ML19242A443

Cincinati Gas & Electric Opposition to Intervenor Miami Valley Power Project 790420 Request to Inspect Facility on 790512 Re Control Rod,Control Rod Seals,Cable Trays & Related Matters.Certificate of Svc

ML19242A443
Person / Time
Site:	Zimmer
Issue date:	05/03/1979
From:	Conner T CONNER, MOORE & CORBER
To:
References
NUDOCS 7908020021
Download: ML19242A443 (10)

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NT IT J T lh G a f ROOM UNITED STATES OF AMERICA l-I NUCLE AR REGULATORY COMMISSION l L. - e.

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The Cincinnati Gas & Electric ) Docket No. 50-358 ,p,k/) k Company, et al. )

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(Wm. H. Zimmer Nuclear Power )

Station) )

APPLICANTS' RESPONSE TO "INTERVENOR MIAMI VALLEY POWER PROJECT'S REQUEST TO INSPECT" On April 20, 1979, Intervenor Miami Valley Power Project

(" Project") requested that its rep;esentatives be allowed to enter the Zimmer Nuclear Power Station site to " inspect, meas ure , test, and sample any ar.d every item known as a control rod, the seals on the control rods, and all' cable 1

trays."~/ It was requested that such inspection take place an May 12, 1979.

Applicants, The Cincinnati Gas & Electric Company, et al.,

object to this di :overy inasmuch as a similar request has already been denied by the Board and no reason to recor. sider the decision has been asserted, the request is unduly broad, such inspection is u"mecessary to t.he case, and sucn inspection is unduly costly to and burdensome upon the Applicants. Should the Board order that inspection be permitted, such discovery must be made subject to terms and conditions in crder to protect the rights of the Applicants. In any event, inspections

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l "Intervenor Miami Valley Power Project's Request to Inspect Propounded on Applicants," dated April 20, 1979.

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- and testing as apparently contemplated by Intervenors would interfere with construction and create delays. Furthermore, Applicants move for a protective order that the requested discovery not be had or in t'ae alternative that the Board impose certain terms and c]ndition!- to pre.ect the rights of the Applicants.

10 C.F.R. S 2. 741 (a) (2 ) provides that any party may serve any other party with a request to:

Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpova of in-spection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of 52.740.

This Board has already denied a request for an extensive site inspection by the Project. In its " Order Determining Schedule," dated April 6, 19,s, the Scard rejected the Project's argument that "two full daya" be allocated for an "in-depth" site inspection. A representative of the Project will, of course, accompany the Boerd on the site tour scheduled for the prehearing conference.

Moreover, as noted by the Board in its rejection of the previous request for inspection of the "immer site, the NRC's Office of Inspection and Enforcement is charged with inspection of the facility. Not"ing has been advanced to show that the NRC's inspection effort has been in any way inadequate. The Project has not asserted any reasons why the Board's ruling

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should be reconsidered, and, as the law of the case, it is determinative of the motion.

Furthermore, pursuant to another recent discovery request made by the Project of the Applicants relating to cable trays and control rods, extensive documentation relevant to the con-trol rods and m la trays, including specifications and quality assurance records, has been reqvcoced. Thus, actual viewing of these components is unnecessary.--/ Intervenor's request makes no showing that such information is not available from other sources and that on-site inspection, beyond that already provided by the Board's order, ': auld provide any sig-nificant new information.

The inspection by Intervenors wcild be unduly burdensome on the Applicants. Because of the nature of the items for which inspection is sought and because of the extent of the inspection and testing requested, which request encompasses See, e.c., toooer v. Colonial Coverlet Co., 29 F.Supp. 125 2/

(D.C. Tenn. 1939); E. Totonellv Sons, Inc. v. Fairfield, 122 F.Supp. 849 (D.C. Conn. 1954). 10 C.F.R. 52. 7 41 (a) ( 2 )

closely parallels ~ 21e 34 of the Federal Rules c f Civil Procedure. It i- well-established that the Commission's rules concernL. discovery parallel those contained in the Federal Rules of Civil Procedure and that cases involv-ing the Federal Rules may be looked to for guidance in interpreting the Commission 's rules. Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAd-196, 7 AEC 457, 460-63 (1974); Illinois Power Co. (Clinton Power Station, Unit Nos. 1 and 2), ALAE-340, 4 NRC 27, 33 (1976); Public Service Co. of Indiana (Marble Hill, Units 1 and 2),

ALAB-374, 5 NRC 427, 421 (1977) (additional views of Mr. Farrar, joined in by the entire Board); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-379, 5 NRC 565, 568 n. 13 (1977); Pacific Gas & Electric Co.

(~'anislaus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038, 1040 (1978).

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"anf and every iten known as a control rod, the seals on the control rods, and all cable trays" (emphasis supplied), a large manpower commitment and great expense would be incurred by the Applicants for both supervision of such inspection and handling of the items where necessary. In light of the availability of information necessary for the purposes of the hearing from other sources, placing this burden on the Applicant is un-justified.~3/ This request for discovery should be denied as unduly broad.

Obviously, many such components have already been installed in the facility and are not subject to visual inspection. Even if inspection is ordered in this case beyond that provided for by the site inspection arranged by the Board, Intervenor's re-quest for " testing" should be denied. It is not clear that the Intervenors have any understanding of the implied scope and complexity of their request. Indeed, read literally it could require disassembly of all cable trays and control rods.

Testing is appropriate only where it could be performed subject 4/

to safeguards adequate to protect the rights of the parties.-

3/ We again note in this regard, as did the Board, that the Commission's Office of Inspection and Enforcement does perform the type of "in-depth inspections" anticipated by the request, the results of which are a matter of public record.

W.i lliams v. Continental Oil Co., 215 F.2d 4, 6-7 (10th i/

Cir. 1954). See, e.g., City of Kinascort, Tennessee v.

SCM Corp., 352 F.Supp. 287 (E.D. T nn. 1972); Cox v.

E.I. duPont de Lemours and Company, 38 F.R.D. 396 (D . S .C. 1965).

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Such condi tions include posting of an indemnity bond-5/ and may require specificity as to the method, nature and extent of such examination and the nature and extent of tests to be performed, including whether tney would materially alter or destroy the 5

capabilities of the iters in question. ~/

The request should be denied because the Intervenors have failec to meet any of the foundations requirements . They have not stated what inspection and testing they seek although the request involves miles of cables and thousands of components.

They have not set forth any responsible approach for evaluating components, let alone doing so with the required specificity.

Even if they were shown to have any of the engineering skills necessary to perform such activities, they have not shown that their inspection and testing would not ruin the components.

Moreover, it would appear that the proposed testing, which i.

undefined, could very well violate quality assurance require-ments of the Commission's regulations and render a qualified 5/ Williams v. Continental Oil Co., 215 F.2d at 5; cf.

Arkansas State Highway Commission v. Stanley, 234 Ark.

428, 353 S.W.2d 173 (1962).

6/ E.c., Sparberc v. Firestone Tire & Rubber Co., 61 F.R.D.

80, 83 (N.D. Ohio 1973). Cf. United States v. National Steel Corp., 26 F.R.D. 6037 607 (D.C. Tex. 1960); Emoire Metal Insurance Co. v. Indooendent Fuel & Oil Co., 37 Miss.

2c 905, 236 NYS 2d 379 s1962); Klein v. Bendix -

Westinghouse Automotive Air BraEe Co., 221 N.E. 2d 722, 725 (Ohio 1966).

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component unfit. In any event, it is clear that if permitted to engage in such actions, that it woule at least interfere The with construction and delay the project to some extsia .

request should be denied.

for which a right of In light of the nature of the items inspection and testing has been requested, should the Board it order Applicants to permit the activities in question, should condition that order to provide the following:

1. Intervenor Miami Valley Power Project should reim-burse Applicant for any and all costs resulting from compliance with this discovery request, including direct, indirect, consequential and delay costs.

2. Intervenor Miami Valley Power Project should be re-quired to cpecify at least fifteen days in advance of such inspection the method, nature and extent of the

. .camination and any tests to be performed, including the potential for the alteration or destruction of the per-formance capabilities of the items in question as a result of such testing.

3. An indemnity bond with guaranteed security should be to cover posted by Intervennr Miami Valley Power Project the Applicants' costs set forth in Paragraph 1, including costs of any damage to the items .. question as a result of inspection and testing, including replacement parts and the cost of reassembly, testing and inspection of any new parts. Such bond should be set by the Board after dD^J ,

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specification of the type of inspection and tasting "on-templated and after an opportunity to estimate costs 7/

'nvolved has been submitted by the Applicants.

4. Any measuring, surveying, photographing, testing, or sampling should be done only by qualified experts in the field, approved by the Licensing Board af ter opportunity for objection by the parties-8/ and be subject to observa-tion and supervision by the Applicants.

Applicants further object to the date specified by Inter-venors in its request as giving inadequate notice. It does not ellow sufficient time for scheduling and coordination of Applicants' manpower rescurces to accommodate such an inspection should it be ordered by the Board, over the objections of the Applicants. In any eve.nt, May 12, 1979, a Saturday, is not acceptable to the Applicants.

For all of the above reasons, Applicants hereby object to the discovery request of Intervenor fiiami Valley Power Project, 7/ At the present time, one day's delay in the ccrstruction of the plant would cost the Company and ultimate - the con-sumers, at least approximately $364,000 per day. This amount would increase much more if the Applicants were re-quired to obtain all replacement power by purchase for other utilities. Obviously, the cost cf ruining any com-ponent would depend upon the replacement cost, if a replace-ment is a vailable, plus the costs of delays. In the cir-cumstances, it would appear that the minimum bond, which should be required, should be between $10 and S20 million.

8/ Cf. Pacific Gas and Electric Co. (Diablo Canyon Nuc. ear Power Ptant, Units 1 and 2), ALAB-410, 5 NRC 1398, 1406, affirmed, CLI-77-23, 6 NRC 455 (1977).

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMlSSION In the Matter of )

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The Cincinnati Gas & Electric ) Docket No. 50-358 Company, et al. )

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(William E. Zimmer Nuclear Power )

Station) )

CERTIFICATE OF SERVICE i hereby certify that copies of " Applicants' Response to 'Intervenor Miami Valley ' Power Project's Request to Inspect,'" dated May 3, 1973, in the captioned matter, were served upon the following by deposit in the United States mail this 3rd day of May, 1979:

Charles Bechhoefer, Esq. Michael C. Farrar, Esq.

Chairman, Atomic Safety Atomic Safety and Licensing and Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Frank F. Hooper, Member Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Appeal Board Panel Board U.S. Nuclear Regulatory School of Natural Resources Commission University of Michigan Washington, D.C. 20555 Ann Arbor, Michigan 48109 Chairman, Atomic Safety and Mr. Glenn O. Bright, Member Licensing Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Charles A. Barth, Esq.

Counsel for the NRC Staff Richard S. Salzman, Esq. Office of the Executive Legal Chairman, Atomic Safety and Director Licensing Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 William J. Moran, Esq.

Dr. Lavrence R. Quarles General Counsel Atomic Safety and Licensing Cincinnati Gas & Electric Appeal Board -

Company U.S. Nuclear Regulatory Post Office Box 960 Commission Cincinnati, Ohio 45201 Washington, D.C. 20555

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lk Mr. Chase R. Stephens Leah S. Kosik, Esq.

Docketing and Service Section Attorney at Law Office of the Secretary 3454 Cornell r'. ace U.S. Nuclear Regulatory Cincinnati, Ohio 45220 Commission Washington, D.C. 20555 John D. Woliver, Esq.

Clermont County Community William Peter Heile, Esq. Council Assistant City Solicitor Box 181 City of Cincinnati Batavia, Ohio 45103 Box 214 Cincinnati, Ohio 45202 t%1h L tL i froyB. Conner, Jh/

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