ML20236E674

Memorandum & Order.* Intervenor,Citizens Concerned About Nuclear Power,Inc,870529 Motion to Reopen Record of Facility Licensing Hearings & Request for Stay of Fuel Loading Denied.Served on 870724

ML20236E674
Person / Time
Site:	South Texas
Issue date:	07/24/1987
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Citizens Concerned About Nuclear Power, INC.
References
CON-#387-4097 2.206, OL, NUDOCS 8708030045
Download: ML20236E674 (3)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COPtilSSION

'87 JUL 24 A9:18 COMMISSIONERS: .;r: .

00C8; Lando W. Zech, Jr. , Chairman g .,. %-

Thomas M. Roberts Frederick M. Bernthal Kenneth M. Carr SERVED JUL 2 41987

)

In the Matter of. )

HOUSTON LIGHTING AND POWER COMPANY Docket Nos. 50-498-OL 50-499-OL (SouthTexasNuclearPlant) I i

MEMORANDUM AND ORDER On May 29, 1987, intervenor Citizens Concerned About Nuclear Power, Inc. i (CCANP) moved to reopen the record of the South Texas nuclear plant (STNP) licensing hearings. Based on the April 9, 1987 testimony of NRC witnesses.

before the Senate Comittee on Governmental Affairs, CCANP claims there is evidence of intimidation and harrassment of NRC personnel in Region IV which may justify altering the Licensing Board's STNP decisions. Furthermore, CCANP seeks suspension of fuel loading currently scheduled for June,1987, until resolution of the matters in the motion.

The utility filed an informal response on June 4,1987, arguing that CCANP's motion is an unauthorized pleading.

The Comission declines to entertain CCANP's motion to reopen. A motion to reopen under 10 CFR 2.734 goes to the need for further hearings in I

a formal matter which is pending before the Commission. 51 Fed. Reg. 19535, 19538(1986). The Licensing Board concluded hearings on the application for 870B030045 B70724 PDR ADOCK 05000498 g;)

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' 2 operating licenses for STNP in 1986. The Appeal Board in ALAB-849 (24 NRC 523) sua sponte reviewed and affirmed two Licensing Board partial initial decisions. See LBP-86-15, 23 NRC 595; LBP-86-29, 24 NRC 295. The Comission did not review ALAB-849, and it became a final agency decision in December, 1986. CCANP did not appeal the Licensing Board decisions, did not petition for review of ALAB-849, and did not seek timely judicial review pursuant to 28 U.S.C. 2344 (1987). Because the decision in the adjudicatory proceeding has become final, Commission consideration of the motion to reopen is l

inappropriate. See Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units I and 2), ALAB-530, 9 NRC 261 (1979).

This does not necessarily leave movant remediless. If new evidence arises after an issue has been fully litigated and a final agency decision has been rendered, one may seek relief by petitioning the staff under 10 CFR 2.206. See Carolina Power & Light Company (Shearon Harris Nuclear Power Plant), CLI-79-5, 9 NRC 607, 610 (1979); Florida Power and Light Company (St. 1 Lucie Nuclear Power Plant, Unit No. 2), ALAB-579,11 NRC 223 (1980). CCANP may be able to obtain the relief that it seeks pursuant to a petition for an enforcement proceeding under 10 CFR 2.206. Therefore, the Commission will treat CCANP's filing as a 2.206 petition and refer the matter to the staff to determine whether any of the matters raised by the movant would warrant initiation of proceedings against the licenses for the South Texas Project.

i The appropriate staff director has the discretion to differentiate between those petitions which indicate that substantial issues have been raised warranting institution of a proceeding and those which seek to reopen issues previously resolved. Northern Indiana Public Service Company (Bailly ,

Generating Station, Nuclear 1), CLI-78-7, 7 NRC 429, 434 (1978), aff'd, 606 F.2d 1363 (D.C. Cir. 1979). We need not and will not consider whether the .

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assertions in the motion are sufficient to warrant granting the institution l of a proceeding. That issue will be left for the staff to determine, subject 1

to our discretionary review under 10 CFR 2.206(c). See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALA8-513, 8 NRC 694,696(1978).

Furthermore, the Comission will not suspend fuel loading pending resolution of the matters in the motion, because CCANP has made no showing under 10 CFR 2.788 regarding the requisites for issuance of a stay.

Therefore, the motion to reopen is denied and will be referred to the staff for consideration under _10 CFR 2.206, and the request for stay of fuel loading is denied. See Florida Power and Light Company (St. Lucie Nuclear Power Plant, Unit 2), supra,11 NRC at 226.

It is so ORDERED.

g For the Comission*

g ( 5

% g j. SAMUELyJ. CHILK Secretary of \the Comission 4, % s+4 ,.d l

l Dated at Washington, D.C.

i

- this N 'cday of July,1987.

• Commissioner Carr was not present for the affirmation of this order.

If he had been present, he would have approved it.

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