ML20058J013
| ML20058J013 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/03/1982 |
| From: | West A CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8208090137 | |
| Download: ML20058J013 (8) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 0
Before the Atomic Safety and Licensing Boar $2 jgj pg jg jg
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In the Matter of
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Docket Nos. 50-329-OM "E
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50-330-OM
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50-329-OL (Midland Plant, Units 1
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50-330-OL and 2)
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APPLICANT'S MOTION TO STRIKE MS. SINCLAIR'S CONTENTIONS 28-50 Consumers Power Company (" Consumers Power")
pursuant to 10 CFR S2.714, requests that the Atomic Safety and Licensing Board
(" Licensing Board") strike Contentions 28-50 submitted by Intervenor Mary Sinclair.
BACKGROUND On February 23, 1979, this Licensing Board in its'Special Prehearing Conference Order admitted Mary Sinclair's contentions 28-50-1/ for purposes of discovery, even though the Board found that many were "not sufficiently specific."
Id. at 11.
The Board provided that:
Upon completion of discovery, the Intervenor will be required to restate the contentions she proposes to continue to pursue, in each instance omitting arguments but setting forth sufficient specificity and detail to demonstrate applicability to this proceeding and to permit the other parties to prepare responsive testi-mony. - After opportunity for response by the t
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Consumers Power is moving to strike the Sinclair contentions which are numbered 28-50 in the Special Pre-hearing Conference Order.
(see p.
10 fn. 3 of Special Prehearing Conference Order.)
These same contentions are numbered slightly differently in the " Contentions of Inter-venor Mary P.
Sinclair", filed October 31, 1978 and the
" Discovery Questions of Mary P.
Sinclair", filed June 18, 1982.
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other parties, the Board will make final deter-mination of the admissibility.
Id. at 11-12.
In its Memorandum and Order (Telephone ~ Conference Call of May 5, 1982) issued on May 7, 1982 ("May 7, 1982 order"),
this Board reiterated that its certain of Ms. Sinclair's contentions had been admitted "for discovery purposes only" and permitted her to submit rewritten contentions following discovery. (May 7, 1982 order at p. 2).
The Board then adopted a schedule "to encourage the submission of such [new or rewritten] contentions as soon as possible." -
(Id., at p.2). This schedule provided in pertinent part:
The last date for submission of new or rewritten contentions by all parties (including Ms. Stamiris) will be June 21, 1982.
The May 7, 1982 Order also provided that:
To the extent that an intervenor wishes to submit restated contentions following discovery, such restated contentions shall be submitted within 10 days after completion of each phase of discovery, as appropriate.
(These restated contentions would be further revisions of contentions submitted no later than June 21).
(Id., at p.
31 Ms. Sinclair filed discovery requests on her Contentions.
Consumers Power responded to all of Ms.
Sinclair's interrogatories by July 12, 1982.
Ms. Sinclair also submitted three document requests, to which consumers Power responded by July 26, 1982.
Only one of these document requests, No. 14 (c), specifically related to Contentions 28-50.
Despite the deadlines clearly set out in the May 7, 1
1982 Order, Ms. Sinclair has failed to submit any rewritten contentions clarifying her original Contentions 28 through 50.
ARGUMENT Ms. Sinclair's Contentions 28 through 50 should be stricken for failure to meet the deadlines for submission of rewritten contentions set forth in the May 7, 1982 Order, and for failure to meet the specificity and basis requirements of 10 CFR S2.714 (b).
This Board admitted Sinclair Contentions 28 through 50 only for purposes of discovery.
In so doing, the Board stressed that these contentions would be admitted for litigation only if they were rewritten with sufficient specificity to demonstrate applicability to the OL pro-ceedings.
The Board subsequently, in its May 7, 1982 Order established June 21, 1982 as the deadline for the submission of rewritten contentions.
Although this Board's May 7, 1982 Order stressed the importance of filing rewritten contentions as soon as possible and adopted a clear deadline for the filing of such contentions, Ms. Sinclair has let t
l the deadline pass and has resubmitted none of the conten-tions which the Board criticized for vagueness in its Special Prehearing Conference Order.
Even if the June 21, 1982 deadline were interpreted as having been modified by the provision of the 1
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May 7, 1982 Order permitting the filing of rewritten con-tentions 10 days after the applicable phase of discovery had closed, Ms. Sinclair has not met even this modified deadline.
Discovery closed for virtually all of Contentions 28 through 50 on July 12, 1982.
On that date, Consumers Power submitted full responses to all of the interrogatories submitted to it by Ms. Sinclair, thereby concluding dis-covery on all contentions, including Contentions 28 through 50.-2/
In accordance with the terms of the May 7, 1982 Order,
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The only possible exception might be Contention 35.
One subpart of Ms. Sinclair's Interrogatory No. 14, 14 (e), dealing with Contention 35,_was a document request.
Consumers Power responded to this document request on July 26, 1982.
Consumers Power believes, however, that the date of the response to the interrogatory rather than the date of the response to the document request should be conclusive in determining when the applicable phase of discovery ended for Contention 35.
As the Board explained in its Special Prehearing Conference Order, at p. 11-12, the purpose of permitting discovery on Contentions 28-50 was to permit Ms. Sinclair to restate these contentions with greater specificity and detail, in order to demonstrate their applicability to the Midland operating license proceeding.
None of the information requested in Document Request 14(e) was of aid in restating Contention 35 to make the general allegar'ons of that Contention more applicable to Midland.
(See " Response to Document Requests", at p. 1).
All the information and documentation necessary to restate the con-tention were provided in Consumers Power's six page July 12, 1982 response to Interrogatory No. 14, which described and documented the ways in which the generic issue outlined in Contention 35 was resolved at Midland.
Moreover, many of the documents requested in 14(e) had been provided earlier in Consumers Power's June 12, 1982, response (Response to Document Requests, at p. 1).
There is no adequate reason for holding that the applicable phase of discovery for Contention 3 closed on July 26 rather'than July 12, 1982.
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the deadline for the submission of rewritten contentions based on new information obtained during discovery then became July 22, 1982, 10 days after Consumers Power's response was filed.
Ms. Sinclair, however, filed no rewritten contentions by that date or in the weeks following the passing of the 3/
deadline.~
Ms. Sinclair's failure to submit rewritten versions of Contentions 28 through 50 in a timely manner precludes their admission as contentions in this proceeding.
Con-tentions 28-50 cannot be accepted as they now stand.
As the Board apparently conceded in its Special Prehearing Con-ference Order, at p.
11-12, these contentions do not set forth sufficient specificity and detail to demonstrate applicability to this proceeding and to permit other parties to prepare responsive testimony.
Lacking sufficient speci-ficity, these contentions must be stricken.
Gulf States Utilities Company, (River Bend Station, Units 1 and 2),
ALAB-444, 6 NRC 760, 771-2 (1977).
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In its Special Prehearing Conference Order, at Z
pp. 3 4, this Board also rejected Ms. Sinclair's Conten-tions 6 and 7, subject to rewriting and resubmission after discovery.
Ms. Sinclair has not submitted rewritten versions of these contentions at all.
Accordingly, they k
cannot be accepted as contentions in this proceeding.
CONCLUSION Accordingly, Consumers Power moves this Licensing Board to strike Ms. Sinclair's Contentions 28 through 50.
Respectfully submitted, I
-_ n OAu 5. LJ One of the Attorneys For CONSUMERS POWER COMPANY ISHAM, LINCOLN & BEALE Three First National Plaza Suite 5200 Chicago, Illinois 60602 (312) 558-7500 j
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e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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Docket Nos. 50-329-OM CONSUMERS POWER COMPANY
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50-330-OM
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50-329-OL (Midland Plant, Units 1
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50-330-OL and 2)
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CERTIFICATE OF SERVICE I, Anne E. West, one of the attorneys for Consumers Power Company, hereby certify that a copy of
" Applicant's Motion to Strike Ms. Sinclair's Contentions 28-50" was sent by Federal. Express to Mary P.
- Sinclair, Barbara Stamiris, Judges Bechhoefer, Decker, Harbour and Cowan, and William Paton, and by deposit in the United States mail, first class, to the remaining persons on the attached service list, this 3rd day of August, 1982.
M Anne E.
West f
SUBSCRIBED me tilisi 3 4gD SWORN before 3
day of August, 3
"1982. '.
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SERVICE LIST Frank J. Kelley, Esq.
Steve Gadler, Esq.
Attorney General of the 2120 Carter Avenue State of Michigan St. Paul, Minnesota 55108 Carole Steinberg, Esq.
Assistant Attorney General Atomic Safety & Licensing Environmental Protection Div.
Appeal Panel 720 Law Building U.S.
Nuclear Regulatory Comm.
Lansing, Michigan 48913 Washington, D.C.
20555 Myron M. Cherry, Esq.
Mr. C.
R.
Stephens One IBM Plaza Chief, Docketing & Services Suite 4501 U.S. Nuclear Regulatory Comm.
Chicago, Illinois 60611 Office of the Secretary Washington, D.C.
20555 Mr. Wendell H. Marsahll 4625 South Saginaw Road Ms. Mary Sinclair Midland, Michigan 48640 5711 Summerset Street Midland, Michigan 48640 Charles Bechhoefer, Esq.
Atomic Safety & Licensing William D.
Paton, Esq.
Board Panel Counsel for the NRC Staff U.S. Nuclear Regulatory Comm.
U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Washington, D.C.
20555 Dr. Frederick P.
Cowan Atomic Safety & Licensing 6152 N. Verde Trail Board Panel Apt. B-125 U.S. Nuclear Regulatory Comm.
Boca Raton, Florida 33433 Washington, D.C.
20555 Admin. Judge Ralph S.
Decker Barbara Stamiris Route No.
4, Box 190D 5795 North River Road Cambridge, Maryland 21613 Route 3 Freeland, Michigan 48623 Mr.
D.
F.
Judd i
Babcock & Wilcox Jerry Harbour P.O.
Box 1260 Atomic Safety & Licensing Lynchburg, Virginia 24505 Board Panel U.S. Nuclear Regulatory Comm.
James E.
Brunner, Esq.
Washington, D.C.
20555 Consumers Power Company 1
212 West Michigan Avenue l
Jackson, Michigan 49201 i
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