ML19330A008

Response Memorandum Supporting Applicant Motion on Order of Presentation of Evidence at Hearing & for Submission of Written Testimony & Documentary Evidence.Certificate of Svc Encl

ML19330A008
Person / Time
Site:	Midland
Issue date:	01/15/1971
From:	Lowenstein R, Rich Smith CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, SMITH & BROOKER
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007140725
Download: ML19330A008 (10)

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UNITED STATES OF AMERICA (J J 'C , ,

ATOMIC ENERGY COMMISSION (-

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In the Matter of )

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) Docket Nos. 50-329 CONSUMERS POWER COMPANY ) 50-330

)

(Midland Plant Units 1 and 2) )

REPLY MEMORANDUM OF APPLICANT IN SUPPORT OF ITS MOTION ON THE ORDER OF PRESENTATION OF EVIDENCE AT THE HE'A RING AND FOR THE SUBMISSION OF WRITTEN TESTIMONY AND THIS DOCUMENT CONTAINS -

DOCUMENTARY EVIDENCE POOR QUAUTY PAGES Applicant hereby requests from the chairman of the Atomic Safety and Licensing. Board, pursuant to 10 C.F.R. 52.730 of the Atomic Energy Commission's Rules of Practice, permission to submit this memorandum to the Board in reply to the memorandum of Saginaw .

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Valley Nuclear Study Group, et al, (hereinaf ter "intervenors") ,

served January 7, 1971, on Applicant's motion of November 30, 1970, concerning the order of presentation of evidence at the hearing (hereinafter "intervenors' brief" or "brief").

This memorandum will be brief. It will address itself only to Paragraph VI of the motion and will not duplicate the arguments made in Applicant's original memorandum of December 4, 1970 in I support.of that part of the motion. It will be limited to a l

response to three points made in intervenors' brief. .

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Intervenors' brief, at pp. 12-15, accuses Applicant of ignoring both the fact that this is a.. contested proceeding and the differences 86n40 725 g . I l

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v' y in the guidelines prescribed by the AEC for the conduct of contested and uncontested proceedings. Intervenors' assert -

(brief, p. 15) that, in a contested proceeding, the Board "is obligated to make a de novo review of the PSAR, the Staff Rvaluation Report and any other conclusory statement prepared in connection with such documents." In support of this contention, it refers the Board to the first sentence of Section VI(d) of Appendix A to Part 2 of the Commission's Rules which it quotes (at p. 14 of its brief) as follows:

"In contested proceedings, the board will determine controverted matters as well as decide whether the findings required by the Act and the Commission's regulations should be made..." )

i Inte~rvenors conveniently omit the three sentences which immediately follow that one and conclude the paragraph. 'The l l

omitted sentences highlight the error in intervehors' contention and clarify the Board's responsibility in contested proceedings.

Those sentences are as follows:

"Thus, in such proceedings, the board will deter-mine the matters in controversy and may be called upon to make technical judgments of its own on those matters. As to matters which are not 31i contr.oversy, boards are neither required nor ex-pected to_ duplicate the review already performed

- cy the regulatory staff and the ACRS and they are authorized to rely upon the testimony of the regulatory staff and the applicant, and the con-clusions of the ACRS, which are not controverted by any' party. Thus, the board need not evaluate those matters already evaluated by the staff which are not in controversy." (Emphasis added).

Thus, it is clear from the very rule which intervenors properly regard as . controlling that, in a contested proceeding, the Board need- not make a full, independent evaluation of matters not in

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controversy. It is also clear from the text of the rule that a determination must be made prior to the start of the hearing as to what the specific matters in controversy are.

II.

Intervenors take the posit. ion (brief, n 12 at pp. 20-21 and pp. 22-23) that they can create matters in controversy by merely making general allegations in their petition to intervene and'

.that they then have the' right to conduct exhaustive general cross-examination of all witnesses supporting the application before deciding what the shape of their case will be and what written evidence they will submit. They base their position primarily (brief, pp. 17 and 11) on the right of cross-examination as defined in S7(c) of the Administrative Procedure Act, 5 U.S.C.

S556 (d) , and on the Due Process clause of the Constitution.b!

This position has been rejected recently by two different statutory three-judge District Courts.

In Allied Van Lines Co. v. United States, 303 F. Supp. 742 (C.D. Cal. 1969),'the proceeding involved an application to the Interstate Commerce Commission for a certificate of public convenience and necessity (i.e., the right to serve new territory) l i

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-1/ They also base it on the burden of proof provision of 57(c) of the Administrative Procedure Act, which we shall discuss in Part III, infra.

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by .a common carrier mover of household goods. The ICC assigned the case for determination parsuant to its modified procedure, outlined in rules 45-54 of its General-Rules of Practice (4 9 C.F.R.

SS1100.45-1100.53).2_/

Applicant Pyramid Van Lines

" submitted verified statements and affidavits from numerous supporting witnesses, including persons who had experienced inadequate service from the plaintiffs, persons who found Pyra-mid's services to be satisfactory, other motor carriers who claimed that an extension of Pyramid's service would permit them to compete with the other nationwide carriers.

In addition, Pyramid offered statistics which projected increases in the demand and need for movers of household goods." (303 F.Supp. at 745).

Protestants, in their verified statements, attempted to refute Applicant's supporting statements (id. at 745) but "they did not, and apparently could not, controvert the veracity of most of those affidavits...."(id. at 749). Instead, they " demanded the right to cross-examine every supporting witness of Pyramid's application at an oral hearing...." Id. at 745.3/

Pyramid, in reply statements, offered additional evidence of unsatisfactory I Under those rules, the applicant files a sworn statement containing the facts and arguments on which it relies, each protestant files a sworn statement specifying those statements

• of fact and arguments of the applicant to which it takes exception, including therein a statementoof the facts and argu-ments in support of such exceptions, and the applicant files a reply statement consisting of rebuttal to the protestants' statements, (49 C.F.R. SS1100. 49 (a) and 1100.50). Cros s -examina-tion or gther oral hearing may be requested by any party but will not be granted "unless material facts are in dispute."

(49 C.F.R. S1100.53(a)). (Emphasis Added).

$/ They also sought permission to inspect certain freight bills ,

l supporting Pyramid's exhibits (ibid.) which they were permitted  !

to do. Id. at 746.

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service by protestants, including additional facts to refute protestants' claim of having no records of having served those who signed sworn statements complaining of poor service.

Protestants' request for general cross-examination of all of Applicant's supporting witnesses was denied and the application was granted.

The reviewing court, in sustaining the ICC's denial of protestants' request for cross-examination against claims that it violated both the Administrative Procedure Act and due process, stated (id.at 749) :

i "It should also be noted that plaintiffs made no attempt to~ utilize the Commission's discovery procedures (49 C.F.R. S1100.56-57) by seeking to take depositions of, or present interrogatories to, Pyramid's supporting wit-nesses--procedures which could conceivably and easily give the plaintiffs the opportunity for the' confrontation and cross-examination they wanted, and at the same time obviate the a11 aged necessity for an oral hearing.

No material issues of fact were in dispute concerning the dissatisfaction of a large number of witnesses with the exist-ing carriers, and thus the Commission properly denied an oral hearing to the plaintiffs.

National Trailer Convoy, Inc. v. United States, 293 F. Supp. 634, 636 (N .D . Okl . 19 6 8 ) ; Day ,

v. United States, 246 F. Supp. 689, 693 (S .D . Cal . 19 65) . "

In a decision last year which followed the rationale of 1

Allied Van Lines, another three-judge District Court stated:

, "We note further that protestants made no show- -

ing adverse to such evidence as was presented by the applicant on the issue of economic feasibility, nor did_it avail itself of dis-

-covery procedures to determine whether such a showing could be made. The utilization of dis-covery procedures may have obviated the alleged need w w a-- ------

for confrontation and cross examination of witnesses and the alleged necessity for an oral hearing. Allied Van Lines Co. v. United

. States, 303 F.Supp. 742, 749 (C.D. Cal. 1969).

The viability and usefulness of the modified procedure depends upon the general principle that a party cannot simply fail to controvert the veracity of sworn statements and then succeed in a demand for the right of cross examination. Id. See also, .

National Trailer Convoy, Inc. v. United States, 293 F.Supp. 6 ,3 4 , 636 (N.D. Okl. 1968); United Transports, Inc. v. United States, 245 F.Supp.

561, 565 (W.D. Okl. 1965), aff'd per curiam 383 U.S. 411, 86 S.Ct. 1064, 15 L.Ed.2d 840 (1966)." .

Ashworth Transfer, Inc. v. United States, 315 F.Supp. 199, 202-03 (D. Utah 1970).

While AEC procedures are somewhat different from the ICC's modified procedure, there is the opportunity for pre-hearing discovery and the presentation of evidence in writing (10, C.F.R.

SS2.740, 2.741 and 2.743), as well as the policy that proceedings be conducted as expeditiously as practicable (Section III(c) (6) of App. A to the AEC Rules of Practice). The rule of those cases that it is permissible, both under the Due Process clause and the Administrative Procedure Act, to require that all exploration for evidence be done by pre-hearing discovery is therefore equally applicable here. Indeed, the inposition of such a requirement is even more clearly permissible in the case at bar for, in Allied and Ashworth, pre-hearing discovery had not been conducted and it could not be known how much discovery, if any, the ICC would have permitted, whereas, here, the Board has already made it clear

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that a reasonable amount of pre-hearing discovery will be

- permitted and so we can be a.ssured that intervenors will come into the hearing with sufficient knowledge of the facts to permit them to decide what specific issues to contest and what evidence to submit with. respect to those issues.

It can be seen, then, that the granting of paragraph VI of Applicant's motion would not operate to deprive the intervenors of the opportunity to investigate the facts or search for evidence. It would mer'ely restrict that investigation and search to the pre-hearing stage of the case and keep the hearing itself confined to the presentation of evidence on all of the real, contested issues which have emerged from the pre-hearing discovery.

The right to cross-examine all witnesses testifying at the hearing would in no way be impaired. What would be prevented is an open-erled, free-wheeling cross-examination,A/ limited only by the endurance of counsel and the Board, which would be nothing more than an. unwieldy extension of discovery procedures into the hearing itself. Thus, the effect of a grant of the motion would be to forestall a protracted diversion of the. hearing fram its proper purpose -- the offering of evidence on the contested issues in the case.

A! The term cross-examination is really a misnomer, as ~

applied to the kind of procedure contemplated by the intervenors.

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• III.

Intervenors also rely (brief, pp.17 and 20) on the following sentence from Section 7 (c) of the Administrative Procedure Act, 5 U.S.C. S556 (d) :

"Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof."

The import of their brief is that Applicant's position on the burden of going forwa'rd is inconsistent with that statutory provision. -

Intervenors' proposition was rejected in NLRB v. Mastro Plastics Corp., 354 F.2d 170 (2d Cir. 1965), cert. denied, 384 U.S. 972 (1966). In that case, the Court held that the quoted sentence in 57 (c) dealing with the burden of proof does'not affect the burden of coming forward with evidence. It stated (id. at 176):

"IW]e do not think that Congress intended by this statute to disturb the traditional al-location of the burden of going forward between the parties to an adjudicative pro-ceeding. The legislative comment to Section i 7 (c) supports our conclusion:  !

t I l 'That the proponent of a rule or order

' has the burden of proof means not only that the party initiating the proceeding has the general burden of coming forward l

with a prima facie case but that other

( parties who are proponents of some dif-ferent result also for that purpose have a burden to maintain.' Sen. Doc. No. 245, 79th Cong. 2d Sess. 208, 270 (194 6) . "

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CONCLUSION That..part of Applicant's motion of November 30, 1970 which is stated in paragraph VI thereof should be granted.

January 15, 1971 Respectfully submitted, Y'

\ r, W ((M GM R t ROBERT LOWENSTEIN Lbwenstein and Newman 1100 Connecticut Ave., N.W.

Washington, D.C. 20036 b Sj -

RICHARD G. SMITH VV) !

Smith & Brooker, P.C.

730 Washington Avenue Bay City, Michigan 48706 Attorneys for Applicant Of counsel:

Consumere. Power Company Harold P. Graves  !

John K. Restrick  !

Jerome E. Sharfman l l

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(

. UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION A

In the Matter of )

) Docket Nos. 50-329 CONSUMERS POWER COMPANY ) 50-330

)

, (Midland Plant) )

CERTIFICATE OF SERVICE I hereby: certify that copies of the " Reply Memorandum of

. Applicant in Support of its Motion on the Order of Presen-tation of Evidence at t,he Hearing and for the Submission of Written Testimony and Documentary Evidence", dated January 15, 1971, in the above-captioned matter have be'en served on the following by deposit in the United States mail, first class or airmail, this 15th day of January, 1971.

Arthur W. Murphy, Esq., Chairman Thomas F. Engelhardt, Esq.

Atomic Safety and Licensing Board U.S. Atomic Energy Commission Columbia University School of Law Washington, D.C. 20545 Box 38, 435 West'll6th Street New York, New York 10027 Milton R. Wessel, Esq.,

Kay, Scholer, Fierman, Hays and Dr. Clark Goodman Handler Professor of Physics 425 Park Avenue  !

University of Houston New York, New York 10022 l 3801 Cullen Boulevard

.i Houston, Texas 77004 James N. O'Connor, Esq.

The Dow Chemical Company Dr. David B. Hall 2030 Dow Center Los Alamos Scientific Laboratory Midland, Michigan 48640 P. O. Box 1663 Los Alamos, New Mexico 87544 Myron M. Cherry, Esq.

111 West Monroe Street William J.-Ginster, Esq. ' Chicago, Illinois 60503 Suite 4 Merrill Building A,lgie A. Wells, Esq., Chairman ,

Saginaw, Michigan 48602 Atomic Safety and Licensing Board Panel l U.S. Atomic Energy Commission James.A. Kendall, Esq. Washington, D.C. 20545 l 135 N. Saginaw Road Midland, Michigan 48640 Mr. Stanley T. Robinson, Jr. I Chief, Public Proceedings Branch l Anthony Z. Roisman, Esq. Office of the Secretary of the  ;

. Berlin, Roisman, and Kessler Commission '

-1910 N' Street, N.W. U.S. Atomic Energy Commission 20545

, Washington,_D.C. 20036 Washington, D.C.

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