ML19344A253

Util Answer to Wh Marshall Petition for Leave to Intervene on Behalf of Mapleton Intervenors.No Evidence Shown That Participation Would Assist in Developing Sound Record. Petition Should Be Denied.Certificate of Svc Encl

ML19344A253
Person / Time
Site:	Midland
Issue date:	09/28/1978
From:	Gibbs M, Mark Miller CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8008070631
Download: ML19344A253 (23)

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h5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION C

Before the Atomic Safety And Licensing Board 4

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In the Matter of )-

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CONSUMERS POWER' COMPANY ) Docket Nos. 50-329

)30-330 (Midland Plant, Units 1 and 2)- )

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ANSWER OF CONSUMERS POWER COMPANY TO PETITION FOR LEAVE TO INTERVENE OF WENDELL H. MARSHALL

ON BEHALF OF THE MAPLETON INTERVENORS l

- Consumers Power Company (" Consumers Power" or

" Licensee"), pursuant to the Rules of Practice of the Nuclear Regulatory Commission (the "NRC" or the " Commission") ,

hereby answers the late-filed petition of Wendell H. Marshall on behalf of the Mapleton Intervenors for leave to intervene l

in the operating license proceeding for the Midland Plant,  !

Units 1 and 2. For the reasons explained below, both Mr.

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. Marshall and the Mapleton Intervenors must be denied leave to intervene in this proceeding.

l I. INTRODUCTION By a letter addressed to the NRC* Wendell H.

Marshall. sought leave to intervene in the operating license Page11 of Mr. Marshall's letter is dated. September 8,.

1978; page 2 iafdated' September 6, 1978. However, the '

envelope is' postmarked September 13, 1978, which is the date

- Consumers Power assumed as the time of filing for the purpose of calculating the day on which Licensee's Answer was due.

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proceeding for the Midland Plant on behalf of the Mapleton Intervenors; Mr. Marshall represented that he was the Presi- o dent of that organization. Because the letter was filed with the Commission more than three months af ter the June 5, 1978 deadline for petitions for leave to intervene specified in the Federal Register notice related to the Midland Plant proceeding (43 Fed. eg. 19304), this Atomic Safety and Licensing Board (" Licensing Board") must rule on the petition in accordance with the requirements specified in 10 C.F.R.

52. 714 (a) (1) (1-v) pertaining to nontimely filings, in addition to-the traditional standards delineated in other portions of S2.714.

In evaluating the Mapleton Intervenors' petition i

i consumers Power will first discuss whether Mr. Marshall's letter meets the basic test-for granting intervention out-l lined in S2.714 (a) (2) :

l l The petition shall set forth with particu-l larity the interest of the petitioner in the l proceeding, how that interest may be affected by the results of the proceeding, including why

• petitioner should be permitted to intervene, t

with particular reference to the factors in paragraph (d) of this section, and the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to j intervene.*

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• The paragraph (d) referred to above enumerates the following factors:

(1) The nature of the petitioner's right under the Act to be made a party to the proceeding. l (2).The nature and extent of'the petitioner's prop-l

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erty, financial,Jor other interest in the proceeding.

(3)'The possible_effect of any' order which may be .

entered in the proceeding on the petitioner's interest.  ;

10 C.F.R. 52. 714 (d) . i 1

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' j As the second step in determining whether interven-tion should be granted in this-instance, Licensee will o evaluate fivel specific items which are relevant in the case of.a~ late-filed petition.

II. THE PETITION FAILS TO MEET THE-REQUIREMENTS FOR INTERVENTION The first area in which the Mapleton Intervenors fail to comply with NRC procedure for intervention concerns the fundamental requirement that the petitioner adequately identify itself. The letter merely mentions the "Mapleton Intervenors" without describing in any way what type of organization it is,-its purposes or its members. Rather,

(- .the petition contains only the vague statement that.the l

L members of the Mapleton Intervenors live in the general i

vicinity of the Midland Plant. In addition, Mr. Marshall

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calls himself the President of the Mapleton Intervenors but i l does not indicate that he is authorized to. represent the l l

members, whoever they may be, in this proceeding. The only 1 1

member besides Mr. Marshall who is-mentioned in the petition is Steve..J. Gadler, who is referred to as the Executive i . .

l -Secretary. 'The letter does not indicate that Mr. Gadler joina'in the request to intervene, however.

Consumers l Power's objections-to the adequacy of 1

this1 petition 'with respect to the identification of the

'Mapleton.Intervenors are virtually identical to the objec-tions' Licensee raised with regard to the intervention

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l petition'of the Saginaw Valley Nuclear Study Group ("Saginaw")

previously filed in.this proceeding. In that instance this o

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Licensing Board denied admission to Saginaw on the ground that'the petition' presented-insufficient information with respect to the identity and interest of the organization; the member of the group identified in the' petition, Mary Sinclair, was admitted individually as a party. Saginaw was given an opportunity to-demonstrate its eligibility to be admitted as a party prior to the special prehearing confer-ence. - (Licensing Board Order at 10)

Consumers Power believes that the Mapleton Inter-venors should similarly be denied admission as a party; this conclusion is reinforced by the fact that this petition is even more defective than was the petition to intervene submitted by Saginaw.

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As NRC cases discussing standing to~ intervene make t

clear, an organization can represent only its own members.*

Thus,.it becomes essential to know the identity of those r

members'whom the Mapleton Intervenors purport to represent.

l' Furthermore, not only must the identity of-the members of L

i the organization whose interest may be affected and how such l' interest may be affected be shown, but there must also be a l

l -showing that the individual who signed the petition has been duly authorized to represent the petitioner and that the Long Island Lighting-Co. (Shoreham Nuclear Power Station, Unit 1), LBP-77-ll, 5 NRC 481, 483 (1977). -

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. members 1either requested or consented to be represented by

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c thel petitioner.in this-proceeding.*

Furthermore,1the Mapleton Intervenors cannot. rely

.upon the' fact 1that they participated in the construction' permit proceeding .for the Midland Plant as a -justification -

for being admitted as a party in the operating license proceeding. NRC case law holds that participation in a prior-licensing proceeding involving the same-facility does not adequately establish petitioner's interest in subsequent proceedings.** It should be remembered, too, that there has been no showing that the Mapleton Intervenors, an unincorpo-rated association, now include the same people who intervened years-ago.

Asfwas the case with the Saginaw petition, the letter.in question appears to be more the personal petition to intervene of Wendell H..' Marshall than that of the Mapleton

.Intervenors. Thus, Consumers. Power believes it is appropri-ate-to' consider the petition in that light. Viewed as the request to intervene of-Mr. Marshall alone, however, the petition is still defective. Although Mr. Marshall does state:that he lives:approximately one-and-a-half miles from the nuclear plant, and one may discern.from the' petition that he has; interests which fulfill the requirements of Allied-General-Nuclear Services (Barnwell Fuel' Receiving

-and Storage. Station),-LBP-75-60, 2 NRC 687, 690 (1975),

1 affirmed, . ALAB-328, E 3 NRC. 420 (1976) .

'** . Philadelphia ~ Electric Co. (Peach Bottom Atomic Power Station, : Units 2: and 3) , ..LBP-75-22, 1 NRC 451, 455 (1975).

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52.714(d), the- f acts are hardly set forth with the particu-larity demanded by the intervention rules. See 52.714 (a) (2) . c

-Furthermore,.under the revised rules regarding intervention a petitioner must specify the aspect or aspects lof the subject matter of the proceeding as to which he

-wishes to intervene; contentions are not required to be L .

filed with the petition. Although Mr. Marshall indicates several aspects of the proceedings in which he is interested, a cursory examination of the subjects listed in the ' petition .

as items one through nine demonstrates that' these subjects are buc a restatement of the issues raised by the Mapleton Intervenora at the construc' tion permit hearings. While this j Licensing Board indicated in its August 14, 1978. Memorandum and Order that it would be premature at this stage to rule on the adequacy of these " aspects of the subject matter" as issues in controversy (Licensing Board Order at 6) , Consumers Power is compelled to point out that NRC cases make clear i 1

that "an operating license proceeding should not be utilized .;

to rehash issues already, ventilated and resolved.at the con- l struction permit stage." Alabama Power Company (Joseph M.

Farley Nuclear Plant,-Units.1 and 2), CLI-74-12, 7 AEC 203 l j (1974). Mr. Marshall has not even hinted at the existence i l

l of any changed circumstances or other special reasons which would justify relitigating these issues. Therefore, Consumers

~ Power.will'strongly object to admitting into this proceeding as contentions matters related to the " aspects of the subject

. matter" set forth in Mr. Marshall's petition.

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r-III. 'THE PETITION DOES NOT MEET THE STANDARDS FOR NONTIMELY 'ILINGS

.The Commission's Rules of Practice provideLthat nontimely filings will not be entertained absent a determin-ation by the Licensing Board-that the petition should be

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granted based upon.a balancing of five specified factors in addition to the normal requirements for-intervention. A balancing of those five factors demonstrates that the peti-tion to intervene should not be granted, whether it is considered that of Mr. Marshall or of the the Mapleton Intervenors.

A. Good Cause, If Any, For Failure To File On Time Mr. Marshall has not alleged any facts which show good cause (or any cause) for his failure to file- the peti-tion on time. As the petitioner.has participated.in previous Commission proceedings, he must be presumed to be familiar with NRC rules'and procedures. Furthermore, in his letter, Mr. Marshall specifically referred to the Federal Register notice which explained the meudod of intervening in the operating license proceeding and stated that petitions a should be filed by June 5, 1978. In any event, federal law

. provides that Federal Register notice consti. 2tes actual notice to all persons whether or not such notice is actually seen. 44 U.S.C. 51508.

The-Mapleton Intervenors were not inadvertently left'off'the. service list for the operating license proceeding i

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-as-Mr. Marshall ~ states;in his petition. There was no " service list"_for this proceeding at the: time the Federal Register c

notice appeared. Furthermore, as the letter makes clear that the petitioner knew he was not being represented by Mr.

. Cherry in the operating license proceeding, there is no excuse for the petition being filed three months late.

Similarly, Mr. Marshall's statements with respect to what happened in a Court of Appeals-case concerning the Midland

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Plant has no relevance to the matter at hand and does not furnish an excuse for filing the petition out of time.

B. Availability of Other Means Whereby' Petitioner's Interest Will Be-Protected Censumers Power is not aware of-any_means other than this p?:oceeding whereby petitioner's interests will be protected. However, this is not enough to outweigh the three other factors which are adverse to the admission of Mr. Marshall (or the Mapleton'Intervenors) as a party. C f,.

Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-_431, 6 NRC 460 (1977); Public Service Electric and- -

Gas Company - (Hope Creek Generating Station, Units 1 and 2) ,

LBP-77-9, 5 NRC 474 (1977).

C. Extent To Which Petitioner's Participation May Reasonably Be Expected To Assist-In Developing A Sound Record  !

liothing in Mr. Marshall's petition indicates that either'he or the Mapleton Intervenors possess any expertise at all-in relevant areas or would bring in experts who could e

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P be of: assistance-in exploring.the technical environmental and :safccy issues' which may arise in the proceedings. Thus ,-

there in absolutely no evidence to even remotely suggest  ;

~t hat granting ~the; petition to intervene would materially contribute to the development of an improved evidentiary .

record in~_this proceeding. This factor has been relied on heavily by NRC tribunalsLin denying untimely petitions.-

Duke- Power- Company (Cherokee Nuclear Station, Units 1, 2 and

' 3 ) , c ALAB- 4 4 0 , 6-NRC 642 (1977); ~ Perkins Nuclear Station, ALAB-431, supra; Hope Creek Generating Station, LBP-77-9, supra.

D. Extent To Which The Petitioner's Interest Will Be Represented _By

-Existing Parties In the instant proceeding there are at-least three i.

entities.which can adequately represent Mr. Marshall's (or the Mapleton Intervenors') interest in the operating license l proceedings.- First, as stated by one licensing board,

"[t]he NRC Staff- represents the interests of 'the public in ,.

this-and:all NRC proceedings." Jersey Central Power & Light 4 Company-(Oyster Creek Nuclear Generating Station), LBP-77-58, 6 NRC-500 (1977 );. Second, Mary Sinclair has been admitted i-as'a party.to this proceeding and appears to have the same

-type of environmec -3.and safety concerns about the nuclear-1 fac'1 ty asadoes. petitioner. The presence of another party with similar11nterests was'an important factor in denying a late-filed petitionlin Perkins Nuclear Station, ALAB-431, .

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supra.- Third, the State of Michigan has been admitted as an 2 interested state pursuant to S2.715 (c) ; the Attorney General e of-Michigan has expressed a.special interest in environmental issues and is certainly_ qualified to represent the interest of petitioner as well as that of the citizens of Michigan in general.

4 E. Extent To Which The Petitioner's Participation Will- Broaden The <

Issues Or Delay The Proceeding

! As tMe issues in _this proceeding have not yet been delineated and no schedule for hearings has been adopted, the admission of petitioner would not be detrimental in those respects.

A balancing of the factors listed above weighc heavily.in favor of denying admission as a party to Mr.

Marshall and the Mapleton Intervenors. Not only has no cause been shown for the failure to file on time, but there is no evidence that petitioner's participation would assist in_ developing a sound record. Furthermore, any interest petitioner has in this proceeding will be adequately'repre-sented by two existing parties and the State of Michigan as a participant. In striking the balance it should' also be kept in mind that the petition is defectiv.. under the NRC's requiremer.ts for intervention as demonstrated in Section II, above.

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IV. CONCLUSION For the' reasons set-forth above, the Mapleton

Intervenors and Mr.' Marshall should be denied permission to intervene in_this proceeding.

Respectfully submitted, i

Ii L Michael I.

- i Miller i

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Martha E. Gibbs Counsel for CONSUMERS POWER COMPANY ISHAM, LINCOLN & BEALE Suite 4200 One First National Plaza L Chicago, Illinois 60603 l

l (312) 786-7500 September 28, 1978. ]

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UNITED STATES OF AMERICA

NUCLEAR REGULATORY COMMISSION m

Before the Atomic Safety and Licensing Board

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In the: Matter _Of- )

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CONSUMERS POWER COMPANY ) Docket Nos. 50-329

}- 50-330-(Midland Plant, Units 1 and-2) )

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CERTIFICATE OF SERVICE I hereby certify that copies of " Answer of Consumers

-Power Company To Petition For Leave To Intervene of Wendell H.

Marshall On Behalf of The Mapleton.Intervenors" in the I .

I above-captioned proceeding-have been served upon the following i

( parties by United. States Mail, first class postage prepaid, this 28th day of September, 1978:

l Ivan W. Smith,.Esq. Ms. Mary Sinclair Atomic Safety-and Licensing Board 5711 Summerset Street U.S.' Nuclear Regulatory Commission Midland,. Michigan 48640 .,

Washington, D.C. 20555 '

Colleen P. Woodhead, Esq.

l Mr. Lester Kornblith,'Jr. Counsel for the ' NRC Staff L Atomic Safety and Licensing' Board U.S. Nuclear Regulatory-l~

U.S. Nuclear Regulatory' Commission Commission '

Washington, _D. C. 20555 Washington, D. C. 20555 Ihr. Frederick P. Cowan Atomic Safety and Licensing 6152-N. Verde Trail Board Panel Apt.zB-125 U.S. Nuclear Regulatory

-Boca Raton,-Florida- 33433 Commission Washington, D. C. 20555 Mr.1Wendell H. Marshall Route 2 Midland,-Michigan 48640 des %a .e t w

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Q Frank J. Kelley, Esq. ~ Atomic Safety and Licensing Attorney-General of the- Appeal Panel State of. Michigan- U.S._ Nuclear Regulatory c Stewart H. Freeman, Esq. Commission -

Assistant Attorney General Washington, D. C. 20555 Gregory T.-Taylor, Esq.

Assistant ~ Attorney General . Mr. C. R. Stephens Environmental Protection Division Chief,. Docketing and 720 Law Building Service Section

. Lansing, Michigan 48913. Office of the Secretary U.S . Nuc ear Regulatory Myron M. Cherry, Esq. Commission 1 IBM Plaza . Washington, D. C. 20555 Suite 4501

Chicago, Illinois 60611-

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Martha E. Gibbs One of the Attorneys for CONSUMERS POWER COMPANY ISHAM, LINCOLN & BEALE One'First National Plaza' Suite 4200 Chicago,-Illinois 60603 (312).786-7500 September 28,.1978. .l l

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