ML20081B175

Motion to Compel CPC Responses to 831011 Interrogatories & Request for Production Re Investigation of Alleged Violation.Certificate of Svc Encl

ML20081B175
Person / Time
Site:	Midland
Issue date:	10/25/1983
From:	Bernabei L GOVERNMENT ACCOUNTABILITY PROJECT, STAMIRIS, B.
To:	Atomic Safety and Licensing Board Panel
References
78-389-03-OL, 78-389-3-OL, 80-429-02-SP, 80-429-2-SP, ISSUANCES-OL, ISSUANCES-OM, ISSUANCES-SP, NUDOCS 8310270345
Download: ML20081B175 (7)

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s- o UNITED STATES OF AMERICA V NUCLEAR REGULATORY COMMISSION DOCKETED USHRC ATOMIC SAFETY AND LICMfSING BOARD Before Administrative Judges 3 007 26 N0:26 Charles Bechhoefer, Chairman Dr. Frederick P. Cowan Dr. Jerry Harbour f)[C fi dCh-[/.

BRAflCH a

ASLBP Nos.. 78-389-03 DL

) 80-429-02 SP

- In the Matter of )

) Docket Nos. 50-329 OL

) 50-330 OL CONSUIERS POWER COMPANY

) -

(Midland Plant, Units 1 and 2) ) Docket Nos. 50-329 OM

) 50-330 OM

)

INTERVENOR BARBARA STAMIRIS' IOTION TO COMPEL CONSUMER POWER COMPANY'S RESPONSES TO INTERVENOR'S INTERROGATORIES,AND REQUEST POR PRODUCTION On October 11, 1983, intervenor Barbara Stamiris filed discovery requests of Consumers Power Company (" Consumers") concerning the pupplemental Office of Investigations' Report and investigation on the alleged violation of the Board Order.

On or about ocbober 20, 1983, Mrs. Stamiris was served with Consumers' Objections to her Interrogatories and Production Requests, but not with any dommes or interrogatory responses.

Af ter speaking with Judge Bechhoefer on October 24, 1983, counsel for Consumers and Mrs. Stamiris negotiated to settle as many outstanding discovery disagreements as possible.

Mrs. Stamiris moves to compel answers only as to those interrogatories and document requests as to which tha parties have been unable to agree.

Interrogatory No. 1 Consumers objected during negotiations to identification of documents responsiste to intervenor's document request which are no longer in Cdnstaners' possession because of the difficulty in obtaining information necessary for identification of these documents.

G310270345 831025 PDR ADOCK 05000329 G PDR 3

o O (2)

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Intervenor believes that this interrogatory could easily have been answered at the tLae Consumers made its search for documents responsive to intervenor's document request. In addition, Latervenor believes this interrogatory could be easily answered from information and documents gathered during the internal Consumers' investigation of the violation of the Board Order. Therefore, inter-venor believes this interrogatory is not burdensome and will lead to the discovery of relevant information.

Interrogatory No. 16 Defendant has objected to answering this interrogatory primarily on the ground that it is burdensome and overly broad. Intervenor believes the tafor-mation sought is central to Mr. Ronk's credibility and an understanding of the method (s) by which Consumers obtained NRC approval for activities potentially covered by the Board's Order.

. Mr. Ronk stated, according to his interview in the Supplemental OI Report that some of the activities listed La his May 11, 1982 memorandum had been subnitted to the NRC for approval at a time prior to May 11, 1982. The clear implication of this statement is that Consumers was not, therefore, obligated to request approval for all activities listed in this memorandum. It is impor-tant to determine if Mr. Ronk's statement can be substantiated and whether or not Consumers had requested approval for any activities listed in the May 11, 1982 memorandum proir to the date of the memorandum. In addition, the infor-t mation should be readily available to Consumers in the form of formal or infor .

mal submittals from Consumers to the NRC Staff.

Interrogatory Nos. 18 and 19 Defendant objects to answering these interrogatories primarily on the basis that the search required to obtain the information is overly burdensome.

Intervenor believes information about the meetings and discussions internal to Consumers and Bechtel is relevant and central to several issues:

(1) What procedures and guidelines did Consumers and Bechtel follow in

(4) sumers compiled in its. in-house investigation would not be available to Mrs. Stamiris in any other way. In addition, given that the focus of Consumers' investigation is precisely the focus of this Board, it is likely that most of the information will be critical to the Board violation issue.

Document Request No. 4 Applicant objects to producing responsive documents largely because it believes the search would be overly burdensome. Consumers Vice-President James Cook claims he believed the May 25, 1982 NRC Staff letter gave Consumers permission to excavate below the deep Q duct bank. Therefore, documents generated in connection with that alleged NRC approval are directly relevant to Consumers' claim that it had been given approval for the excavation. Intervenor believes that if this request were limited to those documents generated in connection with the NRC's alleged grant of approval in the NRC's May 25, 1982 letter Consumers could easily conduct a ibnited search for those documents.

Document Request No. 7 Applicant objects to this document request on the grounds that it improperly calls for legal conclusions of Consumers employees and that applicant's attorneys cannot determine which documents sre responsive.

Intervenor believes documents which Consumers employees and management view as probative of the fact Consumers needed NRC approval for the excavation and the fireline relocation is relevant information and readily available from Consumers and Bechtel employees. Clearly these same employees every day make decisions as to which activities need NRC approval. Pursuant to the Board's Order, therefore, they are competent to identify and produce documents which mention, refer' to, or indicate that Consumers needed NRC approval for the deep Q bank excavation and relocation of the fireline.

(3) determining what activities were covered by the Board Order?

U (2) What procedures and guidelines did Consumers and Bechtel use to deter-mine which activities were excluded?

(3) Which persons in Consumers and Bechtel made the final decision (s) on the issue when a disagreement arose?

Further, as requested in Interrogatory No. 19, the activities which were finally determined by Consumers and Bechtel to be covered by the Board Order would be probative of Consumers' view of the Board Order and view of any agree-ment between Consumers and the NRC Staff to exclude any items from coverage of the Board Order.

Interrogatory Mo. 33 and Document Request 6 Intervenor clarified for applicant that Interrogatory No. 33 was directed generally to Consumers and not to any particular individual. Considering that clarification, applicant's counsel said he would object to producing information about Consumer's Laternal investigation into the violation of the Board Order on the grounds of attorney work product. Further, applicant said it would provide a list of all responsive documents in making its claim of privilege.

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/.ccording to the Hickman v. Taylor, 329 U.S. 495 (1947), work-product doctrine applicant' can claim only a qualified privilege. Therefore, if intervenor can demonstrate that the information cannot be obtained from any other source, she can overcome this qualified privilege. Intervenor cannot make this showing without obtaining a list of withheld documents. This Board must make a deter-mination at such time as a list of responsive documents is available , as to whether or not the claim of privilege is overborne by intervenor's need for the information.

This Board obviously must have enough information regarding the withheld documents to make this determination. However, it is clear that intervenor does not have access to Consumers and Bechtel employees except through this one short period of formal discovery. Therefore, much of the information Con-

Document Request 15.

See Argument with respect to Interrogatory No.19.

In addition, Mr. Brunner informed intervenor's counsel on Tuesday, October 25, 1983, that he would not provide documents produced in response to intervenor's document request in Washington for inspection and copying, but only in Midland, Michigan.

Therefore, intervenor requests this Licensing Board to order Consumers to make available for inspection and copying in Washington, D.C., all documents it produced ,

in response to intervenor's document request.

Respectfully submitted, M

LY & BERNABEI Go ern ent Accountability Project or e Institute for Policy Studies 19- Que Street, N.W.

Washington, D.C. 20009 (202) 234-9382 Counsel for Intervenor DATED: October 25, 1983 Barbara Stamiris

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l Before the Atomic Safety and Licensing Board In the Matter of: ) Docket Nos. 50-329-OL

) 50-330-OL CONSUMERS POWER COMPANY ) 50-329-OM

) 50-330-CM (Midland Plant, Units 1 and 2) ) -

)

\ ,

j CERTIFICATE OF , SERVICE I hereby certify that copies of the foregoing INTERVENOR l

I BARBARA STAi! IRIS' M.OT..I_ON TO COMPEL CONSlHER H WER COMPANY'S RESPONSES TO INTERVENOR'S

. INTERROCATORIES AND REQUEST FOR PRODUCTION were mailed, proper postage prepaid, this 2hh_ day of October, 1983, to:

I CCharles Bechhoefer, Esq. Frank J. Felley l Administrative Jia".ge. -

Attorney General State of Michigan i Atomic Safety and Licensing Board Steward H. Fresnan U.S. Nuclear Regulatory Comnission Assistant Attorney Gemral Washington, D. C. 20555 Envimm.iutual Protecticr. Division

' 525 W. Ottawa Street, 720 Iaw BM1d4=y

• Dr. Jerry Harbour Iansing, Michigan 48913 l

l Administrative Judge Atcrnic Safety and Licensing Board Ms. Mary Sirw lair

U.S. Nuclear Ngulatory comnission 5711 Sunnerset Street thshington, D. C. 20555 11dland, Michigan 48640 Dr. Frederick P. OcWen Ms. Barbara Stamiris Administrative Judge 5795 N. River 6152 N. Verde Trail, Apt. B-135 Freeland, Michigan 48623 Boca Raton, Florida 33433 Wendell H' Marshall, Presid e t James E. Brmner, Esq. Mapletcr1 Intervences Consuners Power Ompany RED 10 212 West Michigan Avenue Midland, Michigan 48640 Jackson, Michigan 49201

• Docketing and Service Section -

U.S. Nuclear Regulatory Ocmnission Washington, D. C. 20555 I

4 Myron M. Cherry, P.C.

Peter Flynn, P.C.

Cherry & Flynn Three First. National Plaza suite 3700 011cago, Illinois 60602 CAtcmio safety and Licensing Board U.S. Nuclear Regulatory Ctzmission Washington, D.~C. 20555 CAtomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Ccrmissiczi Washington, D. C. 20555 Steve J. Gadler, P.C.

t 2120 Carter Avenue St. Paul, M4 55108 ,,

l Frederick C. Williams, Esq.

l Isham, Lincoln & Beale 1120 Comecticut Avenue, N.W.

Washington, D.C. 20036

• WLiliarn D. Paton, Esquire Office of Dcecutive Legal Director U.S. Nuclear Regulatory Ctmnissico hhshington, D. C. 20555 Philip Steptoe Isham, Lincoln and Beale /

Counselors at Law ,

y One First National Plaza

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l Forty-Second Floor '

Chicago, IL 60603 ,

1 i '

l L ,

i CDelivered through the NRC internal mails.

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