ML19225A528

Consumers Power Co Supplemental Memo Clarifying Facts Prior to Hearing Scheduled to Begin on 790702.Certificate of Svc Encl

ML19225A528
Person / Time
Site:	Midland
Issue date:	06/26/1979
From:	Charnoff G, Reynolds W, Weisbard A SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
References
NUDOCS 7907190504
Download: ML19225A528 (10)

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" ; % , <3 s In the Matter of ) s , f y,1r

) Docket Nos. 50-329 Q h.f}f\)'

CONSUMERS POWER COMPANY ) 50-330

) (Remand Proceeding)

(Midland Plant, Units 1 and 2) )

SUPPLEMENTAL MEMORANDUM OF CONSUMERS POWER COMPANY

1. By Prehearing Conference Order of the Licensing Board dated May 3, 1979, responses to the March 30 Motion For Sumr ary Disposition filed by Consumers Power Company (" Consumers")

were due on June 15, 1979. The only response filed was that of the NRC Staff, taking the position that:

Since no charges are yet identified and placed in issue, it is most difficult to determine whether the facts, as identified by Consumers, are disputed, much less material.

For this reason alone, ruling on Consumers' motion at this point would be premature. [ Staff Response, p. 2.]

2. The Staff is clearly correct that no charges have been preferred against Consumers, Dow or their respective counsel with regard to their involvement and participation in the earlier suspension hearing -- as the Board itself has carefully noted (Staf f Response, p. 2). After listening to the extensive depo-sition testimony that has been given by 13 witnesses over the past six weeks, and reviewing all the documents deemed to have any relevancy to the present inquiry, it remains clear to us 353 163 7 907100 fid K

that no charges at any kind are warranted. The hearing scheduled to commence on July 2, 1979 will appropriately serve to under-score this conclusion.

3. We are submitting the present supplementary memo-randum simply to clarify a few factual points prior to commence-ment of the hearing. As matters now stand, there appears tu be general agreecant among the parties with regard to the facts c set forth in paragraphs 1-10, 13-15, 18, 20-22 and 26-27 of Consumers Power Company's Statement Of Material Facts As to Which There Is No Genuine Issue To Be Heard (" Con amers Fact Statement").

See Staff Response, p. 2.-1/

4. As to paragraph 25 of Consumers Fact Statement, we wish to bring to the attention of the Board and the parties a correction that should be made therein. That paragraph indi-cates that Board Exhibit Nos. 1 and 2 were among the discovery documents which Consumers voluntarily made available in Jackson, Michigan, for inspection and copying by the parties in advance of the hearing.-2/ Those documents -- which are the two Temple memoranda to Mr. Oreffice setting forth the Michigan Division interim position and recommending a full corporate review by the Dow USA Board -- were actually not provided to Consumers by Dow

-1/ We would note in passing that there is a typographical err r in paragraph 5 with respect to the date of Board Exhibit No. 2. That memorandum is dated September 15, 1976, not September 13, 1976.

-2/ The same statement is contained in the " Memorandum of Con umers Power Company In Support Of Motion For Summary Dispo-sition",at p. 33.

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prior' to the commencement of the hearire and thus were not among the discovery materials which Consumers produced in Jackson, Michigan. In fact, they were not even shown to Consumers or its lawyers until Dow produced the referenced Temple-to-Oreffice memoranda on the first day of the suspension hearing (November 30, 1976) at the request of counsel for the Midland Intervenors.

See Consumers Pover's Mc:morandum Regarding the Preparation of Testimony and the Presentation of Evicence dated December 30, 1976, at p. 8.

5. With this modification, the remaining portion of paragraph 25 of Consumers Fact Statement is correct. Thus, Consumers uid in fact "make available to all parties in advance of the suspension hearings all the materials in its possession which formed the basis for its prepared testimony". See Tr. 268.

Included among the produced documents were notes on the meeting among Consumers and Dow representatives held on September 13, 1976.

Those notes set forth the view at that time of Mr. Temple, as head of the Michigan Division negotiating group, to the effect that the project was no longer good for Dow's Midland plant, ex-plained that this view was "not yet Dow's official position but rather a Division recommendation", and further stated that Mr. Temple had requested Paul Oreffice to conduct "a Corporate review of the nuclear project cnd of the Division's position and how the Division's negotiating team arrived at their con-353 165

clusions".-3/ This is in substance the same information that was contained in Board Exhibit Nos. 1 and 2.

6. We note with sotse puzzlement that the NRC Staff has made reference to paragraphe 11, 12 and 19 of Consumers Fact Statement as containing information with which the Staff "does take issue" (Staff Response, p. 2), Paragraphs 11 and 12 deal only with discussions among Messrs. Miller, Rosso and Renfrow, as is clear from a reading of their affidavits. The recent deposition testimony confirms the accuracy of those para-graphs. See Rosst " . Tr. 40-42, 52-54. Whila the NRC Staff states that certain deposition testimony of Lee Nute (Nute Dep.

Tr. 132) and Jim Hanes (Hanes Dep. Tr. 15, 44, 64) put in issue the fact statements in those paragraphs, significantly neither Lee Nute nor Jim Hanes was present at the discussions in ques-tion; their deposition testimony does not even address, let alone " place in issue", the fact assertions set forth in para-graphs 11 and 12.

7. Paragraph 19 of Consumers Fact Statement states simply: "No representative of Consumers disputed the designation of Temole as the Dow witness". Not only did Lee Nute indicate his agreement with this statement during the course of his depo-sition (Nute Dep. Tr. 151-52, 157-58, 402-03, 512), but so , too.

did Milton Wessel (Wessel Dep. Tr. 111-14, 118). While Jim Hanes 3/ See Burroughs Notes on Dow-Consumers Project Meeting of September 13, 1976. Attachment "a" to Consumers Memorandum of December 30, 1976, at pp. 9-10 (Midland Intervenors Exhibit 67);

Renfrow Affidavit I, H 9.

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did not testify directly on the point, his testimony plainly in-dicates that at no time did he perceive that Consumers seriously objected to the use of Joe Temple as a witness (Hanes Dep. Tr.

47-50).

8. The Staff's ,tated reservation with respect to paragraphe 2' and 24 of Consumers Fact Statement is also curious.

It apparently rests on the assertion that "Mr. Wessel's deposi-tion, among others (unspecified), raises factual matters which may,be con', trued to dispute * * *" these paragraphs (Staff Re-sponse, p. 3; emphasis added). Without at mpting to argue the matter at this tinu, we cannot help but observe that Mr. Wensel, of all the wit.. esses deposed, was perhaps the most emphatic in insj 5 ting that the Dow position from the outset was that the Michigan Division interim position not be included in Temple's direct testimony (Fessel Dep. Tr. 128-29, 268-69, 326-27).

Neither he, Lee Nute (Nute Dep. Tr. 527), nor Joe Temple (Temple Dep. Tr. 110-12) suggested that anyone at Dow had ever advised Consumers to the contrary during the preparation of Mr. Temple's direct testimony.-4/ That is, of course, precisely the statement set forth in paragraph 23 of Consumers Fact Statement.

4/ See also Renfrow Dep. Tr. 112-16; Rosso Dep. Tr. 310-13.

There was discussion during the meeting between Consumers and Dow counsel on November 1, 1976, regarding the format of the prapared testimony to be filed by Joe Temple. At that time, Milton Wessel questioned draft testimony prepared by Dave Rosso of Consumers and forwarded to Dow on Octob7r 22, 1976, on the ground that the narrative discussion used in that draft might give the " misleading" impression that the testimony was intended to be an exhaustive account of Dow's reevaluation of its com-(Continued next page) 353 167

9. As to paragraph 24, it simply quotes the con-clusion announced by NRC Staff counsel on December 30, 1976, to the effect that the Dow corporate position was the material decision for disclosure in Temple's direct testimony. The ref-erenced NRC Staff Memorandum, at p. 6, confirms that the quo-tation is accurate.

10. To the extent that there remain the suggestion

.;f a possible disagreement as to factual mattars involved in the present inquiry, the differences of opinion or interpretation will obviously be resolved at the hearing. After the Board has had an opportunity to hear firsthand the testimony of desig-nated witnesses, we continue to believe that it will conclude 4/ (Cont'd) mitment to the Midland project. See Duran Notes of Nov. 1, 1976, at pp. 2-4; Wessel Dep. Tr. 203, 217, 294; Nute Dep. Tr. 372-73, 376. In order to remove this possible misimpression, Lee Hute had prepared an alternative draft of testimony dated October 29, 1976, as a suggested solution. This October 29 alternative draft continued to present the Dow position in the manner that had consistently been urged by Milton Wessel from the outset -- i.e.,

without reference to the Michigan Division interim position.

The Nute draft 'N 1 a!elivered to Consumers attorneys just prior to the NovemF . 1 nmeting, and it was used as the final working document from a~ te Dow and Consumers lawyers jointly prepared the Temple that was actually filed (Rosso Dep.

Tr. 287). Wessel, -

2npla all testified that they were satisfied that the ? - 1 dr. 't of the direct testimony set forth all material facts relacing to the Dow position accurately and in a straightf;rward manner; there was no suggestion, as para-graph 23 of Consumers Fact Statement asserts, that any of the Dow representatives " desired the Michigan Division interim position to be included in the direct testimony". See Wessel Dep. Tr.

204, 209, 217; Nute Dep. Tr. 333; Temple Dep. Tr. 109-12.

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that the pending motion for summary disposition is well taken and should be granted.

Dated: June 26, 1979.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: b- ndi si _

Wm. Bradford F @ ds Gerald Charnoff Alan J. heisbard 1800 M Street, N.W.

Washington, D. C. 20036 Tel.: (202) 331-4100 Counsel for Consumers Power Company 353 169

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

) Docket Nos. 50-329 CONSUMERS POWER COMPANY ) 50-330

) (Remand Proceeding)

(Midland Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing

" Supplemental Memorandum Of Consumers Power Company" were served on this 26th day of June, 1979, upon each of the persons named on the attached Service List, by hand delivering copies to those persons in the Washington, D. C. area, and by mailing copies, first class, postage prepaid, to all others.

O M k\ s h Wm. Bradfofd4Qeynold%

353 170

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board, In the Matter of )

) Docket Nos. 50-329 CONSUMERS POWER COMPANY ) 50-330

) (Remand Proceeding)

(Midland Plant, Units 1 and 2) )

SERVICE LIST Marshall E. Miller, Esq. Mr. C. R. Stephens Chairman Chief, Docketing & Service Atomic Safety and Licensing Board Section U.S. Nuclear Regulatory Commission Office of the Secretary Washington, D. C. 20555 U.S. Nuclear Regulatory Comm.

Washington, D. C. 20555 Dr. J. Venn Leeds, Jr., Esq.

Atomic Safety and Licensing Board Judd L. Bacon, Esq.

10807 Atwell Legal Department Houston, Texas 77096 Consumers Power Company 212 West Michigan Avenue Dr. Emmeth A. Luebke Jackson, Michigan 49201 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Grant J. Merritt, Esq.

Washington, D. C. 20555 Thompson, Nielsen, Klaverkamp & James Atomic Safety and Licensing 80 S. Eighth Street Board Panel Minneapolis, Minn. 55402 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Ms. Mary Sinclair 5711 Summerset Street Atomic Safety and Licensing Midland, Michigan 48640 Appeal Panel U.S. Nuclear Regulatory Commission Harold F. Reis, Esq.

Washington, D. C. 20555 Robert Lowenstein, Esq.

Lowenstein, Newman, Reis William J. Olmstead, Esq. and Axelrad Dennis C. Dambly, Esq. 1025 Connecticut Avenue Counsel for NRC Staff Washington, D. C. 20036 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 353 17I

Mr. Steve Gadler 2120 Carter Avenue St. Paul, Minnesota 55108 Michael I. Miller, Esq.

Ronald G. Zamarin, Esq.

Martha E. Gibbs, Esq.

Caryl A. Bartelman, Esq.

Isham, Lincoln & Beale One First National Plaza 42nd Floor Chicago, Illinois 60603 William C. Potter, Jr., Esq.

Fischer, Franklin, Ford, Simon & Hogg 1700 Guardian Building Detroit, Michigan 48226 Myron M. Cherry, Esq.

One IBM Plaza Suite 4501 Chicago, Illinois 60611 R. L. Davis, Esq.

J. E. Dicks, Esq.

L. F. Nute, Esq.

The Dow Chemical Company Legal Dept., 47 Bldg.

Midland, Michigan 48640 353 172