ML19331A928
| ML19331A928 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 10/11/1972 |
| From: | Murphy A Atomic Safety and Licensing Board Panel |
| To: | CHERRY, M.M./CHERRY, FLYNN & KANTER |
| References | |
| NUDOCS 8007240520 | |
| Download: ML19331A928 (6) | |
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/b-//* Y UNITED STATES OF AMERICA NN'U' A'IOMIC ENERGY COMMISSION
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in the Matter of
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Docket Nos.
CONSUMERS POWER COMPANY 330 (Midland Plant,
[* lits 1 ad 2)
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ORDER On June 29, 1971, pursuant to Board Order, Intervenor Dow Chemical Company (Dow) delivered to Myron M.
Cherry, Esq., Counsel for Saginiiw Intervenors
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(Saginaw), a lis t of effluents which Dow anticipa ted would be released from its Midland piant in 1975.
The purpose of the lis t was to permit Saginaw to consul t potential witnesses as to the claimed " synergistic" interaction of radioactivity released from the proposed reactors and the chemical effluents from Dow.
The list was expressly made subject to a protective Order previously issued by the Board with respect to other documents furnished by the Applicant to Saginaw.
That Order provided, inter alia, that Counsel would not make copies of the documents or show them to anyone except persons assisting him at the trial, and as to them if they agreed i
1 in writing to be bound by the terms of the Order.
8007240 QO G
On two subsequent occasions.. July 2:1 1971.
(Te 1,691) and November 23, 1971, (Tr. 5,0<l9 )
(on the la t ter occasion subject to a written application which was never made), the Board expressly re fused to order the document furnished to Counsel for Maple ton Intervenors (a separate group of individuals opposing the plant).
On May, 1972, in the course of the hearing o'n
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onvironmental questions, it developed that Counsel for Mapic ton in tervenors had a copy of the documen t-~wh ich,
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he s ta ted, he had received from Mr. Cherry.
Mr. Cher,ry was no t presen t.
On the following day, Dow moved for an order consolidating the interventions of Mapleton and Saginaw on the ground tha t -- as demons tra ted by the treatment of the effluent list -- Counsel were operating as though there was a joint intervention.*
An Order to show cause why the consolida tion should not be ordered, returnable on May 30, 1972, was issued on May 19, 1972.
prior to the return date, Mr. Cherry filed opposing papers.
By way of background, it should be noted that Mr. Cherry had earlier requested an adjournment of the hearing on environmental ma tters until the end of the na tional ECCS hearing in which he was appearing, asserting in support of thal motion, that he had a t tempt ed unsuccess rulIy to secure substitute counsel for the Midland hearing and tha t unless that hearing was postponed Saginaw would be
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unrepresented.
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In his papers he of fered no explanation of his treatment of Ihe elIluont l is t, but instead reiterated his objections to the lloard's f a ilure to grant his mo t ion for an indefinite adjournment.
On \\tay 30, 1972 (Tr. 7.089) the 1:oa rel orrli. red ile. Checry, on or he fore.inne 9, 1972 Io serve a sworn s ta tement of the circums tances of the transfer of the ef fluent _lis t and an explana tion of why the Board should not hold him in con, tempt of its protective O rde r.
At Mr. Cherry's requests, the time for his response was extended until the end of August, 1972.
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11y a f fidavit da ted Augus t 30, 1972, Mr. Cherry has responded.
No other parties have._ filed any response, except the Attorney General of the State of Michigan,who has filed a " statement" in support of Mr. Cherry.
Mr. Cherry states in his memorandum that he does not recall giving the document to Mr. Like, Counsel for Mapleton, but appears to concede, in light of Mr. Like's statement, that he must have done so.
The Board, also, accepts Mr. Like's statement.
Mr. Cherry's main reliance is on several events relating.to,the effluent list which, in his view, indicates an understanding on the part of the Board and other Counsel that he would work with Counsel for Mapleton on questions
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of syru rgism.
In particular he relies on a colloquy with Iln. (*ha i r nau at Tr.
1,691-5.
Tht-floa rti eloes not in= 1 leve that the Chairman's remarks can f airly be construed as Mr. Cherry does.
It seems clear to us that what was contemplated was that Mr. Cherry would take as his witnesses those people to whom Mapleton Counsel would have shown the document if permitted to see it.
Mr. Cherry also seems to suggest that the original theproviskonsof the protective subjec t ion of the document to Order was inadvertent or, indeed, since the.information
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contained therein was not claimed to be proprietary,'that it could not validly be subjected to the Order.
This latter theme is set forth more directly in the Statement i
of the, Attorney General of Michigan.
l The notion that there are no circumstances
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which would justify the Board's requiring the informa tion l'
to be kept confidential is wholly unfounded.
Whether the Board would have required that the information be kept confidential, in light of all circumstances, had the question been argued at the time is, of course, sheer l
l speculation.
The fact is that it was made subject to the l
I protective Order and that Mr. Cherry accepted the document subject to the provisions of tha t Order.
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The Board is sa tisfied that the Order was valid and that it was violated.
There are, to be sure, ex tenua ting circums'.ances ; as Mr. Like has s ta ted (Tr. 5,569), Counsel f or Maple ton and Saginaw were working toge ther on the case, and the transfer of the document apparently took place in the course of tha t collabora tion.*
- Nevertheless, Mr. Cherry's conduct manifes ted, if not lack of respect for the Board, at least an indif ference to proprie ty which cannot be t61 era ted.-
In that connection, we reject the argument of the Attorney General of Michigan that the issuance of the Order to Mr. Cherry "can serve to. deter public spirl'ted lawyers".
The Board is well aware of the dif ficulties of representing public intervenors in complex ma t ters such as these.
But surely, being public spirited does not excuse lawyers from obeying rules.
Under~the existing system, judgments on environmental ques tions are made in the context of a legal proceeding and the legal process must be respected.
For Boards to ignore the needs of orderly administrations would not serve the ends of justice -- or the environment.
There is, of course, nothing wrong with that although we note in passing that such a posture is quite inconsistent with Mr. Cherry's contention in his motion for adjournment.
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The violation of any Order is in our view a se r inies maller.
Nevertholoss, we do not feel that ;in y asl:lilional action sliould be taken by f lie IPsa rd.
The ine i len t was an isoln'ted event in a line irial: we are al is f ied that it was not willful or i n t enried t o lie contemptuous.
Accordingly, we accept Mr. Cherry's explanation and consider the matter closed.
FOR THE A10MIC SAFETY AND LICENSING BOARD b S e:-1 A/Y.s:O,4a,-
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By Arthur W. Murphy, Chairmah
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Dated at Washington, D.
C.,
this 11th day of October, 1972.
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