ML19331B014
| ML19331B014 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 02/11/1977 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ALAB-373, NUDOCS 8007250701 | |
| Download: ML19331B014 (7) | |
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9l UNIk'ED STATES OF AMERICA a
NUCLEAR REGULATORY COMMISSION g
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2 Michael C. Farrar, Chairman
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Dr. Lawrence R. Quarles gg "La f
/f Richard S.
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In the Matter of
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CONSUMERS POWER COMPANY
) Docket Nos. 50-329/
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50-330 (Midland Plant, Units 1 & 2) )
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MEMORANDUM AND ORDER THIS DOCUMENT CONTAINS February 11, 1977 P00R QUAUTY PAGES (ALAB-373)
We have before us the staff's request that we invoke our extraordinary power to review now a series of inter-t.
r locutory Licensing 3 card ordel excluding certain prospec-l tive witnesses from the hearing room while other witnesses j.
f testify.
Because, when the matter first came to our attention, we could not ascertain "the Board's precise rationale for the unusual rulings objected to," we held the matter in abeyance and asked the Licensing Board to tell us whether it intended to continue invoking the sequestration rule and, if so, its reasons for doing so.
ALAB-365, 5 NRC (January 18, 1977).
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On February 7th, the Scard furnished us its response, i J1 i:MEi It gave as its reason for continuing to exclude witnesses 9
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ing is encouraged by the absence of those who =ay be known by the witness-to agree or disagree with his e.csition."
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With respect to our questien as to whether there was
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reason to treat the staff witnesses differently than
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those cf other parties (AI.A3-3 6 5, fn. 2), the Board J
e explained why it sees "no distinction between the 2G presence of staff witnesses or those of other parties."
1 The Scard also opined -- probably in response to our statement that " sequestering prospective witnesses
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i not thought an exclusion order so unique," for such
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crders are "cc==cnplace in other forums."
Al= cst invariably, however, the reason given in these foru=s for
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sequestering witnesses where credibility is in issue-1/
is to insure that subsequent witnesses do not, subcenscicusly C.
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_1/ In this prcCeeding, Ccunsel for the intervencrs suppCrted
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".e credibility of witnesses Icored larce.
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or cross-examination -- to conform to that of witnesses u.
who have preceded them.
Had that reason been given here,
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we would have been inclined, in light of the circumstances of this case, to reject the requests that we review the Board's rulings, particularly if that Board had decided to impose in all instances what it has characterized as the "more stringent rule" of barring the witnesses frem
" discussions among themselves and reading of the transcript."
Br. that as it may, the question before us is not whether we would rave acted just as the Licensing Board did had we been sitting in its place.
That Board is much closer than we are to the problems involved in management of its hearings and must be given broad dis-cretion to conduct the day-to-day proceedings before it in the manner it perceives as best calculated to elicit
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the truth.
Accordingly, if we do not have in our hands by February 18, 1977, a renewal of the pending requests that we intercede, the petition for directed certification will be deemed denied.
Any party renewing its request shall furnish us at the same time with a memorandum explaining why, in that party's view, it was an abuse of discretion for the Board below to conclude that the steps it has been taking, including" eiclus' ion of that
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ul party's witnesses, will encourage "the spontaneity of the person testifying" and therefore afford greater 2/
assurance that the whole truth is being brought out.
Responses to any renewed requests are to be mailed by i-March 1, 1977.
j f-It is so ORDERED.
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FOR THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
/A4' /M h
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hargaret E.
Du Flo Secretary t.o the Appeal Board 1
-2/ Of course, the memoranda may address such other topics as the parties deem appropriate to bring to our atten-l tion.
We remind them that we still have their earlier l
papers; of course, the Board's rulings at those sessions-of the hearing conducted subsequent to the issuance of h
our order, as well as the Board's written response to our order, may require that their arguments be cast in
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UNITED STATES'0F AMERICA' "i
NUC1. EAR REGUI.ATORY COM:ilSSION
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In the Matter of
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55 5 CONSID2RS PJ..ER COMPANY
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Docket No. (s) 50-329
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50-330
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(Midland Flant, Unit Kos. I and 2) f.5
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CERTITICATE OF SER'llCE I hereby certify th:
I have this day served the foreSoing document (s' upon c ch persen designated on the of ficial service' list cenniled bv
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the Of fice of the Secret:ry of the Cor.aission in this proceedic; in
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accordance eith the requirc=ents of Secticn 2.712 of 10 CFR -Part 2-
.g Rules of ?:actice, of the Nuclear Regulatory Commission's Rules and cac -
Regulaticas.
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Dated at 1-:ashington, D C. this p
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Office of 'the Secretary ofpthe Cornission g-
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UNITED STATES OF AMERICA NUCLEAR REGLUTORY COMMISSION
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In the Matter of
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CONSUMERS POWER COMTANY
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Dockat No. (s) 50-329
)
50-330
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(Midland Plant, Units 1 and 2)
)
)
" 1 27 SERVICE LIST Frederic J. Coufal, Esq., Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Co= mission Washington, D.C.
20555 Dr. Ecmeth A. Luebke James A. Kendall, Esq.
Atomic Safety and Licensing Board Currie and Kendall U.S. Nuclear Regulatory Comnission.
135 North Saginaw Road Washington, D.C.
20555 Midland, Michigan 48640 Dr. J. Venn Leeds, Jr.
Judd L. Bacon, Esq.
10807 Atwell
-Consu=ers 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 Co= mission Merrill Building, Suite 4 Washington, D.C.
20555 Saginaw, Michigan 48602
.,z Myron M. Cherry, Esq.
Milton R. Wessel, Esq.
One IBM Plaza Dow Chemical Chicago, Illinois 60611 4 Little Lane White Plains, New York 10605 Harold F. Reis, Esq.
Lowenstein, Newman, Reis & Axelrad Honoracle 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 45913 State of Kansas i.
Topeka, Kansas 66612 Lee Nute, Esq.
l Michigan Division
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Irving Like, Esq.
The Dow Chemical Company
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Reilly, Like and Schneider 47 Building 200 Weat thin Street Midland, Michigan 48640 Jabylon, New York 11702 U
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50-329,.-330
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-Anthony Z. Roisman, Esq.
Roisman, Kessler and Cashdan
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1025 - 15th Street, N.W.
22-Washington, D.C.
20005
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David J. Rosso, Esq.
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- R. Rex Renfrow, III, Esq.
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Isham, Lincoln & Beale 1050 - 17th Street, N.W.
Washington, D.C.
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Caryl A. Bartelman, Esq.
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Isham, Lincoln & Beale
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One First National Bank Plaza
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1 Chicago, Illinois 60603 Ms. Mary Sinclair 5711 Summerset Street-
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Midland, Michigan 48640 ci
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Mr. Steve Gadler, P.E.
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2120 Carter Avenue St. Paul, Minnesota 55108 1
Grace Dow Memorial Library
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1710 West St. Andrew Road l
Midland, Michigan 48640 l-4 p
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