ML20077J451
| ML20077J451 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/11/1983 |
| From: | Steptoe P CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| 83-002232-CK-D, 83-2232-CK-D, ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8308160417 | |
| Download: ML20077J451 (19) | |
Text
, . August 11, 1983 ,
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ISHAM, LINCOLN & BEALE '
COUNSELOR 5 AT LAW 000'KETE0 USNRC THREE HRST NATIONAL PLAZA CHICAGO. BLUNOIS 60802 covanos isnAu. we nor TELEPH NE 312 $u M= '83 AUG 15 All ;02.or.o,nce
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ag7 gcpa 4 ,*guya mo cow =cgt,4venut. N w UNITED STATES OF AMERICA 0 F t lCE O F S E C H t f A ? ^S*E'", 3a '"
C NUCLEAR REGULATORY COMMISSIO@CXI:T SERVIU BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
) Docket Nos. 50-329-OM CONSUMERS POWER COMPANY ) 50-330-OM
) 50-329-OL (Midland Plant, Units 1 ) 50-330-OL and 2) )
Dear Administrative Judges:
Enclosed are Consumers Power Company's " Answer and Affirmative Defenses to First Amended Complaint," " Counter-claim" and " Notice of Taking of Depositions" in the Dow lawsuit. Note that most of the allegations in Dow's First Amended Complaint are denied as untrue.
In the future, Applicant does not plan to send the Licensing Board all the pleadings,' discovery materials, and so forth generated in the Dow lawsuit. We do however recognize our obligation under Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623 (1973) to keep the Licensing Board informed of new information which is relevant and material to the matters in controversy in this proceeding. We also note that since the case is being litigated in the Circuit Court for Midland County and doubtless will be thoroughly reported in the local media, intervenors may also acquire information about the Dow lawsuit and bring it to your attention. We do not intend to race intenvenors to the mailbox, nor will we send you notifications which are duplicative of information previously provided by the intervenors or the Staff. If this approach is not satisfactory please let us know.
Re y u *tted, L W D'( N%fs2 w _- q r l
cc: Service List 3 8308160417 830811 PDR ADDCK 05000329 1 0 PDR y ]
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Frank J. Kelley, Esq. Steve Gadler, Esq.
Attorney General of the 2120 Carter Avenue State of Michigan St. Paul, Minnesota 55108 j[
Carole Steinberg, Esq.
Assistant Attorney General Atomic Safety & Licensing Environmental Protection Div. Appeal Panel 720 Law Building U.S. Nuclear Regulatory Comm.
Lansing, Michigan 48913 Washington, D. C. 20555 Myron M. Cherry, Esq. _Mr. Scott W. Stucky Cherry & Flynn ",
Chief, Docketing & Services Suite 3700 - U.S. Nuclear Regulatory Comm.
Three First National Plaza Office of the Secretary Chicago, Illinois 60602 Washington, D. C. 20555 Mr. Wendell H. Marshall Ms. Mary Sinclair 4625 S. Saginaw Road 5711 Summerset Street Midland, Michigan 48640 Midland, Michigan 48640 Charles Bechhoefer, Esq. William D. Paton, Esq.
Atomic Safety & Licensing Counsel for the NRC Staff Board Panel U.S. Nuclear Regulatory Comm.
U.S. Nuclear Regulatory Comm. Washington, D. C. 20555 Washington, D. C. 20555 Atomic Safety & Licensing Dr. Frederick P. Cowan Board Panel 6152 N. Verde Trail U.S. Nuclear Regulatory Comm.
Apt. B-125' Washington, D. C. 20555 Boca Raton, Florida 33433 Ms. Barbara Stamiris Mr. D. F. Judd '5795-North River Road Babcock & Wilcox Route 3 P. O. Box 1260 Freeland, Michigan '48623 Lynchburg, Virginia 24505 Dr._ Jerry Harbour James E. Brunner, Esq. Atomic Safety & Licensing Consumers Power Company Board Panel 212 West Michigan Avenue U.S.. Nuclear Regulatory Comm.
Jackson, Michigan 49201 Washington, D. C. 20555' Lynne Bernabei Thomas Devine Louis Clark Government Accountability Project
- of the Institute for Policy Studies -
- 1901 Q Street, N.W.
Washington, D. C. 20009-l
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STATE OF MICHIGAN )
00CKETED IN THE CIRCUIT COURT FOR THE COUNTY OF MIOLAND USNRC
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E 15 Ati:02 THE DCN CHEMICAL COMPANY, {:~r 7 7 ,
Plaintiff, Case No. 83-002232-CX-0~
-vs-CONSUMERS PCNER COMPANY, Defendant.
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Herbert H. Edwards (P-13112) and Kirkland & Ellis Attorneys for Pialntiff Barris, Sott, Denn & Ortker By: Eugene Oriker (P-12959)
- Attorneys for Defendant
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ANSWER AND AFFIRMATIVE DEFENSES TO FIRST AMENDED CCMPLAINT Defendant, Consumers Power Company (" Consumers Power"), by its attorneys, Barris, Sott, Denn & Driker, for its answer and affirmative defenses to the First Amended Complaint states as follows:
GENERAL ALLEGATIONS
- 1. Admitted.
- 2. Adattted.
- 3. Consumers Power admits personal and subject matter jurisdiction, but neither admits nor dentes the allegations'as to the appropriateness of declaratory relief in this case.
- 4. Admitted.
- 5. Consumers Power admits that at the instigation of Dow, Consumers Power and Dow began discussions in 1966 concerning the supply of steals to Dow from a power plant to be constructed by Consumers Power, but denies that prior to that time it was planning to construct a nuclear power plant at l l I t . ,
Hidland and dentes that at the outset of such discussions any particular
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plant design had been selected.
- 6. Consumers Power admits that on or about December 13,1967, it and Oow executed a General Agreement which was amended and supplemented from time to time (the "1967 Contract"), the terms of which provided that the parties would later execute a centract under which Consumers Power would
, supply steam to Dow under the terms and conditions set forth therein, which steam service contract was in fact executed by the parties on or about January 30, 1974.
- 7. Cor.sumers Power admits that, as between itself and Dow, under the 1967 Contract it had and under the 1978 General Agreement it continued to have responsibility for the design, construction and operation of the Midland Nuclear Facility, subject to a variety of federal and state laws, regulations, rules and orders, and further subject to various other conditions, as set forth in the contracts.
- 8. Dented as untrue.
- 9. Consumers Power admits that the ,1978 General Agreement cancelled and superseded the 1967 Contract and the related 1974 water supply, electric service and steam service contracts, but denies the conclusory allegations as to the reasons for the parties executing the 1978 General Agreement.
- 10. Consumsrs Power dentes that the 1978 General Agreement is accurately excerpted in Paragraph 10.
COUNT I MISREPRESENTATION AND NON-0IS'Ct.OSURES
- 11. Denied as untrue.
- 12. Denied as untrue.
- 13. Denied as untrue.
- 14. Denied as untrue.
- 15. Dented as untrue.
- 16. Dented as untrue. Further answering Paragraph 16, Consumers Power states that (a) all information provided by it to Dow in connection with the negotiation and execution of the 19,5 General Agreement was true
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,and accurate, to the best of Consumers Power's then knowledge or belief, and
.(b) all such negotiations were merged in the 1978 Agreement, which, together
'with a December 30, 1969 electric service contract and a June 21, 1978 )
j jelectricservicecontract.containedtheentireagreementoftheparties
.with respect to the subject matter of the 1978 Agreement. f f
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- 17. Denied as untrue.
{ 18. Denied as untrue.
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,i 19. Dented as untrue.
- 20. Denied as untrue. .
- 21. Dented as untrue.
- 22. Admitted. Further answering paragraph 22, Consumers Power jstatesthatitnotifiedDowonApril 11, 1983, that Unit 2 of the facility was expected to be in commercial operation in February, 1985 and Unit I was expected to be in conumercial operation in August,1985.
- 23. Dented as untrue, except that Consumers Power admits that on July 14, 1983, Dow purportedly served a notice on Consumers Power that Dow was terminating the 1978 General Agreement and was reserving its rights to pursue other legal remedies. ensumers Power dentes the legal efficacy of such notice because of Dow's simultaneous unjustified repudtation of its contractual obligation to pay to Consumers Power the termination payment
' required under the 1978 General Agreement.
- 24. Denied as untrue.
COUNT II ,
SRF.ACH OF CONTRACT AND FIOUCIMr' OUTIES
- 25. The answers to paragraphs 1 through 24 are incorporated by i
reference.
i 26. Consumers Power dentes that its duties under the 1978 General I Agreement are accurately stated in Paragraph 26. Consumers Power dentes that it had a fiduciary relationship with Dow.
j 27. Cented as untrue.
, 28. Dented as untrue.
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- 29. Denied as untrue.
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' COUNT III 1
EXCUSE BY REASON OF FAILURE 0F FUNDAMENTAL ASSUMPTIONS
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- 30. The answers to paragraphs 1 through 24 are incorporated tiy i
Jreference.
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- 31. Dented as untrue.
f,i 32. Dented as untrue.
i COUNT IV J
1 CALCULATION OF TERMINATION PAYMENT UNDER SECTION 9 0F THE 1978 GENERAL AGREEMENT
- 33. The answers to paragraphs I through 24 are incorporated by i reference.
! 34. Dented as untrue.
l 35. Dented as untrue.
- 36. Consumers Power neither admits nor denies these allegations because it lacks sufficient knowledge as to what actions, if any, Dow may have tak'sn, and it leaves Dow to its proofs.
- 57. Denied as untrue. The 1978 General Agreement speaks for itself.
- 38. Denied as untrue.
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- COUNT V
! NEGLIGENCE
- 39. The answers to paragraphs 1 through 24 are incorporated by reference.
- 40. The 1978 General Agreement sets forth the respective duties of
. the parties. Consumers Power has fulfilled all duties required of ft. To
" the extent the allegations of this paragraph are to the contrary, they are
- dented as untrue.
! 41. Dented as untrue.
- 42. Denied as untrue. Any claims of negitgence are subject to the I ,
. doctrine of comparative negilgence.
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AFFIRMATfVE DEFENSES
- 1. Dow's claims are barred, in whole or in part, by the applicable i statute of limitations.
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- 2. To the extent that any of Dow's claims are based upon acts or omissions prior to June 21, 1978, they are barred by the provisions of the 1978 General Agreement.
- 3. Any delays or failures of Consumers Power in performance under the 1978 General Agreement, including but not limited to those relating to the projected completion dates, were caused by the exercise of authority or regulation by agencies of the governments of the United States and the State of Michigan, judicial or quast-judicial action and other causes beyond the
. reasonable control of Consumers Power, thereby excusing Consumers Power from any resulting liabillty to Dow, pursuant to Section 7 of the 1978 General Agreement and the doctrine of impossibility of performance.
- 4. Dow has failed to exercise its option to terminate the 1978 General Agreement In good faith.
- 5. By repudiating its obilgatico to make the termination payment ,
i required under Section 9 of the 1978 General Agreement, Dow has failed to exercise its option to terminate the 1978 General Agreement strictly in accordance with its terms and such purported termination was therefore (ineffective, li
- 6. Dow assumed the risk of non-completion of the Midland Nuclear 4
Fact 11ty within the projected time.
'.'. Having sought to effect termination of the 1978 Generalt
. Agreement, Dow has made an election of ramedies a'nd is thereby precluded jfromseekingotherrelief.
- 8. Neither punitive nor exemplary dam' ages are secoverable by Dow.
g 9. Oow has failed to mitigate its damages, if any, t:
1 10. Dow, by its owr, conduct, has waived its claims against Consumers 3lPowerorisesteppedfromseekingorobtainingreliefagainstConsumers Power.
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- 11. Any clales of negilgence by Cow are subject to reduction as a
- 4) result of Dow's comparative negligence.
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- 12. All negotiations between Dow and Consumers Power with respect to the 1978 General Agreement were merged into that contract, which, together with certain electric service contracts, contained the full agreement of the parties with respect to the subject matter of the 1978 General Agreem;ent.
- 13. With respect to each count of its First Amended Complaint, Dow has failed to state a claim upon which re11ef may be granted.
- 14. Consumers Power reserves the right to amend or supplement its affirmative defenses upon completion of discovery.
PRAYER FOR RELIEF WHEREFORE, defendant Consumers Power prays for a judgment of no cause of action in its favor and against The Dow Chemical Company and an award to Consumers Power of its costs and attorneys fees incurred in defending this action.
BARRIS SOTT, DEN D,,RIKER Sy- ZY Eugene Iker (P-12959)
Attorneys Defendant 2100 First ederal Building 1001 Woodward Avenue Detroit MI 48226 (313) 965-9725 August 5, 1983 i
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. . l STATE OF MICHICAN IN THE CIRCUIT CCURT FOR THE COUNTY CF MIDLANO i
JHE DON CHEMICAL COMPANY, Plaintiff, Case No. 83-002232-CX-0
-vs-(CONSUMERSPCHERCOMPANY, Defendant.
I Herbert H. Edwards (P-13112) and K1rkland & E11is Attorneys for Plaintiff Sarris, Sott, Denn & Driker Sy: Eugene Driker (P-12959)
Attorneys for Defendant
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COUNTERCLAIM Consumers Power Company, by its attorneys, Barris, Sott, Denn &
Drtker, counterciales against The Ocw Chemical Company as follows:
COUNT 1 Declaratory Judgment
- 1. Counter-plaintiff, Consumers Power Company (" Consumers Power"),
is a Michigan corporation with its principal place of business in the City of Jackson, Jackson County, Michigan. Consumers P6wer 1s engaged in the sale of electricity and natural gas in the State of Michigan, including Midiand County.
- 2. Counter-defendant, The Dow Chemical Company ("Dow"), is a Delaware corporation with its principal place of business at 2030 Dow Center
!intheCityofMidland,MidlandCounty, Michigan. Cow is engaged in the manufacture of chemicals and other products.
- 3. In 1966 Dow approached Consumers Power with the proposal that Consumers Power construct a nuclear powered cogeneration facility near Dow's i
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. . Midland manufacturing complex to provide both steam and electricity to Dow and additional electricity to the Consumers Power system. No such
' cogeneration facility using nuclear power had previously been used in the lunitedStatesforotherthanst11taryapplications. .
- 4. Dow and Consumers Power jointly sponsored a feasibility study
.for such a facility and jointly concluded that such a factitty was technically feasible and Itcensable under the then current standards of the
! United States Atomic Energy Consatssion.
- 5. The discussions and negotiations between Oow and Consumers Power culminated in a written contract between them, dated December 13, 1967, which, as later amended and supplemented, is referred to herein as the "1967
, Contract".
- 6. Under the 1967 Contract, Consumers Power agreed to butid a nuclear congeneration plant near the Dow Midland complex and the parties
, agreed to execute later a contract under which Dow would purchase steam therefrom. The parties entered into the steam service contract on or about January 30, 1974.
- 7. In 1977 and 1978 Dow and Consumers Power conducted lengthy negotiations to amend the 1967 Contract. Those negotiations, at which each party was represented by senior officers and by counsel, culminated in the execution of a new agreement on June 21, 1978 (the "1978 General Agreement"), a copy of which is attached to the original complaint in this jcauseandisincorpcratedhereinbyreference.
- 8. The 1978 General Agreement granted to,0ow an option to terminate q .
ltheAgreementunderIlmitedcircumstances,assetforthinSection9thereof.
! 9. Pursuant to Section 9 of the 1978 General Agreement, upon l exercise of its termination option Dow is obilgated to pay to Consumers Power a termination payment calculated as set forth therein and in the Coordination Manual provided for in Section 1.8 of the 1978 General Agreement, a copy of which is in the possession of Dow.
- 10. On or about July 14, 1983, Dow purportedly nottfled Consumers Pcwer that it was exeretsing its option to terminate the 1978 General
.' Agreement. Dow neither made nor tendered payment to Consumers Power of all I
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or any part of the termination payment required of it under the 1978 General Agreement, nor did it acknowledge its obilgation to make such payment.
- 11. In its notice of July 14, 1983 including the document attached thereto, Dow, without justification, repudiated its obilgation to make the termination payment required by the 1978 General Agreement.
- 12. By repudiating its obligation to make the termination payment required under Section 9 of the 1978 General Agreement, Oow has failed to exercise its option to terminate the 1978 General Agreement strictly in accordance with its terms and such purported termination is therefore ineffective.
- 13. By its notice to Consumers Power of July 14, 1983, and by Its First Amended Complaint filed in this Court, Dow claims that it has valfdly exercised its termination option under the 1978 General Agreement.
Consumers Power has dented the validity of Dow's action. An actual dispute exists between Consumers Power and Dow concerning the validity of Dow's exercise of its termination option, for which declaratory relief is appropriate.
COUNT 2 Money Judgment Against Oow for Bad Faith Breach of Contract
- 14. Consumers Power incorporates t'y reference paragraphs 1 through
, 13.
- 15. Dow owed a comon law and contractual duty to Consumers Power to perform 1ts obilgations under the 1978 General Agt'eement in good faith and only to exercise the termination option granted it thereunder in good faith.
- 16. Upon information and belief. Dow's purported termination of the 1978 General Agreement was undertaken in bad faith, in breach of Cow's obligations to Consumers Power.
- 17. As a direct and proximate result of Dow's bad faith exercise of t
the termination option Consumers Power has suffered damages in excess of
,$10,000 and will continue to suffer damage in the future.
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- COUNT 3 Money Judgment Against Oow For Termination Payment
- 18. Consumers Power incorporates by reference paragraphs 1 through
'.13 .
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- 19. Dow has unjustifiably repudiated its contractual obligation to
- make the termination payment required of it under the 1978 General Agreement.
- 20. Consumers Power is contractually entitled under the 1978 General
,' Agreement to the termination payment from Dow, in an amount in excess of
$10,000.
.I I Relief I
WHEREFORE, Consumers Power prays for the following relief:
i (a) Entry of a declaratory judgment that Dow has fatted validly to
' exercise the termination option under the 1978 General Agreement and that it i
- has breached that contract;
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(b) Entry of a judgment in its favor and against Dow in an amount (in excess of the $10,000 jurisdictional limit of this Court) equal to (1) the full termination payment provided for under the 1978 General Agreement,
.and (11) all other damages incurred by Consumers Power as a result of Dow's conduct, and interest as provided by law; (c) An award of Consumers Power's costs and attorneys fees; and
, (d) All other relief to which Consumers Power is entitled.
BARRIS, TT, DEMN RIKER By:
Eugene r r (P-12959) i' Attorneys f fendant and Counter-plat ff 2100 First Federal Building 1001 Woodward Avenue 3
Detroit, MI 48226 y (313) 965-9725 r
DATE: August 5, 1983 i
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-. STATE OF M8CH8GAN IN THE CIRCUIT COURT FOR THE COUNTY OF MIDLAND _
THE 00W CHEMIC/L CCHPANY,
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Case No. 83,-002232-CK-D
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Barris', Sott, GerA & Drlker * '
By: Ewene Delkar (P-12959) i s
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s NOTICE OF TAKING OF.0EPOSIIIONS / ' , , ,', ,
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Law Offices of Herbert 11. Edwards, P.C. '. w -
2612 Ashman,P.O.Sc5.]883 , '
4 Midlahd, MI 48640 ,'~ ,m. N,.,N -
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ANO: Samuel'A. Haubold, Esq.s
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Pursuant to the'provitl9ns of Chapia_r 30 cf. tes;MichigaQe1Ierst : ,
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Midlan'd, Michiga'n, cwunencinq at, th'e dXces and tbts indicated. The N s s
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Nare of Def.c.nenj.' & ,
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, The corpoidte secret?f'/. .s [ Thursday,Augt,:t 18, 1983 ', 10:00 a'.'m**f i ' * '
. . < or other custodl e of records-e' - ' ?* y' of The Dow Chemib 1 Crapany '
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'. Commencement Date Time Name of Deconent Remigius A. Gaska Tuesday, Septem0er 6, 1983 10:00 a.m.
D. D. DeLine Tuesday Septemcor 13, 1983 10:00 a.m.
James R. Burroughs Tuesday, September 27, 1983 10:00 a.m.
Michael R. Clayton Tuesday, October 11, 1983 10:00 a.m.
i BARRIS, S T, DENN & DRIKER By:
Eugen I sx.
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Attorneys f endant and Counter-P ff 2100 First F al Building 1001 Woodward Avenue Detroit, MI 48226 (313) 965-9725 4
DATE: August 5, 1983 i
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j SUBPOENA FOR
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- AND FOR PRODUCTION f vs. OF DOCUMENTS 1
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IN THE NAME OF THE PEOPLE OF THE STATE OF MICHIGAN:- -
70s.VM.99XEt9E9tA.8199F.Ett:4TE AT.9%rW.. .
custodian of rooxds of The Dow (asAs.) . . . .. ...QW91GA . ISGWR4W.. . . . . . . . . . . . . . . . . . . ..
You are - w that, laying aside all and singular your business and escuses, you be and appear at. . . . 3 .5 0 0. . .E. .. M. .i.l. .l.e. r. . .R. .o.a. .d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a the
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. .. ....Am.=.%.18. ,,, , ,,,,,. . . ....., i,. , p.3, . .l.0 .g.0.. iocu is the. ...:9x ,,, con to ,i,e you, deposis. -t to .oisce of + w given by....r.noaneex.P.sv.er.s9mAoZ...........,
proof of service of such notice having been Ed. and that you bring with you and then and there produce.
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. ..... . .E.x.h.i. b. .i. t. . .A. . .a. t.t ac he. .d now is your custody, or under your control, and an other....... ............ ...........................
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l aLd for fagure so to attend and to produce the said. ........................... ......... . ... .. ... ......
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you wGI be deemed guilty of a Contempt of said Court.
WITNESS, The Honorable.....D,ay,i,d,,Sf,,DAV19....................... Judge of said Cirenit Court, at the C1 cuit Court Roose, is....li1@l4R44..UACMSAo..................in said County, on
.. . . P.ti . A . , , , , , . . . .. . . , ., 3 9, , $3, s for Defendant Chrk.
BUSIN ADDAESS: 3y...........................................
l BARRIS, SOTT, DENN ti DRIKER Deputy Clerk.
' 2100 First Fe4py'gl p"qild~kog"""""'
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EXHIBIT A Definittoni As used heretn:
- 1. " Document" means any medium upon which intelligence or information can be recorded or retrieved, and includes, without ilmitation, the original and each copy, regardless of origin and location, of any book, pamphlet, periodical, letter, memorandum (including any memorandum or report of a meeting or conversation), invoice, bili, order form, receipt, financial statement, accounting entry, diary, calendar, teles, telegram, cable, report, record, contract, agreement, study, handwritten note, draft, working paper, chart, paper, print, laboratory record, drawing, sketch, graph, inden, list, tape, photograph, microfilm, data sheet or data processing card, or any other written, recorded, transcribed, punched, taped, filmed, or graphic matter, however produced or reproduced, which is in your possession, custody, or control or which is in the possession, custody or control of Dow,
- 2. "Dow" means plaintiff, The Dow Chemical Company, any and all parent, subsidiaries, divisions. affiliates or other bustness entitles owned, in whole or in part, or controlled, directly or indirectly, by The Dow Chemical Company.
- 3. " Midland Nuclear Fact 11ty" means the nuclear power plant described in paragraph 5 of Dow's First Amended Complaint in this case.
- 4. The "1967 Contract" means the agreement, including teendments and supplements, described in paragraph 6 of Dow's first Amended Complaint in this case.
- 5. The "1974 Service Contrac ;" men'ns the agreements between Dow and Consumers Power Company, all dated January 30, 1974, for electric I
service, steam service and water supply.
- 6. The "1978 General Agreement" means the contract attached as Exhibit A to Dow's original Complaint in this case.
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- 7. The "1978 Electric tervice Agreement" means the agreement for l
I electric servtce between Dow and Consumers Power Company, dated June 21, 1978.
- 8. " Commercial Steam Operation Date" means the date as so defined in the 1978 General Agreement.
Documents to be Produced
- 1. All Documents relating to the negotiation, execution, interpretation, performance or termination of the 1978 General Agreement including, without limitatten, each of the following subjects:
- a. Dow's motivation and objectives in renegotiating the 1967 Contract and the 1974 Service Contracts;
- b. Dow's strategy in the negotiations which culminated in execution of the 1978 General Agreement;
- c. Dow's analysts of the differences between the 1967 Contract and the 1974 Service Contracts, on the one hand, and the 1978 General Agreement and the 1978 Electric Service Agreement, on the other hand;
- d. Any consideration by Dow of whether or not and when to exercise its option to terminate the 1978 General Agreement and/or the 1978 Electric Service Agreement and the consequences thereof;
- e. Dow's financial obligations to Consumers Power Cempany upon exercise of its option to terminate the 1978 General Agreement and/or the 1978 Electric Sera 1ce Agreement;
- f. Dow's motivation and objectives in ultimately electing to terminate the 1978 General Agreement and to contest any obligation to make a termination payment to Consumers Power Company;
- g. Dow's analysts of: (1) the completion date and/or the Cossnercial Steam Operation Date of the Midland Nuclear Factitty; (11) the cost of the Midland Nuclear Facility; '
and (111) the commercial reasonableness of the cost of steam to Dow under the 1978 General Agreement;
- h. Selection of the December 31, 1984 deaditne, as 1t appears in the 1978 General Agreement;
- l. Consideration by Dow of alternative sources of process steam for Dow's Midland fact 11ttes.
- 2. All Documents which, in whole or in part, relate to, evidence ior negate:
i
- a. Dow's alleged placing its complete faith, trust and confidence in Consumers Power Company for the design, construction and operation of the Midland Nuclear Facility (Paragraph 8 of Dow's First Amended Complaint); j 2-
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l b. The alleged material misrepresentations and non-disclosure of Consumers Power Company during the negotiations leading to execution of the 1978 General Agreement (Paragraph 11 of Dow's First Amended Complaint];
r c. The alleged false and misleading appearance by Consumers
! Power Company during the negotiations leading to l execution of the 1978 General Agreement that the construction r>f the Midland Nuclear Facility was proceeding normally (Paragraph 14 of Cow's First Amended Complaint];
f
- d. The alleged spectftc rsquest made by Dow to Consumers Power Company insnediately prior to the execution of the 1978 General Agreement for any information adversely reflecting on the status and schedule of the project (Paragraph 15 of Dow's First Amended Complaint];
- e. The response of Consumers Power Company to Dow's specific i request, as referred to in paragraph (d) above; I
- f. Dow's knowledge of each fact alleged in Paragraph 19 of Dow's First Amended Complaint;
- g. The alleged falso and material misrepresentations made by Consumors Power Company (Paragraph 21 of Dow's First Amended Complaint];
- h. Dow's knowledge on and after June 21, 1978 of (1) the cost of the Midland Nuclear Facility; (11) the cost to Dow of process steam from the Midland Nuclear Fact 11ty; (111) the schedule (and any revisions thereof) for completion of the Midland Nuclear Facility for commercial operation for process steam; (tv) the compaction of the fill in the soll upon which the Midland Nuclear Faclltty was to be built and any related soll and construction problems and issues; (v) the settlement of any building wtthin the Midland Nuclear Facility.
I 1. Dow's knowledge of the settlement of the diesel generator building at the Midland Nuclear Facility;
- j. The notification of Dow by Consumers Power on or about April 11, 1983 of the antl'cipated Commercial Operation Date.
- 3. All Documents which, In whole or in part, relate to, evidence l or negate:
1
- a. The portion of the expenditure of more than $60 million (Paragraph 24 of Dow's First Amended Complaintl that was incurred by Dow on or after June 21, 1978;
- b. Additions, repairs and modifications to Dow's boilers and/or steam supply system undertaken after June 21. 1978.
- 4. All Documents which in whole or in part relate to Dow's actual ,
I and projected steam supply needs at Midland on and after the commencement date of the negotiations leading to the execution of the 1978 General j Agreement.
- 5. Those portions of all agendas for Documents presented at, and minutes of, meetings of the Board of Olrectors, Executive or other committees of the Board of Directors, and/or other committees of senior management, of Dow which relate to:
I a. the Midland Nuclear Fact 11ty; Relocation, expanston, contraction or changes in Dow's lj b.
manufacturing or other processes located at Midland, in whole or in part, prepared since January 1, 1975;
- c. The 1978 General Agreement (including its renegotiation and purported terstration);
- d. Payment by Ocw of the amounts due under the 1978 General Agreement upon exercise of Dow's option to terminate.
- e. Expenditures on Dow's steam supply system;
- f. Consideration by Dow of a*ternative sources of process steam for Dow's Midland factlltles.
- 6. All press citppings, news releases and similar reports given to or pubitshed in the media concerning the Midland Nuclear Facility, from January 1, 1977 to July 14, 1983, both inclusive.
- 7. A11 Occuments issued by or submitted to the IJnited States Nuclear Regulatc,ry Commission with respect to the Midland Nuclear Facility from January 1, 1977 to July 14, 1983, both inclusive.
- 8. All Occuments issued by or submttted to the Michigan Public l
~
Service Commission with respect to the Midland Nuclear Facility from January 1. 1977 to July 14, 1983, both inclus.tve.
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