ML19331B188
| ML19331B188 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/15/1977 |
| From: | Coufal F, Leeds J, Luebke E Atomic Safety and Licensing Board Panel |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007280753 | |
| Download: ML19331B188 (6) | |
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3Fr330 (Midland Plant, Units 1 and 2)
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MEMORANDi.9 d-/5-77 The Regulatory Staff has moved the Appeal Board for direct certification of a motion previously made to this Board for censure of Myron M. Cherry, Esq.
Just as the Board has consistently deferred ruling on c-aer motions involving matters which are secondary to the main issue of suspension, the Board has deferred ruling on that motion.
ThemotbonoftheRegulatoryStafftotheAppealBoardfor direct certification compels this Board to place into the public record some of its reasons for deferring rulings on such secondary matters.
The Board's work in developiing findings of fact and writing the initial decision will assist the Board's ruling on these matters.
Preliminary research by the Board indicates that it is within the discretion of the Board to defer action on disciplinary motions if prejudice to the conduct of the IHIS DOCUMENT CONTAINS POOR QUAL.lTY PAGES 8007280 7 6 3 j
2 proceeding or to the public interest would occur.
(Sacher v.
U.S., 343 U.S.
1, 11, 96 L.Ed. 717, 724, 72 S.Ct. 451 (1951).)
This Board has been acutely concerned throughout the suspension hearing.with the length of the hearing and its impact on the public int'erest.
The Aeschliman case was filed on August 6, 1973 and decided by the Court of Appeals on July 21, 1976.
Almost a year has passed since the Court remanded the case to the Commission.
For many reasons this Board has been unable to act on the suspension-of-construction issue.
Since 1973, work has progressed at
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the Midland site and now a substantial percentage of the 1.7 billion dollar proj ect has been completed.
Work con-tinues.
One obvious result of the remand proceedings could be that the plant will not be completed.
If that result occurs, each added day of construction contributes to a waste of resources to the detriment of the public interest.
From the beginning, this Board believed that the public interest and the private interests involved in this case would best be served if action on secondary issues--
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3 no matter how important in and of themselves--was postponed until the main issue of suspension was determined.
Only if the Board decided that'the record would be. incomplete, did the Board divert the parties from the primary issue and require the p'arties to complete the record.
The Bo'ard has consistently followed this plan.
For example, the. prep-aration of the " Temple" testimony involves issues of equal if not of significantly more importance than the views of an attorney with regard to the performance of the Staff and its attorneys.
The Board required the parties to complece the record on the preparation of the " Temple" testimony and then postponed action until the primary issue of suspension was decided.
S Preliminary research by the Board raises the question of how far trial counsel may go in his criticism of the Staff of a government agency in a case in which he is involved.
Some of these considerations are applicable l
here but to fully research the problem would delay the suspension hearing.
Furthermore, to grant the complete motion of Staff would mean that if the Staff felt that a repetition of_the e
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alleged conduct had occurred, the Board would be required to automatically institute a proceeding pursuant to 10 CFR S 2.713.
The Board always has the right to institute a 5 2.713 proceeding sua sconte while it has jurisdiction over the remand hearings.
But any 5 2.713 proceeding against an attorney now would only divert the parties from the main issue.
The public interest requires that the main issue of suspension be decided as soon as possible consistent with due process requirecents and this. Board has taken " pains to insure that parties are fully heard before substantial issues are decided against them". (In the Matter of Consolidated Edison Company of New York, Inc.
J (Indian Point Station Unit No. 2), ALAB-399, Slip Opinion at p. 3'8, May 20, 1977.)
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l The motion for censure, filed March 25, 1977, came at a time when the evidentiary hearing was nearly finished.
l The hearing did end on May 13 but only because the Board elected to receive some remaining evidence from all parties by written submission and not by the appearance of witnesses.
Those submitt'a.ls.due on May 20 and on May 27 have been received.
The time for filing proposed findings is now running.
Considering the size of the record, the number of
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- s exhibits, and the complexity of the issues, this schedule is most difficult.
The-Board likew'ise has been and is on a difficult schedule resulting from this and other NRC hearings and will be able to meet only one day in the coming two weeks.
Writing this Memorandum has taken time which would have been better spent deciding the suspension issue.
We are as conscious as anyone of the seriousness of the matters involved in this motion for censure and the various other motions made under 10 CFR S 2.713.
Such charges should be resolved as quickly as possible consist-ent with other considerations.
We see many questions in these motions which require and deserve a substantial amount of Board time to resolve.
The discussion above is necas-sarily incomplete and not meant to be, of course, this Board's final answer.
The definition of issues and research has not been completed.
As soon as we issue our decision on suspension, we will resolve promptly all matters involv-ing conduct of attorneys.
It is difficult to see how stopping now to devote our attention to the censure question 4
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or any other side issue can do anything but frustrate the public interest.
ATOMIC SAFETY AND LI rNSING BOAF.D
$l Frederic J.
Coutal, Chajlrman d
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- A n.-:..c M Emmeth A.
uebke, Member YH Y I
b Venn Leeds, Member Dated at Bethesda, Maryland, this 15th day of June, 1977.
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