ML19338C158

Memorandum in Opposition to Saginaw Intervenors Motion for Extension of Time to Serve Interrogatories Board Should Propose Sanctions on Saginaw Intervenors.Certificate of Svc Encl

ML19338C158
Person / Time
Site:	Midland
Issue date:	01/13/1971
From:	Wessel M DOW CHEMICAL CO., KAYE, SCHOLER, FIERMAN, HAYS & HANDLER
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8008050610
Download: ML19338C158 (8)

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LUNITED STATES OF AMERICA'

' ATOMIC ENERGY COMMISSION In.the Matter-of-

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Docket'Nos. 50-329 CONSUMERS 1 POWER COMPANY

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50-330 Midland Plant, Units 1 and 2

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MEMORANDUM'IN OPPOSITION TO SAGINAW MOTION FOR EXTENSION OF TIME.

This Memorandum is submitted by Dow in opposition to the Saginaw intervenors' motions for a two and one-half month extension.of their times to serve interrogatories.

Stripped of_the customary invective and calumny directed to all parties which oppose them, the Saginaw motion papers prove two things:

First, that_in the absence of sanctions the Saginaw;intervenors cannot be made to comply against their wills with-any order o'f this Board, no matter how specific or repeated.-

~Second,.that without such sanctions the.Saginaw intervenors will not-give this matter the priority'it

. requires.over other legal matters being-handled by their

-counsel.- -

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- Need for ~ Sanction.t._

The: Hearing Board directed the Saginaw intervenors tofprepareLand file their~ interrogatories by no later.than

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January 7.

Despite-this, on:that very date, without prior request or even notice, the Saginaw intervenors l-moved ~for an extension ~of their times to March 22, 1971, even a'mitting-th'at they'had failed "to do'any_ work on d

these interrogatories,-thus far" (Cherry affidavit, 1 10, underscorinE added.)

Evidencing similar disrespect for-i the nandate of the. Hearing Board, the Saginaw intervenors i~

also waited until January 7 to.make any request for an I

extension of ' timer to file their briefs due that day.

Unless sanc,tions are imposed the Saginaw strategy of seeking extensicas after their times have expired, necessarily guarantees them what they demand, at least to the extent of their default.

I'ndeed, the Saginaw threat that if they are denied the extensions they now. seek, they will simply obtain such discovery.at the Hearing during cross-examination (Cherry affidavit, 1 16), thereby forcing a Palisades-type' procedure, reflects their view that this Board can do nothing to them.

Such is not the case --

this Board has. ample power to terminate all discovery --

now or later -

for wilful default.

Whatever their sometimes substantial differences

.with respect to the issues in this proceeding,.all other

.partiesLha're - conscientiously and faithfully adhered to r

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w what they. regard to be the directions of the Hearing

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In contrast, to-this point the Saginaw intervenors,

although casually requesting relief!by motion,after motion submisted on the basis of ~ off-the-cuff papers devoid of

'citat$on:to authority (but to ich all other parties

.must respond), have evidenced a complete disrespect for the authority of the Board..

Unless drastic sanctions

-are imposed, it seems inevitable that such conduct will continue.

2.

Work Load-of'Saginaw Counsel.

1 The affidavit of Saginaw counsel makes abundantly clear that he is committed to a great many other legal proceedings, which (unless tne:present order of priority is charged) will inevitably continue to interfere with his abi;.ity to meet ~ the commitments imposed by the-Hearing Board in-this proceeding..

But counsel's other commitments are an explanation, not an excuse -- all other counsel undoubtedly have similar-engagements-which have been-juggled and shifted in accordance with the standard practice at the litigation-bar.

Saginaw

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counsel is a member of a law firm with seventy-four

' attorneys'listedJin the most recent Martindale-Hubbell legal directoryLand with therefore at least..the same flexibility-3

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als:loca'llMidland counsel.

.' hat this' explanation. proves W

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'therefore Tis that icounsel has'not yet been directed to give Midland priority:over other. matters.-

Palisades, state

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court proceedings and otherwise.-

The?Saginaw intervenors assume that what-they i

Sdo in.this ' case will control "in all-future AEC cases":

-(Cherry, January 7, 1971 letter,-p.2), yet refuse to.be

- bound themselves by-the decisions in-other AEC matters.

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-(See: footnote--14, p.23~of Saginaw. Memorandum in Opposition

' toLApplicants~ Procedural Memoranda, stating that the Saginaw intervenors intend.to move for-discovery with-respect to "all other similar: light water reactors.")

If thi'. kind of participation is what'they seek, they must s

accord Lthe proceeding the1 attention for: which they thereby.

' call.

3.-Procosed Sanctions.

'We believe that-at the January 21 conference, the-

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Board should' direct as follows:

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.(a) [Discoverylwith respect-to any-issue will be conducted:in accordance with the orders of1the; Boa-d,-and will not be permitted at the P._aring exceptfon asshowing of-Eood cause. "Such good cause'willLnotJinclude-any party's default uin thaving. sought such discovery.

at an earlier time.

/(b)'-Th'e1Saginaw'intervenors'will be per-

.mitted interrogatories only with respect to specific' issues-' identified x.

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by-them ~on - or 'before January '28, as I

to which: there -is a sufficient showing:

of.meritz to warrant a belief that dis-

~covery'will1producelinformation of value to the Board'in deciding the issues -- not just.information'which may be relevant or which may lead to 4

-relevant information.

(c)

As to-each identified issue, the Saginaw -

intervenors must serve all interrogatories separately and at three-day intervals,

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' excluding only Sunday and legal--holidays.

(d)

Other. discovery with-respect to any issue, i

by way of deposition.or otherwise, will be ~ permitted' only upon a showing of good cause following receipt of the responses to-interrogabories.

(e)

Upon completion of discovery with respect to-any issue and to the~ extent the. issue is severable, hearing on that issue will proceed simultaneously with discovery on

.othersissues.

('f ) ' To keep the required tight reins on the Saginaw intervenors, the Hearing Board.

will'. meet weekly-at dates scheduled by.

it well in advance, to deal with discovery matters, receive progress reports, hear argument and otherwise.

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' Conclusion Time and again the Saginaw intervenors have demonstrated,a!1ack of resp,ect.for the orderly process of this Board ---by asscrtions of' rights paramount to all Lota 'r. parties, by; threats of what they will do.if their requests.are= denied, and now,.by_ simply failing to comply withiclear, unambiguous directions.

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There=comes a. point at which such conduct must be. dealt-with. positively and directly, and apparently

~in the.-only way in which respect;,will follow.

The motions for adjournment.just received amply demonstrate that that.

point ~has come..

Dated:-

New York, N.Y.-

January 13, 1971.-

' Respectfully submitted, KAYE, SCHOLER, FIERMAN, HAYS

& HANDLER i)

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.s v Hearing Attorneys for The Dow Chemical Company Of Counsel:

Milton R. Wessel Allen Kezsbom Joseph P. Bauer and William A. Groening, Jr.

James N. 0'Connor e

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v CERTIFICATE'OF SERVICE LI,. Milton 1R. Wessel,-Es,q., a member of the' firm Kaye, Schdler, Fierman,LHays & Handler,-trial counsel s

to The Dow Chemical Company in the dbove matter,.hereby certify'in accordance.with the provisions of 10'C.F.R.

!$ 2 712(e)(2):that on January 13, 1971, I served a copy F

of the attaahed-Memorandum in. Opposition 'to Saginaw Motion for Extension of Time, by postage prepaid mail, upon the-

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attorneys.for each of the parties, whose names and addresses are liste' below:

3 Richard'G. Smith, Esq.

Smith:& Brooker 703 cWashington Aver.ue BayoCity, Michigan-

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~ Thomas F~

Engelhardt, Esq.

Regulatory Staff Udited States Atomic Energy Commission Washington,1D.C.

20545

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Myron C. Cherry, Es'q.

McDermott, Will'&: Emery.

111-West Monroe Street.

Chicago, Illinois. 60603 James:A. Kendall,.Esq.

. Currie & Kendall

'135 North ~Saginaw: Road Midland, Michigan

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LAnthony Z.0Roisman,-Esq.

Berlin, Boisman &'Kessler

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.1910:N Street, N.W.

Washington,.D.C.-20036 L

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-. William:J. Ginster, Esq.

Suite; 14, f Merrill. Building Saginaw, Michigan

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Milton R.-Wessel

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