ML19331B118
| ML19331B118 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/14/1975 |
| From: | Mark Miller, Renfrow R CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007250808 | |
| Download: ML19331B118 (7) | |
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NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPFAL BOARD In the Matter of
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CONSUMERS POWER COMPANY
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Construction Permit
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Nos. 82 and 82 co e
(Midland Plant, Units 1 and 2
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FOTION OF CONSUMERS POWER CO. TO STRIKE FXCEPTIONS FILED BY
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SAGINAW INTERVENERS AND MEMORANDA t-N.
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Consumers Power Co. (C. P. Co.) by their attorneys Isham, Lincoln & Beale, pursuant to 10 CFF 2.762 respectfully request that the Atomic Safety and Licensing Appeal Board (Appeal Board) strike the exceptions filed by Saginaw Intervencrs on March 14, 1975 on the grounds that Saginaw has failed to file a Brief in Support of its Exceptions.
INTRODUCTION 1.
On December 3, 1973 C. P. Co. was ordered to show cause why all activities under Construction Permit Mos. 81 and 82 for the Midland Facilities should not be suspended pending a showing by C. P. Co. that it was in compliance with the Atomic Energy Commission's (Commission) regulations governing quality assurance.
Following C. P. Co.'s answer to the Order to Show Cause, the Commission on January 21, 1974 issued a Memorandum and Order specifying the following two issues to be decided 8007esof0f h
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(1)
Whether the licensee is implementing its quality assurance program in compliance with Commission regulations; and (2)
Whether there is reasonable assurance that such implementation will continue through-out the construction process.
2.
Following a number of pre-hearing conferences and three days of hearings, the Doard issued an Initial Decision on September 25, 1974 in which the neard concluded :
(1)
C. P. Co. is implementing its quality assurance program in compliance with Cc= mission regulations; (2)
There is reasonable assurance that such implementation will continue throughout the construction process; and (3)
Construction Permit Mos. 81 and 82 issued to C.
P. Co. for the ?tidland Plant, Units I and II should not be suspended, modified or revoked.
3 On September 30, 1974 Saginaw Intervenors requested the Board to reconsider the Initial Decision and/or to reopen the record of this proceeding.
On October 17, 1974 the Appeal Board granted Saginaw's request for an extension of time for filing of exceptions.
The remaining parties to this proceeding opposed Saginaw's motion to reopen, and the Board scheduled an oral argument on November 18, 1974.
On March 5, 1975 the Board issued a Femorandum and Order which concluded that "Saginaw's petition fails to present reasons which warrant a reopening of the record, or reconsiderr' ion of our Initial Decision".
On
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March 14, 1975, Saginaw filed, pursuant to 10 rFR 2.762 and the Appeal Board's order of October 17, exceptions to the Initial Decision and the Supplemental Initial Decision.
ARGUMENT 4.
10 CFR 2.762 requires that any party who wishes to appeal an Initial Decision must file his exceptions within seven days of service of the Initial Decision.
Saginaw Intervenors' filing of March 14, 1975 fulfills this requireront.1 However, 10 CFR 2.762 also requires that a Prief in support of the exceptions be filed within fifteen days after the exceptions are filed.
Since this fifteen-day period expired on Saturday, March 29, 1975, the due date of Saginaw's Brief became Ponday, March 31, 1975.2 As of April 14, 1975 Saginaw had not filed a Brief in support of its exceptions.
Since Saginaw has not complied with the requirement to brief its exceptions and has not requested an extension on a timely basis, the exceptions should be dismissed in accordance with 10 CFR 2.762(e).
Indeed the Appeal Board has previously ruled that the failure to file a brief detailing the basis for 3
an appeal is grounds for striking that appeal, and that the failure to file a brief in support of exceptions to an Initial 1.
10 CFR 2.710 provides for an additional three days when the party required to take an act receives service by mail.
2.
3.
Mississippi rewer & Light Co. (Grand Gulf tauclear Power Station, Units I and II) ALAB 140, PAI-73-8, p. 575, August 13, 1973.
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Decision is sufficient reason for an Appeal Board to refuse to consider those exceptions.4 This relief is particularly appro-priate in view of Saginaw's failure to meet its obligations in this proceeding; i.e. Saginaw declined to examine the documents voluntarily produced by C. P. Co. during the discovery process; they declined to file any written testimony (Initial Decision p.
13, par. 21) even though they had the burden of proof at the hearing (Initial Decision p. 15, par. 26), they filed no written trial brief despite a specific request by the Board (Initial Decision p.
14, par. 22), they did not participate in the evidentiary hearing (Initial Decision p.
16, par. 28), they did not file a Memorandum requesting official notice be taken of certain documents alleged to constitute their case (Initial Decision p. 19, par. 35), they did not file proposed findings of fact and conclusions of law (Initial Decision p. 19, par. 35) and finally, they did not appear at the oral argument on their Fotion to reopen the hearing (Memorandum and Order, Parch 5, 1975 at p.
5)..
5.
The participation of Saginaw Intervenors in the adjudicatory process in this proceeding seems to parallel their actions in the construction permit proceedings for this plant.
In one of its opinions in that proceeding, the Appeal Board 4.
Long Island Company (Shoreham Nuclear Power Station) ALAB 156, RAI-73-10 pp. 831, 832-33, October 26, 1973.
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m (5) noted that:
participation in this manner, in our opinion, subverts the entire adjudicatory process the right of participation in an administrative proceeding carries with it the obligation of a party to assist in ' making the system work ' and to aid the agency in discharging the statutory obligations with which it is charged.5 Since Saginaw has consistently failed to meet these obligations in this proceeding, C.
P. Co.'s request to strike Saginaw's exceptions should be granted.
IIIiEREFORE, based on the foregoing C.
P. Co. respectfully regi 'sts that the Appeal Board strike the exceptions filed by Saginaw Intervenors and affirm the Initial Decisions of September 25, 1974 and March 5, 1975.
Respectfully submitted,
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Michiel I. Miller fr/7
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R.' Ret Renf row, III Attorneys for Licensee Consumers Power company DATED:
April 14, 1975 ISHAM, LINCOLN & BEALE One First National Plaza, Suite 4200 Chicago, Illinvis 60603 (312) 786-7500 5.
C. P. Co. (Midland Plant, Units I and II) ALAB 123, PAI-73-5, 331 at 332 (May 18, 1973).
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UNITED STATES OF IJ1 ERICA NUCLEAR REGULATORY COMMISSION BEFORE Tl!E ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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Construction Permit CONSUMERS POUER COMPANY
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Nos. 81 and 82
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(Midland Plant, Units 1 and 2)
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(, 7 NOTICE OF FILING I%g.
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C PROOF CF SERVICE A
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Mr. Richard S. Sal: man Chairman Atomic Safety and Licensing 7ppeal Board U. S. Nuclear Regulatory Commission Washington, D. C.
20545 Mr. Michael C. Farrar Member Atomic Safety and Licensing Appeal Foard U.
S. Nuclear Pegulatory Commission Washington, D. C.
20545 Dr. Lawrence R. Quarles Member Atomic Safety and Licensing appeal Poard U. S. Nuclear Eagulatory Commission Washington, D. C.
20545 Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C.
20545 Secretary U. S. Nuclear Regulatory Commission ATTN:
Mr. Frank W.
Faras Chief, Public Proceedings Staff Washington, D. C.
20545 Mr. James P. Murray, Jr.
Chief Rulemaking & Enforcement Ccansel U. S. Nuclear Regulatory Commission Washington, D. C.
20545
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John G. Gleeson, Esq.
The Dow Chemical Company 2030 Dow Center Midland, Michigan 48640 Myron F. Cherry, Esq.
One IBM Plaza Suite 4501 Chicago, Illinois 60611 Laurence M. Scoville, Jr., Fsq.'
Clark, Klein, Winter, Parsons
& Prewitt 1600 First Federal Building 1001 Woodward-Avenue Detroit, Michigan 48226 PLEASE TAKE NOTICE that I have this day filed with the Nuclear Regulatory Co==ission the "otion of Censurers Power Co. To Strike Exceptions Filed By Saginaw Intervonors And Menoranda In Support Thereof, a copy of which is hereto attached and herewith served on you.
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W R. Pc2 D.enffjra, III Ore of the Attorneys for consumers Power Company DATED:
April 14, 1975 ISHAM, LINCOLN & BEALE One First National Plaza, Suite 4200 Chicago, Illinois 60603 (312) 786-7500
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