ML20058A378

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Partially Withheld Affirmation Secy That Recommends Commission Approval of Encl Draft Order Referring J Leithauser Motion Requesting Correction of Allegedly Erroneous ASLAP Statement Back to ASLAP
ML20058A378
Person / Time
Site: Big Rock Point File:Consumers Energy icon.png
Issue date: 03/24/1981
From: Fitzgerald J
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
Shared Package
ML20058A382 List: ... further results
References
FOIA-92-436, TASK-AIA, TASK-SE ISSUANCES-OLA, SECY-81-191, NUDOCS 8104020230
Download: ML20058A378 (10)
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March 24, 1981 o,*

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SECY-81-191 ADJUDICATORY ISSUE (Affirmation)

For The Commissioners From:

James A. Fitzgerald Assistant General Counsel

Subject:

MOTION FOR OFFICIAL NOTICE OF INTERVENOR STATUS BY THE COMMISSION Discussion:

In a motion addressed to the Commission,

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John Leithauser requested that the Commission correct an allegedly erroneous statement by 'the Appeal Board concerning his status in the Big Rock Point spent fuel pool amendment proceeding. [F,or the reasons.below, we believe that Mr. Leithauser's original petition to intervene was denied by the Licensing Board in Janu,a.ry,.~1980, LBP-80-4,

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information in tYs inmd was deieled 53 ECCc;dar.cc vdh the Freedom of Inictmation

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The Commissioners 2

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~~ Accordingly, we recommend th at t

Recommendation:

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Attachments :

1. Draft Order
2. Leithauser Motion for Official Notice and Supporting Brief.

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Commissioners' ccaments or consent should be provided directly to the Office of the Secretary by c.c.b. Wednesday, April 8,1981.

d Commission Staff Office comments, if any, should be submitted to the Commissioners NLT April 15,1981, with an information copy to the Office of the Secretary.

If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat shculd be apprised of when comments may be expected t

This paper is tentctively scheduled for affirmation at an Open Meeting during the Week of April 20,1981.

Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.

DISTRIBUTION i

Commissioners Commission Staff Offices Exec Dir for Operations ASLBP ASLAP Secretariat P

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i usNQo UNITED SCLTE3 0F AMERICA 05 m,1 g jgg y NUCLEAR REGULATORY COMMISSION Before The Cermierion 6

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Docket No. 155-01A "'

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(Spent Fuel Fool Expansion)

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March 10, 1981 Motion and Supporting Brief for Official Notice bv the Commission Intervenor Leithauser hereby motions that the Commission take official notice of his status as an intervenor in regards to the Need-for-Power-Issue in the above natter.

In the above captioned proce' ding in which one issue e

is now before the Appeals Board, the A.S.1.A.B. issued an order on February 25, 1981 in which they support their position with two arguments.

On the second point, the status of Intervenor Leithauser, the Appeals Board is clearly in error.

On page 3 of that Order, the Appeals Board states that "the Licensing Board, however, did grant Mr. Leithauser leave to brief a N.E.P.A. issue the Board was to consider further...

Mr. Leithauser, therefore is not a party to this proceeding..."

The question of Intervenor leithauser's status was de-cided long ago.

Although the original petition to intervene was denied (due to Intervenor Leithauser's failure to submit at least one contention with reasonable specificity to spent-fuel licensing trior to the special tre-hearine conference. )

in.the Order following Special Pre-Hearing Conference (Jan.18, 1980) of the A.S.L.B.,

the Licen. sing Board ruled that "Mr.

leithauser, if he desires, nay also brief this question within

the time limit and submit, with his brief, a notien to recensider his ratitier te irtervene en this issue if the issue is admitted into the proceeding" (emphasis mine) (page 34).

Intervenor Leithauser did in fact respond to the Licensing Board's invitatien when the Need-for-Fower Issue (U.E.P.A. appli-cability) was before the Licensing Board, filing both a Motion to Intervene on the single issue and his Brief in support of consideraticn of the Need-for-Power Issue.

The Motion to Intervene (encaptioned " Motion to Be Heard on the Need-for-Power Issue") was granted and his brief accepted on March 19, 1980 when the licensing Board issued its "Crder Accepting Late-filed Briefs" which states in full:

"The motions of intervenor John O'Nelli, II and John Leithauser to file their briefs on the Need-for-Power Issue out of time are eranted.

The Briefs will be accepted and filed."

In the Motion the Board referred to Intervenor Leithauser phrased his Mction.'.'.. that his brief on the Need-for-Fower Issue be accepted and accorded the same status as others." (emphasis mine) (page '1). According to "Words and Phrases" Vol. 5A, West Public Co.

"...a brief is an abridged statement of the party's case - a summary of the points or questions in issue."(lamy v Lamy 12 P650,4N.M. (Johns) 43)

The Appeals Board itself has on at least three occasions recognized Mr. Leithauser's status as an intervenor on this issue.

On page 2 of its letter of September 12, 1980 inviting C. Foster Knight, Acting General Counsel of the Council on En-vironmental Quality, the opportunity of filing a brief amicus curiae, the Appeals Soard first refers to Mr. leithauser as a

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participant and later fails to note seme unique status for in-tervenor Leithauser in its final words of that letter.

(

Enclosures:

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cci All Parties)

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1 The Appeals Board over three months later ir. its order cf December 19, loSO states: "t'e have now received a brief from another intervener John A. Leithauser" (emphasis nine) (page 1)

This order was necessary to correct the Board's order of December 12, 1980 for the reasons it puts forth.

In its order dated December 31, 1980, the A.S.L. A.B. more frequently identifies John Leithauser as an intervenor.

The Crder begins: Intervenor John.Leithauser has moved..."

In foot note 1 on page 2 (in response to pro se intervenor John O'Neil's query of the Appeals Board as tb.the error found in its order dated December 12, 1980) the Appeals Board " directs Mr. O'Neils attention to our oder of December 19, 1980 with respect to the intervener status of Mr. Leithauser and the delayed receipt of his brief." (emphasis mine)

In paragraph 3 of the same page the Appeals Board states that "...eniv ene eeur.sel may argue on bejalf of all intervenors jointly (O'Neil, Leithauser and Christa-Maria et al)." (emphasis found in Boa'rd's Order)

As this was the last Order issuing from the Appeals Board prior to the Order in question this matter could not have been raised by intervenor Leithauser before the Appeals Board issued the Order of February 25, 1981 because in the earlier Orders, the Appeals Board had clearly recognized Mr. Leithauser's status as in intervenor.

(The later Order came in response to a request made to the Appeals Board by Intervenor Leithauser).

One can thus only speculate as to how the Appeals Board arrived ~at its second argument.

...There is a general provisbn that prompt

_4 n:: ice shall be given of the denial in wh:le er in part of any wri en applittiion, petition, er other request of En-J interested pers en made in connection with any agency proceeding." -5U.S.C.

3e:Tirr 10^5(d}.

As Intervenor Leithauser's petiti:n :: inter-vene war docheted :n :: arch 17, 1950, the A;;eals 5 card Crder of February 25, 1981, a full eleven months later can hardly be considered prompt notice.

It is necessary for the Commissicn to take official notice of this point of law in order to rectify this gross procedural errer en the part of the A.S.1.A.B. which if entered into the

'reccrd without correcticn would effectively deny Intervenor icith;;scr's right to protect both his liberty and preperty, where that right has already been recognized by the A.S.1.A.3.

It is also necessary to obviate delay and a multiplicity of actions Furthernere, "In administrative proceedings of a judicial cr quesi-judicial character, the liberty and pr:perty cf the citizen must.be protected by the rudimentary requirements of fair play." (F.C.C. v poetsville Broadcasting Co. 304 U.S.134)

Although seemingly unnecessary due to the clarity of the situation found in the record, in light of the Appeals Board Order, ti would perhaps be beneficial to note that "... great i

t liberality as to form and substance ic to be indulged especially t

where the applicant is unrepresented by Counsel." (Palle v Industrial Commission 7P2d 284. see also: Roberts v Knoxville '

r Transit lines 259 S.W. 2d 883)

I would merely state in passing that I am not an attorney i

nor an I represented by Counsel.

I live en our w. holly-owned 40 a:re far=.rith ry wife in levering, F.ichigan.

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i I hereby certify that copies of Mc ion and Supporting i

3rief for Official Notice by the Connission in the above-captioned proceeding have been served on the following by depciit in the U.S. Mail, first class on Idarch 14, 1981.

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A.S.I. 3.

Herbert Sennel I

U.S. E.R.C.

Antioch School of Law

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Eashington, D.C. 20555 2633 16th St., N.E.

Eashington, D.C. 20009

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N.R.C. Cennissioners

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'Eashington, D.C. 20055 U.S. N.R.C.

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John C'Neil, II

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Eashington, D.C. 20555 C. Foster Knight, C.E.Q.

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