ML20082D699

Memorandum in Support of NRC Motion to Defer Rulings on Miami Valley Power Project Motion to Reopen & City of Mentor Motion to Further Defer Rulings Until Completion of Investigation.Certificate of Svc Encl

ML20082D699
Person / Time
Site:	Zimmer
Issue date:	11/15/1983
From:	Webb D MENTOR, KY
To:
References
NUDOCS 8311220513
Download: ML20082D699 (6)

Text

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UNIT'ED STATES OF AMERICA hD NUCLEAR REGULATORY COMMISSION gj BEFORE THE ATOMIC SAFETY AND LICENSING BOAR fO g,

In the matter of 'bMf7 5 F k

Sck f ""j'l' THE CINCINNATI GAS AND ELECTRIC Docket No. 50-358 COMPANY, et. al.

(Wm..H. Zimmer Nuclear Power Station) .

CITY OF MENTOR'S MEMORANDUM IN SUPPORT OF STAFF'S MOTION TO DEFER RULINGS ON MVPP'S MOTION TO REOPEN, AND MENTOR'S MOTION TO FURTHER DEFER RULINGS UNTIL COMPLETION OF AN INVESTIGATION INTO MATERIAL FALSE STATEMENTS BY APPLICANTS AND STAFF Pursuant to 10 CFR S 2.771 (b) the City of Mentor files this

-memorandum in support of the NRC Staff's Motion to Defer Rulings on MVPP's Motion to Reopen. Pursuant to 10 CFR S 2.730, Mentor moves that the Board order an investigation to determine whether Applicants or the NRC Staff have engaged in material false statements by withholding significant information relevant to either MVPP's

• 1982 or 1983 quality-assurance and management contentions, either ,

before or'after the contentions were filed. Mentor further moves

.that the Board defer ~ ruling on MVPP's Petition for Reconsideration until any such investigation is completed and the report is publicly released, with an opportunity for subsequent briefing by the parties.

Mentor strongly agrees with the premise of the Staff's motion to defer rulings until completion of a major report on ?.immer by the Office of Investigation: "In the Staff's view, it would be prudent for the Licensing Board to have all of the facts regarding activities at Zimmer before issuing its final ruling on the Motion to Reopen." (October 31, 1983), at 10). The Staff's recommendation is both reasonable and necessary, in light of the indeterminate quality of the plant and th5 vehement, unresolved factual disputes P311220513 831115 ])

PDR ADOCK 05000358 0 PDR .. , 1

over Zimmer's safety. ,

Mentor's motion builds on the foundation proposed by the Staff. The Staff's recommend.ation to have all the facts before ruling shouldlbe applied to the central issue in the Board's decision to deny reopened hearings--the responsibility.for "every participant" to fulfill the obligations of the NRC's adjudicatory procedures.

(Board's Memorandum and Order (September 15, 1893), at 36). One of primary duties of all parties is to alert the Board to significant factual developments. (Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1-3), ALAB-677, 15 NRC 1387 (1982). Failure to provide "true and full information" constitutes a material false statement, which can occur by omission as well as commission.

(Vircinia Electric And Power Company (North Anna Power Station, Units 1 and 2), CRI-76-22, 4 NRC 480 (1976). (Emphasis in Original).

MVPP has alleged to the Board repeatedly that it could not present contentions earlier, because Applicants and the Staff withheld the relevant information which necessitated reopened hearings.

In essence, MVPP charges that the information was not publicly available, because of material false statements by Applicants and the Staff.

MVPP explains that it moved to reopen hearings, because it learned of the concealment. MVPP contends that it acted promptly after learning of the fundamental inaccuracies in the public record.

The Board was held MVPP stricly accountable for promptly raising contentions, but it has not issued any findings of fact on the comparative diligence of Applicants or the Staff. If MVPP's position is accurate, the intervenors are being punished for the misconduct of the same parties who oppose public participation through reopened hearings. , As a result, the Staff's motion for c full record prior to any decision shouid be extended to all relevant

issues before this Board. Th.e staff's recommendation would only complete the record relevant for the merits of MVPP's contentions.

Mantor believes that the Board should complete the record relevant for the responsibilities of the parties, since that is th'e pivotal issue in the Board's decision. -

The recent release of a report by Administrattve Law Judge Helen Hoyt significantly increases the credibility of MVPP's position that the record was censored by the NCR staff. (See " Documents R31ated to the Investigation of Allegations Concerning the Office of Inspector and Auditor" released October 28, 1983 by the Nuclear Regulatory Commission, enclosed as Exhibit 1.) This report provides further basis for Mentor's motion; because it raises but does not resolve all of the significant instances where the public record relevant for MVPP's contentions was shrunk. The findings in the Report affect the time period for which the Board has held MVPP accountable.

Essentially, the Hoyt Report found that the director of NRC's Office of Inspector and Auditor, James Cummings, compromised the credibility of one 1981 NRC Zimmer investigation by, inter alia, removing significant information such as contained in the so-called "Harpster interview." (Exhibit 1, Item 2, at 19-32). Mr. Harpster, a former Zimmer resident inspector, had expressed his frustration at CG&E and NRC Staff management's failure to address the serious quality assurance breakdown of which they were aware. The ensuing report, publicly released in November 1981 without reference to the Harpster interview, is one of the reports on which MVPP could hnve moved to reopen the record for proposed contentions earlier.

Region III issued the..other relevant November 1981 NRC Staff

\

raport that MVPP could have relied upon. Significantly, along with \

the Hoyt Report, the Commission released serious allegations by the lead investigator for the 1981 Region III investigation, James McCarten. Mr. McCarten alleged that Region III employees and management obstructed the public record by, inter alia, Yemoving substantial facts, including "information in the files which showed hardware .

problems." Overall, Mr. McCarten contended that the 1981 Region III report was " toned-down , watered-down and sterilized," with cmphasis removed "such that problems were minimized." The Hoyt Report neither presented the evidence nor presented any findings of fact for Mr. McCarten's charges. Only Mr. Keppler's denial, which also listed the allegations, is on the public record. (Exhibit 1, Item 2, at 13, Item 9.)

Mentor believes that the Board should consider the relevance to MVPP's tardiness of Mr. Cumming's removal of evidence from the public record. Mentor believes that the Board should make the ,

j same review after determining the extent of any manipulation by R3gion III of the public record. The public should not be deprived of its due process rights without fall scrutiny of all the relevant conduct by all the relevant parties.

Respectfully submitted, DEBORAH FABER WEBB Attorney for City of Mentor Dated: November 15, 1983

DOCUMENTS RELATED TO THE INVESTIGATION OF ALLEGATIONS CONCERNING THE OFFICE OF INSPECTOR AND AUDITOR 1.' Memo 5/6/83 N. Palladino to H. Hoyt & S. Alcot,

Subject:

Thomas W. Applegate Allegations

2. Memo'7/12/83 H. Hoyt & S. Alcot to Commission,

Subject:

Report to the Chairman on Allegations of Thomas Applegate concerning Conduct of the Office of Inspector and Audit -

3. Memo 8/26/83 V. Gilinsky to Commission,

Subject:

NRC Investigations

.4. Memo 8/31/83 V. Stello to N. Palladino,

Subject:

Report to the Chairman on Allegations of Thomas Applegate concerning Conduct of the Office of Inspector and Auditor

5. Memo 9/7/83 W. Dircks to N. Palladino,

Subject:

Report to the Chairman on Allegations of Thomas Applegate concerning Conduct of Office of Inspector and Auditor

6. Memo 9/7/83 J. Keppler to Commission,

Subject:

Response

to Report to the Chairman on Allegations of Thomas

• Applegate concerning Conduct of the Office of Inspector and Auditor

7. Memo 9/8/83 J. Cummings to N. Palladino,

Subject:

Report to the Chairman on Allegations of Thomas Applegate concerning Conduct of the Office of Inspector and Auditor ,

8. Memo 9/19/83 J. Streeter to Commission,

Subject:

Exhibit H of July 12, 1983, Report to the Chairman on Allegations of Thomas Applegate concerning Conduct of Office of Inspector and Auditor

9. Memo 9/21/83 J. Keppler to Commission,

Subject:

Comments on the Transcript of Interview of James B. McCarten Conducted by Administrative Judge Helen F. Hoyt and C. Sebastian Alcot, Esq.; Zimmer Investigation 81-13

10. Memo 9/30/83 N. Palladino to J. Cummings,

Subject:

Detail

11. Memo 10/06/83~N. Palladino_to H. Hoyt & S. Alcot,

Subject:

Report on Allegations of Thomas Applegate concerning Conduct of the Office of Inspector and Auditor (OIA)

12. Memo 10/06/83 N. Palladino to J. Keppl'er,

Subject:

Report to the Chairman on the Applegate Allegations

13. Memo 10/27/83 N. Palladino.to V. Stello,

Subject:

Report to the Chairman on the Applegate Allegations

14. Memo 10/27/83 N. Palladino to File.

t

UNI"'ED STATES OF AMERICA NUCLCAR RECULATORY C0YRISSION ATOMIC SAF*nf AtC LICENSING BOARD In the Mattar of a CINCINNATI CAS & ELECTRIC '

. DOCKET NO. 358 COP.PANY, et al.

(VilliamH.ZimmerNuclear i Pcver Station)  : ANLICATION FOR AN OPERATINC LICENSE CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the foregoing " City of Mantor's Memorandum in Support of Staff's Motion to Defer Rulings, on MVPP's Motion to Reopen, and Mentor's Motion to Further Defer

-Rulings Until Completion of an Investigation into Material False Statements by Applicants and Staff" have been served upon the following by mailing first class, postage prepaid, this 15th day of November,1983.

Jchn H. Frye, III, Esq.- Troy N. Conner, Esq.

- Chaire.an, Atonic Safety & Licensing Board Conner, Poore & Corbet U.S. Nuclear Regulatory Com.ission 1747 Pennsylvania Avenue, N.W.

Vishington, D. C. 20555 Vashington, D.C. 20005 Dr. Frank F. Hooper _ Villiam J. Moran, E::q.

Atomic Safety & Licensing Board General Counsel, Cin'ti Cas & Electric Co.

School of Natural Resources P.O. Box 960 University of Michigan Cincinnati, Ohio 45201 Ann Arbor, Michigan 48109 ,

John D. Woliver, Esc,.

Dr. M. Stanley Livingston .P.O. Box 47 Atomic Safety & Licensing Board 550 Kilgore Street 1005 calle Iargo Batavia, Ohio 45103 ,

Sante Fe, New Mexico 87301 George E. Pattison, Esq.

Docketing and Service Section 462 E. Main Street Office of the Secretary Batavia, Ohio 45103 U.S. Nuclear Regulatory Commission Vashington, D. C. 20555 James H. Feb.an, Jr. , Esq[

Fifth Level Charles A. Barth, Esq. 216 East Ninth St'reet U.S. Nuclear Regulatory Commission Cincinnati, Ohio 45202 R:om MNBB 9604 7735 Old Georgetown Road David K. Martin, Esq.

Bethesda, Maryland 20014 Office of the Attorney General 209 St. Clair Street Atomic Safety & Licensing Appeal Board Frankfort, Kentucky 40501 U.S. Nuclear Regulatory Commission

.Vashington, D. C. 20555 Andrew B. Dennison 200 P.ain Street

- Atomic Safety & Licensing Board Panel Batavia, Ohio . 45103 U.S. Nuclear Regulatory coraission Vashington, D.C. 20555 Thomas Devine Government Accountability Project ,

oflthe Institute for Policy Studies 1901~0. Street, N,W.

Washington, DC 20009 .

Deborah Faber Webb 7967 Alexandria Pike i Alexandria,' Kentucky 41001 l- '

tv7 of Mentor