ML19329E201
| ML19329E201 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/13/1974 |
| From: | Kauper T, Levin M, Saunders J JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006110566 | |
| Download: ML19329E201 (5) | |
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UNITED STATES OF AMERICA 6'
4, 000EETED BEFORE THE k
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'D CONSUMERS POWER COMPANY Docket Nos. 50-329A (Midland Plant,. Units 1 and 2)
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50-330A RESPONSE OF THE DEPARTMENT OF JUSTICE TO Tile BOARD'S AUGUST 19, 1974 ORDER The Department of Justice hereby files this response to the Board's August 19, 1974 Order.
In that order, the Board requested the assistance of the parties in making a determination in regard to the appointment of a third board member to fill tne vacancy caused by the death of Jerome Garfinkel.
Unfertunately, we have found no authority which is dispositive of this question.
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Moreover, the AEC Rules of Practice do not clearly
. resolve the problem.
Rule 2,704, section (d) speaks to the question, but only lists several opt, ions the Board may follow.
The rule states that if a presiding officer becomes unavailable af ter the hearing has been concluded, the Com-mission may (1) designate another presiding officer to make the decision, (2) direct the record be certified to the 80 06 n0 Ed6 M
wa e
e Commission or the Atomic Safety and Licensing Appeal Board for decision, or (3) designate another presiding officer.
While the meaning of the language of alternative (3) above
.is not entirely clear, we believe that it'may be read to.
mean that t'he Board may appoint one of the remaining two members of the Board as the presiding officer and that a two-man board can then proceed to decision.
To read that provision otherwise would make it redundant of alternative (1).
Rule 2.721 also is relevant to this determination.
Section (b) of tha.t rule states that the Commission may designate an alternate to replace a member of the board who becomes unavailable before the commencement of the pro-ceeding.
Section (d) of the rule states that two members of a board constitute a quorum.
Since the rules make no provision for the appointment of an alternative to the board after the commencement of the proceeding, but do state that two board members constitu're a quorum, they imply that the hearing may properly proceed without the appointment of a third member.
While 'an opposite reading of the rules can arguably be made, we believe proceeding with a two-man board under these circumstances is consistert with sound public policy. 1/
/ We express no view as to the appointment of a third member when a vacancy occurs at a somewhat earder stage of a proceeding.
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To appoint a third member to the board is only to invite delay in this crucial proceeding of first impression.
A third board member would have to read the entire record in this proceeding which amounts to nearly 10,000 pages of testLaony, in addition to numerous exhibits, briefs, board orders, prehearing transcripts, depositions, etc.
All of this would have'to be done by a board member who would come into the proceeding at this late date totally unfamiliar 1
with the case.
The extreme burden this wouid entail for any new board member could only result in unnecessary delay, which' all parties to this proceeding deplore.
In conclusion, (1) the AEC Rules of Practice allow the Board to proceed without the appointment of a third board member, and (2) in order to prevent further delay of this already protracted proceeding, the board should proceed to decision without the appointment of a third member.
Respectfully submitted,
/21a+4 A7
,[ <ub THOMAS E. KAUPER MARK M. LEVIN Assistant Attorney General A ttorney Antitrust Division Department of Justice JOSEPH J. SAUNDERS Attorney Department of Justice Date:
September 13, 1974 O
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UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of Docket Nos. 50-329A CONSUMERS POWER COMPANY 50-330A (Midland Plant, Units 1 and 2)
)
CERTIFICATE OF SERVICE
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I hereby certify that copies of PESPONSE OF THE DEPARTMENT OF JUSTICE TO THE BOARD'S AUGUST 19, 1974 ORDER, dated September 13, 1974, in the above-captioned matter have been served on the following by deposit in the United States mail, first class or air mail, this 13th day of Septe.5ber, 1974:
Honorable Hugh K. Clark William W. Ross, Esquire 4
Atomic Energy Commission Keith S. Watson, Esquire Post Office Box 127A Wald, Harkrader & Ross Kennedyville, Maryland 21645 1320 Nineteenth Street, N.W.
Washington, D.C.
20036 Honorable J. Venn Leeds, Jr.
Atomic Energy Commission Harold P. Graves, Esquire Pos t Office Box 941 Vice President and General Houston, Texas 77001 Counsel Consumers Pouer Company Atomic Safety and Licensing 212 West Michigan Avenue Board Panel Jackson, Michigan 49201 U. S. Atomic Energy Commission Washington, D.C.
20545 Robert A. Jablon, Esquire James C. Pollock, Esquire
. Chairman, Atomic Safety and Spiegel and McDiarmid Licensing Appeals Board 2600 Virginia Avenue, N.W.
U. S. Atomic Energy Commission Washington, D.C.
20037 Washington, D.C.
20545 Joseph Rutberg, Esquire Mr. Abraham Braitman, Chief Benjamin H. Vogler, Esquire Office of Antitrust and Indemnity Antitrust Counsel for AEC i
U. S. Atomic Energy Commission.
Regulatory Staff Washington, D.C.
20545 U. S. Atomic Energy Commission Mr. Frank W. Karas, Chief Public Proceedings Branch Office of the Secretary of the Commission U. S. Atomic. Energy Commission Washington, D.C.
20545 J
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Honorable Frank Kelly
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Attorney General State of Michigan Lansing, Michigan 48913
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MARK M. LEVIN Attorney Department of Justice e
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