ML20009B201

Response in Opposition to Intervenor Requests for Ruling on Appropriate Time for Appeals on Discovery Rulings & Conference Call Rulings Which Deny Equal Rights to One Party in Proceeding.W/Certificate of Svc

ML20009B201
Person / Time
Site:	Midland
Issue date:	07/06/1981
From:	Farnell A CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8107150050
Download: ML20009B201 (9)

Text

' '

. o , cj I, g'% ll oocys to

1. $3d)qn "U w ustmo -

~ . 019BI ' 1~4

[ g 1,4 60 m '

UNITED STATES OF AMERICA -

'~

g NUCLEAR REGULATORY COMMISSION Of cgC) ygf g 9 Befo e Atomic Safety and Licensing Appeal Boa D -4

) .

In the Matter of )

)

CONSUMERS POWER COMPANY ) Docket Nos. 50-329-OM

) 50-330-OM (Midland Plant, Units 1 and 2) ) 50-329-OL

) (( 50-330-OL CONSUMERS POWER COMPANY RESPONSE IN OPPOSITION TO INTERVENOi; REQUESTS "FOR RULING ON APPROPRIATE TIME FOR APPEALS ON DISCOVERY RULINGS & CONFERENCE CALL RULINGS WHICH DENY EQUAL RIGHTS TO ONE PARTY IN THE PROCEEDING" AND " APPELLATE REVIEW CERTIFIED ON DIRECTION OF THE COMMISSION" Pursuant to 10 C.F.R. S2.730(c) Consumers Power Company (" Consumers Power") hereby submits its response in opposition to (1) Intervenor's Request for Ruling on Appro-priate Time for Appeals on Discovery Rulings & Conference Call Rulings Which Deny Equal Rights to One Party in the Proceeding (" Discovery Ruling Request") , and (2) Request for Appellate Review Certified on Direction of the Commission

(" Summary Disposition Appeal") .

I. Discovery Ruling Request Ms. Stamiris has requested the Appeal Board to answer certain " questions in the abstract," viz would the Appeal Board " entertain an interlocutory appeal on any or all of the following issues?" According to Ms. Stamiris' scheme, 8107150050 810706 PDR ADOCK 05000329 G PDR f[

5y

if the Appeal Board answers any of her abstract questions affirmatively she "will provide the appropriate supporting evidence" at the Board's request. None of the abstract questions referenced in Ms. Stamiris' Discovery Ruling Request warrant interlocutory review.

Ms. Stamiris is seeking an advisory opinion as to whether the Appeal Board would entertain an interlocutory appeal on certain abstract discovery questions. The Appeal Board is "not in the business of deciding abstract questions."

See, Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-419, 6 NRC 3, 6 (1977).

Advisory opinions are not favored by the Appeal Board and will not be rendered in the absence of the most compelling cause. Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 54-55 (1978), remanded other grounds, State of Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979).

I Further, Section 2.730(f) grants Appeal Boards discretionary authority to review interlocutory orders only when " prompt decision is necessary to prevent detriment to the public interest or unusual delay." 10 C.F.R. S2.730(f).

This authority is reserved for exceptional and important l

l issues: discovery rulings, such as the ones referenced in Ms. Stamiris' motion, are generally not candidates for its exercise. See, Consumers Power Company (Midland Plant, l Units 1 and 2), ALAB-439, 6 NRC 638 (1977).

' The Appeal Board clarified the criteria governing i

referral in Public Service Company of Indiana (Marble Hill i

l

Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977). There, in declining to accept appellate review of a Licensing Board's Order, it held:

Almost without an exception in recent times, we

[the Appeal Board] have undertaken discretionary interlocutory review only where the ruling below (1) threatened the party with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner. Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 119.0, 1192 (1977) (footnote omitted).

Applying these criteria to the circumstances of this case, it is clear that interlocutory appeal of the discovery " issues" raised in Ms. Stamiris' Discovery Ruling Request must be denied. The Licensing Board's discovery rulings neither affect the basic structure nor jeopardize the conduct of the proceeding below.

Most importantly, however, the Licensing Board's rulings do not threaten Ms. Stamiris "with immediate and seriour.

irreparable harm which, as a practicable matter, could not be alleviated by a later appeal." Marble Hill at 1192.

Extensive discovery has been engaged in by all parties to this proceeding, including Intervenor. Discovery must be terminated sometime prior to hearing. The decision to terminate discovery, as all questions about the proper scope of discovery, is l firmly within the discretionary authority of the Licensing Board and appellate review of such rulings is best conducted at the end of the proceeding.

II. dummary Disposition Appeal on April 21, 1981, Ms. Stamiris filed a motion for summary disposition in which she sought to preclude consi-deration in the proceeding below of " plans and promises" by Consumers Power with respect to Consumers Power's future quality assurance program. Ms. Stamiris contended that future quality assurance performance can be best predicted on the basis of past performance, and that Consumers Power's

" promises, commitments, i:.itentions , and plans for the future regarding Quality Assurance, does not constitute genuine issues to be heard in this soil settlement proceeding."

After reviewing Ms. Stamiris' motion, the Licensing Board agreed with both the NRC Staff and Consumers Power that "Ms. Stamirls' motion cannot be considered as a motion for summary disposition. It does not establish the absence of a genuine issue of material fact; indeed, on its face, it recognizes differences between her position and that of CPC. That being so, the summary disposition requirements of 10 C.F.R. S2.749 have not beer. satisfied." Ms. Stamiris' motion is therefore denied." (emphasis added)

There is a general proscription against interlocutory appeals. 10 C.F.R. S2.730(f). The single exception to this proscription is set forth in 10 C.F.R. S2.714a, which allows an interlocutory challenge only to the grant or the total denial of an intervention petition. Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit No. 1) , ALAB-4 00, 5 NRC 1175, 1177 (1977). "That an order declining a notion for summary disposition (or judgment) is interlocutory cannot, of course, be disputed." Accordingly, denial of Ms.

Stamirls' motion for summary disposition cannot be the subject for appeal. Louisville Power and Light company (Waterford Steam Electric Generating Station, Unit 3),

ALAB-200, 6 AEC 93, 94 (1974). ,

Additionally, the Licensing Board's ruling refusing to exclude evidence from the proceeding below does not warrant exercise of the Appeal Board's discretionary authority to review interlocutory orders pursuant to 10 C.F.R. S2.730(f).

As noted above, Appeal Boards have taken interlocutory review only where the Licensing Board's ruling (1) threatens the party below with immediate and serious irreparable harm which, as a practical matter, could not be alleviated by a later appeal or (2) affects the basic structure of the proceed-ing in a pervasive or unusual manner. Public service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).

The Licensing Board's refusal to exclude certain evidence from consideration will not affect the basic structure i

of this proceeding. The issues to be adjudicated remain the l

same, and the extent to which Ms. Stamiris may participate in this proceeding has not been altered. Indeed, contrary to l Ms. Stamiris' assertions, denial of her motion to excluda l

l certain evidence will guarantee that all relevant information j will be evaluated by the Licensing Board.

...- _ _.-_._ ~ _

_ _ _ _ . _ _ _ . _.__._. , , _ _ - . _~.___ _.._. _

More importantly, however, the Licensing Board's ruling does not threaten Ms. Stamiris "with immediate and irreparable impact which, as a nractical matter, could not be alleviated" at a later stage. In fact, Ms. Stamiris' request to exclude evidence, as the Licensing Board recognized, was premature. Ms. Stamiris is provided ar. opportunity to submit evidentiary motions at an appropria*_e time in the proceeding before the Licensing Board.

i Accordingly, Ms. Stamiris' request for interlocutory l review of the Licensing Board's ruling denying her motion for summary disposition must be denied.

Ms. Stamiris has also sought, at page 4, "l) an appellate definition on acceptable evidence; 2) a ruling that past QA performance (prior to December 6, 1979) must be fully considered in the final ' reasonable assurance' judgment; and

3) an appellate decision on the weight accorded the evidence allowed." Each of these requests is in the nature of an advisory opinion, and, as noted above, should not be rendered in the absence of the most compelling cause. Ms. Stamiris has made no such showing. Indeed, the questions Ms. Stamiris desires to raise before the Appeal Board relate to matters appropriately within the province of the Licensing Board.

III. Conclusion For the aforementioned reasons, Consumers Power (1) objects to both Ms. Stamiris' Discovery Ruling Request and Summary Disposition Appeal and (2) moves for the above noted motions' denial.

Respectfully submitted,

///4, S,ed One of the Attorneys 8for

/, ,e F:n

[/

Consumers Power Company ISHAM, LINCOLN & DEALE Suite 4200 One First National Plaza Chicago, Illinois 60603 i

l t

4 l

, - . . . - , . . - - - - . . . , _ .,_,---.-..,-......,,.,-n,,,,,_-.-.,.- _ . . . . - , . . , , . . , , - , , , , , . . , , . .

4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board

)

In the Matter of )

)

CONSUMERS POWER COMPANY ) Docket Nos. 50-329-OM

) 50-330-OM (Midland Plant, Units 1 and 2) ) 50-329-OL

) 50-330-OL

)

4 f

CERTIFICATE OF SERVICE I, Alan S. Farnell, hereby certify that a copy of CONSUMERS POWER COMPANY RESPONSE IN OPPOSITION TO INTERVENOR REQUESTS "FOR RULING ON APPROPRIATE TIME FOR APPEALS ON DISCOVERY RULINGS & CONFERENCE CALL RULINGS WHICH DENY EQUAL RIGHTS TO ONE PARTY IN THE PROCEEDING" AND " APPELLATE REVIEW CERTIFIED ON DIRECTION OF THE COMMISSION" was served upon all persons shown in the attached service list by deposit in the United States mail, first class, this 6th day of July, 1981. The copies to Mr. Salzman, Dr. Buck and Ms. Kohl were sent Federal Express.

t

/IP

< J.vidb 1 hS/ ?3/)

Alan S. Farnell ( // /

i i

i 4

s.r,-. - r, - - -.-u. - , - - - - g e -,, ,, , - ,,-, ,--.,-e,, - - . . , _ , , , ---.,-n v.,w n..wos,n. --e s.,~ny.-

SERVICE LIST _

Frunk J. Kelley, Esq. Steve Galdler, Esq.

Attorney General of the 2120 Carter Avenue State of Michigan St. Paul, Minnesota 55108 Carole Steinberg, Esq.

Assistant Attorney General Atomic Safety & Licensing Appeal Pnl.

Environmental Protection Div. U.S. Nuclear Regulatory-Commission 720 Law Building Washington, D.C. 20555 Lansing, Michigan 48913 Mr. C. R. Stephens Myron M. Cherry, Esq. Chief, Docketing & Service Section One IBM Plaza Office of the Secretary Suite 4501 U.S. Nuclear Regulatory Commission Chicago, Illinois 60611 Washington, D.C. 20555 Mr. Wendell H. Marshall Ms. Mary Sinclair RFD 10 5711 Summerset Street Midland, Michigan 48640 Midland, Michigan 48640 Charles Bechhoefer, Esq. William D. Paton, Esq.

Atomic Safety & Licensing Bd. Pnl. Counsel for the NRC Staff U.S. Nuclear Regulatory Com. U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Frederick P. Cowan Atomic Safety & Licensing Bd. Panel 6152 N. Verde Trail U.S. Nuclear Regulatory Commission Apt. B-125 Washington, D.C. 20555 Boca Raton, Florida 33433 Barbara Stamiris Admin. Judge Ralph S. Decker 5795 North River Road Route No. 4, box 190D Route 3 Cambridge, Maryland 21613 Freeland, Michigan 48623 Carroll E. Mahaney Mr. Richard Salzman Babcock & Wilcox U.S. Nuclear Regulatory Commission P. O. Box 1260 Washington, D.C. 20555 Lynchburg, Virginia 24505 Dr. John Buck James E. Brunner, Esq. U.S. Nuclear Regulatory Commission ConJumers Power Company Washington, D.C. 20555 212 West Michigan Avenue Jackson, Michigan 49201 Ms. Christine Kohl U.S. Nuclear Regulatory Commission Washington, D.C. 20555 L _ _ _ _ _ _ _ _ __ _ __ ~ . ~ .