ML19338C153

Memorandum in Opposition to 710621 Saginaw Intervenors Motion to Compel ACRS Testimony.Application for ACRS Subpoena Should Be Denied & ACRS Repts Should Be Admitted Into Evidence & Weighed as ASLB Deems Appropriate

ML19338C153
Person / Time
Site:	Midland
Issue date:	06/22/1971
From:	DOW CHEMICAL CO., KAYE, SCHOLER, FIERMAN, HAYS & HANDLER
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8008050604
Download: ML19338C153 (4)

Text

_

~ -.-. - -.

3- -

- ~,,,:; ~

~

h 2

k h

UNITED STATES OF AMER 1

/r 1

g y

~ ATOMIC $NERGY COMMISSION 2-4 N s

<a0,tYw hr % 9

\\

In the Matter of

)

g 4

CONSUMERS POWER COMPANY.

)

Docket Nos. du-$e9 Midland Plant, Units 1 and 2

)

50-330 l4.2-7/

DOW MEMORANDUM WITH RESPECT TO ACRS TESTIMONY This memorandum is submitted in opposition to the June 21, 1971 Saginaw Motion to compel ACRS testimony.

The Motion purports to be based upon Applicant's offer into evidence of the ACRS June 18 and September 23 Reports, as required by Section 2 743(g) of the AEC Regulations.

The Sagint. argument is that:

"no-evidence, d'cumentary or otherwise, may be o

received into evidence,without providing parties to the proceeding an opportunity to test the truth and accuracy of the proferred submission by cross-examination" (Saginaw Memorandum, page 1,

. paragraph 2).-

The'Saginaw conte tion ir, wrong.

Even in a criminal trial for treason or murder, properly authenticated documents may be admitted into evidence if the required foundation is furnished--such as an official certification.or proof of a regular course'of business practice.

And :the AEC Regulations as to admissibility, as would

=

-be expected of any administ'rative body's rules, are of l

80080&O[C uA x

,e I ',

.b 1

h' %

N

- T

%%,4

+-

4 g.[

4 q.

o p

t g

.'S 4.-

y-()'

1. )

A c.

Th's, Section--2.743(h) provides course 3farfmore111beral.-.

u

that'an officialfgovernment, record'or~~ entry may be evidenced t

~

..byfan officiallpublication..or.by a_ copy properly attested and certified;fsubsection (1) authorizes the taking ofL "off'.cial : notice" not.only of. those : facts of which J udicial.

notice-might.be taken'by1 courts of the United States.but "of any, technical or scientific fact within the knowledge of the t

' Commission 'as' an expert body"; 'and subsection ~ (c) 'provides

~

' for'the'admissio'n1of " relevant,. material, andJreliable.

evidence" withoutoreferenceito the_ rules as to competence.

Appendix A III-(c)(4)-provides for the_ admission of testimony "in written form" and.on a "roundtable basis", and' subparagraph' (7)findicates-generally that the Board-is="not' bound to view

' proffered testimony according to its admissibility under 7

strict applicationLof the. rules of evidence 'in judicial pro-I ceedings".

- Saginaw has_already~ conceded the authenticity'of the ACRS. reports-, which-ipao' facto renders them' admissible in evidence.

Even-had the concession-not.been made or were

~

Saginaw.. permitted.to withdraw it;at this point, authentication

-would be a simple' matter, either by. certification by the AEC Secretary pursuant to Section 2.743(h') or by proof'of receipt

~

- by Applicant in_the regular' course of business..

i Wholly _ apart from the matter _of authenti'ity, we c

submit:that1Sa'inaw dossinot have the_right to cross-examine g

. wi6h' respect to the ACES de. liberations--and that-indeed this

Boar'dfdoes notih' ave the power.to subpoena

an ACRS member.

2

,#M.wv *%+-n dJ-

' *mE* $+- 7 e

r+%9W m'A-**

d-*

--w

,u

~

1w

[

L ani "9

.._. 2 v.

u.

w

'~~

8

~

s

-Applicant *s ee:uments in~ opposition.to the Saginaw-effort to

^~

cross-examine'the.AEG ctaff with respect.to its safety evaluation review--the - so-callad: Morgan ~ doctrine--are, of icourse even more; applicable (to.the AORS deliberations and

will not be^ repeated here.--But,.there.is an additional-

~

' reason why.this. Board may not permit Saginaw.to inquire

~

into the ACRS deliberations,in that-the-AEC regulations

~

foreclose such an inquiry, r

L In dealing with the. matter of a Hearing Board's right to rely)upon expert administrative conclusions with respect L

to an unc'ontrovert'ed issue,* Appendix A, Part III(g)(1) l:

states that:

l

" Boards.are neither required ner expected to duplicate the review -already perfor:ned by the regulatory staff and the.ACRS and they are authorized to rely'upon the testimony.of the regulatory staff I

and the applicant, rand the conclusions of the ACRS, which have:not been controverted by any party."

However the. Regulation permits the Board only to test the adequacy of the Staff's review, not the ACRS ' review--the-l i

i Board must accept the ACRS conclusions, giving them what-

~

1 i.

ever. weight it.regards-to be appropriate,and'cannot test them= as it tests-the : Staff.

The section continues:

'"The Board will not conduct a de novo' evaluation of p

-the: application, but rather, will-test the sufficiency

~

-of the:information contained in the' application-and E

l

~

1. Wherefan..issuelis controverted, it'is the position of i

Dow,cas-weLunderstand itito'be.the. position of Applicant and 7the s AECfstaff,that. the Board must' proc ~ ed to decide the merits e

[

?of:(the: controversy, -and that the'. adequacy of the. con-clusions of: the ' Staff (and _'a fortiori of the ACRS).-is not

~

En proper: subject of inquiry' Tor ;eltner the Board. oR an t

interver.or.y 3:)

,~,n.. e ;- s = : +.

-m-m a :~

-n

=

.w

~ --

. ww ;.w.22;,

.w ;mj[j w

6. _ '.w,c.go, a sma_

g,

J.

~:

the: records-of the proceedings and the. adequacy of the

staff's review to support the proposals of?the

. Director;of. Regulations."#

. CONCLUSION The consequences--of permitting Saginaw to interrogate members'of'the.ACRS'as to the?~ qualifications and..delibera-tions would be:most unfortunate.

At least' in t'. ab'sence.of-some:-very; specific and positive showing of.such: magnitude-as to cast doubt on the very integrity of the ACRS review h.

proces.s,-the1 application for an ACRS subpoena should be

~

denied and~the ACRS reports should1be admitted into evidence i

for what.they purport to'b.e, to be given such' consideration and: weight as the Board deems appropriate when all the evidence is in.~

4 Dated:

Midland,fMichigan June 22, 1971

' Respectfully submitted.

t A

$)424 tAl$

r A

K

-Scholer, Fierman ays &

Handler

Hearing Counsel-for The Dow

. Chemical. Company I

Of_ Counsel, Milton R. Wessel

Joseph P.1Bauer

.:and-William A. Groening,-Jr.

James '.N. ' O ' Connor

-* Underlining:added throughoutlthis Memorandum.

...u

-n.. +

.a wmu

.=