ML19318A142

Response in Opposition to Citizens Concerned About Nuclear Power & Citizens for Equitable Utils Request for Hearing Re IE 800430 Order to Show Cause.Petitioners Failed to Establish Right to Hearing.Certificate of Svc Encl

ML19318A142
Person / Time
Site:	South Texas
Issue date:	06/13/1980
From:	Cowan F, Culp R BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	NRC COMMISSION (OCM)
References
NUDOCS 8006180506
Download: ML19318A142 (13)

Text

4>{'yy <. p#.- o 6-13-80 -

UNITED STATES OF AMERICA .![ , gyp i NUCLEAR REGULATORY COMMISSION pi j\)U i In the Matter of f HOUSTON LIGHTING & POWER COMPANY ) Docket Nos. 50-498

) 50-499 (South Texas Project, Units )

1 and 2) )

)

LICENSEE'S RESPONSE TO REQUEST FOR HEARING FILED BY CITIZENS CONCERNED ABOUT NUCLEAR POWER AND CITIZENS FOR EQUITABLE UTILITIES Licensee Houston Lighting & Power Company (Licensee) files this response to the request for a hearing filed by Citizens Concerned About Nuclear Power (CCANP) and Citizens for Equitable Utilities (CEU) pursuant to an Order to Show Cause (Effective Immediately) published in the Federal Register on May 9, 1980 (45 Fed. Reg. 30753). */ For the reasons discussed below, Licensee opposes the request for a hearing.

I. BhCKGROUND On April 30, 1980, the Director of the Office of Inspection and Enforcement (Director) of the Nuclear Regulatory Commission (NRC) issued three documents in the

• / Letters were also received from Irene H. Anderson, Chair-person 21st Senatorial District Convention, Bexar County, Texas, dated May 19, 1980, and from Mona Keen with attachments dated May 15, 1980. To the extent that these letters are construed as requests for a hearing under the provisions of the Show Cause Order, Licensee's response filed herewith is intended to respond to these requests.

8 0 0 618 0 $O(0 G

, South Texas Proje'tc (STP) docket: (1) Notica of Violation, (2) Notice of Proposed Imposition of Civil Penalties, and (3) Order to Show Cause (Effective Immediately).

The Show Cause Order was based upon the NRC's Inspection Report No. 79-19 dated April 28, 1980, which covered inspections at STP by the NRC Staff during the period November 10, 1979 to February 7, 1980. The Order required that the Licensee show cause why it should not submit to the NRC certain requested information described in the Order within a period of 90 days from the date of the Order or stop safety-related construction activities. (Order, pp. 12-17). In addition, the Order stated that the Licensee or "any other person whose interest may be affected by this Order may request a hearing within twenty-five days of this Order."

(Order, p. 18). The Order further provided that if a hearing is held, the sole issue to be considered at such hearing shall be "whether the licensee shall be required to take the actions specified in Section V(A), above, within 90 days of this Order." (Order, p. 19).

On May 23, 1980, Licensee filed an answer to the Show Cause Order stating that it would comply with the Order and submit the requested information within 90 days of the date of the Order. Licensee further stated that it did not seek a hearing with respect to any of the matters contained in the Order. */

• / On the same date, Licensee also responded to the Notice of Violation and the Notice of Proposed Imposition of Civil Penalties. Licensee did not challenge the proposed civil penalties, which were paid at that time.

. In response to the provisions of the Show Cause Order, CCANP-CEU sent a telegram to the NRC on May 27, 1980, requesting a hearing on the Show Cause Order. This telegram was followed by a letter dated May 28, 1980, in which CCANP-CEU set forth  !

arguments in support of their request for a hearing. */ As discussed below, Licensee does not believe that any of the arguments warrant a hearing in this enforcement action.

II. CCANP-CEU ARE NOT ENTITLED TO A HEARING AS A MATTER OF RIGHT i A. The Request Fails to Establish a Right to a Hearing Under the Terms of the trder and Under Commission Precedent In their request for a hearing, CCANP-CEU state that

"[t]he'only appropriate action" for the Commission to take in this case "is revocation of the construction license."

They contend that a public hearing should be held to consider "whether the NRC Order is sufficient to address the investiga-tive findings and other evidence available regarding the construction of this plant to date." (Request, p. 9). It is clear that CCANP-CEU's request for a hearing, which seeks the revocation of the construction permits, does not fall within the scope of the sole litigable issue as set forth in the Show Cause Order and quoted above. For this reason alone, the request should be denied.

1

• / CCANP-CEU are intervenors in the operating license proceeding on the South Texas project.

The Commission has held that with respect to an enforce-ment order issued by the Director of Inspection and Enforce- .

ment, a person requesting a hearing under the provisions of such order is not entitled to a hearing as a matter of right when enforcement action more stringent than that set forth in the Director's order is sought. Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2) Memorandum and Order, 11 NRC (slip op. March 13, 1980). See also Wisconsin Electric Power Company (Point Beach, Unit 1, Request for Hearing) Order of the Commission, 11 NRC (slip op. May 12, 1980). Standing to request a hearing in an enforcement proceeding "does not extend to parties asserting injury from failure to grant more extensive relief" than that ordered by the Director. Marble Hill, supra at 7. Since CCANP-CEU request "more extensive relief" than that provided for in the Order, Marble Hill compels denial of their request for a hearing as a matter of right. */

2

• / CCANP-CEU attempt to distinguish the Marble Hill decision on grounds that the request there "was not based on ti.e direct relationship between a pending contention before a licensing board and the proceeding for which the hearing was requested." (Request, p. 6). This argument, rather than supporting the request for a hearing, cuts the other way.

Petitioners here are more favorably situated than those in Marble Hill, for, as discussed below, they have all the ,

procedural rights afforded by the Commission's regulations, i as intervenors in the operating license proceeding, to j litigate their QA/QC contentions, including the rights of discovery, presentation of evidence and cross-examination of witnesses.

B. CCANP-CEU Have Not Shown How They Would Be Prejudiced By Failure to Have a Hearing Broader in Scope Than That Prescribed by the Director CCANP-CEU argue that if the Commission does not order a hearing on the Show Cause' Order to consider relief more reaching than that ordered by the Director, they will somehow be prejudiced in litigating their QA/0C contentions now pending before the Atomic Safety and Licensing Board (ASLB) in the STP operating license proceeding. They state that:

Not having the public hearing will adversely affect the ability of the ASLB to evaluate this project and the ability of Intervenors to support their contentions before the ASLB.

To deny the request for a public hearing would be to deny existing evidence and potential evidence to the Intervenors and by so doing deny such evidence to the ASLB.

(Request, pp. 6-7).

This argument suggests a compelling need on the part of CCANP-CEU to stay on the " scent" of new evidence, potentially

useful in the licensing proceeding, and available in no 1

other forum. The facts are otherwise. Both CCANP and CEU are full parties to the licensing proceeding with all the rights afforded to such parties by the Commission's regula-i tions. CCANP-CEU have full discovery rights, now and for almost three more months, */ in the operating license proceeding,

• / The discovery period in the operating license proceeding has recently been extended to September 2, 1980, by the ASLD. Houston Lighting and Power Company, et al. (South Texas Nuclear Project, Units 1 and 2) ASLB Order, April 28, 1980.- The ASLB has suggested the desirability of holding an (footnote continued on page 6)

including the right to file interrogatories and take deposi-tions of both the Licensee and the NRC Staff. .

If CCANP-CEU are really concerned, as they argue in their request for a hearing, about the identity of QC inspectors interviewed by the NRC Staff, that other inspectors or potential witnesses will leave the project or will not be able to remember events occurring several years ago, they are free right now to pursue such evidence through the discovery process in the operating license proceeding. */

There is simply no basis to the argument that petitioners will be prejudiced in obtaining evidence for the operating license proceeding if the instant request is denied. **/

(footnote continued from page 5) i early hearing on the QA/QC contentions in the operating license proceeding and that such a hearing be held in the

" fall of 1980 or winter of 1980-81." ASLB Memorandum dated March 10, 1980, p. 3. The Licensee has supported this suggestion. Applicants' Response to ASLB Memorandum of March 10, 1980 (March 19, 1980). Interestingly, both CCANP and CEU heve expressed reservations about holding such a hearing in this time frame. CCANP's Response to Board Memorandum of March 10, 1980 (March 24, 1980); CEU's Answer to Board Memorandum of March 10, 1980 (April 14, 1980).

*/ Indeed, CCANP-CEU could even file a Freedom of Infor-mation Act' request with the Staff under 10 CFR S 9.3 et seg.

to seek information in the Staff's possession including the names of any QC inspectors interviewed by the Staff.

• • / Licensee wishes to point out that the Brown & Root viden tape referred to on page 6 of the Request has not been destroyed. .A copy of the video tape was viewed by representa-tives of CCANP and CEU on May 28, 1980, and a copy will be retained by counsel for Brown & Root and will be available in preparation for the operating license proceeding.

w . - - ,,

, III. NO BASIS HAS BEEN ESTABLISHED FOR THE GRANT OF A HEARING AS A MATTER OF THE COMMISSION'S DISCRETION The Commission, of course, has discretion to convene a .

public hearing in cases where one may not be required as a matter of law. Marble Hill, supra at 7-8. CCANP-CEU's request does not warrant the exercise of that discretion.

Viewed in true perspective, the Director's action in the Show cause Order reflects a reasonable and deliberate approach to addressing the QA/QC problems documented in the April 28, 1980 Inspection Report and establishing the accept-ability of key portions of the work completed to date at the STP site. Once the information is received and evaluated, the Show Cause Order contemplates that the Director will determine the necessity for further action. (Order,Section V, C, p. 17). Certainly, this careful procedure, which will provide a basis for further action by the Director, represents an orderly process. If the Commission were to grant the subject request for a hearing to consider a remedy different from, or more stringent than, that ordered by the Director, this would constitute in effect, a finding by the Commission that the Director had erred and proceeded in an unreasonable manner. CCANP-CEU have not provided any basis to suggest that the Director has so erred.

Moreover, Licens^e has agreed to provide all the information request i by the Staff. (Licensee's answer to Show Cause Order dated May 23, 1980). Licensee has acknowl-edged the itet. Of non-compliance reflected in the Inspection Report and has agreed to meet all of the requirements of the Show Cause Order, including the institution of verfication programs to assess soils, concrete and welding at STP.

There is no issue of fact upon which to join issue in a discretionary hearing at this time -- except the unsuppcrted, but implicit, suggestion of CCANP-CEU that the Director erred in charting the course set forth in the Order. */

CCANP-CEU, although seeking a proceeding to revoke the construction permits issued to the Licensee and others **/

fail, for obscure reasons, to follow (indeed, they reject) the path provided for this purpose in the Commission's regulations. Those regulations (10 CFR S 2.206) provide that a person may file such a request with the Director and shall " set forth the facts that constitute the basis for the request." CCANP-CEU have not filed to date a request under S 2.206 to revoke the STP construction permits, nor have they

• / If CCANP-CEU are not satisfied with any subsequent order of the Director issued after he has evaluated Licensee's submittal of information, they may utilize the procedure under 10 CFR S 2.206 to ree.uest suspension or revocation of the construction permits.

• • / Licensee, the City of San Antonio, Texas, acting by and through the City Public Service Board of San Antonio, Central Power.and Light Company and the City of Austin, Texas, hold construction permits for STP Units 1 and 2.

_9_

provided the Director with any facts to support such a request. If CCANP-CEU have any facts or other information ,

which they believe would warrant initiation of such a proceeding, they can at any time (and could have done so in the past) file an appropriate request with the Director under S 2.206.

If the instant request for a hearing is construed as a petition to institute a proceeding to revoke the license under S 2.206, no basis is provided therefor. The April 28, 1980 NRC Inspection Report is a detailed report of the findings of the Staff's investigation at STP. CCANP-CEU have not specified "what additional facts might be uncovered by a public hearing that have not been or will not be by pending investigations." See Marble Hill, supra at 9.

Nowhere have CCANP-CT met the requirement under S 2.206 of providing " specific facts" as to construction or other deficiencies at the site, as opposed to " general alle'gations."

See Marble Hill, supra at 8. In these circumstances, no basis exists for the exercise of the Commission's discretion to grant CCANP-CEU's request for a hearing on issues not contemplated by the Show Cause Order.

IV. CONCLUSION For the reasons discussed above, CCANP-CEU have failed l l

to demonstrate that they are entitled to a hearing on the l

I l

. . ., . . - . - - - - . -- 1

Show Cause Order either as a matter of right or in the exercise of the Commi,ssion's discretion. Accordingly, the Commission should deny the subject request.

Respectfully submitted, Y 00 :-

Jack R. Newman Robert H. Culp David B. Raskin 1025 Connecticut Avenue, NW Washington, DC 20036 Finis Cowan Thomas Hudson Melbert D. Schwarz 3000 One Shell Plaza Houston, Texas 77002 ATTORNEYS FOR LICENSEE HOUSTON LIGHTING & POWER COMPANY OF COUNSEL:

LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 1025 Connecticut Avenue, NW Washington, DC 20036 BAKER & BOTTS 3000 One Shell Plaza Houston, Texas 77002 l

l

, UNITED STATES OF AMERICA NUCLEAR RL'GULATORY COMMISSION In the Matter of )

) .

HOUSTON LIGHTING & POWER COMPANY ) Docket Nos. 50-498

) 50-499 (South Texas Project, Units )

1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of Licensee Houston Lighting & Power Company's Response to Request for Hearing Filed by Citizens Concerned About Nuclear Power and Citizens for Equitable Utilities in the above-captioned proceeding, were served on the following by deposit in the United States mail, postage prepaid, or by hand delivery, this /,2_th day of June, 1980:

John Ahearne, Chairman U.S. Nuclear Regulatory Commission Washington, DC 20555 Joseph Hendrie, Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555 Victor Gilinsky, Commissioner U.S. Nuclear Regulatogy Commission Washington, DC 20555 Richard T. Kennedy, Commissioner U.S Nuclear Regulatory Commission Washington, DC 20555 Peter A. Bradford, Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555 Victor Stello, Director Office of Inspection and Enforcement U.S. Nuclear Regulatory Commission Washington, DC 20555 .

Leonard Bickwit, Esq.

General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555

t James Lieberman, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission -

Washington, DC 20555 Charles Bechhoefer, Esq., Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. James C. Lamb, III 313 Woodhaven Road Chapel Hill, North Carolina 27514 Dr. Emmeth A. Luebke Atomic Safety and Licensing Board U.s. Nuclear Regulatory Commission Washington, DC 20555 Stephen Sohinki, Esq.

Hearing Attorney Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, DC 20555 Richard W. Lowere, Esq.

Assistant Attorney General for the State of Texas P. O. Box 12548, Capitol Station Austin, Texas 78711 Honorable Burt O'Connell County Judge, Matagorda County Matagorda County Court House Bay City, Texas 77414 Mrs. Peggy Buchorn Executive Director Citizens for Equitable Utilities Route 1, Box 432 Brazoria, Texas 77422 Steven A. Sinkin, Esq.

116 Villita San Antonio, Texas 78205 Mr. Lanny Alan Sinkin Citizens Concerned About Nuclear Power 838 E. Magnolia San Antonio, Texas 78212 Atomic Safety and Licensing Board Panel U.S. Nuclear Reguletory Commission Washington, DC 20555

9-Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Chase R. Stephens ,

Docketing and Service Section Office of the Secretary of the i

Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 i

W g. cA 1

I I

i l

l i

l l

l

, _ . . . . _ . . , _ _ _ . . , __ _ , _ . , _ _ _ _ , , , . _ _ _ ._. _ . . _ _ . . . , _ , , , . _ , _ . _ _ , _ _ _ , , . , _ . _ . , , . , . . _ -