ML19331A788

Motion to Suppl Saginaw Intervenors' 730115 Exceptions to Initial Decision W/Missing Exception Pages,Distribution of Murphy First Draft & Administrative Conference 720420 & 730115 Ltrs to AEC

ML19331A788
Person / Time
Site:	Midland
Issue date:	01/18/1973
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, Saginaw Intervenor
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML19331A789	List: ML19331A788
References
NUDOCS 8007230819
Download: ML19331A788 (12)

Text

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EEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD' In the Matter of ) y

) Docket Nos. 50-329

)50-33J CONSUMERS POWER COMPANY

)

Midland Plant, Units 1 and 2 )

MOTION AND -

SUPPLEMENT TO SAGINAW VALLEY, -

et al., INTERVENOR'S STATEMENT ~

OF EXCEPTIONS TO THE INITIAL DECISION FILED ON JANUARY 15 ,

1973 _ _

Intervenors hereby request the Appeal Board.to . .

accept instanter this Supplement to Intervenor's Statement of Exceptions filed on January 15, 1973. Good cause exists for granting of this Motion and is set forth in the sections below:

I. On Wednesday, January 17, 1973, Intervenor's 1

counsel received advice that some copies of our January 15,

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1973 statement of Exceptions did not contain a page 41, l while others did not contain a page 62. Portions of this material were read over the telephone to Applicant's counsel on January 17, 1973. The failure to include these two pages was a failur..

in colating our statement of Exceptions.

Accordingly we request the Appeal Board to receive the attached page 41 and page 62 which should be inserted in the

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Statement of Exceptions in those copies where one or the

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other of these pages was missing.

II. In our Exceptions, and particularly Except -~

II.F, Intervonors argued that the failure of the Regulatory Staff to have advised the Licensing Board and the Interver.ars on matters of nuclear safety during the pendency of the hearing is reversible error not only because the Regulatory Staff breached a duty to the Licensing Board but also becaase the failure of the Regulatory Staff in advising Intervenors ,_

prevented them from making timely motions to reopen the -

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record or bring such matters to the attention of the Licensing Board. On January 17, 1973, Intervenors' counsel received a letter from the Regulatory Staff counsel affi~rming the fact -

that the Regulatory Staff had breached its. obligationin nc t making the documents available to Intervenors' counsel and that the failure was " simply administrative error. " This letter of the Regulatory Staff counsel dated January 11, 1973, contained an Appendix A listing certain letters of which

--1/ As indicated, the substance of page 62 was communicated to Applicant's counsel by telephone on January 17, 1973.

Counsel for Dow Chemical Company reported that its copy did not contain page 41. The substance of page 41 was read over the telephone to counsel for Dow Chemical Company on January 18, 1973.

( l n. l uill n. I hel r nubstance) Intervonora and the f.icenning

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lu.a s il wo ro not made aware.

Since this information supports our Exception to II.F, we are herewith transmitting it to the Appeal Boant .v additional supporting argument. This information was not available to us until January 17, 1973, and thus could n.t 2/

have been made part of our January 15, 1973 submission.

III. In our Exception VI.B of our statement of Exceptic filed on January 15, 1973, we took issue with the bias o. the Licensing Board. We called attention to the fact that on . . _

January 7, 1973, we had filed such a motion with the Licens: -

Board and because the motion had not been decided by the time _

of the filing of our Exceptions, we would treat the motion as -

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having been denied for purposes of appeal.

We have just received additional information (this morning, January 18, 1973) which supports our Exception VI.B dealing with bias.

The Affidavit accomp'anying our motion of January 7, 1973 indicated that Intervenors' counsel had been aware

_2/ Ths Appeal Board will note that enclosure #2 on Appendir A requests Consumers Power Company to monitor the filings in the local Public Document Room in Midland, Michigan.

l Accordingly, Consumers is on at least constructive notice that the letters listed on Appendix A were never sent to Intervenors, inasmuch as if Consumers is charged with monitoring the local Public Document Room, they are aware that the letters on Appendix A do not show copies to the Licensing Board or the Intervenors. Accordingly, the breach of obligation to be open with the Licensing Board and the Intervenors not only is a breach of obligation by i

the Regulatory Staf f but also by Consumers Power Company.

i of t he draf t vorsion of Chairman Murphy's art.iclo anmo timo in the e.ummer of 1972 but had not addressed himself t o the i:::iuen therein because of his duties in connection with '%

i rulemaking hearingr. in Washingt.on, D. C.

L'uring t he ny t s n.:

and summer of 1972 Intervenors' ccunsel was spending full time in Washington, D. C. and thus was away from his offic2 in Chicago.

Attached hereto is a letter of January 15, 1973 f rc the Administrative. Conference to Intervenors' counsel to whic; is attached an April 20, 1972 letter and a statement of -

distribution of the Murphy article. We believe these documents further support our Exception of VI.B_and are asking the Appeal Board to receive them, good cause having been shcwn _.

since these documents just became available to us this morning.

These documents reflect that Chairman Schlesinger received a copy of the article, that the Director of Regulation received a copy of the article, as well as other employees of the Atomic Energy Commission, including but not limtied to staff counsel who is trying the matter. We have no way of knowing whether Chairman Schlesinger, Mr. Muntzing or Mr. Kartalia ever made responses to the substance of the Murphy article as was requested of such people by Roger C. Cramton.~ t is now clear, however, not only does the Murphy article represent bias but that its broad distribution by Roger C. Cramton on behalf of Murphy and t

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Conference represents a violation of the Commission's ex parte

_3/ The Appeal Board should inquire what Chairman Schlesinger or Director Muntzing did in response to Mr. Cramton's letter since the letter by Cramton was the beginning of an ex, parte communication.

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s rules in that Mr. Cramton, acting on behalf of Chairman Murphy, a member of the Licensing Board,has communicated and solicited the advice of persons within the Commission viii.-h n..IliiiI.st 14 0 lu prollilei t nd ley tines Ciimm i uts I sin ' n (

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Itulos of Practice.

CONCLUSION Intervenors respectfully request that this document and the attachments be received by the Appeal Board instanter as a Supplement to our Statement of Exceptions filed on January 15, 1973, good cause having been shown for such action.

Respectfully submitted, kf Myronff. Cherry uh ~

Attorney for Intervenors Myron M. Cherry One IBM Plaza Chicago, Illinois 60611 312-222-9350 CERTIFICATION I certify that a copy of the foregoing Supplement to Saginaw Valley, et al., Intervenors' Statement of Exceptions to the Initial Decision was mailed postage prepaid and properly addressed to members of the Appeal Board, members of the Licensing Board, Secretary of the Atomic Energy Commission, and al:

counsel of record, on January 18, 19 ..

7 (lAS viMyron M. Cherry C

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While the Appeal Board may wish to build into the civilian nuclear safety program outmoded technology, which technology has been declared an undue risk by the ACRS, there is no excuse.for this Appeal Board to countenanen a Licensing Board's clear refusal to follow the most up-to-date technical information in accordance with its decisions. Moreover, there can be no justification for a Licensing Board to adhere to a directive that it must rely upon conclusions of the ACRS in uncontested areas and then carefully avoid the most recent conclusions of the '.~.,

The issue presented by this Exception is in reality quite simple. Atomic Safety and Licensing Boards are -

established with technical members because presumably - -

Congress wished the Licensing , Boards to bring to bear on their decision-making process a maximum amount of expertise in the nuclear area. While Licensing ' Boards regularly rely upon such expertise to foreclose Intervenors from inquiry (see Exceptions, supra) , we have not seen a Licensing Board draw upon its expertise to challenge a safety issue. Can it be fairly said that Drs. Goodman and Hall' (Con't.)

[l / unresolved safety items indicating that they either can be resolved during construction or in the case of the operat. af stage report within a reasonable time afte operation. When we look at how well the Applicant kept its promise in Palisades we must be persuaded that its identical promise in these dockets is self-serving and insupportable. Thus.

the ACRS is still noting unresolved safety problems as of the time of this Appeal indicating, bv definition, that the Applicant did not resolve the problems in connection with the Palisados Plant. There is no new evidence or assurance

.to indicate that the Applicant's promise will be kept in connection with these dockets.

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quantification. In such case, of course, NEPA, requiring compliance only to the fullest extent possible, would permit a qualifying analysis. However, to fail to make the effort to quantify and then not set forth reasons as to the basis for the " impossibility" of quantification __

is by definition an arbitrary and capricious act. See EDF v. Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971) which stands for the proposit.on that an administrative order which does not set forth the basis for the order is, -

without more, reversible . See also the Ad.ministrative Procedure Act, 5 USC, Section 552, et. sec. (1973) and --

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Section 2.760 (c) of the Commission's Rules of Pradtice.

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_ ADMINISTRATIVE CONFEREFCE OF THE UNITED STATES 726 JACK 5ON PLACE, N.W.

WASHINGTON, D.C. 20506 (202) 393 3/53 January 15, 1973 l

Mr. Myron M. Cherry 109 N. Dearborn Suite 1005 Chicago, Illinois 60602

Dear Mike:

In connection with your motion for the disqualification -

of Arthur Murphy in the Midland Case, I have received from the staff of.the AEC a request for information regarding __

the distribution of the first draft, dated April 7, 1972, -

of the Murphy paper, "The National Environmental Policy Act and the Licensing Process: Magna Carta or Coup de Grace?"

I have furnished the following information to the Commission staff, and I wish to bring it to your attention:

According to our records, we distributed the Murphy paper for comments in late April and early May to a number of persons interested in atomic energy licensing problems, including yourself. I enclose a copy of our letter to you, as well as a list of persons to whom the April 7 draf t was sent. I should point out that the list is not all-inclusive, since it is our practice to distribute reports of this nature upon requestao long as supplies hold out.

Sincerely yours, J( 'u h p~).

Richard K. Berg Executive Secretary Enc.

April 20, 1972 Mr. Myron S. Cherry 109 N. Dearborn Suito 1005 Chicago, Illinois 60602

Dear Mr. Cherry:

As you knou, the Administrative Conferenctr of the United Statec has undertaken a staff study of procedural '

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l problems in the licensing of nuclear pcuer plants by.the _

Atomic Energy Cormission. This study has now produced two tentative reports, onn by Profesnor Arthur U. Hurphy and the other by members of my staff. A copy of cach is enclosed for your uso.

The Committee on Licenses and Authorications of the Adminictrative Conference will be considering those l

report s in the near future. Your con:ments on the tuo i

reports and their conclusions vould be very much appreciaten.

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Sincere &y yours, l

Roger C. Cramton Chairman l

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_D_I_STitT111_1TTON OF MimPl!Y FI_R.ST Dit_ AFT _

l April 19, 1972 Dr. James R. Schlesinger, Chairman U.S. Atomic Energy Commission April 20, 1972 Mr. Timothy Atkeson . .-

Counsel on Environmental Quality Dr. Richard E. Belchiser - -

Office of Science and Technology -

Professor Kurt Borchardt .

Committee on Interstate and Foreign Commerce, RHOB Professor David F. Cavers Harvard University School of Law Mr. Myron M. Cherry Honorable William O. Boub U.S. Atomic Energy Commission i

i Professor S. David Freeman University of Pittsburgh 1 Mr. George L. Gleason Atomic Industrial Forum, Inc.

Professor Harold P. Green George Washington University .

Mr. Martin R. Hoffman '

U.S. Atomic Energy Commission

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Mr. William F. Kennedy General Electric Mr. Robert Lowenstein Lowenstein and Newman Mr. L. Manning Munt:ing Director of Regulacion U.S. Atomic Energy Commission Honorable John N. Nassikas, Chairman Federal Power Ccmmission Honorable James T. Ramey Commissioner U.S. Atomic Energy Commission

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Mr. Anthony Z Roisman Berlin, Roisman and Kessler -

Mr. Howard Shapar U.S . Atomic Energy Commission Mr. David Schoenbrod Assoc. of the Bar of the City of N.Y.

l Mr. Arvin Upton l

LeBocuf, Lamb, Leiby & NbcRae 1

i May 3, 1972 Mr. David E. Kartalia Office of General Counsel Professor Mason Woolrich ..

University of Virginia Law School i

Professor William K. Jones Columbia University School of Law i

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s Conference' records indicate that the Murphy paper.

was distributed on or before April 19, 1972 to the members of the Conference's Committee on Licenses and Authorizations, who included at that time:

Ben C. Fisher, Washington Attorney Jack K. Busby, President, Pa. Power & Light Co.

William Ming, Chicago Attorney David Sive, N.Y. Attorney John A. Carver, Jr. , Commissioner, FPC Mitchell Milech, Solicitor, Dept. of Interior James T. Ramey, Commissioner, AEC Merritt Ruhlen, Hearing Examiner, CAB - --

Frank Wille, Chairman, FDIC Dale Hardin, Commissioner, ICC _

On June 29, 1972, after personnel changes in the organization.of the Committee, copies of the Murphy '

report were sent to Allan J. Kirk, Deputy General Counsel . .

.E?A; Professor Owen .Olpin, University of Utah Law School; and Harold Russell, Atlanta Attorney.

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