ML19344A213

Dow Chemical Co Response to Intervenors',Other than Dow Chemical Co,780105 Amended 780109 Second Request for Discovery.Request Should Be Denied.Certificate of Svc Encl

ML19344A213
Person / Time
Site:	Midland
Issue date:	02/06/1978
From:	Nute L DOW CHEMICAL CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8008060562
Download: ML19344A213 (6)

Text

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h 6 Before the Atomic Safety and Licensing Board 4 1

In the Matter"of

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CONSUMERS POWER COMPANY Docket Nosq (Midland Plant, l' nits 1 and 2) )

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RESPONSE.OF THE DOW CHEMICAL COMPANY TO INTERVENORS' OTHER THAN DOW SECOND REQUEST FOR DISCOVERY The Dow Chemical Company ("Dow") hereby responds to Inter-venors' Other than Dow Second Request for Discovery, dated January 5, '

1978,-as amended on January 9, 1978.

Dow. objects to Intervenors' latest request on the grounds that the information requested is of little or no relevance to this proceed-

.ing and that the production of the reouested material would impose an undue hardship on'Dow. Dow always has responded -- and continues to

. respond -- to legitimate discovery requests by Intervenors and the Staff._ The instant discovery request, however, poses unreasonable burdens on Dow and asks for information which is irrelevant to the issues to. be decided at the remand hearing.

It must be' remembered that Dow has a limited role in these

. proceedings. Dcw is not the applicant for the license; rather, it is (~~

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=only a user. of the steam and electricity to be produced by the proposed

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plant. ;Thus, whether.Dow; believes that the project is good or bad for it is not the issue in this case. The only issue which the Board need I

concern >itself with~ at .the. remand hearing is the' question of whether Dow will take the steam and electricity which are to be generated by the Midland ~ nuclear pla .ts upon their completion. . Dow's ' position on this issue has'been made clear through testimony and m ?onses to I

Interrogatories. -In fact, the Board has recognized that "the record '

. now contains'most, if not all, of the evidence relative to.Dow's situa-

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tion," and that, with limited exceptions,' there is "no need to receive evidence on this. subject" -(ASLB Order of November 4, 1977).

Dow has always been prepared to respond to legitimate dis-

. covery requests by all' parties -- including. Intervenors. Indeed, Dow has already fully responded to Intervenors' Interrogatory No.1, which.

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asks Dow to "[d]escribe in _ detail the nature of ?.he. dispute (between ,

Dow and Consumers) and the status of any. negotiations to resolve said -

. dispute." Not only did Dow. respond in detail to this Interrogatory when -it was first propounded, but Dow has. continually supplemented its interrogatory answer to~ reflect the current status of negotiations be-tween'Dow'and. Consumers. Intervenors are therefore fully informed as 1to the present. status 'of thnse negotiations. .

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Iritervenors now ask Dow to produce all notes and otherri. .

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ings[ relating to the _ contractual relationship between Consumers and .l l

-Dow and <all meetings .which have:taken place between 'Dow and Consumers. .

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It goes without saying- that. disclosure of these sensitive documents at

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the present time -- when negotiations between Dow and Consumers are

continuing -- might result in serious injury to Dow's bargaining posi-0

.._ tion.1The type of unlimited discovery now demanded by Intervenors would require the disclosure of confidential Dow documents to the great detriment of Dow. Given the targinal relevance-of most of the material-demanded (if, indeed. the material has any relevance at all to the-issues which must be decided by the Board), Intervenors' request is totally unreasonable.*

As the court recognized in Everco Industries, Inc. v 0.E.M.

Products Co. , 362 F. _Supp. 204, 206 (N.D. Ill.1973), "there are certain documents which are confidential. and should not be discovered without sufficient cause." In Everco, the court denied defendant's request for "all contracts and correspon'dence".between' plaintiff and other corpora-tions on the grounds that "the materiality and relevancy of such open -

ended discovery" was not apparent.

Noting "the potentially confidential l

nature of many of the documents,~" the court found defendant's request- H "for carte blanche production of all contracts and comunications between plaintiff and certain other companies" to be " improper and overbroad." J

. Intervenors' request in the instant case is similarly im-proper. .Dow recognizes its obligation to inform all parties of the continuing status.of its negotiations with Consumers and of any further l

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corporate determination it may make with regard to its contractual agreement with Consumers. Intervenors' request goes far beyond what '

• In addition, some of the material. requested.by Intervenors is protected by..the, attorney-client and work product privileges.

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is needed toisupply,all interested. parties with the relevant information as'to Dow's position. Intervenors' request would impose an undue hard-

. ship on Dow and the information requested would: not aid in the' Board's 5

detennination of the remanded issues.

.. Respectfully submitted,

,W L. F. Nute Attorney The Dow Chemical Company Legal Department e

Dated: February 6,1978 -

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-Before the Atomic Safety and Licensing Board

. <?; Q'Ncll In the Matter of

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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 " Response of The Dow Chemical Company to Intervenors' Other than Dow Second Request.

for Discovery" dated February 6,1978, were. served upon the individuals whose names appear on the attached Service List by deposit in the United States mail, postage prepaid and properly addressed, on the 6th day of

' February, 1978.

. Y ex.)

Connie K. Miller /

P.O. Box 271

' The Dow Chemical Company Legal Department Midland, MI 48640 .

Dated:- February 6, .1978 -

Attachment:

Service' List

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- SERVICE LIST I

Marshall E. Miller,'Esq., Chairman Richard K. Hoefling, Esq.

l Atomic Safety and Licensing Board Counsel to flRC Staff' U.S. Nuclear- Regulatory Commission Nuclear Regulatory Commission

. Washington, D.C. :20555 Washington, 0.0. 20555 Dr. J. Venn Leeds, Jr. Caryl A. Bartelman, Esq.

Atomic Safety and Licensing Board Michael I. Miller, Esq.

-10807 Atwell Isham, Lincoln & Beale Houston, Texas 77096 One First National, Plaza Chicago, IL_ 605t)3 Dr. Emmeth A. Luebke TAtomic Safety and Licensing Board Atomic Safetf and Licensing Board U.S. Nuclear Regulatory Commission Panel Washington, D.C. 20555 - U.S. Nuclear Regulatory Commission-Washington, D.C. 20555 Myron M. Cherry, Esq. .

One IBM P1aza - Atomic Safety and Licensi_ng Appeal Chicago, IL_ 60611 Panel U.S. Nuclear Regulatory Commission Judd L. Bacon, Esq. Washington, D.C. 20555 Consumers Power Company 212 West Michigan' Avenue Docketing and Service section-Jackson', MI 49201 Office of the Secretary U.S. Nuclear Regulatory. Commission . )

, Ms. Mary Sinclair Washington, D.C. 20555

' ' 5711 Summerset Street -q Midland, MI '48640  !

l

.l Harold F. Reis, Esq.

Robert Lowenstein, Esq.

Lowenstein, Newman, Reis &

=Axelrad- ~

1025 Connecticut Avenue Washington, D.C.: 20036 -

Mr. Steve Gadler 2120 Carter Avenue St. Paul, Minnesota . 55108 -

NortoniHatlie','Esq.

Attorney'at Law:

'P.O. Box'-103 Navarre, Minnesota 55392 e

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