ML20054L437

Response Opposing B Stamiris 820607 & 14 Motions for Leave to File Untimely Appeal from ASLB 820430 Memorandum & Order LBP-82-35.Reasons for Delay Insufficient.Certificate of Svc Encl

ML20054L437
Person / Time
Site:	Midland
Issue date:	07/02/1982
From:	Wilcove M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, ISSUANCES-OM, LBP-82-35, NUDOCS 8207080122
Download: ML20054L437 (11)

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6 07/02/82 UNITED STATES OF AMERICA

, NUCLEAR REGULATORY COMMISSION BEFGRE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 1

! In the Matter of )

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CONSUMERS POWER COMPANY \

Docket Nos. 50-329 OM & OL

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

NRC STAFF RESPONSE TO INTERVEN0R BARBARA STAMIRIS' MOTION FOR LEAVE TO FILE AN UNTIPELY APPEAL i

1 Michael N. Wilcove Counsel for NRC Staff l

Dated: July 2, 1982 6

l T)s d 8207080122 820702

, PDR ADOCK 05000329 C PDR

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l 07/02/82 UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION l BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

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4 CONSUMERS POWER COMPANY Docket Nos. 50-329 OM & OL (Midland Plant, Units 1 and 2) )

. NRC STAFF RESPONSE TO INTERVENOR BARBARA STAMIRIS' MOTION FOR LEAVE TO FILE AN UNTIMELY APPEAL

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l Michael N. Wilcove Counsel for NRC Staff l W i Dated: July 2, 1982 P

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07/02/82

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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 ) Docket Nos. 50-329 OM & OL

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

NRC STAFF RESPONSE TO INTERVEN0R BARBARA STAMIRIS' MOTION FOR LEAVE TO FILE AN UNTIMELY APPEAL

1. INTRODUCTION By letters to the Appeal Board dated June 7, 1982 and June 14, 1982, Intervenor Barbara Stamiris moved for leave to file an untimely appeal

- from a Memorandum and Order issued by the Licensing Board on April 30, 1982, LBP-82-35, 15 NRC (1982) (hereafter April 1982 Order).

For the following reasons, the Staff opposes Ms. Stamiris' motion.

II. BACKGROUND This proceeding was initiated by an Order Modifying Construction Permits issued on December 6,1979 (hereafter December 1979 Order). The basis for this Order was, in part, the excessive settlement of soil under and around the diesel generator building. The December 1979 Order would haveprohibitedConsumersPdwerCompany(CPC)fromundertakingcertain soils construction activities unless CPC obtained construction permit amendments authorizing such wo'rk. Under the terms of the Order, it will not become effective until a date specified in an Order made following the hearing.

Prior to the April 1982 Order, however, CPC voluntarily agreed to obtain Staff approval before proceeding with remedial work to correct soil related problems under or around safety related structures. Each i

time the Staff approved such work, it notified ,the Board and the intervenors.

After a number of hearing sessions, the Board issued the April 1982 Order which authorized the Staff to amend CPC's construction permits to prohibit all work covered by the December 1979 Order, along with certain additional work, unless CPC obtained explicit Staff approval beforehand.

Furthermore, all such work was to be covered by a Staff-approved Quality Assurance Plan. The Board noted that the requirements of the April 1982 Order were subject to reaffirmation, expansion or removal when the first Partial Initial Decision was issued. The Order stated that pursuant to 10 C.F.R. 5 2.762(a), exceptions were to be filed within ten days after  ;

t service. None were filed and on May 26, 1982, the Staff amended CPC's construction permits consistent with the April 1982 Order.

On May 25, 1982, the Staff approved certain underpinning work designated " Phase 2 underpinning activities." The letter granting approval also stated that future remedial work would not be approved i pieceneal, but would be considered as an integrated package. Copies of the letter were sent to the Board and the parties.

On June 7,1982, Intervenor Stamiris filed an " appeal" from the April 1982 Order.3/ In her cover letter (hereafter " June 7 letter"), she

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- This Affectfiling],

[ sic ofentitled "Intervenor Ammendment [ sic]Appeal No. 3 toRegarding Construction thePermits Irresversible on the OM-OL Proceeding" was ambiguous. It was unclear whether she was appealing the issuance of the amendment or appealing the April 1982 Order. In a supplemental letter dated June 14, 1982, Ms. Stamiris clarified that she is appealing the April 1982 Order.

acknowledged that her appeal was late. She claimed that she d*d not file an appeal within the specified time period because (1) the Order appeared to strengthen control over CPC's remedial work and (2) she " trusted the NRC to abide by their April 2, 1982 commitment to refrain from further

' piecemeal concurrence' for soils remedial work and present a 'whole l package review' for further remedial work at a future hearing, even though this was not required by the Order...." June 7 letter.2/ She also stated that she began work on her appeal as soon as she received

. copies of the Staff's letter to CPC approving Phase 2 underpinning work and the amendments to CPC's construction permits. In a letter dated June 14,1982, (hereafter " June 14 letter") Ms. Stamiris further explained that she did not appeal the Order within the prescribed ten days because "at that point the independent NRC concurrence for soils remedial work outside of the hearing was a possibility but not a reality." The Staff's approval of Phase 2 underpinning work turned the possibility into a reality, thereby prompting the appeal.

On June 22, 1982, the Appeal Board issued an Order directing the l

parties to treat the June 7 letter and the June 14 letter as a motion for leave to file an untimely appeal. Further briefing on the merits was deferred until disposition of this motion. Hence, this paper addresses only the issue of whether Ms. Stamiris' untimely appeal should be accepted.

-2/ When Ms. Stamiris speaks of April 2,1982 as the date on which the Staff made its " commitment", she is apparently referring to a conference call held that day. In the call, the Staff expressed its intent to review the remedial soils work as a package and, hence, requested an indefinite postponement of hearings scheduled to resume i later that month.

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- i III. DISCUSSION 1

The April- 1982 Order specificrily set forth the time in which to file exceptions. Since fis. Stamiris did not fale exceptions within the prescribed time period, she must make a strong , showing of good cause as to why her untimely appeal should be accepted.3/ The reasons which she gives for her delay are insufficient.

The basis for her failure to file a timely appeal, as set forth in her i

'une 7 and June 14 letters, is twofold. The Staff (1) did not abide by its April 2, 1982 " commitment" to refrain from piecemeal concurrence and (2) approved further remedial work without subjecting that work to the hearing process.

The April 1982 Order explicitly stated that it did not " dictate the manner in which the Staff may exercise its review - i.e., whether piecemeal (individual construction steps) or as an integrated package."

(Slip opinion, at 19.) If thera were any thought that the Staff was bound

, to a " package review, as a result of the April 2,1982 telephone conver-sation, the Order clearly negated it. Thus, Ms. Stamiris was clearly on notice as of the April 1982 Order that the Staff was given the discretior, i to review the remedial soils work either as a package or in segments.  ;

With respect to Ms. Stamiris' belief that she would have an opportunity for further hearing on the Staff approval of remedial work, again, we believe that the Order is quite clear that no such opportunity t

for hearing was accorded. Ms. Stamiris' failure to recognize conditions I

which are clear on the face of the April 1982 Order, does not constitute P

good cause for a late filed appeal.

3/ See discussion at pages B-7, infra. 1 I

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! Ms. Stamiris acknowledges that the Order required neither package review of the remedial work nor presentation of Staff concurrence at a hearing. Her June 7 letter states that:

[E]ecause I trusted the NRC to abide by their April 2,1982 commitment to refrain from further ' piecemeal concurrence' for soils remedial work, and present a 'whole package review'

for further remedial work at a future hearing, even though this was not required by the Order, I did not seek an exception within the specified time period. (Emphasis l added.)

l Accordingly, Ms. Stamiris' justification for appealing late is not

. that she obtained new information after the deadline for filing appeals, but that she is dissatisfied that the Staff failed to take the action that she anticipated, even though it was clear on the face of the Order thatsuchactionwasnotrequired.b/

! Ms. Stamiris' delayed realization that she was dissatisfied with the i

April 1982 Order is insufficient as a showing of good cause for a late i appeal.Section IX(d)(3) of Appendix A to Part 2 of the Comission's j regulations specifically states that:

There must be strict compliance with the time limits i 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 l time must be received by the Appeal Board at least 1 day

! 4/ The Appeal Board has held that an erroneous assumption that others i would protect one's interests does not constitute good cause justifying a subsequent untimely action to protect those interests.

Cf. South Carolina Electric and Gas Company, et al. (Virgil C.

3iimmer Nuclear Station, Unit 1), ALAB-642,13 TiRC881 (1981), aff'd.

Fairfield United Action v. Nuclear ".gulatory Comission, No.

81-2042 (D.C. Cir.1982), Duke Power Company (Cherokee Nuclear l Station, Units 1,2 and 3), ALAB-440, 6 NRC 642 (1977).

prior ts the date upon which the document in question 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.

The Appeal Board has long adhered to the p*rinciples of SectionIX(d)(3). Nuclear Engineering Company (Sheffield; Illinois Low Level Radioactive Waste Disposal Site, ALAB-606, 12 NRC 156 (1980),

(hereafter Sheffield), cited by this Appeal Board in its June 22 Order, specifically states that time limits for appeals are enforced strictly.5_/

Sheffield cited Iowa Electric Light and Power Company, et al., (Duane Arnold Energy Center), ALAB-108, 6 AEC 195 (1973), (hereafter In Duane Arnold, a Duane Arnold) as authority for that statement.

. prospective intervenor was one day late in filing his appeal from the denial of his petition to intervene. Nonetheless, the Appeal Board dis-missed his appeal stating that the time for filing an appeal should be extended only in " compelling circumstances." M.at195. Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-547, 9 NRC 638 (1979) also involved a late filed appeal from a denial of intervention. Again, the Appeal Board dismissed the i appeal stating that "...we would not be justified in accepting a belated

-5/ In Sheffield, the Appeal Board permitted an intervenor to file a late appeal. The intervenor had mistakenly assumed that a

particular Order was interlocutory and therefore did not file an appeal on time. In permitting a late appeal, the Appeal Board nonetheless admonished that time limits with regard to appeals are enforced strictly. 12 NRC at 160. That intervenor's failure to file his appeal on time stemmed fonn a mistake in legal judgment.

Ms. Stamiris' motion is distinguishable. It was clear on the face of the April 1982 Order that neither package review of remedial work nor testimony on the approval of such work was required.

c appeal in the absence of a showing of good cause for the failure to have filed it on time. And, the greater the tardiness, the more compelling need be that showing." Id. at 639. The reasons set forth by Ms. Stamiris for her delay are not sufficient good cause as required by both the Commission's regulations and the Appeal Board.

IV. CONCLUSION For the foregoing reasons, the Staff opposes Ms. Stamiris' motion

. for leave to file an untimely appeal and urges that it be denied.

Respectfully submitted,

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N%\ % W%

Michael N. Wilcove Counsel for NRC Staff Dated at Bethesda, Maryland this 2nd day of July, 1982.

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UNITED STATES OF AMERICA NUCLEAR REGUALT0RY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

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

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

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENOR BARBARA STAMIRIS' MOTION FOR LEAVE TO FILE AN UNTIMELY APPEAL" in the above-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 2nd day of July,1982.

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• Christine N. Kohl, Chairman Ralph S. Decker Atomic Safety and Licensing Appeal Administrative Judge Board Panel Route #4, Box 190D U.S. Nuclear Regulatory Commission Cambridge, Maryland 21613 Washington, D.C. 20555 Dr. Frederick P. Cowan

• Dr. John H. Buck Administrative Judge Atomic Safety and Licensing Appeal 6152 N. Verde Trail Board Panel Apt. B-125 U.S. Nuclear Regulatory Commission Boca Raton, Florida 33433 Washington, D.C. 20555

• Dr. Jerry Harbour

• Thomas S. Moore Administrative Judge Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20036 Washington, D.C. 20555 Frank J. Kelley

• Charles Bechhoefer, Esq. Attorney General for the State Administrative Judge of Michigan Atomic Safety and Licensing Board Steward H. Freeman U.S. Nuclear Regulatory Commission Assistant Attorney General Washington, D.C. 20555 Environmental Protection Division 525 W. Ottawa St., 720 Law Bldg.

Lansing, Michigan 48913

James R. Kates Steve J. Gadler, P.E.

203 5. Washington Avenue 2120 Carter Avenue Saginaw, Michigan 48605 St. Paul, MN 55108 Ms. Mary Sinclair Wayne Hearn 5711 Summerset Street Bay City Times Midland, Michigan 48640 311 Fifth Street Bay City, Michigan 48706 Michael I. Miller, Esq.

Ronald G. Zamarin, Esq.

• Atomic Safety and Licensing Board Alan S. Farnell, Esq. U.S. Nuclear Regulatory Commission Isham, Lincoln & Beale Washington, D.C. 20555 Three First National Plaza 42nd Floor

• Atomic Safety and Licensing Appeal Chicago, Illinois 60603 Board Panel U.S. Nuclear Regulatory Commission

. James E. Brunner, Esq. Washington, D.C. 20555 Consumers Pcwer Company 212 West Michigan Avenue

• Docketing and Service Section Jackson, Michigan 49201 Office of the Secretary U.S. Nuclear Regulatory Commission Ms. Barbara Stamiris Washington, D.C. 20555 5795 N. River

. Freeland, Michigan 48623 Myron M. Cherry, p.c.

Peter Flynn, p.c.

Wendell H. Marshall, President Cherry & Flynn Mapleton Intervenors Three First National Plaza RFD 10 Suite 3700 Midland, Michigan 48640 Chicago, Illinois 60602 T. J. Creswell Frederick C. Williams Michigan Division Isham, Lincoln & Beale Legal Department 1120 Connecticut Avenue Dow Chemical Company Washington, D.C. 20555 Midland, Michigan 48640

%\ k NQ MichaelN.Wiicove Counsel for NRC Staff i

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