ML20058A491
| ML20058A491 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 03/11/1981 |
| From: | Fitzgerald NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, FOIA-93-436, TASK-AII, TASK-SE SECY-81-154, NUDOCS 8110290032 | |
| Download: ML20058A491 (15) | |
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March 11,1981_
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SECY-81-154 ADJUDICATORY lSSUE
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Subject:
REVIEW OF ALAB-634 (In the Matter of Conseners Power Company)
Facility:
Midland, Units 1 and 2.
Petitions For Review:
!Jone received and none expected.
Purpose:
To inform the Commission of an Appeal Board deci-sion bibich, in out opinion,
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Review Time Excires:
April 7, 1981.
Discussion:
In ALAB-63h, the Appeal Board declined the Licens-ing Board's referral of its ruling Eranting the applicant's motion to compel the deposition cf
?!RC staff member Mr. Harold Thornburg, who had not been made available as a witness by the Exec-utive Director for Operations. [nourview, i
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'i This consc11 dated prceeeding on the I4idland scil l
settlement issues is currently in the discovery phase.
Applicant Censumers Fewer noticed for deposition several !!RC employees, including i
Mr. Harold Thornburg, who had not been designated as witnesses by the Executive Director for Opera-j B110290032 930412 tions (EDO). 2/
Staff refused Consumers recuest PDR FOIA GILINSK92-436 PDR i..i. ~?.'i i.1 16.; 7 ;rf, n df; e j f
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10 CFR 2.720(h)(2)(1) provides that the Staff shall make avail-(
able one or more witnesses designated by the EDO for oral examin-atien at the hearing or en deposition regarding any matter which I is relevant to the issues in the proceeding.
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CO!! TACT:
Shelden L. Trubatch, OGC 1-V>
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Thereupen, Censumers noved the Licensing Board, pursuant tc 10 CFR 2.7hC(f),-to ccrpel his deposition.
Consumers centended that he possesses key-infer:ation regarding issuance of the Order which initiated this proceeding, and that this information was not knrwn to the NRC staff members nade available _
as witnesses.
Staff oppcsed the notion at the prehearing cen-ference which tegan on January 28, 1981.
Staff i
contended that under NRC rules it could select any of its retters to be deposed and that another 1
party could not second-guess the staff's choice cf witnesses.
- Moreover, staff asserted that Consurers had not demonstrated j
" exceptional circumstances," which the rules i
require as a condition precedent to the presid-ing officer's exercise of discretion to call a i
particular NRC employee as a witness.
In response, Consumers pointed i
to several areas of inquiry wnich st&ff-designated witnesses were unable to address, and presented l
infcrmation indicating that the staff witnesses Consumers wanted to depose had such knowledge.
In'particular, Censumers contended that none cf the witnesses provided by the staff had any informaticn regarding the apparent change in NRC position fren staff's initial acceptance cf
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Censumers' prcpesed fixes at Midland :: the fina; decision by Messrs. Case and Stelle :: issue the Crder initiating this preceeding after neeting with Mr. Thornburg.
The Licensing Board granted the motien to ccc-pel the depcsition of Mr. Thornburg, finding that there are exceptional circumstances regard-ing his deposition because he has direct personal knowledge of material facts not kncwn to the wit-nesses made available by the staff.
On February 9, 1980 staff filed a " Motion for 3
Reconsideration or Referral of Licensing Board's Rulings of January 29, 1981" challenging the l
Board's finding of exceptional circunstances.
Staff argued that Censumers had not shewn that Mr. Thcrnburg had information not possessed by
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4 staff nenbers made available as witnesses, er j
that the inferration alleged to be kncwn to Mr. Thornburg is material.
Staff also claimed' that any information pcssesed by Mr. Thornburg regarding the alleged change in NRC's positien j
would reveal the deliberative process of the NRC staff.
Such information is not disecverable because of executive privilege.
The ~icensing-Scard discussed this notien with all parties in a conference call en February 10, 1981, during which Consumers disclaimed any intent of inquiring-l into deliberative information..
On February 12, 1981, the Licensing Ecard issued-1 a Memorandum and Order which reiterated the Scard's earlier finding that any factual infer-nation communicated by Mr. Thornburg to Messrs.
Case and Stello which may have led to the nodifi-j cation order and which ray indicate a shift in staff's pcsition was material to the soils settle-- i nent question, and thus, discoverable.
- However, the Board modified its earlier decisicn regarding the deposition of Mr. Thornburg to r equire - Con-surers to first try to cbtain the infermation i
frc= other staff members who may have to'know-ledge of the facts Mr. Thornburg communicated to Messrs. Case and Stelle.
Regarding staff's clain that the infernaticn sought was privileged, the Licensing Board noted that Consuners had disclaimed any intent cf inquiring into delibera-tive infcrmaticn.
To ensure that Ocnsurers cuestioning wculd net in:1ude recc==endations, i'
the Board limited the secpe of Mr. Th:rnburg's deposition to facts.
In addition, the Scard l
suggested that even if the informaticn bore en the deliberative process, it was necessary to a proper decision in this proceeding.' yor these l
reasons the Beard granted Consumers' nction to compel discovery of Mr. Thornburg, but referred-its decision to the Appeal Board to review the.
staff's contention that it would be injured by the revelation of deliberative material.
l Because interlocutory appeals are not favored, the Appeal Board called for briefs on whether it should accept the Licensing Board's referral.
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rguing that thed all threat cf Consuners opposed referral a Licensing Board had eliminatestaff by conditioning the circum-Under these the Appeal Consumers motion to compel.
harm to the d that stances, Consumers believe ts discretion to Board should not exercise i order becausethe d'sry to protectMoreover, review the Licensing Boarsuch review was no 10 CFR 2.730(f).
t there is no danger tha Thornburg vill probe theuse the Lice public interest. Consumers claims that the deposition-of Mr.
i n to factual NRC's deliberative process becaBoard ion staff consider any quest always instruct Should the Staff objectionable, the staff canMr. Thornburg er it. discovery matters.
ding that garding the NRC's argued for referral, contenof privileged infor l
would result in irreparab e.
be repaired on appeal.
deliberative process injury which could not referral, finding d had not abused the Com-h The Appeal Board declined t e of discretion to the that the Licensing Boar when grantcall staff witnesses explicit 10 mission's i cumstances.
presiding officer towarranted by (exceptiona this 2)(1).
not to subjectterlocutory CFR 2.720(h) found that a decisionLicensing Board decision to would nrt in undue delay erhe proceeding.
review interest, resultthe basic structure of twas based primarily cuestions The Appeal Board's decision affect if Consumersfacts.rescrited by observation that c
go beyond the limitation torder, the staff can pro-on its privilege byand instructing the Licensing Board's o i
teet its claim of execut ve objecting to those questionsMr. Thornbur
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'knouropinion.
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i Recernendation:
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- r Fi).zgerald
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J James A.
Assf.stant General Counsel 1
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ALAS-634 At t ach:nent :
DISTRIBUTION Comissioners Comission Staff Offices Secretariat i
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ATOMIC SAFETY AND LICENSING APPEAL BOARD i
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Administrative Judces:
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Salzman, Chairman 3
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Dr. John H. Buck Christine N. Kohl 48g g
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In the Matter of
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CONSUMERS POWER COMPANY
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50-330 OM & OL (Midland Plant, Units 1 and 2) )
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Mr. Micnael I. Miller, Chicago, Illinois, for the Consumers Power Company, applicant.
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Mr. Bradley W.
Jones for the Nuclear Regulatory Commission staff.
-l MEMORANDUM AND ORDER February 19, 1981
( ALAB-634) 1.
The staff may take the depositions of other parties in Commission proceedings subject only to the general strictures on discovery contained in the Rules of Practice.
Discover) 1/
against the staf f, however, is more limitE
- One limitation-
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pertinent to the matter before us is that the Executive Director for Operations designates those staff members available to respond 1/
See, Pennsylvania Power and Light Co. (Susquehanna Station, i
Units 1 and 2), ALAB-613, 12 NRC 317, 321 (1980).
l 2
to discovery requests; others may be deposed only if a Licensing Board allows it upon a showing of "special cir-An example of special circumstances recognized cumstances."
in the rules themselves is a situation in which the staff member who is sought to be deposed "has direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director for Operations 10 CFR B2.720 (h) (1) and (2).
In this case the applicant sought to depose Mr. Harold a member of the staf f whom the Director had not Thornburg, For reasons explained in a written opinion, made available.
the Licensing Board determined that Mr. Thornburg appeared to have information " essential" to the proper evaluation of an issue before it in the proceeding.
On the cround that this information was neither available from other sources nor
" possessed by others made available by the staff," the Board found that exceptional circumstances justified deposing Mr.
Thornburg.
L3P-81-4, 13 NRC (February 12, 19 81) (slip opinion at B-9).
It subjected the taking of his deposition, however, to two conditions:
(1) that certain other indivi-and (2) duals made available by the staf f be deposed first; that if they do not possess the information sought, then e
7 3-Mr. Thornburg could be questioned only on factual matters, with an express provision that he need not reveal the staff's2/
deliberative process or his recommendations to his superiors.
Id. at tslip opinion at 10-12).
2.
Discovery rulings involving parties to tae case 3/
are interlocutory anc not appealable at this stage.
At the staff's request, the Board celow " referred" its ruling to us under 10 CFR 82.730(f1 on the possibility, not ela--
borated in its opinion, that it "might have public interest implications." A!
In doing so, however, the Board voiced strong belief in the correctness of its ruling and declined to postpone the taking of F.r. Tnornburg's deposition.
Id.
at __(slip opinion at 12).
2/
Assuming that it is necessary to do so, Mr. Thornburg is schedulec to be deposed on February 20.
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See Toledo Edison Co. (Davis-Besse Station), ALA3-300, 2 NRC 752, 768-69 (1975).
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10 CFR E2.730(f) provides in pertinent part that,
"[nlo interlocutory appeal may be taken * *
- from a ruling of the presiding officer.
When in the judq-ment of the presiding officer prompt decision is necessary to prevent detriment to tne public interest or unusual delay or expense, the presiding of ficer may ref er the ruling * * *. "
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4-Section 2.7 30 (f) does not oblige us to accept all 5/
referred rulings.
Because Mr. Thornburg's deposition 1
is imminenu, we invited the staf f, the applicant, and any other party wishing to be heard to file memoranda addressing l
whether the ruling warrants our consideration now and, if so, whether we should stay the taking of his deposition until our decision on the merits of the referred question.
The staf f and the applicant responded to our invitation, the former favoring the referral and the latter opposing it.
3.
Interlocutory appeals are not favored in Commission 6/
any more than in judicial practice.--
Whether review should 7/
be undertaken on " certification"--
or by referral before the end of the case turns on whether a failure to address the issue would seriously harm the public interest, result in unusual delay or expense, or affect the basic structure 8/'
of the proceeding in some pervasive or unusual manner.~-
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Consumers Power Co. (Midland Plant, Unit.s 1 and 2),
ALAB-438, 6 NRC Of8 (.19 7 7) ; Public Service Co. of Indiana, Inc. (Marble Hill Station, Units 1 anc z),
ALAB-405, 5 NRC 1190, 1191 (1977) ; Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-ll6, 6 AEC 258 (1973).
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Davis-Besse, supra, ALAB-300, 2 NRC at 758.
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See 10 CFR 82.718(i).
_8/
See, Marble Hill, supra, ALAB-405, 5 NRC at 1192-93; Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-2 71, 1 NRC 4 7F, 4 8 3-8 6 (1975).
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Discovery rulings rarely meet those tests.
Our reluctance to take up interlocutory discovery matters i
is not arbitrary.
It simply recognizes that deciding such things as whether an interrogatory " relate [s] to matters in controversy," or is " relevant to the subject matter of the proceeding," requires a nice familiarity with the case that 10/
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the trial board possesses and we do not.
The same considera-tions govern the issue here -- whether " exceptional circumstances" have been demonstrated so as to require deposing a named staff i
member.
Our disinclination to enter the discovery thicket mirrors the Commission's own renitence in this regard.
Before 1975, the Rules of Practice required interlocutory review by the Commission itself before a board could compel discovery of Commission personnel or documents.--11/
The Commission deleted that requirement and amended Section 2.720(h) to its present form as a result of discovery requests arising in proceedings i
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- See, e.c.,
Long Island Lighting Co. (Jamesport Station, Units 1 and 2), ALAB-318, 3 NRC 186 (1976); Davis-Besse, i
supra, ALAB-300, 2 NRC at 769.
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We have previously acknowledged that discovery " matters i
are particularly within a trial board's competence and appellate review of such rulings is usually best con-2 ducted at the end of the case."
Susquehanna, supra, ALAB-613, 12 NRC at 321.
11/
10 CFR 52. 720 (h) (2) (ii) and 2.74 4 (e) (1974).
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involving this very reactor.
Consumers Power Company (Midland Plant), CLI-74-27, 8 AEC 4 (1974).~~12/
i The Commission did so j
explicitly because it doubted the usefulness of interlocutory review of discovery requests.
The Commission stressed in Midland that (8 AEC at 6):
A requirement of interlocutory review contri-butes to delay in adjudication, forcing parties and boards to await Commission rulings before proceeding.
Second, the rules require that this Commission review board determinations as to what details of discovery are necessary to a proper decision and what materials are not reasonably obtainable elsewhere.
As we explained in Virginia Electric and Power Co. [CLI-74-16, 7 AEC 313 (1974)],
in procedural matters, only the Licensing Boards have "first-hand contact with and appreciation for all the circumstances" surrounding a particular case.
For this reason, the Commission is hardly in a position to second guess its own boards with respect to such factual details.
Finally, the rule accords a preferential status to Commission per-sonnel and documents, while discriminating against other parties (applicants and intervenors) who can-not invoke Commission review of their refusals to respond to. discovery.
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See also, 40 Fed. Rec. 2973 (January 17, 1975),
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i The rule change permitted "the presiding officer in his discre-j f
tion" to allow discovery from the staff (40 Fed. Reg. at 2973),
and reflected an express Commission purpose te place " maximum reliance" on his determinations.
See 8 AEC at 5.
We must, of j
course, implement that policy.
1 4.
Returning to the f acts of this case, we note that the Licensing Board set forth at length its reasons for concluding that the applicant must be allowed to depose Mr. Thornburg.
Our ruling on the merits of that question might or might not be th e s ame.
But at our present distance from the proceeding, we doubt that our judgment would be better than the Licensing Board's.
For the reasons just stated, we n.ay not "second guess" that Board.
i Rather, we may take up this referral only if there is an indica-tion that the Board abused the discretion the Commission gave it in this area.
1 The staff's papers proffer essentially three reasons for granting interlocutory review with an eye to overturning the discovery order in question:
(1) that the Board below improperly allowed the deposition of a "non-witness;" (2) that a " senior staff division director" is immune from the discovery process even in exceptional circumstances; and (3) taking Mr. Thornburg's j
i deposition now will perforce vitiate a staff claim of " executive privilege."
None of them is persuasive.
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(a)
To begin with, whether or not the person to be deposed i
will later be called to testify as a witness is irrelevant for discovery purposes.
The test is, rather, whether " the informa-tion sought appears reasonably calculated to lead to the discovery of admissible evidence."
It is frequently not until af ter a deposition is taken that a party can tell whether the deponent will be needed as a testimonial witness.13/
The staff's objection puts the cart before the horse.
r (b)
The rules in terms exempt all NRC personnel freire-sponding to discovery requests unless the Executive Director for Operations makes them available or a licensing board finds that l
" exceptional circumstances" necessitate their doing so.
Tacitly recognizing that the rules contain no express exception for "a senior staff division director," the staff would apparently have us infer one.
We note, however, that the identical provision of the 1975 amendments to Section 2.720 (h) that placed both "the Com-mission and named NRC personnel" beyond the range of a licensing board subpoena expressly allows the subpoena "of named NRC person-nel" in " exceptional circumstances."
In short, the Commissioners j
considered whether to allow any exceptions from the reach of a licensing board's discovery subpoena in " exceptional circumstances"
-- and chose to exempt only themselves.
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See, generally, 4 Moore's Federal Practice (1979 ed.)
526.56[4).
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l The staff suggests no basis for reading into Section 2.720(h)
(2) (ii) an additional exception for a " senior staff division director.'
We therefore cannot conclude that the Licensing Board abused its discretion in declining to do so, particularly when that Board believer iat the individual in question might have important and material information not available elsewhere about a serious safety question in issue before it.
See 13 NRC at (slip opinion at 8).14/
(c)
Finally, the staff sees the subpoena to Mr. Thornburg as sanctioning an inquiry into the staf f's decisional processes and " privileged communications" among senior officials.
The short answer is that the Board's order in terns allows inquiry only into " facts" communicated by Mr. Thornburg to his superiors and proscribes inquiry into his recommendations to them or other deliberative information.
13 NRC at (slip opinion at 11).
i Should the applicant's questions stray into protected areas, as the applicant itself concedes, "the staf f may object and instruct Mr. Thornburg to refuse to answer pending a ruling by the Li-censing Board."
(Applicant's memorandum at 5-6.)
In these cir-cumstances, the staf f will not waive any claim of " executive privilege" merely because Mr. Thornburg is deposed.
There is 14/
Cf., Virginia Electric & Power Co. (North Anna Station),
EfI-74-16, 7 AEC 313, 314-15 (1974).
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time enough to consider that difficult question when (and if) it actually arises.15/
5.
In sum, the Board's order was not abusive of delegated discretion and we find no cause to review it now.
Accordingly, the referral is declined; our disposition of the matter leaves no occasion to consider whether the deposition should be stayed.
It is so ORDERED.
FOR THE APPEAL BOARD O_.M
-bM C. Je g B1snop
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Secretary to the Appeal Board
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While we do not reach the issue, the existence of that
" executive privilege" is touched upon by the Board be-low, 13 NRC at (slip opinion at 10), and by Judge Smith in Consumers Power Co. (Palisades facility), ALJ-80-1, 12 NRC 117 (1980).
See also Virginia Electric &
Power Co. (North Anna Station), supra, CLI-74-16, 7 AEC 313.
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