ML19344A075
| ML19344A075 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/15/1979 |
| From: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007290947 | |
| Download: ML19344A075 (5) | |
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6/15/79 UNITED STATES OF AMERICA g
g NUCLEAR REGULATORY COMMISSION N
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BEFORE THE ATOMIC ' SAFETY AND LICENSING BOARD s
5 JUN131979 >,I
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9 h og3.mg /g In the Matter of s.
CONSUMERS POWER COMPANY Docket Nos. 50-329 50-330
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(Midland Plant, Units 1 and 2)
(Remand Proceeding) f NRC STAFF RESPONSE IN OPPOSITION TO CONSUMERS MOTION FOR
SUMMARY
DISPOSITION On March 30, 1979, Consumers Power Company filed a Motion for Summary Disposition concerning the matters set forth in Part II of the Licensing Board's Order Concerning Remanded Issues, dated January 4,1979. That portion of the Board's Order concerned the charges relating to the conduct of Consumers and its counsel in the construction permit suspension proceeding which the Board was directed by the Comission and Appeal Board to air and resolve whether or not the parties were themselves interested in pursuing the matter.
(Unpublished Order dated November 6,1978). On April 19, 1979, the NRC Staff filed a response oppo' ' i that Motion as premature.
In its Order dated May 3,1979, this Board deferre ruling on Consumers Motion until after completion of discovery 'and allowed the Staff and other parties unti. June 15, 1979 to file whatever response they deemed appropriate.
The NRC Staff continues to oppose the motion.
The, Comission's. Rules of Practice (10 C.F.R. s2.749) permit the filing of motions for summary disposition concerning material facts as to which there 8007290 4 457 O-
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m is no genuine issue to be heard. This Licensing Board has repeatedly stated' 3
- (most recently during today's ll'A.M. conference call) that it had not,:as 7
yet, preferred any charges.
Rather, the forthcoming hearings are for the purpose of conducting an'in-depth on-the-record hearing into the issues identified in the Board's May 3 and June 12 Orders.- Since no charges are as yet
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identified and placed 4 issue, it is most difficult to determine whether the facts, as identified by Consumers, are disputed, much less material.
For this reason alone, ruling on Consumers' motion at this point would be premature.
i With the foregoing caveat in mind, the NRC Staff has no substantial disagreement 4
with the facts stated by Consumers in paragraphs 1-10,13-15,18, 20-22, and 25-27. The NRC Staff does take issue, however, with certain aspects of the remainder of Consumers' statement of Acts as to which it contends there is no material issue.
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In paragraphs 11,12 and 19, Consumers indicates that Consumers' attorneys at i
no time suggested tendering witnesses at the suspension hearings who did not have knowledge of Dow's Michigan Division position on the Dow-Consumers steam contract. The depositions of Mr. Nute (Tr.132) and Mr. Hanes (Tr.15, 44 and 64) put this statement in issue.
In paragraph.17, the decision of the Dow U.S.A. board is characterized as contrary to the Michigan Division position and as
" authoritative". The
- NRC' Staff believes this is a conclus' ion rather than a statement of fact and must await completion of this proceeding for final determination.
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7 3-p Paragraphs 23 and.24 concern whether Dow representatives wanted more'information 3
in the Temple testimony and whether Mr. Temple disclosed all relevant
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information in his direct testimony.. Mr. Wessel's deposition,-among others,
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raises factual matters which may be construed' to dispute this conclusion.
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See Wessel Tr. 203.. Further, while Consumers does not allege otherwise, it'-
-should be ~noted for the' record that the NRC ' Staff did not state in its December 30, 1976 memorandum that Mr. Temple's direct testimony fully revealed the reasons "why" the Dow corporate decision was made, if Mr. Temple knew.
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For the foregoing reasons, the NRC Staff opposes Consumers' motion for i
sumary disposition..
1 Respectfully s bmitted i
WK 4L,:J i
William J.
mstead 5
Counsel for NRC Staff d
i Dated at Bethesda, Maryland this 15th day of June,1979.
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' UNITED STATES OF AMERICA a
' NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD j
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In the Matter of CONSUMERS POWER COMPANY Docket Nos. 50-329 50-330
(.tidland Plant, Units 1 and 2)
(Remand Proceeding)
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CERTIFICATE OF SERVICE i
I hereby certify that copies-of'"NRC STAFF RESPONSE IN OPPOSITION TO CONSUMERS
MOTION FOR
SUMMARY
DISPOSITION" dated June 15, 1979 in the above-captioned i
proceeding, have been served on the following, by deposit in the United States mail, first class or, as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 15th day of June,1979.
- Marshall E. Miller, Esq.'
Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Summerset Street i
U.
C. Nuclear Regulatory Commission Midland, Michigan. 48640
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Washington, D. C.
20555 Harold F. Reis, Esq.
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Robert Lowenstein, Esq.
- Dr. J. Venn Leeds, Jr.
Lowenstein,-Newman, Reis and Atomic Safety 'and Licensing Board 10807 Atwell Axelrad 4'
Houston, Texas 77096 1025 Connecticut Avenue Washington, D. C.
20036
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- Dr. Emmeth A. Luebke Atomic Safety and Licensing Board Gerald Charnoff, Esq..
U.15. Nuclear Regulatory Commission Shaw, Pittman, Potts & Trowbridge-Washington, D. C. '20555 1800 M Street, N.W.
Washington, D. C.
20036 Judd L._ Bacon,'Esq.
Legal Department Mr. Steve Gadler 8
-Consumers Power Company.
2120 Carter Avenue 212-West Michigan Avenue St. Paul, Minnesota 55108 Jackson, Michigan. 49201 Grant J. Merritt, _ Esq.
- Docketing.and Service Section Thompson, Nielsen, Klaverkamp.
Office of the Secretary l
& James-Washington, D. C.
20555 80 S. ~ Eighth Street
- U. S. Nuclear Regulatory Commission Minneapolis, Minn.
55402 1
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' Michael I. Miller, Esq..
R. L. Davis, Esq.
Ronald G. - Zamarin Esq.
J. E. Dicks, Esq.
e Martha E. Gibbs, Esq.
L. F. Nute, Esq.
Caryl A. Bartelman, Esq.
The Dow Chemical Company Isham, Lincoln & Beale Legal Dept., 47 Bldg.
One First National Plaza Midland, Michigan 48640 42nd Floor Chicago, Illinois 60603
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Atomic Safety and Licensing Board Panel
-U.S. Nucle.ar Regulatory Comission Washington, D..C.
20555 m
Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Comission Washington, D. C.
20555 1
William C.- Potter, Jr.
Fischer, Franklin, Ford, Simon & Hogg i.
1700 Guard'ian Bu'ilding
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Detroit, Michigan 48226 i
i Myron M. Cherry, Esq.
J 1 IBM Plaza
' Chicago, Illinois 60611 i
William J. Olmstead Counsel for ~NRC Staff
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