ML19330A287

Response Opposing Saginaw-Sierra Motion Requesting Extension of Time within Which to File Findings of Facts & Conclusions of Law.Motion Based on Allegation,Shows No Good Cause & Will Prejudice Other Parties.Certificate of Svc Encl

ML19330A287
Person / Time
Site:	Midland
Issue date:	08/16/1974
From:	Brown P BECHTEL GROUP, INC., CLARK, KLEIN, WINTER, PARSONS & PREWITT
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007160834
Download: ML19330A287 (5)

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UNITED STATES OF AMERICA ATCMIC ENERGY COMMISSION In the Matter of )

Construction Per=it CONSUMERS POWER COMPANY )

No. 81 and 62 (Midland Plant, Units 1 and 2) )

RESPONSE OF EECHIEL POWER CORPOPATICN /dC EECHTEL ASSOCIATES PROFESSIONAL CORPOPATION TO SAGU'.W-SIERRA'S MOTION REQUESTING AN EXTENSION OF TIME WITHIN 14HICH TO FILE FINDINGS OF FACT AND CONCLUSIONS OF LAW BECHTEL POWER CORPOPATION and BECHTEL ASSOCIATES FROFESSIONAL CORPORATION ("Bechtel") opposes the Motien of Saginaw-Sierra for an extension of time within which to file findings of fact and conclusions of law for the folicwing reasons:

1. Saginaw-Sierra's Motion is based cn its allegation that since its attorney is working without fees, it would work a hardship on Saginaw-Sierra if the additional time is not granted. The Atomic Energy Commission has, however, ruled that Saginaw-Sierra is not indigent.1 It follows that Saginaw-Sierra is not unable to pay attorneys' fees.2 It would,therefore, lj Memorandum and Order, July 10, 1974.

2) As the Commission stated, " Intervention in our licensing proceedings, based on affirmations of bona fide interest, carries with it an obligation to bear often substantial costs to the extent of the intervenor's capabilities.

Thus, intervention may sometimes require an intervening organization to re-order its budgetary priorities. While we do not suggest that an intervenor must show that it is totally without funds from any source as a precondition to seeking assistance from this Commission, we would require a substantial showing, from a responsible official, that all reasonable efforts have been made unsuccessfully to provide sufficient funds for the intervention. Absent such a showing, the bona fides of the intervention is called into question."

8007160 D L[

.. . "N be improper and unfair for this Licensing Board to grant Saginaw-Sierra's Motion since the grounds for that Motion have been refuted.

2. Counsel for Saginaw-Sierra received the transcripts from the 4

Show Cause Hearing in due course. He was, therefore, aware of the fact that proposed Findings of Fact and Conclusions of Law were to be filed "from all parties, including the Intervenor Saginaw group'on August 12, 1974.5 Thus, Saginaw-Sierra had approximately tbree weeks in which to prepare its Findings of Fact and Conclusions of Law. Nevertheless, Saginav-Sierra delayed until the day on which its proposed Findings were due to re-quest an extension. Thus, its motion ignores the Appeal Board's statement 6

in ALAB-ll7:

"[W]e do not approve of the practice of submitting motions for extensions of time by mail on the date the substantive document is due for filing. To be sure, the Commission's rules provide that documents are deemed filed when mailed.

10 CFR 2.701(c). But when the document being filed is a motion for an extension of time, rather than the substan-tive document itself, we think it appropriate that the motion be transmitted in sufficient time to be in our hands no later than the day before the substantive document is due. We have previously expressed our expectations that this practice would generally be followed.... Hereafter, we will view the failure to follow this practice in con-nection with any motion for an extension of time as pro- j viding a sufficient basis, in and of itself, for denying '

the motbn. Any motion which is not transmitted in com-pliance with the time frame set out above must contain, l

l 3] See 10 CFR 2.730(b).

y Transcript, 592.

5/ Transcript, 710.

i 6/ It is noted that counsel for Saginaw-Sierra was also one of the attorneys of record in ALAB-ll7 1

"in addition to the reasons relied upon to justify the ex-tension, a showing of good cause for the failure to trans-mit the motion in timely fashion."7 3 The Saginaw-Sierra Motion not only contains nothing to justify the granting of an extension but also contains no showing of good cause for the failure to transmit the Motion in timely fashion. Saginaw-Sierra's claim that failure to grant the requested extension would work a " hardship" on it is illogical. There is no relationship between working without fees three weeks ago and working without fees during the next two weeks. Counsel for Saginaw-Sierra could have performed his pro beno activities equally ef-fectively during the past three weeks as in the next two.

4. Saginaw-Sierra has been accorded great leeway in this proceeding in order that they might be heard. Nevertheless, their participation has been characterised by one default after another. Although their own exten-sive interregatories were comprehensively answered, Saginaw-Sierra's Answers were non-responsive and incomplete and Saginaw-Sierra has not yet complied with the Motion to Compel Answers filed by Consumers Power Company and granted by this Licensing Board. Saginaw-Sierra filed no written testimony. Saginaw-Sierra did not file a trial brief despite the specific direction from this Licensing Ecard to do so. S.aginaw-Sierra did not appear at the hearing nor did it request that this Licensing Board ttke official notice of docu=ents.

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. 7/ Louisiana Power and Light Company, Waterfcrd Steam Electric Station Unit 3, RAI-73-4 pp. 261-262. (Emphasis in the original.)

8/l Transcript, 124-125.

l o . - s f Finally, Saginaw-Sierra filed no proposed Findings of Fact and Conclusions of Law; rather, it waited until the day the substantive documents were due to request an extension of time.9

5. If this Licensing Board grants the Motion of Saginaw-Sierra, the other parties to this proceeding who have diligently prepared, partici-pated, and complied with deadlines, in order that the issues might be openly, timely and effectively explored, will be prejudiced. Saginaw-Sierra have the unfair advantage of having before it the proposed Findings filed by the other parties as a guideline for preparing its own proposed Findings, and will, therefore, have been accorded preferential treatment to the detriment of the other parties. Furthermore, if Saginaw-Sierra's Motion is granted, a precedent of permissive default will be set thereby hindering the power and authority of future licensing boards to conduct fair, orderly, timely and non-prejudicial hearings..

WHEREFORE, Bechtel prays that this Licensing Board deny the Saginaw-Sierra Motion for an extension of time within which to file its Findings of Fact and Conclusions of Law.

Respectfully submitted, CIARKh4LEIN NTER, PARSCNS & PREWITT

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@dbh A P. Robert Brown, Jr.

Individually and for the .

Attorneys for BECHTEL POWER CORPORATION and BECHTEL ASSOCIATES PROFESSIONAL CORPORATION 1600 First Federal Building Detroit, Michigan 48226 g In this light, it is to be noted that this Licensing Board specifically stated that these propo ed Findings were to be filed by all the parties  :

simultaneous'ly (Transcript, 707). l

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,, _ , , , x UNITED STATE OF AMERICA dj

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ATOMIC ENERGY CCMMISSION .

'6 In the Matter of )

Construction Permits CONSUMERS PWER COMPANY ) Nos. 81 and 82 Midland Plant, Units 1 and 2 ) bd'

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CERTIFICATE OF SERVICE I hereby certify that copies of the attached " Response of Eechtel Power Corporation and Eechtel Associates Professional Corporation to Saginaw-Sierra's Motion requesting an extension of time within which to file findings of fact and conclusiens of law," dated August 16, 1974, in the above captiened matter, have been served en the following by deposit in the United States mail, first class, er airsail, this 16th day of August,1974:

Secretary (20) Myron M. Cherry, Esq.

U.S. Atemic Energy Cc==ission Jenner & Block Attn: Chief, F;blic Proceedings One IEM Plaza Branch Chicago, Illinois 60611 Washing',on, D. C. 20545 James P. Murray, Jr. John G. Gleeson, Esq.

Chief Rulemaking and Enforcement Legal Department p Counsel The Dow Chemical Co pany U.S. Atomic Energy Cc= mission 2030 Dow Center Washington, D. C. 20545 Midland, Michigan 48640 Michael Glaser, Esq. Michael I. Miller, Esq.

1150 17th Street, N.W. R. Rex Renfrew III, Esq.

Washington, D. C. 20036 Isham, Lincoln & Beale One First National Plaza Lester Kornblith, Jr. 42nd Floor U.S. Atomic Energy Cc= mission Chicago, Illinois 60670 Washington, D. C. 20545 Dr. Emmeth A. Luebke U.S. Atomic Energy Commission Washington, D. C. 20545 bi Q  % l P. Robert Brown, Jr.

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