ML20081C936

Motion to Stay ASLB 830831 & 1006 Orders Denying Deponent Motion for Reconsideration of Motion to Quash Subpoenas Pending Aslab Decision on Deponent 831021 Appeal.Certificate of Svc Encl.Related Correspondence

ML20081C936
Person / Time
Site:	Midland
Issue date:	10/26/1983
From:	Karr J GOVERNMENT ACCOUNTABILITY PROJECT
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
78-389-03-OL, 80-429-02-SP, ISSUANCES-OL, ISSUANCES-OM, ISSUANCES-SP, NUDOCS 8310310390
Download: ML20081C936 (5)

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UNITED STATES OF AMERICA

! NUCLEAR REGUL ATORY COMMISSION DDLKETED USNFC ATOMIC SAFETY AND LICENSING APPEAL BD^ R30T 27 A10:55 CFiiCE ~F 5ECRL ;,.

ASLBP Nos. 78-@9-TiyOL' 3Er. '

' 80-429-02E S P In the Matter of )

Docket Nos. 50-329 OL CONSUMERS POWER COMPANY 50-330 OL

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(Midland Plant, Units 1 and 2)

Docket Nos. 50-329 OM 50-330 OM

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GOVERNMENT ACCOU NT ABILITY PR OJE CT'S

. MOTION TO STAY DEPOSITIONS i,

' The Government Accountability Project ("G AP") depo nents Louis Clark, Thomas Devine, Billie Pirne r Garde and Lucy Hallberg, pursuant to 10 C.F.R. Sec.

2.788 and through undersigned counsel, hereby move for a stay of the effectiveness

of the Atomic Safety and Licensing Board (" Licensing B oard") Order of August 31, 1983, denying deponent s Motion to Quash Subpoenas, and of the Licensing Board 0 Order of October 6,1983, denying deponents' Motion for Reconsideration, pending N

j a decision by the Atomic Safety and Licensing Appeal Board (" Appeal Board") on H

l deponents' appea1, filed on October 21, 1983, from the Orders of the Licensing Board.

1. Background

1 Applicant Consumers Power Company (" Consumers") has noticed the depositions for four G AP staff members. GAP filed a Motion to Quash subpoenas, j i

arguing, inter alia, that the First Amendment to the Uni ted States Constitution protect-ed them against having to disclose information given to GAP in confidence by confidential sources. After oral argument, the Licensing Board granted a Motion to an * =

...w, Quash filed by int ervenors, but denied GAP's Motion to Quash in a Memorandum and

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B310310390 831026 PDR ADGCK 05000329 G PDR

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Order of August 31, 1983 Subsequently, on septemb er 30,1983, GAP filed a Motion for Reconside 'n' and for a stay, which was denied by the Licensing Board on October 6,198 3 The Licensing Board's October 6 Order stated, at p.11, para. 5: "Since (as discussed in the conference calD none of the deposi.tions in question is now propos-ed to commence prior to Octob er 18,1983, and given the result we are reaching herein, we need not furthe r consider the GAP deponents' request for a stay of our l earlier Order." The October 6 Order concluded:

I i For the reasons stated, it is, this 6th day of October,1983 i

f ORDERED That, subject to the conditions outlined, y the GAP deponents' Motion for Reconsideration

' of LBP-83-53 and for a stay of the depositions i: is denied.

Deponents accordingly understand that the Licen sing Board has denied Geir request t

for a stay of the depo sitions, and that an application for a stay to this Board is r.ow ripe.

! GAP records are currently noticed for production on October 27, 1983; I

-l Louis Clark is noticed to be deposed on November 10,1983; Lucy Hallberg is noticed 1

l j to be deposed on November 22, 1983; Thomas Devine is noticed to be deposed' on December 1,1983; and Billie Pirner Garde is noticed to be deposed on December 15,

'i 1 1983 I

h i Deponents / appellants now request a stay of the Licensing Board's Orders

pending this Board's decision on their appeal from those Orders.

l 11. Appellants' Have Satisfied The Standard For Grant Of Stay Pending The Appeal Board's

, Decision m."'",

• f.I' Pursuant to 10 C.F.R. 2.788, an Appeal Board must consider the

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i following in determining whether to grant a stay:

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(1) Whet her the moving party has made a strong showing that it is likely to pre vail on the merits; (2) Whet her _the party will be irreparably injured unless a stay is granted; (3) Whether the gran ting of a stay would harm other parties; and (l.) Where the public interest lies.

In this case all four factors weigh in GAP's favor. First GAP has made a strong showing in its brief in support of its appeal that it will succeed before this Board.

Second, appellants will be irreparably harmed if they are forced to i

submit to depo sitions which they believe call for privileged information before resolu-

tion of their appeal . Also, if as GAP strongly believes, the confidentiality of their witnesses is breached, the organization's ability to collect inf ormation on safety ll problems at nuclea r plants will be irreparably crippled.

i Third, the information being sought in the G AP depositions is relevant to contentions which will not be litigated until1985 or 1986. Currently the NRC is il conducting investigations into GAP witnesses' allegations and certainly no hearings on these issue s will be scheduled until after these investigations are over. Consumers will not be harmed by the grant of a short stay.

Finally, this appeas to be a case of fint imp ression for the Appeal i

iljBoard and for the Nuclear Regulatory Commission as a whole. It is to the benefit of

! all the parties, and indeed t he ad judicatory process itself, that sensitive claims of privilege be settled on as complete a record as possible. Certainly it is to Consumer's i

l as well as GAP's benefit that if this issue is to be settled finally in the federal courts

, that the NRC have the opportunity to consider carefully all legal and factual arguments

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. .. prior to fashioning its decision.

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1 Moreover, it cannot be denied that both the adjudicatory branch of the

' Commission and the NRC staff wish to ensure the confidentiality of GAP witnesses.

And, it cannot be denied that up to this point GAP's ability to gather important and relevant information about potential safety problems at Midland , Zimmer, and other nuclear powe r plant s under construction have aided the Ccmmission in its primary duty to protect the public health and safety. GAP!s request for a stay pend-ing the Appeal Board's decision on GAP's pending appealis reasonable in light of the serious harm which it believes will befall both it as an organization and its witnesses if the stay is denied.

III. Conclusion l For the foregoing reasons, GAP respectfully requests a stay from this Appeal Board pending its determination of GAP's appeal from the orders of the l Licensing Board.

Respectfully submitted, f

ohn W. Karr

, 625 Washington Building Washington, D.C. 20005 Attorney for Appellants i

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4 BA3A G kveces wissetses? . D.8. Seems Il

9 CERTl FICATE OF SERVICE %h,f I hereby certify that copies of the foregoing were mailed this 7,dg

'83 OCT 27 A10:56 day of f ,1983, to the following persons:

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Frank J. Kelley, Esq. Atomic Safety & C:02Mi!h ~ A.ppia'If Panel

? Attorney General of the U. S. Nuclear Regulat " 'Uom m .

j, State of Michigan Wa shington, D.C. 20555 I: Carole Steinberg, Esq.

ii Assistant Attorney General Mr. Scott W. Stucky Env'ironmental Protection Div. Chief, Docketing & Services  ;

d l 720 Law Building U. 5. Nuclear Regulatory Comm.

lji 12nsing, Michigan 48913 Office of the Secretary ii Wa shington, D.C. 20555 h Cherry & Flynn Suite 3700 Ms. Mary sinclair 3 First National Plaza 5711 Summerset Street -

Chicago, Illinois 60602 Midland, Michigan 48640  !

Mr. Wendell H. Marshall William D. Paton, Esq.

4625 S. Saginaw Road Counsel for the NRC Staff -

Midland, Michigan 46640 U. S. Nuclear Regulatory Comm. i' Wa shington, D. C. 20555 ,

! Charles Bechhoefer, Esq. ,

Atomic Safety & Licensing Atomic Safety & Licensing Board Panel ,

Board Panel U. S. Nuclear Regulatory Comm. l-U. S. Nuclear Regulatory Comm. Wa shington, D. C. 20555

. Wa shington, D . C . 20555 j Jerry Harbour i Dr. Frederick P. Cowan Atomic Safety & Licensing Board Panel 6152 N. Verde Trail U. S. Nuclear Regulatory Comm.

Apt. B-125 Wa shington, D.C. 20555 Boca Raton, Florida 33433 Lee L. Bishop James E. Brunner, Esq. Harmon & Weiss Consumers Power Company 17251 Street, N. W. #506  !

212 West Michigan Avenue Wa shington, D.C. 20006 Jackson. Michigan 49201 Ms. Lynn Bernabei i i Mr. D. F. Judd Government Accountability Project of  !

Babcock & Wilcox the Institute for Policy Studies P. O. Box 1260 1901 Q Street, N. W. -

Lynchburg, Virginia 24505 Wa shington, D.C. 20009  !

Barbara Stamiris David Stahl 5795 North River Road Route 3 Susan D. Proctor l Freeland, Michigan 48623 Isham, Lincoln & Beale l Three First National Plaza  :

= * = * = Steve Gadler Chicago, Illinois 60602 I 2120 Carter Avenue l

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• St. Paul, Minnesota 55108 I

'ohn W. Karr

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