ML19338C034
| ML19338C034 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/27/1977 |
| From: | Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19338C032 | List: |
| References | |
| NUDOCS 8007310594 | |
| Download: ML19338C034 (27) | |
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' UNITED STATES'OF' AMERICA JUti2 3 G77 >tr:;
NUCLEAR' REGULATORY COMMISSION f. r.3, y--r,
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Before the Atomic' Safety and Licensing Board NN,/
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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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INTERVENORS, RESPONSE -TO VARIOUS P.ENDING-MOTIONS.OF THE STAFF AND CONSUMERS POWER COMPANY Intervenors hereby respond, in this single document, to
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the'following pending Motions of the Staff and Consuners Power Company:
1.
Staff objections to Intervenors' Exhibits dated
, June 2,-1977; 2.
Motion and-Memorandum of Consumers Power Company objecting to Intervenors' Exhibits dated June 8, 197-7;-
3.
Consumers' Motion for admission of certain interroga-tory answers dated June 1, 1977; I
f 4.
Consumers Power, Company's Motion for the admission into evidence of certain exhibits dated June 7, 1977; and
. 5.
The: Staff's Motion with respect to certain exhibits l
. contained in their-filing of June 2, 1977.7
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~* In~a separate document we'have responded to the Motion'.of Consumers
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.and the-Staff-toLrenew their attack on'Dr. Timm's prime testimony, 7
.as well as their assertions with respect to Dr. Timm's rebuttal ~
ftestimony earlier approved by the Board.
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=1&2..Intervenors Answers to Consumers' and the Staff's Objections to
.Their Exhibits.
-Intervenors'believe that all of their Exhibits.have already been' received-bytthe Board'and~accordingly regard Consumers' and the Staff.'s Motions as' delaying tactics.
Moreover, as Consumers
-points out, all of the-parties have agreed on the record (Tr. 2398, 4710-11). that.all'of the documents produced by parties to the pro-N ceeding, pursuant-to discovery requests, are admitted to have proper foundation-and-thus can only be objected to on the basis of rele-vancy or materiality.
.This admission puts to rest almost all of L
the. objections' by: Consumers and the Staff that deal with the best l'
evidence rule or whether.the document was used in cross-examination or.whether a witness was available to testify with respect to-the document.
If a document was submitted in the discovery process and j
had proper foundation 1(supported by the admission of the parties)
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'the document.may be thereafter admitted into evidence so long as i
it is relevant. :There is no obligation to ask a witness about a
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document that is offered in evidence, there is no obligation to use I
a document.in the process of cross-examination as a condition to its admission,7and-since the document has a proper foundation, there
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Lis.no basis for a best' evidence rule.
In short, all of the objections to Intervenors' Exhibits
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t-other than relevance and; materiality are not well taken.
L 1Likewisa,Jobjection's as-to hearsay 1ar'e frivolous.
First tof al'1, hearsay'is?not a proper' objection in an.-administrative
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procedur'e. : 'But more importantly, if a-document has been produced 5 pursuant'to discovery-andEthus stipulated as to foundation, it is-6 6
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aus if the author of the document had testified to-the contents of the-document,_and-hence, hearsay does not apply.
Moreover, the document stands as an admission against the party who produced it and agreed ~it'was authentic, 'and since the document'was retained, by the person producing it, in the. ordinary-course of business, there'is no basis'at all for hearsay objections since the law has 4
always-provided for a'busines.s-record exception to'the hearsay objection.
See Federal Rules of Evidence 803 (6).
Finally, all of'Intervenors' documents, with certain
' limited exceptions, were produced by other parties to the proceeding.
These other parties had a full opportunity to rebut any of the-information contained in their documents and thus there is no ground for the hearsay objection.
See Federal Rules of Evidence 803 (24).
- Because all the objections except-relevancy and materiality are not well taken and^because the documents which Intervenors introduced serve as admissions were business records produced by the parties z* fWe cite the Federal Rules of Evidence as an indication of eviden-1 tiary rules to the Board.. However, restrictions in the Federal Rules of Evidence 2cn.the admissibility of evidence are not necessarily' binding on the Board, since this is an administrative proceeding where the' Board has broad powers of investigation s
to determine ultimate facts.
Thus, in safety and environmental circumstances, iff Consumers and i he~ Staff object to information t
on the grounds. that _it is " hearsay," it does not further the in-
- quiry unless Consumers and-the Staff are in the position to provide what they'believe isL"more reliable" information.
But an adminis-
.trativeLagency cannot be told by a utility or the Staff that a
~ document 1it maintains in the ordinary course'of business and as to
-which itLagrees there exists'a proper-foundation is to be barred because'they'have a different view -
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'which are properly admissible,;we-confine. our response to rele-vancy and materiality.
Our responses are Exhibit by Exhibit, and we are handling Consumers' and the Staff's responses jointly:
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' Midland Intervenors' Exhibit 3.(there are no Exhibits 1 and 2).
Both the Staff and. Consumers object to this Exhibit on-grounds of relevancy.
Intervenors. offer the Exhibit to show in part the development of the evolution of the deterioration
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of the'Dow-Consumers relationship.
The Court of Appeals remanded'this-case to reconsider changed circumstances in the Dow-Consumers relationship other than those which existed at the close'of the previous record in-1973.
Accordingly; the document is most relevant.
In addition, the document 1
is important on the intent of Consumers on quality assurance matters - (see p. - 2) 'and on Consumers' overall lack of candor in this proceeding.- Thus, at p.
4 of M.I.
Exhibit 3, Con-sumers' lawyer is quoted as stating:
" Consumers' legal opinion is that any decision to-delay the Midland-plant decisionis'not harmful.
They feel the-more of the plant that
-is built the less (likely it becomes that it will be stopped."-
Thus, the Exhibit lis important for the admission plus, again, the overall: lack of concern by Consumers (in this Exhibit about regulation'by the NRC or the. Staff (compare M.I. Exhibit 25).
The Exhibit is.also important in terms:of load growth statistics and it' records that Dow Chemical believed that a 5% growth
= rate was too.high because.of industry slowdown in Michigan l
.(see M.I.-Exhibit 3 at p.'8)..-
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Midland Intervenors' Exhibit 4.
This document-was created for housekeeping purposes and need not be admitted into evidence.
Midland-Intervenors' Exhibit 5.
This document is' relevant to the development of the Dow-Consumers'~ battle.
It is further relevant because it shows Consumers. Power Company made determinations, which it believed in its own interest, not to speed up the availability of steam to'Dow.- It thus.shows that Consumers did not regard the Dow 4
contract as overall important and that Consumers was not con-cerned with Dow's 1980 clean air problems.
That the alternative 4
was available and rejected by Consumers is relevant to the overall cost-benefit analysis'and the future status'of the Midland proceeding.
Midland'Intervenors' Exhibit 6.
This document is relevant because it goes to the dispute between the parties concerning a final date for the. contract, a dispute which still exists.
The document is not repetitive-
.l as the' Staff asserts and Consumers' objection is a red herring.
j Since the document is a letter from Dow to-Consumers-and its foundation was~ admitted,71ts accuracy can only'be disputed by evidence'outside.the document and is not a condition to its admission.
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-Midland Intervenors' Exhibit 7.
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LThis document is relevant to;the development of the current Ldispute between Dow and Consumers.
Both Consumers and the Staff
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state ' tha@ it :should ' not.be admitted because it is t a position Las of March' 4;'1976.
This is a-ridiculous statement since tif-an; admission gained-in aLdocument'could'be changed by having.
the~partieslwho wrotefthe origina1' document merely write another1 document,-people could lie;and get.away with it-merely by changing their positions in writing. :The document is important to test.the currcnt pious statements of Consumers and:Dow, andfin fact,'refersLto (on p. 2) " threats of litiga-tion," which'is an ongoing prcblem among the parties.
Midland Intervenors' Exhibit 8.
-There are no objections to the admission of this docu-ment.
. Midland Intervenors' Exhibit 9.
The Staff-does not object;to this document, but Consumers-does.
However, the document was produced by Consumers and
.thus, its foundation is undisputed.
There is no need to tie a document to a.particular witness when foundation is admitted-and'there is certainly no: obligation, as we. pointed out above,
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-to ask any questions;about a-document that.is otherwise ad-
- mis sibl'e. 1 Consumers /does-not object to the: document on the grounds offrelevance,and'it is clear that the meeting of-i September :24,.1976 ;at Dow-;in. fcct tock place.
The objection sis frivolous..
Midland Intervenors Exhibit 10..
- This'ista" document producediby Consumers:and Consumers s
Jdoesi ot object;.lThe: Staff objects.on the.l ground of relevance, n
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_ 2 bht:this is'.; clearly frivolous since M.I.
Exhibit 10 was used-
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~ as a basis for:.the Timm; calculations.
~ Mid' land -Int ervenors ' ~ Exhibit.11.
i This is a: document?producedfby Consumers who does not object-s Y
1 L tofits" admission.. -The Stafffobjects on the-grounds that Mr.
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~Bickel'was:not asked any; questions about it.
This is frivolous
- because there i
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a document"as-to its admissibility.
In any. event, the document-forms a' basis for Dr. Timm's-. calculations, t
-Midland Intervenors Exhibits 12Jthrough 20.
No one objec.ts to admission of these Exhibits.
Midland Intervenors' Exhibit 21.
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1The Staff does.not object to this document, but Consumers i.
'does..
The document was produced by Consumers: Power Company.in-4 1
connection-withfprojectL7613 and was prepared'by. Consumers
-Rate _ Research ~-Department;- The1first'page'of--the document re-l L
f cords that it was a'respouse by General Mot' ors to a Consumers Power Company survey on_ conservation and need for power.
It-is ' critically relevant to the-overall need'for power-question-U and the, fact'that Mr'. Bickel had never se(en it before only adds i
to the' deterioration of--his. testimony.
- Moreover, M.I.' Exhibit 21 was used by Dr.sTimmt 'Since the-document was prepared by H
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- of business,jthere
- -isi no_ basis for a' hearsay' objection.
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Consumers Power; Company disputed'the: veracity of what General Motors told Consumers Power, l't could have1 produced a GM witness,'which it did not.
In fact,LConsumers' offer of proof-
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was merely a' statement of counsel.
Midland Intervenors' Exhibit 22.
Consumers-does not object to this document, but the Staff does.
The Staff states.that the author of-the docament>is not
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available fo'r cross-examination.
This is a frivolous ~objec-
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tion since the document:was produced by Censumers and under
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i stipulation,Lthe document has foundation.
Moreover, the Staff could-have asked for-production of the author of the document, but'it. refused to do so.
The recipient of the document, W. J.
Mosley, in~ fact did testify and'due-Staff could have asked questions of Mr.--Mosley.-if-it chose..As.with other of.the Staff' objections,lthey just don't like the import of the evidence and that 'is the' real basis of ~ their objection.
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Midland Intervenors' Exhibit 23.
The Staff does not object to this document, although Con-sumers-d'oes.
The' document shows on its face that it was prepared by-Dow Chemical. Company pursuant to an oral request-
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and Mr. Temple-and other'Dow witnesses were available for cross-examination:if Consumers or the Staff-wished to examine.them.
Tnis: information represents - a Dow' position and -has been.used-
~byfDr. Timm inithe-proceeding.
The objection'is frivolous.
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Midland Intervenors' Exhibit 24..
This is a document-which~is relevant to the Dow position
~ versus : Consumers Power' Company and is Lmportant to support the belief that Dow'has no confidence in Consumers Power Company's; management.
Moreover,Lthe document was subject _to I
intensive examination.
Tne Staff's statement that the document represents _ the personal views of Mr. Temple is silly in the extreme.
The corporation only has vi'ews through its personali-o i
ties who areLits officers.
Mr. Temple's position on this i
proceeding-is critical.and despite-claLms that Mr. Temple did not speak for Dow, when Mr. Orrefice testified, he-approved, on. behalf of Dow, everything than Temple had said.
Midle tervenors' Exh * ~ ' t 25.
Tt is not; surprising taat'all of'the damaging documents are objected to by,the Staff and Consumers.
Consumers essen-tially-argues that-there is no foundation for the document.
-l However, the document was produced pursuant to discovery and thus, foundation does exist.-
Consumers Power Company had an opportunity to-rebut.'these statements and refused to do so.
The: document is particularly interesting.since it_ records Con-t
.sumers' viewpoints as to issuesfin the proceedinguand, of-course, records at~pc 2 of the document that Consumers really.doesn't care.about regulation by'the Staff and the Board,'but was-only-concerned'about.Intervenor representation, without which', they
.would be_able to manipulate and-hide the truth.
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- the document records threat to Dow which, Mr. Orrefice and
'Mr.-Temple testified, led to the Dow corporate position.
2 What is interesting is thatithe Staff objects to the document l
and-further underscores the -fact that tdun Staff's p.irtici-3-
.pation in this procee' ding has been disingenuous and that
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- the Staff-will:do anything, whether honest or not, to assist i
Consumers' Power in/condinuing construction of the Midland' plant..
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. Midland Intervenors' Exhibit 26.
1 There are no objections to the admission of this document.
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Midland;Intervenors' Exhibit 27.
The. Staff objects on the grounds of cumulativeness but not relevancy.
Consumers objects on the grounds of inadmissible =
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. hearsay.
The document-clearly shows the' nature of the back-ground of the beginning of the manipulation of the Dow/ Temple I
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' testimony and therefore, is very-relevant to the truth of
, the statements madefby: Consumers' witnesses.
The document re-cords the meeting'among' Consumers and Dow and the meeting notes
. were'kapt;by.Dow'in.the ordinary course of business (as were meeting notes of all of the parties) and'was produced pursuant
,to discovery.- 'Accordingly,1there is~ foundation.
What Consumers ldoes:not:like~.is-Dow's; version of'the meeting, yet Consumers
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.declinedjto produce affirmately Mr. Aymond.or Mr. Youngdahl_on the grounds thatyConsumers didn't want Aymond and Youngdahl to Ltestify.
Since these documents, as well as.others,-show that
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lAymond.and' Youngdahl made threats to Dow Chemical Company,,
'Consumersfis' attempting:to keep;the information out of the record in1 order:to neutralize the impact of these and other
! documents whi'ch showLthe lack of candor by consumers and its principal-officers.
Since the document was produced pursuant'to discovery and represents notes of Dow kept in the-ordinary. course of business, it is relevant and~ admissible.
Midland Intervenors' Exhibit'28.
This document is relevant because it shows Consumers' concern.over'a lawsuit by Dow which, of course, has an tmpact
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on the' Dow-Consumers' relationship.
It is offered for that
' admission as'part of the evolution of the Dow-Consumers 4
changed circumstances which this hearing dealt with at length.
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'Since ittis' admissible, there is no ' claim other evidence-is "better" than the ' document.
The best, evidence rule does not
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apply;to distinctions between oral and-documentary evidence.
l The best. evidence rule only deals with the original of a docu-ment,as opposed.to a copy of a document.
If the best evidence sn21e' in ;effect ~ stated-that you could not use documentary evidence;unless you..also used oral evidence and that you could i
not'use-documentary evidence unless it was consistent with oral
. evidence,ythen there1would be no value in using documents for impeachment purposes.
Consumers'.and the. Staff's. objections to
'M.I.? Exhibit.28.are frivolous.
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- Midland Intervenors' Exhibit-29.
- The. Staff,does'not object to this ' document, but Consumers D,'
,(does. LThisJdocument wasiproduced by' Consumers Power Company, O'
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was maintained in the ordinary course of' business, and there-
. fore covered by_the. stipulation on foundation.
It is a document regarding a Dow meeting in September, 1976 and is relevant to the. evolution of the Dow-Consumers fight.
Con-sumers does not object-to the whole' document, only that part 3
talking about the Midland Division recommendation.
Since we have' argued that Mr. Orrefice has adopted on behalf of Dow Corporate. Group the Midland position (and would.have implemented
.it save for the threat of, litigation), Consumers' objections
.are really arguments on fact and the document must be admitted.
In fact, the document also correlates with Board Exhibits 1 and 2.
Midland Intervenors' Exhibits 30-36.
There are no objections to these documents.
Midland Intervenors' Exhibit 37.
This is a document produced by Consumers and is not objected i
to by Consumers.- The Staff objects on the grounds that it
" confuses the record" citing cross-examination of Dr. Timm.
However, the Staff's argument is o'nly that, arguing on what l
the document means and its interpretation.
That is not an objection to admissibility.
Dr. Timm used this document in j
connection with his testimony and itis highly relevent to demonstrate-the manipulation of computer data and forced pur-chases _ (labeled-purchase.10) which, of course,.is a critical
-issue in the. proceedings..
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Midland Intervenors' Exhibits 38-40.
There are no. objections to the admission of these documents.
Midland-Intervenors' Exhibits 41-45.
Both the Staff and Consumers object to these document's.
We offered these documents in order to show the kind of energy forecast analysis _that can and should be made in complicated
. cases.
We offered these documents to show the detailed kind of preparation work which'is. import?.nt in complicceed cases and which could have been done had the Staff been interested
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in anything but whitewashing Consumers' position.
We do not offer these documents for the truth of the documents insofar as the energy picture in Oregon is concerned, ~ but' solely for the purpose of showing-that a good job and analysis can be done if people take their job seriously.
The documents were also offered in connection with the expertise of Dr. Timm, who testified on direct and redirect that he was the principal author.of the documents and in charge of those persons who assisted in-their' preparation.
We believe that these documents j
should be admitted for these limited purposes.
Moreover, the
. documents'were requested by the Staff and Consumers Power
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Company in.the discovery process.- As such,.their foundation is demonstrated by the stipulation which covers all documents which are requested in the discovery process.
Midland Intervenors'-Exhibits 46-47.
There has beea some confusion in the markings of Exhibits.
There'.is1a newspaper article which appears as'M.I. Exhibit 46
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and an additional. newspaper article which appears as M.I.
-Exhibit 47.
Both the Staff and Consumers object to these.
documents.
We believe they are properly admissible in that they record announcements of Consumers Power Company for rate' increases.
Since Consumern Power Company releases in-formation to the press with the intention that it be printed and_ relied _upon by people, and since there is no dispute that the newspaper articles are in fact accurate, and in fact they comport with other evidence, they should be admitted.
Also marked as Midland Intervenors' Exhibit 46 is a document produced by Dr. Timm and prepared by him in connection with his testimony.
It is called " Cost of Alternatives," and it has already been received by the-Board since it is highly l
relevant.
i Similarly, there is a document entitled 46-R which has already been received by the Board and it is a revision of Exhibit 146 which deals-with cost of alternatives.
The Staff objects on the grounds that it has not received M.I. Exhibit 46-R, but this-is not true.
However, to avoid any _ further argument with the Staff, we are sending them a copy of Exhibit 46-R, along with'our response to the pending Motions.
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Midland Intervenors' Exhibit 48.
l This is:the letter which~summarises the direct discovery of Dr.-Timm, which Consumera Power Company had in'early Feb-ruary of 1977.. We.believe t."e document is important.from an l,
- evidentiary standpoint to show that-Consumers had access to e
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to:Dr. Timm:for:several months in advance of Consumers' cross-examination.
The same is also.true of the-Regulatory Staff.
While the document need not be received in evidence, we believe it is an important background to.show that notwithstanding the Staff and Consumers had total access for a long time to Dr. Timm,Ethey-were unable to depreciate any significant portions
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of his testimony.
e Midland Intervenors' Exhibit 49.-
This is'a'd'cument prepared by.a Consumers' witness re-o porting information sent to-the Regulatory Staff. We believe that this document'is highly relevant because it shows the manner and method by which the Regulatory Staff prepared its presen-tation in this proceeding.
As of the date of M.I. Exhibit 49, 1
it is clear'that the Staff had no information, but nonetheless:
had taken the public position in support of Consumers' license.
Moreover, the information submitted to the Staff in M.I. Exhibit 491shows that the Regulatory' Staff was not interested in.per-forming a' detailed, on-the-spot review, but merely asked Consumers Power Company for various information.
-That document'is critic'al and highly relevant to the manner
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and method-by which the Regulatory Staff failed to perform its
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responsibilityLin this proceeding.
Mid'!And Intervenors' Exhibits 50-57.
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There are'no" objections to these documents.
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M'idland Intervenors' Exhibit 58.,
This ; document -is,a workpaper -which was produced st the re-I quest of: Consumers Power Company, but it~is not being offered-i
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into evidence.~-
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-Midland Intervenors'tExhibits 59-77.
'Both Consumers and the Staff make general objection to 1
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' M.I. Exhibits 59-77 on the~ grounds that they. were offered late i.'
in~the proceeding.
However, there is absolutely no proscription l
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as to theItimeliness of'the offer of2 documents in connection with a caseflike.-this. ~These documents were all produced 1
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either by the' Staff or Consumers-Power. Company and because.of the earlier agreement that-they could be admitted for founda-:
l tional purposes; (so.long as they were relevant), Consumers.
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~and.the Staff were,on notice that any of these documents 2.
i could'be admitted.,More. importantly, all.of these documents
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were offered at a time when-Consumers and the Staff.had an-i opportunity to present1 rebuttal evidence.. Thus,,since the i-Board'ruledithat:the last'rcund of-testimony would be written i
a' fin'n'ture,$both Consumers andLthe Staff had at'least seven Ldays (f.he time from ~ end of the l hearing to the filing of re-l'
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- buttal) to. deal 1with Ldocuments which have been marked 'M.I.
-l Exhibits 59-77.. Consumers and the. Staff, of course, did not N
V avail 'themselves :of ;that opportunity,. but that the opportunitiy
- existed:rejectsfanyinotion:o'f prejudice.
u Moreover,{both Consumers andathe' Staff have recently filed 3
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^ a Motion to admit: documents and therefore,:cannot h' ave their cake and: eat.it;too,' since..some;of hhe documents'which Consumers
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Land (the(Staffnow: offer:weredocuments--whichwere; produced v
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or markeditoward the' tail end of the hearing.
4-To.the ' extent t! hat Consumers and the Staff have specific objection to this group _ofLExhibits we handle them below,
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although we_-note that the overall general timeliness;objec-tion has no merit.
M.I. Exhibit-59 is relevant because it deals with the cancellation of a nuclear power plant because of a reduction in power.
M.I.
Exhibit 60, which is a group Exhibit,.shows the t
development of the manipulation of~the Dow testimony and as such is highly and_ critically important.
Contrary to o
Consumers' protestations, the preparation of the Dow i
J testimeny isLan issue.in this proceeding and the Board i
has that'very' issue under consideration, on its own Motion, for: sanctions against Consumers and their lawyers for willful. manipulation-of testimony.
t M.I. Exhibit 61.~
We believe tlutt the Board should take' 4
I judicial notice of the President's energy policy and whether the: Board does so by taking notice of M.I. Exhibit-61 or the President's formal energy policy makes no difference q
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to us,.so_long as~theiimportant energy conservation prin-
- ciples which;.are now national policy ~are considered by-
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' the Board in connection:with.this deliberation.
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- M.I. Exhibit 62'is highly relevant and is not objected i
toL by. consumers'or the_ Staff,.although the Staff says it 4
~is?not the-best-evidence. :What we offer this for is an 1 admission 1by Co'nsumers ~ Power ' Company ~ as. to : the various lengths' titIlias/goneH to te hide the: truthLabout cost increases and -
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to1 underscore the fact that' Consumers is more interested
- in' media. manipulation than nuclearfsafety.
But,_of course,
- that has always been true.
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' M.I. Exhibit 63.- This document is not objecte'd to
.specifically by Consumers, but the-Staff' argues that it is not-the'best ev'idence.
That is a frivolous objection since this letter is part of the continuing negotiations between c.
Consumers-and' Dow Chemical.
Moreover, it refers to many of-the issues that are ou.tstanding and the fact that Consumers 4
is in so much trouble that it'is asking Dow Chemical for a f
loan of millions of dollars to bail it out.
This, of course, I
bears upon the overall ability of Consumers to finance the Midland. nuclear power plant.
M.I.
Exhibit 64 receives weak opposition from Consumers
.and:the' Staff.- The document has foundation used by Dow during' discovery, but it is a documentJthat is also important since it'" records once again Consumers' threats and unders scores the fact that.the economic viability of the Midland t-
- ' nuclear. project is in substantial doubt.
It serves as an
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important< admission..
M.I. Exhibit 65.; This-document was' produced by Consumers-i LPower Companyland-bears identification number G12-196.
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such,11t.has appropriate foundation.
The document is also relevantLbecause?it-indicates.that Dow has been considering
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ireducing its ' commitment to the ~ Midland. nuclear power plant' i
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- both:foristeam:a's-well as electricity, notwithstanding Dow's.
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disinclination"tojrely upon Consumers as a company at all.
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' M. I '.N Exhibit 66.-.This document is important to sbow the
-outstandinguissues between Dow and Consumers.
Consumers argues
..that it doesinot relate to Dow's " current intentions."
But
' current intentions'are to be-evolved not from simplistic statements, but through history of; correspondence between the parties'.L. 'The document?is-highly relevant _to the evolution of that and the outstanding ~ issues.
~
-c M.I. Exhibit 67 and 68..
These are documents which represent meetings. between' Dow 'and' Consumers personnel.: They are highly relevant'since'both sides to.a negotiatingtprocess maintain notes in the ordinary course-of. business and pa'rties to this l
L proceeding.were:present at those meetings.--These documents l
- areLhighly damaging to Consumers Power Company and underscore L
the, lack-of review-by: the Staff in the pre-hearing discovery procedures.
The documents;are, of course,' relevant to the over-
.all' dispute and extremely important to show the unvarnished tview of.the parties.
For example,~M.I. Exhibit 67, p. 1, shows that Consumers is very concerned about.the'Dow contract and-that they are concerned that " Cherry" may get: construction stopped, once -
again indicating Consumers'. total. lack of regard.to the NRC L
fproceedings..In addition, M.I._Exhib'it 67 at,p. 4.contains
.an admission by Consumers:
...that' conditions'and needs are different I
today and'all issuesfhave to'be re-resolved-
~in thatflight."
which totally. undercuts the statements of Consumers' lawyers Emade[to'the.BoardLtimeland' time.again..Thus, not'onlyJdoes
]
this. document:zshow:the evolution:of_the negotiating process,
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. and ;show' the concern ~ that Consumers had -for Intervenors, it
-also shows that Consumers' legal arguments to the. Board were disingenuous in connection.with their real:and' secret position.-
See also;M.I. Exh'ibit'67 at pp.'5 and following, which are statemen'ts that show-.that Consumers ' positions - before this
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1 Board-have been nothing but manipulations.
Similarly, a' review of M.I. Exhibit 68 shows the impor-tanne of discovery'to ferret out-the real an'd underlying position of the utility.. Moreover, M.I. Exhibit 68 at p. 21 also supports Intervenors' position ~about quall'ty assurance and quality control.. In fact, at that page the memorandum discloses:
"The NRC is concerned about the trend of
-rapid. [QA-QC] problem.
The NRC' feels' this is a very important [ adverse] trend that Consumers hasn't handled very well."
]
What.this document shows (among other ~ things) is that the Regulatory Staff.is permitting:a nuclear power plant to be built when_ it is on' record that Consumers doesn't know what it'is doing-in connection with quality assurance and quality control.-
See Also M.I. Exhibit 67 on.p. 7 wherein.there is an ad-L
~ mission by Consumers that the. costs of the plant overall can Lbe seriously And adversely affected by'..the resolution'or non-
- resolution of outstanding l safety problems.such as!the ACRS
- problems.:.Accordingly, the document.is also' relevant to show
.the enormous' problems. remaining to be', solved and-analyzed in a fair methodJat the remanded ~ hearings:withoutfconstruction going: forward.
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M.I.
Exhibit 69..
This i~s a document produced by Consumers Power Company.
It ' is important _ to. 'show ' the attitude of Con-
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sumers Power Company in negotiating with Dow, the fact that Consumers Power Company has and continues to have financial problems _and the fact that Mr. Youngdahl is not at all' concerned with energy conservation as a social endeavor, and destroys JHr. Youngdahl's. objectivity.
See M.I. Exhibit 69.at p.
2 and c
compare the'Mosley statements on probability encoding.
Mr.
Mosley stated that' members of the encoding team had to be.
^
objective and that the. lack of objectivity would affect the process.
Mr. Youngdahl was a_ member of the encoding team and' 4
M.' I. Exhibit 69 indicates the extent of his lack of objectivity.
M.I.
Exhibit 70.
This document is not objected to by Consumers,.but the Staff objects on the grounds of best evi-dence.
We believe this document is important to show the change in circumstances between Dow and-Consumers since 1973' and' s9ts forth Dow's view that Consumers and the relationship has become a burden.
See M.I.-Exhibit 70_at p.
2.
The document is also important to show that'none oflthe things since December 1975 have changed very much, but have gotten worse.
For_ example,
. Consumers is viewed by_Dow today as an extortionist.. Consumers still has financial problems.. The results at Palisades con-tinue'.to be' poor and the cost of the Midland project has_ escalated.
LM.I. Exhibit 70lis, therefore,_very important in connection
?with the believability'of various-positions whether they be
'Dow, Consumers or the-Staff.
In fact,1 it is documents like M.I.
Exhibitf70 which demonstrate'that theLul'timate position and the f
manner in which it fis: stated by. Dow -(see Dow's draf t Findings)L L i~s still as a resuls'of continuation of the threat _by. consumers.
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M.' I. Exhibit 71.
This document prepared' by one of Con-sumers' ' lawyers is important not only in connection with the manipulation of.the:Dow testimony, but also for.the admission by Consumers lthat'the Court offAppeals case required an overall new cost-benefit analysis.
As M.I. Exhibit 71 at p.
2 at the bottomzshows, Consumers' lawyers privately admitted:
"Old FES base is.gone.
Whole new case.
Have to.re-do."
Thus,.the-document is important for the' admission by Consumers.
-that an entire new cost-benefit analysis has to be done, which, ofLeourse, supports suspension during the remanded proceedings.
M.I.' Exhibit.72.-
M.I. Exhibit 72 i's important to show the evolution of the Dow-Consumers dispute.
That is critically important because 1975 was the year when Dow began to lose con-fidence.in Consumers and hasn't changed.
These historical documents are very important because they place in context the threats by' Consumers Power Company and the evolution.of the " corporate"' position.
Thusl,.these documents show that it isn't believable.that Dow Chemical would continue in'the' con-
- tract with Consumers if it had any other option, as Mr. Orrefice testified. :Certainly, because the contract was entered into i
and Consumers. threatens to sue, is no^a reason'for NEPA or the
= Nuclear Regulatory Commissicn to approve a $2 billion boondoggle.
M.I. Exhibit 7'3 is'important to show that Consumers Pcwer Company.- prepared dae original. Temple. testimony in support of the.'claiSs that that' testimony was manipulated.-
.M.I.I Exhibit'74.; -This-document is important_not;only for.
the background negotiations between Dow and consumers,-but also for otherJreasons.
.The bottom.of p. 1 of the document-shows n.-
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. Consumers' admission that nuclear. costs.are going up.
At p.-2'of this document, Consumers refers to the ten-year re-
_quirements contract which they wish from.Dow, which goes to
'further problems of negotiations, but also shows-the evidence of lthe anti-trust violatien which the Board recently referred to;the Appeal Board. - While:the anti-trust violation does not get analyzed in these prpceedings, this~ document should be y
admitted'to show the.possible. existence.of that violation as a further ground for suspension during the remanded hearing.
M.~ I. Exhibit 75.
This document is not objected to by Consumers, but by the Staff only on the grounds of relevance.
once again, this document is introduced to show the evolution l
of the Temple testimony in' support of the argument that it L
j, was. manipulated.
l M.I.
Exhibit 76.
This document is objected to by the Staff and Consumers on the grounds of relevance.
i.
The document must be-admissible on.the grounds that there
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are severe quality. assurance-quality control problems and l-thisLis but one example..
In our draft-Findings, we will show more of these examples.
While the Court of Appeals did not remand the situation _specifically to conyider quality assurance i
and quality; control, Intervenors have given notice of their
- intention to seek to. reopen these matters oat the remanded hearing.
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.Neither the:-Board nor the Regulatory Staf f can ignore the qualityEassuranceland quality. control problems as an event
.which could slow down construction and increase costs, thereby militating against. continuing construction during-the remanded
.: hearing.
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M.I.
Exhibit 77.
This is a group of documents to show the preparation of the Temple ' testimony and its manipulation 1 T
by Consumers Power Company.
However, the firs't four pages of this. group of documents are the meeting notes by Mr. Aymond at the September 1976 meeting where Consumers threatened Dow 4
with blackmail and admitted thEt~ Consumers believes it has a slim chance.of proceeding. forward in these suspension cases.
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1 This concludes our response to the Staff's and Consumers' objections to Midland Intervenors' Exhibits and we now proceed forward
-with the next portion'of our response.
I 3.
Midland Intervenors' Response to Consumers' Juna.1, 1977 Motion for the Admission of_Certain Interroga-tory Answers.:
Midland Intervenors have no objection to the introduction into evidence of. interrogatory answers by Dow Chemical.
Midland'Intervenors, however, do object to Consumers Power Company offering its own interrogatory answers in evidence.
These.
1 are self-serving and Consumers Power Company is not in a position to offer its cnni position' into _' evidence through the use of interroga-tories., Moreover, Consumers Power Company doesinot submit all of
.q its interrogatories, b'ut_just'a portion.
1Accordingly, Mi'. land'Intervenors do notLobject to Consumers offering Dow'sjinterrogatory answers, but do object:to Consumers'
' offer.of their own answers.
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4 4.
Midland Intervenors' Answers to Consumers' Motion of June 7,-
1977_for the Admission of Certain Exhibits.
'In its Motion, Consumers Power Company moves for the introduction of various documents marked:as Exhibits 28, 29, 33, 35, 54-55, 56, 57, 58,-59,260, and Board ~ Exhibits 3 and 4.
Midland Intervenors have no' objections to these documents-except they believe-that Board Exhibits 1 and 2 should be admitted along with Exhibits 3 and 4.
In any event, Midland Intervenors' will offer and hereby do' offer Board Exhibits 1 and 2.
Of.these Exhibits, the only Exhibit. which we would o'bject l
j to gs. Consumers' Exhibit 33 which we believe is a self-serving and I
inaccurate statement concerning outstanding ACRS problems.
l Accordingly, we have no objection to Consumers' Exhibits
[
.except. Exhibit 33 and also request that the Board admit Exhibits 1 l
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and 2.
l We_might' say in passing that while there are many-reasons l
l why these Exhibits are not entirely accurate and should not be ad-l l
mitted into evidence, we believe that the Board should make its Edecision based on totality.of information which.the parties want to i
introduce.. We do not believe any of the documents Consumers offers i
will help them any and we ask the Board to understand our willingness l
L not1to object to Consumers' offerings in light of our position that u
Midland Intervenors' Exhibits ~ (which have been frivolously objected p
-to by Consumers and.the Staff)' also be admitted.
.The/BoardLwill~not's that almost all of the Exhibits are documents that.were produced by Consumers or the Staff.
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i zThus, admissions.in these. documents 1 (and.particularly in those' called to the Board's1 attention ~in'our' answers to Cons'umers'
~ and tihe' Staff's objections) - are highly significant and important in the' context'of~the Board's suspension proceeding.
5.
Midland Intervenors' Response to
'The: Staff's Motion with Respect to Exhibits Contained ~in.Their Filing of June 2,'~1977..
.c Midland Intervenors have one objection to the Staff. Exhibits which'they wish o'ffere'd,.but'no objection-to interrogatories offered, r
~
Midland Intervenors,'however, do object to any consideration-by the~Bo.ard of Staff-Exhibit ~9.,
While obviously the document ca'n be marked;for identification, the document cannot be introduced into evidence.
It iscnot a. document which was requested by Inter-venors;during the discovery, but is a document which the Staff wishes to introduce for affirmative testimony.
The document is.a self-serving speech by William R. Voigt,
-Jr. of ERDA, April 25, 1977,:given to the Atomic Industrial Forum.
The document was not prepared by the Staff and.Intervenors have no
~
way to test the; truth or. veracity of.the contents'of-the document.
p We'do'not believe that;the-foundation agreement which covered'docu-ments kept in'the' ordinary course of' business,of the parties intro-
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ducedtby: discovery covers-Staff Exhibit-9.
Accordingly, Staff Exhibit 9 cannot be introduced in evidence.
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WHEREFORE, Midland:Intervenors; request the. Board take action 4
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3 on Exhibits as set forth in this combined response.
Respectfully submitted, Ah WT
//
One 'of' $~e Attorneys for Intervcnors Dated:
June 27, 1977' other.th'n Dow Chemical Company MYRON.M.' CHERRY One IBM Plaza q
Suite 4501 Chicago,. Illinois 60611 (312) 565-1177 CERTIFICATE OF SERVICE I hereby certify. that a copy of the ' foregoing INTERVENORS' RESPONSES TO VARIOUS PENDING MOTIONS OF THE STAFF was served upon members of the: Licensing Board, the Docket;ag and Services Section of the Office of the. Secretary of the _ Commission, and cc ansel for Consumers Power Company, Dow Chemical Company, and the NRC Staff, by postage prepaid,
- properly addressed mail, before the close of business on this 27th day.of June, 1977.
I Y
/
/ P&ron M.
Cherry i-s
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