ML20058G747
| ML20058G747 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 07/30/1982 |
| From: | Conner T CINCINNATI GAS & ELECTRIC CO., CONNER & WETTERHAHN |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8208030414 | |
| Download: ML20058G747 (25) | |
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000,g. p EiEC UNITED STATES OF AME k L NUCLEAR REGULATORY COMMISSION QFFIC 3E V Before the Commissi.6h'JCFSEC8 lhfCH In the Matter of )
-) _- .. .,
The Cincinnati Gas & Electric ) Docket No. 50'358 -
Company, e_t, t M.. - -- 2 y 4 Z+
(Wm. H. Zimmer Nuclear ~Powe'r ) . .
Station) )
APPLICANTS' SUG_GESTION OF.THE IMPROPRIETY; OF LICENSING BOARD'S SUA SPONTE REVIEW -
Preliminary Statement ,
By Memorandum dated July 15,'1982, the Atomic Safety -
and Licensing Board (" Licensing Board" or " Board") in the captioned proceeding notified the Commissioners pursuant to SECY-81-304B and the Commission's Memorandum of June 30, 1981 that it had exercised authority to raise sua sponte eight new contentions initially proposed by intervenor Miami Valley Power Project '("MVPP") over the objection of The Cincinnati Gas ~ & Electric Company, et al. (" Applicants").
' The Board attached a separate Memorandum and Orderof .even date discussing its sua sponte action.
In the Applicants' view, such action contravenes the Commission decision of July 16, 1982 in the Three Mile Island (Restart) proceeding, denying reopening for sua sponte review by the Appeal Board, and other precedents.
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pDRADOCK208030414 05000358820730 g PDR l
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The Commission is respectfully requested to exercise its inherent supervisory authority over licensing boards, as it has in the Comanche Peak and Diablo Canyon proceedings, 1/
to correct this serious error.
'The contentions relate to quality assurance allegations at the Wm. H. Zimmer' Nuclear ~ Power- Station ("Zimmer") which have-been the subject of-intensive Staff review for over two years and with which the Commission is now well ~ f amiliar.
The Licensing Board declined to grant MVPP its proposed contentions, because it found that MVPP had.-failed .to satisfy the Commission's ~reqtiirements for - filing : late contentions.- .Nevertheless, theiBoard adopted MVPP's eight
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contentions M haec verba because it perceived a need for an additional " full public airing. of this matter" which !
" overrides legal niceties' pertaining t'o ' acceptance. of of. records." 2/ ~ No untimely contentions 'and . reopening specific finding'that 'a ~ serious safety, environmental, or common ' defense and security matter exists" was made by the Licensing Board as commanded by 10 C.F.R. 52.760a.-
J/ See Texas Utilities- Generating Ccmpany (Comanche ~ Peak Steam Electric Station, Units 1 and 2) , CLI-81-24, 14
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NRC 614 (1981); Pacific ' Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-81-5, 13 NRC 361, 362 n.1 (1981).
-2/ Memorandum and Order at 8, 7 (emphasis added).
noted that the Director of Region III, It is Office of Inspection and Enforcement, has already conducted puolic meetings on these matters.
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. I The action by the Licensing Board will require a [
reopening of the record, which was closed on March 4, 1982, i following the rendering of an Initial Decision by the Licensing Board on June 21, 1982.-3/ Given the Staff's best j i
estimate for the completion of its review and Applicants' current schedule for fuel- loading and low-power testing, lengthy hearings- on the eight .new contention's will' certainly create delay, and probably - very ' serious delay, in the licensing of the Zimmer facility. - - -
Moreover,. sua sponte review by the Board will produce little if any incremental margin- of safety for the plant.
As the Commissioners have been.f.ully. informed in a number of briefings, the - Staf f - _ is . currently: civers~eeing major-improvements in the Quality Assurance Program at Zimmer as well as an extensive Quality Confirmation ~ Program to confirm the quality of - construction work' in - place . prior 'to the
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issuance of Region III's1Immediate Action Letter.of. April 8,
_3_/ Cincinnati Gas & Electric Company (Wm. H. Zimmer
! Nuclear Power Station, Unit 1) , Docket No. 50-358, LBP-82-48, 15 NRC. . (June . 21, .19 8 2) .. The. Board's-l Initial Decision concerned emergency planning at Zimmer
! and indicated that additional proceedings ~ would be l necessary on the subject of FEMA findings and school bus transportation. However, the Board expressly
! stated at page 6 of its Memorandum and Order (July 15, 1982) that it " anticipates that these matters should be
, expeditiously concluded. On the other hand, MVPP's l Motion raises matters ~ which may well involve lengthy proceedings before this Board." In other words, the Board acknowledged that any hearing on the quality assurance contentions would necessarily extend well beyond the time taken to conclude the two remaining j
aspects of emergency planning.
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1 1981. Regardless of any hearing before the Board, no I operating license can be granted for Zimmer until:the Staff has signed off on all pending quality assurance matters by making the requisite safety findings. The Board's hearing e
of the same matters -can. only. divert. -the _ Staff 's and Applicants' . resources - from -this- review without any commensurate safety benefits. c. Contrary..to ..the..-Board's I
opinion that. a further: hearing; would- strengthen the quality assurance program, it can only:be. counterproductive.
The same. personnel of.both:the.NRC Staff.and-Applicants will necessarily be involved in the:reviewiand. implementation of these quality . . assurance . improvementsc as: :well; as in testifying on these matters in he hearing. :
Stated simply, foilowing the proposed .public hearing, the proceeding would be.in the'same legal-posture it is now: 1 no full power .. license may. issue untili all: consE~ruction quality assurance matters: have~ been . signed of f on . by n the Staff. -
Applicants. respectfully submit that the Board's invocation of. Sua .sponte authority in these circumstances constitutes a serious abuse _ 'of discretion that should be reversed by the Commission in the exercise of its general supervisory powers over licensing . proceedings, exactly as the Commission recently performed this function in the Comanche Peak and Diabl.o Canyon proceedings, It must be emphasized that Applicants fully appreciate the overriding O
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- importance of quality assurance in the Commission's j licensing scheme and, in particular, the specific quality assurance review programs now in place at Zimmer as a result of recent actions taken jointly by Applicants and the NRC Staff. Nonetheless, the wholesale adoption by the Licensing l
Board of late contentions which it expressly found were not cognizable under the Commission's Rules .. of Practice is an entirely unauthorized -and unwarranted action $which, in Applicants' view, requires immediate. reversal by the Commissioners. As the Appeal Board has- aptly stated:
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" Litigation has to end sometime.'! 47 Factual Background
- As the Commission is well ware, its Staff;has for some
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e time been conducting an in depth review of quality assurance procedures at the Zimmer . plant. NRC Region III sent an Immediate Action Le'.te r ,- dated April 8,- . 1981, following lengthy discussions with - the Applicants , -which- led to, -the establishment of Applicants' augmented Quality Assurance Program. A Quality Confirmation Program. was also agreed upon in mid-1981 and transmitted.to I&E. Region III on August 21, 1981. 5 This program, which should be completed by
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the end of this year, will serve'to confirm the quality of J/ Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 750 (1977).
J/ See IE Inspection Report 50-358/81-13, Exhibit 17.
. past construction at Zimmer. Further, the Staff is also supervising Applicants' implementation of all corrective
- action deemed necessary by the Staff to correct the sources of quality assurance deficiencies identified by Applicants, its contractors and by the: Staff in its investigation.
Thus, the NRC has closely monitored..all improvements in Applicants' Quality Assurance Program .since ' the Immediate Action Letter and- .has conferred 'with Applicants'-
representatives at n_umerous conferences since its initiation. In this regard',. 'the
.NRC's most recent Systematic Assessment of. Licensee. Performance ("SALP"). for Zimmer, dated June 24, -1982, reflects that the effectiveness in quality assurance . areas- overall has
" improved substantially." The report findings further indicate that the Quality Confirmation Program " appears to be effective in that implementation of the prog' ram is resulting in the identification of construction deficiencies," and that the overall effectiveness of the program has " improved substantially."
The NRC's satisfaction with the progress made in the implementation of the overall program is reflected in a letter originated by Region III from William J. Dircks, Executive Director for Operations, to Senator Walter D.
G/ Lotter from J.A. Hind, Director, Division of Emcrgency Preparedness and Operational Support, to Earl A.
Borgmann, Senior Vice President, The Cincinnati Gas &
Electric Company, Enclosure 1 (June 24, 1982).
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Huddleston, dated January 27, 1982, in which the NRC Staff describes these corrective actions as follows:
Last April the NRC required Cincinnati Gas and Electric. Company 'to substantially 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! --
' inost importantly -- a 100 percent duplication by Cincinnati Gas and Electric Company of subsequent safety related quality.
control inspections performed Iby site-contractors. These actions assurances, in our ~ view, that'provided ongoing construction' activities would be adequately controll'ed. -- -
. . .- . We are satis'ied f that- the
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quality confirmation- program, monitored ~
by the NRC, and' other augmented NRC -
inspection activities will provide a full and adequate evaluation of the Zimmer construction.
Based in large part upon such statements and the general perception that the Staff has been satisfied with progress in the Quality Assurance Program, Applicants acceded to the penalty of $200,000 proposed in the Notice of Violation issued by the_ Office of Inspection and Enforcement on November 24, 1981. By letter dated February 24,'1982 in response to the Nobice of Violation, Applicants stated, inter alia, their belief that "it is important that we be i
free to devote our full resources and attention toward the positive goal of completing the Wm. H. Zimmer Nuclear Power 4
Station in a quality manner," rather than divert resources to litigation. 7/ _ _
The same theme was expressed by the Chairman of the Commission in a letter dated November 16, 1981 to the Chairman of the Subcommittee on Energy and the Environment of the -House Committee on Interior and Insular Affairs. The letter. takes on even greate.r, significance in light of the belief expressed by the Licensing Board in its decision to reopen that its sua: sponte review of the same matters is consistent with the Commission's preferences. Thus, responding to,the congressional inquiry, the Chairman, speaking for the Commission, stated:
My own inquiry _ into this matter convinces ~ me that, while there are -- ..
inadequacies. in the initial OIE investig'ation of Zimmer and - in its investigatory program generally, the findings presented to the Commission tio ~
date do not indicate,that these problems have contributed to an adverse public health -and; safety , situation at the plant.
The Chairman concluded:
l I am satisfied with the steps we are taking at the Zimmer Nuclear Power Plant to protect '
public health and safety. A follow-up OIE investigation is nearly complete. OIE's final l report should be available t
shortly. In addition, I note that the licensee has recently i
committed to a Quality
-7/ Letter from William H. Dickhoner, President, Cincinnati Gas & Electric Company, to Richard C. DeYoung, i Director, Office of Inspection and Enforcement, NRC at
- p. 3 (February 24, 1982).
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o Confirmation Program to address the problems that have been found at the Zimmer ._
plant.
In summary, shortcomings in the earlier OIE investigation of Zimmer reveal -a generic problem. Steps are being taken to remedy that problem. In addition, OIE will shortly release its final report on the Zimmer. plant. _ The Commission will look closely at that report. Finally,. the.. licensee is committed to a- verification program to provide further assurances to public health and safety. _8_/
Nonetheless, on May 18, 1982,.almost six months after the issuance of IE Investigation; Report 50.-358/81-13 and [
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I over a year since issuance of the . Immediate Action Letter j and initiation of extensive qtih'lity assurance augmentation, MVPP moved for the admission. of eight new contentions and ..
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for the reopening of this proceeding to further consider alleged quality assu5ance
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'def.ciencies. The MVPP information;._ they allegations contained no new merely parroted matte'rs contained in the November 24, 1981~ IE Report and added a smattering of correspondence to and from the NRC and ~ Appli~chnts, congressional testimony and statements, newspaper clippings and the like. 9/ Applicants
-8/ Letter dated November 16, 1981 from Nunzio J.
Palladino, Chairman, NRC to the Honorable Morris K.
Udall, Chairman, Subcommittee on Energy and the Environment, House Committee on Interior and Insular Affairs.
-9/ MVPP also claimed knowledge of other facts, which it did not disclose, based on information and documents obtained from unidentified informers. However, the Board apparently gave no weight to these vague allegations.
. opposed the admission of these contentions on the grounds that MVPP had failed to satisfy the requirements for late contentions under 10 C.F.R. S2. 714 (a) (1) (i-v) and had also failed to satisfy the independent criteria for reopening a proceeding.
On July 15, 1982,- 'the Licensing Board r'uled that MVPP ju'stify'
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had indeed failed to' the 'a'd'm'is's' ion' of new contentions, but decided' nonetheless to' adopt MVPP's eight5
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proposed contentions sua sponte- and' thereby reopen the proceeding.10/ ~ ~-
The specific findings'made by the' Licensing Board and, even more important', ' the~ findings' wh'ich were' 'not' made , are
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extremely ~ crucial to the 7 Board's exercise 'of sua spont'e ..
authority. At the outset, the Board recounted the history
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of the Staff's quality assurance~ investihatidns' at Zimmer Thus,"the -Board slidwed that it' was informed
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since midil98'0.
as to these matters,b!' ~and in fact found th'at MVPP had l
~10/ Memorandum and Order at 7. Despite the Commission's statement to the Udall subcommittee, and the technical Staff's expressed satisfaction with the progress made in the Quality Confirmation. . Program and . its acknowledgement that Applicants' were correct as a matter of law that MVPP had not met its burden, the legal Staff took the position ~that the "public interest in having this serious issue litigated in the open and thereby affording the public - the opportunity to be i fully apprised on the matter warrants the exercise of l the Board's discretion to reopen the record." NRC Staff Response to MVPP Motion for Leave to File Contentions at 4, 5 (June 11, 1982).
11/ See e.g., Memorandum from Robert L. Tedesco, Assistant Director for Licensing, Division of Licensing, to the (Footnote ll/ continued on next page) l .
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, failed to demonstrate " good cause" for its lateness in presenting contentions based upon this information.12/
.. Specifically, the Board found:
MVPP fails to tell.us when it learned the information which prompted the Motion and is vague as'to precisely what this information is. Given the timing of its Motion (on ;the eve of an _ Initial Decision which normally would have concluded this Board!s. consideration of the License Application) we think this failure -is particularly significant.
. . . While MVPP asserts that it proceeded expeditiously after it-learned of new information, it does not specifically. . identify :this information or tell us when it became available. In fact, that : presentation . indicates .that MVPP has long been critical of the Zimmer QA program. 13_/.
Accordingly, nothing in the Board's decision indicates that it was unaware of any of t h e J. i n f o r m a t i o n or developments contained.in the Zimmer.re Nrd to.date or,.' conversely, that any information cited.by MVPP in-its motion provided~a' basis for sua sconte review or, . specifically, _ the eight adopted contentions.
1_1_/ -(continued)
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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).
12/ Memorandum and Order at 5-7.
13/ Id. at 5-6.
The Licensing Board cited three reasons for its exercise of sua sponte authority, none of which meets the
.. level of specificity or seriousness required under 10 C.F.R. 52.760a for invoking sua sponte authority. First, the-Board noted the testimony of William J. Dircks, Executive _ Director for Operations, before the Subcommittee on Energy, and Environment of the_ House, Committee on Interior.and Insular Affairs,-dated November.19, 1981, to the.effect that Zimmer has been identified as a plant ; with a- serious quality assurance -breakdown. _ Second,. the imposition. of a ; civil penalty . was noted. _ _
Third,. the B,oard observed .that. the Commissioners were recently briefed by Appli_ cants and MVPP,
. " indicating the continuing concern about the matter." -14/
It dismissed the requirements of 10 C.F.R. 52.714 and S2.760a as " legal niceties." For the reasons discussed
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below, it is respec'tfully ~submitited that the 'BoTrd has failed to make the' necessary findings 'under 10 C.F.R.
52.760a for the raising of quality assurance issues sua
- sponte.
Discus'sion Under the Commission's regulations in 10 C .T . R .
52.760a, a Licensing Board makes; findings of fact and conclusions of law on the matters put into controversy by the parties to the proceeding. Matters may be raised sua sponte by the presiding officer "only where he or she 14/ Memorandum and Order at 7.
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. determines that a serious safety, environmental, or common defense and security matter exists." To implement this provision, the Commission advised its adjudicatory boards by memorandum dated June 30, 1981 that, upon raising an issue :
sua sponte in an operating license proceeding, the board shall. issue a separate order making the requisite findings, briefly state i_ts. reasons for-raising.the: issue, and forward a copy of its order to the Commissio'n and the Office of the i
General Counsel. The apparent purpose behind this requirement is to afford the Commission immediate. knowledge of sua sponte actions in. order that.it may exercise its own oversight responsibilities'in a.timel~y and efficient manner.
In Comanche Peak, the '. Commiss. ion provided additional guidance to licensing boards in the exercise of sua sponte
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i authority. In that case, the Licensing-Board dismissed an intervenor from: the 1 proceeding.:but : retained,. ~pending completion of Staff review, eight of the intervenor's; eleven contentions. The Commission requested the Board to describe, as to each of the eight contentions the i
"particular factors beyond the mere pendency of staff review i
upon which it bases its determination of.the existence of 'a serious safety, environmental or common defense and security matter . ' " 15 / ' In response, the Licensing Board stated that it had declined to dismiss the contentions "because the 15/ Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 NRC 614, 615 (1981).
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Staff had not completed its review and reached its final position in these areas" -and that "to dismiss contentions and in effect sign off on these issues prior to even a statement from the Staff as to whether the issues can be resolved, would. . be neither. prudent _nor, conservative. " -
16/
The Board concluded that "
some - threshold _ ;1evel of informational justification should be satisfied" prior to dismissal of the contention. 17/ The' Board also expressed concern over possibly. unwarranted Staff delays.
The Commission found the . Licensing Board in error on all points. First,. it stated that .the Board's sua sponte action "_as. a . potential. case _ management- tool" was
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unauthorized. It. stated: --
[T]he assertion of a board's sua sponte authority to monitor or otherwise manage the. ' course ~ of a proceeding is' not an appropriate use of this power granted _
licensing'. boards,_ Accordingly ,- _the apparent need to expedite a licensing proceeding or monitor -the staff's progress in identifying and/or evaluating potential safety or environmental issues are not factors which authorize a board to exercise its sua sponte authority under 10 CFR 2.760a. 18/
Second, the Commission found that the mere acceptance by the Licensing Board of a contention at the intervention stage 16/ Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-81-38, 14 NRC 770-71 (1981).
17/ Id. at 771.
18/ Comanche Peak, supra, 14 NRC at 1113 (emphasis added).
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"does not justify a board to assume that a serious safety, environmental, or common defense and security matter exists ;
i or otherwise it of the obligation under 10 CFR
. relieve 2.760a to affirmatively determine that such a matter l exists." 19I -
The Licensing Board _in the instant decision, which did not discuss Comanche Peak, has similarly erred.
The "public interest" in "a full public airing of this matter" which was .
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clearly the Board's dominant concern .is simply.not a basis for raising issues sua sponte. . Nor is; any .of. the ;
specific items cited by; the Board any more -substantial..
The Staff testimony and the imposition of.a-civil penalty cited _
by the Board were based upon. quality assurance. deficiencies which occurred prior to the imp,lementation of corrective action which the Staff has now found . to have re_sulted. in
" substantial improvement" in quality assurance at 71mmer.
Certainly, earlier actions are not a basis for a present finding that -a serious safety problem exists. With regard to the meeting with tlie Commissioners on June 16, 1982, the Board may have been unaware that Applicants had initiated the request for the meeting. In any event, a brie'fing before the Commissioners represents their desire for information and is by no means any indication that they believe that a serious safety problem exists.
19/ Id. at 1114.
20/ Memorandum and Order at 7-8.
Thus, contrary to the Commission's guidance in Coman'he c
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Peak, it is apparent that the Licensing Board intends to :
I utilize the eight contentions it adopted from MVPP as a basis to "menitor the Staff's progress in identifying and/or i evaluating" qnality assurance matters at Zimmer. The legal Staff's assent to this procedure does not make it any more appropriate. -
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Further, the Licensing Board's adoption in haec -verba of the.eight' proposed-MVPP contentions without modification demonstrates how.. unfocused and2far afield its approach would be in any hearing oni sua sponte: issues. In Comanche. Peak,'
the Commission found that the -Licensing Board lacked
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authority ~ to retain, by way of its sua sponte authority, a number of contentions;which the Board had already determined to be acceptable for litigation in the proceeding. Here, by contrast, the Board ' expressly found that the contentions proposed by MVPP did not. " concern matters previously
- litigated
- in this case." b Th'e Board also found that' it l would have otherwise _ denied MVPP's late contentions. -22/
! Yet, the Board never explained any nexus between the eight 1
21/ Memorandum and order at 1.
l 22/ Id. at 5-6. To make matters worse, the Licensing Board
! ruled that, subject to submitting an authorization from l one of its members to represent his interest, MVPP, l
which lacked good cause to sponsor the quality assurance contentions, may nonetheless participate in the hearing. In this regard, the Board stated its view (Footnote 22/ continued on next page)
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. contentions proposed by MVPP and any serious safety concern it thought to exist. Appli~ cants do not agree that the ;
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Commission's regulations and decisions designed to protect I
against unwarranted delays and endless litigation in >
proceedings are, as the Licensing Board characterized them, mere " legal nice' ties." _ _ _ _ . _ _
In Diablo Canyon, the Commission expressly rejected the conc 6pt that the specificity and ~ lateness "r'equirements for contentions and the standards for reopening the record in a t'
proceeding are mere " legal nic.eties."24/'
-In- - reviswing -the reopening of the record by the T Licensing Board-in~that case to address new safety contentions, the Commission reiterated.
"that bare allegations o'r simple submission o f-' new contentions is n o t- suf ficien't. Only- - significant new J c evidence requires re' opening."25/
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The Commission also a
M/ (continued) that a different standard for reopening a case applies j in a situation in which reopening is requested on an l issue previously heard as opposed to the situation here, where none of the proposed contentions has been i the subject of previous hearings. I_d . at 6.
i Applicants' reading of the precedents on reopening offers no basis for such a distinction. Contrary to the Board's reasoning, it would appear .that even greater justification would be needed to reopen the l proceeding with regard to entirely new matters inasmuch
! as greater delay would be anticipated.
l l 23/ Id. at 7.
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-24/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , CLI-81-5, 13 NRC 361 (1981).
1 25/ Id. at 363.
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18 - e stated: "Ir addition, of course, the specificity and lateness requirements of 10 C.F.R. 2.714 must be satisfied, where applicable, and the standards for reopening records must be satisfied, where applicable."El Thus, in~ this instance the Licensing Board erroneously concluded that its departure from these mandatory requirements, could be cured by , invoking its sua sponte authority. - Moreover, 'the Licensing Board acted without.any "new evidence" and without reviewing any supporting affidavits it subsequerjtly ordered to be filed by the intervenor 27/
Further, the Board: ' offered. -no . support :for :its conclusion that adjudication be. fore it~on these issues ~can
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only contribute to, and not- detract from, the Quality Assurance Program at Zimmer. Although -the Commission's experts in quality assurance have reviewed Applicants' program and found it to be adequate,El the Licensin'g ' Board wishes to add c.e r:ely another layer of review despite the fact that it has not specified any particular safety
- 26/ Id. at 364 (emphasis added).
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E/ Memorandum and Order at 2,-5, 6.
-28/ As the Appeal Board noted in the Summer proceeding, "the basic structure of NRC licensing proceedings, as reflected in the Commission's Rules of Practice, 10 CFR Part 2, and the guidance found in Appendix A to those rules . . . gives the staff, as a representative of the public interest, a dominant role in assessing the radiological health and safety aspects of the involved l facilities." South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1) , ALAB-663, 14 NRC 1140, 1156 (1981) (footnote omitted) .
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s concerns involving quality assurance matters. The' granted contentions can only result in a rehashing of matters previously considered and resolved by the duly delegated Staff of the Commission after at leastL. some discussion by the Staff with the Commission itself.
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In a recent Three Mile Island decision, the Commission
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has reemphasized that expertise in safety issues that must be satisfactorily resolved before issuance of a license ordinarily lies with the NRC Staff, not the Commission's adjudicatory boards. Thus, in its Order dated July 16, 1982
, in that proceeding, the Commission rejected the Appeal Board's request for authorization to hear three issues sua sponte. The Commission stated that these technical issues,
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althoughimportanttothepublic'Nealthandsafely,couldbe l . .
properly resolved by the' Staff: , ,
TheCommissI.onagreesw[ththeAppeal ~
Board . that these are~ important issues which must be satisfactorily resolved before the Commission makesna decision on the restart of Unit One. However, it does. not^ .believe that' these matters should be adjudicated in this instance by the Appedl Board. '.Each of the three, issues cansand will be dealt with by the NRC staff and the Commission, as part of ~
the review of uncontested issues that will take place prior to a decision on restart. There will be other1 safety issues relating to . Unit One that. also will be treated outsidc the context of 4
the adjudicatory proceeding. M/
29/ Metropolitan Edison' Company (Three Mile Island Nuclear i Station, Unit No. 1) (Restart), CLI-82-12, " Order".
(July 16, 1982) (emphasis added). -
t 9
h*
s _ . - . . , - - . --. ---- - ~_~ --
. The Commission's policy regarding the role of its regulatory Staff in licensing policies involves .one final
.. matter requiring comment, i.e., the Commission's policy established in the Marble Hill proceeding "that encourages ;
licensees to consent to ~, rather than contest ~, . enforcement actions." b The Commission in that case denied an intervenor's request for. hearing on an order byrthe Director of the Office of Inspection & ~ Enforcement:. suspending construction at the site, . where the licensee did not challenge the Director's ' order. The Commission determined that it could lawfully - preclude litigation ~of athe . matters resolved by the licensee.'s consent to the enforcement order and explained its rationale'as follows:
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We believe that:public. health and. safety is best 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 forl 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 interests, call for a hearing. on each enforcement order to ensure that the 30,/ Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2) , CLI-80-10, 11 NRC 438, 441 (1980).
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possibility of less severe action would also be considered. The end result would be a maior diversion of agency resources from project inspections and
. engineering investigations to the conduct of hearings. H/
The Board below attempted to distinguish this decision on the ground that it concerned "the ' husbanding of NRC Staff, not utility, resources" and that the Board is concerned with "a licensing rather than an enforcement proceeding." 32/
In Applicants' view, the Board was incorrect and the Commission's rationale is fully applicable here. Although Applicants are certainly concerned with the diversion of their own construction and engineering
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resources, the diversion of..NRC_ Staff.. resources; from oversight of Applicants quality assurance activities and -
programs in testifying at hearings will be, as in Marble Hill, of: equal concern. E Further, the Commission's important policy will be defeated if applicants deem themselves subject to late contentions and reopened proceedings on matters previously resolved between an applicant and the Staff. An applicant will be more likely 31/ Id. at 441-42 (emphasis added).
32,/ Memorandum and Order at 8.
-33/ The Board's statement that. Marble Hill involved an enforcement proceeding as compared to a licensing proceeding also involves an illogical distinction. The
" diversion of agency resources from project inspections and engineering investigations" to which the Commission alluded refers to the ongoing licensing process, not just specific enforcement actions.
i to contest a notice of violation if its consent, far from avoiding litigation, is cited as a basis for injecting the
. issue into the licensing proceeding. In the instant case, it was precisely to avoid the delay inherent in litigation I
and, as noted in Applican_ts,' le t_te,r of February 24, 1982, "to be free to devote (Applicents'] full resources and attention toward ~ the~' po'siti~ve goal of completing the . . .
Zimmer . . . Station in a quality manner," which motivated
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Applicants to consent- to the proposed penalty.
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Conclu'sion .
t As discussed above, the ; Licensing ^ Board in' this reopened- based
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proceeding the case' upon information contained in the~ record . of which it had 'long been ' aware. .
The impetus for its action was clearly the'ei~ght contentions
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proposed by an intervenor which it correctly determined were filed late without good causa, but which it nonbtheless adopted sua sponte. The Board's lack of~ findings.~as t'o its _
adoption of these contentions and its overall fail 6re to make the particulari~ zed findings as to the existence of a serious safety issue belie its exercise of sua sponte authority. Its action 'will result in an unnecessary' and i wasteful diversion of technical resources with marginal, if any, value to the public health and safety.
0
. _ _ , - ., m _ _ _ _ _ _
It is respectfully suggested that the Commission assume sua sponte review of the Board's action and direct the Board to issue an appropriate order dismissing the contentions from the proceeding. }
Respectfully submitted, CONNER & WETTERHAHN, P.C.
Troy . Conner, Jr.
- Mark J. Wetterhahn l Robert M. Rader Suite 1050
1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006 202/833-3500 Counsel for the Applicant
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July 30, 1982 __
e S
4 r - - , . - - , c _ - . _ , , - - _ _ , - - . . , , - - - ~ - , .
I 00? METED USNRC UNITED STATES OF AMERICA '82 AM -241 :02 NUCLEAR REGULATORY COMMISSION ,
CFF G 0F $ECROAE In the Matter of ._
) _ -
DMTING & SERVICL
) 8 RANCH
'~
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' Suggestion of the Impropriety of Licensing Board's Sua Spont'el Review"
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dated July 30, 1982 in the captioned matter, have been served upon the following by deposit in the United States mail this 30th day of July, 1982:
Alan S. Rosenthal, Chairman I Dr. Frank F. Hoop'er.
Atomic Safety and Licensing -
Sierra Nevada Aquatic Appeal Board Rese' arch- Laboratory '-
U.S. Nuclear Regulatory . Route 1 Commission -
Box 198 s Washington, D.C. 20555 , Mammoth Lakes,.CA 93546 Stephen F. Eilperin Dr. M. Stanley Livingston Atomic Safety and Administrative.' Judge Licensing Appeal Board ,
1005 Calle Largo U.S. Nuclear Regulatory -
Sante Fe, NM 87501 Commission Washington,'D.C. 20555 C'hairman, Atomic Safety and Licensing Appeal Howard A. Wilber Board Panel Atomic Safety and U.S. Nuclear Regulatory '
Licensing Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission -
Washington, D.C. 20555 Chairman, Atomic Safety and Licensing Board Judge John H. Frye, III Panel Chairman, Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 J
I
- e Charles A. Barth, Esq. David K. Martin, Esq.
Counsel for the NRC Staff Assistant Attorney General Office of the Executive Acting Director Legal Director Division of U.S. Nuclear Regulatory ~ Environmental Law Commission ~ Office of Attorney General Washington, D.C. 20555 209 St. Clair Street Frankfort, Kentucky 40601 Deborah Faber Webb, Esq. -- . . .
- 7967 Alexandria Pike George E. Pattison, Esq.
Alexandria, Kentucky 41001 Prosecuting Attorney of Clermont County, Ohio Andrew B. Dennison, Esq. _ 462. Main. Street"- -
Attorney at Law Batavia, Ohio 45103 200 Main Street _.
Batavia, Ohio 45103 William J. Moran, Esq.
. Nice President _and Lynne Bernabei, Esq. General Counsel Government Accountability The Cincinnati.~. Gas &.
Project /IPS Electric Company 1901 Q Street, N.W. - P.O. Box 960- :.
Washington, D.C. 20009 Cincinnati, Ohio 45201 John D. Woliver, Esq. '. Docketing and Service Clermont County ;_ .. __ _ Branch Office of the.
Community Council Secretary U.S. Nuclear -
Box 181 _ . . . ; Regulatory Batavia, Ohio 45103 Commission
- Washington, D.C. 20555 Brian Cassidy, Esq. _
Regional Counsel
_r --
Federal Emergency -
Management Agency -
Region I John W. McCormick POCH l Boston, MA 02109 i -
ho Robe'rt M. Rader cc: Robert F. Warnick Director, Enforcement and Investigation NRC Region III 799 Roosevelt Road Glen Ellyn, Illinois 60137 n