ML20058A437
| ML20058A437 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/14/1981 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, FOIA-93-436, TASK-AII, TASK-SE SECY-81-029, SECY-81-29, NUDOCS 8110280556 | |
| Download: ML20058A437 (8) | |
Text
.-
% 1,y LL%^ :Mik;_Q_
-" * * * "" i' ' i a.'..Lh M==.dr..uu:' M
- M
^
bk Oh)ldsk%
w y
f~pmRfCgh
(
j t
SECY-81-29 January 14, 1981
....+
ADJUDICATORY ISSUE (Information)
For:
The Commissioners From:
James A. Fitzgerald Assistant General Counsel
Subject:
REVIEW OF ALAB-624 (CONSUMERS POWER COMPANY)
Facility:
Midland Plant, Units 1 and 2.
Petitions For Review:
None.
Purpose:
To inform the Commission of an Appeal Board decisionhhich, in our opinion, '
~
~~
EX. f Review Time Expires:
January 26, 1981.
Discussion:
In ALAB-624, the Appeal Board affirmed the Licens-ing Board's decision denying Wendell Marshall's petition for leave to intervene in the proceed-ing on an order to codify certain soil structure aspects of the construction permits for this facility ("0M proceeding"). 1/
Mr. Marshall's petition was denied because the only centention he presented was found to be inadmissible 2/
and, in addition, was untimely without lustifi-cation.
However, Mr. Marshall will be able to participate in the GM proceeding because the
~1/
This proceeding was initiated by an Order Modifying Construc-Permits issued on December 6, 1979 by the Director, NRR.
The scope of the proceeding is confined to issues regarding soil settlement under and around safety related structures and systems.
2_/
The Licensing Board found that the contention lacked sufficient specificity to be admitted; the Appeal Board found that the contention would have improperly expanded the scope cf the OM proceeding as delineated by the Director's Order.
Ic c 14 f w;' !E C Uj f D q[ mar h 9 N.p g M M Q K s'b K d
l' #
a CONTACT:
in a:c?rtr.:e..th the rP;;cm of inicur.ation Sheldon L. Trubatch, OGC it 1
6 R
'"'5
- f, 7 g Act,excapMrd 8110280556 930412 O
f0l A _ f.2_ _f/4__
L.
OILINSK92-43b PDR
'{ Y l'
- l l
2 Licensing Ecard also consolidated it with the
]
soil settlement aspects of the pending operating license proceeding ("0L proceeding") in which Mr. Marshall is already an intervenor. 1/
- Thus, Mr. Marshall will have the right to conduct cross-examination on all issues, to sponsor wit-1 nesses on his contention regarding soil settle-l ment accepted by the Licensing Board in the CL proceeding, and the right to request permission to sponsor a witness on any other issue not encen-passed by his contention, r-
~-
In cur view, i
/
fl h 4/
I Finally, Mr. Marshall will have an opportun1Yy l
to participate in the CM proceeding because the Licensing Board consolidated it with the soil structure aspects of_.the_CL proceeding.
j
.[Thus,inourview,
~ ~' ~ ~~~'
$Y'S L
l 1/
Prehearing Ccnference Order Ruling on Contentions and on Cen-solidation of Proceedings, October 24, 1980.
{/
Mr. Marshall's contention stated:
}
In the event of an accident at the Midland Nuclear Plant which is being built on the Tittabawasse River, in the City of Midland, Michigan, massive quantities of radioactive materials especially in the event of a Class 9 accident, will find their way into the river which flows into Saginaw Bay, the drinking water supply of the Midland-Saginaw area population.
-. ----a
~
= L-3 4
/
?e c c:=:end a tion :
~
I Gi' e'
... -. w> w. 6 James A. Fitzgerald-
,fAssistant General Counsel
Attachment:
ALAB-624
_DISTRIBUTI0tl Commissioners Commission Staff Offices Secretariat yC
\\
7
o
~
~
~-
IQ, '
- : m- _ N;;.
U '.
UNITED STATES OF AMERICA
,'; C.
NUCLEAR REGULATORY COMMISSION
,~
s ATOMIC SAFETi' AND LICENSING APPEAL BOARD 'b c
~
-~.Y ; ::.., 2
..-._:;, 1 * > c.
Administrative Judges:
'h< c.N' Richard S.
Sal:: man, Chairman Dr. John H. Buck Christine N.
"chl A
s
~
)
In the Matter of
)
)
CONSUMERS POWER COMPANY
)
50-330 OM & OL (Midland Plant, Units 1 and 2)
)
)
Mr. Wendell H.
Marshall, Midland, Michigan, pro se.
Mr. William D.
Paton for the Nuclear Regulatory Commission staff.
. MEMORANDUM AND ORDER Decerber 17, 1980 (ALAB-624)
In its October 24, 1980, prehearing conference order, the Licensing Board denied Wendell H. Marshall's petition for leave to intervene in the "OM" proceeding instituted to amend applicant's construction permits.
The Board found Mr. Marshall's only contention to be inadmissible for lack of sufficient specificity.
It also noted that the contention was untimely without justification and thus could be rejected pursuant to 10 C.F.R.
- 82. 714 (a) (slip op. 12),
In the same order, however, the Board consolidated the OM proceeding with the one pending on the utility's application Releass
)
. I i
for an operating license (the "OL" proceeding) for a hearing 1/
cn the soil settlement issues common to both cases.--
The Board therefore pointed out that, because Mr. Marshall is already an intervenor in the OL proceeding, 'the consolida' tion will thus permit him to participate in the OM -proceeding (ibid. ).
The Licensing Board explicitly stated that such participation will include the right to conduct cross-examination on all issues and the right to request permission to sponsor a witness in the OM proceeding.
Mr. Marshall appeals the denial of his petition to intervene in the OM proceeding, and the staff has replied 2/
1 in opposition.-
As discussed below, we affirm the Licensing Board's decision, but on a ground somewhat different than l
that stated by the Board.
The Commission ordered the hearing in the OM proceeding for the limited purpose of considering the following issues --
(1) whether the facts set forth in Part II of the Director's t
Order of December 6, 1979, concerning soil construction acti-i vities under and around safety-related structures and systems, are correct; and (2) whether that order, which prohibits 1
1/
The OM proceeding is confined to soil settlement issues.
See orders of December 6,1979, and March 14, 1980 (as amended May 20, 1980).
~
2/
The staff opens its argument in opposition to the appeal i
by urging that Mr. Marshall has failed to "brief" his case by " adequately" addressing the Licensing Board's rejection of his sole contention.
The staff thus asks us to " disregard" Mr. Marshall's arguments.
While Mr.
Marshall's 12-page pleading is not a parad' yn of clear (FOOTNOTE CONTINUED ON NEXT PAGE) w
1 i 6 certain soil-related activities pending issuance of an e
appropriate amendment to the construction permits, should be sustained.
Despite this narrow focus of the OM proceeding, i
Mr. Marshall offered the following contention in support of his petition to intervene (dated August 27, 1980):
t In the event of an accident at the Midland Nuclear plant which -is being built on the Tittabawasse River, in the City of Midland, Michigan, massive quantities of radioactive materials especially b1 the event of a Class 9 l
accident, will find their way into the river which flows into Saginaw Bay, the drinking water supply of the Midland-Saginaw area population.
The contention further urges that the staff's environmental impact statement for Hidland include consideration of Class 9 accidents.
At its September 10, 1980, prehearing conference, the Board gave Mr. Marshall the opportunity to clarify his contention.
In response to the Chairman's questioning, Mr. Marshall referred to the soil compaction matter, the cooling pond dike, and the diesel generating system (Tr. 363-368).
He also stated, however, that his August 27 filing concerned "several jurisdictional problems" (Tr. 361), was "more elaborate" than the narrow OM proceeding (Tr. 363), and "incorporateld] here all of the various things that are wrong with this complex to begin with" (Tr. 366),
__2./
}FOOTHOTE CONTINUED FROM PpFIIOUS PAGI:)
legal writing and advocacy, we note that he is appearing i
pro se.
Taking that fact into consideration, we think the Eore appropriate course is simply to make due allowance for any. inadequacies in his papers.
1
g.
. s.
In view of these _ statements and the August 27 contention itself, we believe that the real gist of Mr. Marshall's centention is his concern about the possibility of a Class 9 accident that might result in contamination to the Midland 3/
water supply.
This' contention, if admitted, would have improperly expan'ded the very narrow scope of the OM proceeding.
Thus, that reason, more than the lack of specificity, supports the Board's rejection of the contention.
Although our principal basis for rejecting Mr. Marshall's contention differs from that of the Licensing Board, we fully agree with its separate, alternative ground for rejection --
' untimeliness (slip op. 12 n.6).
Mr. Marshall filed his con-tention almost two weeks after the August 14, 1980, deadline explicitly set in the Licensing Board's order of July 24, 1980.
He has offered no coherent or plausible excuse for the delay and thus has failed to establish the requisite " good cause" 4/
and other factors set forth in 10 C.F.R.
s2.714.
3/
Comparison of the Marshall contention accepted in the
~~
OL proceeding with the one found inadmissible in the more limited OM proceeding is revealing.
The former contention (filed October 31, 1978) states:
"Present geological conditions, according to newspaper accounts, is [sicj causing the settling of the generator building at the Nuclear Power Plant site."
This shows that Mr.
Marshall could have framed a similar contention focusing on the soil settlement issue in the OM proceeding but instead chose to raise the very different Class 9 accident matter.
--4/
Since the order clearly set the time for filing con-tentions, Mr. Marshall is precluded from arguing that, as a pro se litigant, he had dif ficulty in interpreting the Commission's rules and time limits for filing.
l
)
e-
=.
Insofar as it rejected Mr. Marshall's only contention and thereby denied his petition for leave to intervene, the5/ -
Licensing Board's October 24, 1980, order is affirmed.
It is so ORDEFID.
FOR THE APPEAL BOARD O __ b a M3 C. JQ n Bisnop
\\
Secretary to the Appeal Board Dr. Buck did not participate in this order.
5/
Mr. Salzman is of the view that the Board's denial of intervention for want of the requisite specificity in the only contention prof fered is an additional ground for affirmance.
__