ML19329F569

Affidavit Supporting Motion for Extension of Time to File Briefs in Support of 701201 Motion,In Opposition to Applicant & Dow Chemical Co 701215-710107 Briefs & Interrogatories Supporting 710107 & 0322 CP Issuance

ML19329F569
Person / Time
Site:	Midland
Issue date:	01/07/1971
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:
Shared Package
ML19329F567	List: ML19329F566 ML19329F569
References
NUDOCS 8006300758
Download: ML19329F569 (10)

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.^ DuGKEI NUMBER O PROD. & UTIL. FAC. E'NTOD DOCIEIED 9 uutc 1

2" JAN111971 *

'T%UNU E 9 "/$D AFFIDAVIT

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% N STATE OF ILLINOIS SS.

COUNTY OF COOK Myron M. Cherry, being first duly sworn upon oath ,

deposes and says:

1. I am the attorney for the named intervonors.

2. I was retained by the named intervenors shortly before the first scheduled prehearing conference on November 17, 1970. The time between my becoming counsel for the named intervenors and the prehearing conference was spent primarily and almost exclusively in preparing intervonors' petition to intervenc. i 3 On November 17, 1970, after some discussion about procedural and prehearing matters, this Board ordered, among other things, that:

"On or before January 7, 1971 counsel for Saginaw Valley Nuclear Study Group, et al.

shall serve his interrogatorics on the Applicant and Staff."

At the time of the Board's order it was not known to the Board, nor any party to this proceeding, including intervenors, thht between November 17 and January 7 additional obligations would be placed upon intervenors' counsel in the Midland and other proceedings which would effectively prevent intervonors' counsel from having sufficient time within which to prepare 80063007sg

p D interrogatories and file thou on January 7, 1971.

4. _ Between November 17 and December 1, 1970, the latter being the date of the second prehearing conference, it became_ apparent to intervenors' counsel that certain legal motionsL would have to be made in order to preserve the r16 hts of the intervenors opposing the issuance of any license or permit for the Midland Plants. Accordingly, on December 1 s intervenoqs filed motions with the Board, including a motion not yet ruled upon that all prehearing and discovery proceedings be held.in abeyance until the resolution of le6al issues.

5 After discussion on December 1 at the prehearing conference, the Board ordered the parties opposin$ inter-venors' motions to file briefs in opposition thereto on or before December 15 and that intervenors should respond thereto on January 7, 1971, the same date on which intervenors' interror,atories are due.

6. In addition, on December 1 Applicant filed a series of six motions, and thereafter two memoranda in support thereof, and the Board ordered intervenors to respond to these briefs of Applicant also on January 7, 1971, the same date on which intervenors' interrogatories are due.

7. Since the resolution of legal issues logically takes precedence over and will control discovery matters, intervenors set about to prepare and file the various briefs prior to filing.the interrogatories. Intervenors believe i

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that resolution of legal issues will of necessity prevent the occurrence of argument upon certain interrogatories.

8. Because of the delays in mail. service, the briefs of Applicant in support of its Hovember 30 notions were not received by intervenors' counsel until the middle of the week of December 7 and the briefs of Applicant and Dow Chemical Company in opposition to intervenorc' motions were not received by intervenors' counsel until the beginning of the week of December 21. In anticipation of these briefs and in support of their motions, intervenors' counsel was at work preparing submissions to be filed on January 7, 1971.

9 As of the writing of this affidavit, intervenors' counsel has prepared and will file on January 7 a brief in opposition to Applicant's motions of Hovember 30 but has not as yet completed briefs in support of intervenors' December 1 motions and in opposition to the submissions of Applicant and Dow Chemical Company of December 15 These briefs will be ready for filing on Monday, January 11, 1971, Just two business days later than the order requires.

10. This motion of intervenors also requests the Board to permit intervenors t.o file their interrogatories some sixty days later than ordered. It has been impossible for intervenors' counsel to do any work on these interrogatories, thus far, and intervenors' counsel will be unable to begin

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r such preparation of the interrogatories until after January 25, 1971.

11. The factual reasons underlying this specific request are as follows:

(a) 14y trial schedule during'the entire year 1970 has been immensely burdensome.

(b) Since June 23, 1970, the day on which I became involved in the Palisades case, I have worked on Atomic Energy Commission proceedinCs or other matters cach day with the exception of ho]idc.ys.

(c) Since November 17, the date of the prehcaring conference, to the present, I have been specifically engaged as follows:

(i) On November 18 I conferred with various of the intervenors in Grand Rapids, Michigan.

(ii) On November 19 I was in my~ office working primarily on document production in connection with the Palisades case.

(iii) On November 20 I traveled to Ann Arbor, Michigan-to interview prospective witnesses with respect to the Palisades case.

(iv) Beginning Hovember 21 I began preparation for trial in Minneapolis, Minnesota (Anderent v. Chrysler Corporation, United States District Court for the District

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of Minnesota) and was engaged in trial from November 23 through November 25 (v) From November 26 throuch the 27th I was in my office preparing for hearings in Palisades beginning December 8 and conferring with colleagues with respect to six lausuits filed against one of our office c,lients in the state courts of Minnesota, which complaints had to be reviewed and answered by January 4, 1971.

(vi) From November 29 through December 1,I prepared for and attended the Midland prehearing conference and in addition attended a pretrial conference with respect to another case, Lindow v. Maranz, United States District Court, Northern District of Illinois, which is scheduled to be tried in late January or early February, 1971.

(vii) On December 2 through December 5 I was again on trial in Minneapolis, Minnesota in the Andere.gg case.

(viii) From December 6 to December 8 I was engaged 'N '

in preparation for the Palisades hearings which were scheduled to and did convene on Tuesday, December 8.

As a result of Cnairman Jensch's ruling on December 8, beginning December 9 and including December lo and 11, I was in Kalamazoo, Michigan meeting with representatives of Consumers Power Company.

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(1x) On December 12 I traveled to WashJ ngton to prepare for a meeting with the Federal Trade Commission regarding an office client matter and on December 14 attended this meeting.

(x) From December 15 through December 18 I was again engaged in trial in Minneapolis, Minessota on the.Andercriq case.

-(xi) On December 19 I was in Grand Rapids, Michigan conferring with representatives of Consumers Power regarding the Palisades case.

,(xii) On December 20 and 21 I uas in my office working on the briefs for the Midland case and on Tuesday, December 22, traveled again to Grand Rapids for meetings with Consumers Pouer in connection with the Palisades case, as required by Chairman Jensch's order of December 8.

t (xiii) From Wednesday, December 23, through Sunday, January 3, I was at my office preparing briers in connec-tion with the Midland proceedings as well as preparing and filing answers and interrogatories in several Minnesota state court cases on which answers were due January 4.

(xv) On Tuesday, January 5, I was in Washington, D.C. conferring with representatives of Consumers Power and the Atomic Energy Commission regard $ng the Palisades case.

(xvi) From January 6 throur,h January 10, I plan to l

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p_ r comp 1cto work on briefs yet to be filed in Midland, appear in an unrelated emergency injunction matter and participate in an all day meeting with representatives of Consumers Power regarding the Palisaded Plant.

(xvii) Beginning January 11, 1971, I will again be engaged in trial in the Anderegg case in Minneapolis, Minnesota, which is scheduled to last from two to three weeks.

. (xviii) During the month of January, 1971, I have to prepare: a protrial brief and jury instructions for Lindow v. Maranz; scheduled to be tried in late January or early February; a set of interrogatories for six Minnesota state court cases as to which I have already received an extension of time; and a revised franchise agreement relating to a Federal Trade Commission investi-gation which has been pending more than one year.

(xix) During January and February I shall also be engaged in writing a brief for Sierra Club, et al. v.

AEC, recently filed in the District of Columbia Court of Appeals, and I also believe that I will be engaged for some two to three weeks in the Palisados Plant matter, in addition to any hearings which may be scheduled therein.

12. When I became involved in the Midland proceeding I determined to secure a scientific consultant who was knowledge-able in the field of nuclear engineering. Accordingly, between a

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November 17 and the third week in December, intervenors and I interviewed many persons and arrived at a working arrangement with a student at Purdue University who is working on a doctoral degree in nuclear engineering. This student's doctoral thesis is the review and analysis of an Atomic Safety and Licencing Board hearing, and I felt that his background would not only be helpful to me as counsel for intervenors but would immcasur-ably assist the expedition of this hearing. I have come to rely heavily upon this student in connection with the prepara-tion of the interrogatories, and his academic schedulo does not permit him to assist me until after January 25, 1971. Dcginning on January 25, 1971 this student will be working full time on the Midland hearings and therefore will be in a position to work with me in the preparation of the interrogatorics.

13 It would be impossible for me to prepare an adequate set of interrogatories in this I.gatter without this student's help and indeed a set of interrogatories without a i

nuclear engineer's assistance might be an imposition on the

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Board. l

14. It is important in pretrial proceedings that adequate time be given for thorough preparation so that matters can be fully investigated without the necessity of retracing

-once again certain issues.

l 15 The extension of time for the filing of interroga-  !

_ tories will not prejudice any other party since ~it is unlikely that various legal issues which will control the scope of dis-covery and therefore the interrogatories will be resolved until perhaps the end of February. In this regard, I call attention to the recuest of Dow Chemical Company in its December 15 submission that whatever the Board's decision upon all legal issues, they should be certified to the full- Commission. It is unlikely that such a procedure would result in a Commission decision prior to the 15th of February at the earliest. In addition in view of the fact that there now will be some discussion as to the possibility of implementing any Court of Appeals decision in a proceeding, recently filed by the Sierra Club and others attacking the revised Appendix D, to the resolution of the so-called NEPA issues in the Midland proceeding, it is perhaps unlikely that a full resolution of the environmental issues which will aCain control the scope of discovery in this proceeding will be accomplished until the end of March, 1971.

16. Unless this Board extends the time for filin'g of intervenors' interrogatories, intervenors will be unable to prepare such interrogatories and discovery will have to be sought during the course of cross-examination.

Such a procedure is unuorkable and i'ndeed the recent amend-ments by the AEC concerning its rules of procedure stress the fact that discovery matters be completed insofar as practicable,

. . at the prehearing sta6e of the proceeding. "

35 F.R. 19501, December 23, 1970.

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17. In all of the matters that have occupied my time since November 17 it was impossible for me to completely delegate all of my duties, since in all of these matters I am the lead or co-counsel, and no other lawyer possessed sufficient factual background to handle such matters.

18. If the Board grants the extension, I will make every effort to file my interrogatories on a piecemeal basic during the period of extension so that during the extension of time some of the parties can be working on answers to interrogatories. .

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'. $ron M. Che'rry Subscribed and sworn to before me this A day of January, 1971.

Y%ill 0 ds W Notary Public l

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