ML19344A094
| ML19344A094 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/28/1978 |
| From: | Hendrie J NRC COMMISSION (OCM) |
| To: | Deale V DEALE, V.B. |
| References | |
| NUDOCS 8007310602 | |
| Download: ML19344A094 (4) | |
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SUCLE AR REGUL ATORY COMMIS,. sN
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20 Valentine B. Deale, Esq.
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20036
Dear tir. Deale:
' T The r.,:rmission has considere? the proposal for settlement of the Midland special proceeding incorporated in the "liotion and Stipulation" dated March 13, 1978, which you transmitted to us by letter of March 21,1978.
In essence all of 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 matter.
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 charges and termination of the proceedings will be published and also sent to all parties with whom there had been cor-respo.,dence about the proceedings.
These features of the proposed settlement seem to us to be straightforvard and worthy of Commission approval.
We 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 --
9.
that Myron M. Cherry enters into this stipulation on the further condition that the i uclear P,egulatory Co;:unission shall pay actual out-of-pocket expenses not in excess of. $1,000 incurred by or on behalf of Myron M. Cherry in connection with the Special Proceedin-).
lin agency of the government is not as free as e private party to deal in a settle:nent.
There is a serious question wh&ther the Cc:: :ission has the leg'al authority in these ci.rce::: stances to r:ake a pay:ent such as !4r. Cherry requires.
Were the Comission disposed, on policy g ounds, to make this payment, the question of its authority to do 2x_
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- Valdntihe;B.'
- Deale; Esq(
2-April 28,1978
- so Moul'd first have to be resolved in'the affirmative by the Comptroller We need not,- however, seekLaf forac1 ruling of the Comptroller
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because we;believe that(the proposal for payment 'is unsound ony policy
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-i;ormally priv' ate; attorneys" participating in our proceedings, whether-E=k
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. they represent intervenors, utilities, or others,. pay their own' expenses.. lit seemsito us that the usual practice.should obtain in ef.M
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.We have: considered theLfact that the involved st!aff attorneis-will be-able'.to walklaway without expense an'd--the possible argument that, b
'therefore, so tshould 14r.. Cherry. - Such an argument seems flawed.
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analogy, between private practioners and government lawyers in-this
- situation.is imprecise. - Government employees ~are entitled to repre--
fU sentation by counsel and payment of associated expenses when they are;
,c4 charged with misconduct in the performance of their official duties.
Such support is l justified on the theory that government employees must-
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feelf free to do their duty as they see it,-without fear of personal
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financial. consequences. The. private: attorney is not discharging a
.similar public trust.
14creover,4even were 14r. Cherry to prevail on the merits,.he would not-be entitled to have his expenses paid by l'RC.
. Payment in the. settlement context should: not stand on a different~.
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- V In light' of these considerations, the' Commission declines to approve.
- paragraph 2 9;of J the proposed. settlement.
He are aware that the settle-ment.by itiown terms may not be approved in part and rejected in part.
- i We have. presented <this discussion of the payment issue for the under-
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standing of the Board and the parties. He ask the board' to explore with the parties;the possibility of. reaching an agreeable settlement
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without-proposed; paragraph 9.
z.y h Sincerely, i
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UNITED STATES OF A:tERICA NUCt. EAR. REGUT.ATORY ' CO:E!ISS ION I
lin the' Matter'of
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CONSUMERS POWER COMPANY'
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. Docket.No.(s) 50-3295 7
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50-330s/
(Midland Plant,. Unit Nos;;l and 2)
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CERTIFICATE OF SERVICE L
I hereby certify.that I have this day served the foregoing docu.ent(s) upon each person designated on the official service list co= piled by.
the Of fice -of the Secretary of the Commission in this. proceeding in
.accordance with the requirements of Section 2.712'of 10 CFR Part 2 -
Rules of-Practice, of the Nuclear Regulatory Commission's' Rules and
' Regulations.
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' Dated'.t' Washington p [C.
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this
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lu%LG OTiicc/ df/the Secretary of the -Corpission l
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. UNITED STATES OF ANERICA E c NUCLEAR' REGULATORY COMMISSION In'the Matter of'
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CONSUMERS POWER COMPANY
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Docket-No.(s)50-329SP
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'(Midland Plant,: Units 1 and 2)-
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SERVICE LIST 4
-Valentine B. Deale, Esq.
Harold F. Reis,~Esq.
1001 Connecticut Avenue, N.W.
.Lowenstein, Newman, Reis & Axelrad' Washington, D.C.
20036
'1025 Connecticut Avenue, N.W.
Washington, D.C.
20036:
Margaret M. Laurence, Esq.
5007. King Richard Drive
.Judd L. Bacon, Esq.
Annandale, Virginia. 22003 Consumers Power Company 212 West Michigan Avenue
-Gary L. Milho111n, Esq.
Jackson, Michigan. 49201 1 i 1815 Jefferson Street Madison, Wisconsin 53711 Joseph Gallo, Esq.
Isham, Lincoln & Beale William J. : Olmstead, Esq.
'1050 - 17th Street, N.W..-Suite 701'
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Thomas F. Engelhardt,. Esq.
Washington, D.C.
20036 Counsels-for NRC Staff 1U.S. Nuclear Regulatory Commission Michael'I. Miller, Esq.
Washington, D.C.
20555 Caryl A. Bartelman, Esq.
Isham', Lincoln-&.Beale
- T.S.L. Perlman, Esq.
One First'. National Bank Plaza 1776 "F" Street, N.W.
Chicago', -Illinois - 60603 Washington,.D.C. '20006 Grace Dow Memorial Library; Myron M. Cherry, Esq.
1710 West St. Andrew Road lOne IBM Plaza.
Midland, Michigan ~ 48640 Chicago, Illinois 60611
-Milt'on V. Freeman,;Esq.
Rosalind. C. Cohen, Esq.
Arnold;and Porter.
'1229 n19th Street,tN.W.
Washington,'D.C.
20036'
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