ML19331A606

Registers Opposition to CPC Motion for Continuance of Hearing Pending NRC Decision Re CPC Motion to Halt Hearing Due to Supreme Court Decision.Svc List Encl

ML19331A606
Person / Time
Site:	Midland
Issue date:	03/10/1977
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Coufal F, Leeds J, Luebke E Atomic Safety and Licensing Board Panel
References
NUDOCS 8007180678
Download: ML19331A606 (4)

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MYRON M. CHERRY h~ A* % o e i. uu y

CHICAGO. lLLINols 6o618 h , rain C. in March 10, 1977 Dr. Emmeth A. Luebke Dr. J. Venn Leeds Atomic Safety and Licensing Board 10807 Atwell U. S. Nuclear Regulatory Commission Houston, Texas 77096 Washington, D. C. 20555 Frederic J. Coufal, Esq., Chairman l Atomic Safety and Licensing Board Panel

• U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Re: Midland Suspension Hearings Gentlemen:

I herewith register my opposition to the recent motion filed by Consumers Power Company to continue the hearings pending a de-cision by the Nuclear Regulatory Commission on Consumers' motion to halt the hearing entirely on the grounds that certiorari was recently granted by the Supreme Court.

Our reasons are simply as follows:

1. The Licensing Board has no jurisdiction to entertain t the request since it has been ordered by the Nuclear Regulatory l Commission to hold these hearings; 1

2. Consumers having filed for an overall delay with the Nuclear Regulatory Commission, the matter is now pending before the Nuclear Regulatory Commission and the Licensing Board is similarly ousted from jurisdiction; '

3. The motion has no merit but is merely a delay tactic '

for the following additional reasons:

l (a) the NRC cannot halt these hearings (and hence, l

the 'Acensing Board cannot continue them) because the mandate was i

issued by the Court of Appeals and there has been no stay of that mandate; (b) The granting of certiorari by the Supreme Court is a neutral event and is not an indication that the Supreme Court intends to reverse.

4. A delay in the hearings at this point would be severely prejudicial to Intervenors plus the public interest, and we urge the Board to deny the motion.

8 o o 71 so gryg g _

Drs. Luebke and Leeds and Mr. Coufal -

Page Two March 10, 1977 We intend vigorously to oppose Consumers' filing with the NRC and are in the process of preparing our papers. For all of these reasons, we ask the Licensing Board to deny the motion for continuance, both because it has no jurisdiction and because it is not meritorious and would result in massive prejudice to the remaining parties and the public interest.

I should also like to confirm the following:

1. We ask that the. Board vacate its Order denying Dr. Timm from viewing testimony. As the Board knows, Dr. Timm has been intimately involved in the preparation of this case and my cross-examination of opponents' witnesses. I do not have the competence to analyze the technical material which has now been tendered in supplemental redirect and rebuttal and unless I can confer with Dr.

Timm, I will not be in a position to cross-examine any witnesses or represent my clients. In view of the contribution which I (with the help of Dr. Timm) have thus far made, it would be a tragedy for us not to be in a position to participate.

In addition, unless the Orders are vacated, and Dr. Timm can confer with me on the testimony, it will be a denial of due process since the Appeal Board has already held that a lawyer must have available to him people to assist him in technical matters.

The only person I have available is Dr. Timm. See Order of the Appeal Board in ccnnectica with this Docket, March 4, 1977, ALAB-379 at pages 7-8.

Additionally, the Regulatory Staff has not made a valid showing for prohibiting Dr. Tinm from seeing any testimony before he is cross-examined. Merely because Dr. Timm is generally aware of areas of cross-examination is not a sufficient basis for denying him access to the testimony. What we are seeking is truth (and Dr. Timm's real opinion) and not some kind of charade of meaningless gesture by the Regulatory Staff. In fact, because of the inter-relationship of all the testimony, it will be absolutely impossible for me to confer with Dr. Timm at all without somehov violating the Board's Order. Thus, it is unworkable.

As the Appeal Board noted in.ALAB-379, we are not here dealing with the credibility as to factual occurrences, but with technical data and the Order must be vacated.

In the event that the Order is not immediately vacated, I ask the Board to certify the matter to the Appeal Board so that I am not put in the untenable position of not being able to prepare.

Drs. Luebke and Leeds and Mr. Coufal Page Three March 10, 1977

2. I hereby give notice that I intend to oppose signifi-cant portions of the testimony filed both by the Regulatory Staff and Consumers Power Company because the filings do not meet the good cause requirement established by the Board. I will file the formal papers next week, but am notifying the Board and the parties now. The final preparation of my documents necessitates a confer-ence with Dr. Timm and I am fearful that any communication with him that I have now may be in contempt of the Board's Order, which we ask be vacated and which is the subject of point number 1 above.

3. Finally, I confirm my oral request to the Chairman that the Order denying us financial assistance be certified with the Appeal Board and if necessary, to the Commission for a very prompt ruling. In light of the fact that the Licensing Board has made findings concerning the valuable and necessary assistance of myself and Dr. Timm, we believe that the case is sufficicrtly unique so that the Commission may modify its position a.1d grant financial assistance since it is doing so in at least one other case (i.e., the GESMO proceeding).

Surely, this is a critical case where' financial assistance i

is necessary and both the Appeal Board and Commission should offer their views immediately.

.. Respectfully, p

Y . Cherr Myroa\h& Vl/

Couns 1 for al Interve ors MMC:es excep 'Dow Chemical Co any cc: Service List (attached) l l

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-- . . - .. - , .- =- - .,. . . . , _ .

. s SERVICE LIST Lawrence Brenner, Esq.

U. S. Nuclear Regualtory Commission Washington, D. C. 20555 James F. Rosso, Esq.

R. Rex Renfrow, III, Esq.

Isham, Lincoln & Beale One First National Plaza Chicago, Illinois 60603 Lee F. Nute, Esq, Dow Chemical Company Midland Division Midland, Michigan 48640 Mr. C. R. Stephens v Chief, Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. Richard Timm 1038 Cascade, N.W.

Salem, Oregon 97304

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