ML20054F986

Motion to Reopen Record to Take Evidence on Contention 59. Gravity of Issues Warrants Reopening

ML20054F986
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	06/15/1982
From:	Doherty J DOHERTY, J.F.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-CP, NUDOCS 8206180301
Download: ML20054F986 (6)

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v UNITED STATES OF AMERICA June:15l 1982 NUCLEAR REGULATORY COD 1ISSION BEFORE THE ATOMIC SAPETY & LICENSING BOARD c .'. ._a 17 m :16 In the Matter of: j jr HOUSTON LIGHTING & POWER CO. E. 1'[..- .

(Allens Creek Nuclear Generating Docket No. 50-466' CP E Etation, Unit 1) -

. i INTERVENOR DOHERTY'S MOTION TO REOPEN THE RECORD [

t John F. Doherty, of 4327 Alconbury Lane, Houston, Texas i 77021, intervenor oro-se in the above proceeding now moves the Board reocen the closed record for the puroose of taking evidence on the enclosed Contentiont59, which is filed separately in order to fully display that it is entitled to the right of reply as discussed in Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, Oct.1,1979, at page 8, asc opposed' to!.this Motion which is not granted an automatici right of response to replies absent leave from the

' Board, as set forth in the Menorandum and Order of the Board in this proceeding of June 2, 1982, at paSe 6, and in 10 CFR 2.730(c).

The Commission's Rules of Practice do permit a Board to reopen the record of a closed proceeding in 10 CFR 2 718(j),

under the " Power (s) of the Presiding Officer". In Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Plant),- -

ALAB-138, 6 AEC520,523, (1973), the Appeal Board set forth two 3 requirements for a. Motion to Reopen to carry. These were:

950 "(1) the timeliness of the motion, i.e. whether the issues sought to be presented could have ~been raised at an earlier stage, such as prior to the close of the hearing, and (2) the significance or Bravity of those issuesp 8206180301 820615 PDR ADOCK 05000466 G PDR

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Below, this Intervenor sets out, using ALAB-138, (suora. ) ~

guidance, reasons for why the Board should reopen the ACNGS M c;

E record. -

g (1) This Motion to Reocen is timely filed. j@

5 This Intervenor maintains that the instant Motion could not have been raised earlier than now, such as prior to the 3.2 g

closing of the April 1982 hearings, or the December i; 1981 SE

'1 provisional closing. (Tr. 21, 326). This is because of EG IiE the sequence of events surrounding the closely related TexPIRG yp m

Contention 31. That Contention, for which additional evidence

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was taken in the April 12-14, 1982 hearings, was called because ff of a renewed Motion by this Intervenor,1 filed . December *7,1981, @@

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which followed the guidance of the Board Order of November 10, j].

1981, which denied without prejudice this Intervenor's original gp Motion for Additonal Evidence on TexPIRG Contention 31. In that et Order of November 10, 1981, the Board ordered availability to hk

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this Intervenor of the Quadrez Report on the South Texas Nuclear 55 Project. T:

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That same Order, stated,(P. 2), "..{,M]r. Doherty must spec- #21

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ify those portions of the Quadrex report which indicate that 7"

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organizational changes (which were either not previously adverted EE

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to or were inadequately addressed in testimony in this case) ought jgJf to be made insofar as the All ens Creek f acility is concerned

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iously adverted to or were inadecuately addressed in testimony 555

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' in this case) ought to be made in the supertision of the ACNGS 5Ei 53_..

construction. " This portion of the Order precluded cention of j:{=E Intervenor perceived Applicant problems with 10 CFR 50 55(e) sa E51 renorting, since there was no dealing, . . Si]ith what was .'Gi?g renortable under (10 CFR)50 55(e)..." in the Quadrex report. (Tr. 21562) .MF S

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Contention 59(a) enclosed, deals exclusively with the question ) $

E of Applicant being technically incompetent because it did not g recognize that many of the findings of the Quadrex report were reportable under 10 CFR 50 55(e), the commission's self-policing rule for licensees on construction performance.

An attempt to file a similar contention was strack in the a Board's Memorandum and Order of June 2, 1982. The attenpted filing  ! i was dated May 24, 1982. This Intervenor, prior to May 24, 1982, .:

filed a contention less similar to 59(a), on April 22, 1982, with Applicant gh and Staff filing replies on May 7,1,982, and May 14, 1982, respec- h g

tively. The Board in its Memorandum and Order of June 2, 1982, e 5

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treated this Intervenor's April 22, 1982 filing as a Motion to j Heopen, which as stated above it found deficient. The Board's 3 action in striking this intervenor's filing of May 24,1982 (styled:

Intervenor Doherty's Reply to Applicant's Motion to Strike Doherty h ti-Contention 58) was the result of an Applicant motion of May 19, 1982, [g received by this Intervenor on May 24, 1982. Thus, this Intervenor, 5 h

in order to expedite matters replied to the Motion of the Apolicant 2 on May 19,1982,on the same day as received. This Intervenor believes '

l that if any party has the stamina to review the recent history of g l

this proceeding.as attempted here, it will show this Intervenor has 2 made a totally acceptable record in filing timely. It.should be pointed out the April 22, 1982 filing of Contention 58, was defective,,but -

being but eight day after the close of the April 1982 hearings in [n

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Houston, was surely not_an_ abuse of the timeliness requirements j E:

In addition, this Intervenor believes he has shown L significant here.

i e that Contention 59(a) could not have been filed sooner. _

Contention 59(b) is based on a memorandum received from the [r l Staff un Merch 24, 1982, in discovery. The item was denied admiss- p m

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• ility in the hearing in April, 1982 (Tr. 21,728), but, more "'

importantly since the issues of Applicant's character was not before the Board, cross examination was not proper on that subject. / Judge. Wolfe emphatically denied any cross examination on the memorandum. (Tr. 21,728) As with Conten-ee f

tion 59(a), a similar contention was struck - j:in the Board's Memorandum and Order of June 2, 1982, and it was originally filed in a slightly different form on April 22,1982, eight days after the last day of the April hearings. This Inter-

"enor maintains that as w.4 + a Contention 59(a), he has with ,

C;ntention 59(b) pursued diligently his rights and hence hhis omission is timely with regard to Contention 59(b), because *

- could not have been filed sooner eas required in Vermont Yankee (supra).

2) The sienificance or eravity of the issues in Contention 59 merits reocenine the ACNGS record. t Intervonor would have the Board reopen the record for consid-er?. tion of his Contention 59 which is enclosed. Contention 59 maintains that Applicant lacks technical competence in failing ,

to report construction problems as they occured, later found in

! the Quadrer report, and that the Applicant lacks character to be a Commission licensee. These assertions are significant because  ;

if the Applicant is found to lack the competence to recognize construction problems, it follows many defects can be built into i the subject nuclear plant. And if it is found Applicant lacks -

E Nor can this Intervenor be at fault for not insisting on 7=: asking questions that would be'i'aproper.

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Since the Board treated the Contention as a Motion this come- =

- . what awkward terminology is correct.

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?*Y character through a willingness to conceal the Quadrex . ,'

cited problems then it follows the plant may be construo-ted or operated unsafely. ,

Such findings and their implications could well lead to a different outcome of the licensing Board

. in its decision to issue a construction permit for the ACNGS.

Tho Commission hast made at'.leakt tone' decision vith ' regard to how important an issue must be to merit re-opening of a record. In Public Service ~Comoany of New Hampshire (Seabrook Station. Unit 1 & 2) CLI-80-33,12 NRC 295 (1980) it stated that as a matter of prudence subsequent publication of an e:oert's works and general increase in seismic knoledge meant a closed record should be opened. (At 297) And, in Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Unit 1 & 2) ALAB-598, 11 NRC 876 (1980), the Appeal Board ordered a record reocened to examine new evidence on seismic -

ability although the issue was covered prior to the hearing close.D And, in Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Plant), ALAB-138, 6 AEC 520, 526, it affirmed a Licensing Board decision to reopen based only on the issue of fuel densification. Additional guidance from the Apoeal Board would appear to indicate it is possible to submerge the first prong of the Vermont Yankee test (supra.),

for in a prior Seabrook decision, Public Service Cocoany of New Hamoshire, (Seabrook Station Unit 1 & 2), ALAB-486, 8 NRC

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9, 21 (1978), it stated that although the covant's burden be greater, that when the matter is of such gravity that the public interest demands its further exploration, a motion 2! At 879 and 881.

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to reopen may be granted although untimely without good - 2 h E

cause. cw S

This Intervenor urges therfore that the issue of g 5

not having the competence to recognize reportable issues g under 10 CFR 50.55(e) and the villingness to not notify Nm the HRC of the significance of findings in a contractor report when placed in a single contention are the ocual g E

in gravity to the issues in the above cited cases. The E reason for this fa that the NRC through its Insoection and m m

Enforcement Branch is relying on its Licensees to see that h M

both construction and operation of power plants under its s i

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jurisdiction is performed safely. Any lack of either willingness E

or competence to do these may permeate anywhere in the licen- g see'.s plant and present a'phbli6 danger. Evidence an Applicant i will jeoparadize the programs of the NRC for any reason de- 1:

mand further exploration in the public interest. If granted e a

a construction permit, the NRC will rely on Applicant to re- j port deficiencies promptly at the ACNGS. Where this Intervenor h has shown, in his Contention 59, there is reason to believe the Applicant has not met this trust under.a previously granted  !

E license at another site, the Board should reopen the record on E o

that issue.  !

Respectfully submitted,  !

John F. Doherty#

l jfd- Intervenor oro se j (Certificate of Service with "Intervenor Doherty's Contention 59) j 5

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