ML20082P850

Response Opposing City of Mentor 831115 Memorandum in Support of NRC 831031 Motion to Defer Rulings on Miami Valley Power Project Motion to Reopen Record.Motion W/O Merit.Certificate of Svc Encl.Related Correspondence

ML20082P850
Person / Time
Site:	Zimmer
Issue date:	12/06/1983
From:	Conner T CINCINNATI GAS & ELECTRIC CO., CONNER & WETTERHAHN
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8312090206
Download: ML20082P850 (9)

Text

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, , -- RELATED CORRU?0NDENCE j t DOC KETED U%C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION rr , ' ^

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Before the Atomic Safety and Licensing AppeEI#B6'afdjf In the Matter of )

)

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

)

(Wm. H. Zimmer Nuclear Power )

Station) )

APPLICANTS' RESPONSE TO CITY OF MENTOR'S MEMORANDUM IN SUPPORT OF STAFF'S MOTION TO DEFER AND APPLICANTS' RESPONSE TO MVPP'S MOTION FOR LEAVE TO FILE ADDITIONAL EVIDENCE Preliminary Statement On November 15, 1983, t.he City of Mentor filed a memorandum in support of the NRC Staff's " Motion to Defer Rulings on MVPP's Motion to Reopen," filed October 31, 1983.

Basically, the Staff had taken the position that the Atomic Safety and Licensing Board (" Licensing Board" or " Board")

should defer its ruling on the motion by Miami Valley Power Project ("MVPP") for reconsideration until after the com-pletion of an ongoing investigation by the NRC Office of Investigation ("OI") .

The City of Mentor's memorandum agreed with the Staff's position, and also took the position that the OI inves-tigation might disclose whether the Staff had previously improperly withheld relevant documents. Although the City of Mentor's memorandum was also labeled a " motion," it sought the same relief requested by the Staff in its motion,

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albeit on different grounds. MVPP filed a memorandum in support of the City of Mentor's motion on November 30, 1983, and also moved separately for leave to file additional material on its proposed contentions. Pursuant to the Board's Memorandum to the Parties of December 2, 1983, The Cincinnati Gas & Electric Company, et al. (" Applicants")

address the City of Mentor's motion and also answers MVPP's separate motion.

Argument In its motion tc defer, the Staff stated its belief "that the Licensing Board should defer ruling on MVPP Petition for Reconsideration until the Commission's Office of Investigation (OI) completes its ongoing investigation

. . . . "O In its supporting memorandum, the City of Mentor stated that it "strongly agrees with the premise of the Staff's motion to defer rulings until completion of a major report on Zimmer by the Office of Investigation,"U adding as a separate ground the possibility that the NRC had failed to make certain records or information available to the 1/ NRC Staff's Answer to MVPP's Petition for Reconsideration of September 15, 1983 Order and Staff's Motion to Defer Rulings on MVPP's Motion to Reopen at 3 (October 31, 1983).

2/ 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 (November 15, 1983).

s public. The City of Mentor asserted that "[t]he public should not be deprived of its due process rights without l full scrutiny of all the relevant conduct by all the rele-vant parties."El The City of Mentor's position lacks merit. It refers to allegations by MVPP that MVPP could not present its proposed contentions earlier because Applicants and the Staff withheld relevant 1information and made certain materi-al false statements.b! Nowhere, however, does the City of Mentor identify any relevant information withheld by Appli-cants or the Staff, nor does it specify any material false statements. MVPP likewise makes sweeping allegations of

" misconduct of other parties,"5_/ but makes no showing at all of any failure "to disclose significant evidentiary information."6_/

Indeed, inasmuch as the allegations raised by the City of Mentor and MVPP seem to refer only to the alleged with-holding of documents by the NRC in response to MVPP's requests under the Freedom of Information Act, it is 3/ Id. at 4.

4_/ City of Mentor's Memorandum and 2.

5/ MVPP's Memorandum in Support of Mentor's Motion at 1 (November 22, 1983).

6/ Id. The same generalized assertion without any basis or specificity is repeated in MVPP's Response to Applicants' November 15 Answer and Motion for Leave to File Additional Evidence at 5, 8 (December 2, 1983). .,

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. 4 difficult to see how Applicants are even allegedly involvede or why such allegations against the Staff are relevant to this licensing proceeding.# In essence, the City of Mentc,e

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and MVPP are simply speculating that the OI investigation will turn up some documant which intervenors will then claim was withheld.

Moreover, both the City of Mentor and MVPP erroneously 0

equate the right of an individual to a hearing on late 1

contentions in an NRC licensing proceeding with the general right of a party aggrieved by agency action to a hearing as

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a matter of constitutional law. Presumably, intervenors are not challenging the vali ity of the requirements

• set by the Commission for hearing late contentions, most recently reaffirmed by the Commission in Catawba:

It is well-established that Section 189a. of the Atomic Energy Act does not provide an unqualified 'right to a hearing. Rather, the Commission is authorized to establish reasonable regulations on procedural matters like the filing of petitions to intervene and on the proffering of contentions. BPI

v. AEC, 502 F.2d 424 (D.C. Cir. 1974),

Easton Utilities Commission v. AEC, 424 F.2d 847 (D.C. Cir. 1970).7/

Thus, as Catawba notes, the courts have approved the validity of the Commission's rules qualifying the right of

.an intervenor to a hearing upon proposed contentions. Since

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See Duke Power Company (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1045 (1983).

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those rult s are valid under a constitutional grant of j authority by Congress in Section 189a of the Act,8_/ it follows that those rules afford intervenors the due process to which they are entitled.1I Accordingly, the question of f

whether MVPP has satisfied the Commission's requirements for admitting late contentions is entirely lacking in any constitutional dimension. The due process argument asserted by the City of Mentor and MVPP is merely a strawman to divert attention, once again, away from the fact that MVPP has failed to meet those requirements.EI l

8_/ BPI v. Atomic Energy Commission, 502 F.2d 424 (D.C.

Cir. 1974).

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9/ MVPP's discussion of the Kerr-McGee decision confuses the issue. See Kerr-McGee Corporation (West Chicago Rare Earth Facility), CLI-82-2, 15 NRC 232 (1982).

That case simply determined that a formi , trial-type hearing was not required by Section 189a or the due process cause for every licensing action by the Commission.

M/ A point raised by MVPP concerns a vague allegation of

" bias." ilare, MVPP accuses the NRC Staff and Applicants of having " concealed material information from the pub 3ic" (MVPP's Memorandum in Support of Mentor's Motion at 7), without establishing what information was allegedly " concealed" or how it was material to any allegation raised by MVPP. MVPP's challenge to ".the partiality of the NRC Staff in its role before this Board" (id.) is frivolous since the Staff is, of course, a parW to the proceeding, and is expected to tiake a litigating position on contested issues. The responsibilities of licensing boards are independent of those of the Staff. Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 202 (1978). For this reason, the Commission roles on disqualification pertain only to licensing board members, not the Staff. See 10 C.F.R. S2.704.

(Footnote Continued)

F

Finally, MVPP has moved the Board to accept MVPP's public comments on Applicants' proposed Course of Action transmitted to NRC Region III on October 5, 1983. The Course of Action submittal was required by Section IV.B. (1) (b) of the Order to Show Cause and Order Immediately j Suspending Construction issued by the Commission on November 12, 1982.bI MVPP's request should be denied. First, the Licensing Board has already denied MVPP's motion t.' reopen based upon the existing record, and the Board is now con-  !

sideringr only MVPP 's motion for reconsideration. A party may not seek to introduce new matters into the record by way of a request for reconsideration.EI Second, MVPP's commcats on the proposed Course of L

(- Action submitted by Applicants are irrelevant to the admis-sion of MVPP's proposed late contentions. Indeed, the proffer of MVPP's comments simply underscores the fact that t

MVPP wishes this Board to perform a parallel review of activities occurring under the Commission's Order to Show Cause. As previously stated, Applicants submit that the Commission has never authorized nor indicated its desire (Footnote Continued)

The authorities upon which MVPP relies on the other hand, relate to decisional officers.

11/ See The Cincinnati Gas & Electric Company (Wm. H.

Zimmer Nuclear Power Station), CLI-82-33, 16 NRC 1489, 1498 (1982).

12/ Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1) , ALAB-4 7 7, 7 NRC 766, 768 (1978).

that this Board undertake that function. The motion should therefore be denied.

Conclusion For the reasons discussed more fully above, the due process arguments raised by the City of Mentor are without merit and should not be the basis of a deferral of the Licensing Board's ruling on the pending motion by MVPP for reconsideration. The Board should also deny MVPP's motion to supplement the record with its comments on the Course of Action'for Zimmer.

Respectfully submitted, CONNER & WETTERHAHN, P.C.

& 8. Ca m % /t e Troy Conner, Jr.

l Mark J. Wetterhahn Robert M. Rader Counsel for the Applicants December 6, 1593

e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Appeal Licensing Board In tho 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 City of Mentor's Memorandum in Support of Staff's Motion to Defer and Applicants' Response to MVPP's Motion for Leave to File Additional Evidence," dated December 6, 1983, in the captioned matter, have been served upon the following by deposit in the United States mail this 6th day of December, 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 '7501 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 Saf~ety 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. 2C535

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 Gener'al 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 l 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 o_

Robert M. Rader cc: Robert F. Warnick Director, Enfo";ement and Investigation NRC Region III 799 Roosevelt Road Glen Ellyn, Illinois 60137

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