ML19329F187
| ML19329F187 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 03/30/1971 |
| From: | DOW CHEMICAL CO., KAYE, SCHOLER, FIERMAN, HAYS & HANDLER |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19329F184 | List: |
| References | |
| NUDOCS 8006200855 | |
| Download: ML19329F187 (16) | |
Text
"*
El- APR 21971 1 *W coc u i NumBut emymQW 77 UNITED STATES OF AMERICA M & E fAf= b 4 8 O 4 p ATOMIC ENERGY COMMISSION
= -
In the Matter of )
) -
CONSUMERS POWER COMPANY ) Docket Nos. 50-329
)
Midland Plant, Units 1 and 2 ) 50-330 MEMORANDUM SUPPORTING DOW OBJECTIONS TO SAGINAW INTERROGATORIES This Memorandum is submitted in support of The Dow Chemical Company's ("Dow") objections to the Inter-rogatories served by Intervenors Saginaw Valley Nuclear Study Group, et al. ("Saginaw") by mail on March 22, 1971.
All four groups of Interrogatories are entitled "First Set". To the extent that this suggests an effort to reserve a right to serve supplemental Interrogatories k other than with respect to certain environmental matters in accordance with future Orders of the Hearing Board, we object so that silence not be considered acquiescence. i Nature of Required Good Cause Showing i
The AEC Regulations require that " good cause" I
be shown in order for a party to obtain discovery. As stated in our November 25, 1970 Memorandum, the pertinent !
t pages of which are reproduced and annexed for convenience, l
such " good cause" requires something more than simple l relevance. I We believe that it means that there must be a 1 showing that the discovery sought is warranted by some area of substantial concern sufficient to justify the burden, ,
8006200 [8 i
m C
- y i
4 Edelay an'd other cons'e'quences of inquiring into the matter in depth.. We1believe the statements of the Board confirm this ' vie w.
In application, " good cause" will require the exercise .of considerable discretion in balancing the con-flicting equities of the desirability for disclosure against ;
i the resulting burden, delay and the like. At this late I point in the~ Midland proceeding, more than one-third of a year after the first session, the degree of disclosure should be far'more restrictive than it would have been on. November 14, 1970,. when the first conference of counsel was held; or on December 1, 1970, when the first Hearing was held; or on January 7, 1971, when the Saginaw Intervenors were origi-
- nally directed- to_ submit their Interrogatories; or on January 21, 1971, when they had been fully advised of the e
extent of objections of the other parties and of the inten- ,
tions of.the Board; or.on February 11, when they were to have Lmade a ' good faith submission of substantial' partial Interrogatories; or 'at any other time earlier than March 22, 1971, when some tuo hundred fifty pages of Interrogatories
. wore finally deposited in the _ mail -- without so much as a sirigle _ Interrogatory having been previously served, . despit.c
- the five Saginau _ assurances that ~ they would try to serve a
2 .
a
something earlier.*
The degree of disclosure required at this late date should also be considered in light of the obvious purpose for which the Saginaw Intervenors have used the months of delay which they" demanded and obtained, by -
- "I have stated in my affidavit that I would make(Atevery effort to_ submit them on a piecemeal basis." p. 548)
Chairman Murphy: "You did say, as part of your motion, that you would undertake ' to do piecemeal, to submit inter-rogatories in batches and as they became" availab3 e. Or am I misremembering." Mr. Cherry: ...I would think that when a section is completed, you know, I would have no obj ection ' to mailing those on." (At p. 596)
"Yes, I would be more than willing to submit my interro-gatories section by section. I can't tell you when I will have my first section done." (At p. 5 97 )
"If anything more than my statement as a lawyer that I will do my best to put them in piecemeal is wanted, I am afraid I can't give it." (At p. 598)
"I will make every effort to begin filing interrogato-ries even earlier than the three-week period, but I do regard as an overall commitment of the Board that I have until the 22nd. I will file as many as I can as early as I can. And as soon as I get a section done, the proofreader will put it ~ 1n the mail." (At pp. 606-07)
Even superficial-review of the Saginaw Interrogatories l confirms that they have been'in process for a good long time, are in large part - severable and that many were in fact in final form and could have been served long ago i had the Sa61naw Intervenors chosen to do so. Consider, for example, Saginaw/AEC Interrogatory 320, "there is no. Interrogatory Number 320," indicating that subsequent numbers and cross-references had been selected earlier.
Had all the pages been ' typed in one sitting on March 22 by several typists, there would have been many pages like Saginaw/ Applicant page 117, indicating sectional typing.
l i
3 .
l
(
approval of the Board or by default. Rather than ask questions-directed to the merits of the safety issues, they have continued with impertinences and irrelevancies suggestive of what they will do with whatever additional
< time is given'them.
- Saginaw Has the j Burden of Showing
- " Good Cause".
In an effort to pry loose as many as possible of the Saginaw Interrogatories at the earliest time, the other parties at the January 21 Hearing waivedithe require-ment that Saginaw in the first instance make a showing of L " good _cause". Instead, the other parties agreed that they would answer whatever Interrogatories they considered pro-
. per ' or non-burdensome wit hout a " good cause" showing.
_ This procedural ,shif ting of' the burden of coming forward _ with objections was not intended to and did not
' shift the burden of making a " good cause" showing. Accord-ingly, the Saginaw Intervenors must supply the necessary showing of " good cause" with respect to any Interrogato-
- - ries to which a party objects on any ground.
i
~
Dow Objections To'Non-Sacinaw/Dow 'Interrocatories Dow has not made any objections to the Saginaw Interrogatories directed in the first instance to other
- 11 o _.
e parties, except to the extent that thoce Interrogatories are repeated or incorporated by reference in tre Saginaw/
Dow Interrogatories.
However, Dow will object to such other Interro-gatoriec j.f. response will jeopardize the May 17 trial date. ,
Thus, Dow'has no objection 'if Applicant chooses to res-pond' to the Saginaw/ Applicant Interrogatories, for example, in sufficient time for Saginaw to process such responses <
without interference.with the May 17 schedule. However, if the timetable for_ responses and processing is such that j
jeopardy results, Dow requests the right to object on the ground . that " good cause" has not been shown sufficient to warrant further -delay of the trir.l. '
We do think it appropriate to add an expression of concern that any response to the Saginaw Interrogatories will be seized upon as a cause for delay of the May 17 date.
The lengthy InterrogatoriesJare in large part on their face completely immateriai to any real inquiry into the safety issues of the Midland nuclear plant; some are indeed so irrelevant or impertinent as to be embarrassing. They seem 'to have been draf ted by simply proceeding down the Petitions and PSAR ia law student fashion, line by line, or with earlier al]egations of bad motive and bad faith in mind,~and not with an eye to inquiring into what might be 5
h- - -
i i
E the important sa'fety issues to be resolved; for example, !
no question has even been asked about Dow's brine mining over.the years and its geological significance. The Saginaw Intervenors apparently had not yet even bothered to inspect the volume of Applicant's documents made avail-able to them beginning December 1, 1970, and accordingly did not even know when serving the interrogatories the r extent to which the information sought had long since been available to them.# -
We have resisted the temptation to object to everything the Saginaw Intervenors have asked of any party, although their record in this proceeding to this point suggests this may be a mistake similar to that of Applicant's i efforts to satisfy Saginaw counsel by its voluntary pro-duction of documents on December 1, 1970.
Explanation of i
Dow Objections.
Below are set forth eleven separate categories l
)
of objections Dow has specified with respect to the Saginaw/
Dow Interrogatories. In each case where objection has been made, Dow asks that Saginaw specify the alleged " good cause" n
Let us hope that they have now finally _ begun. "Upon the filing of the' interrogatories I will dispatch two people to begin .looking at documents while the answers are being
~
prepared.". (Statement of Saginaw counsel, January 21, 1971 at p. 558)
, f I
I in support of that Interrogatory and that Dow have an f
opportunity to respond.
Dow has not objected to a number of Interroga-tories, the Responses to which will have been served on l the Saginaw Intervenors as much in advance of the April 2 , j Hearing as possible. Some of the Interrogatories to which Dow will have responded are just as improper as those to which objection is interposed. The reason for not obj ec-f ting in such cases will be because disclosure does not l
create-an undue burden or involve any possible jeopardy ,t to the May 17 trial date and, as stated at the January 22 i Hearing, will take less time and trouble to answer than will j i
objection, response and argument. With this explanation, !
Dow hopes that it _ will not be faced with the contention l
that an objectionable question must be answered because it is similar in subject to one which has been answered volun-tarily.
Dow's specific categories of objection, in addi- ,
tion of course in all cases to the lack of a showing of
" good cause", are as follows:
A. Standinc: Interrogatories inquiring '
into allegations of a Petition to Intervene that bear upon the Petitioner's standing I and interest. The granting of a Petition does not enlarge the issues.* '
- Soc, In re Public Sarvice Co. of Colorado, CCH Atom. En.
L.-Rep. 511,570.at p. 17, 685-2, Initial Decision, A.S.L.B.
(Arthur W. Murphy, Chairman), September 16, 1968 7
i 1,
i l
]'
B. Publicity: Interrogatories inquiring into matters relating to community support _for or against the proposed nuclear plant. The issue in this proceeding is whether the proposed plant is safe, not whether the community is in favor of or against it.
C. Other Epis' odes: Interrogatories inquiring into alleged occurrences on other occasions, such as the " Rocky Flats" episode. What has happened at other times and in (ther circumstances is immaterial, ,
and inquiry _into such matters could be even i-more lengthy than into whether or not the Midland Nuclear plant should be constructed.
Furthermore, some of this material involves classified informatdon.
D. Opinions: Interrogatories inquiring into' opinions, legal, scientific or other-wise. Except in unusual cases, which are not involved in the present interrogatories, such opinion evidence is as available to the Saginaw intervenors as to anyone else. In most cases, such interrogatories seem designed only to obtain information for use on cross-examination.
E. Content and Meaning of Documents:
Interrogatories inquiring into the meaning or effect of documents, which speak for them-selves. The ultimate meaning and significance will be for the Hearing Board to determine, if appropriate, upon'the basis of the documents and argument. ,
F. Developmental Matters: Interrogato-ries inquiring into developments which led up to a final system described in the PSAR.
An example is with regard to development of the tertiary steam system for supplying pro-cess steam to Dow. The earlier design of a secondary steam system and the reasons for ,
changing to a tertiary system introduce wholly new and immaterial issues, of no i apparent significance insofar as the safety features of the tertiary system are concerned.
l m J
I i
.. I.
i The issue here is whether the plant as proposed is cafe, not.whether another earlier system may be less safe than the final syneem.
G. B'usiness Confidence: Interroga-tories inquiring into areas which Dow regards as confidential business information and which it would prefer not be revealed to its competitors. -It includes detailed cost information, such_as with respect to arrange-ments with Applicant not previously made public, methods of production using Appli-cant's process steam and th'e like.
H. Jurisdiction: Interrogatories inquiring into matters which are outside the jurisdiction of the Hearing Board, such as with respect to the possibility of sabotage.#
I. Redundancy: Interrogatories asked ,
of several different parties and with res- l pect to .which another party than Dow, '
usually Applicant, is more well qualified to respond by reason of information, participa- i tion or otherwise. These include the first 232 Interrogatories directed initially at Consumers Power, but incorporated by reference in Interrogatory 1-232 to the AEC and the Dow and Midland Intervenors. Discovery is de-signed to elicit information -- not for purposes of cross-examination; accordingly, there is no reason why more than one party should be required to furnish the same information.
- Siegel.v. Atomic Enercy Commission, 400 F.2d 778 (D.C.
Cir. 1968); In re Virrinia Electric & Power Co., CCH ,
Atom. En. L. Hep. 111,593 at p. 17,733-6, Initial (Decision, A.S.L.B., February 9,1971; In re Pacific Gas
& Electric Co., CCH Atom. En. L. Rep. 111,S90, Initial Decluion, A.S.L.B., December 8, 1970; In re Florida Power & Lirht Co., CCH Atom. En. L. Rep. tll,2S9, Memo-randum & Oroec, A.E.C., February 20, 1967 -
l i
,i i
I l
1 J. Information of Other Partlen: I.
Interrogatorie: directed only to Dow, and '
not to other prtrties , requesting informa-tion which is either available only from ,
i another party or which that other party would have ir, more complete and/or readily-available form.
K. Remoteness: Interrogatories seeking information whose relevance is so slight and tne burden of response in terms of time and/
or ef fort so substantial by comparison, that objection for lack of good cause is justified.
CONCLUSION 1
Dow requests that the Hearing Board rule on all objections to Interrogatories on April 2 and April 3 and I
fix a schedule for responnes which will not jeopardize the present schedule calling for reconvening of the Hearing on May 17, 1971.
Dated: New York, N . Y.
Marc h 3 0, 1971.
Respectfully submitted:
I KAYE, SCHOLER, FIERMAN, HAYS
& H ANDLER .
i By 2 Trial At torneysWor tne Dow Cheraical Company 0F COUNSEL:
Milton R. Wessel Allen Kezsbom Joseph P. Bauer and William A. Groening, Jr.
Jameu N. O'Connor
t C. " Good Cause" for Discovery.
The regulations. governing discovery in connection with this proceeding specifically require that " good cause" be ' established before discovery will be permitted. 'Thus, t-10 C.F.R. $ 2.7hO (a), dealing with depositions and inter-rogatories, states that:
"On motion and for good cause shown, the Commis31on may order that the testimony of
- any party or other person be taken by deposition on oral examination or written >
interrogatories" (emphasis added).
A.id 10 C.F.R. $ 2 741 (a), relating to document production, f provides that: l "On motion of any party showing good cause and on notice to all other parties.
the Commission may . . .[o]rder any party ~
td produce and permit the inspection . . .
._of any designated documents." (emphasis -
4 added).
Unless all. meaning is to be read out of the
- good cause requirement, it is clear that the regulations grant the parties less than an unfettered right to explore the records and conclusions of each other. What these limits should be must'lx) considered on a case-by-case- basis, but certain guidelines seem clear: .
- 1. For one thing, there would seem to be no basis for permitting the applicant to have discovery of the opposing intervenors. The applicant's task -- no different than in the uncontested proceeding -- is to' establish the safety and desirability of its proposed plant. The applicant
h.. .
n
- should already have at its connand all the facts needed to make its presentation. After all, the applicant should have
.been ready to proceed if the hearing had been uncontested.
And surely any inquiry into the bias or prejudice of the .
intervenors is irrelevant.
- 2. ,
By a parity of reasoning, the latitude to be given to the intervenors in a contested proceeding should be determined in the context of the fact that they perform ,
the function that is the Board's in an uncontested proceeding.
Accordingly, if the Board in an uncontested proceeding would not engage in a wholesale " fishing expedition" into the files and the thoughts of the applicant, there is no basis -
why such sin expedition should be permitted the intervenors.
" Good cause" simply cannot mean that it is enough that the applicant has information at its disposal which the intervenor would like to review.
T'he regulations themselves make this clear. Indeed, the regulations make clear that " good cause" is not established merely by the fact that the material available
. i to the applicant is relevant to the issues involved in the hearing. For af ter stating, in the paragraphs quoted above, that " good cause" is a prerequisite for discovery, the l
regulations specifically provide that any discovery which is l permitted will encompass all' materials relevant to the subject j matter of~the discovery: 10 C.F.R. $ 2.740 (d) provides l
. l
l thst "the deponent may be examined regarding any mntter, !
not priv11cced, which in relevant to the nubject matter !
involved in the hearing;" and 10 C.F.R. $ 2 741 provides !
t that the ' documents that are discoverable upon good cause are those that are " relevant to the subject matter involved in the pending action (10 C.F.R. $ 2.741(a)(1))" or appear
" reasonably calculated to lead to the discovery of ,
admissable evidence (10 C.F.R. $ 2 741(b))". Manifestly, the regulations would be redundant if relevancy alone were the test of " good cause". Accordingly, the opposing ,
intervenors should be required to affirmatively establish their need for discovery individually as to each contention
. I they inten'd to raise.
._3. By the same~ token, because good cause is a requirement.for each type'of discovery, the opposing l intervenors should be required to establish why differing methods of discovery are required on the same issue. In this regard, it seems particularly clear that the reSulations do not-contemplate both written interrogatories and oral depositions of the same party on, the same matter. Rhther, 10' C.F.R..$ 2 740(a) establishes these two forms of discovery as alternative:
"On motion and for good cause shown,
. the Commission may order that the testimony ;
of any party or other person be taken by deposition on oral examination or written
,. interrogatories." (emphasis added).
~'
_ r-
, y ._, __ , ,_ . - - . _ _ . - . , _ -----
I
' Oral depositionu neem particulncly inappropriate in our context. The issues hero. involve engineering and -
1
- scientific matters; they -do not' involve the kind of issues
'that normally require cral testimon'y (e.g., eye witness reports or statements of conversations). Consequently, there would seem to be no reason to permit oral depositions of- applicant's- experts or staff if applicant's data has already been e11 cited through written interrogatories and/cr document production. Indeed, there would seem to be no reason'to allow oral depositions -- which are time consuming
~
and would tend to be incomplete and inaccurate in regard ,
to the types of issues involved here -- where written ,
interrogatories or document production could achieve the i l
same end; or to allow document production where a written '
1 interrogatory will produce a succinct distillation of a -
stack of papers.
Moreover, it should . tot be sufficient to establish
" good cause" for an oral deposition that the proposed deponent wiil be a witness at the hearing and the deposition would be helpful to the intervenors in preparing cross-examination. If'such a basis for a deposition is sustained, the discovery process will be perverted into a full-blown advance hearing. It is significant in this regard that the Federal Trade Commission, whose experience with contested
-administrative proceedings far exceeds that of the AEC, has E '
e Q Y n -
"W
4
. cpacifically provided in its regulations that the " good coune" realtit rement prec1tulen ilt poni t.tonn having t,hnt l . limited objective.# We submit that the FTC's experience should profitably be followed here. .:
In sum, the only discovery that should be permitted is that by the opposing intervenors which is f clearly required by a demonstrated need going beyond mere relevancy and the scope and nature of the discovery allowed :
l should be tailored to accomplish the objective of the
]
search with.the greatest expedition and without redundancy. f l
In this connection, Dow would like to raise f
its objection to the applicant's offer to turn all of its ;
documents over to the opposing intervenors. While we f appreciate that the offer was made in a spirit of judicious ,
1 concern 'for a full and complete airing of the issues, we ,
talieve"it contravenes all of the principles enumerated i
e I 16 C.F.R. 5 3.33(a) provides in part as rollows: l l
" Insofar as consistent with considerations of fairness and the requirements of due process and the rules in this part, a depo'sition should not be ordered when it - --
appears that it will result in undue burden of any other party or in undue
- -. delay of the proceeding, and it should not be ordered to obtain evidence from a person relating to matters with regard to which he is expected to testify at the hear,ing, or to obtain evidence which there is reason to believe can be presented at a hearing without the need for deposition, ;
~
o'r to circumvent the orderly presentation .
_. of evidence at the hearing."
l 13 - l l
e s - - - -
l
)
i above and will prove self-defeating. For we are certain i
that.many of the applicant's documents deal with incontestable '
aspects of the project, many others .are irrelevant, and, without doubt, a considerable number contain data that could be distilled int'o rela'tively succinct interrogatory answers. The consequence of turning the documents over to the intervenors en masse will mean that the intervenors will have to wade through them, which can only produce unwarranted delay.
D. Ordering the pre-hearing and hearing procedures.
Assuming that a start can be made on December 1 toward simplifying and clarifying the issues, and that the I
guidelines for discovery can be established at that time, '
we believe the next priority is to determine the order in i
which matters should proceed, bearing in mind at all times !
the ultimate goal of achieving a sound consideration of all relevant issues in an expeditious manner.
We believe that the sound approach is to contemplate an issue-by-issue hearing with discovery proceeding in tandem with hearing sessions.
Lest there be any misundersta'nding,
.we do not ,mean that discovery should still be in progress on an issue when that issue is being considered at the hearing. We mean that the hearing should proceed.on isolatable issues where no discovery is needed and as to which discovery is
-. completed at the same time that discovery is in progress on
. -~
_,