ML19309E111
| ML19309E111 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point File:Consumers Energy icon.png |
| Issue date: | 03/10/1980 |
| From: | Leithauser J AFFILIATION NOT ASSIGNED |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19309E105 | List: |
| References | |
| NUDOCS 8004180402 | |
| Download: ML19309E111 (5) | |
Text
.
A
/Q'
~::..,.)
UNITED STATFS OF AMERICA
/ 2/
'., ?, ':23 (,
NUCLEAR REGULATORY COMMISSION
[~
~" -,:
BEFORETHEATOMICSAFETYAND__LICENSINGBOARD\\
pj' IN THE MATTER OF
)
f D,ocket No. 50-155 CONSUMERS POWER COMPANY (Big Rock Nuclear
[
Power Plant)
)
l BRIEF 0F JOHN LEITHAUSER ON THE NEED FOR POWER ISSUE It is our contention that the Board is bound by consti-tutional requirements of due process and the need to expedite and economize in litigation by permitting parties interested in the subject matter to adjust the matter in one instead of several actions.
The fundamental or essential requirements of procedural due process of law is notice and hearing, i.e. opportunity to be heard, either before a court or the administrative agency.
It is generally held that in the exercise of their adjudicatory powers, administrative agencies may not deprive, nor may a statute empower them to deprive, a person of his consitutionally protected rights of life, liberty, and property g
Franklin v. Dorsey-Jackson Chev. Co. 246 Ala. 245 2_/ Wong Yang Sung v. McGrath 339 U.S. 33: Market Street Rail co. v. Railroad Comm. 324 U.S. 54B 800o so //oa l
-__ __ i Y which is adequate and fair.
without notice and hearing Nor may he be thus deprived of any right granted him by i
statute.
I The question of what constitutes a fair hearing is well l
established in our legal system.
The.most important elements of a fair hearing,are a hearing which is adequate in scope and extent before an impartial tribunal.
It is often said that the Constitution guarantees the right to a full hearing.5/
Specifically, due process in the exercise of adjudi-catory powers requires an orderly proceeding appropriate to the case,W or adopted to its nature, just to the parties affected, one in which a person has an opportunity j
to be heard and to defend, enforce and protect his rights.E!
In administrative proceedings of a judicial nature, the liberty and property of the citizen must be protected by the observance of the rudimentary requirements of fair play.
The requirement of a full hearing,means one in which 3/
Slochower v. Board of Education 350 U.S. 551, Kwong Hai Chew v. Colding 344 U.S. 590 4_/
Parker v. Board of Barber Exminers La. App. 84 So. 2nd 80 5/
E.C. Olson Co. v. State Tax Comm.109 Utah 563: Crow v.
Industrial Comm. 104 Utah 333 Japanese Immigrant f/
Kwong(Hai Chow v. Colding 344 U.S. 590:
Case Yamataya v. Fisher) 189 U.S. 86 2/
Parker V. Board of Barber Examiners La. App. 84 So 2nd 80 f
8,./
Hager v. Reclamation Dist. 111 U.S. 701: People v. Skinner 18 Cal. 2d 349 9/
Randall v. Patch 118 Me. 303: Kuntz v. Sumption 117 Ind 1 19./ F.C.C. v. Pottsville Broadcasting Co. 309 U.S.134:
%m
l l i l
ample opportunity is afforded to all parties to make, by i
evidence and argument, a showing fairly adequate to establish the propriety or impropriety, from the standpoint of justice and law, of the steps to be taken.
Furthermore, due process must obtain in the initial detemination itself and a subsequent judicial remedy should not be rei.ied upon by the agency to inject fairness into the agency decisional process, especially in complex matters deserving specialized attention.
Intervention is a creature of our traditional legal system, borrowed from ecclesiastica equity courts.
The purposes of the procedure are to protect the interests of those who may be affected by the judgement, to avoid delay, circulty of actions and multiplicity of suits and to expedite and economize in litigation by permitting parties interested in the subject matter to adjust the matter in one instead of several suits.
_1_1/ New England Divisions Case ( Akron, C & Y R. Co. v. U.S.
304 U.S.1 1_2_/ Fifth St. Pier Corp. v. Hoboken 22 N.J. 326 l
.13/ County of San Bernardino v. Harsh Cal. Corp. 52 Cal.
(
2d 341
_1)_/
Franklin v. Dorsey-Jackson Chevrolet Co. 246 Ala. 245 I
I
l !
A statute conferring the right to intervene, being remedini is to be liberally construed to permit broad 15! n light of the facts and circumstances i
intervention of each case, in order that a complete and equitable 15!
n one action and thus i
determination may be effected j
f prevent unnecessary litigation.12!
Thus it is held that federal intervention rules, are abviously tailored to fit i
ordinary civil litigation, and they require other than l
literal application in atypical cases, such as administrative cases.1E! It is said that federal intervention rules are a crystallization of a principle of equity jurisdiction, that equity jurisdiction persists as to situations not specifically covered by the rule, and that alternately, the same result can be reached by a broad reading of the rule.12!
It is our contention that consitutional requirements of due process, as well as the obvious advantages to all parties of adjudicating this matter without resort to judicial 15/ Wert v. Burke 47 Ill. App. 2d 453: Duncan v. National Tea Co. 14 Ill. App. 2d 280 15/ Rutherford v. Union Land and Cattle Co. 47 Nev. 21 12/ Kozak v. Wells 278 F 2d 104: Wellman v. Hawkeye Security Ins. Co. 250 Iowa 591 ljb/ Nuesse v. Camp 128 App. D.C.172 12/ Nuesse v. Camp
. review, or a multiplicity of other actions,(such as before the Michigan Public Service Commission), require the Atomic l
Safety and Licensing Board to consider the need for power at Big Rock Nuclear Plant.
When a proposed licensing amendment, if granted, would allow experimental facilities in unsatisfactory condition, run by a company with experientially ES!
o continue to operate, and ine. fact operate bad judgement t
under conditions of increased stress brought about by the licensing amendment, it is a denial of due process to fail to consider intervenors' contentions that the risks of continued operation outweigh any benefits which might exist as a result of the plant being in service.
20/ Midland Plant, if completed in 1985 at a cost of 3 1 billion dollars (with a 1000% increase in projected final cost) will be the most expensive nuclear plant in the country, according to the Detroit News.
Respect
.ly submitted, eM/
John A. Lei $hn' user 350 Route One Levering, MI 49755 March 10, 1980 i
,