ML20040C007
| ML20040C007 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 01/22/1982 |
| From: | Frye J Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-OL, NUDOCS 8201270161 | |
| Download: ML20040C007 (7) | |
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6 EC'. X E TFi 1
I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
'(hf-j j';f BRANCH John H Frye, III, Chairman M. Stanley Livingston Frank F. Hooper g 3 3ggg In the Matter of Docket No. 50-358-OL CINCINNATI GAS & ELECTRIC C0FjPANY, et al.
(Zimmer Nuclear Power Station, Unit 1)
Janua r b
RECEIVEO MEMORAND'JM AND ORLER (Memorializing Conference Calls 6
DAN 2 6 iggy $
of January 15 and January 19, 1982)
-8 Y
On January 15 and January 19, 1982, telephone conference ca n
held to discuss the conduct of the evidentiary hearings which are to recon-vene inthis proceeding on January 25, 1982 in Cincinnati, Ohio, pursuant to the Board's January 7,1982 Notice of Hearing and January 15, 1982 Amended Notice of Hearing.
The purpose of this Memorandum and Order is to memorialize those conf erence calls.
Farticipating in the January 15, 1982 conference call were:
Jonn H Frye, III, Chairman, Atomic Safety and Licensing Board; Mark J. Wetterhahn, for Applicant Cincinnati Gas & Electric Company; Stuart A. Treby and Myron Karman for the NRC Staff; Andrew B. Dennison, for Intervenor Zimmer Area Citizens-Zimmer Area Citizens Kentucky (ZAC-ZACK); Deborah Faber Webb, for 7
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8201270161 820122
{DRADOCK 05000358-
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G the City of Mentor, Kentucky; Lawrence R. Fisse, Assistant Prosecuting Attorney for Clermon't County, Ohio, and David K. Martin, an Assistant Attorney General for the State of Kentucky.
At that time, counsel.for Applicant stated that Cincinnati Gis &
Electric Company would file its direct testimony on this matter on that i
date, pursuant to this Board's December 3,1981 Prehearing Conference Order. ~.;_..
'3 vy j
cStaff counseliindicated, however, that because of the inclement weath_erNhicM had closed government offices early on the 13th and all day
'on ' he l'4th, Staff would not be able to comply with its January 15th t
deadline.
Staff requested the extension of its filing deadline until Tuesday, January 19, 1982, and, as no party objected under the circum-stances, the Board granted this extension.
In a Memorandum and Order dated December 23, 1981, this Board ruled that the State of Kentucky and Clermont County, Ohio, both of whom are participating pursuant to 10 CFR s 2.71S(c), shall have the responsibility for providing those witnesses necessary for the introduction of their respective emergency response plans into evidence at hearing; the Applicart shall be responsible for sponsoring all other applicable emergency plans.
Applicant requested that tha Board, rather than the Applicant, issue sub-
.poenas to those witnesses who wished them.
No party to the January 15th
e conference call objected to this procedure; however, counsel for Clermont County did question whether this procedure would be contrary to 10 CFR
@ 50.33(g), which generally provides that the applicant for an operating license for a nuclear power' plant shall submit the relevant radiological etergency response plans to the NRC.
The Board notes that 50.33 is captioned " Contents of applications; general information"; it does not purport to address questions of the introduction of evidence at hearing, but merely recites what supporting information and documentation must be provided to the Commission in con-nection with a.. license application.
Thus, this Board finds that 50.33(g) is not relevant to the present evidentiara.aatter.
The Board's directions in this regard are clearly within the broad powers to regulate the conduct" of a proceeding given to them pursuant to 10 CFR 2.718.
Nonetheless, no party having objected, the Board has at Applicant's request signed sub-poenas directed to Ohio and Kentucky state officials and the officials of the involved Kentucky counties.
It was concluded in the January 15th conference call that the emer-gency response plans for the State of Ohio and Clermor.t County will be introduced on January 26, 1982, and that the applicable Kentucky emergency response plans will be introduced on February 2, 1982.
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The Board Chairman indicated in the conference call that it is not expected that the witnesses introducing the various emergency response plans will be required to prepcre written direct testimony but that the 1
witnesses should be prepared to establish a foundation for the introduction of the plans, including t'ne manner in which they were developed and adopted by the relevant state or county, as well as those steps which have been taken to cnsure that these plans are capabile of implementation.
It was agreed that the hearings shall generally proceed as follows:
From 1-5 p.m. on January 25, 1982, the Board will entertain oral limited appearance statements from members of the public.
Testimony will be heard on Janu:ry 26 from the Ohio panel.
The b,alance of that week will be devoted to testimony about those aspects of Intervenors' contentions which relate to mattr.rs in Ohio.
The first matter to be discussed in this regard is Contention 20 X.
Common issues, relating to both Ohio and Kentucky, are to be addressed with those contentione relating to Ohio alone.
b The second week of evidentiary hearings will commence on Tuesday, February 2,1982, with the introduction into evidence of the Kentucky emergency response plans.
Subsequently, the hearings will consider any remaining matters relevant to the Ohio contentions, folloried by te'timony s
addressed to those contentions which relate solely to Kentucky.
A
The Intervenors' testimony will be followed, respectively, by the testimony of separate panels of witnesses on behalf of Applicant and Staff.
Staff counsel stated that although its witnesses' direct testimony will address contentions as to Ohio and Kentucky jointly, separate cross-examination as to those matters affecting each state will be available.
Cross-examination on behalf of Intervenors is to be conducted solely by the party having " lead intervenor" status as to the particular conten-tion which a witness is addressing.
In accordance with the Board's Pre-hearing Conference Order, dated December 3,1981, and this Board's Decem-ber 23, 1981 Memorandum and Order (Memorializing Conference Call of Decem-ber 22, 1981), other intervenors are to inform the counsel for either Mentor or ZAC-ZACK, as appropriate, of any matters which they wish to see' addressed at hearing, whether this be on direct or cross-examination of a witness.
The Board is aware that, as was noted by counsel for Dr. Fankhauser, this represents a change from prior practice in this proceding; previously, each intervenor was allowed to cross-examine other intervenors's witnesses to and each cross-examine the witnesses of Applicant and Staff.
The basis for the Board's decision to utilize this somewhat different procedure in these proceedings is the Commission's " Statement of Policy on r
e a
u Conduct of Licensing Proceedings", 46 Fed. Reg. 28533 (May 27, 1981), which states, in pertinent part:
- 8. Consolidated Intervenors In accordance with 10 CFR 2.715a, intervenors should be consolidated and a lead intervenor designated who has "sub-stantially the same interest that may be affected by the proceedings and who raise [s] substantially the same ques-tions...."
Obviously, no consolidation should be ordered that would prejudice the rights of any intervenor.
4 However, consonant with that condition, single, lead intervenors should be designated to present evidence, to conduct cross-examination, to submit briefs, and to propose findings of fact, conclusions of law, and argument.
Where such consolidation has taken place, those functions should not be performed by other intervenors except upon a showing of prejudice to such other intervenors' interest or upon a showing to the satisfaction of the board that the record would otherwise be incomplete.
Should Dr. Fankhauser or any other intervenor seek to cross-examine upo3 any matter as to which they are not lead intervenor, they must first seek the permission of the Board through a demonstration of either prej-udice to their interests from a denial of the opportunity to cross-examine ;
or that the absence of such cross-examination would leave the record on this proceeding otherwise incomplete.
Only upon such showings, to the satisfaction of this Board, will an intervenor, other than a lead, inter-venor, be permitted to cross-examine witnesses.
d
, Another telephone conference was scheduled by the parties to the January 15, 1982 tel'ephone conference to be held at 4:30 p.m. on Tuesday, January 19, 1982.
All parties represented during the first conference. call were to be represented at the second conference call; however, despite the fact that counsel for Applicant, Mr. Wetterhahn, was standing.by his tele-phone, the NRC operator was not able to include him in the conference call.
Before terminating the call, the Board directed that counsel confer in an attempt to resolve a potential conflict as ?.o the scheduling of witnesses and a discovery matter, these being the only items identified as needing resolution.
By virtue of a subsequer;t discussion between these parties, and the Chairr.ian of the Licensing Board, it has been concluded that ZAC-ZACK Witness Hendrik D. Gideonse will testify on January 26,1982, subse-quent to the testimony of the panel of witnesses introducing the Ohio emer-gency response plans.
The parties are alvised that scheduling difficulties
' indicate that Mr. Gideonse's testimony must be completed on this day.
IT IS S0 ORDERED.
I FOR THE ATOMIC SAFETY AND LICENSING BOARD ohn F ry 2, III, Chairman ADMI ISTR.11VE JUDGE Dated at,Bethesda, Maryland, this 22nd day of January, 1982.
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