ML19309G137

Forwards 800111 Ltr,Previously Sent to Aslb,Re Midland Intervenors Concerns About Underlying Charges.Wishes to Determine Whether Action Should Be Taken Sua Sponte Due to Importance of Info

ML19309G137
Person / Time
Site:	Midland
Issue date:	04/02/1980
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Cowan F, Linenburger G, Smith I Atomic Safety and Licensing Board Panel
Shared Package
ML19309G138	List: ML19309G137 ML19309G140 ML19309G143
References
NUDOCS 8005050023
Download: ML19309G137 (1)

Text

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'aw orricEs 80050 50 O Z3 C H E R R Y, F LY N N & K A N T E R h ONE IBM PLAZA MYRO N M. CH E RR y CHICAGO. ILLIN OIS 60611 TCLE PHO N E PETER rLYN N (3 82) 56 5-II??

ARNOLO KANTER April 2, 1980 Ivan W. Smith, Esq. Gustav Linenburger, Esq.

Atomic Safety and Licensing Board Atomic Safety and Licensing Board U. S. Nuclear Regulatory Comm. U. S. Nuclear Regulatory Comm.

Room 450 East / West Room 450 East / West Washington, D. C. 20555 Washington, D. C. 20555 Dr. Frederick P. Cowan 6152 North Verde Trail Dept. B-125 Boca Raton, Florida 33433 Re: Consumers Power Company (Midland Plant Units 1 and 2), Docket Nos. 50-3290P and 50-3300P (Operating License Proceeding)

Gentlemen:

I earlier sent a copy of the enclosed letter dated January 11, 1980, to members of the Midland Construc-tion Permit Board. They apparently choose to ignore this letter since I have received no response.

I am forwarding on this letter to each of you as members of the Operating Board in an effort to determine whether or not the Operating Board deems this information sufficiently important to take action sua sponte.

^ espe tfully,

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law CFFICES C H E R R Y. FLY N N & .K A N T E R ONCIBM P LA Z A MYRON M. CH CR RY CHICAGO, ILLINolS 60 611 TELCpwoN C PCTCR FLYN N 13:23 56 5 It?7 ARNOLD M ANTCR January 11, 1980 Marshall E. Miller, Esq. .

Dr. J. Venn Leeds, Jr.

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

'o Dr. Emmeth A. Luebke

// COCKE G Atomic Safety and Licensing Board UI';70 U.S. Nuclear Regulatory Commission APR 71980 >

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,  : Consumers Power Company (Midland Plant ca

' O Units 1 and 2), Docket Nos. 50-329CP jb and 50-330CP (Remand Proceeding)

Gentlemen:-

I write to call to your attention certain matters which I believe you should consider in connection with your pending initial decisions in the above dockets. I am doing so as counsel to the Midland Intervenors, as well as in my capacity as a lawyer who has had long experience both in matters before the AEC-NRC and in litigation with Consumers Power Company, and who played a major role in uncovering the evidence giving rise to the present proceedings.

As you know, the Midland Intervenors lacked funds to participate in the recent hearings in this docket. In addition, I was unavoidably engaged elsewhere--including a lengthy Federal Court trial--at the' time of both the hearings and the preceding i discovery. My requests for relief in that regard were denied.

You may also recall that the ultimate reason why these Intervenors ,

did not formally appear in these proceedings was because the NRC  !

refused our request for funds to participate.

We are, however, intensely familiar with and concerned )

about the underlying charges which have been the subject of th,ese l

remand proceedings, and have been consistently served with all of 1 the relevant papers, including the final briefs. In that regard l

if, in our judgment, a decision rendered by the Licensing Board l

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_ _. __ _ _ _ _ _ _ _ _ _ _ _ __ f

i Marshall E. Miller,' Esq.

Dr. J. Venn Leeds, Jr.

Dr. Emmeth A. Luebke January 11, 1980 Page Two in this proceeding is not supported by the evidence and neglects to deal with the issues fairly and appropriately, we, of course, reserve our right to appeal. f It is for this reason that, after having reviewed the post-trial briefs of the various parties, we feel compelled to submit our views to you at this juncture. .

The Board will recall that the foundational reason why this remand procee.*ng is being held is because I, as counsel for the Midland Intervenors, cross-examined a Consumer witness and secured admissions from that Consumers' witness that his testimony, admittedly crecared bv counsel for Consumers, was not an accurate and complete statement of the events. Thereafter, various requests for documents were made by me on behalf of my clients (with the concurrence and suggestion of the then Licensing Board) and various documents were produced.* Those documents clevely indicated that the rift between Dow and Consumers had been in fact secreted from the hearing, and further that the secretion was known by the party responsible for tendering the witness in question--Consumers Power company.

I take pains to recall the rather simple way these issues arose because, after all, the beginning is essential to a lawyer-like understanding of what took place. Thus, no one

.can argue (and the record does not support) the notion that Consumers' officials somehow just " happened" into this controversy; rather Consumers' own damning documents show that it planned it from the outset.

Part of the Midland Intervenors' argument has long been that Consumers Power Company cannot be trusted responsibly and candidly to operate a nuclear facility in accordance with NRC Regulations, including reporting requirements. Even before these issues arose, Consumers Power Company had been cited for negligence and noncompliance in the construction and operation of Palisades and also in the construction of Midland. With

• It is important to add in this connection that the party most cooperative in the production of these documents, oned the issue had arisen, was Dow Chemical Company.

r Marshall E. Miller, Esq. I Dr. J. Venn Leeds, Jr. l Dr. Emmeth A. Luebke

, January 11, 1980 l

Page Three l

l specific regard to Midland, the NRC Staff has time and again noted Consumers' attitude of trying evasively to sidestap QA-QC requirements rather than forthrightly complying with them or  !

admitting its obvious and egregious lapses. Even since these proceedings have begun, Consumers Power Company has been fined in substantial amounts for failing to report what appear to be .

intentional releases of radioactivity at Palisades. These I

~

l events disclose a pattern of negligence at the least, if not outright dishonesty, and call into serious question the propriety of permitting Consumers to operate a nuclear power plant.

It was of course this underlying reason which rendered urgent our concern over the discovery that Consumers Power Company failed to be honest with the Licensing Board and with the other ,

parties to the hearing by withholding the facts that there was a  !

dispute with Dow Chemical Company; by threatening (at the highest i corporato levels) Dow with a sweeping lawsuit if Dow did not do I whatever was necessary to preserve Consumer Power Company's construction permit; and by plotting at board meetings as to how much of the story Consumers can avoid, and how the whole problem can be " finessed."*

Given this background and context, it is alarming that Consumers (incredibly, with the apparent acquiescence of the Regulatory Staff) begins in its post-trial papers to divert

. attention from the real culprit in these proceedings--that is, Consumers--by attempting to focus on the rather technical and more cumbersome issue of which " lawyer did the dirty work."

It is even more alarming that Consumers has evidently nominated as its scapegoat Milton Wessel, trial counsel for Dow Chemical Company. In my judgment, Mr. Wessel is the person who through-out the entire suspension proceeding acted with the greatest candor, forthrightness, and propriety.-

• For anyone to believe that Consumers' intention was other than disclosed by the documents is, of course, nonsense.

And if the whole affair was as " innocent" or " ambiguous" as Consumers would have us believe, of what took place con-tained in Consumers' post-trial papers, why did no lesser , I a Consumers' official than Mr. Aymond, as well as other l high officials of Consumers, spend so much time trying to ,

cover Consumers' tracks? l

Marshall E. Miller, Esq.

Dr. J. Venn Leeds, Jr.

Dr. E=meth A. Luebke January 11, 1980 Page Four Neither I nor the Midland Intervenors have any axe to grind with regard to Mr. Wessel. But Consumers' attack on him is not only grossly unfair to him but also a palpable and disingenuous attempt to subvert the purpose of these proceedings by avoiding concentration and focus on the Consumers officials whose conduct is the subject of the proceedings. While neither I nor my clients were privy to ~

any discussions among lawyers for Consumers and Dow during the suspension hearings, I can report that in my dealings at those hearings, I never received an uncandid or incomplete answer from Mr. Wessel when I directed inquiry to him about testimony or documents. I also know that the Dow witnesses who ultimately appeared testified (after, as I understand it, ,

having been prepared by Mr. Wessel) openly and directly, and I gave forthright answers to my questions regardless of the consequences. By contrast, the record reveals that when Consumers' witnesses were cross-examined on the same issues, they often gave evasive answers in an attempt to avoid the issue. j The purpose of this communication, in the nature of our post-trial memorandum, is therefore to state to the Board that after review of all of the evidence generated at the recent proceedings and sent to us, and after review of all the briefs, we believe that Consumers has attempted to distort the proceedings by persistently focusing on a fictitious issue. The true issue was and is, and so long as Consumers is licensed to operate nuclear plants will continue to be, whether Consumers has the integrity and honesty to so operate. The prime, specific and ultimate responsibility here rests upon Consumers and its officials; after all, had they instructed Consumers' counsel to be candid (rather than deliberately to cover up important fact) , the present inquiry '

would never have been necassary. To misdirect that focus would make a travesty of these lengthy proceedings.

We are distressed by the lack of hard-hitting inquiry which the record of the recent proceedings indicates on several occasions. We regret the inability to participate l in developing that record. However, this lack may be corrected if the Board will, as it should, focus its ultimate attention ,

(reopening the record if necessary) on the simple question whether Consumers' officials acted openly, honestly, and with l

F

Marshall E. Miller, Esq.

Dr. J. Venn Leeds, Jr.

Dr. Emmeth A. Luebke January 11, 1980 Page Five integrity in connection with the secreted issues. In light of the record, I do not believe the Board can come to a conclusion other than that Consumers and its officials did not so act.

Respectfully,.

o

/ U j ri e Myxo M. Cherry J

MMC /dn cc: Counsel for Consumers Power Company; Dow Chemical Company; and the United States Nuclear Regulatory Staff 9

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