ML19331B246

Discusses Apparant Inconsistent Position on ACRS Testimony. Requests Opinion & Interpretations of Regulations Re Whether ACRS Testimony May Be Adduced W/O or W/Commission Permission

ML19331B246
Person / Time
Site:	Point Beach, Midland
Issue date:	08/22/1973
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Rowden M US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 8007280839
Download: ML19331B246 (3)

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August 22, 1973 &g DOC 3' l 9 Q tans g

• Marcus Rowden, Esq. [I AVE. 21973

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General Counsel m: 15

• 4 U.S. Atomic Energy Commission Washington, D.C. 20545 h/ "' *[/$a" s 's Re: Apparent Inconsistent Position on ACRS Testimony - Docket Nos. 50-329, 50-330, 50-301, and RM 50-1 Dea;* Mr. Rowden:

Last week I testified at hearings held by Comis-sioner Denoberg of the State of Pennsylvania Insurance Commissica. As you know, these hearings related to Price-f.nderson Act legislation.

Since one of the functions, I presuma, of these hearings is to determine the nature of the risk underlying the financial protection required by the Atomic Energy Act, Commissioner Denenberg appropriately sought the advice and testimony of the Advisory Committee on Reactor Safeguards.

Atomic Energy Commission witnesses, Edson Case and Thomas Engelhardt, testified before Commissioner Denenberg that requests of the ACRS to testify had to be directed to the ACRS since that committee was independent of the Atomic Energy Commission. Accordingly, Mr. Case and Mr. Engelhardt

! declined to assist Mr. Denenberg in securing the testimony I o f the ACRS .

I call your attention to the orders entered in the Midland and Point Beach proceedings which s,ecially limited j the intervenors efforts to secure ACRS testimony in any fashion. As you know, in those proceedings the AEC's Regu-latory Staff took the position that the ACRS was a part of the Atomic Energy Commission, that is employees of the Commission, and that the Commission could determine when and where the committee vould testify. The ACRS was not l

permitted to appear perst,aally or by way of interrogatories.

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August 22, 1973 Pago 2 Moreover, in the ECCS hearings when the intervenors attempted to secure the testimony of the ACRS, the Commission issued an order preventing their testimony, obviously exer-cising a strong degree of control over the ACRS. The ACRS was limited by the Commission to testifying via interrogatories and no follow-up questions were allowed.

I further call your attention to 10 CFR S2.720(h) which singles out for special treatment in hearings before the Commission "AEC personnel." That term is defined in 10 CFR S2.4 (p) and includes members of advisory boards. Finally, 10 CFR Sl.22(b) makes clear that the ACRS is such an advisory board.

As General Counsel, the regulations require you to make definitive interpretions of Atomic Energy Commission regulations. As a result of the experience my clients have had in the Midland, Point Beach and ECCS proceedings, I have come to assume that the practice before the Atomic Energy Commission in connection with ACRS testimony is that such testimony may not be adduced without the permission of the Commission. On the other hand, the statements Mr. Case and Mr. Engelhardt made under oath at Commissioner Denenberg's hearings indicate that the ACRS is an independent body whose testimony aisy be adduced by dealing directly with them.

I am therefore requesting, on behalf of my clients in Point Beach, Midland and ECCS, a definitive opinion by you as to the status and nature of the ACRS insofar as its testi-mony is concerned. If your opinion is that Messrs. Case and Engelhardt were incorrect in that ACRS testimony may not be adduced withcot permission of the Commission, then I assume that you will move forward to correct the record with Commis-sioner Denenberg and offer whatever assistance you can in order for the ACRS to testify before Commissioner Denenberg. I f, however, Messrs. Case and Engelhardt are correct, then it seems to me that the Commission should sua sponte reopen the Midland, Point Beach and ECCS proceedings to permit the service- e of nubpoenas upon the ACRS.

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Marcus Rowden, Esq.

August 22, 1973 Page 3 It does not seem fair to take inconsistent positions concerning the testimony of the ACRS when the net effect of such inconsistency is to continue to foreclose the public from having access to the views of the ACRS. As you know, I and my clients have had absolutely no success in getting the ACRS to remove the protective cloak of secrecy, despite the fact that the Committee's interests would be well served by being more receptive to the public, who after all pays its salary.

In view of the fact that the ECCS record has now been sent to the Commission and in view of the fact that the Midland and Point Beach matters are on appeal, I would appreciate a prompt response to my request.

Sincerely, I

L (f t o )- / *L MYRON M. CHERRY

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MMC /bsd CC2 Honorable Herbert S. Denenberg, Pennsylvania Commissioner of Insurance Chairman, U.S. Atomic Energy Commission Secretary, U.S. Atomic Energy Commission Chairman, ACRS Mr. Edson Case Thomas Engelhardt, Esq.

Counsel for Applicant and Regulatory Staff in Point Beach Proceeding (Messrs. Charnoff and Gallo)

Counsel for Applicant Dow Chemical and Regulatory Staff in Midland Proceeding (Messrs. Reis, Wessel and Kartalia)

Counsel in ECCS Proceeding (Messrs.

Cowan, Edgar, Reis, Perlik, Freeman and Murray) l k