ML19330A114
| ML19330A114 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/09/1971 |
| From: | Bauer J, Vessel M DOW CHEMICAL CO., KAYE, SCHOLER, FIERMAN, HAYS & HANDLER |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007150883 | |
| Download: ML19330A114 (14) | |
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In the Matter of
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Docket Nos. 50-329 ?
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CONSUMERS POWER COMPANY
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50-330 Midland Plant, Units 1 and 2
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l-l- ?h DOW MEMORANDUM WITH REGARD TO RENEWED SAGINAW DISCOVERY APPLICATIONS.
This memorandum, submitted at the request of the Board at the June 7, 1971 pre-Hearing Conference, will summarize Dow's arguments in opposition to the applications for discovery from Dow and other relief, set forth in the Saginaw May 28, 1971 applications.
The Saginaw applications, with one exception, are renewals of earlier Saginaw requests for discovery, to which I
l Dow's objections hhvebeen once sustained by the Board.
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1.
Saginaw/Dow Inter-rogatories 243, 245, THIS DOCUMENT CONTAINS 246 and 251 (stginaw POOR QUAUTY_PAGES 5/28/71 memorandum pp. 5-6).
Saginaw/Dow Interrogatories 243, 245, 246 and 251 seek discovery with respect to Dow opinions as to the l
desirability of the proposed Midland nuclehr plant, and resulting approval of Dow's participation as a purchaser 8007150 78 3 a
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s of process steam.
Dow's objections were first set forth in its written Objections dated March 30, 1971, were argued orally at the Hearing on April 3, 1971, and are summarized at pages 3-6 of Dow's April 14 memorandum.
1 At the April 3 Hearing and in its Order dated May 13, 1971 (p. 4), the Board sustained Dow's objections to each of these Interrogatories, subject to renewal for good cause after examining the Dow list of documents specifying any reports with respect to final systems in-cluded 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 transcript page 916, Dow's documents responsive to this interrogatory -- plus many others in addition to those requested to be furnished by the Board -- were long before included in the eight-page schedule of Dow documents submitted at the December 1, 1970 Hearing (Tr. pp. 432-3),
in accordance with the discussions at the November 17 Hearing (Tr. pp. 118-19, 123, 125).
At the June 7 Hearing Saginaw complained that the list of documents was not fully responsive to its Interrogatories, and did not, for example contain documents relevant to preliminary or rejected systems such as those 2
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with respect to the design of the secondary steam system (See final sentence of paragraph (a), renewing these Interrogatories, at page 6 of the Saginaw May 28, 1971 memorandum)., This ignores the fact that it was made clear at the April 3 argument that such preliminary or rejected materials were not to be disclosed.
At the June 7 argument, the Saginaw Intervenors contended that the Dow list of documents and these related Interrogatories bear upon the so-called " synergistic" issue.
In fact, they have nothing to do with " synergism" at all.
Saginaw protested bitterly at the November 17 and December 1, 1970 Hearings until it was given the Dow December 1, 1970 list.
Its failure for over one-half year to make any application with res'pect to any specific document there listed -- except to renew the application l
for the list itself and to demand more -- is revealing.
- Indeed, it was not until the June 7 Hearing that Saginaw, after be-ing pressed, even asserted a general desire to have the i
documents themselves -- and still without designating any particular documents or any good cause for the request.
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Saginaw/Dow Interrogatory 311 (Saginaw 5/28/71 mem-orandum, pp. 6-12).
Saginatt/Dow Interrogatory 311 demands identification and production of'the documents with respect to which dis-covery was requested in the first 310 Saginaw/Dow Interrogatories.
Dow's objections to this Interrogatory were set forth in its March 30 Objections, were argued at the April 3 Hearing, and are summarized at pages 3-4 of Dow's April 14 memorandum.
Where the demands for documents relate to specific earlier interrogatories (see Interrogatory 311[e]), Dow's ob-jections are of course the same as with respect to those interrogatories, and are set forth in sections 1 and 3 of this memorandum.
Saginaw has added one additional argument with respect to Saginaw/Dow Interrogatory 311(a), however, in its May 28 memorandum.
That Interrogatcry seeks documents f
with respect to Dow's " participation" in the design of the proposed Midland plant, as distinguished from Dow's
" evaluation" or other involvement,which are dealt with in other. Interrogatories (see Saginaw/Dow Interrogatory 311[b]).
In response, Dow has made clear that responsibility for design is strictly Applicant's not Dow's. 'At the May 1, Hearing, in its May 28 memorandum and again at the June 7 4
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Hearing, Saginaw sought to refute this by referring to some of the documents produced for discovery by Applicant, contending that these show that in fact Dow is a kind of l
" partner" or "co-venturer" with Applicant in the plant 1
(Saginaw May 28, 1971 memorandum, pp. 7-11. Tr. pp.1001-1017).
The short answer to the Scginaw contention la Paragraph 4C of the Applicant-Dow contract (p.14), as amended May 1, 1969 (p.2), which makes very clear that complete and final responsibility is Applicant's -- as'indeed it must be if Applicant is to receive the license.
That paragraph reads as follows:
"It is the express intent of the parties hereto that Dow shall not, by reason of this Agreement or any contract or other document referred to herein, acquire or assert any right of control or direction over the Generating Plant or over the concept, design, construction or operation thereof.
Notwithstanding anything to the contrary in this Agreement or any contract or other document referred to herein, Consumers Power hereby reserves the exclusive right to make changes in the Generating Plant and in the concept, design, construction and operation thereof, at any time or times hereafter and to whatever extent that it may deem desirable, ex-cept that the Generating Plant design will provids for at least two reactors, each capable of supply-ing Dow's entire reserved steam capacity and ex-cept, further, that Consumers Power shall endeavor to minimize any additional capital investment wholly allocable to steam service to Dow as a result of such changes, to the extent it may do so consist-ently with good engineering practices, Consumers Power's policies and system requirements and the requirements of governmental bodie,s having jurisdiction."
It is unfortunate that Saginaw approaches the issues as though this were a criminal conspiracy trial rather than an administrative inquiry into whether the pro-posed Midland nuclear plant will meet the requirements of
law.
At the June 7 Hearing it revealed that it may even seek to apply the best evidence rule and other strict rules of evidence to this proceeding -- a shocking suggestion in light of its own failure to comply with even
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the liberal rulings of this Snard.
Such an approach, if permitted,can lead only to intolerable and interminable procedural obstruction.
3 Saginaw/Dow Interrogatories 239, 241, 259, 260, 270 and 286 (Saginaw 5/28/71 mem-orandum, pp. 12-13.
Dow's objections to these Interrogatories were l
set forth in the March 30 objections and argued at the i
April 3 Hearing, and are summarized (except for Saginaw/Dow Interrogatory 270, objection to which was sustained at the April 3 Hearing, pp. 903-4, see Board's May 13 order, p.3),
at pp. 6-8 of its April 14 memorandum, with respect to Interrogatories 259 and 260, and at pages 8-9, with respect l
to Interrogatories 239, 241 and 286.
Saginaw has lumped these Interrogatories together as the so-called " synergistic" interrogatories.
- However, in fact, they represent two different cate.gories of requests for discovery (Interrogatory 270 additionally seeks in-formation with regard to Dow's promotional and public affairs activities).
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s The first category, Interrogatories 259 and 260, seeksto inquire -into the use which Dow intends to make of the process steam to be delivered to it by Applicant.
The Board sustained Dow's objections because, as expressed in the May 13 order (page 4), the " concern here is with the integrity of the system by which process steam is supplied and not with Dow's reaction to possible con-tamination," and "Dow's reasons for intervention are not an issue in this proceeding."
The Saginaw argument for renewal of these re-quests (May 28, 1971 memorandum, pp. 12-13) is simply that the information is important -- which indeed it may well be -- continuing to ignore that the issues are ones which are not within the jurisdiction of this Board, although Dow's use of process steam may well fall within provisions of the Federal Food, Drug and Costmetic Act and state laws.
i The second category of these Interrogatories, 239, l
l 241, 270 and 286 is the one as to which most of the argu-ment at the June 7 Hearing was directed.
It seeks to l
inquine into Dow manufacturing discharges into the atmosphere.
Dow's objections, stated in its March 30 objections and argued at the April 3 Hearing, are summarized at pages 8-9 of Dow's April 14 memorandum.
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At the April 3 Hearing, and again in its May 13 Order, the Board made clear that it regarded these Inter-rogatories as calling into question the validity of Part 20.
Thus, at page 3 of its May 13 Order the Board stated:
"If Intervenors make a showing that particular effluents are affected by radioactivity in such a way as to call into question the validity of the Part 20 limits as applied to this plant, they may ask appropriate questions about those effluents."
And in its May 18 Order, summarizing its ruling at the May 1 Conference with respect to this issue, the Board stated (p. 2):
"The Board offered intervenors op-portunity to make an offer of proof with regard to factual information on which intervenors base their con-tentions that Appendix D and Part 20 are invalid and that an evidentiary hearing should be held on these issues...
[Such proof] should be filed on or before June 7, 1971."
At the June 7 Hearing Saginaw stated that it does have evidence with respect to such alleged synergistic reaction between certain effluents and radiation or radio-activity vithh1 Part 20 limits; yet the Saginaw response to the Board's Orders was not to disclose such evidence, as requested, but to serve n,otice to take the depositions of a number of persons, including two Dow employees and two l
employees of Dow Corning Company (Saginaw Motion, May 20, 1971).
Dow's objections to such depositions, on the ground that they were simply another way (oral interrogatories) of seeking to renew previously-denied I
requects for such information (by written interrogatories),
l were summarized in Dow's May 21, 1971 memorandum.
The Board denied such depositions in its May 31, 1971 telegram.
Dow repeats the statements of its April 14 memorandum that just a reading of these questions makes clear that their purpose is discovery into NEPA environmental matters, not any so-called " synergistic" reaction between atmospheric effluents from Dow and radioactivity or radiation.
The latter was a Saginaw afterthought as it began to ap-preciate the value of the term " synergistic" at the April 3 Conference.
Indeed, it is noteworthy that Saginaw has chosen not to make a parallel inquiry of Applicant, although other questions of the same alleged general relevance to several parties have been duplicated, triplicated and quad-ruplicated -- the reason being that Saginaw hasn't the slightest interest what other effluents may be in the at-mosphere surrounding the Midland nuclear plant.
Its attack is on Dow, for purposes unrelated to the issues involved in this Hearing, and should not be permitted.
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Saginaw's conduct here is characteristic of its antagonistic, litigious approach to all issues in this proceeding.
If there is evidence that Part 20 is inadequate, or that some previously unknown reaction may take place b'ecause of the proximity of Dow production to the proposed plant, all parties should be informed --
promptly.
There is no place for such tactics when deal-ing with the public safety.
The Board should extend its earlier Order by directing that such information be produced by Saginaw, so that it can be analyzed and dealt with.
In the course of the argument at the June 7 Hearing,Dr. Goodman inquired with regard to possible synergistic effects resulting from the location of the nuclear plant adjacent to a chemical plant.
Dow of course agrees that the Board should consider these issues, and has not objected to any interrogatory or request for in-i formation properly bearing on such matters.
It emphasizes, however, that questions relating to the possible " synergistic" reaction between less than Part 20 releases from the Mid-land nuclear plant and atmospheric discharges from the Dow chemical plant are of a completely different character.
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4.
Motion to Prevent Dow from Interfering with Hearing (Saginaw 5/28/71 Memorandum, pp. 18-19).
Saginaw's motion to prevent Dow from making
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objections at or otherwise participating in the Hearing, is a new one to which Dow did not previously consider it necessary to respond.
The Board has ample power to deal with conduct by any party or its counsel which is improper in any respect.
Dow has in the past urged the Board to impose sanctions for failure to comply with its directions.
It believes that only by tight Board control of all parties and their counsel can this matter proceed expeditiously through Hearing to proper final determination.
Saginaw has not referred to any Dow conduct warranting the imposition of sanctions, and Dow considers its motion an impertinence to it and the Board.
Dow believes that continued tight reins on the proceeding will be required at the Hearing, just as at the pre-Hearing Conferences.
For example:
(1)
Repeatedly at the June 7 Conference, Saginaw indicated its intention to conduct an alleged cross examination which is not cross examination at all but strict discovery.
It based its asserted lines of inquiry on statements such as "It would be very interesting to know,"
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and referred to such subjects as a description in depth of the general nature of AEC staff licensing procedures.
Dow intends to object to any such attempt at examination which is not predicated upon some proper safety concern.
(2)
Saginaw also indicated its intention improperly to seek to apply the most rigid rules of evidence to this administrative hearing.
Indeed, it even asserted a right to an AEC wit-ness to the authenticity of an ACRS letter, which could be authenticated even in a murder trial by a simple certificate of a responsible official, without any testimony at all.
Dow intends to object to any such effort to apply improper and burdensome technical procedural requirements on the taking of evidence at the Hearing.
(3)
Instead of the informal administrative inquiry which the AEC statute and regulations contemplate even for a contested licensing pro-ceeding, there is every indication that the adversary, antagonistic legal character of the pre-Hearing Conferences will continue at the Hearing, which may be characterized by charges and statements addressed to the public rather than the Board, and misuse of procedural tech-niques.
It is especially important in such cir-cumstances, as indicated in a brief colloquy on this subject with Dr. Goodman at the June 7 Conference, that such antagonism not be permitted to deteriorate and result in loss of sight of the exclusive proper objective -- which is to arrive at a fair and proper determination at the earliest reasonable time.
Again Dow intends to do what it can to help prevent any such degeneration.
5 Miscellaneous.
Item 3 at page 24 of Saginaw's M'ay 28 memorandum requests that the Board decide its application renewing its interrogatories, and Item 5(a) demands production.of a Dow list of documents.
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s Dow's responses are the same as to the requests themselves, and are set forth in the body of this memorandum.
CONCLUSION Not all members of the Atomic Safety and Licensing Board have been present at all Hearings, and Dow therefore l
wishes again to state that its purpose in participating in these Hearings is to do what it can to assist the Board in coming to a proper and fair final determination, at the earliest reasonable time.
Dow believes that this can best be accomplished by limiting areas of inquiry to those defined t-
' he AEC Regulations, this Board's jurisdiction and proper procedure.
Each time Dow has objected to some area of inquiry outside the Board's jurisdiction, it has been met by charges that it is trying to suppress evidence or steamroller a result.
Calumny and invective hurt --
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especially in these times -- and have been used to create unfavorable publicity, which Dow deeply regrets.' But Dow believes and hopes the Board will agree, that the greater public interest requires that it not withdraw from the I
struggle to obtain a fair, proper final decis' ion as i
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soon as possible.
Dated:
New York, N.Y.
June 9, 1971.
Respectfully submitted,
/ fw f M
, / <<.' c... q KAYE SCHOLER, PIERMAN, HAYS
& HANDLER, Hearing Counsel for The Dow Chemical Company.
Of Counsel, Milton R. Wessel, Joseph P. Bauer, and William A. Groening, Jr.,
James N. O'Connor.
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