ML20082M579

Response Opposing Applicant 831115 Answer to NRC 831031 Motion to Defer Ruling on Petition for Reconsideration & Motion for Leave to File Addl Evidence Prior to 831215 Conference of Counsel.Certificate of Svc Encl

ML20082M579
Person / Time
Site:	Zimmer
Issue date:	12/02/1983
From:	Devine T MIAMI VALLEY POWER PROJECT
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8312060192
Download: ML20082M579 (9)

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UNITED STATES OF AMERICA

• NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING 10ARD

$dkhD In the Matter of )

) *d3 ggg ,y Ali

17 THE CINCINNATI GAS AND ELECTRIC ) Docket COMPANY, et al. ) Ug.f[50-3585fcq y ,

Cchl-f[NCfh'U ER MVPP RESPONSE TO APPLICANTS' NOVEMBER 15 ANSWER AND MOTION FOR LEAVE TO FILE ADDITIONAL EVIDENCE Pursuant to the Licensing Board's November 21, 1983 Order, MVPP files this response to Applicants' November 15 answer to Staff's October 31 motion to defer ruling on MVPP's October 5 petition f or reconsideration. Additionally, MVPP moves for leave to file additional evidence with the Board prior to the December J

] 15, 1983 conference of counsel. More specifically, MVPP moves i

that the Licensing Board consider MVPP's public comments on Applicants' proposed Course of Action.

I. SCOPE OF THE COMMISSION'S STATEMENT OF POLICY.

l Applicants' argument --

"The Commission's Statement of I Policy Applies Only to Issues in Controversy"1 -- is based on a

f alse premise; namely that no legally-relevant proceeding exists.

i This premise is based on a false assumption; that the Zimmer proceeding is not a proceeding. In its October 3 petition for reconsideration, MVPP demonstrated that the Commission's Policy for review of pending investigations applies to " contested proceedings," which exist when an attempt to intervene is 1

1! 48 Fed. Reg. 36358, 36569 (August 10, 1983.) (Policy S ta temen t .)

8312060192 831202 DR ADOCK 05000358 PDR .. / {fh

pending.2/ -

Applicants failed to address MVPP's analysic. The omission fatally undercuts Applicants' position, since at Zimmer, MVPP's proposed contentions are pending.

Nuclear Regulatory Commission (NRC) regulations do not define the term " proceeding," but its application in the regulations confirms MVPP's position. To illustrate, the regulation on alterna-tive licensing procedures applies to " proceedings in progress where hearings have already been requestcd or ordered. . ."EI S imila rly ,

the Comm is s io n ' s ex parte rules, cited by Applicants in a separate context for this stage of the Zimmer case, also are triggered by the existence of a proceeding.

Second, Applicants are wrong to assert that the policy only applies to ongoing hearings. Initially, such an interpretation conflicts with the plain language of the Policy. The duty is subj ect iv e , and occurs where OI or Staff " believes" that a duty exists to inform the Board of new developments.5!

Third, Applicants misstate prior case law to conclude that the duty of disclosure is limited by technicalities such as the formal legal status of proposed contentions. Although the facts in cases cited by the Staff and analysed by Applicants occurred in the context of ongoing proceedings, the relevant rules of law E! "MVPP's Petition f or Reconsideration of September 15, 1983 Order" (October 3, 1983) (Petition f or Reconsideration) .

E! 10 C.F.R. 2.700. (Emphasis added.)

b! 10 C.F.R. 2.780.

5I 48 Fed. Reg. 36358, 36359 (August 10, 1983) (Policy Statement.)

cited by the ruling did not include the explicit limitations ,

1 added by Applicants. As the Commission explained in North Anna, the duty of disclosure arises because it is " vital" to serve "the Commission's primary duty . . . to protect public health and safety.  ! The relevant standard is whether the information is

" material to the licensing decision, and therefore to the public health and safety,"1 nct merely to an ongoing hearing. Contrary to Applicants' preference for legal technicalities, the Commission required " careful, common sense judgments . . ."  !

The reason that the duty to disclose most commonly occurs in licensing hearings is because hearings are near the final licensing d e c is io n , and therefore the consequences of an error are more severe. As the Commis sion explained, At the very beginning of the licensing process, when init ial investigations are being made, the applicant has greater latitude to inqu ire into areas that may prove, when the inquiry is concluded, to be without significance in terms of the licensing decision. At the hearing stage, in contrast, where agency decisionmaking is imm in ent , arguably relevant data must be promptlyfurngphed if the agency is to perform its function.-

Unlike Applicants' position, the Commis sion's explanation serves common sense and the agency mission. The duty to disclose may be of vital assistance for the Licensing Board to determine 6/ _V ir g inia Electric and Power Company (North Anna Power Station, Unit 1 and 2), CCI-76-22, 4 NRC 480, 488 (1976).

1 Id., at 491.

! --8/ Id.

-9

_I d . , at 487-88.

l _

whsthor public hosith cad omfoty conoiderations requien ronowod i

hearings into safety hazards that were missed previously.

II. DELEGATING THE BOARD'S RESPONSIBILITIES TO THE COMMISSION.

Applicants misstate the context of the Commission's decision in Three Mile Island to conclude that the Board should, in effect, et the Commission perform the Board's function.bSI In Three Mile l Island, the Commission did not declare that its function was to substitute for the adjudicatory board in making an initial decision on a motion to reopen, or the relevant evidence necessary for the initial decision. Rather, the Commission was fulfilling its l

] responsibility co review lower decisions.E1! That option still exists I

here, and the Commission has already indicated that it does not i wish to interfere with the orderly course of the Zimmer proceeding.12/ -

Similarly, Applicants suggest that the Board should defer, 1

because the Office of Investigations (OI) will present the report

]

at issue to the Commis s io n . This argument is f rivolous . All OI reports are presented to the Comm is s ion . The point of the Commis- i sion's Policy Statement is to alert Licensing Boards of the circumstances when they do not have to wash their hands of relevant i

i information. Thic case is a clear illustration of such circumstances.

III. RELEVANCE OF THE OI INVESTIGATION OF MVPP'S PETITION.

l l Applicants misstate the issue by lim it ing the relevance of OI's work to an examination of " good cause" f or late filing.EE i

--10/ Applicants' Answer, at 5 n.10.

11/

-- Metropolitan Edison Co. (Three Mila Island Nuclear Station, Unit 1), Order (October 7, 1983).

AS Cincinnati Gas and Electric Co . (Wm. H. Zimmer Nuclear Power

{ Station), Order (August 23, 1983).

--13/ Ap pl ic an t s ' Answer, at 5.

l The proper criterion is whether the information is relevant for reopened hearings, rather than the more limited purpose of only examinin g " good cause" f or la te filing . It has been the law for over a decade that "a matter may be of such gravity that the motion to reopen should be gran+.ed notwithstanding that it mig ht have been presented earlier."Ab! It is impossible to predict whether the 01 report will reveal evidence meeting that threshhold, without first examining OI's work.

Indeed, the information may be crucial for the Board to make an inf ormed decision whether it must f ulf ill this requirement by application of its sua sponte authority due to unexcused intervenor tardiness. Applicants conveniently ignore this po ssibility.

This is not to imply tha t the OI report is necessarily I

irrelevant to " good cau se" f or MVPP 's tardiness. The report may well confirm MVPP's por ition that applicants' misstatements and withholding both exrlain and justif y the public's delay in raising issues that had been withheld from the public record.

Further, the report may well be relevant for examination of Ap plic an t s ' compliance with its duty to disclose during July 1982, when the proposed contentions were admitted for nearly a month. To illustrate, withholding relevant evidence during that time frame could be of decisive significance for MVPP's character and competence contention. In short, an inforced Board decision requires its review of the completed OI report, complemented by the parties' briefing on the relevance of the new information contained therein.

14/

_V ermo n t Yankee Nuclear Power Corporation (Vermont Yankee Station), ALAB-138, 6AEC 520,523 (1973).

i

, , IV.

RELEVANCE OF WARNINGS AGAINST OPEN-ENDED LICENSING PROCEDUR Applicants' f ears of open-ended proceedings based on endless "new developments"11 are ironic, and based on unfair assumptions both about the Licensing Board and MVPP. The irony is that the accuracy of the prophesy is within Applicants' control. As long as Applicants continue to trample on legal quality assurance r e qu ir em e n t s , indeed there will be "new developments." There should be.

If Applicants change courses and begin complying with the law, there will not be such developments.

Contrary to Applicants' assumption, MVPP neither has the resources nor the desire to raise frivolous issues. MVPP's good f

faith is evidenced by its offer to accept time limitations on reopened hearings, and to restrict the proceedings to issues upon

!! which adequate corrective action cannot be agreed.bb! Again, Applicants conveniently overlooked this offer while hysterically a t t ac king MVPP's motives.

S im ila r ly, Applicants' fears assume that the Board would not be able to control its proceedings. MVPP is confident of the Licensing Board's ability to insure orderly litigation. MVPP also believes that it is premature to accept CG&E's j udgment that the job cannot be done, until the Board and all the parties have tried to meet the challen;^.

V. RELEVANCE OF EX PARTE CONCERNS.

Applicants' shrill protest of ex_ parte Board briefings 11I 15/

Applicants' Answer, at 6-7 n.7.

---16/

MVPP Petition, at 10.

ll./ Applicants' Answer, at 8-12.

. .o _7_

challenge the Commission's Statement of Policy. generically, without engaging in the necessary application of sound principles to the facts of this proceeding. Certainly even Applicants would not seriously contend that in ecmera ex parte proceedings are never appropriate.

Applicants uust apply the general prohibition against ex parte contacts to this particular proceeding in order to present a prima facie argument.

MVPP agrees that the preferable policy would be to avoid ex parte proceedings.

Rather, the Board should order the parties to review and brief the OI results for relevance to the proposed contentions, as soon as the report is available.

MVPP does not understand the harm that Applicants would suffer, however. Applicants suggest that the proper course is a public hearing, ra ther than ex parte communications.18/ But a public h ea ring is what Applicants f ear the most, as well as the~most drastic change from the status quo that could result from the alleged misconduct.

Similarly, Applicants assert that ex parte briefings on the merits of MVPP's proposed contentions would "have an incalculable effect on the rights of Applicants in this proceeding."1E! This again is hard to understand, since Applicants also believe that the merits of the contentions are " immaterial" to the issues pending before the Licensing Board.20/ The contradictions expose the weak-ness of Applicants' position. It is too self-serving to be either consistent, or credible.

18/

Id., at 8, 10 n.19.

EE Id., at 10.

S Id., at 8.

VI. RELEVANCE OF MENTOR'S MOTION.

Ignoring the Board's September 15 Memorandum and Order, Applicants reiterate the tired refrain that hearings are unnecessary, in light of the NRC Staff's program.S1/ This assertion cements the relevance and necessity of Mentor's motion for the Board to order an investigation of material false statements by the NRC S taf f and Applic ants through withholding information from the Board.

The significance of Mentor's concern is that hearings may be necessary because of the Staf f's negative leadership at Zimmer.

VII. MOTION TO SUPPLEMENT THE RECORD WITH COMMENTS ON THE COURSE OF ACTION.

MVPP moves that this Board accept its public comments on Applicants' proposed Course of Action. The comments and related exhibits are essential for the Board to understand the threat to public health and safety that the Course of Action represents. The information demonstrates that Applicants plan to systematically waiv e the quality assurance requirements of 10 C.F.R. 50, Appendix B in order to obtain a license for Zimmer. As a result, its relevance for'the Licensing Board may be even greater than OI's findings of previous violations.

It is especially chilling that almost all of the issues raised by MVPP in its comments have been overlooked by the Staff. This is precisely why MVPP moved for public h ea r in g s in May 1982 and June 1983

-- to f ill in the holes in the Staff's enforcement program, holes which represent an unacceptable risk to public health and safety.

Respectfully submitted, Thomas D ev in e Dated: December 2, 1983 Legal Director Jd . , at 7.

CERTIFICATE OF SERVICE I HEREBY CERTIFY that ecpico of tha forcgoing "MVPP R :ponco to Applicents' November 15 Answer and Motion for Leave to File Additional Evidence" has been served upon the following by mailing first-class, postage prepaid, this 2nd day of December,1983.

Judge John H. Frye, III Troy B. Conner, Esquire Chairman, Atomic Safety and Licensing Conner and Wetterhahn Board U.S. Inaclear Regulatory Cannission 1747 Pennsylvania Ave., N.W.

Washington, D.C. 20555 Washington, D.C. 20006 Charles A. Barth, Esquire J&n D. Woliver, Esquire Counsel for the NRC Staff Clermont County Ctumunity Council Box 181 Office of the Executive Taryal Direccor Batavia, OH 45103 U.S. Nuclear Regulatory Comnission Washington, D.C. 20555 Brian Cassidy, Esquire Regional Counsel Dr. Frank F. Hooper Sierra Nevada Aquatic Raaaarch Federal Emergency Management Imboratory Agency - Region I Route 1, Box 198 John W. McCormack PCCH Marmoth Iakes, CA 93546 Ibston, MA 02109

.Dr. Stanley M. Livingston George E. Pattison, Esquire Administrative Judge Prosecuting Attorney of 1005 Calle Largo Clermont County, Ohio 462 Main Street Sante Fe, New Mexico 87501 Batavia, GI 45103 Nuclear Regulatory Camissioners (4) Docketing and Service Brand U.S. Nuclear Regulatory Ccanission Washington, D.C. 20555 Office of the Secretary U.S. Nuclear Regulatory Ccanission Washington, D.C. 20555 Chairman, Atomic Safety and

! Licensing Appeal Board Panel U.S. Nuclear Regulatory Conmission David K. Martin, Esquire i

Washington, D.C. 20555 Assistant Attorney General l Acting Director, Division of Robert F. Warnick Environmental Iaw Director, Enforcement and 209 St. Clair Street Investigation Frankfort, KY 40601 NRC Region III 799 Roosevelt Road William J. Moran, Esquire Glen Ellyn, IL 60137 Vice President and General Counsel The Cincinnati Gas and Electric Company Deborah Faber Webb, Esquire 7967 Alexandria Pike P.O. Box 960 -

Alexandria, KY 41001 Cincinnati, OH 45201 Andrew B. Dennison, Esquire Attorney at Law 200 Main Street / n

• Batavia, OH 45103 /

j)/ p,(f Thomas Devine Legal Director l

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