ML19347A612

Forwards self-explanatory Ltr to CPC Counsel.Requests ASLB to Order Proposed Schedule for Witnesses & to Continue Suspension Hearing W/O Interruption Until Completion. Related Correspondence

ML19347A612
Person / Time
Site:	Midland
Issue date:	12/29/1976
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Coufal F, Leeds J, Luebke E Atomic Safety and Licensing Board Panel
Shared Package
ML19347A610	List: ML19347A609 ML19347A612
References
NUDOCS 8007291071
Download: ML19347A612 (7)

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uw orrcc3 # gh e 0 MYRON M. CHERRY k o,.c m k e

'h> j CHICAGO. ILLIN o t S Go6ft f n.......,,,, 4 December 29, 1976 Dr. Emmeth A. Luebke Dr. J. Venn Leeds Atomic Safety and Licensing 10807 Atwell Board Panel Houston, Texas 77096 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Frederic J. Coufal, Esq., Chairman Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Re: Consumers Power Company Midland Proceadings Gentlemen:

I enclose a copy ~of a self-explanatory letter to Consumers' counsel. I do not know as of ;.he writing of this letter whether Mr. Renfrow will agree to my proposed schedule, but I believe that my contemplation of the pproposed schedule is consistent with the and finds no obj ection,arties (and the Board's earlier rulings) from either the Regulatory Staff or Dow Chemical. based on remarks in the tra Accordingly, in the event that Consumers does not accede to my reasonable request by January 5, 1977, I would ask that the Board order the schedule which I have outlined in the enclosed letter.

Finally, because of the schedules of all concerned, I had contemplated that the hearing would begin on the 18th and continue thereafter until completion. Yet the Board's order of only apparently January 18. contemplates testimony during the week I hereby request the Board that if the suspension hearing is not completed during the week of January 18, 1977, it be continued the following week and thereafter without

. interruption until completed. I.believe that such a schedule was-contemplated by the prior-Board and the parties, and I understood that the. substitution of Chairman Coufal for Chair-man Head was to enable the Board to sit continuously until completion.

80,07291O M My present estimate is that the suspension hearing can be completed, based upon what I presently know, within.

10 to 15 hearing days and I urge the Board to favorably consider my request since I believe that the evidence will shou that the construction permit r@mR be lifted and occc h ~ " 4 ~-

w i Drs.-Luebke and Leeds-and Mr. Coufal-

~Page Two December 29, 1976 -

of continued ' construction is adverse to law and: the public interest.

This re to our Brief to bquest e filedfor a hear.ing under date ofschedule is without.

Decemberu30, 1976 whichprejudice

. supports _our' position that the Board presently has tue authority and obligation to is~ sue a suspension of the construction permit without the necessity of any of the upcoming hearfngs.

Sinderely,

/

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Cheyry -

MyofM. /

MMC:es enclosures /

cc: Mr.C.R.Stephens'/

Laurence Brenner, Esq. .

R.' Rex Renfrow, III, Esq.

David J. Rcsso,.Esq.

L. F. Nute, Esq.

Mr. Steve J..Gadler .

Mrs. Mary Sinclair P.S. I have just been informed by Mr. Renfrow that Consumers Power - Company. obj ects t 3 the_ hearing schedule set out -

in the. enclosed December 29,.1976 letter, beginning at  !

.page-2 and-continuing through page 4. In further support-of-the schedule I propose, I point out-that none of the-

-information that forms the basis forLthe cross-examination cui Messrs. . Aymona and Youngdahl appears --in the direct testimony of any-of Consumers'1 witnesses, including Messrs..Keeley,'Howell and others. Accordingly, it'is -

' ' -clear'that'asking'Co'nsumers' witnesses-Howell, Keeley andiothers about. matters within1the direct-oersonal Lknowledge of.: Mes'srs.'Yo~ungdahl and Aymond-'is.not the  !

.wayfto proceed '

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!When 11 explained this matterfto Mr. Renfrow,.his position

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. essentially,- as1I-understood.it,1was that1 Consumers 1just.

'doesn't want Aymond and=Youngdahl'to be cross-examined,.

.which isicontraryito.the: Board's: order.

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. Based :upon~ my: present:-: analysis , Jit is'~my belief - that _ .

tbeginningswith Aymondt and1Youngdahlfwill substantially?  !

l lessen the hearing time.andLthe_ cross-examinationiof-

other Consumersiwitnesses. Since: I : have f agreed to: ~

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Drs. Luebke and Leeds and Mr. Coufal

. Page' Three~ -

' December-29,;1976 stipulate.into.the record. Consumers' direct testimony

' (see my.enclosedeletter to Mr. Renfrow), I and not

. Consumers Power Company should have the reasonable

. opportunity to schedule cross-examination.

I resp Chairmectfull'y request a. prompt11n'accordance ruling ~b~y thewith hearing an ordering the schedule the outline'-I have suggested in my letter to'Mr. Renfrow enclosed.

L espe tfully, h l p/,';,

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, David J. Rosso, Esq. '

l -Isham, Lincoln & Beale Sr.ite 4200 Myce.

One First-National Plaza # # cop;.d Chicago, Illinois 60670 R. Rex Renfrow, III, Esq.

Ishar., Lincoln & Beale Su~ite 4200 l

- ele First National Plaza cicago, Illinois 60670 Re: Midland Interrogatories,~ Discovery Matters, and Witness Schedule l -

Dear Messrs. Rosso and Renfrou:

In going over the Answers to Interrogatories which were served upon you'by. Messenger December 27,.1976, I find

, a.few typographical. errors.which I set forth in this.communi-L -cation.- I think that the typographical errors are clear upon j their face, but I thought I would set them forth herein for

! your convenience.

l l a) In Interrogatory 1(c), page 7, in the second to

l. the last-line and~after the.words, "or sale of.

electricity",' insert the words "and steam".

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b) Interrogatory 5, at the end of the Interrogatory,

. add the following sentence: "If you have such

. contingency plans, set.them forth in detail."

L tc)' At the end of Interrogatory-7, page 10, insert the following: "Also set forth the. persons and

-details which. are -the subject of such negotiations or contemplated negotiations;"

od) Interrogatory 9, the sixth line, whichLis the second line on page.ll, at the end of the line,.

insert :the" word " Midland".

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Interrogatory:13,71ine 9, page 14 top line, after the word " decommission" add'to that word the.

. letters?"ing".

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' Messrs. Rosso and Renfrow

~Page Two December 29, 1976 f) In the first line of Interrogatory 14 on page 14 insert the word "your" between the words "in" and

" relationship".

Since I want the answers to these Interrogatories as soon as possible, .I agree to meet with .you cither in person or on the telephone to discuss any problems you may have in connection with these Interrogatories (including valid objec-tions) in the. event that will be helpful to you. Moreover, if period, please.do so.you can answer some of the Interrogatories before the-14 day I also confirm that the substance of this letter was given mately 2:00to you in a telephone pmLChicago time. conversation today at approxi-me , .in. detail,I confirm my telephone request of you today to send the December, 1976 estimate for project costs and sche ~. ale ~for completion of-the Midland Nuclear Facility Facility. from the architect / engineer for the Midland Nuclear receivco letter to the Board of December.This~ 27, 1976. revised Since thisestimate is was refe spectftally~ relevant information and you have disclosed it to the. Board, you agreed to provide me promptly with a cop of'that estimate and its-details as received by Consumers.y You told me that you-did not have it, but it was somewhere in Michigan in' Consumers' office and you agreed to have a copy forwarded to me directly from Michigan to save time.

.the status'of witnesses.I also-confirm tuat-today we had a discussion concerning As you know, the schedule of witnesses should be - geared posed cross-examination, since with ~ a good deal of Elexibility forf my pro-none of.

providing other than ~ written testimony. your witnesses will- be-orderLto shorten the actual hearing time, For that reason I made the following and in

Nyresentations to you:

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fl would1 stipulate'into evidence all-of your witnesses' Lprepared testimony:(except'those: portions as to which I have legal' obj ection,'- butiin such event : the_ matter ' can be ' re olved

on legal arguments by1the Board)'without the necessity of'your

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'having:any purposes. witnesses in attendance at the hearing for-these-

direct? case

efficiently,.quickly and promptly.1This.would enabl

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.Mussrs. Rosso and Renfrow

'Page Three-December 29, 1976 -

2. I then stated that I wanted you to produce for cross-examination Mr. A. H. Aymond and Mr. Russell Youngdahl.on.

January 18 beginning with Mr. Aymond or Mr. Youngdahl in any manner you prefer. As you recall the Board ordered that these witnesses.be produced for cross-ex, amination pursuant to my motion and over your objection, and I believe that etarting with tion.these witnesses can substantially shorten the cross-examina-3.

and Aymond, I would like to finish the cross-examiniation ofAft Dow witness Temple and then the cross-examination of the remainder

'of the Dow witnesses as presently sch'eduled with Mr. Orrifice and~the other persons who participated in the Dow corporate review.

4.

Af ter that, I wculd go back to cross-examining Consumers' witnesses Heino. and then Messrs. Keeley, Howell, and Wells, in any order you fina convenient so long as I begin with Mr. Heins. >

Based upon my analysis, I believe that my suggestion provides for the.most efficient hearing process and you informed L

me that you would get back to me af ter you have consulted with Mr. Rosso.

I also confirm your agreement to deliver to me today an index of negotiating and legal documents from your legal files for

' shortlyyou which do not to me claim privilege and which you will makc available to inspect.

I also confirm:that I will. receive

.in a few days anEindex or listing of the negotiations and legal documents upon which- you claim privilege so that. we can take the matter to the Borrd at the earliest possible time. I have received under date of December 24,'1976 an index of documents .

of a' technical-nature deali'gn with.various aspects which you say.

are now-available for inspection at your office. I will consult with Dr.:Timm and: advise you of when I'or.he will inspect.these

'decuments.

. proj ected : schedule.'..I can~now giveLyou more.information concerning the The Board.rulingLwith respect to production of Aymond.andfYoungdale is at-the'transcrip 755-756. While there11si aE suggestions that ?Aymond and -Youngdchl should be cross-

examinedTafter witness) Mr. Howell (tr.:756,-but no.other-Consumers it) isi clear . forl my -~ purposes !. tha t ' cros s-examina tion' . of W

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(- w es Messrs. Rosso-and-Renfrow 1 Page Four December 29, 1976' Mr. Howell cannot provide the information that I wish Erom Aymond and.Youngdahl. First of all, it was Youngdahl who was head of the negotiating team.with Dow, not Howell, and Youngdahl who wrote to and' received from Dow witness Temple approximately 25 letters.which in part will be the subject of Youngdahl's cross-examination.

It makes no-sense to cross-examine Mr. Howell concerning a letter written by or~to Mr. Youngdahl. Indeed, none of.the letters I am speaking about show carbon copies to Mr. Howell or anybody else.'.Accordingly, it was Aymond who prepared the notes of the September 1976 meetings in which Dow

.was threatened'with a lawsuit.and it was Aymond who gave the threatening speeches as disclosed by witness Temple to Dow Chemical'in December 1976. It again makes.no. sense to cross-examine Mr' . . Aymond.Howell'concer,ning notes and statements made directly by-Accordingly, even if we were to-proceed first with l

Mr. Howell, it is clear that he is not competent to provide,

based on personal knowledge, the information sought from Aymond and Youngdahl who were making the decisions.. Accordingly, F1.r.continue Youngdahl. to suggest we start by cross-examining Mr. Aymond and i

The transcript also reflects (903-04, 969 that there was an agreement to complete the Dow witnesses asand following)

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soonon only asthe possible 19th and and 20th.in fact, Mr. Orrifice is presently.available I confirm today in a telephone p conversacion with Mr. Wessel that Dow also had contemplated l~ that their witnesses would be called at the upcoming hearing, L and I do no' believe (although Dow can speak for itself) that Dow would have any objection .to my beginning with Aymond and Youngdahl so as.to set.the stage'and place.in~ proper context' the cross-examination of the Dow witnesses.

'I also give you' notice'that I intend to petition the

• Board to continue the hearings the-week.of January 24 and-

. hopefully'thereafter until completion.

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Sin rely, /

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-MMC:es cc:

Frederic-J. C6ufal, Esq., Chairman U '

Dr..Emmeth A. Luebke

Dr. J.cVenn : Leeds - ,/

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oMr. C. R.=St'ephens 7 i ./-

. Lawrence :Brenner, Esq. ,/

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L; F..-Nute, Esq. .

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