ML19344A140: Difference between revisions
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/ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 01- | / UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 01- | ||
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y 4\,g b | y 4\,g b | ||
6yh s Tf** | 6yh s Tf** | ||
H4 Before the Atomic Safety and Licensing Boar D y | |||
H4 | |||
Before the Atomic Safety and Licensing Boar D y | |||
'r y l* | 'r y l* | ||
./ | ./ | ||
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-(Midland-Plant, Units 1 and 2) ) | -(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' | |||
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. | 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 | Licensee's underlying objection to the admission | ||
Line 53: | Line 40: | ||
; -their introduction which thereby deprives Licensee of its right'to inquire into the foundation and relevancy of the | ; -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 | : 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 | ||
~ | ~ | ||
* - ; | * - ; | ||
rh | rh | ||
, m - | , m - | ||
. ~ . | . ~ . | ||
of Factiand; Conclusions of Law,.and' fully seven weeks-after | 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 | |||
!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 | . 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. | - June 18,."1977" Motion with r'egard to a - previous - attemp t by. | ||
Line 84: | Line 55: | ||
: proceeding. 'While in~this proceeding, some latitude had to | : proceeding. 'While in~this proceeding, some latitude had to | ||
' b'e permitted b'ecause of' continuing discovery during the | ' 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. ' | |||
' 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 | : of' foundation, relevancy, materiality. and hearsay. ** To | ||
- allowpintroduction of these documents-at this-late date would' | - allowpintroduction of these documents-at this-late date would' i; , | ||
i; , | |||
\ | \ | ||
We would noteEthat Intervenors.did not even trouble-to deliver- ' | 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 ! | : copies;ofJall of the!proposedLexhibits with.the Motion and that copiestof someiof theseLdocuments were not mailed-to parties ! | ||
. .until thejfollowing week. | . .until thejfollowing week. | ||
I | I | ||
* LWe'would-also:pointiout that-Intervenors have attempted to-do 1just thislduring theLhearings by-~ simply taking documents which | * 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 | ' - 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 ' | 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 | , :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 | |||
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 | - own1" context"uforq such documents Land to chracterize then Ein | ||
' JwhateverJmariner'suitsi their own : ends. | ' JwhateverJmariner'suitsi their own : ends. | ||
) | ) | ||
F | F | ||
.,_ ;~ | .,_ ;~ | ||
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eliminate'al'1 possibility of'a fair inquiry into their import | eliminate'al'1 possibility of'a fair inquiry into their import | ||
~ | ~ | ||
Line 143: | Line 83: | ||
[. | [. | ||
twould point out1that some of these. documents are apparently. | 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 | 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. | ||
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. | 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 | n j' Licensee does not' object,-in principle, to.the idea-that | ||
: newly discovered evidence can be introduced, and merely. | : newly discovered evidence can be introduced, and merely. | ||
l-b points out that the Rules-of Evidence would still govern l | l-b points out that the Rules-of Evidence would still govern l | ||
J such a! document's admissibility. However,.Intervenors' | J such a! document's admissibility. However,.Intervenors' proposed' Exhibits 60A, 78 and 81 do.not post-date the hearing. | ||
proposed' Exhibits 60A, 78 and 81 do.not post-date the hearing. | |||
'Those documents which'are " newly discovered", proposed | 'Those documents which'are " newly discovered", proposed | ||
' Exhibits 179,D90 and 82,'are objectionable on other grounds l i | ' Exhibits 179,D90 and 82,'are objectionable on other grounds l i | ||
Line 158: | Line 94: | ||
SIntervenors'' Proposed Group Exhibit 60A This.; proposed exhibit, a volume prepared by l | SIntervenors'' Proposed Group Exhibit 60A This.; proposed exhibit, a volume prepared by l | ||
.} | .} | ||
The" Dos Chemical' Company'(Dow)Las an~ attachment to the Dow a | The" Dos Chemical' Company'(Dow)Las an~ attachment to the Dow a 1 | ||
i c | |||
c | |||
l | l | ||
Line 170: | Line 101: | ||
p | p | ||
?-%, | ?-%, | ||
, ? A: | , ? A: | ||
4-I ' | 4-I ' | ||
-Memor'andumlRegarding Hearing Preparation of. December 22, 1976, | -Memor'andumlRegarding Hearing Preparation of. December 22, 1976, | ||
Line 181: | Line 107: | ||
the' completion of theLhearing. In addition,'the objections which Licensee made in its June 8, 1977 motion to-Intervenors'- | 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: | 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 | |||
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 ~ | Board,-by its order-at Tr. 502-03 and Tr. 516, has removed ~ | ||
this :questi^ . from. the substantive questions to be decided | this :questi^ . from. the substantive questions to be decided | ||
'in this proceeding,'and has indicated that it will be decided | 'in this proceeding,'and has indicated that it will be decided | ||
? | ? | ||
separately. | separately. | ||
i | i | ||
'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 | '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. | , 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 | 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. | |||
anore, antitrust is clearly not an issue in this. proceeding,. | 3" E | ||
s< | |||
;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 | |||
3" | |||
r | r | ||
# r, 9 . 3 4 w ..is gg .m y- ,, y .- | # r, 9 . 3 4 w ..is gg .m y- ,, y .- | ||
g. | g. | ||
^ | ^ | ||
: i. , 1 ' ' | : i. , 1 ' ' | ||
g t _ | g t _ | ||
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'Intervenors'~ Proposed Exhibit'79- | '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 | .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 | ||
Line 228: | Line 136: | ||
: accuracy cannot be tested. A Licensing Board which | : accuracy cannot be tested. A Licensing Board which | ||
. previously considered the issue of . admissibility, of newspaper | . 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 | ; 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 | , asserted'within them.' Illinois Power Company (Clinton Power | ||
; - | ; - | ||
Station, Units 1 and 2)'LBP-75-59, NRCI-75/9, pp. 579-630 | Station, Units 1 and 2)'LBP-75-59, NRCI-75/9, pp. 579-630 | ||
-(September 30,.11975). 'That Board. based-its rulingfon the | -(September 30,.11975). 'That Board. based-its rulingfon the | ||
, tfact that there was insufficient assurance of the-truthful-p | , tfact that there was insufficient assurance of the-truthful-p | ||
~ | ~ | ||
ness of the facts' contained in the material, and cited much | ness of the facts' contained in the material, and cited much 1 | ||
I# judicialLauthoritylin. support of its finding,.Id. at 588. | |||
i | i | ||
.In the ' instant proceeding,- the Chairman has indicated that j I | .In the ' instant proceeding,- the Chairman has indicated that j I | ||
Line 246: | Line 150: | ||
, "obviously; hearsay" (Tr. 3284).- j g- _ | , "obviously; hearsay" (Tr. 3284).- j g- _ | ||
Interven' ors' Proposed Exhibit 80 | Interven' ors' Proposed Exhibit 80 | ||
'This; document, an interim Report concerning the. | '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. | |||
: 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. | |||
i _- . .K | i _- . .K | ||
* 4 t | * 4 t | ||
Line 265: | Line 158: | ||
i * | i * | ||
. 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. | |||
. 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. | - 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 | , Although:Intervenors offer no convincing explanation of-its l | ||
Line 278: | Line 164: | ||
Intervenors' Proposed Exhibit 82 | Intervenors' Proposed Exhibit 82 | ||
,This document is an-NRC Staff Safety Evaluation > | ,This document is an-NRC Staff Safety Evaluation > | ||
concerning Licensee's Palisades Plant. . Despite the fact | 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 | , 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 | ||
( | ( | ||
objection:is reinforced 1by the-use to which this document was-put byiIntervenors in.their Findings, .for as Licensee | 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.- | ||
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. | |||
6 | 6 | ||
.. . . - .; _ - | .. . . - .; _ - | ||
~ | ~ | ||
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. | 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. | ||
Line 302: | Line 177: | ||
~ 'Dav-iti J / Ros5o' i | ~ 'Dav-iti J / Ros5o' i | ||
fu%&cJ & ctM . | fu%&cJ & ctM . | ||
R. Rex Renfrow,/ III | 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 | |||
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 | |||
l | l | ||
[ Isham, Lincoln:& Beale l | [ Isham, Lincoln:& Beale l | ||
One First' National Plaza Suite 4200 | One First' National Plaza Suite 4200 | ||
-Chicago,' Illinois 60603 July 22, 1977 i | -Chicago,' Illinois 60603 July 22, 1977 i | ||
i s | i s | ||
;..' ~ | ;..' ~ | ||
1\I?) | 1\I?) | ||
/, %, | /, %, | ||
u.o | u.o | ||
/1 (W; q | /1 (W; q | ||
Line 327: | Line 193: | ||
3 5 \*Jg 7 f.:: w | 3 5 \*Jg 7 f.:: w | ||
' UNITED STATES OF AMERICA ! U k | ' UNITED STATES OF AMERICA ! U k | ||
-NUCLEAR REGULATORY' COMMISSION y "* ih.aa | -NUCLEAR REGULATORY' COMMISSION y "* ih.aa | ||
'\4 , 8 Before~'the Atomic Safety and Licensing Boa ~ N'I'" | '\4 , 8 Before~'the Atomic Safety and Licensing Boa ~ N'I'" | ||
) | ) | ||
Line 336: | Line 200: | ||
CONSUMERS POWER _. COMPANY ) Docket Nos. 50-329 | CONSUMERS POWER _. COMPANY ) Docket Nos. 50-329 | ||
~)- 50-330 (Midland Plant, Units 1 and 2) )- | ~)- 50-330 (Midland Plant, Units 1 and 2) )- | ||
) | ) | ||
) | ) | ||
Line 343: | Line 206: | ||
I hereby certify that copies of the attached | I hereby certify that copies of the attached | ||
" OBJECTIONS-OF CONSUMERS POWER COMPANY TO THE ADMISSION | " OBJECTIONS-OF CONSUMERS POWER COMPANY TO THE ADMISSION | ||
-INTO-EVIDENCE OF CERTAIN DOCUMENTS TENDERED BY-ALL | -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: | ||
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: | |||
l l | l l | ||
; | ; | ||
Line 353: | Line 214: | ||
-10807 Atwell of the Commission Houston,ETexas 77096 U.S. Nuclear Regulatory Comm. * | -10807 Atwell of the Commission Houston,ETexas 77096 U.S. Nuclear Regulatory Comm. * | ||
' Washington, D.C. 20555 | ' Washington, D.C. 20555 | ||
_y c- w-m | _y c- w-m | ||
+ | + | ||
8 | 8 | ||
. s. . | . s. . | ||
o | o | ||
'~ | '~ | ||
:2 e | |||
:2 | |||
e | |||
; Dr..[Emmeth A.'Luebke Richard Hoefling, Esquire | ; Dr..[Emmeth A.'Luebke Richard Hoefling, Esquire | ||
- Atomic-Safety,and Licensing- Counsel for NRC' Staff Board Panel U.S., Nuclear Regulatory Comm.. | - Atomic-Safety,and Licensing- Counsel for NRC' Staff Board Panel U.S., Nuclear Regulatory Comm.. | ||
- U.S. Nuclear ~ Regulatory Comm.. Washington, D.C. 20555 | - U.S. Nuclear ~ Regulatory Comm.. Washington, D.C. 20555 | ||
_ Washington, D.C. 20555 | _ Washington, D.C. 20555 L '. F. Nute, Esquire , | ||
L '. F. Nute, Esquire , | |||
_ Myron M. Cherry, Esquire- Legal Department | _ Myron M. Cherry, Esquire- Legal Department | ||
- One IBM Plaza Dow Chemical U.S.A.~ | - One IBM Plaza Dow Chemical U.S.A.~ | ||
Line 381: | Line 232: | ||
- U.S. Nuclear Rbgulatory Comm. | - U.S. Nuclear Rbgulatory Comm. | ||
Washington' , D.C. .20555 | Washington' , D.C. .20555 | ||
$b N uu w Caryl A. Bartelman Counsel for | $b N uu w Caryl A. Bartelman Counsel for | ||
' Consumers Power Company | ' Consumers Power Company Isham,-Lincoln:& Beale One First' National Plaza-Chicago,~ Illinois- 60603 312/786-7500 July 22, 1977 i | ||
l 1 - | |||
Isham,-Lincoln:& Beale One First' National Plaza-Chicago,~ Illinois- 60603 312/786-7500 July 22, 1977 i | 1 I | ||
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1 I l | 1 I l | ||
4 1, | 4 1, en._ | ||
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f * --9}} |
Revision as of 07:43, 31 January 2020
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) | |
Text
.
9? 4e f( <0 %
ce *t#' Y 2 I c %h. ..
/ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 01-
y 4\,g b
6yh s Tf**
H4 Before the Atomic Safety and Licensing Boar D y
'r y l*
./
)
In the Matter-Of )
)
CONSUMERS POWER COMPANY ) Docket Nos. 50-329
) 50-330
-(Midland-Plant, Units 1 and 2) )
)
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
(
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
~
- - ;
rh
, m -
. ~ .
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
- ~
- 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; ,
\
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.
I
- 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.
)
F
.,_ ;~
~
~
eliminate'al'1 possibility of'a fair inquiry into their import
~
and would .also violate the basic policy. against surprise (we
[.
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
~
ness of the facts' contained in the material, and cited much 1
I# judicialLauthoritylin. support of its finding,.Id. at 588.
i
.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
(
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
l
[ 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'"
)
In the Matter.of )
)
CONSUMERS POWER _. COMPANY ) Docket Nos. 50-329
~)- 50-330 (Midland Plant, Units 1 and 2) )-
)
)
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:
l l
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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