ML20079F818
| ML20079F818 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 01/16/1984 |
| From: | Conner T CINCINNATI GAS & ELECTRIC CO., CONNER & WETTERHAHN |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8401190295 | |
| Download: ML20079F818 (24) | |
Text
- _ _ _ _ _ _ _ _ _ _ _ . - _ _ _ _ _ _ _ _ _ _ _ _ _
4
't
)
4 i
00CKETED USt!RC UNITED STATES OF A 'MERICA r,N 18 Ni 07 NUCLEAR REGULATORY COMMISSIO;p Before the Atomic Safety and Licensing Appeal Board In the Matter of )
)
The Cincinnati Gas & Electric ) Docket No. 50-358 Company, et al. )
)
(Wm. H. Zimmer Nuclear der )
Station) )
APPLICANTS' RESPONSE TO " PROPOSED ISSUES AND SUPPORT FOR MIAMI VALLEY POWER PROJECT CONTENTIONS" Preliminary Statement On December 9, 1983, the presiding Atomic Safety and Licensing Board (" Licensing Board" or " Board") in this proceeding heard oral argument from the parties on the motion by Miami Valley Power Project ("MVPP") for reconsid-eration of the Memorandum and Order issued September 15, 1983, denying MVPP's motion to reopen the record on its eight late quality assurance contentions.
At that time, the Board stated its concern, inter alia, that the propc. sed contentions "are generally too open-ended" (Tr. 8012). Accordingly, the Board instructed as follows:
Judge Frye: Okay. Why don't we say, give us your specific issues that you feel should be litigated and tell us which contention each one of those issues relates to.
I think it would also be helpful if you would identify the particular witnesses who would testify. Any I assume, in saying that, that you would be referring to affidavits that have
~
8401190295 840116 9 PDR ADOCK 05000358 G PDR b
e D
already been filed with us. [Tr.
8062-63]
On December 31, 1983, MVPP filed a 56 page document purporc-ing to designate specific issues and identify specific witnesses and their proposed testimony.
Far from alleviating the Licensing Board's concern over unfocused and open-ended contentions, MVPP's post-argument submittal confirms the Board's apparent apprehension in admitting MVPP's late contentions. The MVPP pleading is basically a more detailed reference to the same mattars raised in previous filings by MVPP since August 1982. In format and substance, it largely tracks the proposed late contentions MVPP filed in May 1982 and restated in its motion to reopen filed in June 1983. If anything, MVPP's recent pleading is even more a maze of vague, generalized allegations and a, priori conclusions than its previous statement of its contentions.
Accordingly, MVPP has wholly failed to comply with the Board's directive that it submit specific, focused issues to litigate. Based upon the other reasons more fully set out in the pleadings opposing reopening previously filed by The Cincinnati Gas & Electric Company, et al. (" Applicants" or "CG&E"), MVPP's motion for reconsideration should be denied.
Argument I. MVPP has not Complied With the Board's Order.
Preliminarily, Applicants wish to reiterate their strong objection to any procedure by which MVPP is afforded
- /
0 yet another opportunity to refine or supplement its eight i
late contentions, which were initially proposed in a motion filed on Msy 18, 1982. See Tr. 8057. As discussed below, MVPP has not provided the Board with specific, well focused contentions. Even assuming arguendo, however, that the requisite specificity exists, litigating 'MVPP's late con-tentions would serve no useful purpose. Irrespective of the results of any hearing, the status of licensing for Zimmer would be the; same as at presen't, i.e., no operating license
- i f$r the facility may be issued until all outstanding re-quirements of the Commission,/ i
.have been satisfied.
Additionally, MVPP's restatement of its contentions does not overcome its failure to meet the Commission's requirements for admitting late contentions and reopening a record as found by'the Licensing B,oard in its Memorandum and Order dated September 15, 1983. Nothing in MVPP's most recent submission cures the ma'jor deficiency in its con-tentions, that is, the absence of " good cause" for lateness asdeterminedkr the Board.
In particular!, a great many of the 105 " issues" raised by MVPP r'efer to its ' August 20, 1982 petition under 10 C . F'. R. S 2. 20 6 seeking to suspend cobstruction at Zimmer.
Onces again, MVP); seems to be changing positions. The 1_/ See ,The Cincinnati Gas & Electric Company (Wm. H.
Zimmer Nuclear Power Station), CLI-82-33, 16 NRC 1489 (1982).
f
allegations in its Section 2.206 petition were largely those contained in its original motion to admit its late con-tentions, which MVPP expressly abandoned as inexcusably late.1'/ ~Moreover, the October 18, 1982 supplement to MVPP's Section 2.206 petition contained nothing new.3_/ The remain-ing documents cited by MVPP in support of its " issues" were generated in the latter half of 1983. The Board has cor-rectly ruled that none of them contains "any allegations
. . . which raise new matters not within the contemplation of the 1982 contentions," and which " clearly could have been raised at least as early as the end of 1981, if not earli-er."AI Accordingly, MVPP's contentions as restated should similarly be denied.
Applicants agree, of course, with the Licensing Board that the open-endedness of MVPP's proposed contentions, in, and of itself, is sufficient justification for denying them.
Numerous Board decisions establish the necessity of pleading reasonably specific contentions which will bring litigable 2_/ See Zimmer, supra, " Memorandum and Order (Ruling on MVPP's Motion to Reopen the Record)" (September 15, 1983) (slip op, at 16).
-3/ See Zimmer, supra, DD-83-2, 17 NRC 323, 324 n.1 (1983).
That decision became final agency action on June 6, 1983 when the Commission declined review.
4_/ Zimmer,' supra, " Memorandum and Order (Ruling on MVPP's Motion to Roopen the Record)" (September 15, 1983)
(slip op. at 28-29).
~/4 u
'l issues . sharply in,to focus.5/ A party raising late con-tentions has a special obligation to present disputed issues with reasonable specificity and clarity sufficient to alert the Board and parties to intervenor's particularized con-cerns. Thus, the Appeal Board has held in Grand Gulf that an intervenor with late contentions should " demonstrate that it has special' expertise on the general subjects it seeks to i
raise. . . . When a petitioner addresses [the third criteri- ,
on for late contentions] it should set cut with as much sparticularity ' . as 'possible the precise issues it plans to cover, identify its ' prospective witnesses, and summarize their proposed testimony."6/ At oral argument, the Board reiterated these important requirements (Tr. 8011).
~
Far from providing the Board with greater specificity and' clarity, MVPP's restated contentions simply expands upon the approach it has previously taken in arguing for the admission ofLits eight late cohtentions.
Both its initial motion in 1982 and its currently ; restated eversion of the
' contentions make sweeping allegations which are apparently f
?
5/. See, e.g., Commonwealth Edison Company (Dresden Nuclear I Power Station,-Unit: No. lb, LBP-82-52, 16 NRC 183, 193 (1982); Long Island Lighting Comoany (Shoreham Nuclear Power Station,+ Unit. 1),'_LBP-81-18, 14 NRC 71, 75 (1981); Of f t.hois i Power Systems . (Manufacturing License for' Floating! Nuclear Power Plants), LBP-77-48, 6 NRC 249, 250-51' (1977).
U 6/ At oral argument, the. Board reiterated these important requirements (Tr. 8011)-.
J 4- I i j.
+
.f i
-- ____.__ __E_b_______________m _ _ _ _ _
f ,
justified on the basis of anecdotal information, virtually all of which has been brought to the attention of the NRC by Applicants under the various programs for confirming and verifying the quality of construction at Zimmer and complet-ing construction of the plant.
As counsel for the NRC Staff stated at oral argument, MVPP's allegations based on the information furnished by its witnesses are "merely examples of QC deficiencies which have already been determined when the Commission issued its . . .
show-cause order in. November of '82 stopping all construction. . . . . To continue to get additional examples of these deficiencies, which may be new ones as time goes on because the investigation la continuing and new information is coming out -
but even so, they are merely cumulative examples of deficiencies." (Tr. 8029) Thus, the restated contentions are no improvement over the old ones. They may provide more " examples," but they do not do anything more to clarify and define the precise issues which MVPP wishes to litigate.
Additionally, MVPP has restated those " issues" in a format which defies specificity and clarity. In support of each " issue," MVPP refers to one or more of some 26 sub-missions to the NBC, which themselves contain or refer to dozens of other documents, such as the affidavits of its
witnesses. In essence, the Board and parties are invited to review the referenced documents for themselves in order to construct an' appropriately specific, well focused con-tention. Whatever the authority of a licensing board to recast an intervenor's loosely worded contention to make it acceptable,8_f this Board certainly has no obligation to
" reconstruct the contentions to its satisfaction" as MVPP suggests,9/ or to sift through MVPP's referenced documents in search of supportive details. In many instances, the referenced document or affidavit simply repeats the gener-ality in the proposed contention such that it is not possi-ble to identify the particular problem asserted.
In sum, MVPP's recent submittal only serves to empha-size the total lack of form and boundaries to the litigation it seeks. MVPP frankly disclaims any intention to be 7/ See Appendix I, Proposed Issues and Support for MVPP Contentions (December 31, 1983).
-8/ Compare, e.g., Pennsylvania Power & Light Company (Susquehanna Steam Electric Station, Units 1 and 2),
LBP-79-6, 9 NRC 291, 295-96 (1979), with Carolina Power and Light Company (H.B. Robinson Steam Electric Plant, Unit 2), Docket No. 50-261-OLA, " Memorandum and Order (Report on Special Prehearing Conference Held Pursuant to 10 CFR 2.751a)" (April 12, 1983) (slip op. at 4);
Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), Docket Nos. 50-445 and 50-446, " Rulings on Objections to Board's Order of June 16, 1980 and on Miscellaneous Motions" (October 31, 1980) (slip op. at 7).
9/ Proposed Issues and Support for MVPP Contentions at 56 (December 31, 1983).
1 1
e
. . [
-. limited : 'to any 'particular issues, even the '105 it - has proposed.' Rather, MVPP states:~ !
i But 'this submission inherently cannot provide a full itemization of all issues 4
that should be litigated. The situation
. is too fluid. . . .-
1 LFurther, certain- significant ad-ditions to the record are guaranteed to occur. . . . [U]ndoubtedly it will be necessaryLto add or subtract from issues contained.in the list below.M/
Common sense and the Board's own experience, Applicants believe, lead ~ inexorably. to 'the conclusion that MVPP will attempt to' add, not subtract, issues. Notwithstanding the ;
j ruling by.the Commission that the Board should not-take up i Zimmer quality assurance issues sua sponte,11/ MVPP would have the Board conduct its own boundless review of any and all such matters.- Any such unrestricted review would be
- unproductive, inappropriate and violative of the Board's limited, delegated authority- to hear ' only contested issues which meet the Commission's regulations under. 10 C.F.R.
. . S2. 714 (b) on framing specific contentions.
MVPP's restated contentions also fail to comply with
, the Board's. requirement, derived from the Appeal Board L- ruling in -_ ~ Grand Gulf, ALAB-704, for the identification of witnesses and . a summary of their proposed testimony (Tr.
5 4
1 M/ ~ Proposed. Issues and Support for MVPP Contentions at 3 (December 31, 1983).
M/ -Zimmer, supra,.CLI-82-20, 16 NRC-109 (1982).
-, m-- ,_ . - . - . . - . - _ - . _ , _ - . , - , , - . _ . - , , . - . _ . - . _ . . . _ . - - , . _ , . _ - _ . , . . . _ . - . .
L 8011). Many " issues" rely solely upon generally pleaded allegations. Even where the affidavits of particular individuals have been designated, they are strung together with generalized pleadings. Accordingly, it is far from clear which allegations or portions thereof are supported by particular affidavits.NI On the other hand, allegations which are unambiguously attributable to certain individuals are too - anec_ dotal or conclusionary to raise any litigable issue.
Remarkably, MVPP relies upon certain affidavits which it did not serve upon Applicants even in censored form. For 6xample, Applicants were not served with the letter from MVPP's counsel to the Commissioners dated September 27, 1983.EI If, as appears from inference, MVPP submitted its September 27, 1983, letter (or other like documents) to this Board, it has engaged in prohibited ex parte M/ Applicants continue to oppose anonymous and censored affidavits as a basis for admitted contentions. These particular affidavits have already been addressed by Applicants and no further response is necessary at this time. See-Applicants' Response to Reply Brief by MVPP in Support of Motion to Reopen at 19-30 (August 3, 1983).-
M/ See Proposed Issues and Support for MVPP Contentions at 5, 22, 41, 46, 51 (December 31, 1983). Applicants learned of the September 27, 1983 letter only by way of the instant MVPP document and obtained a copy from the Docketing'and_ Service Branch, Office of the Secretary.
Routinely, other correspondence to the NRC upon which MVPP relies has not been served on Applicants but has subsequently been obtained from the NRC.
. _ . 10 communicstions. b -Such secret: filings are anathema to the
' due process rights of parties to a licensing proceeding.
Perhaps~more than.anything else, MVPP's reliance upon~ secret
- affidavits shows how little'it "may reasonably be expected to' assist.in' developing ^a sound record."E
- II . The " Issues: Raised by MVPP Pertain to Compliance With the-Commission's Order to Show Cause.
MVPP's - restatement of its - contentions also confirms
~
-that it wishes the Licensing' Board to conduct a dual track review of the same matters'being reviewed by the NRC Staff pursuant to the Commission's-November 12, 1982 Order to Show Cause.and-Order.Immediately Suspending-Construction.E It
'is apparent'on the record ~that the Commission has maintained close oversight of the Staf f's activities in assuring full compliance with.its. Order to Show cause and, in particular, in assuring that-the' comments and objections of the public are: carefully $ reviewed and considered.
~
Most recently,' NRC ' Region' III approved -Applicants' proposed Course of Action, dated October 5, 1983, after 1having ~ reviewed all of the Applicants' submissions, its o
-14/' 10 - C.F.R. S2.780 (a) (2) . See also 5 U.S.C. 5557(d).
The: general proscription- of such ex parte communications is Jdiscussed in ' Applicants' Answer to NRC Staff's Motion to Defer Rulings on MVPP's Motion to
' Reopen at 8-12 (November 15, 1983).
' 1_5_/. 10'C.F.R. 52.714(b).
M/ -Zimmer, supra, CLI-82-33, 16 NRC 1489 (1982).
. _ _ _ _ _ _ _ _ _ _ _ _____.- . __ _ _ _ _ _ J
responses to comments by the NRC and Torrey Pines Technolo-gy, oral presentations during meetings between the NRC and Applicants, and comments on the Course of Action provided by 17 /
interested persons. A full presentation was made by Region .III and other NRC Staff representatives to the Commission on December 15, 1983 prior to Region III's formal approval. The approval was accompanied by a 30-page " Staff Evaluation of the Proposed Course of Action," most of which responded to specific comments by members of the public, including MVPP.1 !
.Notwithstanding the careful attention and review given the matter by the Commissioners and the Staff, MVPP appar-ently wishes the Licensing Board to duplicate these efforts by conducting its own review. Thus, MVPP~ requests the Licensing Board to litigate the adequacy of the CG&E Plan to ,
i 17/ See letter dated December 16, 1983 from James G.
Keppler, Regional Administrator, NRC, to Mr. W.H.
Dickhoner, President, CG&E.
. 18/ As indicated throughout its pleading and at page 2 of its Appendix I, MVPP provided comments to the NRC on the proposed Course of Action by letter dated Decenber 5, .1983. On December 14, 1983, MVPP also filed a petition pursuant to 10 C.F.R. S2.206 requesting the NRC to defer any judgment or decision on the proposed Course of Action. The Commission referred the petition to the Director, Office of Inspection and Enforcement for action. By letter dated December 16, 1983, the Director notified MVPP's counsel that the petition was denied and that a confirming written decision would be issued shortly. The subsequent written decision was issued on January 13, 1984. See Zimmer, supra, DD-84-3, 19 NRC (January 13, 1984).
1
l -Verify the Quality of Construction ("PVOC") of the Zimmer facility. b As indicated by the letter from Region III to CG&E dated December 22, 1983, copies of the PVQC have been provided to interested persons for comment. A public meeting on the PVQC with an opportunity for public comment was held on January 11, 1984. A representative of MVPP addressed the PVQC during the public comment segment of the meeting. A letter from MVPP's counsel with detailed written comments was also submitted in which MVPP stated that it is
" conducting a detailed review of the PVQC" in order to submit a petition under 10 C.F.R. S2.206.2_0,/
Thus, the PVQC and all other remaining steps required under the Commission's Order to Show Cause will undergo the same full measure of careful examination by the NRC Staff with an opportunity for public comment and participation.
In these. circumstances, the Licensing Board should not duplicate the same function in a hearing. With or without a
-19/ By -letter dated December 16, 1983, CG&E submitted the PVQC to the NRC' for approval. Similarly, the CG&E Continuation of Construction Plan (CCP") for the Zimmer facility was submitted on December 22, 1983. The Staff .
is currently reviewing each of these proposals. By letter dated January 13, 1984 frcm Region III to CG&E, the NRC invited interested persons to submit comments on the CCP and stated that a public meeting with further opportunity for public comments would be scheduled.
-20/ Letter from Thomas Devine, counsel for MVPP, to James Keppler, Administrator, Region III, NRC at p. 11 (January 11, 1984).
l
_ _ _ _ _ l
hearing, the Staff's approval of all unresolved quality assurance issues'is necessary for licensing Zimmer under the Commission's Order to Show Cause. Such a hearing therefore appears to be inconsistent with the Commission's carefully devised procedures. b This very point is evident from a recent decision by the Director, Office of Inspection and Enforcement, when the adequacy of the PVQC was raised by MVPP in a request for relief under 10 C.F.R. 52.206. In denying MVPP the request-ed relief, the Director explained how the Staff would review the PVQC and how the NRC's review and approval would ade-quately protect public heaith and safety:
The staff will review the PVQC when submitted by the licensee in accordance with Section IV.B (2) of the order. The PVQC is subject to the approval of the Regional Administrator under the order.
16 NRC at 1498.- Based upon a review of the outline of the PVQC in the Course of Action, the PVQC appears to be suffi-cient to resolve MVPP's concern with the conformance of the as-built condition of Zimmer to its design. The validation of design documents by Sargent and Lundy will include a comparison "to the as-constructed condition through visual and, as appropriate, physical in-spections, as described in the COA."
. . . . The licensee has also- stated that the PVQC will include "{p]hysical inspections of safety-related systems, structures or components . . . as necessary and appropriate to inspect 21/ See generally Applicant's Answer to MVPP's Motion to Reopen the Record at 20-21, 32-39 (June 20, 1983).
I
nonvisual attrilute requirements of design drawings and specifications."22/
The Director emphasized that the Staff's activities in general and as regards the PVQC and-other related matters would provide full assurance of compliance with all licens-ing requirements:
The NRC itself remains substantially involved in oversight of the activities at Zimmer. As noted above, the Com-mission's order, in addition to requiring that the Region III Adminis-trator approve the licensee's course of action, also requires that the PVQC be subject to his approval. CLI-82-33, 16 NRC at 1498. The staff will also continue its routine inspection activ-ities at the site. Moreover, the Commission's order requires that the PVQC " include an audit by a qualified outside organization, which did not perform the activities being audited, to verify the adequacy of the quality of construction . . . ." M. The require-ment that a qualified, outside orga-( nization audit the PVQC and the NRC's L own inspection presence at Zimmer should i also help assure that the licensee and
[ its agents adhere to the plan it has
( proposed to verify the quality of construction. Any inadequacies in the licensee's ongoing quality ' confirmation program should also be resolved by implementation of the licensee's Course of Action.23/
i.
~22/ Zimmer, supra, DD-83-19, 18 NRC (December 16, 1983)
[ (slip op, at 16-17) (emphasis added).
23/ Id. at 17.
k
(
0 On January 10, 1984, the Commission extended the time for its possible review of this decision by the Director until January 25, 1984. Also, the Commissioners are fully aware of the PVQC submitted by CG&E and would .certainly discuss any objections prior to Region III's approval.24/ Thus, if the Commissioners are in any way dissatisfied with the PVQC, they will undoubtedly take these opportunities to make their views known. If they express no disagreement, the validity of the PVQC should be laid to rest.
.In any case, the " issues" raised by MVPP with respect to the PVQC do not raise litigable issues, let alone provide requisite specificity.25/ For example, scattered throrghout its issues are claims by'MVPP that the PVQC and other formal submissions by CG&E are inconsistent with the Completion Forecast prepared by the Bechtel Power Corporation. Thus, MVPP alleges that the PVQC results are " compromised . . .
24_/ At the public meeting on January 11, 1984, Mr. Keppler, the Regional Administrator, stated his intention to act upon the PVQC approval request promptly following the receipt of public comments from interested persons.
Comments are due on January 20, 1984, as stated in Mr.
Keppler's letter dated December 22, 1983 to CG&E.
2_5 / In previous pleadings before the Licensing Board and submittals to the NRC, Applicants have addressed all of the issues and contentions raised by MVPP in its earlier filings since August 20, 1982, which it cites in its December 31 ~, 1983 submission. Accordingly, no useful pur'ose p would be served by repeating all of Applicants' arguments against admitting those proposed contentions. The Board is respectfully referred to Applicant's earlier pleadings addressing such matters.'
v o through reliance on Bechtel's cost estimate (for co~mpleting
. construction of Zimmer] ." Bechtel's Completion Forecast was prepared at the request of Applicants to provide the owners with information necessary for their internal budget operations. The document is not contained in the PVQC nor does the PVQC rely upon its estimates or analysis. In short, the Completion Forecast is not in any sense a licens-ing document or a consideration. in deciding how Applicants
, will meet licensing requirements. It is impossible to find any legal relevance whatsoever that the Completion Forecast provided by Bechtel to Applicants could have upon the NRC's approval of the PVQC.
Other allegations show a total misunderstanding of the
-purpose and scope of the PVQC. MVPP complains that PVQC personnel will not " disposition" Nonconformance Reports
("NCR's") generated by the PVQC. b The purpose of the PVQC, however, is to " determine whether construction of Zimmer conforms w.' :.h the approved design drawings and specifications suppliM to the constructor for use in plant construction . " - Thus, the preparation of NCR's in the verification of quality at Zimmer is programmatically 26/ Proposed Issues and Support for MVPP Contentions at 48 (December 31, 1983).
27/ Id. at 36-37.
2_8) PVQC S3.0 at p. 8.
b
- 17 _
e distinct from the dispositioning _of the NCR's to complete
- f. construction of the particular component in which the I
deficiency exists. Inspectors are trained and qualified to identify deficiencies. Resolution of these deficiencies is, however, an engineering responsibility with overview by Quality Assurance personnel. MVPP has cited no legal requirement under 10 C.F.R. Part 50, Appendix B, or any applicable code requirement, by which the same Quality Control inspector who writes up the NCR must also oversee its disposition. Whether under the PVQC or completion of construction, all inspectors will be fully trained and qualified to apply pertinent code requirements.
MVPP also asserts that the PVQC should assess the adequacy of NCR's previously generated.29/ Apparently, MVPP wants the Applicants and the Staff to run around in circles.
It was deficiencies in the existing quality assurance records upon which the Commission largely based its deter-mination that construction at Zimmer was "of indeterminate quality . " 3,0,/ While NCR's from the Quality Confirmation Program and other support verification programs will be utilized in the PVQC, the purpose of the PVQC is to 2_9,/ Proposed Issues and Support for MVPP Contentions at 37 (December 31, 1983).
M/ Zimmer, supra, CLI-82-33, 16 NRC at 1496 (1982).
M/. PVQC S4.3 at pp. 33, 40.
I
)
4 verify the as-built construction of Zimmer, not to determine the adequacy of particular NCR's. b MVPP also erroneously claims that the PVQC does not contain a description of the new NCR system.33/ To the contrary, new NCR procedures are fully explained in PVQC, Appendix H.
Elsewhere, MVPP incorrectly asserts that the "PVQC assumes approval of previous QCP results."E! Preliminari-ly, the Commission explicitly approved continuation of the QCP in issuing its Order to Show Cause and required Appli-cants "to determine whether its scope and depth should be expanded in light of the hardware and programmatic problems identified to date."E! Applicants have met and exceeded that requirement by establishing a wholly new PVQC, separate and apart from the QCP. Given its operative premise that the QCP would be expanded, the Commission clearly intended 32/ By definition,' the PVQC, through its comprehensive review of documents and through extensive visual and physical inspections, provides reasonable assurance that deficiencies which were previously not formally documented will be identified. All nonconformances identified by PVQC will be documented on nonconformance reports. Accordingly, there is no basis for the allegation by MVPP that the PVQC should attempt to
" track deficiencies" previously written up on informal substitutes for nonconformance reports. See Proposed Issues and Support for MVPP Contentions at 36 (December 31, 1983).
3 3_3,/ Proposed Issues and Support for MVPP Contentions at 37-38 (December 31, 1983).
34/ Id. at 44, 3_5,/ Zimmer, supra, CLI-82-33, 16 NRC at 1498 (1982).
a Applicants to utilize results of the QCP where appropri-ate.N!
MVPP alleges incorrectly that CG&E has made "no commit-ment for any specified scope or sample of physical in-spections to-any specified degree of confidence, even where documentation is (not] available or visual inspections are impractical due to buried or inaccessible hardware."El This was ' the subject of extended dialogue at the public meeting of January 11, 1984, where CG&E committed to perform a sufficient number of confirmatory physical inspections for inaccessible or nonvisual attributes to ensure that, at a minimum, there is a 95 percent confidence level that 95
-percent of the items in a lot are conforming as demonstrated by the results of the documentation review, except in those cases where CG&E justifies and the NRC approves lower levels. To the extent that required quality documents _8,/ 3 36,/ The PVOC will not, as MVPP wrongly asserts, make a wholesale incorporation of QCP results. Rather, QCP results will be validated and, if the results of the PVQC and QCP are not in agreement, a determination whether to include the results in the PVQC will be based upon PVQC sampling methodology. PVQC at 33.
_3_7_/ Proposed Issues-and Support for MVPP Contentions at 33 (December 31, 1984).
3_8,/ Contrary to MVPP's assertion, PVQC written procedures will require that documents generated by the PVQC which address quality attributes shall be considered quality documents and will be appropriately controlled in accordance with written procedures. The discrepancy list is a specific example of a PVQC generated quality document.
are not available for an item, the item will be classified as nonconforming and a nonconformance report will be pre-pared.S MVPP wrongly criticizes the PVQC for failure to include a " commitment to answer all public allegations."SI The purpose of the PVQC is to verify the quality of con-struction. All existing relevant allegations -- i.e., those which identify allegedly nonconfirming items -- will be reviewed under the PVQC and the existence or nonexistence of a nonconfo::mance will be verified.S To the extent that various allegations are not relevant to the purpose of the PVQC, the PVQC properly excludes consideration of such allegations from its scope. Those other allegations beyond the scope of the PVQC will be addressed in other programs
' identified in the COA, such as the Independent Design Review.
Finally, MVPP speculates throughout its restated contentions that Applicants will fail to report defi-ciencies, will take shortcuts and violate regulatory re-quirements. The Director, Office of Inspection and Enforce-ment, in denying the aforementioned petition by MVPP 3_9,/ PVQC S4.3 at 31-32.
M/ Proposed Issues and Support for MVPP Contentions at 33 (December 31, 1983).
M/ PVQC 54.3 at 28, Appendix C, pp. 6-7).
pursuant to 10 C.F.R. S2.206, dismissed as wholly unsupport-ed MVPP's assertion that CG&E might fail to report defi-ciencies or problems at Zimmer as required, holding:
The petitioner's contention is premised essentially on the assumption that the licensee will deliberately ignore or fail to meet its reporting obligaticns in order to gain an advantage in the arbitration. MVPP provides no evidence which would warrant the Commission in such an assumption for this or any other licensee. While a concerted effort to avoid its reporting responsibilities might afford a licensee some short term gain, the licensee and its responsible officials risk potentially severe criminal and civil sanctions for such conduct.4_2/
Conclusion 1
MVPP has failed to comply with the Board's suggestion that it provide specific, well focused, litigable issues.
Instead, its most recent submission is a regression. If the 105 " issues" now raised by MVPP were to be litigated, the ,
delay in completing this proceeding would be predictably enormous. Moreover, it has relied upon documents never served on Applicants and presumably submitted to the Licens-ing Board on an e x_ parte basis. It has also failed to identify its witnesses en precise issues and to summarize their testimony.
-42/ Zimmer, supra, DD-83-19, 18 NRC (December 16, 1983) (slip op. at 10-11).
Also, the hearing sought by MVPP would serve no useful function but would simply leave matters as they are now by duplicating the Staff's ongoing review of the various programs for confirming and verifying the quality of con-struction at Zimmer and completing the construction of the facility in a quality manner. The Staff's activities are consistent with the guidelines imposed by the Commissioners in their Order to Show Cause and continuing oversight function. The time and resources of the Staff and Appli-cants should not, therefore, be diverted to hearings which would ultimately leave the Board ' in the same position of requiring the Staff to assure compliance with all regulatory requirements, just as the Commission has already required under its Order to Show Cause.
Based upon these and the other considerations previous-ly stated .in Applicants' pleadings, MVPP's motion for reconsideration should be denied. ,
Respectfully submitted, CONNER & WETTERHAHN, P.C.
- / ,
Tro- B. Conner, Jr.
Mark J. Wetterhahn Robert M. Rader Counsel for the Applicants January 16, 1984
-J N
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic 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 ' Proposed Issues and Support for Miami Valley Power Project Contentions,'" dated January 16, 1984 in the captioned matter, have been served upon the following by deposit in the United States mail this 16th day of January, 1984:
Judge John H. Frye, III Chairman, Atomic Safety Chairman, Atomic Safety and and Licensing Appeal Licensing Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Frank F. Hooper Chairman, l'omic Safety Chairman of Resource and Licensing Board Ecology Program Panel School of Natural U.S. Nuclear Regulatory Resources Commission University of Michigan Washington, D.C. 20555 Ann Arbor, MI 48104 Docketing and Service Mr. G.A. Linenberger, Jr. Branch Administrative Judge Office of the Secretary 1005 Calle Largo U.S. Nuclear Regulatory Sante Fe, NM 87501 Commission Washington, D.C. 20555
s 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. Stephen H. Lewis, Esq. U.S.
Clermont County Nuclear Regulatory Community Council Commission Box 181 Region III Batavia, Ohio 45103 799 Roosevelt Road Glen Ellyn, Illinois 60137 Brian Cassidy, Esq.
Regional Counsel Federal Emergency Management Agency Region I John W. McCormick POCH Boston, MA 02109 VA. n Robert M. Rade'r cc: Robert F. Warnick Director, Enforcement and Investigation NRC Region III 799 Roosevelt Road Glen Ellyn, Illinois 60137
.