ML20024D117

Answer Opposing Miami Valley Power Project 830712 Motion to Defer Ruling on Review of ALAB-727 Pending Ruling on Motions to Reopen.No Justification Given to Delay Review for Unrelated Matters

ML20024D117
Person / Time
Site:	Zimmer
Issue date:	07/27/1983
From:	Conner T CINCINNATI GAS & ELECTRIC CO., CONNER & WETTERHAHN
To:	NRC COMMISSION (OCM)
Shared Package
ML20024D118	List: ML20024D117 ML20024D126 ML20024D138
References
ALAB-727, NUDOCS 8308030178
Download: ML20024D117 (14)

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UNITED STATES OF AMERICA i (d NUCLEAR REGULATORY COMMISSION BJ. ,. #

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• Before the Commission NV c In the Matter of

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The Cincinnati Gas & Electric ) Docket No. 50-358 Company, et al. )

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(Wm. H . Zimmer Nuclear Power )

Station) )

APPLICANTS' ANSWER TO MIAMI VALLEY POWER PROJECT'S MOTION TO DEFER RULING ON WHETHER TO REVIEW ALAB-727 Preliminary Statement On July 12, 1983, Miami Valley Power Project ("MVPP"),

an intervenor- in the proceeding below, filed a motion requesting that the Nuclear Regulatory Commission ("NRC" or

" Commission") defer its ruling on the review of ALAB-7271I until a ruling had been made by the presiding Atomic Safety and Licensing Board (" Licensing Board") and Atomic Safety and Licensing Appeal Board (" Appeal Board") on motions by MVPP to reopen this proceeding.

1/ The Cincinnati Gas & Electric Company (Wm. H. Zimmer Nuclear Power Station, Unit 1) , ALAB-727, 17 NRC (May 2, 1983). By order dated June 13, 1983, the Commission extended the time for its review of ALAB-727 to July 13, 1983. On that date, the Commission did not issue any further order, thereby permitting the time for its review of ALAB-727 to expire.

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Applicants oppose the requested relief, which, as MVPP itself acknowledges, is nowhere authorized by the Com-mission's regulations. Initially, it is noted that MVPP's 1 motion is moot inasmuch as the Commission has permitted the time for its review of ALAB-727 to expire. MVPP has advanced no reason why ALAB-727 should be reviewed, let alone any cause for " deferring" this decision. MVPP engages in the unwarranted presumption that the Commission's adjudicatory boards will not correctly apply the law and that legal error, if any, would go uncorrected under normal appellate review procedures. MVPP has alleged nothing new in this petition which would warrant creating the new procedure it requests or otherwise interfering with the normal procedures by which the Commission's boards review requests to admit late contentions and reopen a closed proceeding. Even under the analysis MVPP itself suggests for determining whether the Commission should defer its ruling, the request has not been justified.

As a separate matter, MVPP has requested the Commission to take up its late contentions and conduct an adjudicatory hearing itself. Obviously, the individual Commissioners l

l could not possibly do so and perform their important i

statutory functions to manage the agency and oversee the administration of the Atomic Energy Act of 1954, 42 U.S.C.

S20.'.1 ej g. Moreover, the Commission has already stated l

I explicitly that consideration of this matter should be undertaken "in the normal fashion prescribed by agency I

rules" by way of a request for " reconsideration or further relief from the Licensing Board or appellate review from the Appeal Board as appropriate under Commission rules." !

Applicants are confident that the Commission will not prejudge these matters which have been raised below by accepting MVPP's exaggerated, self-serving statements regarding quality assurance practices at Zimmer. Rather, Applicants believe that the Commission will await the rulings by the Boards below on MVPP ' s motions and review them in an orderly fashion. Accordingly, MVPP's motion should be denied in all respects.

Argument I. MVPP's Request is Moot As noted above,3/

the Commission has already declined to review ALAB-727. Therefore, there is no longer any ruling to " defer," as requested by MVPP. The Commission and i its adjudicatory boards do not rule upon matters which have become moot.O Therefore, there is no occasion for the

j. 2_/ Zimmer, supra, CLI-83-4, 17 NRC (February 18, 1983) (slip op. at 2-3).

3_/ See note 1, supra.

-4/ See, e.g., Dairyland Power Cooperative, (Lacrosse Boiling Water Reactor), ALAB-638, 13 NRC 374 (1981);

Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), ALAB-533, 9 j NRC 285 (1979).

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Commission to determine whether it would have deferred its decision on whether to review ALAB-727.1/

II. MVPP has not Justified its Request for the Commission to Defer its Ruling Preliminarily, it is noted that the Commission's regulations do not authorize the relief sought by MVPP, nor 1 does MVPP cite any authority for its request. While the Commission no doubt 'c.a s inherent authority to fashion such

! relief if it deemea it appropriate, the fact that the Commission's regulaulons do not contemplate such relief indicates the motion's lack of merit. Even assuming that the Commission would entertain MVPP's request or some variation, MVPP has made no showing which would warrant holding the Commission's normal review procedures in abeyance.

The essence of MVPP's argument is that a decision not

, to review ALAB-727 could prejudice MVPP in its requests before the Licensing and Appeal Boards, i.e., that this l

proceeding be reopened to consider late filed contentions on 5_/ Applicants recognize that the. Commission has 60 days to reconsider its determination not to review a decision of the Appeal Board because the NRC retains jurisdiction to reconsider any otherwise final decision until the time for seeking judicial review of that decision has expired under the Hobbs Act, 28 U.S.C.

l 52347. Florida Power and Light Company (St. Lucie

! Nuclear Power Plant, Unit 2), CLI-80-41, 12 MRC 650 ,

(1980). However, the mere possibility that the Commission might change its mind in declining to review ALAB-727 is clearly too remote and speculative to breath life into MVPP's request.

quality assurance practices at Zimmer, either as intervention or Board issues. It is asserted that a Commission decision not to review ALAB-727 "might be interpreted to remove all jurisdiction from the Licensing Board and the Appeal Board, even to deal with previously-filed motions."6_/

There is no basis for assuming that either the presiding Licensing Board or Appeal Board will misapply the law on any jurisdictional point, or that any error, if made, will go uncorrected on appeal. The Commission has previously rejected the assertion that its adjudicatory boards might-feel bound to follow any tentative or apparent conclusions by the Commission at an early stage in the proceeding. See Nuclear Engineering Company, Inc.

(Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 4 (1980). As in that case, "even if the apparent conclusions . . . are as claimed . . ., we must assume that the Board members are also intellectually disciplined and capable of judging the issues fairly on the basis of the full record they will develop. "- / In sum, there is no justification for fearing that legal error will

-6/ MVPP Motion to Defer Ruling on Whether to Review

. ALAB-727 at 3.

l 7/ Sheffield, supra, 11 NRC at 4-5.

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be committed by the boards below or that, upon review, MVPP jurisdictional arguments will not receive a fair hearing.

Acknowledging that "there is no specifically articulated standard that addresses the factors" applicable to its request that the Commission defer its decision whether to review ALAB-727,E MVPP argues that the standards for issuance of a stay under 10 C.F.R S2.788 (e) should apply. Although Applicants regard this contrived analysis as evidence that the Commission's rules simply do not contemplate such a request, MVPP has not even met the standards it proposes.

First, MVPP has not made any, let alone a " strong showing,"El that it is likely to prevail on the merits. In*

ruling upon MVPP's motion initially, the Licensing Board unequivocally ruled that MVPP had not satisfied the Commission's requirements for reopening proceedings for late

< contentions.N! Also, MVPP's assertion of " genuine, 8_/ MVPP Motion to Defer Ruling on Whether to Review ALAB-727 at 3.

9/ 10 C.F.R. 52.788 (e) (1) .

-10/ Zimmer, supra, LBP-82-54, 16 NRC 210, 213-14 (1982).

MVPP notes that the Licensing Board admitted the contentions sua sponte, an action which was subsequently reversed by the Commission. Zimmer, supra, CLI-82-20, 16 NRC 109 (1982). The mere fact, however, that the Commission recognized the importance of quality assurance issues at Zimmer does nothing to establish a likelihcod that MVPP as a party proposing its contentions will itself prevail in its motion to reopen.

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unresolved factual disputes"S/ is irrelevant. MVPP apparently has confused the standards for granting summary disposition of issues under 10 C.F.R. 52.749, which are inapplicable here, with the separate sets of rules governing the acceptability of late contentions and reopening a closed record. The Commission has stated that both sets of standards "must be satisfied, where applicable."E! It has also emphasized in the context of setting the standards for late contentions that Section 189a of the Atomic Energy Act "does not provide an unqualified right to a hearing." E As to irreparable injury, MVPP simply restates its unsubstantiated concern that the Boards below might misapply the law. Applicants believe that this is not so. "It is far more likely that the affirmative relief sought by MVPP, if granted (though beyond the scope of the Commission's rules),

would detrimentally affect the Boards' proper interpretation of the law. For the Commission to revamp its procedures in this instance carries a far greater potential for mischief, which ultimately would redound to the prejudice of 11/ MVPP Motion to Defer Ruling on Whether to Review ALAB-727 at 5.

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12/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 364 (1981).

13/ Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC (June 30, 1983) (slip op. at 6).

Applicants through a delay in the ultimate conclusion of the proceeding.

Similarly, if the Commission ties its review of the Initial Decision to the resolution of quality assurance issues, an entirely unrelated aspect of the remaining proceeding, there is a possibility that conclusion of the proceeding on emergency planning will be delayed. b Thus, the third factor in considering a stay, potential harm to other parties, weighs in favor of Applicants.

MVPP's discussion of the fourth factor, wherein lies the public interest, misses the point. As MVPP has framed the issue, the question is not whether the public interest favors hearings where an intervenor has f' ailed to establish good cause for its untimely contentions (which the Commission has already answered in the negative in reversing the allowance of the sua sponte contentions), but rather whether the public iiderest favors reconsiderat: ion and deferral of the Commission's decision to review ALAB-727.

Clearly, the public interest favors the Commission's adherence to orderly procedures under its established rules and precedents, and not the adoption of some aberrant procedure as urged by MVPP. Accordingly, even as MVPP has 1

14/ In ALAB-727, the Appeal Board required that further proceedings be held with regard to evacuation plans for schools within the Zimmer plume Emergency Planning Zone. Zimmer, supra, ALAB-727 (slip op. at 22-23).

formulated the standards for the relief it has sought, the Commission should deny MVPP's motion.

III. The Separate Request that the Commission Reopen the Record to Admit MVPP's Contentions is Without Merit and Contrary to the Commission's Previous Orders While recognizing the appropriateness of permitting the Boards below to rule in the first instance on its motions, MVPP alternatively requests that the Commission reopen the record on its own.El The purported justification for this action is that it "would send a very clear message both to the adjudicatory boards and to the public that the Commission is serious about openly resolving the quality assurance and management problems at Zimmer in accordance with the public-hearing requirements of the Atomic Energy Act."E! Here again, MVPP expresses its belief that hearings should be used by the Commission as an internal management and public relations technique. The Commission has emphatically stated, however, that this interpretation of the Atomic Energy Act is erroneous. As stated by Commissioners Ahearne and Roberts in reversing the Licensing Board's sua sponte actions a year ago, "the primary role of l

l the Board is to adjudicate issues in dispute raised in the i

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l Review 15/ MVPP Motion to Defer Ruling on Whether to ALAB-727 at 9.

16/ Id. at 9-10.

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d hearing process," and this was never intended to be a continuing, open-ended forum for public participation." El More important, the Commission reviewed these same eight quality assurance contentions a year ago when it reversed the Licensing Board's adoption of those issues sua sponte. While agreeing with the Licensing Board that the issues contained in the contentions are serious, it noted that the Staff's investigation of alleged quality assurance irregularities at Zimmer resulted in "(a]n extensive review of the as-built plant' and the establishment of a

" comprehensive quality confirmation program" to be completed prior to the licensing of the facility EI Finding "that the Board has not set forth a sufficient justification supporting its order reopening the hearing record to consider the eight contentions as Board issues,"El it directed dismissal of the contentions from the proceeding.

When MVPP subsequently sought reconsideration of this decision, the Commission succinctly denied the request, stating:

Miami Valley Power Project's (MVPP's)

August 20, 1982 petition for reconsid-eration of the Commission's order of July 30, 1982 in this matter (CLI-82-20, NRC ), is denied insofar as the l

l l 17/ Zimmer, supra, CLI-82-20, 16 NRC at 114-15 (additional views of Commissioners Ahearne and Roberts).

l 18/ Id. at 110.

19/ Id.

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petition requests reconsideration of the Commission's determination not to permit the Licensing Board to reopen the hearing sua sponte to consider the eight contentions proposed by MVPP. No fact or argument presented by MVPP alters the Commission's view in this regard as it is expressed in its July 30, 1982 order.20/

Actions taken by the Commission subsequent to its decision not to permit sua sponte review reinforce its initial judgment that the Staff can and will properly oversee the resolution of all outstanding quality assurance issues at Zimmer. In issuing its Order to Show Cause and Order Immediately Suspending Construction to CG&E issued November 12, 1982, the Commission required an immediate halt to safety-rela'ted construction at Zimmer and required the licensee to show cause why the suspension should not continue pending review and implementation of various management improvements, completion of quality confirmation and verification programs and efforts to ensure that future construction conforms. to the Commission's requirements.

Applicants did not contest the Order and it is currently being implemented under the supervision of Region III as directed by the Commission.21/ The issuance and implementation of this Order provides strong, additional i

20/ Zimmer, suora, CLI-83-4 (slip op. at 1).

(November 12, M/ Zimmer, 1982).

supra, CLI-82-33, 16 NRC

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1 reasons why the Commission should adhere to its previous determination that further hearings on this subject are  ;

unnecessary and inappropriate.

This interpretation of the Commission's actions was followed by the Director, Office of Inspection and i

Enforcement, in response to a petition by MVPP pursuant to 10 C.F.R. 52.206, where the Director determined that MVPP's allegations, which are also presented hero, were being adequately treated under the Commission's Order to Show Cause.22/ In permitting the time for its review of this decision to expire on June 6, 1983, the Commission at least implicitly agreed with the Director's views.

thus, the Commission itself has determined that sua sponte review of quality assurance issues at Zimmer should not be undertaken. MVPP has demonstrated nothing which has occurred subsequent to the Commission's earlier orders which would otherwise justify a reversal of the Commission's rulings, which are now the law of the case.23/ Further, as a procedural matter, MVPP has made no factual showing before

-22/ Zimmer, supra, DD-83-02, 17 NRC (February 10, 1983).

-23/ While the doctrine of the law of the case is not an ironclad rule in NRC proceedings, it should be observed unless a tribunal "is convinced that its declared "

law is wrong and would work an injustice . . . . Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 NRC 253, 260 (1978).

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the Commission since incorporation of documents filed with the Licensing Board and Appeal Board is impermissible.E Accordingly, no basis has been demonstrated for the Commission to exercise its sua sponte authority as requested by MVPP.N!

Conclusion For the reasons discussed more fully above, MVPP has failed to show any justification for the Commission to reexamine its decision not to review ALAB-727 and 1o defer that decision until disposition of entirely unrelated 24/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Docket Nos. 50-352 and 50-353,

" Order" (July 20, 1983); Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 1), ALAB-719, 17 NRC (March 22, 1983) (slip op. at 17-19);

Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, 7 NRC 313, 315 (1978); Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit No. 1), ALAB-400, 5 NRC 1175, 1176-77 (1977).

25/ While MVPP's request for relief apparently relates only to sua sponte review, MVPP does state that it "has met all applicable standards for reopening the record and for admitting late contentions." MVPP Motion to Defer Ruling on Whether to Review ALAB-727 at 9. Insofar as MVPP may be requesting the Commission to determine this

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issue itself, its request is squarely contrary to che Commission's delineation of the procedures to be followed in its denial of MVPP's motion for i

reconsideration of the Commission's Order of July 30, 1982. In that Order, dated February 18, 1983, the Commission explicitly directed that, as regards MVPP's intervenor contentions as opposed to sua sponte issues, "MVPP may seek reconsideration or further relief from l

the Licensing Board or appellate review from the Appeal Board as appropriate under Commission rules." Zimmer, supra, CLI-83-4 (slip op, at 3).

- matters. Nor has MVPP shown any reason why the Commission should reverse its earlier actions, which carefully delineate the procedures and requirements for resolution of all quality assurance issues at Zimmer necessary for resumption and completion of safety-related work.

Accordingly, the Commission should deny MVPP's motion and review the matters pending below in an orderly fashion under normal appellate practices as they come before the Commission.

Respectfully submitted, CONNER & WETTERHAHN, P.C.

• k J off Tro B. Conner, Jr.

Mark J. Wetterhahn Robert M. Rader Counsel for the Applicants July 27, 1983

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