ML20054C662
| ML20054C662 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/19/1982 |
| From: | Blume M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8204210473 | |
| Download: ML20054C662 (11) | |
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7 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 9
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Docket Nos. 50-329 OM C 0
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50-330 OM-0 (Midland Plant, Units 1 and 2)
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NRC STAFF'S ANSWER OPPOSING THE PETITION OF BARBARA STAMIRIS FOR LEAVE TO INTERVENE IN THE OPERATING LICENSE HEARING I.
INTRODUCTION On fiarch 30, 1982, Barbara Stamiris, a party in the OM-0L proceeding, filed a " Petition for Leave to Intervene in Operators [ sic]
License Hearing." For reasons discussed below, the Staff opposes Ms. Stamiris' petition.
II. BACKGROUND On August 29, 1977, Consumers Power Company submitted an application for operating licenses for the Midland Plant, Units 1 and 2.
On llay 4, 1978 the Nuclear Regulatory Commission published in the Federal Register l
a notice of r, portunity for a hearing with respect to the application for operating licenses by the applicant in this (0L) proceeding. 43 Fed.
Reg. 19304. That notice provided that any person whose interest might be affected by the proceeding could file a petition for leave to intervene l
l and request a hearing pursuant to 10 C.F.R. 6 2.714 on or before June 5, 1978. Timely petitions to intervene were filed by flary P. Sinclair, and by Frank J. Kelly, the Attorney General of the State of Michigan. On DESIGNATED ORIGINAI) i 8204210473 020419
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September 8, 1978 Wendell H. Marshall filed a petition on behalf of the Mapleton Intervenors.
Following a special prehearing conference held on September 10, 1980 pursuant to 10 C.F.R. 6 2.751a, the Licensing Board in this proceeding in its Special Prehearing Conference Order (Order) dated February 23, 1979, granted the petitions of Ms. Sinclair and Mr. Marshall, and admitted the Attorney General of Michigan to participate pursuant to 10 C.F.R. 62.715(c). The Board in this Order also pemitted the parties to begin discovery on the admitted zcontentions.1/ IHscovery-on ewimunental matters was to be completed by June 1,1979, and on radiological health and safety natters by July 6,1979. Supplemental discovery was to be allowed on each of the Staff documents (Safety Evaluation Report and Final Environmental Statement), and was to terminate thirty days following the issuance of the SER Supplement. Any revised contentions were to be filed within ten days after the close of discovery on each document.
On December 6,1979 the Staff issued an Order Modifying Construction Permits for the Midland Plant following disclosure of unanticipated settlement of the diesel generator building. The Applicant requested a l
l hearing on the Order, and notices of hearing and opportunity to intervene 1
in the proceeding (OM) were published in the Federal Register. 45 Fed.
Reg. 18214-15 (3/14/80);and 45 Fed. Reg. 35949 (5/20/80). Petitions were submitted by Ms. Stamiris and others. The Board, in an Order issued
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Contentions were admitted concerning unresolved generic safety issues, conformity of electrical wiring to NRC criteria, evacuation i
plans, soil settlement, and fogging and icing.
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October 24, 1980, granted the petition of Ms. Stamiris for intervention in the OM proceeding.
In that same Order the Board ordered partial consolidation of the OM and the OL proceedings insofar as they both involved soils settlement contentions, and admitted Ms. Stamiris into the OL proceeding as a party, limited to the soils settlement contentions.
Order at 14-15.
At an April 27, 1981 prehearing conference the parties, including Ms. Stamiris, discussed the need to establish a date for the latest filing of contentions related to remedial actions arising out of the Three Mile Island accident. Tr. at 456-68.
In response to a motion filed by the Staff, the Board on June 15, 1981 ordered all parties to file "TMI Contentions" by July 31, 1981, admonishing the parties not to wait for the Staff's OL SER before filing these late contentions, and to show good cause pursuant to 10 C.F.R. 5 2.714 for any such contentions.
Order of June 15, 1981, at 7.
A copy of this order was served by mail on Ms. Stamiris, and neither she nor any other party filed TMI contentions.
Because of the ongoing OM proceeding, activities in the OL proceeding, including the Staff's review efforts, have been extended. The l
Staff's Draft Environmental Statement (DES) was issued in February 1982.
Thereaf ter, on March 30, 1982, Ms. Stamiris filed the subject petition.
III. ARGUMENT Consideration of petitions to intervene in NRC proceedings is governed by 10 C.F.R. 6 2.714. Under % 2.714(a), petitioners must demonstrate standing to intervene before they will be granted intervention as a matter of right.
See, e.g., Cincinnatti Gas and
Electric Company (William H. Zimmer Nuclear Station), LBP-80-14, 11 NRC 570 (1980) [ hereinafter cited as Zimer]. Because Ms. Stamiris was found to possess standing to intervene as a matter of right in the OM proceeding (Memorandum and Order Ruling Upon Standing to Intervene, July 24, 1980, at 2-3), the Staff does not contest her standing in the OL proceeding.
In view of her admission to the OL proceeding as a party, the Staff views Ms. Stamiris' petition as a motion for leave to expand her participation in the OL proceeding, although she fails to set forth
-the: additional auttters she wishes' to litigate. The Staff believes that such a. motion is analogous to a motion to admit late-filed contentions, and the discussion which follows is presented in this light.
The standards pertinent to the admission of late-filed contentions are set forth in 10 C.F.R % 2.714(a)(1).
See Pacific Gas & Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-81-5,13 NRC 361, 364 (1981). Boards are thus directed to balance several factors in their censideration of late-filed contentions: good cause if any, for failure to file on time; the availability of other means whereby the petitioner's interest will be protected; the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record; the extent to which petitioner's interest will be represented by l
other parties; and the extent to which petitioner's participation will broaden the issues or delay the proceeding. Ms. Stamiris has failed to affirmatively address these factors and demonstrate that they weigh in her favor, as discussed below. This failure mandates a denial of her l
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rotion. See Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3),
ALAB-615, 12 r;EC 350, 352 (1980)[ hereinafter cited as Perkins].
The Staff's analysis of Ms. Stamirls' motion under the criteria of 10 C.F.R. % 2.714(a)(1) follows:
Goed Ceuse, If Any, Fcr Failure To File On Time Ms. Stamiris in her petition says that she had no intent to intervene in the OL proceeding until she read the Staff's DES (Petition at 2), which was issued in February. This argument falls far short of establishing good cause for. two reasons. First, to the extent she is sws1.;is that
~she was relying on the Staff to represent her interests and was disappointed af ter reading the DES, this is clearly an insufficient reason to delay submission of a petition to intervene. See e.g., Gulf States Utilities Co. (River Bend Plant), ALAB-444, 6 NRC 760, 796-97 (1977).
Second, publication of the DES, or of any other Staff document for that natter, is not in itself the type of new evidence or information which gives rise to good cause for lateness. Thus in Wisconsin l
Electric Power Co. (Koshkonong Nuclear Plant, Units 1 & 2), CL1-74-45, l
8 AEC 928 (1974), intervenors urged that it was necessary to have the Staff's documents available before they submitted contentions. The Com11ssion denicc the request, holding that there was a wealth of infctmaticr. eveilable (through the Applicant's PSAR and environmental information), even though the ACRS report, the SER, and DES had not been published.
Id., 8 AEC at 929. The Comission alsc cbserved in that decision that intervenors in Comission proceedings, just as parties in lawsuits, file pleadings before discovery.
Id.
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Though new information may serve as the basis for good cause to file late, the mere issuance of a Staff document does not alone establish that good cause. A Staff document can serve as a basis for late filing only to the extent that it contains new information. Good cause may be shown if there is " availability of new information appearing in previously unavailable documents...." Cincinnati Gas & Electric Company, (William H. Zimmer Nuclear Station), LBP-80-24, 12 NRC 231, 236 (1980).
Ms. Stamaris has failed to even hint at what new infonnation is made available in',the DES which was not previously available in other
- documents, e.g., the Environmental Report.
fis. Stamiris also vaguely alludes to "significant safety concerns which have arisen since 1978 involving the design and construction of this plant, as well as generic issues...." Petition at 1.
No mention is made of what these concerns are, when these concerns arose, nor why Ms.
Stamiris has waited until this time to raise these issues.
Ms. Staniris has been a party to these proceedings for over two years and was advised by this Board to submit any TMI contentions no later than July 31, 1981, which even at that time would have been late-i I
filed contentions. She thus had actual knowledge of the obligation she was under with respect to the submission of contentions and, as a result of her extensive participation in the OM-0L proceeding, should be considered familiar with this agency's procedures. Having failed to j
accept the Board's invitation to file late contentions by July 1981, she now gives no substantial explanation for her delay. This cannot be construed, even in the best light, as good cause.
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The Availability Of Other Means Whereby The Petitioner's Interest Will Be Protected Ms. Stamiris has not affirmatively demonstrated that her interest cannot be protected by other means, and thus this factor weighs against her. See Perkins, supra.
The Extent To Which The Petitioner's Participation May Reasonably Be Expected To Assist In Developing A Sound Record Once again, other than claiming that she has " worked in the public interest" in the OM proceeding, Ms. Stamiris does not affirmatively demcmstrate inow she will contribute to the development of.e sound record.
That being so, Perkins, supra, mandates that this factor weigh against her.
Though Ms. Stamiris has participated in the OM-0L proceeding, she does not explain how she, with little or no technical background, will contribute to the development of a sound record involving contentions already admitted in the OL proceeding, the bulk of which involve unresolved generic safety issues. Furthermore, since she has not set forth any new contentions in her petition, it is not possible even to spec; late as to whether she might contribute on new matters.
Ms. Stamiris' ability to contribute to the development of a sound record is thus questionable at best. The Staff believes that this should also weigh against her late intervention in the OL proceeding.
The Extent To Which Petitioner's Interest Will Be Protected By Existing Parties Ms. Stamiris has not addressed this question and it should weigh against her.
Perkins.
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The Extent To Which Petitioner's Participation Will Broaden The Issues Or Delay The Proceeding Ms. Stamiris fails to address this question, and the conclusion that this factor should weigh against her is the dictated by Perkins.
It is reasonable to also assume that additional contentions will broaden and protract the OL proceeding as a result of the likely need for more discovery and a longer hearing. Because Ms. Stamiris has not set forth any new contentions, it is not possible to judge whether such delay could be minimized by the Board pursuant to 10 C.F.R. 5 2.714(e) and 6 2.715a.
IV. CONCLUSION As discussed above, Ms. Stamiris has not shown good cause for her lateness, and her burden on the other factors in paragraph 6 2.714(a)(1) is thus much greater. See, e.g., Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 389 (1976). As she prevails on none of the other factors to be balanced in paragraph (a)(1), the conclusion is inescap3ble that her motion should be denied.2_/
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As the Appeal Board has said in similar circumstances:
...[A] licensing board simply has no latitude to admit a new party to a proceeding as the hearing date approaches in circumstances where (1) the extreme tardiness in seeking intervention is unjustified; (2) the certain or likely consequence would be I
prejudice to other parties as well as delay in the progress of the proceeding, particularly attributable to the broadening of issues; and (3) the substantialit., of the contribution to the development of the record which might be made by that party is problematic.
South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-643, 13 NRC 898, 900 (1981).
_ 9 Respeetfully submitted, to 6L~-
Michael B. Blume Counsel for NRC Staff Dated at Bethesda, Maryland this 19th day of April,1982 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CONSUMERS POWER COMPANY Docket Nos. 50-329 OM & OL 50-330 OM & OL (MidlandPlant, Units 1and2)
CERTIFICATE OF SERVICE Pherebyl certify that copies of "NRC STAFF'S ANSWER 10PPOSIIEG'THE Pcil:10E'0F' BARBARA
'5TAMIRIS'FOR LEAVE TO INTERVENE IN THE OPERATING LICENSE HEARING" in the above-I
. captioned $ proceeding have been served on the following by deposit 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 19th day of April,1982:
- Charles Bechhoefer, Esq.
Frank J. Kelley Administrative Judge Attorney General of the State Atomic Safety and Licensing Board of Michigan U.S. Nuclear Regulatory Commission Steward H. Freeman Washington, D.C.
20555 Assistant Attorney General Environmental Protection Division 525 W. Ottawa St., 720 Law Bldg.
Ralph S. Decker Administrative Judge Lansing, Michigan 48913 Route #4, Box 1900 Cambridge, Maryland 21613 Ms. Mary Sinclair 5711 Summerset Street Dr. Frederick P. Cowan Midland, Michigan 48640 Administrative Judge 6152 N. Verde Trail Michael I. Miller, Esq.
Ronald G. Zamarin, Esq.
Apt. B-125 Boca Raton, Florida 33433 Alan S. Farnell, Esq.
Isham, Lincoln & Beale One First National Plaza
- Dr. Jerry Harbour Administrative Judge 42nd Floor Atomic Safety and Licensing Board Chicago, Illinois 60603 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 James E. Brunner, Esq.
Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 e h P'
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O Ms. Barbara Stamiris
- Atomic Safety and Licensing Board 5795 N. River U.S. Nuclear Regulatory Comission Freeland, Michigan 48623 Washington, D.C.
20555 James R. Kates
- Atomic Safety and Licensing Appeal 203 S. Washington Avenue Panel Saginaw, Michigan 48605 U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Wendell H. Marshall, Vice President Midwest Environmental Protection
- Docketing and Service Section Associates Office of the Secretary RFD 10 U.S. Nuclear Regulatory Comission Midland, Michigan 48640
-Washington, D.C.
20555 i
Jeann Linsley Steve J. Gadler, P.E.
Say City Times 4
2120 Carter Avenue
'311 Tifth Street -
St. Paul, MN
'55108 Bay: City, Michigan 48706 Frederick C. Williams Paul C. Rau Isham, Lincoln & Beale Midland Daily News 1120 Connecticut Avenue, NW 124 Mcdonald Street Washington, D.C.
20036 Midland, Michigan 48640 Myron M. Cherry Cherry & Flynn Suite 3700 Three First National Plaza Chicago, IL 60602 Michael B. Blume Counsel for NRC Staff
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