ML19344A140
| ML19344A140 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 07/22/1977 |
| From: | Renfrow R, Rosso D CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8008060415 | |
| Download: ML19344A140 (9) | |
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NUCLEAR REGULATORY COMMISSION y
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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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OBJECTIONS OF CONSUMERS POWER COMPANY TO THE ADMISSION INTO EVIDENCE OF CERTAIN DOCUMENTS TENDERED BY-ALL INTERVENORS OTHER THAN THE DOW CHEMICAL COMPANY Consumers Power Company (Licensee)-objects to the admission into evidence of certain documents tendered by All Intervenors Other than The Dow Chemical Company (Inter-venors) by their motion of July 1, 1977.
Licensee has k'
general objections which pertain to all six documents men-tiened in. Intervenors' Motion and other objections which relate.specifically.to certain'of the proposed' exhibits.
Licensee's underlying objection to the admission
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of Intervenors' six documents goes to the untimeliness of
-their introduction which thereby deprives Licensee of its right'to inquire into the foundation and relevancy of the
- materials.
Intervenors' attempt'to. introduce yet additional exhibits into the record'by a motion delivered'to Licensee on July 1, 1977, together with Intervenors' Proposed Findings 8008.0'60 g g-g
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of Factiand; Conclusions of Law,.and' fully seven weeks-after
!the conclusion of the hearings-in this. matter,* isLa gross violation of the: basic principles:ofScivil and' administrative procedure.
These rulesfrequire a party to; identify the-documents tnat he: intends-to use inithe. presentation of his
. case-pri'or to the: time'the~ trial commences.
~See Licensee's
- June 18,."1977" Motion with r'egard to a - previous - attemp t by.
- Intervenorsito introduce new exhibits at the conclusion.
Tof theLhearing..
(Intervenors' Exhibits 59-77)
The bas'3 l
of this rule is-to' prevent surprisefand allow:for'an orderly t
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proceeding. 'While in~this proceeding, some latitude had to
' b'e permitted b'ecause of' continuing discovery during the
' hearings,Tthat-latitude-cannot be extended to the point of violating all'of the basic evidentiary rules by allowing..a party-to1 introduce documents at the conclusion of the hearing (and, now,seven'weeksLthereafter) without regard to the rules.
- of' foundation, relevancy, materiality. and hearsay. **
To
- allowpintroduction of these documents-at this-late date would' i;
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We would noteEthat Intervenors.did not even trouble-to deliver-
- copies;ofJall of the!proposedLexhibits with.the Motion and that copiestof someiof theseLdocuments were not mailed-to parties
..until thejfollowing week.
I LWe'would-also:pointiout that-Intervenors have attempted to-do 1just thislduring theLhearings by-~ simply taking documents which
- were _ produced in. discovery 'and L marking them 'as exhibits, without evershaving them? identified-by.a. witness.:. They.then have; t
attempted.to offer these documents into evidence without any
- inquirytas;tolproper; foundation, the-hears'ay nature'of the
.j 1 documents, their' relevancy or: materiality, or the context in q
.which.the? documents:were written.: :With a record l devoid of any sucheinquiry,JIntervenors have!then: felt-free to: create their.
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- own1" context"uforq such documents Land to chracterize then Ein
' JwhateverJmariner'suitsi their own : ends.
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eliminate'al'1 possibility of'a fair inquiry into their import and would.also violate the basic policy. against surprise (we
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twould point out1that some of these. documents are apparently.
offered ^in an~ attempt to raise lnew-issues which were not ven' inquired into at the-hearing - and which are irrelevant e
to;the' purpose of these hearings - thus' offering a clear and extreme. example:of violation of the policy against-surprise)..
In'short, to allow the introduction of these documents as exhibits at.this time would violate the underlying policy considerations of the hearsay rule and-would prejudice.the other parties by depriving them of = any opportunity to. respond.
r The only justification offered by Intervenors' counsel for the late offer of the documents was that certain l
of ' the do'cuments: post-date the termination of the heering.
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Licensee does not' object,-in principle, to.the idea-that newly discovered evidence can be introduced, and merely.
l-b points out that the Rules-of Evidence would still govern lJ such a! document's admissibility.
However,.Intervenors' proposed' Exhibits 60A, 78 and 81 do.not post-date the hearing.
'Those documents which'are " newly discovered", proposed
' Exhibits 179,D90 and 82,'are objectionable on other grounds l
i shich'areJdescribed-infra.
SIntervenors Proposed Group Exhibit 60A This.; proposed exhibit, a volume prepared by
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The" Dos Chemical' Company'(Dow)Las an~ attachment to the Dow a
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-Memor'andumlRegarding Hearing Preparation of. December 22, 1976, is the' companion volume to Intervenors' Exhibit 60.
There-can' be no justification for submitting'-'this document af ter 4
the' completion of theLhearing.
In addition,'the objections which Licensee made in its June 8, 1977 motion to-Intervenors'-
Exhibit:60~are equally applicable here.
The. question of:
the preparatioq of:the'Dow testimony is not an issue in L
this proceeding, and therefore, documents offered as to this question are irrelevant and should not-be admitted.
This i
Board,-by its order-at Tr. 502-03 and Tr. 516, has removed ~
this :questi^. from. the substantive questions to be decided
'in this proceeding,'and has indicated that it will be decided
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separately.
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'Intervenors'~ Proposed Exhibit 78 This document consists of certain pages of notes 1
taken by a representa*.ive of Dow of a February.24, 1976 Dow-Licensee meeting, which.arecattached to this Board's June' 15, 1977 Memorandum concerning antitrust matters.
i-These notes certainly do not post-date the hearings; further-1 anore, antitrust is clearly not an issue in this. proceeding,.
- which'has a very limited fosus, see Licensee's January 13, L1977-Motion and' June 13, 1977.Brief.
Thus, this document is irrelevant andishouldLnot be admitted into evidence.
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'Intervenors'~ Proposed Exhibit'79-
.Intervenors' Proposed Exhibit.79'is:an~ article-5 from"the Midland Daily-News concerning the' repair of the liner plate in Midland-Unit 2.-
Again, this relates to.a topic.which is.not an issue in this' proceeding and the documentLis therefore irrelevant and inadmissible.
Further-t
' more', - as.a newspaper ' article, '~this document must be objected
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The article's to as blatant and unreliable hearsay.
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- accuracy cannot be tested.
A Licensing Board which
. previously considered the issue of. admissibility, of newspaper
- articles found them to be-inadmissible hearsay, and not-entitled
- to admission.as evidence to prove the facts asserted'within them.' Illinois Power Company (Clinton Power Station, Units 1 and 2)'LBP-75-59, NRCI-75/9, pp. 579-630
-(September 30,.11975). 'That Board. based-its rulingfon the tfact that there was insufficient assurance of the-truthful-p
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ness of the facts' contained in the material, and cited much I#
judicialLauthoritylin. support of its finding,.Id. at 588.
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.In the ' instant proceeding,- the Chairman has indicated that j
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'a' newspaper artidle is 'not evidence:of anything" and 1
1 "obviously; hearsay" (Tr. 3284).-
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Interven' ors' Proposed Exhibit 80
'This; document, an interim Report concerning the.
Midland Unit 2 liner _plateL ulge, is'another example.of b
TIntervenors' attempts?to introduce new issues into this
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cproceeding.-. Thefliner plate bulge'does.not' fall within Lthec scope-ofEthe climited ~ topics which the. Board may consider.
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. in:this-suspensicn hearing,-See Licensee's January 13, 1977 Motion and-June. 13, 1977.Brief.
Thus, a document related to this.non-issue may not.be admitted as evidence in~this proceeding.
- Intervenors' Proposed Exhibit 81 This: item, which does not' post-date the hearing, l
is a. compilation ~made by Licensee of the relationship between: residential electricity-bills and personal income.
Although:Intervenors offer no convincing explanation of-its l
probative value, this document does appear to relate to a-i-
valid issue, demand forecasting, but it is objectionable on the ground that,'as it-was not identified by any witness at the hearing, there has been no foundation provided for the document.
Intervenors' Proposed Exhibit 82
,This document is an-NRC Staff Safety Evaluation concerning Licensee's Palisades Plant.. Despite the fact that this report post-dates'the hearing, it cannot properly 1
l be-admitted into evidence without Licensee and'the other cparties having had an opportunity to question a sponsoring witness-as to its nature and preparation.
Licensee's
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objection:is reinforced 1by the-use to which this document was-put byiIntervenors in.their Findings,.for as Licensee has -described in its -Responsive : Findings - at Paragraph. 47, Intervenors quoted.the Safety Evaluation out of context, thus= leaving an~ incorrect impression as to the document's true import.-
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For the-reasons set forth above, Licensee objects
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to the. admission into evidence of the six documents iden-tified:in:Intervenors_' July 1, 1977 Mot' ion.
Respectfully submitted, JM' M,
~ 'Dav-iti J / Ros5o' i
fu%&cJ & ctM.
R.
Rex Renfrow,/ III f
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>ccc Martha E.
Gibbs V b
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Cafyl A.
Bartelman Attorneys for Consumers Power Company l
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Isham, Lincoln:& Beale l
One First' National Plaza Suite 4200
-Chicago,' Illinois 60603 July 22, 1977 i
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' UNITED STATES OF AMERICA U
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-NUCLEAR REGULATORY' COMMISSION y
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8 Before~'the Atomic Safety and Licensing Boa ~ N'I'"
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In the Matter.of
)
)
CONSUMERS POWER _. COMPANY
)
Docket Nos. 50-329
~)-
50-330 (Midland Plant, Units 1 and 2)
)-
)
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CERTIFICATE OF SERVICE I hereby certify that copies of the attached
" OBJECTIONS-OF CONSUMERS POWER COMPANY TO THE ADMISSION
-INTO-EVIDENCE OF CERTAIN DOCUMENTS TENDERED BY-ALL INTERVENORS OTHER THAN THE DOW CHEMICAL COMPANY" in the i'
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-above-captioned proceeding, have been served on the following by deposit'in the United States Mail, first-class postage l
prepaid, this 22nd day of July, 1977:
l l
Frederic J.
Coufal, Esquire Atomic Safety and Licensing Chairman Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Comm.
Board Panel-Washington, D.C.
20555 l
U.S.' Nuclear Regulatory Comm.
Washington,-D.C.
20555 Mr. C. R. Stephens l-Chief, Docketing & Service Section Dr.'J.~Venn' Leeds, Jr., Esq.-
Office of the Secretary
-10807 Atwell of the Commission Houston,ETexas 77096 U.S. Nuclear Regulatory Comm.
' Washington, D.C.
20555
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Dr..[Emmeth A.'Luebke Richard Hoefling, Esquire
- Atomic-Safety,and Licensing-Counsel for NRC' Staff Board Panel U.S., Nuclear Regulatory Comm..
- U.S. Nuclear ~ Regulatory Comm..
Washington, D.C.
20555
_ Washington, D.C.
20555 L '. F. Nute, Esquire
_ Myron M. Cherry, Esquire-Legal Department
- One IBM Plaza Dow Chemical U.S.A.~
' Suite'4501.
Michigan Division
- Chicago,fIllinois.60611 Midland, Michigan 48640; Atomic'Safetyia'nd Licensing Board Panel
- U.S. Nuclear Rbgulatory Comm.
Washington' D.C.
.20555
$b N
uu w Caryl A. Bartelman Counsel for
' Consumers Power Company Isham,-Lincoln:& Beale One First' National Plaza-Chicago,~ Illinois-60603 312/786-7500 July 22, 1977 l
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