ML19320D771

Response to Mapleton Intervenors 800630 Petition.Argument Re Consolidation Untimely.Request to Postpone NRC Response to CPC Motion moot.Soil-related Issues Are within Scope of OL Proceeding & NRC 791206 Order.Certificate of Svc Encl

ML19320D771
Person / Time
Site:	Midland
Issue date:	07/15/1980
From:	Mark Miller CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OM, NUDOCS 8007220194
Download: ML19320D771 (8)

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'a 9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION p D 413NRC Before the Atomic Safety and Licensing Board JUL 181933 , $

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In the Matter of CONSUMERS POWER COMPANY ) Docket Nos. 50-329-OM I 50-330-OM (Midland Plant, Units 1 and 2) )

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Answer of Consumers Power Company to Mapleton Intervenors Petition to the Erard dated June 30, 1983 Consumers Power Company (" Consumers Power") ,

pursuant to the Rules of Practice of the Nuclear Regulatory Commission, hereby answers Mapleton Intervenors ("Mapleton")

Petition to the Board (" Petition") dated June 30, 1980.

The Petition is divided into three parts:

(1) A statement of Mapleton's reasons why the Board "should not consider Consumers Power Company's motion for any consolidation."

(2) A motion to postpone the Staff response to Consumers Power's motion for partial consolidation "until all parties have had proper opportunity under the law."

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(3) A motion to "stop construction of the Midland plant as per 10 CFR 55."

Consumers responds separately to each part of the petition.

I. Mapleton's reasons why the Board should not consider the motion for consolidation.

Mapleton formulates two arguments in support of its " petition" with respect to Consumers Power's motion to consolidate certain issues in the operating license proceeding and those flowing from the Commission's December 6, 1979 order with respect to soils related issues.

(A) " Proper notice has not previously been

.I given or afforded to Mapleton Intervenors and probably other parties."

Contrary to Mapleton's allegation, Mapleton was sent a copy of the motion for partial consolidation, as were the other individuals and organizations listed in the service list to the motion.* Mapleton failed to answer Consumers Power's motion in a timely fashion. Insofar as the instant " petition" can be regarded as a response to the motion for partial consolidation, it is more than three weeks late.

Moreover,-the Board, pursuant to its Memorandum and Order dated June 27, 1980, will be giving additional opportunity to all parties through a future Order providing for responses to the motion for consolidation.

• The service list includes Wendell H. Marshall, Mary Sinclair, Grant Merritt, Esq., Myron M. Cherry, Esq., Attorneys representing the State of Michigan, members of the Atomic Safety and Licensing Board, and Nuclear Regulatory Commission personnel.-

(B) "Mapleton Intervenors were not informed of Consumers Power Company's request for a hearing with request [ sic] to a December 6, 1979 order modifying the construction permits which would have been objected to by Mapleton Intervenors had they been notified."

Consumers Power was given the absolute right to request a hearing with respect to the Order. (See page 6, paragraph V of the Order). Mapleton had no standing to object to Consumers Power's right to request a hearing and hence its objection is totally without merit.

II. Mapleton's motion to " postpone Staff response to Consumers' motion until all parties have had proper opportunity under the law."

Notwithstanding the lack of clarity of this portion of the " petition", its lateness, and Mapleton's lack of standing to assert a motion on the Staff's behalf, Consumers Power believes this motion is moot in that the Board in its Memorandum and Order dated June 27, 1980, ordered that responses to Consumers Power's motion would be postponed until a future Board Order.

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. III Mapleton's motion to "stop construction of the Midland plant as per 10 CFR 55."

This portion of Mapleton's " petition" is simply incomprehensible. Part 55 of 10 CFR refers to licenses for nuclear power plant operators and is clearly inopposite.

Even if Mapleton intends to refer to 10 CFR 550.55, that section does not authorize the summary cessation of con-struction, as apparently requested by Mapleton.

It has now been over 6 months since Consumers Power asked for a hearing in accordance with the Commission's Order of December 6, 1979. Notwithstanding Consumers Power's prompt response to the December 6, 1979 order, the time within which petitions to intervene in the OM proceeding expired on June 27, 1980. The soils-related issues which are within the scope of the December 6, 1979 order are also issues in the operating license proceeding. Early resolution of Consumers Power's motion for partial consolidation will serve to expedite the hearing process and, perhaps, cause the other parties to the proceedings to direct themselves to the issues, instead of filing frivolous " petitions" such as the instant pleading. Consumers Power urges the Board to set an early date for responses to its motion for partial consolidation and a pre-hearing conference so that discovery may begin and

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. a timetable established for the hearing.*

Respectfully submitted, Michael I. Miller Counsel for Consumers Power Company ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 558-7500 l

• Since both Consumers Power and the Staff apparently agree that cach of the intervenors in the OM proceeding possess the requisite standing for intervention, Consumers Power has sent each of them a copy of its motion for partial consolidation and the Board's order of June 27, 1980.

Accordingly, all parties to the OL and OM procaedings now

-have copies of the pertinent papers relating to the motion for partial consolidation and should be prepared to respond promptly to that motion.

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9 UNITED STATES OF AMERICA ,

% r NUCLEAR REGULATORY COMMISSION == 40 JL-Before the Atomic Safety and Licensing Board wh

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In the Matter of )

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CONSUMERS POWER COMPANY ) Docket Nos. 50-329-OM I 50-330-OM (Midland Plant, Units 1 and 2) )

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CERTIFICATE OF SERVICE I, Michael I. Miller, hereby certify that a copy of Consumers Power Company's Answer to Mapleton Intervenors Petition to the Board was served upon all persons shown in the attached service list by deposit in the United States mail, first class, this 15th day of July, 1980.

Michael I. Miller

SERVICE LIST Frank J. Kelley, Esq. Grant Merritt, Esq.

Attorney General of the Thompson, Nielsen, Klaverkamp & Jhmes State of Mic.nigan 4444 IDS Center Stewart H. Freeman, Esq. 80 South Eighth Street Assistant Attorney General Minneapolis, Minnesota 55402 Gregory T. Taylor, Esq.

Assistant Attorney General Atomic Safety & Licensing Appeal Panel Environmental Protection Div. U.S. Nuclear Regulatory Commission 720 Law Building Washington, D.C. 20555 Lansing, Michigan 48913 Mr. C. R. Stephens Myron M. Cherry, Esq. Chief, Docketing & Service Section One IBM Plaza Office of the Secretary Suite 4501 U.S. Nuclear Regulatory Commission Chicago, Illinois 60611 Washington, D.C. 20555 Mr. Wendell H. Marshall Ms. Mary Sinclair RFD 10 5711 Summerset Street Midland, Michigan 48640 Midland, Michigan 48640 Ivan W. Smith, Esq. William D. Paton, Esq.

Atomic Safety & Licensing Bd. Counsel for the NRC Staff U.S. Nuclear Regulatory Com. U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Gustave A. Linnenberger Atomic Safety & Licensing Board Panel Atomic Safety & Licensing Bd. U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Com. Washington, D.C. 20555 Washington, D.C. 20555 Barbara Stamiris Dr. Frederick P. Cowan 5795 North River Road 6152 N. Verde Trail Route 3 Apt. B-125 Freeland, Michigan 48623 Boca Raton, Florida 33433 William A. Thibodeau Carroll E. Mahaney 3245 Weigel Road Babcock & Wilcox Route 5 P. O. Box 1260 Saginaw, Michigan 48603 Lynchburg, Virginia 24505 Sister Carol Gilbert Patrick A. Race St. Joseph Covent 1004 N. Sheridan 903 N. Seventh Street Bay City, Michigan 48706 Saginaw, Michigan 48601 Terry R. Miller 3329 Glendora Drive Bay City, Michigan 48706