ML20004C660
| ML20004C660 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 05/27/1981 |
| From: | Feldman J FELDMAN, J.H., JR., MIAMI VALLEY POWER PROJECT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8106040431 | |
| Download: ML20004C660 (7) | |
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- NITED STATES OF AMERICA 5,yetetg, S
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The Cincinnati Gas & Electric
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Docket No. 50-358 Company, et al.
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(William H.
Zimmer Nuclear Power
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Station)
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l INTERVENOR MIAMI VALLEY POWER PROJECT'S REPLY TO APPLICANT'S RESPONSE TO MOTION BY MIAMI VALLEY POWER PLANT FOR RESUMPTION OF EVIDENTIARY HEARING ON CONTENTION 13 AND MIAMI VALLEY POWER PROJECT'S RESPONSE TO APPLICANT'S MOTION FOR ADDITIONAL RELIEF In their combination response Memorandum and Motion, Applicants have asked for various forms of relief, to wit:
1)
That Miami Valley Power Project's (MVPP) Motion should-be denied.
1 2)
The pleadings should be stricken as scandalous.
3)
That the Board should impose sanctions against the attorney for MVPP.
At this time, MVPP will respond to each of these requests for relief.
I._ MVPP's Motion should not be denied.
Contrary to Applicant's assertion, MVPP has not accused Appli-cants of purjury.
Rather, in its Motion, MVPP suggests Applicants' witnesses may have committed purjury, based upn t.he recollection of MVPP's attorney as to the testimony of Applicants' witnesses.Yl 8106040 M3'/5 g
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4 At the time sucn Motion was filed, MVPP's attorney did not have knowledge of the existence of any. transcript of the proceedings to which he had access, and therefore, he had to rely upon nis racollection of the proceedings.
Portions of tne transcript which Applicants' have cited in their response indicate that purjury was indeed not committed.
MVPP certainly intended no harm to Applicants' witnesses when it filed it's Motion, but simply wanted to pursue a seeming contradiction in the record.
MVPP's attorney's recollection of the testimony was not unreasonable, given the fact that Judge Hooper had a similar recollection.
(See quotation on page four of Applicants' Memorandum.)
In any event, Applicants' testimony was misleading enough to cause Judge Hooper to think that replacement power could be supplied at little or no cost.
This fact alone should be sufficient to call for a reopening of the hearings to further explore this issue.
With regard to the test of Pacific Gas and Electric Company (Diablo Canyon, Nuclear Power Plant, Units I and II), ALAB-598, 11 N.R.C. 876, 879 (6/24/80),the three prongs have been met in this case.
1)
The Motion was filed soon after MVPP received information which suggested a contradiction in testimony.
2)
The issue of financial qualifications is significant, and can, as-the-Board itself has noted, affect safety issues.
3)
The third part of the test is impossible to answer since no decision has been reached.
However, the information gained at the hearing could be significant.
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The testimeny of Applicant's witnesses are certainly misleading, if nothing else.
For instance,. on page' 4225-4226 of the transcript, the witness from Columbus.and Southern Ohio Electric' Company essentially testified that he did not'think that in the event of an outage at Zimmer that his company would have Lo purchase replacement power.
The witness from Cincinnati Gas and Electric Company and Dayton Power and Light. Company also pooh-pochec the significance of replacement power.
See pages 36032, 4046, and 4226-4229.
The-Applicant's later revelation that in the event of an outage, replacement power would cost an estimated $5.3 million per month; is certainly out of line with their previous testimony, and is therefore misleading.
II.
Pleadings should not be stricken.
MVPP's Motion has not cast an excessively adverse light on the character of any of Applicants' witnesses.
MVPP did not accuse any witness of perjury.
MVPP's intent clarified by this reply to the Memorandum any hint of such reflection of the character of Applicants' witnesses should be cured.
III.
The Board should not impose sanctions on MVPP's counsel.
10 C.F.R. 2.713(c) provides the grounds for suspending an attorney from taking part in a proceeding.
That section reads as follows:
A presiding officer may, by order, suspend or bar any person from participction as an attorney in a proceeding if the presiding officer finds that such person:
(1)
Is not an attorney at law in good standing.
admitted to practice before any court of the United States, the District of Columbia, or the highest court of any State, territory, or_ possession of the United States; (2)
Has failed to conform to the standards of conduct required in the courts of the United States; (3)
Is lacxing in character or professional integrity; (4)
Engages in dilatory tactics or disorderly or contemptous conduct; or (5)
Displays toward the Commission or any.of its presiding officers conduct which if displayed toward any court of the United States, would be cause for censure, suspension or disbarment.
Any such order shall state the grounds on which it is based.
Before any person is suspended or barred from participation as an attorney in a proceeding, charges shall be preferred by the presiding officer against such person and he shall be afforded an opportunity to be heard thereon before ancther presiding officer.
None of these conditions have been met in this case:
1)
MVPP's counsel is an attorney at law of good standing admitted to practice before the Supreme Court of Ohio, United States District Court for the Southern District of Ohio, the United States District Court for the Eastern District of Kentucky, and the Court of Appeals for the Sixth Circuit.
2)
There is no evidence that MVPP's counsel failed to conform to-the standar;ds of conduct required in the Courts of the United States.
At the time Counsel filed the Memorandum, he honestly believed there was a conrradiction between the testimony at the hearing and the evidence provided by the Exhibit attached to the Motion.
At the time, MVPP's Counsel had no knowledge of the 4-4
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existence of any transcript to which no had access.
MVPP's Counsel, in fact, felt that his duty to see that this seeming contradiction be investigated.
3)
MVPP's Counsc1's actions have displayed no lack of protessional character or integrity.
MVPP's Counsel was merely following his duty to the Board, to point out what seemed to be, at the time, a flagrant contradiction in test'imony.
4)
There has been no allegation of dilatory tactics or disorderly or contemptous conduct.
5)
There has been no allegation of any display on the part of MVPP's attorney or tne comv.ission or any of its presiding officers of conduct which if displayed towards any Court of the United States would be cause for censure, suspension or disbarment.
For these reasons, no sanction should be imposed.
In any event, 10 C.F.R. 52. 713 (c) provides that before such sanction can be imposed, such charge must be preferred by the residing officer and the attorney must be afforded an opportunity to be heard thereon J
before another presiding officer.
Respectfully submitted, lt W/A 0 Jamp H. Feldmpn, Jr.
V Attorney for Miami Valley Power Prodect 21d East Ninth Street Fifth Floor, Barrister House Cincinnati, Ohio 45202 (513) 621-6151
. 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY CO!'JCSSION ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman Dr. Frank F. Hooper, Member Dr. M. Stanley Livingston In the Matter of CINCINNATI GAS AND ELECTRIC DOCKET NO.
50-358 COMPANY, et al.
APPLICATION FOR (William E. Iimmer Nuclear OPERATING LICENSE.
Power Station)
CERTIFICATE OF SERVICE I hereby certify that copies of Intervenor Miami Valley Power Project's Reply to Applicant's Response to Motion by Miami Valley Power Plant for Resumption of Evidentiary Hearing on Contention 13 and Miami Valley Power Project's Response to Applicant's Motion for Additional Relief in the above-captioned proceeding have been served on the following persons by po4 ting the same in the U.S. Mails,.
postage prepaid, this S
day of A44 1981.
1 s
Charles Bechhoefer, Esq., Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Frank F. Hooper Troy B.
Connor, Esq.
School of Natural Resources Connor, Moore & Corber University of Michigan 1747 Pennsulvania Avenue, N.W.
Ann Arbor, Michigan 48109 Washington, D.C.
20006 William J. Moran, Esq.
John D. Woliver, Esq.
General Counsel P.O.
Box 47 Cincinnati Gas & Electric Co.
550 Kilgore Street P.O. Box 960 Batavia, Ohio 45103 Cincinnati, Ohio 45201 W. Peter Heile, Esq.
Chairman Assistant City Solicitor Atcmic Safety and Licensing Appeal Room 214, City Hall Board Cincinnati, Ohio 45220 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
Chcrlos A. B3rth, Esq.
Chcirman
.. U.0, Suelocr R;gulatory Commission Atomic Safety-and Licensing 30ard Rocm MN33 9604 Panel 7735 Old Georgetown Road U.S. Nucicar Regulatory Commissa:n Bethesda, Maryland 20014 Washington, D.C.
20555 Chase Stephens Mary Reder-Docketing and Service Section Box 270 Office of the Secretary Route 2 U.S. Nuclear Regulatory Comp.ission California, Kentucky 41007 Washin gton, D.C.
20555 David K. Martin, Esq.
Richard S.
Sal: man, Esq.
Assistant Attorney General Chairman Division of Enviremental Law Atomic Safety & Licensing Appeal Attorney General for the Commonweal Board of. Kentucky U.S. Nuclear Regulatory Commission
_209 St'.
Clair Street Washington, D.C.
20555 Frankfort, Kentucky 40601 Lawrence Quarles Andrew B. Dennison Atomic Scfety & Licensing Appeal 200 Main Street Board Batavia, Ohio 45103 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Michael C. Farrar, Esq.
Atomic _ Safety & Licensing Appeal George Patt-ison Board Prosecuting Attorney U.S. Nuclear Regulatory Commission Clermont County Washington, D.C.
20555 154 Main Street Batavia, Ohio. 45103 Administrative Judge M.
Stanley Livingston 1005 Calle Largo Santa Fe, New Mexico 87501 f f, --
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Jamg1FH. Feldman, Jr.
Att6rney for MVPP 214 East Ninth Street FIfth Floor, Barrister House Cincinnati, Ohio 45202 (513) 621-6151 e
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