ML19344A198

Affidavit Supporting Saginaw Intervenors' 740511 Petition for Expert Witnesses & Attys' Fees.Issues Will Not Be Adequately Aired W/O Saginaw Participation.Cites AEC Refusal to Retain Independent Qa/Qc Expert

ML19344A198
Person / Time
Site:	Midland
Issue date:	05/11/1974
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:
Shared Package
ML19344A194	List: ML19344A193 ML19344A197 ML19344A198 ML19344A199
References
NUDOCS 8008060533
Download: ML19344A198 (5)

Text

(.

V Re Show Cause Hearing  !~

Construction'Pormit Nos. 81 and 82 AFFIDAVIT OF MYRON M. CHERRY IN SUPPORT OF PETITION FOR FEES AMD EXPENSES MYRON M. CHERRY, being first duly sworn upon oath, states:

1. I am an attorney licensed to practice before .the Supreme Court of the States of Illinois and California, and I am a member of the Bar of the District,of Columbia. I am an active

' practitioner before the Atomic Energy Commission, and I am the attorney who handled the intervention for the Saginaw Group in Dockets 50-329 and 50-330 and the intervenors' case in the Point Beach, Unit 2, intervention. I.am also the attorney who has filed a conditional request for a hearing in connection with the Show cause proceedings;

2. I have been informed by Mary P. Sinclair that the Saginaw Group does not have funds to retain experts in the Q.A.-Q.C.

aress or to pay attorney's fees. I have informed Mary Sinclair I that unless the Saginaw Group is able to retain experts in the Q.A.-Q.C. field, their participation in the Show Cause proceeding may not be as productive as it otherwise could. I have also in-formed Mary Sinclair that without funds to pay attorney's fees I would be unable to represent them any further in this Show Cause-proceeding.- I have given consideration to accepting the Saginaw Group's case on a no-fee-pro bono publico arrangement, 8 0 0 8D 60 f.3 ~3 .

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4 but in light' of my other pro bono publico activities, including such activities in connection with Atomic _ Energy Con. mission mate ters, I am unable to do so; _

3. It is my judgment, based upon the record, that without the

_ Saginaw Group's participation in the Show Cause proceeding, the issues will not be fully aired. Both Consumers and Bechtel have

-already indicated their opposition to the Show Cause Order (not surprisingly) and the' Regulatory Staff has st'.ted that it no longer supports the Show Cause Order. Since Dow Chemical has admitted, in its Answer to Saginaw's Interrogatories, that it neither has the expertise nor the intention to pursue the Q.A.-Q.C.

matters, without the Saginaw Group there is'no one who will take an adversary position in this proceeding. This is distressing in ~1ight of the continuing failure of t.onsumers to be able to comply with'Q.A.-Q.C. regulations either at Midland or at Palisades;

4. If the Saginaw Group is grant'ed funds by the Atomic Energy Commission to pursue its ' participation, such funds will be reason-

, ably spent in'two ar.eas as follows:

- (a) To' retain an expert in Q.A.-Q.C. matters

• independent of.the nuclear industry and the Atomic Energy Commis-sion'to assess the O.A.-Q.C. performance of Consumers e

-t-and its future ability to comply with regulations and to testify concerning these matters. Thus, awards of funds for an expert in this area would not be for a

, purpose peculiar or private to the Saginaw Group, but rather would be for a public interest purpose and in

-support of the principles inheren': in the Atomic. Energy Act and the National Environmental Policy Act; (b) To pay the reasonable ' attorney's fees of myself in connection 'with the participation of the Saginaw Group.

Since I am experienced in the atomic energy field and since I have handled matters before the Commission dealing with Consumers Q.A.-Q.C. matters, an award of expenses for fees to rne would also serve the broad purposes of the Atomic Energy Act and the National Environmental Policy Act. Such funds would bc used for' expeditious preparation and participation directed

-to the issues in this proceeding and not for any other purpose.

5. Mindful of the problems that the Saginaw Group presently has concerning the lack of funds, I previously have entered into dis-cussions with various_of the other participants in an attempt to find scxne' middle ' ground. The results of these discussions are" as foll'ows:

. i s i

(a). Both prior and subsequent to the issuanc'e of the Show cause Order, I have had discussions with Mr.

Howard Shapar of the Atomic Energy Commission to determine if the Atomic Energy Commission, itself, would retain a Q.A.-Q.C. expert indeoendent of the nuclear industry and the Atomic Energy Commission in connection with these proceedings. My purpose was obvious. If the Atomic Energy Commission would re-tain.such an independent expert, then there would be less need for the' Saginaw Group to do so. While Mr.

Shapar indicated thtt the idea was an interesting one, he did not agree to pursue it; (b) Subsequent to the issuance of the Show Cause order, I had discussions with .Consu'mers' lawyers, both Mr.

Reis before his withdrawal from the case, and with Consumers' new lawyers, Isham, Lincoln & Beale. I tendered the same proposition to them asking if Con-sumers would be agreeable to selecting with the Saginaw -

' Group an independent expert in the Q.A.-Q.C. field to analyze the facts and testify. I explained that.this

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would assist the proceeding as well as Saginaw's parti- l

, cipation. Both.Mr. Reis and the law firm of Isham, .

4-L_.' - -

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'N. Lincoln & Beale thought the idea was interesting and constructive and said they would tako the matter up with their client. Thereafter, they failed to agree to such an arrangement.

Saginaw has also attempted to be productive in this proceeding by drafting and serving interrogatories in an effort to assist

'the Board frame the issues. (See Pre-Hearing Conf. Tr. 57, at

1. 9-10 and Tr. 68 at 1. 4-6). Accordingly, the Saginaw Group has gones as far as it can, without funds, in an attempt reasonablv to gooperate in connection with this proceeding. ~

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6. I have made a preliminary investigation as to independent

, Q.h.-Q.C. experts and none are available without payment of fees and expenses.

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~

l-Myron IM/ Cherry /

Subscribed and sworn to

-before me on May- 11, 1974.

si l} $ A n il J~~~Tr / d ota y7uElic .

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