ML19329E703
| ML19329E703 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/23/1971 |
| From: | Graves H, Lowenstein R, Restrick J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | |
| Shared Package | |
| ML19329E695 | List: |
| References | |
| NUDOCS 8006170848 | |
| Download: ML19329E703 (11) | |
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9.
t APPENDIX A UNITED STATES OF A!IERICA
(
ATOMIC EUERGY CO:EIISSION In the Matter of
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CONSUMERS POWER COMP %1Y
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Docket Nos. 50-329
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50-330 (Midland Plant, Units 1 and 2)
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APPLICRIT'S MEMOPANDUM IN OPPOSITION TO THE MAPLETON IUTERVENORS' OBJECTIONS TO THE BOARD ORDER OF AUGUST 26, 1971 By the Eoard's order of August 26, 1971, the Mapleton intervenors were required to file their written evidence with respect to their contentions 3 and 4 by September 15, 1971. They have not done so.*
Instead, one of their counsel, Mr. Like has written a letter dated September 14,
.1971 which is, in effect, a motion for reconsideration of the Board's' August 26th order. As such, it comes so late as to raise serious doubt as to the bona fides of the intervenors; the letter should not be allowed to excuse the Mapleton intervenors from meeting the deadlines imposed in that order.
- They did file an affidavit of Professor Ernst Eckert on
.the feasibility of supplying process staan to Dow by means other Chan piping-fron a nuclear plant at the proposed site.
This has nothing to do with their contentions 3 and 4 but does relate _to their contention 5, which both the Board and Mr. Like regarded fron the ortset as a non-radiological issue under NEPA (See Tr. 3204, 3206 and 3207). Although it'is helpful to have Professor Eckert's affidavit in terms of laying the groundwork for the NEPA phase of this proceeding, its sub-mission does.not serve the purpose of paragraph IA of the
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Board's August 2661 order, which, as its heading shows, was
. to conclude the'subnission of evidence on " issues other than ECCS and environmental issues." (Initial caps omitted).
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1.
The Use of Uritten Evidenco The Mapleton intervenors take exception to the Board's order that "no further oral evidence will be received except by leave of the Board," asserting that it vi,lates due process and $556 (d) of the Administrative Procedure Act.
At the hearing on July I2,1971, af ter having been reminded that he would have to submit written evidence on contentions 3 and 4 (Tr. 3196 ), Mr. Like similarly asserted, that to require written testimony would violate the due process clause and the Administrative ^ Procedure Act (Tr. 3197). The Chairman said he disagreed but invited Mr. Like to file a brief on that, if he wanrud to (Tr. 3198).
Mr. Like filed no such
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brief but waited until the day before his evidence was due I
and made the same bald allegation of illegality. We submit that his continuing failure to support his assertion is
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itself indicative of its lack of foundation. However, we will briefly show that the law on this subject is contrary to the Mapleton assertion.
.The Mapleton intervencrs appear to rely on that part of the next to last sentence of 3556 (d) which states:
"A party is entitled to present his case or defense by oral or documentary evidence...."
They ignore the last sentence of $556(d) which provides, insofar as is relevant:
"In...
applications for initial licenses an agency may, when a
{s party will not be prejudiced thereby, adopt procedures for
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3 the submission of all or part of the evidence in written l
form".
Section 2.743 (b)~ of the Commission's rules provides in conformity with this sentence:
"Where the interest of any party uill not be prejudiced, the parties are encouraged to submit all or part of the direct. testimony of witnesses in written form, unless objections are presented and unless otherwise ordered by the presiding officer."
l In implementation of that provis ion, Judge Henry Friendly, writing for a three-judge District Court,in Long Island RR
- v. United' States, 318 F. Supp. 490, 498-500 (E.D.N.Y. 1970),
stated that $556 (d) means that a party may not compla*n about an agency's requiring the submission bf " evidence in written form un3 ers he can show that this prejudiced him s' '
in the presentation of his casc.* No such showing has bet v.
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made here and no prejudice has been alleged.
- 0f course, if the written evidence of opposing parties were to produce material disputed issues of fact, the Mapleton intervenors could request and the Board could consider
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whether there is a need for cross-examination with regard to those particular issues. Clearly, in' the absence of material 1
disputed issues of fact there is no right to cross-examination, i
either under the Constitution or the Administrative Procedure
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Act.
Ashworth Transfer,Inc. v. United States, 315 7. Supp.
l 199, 202-03 (D.. Utah 1970): Allied Van Lines Co. v. United
. States, 303 F. Supp. 742, 748-49 (C.D. Cal. 176F) ; National Trailer Convoy, Inc. v. United States, 293 F. Supp. 634, 636 (N.D. Ckl. 1968).
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. I Mapleton's argument that the requirement of uritten evidence discriminates against the intervenors because not similarly applied to applicant and staff is so much bunk.
The Applicant has submitted the PSAR, its environmental report, various technical topical reports and much additional evidence in writing. In addition, the applicant will submit further written evidence uith regard to ECCS and a written supplemental NEPA report. AEC staff has submitted a written Staff Safety Evaluation as well as additional written evidence. The staff will file a written detriled environ-mental statement. Applicant and staff are required by paragraph IA3 of the Board's August 26th order to submit written responses to the intervenors' submission filed under r,
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paragraph IA2.
In cases of such complex factual and. technical evidence
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involving potentially such wide-ranging issues as the present proceeding, the Board is clearly justified in imposing the requiresent of written evidence. In the absence of such a requirement, it is hard to see how this case could ever be brought to a conclusion.
Finally, the Board has held that contentions 3 and 4 are challenges to Part 20 of the Commission's regulations (Tr.
2953-54, 2955, 2956-57, 3209-10). Therefore, they are not
-properly at issue here unless the Mapleton'intervenors make a proper showing, by offer of proof, that there is
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substantial doubt of their validity as applied to this case.
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Calvert Cliffs Memorandem, CCH ATO -IIC ENERGY LAU REPORTER 111,578.02. The rule of the Calvert Cliffs Memorandum has not been affected by anything in the D.C. Circuit's decision in Calvert Cliffs.
2.
The Health and Safety Iseuest The Mapleton intervenors argue in their letter (pp.1-4) that it is improper, under the new Appendix D to Part 50, to require any evidence to be submitted, even as to radiological or health and safety issues, before the filing of a revised environmental report and a detailed statement by the applicant and staff. This position is in conflict with t'.e provision in Section D1 of Appendix D which directs the Board in pending
{J hearings to "p oceed expeditiously with the aspects of the application related to the Commission's licensing requirements under the Atomic Energy Act pending the submission of Environmental Reports and Detailed Statemens...." This aspect of the Board's order is in direct-implementation of that provision.
Mr. Like, at pp.2-3 of his letter, argues that Mapleton contentions 3 and 4 are really environmental and that it was therefore improper to require evidence to be filed in suppcrt'of them by September 15th. This is incon-sistent with the statement of Mr. Ginster, at the hearing on July 9th, in which he argued that they were health and safety issues, not environmental issues, and thus within
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' the Board's jurisdiction under the old Appendix D (Tr. 2954).
Patently, these contentions 'rclate to radiological hazards and therefore were part of this proceeding before the D.C. Circuit's Calvert Cliffs decision.
The Mapleton intervenors allege (letter, p.3) that their experts need additional time to prepare testimony as to contentions 3 and 4 because of trips abroad or academic
. commitments. Normally, we would be hard pressed to oppose a reasonable extension of time for such reasons but we think that, in ruling on this request, the Board should consider the many unexplained failures of the Mapleto,n intervenors t'o meet deadlines set by the Board'in this proceeding.
The Board's erder dated December 8, 1970 required them
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to set forth the legal issues they would raise by Dec' ember 11, 1970. They defaulted on that order. The matter was taken up at the January 21 hearing and they were ordered to file a statement of their contentions within 20 days thereaf ter (Tr. 54 4-46). At the May l' conference, Mr. Ginster'adedtted being in default and promised to file a statement of factual and legal contentions, as well as the names of his expert witnesses, within two weeks (Tr. 1218 -19 ). His statement of June 8,1971 was filed in response to that directive. The Board found it inadequate and asked the Mapleton intervenors for an additional specitication of contentions on June 24, 1971, Mr. Ginster having been absent.during the earlier days c
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of the hearing. Th'ese were finally supplied on July 12, 1971.
The Board's order of IhI 18,-1971 required any offer of proof by any intervenors with regard to the validity of Part 20 to be filed by June 7, 1971. The Mapleton inter-venors defaulted on this obligation, too. Moreover, the Mapleton intervenors were told on July 9th and 13th that the Board would, require a written showing in support of their contentions 3 and 4 (Tr. 2956-57, 2960, 3209-10). As they have been on notice of this requirement since May and were specifically told that it applied to their contentions 3 and 4 two months ago, their plea of insufficient time should not evoke sympathy.
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Mapleton intervenors' general statement that they were unable to submit testimony by September 15th because of trips abroad and academic commitments is not worthy of respect in this proceeding. Nothing is set forth as'to why the ample notice of the Board requirements was inadequate or as to why Mapleton intervenors did not request additional time earlier. No facts were set forth to show that the' trips or academic commitments could not be postponed. The statement is insolent in its disregard of intervenors' responsibilities to conduct this proceeding in good faith and to use their best effort,to adhere to.the time schedules set forth by the-Board.
In view of their blatant disresp3ct for,and disregard of,
. Board deadlines-in the past," preclusion on contentions 3 and
'4 would.be proper.
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.s Mr. Like argues (letter, p.5) ti.at 15 days is not enough time in which to respond to intervenors' next submission on ECCS. This may or may not be true but what the order requires is not a response to applicant's submission but "a detailed statement 'of the nature of the affirmative evidence which they intend to offer [on ECCS] in sufficient detail to provide Applicant an. opportunity to prepare to A
meet it. " This is something which they should have becn f
-working on since Ju,1y 13th, when they were told they could participate on this issue (Tr. 3204-05) and should still be
-working on now.
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4.
Distinction Between NEPA and non-NEPA Issues
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The.Mapleton intervenors argue (letter, p.4) that no line may be draun between the environmental and non-environmental issues. 'We discussed this question at pp. 3-5 of our letter to the Board of August 18th and will not repeat,that discussion here. Suffice it to say that the Commission
'itself draws this distinction in Section D1 of the new Appendix D when it directs Boards to proceed expeditiously with the radiological issues while waiting for environmental reports and detailed statements to be filed.
5.
Discovery and. Statement of Issues on MEPA, Issues The Mapleton Intervenors argue (letter, p.5) that there
.should be no NEpA discovery 'before the detailed statement is D
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filed. Houever,Section D of the new Appendix D doesn't prohibit it and it will move this protracted proceeding alcng. It is consistent wkth "the Commission's continuing objective of minimizing undue delay in the conduct of its licensing proceedings" reiterated at p.3 of the new Appendix D.
Of course, if the supplement to the environmental report or the detailed statement raises new matters, this would be without prejudice to intervenors seeking discovery as to those matters. Thus, no one would be prejudiced and the proceedings would be expedited.* Similarly, the intervenors statements of their views on NEPA questions would be without prejudice to supplementation if necessary in the light of the later filings.
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Proposed Filings As the August 26th order hade partial proposed findings optional, there is no cause at this time for anyone to be concerned about the Board's invitation for any parties to file them before the hearing is concluded.
September 23, 1971 Respectfully submitted, N N b.tw %-
Wh LOkiENSTSIN AND NEWNAN 1100 Connecticut Ave., N.W.
Washington, D.C.
20036 Of Counsel:
Attorneys for Applicant Robert Lowenstein Consumers Power Company Harold P. Graves John K. Restrick Jerome E. Sharfman Richard G. Smith
- This uas the basis for our understanding in August with counsel that discovery should proceed and which we reported to the Board in our letter dated August 18, 1971 (p.2).
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June 10, 1971 3 46. Atto rg J. t..su..
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400 North River Road West Lafayette, Indisna 47906
Dear Mr. McCue:
Pursuant to our conversation at the preheari=g on June 7, 1971, attached hereto are the following BEJ prcprietary drawings:
142139E-6 Arrange =ent Reactor Vessel Sections
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Ik2136Z-6 Arrange =ent Reactor Yessel Long. Section 27106F-1 Internals Gene'ral Arrange:ent 148645I-l Plenu:2 Cover Asse:bly 115563D-0 Centrol Rod Asse=bly 111432D-0 Core support shield Details 27101F-0 Core Barrel Asse=bly 270997-0 Upper Grid Assembly lL86582-1 Upper Grid Rib sectica 1486522-0 Lover crid, Flov Distributor and Guide Tube Assesbly 27100F-3 Lover Gril Assembly lhS66kI-1 Lover Grid Top Rib Section 109503D-0 Lover Grid Distritutor Plate 1633693-0 Flov Distributor Assembly 32SC6F Mark B3 Fuel Assestly 115676D Pressurized Fuel Rod Asse=bly 1486682-1 Control Rod Guide Details 1186672-1 Rod Guide Brazesent 1636152-0 Incore Instrument Guide '"ube Assembly
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e Mr. Kenneth R. McCue 2
June 10, 1971 C-You may refer to pages 3-29 through 3-85 of the PfJ.R for a detailed descriptien of thor =a!, hydraulic and mechanical design infomation as a svpplement to the info:. ati n contained in the drawings. Pursuant to our cgreenent at the prehearing ccnference, these dravings are fur-nished pursu nt to the protective order previously agreed upon by the pcrties. It is understood that intervenors shall at no ti=e challenge or clais relief frm the protective order or the proprietary nature of f
this info:r.ation. The drawings and infomatics contained therein cre to be used and available only to Mr. Myren Cherry, Mr. David Cemey, Mr. Ken ::cCue end I r. Criendo Doyle. All notes cade pertaining to the drawings and the infor:stien centained therein are to be turned over to BW no later then the temination of the hacring on the Midland pro-ceeding. Intervenors shall make no copies of these drawings er of the notes.
It is further understood that Censu:.ers Power Cospany or.
the Babcock & Wilecx Co=pany shall be remitted to reviev. the doct:ral dissertction teing prepared by ! r. McCue en the regulatcry process c.
the Ate =ic Energy Co::=1ssion to ensure that r.one of this proprieta /
material is centained therein.
Will you please sign this letter in the lower left-hand corner and return a copy of this letter to me to indicate your receipt of these drawings cnd.your agreement with the provisions centained in this letter?
Yours ver;* truly, Jga/pt John K. Restrick 0
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