ML19331A774
| ML19331A774 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 03/30/1979 |
| From: | Dambly D, Hoefling R, Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007230805 | |
| Download: ML19331A774 (9) | |
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NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD D 1
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In the Matter of
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6 CONSUMERS POWER COMPANY
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Docket Nos. 50-329
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50-330 (Midland Plant, Units 1 and 2)
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NRC STAFF RESPONSE TO LICENSING BOARD'S JANUARY 4, 1979 ORDER REQUESTING ADDITIONAL INFORMATION FROM THE PARTIES TO THIS PROCEEDING I.
Introduction In 1972 an Atomic Safety and Licensing Board authorized the issuance of construction permits to Consumers Power Company (Applicant) for thetwo-unitMidlandfacility.E The Licensing Board's decision was affimed by the Appeal Board.E Certain groups and individuals who had intervened in the proceedings sought review in the District of Columbia Court of Appeals.
In 1976 that court found that the administrative proceedings had been defective in certain respects and remanded the matter to the Commission for further proceedings.3/
Although review by certiorari was granted by the U.S. Supreme Court.
the Commission in the meantime assigned the issues remanded by the Circuit Court to a licensing board, instructing it to determine whether the construction permits should be suspended in the interim pending the Board's consideration of the merits of the remanded issues.O
-1/ L8P-72-34, 5 AEC 214 (1972). 800723.0 Of r
2] ALAB-123, 6 AEC 331 (1973).
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-3/ Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir. 1976), rev'd and remanded sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC 435 U.S. 519 (1978).
y CLI-76-11, 4 NRC 65 (1976); CLI-76-14, 4 NRC 163 (1976).
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After taking evidence during some 30 hearing days during the period November 1976 to May 1977, the Licensing Board issued a decision in September 1977 declining to suspend construction pending its decisiononthemerits.1I During the course of those proceedings, however, the Applicant presented the testimony of Joseph G. Temple, Jr., then General Manager of the Michigan Division of Dow Chemical USA, an operating unit of Dow Chemical Company (Dow). Mr. Temple's testimony had been prepared to address one of the matters which the Circuit Court had directed the Commission to consider during the Conduct of further proceedings, i.e., whether there were changed circum-stances which affected Dow's need for process steam which according to an existing contract between Dow and the Applicant, Dow was to receive from one of the Midland units.
After Mr. Temple's written direct testimony was received (Tr. 220) in the record, certain documents came to light as a result of ongoing discovery which revealed that while the official Dow corporate position was as indicated in Mr. Temple's testimony, there were serious disagreements within Dow's Midland Division concerning the continued economic viability of Dow's participation in the project. Other documents indicated that thc.e may have been a desire on the part of the Applicant's attorneys to use a Dow witness unfamiliar with the facts.2/ The Licensing Board concluded that there may have been 1/ 6 NRC 485.
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e o attempts to prevent disclosure of important facts to the Board but thatnoneweresuccessful.1/
The Appeal Board affirmed the Licensing Board's decision not to' suspend construction pending construction of the remand issues but directed the Board to further explore the alleged attempt by the Applicant to prevent full disclosure whether or not the parties were otherwise interested in the matter.2/ Following the Supreme Court's reversal of the Circuit Court's decision, the Commission considered whether there were any issues remaining for determination in the remand pro-ceeding. The Commission noted the Appeal Board's direction on the full disclosure matter and directed this Board to further pursue the matter.3/
In furtherance of that directive, this Board on January 4,1979 directed
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the parties to provide the following information:
1.
A statement of the issues of fact or law which are involved in this hearing, including legal duties of parties to NRC [ proceedings] recarding full disclosure.
2.
Designation of all portic<- of the prior record which should be considered, intiuding transcript references, affidavits, exhibits, documents, briefs and other writings.
1/
6 NRC 485.
2/ ALAB-458, 7 NRC 155, 177 (1978).
3/ Unpublished Order dated November 6, 1978.
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List of the nr.mes and addresses of all witnesses or persons alleged to possess information regarding this matter.
4.
Motions, points and authorities, briefs or memoranda of law.
II.
I Discussion The Staff's response to the-Board's requests is set forth herein.
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All parties to NRC proceedings have an affirmative duty to keep Boards
.1 advised of significant changes and developments relevant and material f
to the proceedings.
Duke Power Co. (Alvin W. Vogtle Nuclear Plant, l
Units 1 and 2), ALAB-291, 2 NRC 404, 408 (1975); Duke Power Co. (William i
B. McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623, 625, 26 (1973). Since parties have an affirmative duty to make full disclosure, the following issues are involved in this proceeding:
1.
Was there a full disclosure on the record of the material facts relating to Dow's intentions with regard to its con-
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tract with Consumers'?
2.
Even, if a full disclosure of the Dew position was presented, i
was there an attempt to present false or misleading testimony i
2 concerning the Dow position?
3.
If such an attempt was made, was it made by Consumers' or another party, or by counsel to any party?
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Was there "an attempt by any party or counsel to any party to mislead the Board concerning the facts surrounding the preparation of the Temple testimony?
The NRC Staff would designate the following portion of the prior record for consideration:
1.
The Temple testimony and documents discussed therein.
(Tr. 217-462 and 2276-2673).
2.
The Orefice testimony.
(Tr. 2687-2741).
3.
All briefs, affidavits and documents filed in December in 1976 in response to a previous Board Order on this subject.
(Tr. 502).
l The Staff believes the following persons may have information i
l regarding this matter..
Full names and addresses are provided l
where such information is known to the Staff.
j 1.
Joseph G. Temple, Jr.
.i The Dow Chemical Company P. O. Box 271 Midland, Michigan 48640 2.
Paul F. Orefice The Dow Chemical Company P. O. Box 271 Midland, Michigan 48640 3.
Lee Nute, Esq.
The Dow Chemical Company P. O. Box 271 Midland, Michigan 48640 j
4 4.
Milton Wessel, Esq.
The Dow Chemical Company P. O. Box 271 Midland, Michigan 48640 qiew
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Rex Renfrow, Esq.
current address unknown j
6.
David Rosso, Esq.
Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201
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Judd L. Bacon, Esq.
Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 8.
Jim Hanes 212 West Michigan Avenue j
Jackson, Michigan 49201 9.
Al Klomparens
't 212 West Michigan Avenue i
Jackson, Michigan 49201 3
1 10.
James Falahee i
212 West Michigan Avenue i
Jackson, Michigan 49201 11.
D.A. Duran 212 West Michigan Avenue Jackson, Michigan 49201 i
The Staff has no motions to make or further legal argument at this time. The Staff, of course, reserves its. right to r.espond to motions -
or briefs of other parties to this proceeding at the appropriate time.
Respectfully submitted, i
William J. 01. stead Counsel for NRC Staff
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Dennis C. Dambly
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Cour el for NRC Staff (M
d Richard K. Hoefling j
Counsel for NRC Staff Dated at Bethesda, Maryland this 30th day of March, 1979
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ' ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos, 50-329
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50-330 (Midland Plant, Units 1 and 2)
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(Operating Licenses Proceeding)
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney. herewith enters an appearance in the above-captioned matter.
In accordance with 12.713, 10 CFR Part 2, the following information is provided:
Name:
- Dennis C. Dambly Address:
Office of the Executive Legal Director '
U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Telephone Number:
- (301) 492-8662 Admissions:
Supreme Court of Florida District of Columbia Court of Appeals Name of Party:
NRC Staff U.S. Nuclear Regulato'ry Commission Respectfully submitted,
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Dennis C. Dambly Counsel for NRC Staff Dated at Bethesda, Maryland this 30th day of 11 arch,1979.
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_.m UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BE' FORE THE ATOMIC SAFETi AND LICENSING BOARD In the Matter of
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CONSUMERS POWER COMPANY
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Docket Hos. 50-329
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50-330 (Midland Plant, Units 1 and 2)
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(Operating Licenses Proceeding) i CERTIFICATE OF SERVICE
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L I hereby certify that copies of "NRC STAFF RESPONSE TO LICENSING BOARD'S JANUARY 4,1979 ORDER REQUESTING ADDITIONAL INFORMATION FROM THE PARTIES TO THIS PROCEEDING" and NOTICE OF APPEARANCE OF DENNIS C. DAMBLY, dated 1
March 30, 1979, in the above-captioned proceeding, have been served on the following by deposit in the United States mail, first class, this 30th day of March, 1979.
Ivan W. Smith, Esq.
Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Summerset Street U. S. Nuclear Regulatory Commission Midland, Michigan 48640 Washington, D. C.
20555 Michael I'. Miller, Esq.
Mr. Lester Kornblith, Jr.
Ronald G. Zamarin, Esq.
Atomic Safety and Licensing Board Martha E. Gibbs, Esq.
U. S. Nuclear Regulatory Commission Caryl A. Bartelman, Esq.
Washington, D. C.
20555 Isham, Lincoln & Beale One First National Plaza Dr. Frederick P. Cowan 42nd Floor 6152 N. Verde Trail Chicago,. Illinois 60603 Apt. B-125 Boca Raton, Florida 33433 Atomic Safety & Licensing Board Panel U. S. Nuclear Regulatory Commission Frank J. Kelley Washington, D. C.
20555 Attorney General of the State of Michigan Stewart H. Freeman Atomic Safety a Licensing Appeal Panel Assistant Attorney General U. S. Nuclear Regulatory Commission Gregory T. Taylor Washington, D. C.
20555 Assistant Attorney Generals Environmental Protection Division Docketing and Service Section 720 Law Building Office of the Secretary Lansing, Michigan 48913 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Myron M. Cherry, Esq.
1 IBM Plaza Chicago, Illinois 60611
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Judd L. Bacon, Esq.
Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 Wendell Marshall Route #2 Midland, Michigan 48640 Mr. Steve Gadler 2120 Carter Avenue St. Paul, Minnesota 55108 i
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