ML20081M795

Answer Opposing NRC Motion to Defer Rulings on Miami Valley Power Project (MVPP) 831003 Motion to Reopen Record.Decision Should Not Be Deferred to Await Completion of Investigation. Certificate of Svc Encl

ML20081M795
Person / Time
Site:	Zimmer
Issue date:	11/15/1983
From:	Wetterhahn M CINCINNATI GAS & ELECTRIC CO., CONNER & WETTERHAHN
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8311170377
Download: ML20081M795 (15)

Text

-

l I

DOCMETED USNRC UNITED STATES OF AMERICA NI6 E NUCLEAR REGULATORY COMMISSION CFflCE 00 EECFW-Before the Atomic Safety and LicensingCBoard'j h if . i.

In the Matter of )

)

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

)

(Wm . H . Zimmer Nuclear Power )

Station) )

APPLICANTS' ANSWER TO NRC STAFF'S MOTION TO DEFER RULINGS ON MVPP'S MOTION TO REOPEN Preliminary Statement i In a motion filed on October 3, 1983, Miami Valley Power Project ("MVPP") sought reconsideration of the Memo-randum and Order 1 denying the reopening of the record in l this proceeding. In its answer, the NRC Staff separately I

l -moved that the Atomic Safety and Licensing Board (" Licensing Board" or " Board") defer ruling on MVPP's motion for recon-sideration until the Office of Investigations has completed an ongoing investigation at the Wm. H. Zimmer Nuclear Power Station ("Zimmer"). Although the Staff stated that it "is in general agreement with Applicants' discussion that the

-Licensing Board correctly held that MVPP had failed to show 1/ The Cincinnati Gas & Electric Company (Wm. H. Zimmer l

' Nuclear Power Station, Unit 1) , Docket No. 50-358-OL,

" Memorandum and Order (Ruling on MVPP's Motion to Reopen the Record)" (September 15, 1983) (hereinafter

" Memorandum and Order").

8311170377 831115 PDR ADOCK 05000358 PDR g

-- - - , - ..-...,-,---.c. - . - . , - - - - - - - - - , - . - - - - . . - - . - - - - - - - . - - - , - - - - - - - . - . . - - . . . . - --

l'

.- ; ' good cause' for its lateness and had correctly applied the l standards set forth in ALAB-704,"2_/ it opined "that the )

ongoing investigation at Zimmer by OI does merit consid-eration by the Licensing Board." ! The Staff offers two alternatives: an ,i_n camera, ex parte receipt of information l from the Office of Investigations ("OI") now, or deferral of a ruling on MVPP's motion to reconsider until the inves-tigation has been " completed" and a " final" report has j

issued.

The Cincinnati Gas & Electric Co., et al. ("Appli-l cants") strongly oppose the Staff's motion to defer. First, l the Staff seriously misconceives the function of OI in providing information to the Commission's adjudicatory boards. Properly understood, this function has no con-

, nection wiuh a petitioner's ability to demonstrate " good i cause" for presenting late contentions. Second, the Staff's position, if upheld, would leave the Zimmer proceeding open-ended in anticipation of whatever further information might be forthcoming from either the Staff or OI.

Finally, under no circumstanccc should the Licensing i

i Board receive g parte information from OI or any other l

i

-2/ NRC Staff's Answer to MVPP's Petition for 1 Reconsideration of September 15, 1983 Order and Staff's Motion to Defer Rulings on MVPP's Motion to Reopen at 6-7 (October 31, 1983) (hereinafter " Staff's Motion to Defer Rulings").

3/ Id. at 7.

source in order to rule upon MVPP's proposed late con-tentions. Such e_x, parte consideration would constitute a violation of Applicants' rights of due process, including a hearing on the record, as guaranteed by the Administrative Procedure Act, which expressly prohibits such ex parte communications. The motion to defer should therefore be denied. The Licensing Board should also deny MVPP's pending motiop for reconsideration forthwith.

I Argument

, I. The Commission's Statement of Policy Applies Only to Issues in Controversy.

In its Memorandum and Order, the Licensing Board reviewed the Commission's Statement of Policy on Investiga-tions and Adjudicatory Proceedings 4/ and concluded that the Statement of Policy is inapplicable to proposed contentions.

The Board found that the Statement "is clearly applicable to l

! information generated in investigations that is material to -

issues in controversy in an adjudication."El This interpre-tation is clearly correct. The Statement governs situations where " staff or OI believes in a particular case that it is its duty to inform an adjudicatory board of information which is the subject of a pending inspection or inves-tigation or an adjudicatory board believes that it needs l

l 4_/ 48 Fed. Reg. 36358 (August 10, 1983).

- 5_/ Memorandum and Order at 25.

i

more information concerning the subject of a pending in-spection or investigation . . . .

"6_/ As is apparent from the very cases cited by the Staff,1! the " duty" to which the Commission referred arises only with respect to matters in controversy before an adjudicatory board. Thus, as the Staff acknowledges, the Statement refers to "information regarding pending inspections and investigations that is material to the issues in controversy."8_/ ,

Conceding that the plain language of thd Statement limits it to issues in controversy, the Staff suggests that s

it would nonetheless "be in the spirit of the. Commission's current practice" to consider such information for proposed contentions.EI Nowhere, however, does the Staff disclose its divination of this " spirit." As noted, none of the cases it cites proposes an affirmative duty upon parties or others to inform adjudicatory boards of information relevant to deciding proposed contentions. A review of those cases simply confirms that the Commission's recent Statement of Policy was intended to apply only to issues in controversy.

If the Commission wishes to implement the radical departure 6/ 48 Fed. Reg. at 36358-59 (emphasis added).

-7 / Staff's Motion to Defer Rulings at 8 n.16.

8_/ 48 Fed. Reg. 36358, cited M Staf f's Motion to Defer Rulings at 8.

9/ Staff's Motion to Defer Rulings at 8.

from its previous practice suggested by the Staff, it should be accomplished by plain and direct language, not the Staff's conjecture about the " spirit" of the practice. b II. The Files of the Office of Investigations Are Immaterial to MVPP's Lack of " Good Cause" For Lateness.

In addition to che inapplicability of the Statement of Policy to proposed contentions, the Staff's position is fundamentally defective in failing to demonstrate how anything in OI's files could be material to the Board's finding that MVPP lacked " good cause" for its lateness. The Licensing Board compared MVPP's'1983 contentions to its 1982 contentions and found, as MVPP itself stated, that the 1983 i contentions simply refined, expanded and strengthed the 1982 contentions. b The Board therefore ruled that nothing recently submitted by MVPP raised "new matters not within 10/ Notwithstanding the Staff's strained reading of the Commission's decision in Three Mile Island, the Commission's recent action in that case on the completion of OI investigations merely confirms that it is the Commission, not this Licensing Board, which should determine how OI's findings should be handled.

See Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), Docket No. 50-289 SP, " Notice to the Parties" and " Order" (October 7, 1983).

Moreover, there is a vast difference between considering a stay of an ongoing hearing to receive further information, as in Three Mile Island, and awaiting further information on an open-ended basis to ,

determine whether extremely late contentions should be admitted to commence a hearing, as the Staff suggests here.

11/ Memorandum and Order at 28-29. l l

l 1

4 the contemplation of the 1982 contentions," which, as the Licensing Board ruled more than a year ago, " clearly could have been raised at least as early as the end of 1981, if not earlier."N Therefore, the Staff's argument that

" [ t] he facts developed by OI investigation may be relevant to one or more of MVPP's proposed contentions"E! entirely misses the point. It is not relevance to the contentions per se which is material, but rather relevance to MVPP's lateness.

Accordingly, whatever information OI may possess could not conceivably excuse MVPP's lateness in presenting its contentions in a timely manner based upon the information M possessed much earlier.

In addition to the Staff's fundamental error in failing to show how such information would be relevant, the pocition urged by the Staff would effectively leave the proceeding l open-ended. Contrary to the Staff's information that the OI report is expected by the end of November,b! recent infor-mation indicates that the report may not be issued until the end of this year and it is not possible to predict what policy the Commissioners might follow as to releasing the report to the public. ,

12/ Id.

M/ Staff's Motion to Defer Rulings at 10.

14/ Staff's Motion to Defer Rulings at 9.

Moreover, every facility application is subject to ongoing inspection and investigative activities by the NRC Staff and the Office of Investigations. Certainly, Zimmer is no exception. Indeed, as a result of the Commission's Order to Show Cause,15/ Zimmer is among the most carefully scrutinized facilities in the country. Undoubtedly, the Staff and OI will continue to monitor Zimmer and generate more information. Such information, however, is absolutely irrelevant to MVPP's failure to show " good cause," and awaiting its receipt raises the disturbing spector of a never-ending proceeding. The Licensing Board foresaw this possibility in explaining one reason why it rejected MVPP's proposed contentions:

If litigated, virtually any new develop-ment in the quality assurance area would become relevant. Consequently, if they were to be litigated, the Board would be j

faced with a virtually open-ended review of the Zimmer quality assurance situa-tion.16/

l l

! Yet, this is precisely the situation which the Staff would l create by awaiting further information from the Office of Investigations.EI M/ Zimmer, supra, CLI-82-33, 16 NRC 1489 (1982).

M/ Memorandum and Order at 38.

17/ Even if the Board examined whatever information exists now, MVPP would argue, as it has consistently, that "new developments" have occurred which warrant reconsideration. Such allegations would persist until (Footnote Continued) l l

-g-Finally, the Staff has glossed over the fact that the OI report will be presented to the Commission for its consideration.18/ Particularly since OI is an adjunct to the Commission itself, it is far more appropriate for the Commission rather than its t.,ards to determine what action, if any, should be taken in response to the report. The Office of Investigations is the delegate of the Commission, not the Licensing Board, and this Board should not expand i OI's proper function in providing relevant information on 1

matters in controversy by a contrary, unsupported interpre-l l tation of express Commission policy.

I III. The Licensing Board Should Not i

! Entert~ain Ex Parte Communications From the Office of Investigations.

If the Licensing Board nonetheless decides to receive l

information from the Office of Investigations, it should certainly not do so through ex parte communications. Under l 5 U.S.C. 5557(d), ex parte communications " relevant to the l

merits to the proceeding" are strictly prohibited, and every l agency is required to place any prohibited g parte commu-nications on the public record. j It is well established that an agency's consideration of ex parte communications in a proceeding constitutes l

l (Footnote Continued) and a full operating license is issued for Zimmer,

perhaps beyond.

18/ See Staff's Motion to Defer Rulings at 9 n.18.

I l

l l

i

s

, reversible error. United States Lines, Inc. v. Federal Maritime Commission, 584 F.2d 519 (D.C. Cir. 1978); National Small Shipments Traffic Conference, Inc. v. Interstate Commerce Commission, 590 F.2d 345 (D.C. Cir. 1978). As the United States Court of Appeals for the District of Columbia recently held:

The disclosure of ex parte communica-tions serves two distinct interests.

Disclosure is important in its own right to prevent the appearance of impropriety from secret communications in a procsed-ing that is required to be decided on the record. Disclosure is also impor-tant as an instrument of fair decisionmaking; only if a party knows the arguments presented to a decisionmaker can the party respond effectively and ensure that its position is fairly considered. When these interests of openness and opportunity ,

for response are threatened by an ex party communication, the communication must be disclosed. It matters not whether the communication comes from someone other than a formal party or if the communication is clothed in the guise of a procedural inquiry.

Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority, 685 F.2d 547, 563 (D.C. Cir.

I 1982).

The same Court stated in National Small Shipments Traffic Conference, Inc., supra at 351, that ex_ parte commu-i nicatir-, "are offensive in two fundamental respects: (1) i they violate the basic fairness of a hearing which osten-i sibly assures the public a right to participate in agency I

decisionmaking, and (2) they foreclose effective judicial review of the agency's final decision." The Court also I

. . stated that " blind references and g parte communica-tions . . . violate the ideals of fairness and public participation which are embodied in the statutory require-ment of a hearing and undermine the efficacy of judicial review under the arbitrary and capricious standard." United States Lines, Inc., supra, at 543.

In United States ex rel. Parco v. Morris, 426 F. Supp.

976, 982 (E.D. Pa. 1977), the Court summarized the problem of "beyond the record" statements generally, stating that "the consideration of extraneous pressuring influences undermines the fairness of the hearing afforded the adverse parties." Accordingly, consideration of ex parte communica-tions would violate fundamental ideals of due process embodied in the Administrative Procedure Act.

E parte submissions such as those proposed by the Staff and OI in this case are obviously intended for sub-stantive consideration by the Licensing Boards on the merits of the proposed late contentions. By virtue of being g parte, such communications have an incalculable effect upon the rights of Applicants in this proceeding. D It is l

-19/ The Staff's comparison of an ex parte presentation by tne Office of Investigations t3 the hearing in Diablo Canyon to resolve apparent conflicts between affidavits and other documentary materials shows an alarming disregard for- due process. In Diablo Canyon, the Appeal Board scheduled an open hearing among the parties, who were required to " produce all affiants on whom they relied and all other persons necessary to (Footnote Continued)

,2 h

'. dangerous and unwarranted in the extreme to permit licensing j board adjudications to be decided by such ex parte commu-nications.20/ The Commission's policy against considering e_x_ parte communications was recently reiterated in the Three Mile Island proceeding, where the Commission stated that discussion of general health and safety problems is not e_x_

parte, whereas a document which " relates uniquely to [a o- facility]" is g parte if considered. EI Clearly, informa-tion proffered by OI would fall into the latter, prohibited categcry.

(Footnote Continued) sponsor their documentary evidence." Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), Docket Nos. 50-275 OL and 50-323 OL,

" Order" (June 28, 1983) (slip op. at 2). Additionally, the Appeal Board stated: "A party failing to produce such persons will risk having questions involving a particular affidavit or document resolved against them." _Id . The NRC Staff was directed to provide the Appeal Board and other parties with copies of all NRC Inspection Reports involving disputed issues. Id. To compare such hearing _ practices with the -ex parte procedure proposed by the Staff for Zimmer deTies all logic.

20/ The arbitrariness of ex parte communications as regards Zimmer is amply demonE rated by the very fact that the offer by the Director of OI to provide ex parte information was itself ex parte. But for the action of the Docketing and Serve e Section in forwarding OI's letter, Applicants would not have even been aware of this communication.

21/

Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1) , CLI-83-3, 17 NRC 72, 74 (1983). As the Commission further stated, discussions are ex parte unless "outside the scope of the proceeding." I_d . at 73.

Given the strong policy expressed by statute and judicial decisions against ex parte communications, the Licensing Board should not undertake to initiate or invite ex parte contacts with OI. At the very least, it should apprise the parties of its intentions. This would afford Applicants an opportunity to consider seeking appropriate relief.

Conclusion For the reasons discussed more fully above, t.e Licens-ing Board should not defer its decision upon MVPP's motion for reconsideration in order to await information from OI's investigation. Such information is immaterial to the issue of MVPP's lateness and, in any event, will be adequately considered by the Commission. Further, receipt of any ex i

parte communications from OI would prejudice Applicants.

There is no justification for yet additional delay in bringing to a close legal issues which have now been under l

l l

i l

1.

>---m-y g- y ~- - - - - - -

,e - w ww am*-w>- +~y

consideration for well over a year. As the Appeal Board has aptly stated: " Litigation has to end sometime."-

Respectfully submitted, CONNER & WETTERHAHN, P.C.

Troy B. Conner, Jr.

Mark J. Wetterhahn Robert M. Rader Counsel for the Applicants November 15, 1983 l

l l

l l

-22/ Cleveland Electric Illuminating Company (Perry Nuclear

! Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 750 1

(1977).

i

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' Answer to NRC Staff's Motion to Defer Rulings on MVPP's Motion to Reopen," dated November 15, 1983, in the captioned matter, have been served upon the following by deposit in the United States mail this 15th day of November, 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 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

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 Mark O'. Wetterhahn cc: Robert F. Warnick Director, Enforcement and Investigation NRC Region III 799 Roosevelt Road Glen Ellyn, Illinois 60137

. .