ML20050N848
| ML20050N848 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/09/1982 |
| From: | Bauser D CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8204140434 | |
| Download: ML20050N848 (5) | |
Text
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April 9, 1982 y
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 7
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In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329
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50-3 (Remand Pr c'eeding);(f{,p (Midland Plant, Units 1 and 2)
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s CONSUMERS POWER'S ANSWER TO MOTIO '
OF SAGINAW VALLEY NUCLEAR STUDY 9
GROUP TO STRIKE THE BRIEF OF DOW N
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CHEMICAL COMPANY FILED MARCH 22, 1987 1"
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By motion dated March 30, 1982, Saginaw Nu udy Group ("Intervenor") moves to strike the brief of Dow Chemical Company submitted on March 22, 1982 in response to the brief and supporting exceptions taken by Intervenor.
Consumers Power Company opposes Intervenor's motion.
Intervenor asserts two grounds for its request that the Appeal Board strike Dow's brief.
First, Intervenor main-tains that Dow improperly challenged some of the findings of the Licensing Board below.
Second, Intervenor disputes Dow's assertion that Intervenor defaulted below, and there-fore waived its right to take exception to the Licensing Board's partial initial decision (PID) of December 23, 1981.
Doth of Intervenor's arguments are faulty.
Contrary to the assertions of Intervenor, it is 3
firmly established that in N.R.C. proceedings, a party who
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has not been adversely affected by the outcome of a decision
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8204140434 820409
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g may, nevertheless, except from findings of the licensing board once the decision has been otherwise appealed.
Thus, the Appeal Board in Black Fox stated:
It is correct that pa.rties satisfied with the result on an issue may not themselves appeal.
But if the other side appeals they are free to defend a result in their favor on any ground presented in the record, including one rejected below.
Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 N.R.C.
775, 789 (1979).
See also consumers Power Company (Midland Plant, Units 1 and 2), ALAB-282, 2 N.R.C.
9, 10 (1975).
Intervenor next takes issue with Dow's assertion that Intervenor is in default and, consequently, cannot take exception to the PID.
In support of this argument, Intervenor references two footnotes in the PID (notes 70 and 86), and the Appeal Board's Order denying an extension of time to the "Mapleton Intervenors." See Appeal Board Order of January 18, 1982. Inter-venor appears to infer from.these citations that the Licensing Board and the Appeal Board have recognized Intervenor's continuing party status irrespective of Intervenor's defaults below.
This argument is specious.
None of the citations to which Intervenor refers addresses in any fashion Intervenor's double default; rather, they Are references to Intervenor's sporadic participation in the instant proceedihg.
In this case, Intervenor not only f
failed to participate in the remand proceeding or to file i
a
g a brief or proposed findings at the conclusion of the evidentiary hearing, but again failed to file proposed findings when given a second opportunity to do so by the Licensing Board.
See PID, slip op. at 9-10.
Consistent with the N.R.C.'s Rules of Practice, 10 C.F.R.
S 2.754 (b), the Appeal Board may find Intervenor in default and, accordingly, deny Intervenor's exceptions to the PID.
- See, e.g.,
Florida Power & Light Co. (St. Lucie Nuclear, Power Plant, Unit No. 2), ALAB-280, 2 N.R.C.
3, 4 at n.2 (1975);
Northern States Power Co. (Prairie Island Nuclear Generating Plant, ' Units 1 and 2), ALAB-244, 8 A.E.C. 857, 864 (1974).-*/
In summary, Consumers Power believes that Dow was entitled to take exception to the Board's findings of fact once Intervenor had appealed the PID, and that Dow's asser-tion that Intervenor waived its right to appeal is correct.
Consumers therefore urges the Appeal Board to deny Inter-venor's Motion to Strike the Brief of Dow Chemical Company.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE b
b.
Deborah B. Bauser Counsel for Consumers Power Company 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1215 c
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Intervenor also states that it ought to have the opportunity to respond to Dow's assertion that Intervenor waived its right to take exception to the PID.
Without regard to the merits of this argument, Intervenor's Motion to Strike is such a rejoinder; yet Intervenor noteably fails to explain in any way its double default below.
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7 April 9, 1982 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329
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50.-330 (Midland Plant, Units 1 and 2)
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(Remand Proceeding)
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CERTIFICATE OF SERVICE I hereby certify that copies of " Consumers Power's Answer to Motion of Saginaw Valley Nuclear Study Group to Strike the Brief of Dow Chemical Company Filed March 22, 1982" were served this 9th day of April, 1982, by U.S. mail, first class, postage prepaid, upon the following:
Christine N. Kohl, Esq., Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Gary J. Edles, Esq.
Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. W. Reed Johnson Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 William C. Potter, Jr., Esq.
Fischer, Franklin, Ford, Simon & Hogg l
1700 Guardian Building I
Detroit, Michigan 48226 i
k
R. L. Davis, Esq.
Michigan Division Legal Dept.
Dow Chemical Midland, Michigan 48640 William J. Olmstead, Esq.
William D. Paton, Esq. -
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Myron M. Cherry, Esq.
One IBM Plaza, Suite 4501 Chicago, Illinois 60611 b & k. f$ "^ h Deborah B.
Bauser e
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