ML20008G227
| ML20008G227 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 05/06/1981 |
| From: | Conner T, Wetterhahn M, Wetterhan M CINCINNATI GAS & ELECTRIC CO., CONNER, MOORE & CORBER |
| To: | |
| References | |
| NUDOCS 8107020492 | |
| Download: ML20008G227 (12) | |
Text
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In the Matter of
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The Cincinnati Gas & Electric
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Docket No. 50-358 Company, et al.
)
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(Wm. H.
Zinmer Nuclear Power
)
Station)
)
APPLICANTS' RESPONSE TO MOTION BY INTERVENOR MIAMI VALLEY POWER PROJECT FOR RESUMPTION OF EVIDENTIARY EIARING ON CONTENTION 13 AND MOTION FOR ADDITIONAL RELIEF On April 21, 1981, James H. Feldman, Jr.,
as counsel for intervencr, Miami Valley Power Project ("MV??") moved to recpen the evidentiary hearing on Centention 13 relating to the financial cualifications of the Applicants to operate I
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L==sr..uc ear rower sta:Lon.
.ne stated reasons
..weme..that...
(N]ew and material evidence un-available to intervenor at the time of the last evidentiary hearing has just been made available to inter-l Venor and for the further reason that l
such informatien may i:.dicate that witnesses for the applicants may have l
perjured themselves a*. the last evi-i dentiarv hearine concerning cententien 13.
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Motion bv Intervenor Miami Valley Pcwer Project for Rest =ption of Evidentiary Hearing en Ccntention 13 (April 21, 1981).
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MVPP also moved for a continuance regarding the filing of its proposed findings of fact and conclusions of law. -2/
Ac..clicants submit that this motien is completelv with-out basis and should be denied.
The allega icn was made in flagrant disregard of Mr. Feldman's obligations as an attorney.
Further, the pleading should be stricken
' ;andalous, and the' Atomic Safety and Licensing Board should impose sanctions against Mr. FeLdman.
The stated basis for the action was a claimed dis-crepancv between an allec.ed statement bv an othe: vise un-identified member or members of Applicants' witness panel for Centention 13: " Defendant's (sic] answered that there would be little or no costs (to provide replacement power in the event of a total shut-down of the Zimmer Plant] since the cwer from Zimmer was not necessary due to the applicants' e
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reserve capacity"~' and an April 2, 1981 letter frem E..A._
Ecrgmann, Vice President, CG&E, to Harold Centon, Director, NRR.
It is shockinc. that in advancine. a charc.e of cer4urv.,
counsel fer.WPP gives ne reccrd citation for the alleged statement bv. Applicants' witness er witnesses nor even identifies which membe r of the five-member panel is claimed
_2 /.
A=
.icants' Proposed Findings of Fact and Conclusions c
Law in the Form of an Initial Decision was filed on April 24, 1981.
Paragraphs 93 through 142 give general background as tc the issue of the financial qualificatiens of the Applicants.
__3./
Memerandum in Sun.c.ert of Motion bv. Intervencr Miami Valley pcwer Project for Resumption of Evidentiary Hearing en Centention 13 / April 21, 1981).
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3-to have made such statement.
In a hearing spanning three days covering over 700 transcript pages, it is outrageous,
where such a serious charge is made, that there is absolutely no effort made to document or specify the alleged perjury.
This alone would be sufficient to deny the motion.
A review of the transcript has failed to confirm that any of the Applicants' witnesses made the alleged statement.
4 To the contrary, testimony of the panel is entirely con-sistent with tne information contained in the April 2, 1981 letter.
Mr. Feldman's charges appear to result frc= his 4/
inability to cc=prehend the evidence of record.
During the course of the hearing, Mr. Bergmann stated that were the Zimmer unit hypothetically taken out cf service, power frc= the Applicants' other anits would replace the out-
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With regard to the invocation of a perjury charge as a substitute for the failings of counsel, the Supreme Court stated in Bronston v.
United States, 409 U.S.
- 352, 360-61 (1972):
The cases support petitioner's posi-tion that the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner-- so icng as the witness speaks the literal truth.
The burden is en the questioner to pin the witness down to the specific object of the questioner's inquiry.
United States
- v. Wall, 371 F.2d 398 (CA6 1967);
United States v.
Slutsky, 79 F.2d 504 (CA3 1935); Galanos v. United States, 49 F.2d 895 (CA6 1931);
United States v.
Cchert, 227 F.
Supp.
915 (SD Cal. 1964).
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4-put from Zimmer, as opposed to power purchased from other 5/
companies.--
However, it was never stated or suggested that such replacement power would not be more ecstly to Applicants'
.custcmers than that produced by the Zimmer Station.
In fact, in response to a question by Dr. Ecoper, the witness answered that there would be costs to the Applicants' customers associated with su.ch use of older generating facilities.
The follcwing colloquy between Dr. Hooper and Mr. Sergmann demonstrates this clearly:
JUDGE ECOPER:
I have one clarifying question of Mr. Scrgman[n].
Yesterday we were talking about situations with an accident where there could be a long down time, and I believe that you said that Cincinnati Gas and Electric could abscrb the lead at little er ne cos and withcut any outages because of the relatively small fraction of power you had in
'76 with this plant.
What cther resources would be used in that situation, Mr. Sergman(n]?
What other power rescurces would you be substituting?
MR. SCRGMAN (N] :
I don't think I said "at no cost."
I said we could supply it within our system, and as I indi-cated in conversation with Mr. Eeile, normally we build a generating systa=
with en the crder of 20 percent reserve over peak lead.
Se even at the peak period of a year, he'd have 20 percent reserve, and in the seven percent, you will subtract 20 percent, and thec-retically you still have 13 percent reserved, even at peak times.
Now, there are other perieds of the year where.vour lead would be less, but you schedule machines fer cutages.
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See, for example, Tr. 3683, 4046, 4223-24, 4294-95.
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If the accident would occur in these periods of time, you could conceivablv.
keeo ec.uit. ment running for a year or maybe 18 months to carry you through that period of time, because you do have the built-in reserves, monitoring facility system in the system.
JUDGE HOOPER:
I understand you have these reserve facters in the facility, but I'd like to know what they are.
MR. EORGMAN(N]:
It would be a combina-tion of older coal-fired units and some gas turbines.
We have a combination of 500 megawatts combusti[on] turbines we use'in the summer, we have two 40-year-cid coal-fired, converted boilers which we bring in for peak periods cf time.
Then we have some late 1940 coal-fired units which right new are intermediate-type units.
They are not used continuously, so that would be the type of ecuipment that would come on.
There would be scme incremental cost differences in the kilewar: neurs, but it would not ourace. towers.
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Thus the testimony is that older units en the system would be utilized and fuel charges would account for ine creased ccsts to be eventually made up by the cus:ccers.
Ac.ain, A=plicants' review of the transcript reveals no inconsistent statement made by its witnesses.
The April 2, 1981 letter shows that the acnthly replacement energy ccst is $5.3 million calculated using a replacemen: fuel mix of 95% coal and 5% oil.
Thus, there is ne inconsistency between the witness panel's. statement and the April 2, 1981 letter.
It cannot be even argued that replacemen power cost is a matter which first arcse at the lates: hearing session.
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Tr. 4293-95 (emphasis supplied).
I
The matter of replacement pcwer costs has previously 1:een discussed as early as August 9, 1979 in the context of Contention 6 relating to compliance with 10 C.F.R. Part 50, Appendix I.
In response to a 3 card question, the Applicants stated that if "immer were not operating, replacement power, generated frem the Applicants' own system, could result in increased costs of'S169,138 a day, which correlates remarkably well with the 55.3 million month figure given in the April 7/
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2, 1981 letter.
MVPP has also failed completely o satisfy the Ccmmis-sion's recuirements for reopening the record.
The test as recently set forth by the Appeal 3 card in Pacific Gas and Electric Ccmpany (Diablo Canycn Nuclear Power Plant, Units 1 and 2), ALA3-598, 11 NRC 876, 879 (June 24, 1980) is as follows:
(1) Is the motien timely?
(2) Does it address significant safety (or environmental) issues?
(3) Might a different result have been reached had the newly preferred material
.been considered initially?
See also Duke Pcwer Cc=pany (W4 ' ' ' am 3. McGuire Nuclear Station, Units 1 and 2), Decket Nes. 50-369 and 50-370,
" Memorandum and Order Ruling en Motions to Recpen Record,"
(April 10, 1979) (slip cp. at 11-14); Duke Pcwer Ccmpany (Perkins Nuclear Station, Units 1, 2 and 3), Decket Nos. STN
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Applicants' Response to the Atomic Safetv and Licensing 3 card's Owe Questions Relating to 10 C.F.R. Part 50, A=. c. endix I, followine Tr. 2937; S169,138 c.er dav x 30 days / month = $5.1 millien/menth.
- 50-488, 50-489 and 50-490, " Order Relative to Motions to Reopen the Record for Additional Hearings" (April 12, 1979) (slip op. at 4).
Petitioner here has failed to meet any of the three requirements for reopenine. the record.
As previousiv noted, analyses of cost factors have long been part of the record of this proceeding and could and should have been fully accressed ear _,ler.
As there is no inconsistency,etween c
statements made at the hearing and the April 2, 1981 letter, there is no new information which can serve as the basis for reopening.
Information regarding replacement power costs could have easily been obtained as part of the disecvery process.
Ncr does e7y such information bear upon a significant safety or environmental issue.
M7PP does not even rake a bare allegation that the fact that replacement pcwer could cost the Applicants' customers $5.3 million per month wguld.
even significantly affect the ability to finance the facility, let alone keep them from fulfilling the NRC's financial requirements.
The reckless accusation cf perjury, which is unsupper:ed 8/
hv any specific citation, is scandalcus and shculd be stricken.
Metropolitan Edison Co.
(Three Mile ~sland Nuclear Station, 8/
Scandalous matters are those casting an excessively acverse lignt on e.ne cnarac'a-
. an ncivicua, cr
. car tv.
Budget Dress Corporation v.
Interna:1cnal Ladies' Garment Workers' Union, A F L - C I_O_,
25 F.R.D.
506, 508 (S.D.N.Y. 1959).
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Unit No. 2), ALA3-474, 7 NRC 746, 748-49 (May 5, 1978);
Tennessee Valley Authority (Eartsville Nuclear Plant, Units LA, 2A, 13 and 23), ALAB-409, 5 NRC 1391, 1396-97 (1977).
Moreover, the unsupported allegation is cause for disciplining Mr. Feldman pursuant to 10 C.F.R.
- 52. 713 (c) by permanently suspending him frcm participation in this pro-4 ceeding.
The accusations made against Applicants' witnesses are paruicularlv ec.re3icus inasmuch as the me be s of the panel m
r are respected me.mbers of their community, four of them being officers of their respective companies and, as a practical matter, it is imecssible for them adecuatelv to defend themselves against such an insidious allegatien. --9/ Mere allegations cf possible.cerjurv cause injur.v, and once made public and picked up by th^ press, as happened here, there is no adequate remedy.
With consequence; se severe and.so _.
irreversible, as should be obvious to any one, particularly a member of the bar, allegaricas should not have been =ade except after close scrutiny and investigaticn which led to the conclusion that thev were of uncuestionable accuracy.
Nothing approaching that standard has been me here. --10/
--9/
In this regard, see Louisiana Pcwer & Light Com=any (Waterford Steam Electric Sca:1cn, Unit 3), ALA3-121, 6 AEC 319, 320 n.2 (1973).
--10/
See ASA Code cf Professional Respcasibility and Ethical Considerations, Cisciplinary Rule 7-102 which was adopted by the Ohio State Supreme Court in October 1970.
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v-rg-e-w, Under 10. C.F.R. 52. 708 (c), an attorney's signing of a pleading constitutes his personal representation that he believes the matters represented therein to be true.
In alleging that the applicants' witness may have committed perjury, Mr. Feldman thereby represented that a factual basis existed for such an allegation.
The accusation of perjury is an extremely serious matter, as perjury is a felony punishable under the cr am_ al laws of the United States pursuant to 18 U.S.C. 51621. --11/
As the Appeal Board 11/
18 U.S.C. 51621 states:
51621.
Perjury generally Whoever--
(1) having taken an oath before a compe:ent tribunal, officer, or person, in any case in which a law of the United States authorizes an cath to be administered, that he will testify, declare, de-pose, er certify truly, or that any written testimony, declara-tion, depositien, or certificate by him subscribed, is true, will-fully and centrary to such cath states er subscribes any material matter which he does not believe to be true; cr (2) in any declaration, certifi-cation, verification, or state-ment under penalty of c.eriurv. as permitted under section 1746 cf title 29, United States Code, willfully subscribes as true any material matter which he does not believe te be true; is guilty of perjury and shall, except as otherwise ex=.ressi.v erovided by law, be fined not more than 52,000 or in-prisoned not more than five years, or both.
This section is applicable whether
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the statement or subscription is made within or without the United States.
1
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stated in a different context, "[c]ounsel appearing before this Board (as well as other NRC adjudicatory tribunals) have a manifest and iron-clad obligation of candor."
Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-505, 8 NRC 527, 532 (November 2, 1978).
This Bo'ard, as in its discretion sees fit, should exercise its authority pursuant'to 10 C.F.R. 52.713(c) to reprimand, censure er suspend Mr. Feldma. from participation in this proceeding.
Finally, given the facts as developed here, there is absolutely no reascn for tolling the time for submission of prcposed findings of fact and conclusions of law of.WPP or other party.
For the above stated reasons,.WPP's recuest for relief should be denied.
Furtherscre, the pleading should be stricken and Mr. Feldman subject to the penalties of_10,
C.F.R.
S2. 713 (c).
Respectfully submitted, CCNNIR & MOOP2 1
W d
Troy _. conner, Jr.
.v u Mark J. Wetterhahn Counsel for Applicants May 6, 1981
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USNR0 MAY. 7.1981
- UNITED STATES OF AMERICA s-
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NUCLEAR REGULATORY COMMISSION g
n Ex.;h
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-v In the matter of
)
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)
The Cincinnati Gas & Electric
)
Docket No. 50-358 Company, et al.
)
)
'(Wm.
E.
Zi==er Nuclear Power
)
Station)
)
Cr Rm_rer.Ca,__e O.r S eN Ce c.
I hereby certify that copies of " Applicants' Respense to Motion by Intervenor Miami Valley Power Project for Resumption of Evidentiary Hearing on Cententien 13 and Motion for Additional Relief," dated May 6, 1981, in the capricned matter, have been served upcn the follcwing by deposit in the United States mail this 6th day of May, 1 Q 0.1.
Charles Bechhoefer, Esq.
Chairman, Atc=ic Safety and Chairman, Atcmic Safetv Licensinc. Ac.ceal Scard Panel and Licensing Scard U.S. Nuclear Rec.ulaterv.
U.S. Nuclear Regulatcry Cc==ission Cc==ission Washingten, D.C.
20555 Was hinc. ton,
D.C.
20555 Chairman, Atcmic Safety and Dr. Frank F. Hooper, Member Licensing Ecard Panel Atc=ic Safety and Licensing U.S.
Nuclear Regulatory Ecard Cc==ission Schcol of Natural Resources Washington, D.C.
20555'
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University cf Michigan Ann-Arbor, Michigan 48109 Charles A.
Earth, Esq.
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Dr. M.
Stanley Livingston Office Of the Executive Legal Atc=ic Safety and Licensing Director Scard U.S.
Nuclear Regulatcry 1005 Calle Largo Cc==ission Santa Fe, New Mexico 87501 Washington, D.C.
20555 Richard S.
Salcman, Esq.
Wd=7 J. Meran, Esq.
Chairman, Atc=ic Safety and General Ccunsel Licensing Appeal Scard Cincinnati Gas & Electric U.S.
Nuclear Regula cry Cc=pany Cc==ission Pest Office 3.:x 960 Washington, D.C.
20555 Cincinnati, Onic 45201 Dr. Lawrence R. Quarles Mr. Chase R.
Stephens Atemic Safety and Licensing Docketing and Service Branch Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Cc==ission Cc= mission Was!.i".gton, D.C.
20555
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Washington, D.C.
20555
Willian Peter'Heile, Esq.
John D.
Noliver, Esc.
Assistant City Solicitor Cle=cnt Countv Cer:dunitv
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City of Cincinnati Council Box 214 Sox 181 s
Cincinnati, Ohio 45202 Satavia, Ohio 45103 Mrs. Mary Reder David K.
Martin, Esc.
,, 0 Assistant Attorney General sox 4/
Route 2 Actin Director California, Kentucky 41007 Division of Environmental Law Office of Attorney General Andrew 3.
Dennison, Esq.
209 St. Clair Street Attorney at Law Frankfort, Kentucky 40601 200 Main Street Satavia, Ohio 45iO3 Georce E.
Pattison, Esq.
3 Prosecutinc Attornev of James R.
Feldman, Jr., Esq.
Cle=cnt ~ County, Ohio 216 East Ninth Street 462 Main Street Cincinnati, Ohio 45202 Batavia, Chic 45103 i
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Mark g wetterhahn O
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