ML19339C909
| ML19339C909 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 02/09/1981 |
| From: | Bradley Jones NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8102120293 | |
| Download: ML19339C909 (9) | |
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- ED UNITED STATES OF N! ERICA 2/9/81 NUCLEAR REGULATORY J0MMISSION s
4 C [0RETHEATOMICSAFETYANDLICENSINGBOARD In the Matter CONSUMERS POWER COMPANY Docket Nos. 50-329-0M & OL 50-330-0M & OL (Midland Plant, Units 1 & 2)
MOTION FOR RECONSIDERATION OR REFERRAL OF LICENSING BOARD'S RULINGS OF JANUARY 29, 1981 On January 19, 1981 Consumers Power Company (Consumers) filed a motion to compel the deposition of Mr. Naidu.
On January 23, 1981 Consumers filed a motion to compel the deposition of Harold Thornburg, and a motion to compel the deposition of Gaston Fiorelli.
The NRC Staff files a response opposing deposition of Mr. Naidu.
However, Consumers other notions to compel did not arrive in time for a written response prior to the Pre-hearing Conference held on January 29, 1981.
The Board ruled from the bench denying the Staff's request for a protective order and granting all Consumers' motions to compel.
(Tr. at 700 et. seq.).
i l
The Staff respectfully moves this Board for reconsideration of the January 29, 1981 ruling on the Motion to compel the deposition of Harold Thornburg.
In the alternative the Staff requests that the Board refer the Motion to the Atomic Safety and Licensing Appeal Board.
REQUEST FOR RECONSIDERATION The Appeal Board has recognized that Licensing Board's have the inherent power to entertain and grant motions for reconsideration.
Consolidated Edison Co. of N.Y. (Indian Point Station, Unit 3), ALAB-281, 81 0212003'e
. 2 NRC 6 (1975).
In the present proceeding Consumers' motions to compel have been granted against three individuals, Mr. Naidu, Mr. Thornburg, and Mr. Fiorelli.
These motions were granted pursuant to 10 C.F.R. 2.720(h).
That provision provides that the only Staff witnesses who need be made available for depositions are those designated by the Executive 1
Director for Operations. The one exception is when there are
" exceptional circumstances", in which case the presiding officer may order NRC personnel to be made available for depositions.
The regulation also provides an example of such exceptional circumstances.
...the presiding officer may, upon a showing of exceptional circumstances, such as a case in which a particular NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director of Operations" 10 C.F.R. 2.720(h)(2).
In Appendix A to 10 C.F.R. Part 2 the regulations set out a statement of general policy and procedure for the conduct of construction permit and licensing proceedings.
Part IV of the Appendix addresses discovery.
The provision notes that in no event are " fishing expeditions" to be allowed.
The Appendix continues that with the c--
comprehensive body of information available through documents there should be a nininum need to resort to time consuming discovery procedures against the Staff.
The Appendix also notes that interrogatories against
i 4 the Staff are available for infonnation not obtainable elsewhere and depositions of Staff members are available on a showing of exceptional circumstances.
It is, therefore, cicar that, under the regulations, Consumers first line of discovery is intended to be documents; interrogatories a second method based on a showing of need, and depositions a final method available on the more restricted basis of exceptional circumstances.
It is evident that it is difficult, if not impossible, to show exceptional circumstances unless it is first clearly shown that both documents and interrogatories fail to provide the information desired by the party seeking discovery against the Staff.
Further, under the example provided in 10 C.F.R. 2.720(h) it must be shown that no other individual which has been made available could provide the desired infonnation and that the information is material.
The relatively heavy burden which Appendix A and 10 C.F.R. 2.720(h) indicate for requiring depostions of the Staff has not been met by l
Consumers.
Turning to Consumers' claim that they can't get the infonnation from any other source, it is evident that such a showing has not been made.
Although Consumers has alleged that a few named individuals from the Staff did not have the requested infonnation, they have not established that none of the numerous witnesses made available to then had the desired information.
Further, although Consumers may prefer depositions to interrogatories, the deciding factor is not pre ference.
As Appendix A and 10 C.F.R. 2.720(h) demonstrated, Board
. ordering of the deposition of a Staff witness is expected to be an exceptional occurance.
The second part of the showing of exceptional circumstances in 10 C.F.R. 2.720 is that the information sought must be " material fact (s)."
In defining the term " material" with respect to NRC regulations the Appeal Board has stated that to be material the fact must have the ability to influence the decision make/s disposition of an issue.
Virginia Electric and Power Company (florth Anna Power Station, Units 1and2)ALAB-324,3NRC347(1976).
It is apparent that material facts do not constitute all facts which would come under the general relevancy requirements discussed in 10 C.F.R. 2.740(a)(1).
The facts desired must have direct impact on the decisionmaker.
They should not be insignificant or simply facts which could lead to the discovery of admissible infonnation, as would be the case for discovery in general.
The information which Consumers seeks to obtain from Mr. Thornburg does not meet this materiality requirement.
In the present proceeding the two basic issues are (1) were the facts on which the Staff based the December 6, 1979 order true and (2) are the proposed remedial actions adequate.
To be material the infonnation must be such as would affect the decisionaakerk resolution of those issues.
Consumers wishes to I
depose ifr. Thornburg because he attended several meetings just prior to December 6, 1979 during which, they allege, there was a change in the Staff's position.
Consumers has not established, either in their motion to compel or at the prehearing conference, how the information sought is s
i f
I material to the truth or falsity of the facts in the December 9,1979 order or is material to the adequacy of the proposed remedial work.
It is difficult to imagine how the information requested by Consumers of Mr. Thornburg could be material to the issues which are a part of this proceeding.
They have not identified any facts or even a general category of facts which would be known to tir. Thornburg, which were not discoverable through other witnesses, documents, or interrogatories.
In fact, it would appear that the only " category" in which they wish to question fir. Thornburg is with respect to what he said to Mr. Case and
!!r. Stello in two meetings held just prior to issuance of the-December 6, 1979 Order.
This would amount to interrogation directly concerning the deliberative processes of the NRC Staff and is privileged from discovery under the executive privilege.
Consumers Power Company (Palisades Nuclear Power Facility) ALJ-80-1 (1980).1/
It should be particularly noted that Darl Hood, NRC project manager for Midland, was in attendance at both of the subject meetings with Mr.
Case and Mr. Stello. Mr. Hood was deposed by Consumers for 191/2 hours.
If Consumers failed to ask Mr. Hood what meetings he had with the I
decisionmakers, tha, is an error in their deposition questioning, but 1/
The Staff notes that the motion to compel the deposition of Mr. Thornburg
- was received just prior to counsel leaving for the prehearing conference and there was no time for researching these issues to provide thorough response to the motion.
While the Staff believes none of Consumers' requests for deposition should have been granted, the Staff reserves its exceptions as to Mr. Naidu and Mr. Fiorelli for later appeal since the deliberative process issue is not involved with respect to them.
. should not be considered " exceptional circumstances" such as would override the deliberative process privilege and allow a compelled deposition against Mr. Thornburg.
The ruling as it now stands would render 10 C.F.R. 2.720(h) ineffective in limiting discovery if attendance at a meeting with a decisionmaker amounts to exceptional circumstances allowing compelled discovery against NRC personnel. Many NRC personnel, perhaps hundreds, have knowledge of such meetings and would be subject to discovery under such an interpretation of " exceptional circumstances" as appears in the Board's ruling.
This interpretation makes 10 C.F.R. 2.720(h) ineffectual for preventing the " fishing expedition" Appendix A to 10 C.F.R. Part 2 indicates is to be avoided.
For the reasons stated above the Staff respectfully requests the Board reconsider its granting of Consumers Motion to Compel Harold Thornburg and deny that motion.
REQUEST FOR REFERRAL In the event that this Board denies the Staff's request for reconsideration, the Staff respectfully requests that the Licensing Board refer the question of compelling the deposition of Mr. Thornburg to the Atomic Safety and Licensing Appeal Board.
Under 10 C.F.R. 2.730(f) the Licensing Board may refer an interlocutory ruling to the Appeal Board when prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense.
In Public Service Company of Indiana, Inc. (Marble Hill Nuclear
_ =.
. Generating Station, Units 1 & 2), ALAB-405, 5 flRC 1190,1192 (1977) the Appeal Board held that discretionary review was appropriate when the ruling threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal.
This is exactly the situation in the present case with respect to Mr. Thornburg.
If the deposition of Mr.
Thornburg is allowed, later appeal can not undo that deposition.
The situation is particularly appropriate for immediate appeal as it involves allowing discovery into a priveleged area as discussed above.
Under such circumstances later review, as a practical matter, can offer.no adequate remedy for the anticipated harm.
Indeed, later review of such a situation as this may always be precluded due to mootness.
Such a precedent could allow the weakening of the deliberative process privilege without hope of challenging the ruling through the appellate process.
For the above reasons the present ruling is particularly appropriate for referral to the Appeal Board under 10 C.F.R. 2.720(h). The Staff respectfully requests the Licensing Board, if it does not reconsider its January 29, 1981 ruling on the !!otion to Compel the Deposition of Harold.
Thornburg, to refer the issue to the Appeal Board for immediate resolution.
Respectfully submitted, Bradley
. Jones Counsel for f1RC Staff Dated at Bethesda, Maryland this 9th day of February, 1981.
Uf11TED STATES OF AMERICA f1VCLEAR REGULATORY COMMISS10t1 BEFORE THE ATOMIC SAFETY At1D LICEfiSIflG BOARD In the Matter of C0t150MERS POWER COMPAtlY Docket flos. 50-329-0M & OL 50-330-0M & OL (Midland Plant, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of MOTION FOR RECONSIDERATI0ft OR REFERRAL OF LICENSING BOARD'S RULINGS OF JANUARY 29, 1981, in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an. asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 9th day of February,1981.
- Charles Bechhoefer, Esq.
Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Summerset Street U. S. Nuclear Regulatory Commission Midland, Michigan 48640 Washington, D.C.
20555
- Mr. Gustave A. Linenberger Michael I. Miller, Esq.
Atomic Safety and Licensing Board Ronald G. Zamarin, Esq.
U. S. Nuclear Regulatory Commission Alan S. Farnell, Esq.
Washington, D.C.
20555 Isham, Lincoln & Beale One First flational Plaza Dr. Frederick P Cowan 42nd Floor 6152 N. Verde Trail Chicago, Illinois 60603 Apt. B-125 Boca Paton, Florida 33433
- Atomic Safety and Licensing Board Panel Frank J. Kelley U. S. Nuclear Regulatory Commission F~
~ Attorney General of the State -
Washington, D.C.
20555 of Michigan Steward H. Freeman
- Atomic Safety and Licensing Assistant Attorney General Appeal Board Panel Gregory T. Taylor U. S. Nuclear Regulatory Commission Assistant Attorney General.
Washington, D.C.
20555 Environmental Protection Division 720 Law Building
- Docketing and Service Section Lansing, Michigan 48913 Office of the Secretary U. S. fluclear Regulatory Commission Myron M. Cherry, Esq.
Washington, D.C.
20555 1 IBM Plaza Chicago, Illinois 60611
. James E. Brunner, Esq.
Jeann Linsley Consumers Power Company Bay City Times 212 West Michigan Avenue 311 Fifth Street Jackson, Michigan 49201 Bay City, Michigan 48706 Ms. Barbara Stamiris 5795 N. River Freeland, Michigan 48623 Mr. Steve Gadler 2120 Carter Avenue St. Paul, Minnesota 55108 Wendell H. Marshall, Vice President Midwest Environmental Protection Associates RFD 10 Midland, Michigan 48640 Ms. Sharon K. Warren l
636 Hillcrest Midland, Michigan 48640 --
James R. Kates 203 S. Washington Avenue Saginaw, Michigan 48605 o
Bradley W Jones l
Counsel for NRC f
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