ML19338C196
| ML19338C196 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 07/18/1977 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8008050645 | |
| Download: ML19338C196 (9) | |
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"7/18/77
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T /j UNITED STATES OF AttERICA NUCLEAR REGULATORY COMfilSSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
-IA the. Matter of-
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CO?tSUMERS-POWER C0f1PANY Docket flos.Jo-m
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50-330
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(Midland Plant,. Units'1 and 2)'
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NRC STAFF Ai!SWER TO INTERVEtiORS MOTION TO l
INTRODUCE ~ ADDITIONAL EXHIBITS l
Introduction On July 1,1977, Intervenors Other Than Dow (Intervenors) moved that the Atomic Safety and Licensing Board (Board) admit into evidence certain additional exhibits. The NRC Staff (Staff)' objects, to Intervenors' i-motion.
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Discussion The Staff raises the same general objections to the Exhibits identified in Intervenors' motion as were. raised by the S' aff regarding Intervenors' t
l Exhibits Nos. 59-77..cn the last day of the hearing', May 13, 1977, Intervenors'- counsel sought' to introduce a-large number ~of exhibits. into e'vidence. TheStaffobjectedona.numberofgrounds.E Intervenors'
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present motion is-but a continuation of Intervenors' earlier course, and U See " Staff' Objections to Intervenors' Exhibits and tiotion to Admit Evidence"'(Staff;0bjections) dated June 2, 1977, pp. 9-10.
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the same objections ' apply.
Intervenors represented that their direct 4
case would consist of the testimony of Dr. Richard J. Timm. Offering a substantial number of exhibits at the conclusion of Dr. Timm's testimony and af ter the record'has been closed is therefore clearly untimely.
In addition,-it should be noted that the exhibits were proferred by Intervenors' counsel without a sponsoring witness, so no fourdation has been laid for the admission of the documents and no opportunity has been givenforcross-examination.2/ For these reasons, the Staff generally 1
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- opposes'the admission of these exhibits into evidence.
a Intervenors suggest by their motion, that the record in this proceeding be. reopened. The burden is on Intervenors to establish why the record should be' reopened to receive the. indicated exhibits and that burden is
- substantial. Vermont Yankee Nuclear Power Corp. (Vermont.YankeeNuclear Power Station), ALAB-138, 6 AEC 520, ~ 523 (1973) and Georgia Power Co.
(Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 HPC 404 (1975).
Intervenors must establish, with regard to each..exh.ibit, a substantial reason compelling that it be admitted into evidence-after the record on the suspension proceeding has been closed. An examination of each of the Exhibits ~proferred reveals that Interver. ors have failed to meet this burden.
. 2/ The Staff does,not challenge the tuthenticity of any of the documents offered.
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. Intervenors have moved into evidence 'Intervenors' Group Exhibit No. 60A, an exhibit vclume prepared by Dow as an attachment to the "Dow Memorandum.
Regarding Hearing Preparation" filed in this proceeding on December 22, 1976.
<Thispartic01ar-volumecontainsexhibitsAthroughZ.
Intervenors have
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previously moved-into evidence ~ as Intervenors' Exhibit No. 60, the
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exhibit volume accompanying the Dow memorandum which contained exhibits' AA-through 10(.
Intervenors argue that-Exhibit No. 60A was not moved into evidence along with Exhibit'Ho. 60 through oversight. The Staff.has previous 1/ objected to the_ admission of Intervenors' Exhibit No. 60 on grounds of relevance.3/ The Staff previously argued that this exhibit i
dealt with the preparation of the Temple testimony, an issue which does not, bear on the suspension question before the~ Board. The Staff further argued that this. issue had been briefed separately in the proceeding by all parties in December,1976,. and that the Board has before it the documents that it requires.to rule on _that question. The Staff raises this same-objection to Exhibit No. 60A. The record in thi~s proceeding should not be burdened with documents' which do not bear on the suspension
-issue, i
~ 'ntervenors2have moved into evidence Intervenors' Exhibit _No. 73, pp. 6, I
7,~ and 18 lof Dow's notes of a February 24, 1976 Dow-Consumers meeting.
3f ee Staff Objections, p'p.10-11.
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. This document was attached to the Board's June 15, 1977 Memorandum. The portions of the. document that Intervenors seek admitted are clearly irrelevant to the issues before this Board..Those portions deal with
~ potential anti-trust issues. The proper forum for examination of those issues is before the Midland anti-trust board, as this Board recognized in its June 15 Memorandum.when it concluded that it did not have anti-trust jurisdiction. The irrelevance of potential anti-trust issues to the questions before this Board could not be clearer.-
Intervenors have moved into evidence Intervenors' Exhibit No. 79, an
. article concerning QA-QC matters which appeared in the May 27, 1977-
. edition of the Midla'nd Daily News. The Staff objects to this Exhibit on two grounds. The first ground.is relevance. This Board is a board of limi.ted jurisdiction which has been reconvened by the Comission to explore the' issues raised by the decision of the Court of Appeals for the District of Columbia Circuit in Aeschliman v. U.S. Iluclear Regulatory Commission, 547 F.2d 622 (D.C.'Cir., 1976). Quality assurance and quality control: issues are mot among the questions this Board is empowered to ad-
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judicate.
Intervenors' remedy, should they have ligitimate concerns in titis area,_is to seek institution of show cause proceedings under 10 CFR
'52.206.
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. Intervenors' have moved into evidence Intervenors' Exhibit flo. 30, a June 15,
'1977 interim report from Consumers Power Company concerning the Unit flo. 2
. linear plate buldge.
Intervenors niake no clear argument as to why this
- exhibit 'should be admi.tted. They state siinply that the report is of interim ~ nature and that the incident has not ber /ully evaluated. This hardly constitutes a, lucid argument as to why this particular document should be admitted into evidence, but presumably Intervenors would argue that again the document relates to quality assurance and quality control
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concerns. Again, as was the case with Intervenors' Exhibit flo. 79, these. issues are not before this Board and so the Exhibit should be rejected as irrelevant.
Intervenors have moved into evidence Intervenors' Exhibit tio. 81, compilation by Consumers of the relationship between a residential electricity bill and personal income. Again, Intervenors present no cogent argument supporting the admissibility of this' Exhibit.
It is offered "to insure that it ~is.fonnally.part of the record, and relates to demand forecasting."
In the Staff's view, this is hardly a satisfactory basis for the admission of this Exhibit into evidence.
Intervenors have # offered no explanation as' to the probative.value-of this document, on what issues this document bears,'or what 'it is offered to prove.
Failure.to. establish the probative worth of a document are grounds for its exclusion.
See the Federal Rules
- of Evidence, Rule.403 and Illinois Power Company, (Clinton Power Station, Units 1 and 2), LBP-75-59, 2 NRC 579, 587 (1975).
. Intervenors have moved into evidence Intervenors' Exhibit No. 82, the June 17, 1977 Safety Evaluation Report (SER) issued by the Staff concerning steam generator tube degradation and the continued operation of Consumers' Palisades Plant.
In the Staff's view, this document is relevant to the issue of steam generator tube degradation at the Palisades Plant. However, the document is unduly repetitive of' existing record evidence. The record i
at the suspension proceeding established the fact that derating of the Palisades Plant is a possibility in' light of steam generator tub.e degradation.
In addition, if such steam generator tube degradation were
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to be pr'olonged, an outage of the Palisades Plant for steam generator tube repairs was also a possibility.
See the Noble Testimony following Tr. 4754, specifically pp. 2-10 and.13-15.
The speculative nature of these events is also clear from the record. Mr. Noble testified at i
pp.10-13 that efforts are under way to minimize continued tube degrada-l tion and that,'while continued degradation is uncertain, Consumers is planning for it. Mr. Heins of Consumers also testified as to the un-
. certainty of continued tube' degradation and of the possibility that steam
. generator tube slec"ing could nullify the need for any outage.
(Heins, Tr.1671). :The record establishes that continued steam generator tube
' degradation at Dalisades is uncertain While the Staff's SER supports
' the proposition that the probability of continued steam generator degrada-
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tion may be reduced, the uncertain nature of the degradation problem remains.
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- On this issue..Intervenors' Exhibit No. 82 merely supplements what the record already establishes.
Intervenors ha've not met their heavy burden.
in seeking to introduce this document.at this late stage of the proceeding and the ~ Exhibit-should be. rejected as unduly repetitious.. See 10 C.F.R.
i-12.743(c).
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Conclusion For the~ reasons discussed above, the Staff urges that Intervenors' Motion l
be denied.
Res ectfully submitted,-
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chard K. Hoeflin Counsel for NRC Staff Dated at Bethesda,IMaryland this 18th day of July,1977.
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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0411SSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CONSUMERS POWER COMPANY Docket Nos. 50-329 50-330
, (Midland' Plant, Units,1 and 2)
CERTIFICATE OF-SERVICE I hereby certify that copies of "NRC STAFF ANSWER TO INTERVENORS MOTION TO INTRODUCE ADDITIONAL EXHIBITS" dated July'18, 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 18th day of July,
-1977:
l Frederic J.~ Cou'fal, Esq., Chairman Atomic Safety and Licensing Board i
U. S. Nuclear Regulatory Commission l
Washington, D. C.
20555 l
Dr. J. Venn Leeds, Jr.
Ms. Mary Sinclair Atomic: Safety and Licensing Board 5711 Summerset Street i
10807 Atwell. 77096 Midland, Michigan 48640 Houston, Texas
' Harold F. Reis, Esq.
l Dr. Emmeth A. Luebke Robert Lowenstein, Esq.
l Atomic Safety and Licensing Board Lowenstein, Newman, Reis &
U. S._ Nuclear Regulatory Commission Axelrad
- Washington. D. C.
20555-1025 Connecticut Avenue Washington, D. C.
20036 Myron M. Cherry, Esq.
1 IBM Plaza L. F. Sute, Esq.
Chicago, Illinois _60611 Dow Chemical, U.S.A.
Michigan Division ~
Judd L. Bacon, Esq.
Midland, Michigan 48640 Consumers-Power Company L212 West Michigan Avenue Mr. Steve Gadler Jackson, Michigan : 49201 2120 Carter Avenue St. Paul, Minnesota 55108 9
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' R. Rex Renfrow, III, Esq.
Atomic Safety and Licensing
. David J. Rosso, Esq..
U. S. Nuclear Regulatory Commission Appeal Panel
. Isham,! Lincoln & Beale One First National' Plaza Washington, D. C.
20555 Suite 4200 Chicago, Illino'is 260603 Docketing and Service Section Office of the Secretary
' Atomic Safety!and: lice'nsing
'U. S. Nuclear Regulatory Commission 6-Board Panel' Washington, D. C..
20555:
U. 'S. Nuclear Regulatory Commission Washington, D. C.
20555 Norton Hatlie, Esq.
. Attorney-at-Law P.' 0. Box 103
' Navarra, Minnesota' 55392 I
W/A l
Richard K. Hoefling f/
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t Counsel for flRC Staff v'
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