ML20133J117

Response Opposing Citizens Concerned About Nuclear Power 850930 Motion for Production of Documents,Reopening of Record,Admission of New Contention & Discovery.Certificate of Svc Encl

ML20133J117
Person / Time
Site:	South Texas
Issue date:	10/15/1985
From:	Perlis R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#485-796 OL, NUDOCS 8510180277
Download: ML20133J117 (12)

Text

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))h OctobQr 15, 1985 Cc:c rg UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

~65 r7 ,* f!1 :15 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ~ 'f 7 0

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In the Matter of )

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

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(South Texas Project, Units 1 & 2) )

NRC STAFF RESPONSE TO CCANP MOTION FOR PRODUCTION OF DOCUMENTS, RE0PENING THE RECORD, ADMISSION OF NEW CONTENTION, AND DISCOVERY l On September 30, 1985, CCANP filed a Motion requesting varied relief relating to two docurrents which are alleged to be important to the recently completed Phase Il portion of the South Texas operating license hearing. The documents involved are a consultant's report on Brown and Root Engineering practices provided to the South Texas applicants on October 1, 1984 (the SLI Report) and excerpts from a compilation of events put together by HL&P's Chairman (the " Jordan Diary"). In its Motion, CCANP asks the Board to order HL&P to produce copies of the SLI Report to the Board and parties; to reopen the record in order to admit both documents; to admit a late-filed contention concerning HL&P's alleged failure to notify the Board of the SLI Report; for discovery on both documents; and for an extension of time within which to file e

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i proposedfindingsonthePhaseIIhearings.1/ The Staff herein responds to CCANP's Motion. For the reasons presented below, the Staff submits that the Motion should be denied.

1 I. THE SLI REPORT The SLI Report, as described by CCANP in its Motion, is a 650-page document prepared by Sol Levy, Inc. for HL&P's use in its litigation against Brown and Root. The Report, issued in 1984, provides a review of Brown and Root's design and engineering work at South Texas. The Repo*t, which was discussed at the prehearing conference on October 16, 1984 (see Tr. 10859 et seq.), 2/ was covered by a protective order entered in the Brown and Root litigation until May 30, 1985. On the first day of the I

Phase II hearing, July 11, 1985, CCANP suggested that the Report be

! produced to the Board and parties. Tr. 11268-69. The Board did not order j that the Report be produced, but left it to CCANP to bring matters in the

. Report relevant to the Phase II hearing to the Board's attention or to l file a motion for a new contention. Tr. 11270. The hearing continued for

} more than a month; when the record closed on August 14, 1985 (Tr. 15387),

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-1/ In a Memorandum and Order dated October 4,1985, the Board granted that portion of CCANP's motion that requested a 2-week extension for filing its proposed findings, i 2/ At that prehearing conference. the Board concluded that the report was not relevant to Phase II of this proceeding. CCANP Motion at 2, citing Tr. 10862.

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i CCANP had not been heard from. Forty-seven days after the record closed, 4

l on the day the Applicants' proposed findings were filed, CCANP filed its 1

motion. As it relates to the SLI Report, CCANP requests that the Board order l

that the report be prodcued to the Board and parties; that the record be

. reopened to admit the Report; that the Board admit a new contention asserting  !

that the failure of HL&P to provide the report to the Licensing Board {

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constitutes a violation of the McGuire Rule and reflects adversely on the

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i character and competence of the Applicants; and that the Board allow 1

discovery on the handling of the Report as it relates to CCANP's j contention. The Staff addresses each aspect of the Motion in turn.

A. Motion for Board-Ordered Production l In its October 10, 1985 Response to CCANP's Motion. HL&P provided j the Board and certain parties (including CCANP) with a copy of the SLI Report. This portion of CCANP's Motion is therefore moot. l 1 i B. Motion to Reopen the Record j CCANP moves that the record be reopened to admit the SLI Report.

l Motion at 17-18. This is not the first time a motion to reopen the record has been filed in this case. See, g , LBP-85-19, 21 NRC 1707, i 1720 (June 18, 1985); LBP-84-13, 19 NRC 659, 715-21 (March 14, 1984). As

) the Board pointed out in LBP-85-19, the proponent of a motion to reopen the record bears a heavy burden. 21 NRC at 1720. The standard applied i

to such motions is well-settled; a motion must be timely, it must address a significant safety (or environmental) issue, and it must demonstrate j that a different result might have been reached had the newly proffered 4

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material been considered initially. Metropolitan Edison Company (Three Mile Island Station, Unit 1), ALAB-774, 19 NRC 1350, 1355 (1984), citing Pacific Gas and Electric Company (Diablo Canyon Plant, Units 1 and 2),

ALAB-598, 11 NRC 876, 879 (198.0).

In its Motion CCANP advances the novel argument that the third l i

standard (whether a different result might be reached) does not apply if no decision had yet been issued. Motion at 17-18. The Licensing Board in its Partial Initial Decision, in responding to an August 8,1983 motion to reopen the record filed by CCANP, made clear that the third i standard does apply before a decision is issued:

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. . . where the record of a proceeding (or at least of a i major phase thereof) is closed, the information sought

, to be included in the record must be shown to be material and significant -- i.e., to have at least the

! potential for altering a result which might otherwise be

! reached. Id. To meet this standard, the proponent must I

offer new and significant factual information relating to the issue in question. Pacific Gas and Electric Co.

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

i ALAB-644, 13 NRC 903, 994-95 (1981).

i LBP-84-13, supra, 19 NRC at 716 (footnote omitted). 3I -

i In terms of timeliness, CCANP fails to explain why this motion could 2

not have been filed sooner. The protective order was lifted on May 30, ,

1985; presumably access to the document could then have been had at the Matagorda County Courthouse. It is also unclear whether CCANP ever tried j to procure a copy of the Report from the Applicants. All that appears I

! 3/ Interestingly enough, CCANP in its August 8, 1983 Motion (at page 5)

! correctly recognized that the new information must have the potential to affect the decision if no decision has yet been i reached.

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from the Motion is that CCANP attempted to get a copy from the City of Austin and was only belatedly successful. See Motion at 3, 18.

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Particularly with a hearing rapidly approaching (the hearing started 42 days after the protective order was lifted), it was incumbent upon CCANP to take diligent steps to procure a copy of the Report if it wished to pursue the matter. CCANP in its Motion has not carried its burden of I

demonstrating that such diligence was taken.

While the Staff does not challenge the significance of the issues

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litigated in Phase II, CCANP has utterly failed to demonstrate that acmission of the Report would likely affect the Board's decision. The

] primary i:, sue at Phase II was not whether the Quadrex Report accurately depicted Brown and Root's design program, but whether the Repcrt should have been reported to the NRC. CCANP asserts generally that the SRI Report tends to support the findings of the Quadrex Report. CCANP does not make any attempt to tie this assertion into the issue of reportability of Quadrex or to link the SLI Report to any portion of the

! record developed at hearing. In this regard, it also bears mention that 1

i the SLI Report was prepared more than three years after the Quadrex l Report and (judging from the letter cited at page 4 of CCANP's Motion) was ,

based in part on a number of documents generated after the Quadrex Report was issued. All that can be ascertained from CCANP's Motion is that the SLI Report found deficiencies in Brown and Root's design and engineering performance. CCANP leaves us to guess how this might affect at all the Board's decision on the reporting of the Quadrex Report; CCANP has clearly

! not carried its burden of den.onstrating that admission of the SLI Report i

j would likely affect the decision. Inasmuch as CCANP has failed to show that l

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t its motion to reopen the record is either timely or likely to affect the Board's decision, that portion of CCANP's Motion should be rejected.

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C. Motion for New Contention i CCANP's Motion for a new contention asserts that the SLI Report was relevant to Phase II issues and therefore should have been submitted to j the Board pursuant to the McGuire doctrine. Motion at 19-20. CCANP fails, however, to address the standards for late-filed contentions in its filing, and CCANP further fails to provide a sufficient basis to support the contention.

There is no question that a contention filed this late in the process must meet the requirements for late-filed contentions contained in

< 10 C.F.R. 9 2.714(a). Duke Power Company (Catawba Station, Units 1 and 2), ALAB-687, 16 NRC 460, 466-67 (1982), aff'd in pertinent part, i CLI-83-19, 17 NRC 1041, (1983). The Burden is upon the proponent of a i contention to demonstrate those factors are met. Pacific Gas and Electric Company (Diablo Canyon Plant Units 1 and 2), CLI-81-5, 13 NRC 361, 364 (1981). For its part, CCANP has failed to even discuss the

! factors. The five factors specified in Section 2.714 are good cause for 1

{ failure to file on time; the availability of other means whereby the petitioner's interests might be protected; the extent to which

, petitioner's participation might assist in developing a sound record; the j extent to which petitioner's interest will be represented by existing I

parties; and the extent to which the proceeding would be broadened or delayed.

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The timeliness factor is of critical importance. See, e.g.,

Duke Power Company (Perkins Station, Units 1, 2 and 3), ALAB-431, 6 NRC l 460, 462 (1977) ("where no good excuse is tendered for the tardiness, the +

petitioner's demonstration on the other factors must be particularly I a strong"). Intervenors are under an obligation to file contentions as soon as possible. Catawba, supra, CLI-83-19, 17 NRC at 1048. As noted i earlier, CCANP has not demonstrated that it acted diligently in attempting to gain access to the SLI Report after May 30, 1985. Four months transpired between the lifting of the protective order and

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the filing of the contention. Particularly given the circumstances of this proceeding, with Phase II hearings approaching (and since 1

completed), CCANP has not shown that it filed this Phase II-related contention in a timely manner.

Given the stage of the Phase !! proceeding, with the record closed

and the parties heavily involved in the preparation of findings, it is l axiomatic that admission of a new contention on Phase II issues would l broaden and delay this proceeding.

Even if one assumes that the other factors lie in CCANP's favor (and i

CCANP has made no such demonstration on any of them, including how its i

! participation might assist in developing a sound record), the untimeliness and delay attendant in accepting a contention at this stage f

of the proceeding militate against admission of the contention.

Beyond its untimeliness, the contention is completely without basis, i As noted earlier, CCANP has made no real attempt to demonstrate that the l SLI Report is tied to any issues accepted for litigation during Phase 11 t or conflicts with any part of the Phase II record. Under the

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j circumstances, there is no basis provided in CCANP's Motion for the  !

assertion that the failure to submit the SLI Report to the Board violates

the McGuire doctrine.

i CCANP's Motion for new contention does not meet the standards in i

Section 2.714(a) for admission of untimely contentions and the proposed contention is without basis. The proposed contention should be rejected.

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D. Discovery J

l CCANP nks for discovery in conjunction with its McGuire-related j 1

contention. Motion at 21. If the contention is admitted, such discovery ,

might be appropriate. It is clear, however, that in the absence of an admitted contention the discovery is inappropriate. See 10 CFR 52.740(b)(1) (disco"ery shall relate only to matters in controversy in i the proceeding); Catawba, supra, ALAB-687,16 NRC at 467, n.12  ;

l (" discovery on the subject matter of a contention [can] be obtained only after the contention [has] been admitted to the proceeding"). If the Board finds that the contention should not be admitted (see Section C, s_upra), the request for discovery must be denied.

II. THE JORDAN DIARY l The " Jordan Diary" (as appended to CCANP's Motion) is a handwritten ,

document containing various entries dated from June 26, 1981 to December 16, 1981. Presumably, this compendium was compiled by Mr. Don Jordan,  ;

l Chairman of HL&P and a witness at the Phase II hearing. According to 1

i CCANP (citing LBP-85-19), the diary should have been turned over to that i

party during discovery. Motion at 14. CCANP asks that the record be f

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reopened to admit the document and that CCANP be allowed discovery on the

development and handling of the document.

l The Staff agrees that the document should have been provided to i CCANP during discovery. The Staff also does not challenge CCANP's <

timeliness in raising the issue. Under certain circumstances, the failure to turn over such a document could lead to either discovery or i

examination of the author of the document. In this case, however, the Staff does not see how HL&P's failure to produce the document has prejudiced CCANP in any way.

As noted in Section I.B., supra, an evidentiary record can be i reopened only for significant new information. CCANP claims the document calls into question testimony concerning the role of one of HL&P's j counsel, Mr. Jack Newman, in the removal of Brown and Root from the South 1

Texas Project. Motion at 14-16. As support for this proposition, CCANP ,

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cites the document as identifying Mr. Newman as a member of a team (along 1 '

f.i with Messrs. Oprea and Goldberg) that would review resumes and interview i

I individuals from various companies being considered for replacement of i

! Brown and Root. The diary does not contain much detail; the entire entry  !

l cited by CCANP reads as follows: l

! Oprea and Goldberg. All responses from Westinghouse,

S&W, Ebasco, and Bechtel were received in time. ,

! Discussed follow up evaluation. Determined that  :

specific site discussions with each responsive bid would I be necessary. Each meeting would last at least 2 days j and would include specific review of resumes and l

} interviewing individuals proposed for the job. HL&P '

i team would be composed of Oprea, Goldberg, & Jack i Newman.  !

I See CCANP Motion at 15. CCANP goes on to assert that this passage calls  ;

into question testimony from HL&P witnesses to the effect that HL&P's  !

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4 decision-making team in the removal of Brown and Root consisted only of Messrs. Jordan, Goldberg, and Oprea. M.

Leaving aside the issue of its relevance, the question of Mr. Newman's role in the replacement of Brown and Root was examined at the hearing in some detail. Mr. Goldberg testified that Mr. Newman was involved in the replacerrent of Brown and Root to the extent of providing input on licensing isseas and and various contractual matters. Tr. 12464-65; 12615. As CCANP -

l concedes in its Motion (at 15), Mr. Jordan similarly testified that Mr. Newman provided assistance in the areas of " contract tems" and " regulatory advice".

Tr. 11982. Given the testimony of Messrs. Jordan and Goldberg, the Jordan Diary appears to neither contradict nor add anything to the existing record.

Although the document should have been provided to CCANP during discovery, its admission would not be likely to alter the Board's decision in any way.

Accordingly, the Staff opposes the motion to reopen the record to admit the Jordan Diary.

!!!. CONCLUSION For the reasons presented above, the Staff submits that CCANP's Motion to reopen the record, for admission of a new contention, and for related relief, should be denied. ,

Respectfully submitted.

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/p W/ as Q , L, .

Robert G. Perlis Counsel for NRC Staff Dated at Bethesda, Maryland this 15th day of October,1985

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UNITED STATES OF AMERICA '

j NUCLEAR REGULATORY COMMISSION l

I BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l

l In the Matter of '

l

! HOUSTON l!GHTING AND POWER COMPANY, Docket Nos. 50-498 l

E A1 50-499 l l (South Texas Project, Units 1 & 2) )  !

CERTIFICATE OF SERVICE j I hereby certify that copies of "NRC STAFF RESPONSE TO CCANP MOTION FOR i PRODUCTION OF DOCUMENTS, REOPENING THE RECORD ADMISSION OF NEW CONTENTION, l AND DISCOVERY" in the above-captioned proceeding have been served on the j following by deposit in the United States mail, first class or, as t l indicated by an asterisk, through deposit in the Nuclear Regulatory i

Comission's internal mail system, this 15th day of October,1985.

Charles Bechhoefer, Esq., Chairman

• i Administrative Judge Brian Berwick, Esq.  !

Atomic Safety and Licensing Board Assistant Attorney General Panel Environmental Protection Division U.S. Nuclear Regulatory Comission P.O. Box 12548, Capitol Station ,

Washington, DC 20555 Austin, TX 78711 l l Dr. James C. Lamb !!! .

1 Administrative Judge Jack R. Newman, Esq. l l 313 Woodhaven Road Newman & Holtzinger, P.C.  :

{

Chapel Hill, NC 27514 1615 L Street, N.W. (

Washington, DC 20036 i Mr. Frederick J. Shon l Administrative Judge  ;

j Atomic Safety and Licensing Board Mrs. Peggy Buchorn l J Panel Executive Director i i U.S. Nuclear Regulatory Comission Citizens for Equitable Utilities, .

! Washington, DC 20555 Inc. [

] Route 1, Box 1684  :

! Melbert Schwarz, Jr., Esq. Brazoria,TX 77442 l i Baker at.d Botts t One Shell Plaza

) Houston, TX 77002 i l

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Mr. Lanny Sinkin Citizens Concerned About ,

William S. Jordan, III, Esq. Nuclear Power, Inc.

Harmon, Weiss & Jordan 3022 Porter St., N.W. #304 Suite 430 Washington, D.C. 20008 Washington, D.C. 20009 Kim Eastman, Co-coordinator Atomic Safety and Licensing Board Barbara A. Miller Panel

• Pat Coy U.S. Nuclear Regulatory Commission Citizens Concerned About Nuclear Washington, DC 20555 Power 5106 Casa Oro Atomic Safety and Licensing Appeal San Antonio, TX 78233 Board Panel

• U.S. Nuclear Regulatory Commission Mr. David Prestemon* Washington, DC 20555

Legal Counsel Atomic Safety and Licensing Ray Goldstein, Esq.

Board Panel Gray, Allison & Becker U.S. Nuclear Regulatory Commission 1001 Vaughn Bldg.

Washingten, D.C. 20555 807 Brazos Austin, TX 78701

.. Docketing and Service Section*

Of fice of the Secretary U.S. Nuclear Regulatory Commission i Washington, D.C. 20555 1

/ / /;I)

Robert G. Perlis Counsel for NRC Staff i

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