ML20214T267
| ML20214T267 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 06/04/1987 |
| From: | Newman J AUSTIN, TX, CENTRAL POWER & LIGHT CO., HOUSTON LIGHTING & POWER CO., NEWMAN & HOLTZINGER, SAN ANTONIO, TX |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| CON-#287-3678 LBP-86-15, OL, NUDOCS 8706100183 | |
| Download: ML20214T267 (6) | |
Text
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NEWMAN & HortrZINGER, P.C.
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PAUL J. SAVIOGE' MOAN P. GALLEN THOMAS A. SCMMUTE OONALO J. SaLVERMAN JACOLYN A SJMMONS MICHAEL F. MCALY ROSERTM. SOLOMON ROSCRT 1. WHITE JOSEPME.STUSGS SCOTT A MAAMAN NANCY A WHITE #
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"<a*< T a coaa June 4, 1987 ERNEST C. SATNARO. NI 0FCounSEL Samuel J. Chilk, Secretary Office of the Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Re:
Houston Lighting & Power Co., et al.
South Texas Project, Units 1 & 2 2
Docket Nos. 50-498 OL, 50-499 OL
Dear Mr. Chilk:
On May 29, 1987, Citizens Concerned About Nuclear Power, Inc. (CCANP) filed with the Commission a motion to reopen the record in the hearing on the application for licenses to operate the South Texas Project (STP) and to suspend operation of the t
l-Project pending a reopened hearing (the Motion).
Since we believe the Motion is an unauthorized pleading, Houston Lighting & Power Company (HL&P) does not intend to file a formal response unless the Commission indicates that such a response would be appropriate. 1/
1 The CCANP Motion is an unauthorized pleading because the adjudicatory proceedings involving the STP application for operat-ing licenses have been completely terminated and the resulting decisions have become final agency action (and consequently CCANP
_1_/
The timing of the CCANP Motion should be viewed in the context of the scheduled fuel load date for Unit 1 of the South Texas Project.
HL&P advised the Director of Nuclear Reactor Regulation by letter dated May 26, 1987, (ST-HL-AE-2149) that Unit 1 will be ready to commence loading fuel as early as June 23, 1987.
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a Samuel J. Chilk, Secretary June 4, 1987 Page Two has ceased to be a party to a proceeding).
The extensive Atomic Safety and Licensing Board (ASLB) hearings on the application for operating licenses for STP were concluded in 1986.
At that time the Appeal Board, in ALAB-849 (24 NRC 523 (1986)), reviewed sua sponte and affirmed the Licensing Board's Partial Initial Decision (Operating License (Phases II/III)) (LBP-86-15, 23 NRC 595 (1986)) and Partial Initial Decision (Authorizing Operating Licenses) LBP-86-29, (24 NRC 295 (1986)).
The Commission declined to review ALAB-849 and it became final agency action on December 1, 1986.
See December 9, 1986, Memorandum for Board and Parties e
from Samuel J. Chilk, Secretary of the Commission.
CCANP did not appeal either of these two Licensing Board decisions, did not seek review of ALAB-849, did not file any comments on whether these decisions should be made immediately effective pursuant to 10 CFR S 2.764 and did not seek judicial review within the time allotted by 28 USC S 2344 (1987).
In such circumstances there is no longer an opportunity for CCANP to move to reopen the record.
E.g.,
Carolina Power and Light Company (Shearon Harris Nuclear Power Plant Units 1, 2, 3 and 4), CLI-79-10, 10 NRC 675 (1979) and CLI-79-5, 9 NRC 607, 610 (1979); Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551, 9 NRC 704, 707-09 (1979).
See also 10 CFR S 2.786(b)(9) (1987).
In some instances, the Commission has responded to a motion to reopen the record of an already terminated proceeding by advis-ing the moving party of his right to file a petition for a new proceeding pursuant to 10 CFR S 2.206, or by referring the motion to the appropriate Director to be addressed as if it were filed pursuant to Section 2.206.
- See, e.g.,
Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-579, 11 NRC 223, 225-26 (1980); Public Service Co. of New Hampshire (Sea-brook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 696 (1978).
Neither course would be appropriate in this case because the Motion does not allege any facts that could form the basis for such a petition.
Instead it explicitly seeks to relitigate issues CCANP has already litigated.
Motion at 23-24.
Accordingly, consideration of CCANP's Motion as if filed pursuant to Section 2.206 is also barred.
E.g., Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 NRC 429, 433-34 (1978). 2/
2/
Moreover, CCANP's Motion fails to meet the requirements set forth in 10 CFR S 2.734 governing motions to reopen (particularly the requirement to provide supporting affidavits) and does not satisfy the criteria set forth in 10 CFR S 2.783 for issuance of a stay.
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- NawwAw & EcLTztwssn. P. C.
4, Samuel J. Chilk, Secretary June 4, 1987 Page Three 4
While we.believe no formal response to the Motion is necessary, should the Commission nevertheless decide to consider the Motion, HL&P hereby requests leave to file a response.-
Such a response
.would analyze the record of the hearing and show that there is no basis for reopening that record; and that the motion is simply a polemic directed against the Commissioners, the Executive Director
- for Operations, and the management of NRC's Region IV office,
.largely based on Congressional hearings held in April.1987 which focus for the most part on Commission. activities at the Comanche Peak project. 3/
CCANP's strained attempts to tie these charges e
to the STP are bizzare.
One or two illustrations make the point.
CCANP relies to a large extent on the testimony of H. Shannon Phillips (an NRC inspector from Region IV) at the Congressional hearings and on a transcript of an " Investigative Interview" that was made part-of the record of that hearing, as its basis for questioning whether harassment and intimidation from the management of NRC Region IV improperly influenced testimony of NRC Staff
' witnesses in the STP hearings before the ASLB.
In particular, CCANP: focuses on the 1982 ASLB testimony of an NRC witness panel that consisted of Mr. Phillips and Messrs. D.W.
Hayes and Robert E. Shewmaker.
At pp. 17-19 of the " Investigative Interview", the suggestion is made that, as an NRC Inspector, Mr. Phillips was " strong willed, meticulous and capable" and implicitly that he was " tough" on the licensees at STP and, therefore, regarded suspiciously by some NRC personnel in connection with his subsequent work at Comanche Peak.
The record shows, indeed, that Mr. Phillips took
-bold, tough action at STP as a member of a special investigation 2
team whose work led to a Show Cause Order at STP in 1980.
Never-theless, in their?l982 ASLB testimony about the results of that special investigation, Mr. Phillips and the two other NRC witnesses 3/
CCANP's counsel, in describing the instant pleading at a press conference in Austin on May 29, 1987, is quoted in l-the Houston Chronicle (May 30, 1987) as stating:
We are raising the straightforward issue of NRC corruption.
Has the NRC become so corrupt in its regulatory practices and atti-tudes that we cannot have confidence in the safety of the South Texas Nuclear Project?
That's the issue we want litigated.
e
-NawwAx & Hat.Tzzwonn, P. C.
i Samuel J. Chilk, Secretary i:
. June 4, 1987 Page Four
.~
testified to the numerous factors which persuaded them of HL&P's good character.as an NRC~ licensee, of its openness and cooperation withLthe NRC, and of its strong desire to comply fully with NRC requirements and to have a "model" quality assurance program.
E.g. Tr. 9842-64.. When cross-examined by CCANP counsel regarding the origin of this testimony, Mr. Phillips stressed the voluntary nature of his testimony and replied that he had received no assist-ance from other Staff members in preparing his oral statements and that he "was up until 1:15 last night working on it by [him]self."
Tr. 9872; see.also Tr. 9848-51.
Not only does CCANP ignore the clearly voluntary and even
' determined nature of this testimony, but it fails to explain why actions of Region IV managers in 1985 would reflect on testi-mony given in 1982.
It also ignores the fact that the other two members of the witness panel generally endorsed Mr. Phillips' i
opinions (Tr. 9864-67) and that they were not even part.of Region
- n/. 4/
obviously there'is absolutely no basis for relating Mr. Phillips' 1987 Congressional-testimony to the STP hearing, nor for any suggestion that either Messrs. Phillips, Shewmaker, or Hayes were under. pressure from Region IV management.
CCANP also cites testimony before the Senate Committee contain-
~
ing criticisms of Region IV's classification.at Comanche Peak of inspection findings as "open items" rather than as violations (Motion at 11-12, 16-17), and argues that in ruling upon a motion for summary disposition in the STP proceeding, the ASLB improperly relied upon the Staff's identification'of "open items" versus-
" violations" in pertinent inspection reports.1 Motion at 21-23.
l What CCANP's Motion ignores is that the relevant portion of the ASLB's grant of summary disposition was based upon CCANP's failure to raise any material factual issue.
As the ASLB emphasized:
CCANP's general claim is not based on reasons why particular open items should instead have been violations.
CCANP did not even attempt to relate particular open items to the NRC criteria for violations.
See 10 C.F.R. Part 2, Appendix C.
Thus it failed 4/
Mr. Hayes was Chief of Reactor Project Support Section 1-B of NRC Region III.
Tr. 9563.
Mr. Shewmaker was Senior Civil Structural Engineer in the Division of Quality Assurance and-Engineering in Headquarters, NRC, Office of Inspection and Enforcement.
Tr. 9562-63.-
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Samuel J. Chilk, Secretary June 4, 1987 Page Five to set forth a material fact in dispute concern-ing the open-item system.
LBP-86-15, 23 NRC 595, 635-36.
In summary, it is apparent that CCANP, as a former party to a terminated proceeding, has no right to move to reopen the record.
However, if the Commission decides to consider the Motion on its merits, HL&P requests an opportunity to file a formal response.
Respectfully submitted,
)Y ack R.
Newman Attorney for Houston Lighting
& Power Company, Project Manager of the South Texas Project, acting herein on behalf of itself and the other Applicants, CITY OF SAN ANTONIO, TEXAS, acting by and through the City Public Service Board of the City of San Antonio, CENTRAL POWER AND LIGHT COMPANY and CITY OF AUSTIN, TEXAS l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION t
. BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
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HOUSTON LIGHTING & POWER
)
Docket Nos. 50-498 OL COMPANY, ET AL,
)
50-499 OL
)
(South Texas Project, Units 1
)
and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the letter to Samuel J.
Chilk from Jack R. Newman dated June 4, 1987, have been served on the following individuals and entities by deposit in the United States mail, first class, postage prepaid, or by arranging for messenger delivery as indicated by asterisk, on this 4th day of June 1987.
Mrs. Peggy Buchorn Atomic Safety and Licensing Executive Director Board Citizens for Equitabl6 U.S. Nuclear Regulatory Utilities, Inc.
Commission Route l', Box 1684 Washington, D.C.
20555 Brazoria, TX 77422 Atomic Safety and Licensing Brian Berwick, Esq.
Appeal Board Assistant Attorney General U.S. Nuclear Regulatory For the State of Texas Commission Environmental Protection Washington, D.C.
20555 Division P.O. Box 12548, Capitol Station Docketing and Service Section Austin, TX 78711 Office of the Secretary U.S. Nuclear Regulatory Lanny Alan Sinkin, Esq.*
Commission Christic Institute Washington, D.C.
20555 1324 North Capitol Street, N.W.
Washington, D.C.
20002 Oreste Russ Pirfo, Esq.*
Robert G. Perlis, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Y-W
.-