ML19329F655
| ML19329F655 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/14/1971 |
| From: | Wessel M DOW CHEMICAL CO., KAYE, SCHOLER, FIERMAN, HAYS & HANDLER |
| To: | |
| References | |
| NUDOCS 8007100577 | |
| Download: ML19329F655 (19) | |
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION ch' fp7rr3 9 In the Matter of
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Docket Nos. 50-329 CONSUMERS POWER COMPANY
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50-330 Midland Plant, Units 1 and 2
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THE DOW CHEMICAL COMPANY'S MEMORANDUM REGARDING INTERVENOR SAGINAW VALLEY NUCLEAR STUDY GROUP ET AL.'S DISCOVERY THIS DOCUMENT CONTAINS POOR QUAUTY PAGES 80 07100 $h}
KAYE, SCHOLER, FIER M AN HAYS & HANDLER 425 PAAK AVENUE NEW YOR M, N. Y, 4 0022
UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of
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Docket Nos. 50-329 CONSUMERS POWER COMPANY
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50-330 Midland Plant, Units 1 and 2
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THE DOW CHEMICAL COMPANY'S MEMORANDUM REGARDING INTERVENOR SAGINAW VALLEY NUCLEAR STUDY GROUP ET AL.'S DISCOVERY Dais Memorandum is submitted in response to the Chairman's suggestion at the April 3 Hearing (Tr. p. 942) that The Dow Chemical Company ("Dow") summarize the extent to which it has complied with Saginaw/Dow Interrogatory 311, or its reasons for non-compliance where objections have been made.
Saginar/Dow Interrogatory 311 seeks identification of all documents specifically called for in the first 310
'Saginaw/Dow interrogatories.
The substance of Dow's response to Interrogatory 311 is the same as its responses to the earlier interrogatories, and its reasons for objecting to disclosure are identical.
This Memorandum is therefore necessarily also a summary of the arguments, objections and rulings at the April 2-3 Hearings.
It might be useful. at the outset to refer to the fundamencal difference between the Saginaw Intervenors, on
r the one hand, and Dow and (to a lesser extent) other parties supporting the application, on the other.
The Saginaw Intervenors contend that they should be permitted to discover into anything and everything which may be relevant:
"But if there is a fact, Mr. Gnairman, lying in a field in France which ir going to be helpful in this hearing in the public interest and nuclear safety, we had better get it (Tr. p.
839)
Although the Saginaw Intervenors later referred to the " field in France" analogy as "an inadvertent statement,"
(Tr. p. 844), over and over the same concept was repeated.
"I was just trying to make the point that an Investigation should be free here."
(Tr. p.
845)
"Mr. Chairman, I asked for all of the [Dow] people whose area was nuclear technology because I think I am entitled to find where witnesses lie in the United States."
(Tr. p.
859) (underlining added)
It is Dow's position, in sharp contrast, that dis-covery should be permitted only where there is reasonable cause to believe that the information disclosed will bear in a significant fashion upon some specifically identified i
area of real nuclear concern with respect to construction
~ of the Midland plant.
Any other. conclusion would make a shambles of AEC licensing proceedings.
It would give an intervenor power 2
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to burden, harass and delay, of such magnitude that for practical purposes a hearing fair to all parties, including the public, would be impossible.
It would create for this administrative process, that same chaos which the early i
Federal. Rules created for the judicial process in the so-1 called " big case."
It would deny rather than promote justice and the public interest.
i 1.
Response to Saginaw l
Interrogatory 311.
The following is responsive to Saginaw/Dow Interrogatory 311, as modified during the argument on 3
April 3, 1971:
(a)
There are no documents responsive to this reques t.
Dow has not participated and does not now intend to participate in any way in the designing, constructing or operating of the proposed Midland plant.
1 (b)
Dow has objected to Saginaw/Dow Inter-rogatories 243, 245, 246 and 251, which seek to inquire into the Dow Board of Directors' report and any other evaluation made by Dow of the pro-posed Midland plant.
In order to expedite consideration of the request, the Chairman requested that Dow specify any reports with respect to final systems included in the PSAR, as distinguished from reports as to preliminary or rejected systems, and notes, memoranda and similar underlying documents (see Tr. pp. 868, 869, 871).
As stated at Tr. p. 916, Dow's docu-9
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-ments responsive to this Interrogatory are included -in the five-page schedule of Dow docu-i ments submitted at che December 1,-1970 Hearing
-(Tr. pp. 432-3) in accordance with the discussions
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at the November 17 Hearing (Tr. pp. 118-19, 123, 125).
Exhibits J, K and L annexed to Dow's March 29 Responses to the Saginaw/Dow Interroga-tories are not within this category because they do not pertain to any evaluation regarding sit-ing, designing, constructing, safety or proposed operation.
i Dow s reasons for not producing these documents are summarized below in Section 2 of this Memorandum, "Dow Evaluations."
(c)
No documents are listed in response to this request because Dow's objections to the furnishing of discovery regarding costing matters in this connection were sustained by the rulings with respect to Saginaw/Dow Interrogatories 234, 235, 236, 238, 252, 254, 255 and 267 (d)
There are no such documents.
Dow has never made a decision to approve of a participa-tion in any way in the designing, constructing or securing of a construction permit for the pro-
. posed Midland plant.
This. Interrogatory is not interpreted as inquiring into Dow's decision co intervene in the present licensing proceeding; were it to be construed in that fashion, Dow would add the objections of attorney-client privilege and attorney's work product to the objections previously submitted.
(e)
All documents responsive to this request are either attached as Exhibits A-L to Dow's March 29 responses to Saginaw/Dow Interrogatories 253, 287, 295 and 307 (except the Dow/ Applicant contract, which is being produced separately by Applicant); or are objected to for the reasons set forth below in Sections 2-5 of this Memorandum; or are with respect to Interrogatories the objec-tions to-which were sustained at the April 3 Hearing, as referred to in Section 6 of this Memorandum.
2.
Dow Evaluations.
Saginaw/Dow Interrogatories 243, 245, 246 and 251 seek discovery with respect to Dow opinions as to the desir-ability of the proposed. Midland nuclear plant, and resulting 4
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approval of Dow's participation as a purchaser of process steam.
The Saginaw Intervenors have been seeking to obtain the details of'this internal Dow study from the inception of this proceeding on November 17, 1970 (see Tr. p.
120); the subject has been dealt with at each session of the Hearing, usually under the general category of the "Dow Board Report."
Decision on Dow's objections to these Interrogatories has been reserved.
It should be repeated that these reports reflect opinion and conclusion only -- not testing or facts other-wise unavailable.
The conclusion of the Dow Board, in favor of the plant, is of the same pertinence as the studies made by Opposing Intervenors -- some members af whom are Dow employees -- against the plant.
There are any number of additional people and organizations around the country with views one way or the other, the relevance of which is of similar significance.
Dow believes that this Licensing Board should not concern itself with the logic and motivation of the parties supporting or opposing the application; such an inquiry might have no end.
The Dow Board of Directors must have -concluded that Dow should participate as a customer; had it not done so, Dow would not be here.
But what difference does it make whether Dow's reasons are good, bad or indifferent?
For i
every expert.available to Dow, there is certainly another n
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expert available to opposing intervenors; if there is to be a 69ttle of experts in this proceeding -- and we contend there should not -- at worst let it be once, at the Hearing, not twice, in discovery as well.
3 Use of Process Steam.
Dow has objected to Saginaw/Dow Interrogatories 259, 260, 265, 266, 304, 305 and 306, all of which seek in one way or another to inquire into the use which Dow intends to make of the process steam to be delivered to it by Applicant.
Decision on Dow's objections was reserved (Tr. pp. 889, 893).
The following is a summary of Dow's arguments at the April 3 conference in favor of its objections, explaining its March 29, 1971 objections:
(a)
The PSAR describes a tertiary heat ex-change system which will provide a complete physical separation between the secondary steam and
.the tertiary (process) steam, so that the level of radioactivity in the process steam to be delivered to _Dow will be no higher than the level of the treated feedwater.
It also describes a monitoring system capable of detecting any leakage of radio-activity into the process steam, and in such event provides for isolating the source of such leakage.
The issues oefore the Board are whether the tertiary heat exchange system meets the conditions in the PSAR and whether the monitoring system will perform as represented by Applicant so as to assure that the tertiary (process) steam meets'the standards set forth in the PSAR.
Thus, if Applicants ' systems are as represented, there is no reason for further inquiry -- including no more reason for inquiring into the use of process steam that is not produced in ac-cordance with thesel requirements than for inquiring into the _ consequences of an incredible accident.
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.l (b)
Inquiries into Dow's contemplated uses of process steam not only involve inquiries into Dow's manufacturing process, but also involve other con-siderations within the jurisdiction of other units and agencies of government.
The Saginaw Intervenors have indicated the scope of the inquiry which would be involved were the Board to permit discovering Dow's uses of the process steam:
"But what if the license issues and some of the glycerin or aspirin or any of the other products get contaminated?
In order to know they will get into con-tact -- We can't make any reasonable judgment on what precautions we might take to label those products and keep them off the market or something else.
If it is possible to operate, possi-ble to happen, admitted by the Applicant, and we don't know how they are going to come into emitact, we can't make any judgment as co what we might propose at the Hearing."
(Tr. pp. 884-5).
(Underlining added).
Presumably the Saginaw Intervenors were referring to by-products licensing and/or " labelling" under a federal or state food and drug act; their April 8 letter (p. 2) refers to "the resolution of Food and Drug Administration problems."
As stated above, there is no more reason to inquire into the uses of process steam that is not produced in ac-cordance with these requirements than to inquire into the consequences of an incredible accident.
Moreover, were Applicant proposing to deliver process steam with a higher radioactivity level than outlined in the PSAR, a by-products license might be required, but this is not a matter within the jurisdiction of this Board.
Also, Dow's use of such process steam with regard to certain of its products might well fall within provisions of the Federal Food, Drug and Cosmetic Act and state laws.
But this is also not within the Board's jurisdiction (see Tr. pp. 885, 889, 891).*
A See pp. 2 and 5 of the Department of Health, Education and Welfare environmental impact comments, specifically dealing with-these matters.
"A~ document certifying the safety of the products of the Dow plant utilizing process steam should be submitted for the review of Federal agencies which have. regulatory
The above issues are not ones with which this Board should concern itself.
4.
Synergism.
Dow has objected to Saginaw/Dow Interrogatories 239, 241 and 286 (Tr. pp. 825-28, 833-34, 862 and 910-11),
which. inquire into Dow manufacturing discharges into the environment.
A' reading of the questions makes clear that their purpose is discovery into NEPA environmental matters; this is made doubly clear by the fact that the Saginaw Intervenors have chosen not to make parallel inquiries of Applicant, although other questions of the same alleged eneral relevance to several parties have been duplicated, e
triplicated and quadruplicated.
However, at the Hearing, I
the Saginaw Intervenors shifted and sought to relate the inquiry to an alleged " synergistic" relationship between such effluents and radioactivity from the Midland plant,
.obviously in recognition of the far greater merit of the so-called " synergistic" issue.
-In terms of any'possible " synergism," the discovery sought-is so remote as to be close to irrelevant.
Dow's position with respect to these Interrogatories is as follows:
or other vasted interests regarding the consumer utilization of these products.
. The ' process steam will be used by Dow in the manufacture of consumer products.
Tne Food and Drug Administration 1should be-provided with a listing of the compounds which will come into contact with the process steam."
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L (a)
If in fact there is a realistic synergistic relationship between radioactivity from the proposed Midland plant and Dow indus-trial discharges, the question should be posed through Applicant, not Dow.
Undoubtedly there are discharges from other industrial plants in the area, not just Dow's; nor are all of Dow's discharges pertinent.
To the extent that there is something which should be disclosed, the focus should be upon Applicant's discharges, if any, and what is in the atmosphere, not on any one of the number of other plants in the area.
(b)
In any event, at most only pertinent or relevant effluents should be disclosed, not all effluents and all episodes over the years.
5 Industrial sabotage.
Dow has objected to Saginaw/Dow Interrogatory 309 as inquiring into possible industrial sabotage, which is not a r roper subject for inquiry by this Board (Tr. pp. 939-940).
The Atomic Energy Commission has made it quite clear that' matters of industrial sabotage are not proper considera-tions before a Licensing Board at this, the construction permit stage.
In In re Florida Power & Light Co., 2 CCH Atom. En. L. Rep. 1 11,259 (1967), the Commission stated:
"In accordance with Commission practice, protection against possible industrial sabotage is a matter to be dealt with at the operating license stage rather than in the construction permit proceeding."
(2 CCH Atom. En. L. Rep.
at p.
17,497-2)
See also, Siegel v. Atomic Energy Commission, 400 F.2d 778 (D.C. Cir.1968) and In re Pacific Gas & Electric Co.,
.2 CCH Atom. En.
L. Rep. 1 11,590 (1970).
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Dow Objections Sustained.
Dow's objections to the following Saginaw/Dow Interrogatories were sustained at the April 3 Hearing, so that Dow has not included documents called for by such interrogatories in its response to Saginaw/Dow Interrogatory 311:
2 through 232, 234-8, 242, 244 (in part), 247 (withdrawn, Tr. p. 872), 248-9, 252, 254-6, 258, 261 (in part), 262-4, 267-8, 270-3, 283, 285, 289-91, 294, 296-303, 310.
7 Dow Additional Responses.
Dow furnished the following additional responses to Saginaw/Dow Interrogatories at the April 3 Hearing, as such Interrogatories..'ere modified during the course of argument:
Saginaw/Dow 1.
This Interrogatory was modified so as to call only for information which a party intends to introduce as a part of its affirmative presentation at tne Hearing (Tr. p. 814, see Tr. pp. 728, 732, 799).
Accord-ingly, Dow's objection was withdrawn and its answer is "None," for the reasons set forth in its response to Saginaw/
Dow Interrogatory 233 Saginaw/Dow 269.
As modified, Dows response is that it has not made a survey of the natural radiation background in the area, which answer Saginaw Intervenors stated to be " satisfactory."-
(Tr. pp. 902-3).
8.
Discovery from AEC Staff.
We believe that the extent to which opposing intervenors are permitted discovery from the AEC Staff is the single most important discovery issue in this proceed-ing.
The prepared comment read at the outset of argument by AEC counsel (Tr. pp. 943-8) reflects the Commission's considered judgment and does not exaggerate the problem.
We believe that Intervenors have not really con-sidered the extent to which they need information from the AEC Staff, and are seizing upon this area of their discovery as the exposed soft underbelly of their adversary.
If they really needed the information, would they have been willing to contend that the only consequence of denial should be to deny the Staff a participation role?
"If we are not permitted, Mr. Chair-man, in some way to find out what went on with. respect to the Staff's Evaluation of this plant, then the Staff must not be permitted, it seems to me, to have any participation in this Hearing" (Tr. p. 962).
If they really needed the information to find out about something of concern, how could they at the same time be considering the possibility of settlement (Tr.
- p. 668, 973)?
If they really needed the information, would they have not even known the nature of their inquiry?
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"There isn't a single question asked in the interrogatories that is not directed to a con-clusion accepted by the Staff in the PSAR as to which no foundation appears."
(Tr. p. 955)
"There is not a single question to the Staff as to which it does not direct itself to a conclusion contained in the Staff's Safety Evaluation as to which no foundation appears" (Tr. p. 955).
"If you look at the questions carefully, Mr. Chairman, we have not asked in any way, shape or form for opinions, conclusions or policy questions" (Tr. p. 957).
Only a glance at the questions makes clear that they are simply not as described.
They clearly do call for opinions.
The first question (Saginaw/AEC 233) asks for the consequence of a WASH-740 accident; the second (Saginaw/AEC 234) asks about the Hendrie-Chairman Seaborg November 12, 1969, letter.
And so on!
If they really needed the information, wouldn't they have first looked at the documents made available by Applicant beginning December 1,1970 to be sure the in-formation wasn't already available to them?
Beginning at the first Hearing on November 17, 1970, reference was made to the need for a special role for the Staff 'in this proceeding (Tr. pp. 58-9, a copy is annexed for convenience as Exhibit A).
Despite the Saginaw Inter-venors' argument to the contrary, the shift in the burdan of going forward with regard to a good cause showing did not relieve them of one iota of the burden (Tr. pp. 594-5, a copy is annexed for convenience as Exhibit B).
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Y lie believe that the AEC Staff does not have an affirmative case (Tr. p.
799), and that the Staff was cor-rect in asserting that it does not have any proof to put in as such (Tr. p. 679), and that its role is to point out and try to help correct failures in the adversary process (Tr.
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- p. 680).
The Staff has already indicated that it will review and supplement the responses to be submitted by Applicant, as and if required.
(Tr. 945)
We believe that under the circumstances the following procedure should be adopted:
(a)
Decisions should be reserved on objections to the Saginaw/AEC Interrogatories until after the Saginaw Intervenors have ad-vised the Board that they have concluded their review of the documents produced by Applicant and of all responses to interrogatories, and still require the information sought from the Staff.
(b)
The Saginaw Intervenors should be required. to specify the alleged " good cause" for any discovery from the Staff, by affidavit
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dealing separately with each interrogatory, i
(c)
To the extent that Applicant or Dow i
can do so, they should first assume the burden of responding to any interrogatories which the j
Board sustains.
9.
Further Saginaw Defaults.
By letter dated April 8,1971, the Saginaw Intervenors chose not to comply-with the Chairman's directive that they produce the supplemental environmental questions i
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which they had allegedly prepared and withheld.
(Tr. pp. 726, 979-80).
This is either a further willful contempt of the Board, or further evidence that the Board can not rely on their loose language.
The Saginaw Intervenors have not yet served the objections to interrogator 1ec due April 1 (see March 3 order), and which on April 3 the Saginaw Intervenors in fact stated were already in the mai1 (Tr. 976-7).
Conclusion The Saginaw Intervenors are only one part of a multi-party proceeding of substantial importance to the public.
We believe that their conduct to this point --
epitomized by their April 8,1971 letter objecting to anything and everything -- makes clear that their purpose is to seize upon procedural technicality to win their case.
This they should not be permitted to do.
We urge the Board to convene both the April 24 and May 1 Hearings, and adhere to the schedule previously fixed by it.
There is more than enough to be done, and experience has shown that the Board must keep a tight control over these proceedings if we are to proceed with dispatch.
Dated:
New York, New York April 14, 1971.
Respe.ctfully submitted, f o y...
M,,. #g,,
/7'1,(.c 4 K YE, SCHOLER, FIERMAN, HAYS & HANDLER
EXHIBIT A I-
"O' e other thing I would like to say, because we n
l are trying to fashion something new and different.
It i
j does not, so far as I know, otherwise exist in this context.
Other proceedings are ones in which the parties' interests are paramount.
Here of course the public's interest is paramount.
The Staff has obviously limited personnel.
This is true of all or many government organizations.
If they 4
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are. required to participate at every phrt of all of the exchanges between the parties, it may be that the personnel j
problem to them would make it impossible to move as ex-peditiously as we would all like.
I would think they should be given a special standing in this proceeding; where there is, for example, to be an exchange of briefs on a legal point, they should not be required to submit briefs until they-have seen what the parties have done.
If we have properly identified and argued -- and we are competent counsel -- there is no reason for them to be burdened with coming into the picture or having to enumerate a position or brief a matter or assume another burden.
If not, they should be given special stsnding with the right to submit 1
supplemental or additional pleadings."
(Tr. pp. 58-9, t
November 17, 1970)
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c.
EXHIBIT B "I would like to comment regarding the specific suggestion that the Chairman made with the intervenors about good cause for the interrogatories.
I think the regulations would call for that, that is, that good cause must be shown for discovery.
"On the other hand it seems to me that the practical reality of this proceeding and any such pro-
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ceeding is that those supporting the application, Applicant and supporting intervenors, are the ones who are under pressure to move and get the things out.
"And if Mr. Cherry or any opposing intervenor wants to take the time to prepare and serve interrogatories,
presumably he thinks there is something he wants to get, so it ueems to me the burden ought to be placed upon those receiving the interrogatory, at least those supporting the application, to complain and object.
In many cases they 2
would rather respond than object just to get the thing done.
"For example, Mr. Cherry might ask questions of a scientific nature which really could be answered out of a textbook, but the chances are good that we would just answer rather than complain in order to move forward.
"So I would think that he ought to be permitted to i
serve whatever interrogatories he wants to serve by a certain date and that those who don't want to answer them should object to that.
(Tr. pp. 594-5, January 21, 1971)
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CERTIFICATE OF SERVICE I, Milton R. Wessel, Esq., a member of the firm of Kaye, Scholer, Fierman, Hays & Handler, trial counsel to The Dow Chemical Company in the above matter, hereby certify in accordance with the provisions of 10 C.F.R.
$ 2 712(e)(2) that on April 14, 1971, I served a copy of the attached The Dow Chemical Company's Memorandum Regarding Intervenor Saginaw Valley Nuclear Study Group et al.'s Discovery, by postage prepaid mail, upon the attorneys for each of the parties, whose names and addresses are listed below:
Fdchard G. Smith, Esq.
Smith & Brooker 703 Washington Avenue Bay City, Michigan Thomas F. Engelhardt, Esq.
Regulatory Staff United States Atomic Energy Commission Washington, D.C.
20545 Myron M. Cherry, Esq.
McDermott, Will & Emery 111 West Monroe Street Chicago, Illinois 60603 James A. Kendall, Esq.
Currie & Kendall 135 North Saginaw Road Midland, Michigan Anthony Z.
Roisman, Esq.
Berlin, Roisman & Kessler 1910 N Street, N.W.
Washington, D.C.
20036
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i William J. Giuster, Esq.
Suite li, Merrill Building Saginaw, Michigan fu h r A L C'.L l'.
A :< -
Milton R. Wessel 4
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