ML19331B282
| ML19331B282 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/06/1977 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007280882 | |
| Download: ML19331B282 (6) | |
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l fSE 9/G/77 UtlITED STATES OF A;iERICA flVCLEAR REGULATORY C0!11ISS10il BEFORE THE ATOMIC SAFETV A!!D LICEf!SIliG BOARD In the Matter of
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.C0ilSUMERS POWER COMPAtlY
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Docket flos.,,5.0-329
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50-330 (Midland Plant, Units 1 and 2)
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flRC STAFF AflSWER TO INTERVEf!0RS' LETTER MOTION OF AUGUST 22, 1977 Introduction By a letter dated August 22, 1977 to the Chairman of the Atomic Safety and Licensing Board (Board) in this proceeding, Counsel for Intervenors other than Dow (Intervenors) complain that Intervenors are not receiving copies of certain communications regarding !!idland.
Intervenors argue tha't the Commission's Rules of Practice are being violated and seek a Board order requiring that the flRC Staff and Consumers Power Company (Licensee) comply with the Rules. The Staff construes Intervenors' letter asamotionandrespondsaccordingly.E M A motion to the Board should comply with 10 CFR 52.708.
Petitioner's letter clearly does not. Under 10 CFR 52.709, the Board could refuse to accept the instant letter and return it to Intervenors for
~ compliance with the Rules. More than a mere technicality is involved here. The other parties to the proceeding as well as the members of the Board should be apprised of when a motion is before them.
It should not be required of others to decipher from informal correspondence when a motion has been made.
R0072 80 68-'
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Discussion Intervenors admit that they have been receiving "from time to time" copies of communications from the Staff to the Licensee regarding the tiidland facility. The Staff routinely serves Counsel for Intervenors i
with' copies of all correspondence initiated by th,e Staff and directed to the Licensee.
Counsel for the Staff has confirmed that communications from the Office of Nuclear Reactor Regulation and from the Office of Inspection and Enfo ement have been regularly served upon Intervenors' Counsel. The Staff points out that there is no requirement that such service be made but that the Staff undertakes such distribution to keep Intervenors fully apprised of the Staff's continuing review of the Licensee's activities.
Thus, Intervenors' comment in the second paragraph of their letter that they are not "kept privy to the Staff's underlying review" is puzzling.
We turn next to Intervenors' suggestion of a requirement under the Commission's Rules that "all parties must serve other parties with copies of documents filed".
Intervenors do not identify the source of this alleged requirement. There is no such requirement. What the Eules of Practice do require with regard to documents is that all pleadings and correspondence relating to practice before the Commission, the Atomic Safety and Licensing Appeal Board, or the Atomic Safety and Licensing Board in a proceeding l -
e conducted under Part 2 be served upon all parties to that proceeding.
See 10 CFR 52.701.
There is no reauirement that correspondence and communications between the Staff and the Licensee in particular, or between the Staff and any other party be served upon the other parties to aproceeding.2_/ In the absence of such a requirement, there is no basis for Intervenors' requested relief.3/
tioreover, we note that the Construction Permit proceeding, to which Intervenors were a party, has long since terminated.
The present remanded proceedings deal only with certain narrow and limited issues. Any right on the part of Intervenors to have access to, for purposes of inspection and copying, the documents they presently seek to have delivered to them,U would a'ccrue only voon the opening of discovery by the Board regarding the issues in controversy and a detemination by the Board, in the event of U This principle is limited only by the ex parte rules of 10 CFR 52.780.
As the correspondence Intervenors seekTn this instance were not directed to the Board, the g parte rules do not apply.
3_f ocal Public Document Rocms (LPOR's) have been established in the vicinity L
of nuclear power plants to provide access fon the oublic to all materials and correspondence between the Licensee and the Staff. The LPDR for the Midland facility is located at Grace Dow Memorial Library,1710 West St. Andrews' Road,-Midland,!!ichigan 48640. Were Intervenors truly interested in being "kept privy to the Staff's underlying review", they would have availed of themselves of the LPDR and the material it contains.
O The provisions for doi.ument discovery under the Rules of Practice provide only for the production of documents for inspection and copying by the adverse party.
See 10 CFR 52.741 and 62.744. The Rules of Practice in tio case provide that copies of the documents in question be made available for use by the adverse party.
, objection, that the documents were relevant to the litigation of those issues.
In no other instance do Intervenors have a "right" to the documents they request.E/
Conclusion Intervenors' motion is totally at odds with the controlling law, points to no authority for support, and generally fails to comply with the Rules of Practice which require that a motion " state with particularity the grounds" upon which it is based.
See 10 CFR 52.730.
It should be denied.
Respectfully submitted,
! tY(av RichardK. Hoe lfning A
Counsel for NRC Staf Dated at Bethesda, Maryland this 6th day of September,1977 5/ Although the Freedom of Information Act, 5 U.S.C. 5552, applies to' the documents and correspondence in question, these documents have been made available by the Commission for public insnection and copying at the MRC 1
Public Document Room. See 10 CFR 59.7. As such, the documents in cuestion are already available for Intervenors' use in accordance with the Freedom of Information Act.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0ft11SSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CONSUMERS POWER COMPANY Docket Nos. 50-329
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50-330
(, Midland Plant, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF AflSWER TO INTERVENORS' LETTER MOTION OF AUGUST 22, 1977", dated September 6,1977 in the above-captioned proceeding, have been served on the following by deposit in the United States mail, first class or air mail, this 6th day of September,1977:
Frederic J. Coufal, Esq., Chairman Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Dr. J. Venn Leeds, Jr.
Ms. Mary Sinclair
' Atomic Safety and Licensing Board 5711 Summerset Street 10807 Atwell Midland, Michigan 48640 Houston, Texas 77096 Harold F. Reis, Esq.
. Dr. Emmeth A. Luebke Robert Lowenstein, Esq.
Atomic Safety and Licensing Board Lowenstein, Newman, Reis &
U. S. Nuclear Regulatory Commission Axelrad Washington, D. C.
20555 1025 Connecticut Avenue Washington, D. C.
20036 Myron M. Cherry, Esq.
1 IBM Plaza L. F. Nute Esq.
Chicago, Illinois 60611 Dow Chemical, U.S.A.
Michigan Division ~
Judd L. Bacon, Esq.
Midlano, Michigan 48640 Consumers Power Company 212 West Michigan Avenue Mr. Steve Gadler Jackson, Michigan 49201 2120 Carter Avenue St. Paul, Minnesota 55108
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,e s R. Rex Renfrow. III, Esq.
Atomic Safety and Licensing David J. Rosso, Esq.
Appeal Panel Isham, Lincoln & Beale U. S. Nuclear Regulatory Commission One First Nationa Plaza Washington, D. C.
20555 Suite 4200 Chicago, Illinois 60603 Docketing and Service Section Office of the Secretary Atomic Safety and Licensing U. S. fluclear Regulatory Commission Board Panel-Washington, D. C.
20555 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Norton Hatlie, Esq.
Attorney-at-Law P. O. Box 103 Navarre, Minnesota 55392 hl
.i Richard K. Hoefling /
Counsel for flRC Stafi
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