ML20033B549
| ML20033B549 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 11/20/1981 |
| From: | Fitzgibbons R CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | STAMIRIS, B. |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8112010512 | |
| Download: ML20033B549 (9) | |
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DOLKETED US!!RC e UNITED STATES OF AMERICA
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NUCLEAR REGULATORY CUMMISSION.,81 NOV 25,P3:14
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Before the Atomic Safety and Licensing -BoardECREERY'/
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In.the Matter of
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50-330-OL CONSUMERS POWER. COMPANY
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(Midland Plant, Units 1 and 2)
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- CONSUMERS POWER'S RESPONSE TO
'tNTERVENOR' S REQUEST FOR ADMISSION s,a es a nna as w a m e, A OF,TlIE GENUINENESS AND o)
- * * "f AUTHENTICITY OF TWO DOCUMENTS i,
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Consumers Power Company
(" Consumers Power"),
pursuant to 10 C.F.R.'s2.742(b), hereby objects to Inter-venor Barbara'Stamiris' ' Request For ' Admission Of The Genu-p ineness and Authenticity,0f Two Documents
(" Request").
I.
Background
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Evidentiary hearings in this procee ing were held
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in July, August, and Occober, 1981."
In these hearings, the s
NRC Staff, Intervenors and Consumers Power completed their
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presentations o'n all quality assurance,' aspects of the " Order
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j Modifying Construction Permits," dated December 6, 1979
(" Modification Order"), all mEnagarial attitude issues
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raised in Ms. Stamiris' contenti'ons,1 (a), 1(b) and 3, and l
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i an,d the examples outlined in her Answers to Interrogatories, a
filed April 20, 1981.
On October 2, 1981, the Atomic Safety and Licensing Board
(" Licensing Board"), in its Memorandum (Concerning Telephone Conference Call of September 25, 1981 t'
and Applicant's Motion For Partial Decision)
(" Memorandum"),
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closed the record, and granted permission to all parties to
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file proposed findings of fact and conclusion of law, on
. these issues.
f, On November 11, 1981, Ms. Stamiris filed the Request which asks Consumers Power to admit the authenticity
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$nd genuineness of two reports of quality assurance audits
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f Consumers Power conducted of Bechtel Inc. in 1977.
This
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Request was admittedly filed by Ms. Stamiris "in the hopes of expediting the hearing by allowing the documents [the subjects of the Request] to be used in my proposed Findings i
of Fact due November 21, 1981.
(emphasis added).
For,the reaso' s set forth below, Consumers Power objects to Stamirid'[Requestinitsentiretyasimproper.
Ms.
II.
Discupsion
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The Request is irrelevant to the issues being addressed im /:1.e Proposed Findings of Fact and Conclusions of Law.
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The documents, the subjects of Ms. Stamiris' Requ st, are improper matters for admission under 10 C.F.R.
S2.742, fer they are irrelevant to the issues to be covered in the proposed findings of fact and conclusions of law.
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'10 C.F.R.
- 52. 74 2 (b).
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The proposed findings of fact and conclusions of law to be filed by Ms. Stamiris are to address quality assurance'and managerial attitude issues. During the July 7, 1981 evidentiary session, the MRC Staff and Consumers Power submi.tted to the Licensing Board a stipulation pertaining to the quality assurance aspects of the Modification Order.
l'Tr. 987-89, 1044-79).
On July 8, 1981, the Licensing Board formally accepted paragraphs 1 and 2 of the Stipulation.
(Tr. 1174).
As the Licensing Board noted in its Memorandum and Order (Ruling Upon the Stipulation), paragraphs 1 and 2 of the Stipulation essentially constitute an admission by Consumers Power that there were quality assurance deficien-cies related to soils construction activities under and around safety-related structures and systems at the Midland site prior to December 1979 and that these def4.ciencies were an adequate basis for the issuance of the Modification Order.
Consequently, these two issues are no longer in controversy in this proceeding.
The two documents, the subjects of Ms. Stamiris' Request, relate only to soils construction activit; during 1977.
As such, they are only relevant to these issues already disposed of by paragraphs 1 and 2 of the Stipulation.
- Thus, they are unduly repetitious of evidence already admitted -
into the record of this proceeding.
Indeed, Ms. Stamiris has not even attempted to articulate in her Request how these audit reports are relevant to the issues she must address in her proposed findings of fact.
B.
The Request is improper and untimely discovery.
Ms. Stamirls' Request is untimely and improper discovery. Admission of the authenticity of documents pursuant to 10 C.F.R. S2.742 is one of-several methods provided for conducting discovery. 10 C.F.R.
,2. 740 (a).
See, Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), LB?-79-34, 10 NRC 828, 857 (1979).
Discovery in this proceeding has long been over.
In June 1981, the Licensing Board issued a Protective Order explicitly forbid-ding any further discovery.
Memorandum and Order (Concerning Various Pending Matters), dated June 15, 1981, at p. 4.
Therefore, Ms. Stamiris' Request is untimely and must be denied.
More fundamentally, however, Ms. Stamiris' Request is objectionable as an improper use of a discovery procedure.
Ms. Stamiris states that she makes "this request now in the hopes of expediting the hearing by allowing the documents to be used in my proposed Findings of Fact.
This cannot be permitted.,
Section 2.754 (c) explicitly states that "(p)roposed findings of fact shall be clearly and concisely set forth.
and shall be confined to the material issues of fact presented on the record.
10 C.F.R.
S2. 754 (c) (emphasis added).
The record of this administrative proceeding is composed of the " transcript of testimony and the exhibits, together with all of the papers and requests filed in a proceeding, except to the extent that official notice is taken."
10 C.F.R. Part 2, Appendix A, V (e) (1).
The two documents of Ms. Stamiris' Request were not introduced into evidence at the hearing as exhibits and are not part of the record for this proceeding.
Therefore, thase documents cannot be used in Ms. Stamiris' proposed findings of fact.
In order for documents to be introduced into evidence as exhibits and admitted into the record, the documents must have been furnished to all parties either prior to or during the evidentiary hearing.
This is to provide each party the opportunity to "present such oral or documentary evidence and conduct such cross-examination as may be required for full and true disclosure of the facts."
10 C.F.R.
S 2. 74 3 (a). b/
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Although !:. Stamiris has not so stated, it appears that she has possessed the documents which are the subject of her Request throughout the evidentiary pro-ccedings to date.
If Ms. Stamiris desired to use these documents in her proposed findings of fact, she could hava introduced these documents into evidence. -
Section 2.742 is a discovery procedure and is not an alternative to the procedure set forth in Section 2.743 for introducing documents into a record as evidence.
Indeed, Section 2.742(c) provides "[a]dmissions obtained pursuant to this section may be used in evidence to the same extent and subject to the same objections as other admissions."
10 C.F.R.
S2. 742 (c) (emphasis added).
Admissions, as all testimony, oral or written, and documents must be introduced into evidence pursuant to 10 C.F.R. S2.743.
Any other construction of the regulations would undermine a party's right to conduct cross-examination and present rebuttal evidence.
Since these documents, even if their authenticity is admitted, are not part of the record, they cannot be used by Ms. Ftamiris in her proposed findings of fact.
C.
The Evidentiary Record Has Not And Should Not Be Reopened.
Ms. Stamiris cannot introduce into evidence the documents, the subject of her Request, unless she successfully moves for the evidentiary record in this proceeding to be reopened.
As noted earlier, the Licensing Board closed the record on quality assurance and managerial issues when it granted the parties to this proceeding leave to file proposed findings of fact on these issues.
Ms. Stamiris has not moved the Licensing Board to reopen the evidentiary record.. - -. _
Even if her Request is viewed as a motion to reopen the record, it must be denied.
In Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 362-63 (1981), the Nuclear Regulatory Commission itself held that evidentiary records should not be reopened " absent a showing, by the moving party, of 'significant new evidence not included in the record, that materially affects [or could affect] the decision."
Ms. Stamiris has not satisfied these requirements.
Conclusion Ms. Stamiris' "Raquest For Admission of the Genuineness And Authenticity of Two Documents" must be denied for the Loregoing reasons.
Respectfully submitted, 9
I Robert $ Fit:qtg.!tibons J Isham, Lincoln & Beale Suite 4200 One First National Plaza Chicago, Illinois 60603 (312)S58-7500.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
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In the Matter of
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Docket Nos. 50-329-OL
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50-330-OL CONSUMERS POWER COMPANY
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50-329-OM
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50-330-OM (Midland Plant, Units 1 and 2
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CERTIFICI TE OF SERVICE I,
Robert G.
Fitzgibbons Jr., hereby certify that a copy of Consumers Power's Response to Intervenor's Request for Admission of the Genuineness and Authenticity of Two Documents was served upon all persons shown in the attached service list by deposit in the United States mail, first class, excluding where marked by an asterisk, in which case service was by Federal Express, this twentieth day of Noverber, 1981.
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Robert G.
Fitzgib s Jr.
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i SERVICE LIST Frank J.
Kelley, Esq.
Attorney General of the State of Michigan 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.
C.
R.
Stephens 4
One' IBM Plaza Chief, Docketing & Services Suite 4501 U.S. Nuclear Regulatory Comm.
Chicago, Illinois 60611 Office of the. Secretary Washington, D.C.
20555' Mr. Wendell H. Marshall RFD 10 Ms. Mary Sinclair Midland, Michigan 48640-5711 Summerset Street i
Midland, Michigan 48640 Charles Bechhoefer, Esq..
Atomic-Safety & Licensing William D. Paton, Esq.
Board Panel Counsel for the NRC Staff U.S.
Nuclear Regulatory Comm.
U.S. Nuclear Regulatory Comm.
Washington, D.C.
20555 Washington, D.C. 20555 Dr. Frederick P.
Cowan Atomic Safety & Licensing 6152 N. Verde Trail
. Board Panel Apt. B-125 U.S. Nuclear Regulatory Comm..
Boca Raton, Florida 33433 Washington, D.C.
20555 Admin. Judge Ralph S.
Decker
- Barbara Stamiris Route No.
4, Box 190D 5795 North River Road Cambridge, Maryland 21613 Route 3 Freeland, Michigan 48623 Carroll E.
Mahaney Babcock & Wilcox Jerry Harbour P.O. Box 1260 Atomic Safety & Licensing Lynchburg, Virginia 24505 Board Panel U.S. Nuclear Regulatory Comm.
James E.
Brunner, Esq.
Washington, D.C<
20555 Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201