ML19338C146
| ML19338C146 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 07/09/1971 |
| From: | DOW CHEMICAL CO., KAYE, SCHOLER, FIERMAN, HAYS & HANDLER |
| To: | |
| References | |
| NUDOCS 8008050596 | |
| Download: ML19338C146 (10) | |
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- . UNITED STATES OF AMERICA ATOMIC,' ENERGY COMMISSION In the Matter:of -) .
. ) Docket No 50-329,,s CONSUMERS' POWER COMPANY -) -
) 50-330 Midland Flant, Units l'and.2 )
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-DOW SUMMAP.Y OF RECORD WITH REGARD TO MAPLETON INTERVENORS' DELAY L The' Hearing Board has d19ected that argument with respect to the. submission of evidence by the Mapleton Intervenoran be heard -Friday, July 9,1971. This memorandum isf submitted. to briefly summarize the relevant record and the applicable law.
The conduct of the Mapleton-Intervenors to-this point l:
has been characterized by failure to adhere-to unambiguous orders of:the Hearing Board. This proceeding is now in'its eighthLmonth, and the numb'er of transcript pages will'have exceeded'three-thousand by the time of argument. Nonetheless,'the Mapleton II.tervenors have j outlined their.co'ntentions in only.the most general and unconfining fashion _and identified but two witnesses.
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Indeed, on;the~' eve ofzargument,.Dow received informa-- q
<tionfthatfi t was the Mapleton Intervenors' intention to
+. either'substitutezcr: add new counsel, inevitabl'y.thereby.
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Lintroducing further' delay.-
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It-is Dow's-contention that the Mapleton.Intervenors have.had~more than a fair. opportunity to present their case; that unless clear and positive mandates'are issued to them, accompanied by orders of preclusion _for failure
'to comply, their future conduct will be -no different than their past; that any additional or substitute counsel should be permitted to appear only upon the identical ground rules applicable to present counsel *; and that the Board.has
'more than~ ample. power to apply the nececcary sanctions.
I. Summary-of. Pre-Hearing Record with Regard to Mapleton Intervenors November. 12, 1970 - No Petition to Intervene was filed on l
L behalf of the Mapleton_Intervenors.although this was the last day fixed.by the Notice of Hearing.
November- 17, 1970'- The Mapleton residents did not petition to intervene.. .
December 1, 1970 - Application-for late intervention-granted, alt'aough no showingLof good cause was made (Tr.,140-146),_ anduthey'were permitted access to a copy of .
thejtranscript' free.of charge (Tr. 415).
- - Because proposed new counsel is reported as-having-stated E
in connection with the Shoreham hearings'that he viewed his role as- public education rather than. presentation of contention, L lthe' Board should especially~ apply'AEC~ Regulations Section'2 730(d) precluding; oral' argument .-in the absence .of leave -to argue.
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. i, December 8, 1970 - A formal,. written Order or the-Board
.provided ini part as follows :
- 2. By.the. dates.specified below the following briefs
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andLotherzdocuments. relating to issues of law are to.
be ser.ved:;
'(a) Dec. 11, 1970. A statement setting forth the'
- 1egal. issues _which are to be-raised on behalf of the.Mapleton residents.
3.. On ;the ' dates specified below the following documents with respect to factual issues in this' proceeding are to be -served:-
(b) Decemb'er 15,_1970. A preliminary list of witnesses.each_ party proposes to utilize with the name and address of each witness, -
his principal occupation, and a'brief statement of the scope of the testimony to be offered. -
Jhauary 21', 1971 -- The Mapleton Intervenors ' failttre to comply with the-Board's Orders were considered as follows: l CHAIRMAN MURPHY: .But you have not filed any paper. o MR. GINSTER: Yes, sir. I reaffirm my contentions
- as specified in the petition for leave to intervene.
And~further, as I understand it, sir, the Atomic
-Energy Commission-has_ changed its position in regard toithe impact of the National Environmental Policy Act1of:L1969 I am told that that change of position is in the Federal Register of December 3 or 4. And so I would ask at . least 10 additional days.* And I have. raised-the environmental issue _1n my petition to intervene.
And4also I have raised the legal issue of claimed involvement of.a nuisance concept. -Therefore, sir, I.would ask additionalEtime to obtain the Federal Register: publication;and to file a more specific--
.I take-the' position that my original petition' for' leave nto, intervene was specific-enough, but just in
' case'someone disagrees, ,I would ask 10 additional Edg3_s.,:(Pages 470-471)
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iCHAIRMAN--MURPHY: ***I would like. at some time, cer-
- tainly_~byfthe time you
- file yot:r triefs with respect
-to the< environmental issues.ar. chev arise in' con--
- nection withJthe statute
- and~1he AEC regulations, CUnderlining added.throughout this memorandum o .
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.that you.tell me more.than you have now about the nuisance aspects.- I think I do not understand them:very wel1~' .
MR. GINSTER:- Yes, sir. (Page 471)
CHAIRMAN. MURPHY:-iH*Under 2(a), Mr. Ginster, there is a notation that a. statement: setting forth the legal
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issues to'be raised-on behalf.of the'Mapleton Residents is due.- What happened'to.that?
MR. GINSTER:.. Well, sir, I take the position respectfully;that the petition for leave to intervene is adequate and sufficient notice'of the legal
. exception contentions of.of.the thethird Mapleton Residents substantive with the p(ossible contention, c).
However, as'I'have indicated, whatever is required, I willifurnish more specific contentions within 10-hays. (Pages 544-545)
CHAIRMAN: iHWBut the-latter part of it, "under~all other applicable existing federal and/or state statutes including the House. Bill No.3055", nt cetera, I think'I do need a specification of what your con-tentions are under those acts so I will know if there is anything.we should be doing prior to the hearing.
So'if you will at-least outline specifically in~ such
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a way that it would be.possible to rule on the questions. It seems to me it is not at the present-time those' issues which do not come within the area of- -
the National Environmental Policy Act and the regula-tions thereunder.~
I-don't think there is a need to do.it within the next few days.. I think.within the next 20 days would be-
.certainly. time enough. (Pagers 545-546)
CHAIRMAN. MURPHY: *** Item -3 we have a list of documents in'the possession of each intervenor relevant to the issues of -- Mr..; Cherry ~has responded to that by sayin's in; essence heLhas the PSAR,-and that'is.about all.
I su'ggest, Mr.LGinster, you are probably in the same position.
MR.:;GINSTER:. ;YesB sir.
CHAIRMAN MURPHY: And 11 you'would just do-'something-fofRtnat kind,'it"would satisfy.my filing system.
'MR. GINSTER:"'Might-I have120. days?' L(Page-546) 3- ,
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'q lMRM GINSTER:i:Might1;I.say3one thing;;Mr. Chairman?;
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cI have:beeniconsulting;withwa2 technical' expert in .
l Minnesota',ctnd I :toof for Land'on behalf of my clients -
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> * - ..would3ask for 'an' extension 1of thec January -7. deadline s
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- to3 submittinterrogatoriess to Consumers Power: Company a
~ and(veryipossibly:DowlChemical..-
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- From/my: experience'in,the-state _~ courts at 1_ east.. ,,
xinterrogatories eliminateDissues.and cut down1 ultimate 1
. : hearing time. /And.I-fullyJunderstand'here.that.every - .
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- thingimustcproceed-with all'due dispatch, so I-:too-would. 1 recuestisome kind ofan extension.- (Page 600).
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Ma' 2,.rch~3,-J1971;- The:. Board's formallOrder:provided.in part-i 3 as ' follows : 1
?2.w Noflaiterithan: April il5, .19711the Saginaw intervenors Land theTAeschliman intervenors'shall serve-answers to
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' the iinterrogatories' propounded by?Armlicant. . Provided I .
thatiif.by April 1,.1971.the Aesch11 man-intervenors-l shallfserveLin writing an. adequate, detailed statement-6 of the basesLof~their-legal contentions the Board may.
exctise specific responses to the interrogatories. .In ~
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'any event, obj ectionsyby all,.intervenors to such .
(7 . interrogatories shall be served;by; April 1p 1971.. -l
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- 3 . LBynMay 1, s1971, intervenors will submit all of their l t ~, direct evidence in writing-in support:of-their contentions j
- sincluding; written sworn 1 testimony and copies of docu-
- 4 imentary evidence if any. +
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- =AprilE2,^1971 . Counsel for:the-Mapleton Intervenors was'not
- present,1requiringfpostponement1of ce'tain mat,ters ' (see Tr. 676) .
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4 :m iMay 1/197E The Mapleton'Intervenors-admitted their default- .
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' asl follows':f jcHAIRMAN_\ MURPHY : ;Mr.JGinster"has admitted ito being;in'
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y( q idefaultland;he says.h_enwill-remedy his default. When?: ,
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I 15 .4 ^ LMRUGINS.TER':, w iWithin -the; timef that ,has- been ragreed ' upon.- :
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' 7& Ec- , IMR.~ GINSTERE ; Within Ethe' twoxweeks --
E that they1are . dis-4 ecus' sing,isir,iif=I~could have-:two' weeks,-the'two weeks.
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- CHAf?. MAN MURPHY: Let me just see if I understand what
' the1present situation.is.
You were, as I recall it, to prepare a. statement of your contentions.
MR. GINSTER:. Yes, sir.
CHAIRMAN MURPHY: What else do you have outstanding?
. MR.-lGINSTER: .There will be a statement of contentions, fact'ual issues and legal issues. There would bet if-written testimony is re' quired, there.would possibly be .
the namesJof' experts-to.be furnished or an expert, or witnesses and their quallrications.
That's.what would be--
CHAIRMAN MURPHY: All right. I think that time schedule is satisfactory. (Pages 1218-1219)
MR. GINSTER:' Mr. Chairman, I intend to probably participate very fully in this matter as a trial . ;aunsel for the Mapleton Residents who have a private interest involved here as distinguished from -- as well as members of the public that have property rights involved here, claimed rights.very vitally affecting their. health and psychological well-being. .
I am willing to state what their contentions'are -- or our contentions are, legally anC conceptually; with the
- exception of the objections -- or reserving the right to object to some of the interrogatories submitted, I am willing to participate all the way, and I intend to do so.
CHAIRMAN MURPHY: -Well, your' willingness and ours may not always be co-extensive. I do think it is incumbent.upon you sif you do intend to , participate c, tensively -that .you
- set out in?quite detailed. fashion whac your contentions are and'I wouldibe less than candid if I didn't say that
'I intend!to adopt a policy against "epetitive cross--
- examination,.and_I:would- . Justigiven the realities of the: situation, I would conceive your role.as being.largely
- supplemental.to Mr.= Cherry's and particularly in those areas in which the priv' ate - rights of your; clients are involved.-
~ MR.'GINSTER: .Yes, -I understand that , 'that you don' t zwantbredundancy.; Therefis:no problem.there. (Pages 1220-1221).
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- - Mayil'8."1971L- Thel Board'siformal. Order provided in part as
' follows:- -
-5 In its order date'd March 3,<1971, the Board ordered thatvopposing intervenors file alllor'their direct ~ evidence
'in-support of their contentions in. writing,-including written sworn testimony and- copies of documentary evidence, if.any, insadvance of the hearing.. In view of the delay which.hassbeen occasioned.by. the dispute with respect to
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-the" interrogatories addressed to the AEC staff, the Board willinotLrequires intervenors to file their direct evidence-on . the issue of .the safety of .these: reactors. However, the-Board-believes that'the principle.of advance. submission by all parties'is; Bound and consistent with the'requiremente of fairness and the Administrative- Procedure Act and that there is-no:similar justification for intervenors not t filing their direct evidence, if any,-on the following issues, in advance of, the hearing and they are. hereby directed to do:so by June 7, 1971:
-(a) -Whether,the applicant is technically qualified
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to design and.donstruct the proposed facility.
(b) :Whether the. applicant is_ financially qualified to design and construct the-proposed facility.
(c) Whether the' issuance of a construction permit will be inimical'to the common defense or security.
The written evidence. furnished by intervenors shall include identification of the individual or individuals who will constitute intervenors' witness or witnesses with regard to~each subject matter covered by the evidence.
' June 7. 1971 - -
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1MR. LOWENSTEIN:' For the record,- Mr. Ginster is : not here.
'~ 'MR. ~ CHERRY:For the record,.his client was he're, Mr'. Marshall,.
I.-think11t's only;fairLto-say.--
CHAIRMANJMURPHY:: ,LetJme tell you what: Mr.. Marshall told'
.me,.to:the:extentTthat~I-understand it.- Mr. Ginster
- apparently-.has1brisfspapers and!various other documents; '
' which,he wasagoing~to.have~' served on us by Mr. Marshall (today,Lon thelBoard an'd1alli~ofsthe. parties. They got into{UnitedJAirTLines:atisome~ point and,1as.far as-anybody.
,knows, ?they .are now;at 'the; bridge between Manhattan 'and-
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=LaGuardia orEKennedy Airport.
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~I don't know-what.is-in'that. 'He did say to me thatLhe had'two:professionalt witnesses whom he was going to call.
~0ne of them is-Mr.'Gadler, who may have~ appeared in some
.otherfhearing, who~had some. correspondence with the Board aboutL hisispecial appearance. .I don't.know the name of the'other:one. T. told.him only that he had better read
, the PSAR and.that.was all that I said..
I can't:say!any more than'that. When we get the papers 3 the-Board t will respond in some way. If any of you. have any- particular problems- that you want to raise about them,
-Itthink Mr.-Ginster has - I, at.least, have assumed;his participation would be': greater than that of some of the intervenors but =less .than' that of Mr. Cherry,_ and let 's just L see.: If we f5el, on looking at what he proposes to-do',Lthat any of'the things that he has not done up until now prejudice us, we will deal with it at the time.
Let's'not try to examine that until we see what it is he.
proposes to do. '(Pages 1451-1452).
(At the hearing on Ju,1y 8, the Mapleton Intervenors finally
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} identified two witnesses , but 14r. Gadler had apparently. been withdrawn [Tr. 2684-2685]).
I The Hearing; reconvened on a. day to day basis beginning June 21, 1971. Thereafter, Chief Counsel for the Mapleton Intervenors present only from-time to' time (see e.g., Tr. 1991). Over ,
4 objection,-the Board extended the Mapleton Intervenors' time-to make their. offer of proof and specify their' witnesses . to Friday, July.9,1(see e.g., Tr. 2684-2685, 2691).-
II. The' Board 'has power to' enter such ' order as justice requires.-
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- The: Atomic; Energy Commission's' Regulations ~ empower an Atomic
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o Safe :yf and LLicensing Board - to regulate fully the conduct. of
.a:hearingiand,the1 conduct1 of.the? parties, including their 1
1 ! counsel ~. 1AECfRegulationsiSection 2 718 provides;in-part as. ]
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'follows: I
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)(Thb: Board may).
(e) Regulate.the course of the hearing and the conduct
-of the participants.
(f) Dispose.of; procedural requests or similar matters.
-(l) :Take'any'other' action consistent'with the'Act, this chapter, and~ sections 551-558 of title 5 of the United States Code.
AEC Regulations?Section'2 713 (c) provides.as follows:
(c) l Suspension of Attorneys. A presiding officer.may,
- by orTer for.. good cause stated on the record, . suspend (n?
bar from participationLin a proceeding any attorney who engages in-dilatory tactics or disorderly.or contemptuous conduct in the course of a proceeding. An. appeal from-such an. order =by'a presiding officer may be taken to the Commission.-
, We' believe the Board,. should hear arguments by the Mapleton Intervenors on the six contentions specifie'd on July 7
. (Tr . 2664.5) and the one added on July 8 (Tr. 2821 ). Based i upon the arguments, it should direct that evidence be received
-by witnesses named,beginning July 14, and'. continuing from day to day thereafter..until completed; or exclude evidence with respect to the -contention; or direct that an offer of proof in the precisc form required by Section 2 743(ey be submitted on-or<before Monday, JulyL12, 1971. The Board should direct further o thatithe Mapleton-Intervenors be' precluded from the submission
- of further evidence with respect to any: matter in default. 1 CONCLUSION- !
s LNo ' one need feel :sorry for- the Mapleton Invervenors.
'J lDespiteLthe allegations which' led.to their-access to a free
- transc~ipt (Tr. 415)1and
- otherfspecial considerations -(e.g.,
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Tr..676),[theyJobviously are well financed and more than competent.to' handle their own. They-have two separate trial counsel' appearing and speaking on their behalf, are assisted by.an; expert in regular _ attendance, and have now indicated
- an intention.to. retain the services of even another counsel.
They shduld be required to work nights and week-ends in the same fashion as the-Board and other parties, and should not be permitted to-interfere with the orderly progress of this hearir:g. -
Whatever - the appearances , it is now- more than' abundantly clear.that the Mapleton Intervenors from the inception have had-no. intention of. sitting idly'by while the Saginaw Intervenors led the way. In jungle fashion, however, they have permitted o the Board to draw such an inference, judging with skill just how far they.could go'in-disobedience to the Board's orders -
without serious penalty. Protestations of inadequacy (as eve-L of-trial efforts to change criminal defense counsel in support
.of the. motion to~adjourd, are both standard stratagems of the experienced criminal.trialzattorney. The Mapleton protestations are belied by their complete. success to this point. That success is evidenced by the failure of th'e other parties yet to pin down even their contentions and evidence, in snarp L- contrast to the record with respect to the Saginaw Intervenors.
But.the moment of truth has'come. And t'he record is L unmistakable. .The Board should act with clarity and firmness.
i Dated: ' Midland, Michigan. '
July 9, 1971 Respectfully submitted,
.Ka'g,/
E W 'ScholergNY Ce rFierman,/ Hay-
/ hAd 9'
& Handle Hearing Counsel for The Dow Chemical Company. !
LOffCounsel,.
Milton R. Wessel,-
-lJosephiP. Bauer,.
.and-Willi.am A.s Groening, 'Jr. , '
- JamesLN.20'Connor.. ,
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