only thing "new" in the Motion is i
the specific documents identified by CCANP and the conjecture and speculation by which CCANP attempts to weave these documents together for the essential purpose of showing that HL&P did not act "in a timely fashion to remove B&R from the project" and, hence, that the Board was wrong in its " pivotal conclusion that the replacement of B&R as A/E in late 1981 is evidence of good i
character and competence." (Motion,, p. 39).
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4 I
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Assuming arguendo, that CCANP could prove the validity of the points made in its " examples" at pages 25-39 of the Motion, the question remains:
"would the Board's basic conclusion that HL&P ha,d. taken important steps to upgrade its qualifications and performance be diminished in any significant respect"?
As discussed below, we think not.
We also submit that to allow CCANP to embark on this inquiry would be wasteful of the time which the Board and the parties must rightfully devote to s
questions bearing on the public health and safety.
D-CCANP's primary argument rests on the premise that the most significant factor in the Board's finding on character and competence was the replacement of B&R, and that this finding was implicitly predicated upon the Board's determination that HL&P was not sufficiently knowledgeable of problems in B&R's performance prior to the Show Cause order. (Motion, pp. 1-3).
CCANP argues that the documents attached to its Motion
' demonstrate that HL&P was informed of problems with B&R prior to l
the Show Cause order and therefore that the replacement of B&R was not timely.
(Motion, p. 3).
CCANP then claims that, because the replacement of B&R was not as timely as CCANP would have ! bad it, HL&P lacks the requisite character and competence to construct and operate STP.
(Motion, pp. 3-4).
This argument is based on a construct of unsupported conclusions and statements which are incon;sistent with the Board's actual findings.
b First, contrary to CCANP's assumption, the replacement of B&R was not the " pivotal conclusion" in determining whether HL&P possessed-the requisite character.
(See Motion, p. 39).
Instead, the Board's decision on character was predicated upon the following four factors:
(1) HL&P's truthfulness and candor; (2) the manner in which HL&P responded to noncompliances or nonconformances; (3) HL&P's responsibility for STP activities; and (4) the degree to which HL&P stayed informed about STP.
19 NRC at 682-690.
The Board ruled that the "most important" of these four factors was HL&P's truthfulness and candor.
19 NRC at 682.
Replacement of B&R played a significant role in the Board's discussion of only one of these factors; namely, HL&P's response to noncampliances and nonconformances. 15/
19 NRC at 686-88.
Thus, CCANP is simply incorrect when it states that replacement of B&R was " pivotal" to the Board's decision on character; in actuality, replacement of B&R contributed significantly to only l
one of four f actors weighed by the Board in relating its decision on this matter, and this factor was not the most important one to the Board in judging HL&P's character.
More significantly, CCANP's assertion that the Board's finding on character was dependent upon HL&P's lack of timely knowledge of problems in B&R's performance is inconsistent with clear statements in the PID.
For example, the Board found that f
"HL&P had early notice of problems arising out of its utilization 15/
In Finding 125, the Board also stated that termination of B&R was an example of HL&P's assumption of responsibility for STP.
19 NRC at 758.
of B& R. "
19 NRC at 687.
The Board then ruled that, "given this notice, HL&P should have taken steps earlier than it did to correct the problems which were apparent" with B&R.
Id. 16/
In short, contrary to the entire premise of CCANP's argument, the timing of the replacement of B&R was not a significant factor in the Board's favorable ruling on HL&P's character.
Consequently, there is no basis for reopening the record on this matter, since it could not affect the Board's results.
One final point should be made regarding CCANP's arg umen t.
It is apparent that CCANP is again attempting to revive the theory rejected in the rulings of this Board and the Appeal Board that corrective actions cannot remedy defects in character.
CCANP would have this Board deny a license to HL&P because it allegedly f ailed to replace B&R in a timely manner (Motion, p. 39), notwitnstanding all of the actions which HL&P had taken to bmprove the project and the other positive character traits exhibited by HL&P.
In the PID, the Board rejected a similar argument advanced by CCANP, stating:
to the extent that the failure of HL&P to react sooner may be attributed to a character deficiency, the strong steps taken by HL&P to correct its inexperience.
in our view counterbalances any character deficiencies which HLEP may have denonstrated.
16/
In moving to reopen the record to show that HL&P was informed of B&R's problems, CCANP relies upon the Board's finding that "HL&P was not sufficiently knowledgeable" prior to the Show Cause Order.
(Motion, p. 3).
However, when the Board's statement quoted by CCANP is read in context, it is clear that the Board did not find that HLEP lacked adequate information regarding B&R's problems but only that HL&P lacked sufficient knowledge or experience to identify the proper corractive action for those problems.
E 3.
19 NRC at 688.
None of the documents offered by CCANP provide any basis for altering this conclusion.
Consequently, the Motion cannot affect lthe results in the PID and accordingly the Motion should be denied. 11/
In sum, CCANP's arguments in support of its motion to reopen the Phase I record are based upon faulty premises and a misreading of the Phase I PID.
Since the timing of the replacement of B&R was not a predominant factor in the Board's favorable ruling on HL&P's character or competence, and since HL&P has taken appropriate remedial action in any case, reopening of the record to take further evidence on whether HL&P had additional early information regarding B&R's problems would be merely cumulative and would not result in any change in the Board's finding on HL&P's character and campetence.
i Consequently, the Motion should be denied.
17/
Although CCANP also seeks to reopen the record on HL&P's compe te nce, its Motion does not dwell much on this subject.
Nevertheless, CCANP's arguments on HL&P's canpetence are as invalid as its arguments on HL&P's character.
For example, in evaluating HL&P's competence, the Board took into account three factors:
technical and managerial expertise and experience, adequacy of HL&P's organizational structure, and adequacy of HL&P's procedures and programs.
19 NRC at 691-94.
Contrary to CCANP's assertion, the Board did not find replacement of B&R to be " pivotal;" such replacement did not enter into the Board's opinion on the latter two factors and was not the only consideration found relevant to the first factor.
19-NRC at 691-96.
h IV.
REQUEST FOR DISCOVERY CCANP requests additional discovery with respect to two dif ferent matters.
The first relates to the role of Applicants' counsel in the replacement of B&R.
(Motion, p. 47).
The second more sweeping request is for discovery "on any matter where testimony (in Phase I] is guestionable."
(Motion, pp. 47-48).
Additional discovery is not warranted on either of these matters.
Consequently, CCANP's request should be denied.
cc Initially, it should be noted that the discovery period for Phase I was eighteen months, and the discovery period for Phase II was an additional six months, including an extension of three months.
If the matters on which CCANP now seeks discovery were properly discoverable (see discussion below), CCANP should have sought discovery during those periods.
Further discovery would be inappropriate and would only serve to delay this proceeding.
Discovery is not warranted with respect to CCANP's allegation concerning the role of Applicants' counsel in the l
j replacement of B&R.
As is demonstrated in Section II.B. of this response and Section I of the " Applicants' Memorandum Concerning Counsel's Continued Representation of Applicants," there is staply no basis for the allegation that counsel " manipulated" or
" misled" the Board in any way.
Such a baseless allegation cannot support the grant of discovery.
Moreover, it would inevitably lead to a fishing expedition into the legal advice provided to the Applicants.
The nature and specifics of that advice are 8
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{ jf-subject to the attorney-client privilege and therefore is exempt from discovery.
See,10 CFR S 2.740(b)(i); Consumers Power Co.
(Midlar.d Plant,', Units 1 and 2), LBP-83-70, 18 NRC 1094 (1983) and LBP-83-53, 18 NRC 282, 284-86 (1983); Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-82-82,16 NRC 1144, 1156-59 (1982).
i Fin lly, CCANP requests that discovery be reopened "on s
t i
any matter where testimony is questionable," and that an
" independent special master" be appointed to conduct discovery on CCANP's behalf because CCANP does not'want the " burden" of identifying the areas where " discovery is necessary."
(Motion, 48).
The attempt to reopen discovery "on any matter where testimony is questionable" is also nothing more than a thinly-veiled request to engage in a fishing expedition.
Furthermore, its suggestion that discovery be undertaken on CCANP's behalf by an " independent special master" is totally without sanction in the Commission's rules 18/ and is an abdication of CCANP's responsibilities as a party to this proceeding.
Simply put, the request is outrageous and should be denied.
J V.
RESPONSE TO THE BOARD'S OUESTION 4
The Board posed three questions in its order of April 18, 1985.
Applicants' response to each is provided below.
"1.
Whether the motion (or discrete segments thereof) properly -lies before this Board or the Appeal Board."
t 18/
10 CFR S 2.722 identifies the functions which a special v
t assistant may perform for a licensing, board.
Conducting discovery on behalf of a party, to a proceeding is not included.
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Although the question is a close one, Applicants believe that the Licensing Board is the appropriate body to rule on the Motion.l The precedents relevant to the issue do not provide any clear guidance as to which adjudicatory board.has authority to rule on a motion to reopen in a situation such as.that which presently confronts the Licensing Board.
Moreover, the precedents which do exist are not consistent..
For example:
There are two cases which grant extensive jurisdiction to a licensing board to reopen the record.
Wisconsin Electric Power Co. (Point Beach Nuclear f
Plant, Unit 2), ALAB-86, 5 AEC 376, 377 (1972) involved a motion to reopen a proceeding which was divided into a radiological segment and an environmental segment.
The Appeal Board ruled that the licensing board had jurisdiction to reopen the record in the radiological phase, even though the licensing board had issued an initial decision in that phase and even though the Appeal Board had affirmed that decision, because the licensing board still had jurisdiction over the environmer. cal phase.
Similarly, in Cincinnati Gas &
Electric Co. (William H.
Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC 640, 646 (1983), the licensing board ruled that it had jurisdiction to reopen the record to admit new contentions, even though i
the motion was filed after the board had issued its-initial decision and after exceptions to the decision had.been presented to the Appeal Board.
As j ustifica-tion for this action, the licensing board referred to 10 bFE, 2.717(a), which states that the licensing e'
board retains jurisdiction until the Commission has rendered a final decision.
O In contrast, there are several cases which tend to confine a licensing board's jurisdiction to reopen the record.
In Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-591, 11 NRC 741, 742 n.
3 (1980), the Appeal Board stated that jurisdiction over a proceeding was divided between the licensing board and the Appeal Board, and it implied that jurisdiction to rule on the merits of a motion to reopen might be dependent upon which board had jurisdiction over the subject matter raised in the motion. Similarly, in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-699,16 NRC 1324 (1982), the Appeal Board ruled that jurisdiction to reopen the record passes from the licensing board to the Appeal Board after exceptions have been taken to the partial initial decisions issued in the proceeding.
See also Consumers Power Co. ( Big Rock Point Plant), LBP-82-111, 16 NRC 1898 (1982).
Given this conflicting authority, Applicants suggest that a prudent approach would be for the Licensing Board to rule on CCANP's Vot. ion.
Since the Appeal Board has deferred its consideration of the merits of the findings in the Phar I PID, it may not be as f amiliar with the Phase I record of this case as the Licensing Board and tht refore might not be in as good position as the Licensing Board to rule on the Motion.
~
Such a course of action would not be without precedent.
In Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-726, 17 NRC 755 (1983), the Appeal Board was faced with a motion to reopen in a context in which previous cases provided no clear guidance as to which board had juris-diction. 19/
In determining that the Licensing Board had jurisdiction, the Appeal Board was greatly influenced by the fact that it had no familiarity with the case and that the licensing board, "by virtue of its extensive involvement with the case, is obviously better suited to rule in the first instance on the merits of a motion to reopen a record that provides the factual predicate for its own initial decision."
17 NRC at 758 (footnote omitted). 20/
The same reasoning is equally applicable here, and 19/
The motion to reopen in Limerick was filed af ter the issuance of the initial decision but before the filing of exceptions on appeal.
20/
Similarly, in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-73 8, 18 NRC 177, 189-91 (1983), the Appeal Board granted a motion to reopen but re-manded the reopened hearing to the licensing board because the motion pertained to a matter in which the licensing board had made a finding subject to later correction,
the Applicants recommend that the Licensing Board take juris-diction over the Motion.
If the Licensing Board disagrees with this analysis,Jthe Applicants would endorse the Licensing Board's indication that it would provide the Appeal Board with its views on the merits of the Motion.
"2.
Given the close relationship between the findings lof the Ouadrex Report and the eventual replacement of B&R, I
whether at least certain aspects of the motion may properly be Lr regarded not in terms of reopening the Phase I record but rather 2
as supplementary information proffered with regard to CCANP Contention 10 (see LBP-85-6, February 26, 1985)."
As stated in Section II.A, supra, the Applicants believe that issues regarding the termination of B&R in 1981 (as related to the candor of HL&P's testimony in the spring and summer of 1981) can be considered under the issues framed for Phase II without reopening the record of Phase I.
CCANP, if it so desires, can introduce the relevant portions of CCANP Document "A"
into evidence during the Phase II hearing.
For the reasons discussed in Section II.B and Section III, supra, none of CCANP's other allegations or documents are appropriate for consideration in Phase II, either as supplementary to Contention 10 or otherwise.
I l
"3.
Tha propriety of continued representation of a party by an attorney who may have participated other than as counsel in factual matters potentially at issue before an adj udicatory tribunal.
See ABA Model Rules of Professional Conduct ( August, 1983), Rule 3.7."
thereby rendering the licensing board "better equipped" to preside over a reopened hearing.
1 j
Applicants' counsel and HL&P believe that, given its nature, this question is more appropriately addressed by counsel with no other; involvement in this proceeding.
Accordingly, a response to this question prepared by outside counsel is provided in a separate document entitled " Applicants' Memorand um Concerning Counsel's Continued Representation of Applicants."
VI.
CONCLUSION All of the "new evidence" which CCANP seeks to introduce into the record of this proceeding is either testimony or documents which were admitted into the ratemaking proceeding before the PUC associated with STP.
Except to the limited extent discussed in Section II.A, supra, CCANP's Motion is primarily an attempt to relitigate matters related to the prudence and reasonableness of management decisions that were heard before that body.
As such, the Motion largely pertains to matters which are unrelated to any significant safety or environmental issue, and grant of the Motion would lead to a substantial diversion of the Board's and parties' attention from the issues which the Board has set for hearing.
To the extent that the Motion relates at all to HL&P's character and competence to construct and operate STP safely, the Motion does not satisfy the standards for reopening a record. The Motion is untimely and does not demonstrate that the results reached by the Board are likely to be affected by the "new evidence" presented in the Motion.
Furthermore, issues raised in
b.
l i
l 33 -
i l
the Motion regarding the candor of HL&P's testimony in the spring and summer of 1981 have already been designated for hearing in Phase II.
Consequently, the Motion is without merit and should be denied.
Respectfully submitted,
u-Jack R.
Newman Maurice Axelrad Steven P.
Frantz Donald J.
Silverman 1615 L Street, N.W.
Washington, D.C.
20036 Finis E.
Cowan 3000 One Shell Plaza Houston, Texas 77002 Da ted :
April 25, 1985 NEWMAN & HOLTZINGER, P. C.
ATTORNEYS FOR HOUSTON LIGHTING 1615 L Street, N.W.
& POWER COMPANY, Project Manager Washington, D.C.
20036 of the South Texas Project acting herein on behalf of itself and BAKER & BOTTS the other Applicants, THE CITY 3000 One Shell Plaza OF SAN ANTONIO, TEXAS, acting by Houston, Texas 77002 and through the City Public Service Board of the City of San Antonio, CENTRAL POWER AND LIGHT COMPANY, and CITY DF AUSTIN, TEXAS v-T
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9 APPENDIX A APPLICANTS' RESPONSE TO CCANP'S EXAMPLES OF ALLEGED IMPACTS UPON PHASE I FINDINGS At pages 25-39 of its Motion, CCANP provides nine examples of how the "new evidence" which it has offered is
[
allegedly material and significant to some of the Board's
}
findings in Phase I.
As is demonstrated below, none of these examples has any validity.
j CCANP Example "a" (Motion, pp. 26-27)
In this example, CCANP criticizes the Board's Linding that the history of nonconforming and noncomplying conditions at STP is a reflection of HL&P's inexperience and not a lack of character.
In support of this criticism, CCANP cites excerpts i
from reports to HL&P from a consultant (Management Analysis Company (MAC)) which state that HL&P management was inexperienced.
CCANP then argues that, since HL&P knew it had inexperienced management and allegedly failed to correct the inexperience, the nonconformances and noncompliances at STP were attributable to HL&P's lack of character and not to its inexperience.
There is nothing "new" in CCANP's allegation that HL&P was informed by MAC that project personnel were inexperienced.
Mr. Oprea testified that MAC recommended strengthening of project management, and he also testified regarding the improvements
(.
l which were made in response to the MAC recommendations.
(Tr.
l 5119-20; see also 1235-36).
Thus, CCANP's "new evidence" is merely cumulative of that which already exists in the record.
As is evident, the "new evidence" of CCANP confirms the Board's finding that HL&P was inexperienced.
The remainder of CCANP's argument (i.e., that HL&P failed to correct its j
inexperience, that this failure evidences a lack of character) is y
based upon nothing but CCANP's inferences, conjecture, and speculation.
Consequently, there is no ground for reopening the record on this finding by the Board.
Even if CCANP's arguments in Example "a" are assumed arguendo to be valid, there still would be no basis for reopening the record.
As the Board found, to the extent that the failure of HL&P to react sooner may be attributable to a character deficiency, the strong steps taken by HL&P to correct its inexperience.
in our view counterbalances any character deficiency which HL&P may have demonstrated."
19 NRC at 688.
Since nothing alleged in Example "a" would affect this l
conclusion, reopening of the record is not warranted.
I CCANP Example "b"
(Motion, pp. 27-28)
In this example, CCANP criticizes the Board's findings that HL&P's OA Manager, Richard Frazar, lacked prior experience in either QA/QC or nuclear construction and that Mr. Oprea felt he had been kept adequately informed by Mr. Turner.
In support of this criticism, CCANP refers to an unsigned document which c
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cy CCANP alleges is from HL&P's consultant to Mr. Oprea which states, without explanation, that Mr. Frazar may not be qualified, tNat HL&P should hire a new vice president in place of Mr. Turner, and that Mr. Barker should be evaluated and directed to manage "down".
CCANP then argues that the PID should be modified to reflect that HL&P had knowledge of severe deficiencies in the abilities of these personnel and did not take l
the advice of its consultants.
^
As is evident, the "new evidence" of CCANP confirms the Board's finding that Mr. Frazar lacked experience. The remainder of CCANP's argument (i.e., that HL&P had knowledge of severe deficiencies in the abilities of these personnel) is not supported by the document cited.
In fact, the document provides no explanation for the statements quoted by CCANP, and it is not apparent whether the consultant's advice is even related to the safe construction and operation of STP.
Furthermore, CCANP's allegation that HL&P failed to implement the advice of its consultants is, without more, totally lacking in any probative value as to HL&P's character and is not a sufficient basis for altering the results reached by the Board.
Consequently, this example does not warrant reopening of the record.
Finally, it should be noted that Example "b"
is the i
same argument which CCANP previously raised and the Board rejected.
In Phase I, CCANP argued that HL&P should have removed certain personnel, including Mr. Frazar, and that this failure reflects adversely upon HL&P's character. In response, the Board i
- s..
-4_
found that HL&P " tolerated deficiencies in personnel for too long a period of time,"
19 NRC at 689, which.is essentially the very finding whic( CCANP is now proposing be made in a reopened hearing.
However, the Board disagreed with CCANP's conclusion that this finding indicates a lack of character, and instead found it traceable to a lack of experience.
Id.
Since CCANP Example "b"
is an attempt to reargue a lost point using the same underlying facts, it does not provide a sufficient basis for reopening the record.
CCANP Example "c" (Motion, pp. 28-29)
In this example, without referring to any specific finding by the Board, CCANP criticizes the Board for not finding that HL&P abdicated its responsibility to B&R.
In support of this criticism, CCANP refers to several documents which state that a large portion of the responsibility for project management had been turned over to B&R, that effective project management was lacking, and that HL&P was not prepared to direct the efforts of B&R.
There is nothing "new" in CCANP's allegation.
Similar conclusions were expressed in the hearings on Phase I (See e.g.,
Tr. 9505-6; Shewmaker et al. ff. Tr. 9570 at 35-37, 42; Tr.
l 9859).
In fact, the Board itself found that "in some instances l
HL&P left too much responsibility in the hands of BER for certain phases of the STP program" and that there were " lapses in project control."
19 NRC at 771.
The Board also found that, "at lower
w A
t,
levels, HL&P did not exercise effective control prior to the Show Cause Order in areas such as auditing," and that "it over-relied to some extent on B&R, particularly during the early stages of the project."
19 NRC 688-89.
These are similar to the finding which CCANP is now proposing be made in a reopened hearing.
However, the Board disagreed with CCANP's conclusion that these findings indicate an abdication of responsibility or a lack of character, and instead found them to be attributable to lack of experience.
Id.
Since this example is another attempt by CCANP to reargue a lost point using the same underlying facts, it does not provide a sufficient basis for reopening the record.
CCANP Example "d"
(Motion, pp. 29-30)
CCANP criticizes the Board's finding that upper management of HL&P did not abdicate responsibility to B&R for the QA/QC program and that, at lower levels, the lack of effective control was attributable to inexperience and excessively long lines of communication.
In support of its criticism, CCANP I
refers to several documents which allegedly show that HL&P top 1
management was aware of B&R QA/QC failures and incompetence.
CCANP then implies that HL&P's failure to remove QA/QC responsibilities from B&R in the face of this evidence was an abdication of responsibility.
Initially, it should be noted that there is nothing "new" in CCANP's allegation that HL&P was informed of B&R QA/QC problems.
There was extensive testimony on this very matter in
$~
e.
Phase I.
(See, e.g., Tr. 2230-43, Shewmaker et al. ff. Tr. 9576 at 35).
In fact, the Board itself found that HL&P "[m]anagement i
received much' factual information about construction activities" prior to the 79-19 Investigation, but that management was not sufficiently_knowledgable to evaluate it properly.
19 NRC at 771-2.
Thus, CCANP's "new evidence" is merely cumulative of that which already exists in the record.
CCANP has offered no evidence that removal of QA/QC responsibilities from B&R prior to 1981 was the appropriate remedy for B&R QA/QC problems or that HL&P's failure to remove B&R before 1981 was an abdication of responsibility.
- Instead, for this conclusion, CCANP relies totally upon inference, conjecture, and speculation.
This does not provide an appropriate basis for reopening the record.
In any casa, the Board also found that HL&P took remedial actions to strengthen its QA organization and to increase the involvement of HL&P in QA/QC activities and that these actions demonstrate that HL&P has suf ficient character and competence to complete construction of STP in a satisfactory manner.
19 NRC at 694-95.
Since none of CCANP's "new" evidence addresses this finding by the Board, a l
reopening of the record could not serve to change any of the Board's results.
l l
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y
_7-CCANP Example "e" (Motion, pp. 30-32?p In this example, CCANP criticizes the Board's finding that there wa:s friction between OC inspectors and construction personnel and incidents of harassment and threats against QC personnel, but that these reflected upon HL&P's competence and not its character.
In support of its criticism, CCANP refers to documents which purportedly show that HL&P was aware of friction between construction and QC personnel and between B&R and HL&P and other organizations.
CCANP then implies that HL&P's awareness and tolerance of this friction demonstrates a lack of character. 1/
Initially, it should be noted that there is nothing i
"new" in CCANP's allegation that HL&P was aware of harassment and friction between construction and OC personnel.
There was extensive testimony on this very matter in Phase I.
(See, e.g.,
Oprea et al. ff. Tr. 1505 at 11-15; shewmaker et al. ff. Tr. 9570 f
at 35-36, 40).
In fact, the Board even made a finding that HL&P i
failed to identify and correct the root causes of these problems "in spite of having knowledge about the complaints and allega-tions for 1 to 2 years."
19 NRC at 744.
Thus, CCANP's "new evidence" is merely cumulative of that which already exists in the record.
I
-1/
CCANP's allegation regarding " friction" between HL&P and B&R has no apparent relevance to any significant environmental or safety issues.
Therefore, it is an inappropriate basis for reopening the record.
1
{
9 The remainder of CCANP's argument (i.e., that HLEP tolerated this friction, and that this tolerance indicates a lack of character)-is based upon nothing other than CCANP's infer-ences, conjecture, and speculation.
In fact, the Board found that HL&P did take action to remedy this problem, and that this action reflects favorably upon HL&P's character.
19 NRC 686-88.
{
Since none of CCANP's "new evidence" calls into question this j
finding by the Board, there is no reason to reopen the record.
f CCANP Example "f"
(Motion, pp. 32-36)
In this example, CCANP criticizes the Board's finding that, prior to the issuance of the Show Cause Order, HL&P was not sufficiently knowledgeable to realize that major corrective action was needed or to ascertain what those actions should be.
In support of this criticism, CCANP refers to several documents which contain individual opinions that are critical of BER and to one which recommends consideration of termination of B&R. CCANP then argues that because HL&P was aware of problems with BER and did not accept recommendations to terminate BER, HL&P lacked strength of character.
None of the documents cited by CCANP is inconsistent with the Board's findings.
In fact, as CCANP points out, the l
Board found that in 1979 HL&P threatened to consider alternatives to completing STP if BER did not show prompt improvement.
19 NRC l
at 758.
Although the Board also found that HL&P was not l
l sufficiently knowledgeable, it is apparent from the context of l
l
O o
_9_
this finding that the Board was not holding that HL&P lacked information but only that it lacked the experience to appreciate that information.
See 19 NRC at 687-88.
In fact, the Board itself found that "HL&P had early notice of problems arising out of its utilization of B&R" and "should have taken steps earlier than it did to correct the problems which were apparent," 19 NRC at 687, which is essentially the same finding which CCANP is now proposing be made in the reopened hearing. In short, it is apparent that CCANP is attempting to reargue that this delay reflects adversely upon HL&P's character -- an argument the Board explictly rejected in the PID.
19 NRC at 689-90.
Since none of CCANP's "new evidence" demonstrates that HL&P's failure to remove B&R earlier than it did was motivated by any character defect, there is no reason to reopen the record in order to address CCANP's inferences and conjecture on this matter.
CCANP Example "g" (Motion, p.
36)
In this example, CCANP criticizes an entire section of the Licensing Board's Findings of Fact which contains the Board's evaluation of root causes of noncompliances.
In support of this criticism, CCANP refers to the MAC reports to HL&P which purportedly address the same root causes of noncompliances identified in the Bechtel report.
CCANP then argues that, since the MAC reports were submitted prior to the Bechtel report, HL&P i
7' should not have been given credit by the Board in Finding 145 for correcting these root causes but instead should have been found severely lacking for not correcting them earlier.
Initially, it should be noted that Finding 145, which recites the fact that most of the Bechtel recommendations had been implemented at the time of the hearing, is not mentioned in the Board's opinion.
Consequently, alteration of this finding would apparently not change the Board's conclusions.
In any case, since HL&P did in fact implement the corrective action, there would not appear to be any reason to reopen the record on the root causes identified by Bechtel. Furthermore, CCANP refers to nothing other than its own speculation and conjecture which would indicate that HL&P's failed to implement corrective action prior to the Bechtel report or that any such failure is, in any respect, attributable to a character defect as opposed to inexperience or other causes.
Thus, this example is not likely to affect any of the results reached by the Board.
CCANP Example "h"
(Motion, pp. 36-38) f In this example, CCANP criticizes the Board's finding that replacement of B&R was strongly representative of HL&P's assumption of responsibility for the project.
In support of this l
criticism, CCANP alleges that HL&P was aware that engineering was not staying ahead of construction long before 1980, and it refers to several documents for this proposition.
CCANP then argues that the Board's finding should be rewritten to state that
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]
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dismiscal of B&R would only have been strongly representative of HL&P's assumption of responsibility if dismissal had occurred no later than the end of 1979.
This example does not provide an adequate basis for reopening the record.
Initially, it should be noted that the cost and schedule impacts associated with engineering not being sufficiently in advance of construction have no bearing on the T
health and safety matters which are before the Board.
Furthermore, the act of terminating B&R, regardless of when it',
occurred, indicates an assumption of responsibility on the part of HL&P.
Thus, CCANP is seeking to reopen the record on matters which are neither relevant nor material to the results reached by the Board.
CCANP Example "i" (Motion, pp. 38-39)
This " example" appears to be a summary of the reasons 4
for CCANP's request to reopen the record.
The example does not identify any "new evidence" in support of its request to reopen l
the record.
Consequently, it does not constitute an independent l
ground for reopening the record.
Moreover, in large measure it l
reiterates arguments made by CCANP in its proposed findings of fact and rejected by the Licensing Board; CCANP cites no evidence i
or reason for reconsideration of that rejection.
F
.