ML19340D387
| ML19340D387 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 12/24/1980 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | CINCINNATI GAS & ELECTRIC CO. |
| References | |
| ISSUANCES-OL, LPB-80-32, NUDOCS 8012300494 | |
| Download: ML19340D387 (10) | |
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NUCLEAR REGULATORY COMMISSION A
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ATOMIC SAFETY AND LICENSING BOARD
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Before Administrative Judges:
.i Charles Bechhoefer, Chairman
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A Dr. Frank F. Hooper
~~~ O gIE594 Glenn O. Bright 5
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.2 In the Matter of:
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CIliCINNATI GAS & ELECTRIC
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Docket No. 50-358 OL COMPANY, ET AL.
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l (4tiliam H. Zimmer Nuclear Station)
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December :.4, 1980 MEMORANDUM AND ORDER l
(Denying Applicants ' Motions Concerning Contention 13)
Contention 13 of the Miami Valley Power Project (MVPP),
i an intervenor in this operating license proceeding, challenges I
the financial capability of the Applicants (Cincinnati Gas l
& Electric Co. et al.) to construct and operate the Zimmer plant.
Three motions bearing upon this contention are now before us:
the Applicants' motion for dismissal of Conten-tion 13 for default; their earlier motion for summary disposi-tion of that contention and their motion to require the NRC Staff to provide justification of its inability to proceed on certain matters, including Contention 13.
For the reasons which follow, we deny all three motions.
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The motion for dismissal of Contention 13 for default has a long procedural history.
Its i==ediate foundation is the failure of MVPP to answer or otherwise t
respond to in:errogatories propounded by the Applicants on i
Nove=ber 21, 1979 (Applicants' Seventh Set of Interrogatories to MVPP).
Earlier, on two occasions, MVPP had responded to
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cuestions on its Contention 13 (MVPP's Answer to Applicants' s
l Second Se: of Interrogatories, dated February 22, 1979; 1
MVPP's Answers to Applicants' Third Se: of Interrogatories, i
filed April 11, 1979).
Moreover, at the behest of MVPP, we reopened discovery on Contention 13 to explore the basis of i
new cost estimates unveiled by the Applicants in the su=mer of 1979.
See our Memorandum and Order Ruling on Various
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j Motions and Rescheduling Evidentiary Hearing, dated
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October 1, 1979 (unpublished), at pp.
'.-5.
i The Applicants, Staff and MVPP each filed new discovery recuests concerning Conten: ion 13.
The Applicants l
and Staff each answered (or objected to) MVPP's interrogatories.
l MVPP failed to respond to the recuests outstanding against it.
The Applicants thereupon, on January 8, 1980, moved to I
dismiss Contention 13 for default.
By our Memorandum and i
order of January 31, 1980 (unpublished), we denied that
=ction but directed MVPP to respond by February 19, 1980 to all except one of the interrogatories.
MVPP failed to do i
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] so and, as a result, the Applicants on February 25, 1980 renewed their motion to dismiss Contention 13.
The Staff i
supported the motion.
Neither MVPP nor any other party i
responded.
In.aur Memorandum and Order Denying Motion to Admit Adctrional Con:entions, L3P-80-24, 12 NRC 231 (August 20, 1980), we denied the recuest of Dr. David Fankhauser, another 1
intarvenor in this proceeding, to adci a new contention cuestioning the Applicants' " financial capability".
The basis for Dr. Fankhauser's recuest had in part been new cos:
I infor=ation transmitted to us and the parties by the Applicants on May 6, 1980.
We declined to admi: Dr. Fankhauser's new contention in large part because of its overlap with MVPP's Contention 13 and Dr. Fankhauser's failure to demonstrate why ad=itting his contention would likely lead to the development of a more como.lete record on the financial c.ualifications A
questien.
Notwithstanding such denial, we ruled that we would be prepared to consider Dr. Fankhauser a co-sponsor of r
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Contention 13, and to permit him to file evidence-in-chief, if he were to demonstrate that he has testimony :o sponsor which could serve to create a more complete record.
Id. at 239.
We established a schedule for such demonstration, permitting Dr. Fankhauser'to file information no later than 15 days following service of the portion of the Staff's_ Safety i
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Evaluation Report (SER) dealing with financial qualifications.
We also noted that we would defer ruling on the Applicants' motion to dismiss Contention 13 for default until after we have received the Staff's financial c.ualifications SER.
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a: 239, fn. 10.
j By Memorandus dated September 17, 1980 (unpublished),
we inquired when the Staff would be able to co to hearing on the financial qualifications issue.
We also outlined three subj ects which we expected the Staff to consider, either in its SER on j
financial qualifications, or through testimony or some c:her document entered into the record of this proceeding.
By le::er dated Oc:cber 20, 1980, the Staff stated that its financial analysts were involved on a full time basis on the. financial i
aspects of the Three-Mile Island (TMI) accident and that, therefore, it could not proj ect a meaningful schedule.
By letter dated December 9, 1980, however, the Staff reported ~-
tha: the financial review of TMI had been deferred and, as a result, that it anticipates that its financial review in this proceeding will be conpleted during the last half of January, 1981.
It added that it was analycing new information which the Applicants had forwarded to it in Novec6er, 1980 (with copies to the Board and parties) and tha: it would be pre-i pared to go to hearing as soon af ter the issuance of its financial qualifications SER as the Board decides is proper.
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We are confronted here with a situation where the financial i=plications of the Zi==er application appear to have changed dra=atically since the financial qualifications of the Applicants were reviewed a: the construction per=it s: age.
A: tha: time, the project was esticated to cost approxi=a ely $288 million (Construction Per=i: FES, September, 1972, p. XI-21).
By 1977, the esti=ated capital cos: had risen to 5470 million (Operating License FES, NURIG-0265, 510.4).
As recently as July 30, 1979, the Applicants estimated the to:a1 cost of the facility to be S850 =illien.
In May, 1980, the esti= ate was raised to S1 billion.
And according to the caterial submitted by the Applicants in November, the cost is now esticated a:
S1,067,320,000.
Projected opera:ing cos:s have also risen:
in 1977, the esticated annual cost of fuel, operation and
=aintenance, and deco==issioning was S53,200,000 (Operating,
License FES, NUREG-0265, Table 10.1).
In its =os: recent j
submission, the Applicants proj ect operating costs (not including deco==issioning) of $1,299,576,000 for the first j
- ve years of operation ($259,915,200 annually), = ore than a
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five-fcid increase in three years.
nese sign,.c.. 1 cant increases nave not been reviewed A
i in an adjudicatory proceeding.
I:. we snoule. dismiss
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Contention 13 for default, they would not be so reviewed.
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=ctions, the App'.icants asser: tha: the cuestion of the financial cualifications of an applicant fer an operating license is no: a serious safety ca :er which would require t,
l independen: Licensing Board review should the contention be i
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e fac:cr which should be :aken into account.
Moreover, in our view, the potencial sare:y preb,ecs v..nten coulc. resul: : rom the r
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"?otential 1= pact of Licensee Defaul: en Cleanup of TMI-2",
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It is clear to us that MV??'s failure to respond Oc the Applicants' in:erroga: cries concerning Cen encien 13, and
- o our Order of January 31, 1980 directing a response to all 4
i out one of those interrogatories, cons: tures a der.a u,. : waren our granting the relief requested by the Appli-could warrant cants.
in:.s :.s so even thoug.n h,.h-r en two earl:..e occas:.ons
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nad responded to questions on Centention 1,.
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developments with respec: to that issue--which caused MVPP to seek, and us to grant, a reopening of discovery--are likely i
to co= prise the most significan elenents in the resolution of Contenzion 13.
None:heless, we do not believe :ha: Con:ention 13 should be dismissed for defaul:.
Recen: developments, such as the issuance of NUREG-06S9, emphasize the safety significance of the financial qualifications issue.
Those developmen:s, oge-ther with the interest in the financial qualifications issue asserted by core than one intervenor, lead us to the conclusion tha: this issue should be litigated in an adjudicatory hearing.
For that reason, there seems to be no useful purpose for us to await the issuance of the Staff's SEE to rule on the Applicants' co: ion.
Our ruling a: this ci.e will enable us to hold the hearing on Centention 13 earlier than would otherwise be the case.
A: the hearing, w. will exoect the Applicants and Staff
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- o prcduce knowledgeable officials te address the substantive matters outlined in our Memorandum of September 17, 1980.
The prospec: of future rate actions of agencies of the State or Ohio to respond to financial developments is relevant to those substantive matters and should comorise a portion of the parties' direct case on Contention 13.
Even though we are no: disnissing Contention 13, we are granting the Applicants the alternate relief which they seek.
If MVPP is to present a direct case with respect to s
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i Contention 13, and if it is to seek any further discovery i
on Contention 13 (to the extent permitted by our Memorandum i
j and Order dated October 1, 1979), i: must respond to the outstanding discovery recuests relevant to that contention by no later than January 16, 1980.1/
To avoid surprise, MV?P tms also, no later than 7 days prior to the co=mence-4 l
ment of the evidentiary hearing on Contention 13, identify,
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and make available for inspection and copying, any documents of which it is : hen aware and upon which it intends to rely l
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or which it intends to utilize during cross-examination.
l Gf MVPP identifies these docunents less than 14 days prior to the hearing, it should advise the Applicants and Staff of these documents by telephone.:/)
To preclude potential schedule conflicts on the part of one or more of the Board members, we would hope to hold the evidentiary hearing on Contention 13 during the last week in Februarf,1981.
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'/ We are affording MVPP this additional opportunity to presen:
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a direct case on Contention 13 in part because of the change in its lead counsel.
See notice of withdrawal of former i
counsel of record, dated September 25, 1980, and notice of appearance of new counsel of record, dated November 6, 1980.
'/ We recuest Dr. Fankhauser also to notify the Applicants and:
Staff by telephone (on the schedule established earlier) if he seeks to present a witness on Centention 13.
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The developing financial information which we have described has rendered obsolete the Applicants ' April 23, 1979 Motion for Su==ary Disposition of Contention 13.1/
Even assuming that at tha: time there was no genuine issue of material fact to be heard, some of :he facts upcn which the j
Applicants then relied are clearly no longer applicable to the financial qualifications issue now before us (e.g., state-ment of caterial facts, paragraphs 29 and 30).
Moreover, MV??
in its response to the cocion, filed May 18, 1979, sets forth s
4 certain =aterial facts which appear to be in dispute. /
i Given these circu= stances, we deny the Applicants' motion.
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Finally, the Staff has responded to the Applicants '
otion to require the URC Staff to provide justification of its i
inability to proceed on certain matters by setting forth
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proposed schedules for the various matters about which we i
inquired in our Memorandu: of Septe=ber 17, 1980.
As discusped 1
j previously, :ne Star: scarec :na: its ::nancial quali:1ca ions review will be co=pleted during the last half of January, 1981, and that it will be prepared to go to hearing shortly thereaf ter.
The Staff also provided a schedule for the completion of its review of unresolved generic issues.
This s~hedule does no:
1I In our Prehearing Conference Order of June 4, 1979 (unpublished), we noted that we were deferring ruling on this motion, pending receipt of additional infor=ation concerning Co==ission ac: ions emana:ing from the TMI accident.
bI We note, however, that MVPP's response is technically deficient in tha: the fac:s are not supported by affidavit.
.. appear to us to be unreasonable or to require that we take any action at this time to attemp: to shorten it.
For that reason, we dismiss the Applicants' motion as moot.
For the foregoing reasons, it is, this 24th day of December, 1980 l
ORDERED Tha: the Applicants' motion for dismissal of Contention 13 for default is denied; I
Tha: the hearing on Contention 13 is tentativelv scheduled for the last week of February,1981, with participation.by MVPP subject to the conditions outlined herein:
Tha: the Applicants' motion for su= mary disposition of Y
Contention 13 is denied; and I
Tha: the Applicants' motion to require the NRC Staff to
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I provide justification of 3:s inability to proceed on certain matters is dismissed as moot.
FOR THE ATOMIC SAFETY A!D LICENSING 30ARD
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Charles Bechhoefer,, Chairman ADMINISTRATIVE JUDGE i
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