ML19256E521

Motion for Reconsideration of ASLB 791001 Memorandum & Order Denying Dismissal or Summary Disposition of Contention 17 Re Fire Protection.Urges ASLB Obtain cross-examination Outline from Miami Valley Power Project.W/Certificate of Svc

ML19256E521
Person / Time
Site:	Zimmer
Issue date:	10/16/1979
From:	Conner T, Wetterhahn M CINCINNATI GAS & ELECTRIC CO., CONNER, MOORE & CORBER
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 7911070562
Download: ML19256E521 (7)

Text

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NUCLEAR REGULATORY COMMISSION l Y /# -

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(itn. E. Zimmer Nuclear Power )

Station) )

APPLICANT'S MOTION FOR RECONSIDERATION OR FOR ALTERNATIVE RELIIF Sy " Memorandum and Order Ruling en Various Motions and Rescheduling Evidentiary Hearing" dated October 1, 1979, the Atomic Safety and Licensing Board (" Licensing Board") denied rarious motions for dismissal er for su= mary disposition of Miami Vall.ey Pcwer Project's Contention 17 related to fire protection of the Ci=mer facility. As discussed below, The Cincinnati Gas & Electric Company, et al., (" Applicant") moveu the Board to reconsider its ruling and dismiss Contention 17 or, for alternative relief related to the consideratien of this contention a: the scheduled evidentiary hearing.

The grounds for Applicant's und Staff's motions are fully discussed in the various earlier pleadings. In reviewing the October crder, Applicant believes that the Board may not have fully appreciated the position of the parties.

Applicant submits that in an adjudicatory hearing such as the instant proceeding, where an intervencr - represented by counsel - entirely fails to meet its obligaticas as a party and fails even to respond Oc pleadings directed at the dismissal s

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u. .c of its admitted centention, the Scard should not substitute its judgment for that party, and become an advocate with regard to that contention. By its actions, Miami Valley Power Project ("MVPP") has entirely abandoned Contention 17 in this proceeding. Its failure to answer in this instance can only be taken for consent to dismissal.

With regard to su= mary disposition, 10 C.F.R. 52.749 states that:

"When a =ction for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the me-a =egations or cenials c:..nas answer; his answer .

by affidavi: cr as otherwise provided

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acts snowinc enere is a cenuine issue of fact. If no such answer is filed, the decision sought, if appropriate, shall be rendered [emn. hasis suc. clied] . " .

Therefore, MV??'s failure to respond is a sufficient ground ::

find that no genuine issue of fact exists as to the matters alleged and grant the motion.

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requires the contrary. In that pleading, the Staff taker. a e csi_'-.. - 4..-*nsd-.e.. a . wi-"-. 4 .s e.a_v-

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..w^*.- r ~~- Ads..daa Contention 17. *doweve r , none of the matters alleged in the Applicant's statement of material facts is controverted by the Staff. Again, since there is no opposition :: Applicant's motion, it is entitled :: summary dispcsition.

The Scard states in its monien that it noted in its

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was then nc entirely satisfied with Ac.olican 's orco.osals . .

concerning cable tray insulation material. The Scard relied upon this as a basis for denying the motion for summary disposition. The Board's reliance on this statement of the Staff is erroneous. Initially, if the Staff centinued to hold that position, it should have been raised in the Staff's re-sc.onse to Ac.o.licant's motion for su=marv. disposition with regard to Contention 17. Secondly, the position of the Scard that i: must await resc3utton c:. a.,1 issues by One star:.. is contrarv to the dichotomv. at the o.ceratine. license s: ace established by the Cc= mission. The Commission has recognized

na: at this stage, only contested issues need be censidered by a licensing board. Other matters are properly left for the Staff's review and disposition. Finally, the Scard's October 1, 1979 Memorandum and Order ignores the "NRC Staff response tc

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"In su= mary, the "immer Nuclear Power Station has installed alternate shut-down capabilities and, further, has s ". # .# .4 4 e. . . _# .4 .- a. c.o.ec.4an .. . #ea."- es so that no single fire can prevent the plant from safely shutting down. Fina11v, .

the Zi=mer Nuclear Station fire protec-tien program is adequate and meets ve .e - se- a .4 -,

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52.78 5 (b) (2) , i.e., that a " serious safety matter" exists.

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3 r DTD D } li a tI) 61 e A AX m There is no indication whatsoever that this matter would fall into such a category. To the contrary, the affidavits of the Applicant in its =ction for summary disposition, the sworn responses to interrogatories by the Staf f, and the silence of MVPP establish that there is no safety question. Thus, no evidentiary proceeding is required or should be held under the Cc= mission's Rules of Practice.

Assuming, arcuendo, that, en reconsideratica, the Scard does not change its rulings, the Applicant would ask for further relief to avcid ' prejudice. The 3 card's Oc:cher 1, 1979 ruling completely deprives the Applican: and Staff of any discovery agains: the MV??. The Applicant is faced with a submission of testi=cny and prepara:_cn for the hearing without having any idea whatsoever as to the specific issues, if any, MVPP will seek to raise, either by direct evidence or en cross-examination.

In the circumstances, we submit that the appropriate remedy, short of dismissal, would be an order by the Board that MVPP (cr other intervencrs) cannot file testimony ner cross-examine en this contention since there is no centested issue. In the circumstances, these sancticns are appropriate.

In the alternative, because of MVPP's actions regarding Centention 17 and the experience during the previous sessions of rambling and disjointed cross-examination, Applicant moves the Scard :c crder MV?? to file a detailed curline of cross-examination indicatine the cocics te be covered and all dccumentary and other sources to be utilized during such 3,n

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cross-examination. There is NRC precedent for such action.

In the circumstances, we believe this is the absolute minimum that should be required Of MV?P.

For the above sta 'l reasons, the requested relief should be granted.

Respectfully submitted, CONNER, MCORE & CORSER sM.

Croy . Conner, Jr.

Mark J. Wetterhahn Counsel for the Applicant

• / Public Serrice Electric & Gas Cenpany (Salem Nuclear Generating Station, Unit 2), Docket No. 50-272, Order Following Prehearing Conference at 4 (March 29, 1979).

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UNICED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .

In the Matter of )

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The Cincinnati Gas & Electric ) Docke No. 50-358 Company, e al. )

)

(William H. Zimmer Nuclear Power )

Station) )

C _r Re.__u rr y n- _r_ Or r

s_RsI _ v_r I hereby certify that copies of "Ae.licant's c Motion for Reconsideration or d:r Alternative Relief," dated October 16, 1979, in the captioned matter, was served upon the following by deposit in the United States mail this 16th day of October,

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Charles Sechhcefer, Esq. Michael C. Farrar, Esq.

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_. . S a _ _,, .; c... a __- .s_4..3 and Licensing Scard Appeal Scard U.S. Nuclear Regula:Ory U.S. Nuclear Regula:Ory C .- ....._, s s .4 o .. c

v. ......_4 s s _4.n n WashingOn, D.C. 20555 Washington, D.C. 20555 n,_ .. _r_. _. . -.xe. . .u.v e.- e_., .v.e,.~e_. w v- .w a _4. _. ..a. . , n _.- .. .._4 - .ca_# e .v. = .d Atomic Safety and Licensing Licensing Appeal Scard Panel Scard U.S. Nuclear Regula:Ory School Of Natural Resources Cc= mission Universi:V cf Michic.an . Washinc.On, D.C. 20555 Ann Arbor, Michigan 45109 C h _,_4 _. . ..a._. , A _...- ...a -. 2 a _: _ .; _. . _, ..c-Mr. Glenn O. Bright, Member Licensing Scard Panel Atcmic Safety and Licensing U.S. Nuclear Regula:Ory

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U.S. Nuclear Regula: cry Washington, D.C. 20555 Cc= mission Washing:On, D.C. 20555 Charles A. Barth, Esq.

Counsel for the NRC Staff Richard S. Salcman, Esq. Office of the Executive Legal Chairman, Atcmic Safety and Director Licensing Appeal Scard U.S. Nuclear Regula cry U.S. Nuclear Regulatory Cc= mission Ccmmission Washington, D.C. 20555 WashingOn, D.C. 20555 r__,,._..

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Dr. Lawrence R. Quarles General Counsel v"_'..c4.." a _4 v" a s s 4' .-._._' -. .ca_# e .v. _=..d_ _~ _ _- a_ .a. m _' . . 3 7_' a_ c __ _4.-

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

Docketing and Service Section A terney a: Law Office of the Secretary 3454 Cornell Place J.S. Nuclear Regulatory Cincinnati, Ohio 45220 Commission Washing:cn, 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 r

a MahJ. We :erhahn

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