ML19331B200

Responds to Saginaw Intervenors' 720415 Ltr.Submits That Intervenors' Counsel Disregards Obligation to Aslb,Client & Public Interest.Aslb Schedule Mods Not Justified.Certificate of Svc Encl

ML19331B200
Person / Time
Site:	Midland
Issue date:	04/24/1972
From:	Lowenstein R LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Murphy A Atomic Safety and Licensing Board Panel
References
NUDOCS 8007280789
Download: ML19331B200 (11)

Text

LAW OFriCE S LOWENSTEIN, NEWM AN & RErs 1800 CONN ECTICUT AVE NU E, N. W.

WASHINGTON, O. C. 20036

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April 24, 1972 Arthur W. Murphy, Esq., Chairman Atomic Safety and Licensing Board Columbia University School of Law 435 West ll6th Street, Box 38 New York, New York 10027 Re: Consumers Power Company (Midland Plant Units'l and'2)' - Docket Nos. 50-329, 50-330

Dear Mr. Chairman:

This letter is -in response to the letter dated April 15, 1972, from the attorney for Saginaw intervenors.

The requests set forth in his letter represent wanton disregard of counsel's obligation to this Board, to his client and to the public interest. All parties and their counsel have been on notice since last summer of the Board's plan to proceed with the hearing on environmental matters as promptly as possible after issuance of the AEC staff final detailed environ-mental statement. No justification is set forth in counsel's letter for modification of the schedule established in the Board's orders.

Mr. Cherry's letter does not fairly set forth the history of this proceeding or of his own persistent and wilful failure to seek discovery, or to file statements of his contentions and positions, in accordance with the Commission's rules and the orders of this Board.

Although counsel's letter refers to an attached motion, no such motion was appended to the copy of the letter that we received. Nevertheless, it is evident from his letter that the principal relief sought by Mr. Cherry consists of (1) a new opportunity for extensive discovery and (2) an indefinite post-ponement of the hearing on environmental matters. We shall address each of these matters in turn.

soon so 7 8 7

i e

LOWENSTEIN, NEWMAN & REIS

. Arthur W. Murphy, Esq., Chairman April 24, 1972 I.

The Board in its order of August 26, 1971, ordered that all parties begin discovery, concerning issues arising under NEPA, no later than September 30, 1971. The Board also requested that all opposing intervenors file a preliminary statement of their views on environmental questions by September 30, 1971. The. Board said':

C. Environmental Issues Pending the further steps contemplated by the August 4, 1971, Statement of the Atomic Energy Com- -3 mission, the Board will not attempt to draw up a schedule for the environmental issues. The Board is concerned, however, lest delay in completion of discovery unnecessarily postpone the hearing and, accordingly, it is ordered that all parties serve and file all motions for discovery concerning issues arising under National Environmental Policy Act ,

permitted under 10 CFR S2.740, 2.741, and 2.744 by no later than September 30, 1971..

In addition, the Board hereby requests that all opposing intervenors file.by September 30, 1971, a preliminary statement of their views on environmental questions. Such statements should cover at least the following:

1. Identil!y those aspects of the environment, e.g.,.

air quality, water quality, land use, etc. which they presently believe would be adversely affected-by the proposed plant and specify in detail the nature'of each adverse effect as they presently perceive it.

2. The alternatives to the proposed plant which-should be considered by the Board and the reasons, in detail, why they consider any of those alterna-tives to be' preferable to the proposed plant.

3. Identify the factors which'should be considered by the Board in its " risk-benefit" analysis with particular attention to the importance to be attached by the Board to the effect of the decision. (emphasis added)

Lowzxsrrrx, NEWMAN & REIs Arthur W. Murphy, Esq., Chairman April 24, 1972 Saginaw Intervenors failed to abide by the Board's order in good faith. Instead, they merely filed a broad, vague catch-all request for. documents; 1/ a set of defective and overly broad

-interrogatories 2/ and grossly inadequate, preliminary statement of environmental matters. 3/ No showing of " good cause" for their discovery requests, as required by the Commission's rules of practice, was made or even attempted. In its " Order With Respect To Various Motions Filed In This Proceeding," dated December 22, 1971, die Board dealt with the Saginaw Intervenors' Motions, in pertinent part, as follows:

(e) Motion IX is denied as burdensome on its face without prejudice to submission of reasonable requests for documents as provided under Para-graph 5 above.

(f) Motion X is denied (except as to those Inter-rogatories which the parties have agreed to answer

-without prejudice to the filing of an appropriate set of interrogatories in accordance with Para-graph 5 above. The motion wholly fails to sat-isfy the requirement of good cause; although it states that these interrogatories (as to which objections were previously sustained) have been reviewed and found "directly relevant to environ-mental matters," many of them seem clearly, on their face, to involve radiological or irrelevant issues. To the extent that interrogatories are

-1/ Motion IX contained in a document entitled " Motions of Saginaw Valley, et al. , Intervenors With Respect to Environ-mental Matters , Emergency Core Cooling System Matters, and the Board's Order of August 26, 1971", filed September 30, 1971.

-2/ Motions X and XI, contained in a document entitled " Motions of Saginaw Valley, et al., Intervenors With Respect to Environmental Matters, Emergency Core Cooling System Matters, and the Board's Order of August 26, 1971"., filed September 30, 1971.

3/ Exhibit B to a document entitled " Motions of Saginaw Valley, et al. , Intervenors With Respect to Environmental Matters ,

Emergency Core Cooling System Matters, and the Board's Order of August.26, 1971", filed September 30, 1971.

i LOWENSTEIN, NEWM AN & REIs Arthur W. Murphy, Esq., Chairman April 24, 1972 addressed to the Staff their Motion makes no attempt to show why the reasons given by the Board in-its June 1, 1971, rulings are not still valid.

(g) Motion XI is denied without prejudice to renewal at appropriate times under Para--

graph 5 above. ,

Notwithstanding Intervenors' lack of compliance with the Board's August 26 order, and with applicable requirements of the AEC's rules of practice concerning motions for the production of documents and interrogatcries (Secs. 2.740 and 2. 741), Applicant agreed, at the November 23, 1971 conference of Counsel, to make certain documents available to Saginaw Intervenors in Jackson on an informal basis. (Tr. 5046-48).

MR. LOWENSTEIN: Mr. Chairman, there are certain requests for production of documents that have been made by the parties of the Applicants to which we have

not objected. The categories of documents which they have requested we make available to them for inspection

, will be available to them within those categories--

excuse me--within the categories, within those categories to which_we have not objected, will be available begin-ning December 5th.

Now, what I would request is that this be done on an orderly basis, so that we don't have a whole series of opposition intervenors, attorneys, coming out con-secutively over a long period of time, it does involve a burden to us.

We would request --

MR. CHERRY; Why don't you reproduce them and send them to me..

MR. LOWENSTEIN: There are too many.

We will do it the way we did last time, you come out and let us know which ones you want and we will do it the way we did last time.

MR. CHERRY: I would like the Board to resolve my motion for production of documents so I won't have to make two trips. That involves some decisions is (sic) what is in issue or not.'

I don't care how you want to io it, if you want me to make two trips I can.

1

'LOWENSTEIN, NEWMAN & RErs Arthur W. Murphy, Esq., Chairman April 24, 1972 CHAIRMAN MURPHY: Can I, on the basis of the papers which I now have, do I have every-thing I need?

MR. LOWENSTEIN: I believe so.

MR. CHERRY: Unless the Board wants more information from the parties. We have made a motion and they have responded.

CHAIRMAN MURPHY: Now, so far as are you going to give them a list of what is available?

MR. LOWENSTEIN: We 9ill do it as last time.

We can make the arrangements for time informally by telephone as we did before. Our documents will be made available at the office of Consumers Power Company in Jackson, Michigan, and we will set them aside in a room, there are a lot of them, for them to examine.

MR. CHERRY: I assume you will produce them by category?

MR. LOWENSTEIN: I think last time we did.

MR. RESTRICK: I think it was easier last time.

This time we may be dealing with documents spread over the company. And we will try to.

In addition, Saginaw Intervenors were put on notice by the Board at the November 23 conference that the Board intended to move ahead with the environmental matters expeditiously. The Board requested that Dow Chemical draft a proposed order including dates for discovery on environmental matters. (Tr. 4924).

Counsel for the Saginaw Intervenors indicated that deadline dates set in this proceeding, in advance, would not create a problem.

He said:

MR. CHERRY: Mr. Chairman, any time a date is set in advance, 30 days or something, I think anybody would work around that date. The only problem I had is that it was set without any inputs at all. So I don't think we will have that kind of problem if it is set a couple or three weeks in advance.

In its order of December 22, 1971, the Board again ordered the Saginaw Intervenors to begin discovery and to begin to particu-

. larize environmental contentions in order that those contentions

- could be disposed of "at the earliest reasonable time." The Board said:

O LOWENSTEIN, NEWMAN & REIS Arthur W. Murphy, Esq., Chairman April 24, 1972

5. Environmental Matters. The following schedule for dealing with environmental procedural matters is designed torencourage all parties to exercise their best efforts in good faith to refine the contested environmental issues in this proceeding, with a view towards disposing of those which are ripe for hearing or other action at the earliest reasonable time.

The Board appreciates that any schedule fixed at this time, before the draft and final environmental state-ments are available, and when important and difficult questions of law are still undecided, must necessarily be tentative and subject to change when the facts and guidelines are known. It anticipates that applica-tions for extensions of time or other relief may be necessary, and does not propose to administer sanc-tions so long as the parties in fact do exercise their best efforts in good faith.

At the same time, however, the Board recognizes the many differences of view among the parties in this vigorously contested adversary litigation. It intends to keep tight continuing control ever these proceed-ings, and will not tolerate ex pai e action by any party in violation of this schedule 7 Once again, compliance with the Board's order on the part of Intervenors was not forthcoming. As the Board has noted in its

" Order with Respect to Environmental Issues," dated March 27, 1972:

Opposing intervenors have not, with minor exceptions, paid attention to the Board's order that a good faith effort be made to make discovery requests as the environmental reports were filed. For the Board to allow, as Saginaw now requested, discovery to begin 14 days after the entry of this order would be to permit intervenors' intransigence to accomplish what their arguments did not.

The March 27 order also required Saginaw Interrenors to file environmental contentions on or^before April 15, 1972. As their letter of April 15, 1972 shows, Intervenors have again chosen to disregard this order.

LdwExsTEIN. NEWM AN & REIS Arthur W. Murphy, Esq., Chairman April 24, 1972 It has now been more- than eight months since Saginaw Intervenors were first ordered to commence discovery on environ-mental matters. They have consistently refused to make reason-able requests for discovery or to inform applicant or the staff in any reasonable detail of their concerns or of the basis for such concerns. The present lack of preparation on the part of the Saginaw intervenors results from their refusal to participate in accordance with Orders of the Board and the rules and regula-tions of the Commission and not, as alleged in their letter of April 15, 1972, from the refusal of the staff and the applicant to permit them to participate.

II.

When this case began, counsel for Saginaw intervenors for many months argued that his participation in the Palisades proceeding must take precedence and that the Midland proceeding would have to wait its turn. This attitude on his part resulted in his delay in filing interrogatories for several months, with resultant delay in these proceedings. As recently as this past January, 1972, a prehearing conference had to be postponed because Mr. Cherry was involved in Point Beach, and Midland again would have to take a back seat. (Letter, dated December 22, 1971, from Chairman Murphy to Counsel of record postponing the Meeting of Counsel scheduled for January 5, 1972.) Now we hear that Mr.

Cherry's participation at the ECCS proceeding is too important for hins o involve himself at Midland.

On January 6, 1972, the Board in this proceeding issued an order in which it said:

We recognize that Counsel for intervenors are spread thinly over a number of cases; we have attempted consistently to' schedule hearings and meetings of the Board as to time and place with that consideration in mind. (Since opposing intervenors' Counsel are located in Saginaw, Michigan; Chicago, Illinois; Washington, D.C.

ar.d Suf folk County, N.Y. it is hard to accommo-date everyone at once.) At times we have done so to the inconvenience of the Board and of other Counsel. There are limits to the con-cessions which can properly be made. Unlike law suits the consequences of delay and postpone-ment of this type of proceeding are potentially very serious. We will continue to try to acconmo-date hearing dates within reason but we cannot in

l.dWENSTEIN, NEWM AN & REIS Arthur-W. Murphy, Esq., Chairman April 24, 1972 good conscience regard participation in other proceedings to be a justification for not meet-ing deadlines. If Counsel are to continue to participate in more than one case at a time they simply must be prepared to make arrange-ments for handling the case load. (emphasis added)

In addition, the last paragraph of the Supplemental Notice of Hearing in the ECCS rule making proceeding was brought to the atte lion of the Board at.the meeting of Counsel held on January 19, 1972. (Tr. 5118). That paragraph reads as follows:

' Notice should also be taken that the conduct t of a rulemaking hearing on the subject matter of this notice will not affect the orderly resolution, under the Commission's existing regulations, of the matter of emergency core cooling, in hearings on applications for light water cooled power reactors per. ding before Atomic Safety and Licensing Boards.'

Counsel for Saginaw intervenors has acknowledged on the record that the Midland proceeding should continue with consideration of environmental matters although the ECCS rule making proceeding has not been completed. Thus, the following exchange took place at the meeting of counsel on January 19:

MR. KARTALIA: There is one argument and that is the supplemental notice. The Commission has indicated that-these proceedings are.not to be delayed on account of the rule making.

MR. CHERRY: They won't be. We will go into environmental matters. That could take 6 months or a year. (Tr. 5148)

The Board in the Pilgrim proceeding, in the matter of Bosto. Edison Company, Pilgrim Nuclear Station, AEC Docket No.

50-293, specifically held, on March 17, 1972, that participa-tion in the ECCS rule making is not a valid grounds for post-ponement of other proceedings. The Board said:

The Board rejects the Intervenors' conten-tion of February 17 that their engagement in current rulemaking hearings precludes effective participation in this proceeding at this time.

Counsel for Intervenors herein acknowledged on the record of the rulemaking proceeding that,

as I understand the meaning of that rule,

~_ .

a LowENSTEIN, NEW>I AN & REIS Arthur W. Murphy, Esq., Chairman April 24, 1972 this hearing will not hold up the licensing of any light-water-power reactors...'* The Board agrees with Counsel's remarks, from which it-follows that Intervenors' engagement in current rulemaking hearings is not a valid reason to postpone indefinitely' hearings that otherwise properly should take place in this proceeding.

Intervenors should make arrangements to be able to continue participation in this pro-ceeding. The schedule herein provides sufficient time for this purpose.

• This comment was made in the context of an oPjec-tion to an Order from the Commission dated rebruary 23, 1972, to the effect that there is no overriding neces-sity to complete the rulemaking hearings within a de-finite period of time. Counsel to support his posi-tion cited the concluding paragraph of the Commissier.'s Supplemental Notice of Hearing dated January.8, 1972, giving it the interpretation noted in the remarks found in the record. (See page 4280 of the transcript of Docket No. RM-50-1, Acceptance Criteria for Emer-gency Core Cooling Systems for Light-Water-Cooled Nuclear Power Reactors.)4/

Similarly, in the matter of Wisconsin Electric Power Company. and Wisconsin Michigan Power Company, Point Beach Nuclear Plant, Unit 2, AEC Docket No. 50-301, Mr. Cherry requested that the Board postpone the hearing in the Point Beach proceeding on the ground of his par-ticipation in the ECCS rule making proceeding. Nevertheless, the hearing commenced on March 21, 1972, as scheduled previously.

In his letter of April 15, Mr. Cherry states that if this were a case of an attorney who has other work which prevents him from participating in this proceeding, then his motion should be denied on the basis that he should not take on too much work. But that is precisely the case here. Counsel should have known from the outset that he could not hope to actively participate in both

/ the ECCS proceeding and the Midland proceeding.

4/ [" Memorandum and Order Considering Applicant's Motion dated February 11, 1972, for Pre-hearing Conference and Filing of Interrogatories," pp. 3-4]

a LOWENSTEIN, NEW>I AN & REIS Arthur W. Murphy, Esq., Chairman April 24, 1972 No reason is set forth in Mr. Cherry's letter to justify his assumption of responsibilities in the ECCS proceeding inconsistently with his prior and paramount responsibilities in the Midland case. No reason is set forth why Mr. Thomas B.

Arnold or Mr. Anthony Z. Roisman or Mr. Albert Butzel, all of whom have appeared for intervenors in the ECCS rule making proceeding, or any one of many other attorneys, should not have assumed the responsibilities in the ECCS proceeding which Mr.

Cherry has chosen to undertake. Contrary to the suggestion in Mr. Cherry's letter of April 15, 1972 that Mr. Roisman is un-available because of participation in the effluent rule making proceeding, we are advised that Mr. Roisman only occasionally attends the effluent proceeding. Moreover, no reason is set forth why Mr. Like and Mr. Ginster cannot represent all inter-venors in Midland on a consolidated basis.

Respectfully, Lowenstein, Newman & Reis Attorneys for Applicant Consumers Power Company Enclosure RL/amw cc: Dr. Clark Goodman Dr. David B. Hall William J. Ginster, Esq.

Anthony Z. Roisman, Esq.

Mr. Stanley T. Robinson James A. Kendall, Esq.

David E. Kartalia, Esq.

Milton R. Wessel, Esq.

James N. O'Connor, Esq.

Myron M. Cherry, Esq.

Irving Like, Esq. ,

Atomic Safety and Licensing Board Panel Hon. William H. Ward

4 UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of )

Consumers Power Company )

Application for Reactor Construction ) Docket No. 50-329 Permit and Operating License ) 50-330 CERTIFICATE OF SERVICE I. hereby certify that copies of Applicant's letter to Chairman Arthur W. Murphy dated April 24, 1972 have been served on the following by deposit in the United States mail, first class, this 25th day of April, 1972:

Arthur W. Murphy, Esq., Chairman David E. Kartalia, Esq.

Atomic Safety and Licensing-Board U.S. Atomic Energy Commission Columbia University School of Law Washington, D.C. 20545 Box 38,~435 West ll6th Street New York, New York 10027 Milton R. Wessel, Esq.

Kaye, Scholer, Fierman, Hays Dr. Clark Goodman and Handler Professor of Physics 425 Park Avenue University of Houston New York, New York -10022 3801 Cullen Boulevard Houston, Texas 77004 James N. O'Connor, Esq.

The Dow Chemical Company Dr. David B. Hall 2030 Dow Center Los Alamos Scientific Laboratory Midland, Michigan 48640 P. O. Box 1663 Los Alamos, New Mexico 87544 Myron M. Cherry, Esq. .(2)

Suite 1005, 109 N. Dearborn St.

William J. Ginster, Esq. Chicago, Illinois 60602 Suite 4, Merrill Building Saginaw, Pdchigan 48602 Irving Like, Esq.

Reilly, Like and Schneider Anthony Z. Roisman, Esq. 200 West Main Berlin, Roisman, and Kessler Babylon, New York 11702 1910 N. Street, N.W.

Washington, D.C. 2003v Atomic Safety and Licensing Board Panel Mr. Stanley T. Robinson (20) U.S. Atomic Energy Commission Chief , Public Proceedings Branch Washington, D.C. 20545 Of fice of the Secretary of the Commission Hon. William H. Wa.rd U.S. Atomic Energy Commission Assistant Attorney General Washington,.D.C. 20545 State of Kansas Topeka, Kansas 66612 James A. Kendall, Esq.

135 N. Saginaw Road ,

Midland, Michigan 48640 -. -

Robert Lowenstein Attorney Consumers Power Company