POINT 15: PROCEDURAL PROCESSES HAVE BEEN SYSTEMATICALLY ABUSED. CORRECTIVE CHANGES IN THE HEARING PROCESS ARE REQUIRED.
Health and safety hearings have lasted for more than three years, and have attracted wide attention. As well as skill, selfless dedication, and honesty, the history of the hearing will also reveal abuses, excesses, and the unprincipled pursuit of self-interest. Preservation of the integrity of the Commission’s hearing process demands that the excesses of the applicants be exposed and corrected.
RG&E s position among the applicants is that of first among equals. They have filed more testimony, submitted and responded to more interrogatories, conducted more cross-examination, taken more appeals, made more motions, and voiced more objections than all the other applicants put together. It is therefore to the conduct of RG&E that we look for an analysis of the abuses that have beset the hearing.
In its original application, RG&E required less than a page to assure the Commission that its proposed line’s electric field. would be harmless. In 1974, Marino and Becker submitted testimony tending to show that the line was hazardous. RG&E responded by hiring scientists who reached the same conclusion regarding safety reached earlier, but on colorably more credible grounds. The same pattern persisted during the next three years. Whenever new evidence was put before the Commission, RG&E hired someone from the scientific community to put the matter in issue. Thus, RG&E’s extremist position, started in 1973, has never changed.
RG&E’s framing of the issues and presentation of witnesses have been abusively self-serving and antagonistic to the search for truth. After Marino and Becker submitted pre-filed testimony in October 1974, RG&E sought the University of Rochester triad not because they possessed any special knowledge or expertise relevant to the hearing, but because they were willing, pliable, and convenient. RG&E never was the moon reflecting their witnesses’ sun. The quality and logic of their scientific arguments was so completely inferior that only lawyers could have been responsible for the positions taken by their witnesses. It was RG&E which placed the ‘Utility Operating Experience’ argument in evidence through Miller's mouth, and the ‘Effect is not a Hazard’ argument in evidence through Michaelson’s mouth. It was RG&E, and not Miller and Carstensen who accused of incompetence all 65 groups of scientific investigators around the world who reported biological effects due to ELF field exposure. Thus, RG&E’s case was designed ab initio only to implement business decisions by corporate officers, and not in any manner as an aid to the Commission in the pursuit of truth and the protection of the public welfare.
Throughout the presentation of its case, RG&E never perceived that it had a responsibility to the public at large, as well as to its stockholders. As a consequence, its case never went beyond the four corners of the testimony of staff’s witnesses, nor did it cooperate in the exchange of information. In testimony distributed in October 1974, Marino cited eight references to indicate that ELF fields caused biological effects. In December 1975, all witnesses filed simultaneously. RG&E’s witnesses regarded the eight references previously cited as the totality of the relevant literature, and their direct testimony was drafted accordingly. Marino however, cited 24 additional references which RG&E witnesses had not read prior to their testimony. RG&E demanded copies of all the reports which its experts had missed, and was so provided. In October 1976, all witnesses filed simultaneously in the rebuttal phase. RG&E’s witnesses regarded the 32 references previously cited as the totality of the relevant literature, and their rebuttal testimony was drafted accordingly. Not surprisingly, each of its witnesses reached the same conclusion as they had reached on the basis of only eight reports. Marino however, cited 20 additional reports which RG&E’s witnesses had not read prior to giving their rebuttal testimony. RG&E demanded copies of all the reports which its experts had missed, and was so provided. Prior to and subsequent to the aforesaid demands for information and reports, RG&E made still additional demands for reports, information and data, and was always provided with the material requested. When information was requested of RG&E however, it frequently refused on the grounds that it was not “readily available,” or that their experts were too busy to search their files. RG&E has refused to supply National Academy of Science reports, Electric Power Research Institute reports, and Soviet reports, all of which are in its witnesses’ possession. Thus, throughout the hearing there has been only a unilateral exchange of information, and RG&E has suppressed all adverse material within its possession or control.
RG&E has employed a steady drumfire of procedural tricks, tactics, and maneuvers, and has thereby frequently obscured the basic purpose of the hearing in a morass of legal formalisms. RG&E has maintained moot and frivolous appeals to the Commission, and has taken appeals in flagrant violation of the law of the case. Cross-examination by RG&E was characteristically churlish and puerile. RG&E routinely abused the motion to strike testimony, both by vast overuse and by predicating it on grounds that do not exist at law. RG&E engaged in incessant legal posturing, even in the face of irrefutable documentary evidence. For instance, in Exhibit P-6, RG&E’s witness Michaelson expressed opinions to the Committee on Commerce of the United States Senate concerning the safety of high voltage transmission lines which were completely at variance with the opinions he expressed in the present hearing. In a letter to the Examiners, RG&E brazenly and falsely denied that Michaelson had given the aforesaid adverse testimony to the Committee on Commerce even though it is a matter of public record, and even though Michaelson admitted that he submitted the material in testimony he gave in a California proceeding.
From the bully pulpit of its position of procedural superiority, RG&E made Marino and Becker the target of numerous abusive legal maneuvers. RG&E insisted that it had an unlimited right to cross-examine Marino. In furtherance of this position it cross-examined Marino for 13 days and Becker for 4 days. Throughout, RG&E incessantly demanded that Marino provide various reports and other information which necessitated large amounts of time and effort to accommodate, even though such material was openly available from other sources. RG&E investigated Marino's private life. RG&E falsely claimed on the basis of then secret movies that Marino and Becker’s research had been discredited. It is clear that RG&E’s tactic with regard to Marino and Becker’s testimony was not to conduct a bona fide inquiry, but to turn the thumbscrews until the time requirements of participation, and other pressures, became so painful, that Marino and Becker would be forced to withdraw.
RG&E has treated the hearing as an adversary process, and has employed to an excess the procedural devices and strategies customarily employed by private litigants in a courtroom. They have treated the health and safety hearings as an ordinary money law suit, and have recognized no responsibilities towards non-stockholders. In private litigation there are two adversaries who stand on a relatively equal footing. In the present hearing, RG&E had no true adversary. The intervenors are vastly overmatched with regard to resources and scientific expertise, and the staff routinely takes no position until after the evidence is adduced. Thus the intervenors had a position but no resources, arid the staff had resources but no position. The necessary prerequisites therefore for a true adversary relationship did net exist. Thus there was a absence of any significant checks and balances to prevent the litany of abuses of procedural processes which occurred. RG&E acted only in its own narrow corporate self-interest, to the exclusion of its societal responsibilities. Their conduct was deplorable, reprehensible, and inimical to the pursuit of truth and the orderly processes of justice. In the future hearings should be structured so that the role of the lawyer, through whom the great majority of the abuses describes herein were committed, is greatly reduced and strictly regulated, with more reliance placed on a. strong scientifically knowledgeable hearing officer.
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