ML19344D796
| ML19344D796 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 05/26/1977 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007140969 | |
| Download: ML19344D796 (7) | |
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o May 26, 1977 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CONSUMERS POWER COMPANY Dockat Nos. 50-329
)
3(F33if
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(Midland Plant, Units 1 and 2)
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NRC STAFF RESPONSE TO MOTION OF CONSUMERS POWER COMPANY TO ALLOW PRESENTATION OF REBUTTAL TESTIMONY Introduction On Friday, May 13, 1977, the Atomic Safety and Licensing Board (Board) orally established procedures for the filing of two categories of rebuttal testimony in this proceeding.
The first category consists of testimony filed (but not yet received in evidence) by the NRC Staff (Staff) and Consumers Power Company (Licensee) on February 28, 1977.
The second category consists of such rebuttal testimony as the parties may wish to file, subject to a determination by the Board that such rebuttal testi-many is proper in light of the additional events oc, curring since February 28, 1977.
Such rebuttal will be considered proper if it can be related to "new information".
(Tr. 6159) Rebuttal testimony was to be in the hands
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of the Board by May 20, 1977.
Any objections to the rebuttal testimony filed 1
on that date or any surrebuttal to such testimony by affidavit was to be i
in the hands of the Board by May 27, 1977.
In its " Motion and Supporting Memorandum by Consumers Power Company to Allow Presentation of Rebuttal.
Testimony" (Motion) filed on May 20, 1977, the Licensee sought a ruling from the Board admitting certain rebuttal testimony into evidence.
800,7140 b f
. Discussion The Staff has reviewed the rebuttal testimony filed by the Licensee on May 20, 1977.
The Staff will not file any surrebuttal before the Board.
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However, the Staff does feel that certain of the testimony presented as rebut'tal by the Licensee to this Board may be improper rebuttal which fails to meet the "new information" test established by the Board.
The Staff views the affidavits of James H. Climer and Blake 0. Fischer as forming the Licensee's response to the request made by Board Member Dr.
uebke that there be an examination by the Licensee of how the costs of delay relate to costs incurred by the Licensee's ratepayers and share-holders. This request was made on the record on Thursday, February 10, 1977.
(Tr. 3907-08).
These affidavits then are not rebuttal but are a response to a direct Board request. The Staff has no objection to the admission of these affidavits into evidence.
Similarly, the affidavit of Gilbert S. Keeley and portions of the affidavits of Gordon L. Heins and Robert J. Ringlee deal with updating testimony presently before the Board and again cannot be categorized as rebuttal.E The Staff has no objection to the receipt of this updated testimony into evidence.
O In the cases of both Mr. Heins and Mr. Ringlee, the updating deals with the impact of the April,1977 ECAR report entitled " Load Projections and Resource Planning", Volume 1 of a Report by ECAR Bulk Power Members to the FPC pursuant to Docket R-362, Order 383-4.
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This testimony falls in the same category as the " Supplemental Testimony of Walter Gundersen" dealing with the April,1977 ECAR update which the Staff filed with the Board and has moved into evidence.
With regard to the remaining portions of the Heins and Ringlee affidavits, the affidavits of Ronald Calcaterra, Steven H. Howell, and David A. Lapinski, the Staff feels that these affidavits do meet the criteria of "new informa-tion" laid down by the Board and so form proper rebuttal testimony.
The i
Staff has no objection to the admission of these affidavits into evidence.
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The affidavit of Richard F. Brzezinski may not meet the Board's test. The principles governing admission of rebuttal testimony are clear.
Under 10 C.F.R. 52.743, the Board may, in its discretion, exclude testimony which is not relevant, material, reliable, or that is unduly repetitious.
It is clear that the Brzezinski material is relevant and reliable. However, it may be unduly repetitious.
The Brzezinski affidavit deals with the Dow alternative which has been the subject of direct testimony in this proceeding by both the Staff and the Licensee.2,/ It 'thus appears that this " rebuttal" testimony can bc considered unduly repetitious and may come within the exclusionary rule regarding rebutt61 testimony.
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I Licensee's testimony on this issue was presented by Mr. Brzezinski at the March 23, 1977 hearing session following Tr. 4959.
Dr. Sidney Feld of the NRC St1ff presented testimony on this issue on March 24, 1977 following Tr. 5169.
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. The Licensee further contends that any showing of good cause demanded by the Board for the admission of rebuttal testimony is improper, as rebuttal testimony is admissible as a matter of right, and not subject to discre-tionary exclusion. E This is not a correct statement of the law.
A party has a right to rebuttal only for matters first raised as issues by an opponent in his direct case; 6 Wigmore, Evidence 51873, p. 678 (Chadbourn i
Rev.1976).
It is only such rebuttal which is not subject to the rule of discretionary exclusion.
See, U.S. v. Montgomery, 126 F.2d 151, 153 (3rd Cir.,1942).
It would appear that the Brzezinski affidavit does not reet thi s' tes t. Both the Staff and the Licensee have presented direct testimony examining the issue of whether a specific alternative to the Midland facility may be economically preferred.
So the issue of the Dow alternative was in the proceeding prior to the testimony of Dr. Timm, and no right accrues to the Licensee to submit rebuttal testimony on this issue.
While the Staff does not oppose the admission of the Brzezinski affidavit into evidence, the Staff suggests that that affidavit may not meet the standards laid down-by the Board regarding rebuttal testimony.
E Page 3 of Licensee's Motion.
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. Conclusion The Staff does not intend to file surrebuttal to the affidavits accompanying the Licensee's Motion.
The Staff has no objection to the admission into evidence of the affidavits offered by the Licensee but notes that one affidavit may bc beyond the standard established by this Board for admission into evidence at this time.
Respectfully submit d,
A*'
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t i
Richard K. Hoef ing j/
Counsel for NRC Sta f Dated at Bethesda, Maryland this 26th day of May,.1977.
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W UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CONSUMERS POWEP. 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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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO MOTION OF CONSUMERS POWER COMPANY TO ALLOW PRESENTATION OF REBUTTAL TESTIMONY" dated May 26, 1977 in the above-captioned matter, have been served on the following by deposit in the United States mail, first class or air mail, this. 26th day of May, 1977:
l Frederic J. Coufal, Esq., Chairman Honorable Curt T. Schneider Atomic Safety and Licensing Board Attorney General U. S. Nuclear Regulatory Commission State of Kansas Statehouse Washington, D. C.
20555 Topeka, Kansas 66612 Dr. J. Venn Leeds, Jr.
Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Summerset Street 10807 Atwell Midland, Michigan 48640 Houston, Texas 77096 Harold F. Reis, Esq.
Dr. Emmeth A. Luebke Robert Lowenstein, Esq.
Atomic Safety and Licensing Board Lowenstein, Newman, Reis &
U. S. Nuclear Regulatory Commission Axelrad Washington, D. C.
20555 1025 Connecticut Avenue Myron M. Cherry, Esq.
1 IBM Plaza L. F. Nute, Esq.
Chicago, Illinois 60611 Dow. Chemical, U.S.A.
Michigan Division '
Judd L. Bacon, Esq.
' Midland, Michigan 48640 Consumers Power Company 212 West Michigan Avenue Mr. Steve Gadler Jackson, Michigan 49201 2120 Carter Avenue St. Paul, Minnesota 55108 4
- R. Rex Renfrow, III, Esq.
Atomic Safety and Licensing David J. Rosso, 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 Atcmic Safety and Licensing U. S. Nuclear Regulatory Commission Board Panel Washington, D. C.
20555 U. S. Nuclear Regulatory Commission Washington, D. C.
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' MAlyf R'ichard K. Hoefling /
Counsel for NRC Staff I
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