ML19344A091

Motion to Adjourn Any Hearing in Connection W/Suspension Proceedings or in Alternative,To Schedule Hearings to Take Place on or After 761115.Certificate of Svc Encl

ML19344A091
Person / Time
Site:	Midland
Issue date:	09/27/1976
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, MAPLETON INTERVENORS, Saginaw Intervenor
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19344A085	List: ML19344A084 ML19344A090 ML19344A091
References
NUDOCS 8007290980
Download: ML19344A091 (8)

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.usnec UNITED STATES-0F AMERICA 0~ 0 C T J. ;g7g 3 J NUCLEAR REGULATORY'COMNISSION h aww M BEFORE THE ATOMIC SAFETY AND LICENSING BOAP , M

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In the Matter of )

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CONSUMERS POWER' COMPANY ) Docket Nos. 50-329

) 50-330 (Midland Plant, Units 1 & 2) )

l MOTION OF MAPLETON AND SAGINAW INTERVENORS TO ADJOURN ANY HEARING IN CONNECTION WITH SUSPENSION PROCEEDINGS OR IN THE ALTERNATIVE, TO SCHEDULE HEARINGS TO TAKE PLACE ON OR AFTER NOVEMBER 15, 1976 As earlier transmitted to the Atomic Safety and Licensing Board, and as pennitted by' ASLB's most recent orders, Saginaw and Mapletop i

Intervenors hereby move for an adjournment of the hearing date set to f begin October 6, 1976 in connection with suspension of the Midland

. permit and in support thereof make the following factual statements which are represented.to be true by Intervenors' attorney.

l l 1. As a result -of the Court of Appeals decision in Aeschlimat and various. orders by the Nuclear Regulatory Commission and Atomic Safety and Licensing Baord, hearings are cuprently scheduled to begin October 6' in the Midland suspension hearings in connection with taking evidentiary matters. Saginaw and Mapleton have earlier advised the Commission and the ASLB that only legal questions are involved and no. evidentiary hearings are necessary. In fact, Saginaw and Mapleton Intervenors firmly believe that any factual information which the

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Atomic: Safety;and Licensing Bo'ard might need_is already clearly avail-ablc~from 'the. record and includes the facts that waste management 80_07.29o M O -

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p- (problems are Lnot resolved;:- that the . remanded Lhearings could change L m . . . . . '

p ithe scope (of, the plant;fthat;unless : stopped, Consumers; intends to

move forward with

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? building.in an: attempt to make a fait accompli; and ,

that environmental analysis.of end-use.of electricity,' analysis.of

' energy conservation and anal'jsis of safety Jissues-(which wuld be raised

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L -af ter a revised ACRS .;lette$ all opt. for a halt in construction'.

l All of' these~ matters 'are undisputed and in our judgment raise clear-cut legal issues which can be:de'cided solely on the briefs already L in and to be submitted September 29, and for that reason we b'elieve

- an evidentiary-hearing is not.needed and that schdduling result's in a' burden on Saginaw and Mapleton'Intervenors.who have limited resources and whose requ'ests for fee's 'to the NRC have been continually ignored'.

In the' event'that the Atomic Safety and Licensing Board. I 2.

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L still' believes lit is' necessary to' hold a hearing on evidentiary mat-i ters, it should notitake. place'as presently scheduled for October 6,.7' '

and.8' .

The reasons'.for this. include the following time commitments.

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which-are~irr' evocable'and which bind me (Saginaw and Mapleton's only- W-attorney)'alifof-which' time commitments were entered into prior to

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. Tuesday,! September 21, 1976;when-I first bedame-aware of telephonic

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notice. offsetting of these hearings. This include:

A.. Duringlthe" week'"of' October:5 (October.4.is a? Jewish c- . . .. .. .. . .

? holiday)iltam scheduledito:try-a. case be' fore Judge.Covelli, Circuit-Court:of t: Cooks County, in a. matter .which has been 'pending . since May

.and!inTtheimidst?ofjtrial.s: Effortsfto tamper with this-schedule:have-7 ,

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B. On September 27, 1976 I filed an injunction lawsuit on behalf of Thomas Laughlin and others against Warner' Brothers'and National' Broadcasting Company;to enjoin the showing of a movie on NBC Network Television on November- 20, 1976. As a result of'those papers and because of the need for an early preliminary injunction hearing, I have.become irrevocably committed to the following schedule:

(i) A -preliminary injunction hearing in Los Angeles, California, beginning November 3 to last approximately three days; (ii) Major briefs and affidavits to be filed on October 22 and on November 1; and (iii) The taking of depositions and the examination of documents both in Los Angeles and New York on an expedited basis during the week of September 28, the week of October 11 and the week of October 18.

For this reason I am totally unable to take any time out during the month of October and prior to November 5 in connection with any other matter. My clients in California stand to be irreparably injured if I am not available tof ake t depositions, analyzeidocuments and prepare the briefs on a schedule in September and October.whic'h is.e.iready proving: burdensome.

=3. November 8, 9 and 10 I am scheduled-befo're the Wisconsin

-Public Service Commission on hearings which have been set at least-three weeks'ago in' connection with an important matter dealing with-the Koshkonong nuclear facility.

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.Thesehearingsweresetafterextensivenegotiationswith .

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' counsel {for.:the various parties and the Public Service Commission

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and'I believe'it would b'e impossible to reschedule them.

4.. am agreeable to - b~egin the Midland: hearings beginning November 15.which'is the earliest possible which my schedule permits.

5. In an effort to try to resolve this amicably,'I' tele-phoned in aEconference cal 1~ Messrs. Reis, who represents. Consumers i Power Company, and Brown, who represents the Nuclear Regulatory 1- .

L Commission Staff. Mr. Reis ^was not agreeable to any adjournment l .

except'for one,.two or three days which is not~a reasonable-attempt

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to resolve my problems, since even under Mr. Reis' ndjournment 'sched-l L - ule I will.still be in trial in connection with the matter-which, I

forms the basis for my being unavailable on October 6 aa stated above. a l

-6. Mr. Richard F*own has authorized me to state that'the. - ,

~ Staff is available during and after the week of November 15 and.while the Staff!

c would prefer.to have the. hearings earlier, in light of my schedule (thelgood faith?of which.no~ party questions), the Staff does not have serious objection to scheduling- the hearings on November 15~ . The-

-Staff is unavailable' during the week of October 11. This means that t

..theLStaff.could' accommodate hearingsLon October.18 and 25 but I am ,

committedLtoLeake~ depositions'and; write; briefs during that period ~

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L Lof time;in:the. preliminary injunction hearing.'and as.I n'oted on-U . .. .. . . .. - .

L. ^' ~' November ;3. the preliminary ~ injunction hearing begins 'and I will be-p

'in(Los Angelesiseve'ralidays or weeks :beforeit hat preparing;fo~r that-fevidentiary hearingF.All"of,these1 dates were agreed'upon;with~ counsel

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o and-the Court in the Los. Angeles matter prior to my having knowledge of the Octoberf6 setting of the hearing.

7. : In order to accommodate a delay as requested by this extension, in my conversations.with Messrs. Reis and Brown on Friday,.

September 24, 1976 I revealed to them the fact that I would be offer-ring noLdirect witnesses but would cros's-examine any witnesses pro-duced by~ the Staff, Consun,ers and Dow Chemical and I informed them of the general scope of my cross-examination. ,

I have asked the-Regulatory Staff and Consumers, in the event'the extension is granted, to outline their_ testimony and be prepared'to produce relevant

. documents so that when the hearings.begin we can move forward in a quick manner. Nb. Reis and Mr. Brown did not commit to all th'at I requested, but.would favorably consider my request and agreed to provide outlines of each of their direct testimony. By letter I intend to make a similar request of Dow Chemical Company. Some of the documents I~ asked Mr..Reis to produce include contracts and cor ,

respondence with Dow Chemical concerning Dow's revised plans for energy facilities in Midland as well as Consumers Power Company's contracts with major suppliers-and vendors. bhr. Reis indicated he probably-would not produce these documents voluntarily but I asked him ;

to hcve~the documents available in the hearing room in.the event.they became' relevant and che' Board ruled their production.

WHEREFORE, for the.above reasons I respectfully request that=

the Licensing Board adjourn' any. hearing in connection with suspension proceedings and take the matterisolelyson-legal briefs or in the-S I

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F alternative schedule hearings to take place t on or after November .

15, 1976.

Respectf 9.ly submitted, f

}; O d i w C" arry,.~Attoiney for-My ronLM.{a d' Mapleton Interveno s S2ginaw MYRON M. CHERRY -

- Suite 4501 One IBM Plaza Chicago, Illinois- 60611.

312/565-1177' <

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UNITED STATES OF AMERICA - D.P. "

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NUCLEAR REGULATORY COMMISSI0li 'A .e $/

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ' s , { -j f ,'- /

In the Matter of )

)

CONSUMERS POWER COMPANY ) Docket Nos 50-329

) 50-330 (Midland Plant, Units'1 & 2) )

CERTIFICATE OF SERVICE I certify that copies of the attached Motion of Mapleton and Saginaw Intervenors to Adjourn any Hearing in Connection with Suspension Proceedings or in the Alcernative, to Schedule Hearings to Take Place on or after November 15, 1976 were served upon the following b.y deposit in the United States Mail, postage prepaid and properly addressed, on this 27th day o'f September, 1976. .

Mr. C. R. Stephens Chief, Docketing and Service Section Office of the Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard Brown, Esq.

Counsel for NRC Staff U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Harold F. Reis, Esq.

Newman ,Reis & Axelrad 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 James N. O'Connor, Esq.

The Dow Chemical Company 2030 Dow Center Midland, Michigan 48640 Milton R. Wessel, Esq.

4 Little Lane White Plains, New York 10605

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Howard J,. Vogel, Esq.

Post Office Box 5108 St. Paul', Minnesota 55104 LHonorable Curt T. Schneider

~ Attorney' General 1st Floor, State . Capitol' Building g

Topeka, Kansas- 66612 Daniel M._ Head, Esq.,_ Chairman

^ Atomic Safety and Licensing Board

. Panel U.: S. Nuclear Regulatory Ccemission Washington, D. C. .20555 Dr. Emmeth A. Luebke, Member Atomic Safety and Licensing Board Panel e U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. J. Venn Leeds, Jr., Member 10807 Atwell:

Houston, Texas 77096 .

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Myrdn M, i v'

'herry, Attornsy for Y

Map 1 on.and Saginaw Int venors

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MYRON M. CHERRY Suite 4501 .

One IBM Plaza

.Chicag'o, Illinois-~60611 312/565-1177

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