ML20127G241
| ML20127G241 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 05/17/1985 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | CITIZENS FOR EQUITABLE UTILITIES, HOUSTON LIGHTING & POWER CO., NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| CON-#285-062, CON-#285-62 79-421-07-OL, 79-421-7-OL, OL, NUDOCS 8505210015 | |
| Download: ML20127G241 (16) | |
Text
gg. - .
UNITED STATES OF AMERICA SERVED MAY 201985 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD DONETED Before Administrative Judges Charles Bechhoefer, Chairman Dr. James C. Lamb '85 MY 20 N0:40 Frederick J. Shon*
OFFICE OF SECRETAR'(
00CKETgyERVICF.
In the Matter of l Docket Nos. STN 50-498 OL
) STN 50-499 OL HOUSTON LIGHTING AND )
POWER COMPANY, ET AL. ) ASLBP No. 79-421-07 OL
)
-(South Texas Project )
Units 1 and 2) ) May 17, 1985
)
SIXTH PREHEARING CONFERENCE ORDER (Further Definition of Phase II Issues)
On April 30-May 1, 1985, pursuant to notice,1 the Atomic Safety and Licensing Board held the_ sixth prehearing conference in this operating license proceeding. The conference was held in Bethesda, Maryland.
Participating were representatives of the Applicants, the Intervenor (Citizens Concerned About Nuclear Power, Inc. (CCANP)) and the NRC
- Effective May 10, 1985, the Licensing Board was reconstituted, to substitute Judge Shan for Judge Ernest E. Hill.
1 Notice of Prehearing Conference, dated March 12,1985(50 Fed. Reg. 10562 (March 15, 1985)).
g52ME SE e O Ie
4 2-
-Staff.2 Following is a description of the matters discussed and rulings arising therefrom. In order to identify particular matters for Phase II hearings as early as feasible, we are in some instances only providing a summary ruling,3 with further details to be supplied at a later date (including, in certain instances, as part of the Phase II Partial Initial Decision).
A. Motion to Reopen Phase I Record On April 15, 1985, CCANP filed a motion to reopen the Phase I record. In an Order dated April 18, 1985, we directed the parties to be prepared to address at the prehearing conference three procedural questions. We also pointed out that we did not expect to consider the merits of the motion at the conference, inasmuch as the Staff and State of Texas would not by that time have been reouired to file their responses.4 Having now reviewed the Staff (as well as the Applicants')
response, together with the points discussed at the prehearing 2
The State of Texas (an Interested State) did not send a representative.
3 In our Memorandum (Continued Participation of Applicants' Lead Counsel),datedMay 10, 1985, we announced our ruling on one question considered at the conference.
-4 At the conference, we granted the Staff an extension of time to May 10, 1985 within which to file its substantive response (Tr. 11071). (The Staff addressed the procedural questions during the course of the conference.) The Staff filed its response on May 9, 1985. The State of Texas has not filed a response to the CCANP motion.
C 1
4 conference, we have decided to deny the motion in its entirety. Certain matters raised by Eshibit A to the motion will, however, be litigable under the aegis of CCANP Contention 10. See paragraph 2, infra. We will. describe the reasons for this ruling in a subsequent issuance.
Our rulings on the procedural questions set forth in our April 18, 1985 Order are as follows:
- 1. Jurisdiction to Consider Motion. The first procedural question inquired as to whether this Board or the Appeal Board has jurisdiction to consider the CCANP motion. All partier claim that we have the requisite jurisdiction. Although we believe the question to be a close one, we agree and will rule on the motion. Our explanation of this determination will appear in our ruling on the motion, which we expect to issue in the near future. .
- 2. Inclusion of certain aspects of Motion to Reopen within scope of CCANP Contention 10. In defining Quadrex-Report issues for Phase II, we directed the Applicants to address the possible inconsistency of the Quadrex Report with testimony presented in Phase I. Such testimony would be relevant to both Contentions 9 and 10.
s HL&P's plans to replace Brown & Root in 1981 were in our view at least in part a direct outgrowth of the Quadrex Report. The planned i
replacement of a contractor would not be reportable under 10 C.F.R. 6 50.55(e) and hence would not be a matter relevant to Contention 9. On the other hand, the CCANP motion to reopen portrays the planned replacement of B&R in terms of a matter about which the Board possibly should have been informed under the McGuire rule. For that reason, we l-
c-4 P
will consider _ Contention 10 (adherence to McGuire requirements) as broad enough to include not only the Quadrex Report itself but also the replacement of B&R as an outgrowth of the Quadrex Report. The portion
- of the PUCT transcript supplied as Exhibit A to the Motion to Reopen the Phase I Record may be considered in that context. We note that we will consider as relevant only the portion of the transcript which may bear on the accuracy of the information previously supplied to this Board, together with possible obligations to advise the Board under the McGuire rule of the potential replacement of B&R.
- 3. Representation of Applicant by its Present Counsel. We provided our conclusion on this question in our Memorandum of May 10, 1985. We will explain this determination in more detail in our forthcoming explanation of our ruling on the CCANP motion.
B. CCANP Contention 4 CCANP Contention 4 asserts, in essence, that Category I structures at the South Texas plant (STP) have not been adequately " designed and constructed" to withstand hurricanes, including hurricane-generated missiles. On March 12, 1985, the Applicants, pursuant to 10 C.F.R. 5 2.749, filed a motion for summary disposition of this contention, supported by 2 affidavits. On April 8, 1985, CCANP opposed this motion, on both legal and factual grounds (but, as to the factual matters, without any supporting affidavits). On April 15, the NRC filed a
0, 5-
, response (with 4 supporting affidavits), in support of the Applicants' motion. CCANP has not responded to the Staff's filing.5 We have decided to grant the motion to.the extent that it relates to the design considerations raised by the contention. We will set forth our findings and opinion on this subject in a later order ,
(possibly the Phase II Partial Initial Decision). In short, however, we t
view the primary support for the contention to be the reported wind s
speeds referenced by CCANP (or, earlier, by CEV) which are higher than the operating basis wind speed (0BW) (125 mph) for which STP is designed. The affidavits demonstrate, however, that the probabilistic basis for the 125 mph OBW appears sound even though higher estimated speeds have been reported. Those higher speeds are dubious because they are estimates or are based on use of equipment of questionable accuracy or on unacceptable or unknown observer qualifications. In any event,
.I the design basis wind speed (DBW) for the plant is the tornado based wind speed (DBT) of 360 mph (rotational speed of 290 mph plus translational speed of 70 mph). None of the reported wind velocities on 5
At the prehearing conference, CCANP advised the Board and parties that it may wish to file an additional response (including affidavit (s)) to the motion, on a late-filed basis, and it requested that we defer ruling on the motion for 7 days. We took the request under advisement but note that more than 7 days have elapsed since the conference and no supplementary filing has been received. If CCANP elects to file one or more affidavits, it will have to meet the standards for reopening a record, insofar as the j information relates to matters for which summary disposition is herein being granted.
(
, p.y w_ _ . , . ,p , - - , , . . - - , ., r - .+
..~7--.
which' CCANP is relying would produce loads as high as that produced by the DBT. Accordingly, we find that there is no outstanding genuine issue of material fact as to the design questions raised by Contention 4. We also find that the probabilistic methodology used by the Applicants and Staff to evaluate the design of the isolation valve cubicle (IVC) roof is acceptable. We conclude that the facility has b'een adequately designed to withstand hurricanes (including hurricane-generated missiles) and that.the Applicants are entitled to judgment as a matter of law on the design aspects of Contention 4.
s Contention 4, however, additionally asserts that the facility has s
not been ' adequately " constructed" to withstand hurricanes. The Applicants' motion (including supporting affidavits) does not explicitly 1
refer to the "constructicr." aspects of the contention. The Staff indicated that its review of this questforqwas not complete and would appear in'its ERhiaaff.,13;Tr.10929-30)., Our grant of summary
)
disposition is expressly subject to any' qualifications on constructior, adequacy bearing up,on the facility's ability to withstand hurricanes s- '
which may be brought to light by the SER (including supplements).6 0
To litigate such construction questions, CCANP would have to identify specifically the manner in which the adequacy of construction compromises the plant's ability to withstand hurricanes. Any filing by CCANP within 30 days after the release of the SER (or, if applicable, SSER) discussion of this subject
' will_not be subject to timeliness objections,, as long as the v '
infonnation relied on stems from the SER (or', if applicable, SSER).
"e Not included in these construction quest { s is the plant's ability
(
(FootnoteContinued) s -c ,
5
O C. Competence of HL&P and its Contractors (Issues B and D)
In our Phase I Partial Initial Decision, we left open certain questions as to the competence of HL&P and its new contractors (Bechtel and Ebasco). The Staff and Applicants have each filed affidavits on these questions. In our Memorandum and Order (Telephone Conference Call of April 4,1985), dated April 5,1985, we determined that we would treat the affidavits in the nature of a motion for summary disposition pursuant to 10 C.F.R. 5 2.749. CCANP filed its response on April 25, '
1985.7 ,
We have reviewed CCANP's response, together with the positions of the parties at the prehearing conference. We have determined that CCANP has not set forth any particular matters which raise material questions of fact about the conclusions set forth in the Staff's or Applicants' affidavits. We will set forth the reasons for this conclusion in our Phase II Partial Initial Decision. In short, however, we have concluded that the particular deficiencies or questions raised by CCANP, either individually or collectively, would not raise significant questions (FootnoteContinued) to withstand hurricanes larger than those for which the STP has
.been designed (see n. 5, supra).
7 CCANP's response was filed one day later than the response date set forth in our April 5 Memorandum and Order. We grant CCANP's April 25,1985 motion to file its response out of time; but we caution CCANP to be timely with respect to future filings and, where feasible, to file a request for an extension of time (where needed) prior to the expiration of the time period in question.
concerning the competence of HL&P or its new contractors. We note that some of the matters raised by CCANP relate to the competence of Brown &
Root, the former contractor, and for that reason are not properly within the scope of the competence questions to be examined in Phase II.
Accordingly, the particular competence issues to be addressed in Phase II are those previcusly accepted by the Board: 1.e. (1) the Applicants' current methodology for evaluating 10 C.F.R. 5 50.55(e) deficiencies (see LBP-85-6, at 19-20); and (2) the soils issue set forth in LBP-85-9 (at 8-10). We are further delineating these issues, on the basis of discussions at the prehearing conference, as follows:
(1) In connection with the 5 50.55(e) issue, we would expect the witnesses to be able to explain in some detail the operation of procedures with regard to one or more incidents that presented "close questions" as to reportability (particularly where an incident was found to be not potentially reportable and hence was not reported). In this connection, the Board may ask questions about open item 8312-01(I&E Inspection Report 83-12, at 10, paragraph 7) (see Tr. 11127).
(2) In connection with the soils issue, we accept the limitation of the issue as suggested by the Applicants in their April 26, 1985 filing. The issue will be heard as a subpart of Issues B and D, as follows:
B/D-1. Is there reasonable assurance that the backfill placed at STP by Ebasco is in conformity with the construction permits and the provisions of Commission regulations in light of the two violations in the area of " soils and foundation" discussed in I&E Rept. 83-26 (dated April 20, 1984) and findings 23 and 24 in the programatic audit filed by HL&P on May 25, 1984 (ST-HL-AE-1095)?
c
Examination of'the monitoring system and the adequacy of base-line data, as previously suggested, will not be necessary in the absence of particular information establishing backfill deficiencies which could compromise the effectiveness of such system.
In addition to the two specific competence sub-issues described above, we would expect witnesses from the Staff to be able to evaluate
.(generally) the competence of HL&P and its new contractors, as compared to the competence existing in September, 1981. We have in mind something like an update to the general conclusions of the SALP report (I&E Rept. 83-26), and the Regional Manager's letter of June 24, 1983, without requiring any new evaluation of specific SALP categories (unless the Staff has such categorical information readily available). See also Staff canments at Tr.11181.
We note that CCANP attempted at the prehearing conference to raise other soils matters. We ruled that they were not related to, and could not be considered under, the soils issue already accepted; further, to be considered, those soils matters would have to be introduced as a new, late-filed contention (Tr. 11235).
D. Quadrex Report The Quadrex Report reportability issues were set forth in LBP-85-6.
As a result of our consideration of-the further submission by CCANP on this subject, dated April 22, 1985, the Applicants' reply, dated April 26, 1985, and discussions at the prehearing conference, we are modifying those issues as follows:
t
- 1. CCANP advised that LBP-85-6, which was intended to incorporate the Quadrex items included in CCANP's November 21, 1981 Motion, erroneously combined allegations concerning generic findings 3.1(i) and (j) in terms of finding 3.1(j). The error was caused by the presence of two findings 3.1(j) in the Quadrex Report and the reference by CCANP in
- its November 21 Motion to both of these findings as "3.1(j)".8 Since we did not intend to limit the findings alleged by CCANP to be reportable, the generic findings set forth in LBP-85-6 (at 13) are modified to include the following:
3.1(1) (asserted violation of Appendix B, Criteria I, II, VII) 3.1(j) (asserted violation of' Appendix B, Criteria I, XVIII)
- 2. We are rejecting most of the additional Quadrex findings pr'oposed by CCANP in its filing of April 22, 1985 as reportability issues to be litigated. We will explain this ruling in our Phase II Partial Initial Decision. In general, however,_we have concluded that CCANP's filing fails to explain how the failure to report the additional Quadrex findings listed is inconsistent with 10 C.F.R. 5 50.55(e)(1)(1) or(ii). Furthermore, some of those findings were in fact reported (eg., finding 4.4.2.1).
8 See Motion, p. 37, item 13.D; p. 40, items 14.D and E; and p. 43, item 21.B. CCANP referred to the first of these allegations in terms of "3.1(j) [ sic]"; but it did not include any such designation with respect to item 21.B which also appears to relate to generic finding 3.1(1).
C L.
In response to the request of CCANP, we are expanding the group of Quadrex findings to be litigated with respect to reportability to include the question of whether all of the ALARA findings not in fact reported but designated by Quadrex among the "most serious" findings (Quadrex finding 4.8.2.1) represented a significant QA breakdown, within the meaning of 10 C.F.R. 9 50.55(e)(1)(i). We note that the reportability of ALARA findings was seriously considered by HL&P officials (see, eg ., documents 1-4 and 7 supplied to the Board and parties by the Applicants on April 19,1985). In that connection, we are not convinced that to be reportable, the deficiencies, if not corrected, would have to result in exposures either to the general population or occupational exposures which exceed the 10 C.F.R. Part 20 radiation dose standards or the permissible levels of radiation. In any event, ALARA criteria are incorporated into Part 20. See 10 C.F.R. 5 20.1(c).
- 3. The reportability of Quadrex generic findings is to be considered only insofar as those findings reflect "most serious"
- discipline findings (or findings which are based on insufficient information but which could turn out to affect licenseability). We note, however, that all of the generic findings accepted by us as litigable items have been categorized by Quadrex as "most serious".-
- 4. -Although not discussed at the prehearing conference, we note that LBP-85-6 (at p.13) set forth as a hearing issue the reportability as a significant QA breakdown of the non-reported segments of Quadrex finding 4.3.2.1.
?
I ,
.5. As stated at the prehearing conference (Tr. 11190-92),
examination of the findings listed by the Staff as not reportable based on lack of: release for construction is to include only the seven findings categorized by Quadrex as "most serious"--i.e., 4.1.2.1(b),
4.3.2.1(1),4.5.2.1(b),4.6.2.1(n),4.7.3.1(a),4.7.3.1(b),and 4.7.3.1(k).
E. Schedules At the prehearing conference, we established the following hearing schedules:
July 11-13, 1985 Bay City, Texas July 15-19, 1985 Houston, Texas July 29-August 3, 1985 Houston, Texas (tentative)
August 5-9, 1985 Houston, Texas (tentative)
The hearings in Bay City will be held at the Matagorda County Courthouse, District Court Room No. 2, 1700 7th Street, Bay City, Texas
. 77414.- They will extend from 9:30 a.m. to 6:00 p.m. on July 11, from 9:00 a.m. to 6:00 p.m. on July 12, and from 9:00 a.m. to approximately 12 noon on July 13. The Board will hear oral limited appearance statements on Saturday, July 13, from 2:00-5:00 p.m. -(The Board will not stay in session beyond 3:00 p.m. if, at that time, no persons desiring to.present statements are present in the hearing room.)
The hearings in Houston will be held at a location to be announced later and will generally extend from 9:00 a.m. to 6:00 p.m. daily, i- except that the sessions on July 15 and July-29 will commence at 9:30 a.m., and the sessions on July 19 and August 9 could end by L
in
mid-afternoon. The Saturday session on August 3, 1985, will likely conclude by 1:00 p.m. The Board intends to hold a limited appearance session in Houston, possibly an evening session; details will be announced later. (If the entire session from July 29 to August 9 involves only non-applicant witnesses, the city location of that entire session could be changed.)
Testimony is to be in the hands of the Board and parties by June 26, 1985. By June 7, 1985, the Staff and Applicants must advise the Board and parties of their prospective witnesses; by June 14, CCANP must identify.its witnesses (if any) and file any requests for subpoenas which it requires.
F. Other Procedural Matters At the prehearing conference, CCANP advised that it would seek the sequestration of witnesses "on the issues dealing with the credibility of Phase I testimony" and the reporting of the Quadrex' Report to the NRC (Tr. 11236). After some discussion, we advised CCANP that, to the extent it felt it necessary, it should file a written motion after it has received the prefiled testimony (Tr. 11240). If such a motion were to be filed, the mere circumstance that a party had already prepared its case for presentation by panel (s) would not be a valid ground for opposing sequestration. (The appropriateness of hearing witnesses in panels or individually, both from the point of view of a party's presentation of its case and from the type of information being i
presented, would, of course, be questions to be addressed in determining whether sequestration should be required.)
G. Cross-Examination Plans We will require the submission only to the Board of cross-examination plans. For Phase II, such plans are to include the general lines of proposed cross-examination of each witness or panel, together with time estimates for each line of cross-examination. To preclude improper ex parte contacts, we will make available such plans to all parties following the conclusion of Phase II. (At the prehearing conference, we noted the availability of the Phase I plans for examination by the parties (Tr. 11105). No party sought to do so. We therefore intend to destroy suGi plans.)
H. Conduct of CCANP Representative and of Applicants' Counsel The extended discussion of CCANP's allegations against the Applicants' lead counsel has highlighted what we believe is in-appropriate conduct by both CCANP's representative and various counsel of-the Applicants. On several occasions, in the papers submitted prior to the prehearing conference and during the conference itself, representatives of CCANP and the Applicants have indulged in charges and countercharges against each other--including taking what we regard as
" cheap shots" which contributes nothing to resolving the merits of issues before us but which substantially interfere with the expeditious and effective adjudication of such issues. This unacceptable behavior C
has included quoting critical passages out of context, amounting to a
' lack of candor in dealing with the Board.
This behavior is unprofessional and unacceptable.. We warn the parties that the Board will not tolerate this kind of behavior in the future and will impose sanctions if necessary.
1 e
F For the foregoing reasons, the issues for Phase II hearings are defined and delineated, and filing and hearing dates are established, as set forth herein.
FOR-THE ATOMIC SAFETY AND LICENSING BOARD i s d. . , ssYlk l ChaMes BichlioEfer, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland
- May 17, 1985 Judge Shon took no part in the formulation or preparation of this. Order.
?