ML19338C008
| ML19338C008 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/14/1978 |
| From: | Smith I Atomic Safety and Licensing Board Panel |
| To: | MICHIGAN, STATE OF, Atomic Safety and Licensing Board Panel, Saginaw Intervenor |
| References | |
| ISSUANCES-OL, NUDOCS 8007310571 | |
| Download: ML19338C008 (13) | |
Text
.
~l c
~
<N O
g e
L q$
~;-..
_ g(\\h UNITED STATES OF AMERICA
=
NUCLEAR RGULATORY COMMISSION
(
th4 PY In the Matter of
)
Docket Nos.50-32M J
CONSUMERS POWER COMPANY
)
50-330-OL (Midland Plant, Units 1 and 2)
E N
MEMORANDUM AND ORDER On May 4, 1978 the Nuclear Regulatory Commission published ils thc rederal Register a notice of an oppor-tunity for a hearing with respect to the application for an operating license by the applicant, Consumers Power Company.
The license would authorize the applicant to operate nuclear, power reactors, Units 1 ar.d 2, at its Midland Plant in Midland County, Michigan.
The notice provided that any person whose interest may be affected by the proceeding may file a petition for 1 cave to intervene and request a hearing pursuant to 10 CFR 92.714 on or before June 5, 1978.
By petition dated June 1, 1978, Mrs. Mary P. Sinclair requested a hearing and leave to intervene on behalf of the Saginaw Valley Nuclear Study Group (Saginaw).
Frank J. Kelley, the
' Attorney' General of the State of Michigan, filed a petition for leave-to intervene dated June 2,
'.978 This Board has been designated to rule upon intervention petitions and FI requests for hearings.
.{
~
800'7820h[
4 i
.~ -
3'*
-1
,m s :.
. a.
Saginaw Petitioners Saginaw's petition,' setting forth many areas of interest,. asserts that it is an association ~of residents of Michigan ~ involved in the study of nuclear power and in.
stimulating public. interest-in this subject.
Several of Saginaw's stated concerns are fcunded upon
'~
the allegation that the nuclear plant "will be situated
- essentially at the heart" of the small community of Midland where a majority of its members.are said to reside.
-Saginaw points to its intervention in the construction i
i permit proceeding. of this case and' alleges that its in-terests in. an operating license proceeding.are the saine or I
even stronger.
2 The applicant opposes th'e petition.
One reason is q
because, except for Mrs. Sinclair, the petition does not set forth the number, names or addresses of the persons who comprise -the petitioning association, nor does it a
show that Mrs. Sinclair is authorized to repre.nent the association.
Applicant recognizes that Sagivi.y partici-pated in'the - construction ' permit - proceeding for Midland, but does not. concede that ' Saginaw's interests and member-ship remain the same or 'thatsMrs. Sinclair is Saginaw's representative for this. proceeding.
4 h
+e a
,n g
+
=
--<p p__
-t l,,
L 3-i
.The NRC' Staff does not oppose intervention by Saginaw j'
. but points out that the standards for determining cognizable interests in our proceedings have changed, and that Saginaw's s,
i standing tc' intervene should be judged upon current standards.,
citing, for example, ' Sierra Club v. Morton, - 405 U.S. 727 l(1972)
\\
- Tennessee Valley Authority, (Watts Bar) ALAB-413, 5 NRC 1418 (1977) and, :with respect to representation, Allied General Nuclear Services, (Barnwell) ALAB-328, 3 NRC 420, 423 (1976).
' Staff's acquiescence to Saginaw's peticion depends, !towever,
[
upon the Board-taking note.of filings.by Mrs. Sinclair in other Midland proceedings which would indicate her authority to represent Saginaw, b
- The Board believes that the applicant is entitled-to have a clear and current showing that a significant number g
of Saginaw members do'in fact-reside near the plant, that 4
i
.their. interests are those set forth in the petition and that i.
Mrs-. Sinclair is the authorized representative for this proce'eding of the petitioning organization if such is the
~
case.
While it is possible that this information already
' reposes in other-filings'before the Commission, there is no reason whytthe Board should search. extra-record sources i
when the.information is conveniently.available from the
.petiti'oners, and.there.is.no apparent reason.why petitioners
- j
'l 1
i d
b +-E e
[.,
& d.h
_we e*-
o-ww.
6a.
sw.,
= w% %,.-,,, - em
,-=* -'******
' o:
j ', -
s 4-
' C would ob' ject. to._ such a showing.. Th'erefore the Board d nies
-the intervention petition insofar:as'it purports to be,the petition of the Saginaw association, subject to' the pro-i visions set lforth below.
In this and other proceedings ~ the address for j,
Mrs. Sinclair has been given as "5711 Summerset Drive, l Midland, Michigan 48604."
No one has disputed that she is.a resident of Midlesi, but this point has never been directly in-issue as fr. as we ' know.
We are proceeding I-I under the assumption tl.at Mrs. Sinclair does in fact reside in Midland,.and we assame further that those interests set forth in the petitior which relate' to the proximity of -the 1/
g Midland. Plant are. alr a Mrs. Sinclair's personal interests.-
We find that at F,ast 'f-No. 7, page 6 of the Petition re-4 l
lating to1 radioactive effluents, and the consumption of food 1
l 4
1/' While. conceding that Mrs. Sinclair may-be a member of -
~
Saginaw, (Answer, n.p.4): Applicant does not concede that
+
her. interests.are those of the association.
(Id. p. 5).
H The Board will - not preside over. quibbling on IEis point.
But, if in fact 1Mrs. Sinclair does not reside ~ in Midland, or-nearby, it is a matter for the Board to consider.
Standing.to. intervene, unlike the factual merits of con-
.j tentions,.may. appropriately be the subject of an evidentiaryfinquiry before intervention.is granted.
L Florida Power & Light-Company 1 (St. Lucie No..:2), D.
50-389A, i
Commission Memorandum and Order dated June 21, 1978,
' slip og. pp. 13,14.
The applicant may pursue this, point further if it.has bona fide doubts about Mrs. Sinclair's residency.
r 3
w
, p b.,,_.
A.,.-
G...
....s u2.....
F i*
Pt' p1
'T y
. 4
+t 4g
?
4 w
+yp
- w w-
- .e7-W
-g-+
em+e-D:-Ehwie--
D e
~..
t.,
a4 4
e r3
)
J t
e 1
' and water sufficiently' demonstrates these interests and 1
~
mee'ts;the " interest" requirements ~of 92.714.
J t
Under the rules of practice.which became effective _ on May.26, _'1978, ' petitioners under $2.714 are. not required to i
submit contentions until 15 days prior to the special pre-hearing -conference required under $2.751a.
43 Fed. Reg..
L 17798,- Aprili 26, 1978. : The notice of hearing, published before the~ effective date of the new rule, required that r
.1 --
{
contentions be. submitted with the petition.
Petitioner submitted a' lengthy statement of contentions.
Applicant i.
agrees that the more liberal new rules should apply.
~
[
Answer, p.5.
The Staff also views the petition under the
- new. rules and so shall the' Boar'd.
[
The-new rule retains the provisions of the old rule -
J l' ~
requiring that petitions initially specify the aspect or-j o
e
\\
aspects of the -subject _ matter of -the proceeding as to which 1
j
. petitioner wishes to intervene.
Applicant asserts that 4
petitioners have failed to meet this requirement except in q
i
[.
the area of,"need for power."
Answe~r, p.13.
[
' We. havel been unable to. identify-any Commission decisions
~ which! offer-guidancs as to the meaning of " aspect"_ as it appears in the interventivn_ rule.- Under.the old rule it-
~
was,not: an important. consideration ~.
We believe that an 1-
"e J
N O
"W
- M M k M 1
. ;eumsgamm.".g g
g pgg s'a ga g p g,,,__g g,
,q p MsW.$smreW sm.M 4Lq J*
.u
.- ~.
..c
]
+
~
" aspect" is probably broader th5n a " contention" but narrower than a general reference to our operating statutes.
This view does not seem to square with applicant's analysis.
Applicant, although recognizing. that contentions are not yet due, analyzes each of the petitioner's proffered contentions in a manner traditional under the old rules, concludes that
+
most of the contentions are inadequate for one reason or another, and urges that the petition be denied or severely limited:because the petition fails to-satisfy the " aspect" requirement of the intervention rule.
We do not accept this reasoning.
Because the petitioner has the right to amend its contentions later, it is premature for the Boa rd to rule upon their adequacy as issues in controversy.
We have, uowever, evaluated the contentions-to determine whether any of them specify proper aspects _for an operating license proceeding ard find that some have.
Contentions numbered ll through 14 for example identify appropriate subject matters and meet the " aspect" requirement.
There may be others, but there is no need to rule upon them.
Therefore, all requirements of 92.714 having been met, in our order below we_ admit the petitioner Sinclair as a party intervenor.
4 r w ~ ~: *
==.ew,
-e.,,
+
is
=
./
4 Section II of Saginaw's petition contains " reservations."
h
.The Board will not now rule upon~the reservations except to observe that it recognizes no right of the' petitioners utile.terally to bind the Board and the parties simply by reciting its intentions to take'certain actions, We do not f
regard the reservations as motions for declaratory relief-under the Administrative Procedure Act,. 5. U.S.C. 554(e) because the reservations would not terminate a controversy or remove uncertainty.
State of-Michigan Mr. Kelley, the Michigan Attorney General, petiticas for leave to intervene on behalf of the people of the State of Michigan and its governmental agencies (hereafter
" Michigan").
The petition does not state whether Michigan wishes to intervene as a party to the proceeding under 4
52.714 or whether it wishes to participate, not as a party, but'ar an interested State under 52.715(c).
The staff treats the filing as a request under -62.715(c) and recommends Ethat the petition be granted under that section.
Applicant treats.the petition as a pleading under 52.714.
Applicant states further that ' counsel for the Attorney' General in-formed applicant's counsel that Michigan intended to participate "as a full party" in the proceeding.
a 5
km..-_
_--gg,p
. m. =a v
- ee e ase.ow gg p
,,w p. m
,g,
p.e. mener __ _ w a
3 1
~~
, ~\\
The Board: deems the petition to be filed under 92.714.
Many of the requirsments of that section are discussed in
~
the petition.
But, as a 52.714 petition, it fails.
Michigan has not specified the aspect or aspects of the subject matter of this proceeding as to which it wishes to intervene as required by $2.714(a)(2).
The petition insofar as it is a petition.to intervene as a party is therefore denied subject to the provisions of our order below.-
However the petition does demonstrate that the petitionce qualifies as an interested State under 92.715(c) and the Board will admit Michigan as a participant under that section.
Section 2.715(c) as modified effective May 26, 1978 provides as follows:
1 52.715 Participation by a person not a party.
(c)
The presiding officer will afford representa-tives.of an interested State, county, municipality, and/or agencies thereof, a reasonable opportunity to participate and to introduce evidence, interrogate
~
witnesses, and advise the Commission without re-quiring'the representative to take a position with respect to the issue.
Such participants may also Efile proposed findings and exceptions pursuant:to
...o.-
~
.. _ _. ~. _ _ _. _ _
. ~
$$ 2.754 and 2.762 and-petitions.for review
~
by;the Commission pursuant to $2.786 The presiding officer may require such representa-tive to indicate with reasonable specificity, l
in advance of the hearing, the subject matters on which he desires to participate.
As can be seen, the prerogatives of a non-party
+
l interested State include many of those afforded a party s
under $2.714.
In that an interested State need not take a. position ani issues, its position nay be'somewhat better than that of a party.
On the other hand if a State is not f
admitted as a party, and does not offer its own contentions, it could face the danger of having no forum for its views i.
'in a discretionary proceeding such as an operating license proceeding if the intervention petition were to be with-O
' drawn or dismissed.
The foregoing is not a declaratory order or ruling by this Board.
There may be other advantages and disadvantages to either method of participating that do not occur to us.
We are only trying to be helpful so that the State of Michigan may select the mode of participation better. designed to satisfy. its requirements.
a-4 R
W~ - < -
.& a., -
_ _ _y wm --, -.: - s
..n-,s-
._._.---en-
- ~ ~
e-m -
l
., _.-. a --..__ :
~
y ORDER'
' "- ~
1.
A hearing on the app *.ication for an operating 4 S
. license for the Midland Plent is ordered.
A Notice of Hearing to this effect will be issued in the near future.
...w At that time the Board will-also schedule a prehearing conference pursuant to $2.751a.
2.
.Mrs.' Mary A. Sinclair is admitted as a party to this proceeding.
The Saginaw Valley Nuclear Stu' y Group d
is denied admission.
On or before 15 days prior to the prehearing conference required under $2.751a, Saginaw may demonstrate its eligibility tc be admitted as a party and may establish the authority of Mrs. Sinclair or other agent i
to represent itfin' this proceeding.
The contentions con-
-tetined in the Saginaw intervention. petition of. June 1, 1978 may be amended and supplemented on or before that date'.
l 3.
The Sttte of Michigan represented by its Attorney General-is denied admission as a. party under $2.714 but admitted as a participant.under 92.715(c).
Leave is granted j
.to Michigan to file an amended petition under 92.714 on or
-l before 15 days before the prehearing conference required under $2.751a.
Any such petition shall contain Michigan's
- c ontentions.
In any event, -whether Michigan elects to 1
9 -
se s* *
. www gg. _
. * + - 4=
m
-%-++h<
m, 4
E er
,e e-
- ~ -
ve w
v
~
- y c.
' participate las an interested State under 82.715(c) or as
~
a party under1ES.714, 'iti shall specify the subject matters
+
g:.
on which it desires-to participate on or before 15 days
~
v prior to the special prehearing conference.
4.
This. action which ' orders a hearing, and grants and don'ies petitions for leavecto intervene is a provisional 1
ordar.
This is because the Board cannot rule upon con-tentions, and the need for an evidentiary hearing, until
. af ter the special prehearing conference required under
$2.751a, and because the petitioners denied intervention status _ as parties may qualify upon. refiling.
Therefore 4
the Board will not enter the order referred to in 52.714a pertaining to appeals on petition rulings until later.
Therefore this action is not appealable under that section.
1 BY ORDER OF THE BOARD.
FOR THE ATOMIC SAFETY AND LICENSING BOARD designated to rule upon petitions.
,9dhky~j'l A
62 Van W. Smith, Chairman Dated'at Bethesda, Maryland this 14th ' day of August,.1978.
4
- l 3
i 1
e
^
N_
- M,'
- E
- u
_w 9
,3 9
f G
V M "-
"w T
.,7
~
i UNITED STATES OF A> ERICA
-- 'u c '-..
. NUCLEAR REGULATORY CO3DIISSION '
~..;-.
In the Matter of'
)'
~
)
3 '
CONSInfERS POWER C0!!PANY -
)
' (>!idland Plant, Units'l and 2)
)
)
1-
).
4-
-)
)
4 CERTIFICATE OF SERVICE i-I hereby-certify that I have this day served.the foregoing docu:nent(s)-
~
upon each person designated on the official service list comptied by the Office of.the Secretary of the Coenission in this proceeding in accordance with the requirements of Section~2.712 of 10 CFR Part 2 -
Rules of Practice, of the Nuclear Regulatory Com:sission's Rules and Regulations.
Dated at Washington, D C. this day of -
197 v
1 400 [I RowA'd Office /of 4he Secretary of the (om:sission 8
]
'We4--
SP____
ar
'N w
~_.
,, 2:
'y
'~
+
- r n
..__ w
. m -: y-a, g. t.
....o _, s._
,,...u,,,,.m
...n _
' UNITED ~ STATES' OF AMERICA * -
NUCLEAR REGULATORY COMMISSION
+
i n'the Matter of-U I
)'
y
.).
m..
' CONSUMERS POWER COMPANY.
')
Docket No. (s) 50-329 OL.
e
)-
- (Midland Plant, Units 1;and 2).
')
.50-330 OL-
~
')
)
..c SERVICE LIST 4
Ivan W.-Smith,.-Esq., Chairman _ _
Joseph Gallo, Esq.
Atomic Safety and Licensing Board Isham, Lincoln & Belae
~
U.S. Nuclear Regulatory Commission-1050
.17th Street, N.W., Suite'701 Washington, ' D. C.
20555' Washington, D.C.
20036 Mr. Lester Kornblith, Jr.
Myron M. Cherry, Esq.
Atomic Safety and Licensing Board' One IBM Plaza 4
U.S. Nuclear-Regulatory Commission Chicago, Illinois 60611~
Washington, D.C.
20555 Gregory T. Taylor. Esq.
Dr. Frederick P. Cowan Assistant Attorney General 6152'N. Verde Trail,_ Apt. B~-125 Environmental' Protection Division
. Boca Raton, Florida.~33433 720 Law Building-Landing, Michigan _ 48913 Counsel for'NRC Staff
~
U.S.' Nuclear Regulatory. Commission Judd L. Bacon, Esq.
Washington, D.C.
20555 Consumers' Power Conpany Legal Department Michael I. Miller,0Esq.
212 West Michigan Avenue i
Isham, Lincoln &.Beale Jackson, Michigan 49201 l
One:First National Bank Plaza Chicago, Illinois 60603-
)
i
- 1 l
1 6
4 2
y
[,*
k