ML19331A283
| ML19331A283 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/14/1977 |
| From: | Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8007160874 | |
| Download: ML19331A283 (5) | |
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730 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD t
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In the Matter of
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Docket Nos. 50-329 CONSUMERS POWER COMPANY
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(Midland Plant, Units 1 and 2)
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INTERVENORS' RESPONSE T NRC STAFF'S MOTION FOR DIRECTED CERTIFICATION Intervenors other then Dow Chemical Company object to the NRC Staff's Motion for Directed Certification for the following reasons:
1.
The Motion for Directed Certification is improper.
~ 7"e is no bacis for and no showing that the Appeal Board need act on the Motion at this juncture.
There is pending before the Licensing Board various motions by the parties (including these Intervenors' motions against Staff lawyers for unprofessional conduct), as well as contemporaneous motions by these Intervenors to strike as sham pleadings the very motions as to which the Staff seeks Directed Certification.
These matters should first be addressed by the Licensing Board shich is in the best pc.ition l
to deal with these questions on an initial basis.
2.
As these Intervenors have pointed out in various l
l P eadings filed below, they believe that no unprofessional conduct has taken place and that.the genesis of the Staff's Motion is a cover-up, however inartful, of the Sta'ff's poor performance below.
There is no urgency or irreparable injury to the Staff in not 1
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. having the Licensing Board deal with the various motions pending before it on a basis consistent with the Appeal Board's directions and the Licensing Board's desire to bring the suspension proceed ings to conclusion and decision at the earliest possible date.*
See Public Service Company of Indiana, Inc. (Marble Hill Units 1 and 2) ALAB-405, at p.
3, n.
3, 5 NRC (May 31, 1977).
There is no urgency or irreparable injury to the Staff as to warrant Directed Certification.
The Staff's Motion does not tell the whole story and fails to point out to the Appeal Board that the Staff's very bringing of their Motion has been questioned in formal pleadings by Intervenors raising the question of the Staff's improprieties and breach of professional conduct.
I 3.
The Staff is not seeking a full and fair exposition
'i of all o.f the matters and, for example, is not seeking Directed Certification of the Licensing Board's sua sponte Motion in December 1976 raising the question of Consumers Power Company's lawyers having manipulated the Dow testimony.
Intervenors believe
- On the first page of its Motion, the Staff refers to an opinion.
of Dr. Quarles. referring to Intervonors' counsel's statements as false.
Intervenors' counsel has answered Dr. Quarles' opinion by letter stating that it is Dr. Quarles who is in error and advising Dr. Quarles that if he wishes further information on the nature of his error, Intervenors' counsel will promptly provide it.
Dr. Quarles has not responded to that letter.
. that the Staff's selected request for Directed Certification (eschewing any call for investigation of Consumers Power Company's attorneys on the' Board's motion or any call for consideration of the motions dealing with the Staff's own improprieties which are also pending before the Licensing Board) is further evidence that Intervenors' counsel is being singled out for his history of opposition to the Staff and the nuclear industry.
In light of these charges, only the most deliberate inquiry can be made which does not involve a " paper" investigation by the Appeal Board without the benefit of the Licensing Board's own findings.
4.
It is our belief that the Licensing Board has by its inaction denied the Staff's Motion and in fact, the only Order ever entered by the Licensing Board dealing with attorneys' con-duct (in addition to the Board's own inquiry as to the conduct of Consumers' lawyers) was the Board's February 25, 1977 Order on financial assistance (issued with full knowledge of the February 19, l
1977 letter which forms the basis for the Staff's outrageous Motion) that Intervenors and in part their counsel were providing a valuable public service to the p oceedings and the Licensing Board hoped that funding would be available to continue his participation.
The hearings below have now concluded and we expect the Licensing Board to deal with the various motions on an orderly basis.
Directed Certification is not the way to deal with the truthfulness or lack thereof of the scurrilous charges made by Regulatory Staff members.
5.
The Staff's Motion proceeds on the basis that 9
what it says is in fact true; but, of course, the Staff has not established any of its charges,and the, Staff's cries of obstruc-tionism fall on deaf ears,since the Licensing Board was fully empowered and able to deal with any abuses to the hearing process.
The Licensing Board concluded the suspension hearings having found no such abuses and the Staff's pique at not having been able to intimidate Intervenors' counsel is the real genesis for its unsupported and insupportable Motion for Directed Certification.
Certainly,' if the Appeal Board trea ts the Staff's request as serious, it cannot move forward on the Staff's request without considering Intervenors' pending motion dealing with the Staff's conduct or the Board's pending motion dealing with the conduct of Consumers' attorneys dealing with.'the manipulation of testimony.
The very fact that the Staff does not press all of these things is further evidence that the Staff's request for Directed Certification is an insult to the process, trying to involve the Appeal Board in the Regulatory Staff's personal vindication of its lawyers' animosity for Intervenors' counsel whose " participation has been of value" to these proceedings and who "is appearing in this proceeding at considerable financial loss."
Consumers Power Co. (Midland)
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9 ASLB ; Order, February 25, 1977 at p.
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,s WHEREFOR, we request that the Staff' Motion for Directed Certification be denied.
Respectfully submitted,
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l' Dated:
June 14, 1977 Attorn99)for All Intervenops except @ow Chemical Company MYRON M.
CHERRY t
One IBM Plaza Suite 4501 Chicago, Illinois 60611 (312) 565-1177 CERTIFICATE OF SERVICE I certify that copies of the foregoing Response were mailed, postage prepaid and properly addressed, prior to the close of business on June 14, 1977, to the Secretary of the Appeal Board (4 copies for distribution to the appropriate members of. the Appeal Board), to counsel for the parties below, to members of the Atomic Safety &-Licensing Board, and to the Office of the Secretary of the Nuclear Regulatory Commission.
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- So long as the Staff encourages the Appeal Board to get involved on an interlocutory basis (however insupportable) we invite the Appeal Board to initiate inquiry of the Regulatory Staff concerning its overall conduct below, including but not limited to,why the Regulatory Staff acted totally in a defensive manner as to all of the evidence deduced with respect to need for power and the dispute between Dow and Consumers.
The record below shows and we are confident that the Licensing Board will ultimately so find, that the Regulatory Staff's conduct in the proceeding below was so far removed from the standard of responsible and due care required of an administrative agency's staff, and Intervenors' exposure of that failure of due care is the real genesis of why the Regulatory Staff lawyers are seeking retribution in a most unprofessional manner.