ML19340D206
| ML19340D206 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 12/04/1980 |
| From: | Paton W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8012290305 | |
| Download: ML19340D206 (12) | |
Text
12/4/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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CONSUMERS POWER COMPANY
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50-330 OM & OL (Midland Plant, Units 1 and 2)
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NRC STAFF BRIEF IN OPPOSITION TO PETITIONER'S APPEAL FROM LICENSING BOARD'S ORDER DENYING PETITION TO INTERVENE I.
INTRODUCTION On November 19, 1980, Wendell H. Marshall appealed from the Licensing Board's October 24, 1980 denial of his pe,tition to intervene in a proceeding arising from a December 6,1979 Order Modifying Construction Permits issued by the NRC Staff (this proceeding was designated by the Licensing Board as the "0M" proceeding to distinguish it from the "0L" proceeding).
In the same Order in which it denied Petitioner's intervention in the OM proceeding, the Licensing Board consolidated the OM and OL proceedings and stated its intent to pennit Petitioner Marshall to participate in the consolidated proceeding.N s
Prehearing Conference Order Ruling (on Contentions and on Consolidation If of Proceedings (October 24,1980) hereafter Prehearing Conference Order) at 12.
. _ - _ II.
STATE? TENT OF THE CASE On December 6,1979, the Acting Director of the Office of Nuclear Reactor Regulation (NRR) and the Director of the Office of Inspection and Enforcement i
(I&E) jointly served on Consumers Power Company (Consumers) an Order Modify-ing Construction Pemits which would prohibit Consumers from perfoming certain soil related activities pending the submission of an amendment to their application " seeking approval of the remedial actions associated with the soil activities for safety-related structures and systems founded in and on plant fill material and the issuance of an amendment to Construction Pemits No. CPPR-81 and No. CPPR-82 authorizing the remedial action,...E On December 26, 1979, Consumers filed a request for hearing. Notice of the evidentiary hearing was published on March 20, 1980 (45 Fed. Reg. 18214-5).
2 Notice of opportunity to intervene was published on May 28,1980 (45 Fed.
Reg. 35949-51).
In the Licensing Board's Prehearing Conference Order the Board admitted contentions filed by Intervenors Stamiris and Warren.
Petitions to inter-vene filed by seven other petitioners were denied.M The only matter at issue here is the denial of Wendell H. Marshall's petition to intervene.
2f Order $I ifying Construction Pemits at 4-5.
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Prehearing Conference Order at 15.
.-.- In its Memorandum and Order ruling upon Standing to Intervene dated July 24, 1980, the Licensing Board construed a letter dated June 23, 1980 from Wendell H. Marshall to Mr. A. Schwencer of the NRC Staff as a petition for 1 eave to intervene. The Board deferred acting upon Mr. Marshall's petition.
i At the prehearing conference on September 10, 1980, Mr. Marshall stated that the only contention he was proposing for the OM proceeding was the first paragraph of his letter of August 27, 1980 to the Board (Tr. 364).
That paragraph reads as follows:
In the event of an accident at the Midland Nuclear Plant which is being built on the Tittabawasse River, in the city of Midland, Michigan, massive quantities of radioactive materials especially in the event of a Class 9 accident, will find their way into the river which flows into Saginaw Bay, the drinking water supply of the Midland-Saginaw crea population.
The Licensing Board ruled that the contention lacked any showing of how the soils settlement matter would impact upon the Midland-Saginaw drinking water supply (even taking into account Mr. Marshall's attempted explanation at the prehearing conference) and therefore lacked sufficient specificity to be admitted as a contention.S/
The Board also stated that even if Mr. Marshall's contention were found to be adequately specific they would reject it on the basis of the timeless-ness factors of 10 C.F.R. 9 2.714(a) (the Board had previously noted that 4/
Prehearing Conference Order at 11-12.
petitioner's August 27, 1980 letter was late since contentions were to have been filed by August 14,1980). The Board noted that Mr. Marshall had pro-vided no adequate excuse for the delay in submitting his contention and further that the contention appeared to raise no issues beyond Stamiris
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contention 4.B.whichithadaccepted.N Since Mr. Marshall had no admissible contention, the Board denied his peti-tion to intervene in the OH proceeding.O III.
ISSUES PRESENTED ON APPEAL A.
Whether this Appeal Board should disregard issues not briefed by Petitioner.
B.
Whether the Licensing Board correctly determined that Petitioner's only contention lacked sufficient specificity to be admitted.
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y Prehearing Conference Order at 12.
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Prehearing Conference Order at 12.
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IV. ARGUMENT A.
This Appeal Board Should Disregard Issues not Briefed by Petitioner The specific grounds stated by the ' Licensing Board for denying Petitioner's intervention was that the only contention submitted by Petitioner lacked sufficient specificity to be admitted as a contention.E Petitioner's brief contains no discussion of the basis on which intervention was denied.
" Appellate tribunals may generally disregard issues not briefed
[ footnote omitted] and we follow that practice [ footnote omitted]." Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1),
ALAB-207, 7 AEC 957 at 957 (1974).
In Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-140, 6 AEC 575 (1973), Donald F. X. Finn filed a notice of appeal from the denial of his petition for leave to intervene but filed no supporting brief as required by Section 2.714a. The Appeal Board stated:
It appearing that.no brief has been submitted by fir. Finn, and that the time allowed by our July 16 Order has long since expired, the appeal is hereby dismissed. At least in the absence of a showing of extraordinary cause, which has not been attempted in this instance, we will not entertain an appeal under Section 2.714a in circumstances where the appellant fails to file the required brief in support thereof. This is so irrespective of whether the appellant is represented by counsel.
In the enforcement of the Rules of Practice, this Board may (and indeed did here) make some
_7f Prehearing Conference Order at 12.
_ _ _ _ _ allowance for the fact that a party before it is proceeding pro s_e_.
But considerations of fairness to other litigants as well as the orderly administration of adjudicatory process, preclude the granting of any appellant of a waiver of as fundamental a requirement of the Rules of that relating to the submission of a brief detailing the basis for his appeal
[ footnote omitted]. H.at575.
Mr. Marshall does not adequately address the Licensing Board's stated reasons for rejecting his sole contention. Nor does his brief advance any of his own reasons why his contention is admissible.
Since his brief does not address any issue properly cognizable by this Appeai Board, it should be disregarded.
"This is so irrespective of whether the appellant is repre-sented by counsel." ALAB-140 at 575.
It should be noted that although Mr. Marshall is proceeding pro se, he is not new to Comission proceedings. He stated at the prehearing conference that he has been participating in this proceeding for 13 years.N His name is shown as a participant as early as 1971.E It should also be noted that the Licensing Board ordered the OM proceeding consolidated with those issues relating to soil conditions and plant fill materials raised in the OL proceeding. E Mr. Marshall is a party to the OL 8/
Tr. 406.
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Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-38, 4 NRC 723 (1971).
10/ Prehearing Conference Order at 13.
proceeding, where he raised an issue bearing on soil settlement.11/
- Thus, Mr. Marshall is a party to the now-consolidated OM-OL proceeding. He will, of course, be free to pursue his soil settlement contention that was accepted in the OL proceeding. Although he was technically denied intervention in the OM proceeding, the Licensing Board stated its intent to pemit him to participate on "any issues in that proceeding in which he may have an interes t."$
B.
The Licensing Board Correctly Detennined that Petitioner's Only Contention Lacked Sufficient Specificity to be Admitted The only contention Petitioner proposed for the OM proceeding is set forth on page 3, supra. The Licensing Board ruled that it lacked sufficient specificity to be admitted.E 11] Prehearing Conference Order at 12.
12/ Prehearing Conference Order at 12. Consequently, Mr. Marshall's position is akin to that of a party in a proceeding who has had one or more contentions accepted and one or more contentions rejected.
Such a party is not permitted to file an interlocutory appeal.
Recently, in Texas Utilities Generating Company, et al. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-621,12 NRC
,(November 24,1980),the Appeal Board reiterated that the Commission Rules of Practice do not permit a person to take an interlocutory appeal from an order entered on his intervention petition unless that order has the effect of denying the petition in its entirety. Because Mr. Marshall will participate in the consolidated OM-0L proceeding as described above, his petition in the OM proceeding need not be considered as having been denied in its entirety.
13/ Prehearing Conference Order at 11-12.
The contantion, of course, should be considered in the context of the issues i
before the Board. Those issues were set out in the notice of evidentiary hearing (45 Fed. Reg. 18214-5). As there stated, the issues are:
1.
Whether the facts set forth in Part II of the Director's Order of December 6,1979, are correct; and 2.
Whether that Order should be sustained.
i The facts set forth in Part II of the December 6,1979 Order provide the basis for suspending certain soil construction activities. There is nothing in Mr. Marshall's contention that relates, with any degree of specificity, i
to either of the issues before the Licensing Board.
4 At the prehearing conference, the Licensing Board attempted to obtain clari-fication from Mr. Marshall with respect to his contention (Tr. 361-8).
In response to the Board's inquiry as to how his concern related to the soil, he responded that the soil in the dike was of the same quality as that "taken exception to by the NRC."1S/ Thus, even when given the opportunity to state with specificity how his contention related to the issues before j
the Licensing Board, Intervenor failed to provide more than a general allegation of a deficiency of the soil in the dike. This, of course, pro-vided the Board with no more informatica than it had in Mr. Marshall's 14/ Tr. 364.
i admitted OL contention which was consolidated in this proceeding.E As for the lateness of the petition, the Licensing Board had previously infomed Mr. Marshall about the required showings by parties filing late contentions.
[Special Prehearing Conference Order, Feb. 23, 19 79, p. 17. ]
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Thus, the Board quite justifiably found Mr. Marshall's contention out of time since he clearly was on notice concerning the requirements of 10 C.F.R.
$ 2.714 for late petitions.
V.
CONCLUSION i
For the reasons stated above, this Appeal Board should affirm the denial of Mr. Marshall's petition to intervene in the OM proceeding.
Respectfully submitted,
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William D. Paton Counsel for NRC Staff Dated at Bethesda, Maryland this 4th day of December, 1980 l
1_S/ In the OL proceeding, Mr. Marshall's contenton on soils was deemed the same as Mrs. Sinclair's contention 24.
Feb. 23, 1979 Special Prehearing Conference Order at p. 21.
That contention related to the suitability of the fill material used by the applicant under the diesel generator building. Order p. 8.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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CONSUMERS POWER COMPANY Docket Nos. 50-329-0M & 0:.
50-330-0M & OL s
(Midland Plant, Units 1 and 2)
CERTIFICATE OF SERVICE' I hereby certify that copies of "NRC STAFF BRIEF IN OPPOSITION T0 TETITIONER'S APPEAL FROM LICENSING BOARD'S ORDER DENYING PETITION TO INTERVENE" in the above-captioned proceeding have been served on the following by depod o in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 4th day of December, 1980.
- Richard S. Salzman, Chairm:m Frank J. Kelley Atomic Safety and Licensing Attorney General of the State Appeal Board Panel of Michigan U. S. Nuclear Regulatory Commission Steward H. Freeman Washington, D. C.
20555 Assistant Attorney General Gregory T. Taylor
- Dr. John H. Buck Assistant Attorney General.
Atomic Safety and Licensing Environmental Protection Division
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Appeal Board Panel 720 Law Building U. S. Nuclear Regulatory Commission Lansing, Michigan 48913 Washington, D. C.
20555 Myron M. Cherry, Esq.
- Ms. Christine N. Kohl 1 IBM Plaza Atomic Safety and Licensing Chicago, Illinois 60611 Appeal Board Panel U. S. Nuclear Regulatory Commission Ms. Mary Sinclair Washington, D. C.
20555 5711 Summerset Street 9""
- Lharles Bechhoefer, Esq.
Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Michael I. Miller, Esq.
Washington, D.C.
20555 Ronald G. Zamarin, Esq.
Alan S. Farnell, Es.
- Mr. Gustave A. Linenberger Isham, Lincoln & Be le Atomic Safety and Licensing Board One First National Plaza U. S. Nuclear Regulatory Commission 42nd Floor Washington, D.C.
20555 Chicago, Illinois 60603 Dr. Frederick P. Cowan i
6152 N. Verde Trail Apt. B-125 Boca Raton, Florida 33433 i
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Jam s E. Brunner, Esq.
- Atomic Safeity and Licensing Consu..ars Power Company
- Board Panel 212 tlest Michigan Avenue U. S. Nuclear Regulatory Commission Jackson, Michigan 49201 Washington, D. C.
20555 Ms. Barbara Stamiris
- Atomic Safety and Licensing Appeal 5795 N. River Board Panel Freeland, Michigan 48623 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Steve Gadler '
2120 Carter Avenue
- Docketing and Service Section St. Paul, Minnesota 55108 Office of the Secretary U. S. Nuclear Regulatory Comission Ucndell H. Marshall, Vice President Washington, D. C.
20555 l'.it ast Environmental Protection Assciates FFD 10 Midlad, Michigan 48640
!5. C ron K. Warren 636 1:illcrest Midicnd, Michigan 48640
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l (,)k%Ll William D. Paton Counsel for NRC Staff 4
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