ML20054F594

Response Supporting Miami Valley Power Project 820518 Motion for Admission of Eight Proposed New Contentions Re QA Activities During Const & Technical Competence of Util. Notice of Appearance & Certificate of Svc Encl

ML20054F594
Person / Time
Site:	Zimmer
Issue date:	06/11/1982
From:	Treby S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8206170139
Download: ML20054F594 (9)

Text

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c. Cattified By #& -r M Dsoy UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CIUCINNATI GAS AND ELECTRIC Docket No. 50-358 COMPANY, et al. ,

(Wm H. Zimmer Nuclear Power June 11,1982 ,

Station, Unit No. 1) )

NRC STAFF RESPONSE TO MIAMI VALLEY POWER PROJECT MOTION FOR LEAVE TO FILE CONTENTIONS I. INTRODUCTION On May 18, 1982, Miami Valley Power Project (MVPP) moved for admission of eight proposed new contentions relating to quality assurance activities during construction of the Zimmer plant and the technical competence of Cincinnati Gas and Electric Company (CG&E or Applicants)tooperateanuclearpowerplant.1/ The evidentiary record in this proceeding was closed on March 4, 1982. Tr at 7979. Therefore, MVPP's Motion seeks, in effect, to have the record reopened for the pur-pose of having admitted new issues in controversy among the parties to be decided by the Licensing Board. For the reasons set forth below, the Staff supports the Motion.

II. BACKGROUND The Commission docketed CG&E's application for an operating license for the Zimmer plant on September 10, 1975. Pursuant to Notice

-1/ "MVPP's Motion for Leave to File New Contentions" served May 18 1982 (Motion) at 5-21.

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r published in the Federal Register, (40 Fed. Reg. 43959), MVPP petitioned f

for leave to intervene and was admitted as an Intervenor in the proceeding.2_/ During the course of the proceeding, MVPP proposed and the Board admitted certain contentions dealing with cable trays (Contention 14) and control rods (Contentions 15 and 16) which contained a

limited aspects of quality assurance matters. However, neither MVPP nor any other Intervenor sought to directly raise as an issue in the proceeding the adequacy of the Applicants' quality assurance practices during construction of the Zininer plant.

The Commission's Region III Staff began an investigation into the Applicants' quality assurance program on January 12, 1981. On July 15, 1981, the Staff filed with the Licensing Board and parties a Board Notification (BN-81-14) which concerned an Immediate Action Letter from the Director of Region III to the Applicant dated April 8,1981 documenting the corrective measures to be taken with regard to the problems indentified by the Staff with the quality assurance practices of the Applicant and its general contractor, H. J. Kaiser Company. A second Board Notification (BN-81-52) was served on the Board and parties on December 17, 1981. As part of this Board Notification, the Staff l

l l 2_f " Order Granting Petitions for Intervention and Providing for i Hearing" dated March 19, 1976. Applicant argues that one ground

! for denying the Motion is that MVPP is no longer viable and the

! Motion is an attempt to improperly substitute a new party.

" Applicants' Answer to Motion by Miami Valley Power Project for Leave to File New Contentions" dated June 2, 1982 (Applicants' Answer) at 5-11. The Applicants, for the most part, rely for

, support of their argument on extra record statements and inferences l that the Applicants draw from such statements. The Staff does not I have facts regarding this allegation. In these circumstances the Board may well wish to develop more fully the facts regarding this allegation.

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enclosed a letter from Richard C. DeYoung, Director, Office of Inspection and Enforcement, to W. H. Dicthoner, President, CG&E, dated November 24, 1981, which summarized the Staff's investigation of the quality assurance program at Zimmer and had as an attachment a Notice of Violation and proposed imposition of civil penalties in the sum of e

$200,000.00. Also included as part of the Board Notification was Chairman Palladino's letter of November 16, 1981 to Congressman Udall discussing the August 7, 1981 report of the Commission's Office of Inspector and Auditor which was critical of the initial investigation by the Commission's Office of Inspection and Enforcement. Finally, the Bocrd Notification advised the Board and parties that the voluminous documentation supporting the two letters was being placed in the PDR and LPDR.

During this period the record in this proceeding remained open for the receipt of evidence on the remaining issues in controversy among the parties. On March 4,1982, the record was closed and all parties have submitted proposed Findings of Fact and the Board's initial decision is expected shortly. MVPP now requests leave to file new contentions.

III. DISCUSSION MVPP's Motion, in effect, seeks to have the record reopened and to have new contentions admitted for litigation. Separate legal standards govern the consideration of motions to reopen an NRC proceeding and the introduction of a late contention in any such proceeding. The Staff notes that the Applicar.ts have discussed the legal standards in great detail in their answer in opposition to MVPP's Motion. Applicants'

Answer at 11-43. The Staff agrees that the standards for reopening a record in Commission proceedings are enunciated in Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No.1), ALAB-462, 7 NRC 320, 338 (1978). Therein, the Appeal Board stated that the proponent of a Motion to reopen the record bears a heavy burden. The movant must demon-e strate that: (1)themotionistimely,(2)themotionisdirectedtoa significant safety or environmental issue, and (3) a different result would have been reached initially had the material submitted in support of the motion been considered. These standards were reiterated in Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2),

ALAB-573, 10 NRC 775, 804 (1979), where, as here, the motion to reopen was filed after the record was closed but prior to issuance of a decision by the Licensing Board.

MVPP does not address the issue of reopening the record in its Motion.E Under such circumstances, the Staff would normally argue that the movant has not met it., burden. However, there are special circumstances 11 this case which cause the Staff to support reopening the record. The safety issue which MVPP has raised is a most serious one. It is an issue which must be explored in sufficient depth to permit a confident judgment on it before reactor operation is 3/ MVPP does address the matter of the nontimely filing of its proposed contention in its Motion. MVPP, while acknowledging the lateness of filing its new proposed contentions, asserts that all five criteria of 10 C.F.R. % 2.714(a)(1) have been satisfied. In the alternative, MVPP argues that its proposed contentions so seriously challenge the safety of the Zimmer plant that the Board should exercise its discre-tion to admit them even if some of the Section 2.714(a)(1) require-ments are not met. Motion at 22. MVPP set out its arguments as to how the criterda have been satisfied. Motion at 23-26.

4 licensed. The earlier finding of a breakdown in the Applicants' quality assurance program reached in the Region III investigation has been ,

widely disseminated in the Cincinnati area. The public interest in having this serious safety issue litigated in the open and thereby affording the public the opportunity to be fully apprised on the matter warrants the exercise of the Board's discretion to reopen the record.4/ '

The Staff recognizes that there is validity to the Applicants' state- -

ment of the applicable law contained in Applicants' Answer. However, the breakdown in the Applicants' quality assurance program which has resulted in construction defects, and which, in the course of the ongoing investigation, may result in the discovery of more construction defects at the Zimmer plant raises a serious safety question. The information regarding the extent of the construction defects has the potential for resulting in the possible denial of an operating license.

In the special circumstance 3 of this case, the Staff's position is that the public interest is best served by the Board reopening the record and admitting the eight contentions proffered by MVPP as issues in contro-versy.EI l -4/ See, Union Electric Company (Callaway Plant, Unit 1), Memorandum and Drder (On Motion for admission of additional evidence) l (April 26, 1982). Guided by the particular circumstances involved

! in that case, the Licensing Board exercised its discretion to open l

the record for the admission of a document.

-5/ In its Motion, MVPP states that by separation motion, it will request a protective order so that the identity of its potential witnesses "be kept confidential from all except the Board." Motion at 28. The Staff believes it would be premature to address this matter now but will do so when the motion is filed.

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CONCLUSION For the above reasons, the Staff's supports reopening the record and granting MVPP's Motion to file additional contentions.

Respectfully submitted, WAN Stuart A. reby Assistant Chief Hea ng Counsel

• for NRC Counsel Dated at Bethesda, Maryland this lith day of June, 1982 I

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COP 911SSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CINCINNATI GAS AND ELECTRIC Docket No. 50-358 COMPANY, et al.

(Wm. H. Zimmer Nuclear Power Station, Unit No. 1) )

NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned proceeding. In accordance with 9 2.713(b),10 C.F.R. Part 2, the following information is provided:

Name -

Stuart A. Treby Address -

U.S. Nuclear Regulatory Comission Office of the Executive Legal Director Washington, DC 20555 Telephone Number -

Area Code 301 - 492-8661 Admission -

Supreme Court of the United States Court of Appeals for the State of New York Name of Party -

NRC Staff U.S. Nuclear Regulatory Commission Washington, DC 20555 hAV k-

'Stuart A. Treby I

/

AssistantChiefHeari1gCounsel For NRC Staff Dated at Bethesda, Maryland this lith day of June 1982 i

l' UNITED STATES OF AMERICA NUCLEAR REGULATORY C0!!MISS'0N BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CINCINNATI GAS AND ELECTRIC Docket No. 50-358 COMPANY, et al, (Wm. H. Zimmer Nuclear Power )

Station, Unit No. 1) ) 3 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MIAMI VALLEY POWER PROJECT MOTION FOR LEAVE TO FILE CONTENTIONS," and " NOTICE OF APPEARANCE" for Stuart A. Treby in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Connission's internal mail system, this lith day of June, 1982.

John H. Frye, III, Chairman

• Timothy S. Hogan, Jr. , Chairman Administrative Judge Board of Commissioners Atomic Safety and Licensing Board 50 Market Street U.S. Nuclear Regulatory Commission Clermont County Batavia Ohio 45103 Dr. Frank F. Hooper Administrative Judge William J. Moran, Esq.

School of Natural Resources General Counsel University of Michigan Cincinnati Gas & Electric Co.

Ann Arbor, Michigan 48109 P.O. Box 960 Cincinnati, OH 45201 Dr. M. Stanley Livingston Administrative Judge Andrew B. Dennison, Esq.

1005 Calle largo 200 Main Street Santa Fe, New Mexico 87501 Batavia, OH 45103 Troy B. Conner, Esq. Mr. Samuel H. Porter Conner & Wetterhahn Porter,' Wright, Morris & Arthur 1747 Pennsylvania Avenue, N.W. 37 West Borad Street Washington, DC 20006 Columbux, OH 43215 John D. Woliver, Esq. Deborah Webb, Esq.

Legal Aid Society 7967 Alexandria Pike P.O. Box #47 Alexandria, KY 4100 550 Kilgore Street Batavia, Ohio 45103

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Lawrence R. Fisse Esq. Lynne Bernabei, Esq.

Assistant Prosecuting Attorney Government Accountability .

462 Main Street Project /IPS Batavia, Ohio 45103 1901 Q Street, N.W.

Washington, DC 20009 W. Peter Heile, Esq.

Assistant City Solicitor Room 214, City Hall -

Cincinnati, Ohio 45220 ,

Atomic Safety and Licensing Board Panel

• U.S. Nuclear Regulatory Comission Washington, DC 20555 Atomic Safety and Licensing Appeal Board

• U.S. Nuclear Regulatory Comission Washington, DC 20555 Docketing and Service Section*

Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 David Martin, Esq.

Capital Building Room 18 Frankfort, KY 40601 Brian Cassidy, Esq.

Regional Counsel FEftA REGION I SW McCormack P0CH Boston, Massachusetts 02109 Str t, S. W.

Washington, DC 20472 Stuart A. Treby Assistant Chief Heari g Counsel for NRC Staff

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