ML19338C166
| ML19338C166 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 02/23/1979 |
| From: | Smith I Atomic Safety and Licensing Board Panel |
| To: | MAPLETON INTERVENORS |
| References | |
| ISSUANCES-OL, NUDOCS 8008050617 | |
| Download: ML19338C166 (33) | |
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In the Matter of 4
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Docket Nos. 5 - 29 L
CONSUMERS POWER COMPANY (Midland ' Plant, Units 1'and.2) f 2.-23-?j SPECIAL PREHEARING CONFERENCE ORDER
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Pursuant to notice-and the provisions of 10 CFR 52.751a, the Board c'.snducted a special prehearing con-ference in this proceeding on December-14, 1978 in Midland, Michigan.
All parties or their counsel appeared.
The Board considered each intervention petition, identifica-I-
tion of the key issues, a schedule for further actions in the proceeding and all other matters required to be con-i sidered. by.~ 02.7 51a.
As a result of the special prehearing 1
conference and subsequent consideration by the Board the following action is taken.
Mary Sinclair's Petition to Intervene Mary Sinclair was admitted as an intervening party by the board' designated to rule upon intervention petitions in 4-its order.'of August 14, 1978. -As permitted by the Rules of Practice, Mrs.. Sinclair amended her petition on October 31, 4
~1978 by' submitting additional'and supersi.ded contentions.
We rul'e-now-upon these contentions.
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llf. 43 F.R. 48089, October 118, 1978 and 43 F.R. 54148,
--November 20,: 1978.
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Contentions 1. and 2.
These related contentions assert that Applicant w'ill not comply with NRC rules, regula-tions, and the' Atomic Energy Act of 1954 absent constant monitoring from the NRCEStaff, but that there is no assurance that the Staff will~do so adequately.
No specific failure by the Staff is alleged; intervenor contends that the Staff is generally inadequate to per-form its statutory and regulatory functions.
The contention fails for each of three reasons.
l First the Commission, by statute, has the authority to perform its functions through staff offices.
42 U.S.C.
5841, 5843, 5844.
It.has implemented its authority in 10 CFR, Part 1, and.has staffed its offices pursuant to the statute and regulations.
There is a presumption of regularity attendant to the Commission's staffing, which the Intervenor has.not addressed.
In fact,in the con-struction licensing aspect of this very proceeding, the adequacy of.the Staff review has, in major respects, been
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considered and found adequate upon an adjudicat ve evidentiary record.
Consumers Power. Company (Midland Plant, -Units 1 and 2), - LBP-74-71, 8 AEC 584 (1974),
affirmed, ALAB-283, 2 NRC 11 (1975), clarified, ALAB-315, 3~NRC 101 (1976).
See also Commission's Memorandum and Order dated. November 6, 1978.
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Second the contentions are not amenable to resolution in an ev4d = H = 7 hearing. Bey are almost impossible to defend against.
Finally,' the bases sulmitted by Mrs. Sinclair simply do not factually.
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support the contentions!
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Cont ation 4 Bis ccntention is. rejected since it is no more than m argument i.
for ayywytiate treatment of the unresolved generd issues. Rese have bem separately covered by subsequent contentions.
- Contention 5
'Ihis contention is basically an unsupported extension of Contenticus _1 and 2 to a generalized allegation that the Staff does
' not conduct impartial and independent inquiries into the validity of
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the Applicant's siMasions. Be only matter specifically cited by Intervenors is currently before a different Board. Be ecntention is therefore rejected.
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. Contentions 6 & 7-1
%ese contentions are rejected,' subject to possible res1Masion 4
as stated below. Counsel for the Intervenor has identified the question i
2/ ng, V. Gossick, et.al., Atcmic Energy Comissicn Task Force Reparit:
' Study of the Reacter Licensing Process (October,1973), and the recently released Csieral Accotnting Office Report No. EMD-78-80,
'h a NRC Needsto Aggressively Monitor and Independentiv Evaluate i
Nuclear Plant Construction' (Septaber,1978)."
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4-9 as being whether there is competence for quality assurance md quality control (Tr.151). The t'emniasion found, in its' Menorandun and Order -
of Novenber 5 1978, that Intervenor had not sustained its burden there
.of. demonstrating the possibility of a significant issue warranting a requested reopening. Simi.larly, no such demonstratim has been made before this Board.
Although the burden of justifying a contention
'in an operating license procr.dag may be less than that of justifyirg, reopening of a cmpleted cone ':rrtion permf.t preceeding, even the 4
lesser burden is not met by 4. laid assertion that the Applicant's i
record is " characterized by abddy performance and a tendency... to trgue with the Staff and make excuses..." The Board will, howew.r, pernd.t Intervenor to carry out ' discovery directed to current operation of the Quality Assuranea Program (including the alleged " doctoring" of i
telding certificate's and will entertain a suitably specific contention on the matter up.n.the conclusion of discovery.
Contention 8 1his also is rejected as a contention. Treatment of unresolved I
generic issues is required pursuant to the directions of the Appeal Board in Gulf States Utility Cmpany (River Bend Station, Units 1 & 2),
AIAB-444, 6 NRC 760 (1977), and subsequent decisions. Such treatment makes a genera 14=d contention such as this one umecessary. To the.
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extent that the proposed contention is specifically directed towards the ACRS report, the discussion of the matter in the nmdasion's e
November 6,1978 MacrandLxn and Order is dispositive.
Contention 9 Again, the Comission's ruling of November 6 is dispositive of the matter and i:his contentim is rejected. The Conmissicn's ruling was made in full knowledge of the new agreement betimen Dow and Censuners
~ and endorses the' Appeal Board finding that Dow presently intends to
. live up to its contract. Moreover, the essence of the Camission's ruling was Dow's intent, not the specific contract.
Cantentim 10 The contation is rejected. 'Ihe Appeal Board findings in AIAB-458 established that need for power existed at the time of that opinion and no showing has been made of substantial changes since dat time as
- required by 10 CFR 51.21 and 51.23(e).
. Contention 11 As with proposed Contenticn 9, this contatim is rejected as it was disposed of by the Camissim's Order.
_ Contention 12 This contention is rejected on the basis of lack of specificity and as a challenge to the regulaticns regarding accidents less probable
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C than the design basis accident.
In addition, the inplication that the previous analyses have been inproper based on the Rasnussen Report nust be rejected ~since the original CP review predated that report.
Contention 13 This contention deala with financial qualifications.
Intervenors assert that changes in Applicant's financial situation have occurred since issuance of the Construction Pernd.t. 'Ihe Staff wx.ild have us reject the contention on the basis that it cites for its basis 1977 testinrxty on "the reand preaadinga on which a final decision has bem rendered." The testimony in that proceeding is not before this Board and we find nothing relevant in the Order resulting from that proceeding (6 NRC 482) or in the Appeal Board's review thereof (7 NRC 155). The Staff's objection appears to be unsupported. The Applicant did not sm fit to respond to this proposed contention at all. The Board will
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therefore accept Ccritention 13 with the limitation that it shall apply j
only to the qualifications-of Consuners to coerate the plant, the gialifications to construct not being before this Board.
Contention 14 To the extent that it involves quality assurance, this is rejected far the same reasons as contentions 6 and 7 which deal with the same subject. With respect to mcnagerial ccupetence to operate the. facility O
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s 7-the emcention is'not sufficiently specific. As with the preceding ecntention, the question of empetence to emplete construction is not before this Boa t Contation 15
'Ihis is a restatemate of several earlier contations ad is rejected for the same reasons.
Contentions 16-19 These four."contations" appear to all concern need-for-power erd to consist of argunent revolving around the unsupported assertion in proposed Contatica 16 that the facility is not needed for at least the next decade.
In view of the perious determinations of need-for-
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power in this case and the lack of any showing of a substantial change, these contentions aust be rejected.
Contentions 20 and 21 These contentions are essatially a challenge to the Cmmission's fuel cycle rule and as such must be rejected on that basis. In additicn, they are not adudsisible in operating license proceedings lacking special'ciremstances.
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o l-Contention 22
'Ihis' contention,which sinply asserts an inadequate discussion of the character and effects of low-level radioactive wastes, is rejected as being insufficiently specific.-
i Contention 23 This contention'nust be rejected as ncn-specific. 'Ihe only sp*4fic exagle cited--that certain questions were unanswered at the time of preparaticn of the contention--is a normal situation at that stage of a proceeding and not an adequate basis for a contention.
Contention 24 This contention, not objected to by any party, is accepted except l
i to the extent that the first sentence refers to previously rejected Contention 9.
This acceptance, however, is further conditioned by our agreenent with the Staff's ccmment (November 28, 1978 response, page' 6)
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I that the question appears not to be one of site suitability,- but rather of the. type of material used by the Applicant under the building in
- question. A suitable restatement of the contention shall be provided by the Intervenor at the time required by the schedule below for siihnf =sion of other restated contentials.
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1he contenticn is rejected.
Issumee of a 402 pemit is not a pre-requisite for NRC licensing. Philadelphia Electric Coupany (Peach Bottom f-Atcznic Power Station, Units 2 and 3), AIAB-216, 8 AEC 13, 58 (1974).
j It has not been alleged that issuance of the 402 permi.t is likely co 1
introduce factors sign 4&antly affecting the cost-beefit halance previously radai in the construMim pemic prm amiing.
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Contention 26 This cententicn is rejected. It asserts that no buyers or potential 4
i buyers of an interest in the plant are listed as applicants. There is
- no requirement that pottmtial buyers be included and the Applicant has j
ctated that at such time as there are buyers they will be included as 1-co-applicats.
T Contenticn 27 4
This contenticn asserts that no adequate evamarian plans exist.
The contention is accepted.
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tcntencions ' 28-56 These proposed cocentions appear to each seize upon one or more unressivt.1 generic problems idatified in NUREG-0410 and, in most cases, in testimony prepared by the Staff in another recent case and propose these problems as appropriate contentions in this case. The 4
Applicant's response posed no objection to any of these nor did the Applicant do so in the prehearing conferece. The Staff, in its resporse, objected to lack of specificity of several. These objections have been taken into account in our considerations.
The Board hcs eWW in a cursory manner, a new report on unresolved generic problems issued by the Staff during the time this Order was being prepared. This new report, identified as NUREG-0510, recategorizes the problems and identifies those ecnsidered by the Staff to represent " unresolved safety issues".
These latter issues would 2
appear to be closely related to the matters wi.th which the Appeal Board was concerned in its Riwr Bend and subsequent decisions. The
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Board requests the parties, in carrying out the procedures described
- below, to confer to assure that any restatement of the contentions would,: to the extent practical, take the new listings into account.
In addition, the Staff's testimony on uncontested issues'should, wh m d
E In Intervenor's petition the numbering of contentions inadvertently triplicates use of nunber 45 and duplicates use of 44,- 46, 47 and 48.
- The Board has used 45' to refer to the aecond 45 (on pages 30-31) and 44a, 45a, 46a, 47a, and 48a to identify the replications appearing on pages 32, 33 and 34. Treatmet cf all of these is included in this section of our order.
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d4=1 with the testinony on issues in cet ation, be fully respon-p sive to the Appeal Board's. concerns.
Contentions 28 through 50. appear to the Board, based on the material thus far available, to be based upon ayyrvyclate subject i
matter areas, although the Board agrees tnat many (including some not 4/.
spac4Frally idanNMed by the Staff) are not sufficiently specificT 4
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In addition, the Board considers it likely that by the time that the Staff review of these matters is ccepleted and the results are docmented and available to the other parties and discovery is coupleted, the 2
pm..:ies will agree that some are, for one reason or another, no longer avesvyilate for litigaticn. The Board will allow discovery to proceed on each of proposed Contentions 28 through 50. Such discovery shall s
start as soon as practicable and shall be coupleted in accordance with a schedule to be set forth below. Upon empletion of discovery,
- the Intervenor will be required to restate the cmtentions she proposes i
to continue to pursue, in each instance cxnitting arguments but setting i
farth sufficient specificity and detail to deonstrate applicability to this proraading and to pennte the other parties to prepare responsive U %e Board recognizes that the Scaff has objected to certain conten-itentions in this group on any of several bases. We have not, however, rejected them at this stage because in each case the cmtention is connected with me or more if the Staff's '_'unresuped generic probled'-
tasks and it is not clear that that in itself is'not sufficient reason
.for =Mering them. Final decision unst await the restatewat of contentions and argunst thereon.
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testirrny. After opportunity for response by the other parties, the Board will make final determinaticn of the admissibility.
Contention 51 Proposed Contention 51, to which Applicant does not object, deals with electrical wiring matters which Staff asserts are not applicable to Midland. During discovery Intervenor will have access to the information upon which Staff bases this assertion. The ccntention will therefore be treated in the same way as 28-50.
Contcnticn 52 This proposed contention is rejected. It appears to the Board to be a simnef type statement presenting no litigable issue.
Contention 53 This does not appear to present a suitable issue and is rejected.
In actuality, th; adequacy of the "arviromstal Report is primrily based on whether it can be used by the Staff to provide info =Hm for the Staff's eviromental statement
.Ccntention 54' This.is rejected for the same reason as 53.-
Cantention 55 This matter--synergism--was thoroue;hly considered in the construc-
. tion permit haadng and is. rejected here on the ground of res judicata.
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Contention 56 I
'Ihis contention is rejected. It presents no litigable issue and is simply an acteupt by the Intervenor to re-An certain rights already 1
adequately treated by.the mmiasion's. rules.
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> 'Mapleton'Intervenors'and Wendell-Marshall's Petition to Intervene i
Mr.-Marshall; filed a' petition dated September 8, 1978 I
on behalf of!himselfEand Mapleton Intervenors.
In our
' Memorandum and Order-of October 12, 1978 we pointed out i
certain -deficiencies 'in the petition with respect to in-
'terest and indentity of Mapleton Intervenors'and-Mr. Marshall's authority to represent that association in this proceeding.
The Board provided an opportunity until 15 days before the special prehearing conference for Mapleton Intervenors to file an amended petition conforming I
with the Board's observations.
Mapleton did not file a
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responsive amended petition.
The defects of its original
' petition remain uncorrected.
The petition with respect to f
Mapleton Intervenors is therefore denied.
4 In its-Memorandum and Order of October 12, the Board recognized Mr. Marshall's interest in the proceeding, but unoting that - the' petition was 1. ate, and that the Applicant-
- asserted that Lall-aspects (9 contentions) of his petition were res.judicata, the Board granted temporary intervenor F
- status to Mr. Marshall' until these problems could be con-I The Board granted' an opportunity to the Appli-sidered.
. cant to document its then unsupported argument-that the 4
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." aspects" as to which-Mr.. Marshall sought to intervene were res~judicata.- We: stated;that we-agreed w'ith t1e logic of Applicant's. position that if,1because of.res judicata, thereJwere no litigable aspectsLof the petitions, the
-petition is invalid under ~10 CFR 92.714(a)(2) as revised.
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.On October.31,,1978 the Applicant filed.its brief in support of its res judicata-position.
Mr. Marshall did not: answer.the brief. 'The-Applicant addressed each a
- of the nine contentions
(" aspects"). With respect to the.
j first'8' contentions, Applicant. carefully detailed where.
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- in the construction: permit phase of-this' proceeding the-subject matter was adjudicated.- The ninth contention asserted that the Midland. plant is a! gent)rsl nuisance and
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will: interfere _ with human -rights -and dignity.
Applicant-
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r-stated that contention is inadequate because it1was vague, not very intelligible, and was not 1
a proper subjectimatter for,this proceeding.
Applicant l
argued 'also that -the. matter was res tjudicata in the Michigan courts.
j As we discuss'below.we are now persuaded that the first-
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8 ? contentions were. not suitable aspects for intervention becauseiof.res judicata, and:that the ninth was not suitable:
- 1 on the basis of subject. matter,' not reaching the issue of
. res judicata in the: Michigan court proceeding.
Thus the c
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_ original-petition did not satisfy.the " aspects" requiremerts'
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of therrevised intervention rules and had Applicant initially (.
. supported its. argument by its October 31 brief the petition might have been. denied in our previous ruling.
. Also ~in our October 12 ruling, Mr. Marshall was given
- the opportunity provided under 10 CFR 92.714(a)(3) to amend his petition by submitting new contentions up to 15 days -
before the special'prehearing conference convened under
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9 2.7 51 (a ).
Mr. Marshall filed such an amended petition on i
i October 31.
.This petition contained a contention relating
- to settling of the generator building, which, all parties i
concede, raises a valid. issue and satisfies the " aspect"
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requirement of the-rule.
In view of this, Mr. Marshall'.s petition will be considered as a late but otherwise valid petition,.despite the fact that we may have led the Appli-cant to expect that, if it could be established that the Marshall petition was invalid as originally submitted, it would be dismissed.
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. Late ' petitions ' to. intervene must be considered under'the provisions of-82.714(a)(1) of the Rules ~of 5f
- Practice.-'
t jp( _In pertinent part:
"Nontimely filings will not be entertained absentLa determination by the Commission,
.the presiding. officer or the' atomic safety and licensing-board designated to rule.on the petition and/or' request,'.that the. petition and/or request should be granted based upon a balancing of the 1-following factors in addition to those set out in paragraph (d) of. this section:
'(1)
Good cause, if any, for failure to file on time.
(ii)- The availability of other means whereby the petitioner's. interest' will be protected.
j-i(iii)
The ' extent to which the petitioner's partici-pation may reasonably be expected to assist :
in developing a sound' record.
(iv). The extent to which the petitioner's. interest l~
will be represented by' existing parties. -
(v) 'The extent to which the petitioner's parti-cipation will broaden the issues or delay the z proceeding.~"
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3-l Mr' Marshall ~ asserted as his cause for late f 'ng that he did not observe'the notice of opportunity to intervene'
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in the Federal Register.
Normally we would not accept this' as a controlling reason, -but Mr. Marshall states.that as a party.(Mapleton Intervenors) to the Midland construction
- permit' proceeding, he expected that he would have been served with notice of the operating license application.
J It'is difficult to evaluate this reason.
We indicated in 4 -
our Memorandum and Order of October-12 that the Board would defer ruling upon good cause for late filing until the special prehearing conference, intending to take that occasion to explore the matter further.
Unfortunately Mr. Marshall be-i cause of illness did not attend and his attorney could not provide additional information.
Tr. 8, 9.
Based on the 4
s available information, we regard Mr. Marshall's reason for late filing to be good cause, but rather weak good cause.
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'Thus'he has a greater burden under the other four tests of'
. late 7etitions.
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are are no other means by which his interest in this proceeding:will be adequately protected.
This factor weighs in favor of admitting him.
There is considerable question concerning the extent to which his participation may_ reasonably be expected to assist in developing a sound record.
Mr. Marshall was 'too ill to 4
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. attend the.special prehearing conference.
His attorney 1
hopes that~"...at some of the. hearing at least he can come personally."
'Tr.'10.
But, he is under doctor's medica-1 tion _and for him to participate even in his home' town,.
Midland, "...in terms of being in the. hearing room is most difficult "
Tr. 79.
He.would have to depend up6n his attorney, who'is not-sure if he can continue, and who is not f amiliar with the proceedings.
His other representative Mr. Gadler, who lives in Minnesota, could not attend.
Some of Mr. Marshall's communications, his mailgrams, with the Board have been partly unintelligible, but other filings have been
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well written and organized.
Apparently he depends upon others.
The one contention demonstrating Mr.- Marshall's interest and accepted by the Board is also a contention of Mrs. Sinclair.
From our observation of the proceedings, there is every reason
.to believe that this contention, diesel generator building settling, will be diligently pursued by her..'Also, his general interest, living in
' close proximity 'to the plant is an interest shared by r
-Mrs. Sinclair.- This factor weighs against Mr. Marshall's intervention, j
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- Admitting Mr. Marshall on the basis of the' single contention will not broaden the issues.
This favors intervention'.
Mr. Marshall's-health could delay the pro-1ceeding if the~ proceeding were to be scheduled around his health' problems.. This factor weighs heavily.against
. intervention.
These factors are not. precisely quantifiable and weighing is difficult.
Mr. Marshall lives within l} miles of the~ facility and-has had aLlong interest in the con-i struction permit proceedings.
Without these strong factors the Board would deny his petition.
As a matter of discretioa the Board grants his petition to intervene, but rules that
. pursuant to 10 CFR 12.714(f), his right to affirmative par-ticipation shall be limited to the single issue discussed 6/.
belown Any participation shall not be. permitted to delay the' proceedings, or control the location or time of the 1
hearings, and shall be at the discretion of the Board.
This~ limitation is a. material. aspect of the exercise of the Board's discretion in~ permitting intervention.
g Mr. Marshall submitted two amended. petitions on October 31, 1978.
One, 'a. mailgram, was partially un-
- intelligible.
The~ Board regards the secona amendment, the
. letter of October 31, to be the-intended contentions.
6/ ' This ruling assumes that Mr. Marshall will not appropriately -
t assert ; valid contentions. la ter. in ~this ! proceeding.
/ e.g., Jour. ruling on Contention 5,'below.
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.. Contention 1.
This' contention asserts that radioactive spills from Palisades Plant indicate that the same.. experience will take~ place at Midland.
It is denied for irrelevancy, lack of basis, and because the issue of radiological releases from Midland ~is res judicata.
Cont-3ntion'2 This is the same issue as Sinclair contention 24.
It is accepted as it relates ~to settling of the Midland diesel generator building.
Contentions 3 and 4 4
These are rejected.
They restate a common law nuisance contention and raise no issue cognizable'by the NRC.
Contention-5 ContentionL5 relates to the icing and fogging potential i
from the Midland cooling system.
The issue appears to be res judicata.
As Applicant stated in its res judicata brief of~ October'31, this_ issue of fogging and icing in the. area around th'e cooling pond was decided by the con-1
.struction permit hearing board.
5.AEC 214, 226-28.
See particularly Initial' Decision paragraphs 69, 72,.and 77.
i See.also ALAB-123, 6 AEC 331, 354.
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'However',.some confusi'on' exists about this contention.
j' iThe Staff did not oppose this contention because, according to counsel,..the original proceeding: anticipated cooling towers which were later eliminated from the design.
Tr. 64.
" Applicant agreed that this was the case.
Tr. 73.
- Mr. Marshall's ' counsel could not state in which 'way, if any,
the operating license consideration of cooling system would differ from the construction' permit phase.
Tr. 53-56.
-The construction permit board decided that use of a
' cooling pond for condenser water.was suitable.
177.
The
'FES. issued March 1972-described a cooling system whereby heated water from the' condenser passes directly to the 1
cooling pond.
However the design also anticipated a rela-1 tively small-amount of heated service ws ter cooled by blow-down cells.- FES III:5-8 and Fig. III-2.
The elimination of j
these cells, if such has indeed - occurred, would not appear fto prov'ide an adequate basisnfor Mr. Marshall's contention.
The Staff somewhat cryptically ~ states in its response to l.
Contention 5 that the contention is based upon Mapleton Interven'~s' observations of. discussions between the NRC Staff and. local Midland officials last summer.
In the absence of a -demonstration that the fogging and icing issue depends upon circumstance materially changed w+ - -
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- since the construction -permit proceeding, the Beard views Contention 5:asLres judicata.
Within 21 days following-the service of the Final' Environmental Statement for this
- proceeding Mr. ~ Marshall may file support for-this contention demonstrating changed circumstances, or the_ parties may stipu ate that Contention 5 raises a valid issue for hearing.
Contention 6 a
j This contention relates to the storage of spent fuel rods at the Midland plant site.
A. spent fuel ~ storage system was
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a part of the original. plant design,of. course.
The express
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decision-by. the construction permit licensing board.not to considerithe fuel cycle. aspect of spent fuel was affirmed tur i
the Appeal. Board ~ and that= decision with respect to the i
construction permit proceeding is now res judicata.
In this-
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operating license proceeding, the fuel cycle rule, Table S-3, l prohibits an independent evaluation of the fuel cycle l
effects.
This contention is therefore rejected.
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L-Cantention~7 J-I Contention.7 asserts that present technology prevents
-nuclear plant operation with'zero emissions, thus there is a -health : hazard.
Zero emissions'are not. required by law or 4
regulation.
At cthe prehearing conference, Intervenors '
.ounsel:~ attempted to amend Contention 7 Int asserting that S
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. an international cgreement with' Canada has imposed a moratorium on any source of radioactive discharge into the - Grea t Lakes.
Even the language cited by counsel.does i
not support his position.
The standard in the cited language-r is "... the. lowest practicable levels and'in any event should be controlled to the extent necessary to prevent l
harmful effects on health'.' ' Michigan's authority, still
' unexercised, to adopt legislation prohibiting discharges
- of airborne radioactivity does not impact upon this pro-ceeding nor does this proceeding " tie the hands of the State: of Michigan" under the Clean Air Act.
Contention 7 is rejected.
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' Place of Hearing Mrs. Sinclair is represented by Myron M. Cherry, Esq.
of Chicago.
Mr.' Cherry requests that the evidentiary hearings be held.in Chicago,Jadvancing several' reasons in support.
First, Mrs. Sinclair who relies upon volunteer funding, cannot afford large legal or witness' expenses and Mr. Cherry cannot afford personally to make a large con-4
-tribution of time or money.
He will rely upon witnesses 4
Escattered throughout the United-States and Chicago is more convenient 1to them.. Mr. Cherry has voluntary legal assist-ance in Chicago but none in Midland.
Many of Mrs. Sinclair's I
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' contentions are generic and there is no particular reason why they should.lue iheard in Midland.
Applicant'a outside counsel is a Chicago _ firm.
Mr. Marshall has retained -legal crunsel from Minnesota'which is also where his technical t
consultant,'nbr. Gadler, resides.
Chicago would also be more. convenient for Staff counsel and.the-members of the 4
Board accordingLto Mr.-Cherry.
Chicago has better hearing facilities.
He stated.that he would not be able to re-present Mrs. - Sinclai:- nor would witnesses be as available if the hearings were held in Michigan.
Tr. 90-93.
j 3br.fCherry argued further that he and Mrs. Sinclair have in the past been the principal driving forces in the construction permit proceeding and are likely to be the 2
main factors in the operating license proceeding.
Tr. 95.
All other parties oppose Chicago hearings on the basis that a hearing involving a~ Michigan reactor and Michigan parties should be held in Michigan.
l The Attorney General of Michigan, admitted ast an-l
- interested State under 10 CFR 52.15(c), has not filed con-tentions.
The-Board in~1ts. memorandum of August 14, 1978 4
. explained to the Attorney General that, in a discretionary hea' ring.such~as.an operating license' proceeding, a State could faceithe danger of'having no forum for its views if i
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.the. intervening parties participation should terminate.
Counsel;for the At/ orney General'was requested to consider
- what its Jposition wculd be in this proceeding if Mrs. Sinclair would be forced to withdraw or if her. participation would be sharply reduced becaust sif the expense of hearin gs in Mid-j land.
Counsel explained tha,t the State of Michigan regards j
Mrs.- Sinclair's contentions as important, they should-be 3
heard, and perhaps the. Attorney General would file similar i
contentions if Mrs. Sinclair's participation would be cut-i-
tailed.
'Tr. 85 et seq.
Mr. Cherry responded that the Attorney General did not express interest in Mrs. Sinclair's participation in the construction permit proceeding and has not offered any
-assistance for Mrs. Sinclair in this proceeding.
Tr. 93-94.
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The Board believes' that counsel for the Attorney General does not have a~ realistic understanc.ing of the
~ Commission's intervention rules with respect to late inter-
-vention petitions.- Whether the Attorney General could and would serve as sul effective advocate of Mrs. Sinclair's contentions-is speculative.
The Staff concedes that in the event of the loss of Mr... Cherry's services,for the loss of Mrs. Sinclair's participation, it would not be in'a position to advance her s
contentions.- Tr. 88.
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, Mr. Cherry has a national reputation as an. expert in-
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nuc lear..~. regula tion.. He is known to this Commission as a strong and. experienced advocate. of-the general views held by Mrs.!Sinclair.
He has been.able to enlist the service of an' experienced technical' advisor, Mr. Robert Pollard.
We believe it quite likely that if'some accommodation is not made,--Mr. Cherry will in fact' withdraw or sharply re-duce his participation. lA better record on the important issues admitted into controversy in this proceeding will result if Mr. Cherry is able to continue to represent Mrs. Sinclair.
There is no substitute known to the Board for Mr. Cherry's talents and the resources available to him.
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The Commission's rule favors hearings at the. plant site.
If this were a mandatory construction permit hearing, that consideration would.be paramount.. But in this proceeding, without.Mrs. Sinclair's petition,- there would survive only the one contention of Mr. Marshall relating to the diesel generator building.
We believe, therefore, that a com-
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promise is. appropriate.
After discovery and motions for-summary! disposition and when the contentions are refined, the: Board intends to set.approximately half of the hearing days in Chicago.and half in Midland.. Mr. Marshall's con-4 tention or contentions-and other contentions which are f
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site-specific will be heard in -Midland.
Opportunities for limited appearancesLwillLbe offered as necessary. _In selecting; contentions.to be heard in Chicago, the Board
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-will 'give full consideration _to any suggestions or re-:
quests.of Mrs. Sinclair or her counsel.
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-- 29 SGEDULE i
" As indicated in the 'section of this Order covering the Sinclair i
(Cantations,. discovery activities may be ce===nced at the ccnvenience ofIthe parties; _ Periods of time allowed for respcuses to discoverv requests shall be those prescribed by the remniasim's rules mless otherwise established by nutual agreement of the parties ~ involved.
i Disputes as to timing, objections, requests for-protective orders, j-motions to compel'and simile procedural matters shall be g%.ly i
l referred to the Board. Copies of interrogatories and responses to interrogatories should not be provided to the Board, except that the i
proponent._of-a moticn for a protective order or a motion to conpel-dic:
- ery should provide the material to the extent necessary for the Board to take action.
h The current schedule of the Staff.is, to the best of the Board's
.information, to issue the DES cn February 9,1979 and the FES on n
June' 27,1979. Discovery cn environmental matters shall be coupleted
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by June 1, 1979.
Supplemental _ discovery based ~ upon material in the FES different from the corresponding informatim in the IES or not contained 4
in the IES may_be carried out if it is requested of opposing parties -
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All such discovery shall be
),
within fourtem days of service of the EES.
ccmpleted within 30. days of service of the EES. Restatement of ccn-
-- tentions shall te suterttted within 10 days after completicn of each h
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P ase of discovery, as avytuysiate. Responses by other parties are due h
fin days. after ' service of restated contentions, but may be emitted if ecntattions are =rmily agreed upon prior to submittal.
Similarly,L the-scheduled date for issuance of the SER is May 1,1979 j
and that for issuance of the Supplement is August 1,1979. Discovery on radiological health and safety matters shall be coupleted by July 6,1979 and supplemental discovery based on the SER Supplanmt by 30 days after service (requests 14 days after service). Restated contentions shall be chie as set forth for environmental matters, but based on issuance dates of r
safety dom = men.
7 If any of the above. dates for Staff h = mt issuance are changed i
substanHally, the Board will, upcn request by any party, review the j
dates ' established above and make any ayyuvetiate changes.
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.Upxt issuance of the FES and the SER Supplement the Board will by separate orders establish dates for. submissicn of notions for simnary dispositicn. These datcs will be s.py&wdmately 60 days after issuance of the relevant Staff'doctwnts. Dates will~ also be established upcn E
issuance of those h=mtc for further prehearing conferences, ayytud-
- mately two weeks after the final-date-for moticns for simnary disposition.
Although not established at this time, parties may anticipate the start of hearing about 30 to 60 days after the prehearing conference with prepared' written testimony at an appropriate earlier date. A determi-f-
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,. e nation by the Board as to whether or not environmental and health md safety matters will be heard at separate hearings will abide further progress in issuance of the Staff docunsts.
'Ihis Order grants and denies intervention status. Therefore, pursuant to 10 CFR 52.714a this Order may 1;e appealed within ten (10) days after service.
SO ORDIBED.
FOR TIE ATOMIC SAFELY AND LICENSING E0ARD V
Ivan J. Smith, CbMmm Dated at Bethesda, Maryland this 23rd day of February 1979.
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s UNITED STATES OF AMERICA
- NUCLEAR REGULATORY CO'-DIISSION S
In the-Matter-of
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CON $U:ERS POWER-COMPlai
)
Docket No.(s) 50-329 1 "
).
50-330 6
_ (Midland. Plant, Unit Nos. 1 and 2)
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CERTIFICATE OF SERVICE
- - I hereby certify that I have this day served ~ the. foreg.oing docu=ent(s) upon each person designated on.the official service'11st co= piled by the Of fice of the. Secretary of the Coc tission in this proceeding in accordance with the require =ents of.Section 2.712 of 10 CFR Part 2-4
' Rules of Practice, of the Nuclear Regulatory Commission's Rules and Regulations.
Dated at Washington,.D.C. this 197h.
dd:
day'of
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Of fice 'of the Secretary of tihe Commission r
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' 95 UNITED STATES-0F AMERICA NUCLEAR REGULATORY COMMISSION
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-In the Matter!o'f
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CONSUMERS PONUt COMPANY.
)
Docket No.(s) 50-329 OL
)
50-330 OL
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(Midland. Plant, Units 1 and 2)
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.m SERVICE LIST Grant J. Merritt, Esq.
Ivan W. Smith, Esq., Chairman Thompsen,-Nielsen, Klaverkamp and'-
Atomic Safety and Licensing Board' James U. S. ' Nuclear. Kegulatory Comission 4444 IDS Center Washington, D.C.
20555 80 South Eight Street Minneapolis, Minnesota 55402 Mr. Lester Kornblith, Jr.
Myron M. Cherry, Esq.
Atomic Safety and Licensing Board One IBM Plaza U.S. Nuclear Regr.latory Comission C,hicago, Illinois 60611
^
Washington,.D.C.
20535 1
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 l
Coun'sel for NRC Staff-i
'i U.S. Nuclear Regulatory Commission-Judd L. Bacon, Esq.
Washington, D.C.
- 20555 Consumers Power Company 1
4 Lega12 Department Michael I.'
Miller, Esq.;
212 West Michigan Avenue Isham, Lincoln & Beale Jackson, Michigan 49201 One First National Bank Plaza Chicago,; Illinois-60603 a
Ms.: Mary Sinclair 5711 Su:=erset Street
- Midland,E Michigan 48640 1
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- Steve Gadler,-Esq.
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- 2120 Carter Avenue.
St. Paul, Finnesota -55108 l
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