ML20040F444
| ML20040F444 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 02/05/1982 |
| From: | Gallo J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA, NUDOCS 8202090204 | |
| Download: ML20040F444 (7) | |
Text
4 2/5/82 000XET'D f
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UNITED STATES.4)F pp(EAIC43.n /-
NUCLEAR REGULATORY ' COMMISSION p? ICE ~..
7 N
BEFORE THE ATOMIC SAFETY AND; LICENSING BOARD In the Matter of
)
} Docket No. 50-155-OLA CONSUMERS POWER COMPANY
) (Spent Fuel Pool
)
Modification)
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m, ck Point Nuclear Power Plant)
)
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[k FE3 gg y MOTION TO STRIKE
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qs Consumers Power Company
(" Licensee") hereby moves
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tomic Safety and Licensing Board
(" Licensing Board") to enter an order striking from the docket in this proceeding the writing of Dr. Michio Kaku.
This writing was enclosed with the January 28, 1982, letter of Mr. Herbert Semmel, Counsel i
for Ms. Christa-Maria, Jim Mills, and Joanne Bier
(" Inter-venors").1 l
~1/
An unsigned letter from Mr. Glen A.
Hendrix was also-attached to Mr. Semmel's letter.
This unsigned writing would also be subject to the instant motion but for the fact that a verified copy of Mr. Hendrix's letter was enclosed with the February 1, 1982, filing of Mr. John O'Neill.
Licensee's position with respect to the verified letter of Mr. Hendrix will be considered in connection with Mr. O'Neill's late filing.
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g PDR L
. In support of the motion, Licensee states:
1.
The January 28, 1982, filing of Mr. Semmel is beyond the January 25 deadline established by the Licensing Board's Order of December 11, 1981,SI and good cause has not been demonstrated by Intervenors to excuse the late filing.SI Intervenors made no attempt to explain the reasons why a proper affidavit could not be obtained from Dr. Kaku and served by the January 25 deadline.S Mr. Semmel does observe
-2/
See Order entitled " (Setting Final Schedule for Filing Prefiled and Responses to Summary Disposition)."
-3/
Mr. Semmel advised counsel for Licensee on either January 24 or 25 that he was encountering some difficulty in effecting delivery of his reply in opposition to the motions for summary disposition and supplemental testi-many.
Mr. Semmel stated that delivery would occur on either January 25 or, at the latest, January 26.
Mr.
Semmel also indicated that he understood that an affi-davit from Dr. Kaku was being sent to him by Ms. Christa-Maria, but that he had not yet received the document.
Counsel for Licensee acquiesced in the late delivery of Mr. Semmel's January 25 filing which was, in fact, re-ceived on January 26.
However, Licensee's counsel did not acquiesce in the matter of further late-filed materi als.
-4/
Intervenors' counsel attempts to excuse the lack of a notarized signature on the ground of "a misunderstanding on legal technicalities" by a layperson.
It is Licen-see's judgment that Ms. Christa-Maria, Mr. Mills, and Ms.
Bier, in the two years they have spent opposing the pending application for license amendment, have become wise and informed with respect to the procedural
. l that Ms. Christa-Maria called Chief Judge Bloch to advise him that Dr. Kaku's statement was still undergoing preparation.
However, it is not clear what should be made of this seemingly ex, parte contact.
In any event, no order has issued granting Intervenors additional time beyond the January 25 deadline.
2.
The delay to the proceeding does not end with Mr. Semmel's January 28, 1982, filing.
The writing has been sent to Dr. Kaku to be notarized.
Intervenors do not state when they expect to file this additional paper.
Apparently, Intervenors expect the ruling on the motions for summary disposition to be held in abeyance for some undefined period of time until the notarized statement is received.
Hence, Mr.
Semmel is, in fact, requesting an indefinite stay on the Licensing Board's ruling of the long pending motions-for summary disposition.
This type of piece-meal and insidious l
delay should not be countenanced.
Indeed, Licensee had hoped l
that further delays in this case would have abated as a result l
of the Licensing Board's admonition that " failure to file on
{
l requirements of the Nuclear Regulatory Commission, includ-l
(
ing the need for attesting to or verifying affidavits.
Indeed, the affidavits filed by Licensee and NRC Staff in I
support of the motions for summary disposition serve as splendid guidance to Intervenors.
i l
. time may result in the Board's deciding the pending issues only on the basis of the timely-filed papers, or dismissing the issues on which no timely responses or testimony have been filed for failure to file, without considering the merits."5/
3.
The Licensee is being prejudiced by the continuous delays in this proceeding.
Full-core discharge capability.will be lost after the refueling operation, which is presently underway, has been completed.
The lack of this capability could jeopardize continued operation of the Big Rock Point Plant.5 Indeed, this prospect prompted Licensee to make the extraordinary suggestion that the Licensing Board be reconstituted.1/
In these circumstances, the open-ended delay stemming from Intervenors' January 28 filing should not, be permitted.
For the foregoing reasons, Licensee's Motion to Strike the writing of Dr. Michio Kaku should be granted, and consistent with the above-quoted warning from the Licensing 5/
Licensing Board's December 11 Order, p.
2.
6/
See Affidavit of A.
Davis Mullholand, Jr., which is
~
attached as Exhibit 1 to Licensee's Motion For Expedited Ruling.
7/
Motion For Expedited Ruling, p.
4.
~
. Board, the pending motions for summary disposition should'be decided without reference to any late-filed writing from Dr.
Kaku.
Respectfully submitted, G-a $ AN Jog /hGfilo '
O W of tne Attorneys for Consumers Power Company ISHAM, LINCOLN & BEALE Suite 840 1120 Connecticut Avenue.-N.W.
Washington, D.
C.
20036 (202) 833-9730 4
Dated:
February 5, 1982 i
~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
) Docket No. 50-155-OLA CONSUMERS POWER COMPANY.
) (Spent Fuel Pool
)
Modification)
(Big Rock Point Nuclear Power Plant)
)
CERTIFICATE OF SERVICE I hereby certify that copies of MOTION TO STRIKE were hand-delivered to Judge Bloch, Judge Paris, Judge Shon, Herbert Semmel, and Janice Moore, and were served on the other persons listed below bs-deposit in the United States mail, first-class postage prepaid, this 5th day:of February, 1982.
Peter B.
Bloch, Esquire Atomic Safety and Licensing Administrative Judge Board Panel Atomic Safety and Licensing U.
S. Nuclear Regulatory Board Panel Commission U.
S. Nuclear Regulatory Washington, D.
C.
20555 Commission Washington, D.
C.
20555 Atomic Safety and Licensing Appeal Board Panel Dr. Oscar H. Paris U.
S. Nuclear Regulatory Administrative Judge Commission Atomic Safety and Licensing Washington, D.
C.
20555 Board Panel
' U.
S. Nuclear Regulatory Docketing and Service Section i
Commission Office of the Se cretary Washington, D.
C.
20555 U.
S. Nuclear Regulatory Commission Mr. Frederick J.
Shon Washington, D.C.
20555 Administrative Judge l
Atomic Safety and Licensing Board Panel U.
S.
Nuclear Regulatory Commission Washington, D.
C.
20555 L
~
.. Janice E. Moore, Esquire Judd Bacon, Esquire Counsel for NRC Staff Consumers Power Company U.
S. Nuclear Regulatory 212 West Michigan Avenue Commission Jackson, Michigan 49201 Washington, D.
C.
20555 Ms. Christa-Maria Herbert Semmel, Esquire Route 2, Box.108C Urban Law Institute Charlevoix, Michigan 49720 Antioch School of Law 2633 16th Street, N.W.
Ms. JoAnne Bier Washington, D.
C.
20555 204 Clinton Charlevoix, Michigan 49720 Mr. John O'Neill, II Route 2, Box 44 Mr. James Mills Maple City, Michigan 49664 Route 2, Box 108 2
Charlevoix, Michigan 49720
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