ML19331B005

Opposes Motion to Strike Exceptions & Requests Matter Be Taken on Appeal for ASLB Failure to Approach Case Objectively.Certificate of Svc Encl

ML19331B005
Person / Time
Site:	Midland
Issue date:	04/21/1975
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, Saginaw Intervenor
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8007240584
Download: ML19331B005 (4)

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• n"? A UNITED STATES OF AMERICA p;i: APR241975 k

, g NUCLEAR REGULATORY COMMISSION ng og;f,,f; 5",7f 3 C wm BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD \ p / c.

In the Matter of )

) Construction Permit CONSUMERS POWER COMPANY ) Nos. 81 and 82

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. (Midland Plant, Units 1 & 2) ) (Shoa Cause) - o< >

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SAGINAW VALLEY NUCLEAR STUDY GROUP, ET AL.

RESPONSE TO MOTION TO STRIKE EXCEPTIONS There is pending before the Appeal Board the motion of Consumers Power Company to strike exceptions filed by Saginaw Intervenors on the grounds that no brief was filed. We oppose the motion and ask that the matter be taken on appeal for the following reasons:

1. The exceptions of the Saginaw Intervenors were based entirely upon legal grounds and the most important exception, in Saginaw's judgment, was the failure to reopen the record to con-sider the fact of the Palisades lawsuit. This matter was fully briefed before the Licensing Board and was also the subject, indirectly, of decision by the Appeal Board when the Appeal Board earlier extended time to file exceptions until the Licensing Board ruled on the motion to reopen;

2. On several occasions, the Licensing Board (an,d the Atomic Energy Commission, not the Nuclear Regulatory Commission) 8007240 N

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refused to consider on the merits Saginaw's claim for attorn" 's fees, even though it was clear that Saginaw was unable to proceed without attorney's fees and was capable, if funded, to make an important contribution to the hearings. Indeed, if it were not for Saginaw Intervenors, many issues of tremendous importance would not at all have been raised in the hearing; if one looks at the Midland hearings as a whole, it is clear that many of Saginaw's issues of first impression raised very early in these and other proceedings have now become accepted as controlling law and precedent;

3. Saginaw did not file a brief because it could not afford to do so, and because the Atomic Energy Commission and.

the Nuclear Regulatory Commission did not face up to tnis question of funding sufficiently early to enable Saginaw to participate.

The Licensing Board did not approach the case objectively and the protteding held below was nothing more than a sham. In addition, Saginaw, under the circumstances, felt it was necessary to file the exceptions to call to the attention of the Appeal Board the irregularities below and felt that the citation of authority in the exceptions (in addition to the briefs and argu-raents filed with the Licensing Board, all of which are available to the Appeal Board) were an adequate statement to call into play the obligation of the Appeal Board to rule on these matters; and

4. Even if Saginaw is in default of filing a brief (such default being for good cause as indicated above), the Appeal Board has an independent obligation to rule on the merits of the exceptions

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and particularly the failure to reopen the record. Since the failure to reopen the record represents a failure of the regu-latory process, that is, the failure to consider the relevance of the Palisades lawsuit, Saginaw believes the Appeal Board has an independent obligation to hear and determine the excep-tions.

WHEREFORE, Saginaw requests the Appeal Board to deny

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the motion of Consumers Power Company and to hear and determine the exceptions ~.*-

Respectfully submitted, SAGINAW ItiTERVC; ORS

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By: , 11.'T ) -$*

Their Attc;ney

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Myron M. Cherry Suite 4501 One IBM Plaza Chicago, Illinois 60611 (312) 565-1177

• In the event that the Appeal Board wishes argument on the exceptions in addition to those arguments set forth in the entire of the record (including that before the Licensing Board) counsel for Saginaw Intervenors, even though no funds are available, will endeavor to assist. However, under these circumstances, we urge the Appeal Board to hear and determine the exceptions without requiring Saginaw to file any further papers.

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m CERTIFICATE OF SERVICE

. I certify that four copies of the foregoing document were served, postage prepaid and pr'operly addressed, on the Atomic Safety and Licensing Appeal Board on April 21, 1975.

I further certify that a copy of the foregoing document was

. served in the same manner on counsel for Consumers Power Company, counsel for Bechtel, counsel for Dow Chemical, and counsel for

. the Regulatory Staff, as well as the Secretary of the !!uclear Regulatory Commission.

O JU b M F MYRON M. C ERRY I

, 7[M April 21, 1975 f[:iy r;,"ll? S

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