ML19329F707

Intervenor Motion,Responding to ASLB & Jk Restrick 710513 Telegrams,For ASLB Order Prohibiting Communication Between Acrs,Aec & Anyone Connected W/Facility W/O Prior Disclosure to All Parties.Moves for Production of Transcripts

ML19329F707
Person / Time
Site:	Midland
Issue date:	05/13/1971
From:	Cherry M MCDERMOTT, WILL & EMERY
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007100629
Download: ML19329F707 (1)

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t McD ERMOTT. WILL & EMERY III W E ST MONROC STRCCT CHICAGO, ILLINOIS 60603 J t2 = F R AN MLIN 2-20 0 0 C ABLE ADDRESS

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May 13, 1971 Arthur W. Murphy, Esq. , Chairman Atomic Safety and Licensing Board Columbia University School of Law Box 38, 435 West 116th Street New York, N. Y. 10027

Dear Chairman Murphy:

This letter is in response to your telegram of May 13, 1971, with respect to Staff interrogatories and to a telegram from John K. Restrick, counsel for Consumers Power Company, also of May 13, 1971.

Chairman Murphy's telegram: We understand the Board has directed the Staff to answer interrogatory 240 in.its entirety; 250 to the extent that information is sought as to why the calculation is not required at this time; 265 and 267(c) in their entirety; 268 to the' extent that it requests a description and reference to appropriate research and develop-ment programs; 284, 289 and 316 in their entirety.

We are in the process of making an analysis as to why the Board chose to direct the Staff to answer these ques-tions and not other interrogatories of a similar nature as to which there was also no objection. We understand the Board will not make its final decision until after receipt of our reply brief; however, it would be helpful to us at some point, no matter what the Board's decision (unless in the unlikely event the Board orders the Staff to answer all the interrogatories),

to understand why the Board selected these specific interrogatories.

We cannot understand, unless time is an overriding consideration to all issues, including an adequate exploration of the evidence and adequate prehearing discovery required by law and provided for by the Rules of Practice, why the Board only saw fit to require answers to a miniscule percentage of the interrogatories addressed to the Staff.

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Arthur W. Murphy, Esq.

May 14, 1971 page two John K. Restrick's telegram: Mr. Restrick's telegram indicates that-Consumers Power supports our motion for the production of documents in connection with the emergency core cooling system tests'at the Idaho Reactor Test Facility.

As the Board will recall, 'a formal motion for the production of these dccuments was made by letter of May 11, 1971.

We wish to point out to the Board that by our. motion we are requiring production of all of the documents which relate to the development of the test, the running of the test, the l results of the test and the evaluation insofar as it affects the Midland Units. We are unable to be more specific because

! -the Atomic Energy Commission has not seen fit to make public announcements prior and subsequent to the tests. Although our

! own research indicates that the test may be one of the 900 L series of the ECCS project tests and may also be related to j tests 831 and 834 of the 800 series test, we c.annot without further interrogation of the Atomic Energy Commission be more specific. 'Accordingly, we trust that in the resolution of this m'otion the Board will not only require the production of docu-ments immediately but will also require the Regulatory Staff to set forth by affidavit a specific listing of all of the documents as encompass *ed by our discription herein and a state-ment why certain documents are not produced or why portions are  !

l deleted if either of those instances occur.  ;

i After this information is secured, we would hope the Board will direct itself (or we shall by motion) to other 1 sources of information which are pertinent to the ECCS question. 1 i Thus, information compiled by Applicant, B & W, Bechtel and other vendors of like ECCS systems should be produced as soon as possible. We trust that other parties to this proceeding will cooperate in this effort.in a manner similar to Applicant's May 13 telegram.

l l This morning when I received Mr. Restrick's telegram, l_

I called him and asked him what he meant by the sentence:

If issue-develops with regard to effectiveness of emergency core cooling systems for Midland Units, Applicant will be prepared to introduce i evidence which will demonstrate adequacy and l effectiveness of these systems.

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Arthur W. Murphy, Esq.

May 14, 1971 page three The Board should know that issue has already developed with respect to the effectiveness of the Midland ECOS. I asked Mr. Restr.'.ck if his sentence meant that Consumers was with-holding information on the ECCS, thereby being in violation of complete and frank answers to our. interrogatories, as well

-as in violation of the Rules governing a description of that system in the PSAR.

Mr. Restrick said that Consumers had no further information but that Babcock & Wilcox was presently meeting with the ACRS to discuss the design of the ECCS system proposed to be installed at Midland. Mr. Restrick was careful to point out that the ACRS and B & W were discussing another plant but indicated that the ECCS system on "the other plant" was iden-tical to the one proposed at Midland. Accordingly, there is no question but that the conversations and their results be-tween B & W and the ACRS are intended to apply to and will eventually be used in the Midland Units' hearing.

Mr. Chairman, this is a contested case, and we will not p_ermit communications with respect to the isauen M he haard between_the vendor of the Apolicant_andZthe..At_omic_ Energy _Com-mission without our having knowle.dge_.and indeed-without a representative omte~rve~n6i;5 being present at any meetings.

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~~~Accordingly, by this letter we make the further motion e ,~*;;c -pursuant to'thesRules of Prnn+4cm th2t the Board Order that no further communications between the ACRS, the AEC &nd anyone connected with the Midland Plant be held without full and com-plete disclosure to all parties. We further move the Board to Order that a complete transcript of any communications thus far

-had between the AEC and the ACRS and the Applicant or B & W or Bechtel concerning or involving the Midland Units, whether in-volving the ECCS system or not, be immediately produced for inspection a..d copying by Intervenors.

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We would ask the Board to render a decision with '

respect to these motions as soon as possible.

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Finally, we have received the Board's telegram post-poning the May 17 hearing date. We trust that this means the Joard is in earnest in resolving discovery problems fairly and N

Arthur W. Murphy, Esq.

- May 14, 1971 page four 4

before the hearing in accordance with our suggested proposed order submitted with our letter of May 5, 1971.

We would add that the delay ~of the Staff in respond-ing-to our interrogatories and the failure of the Board to require the Staff to join issue by' posing specific objection have further hampered us in our preparation. Thus, for example, we cannot adequately prepare a motion for production of docu-ments, such as inspection reports of reactors similar to the proposed Midland Units,until we know which reactors (and to what extent)-were relied upon by the Staff for comparative analysis.

We again urge the Board to recognize that an ill-prepared hearing would be meaningless for all and uould result in denials of due process. See 10 C.F.R. Part 2, App. A, sec.

VI(c).

Respectfully submitted, 1

Myron M. Cherry MMC /sm cc: Dr. David B. Hall Dr. Clark Goodman Mr. Stanley T. Robinson, Jr., Sec'y All Counsel of Record e

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