ML19330A115
| ML19330A115 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 05/15/1971 |
| From: | Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, Saginaw Intervenor, Sierra Club |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007150887 | |
| Download: ML19330A115 (37) | |
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COHOU?:ERS PC"ZR COMPANY Docket Nos. 50-329 50-330 Midlan P1 nt Units 1 and 2 I?;TER7E:TOS.3' RESP 0 HSE TO BRIEFS OF APPLICANT A:!D R2';ULATORY STAFF III SUPPORT OF TIIEIR 02J1:0T10:10 TO I iTERVEHORS' IIITERROGATORIES DIRECTZD TO THE ATO:IIC EITERGY COIG!ISSION AND ADVISORY CO:C:ITTEE Oli REACTOR SAFEGUARDS I I.
Introduction *
'I On March 22, in accordance with and in reliance upon the rulings of this Board, and not in violation of any Order
. thereof, Intervenors filed a series of interrogetories addressed to all other parties herein, except those Intervenors repre-sented by Mr.~Ginster. The Board permitted the interrogatories to be filed pursuant to 10 C.F.R. 62 740(a) and only after dis-cussion and argument by the parties concerning good cause and the necessity to frame the issues prior to any hearing.
(See generally transcripts of prehearing conferences in !
Midland, 1970 and in Chicago, January, 1971.)
-* Ue trust the Board will not be influenced by the unlawyer-l like-succostions by.some of the parties that our interrosa- I
! tories at u:lich 1.e labored for many weeks were interposed-l for de]ay. ' '
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The Daard did not condition its ruling upon any Inter necessity of showing good cause if objection arose.
No one raised any question as to the propriety of requiring the Atomic Energy Commission (AEC) or ACRS to respond to interro atories, and no one offered any objection to the scope of discovery 1/ when Intervenors announced in advance that a major thrust of the ' interrogatories would be to secure fac-tual information underlying'the basis of the PSAR and the Staff safety evaluation and to inquire into the adequacy of the factual support for the Staff's and ACES's revieu.
The Regulatory Staff was eager to assist and.even to arrive at a Stipulation of the Parties, until such a procedure seemed to threaten its vested interests and require the Staff to participate in a meaningful way.
Intervenors relied upon the process of discovery to assist them in the preparation of their case and indeed an-noun ;d this critical reliance in their Petition to Intervene.
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As indeed no one could, inasmuch as the recently revised Rules of Practice on discovery, effective in late 1970, specifically provide for the. serving of interrogatories upon the AEC. 10 C.F.R. 52.720(h) This Rule is in addition to the general rule on int (2)(11).
errogatories found in 10 C.F.R. $2.740 which was always applicable to the Staff because it is a party, s
If the AEC wished to attempt to restrict the serving of interrogatories upon the AEC or even to exempt the ACRS, it could have done so. In fact, the new rules revision under-score the right to serve interrogatories upon the AEC, and hence its obligation to respond.
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.1 (See e.g. Saginaw, et al., Petition to Intervene, pars. 30, 41 and 80; see also letter of Intervenors' counsel to Chairman Murphy, et al . , l' : 5,1971) .
I Cc: trary to statements by Applicant and others, as-certin~ that Intervonors have already been provided with all .
the information they need, the following is, in fact, the state of progress and fairness in discovery: ,
1 (a) The Atomic Energy Commissian, mora than thirty l days after being in receipt of' Interrogatories addressed to it, filed a self-serving memorandum, without specific objection as is required by the rules,($2.740(f), to the effect that it does not have time to answer the questions and offered factual assertions unsupported by affidavit; (b) The Applicant gratuitously offered to support the position of the Staff,before the Staff had taken
, any position, and filed a.brief in support thereof; the Staff and Applicant are not in agreement; (c) Dow Chemical refuse'd to respond to a whole host of substantive interrogatories and refused to identify the relevant documents it admittedly had; the Board sustained that effort; l -3'
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(d) The Midland Nuclear Ccmmittee said that even though it intervened it did not know very much about anything, and the Board agreed with them; (e) Applicant produced a substantial number of docu-ments which, however, did not reflect the basic scientific information gathered by Bechtel and Bab-cock & Wilson and presumably used by them in the preparation of the PSAR for Applicant; (f) The Regulatory Staff refused to produce certain documents entirely and certain parts of other documents and tendered them [n camera to the Board for a determination upon assertions of privilege; the matter is pending; and (c) Applicant attempted to answer a substantial portion of Intervenor's interrogatories, but have impressed Intervenors more with an ab$lity to produce large amounts of paper rather than substantive and direct answers to Intervenors' inquiries. Intervenors have challenged the completeness and directness of Applicant's answers.
It is in this context that Intervenors seek information from and answers to questions directed.to the Atomic Energy Commission (AEC) and the Advisory Committee on Reactor Safe-guards (ACRS) . Accordingly, the suggestion that Intervenors
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have been provided with the ultimate in information concerning the facts underlying the proposed Midland Units and its rami-ficationc from a safety and radiological standpoint is not only incorrect, it is downright misleading.
Below, in this memorandum, is contained our specific response to the legal argument set forth by Applicant and the Regulatory Staff in their respective memoranda. Both of those memoranda have attempted to focus upon issues which are not really before the Board. Thus, neither Applicant nor Staff have analyzed the authority pursuant to which Intervenors have formulated and filed their interrogatories.
The relevant portions of the controlling Rules of Practice are as follows:
(ii) In addition, written interrogatories may be submitted to and served on the Secretary of the Commission. They will be answered and signed by AEC personnel with knowledge of the facts designated by the General Manager or the Director of Regulation, as appropriate. The party proposing the interrogatories shall file a copy of the proposed interrogatories showing each interrogatory separately and consecutively numbered. Within seven (7) days after filing, any other party may serve cross-interrogatories.
Objections to interrogatories or cross-interrogatories shall be made promptly'and will be ruled upon by the presiding officer. Objections to form shall be deemed waived. The interrogatories, cross-interrogatories, and answers shall be re-corded and signed. The answers will be served on parties by to the the Secretary proceeding.of the Commission 10 C.F.R. 62 720up(h)(2)(ii);
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(a) On motion and for Good cause shown, the Commission may order that the testimony of any party or other person be taken by deposition on oral examination or written interroCatories.
The attendance of uitnesses may be compelled by subpoena. 10 C.F.R. 62.740(a).
Eco also proposed revision to Appendix A to Part 2 of the Rules of Practice 35 F.R. 8379 et. seq., par. VI (c) Discovery, recause the Reculatory Staff has not chosen to object 2/
specificall'j to the interrocatories addressed to it, the only issue before the Board is whether the AEC and ACRS must answer any interrogatories. Thus, if the Board sustains the Staff's
" General Objection," the Board would in effect be repealing those portions of the Rules of Practice which provide for the scrying of interrogatories upon the AEC. Indeed, Applicant's submission offers no set of circumstances where interrogatories, permitted by the Rules of Practice, would in Applicant's view be appropriate in an ASL3 hearing. .
II.
The Stage of the Proceedings It is critically important to point out that the Board is not being called upon to decide whether Intervenors are entitled to information not available in the record of
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a proceeding after there has been a quasi-judicial or 2/
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Below we respond to those few specific objections which have been made by the Regulatory Staff.
adjudicatory type hearing. The Director of Regulation (and therefore the Regulatory Staff), the ACRS and the AEC are not empowered initially to make findings necessary for the issuance of a cor.struction permit. Accordingly, by definition, there is no attempt to probe the mental processes behind an adjudicatory decision aecause no decision has been made.
Tne Scard is holding a hearing because the Atomic Energy Act requires that a hearing be held at the construction permit level. The hearing is contested because the Intervenors have decided to oppose the construction of a nuclear plant in the heart of a populated area. The Board is directed by the Rules of Practice to hear and evaluate all the evidence, at the end of which, by its initial decision, it authorizes or refuses to authorize the Director of Regulation to i~ssue a construction -
permit.
It is the initial decision which is the first decision i
having any quasi-judicial or adjudicatory character.
At this stage of the proceedings the Administrative Agency, itself, has made no findings, has entered no orders and has not taken any adjudicatory or judicial type action.
The only action of the AEC has been to issue a Notice of. Hear-ing, and Intervenors are not here challenging that action.
At this stage of the proceedings the ACRS has done nothing but issue its statutory report which, although required O
by the Atomic Energy Act, is not the result of an adjudicatory or judicial type action.
It is, of course, true that the PSAR has undergone revier by the Regulatory Staff and that as a result thereof 3/
the Regulatory Staff prepared its safety evaluation 7 However, the safety evaluation is not a finding,_an order, or even an evaluation iccued in connection with an adjudicatory or judi-cial type proceeding. The safety evaluation is merely a summary of the position which the Regulatory Staff will take at a hearing, if one is held. It is potential cavidence to be used at an adjudicatory or quasi-judicial hearing; it is not and cannot constitute findings or conclusion's contemplated to be made at the conclusion of an adjudicatory or quasi-judicial proceeding.
3/ No statute or regulation reouires a safety evaluation to be pranared, except insofar as 52.102 contemplates such a report Tr.us, the Staff safety evaluation is no more than a prelu .> testimony in the nature of an answer to the Notice of Hearii.d or a Petition to Intervene, i.e., like a pleading.
Properly viewed in this light, no one w3uTd sug6est that state-i.e., statements subject to monts proof, in a pleading are typeto not subject document, discovery7 ~ Compare interrogatories filed herein directed to the PSAR and the Petitions to Intervene, all of which, like the Staff evaluation,.are pleading or position documents by parties to the-proceeding.
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Intervenors at this stage of the proceedings are merely seeking factual information in support of their case and in opposition to the proposed nuclear units. The ACRS
.and the Regulatory Staff have, by virtue of an administrative reviet.' uhich has not and cannot result in any decision,-4/
become intimately familiar with the proposed nuclear units and their ranifications. The Intervenors seek information, unavail-abic clsewhere, to enable them properly to prepare their case
. I and avoid lengthy discovery-type cross-examination at the hearing. Indeed, the Board, without Intervenors' serious assistance in this regard, would be less equipped to accomplish the orderly prehearing process contemplated by 10 C.F.R. 52.752.
III.
i i Discussion and Argument i
I Even though Intervenors believe that the Rules of Practice authorizing the serving and requiring the answering of interrogatories addressed to the AEC are dispositive of the issue before the Board, Intervenors now proceed to demonstrate that the legal arguments, primarily set forth by Applicant, have no application to the issue before this Board at this stage of the proceeding.
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Of course, the ACRS and Staff review may affect the Board's decision, but no more than any evidence properly tendered and received.
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A. Summary of Position of the Regulatory Staff and the Applicant.
- 1. Staff Position. The Staff's memorandum in opposi-tion to the interrogatories directed to the AEC is divided into two parts. The second part of the Staff's memorandum is a listing of specific objections to certain nunhered interrogatories.
Below in Part IV we respond to these specific objections.
The remainder of the Staff's memorandum is devoted to the Staff's so-called " general objection." The Staff argues that to answer the interrogatories vould impose an unreasonable Lurden because the Staff has a manpower shortage, is involved in other hearings, and finally because there is a need for -
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electricity.~ Without responding further, we would point out that the record is devoid of any factual basis for these asser-
! tions, and surely the Board cannot properly consider ruling in favor of the Staff wit?out such a record. Intervenors may not I
be deprived of substantive rights upon the basis of assertion of counsel.
The Staff's general objection is devoted to the proposition that although the Regulatory Staff must respond to
, some interrogatories, the ones filed by Intervenors are too 5/
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This unsupported assertion does not even point out where the need for electricity is critical. Sin.ce this is a construction stage hearing, the 150-200 man days the Staff states it would need to formulate answers, even if true, are of no moment jn the cor. text of the some three to five years it no :1;: take to build the proposed Units if permission vere secured. -
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broad and too many in number. This argument does not assist the Board nor the Intervenors in understanding the objection or indeed what number of interrogatories the Staff would be willing to answer. Certainly the number or scope of interrogatories could not, without more, be dispositive upon the issue of the a
informati?n souCht. J. Schoeneman, Inc. v. Brauer, 1 F.R.D.
292 (W.D. Mo. 1940); and Hoffban v. Wilson Line, Inc., 7 F.R.D.
73 (E. Pa. 1946). Moreover, how can the Board sua sponte resolve fairly the question of the scope of interrogatories without the Staff taking a position and without permitting the Intervenors an opportunity to respond thereto. -
Finally, the Staff argues that the AEC should not be required to answer the interrogatories, inasmuch as the Inter-venors already have cerio.in other information including the PSAR and the Staff saf ty evaluation. This in indeed a curious objection, since a major portion of the interrogatories is directed to ascertaining information underlying the Staff's review and analysis. Additionally, since the Rules and Practice contemplate both a safety evaluation and interrogatories, one cannot be used to foreclose the other.
- 2. Applicant's Position. First of all, the Applicant argues that the doctrine of Un' ited States v. Morgan forecloses Intervenors from asking any interrogatories of the AEC and the ACRS. The Applicant, in its Morgan argument, pcrtrays the ACRS I
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report and the Staff evaluation as tantamount to administrative findings and then asserts that the Intervenors are attempting to probe the mental processes of the decision-making process.
Applicant neatly avoids telling us what decision we are probing or indeed what decision was made!
In the second portion of its memorandum, the Applicant backtracks and argues that the ACRS report and the Safety Evalua-tion are urimportant aspects of the hearing,1,.e., not adminis-trative fitdings, inasmuch as the Applicant has the burden of proof. Accordincly, Applicant argues that it'is not necessary to require answers to interrogatories directed to the ACRS and
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the AEC, since the construction permit will issue or not de-pending solely upon the position of the Applicant. The review by the Regulatory Staff, a review of some three y/6 ears, Appli-cant asserts is irrelevant to these proceedings.-
l The last portion of Applicant's brief is devoted to arguing that Intervenors have made no showing upon an inter-rogatory by interrogatory basis that good cause exists to require
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Applicant does not explain the inconsistency between the first part of its argument where it argues that the ACRS report and the safety evaluation are, in a sense, adjudicatory or quasi-judicial findings, and the position taken in the second part of its argument that the Staff review is unnecessary to the hearing and indeed is irrelevant. We also note in passing that the Staff has taken the position that its role is minimal and that the safety evaluation is of little importance to the hearing. Of course, the Staff aids that it intends to offer into evidence the results of its evaluation, notuithstanding its apparent lack of importance.
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the AEC and ACRS to respond to them. Aside from the fact that Applicant's good cause argument is inconsistent with its position taken in the first two portions of its argument, the question of " good cause", if it is an issue, is premature.
Intervenors concede that upon proper objection and hearing, the Board may very well find that a particular interrogatory should not be answered because information is readily available to the
'Intervenors and_ the AEC or ACRS cannot easily respond or because it sechs information which is irrelevant and would not lead to the discovery of relevant information; however, such a decision cannot be made before the issue is po, sed by an objection and a response.
Certainly the Rules of Practice do not contemplabe and the Board has not required Intervenors to support their interrogatories upon a question by question basis prior to the AEC and ACRS having taken a position. Indeed it is not even cicar whether the Staff has argued that the interrogatories seek irrelevant information. See Staff Mem, pp. 4 and 9 and
- p. 4 n. 4 Intervenors are appreciative of the long series of convoluted objections injected by Applicant on behalf of the AEC and ACRS; but the question of whether the AEC and ACRS must respond to a specific interrogatory in terms of good cause cannot be reached until these parties have taken a
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c position on each interrogatory. It may very well be that the AEC and ACRS do not a6ree with the objections posed by the Applicant to a specific interrogatory. And-for all we know that is the case, since the Staff's memorandum, filed subsequent to the Applicant's memorandum, did not adopt the objections gratuitously pressed by Applicant.
Moreover, the resolution of the good cause issue must include hearing all parties, and Intervenors having already submitted interrogatories should not be required to defend them in a vacuum.
Finally, to set to rest once and for-all the question of good cause, as ucll as the assertion of burden and unreason-ableness, we refer the Board to Moore's Federal Practice Treatise, a leading commentary on the Federal Rules of Civil Procedure after which Rules the AEC Rules of Practice are patterned. Moore in discussing the law on general objections to interrogatories, concludes that general objections may not form the basis for disregarding interrogatories:
". . . General objections, such as the objec-tion that the interrogatories will require the party to conduct-research and compile data, or that they are unreasonably burden-some, oppressive, or vexatious, or that they seek information that is as easily available to the interrogating as to the interrogated party, or that they would cause annoyance, expense, and oppression to the
- 7. We note that the ACRS has made no response whatsoever to the Interrogatories.
, m o objecting party without serving any purpose relevant to the action, or that they are duplicative of material already discovered through depositions, or that they are irrelevant and immaterial, or that they call for ooinions and. conclusions, are insufficient." 4 Moore's Federal Practice
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B. The Doctri".e of United States v. Morgan Is Inaonlicable to the inst:.nt CEf ections.
The doctrine first announced in Morgan v. United States, 298 U.S. 468 (1935), and later affirmed in the fourth of a series of cases in United States v. Morgan, 313 U.S.
409.(1940), is a doctrine of sound judicial administration
, which is not intended to foreclose discovery in a contested administrative agency proceeding.
An analysis of the Morgan. cases, as well as all of its progeny cited at length by Applicant, demonstrate the Morgan doctrine is inapplicable to the instant issue, i..e., .
questions of discovery whi.ch arise prior to an administrative decision.
The Applicant admits thht the Atomic Energy Commission has made no decision as to which Intervenors seek ~ discovery. '
As uc have demonstrated above, the ACRS report and the Staff safety evaluation are likewise not administrative decisions.
Thus, even if the ACRS and the Regulatory Staff could be 8/
likened to the agency itself, a conclusion which'even 8 :Teither the Regulatory Staff nor the CRS are the alter ego of the Connission either theoretically or factually.
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Applicant does not adopt (See Applicant's brief, p. I-18),
there has been no decision by either of those bodies of an adjudicatory or quasi-judicial type.
At page I-18 Applicant blandly asserts that the ACR3 and the Staff:
". . . [lilave issued their ad;fudic2to_rpfp[r,'oEee, dingfindin and, 'tWe~r'gs in anefo,r h _1h R. r,r.,', s']qp,b, ,the _s,3f,p_ty, evaluation and the A.h>. .l.?Atprfs_g,c, cuasi-judic,ini decisions alboit preliminary. Thus, the same consi-d2 rations which require the secrecy of the deliberations of quasi-judical [ sic] offi- -
cials militate in favor of protecting the secrecy of their deliberations." [ Emphasis added.]
This language from Applicant's memorandum is the crux of its Morcan argument; and it does not withstand the light of analysis.
As we have demonstrated, because the Atomic Energy Act requires a hearing at the construction stage level, it is the Board uho must make the necessary findings. And the ACRS report and the Staff evaluation are no more than opinions and assertions as to relevant matters by parties to t!.e proceeding.
No valid policy consideraticns adhere to mt.intaining secrecy surrounding the basis for the ACRS report and the Staff safety evaluation. Indeed, since the issue before the Board is in a large sense the safety of the proposed reactors and protection of human lives, one would think that secrecy would play no role at all in the hearings before the Board. More-over, to the extent that the ACRS and the Regulatory Staff
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need to protect certain information for various valid reasons of policy, ample protection is afforded them by the protective provisions of Freedom of Information Act (5 U.S.C. 5552 (1971)),
and the A30 Rules of Practice regarding privileged information.
Throughout this section of the brief we have not made any distinction between interrogatories addressed to the Regulatory Staff and the ACES because we do not believe there is a distinction. The Board properly permitted Intervenors to file interrogatories against both parties, and neither has any absolute right to ignore interrogatories. Although the Atomic Energy Act requires the ACRS to submit a report to the AEC concerning its evaluation of a pr'oposed plant, as has been demonstrated, the ACRS report is neither an administrative finding nor a decision made in an adjudicatont type proceeding.
It is merely additional evidence which is critical to the safety aspects of the proposed nuclear plant, and Intervenors l
1 are entitled to direct questions to persons or parties possessing l relevant information, 2/ 9 Because of the total inapplicability of the Morgan )
1 doctrine to the instant issue, we see no nee ~d in distinguishing j each of the cases cited by Applicant in support of the Morgan doctrine. Suffice it to say that each case cited by Applicant involves a si.tuation where a party sought to discover the underlying basis for a decision made in an adju'dicatory or quasi-judicia l proceeding, and no case involved the question 9 :'r.hler v. Penn R. Co., 8 F. R. Serv. 1st, See c.p.,
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of discovery in a contested agency proceeding prior to such a decision.
Moreover, the ACRS report and the Staff safety evaluation cannot be vieued as agency thought processes in support of an adninistrative decision later to be made. The
, ACRS report is prepared for the Commission who has made no decision and the Staff safety evaluation is prepared under the auspices of the Director of Regulation who has no authority thatsoever to enter findings in a construction permit hearing.
Ucither the ACRS report nor the Staff safety evaluation were prepared for the Board in aid of its decision-making process and even Applicant admits this by arguing that the Ebard must make a review de novo and:
". . . is not merely reviewing findings made by the staff or ACRS." App. Mem.
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We would refer the Board to the first Morgan case, 298 U.S. at p. 480, and the fourth Morgan case, 313 U.S. at p. 422 The language of the Supreme Court makes it unmistakably clear that the Morcan doctrine was not intended to be applicable to a circumstance prior to there having been a decision by an administrativeagencyinanad3udicatoryorquasi-judicial type proceeding. See also the language of the court in Braniff Airways, Inc. v. C.A.B., 379 F.2d 433, 460 (D.C. Cir. 1967).
Finally, the Board should not be misle'd by Applicant's attempt to give .the ACRS report and the safety evaluation the
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interrogatories as seeking the underlying basis for conclusions of the Otaff and ACRS. Because the ACRS report and the Staff safety evaluation took the form of a statement of conclusions, Intervenors necessarily phrased their questions in terms of the documents themselves. However, the form of an interrogatory does not control the character or substance of the document to which it is directed. Accordingly, because Intervenors asked for the underlyin,q basis for the conclusions of the ACRS report and the Staff evaluation, the ACRS report and the Staff evalua-tion do not automatically become administrative findings made in an adjudicatory or quasi-judicial type proceeding.
Intervenors could just as easily have altered the form of their interrogatories to have avoided the erroneous assertion by Applicant that the form of inte rogatories somehow makes a party's position paper an administrative finding.
Moreover, the AEC Rules of Practice provide that "[o]bjections to form shall be deemed waived" and thus of no moment. 10 C.F.R.
SS2.720(h)(2)(ii) and 2.740(f) .
C. The ACRS Report and the Staff Safety Evaluation Are Important and Relevant to the Issues in thic Proceeding.
- 1. The adeauncy of the ACRS report and the Staff evalua-tion are relevana_to the uroceeding.
Sections 29 and 182(b) of the Atomic Energy Act, i respectively, require the ACRS to "make reports . . . [and]
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O advise the Commission with regard to the awards of proposed reactor facilities and the adequacy of the prcposed reactor safety standards" and ". . . submit a report thereon which shall be made part of the record of the application and avail-able to the public elcept to the extent that security classi-fication prevents disclosure." ,
The ACRS is not a mere functionary in the develop-ment of the eviden;e relating to the construction or not of a nuclear reactor. As a practical matter, no utility would propose an investment of millions of dollars without being assured of the absence of unfavorable ACRS testimony whether by way of a response or otherwise in an ASLB hearing. Similarly, the purpose of a Staff administrative review leading to a safety evaluation enables the utility to commence an ASLB heari'ng knowing that it has so constructed its application to satisfy an important party to the proceeding, i.e., the Staff, and that the utility can count upon the Staff to offer no objection 10/
to the Applicant's submission.
Intervenors do not have access to the financial records of the Atomic Energy Commission, but based upon some of the documents they have seen as well as the assertion by 10/
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The prehearing review process, although not determin-ntive of anything, in a real sense provides an opportunity for two " adverse" parties to come to terms prior to the hearing.
Once Intervonors appear on the scene, it is unrcalistic to sug-gest that the process has not taken place or that it is unimportant.
, n Regulatory Staff counsel that review of the Midland PSAR took some 700 man days, it would be safe to assume that the review of a reactor prior to any hearing involves spending hundreds of thousands of dollars of public funds.
Applicant tells us directly and the Regulatory Staff e
asserts indirectly that in a contested proceeding all of the effort is irrelevant to issues of safety and that Intervenors have no business in a public hearing " poking around the ACO."
In order to pose the issue more directly, assume arguendo that it has been demonstrated at a particular ASLB hearin6 that the ACRS and the Staff have not considered signi-ficant and critical matters-concerning the safety of the pro-posed reactor. Would the ASLB, which has neither the time nor the inclination critically to review a PSAS feel safe in ar-riving at an affirmative decision with respect to a construction permit or an operating license? Would the testimony of the Staff have significant effect upon the Board when such circum-stances have oeen disclosed? We think not.
Those portions of the Regulations cited by Applicant in Section II of its memorandum adequately demonstrate that the Atomic Energy Commission requires a Board and that a Board of necessity defers to the opinions of the Regulatory Staff and the ACRS. Accordingly, fairness requires'that the
- basis for such opinions be subject to discovery.
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. Applicant tu.ls us that whereas the adeshacy of a Staff "eview and the ACRS review is important in an uncon-tested proceeding, it is of no importance in a contested proceeding.
The logic of this conclusion escapes us.
In en uncontested proceeding presumably the Board relict heavil; upon the ACRS and the Regulatory Staff because no one in an adversary position is participating to bring to the attention of the ASLB Gaps in Applicant's application and its reasoning. In a contested proceeding presumably Inter-venors, adversary in nature, would be able to probe the application for its weaknesses. However, Applicant tells us that in the situation where the Board is required to make a jud 6-ment upon conflicting evidence, the ACRS and the Regulatory Staff and their expertise play a limited role.
The thrust: of the question is sufficient to suggest its answer.
Moreover, because the ITotice of Hearing does not state that the " adequacy" of the Staff evaluation and the ACRS review is cHrecthr inissue, it is illogical to suggest that the evidence they possess is unimportant to this proceeding. After all, the ultimate issues with which this Board must deal are issues of safety; and presumably the business of the ACRS and the Regulatory Staff is the assurance of safety.
The interjection of an adversary petition to inter-vene cannot deprive the ACRS report and the Staff evaluation from having importance to the hearing. Applicant sorely
n r underestimates the process of administ ative regulation con-templated by the Atomic Energy Act and AEC regulations. The role contemplated for an Intervenor, with limited resources, a role which comes into existence shortly before the hearing, cannot be meaningful unless the Intervenor is permitted to test the reliability of the ' ACRS review and the Staff safety evaluation.
He vill not duell any further upon the issue of the relevance of the adequacy of the ACRS report and the Staff safety evaluation to this proceeding.
At the prehearing conference in Uew York on May 1 we understood the Board to rule that the ACES report and the Staff safety evaluation and their adequacy is relevant to the proceeding. Ue trust any further assertions to the contrary l
I are now foreclosed.
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- 2. Even if the adecuacy of the ACRS renort and the safety evaluction were not in issue to these uroceedings, the
, Board must still recuire answers to Intervenors' interrogatories.
The Applicant and the Regulatory Staff have attempted to portray the adequacy of the ACRS review and the Staff ,
evaluation.as irrelevant to this proceeding because the adequacy of the review in and of itself is not one of the issues con-tained within the Notice of Hearing.
Assuming arguendo that Applicant's analysis is cor-rect, the argument still does not stand in the way of the Board requiring answers to Inter.venors' interrogatories.
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L'nen Intervenors forrilated their interrogatories, 1
they were, of course, interested in how thoroughgoing was the prehearing review by the administrative agency' entrusted with -
the obligation to protect against undue risks to the public.
However, Intervenors had an additional reason for securing the information underlying the basis for the ACRS report and the Staff safety evaluation.
If, for example, discovery against the ACRS and the Re3ulatory Staff demonstrated a faulty analysis in their con-clusions, it would serve touard the public interest and the preparation of Intervenors' case and the hearing in three ways.
First of all, it would question the conclusions of the ACRS and the Regulatory Staff in such a manner so that the report and evaluation which is to be submitted into evi-dence cnd upon !hich the Board may rely will be stripped of having any probitive value as an expert opinion.
Secondly, the information secured by Intervenors would be of significant importance in analyzing the PSAR and the Applicant's proof and in providing for the hearing the disadvantages or 1.nadequacies of a proposed system or design in connection with the proposed nuclear units. Since the PSAR is self-serving and does not discuss alternatives, the Intervenors must be permitted to go beyond Applicant's pro-posed case.
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e Thirdly, Appendix A authorizes the Board to rely upon the conclusions of the ACRS and the Regulatory Staff to the extent that an issue is uncontested. 10 C.F.R. Part 2, App. A, sec. VI(d). Uithout discovery how can Intervenors, the only party contesting, determine the issues (supported by the ACKS and the Stafd uith which Intervenors will disagree.
And uithout a dater.21 nation of what issues are contested, how can an ASL3 hope to hold a hearing which has order, propriety and direction.
Insofar as Intervancrs are concerned, the ACES and the Regulatory Staff are in a real sense occurrence witnesses to factual information relevant f o this proceeding. The in-terrogatories addressed to them are directed to seeking this information in an effort to assist Intervenors and the Board in the hearing process. Whether or not the adequacy of the review, as an end in itself, is important, Intervenors are entitled in discovery to factual information in the possession of two parties who are intimately familiar with the proposed reactor.
To suggest that Intervenors.may not have this infor-mation because it is duplicative of information which can be sought out from the Applicant by Intervenors is to suggest that in the trial of a contested matter a party is entitled ,
to cross-examine only one witness. Moreover, the issue of duplication is peculiarly a factual issue, and all the Board has before it are assertions of counsel, not an analysis of the interrogatories demonstrating duplication or redundancy.
g I VI.
Specific Objections by the Regulatory Staff In this section of our memorandum we address our-selves to those specific objections made by the Regulatory Staff in the last part of its memorandum.
Interre atories 1-212 The Regulatory Staff objects to these interrogatories as being unreasonably duplicative. The Regulatory Staff is incorrect. In the first 232 interrogatories addressed to the Atomic Energy Commission and ACRS, Intervenors are seeking to establish the basis for evidentiary statements which will be offered at the hearing. In the body of the first 232 interro-Catories Intervenors pointed out that the Regulatory Staff if they did net consider the information, could state the basis for their faJ.,1ure to so consider. This process is impor-tant and relevant in testing the testimony of the Regulatory Staff. As has been demonstrated above (supra, pp. 14-15),
objections to interrogatories as being duplicative of interro-gatories asked of another party or even that the interrogating party possesses the information requested are not well founded.
See e.g., Brown v._ Dunbar & Sullivan Dredging Co., 8 F.R.D. 107 (W.D. N.Y.1948); Bowles v. Safeway Stares, 4 F.R.D. 469 (W.D.
Mo. 1945). A party is entitled to ask the same set of interrogatories of two different parties. It would be significant
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e to this hearing, for example, if the Applicant and the Staff 12/
answer t Given interrogatory in a different way. Finally, in its objection, the Staff has offered "to revieu and supple-ment, if appropriate, the answers submitted by the Applicant".
Accordingly, since the Regulatory Staff has not made an objec-tion stating it will not answer the interrogatories, that issue is not before the Board, and ue believe the best course of action for the Board is not to rule on the first 232 interro-gatories, until such time as the Staff has complied with its offer to review and supplement the answers submitted by the Applicant. It may be that,thereafter, there will not be an issue as to these interrogatories between Intervenors and the Staff.
Interr_ocatory 233.
We do not believe that this interrogatory relates to an incredible event. The interrogatory is directed to a publication of the Atomic Energy Commission, and the interro-gatory calls for information which is of relevance to this proceeding. One of the issues before the Board is the ques-tion of undue risk. Intervenors are entitled to demonstrate, and therefore it is a proper inquiry of discovery, that con-ceivable risks in terms of danger sufficiently outweigh bene-fits to be derived by the construction of the proposed units in Midland, Michigan. Additionally, Interrogatory 233 asks the Regulatory Staff to compute the WASH 740 accident conse-quences if the reactom vere underground. Since the question
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'be oro the Board is ' duo risk, it is relevant ' discuss the question of whether the risks would be more or less if addi-tional safeguards were provided, such as, for example, placing the proposed units underground. We believe the objection of the Regulatory Staff should be overruled for the above rea-sons and for the additional reason that the Regulatory Staff has not demonstrated that a UASH 740 accident is an incredible event.
.In t errgator_i,e s_ 2_33 _2.3_3 In these interrogatories Intervenors have attempted to discover information concernin6 names of potential wit-nesses and information regarding meetings between cuch per-sons. In addition, these interrogatories seek the names of outside consulting firms who may have information concerning the proposed reactors and, finally, ask for the names of in-dividuals who performed certain evaluations. We cannot see how these interrogatories, attempting to seek information in preparation for the hearing, are in violation of the provi-sions of 10 C.F.R. $2.744. However, .:Lf the Regulatory Staff is serious in that objection, it appears that the most expeditious way for it to respond would be to make the information available to the Board for an in, camera inspection in accordance with the provisions of $2 744. If the Board sustains the objection to these interrogatories, Intervenors should like an opportunity l to make an appropriate motion for production of . documents.
Interrogatory 239 The Regulatory Staff argues that the interrogatory calls for irrelevant isformation. Intervenors do not agree
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and they point out that the interrogatory is directed to ascertain information concerning site suitability and infor-mation concerning tihat design considerations were considered by the Regulatory Staff. Moreover, the information questioned
.i.3_ con,ta,1,ne,d, in _t,h,e,_S,t,a,f_f_, safety evaluation which document shall be subnitted into evidence. If Intervenors' interroga-tory directed to a portion of the Staff's safety evaluation ,
is objected to as irrelevant, then the Staff should be required to exclude from its safety evaluation that portion claimed ir-relevant or explain why it was included.
Interrogatory 243
- .~e believe that Interrogatory 243 may bear upon violations of the ex parte rule of the AEC Rules of Practice.
The interrogatory also seeks information concerning participa-tion of Intervenor Midland Huclear Pouer Committee which we believe vill lead to relevant information.
Interrogatory 279 The Regulatory Staff objects because the interroga-tory seeks information not included within the Applicant's design. The thrust of the issues of the Notice of Hearing go to the question of safety and to the question of keeping radioactive releases as low as practicable. Accordingly, if it can be demonstrated to the Board that the Applicant's radioactive release system is not as low as practicable, we would think the Board would req,uire a different system.
AccordinGly, the information asked for is relevant informa-tion, albeit of a comparative variety.
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,, . ~, e In,terrocatory 291 Although the Regulatory Staff may be correct in that there are separate provisions for licenses' and permits for transportation and off-site disposition of solid wastes, this interrogatory is merely seeking.information as to those methods and procedures in an effort to develop information which vould aid and assist in an analysis of the manner of storage of solid wastes at the proposed liidland Units' site.
Thus, the manner in which a licensee is authorized to trans-port solid wastes and the route he might take bears upon the type and character of on-site collection and storage. An objection to this interrogatory should not be sustained. The in-terrogatory seeks information which will lead to relevant information.
Interrogatory 299(b)
Interrogatory 299(b) is not unduly vague and does not aM the Regulatory Staff "what it would like" . Interroga-tory 299(b) seeks information from the Regulatory Staff as to its experience with Applicant, Babcock & Wilcox and Bechtel Corporation in an effort to probe the technical qualifications of those parties concerning the construction and operation of the proposed Midland Units. l Interrogatory 319(d) l This interrogatory indeed calls for inf'ormation with I
renpcet to other facilities, but is not thereby irrelevant. '
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In an ASLB hearing the Applicant, the Regulatory Staff and the Board all drau upon their experience and make comparisons uith other similar facilities. This interrogatory seeks in-formatien concernird other similar facilities uhere problems, identified by the ACRS for the proposed Midland Units may also have arinen; and Intervenors and the public interest are entitled to find out if those problems were ever resolved and how the resolution of those problems affects the resolution of the same proble.tm for the Ib.dland Units.
.I A t._e_r_r g g t o l y_,,3,1 3 ,( f_},
This interrogatory is not argumentative but merely asks a question directed to whether safety problems have not been resolved by the ACRS or the AEC because they have had insufficient funds. It is the failure to resolve problems which is the issue here and it is that information which this interrogatory seeks.
Interrogatories 323-324 -
See our answer to objection 279. Additionally, we do not believe the Board should treat seriously an objection by the Regulatory Staff that an interrogatory calls for in-formation regarding other facilities when the PSAR and the safety evaluation are replete with supporting references to 1 I
other facilities. Indeed even the Chairman has remarked in '
one of the Board's Orders that the proposed units are no' the l
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first ones ever to b'e built. Ccmparative analysis is relevant and important, and the Atomic Safety and Licensing Appeal Board has so held. Thus, when the question of other of information and documents co:cerning other facilities arose in the Monti-collo hearings, the Appeal Baird said:
". . . the experience of other facilities which are ccmparable to the Monticello facility is relevant. . . . Such com-parisons are commonly found in an appli-cant's Final Safety Analysis Report and in the staff's Safety Evaluation for a facility."
In the Matter of Northern States Pouer Company (Monticello nuclear Generating Plant, Unit 1) Dkt. No. 50-263, August 20, 1970 at page 17.
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Interrogat_ory 326 Interrogatory 326 does not call for speculation but merely calls for the plans of the AEC. If there are no such contingency plans, the interrogatory can simply be answered,
""o, we have no such arrangements."
_I_U. terr _oy,at_o;qr,.,3,31
':Se Staff makes a curious objection. It says that Intervenors are not entttied to the names of the witnesses presently planned to be called by the Regulatory Staff. The Regulatory Staff should 'oe required to answer this interroga-tory, notwithstanding its list of Staff witnesses. Intervenors should be entitled to know uhich witnesses of the potential witnesses are presently planned to be called. Otherwise, Intervenors may prepare to cross-examine a potential witness who would not be a witness at the hearing, or prepare for an issue which the Staff may ignore.
Additionally, we find this objection curious in that the Regulatory Staff admits that the issues in this proceeding have not yet been framed. Yet, it is objecting ' generally" to Intervenors' interrogatories and pressing for an immediate i hearing. Does the Staff wish to go on record as demanding a hearing >before the issues are framed? See 10 C.F.R. S2.752;
,C.f. 10 C.F.R. Part 2, App. A, sec. VI(c) and (d).
.I.,n,terrogator d E .
Ue do not find that the Staff's objection to 337 is a meangingful cne. If the Staff believes that the documents ,
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called for violate an asserted privilege pursuant to Section 2.744(c), then the Staff should be required to follow the procedure therein required. Intervenors have no way of knouing which documents the Regulatory Staff deems privileged, and the Regulatory 5taff did not even list those documents which it does not deem privileged within the meaning of Sec-tion 2.477(c).
For the above reasons, the Board should overrule all speci.fic objections of the Regulatory Staff.
V. l Conclusion i i
As the Board knows and as Intervenors have announced i
in advance, a major portion of their preparation has, of nec- f essity, been directed toward the discovery of information by l
interrogatories and the production of documents. The AEC and ACRS refusal to respond to discovery has thwarted both of ,
these efforts. The Intervenors find themselves in the curious !,
position of having been given time to serve interrogatories to help frame issues and prepare the case, but having that time and effort ignored.
Intervenors are not " curious" as to why the Staff and ACRS came to a particular conclusion. We have embarked upon discovery because ne need the information peculiarly in the possession of the ASC to prepare our case; no one can dispute that the information had by the AEC is relevant to this proceeding, and indeed the Staff has never suggested
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that the information it and the ACRS have is irrelevant or that its disclosure would be contrary to the defense of the United States. Rather, the Staff has disagreed almost entirely with the position taken by Applicant.
Applicant submitted its objection to Staff interroga-tories uithout any 2oard inquiry into its standing to do so.
We are concluding the process of writing answering briefs, a tine-consuming effort, at a point when the Staff has not even taken a p- *.tdon on the interrogatories. This, we suggest, has been a wasted effort. What should have been done was to order the Staff to answer the interrogatories or set forth reasons, in an orderly, lawyerlike fashion, why the interroga-tories should not be answered.
Ue have not heretofore raised the issue of the pro-priety of the Applicant raising objections to Staff interroga-tories at all, let alone before the Staff has taken a position.
We fully believe that Applicant has no standing whatsoever to raise objection and Applicant has not offered any authority to the contrary. Applicant's argument that they will be '
directly affected because the answering of the interrogatories by the Staff will take time is specious and self-serving. It takes time for a Staff review; it takes time to resolve issues connected with petitions to intervene; it takes time to have a hearin6; and it takes time to analyze issues of safety. If the interrogatories arc required to be answered after objection i
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- y has been posed by the Staff, the question of time and the question of Applicant's investment are entirely irrelevant to this proceeding.
The Staff and ACRS must be required to respond to discovery. Uithout orderly prehearing procedures, which bring tocether the sources of information, the hearing process will be not dissimilar from the old 18th and 19th century common law actions uhere the victors were " surprise" and " sleight of hand" and not the pu'olic interest.
Respectfully submitted, SAGIIIAW VALLEY NUCLEAR STUDY GROUP CITIZENS COICIITTEE FOR THE EIIVIROHIIEIITAL PROTECTION OF MICHIGAN SIERRA CLUB UNITED AUTO WORKERS OF AMERICA TROUT UITLEIITED
, WEST MIC:IIGAN EIlVIRCITMENTAL ACTION COUNCIL, IUC.
ENVIRONMEllTAL LAW SOCIEI'Y OF THE UIIIVERSITY OF MI IIGAIT LAW S*UDENTS Dl By_ h) ht) AL}V - i Myrb 'M. Cherry, Thei '
bW Att ey May 15, 1971.
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O -^9CKET NUMBER
'*'<- <500. & UIIL, EE.60-371,690 UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the. Matter of CONSU'.!ERS POWER COMPANY Docket Nos. 50-329
. 50-330 Midland Plant Units 1 and 2 CERTIFICATE OF SERVICE I hereby certify that a copy of Intervenors' Response to Briefs of Applicant and Regulatory Staff in Support of their Objections to Intervenors' Interrogatories Directed to the Atomic Energy Commission and Advisory Committee on Reactor Safeguards was mailed, postage prepaid, on May 15, 1971, to the members of the Board, to the Secretary of the Atomic Energy Commission and to counsel for all parties of cecord i
' ~ , , LAA& ,'bM S Mfron M.' Cherry D0 F. E : E D US1EC A
$ MAY 171971
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