ML19338C205

Responds to ASLB & Encl 780313 Motion & Stipulation Re Midland Special Proceeding Settlement Proposal.Discusses NRC Authority to Reimburse Expenses. Commission Declines to Endorse Paragraph 9 of Stipulation

ML19338C205
Person / Time
Site:	Midland
Issue date:	04/28/1978
From:	Hendrie J NRC COMMISSION (OCM)
To:	Deale V Atomic Safety and Licensing Board Panel
Shared Package
ML19338C191	List: ML19338C190 ML19338C195 ML19338C198 ML19338C200 ML19338C202 ML19338C204 ML19338C205 ML19338C206
References
ISSUANCES-SP, NUDOCS 8008050653
Download: ML19338C205 (2)

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' _< EOCLEAR REGULATORY COMMISSION,.,' * ~

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Dear Mr. Dealeil The Co=nission. has considered the proposal.for. settlement of the Midland specia'l proceeding incorporated in the " Motion and_ Stipulation" dated March 13 1978, which you transmitted.to us by letter of March 21,1978.

In essence alliof the parties have agreed to a. settlement which would insofar as is possible place all parties and the record in the position

^they would be if nothing had ever happened in this catter.

The terms withdraw all charges and terminate the proceeding with prejudice.

They further provide that (1)' there will be no record of the proceed-ings nor of the charges and. letters which led to them, and (2) notice

.of withdrawal of char.ges and termination of the proceedings will be published and also sent to a'll parties with whom there had been cor-respondence. about the proceedings.

These features of the proposed settlement seem to us to be straightforward and worthy of Comission approval.

He do not find persuasive the contrary arguments' advanced by counsel for Consumers Power Company in his letter to the Secretary dated April.10,1978.

'The final term of ~the settlement, paragraph 9, is unilateral in nature and states --

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.that Myron M. Cherry enters into this stipulation j

on the further condition that the Muclear Regulatory Commissi~on shall'. pay actual out-of-pocket expenses not in excess of:51,000 incurred 'oy or on behalf.of Myron M. Cherry in connection ~ with the Special Proceeding.

R An agency of the government is. not as free as a private party to deal in a settlement. ' There^ is a serious question whether the Co.7 mission has the legal authority in these circumstances to make a payment such as Mr. Cherry requires - Were the Comission ' disposed, on policy

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f grounds,. to make this payment, the question of its authority to do 890soff53 o * % do M,.d, q

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- April 28,1978

'9alentine B. Deane, Esq.

so would first have to be resolved in the affirmative by the-Ccmptroller General. ~We.need.not, '.however, seek a formal ruling of the Comptroller because we believe.that the, proposal for payment is unsound on policy a-

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Normally private attorneys participating in our " proceedings', whether l

they represent intervenors, utilities, or others, pay their own l

expenses. It seems.to us that the usual practice should obtain in,

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this. case;-

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. We have considered the fact that the involv2d staff attorneys will be e'31e.to walk' away without expense and the possible argument that, l

therefore, so' should Mr. Cherry.

Such an argument seems flawed. ' The analogy between priva e practioners-pd government lawyers 'in this situation is imprecise.

Government employees are entitled to repre-sentation by counsel and payment of associated expenses when they are l

charged.with misconduct-in the performance of their official duties.

Such support. is-justified on the theory that government employees must t

feel free to do their duty as they see it, without fear of personal financial consequences.. The private attorney is not discharging a similar public trust. :Moreover, even were Mr. Cherry to prevail on the merits, he would not be entitled to have his -expenses paid by NP,C.

payment in the. settlement context sho'uld not' stand on a different footing.

In light of these considerations, the Commission declines to approve paragrap'h 9 of the proposed. settlement.. We are aware. that the settle-l ment by'i.t own terms-may not be approved in part and rejected'in part.

We have presented this discussion of the payment issu'e for the under-

. standing of the Board and the parties. He ask the board to: explore with the parties the possibility of ' reaching an agreeable settlement without-proposed paragraph 9.

k Sincerely, N,

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-do'seph M. Hendrie b

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NUCt. EAR REG LATORY COMMISSION

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June 7, 1978 c l 191

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Il 7 \\J Qm Eon. Joseph M. Hendr.te 3h

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Chairman 6

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CQ*Q U.S. Nuclear Regulatory Cor ission Washington, D.C. 20555 b

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Subject:

- Matter of Consumers power Comp >.ny Utidland Plant, Units 1-and 2)

Special Proceeding Docket Nos. 50-3295P,50-330SP

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Dear Mr. Rendrie:

This follows up o.:r letter of March 21, 1978 and your reply of

. April 28, 1978.

There is no reasonable hope at the present time 'of settl'ing the

. special, proceeding on the basis simply of the proposal transmitted to I

you by our letter of March 21, 1978 with paragraph 9 thereto being excised.

The present status of the settlement effort, which included con-sideration of your letter of April 28,,1978, is reflected in the

" Motion of the Parties to Forward Repgrt of Further Settlenent Dis-cussions to the Cocmission,' dated Junk 1, 1978, with Attachment A thereto._ A copy'of.this Motion with its Attachment A is enclosed.-

Attachment A sets forth alternat.ive proposals of Mr. Cherry and the Saginaw Intervenors for settling the special proceeding.

If-the con-ditions stated in either of the proposals wculd come into being, a settleaent agreement by all of the parties would result.

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Should the commissian notify the special board that or the

- other proposal 'in Attachment A is acceptable, the special board anticipates maintaining the special proceeding in a state of suspense while awaiting the. sought-after Co=ptroller General's opinion.

Other-

' wise, if the cc M esion notifies the special board that neither of the two proposals in Attachment A is acceptable, the~ special board will prepare promptly its report to the Commission, as requested by.your.

-letter of January 30, 1978i "after the possibility of settlement has

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. been explored."

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. 7 Under the 'special board's order.-of May 23, 1978, at paragraph 4, for ' answers 'g report will. occasion the reinstatement of filing. dates the foregoin

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outst2.nding motions in the special proceeding, to ca. %.

.so that these motions, along with one other motion which has already

- been answ' red, -will be ready for decision in.a timely manner.

e Por the;information:and convenience of the Cocmission,' a copy of the special board's, order of May 23, 1978 is-also. forwarded' herewith; Sincer _y yours, b

Valentine B. Deale Chai_w Atomic Safety and Licensing Bi:>ard for,Special Proceeding Enclosures as stated-m 8

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. NUCLEAR REbilATORY COMMISSION

~ :BEFORE TEE SPECIAL ATOMIC SAFETY a:m LICINSING BOARD

-In the Matter of

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~ CONSUMERS POWER COMPANT

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Docket Nos. 50-329 SP

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50-330 SP

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(Midland Plant, Units 1 and 2)

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(Special. Proceeding)

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^ MOTION OF THE PARTIES TO FORWARD REPORT

-OF t utun.R' St 11LEMENT DISCUSSIONS TO THE COlDIISSION During the May 17, 1978 conference of attorneys in this proceeding,

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the Spe.cial.goard requested the parties to consider so=e alternative --

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ar,eproaches to settlement of the Special Proceeding.

On May 23, 1978, I

the,Special Board issued an Order referring.to certain alternatives w -

it wished the parties to explore further.. The parties have discussed j

thos'e proposals, among others, and have determined that' further i

settlement. discussions are not likely to be productive at this time.

(Attr.chment A) -

Consequently, the parties have agreed upon a stata=ent which descr1bes their present posture.

The parties agree that the language of the. statement vould be appropriate for the Board 'to use in reporting on the status 'of settlement discussions to the Corission.

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. Since the ne terms set forth therein can only be acted.upon by the a

Commission", the parties. believe-further' discussions between the Special

-Board and the parties are _ unnecessary and hereb'y move the Special Board to forward its report on furthe. settlement discussions to the Commission consistent with the attached statement.

Respectfully submitted, UA

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William J. O bstead Counsel.for the NRC Staff

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.8 Thomas F. Engelhardt Counsel for the NRC Staff g _,:.u!N/(= s.W-u*

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. Counsel for Saginaw Intervanors

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[- lA Counsel for Myron M. - Cherry

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Ms Counsel for Messrs. James -R. - Tourtellotte and Milton J. Grossman b

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In'-order to dir se fin. ally of this proceeding as preposed in Chairman Hendrie's lette.- to the Chairman of the Special Board of January 30, 1978, and in view of Chairman Hendrie's letter to Mr. Deale of April 28, 1978, Saginaw Intervenors and Mr. Cherry would be willing to terminate the proceedings on the terms stated in the Motion and Stipulation dated March 13,1978, with the ' deletion of paragraph 9, in the event that the Commission agrees to seek an opinion from the Comptroller General with' respect to the following question and the Comptroller General responds to that question in the negative:

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/l._f occ:m In connection with the termination and settlement of a special proceeding brought to investigate charges against a private attorney and NRC. Staff 3

DUN ' Ig7g) 7 attorneys, which termination and settlement results p *"%gT ws

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in a withdrawal and striking of all charges against

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.,al.1 s_uch attorneys, does the NRC have authority to G

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reimb'u'rse a maximum of $1,000 in actual out-of-pocket 6;m b expenses incurred on behalf of the private attorney in connection with such proceeding, when the NRC has paid all fees and expenses of the staff attcrneys in connection with such proceeding, and the NRC. believes that the withdrawal, settleme.nt.and termination of the proceeding is in the public interest?

Alternatively, Saginaw Intervenors and Mr. Cherry would be willing to terminate the proceeding on the terms stated in the Motion a'nd Stipulation

' dated March 13,.1978, with the deletion of paragraph 9, in the event that the following language is included as a substitute therefor:

9.

And that the Nuclear Regulatory Commission shall pay legal fees and actual out-of-pocket expenses incurred in the Special Proceeding by or on behalf of the Saginaw Intervenors for prosecuting the portions of the 1.icensing Board's charges relating to conduct

'of staff attorneys, unless the Commission receives a formal opinion from the Comptroller General to the effect.that it is not authorized to pay such fees and expenses under the circumstances presented.

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YThile'the other" parties are willing to settle without paragraph 9, should either of the above conditions sought by Mr. Cherry and Saginaw Intervenors. '-

ce=e into' existence a settlement agreement by all the parties would result.

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CERTIFICATE OF SERVICE e

, 'I ' certify that copies of the foregoing Motion of the Parties to Forward Report of Further Settlement Discussions to the Co:::nission have been served on all parties of record by first-class mail this 1st

' day of June, 1978..

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