ML20050B936
| ML20050B936 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 03/30/1982 |
| From: | Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, INTERVENORS OTHER THAN DOW |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-CP, NUDOCS 8204070578 | |
| Download: ML20050B936 (5) | |
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-,m UNITED STATI:S OF AF'ZRIC A NUCLEAR REGULATORY COMMISSION.g [g _j p 1 :))
ATOMIC SAFETY AND LICENSING APPEAL DOARD
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In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos.
50-329 CP
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9 50s CP (Midland Plant,
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MOTION TO STRIKE THE BRIEF O p
DOW CHEMICAL COMPANY FILED IN T I6>
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The Saginaw Nuclear Study Group (hereafter "Saginaw"), by its attorneys, hereby moves that the Atomic Safety and Licensing Appeal Board strike the "Brief Of Do.w Chemical Company In Reply To Brief Of Intervenor Saginaw Valley Nuclear Study Group" filed in this proceeding under date of March 22, 1982 and in support thereof states as follows:
1.
The exceptions filed in this cause on behalf of the Saginaw Nuclear Study Group did not challenge any of the Licensing Board's findings of f act concerning the withholding of material evidence below.
Rather, all of the exceptions dealt with the overall issue as to whether, given the findings of fact which the Licensing Board had made in this cause, the Board's legal conclusions and its failure to impbse sanctions were appropriate. Br. In Support Of Exceptions at p.1.
2.
Pursuant to 10 C.F.R. Sec. 2.762(b), Dow was obligated to file' a brief "in opposition to" Saginaw's exceptions.
Dow has not done so, but rather has undertaken to attack the Licensing Board's findings.
That is improper, because:
(a)
I Saginaw accepted those findings, and (b) Dow has filed no exceptions of its own.
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a Thus, for example, at p. 22 of the Dow Brief, Dow claims that there is no basis for "Intervenor's assertion" that the Dow testimony was not open or honest or that Dow did not suppress any material evidence.
But those " assertions" are not Int ervenor's. Rather, they are findings of fact made by the Licensing Board which the Saginaw Group accepted for purposes of this appeal. In addition, at page 19 of its Brief Dow addresses "the question whether any material evidence was withheld from the Board during the suspension hearing."
But that is not an open question, so far as Dow is concerned. The Board affirmativelv found that material evidence was withheld; and Dow filed no exceptions to that finding.
3.
Dow, therefore, has in effect filed a brief in support of Dow exceptions which Dow never made, although it had full opportunity to do so.
Accordingly, Dow's brief is also improper because it violates 10 C.F.R. Sec. 2.762(a) in that Dow did not timely file exceptions to the Licensing Board's findings.
Dow mdy not at this juncture nevertheless disagree with or attack the Licensing Board's findings of fact.
That course is open to no_ one in this cause, since Saginaw did not except to those findings, and no other exceptions were filed.1 4.
The filing of a brief such as Dow's, unrelated to the issues, works a real prejudice both to (a) Saginaw (because it masks the real issues we raised herein), and (b) the Appeal Board (bec':use the important legal issues here are not fully briefed by all parties).
1.
Giv'en Dow's Brief, and a parallel indication from Consumer's counsel, Gerald C.
Charnoff, Esq. (see letter attached hereto as Exhibit A), it appears that the respondents below, knowing full well that given the Licensing Board's findings the failure to issue sanctions is insupportable, are now attrmpting to take issue with the Licensing Board's findings in the guise of opposing our exceptions.
We think that tactic neither appropriate nor permissible, and we respectfully urge the Appeal Board to reach this issue at an early date.
If the Appeal Board agrees with us, i
then we respectfully request that the Appeal Board promptly make clear that briefs filed by Dow or Consumers in support of " exceptions" not taken will not be' permitted.
9 5.
The remainder of Dow's skimpy position is that Saginaw may take no exceptions whatsoever. While we believe that this position has no merit (see, e_.g.,
Opinion of the Licensing Board below, LBP-81-63,14 NRC (December 23, 1981),
Slip Op. at p. 33 n. 70 and p. 38 n. 86) and that Dow is barred from even taking this position, (see, e.g., Order of the Appeal Board herein January 18,1982, p. I 1 1 and p. 2. n. 2.), in any event, because 10 C.F.R. Sec. 2.762 provides no opportunity for Saginaw to file a reply to Dow's brief, Dow's attack on Saginaw's right to file exceptions ought properly, if at all, to be raised by motion giving Saginaw an opportunity to respond.
6.
Accordingly, Dow's Brief is impermissible because (a) it seeks to raise by way of an opposition brief points in support of exceptions which Dow never made, and (b) it seeks to challenge, improperly and out of time, the right of the Saginaw Group to raise the important legal issues which are now before the Appeal Board.
For all of these reasons, Dow's Brief, we respectfully urge, must be stricken. See 10 C.F.R. Sec. 2.762(e).
Respectfully submitted, SAGINAW VALLEY NUCLEAR STUDY GROUP, One of the Intervenors other than Dow i
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i One of Its Attorneys "
Myron /M. Cherry, p.e.
Peter Flynn, p.e.
CIIERRY & FLYNN Three First National Plaza Suite 3700 Chicago, Blinois 60602 (312) 37 2-210 0 l
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- March 19, 1982 Gerald Charnoff, Esq.
Shaw, Pittman, Potts & Trcrobridge 1800 M Street, N.W.
Washington, D. C.
20036 Re:
In the Matter of Constrners Power 02npany (Midland Plant, Units 1 and 2)
Dear Csrry:
I confirm my agreement given to you on the phone a few days ago tMt we have no objection in tM Midland proceeding to an additional week for your responsive brief.
I was scmewhat banused, irrever, by your suggestion to me, notwithstanding the fact that Constners took no exceptions frcm the Licensing Board's opinion (and undoubtedly carefully considered that option since an extension of time for that specific purpose was sought ard granted), that you might attenpt to reargue the underlying transcripts.
I do not believe such a tactic is pennissible a.-d would hope you would moet tM legal issues squarely.
If your brief is in support of exceptions never taken, I will of course nove to strike that document.
I also confirm my willingness to discuss with yea, perhaps in the nature of advice to the Appeal Board, v. hat. kind of a sanction would be appropriate for consumers under the circumstances.
Kind regards for a happy Passover.
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q Sincerlcly W
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I Myron M. ch L'
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PROOP OF SERVICE I certify that a copy of the foregoing Motion to Strike was served upon e sunsel for Consumers Power Company, Dow Chemical Company, the Regulatory Staff and the Secretary of the Nuclear Regulatory Commission (docketing) by malling a copy of same, postage prepaid and properly addressed, on March 30, 1982.
On the same date an original and three copies of the foregoing Motion were served upon the Secretary of the Appeal Board by postage prepaid and properly addressed mail.
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