ML20198H446
| ML20198H446 | |
| Person / Time | |
|---|---|
| Site: | Waterford  |
| Issue date: | 01/30/1986 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | JOINT INTERVENORS - WATERFORD, LOUISIANA POWER & LIGHT CO., NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| CON-#186-888 ALAB-812, CLI-86-01, CLI-86-1, OL, NUDOCS 8601310033 | |
| Download: ML20198H446 (10) | |
Text
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,. ~k UNITED STATES OF AMERICA NUCLEAR REGULATORY C0tNISSION e o, COMMISSIONERS:
9 Doe::;.g kg Nunzio J. Palladino, Chairman EJ H Thomas M. Roberts -4 d4N30 IOO6by, James K. Asselstine D G4 e Frederick M. Bernthal
- - 'CII b Lando W. Zech, Jr.
) SERVED JAN s01986 In the Matter of LOUISIANA POWER & LIGHT COMPANY ) Docket No. 50-382 OL
)
(Waterford Steam Electric )
Station, Unit 3)~ )
)
P.EMORANDUMAND'0RDER CLI 1 On July 11, 1985, the Appeal Board issued ALAB-812, which denied the fifth and final motion to reopen filed in this proceeding "in all respects save one: insofar as the motion raises issues that may relate to matters under investigation by 01, we [the Appeal Board] are unable to rule and therefore leave that part of the motion for the Commission's resolution." 22 NRC 5, 13 (1985) (footnote omitted). As explained below, the Conunission has decided to deny the remaining portion of the motion to reopen.I I Joint Intervenors have requested the Commission to review ALAB-812. Neither of the issues raised by Joint Intervenors meets the standard set forth in 10 CFR 2.786(b)(4) for Commission review. Joint Intervenors' request is therefore denied.
9601310033 860130 PDR ADOCK 05000382 PDR
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2 1.
Joint Intervenors on November 8, 1984 moved the Appeal Board to reopen the record of this proceeding on three new contentions. The Appeal Board denied the motion to reopen on two of the proposed conten-tions. The third proposed contention sought reopening on the character ;
and competence of Louisiana Power & Light Company (LP&L). As sumarized by the Appeal Board, Joint Intervenors charged that LP&L's lack of ,
character and competence was demonstrated in essentially six ways. The Appeal Board concluded that five of the six charges did not, either individually or collectively, raise a significant safety issue. On the sixth charge -- that pending investigations by the NRC's Office of Investigations (01) into allegations of falsification of records and ;
harassment of uality assurance / quality control (QA/QC) personnel at the site demonstrate a lack of character and competence -- the Appeal Board :
found that the state of the record did not permit a judgment one way or the other. 22 NRC at 45.
The Appeal Board, "[b]e~cause of 3 e dearth of publicly available information concerning 01's investigations, ... solicited more details directly from 01." 22 NRC at 46. The Appeal Board stated it was unable to obtain " complete, usable information" from 01, and therefore that it "took the unusual step of reviewing some of the investigative documents
[them]selves, in the NRC Regional Office where they are located. Id.
at 46-47. The Appeal Board, noting that nothing it had seen gave it "cause for significant concern about the integrity of LP&L's management," also stated that it could not " rule out all possible arounds for Joint Intervenors' charaes." Id. at 47.
3 In view of 01's opposition to release of information to the parties, the Appeal Board found it had no expectation of getting adequate information from 01 which it could share with the parties within a reasonable period of time. Since it could not rely on information not available to the parties, the Appeal Board found that "neither a denial nor a grant of the motion to reopen would be sustainable or fair." Id. The Appeal Board, concluding that only the Commission could obtain full access to information developed by 01, left the matter for the Commission to resolve.
- v6 s
II.
The Appeal Board's actions in seeking information from 01 and then referring one ortion of the motion to reopen to the Commission present two issues for the Comission to resolve: (1) Does the remaining portion of Joint Intervenors' motion to reopen meet the Commission's standards for reopening; and (2) Did the Appeal Board have the authority to seek additional information from 01 before ruling on the motion to reopen? We will address each issue in turn.
The standards for reopening a closed record require consideration of three factors: (1) whether the motion to reopen is timely; (2) whether the information raises a significant safety (or environmental) concern; and (3) whether the information might have led the Licensing Board to reach a different result. See, e.g.,
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),
CLI-85-2, 21 NRC 282, 311 (1985). The burden of satisfying the reopening requirements is a heavy one. See, e.g., Kansas Gas and I
4 Electric Co. (Wolf Creek Generating Station, Unit No.1), ALAB-462, 7 NRC 320, 338 (1978); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619, 620-21 (1976). "[B]are allegations or simple submission of new contentions" are not enough to meet these standards. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5,13 NRC 361, 363 (1981).
At a minimum ... the new material in support of a motion to reopen must be set forth with a degree of particularity in excess of the basis and specificity requirements contained in 10 C.F.R. 2.714(b) for admissible contentions. Such supporting information must be more than mere allegations; It must be tantamount to evidence ... [and] possess the attributes set forth in 10 C.F.R. 2.743(c) defini'ng admissible
~
evidence for adjudicatory proceedings. Specifically, the new evidence supporting the motion must be " relevant, material, and reliable."
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 aff'd sub nom. San Luis Obispo and2),ALAB-7f5,19NRC1361,1366-67, Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir.1984), vacated in part and reh'g en banc granted on other grounds, 760 F.2d 1320 (1985)
(footnote omitted).
The only aspect of Joint Intervenors' motion to reopen left before the Commission is the assertion that the existence of 01 investigations into allegations of falsification of records and harassment of QA/QC personnel demonstrates a fundamental lack of character and competence in LP&L. The Consnission finds that Joint Intervenors' motion to reopen, which is based on the pendency of ongoing OI investigations, does not meet the heavy burden required to reopen a closad record.
01 conducts investigations of licensees and lio asees' contractors to determine whether there has been a violation of NRC requirements involving wrongdoing. The bare pendency of an investigation does not
4 5 indicate that there is a substantive problem, or even that there has been a violation. Nor does it indicate that an allegation raises a significant safety issue. The pendency of an 01 investigation indicates ,
only that there is an allegation that is being investigated. The material proffered by Joint Intervenors, i.e., that investigations are ,
underway, certainly is not " tantamount to evidence," and is not the type of " relevant, material, and reliable" new information required to reopen a record.2 See Pacific Gas and Electric Co., supra, 19 NRC at 1366-67.
2 Joint Intervenors in their motion to reopen refer to a transcript i of a meeting between staff and 0I personnel and officers of LP&L and to an article from the Wall Street Journal. The transcript of the meeting does not contain probative information regarding 01's investigations.
The claim based on the Wall Street Journal that OI is ready to refer "over four cases" to the Department of Justice indicates nothing about how those cases bear on the current management and operation of :
Waterford. The Appeal Board noted that it is also incorrect. See 22 NRC at 47 n.52. Moreover, hearsay based on a newspaper article does not constitute the kind of evidence that can support a reopening motion.
The Appeal Board also grouped one other Joint Intervenors' charge
-- that LP&L took retaliatory action against QA personnel who adhered strictly to QA procedures -- with the charges based on 01's -
investigations. 22 NRC at 45 n.49. The affidavit Joint Intervenors cite to support this charge primarily addresses alleged QA deficiencies.
The Appeal Board denied that portion of Joint Intervenors' motion ..]
reopen which dealt with alleged QA deficiencies. The remaining portion of the affidavit, dealing with the alleged termination, is not sufficient by itself to raise a significant safety concern which might have led the Licensing Board to reach a different conclusion.
The Commission also notes in this regard that the Appeal Board, even after reviewing information developed by 01, stated "[n]othing we have seen gives us cause for significant concern about the integrity of LP&L's management." 22 NRC at 47. If there was no cause for concern, even after reviewing 01 information, then a fortiori it follows that the standards for reopening were not met.
6 Since Joint Intervenors' motion to reopen by itself does not meet the Commission's standards for reopening,3 the Concission must address t
whether the Appeal Board had the authority to look at information developed by 01 before ruling on the motion.
i A movant in seeking to meet the heavy burden required to justify j reopening a closed record "is not entitled to engage in discovery in order to support [the] motion.... Rather, the issue in each case is whether the available information meets the standards for reopening...."
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1),
CLI-85-7, 21 NRC 1104,1106 (1985). It is not the duty.of the adjudicatory boards to search for evidence that might fill in gaps in the moving party's submissions. Accordingly, in this sense it is not ,
necessary, as the Appeal Board's decision may suggest, to " rule out all possible grounds for Joint Intervenors' charges." 22 NRC at 47.
Here, rather than a party seeking to engage in discovery, the Appeal Board itself in effect sought discovery. Given what we have said about the movant's burden to support a reopening motion, there are two possible sources of authority for the Appeal Board's actions: (1) the Commission's Policy Statement on Investigations, Inspections and ,
J 1
i 3
In addition, Joint Intervenors' motion to reopen raises previcusly uncontested issues, and therefore must also satisfy the Commission's standards for admittina late-filed contentions, which are contained in 10C.F.R.52.714(a)(1}. See generally, e.g., Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL1-82-39, lli NRC 1712, 1714-15 (1982). Since the Commission finds that the )
remaining portion of Joint Intervenors' motion does not meet the standards for reopening, it need not address whether the motion meets the standards for late-filed contentions. I i
I 1
7 Adjudicatory Proceedings, 49 Fed. Reo. 36032 (September 13,1984);and (2) the Board's authority sua sponte to pursue uncontested issues. We will discuss each in turn.
The Commission's Policy Statement on Investigations, Inspections, I.
and Adjudicatory Proceedings addresses the conflict between the duty to disclose investigation or inspection information to the boards and parties and the need to protect that information. The Commission in that Policy Statement provides in certain circumstances for ex parte in camera presentations by 01 or the NRC staff "[w] hen staff or 01 believes that it has a duty in a particular case to provide an adjudicatory board with information concerning an inspector or investigation, or when a board requests such information...." M.at36033. liowever, these provisions come into play only when staff or 01 have new information "which is considered material and relevant to any issue in controversy in the proceedino." M.at36032(emphasisadded). Previously i uncontested issues raised in a motion to reopen are not " issues in controversy in a proceeding" such that the Policy Statement would come into play unless and until both the motion to reopen is granted and the contention is admitted.4 i
j i
4 Accordingly, since the motion to reopen in this case involved a previously uncontested issue, the staff had no " duty" to inform the Appeal Board that 01 had information " material and relevant" to the motion to reopen, and the fact that the staff advised the Appeal Board that 01 had information "related to" the motion to reopen did not give the Appeal Board the authority under the Policy Statement to request 01 to produce that information.
8 Nor did the Appeal Board here have the authority sua sponte to seek to obtain information relevant to the motion to reopen. Boards have the authority to examine issues not placed in controversy by the parties only where specific facts are brought to their attention indicating that there is a serious safety, environmental, or common defense and security matter. See 10 C.F.R. 2.760a; Texas Utilities Generatino Co. (Comanche i Peak Steam Electric Station, Units 1 and 2), CLI-81-24,14 NRC 614, 615 j
(1981). The Appeal Board made no such finding here, and none could have been made because, as explained above, the mere pendency of OI investigations by themselves here -- the basic specific fact brought to
___ the Appeal Board's attention -- does not raise a serious safety matter.
Accordingly, the Board had no authority to pursue this matter as it did.5 ,
III.
In conclusion, that portion of Joint Intervenors' motion to reopen which the Appeal Board referred to the Consission fails on its face to
- 4 meet the standards for reopening a closed record. In addition, the B
5 At an operating license hearing, a board passes only on issues put in contest. The decision as to all other matters which need to be addressed prior to issuance of the license is the responsibility of the Commission and staff outside of the adjudicatory context.
The Commission will, of course, outside of this proceeding take whatever action is appropriate once 01 completes its investigations, and, if 01 develops information impacting on the public health and safety during its investigation, the Commission will take appropriate
- action at that time.
I i
4
l 9 Appeal Board here did not have the authority to seek additional i
information from 01 bearing on the motion to reopen. Accordingly, the remaining portion of the motion to reopen is denied.0 Chairman Palladino and Comissioner Asselstine disapproved this Order. The dissenting views of Chairman Palladino, with which Comissioner Asselstine agrees, are attached.
It is so ORDERED.
g/' " "%,,, For the Comission ,
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- s. pv a h. . _ . ; ,, y 0O%
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% ,, . . J' t~' SAMU N. CHILK
'4 ,. v- Secretary f the Comission
% 9:4: -
Dated at Washington D.C.
this dO day of _14dO4d-Y , 1986.
. (
6 The Comission, in view of its decision that the standards for reopening are not met, need not address whether the Appeal Board had jurisdiction over this remaining aspect of the motion to reopen.
i
DISSENTING VIEWS OF CHAIRMAN PALLADIN0 I WOULD HAVE PREFERRED THAT THE COMMISSION POSTPONE RULING ON THE MOTION TO REOPEN AND REQUEST CLARIFICATION FROM THE APPEAL BOARD IN ORDER TO DETERMINE EXACTLY WHAT TYPE OF INFORMATION THE BOARD WISHED TO OBTAIN FROM 01. UPON REPLY FROM THE BOARD, THE COMMISSION THEN COULD HAVE DETERMINED ,.
WHETHER OR NOT TO REMAND THE MOTION TO THE APPEAL BOARD, WITH APPROPRIATE INSTRUCTIONS, OR TAKE SOME OTHER ACTION.
IN ADDITION, I DO NOT AGREE WITH THE STATEMENT IN THE ORDER THAT THE NRC STAFF HAD NO DUTY TO INFORM THE APPEAL BOARD OF THE 01 INFORMATION. I BELIEVE THAT STATEMENT IS NOT CONSISTENT WITH THE BOARD NOTIFICATION POLICY AS IMPLEMENTED BY THE NRC STAFF.
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