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LUNITED STATES OF AMERICA''

' ATOMIC ENERGY COMMISSION

In.the Matter-of- ) /~'),' Docket'Nos. 50-329

CONSUMERS 1 POWER COMPANY )-) 50-330

Midland Plant, Units 1 and 2 -)

MEMORANDUM'IN OPPOSITION TOSAGINAW 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 specificor repeated.-

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~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.- -,

_1. - Need for ~ Sanction.t ._

The: Hearing Board directed the Saginaw intervenors,

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tofprepareLand file their~ interrogatories by no later.than

:8'008050-[(C h,

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January 7. Despite-this, on:that very date, without!- prior request or even notice, the Saginaw intervenors Il-

moved ~for an extension ~of their times to March 22, 1971,

even a'mitting-th'at they'had failed "to do'any_ work ond

these interrogatories,-thus far" (Cherry affidavit, 1 10,underscorinE added.) Evidencing similar disrespect for- i,

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the nandate of the. Hearing Board, the Saginaw intervenors.;

i~ also waited until January 7 to.make any request for anI 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 aPalisades-type' procedure, reflects their view that this

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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..

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Whatever their sometimes substantial differences.with respect to the issues in this proceeding,.all other.partiesLha're - conscientiously and faithfully adhered to

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what they. regard to be the directions of the Hearing

. Board. In contrast, to-this point the Saginaw intervenors,

:although casually requesting relief!by motion,after motionsubmisted 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 priorityis charged) will inevitably continue to interfere withhis 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-

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als:loca'llMidland counsel. .' hat this' explanation. provesWy

. . 'therefore Tis that icounsel has'not yet been directed to give.

Midland priority:over other. matters.- Palisades, state i~

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court proceedings and otherwise.- |

The?Saginaw intervenors assume that what-they-

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

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

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

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

' toLApplicant''s~ 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 musts

accord Lthe proceeding the1 attention for: which they thereby.

' call.

3 .-Procosed Sanctions.

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

Board should' direct as follows:1

.(a) [Discoverylwith respect-to any-issuewill be conducted:in accordance with

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- the orders of1the; Boa-d,-and will notbe permitted at the P._aring exceptfonasshowing of-Eood cause. "Such goodcause'willLnotJinclude-any party'sdefault 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,

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by- them ~on - or 'before January '28, asI : to which: there -is a sufficient showing:

of.meritz to warrant a belief that dis-;

; ~covery'will1producelinformation ofvalue to the Board'in deciding theissues -- not just.information'whichmay be relevant or which may lead to4

-relevant information.

(c) As to- each identified issue, the Saginaw -; intervenors must serve all interrogatories- separately and at three-day intervals,[ ' excluding only Sunday and legal--holidays.# (d) Other. discovery with-respect to any issue,,

i by way of deposition.or otherwise, willbe ~ permitted' only upon a showing of goodcause following receipt of the responsesto-interrogabories.

(e) Upon completion of discovery with respectto-any issue and to the~ extent the. issueis severable, hearing on that issue will

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proceed simultaneously with discovery on.othersissues..

('f ) ' To keep the required tight reins on theSaginaw 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) !' '

[2 eeI _. By d .s vHearing Attorneys for The Dow

Chemical Company.

Of Counsel:

Milton R. WesselAllen KezsbomJoseph P. Bauer

andWilliam A. Groening, Jr.James N. 0'Connor

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CERTIFICATE'OF SERVICE.

LI,. Milton 1R. Wessel,-Es,q., a member of the' firm

Kaye, Schdler, Fierman,LHays & Handler,-trial counsels

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 copyF

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of the attaahed- Memorandum in . Opposition 'to Saginaw Motion

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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-_

[ ~ Thomas F~ Engelhardt, Esq.Regulatory StaffUdited States Atomic Energy

CommissionWashington,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: RoadMidland, Michigan

~ LAnthony Z.0Roisman,-Esq.-

Berlin, Boisman &'Kessler~,"

.1910:N Street, N.W.- '.

Washington,.D.C.-20036. .

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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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