ML19344A099

NRC Answer to Util 771003 Petition for ASLB Reconsideration of Portions of ASLB 770923 Memorandum & Order Re Admittance of Midland Intervenors Exhibit 25 Into Evidence.Portions Should Be Denied.Certificate of Svc Encl

ML19344A099
Person / Time
Site:	Midland
Issue date:	10/18/1977
From:	Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8007310606
Download: ML19344A099 (10)

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C UNITED STATES OF AMERICA -

' NUCLEAR REGULATORY C0fEISSION BEFORE THE' ATOMIC SAFETY AND LICENSING BOARD In the Matter of CONSUMERS PONER COMPANY

' Docket Nos. 50-329 50-330 (Midland Plant, Units 1 and 2)

NRC STAFF ANSWER TO PETITION FOR RECONSIDERATION

- Introduction In July 21, 1976, after review of tN orders of the U.' S. Atomic Energy Comission granting construction permits for the Midland facility, the Court of Appeals for the District of Columbia Circuit in Nelson Aeschliman, et al. v. U. S. Nuclear Reculatorv Commission, 547 F.2d'622 (D.C. Cir.,1976), cert. granted -sub' nom. Consumers Power Comoany v.~ Aeschliman, 45 U. S. L. W. 3570 (February 22,1977)

(Aeschliman) remanded 'a number of issues to the Nuclear Regulatory Comission:(Comission) for consideration. The Comission reconvened an Atomic Safety and Licensing Board (Licensing Board) which examined-

' the question of whether the Midland facility should have its con-

' struction permits continued, modified, or suspended in the interim until a fulliremand proceedino could;take place..The narties to this-suspension proceeding were Consumers Power Company (Consumers), Dow L8007310 h.

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4 Chemical Company -(Dow), All Intervenors- 0ther Than Dow (Intervenors),

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and:the NRC Staff (Staff). On September 23, 1977, the Licensing Board issued its Order declining to modify or suspend the construction pennits for. the' Midland facility pending the outcome of the remand proceeding. On October 3,1977, Consumers petitioned the -Licensing Board for reconsideration of portions of that Order.

In its petition,-

Consumers also seeks reconsideration of a portion of the Board's Memorandum and Order of September 23, 1977, which ruled Midland Intervenors' Exhibit No. 25 (Nute Notes) admiss.able as evidence in this ' proceeding.

On October 10, 1977, Intervenors filed their objections to Consumers' petition.

Discussion The Licensing Board should clarify or reconsider paragraphs 10 and 11 of its Order.

Consumers views the paragraphs in question as j

possibly constituting a considered judgment by the Licensing Board as to improper conduct by Consumers and its counsel in the preparation of the Temole Testimony. The language of paragraph 11 is not definitive.but.it. does appear to raise a strong implication of such

,.impmper conduct.

For example, the finding by the Board that "none

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-of these proposed stratagems were successful" leaves the clear

. implication that there were " proposed stratagems"; and the last sentence of.that paragraph where the Board indicates a suspicion on l

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its part th'at undisclosed " ploys" to. deceive the Board may be lurking, raises' implications of unprofessional conduct.

If such C

. implications do not in fact reflect the Licensing Board's position on this question, we believe that the Licensing Board should clarify

.its opinion, stating its position in precise tern $s.

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If, on the other hand, the imolications raised in paragraphs 10 and 11 do reflect a determination by the Licensing. Board that Consumers I

and its coun' el have acted improperly,. the Board should reconsider s

its Order and grant Consumers' request for an opportunity to present further evidence.

The ' Boar'd's Order may have the effect of charging Consumers and its counsel with improper and unprofessional conduct, with serious consequences for the individuals involved and Consumers itself.

In view of the seriousness of the matter, we believe that the Board should be disposed to give the persons accused all reasonable oppor-tunity to submit evidence relevant to their defense.E f

E n February 15, 1977, we infomed the Licensing Board that the O

7 NRC Staff intended;to conduct further inquiry into the matter -

of the preparation.of the Temple testimony (Tr. 4320-21).

-Subsequently, the Comnission's Office of' Inspector and Auditor

.(OIA) conducted a review of the record materials in this

. proceeding to detemine whether there.is sufficient indication of any' potential criminal violation to' justify further action by. that 0ffice. OIA recently informed NRC Staff Counsel that it had concluded its review and found in the record materials

no; indication of criminal' conduct or other misconduct'which

.would warrant-further action by that Office.

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m Furthermore, Consumers argues with some justification that it had not been fairly apprised by the Licensing Board that it would have no further opportunity to rebut charges surrounding the Temple testimny.

The Staff was of the impression that the Temple testimony would be examined separately by the Board. This impression was fostered by Board remarks such as those on February 1,1977 where the Board comented that certain affidavits related to the preparation of the Temple testimony could be examined in "some other proceeding".

(Tr. 2369).

But perhaps the most clear indication from the Board as to the course it proposed to treat the question of the Temple testimony was the Board's Memorandum of June 15, 1977.

There, the Licensing Board indicated that it would defer ruling on secondary issues until it had resolv'ed the suspension question.U While it is true that the Licensing Board never explicitly indicated that the record on the Temple issue was closed, a reasonable inference from the Board's stated intent to treat the question separately is that Consumers would be afforded an opportunity to rebut if it so chose.

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It should be emphasized that'it appears no prejudice will accrue

, to any. party in granting-the _ relief that Consumers requests.

U emorandum, po. 2-3.

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Intervenors' objections are totally devoid of even any claim of prejudice. Consumers, as the party aggrieved, seeks an opportunity to complete the record on a secondary issue.

Since the Board findings on Consumers' conduct did not have a direct bearing on its decision on the suspension question, the Board's Order would stand unaffected by reconsideration of paragraphs 10 and 11.

A final reason weighs heavily in favor of Consumers' petition. The Board's sole reliance upon the Nute Notes in its paragraphs 10 and 11 evidences an inadequate exploration of the issue.

It should be mentioned at the outset that the Staff disagrees with Consumers'

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position on the admissibility of the Nute Notes.

In its " Staff Objections To Intervenors' Exhibits and Motion to Admit Evidence" of June 2,1977, the Staff argued that the Nute Notes were irrelevant to the suspension issues and thus not admissible on those issues.

The Staff believes that the Nute Notes are clearly relevant to the issues surrounding the Temole testimony, issues which the Staff then believed would be treated separately. Thus, the Staff opposes that portion of Consumers' petition for reconsideration which appears to

. challenge-the admissibility of the Nute Notes on the Temple issue.

The Staff also does not share Consumers' alternative view that if the Nute Notes were to be admitted, they should be given little weight.

The Nute Notes were prepared by a Dow attorney assigned the 4

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' T responsibility of maintaining notes for Dow at a Dow-Consumers -

meeting Hoflsome Lim' ortance.

The noths were apparently checked with p

l another Dow official before they were finalized.

(Tr. 2244-45)-.

l Mr. Nute:was.often'present &t the suspension proceedings representing

~Dow and at no time did he indicate-to the Board that his notes were u~2jless than accurate.

l-But the probative value of the Nute Notes is not the issue.

Rather, 4

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-the issueL.is'the--completeness of this Board's consideration of the 5-Tenple issue in its Order. - There are numerous other documents which

'the Board has before.it relating to the preparation of the Temple testimony including affidavits of counsel directly _ concerned.5/ But

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the Licensing Board's determinations ~ in paragraphs 10 and 11 do not -

reflect-the Board's-evaluation of all the evidence before it.

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Two Appeal: Boards have recently held that a more complete explanation of Licensing Board decisions _ is required, with explicit consideration

2/4See " Memorandum of Licensee, Consumers Power Company, and Its Counsel-Regarding the Preparation of Testimony _ and the Presentation -

of Evidence", dated LDecember 30, '1976, " Affidavit of. David Ji i

- Rosso", " Affidavit of R. Rex _ Renfrow III"', " Affidavit of Judd L.

. Bacon",, and Attachments cA' through -P; "Dow Memorandur Regarding:

Hearing Preparation" dated December 22,~1976 with Exhibits A-Z; "Historyf of:the : Preparation of. Mr. Temple's Testimony as Disclosed 'in Documents Produced ~ Pursuant to the. Protective-Order" l

' dated _ December 22,:1976 ~with Exhibits AA-KK.-

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4 of the reason why some evidence is accepted in preference to other evidence:

In some areas, the Board below appears to have satisfied these requirements. But, as will become apparent in our subsequent discussion of particular issues, in other areas its decision manifestly fell far short of meeting the applicable standards.

In particular is this one with respect to tne Board's lack of reference to (much less discussion of) evidence contrary to that which it accepted. Much of the contrary evidence was reasonable on its face and sponsored by well-qualified witnesses; if it was not to be accepted, the Board had some obligation to explain why not.

Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2),

ALAB-422, 6 NRC 33, 41 (July 26,1977; in accord Public Service Electric and Gas Company, et al. (Hope Creek Generating Station, Units 1 and 2), ALAB-429, NRC

, slip opinion, page 16.

By this standard, a more complete presentation of the Licensing Board's reasoning appears warranted especially with regard to the countervail'ng evidence.

Since some reconsideration and amplification of the Board's findings would. in any event be ' required, the Staff

' believes that the Board should consicer permitting Consumers to complete the record prior to the Board's re-determination to assist it in its task and to provide a better evidentiary base for the Board's decision.

Conclusion The Board should reconsider paragraphs 10 an'd 11 of its September 23 Order.

Consumers seeks to complete the record on the grave issue of

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. improper conduct. 'No prejudice has.been shown by any of the parties to this proceeding in such a course of action.. Completion of the record will assist this Board in more fully explaining its findings.

'The Nute-Notes are proper evidence before this Board on the Temple

- issue.

That portion' of Consumers' petition ' ealing with tho'se notes d

should be' denied.-

Respectfully submitted,

,da/0 a

Richard K. Hoefling.

Counsel for NRC Staff

- Dated at Bethesda, Maryland

- this 18th day of October,1977.

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UNITED-STATES OF AMERICA.

' NUCLEAR REGULATORY COMMISSION BEFORE THE' ATOMIC SAFETY AND LICENSING BOARD

. In. the Matter of-

' CONSUMERS POWER COMPANY Docket Nos. 50-329

, (Midland Plant, Units-1 and 2)

)

j CERTIFICATE OF SERVICE I hereby certify that copies.of,"NRC STAFF ANSWER TO PETITION i

FOR RECONSIDERATION" dated October 18, 1977 in the above-captioned l

proceeding, have been served on the following by deposit in the United States mail, first class or air mail, this 18th day of

(

October,1977.

Frederic J. Coufal. Esq., Chairman

. Atomic Safaty -

ensing Boara' U. S. Nuclear

...:ory Commission Washington, D. L.

20555 Dr. J. ~Venn Leeds, Jr.

Ms. Mary Sinclair Atomic Safety and Licensing = Board 5711Summerset Street 10807 Atwell Midland, Michigan 48640'

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Houston, Texas 77096' Harold F. Reis, Esq.

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Dr. Emeth A. Luebke Robert Lowenstein, Esq.

Atomic Safety and Licensing. Board Lowenstein, Newman, Reis &

U.- S.. Nuclear Regulatory Commission Axelrad H

Washington, D. C..'20555 1025' Connecticut Avenue 1

Washington, D. C. - 20036 Myron M. Cherry, Esq.

l IBM P1aza-L. F. Nute, Esq.

I Chicago, Illinois-60611 Dow~ Chemical, U.S.A.

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l-Michigan Division '

Judd L. Bacon. Esq.

Midland, Michigan 48640 g

- Consumers-Power Company

.Mr. Steve Gadler 212 West Michigan Avenue-g Jackson, Mich;gan 49201 2120 Carter Avenue l.

St. Paul,-Minnesota 55108 1

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Michael I.;fiiller, Esq.

Atomic. Safety and Licensing

._ Caryl A. Bartelman,;Esq.-

Appeal Panel Isham,: Lincoln:& Beale U. S. Nuclear Regulatory Commission One'First National Plaza Washington, D.'C.

20555

Suite 4200 Chicago, Illinois 60603~

Docketing and Service Section.

Office of the Secretary

Atomic Safety and Licensing -

U. S. Nuclear Regulatory Commission-Board Pa'nel-Washington, D. C..

20555 U. S. Nuclear Regulatory Commission Washington, D. C.

20555 i

Norton Hatlie,' Esq'.

Attorney-at-Law P..O.. Box ~103 L

.Navarre, Minnesota 55392' kh

's frichard K. Hoefling Counsel for flRC Stafi(//

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