ML20054C659
| ML20054C659 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/15/1982 |
| From: | Cresswell T, Potter W DOW CHEMICAL CO., FISCHER, FRANKLIN, FORD, SIMON & HOGG |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20054C660 | List: |
| References | |
| ISSUANCES-CP, NUDOCS 8204210471 | |
| Download: ML20054C659 (6) | |
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION V
ATOMIC SAFETY AND LICENSINd APPEAL BOARD j
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o MOTION OF THE DOW CHEMICAL COMPANY FOR RECONSIDERATION OF APPEAL BOARD ORDER DATED APRIL 13, 1982 DENYING LEAVE TO FILE REPLY BRIEF THE DON CHEMICAL COMPANY moves this Appeal Board for re-censideration of its Order dated April 13, 1982 in :hich the Board denied Dow leave to file a brief in reply to a Brief filed herein by Consumers Power Company.
In support of said Motion, Ocw says:
1.
This is an appeal by Intervenor Saginaw valley Nuclear Study Group frcm a decision of an Atomic Safety and Licensing Beard datea December 22, 1981.
Intervenor Saginaw 'Jalley ::uclear Study Group filed its "Brief In Support Of Exceptiens To Partial D5o3 J
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Initial Decision Dated December 22, 1981" with this Board on February 22, 1982.
2.
On or about March 22, 1982, Dcw filed its Brief in reply to the Brief of Intervenor Saginaw Valley Nuclear Study Group.
3.
On or about April 5, 1982, Consumers Power Company filed its Brief in reply to the Brief of Intervenor Saginaw Valley Nuclear Study Group.
In that Brief, Consumers took exception to certain findings of fact made by the Licensing Board and continued a line of argument first raised before the Licensing Board: that any problems chich surfaced during the 1976 hearings were caused by condue: of The Dow Chemical Company and its counsel and not by any conduct of Consumers Pcwer Company and its counsel.
4.
On April 9, 1982, Dow filed a Motion with this Board for an extension of time within which to file a brief in reply to the Consumers power Company Brief.
5.
On April 13, 1982, this Board entered an order in which it treated Dow's Motion for extension of time as a i'
L motion for leave to file a reply brief to the Consumers' srie'f.
This Board went on to deny Dow's Motion on the ground that Dow was aligned on the same side of the case as Consumers and therefore could not reply to arguments contained in Consumers' Brief.
i 6.
Dow acknowledges that in the usual case before this Board, parties on the same side should not be permitted to argue against each other.
However, Dow submits that the issues in-vclved before the Licensing Board in this matter and which are ncw coming before this Board are unique and recuire different treatment than the Appeal Board would normally be inclined to provide.
Specifically, Dow asks this Appeal Board to review the Brief filed by Consumers below as well as the Erief filed with thit Board.
Both Briefs argue at length that Dow and its ccunsel engaged in improper activity during the preparation of testimony for the 1976 hearings.
This charge is emphatically denied by Dow.
On this issue, it is very clear that Dow and Ccnsumers are not on the "same side" and do not have "essenti-ally the same interest in the ultimate outccme of the case."
l (Appeal Board Order of April 13, 1982, pp.
1, 2)
In fact, their l
i pcints of view are diametrically opposed.
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7.
The Board's Order dated April 13, 1982, states in part as follcws:
"Here, Dow has failed to provide sufficient cause for departing from the traditional l
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i scheme of briefing.
Further, its concern with Consumers' treatment of certain factual matters is not well-founded:
we are satis-fied that we will be able to " discern fact from fiction upon our review of the record and authorized briefs -- without additional briefing as Dow proposes." (emphasis supplied)
The difficulty with this conclusion of the Appeal Board is that no party presently before it on appeal has dealt in their Brief with this difference of opinion between Dow and Consumers concern-ing how the 1976 testimony was prepared.
Only Consumers has discussed this matter and it has continued its argument that Dow has engaged in improper conduct.
Unless this Board permits Dow to file a reply brief, these charges will go unanswered and Dow will clearly be denied a fair and impartial hearing before the Appeal Board upon its revie.- of the Licensing Board Decision.
8.
Dow cannot help but n;te the anomalous result of the Board's April 13, 1982 Order.
The decision of the Licensing Board below dated December 22, 1981, which is now before this Board for review, strongly criticized Consumers, Dow and their respective counsel for failing to bring to the Licensing Board's attention matters indicating areas of disagreement and differences of opinion between Dow and Consumers.
Now, when Dow is trying to bring to this Board's attention areas of disagreement between itself and Censumers, concerning testi-many preparation for the 1976 hearings, it is told that this
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Board has no wish to hear Dow but rather the Board will decide tu important issues which affect Dow in view of Consumers allegations upon our review of the record and authorized briefs --
1.
without add.itional briefing as Dow proposes."
Dow is left to wonder what this Commission and its subsidiary boards want to hear from Dow and when regarding this matter.
Moreover, this Appeal Board in an Order dated April 8, 1982, has granted a nonparticipant in the hearings below, The Lawyers Committee Steering Group of the Atomic Industrial Forum,F Inc., leave to file a brief in this matter and has also granted -
another nonparticipant in the proceedings belo'.-
(Saginaw Valley -
Nucear Study Group) leave to file a reply brief.
Thus, the Board has permitted two "nonparticipants" permission to file briefs in" this matter and has at the same time denied a participant (Dow) the right to respond to serious charges made against it in a Brief by another participant (Consumers).
Dcw submits that the Appeal:
Board's Orders of April 8, 1982 and Apri_ 13, 1982 are incon-sistent.
9.
In its Order dated April 8, 1952, the Board stated t
as follows:
"Because this proceeding involcos important issues relating to the integriti of the hearing process and the standards for at-torney conduct generally, we intend to review the entire Board Decision sua sponte Dow cannot understand how this Appeal Board can proceed to" con-duct such hearing and at the same time deny Dow the. right to respond to charges made by Consumers Power Company in its Brief before this Board regarding the conduct of Dow's counsel in preparation for the 1976 hearings.
Due process alone requires that Dow be given the right to respond to Consumers' allegations in writing through a reply brief.
WHEREFORE, THE DOW CHEMICAL COMPANY prays that the Board reconsider its Order of April 13, 1982 and thereafter grant the Motion of The Dow Chemical Company to file a reply to the Brief of Consumers Power Ccmpany in substantially the form attached hereto.
DATED: April f;',
1982 Respectfully submitted, T.
J.
Cresswell, Esq.
Division Counsel Michigan Division The Dow Chemical Company 47 Building Midland, Michigan 48640 (517) 636-4781 Fischer, Franklin, Ford, Simon
& Hogg
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By:
s William C.
Potter, Jr.
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1700 Guardian Building
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Detroit, Michigan 48226
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(313) 962-5210
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Attorneys representing j
The Dow Chemical Company
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