ML19338B993

Discusses Mctiernan 770927 Review of Midland Matter.Ethical & Policy Issues Re Midland Should Be Referred to Higher Authority for Decisive Action.Certificate of Svc Encl

ML19338B993
Person / Time
Site:	Midland
Issue date:	02/16/1978
From:	Roisman A National Resources Defense Council
To:	Nelson J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
NUDOCS 8007291143
Download: ML19338B993 (7)

Text

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Natural Resources Defense Council,Inc >

n 917 85TH STREET, N.W.

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2 b Jerome Nelson, Esq.

General Counsel 5 $4&* =

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 cb y

Dear Jerry:

I have just finished reading, with great dismay, the McTiernan Review of the Midland Matter (9/27/77). I am deeply disturbed by the fact that it reflects OIA's use of so-called legal " niceties" -- I would call them evasiens of the clear intent of the law -- to excuse the conduct of Consumers and the Staff in the Midland proceeding. The fundamental legal principle which must prevail if the licensing process is to be effective is that all arguably relevant data must be fully disclosed. Undeniably Consumers sought to prevent that from occurring in this case and the fact that it failed is a monument to the tenacity and acumen of Myron Cherry, not to any reformation of Consumers. <

For its part, the Staff apparently continued to pursue the philosophy that its duty is to defend its position in the hearing, not to fully reflect all divergent relevant posi-tions. This case is a classic example of why that approach is not in the public interest.

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In the memo, McTiernan assumes that because Dow-USA will honor the contract it is legally permissible to seek to "down play" -- I would say suppress -- the existence and extent of the Dow-Michigan position. This conclusion is dangerously faulty. First, the parties cannot be allowed to define the issue and then only produce information rele-vant to the issue as they define it. This would merely put a premium on disingenuous argument which c6uld be used to avoid full factual disclosure. Consumers knew that at least some parties felt the data was relevant. It was obligated to fully disclose that data -- not only under the threat of action by opposing counsel or in response to discovery --  !

and then argue about its relevance for the hearing. Second,

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Jerome Nelson, Esq..

February 16, 1978 d Page~two McTiernan misses the whole point of the hearing by implicitly i accepting the theory that Dow's present attitude is the i relevant issue. The. issue is whether Dow will buy the steam if Midland is built. The answer to that will be clearly

. affected-by the attitude of Dow-Michigan. It is therefore vital to the case that Dow-Michigan's attitude be fully

, disclosed.

In another part o'f the McTiernan memo, he applauds Consumers for being forthright in presenting data on the i contract dispute and notes that the existence of a dispute had been reported in.the press. What is totally lacking in i~ the memo is an appreciation of the crucial legal di'ference between' newspaper reports _and hard testimony and between the reluctant downplayed ~ testimony of a muzzled witness and the candor. required for effective hearings. Someone should remind OIA that the sworn oath by each witness is to tell the " truth, the whole truth, and nothing-but the truth."

In no sense did Consumers attempt to fulfill this requirement and that is and should be a-violation of the law. According to McTiernan, Consumr!1 is innocent of criminal conduct because it was ineffectual. But the focus should be on the criminal intent which was clearly present. ,

McTiernan's response to the'Hoefling memo is just as .

shocking, maybe even more shocking.. The Staff cannot be allowed to become so committed to a position that it ignores a totally acceptable contrary view of the legal issue as framed by_Hoefling. Even more than Consumers, the Staff has a duty to full disclosure unrestricted by the theories of C its' case. In addition, McTiernan passes over without. comment the extraordinary statement that part of the reason the Staff

! took a-legal position-against the relevance of Dow's. future ,

attitude as .to the need for Midland was~ "the fact that such  !

speculation could have the 'effect of stopping construction after millions of dollars had been spent.". What possible justification can there be for such an attitude in a regula-tory agency or in a staff charged with the duty to see that the licensing board is fully apprised of all relevant facts and issues? .At-the root of the Staff attitude in this case is the Staff's legally indefensible generic belief that the licensing boards should not-really decide the issues in these cases and it = is the Staff's duty- to give the licensing board p e w -gy. ---- - y ai y-- .a. 9

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Jerome Nelson, Esq.

February 16, 1978 .

Page three

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aut narrow a view of the case as possible to avoid delay or interference. This attitude has been dominant in the Staff'during all the years'I have practiced before the 4

' Commission.

.I believe it in~ time for higher authority to-take control of the ethical and policy issues in Midland and to take decisive action. .First, NRC should not be prosecutor, judge amd. jury on charges of illegal conduct by parties appearing before it. . Consumers' conduct, as revealed on the record,.at least provides probable cause for legal action and at this point the matter. should be referred to Justice for its independent assessment of the case.

Frankly, McTiernan does not appear to understand.the issues and in- any event an internal audit process is inappropriate for evaluating the legality of actions taken by an outside entity in NRC proceedings. Second, the issues raised by the Staff conduct should be fully explored generically at the Commission level. I propose the Commission initiate a possible rulemaking with an advance notice -in the Federal j Register to consider amendments to 10 CFR Part 0 to define clearly the role of the Regulatory Staff. Included should be the following issues:

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l. Is the duty of-the Staff-ho take and de' fend a position, or to see to it that the record is

, fully developed? Can it do both?

2. To whom is NRC responsible? The Commissioners,

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the licensing boards, ELD, the public? Any com- -:

bination of the above?

3. To whom is ELD responsible? The Commissioners, the licensing boards, NRR, the public? Any com-f bination of the above?

4. Depending on,the answers to.the previous questions, how should the Staff carry-out its duties.and what are its responsibilities to the Commissioners, the-

. . public, the applicants and licensees, and other parts.of the Commission?

The Staff should: express its. views on these subjects (not Lpreviously' reviewed by-the Commissioners, General Counsel, 5

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Jerome Nelson, Esq.

February 16, 1978  ;

Page four OPE, etc.) simultaneously with the Federal Register notice.

The Staff should not need more than one month to prepare such a document. If it takes longer th.an that, it would mean the Staff has never even figured out for itself what its duties are. If that is the case, the F2deral Register

, notice should be filed with that admission.

4 I have sent this only to you within the Commission out of an abundance of caution with respect to the ex parte rules. I urge you to distribute it to the Commissioners and 1 i

staff personnel at the earliest date to get their views.

As you will see, I have distributed this to interested persons outside the agency because I believe the issues raised by the McTiernan memo are sufficiently vital that further inputs to the Commission at this time are essen-tial. I have not released this to the press and am asking those to whom it is sent to similarly avoid relasing it j to the press until you and the Commissioners have had some j time to take action. I hope that you will give the issues  ;

raised here the level of serious and personal attention I which I believe they, warrant. .

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, Sincerely, ,,

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Anthony Z. Roisman

, Staff Antorney l

l cc: Myron M. Cherry, Esq.

i Henry R. Myers Frank M. Potter, Esq.

E. Kevin Cornell Robert Pollard J.,G. Speth David D. Comey w

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UNITED f.TATES OF AMERICA a NUCLEAR RF.GUI.ATORY CO:O:ISSIO:i In the Matter of ) '

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CO !SIDERS POWER COMPANY ) Docket No.(s) 50-329

) 50-330 (Midland Plant, Unit Nos. I and 2)

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-1 CERTIFICATE OF SER"ICI -

I hereby certify that I have this day served the foregoing docu=ent(s) upon each person designated on the official servico list co= piled by

.the Office of the Secretary of the Commission in this proceeding in accordance with the requirc=ents of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Coemission's Rules and Regulations. ,

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Dated at Washington, .C. this -

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, day of harc _197(.

f OM 1((f/N.RL(L, -,

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Of fied of the Secretary of. the Commission

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p UNITED STATES OF AMERICA  ;

NUCLEAR REGULATORY COMMISSION

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In the Matter of )

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CONSUNERS POWER COMPANY ) Docket No.(s) 50-329

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

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SERVICE LIS?

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Marshall E. Miller, Esq. , Chairman Atomic Safety and Licensing Board U.S. Nuclear Reguk tory Commission-Washington, D.C. 20555  !

Dr. Emmeth A. Luebke James A. Kendall, Esq.

Atomic Safety and Licensing Board Currie and Kendall U.S. Nuclear Regulatory Commission 135 North Saginaw Road Washington, D.C. 20555 Midland, Michigan 48640 Dr. J.- Venn Leeds , Jr. Judd L. Bacon, Esq.

, 10807 Atwell Consumers Power Company Houston, Texas 77096 212 West Michigan Avenue Jackson, Michigan 49201 ,

Office of the Executive Legal Director

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Counsel for NRC Staff William J. Ginster, Esq.

- U.S. Nuclear Regulatory Commission Merrill Building, Suite 4 Washington, D.C. 20555 _,

Saginaw, Michigan 48602

- Myron M. Cherry, Esq. Louis W. Pribila, Esq.

One IBM Plaza Michigan Division Legal Dept. l 47 Building -

Chicago, Illinois 60611 Dow Chemical USA Harold F. Reis, Esq.

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Lowenstein, Newman, Reis & Axelrad Honorable Curtis G. Beck 1025' Connecticut Avenue, N.W. Assistant Attorney General Washington, D.C. 20036 State of Michigan Seven Story Office Building Honorable Charles A. Briscoe 525 West Ottawa Assistant Attorney' General Lansing, Michigan 48913 State of Kansas Topeka', Kansas _ 66612 Lee Nute, Esq.

Michigan Division Irving Like, Esq. The Dow Chemical Company Reilly, Like and Schneider 47 Building

- 200 Weat Main Street- ' Midland, Michigan 48640 Babylon,.New York 11702

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150-329, -330/~%

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-* Anthony Z. Roisman, Eso.

Natural.Resou'rces Defense Council 917. - 15th Street, N.W. g Washington, D.C. 20005-

-Joseph Gallo, Esq.

.Isham, Lincoln & Beale 1050 - 17th Street, N.W.

Washington, D.C.. 20036 Michael I. Miller, Esq.

Caryl A. Bartelman, Esq.

• Isham, Lincoln & Beale One First National Bank Plaza -

Chicago, Illinois 60603 i Ms. Mary Sinclair 5711 Summerset Street-Midland, Michigan 48640 Mr. Steve Gadler, P.E.

2120 Carter Avenue St. Paul, Minnesota 55108 Grace Dow Memorial Library 1710 West St. Andrew Road Midland, Michigan 48640 I

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