ML19330A240
| ML19330A240 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/29/1977 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-417, NUDOCS 8007151019 | |
| Download: ML19330A240 (11) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION gjif,m
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g Michael C. Farrar, Chairman 0)f
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O Richard S. Salzman
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C-Dr. W.
Reed Johnson
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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 & 2)
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Messrs. Milton J. Grossman, James R.
Tourtellotte and William J.
Olmstead for the Nuclear Regulatory Commission sta ff.
Mr. Myron M.
Cherrv, Chicago, Illinois, for t.'.e intervenors Saginaw Valley Nuclear Study Group et al.
i Mr. L. W. Pribila, Midland, Michigan, for the i.
Dow Chemical Company.
i MEMORANDUM AND ORDER June 29, 1977 THIS DOCUMENT CONTAINS g
POOR QUALITY PAGES (ALAB-417)
!i In this proceeding on remand from the court of i
appeals-- I the NRC staff moved on March 25, 1977 to censure
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the attorney representing certain intervenors for what it deemed unwarranted personal attacks upon staff counsel.
.I J/ See Aeschliman v. NRC, 547 F 2d 622 (D.C. Cir. 1976),
certiorari ctranted,, sub nom. Consumers Power Co. v.
Aeschliman, 45 U.S.L.W.
3570 (February 22, 1977).
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The Board neither acted nor explained its reasons for not doing so, even though the staff renewed its motion three times: twice orally during the course of the hearing and once in writing.-2/
On June 6, 1977, the hearing having been ' concluded without Board action on the censure motion, the staff came to us with a motion for directed certifica-tion.
Invoking the principle that "a protracted withhold-ing of action on a request for relief may be treated as tantamount to a denial of the request," 1/ the staff main-tained that our intercession was needed.
We were told that-intervenors' counsel continued in the course of conduct to which the censure motion was addressed, and that the Licensing Board's failure to act "is prejudicial to the q
, rights of individual Staff Counsel" and also has public j
l interest implications.
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~~2/ See, Tr. 5220-24; 5849; and NRC Staff's Response to
.q Interv.enors ' Motion to Strike Certain Pleadings, dated
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May 20, 1977.
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_3,/ Detroit Edison Co. (Greenwood Energy Center, Units 2
-l and 3), ALAB-376, 5 NFC 426, 428 (1977), citing Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1099 (D. C. Cir. 1970).
We note that in respond-t ing to the staff's certification motion, counsel
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against whom that sanction was sought to be imposed r
also invoked that principle, informing us that, in his view, "the Licensing Board has by its inaction denied 4
the S taff 's motion * **. "
Intervenors'. Response to NRC Staff's Motion for Directed Certification, p. 3 (June 14, 1977).
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. In light-of the staff's directed certification motion, the-Licensing Board issued a memorandum on June 15 in order to place in "the public record some of its reasons for deferring rulings" on all disciplinary matters, which it considered to be secondary to the " main issue" before it; viz., whether construccion of the Midland facility should be suspended.
The Board opined that both the public and the private interests involved required its concentration to be focused initially on the suspension issue and empha-sized that time to research the questions presented by the staff's censure motion could only have been purchased at the expense of delaying the suspension hearing.
It went on to stress, however, that it was " conscious * *
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, seriousness of the matters involved in this motion for censure", and that as soon as it issued its decision on suspension, "all matters involving conduct of attorneys" would be " resolve [d] promptly".
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We note at the outset our conviction that the q
-i Licensing Board should have revealed far earlier than it did its decisicn to withhold action on the censure motion.
The staff u.eiously considered there to be an i
imperative need for a prompt ruling and made repeated 9
endeavors to obtain one; all were met with silence on the
part of the Board.
Not until the staff sought to elicit our assistance through the vehicle of its directed certifi-cation motion did the Board below disclose it had no inten-tion of disposing of the censure motion before rendering
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its decLaion on the merits of the case -- a decision appar-ently still some time in the offin'g.
We do not suggest that a licensing board (any more than an appeal board) must always act promptly upon a
. request for relief or undertake some elaborate explanation why it had not done so.
But when a board decides to defer
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ruling indefinitely on issues of the stripe pre,ented by the censure motion, considerations of simple fairness require that all parties be told of that fact.
Whether dua Licensing Board here had good reason to put the censure motion on the shelf or not, the staff's concerns regarding w
the lack of action on it were reasonable.
Certainly after
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tion, it warranted at the least some form of acknowledgment 1
1 and response.
i It might be added that if the Board had made its pur-l pose known earlier, the burden since imposed upon both it y:.
and ourselves might well have been avoided.
Indeed, no motien for directed certification might have been forthcoming i
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. had.the staff-been seasonably told why the censure motion remained sub judice.
Beyond that, in its June 15 memoran-dum the Board complains that "[w]riting this Memorandum has ta' en time which would have been.better spent deciding the suspension issue. "- But an oral announcement from the bench during the hearing that the ruling on the censure motion was being deferred (coupled with a brief summary of the underlying reasons) might well have obviated the need to take the time to prepare any formal memoranda at all, including this one.
=n 2.
As we read the staff's papers, it would have us decid'e the merits of the censure motion.
However, what is alleged by the staff to be deserving of reprimand is j
counsel's conduct during the course of the Licensing Board proceedings.
In such circumstances, the question whether formal reproof is in order or not is manifestly one,for that Board to pass judgment on in the first instance.
1 Because of this consideration, the most that the staff might have obtained from us would have been an instruction to the Licensing Board to rule on the censure motion with dispatch.
There are several factors, however, which persuade g
us that even that limited relief now should be withheld.
- First, we are disinclined to second-guess the Board below i
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. on the relative priorities attaching to resolving the issue of construction suspension and to ruling on the censure motion.
Although we are uncertain precisely why deciding the latter would require that substantial time be spent in "[t]he definition of issues and research," the Licensing Board thinks that this'.will prove necessary.
Because that Board must make the decision, its judgment about the time it might need to spend on the matter must be accepted.
Secondly, the necessity.for an expeditious ruling on the censure motion has been overtaken by events.
The trial proceedings on the suspension issue are over and opposing counsel ~are otherwise engaged.
Consequently, little if any additional harm is likely to be sustained by a continued
' deferral of action on the censure motion pending decision on the suspension issue.
The Licensing Board has committed itself to a prompt resolution of the motion as soon as that decision is rendered -- a commitment which we have no doubt
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will be honored.
3.
Although sympathetic to the concerns which prompted the motion for directed certification, we are constrained to deny it for the reasons' just explained.
We note that the Licensing Board has before it not only the censure motion but a number of similar pleadings filed by other I-
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Some observations of more general applicability are therefore in order.
A cursory examination of the transcript of the eviden-tiary hearings reveals that there passed between counsel more than a few exchanges of a personal character and dubious-propriety.
Whether, and if so to what degree, the b
y Code of Professional Responsibility has been offended is for the Licensing Board to decide.
But it is appropriate w
to record now our impression that what transpired scarcely 1
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enhanced the proceedings.
For want of a greater familiarity
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with the record, we are unable to say who' was at fault.
f N.either are we in a position now to judge whether adequate on-the-spot efforts were made to curtail if not cut off those affronts to the dignity of the proceedings.
But it l
F should be needless to add that the obligation to make such I
efforts exists.
And it exists regardless of whether a d
5ard has been formally asked to take disciplinary action or, if so, whether the board decides for some reason to hold that request temporarily in abeyance.
We close with the reminder that Commission regulations not only empower l
the licensing boards to "[r]egulate the course of the hear-ing and the conduct of the participants" in the interest of insuring a fair, impartial, expeditious and orderly
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- .e adjudicatory process -- they impose a duty that this be done.
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Motion for certif-ication denied.
It is so ORDERED.
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FOR THE ATOMIC SAFETY AND LICENSING APPEAL BOARD l61 on */
D i,in MaTgaret E. Du Flo
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Secretary to the Appeal Board
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UNITED STATES OF AMERICA NUCl EAR REGlil.ATORY CO>041SSION In the Matter of
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CONSUMERS PO'.!ER COMPANY T
Docket No.(s) 50-329
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50-330 (Midland Plant, ' Units 1 and 2)
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CERTIFICATE OF SERVICE 4
'I hereby certify that I have this day served the foregoing decur.mnt(s) upon cach person desir,nated on the officici service list compiled by the Of fice of the Secretary of the Cornission in this proceeding in accordance with the requirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nucicar Ec;ulatory Cormission's Rules and Regulations.
i Dated a t'a sh ington, '
C. this day (
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ffice of ac Secretary 1 'the Co:rmiss jon-e
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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In the Matter of
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CONSUMERS POWER COMPANY
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Docket No.(s) 50-329
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50-330 (Midland Plant, Units 1 and 2)
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SERVICE LIST
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Frederic J. Coufal, Esq., Chairman
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Atomic Safety and Licensing Board F
U.S. Nucicar Regulatory Commission Washington, D.C.
20555 Dr. Emmeth A. Luebke James A. Kendall, Esq.
Atomic Safety and Licensing Board Currie and Kendall U.S. Nucicar Regulatory Commission 135 North Saginaw Road Washington, D.C.
20555 Midland, Michigan 48640 Dr. J. Venn Leeds, Jr.
Judd L. Bacon, Esq.
10807 Atwell Consumers Power Company Houston, Texas 77096 212 West Michigan Avenue L
Jackson, Michigan 49201 Office of the Executive Legal Director Counsel for NRC Staff William J. Ginster, Esq.
U.S. Nuclear Regulatory Commission Merrill Building, Suite 4 Washington, D.C.
20555 Saginaw, Michigan 48602 t
Myron M. Cherry, Esq.
One IBM Plaza
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Chicago, Illinois 60611 Harold F. Reis, Esq.
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Lowenstein, Newman, Reis & Axelrad Honorable Curtis G. Beck 1025 Connecticut Avenue, N.W.
Assistant Attorney General Washington, D.C.
20036 State of Michigan Seven Story Office Building Honorable Charles A. Briscoe 525 West Ottava Assistant Attorney General Lansing, Michigan 48913 State of Kansas Topeka, Kansas 66612 Lee Nute, Esq.
Michigan Division Irving Like, Esq.
The Dow Chemica: Company g.
Reilly, Like and Schneider 47 Building I
200 West Main Street Midland, Michigan 48640 Babylon, New York 11702
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50-329, -330
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POS2 2 Anthony Z. Roisman, Esc.
Natural. Resou'rces Defense Council j
917 - 15th Street, N.W.
Washington, D.C.
20005 Joseph Gallo, Esq.
Isham, Lincoln & Beale 1050
-17th Street, N.W.
Washington, D.C.
20036 David J. Rosso, Esq.
R. Rex Renfrow, III, Esq.
Isham, Lincoln & Beale One First National Bank Plaza Chicago, Illinois 60603 Ms. Mary Sinclair 5711 Summerset Street Midland, Michigan 48640 Mr. Steve Gadler, P.E.
2120 Carter Avenue St. Paul, Minnesota 55108
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Grace Dow Memorial Library 1710 West St. Andrew Road Midland, Michigan 48640 P
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