ML20198B799

Motion Opposing Intervenor 851016 Motions to Reopen Phase II Record.Stds for Reopening Record Not Met.Certificate of Svc Encl

ML20198B799
Person / Time
Site:	South Texas
Issue date:	11/05/1985
From:	Perlis R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#485-073, CON-#485-73 OL, NUDOCS 8511070258
Download: ML20198B799 (6)

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November 5,1985 i

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NUCLEAR REGULATORY COMMISSION -

s1 NOV-61985> 51? l BEFORE THE ATOMIC SAFETY AND LICENSING BOAR h g c g g f' Qy u.c:. usa

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In the Matter of ) n

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HOUSTON LIGHTING AND POWER COMPANY,)

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Docket Nos. 50-498 50-499 Q

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(South Texas Project, Units 1 & 2) )

NRC STAFF RESPONSE TO CCANP MOTIONS TO REOPEN THE PHASE II RECORD: II & III On October 16, 1985, CCANP filed two motions to reopen the Phase II Record (denominated as "II" and "III", respectively). CCANP subsequently advised the Staff that it wished to withdraw Motion III. II The Staff herein responds to Motion II. For the reasons presented below, the Staff submits that the Motion should be denied.

I. LEGAL STANDARDS FOR RE0PENING The Staff recently addressed the legal standards for reopening the record in its October 15, 1985 Response (at pp. 3-4) to another motion to reopen filed by CCANP. Rather than repeat that discussion herein, we briefly summarize the applicable standard: the proponent of a motion to

-1/ On October 29, 1985, CCANP formally filed a motion to withdraw Motion III from consideration by the Board. .The Staff does not oppose the motion to withdraw and, unless the Board wishes otherwise, does not intend to address further Motion III.

8511070258 851105 PDR ADOCK 05000498 G PDR DO

r reopen bears a heavy burden, and must demonstrate that the motion is timely, addresses a significant safety issue, and seeks to introduce information that has the potential to alter the result which might have been reached if the information were not considered.

II. CCANP'S MOTION CCANP wishes to have the Board reopen the record for the purpose of admitting the typed version of notes taken by a Mr. Thrash of four South Texas Management Committee meetings. These meetings took place on December 4, 1980; February 19, 1981; February 20, 1981; and March 19, 1981. The meetings addressed a number of issues; each meeting contained some (typically brief) mention of the review of Brown and Root engineering by Quadrex. See Proposed Exhibit 1 at 80224; Proposed Exhibit 2 at 81037; Proposed Exhibit 3 at 81051; Proposed Exhibit 4 at 81065-66. The official minutes of the last three meetings were admitted into the Phase II record as CCANP Exhibits 108 and 109; as CCANP points out in the Footnote at Page 5 of its Motion, the minutes contain less information on the Quadrex review than do the notes taken by Mr.

Thrash. 2/

-2/ CCANP appears to see some significance in the editing process that resulted in the final version of the minutes. The Staff has compared Proposed Exhibits 2,3 and 4 with CCANP Exhibits 108 and 109; the minutes generally track the notes taken, but they are not close to a verbatim iteration of the notes. There are differences in the portions relating to Quadrex, but there are clearly differences in most of the other portions as well; in general, the notes contain more information than do the minutes.

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l As noted above, CCANP has the burden of demonstrating that the notes are being timely submitted to the Board, address a significant safety issue, and have the potential to affect the Board's decision. The motion clearly fails the timeliness test. CCANP concedes that it could have requested these documents during discovery (Motion at 6, 8). Even if CCANP acted in a timely fashion upon first becoming aware of the documents (a matter at which the Staff can only guess, since CCANP did not indicate when and how it received the documents), its failure to procure the documents in a timely fashicn prevented the possibility of introducing the documents into the record at the hearing and deprived the parties of the opportunity to adduce evidence concerning the meaning and import of the documents.

Had CCANP acquired the documents in a timely manner (and offered

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them at the appropriate time), a motion to reopen the record would clearly not have been necessary. Application of the last two reopening standards to the facts of this case provides a good example of why documents should be presented for admission during an evidentiary hearing as opposed to afterwards, and why untimely motions to reopen are generally disfavored. CCANP contends that these documents prove that Applicants were untruthful in their testimony before the Board and lack the integrity to be granted an operating license for the South Texas Project. The Staff does not dispute that these allegetions address a serious safety issue. However, the Staff does not believe that CCANP has carried its burden of demonstrating that the documents would in fact affect the Board's decision by calling into question Applicants' integrity. First of all, it must be kept in mind that underlying CCANP's

Motion is the presumption that the findings of Quadrex were so adverse to the South Texas Project that the Applicants had a strong basis to withhold the document from the NRC. In fact, the evidence of record indicated that, beyond those items reported to the ""lC, no additional Quadrex findings were reportable un'erd 10 CFR 550.55(e). See, e.g.,

Staff Ex. 136, NUREG-0948; Johnson et al., ff. Tr. 14846; Applicants' Ex.

63, Bechtel Task Force Review. Moreover, the documents address the matters cited by CCANP (the commissioning of the Quadrex report and the relevance of that report to the Phase I hearings) only in a cursory and ambiguous way. By themselves, the documents are susceptible to many interpretations, none of which are entitled to conclusive (or indeed much, if any) weight. The admission of the documents standing alone would provide the Board with no evidence of any probative value; it follows that the documents should not affect the Board's decision.

In sum, CCANP did not submit the documents in a timely fashion, and that party has not carried its burden of demonstrating that the documents would be likely to affect the Board's decision. CCANP has thus failed to meet the standard for reopening the record.

III. CONCLUSION For the reasons presented above, the Staff submits that CCANP's Motion to Reopen: II should be denied.

Respectfully submitted,

//

</ i Robert G. Perlis Counsel for NRC Staff Dated at Bethesda, Maryland this 5th day of November, 19PF

Q} pr.ru 'Q UNITED STATES OF AMERICA 3 NUCLEAR REGULATORY COMMISSION + H0V - 619851" sEf[cEsbt

" "U BEFORETHEATOMICSAFETYANDLICENSINGBOARDj .

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In the Matter of )

HOUSTON LIGHTING AND POWER COMPANY, Docket Nos. 50-498 ET AL.

) 50-499

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(South Texas Project, Units 1 & 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO CCANP MOTIONS TO RE0 PEN THE PHASE II RECORD: TI & III" 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 mail system, this 5th day of November, 1985.

Charles Bechhoefer, Esq., Chairman

• 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 Dr. James C. Lamb III Administrative Judge Jack R. Newman, Esq.

313 Woodhaven Road Newman & Holtzinger, P.C.

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

Washington, DC 20036 Mr. Frederick u. Shon Administrative Judge Atomic Safety and Licensing Board Mrs. Peggy Buchorn Panel Executive Director U.S. Nuclear Regulatory Commission Citizens for Equitable Utilities, Washington, DC 20555 Inc.

Route 1, Box 1684 Melbert Schwarz, Jr., Esq. Brazoria, TX 77442 Baker and Botts One Shell Plaza Houston, TX 77002 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 Comission Washington, DC 20555

~ Ray Goldstein, Esq.

Gray, Allison & Becker 1001 Vaughn Bldg.

807 Brazos Austin, TX 78701 Docketing and Service Section*

Office of the Secretary U.S. Nuclear Regulatory Comission Washington, D.C. 20555

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Robert G. Perlis Counsel for NRC Staff