ML19256F370

Responds to 791114 Ltr to ASLB Re Lack of Support in Record for Two Comments in Util Reply Brief.Issues Before ASLB Fully Briefed.No Further Elaboration by Parties Would Serve Any Useful Purpose

ML19256F370
Person / Time
Site:	Midland
Issue date:	11/20/1979
From:	Reynolds W SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Leeds J, Luebke E, Mark Miller Atomic Safety and Licensing Board Panel
References
NUDOCS 7912190029
Download: ML19256F370 (2)

Text

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• November 20, 1979

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Marshall E. Miller, Esquire Dr. J. Venn Leeds, Jr., Esquire Chairman Atomic Safety and Licensing Board Atomic Safety and Licensing Board U. S. Nuclear Regulatory U. S. Nuclear Regulatory Commission Commission 10807 Atwell Washington, D. C. 20555 Houston, Texas 77096 Dr. Emmeth A. Luebke Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Re: In the Matter of Consumers Power Company  ! b h.

(Midland Plant, Units 1 and 2)

'NRC Docket Nos. 50-329CP and 50-330CP (Remand Proceeding)

Gentlemen:

We are in receipt of Mr. Potter's letter of November 14, in whit.h he _ takes issue with two marginal comments contained in the- Reply Brief of ; Consumers Power Company- on the asserted ground-- - ---

that- they -have "no -support in the record" .

As the' Boa $d knows full well, the evidentiary record in this proceeding is extensive. It appears that counsel for the hearing participants have some disagreement with. respect to the nature and. import of certain testimony and documentary evidence.

Obviously, such differences of opinion are for the Board to resolve, based on its own observation of the witnesses and its independent review of the record.

Regarding the two footnotes questioned by Mr. Potter, the Board's attention has been directed to the testimony and documents

-deemed to be relevant by both Consumers and Dow. We continue to J 1625 047 791219s .[4

}

Marshall E. Miller, Esq.

Dr. J. Venn Leeds, Jr., Esq.

Dr. Ermeth A. Luebke November 20, 1979 Page Two believe there is conclusive record support that the " litigation slide" was never shown to Messrs. Renfrow and Rosso. See Renfrow t

Tr. 51,961, 51,963-66; Rosso Tr. 53,392-93. While Mr. Potter points

to testimony by Lesli9 Nute indicating that Nute thought Rex Renfrow

, had seen the " litigation slide" (Nute Tr. 51,325-26, 51,382), our understanding continues to be that'/Mr. Nute was under the erroneous impression that this slide had been among other slides which Dow turned over to Consumers. See Nute Tr. 51,050-51, 51,325, 51,382.

The record demonstrates that this was not the case (Nute Tr. 51,318, i

51,326, 51,371; and see NRC Staff Ex. 5, Doc. No. 17DD, Exhibits

following Pt. IV, p. 4), and that neither Renfrme nor Rosso saw the t " litigation slide" prior to the suspension hearing. Renfrow Tr.

51,961, 51,963-66; Rosso Tr. 53,392-93.

I As for the footnote discussion in Consumers' Reply Brief regarding Joseph Temple's speculation on the influence that a Consumers' " threat of litigation" may have had on the Dow U.S.A.

Ecard's ultimate decision, we observed there that Temple curiously, (in light of Dow's professed concern with a Consumers' claim of

" sabotage") " volunteered" this information at the suspension hearing.

See CP Co. Reply Br. at p. 10, n.9. In connection with Mr. Potter's letter response to this observation, the Board may find instructive an earlier portion of the suspension transcript, at pp. 432-36, as'well as the Temple testimony at pp. 2310-11.

We do not believe any further elaboration by the parties on these or other matters relating to the state of the record would serve any useful purpose. The issues before the Board have been fully briefed, and we are confident that the Board, in evaluating the proposed findings of fact and conclusions of law submitted by -

the parties, will examine carefully the record references contained in the several filings.

.. Respt!c'tfully submittAd,'

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L -- Fm. Bradford Reynpids . -

-- Counsel -for- Consumers--Power- Company

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UBR:ats cc: All parties

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