ML20057B560
| ML20057B560 | |
| Person / Time | |
|---|---|
| Issue date: | 10/25/1982 |
| From: | Malsch M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20049A457 | List:
|
| References | |
| FOIA-92-436 SECY-82-435, NUDOCS 9309220231 | |
| Download: ML20057B560 (8) | |
Text
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SECY-82-435 s..m,
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ADJUDICATORY ISSUE (Notation Vote)
For:
The Commission i
Martin G. Malsch, Deputy General Counsel From:
Subject:
MIAMI VALLEY POWER PROJECT'S MOTION FOR
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RECONSIDERATION OF THE COMMISSION'S ORDER DIRECTING DISMISSAL OF NEW CONTENTIONS ADMITTED AS BOARD ISSUES IN ZIMMER To advise the Commission of its options in
Purpose:
responding to MVPP's petition.
I Discussion:
In its Motion for Reconsideration of the Commission's July 30, 1982 order directing i
dismissal of new contentions admitted,as sua sponte board issues in Zimmer, Miami Valley Power Project (MVPP) argues both that the l
Commission abused its discretion in denying the Board sua sponte authority to try MVPP's eight contentions as Board issues and that the, Cormnission erred in upholding the Licensing Board's determination-that MVPP failed to meet the legal standard to reopen the licensing proceedings fp tconsideration_of_its_ proposed contentions.' As we will develop more fully
~below, we continue to advise that Lo {
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Background===
In SECY-82-318 (July 27, 1982) we analyzed the Commission's options in light of the Licensing Board's July 15, 1982 decision to reopen the Zimmer hearing to admit sua sponte as Board r
issues, eight new contentions origin 1A h I
_ prop _cmed Jay. MVPP.
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i On July 30th the Commission, agreeing that the issues raised by the Board were indeed serious, nonetheless overruled the Licensing Board's sua sponte admission of the new contentions.
(CLI-82-20).
The Commission's l
order emphasized the Commission's concern and direct involvement in the Zimmer matter.
It then explained:
The basis for the eight contentions which the Board has accepted as Board issues is simply a repetition of some of the problems i
revealed in the reports of the investigations which have already been released to the public.
The Miami Valley Power Project (MVPP),
an Intervenor, which filed an i
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The contentions all related to the quality assurance problems at Zimmer and to the Applicant's character and competence to operate the nuclear plant.
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untimely request with the Board that these issues be considered, suggested that it had new i
information on these matters.
MVPP did not in its motion to the Board or elsewhere sufficiently. identify any new information, its source, or say when it became available.
The NRC staff supported the motion to reopen.
However, the staff recognized a..d the Board ruled that the legal standards for further hearings were not met.
Slip op. at 2-3. 2/
On August 20, MVPP filed a petition for reconsideration of the Commission order which incorporated a large compilation of information on quality assurance problems at Zimmer.
The petition challenged the Commission's action as an improper curb on tLe Licensing Board and argued that it was evident from the history of this matter that the Staff could not alone conduct a proper examination.
MVPP also argued that it met the standards for late contentions and for reopening the record.
l The Applicant and Staff each filed responses.
Applicant answered on September 7 in opposition to the petition on procedural and substantive grounds arguing that MVPP did not satisfy the procedural' standards for reconsideration and in any event failed to show that the Commission erred in denying the Board sua sponte power or in affirming the Board's Judgment that legal standards for reopening had not been met.
On the other hand, Staff's September 22 response supported MVPP's motion, asserting i
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Commissioners Gilinsky and Asselstine dissented and attached their separate views to the majority's opinion.
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f 4-that legal standards for reconsideration had been met.
Staff emphasized that its recommendation in favor of a public adjudicatory hearing is based on the unique circumstances present in the Zimmer proceeding.
Its arguments were policy arguments, i.e. that a hearing might help to restore public confidence in the safety of the Zimmer plant and that cross examination would be a useful tool to arrive at the truth.
Staff noted in its statement of the background that the Commission's order stated the Commission's conclusion that MVPP's motion was filed untimely and the legal standards for reopening had not been met.
(p. 15)
- However, Staff did not evaluate whether the standards for reopening had been met in light of MVPP's new submissions.
Nonetheless, Staff did note that it had made a preliminary assessment of the inforr:ation in the very large number of documents that accompanied MVPP's petitions for reconsideration as well as the petition to stop construction filed on the same date and incorporated by reference into the petition to reconsider.
Staff preliminarily concluded that the documents contained some new information that had not previously been presented to the Board or Commission.
On October 14, MVPP filed a brief responding to Staff and Applicant's responses.
That pleading was also accompanied by numerous exhibits, many of them from NRC files, which MVPP claims support MVPP's position that public participation is needed for a proper resolution of the Zhmmer problems.
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Analysis 1.
Reconsideration of the Sua Sponte Issue MVPP makes a number of arguments why the Commission should not have overruled the Licensing Board's sua sponte decision. 3/
ut in the final analy31r N
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MVPP makes the following main points:
1.
The Commission's restriction of the Licensing Board's consideration was an abuse of discretion improper under 10 CFR 2.760.
t 2.
The staff has demonstrated that it is not capable of adequately monitoring applicants' quality assurance program by itself.
3.
Region III cannot be trusted because it failed to stop construction at Zimmer in April, 1981, even though all NRC investigators recommended that action.
4.
Delays in NRC's Reinvestigation of Zimmer and failure to pursue promptly the criminal investigation of falsification of 0.A. records cast doubts on staff's ability to monitor CG&E's reforms.
5.
Staff's enforcement record and inconsistencies demonstrate its susceptibility to CG&E pressures that may compromise public health and safety.
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l Accordingly,'~
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_MVPP's Request for Reconsideration of the Determination that Recoening Standards Were not Met I
-m As our background discussion suggests, j
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Martin G. Malsch Deputy General Counsel
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4 Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Tuesday, November 9, 1982.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Tuesday, November 2, 1982, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION:
Commissioners OGC OPE OIA SECY l
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