ML20083A838

Comments on ALAB-753 Relevancy to ASLB Consideration of Motion to Reconsider 830915 Decision Denying Miami Valley Power Project Motion to Reopen

ML20083A838
Person / Time
Site:	Zimmer
Issue date:	12/16/1983
From:	Conner T CINCINNATI GAS & ELECTRIC CO., CONNER & WETTERHAHN
To:	Frye J, Hooper F, Livingston M Atomic Safety and Licensing Board Panel
References
ALAB-753, NUDOCS 8312200421
Download: ML20083A838 (2)

Text

-

LAW OFFICES GONNER Oc WETTERHAHN. P.C. blfhC 1747 PEN S E YLVANI A AVENU E. N. W.

1"A Rl "o. *frM"ufuk W^sa NoToN. o.c. soooo RO. m M.RAO R gy Ec 19 g ',.,a INORID M OLSON ARC MOORE.JR. ,,

R O B E R T u . P L* R L gr ; g g*,;!SQ !833 3500

. ,l % 'l,, ,. . .

" December 16, 1983 s 0g,t 7,f, - " ISS:

. . ATOMLAW Cg Judge John H. ? rye, III Dr. Frank F. Hooper Chairman, Atomic Safety and Chairman of Resource Licensing Board Ecology Program U.S. Nuclear Regulatory School of Natural Commission Resources Washington, D.C. 20555 University of Michigan Ann Arbor, Michigan 48104 Dr. M. Stanley Livingston Administrative Judge 1005 Calle Largo Sante Fe, New Mexico -87501 l

In the Matter of The Cincinnati Gas & Electric Company, et al.

(Wm. H. Zimmer Nuclear Power Station)

Docket No. 50-358 ,

Gentlemen:

In fulfilling our responsibility to keep the Licensing Board informed of pertinent legal developments regarding matters before it, I wish to call the Board's attention to the recent decision by the Appeal Board in Louisiana Power &

Light Company (Wa terf ord Steam Electric Station, Unit 3),

ALAB-753, 18 NRC (December 9, 1983). I point out below several points covered in that decision which are relevant to the Board's consideration of the pending motien to recQnsider the September 15, 1983 decision denying Miami Valley Power Project's motion to reopen.,

1. At the oral argument held on the motion to recon-sider on December 9, 1983, the Board inquired as to the latest authority on reopening and whether the Commission had ever considered " degrees of significance" in addressing the second factor for reopening under Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1),

ALAB-462, 7 NRC 320, 338 (1978). The Appeal Board's dis-cussion of the second factor (i.e., does the motion to reopen address a significant sefety or environmental issue?)

in Waterford (slip op, at 2-33) ccmpels the inference that each of the requirements for reopening must be independently met, and that a weak shesing on one factor cannot be 8312200421 833216 PDR ADOCK 05000358

}

PDR

Judga John H. Frye, III i Dr. M. Stanlcy Livingston Dr. Frank F. Hoopar

+ December 16, 1983 Page 2 overcome by a strong showing on another. Otherwise, the Appeal Board would not have been able to rule against reopening simply by its " focus . . . on the second reopening criterion" (Waterford, slip op. at 4).

)

2. At page 4, footnote 3 of the Waterfor_d_ decision, i the Appeal Board confirms that "a new, previously uncontest-ed issue" must satisfy both the criteria for reopening and the criteria for admitting late contentions.

On another point in Applicants' Answer to MVPP's motion to reopen the record (June 20, 1983), Applicants argued at

pages 6 et sec. that the Licensing Board lacks jurisdiction over the motion to reopen because the Initial Decision j (LBP-82-48, 15 NRC 1549) terminated this Board's jurisdic- ,

tion except as to two narrow emergency planning issues on remand from the Appeal Board (ALAB-727, 17 NRC 760). This restated the basic principle that a Board loses jurisdiction over all matters as to which it has rendered a final 2 decision and, conversely, retains jurisdiction only as to i those undecided matters pending before it at the time of its 1 decision. It is also noted that the Waterford decision (slip op at 14-15) continues this precedent.

Sincerely, 9

V ,

W. 1, Troy B. onner, Jr.

Counsel for the Applicants i cc: Service List 1

a A

4 O

1 1

J

-. _ . _ . . .