ML19330A096

Response to Saginaw Valley Intervenors' 711207 Motions Stating No Position on Motions 2 & 5 Due to Burden Falling on Nrc.Opposes Motions 1,3 & 4 Due to Implication of Addl Burden on Slow Moving Proceeding.Certificate of Svc Encl

ML19330A096
Person / Time
Site:	Midland
Issue date:	12/16/1971
From:	Graves H, Reis H CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007150853
Download: ML19330A096 (7)

Text

_ ._. _ y, _

THIS DOCUMENT CONTAINS P00R QUALITY PAGES UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of ) /,.1-/[- M

)

COUSUMERS POWER COMPANY ) Docket Nos. 50-329

) 50-330 (Midland Plant, Units 1 and 2) )

APPLICANT'S ANSWER TO MOTIONS OF SAGINAW VALLEY ET AL. INTERVENORS Consumers Power Company, the Applicant in this pro-ceeding , hereby answers the " Motions of Saginaw Valley Et Al. Intervenors," dated December 7, 1971, as follows:

I. Applicant strongly opposes Intervenors' Motion No. 1, which seeks to prohibit discussions between Applicant and the AEC Regulatory Staff unless either : 1) all other parties are notified in advance and are permitted to participate; or, if such advance notice and participation is impracticable, 2) all parties to the communication prepare and distribute to all other parties, within three days, a comprehensive and detailed summary of it.

The discussions to which Intervenors' Motion is directed are not some form of improper ex parte communications.

Nor do Intervenors appear to argue that any question of ex parte communications is here involved. Certainly the l AEC's Rules of Practice do not preclude the Regulatory Staff, itself a party in this adjudicatory proceeding, from entertaining off the record communications. 10 CFR 2.780(a).

8007150A83 h /M .

^

- . .- .=. - . . ..~ .-.

- - - - -

. - . . - .:.' .- i -.

p ,

The integrity of the decision makers in an~ administrative adjudication are in no danger because of any challenged discussions with the Regulatory Staff in this " contested proceeding", because the decision makers may not consult the Staff in such a proceeding. 10 CFR 2.780 (e) . And, of course, it is the' integrity of the decision makers which the ".ex parte" prohibition is designed to protect.

5 U.S.C.A. S554 (d) (1967) ; see Attorney General's Manual on the Administrative Procedure Act,- p.15 (1947); see also Davis, Administrative' Law Treatise,, S13.12, p. 465 (Supp.

1970); see also Lovett, Ex Parte and the FCC: The New-Regulations, 21 Fed. Communications B. J. 54,57. (1967).

Thus with regard to Intervenors' motion, "ex parte" - con-siderations are clearly irrelevant.

I Although, Intervenors advert to the presiding officer's general powers to conduct the instant hearing in a fair and expeditious manner (Motion p.1; 10 CFR 2.718) , they cite l

no authority, and we are aware of none, for the proposition ,

! that the challenged' discussions violate any of their rights whatsoever. They will continue to possess adequate oppor-tunity to contribute to the building of a record, and to controvert any part of that record with which they desire to take issue. 5 U.S.C.A. S554 (c) (1967).

Intervenors imply (Motion p.3) .that they fear " agreement l

l outside the hearing room" between Applicant and the Regulatory Staff. However, the Staff is a full party and t

i .

,* es h a===&' -

w,-.ww'-. ++%=,*- .

- r . 4 +

. . ,m r

)

if agreements between parties come about and the total conflict is thereby narrowed, this is clearly to the good of an administrative process which contemplates just such a process of informally limiting the issues, rather than prolonged litigation.

Moreover, in view of the Staff's clear' mandate to represent broad public interests, Intervenors can hardly represent themselves as the sole bastion of public welfare.

The public interest may be expected to receive full and fair consideration in the instant proceeding even if Intervenors' role remains somewhat less than ubiquitous.

Intervenors' motion may also be viewed as a unique attempt to promote a new mud expanded form of discovery.

In this respect we note that the' AEC's Rules of Practice, at 10 CFR 2.740 ettseq., devote considerable attention to prescribed discovery methods. Those rules regulate the procedures to be followed, applying well-recognized protections against abuse by any of the parties. The protections afforded the parties are, moreover, covered l - by a large body of existing law which apparently would be inapplicable to the disputes which would inevitably arise from the grant of the motion. Grant of the motion would also appear to be precluded by 10 CFR 2.718 (1) , which l

l requires that action taken pursuant to S2.718 be compatible

% g

--%e.m o -. wwe s m- ow .,cw m-=.m. -,. --t ,. .w+- e

,a m - g -e. -w - -~-m y

p .~.

with the remainder of the regulations, of which the discovery rules are a part.

Interve: tors ' assertion that grant of its motion will not unduly burden this proceeding is totally unconvincing.

In addition to the time which would inevitably have to be devoted to disputes and their resolution, the necessity of advance notice to all parties before any discussion plus an opportunity for all to " participate" is obviously un-workable and might cause a virtual cessation of communica-tions between parties, thereby greatly prolonging the pro-ceeding. Alternatively, the subsequent reduction of all oral discussions to writing would further burden the parties. In addition, the setting out for the record of a fair and accurate summary of a given conversation could easily result in generating further dispute as to what actually was said or intended. Davis, supra, p. 469.

Thus, it is readily apparent that the granting of Intervenors' motion would directly place a severe additional burden on an already slow moving proceeding. Such an action would hardly comport with the presiding officer's duty under 10'CFR 2.718'to "take. appropriate action to avoid delay."

For the foregoing reasons, Applicant submits that Intervenors' Motion No. 1 should be denied.

4

'h,..,

=%-. u. = + - - * -

_g .w. ,+ - -

9

q r II. Ebr the reasons set forth above, Applicant also opposes Intervenors' Motion No. 4. The additional delays inherent in reconstructing discussions which have occurred over a five-month period, and the inevitable disputes as to the accuracy of any such reconstructions render this motion particularly at variance with the spirit of 10 CFR 2.718.

III. Applicant also opposes Intervenors' Motion No. 3, which seeks permission to communicate informally with agents of the Regulatory Staff. Like Motion No. 1, this motion appears to seek an expanded form of " discovery," which is subject to all of the objections discussed above and is not authorized. As indicated in the discussion of Motion No. 1, we know of no reason why the parties to this proceeding may not communicate with each other to the extent they regard such coraunication to be in their best interests. Conversely, the privilege of refraining from such communication is avail-able to any. party upon an appraisal of'its_own interests and available resources. There is no authority for or reason why the decision maker should seek to inject itself into this area of litigants' prerogatives.

Intervenors, however, do appear by this motion to seek i

! the Board's Order to the Staff to bring about such discus-

sions. Intervenors have not detailed, and we do not see, t

l how 10 CFR 2.718 can be fairly read to allow the presiding 9

e nog __m. w .-w * = -

pv ]s s

officer to force parties to communicate off the record in contravention of their perceptions of their particular interests.

IV. Motions No. 2 and 5 request that the Regulatory Staff be required to produce documents, correspondence and related information without, in our view, adequate justifi-cation for.the sweeping orders to produce which are sought.

However, since the burdens of such discovery would fall entirely upon the Regulatory Staff,we take no position i

with respect tc'those motions.

Dated: becember 16, 1971 Respectfully submitted, LOWENSTEIN, NEWMAN & REIS 1100 Connecticut Avenue,-N.W.

Washington, D.C. 20036

'By dT4 Hdrold F.5Rdis "

Attorneys for Applicant

• Consumers Power Company Of Counsel, Harold P. Graves Robert Lowenstein John K. Restrick Richard G. Smith o

O

+

4 S

y o ', m ' . nn . ..,w. w." --e~ .

~*-' ~ ' -

, O UNITED STATES OF AIiSRICT ATOMIC ENERGY CO:SIISSIOU ,

In the' Matter of )

)

CONSUMERS POWER COMPANY ) Docket Hos. 50-329

) 50-330 ,

(Midland Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE ,

I hereby. certify that copics of " Applicant's Answer to-Motions of Saginaw Valley et al..Intervenors" , dated December- 16,'1971, in the above-captioned matter have been served on the following in person or by deposit in the United States mail, first class or-airmail, this 16th day of December, 1971.

Arthur W. Murphy, Esq., Chairman Milton R. Wessel, Esq.

Atomic Safety-and Licensing Board Kaye, Scholer, Fierman, Hays

{

Columbia University School of Law and Handler Box 38, 435 West ll6th Street 425 Park Avenue New York, New York 10027 New York, New York 10022 Dr. Clark Goodman James N. O'Connor, Esq.

Professor of Physics The Dow Chemical Ccmpany University of Houston 2030 Dow Center 3801 Cullen Boulevard Midland, Michigan 48640 Houston, Texas 77004 Myron M. Cherry, Esq.

Dr. David B. Hall 109 N. Dearborn Street Los Alamos Sci;ntific Laboratory Suite 1005 P.O. Box 1663 Chicago, Ill. 60G02 Los Alamos, New Mexico Algie A. Wells, Esq., Chairman William J. Ginster, Esq. Atomic Safety and Licensing Suite 4 Board Panel Merrill Building U.S. Atomic Energy Commission Saginaw, Michigan 48640 Washington, D.C. 20545 James A. Kendall, Esq. Irving Like, Esq.

135 N. Saginaw Road 200 West Main Street Midland,. Michigan 48640 Babylon, New York 11702 Anthony Z. Roisman, Esq. Stanley T. Robinson, Esq.

Berlin, Roisman and Kessler Chief , Public Proceedings Branch 1910 N Street, N.W. Office of the Secretary of Washington, D.C. 20036 the Commission U.S. Atomic Energy Commission Thomas F. Engelhardt, Esq. Washington, D.C. 20545 U.S. Atomic Energy Commission Washington, D.C. 20545 y [f / -

, Harold F. Reis 9

g- . .- s a w e-. .4s--. - _ _ _..- --+