ML20024E394

Motion for Leave to File Reply Brief & for Clarification of Responsibility to Duplicate Previous Analysis & Evidentiary Submissions.Util Challenge Frivolous,Heavy on Chutzpah & Deficient on Common Sense.Certificate of Svc Encl

ML20024E394
Person / Time
Site:	Zimmer
Issue date:	08/05/1983
From:	Devine T MIAMI VALLEY POWER PROJECT
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8308100338
Download: ML20024E394 (5)

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UNITED STATES OF AMERICA & .:

NUCLEAR REGULATORY COMMISSION #%;o(N(j BEFORE THE ATOMIC SAFETY AND LICENSING APPEAf NOMD, In the Matter of ) ll0 003 r. g/

tvc THE CINCINNATI GAS AND ELECTRIC ), q, 4 COMPANY, ET AL. s f/

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(Wm. H. Zimmer Nuclear Power Station, Unit 1) )

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MIAMI VALLEY POWER PROJECTS MOTION FOR LEAVE TO FILE A REPLY BRIEF AND FOR CLARIFICATION OF ITS RESPONSIBILITY TO DUPLICATE PREVIOUS ANALYSIS AND EVIDENTIARY SUBMISSIONS Pursuant to 10 C.F.R. 2.730(C), the Miami Valley Power Project

("MVPP") moves for leave to file a reply brief by August 17, 1983 to the Applicants ' July 27, 1983 Answer to the Atomic Safety and Licensing Appeal Board (" Board") of MVPP's July 12, 1983 motion to this Board to reopen the record for admission of eight con-tentions on quality assurance and character and competence. (" July 12 motion"). MVPP further moves this Board to provide clarification l whether MVPP must provide independent briefs and evidentiary sub-missions to this Board that duplicate the subhss.sions already pending before the Atomic Safety and Licensing Board (" Licensing l Board"). If this Board determines that the addifional burden is necessary, MVPP requests the opportunity to thereby complete its filing.

I. GROUNDS FOR A REPLY BRIEF MVPP submits that a reply brief is necessary to provide a complete, accurate record of the issues and legal authority in the case. Applicants' answer grossly distorted both the nature of MVPP's July 12 motion to this Board, as well as what MVPP's interest is in this proceeding. S im il a rl y, Applicants have miscited the legal authority for their responses to the positions Applicants inaccurately credited to MVPP. MVPP seeks to have its legal ini-tiative judged without any confusion about its motion, its interest, and the grounds for legal arguments which are properly in dispute be fore thi s, Boa rd . -

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MVPP contends that the informal precedent already has been set to permit full briefing of the complex issues in this litigation. On July 7, in order to assure a full record, the Licensing Board permitted MVPP to file a reply brief to challenge Applicants' legal analysis, as well as to present additional evidence. In this instance, MVPP does not seek to present new evidence, but the Licensing Board's rationale for responding to Applicants ' legal analysis is even more compelling for this Board.

The July 12 motion is the first occasion on which MVPP has sought relief from this Board, while the Licensing Board adjudicated similar legal issues last year.

Finally, there would be no prejudice to the Applicants from permitting a reply brief. Delay would be nonexistent, since it is not in dispute that the Licensing Board should first consider its own jurisdiction to hear the MVPP contentions. MVPP can prepare the reply brief promptly during the Licensing Board's review of the re c o rd , and in any event can file the brief before any appeal would be due from the Licensing Board's decision.

II. CLARIFICATION OF RESPONSIBILITIES TO DUPLICATE LEGAL' ANALYSIS AND EVIDENTIARY SUBMISSIONS Applicants independently claimed that MVPP's motion should be denied because it did not provide duplicate sets of evidence and independently brief its grounds to reopen the record and file new l

contentions. Appl ic a nt s ' severe distortion of the case law on this l issue illustrates the necessity for a reply brief on all of their legal positions. If this Boa rd nevertheless agrees with Applicants '

conclusion, MVPP re quests leave to follow whatever instructions may be issued to complete and correct the record.

With respect to briefing the issues, all of the case law cited by the Appl icants is inapposite. Each of the decisions involved an attempt by intervenors to substitute previous pleadings before a Licensing Board, fo r except ions and/c r suppo rt ing briefs t hat l a ppealed the same Licens ing Boa rd 's ini t ia l d ec i s io n . Of course, l t ie re cp irement to take into account the Licensing Board's analys ir, is reasonable for such an appeal. As expla ined in one of the cases cited by the Applicants' Pac ific Gas and Electric Company (St an isl a gs Nuclear Project, Un it No.1 ), AL AB-400, 5 NRC 1175,1176-77 n. 4 (1977),

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More often than not, the mero incorporation by reference in an appellate brief of what was con-tained in a filing on the trial level will prove most unhelpful .

For rarely will the precise reasoning of the trial tribunal on the point in question turn out to have been anticipated to such a degree that what was told to that tribunal will serve as an adequate response to what is there-a f te r say by it . (emphasis in original)

That is not the case for MVPP's July 12 mot ion to this Board. The motion does not appeal or challenge any previous decision, finding of fact, or conclusion of law issued by the Licensing Board. MVPP merely was acting to protect its j u r isd ic t ion al rights by presenting its case to this Board before final agency action had transpired. If MVPP chooses to appeal any action by the Licensing Board, MVPP will brief its exceptions.

Applicants' agreement is even more frivolous that MVPP has failed to substant iate it s contentions by not fil ing dupl icat ive sets o f ev idence. Aga in. App.l icants ha ve prov ided no ca se law.

Rationally, the Appl icants' challenge is heavy on chutzpah and deficient on common sense. In essence the Applicants contend that MVPP's plead ing should be d isqualified, because the intervenors failed to provide duplicate copies in each forum of bas ically the

, same 3500 pages of evidence that Applicants themselves have willfully withheld from all NRC forums for years.

l In light of the lack of authority, the inadequate grounds for and unreasonable burdens represented by the Applicants po sition,

, MVPP submits that the argument is fr ivolous . If, ho we ver, this Board agrees that a separate copy of all evidence in the record is necessary, MVPP requests the opportunity to accept that burden

rather than have its motion disqualified. MVPP will promptly comply with any such instruction.

l Re spectfully submitted, THOMAS DEVINE Co u n sel for Intervenor i August 5, 1983 Miami Valley Power Project

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In the Matter of THE CINCINNATI GAS AND ELECTRIC

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COMPANY, ~ET AL. ) Docket No. 358 f 10*""M 4 (Wm. H. Zimmer Nuclear Power

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies' of " Miami Valley Power Project's Motion for Leave to File a Reply Brief and for Clarification of its Responsibility to Duplicate Previous Analysis and Evidentiary Sub-missions" dated August 5,1983, in the captioned matter have been served upon the following, by deposit in the United States mail, this 5th day of August, 1983:

Alan S. Rosenthal, Chairman Dr. Frank F. Hooper Atomic Safety and Licensing Chairman of Resource Appeal Board Ecology Program U.S. Nuclear Regulatory School of Natural Commission Resources Washington, D.C. 20555 University of Michigan Ann Arbor, MI 48104 Stephen F. Eilperin Atomic Safety and Dr. M. Stanley Livingston Licensing Appeal Board Administrative Judge U.S. Nuclear Regulatory 1005 Calle Largo l Commission Sante Fe, NM 87501 Washington, D.C. 20555 Chairman, Atomic Safety .

Howard A. Wilber and Licensing Appeal I Atomic Safety and Board Panel i Licensing Appeal Board U.S. Nuclear Regul'atory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 l

Washington, D.C. 20555 Chairman, Atomic Safety Judge John H. Frye, III and Licensing Board Chairman, Atomic Safety and Panel Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 -

Washington, D.C. 20555 '

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Qo e .

'}i Charles A. Barth, Esq. David K. Martin, Esq.

Counsel for the NRC Staff Assistant Attorney General Office of the Executive Acting Director Legal Director Division of U.S. Nuclear Regulatory Environmental Law Commission Office of Attorney General Washington, D.C. 20555 209 St. Clair Street Frankfort, Kentucky 40601 Deborah Faber Webb, Esq.

7967 Alexandria Pike George E. Pattison, Esq.

, Alexandria, Kentucky 41001 Prosecuting Attorney of Clermont County, Ohio Andrew B. Dennison, Esq. 462 Main Street Attorney at Law Batavia, Ohio 45103 200 Main Street Batavia, Ohio 45103 William J. Moran, Esq.

Vice President and Troy B. conner General Counsel conner and Wetterhahn . The Cincinnati Gas &

1747 Pennsylvania Ave, N.W. Electric Company Washington, D.C. 20006 P.O. Box 960 Cincinnati, Ohio 45201 John D. Woliver, Esq. Docketing and Service Clermont County Branch Office of the Community Council Secretary U.S. Nuclear Box 181 Regulatory Batavia, Ohio 45103 Commission Washington, D.C. 20555 Brian Cassidy, Esq.

Regional Counsel Stephen H. Lewis, Esq.

Federal Emergency U.S. Nuclear Regulatory

) Management Agency Commission Region I Region III John W. McCormick POCH 799 Roosevelt Road Boston, MA 02109 Glen Ellyn, Illinois 60137 1

owntr# 14 Thomas Devine .

cc: Rdbert F. Warnick '

Director, Enforcement and Investigation NRC Region III 799 Roosevelt Road Glen Ellyn, Illinois 60137

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