ML19331B294

Further Responds to Applicant Objections to & Motion to Strike Dow Chemical Co Proposed Transcript Corrections.Urges Correction of Transcript & Denial of Motion.Certificate of Svc Encl

ML19331B294
Person / Time
Site:	Midland
Issue date:	08/17/1977
From:	Nute L, Pribila L DOW CHEMICAL CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007280899
Download: ML19331B294 (6)

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THIS DOCUMENT CONTAINS ,

g POOR QUAUTY PAGES 9 ,-

UtlITED STATES OF AMERIC g)G 1.9 I .

f!UCLEAR REGULATORY COMMISSION d'[

g 4V Before the Atomic Safety and Licensino Coard Y In the Matter of )

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CONSUMERS PCWER COMPAtiY ) Docket Nos. 50-329 __

) ou-J3D (Midland Plant, Units 1 and 2) )

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THE 00W CHEMICAL COMPAtlY'S FURTHER RESPONSE TO CONSLMERS POWER COMPANY'S CEJECTIO lS TO AND MOTICtl TO STRIKE PROPOSED TRANSCRIPT CORRECTIONS OF THE DOW CHEMICAL COMPA?!Y The following is submitted in further response

• Consumers Power Ccmpany's (" Consumers'") Objections to and Motion to Strike Procosed Transcript Corrections of The Dcw Chemical Company ("Dow"). In its initial response to that document, Dcw requested additional time in which t.) respond to the substantive aspects of Consumers' objections. .

That request subsequently was granted by the Atomic Safety and Licensing Board ("Scard"), and Dow was given until August 17, 1977 to file a further response (Board Order dated August 10,1977).

During the hearing, Dow stressed the importance of the record of the hearing being correct, and of the duty of counsel for each of the-parties to insure that the ecord is correct (Tr.,939-A). Dow also stressed the importance of promptly correcting the transcript because it "may be relevant a long time hence, when different counsel are involved and recollections may be dim or missing entirely" (letter from Dow to Chairman Head, December 20, 1976). It was for these reasons that the Dow representatives corrected the transcript of their oral testimony as soon as practicable after the transcript was available, and counsel for Dow submitted those corrections in a timaly manner.

With respect to the matters raised by Censumers in its Objec-tions to and Motion to Strike Proposed Transcript Corrections of The Dcw sS0 0's 2 8 0 h9y

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., s Chemical Company, Dow believes this Board must simply decide whether the proposed corrections by Dow accurately reflect the oral tes,timony, and the meaning of that testimony, given at the hearing.

For the convenience of the Board, in the discussions which follow, Censumers' objections are set forth as well as the Ocw response thereto.

1. Consumers' Motien to Strike Corrections No.'7 and No. 24 i of Dcw's January 24, 1977 filing states: "This ' correction' is a request for insertion of an entire sentence into the record." As the' Board will note, Cons 6mers' Motion is directed not at the accuracy of the sentence, but only at the fact that a complete sentence has been proposed. The witness believed the inclusion of these sentences would result in the record correctly reflecting his meaning. Consumers has conceded that

" transcript corrections may result in the written record of the pro-ceeding comporting with the meaning intended by a witness at the time of his oral testimony" (Consumers Power Company's Objections to and Motion to Strike Proposed Transcript Corrections of The Dow Chemical Company).

Further, the Board has the pcwer to correct the record to reflect the truth. 73 CJS Sec. 153. The corrections should not be stricken.

2. Consumers' objections to the Proposed Corrections Nc. 9 and No. 82 of Dcw's March 1, 1977 filing states: "This ' correction' r

changes the apparent meaning of the witness' testimony." To the con-

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trary, Dow believes the correction accurately reflects the witness' meaning. Even if Consumers is. correct, it has conceded that one purpose of the corrections is to make the record comport "with the meaning intended by a witness" supra. ThePreposedCorrebtionsshouldbeallcwed.

3. Consumers' objection to the Proposed Corrections No.17, i No. 27 'and No. 34 of Dow's March 1,1977 filing states: " Licensee believes this ' correction' to be an af ter-the-fact addition to the record." This objection does no more than state the obvious. All .i corrections are af ter-the-fact additions or changes to the record. If Consumers' objection were sufficient reason in and of itself to prevent correcting the-transcript, no proposed transcript corrections would'ever beLpermitted. These corrections make-the record reflect tne testimony i

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of the witness and the meaning intended'by '. hat testimony. 'The Proposed Corrections ~should be allowed.

E4. Consumers' objection to Proposed Correction No. 28 of Dow's March 1,1977 filing states, .in part: "This ' correction' does not 1

. comport with Licensee's recollection of the' testimony." Dow acknowl-

. edges that-if Consumers' recollection of the testimony is accurate, this objection is valid. Dow.would point out, ht.rever, that Dow representa-Ltives reviewed the testimony and submitted corrections within weeks of the actual testimony, while Consumers did not review the testimony until some five months later. The Board should consider this factor in ruling on the accuracy of the Proposed Corrections.

5. Consumers' objection to Proposed Correction No. 30 of Dow's March 1,1977 filing stares: "This ' correction' changes the apparent.meanir.g of the witness' testimony and does not comport with

-Licensee's recollection of it." Since this objection is merely a combination of the objections contained in numbered paragraphs 2 and 4

. above, the Cow responses to those paragraphs are applicable to this

, objection.

p 6. Consumers' objection to Proposed Correction No. 73 of Dow's March 1, 1977 filing states: "This ' correction' is a substantive change of the cross-examiner's question and not the witness' statement."

t- The Proposed Correction accurately states the question asked the wit-

.. ness, and to which the witness responded. The ar.swer of the witness would make no ser.se otherwise. Dew had done many studies on costs of a Lplant capable of generating 2.4 million pounds of steam per hour. The i

' witness testified that Dcw had not, to iris kncwledge, done-costs ,m a plant generating more than 2.4 million pounds of steam per hour. The i

' Proposed Correction should be allowed.

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_7. Consumers' comment on the Proposed ~ Correction No. 78 of '

4 Dow's Marc'h 1,1977 filing is partially ccrrect. The Proposed Ccerec-s tion should read "was". and not "eas." This change should be made.

'13. Consumers' objection to Proposed Correction No. 3 of

-Dow's March 1, 1977' filing states: "This ' correction' is a substantive l

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change of the cross-examiner's question and not the witness' statement."

The Proposed Correction is not a ' substantive" change, but merely corrects the number to reflect the question. If Consumers wishes the question to remain as is, Dow does not object.

For the foregoing reasons, as well as for Consumers' failure to raise or file its objections in a timely manner, Dow urges the Board, with the exception of flo. 7 and tio. 8 herein, to order the transcript

, corrected in accordance with Dow's Motion of May 17,1977 (Tr. 6279),

and to deny Consumers' Motien to Strike.

Respectfully submitted, THE DOW CHEMICAL COMPAtlY

$s Li W. Pribila, Attorney C .

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L. F. flute, Attorney Dated: August 17, 1977 N

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97 UNITED STATES OF AMERICA .~ p $s N go] ] >y NUCLEAR REGULATORY COMMISSION ( a T,,

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) e In the Matter of )

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CONSUMERS POWER COMPANY ) Docket Nos. 50-329

) 50-330 (Midland Plant, Units-1 and 2)- )

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CERTIFICATE OF SERVICE ,

I hereby certify that copies of the attached "THE DOW CHEMICAL COMPANY'S FURTHER RESPONSE TO CONSUMERS POWER COMPANY'S OBJECTIONS TO AND MOTION TO STRIKE PROPOSED TRANSCRIPT CORRECTIONS OF THE DOW CHEMICAL COMPANY" dated August 17, 1977 in the above-captioned proceeding, have been served on the following by deposit in the United States mail, first class or air mail, this 17th day of August, 1977. A copy was also furnished the Atemic Safety and Licensing Board by telecopier on August 17, 1977.

Frederic J. Coufal, Esq. , Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. J. Venn Leeds, Jr. Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Summerset Street 10807 Atwell Midland, MI 48640 Houston, Texas 77096 s Dr. Emmeth A. Luebke Harold F. Reis, Esq.

Atomic Safety and Licensing Board Robert Lowenstein, Esq.

U.S. Nuclear Regulatory Commission 'Lowenstein, Newman, Reis & Axelrad

'; Washingten, D.C. 20555 1025 Connecticut Avenue Wasilington, D.C. 20036 Myron M. Cherry, Esq. Mr. Steve Gadler 1-IBM Plaza 2120 Carter Avenue Chicago, IL 60511 St. Paul, Minnesota 55108 Judd L. Bacon, Esq. Atomic Safety and Licensing Appeal Consumers Power Company Appeal Panel 212 West Michigan Avenue U.S. Nuclear Regulatory Commission Jackson, MI 49201 Washington, D.C. 20555

..- z-3 R. Rex Renfrow, III,.Esq. Docketing and Service Section

' David J. Rosso, Esq. Office of the Secretary Isham, Lincoln & Beale U.S. - Nuclear Regulatory Commission One First flational Plaza Washington, D.C. 20555 Suite 4200 Chicago, Illinois 60603

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Atcmic Safety and Licensing Norton Hatlie, Esq.

Board Panel Attorney-at-Law U.S. Nuclear Regulatory Commission P.O. Box 103.

Washington, D.C. 20555 flavarre, Minnesota 55392 E h)w hnetrK. Mi11er /

The Dow Chemical Ccmpany Legal Department DATED: August -17,1977 i

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