ML20093A247

Ack Receipt of B Boskey & DB Macguineas Re 840626 Meeting & Request for Enforcement Action.Alabama Electric Cooperative,Inc Ltr Should Be Disregarded & Maneuvers Should Not Be Permitted to Delay Action on 840703 Petition

ML20093A247
Person / Time
Site:	Farley
Issue date:	07/05/1984
From:	Bouknight J ALABAMA POWER CO., NEWMAN & HOLTZINGER
To:	Palladino N NRC COMMISSION (OCM)
References
A, NUDOCS 8407100248
Download: ML20093A247 (2)

Text

jM NEWMAN & HOLTZINGER, P. C.

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Honorable Nunzio J. Palladino, Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Mr. Chairman:

I have received a copy of a July 2, 1984, letter addressed to you, eigned by Mr. Bennett Boskey and Mr. D.

Bisrd MacGuineas, attorneys for Alabama Electric Coperative, Inc. ("AEC"). The subject of their letter is a Memorandum, dated June 26, 1984, summarizing your meeting on that date with representatives of Alabama Power Company ("APCo") , myself included.

I am puzzled by Mr. Boskey's and Mr. MacGuine i' sug-gestion that this meeting and other ueetings referred to in the Memorandum may have been held on an "ex parte basis,"

and by their expression of surprise that notice was not given to Alabama Electric Cooperative, Inc. or its counsel.

As your Jane 26, 1984 Memorandum indicates, without con-tradiction from AEC's attorneys, the referenced meetings preceded the filing of AEC's June 29, 1984 Section 2.206 request for enforcement action against APCo, as well as Alabama Power Company's July 3, 1984 Petition for Declaratory Order. Moreover, even had AEC's filing preceded the meet-ing, the ex parte rules contained in the Administrative Procedure Act, 5 U.S.C. S 557, and in the NRC Rules of Practice and Procedure, 10 CFR S 2.780(a), apply only to formal proceedings on the record then pending before the agency, and such a proceeding is certainly not "pending" merely as a result of the Commission having received a letter requesting that it initiate enforcement proceedings.

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Hon. Nunzio J. Palladino, Chairman July 5, 1984 Page Two Therefore, the ex parte rules clearly are not applicable.

i Thus, the meetings described in AEC's letter provide AEC with absolutely no basis for complaint or for a demand for the notes or memoranda, if any, of any Commissioner or NRC Staff member concerning those meetings. The experienced and sophisticated attorneys who wrote to you on behalf of AEC surely know that.

The meetings referred to in your Memorandum clearly involved no impropriety. APCo sought to discuss with you and other appropriate persons at the NRC alternative procedures for resolving a dispute that has the potential for occupying substantial rescurces of the Commission and the parties for many years. AEC's letter evidences the lengths to which AEC is apparently prepared to go to delay and complicate even the threshold procedural stages of this

. matter.

For these reasons, AEC's letter should be disregarded, and its maneuvers should not be permitted to delay the Com-mission's action on the Petition for Declaratory Order submitted by APCo on July 3, 1984. ,

Sincerely, t

. . Bouknight, Jr.

torney for Alabama Power Company JAB:cw l

cc: Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Herzel H.E. Plaine, Esq.

l Secretary, Docketing & Service Bennett Boskey, Esq.

D. Biard MacGuineas, Esq.

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