ML20054L288
| ML20054L288 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 07/02/1982 |
| From: | Mark Miller, Mark Miller CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8207070347 | |
| Download: ML20054L288 (13) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329-OM
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(Midland Plant, Units 1 and 2 )
50-330-OM 50-329-OL
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50-330-OL
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REPLY TO MOTION FOR LEAVE TO FILE AN UNTIMELY APPEAL AND MOTION TO STRIKE INTERVENOR
_ BARBARA STAMIRIS' APPEAL By order dated June 22, 1982 in this docket, the Appeal Board elected to treat certain letters filed by i n-tervenor Barbara Stamiris as a motion for leave to fil e an untimely appeal and requested replies from the other parties to the proceeding by July 2, 1982.
This reply is filed pursuant to the June 22, 1982 order.
In addition, Consumers Power Company (" Consumers Power"), pursuant to 10 CFR S2.762(e),
requests that the Atomic Safety and Licensing Appeal Board
(" Appeal Board")
strike Intervenor Barbara Stamiris' appeal from the April 30, 1982 Order and Memorandum (" Order and Memorandum") issued by the Atomic Safety and Licensing Board
(" Licensing Board").
BACKGROUND On December 6, 1979, the NRC Staff, through the Offices of Nuclear Reactor Regulation and Inspectio I
n and Enforcement, t
issued an " Order Modifying Construction Permits" t
l 8207070347 B20702 DR ADOCK 05000329 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIGN Before the Atomic Safety and Licensing Appeal Board
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In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329-OM
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50-330-OM (Midland Plant, Units 1 and 2 )
50-329-OL
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50-330-OL
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REPLY TO MOTION FOR LEAVE TO FILE AN UNTIMELY APPEAL AND MOTION TO STRIKE INTERVENOR BARBARA STAMIRIS' APPEAL By order dated June 22, 1982 in this docket, the Appeal Board elected to treat certain letters filed by in-tervenor Barbara Stamiris as a motion for leave to file an untimely appeal and requested replies from the other parties to the proceeding by July 2, 1982.
This reply is filed pursuart to the June 22, 1982 order.
In addition, Consumers Power Company
(" Consumers Power"), pursuant to 10 CFR S2.762(e),
requests that the Atomic Safety and Licensing Appeal Board
(" Appeal Board") strike Intervenor Barbara Stamiris' appeal from the April 30, 1982 Order and Memorandum (" Order and 1
Memorandum") issued by the Atomic Safety and Licensing Board
(" Licensing Board").
BACKGROUND On December 6, 1979, the NRC Staff, through the Offices of Nuclear Reactor Regulation and Inspection and Enforcement, issued an " Order Modifying Construction Permits" B207070347 820702 DR ADOCK 05000329 PDR "pg 3
(" Modification Order") which would have suspended all soils-related and remedial work on the Midland Plant, Units 1 and 2, until a construction permit amendment seeking approval of the soils-related and remedial work on the Midland Plant, Units 1 and 2, was applied for by Consumers Power and approved by the NRC Staff.
On December 26, 1979, Consumers Power stayed the effectiveness of the Modification Order by re-questing a hearing in accordance with Part V of the Modifi-cation Order.
The Commission subsequently established a Licensing Board to consider the accuracy of the facts set forth in the Modification Order and whether the Order should be sustained.
Hearings on these issues were conducted before the Licensing Board in 1981 and 1982.
Despite the stay of the Modification Order, in February, 1980, Consumers Power voluntarily committed not to proceed with further remedial actions without review and concurrence by the NRC Staff. (Keeley, prepared testimony at p.
13, following Tr. 1163).
Pursuant to this commitment, the NRC Staff has reviewed and approved, on an individual basis, a number of separate soils-related remedial activities at the Midlant plant from early 1980 up to the present.
In April, 1982, the Staff announced that it intended to complete its entire review of the remaining soils remedial activities as an integrated package, and noted that it expected to approve no further remedial activities until the completion l
of the integrated review. In a letter dated May 25, 1982, i
the Staff gave formal approval to those remedial activities i
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i which, as the letter itself states, the Staff had substantially reviewed prior to April 1, 1982.
(Letter from D. G.
Eisenhut to J. W.
Cook, May 25, 1982)
On April 30, 1982, after the close of the quality assurance portion of the hearings arising from the Modification Order,-*/ the Licensing Board issued a Memorandum and Order, imposing certain interim conditions pending the issuance of the Board's partial initial decisions.
The Memorandum and Order authorized the Director of Nuclear Reactor Regulation
("NRR") to amend the Midland construction permits to prohibit, absent explicit prior approval from the NRC Staff, essentially the same activities (taking developments since December 6, 1979 into account) that would have been prohibited by the Modification Order.
The Memorandum and Order did not prescribe the means by which the NRC Staff was to review and approve proposed remedial activities.
The Licensing Board expressly noted that the Memorandum and Order did not " dictate the manner in which the Staff may exercise its review - -
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whether piecemeal (individual construction steps) or as an integrated package."
(Memorandum and Order, at p. 19).
The Memorandum and Order was served on all parties on May 3, 1982.
On May 26, 1982, the Director of NRR issued amend-ments to the Midland construction permits that incorporated verbatim the amendment authorized and set forth in the Memorandum and Order.
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Hearings on the other issue arising from the Modification Order, the acceptability of proposed remedial actions, have not yet been completed.
Part IV of the Memorandum and Order also contained explicit instructions on the procedure to be followed in appeals.
It confirmed that the Memorandum and Order was subject-to review pursuant to 10 CFR S2.760, 2.762,
- 2. 764 (a) 2.765 and 2.786.
Exceptions were required to be filed within ten days after service of the Order (i.e. May 13, 1982).
A brief in support of the exceptions was required to be submi tted within thirty days thereafter.
(Memorandum and Order, at p. 22).
These requirements merely restated the requirements for the filing of appeals dictated by the Commission's Rules of Practice, 10 CFR S2.762.
No exceptions to the Memorandum and Order were filed by any party by May 13, 1982.
On June 7, 1982, thirty-five days after service of the Memorandum and Order, Intervenor Barbara Stamiris filed a document entitled "In-tervenor Appeal Regarding the Irreversible Effect of Amend-ment No. 3 to Construction Permits on the OM-OL Proceeding"
("Intervenor Appeal").
On June 14, 1982, Ms. Stamiris sent a letter to the Appeal Board which requested an extension of l
l time for filing an appeal of the Memorandum and Order.
The letter also explained that the Intervenor Appeal had been l
intended as an appeal from the Memorandum and Order.
l ARGUMENT
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The Intervenor Appeal should be stricken for three l
reasons:
(1) it is not in substantial compliance with
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the procedures for appeal prescribed by 10 CFR S2.'.62 and by the Order itself; (2)
The argument it raises should not be brought before the Appeal Board as first resort, but n
should t.nitially be submi tted~to the Licensing Boara f)r resolution; and (3) the issae it raises is not ripe for adjudi-cation by the Appeal Board.
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A.
Lack of Substantial Compliance Intervenor Etamiris' appeal must be stricken under 10 CFR S2.762(e) for J ack of substantial compliance with the provisions of section 2.762.
The Memorandum and Order specifically stated that appeals should be taken pursuant to 10 CFR 52.762 and expressly incorporated the terms of that section into the Order itself.
10 CFR 52.762 (e) provides that "any exception or brief whi6h in form or content is not in substantial compliance with the provisions of the section may be stricken."
Section 2.7'62 is clearly intended to provide parties with timely notice that another party is contesting the validity of an NRC decision.
The mandatory 7 en~ day t
deadline for filing of exceptions serves an important function, for it defines the issues for appeal and starts the appeal process off towards a timely resolution.
It is vitally important to Consumers Power that all issues affecting soils remedial work be resolved as promptly as possible, 9
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since this work is on the " critical path" for the Midland Plant.
Intervenor Stamiris' belated " appeal" of the Board's Nemorandum and Order, is in reality a challenge to the staff's review process, rather than to any portion of the i
Board's Memorandum and Order.
As such, it seems likely to s
further delay Staff review and concurrence in Consumers L
Power's remedial proposals.
This disruptive effect is i
compounded by the tardiness and unfocussed nature of the document filed by Intervenor Stamiris.
The seriousness with which the NRC regards the P
deadlines established in 10 CFR S2.762 is emphasized in Appendix A to the Rules of Practice:
j There must be strict compliance with the time limits prescribed for the filing of exceptions or briefs by the rules of practice or by an order of the Appeal Board which extends or shortens those limits in the particular case.
Absent a showing of extraordinary and unanticipated circumstances, motions for exceptions of time must be received by the Appeal Board at least 1 day prior to the date upon which the document in questions is then due for filing.
In no circumstances will a document be accepted by the Appeal Board on an untimely basis unless it is accompanied by a motion for leave to file it out of time, which similarly must be founded upon extraordinary and unanticipated circumstances.
Exceptions and briefs which in form or content are not in substantial compliance t
with the requirements imposed by the rules of practice are subject to being stricken.
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10 CFR Part 2, Appendix A, Section 1X (d) (3).
(Emphasis added).
The Appeal Board has also stressed the need to file either timely documents or a motion to extend:
The time limits prescribed in Section 2.762(a) are entitled to respect-as for that matter are the provisions of the Commission's Rules of Practice generally.
For this reason, we expect litigants i
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to make every reasonable effort to comply with those limits and, should additional time never-theless prove necessary, to make timely applica-tion for an extension.
In the event of some eleventh hour unforeseen development, a party may tender a document belatedly.
The tender must, how3ver, be accompanied-as the Coalition's brief here was not-by a motion for leave to file out-of-time which satisfactorily explains not only the reason for the lateness, but also why a motion for an extension of time could not havs been seasonably submitted.
This is so irrespective of the extent of the lateness.
Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1) ALAB-424, 6 NRC 122, 125 (1977).
Ms. Stamiris has shown no " extraordinary and unanticipated circumstances" which justify her delay of five weeks in initiating an appeal.
The circumstance which Ms.
Stamiris claims precipitated her appeal -- the May 25, 1982 approval given by the NRC Staff to remedial activities which it had fully reviewed prior.to April 1, 1982 -- was neither extraordinary nor unforeseeable.
This so-called " piecemeal" approach to approval had been followen by the NRC Staff for the last two years, as Ms. Stamiris herself recognizes.
(Intervenor Appeal, at pp. 6-8).
Morecever, the possibility that the Staff might continue this approach after April 30, 1982 was contemplated by the Memorandum and Order itself, which specifically declined to " dictate the manner in which the staff may exercise its review -- i. e. whether piecemeal (individual construction steps) or as an integrated package."
The filing of Ms. Stamiris' appeal violates both the letter and the purpose of the appeal procedures prescribed by the Commission.
Ms. Stamiris did not file her appeal
_ _ ___ _ o until five weeks after service of the decision she wishes to challenge.
Her untimely appeal was neither preceded nor accompanied by a motion for extension of time.
She never filed exceptions at all.
The cases wherein an Appeal Board has waived the strict time requirements of section 2.762 and sustained an appeal against a motion to strike involved minor violations of the Rules of Practice or bear no re-semblance to the facts at hand.
In some cases, intervenors were granted leave to file briefs which had been submitted only a few days out-of-time, and which had been preceded by exceptions filed on time or within three days of the deadline with the concurrence of the NRC Staff.
Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2).
ALAB-568, 10 NRC 554 (1979); Kansas Gas and Electric d
Compan_y, Kansas City Power and Light Company (Wolf Creek j
Generating Station, Unit No. 1) ALAB-424, 6 NRC 12? (1977).
In Nuclear Engineering Co.,
(Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-602, 12 NRC 156 (1980),
an untimely appeal was allowed because of the " unfortunate misapprehension" of the party seeking to pursue the appeal that the order was not immediately appelable when issued.
Ms. Stamiris appeal is weeks out of time and, given the specific language in the Licensing Board's opinion, she could not have misapprehended the appealability of the Order.
Ms. Stamiris' actions in this regard clearly i
demonstrate substantial noncompliance with the Commission 4
Rules of Practice and warrant striking her appeal.
B.
Appeal Is An Improper Means For Resolution Of The Matters Raised by Ms. Stamiris Ms. Stamiris' document must also be stricken because the argument she raises is a proper subject of resolution by the Licensing Board, not the Appeal Board.
The essence of Ms. Stamirls' challenge is her disapproval, not of the Memorandum and Order itself, but of 1
the manner in which the NRC Staff is satisfying the re-sponsibilities delegated to it by the Memorandum and Order.
Ms. Stamiris complains that the NRC Staff has interpreted the phrase " prior explicit approval of the NRC Staff" to permit step-by-step oral approval by the Staff of each phase of the remedial work at Midland, without a prior submission of the, remedial plans to the Licensing Board.
This is not a dispute with the terms and conditions established by the Memorandum and Order, but only a dispute with the NRC Staff regarding the proper interpretation of one of its terms, i
This disagreement regarding interpretation is not properly a subject of appeal until it has first been brought before the Licensing Board itself for clarification.
Until she has given the Licensing Board itself the opportunity to decide l
l whether the Staff's actions have been in accordance with the Memorandum and Order, Mrs. Stamiris' arguments about inter-i pretation are prematurely before, the Appeal Board.
Accord-ingly, Ms. Stamiris' appeal should be stricken.
C.
The Issues Raised are Not Ripe for Appeal i
f Finally, Ms. Stamiris' appeal should be stricken l
l because the issues she raises regarding the ability of the NRC Staff to effectively police soils work at Midland are not ripe for appeal.
These issues are not ever. the subject of an admitted contention before the Licensing Board.
Should such a contention now be made, it would first have to be accepted as a late-filed contention, evidence recieved on the matter and a licensing board decision on the facts relating to such a contention made before Appeal Board consideration of this matter would be appropriate. An appeal board will not entertain arguments that a licensing board had no opportunity to address and that are raised for the first time on appeal.
Public Service Electric and Gas Co.,
(Salem Nuclear Generating Station, Unit 1) ALAB-650, 14 NRC 43, 49 (1981).
Review of these matters by the Appeal Board before consideration of the issues by the Licensing Board would obviously be premature.
For this reason also, Ms.
Stamiris' appeal must be stricken.
CONCLUSION Accordingly, Consumers Power moves this Appeal Board to strike Intervenor Barbara Stamiris' appeal.
Con-sumers Power further requests leave to file a brief in re-sponse to Intervenor's appeal, within thirty days after a ruling on the present motion to strike, if the motion to strike is denied.
One of the Attorneys for Consumers Power Company I SilA M, LINCOLN & BEALE Suite 5200 Three First National Plaza Chicago, Illinois 60602 (312) 558-7500 DATED:
July 2, 1982
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing-Board In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329-OM
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50-330-OM (Midland Plant, Units 1
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50-329-OL and 2)
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50-330-OL
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CERTIFICATE OF SERVICE I,
PHILIP P.
STEPTOE, one of the attorneys for Consumers Power Company, hereby certify that a copy of
" Reply To Motion For Leave To File An Untimely Appeal And Motion To Strike Intervenor Barbara Stamiris' Appeal" was served upon all persons shown in the attached service list by deposit in the United States mail, first class, this 2nd day of July, 1982.
4 f
b u,t, m se PHILIP'P. STEHTOE
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SUBSCRIBED AND SWORN bpfore me this
.:2 day of W, f,,
1982.
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7 Un f,,
I' Notary Public s
28, 1985 gg dommission Expires December
SERVICE LIST Frank J.
Kelley, Esq.
Atomic Safety & Licensing Attorney General of the Appeal Pnl.
State of Michigan U.S. Nuclear Reg. Comm.
Carole Steinberg, Esq.
Washington, D.C.
20555 Assistant Attorney General Environmental Protection Div.
720 Law Building Mr. C.R.
Stephens Lansing, Michigan 48913 Chief, Docketing & Services U.S. Nuclear Reg. Comm.
Office of the Secretary Myron M. Cherry, Esq.
Washington, D.C.
20555 One IBM Plaza Suite 4501 Chicago, Illinois 60611 Ms. Mary Sinclair 5711 Summerset Street Midland, Michigan 48640 Mr. Wendell H. Marshall RFD 10 Midland, Michigan 48640 William D.
Paton, Esq.
Counsel for the NRC Staff U.S. Nuclear Reg. Comm.
Charles Bechhoefer, Esq.
Washington, D.C.
20555 Atomic Safety & Licensing Bd. Pnl.
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety & Licensing Bd. Panel U.S.
Nuclear Reg. Comm.
Dr. Frederick P. Cowan Washington, D.C.
20555 6152 N. Verde Trail Apt. B-125 Boca Raton, Florida 33433 Barbara Stamiris 5795 North River Road Route 3 Carroll E. Mahaney Freeland, Michigan 48623 Babcock & Wilcox P. O.
Box 1260 Lynchburg, Virginia 24505 Jerry Harbour Atomic Safety and Licensing Board Panel James E. Brunner, Esq.
U.S. Nuclear Re. Comm.
Consumers Power Company Washington, D.C.
20555 212 West Michigan Avenue Jackson, Michigan 49201 Administrative Judge, I
Christine N. Kohl l
Steve Gadler, Esq.
Atomic Safety & Licensing j
2120 Carter Avenue Appeal Panel St. Paul, Minnesota 55108 U.S. Nuclear Reg. Comm.
l Washington, D.C.
20555 i
l l
l Administrative Judge, Dr. John H. Buck Atomic Safety & Licensing Appeal Panel U.S. Nuclear Reg. Comm.
Washington, D.C.
20555 Administrative Judge, Thomas S. Moore Atomic Safety & Licensing Appeal Panel U.S. Nuclear Reg. Comm.
Washington, D.C.
20555
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