ML19330A077

Objections on Behalf of All Intervenors Except Dow Chemical to Util 770520 Rebuttal Testimony.Urges That Testimony Be Disregarded Due to Failure to Meet New Info Test.Requests That Intervenors Be Allowed to File Brief,If Admitted

ML19330A077
Person / Time
Site:	Midland
Issue date:	05/26/1977
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19330A074	List: ML19330A073 ML19330A076 ML19330A077
References
NUDOCS 8007140893
Download: ML19330A077 (9)

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V NTED CORRESPONDENCE ee m U$NRC UNITED STATES OF AMERICA ffAY 3113/7 > h" L

NUCLEAR REGULATORY COMMISSION 5

,,,,,.,,,,,s Before the Atomic Safety and Licensing Board f

In the Matter of T

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Docket Nos. 50-229 CONSUMERS POWER COMPANY

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50-230

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(Midland Plants, Units 1 and 2)

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OBJECTIONS OF INTERVENORS OTHER THAN DOW CHEMICAL COMPANY TO PURPORTED " REBUTTAL" TESTIMONY PRESENTED BY CONSUMERS POWER COMPANY For the reasons set forth herein, Intervenors other than Dow Chemical Company object to the following-portions of the purposed " rebuttal" testimony submitted by Consumers Power Company in this proceeding as of May 20, 1977, and ask that those portions of Consumers' " rebuttal" testimony be disregarded by the Board:

1.

The reference at page 8 of the May 19, 1977 Affidavit of David A.

Lapinski to an Edison Electric Institute Report issued in December 1976; 2.

The May 19, 1977 Affidavit of Richard F.

Brzezinski; 3.

The revisions to pages 11 and lla of the testimony of Robert J.

Ringlee, submitted as attachments to an affidavit of Ringlee dated May 19, 1977; 4.

The May 18, 1977 Affidavit aIf Stephen H. Howell and the attachments thereto; 5.

The May 19, 1977 Affidavit of James H.

Climer, and the attachments thereto; and s

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The May 19, 1977 Affidavit of Blake O.

Fisher, and the attachments thereto 8007140 h b

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. As the Board knows and Consumers admits, this Board has repeatedly instructed the parties that the rebuttal testimony bound into the special transcript volume of March 23, 1977 was expected to include all rebuttal which Consumers and the Staff desired to offer as of March 2, 1977--approximately a month after the written direct testimony of Dr. Timm was prepared and distributed.

This Board has specifically refused to entertain any further rebuttal testimony unless it met two tests--that it was related to new information which has become available since March 2, 1977, and that a specific showing be made that the purported " rebuttal" is tied to that new matter.

The purported " rebuttal" to which Intervenors other than Dow object does not meet those tests.

Thus, it should be re-jected by virtue of the Board'.s Order alone.

Furthermore, the purported " rebuttal" testimony to which Intervenors object has e

been tendered under circumstances which make it impossible to cross-examine concerning that testimony, or to adequately respond to it.

As the Board knows, a stringent time limitation was placed on the preparation of testimony by Dr. Timm responsive to the several hundred pages of " rebuttal" testimony and exhibits filed by Consumers and the: Staff.

tr. Timm, who as the Board knows is the only expert witness available to Intervenors, has had only

. one week within which to read, digest, and respond to the un-

. bound rebuttal testimony of no fewer than eight separate witnesses tendered by Consumers on May 20, 1977.

That would be burden enough.

But in addition to that, because of the Board's earlier Order (which Intervenors and Dr. Timm have obeyed) that Dr. Timm not be given access to any of the volumi-nous' bound rebuttal testimony submitted by Consumers and the Staff until after completion of his cross-examination, DI. Timm 4

has had only two weeks--running concurrently with his one-week time to review the unbound rebuttal testimony--in which to analyze and respond to the bound rebuttal testimony.

The bound rebuttal testimony includes testimony by no fewer than 14 separate witnesses, again together with multiple and extensive exhibits.

Obviously, the limited opportunity given Dr. Timm to respond to all of that massive " rebuttal" by written affidavit is no substitute for the kind of searching and detailed inquiry which could be conducted on cross-examination of live witnesses.

That would be true even if Dr. Timm had had two months, rather than two weeks, within which to consider the rebuttal. "

Equally obviously, Dr. Timm has been severely hampered,in preparing even the limited response to the " rebuttal" possible in the absence of full cross-examination,by constraints of both time and manpower.

Not only is Dr. Timm the only expert witness j

aso.lable to Intervenors (as opposed to well over a dozen witnesses

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, used by Consumers and the Staff), but also--unlike the over-whelming majority of Consumers' and the Staff's witnesses -

testifying in this proceeding is not pagt of Dr. Timm's job

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The extremely limited time given him to r.aspond to the " reb t u tal" testimony has been further cut down by tue fact that at the same time he has been occupied in the fuyl-time and demanding job of Supervisor of Energy Plann3.niJ for the State of Oregon.

We do not make these points in a search for sympathy, but only to underscore the fact tha/~. strong considerations of r\\

fairness, as well as the desire to get these hearings over with, cupport this Board's determination that "r'buttal" testimony should be stringently limited.

While no one yants Eonexc.\\ude i

relevant testimony, at the same time, it would $iNextraordinarily unfair, in light of this Board's and the Commission's conclusion that financial assistance cannot be awarded to Interveno rs, to allow Consumers and the Staff to inundate Intervenors limited resources with a mountain of belated paperwork which

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cannot adequately be responded to in the very brief time available All of-the testimony to which we have objected clearly falls in that category, as, witness by witness, we will show 1.

Lapinski Affidavit.

At page 8 of his May 19, 1977 Affidavit, Mr. Lapinski attempts to sneak into the record, under circumstances which obviously preclude any sort of detailed cross-cxamination, a reference to an Edison Electric Institute study which his own Affidavit asserts has been available since Decem 1976.-

Even though that reference cannot overcome the facts of 9

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. this case, as Dr. Timm shows in his rebuttal Affidavit, the reference should nevertheless be stricken.

We do not have, nor have we been given sufficient time to obtain and to analyze, that Edison Electric Institute study.

For the reasons previously noted, simple fairness, as well as this Board's Order, mandates that the reference to it be stricken.

~2.

Brzezinski Affidavit.

Altheugh Dr. Timm has dealt with the May 19, 1977 Affidavit of Richard Brzezinski to the extent time permits, the Affidavit should nevertheless be stricken because it is nothing more than a transparent attempt by Con-sumers to get the advantage of still another attack on Midland Intervenors' Exhibits 46 and 46R without giving Dr. Timm an opportunity to respond in full.

Even a casual reading of the Brzezinski Affidavit shows that it is devoted to Exhibit 46, not i

Exhibit 46R, and that it could and should have been submitted prior to March 2, 1977.

Furthermore, during the week of May 9 through May 13, 1977, Consumers had more than ample opportunity to cross-examine Dr. Timm in whatever detail it felt necessary concerning both Exhibit 46 and Exhibit 46R.

The fact that Consumers chose not to take advantage of that opportunity, but instead waited until after Dr. Timm had lef t the stand, eloquently shows that Consumers simply wanted to deprive Dr. Timm of the opportunity for an on-the-spot response to Consumers '

errors.

That is a gross abuse of fair procedure and a gross violation of this Board's Order, and it should not be tolerated.

3.

Ringlee Affidavit.

Just as Intervenors ultimately

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< withdrew their objection to the revised testimony of Mr. Gunderson, reflecting the current ECAR report rather than the outdated'1976 version of that report, Intervenors do not object to the portion of Mr. Ringlee's Affidavit and attachments which concern the ECAR report.

Intervenors do object, however, to Mr. Ringlee's belated attempt to sweepingly revise page 11 of his testimony (and add a page lla), because,as a reading of the revisions makes clear, they have nothing to do with Dr. Timm's testimony on cross-examination.

Rather, they simply represent an attempt by Mr.

Ringlee to prop up his ptherwise incorrect and unpersuasive attack on.Dr. Timm's direct testimony concerning Midland Intervenors' Exhibits 34 and 35.

(In addition, even the revised version of Mr. Ringlee's testimony remains incorrect.

Because of the time constraints previously referred to, and because even if Mr.

Ringlee were correct his tes;timony would not make muc'h difference, since--as Dr. Timm shows at pages 10-11, 28 of his rebuttal Affidavit--

even if 20% reserve requirements on Consumers' system are assumed, a suspension of construction will not impair those reserves, Dr.

Timm has not specifically pointed out Mr. Ringlee's errors in Dr. Timm's rebuttal Affidavit.

If the Board accepts Mr. Ringlee's purported " rebuttal" testimony, then we ask that Dr. Timm also be permitted to submitted a brief additional Affidavit explaining Mr. Ringlee's errors.)

4.

Howell Affidavit.

Intervenors object to the May 18, 1977 Affidavit of Stephen Howell for the reasons fully stated at I

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. pages 5677-79 and 5685-88 of the transcript in these proceedings.

The Howell Affidavit and its attachment constitute nothing more than self-serving, ipse dixit statements by a Consumers official that he disagrees not only with what Bechtel (which, as the builder, certainly ought to know) says abou: the costs of building the Midland plant, but also with what Consumersown in-house review team says about these continually escalating costs.

No doubt Consumers would like to ignore the fact that the costs of building the plant continue to go up.

But to ask this Board to accept Mr Howell's totally unsupported and conclusory wishful thinking, without affording an opportunity for cross-examination, is totally improper.

5.

Climer Affidavit.

The May 19, 1977 Affidavit of James H.

Climer is clearly _ improper, as Consumers itself points out, bc-cause its purpose is to respond to Dr. Timm's written testimony.

That was, of course, the purpose of the rebuttal testimony which was bound into the record on March 23, 1977; it is completely unfair and improper, and deprives Intervenors both of the right 4

of cross-examination of Mr. Climer and of the opportunity to respond _in full to what he says, to allow rebuttal to Dr. Timm's written testimony at this late date.

Furthermore, the fact that the Climer Affidavit purports to respond to a request of Dr.

Luebke has no significance.'

That request was made on February 10, 1976--well before the March 2 cutoff for filing rebuttal testimony, and.in fact almost four months ago.

Delaying that long to em y

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. respond to Dr. Luebke's r,equest is not only 'inconscionable, but also shows that reference to the request is a transparent fiction intended to lend spurious support to Consumers' attempt to deprive Intervenors of the opportunity properly to respond to hr. Climer.

Here again, the time constraints imposed on Dr. Timm, and the fact that in any event Mr. Climer makes pre-cisely the same errors as Mr. Keeley in dealing with the effects of a delay in construction of the Midland plant (see pages 65-79 of Dr. Timm's written direct testimony), caused Dr. Timm to omit the Climer testimony from his responsive Affidavit.

If the Board determines to allow the Climer testimony, Intervenors ask that Dr. Timm be granted the opportunity to file a brief response.

6.

Fisher Affidavit.

Even Consumers does not pretend that the May 19, 1977 Affidavit of Blake O. Fisher meets the "new matter" test established by the Bcard for additional rebuttal at this late date.

Instead, Consumers tells us only that the Fisher Affidavit--like the Climer Affidavit, previously dis-cussed--is submitted in response to a request by Dr. Luebke.

Intervenors object to the Fisher testimony on the same grounds as our objection to the Climer testimony, previously set forth.

Like the Climer testimony, the Fisher testimony is four months late and should not be allowed.

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, CONCLUSION For the reasons set forth herein, Intervenors other than Dow submit that the Board should deny the Motion of Consumers Power Company to admit the " rebuttal" testimony refe'rred to herein.

Further, if the Board determines to admit the Ringlee or Climer testimony, Intervenors submit that as a matter of fundamental fairness, Dr. Timm should be given an opportunity to file a brief supplemental Affidavit in response to that testimony.

Respectfully submitted, ll

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' ' ' 'w Dated:

May 26, 1977 Attorney for All Intervenors/

except Dow Chemical Company' l

MYRON M.

CHERRY One IBM Plaza Suite 4501 Chicago, Illinois 60611 (312) 565-1177

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