ML19331A775

Motion Asserting That Saginaw Intervenors' 730107 Claim of ASLB Bias Is Untimely & Beyond ASLB Jurisdiction.Urges Aslab to Act on Applicant Motion on Expedited Basis.Certificate of Svc Encl

ML19331A775
Person / Time
Site:	Midland
Issue date:	01/09/1973
From:	Reis H CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8007230806
Download: ML19331A775 (6)

Text

o UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD IN THE MATTER OF )

) Docket Nos. 50-174 CONSUMERS POWER COMPANY ) and 50-330

)

(Midland Plant, Units 1 and 2) )

MOTION OF APPLICANT, CONSUMERS POWER COMPldiY, RELATING TO PROCEDURES AFFECTING SAGINAW INTERVENORS ' CLAIM OF BIAS On Sunday, January 7, 1973, the Saginaw Intervenors filed and served by mail a motion entitled " Motion and Supporting , __

Argument to Require the Presiding Of ficer to Recall and Revoke -

the Initial Decision and to Declare the Atomic Safety and Licensing Board Biased", together with a supporting. affidavit -

executed by its counsel, Myron M. Cherry, Esq. That motion was received by counsel for the Applicant, Consumers Power Company, today.

The basis for the claim of bias made in the motion is some of the contents of an article written by Arthur W. Murphy and entitled "The National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace?" The article appears in the October issue of the Columbia Law Review, 72 Col. L. Rev. 963 et seq. Professor Murphy was the Chairman of the Atomic Safety and Licensing Board which tried this matter below.

Although the Saginaw motion is ostensibly addressed to the Atomic Safety and Licensing Board, it betrays some doubt whether

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that Board is in fact the appropriate forum to consider and act upon the matter at this time. For example, the footnote which appears on pages 2 and 3 of the motion states that copies have been sent both to the Atomic Safety and Licensing Appeal Board and to the Commission itself. In addition, although the language of the footnote is somewhat garbled, it suggests that if the presiding officer of the Licensing Board deems himself without authority, he should immediately refer the matter to this Board or the Commission.

It is our view that this motion is now beyond the juris- _

diction of the Licensing Board and comes too late for consideration by that body. In any event, we believe that, as"a matter of efficient administration at this point, the motion should be dealt with by the Appeal Board. In this connection we note that in the -

last sentence of the footnote referred to above, the Saginaw Intervenors state that they will treat the motion as "having been denied for purposes of appeal . . ." unless they hear to the con-trary by January 15, 1973, the date on which their exceptions must be filed. However, under 10 CFR 2.730 and 2.710 the responses of the parties to this proceeding, other than the AEC Regulatory Staff, to the instant Saginaw motion will not in fact be due until January 17, 1973; and the Regulatory Staff will have an additional five days, i

In the circumstances the Applicant, Consumers Power Company, l believes that the most efficient and expeditious way in which l

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this motion should be handled is for this Board to issue an order to the effect that the motion will be considered by it as part of the appellate process, and not by the Licensing Board. In this connection we note that oven if the matter should be decided below, a determination that the motion is without merit and that disquali-fication is inappropriate would, in any event, have to be referred to the Commission and by delegation to this Board. See 10 CFR 2.704(c). In addition, parallel proceedings before both bodies could caly add to staggered appeals, confusion and, inevitably, otherwise avoidable delay.

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Moreover, we would also suggest that, since the Saginaw Intervenors will file exceptions on or before January 15, 1973,

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this Board fix the date on which responsive pleadings will be

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required to' be filed with respect to those exceptions (see 10 CFR ' ,

2.762) as the date for filing responsive pleadings to the instant Saginaw motion. In this connection, we note that the date for filing responsive pleadings to the Mapleton Intervenors' exceptions runs from January 3, 1973, not from January 15, 1973. The pro-posal which we make would simply reduce the multiplicity of filing dates with respect to the various contentions of the Saginaw Intervenors.

i In order to avoid procedural confusion and to make it possible for the participants to meet their filing requirements, l

9 it would be appreciated if this motion were acted upon on as expedited a basis as possible.

Respectfully submitted, NEWMAN, REIS & AXELRAD 1100 Connecticut Avenue, N.W.

Washington, D. C. 20036 By 4f' -

Harold F. Reis Counsel for Dated: January 9, 1973 Consumers Power Company W #

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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of )

)

CONSUMERS POWER COMPAN.Y ) Docket Nos. 50-329 and 50-330

)

(Midland Plant, Units 1 and 2) )

_s CERTIFICATE OF SERVICE I hereby certify that copies of the attached " Motion of Applicant, Consumers Power Company, Relating to Procedures Affecting Saginaw Intervenors' Claim of Bias", dated January 9,1973, have been served on the following in person or by deposit in the United States mail, first class , this 9th 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. Atomic Energy Conmission Washington, D. C. 20545 Mr. Frank W. Karas (20)

Chief, Public Proceedings Branch

• Dr. John H. Buck, Member Office of the Secretary of the Atomic Safety and Licensing Commission Appeal Board U. S. Atomic Energy Commission U. S. Atomic Energy Commission Washington, D C. 20545 -

Washington, 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 ll6th Street and Handler New York, New York 10027 425 Park Avenue New York, New York 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 Alames Scientific Laboratory 135 South Lasalle P. O. Box 1663 33rd Floor Los Alamos, New Mexico 87544 Chicago, Illinois 60603

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By person mad by mail.

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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

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' Harold F. Reis h

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