ML19330A260

Motion Per 10CFR2.713 & 10CFR2.718 Taking Appropriate Actions & Sanctions Against NRC & J Tourtellotte & M Grossman.Submits That NRC Did Not Conduct Independent Analysis of CPC Submittals.Proof of Svc Encl

ML19330A260
Person / Time
Site:	Midland
Issue date:	05/16/1977
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, MAPLETON INTERVENORS, Saginaw Intervenor
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007151060
Download: ML19330A260 (7)

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UNITED STATES OF AMERICA p. 3

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NUCLEAR REGULATORY COMMISSION c I.iAY 2 01977 >

Before the Atomic Safety aryd Licensing Board T;U!.NYY

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In the Matter of 5]n/w

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) Docket Nos. 50-329 CONSUMERS POWER COMPANY ) 50-330

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(Midland Plant, Units 1 and 2) )

MOTION PURSUANT TO 10 C.F.R. 2.713 AND 10 C.F.R. 2.718 TO TAKE APPROPRIATE SANCTIONS AND ACTIONS AGAINST JAMES TOURTELOTTE AND MILTON GROSSMAN, AND THE REGULATORY STAFF __

Intervenors other than Dow Chemical Company hereby move the Board pursuant to the Rules of Practice for the entry of an Order j 1

issuing appropriate disciplinary senctions against lawyers James Tourtelotte and Milton Grossman, as well as the Regulatory Staff who has participated in this proceeding on the grounds that such l

persons' individual and collective conduct represents contumacious action before this Board and on the further ground that the failure to take action will specifically permit lawyers Tourtelotte and Grossman and the Regulatory Staff members who participated in this

. case to continue their conduct to the detriment of the public interest and the regulation of nuclear power.

More specific grounds for this Motion are as follows:

1. Upon the commencement of these suspension proceedings (and even before), the Regulatory Staff has been bowing to political resolutions to safety and environmental problems and has been unwilling to take any action, no matter how necessary, which could adversely affect Consumers Power Company's license to construct the Midland facility; 80071510dO h

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2. At least from the inception of these proceedings the Regulatory Staff, cor:trary to their obligations under the Atomic Energy Act, has failed and refused to do an independent investiga-tion, but rather has relied totally and completely u~pon submissions of Consumers Power Company. All of these submissions were accepted without any underlying analysis and in no instance, prior to the initiation of these proceedings, did the Regulatory Staff make re-quired field trips to verify any information from Consumers Power Company, Dow Chemical Company, the Michigan Public Service Commission or any other of the entities whose information the Regulatory Staff relied upon;

3. As has been clear from the inception of these proceedings, the Regulatory Staff has failed to discharge its responsibility under the Atomic Energy Act and the record discloses that the. Regulatory Staff's failure of responsibility was at least in part in response to improper demands by Consumers Power Company to support the.f r license. In f act the record discloses that counsel for Consumers Power Company agreed to go to Washington, D. C. to prepare Mr. Brenner, a lawyer for the Regulatory Staff, for the proceeding to thus insure that the Regulatory Staff did not do the required independent review;

4. Regulatory Staf'_ f witnesses have admitted on cross-examination that _they did not do any independent examination but relied entirely upon Consumers _ Power Company's submissions. Worse yet, the record discloses that Mr. Crocker,'a witness for the Regula-tory Staff,. submitted sworn testimony to this proceedings which relied.upon unidentified trade magazines, including NUCLEONICS WEEK,

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as a basis for his sworn testimony. The record also discloses that the overall response of the Regulatory Staff was a political'determi-nation made by members of the Regulatory Staff to support Consumers Power Company's license because of the investment made by Consumers Power Company;

5. On several occasions, the Licensing Board itself called attention to the fact that the Regulatory Staff's analysis lacked independence and-as of this moment, the Regulatory Staff is doing a comparativa analysis of the documents in this docket and in rate filings befofe the Michigan Public Service Commission by Consumers Power Compary in an effort to ferret out further inco sistencies.

Yet the Regulatory Staf f did not do this on its own motion, but only after Intervenors pointed it out and then the Regulatory Staff embarked upon its investigation only reluctantly;

6. The record shows that notwithstanding th'e Court of Appeals' instruction that the Dow relationship be analyzed, the Regulatory Staff-totally avoided any initial inquiry into the Dow relationship.

We believe the Regulatory Staff failed to do this because they knew of the Dow problems as a result of having been " prepared" on that score by Consumers _ Power Company and thus_ decided to leave the matters quiet so the Regulatory Staff would not have to meet the issue; 4

7. As a result,-the Regulatory Starry's conduct in this proceeding has been in violation of the public trust which the Regula-tory Staff is obligated to uphold and such violation has been conscious;

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8.- When the total bankruptcy of'the Regulatory Staff's analysis came forward ^at the hearings, the Regulatory Staff attempted to " cover up"-their improprieties by making vicious and personal attacks _upon Intervenors' counsel who had exposed the Regulatory Staff's lack of independence. These attacks were planned, we believe, at high. levels in Washington in an effort to cast a spotlight away from the Regulato-"' Staf f and intimidate Intervenors and their lawyer.

Spearheading these improper and vicious attacks were lawyers represen-ting the Rogulatory Staff, James Tourtelotte and Milton Grossman;

9. In further implementation of this scheme of--improper and contumacious conduct, lawyers Tourtelotto and Grossman filed sham motions seeking-the censure of Intervenors' counsel. Lawyers Tourtelotte and Grossman knew when they filed the censure motions that they were improper and were intended to aid the Regulatory Staff in its cover up of its breach of the public trust in these proceedings.

Yet notwithstanding such knowledge, lawyers Tourtelotte and Grossman knowingly filed, sham motions in these proceedings. While those sham motions are now the subject of a motion to strike, that is not a sufficient-sanction for the intolerable conduct which has occurred throughout t'his proceeding by the Regulatory Staff and lawyers Tourtelotte and Grossman, _all of whom have commited breach of their public trust in these proceedings; t.

10. ~ This Motion deals.with a most serious subject. The

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Regulatory Staff is honor bound to do analysis of nuclear power to

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h protect the.public health and safety. When the Regulatory Staff .,.

fails to do that, they call into serious jeopardy the lives of hundreds of thousands of people. Moreov.er, when such a lack of candor and honesty is aided and abetted by lawyers for the Regulatory Staffy the total impact can only be calculated to harm the public interest and the United States' overall energy policies; and

11. A prompt investigation must be initiated inquiring into why the Regulatory Staff did not do an independent analysis and why lawyers Tourtelot e and Grossman filed sham pleadings, in violation of their ethical and moral responsibilities, in order to launch a personal and vicous attack against Intervenors' counsel. We are informed ~and believe that such an investigation will disclose that political decisions by the Regulatory Staff regarding the Midland docket were made at the highest levels knowingly and consciously.

WHEREFORE, Intervenors move the Licensing Board for an Order disciplining the Regulatory Staff who participated in these proceedings and lawyers Tourtelotte and Grossman upon the grounds that they have willfully failed in their responsibilities to this proceeding and to the Hearing Board.and have done so k.owingly and consciously to cover up their deficiancies and their improper motives in making vicious and personal attacks upon Intervenors' counsel. Intervenors

.also seek an Order prohibiting the Regulatory Staff from man'.ng any further filings in this proceeding or the present lawyers from i

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-the Regulatory Staff from further participating in this p';oceeding '-

upon the grounds as stated in the above Motion.

Respectfully submitted,

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Attor 'e' fdr All Intervenorr/

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Dated: May 16, 1977 except w Chemical Compan MYRON M. CHERRY s One IBM Plaza Suite 4501 Chicago, Illinois 60611 (312) 565-1177 I

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PROOF OF SERVICE 1

l I hereby certify'that the foregoing Motion was served by mail on each l member of the Licensing Board, counsel for all parties, and the Docketing and Services Section of the Secretary of the Nuclear Regulatory Commiss'.on, by mailing, postage prepaid, properly addressed, on May 16, 1977.

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SERVICE LIST

.Frederic J. Coufal, Esq.. Chairman Atomic Safety & Licensing Board Panel

.U. S.= Nuclear Regulatory Commission Washington, D. C. 20555 Dr. Emmeth J. Luebke Atomic Safety & Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. J. Venn Leeds, Jr.

10807 Atwell

Houston, Texas Richard K. Hoefling, Esq.

U. S. Nuclear Regula tory Commission Washington, D. C. 20555 David J. Rosso, Esq.

R. Rex Renfrow, III, Esq.

Isham, Lincoln & Beale One First National Plaza Chicago, Illinois 60630 Mr. C. F. Stephens, Chief Docketing & Services Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Lee F..Nute, Esq.

Oow Chemical Company

! Midland Division Midland,-Michigan u --