ML19331B233

Motion to Waive Filing of Brief in Support of Exceptions to ASLB 770923 Decision.Exceptions Are Emergency Appeal Re Narrow & Uncomplicated Legal Issues.Proof of Svc Encl

ML19331B233
Person / Time
Site:	Midland
Issue date:	10/03/1977
From:	Cherry M, Flynn P CHERRY, M.M./CHERRY, FLYNN & KANTER, Saginaw Intervenor
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML19331B224	List: ML19331B223 ML19331B228 ML19331B229 ML19331B233
References
NUDOCS 8007280826
Download: ML19331B233 (4)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD OR IN THE ALTERNATIVE BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of )

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CONSUMERS POWER COMPANY ) DOCKET NOS. 50-239

) 50-330 (Midland Units 1 and 2) ) ,

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Suspension Proceedings ) p

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' OCT 31977 > T MOTION TO WAIVE FILING OF BRIEF 11 4 llL"J'

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/p Intervenors other than Dow Chemical Company 4 tu hereby move the Commission and/or the Atomic Safety and Licensing Appeal Board, as applicable, for the entry of an order waiving any obligation to file a brief in supporc of Intervenors' exceptions to the September 23, 1977 Order of the Licensing Board, filed by Intervenors together w:;th this Motion, on the following grounds:

1. This is an emergency appeal involving narrow legal issues. It deals with established pi-inciples of law, most if not all of which have been set forth in previous rulings of the Court of Appeals and the Appeal Board in this

' case.!

2. The legal issues are set out in the Licensing Board's Order and the Court of Appeals' decision and they are not complicated. Our position concerning the legal issues g g'I

El>*v is set out in Intervenors' cxceptions and was also spelled out in Intervenors' Proposed Findings and legal briefs filed with the Licensing Board.

3. This matter may well be before the Appeal Board as a referred ruling, independent of Intervenors' exceptions, by virtue of ordering paragraph 3 of the Licensing Board's September 23, 1977' decision, which would in effect bring the whole record up to the Appeal Board including the findings and briefs of the parties below.

4. Intervenors and their counsel labor under serious difficulties concerning fees and expenses, and it would be an undue burden on them to require them to file an additional brief on the exceptions. Under the circumstances, including the provisicas of 10 C.F.R. S 2.770 (a) and the fact that by s

virtue of the Licensing Board's order the Appeal Board has before it the entire record (which includes the proposed findings and the various applicable legal authorities), it would be unconscionable to require Intervenors to prepare a detailed brief.

5. Intervenors will, if the Appeal Board wishes, set forth their position in a letter which includes references l

to specific portions of Intervenors' Proposed Findings and' briefs _ filed with the Licensing Board.

WHEREFORE, for the above reasons we ask the Appeal Board to waive Intervenors' filing of a brief and ask the Appeal Board to decide this matter, in accordance with the legal rules concerning suspension and the decision and mandate of the Court of Appeals in this case, on a prompt basis.*

Respectfully, One of the Attorneys for Intervenors Other Than Dow Chemical Company -

• By the filing of our exceptions on this motion we are not admitting that the Appeal Board necessarily has jurisdiction.

And we reserve our right to take any other steps including going directly to the Court of Appeals for an order to enforce the mandate.

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MYRON M. CHERRY PETER A. FLYNN One IBM Plaza Suite.4501 Chicago, Illinois 60611 (312) 565-1177 PROOF OF SERVICE I certify that on October 1,1977, I served, by Special Messenger, five copies of the Exceptions of Intervenors other than Dow Chemical Company to the September 23, 1977 decision of the Licensing Board and of Intervenors' Motion to Waive Filing of Brief herein on the Secretary to the U.S.

Nuclear Regulatory Commission, Washington, D. C. 20555, and three copies of the Exceptions and the Motion on the

• Secretary to the Atomic Safety and Licensing Appeal Board, .

U.S. Nuclear Regulatory Co= mission, Washington, D. C. 20555, and filed the Bigned original of the Exceptions and the Motion with the Docketing and Services Section, U.S. N : lear Regulatory Commission, Washington, D. C. 20555. I further certify that on October 1, 1977, I mailed copies of the Exceptions and Motion, first class mail, postage prepai,d, to the persons and addresses listed below. *

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Frederic J. Confal, Esq.

Chairman Dr. Emmethl A.Luebke Atomic Safety and Licensing Boar @

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commissio U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 5 Judd L. Bacon, Esq. Dr. J. Venn Leeds Consumers Power Company 10807 Atwell 212 West Michigan Avenue Houston, Texas 77096 Jackson, Michigan 49201 Richard K. Hoeffling, Esq.

Lee Nute, Esq. U.S. Nuclear Regulatory Commissio General Counsel's Office Washington, D. C. 20555 Dow Chemical Company Midland, Michigan 48640 Michael I. Miller, Esq.

Caryl Bartelman, Esq.

Isham Lincoln & Beale One First National Plaza, 42d Flo Chicago, Illinois 60603 I