ML20136J196

Answer Requesting That Commission Deny Joint Intervenors 850809 Petition for Review of ALAB-812 Denying Motion to Reopen QA & Character Competence Issues.Certificate of Svc Encl

ML20136J196
Person / Time
Site:	Waterford
Issue date:	08/19/1985
From:	Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
References
CON-#385-278 ALAB-812, OL, NUDOCS 8508200647
Download: ML20136J196 (12)

Text

e2D UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of bN 20 A9*Q7

. LOUISIANA POWER AND LIGHT C0F.PANY ) Docket No. 50-3 hE[ 3[C ' '

)

(Waterford Steam Electric Station, )

Unit 3) )

NRC STAFF'S ANSWER TO JOINT INTERVENORS' PETITION FOR REVIEW

)

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Sherwin E. Turk Deputy Assistant Chief Hearing Counsel August 19, 1985 1

9508200647 850819 PDR ADOCK 05000382 G PDR g50

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of LOUISIANA POWER AND LIGHT C0F.FANY ) Docket No. 50-382

)

(WaterfordSteamElectricStation,)

Unit 3) )

NRC STAFF'S ANSWER TO JOINT INTERVENORS' PETITION FOR REVIEW Sherwin E. Turk Deputy Assistant Chief

. Hearing Counsel

. August 19, 1985

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1 UNITED STATES OF AMERICA i i NUCLEAR REGULATORY COPetISSION  ;

i BEFORE THE COMMISSION

.In the Matter of LOUISIANA POWER AND LIGHT COMPANY Docket No. 50-382

! (WaterfordSteamElectricStation,)

Unit 3) )

i NRC ST.AFF'S ANSWER TO '

l JOINT INTERVENORS' PETITION FOR REVIEW j On August 9,1985, Joint Intervenors filed a " Petition for Review" j

(" Petition"), in which they seek Connission review of the Atomic Safety i

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! and Licensing Appeal Board's decision denyingetheir motion to reopen on l l

i cuality assurance and character and competence issues. Louisiana Power j 4 and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, l 22 NRC (July 11, 1985). 1/ ,

Pursuantto10C.F.R.52.786(b)(3),theNRCStaff(" Staff")hereby-J j files its answer to Joint Intervenors' Petition. For the reasons set

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forth herein, the Staff submits that the Joint Intervenors have failed 4

to demonstrate the existence of any error by the Appeal Board which war- .

rants Comission review and, accordingly, the Petition should be denied.

~1/ The Joint Intervenors had previously filed four other motions to reopen, including an earlier motion to reopen on quality assurance issues. All of those motions have previously been denied by the j Appeal Board and were not addressed in ALAB-812. See ALAB-812, i' slip op. at 1. The denial of those other motions to reopen is not challenged in the instant Petition.-

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. INTRODUCTION Joint Intervenors' motion to' reopen was filed on November 8, 1984, more than one and one-half years after the record of this proceeding had been closed. U In their motion, the Joint Intervenors sought to raise three new contentions for litigation: (1)thatasystematic breakdown had occurred in the plant's construction quality assurance program, (2) that Applicant Louisiana Power and Light Company ("LP&L" or " Applicant") lacked sufficient character and competence to operate a nuclear plant, and (3) that the NRC Staff's inspection and investi-gation efforts were inadequate to ensure that potentially significant construction deficiencies have been corrected and that the plant can operate safely.

Following the filing of responses to the motion to reopen by the Applicant and Staff, and the filing of additional detailed responses atthedirectionoftheAppealBoard,E the Appeal Board issued its 2/ Hearings in this proceeding concluded on February 11, 1983, and the record was then closed. The Appeal Board affirmed the Licensing Board's final PID (LBP-83-27) on December 9, 1983, at which time it also denied two of Joint Intervenors' earlier motions to reopen.

Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 FRC 1321 (1983).

-3/ On March 22, 1985, the Apoeal Board ordered stricken from the record all but a small portion of the Staff's initial response to Joint Intervenors' motion to reopen, finding that it suffered serious deficiencies in form and substance and did not adequately explain the bases for the Staff's conclusion that the motion should be denied, Louisiana Power and Lisht Co. (Waterford Steam ElectricStation, Unit 3),ALAB-801,21FRC479(1985).

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. -3 decision in ALAB-812. Therein, the Appeal Board ruled as follows (Id.,slipop,at3):

[W]edenyJointIntervenors' November 8motionto

reopen the record in all respects save one: insofar i as the motion raises issues that may relate to matters under investigation by 01, we are unable to rule and therefore leave that part of the motion for the Com-mission's resolution.

l' l In so ruling, the Appeal Board considered and rejected virtually all of the assertions made by the Joint Intervenors in their motion to reopen and in the 62 lengthy exhibits which were attached to that motion. Only matters which concerned pending OI investigations were left unresolved; I those matters were referred, instead, to the Commission for resolution.

See id., slip op at 72-73.

l DISCUSSION The standards governing the grant of petitions seeking Comission review of decisions by the Appeal Board are well defined. While the grant of such a petition is within the discretion of the Comission.

l as set forth in 10 C.F.R. $ 2.786(b)(4), a petition seeking review of matters of law or policy must present an important question which merits the Comission's review:

A petition for review of matters of law or policy will not ordinarily be granted unless it appears the case involves an important matter that could significantly affect the environment, the public health and safety, or the common defense and security, constitutes an important antitrust question, involves an important procedural issue, or otherwise raises important questions of public policy. i l

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10C.F.R.$2.786(b)(4)(1). When these standards are applied to Joint Intervenors' Petition, it is clear that they have failed to establish that Comission review of ALAB-812 is warranted. $/

Nowhere in their Petition do the Joint Intervenors challenge any aspect of ALAB-812 to the extent that the Appeal Board actually ruled upon and denied portions of their motion to reopen. Rather, the Joint Intervenors assert the following two grounds in support of their request for Comission review: (1) that the Appeal Board deprived them of their right to a hearing by referring to the Comission, rather than deciding on its own, issues which involve investigations being conducted by the Office of Investigations ("0I") (Petition at 1-2); and (2) that "recent equipment failures" at the facility demonstrate that the Appeal Board erred in relying upon the Applicant's reinspection and record review program (Id.at2). In the Staff's view, neither of these assertions merits Comission review of ALAB-812.

With respect to the Appeal Board's referral of OI matters to the Comission for resolution, that action has not deprived the Joint Inter-venors of any opportunity for a hearing which they might otherwise have had. The Appeal Board did not deny their motion to reopen to the extent that it involves matters under review by 01, but instead, explicitly left those matters to be resolved by the Comission. See ALAB-812, slip

-4/ In so stating, the Staf f does not suggest that the Comissior.

should decline to accept the Appeal Board's referral of matters under review Sy the Office of Investigations. On the contrary, the Staff believes that the referral of those matters to the Comission constitutes an appropriate means for achieving a proper and timely resolution of those matters.

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! op, at 72-73. While the Appeal Board stated that nothing which it had i

reviewed gave it "cause for significant concern about the integrity of

! LP&L's manaagement," it expressly declined to deny Joint Intervenors' i

mction on OI matters, stating that it "cannot rule out all possible grounds for Joint Intervenors' charges." Id., at 71-72. Thus, to j.

whatever extent those matters involve a significant health and safety l

issue,El the Comission could still direct that the record be reopened and, accordingly, the Joint Intervenors have not been " deprived" of a

! hearing with respect to those matters. Inasmuch as the Joint Inter-venors have failed to establish that the referral of 01 matters to the  ;

Consission presents an important safety, environmental procedural, public policy, or other issue which warrants Commission review of f

I ALAB-812,theirPetitionshouldbedenied.5/-

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-5/ While the Staff is aware of the general nature of the matters under -

review by OI, we are not privy to all of the detailed information-

. which OI may have provided to the Appeal Board, nor have we reviewed ,

the investigative documents which OI made available to the Appeal i

Board (see ALAB-812, slip op. at 71). . Accordingly, the Staff i expresses no opinion as to whether the information adduced by OI j constitutes significant informatio'n which might have affected the outcome of this proceeding, thereby warranting a reopening of the record to permit litigation of those matters. Further, it would be inappropriate for the Staff to comment upon the significance j of these matters while the other parties to this proceeding are

. unable to present their views.

1/ The Joint Intervenors also appear to assert that the Appeal Board's j . failure to resolve OI issues " prior to Waterford's licensing" has j somehow deprived them of a right et a hearing. See Petition at 2

! and 3-6. However, ALAE-81? was issued some seven months after low

power operation was authorized and some four months after the Com-

mission detennined to permit full power operation of the facility; j clearly, the issuance of ALAB-812 did not lead to the licensing of ,

i j (FOOTNOTE CONTINUED ON NEXT PAGE) .

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With respect to the asserted recent equipment failures at the facility, the Joint Intervenors have failed to establish, or even point to, a nexus between the asserted ' equipment failures and either the information which was presented in support of their motion to reopen or the reinspection and document review activities which were conducted by the Applicant; and they have clearly failed to establish how those matters reflect a failure by the Appeal Board properly to evaluate the acequacy of Applicant's reinspection and record review activities. The Staff dees not perceive that any nexus exists between the asserted equipment failures and Joint Intervenors' motion to reopen, nor do we perceive how those matters reflect the existence of any error on the part of the Appeal Board. Accordingly, these matters do n'ot warrant Commission review of ALAB-812.

In addition, the Joint Intervenors have failed to explain satis-factorily why these matters were not first brought to the attention of the Appeal Board prior to raising them in a petition for Comission review. The Joint Intervenors refer to four instances of asserted equipment failure, based upon the following sources of infonnation:

(1) a newspaper article dated May 13,1985;(2) an NRC Region IV pre-(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) the Waterford facility, and did not deprive'them of an opportunity l

'for a hearing prior to the issuance of the plant's license. Joint Intervenors' complaint in this regard indeed appears to be directed to the propriety of the Commission's prior licensing decisions (see, e.g., Petition at 6 and n.3); and their assertion that the AppeaT-Board's decision in ALAB-812 has somehow deprived them of a right to a hearing before the facility was licensed is incomprehensible and should be rejected.

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. l liminary notification of event or unusual occurrence, dated May 13, '

1985; (3) a newspaper article dated June 4,1985; and (4) a newspaper i article dated July 23, 1985. No reason has been demonstrated as to why the Joint Intervenors failed to bring the first three of these items to the Appeal Board's attention prior to the issuance of ALAB-812. 7/-

Similarly, no reason has been presented as to why they could not have l brought the fourth item to the Appeal Board's attention after ALAB-812 J

was issued, such as in support of a motion for reconsideration, rather

than raising the matter for the first time in a petition for Comission

review. Inasmuch as the Joint Intervenors have not demonstrated why the asserted equipment failures could not have been brought initially I

to the attention of the Appeal Board, to the extent that their Petition 1

relies upon these matters, 10 C.F.R. ! 2.786(b)(4)(iii) requires that it be rejected. 8/ -

, Finally, the Joint Intervenors have requested that their Peti-tion be " construed as a Motion to Reopen the Record on their proposed

-7/ The sole explanation offered by the Joint Intervenors in this regard is as follows: "Because these events occurred after the submission of pleadings to the Appeal Board, Joint Intervenors had no opportunity to present this evidence to the Appeal Board."

. (Petition at 3). Clearly, the Joint Intervenors had every oppor-tunity to present new information to the Appeal Board in support of their motion to reopen, and their " explanation" in this regard is

. wholly unsatisfactory.

8] 10 C.F.R. 9 2.786(b)(4)(iii) provides, in pertinent part, as follows:

A petition for review will not be granted to the extent that it relies on matters that could have been but were not raised before the Atomic Safety and Licensing Appeal Board. . . .

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character and competence contention on the ground of newly discovered evidence." (Petition at 8 n.6). However, the Joint Intervenors have altogether failed to address the requirements for reopening the record to consider such late-filed information, E and they have clearly failed

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to satisfy their burden of demonstrating that thed.r presentation of these matters satisfies the standards governing motions to reopen.

Accordingly, their request that the Commission construe these matters as constituting a motion to reopen should be denied.

CONCLUSION For the reasons set forth above, the Staff submits that Joint Intervenors' Petition for review of ALAB-812 should be denied.

Respectfully submitted,

. s fA l/

Sherwin E. Turk Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 19th day of August,1985 9/ The standards governing motions to reopen are succinctly set forth

. in ALAB-812, and may be summarized as follows. A motion to reopen "must be timely and address a significant safety or environmental issue. The motion must also show that a different result might have been reached had the newly proffered material been considered initially." In addition, the new material offered in support of the motion must be set forth with greater particularity than is )

required for the submission of contentions, and "must be tantamount to evidence." Further, a motion to reopen that raises previously uncontested issues must satisfy the standards for admitting late-filed contentions, as set forth in 10 C.F.R. 5 2.714(a)(1). See  !

ALAB-812, slip op. at 4-5. )

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

LOUISIANA POWER AND LIGHT COMPANY ) Docket No. 50-382

)

(Waterford Steam Electric Station, )

4 Unit 3) )

, CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO JOINT INTERVENORS' PETITION FOR REVIEW" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory

Commission's internal rail system, this 19th day of August, 1985.

Christine N. Kohl, Chairman

• Dr. W. Reed Johnson

• Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Howard A. Wilber* Sheldon J. Wolfe, Esq., Chairman

• Atomic Safety and Licensing Appeal Administrative Judge Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Walter H. Jordan Malcolm Stevenson, Esq.

Administrative Judge Monroe & Lemann 881 West Outer Drive 1424 Whitney Building Oak Ridge, TX 37830 New Orleans, LA 70130 Dr. Harry Foreman, Director E. Blake, Esq.

Administrative Judge B. Churchill, Esq.

. University of Minnesota Shaw, Pittman, Potts &

Box 395, Mayo Trowbridge Minneapolis, MN 55455 180J M Street, N.W.

Washington, D.C. 20036 Luke B. Fontana, Esq. Lynne Bernabei, Esq.

824 Esplanade Avenue Government Accountability Project New Orleans, LA 70116 1555 Connecticut Avenue, N.W.

Suite 202 Washington, D.C. 20036

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. Ian Ccuglas Lindsey, Esq. William J. Guste, Jr., Esq.

7434 Perkins Road Attorney General for the State Suite C Of Louisiana Baton Rouge, LA 70808 234 Loyola Avenue 7th Floor New Orleans, LA 70112 Brian P. Cassidy Regional Counsel, FEMA Carole H. Burstein, Esq.

John W. McCormack Post 445 Walnut Street Office and Courthouse New Orleans, LA 70118 Boston, MA 02109 Atomic Safety and Licensing Board Atomic Safety and Licensing Appeal Panel

• Board Panel

• U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comissicn Washington, D.C. 20555 Washington, D.C. 20555 Docketing and Service Section* Mr. Gary L. Groesch Office of the Secretary 2257 Bayou Road U.S. Nuclear Regulatory Comission New Orleans, LA 70119 Washington, D.C. 20555 Robert D. Martin Samuel H. Chilk*

Regicnal Administrator, Region IV Office of the Secretary U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Parkway Central Plaza Building Washington, D.C. 20555 611 Ryan Plaza Drive, Suite 1000 Arlington, TX 76011 Sherwin E. Turk Deputy Assistant Chief Fearing Counsel e