ML19260A210
| ML19260A210 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 10/23/1979 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | CINCINNATI GAS & ELECTRIC CO., NRC COMMISSION (OCM) |
| References | |
| NUDOCS 7911080176 | |
| Download: ML19260A210 (4) | |
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UNITED STATES OF AMERICA 4
NUCLEAR REGULATORY COMMISSION
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ATOMIC SAFETY AND LICENSING BOARD
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Charles Bechhoefer, Chairman
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Dr. Frank F. Hooper, Member Glenn O. Bright, Member In the Matter of
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CINCINNATI GAS & ELECT'lIC Docket No. 50-358 OL COMPANY, ET AL.
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(William H. Zimmer Nuclear Station)
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MEMORANDUM AND ORDER CONCERNING APPLICANTS' MOTION FOR RECONSIDERATION OR FOR ALTERNATIVE RELIEF (Octo'oer 23, 1979)
On October 16, 1979, the Applicants filed a motion asking us to reconsider our October 1, 1979, " Memorandum and Order Ruling on Various Motions and Rescheduling Evidentiary Hearing."
In that ruling, we rejected various motions for dismissal or for summary disposition of Contention 17 of the Miami Valley Power Project (MVPP) and we scheduled that contention for an eridentiary hearing on November 14-16, 1979.
The NRC Staff opposes tne motion. for reconsideration; MVPP has not responded.
We deny the Applicants' motion but grant a limited part of the alternate relief which they also request.
If this proceeding were merely.ne forum for resolving the conflicting claims of two private parties, the Applicants' motion 1295 233 7911080 [h p-
. for summary disposition would likely as not be granted.
But an NRC licensing proceeding has another dimension:
prior to closing out a safety issue such as is here involved, we must be assured not only that the parties' claims have been resolved but also that the public health and safety is satisfied.
We would be remiss to settle for any less, particularly in the aftermath of the Three Mile Island accident.
Furthermore, as we previously pointed out, the "special posture" of this proceeding lends support to the desirability of resolving safety issues after opportunity for public hearing and cross-examination.
The Applicants find fault in our failure to state explicitly that a "serio.c. safety matter" exists, to justify making the ade-quacy of the insulation material a Board-sponsored issue.
They claim that their affidavits, the Staff's answers to interrogatories, and the silence of MVPP " establish that there is no safety ques-tion."
We disagree.
The safety significance of an issue depends on the nature of the issue icself, not on the adequacy of measures proposed for resolving it.
Protection of electrical cables from fire has safety significance.
The adequacy of Kaowool, the material chosen by the Applicants ror this purpose, including the sufficiency of the tests used to qualify this material, con-stitutes a serious safety matter.
The apparent inadequacy of an early test used to justify the use of Kaowool (indicated by the Staff's rejection of such test), together with the litany 1295 234
of alleged construction deficiencies which have accompanied the Zimmer construction project, constitutes an extraordinary cir-cumstance within the meaning of 10 CFR 52.760a,1/ justifying our holding an evidentiary hearing on this question.
The Applicants alternatively seek other forms of relief "to avoid prejudice."
As a result of MVPP's failure to respond to discovery requests, they would have us deny MVPP the opportunity to present direct testimony or conduct cross-examination.
We agree that our October 1, 1979 ruling did not provide for discovery against MVPP.
If MVPP is to present a direct case, the Applicants and Staff are entitled to pretrial discovery.
We have already established October 30, 1979 as the date by which direct testimony on the fire protection issue must be filed.
If MVPP is to file any direct testimony, we direct it also to previde, by the same date, responses to the Applicants' and Staff's previously filed discovery requests (except to the extent the answers are encompassed by the direct testimony itself).
In particular, MVPP must identify and make available for inspection and copying any documents on which it intends to rely in its direct case.
To preclude cross-examination on a Board-sponsored issue would be contrary to the practice sanctioned by Northern States Powr.r Co. (Prairie Island Nuclear Generating Plant, U' its 1 and 2),
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10 CFR 52. >3(b)(2), cited by the Applicants in their motion, by its terms governs only issues sought to be raised by the Appeal Board.
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. ALAB-244, 8 AEC 857, 869 (1974), reconsideration denied, ALAB-252, 8 AEC 1175 (1975%.2/
Moreover, the purpose of cross-examination in such circumstances is to assist the Board to resolve the issue before it.
We welcome such assistance.
We will insist that the cross-examination be strictly limited to the !ssue before us --
the adequacy of Kaowool as an insulation material in the circum-stances in which it is to be used at Zimmer, including the sufficiency of the tests used to establish such adequacy.
In addition, MVPP is directed to identify (and make available) any document: it intends to use in its cross-examination, by Thursday, November 8, 1979 (assuming it is aware of the document by that date).
The parties should be advised by telephone of such information.
THE ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman Dated at Bethesda, Maryland, this 23rd day of October, 1979.
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In reviewing and affirming ALAB-252, the Ccomissien itself emphasized the right of all parties to cross-examine or. all issues in which they have an interest.
CLI-75-1, 1 NRC 1 in the fir 9 p,rotection (1975).
MVPP clearly has an interest 1295 c3o issue.
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