ML19345F980
| ML19345F980 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 02/18/1981 |
| From: | Bradley Jones NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8102190678 | |
| Download: ML19345F980 (13) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of CONSUMERS POWER COMPANY
)
Docket Nos. 50-329-0M & OL
)
50-330-0M & OL (Midland Plant, Units 1 tad 2)
)
MEMORANDUM ON REFERRAL OF MOTION TO COMPEL AND MOTION FOR STAY OF DEPOSITION OF HAROLD THORNBURG I.
INTRODUCTION On January 23, 1981 Consumers Power Company filed a Motion to Compel the Deposition of NRC Staff member Harold Thornburg.
During the pre-hearing conference on January 29, 1981 in the above proceeding the Licensing Board ruled from the bench granting the motion to compel against Mr. Thornburg, as well as against several other NRC Staff mem-bers.1/ On February 9,1981 the Staff filed a motion with the Licensing Board to reconsider it's ruling of January 29, 1981 or in the alternative to refer the motion to the Appeal Board.
Following a February 10, 1981 coderence call, the Licensing Board issued on February 12, 1981 a memorandum and order on the motion to compel. The Licensing Board pro-I vided that if Darl Hood and Gaston Fiorelli could answer Consumer's 1/
Motions to Compel were also granted against Mr. Naidu and Mr. Fiorelli, both members of the NRC Staff.
Consumers has deposed 15 members of the Staff during the discovery period because the Staff has voluntarily made these personnel available. To date the Licensing Board has ruled in Consumers' favor on four additional Consumers' requests for deposition of the Staff.
The Staff did not have the opportunity to file a written response to Consumers' notions to compel the depositions of Mr. Thornburg or Mr. Fiorelli before the prehearing conference, h
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i 2_
questions on certain meetings, Mr. Thornburg would not be required to appear for depositions.
However, the Board granted the motion to compel to the agtent Consumer's questions were not adequately answered by Messrs. Hood and Fiorelli. The Licensing Board referred its ruling to the Appeal Board, but ordered the deposition of Mr. Thornburg pursuant to the conditions expressed above, unless the Appeal Board stayed the order.
On February 12, 1981 the Appeal Board issued an order directing the parties to address two issues:
1.
Whether the Board's ruling satisfies the criteria for our acceptance of this referral. [ citations onitted.]
2.
Whether a stay of the Board's ruling is warranted.
II.
The Board's Rulino Satisfies the Criteria for Referral The standards for referral of a ruling to the Appeal Board are well established.
Boston Edison Co. (Pilgrim Nuclear Power Stations) ALAB-81, 5 AEC 348 (1972).
Under 10 C.F.R. 9 2.730(f) referral by the presiding officer is appropriate when, in his judgement, a prompt decision is necessary to prevent detriment to the public interest or unusual delay and expense.
In Consumers Power Company, (Midland Plant, Units 1 and 2),
ALAB-438,6NRC638(1977), the Appeal Board rejected a referral where the Licensing Board did not explain why referral was necessary and the losing party had indicated it could live with the Board's ruling.
In addition, the issue in that case was found by the Appeal Board not to be
" novel".
The factors in ALAB-438 which militated against accepting referral are not present here. The Licensing Board has indicated that its ruling night have public interest implications within the meaning of 10 C.F.R.
I l 2.730(f).
Order p. 12.
Any such hann to the public interest could not be remedied by later appeal.
Unlike the situation in ALAB-438, the Staff has not indicated that it is willing to live with the ruling, but in fact has objected to it and specifically requested the referral.
- Finally, unlike ALAB-438, this case is novel in several respects.
Fi rs t, 10 C.F.R. 9 2.720(h)(2) has been interpreted to compel the deposition of a non-witness, Mr. Thornburg, a senior staff division director.
The Licensing Board relied on Consumers' representations concerning deposition testimony which, even if true, has not yet been ruled on as to its admissibility nor has the Staff had the opportunity to object to it.
For the above reasons the ruling in ALAB-438 does not militate against accepting the present referral.
The present situation also meets the requirements of 10 C.F.R. 9 2.730(f) for referral. The Board's ruling would allow discovery in a privileged area.
If discovery is allowed, later review can not undo the discovery or otherwise repair the damage to the privilege.
The Licensing Board, as discussed above, appears to agree that there is potential damage to the public interest if the information involved in their ruling is privileged matter.
Further, in Consumers Power Company, (Palisades Nuclea-Power Facility), ALJ-80-1, 12 NRC 117,122 (1980), it was recog-nized that disclosure of the deliberative processes of a government 1
agency would be injurious to the consultative functions of government.
Such injury, which would be irreparable, would involve immediate damage to the public interest. While the Board attempted to distinguish the Palasades decision from the present decision, the Staff believes the two decisions are in conflict.
Thus the requirements of 10 C.F.R. I 2.730(f) for referral are met in the present situation.
i !!!,
A Stay of the Board's Ruling is Warranted The,. factors to be considered in granting a motion to stay are:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted.
(3) Whether the granting of a stay would harm other parties; and (4) Where the public interest lies.
10 C.F.R. 2.788(e). The Staff requests a stay of the order compelling the deposition of Harold Thornburg pending the Appeal Board's decision on the referral from the Licensing Board.
A.
Likelihood of Success on the Merits Discovery against the Staff is on a different footing than that existing for other parties.
[ Pennsylvania Power and Light Co. (Susque-hannah 1 and 2), ALAB-513, NRC
, slip. op. p. 7 (September 23, 1980).]
The presiding officer can order depositions against a named nember of the Staff only upon a showing of exceptional circumsances.
10 C.F.R.
i 2.720 (h)(2).
By virtue of the fact that the Licensing Board has now conditioned its order en other depositions it is clear that it has not made the required exceptional circumstances showing.
In effect it has made a prospective finding placing the burden of the Staff to show the absencza of exceptional circunstances in clear violation of the i
l regulations.
Consumers claims that it needs to question Mr. Thornburg on what I
infornation he conveyed to Mssrs. Case and Stello in two meetings held
--- just prior to the issuance of the December 6,1979 Order, which is being
^
challenged in this proceeding. The Licensing Board identified the infomat(on it believed was material as being "any factual information communicated to Mr. Case and Mr. Stello which may have led to the modifi-cation order and which may indicate a shift in position of Staff members." Order p. 8.
The order continues "Mr. Thornburg appears to have infomation not possessed by others made available by the Staff." Order
- p. 9.
There is no evidence that Mr. Thornburg has factual information not possessed by others that the Staff has made available or that the infomation alleged to be known by Mr. Thornburg is material to the issues in this proceeding.
Under 10 C.F.R. 9 2.202(a) a show cause order must:
... Allege the violations with which the Licensee is charged, or the potentially hazardous conditions or other fact deemed to be sufficient ground for the proposed action _..." [ emphasis addedT Pages 1-4 of the December 6,1979 Order set out the reasons for issuing the Order with references to the inspection reports on which the conclu-o sions were based. The show cause order also contains two appendixes which detail the specific violations of NRC regulations on which the Order is based. Assuming, arguendo, that Mr. Thornburg conveyed to Messrs. Case and Stello facts other than those revealed in Staff docu-ments, such facts are irrelevant to the adequacy of the justification for the December 6 Order. Consumers has had access during discovery to all documents referenced in the Order, as well as to most (if not all) of the authors of those documents.
_ _ _ _ i Under the example provided in 10 C.F.R. I 2.720(h) it must be shown that no other individual which has been made available could provide the desired.jnfomation and that the information is materia 18 In defining the tem " material" with respect to NRC regulations the Appeal Board has stated that to be material the fact must have ability to influence the decisionmakers disposition of an issue. Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2) ALAB-324, 3 NRC 347 (1976).
It is apparent that material facts do not constitute all facts which would cone under the general relevancy requirenents discussed in 10 C.F.R. 5 2.740(a)(1).
They should not be insignificant or simply facts which could lead to the discovery of adnissible infomation, as would be the case for discovery in general.
The infomation sought from Mr. Thornburg does not meet this materi-ality 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 infomation must be such as would affect the decisionmakers resolution of those issues.
Consumers has not established, either in their motion to compel or at the prehearing conference, how the infomation sought is material to the truth or falsity of the facts in the December 6,1979 Order or is material to the adequacy of the proposed 2/
"The attendance and testimony of the Commissioners and named NRC personnel at a hearing or on deposition may not be required by the presiding officer: Provided, That the presiding officer may, upon a showing of exceptional circumstances, such as a case in which a particular named NRC employee has direct personal knowledge of a naterial fact not known to the witnesses made available by the Executive Director for Operations require the attendance and test-nony of named NRC personnel." 10 C.F.R. 5 2.720(H)(2)(i).
remedial work.
Consumers has not identified any facts or even a general category of facts which would be known to Mr. 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 tir. Thornburg is with respect to what he said to Mr. Case and Mr. 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, 12 NRC 117 (1980).
The Licensing Board cites Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), CLI-74-16, 7 AEC 313 (1974) as supporting the motion to compel even if privileged infomation is involved. There are several key dissimilarities between that case and the present situation.
In North Anna the infomation sought was safety related and, in addition, an issue in that proceeding was when certain infomation was communicated to the Commission.
In the present situation the infomation sought relates only to what Mr. Thornburg may have told Mr. Case and Mr. Stello with regard to policy implications.
Such infor-nation has no safety implications.
In addition, there is no issue in the present proceeding related to when infomation was received by the i
Comission.
Under these circumstances there is no showing sufficient to justify overriding the protection of the exeuive privilege.
The ruling as it now stands would render 10 C.F.R. 2.720(h) ineffec-tive in limiting discovery if attendance at a meeting with a decision-maker amounts to exceptional circumstances allowing compelled discovery l
against NRC personnel.
This interpretation makes 10 C.F.R. 6 2.720(h) l ineffectual for preventing the " fishing expedition" Appendix A to 10 C.F.R. Part 2 indicates is to be avoided.
In addition, the infomatJon sought by Consumers from Mr. Tharnburg is not known solely to him.
Mr. Thornburg serves in a managerial capacity and does not have, nor has Consumers alleged he has, any independent infomation relevant to the proposed fixes or past deficiencies at the Midland site.
Any infomation ftr. Thornburg would have would have come from documents or individuals below him in the managerial chain.
Consumers has had extensive discovery of individuals who do have direct infomation on the Midland soils problem.3_/
Under these circumstances Consumers' claim that they must question Mr. Thornburg in order to ascertain the basis for the December 6,1979 order is simply untenable. Appendix A provides that there should be a minimum of discovery against the staff, interrogatories against the Staff are available for infomation not obtainable elsewhere and deposi-tions of Staff members are wailable on a showing of exceptional circum-stances. Therefore, 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 l
the more restricted basis of exceptional circumstances.
It is difficult 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.
3/
Among the fifteen Staff witnesses already exhaustively deposed by Consumers in this proceeding (more are sheduled) is Darl Hood, the project manager, who was present at the meetings on which Consumers wishes to question Mr. Thornburg. Mr. Hood was deposed for 191/2 hours by Consumers' attorneys.
The number of depositions taken in-this pro-ceed-ing is unprecedented, a large volume of documents have been made available to Consumers through-out the discovery process.
L
-g-B.
Irreparable Injury In Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ILAB-405, 5 NRC 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.
In the present case, if the deposition of Mr. Thornburg is allowed, later appeal can not undo that deposition.
The situation is particularly appropriate for granting a stay as it involves a privileged area. The harm cannot be undone after the deposition and is clearly irreparable as 'equired by the second factor in 10 C.F.R. 5 2.788.
C.
To Other Parties Since Consumers has had unprecedented discovery against the Staff, including deposing Darl Hood who was at the meetings on which Consumers wishes to question Mr. Thornburg, it is not evident that any harm will cone to Consumers by granting this stay.
It should also be noted that the Staff has agreed to again make Mr. Hood available for questioning with respect to the meetings on which they wish to depose Mr. Thornburg.
Any harm to Consumers from being required to await the results of the referral before deposing Mr. Thornburg are negligable at best.
Under such circumstances the Staff maintains that a consideration of hann to the other parties militates for granting the requested stay.
10 -
D.
Public Interest As discussed above, Appendix A of 10 C.F.R. Part 2 clearly estab-lishes $ hat there is a desire to prevent " fishing expeditions" from occuring during discovery.
Such actions lead to costs both in time and money which do not benefit the public interest.
In addition, in Consumers Power Company (Palisades Nuclear Power Facility) ALJ-80-1, 12 NRC 117, 122 (1980), the Administrative Judge cites with approval the language in NLRB v, Sears Roebuck and Company, 421 US 132 (1975), which states that required disclosure of the deliber-ative processes of a government agency would be injurious to the consul-tative functions of government.
This further demonstrates that allowing discovery into a privileged area would not be in the public interest and granting the requested stay would further the public interest.
Conclusion For the reasons stated above the Staff believes the requirements of 10 C.F.R. 6 2.788 for the granting of a stay have been adequately demon-strated.
The Staff, therefore, respectfully request that the Licensing Board's granting of the motion to compel the deposition of Harold Thorn-burg be stayed pending Appeal Board review of the referral of that decision to them by the Licensing Board.
Respectfully sub itted 4M49' d
radley W.
es Counsel for NRC Staff e
Dated at Bethesda, Maryland this 18th day of February,1981.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL 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 MEMORANDUM ON REFERRAL 0F MOTION TO COMPEL AND MOTION FOR STAY OF DEPOSITION OF HAROLD THORNBURG, 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 18th day of February, 1981.
- Richard S. Salzman, Chairmam Frank J. Kelley Atomic Safety and Licensing Attorney General of the State Appeal Board Panel of Michigan U. S. Nuclear Regulatory Commission Steward H. Freeman Washington, D. C.
20555 Assistant Attorney General Gregory T. Taylor
- Dr. John H. Buck Assistant Attorney General.
Atomic Safety and Licensing Environmental Protection Division Appeal Board Panel 720 Law Building U. S. Nuclear Regulatory Commission Lansing, Michigan 48913 Washington, D. C.
20555 Myron M. Cherry, Esq.
- Ms. Christine N. Kohl 1 IBM Plaza Atomic Safety and Licensing Chicago, Illinois 60611 Appeal Board Panel U. S. Nuclear Regulatory Commission Ms. Mary Sinclair Washington, D. C.
20555 5711 Summerset Street
- Caarles Bechhoefer, Esq.
Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Michael I. Miller, Esq.
Washington, D.C.
20555 Ronald G. Zamarin, Esq.
Alan S. Farnell, Es.
(
- Mr. Gustave A. Linenberger Isham, Lincoln & Be le Atomic Safety and Licensing Board One First National Plaza U. S. Nuclear Regulatory Commission 42nd Floor Washington, D.C.
20555 Chicago, Illinois 60603 Dr. Frederick P. Cowan 6152 N. Verde Trail Apt. B-125 Boca Raton,_ Florida 33433 i
James E. Brunner, Esq.
- Atomic Safeity and Licensing Consw.ars Power Company
' Board Panel 212 1est Michigan Avenue U. S. Nuclear Regulatory Commission Jaciron, Michigan 49201 Washington, D. C.
20555 l's. Carbara Stamiris
- Atomic Safety and Licensing Appeal 5795 N. River Board Panel frecland, Michigan 48623 U. S. Nuclear Regulatory Comission Washington, D. C.
20555 Mr. Steve Gadler 2120 Carter Avenue
- Docketing and Service Section St. hul, Minnesota 55108 Office of the Secretary U. S. Nuclear Regulatory Commission licndell H. Marshall, Vice President Washington, D. C.
20555
- M st Environmental Protection h vciates f rD 10
.:<ll md, Michigan 48640 James R. Kates 203 S. Washington Avenue Saginaw, Michigan 48605 Jeann Linsley Bay City Times
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311 Fifth Street
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Bay City, Michigan 48706 i
/gBradleyW. Jones v
Counsel for NRC Staff b
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