ML19338C219
| ML19338C219 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 10/03/1978 |
| From: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8008050669 | |
| Download: ML19338C219 (7) | |
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' UNITED STATES'0F AMERICA NUCLEAR REGULATORY. COMMISSION a
.BEFOR$ THE ATOMIC SAFETY AND LICENSING BOARD h 9 f5 In the Matter oi
- CONSUMERS POWER COMPANY Docket Nos._5_Q-329 1
(Operating Licenses Proceeding) 50-330 (Midland Plant,. Units 1.and 2)
NRC STAFF ANSWER TO MAPLETON INTERVENTION PETITION I.
Introduction.
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'Wendell H. Marshall-filed a petition dated September 9,1978 requesting
. leave to intervene in this operating license pro::eeding on behalf of
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an organization' titled Mapleton Intervenors. The NRC Staff does not oppose the petition at this time.
II.
Backaround Mapleton Intervenors were admitted as a party in the construction permit proceeding. They were later consolidated with other intervenor.
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. groups of like interest and represented by Myron Cherry,'Esq. During the pendency-of proceedings resulting from a Court of Appeals. remand of the decision granting a construction ' permit to Consumers Power
. Company, Mapleton.Intervenors indicated-that it no longer wished to be
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represented by_Mr. Cherry. '(See November'16, 1977 Memorandum of Telephone-Call, Atomic'SafetyandLicensingAppeal: Board). Mr. Cherry, however,
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- indicated at oral argument on November 17 before the Appeal Board that
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he.still; represented Mapleton. (Tr. 6). No further action was taken
.on:the g eg.
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4; OnLApril 17,1978,- Steven A. Varga,- Chief Light Water Reactors Branch 4.JDivision of Project Management of the NRC Staff sent a letter to Consume'rs Power-Company informing it that its application had been accepted for review and enclosing a copy of the notice which was being forwarded to~ the Federal Register for publication. Also_ enclosed was a notice for opportunity for public participation which was to be published.in _ the Saginaw News,. Midland News, The Stat 2 Journal, and Grand Rapids Press. A copy of Mr. Varga's letter was sent to the then official l
. service -list in the CP proceeding which included Mr. Cherry but did not include any other member of either Saginaw or Mapleton Intervenors.
Mr. Marshall contends in essence that his petition should not be treated as late filed since neither he nor any other member of Mapleton was listed on the distribution of the Notice of Hearing for the Operating License Proceeding.
III.
Good Cause for Failure'to File on Time The Notice of Hearing.for this proceeding was published on May 4,1978 (43 Fed. Reg. 19304). The last date for filing tinely intervention petitions.was. stated as ~ June 5,1978.
Federal Register notice constitutes actual notice.to all fpersons as a matter of law.
In addition, Notice was a so_ published in -local newspapers in the plant's vicinity. The Commission's l
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3-Rules.of Practice provide that late petitions must demonstrate Good Cause for failure to file on time. Grant of a late petition then depends upon the Board's' balancing.of several factors, viz, the availability of other means to protect petitioner's interest, the expectation that petitioner may b'e reasonably expected to assist record development, the extent to which petitioner's interest will be represented by existing parties and whether pe'titioner's partiEipation will' broaden the issues or delay
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the proceeding.
i While Mapleton can be held to have had actual notice of this proceeding, it was not unreasonable of it to have expected the came courtesies extended to ~other parties to the CP proceeding.
Therefore, it can be concluded that Mapleton has shown sufficient good cause at this early stage for its late filing.
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.Since no contentions have been admitted and no prehearing conferencas have been held, it is impossible to determine whether Mapleton's participation will broaden issues. Mapleton certainly will not delay
-the start of the proceeding. Therefore this factor must weigh in Mapleton's. favor..
While the= petitions of Mary Sinclair and the. State of Michigan have been
.found to refle'ct' adequate interest to participate in this proceeding, neither party. has 'a~ presently admitted contention. Thus since it is not
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.yet:possib.le-to determine whether a. contention will be admitted and' a 2
.hearingLheld,-it'cannot be said that petitioner's interest will be represented; by existing parties or by other means in this' proceeding.
There is noth'ing' in the Mapleton petition which !would enable one to
- determine.whether Mapleton possesses any expertise which would materially -
contribute-to -the development of tne record. While this factor tends to we_igh against Maple' ton, on balance it cannot be concluded that it out-
-l weighs'the others.
Although Mapleton has no.t made a-particularly strong showing of good
~cause for late intervention, no significant prejudice to the other parties.
- appears. Therefore -the -Staff believes Mapleton's-petition should be-treated on the merits.
1 IV.
= Petitioner'.s Interest
- This-. Board has determined that the! standards for. determining cognizable interests"in this proceeding will be the' Commission's current rule 10 C.F.R. 52.713 and associated decisions.
(Memorandum and Order dated
[Augu'st 14,1978).
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. O Mr. -Marshall states that he. lives approximately 1-1/2 miles downwind downriver from the Midland site. He -states that other Mapleton Intervenors live in the same area. He alleges several " aspects".of the proceeding in which he is interested including radiological effluents to the air and water and ice and fog hazards which may occur around roads and bridges in the vicinity.
.Mr. Marshall's letter is sufficient to establish his interest in the proceeding, however, it fails to identify with ' sufficient detail the names e
and addresses of other. members of the Mapleton organization.
No indication appears that any member has authorized Mr. Marshall to represent them:in this proceeding although he is apparently president of the group.
In this regard, while Mr. Marshall may participate individually, he should be required to supplement his petition as to Mapleton so that organizational interests can be established.
-V.
Conclusion Mr. Marshall should be admitted as an intervenor in this proceeding
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conditioned on his-filing an acceptable contention fifteen days prior to the first prehearing conference. He should be allowed to amend his
. petition during the same. time to reflect the specific members of his 1
organization-who authorize'him to speak in their behalf.
Respectfully submitted.
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William J. O ste
-Dated?at Bethesda, Maryland.
Counsel for RC Staff
- this 3rd day of-October,1978.
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UNITED. STATES OF-' AMERICA '
- NUCLEAR REGULATORY COMMISSION
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- BEFORE THE-ATOMIC' SAFETY'AND' LICENSING BOARD
- 4 In: theLMat'ter of l)L
' CONSUMERS. POWER COMPANY j)
Docket ~Nos. 50-329 1
50-330
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(
. Midland Plant, Units' 1 and 2).
- )'
(Operating Licenses Proceeding)
' CERTIFICATE 0F SERVICE I hereby certify that copies of "NRC STAFF ANSWER TO MAPLETON INTERVENTION PETITION", dated.0ctober?3,1978, in th'e above-captioned proceeding, have been served' on the following, by deposit in the United States mail, first class, _ this' 3rd day of October,1978:
L.
Ivan'W. Smith,'Esq.
Ms. Mary Sinclair-Atomic-Safety and-Licensing Board-5711 Sumerset Street
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. U. S. Nuclear Regulatory Comission Midland..' Michigan 48640 L
1 Washington, D. C. ~20555 j'
Michael Il Miller, Esq.
E Mr.J Lester Kornblith, Jr.
-Ronald G..Zamarin,.Esq.
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~ Atomic Safety and' Licensing-Board Martha E. Gibbs, Esq.
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.U. S. Nuclear Regulatory Comission -
Caryl A. Bartelman, Esq.
WashingtonnD..C. 20555.
Isham, Lincoln & Beale b
One First National Plaza L
-Dr. Frederick P. Cowan-42nd ~ Floor
?.152 N. Verde Trail-Chicago', Illinois-60603
~ Apt. B-125.
Boca Raton, Florida 33433 Atomic Safety & Licensing-Board Panel t
p U. S.; Nuclear Regulatory Comission
.Fr.-J. Kelley".
Washington,'D. C.
20555-L Attorney General.of the State of Michigan j
- Stewart H.'JFreeman-.
Atomic Safety & Licensing Appeal Pang
- Assi~stant Attorney General
. U. S. Nuclear Regulatory Comission~-- 1
% Gregory T. Taylor.
Washington, D. C.
20555 1 Assistant Attorney General Environmental Protection ~ Division -
Docketing and Service Section L-720 Law Building,,.
Office'of the Secretary H
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Lansing,1 Michigan 148913:
U.- S. Nuclear Regulatory Comission Washington, D. C. '20555
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Myron M.MCherry? Esq..
11< IBM Plaza. '
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ChicagonIllinois'.-60611 L
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~Judd L.~ Bacon,~Esq.
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Consumers ' Power Company.
-212 West Michigan Avenue-s-
i Jackson, Michigan -43201 4
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William J.. Olm/--stead
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Counsel-for NRC Staff
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, ",,w UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSIN 4
4 In the Matter of e d' *g
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.S.
CONSUMERS POWER COM
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il ket Nos. 50-329
. ?V V) 50-330
-(Mi gid hndM
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(Operating Licenses Proceeding)
NRC STAFF ANSWER TO MAPLETON INTERVENTION PETITION I.
Introduction Wendell H. Marshall filed a petition dated September 9,1978 requesting leave' to intervene in this operating license proceeding on behalf of an organization titled Mapletor Intervenors. The NRC Staff does not oppose the petition at this time.
II.
Backaround Mapleton Intervenors were admitted as a party in the construction permit proceeding. They were later consolidated with other intervenor groups of like interest _and represented by Myron Cherry, Esq. During the pendency of proceedings resulting from a Court of Appeals remand of the decision granting a construction permit to Consumers Power Company, Mapleton Intervenors indicated that it no longer wished to be represented by Mr. Cherry.
(See November 16, 1977 Memorandum of Telephone Call, Atomic Safety.and Licensing Appeal Board). Mr. Cherry, however,
_ indicated at oral argument on November 17 before the Appeal Board that he still represented Mapleton. (Tr. 6).
No further action was taken on the matter.
- c
. ~
On April 17, 1978, Steven A. Varga, Chief Light Water Reactors Branch 4, Division of Project Management of the NRC Staff sent a letter to Consumers Power Company informing it that its application had been accepted for review and enclosing a copy of the notice which was being forwarded to the Federal Register for publication. Also enclosed was a notice for opportunity for public participation which was to be published in the Saginaw News, Midland News, The State Journal, and Grand Rapids Press. A copy 6f Mr. Varga's letter was sent to.the then official service list in the CP proceeding which included Mr. Cherry but did not include any other member of either Saginaw or Mapleton Intervenors.
' Mr. ' Marshall contends in essence that his petition should not.be treated as-late filed since neither he nor any other member of Mapleton was listed on the distribution of the Notice of Hearing for the Operating
. License Proceeding.
4 III.
Good Cause for Failure to File on Time
~
The: Notice of Hearing for this proceeding was published on May 4,1978
.(43 Fed.. Reg.19304). The last date for filing timely intervention petitions was stated as June 5,1978.
Federal Register notice constitutes actual' notice to all persons as a matter of law.
In addition, Notice was also published in local newspapers in' the plant's vicinity. The Commission's L
4
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. Rules of Practice provide that -late. petitions must demonstrate Good Cause
'for failure to file on time. Grant ~ of a late petition then depends upon
.the Board's balancing of several factors, viz, the availability of other means to protect petitioner's interest, the expectation that petitioner may be reasonably expected to assist record development, the extent to which petitioner's interest will be represented by existing parties and whether petitioner's participation will broaden the issues or delay the proceeding.
While Mapleton can be held to have had actual notice of this proceeding, it was not unreasonable of it to have expected the same courtesies extended to other parties to the CP proceeding.
Therefore, it can be concluded that Mapleton has shown sufficient good cause at this early.
f stage for its late filing.
Since no contentions have been admitted and no prehearing confereaces have been held, it is impossible to determine whether Mapleton's participation will broaden issues. Mapleton certainly will not delay-the start of the proceedi.ng. Therefore this factor must weigh in Mapleton's favor.
While the petitions of Mary Sinclair and the State of Michigan have been found to reflect adequate interest to participate in this proceeding,
- neither-party.has a presently admitted contention. Thus since it is not e
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, O yet.possible to: determine whether a : contention will tre admitted and a hearing held, it cannot be said that petitioner's interest will be represented by existing. parties or by other means in this proceeding.
- There is nothing in the Mapleton petitf on which would enable one to determine whether Mapleton-possesses any expertise which would materially contribute to the development of the record. While this factor tends to weigh against Mapleton, on balance it cannot be concluded that it out-weighs'the others.
t Although Mapleton has not made a particularly strong showing of good cause for late intervention, no significant prejudice-to the other parties-appears. Therefore the Staff believes Mapleton's petition should be treated on the merits.
I'.
Petitioner'.s Interest This Board has determined.that the standards for determining cognizable
' interests ~ in -this proceeding-will be the Commission's ~ current rule 10 C.F.R. 52.713 and associated decisions.
(Memorandum and Order dated August 14,1978).
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LMr.' Marshall states that he lives approximately 1-1/2 miles downwind downriver from the. Midland site. -.He states.that other Mapleton Intervenors live'in the'same area. He alleges several " aspects" of the proceeding in which he is interested including radiological effluents to the air, and water and. ice' and fog hazards which may occur around roads and bridges in the vicinity.
Mr. Marshall's letter is sufficient to establish his interest in the proceeding, however, it fails to identify with sufficient detail the names and addresses of otiier members of the' Mapleton organization.
No t
indication appears that any member has authorized Mr. Marshall to-represent them:in this proceeding although he is apparently president of the group.
In this regard,v-e Mr. Marshall may participate individually, he-should be required to supplement his petition as to-Mapleton so that organizational interests cat >_ established.
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Conclusion Mr. Marshall should be admitted as an intervenor in this proceeding conditioned on.his filing an acceptable contention fifteen days prior to the' first prehearing conference. He should be allowed to amend his 4
2 petition during the same time to reflect the specific members of his organization 'who authorize' him to speak-in their behalf.
Respectfully submitted, ti j k
-J.
William J. O ste i
. Dated'at Bethesda, Maryland Counsel for i RC Staff N
this l3rd day 'of 0ctober, :1978
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UNITED Sl ATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CONSUMERS-POWER. COMPANY
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. Docket Nos. 50,329
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50-330-(Midland Plant, Units 1 and 2)
)
(Operating Licenses Proceeding)-
4
. CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER TO MAPLETON INTERVENTION PETITION", -dated October 3,1978, in the'above-captioned proceeding, have
- been served on the following, by deposit in the United States mail, first class, this 3rd day of October, 1978:
Ivan W. Smith,.Esq.
Ms. Mary Sinclair Atomic Safety and Licensing. Board 5711 Summerset Street U. S. Nuclear Pegulatory Comission Midland, Michigan' 48640 Washington, D. C..20555 Michael Il Miller, Esq.
Mr. Lester Kornblith, Jr.
Ronald G. Zamarin, Esq.
Atomic Safety and Licensin~g Board Martha E. Gibbs, Esq.
U. S. Nuclear Regulatory Comission Caryl A. Bartelman, Esq.
Washington, D. C.
20555 Isham, Lincoln & Beale One First National Plaza Dr. Frederick P. Cowan 42nd Floor 6152 N. Verde Trail' Chicago, Illinois 60603 Apt. B-125 Boca Raton, Florida 33433 Atomic Safety & Licensing Board Panel l U. S. Nuclear. Regulatory Comission' Fr. J. Kelley Washington, D. C.
20555 Attorney General of the State of Michigan
' Stewart H.-Freeman Atomic Safety & Licensing Appeal Pane Assistant Attorney General U. -S. Nuclear Regulatory Comission Gregory T. Taylor '
Washington, D. C.
20555 Assistant Attorney General
. Environmental Protection -Division Docketing and Service Section 720 Law Building-Office-of the Secretary Lansing, Michigan' 48913 U. S. ' Nuclear Regulatory Comission j
Washington, D. C.
20555
. Myron M. Cherry, Esq.
1
'l IBM Plaza Chicago,~ Illinois 60611
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[JuddL. Bacon,-Esq.
- Consumers: Power Company.-
-212 West Michigan Avenue Jackson,- Michigan.49201' n
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/r William J. Olmstead Counsel-for'NRC Staff E
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