ML100140213
| ML100140213 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/09/1971 |
| From: | Cherry M Flynn & Kanter, Law Offices of M M Cherry |
| To: | Muntzing L US ATOMIC ENERGY COMMISSION (AEC) |
| Shared Package | |
| ML100140214 | List: |
| References | |
| NUDOCS 8111040474 | |
| Download: ML100140213 (7) | |
Text
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312.04 1.5575 December 9, 19 71 Mr.
L.
Manning fluntzing Director of,eculation Atomic Enercy Commission Washington, D. C. 20545
Dear Director Muntzing:
As a follow-up to the meeting held on November 29, 1971 among representatives of the Commission and Lhe Regulatory Staff, as well as various counsel for Intervenors in Atomic Safety and Licensing Board procreedii-:s, we think i.t appropriate to set forth in Some detail our view of the discussion at-that meeting, concerning the scheduled rulemaking proceeding dealing with Acceptance Criteria For Emergency Core Cooling Svsten;. For Light Water-Cooled Nuclear Powered Reactors," notice, of which was published in the F.ederal Register on Tuesday, November 30, 1971.
As you will recall, we first received knowledge of that notice the morning of November 29 and in the afternoon quickly presented to you a formula for fairly resolving the current ECCS dispute in an adjudicative rather than a legislative type proceeding, on an expedited basis,, thereby eliminating the ECCS issue from each of the current licensing hearings.
As you will also recall, we tendered certain suggestions in connection with the proposed rulemaking hich ar-e et forth below in Part II.
In return for the adon}tion of these suggestions, we offered on behalf of our clients (with the added incentive that the Intervenor represontatives at that meeting would attempt to accomplish a consolidation of all hearings even with respect to those hearings for which a representative was not )resont at the meeting) the following colices sions:
8111040474 711215 PDR ADOCK 05000247 G
Mr. L. Manning Muntzing December 9, 1971 Page Two I.
A.
Intervenors would remove from licensing hearings all challenqes to ECCS Criteria (except whether a particular syst'm complied with the Criteria and the question of That residual risk from the totality of a particular proposed plant remains, notwithstandina corpliance with the Criteria) and restrict their presenta
,ion on EiCS issues to participation in and appeals from an adjudicatory type rulemaking proceeding.
B. Intervenors would consolidate their discovery requests, so as not to burden the Commission and other parties with multiple requests.
C. Intervenors' lawyers would form a committee to participate in the rulemaking so as not to overburden tile rulemaking with duplicative or excessive cross-examination.
D. Intervenors would make every effort to comply with and even expedite the schedule for the rulemaking proceeding as reflected in the notice of rulemaking published, on November 30.
II.
In exchange for :these concessions, Intervenors requested consideration of the following:
- 1. The rulemaking proceeding would be an adjudicatorNY type proceeding rather than a legislative ty7pe proceeding with any decision reached therein based upon the transcript of the proceeding.
- 2. All witnesses would testify under oath and would be subjoct to cross-e.%a*.nation norrally afforded in adjudicatory or trial-type hearings.
- 3. All intervenors in current licensing hearings w7ould become partcipants in the rulemaking proceeding without any formal 'ilinas other than notice of :intent to pa tti
Mr.
L.
Manning Muntzing December 9, 1971 Page Three
- 4. An informal pre-hearing conference(s) would be held for the exchance of relevant documents in pose"sion af t-e Commission (and vendors and utilities to the extent they participate).
We had suggested that such a conference occur on December 6, 1971 at which time we would submit a list of requested documents and at the same time the Commission would turn over documents it acknow:ledged relevant, together with (to the extent all documents,ere not produced at that time) a list of documents in the Commission's possession or control which fairly relate to the ECCS issue.
Thereafter, we offered to provide a further list of documents and to participate in a further pre-hearing conference during the week of December 21, at which time all questions concerning discovery would be resolved and all documents would have been produced. You will also recall that we stated that for us to comply with such a schedule we would require quick action by the Commission in resolution of our suggestions, action which has not vet taken place.
Alternatively, we suqgested that our list of'requested documents be submitted to the Commission within five business days subsequent to a Commission decision on our suggestions, and that the Commission begin producing documents immediately, notwithstanding the absence of a list.
- 5. The actual hearing on ECCS issue's would begin no earlier than 30 days after all documents had been produced.
(If the original schedule of Decehber 21 can be met, then there appears to be no difficulty with the hearing on January 27.)
We also offered, to the extent possible, during this 30 day period to submit to the Commission our position on the ECCS issue, together with names of witnesses which we believe should be invited or subpoenaed to the hearing.
- 6. The Regulatory Staff would present its case first (followed by vendors and utilities if they participa:te).
Two weeks after availability of the transcript of t.he case of the Regulatory Staff (and vendors and uti]lities), Intervenors 'would begin their consolidated cros--
-ation follow.ed by their case in chief.
We also, offered to subm-it within the two week periodbetween the Reaulator; y St e
testimony" and the begcinning of the cro.1ss-e OZ11nn a final statement of our coitentions agCreeing, unleaSs good cause were thereafter,shown, to limit our cross-ex,1mination an(c direct case to the.contentions so listed"
Mr.
L. Manni.ng'.M'ntzing December 9, 1.971 Page Four
- 7.
We requested that the documents produced o available in :dunli cate, one set on the East Coast and one set on the Midwest, and that the Commission arrange to provide intervenors, at no cost, with two comes of the transcript of the proceedings.
- 8. We suggested that the panel hearing the ECCS issues be given the power of subpoena in order to assure that iersons with specific expertise be available at the rule aking.
- 9.
%e stroncly urged that the vendors be parties to the rulemaking proceeding and suggested that if the vendors chose not to do so, then each one of their individual codes would be subject to direct attack in licensing hearings, since the only code which would be subject to the rulemaking proceeding would be the Comuission's so-called Relap-3 Code.
We made this sucgestion 'in our continuing effort to attempt to resolve all ECCS issues in one proceeding.
- 10.
We finally suggested that consideration be given to changing the presiding officer of the panel from Mr. Goodrich to an administrative law professor or a recognized jud'e schooled in administrative and/or judicial proceedings so as to avoid any possible question of prejudice, bias or error.
Alternatively, we suggested that the panel be expanded to five mebers including Samuel Jensch and one other technical memiber such as.
Mr. Warren Nyer.
As of the writina of this letter, we'have not received an, formal conmunication from the Comrnmission as to the status of its acceptance to our proposal but understand that the Commission is considerinaour pro posal and is havina discussions with Applicants and vendors to determine their! willincess to r tic in q~s o aricpate
. t-o rul-inaT proceedina sugceste-d 'by us.
Hever, we must point out. that we have alreadv lost more than a week of our nrbposed schedule and have yet to se av of th.
ECCS doc Lments in the possession ofF, nhe Commission.
d
Mr.
L.
Mannifig Muntzing December 9, 1971 Page Five Moreover, in light of other matters outlined below which have complicated the adherence to a tight schedule, we begin to have concern as to the sincerity x!'nd l
, ne s s u2 of the Co:mm..ission to adopt the proposal as a~scussed at our November 29th meeting in such a way as to afford intervenors and their representatives a
-air opportunity for preparation.
III You will also recall that Mr. Arnold and I suggested that the Commission ought to consider enjoining ECCS issues (or even hearings) at various licensing hearings which were imminent.
We made this suggestion because it seemed appropriate in light of the effort toward consolidation.
Indeed, as the Commission knows, since there are relatively few technical personnel assisting Intervenors, to continue to hold ECCS hearings or to require Intervenors to jockey for legal and scientific positions at the licensing level, while expecting Intervenors-to prepare for the rulemaking proceeding is an exercise in fantasy inasmuch as it would require a small group of persons to divide their efforts on several fronts.
At this very time Mr.
David Comey, members of the Union of Concerned Scientists and others whom we had hoped would be available to direct their efforts toward priparation for the rulemaking proceeding, including preparation of document and witness lists, are busy in preparation for or are engaged in ECCS hearings in Point Beach, Pilgrim, Shorehain and Indian Point.
Additionally, notwithstanding the fact that a motion was made in the Point Beach proceeding to abate ECCS hearings subject to the rulemaking, proceedings (a course of action which was approved by the Director of Requlation at the meeting, if, not encouraged), the Regulatory Staff did not support the request in that or any other proceeding leaving us to wonder whether the Director gave contrary instructions to the-Staff or whether one or more members of the Director's l-ega. staff is not pleased by.the,position the Director took at the November 29 meeting.-and is trying to scutt.le his efforts.
Mr. L. Manning Muntzing December 9, 1971 Page Six Thus the failure (for what.evc(r rea'_;on) of the Regulatory Staff to take a position consistent with what we believed to be the Director's position at the Novenduer 29 meeting has resulted in o;inions in Point
'Ih and 1ilqrm deaKling with the orocedural aspects of ECCS, th, scheduiing of an ECCS hearing in Shoreham to eIn on January 4, 1972 approximately three weeks before the proposed rulemakinq and a certification reauest in indian Point by Chairman Jensch regarding the leaCla and scientific basis for the Interim Criteria.
Whether one agrees or disagrees with these Board rulings, one thing is certain:
they all detract from the kind of consolidated effort we discussed at our November 29 meeting.
The Commission cannot, in all fairness, expect Intervenors to continue ECCS hearings in various licensing hearings and at the same time prepare for an adjudicatory rulemaking proceeding.
Such a result makes absolutely no sense and moreover is a waste :of time, money and the administrative process.
Intervenors cannot seriously entertain participation in a rulemaking proceeding without adequate tiie for preparation. Indeed, any counsel for Intervenors who acquiesced in such a procedure would be doing a disservice to his client, as well as to the public interest.
We would urge the Commission to come to a quick decision regarding our proposal of November 29 and in any event in an effort to demonstrate the Commission'S to Interveors, it.should begin to collate and is te ECCS documen.ts now while it is considering our proposal, and also abate ECCS hearings without impinging upon rights.of the various Intervenors.
Moreover, we would urge the Director of Regulation to consider having his staff take: a position before all current hearings to the effect that-no hearings on any matter be convened until subsecuent to the rule making proceeding, so as to avoid Intervenors-and their reoresentatives from having to divide their efforts in such a manner so as not,, perhaps, to be prepared for the ECCS ru....-..q proceeding.
Indeed, the very: fact that the Commission schduI Ue two major rulrakinq. procee dinc s
( CCS., and as lowV as -pracLi cable) within thjee davs of ech o
lther raise s
-1the
<stlon as to whether-.%
the Commission.
is seriously.. 1'nv;.ting p.blic
-participation.'
7 : /
If.:?
9 Mr.
L.
Manning Muntzing December 10, 1971 Page Seven We are still disposed Lo beli,: vn that the Director of Pequ.iation and General Coun.-el of. the Coinmission is interested in resolvinq this matter ai r I
owever C"-
is not so
- isosed, we should aooDreciahe cuick con r
Ve are str-n.ely Ooni.
ht the smd o
vare s
n are SU(Y qesLio.s are reauired to.be im.
...,n -, un(er l.w; and, accordinalv, in the absence cof ithe adonti.on of such suggestions we, on b aif of our clients, are very secri.usly co sidering a court action to enjoj.n the rulem 1
akinq p._ocedinas upon the qrounds Lha, iL rives Intervenors in various licensing hearinos of substantial due process.
Such a lawsuit is in our judgment a wasted effort; but such a lawsuit, also in our judgment, may be a necessary wasted effort, if adequate provision for an adjudicato-ry rulemaking proceeding, with allthe trappings of a fair hearing,-is not ordered with dispatch.
I am. authorized to submit the' views-'.contained in this letter on behalf of myself and my clients,, as well as on behalf of the following lawyers and their clients:
Thomas R. Arnold Lewis D.
Drain Harold P.
Green Oliver A.
Houck Irving Like.
Angus MacBieth Gregor I..:-.MQGregor Anthmony Z:, '. Roisman Sincerely yours.,:
MyrorKNj. Cherry.
m, c/lm cc:
Martin R.
Hioffi, ann,.Esq.
Lawyers listed.:bove 5.,