ML19330A136
| ML19330A136 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/23/1977 |
| From: | Coufal F Atomic Safety and Licensing Board Panel |
| To: | CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| References | |
| NUDOCS 8007150906 | |
| Download: ML19330A136 (15) | |
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4 47 UNITED STATES OF AMERICA eg NUCLEAR REGULATORY COMMISSION gjy y
In the Matter of
- Io' CONSUMERS POWER COMPANY
)
Docket Nos. 50-329
)
50-330 (Midland Plant, Units 1 and 2)
)
MEMORANDUM AND ORDER Pursuant to previous orders of this Board, various objections to offered exhibits remain to be disposed of.
These mainly involve exhibits offered by all intervenors, other than Dow Chemical Company (Intervenors), although licensee Consumers Power Company (Consumers) has also offered some exhibits, and the Regulatory Staff (Staff) has offered one exhibit, on which the Board must rule.
Before proceeding to an exhibit by exhibit consideration, the Board wishes to first resolve a dispute that has arisen between Intervenors on the one hand and Consumers and the Staff on the other.
During the course of his cross-examination of Mr. Temple on February 1, 1977, counsel for intervenors sought and obtained a stipulation of the parties that certain objections to the admission of documents obtained on discovery would be waived.
Counsel for intervenors argues that objections on a
8007150 90 g
, the grounds of both authenticity and foundation were waived.
Consumers and Staff urge that the waiver applies to authen-ticity alone.
The Board is of the opinion that, regardless of the scope of the stipulation, the obj ections based on foundation are not well taken.
All of the documents in question were obtained from files maintained by other parties in the regular course of business.
While the Board recognizes that the " Business Records" rule -urged by Intervenors as a justification for the admission of the documents may not be strictly applicable, the Board believes that it nevertheless may furnish guidance.
U. S. v. Razano, 520 F.2d 1191 (5th Cir. 1975); Meister v.
C.I.R., 504 F.2d 505 (3rd Cir. 1974);
U. S. v. Henderson, 446 F.2d 960 (8th Cir. 1971); Sam Macri
& Sons, Inc. v. U.
S., 313 F.2d 119 (9th Cir. 1963); Carroll U. S.; 326 F.2d 72 (9th Cir. 1963).
Here the documents v.
in question are stipulated to be authentic.
So there is no 1
obligation on Intervenors part to furnish witnesses to identify the documents.
What remains is the question whether the Intervenors must furnish witnesses with specific knowledge of the factual matters recited in the document so that the other parties could conduct effective cross-examination.
While the Board feels that the failure to provide such a 9
E witness clearly affects the weight to be accorded the documents, cf. Pullev v. U.
S., 253 F.2d 796 (8th Cir.
1958), the Board will not exclude the documents on this basis.
However, Intervenors' exhibits 59 through 82 suffer from another infirmity.
They are not timely.
Exhibits 59 through 77 were not identified until approximately two hours prior to the close of the hearing.
Exhibits 60A and 78-82 were not identified until after the hearing closed.
Clearly the other parties to this proceeding were not, under these circumstances, given an adequate opportunity to respond.
Basic fairness requires thar these documents, all of which (with one exception) were available to the Intervenors in sufficient time to permit adequate notice to the other parties, be excluded.
(The one exception, exhibit 76, a document dealing with quality control, is clearly irrelevant and therefore excluded.)
Consumers' and Staff's obj ections are therefore sustained.
Intervenors' Exhibits There are no exhibits 1 and 2.
Exhibit 3, a Dow report of a July 15, 1975, meeting with Consumers in regard to Midland, appears too dated to
. be of much value in assessing the Dow-Consumers relation-ship of today.
Consumers' and Staff's objections are well taken.
Exhibit 4 was not offered.
Exhibit 5, a document of June 2, 1975, appears too dated.
It discussed an alternative, providing steam from Unit 2 rather than Unit 1, which, although it would have accelerated the availability of steam by one year apparently was not taken.
Consumers' objection to the document notes that this alternative would have had to be implemented by August 1, 1975.
Exhibit 6, a letter of February 9, 1976, from Nute to Bacon discusses Dow's position with regard to a final date for delivery of steam.
As such, it is relevant to the current Consumers-Dow relationship; the Staff's objection is therefore overruled.
Consumers' objection that no one sponsored the document has been dealt with above.
- Further, Consu' ers' obj ection that the Board will take into account m
no one testified as to the accuracy of the document in its consideration of the document.
The objections of the Staff and Consumers to exhibit 7 are not well taken.
The document recites negotiating
. positions taken by Dow and Consumers at a January 9,1976 meeting.
These positions are relevant to the positions which they currently take.
There being no objection to exhibit 8, this document is admitted.
Consumers' objection to the admission of exhibit 9 has been dealt with above and the document is admitted.
The document, prepared by Consumers in preparation for a September 24, 1976 meeting with Dow, appears clearly rele-vant to the question of the cost to Consumers of a suspension of the permit.
The Staff objects to exhibits 10 and 11 on the ground of relevance.
Both were furnished by Consumers.
Exhibit 10 is entitled " Consumers Power Main System" and 11, " Material to Dr. Timm."
These exhibits are admitted into evidence; they set forth the background of Dr. Timm's testimony.
There being no obj ection, Intervenors' exhibits 12 through 20 are olmitted.
Consumers' objection to the admission of exhibit 21 which was prepared by General Motors at Consumers' request
_ i is sustained.
In view of the fact that the document was not prepared by Consumers, Intervenors should have provided a sponsoring witness to attest to its authenticity.
The Staff objects to the admission of exhibit 22 on hearsay grounds.
Consumers does not object.
The document was prepared by Consumers on August 10, 1976, and is entitled
" Economic Prospects -- The Next Ten Years." 'The Board will admit the document, and accord it appropriate weight.
Consumers' objection to the admission of exhibit 23, notes made by Mr. Nute in response to Mr. Cherry's oral request, is sustained.
In view of the statement of the face of the exhibit that the information contained therein would be affirmed in a response to a written intcrrogatory, the response to that interrogatory which is offered as Intervenors' exhibit 30 is to be preferred.
The objections of the Staff and Consumers to exhibit 24, Dow internal correspondence of June 30, 1976, are well taken.
A Dow executive's personal views of his negotiating counterparts are not relevant to the current state of the relationship between Dow and Consumers.
The Staff's and Consumers' objections to the admission of exhibit 25 are overruled.
This memorandum of a l-l l
. Dow-Consumers September 21, 1976 meeting prepared by Mr.
Nute is clearly relevant to the dispute between Dow and Consumers and therefore to their current relationship.
There being no objection, Intervenors' exhibit 26 is admitted into evidence.
Intervenors' exhibit 27 is a copy of the notes taken by Mr. Nute of a September 24, 1976 meeting between Dow and Consumers to discuss Dow's testimony in this proceeding.
The Staff objects to the admission of this exhibit on the grounds that the notes are not the best evidence of Dow's intention with regard to its relationship with Consumers and in any event are cumulative.
Consumers obj ects that the exhibit is inadmissible hearsay.
The Board believes the exhibit should be admitted and will accord it appro-l priate weight.
i Intervenors' exhibit 28 consists of a cover memorandum dated April 24, 1975, enclosing two copies of a paragraph appearing in a preliminary prospectus filed with the SEC in connection with the proposed issuance of shares of j
preference stock by Consumers.
The paragrapn refers to correspondence with the Dow Chemical Company over Dow's allegations of a breach of its contract by Consumers.
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J The staff and Consumers object basically that the document is too dated to be of value in determining the issues before the Board.
The Board agrees and the exhibit is rejected.
Intervenors' exhibit 29 is a September 14, 1976, memo-randum to the file from Mr. Youngdahl concerning a September 13, 1976, meeting with Dow.
Consumers obj ects to the document to the extent that the memorandum discusses the Dow Michigan division's interim position in regard to its arrangement with Consumers.
Consumers points out that the Michigan division's interim position was not adopted by Dow and there-fore is bnmaterial and irrelevant.
The Board disagrees, the interim position of the Michigan division is relevant to the current state of the relations between Dow and Consumers.
The document sill be admitted.
There being no obj ection, Intervenors' exhibits 30 through 36 are admitted into evidence.
Intervenors' exhibit 37 consists of certain handwritten
- notes dated October 21, 1976, and initiated "R.J.C."
Staff obj ects that the document is irrelevant and confuses the record.
The document was apparently utilized by Dr. TLmn in preparing his testimony and the Board will therefore admit it.
_ There,being no objection, Intervenors' exhibits 38 through 40 are admitted.
Exhibits 41 through 45 concern the energy situation in Oregon and were prepared by the Oregon Department of Energy.
Staff and Consumers object on the grounds of relevancy.
The Board agrees that the work of the Oregon Energy Department regarding the energy situation in Oregon has no bearing upon the-issues to be decided in this case.
Admissibility is denied.
Intervenors' exhibits 46 and 46R, entitled " Cost of Alternatives," are objected to by the Applicant on the grounds that they are inaccurate.
Exhibit 46R was admitted during the course of the hearing, but the Applicant now moves to strike it.
Additionally, the Staff objects. that it has not received a copy of exhibit 46R.
Intervenors respond that they have furnished the Staff with a copy.
The Board will admit these exhibits and evaluate thdm in the course of evaluating Dr. Timm's testimony, s
Intervenors' exhibits 46 and 47 are newspaper articles apparently concerning proposed rate increases by Consumers, Consumers and the Staff object to their admission on the grounds that they are hearsay.
While the Board agrees, it will admit the exhibits and accord them such weight as they may be due.
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. Intervenors' exhibit 48 is a letter from Dr. Timm to Mr. Cherry dated February 9, 1977, which summarizes informal discovery of Dr. Time conducted by Consumers.
Consumers and the Staff object on the grounds of relevancy.
Intervenors respond that while the document need not be admitted in evi-dence, it is important to show that Consumers and Staff had access to Dr. Timm for discovery purposes for a substantial period of time.
In view of the positions of the parties, the document will not be admitted in evidence.
Exhibit 49 is a memorandum to file prepared by G. L.
Heins of Consumers on the subject of documents sent to NRC.
Consumers and the Staff object to its admission on the grounds of relevance.
Midland Intervenors argue that the document is relevant to the question of the thoroughness of the Staff's review.
The Board will admit the document.
There being no obj ection, Intervenors' exhibits 50 through 57 are admitted into evidence.
s Intervenors' exhibit 58 has not been offered in evidence.
Consumers' Exhibits Consumers' exhibit 28 consists of a two-page comparison of the cost of Dow's alternatives for the supply of power and
. process steam dated September 23, 1976, by J. R. Burrows.
Without obj ection, the exhibit is admitted.
Consumers' exhibit 29 consists of four pages of hand-written notes taken by Mr. Temple at a September 23, 1976, meeting between Dow and Consumers.
The Staff objects to its admission on the grounds that it'is not the best evidence.
The Staff contends that the notes constitute secondary evi-dence and that their proper role is a tool for cross-examination, but they should not be admitted and thereby burden the record.
The Board is of the opinien that notes and memoranda taken of meetings between Dow and Consumers are relevant to the current relationship between the two; therefore, the obj ection is over-ruled and the document will be admitted.
Consumers' exhibit 33 contains a description of licensee's compliance with the resolution of various ACRS items.
Intervenors object to the admission of this exhibit as a self-serving and inaccurate statement concerning the outstanding ACRS problems.
Intervenors do not elaborate on their objection and it is hereby overruled and the document will be admitted.
Consumers' exhibit 35 is an executed contract between Consumers and Commonwealth Edison Company for the sale of
- a portion of the Ludington Pumped Storage plant.
It is not objected to and therefore is admitted.
Consumers' exhibit 54 is the work papers which Dr. Timm utilized in preparing his testimony.
The exhibit is not objected to and is therefore admitted.
Consumers' exhibit 55 is a two page memorandum prepared by Paul Fine of the NRC upon which Dr..Timm relied in comput-ing the cost of coal to fuel an alternative to Midland.
It is not objected to and therefore is admitted.
Consumers' exhibit 56 consists of three pages and was identified by Dr. Timm as his backup calculations for the cost of delay.
It is not objected to and therefore is admitted.
Consumers' exhibit 57 is a Consumers Memorandum which was used as a basis for Dr. Timm's testimony.
It is not objected to and therefore is admitted. $
Consumers' exhibit 58 is a copy of the output of a "1230" computer program run by Consumers and relied upon by Dr. Timm in reaching his conclusions with regard to the cost of delay set forth in his testimony.
It is not objected to and therefore is admitted.
. Consumers' exhibit 59 is a document prepared by Consumers entitled " Economic Variables - Historical and Projected Values."
The document is dated October 27, 1976.
Consumers offers the document in connection with Intervenors' exhibit number 22 so as to avoid any possible confusion regarding the documentacion and foundation for the details of the load forecasting analysis.
The Staff objects to this document on the grounds that it tends to confuse the record.
The Staff had objected to the admission of Intervenors' exhibit 22 which the Board has admitted.
The Board will admit Consumers' exhibit 59 for the reasons set forth by Consumers.
Consumers offers exhibit 60 in order to clarify Midland Intervenors' exhibit 11 as to which Consumers alleges there has been some confusion.
The Staff objects to the admission of this document as it had objected to Midland Intervenors' exhibit 11.
For the same reason that the Board admitted Midland Intervenors' exhibit 11, it will also admit Consumers' exhibit 60.
Consumers moves the admission of its exhibits 24-27 and 34 if Intervenors' exhibits 6, 9, 23, 25, 27 and 59-77 are admitted.
The Beard has admitted all of these exhibits except 23 and 59-77.
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. The Staff does not object to the admission of Consumers' exhibit 24, a memorandum of September 27, 1976, from Mr.
Wessel to Mr. Nute concerning preparation for the forthcoming hearings.
Accordingly, it is admitted.
The Staff obj ects to Consumers' exhibits 25-27, economic evaluations performed by Dow in comparing the Midland facility to other alternatives, on the grounds that they are cumulative and confuse the record.
The obj ection is overruled.
The Staff objects to Consumers' exhibit 34 en hearsay grounds.
Exhibit 34 is a copy of a letter dated July 30, 1976, from Ourano Hydro to the Detroit Edison Company inquiring into the availability of power and energy for purchase by Ontario Hydro from the early 1980's onward.
The exhibit will be admitted; however the Board will be mindful of the Staff's objection in its deliberations.
Consumers has identified a number of documents which it wishes admitted should Intervenors' exhibits 59-77 be admitted.
In view of the Board's ruling on Intervenors' exhibits 59-77, these documents will not be admitted.
Staff's Exhibit After the close of the hearing, the Staff identified and offered its exhibit 9, a paper entitled " Enrichment
.s s
, Policies" presented at the Atomic Industrial Forum's Fuel Cycle Conference of April,1977.
Intervenors obj ect to its admission for lack of foundation and on the theory that this document is not covered by the stipulation discussed above.
For the reasons given in ruling on Intervenors' exhibits 59-82, the obj ection is sustained.
Board's Exhibits Consumers has moved that Board exhibits 3 and 4 be received in evidence and Staff has moved the admission of exhibit 3.
Without obj ection, it is so ordered.
Inter-venors have moved that Board exhibits 1 and 2 be received in evidence.
Consumers objects.
Board exhibits 1 and 2 were admitted into evidence on December 1, 1976.
Tr. 293.
THE ATOMIC SAFETY AND LICENSLNG BOARD r
i Frederic J."Coufal,(J21aQ Dated at Bethesda, Ma'ryland, this 23rd day of September, 1977.
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