ML20031C482
| ML20031C482 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 09/30/1981 |
| From: | Gallo J, Gibbs M CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8110070197 | |
| Download: ML20031C482 (17) | |
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d coCggED UNITED STATES OF AMERICA ygmo 5198
- I NUCLEAR REGULATORY COMMISSION
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-5 BEFORE THE COMMISSION OtSce %.
DerWQ In the Matter of
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Docket No. 50-155 (Confirmatory Orderghg l fpJ CONSUMERS POWER COMPANY (Big Rock Point Plant)
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RESPONSE OF CONSUMERS POWER COMPANY I
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TO REQUEST FOR A HEARING BY GM pty JoANN BIER, JIM MILLS 9 * "i$$,r#
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AND CHRISTA-MARIA x
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Consumers Power Company (" Consumers Power" or "Licent ee") hepehytd \\
answers the request for a hearing submitted to the Nuclear Regulatory Commission (the "NRC" or the " Commission") by JoAnn Bier, Jim Milla and Chriata-Maria (the " petitioners") in connection with a confirmatory order 2
issued in this docket.
For the reasons set forth below, the request for a hearing must be denied.
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IhTRODUCT20N On August 4, 1981, the Director of the Division of Licensing, Office of Nuclear Reactor Regulation, issued an order confirming Consumers Power's commitments to take certain actions at the Big Rock Point Plant in accordance with portions of NUREG--0737, " Clarification of TMI Action Plan Requirements."
On August 11, 1981, that order was published in the Federal Register (46 Fed.
Reg. 40746)..Section V of the order permitted "[a]ny person who has an interest affected by this Order" to request a hearing by September 10, 1981.
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JoAnn Bier, Jim Mills and Christa-Maria, by letter dated August 24, 5
1981, requested such a hecring on the order. The NRC Staff in turn referr,;d
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the hearing request to.the Commission for disposition in a Sepicmber 14, 1981
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pleading entitled "NFC Staff's Response to Request for a Hearing by JoAnn Bier,, Jim Mills, and Christa-Maria." Because petitioners had not established that there should be a hearing on the August 4, 1981 order as a matter of
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-1ght or as a matter of discretion, the NRC Staff recommended to the Commission that the request for a hearing be denied.
Consumers Power did not learn of petitioners' hearing request antil receipt of the NRC Staff's Responce on September 16,-1981.
Therefore, by i
letter dated September 18, 1981, to the Secretary of the Commission, one of Licensee's counsel moved that Consumers Power be given until September 30, O
1981,-to file a response to the hearing request.
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A II.
PETITIONERS ARE NOT ENTITLED TO A HL3 RING ON THIS CONFIRMATORY ORDER AS A MATTER 0" RIGHT The focal point of an; analysis of whether or not petitioners have a legal right to a hearing in this instance must be on the nature of the hearing s
a that petitionera are requesting, for it is indeed significant that what is at issue here is a confirmatory ordar.
This is not the more usual case of a petition to intervene in a construction permit or operating license proceeding. Rather, what is before the Commission is a request for a hearing on a very narrowly drawn confirmatory order, one which the License; has not contested and for which no hearing wili be held if this request is denied.
A special framework for legal analysis concerning hearing rights in this area has been developed recently, as several matters involving i
confirmatory and enforcement orders have come before the Commission and its subordinate tribunals. The case which established the overarching principles which must govern the decision in the matter at hand is Public S,ervice Company of Indiana (Marble Hill Nuclear Gesarating Station, Unite 1 and 2), CLI-80-10, i
11 NRC 438 (1980).
In passing upon a request for a hearing on an enforcement
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order, the Commir.sion looked to the well-established, two-prong test for I
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standing articulated in Portland, General Electric Company (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613 (1976):
First, one mu*t allege some injury that has occurred or probably will result from the action involved.
Under this f
" injury in fact test" a mere academic interest in a matter, I
without any real impact on the person asserting it, will not confer standing.
One must, in addition, allege an l
interect " arguably within the zone of interest" protected j
by the statute.
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i Based upon the effect of the order in question, and the issues which were litigable under the terms of that order, the Commission determined that the petitioners had failed to show how they would be injured by the order to halt safety-related construction at Marble Hill.
Thus, the petitioners lacked standing and their request for a hearing was denied.
The scope of issues which could properly be heard in a hearing on the Marble Hill order, a set forth in the order icself, weighed heavily in the Commission's conclusion that the petitioners' interests were not adversely i
cffected.
The order stated:
In the event a hearing is requested, the issues to be considered at such a hearing shall be:
(1) Whether the facts set furth in Peets II and III of this Order are true.
(2) Whether this Order should be sustained.
11 NRC at 440.
Because the thrust of the petitioner's argument in Marble Hill was that the enforcement order had not gone far enough, it was clear that the type of i
issues which the petitioners wanted to raise could not be litigated under the terms of the order.
After reviewing the applicable law, the Commission decided that the NRC was authorized, and it was reasonable, to limit enforcement proceedings to whether the facts as stated in an order are true and whether the remedy selected is supported by those facts.
11 NRC at 440-441.
As the Cotaission stated in summarizing its decision, the order conferred standing on parties i
claiming injury from the suspension of construction but not on partias whu asserted injury from the failure of the order to grant more extensive relief.
11 NRC at 442.
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9 The rationale of Marble Hill was next applied by the Commission to a case involving a confirmatory order, Wisconsin Electric Power Company (Point Beach tbclear Plant, Unit 1), CLI-80-38,12 NRC 547 (1980), in which petitioners had requested a hearing.
The Commission directed that an Atonic Safety and Licensing Board (" Licensing Board") be empanelled to determine whether, based on the principles enunciated in ihrble Hill, a hearing was required. Significantly, the Commission went on to state that, should a hearing be required, the issues which could be adjudicated were limited to those issges identified in the order.
The specificatien of issues in the Point Beach order was virtually identical to the specification in the Marble Hill order.
In carrying out the task assigned by the Commission, the Licensing Board concluded that the petition had not raised an issue within the scope of the order and therefore the request for a hearing mur.i be denied. Wisconsin
] Electric Power Company (Point Beach Inclear Plant, Unit 1), LBP-80-29, i
12 NP.C 581 (1990).
As in Marble Hill, the grievance of the petitioner in l
Point Beach wad not with the er.ture or effects of the remedies actually
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should have been inpesed.
The Licensing Board decided that the petitioner, by not putdng forth an issue within the scope of the order, had failed to raise a " specific aspect o:' the subject inatter of tha proceeding" as required by l
10 C.F.R. 5 2.714(a)(2).
The petitioner was thus dismicsed without the nececsity of the Licensing Board reaching the question of standing.
12 NRC at 588.
The principle set forth in Marble Hill and Point Beach, that an individual requesting a hearing pursuant to an NRC order must raise an issue j
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I squarely within the scope of issues identified by that order before a hearing will be granted as a matter of right, has also been applied by the Commission in the context of a show-cause proceeding.
In Houston Lighting and Power Company (South Texas Project, Units 1 and 2), CLI-80-32, 12 NRC 281 (1980),
petitioners sought a hearing on a show-cause order pertaining to safety-related construction activities.
The Commission, relying upon and referring to Marble Hill and Point Beach, held that the petitioners were not entitled to a hearing on the eaforcement order as a matter of right:
Like the complainants in those two cases, Citizens [the petitioners) are arguing that the remedy proposed by the Director is insufficient to protect the public health and safety.
Thus, it is not adversely affected by the Director's action inposir.3 increased regulation on Houston, but is rather aggrieved by the Director's failure to take stronger action.
Furthermore, by its very terms, the Order to Show Cause states that if a hearing is held, the issue to be conwidered would be "whether the licensee shall be required to take the actions specified in Section V(A) of thr.t order," and not whether other, more strigent action shoold also be required.
The cited cases have rejected a right to a hearing in these circumstances.
12 NRC at 289.
The common thread of the cases cited above,,that the question of whether a particular issue may be heard in a given proceeding must be resolved in accordance with ths terms of the order or notice of hearing which initiated the proceeding, reflects a settled principle which governs all of NRC pr actice.
For example, the Atomic Safety and Licensing Appeal Board (" Appeal Bo.nd") utilized this principle to affirm the denial of a petition to intervene in an early site raview proceeding in Commonwealth Edison Company (Carroll County Site), ALAB-601,12 NRC 18 (1980).
Because none of petitioners' contentions came within the scope of the issues identified in the notice of hearing and were thus not 1,itigable, the Appeal Board concluded that the outright denial of the petition was mandcted. * -
d Similarly, the Appeal Board affirmed the denial of two petitions to intervene in a construction permit extension proceeding because the petitioners attempted to raise an issue (site suitability) which did not fall within the scope of the notice of opportunity for hearing in Northern Indiana Public Service Company (Bailly Generating Statior, Nuclear 1), ALAB-619, 12 NRC 558 (1980).
Applying the precepts discussed above to the facts of the case at bar, it is readily apparent that petitioners request for a hearing is fatally defective in that it fails to set forth an issue which is litigable under the terms of the confirmatory order for Big Rock Point.
As the NRC Staff discusses in detail in its Response, the confirmatory order is cancerned with the implementation of certain measures, developed in the wake of the accident at Three Mile Island, which are designed to improve safety at nuclear power plants. The order issued to Consumers Power on August 4,1981, confirmed Licensee's commitment to meet those provisions of NUREG-0737 (the document which sets forth the TM1 action plan items for operating power plants) that were listed in an attachment to the order.
Consumers Power had previously made commitments to meet various proposed requirements of NUREG-0737 in submittals to the NRC dated December 31, 1980, February 18 and March 31, 1981.
The August 4 order directed Consumers Power to satisfy the requirements listed in the attachment to the order, prJmarily for implementation of a proposed action or submission of information, within 30 days of the date of the order.
The following portions of that order are pertinent to the consideration of petitioners' request for a hearing:
Any person who has an interest affected by this Order may request a hearing (by] September 10, 1981.
If a
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hearing is regoested by a person other than the licensee, that person shall describe, in accordance with 10 CFR 2.714(a)(2), the nature of the person's interest and the manner in which the interest is affected by this Order.
If a hearing is held concerning this Order, the issue to be considered at the hearing shall be whether, on the basis of the information set forth in Sections II and III of this Order, the licensee should comply with the conditions set forth in Section IV of this Order. 46 Fed. Reg. at 40746-7.
Licensee has not requested a hearing or otherwise contested the requirements imposed by the order, and has in fact already complied with the order. Thus, a hearing is required in connection with this order only if the Commission determines that petitioners have established a right to a hearing as a matter of law, and that determination could be made only if petitioners have raised an issue which may rrcperly be litigated under the terms of the order.
The task of determining whether or not the petitioners have raised a permissible issue is made somewhat difficult by the rather confused nature of petitioners' rhetoric. A fair appraisal of petitioners' August 24, 1981 letter, however, can only lead to the conclusion that petitioners misapprehend the nature and effert of the order and that what they truly desire is for the NRC to impose some additional, unspecified, requirements on Consumers Power which go far bayond the scope of the August 4,1981 order.
l The fact that petitioners do not appreciate the meaning of the order l
1s apparent from their use of the phrases " licensee relief from those [TMI]
requirements," "nndifications tor cost-benefit purposes," and "TMI-related deferrals sought by Consumers Power Company." Nothing in the order indicates that Consumers Power is seeking relief from or deferral of any TMI requirements, or is making any " modifications for cost-beaafit purposes." 1
g-Rather, the terms of the order issued by the NRC on August 4 impose definite requirements on Licensee. Licensee has not contested those requirements and has, indeed, already complied with the terms of the order.*
Because the conditions of the order as set forth in Section IV do not deal with relief from requirements, modifications or deferrals, it is by definition impossible for an issue concerning those subjects to be sabi to fall within the scope of the order.
The last two paragraphs of petitioners' letter discuss a " dual meltdown" and mention the health and safety of the surrounding community.
The only conclusion that Licensee can drsw from those statements is that petitioners are urging the NRC to take some additional measures concerning Dil-requirements which go beyond those mandated by the order.
That is exactly the sort of issue - the necessity of imposing additional requirements on the licensee - which was held to be outside the scope of the order and thus not litigable in a hearing on that order in the Marble Hill, Point Beach and South Texas Project cases.
As the Commission made clear in those decisions, the only issues which may be raised under an order are those that argue that the conditions imposed by the order were unjustified, i.e.,
that the order went i
too far.
Complaints that the requirements imposed by an order did not go far enough are simply not permitted.
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- While Consumers Power _ has not sought relief from or deferral of the obligations imposed in the August 4,1981 order and its attachment, it should be noted that Licensee has requested dererral of the imposition of certain of the NUREG-0737 guidelines. That request is based upon'a probabilistic risk assessment (PRA) conducted for the Big Rock Point Plant which demonstrates that certain of.the generic suggestions of NUREG-0737 are not appropriate for implementation at that facility. The NEC Staff is currently teviewing the PRA and has Licensee's request under advisement.
As stated above, however, and as the NRC Staff states in its Response at page 9, none of these matters are within the ambit of the instant ' confirmatory order which has triggered petitioners' request.for a hearing. 1
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9 Utilizing the rationale of Marble Hill, it follows from the fact that petitioners have not raised an issue within the scope of the order that they have not demonstrated " injury in fact" from the order, and that they, therefore, do not have standing to request a hearing as a matter of right.
11 KRC at 442, An alternate path to the same end is to say, as did the Licensing Board in Point Beach, supra, that the petitioner has failed to raise a specific aspect of the subject matter of the proceeding as required by 10 C.F.R. 5 2.714(a)(2), a requirement which persons requesting a hearing were directed to comply with in the August 4 order. Under this approach the request for a hearing is denied because of the failure to identify the " aspect of the subject matter," and it becomes unnecessary to address the question of standing per se,.
See also Dairyland Power Cooperative (La Crosse Boiling Water Reactor), LBP-80-26,12 NRC 367, 374 (1980).
Under either analysis, the 14:k=of s litigable issue renders consideration of such factors as the i
proximity cf the petitioners to the plant irrelevant.*
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- JoAnn Bier, Jim Mills, and Christa-Maria, petitioners here, are intervenors in the on-going operating license amendsent proceeding concerning l
modification of the spent fuel pool at the Big Rock Point Plant.
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III.
PETITIONERS SHOULD NOT BE GRAhTED A HEARING AS A MATTER OF DISCRETION In Marble Hill, supra, the Commission raised the possibility of granting a hearing as a matter of discretion in a case in which a petitioner has failed to show that he is entitled to a hearing as a matter of right.
No such discretionary hearing was ordered in that case because the petitioner had an alternative remedy available in the form of a request for action under 10 C.F.R. $ 2.206, and because the Commission could not see any useful purpose to be served by a public hearing.
11 NRC at 442-43.
The concept of a discretionary hearing was premised upon Pebble Springs, supra. However, it should be noted that Pebble Springs dealt only with the question of discretionary intervention in a construction permit proceeding - a situation in which the hearing would have been held even if no one had been given leave to intervene.
The idea of granting a hearing on a discretionary basis was not considered.
More recently, the Commission seems to have looked with disfavor upon the idea of holding a hearing on a discretionary basis when a confirmatory order is concerned.
In Foint Beach, CLI-80-38, supra, the Licensing board was not permitted to convene a hearing unless the petitioner had raised an issue which could be litigated under the order, nn order very similar to the one involved here.
The discretion to consider other factors in determining whether a hearing hsould be hei not l
given to the Licensing Board.
Even assuming that the question of a discretionary hearing should be considered, it is evident that a hearing should not be ordered as a matter of discretion in these circumstances.
First, no discernible, much less useful, purpose would be served by holding a hearing, as Consumers Power has already -
i consented to, and indeed, complied with, the terms of the August 4, 1981 order.
Therefore, no issues to be heard are apparent concerning that matter.
The only other possibilities would be to hold a hearing to inquire into whether Consumers Power may or may not seek relief from or deferral of TMI requirements in the future, or to investigate petitioners' concept of a " dual meltdown." Certainly such ill-defined and broad-ranging inquiries cannot be mandated or sanctioned by the Commission.
Second, the cases which discuss the concept of a discretio.ary hearing always place great emphasis on the existence of alternative remedies which may accomplish the petitioners' purpose as well as or better than a hearing on the order.
In Marble Hill, supra, and Bailly, supra, the availability of a petition under 6 2.206 was persuasive in denying a hearing under the order in question.
In South Texas Project, the availability of a Freedom of Information Act request and of discovery procedures in an on-going operating license proceeding argued against the grant of a discretionary hearing.
Similar remedies are available to petitioners here.
They could make a request for action under 5 2.206, or they could file a Freedom of Information Act request with the NRC concerning the aspects of the Big Rock Point Plant which concern them.
Therefore, because no purpose would~be served by conducting a hearing on the August 4,1981 order, and because other remedies are available to petitioners, the Commission should not exercise its discretion to grant j
petitioners a hearing.
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Conclusion Petitioners have failed to demonstrate that they are entitled to a hearing as a matter of.right and there are no factors warrenting the grant of a hearing as a matter of discretion. For these reasons, petitioners' request must be denied.
Respectfully submitted, 49 bh JDSF#H GALLO
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l MARTHA E. GIBTS Counsel for Consumers Power Comp?,y ISHAM, LINCOLN & BEALE L
112v Connecticut Avenue l
Suite 325
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Washington, D.C.
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ISHAM, LINCOLN & BEALE One First N tional Plaza a
Suite 4200 Chicago, IL 60603 Dated:
Septembe r 30, 1981 I
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e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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CONSUMERS POWER COMPANYsi-
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Docket' No. 50-155 a (Big Rock Point Plant)
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(Confirmatory Order)
NOTICE OF APPEARANCE Pursuant to Section 2.713 of the Rulca of Practice of the Nuclear Regulatory Commission, the following appearance is hereby entered on behalf of Consumers Power Company, 212 West, Michigan Avenue, Jackson, Michigan 49201, in the above-captioned. proceeding:-
Name Joseph Gallo Address Isham, Lincoln 4 Beale 1120 Connecticut ~ Avenue, N.W.
Suite 325 Washington, D.C.
20036 Telephone (202) 833-9730 Admissions
%preme Court of Minnesota Court of Appeals for the District of Columbia Circuit United States Supreme Court 1
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l Joseph Gallo 1
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One of the Attorneys for Consumers Power Company l
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Dated:
September 30, 1981 l
UNITED STATES OF AMERICA f)
NUCLEAR REGULATORY COMMISSION s
BEFORE THE COMMISSION In the Matter of
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CONSUMERS POWER COMPANY
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Docket' No. 50-155 (Big-Rock Point Plant)
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(Confirmatory Order).
NOTICE OF APPEARANCE Pursuant to Section 2.713 of the Rules of Practice of the Nuclear Regulatory Commission, the following appearance is hereby entered on behalf of Consumers Power Company, -212 West Michigan Avenue,-Jackaon, Michigan : 49201, '
in the above-captioned-proceeding:
Name Martha E. Gibbs Address "Isham, Lincoln &-Beale: o '.
One First National Plaza'-
- r Suite 4200 Chicago, OL 60603 Telephone (312) 558-7500 l
Admissions Supreme Court of Wisconsin Supreme Court of Illinois t-District Court for the North..:n District of Illinois
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MA i m i
" ' Marktfli E. Gibbs One of the Attorn s for Consumers Power Company l
Dated: September 30, 1981
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.g c UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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CONSUMERS POWER COMPANY ~
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Docket No. 50-155 (Big Rock Point. Plant)
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(Confirmatory Order)
DESIGNATION OF PERSONS UPON WHOM SERVICE SHALL BE MADE Consumers Power Company, pursuant to 10 C.F.R. 55 2.708(e) and 2.712(b), designatas the following persons to be served on its behalf with copies of all papers filed in the above-captioned proceeding:
Judd L. Bacon, Esq.
David P. Hoffman Consumers Power Company Nuclear Licensing Administrator 212 West Michigan Avenue Consumers Power Company Jackson, MI 49201 1946 W. Parnall Rd.
Jackson, MI 49201 Martha E. Gibbs, ' Esq."
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Joseph Gallo,,Esq G r.ti10, Fm.
Isham, Lincoln & Beale Isham, Lincoln & Beale One First National Plaza 1120 Connectictu Avenue Suite 4200 Suite 325 Chicago, IL 60603 Washington, D.C.
20036 L
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Martha E. Gibb /
One of the Attorneys for Consumers Power Company ISHAM, LINCOLN & BEALE Occ First National PD za Sitite 4200 Chicago, IL 60603 (312) 558-7500 Dated:
September 30, 1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISP 'Jr BEFORE THE COMMISSIOi.
In the !btter of i
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CONSUMERS POWER COMPANY-
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Docket No. 50-155 (Big Rock Point Plant)
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(Confirmatory Order)
CERITi2CATE OF SERVICE I hereby certify that copies of " RESPONSE OF CONSUMERS POWER Cc4FAW TO REQUEST FOR A HEARING BY JoANN SIER, JIM MILLS AND C3RISTA-MARIA," ".arICE OF APPEARANCE OF MARTHA E. GIBBS," " NOTICE OF APPEARANCE OF JOSEPH GALLO," and
" DESIGNATION OF PERSONS UPON WHOM SERVICE r9ALL BE MADE," in the above-captioned procteding' have been servd on the following persons by.
deposit in the u.S. Mail, first class, postage prepaid, this 30th day of September, 1981:
JoAnn Bier Docketing and Service 204 Clinton Attn:
Chase Stephens Charlevoix, MI 49720.
U.S. Nuclear Regulatory Commission Washington, D.C.
- 20555, Jim Mills Atomic Safety & Licensing Board Panel Christa-Maria U.S. Nuclear Regulatory Commission Rt. 2, Box 108C Washington', D.C.
20555 Charlevoix, MI 49710 David P. Hof fman Atomic Safety and Licensing Appeal Panel Nuclear Licensing Administrator U.S. Nuclear Re;;ulatory Commission Consumers Power Company Washington, D.C.
20555 1945 W. Parnall Rd.
Jackson, MI 49201 Stephen G. Burns, Esq.
Karen D. Cyr. Esq.
Judd L. Bacon, Esq.
U.S. Nuclear Regulatory Commission Consumers Power Company Washington, D.C.
20555 212 W. Michigan Ave.
Jackson, MI 49201 Samuel J. Chilk Secretary
.U.S.
Nuclear Regulatory Commiasion Washington, D.C.
20555 4
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Martha E. Gib One of the Atto aeys for Consumers Power Company
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