ML19329E711

Statement of Mm Cherry Re Filing of Certain Motions.Submits Motions to Dismiss Suspension Charges for Lack of Jurisdiction

ML19329E711
Person / Time
Site:	Midland
Issue date:	02/02/1978
From:	Bonderman D, Cohen R, Freeman M ARNOLD & PORTER, CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19329E712	List: ML19329E711 ML19329E717 ML19329E720 ML19329E723
References
NUDOCS 8006170861
Download: ML19329E711 (3)

Text

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S UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board For Special Proceeding In the Matter of )

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CONSUMERS' POWER COMPANY ) Docket No. 50-329)

', ) 50-330)

Midland Plant, Daits 1 and 2 ) (Special Proceeding)

STATEMENT OF MYRON M. CHERRY WITH REGARD TO FILING OF CERTAIN MOTIONS At the January 9, 1978 pre-hearing conference in this matter, counsel for Mr. Myron M. Cherry expressed the intention of filing a number of preliminary motions.

January 9, 1978 Transcript, at 26. This Special Board ordered that any jurisdictional motions be filed by Friday, February 3, 1978. Id. at 103.

In the course of the January 9 conference, counsel for Mr. Cherry noted that this proceeding had a number of highly unusual features, including the wholesale recusal of the Appeal Board; the Commission's willingness only to finance the prosecution of those charges preferred by the Midland Board with which the 8006170EdS[

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, 4 staff agreed; and the possible application to the mem-bers of this Special Board of the same considerations which led the members of the Appeal Board to recuse themselves. See, e.g., January 9, 1978 Transcript at 11, 13, 19-20. Since the date of the pre-hearing conference, this proceeding has taken on an additional unusual aspect.

On January 30, 1978, the Chairman of the Com-mission -- on the basis of information, the precise nature of which was not specified -- wrote to the Chair-man of this Special Board with copies to all parties to this proceeding. While the letter is not entirely clear in this regard, it appears that the Commission has revoked or intends to revoke this Special Board's power to deal with any matters other than settlement.

The January 30 letter does not specifically abrogate'this Board's January 9, 1978 orders on filing dates. However, it now appears appropriate to hold in abeyance a number of motions which we would have filed had it been intended that this Board continue to preside over this matter. Accordingly, we are submitting herewith three motions to dismiss

, 1 3-charges against Mr. Cherry for lack of jurisdiction, as required under the February 3 filing deadline.

This filing is without prejudice to the submission of additional preliminary motions in the event that this proceeding continues.

Respectfully submitted, l

l hU [. &fw Milton V. Freeman David Bonderman Rosalind C. Cohen

. Patrick Grant Lawrence V. Stein Arnold & Porter 1229 Nineteenth Street, N.W.

Washington, D.C. 20036 Attorneys for Myron M.

l Cherry Dated: February 2, 1978

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