ML20198B822

Order to Reopen Record to Admit Jordan Chronology Into Evidence as Citizens Concerned About Nuclear Power Inc Exhibit 148.Motion for Board-ordered Production of Sli Rept Dismissed.Motion Denied.Served on 851106

ML20198B822
Person / Time
Site:	South Texas
Issue date:	11/05/1985
From:	Bechhoefer C Atomic Safety and Licensing Board Panel
To:	Citizens Concerned About Nuclear Power, INC.
References
CON-#485-071, CON-#485-71 79-421-07-OL, 79-421-7-OL, LBP-85-42, OL, NUDOCS 8511070270
Download: ML20198B822 (13)

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o SERVED NOV -61095 LBP-85-42 UNITED STATES OF AMERICA a

g<g NUCLEAR REGULATORY COMMISSION

/4 ATOMIC SAFETY AND LICENSING BOARD w. 3 Before Administrative Judges

• NOV-61985" C.

Charles Bechhoefer, Chairman '

/

Dr. James C. Lamb D9gjjg,g 3

Frederick J. Shon ,, swy.nac ,

)

In the Matter of ) 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) ) November 5, 1985

)

MEMORANDUM AND ORDER (Explanation of Rulings on CCANP Motion of 9/30/85)

On September 30, 1985, Citizens Concerned About Nuclear Power, Inc.

(CCANP), an intervenor in this operating license proceeding, filed a

" Motion for Board Ordered Production of Documents, to Reopen the Record, for New Contention, for Discovery, and for Extensions of Time"

(" Motion"). By our Order (Rulings on CCANP 9/30/85 Motion), dated October 16, 1985 (unpublished), we announced summary rulings on the Motion, stating that we would provide our reasons in a forthcoming Memorandum cnd Order. We are doing so here.

1. Background. The Motion in effect seeks to reopen the Phase II evidentiary record to incorporate therein two documents: (a) a report prepared by S. Levy, Inc., on Brown & Root Engineering on the South 8511070270 851105 8 PDR ADOCK O

$50L .

2 Texas Project, dated October 1, 1984 ("SLI Report"); and (b) a handwritten chronology of events from June 26, 1981 to December 16, 1981 prepared by Mr. Don D. Jordan, Chairman of the Board of Directors of Houston Lighting & Power Co. (HL&P), the lead Applicant '" Jordan Chronology"). The Motion also seeks related relief: (a) that we order the Applicants to provide the Board and parties with copies of the SLI Report; (b) that we admit a new contention premised upon the SLI Report; (c) that we permit discovery on two matters: the Applicants' handling of the SLI Report, and the origin, supporting documentation and handling of the Jordan Chronology; and (4) that we grant CCANP a two-week extension of time within which it might file its proposed findings of fact and conclusions of law for the recently completed Phase II hearings.

By our Memorandum and Order dated October 4, 1985 (unpublished), we granted CCANP's request for an extension of time. Furthermore, in their response to the Motion, the Applicants provided the Board and parties with copies of the SLI Report, making moot CCANP's request for Board-ordered production of that document.

With respect to the remainder of CCANP's Motion, the Applicants, on October 10, 1985, filed a response which offered no objection to the incorporation of the Jordan Chronology into the record but opposed reopening the record for the SLI Report. The Applicants also opposed the new contention and the discovery requested by CCANP (although, as noted above, they provided the Board and parties with copies of the SLI Report). By its response dated October 15, 1985, the NRC Staff opposed

3 reopening the record for either document, as well as the other relief requested by CCANP (excluding that on which we had already ruled or which had become moot by virtue of the Applicants' response).

In our sumary October 16, 1985 Order, we ruled that we would admit into the Phase II record the Jordan Chronologylbut would deny admission of the SLI Report. (We issued the Order at an early date to accomodate the date we had established for CCANP to file its Phase II proposed findings, which now could reference the Jordan Chronology.) We also denied CCANP's proposed new contention, and the additional discovery which CCANP had requested.

2. Standards. The Commission's standards for reopening the record of a proceeding are well recognized. As we have recently pointed out, a proponent of a motion to reopen a record bears a heavy burden. Under normal circumstances, such a motion must satisfy three criteria:

(a) The motion must be timely filed; (b) It must address a significant safety (or environmental) issue; and (c) It must demonstrate tha" the information sought to be added to the record might alter a result previously reached.

1 We denominated the Jordan Chronology as CCANP Exhibit 148 and requested the Applicants to provide copies to the NRC's Docketing and Services Branch. By their letter dated October 17, 1985, they promptly complied with our request.

4 LBP-85-19, 21 NRC 1707, 1720 (1985) and cases cited; see also our Phase I Partial Initial Decision, LBP-84-13,19 NRC 659, 716 (1984), affd.,

ALAB-799, 21 NRC 360, 381 (1985). Furthermore, when a party seeks to reopen a record to consider a new contention, it must also demonstrate that the factors in 10 CFR 9 2.714(a) relating to late-filed contentions have been satisfied. Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 14 (1985).2 CCANP raises no question as to the first two of the reopening-the-record criteria but claims the third not to be applicable where, as here, no decision has yet been rendered. The Applicants and Staff disagree as to the third criterion, finding it applicable with respect to the current motion.

2 These factors are (i) Good cause, if any, for failure to file on time.

(ii) The availability of other means whereby the petitioner's interest will be protected.

(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.

(iv) The extent to which the petitioner's interest will be represented by existing parties.

(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.

A 5

CCANP is technically correct in its claim that, before a decision on a question has been reached, a motion to reopen the record need not--indeed, cannot--demonstrate that a different result would have been reached. That is so since no result has in fact yet been reached. See Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-50, 18 NRC 242, 248 (1983). Nonetheless, as we observed in LBP-84-13, supra, 19 NRC at 716, n. 43, with the record closed on the portion of the proceeding with respect to which new infomation is being proffered, it is appropriate for us to consider (in the context of the materiality or significance of the information in question) whether the additional information might potentially alter the result we would reach in its absence.3 We have done so here.

In evaluating the significance of newly proffered information, we may consider whether the infomation is new factual information.

Differing analyses of experts on factual information already in the record do not normally constitute the type of information for which reopening of the record would be warranted. I_d,. at 718-19; Pacific Gas 3 In LBP-84-13, the motion to reopen the record was filed prior to our ruling on the issue in question but subsequent to the submission of proposed findings by all parties. To the same effect, see Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 804 (1979), vacated in part on other grounds, CLI-80-8, 11 NRC 433 (1980). Here, the motion was filed subsequent to (but on the same day as) the filing of the Applicants' proposed findings and prior to the filing of proposed findings by other parties. In this context, we find no compelling reason for not considering the effect of the information on the result we would otherwise reach.

a O

6 and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

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

We turn now to the application of these standards to the two documents for which CCANP seeks to reopen the record.

3. SLI Report. By letter dated October 9, 1984, the Licensing Board and parties were advised of the SLI Report, dated October 1, 1984.

That report had been prepared by a technical consultant of the Applicants in conjunction with the Applicants' lawsuit in Matagorda County, Texas, against Brown & Root, Inc. (B&R), the former architect engineer, construction manager and constructor of the South Texas Project (STP). The SLI Report was subject to a protective order of the Texas court, which was dissolved on May 30, 1985.

4 The SLI Report is a two (2) volume, 541-page evaluation of B&R's engineering activities on the STP. In that respect, it is similar to the Quadrex Report which was the subject of Phase II litigation. In addition, the SLI Report was an overview of the review of Quadrex Report findings previously performed by Bechtel Corp. (Applicants' Exhibit 63) together with a review of some of Bechtel's redesign activities. As set forth in the SLI Report (at 11):

The specific findings in this report on Brown

& Root's engineering work reflect an historical review of certain areas of B&R engineering and its management, SLI's evaluation of data in the Bechtel work packages, and a review of some 4

Our page count differs from the "650-page" description included in CCANP's Motion and the Staft's response.

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7 Bechtel redesign work.

According to the Applicants, the SLI Report represents an expert consultant's anaylsis of information obtained though lawsuit discovery from 1982-84.

None of the issues. admitted for litigation in Phase II questions the adequacy of B&R's engineering, or the adequacy of engineering at STP following the replacement of B&R by Bechtel. As we understand it, the issue as to which CCANP seeks to reopen the record to include the SLI Report is CCANP Contention 9, which questions the adequacy of HL&P's reporting of the Quadrex Report to NRC pursuant to 10 CFR S 50.55(e).

CCANP asserts that the SLI Report is relevant to the reportability of the Quadrex Report and of particular Quadrex findings. It asserts that this issue is significant--a point with which no party disagrees.

But it fails to explain the significance of the information in the SLI Report to Contention 9, either in terms of its effect on the result to be reached or in the manner in which the SLI Report would bear on information already in the record (see Motion, pp. 17-19). All that CCANP does in this regard is to set forth certain SLI Report excerpts bearing upon Quadrex Report findings which Contention 9 claimed to be reportable. CCANP also references certain SLI Report excerpts which, it claims, support its position that the Quadrex Report as a whole should

-have been reported to NRC as a QA breakdown pursuant to 10 CFR 6 50.55(e).

Applying the reopening criteria, we agree that the issue to which the SLI Report is .said by CCANP to relate is significant. We decline to

D ,

8 rule on questions of the timeliness of CCANP's Motion, although we 1

believe the Applicants and Staft have raised valid questions as to why CCANP could not have obtained the SLI Report and filed its motion earlier. (In particular, we understand that CCANP never sought this report from the Applicants.)

Dispositive of CCANP's Motion insofar as it seeks to reopen the record to include the SLI Report, however, is the lack of materiality of this report to CCANP Contention 9. In our view, the SLI Report appears to be no more than a further expert opinion on facts already in the record. This is not the type of information for which reopening a record is generally warranted. Diablo Canyon, ALAB-644, supra. In this case, it is the information available to HL&P in 1981 that determines-

-the reportability of the Quadrex Report, not a subsequent evaluation of that information in the light of later-acquired information. Indeed, earlier in this proceeding, at the behest of CCANP, we declined to admit into evidence a 1982 Bechtel review of Quadrex findings offered by the Applicants (Work Package EN-619, Applicants' proposed Exhibit 64) to demonstrate (in part) that some of the Quadrex findings were not as serious as they appeared to be when the Quadrex Report was issued and hence did not represent reportable " deficiencies" (see Tr. 13464-70).

For reasons similar to those causing our rejectio'i of Applicants' Exhibit 64, we here decline to accept into evidence the SLI Report.

Accordingly, we decline to reopen the record for that purpose.

4. SLI Report (new contention). CCANP also seeks to introduce a new contention which asserts that the Applicants violated their

9 obligations under the McGuire doctrine by not providing copies of the SLI Report to the Board and parties during the Phase II hearings. This proposed contention is by definition late-filed, since it was not (indeed, could not have been) submitted in 1978, during the period when contentions were initially required to be filed. For that reason this contention is subject to a balancing of the five factors bearing u'pon late-filed contentions set forth in 10 CFR 9 2.714(a).

CCANP fails to address these factors. Its proposed new contention could be dismissed on that basis alone. C_f. Waterford, ALAB-812, supra, 22 NRC at 16. But its motion for a new contention must be denied for a O more fundamental reason: it fails to meet the materiality standards for reopening the record.

The McGuire doctrine requires advice to a Licensing Board of

~

matters " relevant anc material" to issues pending before that Board.

LBP-85-6, 21 NRC 447, 461 (1985), and cases cited. As we have explained, the SLI Report is not material to CCANP Contention 9, the only contention as to which CCANP claims any relevance. CCANP has made no real effort to demonstrate the materiality of the SLI Report to any issue accepted for litigation in Phase II. Absent such a connection to a Phase II issue, the Applicants would not have been obligated by the McGuire doctrine to supply copies of the report to us and the parties.

Furthermore, the Applicants kept us informed in a timely fashion l

about the existence of the report. Their October 9, 1984 letter 1 I

advising of the report was sent little more than a week following the l issuance of the report on October 1, 1984. The report's nature was l l

1

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10 discussed in the letter and briefly at the October 16, 1984 prehearing l conference (Tr. 10859-62), where we concluded that it probably was not relevant to Phase II issues. We discussed the report again at the outset of the Phase II hearings, when we were advised that the protective order imposed by the Matagorda County Court had been lifted.

We advised CCANP that it could bring to our attention anything in the report it believed to be "specifically relevant" to Phase II issues (Tr.

11268-270). Prior to its current Motion, CCANP made no attempt to do so.

Our present examination of the SLI Report convinces us that it is not material to the Phase II issues before us. We stress again that, at the time the SLI Report was released from the protective order of the Matagorda County Court, the issues open for litigation in Phase II (insofar as they might be affected by the SLI Report) concerned only the reportability of the Quadrex Report and not the adequacy of B&R's engineering efforts. That being so, there was no McGuire violation in the Applicants' failure to provide the SLI Report to us. For that reason, CCANP has not satisfied the standards for reopening the record to include its proposed new McGuire contention.5

5. Jordan Chronology. The second document as to which CCANP seeks to reopen the record is a handwritten diary or chronology of events 5 Given this ruling, we need not undertake a balancing of the five factors of 10 CFR Q 2.714(a) governing late-filed contentions.

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prepared by Don D. Jordan, Chairman of the Board of Directors of HL&P, covering the period June 26, 1981 through December 15, 1981. Mr. Jordan testified during the Phase II hearings, and certain of the entries in the chronology are clearly relevant to that testimony. CCANP claims, and the other parties acknowledge, that the Jordan Chronology-should have been provided to the Board and parties by virtue of the direction included in LBP-85-19, supra, 21 NRC at 1730-31. The Applicants explained, and' apologized for, their failure to supply it (along with other documents which they provided on July 2, 1985), as an inadvertent error by counsel.

The Applicants and Staff claim that the matters set forth in the Jordan Chronology, to the extent relevant to Phase II issues, are cumulative of matters already in the record. The Staff would accordingly deny reopening the record to include this document. Th'e Applicants also assert that the document does not satisfy the standards for reopening the record; but, inasmuch as their error prevented CCANP from introducing it earlier, they do not object to its admission into evidence.

In our view, the Jordan Chronology clearly would have been admissible if CCANP had offered it during the hearings. We also believe that the stringent standards for reopening a record need not always be applied with full force, particularly where, as here, the proponent of reopening the record was prevented by the inadvertent error of another -

party from offering the document earlier. See also Carolina Power &

Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), LBP-78-2, 7

'4 12 NRC 83, 85 (1978) (lower threshhold of significance where new evidence can be received with little or no burden upon the parties). Finally, reopening the record to include the Jordan Chronology will not result in any delay in the proceeding; we specifically announced our ruling early to avoid any such delay.

In view of the above considerations, we have reopened the record to include the Jordan Chronology, which is to be designated as CCANP Exhibit 148.

6. Discovery. CCANP has asked for discovery concerning two matters: (a) the handling of the SLI Report as it relates to CCANP's

. proposed new contention, and (2) the origin, supporting documentation, and handling of the Jordan Chronology.

With respect to the first of these requests, discovery would not be appropriate since we have denied admission of the proposed contention (see paragraph 4, supra). 10 CFR Q 2.740(b)(1) (discovery shall relate only to matters in controversy); LBP-85-19, supra, 21 NRC at 1729; Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 467 n. 12 (1982).

As for the Jordan Chronology, the document is being offered by CCANP primarily on a collateral issue--the role of Applicants' lead counsel in the decision to replace B&R, While the answer to that question may have some bearing on the honesty and candor which we accord to the testimony of certain of Applicants' Phase II witnesses, we do not view that circumstance as sufficient, at this late date, for reopening discovery. Furthermore, one of the bases for our reopening the record i

O 13 to admit the Jordan Chronology (CCANP Exhibit 148) was the absence of significant burden on the parties by virtue of doing so. Discovery would undermine that basis. For these reasons, we are denying the request for discovery on the Jordan Chronology.

For the reasons set forth sbove, and confirming our Order dated October 16, 1985, it is this 5th day of November,1985 ORDERED

1. That CCANP's Motion dated September 30, 1985, to reopen the record to admit the Jordan Chronology is granted; the Jordan Chronology is admitted into evidence as CCANP Exhibit 148;

2. That CCANP's Motion for Board-ordered production of the SLI Report is dismissed as moot;

3. That in all other respects (and except as ruled upon by our Memorandum and Order dated October 4,1985, granting CCANP an extension of time within which to file its proposed findings of facts and conclusions of law) CCANP's September 30, 1985 Motion is denied.

l FOR THE ATOMIC SAFETY AND l LICENSING BOARD f lw A)

Charles Bechhoefer, Chaign ADMINISTRATIVE JUDGE

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