ML19344A140

Util Objections to Intervenors',Other than Dow Chemical Co, 770701 Motion to Admit Into Evidence Certain Documents Tendered Re Hearing Preparation Repts.Motion Should Be Denied.Certificate of Svc Encl.Related Correspondence

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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/ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 01-y 4\,g b

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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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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.

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• 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 i sucheinquiry,JIntervenors have!then: felt-free to: create their. 'l

- 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

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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 e ven' inquired into at the-hearing - and which are irrelevant 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.

n j' 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 l

J 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 l

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The" Dos Chemical' Company'(Dow)Las an~ attachment to the Dow a 1

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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:

L the preparatioq of:the'Dow testimony is not an issue in 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 t

documentLis therefore irrelevant and inadmissible. Further-

, ' more', - as .a newspaper ' article, '~this document must be objected

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to as blatant and unreliable hearsay. The article's 4

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 1

I# judicialLauthoritylin. support of its finding,.Id. at 588.

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.In the ' instant proceeding,- the Chairman has indicated that j I

'a' newspaper artidle is 'not evidence:of anything" and 1 1

, "obviously; hearsay" (Tr. 3284).- j g- _

Interven' ors' Proposed Exhibit 80

'This; document, an interim Report concerning the.

Midland Unit 2 liner _plateLb ulge, is'another example.of TIntervenors' attempts?to introduce new issues into this

[ cproceeding.-. Thefliner plate bulge'does.not' fall within Lthec scope- ofEthe climited ~ topics which the. Board may consider.

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. v 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 1

that this report post-dates'the hearing, it cannot properly 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 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

> < C4rna r_. - >ccc Martha E. Gibbs V v b . !w a.v[6ft.ut.s 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 k

-NUCLEAR REGULATORY' COMMISSION y "* ih.aa

'\4 , 8 Before~'the Atomic Safety and Licensing Boa ~ N'I'"

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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

" OBJECTIONS-OF CONSUMERS POWER COMPANY TO THE ADMISSION

-INTO-EVIDENCE OF CERTAIN DOCUMENTS TENDERED BY-ALL i' INTERVENORS OTHER THAN THE DOW CHEMICAL COMPANY" in the I -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:

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Frederic J. Coufal, Esquire Chairman Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Comm.

Board Panel- Washington, D.C. 20555 l U.S.' Nuclear Regulatory Comm.

l-Washington,-D.C. 20555 Mr. C. R. Stephens 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 i

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