ML20080E692

Answer Opposing Miami Valley Power Project 830826 Motion for Leave to Submit New Documents & for ASLB Review of Pending Investigations.Motion Unjustified Attempt to Bend Rules on Late Contentions.W/Certificate of Svc

ML20080E692
Person / Time
Site:	Zimmer
Issue date:	09/12/1983
From:	Conner T CINCINNATI GAS & ELECTRIC CO., CONNER & WETTERHAHN
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8309140042
Download: ML20080E692 (12)

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DOCKETED USN3C UNITED' STATES OF. AMERICA 3 SEP 13 Ali:31

' NUCLEAR PEGULATORY COMMISSION

- - . OFFICE OF SECRETAP' Before the - Atomic' Safety and- Licensi1@'B'6(rE SEPViU.

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-In the Matter of -)

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The' Cincinnati. Gas &_ Electric-)- Docket No. 50-358 Company,'et al. )

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=(Wm. H. - Zimmer Nuclear Power _)

Station) -) [

k-APPLICANTS *. ANSWER TO " MIAMI VALLEY POWER PROJECT'S MOTION FOR LEAVE TO SUBMIT NEW e cEVIDENCE AND~FOR LICENSING ~ BOARD REVIEW OF SIGNIFICANT PENDING INVESTIGATIONS" Preliminary Statement On August 2 6 ,: 1983,- intervenor Miami Valley Power Project ("MVPP") submitted a' motion ~ to the presiding Atomic Safety ~ and . Licensing Board . (" Licensing Board" or " Board"),

seeking permission to file' additional-documents and a brief

-in support of the eight renewed contentions filed on June 3,

.1983:by:MVPP'after its original submission on May 18, 1982.

.MVPP'sEinstant motion represents the most recent in a series L-of attempts to bolster -its initi'al filing. with material it subsequently _obtained in trying to overcome lateness without

" good cause."

~The- ' Cincinnati Gas -& Electric Company, et al.

(" Applicants") oppose this motion. With regard to information compiled by MVPP itself, the motion' constitutes another:-unjustified attempt by MVPP_to circumvent the rules for accepting ~ -late' contentions. As in its previous

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^ -isubmissions along .. these line s ,- - MVPP conveniently ' omits any

. discussion of wheth'er it made any previous effort to obtain i the 1information .~it Lwould now: proffer, nor does.it explain why'such.information'could not have been obtained earlier.

4 MVPP's fcryptic' l reference ' to . its " investigative trip"1/

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is clearly :an insufficient basis; upon which the Licensing Board

?couldLdetermine that such information has been submitted in

a. timely. manner. [

The other requests by MVPP'also lack merit. The Final

! Report- prepared by. Torrey Pines Technology, entitled Ac t u "Iridep'endent -Review of Zimmer Project Management" (August

.1983),Was ;. prepared ' and submitted to NRC Region III in -

compliance ~w'ith the Order to Show Cause issued by - the

-  : Commission on November 12, 1982.'2/ The ~ issuance of this

-report has long been anticipated,- and publication of this document does not demonstrate " good - cause" on the part of s

. .MVPP in -- failing- to . submit timely. contentions over a year

ago; The:Torrey Pines report resulted from the Commission's I Order to.- Show cause- and is a .part of that - procedural 1

framework. The Commission and its Staff .will review the l-

.~ report and utilize it appropriately within that context. As t

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V lj MVPP's Motion;at 1.

-2/ i The J Cincinnati Gas & Electric Company (Wm. H. Zimmer

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Nuclear Power Station), CLI-82-33, 16-NRC 1489 (1982).

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.such, the report should not be injected as an issue into the

.procee' dings'before the Licensing Board.

' Finally,'the internal NRC investigations to which MVPP

~has referred will'be'made known to the-. Licensing Board,

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as appropriate,- by either the Commission or the Office of

-Investigations under-the Commission's " Statement of Policy -

Investigations and Adjudicatory Proceedings." - Under this policy, it is for the Office of' Investigations to[ determine

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when - a duty . arises to. inform an adjudicatory board of matters under investigation. '

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Argument I. No Good-Cause Has Been Demonstrated for

.the Untimely Submission of-Information or Documents Proffered by MVPP This is:the latest-in a series'of requests by MVPP to submit "new evidence" in- support of its eight late contentions on quality assurance ' practices at the Zimmer

,  : Station. Although MVPP has provided a summary description of. the-information.and/or documents it intends to file, it

! has studiously avoided, as it has in the past, any mention of the precise . circumstances under which it obtained the l

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.informatio'n or' documents. The Board and parties are merely advised that' its counsel recently " completed an investigative trip,"4/ which resulted in this information.

3/. 48 Fed. Reg. 36358-(August 10, 1983).

4/ MVPP's' Motion at 1.

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LI nL:no5way whatsoever.does'MVPP relate _the'information or;its

~ source (s) to MVPP's-: previous efforts to obtain suchi

!information1 'and/or the'  : prior- availability of . such

'information.- . Inde'ed , .MVPP admits - thati some .of the information pertains to the - very ' allegations contained in

'its previous-submission on July 12, 1983.5_/

MVPP has the affirmative - burden -of- demonstrating satisfaction ' of 1 the requirements for rjsopening a closed I

record 'and. for submitting . late contentions,6/ and has failed to.do so. Its motion is clear oneits face that many of :the matters ' described therein could have been pursued

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earlier _.--Each'of the matters pertaining to alleged hardware deficiencies , e.g. , - material traceability, are encompassed.

-withinfthe' ongoing Quality Confirmation; Program and related

. activities at -. Zimmer under the Commission's Order to Show

' Caitse. One of the.' allegations pertains : to a former Kaiser

't 1 employee, Sherrill Nolder, whose . activities at Zimmer have long :been a ' basis for MVPP 's. allegations.7/ MVPP also Jwishes--to' challenge certain testimony by Kaiser's Vice President, Admiral Donald Iselin, before Congress in

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' '6f  :: S e e - g e n e r a l l y Applicants'. Answer to MVPP's Motion to Reopen-the-Record for Admission of Eight Contentions on

. Quality Assurance at-19-45'(June'20, 1983).

ii :7/. ;See : Applicant's Response to Reply Brief by MVPP at 7T 25 (August.3,'1983).

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) September l-1982,;despite failing to show that.its allegations.

"couldinot_have previously been raised.8_/

s To putsthe matteri in; perspective, it must'be borne'in

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mind that ths: basic motion;before the Licensing Board filed Ton L-June-s3,11983 :is essentially 1 for reconsideration of the LBoar'd's denial lof-MVPP's~eight; late contentions over a' year' Lago'. The; information which MVPP now proffers. is

-altogether irrelevant to:whether[the Licensing' Board should reconsider the-matter.of_ reopeni g-the record as it existed a

on: May -18, 1982, the date MVPP initially submitted its s

propose'd -late _ contentions. The - supplementation MVPP l would '

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provide cannot " cure"' a deficiency 'in having f ailed' to

-pursue ~~its -contentions ' in- a. timely manner over a year ago M As-Applicants have emphasized before, MVPP's efforts to

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_ support its.' late filed contentions by a stream of' documents filed ad- infinitum Lfundamentally- misconstrues the 1 Commission's policy ~ for' admitting late contentions" and reopening-_a closed record. In-reviewing a party's proposed late contentions, itiis not the . function of the~ Licensing

. Board to determine whether, after'the~ filing of the proposed

,8f MVPP's Motion at 6--7.

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9/ See? Applicants' - Answer to MVPP 's - Motion to Reopen the Record -for Admission - of Eight Contentions _ on Quality

Assurance at 15-16 (June 20, 1983).

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Id..at 29.

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l' ate - Lcontentions ,.

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the- party has' submitted additional'  !

allegations supportive of its. claims as soon'as-information

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became available.-:Rather, the Board must decide whether the party has . met its -obligation ~ "to diligently ' uncover and apply,'all; publicly' available information to the -prompt formulation of contentions." The information which MVPP

- nowc proffers, even if only recently obtainable, is utterly

-irrelevant' to ' : the ~dettyrmination of " good ' cause" for its

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s Leight 1 ate ' contentions k submitted more than a year ago. It

. is' the " prompt- formu14 tion of contentions" themselves, not L subsequent submissions, which establish '" good cause" .for

!' latene s s .1_2, For the 'same reason, MVPP's' desire to comment on the

. Torrey. Pines l report' is also irrelevant. Observations,

'conclusionsJand recommendations by Torrey Pines pursuant to p the1 directive of the Commission in the -Order to Show Cause j that. there be a third-party independent review of Zimmer I=

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~11/- Duke Power Company (Catawba Nuclear Station, Units 1 i and 2) , CLI-83-19, 17 NRC (June 30, 1983) (slip

! op. 3 at .11) --(emphasis added) .

E lf . 12/ See generally . Applicant's Answer to MVPP's Motion to

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Reopen the. Record for Admission of.Eight Contentions on

- Quality Assurance at 24-27 ' (June 20,.1983). As it has Don' other occasions,. MVPP requests leave to take

!~ ' discovery in order to support its proposed contentions.

This.particular. request has already been addressed-by Applicants to L demonstrate that no such right exists.

'See Applicant's - Answer to "MVPP Motion for Leave to File ' a Reply Brief -to Applicants ' and Staffs' Answers

-to Motions to Compel Discovery" ' (August 25, 1983).

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. - project management have no bearing upon whether MVPP has shown " good cause" for . late contentions filed over a year

.ago.- As thefinevitable ' product of the Commission's - Order that such a review .be conducted, the publication of this document is hardly ' unanticipated or any "new" development

- supportive of MVPP's contentions.

1982 In both' its Order of July 30, requiring the dismissal of . ilhe sua- sponte contentions and its subsequent

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Order to- Show Cause, the Commission expressed its expectation that ongoing activities pursuant to its_ orders

' would result in the_ generation of further information necessary to address. quality assurance deficiencies at Zimmer effectively and comprehensively.13/ -

The Torrey Pines report ~ is- the -logical result of the Commission's expectation.- Although MVPP obviously wishes to add its comments to the conclusions and recommendations -of the Torrey P i n e s - r e p o r t ,- this is a matter of the show cause

- proceeding. The Commission'has already established precise

-procedures- for the disposition- of the conclusions and recommendations of the Torrey Pines report. It must be emphasized that submission of the Torrey Pines report is only the first of'several steps to be taken under the Order to Show 'Cause for resumption and completion of 13/ See_ generally Applicant's Answer to MVPP Motion to Reopen the Record at 27-28 (June 20, 1983).

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. safety-related' construction at Zimmer. $ It would be

' inappropriate'for~the completionLof each~of these steps in

.the . show : cause - proceeding 'to be_ collaterally raised before the' Licensing Board. . The Board should therefore not permit the' validity lof this document to'become an issue here.

II. 'The~Results of-Internal.NRC Investigations

-Will.be Made Known to-the Licensing Board as Appropriate

~AsIadditional relief, MVPP has asked that.the Licensing

.- Boar review :the full investigative - files and any reports s

regarding: -(1) the investigation by Administrative Law Judge Helen . Hoyt of activities by the ' Office of Inspector and Auditor'during its investigation at the Zimmer Station and

(2) .the . ongoing ' investigation ~ by- the NRC Office- of Investigations at

Zimmer.

p Preliminarily, we' understand'that the investigation by

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/ Judge .Hoyt- was initiated by the. Commission as a special-

. proceeding to provide -the Commission' 'with information for

.its particular purposes.. As ' a' separate proceeding over

[ which.this Board has no - delegated jurisdiction, it is not L

apparenti how - the Board . would pursue a - request to review investigative . files = and/or reports prepared by or at - the .

i crequest-of Judge Hoyt for the Commission.- It is clearly.up l-

- .. to .- the' Commission to provide'this' Licensing Board with any I

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, J4f 16 NRC at 1497-98'.

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. materials it deems relevant and helpful with regard to the

~ matters beforeLit.

As for' ongoing- investigations by the ' Office of

-Investigations at Zimmer, the Commission has outlined an

-interim policy governing disclosure of information regarding

-pending. inspections- and investigations to _ adjudicatory boards.- It is clear from its policy statement that the

[ Commissioni is relying upon the Staff or Office of I Investigations to - determine when, in a particular case,

-, 'either is, duty bound to inform an adjudicatory board of such 1

information.25/' In these- circumstances, it- would be

inappropriate for the Licensing Board to presume that either the NRC Staff or. Office of Investigations has been derelict

.in - meeting its obligations -to- disclose _ pertinent

-information.

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15/ 48 Fed. Reg. . 36358, 36359 (August 10, 1983).

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< . Conclusion For the~ reasons. discussed more' fully above, . the motion

• by MVPP to .' submit ' additional information is without merit

-'and should be' denied.

Respectfully submitted, CONNER &~WETTERHAEN, P.C.

b- , .

//24L oy B.' Conner, Jr.

Mark J.-Wetterhahn Robert M. Rader Counsel for the Applicants

' September 12, 1983 L

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%. UNITED. STATES-OF AMERICA W - NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and" Licensing Board

[y. ~

In thefMatter of )

')

-The. Cincinnati Gas & Electric-) Docket No. 50-358 Company, etual. -)

- )

y (Wm. H. Zimmer Nuclear Power- )

Station) )

CERTIFICATE OF SERVICE I~hereby certify that copies of " Applicants' Answer to Miami. Valley Power = Project's Motion for Leave to Submit New Evidence and for Licensing Board- Review of Significant

. Pending Investigations," dated September 12, 1983, in the captioned' matter, . have been served upon the following by deposit in the United States mail this 12th day of September, 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 E

. Commission Sante Fe, NM 87501 Washington, D.C. 20555 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 i Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Ccmmission

' Commission Washington, D.C. 20555 Washington, D.C. 20555 l

i I

' 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 4$714.

RobertiM. Rader

,L cc: Robert F. Warnick Director, Enforcement and Investigation NRC Region III 799 Roosevelt Road

' Glen Ellyn, Illinois 60137

_ . . .