ML19331A384
| ML19331A384 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 10/10/1974 |
| From: | Brown P, Scoville L BECHTEL GROUP, INC., BECHTEL POWER CORP., CLARK, KLEIN, WINTER, PARSONS & PREWITT, EECBECHA |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8007160948 | |
| Download: ML19331A384 (8) | |
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~ j ll UNITED STATES OF AMERICA ATOMIC EIERGY COMMISSION Before The ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Construction Pemit CONSUMERS POWER COMPANY Nos. 81 and 82 (Midland Plant, Units 1 and 2)
RESPONSE OF BECHTZL PCWER CORPORATICU AND BECHTEL ASSOCIATES PROFESSIONAL CORPORATION TO SAGINAW-SIERRA'S MOTION FOR EXTENSION OF TD'E Bechtel Power Corporation and Bechtel Associates Professional Cor-poration ("Bechtel") object to Saginaw-Sierra's =otion for an extension of time within which to file exceptions to the Initial Decision in this pro-cceding and request that this Appeal Board deny the motion for the following reasons:
1.
The Conunission's Rules of Practice,10 CFR $2.762(a), provide that exceptions to an Initial Decision may only be filed within seven (7) days after service of the initial decision.
2.
Saginaw-Sierra alleges that it received a " copy of an Irwm-plete Initial Decision," and that an " appropriate letter was sent to all con-cerned requesting a complete decision." Bechtel received no such letter and, to the extent that Saginaw-Sierra determined that Bechtel was not sufficiently "conce2 aed" as to warrant receiving Saginaw-Sierra's " appropriate letter,"
Bechtel states that its concern has been demonstrated by its participation throughout this proceeding and that it should have received any communication
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from Saginaw-Sierra in this =atter. Accordingly, Bechtel requests that this Appeal Board determine that the " appropriate letter" violates the "ex parte co=munications" rule of 10 CFR $2.780 and, there. ore, is not en-titled to toll the running of the seven day period.
3 Section 2.730(b) of the Commission's Rules of Practice require that motions, "shall be accompanied by any affidavits or other evidence re-lied on."
Saginaw-Sierra's motion is not only unsworn to but also contains no infor=ation or specificatien as to how the Initial Decision was "inco=-
plete." Thus, it wculd appear that the instant motion is but another dila-tory tactic on the part of Saginaw-Sierra to disrupt the orderly resolution of issues raised in the show cause hearing.
4.
Saginaw-Sierra's cotion also requests an extension until its motions for reconsideration of the Initial Decision and/or to reopen the record are decided by the Licensing Board. Bechtel's response to those motions is attached to this response and Bechtel requests that this Appeal Board deny Saginav-Sierra's request on the grounds that the only avenue open to Saginaw-Sierra, insofar as contesting the Initial Decision, is the filing of exceptions. Since the Commission's Rules of Practice do not sanction, at this juncture, either a petition for reconsideration or a motion to reopen, this Appeal Board has no authority to extend time in which to file exceptions to the Initial Decision.
1 Counsel for Saginaw-Sierra was previously cautioned about its practice of communicating with the licensing board by ex parte correspondence during the course of the proceeding. Tr. pp.
89-91. _
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The Rules of Practice,10 CFR $2.730(a), provide that motions may be addressed to a presiding officer only when a pruceeding is pending. The Initial Decision ordered, at page 39, that the proceeding was terminated.
Thus, the licensing board, having issued its decision, terminated ite juris-diction. The proceeding is, therefore, no longer pending before the li-censing board. Accordingly, the licensing board is without authority to consider the Motions to Reepen and/or for Reconsideration and there is thus no reason for this Appeal Board to extend the time within which Saginav--
Sierra may file exceptions to the Initial Decision.
Additionally, a petition for recensideration is only proper where there is a final decision, 10 CFR $2.771(a). The Initial Decision in this proceeding was not, consistent with 10 CFR 52.760(a) and its own language, a final decisien. Thus, the filing of a petition for reconsideration at this tim 7 was procedurally improper.
5.
This motion, to the extent it requests an extension until such time as the licensing board decides the Motions to Reopen and/or for Recon-sideration, relies on matters previously determined to be irrelevant and immaterial by the licensing board. As such it is yet another effort by Saginaw-Sierra te obfuscate the purpose for this show cause proceeding and serves only to show Saginaw-Sierra's disdain for the efforts of the various parties and the licensing board toward the resolution of relevant issues in this proceeding.
2 This conclusion is supported by the appointment of this Appeal Board, 39 Feder01 Register 35198-35199 (September 24,1974) and by the pro-visions in the Initial Decision's Order tbat any party may file excep-tions to the Appeal Board.
Bechtel incorporates by reference its discussion of relevance and materiality cestained in its Response to Saginaw-Sierra's M6tions to Reopen and/or for Reconsideration, including prior pleadings cited therein, and will not, therefore, repeat that discussion here. Suffice it to say, however, that since the relevance of the construction of the Palisades plant, insofar as the Midland Show Cause proceeding is concerned, has already been decided against Saginaw-Sierra, the motions to the licensing board and to this Appeal Board have no merit.
6.
The record in this proceeding was closed on July 25, 1974.
Counsel for Saginaw-Sierra was given every conceivable opportunity prior to that date to introduce relevant matters for consideration by the licensing board. Hot only did Saginaw-31erra choose not to file written testimony before the board, but they refused to participate in the hearing, filed no request that the board take official notice of documents, filed no pro-posed findings of fact and conclusions of law, and filed no reply findings.
In addition, Saginaw-Sierra refused to participate responsibly in the dis-covery stage of this proceeding. Saginaw-Sierra nevertheless seeks to reopen this croceeding or to have the Initial Decision reconsidered on the grounds that certain infozzation was deliberately ignored or withheld by Consumers, Bechtel and maybe even the regulaicry staff and because the licensing board did not " ferret cut" this information despite its promise to do so.
3 Saginaw-Sierra's allegation that it was without the financial means to actively participate in this proceeding was determined by the Commission to be unfounded. Memorandum and Order (July lo,1974) MI-74-7 p.1.
7 Proceedings before any court of law or administrative tribunal are not intended to remain open ad infinitum. TLe purpose of any proceeding is to consider the issues raised by the precipitating cause of the proceeding; upon resolution of those issues, the proceeding necessarily terminates. The instant proceeding considered and resolved all of the relevant issues raised by the Show Cause Order. The Show Cause hearing is over; all appeals cust be confined to the matters considered therein. If it were otherwise, there could never be an crderly end to a particular proceeding, and the parties who are forced time and again to ec=e 1 ek and defend each new allegation on the grounds that they are sc=ehow relevant to the initial proceedire would be severely prejudiced. Saginaw-Sierra's present attempt to inject a lawsuit filed by Consumers against Eechtel, among others, claiming da= ages for allegedly faulty design and/or construction of Consu::e rs' Palisades plant as relevant to a determination of quality assurance implementation at Con-sumers' Midland Plant epitomizes the extent to which a particular proceeding could be maintained were it permitted to remain open indefinitely.
8.
Counsel for Saginaw-Sierra claims to be an experienced prac-titioner before the Atomic Energy Commission and a member of several dif-ferent bar' associations. He must, therefore, be held knowledgeable of the fact that the Commission's Rules of Practice provide for only one avenue of appeal from an initial decisica such as rendered by the licensing board i
in this matter. That avenue is the filing of exceptions to that decision.
Saginav-Sierra's counsel's instant motions, both before this Appeal Board and before the licensing board, are obvious attempts to circumvent the Rules of Practice and thereby extend the time for appeal beyond that provided in the regulations. This is not the first instance of Saginaw-Sierra counsel's l l
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disregard for the rules and orders in this proceeding, a fact which he has previously been cautioned against.
Inasmuch as the Saginaw-Sierra motions amount to procedural nullities, it is requested that they be denied forth-with and that no time, in addition to that afforded by the Comnission's Regulations, be awarded Saginaw-Sierra for the purpose of filing exceptions which should and could have been filed scme time ago.
WHEPIFORE, Bechtel requests that this Appeal Board deny Saginaw-Sierra's Motion for an Extension of Time on the grounds that it is procedu-rally deficient, that the Appeal Board lacks authority to act on the motien and that it relies on =atters determined to be irrelevant and ic:aterial to tbe issues of present and future coupliance by Consumers cad Bechtel with quality assurance requirements at Midland.
Respectfully submitted,
/
er M. S ville, Jr.
T 6
t P. Robert Brown, Jr.
Individually and for the Fim Clark, Klein,3 Winter, Parsons & Previtt 1600 First Federal Building 1001 Woodward Avenue Detroit, Michigan h8226 (313) 962-64 2 9
Attorneys for Bechtel Power Corporation and Bechtel Associates Professional Corporation Dated: October 10, 1974 N
Tr. pp. 89-91, 124-125
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AFFIDAVIT LAURENCE M. SCOVILLE, JR., being duly sworn does depose and say as follows:
I am an attorney-at-law and represent BEChTEL FCWER CORPORATION and BECHTEL ASSOCL$TES PROFESSIONAL CORPORATION in the Midland Show Cause proceeding.
I am, therefore, entitled to receive all correspondence from all parties relating to said proceeding.
I received no letter or other cc==tmication B c= counsel for Saginaw-Sierra indicating the canner in which his copy of the Initial De-cision was claimed to be deficient or requesting that Saginaw-Sierra be furnished with a complete copy of the Initial Decision rendered by the Licensing Board in this proceeding.
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'Laurence M. Scoville, Jr.
'N STATE OF MICHIGAN ss.
COUNTY OF WARE )
Subscribed and sworn to before me, a Notary Public, this loth day of October, 1974, in and for said County.
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Diletta l'artino, Notary Public, Wayne County, Michigan, My Commission Expires:
2-22-76.
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UNITED STATES OF A! ERICA ATOMIC ENERGY C0!?!ISSION In the Matter of
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Construction Permit CONSU!ERS POWER COMPANY
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Nos. 81 and 82
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(Midland Plant, Units 1 ar.d 2) )
CERTIFICATE OF SERVICE I hereby certiff that copies of the attached " Response of Bechtel Power Corporation and Bechtel Associates Professional Corporation to Saginav-Sierra's Motion for Extension of Time" dated October 10,197h in the above captioned matter have been served on the folleving in person or by deposit in the United States mail, first-class, or airmail, this 10th day of October, 197k.
Secretary (20)
John G. 01eeson, Esq.
U.S. Atomic Energy Co=ission Legal Department Attn: Chief, Public Proceedings The Dow Chemical Cc=pany Branch 2030 Dow Center Washington, DC 205k5 Midland, MI h86h0 James P. Murrsy, Jr.
Michael I. Miller, Esq.
Chief Rulemaking and R. Rex Renfrev III, Esq.
Enforcement Counsel Isham, Lincoln & Beale U.S. Atomic Energy Cc= mission One First National Plaza -- h2nd Floor Washington, DC 205k5 Chicago, IL 60670 Michael Glaser, Esq.
Lester Kornblith, Jr.
1150 17th Street, NW U.S. Atomic Energy Co= mission Washington, DC 20036 Washington, DC 205ks Dr. Emmeth A. Luebke Myron M. Cherry, Esq.
U.S. Atomic Energy Co=ission One IBM Plaza
':?enhington, DC 205h5 Suite h501 Chicago, IL 60611 Mr. Richard S. Salzman Mr. Michael C. Farrar U.S. Atomic Energy Cc= mission U.S. Atomic Energy Cc=ission Washington, DC 205k5 Washington, DC 205hi Dr. Lavz'nce R. Quarles U.S. Atomic Energy Commission Washington, DC 205ks
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