ML20054C132
| ML20054C132 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/16/1982 |
| From: | Wilcove M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8204200101 | |
| Download: ML20054C132 (6) | |
Text
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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(RemandProceeding) t NRC STAFF RESPONSE TO SAGINAW VALLEY'S MOTION TO STRIKE THE BRIEF 0F 00W CHEMICAL COMPANY k
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Michael N. Wilcove Counsel for NRC Staff I
Dated: April 16, 1982 des 1CSATED QRIGINAIl
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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)
)
(Remand Proceeding)
NRC STAFF RESPONSE TO SAGINAW VALLEY'S MOTION TO STRIKE THE BRIEF 0F 00W CHEMICAL COMPANY l-Michael N. Wilcove Counsel for NRC Staff Dated: April 16, 1982 e
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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
)
Docket Nos. 50-329
)
50-330 (Midland Plant, Units 1 and 2)
)
(Remand Proceeding)
NRC STAFF RESPONSE TO SAGINAW VALLEY'S MOTION TO STRIKE THE BRIEF 0F DOW CHEMICAL COMPANY I.
INTRODUCTION On March 30, 1982, Saginaw Valley Nuclear Study Group (Saginaw Valley) moved to strike the brief filed by Dow Chemical Company (Dow) in response to the Saginaw Valley brief in support of exceptions to the LicensingBoard'sPartialInitialDecision.3/
For reasons which follow, the NRC Staff opposes Saginaw Valley's motion.
II. BACKGROUND On December 22, 1981, the presiding Atomic Safety and Licensing Board in its Partial Initial Decision determined, notwithstanding its findings with respect to the conduct of certain parties in connection with the presentation of direct testimony, that sanctions were neither necessary nor appropriate.
Saginaw Valley filed on January 17, 1982, exceptions to the Partial Initial Decision and its supporting brief on l
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Motion to Strike the Brief of Dow Chemical Company Filed In This Cause Under Date Of March 22, 1982 (hereafter " Motion").
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February 22, 1982. Dow, on March 22, 1982, filed a brief in opposition to Saginaw Valley's brief. Thereafter, Saginaw Valley's motion to strike Dow's brief was filed on March 30, 1982.
III. DISCUSSION A.
Saginaw Valley argues that Dow may not challenge the findings of the Licensing Board on the grounds that those findings were not challenged by Saginaw Valley, the only party which filed exceptions in this proceeding.2/
Saginaw Valley's argunent is without nerit. As clearly stated in Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 789 (1979);
It is correct that parties 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.
See also, Consumers Power Company (Midland Plant, Units 1 and 2),
ALAC-282, 2 NRC 9, 10 fn.1 (1975); Niagara Mohawk Power Corporation (Nine Mile Point, Unit 2), ALAB-264, 1 NRC 347, 357 (1975).
The Licensing Board in this proceeding declined to impose sanctions against the parties. Dow, therefore, was presumably satisfied with the result of that decision. Now that Saginaw Valley has appealed the Licensing Beard's determination not to impose sanctions, Dow is free to defend that determination on any grounds including those rejected by the Licensing Board.
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Id. at 1.
B.
Saginaw Valley goes on to challenge the assertion, stated by Dow in its brief, that Saginaw Valley's lack of participation in this proceeding prevents it from taking exception to the Partial Initial Decision.
(Motionat3.) Saginaw Valley suggests that since it is precluded by 10 CFR 6 2.762 from responding on this matter, Dow should have toised it by motion in order to afford it such an opportunity. (Id.)
To the extent that Saginaw Valley perceives the need to file such a response and believes that it can establish good cause therefor, it certainly has the right to seek leave of the Appeal Board to do so.
Beyond that, Saginaw Valley's motion states but an unparticularized conclusion respecting the merit of Dow's argument that Saginaw Valley may not appeal. Accordingly, it provides no support for the notion to strike Dow's brief and should be rejected.
IV. CONCLUSION For the foregoing reasons, the Staff opposes Saginaw Valley's Motion to Strike the Brief of Dow Chemical Company Filed In This Cause Under Date Of March 22, 1982, and urges that the motion be denied.
Respectfully submitted,
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l Michael N. Wilcove i
Counsel for NRC Staff l
Dated at Bethesda, Maryland this 16th day of April,1982 i
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0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COmilSSION 1
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD o
In the Matter of ll hl Docket No3. 50-329 CONSUMERS POWER COMPANY h
50-330 (Midland Plant, Units 1 and 2)
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(RemandProceeding)
CERTIFICATE OF SERVICE I nereby certify that copies of "NRC STAFF RESPONSE TO SAGINAW VALLEY'S MOTION TO STRIKE THE BRIEF 0F DOW CHEli! CAL COMPAl;Y" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 16th day of April,1982:
- Christine N. Kohl, Chairman Dr. J. Venn Leeds, Jr.
Atomic Safety and Licensing Appeal Administrative Judge Board Panel Atomic Safety and Licensing Board o
U.S. Nuclear Regulatory Comission 10807 Atwell Washington, D.C.
20555 Houston, Texas 77096
- Dr. W. Reed Johnson
- Dr. Emmeth A. Luebke Atomic Safety and Licensing Appeal Administrative Judge Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555
- Gary J. Edles Judd L. Bacon, Esq.
Atomic Safety and Licensing Appeal Legal Department Board Panel Consumers Power Company U.S. Nuclear Regulatory Comission 212 West Michigan Avenue Washington, D.C.
20555 Jackson, Michigan 49201 l
- Marshall E. Miller, Esq.
Harold F. Reis, Esq.
Administrative Judge Robert Lowenstein, Esq.
Atomic Safety and Licensing Board Lowenstein, Newman, Reis and U.S. Nuclear Regulatory Commission Axelrad Washington, D.C.
20555 1025 Connecticut Avenue Washington, D.C.
20036 l
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, 1; Ms. Mary Sinclair Gerald Charnoff, Esq.
5711 Sunnerset Street Shaw, Pittman, Potts & Trowbridge Midland, Michigan 48640 1800 M Street, N.W.
Washington, D.C.
20036 Michael I. Miller Ronald G. Zamirin, Esq.
William C. Potter, Jr.
Martha E. Gibbs, Esq.
Fischer, Franklin, Ford, Simon Caryl A. Bartelman, Esq.
and Hogg Isham, Lincoln & Beale 1700 Guardian Building One First National Plaza Detroit, Michigan 48226 42nd Floor Chicago, Illinois 60603
- Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Myron M. Cherry Washington, D.C.
20555 Cherry & Flynn Suite 3700
- Atomic Safety & Licensing Appeal Three First National Plaza Board Chicago, Illinois 60602 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 T. J. Cresswell, Esq.
Michigan Division
- Docketing & Service Section Legal Department Office of the Secretary Dow Chemical Company U.S. Nuclear Regulatory Commission Midland, Michigan 48640 Washington, D.C.
20555 Barton Z. Cowan, Esq.
Chairman AIF Lawyers Committee 42nd Floor, 600 Grant Street Pittsburgh, Pennsylvania 15219 w k \\ h M. k.s i
Michael N. Wilcove Counsel for NRC Staff
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