ML19341A879
| ML19341A879 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/27/1981 |
| From: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8101280611 | |
| Download: ML19341A879 (6) | |
Text
fl)ILT l '^~ = t__ m Ez r [f c-f: ? E$ N UNITED STATES OF AMERICA ] NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOAP.0 In the Matter of ) ) CONSUMERS POWER COMSANY ) Docket Nos. 50-329-0L ) 50-330-0L (Midland Plant, Units 1 and 2) ) 50-329-0M 50-330-0M NRC STAFF RESPONSE TO CONSUMERS' MOTION TO COMPEL DEPOSITION OF KAMALAKER NAIDU On January 15, 1981 Consumers Power Company filed a motion requesting an Order to compel the deposition of Kamalaker Naidu, an employee of the Nuclear Regulatory Commission assigned to Region III of the Office of Inspection and Enforcement. The NRC Staff opposes the motion. Consumers argues that the " Staff demonstrates apparent defiance of the Board 's direction... ", "...the Staff's good faith... is questionabl e... ", and that "...the instant Staff conduct with regard to Mr. Naidu appears to be part of a continuing course of conduct by the Staff, beginning with the refusal to complete the deposition of Mr. Kane, the bringing of a Motion for Protective Order which is wholly without merit, telephone conference [ sic] and the refusal to produce Mr. Naidu for deposition." To keep the Board fully apprised of the situation, it is also noted herewith that the Staff has also recently refused Consumers' request to depose Mr. Harold Thornburg, Director of the Division of Reactor Construction Inspection in the Office of Inspection and Enforcement. As the Board is aware from the telephone { conference held on December 29, 1981, the Staff earlier refused to produce another NRC employee, Mr. Gaston Fiorelli. 8101280g(j
. Consumers appears to believe that it has an absolute right to conduct discovery of the Staff in the manner of it choosing without regard to the provisions of 10 C.F.R. Part 2, the Commission's Rules of Practice. Nowhere in its motion to compel nor in its requests to the Staff did Consumers attempt to address the exceptional circumstances showing in 10 C.F.R. 5 2.720(h). The Staff believes the reason is obvious, viz, Consumers can not make the showing. Appendix A to 10 C.F.R. Part 2 in Section IV.(d) states "[d]iscovery against the Staff (and other NRC personnel, including consultants) by way of deposition is pennitted upon a showing of exceptional circumstances." Section 2.720(h)(2)(1) provides that the Staff shall make available one or more witnesses designated by the Executive Director for Operations for oral examination at the hearing or on deposition regarding any matter which is relevant to the issues in the proceeding. The clarity of the rule is such that licensing boards have had few occasions on which to consider its terms. In rejecting a claim that a senior staff official should be required to attend a hearing, a licensing board indicated that where "...the Regulatory Staff is prepared to provide witnesses fully capable of furnishing that evidence which the Licensing Board feels is relevant and necessary to its rendering a meaningful decision..." the exceptional circumstances showing W could not be made. [ Toledo Edison Company (Davis-Besse Unit 1), LBP-72-14, 5 AEC 31,39 (1972).] Of course, once the Staff produces a named employee for examination in the context of a proceeding, it then must make that person available tr the board and parties on the pertinent subjects throughout the course of the proceeding. [ Commonwealth Edison Company (Zion Units 1 and 2), ALAB-226, 8 AEC 381, 391 (1974).]
. Recently, the Appeal Board discussed the concept of discovery at length. [ Pennsylvania Power & Light Co., et. al, (Susquehanna Units 1 and 2), ALAB-613, slip op. p.5, (September 23,1980).] The Appeal Board indicated that discovery against the Staff is on a different footing than that available to other parties in Commission proceedings. [ Slip op. p. 7.] The Appeal Board indicated that interrogatories were permitted to be addressed to the Staff where the information sought was not obtainable elsewhere and that a licensing board's advance permission was required to depose Staff members. [ Slip (,p. p. 8.] The exceptional circumstances showing which Consumers must make is that fir. Naidu possesses " direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director for Operations...". [10 C.F.R. 9 2.720(h)(2)(1).] Consumers' only allegation remotely approaching this standard is a quotation on page 3 of its motion stating that "...Mr..Naidu, acct 1 to the testimony of the Director of I&E Region II was ' knowledgeable s 'ues involved in the proceeding where the witness selected by the Staff (Keppler) did not have the requisite knowledge'." Since the transcript of the Keppler deposition was not available to either Consumers or the Staff at the time of Consumers' motion, this quotation attributed to Mr. Keppler can not be verified as accurate. Notwithstandir" this, the quotation is insufficient to support a showing of exceptional circumstances. Well over one-hundred NRC employees could be said to be knowledgeable on issues involved in this proceeding. This Board and the Staff can not be expected to produce each employee for deposition by Consumers merely because such an employee has knowledge of the issues in the proceeding.
. Consumers wants to depose NRC personnel of its choice without regard to l whether a Staff employee will be used as part of the Staff's direct case in this proceeding. It is precisely this type of abuse which the Commission's rule is designed to prevent. The Staff will continue to consider Consumers' requests to produce a particular named NRC employee for deposition. However, the Staff will not voluntarily produce named employees for deposition where Consumers presents no argument and the Staff knows of no facts tending to indicate that employees other than the ones designated by the Staff have personal knowledge of material facts not known to those persons designated as Staff witnesses. In the case of Mr. Naidu, the Staff is not presenting him as a Staff witness. The Staff is presenting Mr. Keppler, Mr. Shumaker, and Mr. Gallagher, who are all members of the Office of Inspection and Enforcement, all have knowledge of the inspection and enforcement record of Consumers Power at the Midland facility, and all have been made available to Consumers for deposition. Consumers apparently believes that it can ask hundreds of questions of each designated witness, stumble upon one question which one witness cannot answer, and then bootstrap an "I don't know, ask someone else" answer into sufficient cause for demanding a deposition of another Staff employee. This is not the law and the Board should deny Consumers' motion. Respectfully Submitted, William J. 01 tead Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 27th day of January,1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CONSUMERS POWER COMPANY Docket Nos. 50-329-0M & OL ) 50-330-0M & OL (Midland Plant, Units 1 and 2) ) CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO CONSUMERS' MOTION TO COMPEL DEPOSITION OF KAMALAKER NAIDU 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 27th day of January 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 National Plaza Dr. Frederick P. Cowan 42nd Floor 6152 N. Verde Trail Chicago, Illinois 60603 Apt. B-125 Boca Raton, Florida 33433
- Atomic Safety and Licensing Board Panel l
Frank J. Kelley U. S. Nuclear Regulatory Comission 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 Comission i 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. Nuclear Regulatory Commission Myron M. Cherry, Esq.
Washington, D.C. 20555 1 IBM Plaza Chicago, Illinois 60611
.... James E. Brunner, Esq. Consumers Power Company-J 212 West Michigan Avenue Jackson, Michigan 49201 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 636 Hillcrest Midland, Michigan 48640 William J. 61mstead Assistant Chief Hearing Counsel -~,}}