ML19331A877

Affidavit in Further Opposition to Dow Chemical Co Consolidate.No Regard for Saginaw Intervenors' Convenience & Necessity Given & No Certification of ASLB Decision Made

ML19331A877
Person / Time
Site:	Midland
Issue date:	05/24/1972
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:
Shared Package
ML19331A875	List: ML19331A874 ML19331A876 ML19331A877
References
NUDOCS 8007230909
Download: ML19331A877 (8)

Text

l 1

f3 U

D cet Nos. 50-329 and 50-33c original signed and notarized and sent tg Secretary, USAEC  ;

AFFIDAVIT OF MYRON M. CHERRY STATE OF MARYLAND SS.

COUNTY OF MONTGOMERY Myron M. Cherry, being duly sworn on oath, states:

1. My name is Myron M. Cherry. I mn counsel for the following intervenors: Saginaw Valley Nuclear Study Group; Sierra Club; United Auto Workers of America International; Trout Unlimited, M!cnigan Chapter; West Michigan Environmental Action Council; Michigan Citizens for a Better Environment; and University of Michigan Environmental Law Society.

P. For convenience in this hearing, these seven inter-venors have consolidated their position and have been referred to as the Saginaw Valley Intervenors. The Saginaw. group represents a broad series of interests in contrast to the personal and property interests of the several persons who intervened as residents of Mapleton, Michigan. The only factually permissible consolidation of interests hhs already taken place.

3 From the inception of this case, it has been the Saginaw Valley Intervenors who have taken the laboring oar and have done a substantial portion of the work of preparation for this intervention. For a long period of time the Mapleton Intcr-venors were not in attendance regularly at the hearing. Even after Mc. Like entered his appearance, there were periods when the Mapleton Intervenors did not have counsel present at the hearing. To suggest 1

f that there is an identity of representation between the Saginaw

, 90enso 76f f 6

Valley Intervenors and the Mapleton Interrenorn ic not factually acc u r, :.. .

4 Any consolidation of the Saginaw Valley Intervenorc with the Mapleton Intervenors would prejudice the rights of Saginav.

The Saginaw Valley Intervenors filed environ = ental contentions num-bering 70 pages and covering 190 contentions. The safety matters raised by Gaginaw were different in secpe and content than those of Mapleton.

9 Nothing in this affidavit is meant to sugge:,t that the Mapleton Intervenors have not pursued their interests. It is cnly meant to demonstrate that factually there is no basis for sug-gecting that Mapleton and Saginaw are of the sa=e mind or that their oositions or manner of presenting such positions are identical.

Tnic miE ht be true if the Saginaw Valley Intervenors were permitted to be present but the Mapleton Intervenors were not present, since the uncinan Valley Intervenors appear to have raiced'all of the con-tentions raised by Mapleton.

6. It is true that Dr. Lawrence Holcomb was a consultant to the Saginaw Valley Intervenors in connection with the preparation of the environmental contentions of the Saginaw Valley Intervenors.

He is no longer and has not been for some weeks a consultant to Seginaw. In fact, the Saginaw environ = ental contentions had input from many courecs other than Dr. Holcomb.

7. Mr. Like asked me the name and address of Dr. Holcomb td determinc for himself whether the Mapleton Intervenors wculd like to uce Dr. Holcomb with respect to the contentions and matters

-2

I brought Dr. Holcomb and Mr. Like Luiy wrce F.oing, to ralne. to cne Like'c request and there is no truth at all

.9 t a< r :tt Mr. tio working for the Saginaw l

.croution t, hat Dr. Holcomb is sub si en Telley Intervenors. l 8.

There is no truth to the suggestion that the remova attempt to delay of myself from the hearing was any stratagem or The reason I am not there is as stated in my thece proceedings. ll remains true; that is, enclier letter and affidavit and it sti t the same time.

1 cannot be there and be at the ECCS hearings a Mr. Like informed me that he represents only the 9 dockets.

Mapleton Intervenors and their interests in these ther 10.

My clients made a valid attempt to secure ano They found no one who could attorney to represent their interests. idering the facts that (1) or would represent their interests, cons (2) there was much work there were over 'j,000 pagen of transcript;h could not be rea and preparation done by myself whic i and (3) there are by another attorney in a short period of t me; familiar and not very many attorneys readily available who are knowledgeable in the relevant areas.

11.

Intervenors in these dockets are participants in The ASLB cannot validly require a party to AEC Decket RM-50-1. dockets or in RM-50-1 when choone between participating in these ingc at the (1) the AEC (and its delegates) has scheduled both hear intervenors-participants I same time with full knowledge that the t d by the same attorney; were active in both hearings and represen e ircumstances (2) the intervenors made reasonable attempts neither wereunder forth- thef l counsel bus to seek continuances and other lega I

4 i

. m. '. nr. : cind (i) Lhc AOLD has ruled tnat the intervenora nre, in errect. F.ettin6 their ECCS hearing in these dockets by participating i n .:M 1, thereby requiring their participation there.

12. The motion of Dow Chemical is nothing more than an attempt (a poor one) to try to find some legal basis to support the Board's earlier decision to deny Saginaw Valley Intervenors the right to counsel by virtue of the fact that it scheduled a hearing here wnen I was unavailable end scheduled in another Commission proceeding, one indeed which will take precedence over and affect directly these dockets. The motion by Dcw Chemical is a sham attempt to suggest that the efforts ofsche seven groups which I represent will somehow be represented in my a cence or in the absence of an attorney specifically speaking for them.

13 As some day all will realize, the purpose of tu.

Midland intervention (as any contested hearing) is to attempt to get a true and correct picture of the facts prior to the granting or cenial of a construction permit. It is well known that the pur-pose of some of the participants (and perhaps others) is to get the hearing over as quickly as possible and get on with giving Midland its dual purpose nuclear power plant. Since the real issue is whe-ther the facts will be analyzed, the decision to schedule hearings, so as to prevent the Saginaw Valley Intervenors and their attorney who has worked almost two years on the case from participating in these hearings, is nothing short of a decision in aid of those who wish 1

the hearin:r, over at any cost, even the waiving of the right to counsei. We would have thought that given the ardor, energy and celflessness of the Saginaw Valley Intervenors, the ASL3 would have acne to great pains to permit them to participate, if for no other -

reason but to record their hard work and effort toward seeing that a public hearing is really public. If this Board grants Dew Chemical's motion, it will not change the fact that there is no support for the motion; ritther, it will further deprive the Saginaw Valley Intervenors from their independent right to participate on behalf of the thousands of persons they represent.

14 The history of these proceedings records the following:

(a) Without the Saginaw Valley Intervenors, the hearing in these dockets would have been uncontested on many major issues; (b) Without the Saginaw Valley Intervenors, a construction

,ermit may have issued before the Calvert Cliffs decision and thus without any environmental review; (c) Uithout the Saginaw Valley Intervenors, a construction ucemit would v>ry likely have issued without any contest on ECCS issues; (d) Without the Saginaw Valley Intervenors, an emergency plan would have been adopted which was grossly insupportable; and (a) Without the Saginaw Valley Intervenors, there would have been no conrching independent check on the prehearing agreement:

made among the Regulatory Staff, the Applicant and Dow Chemical, particulacly about safety matters.

Without the Saginaw Valley Intervenors, it is improbable that a full and co=plete hearing will be had. Attempts to consoli-date their interest with the interest of an intervenor who has

idopted a different role in these proceedings fails to recognize L: e prior role of the Saginaw Valley Intervenors and their desire to have participated in these proceedings, a desire which was pre-vented by the very simple fact that this Board failed to recognize:

(1) that there are few attorneys in the United States who opt for and can adequately represent public interest groups; (2) that one of those attorneys who had represented the Sagindw Valley Intervenors for almost two years and was thoroughly familiar with the case, its preparation and manner of presenting the Saginaw interests, was scheduled and participating in the National ECCS Hearings at a time when this Board decided to schedule the hearings in these dockets; and (3) that the decision to hold a hearing was made without any showing of prejudice by Applicant, Dow Chemical or the Regulatory Staff, in the event that the hearing was delayed until subsequent to the ECCS hearings.

15 Granting the motion of Dow Chemical will severely prejudice Saginaw Valley Nuclear Study Group, Sierra Club, United Auto Workers of America International, Trout Unlimited, Michigan Chapter, West Michigan Environmental Action Council, Michigan Citizens for a Better Environment, and University of Michigan

ve e .cen t,: L *

. ", :;oc io t,y, in that they would oc denied an indepen-

-!cnt right to pursue their broader interests in their own manner and with counsel of their choice.

lo. Denial of Dow's motion will not adversely affect any other participant's rights in these proceedings. Whether any other participant's rights have been adversely affected is solely

> ha.ct,lon ol' the validity vel non of the Doard'n earlier decision to nchedule a hearing when seven of the intervenors could not participate with their counsel, a decision we have earlier charac-terized an a denial of due process, and based on a lack of recogni-tion of the real issues which face the Atomic Energy Commission, the nuclear community and this Board. The time has come (it is long past) when the public, not the private interests, is to be i,4 von a fal.r shake in AEC proceedingc, particularly when it hac not been the private interests which have unearthed the problems of nuclear safety and environmental protection.

17. The granting of Dow's motion, and in fact its denial without a strong statement as to the role, contribution and effort made by the Saginaw Valley Intervenors, a role they wish to continue, would do an injustice to the public's right to par ticipate.

18 Intervenors submitted a verified statement of their pre,iudice in cupport of their earlier motion for a continuance.

!o party opposing the motion for a continuance submitted any facts to nupport prejudice on their part if the motion were granted and did not dispute by competent testimony or affidavit the facts sub-mitted by Intervenors, even though such opposing parties had an onportunity to do so at the prehearing conference on April 28, 1972.

Ince the Bon ed, therefore, in its denial of our motion, did not have any facts other than those submitted by the Saginaw Grcup, the decision to hold a hearing was in violation of 5 U.S.c. section 5$4(b) which provides, inter alia, that:

~

"In fixing the tine and place of hearing, due rec:ird shall be had for .the convenience and necon::ity of the parties or their representative."

In fact no regard was given to the convenience and necessity cf the Saginaw Valley Intervenors, cc=prising seven of the eleven parties to these dockets. Moreover, *he Board even failed to decide prior to tne hearing the Saginaw Valley Intervenors' written motion filed on Xay 8,1972 and requested to be filed by the Board at tennne ri p t p. 5?'32. Finally, no certification of the Board'c decision was made, despite the novelty of the issue and the obvious cc.d crucial i=portance of the decision vis-a-vis the rights of the Saginaw Valley Intervencrs.

dAON .j h

' Ny on M. Cnerry' Gubccribed and sworn to before se thic 24th day of May, 1972.

l44'  ?

f . 4l~

.~.otary Puolic