ML20077L516
| ML20077L516 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 08/03/1983 |
| From: | Conner T CINCINNATI GAS & ELECTRIC CO., CONNER & WETTERHAHN |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8308090453 | |
| Download: ML20077L516 (37) | |
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AUG UNITED STATES OF AMERICA mocgggvc
'j 3RRMCE$$fCR NUCLEAR REGULATORY COMMISSION C;
F bEcs Before the Atomic Safety and Licensing Boar 4 Oh In the Matter'of
)
)
The Cincinnati Gas & Electric
)
Docket No. 50-358 Company, et al.
)
)
(Wm. H. Zimmer Nuclear Power
)
Station)
)
APPLICANTS' RESPONSE TO REPLY BRIEF BY MIAMI VALLEY POWER PROJECT IN SUPPORT OF MOTION TO REOPEN THE RECORD AND APPLICANTS' ANSWER TO MOTION TO PERMIT DISCOVERY Preliminary Statement l
On June 3, 1983, intervenor Miami Valley Power Project
("MVPP") filed a motion seeking to reopen the closed record in this proceeding to litigate eight new contentions on quality assurance practices at the Wm.
H.
Zimmer Nuclear Power Station ("Zimmer").
On June 20, 1983 The Cincinnati Gas & Electric Company, et al.
(" Applicants") and the Staff of the Nuclear Regulatory Commission ("NRC" or " Commission")
l l
l filed ' answers opposing the relief sought by MVPP on the l
(
grounds that its motion was essentially one for reconsideration of a motion denied by the presiding Atomic Safety and Licensing Board
(" Licensing Board" or " Board") a year ago, and that the time for reconsideration had long since passed.
Applicants' legal analysis also demonstrated that the Licensing, Board had determined all matters before it in 8-6 453 830803 gSOq PDR ADOCK 05000358 6
PDR rendering an Initial Decision in the proceeding.
Its jurisdiction at this time is therefore limited to two narrow aspects of emergency planning remanded by the Atomic Safety and Licensing Appeal Board
(" Appeal Board") upon its review of the Initial Decision in ALAB-727.1 Applicants and the Staff also - took. the position that, on balance, MVPP had failed. to satisfy the Commission's legal requirements for reopening and admitting late contentions even assuming the Board had jurisdiction.
4 Subsequently, MVPP - sought and on July 7,
1983 was j
granted permission by the Licensing Board to file a reply brief to comment on the legal position taken by Applicants and the Staff as well as to offer additional affidavits MVPP l'
had elected not to file with its June 3,
1983 motion or
-which had been obtained in the interim.2_/
Noting that "there are a number of points which could not have been anticipated by Applicants in filing their opposition to l
MVPP's motion and that, in several instances, MVPP's reply 1/
The Cincinnati Gas & Electric Company (Wm.
H.
Zimmer Nuclear Station, Unit 1), ALAB-727, 17 NRC (May 2, 1983).
On July 13, 1983, the Commission permitted the time in which it could decide whether to review ALAB-727 to expire without further
- action, thereby rendering it final agency action.
-2/
As discussed in Part III, infra, MVPP does not claim that the information contained in the affidavits obtained since June 3, 1983 was previously unavailable, only that the affidavits themselves were obtained since that time.
L
- severely distorts the record and Applicants' position,"1/
Applicants reluctantly sought leave to respond to the reply brief.AI i
As discussed below, MVPP's reply brief demonstrates no basis in law or fact for reopening the record in this 4
proceeding to admit its late contentions.
Argument I.
MVPP has Confused the Legal Concepts of Finality and Intra-Agency Jurisdiction The thrust of MVPP's argument in reply is that the Licensing Board has jurisdiction to hear its motion because
" finality" has not attached to "the case" or, in particular, to ALAB-727. !
Quite simply, MVPP's discussion of 10 C.F.R S2. 717 (a) and the cases dealing with the overall jurisdiction of a presiding licensing board are irrelevant.
Applicants have no quarrel with the rather unremarkable propositions that the jurisdiction of a licensing board extends until it has rendered an Initial Decision which finally concludes all of the issues before it and that the 3/
Applicants' Motion for Leave to Respond to Reply Brief of MVPP at 1 (July 15, 1983).
4/
Applicants' motion was unopposed by MVPP and the Staff.
No ruling has been received by counsel for Applicants
'on its motion as of this time.
However, Applicants are filing their response to avoid any delay should its motion be granted.
5_/ -
Reply Brief by MVPP at 21 (July 12, 1983).
I
Initial Decision does not become final agency action until the time for the Commission's sua sponte review has elapsed.
The issues raised by MVPP's renewed motion to reopen the record (essentially a motion for reconsideration of the motion td reopen initially denied),6_/
- however, are not governed by either of these broad principles.1!
The defect in MVPP's legal analysis is revealed in its discussion of the Three Mile Island decision in ALAB-699, where the Appeal Board discussed the transfer of jurisdiction from the Licensing Board on appenl.0 Noting that the Appeal Board rulr" that a Licensing Board may reopen a proceeding "no later than either the filing of exceptions or the expiration of the period during which the Commission or an appeal board can exercise its right to 6_/
Significantly, MVPP concedes that the time has expired for the Licensing Board to consider its previous rulings on MVPP's eight late contentions as presented in its motion on May 18, 1982.
Reply Brief by MVPP at 2 n.2.
Accordingly, if the Licensing Board finds, as Applicants and the NRC Staff
- contend, that MVPP's instant motion is actually a
request for reconsideration, MVPP has acknowledged that it is untimely.
7/
Accordingly, the cases discussed by MVPP at pages 20-23 of its reply brief are inapposite.
E.g.,
Houston Lighting and Power Company (South Texas Project, Unit Nos. 1 and 2), ALAB-381, 5 NRC 582 (1977); Washington Public Power Supply System (WPPSS Nuclear Project Nos.
3 and 5), ALAB-501, 8 NRC 381 (1978); Uniroyal, Inc. v.
Marshall, 579 F.2d 1060 (7th Cir. 1978).
8/
Metropolitan Edison Company (Three Mile Island Nuclear
~
Station, Unit 1), ALAB-699, 16 NRC 1324 (1982).
. -. - review the record,"1I MVPP argues that ALAB-699 was wrongly decided because its holding " appears to be contrary to the clear meaning of 10 CFR 2.717 (a), and the accepted judicial understanding of finality." E obviously, the Licensing Board is not in a position to contradict the Appeal Board on a
point of law.
More importantly, MVPP's challenge to ALAB-699 demonstrates that it has confused two distinct concepts:
finality for l
judicial appeal as opposed to the shifting of intra-agency jurisdiction.
It was the latter which was expressed in the.
ruling in ALAB-699 that jurisdiction is transferred to the 9/
Three Mile
- Island, supra, 16 NRC at 1326-27.
~
Subsequently, the Appeal Board determined that jurisdiction remains with the Licensing Board when a motion to reopen is filed after an Initial Decision is rendered but prior to an appeal.
Philadelphia Electric Company. (Limerick Generating Station, Units 1 and 2),
ALAB-726, 17 NRC (May 2, 1983) (slip op, at 3-4).
To the extent that the earlier decision in Point Beach found jurisdiction to exist for the Licensing Board to entertain a motion to reopen the Initial Decision even after Appeal Board review had been completed, that decision is irreconcilable with the more recent pronouncements in ALAB-699 and ALAB-726.
See Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 2),
ALAB-86, 5
AEC 376 (1972).
Under existing procedures today, the matters raised by intervenors in Point Beach would properly by the subject of a petition pursuant to 10 C.F.R. 52.206.
However, Section 2.206 was not adopted until well after the Point Beach decision.
See 39 Fed.
Reg.
12353 (April 5,
1974).
This may explain why the Appeal Board in that case felt compelled - to offer intervenors some appropriate forum for their assertions.
10/
Reply Brief by MVPP at 27.
l '
Appeal Board once it assumes authority to review the decision below by the filing of exceptions or the expiration of the sua sponte review period.
Much of MVPP's discussion examines whether its proposed late contentions relate to the matters decided by the Initial DecisionEI in this proceeding.
MVPP asserts that because its contentions do not relate to matters resolved by the Initial
- Decision, this Board has jurisdiction to consider them.
In its Initial
- Decision, however, the Licensing Board retained jurisdiction to rule upon MVPP's motion to admit its late contentions and to conduct any necessary.E Quite
- clearly, it further proceedings as follows that the Board's subsequent order of July 15, 1982 was a supplement to the Initial Decision and appealable on that basis.E Thus, MVPP entirely misses the point in arguing that its 1982 motion should not have been referred to the Appeal Board.E While the Licensing Board acted properly in retaining jurisdiction over the motion to admit late contentions for separate disposition, the Licensing M/
Zimmer, supra, LBP-82-48, 15 NRC 1549 (1982).
12/
- Zimmer, supra, LBP-82-48, 15 NRC at 1553.
See generally Applicants' Answer to MVPP's Motion to Reopen the Record at 8 (June 20, 1983).
M/
Applicants' Answer to MVPP's Motion to Reopen the Record at 17 n.29.
M/
Reply Brief by MVPP at 23.
i L
Board lost jurisdiction once the time for re m sidering that decision ended (i.e.,
the expiration of the time for filing exceptions per the decisions in Three Mile Island in ALAB-699 and Limerick in ALAB-726). E!
II.
MVPP's Reply Improperly States the Standard for. Late Contentions and Reopening and Does not Otherwise Satisfy Applicable Requirements Although MVPP would dismiss Applicants' insistence upon compliance with the applicable standards for reopening and admitting late contentions as so much "quibbl[ing]," El its characterization does not comport with the views of the Commission, which has stated that "the specificity and lateness requirements of 10 CFR 2.714 must be satisfied, where applicable, and the standards for reopening records satisfied, where applicable."EI MVPP's attempt to must be l
l 15/
As Applicants previously discussed, the Commission's denial of MVPP's petition for reconsideration may be interpreted to have extended this time, but certainly not until June 3, 1983.
See Applicants' Answer to MVPP Motion to Reopen the Record at 18-19.
M/
Reply Brief by MVPP at 31.
-17/
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 364 (1981)
(emphasis added).
MVPP asserts that the Commission's statement of these standards in Diablo Canyon, supra, is limited to cases seeking to reopen the record on TMI-related issues.
Reply Brief by MVPP at 49.
The
" relaxed standards" utilized by the Licensing Board in the Byron decision upon which MVPP relies involved a motion to reopen the evidentiary record-to introduce additional testimony on litigated contentions.
See Commonwealth Edison Company (Byron (Footnote Continued) l L
f
invent new standards by analogizing to the standard for granting summary dicposition under 10 C.F.R. 52.749 (c) reflects its misunderstanding of these requirements.E
- Thus, MVPP's insistence upon a right to a hearing simply on the basis of asserted factual disputes is entirely specious.
As the Commission most recently interpreted the criteria for accepting late filed contentions in the Catawba proceeding:
Section 189a. of the Atomic Energy Act does not provide an unqualified right to 1
a hearing.
Rather, the Commission is authorized to establish reasonable regulations on procedural matters like the filing of petitions to intervene and on the proffering of contentions." H/
(Footnote Continued)
Nuclear Power Station, Units 1 and 2),
Docket Nos.
STN 50-454 OL and STN 50-455 OL, " Memorandum and Order Setting Special Deposition Session" (May 12, 1983).
This is obviously'different from reopening a hearing to admit wholly new contentions.
Although the Board in l
Byron indicated parenthetically that the Commission's decision in Diablo Canyon pertained to TMI-related issues, nothing in Diablo Canyon indicates that its statement of the standards for reopening and late contentions should be applied solely to TMI-related issues.
1_8,/
Reply Brief by MVPP at 31-32.
19/
Duke Power Company (Catawba Nuclear. Station, Units 1 and 2), CLI-83-19, 17 NRC (June 30, 1983)
(slip l
op. at 6).
The Catawba and Shearon Harris decisions upon which MVPP relies at page 31, note 51 of its Reply Brief do not, as MVPP asserts, hold that a reopened hearing is required by the Atomic Energy Act any time an intervenor raises a factual dispute regarding a significant safety issue.
1 i
Accordingly, the self-serving declarations by MVPP that its charges are in " bitter dispute"E and that Applicants and MVPP hold " opposite positions"- -
are immaterial.E Before addressing the applicable criteria under 10 C.F.R. 52.714 (a) (1) (i)-(v) for admitting late contentions, MVPP offers a distorted discussion of Applicants' legal position.
- First, it asserts that Applicants deny "the M/
Reply Brief by MVPP at 32.
21/
Id.
---22/
Insofar as MVPP moves for discovery prior to acceptance of its contentions, this relief is unavailable under the Commission's rules, which provide that discovery may commence only after the prehearing conference at which the contentions in issue are heard.
See 10 C.F.R.
S2.740 (b) (1).
Discovery prior to the allowance of contentions is impermissible under the Commission's rules.
Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
ALAB-687, 16 NRC 460, 468 (1982);
Detroit Edison Company (Enrico Fermi Atomic Power
- Plant, Unit 2),
LBP-78-37, 8 NRC 575, 579 (1978);
Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, l
191-92 (1973).
I l
MVPP also claims to have been " frustrated by (Alppli-cants' consistent refusal to speak with active Zimmer critics," presu.nably including MVPP.
Reply Brief by MVPP at 33.
MVPP ignores the fact that Applicants' reports and responses to the NRC's inquiries (for example, its voluminous Response of The Cincinnati Gas
-et al.
to the NRC's Demand for l
& Electric Company, Information (February 3, T983)
("CG&E Response to the NRC Demand for Information")) provided a public record of Applicants' answers to its critics.
As CG&E Senior Vice President for Nuclear Operations, Joe Williams, Jr.,
stated in a public letter dated June 1,
1983 addressing such concerns, "we will accept constructive and professional criticism and will sit down and talk with those who have concerns" (page 3) (copy attached).
i
- possibility of jurisdiction beyond the immediate aftermath of an initial decision," thereby inferring "that there is no legal basis" for the criteria to admit late contentions.EI To the contrary, there is no question but that jurisdiction exists for the Licensing Board to decide matters within its e
Initial Decision prior to the expiration of the time for filing' exceptions.
Related matters must thereafter be considered by the Appeal Board.
The question, which MVPP consistently sidesteps, is not whether jurisdiction exists, but whether it lies with the Licensing Board.
The simple fact is that MVPP waited too long in requesting further relief before the Licensing Board.
Another fallacy is MVPP's claim that because allegedly "new" evidence has been gathered in support of the same eight contentions since its previous
- motion, they are somehow transformed into something "new,"
even though MVPP concedes that this evidence could have been " identified and alleged last year."E This argument is squarely contrary to the Commission's recent holding in
- Catawba, which emphasized "a
petitioner's obligation to examine the publicly available documentary material pertaining to the I
facility. in question with sufficient care to erable it to uncover a_ny information that could serve as the foundation n
2_3/
Reply Brief by MVPP at 34, 24/
Reply Brief by MVPP at 35.
t i
-.-,-,.n,~
\\ for a
specific contention.E!
The Commission stated unequivocally that the rules governing acceptance of late contentions " require intervenors to diligently uncover and apply all publicly available information to the prompt formulation of contentions."El As the Commission summarized, "intervenors are expected to raise issues as early as possible."EI
- Thus, the mere assertion by MVPP that it has more evidence to support its contentions does not justify 4
inexcusable tardiness in initially failing to present its contentions "as early as possible."
The Licensing Board has already held that such inexcusable lateness occurred.28/
Applicants now discuss the various arguments made by MVPP under the Commission's criteria for admitting late contentions.
1.
No good cause shown.
MVPP's assertion of good cause boils down to its receipt of information and M/
Catawba, supra, CLI-83-19 (slip op.
at 6)
(emphasis added).
26/
Id. at 11 (emphasis added).
27/
Id. at 13.
28/
Zimmer, supra, LBP-82-54, 16 NRC 210, 213-14 (1982).
MVPP's analogy of its contentions to a newborn baby (Reply Brief by MVPP at 36) may be more apt than it realizes.
Just as a newborn baby is the same person as it grows to maturity, MVPP's initial contentions remain the same even though additional documents are cited in support of them.
4 affidavits subsequent to its obtaining affidavits in March EI and its alleged reticence to
" attack and April 1982 Commission initiatives before giving them a
chance to work."E Under the Commission's recent Catawba ruling, however, it was incumbent upon MVPP to move promptly once it obtained information supportive of its contentions rather than determine for itself unilaterally that acting promptly would be " unreasonable and self-defeating" because MVPP had not yet " lost faith" in the programs at Zimmer.EI In
- Catawba, the Commission squarely addressed the lamentations offered by MVPP here, for example, that the issues "were complex and new for a citizen intervenor" which only had a small legal staff.EI The Commission stated:
We start with the basic principle that a
person who invokes the right to participate in an NRC proceeding also voluntarily accepts the obligations attendant upon such participation.
And as a corollary, since intervenors j
have the options to choose the issues on which they will participate, it is reasonable to expect intervenors to shoulder the same burden carried by any other party to a Commission proceeding.
While we are sympathetic with the fact that a party may have personal or other obligations or possess fewer resources j
than others to devote to a proceeding, this fact does not relieve that party of l
2_9/
Reply Brief by MVPP at 37.
30/
Id. at 38.
El M.
l 32/
Id. at 37.
t
its hearing obligations.
Thus, an intervenor in an NRC proceeding must be taken as having accepted the obligation of uncovering information in publicly available documentary material.
State-ments that such material is too volumin-ous or written in too abstruse or technical language are inconsistent with the responsibilities connected with participation in Commission proceedings
- and, thus, do not present cognizable arguments.
Taken
- together, these principles require intervenors to diligently uncover and apply all publicly available information to the prompt formulation of contentions.
Accordingly, the institutional unavailability of a
licensing-related document does not establish good cause for filing a
contention late if information was available early enough to provide the basis for the timely filing of that contention.
In conclusion, intervenors are expected to raise issues as early as possible.
To the extent that this leads to contentions that are superseded by the subsequent issuance of licensing-related documents, those changes can be dealt with by either modifying or disposing of the superseded contentions.3_3/
In conjunction with the authorities previously cited by Applicants, the Catawba ruling effectively disposes of MVPP's argument that it had an implied right to judge for itself the success of the various programs initiated at l
33/
Catawba, supra, CLI-83-19 (slip op. at 10-14).
l 5
i l
[
U
Zimmer, or to await and rely upon various documents to be generated by Applicants or the Staff before proceeding with its filing of. "new" contentions.E!
Notwithstanding its claims of self-restraint, NRC precedents, including the recent Catawba decision, simply do not permit a party the luxury-of assuming such a posture.E
--34/
For example, it is irrelevant whether three months was a " reasonable" length of time for MVPP to review CG&E's Response to the NRC Demand for Information or.whether j
the NRC NET Report, NUREG-0969 (April 1983) provided MVPP with any support for its allegations.
As the Commission
- stated, "the unavailability of
[such]
documents does not constitute a showing of good cause for admitting a late-filed contention when the factual predicate for that contention is available from other sources in a timely manner."
Catawba, supra, at 2.
See also Philadelphia Electric Company (Limerick Generating Station, Units and 2) LBP-83-39, 18 NRC (July 26, 1983)
(slip op. at 3).
In this regard, MVPP pursues its rather fanciful theory that the mere contradiction of Applicants' answers to its charges constitutes " good cause" entitling it to a hearing.
Reply Brief by MVPP at 39.
See pages 8-9, supra.
3_5_/
MVPP attempts to distinguish the cases cited by 5
Applicants for the proposition that a party may not sit on the sidelines in the hopes that the NRC Staff will adequately protect an interest which would otherwise justify intervention.
See Reply Brief of MVPP at 40-42.
Contrary to MVPP's assertion, petitioner in the Perkins case asserted that the NRC Staff had made deliberate misrepresentations to - the Licensing Board and that his intervention was necessary to have all facts material to the inquiry presented.
Affirming the denial of intervention, the Appeal Board corrected "the misapprehension" that tardy intervention was permissible to correct such alleged misrepresentations.
Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615, 12 NRC 350, 353 (1980).
The same proposition is supported by the holding in Indian Point that "a
petitioner may not rely upon its interests being represented by another.
Consolidated (Footnote Continued)
4.
2.
Other means to protect MVPP's interest.
MVPP's
" reply" on this point simply questions the competence and integrity of the NRC Staff in its oversight of quality assurance practices at Zimmer.
MVPP's subjective views of the Staff's proficiency are irrelevant.
In adopting and implementing the various programs at Zimmer to confirm and verify the quality of installed hardware and to assure the completion of all safety-related construction in a quality manner, the Commission has determined that oversight by the NRC Staff, without the necessity of further hearings, will sufficiently protect the interests of the public, including MVPP.
See Zimmer, supra, CLI-82-33, 16 NRC (November 12, 1982)
(" Order to Show cause").
(Footnote Continued)
Edison Companv (Indian Point Station, Unit No.
2),
LBP-82-1, 15 NRC 37, 39 (1982).
As for the decision in Skagit, upon which MVPP relies at pages 41-42 of its reply, MVPP has overlooked the importance the Appeal Board placed upon the failure of l
petitioners to "present a clear picture as to precisely when, and by what means, they discovered (if they did) that a
misrepresentation or non-disclosure of a
material fact had occurred (and what it was).
Needless to say, the time element assumes crucial importance in judging whether the (petitioners]
were justified in (the late filing]."
Puget Sound Power and Light Company (Skagit Nuclear Power Project, Units 1 and 2),
ALAB-552, 10 NRC 1,
10 (1979),
vacated as
It is this defect which both the Licensing Board and Commission have noted as i
fatal to this attempt by MVPP to demonstrate good I
cause.
Zimmer, supra, LBP-82-54, 16 NRC at 213-14; Zimmer, supra, CLI-82-20, 16 NRC at 110.
I
q
- Any' further interest MVPP has in this matter can therefore be adequately protected by participation in the public meetings regarding implementation of the Commission's Order to.Show Cause and by the filing of a petition for relief under 10 C.F.R.
S2.206. b While MVPP is not persuaded that the Staff will adequately undertake and perform its important delegated responsibilities at Zimmer, the specialized focus which the Commission is giving the Staff's activities at that site ens'res that the Staff will u
fully protect any interest MVPP might have in the outcome of this proceeding.
3.
No demonstrated ability to assist the Board in developing a sound record on technical quality assurance issues.
As Applicants have previously noted, MVPP has shown a facility for amassing quantities of documents generated by the Applicants, its constructor and subcontractors, the NRC Staff and other regulatory agencies.
Nonetheless, MVPP has
.not shown the requisite competence by training, education or experience in the technical quality assurance issues it
-36/
It is noted that the Director, Office of Inspection and Enforcement, granted in part and denied in part a Section 2.206 petition by MVPP in
- Zimmer, supra, DD-83-02, 17 NRC (February 10, 1983), which the l
Commission let stand by declining review on June 6,
l 1983.
- Further, the Commission recently referred a j
letter from MVPP to the Director to be treated as a new request under Section 2.206.
See letter from James Lieberman, Office of the Executive Legal Director, to Troy B.
- Conner, Jr.,
dated June 27, 1983 (copy attached).
l l
l
. - -. =.
7
- would address.
The fact that MVPP has presented affidavits to the Licensing
- Board, which in its view disclose
" evidence," does not establish such qualifications.EI 4.
Adequate representation by the NRC Staff.
Inasmuch as MVPP did not address this particular requirement, there is nothing_ for Applicants to refute.
The discussion by Applicants of this point in its initial brief remains unanswered.3_8,/
5.
Creation of new issues and inevitable delay of the proceeding.
On this
- point, too, Applicants' position remains unrebutted by MVPP's reply.
There appears to be no disagreement with the proposition that the litigation envisioned by MVPP could, in fact, extend several years.'
Essentially, MVPP attempts to shift the blame to Applicants for MVPP's delay in timely presenting its contentions to the Licensing Board.
The Commission ruled in Catawba, however, that a
petitioner has no right to delay the prompt submission of its contentions once their factual predicate is available from any source simply because the petitioner, E/
Reply Brief by MVPP at 46.
See generally Mississippi Power & Light Comoany (Grand Gulf Nuclear Station, Units 1 and 2), AMB-704,
16 NRC (December 8,
1982) (slip op. at 9-10).
MVPP attempts to obscure its lack of any real showing on this point by accusing Applicants and the Staff of withholding information.
Aside from being irrelevant, this claim is entirely unsubstantiated.
M/
Applicants' Answer to MVPP's Motion to Reopen the Record at 36-39.
m for whatever reason, chooses to await the receipt of other documents.E
- Thus, fault for delay lies squarely with MVPP, not Applicanto.
MVPP concedes that its satisfaction of the separate requirements for reopening rests upon its assertions regarding admission of the late contentions.
Accordingly, very little has been added in this discussion by MVPP.
Its plea that the Licensing Board ignore its extreme tardiness because of the alleged existence of a significant safety issue, however, is premised on the mistaken belief that its concerns will not receive proper attention unless a hearing is held.S MVPP has not discussed the third factor for reopening, i.e.,
whether MVPP has established' that a
39/
Catawba, supra, at 2, 11-12.
40/
See pages 15-16, supra.
MVPP relies upon the holding in the Summer proceeding disallowing a late contention where the intervenor did not allege and the Licensing j
Board did not see "any support for such an allegation, that there is any danger that the alleged deficiencies will go uncorrected" by the NRC Staff.
South Carolina Electric and Gas Company (Virgil C.
Summer Nuclear Station, Unit 1), Docket No. 50-395-OL, " Memorandum and Order" (April 28, 1982) (slip op. at 4).
Although MVPP emphasizes that the intervenor there did not allege that certain deficiencies would go uncorrected by the Staff, it fails to give any weight to the Licensing Board finding that there was no support for such an allegation.
For MVPP to conclude that there is a danger that alleged deficiencies at Zimmer will go uncorrected is to challenge the appropriateness and efficacy of the Commission's Order to Show Cause (November 12, 1982), a matter which this Board may not entertain.
l
_ ~ - ~
l different result would have been reached initially had its contentions been considered.S/
Finally, MVPP's analysis of Marble Hill is off the mark.SI The important policy of the Commission.
in encouraging licensees to accede to its enforcement actions would be equally thwarted by subjecting an applicant to any adjudicatory hearing with the potential for diversion of resources, additional delay and other adverse consequences, whether the hearing relates directly to the enforcement sanctions themselves or constitutes a separate, collateral litigation of the same issues.
III.
The Affidavits Proffered Late by MVPP Discuss Areas of Concern Long Since in the Public' Record As discussed above, MVPP has attempted to come forward with "new" allegations regarding quality assurance practices at Zimmer in order to camouflage the fact that the same contentions, as initially pleaded, could have and should have been more promptly submitted.
The mere allegation of "new evidence" or " illustrative examples"SI simply cannot nullify the previous determination by the Licensing Board 41/
See Applicants' Answer to MVPP's Motion to Reopen the l
Record at 41 n.81.
42/
Public Service Company of Indiana (Marble Hill Nuclear l
Generating Station, Units 1 and 2), CLI-80-10, 11 NRC
- 438, 441 (1980).
See Applicants' Answer to MVPP's Motion to Reopen the Record at 45 n.91.
M/
Reply Brief by MVPP at 3.
l l
L
that the underlying predicate for the contentions previously existed in the public record and was not timely pursued by MVPP,W as required by Catawba.
MVPP very carefully avoids discussing the time frame of the events on which its charges are based.
It is beyond argument that there were significant quality assurance problems at the Zimmer Station.
These problems resulted in the imposition of a civil penalty in November 1981 and ultimately in the issuance of the Order to Show Cause by the Commission in November 1982.
Applicants consented to each of these enforcement actions.
The Order to Show Cause, other actions mandated by the Commission, and ongoing programs are designed to assure that the quality assurance problems at the Zimmer Station were closely scrutinized, that the root causes were identified and that an organization and plan emerged which would allow the comple' tion of the Zimmer Station.
The Commission established detailed requirements for an independent management review, a comprehensive plan for the verification of the quality of construction, including a requirement for an independent audit, and a plan for the completion of i
construction.
Built into the Commission's scheme of requirements for Zimmer are public meetings and methods for securing public input.
The Commission has found that if 4_4_/
Zimmer, supra, LBP-82-54, 16 NRC at 213-14.
l
1.
successfully implemented under the scrutiny and direct supervision of its Staff, safety-related construction may resume and be completed.
In devising the requirements contained in the Order to Show Cause, the Commission was aware of the type of matters being raised in the affidavits submitted by MVPP in its latest pleading, for example, questions concerning proper (Inprocess Inspection Deficiency Report).45/
use of an IIDR The affidavit which discusses this matter adds absolutely nothing in the way of new information.
A review of the affidavits demonstrates that their concerns are being addressed under the Commission's Order to Show Cause and
'f the public record in sufficient were previously part o
scope as to have permitted the formulation of proposed contentions at a much earlier date.
All but three of the 50 allegations discussed by MVPP in its
- brief, presumably those it considers most significant, derive from the affidavits of three individuals.
MVPP relies upon the affidavit of Mr. David Jones,5!
a former Kaiser employee at Zimmer.
On its face, l
the affidavit purports to review the contents of the CG&E l
l 45/
As discussed at pages 25-26, infra, this matter was raised by MVPP's counsel at a
Commission briefing meeting on June 16, 1982 and addressed in subsequent correspondence by MVPP and Applicants.
46/
See Reply Brief by MVPP at 511, 11, 13, 21, 26, 28, 30,
'3T~36 and 49.
Response to the NRC Demand for Information filed on February 28, 1983, which addressed, at the request of the NRC, the various allegations contained in the MVPP Petition to Suspend Construction of the Zimmer Station, filed August 20, 1982.
Accordingly, each of the matters addressed by Mr.
- Jones, except his withdrawn complaint filed with the Department of Labor,E!
necessarily predates that MVPP filing.
While Mr. Jones addresses a variety of arguments, his differences with Applicants regarding their responses are clearly argumentativeEI or related to personal disagreements with Kaiser management.
In sum, each of the 47/
MVPP protests that Mr. Jones was indeed a victim of 3
retaliation and that no inference should be drawn from the fact' that he withdrew his complaint before the Department of Labor owing to alleged dissatisfaction i
with its investigative procedures.
(Reply Brief by MVPP at 14, 136).
Jones admits that the NRC found i
nothing to substantiate his allegations and asserts that its negative findings puts the NRC "in a
conspiracy position with the problems at this project."
Jones Affidavit at 6.
M/
For example, MVPP accuses Applicants of attempting to avoid problems by relaxing quality assurance requirements (Reply Brief by MVPP at 12, 127), citing Jones' analysis of Applicants' explanation of why the requirement for a
high school degree was properly eliminated for certain personnel under ANSI requirements.
Mr.
Jones simply challenged this explanation as " totally false," and speculated that the l
change was instituted "to avoid further noncompliance l
and conceal past noncompliance," which the "NRC must have recognized Jones Affidavit at 10.
The remainder of Mr.
Jones' affidavit follows the same pattern of
- innuendo, conjecture and personal subjectivity.
matters raised by Jones derives from his work experience at Zimmer, which terminated in July 1982.
His charges, which largely formed the basis of MVPP's petition in August 1982 to halt Zimmer construction, are therefore untimely on their face.
Another affiant whose affidavit is discussed in MVPP's E!
is Richard Reiter.
Like Jones, Reiter concedes reply that he submitted prior affidavits on these matters in support of the MVPP petition to halt construction filed on August 20, 1982, and that the instant affidavit is in reply to CG&E's
Response
to the NRC Demand for Information.
Virtually all of the issues addressed in his affidavit can t* aced to NRC Investigation Report No.
50-358/81-13, be' r
issued on November 24, 1981.
As the Board is well aware, a Quality Confirmation Program
("QCP")
was initiated by Applicants in response to these concerns as outlined in the NRC's Immediate Action Letter of April 8, 1981.
The items which are discussed by Reiter have therefore long since been 1
identified and included in the QCP,-
for example, weld quality (Task II),
heat number traceability (Task III),
radiographic techniques (Task V),
nonconformance reports l
49/
See Reply Brief by MVPP at 113-10, 14, 22-25, 29, 39, TT and 50.
(.
-50/
See Letter dated August 21, 1981 from E.A.
Borgmann to J.G.
Keppler, with attached statement of the Zimmer QCP, which is Exhibit 17 to Investigation Report No.
50-358/81-13 (November 24, 1981).
l l
L
24 -
(Task VII), design control and verification (Task VIII) and design document changes (Task IX).
In some instances, even the specific document which concerns Reiter was discussed in i
. the NRC's 1981 Investigation Report.b Reiter's subjective views of Applicants' answers to MVPP's original charges filed in August 1982 add nothing new to the picture.
On its face, the affidavit of Sherrill J. Nolder, which I
MVPP also cites in its reply,b deals with a Kaiser report i
prepared by the affiant and distributed on October 28, 1981 (Nolder Affidavit, Exh.
10).
Like the other
- affiants, Nolder discusses certain qu'ality assurance issues which have previously been identified and which are encompassed within j
ongoing confirmation and verification programs at Zimmer.
For example, the upgrading of structural steel originally purchased 'as non-essential is being reviewed under QCP, Tasks I and III.
The Nolder Report formed the basis of saveral allegations by MVPP in its August 20, 1982 petition I
to halt construction at
- Zimmer, as indicated by CG&E's response to the NRC Demand for Information, answering 1147, 48 and 88.
Although MVPP attempts to obfuscate its failure 51/
.At pages 26-28 of his affidavit, for example, Reiter discusses SR 2819, which is discussed in the Report at pages 5-6 of Attachment A.
At page 40 he discusses NR E-2191, which was discussed at pages 10-12 of Attachment A of the Report.
. 52_/
Reply Brief by MVPP at 112, 12, 15-20, 37, 38, 43-45, 48.
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to raise these matters by contentions earlier by focusing upon Nolder's dispute with Kaiser officials over the disposition of her findings, there is no showing that MVPP has timely raised the matters contained in this report or that the report raised, for the first time, the kinds of problems that MVPP discusses.
The remaining affidavits filed by MVPP also fail to indicate when MVPP came in possession of the information discussed in the affidavit or in what respects the information is "new."
On their face, the affidavits are largely argumentative E and merely cite additional
" examples" of concerns which have been identified in documents generated by Applicants or the Commission in the public record.
For
- example, Affidavit 1
(dated August 26, 1982) alleges concerns related to problems with inspection procedures for utilizing IIDR's.
This matter was fully discussed by Applicants in CG&E's Response to the NRC Demand for Information, specifically, the answers to MVPP's allegations in 1156, 99, 122 and 169-172 of its August 20, 1982 petition.
The question of the proper use of IIDR's was 53/
For example, Affidavit 1 states at pages 1-2 that
" professional ethics [do] not exist at Zimmer" and that quality control is a " facade."
Affidavit 5 states at page 3 that "anyone who refused to do shoddy work would be dismissed. "
Affidavit 6 alleges at pages 2-3 that
" lack of qualified personnel helps management circumvent.
. requirement (s]."
e
f i,.
brought up at length during the meeting before the commission on June 16, 1982 (Tr.
68-69, 78-89),
which resulted in correspondence from both MVPP's counsel and an official of CGEE.E The affiant's allegations of harassment and intimidation present nothing not already fully identified and investigated by the NRC in 1981.EI
- Overall, a comparison of their dates and subject matter indicates that Affidavits 1,
2, 3 and 4 were previously furnished to the NRC by MVPP in support of its August 20, 1982 petition under Section 2.206.EI Affidavit 2
(dated October 4,
1982) is primarily concerned with welder qualifications and material traceability records.
Each of these matters has previously been identified as a
concern by the NRC.
Welder qualifications are being reviewed under QCP, Task II, while j
material traceability is being addressed under QCP, Tasks I M/
Letter dated August 27, 1982 from Ralph Sylvia, CG&E Vice President, Nuclear Operations, to Chairman Nunzio J. Palladino.
This responded to a letter dated July 9, 1982 from MVPP on this subject to the Commission.
55/
See Investigation Report No. 50-358/81-13 at Section TT.
Quality control and quality assurance independence were further addressed in CG&E's Response
'to the NRC Demand for Information, replying to MVPP allegations 1197-100.
5_6/
See Supplement to MVPP August 20 Petition to Suspend Construction of the Zimmer Station (October 18, 1982).
1 s s
and III.
The affidavit merely rehashes items which were long ago identified in the implementation of these tasks.
(dated September 22, 1982),
4 (dated September 24, 1982) and 9
(dated July 11, 1983) are apparently from employees of Catalytic, Inc.
Problems associated with certain Catalytic work activities were recognized first by Applicants, which subsequently issued stop work orders.
The investigations by the NRC and Applicants of the concerns regarding deficiencies with the Catalytic program are fully discussed in the November 12, 1982 Order to Show Cause. b Affidavits 5 (dated October 23, 1982) and 7 (dated January 10, 1983) are also primarily concerned with wolder qualifications and rework on welds.
As noted above, these matters are being addressed under appropriate QCP Tasks.
These matters were also previously addressed in CG&E's Response to the NRC's Demand for Information, answering MVPP's allegations in 11142-45, 150, 151, 156-57, 187 and 188.
-57/
Zimmer, supra, CLI-82-33 (slip op. at 9-11).
On July 27, 1983 CG&E received a package of the logs apparently described in Affidavit 3 at page 4 and Affidavit 4 at page 8.
These were immediately delivered to CG&E, which is now reviewing
- them, as it does with any material brought to its attention relating to the quality of the
- facility, to determine whether any appropriate action need be taken.
As regards MVPP's motion, however, it was well aware of the existence of these materials from the statements of its own affiants, but did not provide them with its pleadings.
w Affidavit 6 (dated October 24, 1982)S_8,/
also addresses the use of IIDR's and quality record deficiencies which, as noted above in response to Affidavit 1,
have already been addressed by Applicants.
The proper preparation and disposition of nonconformance reports (NR's) was thoroughly investigated and discussed in Investigation Report No.
50-358/81-13, Attachment A.
The specific charges raised by MVPP earlier were addressed in CG&E's Response to the NRC's Demand for Information, answering MVPP's allegations in 11158-167 and 173-74.
As noted above, concerns regarding material traceability have been taken up under QCP, Tasks I and III.
These matters were also addressed by Applicants in CG&E's Response to the NRC Demand for Information answering allegations in 1145, 47-50, 51 and 130, 54 and 265-267.
George Kreidler's affidavit (Affidavit 8,
dated March 11, 1983) alleges that the use of certain reamers to install electrical conduits fabricated onsite at Zimmer " violates the National Electrical Code requirements."
While it would appear that this is a new matter, there is simply no basis for the allegation inasmuch as the National Electrical Code pe s_e,is inapplicable to Zimmer.
The question of the 58/
The affiant states at page 1 of his affidavit that he previously provided a statement on these matters to MVPP's counsel on August 20, 1982, which was later signed and notarized.
59/ -Affidavit of George Kreidler at 1.
a
.. y applicability of this code to Zimmer had been previously 3
addressed by -the Bcard as far back as August 1979.
In response to an allegation of electrical deficiencies submitted by MtPP, the Staff conducted an investigation which specifically concluded that the National Electrical Code does not apply - to the Zimmer facility.SI This Board adequate.b!
concluded that the Staff investigation was
..Moreover, the allegation is based upon the affiant's work at 4
Zimmer from October 1981 to November 1982.
Although there is no statement as to when MVPP was provided the information, the affidavit predates its submission by i
approximately four months.
The remainder of the affidavit deals with material traceability problems, which have been discussed above.
Affidavit' 9 (dated July 11, 1983) states that the affiant has no-personal knowledge of the matters discussed but rather is
" passing on those allegations from other workers such as a construction fo' reman and a frustrated CG&E Quality Control (QC) inspector. " 6_2,/
The affidavit is primarily concerned with overfilled cable trays, which was a matter also previously raised on the record by MVPP in 1979.
60/
Direct Testimony of Jack Hughes and Thomas E.
Vandel
~--
Regarding Electrical Deficiencies, Tr. following 3116 at 5.
g/
Zimmer, supra, LBP-82-48, 15 NRC at 1556.
7 6_2_/
Affidavit 9 at 1.
l
- In its investigation in' August 1979, which the Board found to be adequate, the Staff determined that the overloading condition had been previously identified and was being adequately resolved.SI Applicants believe that this illustrates the danger of relying on hearsay and the difficulty in dealing with unfounded jobsite rumors.SI Again, nothing in the affidavit indicates when any of this information became available to MVPP.
In sum, the affidavits upon which MVPP principally relies only amount to an argumentative rebuttal of the answers by Applicants to the charges originally filed by MVPP in its August 20, 1982 petition to halt construction at Zimmer.
The other affidavits, which studiously eschew the discussion of relevant time periods for when information was furnished to MVPP, also have their genesis in earlier matters previously investigated by Applicants and the NRC Staff which resulted in the formulation of ongoing quality confir;:L* tion and verification programs at Zimmer.
Despite ample opportunity to do so, MVPP has failed to show that it has brought these matters before the Licensing Board "as early as possible." S g/
Supra, note 61 at 5-7.
"'-64/
This affiant also erroneously claims that the National Electrical Code applies to Zimmer.
Affidavit 9 at 3.
M/
Catauba, supra, CLI-83-19 (slip op. at 13).
e Conclusion For the' reasons discussed above, the Licensing Board lacks jurisdiction to hear the motion by MVPP to reopen the closed record for the admission of its eight late contentions.
In any
- event, MVPP has wholly failed to satisfy the Commission's mandatory standards for reopening and late contentions.
Its documentation, like the materials it previously filed in support of the motion denied last year by the Board, " fails to tell us when [MVPP) learned the information"SI or how the information has any independent significance in identifying a "new" matter.
In any event, each of these matters is being pursued by Applicants under ongoing programs and close review by the Staff as directed
-by the Commission in its Order to Show Cause.
Further hearings would add nothing to the ultimate resolution of outstanding issues prior to resumption and completion of safety-related construction at Zimmer and issuance of a g/
Zimmer, supra, LBP-82-54, 16 NRC at 213.
full-power operating license.
Accordingly, MVPP's motion should be denied.
Respectfully submitted, CONNER & WETTERHAHN, P.C.
Nt j ha f Troy B. Conner, Jr.
Mark J. Wetterhahn Robert M. Rader Counsel for the Applicants August 3, 1983
,--ne--
=-,,
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the-htomic Safety and Licensing Board 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' Response to Reply Brief by Miami Valley Power Project in Support of Motion to Reopen the Record and Applicants' Answer to Motion to Permit Discovery," dated August 3, 1983, in the captioned matter, have been served upon the following by deposit in the United States mail this 3rd day of August, 1983:
Alan S. Rosenthal, Chairman Dr. Frank F. Hooper Atomic Safety and Licensing Chairman of Resource Appeal Board Ecology Program U.S. Nuclear Regulatory School of Natural Commission Resources Washington, D.C.
20555 University of Michigan Ann Arbor, MI 48104 Stephen F. Eilperin Atomic Safety and Dr. M. Stanley Livingston Licensing Appeal Board Administrative Judge U.S. Nuclear Regulatory 1005 Calle Largo Commission Sante Fe, NM 87501 Washington, D.C.
20555 l
Chairman, Atomic Safety Howard A. Wilber and Licensing Appeal Atomic Safety and Board Panel Licensing Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Chairman, Atomic Safety Judge John H. Frye, III and Licensing Board Chairman, Atomic Safety and Panel Licensing Board U.S. Nuclear Regulatory U.S.-Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 i
l A
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.
Vice 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 Stephen H. Lewis, Esq.
Federal Emergency U.S. Nuclear Regulatory Management Agency Commission Region I Region III John W. McCormick POCH 799 Roosevelt Road Boston, MA 02109 Glen Ellyn, Illinois 60137 i
l Robert M. Rader cc:
Robert F. Warnick
[
Director, Enforcement l
and Investigation l
NRC Region III l
799 Roosevelt Road Glen Ellyn, Illinois 60137 L
l
m a
i f L.,- -f 2s THE CINCINNATI GAS & ELECTRIC COMPANY ad '
cmcinnm.o no 4smoi June 1, 1983 fg ; **
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5 1983 s, d?
Reader's Views
'"'CKEnxc a The Cincinnati Enquirer
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617 Vine St.
Cincinnati, Ohio 45201 (m
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Dear Sir:
It has been five weeks since I assumed the responsibility within The Cincinnati Gas & Electric Company for completing and operating the Wm. H. Zimmer Nuclear Power Station.
During that period, I have managed, with the help of some very pro-fessional people within and without the CG&E organization, including personnel of the NRC, the National Board and the Boiler Inspector Department'of the State of Ohio, to arrive at a respectable understanding of the problems we face and what must be done to achieve our objective;.i.e. finish construc-tion of Zimmer in a manner assuring its integrity and operate and maintain it with highly trained personnel such that the safety of operators and populace is guaranteed and the economic benefits to consumers maximized.
The issues we must resolve and the problems we must solve enroute to our objective are not impossible, nor overwhelming.
The types of technical, engineering and management issues involved have been encountered before and successfully resolved by a sufficiency of talented people working within the framework of an efficient organization.
That is not to say that accomplishing the task will be easy.
On the contrary, it will be difficult and tedious, made the more so because our every move will be illuminated, analyzed and commented on by organizations who are expressing a variety of concerns regarding Zimmer.
We hope that such involvement will be objective and professional so that unnecessary and frivolous delays with their attendant costs will not be foisted on the Consumers.
I can assure all interested organizations that contrary to the assertions in the paper last Thursday, there are no SECRET management actions being taken at Zimmer.
Given the public interest, anyone who thinks anything having to do with Zimmer can be done in secrecy is naive indeed.
I have proceeded from my first day under the assumption that anything we do or say will rapidly become public, and under the circumstances that's probably as it should be.
f) m s
Reader's Views 2
June 1, 1983 In passing, I might add that none of the intervenors
- bothered to call us concerning issues of secrecy, and such lack of inquiries seems rather unprofessional and lacking in objectivity.
Let me tell you a little of what we are doing.
First, we are not sitting on our hands waiting for someone to tell us how to discharge our responsibilities to the public.
As responsible managers, we have been analyzing our organization, personnel requirements and operating methodology to identify needed management actions.
We are also developing our concepts of what will be required to satisfy the Show Cause Order and achieve the objective stated above so as to be in a position to move without costly delay when the Torrey Pines report becomes available for our consideration.
It should be noted that,the Torrey Pines effort will provide an assessment of CG&E's management of Zimmer and recommend management concepts and actions that can be taken to provide for more effective management.
It is not an effort to determine the quality of the existing construction - that assessment will be addressed in the second phase of clearing the Show Cause Order by an organization such as Bechtel under the management direction of CG&E in accordance with a plan approved by the Nuclear Regulatory Commission.
By conducting our own internal review and analysis, we will be in a position when the Torrey Pines report becomes available to rapidly consider their recommendations, synthesize those with which we concur with our own conclusions, and present our propo-sals to the NRC for their consideration.
We may embrace every-thing Torrey Pines recommends, but it is not required, and it is rather unlikely that we will be in complete agreement.
What is required is for CG&E, with the assistance of Torrey Pines and an t
organization like Bechtel, to decide on, and present to the NRC l
for-their consideration, the most effective management organiza-l tion and methodology to use to determine and document the quality of existing construction, identify rework required, confirm i
construction yet to.be done, and then accomplish the rework and finish the construction.
t After an organization and methodology are agreed on, CG&E l
will provide whatever resources are required, manage the construction to completion and then operate the Plant.
Zinmer is a needed source of safe economical energy and it has been made apparent to me, through their supporting actions, that the three owners, The Cincinnati Gas & Electric Company, Dayton Power and Light company and Columbus and Southern Ohio Electric Company are determined to do whatever is required to properly construct and operate the Plant.
e e
,m-,we w
n
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a e
Reader's Views 3
June 1, 1983 1
Along the way, we will accept constructive and professional criticism and will sit down and talk with those who have concerns.
The Zimmer Project deserves your support and unemotional consideration of the views of those who oppose it.
Very truly yours, J
2
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oe williams, Jr O
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Troy B. Conner, Jr., Esq.
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Conner & Wetterhahn, P.C.
srcr.xnc"C" 1747 Pennsylvania Avenue, N.W.
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N Washington, D.C. 20006 Cear Mr. Conner:
This letter is sent in response to your letter of June 3,1983 to Samuel J.
Chilk, Secretary to the Comission, regarding recent correspondence the Ccmission has received from Thomas Devine of the Government Accountability Project as counsel for the Miami Valley Pcwer Project (MVPP) concerning the William H. Zimer Nuclear Power Station.
Your letter asked the Comission to treat MVPP's letter of May 25, 1983 as an unauthorized submission under the provisions of 10 C.F.R. 2.206(c).
If, however, the Ccmission chose to consider the matters raised by MVPP, you requested that the Cincinnati Gas
& Electric Company (CG&E) be permitted to reply.
The Comission has referred MVPP's letter to the staff for treatment as a new requea for action pursuant to 10 C.F.R. 2.206.
CG&E may choose, if it so desires, to formally reply to MVPP's allegations by means of a written response.
See Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), 003-22,10 NRC 728, 729 n.1 (1979). Any such response should be forwarded to the Director of the Office of Inspection and Enforcement with a copy to this office and to James G. Keppler, Regional Administrator, NRC Region III, 799 Roosevelt Road, Glen Ellyn, Illinois, 60137.
A copy of your response should also be sent to Mr. Devine.
Any response submitted by CG&E should be received promptly, otheraise the staff cannot assure that CG&E's comments will be considered in reaching its determination.
Please do not hesitate to contact me if I can be of further assistance.
- Sincerely, 4
James Lieberman Director ar.d Chief Counsel Regional Operations and Enforcement Divisien Office of the Executive Legal Director cc:
Thomas Devine, Esq.
Richard C. DeYoung, IE James G. Keppler, Reg. III eamne b}
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