ML20053E099

Answer Opposing Miami Valley Power Project 820518 Motion for Leave to File New Contentions.Project Failed to Demonstrate Existence of Significant Health or Safety Issue to Justify Reopening Proceeding.Certificate of Svc Encl

ML20053E099
Person / Time
Site:	Zimmer
Issue date:	06/02/1982
From:	Conner T CINCINNATI GAS & ELECTRIC CO., CONNER & WETTERHAHN
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20053E100	List: ML20053E099 ML20053E103
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NUDOCS 8206070603
Download: ML20053E099 (70)

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CP'.HTED WC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION M -3 A10 :13 Before the Atomic Safety and Licensing Board UdCM ,'4..q .(4

, ;.(E 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)

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APPLICANTS' ANSWER TO MOTION BY MIAMI VALLEY POWER PROJECT FOR LEAVE TO FILE NEW CONTENTIONS Preliminary Statement ,

On May 18, 1982, Miami Valley Power Project ("MVPP")

moved for the admission of eight new contentions and for the reopening of this proceeding to further consider alleged quality assurance deficiencies in the construction of the Zimmer Station. The motion resurrects old matters, presents no new information and constitutes a serious disregard of the licensing procedures under the rules of the Nuclear Regulatory Commission ("NRC" or " Commission"). MVPP misrepresents the actions and positions of the NRC Staff in resolving the quality assurance matters it is presently reviewing. It also ignores the independent duties of the Staff under the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 et sea. ("the Act") , for review of uncontested health and safety matters at the operating license stage.

The motion is obviously timed to produce the greatest D O

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possible adverse impact upon the timely issuance of an operating license and thereby deny Applicants their right under the Act to a fair and timely processing of the application for an operating license for Zimmer.

It must be noted that the time for filing contentions long since passed more than seven years ago; nothing has been put forth which would justify the extreme lateness of this motion. This most recent initiative by MVPP to substitute, in effect, the Government Accountability Project

(" GAP") for itself by yet another in the series of changes in counsel constitutes a blatant example of " passing the baton" not permitted by the Commission's rules. Regardless of whether MVPP is technically " owned" by CARE, variously known as the Cincinnati Alliance for Responsible Energy and Citizens Agair e a Radioactive Environment, -1/ it is clear that the motion is merely a vehicle for GAP to launch yet another unwarranted attack against the Zimmer quality assurance program in its efforts to delay the plant.

In this regard, MVPP asserts that it can make a " unique contribution" 2/ on the basis of GAP's involvement. To the contrary, MVPP's submittal clearly indicates otherwise.

Indeed, the only factual support for the new proposed J/ In a press release dated May 18, 1982 (copy attached) ,

MVPP states that "it is a wholly-owned subsidiary of CARE." As the Board may be aware, this motion is just one more step in an orchestrated campaign by CARE and GAP against the Zimmer Station.

2/ MVPP Motion at 26.

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k-contentions is derived from an Investigation Report prepared by the Of fice of Inspection and Enforcement in conjunction with the Notice of Violation served by' letter dated November 24, 1981. While MVPP promises much in the way of new documents, affidavits and witnesses, the motion fails to include any such documents or testimony. Accordingly, no matter is contained in the motion which has not already been fully reviewed by the NRC, not only as part of its routine ,

inspection program, but also as a result of its investigation, inter alia, of the now refuted charges made by GAP to the NRC at an earlier time. The means of resolving pending matters is described in the Applicants' 1

Answer to the Notice of Violation and in the Quality

, Confirmation Program described below.

As a result of its investigation, the NRC by an l Immediate Action Letter dated April 8, 1981 required improvements in quality assurance at Zimmer, which have been implemented by way of Applicants' Quality Confirmation Program. These new efforts have also addressed the items contained in the Notice of Violation. The NRC has confirmed the success of these undertakings in a letter originated by Region III from William J. Dircks, Executive Director for Operations, to Senator Walter D. Huddleston, dated January

-3/ See Investigation Report 50-358/81-13 at Section 5. Of the multitude of allegations made by GAP, the NRC found only one to be of substance.

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27, 1982, regarding these corrective ac-ions, which stated in part:

Last April the NRC required Cincinnati Gas and Electric Company to sub-stantially upgrade its quality assurance program in order for construction work to continue. The improvements included a significant expansion of the utility's quality assurance staff, more detailed inspection procedures, retraining of quality control personnel and --

most importantly -- a 100 percent duplication by Cincinnati Gas and Electric Company '

of subsequent safety related quality control inspections performed by site contractors. These actions provided assurances, in our view, that ongoing construction activities would be adequately controlled.

. . . . We are satisfied that the quality confirmation program, monitored by the NRC, and other augmented NRC inspection activities will provide a full and adequate evaluation of the Zimmer construction.

Thus, even if quality assurance deficiencies existed, corrective actions necessary to meet NRC requirements have rendered these matters moot.

The time has come to concentrate on the completion of the Quality Confirmation Program by the Applicants and the NRC's completion of its inspection and enforcement effort regarding the Zimmer Station. To divert resources to the conduct of legal proceedings to review these items anew would be contrary to specific Commission policy. MVPP's instant motion to rehash settled matters should be rejected as a belated tactic to delay licensing which does not, for the reasons discussed below, satisfy the requirements for

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the reopening of a proceeding and the submission of late contentions. Moreover, even if a hearing on such issues were held, the result would only lead to having the Staff assure that all quality assurance requirements had been met the exact posture which exists at present.

I. MVPP IS NO LONGER VIABLE AND THE MOTION IS AN ATTEMPT TO IMPROPERLY SUBSTITUTE A NEW PARTY The pleadings and other statements made with regard to the sponsorship of the eight newly proffered contentions raise serious questions as to the actual party in interest in the moving papers. Applicants submit that it is now clear that the group admitted as an intervenor by the Licensing Board in 1976 is not, in reality, the one pursuing these new contentions. A new entity, which is a , legal stranger to the proceeding, has arrived to take the baton from previous entities which have participated in various prior stages of this proceeding, albeit under the same name.

! In conjunction with the filing of these contentions, a press l

release was issued on May 18, 1982 by CARE (copy attached) and, in particular, Tom Carpenter, identified as a member of the " CARE staff." In this press release, the Miami Valley i

Power Project is stated to be "a wholly owned subsidiary of the Cincinnati Alliance for Responsible Energy (CARE)," a new piece to the puzzle which was previously unknown to l Applicants and undisclosed on the record. In the same press release, it is stated that CARE has retained GAP in l

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Washington, D.C. as legal counsel for the hearings. The press release then outlines GAP's wholly separate involvement on its own with regard to the Zimmer Station.

As the original entrant into this proceeding, MVPP was an organization centered in Dayton, Ohio some 60 miles from the Zimmer Station whose members' interest in this proceeding, as determined by the Licensing Board, was solely that of customers and ratepayers of Dayton Power & Light Company. 4/ However, all evidence points to the fact that this original entity ceased to be viable. Certainly, the newly proferred contentions bear no relationship to the interest of MVPP members as ratepayers of the Dayton Power &

Light Company. -S/ GAP has now stepped in to wear the mantle of the demised intervenor because it could not independently satisfy the NRC's requirements for a demonstration of interest.

Sometime in 1979, there was a complete turnover in the i

i organization from the original group, changing to one whose membership and officers lived in or near Cincinnati.

Applicants are not aware of any of the original members or principals who still retain their affiliation. Apparently

-4/ " Order Granting Petitions Providing for Hearing" (March 19, for . Intervention 1976) (slip op, at and 18).

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5/ It should be noted that all contentions raised by MVPP at that time related either to "need-for-power," fuel supply, or financial qualifications, all of which are economic issues.

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sometime after this second metamorphosis, the organization was gobbled up by CARE and GAP. Aside from its participation in this hearing, Applicants are unaware of any activity carried on in the name of MVPP.

While under the guise of continuity by retaining the same name, MVPP is in actuality a mere facade, used and then discarded by succeeding self-appointed groups as a surrogate to show technical compliance with the Commission's interest requirement for intervenors. MVPP has gone through so many metamorphoses as to be unrecognizable as the original legal entity the Board granted intervenor status in this proceeding.

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For the first time, through the press release, the Board and parties now learn that MVPP is a wholly owned subsidiary of CARE. Neither the petition filed by MVPP on October 28, 1975 nor, to our knowledge, any subsequent pleading identifies the organization as a subsidiary of CARE or state any other relationship with it. Nor is any mention made of the existence of stock or any other interest " owned" by anyone. Certainly, the avowed purposes of the original MVPP are wholly different from those of GAP and CARE. These factu could have been significant in the Licensing Board's action on previous efforts by the Applicants to determine

_6/ MVPP has been dilatory in its cooperation in discovery matters and resisted repeated efforts to speed up or simplify the hearing issues.

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1, - 8-whether the original MVPP had any continuing existence. In ruling on a request for discovery to probe the interest of MVPP, the Board stated:

i (T]here is a difference between the situation (1) where one organization replaces another and (2) where an organization's membership changes.

" People join. People leave." But an organization may nevertheless continue to exist. Clearly, that circumstance is i not equivalent to the replacement of one organization in a proceeding with ,

another, entirely disparate organiza-tion. l/

Had the Board been aware that an entirely disparate organization had taken over MVPP, the original entrant in this proceeding, its ruling on the motion might well have been different. However, by the silence of the attorneys and other spokesmen for MVPP, relevant information was kept from the Board and parties. To-this very moment, MVPP has failed to notify this Board of its absorption by CARE.

For each new issue which some group seeks to raise concerning the Zimmer station, the name of MVPP is taken over like a hermit crab utilizes an empty shell for its home to be abandoned when outgrown and taken up by another. In 1979, the Cincinnati Alliance for Responsible Energy (which, as Applicants understand, was and still is the Citizens Against a Radioactive Environment) apparently took over the l/ " Memorandum and Order Concerning Discovery Motions" (April 17, 1979) (slip op. at 2) ,

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MVPP name to raise new issues. From all information available to Applicants, the membership has apparently changed completely and the organization is now based entirely in Cincinnati instead of Dayton. Its surreptitious takeover is an obvious attempt to avoid the need for compliance with the Commission's regulations for new petitioners to file late petitions to intervene.

The Applicants submit that, in fact, what the Board has ,

before it is not a single entity with continuing existence, but a series of new intervenors attempting to subvert the intervention requirements of the Commission in 10 C.F.R. 52.714 and flit in and out of the proceeding at will. The Commission has consistently prohibited the entry of such new entities in this manner, particularly where substitution of a party is sought at the final hour.

In Gulf States Utilities Company (River Bend Station, Units 1 and 2) , ALAB-444, 6 NRC 760, 795-98 (1977), the Atomic Safety and Licensing Appeal Board rejected an attempt by one intervenor to substitute itself for an existing party even though that new intervenor was willing to take the case I

as it found it. The Appeal Board established the applicable standard:

Also pertinent is the observation of the District of Columbia Circuit in the

course of its affirmance of a Commission order which had denied a late intervention petition:

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We do not find in statute or case law any ground for accepting the premise that proceedings before administra-tive agencies are to be constituted as endurance contests modeled after relay races in which the baton or proceeding is passed on successively from one legally exhausted contestant to a newly arriving legal-stranger. . . Easton Utili-ties Commission v. AEC, 424 F.2d 847, 852 (1 70) [ Emphasis added.]

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Moreover, in Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 (1979), the Appeal Board stated that the fact that an organization was newly formed would not justify late intervention:

If newly acquired standing (or organi-zational existence) were sufficient of itself to justify permitting belated intervention, the necessary consequence would be that the parties to the pro-ceeding would never be determined with certainty until the final curtain fell.

Assuredly, no adjudicatory process could be conducted in an orderly and expedi-tious manner if subjected to such a i handicap.

This question does not come before this Licensing Board on a clean slate. The Applicants previously moved to determine the status of the Miami Valley Power Project in this proceeding and thereafter requested the Licensing Board l

to dismiss this entity as a party. -8 /

4 While the Board at l

_8_/ " Motion to Require Response to Interrogatories" (March 8, 1979).

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that time held that- such action was not warranted, S Applicants b e l i e v e ,t h a t , as discussed above, the Board's decision was significantly affected by the lack of candor of MVPP's representatives. The de facto substitution of a new party and continuing failure of MVPP to inform it of the fundamental changes in the organization alone warrant the Board's rejection of these new contentions.

It is submitted that the new contentions should be .

denied based upon the conduct of the intervenor and the fact that the new entrant into the proceeding has failed to justify its lateness and its interest in accordance with the NRC regulations.

II. The New Contentions Should Be Rejected As Untimely.

Even if the Board should determine that MVPP has continuing. vitality, the motion should be denied because it does not pass muster under the test for late contentions.

Any intervenor who seeks the admission of contentions beyond the time specified in 10 C.F.R. S2. 714 (b) must satisfy the requirements for late intervention set forth in 10 C.F.R.

i 9/ See note 7, supra.

-10/ GAP's professed interest in quality assurance does not give rise to standing under 10 C.F.R. S2.714.

Westinghouse Electric Corp. (Export to South Korea),

CLI-80-30, 12 NRC 253, 258 (1980).- No " distinct and

palpable harm" to GAP has been shown. Transnuclear,

, Inc., CLI-77-24, 6 NRC 525, 531 (1977).

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4 S2.714 (a) (1) (i-v) . In this particular proceeding, the last day for filing contentions with a petition to intervene pursuant to the Notice of Hearing, dated September 24, 1975 was October 24, 1975. 11/ MVPP contends that subsequent events justify the filing of late contentions at this time.

However, as discussed more fully below, the developments upon which MVPP relies in submitting late contentions on quality assurance occurred long ago, and information concerning this matter has either been of public record or could have been developed at a much earlier time. No good cause has been shown by MVPP for waiting until the end of the hearings and the closing of the record to file its new contentions, nor has MVPP otherwise satisfied the Commission's requirements for admitting late contentions.

1. No " good cause" has been shown for MVPP's lateness. The decisions of the Appeal Board stress that timely compliance with the rules is ordinarily required for the acceptance of proposed contentions and that late contentions may not be admitted without a strong showing of good cause. -12/ As the Appeal Board explained in the Three Mile Island proceeding:

10 C.F.R. S2.714 (a) expressly provides that nontimely intervention petitions ll/ See 40 Fed. Reg. 43959 (September 24, 1975).

12/ The Statements of Consideration for 10 C.F.R. 52.714 contirm that the same rules apply for considering late contentions as for late petitions seeking intervention.

See 43 Fed. Reg. 17798, 17799 (May 26, 1978).

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"will not be entertained" absent a determination by the Licensing Board "that the petitioner has made a sub-stantial showing of good cause for f ailure to file on time. " As construed by the Commission in its West Valley decision two years age (Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273 (1975)], .

. . "[1] ate petitioners properly have a substantial burden in justifying their tardiness. And the burden of justifying intervention on the basis of the other factors in the rule is considerably greater where the latecomer has no good ,

excuse." West Valley, 1 NRC at 275. M/

More recently, the Appeal Board in Perkins ruled that a late petitioner must " affirmatively demonstrate" such good cause. E In Midland, the Appeal Board sustained the denial of a petition for intervention where contentions had been filed two weeks late. The Appeal Board noted that petitioner had " offered no coherent or plausible excuse for the delay and thus has failed to establish the requisite

' good cause' and other factors set forth in 10 C.F.R.

52.714." EI M/ Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 615 (1977)

(footnotes omitted) (emphasis added). This statement of the rule was reiterated by the Appeal Board subsequently in Duke Power Company (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-440, 6 NRC 642, 643 (1977) and Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-431, 6 NRC 460, 462 (1977).

M/ Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615, 12 NRC 350, 352 (1980).

15/ Consumers Power Company (Midland Plant, Units 1 and 2),

ALAB-624, 12 NRC 680, 682 (1980). It is significant (Footnote M/ continued on next page)

In reversing the grant of an untimely petition for intervention, the Appeal Board in Summer found that the adoption of post-TMI requirements on August 19, 1980 did not justify petitioner's waiting until March 1981 to file its petition. The Appeal Board summarized the destructive impact of the anticipated delay caused by the late intervention as follows:

[ Prior to the filing of the late '

petition], the applicants and the staff had every right to assume that both the issues to be litigated and the participants had been established with finality. Simple fairness to them - to say nothing of the public interest requirement that NRC licensing proceedings be conducted in an orderly fashion -

demanded that the Board be very chary in allowing one who had slept on its rights to inject itself and new claims into the case as last-minute trial preparations were underway.

1_5 / (continued) that the Appeal Board applied this exacting standard to a pro se petitioner. A party which has been admitted to the proceeding and is represented by counsel ob-viously bears an even greater burden to explain its lateness. It also bears mention that the " good cause" determination " depends wholly upon the substantiality of the reasons assigned for not having filed at an earlier date," and not the alleged significance of the subject matter. South Carolina Electric and Gas Co.

(Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 887 n.5 (1981) (emphasis in original) , aff'd sub nom. without opin., Fairfield United Action v. NRC, No. 81-2042 (D.C. Cir., April 28, 1982). This principle was reaffirmed by the Appeal Board in Cleveland Electric Illuminating Company, (Perry Nuclear Power Plant, Units 1 and 2) , ALAB-675 (May 17, 1982) (slip op, at 14 n.9).

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By instead remaining on the sidelines while the proceeding moved closer and closer to trial, it voluntarily assumed the. precise risk which has now materialized: that its participation in the proceeding could no longer be sanctioned without destructive damage to both the rights of other parties and the integrity of the adjudicatory process itself. M/

Obviously, the rationale of the Appeal Board is even more compelling where the hearing is not merely imminent but completed. -

Strict observance of filing deadlines is also mandated by the Commissioner's Statement of Policy on Conduct of Licensing Proceedings, E! which expresses the Commission's direction that all reasonable measures should be taken to expedite the conclusion of hearings on reactor operating licenses. The Commission specified that licensing boards "are encouraged to expedite the hearing process by using those management methods already contained in Part 2 of the Commission's Rules and Regulations" and added that its

" reemphasis of the use of such tools is intended to reduce the time for completing licensing proceedings." El l_6_/ Summer, supra, ALAB-642, 13 NRC at 886, 895.

-17/ Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981).

18/ Id. at 453.

8 The discussion by MVPP in its motion fully fails to show the " good cause" required under the rules and these decisions. Its assertion that it obtained the information necessary for the preparation of quality assurance contentions "only after the NRC issued its second IE Report and MVPP communicated with CG&E and KEI employees" -19/ is untenable on its face. MVPP glosses over the fact that CARE, which it now asserts is a parent organization, has been rec 3iving a copy of inspection reports routinely since April 12, 1979. MVPP also ignores the fact that GAP, its counsel in this matter, was fully cognizant of these allegations in requesting an investigation by the Office of the Special Counsel of the Merit Systems Protection Board by letter dated December 10, 1980. In that 24-page letter, GAP charged that the NRC conducted an investigation of quality assurance violations by Thomas Applegate in a " wrongful and capricious manner" 2_0,/ and sharply criticized the Staff's findings in Investigation Report No. 50-358/80-09, issued on July 3, 1980. El 19/ MVPP Motion at 22-23.

l 20/ Letter from GAP to Office of the Special Counsel fo the Merit Systems Protection Board at 1 (December 10, 1980).

-21/ Also, the Notice of Violation issued on November 24, 1981 indicates that a copy was served upon CARE. As i

noted, MVPP has identified CARE as its parent organi-zation in a press release, dated May 18, 1982 (copy attached), which states that MVPP is "a wholly owned l

(Footnote 21/ continued on next page).

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• Thus, as a party to the proceeding, MVPP has had access to the correspondence and the earlier reports relating to quality assurance matters. For example, MVPP cites the Region III Immediate Action Letter of April 8, 1981, leading to the establishment of Applicants' Quality Confirmation Program, which MVPP now maintains has been inadequate, although it was aware of this development at the time. E '

Moreover, MVPP relies upon a number of public statements by ,

NRC officials and their testimony before Congress , much of which predated the issuance of the NOV. And as demonstrated by the comments of CARE and GAP spokesmen Thomas Carpenter and Thomas Devine in their joint press release, MVPP has been aware of GAP's investigative efforts and the two groups are coordinating their activities. The CARE newsletters and correspondence filed herewith show MVPP's awareness of the Applegate charges and GAP investigation in 1980 regarding 21 (Continued) subsidiary of the Cincinnati Alliance for Responsible Energy." Mr. Carpenter, an MVPP spokesman, has made l

limited appearances before this Board which specifi-cally evidenced a knowledge of quality assurance matters (Tr. 4 873) (January 25, 1982), and -has also j

appeared on earlier occasions. The NOV letter also indicates that a copy was served upon Thomas Applegate and GAP, whose previous involvement at Zimmer, CARE alleged, led to the issuance _of the NOV to Applicants (see attached press release).

l 22/ A copy of the letter was sent to the local Public Document Room and was served upon Citizens Against a Radioactive Environment. As noted, a review of I&E reports indicates that CARE has been routinely served with a copy of all inspection reports since April 12, 1979.

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quality assurance at Zimmer. -23/ In fact, their press release boasts that " CARE & GAP have worked together on the whistle blowing disclosures at Zimmer in the past."

Thus, all of the information needed by MVPP to frame proposed contentions has long been in existence. The IE Report accompanying the NOV was issued more than six months ago, and this fact alone would justify a findirg of unexplained lateness. But, additionally, it cannot be ,

overlooked that the report was based on an investigation which was initiated on January 12, 1981, a full 16 months prior to the filing of the proposed contentions. GAP, acting as the new representative of the proponent of the contentions, claims credit for the commencement of the NRC's investigation, E based upon its allegations submitted to the NRC by letters dated December 29, 1980 and January 5, 1981. MVPP even relies upon GAP's "long investigation at Zimmer" in 1980 to support its claims. N Moreover, GAP has been sending such allegations to the committees of Congress. While practically all of its allegations were shown to be unfounded, 26/ the interrelationship between GAP and MVPP makes it evident that MVPP was well aware of the

-23/ See attached CARE newsletters and le'.ters to CG&E dated December 18 and 19, 1981.

24/ See MVPP press release, dated May 18, 1982.

5 2_5_/ MVPP Motion at 26.

2_6_/ See IE Report Section 5.

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g  % i alleged conditions ofeshich it now complains. Thus, MVPP is hardly in a position to deny ignorance of earlier developments; EI .

The'only case cited by'MVPP in1suppoit of a showing of

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" good cause" is inapposite. The decision by the Commission in Indiana and s Michigan Electric Company (D'onald C. Cook Nuclear Plant, Units 1 and 2), CLI-72-25, 5 AEC 13, 14 (1972), authorizes amended contentions only on the basis of .

"new information appearing in previously , . unavailable documents" and only- if the proposed amendments are

" expeditiously presented.",2,8/ ,The information presented by MVPP in its motion is anythi.ng but "new" and certainly has not been " expeditiously presented," even judging by MVPP's own standard, ,i e., the availability of the I&E Report on November 24, 1981. 2,9,/

27/ The fact that MVPP may have wished' "to corroborate" information by interviewing Kaiser employees or other certain individuals is; certainly not " good cause" for delay.

l >t 2_8/ 5 AEC at 14 (emphasis added).

L 29/ Moreover, many of the contentions do not even relate to l specific alleged deficiencies in the implementation.of l Applicants' Quality Assurance Program, but rather

! assert deficiencies in its " structure and premises,"

l e.g., as to training procedures, staffing, audits and I

the organizational independence of QA in general.

MVPP's Motion for Leave to File New Contentions at l 9-10. It is certainly far too late in the day for an l .

intervenor to challenge the methodology and procedures l utilized by Applicants in the Quality Assurance Program at Zimmer.

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Q In essence, MVPP's purported " good cause" boils down to an assertion that it had relied upon the NRC Staff to ensure Applicants' compliance with the quality assurance criteria of 10 C.F.R. Part 50, Appendix D, through its general review and enforcement authority and, in particular, by its oversight of Applicants' Quality Confirmation Program. Now, MVPP has had second thoughts and wishes to litigate these matters itself as if the undertakings of the Staff and .

Applicants to improve quality assurance at Zimmer had never happened. However, no information is presented which raises any doubts as to the implementation of this program or its review by the Staff.

Similar attempts have been rejected time and again by the Commission's adjudicatory boards. For example, in the Perkins proceeding, late intervention was denied where the petitioner alleged that its intervention was necessary to correct " deliberate misrepresentation by tha NRC Staff." E!

Similarly, in the Skagit proceeding, -31/ the Appeal Board rejected the argument that petitioners had relied upon the position taken by the NRC Staff, inter alia, in deciding not to intervene earlier. The Appeal Board ruled that l

l l 30_/ Perkins, ALA3-615, supra at 353.

-31/ Pugit Sound Power & Light Company (Skagit Nuclear Power Projcct, Units 1 and 2), ALAB-552, 10 NRC 1 (1979),

l vacated a_s moot, CLI-80-34, 12 NRC 407 (1980).

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petitioners could not simply " assert that they were lulled into a false sense of security" by the Staff's position. 1 MVPP's implied assertion that it was impossible to file new contentions until after the issuance of the IE Report is I

analogous to the position of a petitioner which was rejected in the Allens Creek proceeding. 52/ There the Licensing Board denied late contentions despite petitioner's assertion that he had learned of a downgrading of the Applicants' bond ,

rating only in a recent newspaper article. The Licensing Board stated: "It cannot be seriously contended that the newspaper article opened the door for the first time to the exploration of Applicant's ability to raise funds necessary for construction." 34/ -

In affirming this result, the Appeal Board noted that the issue was raised only after three months of evidentiary hearings and on the eve of the closing of the record. In citing its recent Summer decision 25 the Appeal Board stated that the logic in denying la'e petitions "has yet greater force where not merely trial preparation

~~32/ 10 NRC at 9. See also Consolidated Edison Company (Indian Point Station, Unit No. 2), Docket No.

50-24 7-OLA " Memorandum and Order", (January 4, 1982).

33/ Houston Lighting & Power Company (Allens Creek Nuclear Generating Station, Unit 1), Docket No. 50-466-CP,

, " Memorandum and Order" (January 12, 1982).

i 34/ Slip op, at 3.

35/ See pages 14-15, supra.

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CW but also the hearing itself has al' ready taken place by the time the belated petition is received." 3_6_/

Where petitioner alleged that information regarding his contention on electromagnetic pulse had come from a recent -

publication, the Board rejected this rationale, stating:

Clearly, dissemination of data upon this phenomenon, whether resulting. from nuclear or conventional explosions, is not of recent vintage, despite [ peti-tioner's] allegation that information '

thereon was unavailable until the publication of the Science News article.

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Likewise, the Board in Perry -

38/ rejected a late contention based on a newspaper article, and held that "a general newspaper article, not reflecting any ~ new research or previously unavailable insights, cannot provide an acceptable excuse for late filing." Otherwise, "even P

matters broadly known could be brought to an intervenor's l

l 36/ Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671 (March 31, 1982) (slip op, at 6) .

l 31/ Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1) , Docket No.

< 50-456-CP, " Order" (July 22, 1981) (slip op. at 2). The

( Board then pointed out that the magazine article itself reflected the study of the EMP phenomenon in a number of other sources predating the article.

l 38/ Cleveland Electric Illuminating Company (Perry Nuclear l

Power Plant, Units 1 & 2), Docket Nos. 50-440-OL and j 50-441-OL, " Memorandum and Order" (March 3, 1982).

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attention through a newspaper article about a matter that was already quite stale." 39/

Accordingly, MVPP has not been diligent in " discovering or exercising (its] rights." 40/ As the Licensing Board instructed in the Summer proceeding, "a petitioner cannot sit back and observe the proceeding, and then intervene upon deciding that its interest [s] are not be:i.ng adequately protected by existing parties." S ,

The statement that "MVPP is only moving to admit these contentions now due to the NRC Staff's precipitous recommendation that the Board immediately grant an operating license" 42/ reflects so complete a misunderstanding of the Commission's regulations and so badly misrepresents the existing facts and Staff's actions as to warrant total disbelief. It is straining credulity that MVPP and its H/ Slip op. at 3. See also Pennsylvania Power & Light Company (Susquehanna Steam Electric Station, Units 1 and 2), Docket Nos. 50-387 OL and 50-388 OL,

" Memorandum and Order on Pending Motions. " (September 23, 1981).

M/ Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station), Docket No. 50-309-OLA, " Memorandum and Order Regarding Petition for Leave to Intervene" (January 22, 1982) (slip op. at 4). Petitioner in that case similarly alleged that he was awaiting information from the NRC before taking a position on an issue.

-41/ South Carolina Electric & Gas Company (Virgil C. Summer Nuclear Station, Unit 1) , Docket No. 50-395 OL,

" Partial Order Following Prehearing Conference" (April 30, 1981) (slip op, at 4). Alleged misrepresentations by the Applicant were likewise alleged as a basis for lateness.

42/ MVPP Motion at 23.

d attorneys by this stage in the proceeding do not appreciate the dichotomy in the responsibilities of the Licensing Board and Staff at the operating license stage. In its proposed findings, the Staff took the position that the Licensing Board should authorize the issuance of an operating license as provided in the regulations. It is clear that in its recommendation to the Licensing Board in its proposed findings, the Staff was addressing only those issues before ,

the Board and not issues arising under the Staff's residua 2 independent duty at the operating license stage to make all other requisite health and safety findings prior to the issuance of an operating license. E As has been stressed by both the Applicants and Staff in their pleadings in this case, even if the Licensing Board were to make favorable findings on the issues before it, the

Staff must still make findings, inter alia, regarding the satisfactory completion of construction before an operating license could and would be issued. -44/ Nothing in the record would even suggest that the NRC Staff has abdicated -

its duties in this regard. To the contrary, there is every indication that the Staff will pursue quality assurance M/ See 10 C.F.R. S2.760a.

~

44/ See, e.g., NRC Staff's Proposed Findings of Fact, Conclusions of Law and Order in the Form of an Initial Decision at 60 (June 9, 1981); Applicants' Proposed Findings of Fact and Conclusions of Law in the Form of an Initial Decision et 9 (April 24, 1981); and Applicants' Proposed Findings of Fact and Conclusions of Law Relating to Emergency Planning Issues in the Form of an Initial Decision at 157 (April 2, 1982).

l l

l

I

. 1 matters until it is satisfied and then, and only then, would an operating license issue.

2. The NRC Staff will adequately protect MVPP's interests. The NRC Staff has an independent, statutory responsibility to take all measures necessary to protect the public health and safety. 45/ The Appeal Board itself expressly recognized this fact as a basis for denying late intervention in Summer, stating: .

As to those aspects of reactor operation not considered in an adjudicatory proceeding (if one is conducted) , it is the staff's duty to insure the existence of an adequate basis for each of the requisite Section 50.57 determinations.

6/

Thus, the holding of a hearing in this instance would be the doing of a useless thing since the Board "could do no Itore than order that [ alleged deficiencies] be corrected and that the corrections be monitored by Staff - a procedure that is already in effect without Board intervention." E The fact that the Staff has undertaken and discharged its obligations with great diligence is evident on the face of the record reflecting its oversight of quality assurance 4_5) See generally Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 201 (1978); New England Power Company (NEP, Units 1 and 2), 7 NRC'271, 279 (1978).

4_6) Summer, supra, 13 NRC at 896 (footnote omitted).

E/ South Carolina Electric & Gas Company (Virgil C. Summer Nuclear Station, Unit 1) Docket No. 50-395 OL,

" Memorandum and Order" (April 28, 1982) (slip op. at 4).

activities at Zimmer. It is incongruous that MVPP relies almost exclusively upon the IE Report as the basis for its contentions, but denigrates the Staff efforts. Although information has been made available to the Board, MVPP also unjustly accuses the Staff of failing in its responsibility to keep the Board informed of significant developments. 48/

In any event, MVPP's almost exclusive reliance upon Staff documents to press its contentions clearly demonstrates that .

it can do little more than " traverse ground which has already been plowed (albeit not to [its] satisfaction)." 49/

3. MVPP has not shown an ability to assist the Board in developing a sound record. As noted previously, the motion by MVPP is almost wholly reliant upon the investigation conducted by the NRC Staff from January to October 1981 and the subsequently issued IE Report. The remaining materials submitted by MVPP are simply a smattering of correspondence to and from the NRC and Applicants, congressional testimony and statements, newspaper clippings and such. The only document generated by MVPP is a 16 month-old affidavit of a former employee, which addresses physical security at Zimmer, not quality

-48/ See Memorandum from Robert L. Tedesco, Assistant Director for Licensing, Division of Licensing, to the Atomic Safety and Licensing Board (December 17, 1981);

Memorandum from Robert L. Tedesco, Assistant Director for Licensing, Division of Licensing, to the Atomic Safety and Licensing Board (July 15, 1981).

49/ Puget Sound Power & Light Company (Skagit Nuclear Power Project, Units 1 and 2), ALAB-559, 10 NRC 162, 172 (1979).

I assurance. Although MVPP's motion is replete with alleged deficiencies in the program at Zimmer, no substantiation is given, nor is there any other evidence that MVPP or its representatives are by training, education or experience technically qualified and competent in the area of quality assurance.

Certainly, MVPP has shown no special qualifications which would even begin to justify permitting it to take up .

quality assurance matters now that the record is closed and an Initial Decision is near at hand. To the contrary, its obsession with the alleged making of belt buckles and other alleged misconduct by contractor construction workers demonstrates its lack of understanding of genuine safety questions in the construction of a nuclear power plant pursuant to 10 C.F.R. Part 50.

MVPP's purported " grass roots" connections are no substitute for scientific and technical qualifications. Its self-serving declaration of expertise on the basis of Mr.

Applegate's allegations likewise proves nothing. As noted, supra, the NRC found practically all of those allegations to be unfounded. See Investigation Report 50-358/81-13 at Section 5. As for the " affidavits" and " internal documents that the NRC in its multiple investigations shunned," -50/

nothing has been produced nor even a proffer of a single new specific matter made.

50/ MVPP Motion at 26.

o As the Commission stated in the Pebble Springs proceeding:

Permission to intervene should prove more readily available where petitioners show significant ability to contribute on substantial issues of law or fact which will not otherwise be properly raised or presented, set forth these matters with suitable specificity to allow evaluation, and demonstrate their importance and immediacy, justifying the time necessary to consider them. 51/

As noted above, nothing is alleged by MVPP which is not being covered by the Quality Confirmation Program and the completion of the final steps of the Quality Assurance Program, pursuant to 10 C.F.R. Part 50, Appendix B.

In the Black Fox proceeding, the Appeal Board described the petitioner's ability to make a valuable contribution to the decision-making process as " foremost among [the]

factors" under 10 C.F.R. S2.714 (a) (1) . 52/ Applying this standard, the Appeal Board in the Watts Bar proceeding stated:

. .' . the absence of some clear indication that the petitioner has a substantial contribution to make on a l significant safety or environmental issue appropriate for consideration at the operating license stage . . . .

l

-51/ Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 617 (1976). '

52/ Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143, 1145 (1977). See l

also Virginia Electric & Power Company (North Anna l

Power Station, Units 1 and 2), ALAB-363, 4 NRC 631, 633 (1976).

O There is nothing before us which might suggest that this .

petitioner is qualified by either specialized education or pertinent experience to make a substantial contribution on one or more of the contentions which she seeks to have litigated. Nor . . . does she profess to have expert assistance available to her. 53_/

Petitioner's failure to specify its credentials or those of its members is much like tne situation in the Allens Creek proceeding, where the Appeal Board disallowed ,

intervention by an individual who, like petitioner here, "has offered nothing beyond his bare assertion which might lead (the Board] to believe that he would be able to make a significant contribution to the development of an evidentiary record on one or more safety issues." 54/

4. MVPP's interests will be adequately represented by the existing parties. Assuming arguendo that MVPP in fact has a valid interest within the meaning of the regulations and is not a new party, that interest has been and will

( continue to be adequately represented by the existing procedures and personnel within the agency, particularly the Regulatory Staff. As shown above,55/ the Staff has SJ/ Tennessee Valley Authority (Watts Bar Nuclear Plant, l Units 1 and 2), ALAB-413, 5 NRC 1418, 1422-23 (1977).

-54/ Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 244

, (1980).

5_5 / See pages 25-26, supra.

conducted two separate, thorough investigations of the charges leveled by GAP which concluded that most, if not all, of those charges, like the current MVPP and GAP charges, were unfounded. Because the Staff did not agree with it, GAP is now seeking to have another part of the agency involve itself in the matter. The Staff has made available to the Board the inspection reports which analyze the GAP charges. It is clear that in a hearing such as GAP .

seeks, nothing would be accomplished except a restatement of what has already occurred. GAP makes no effort to present any new information in its motion, but only continues to make exorbitant charges unsupported by any facts. By examining these reports, the Board can see that GAP's

" interests" have been fully and adequately reviewed and analyzed by the Staff.

5. Reopening the record to litigate new contentions on quality assurance 'will necessarily broaden the issues and greatly delay the proceeding. It cannot be doubted that j reopening the record at this juncture to litigate new

! contentions has the potential for substantial, if not enormous, delay. The NRC Staff's most recent investigation of the matters which MVPP wishes to rehash now itself took almost a year. Given the fact that an intervenor such ac l MVPP lacks the impartiality of the Staff and, as avowed f

opponents of the operation of the facility, would avail itself of all measures open to litigants in an adversary, i

, .. '^

adjudicatory procer,da.ng to cause further delay, it must be realistically estimated that the time to be expended if the record is reopened for this matter must . be measured in l years, not months. It is clear that the ~ major purpose of f MVPP is to delay the case. Its spokesman, Thomas Carpenter, i

! stated to the press that if they win their case, it could be

" years and years."56/

Anticipated delay of this degree is squarely contrary .

i to the Commission's policy on the conduct of licensing proceedings, which has recognized that the overall cost of significant delays in reactor licensing "could reach billions of dollars." 57/ The Commission has expressly instructed licensing boards "to expedite the hearing process" so that it " moves along at an expeditious pace, consistent with the demands of fairness." 58/ It has also f

specified procedures for dealing with delays . caused by l intervenors or even the Staff, 59/ and has stated its expectation that initial decisions "will issue as soon as practical after the submission of proposed findings of fact i

I

, 56/ See Cincinnati Enquirer at D2 (May 20, 1982) (copy attached).

57/ Statement of Policy on Conduct of Licensing l Proceedings, CLI-81-8, 13 NRC 452, 453-(1981).

58/ Id.

59/ Id. at 454.

I i

L

9 and conclusions of law," taking " precedence over other responsibilities" of the individual Administrative Judges. SS MVPP's assertions that little delay will occur clearly cannot be believed, particularly since it asks the Bodrd to

" establish a discovery schedule for full examination of the Applicant's [ sic] QA program, and most importantly CG&E's character and competence."$1 Obviously, such discovery .

would take months if not years in the hands of an intervenor seeking to delay the plant.

Further, the licensing of a nuclear reactor is certainly not dependent upon any alleged criminal investigation that GAP is attempting to stir up. The NRC is an independent regulatory body and bases its licensing determinations on the standards enunciated under the Atomic Energy Act of 1954, as amended, 42 U.S.C. S2011 et sea, and the regulations thereunder. Neither the Department- of Justice ncr any other agency of the Federal Government has j authority to veto or suspend nuclear licensing, even if, contrary to fact, there were any indication that it desired to delay the licensing of Zimmer.

60/ Id. at 458.

{l/ MVPP Motion at 28.

I l

l O

III. MVPP Has Not Met Its Heavy Burden In Requesting That The Record Be Reopened The motion by MVPP for leave to file new contentions ignores the fact that the taking of testimony before the Licensing Board in this case concluded on March 4, 1982 SI at which time the record was closed. A party seeking to reopen the record to file late contentions must first satisfy its heavy burden to justify reopening the case before the Board even reaches the five criteria for late contentions. S MVPP has failed to meet the heavy burden the decisions of the Appeal Board have placed upon such a proponent.

The standard enunciated in the Wolf Creek proceedingSI summarizes the basic legal requirements and has since been cited as the prevailing standard in reviewing a motion to reopen the record. The Appeal Board stated:

As is well settled, the proponent of a motion to reopen the record-has a heavy burden. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619, 620 (1976). The motion must be 6_2/ Tr. 7979.

Q/ South Carolina Electric & Gas Company (Virgil C. Summer Nuclear Station, Unit 1), Docket No. 50-395-OL,

" Memorandum and Order" (April 28, 1982) (slip op. at 2-3).

64/ Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320 (1978). This standard was approved by the Commission in Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 363 (1981).

i

both timely presented and addressed to a significant safety or environmental issue. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973); id., ALAB-167, 6 AEC 1151-52 (1973); Georgia Power Co. (Alvin W.

Vogtle Nuclear Plant, Units 1 and 2),

ALAB-291, 2 NRC 404, 409 (1975). Beyond that, it must be established that "a different result would have been reached initially had [the material submitted in support of the motion] been considered."

Northern Indiana Public Service Co.

(Bailly Generating Station, Nuclear-1), ~

ALAB-227, 8 AEC 416, 418 (1974). 6_5,/

MVPP's heavy burden in justifying a reopening of the record is substantially increased because it has been made at least a year and a half after the subject of the motion came to its attention.66/ The Appeal Board in Three Mile Island held that the heavy burden imposed upon the proponent of a motion to reopen is indeed significantly greater where t

l the lateness is unjustified:

In the case of a motion which is untime-ly without good cause, the movant has an even greater burden; he must demonstrate not merely that the issue is significant i but, as well, that the matter is of such gravity that the public interest demands its further exploration. 67/

i I

65/ 7 NRC at 338.

~66/ Members of MVPP and CARE have been bringing matters related to the construction of the plant to the Board's attention during the entire course of the proceeding.

l These matters have been duly investigated by the Staff and not a single significant matter has been found which was not already being pursued by Applicants.

67/ Metropolitan Edison Ccmpany (Three Mile Island Nuclear Station, Unit No. 2) , ALAB-486, 8 NRC 9, 21 (1978).

l L J

1 l

As the Appeal Board in the Perry proceeding succinctly stated: " Litigation has to end sometime." 68/

MVPP's motion is unquestionably untimely. Even a cursory review of cne proposed contentions and the bases cited in support of them demonstrates that primary reliance is based upon Investigation Report No. 50-358/81-13, dated November 24, 1981. It is clear for the reasons discussed above that MVPP has long been on notice of the investigation by the NRC into the Quality Assurance Program at Zimmer since January 12, 1981. Its counsel, in fact, claims credit for its ini.tiation. Thus, none of the documentation upon which MVPP relies presents "new" information, and the single affidavit which it has submitted is irrelevant to quality 1

assurance matters. MVPP has therefore failed to justify its untimely request to reopen the record.

The Appeal Board in Diablo Canyon denied a motion to reopen under very similar circumstances. The joint t

intervenors in that case moved to reopen the record based upon a report by the United States Geologic Survey. In denying the motion, the Appeal Board stated:

We have examined the USGS report with care. We note that, while its analysis is new, the seismic motion records I

underlying it are not. For the most part these either were or might have been addressed at the reopened hearing 68,/ Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 750 (1977).

on IV-79 . . . . Our point is not that the USGS Report is irrelevant. Rather, it is that the subject matter it addresses was thoroughly litigated before us, albeit on the basi s of analysis supplied by other qualified experts.

Finally, we have thoroughly examined the eviderce now before us bearing on the points covered by the new Open-File Report. Even were the caveat we men-tioned not present, we are satisfied that the report itself is insufficient to overcome the results required by the record as we have discussed and eval-uated it in this decision. In all the circumstances, and particularly as the new report would not effect the outcome of the case, the standards for reopening are not met. 69_/

By comparison, the materials MVPP has assembled are not even "new," and the underlying information they contain is certainly not "new."

In the Perkins proceeding, the Licensing Board denied the motion to reopen the record to consider new site suitability issu~es because it " determined that the Intervenors had the opportunity to press this issue by proposing an acceptable contention in the petition to intervene," but did not do so. 70/

-69/ Pacific Gas and Electri*c Company (Diablo Canyon Nuclear Power Plant, Units 1 & 2) , ALAB-644, 13 NRC 903, 994-95 (1981) (emphasis added).

~

70/ Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), Docket Nos. STN 50-488, 50-489 and 50-490,

" Order Relative to Motions to Reopen the Record for Additional Hearings" (April 12,- 1979) (slip op. at 7-8).

T ce In the TMI-1 proceeding, the Licensing Board denied "out-of-hand" a motion by intervenor to consider the results of an April 1981 examination of control room operator candidates as " unjustifiably late" where the intervenor asked the Board to reopen the record to consider these results on December 24, 1981. b It is also highly pertinent that MVPP wishes to reopen the hearing on a matter which has not previously been ,

contested by MVPP or any other intervenor. Thus, this is not an instance in which the Board must simply determine whether some additional data on a contention may be admitted to supplement existing testimony and documents of record.

A request by an intervenor to interject an entirely different issue into the hearing after the close of the record, it is submitted, should be granted only under the most extraordinary circumstances in which it can be palpably demonstrated, under the same standard by which a Licensing Board takes up a generic safety issue sua sponte, that the NRC Staff has itself failed to take the issue "into account in a manner that is at least plausible and that, if proven to be of substance, would be adequate to justify operation."

Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2) , ALAB-491, 8 NRC 245, 248 n.7 (1978). If- "the Staff has provided an at least 1

_7_1,/ Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), Docket No. 50-289 (Restart)

(February 3, 1982) (slip op. at 5).

-~. .

~ *

reasonable foundation for its several conclusions," Northern States Power Company (Monticello Nuclear Generating Plant, Unit 1), ALAB-620, 12 NRC 574, 577 (1980), then the Licensing Board should decline to reopen the record on the proposed new issue.

Directly on point is a recent decision in the Summer proceeding 72/ in which an intervenor proposed .a new contention after the close of the record, based upon a Staff .

report critical of operating and emergency procedures at the facility. 73/ The Board noted that, unlike the situation here, the new contention was based on new information brought to intervenor's attention only after the close of the hearing, and that the proposed contention was filed shortly thereafter. Even so, the Board held that intervenor had failed to show the significance of the allegations within the context of that particular proceeding at that late stage:

To be sure, each of the alleged i deficiencies with regard to Applicants' operating procedures contained in the

[NRC Staff] report would have' some significance to the safety of the plant if it actually exists and were to go uncorrected. But Intervenor has not alleged, nor do we see any support for such an allegation, that there is any l

l _7_2/ Summer, " Memorandum and Order" (April 28, 1982), supra.

i l

73/ Preliminarily, the Licensing Board ruled that the intervenor must satisfy the " stringent standards" for reopening a case in addition to the five-factor test set out in 10 C.F.R. S2.714 (a) (1) for late contentions.

Slip op, at 2-3.

l l

danger that the. alleged deficiencies will. go uncorrected. The affidavits ..

submitted by Staff and Applicants establish that the shortcomings to Applicants' operating procedures are being routinely handled by Staff, and Applicants have committed themselves to upgrade and correct the operating procedures in accordance with Staff's suggestions. In the face of this established procedure for identifying the deficiencies and correcting them, their mere existence loses its significance in the context of this operating license proceeding. Were the ,

Board to take this issue and determine that the alleged deficiencies actually exist, we could do no more than order that they be corrected and that the corrections be monitored by Staf f - a procedure that is already in effect without Board intervention.

If we were to reopen the record every time that Staff discovered a safety defect and reported it to us, we could never bring this proceeding to comple-tion. See ICC v Jersey City, 322 U.S.

503, 514 (1944). We see no correlative benefit for further delay here, since Board involvement is unnecessary to

~~

assure the public health and safety. H/

The Summer case is "on all fours" with the circum-stances at Zimmer. Board involvement here would also be redundant at best. The Staff has already exhaustively reviewed each of the issues addressed by MVPP as demonstrated in the comprehensive IE Report prepared by I&E Region III. Its Immediate Action Letter of April 8, 1981 proves that the Staff has already required the Applicants to andertake a Quality Confirmation Program to inplement all, 74/ Id. at 3-4 (emphasis added).

I necessary corrective action. Additionally, the NRC has closely monitored the implementation of all improvements in Applicants' Quality Assurance Program and has met with Applicants' representatives -at numerous conferences since the letter of April 8, 1981. The final and agreed -upon Quality Confirmation Program has been transmitted to I&E Region III N and NRC inspection reports since that time demonstrate the Applicants' careful attention to quality ,

assurance matters. Further, as noted earlier, in a letter originated by Region III from William J. Dircks, Executive Director for Operations, to Senator Walter D. Huddleston, dated January 27, 1982, the NRC stated' that it was

" satisfied that the quality confirmation program, monitored by the NRC, and other augmented NRC inspection activities will provide a full and adequate evaluation of Zimmer construction."E!

In view of the Staff's active, ongoing consideration of quality assurance at Zimmer, the matters now raised by MVPP cannot be considered truly significant, nor has it been '

shown that the Board's involvement would add anything to the Staff's activities or otherwise result in a change of the result in this proceeding. Accordingly, MVPP has failed to satisfy the legal requirements for reopening and its request should be denied.

M/ See IE Inspection Report 50-358/81-13, Exhibit 17.

H/ See page 4, supra.

,-..n.y .-m - , ,.7 m -,,._g ..e , _ . - , _ , _ - ,n_, - ., ,., _ --

.-

• _ 41 -

One further aspect of the Staff's review of quality assurance matters at Zimmer deserves serious consideration.

As the Board is aware, the IE Report upon which MVPP primarily relies resulted in the issuance of a Notice of Violation ("NOV") dated November 24, 1981 to Applicants.

While in their view many of the allegations were unsup-ported, Applicants elected not to raise legal objections or factual defenses to the NOV or to request a hearing and ,

submitted to the proposed penalty assessment.77/

Thus, Applicants stated:

Rather than dwell on our differences at this point we believe it is important that we be free to devote our full resources and attention toward the positive goal of completing the Wm. H.

Zimmer Nuclear Power Station in a quality manner.

In this letter, Applicants also recognized "the need . for improving the implementation of our Quality Assurance Program in several areas," and reviewed, as requested, the history of certain deficiencies, including "a statement of the steps taken to address and correct the underlying programmatic causal factors related to the noncompliance" as determined by the Office of Inspection and Enforcement. The letter concluded that "the corrective action stated in our response to the Immediate Action Letter of April 8, 1981 is

-77/ Letter from W.H. Dickhoner, President, The Cincinnati Gas & Electric Company, to Richard C. DeYoung, Director, Office of Inspection and Enforcement, NRC (February 26, 1982) (copy of complete response attached).

,.- ,- , +

sufficient to preclude further noncompliance, particularly in light of our Quality Confirmation Program."

Having foregone their opportunity to litigate those matters in a hearing, Commission policy strongly dictates that Applicants not be exposed to the same charges by.way of late contentions. Thus, in the Marble Hill proceeding, the Commission denied an intervenor's request for a hearing on an order by the Director of the Office of Inspection and .

Enforcement suspending construction at the site, where the licensee did not challenge the Director's order. 78/ The Commission determined that it could lawfully preclude litigation of the matters resolved by the licensee's consent to the Director's order and explained its rationale as follows:

We believe that public health and safety is better served by concentrating inspection and enforcement resources on actual field inspections and related scientific and engineering work, as opposed to conduct of legal proceedings.

This consideration calls for a policy that encourages licensees to consent to, rather than contest, enforcement actions. Such a policy would be thwarted if licensees which consented to enforcement actions were routinely subjected to formal proceedings possibly leading to more severe or different enforcement actions. Rather than consent and risk a hearing on whether more drastic relief was called for, ,

licensees would, to protect their own H/ Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438 (1980).

interests, call for a hearing on each enforcement order to ensure that the possibility of less severe action would also be considered. The end result would be a major diversion of agency resources from project inspections and engineering investigations to the conduct of hearings. H/

The Commission's lead should be followed by the Board in this case in refusing to require Applicants to adjudicate at a hearing precisely those issues which it has resolved without a hearing by consent to the Staff's enforcement action. The admission of the proferred contentions by the Board would result in the same evil perceived by 'the Commission in Marble Hill, i.e., the " major diversion of agency resources from project inspections and engineering investigations to the conduct of hearings."

IV. Each of the Proposed MVPP Contentions is Defective.

As noted, an intervenor which proposes to reopen the record for the litigation of late contentions bears a very heavy burden. Correspondingly, the Commission's rules under-10 C.F.R. S2.714(b), requiring that "the basis for each contention [ bel set forth with reasonable specificity," must at this very late juncture be strictly construed. The specificity of a proposed contention and the amount of detail supporting its basis which might have been acceptable when the proceeding had just commenced is therefore

! insufficient after the close of the record. In particular,

79) 11 NRC at 441-42 (emphasis added).

t

. - 44 _

fairness to the applicant and other parties in a licensing proceeding requires that late contentions proposed after the close of the record must be set forth in highly specific form and supported by documentary or testimonial evidence which convincingly demonstrates the existence of a genuinely significant health, safety or environmental issue. 80/

It 1

is surely not enough, as MVPP has done, simply to allude to earlier NRC Inspection and Enforcement reports that address quality deficiencies already addressed by the Staff and Applicants. Nor does it suffice to claim the existence of new information, but not produce even a single shred of new, hard evidence.

In this respect, the eight proposed contentions submitted by MVPP fall far short of what is promised in its motion. Thus, MVPP states at the outset of its motion that it has learned that "OIA and ' IE Reports revealed only a small portion of the QA breakdown and resulting hardware damage;" that "neither CG&E nor RIII have [ sic] followed through with adequate corrective action"; and that "the RIII-imposed Quality Confirmation Program may further exacerbate the previous QA breakdown. "81'/ Later, MVPP 80/ MVPP has had over five years to pursue discovery.

Surely, the Board could not countenance even further discovery at this late hour.

81/ MVPP Motion at 4.

l 4

L

C o .. .

• states: "New information obtained by MVPP evidences potential QA and hardware problems ranging far beyond those disclosed in the IE - Report and demonstrates the need for a 100-percent reinspection of all safety equipment installed on-site."8_2,/ Finally, MVPP asserts that it "has collected affidavits, received offers by other witnesses to testify, and received internal documents that the NRC in its multiple investigations shunned." b ,

Yet, no such materials or information are included in the exhibits proffered by MVPP in support of its motion, which are merely an assortment of old NRC memoranda and correspondence, newspaper clippings, congressional testimony and statements, and portions of the main IE Report. The only affidavit included in these materials addresses itself to physical security of new fuel at the plant site and other matters having nothing to-do with quality assurance.

Each of the proposed contentions is in a format which simply alleges that Applicants have failed to meet the requirements of 10 C.F.R. Part 50, Appendix B for a given Criterion. Such "conclusional . . . barren and unfocused" references are clearly impermissible contentions, 84/

82/ Id. at 14.

83/ Id. at 26, 8_4_/ Offshore Power Systems (Manufacturing License for

] Floating Nuclear Power Plants), LBP-77-48, 6 NRC 249, 4

250-51 (1977).

particularly at this eleventh hour. The Board and the parties may not be "left to wander aimlessly in . . .

speculation on the details of the allegations." 85/ Rather, the contention must "specify the particular features" of the requirement of the regulation at issue and "show the nexus 6f those features" 86/ to the Zimmer facility.

While MVPP purports to cure chis deficiency by giving examples of alleged problems, the attempt to be specific is ,

entirely illusory. Thus, the " affidavits," information from

" interviews tith current or former employees willing to testify," and " internal CG&E and KEI documents" to which the various proposed contentions alltde are nowhere to be 85/ Pennsylvania Power & Light Company (Susquehanna Steam Electric Station, Units 1 and 2), Docket Nos. 50-387 and 50-388, " Memorandum and Order on Pending Motions and Requests" (July 7, 1981) (slip op, at 4).

8_6,/ Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), LBP-81-18, 14 NRC 71, 75 (1981). The Board also stated:

The requirement of greater-specificity is necessary to provide a fair opportunity for other parties to learn precisely what the issues are, what proof, evidence or testimony is required to meet the issues, and what l the Intervenor intends to adduce for its

! allegations.

See also Arizona Public Service Company (Palo Verde Nuclear Generating Station, Units 1,2 and 3), Docket Nos. STN 50-528 OL, 50-529 OL and 50-530 OL,

" Memorandum and Order" (April lo, 1981) (slip op. at 6-9).

e ,.

.- - 47 found.87/ In light of the lateness of MVPP's filing and the 3

imminence of an Initial Decision by the Board, it would certainly be unfair to permit MVPP to supplement its motion by the s@ mission of any other materials to which Applicants would necessarily have to respond. Rather, the Board should decide the motion based upon the exhibits and arguments which have been submitted by MVPF and disregard the allusions to other information it may or may not file.

In sum, all that MVPP has done is to sift through the existing record and designate particular items which have already been identified by the Staff _ and Applicants for -

corrective action and addressed under the Quality Confirmation Program. Since these issues ara being thor-oughly examined under this Program and the means of their resolution has been determined by the Staff, there is in fact no litigable issue at this point.in the proceeding. b Each contention is merely an attempt to rehash matters which 87/ Proposed contentions 1, 2, 3, ,5 , 6 and 7 apparently rely exclusively upon IE Report 50-358/81-13.

Contentions 4 and 8 rely upon the various exhibits submitted with the motion, which, as noted, provide no specific insight, and certainly no new information, pertaining to MVPP's allegations.

88/ Some of the matters _ do not even purport to be based upon any "new" information. For example, proposed contention 4 seeks to challenge "the structure and

, premises of the QA program at Zimmer, rather than specific inspection hardware deficiencies." Obviously, l it is far too late in the day to litigate the adequacy l of quality assurance crocedures which have long since b en in use and never challenged.

l t ,

' ; .' ' , * -4g-already received full inquiry and scrutiny by the Staff, leaving nothing riew to litigate at this time. As noted above in the discussion of Summer, even if a hearing were held, its outcome would be to reach the same point at which the matter stands today. The only result would be a wholly unnecessary delay. These contentions should therefore be denied.

V. MVPP's Frivolous Request for A Protective Order Also Militates Against Reopening the Proceeding.

In addition to the previous discussion, there is another matter raised by MVPP's motion which goes to the sound exercise of the Board's discretion and militates against reopening. MVPP states that, if the record is reopened, it will seek a protective order so that it need not disclose the identity of its witnesses. While the Board need not, of course, address the substance of this indicated motion at this time, the mere fact that MVPP would even l suggest that its witnesses could be secreted and withheld 6

from Staff and Applicants for deposition and cross-

! examination at a hearing clearly reflects MVPP's real attitude: it is not interested in exploring significant i

health and safety matters, but only in denying Applicants

! duo process and strangling this proceeding by delay and i

! obfuscation.

Thus, MVPP proposes that the identity of these employees "be kept confidential from all except the

. j ,. o , . .

Board." E The kind of " Star Chamber" proceeding suggested by MVPP is anathema to American jurisprudence, and is certainly not authorized for NRC proceedings.

The decisions of the Licensing Board are clear on this point. MVPP's attempt to secrete its witnesses can only be interpreted as an attempt to prejudice Applicants unf airly and delay the proceedings. Applicants have a right to confront their accusers and to examine and cross-examine ,

such individuals in order to meet any allegations. As the Supreme Court held in Jenkins v. McKeithen, 395 U.S. 411 (1969), "the right to confront and cross-examine witnesses is a fundamental aspect of procedural due process."SI While protective orders in NRC licensing cases have prohibited the disclosure of certain identities beyond the Board and the parties, it would be inconceivable to deny an applicant this information or its right to examine and cross-examine the witnesses.E! As the Appeal Board recently observed in South Texas, a party must have the informer's identity where " relevant and helpful to the 89/ MVPP Motion at 28.

-90/ 395 U.S. at 428. See also Fitzgerald v. Hampton, 467 F.2d 755 (D.C. Cir. 1972).

9J/ See Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1) , ALAB-535, 9 NRC 377, 400 (1979); Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2) , Docket No. 50-341,

" Memorandum and Order Ruling on Discovery and Scheduling Motions" (February 15, 1980).

• j .* ' . ' '

defense of an accused, or is essential to a fair determination of a cause." NI MVPP's attempt to deprive Applicants and Staff of this basic right additionally demonstrates why the Board should exercise its discretion against reopening this proceeding.

Conclusion For the reasons discussed more fully above, MVPP has i

wholly failed to demonstrate the existence of a significant health or safety issue which would justify reopening the record in this proceeding, nor has it shown that the liti-gation of any issue it has proffered would result in dif-ferent findings by this Board. The motion is indisputably out of time and is a patent attempt to reargue matters previously resolved by the Staff and Applicants for the sole purpose of securing delay in the licensing of the Zimmer Station. No " good cause" for MVPP's untimeliness has been shown, nor has MVPP otherwise shovn any particular knowledge or expertise in quality assurance matters so as to justify the diversion of resources from the licensing efforts of the Staff and Applicants at this critical stage.

i

, M/ Houston Lighting & Power Company (South Texas Project, Units 1 and 2), 13 NRC 469, 473-74, (1981) citing Roviaro v. United States, 353 U.S. 53, 60-61 (1957)

(emphasis added). The Board specifically noted that the Applicant, not the intervenor, was "the accused."

The Board also noted that the " informer's privilege,"

contrary to MVPP's claim, is the Government's privilege to assert, not that of a private organization. Id. at 473.

l l

l l

l

. _ . . _ . _ __ _ _. _ . __ _ . _ - -~

f.' ' . * *

}t o.

j The Board should also consider the adverse impact that reopening the hearing and consequent delay would have upon the public interest. The public hearing proceedings on the

issuance of an operating license for Zimmer have been i

pending since 1975. In those seven years, many contentions l have been litigated and many opportunities for the granting of additional contentions have been entertained by the l Board. Now, however, the record has been closed. If it -

were to be reopened, Zimmer could not supply electric power to Applicant;' consumers. Accordingly, the lower cost of nuclear power would be denied to the public. As noted above, "[1]itigation has to end sometime."EI The motion should therefore be denied in all respects.

A Respectfully submitted, CONNER & WETTERHAHN, P.C.

Troy

c. Conner, Jr.

~ ,-

ne_

Mark J. Wetterhahn Robert M. Rader i Counsel for the Applicants Of Counsel:

William J. Moran Jerome A. Vennemann 139 E. Fourth Street l Cincinnati, Ohio 45201 l

June 2, 1982 g/ Perry, supra, 6 NRC at 750.

i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

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

)

(Wm. H. Zimmer Nuclear Power )

Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Answer to Motion by r,'ami Valley Power Project for Leave to File New Contentions" 3ated June 2, 1982 have been served upon the following by deposit in the United States mail this 2nd day of June, 1982:

Judge John H. Frye, III Chairman, Atomic Safety 1 Chairman, Atomic Safety and and Licensing Board

! Licensing Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Frank F. Hooper Charles A. Barth, Esq.

Camp Filbert Roth Counsel for the NRC Staff 276 University Road Office of the Executive Iron River, Michigan 49935 Legal Director U.S. Nuclear Regulatory Dr. M. Stanley Livingston Commission Administrative Judge Washington, D.C. 20555 1005 Calle Largo Sante Fe, New Mexico 87501 Docketing and Service Branch l Dr. Lawrence R. Quarles Office of the Secretary l Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission l Washington, D.C. 20555 Chairman, Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i.

J2 ."' . , .-

Deborah Faber Webb, Esq. David K. Martin, Esq.

7967 Alexandria Pike Assistant Attorney General Alexandria, Kentucky 41001 Acting Director Division of Andrew B. Dennison, Esq. Environmental Law Attorney at Law 200 Main Office of Attorney General Street Batavia, Ohio 45103 209 St. Clair Street Frankfort, Kentucky 40601 Lynne Bernabei, Esq.

Government Accountability George E. Pattison, Esq.

Project /IPS Prosecuting Attorney of 1901 Q Street, N.W. Clermont County, Ohio Washington, D.C. 20009 462 Main Street Batavia, Ohio 45103-John D. Woliver, Esq.

Clermont County William J. Moran, Esq.

• Community Council General Counsel Box 181 The Cincinnati Gas &

Batavia, Ohio 45103 Electric Company P.O. Box 960 George Jett, Esq. Cincinnati, Ohio 45201 General Counsel Federal Emergency Management Agency 500 C Street, S.W.

Washington, D.C. 20742 Brian Cassidy, Esq.

Regional Counsel Federal Emergency Management Agency Region I John W. McCormick POCH Boston, MA 02109

!dt . /

Robert M. Rader

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e that wiring. . reph c NR C: ". . . and that piping over ene re, fix it!

it, you heard :ne, aj of it. Next we'll pa'y a ltti viSiL to the suppre s siort pool. Ippplegate had a lot toe,say about that. . . "

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Constructtoa expenditures g,,,,,,,,5,,,,,,,,,g,,,,,,,,,,,,,

for 1950 are expected to be E.us send sranon in tute. Late to nor: .us

$233 million. Over the next five wrmirrone. itarr, jfoi,aaf. /r. waiiam u.

Years {1950-19&t) construction Dickhonar Dona!J 1. Lowev. James R expenditures are expected to Hnng, and Earl A. Borgm:nn.

total 51.211 million primarily for q~- -

e ., - .y-ele.:tric generating and trans-I:p 1 ETyg &~ -

s mission facilities (5379 million). -

M .-

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y An estimated $87 million will be

• q,.r/N. --_

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year in the scheduled commercial  %-

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m. ~N:a. h'~l estimates also reflect a proposed '.hT W f W~ ], # 'p '

change in ownership of the East Bend and Killen Generating c.-

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Stations, both of which are under '

construction. Under the pro- {- g"J ,;, . J posed change. CG&E would own fp;.; l , g

'(i.: pe 69?. of East Bend Station and 337. of Killen Station as opposed l t,

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to its present 51*'. share of each

. P! t ',u ,,,

Station. The two Stations will be p 7 A. i p communty owned by CG&E and >

.1 /' N , / ,

The Dayton Power and Light

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(*..mg .my (I)l'I.p. wah C(i&li re-sponsible for the construction Q;L., 'T+ ,;y g'.

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I 1

i Summary of P!anned Future Generation Estirnated C.ne in l Approsimate Ownvd l'J Scheduled CG&E Ener:ty Total Kw CG&E yy., , g p;;;;;.

Plant or Unis ta) Source 1.ocation Capability _?,, Kw Operation of Dollars)

Wm. H. Zimmer Nuclear 25 miles upstream 792.000 40 316.SCO 1931 5 332 l Nuclear Power from Cincinnati on l Station (Unit 1) Ohio River East Bend Coal In Kentucky.40 miles 6CO.CCO 69 414.000 1981 Generating Station downstream from 600.000 69 414.000 1935 571 1 (Units I and 2)(b) Cincinnati on Ohio River Killen Ge serating Coal 80 miles upstream 600.C00 33 193.0C0 1982, Station from Cincinnati on 600.000 33 g

193.000 1935 <

i l

(Units I and 2) (b) Ohio River 3 Totals. . . ... 3.192.CCO 1.540.SCO 51.2C0 ,'

l On A!! unas will be commonly owned by CG&E ar.J The Dayton Power ar d Light Company (DPL). excert Zirnmer Unit 1 w h:6h wdi be owned by CG4 E. CoNmbus and Southern O!no Electne Company, and DPL. CPL is responsbie tur constru,; tion and operauon et L;:en Simon. CC1E a resporuible for cons:ruction and operation of all other umis.

l

! (b Ref'eets a propowd change in uwtiership of the East liend aitd Ki!!en Generating St.itium bee "Constnietion"). j 1 I

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, . ~ - . _ ___

l abo -tion is a viable last rasart.

9 A . A L f.) W T . we balieve abortion will eni7 l r

Julyr19E*. becort unnecesca:"/ when we=en are

~

tr.:13 free--frc: ecenc ic carriasos.

frc: dependency. from acting n3 Ocar Editori the :srvants(i . *. .aapice worhers)

Concern for future children of cur society.

cotivate cose people to cppoca He are = cabers of the ant,.-

abortien. Concem for future gener. nuclear :ovement who beliove it 10 ations al:o nativates ::ny people a wonan's right to deter =ino wnat to oppose nuclear power. Julie Lcesch happ:ns to her tody. It angers us ic cppoced to both n'cor-lon and *that, blinded by the it.aginary e

I nuclear power and, in cn'atic=pt to t chil.tren. "Prolifers for f.ur'ival" linh tne two i:: cues. has bexun an i would cacrifice wor.en's freedom in org:nization of so-called " pro- I the nass of oppocition to nuclear liters for Survival". We say so-

• power. While we are dubicu:1y called because the organitations grateful f or Y.s. Loesch's anti-nane is a ec plete nicncmers whilo  !

nuclos; sentiments (Could th'.3 be en all anti-nuhers have clearly chosen i' atta:pt te rplit a otrong and unified LIFE. not all of us are anti-abortien. .

anti-nuclea.e =ovement down a vor/

emotional ciedle?) we have notning

}

Far from it. .

j Speaking in Cincinnati laat

- el=e in ec:::en with any gretp that week. N=. Loesch c:piained that three erocn the right,,to years e.go a wc an ached her why she denito any centrol hi s p/hgr own life.

didn't care about tha unborn if :he i I

was so concerned about radiaticn. Yours for a nuelcar-free

" Af terall. " Loecch centinued.

• cadia- .

futur8 tion affects the u: Corn soct severely, Ever/ year nuclear power t.nd wea;,cna t 5ts vo Schu=nchor cxist. our radiution debt to fu naro {*

y.w jorie Coldun generation: grows." The "conflic*" E nael Sumhas che thought che saw between abortion i Ba;*b Wolf

• and the ravagon of radiation had ,

to be resolved: so. che decided that anti-nuclear and anti-abortien h3[Kttfp WD /, /

people nro working for thi. canc ondct )

I - b,h In takir.g tat rather n=ating '[ .

connection. Ms. Loesch forguts to N;c:.T.7 I tar.e a few thincs into account. She '

'.wuMA.NPOWER forgetc tha abortion in a relntively yM .Q provate und individuni act freely chosen for rencon: of health and nani ty, while nuclear power is a UP o f, G3E N G hmr_at A e.L._u r y t' .b-'

iu corp 3rato atrocity foisted upon us for profit. To cay '.ho two are the en=e is like cc= paring Ann Frank to During ta s next round of Nucicar Adolph Kiticr. Anycne who think; Regulatorf Cc==iscien's (NRC) 11C-women censidering abortien uen't ensing learings for the Zi=:mor Nu-caro about the children they nignt cloor Pc var Plant, my citi:on vill bear is cownright foolish. p roi.at,1y be able to question C.c &E. of Acco-dc ficialn fooli:n enou.!;h to think Jecco }icl:a ccm.erning the pcver station.

cares more. ing to 1.ttomey Ji= Foldr.an of M1ar.:.

We find it cad that har c pathetic Valley luver Project, intervunor group0 ccncern for unborn children blinda y.s. representing CAaR , citasans c u cro:

Loesch to the neede and rights of wo=en. We are surpriced she cannot c:mine utilitics officials vbo vill be under oath. Feld an stated that make the connection be*: ween the this pr;eedere vould be a " direct = d' powere that favor nuclear enorg-j active ray" for citizen: to obtain inc a9d the powere that maintain the f or:Lation concerning the plant.

cc:ic: rampant in our society. It is the sa e administration. senators, other cententiens have been board by and grab bag of right wingo; who the various inte.ening grcups and would deny women freedo:s in their now the NaC permits individual citi-reproduct.ve liveu. 10 it any wcnder mens to pose questions. A ".to rne y that the saco men who give us nuclear Feldman cusgocted that CAaRI =ceders, power whether we want it or not. and fricada hoic. 41:cus:acas conce=1 also want to force a wenan who has possible i sues that should * "-as boon raped to give tir:5? Without reprcductive right: for wo=en, we bef ore C..O.LI. of ficial:. Those in-all--sen :and m:.::n ali'te-- live in torestod should contact hi= at 621-5151. The date !cr the ne.mt set of bcndMe to the church, the stato. hearings has not yet been announced and/or Jerry Falwell and his by the NRC, but ccncerned citizens repreenive morality. Ao icnc na who wich to participato in the crosse womon arv pushed econc.ically and examination process should preparc socially into pregnancy and children in advanca.

are not born free frc: deprivation,

a- ., p- u - x,. y .~-~ a -

j M- '

~ . -y r - .,m.,__ ,,.r - .w---- -_ . . _ _ _--- ?

Ky. Sierra Club Sen. Glenn Re-Urges Shutdown sponds to CaARE The Xentuck y Sierra Club voted en a As a result of a letter C AaRE sent to stand arainct the Zi=or nuclear eta- Senator John Glenn's Office in April, tien which calls for the suspension of Glenn has given seme hopeful signs cen-the constructicn per=it. On May 23, cerning the proble=s at the Zi=er Nu-the Kentucky Chapter decided to send clear Statien.

copies of the Gove ==ent Accountability Project (CAP) request to the NRC to In April, Glenn re:eived a letter from suspend Zi=er's ccnstruction to the a us urging action by the Congressional Kentucky Governer, the Attorney Gen. l Sub-Cc sittee en the charges ledged by eral and the Kentucky Cc==ittee en  ; Tem Applegate, a private detective who Nuclear !ssues urging these represent-  ! worked at Zin=er last year.

atives to take a stand against Zi=er. ,

Glenn's respense fell short of proc

i-Ken;;ucky has traditionally been anti-  ;

sing an investigation, but he did state I

nuclear, voicing it's concerns in the that he had the details of Applegate 's licensing hearings at Zi=er and pre- allegations, and that he was in con-cipitating action at Marble Hill nu- l tact with Chair:an Hendrie of the Nu-clear plant in Indiana, on Kentucky's ' clear Regulatcry Cc=issien which has border. The Sierra Club action could l conducted an investigation of Zi=er, effectively galvanice oppositien in l the results of which are due seen. Glenn the Kentucky Legislature to take a t also terred the allegations raised by streng stand acainst the Zim er statien. Applegate "& ave and if true could re-sult in a serious threat to the public

-Tem Carpenter health and safety".

w  ; Clenn alno made it cicar that the Atom-d ic Safety Licensing Scard, the body re-

-( spensible fer licensing nuclear plants, U3 CALHOUN 751-0345 would have access to tne NRC investiga-g' A R E *iens findings and fac ecrs them into it's deliberatiens when censidering Zim-y l

{ =er's license.

Depending upon the cutcome of the NRC report. Senator Glenn could be an in-portant figure concerning Applegate's I

allegations and the future of Zi=er.

j O h Glenn holds a positien en the Govern-E v E ment Sub-Committee on Energy, Nuclear

( b

' Proliferation & Government Processes.

and has the power to open hearings en

&, CASH PAID FOR USED RECORDS s the 21=*= =="*Lon- ^= this Auncture.

1p^ he is understandably reluctant to make 9 such a =cve.

Cont. On p.3 hT--- 2 -~ -

G E E E E E t3 E E 1ZHlU E E E E E E E E E E E E E E E !El u E E E E E E E E E G O SENEFIT FOR CAaRE y %

9 A aU6l?a Kl: :G * #

Cd2 ggg Music & HUMOUR u

'NY -

CALHOUN ST. CLUB $2 FOR LOW INCOME PEOPLE m azens Ag inn R di cave Enwennie 7/21 TUES- Q - C 2ess airten Avenue cincinnaa. chio 45 o Dtrs a in F0: 861-3533

l. O

-..w..u.s.c_,&. .___._2.- . ,.,..

N w .. ,1 ,

r Glenn

/ You can help by naking it easier for Iverythira ve do see .s to ecst r.cney. 0Aa22 Clenn to open an investigation. Take spent c1cse to MCO on :L- .er lice .:1.c inter-a few minutes to write a letter urging entien ' "-~5 'or R1;h Istes, a . e:Gert wit-Clonn *o open such an investip* Lon. ne:: es te:tified en dr.ce ci::le-1 r * - ' -

If you are interec*ed in working en *his ;17 repair our ni .eccr ;h .a:'dne :::t *.IM.

project, centac* CAaRE at 361-3533 A thou. sand peice - g cests O!30. A teeth j at the up-c:mira Carthage Tair cost IIOC, 0250

-T CT 8 I f of v'dch v:s 12e in :~a7 GI'IATCR J0h l GI.E!!?!

Ad'.ing all t:13 up, cAe2 neeis ever 19C': per - l hir.st 2 510 n nth to si.;17 Pretics at our cu. rent level cf activity. 5:nc reney tri:kles in fic: the A _

Solar !ict *i.- cr 01:5, cur s . stainer organi:sti:n where nenbers centribute *5 per ncn*.h. Ec 1*-

ever, even if all of these :rc.bers paid reg-ularly, that only equals about $50 per n nth.

Financine 6 CAaRE CAa?Z is having to fa:o the unha ., re 11t7 of .

either sericusly cr* ** 3 cr ac*.1-rities, er cf devisir; a e:::essfal Omd-raisi 4 strateg7 d, ev does CAf.I pond it's ncney? *here a does it that vill help us r.aku it through the ncnths all go? 'Mrs is a brief ra .-des-. of cu e: gen:ce ahead.

=0 that 70tt ca.n see why CAS.I has to constant 2;-

rai:e nonef to conti:rao our struefle. n1 1,to.. , ::r; er'icas, c-iticir:- c- ecennts e.re velecne.' If 7:n would 2.ike to t.ccene in-02r biCCost crrc .0c b7 far 1: the newly created volved in re:nivrrc cur car e .t d.U c- .:, ploace cr.11.

staff position. The OAa?I staf 4 erson is paid i!!O per week to work at les:t LO hours per weck.

The staff persen ecordinates actvities, a .: sers +

rail, runs tha office, schedules tables, speak-ers and routine offi:e activities, is resp:nsi- e p asses f autg s ble fc- fu .draisir4 such as naili .gs, events and 5 -

) fn" a f a nentership d:es and up-dati 4 and distributi 4 in.for .stien.

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(t25 5,one officebills ,

natura//y the bes bread ,I supplies (%C) a .d er .cathly nevsletter (**y0).

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newsletter li:t continue:17 expands, nearir4 l h Ej hiC her TrintinC nnd n-daq cost. C'r Icvc1 of activity deter .1.e: Thenc b4"

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3923 MONTGOMERY RD.. NORWOOD. OHIO 45212 e

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Help Us Stop Zimmer! Pledge Only 20' A Day. g J-

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/ ZIMMER LICENSE what the Zt=mer ucenstne hearugs have proven,

/ (smto "A') DENIED *8 * " ' ' ' ' ' ' * ** * @ * ' ' " " ""***'"*' ****

Zimmer's control rocs are incapable of perform-The ! mage of the Nuclear Regulatory Commission ag their function of stopping the fission react.on, as unbiased regulator of a technology that brings that the cable trays at the plant are overloaded.

us Three Mile Islands suffered a severe tarnish- welded by incompetent or uncertified welders, and ing recently when Charles 3arth, NRC attorney incapable of performing their function; that fire in th:s Zimmer licensing scam. labeled the con- insulation material being used to protect the castes tentions raised by intervenors in the hearings is inadequate and a possible fire hazard; and that "wo rthle s s". CCLE, builder of Zimmer, is incapable and unoual-ifled to operate the plant because of escalating costs.

Tho Miami Valley Power Project, a subsidiary of CAaRE, has always recognized that the NRC was Why this information wasn't reported in the main-more of a promoter of Zimmer than a regulator, stream media shows very clearly the power of especially when it comes to the licensing hearings. CCLE to distort facts to soit their needs, and the Dut for the NRC staff to whole-heartedly endorse gullibility, if not criminality, of the media in bring.

Zimmer before all contentions are heard, before 6ng the facts before tne public.

the Applegate Investigation is completed, simply reveals the eagerness of the NRC to license with. Hopefully, none of us will ever see the day when that out regard for safety. In other words, its business billion dollar pandoras box is allowed to open. It as usual, and the lesson from ~hree Mlle Island is is up to area residents, our representatives and that the lesson was not learned. CofTmunity or;tanizations to insure that Cincinnati is protected from the hazards of a particularly un-safe Zimmer nuke. Must we find do: ens more wor-kers to tell us how badly 2immer is built? Must we wipe out a city to prove that nuclear power is unvia-j 3 ble?

t I . Tom Carpenter 7

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, ene year =e=bership which entitles =e to the

=enthly newsletter and all CAaRE =ailings.

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() I want to subscribe to the CAaRE newsletter enly. n

.nclosed is 35 for a ene year subscriptien. n E>

() I want to be a CAaRE eustainer. I pledge $5 a '

20

=enth to sustain CAaRE, which gives me full k Z6 benefits of a membership, plus me=bership in the -$6>

Solar Not Zi==er Club. n

() I can afferd is not =cre toinensure acceptable that cur city. nuclear Inclosed 5sower U

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Cincinn'ti Alliance $f#2 8 (0gJ Respen de Enerity, Inc.

2609 Clifton Avenue Cincinnati, Ohio 65220

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Ajo1 Idilan & 17.arjorie Busching 1032 Valley Lane Cincinnati, Chio 45229 CincinnLti G s & Electric Company John Yeager/ Chairman of the Board

'th 4. Main St.

Cincinna ti. . Ohio 45202

Dear R:

. Chairman, .

'cle are shareholdere of CG&E and are presently concerned " tith con our company's CARE, Inc., arepolicies concerning(one)servation the ovmers of 1 share of and CG&E the comnonZimT.er stock, plant.and are fil:.ng the attached resolution with I; irs. Y.arjorie Busching who is t.ie owner 'of 200 (two hundred) shares of common stock.n-=Wuh b==* @ =+ c d & & x EM D C & d i M & . i E.~ ~ 2 = : W W W T M . % L s h _

• !e hereby notify you of our intention to present the attached proponal for consideration and action by the stockholders at the next annual meeting, and we hereby submit it for inclusion in the proxy statement in accordance wi:h Rule 14a-8 of the General Rules and Regulations of the Security and Exchange Act of 1934, as atended.

If you should, for any reason, desire to oppose the adaption o!' this proposal by the stockholders, please be good enough to include in the corporation's proxy material the attached stater.ent of security holders submitted in support of the proposal as required by the aforesaid rules and regulations.

Sincerely,

,1 y, _

CNl Son Carper.cer/Chaircan An N Cincinnati Alliance for nespons a.o, e c.nergy, Inc.

[ ar a. orie s,uscang 3 .

CC: Securities & Exchan.Te Corr.ission

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'!as!'ington

D .C . 205 9 ,

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, n Cinci: ti Alliance for

, , Re:ponsible Energy -

26.99 Clifton Avenue Cincinnati, Ohio h5220 December .a, iv n.

1 901 (513) 661-3333 Milan & F.arjorie Eusching 1032 Valley Lane Cincinnati, Ohio b3229 4

SEAREHOLDER R230LUTIC.?

lEEREAS:

-Me support energy technologies which do not endanger human health and safety or impose unacceptable financial burdens,

-Increasingly, utilities have initiated programs c.ggres-ively promoting investments in energy conservation and alternative .

energy sources;

-The Three Inle Island accident heightened public awareness of the dangers associated with nuclear energy, including controversy about safe, legal limits .cn1 radiation emissions; unsafe methods of radioactive waste disposal; and inadequate government and utility preparedness for the consequences of nuclear accidents;

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-In November, 1981, the Ijuelear Regulatory Commission penal-ized Cincinnati Gas & Electric .3200,000 for "sericus quality assu-rance breakdowns with broad repercussions" at the Zimmer nuclear reactor after an NRC reinvestigation found 40 non-compliances with nuclear safety regulations. In addition to this fine, the. largest in history for a reactor under construction,. the NRC ordered a 1005 quality confirmation program that "by itself , without f actor-ing in any re-work...will be both costly and time consuming".

1

-The City of Cincinnati's Environmental Advisory Council j'

has recommended an independent quality assurance review and the suspension of Zimmer's construction permit out of concern for CG&E's poor quality control record; s,.,r..z.

. ,tt n, a o., .: .

-CGaE testified before the Atomic & Safety Licensing Board that Zimmer will produce only 2-7% of the company's electricity when complete; .

TEEREORE BE IT RESOLVED TEAT THE SHAREECLDENS REO.UEST THE 3 CARD OF DIRECTOR 3:

(1) Tahe urgent steps to develop conservation and alternative energy prorrama to meet denand for electricity, and send a report on such programs to shareholders by September 1982;

3, 2

F

'(2) Co:c:.sission en independent study of Zim .er's potential ad7pr.-

a tion to coal; including estimates of long-term and possible con tingency cocts and health ccnsecuencas of nuolaar and coal use, and summarine this study in t!ic above report, consistent with reasonable costs over-all.

SUPPORTING STATEI.EI!T Flans to build Zimmer II nuclear reactor ";cre wisely abandoned due to uncertainty about the cost of fuel, decommissioning of the reactor, waste management and compliance with Federal regulations, i!e submitbe that the lenger term costs of cperating Zimmer I would likewise prohibitive for these and additional reasons rs12 ting '

to c,uality control problems identified by the IIRC.

Given the history of problems at Zimmer, cost increases seem inevitable.

The currec.t NRC investigation is not yet ccmplete and In our is to cover numerous allegations of construction defects.

view, CG&E's financial health could improve if it converted Zi:ener to coal, a technolo. y5 our company has had far more experience erith.

The health of the people of Cincinnati A growing isnumber also aofmatter studies cur show company should take into account. including in-that the health risk of low and high level radiation, is substantial. 1e believe creased rates ofneeds futura energy cancercan andbeleukemia,through net concervation and alterna-tive sources, rather than costly and enormously complicated nuclear power plants. '.le urge support f or this resolution ac sound e thical and financial policy.

Respectfully Submitted,

_e W /GO Tom Carpenter Chairman of Cincinnati Alliance for Responsible Energy

.i , ,

Marjorie Eusching 1 *

., ,r n vg "<,+ .

CC: Securities & Exchange Commission /,/ w,3 mm.

Division of Corporate Finance f Sco I:. Capitol st.

'Jachington D.C. 20549

..t Cir 'nnati Allianco for ReE.snsiblo Energy ,

2699 Clifton Ave Cincinnati, Chio 45220 (513) 861-3533 December 19, 1981 Milan & I.:arjorie Eusching 1032 Valley Lane Cincinnati Gas & Electric Comp 1ny CincinnaH . n5;n Ecoco 1, -

Chairman John Yeager "" " '

ii.* 90YED 4th a Main Street a). nan 3 1 Cincinnati, Chio 45202 ,

i DEC 21 IHI ^ j' i

De ar :.*r . Chair an , l n u.

4 m t We are shareholders of CG&E and are concerned ai._atumm is_ _ _ ~ . . _ _ _ _ . . . i NRC findings at the Zimmer nuclear station, and particularly the role CGL3 management played that led to the $200,000 fine, in addition to the 100% Quality Confirmation progran.

CARE, Inc.,

are the owners of 1 (one) share of GG&E common stock. and are filing the attached resolution with Mrs. &:arjorie Busching who is the own-er of 200 shares of con.non stock. We will produce verification of our ownership at your request.

';le hereby notify you of our intention to present the attached proposal for consideration and action by the stockholders at the next annual meeting, and we hereby submit it for inclusion in the proxy statement in accordance with Rule 14a-8 of the General Rules and Reg-Blations of the Security and Exchange Act of 1934, as amended.

If you should, for any reason, desire to oppose the adoption of this proposal by the stockholders, please include in the corpora-tion's proxy material the attached statement of security holders submitted in support of the proposal as required by the aforesaid rules and regulations.

Sincerely,

[ m we

/

Tom Carpenter Cincinnati Alliar.ce for Responsible Energy Mar '

-j']h'or,ie Busching CC: Securities & Exchange Commission / On2 - w 'd.mh '"- '

500 n. Capitol Street (

Washington D.C. 205h9 '

. .m C inc i. ti Alliance for c

esponsible Enercy 2699 Clifton Avenue C incinna t i, Ohio 45220 ne c e ...b m _. 19.

,o,g, Eilan & Earjorie Euschinf 1 032 ,m,_iley Lane Cincinnati, Chio 45229

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-A November, 1981 Nuclear Rerulatory Cornission report en Zimmer found improper voiding and alterations of quality assurance non-compliance reports on a widespread basis;

-The investigation uncovered harassment of cuality contral ~

inspectors and dismissal threats for checking components too tho-rouchly, including examples of dousing inspectors with water .

-Congress recently added criminal liability to the Atomic Energy Act for " precisely the sort of actions th2: occured at the Zirmer site";

Covernment investigators have not yet determined criminal liability of relevant management efficials for the above misconduct.

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-A February 1981 NRC survey found more lecal non-cocpliances at Zimmer than any other Region III plant under construction:

-A March 1981 letter frc the Commission to the utility warned that " additional (quality assurance ) violations . . .which demonstrate ineffective management...will likely lead to escalated enforcement"

-A November 1981 Co==ission report cited forty new items of leral non-compliances at Zimmer, almost double the number un-covered.in the past two years. Simultaneously, the Connission Rerional Director called Zimmer's quality assurance program "to-tally out of control". He ec.ually blamed the utility and construct-ion firm. The Co==ission proposed a .t200,000 fine, the largest for a plant under construction;

- he NRC investigation led to a quality confir:Etion prorran that "by itself, without factorin- in any re-work...will be both costly and time consuming:

-The NRC chairman recently called Zimmer cne of the five plants under construction nationally with "ma j or problems " .

t

7 .a.. , o. . -

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TFEREFORE BE IT RESOLVED EAT THE SHAREHOLDERS REQUEST THE 30ARD OF DIRECTORS:

. authorize a review panel of distinguished tenbers of the cc =un-ity, wholly independent and free from conflicts of interest with the utility, to investigate utility management responsibility for the above issues; and request Cincinnati's City I.:anager to select the members with the advice and consent of the City Council after public input and comment.

Respectfully Submitted, Tom Carpenter / Chair:an

• Cincinnati Alliance for Responsible Energy

% C+4 Marjorie Busching

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CC: Securities 2: Exchange Commission 500 N. Capitol Street Washington D.C. 20549 l

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The courts and the Securities & Exchange Commission have recognized that mismanagement, civil and criminal illegalities are of material concern to shareholders. In light of recent' developments, the scope, causes and corrective action relevant to these revelations haven't been adequately disclosed in reports

.o .,ne n n u u a. : .v.

The 19ci government findings at Zimmer have serious public health and s2f ety implications. A Ccngressional co::ittee ob- ,

served, "the public health can be endangered by nuclear crimes just as surely as it can by street crimes". These findings have lowered CG&E's standing in the con: unity, evidenced by a recent vote of Cincinnati's Environmental Advisory Council to recommend suspension of Zimmer's construction permit and an independent quality assurance review.

The development could threaten the shareholders' interest. The necessity for costly repairs and delay means major unanticipated expenses, and prevents prudent investment decisions.

The utility failed to disclose long-term investment risk that results from short-tern cost cutting. CG&E is charged with a 100% reinspection of safety components at Zirmer. There are un-7 resolved concerns that management officials responsible for cen-scious safety violations may be manipulating the re-testing program.

Unless those responsible for previous abuses n- are identified and l

removed frca Quality Confirmation, it will lack credibility. ,

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CLIPPING .

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9 but they neverbefore contentbn$ h&ve the bess forrt.41 lleensing 4

I f-eS CCuSerS bosn!, Carpenter said That, and new cridence he would 16ter de. -

s

'e.e.mtiry myneo nea=s Legal Action Possil>1e um n.--n-c, .

would postpone the athrtup of .

Zimmer fut 6t least Aw0 or th.ree BY BEN L. KAtFM.AN on Ttnesday, the Miamt valley months.Borgmanri as.td.

• Powet Project fuffitallF asked the E w meerfw. AIO"k 8'f*17 3' mensing 1.aad gy Ti1E crttles win their case,1t g* coul3 t,e yeus and yew Ctr.

< If critics use stolen documents to L* 'e0Nn ILCenbl4E hearine T"'

>' justify new hesrings on Zimmer citizen group, a recogntsco inter- penter tktd.

nuclear power stauca, Cinelnnau "Of I" th' Ut*U^1"E h'3"I'. Ogrpenter would not deny that

/. Ons k Dectric Co. will pursue 6160 maked De licensing tecid to some of the evisence brought to-t 5 criminal chartet utili offetals 1etP tD* identitles of *1MM54s him threatenedWttinhy.ty *We t'4Jtacwol his c411Murues rio insbee was stolen.

that they 4- from CULE.

-f " Vie vtu pursue them with all TD M C##PC N f*5PO ' N A IOf Tere L&tfn without permisaloa,"

i Our resources," promised EErl the citisens group sam this was to Ct.rgnter said, but he h&dn't

~7 BorFmann, unior vice prattdent prerent retratwti n by COLE and tsb1vbere some ofit came from.

of COL E H3Contf64 tor 5 A W .000Im'V*I4 Tne suthenticity of evidence used -

1 Ana CGLE will not s:t still for by CO&E this year luctuded a in the petition to the lictasing i new proceedings in which its MMy for suodg M not m- beard h certain,he added. '

P acettsers remain nameless, Pr'.al- TenW ment and Inum1* Eten if dence sure stoun.

! dent Wititant Dicthonet Added. damn of ins;4ctors at Zimmer. the greater harm

• of Ignoring j -we have & right to face our accu, Geadly faults at Zimmer wouic scru."

New contentions include mwe him to uw It,neman , ,'

j- UNIDEh'TIFIED ACCUSERS tharges of shoGdy wort, snept or Nost of the witnesses he offer ,

P- and susMet documents are part assurance,and of criminstly inadequate quality untitneu of CG&E (d to the board are former and ,

) a new challenge to sf.e vital oper- ofrelais to run h nuclear pwcr prty,ent workers at 2fmmer, and -

I sting been54 COLY, necos for the they becught the documents or .

l~ $1,3 billion facility :n ClerInons plantMany of those charges are old, copiesof coetitLentswiththem.

- County. . 1 4

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PLUyin M:1.::AfiU .

"l'uri ),1 cont.,ing; Challent.cu 're Zdt.4.;ce Filed Today" The Miavel Valloy Power Project (MVPP), a whoTJy owned subsidj-ary of the C$ncinnotj Alliance for Roeponciblo Ener;;y (CAJ:M) do culS-nitting eit,ht non contontionn to the 4LO Jiu !;:trety f, bicenci ng' Dcord

henr5 n;;c today (i;ay 10). Thu contentions revolvo around two Ica;jor -

incui:n: (1) cer5 0un quali ty c.r:.:ur mwe bronkdotma with brund repe-cunt:i chu at Z12.wur, and (2) tim lacl. of corporate charactoe and cotopetenco en Go part of the .b cont..uc nnd bujirier, Cit.cj nnati Ca0 f: }; Luc LM e Company (CCP<h) . ,

~

CA;Tr'. hoc retained the ti.aer. .r.ciat I.ccuuntabi).itJ Pro.!er !. (CA?)

in I'nchj ngton D.C. an lena: ::cu.icci for the henrintis, upon acct:pt.-

ance (.r t he I.SLTi jud::c:: of the ci.ht. cont:n;1onn. G/.P hat, previouc-t .

ly been involycd in the Z1:naer plont on reprununtative of Dutoct.ivo/.

Y/hd olloblunt.r Wm Apple;nte, 'c.Qoco n11cca tj unt, led to u lh: V O. >bor , 19P,1 OJ'OO,s*C3 f.'.99 -ac:. int:t CI:?,E for quality a.;uuranc.e cbucca a t %2 nscr .

CANS n i'.Ai have torace tocclher un t.Lc whi:.;tle bloninc, diu~closurun

, n t 31.i..:;m ::n bl:0 puut.. ((IAP repre mni,nlive 'tos: Dev.ine ucy i.c re::che 6 a t 202- L.'. '/904 ) .

TDc chago;; belpt; filed by !.VrP/CATC center ore ik ee bari plut-

, famc: (1) thai. the h'e;;1cn 313 bra.:ch of tbc iluc)ca:t Reculatory Co;:-

~

, :aien5 cn (t<l<C) revern.ed only c port $ on of the actual probj e.m t.t Mi.c-

, m@ .i n 1. heir : Ovcic.ber report.; (2) that, contrary to ;;overa:.ent and

.', u lj )1 L,y :4 tate:.tento, high-J oyc2 UGfd; renn ;caent $ c equarc'ly respc.n-J . nild e for diroetiac the.ppreviouc -

s qun.1J Ly annurouco pro;; rain, includ-I AW.;i in;; n:ci uunibility for idenLified a'uu:.:cc. 3

. { ) (S.W.,  ;( / of c

:t:c, and (3) that tho utility cnd Re- 1 l

j.

gigl.), J on j if ::ht; have failed to take adegonie

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.E.l,Figy,,,g ! curre.c

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adj onc t i vo of Jdoutlfieri problon s.

${jj (continued) .

q b. 4 l wum ._._ . f ,,. >,,. ,k.; . _ ,..

segg Encac q t G<: ,; s a W " il' D + t P M#

"Ylc dccided to cub,.si.t nc# contentionu uniy af ter it Docrone Ulcar that the !!11C ctaf f (in tho liccucing hearinUc) W40 not guing to calco thouc lucucc--a qJulity accuenuco prograu "Iolull// cut -

of corArol" nnd gravo doubt about cr:?,M'u characloc nud contputunce -

cither through Negion III tiricutigation or through the Atoc:1c Safe-ty b Licencin:' l'oned hearingu.

Witucunec vtanL to upcch out in in- .

creasing nunborog but Rogion III no longer uccmu intecocted. Un-der thouu ciccuaulancco, vie could no longer utand by in all good conccienco and viatch the liconcing prucoco ru::h to approvo' ~ZisScr."

~ Tom Dovine of CA'd .

caLsed '"fheco trora contenLionc are a mixture of uid and non inforantion invoctigation unti .

con:mun1. cation with Zi:cuce wovhceu.

~

llottever, thoco iccuou are all branel nun to 1.ho itcunning proccuu.

D is autracuouc that a plant that huu Luun fined onu of Utu Lar-gent fince on record for quu11ty accurance abuccu, which incluito .

iclony violationc ac yot unruno.tved, hau yet to bc cycn arldrenccd by the licencing board. Oc intend to reuedy that uliuntion" -

Toa Carpontar, CADS Staff.

The Aboule Safoty & Liconuind IIcard clouad the record in early March of 1982 af ter hoaring ovacuation planning lusucc. Under ASLC guidollr.cu, the record uny bo re-opened under ccctain circun~ ..

stancou.

cad 2 spokcuporcon Tua Carpentor holicycu that, the non conboulionc ;nec Lu thoce cuidolinos:

"Thic to non infor.uation bcforc tha licenaing board, and the appropiato ti,oo to hear thouo tocuan t o n ovi ,

i 1 before the plant is allowod to begin oporation."

The oight how contentionu aro cummarincd here:  :

(1) .

CG&S & Xaiuor (Ziu:.1or's contractor; KM) have fatiod to main -

tuin sufficient quality controls to oncure that the au-built ]

conetition of the pltutt refloctu the final vercion of a deuica

, that complion with utandardo ho protect public health F, cafety.

(P.)

CU&M ?< KM have ' failed to tuaintain adequate traccabiltty to '

{

identify and document the hiulory of all ::aterial, partu, coa- i ponento and ucido, an rcquired by law.

(3) CODE f< 1:aioor failcd to n.uintosn an udcqunto qua31ty ascur-

, anco prodram for vendor purchaucc, oc required by !!HC rog-u1at)onu. '

(4) CCL): & Kaiser have fai}cd to Innintoin an adequate qua'lity ausuranco prodram, to identify and corroct construction deficicacion.

, (S) CCLU L KEI .officiolo faj 3 cd to touin adcquato controla to prococo and $oupond to internal Hon-Conformance Roportn --

identifying violationc of interna) or governinent requiro- .

i DOnto. +

4 w...

.- (6) CUf<E & KEI have engaged in illocal retaliation againut Qual-  ;

, ity Control perconnel who atteript diligently to perform .

their dutics or who d.incluce ytusl:i ty uncurance 1erol.1 cmc to. .[

the URC.

f

('/) The CubH Quality Confirmation Program in inodoquate to i miticato or remedy the corioun conucyvenceu of QA break-  !

downs at Zimmer. . . . . .the QCP in fundamentally narrott in i

~

ccope and its impicmentation upotty. -[

, (6) CCDM 1acho neccccary ond competence to operato a nuclear -

l Pl ant l

The bacis for these contentions include the Noyc:rbor, 561

, NJtG Invectigation L Bnforcement Report, converr.ationo with Re-i; C i on III manacciacnt officials, affidavito from and intervicwu

,. with witucesos willing to tect1Iy; und additional docunentc.

"l'!o expect to be able to prove all of these contentionc  ;!

,; before the licencing board and, in offect, force tho government ,

regulatory agency to do itn job." -Tcu Carpontor, Cf. lim Staff.

1 l FOR CDP.tES OF Tim COUTENT]ON.9, 00:iPLurE WrH EXN4Pl.ES CON' FACT F CARE AT ($13) 861-3533, Tom Carpenter-or CAP at (202),66*/-7901. 3 f

.