ML19329F688
| ML19329F688 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 05/26/1971 |
| From: | Kartalia D US ATOMIC ENERGY COMMISSION (AEC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007100607 | |
| Download: ML19329F688 (10) | |
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f ATOMIC ENERGY COMMISSION f7-b BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos.
(Midland Plant, Units 1
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REPLY OF AEC REGULATORY STAFF TO "INTERVENORS ' RESPONSC TO BRIEFS OF APPLICANT AND REGULATORY STAFF IN SUPPORT OF THEIR OBJECTIONS TO INTERVENORS ' INTERROGATORIES DIRECTED TO THE ATOMIC ENERGY COMMISSION AND ADVISORY COMMITIEE ON REACTOR SAFEGUARDS" On March 22, 1971, intervenors Saginsw Valley Nuclear Study Group g d.
(intervenors) served 336 interrogatories on the Secretary of the Atomic Energy Commission.
In response to these interrogatories, the AEC regulatory staff (staff) on April 26, 1971, filed written objections which included a general objection to the entire set of interrogatories and several specific objections to particular interrogatories. On May 15, 1961, the intervenors served a brief designated "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 Cosmaittee on Reactor Safeguards" (intervenors '
brief) which responds to the staff's objections of April 26, 1971, and objections filed by Consumers Power Company (applicant) on April 19, 1971.
The intervenors' brief addEasses both the staff's general objection and its various specific objections.
In addition, it seeks reconsideration of the Board's ruling that the Advisory Committee on Reactor Safeguards THIS DOCUMENT CONTAINS 8007300[O[
POOR QUAUTY PAGES 1-1
s (ACRS) will not be required to respond to the intervenors' inter-rogatories (Tr.1126).
In Part I below we deal with the intervenors' arguments in opposition to the staff's general objection.
Part II deals with the intervenors' contentions in regard to the specific objections.
In Part III we ta*xe uo the question of whether the ACRS should be required to respond to the interrogatories.
I.
Intervenors' Arguments in Opposition to the Staff's General Objsetion Sustaining the staff's general objections would not, as the intervenors assert, emot:7. to repeal of 10 CFR 2.720(h)(2)(ii), the rule which per-1/
mits interrogatories to be served on the Secretary of the AEC.
The issue here is whether the rule would be abused by intervenors, not l
whether it may be used at all.
Interrogatories are widely used under the Federal Rules of Civil Procedure even though a district court will strike an entire set of interrogar.s tes uhere abuse of the applicable l
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rule is evident.
Abuse of 10 CFR 2.720(h)(2)(ii) is evident on the face of the intervenors' l
l interrogstories.
There is no merit in the intervenors' further argument T7
~ The intervenors' suggestion that 10 CFR 2.740(a) also applies is unsupportable. See subsection (j) of the same regulation and 10 CFR 2.4(p).
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See, e.g., Stephen Amusements, Inc. v. Paramount Film Distributing Corp., 4 F.R. Serv. 2d 33.353, Case 2 (S.D. N.Y. 1961); Cummings v.
Bell Telephone Co. of Pa., 272 F.Supp. 9 (E.D. Pa. 1967).
3-that the Atomic Safety and Licensing Board (Board) cannot dispose of this matter on the basis of the present record.
The Board, like a court, has considerable discretionary authority with respect to con-11 trolling the discovery process.
Furthermore, the Board is an administrative tribunal which may appropriately rely on its special expertise in evaluating the intervenors ' interrogatories.
The intervenors maintain, on the authority of a quotation from Moore's Federal Practice, that a general objection will not suffice. This quotation is inapposite. The Moore treatise says essentially no more than that a general objection is not an " objection" within the meaning of Rule 33(a) of the Federal Rules of Civil Procedure, which provides for the filing of answers and cbjections within 30 days after service of interrogatories. According to Nbore, an objection of the type made here by the staff must, in a district court be raised in a motion for a protective order under Rule 26(c):
[1]t seems clear that where the only objection to interrogatories is the cumulative burden of answering them, the interrogated party must make his motion under Rule 26(c) before the deadline for answering or object-ing.
4 Moore, Federal Practice par. 26.69, p.26-506 (2d. Ed. 1970)
The Commission's discovery rules and the corresponding provisions of l
the Federal kules, though similar in certain respects,. are not identical.
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See also Jayson v. U.S., 294 F.2d 808 (5th Cir.1961).
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s 4-In this instance, as in others, the differences between the two are such that discovery gyactice in district courts is not pertinent in resolving a discovery question before an atomic safety and licensing board.
In addition, the staff's general objection is, under the circumstances, reasonably specific. Our objection divides the total of 336 inter-rogatories into three groups.
The first group, consisting of. 232 interrogatories, is no longer at issue since the Board has stated that it will sustain the staff's objection that they are unreasonably duplicative (Tr. 1126).
The next group comprises 80 interrogatories which relate to the text of the staff's Safety Evaluation. These in:errogatories constitute the principal matter now at issue insofar as the intervenors' interrogatories to the staff are concerned.
In general, they seek detailed statements in support of conclusions expressed in the Safety Evaluation.
Since we have not taken the posi-tion that inquiry concerning conclusions in a safety evaluation is i
inappropriate per se,, we have made few specific objections with respect
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t to the second group of interrogatories. We do, however, think it patently unreasonable to subject the staf f to the burden of answering l
all or a substantial number of these interrogatories in absence of a strong showing of need by the intervenors.
The remaining 24 interrogatories are of various types. With respect to l
the interrogatories in this group we have made 15 specific objectiqns
. in addition to our general objection.
The intervenors' brief contains the additional argument that the interrogatories must. be allowed because they may lead to a showing that the staff's Safety Evaluation should be accorded no probative value. As to contested issues, however, the staff's testimony, includ-ing the Safety Evaluation, is subject to appropriate cross-examination by other parties. Thus, sustaining the staff's general objection would not preclude a challenge to the staff's conclusions insofar as they h!
relate to contested issues.
The intervenors also argue that they will be unable to specify the issues in this proceeding if their interrogatories art not answered.
The interrogatories are directed, they say, toward wiiciting factual information which is elsewhere unavailable. However, what the inter-t venors seek through their interrogatories is, for the most part, not i
facts as such but analysis.
The facts have been available to the inter-venors for several months. Presumably they have analyzed those facts.
At least, they have had ample opportunity to do so.
By order, dated May 18, 1971, the Board provided for a conference on June 7,1971, a principal purpose of which will be to ascertain the issues in this proceeding.
In our view, the intervenors should be A/
The suggestion that the intervenors would in that case resort to
" lengthy discovery-type" cross-examination should be ignored.
The l
Board is not without power to curb excessive cross-examination.
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required to serve prior to that conference, a detailed statement of 5/
ris matters which they seek to have considered at the hearing.
The intervenors should also be prepared at the conference to justify that statement. In partic.ular, the intervenors should be in a position to describe with respect to any matter included in the statement, the extent and results of their independent analysis of the pertinent facts.
II.
Intervenors' Arguments in Opposition to the Staff's Specific Objections For the most part, we see no need for comment by the staff on the arguments of the intervenors in opposition to the staff's specific obj ec tions. Accordingly, except as noted below, we would merely reiterate our specific objections.
With respect to interrogatories 1 through 233, we note in addition that the issues involved have already been decided by the Board.
Tr.1126 and Order dated May 6,1971.
We have objected specifically to interrogatories 235 and 236 and portions of 237 and 238 on the ground that they attempt to circumvent 10 CFR 2.744, the rule governing applications for production of AEU documents. We have done so because the information involved is contained in documents within the scope of the intervenors' pending motion for production of documents.
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In the Matter of Wisconsin Electric Pouer Company and Wisconsin-Michigan Power Company (Point Beach Nuclear Plant, Unit 2), Docket No. 50-301, the Commission has directed the presiding Board to obtain such a state-ment "as a first step in [the) prehearing process." Memorandum and Order dated May 6, 1971.
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, III. The Intervenors' Argument That The Advisory Committee on Reactor Safeguards Must Respond To Their Interrogatories At the conference on May 1,1971, we understood the Board to rule that the ACES would not be required to respond to the interrogatories.
(Tr. 1126) The intervenors, however, refuse to acknowledge that the matter has been resolved. Accordingly, we devote this part of our response to the ACRS question in order to assist the Board in putting the matter permanently at rest.
The ACRS is, of course, not a party to this proceeding.
Its position with respect to the proposed Midland facilities is set forth in two reports which speak for themselves.
These reports will be made part of the record of this proceeding in accordance with section 182b. of the Atomic Energy Act of 1954, as amended, and section 2.743(g) of the Commission's " Rules of Practice," 10 CFR Part 2.
As we have noted above, the facts pertinent to this proceeding are 1
available to the intervenors.
In directing interrogatories to the ACES they do not seek facts; they seek, rather, the analysis which underlies the ACES reports on the proposed Midland facilities.
In our view, the intervenors have not shown good cause for such discovery.
In any event, the information which the intervenors' seek from the ACRS must be considered as privileged because of the unique role performed l
by,the ACRS.
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-S-Prior to 1957 the AEC had within its organization a Rwactor Safeguards Committee. When the 1954 Act was being amended, Congress inserted in the indemnification amendments a new section of the Act "to formally establish a Connaittee on Reactor Safeguards...This Committee is to review license applications and to advise the Commission with respect to the hazards involved at any tacility. The main reason for making this Committee a statutory Committee was to insure that any features of new reactors would be as safe as possible. This subject was felt 6/
to be so important as to require a Committee established by statute. " ~
The Joint Cossaittee attributed the Commission's fine safety record to the "close scrutiny of AEC-built reactors and great prestige of its present Reactor Safeguards Committee. The Joint Connaittee desired this same type of scrutiny and prestige to be maintained with respect to provately built power and testing reactors." The 1957 amendment to the Act provided that the ACRS "shall submit a report thereon, which l
shall be made part of the record of the application and available to i
the public, except to the extent that security classification prevents i
U disclosure."
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l See Senate Report No. 296 ud House Report No. 435 dated May 9,1957.
U.S. Code Congressional and Administrative News, 85th Cong.,1st I
Sess., 1957, Vol. 2.
y Section 182b. of the Atomic Energy Act of 1954, as amended.
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m Historically, the deliberations of the ACRS, their working papers and any minutes of meetings have been considered privileged to encourage free and frank exchange of opinions among its members.
Public dis-closure of these deliberations and documents would tend to stifle and inhibit open, complete and candid discussions within the ACRS and thereby severely impair the usefulness of its work to the Connaission and to the public.
This in turn would be contrary to the intent of the Congress in its concept of the function of the ACRS as expressed in the legislative history of sections 29 and 182b. of the Atomic Energy Act of 1954, as amended.
It might be noted that in New York Shipbuilding Corporation v. U.S.,
Court of Claims No. 97-66, July 2,19[0, the court affirmed a decision of the Commissioner of the court denying a subpoena for letters, reports and minutes of meetings of the ACES. The AEC had claimed that these records were exempt on the basis of executive privilege. The Commissioner l
j at first granted the subpoenas without considering the question of executive privilege. The Attorney General at the request of the AEC l
appealed and the court remanded.
On remand, the Commissioner reversed himself, found that the claim of executive privilege was valid and denied i
the subpoenas.
The Court of C1sima affirmed in its July 2,1970, decision.
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) IV.
Conclusion For the reasons stated above and in our " Objections" of April 26, 1971, the staff's general and specific objections to the intervenors '
interrogatories should be sustained.
Respectfully submitted, i
David E. Kartalia Counsel for AEC Regulatory Staff Dated at Bethesda, Maryland, this 46 day of May,1971.
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