ML19330A249
| ML19330A249 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 02/25/1972 |
| From: | Lowenstein R CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007151039 | |
| Download: ML19330A249 (10) | |
Text
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p UNITED STATES OF AMERICA' ATOMIC ENERGY COMMISSION In the Matter of
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J J.5-75,
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t CONSUMERS POWER COMPANY
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Docket Nos. 50-329
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50-330 (Midland Plant, Units 1 and 2)
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APPLICANT'S RESPONSE TO
" EXHIBIT A TO SAGINAW VALLEY ET AL.
INTERVENORS' STATEMENT OF ENVIRONMENTAL CONTENTIONS" Applicant, Consumers Power Company, hereby responds to
" Exhibit A to Saginaw Valley Et A1. Intervenors ' Statement Of Environmental Contentions."
This exhibit includes (1) a motion "for the entry of an Order permitting ~[Saginaw Intervenors]
to file detailed requests for discovery within fouteen (14) days after the Board has ruled upon the scope of environmental inquiry" and (2) a request for the Board to require Applicant, the Staff and Dow to answer an interrogatory.
Part I of this response addresses itself to intervenors' motion.
Part II is addressed to intervenors' request for an interrogatory.
I.
Applicant does not oppose intervenors' motion insofar as it relates to environmental matters that are presently outside the scope of this proceeding but which may be brought therein by future rulings.
An example of this category would be the matter of ultimate high level waste disposal.
As the Board has recognized (Tr. '5227 - meeting of counsel on January 19, 1972),
and as applicant agrees, it would be premature now to -require detailed requests for discovery concerning such matters.
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-2 Applicant, however, opposes intervenors' motion insofar as it relates to environmental matters clearly within the scope of this proceeding.
This category includcs all of the matters discussed by Applicant in its environmental report and the Staff in its draft environmental statement.
As to this category, intervenors have been on notice for some time that prompt formulation of requests for discovery concerning such environmental issues was considered by the Board to be a part of intervenors' obligation to expedite this proceeding.
No reason has been advanced by intervenors to justify an extension with regard to matters which are recognized by all parties to be within the scope of the AEC's environmental review in this proceeding.
As intervenors well know, if their motion we,re to be allowed, the schedule established by the Board to move this proceeding to hearing on environmental matters would in all probability be impossible to achieve.
One extension of time of over a month has already been granted for intervenors' convenience, and no reason appears why a further extension of time should be granted to Sagiaaw.
Indeed, at the meeting with counsel on January 19, 1972, the Board denied a request by Saginaw intervenors which they have renewed in the present motion.
For the foregoing reasons, which are more fully set forth below, Saginaw's motion should be denied insofar as it relates to environmental matters which are within the scope l
of-Applicant's environmental report and the Staff's draft environmental statement.
A In addressing itself to environmental issues in its order of August 26, 1971 the Board stated (at p. 3) :
The Board is concerned, however, lest delar in completion of discovery unnecessarily postpone the hearing and, accordingly, it is ordered that all parties serve and file all motions for discovery cor.cerning issues arising under the National En-ironmental Policy Act. permitted under 10 CFR S2.740, 2.741, and 2.744 by no later than September 30, 1971.
(Emphasis supplied).
Saginaw's response, filed September 30, 1971, consisted of a letter with motions enclosed, one of which was a request for documents which Saginaw feels (Exhibit A p. 1) :
"necessarily was broad in scope because of the absence of the refinement of the environmental scope of inquiry in this proceeding."*
In its order dated December 22, 1971 the Board established a schedule for proceedings on environmental matters which included these provisions:
5.A.
- 1) On or before December 31, 1971 opposing intervenors will each serve and file in writing with respect to Applicant's Environmental Report:
(iii) their requests for discovery which they believe is warranted by the issues they are raising.
5.B.(2) On or before February 4, 1972, opposing intervenors will each serve and file in writing with respect to the (Staff's]
Draft Statement, their contentions, posi-tions and requests, in the same form as with respect to Applicant's Environmental Report in [5. A. (1) (iii) ] above.
Applicant's Supplemental Environmental Report was filed on October 19, 1971.
Amendments thereto were filed on December 14, 1971, December 29, 1971 and January 7, 1972.
The Staff 's draf t statement was filed on January 7, 1972.
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Commenting on this schedule in the December 22, 1971 order, the Board stated:
The... schedule for dealing with environmental procedural matters, is designed to encourage all parties to exercise their best efforts in good faith to refine the contested envircnmental issues in this proceeding, with a view towards disposing of those which are ripe for hearing or other action at the earliest reasonable time.
(Order of Decembar 22, 1971, p. 12).
On December 24, 1971 Saginaw intervenors filed a motion seeking reconsideration of the December 31, 1971 deadline the-posed in the December 22, 1971 order.
Their motion alleged that the Board had allowed intervenors insufficient time to comply with its directive.
Accordingly, on January 6, 1972 the Board or-dered that the December 31, 1971 deadline, insofar as it per-tained to Sr.ginaw intervenors, be extended until February 4, 1972.
At the. meecing of counsel on January 19, 1972, Saginaw renewed taeir request for reconsideration of the February 4, 1972 date set by the order of December 22, 1971.**
The Board denied that request.
(See Tr.
5208-5227.)
In so ruling Chairman Murphy stated:
I think what the Board will do will be to adhere to its December 22 order, there are
[ environmental matters covered by the Applicant's and Staff's documents] which it seems to me you ought to have a very good idea as to what it is you want to know on the basis of these documents.
And as to those things, it seems to me you should be required to say what they are.
As modified, in part, by the order of January 6, 1972.
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-a-On February 6, 1972 Saginaw intervenors filed their
" Statement of Environmental Contentions," which document con-j tained no requests for discovery concerning either Applicant's environmental report or the Staff's draft statement.
In Exhibit A to their statement, Saginaw intervenors moved for the Board to issue a new order concerning discovery " permitting them to file detailed requests for discovery within fourteen (14) days after the Board has ruled upon the scope of environmental inquiry".
As grounds for this motion intervenors recited, in part:
Intervenors have labored diligently and in good faith to prove this Statement of Environmental Contentions based upon submissions made by Applicant and the Regulatory Staff.
Intervenors do not believe it makes sense to file detailed interrogatories with respect to these Contentions, until such time as the Board has ruled upon the scope of environmental inquiry.
Intervenors' " Exhibit A" sets forth no reason why Saginaw is presently unable to request discovery concerning environmental matters which are clearly, and without dispute, within the scope of this proceeding.
Nor does it set out any other reason why such a task could not have been completed with',n the time limit allotted by the Board.
As the Board noted in its January 6, 1972 order granting Saginaw's requested extension of time in which to comply with
- 15. A. (1),
The~re are limits to the concessions which can properly be made.
Unlike law suits the consequences of delay and postponement of this type of proceeding are potentially very serious.
O I)
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s.
Saginaw's refusal to file its requests with respect to those environmental matters discussed in Applicant's environmental i
report and the Staff's draft statement is in flagrant disregard of the Board's earlier rulings since no valid justification for its failure has been set forth.
If intervenors' motion were allowed it would place in serious jeopardy the schedule which tne Board has established for moving this case to hearing on environmental matters and would probably make observance of that schedule impossible.
Accordingly, we urge that Saginaw's motion concerning requests for discovery, insofar as it relates to environmental matters within the Applicant's environmental report and the staff draft environmental statement, be denied.
II In Exhibit A to their February 6 statement, Saginaw intervenors request that the Board issue an order compelling Applicant, Dow and the Staff to answer an interrogatory.
The request in its entirety reads as follows:
F.
Intervenors at this time and in addition to outstanding requests, ask Dow Chemical, the Regulatory Staff, and Applicant the following interrogatory:
Please list by category or other charac-terization all documents and other information (as those terms were defined in earlier interrogatories addressed to the parties) which deal with, relate to, or discuss each of the Contentions which i
each of you reasonably agree is within the scope of environmental inquiry.
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. If each of the parties is required to answer this interrogatory, the process of discovery will begin without the added burdens of argument i
upon matters of' inquiry not yet the subject of a Board decision.
(Exh. A, p. A-3)
This request clearly should be denied.
Saginaw's
~ interrogatory is far too broad to be allowed.
Similar requests have previously been made by intervenors and have been dis-allowed by the Board.
CONCLUSION Commenting on the environmental schedule established in its order of December 22, 1971 the Board said:
...[The Board] intends to keep tight continuing control over these, proceedings, and will not tolerate ex parte action by any party in violation of this schedule.
(December 22, 1971 order, p. 13).
Saginaw's refusal to furnish requests for discovery as re-quired by the Board's December 22, 1971 order, and as reaffirmed by the Board on January 19, 1972 and its submission.of a patently improper interrogatory as a substitute, in our view consti-tutes an attempt at precisely that type of ex parte action which threatens the progress of this proceeding.
For the reasons set forth above, the Saginaw motion for extension of time to file requests for discovery and the u
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' request for the order discussed in section II of this mem-orandum should be denied.
Respectfully submitted, LOWENSTEIN, NEWMAN & REIS 1100 Connecticut Avenue, N. W.
Washington, D.
C.
20036 Dated:
February 25, 1972 By_ '
Robert L'owenstein Of Counsel, Harold P.
Graves Harvey Price Attorneys for Applicant John K.
Restrick Consumers Power Company Richard G.
Smith I
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- l UNITED' STATES OF AME F~ A j
ATOMIC ENERGY COMMISSION In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329
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50-330 t
(Midland Plant, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Response to
' Exhibit A to Saginaw Valley Et A1. Intervenors' Statement of Environmental Contentions'", dated February 25, 1972, in the above captioned matter have been served on the following in person or by deposit in the United States mail, first class or airmail, this*25th day of February, 1972.
Arthur W. Murphy, Esq., Chairman Dr. David B. Hall Atomic Safety and Licensing Board Los Alamos Scientific Columbia University School of Law Laboratory Box 38, 435 West ll6th Street P. O. Box 1663 New York, New York 10027 Los Alamos, New Mexico Thomas F. Engelhardt, Esq.
Honorable Curtis B. Beck David E. Kartalia, Esq.
Assistant Attorney General Robert Newton, Esq.
State of Michigan Regulatory Staff Counsel 630 Seven Story Office Bldg.
U.S. Atomic Energy Commiss. ton 525 West Ottawa Washington, D. C.
20545 Lansing, Michigan 48913 William A.
Groening, Jr., Esq.
Anthony Z. Roisman, Esq.
James N. O'Connor, Esq.
Berlin, Roisman & Kessler The Dow Chemical Company 1712 N Street, N.W.
2030 Dow Center Washington, D.C.
20036 Midland, Michigan 48640 James A. Kendall, Esq.
Myron M. Cherry, Esq.
Curr#
and Kendall 109 North Dearborn Street 135 arth Saginaw Road Suite 1005 Midland, Michigan 48640 Chicago, Illinois 60602 Milton R, Wessel, Esq.
Honorable William H. Hard Allen K?zsbom,Esq.
Assistant Attorney General J.
Rich,rd Sinclair, Esq.
State of Kansas Kaye, Scholer, Fierman, Hays I Topeka, Kansas 66612 and Handler 425 Park Avenue Dr. Clark Goodman New York, New York 10022 l
Professor of Physics University of Houston William J.
Ginster, Esq.
I 3801 Cullen Boulevard Suite 4, Merrill Bldg.
Houston, Texas 77004 Saginaw, Michigan 48602 i
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Irving Like, Esq.
Reilly, Like & Schneider 200 West Main Street Babylon, New York 11702 i
Algie A. Wells, Esq., Chairman Atomic Safety and Licensing Board Panel U.S. Atomic Energy Commission Washington, D.C.
20545
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i Stanley T.
Robinson,Esq.
I Chief, Public Proceedings Branch Office of the Secretary of the Commission U.S. Atomic Energy Commission Washington, D.C.
20545 W
Jack R. Newman 4
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