ML19338C021

Intervenors' Response to Util 770722 Objections to Admission Into Evidence of Certain Addl Exhibits Offered by Intervenors.Util Objections Frivolous.Proof of Svc Encl. Related Correspondence

ML19338C021
Person / Time
Site:	Midland
Issue date:	07/26/1977
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007310585
Download: ML19338C021 (6)

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fB UNITED STATES.OF AMERICA NUCLEAR REGULATORY COMMISSION

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j cp Before the Atomic Safety and Licensing Board gy ,,

In'the Matter of' p/~,ui

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) Docket Nos. 50-329

, CONSUMERS POWER COMPANY- ) 50-330

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(Midland' Plant, Units'l and 2).)

INTERVENORS' RESPONSE TO OBJECTIONS BY CONSUMERS POWER COMPANY TO THE

ADMISSION INTO EVIDENCE OF CERTAIN ADDITIONAL EXHIBITS OFFERED BY'INTERVENORS

- Consumers Power Company under date of July 22, 1977 filed a' document objecting to.certain additional Exhibits which were offered by Intervenors-in connection with the filing of their Findings. Consumers Power Company incorporates, in

, its most recent filing, its general objections to documents tendered' earlier.

We herewith show that Consumers Power Company's objections.are frivolous and are barred by the record. 1 As; Consumers admits, and as the record.shows, a stipu-lation among:all of~the parties as to both foundation and

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' t identification of-documents was entered into. This stipulation, l produced below, is:found at pages 2396 beginning at line 21, i I

Lthrough'2398,Lline 18.

It provides:

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"MR. - CHERRY : . Mr . Chairman, we are, going to run into

.a problem with the-Dow witnesses about identification of documents.- And I would just like to.know if I can.get a' stipulation from the Staff,.from'Dow- -!

. Chemical and from Consumers Power. Company that'with  !

" respect to documents produced,; pursuant to a re- j

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.q%,est thatXwereisreleased at f undaeion incaffeet.

by waived.

the-Board Iorder, am not l

80 023.16$(f alking about relevancy or privilege or anything else.

. . _ . -D "EBut' I: willf have Lan ' awful 11ot of documents that I ,'want

'. 1 'to mark. ;And a lot of them~are authored'bv Mt'.

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4 i e r:- >

' Temple-although?they'have a'l'ot of carbon t

-copiesLfor'aulot of people ~, to1go'around., -

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But)I1just'want'.to;know'if we can operate I

-under;the; assumption >thatLit is not necessary- .!

for ~ a witness from Dow to say; - yes,' that is j

" a true and. correct copy of what it purports = H to be-as a foundation for it to be admitted-

.in1 evidence,;if it-in> fact.was: produced by-

Dow and Dow's counsel;will vouch for.it.

.. . 1 And I;would agree.to.the,same.> thing.~ insofar as Consumers;is concerned, the other: way. - _l

In1other words, if-Consumers': lawyers say that i

.this is a document which was produced on dis- -1

.covery and in fact it was, I won't require '

, 'any foundation. And that will solve a whole.

lot of: problems.

Would.you agree, Mr. Wessel?

.MR. WESSEL: ' Of course, if this 1:s a stipulation of authenticity.

.t I~should-say in. response.to Dr~, Leeds'. request,-

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some offthe typing:was'done'fromLnotes, and that

was'done;-_by secretaries 1and I hope they are-n  ; correct..lThat is not'true of exhibit-25. We.

Jcan' identify.those as they appear. I would' hope l

that?there would be_a-stipulation of the authen L 'ticity of1 documents-produced byrus.

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I MR.SCHERRY:- By anyone. _ .

'Would you'agreesto that?

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MR .' HOEFLING: Yes.-

LMR.cRENFROW: Just as-the authen,ticity.

1 "MR. CHERRY: .Yes,1just authenticity. ,

So"iflI want to' introduce a letter signed by Mr. ~

. Temple and I have it marked when Mr. Temple is ,

not here,-I' won't-need=him to identify the letter.

X And I= can offer it in -evidencer is that agreed? -

. MR.lRENFROW:' Yes.

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. i MR.0 CHERRY:: Okay.

sBYlMR CHERRY:'

Q .1 Now1weshave in7effectia stipulation thisris an

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1 authentic document. And;I1would ask youkif'you would

'takeJallook at'paragraphffour-of.this document 7on

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5 page three, andfask'if you~anyone eier ,

" l informed you of the.Falahee threatithat is

'. contained-on thatlpage?.

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' ~ :MR~ CHERRY:-:Does the. Board have a copy ~of 4 -

these. documents?

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. JCHAIRMAN COUFAL:} .Yes."

.:At Tr. pages~~4710-11,< .the-Chairman 7of the Board later l clarified: the evidentiary stipulation'when there was some objec-n Etion to'the offering!of-certainiExhibits. The relevant passage

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is-:as follows:

4 y ~ "MR. CHERRY :' Well, I[do'n't know what kind-of objections the other. parties can have.

, ' 'They have?all~been1 marked and identified.

'We hadlaLstipulation on1the record by all

- of the parties that'there was to be -no i

objection with~ respect lto authenticity because'all the documents came from business records.

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[ CHAIRMAN COUFAL:~ Yes.. I! suppose.it would'

be relevancy?"

j It is~ absolutely clear;from the' stipulation that'any document produced through discovery was automatically admissible, f subject to' relevancy,yand no objection-as.to identification or foundationfis permissibleLor'was ever1 intended by the-parties. .

j- .If'oneiperuses;the most:recent rssponse.of' Consumers,

[ Ilet alone their' earlier response, the Board will find that; p_

s Consumers and  ? its attorneys are'merely going back on theirLword, ,

which:sh'ould?n'ot be ' permitted' (even though it might. be expected) .

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(Thus,-~.at.pagec6:of Consumers' response.of July 22, 1977 (and.its-fearlier2 doc,uments) ,- Consumers of fers the; objection to Exhibit 81

onfthe[ grounds: 4 i--.' "It was Jnot identified at'the hearing'[and]-

, :thereEhas-:beeni no foundation provided for 3: -

.the document;"'

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No further. argument'need'b,e made to demonstrate that the only objection remaining.to Consumers (or the other parties to the

. proceeding) is one of relevance. Neither the Staff nor Dow Chemical supports Consumers'in its position.

We now respond-briefly, from the standpoint of rele-

.vance, -to 'the objections of Consumers concerning the documents which it refers to.in its July 22, 1977 offering. We point out in passing that the " surprise" argument by consumers is a lot l

. of " baloney" since_the documents are either its own or have i been received by them sometime ago (and Consumers admits R that' discovery has been ongoing throughout the proceeding and so there is-no possible way if'that were ever a rule, that all

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documents should be marked at the. beginning of the hearing) .

Indeed all documents have not as yet been received.-

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1 Our mostirecent offerings are relevant for the following reasons:

Group Exhibit 60A. This is relevant because it deals with.-the manipulation of testimony and honesty has always been an issue in any judicial. proceeding.- Moregver, it goes to.show

-the' extent of the disagreements between Dow and Consumers.

Exhibit.78. The anti-trust' memorandum is relevant (and since it is the Board's document it can take administrative not' ice- of the- document) because an examination of the Dow-

' Consumers relationship;from!an anti-trust standpoint cou1d well

' impact.upon the cost-benefit. analysis.

Exhibit 179. ,The point about to be made about the liner plate issue is that it:is one of many things which could impact

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,on the timing'andLcost:of construction and thus is relevant.

Consumers'- assertion'that the article's accuracy cannot be tested must fall on deaf ears because the article was written

~from information supplied by Consumers.

' Exhibit 80. .The liner. plate controversey is an example of quality; assurance and quality control problems. Even assuming.arguendo that quality. assurance'and quality control are.not issues, it would be relevant because it is the kind of thing.that directly impacts upon cost and timing of construction.

Exhibit 81. Consumera admits-the relevancy of the document and even its authenticity because of.the admission "it is a compilation" by Consumers. The objection as to identification and foundation is barred by the-stipulation.and also by the fact that a party cannot deny the authenticity of its own document.

Exhibit 82.- The-NRCl Staff safety evaluation concerning

( Palisades:is a document filed by the Staff and was prepared after consultation with Consumers. It is relevant and must be admitted into evidence. Moreover, the Board does not have to blind its! eyes as to administrative. filings in the record.

-Consumers'--real objection is the' assertion that we have. incorrectly-quoted theLreport,Jan objection met simply by Board reading

.the report.

We trust we'have now put to rest Consumers' faulty Lobjections and'their' attempts to go back on the word of their V w - * +

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lawyers as to the agreement.

Resp tfu ly submitted, J

Attorn MDi Th

..or all Inter #enors l

j Dated: . July 26, 1977 except 4 Chemical ~ Company j i

MYRON M. CHERRY I One IBM Plaza, Suite 4501 Chicago, Illinois 60611 (312) 565-1177 l l

PROOF OF SERVICE .

1 I hereby certify that that "Intervenors' Response to Objections I by Consumers Power Company to the Admission into Evidence of Certain Additional Exhibits Offered by Intervenors," " Supplemental Statement of Intervenors Other than Dow Chemical Company Concerning 1 Responsive Findings and Responsive Brief of Consumers Power Company," l and a letter to the Board dated July 26, 1977 were delivered by Federal Express messenger to arrive in the Board's hands by July 27, 1977, A.M., in the office of Frederic J. Coufal, Esq., l Chairman, and that copies were mailed to Mr. C. R. Stephens, Chief, l Docketing.and Service Section, Office of the Secretary of the {

Commission, Washington, D. C., to counsel for Consumers Power l Company, the Regulatory Staff and Dow Chemical Company, pos age prepaid-and properly addressed on July 26 1977.

I f IMBi M C Cherty

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