ML19261B588
| ML19261B588 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 02/02/1979 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| ISSUANCES-SP, NUDOCS 7902280243 | |
| Download: ML19261B588 (8) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE CCMMISSION 2
THE COMMISSION:
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Joseph M. Hendrie, Chairman IM
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Victor Gilinsky "I
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Richard T. Kennedy g
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John F. Ahearne
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In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329
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50-330 Midland Plant, Units 1 and 2
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(Special Proceeding)
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MEMORANDUM AND ORDER On November 7. 1977 an Atomic Safety and Licensing Board was established in this docket to preside over a special proceeding. The proceeding, in the nature of disciplinary matters, was required by 10 CFR 2. 713(c).
The Chaiman of the Atomic Safety and Licensing Board for the special proceeding (Special Board) forwarded to the Commission by letter of March 21, 1978 a pleading antitled " Motion and Stipulation", dated March 13,1978, which was executed by counsel for each party in the special proceeding and described the tems and conditions of a proposed settlement.
The Board stated that in its view the proposed settlement was deserving of our consideration.
In essence all of the parties agreed to a settlement which would insofar as is possible place all parties and the record in the position 7902280243 G
2 they would have been if nothing had ever happened in this matter.
The terms withdraw all charges and would have terminated the proceeding with prejudice.
They further provided that (1) there would be no record of the proceedings nor of the charges and letters which led to them, and (2) notice of withdrawal of charges and termination of the proceedings would be published and also sent to all parties with whom there had been correspondence about the proceedings. These features of the proposed settlement seemed to us to be straightforward and worthy of Commission approval, and we so advised the Special Board in our letter of April 28, 1978.
However, the final term of the settlement was unilateral in nature and stated that one party entered into the stipulation only on the condition that the Nuclear Regulatory Commission pay actual out-of-pocket expenses not in excess of $1,000 incurred by or on behalf of that party in connection with the Special Proceeding. We found this final term to be unacceptable, and so informed the Special Board. We stated:
An agency of the government is not as free as a private party to deal in a settlement.
There is a serious question whether the Commission has the legal authority in these circumstances to make [such a payment]. Were the Commission disposed on policy grounds, to make this payment, the question of its authority to do so would first have to be resolved in the affirmative by the Comptroller General. We need not, however, seek a formal ruling of the Comptroller because we believe that the proposal for payment is unsound on policy grounds.
On June 7,1978 the Chairman of the Special Board wrote to the Commission to notify the Commission of the status of the settlement
3 effort.
In essence, the party who had earlier required payment of expenses stated a willingr.ess to settle without such payment provided that the Comission requested an opinion of the Comptroller General with respect to the Comission's authority to make such a payment and the Comptroller General replied in the negative.
After consideration of this new development, the Comission on August 30, 1978 addressed a letter to the Comptroller General which stated as follows:
The Nuclear Ngulatory Comission has received a request, accompanying a proposal for Commission approval of a settle-ment of a special proceeding, that the Comission seek an opinion from the Comptroller General with respect to the following question:
In connection with the termination and settlement of a special proceeding brought to investigate charges against a private attorney and NRC staff attorneys, which temination and settlement results in a withdrawal and striking of all charges against all such attorneys, does the NRC have authority to reimburse a maximum of $1,000 in actual out-of-pocket expenses incurred on behalf of the private attorney in connection with such proceeding, when the NRC has paid all fees and expenses of the staff attorneys in connection with such proceeding, and the NRC believes that the withdrawal, settlement and tennination of the proceeding is in the public interest?
The Comission hereby requests such an opinion.
On January 10, 1979, the Comptroller General issued his decision in this matter:
B-192784, "Reimbursemant by Federal Agency of Private Attorney for Out-of-Pocket Expenses in Agency Proceeding." The
4 Comptroller General's conclusion stated:
In sum, a see no basis on which the NRC can reimburse the private attorney for out-of-pocket expenses in connection with the special proceeding brought to investigate miscon-duct charges.
Opinion, p. 2.
This response in the negative from the Comptroller Ceneral satisfied the condition of the party, and by the terms set forward by the parties a settlement agreement of all the parties has resulted. The Commission approves the settlement and specifically approves and orders the imple-mer.tation of tenns one through eight of the Motion and Stipulation of March 21, 1978 as follows:
1.
all motions listed in Appendix A of the Motion and Stipulation of the Parties of March 21, 1978 and all pleading, motions, requests and applications in this Special Proceeding are deemed withdrawn with prejudice; 2.
til documents submitted in connection with the proceeding In the Matter of Consumers Power Company (Midland Plant, Units 1 and 2), Docket Nos.59-329, 50-330 and all parts of the trans-cripts of the hearing thereon which are listed in said Appendix A are stricken from the record in that proceeding; 3.
all orders and memoranda in connection with the above-mentioned proceeding listed in Appendix B of the Motion and Stipulation of March 21, 1978 are stricken from the record in that proceed-ing, and all charges against any party to said Motion and
5 Stipulation contained in any such order or memorandum and referred to the Special Board, or filed with that Board are dismissed with prejudice and may be considered to have no effect as if such charges had not been brought; 4.
this order shall serve to issue notice to the effect that all orders and memoranda listed in said Appendix B are stricken and that-charges contained therein have been dismissed with prejudice; 5.
all documents submitted by the parties in connection with the proceeding before the Special Board, all orders by that Board, all correspondence by that Board and all transcripts of any proceeding thereof shall be stricken from the record and the record of the Special Proceeding shall be stricken in its entirety; 6.
the Special Proceeding is hereby terminated;.
7.
the t!uclear Regulatory Conmission or appropriate members of its staff shall furnish notice containing the language set forth in Appendix C of said t'otion and Stipulation of March 21, 1978 to all persons to whom the Commission or any member of its staff dissemint :ed any letter, press release, document or any other information, describing, concerning or relating to the Special Proceeding or any matters at issue therein, informing all such persons of the disposition of the proceeding; and
6 8.
the Nuclear Reaulatory Commission or appropriate members of its staff promptly shall provide counsel for the party specified in term 8 of said Motion and Stipulation with copies of all written communications by the Commission or its staff with third p::rsons, other than parties to this proceeding or their counsel, describing, concerning or relating to the Special Proceedinc or any other matters at issue therein.
FOR THE COMMISSION
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r SAMUEL J %K Secretary of Dated at Washington, D.C.
February 2,1979.