ML19331A282
| ML19331A282 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/15/1977 |
| From: | Coufal F, Leeds J, Luebke E Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8007160873 | |
| Download: ML19331A282 (9) | |
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION C.f'J BEFORE THE ATOMIC SAFETY AND LICENSING BOARD N l d 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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MEMORANDUM The Regulatory Staff has moved the Appeal Board for direct certification of a motion previously made to this Board for censure of Myron M. Cherry, Esq.
Just as the Board has consistently deferred ruling on other motions involving matters which are secondary to the main issue of
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suspension, the Board has deferred ruling on that motion.
The motion of the Regulatory Staff to the Appeal Board for direct certification compels this Board to place into the public record some of its reasons for deferring rulings on such secondary matters.
The Board's work in developiing findings of fact and writing the initial decision will assist the Board's ruling on these matters.
Preliminary research by the Board indicates that it is within the discretion of the Board to defer action on disciplinary motions if prejudice to the conduct of *.he THIS DOCUMENT CONTAINS 80 071608')3 h
POOR QUAUTY PAGES
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2 proceeding or to the public interest would occur.
(Sacher v.
U.S., 343'U.S.
1, 11, 96 L.Ed. 717, 724, 72 S.Ct. 451 (1951).)
This Board has been acutely concerned throughout the suspension hearing with the length of the hearing and its impact on the public interest.
The Aeschliman case was filed on August 6, 1973 and decided by the Court of Appeals on July 21, 1976.
Almost a year has passed since the Court remanded the case to the Commission.
For many reasons this Board has been unable to act on the suspension-of-construction issue.
Since 1973, work has progressed at the Midland site and now a substantial percentage of the 1.7 billion dollar project has been completed.
Work con-tinues.
One obvious result of the remand proceedings could be that the plant will not be completed.
If that result occurs, each added day.of construction contributes to a waste of resources to the detriment.of the public interest.
From the beginning, this Board believed that the public interest and the private interests involved in this case would best be served if action on secondary issues--
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3 no matter how important in and of themselves--was postponed until the main issue of suspension was determined.
Only if the Board decided that the record would be. incomplete, did the Board divert-the parties from the primary issue and require the parties to complete the record.
The Board has consistently followed this plan.
For example, the prep-aration of the " Temple" testimony involves issues of equal if not of significantly more importance than the views of an attorney with regard to the performance of the Staff and its attorneys.
The Board required the parties to complete the record on the preparation of the " Temple" testimony and then postponed action until the primary issue of suspension was decided.
a Preliminary research by the Board raises the question of how far trial counsel may go in his criticism of the Staff of a government agency in a case in which he is involved.
Some of these considerations are applicable here but to fully research the problem would delay the suspension hearing.
Furthermore, to grant the complete motion of Staff would mean that if the Staff felt that a repetition of the e
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alleged conduct had occurred, the Board would be required to automatically institute a proceeding pursuant to 10 CFR S 2.713.
The Board always has the right to instituta a 5 2.713 proceeding sua,sponte while it has jurisdiction over the remand hearings.
But any 5 2.713 proceeding against an attorney now sould only divert the parties from the main issue.
The pu*alic interest requires that the main issue of suspensioe be decided as soon as possible consistent with due process requirements and this Board has taken " pains to insure that parties are fully heard before substantial issues are decided against them". (In the Matter of Consolidated Edison Company of New York, Inc.
(Indian Point Station Unit No. 2), ALAB-399, Slip.0 pinion at p. 33, May 20, 1977. )
Thu motion for censure, filed March 25, 1977, came at a time when the evidentiary hearing was nearly finished.
The hearing did end on May 13 but only because the Board elected to receive some remaining evidence from all parties-by written submission and not by the~ appearance of witnesses.
Those submittals due on May 20 and on May 27 have been received.
The time for filing proposed findings is now running..Considering the size of the record, the number of
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exhibita, and the complexity of the issues, this sche'dule
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is most difficult.
The Board likewise has been~and'is on I
a difficult schedule resulting from this and other NRC
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hearings and'will be able to meet only one day in the y
coming two weeks.
Writing this-Memorandum has taken time which would have been better spent deciding.the suspension
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We are as conscious'as anyone of the seriousness of the matters involved in this motion for censure.and the various other. motions made under 10 CFR S'2.713.
.Such charges should b2 resolved as quickly as possible-consist-ent with other considerations.
We see-many questions.in these motions which require and deserve a substantial amount t
The 'iscussion above is neces-of' Board time to resolve.
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.1 sarily incomplete and not meant to be, of course, this Board's final answer.,The definition of issues and research has not been completed.
As soon as we issue our decision on suspension, we will resolve promptly all matters involv-ing conduct of attorneys.
It'is difficult to see how stopping now1to-devote our attencion to the censure question ~-
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or any other side issue can do anything but frustrate the public interest.
ATOMIC SAFETY AND LI NSING BOARD
{l Frederic J.
Coufal, Chqjirman s
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Emmeth A.
uebke, Member G
, p !y N:Nb'M'
'. Venn Leeds, Member Dated at Bethesda, Maryland, this 15th day of June, 1977.
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UNITED STATES OF Nght!CA NUCLCAR PIClit.ATOl:Y CO)0IISSIO::
'f In the Matter of
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CONSUMERS PO'4ER C011PANY
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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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CEftTIFICATE OF SERS.* ICE I have ti is day served the foregoing doeumant(s).N I hereby certify that upon cach person designated on the of ficial service lict compiled b ;
the Of fice of the Secretary of the Cornistion in this proceeding accordance with the requirc=ents of Section 2.712 of 10 CFR Part 2 -
Rules of Practice, of the Mucicar Regulatery Cornission's Rules and i
Regulations.
Dated,a
'o shington, D.C. th J
day of O 2 1.z-197 7.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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In the Matter of
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CONSUMERS. PO',ER 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 Frederic J. Coufal, Esq., Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Emmeth A. Luebke James A. Kendall, Esq.
Atomic Safety and Licensing Board Currie and Kendall U.S. Nuclear 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 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 Myron M. Cherry, Esq.
One IBM Plaza Chicago, Illinois 60611 Harold F. Reis, Esq.
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. Briscee 525 West ottawa Assistant Attorney General Lansing, Michigan 43913 State of Kansas Topeka, Kansas 66612 Lee Nute, Esq.
Michigan Division Irving Like, Esq.
The Dow Chemical Company Reilly, Like and Schneider 47 Building i 200 Weat. Matt Street Midland, Michigan 4C640 Babylon, Nes York 11702
50-329, -330
- w page 2-Anthony Z. Roisman,_Esa.
Natural. Resou'rces Defense Council 917 - 15th Strect, 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 Grace Dow Memorial Library 1710 West St. Andrew Road Midland, Michigan 48640 e
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