ML19344A202

Intervenors' Response to Util 770722 Objections to Admission Into Evidence of Certain Addl Exhibits by Intervenors.Util Objections Frivolous & Barred by Record

ML19344A202
Person / Time
Site:	Midland
Issue date:	07/26/1977
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8008060549
Download: ML19344A202 (6)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION epYQ #

Before the Atomic Safety and Licensing Board sy In'the Matter.of )

~) Docket Nos. 50-329.

CONSUMERS POWER COMPANY )70-330

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(Midland Plant, Units 1 and 2) ) l INTERVENORS' RESPONSE TO OBJECTIONS BY CONSUMERS POWER COMPANY TO THE ADMISSION INTO EVIDENCE OF CERTAIN {

ADDITIONAL EXHIBITS. OFFERED BY INTERVENORS l Consumers Power Company under date of July 22, 1977 filed a document objecting to certain additional Exhibits which were offered by Intervenors in connection with the filing  !

of their Findings. Consumers Power-Company incorporates, in its most recent filing, its general objections to documents tendered earlier.

'We herewith show that Consumers Power Company's objections.are frivolous and are barred by the record.

As Consumers admits, and as the record shows, a stipu-lation-among all'of the parties as to both foundation and

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identification of documents was entered into. This stipulation, produced below, is-found at pages 2396 beginning at line 21, through'2398, line 18. It provides:

"MR, CHERRY: Mr. Chairman, we are going to run into a problem with the Dow witnesses.about identification of documents. -And I would just like to know if I can get a' stipulation from the Staff, from Dow Chemical and from Consumers Power Company that with respect to documents produced, pursuant to a re-Equest that were released by the Board order, that foundation is in effect waived. .I am not talking about relevancy or privilege or anything else.

But. I 'will' have an awful lot of documents ~ that I want to mark. And_a lot of them are authored by Mr.

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Temple-although they have a lot of carbon copies for a lot of people, .to go around.

But I'just wantito know if we can operate under-the assumption that it is not necessary for a witness from Dow to say; yes, that is-a true and correct copy of what it purports to be as a foundation for it to be admitted in evidence, if it in fact was produced by Dow and Dow's counsel will vouch for it.

And I would agree to the same thing insofar as Consumers is concerned, the other way.

'In other words, if Consumers' lawyers-say that this is a document which was produced on dis-covery and in fact it was, I won't require any foundation. And that will solve a whole lot of problems, i

Would you agree, Mr. Wessel?

MR. WESSEL: Of course, if this is a stipulation of authenticity.

I should say in response to Dr. Leeds' request, some of'the typing was done from notes, and that was done by secretaries and I hope they are correct. That is not true of exhibit 25. We

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, can identify those as they-appear. I would hope i that there would be a stipulation of the authen-ticity of documents produced by us.

MR. CHERRY: By anyone.

Would you agree to that? l MR. HOEFLING: Yes. l l

MR. RENFROW: Just as the authenticity. l i  !

MR.l CHERRY:. Yes, just authenticity.

So<if I want to introduce a letter signed by Mr.

Temple and I have it marked when Mr. Temple is l

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not here, I won't-need him to identify the letter.

.And-I-can offer it in evidence; is that agreed?

MR..RENFROW: Yes.

MR. CHERRY: Okay.

BY MR.' CHERRY:

, Q. Now we have in effect a stipulation this is an authentic document. .And I would ask you if you would take a'look:at paragraph ~four of this document on

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page three, and ask if you-anyone ever informed you of the Falahee threat that is

-' contained on that page?

1HR. CHERRY: Does the Board have a copy of these documents?

CHAIRMAN COUFAL: -Yes."

At'Tr. pages 4710-11, the Chairman of the Board later ,

clarified. the evidentiary stipulation when there was some objec-tion to'the offering of certain Exhibits. The relevant passage 3~

is as follows: .

"MR.-CHERRY

Well, I-don't know what kind of objections the other parties can have.

They have all been marked and identified. l i

We had a stipulation on-the record by all of the parties that there was to be no objection with. respect to authenticity because all the documents came from business records. 1 CHAIRMAN COUFAL: Yes. I suppose it would

, be relevancy?"

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It is_ absolutely clear from the stipulation that any document produced through discovery was automatically admissible, j subject to relevancy, and no objection as to identification or foundation is~ permissible or was ever intended by the parties.

If one peruses the most recent response of Consumers, let alone their earlier _ response, the Board will find that Consumers and.its attorneys are merely going back on their word, which 'should not be permitted - (even -though it might be expected) .

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-Thus, at page 6 of Consumers' response of July 22, 1977 (and its earlier ' documents) , Consumers offers the objection to Exhibit 81 on theigrounds:- I "It was not identified at the. hearing [and]

.therr has-been no' foundation provided for the document." )

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.-c No'further argument need b,e'made to demonstrate that the only objection remaining to Consumers (or the other parties to the

, proceeding) ~is one of relevance. ,Neither the Staffinor Dow Chemical supports Consumers in its position.

We now respond briefly, from the standpoint of rele-

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.vance, to..the objections of Consumers concerning the documents which it-refers to in its July 22, 1977 offering. We point out in passing.that the " surprise" argument by Consumers is a~1ot of " baloney" since the' documents are either its own or have been received by . them sometime ago (and Consumers admits that discovery-has been ongoing throughout the proceeding and so there is no possible-way if that were ever a rule, that all documents-should be marNed at the beginning of the hearing).

Indeed all documents have not as yet been received.

Our most'recent offerings are relevant for the following reasons:

' Group Exhibit.60A.- This is relevant because it deals-i with the manipulation of testimony and honesty has always.been

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an issue in any judicial proceeding. 'Moreover, it goes to show n

4' the. extent of.the disagreements between Dow and Consumers.

Exhibit.78'. The. anti-trust memorandum is relevant (and since,itLis the' Board's document it'can~take administrative

- notice of'the' document) because an examination of the Dow-Consumers relationship from an. anti-trust standpoint could well

-impact upon the cost-benefit analysis .

, Exhib'it 79. .The point about to be made-about the liner '

. plate issue is;that it is.'onefof many things-which could impact g , - , N , , , . , w s r' - w a

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.. ~s on'the timingand cost of.. construction and-thus is relevant.

Consumers'. assertion'that the article's accuracy cannot be \

. tested m9at fall on deaf ears because the article was written from1information supplied by Consumers.

Exhibit 80.. The liner plate controversey i= an example of quality assurance and quality control problems. Even.

L assuming arguendo that quality assurance and quality control are not issues, it.would be relevant because it is the kind of thing that directly impacts upon cost and timing of construction.

Exhibit 81. Consumers admits the relevancy of the document and even its authenticity'because of the admission "it is-a compilation" by' Consumers. The objection as to identification and-foundation is barred by '.he stipulation and also by the fact

'that a' party cannot deny the authenticity of its own document.

Exhibit 82. The NRC Staff safety evaluation concerning Palisades is'a document filed by the Staff and was prepared after consultation with Consumers. It is relevant and must be admitted into evidence. Moreover, the. Board does not have to blind its eyes as to administrative filings in the record.

s Consumers' real objection is the assertion that we-have incorrectly quoted the report, an objection met simply:Isy Board reading  !

the-report.

We trust we have now put to rest Consumers'. faulty

. objections:and their attempts to go back on the word of their l

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lawyers as to the agreement.

Resp tfu ly submitted, J

Dated: ' July 26, 1977 Attorn bW'l 80

or all Interkenors except 1 Chemical Company MYRON M. CHERRY I

.One IBM Plaza, Suite 4501 Chicago, Illinois 60611 (312) 565-1177 l 1

l PROOF OF SERVICE I hereby certify that that "Intervenors' Response to Objections i by Consumers Power Company to the Admission into Evidence of Certain Additional Exhibits Offered by Intervenors," " Supplemental Statement of Intervenors Other than Dow Chemical Company Concerning Responsive Findings and Responsive Brief of Consumers Power Company,"

and a letter to the Board dated July 26, 1977 were delivered by Federal Express messenger to arrive in the Board's hands by  ;

July 27, 1977, A.M., in.the affice of Frederic J. Coufal, Esq., l Chairman, .nd that copies were mailed to Mr. C. R. Stephens, Chief, Docketing and Service Section, Office of the Secretary of the-Commission, Washington, D. C., to counsel for Consumers Power l

Company, the Regulatory Staff and Dow Chemical Company, pos age prepaid and properly addressed,on July 26 1977.

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