ML19331A882

Memorandum on Intervenors Request for Discovery Re Environ Issues.Urges Prompt Decision Except for Ex Parte Delays. Certificate of Svc Encl

ML19331A882
Person / Time
Site:	Midland
Issue date:	10/08/1971
From:	Kezsbom A, Wessel M DOW CHEMICAL CO., KAYE, SCHOLER, FIERMAN, HAYS & HANDLER
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007230913
Download: ML19331A882 (1)

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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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DOW MEMORANDUM P2GARDING ENVIRONMENTAL ISSUES This memorandum is submitted by way of preliminary, partial response to the statements of position and requests for discovery and other relief submitted by all Opposing Ep Intervenors, and in support of Dow's Motion for an early h.

i Conference with the Hearing Board on procedural matters.

The submissions of the Opposing Intervenors are lI.

shocking.

They proceed from outright impertinences, such Lp as EDF's advice to the Board "to re-read the C11 vert Cliffs 4

decision" (EDF, Issues, p.3), and callous admissions that i1 their prior representations as to their purposes were l

F (euphemistically) disingenuous, such as Saginaw's admission

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that its evidence on alleged synergistic effects of Dow effluents was not filed because it is really "an integral

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part of the cost-benefit and environmental analysis" and not a radioactivity issue at all (Saginaw, 9/30/71 letter, THIS DOCUMENT CONTAINS POOR QUAUTY PAGES G

p. 2), to a repetition of their prior refusals to comply with clear, unambiguous Board directions, such'as Mapleton's demand for a rehearing of the radioactivity

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issues and refusal to request discovery at the time directed by the Board, serving " notice that we will" when they feel like it (Mapleton, 9/28/71 letter, p.2, Huver affidavit, p.13) and EDF's return to the emergency plan V

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issue (EDF, Subj ects, p.11-12, 15 51-3), to outright (F

misrepresentations, such as EDF's repeated misstatements

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that the Board has ruled "that all discovery must be com-pleted by [ September 30]" (EDF, Issues, pp.2,3).

One cannot help but conclude from these sub-missions that Opposing Intervenors have by overt agreement or by conscious parallel action, determined that they will gain their objective by so overwhelming the Hearing Board and those supporting the application, that the plant will l:

either be dropped or the application never be finally determined.

i-They no more intend now to examine the tons of l

1 documents demanded (e.g., Saginaw, Ex. A) than they did I

when at Saginaw's insistence Applicant produced documents for them on December 1, 1970, which sat completely un-inspected for 1/3 year and, as the evidence at the Hearing

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disclosed, never were really examined at all.

See Exhibit A annexed, for just a sampling.

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H They no more intend to honestly and realistically offer evidence on the issues they tender, including even "the possible develcpment of a tourist and recreation in-dustry [in-Midland] to replace Dow" (e.g., EDF, Subjects, p.14, t 65), than when EDF failed even to appear before the Board after insisting upon its rights to be heard.

They no more intend to be bound by what happens from here on, in compliance with their demands for hearing on "all adverse environmental effects and social and ecc-notic costs associated with the nuclear fuel cycle, to wit,

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mining, milling, feed material preparation, fuel enrichment,

.y fuel fabrication, reactor operation, transportation, fuel reprocessing, and ultimate high-level radioactive waste r

I storage and disposal" (Mapleton, 9/28/71 letter, p.1),

than they were when Mr. Like came in for three days, shook us up by violating all the rules, and then absented himself leaving us quivering with anger.

The time has come to call a spade a' spade.

Op-posing Intervenors do not have the resources or capacity to handle the program they outline, and neither does the World Bank.

They are limiting their own work by-using extravagant demands that everything be decided in every proceeding (e.g., EDF, Subjects), in a form adaptable from

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case to case with hardly any retyping required, for use in 3

=; n every nuclear plant proceeding any Dlace at any stage.

Their unambiguous, transparent objective is to l

overwhelm Applicant, Dow, the AEC and the Hearing Board --

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and all'other nuclear plants -- and compliance with their i

demands would' achieve jusc that.

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• They are applying the strategy discovered and

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used most' effectively by adversaries when the Federal Rules

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of Civil Procedure were first adopted.

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Their procedural weapons cannot be defeated by

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logic, argument and analysis.

The meaning of UEFA and Calvert Cliffs is admittedly still unclear; any step taken j z.g in good faith to meet demands made with the sole objective b

of achieving tactical advantage or introducing error, b{___

requires a coordinated' approach at a broad l'evel of govern-I 4

ment, and neither the AEC, nor the Courts nor Congress has yet adequately attacked the problem.

Their tactics can only be met under present cir-cumstances by. keeping their noses tight to the grindstone,

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and by making sure that every demand they make and every step they propose is accompanied by equivalent effort at utilization on their part.

Their bluffs must be called.

Surely neither NEPA nor Calvert Cliffs was intended to give one party such a procedural advantage

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over the other, that a policy decision was impossible to reach.

Dow certainly has no objection to the fair con-

[II sideration of -any issue reasonably calculated to cast 99 light on the risk / benefit balance; indeed, it welcomes any evidence or consideration which might suggest that other,

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alternatives are preferable or that risks are involved.

j which have not been adequately explored.

But Dow is determined to do all that it properly can to block a partisan, improper, unfair and dangerous

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effort to deny the public the prompt, fair consideration

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and final decision to which it is entitled -- nuclear plant or no.

Unless they mend their ways, it believes that this can only be accomplished by maint'aining continu-

- ing observation and supervision over Opposing Intervenors, to assure that they do what they say they will do.

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The Board has other responsibilities, and can devote but limited time to Conferences and Hearings until

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next Summer.

The obstacles thereby presented are not insuperable, however, if the Board schedules Conferences l'

and Hearings now on all-available dates, with ample notice, and in the interim between such dates, keeps strict control by requiring memoranda and written reports so as to assure that Opposing Intervenors perform between sessions in

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accordance with their. representations.

If this is done, at some point their demands must begin to conform with reality and conviction, and we will be able to litigate the true issues which.chould be litigated -- or Opposing Intervenors' contumacious conduct will be so aggravated as to call for relief of a very different sort.

C Undoubtedly the Beard is puzzling as to how it ihl' should deal with flagrant demands which seem aoparently h

to fall within Calvert Cliffs and NEPA.

We do not believe' it can solve these problems, which are far broader than ever_ intended for a Hearing Board considering the construc-e tion of a single plant on a part time basis.

The chances for error and the reversal on appeal with which we are r

4t constantly threatened (EDF, Issues, pp.1,3) a're too great.

t The solution is to meet such tactics with similar ones --

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!D in requiring written motions, good cause showings and affi-

' davits, formal offers of proof, and full compliance with all the other rules -- or, as below, we can all try in

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good faith to work together for the public good.

A New Beginning We hereby serve notice upon Opposing Intervenors 1

that we will meet them head on if it must be.

But we are se still. hopeful that they will come to their senses and 6

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realize that the public interest calls for a full and fair trial of the real issues.

If they will honorably seek that objective, we will cooperate in every respect.

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As an earnest, we turn now to the arguments Dow

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believes are pertinent on the merits as to why certain areas of inquiry are not appropriate, and to an offer of discovery with respect to what might arguably be considered proper environmental issues.

The Alternatives To Be Considered

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Are Those Available to Applicant, Not To Its Customers

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A very substantial part of the discovery" sought C

i by the Saginaw Intervenors, and of the issues posed by the b-1 other intervenors, relates to Dow's decision to purchase

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steam and electricity from Applicant, and the alternatives available to Dow.

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l' Despite the fact that Dow's intervention in this

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proceeding has antagonized Opposing Intervenors into a

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continuing attack upon it and whatever they think will i-

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embarrass it or require it to disclose a commercial secret, Dow's intervention does not change the issues before the Board one iota.

Title 10 CFR $ 2.714(d).

The real issue is whether the Board must weigh the alternatives open to any or all of Applicant 's customers.

To state the question

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seems almost to answer it, at least in the context of a 5

We emphasize that the analysis in this section deals only u.

with the matter of discovery, not the ultimate issues at the Hearing.

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request for broad discovery at to which good cause must b

demonstrated.

Title 10 CFR $$ 2.740(a), 2.741(a).

=E M Dow understands from Applicant that the proposed

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nuclear plant would not have been sited at its present

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location in Midland, Michigan, were it not for Applicant 's process steam supply agreement with Dow.

Nevertheless,

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Dow does not believe that good cause can be shown for dimovery into all the considerations which led it to its purchase decision.

After all, Dow is simply one of many

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customers of the Applicant and the decision to construct the Midland plant undoubtedly evolved from consideration i-of many local power demands upon it.

It might be, for I

example, that another reason why Applicant chose to locate

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an additional plant in its territory was the anticipated i

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major electricity requirement of Gen ~eral Motors; but cer-tainly this Hearing Board should not without a substantial b

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5 good cause showing permit discovery into General Motors '

future needs for such additional power from Applicant, or

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the alternatives available to General Motors such as manu-facturing Buicks in Louisiana or Vauxalls in Germany.

The same is true of Dow.

From the outset of this proceeding, Dow has made clear that its intervention is primarily procedural, for

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the purpose of doing what it properly can to help expedite 8

I conclusion of the matter.

Although Dow has satisfied itself as to the desirability of the proposed plant from all considerations, radioactive safety as well as environ-

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mental impact, it is Applicant, not Dow, which bears the burden of proof with respect to all matters involved in the construction and operation of the proposed plant.

Dow believes that the risk / benefit alternatives open to discovery in this proceeding are the alternatives open to Applicant, not the alternatives available to Applicant 's anticipated customers, irrespective of whether or not those i.

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customers are parties to a licensing proceeding.

It may be that on a proper showing, Opposing h

Intervenors may discover of Applicant whether the local k.

power demands upon it are justified or should be met.

But this still is an inquiry of Applicant, not the cus-tomer.

Indeed, to d1scover customer's alternatives has no i-end.

Consideration of each customer's alternatives,

realistically, requires appraisal of whether the customer should preferably manufacture in one place rather than another; or whether it should better produce one product i

than another (Saginaw would even have us try the 2,4,5-T controversy [Saginaw, Ex.B,p.7, which has itself been 3

the subject of reams of congressional hearings and formal

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Environmental Protection Agency scientific advisory com-

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mittee [ favorable) analysis); or whether there might be available other methods of 9

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production utilizing less electricity or less process steam;

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or any one or all of an almost unlimited number of other Y

such issues.

"h Opposing Intervenors' Questions

"=i Regarding Dow's Alternatives Are Impossible To Answer Opposing Intervenors' inquiries and issues with -

regard to the alternatives open to Dow are predicated upon the mistaken assumptions that decisions have been made on issues never presented, and that dollar costs are the only determinative factors.

Their demands for discovery in these regards should be denied for the additional reason that the answers do not exist and would be speculative.

The Dow Board of Directors is made up of many

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t individuals, each of whom would consider all the relevant ep factors before making any decision.

As Intervenors have been advised, the only formal determinations Dow has made

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are (1) the original decision to commit itself, for a p

E H-limited period under specified terms, to purchase its electricity and process steam requirements from Applicant, and (2) the decision since then to renew that initial commitment for limited six-month periods, presently ex-pidag December 31, 1971.

There is no assurance that Dow will agree to a renewal of its purchase contract beginnf.ng January 1, 1972; that determination will be made by the 10

Dow Board of Directors upon the basis of all the infor-mation available to it at the time a proposal for renewal is presented, including Applicant 's pos' tion at the time and an evaluation of the probable outcome apd timing of this proceeding.

Opposing Intervenors have also predicated their positions upon the erroneous assumption that the sole key facts are comparative dollar costs.

This is also not the l

case.

For example, the comparative dollar cost of process steam in Midland and the Texas gulf is only one factor

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affecting the question of transfer of production from Midland to the Texas gulf.

This issue contains many ele-ments other than pure dollar cost, such as, for example, j

i the impact of transfer upon labor relations, Dow's long I

p term. commitment to the Midland community, the desirability of avoiding excessive concentration of production facili-y:

ties in any single area, especially one subject to natural disaster, and even such matters as the desires of Dow's Midland personnel to remain close to family and friends.

Dow management 's decisions to enter into and renew its purchase contract with Applicant, were of course

' based in substantial part upon its judgment that the probable resulting purchase price for electricity and process steam

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produced by Applicant would permit it to remain competitive 11

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in the Midland division.

But even this j udgment was not based upon strict price comparisons.

It involved con-

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alderations of time as well as price.

For example, had

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the anticipated date of commencement of Applicant 's supply

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been '1985 rather than 1975, the probable cost 'and conse-quences of interim measures required during the period

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1975-1985,might vell have led to a different conclusion.

..==s The foregoing also suggests some of the problems incident to a consideration of the alternatives involved in-locating the proposed Hidland plant at a site other than NI

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presently planned.

Dow understands from Applicant that

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transmission of process steam over a distance will substan-IT~

tially increase the cost of such steam.

In addition,-loca-0 Jg tion of the proposed plant at another site would involve a p --

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' further substantial delay in anticipated commencement of 17 supply, the total impact of which would also be an important

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ingredient in any management decision with respect to h-Es v.

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purchase.

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Discovery Into Dow's Emissions j::

Affecting the Environment F

(Other Than Impacted By the Proposed-Nuclear Plant) Should Be Denied j

-Opposing Intervenors seek also to inquire into the nature of the emissions from all of Dow's present Midland (EE.+h

. _._;s production facilities which may affect the environment,

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E i-apparently on the assumption that such discharges will continue in the absence of approval of the proposed nuclear power plant or te impacted by it or an alterna-

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Such is not the case.

Whatever Dow's present steam and power produc-E' tion problems, there is sinply no question that on any

.. _f long-term basis Dow's electric and steam production dis-l' charges must and will meet all the requirements of law.

Dow's emisssons today cr in the future are simply not related to tne nuclear plant issue, except to the extent

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that the prepcsed plant provides one solution to Dow's problems."

Dow of course continues to consider and act upon k.

interim measures,.such as partial conversion.from coal to oil fuel.

But as at least presently planned, this relates only to the period until availability of electricity and i:.....

steam from the proposed Iddland nuclear plant, and does not~

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contemplate the increased requirements of the later 1970s

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and thereafter.

The high costs per unit of output in con-nection with such partial interim conversion have to this Y

And of course also excepting insofar as the proposed nuclear plant may permit electricity and steam production emissions to be below the_ legal requirements.

But this affects only a tiny fraction of the number of Dow's overall production

_ ue emissions affecting the environment.

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point seemed acceptable to Dow on a most limited basis, but would not be competitive on any long-range basis.

Accord-77 ingly, as stated at the outset, a comparison of the costs ISE?E

.25 of a unit of electricity or steam manufactured with oil 26 57 res=j fuel with the anticipated costs from Applicant's proposed

~ if plant would not.be meaningful.

=M To summarize, Dow believes that in the first 7=;

instance its management decisions should receive the same

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treatment as those of any other proposed purchaser of out-put of the proposed nuclear plant.

At the present time, MN

E Dow has committed itself to purchase electricity and process steam from Applicant on the terms specified.

If such supply

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is not to be furnished to Dow, it will make its own deci-i i

sions as to how it will proceed.

If Applicant wishes to

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- -i 7s propose alternatives other than production frca the prcposed.

Midland nuclear plant, Dow will try to come to a judgment

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as to whether such alternatives are acceptable to it-just.

' 1;.:3 eM as would any other anticipated purchaser.

Dow does not E-y.

believe that its basis for an/ such determination is a proper area for inquiry by this Hearing Board or any party.

Voluntary Disclosure of Dow Information Despite Dow's conviction that good cause has not 2.,[5..

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agreeable to furnishing the following information to Opposing Intervenors, upon their representation that they truly mean to get down to proper business:

1.

Present cost per unit of electricity and steam manufactured by Dow.

2.

Anticipated cost per unit of electricity and steam manufactured by Dow, if conversion to fuel oil were completed.

3.

Anticipated cost to Dow per unit of electricity and steam to be produced at Appli-cant's proposed nuclear plant.

4.

The anticipated increased cost for each unit of distance the nuclear steam supply system is moved away from its present location.

(Natural gas supplies are simply not presently available to justify a com-putation of costs for that alternative.)

l-f CONCLUSION

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Obviously we are angry.

Intervenors purporting i-to represent the public are misusing and abusing legal

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We think the Calvert Cliffs Court would agree, process.

and be equally shocked by the conduct of those who answer

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to no one but themselves.

We remain hopeful that Opposing Intervenors will join with us in moving this case forward, so that it can be decided promptly when the final environmental statement is available.

We concur that delays such as the ex parte 15

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E APPENDIX A

.!".Z.. T2 Examples of documents demanded of Dow, Applicant and the f

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AEC Staff (From Saginaw, Exhibit A):

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"All documents dealing with chemical explosions at Dow's Midland complex and elsewhere, whether at a Dow facility or not, witnin the past 20 years.

= =r This category fairly calls for the source of eacn such explosion, the character of the explosion, the chemicals or other explosives involved, the' damages incurred and the physical characteristics

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of the explosion such as the direction of the blast

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and the geographical area effected [ sic] by the blast;"

This demand may not include World War II explosions because of the twenty year limitation, but it certainly in-cludes Korea, Viet Nam and the Arab-Israeli 6 Day War!

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"All documents dealing with or showing the reli-ability, in terms of maintenance and forced outage, of each nuclear power plant in the United j~

States and for eacn fossil fuel 7 ant in the i-United States.

There is no time -. imitation with I

respect to nuclear power plants, but with respect to fossil fuel plants, documents reflecting in-formation. earlier than 1955 are.no. called for;"

"All documents dea)ing with releaset by Dow Chemical

[ 15 in normal and abnormal circumstances of any chem-3 ical, solid or substance, to the a'mosphere or to t

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the rivers and streams over the last ten years.

This category calls for a specific description of

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each such chemical, solid or substance, whether re-leased normally or abnormally, how such chemical i

was released, what steps were taken to prevent any i.

such future relea'se and whether such steps have been successful.

This category of documents also fairly calls for the concentration of such releases and the effects-it has had upon rivers and streams and the atmosphere."

It is difficult to believe that Opposing Inter-2..1-venors and their counsel really mean what they say in these demands, yet Exhibit A, which alone contains twenty-six i

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demands of this kind, is identical in these respects

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(including even the typographical error!) to an informal

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document discovery request served by Saginaw almost two months before.

Indeed, Exhibit A actually exoands the informal request, and is obviously therefore a reflection of a considered approach to these matters.

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Such tactics have characterized Intervenors' conduct from the inception of this case en November 17, 1970.

If this is the informal approach Opposing Intervenors

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intend to pursue, clearly good faith negotiations not under the strict formal control of the Hearing Board will continue to be impossible.

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CERTIFICATE OF SEltVIr}'__

I, Milton R..Wessel, Esq., a member of the firm of Kaye, Scholder,.

Pierman, lloys & Handler, hearing counsel to The Dow Chemical Company in the above matter, hereby certify in accordance with the provisions of 10 C.P.il.

3 2.732(c)(2) that on October 8, 1971, I served a copy of the attached:

Dow Memorandum Regarding Environmental Issues by postage prepaid mail, upon the persons uhosa names and addresses are

' listed below:

Arthur W. Murphy, Esq., Chairman Ar.cnony Z.

Roisman, Esq.

Atomic Safety and Licensing Board Berlin, Roisman & Kessler

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Columbla University School of Law 1510 N Street, N.W.

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Box 38, 435 West 116th Street Washington, D.C.

20036 New York, N.Y.

10027 Richard G. Smith, Esq.

Dr. Clark Goodman Smith & Brooker University of Houston 703 Washington Avenue 3801 Cullen Boulevard Bay City, Michigan Houston, Texas 77004 Stanley T. Robinson, Esq.

Dr. David B. Hall Chief, Public Proceedings Branch Los Alamos Scientific Laboratory Office of the Secretary of the P.O. Box 1663 Commission O

Los Alamos, New Mexico 87544 U.S. Atomic Energy Commission

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Washington, D.C.

20545

'Algie A. Wells, Esq./ Chairman Atomic Safety and Licensing Secretary, Board Panel United States Atomic Energy U.S.

Atomic Energy Commission Commission Washington, D.C.

20545 Washington, D.C.

20545

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Myron M. Cherry, Esq.

United States Atomic Energy Commissic 109 No. Dearborn Street

, Public Document Room Chicago, Illinois 60602 1717 H Street, N.W.

Suite No. 1005 Washington, D.C.

20545 Thomas F. Engelhardt, Esq.

' Mary Sinclair mg

' Regulatory Staff 5711 Summerset Street U.S. Atomic Energy Commission Midland, Michigan 48640 Washington, D.C.

20545 David Comey William J. Ginster, Esq.

109 North

Dearborn Street,

Suite 4, Merrill Building Suite 1001 Sagina.:, Michigan-48602 Chicago, Illinois 60602 James A.

Kendall, Esq.

Irving Like, Esq.

Currie & Kendall Reilly, Like & Schneider 135 North Saginau Road 200 West Main Street Midland, Michigan 48640 g

Babylon, New York 11702

=..

Robert Louenstein, Esq.

Lowenstein and Newman 1100 Cennecticut Avenue, N.W.

@ M dgej Washington, D.C.

20036 Milton R.

wessel John K.~Restrich, Esq.

Robert Neuton, Esq.

212 West Michigan Avenue U.S. Atomic Energy Commission Vackson, Michigan 49201 Washington, D.C.

20545