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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20056E5101993-08-11011 August 1993 Comment Opposing Proposed Rule 10CFR20 Re Radiological Criteria for Decommissioning ML20059P0531990-10-15015 October 1990 Comment Opposing Proposed Rules 10CFR2,50 & 54 Re Nuclear Power Plant License Renewal IR 05000358/19820101986-06-24024 June 1986 Applicant Exhibit A-49,consisting of Forwarding Partially Withheld Safety Insp Rept 50-358/82-10 on 820607- 0818 (Ref 10CFR2.790) & Notice of Violation ML20129A3751985-05-16016 May 1985 Order Revoking CPPR-88,based on Util 840127 Plan to Convert Facility to Coal Fuel ML20133N3621985-03-14014 March 1985 Unexecuted Amend 3 Terminating Indemnity Agreement B-85 ML20094C3571984-08-0202 August 1984 Transmittal of Info Re Util 840320 Motion for Withdrawal of OL Application.Fuel Removed from Site,Steam Supply Sys Modified & CRD Mechanisms Removed.Certificate of Svc Encl ML20087H7881984-03-20020 March 1984 Motion Requesting Issuance of Order Authorizing Withdrawal of Application.Plant Will Be Used as Part of New Fossil fuel-fired Electric Generating Plant.Certificate of Svc Encl ML20087N2281984-03-0101 March 1984 Endorsement 25 to Nelia Policy NF-249 ML20079F8181984-01-16016 January 1984 Response Opposing Miami Valley Power Project 831231 Proposed Issues & Support for Contentions Re Qa.Issues Not Specific or Litigable.Certificate of Svc Encl ML20083J5321983-12-31031 December 1983 Proposed Issues & Prospective Witnesses Supporting Miami Valley Power Project Proposed Contentions Re Qa,Character & Competence.Certificate of Svc Encl ML20079H6901983-12-14014 December 1983 Petition Per 10CFR2.206 to Defer Judgment or Decision on Proposed Course of Action for Completion of Facility Until Suppl Created for Record of J Keppler 831215 Briefing.W/O Encls ML20082P8501983-12-0606 December 1983 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 ML20082M5791983-12-0202 December 1983 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 ML20082L0991983-11-30030 November 1983 Memorandum in Support of City of Mentor Motion to Further Defer Rulings Until Completion of Investigation Into Matl False Statements by NRC & Applicants.Certificate of Svc Encl ML20082D6991983-11-15015 November 1983 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 ML20081M7951983-11-15015 November 1983 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 ML20085K7841983-10-18018 October 1983 Answer Opposing Miami Valley Power Project 831003 Petition for Reconsideration of ASLB 830915 Memorandum & Order Denying Project Motion to Reopen Record to Admit Eight Late Filed Contentions on Qa.Certificate of Svc Encl ML20078K5621983-10-13013 October 1983 Memorandum in Support of Miami Valley Power Project (MVPP) Petition for Reconsideration of ASLB 830915 Order.Mvpp Urges ASLB to Address Stds for Reopening Record.Issues Should Be Included to Ensure Complete Record.Certificate of Svc Encl ML20078F9641983-10-0606 October 1983 Notification to Commission of Miami Valley Power Project Misrepresentation in 831003 Motion for Reconsideration of ASLB 830915 Order.No Util Counsel Communicated W/Govt Accountability Project.Certificate of Svc Encl ML20078F8891983-10-0606 October 1983 Notice of Jh Laverty Employment W/Conner & Wetterhahn,Pc. Laverty Will Not Participate in Matters Leading to OL Issuance Due to Previous Employment W/Commissioner Roberts. Certificate of Svc Encl ML20078F8751983-10-0606 October 1983 Notice of Jh Laverty Employment W/Conner & Wetterhahn,Pc. Previous Employment W/Commissioner Roberts Eliminates Any Contribution to Zimmer Case ML20080P0771983-10-0303 October 1983 Motion for Extension to File Appeal Until 10 Days After Svc of ASLB Decision on Miami Valley Power Project Petition for Reconsideration.Certificate of Svc Encl ML20080P0141983-10-0303 October 1983 Petition for Reconsideration of ASLB 830915 Order Denying Miami Valley Power Project Motion to Reopen Record for Admission of Eight Proposed Contentions.Addl Info Provided Since Original Decision.Certificate of Svc Encl ML20080P0481983-09-26026 September 1983 Affidavit of T Devine Summarizing 830919 Discussion W/ C Weaver Re Summary of Interview in Torrey Pines Rept. Weaver Seriously Challenges Completeness of Interview Summary ML20080P0291983-09-26026 September 1983 Affidavit of D Jones for Govt Accountability Project Protesting Torrey Pines Rept Chapter on Cases Studies.Ref to Author Interviews Incomplete & Thus Inaccurate.Analysis of Whistleblower Missed Real Problem of Lack of Freedom ML20080P0671983-09-24024 September 1983 Affidavit of R Reiter for Govt Accountability Project Expressing Dissatisfaction of W/Summarized Interview in Torrey Pines Rept ML20080F2451983-09-13013 September 1983 Memorandum Supporting Miami Valley Power Project 830603 Motion to Reopen Record for Admission of Eight Contentions. Torrey Pines Mgt Review & NRC Repts Confirm Project Substantially Correct on Qa.Certificate of Svc Encl ML20080E6921983-09-12012 September 1983 Answer Opposing Miami Valley Power Project 830826 Motion for Leave to Submit New Documents & for ASLB Review of Pending Investigations.Motion Unjustified Attempt to Bend Rules on Late Contentions.W/Certificate of Svc ML20080D2791983-08-26026 August 1983 Motion for Leave to Submit New Evidence in Support of 830603 Proposed Contentions & for ASLB Review of Significant Pending Investigations.Certificate of Svc Encl ML20080C7171983-08-25025 August 1983 Answer Opposing Miami Valley Power Project 830811 Motion for Leave to File Reply Brief to Util & NRC Answers to Project 830712 Motion to Compel Discovery.Project Had Opportunity to Brief Issue in Original Motion.Certificate of Svc Encl ML20076A6451983-08-15015 August 1983 Notice of Substitution of Counsel for Amicus Curiae Brief & Appearance Before Aslb.Certificate of Svc Encl ML20024E5591983-08-11011 August 1983 Motion for Leave to File Reply Brief to Applicant & NRC 830803 & 01,respectively,answers Opposing Miami Valley Power Project Motion to Compel Discovery.Assertion of Boundary on Discovery Should Be Briefed.Certificate of Svc Encl ML20024E3941983-08-0505 August 1983 Motion for Leave to File Reply Brief & for Clarification of Responsibility to Duplicate Previous Analysis & Evidentiary Submissions.Util Challenge Frivolous,Heavy on Chutzpah & Deficient on Common Sense.Certificate of Svc Encl ML20077L5161983-08-0303 August 1983 Response Opposing Miami Valley Power Project 830707 Reply Brief Supporting Project 830603 Motion to Reopen Record.Aslb Lacks Jurisdiction to Hear Motion to Reopen to Admit Eight late-filed Contentions.Certificate of Svc Encl ML20024D1381983-07-27027 July 1983 Answer Opposing Miami Valley Power Project 830712 Motion for Protective Order to Withhold Identity of Persons Upon Whose Allegations Project Relied in Seeking to Reopen Record.Motion W/O Merit.Certificate of Svc Encl ML20024D1171983-07-27027 July 1983 Answer Opposing Miami Valley Power Project 830712 Motion to Defer Ruling on Review of ALAB-727 Pending Ruling on Motions to Reopen.No Justification Given to Delay Review for Unrelated Matters ML20024D1261983-07-27027 July 1983 Answer Opposing Miami Valley Power Project 830712 Motion to Reopen Record for Admission of Eight QA Contentions. Motion Actually Is Untimely Appeal from Earlier ASLB Rulings.Relief Sought Contrary to Commission Orders ML20080A2721983-07-21021 July 1983 Response to Applicant Motion for Leave to Respond to Miami Valley Power Project Reply Brief.Applicant Should Respond Only to Substance of Proposed Contentions Re QA Program Inadequacy.Certificate of Svc Encl ML20076L4691983-07-15015 July 1983 Motion for Leave to Respond by 830729 to Miami Valley Power Project (MVPP) Reply Brief Re Applicant Opposition to Eight QA Contentions.Mvpp Reply Distorts Record & Applicant Position.Certificate of Svc Encl ML20072N4901983-07-12012 July 1983 Motion for Protective Order to Shield Identity of Affiants Providing Portion of Basis for Miami Valley Power Project Eight Proposed Contentions.Certificate of Svc Encl ML20072N4741983-07-12012 July 1983 Motion to Defer Ruling on Whether to Review ALAB-727 Until ASLB & Aslab Rule on Miami Valley Power Project 830603 & 0712 Motions to Reopen Record to Admit Contentions on QA & Character & Competence,Or Alternatively,To Reopen Record ML20072N4631983-07-12012 July 1983 Motion to Reopen Record for Admission of Eight Contentions on QA & Corporate Character & Competence.Aslab Has Jurisdiction Even If ASLB Lacks Jurisdiction to Reopen Record ML20072N4501983-07-12012 July 1983 Reply Brief Supporting Miami Valley Power Project 830603 Motion to Reopen Record for Admission of Eight Contentions on QA & Corporate Character & Competence & Motion to Compel Discovery on Contentions ML20072K7331983-07-0101 July 1983 Answer Opposing Miami Valley Power Project 830629 Motion for Leave to File Reply Brief to Util & NRC Answers to Project 830603 Motion to Reopen Record.No Purpose Would Be Served by Permitting Redundant Discussion.Certificate of Svc Encl ML20024B0591983-06-29029 June 1983 Motion for Leave to File Reply Brief,By 830706,to NRC & Util 830630 Answers to Miami Valley Power Project 830603 Motion to Reopen Record to Admit Eight Contentions on QA & Util Character & Competence.Certificate of Svc Encl ML20072F4481983-06-22022 June 1983 Memorandum Supporting Miami Valley Power Project 830602 Motion to Reopen Record to Admit Eight Contentions on QA & Lack of Corporate Character & Competence.Reopening Necessary to Foster Public Confidence in Nrc.W/Certificate of Svc ML20024A6621983-06-20020 June 1983 Response Opposing Miami Valley Power Project 830603 Motion to Reopen Record for Admission of Eight QA Contentions. Motion Untimely ML20024A6661983-06-20020 June 1983 Response Opposing Motions to File Amicus Curiae Brief in Support of Miami Valley Power Project Motion to Reopen Record for Admission of Eight QA Contentions.Certificate of Svc Encl ML20076J1361983-06-16016 June 1983 Ohio Sierra Club Amicus Curiae Brief Supporting Miami Valley Power Project Motion to Reopen Record to Admit Eight Contentions.Contentions Provide Evidence That QA Problems Exist.Certificate of Svc Encl ML20076J1201983-06-16016 June 1983 Petition for Leave to File Amicus Curiae Brief Re Miami Valley Power Project Motion to Reopen Record to Admit Eight Contentions on QA & Character & Competence.Requests Extension of Time.Certificate of Svc Encl 1993-08-11
[Table view] Category:PLEADINGS
MONTHYEARML20087H7881984-03-20020 March 1984 Motion Requesting Issuance of Order Authorizing Withdrawal of Application.Plant Will Be Used as Part of New Fossil fuel-fired Electric Generating Plant.Certificate of Svc Encl ML20079F8181984-01-16016 January 1984 Response Opposing Miami Valley Power Project 831231 Proposed Issues & Support for Contentions Re Qa.Issues Not Specific or Litigable.Certificate of Svc Encl ML20079H6901983-12-14014 December 1983 Petition Per 10CFR2.206 to Defer Judgment or Decision on Proposed Course of Action for Completion of Facility Until Suppl Created for Record of J Keppler 831215 Briefing.W/O Encls ML20082P8501983-12-0606 December 1983 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 ML20082M5791983-12-0202 December 1983 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 ML20082L0991983-11-30030 November 1983 Memorandum in Support of City of Mentor Motion to Further Defer Rulings Until Completion of Investigation Into Matl False Statements by NRC & Applicants.Certificate of Svc Encl ML20081M7951983-11-15015 November 1983 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 ML20085K7841983-10-18018 October 1983 Answer Opposing Miami Valley Power Project 831003 Petition for Reconsideration of ASLB 830915 Memorandum & Order Denying Project Motion to Reopen Record to Admit Eight Late Filed Contentions on Qa.Certificate of Svc Encl ML20078K5621983-10-13013 October 1983 Memorandum in Support of Miami Valley Power Project (MVPP) Petition for Reconsideration of ASLB 830915 Order.Mvpp Urges ASLB to Address Stds for Reopening Record.Issues Should Be Included to Ensure Complete Record.Certificate of Svc Encl ML20080P0771983-10-0303 October 1983 Motion for Extension to File Appeal Until 10 Days After Svc of ASLB Decision on Miami Valley Power Project Petition for Reconsideration.Certificate of Svc Encl ML20080P0141983-10-0303 October 1983 Petition for Reconsideration of ASLB 830915 Order Denying Miami Valley Power Project Motion to Reopen Record for Admission of Eight Proposed Contentions.Addl Info Provided Since Original Decision.Certificate of Svc Encl ML20080F2451983-09-13013 September 1983 Memorandum Supporting Miami Valley Power Project 830603 Motion to Reopen Record for Admission of Eight Contentions. Torrey Pines Mgt Review & NRC Repts Confirm Project Substantially Correct on Qa.Certificate of Svc Encl ML20080E6921983-09-12012 September 1983 Answer Opposing Miami Valley Power Project 830826 Motion for Leave to Submit New Documents & for ASLB Review of Pending Investigations.Motion Unjustified Attempt to Bend Rules on Late Contentions.W/Certificate of Svc ML20080D2791983-08-26026 August 1983 Motion for Leave to Submit New Evidence in Support of 830603 Proposed Contentions & for ASLB Review of Significant Pending Investigations.Certificate of Svc Encl ML20080C7171983-08-25025 August 1983 Answer Opposing Miami Valley Power Project 830811 Motion for Leave to File Reply Brief to Util & NRC Answers to Project 830712 Motion to Compel Discovery.Project Had Opportunity to Brief Issue in Original Motion.Certificate of Svc Encl ML20024E5591983-08-11011 August 1983 Motion for Leave to File Reply Brief to Applicant & NRC 830803 & 01,respectively,answers Opposing Miami Valley Power Project Motion to Compel Discovery.Assertion of Boundary on Discovery Should Be Briefed.Certificate of Svc Encl ML20024E3941983-08-0505 August 1983 Motion for Leave to File Reply Brief & for Clarification of Responsibility to Duplicate Previous Analysis & Evidentiary Submissions.Util Challenge Frivolous,Heavy on Chutzpah & Deficient on Common Sense.Certificate of Svc Encl ML20077L5161983-08-0303 August 1983 Response Opposing Miami Valley Power Project 830707 Reply Brief Supporting Project 830603 Motion to Reopen Record.Aslb Lacks Jurisdiction to Hear Motion to Reopen to Admit Eight late-filed Contentions.Certificate of Svc Encl ML20024D1381983-07-27027 July 1983 Answer Opposing Miami Valley Power Project 830712 Motion for Protective Order to Withhold Identity of Persons Upon Whose Allegations Project Relied in Seeking to Reopen Record.Motion W/O Merit.Certificate of Svc Encl ML20024D1261983-07-27027 July 1983 Answer Opposing Miami Valley Power Project 830712 Motion to Reopen Record for Admission of Eight QA Contentions. Motion Actually Is Untimely Appeal from Earlier ASLB Rulings.Relief Sought Contrary to Commission Orders ML20024D1171983-07-27027 July 1983 Answer Opposing Miami Valley Power Project 830712 Motion to Defer Ruling on Review of ALAB-727 Pending Ruling on Motions to Reopen.No Justification Given to Delay Review for Unrelated Matters ML20080A2721983-07-21021 July 1983 Response to Applicant Motion for Leave to Respond to Miami Valley Power Project Reply Brief.Applicant Should Respond Only to Substance of Proposed Contentions Re QA Program Inadequacy.Certificate of Svc Encl ML20076L4691983-07-15015 July 1983 Motion for Leave to Respond by 830729 to Miami Valley Power Project (MVPP) Reply Brief Re Applicant Opposition to Eight QA Contentions.Mvpp Reply Distorts Record & Applicant Position.Certificate of Svc Encl ML20072N4501983-07-12012 July 1983 Reply Brief Supporting Miami Valley Power Project 830603 Motion to Reopen Record for Admission of Eight Contentions on QA & Corporate Character & Competence & Motion to Compel Discovery on Contentions ML20072N4631983-07-12012 July 1983 Motion to Reopen Record for Admission of Eight Contentions on QA & Corporate Character & Competence.Aslab Has Jurisdiction Even If ASLB Lacks Jurisdiction to Reopen Record ML20072N4741983-07-12012 July 1983 Motion to Defer Ruling on Whether to Review ALAB-727 Until ASLB & Aslab Rule on Miami Valley Power Project 830603 & 0712 Motions to Reopen Record to Admit Contentions on QA & Character & Competence,Or Alternatively,To Reopen Record ML20072N4901983-07-12012 July 1983 Motion for Protective Order to Shield Identity of Affiants Providing Portion of Basis for Miami Valley Power Project Eight Proposed Contentions.Certificate of Svc Encl ML20072K7331983-07-0101 July 1983 Answer Opposing Miami Valley Power Project 830629 Motion for Leave to File Reply Brief to Util & NRC Answers to Project 830603 Motion to Reopen Record.No Purpose Would Be Served by Permitting Redundant Discussion.Certificate of Svc Encl ML20024B0591983-06-29029 June 1983 Motion for Leave to File Reply Brief,By 830706,to NRC & Util 830630 Answers to Miami Valley Power Project 830603 Motion to Reopen Record to Admit Eight Contentions on QA & Util Character & Competence.Certificate of Svc Encl ML20072F4481983-06-22022 June 1983 Memorandum Supporting Miami Valley Power Project 830602 Motion to Reopen Record to Admit Eight Contentions on QA & Lack of Corporate Character & Competence.Reopening Necessary to Foster Public Confidence in Nrc.W/Certificate of Svc ML20024A6661983-06-20020 June 1983 Response Opposing Motions to File Amicus Curiae Brief in Support of Miami Valley Power Project Motion to Reopen Record for Admission of Eight QA Contentions.Certificate of Svc Encl ML20024A6621983-06-20020 June 1983 Response Opposing Miami Valley Power Project 830603 Motion to Reopen Record for Admission of Eight QA Contentions. Motion Untimely ML20076J1201983-06-16016 June 1983 Petition for Leave to File Amicus Curiae Brief Re Miami Valley Power Project Motion to Reopen Record to Admit Eight Contentions on QA & Character & Competence.Requests Extension of Time.Certificate of Svc Encl ML20076J1361983-06-16016 June 1983 Ohio Sierra Club Amicus Curiae Brief Supporting Miami Valley Power Project Motion to Reopen Record to Admit Eight Contentions.Contentions Provide Evidence That QA Problems Exist.Certificate of Svc Encl ML20024A0801983-06-10010 June 1983 Motion of Appalachia-Science for Extension to File Previously Submitted Amicus Curiae Brief Supporting Miami Valley Power Project Renewed Attempt to Obtain Hearing on Eight QA Contentions.Certificate of Svc Encl ML20024A0771983-06-10010 June 1983 Motion of Cumberland Chapter of Sierra Club for Extension to File Previously Submitted Amicus Curiae Brief Supporting Miami Valley Power Project Renewed Attempt to Obtain Hearings on Eight QA Contentions ML20071P8901983-06-0606 June 1983 Brief Supporting Miami Valley Power Project Request to Reopen Licensing Hearing Re Plant Operation.Certificate of Svc Encl ML20071P9121983-06-0606 June 1983 Motion for Leave to File Amicus Curiae Brief Supporting Miami Valley Power Project Motion to Reopen Record to Admit Eight Contentions on QA & Character & Competence ML20071P8851983-06-0606 June 1983 Request to File Amicus Curiae Brief Supporting Miami Valley Power Project Efforts to Obtain Further Public Hearing ML20071Q0241983-06-0303 June 1983 Amicus Curiae Brief Supporting Miami Valley Power Project Motion to Reopen Record for Admission of Eight Contentions on QA & Util Character & Competence.Hearings Only Comprehensive Way to Address Problems.W/Certificate of Svc ML20023D8641983-06-0303 June 1983 Motion to Reopen Record for Admission of Eight Contentions on QA & Character & Competence Or,Alternatively,For ASLB to Exercise Discretion to Consider Whether Stds for 830715 Demonstration of Sua Sponte Authority Met ML20072N4281983-06-0202 June 1983 Motion to Reopen Record for Admission of Eight Contentions on QA & Corporate Character & Competence,Or Alternatively, for ASLB to Consider Whether Stds for 820715 Exercise of Sua Sponte Authority Exists ML20076J2001983-05-31031 May 1983 Cumberland Chapter of Sierra Club Request to File Amicus Curiae Brief Supporting Miami Valley Power Project Renewed Attempt to Obtain Hearing on Eight QA Contentions ML20076J1641983-05-20020 May 1983 Appalachia-Science in the Public Interest Request to File Amicus Curiae Brief Supporting Miami Valley Power Project Attempt to Obtain Hearing on Eight QA Contentions ML20076J2091983-05-20020 May 1983 Cumberland Chapter of Sierra Club Amicus Curiae Brief Supporting Miami Valley Power Project Renewed Attempt to Obtain Hearing on Eight QA Contentions.Util Cannot Be Trusted to Correct Deficiencies.Certificate of Svc Encl ML20076J1691983-05-17017 May 1983 Appalachia-Science in the Public Interest Amicus Curiae Brief Supporting Miami Valley Power Project Renewed Attempt to Obtain Hearings on Eight QA Contentions.Certificate of Svc Encl ML20070M1601983-01-0707 January 1983 Answer in Opposition to Miami Valley Power Project 821223 Memorandum & Motion for Notification of Future Communications & Prohibition of Further Improper Ex Parte Contacts.Nrc Correspondence & Certificate of Svc Encl ML20079J1781982-12-23023 December 1982 Supplemental Memorandum in Support of Miami Valley Power Project 820820 Petition for Reconsideration of Commission 820730 Order & Motion for Notification of All Future third- Party Communications.Certificate of Svc Encl ML20070F1091982-12-16016 December 1982 Answer Opposing Miami Valley Power Project 821130 Petition to Establish Detailed Structure for Public Participation Through Audit.Intervenor Fails to Demonstrate Process Necessary to Carry Out NRC Goals.Certificate of Svc Encl ML20070C5211982-12-10010 December 1982 Memorandum Supporting Zimmer Area Citizens-Zimmer Area Citizens of Ky & City of Mentor,Ky 821119 Petition for Appointment of Consulting Firm to Review & Monitor third- Party Audit.Certificate of Svc Encl 1984-03-20
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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.
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, 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
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>---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
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-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
. .