ML19331A758
| ML19331A758 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/17/1973 |
| From: | Reis H CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007210763 | |
| Download: ML19331A758 (23) | |
Text
__
UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF
)
CONSUMERS POWER COMPANY Docket Nos b _3_29
)
and 50-330 (Midland Plant, Units 1 and 2)
)
CPPOSITION OF APPLICANT i
TO SAGINAW INTERVENORS' MOTION TO REQUIRE REVOCATION OF INITIAL DECISION AND DECLARE THE ATOMIC SAFETY AND LICENSING BOARD BIASED This answer in opposition is filed by.the Applicant, Consumers Power Company, to the motion filed on January 7, 1973,
~
by the Saginaw Intervenors (Intervenors), entitled " Motion and Supporting Argument to Require the Presiding Officer to Recall and Revoke the Initial Decision and to Declare the Atomic Safety ~ _'
and Licensing Board Biased."
There is attached to the motion an affidavit executed on January 7, 1973, by Myron M. Cherry, Esq.,
attorney for the Saginaw Intervenors.
BACKGROUND This motion arises out of a proceeding with a lengthy history.
On January 13, 1969, the Applicant filed with the Atomic Energy Commission an application for a license to construct and operate a nuclear power plant, called Midland Nuclear Plant, Units 1 and 2.
After review by the AEC regulatory staff and the Advisory Committee on Reactor Safeguards, the matter was noticed for hearing on November 17, 1970.
A number of parties, both supporting and op-posing the application, intervened in the proceeding, and extensive 8007210953 h
hearings were held before this Atomic Safety and Licensing Board at different times in 1970, 1971 and 1972 with respect to both the radiological health and safety issues and environmental issues involved.
An Initial Decision, which describes the history in greater detail (See 151-9) and which authorized the grant of the construction permit, was issued on December 14, 1972.
Members of Atomic Safety and Licensing Boards need not be members of the staff of the Commission or of any other federal agency.
They "may be appointed by the Commission from private life (Atomic Energy Act of 1954, as amended, 5191b; 46 U.S.C. 52241 (b) ) ; and in this proceeding all three Licensing Board members were so appointed.
The Chairman is Arthur W.
- Murphy, Professor of Law at the Columbia University School of Law.
Some of the other activities in whien Professor Murphy was engaged related to current problems of' administrative law and, apparently included consultative or similar work for the Administrative Conference of the United States, a permanent independent agency of the government of the United States (5 U.S.C.
S571, et seq.).
In that connection it appears that he prepared, as a report to the Comuilttee on Licenses and Authorizations of the Administrative Conference, an article entitled "The National Environmental Policy 1/
Act and the Licensing Process: Magna Carta or Coup de Grace?"~
, 1/
With revisions not here relevant, this report later appeared as an article in the Columbia La'.i Review, entitled, The National Environmental Policy Act and the Licensing Process:
Environmental Magna Carta or Agency Coup de Grace? 72 Colum.
L. Rev. 963 (1972).
. -ee-.
The first draft of that article was dated April 7,1972.
Short'.y thereaf ter, the'then Chairman of the Administrative Con-ference, Mr. Roger C. Cramton, sent copies of the article, together with another article produced by members of the staff of the Adminis-trative Conference, to law professors, govertment officials and practicing lawyers known to be interested in the subject and re-quested their comments thereon.
Both the extrinsic circumstances and his own admission leaves no doubt that Mr. Cherry was among those individuals.
The files of the Administrative Conference contain a carbon copy of a letter dated April 20, 1972, from Mr. Cramton forwarding both articles to Mr. Cherry and stating:
"Your comments on the two reports and their conclusions ;would be
/
2 very much appreciated. "
In addition, in his affidavit (14) attached to the motion Mr. Cherry states that he recalls "some time in the summer of 1972, of having become aware of the existence of the pre-i cursor of the Columbia Law Review article."
Proceedings in the instant matter were in progress at that time.
Numerous documents were filed by the parties after April 20, 1972, including the Saginaw Intervenors.
Evidentiary hearings on environmental matters began on May 17, 1972 and ended on June 15, 2,/
There is appended hereto as Exhibit A a copy of the April 20, 1972 letter from Mr. Cramton to Mr. Cherry.
There is also appended as Exhibit B a list of the individuals who received copies of the April 7 draft of Professor Murphy's report shortly after its preparation.
The facts recited above are set forth on information and belief on the basis of conversa-tions with a member of the staff of the Administrative Con-ference who supplied a copy of Exhibit A and the information contained in Exhibit B.
~
l 4
1972.
(Initial Decision,18)
This was the time at which the issues to which the article was related were heard and when, if prejudgment existed, it' might have~ been possible to take curative action rather than permitting all of the participants to continue with a hearing now contended to be tainted.
Nevertheless, Mr. Cherry never mentioned the article at any time in the course of proceedings.
His first reference to the article and its alleged impact upon this proceeding was not made until after the Initial Decision, unfavorable to his clients, was issued on December 14, 1972.
The instant motion requests the issuance of an order -
recalling and revoking the Initial Decision.
It_also requests
~
(p. 8) this Board to declare itself biased and to refer the matter "to the Commission for the appointment of a new Board with instructions to have a new hearing on all relevant issues."
As we demonstrate below, the motion must be rejected, for it is without merit, insufficient and untimely.
Moreover, this Board does rac possess jurisdiction to hear it at this time, TIMELINESS The precise basis of the Intervenors' charge of bias is somewhat unclear.
However, whatever its basis, the courts have l
consistently ruled that accusations of bias must be raised in a timely manner.
- See, e.g., United States v. L. A. Tucker Truck Lines, Inc., 344 U.S.
33, 38, 73 S.Ct. 67, 69 (1952);
Gilligan, Will & Co. v. SEC, 267 F.2d 461 (2nd Cir.1959).
Failure to do so is fatal to any claim of bias.
A charge of bias based on statements of the Licensing Board should have been raised during the proceedings below.
By failing to make timely
-5, obj ection, the Intervenors ht,va waived their right to assert any claim of bias based on excerpts from the trar. script.
Gilligan, Will & Co., supra.
Indeed the Intervenors themselves seem to recognize this by grounding their charge of bias almost entirely on the contents of the article written by Chairman Murphy.
While this is not entirely clear it seems possible that the Intervenors are also contending that bias existed independent of the contents of the Murphy article -- although really dis-closed in the transcript,the bias was somehow obscured until the article became available.
Thus, there are inserted in the affidavit (110) " selected references to the Midl~and Transcript which now become clear statements of bias when viewed ~in the
~
light of the Initial decision and the article."
The " selected"
~
_~
references, culled from almost 9000 pages of transcript,show no bias, and we do not attempt to answer them all here.
- However, we note that on the face cf the affidavit one reference in the affidavit (110 (f) ; Tr. 821) is clearly mischaracterized.
An l
3/
For example, on page seven of their motion the Intervenors state that:
It is clear that upon an examination of the transcript record in the present case, and upon a review of the article written by Arthur W. Murphy, l
Chairman of the Licensing Board, entitled "The National Environmental Policy Act And The Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace", 72 Columbia Law Review 963 (Oct.
1972), the Intervenors faced a Licensing Board infused by a personal bias, thus rendering the Initial Decision a nullity.
(emphasis added) (foot-note omitted)
See also affidavit, 110.
l
.. examination,of the others show that none represents an example of. personal bias or prejudgment.
And -- of course -- even if they did, the revelation came too late.
In any event, whether the bias is based on the arficie alone, the transcript alone 4/
or the two together, -
the claim of bias should have been made in April of 1972, not in January of 1973.
" Timely", as defined by the courts, means "at the first reasonable opportunity after discovery of the facts tending to show disqualification."
Long Beach Federal S&L Ass'n v. Federal Home Loan Bk. Bd.,
189 F.Supp. 589, 611 (S.D. Cal. 196 0), reversed on other grounds, 295 F.2d 403 (9th Cir. 1961). ~ Counsel for the Intervenors was sent a copy of the first draft of the article
~
~
by the Chairman of' the Administrative Conference of the United
~~~
States under a letter dated April 20, 1972, and admits becoming aware of the article many months ago.
Affidavit, 14.
Though he now states that he did not " deal with that article at any great length" at the time, it was his business to " deal with" the literature of the field.
His decision to neglect other responsi-bilities because of his involvement in the ECCS proceeding (Id. )
-4/
The affidavit suggests (14) that the Initial Decision, when read together with the article, constitutes a further manifesta-tion of bias.
However, it makes no reference to any particular part of the decision; and lawyers' claims of bias following unfavorable decisions are f amiliar but rarely ever meant to be taken seriously.
cannot excuse his failure to raise the issue of bias in a timely 4
manner.
Therefore, even if a basis for a charge of bias did exist in the article, the Intervenors would be estopped to raise it.
4 l-SUFFICIENCY AND MERITS As we have pointed out above, the precise nature of the bias charged by the Intervenors is not clear.
Nevertheless, the basic charge seems to be that Chairman Murphy's article demonstrates a disqualifying prejudgment.
Yet in his affidavit, counsel for the Intervenors makes no specific allegations of, fact in support of this or any other charge.
Rather, in an illusory attempt to be specific, counsel has stapled copies of 21 pages i
of the article to his affidavit.
However, an affidavit, in support of a motion to disqualify, is only sufficient if it-contains allegations of fact, as distinguished from conclusions.
l 5/
Counsel continually attempts to justify his disregard o.f this proceeding because of his participation in the ECCS Hearing.
Compare the Intervenors' filing of September 15, 1972 (wherein counsel justifies his absence from the environmental phase of this proceeding because of the ECCS proceedings)with Motion of Saginaw Valley _Intervenors for an Extension of Tine within which to File Exceptions to Initial Decision dated December 29, 1972 (wherein counsel seeks additional time to file exceptions, partly because of activities in connection with the ECCS proceedings) and the affidavit. discussed in the text, above (wherein c.ounsel seeks to justify his delay in raising an allegation of bias because of participation in the ECCS proceedings).
This course of conduct is all the more remarkable because it is carried out directly in the face of an order specifically cautioning counsel against overextending himself to the neglect of this proceed-ing.
See Board Order dated January.6;,1972.
6/
As the Supreme Court has recognized, orderly procedures and good administration require that objections to the proceedings of an administrative agency be made while it has the opportunity for cor-rection.
United States v. L.A. Tucker Truck Lines,'Inc., 344 U.S.
33, 38, 73 S.Ct. 67, 69 (1952); Spiller v. Atchison, T.
& S.F.
R.
Co.,
253 U.S. 117, 130, 40 S.Ct. 446, 471 (1920).
. These facts must be such that, if taken to be true, as stated, they would be sufficient to convince an unbiased, unprejudiced, and disinterested mind.
Long Beach Federal S&L Ass'n v. Federal Home Loan Bk. Bd.,
189 F. Supp. 589, 612 (S.D. Cal. 1960).
The needle-in-the-haystack exercise here presented is plainly insufficient to specify a charge of disqualifying bias.
What is more, it signals the weakness of the case.
Moreover, even if the filing of the Intervenors were timely and sufficient, the requested disqualification would have to be denied on the merits.
The article in question is a scholarly and rigorous study of the impact of environmental legislation on the licensing process.
As it was peinted out abovr, it was originally prepare'd as a report to the Committee on Licenses and ~ _-
Authorizations of the Administrative Conference of the United States as part of a Committee study.
In essence, the article expresses the opinion that NEPA, as interpreted by the courts, has imposed a task on the licensing process which it is ill'-
designed to handle.
While specific hearings are cited throughout the work as illustrative er:amples of various points, the article does not express a single opinion which can fairly be interpreted as a prejudgment of this or any other proceeding.
The distinction between opinions on law and policy, and the prejudgment of proceedings, is apparently not understood by
=
-9 the Intervenors.
The idea that an official should be dis-qualified for bias because of convictions concerning law and policy has been rejected by American courts.
See Disqualification of Administrative Officials for Bias, 13 Vand. L. Rev. 712 (1960);
K. Davis, Administrative Law Treatise S12.01 (Supp. 1970).
A well-known statement of the usual approach appears in the Fourth Morgan case.
Ungjed States v. Morgan, 313 U.S. 409, 61 S.Ct.999 (1941).
The then Secretary of Agriculture had expressed severe criticism of a previous court decision in the same matter in a letter to the New York Times.
The Supreme Court upheld his refusal to disqualify himself because of the letter.
The Court stated:
That he not merely held but expressed strong views on matters believed by him to have been in issue, did not unfit him for exercising his.
duty in subsequent proceedings ordered by this Court.
As well might it be argued that the judges below, who had three times heard this case, had disqualifying convictions..
Cabinet officers charged by Congress with ad-judicatory functions are not assumed to be flabby creatures any more than judges *are.
Both may have an underlying philosophy in approaching a specific case.
But both are assumed to be men of conscience and intellec-tual discipline, capable of judging a parti-cular controversy fairly on the basis of its own circumstances.
Id. at 421, 61 S.Ct. at 1004.
The Supreme Court reaffirmed this position in the Cement case.
FTC v. Cement Institute 333 U.S. 683, 68 S.Ct. 793 (1948).
In that case the FTC had issued a cease and desist order against the use of a multiple basing point system in the selling of cement.
Even before the start of the proceeding, however, at l
l 1
least scme Commissioners had made it clear, in reports to Congress and the President, that they were of the opinion that the multi-ple basing point system was illegal.
The Court, in deciding contentions that the Co==ission had " prejudged the issues" and was " prejudiced and biased" specifically stated that it was doing so "on the assumptien that such an cpinion had been formed by the entire membership of the Cc==ission as a result of its prior l
official investigations."
Id. at 700, 68 S.Ct. at 803.
Then the Court held that the previously for=ed cpinien did not dis-qualify the Cc==ission.
Id. The Court pointed out that the' minds of the Co==issioners were not " irrevocably closed" and noted especially:
(M] embers of the cement industry were legally authorized participants in the hearings.
They produced evidence-- volumes of it.
They were free to point out to the Co==ission by testimony, by cross-examination of witnesses, and by argu-ments, conditions of the trade practices under attack which they thought kept these practices within the range of legally permissible business.
activities.
Id. at 701, 68 S.Ct. at 803.
In closing, the Court no'ted that it would not (b]e a violation of procedural due process for a judge to sit in a case after he had expressed an opinion as to whether certain types of con-duct were prohibited by law.
In fact, judges frequently try the same cases more than once and decide identical issues each time, although these issues involve questions of both law and fact.
Certainly the Federal Trade Co==ission cannot possibly be under stronger constitutional compulsions in this respect than a court.
Id.
at 702-3, 68 S.Ct. at 804.
In considering charges of bias, courts continue to dis-tinguish between prejudgments of law, policy and legislative
~
f acts on the cne hand, and the prejudgment of cases on the other.
Thus, in a recent appellate case where two members of the Federal Power Commission were charged with prejudgment the court stated:
In our cpinien no basis for disqualification arises from the fact or assumotion that a me=her of an administrative agency enters a proceeding with advance views on important econcmic matters in issue.
Skelly oil Co. v.
FPC, 375 F.2d 6, 18 (10 th Cir. 19 67).
Citing the Fourth Morgan and Cement cases the court noted that:
Nothing in the record disturbs the assumption that the two commissions are " men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances."
Id.
It is not difficult to envision a situation where, in contrast to holding views or opinions, an administrative officer could fairly be found to have prejudged the result of a pro-ceeding.
Indeed, each of the cases relied upon by the Intervenors in their motion presents such a circumstance.
7/
In the Gilligan case, the SEC issued a press release, three days after the start of proceedings, stating that the party in question was guilty.
Gilligan, Will & Co. v. SEC, 267 F.2d 461 (2nd Cir. 1959), cert. denied, 361 U.S.
896, 80 S.Ct. 200 (1959).
In the Texaco and Cinderella cases, the Chairman of the FTC had participated in decisions after having previously announced the guilt of the parties.
Texaco, Inc. v. FTC, 336 F.2d 754 (D.C.
Cir.1964), vacated and remanded on other grounds, 381 U.S. 739, 85 S.Ct. 1798 (1965) ; Cinderella Career & Finishing Schools, Inc.
- v. FTC, 425 F.2d 583 (D.C. Cir. 1970).
In the Treat case, the court found that a Commissioner of the SEC had sat on a case after first having concluded, while acting in a different capacity, that the party in question was guilty.
Amos Treat & Co. v. SEC, 306 F.2d 260 (D.C.
Cir. 19r').
Thus, in requiring that administra-tive hearings be attent d with both substantive and apparent fairness, the courts do not demand, as the Intervenors suggest, that hearing boards and Commissions be staffed by men without conviction as to law and policy (See Motion, ej 4),
but rather, that each hearing be conducted on its own merits, with neither the presence, nor the appearance of prejudgment as to the final outcome.
Thus, for example, when a Commissioner announces in a speech the guilt of a party before the conclusion of a proceeding, he is guilty of prejudgment and disqualifying bias.
Texaco, Inc. v.
FTC, 336 F.2d 754 (D.C. Cir.1964), vacated and remanded on other grounds, 381 U.S.
739, 85 S.Ct. 1798 (1965).
Such a situation clearly stands in contrast to that which the Intervenors here maintain is grounds for bias.
The basic distinction between such cases as the Fourth Morgan, on the one hand, and Texaco and Cinderella, on the other, has also been drawn in connection with administrative proceedings involving Federal Communications Commissioner Nicholas Johnson, where his writings and speeches were claimed to constitute dis-qualifying bias.
The FCC pointed out that:
"The pertinent
~
question here is whether Commissioner Johnson has formed an opinion', ~ ~ '
prior to decision as to the facts or outcome of this case, closing his mind to persuasion, or has reasonably given the appearance of doing so."
The Commission recognized that the Commissioner held:
" strong views on the general question of concentration of control.
. But that is not the issue.
The issue is whether he has given the impression of prejudging the narrower question of whether the present ownership of KRON-TV and KRON-FM constitute a concentration of control in-consistent with the public interest. "
In re Chronicle, 20 F.C.C.
2d 33, 38, 17 Pike &
Fische r R. R. 2d 663, 669-670.8/
\\
8/
See also In re Petition of American Telephone & Telegraph Co.,
26 F.C.C.
2d 523 (1970), in which Commissioner Johnson applied the same principle to a petition for disqualification served on him personally.
Although expressing doubt as to whether the petition should be addressed to him or the Commission, he dealt with the matter himself, but forwarded his opinion to the full Commission, giving it an opportunity to take further action.
The Commission took no further action.
1 I
1 A ca'reful reading of Chairman Murphy's article discloses that he neither prejudges nor gives the appearance of prejudgment I
of the question whether the petition here in issue should be granted.
Indeed he specifically cautions against prejudgment of ultimate issues here involved.
He notes that, while certain decisions associated with licensing proceedings are difficult, they must be made objectively and on the merits.
He warns, for example, against the result of any attempt to " fudge" the question of contested site alternatives.
~
Consistent with the rulings of the courts.in this area, the Atomic Safety and Licensing Appeal Board (Appeal Board) has
~
noted that the fact.that a member of an adjudicatory tribunal may - _-
have a crystallized point of view on questions of law and policy does not' constitute a basis for his disqualification.
Northern Indiana Public Service Company (Bailly Generating Station, Nuclear
- 1), ALAB-76 at 5 (October 30, 1972).
The Appeal Board thus has clearly distinguished between the prejudgment of a specific pro-ceeding and the possession of views concerning some of the issues which may be involved.
In their motion, the Intervenors charge the Licensing Board with " personal bias".
Motion, 15.
While the precise definition the Intervenors attach to this term is unclear, such a charge, in a literal sense, is outrageous.
Throughout this
, proceeding the Licensing Board has shown the Intervenors considara-tion and fairness without the slightest indication of persona'l' bias.
But perhaps this charge can be explained by the Inter-venors' admitted uncertainty as to the applicable law.
Affidavit, 13.
Section 7(a) of the Administrative Procedure Act provides:
On the filing in good faith of a timely and sufficient affidavit of personal bias.
the agency shall determine the matter as part of the record and decision in the case. 5 U.S.C.A.
S 556 (b).
The term " personal bias" is the same as that used in the federal statute on disqualification of judges, which is interpreted to mean that an " impersonal prejudice" is not enough.
Price v.
Johnston, 125 F.2d 806 (9 th Cir. 194 2), cert. denied, 316 U.S.
677, 62 S.Ct. 1106 (1942).
The purpose of the statute is not to cause an examiner to be disqualified because of his background or associations, but to protect a party from being subjected to j9/
For example, though the Intervenors have refused to specify their contentions in this proceeding beyond a vague description of areas of intended cross-examination, the Licensing Board has permitted them to participate.
See letter from Myron M.
Cherry to Chairman Murphy, June 10, 1971.
When the Intervenors refused to file appropriate interrogatories, as ordered by the Licensing Board, no remedial action was taken.
See Board Orders dated May 13 and June 1, 1971.
Hearings and meetings have been scheduled in an attempt to meet the needs and convenience of the Intervenors, sometimes at the expense of others.
See Board Order dated Janurry 6, 1972.
When the Intervenors defied an order of the Licensing Board to file proposed findings of fact and conclusions of law, the Board, nonetheless, laboriously combed the record in an attempt to cull out and consider the issues raised and contested by the Intervenors over the last two years.
See Initial Decision at 10-11 dated December 14, 1972.
a proceeding before an examiner having a personal bias or pre-
~
judice against him.
See Price v. Johnston, 125 F.2d 806, 811.
No such charge is in fact made here.
Although there are references to the Intervenors in the article, these occur as part of a broadly-based discussion which describes some of the issues which intervenors, in general, seek to raise during licensing proceedings.
The discussion quite clearly indicates that there are likely to be opposing positions as to "the permissible range of issues
" under NEPA; and equally clearly indicates that the final judicial outcome is uncertain.
It does not appear to the Applicant that these references even display a non-disqualifying _ point of view on a general legal question, or give any such appearance.
They certainly do not display any prejudgment of this proceeding
~
and obviously no " personal" bias against the opposing Intervenors.
To the contrary, in other parts of the article, Chairman Murphy supports the participation of Intervenors in licensing
.'is-d proceedings and notes that, while "intervenors cannot place the agency," they can perform a valuable function by helping the agency "to present issues relevant to the ultimate decision, to expose inconsistencies in the applicant's position, to bring to bear information not likely to be brought forth by 11/
the applicant, and to challenge assumptions. "--
l 10/
72 Colum. L.
Rev. at 974-976.
11/
72 Colum.
L.
Rev. at 996.
. The Intervenors do not claim, nor does the record show, that Chairman Murphy, or any other members of the Licensing Board, have any personal interest in the outcome of this proceeding.
Therefore, there can be no room for any inference of a conflict of interest.
In the total absence of a showing by the Intervenors of prejudgment of ultimate result or personal bias, or self interest, there can be no finding of disqualifying bias.
JURISDICTION Finally, we note taat the instant motion nowhere dascribes
~~
the source of this Board's authority "to recall.and revoke" an initial decision.
To be sure, the motion refers to some AEC regulations and to 5 U.S.C.
5556 (b).
Of the regulations referred -
to 10 CFR 7e 771(a) is irrelevant because it applies only to final decisions -- which the decision in question is not -- and, in any case, may be filed only within ten days after the issuance of the final decision.
10 CFR 2. 704 (c) permits a presiding officer to disqualify himself.
While it does not expressly set time limits on when the motion to disqualify must be filed, section 2.704 clearly relates to the government of a hearing which has not been concluded.
So too does the "at any time" languaga of 5 U.S.C.
556 (b) referred to in the motion.
This proceeding has been concluded.
While this Board may, until its jurisdiction is fully exhausted (see 10 CFR 2.717(a))
have authority to take some further actions in some circumstances, its powers at this point are limited.
For example, 10 CFR 2. 718 (j )
confers express power upon a presiding officer to reopen a pro-ceeding to hear further evidence only " prior to an initial decision."
But not even a new evidentiary matter is presented here.
For this Board, rather than the Appeal Board to hear this matter at this late date makes possible a welter of pleadings in difficult bodies to interfere with fair, efficient and expeditious administra-tive proceedings.
CONCLUSION The motion should be dismissed.
~
Respectfully sdbmitted,
~
'~
~
}
Dated:
January 17, 1973 Harold F.
Reis Nwman, Peis & Axelrad 1100 Conr. cticut Avenue, N.W.
Washington, D.
C.
20036 Attorneys for Applicant
^
EXHIBIT _A April 20, 1972 Mr. Myron M. Cherry 109 N. Ucarborn Suite 1033 Chicago, Illinois 60502
Dear Fr. Cherry:
As you kncu, the Adminictrative Ccnference of the United States has undertaken a staff study-of procedural probleas in the licennica of nucicar pcuer plants by the Atomic I:ncrgy Cor.ciauion.
This study has neu proiTuced two tentativa repo.rtc, ons by frofescor Arthur U. Harphy and the other by mercoers of my staff.
A copy of cach is enclosed for your use.
The Committee on Licenses and Authorizations of the Adminictrative Confe: ence will be considerin' these reporta in the naar future.
Your con: cents on the two reports and their conclusions vould be very much appreciated.
SincerSSy yours, Roger C. Cramton Chairman Encs.
EXHIBIT B DISTRIBUTION OF MURPHY FIRST DRAFT April 19, 1972 Dr. James R. Schlesinger, Chairman U.S. Atomic Energy Commission April 20, 1972 Mr. Timothy Atkeson Counsel on Environmental Quality Dr. Richard E. Belzhiser
^
~~
Office of Science and Technology Professor Kurt Borchardt Committee on Interstate and Foroign Commerce, RHOB' Professor David F. Cavers Edrvard University School of Law Mr. Myron M. Cherry Honorable William O. Doub U.S. Atomic Energy Commission Professor S. David Freeman l
University of Pittsburgh Mr. George L. Gleason Atomic Industrial Forum, Inc.
l Professor Harold P. Green George Washington University
(
Mr. Martin R. Hoffman l
U.S. Atomic Energy Commission I
i l
i i
Mr. William F. Kennedy General Electric Mr. Robert Lowenstein Lowenstein and Newman Mr. L. Manning Muntzing Director of Regulation U.S. Atomic Energy Commission Honorable John N. Nassikas, Chairman Federal Power Commission Honorable James T. Ramey Commissioner U.S. Atomic Energy Commission
~
~-
Mr. Anthony Z Roisman Berlin, Roisman and Kessler Mr. Howard Shap.ar U.S. Atomic Energy Commission Nr. David Schoenbrod Assoc. of the Bar of the City of N.Y.
Mr. Arvin Upton LeBoeuf, Lamb, Leiby & MacRae May 3, 1972 Mr. David E. Kartalia Office of General Counsel Professor Mason Woolrich University of Virginia Law School Professor William K. Jones Columbia University School of Law
Jonference records indicate that the Murphy paper-was distributed on or before April 19, 1972. to the members of the Conference's Co==ittee on Licenses and Authorizations, who included.at that time:
Ben C. Fisher, Washington-Attorney Jack K. Busby, President, Pa. Power & Light Co.
William Ming, Chicago Attorney David. Sive, N.Y. Attorney John A. Carver, Jr., Commissioner, FPC Mitchell Milech, Solicitor, Dept. of Interior James T._Racey, Co=missioner, AEC Merritt Ruhlen, Hearing Examiner, CA3 Frank Wille, Chair =an, FDIC Dale Hardin, Cc==issioner, ICC On' June 29, 1972, after personnel changes in the organization of the Cce=ittee,' copies of the Murphy report were sent to Allat J. Kirk, Deputy General Counsel EPA; Professor Owen Olpin, University of Utah Law School; and Harold Russell, Atlanta Attorney.
9
UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION l
In the Matter of
)
)
CONSUMERS POWER COMPANY
)
Docket Nos. 50-329 and 50-330
)
(Midland Plant, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the attached " Opposition of Applicant to Saginaw Intervenors' Motion to Require Revocation of Initial Decision and Declare the Atomic Safety and Licensing Board Biased",
dated January 17, 1973, have been served on the following in person or by deposit in the United States mail, first class, this 17th day of January, 1973.
Alan S.
Rosenthal, Esq., Chairman William J. Ginster, Esq.
Atomic Safety and Licensing Suite 4, Merrill Building Appeal Board Saginaw, Michigan 48602 U.
S. Atonic Energy Commission Washington, D.
C.
20545 Mr. Frank W. Karas (20)
Chief, Public Proceedings Branch Dr. John H. Buck, Member Office of the Escretary of th5 Atomic Safety and Licensing Commission Appeal Board U. S. Atomic Energy Gommission ~'
U.
S. Atomic Energy Commission Washington, D.
C.
20545 Washing ton, D. C.
20545 James A. Kendall, Esq.
William C. Parler, Esq., Member 135 N. Saginaw Road Atomic Safety and Licensing Midland, Michigan 48640 Appeal Board U. S. Atomic Energy Commission David E. Kartalia, Esq.
Washington, D.
C.
20545 U. S. Atomic Energy Commission Washington, D.
C.
20545 Arthur W. Murphy, Esq., Chairman Atomic Safety and Licensing Board Milton R. Wessel, Esq.
Columbia University School of Law Kaye, Scholer, Fierman, Hays Box 38, 435 West 116th Street and Handler New York, New York 10027 425 Park Avenue New York, New ' fork 10022 Dr. Clark Goodman Professor of Physics James N. O ' Connor, Esq.
University of Houston The Dow Chemical Company 3801 Cullen Boulevard 2030 Dow Center Houston, Texas 77004 Midland, Michigan 48640 Dr. David B. Hall Myron M.
Cherry, Esq. (2)
Los Alamos Scientific Laboratory One ISM Plaza P. O. Box 1663 Chicago, Illinois 60611 Los Alamos, New Mexico 87544
Irving Like, Esq.
Reilly, Like and Schneider 200 West Main Babylon, New York 11702 Hon. William H. Ward Assistant Attorney General State of Kansas Topeka, Kansas 66612 Howard J. Vogel, Esq.
Knittle & Vogel 814 Flour Exchange Building Minneapolis, Minnesota 55415 f4f)$$
b$
~ ^
Harold F.
Reis M
y e e
e
_