ML19254D040
| ML19254D040 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 09/11/1979 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19254D039 | List: |
| References | |
| NUDOCS 7910220058 | |
| Download: ML19254D040 (18) | |
Text
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9/11/79 Vi1ITED STATES OF A!! ERICA fiUCLEAR REGULATORY C0l'!11SSIO:1 (Q[4 BEFORE THE ATO:iIC SAFETY Arid LICEfiSIf1G P,0ARD Q
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C0ilSUMERS POWER C0:1PAfiY
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Docket fio. 50-155 WA g#f'
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(Big Rock Point fluclear Power
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fiRC STAFF'S RESP 0fiSE TO PETITI0fiS FOR LEAVE TO I?iTERVEfiE AfiD f40 TION TO C0:lSOLIDATE 24 PETITIOiERS The Staff of the Nuclear Regulatory Commission (Staff) hereby responds to the petitions for leave to intervene of John O'fieill, II; 24 residents in the area of the Big Rock facility; and of John A. Leithauser on his own behalf and on the behalf of the fiorthwest Coalition.
It should be noted that this response is limited to the issue of whether the Petitioners have satisfied the requirements of 10 C.F.R 92.714 pertaining to interest in the above-captioned
.oroc eeding. The Staff is not, at this time, ta. king any positior. as to the admissibility of the concerns oi he various Petitioners as contentions in this proceeding.
The Staff will take such positions in response to the supplements to these petitions setting forth specific contentions and the basis for those contentions as required by 10 C.F.R 52.714(b)
It is argued below that:
- 1) The petition of f1r. John O'fleill, II, is adequate to meet the require-ments for intervention as of right set forth in 52.714;
- 2) The petition of the 24 residents in several communit' i surrounding the Big Rock facility expresses an interest of the individual signers adequate for intervention as of right under s2.714; 1190 140 7910 2 e o oS E<
- 3) The petition of the fiorthwest Coalition should, at this time, be denied without prejudice pending amendment of the petition to show that at least one member of the fiorthwest Coalition, having an interest which might be affected by the proposed action, authorizes the fiorthwest Coalition to represent him or her;
- 4) The portion of l'orthwest Coalition's petition, seeking intervention as a representative of residents in the area concerned about the proposed action, but who are not members of the florthwest Coalition, should be denied; and
- 5) The petition of fir. John A. Leithauser to intervene on his own behalf mininally satisfies the requirements for intervention as of right in 10 C.F. fl. 52.714.
The Staff also hereby moves the Board for consolidation of the 24 Petitioners discussed in Section II infra, and for a requirement that these Petitioners appoint a spokesperson to act as their representative in the above-capticled proceeding pursuant to ss2.714(e) and 2.715a.
ii90 141
I.
Petition for Leave To Intervene Of John O','leill, II Petitioner Has Deconstrated Sufficient Interest In This Proceeding To Meet The Requircnents Of 92.714 Of The Coanission's Regulations.
The Cor.Jnission's regulations require that a petitioner for leave to intervene submit a written petition setting forth his interest in the proceeding and how that interest may be affected by the results of the proceeding.
This petition must also include the reasons why the petitioner feels he should be permitted to intervene, and the aspects of the proceeding in which intervention is sought.
This section also requires the petition to make particular reference to the factors in 10 C.F.R. s2.714(d) which are as follows:
- 1) The nature cf the Petitioner's interest under the Atomic Energy Act,
- 2) The nature of his property, financial or other interest in the proceeding, and
- 3) The possible effect of an order in this proceeding on Petitioner's interest.
In determining whether the foregoing requirements have been met by a particular petitioner, thus allowing him to intervene as of right in a proceeding, the Commission has ruled that judicial concepts of standing should be applied in f;RC licensing proceedings.
P_ortland General Electric Co. (Pebble Springs liuclear Plant, Units 1 & 2), CLI-76-27, 411RC 610 (1976).
These concepts require a showing that the action being challenged could cause injury in fact to the person seeking standing, and that such injury is arcuably within the " zone of 1190 142
. interest," protected by the statute governinj the proceeding.
Id.
The Appeal Board has ruled that residence standing alone is an interest sufficient to meet the 52.714 interest requirement.
Virginia Electric _fnd Power Coypany_
(fiorth Anna liuclear Power Station, Units 1 and 2), AL AB-522, 9 tiRC 54, 56 (1979).
Though no firm outer boundary for this geographic " zone of interest" has been determined, distances of up to 50 miles have been accepted by the Appeal Board as conferring standing upon particular petitioners.
See, e. h, Tennessee Valley Authority, (Watts Bar fluclear Plant, Units 1 and 2), ALAB-413, 5 iiRC 1418, 1421, n. 4 (1977).
Cf. Virginia Electric & Power Co. (liorth Anna Power Station, Units 1 and 2), ALAB-146, 6 AEC 631, 633-34 (1973); florthern States Power Co.
(Prairie Island fiuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 190, 193, recon _si_d_.__de_n., ALA3-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973).
The Appeal Coard has also sted that part-tit..e residence, such as that of a student, is not necessarily fatal to a particular petition.
Watts Bar, supra, at 1421.
However, when conridering part-time residence as a basis for standing, it may well be relevant how long a petitioner is likely to remain in the area.
See, htts Bar, supra, at 1421.
Mr. O'ficill filed a timely petition on August 22, 1979, in which he alleged that during this past summer he lived and worked in Burdickville, Michigan, that he intend 3 tu continue to do so this fall, and that he plans to maintain at least this part-time residence in the area in the future.
Burdickville, Michigan, according to Mr. O'fieill, is some 50 miles from the Big Rock facility.
Mr. O'fleill also alleged his concern that he as a resident would be affected by certain health, environmental and economic issues surrounding this proposed spent fuel pool expansion.
One of his cor.ccens centered around tim possibility of increased radiation emanating from fuel rods stored in close proximity to one another.
The fact that f1r. O'ficill's family owns a restaurant which might 1190 143
possibily be economically affected by happenings at the Big Roch Point facility cannot, at this time, be considered in support of his claim of interest, since there is not enough infornation in this petition to show either 1) that the restaurant mentioned is located within the geographic " zone of interest", and
- 2) in exactly what way Mr. 0'lieill himself would be af f 3cted if his family's business were affected by happenings at the Big Rock Point facility.
Due to Mr. O'!!eill's present part-time residence within approximately 50 miles of the Big Rock Point facility, his stated intention to continue at least that part-time residence in the area, and his concern with the possible increase of radiological offects to be brought about by this proposed spent fuel pool expansion, the Staff believes that 11r. O'l;eill has met the interest requirement set forth in 10 C.F.R. 52.714 as interpreted by the Commission and Appeal Board, and has adequately identified the aspects of the procecding in which he wishes to participate.
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!N4 II.
Petition for Leave To Intervene Of 24 Residents in The Area Of TLo !tig Pock Point facility _
Petitioners Have Demonstrated Sufficient Interest In This Proceeding To lieet The Requircaents Of 62.714 Of The Cormission's Regulations, This petition, filed on August 22, 1979, was signed by 24 people residing in several communities near the Big Rock Point facility.
These Petitioners seek leave to intervene on their own behalf and on behalf of their children.
The petition alleges that the signers are citizens living within a 50 mile radius of the Big Rock facility. This allegation is supported by the addresses listed af ter the name of each signer of the petition.
The petition also i.lleges that the proposed spent fuel pool expansion represents a direct threat to their health and property.
Their particular concerns surround the integrity of the south wall of the spent fuel pool, the release of radioactive solids into the open storage pool, and the possible increased release of radioactive gases from the storage pool to the off-gas system and so into the atmosphere.
The Staff believes that these concerns, and.the fact that the Petitioners reside within a 50 mile radius of the plant, satisfy both the judicial concepts of standing and the requirements of 10 C.F.R. 92.714 set forth in Section I of this response.
It appears to the Staff, based upon their petition, that these 24 Petitioners would be appropriate for censolidation pursuant to 10 C.F.R. s2.715a.
All of the Petitioners have alleged their interest which may be affected is residence in the area surrounding the Big Rock Point facility.
This indicates that they have substantially the snre intero " Mich mv Im affortnd !,v thir pror r m'ing.
All the signers of the petition seem to have the same concern relating to this li>0 i45 proposed spent fuel pool expansion, i.e.,
doubts about the integrity of the south wall of the spent fuel pool.
They, therefore, all seem to be raising the same questions regarding the proposed action.
Due to the form in v;hich this petition was filed with the Con nission, it appears that these Petitioners in fact consider themselves already consolidated. Any such consolidation would greatly decrease the possibility for delay and procedural confusion resulting from the necessity of dealing with 24 separate petitioners.
If at the time contentions are admitted in this proceeding it is found that consolidation prejudices the rights of any of these Petitioners, appropriate remedial action could be taken at that time to alleviate the prejudice.
Accordingly, the Staff moves this Board to exercise its authority under 62.714(e) and 52.715a to consolidate these 24 Petitioners and to require them to appoint a spokesperson to represent them in this proceeding.
Due to their residence within a 50 mile radius of the Big Rock facility and their concern that the proposed spent fuel pool expansion poses a direct threat to their health and property, the Staff believes that Petitioners individually have satisfied the requirements for interest set forth in 10 C.F.R.
s2.714 and have adequately identified the aspects of the proceeding in which they wish to participate.
1190 146 III.
Petition Of John A. Leitbauser On Behalf Of The fiorthwest Coalition A.
The fiorthwest Coalition Must Establish That It Is Authorized By At least One Of Its Menbers Having An Interest !!hich May De Affected By The Proceeding To Represent That Member.
There is no doubt that an organization, even though it suffers no injury to itself by the proposed action, may intervene in a proceedir.g as the representa-tive of its members.
Houston Lighting and Power Co. (South Texas Project, Units 1 & 2), ALAB-549, s_ lip op at 5, (May 18, 1979), Public Service Co. of Indiana (Marble Hill fluclear Generating Station, Units 1 & 2), ALAB-322, 3 fiRC 328 (1976).
See, Houston Lighting and Power Co. (Allens Creek tiuclear Generating Station, Unit 1), ALAB-53E, slip op. at 24, ( April 4,1979).
However, when intervening in this representative capacity, an organization must establish that at least one of the persons it purports to represent does in fact have an interest which might be affected by the licensing action being sought.
ALAB-535, supra.
A member with such an interest must also authorize the petitioning organization to represent his or her interest in the proceeding in which the organization seeks leave to intervene, thus clothing the organization with that reember's personal standing.
ALAB-535, supra, at 33-39.
See, ALAB-522, supra, at 55-56.
In the timely petition filed by Mr. Leitio user on behalf of the florthwe-'.
Coalition,1/ it is alleged that three organizations have combined to intervene 1/ Although Mr. Leithauser, in his letter of August 20, 1979, states that he is actino '., attornev for the florthwest Coalition, ho has inforneri t hr> Sta ff that he is not, in ract, a i a..jer ma i: rvre c n t i r.g
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1190 147 in this proceeding.
The petition alleges that c'c:nbers of th3se organizations use recreational resources in the area which could be affected by releases at a result of spent fuel pool accidents at the Big f nck facility. The petitior.
fails, however, to identify any particular member who uses these recreational resources.
The petition also fails to show that any particular member of the organizations constituting the horthwest Coalition has authorized that Coalition to represent hin/her.
In order for the Northwest Coalition to be granted leave to intervene in this proceeding, affidavits of at least one member of the Coalition must be filed stating the inte. est of that member which might be affected by the proposed action, and that this particular member authorizes the Northwest Coalition to represent him or her. 2/ Unless the Northwest Coalition petition is amended to reflect this authorization, the petition must be denied.
In its petition, the Northwest Coalition alleges that the organization would be directly affected by problems with fuel compaction, and that members could be contaminated from a spent fuel accident.
Though these are quite general concerns, they adequately point out the aspects of the proceeding in which Petitioner wishes to participate.
Petitioner has stated in his letter of August 20, 1979 that specific contentions shall be submitted in a separate document.
2/ While Mr. Leithauser states that he is the " authorized agent" of the Coalition, i.e u 2cu ;* '
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- f L a stateiaent to that etrect is surticient to perfect trie Nortn. vest (.uol i tion 's showing of standing to intervene in this proceeding.
See our discussion of petition of Mr. Leithauser on his own behalf,Section IV infra.
i I90 143 D.
The liorthr.est Coalition Is I:ot Entitled To Represcnt Persons Not Members Of The Organization.
Since the Atomic Energy Act has no provision from which a right for persons to act as private attorneys general could be implied, one person cannot put forth a claim for relief based on the rights of third parties.
Wa tts Bar, supra, 1421 n. 4.
An organization acting as an intervenor may not claim to represent the public interest in general, in addition to representing the specialized interest of its members.
Long Island Lighting Co. (Shorehamiluclear Power Station, Unit 1), LDP-77-ll, 5 f1RC 481 (1977).
The Licensing Board in Shorehara applied this proposition in ruling that an association of residents living near a site cannot be deemed to represent the interest of other residents who are not members of the organization. Id.
This ruling is supported by the Conmission's regulations.
These regulations say that a persori may participate on his own behalf or through an attorney in a given proceeding.
10 C.F.P,.
52.713(a). Person is defined as "any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, government agency other than the Commission or the Administration...".
The Northwest Coalition, as either a group or an association, would come under the definition contained in 10 C.F.R. s2.4(o) and, therefore, could intervene on its own behalf.
This means that the Northwest Coalition cai, intervene on behalf of members who make up the organization as an entity, but not on behalf of people who, although they may have an interest in a particular action, are not members of the organization. Therefore, the portion of this petition which alleges that the Northwest Coalition represents residents in the area concerned about the proposed spent fuel pool expansion but who are not members of the Coalitien musc i a cenied IV.
Petition For Leave To Intervene Of
!!r. John Leith1 user On His 0..n Behalf Petitioner Meets The Requirements For Interest of 10 C.F.R. 92.714 The judicial concepts of standing which are to be applied in determining whether a petitioner meets the requirements set forth in 10 C.F.R. 52.714 are set forth in Section I of this Response.
The Commission has recognized several types of interests which would be sufficient to meet the judicial concepts of standing and thus the interest requirements of 10 C.F.R. 62.714.
The first is residence within an area of up to 50 milcs from the facility.
Watts Bar, supra.
Another would be if a person's norrral base of everyday activities is within 25 miles of the proposed facility.
Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-lS3, 7 AEC 222, 226 (1974).
If a person could show that he or she uses recreational resources which night be affected by the proposed action, that person would have. an interest suffi-cient to satisfy 10 C.F.R. 52.714.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-73-10, 6 AEC 173 (1973).
In his letter dated August 20, 1979, Petitioner did not specifically allege any of these particular interests.
Instead, he alleges close community ties with the Town of Petoskey including membership in a local food cooperative, membership in a local community center, and frequent business dealings with the City of Petoskey.
He also alleges frequent business dealings with the Cities of Harbor Springs and Charlevoix, both in close proximity to the Big Rock Point facility.
He also alleges that he is engaged in an enterprise to improve some property on Sturgeon Bay.
However, it is unclear whether this property would fall within the geographic " zone of interest" of the Big Rock ik00 E
facility since no indication is given of its exact location in relation to that facility.
Therefore, this alleged enterprise should not he considered as a factor in determining whether Mr. Leithauser's interest is sufficient to grai t him standing to intervene in this procceding.
The nature of the in-terest which Mr. Leithauser alleges would be affected by the proposed action is his health and safety and possible business losses.
Though greater specificity might be desirable to determine the frequency of Petitioner's contacts with cities located near the Big Rock facility, the Staff believes that the totality of the interest alleged by Mr. Leithauser gives him enough of a stake in the outcome of this proceedir.g to satisfy the interest requirement of 52.714.
Petitioner's letter rakes no mention of the aspects of the proceeding in which he wishes to participate as an individual.
- However, since he is the author of the petition of North'. test Coalition for Leave to Intervene, the Staff believes it can be inferred that the general concerns expressed in that petition apply equally to Mr. Leithauser.
We previously stated that those concerns could form an adequate description of the aspects of the proceeding in which the petitioner organization wishes to partic:cate.
Therefore, they may also serve as an adequate description of the aspects of the proceeding in which Mr. Leithauser wishes to participate as an individual.
l 9b b
CONCLUSICN For the reasons set forth in Sections I through IV above, the Staff concludes that:
- 1) The petition of I'r. John O'Neill, II, is adequate to nieet the requirements for intervention as of right set forth in 62.714;
- 2) The petition of the 24 residents in several comunities surrounding the Big Rock facility expresses an interest of the individual signers
/
adequate for intervention as of right under fi2.714. The Staff moves, however, that these 24 Petitioners be consolidated, and that a spokes-person be appointed to represent their interest in this proceeding;
- 3) The petition of the Northwest Coalition should, at this time, be denied without prejudice pending amendment of the petition to show that at least one member of the Northwest Coalition, having an interest which night be affected by the proposed action, authorizes the Northwest Coalition to represent him or her;
- 4) The portion of florthwest Coalition's petition, seeking inter-vention as a representative of residents in the area concerned about th' proposed action, but who are not members of the llorthwest Coalition, should be denied;
- 5) The petition of f1r. John Leithauser to intervene on his own behalf minimally satisfies the requirements for intervention as of right in 10 C.F.R. s2.714.
As we stated in the Introduction to this Response, the Staff is not, at this time, taking a position on a.iy oi Lae concerns c,.,1c.oev by Li.<
.driuos Petitioners.
Such positions will be taken in answer to supplements to these li90 152 petitions setting forth specific contentions, and the bases for those contentionc.
These supplements may be filed up to 15 days before any special prehearing conference.
If no such special prehearing conference is held, they may be filed up to 15 days before the first Prehearing Conference.
10 C.F.R. h2.714(b).
Respectfully submitted,
}()'})([ V D 0 Yb-Janice E. fiaore Counsel for I;RC Staff Dated at Bethesda, fiaryland this llth day of September,1979.
1190 153
9/11/79 UillTED STATES OF A!1 ERICA flVCLEAR REGULATORY COM:1ISSIO:1 BEFORE THE AT0*1IC SAFETY A';D LICH5It G I:0ARD in the Matter of
)
)
C0flSUMERS POWER COMPAtlY
)
Docket flo. 50-155
)
(Big Rick Point fluclear Power
)
Station)
)
fl0TICE OF APPEARAtlCE flotice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter.
In accordance with 10 CFR 52.713(a), the following information is provided:
flame:
Janice E. floore Address:
U.S. fluclear Regulatory Conmlission Office of the Executive Legal Director Washington, D. C.
20555 Teleptione ilumber:
(301) 492-8671 Admissions:
District of Columbia Court of Appeals flame of Party:
NRC Staff Respectfully submitted, d W S(
DYbN Janice E. Moore Counsel for flRC Staff Dated at Bethesda, Maryland this llth day of S(ptember,1979.
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9/11/79 U:1ITED STATES OF A" ERICA I;UCLEAR RECULATORY CG"il5S10?!
BEFORE THE ATO. TIC SAFETY AND LICET1SII;G BOARD in the flatter of
)
)
CO'lSUMERS PO',.'LR CO' IPA:1Y
)
Docket !!o. 50-155
)
(Big Rock Point f;uclear Pc or
)
Station)
)
fl0TICE OF APPEARAfiCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned proceeding.
In accordance with 10 C.F.R.
s2.713, the following information is provided:
llame Marcia E. Mulkey Address Office of the Executive Legal Director U.S. fluclear Regulatory Commission Washington, D.C.
20555 Telephone ilumber (301) 492-7445 Admissions Court of Appeals of the District of Columbia Name of Party f4RC Staff Respectfully submitted, v
hckbe lotco Marcia E. Mulkey Counsel for liRC Staff Dated at Bethesda, ilaryland this lith day of September,1979.
1190 155
U:llIED SI ATES OF l":RICA LUCtt'.R R!.GUI.Al ORY CO: '.15S I 0:1 BEFORE THE niCNIC S/f' TV /G l.!Ci'EIT.G COARD In the I'.ltter of
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)
CC:;SU:XRS F0WER CD:',?A:1Y
)
Docket ::o. 50-155
)
(Big Rock Point !:uclear Poaer Station)
CERlIFICATE OF SLRVICE I hereby certify that copies of flRC STAFF'S RESP 0i!SE TO PETITIOT1S FOR LEAVE TO INTERVEilE AflD MOTIO:1 TO CO:iCOLIDATE 24 PETITIO iERS, !!0TICE OF APPEARAf:CE of Janice E. Moore, and NOTICE OF APPEARANCE of Marcia E. Mulkey, in the above-captioned proceeding have been served on the following by deposit in the United States uail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Can: mission's internal mail system, this lith day of September, 1979.
- !crbert Crossmn, Esq.
Joseph Callo, Esq.
Atonlic Safety and Licensing-Ishan, Lincoln & Deale Board Panel 1050 17th Street, N.W.,
- 701 U.S. fluclear Regulatory Consission Washington, D. C.
20036 Mashington, D. C.
20555 John A. Leithauser
- Dr. Oscar H. Paris Energy Resources Group Atomic Safety and Licensing General Delivery Doard Panel Levering, Michigan 49755 U.S. tiuclear Regulatory Co: mission Washington, D. C.
20555 John O'I:eill, 11 Route 2, Box 44
- Mr. Frederick J. Shon Maple City, Michigan 49664 Atomic Safety and Licensing Board Panel Christa-Maria U.S. Nuclear Regulatory Coaaission Route 2, Cox 10Sc Uashington, D. C.
20555 Charlevoix, Michigan 49720 Philip P. Steptoe, Esq.
Jim E. Mills Michael I. Miller, Esq.
Route 2, Cox 103 Isham, Lincoln & Ceale Charlevoix, Michigan 49720 One first National Plaza Suite 4200 Barbara J. Godwin Chir ga, Illi:ais rgn3 3ns cliofon C:
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- Atomic Safety and Licen ing l*s. Ihrcy Cro'.;n s
/Opr:al Coard Panel 401 f.l ice S treet U.S. !;uclear Regulatory Ce uaission Ch:rlevoix, Michigan 49/20
!!ashington, D. C.
2GSSS Mrs. !!.
'.!. Schaefer, Cha irnan
- Ata:..ic Safety and Licensin9 Radicactive Maste Manage: ment Board Pa.e1 Study Cc.:ittce U.S. INclr ar Regula tory Cc:. ::ission Lake :lichigan foundation
!!ashington, O. C.
20555 c/o 3741 Koehler Drive Cheboyoan,:lichigan 53031
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- Dacketing and Service Section U.S. l'uclear Regulatory Couaission 1lashir.gton, D. C.
20b55 Judd L. Bacon, Esq.
Consumers Power Company S[di ccm
]fkd'1 212 West liichigan Avenue
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Jackson, Michigan 49201 liarcia E. ftulk,ey
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Counsel for l1RC Staff r
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