ML19331A469
| ML19331A469 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 03/18/1977 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Saginaw Intervenor |
| References | |
| ALAB-382, NUDOCS 8007170718 | |
| Download: ML19331A469 (12) | |
Text
,.
g P
ns,
a\\ e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION (f S.?
Q' gy.
,d, ATOMIC SAFETY AND LICENSING APPEAL BOARD di
%(3 j
},
, 7 6, ',N l J
O
\\
i Michael C. Farrar, Chairman Dr.. Lawrence R. Quarles 5-
- {. V Richard S. Salzman Q..
.}
v ':
l i
)
In the Matter of
)
)
Docket Nos. 50-329 CONSUMERS POWER COMPANY
)
50-330
)
(Midland Plant, Units 1 & 2)
)
)
Mr. Myron M. Cherrv, Chicago, Illinois, for the intervenors Saginaw Valley Nuclear Study Group, et al.
Mr. David J.
Rosso and Ms. Caryl A.
Bartelman, Chicago, Illinois, for Consumers Power Company.
Mr.
L.
F.
Nute, Midland, Michigan, for the intervenor Dow Chemical Company.
Mr. Richard K.
Hoefling for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER March 18, 1977 (ALAB-382)
On March 13, 1977, an " emergency" motion 1/ was filed on behalf of the Saginaw group of.intervenors
/ seeking 2
(
1 / Because of a claimed uncertainty before whom to file this certification motion, it is captioned in.the alternative before this Board and the Commission.
The Rules of Practice give us jurisdiction over these motions (10 C.F.R.82.718); certification motions directly to the Commission by individual parties are unauthorized (10 C.F.R. 32. 785 (d) ).
2_,/ The Saginaw group is comprised of the Saginaw Valley Nuclear Study Group, the Mapleton Intervenors, the Aeschliman Intervenors, West Michigan Environmental Action Council and the United Auto Workers International M
Environmental Group.
Tr. 7.
f/
8007170 )h h.
, ' directed certification of the Licensing Board's order of February 25, 1977 (unpublished) denying their request for Commission funds to pay their lawyer's fees and expenses and those of a witness they wish to sponsor who resides on the West Coast.
The " emergency" character of the motion is premised upon the scheduled resumption of hearings before the Licensing Board on March 21, 1977, and the Saginaw in-tervenors' professed inability to continue their partici-p; tion without the public funds they are seeking.
Because of the asserted emergency, we shortened the usual time for responses to the motion and invited replies by March 18, 1977.
Consumers Power Company and the NRC staff both urged us to deny the certification request; intervenor Dow Chemical Company advised us that it did not choose to take a position on Saginaw's motion.
We find that the result reached by the Licensing Board is compelled by Commission rulings and deny the request for directed certdf.tEltion.
1.
The Licensing Board'.= ttlifg was founded upon the Commission's express policy a..,ain..
financing participants in NRC adjudicatory proceedings announced in Nuclear Regulatory Commission (Financial Assistance to Participants in Commission Proceedings), CLI-76-23, NRCI-76/ll, 484 (November 12, 1976).
The Saginaw intervenors had asked the Board below to arrange public funds to pay for their lawyer's
3-fees and expenses and to pay the cost of bringing Dr. Richard J.
Timm of Salem, Oregon,to the hearing in Chicago as their witness.
In its February 25 order, the Board ruled that the various legal theories propounded by the intervenors to justify that financial assistance " ignore the ' clear published Commission policy by which we are bound".
Before us, the Saginaw intervenors acknowledge the Commission policy upon which the Licensing Board based its ruling, but proffer reasons why in this case it should not bar the financial assistance requested, stressing in par-ticular cheir contribution to the proceeding and the recog-nition of that fact by the Licensing Board.
They assert that they are otherwise unable to raise funds to participate further and that the money -- both for the witness expenses and for their counsel -- is necessary to assure that Dr. Timm will testify and that these intervenors' participation can continue.
According to the Saginaw intervenors, the impor-tance of the financial assistance issue as it bears upon this proceeding satisfies our standards for directed certi-i fication, citing Public Service Co. of New Hampshire (Seabrook, Units 1 & 2), ALAB-271, 1 NRC 478 (1975). -
_3,/
As was appropriate, tre intervenors first asked the Licensing Board to refer its February 25, 1977 ruling to us.
The Board denied that request. See order dated March 11, 1977 and memorandum dated March 16, 1977 (both unpublished).
- -. +
--w,
~,e y
w g
v,
---w
.m 4
4
- 2.
We have frequently pointed out that the grant of.a request for directed certification is an exception to the Commission's general rule against interlocutory appeals (10 CFR 52.730 (f)) and, as such, is to be resorted to only in " exceptional circumstances".
Seabrook, ALAB-271, supra,1 NRC at 486. 4 /
In situations where we have no authority to grant the relief requested, certification is unwarranted.
The Licensing Board correctly read the-Commission's Financial Assistance decision, supra, as precluding the relief here sought.
See Detroit Edison Co. (Greenwood-Energy Center, Units 2 and 3), ALAB-376, 5 NRC__,(February 22, 1977).
The Commission's decision noted that the extent of its authority to finance hearing participants was limited as described in an opinion of the comptroller General of the United States (B-92288, February, 1976).
After reviewing that opinion,the Commission concluded for reasons it set out at length that it was unable to make the requisite finding (specified by the Comptroller General) that in i
4/
See also Seabrook, ALAB-295, 2 NRC 668 (1965) ("truly
~~
exceptional situation"); Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-314, NRCI-76/2 98, 99 (February 26,.1976); Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-318, NRCI-76/3 186 (March 16, 1976); id., ALAB-353, NRCI-76/10 381 (October 28, 1976); Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-361, NRCI-76/12 625 (December 28, 1976); cf. United States Energy Research and Development Administration, CLI-76-13, NRCI-76/8 67, 75-76 (August 27, 1976).
' adjudicatory proceedings funding was "necessary * *
- in order to carry out NRC's statutory functions in making licensing determinations."
We need not rehearse those reasons here.
It is sufficient to note for-purposes of this motion that the Commission's conclusions rest on its carefully considered judgment that it " lack (s] not only the statutory authority to provide funding, but
- also * * * (as a matter of sound public policy] that a non-elected regulatory Commission is not the proper insti-tution to expend public funds in this fashion absent ex -
press Congressional authorization" (NRCI-76/ll at 500-01).
The Saginaw intervenors' attempts to avoid the effect of the Commission's Financial Assistance ruling are of no avail.
They first cite a recent decision of the Second Circuit, issued a month after the Commission's Financial Assistance ruling, as authority for its re-examination.
Greene County Planning Board v. FPC, F.2d 9 ERC 1611, 1616-17 (December 8, 1976).
That court, by divided vote, held only that the Federal Power Commission had authority.
to award financial assistance to participants in proce-edings before it in circumstances "where they may meet the standards approved by the Comptroller General" in his advice letter to the NRC, and remanded the request for fees and expenses to the FPC for consideration in light of the
- Comptroller's ruling.
9 ERC at 1617.
This Commission, however, has already made its judgment on funding inter-venors under the Comptroller General's criteria.
As we have no+.ed, however, the Commission's determination was adverse to the position espoused by the Saginaw intervenors; nothing said in Greene County mandates its reconsideration.
The Saginaw intervenors next argue that this case is different from most and that their participation here is more useful and more necessary than usual.
Accordingly, they urge that the general Commission rule against paying a party's attorney's fees and witness' expenses not be ap-plied.
Accepting arcuendo everything the Saginaw intervenors assert about the usefulness of their participation, we can-not credit their argument.
It amounts to no more than that the determination whether or not to finance intervenor groups should be made anew in each indivdual case.
A proposal for a cass-by-case review of the question of financing intervenors participation, however, has already been considered by the Commission and was expressly rejected.-5/
Our views of the t
5/
NRCI-76/ll at 498, fn.
4.
We note that for reasons expressed in his separate views, Commissioner Gilinsky would have adopted the' case-by-case approach.
See NRCI-76/ll at 518-20.
l
,r'%
7-merits of that approach are thus of no moment; we are bound by the Commission decision to the contrary.-6/
3.
Finally, the Licensing Board said that were Dr. Timm released from sponsorship by the Saginaw inter-venors, it "would look into the matter of his sponsorship by the Board."
Given the importance that Board apparently 7/
attaches to hearing this witness-- we do not see why the Board cannot obtain the benefit of his testimony by subpoenaing him as a Board witness.
Nothing we have said in this opinion, 6/
In light of our disposition of their motion, we need not explore the subsidiary question whether the Sginaw group intervenors would qualify for public funding in any event.
We note, however, that in an earlier proceeding involving this same facility, the Commission denied a request for financial assistance to this intervenor group on the ground that it had not made a " proper showing of need."
The Commission observed that some of the intervenors requesting as-sistance possessed substantial assets and commented that " intervention may sometimes require an inter-
- vening organization to re-order its budgetary priori-ties".
Consumers Power Company (Midland Plants, Units 1 and 2), CLI-74-26, 8 AEC 1, (1974).
See note 2,
supra.
See also, Consumers Power Company (Midland Plants, Units 1 & 2), ALAB-270, 1 NRC 473, 474-76 (1975).
(
7/
In its February 25 Order, it stated that Dr. Timm's pre-filed testimony "and the cross-examination that will result if the testimony is received seem to the Board to be valuable additions to the hearing record."
w,,.
-y-,,,..--..-..-v.
y 7
,,-m
.r,_,,,w.,,,,,,, - - - -,. - - - - -. -
. and nothing we discern in the Commission's Financial
' Assistance decision, precludes a Board from calling witnes-ses of its own where it finds a genuine need for their testimony or from authorizing Commission payment of the usual witness fees and expenses when it does so.-8/
Of course, in such circumstances, the subjects which the wit-ness may address in his testimuny would be controlled by the Board and cross-examination by any party would be re-stricted to matters covered in the witness' direct presen-tation.
Needless to add, the Board's authority in this respect should be exercised with circumspection where the witness it desires to hear would have been sponsored by one of the parties but for financial considerations.
In these circum-stances, there necessarily can be no bright line between rendering indirect financial support to an intervanor --
which we take to be proscribed by Commission policy --
and arranging to hear evidence which a Board deems relevant and important for its resolution of a significant contested issuer / e can, however, offer our colleagues who must 9 W
_8/
42 U.S.C. E2201(c) ; 10 CFR E2.718(b).
_9/
One way a Board might avoid crossing that line inadver-tently is to be cautious before accepting written direct testimony from a Board witness that was previously prepared by (or for) him in his capacity as a witness or expert for a partisan in the proceeding.
, decfie these questions when they arise certain useful ob-servations.
First, in a close case involving a key safety or environmental issues, we are confident that the Commission does not perceive its mission as requiring the protection of the public fisc at the expense of the search for truth.
- Second, should a party object to one of its witnesses being called on behalf of the Board, the Board may consider that factor in deciding whether to do so.
But here again the search for truth is the paramount consideration.
Accordingly, the de-cision to call or not to call a witness for the Board must rest and does rest ultimately in the sound discretion of the tribunal alone.
The Saginaw intervenors' motion for directed certifica-tion of the Licensing Board's February 25, 1977, order is denied.
1 It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 3 %;12 14 / $ A0 J 5~
Margaret E.
Du Flo Secretary to the Appeal Board e
r rm, e-e-----,-,.
--e n---e~
n,
-e,
.s UNITED STATES OF A1, ERICA NUCLEAR REGULATORY COFDlISSION In the Matter of
)
)
CONSUMERS POWER COMPANY
)
Docket No.(s) 50-329
)
50-330 (Midland Plant, Units 1 and 2)
)
)
)
)
)
CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing document (s) upon each person designated on the official service list compiled.by the Office of the Secretary of the Com:nission in this proceeding in accordance with the requirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Commission's Rules and Regulations.
Dated at Washington, D.C. this 197Y.
day of
~
Of fice of,the Secretary o/the Commission r
(
S e
b
p n
U3ITED STATES OF AMERICA NUCLDR REGULATORY COMMISSION
)
In the Matter of
)
)
CONSUMERS POWER COMPANY
)
Docket No.(s) 50-329
)
50-330 (Midland Plant, Units 1 and 2)
)
)
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 49640 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 486_02, _
Myron M. Cherry, Esq.
One IBM Plaza Chicago, Illinois 60611 Harold F. Reis, Esq.
Lowenstein, Newman, Reis & Axelrad Honodsble 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 Ottawa Assistant Attorney General Lansing, Michigan 48913 State of Kansas Topeka, Kansas 66612 Lee Nute, Esq.
Michigan Division Irving Like, Esq.
The Dow Chemical Company Reilly, Like and Schneider 47 Building 200 West Main Street Midland, Michigan 48640 Babylon, New York 11702
50-329, -330 7'
Psgs 2 Anthony Z. Roisman, Esq.
Roisman, Kessler and Cashdan 1025 - 15th Street, N.W.
Washington, D.C.
20005 Joseph Gallo, Esq.
Isham, Lincoln & Beale 1050 - 17th S treet, ' N.W.
Washington, D.C.
20036 1
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
-g..--
.m-,. -. -
y y,-y
., - - -,