ML20082U031
| ML20082U031 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 12/09/1983 |
| From: | Proctor S CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8312160217 | |
| Download: ML20082U031 (52) | |
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5 DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'83 DEC 14 P3:02 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD m -
In the Matter of:
)
Docket Nos. 50-329 OM
)
50-330 OM CONSUMERS POWER COMPANY
)
Docket Nos. 50-329 OL (Midland Plant, Units 1 & 2)
)
50-330 OL HEMORANDUM OF CONSUMERS POWER COMPANY IN r'
OPPOSITION TO APPEAL OF GOVERNMENT ACCOUNTABILITY PROJECT DEPONENTS 1
Consumers Power Company
(" Consumers" or "the Ap-plicant"), by and through its attorneys, submits its Memo-randum in opposition to the Appeal of Louis Clark, Thomas j
Devine, Billie Pirner Garde and Lucy Hallberg of the Govern-
~
ment Accountability Project.
STATEMENT OF FACTS This appeal arises from the denial by the Atomic-Safety and Licensing Board ("the Licensing Board") of a motion to quash subpoenas duces tecum for the depositions of Louis Clark, Thomas Devine, Billie Pirner Garde'and Lucy Hallberg of the Government Accountability Project ("the. GAP deponents"), and for the production of certain documents in
-their possession.
These subpoenas were originally issued by.
the Licensing Board, pursuant to Consumers' ' Application, on 8312160217 831209 PDR ADOCK 05000329
.O
. PDR _ _
0 b
July 8, 1982.
The Application stated that the GAP de-ponents had submitted affidavits from anonymous sources to the Nuclear Regulatory Commission.
These affidavits re-portedly alleged a pattern of poor quality work at Consumers' Midland Plant.
The Application further stated that these persons also gave extensive information concerning these allegations of poor quality work to the press.
The Appli-l cation emphasized that Consumers was not seeking the iden-tity of the affiants but only information relevant to the licensing and operating proc'eedings, in particular, copies of the Affidavits themselves.
A copy of the Application, with attachments, is attached as Exhibit A.
By its Order of December 30, 1982, the Licensing Board accepted revised contentions of the Intervenor Mary Sinclair.
Certain of these contentions were based upon the newspaper articles containing information received from the anonymous affiants.
(Tr. 8359, 19118).
Service and enforcement of the subpoenas upon the GAP deponents were delayed by agreement, in September, 1982, of the Applicant and the Staff to permit the NRC Region III opportunity to conclude its investigation of related alle-gations prior to discovery.
In April 1983, the Applicant advised that it wished to begin discovery on tnese issues, so that it could prepare for anticipated operating license hearings involving these issuss.
The Staff indicated it did 4
e not object.
Memorandum & Order, LBP 83-53 (Aug. 31, 1983).
The subpoenas were served on May 10, 1983.
The GAP deponents filed a Motion To Quash on June 27, 1983.
The Applicant and Staff filed responses in opposition to the motion.
While indicating such an order was unnecessary in view of the limited nature of vae requested discovery, Applicant stated it would not object to the entry of a Pro-tective Order securing the anonymity of the affiants who had provided information.to the GAP Deponents.
(Tr. 19132-35).
After oral argument, the Licensing Board denied the Motion to Quash and entered a Protective Order.
Memorandum and 1
Order, LBP 83-53 (Aug. 31, 1983).
The Protective Order establishes procedures to assure that the identity of the affiants remains anonymous, including protection from the release of any " identifying information" and from any in-advertent disclosures.
A copy of the Protective Order is attached as Exhibit C.
On September 30, 1983, the GAP deponents filed
.their Motion For Reconsideration and Request For Stay.
After oral argument on October 5, 1983, the Licensing Board issued an order on October 6, 1983 denying both motions but i
imposing certain additional procedures to be followed at the depositions.
The GAP deponents filed their appeal on October 21, 1983.
Subsequently, the GAP deponents, on October 26, 1983,..
a i
i moved this Board for a stay, a request which was denied on October 28, 1983.
Despite their failure to obtain a stay, the, GAP deponents failed to appear for a records deposition previously noticed for October 26, 1983.
Further, the GAP deponents have advised the Licensing Board that they will not obey the subpoenas unless ordered to do so by a United States Court.
GAP Deponents' Response to Applicant's Motion to Compel and Application for Enforcement of Subpoenas (Nov. 4, 1983).
ISSUES 1.
Whether the qualified First Amendment pri-vilege against disclosure afforded the press should be extended to the GAP deponents, members of a self-styled public-interest law firm?
2.
Whether the Licensing Board abused its dis-cretion in finding that the need for disclosure outweighed i
GAP's interest in withholding information concerning work quality at the Midland Plant?
3.
Whether the GAP deponents have a common-law privilege against disclosure?
ARGUMENT A fundamente?, tenet of the American system of
_4
justice is that all relevant evidence must be made available for resolution of disputes unless there are substantial overriding policy considerations.
The federal courts have held that "'the public.
has a right to every man's evidence' except for those persons protected by a consti-tutional, common-law or statutory privilege."
Branzburg v.
Hayes, 408 U.S.
665, 688 (1972).
Such privileges "are not lightly created or expansively construed, for they are in derogation of the search for truth."
United States v.
Nixon, 418 U.S.
683, 710 (1974).
The Federal Rules of Civil Procedure incorporate this principle in authorizing discovery of all relevant evidence not privileged.
Rule 26 (b) (1), Fed. R. Civ. P.
The United States District Courts are granted broad dis-cretion in supervising the extent of discovery, Rule 26 (c),
Fed.
R. Civ.
P.,
and are to construe the rules liberally.
Rule 1, Fed.
R. Civ. P.
The Commission has adopted the discovery rules of the federal courts end has indicated that the Licensing Boards also have broad discretion in over-seeing the conduct of discovery.
Statement of Policy, 13 N.R.C. 452 (1981).
The context of the claim of privilege made here is especially significant, because the interest in disclosure of.he requested information is not that of the Applicant alone.
The public has a significant interest in assuring l l
l
k that the allegations of poor quality work at the Midland Plant are brought into the open and closely scrutinized.
The GAP deponents' adamant refusal to respond to the sub-peona, while " leaking" selected portions of the information to the press defeats that objective.
This Board has, in similar situations, not tolerated such obstruction of jus-tice:
The Applicants in particular carry an unre-lieved burden of proof in Commission proceedings.
Unless they can effectively inquire into the positions of the intervenors, discharging that burden may be impossible.
To permit a party to make skeletal contentions, keep the bases for them secret, then require its adversaries to meet any conceivable thrust at hearing would be patently unfair, and inconsistent with a sound record
[ footnote omitted).
Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2) 15 N.R.C. 1400, 1417 (1982),
In proceedings before the Licensing Board, Appli-cant and Staff both took the position that the Board need not address the issue whether GAP is entitled to claim the protection of any privilege, since Applicant made it clear that it was not seeking disclosure of that which most con-
~
cerned GAP, the identity of the anonymous affiants.
(Tr.
19127).
Rather, Applicant's attorneys stressed that they were interested only in disclosure of the affidavits them-selves and the facts surrounding the preparation of those Affidavits.
(Tr. 19127-28).
In light of this position, the Licensing Board concluded that it need not reach the.
question whether either privilege extended to GAP.
The Licensing Board undertook, however, to balance the need for disclosure against GAP's asserted need for confidentiality, as if the privilege existed.
In view of the protections imposed by the Licensing Board's orders, it found that the need for disclosure should prevail.
The position of the Applicant remains that ex-pressed before the Licensing Board:
that GAP has no pri-vilege of any kind -- constitutional, statutory or common law -- behind which it can hide what it has always pro-claimed is evidence of serious deficiencies; but that in any event the Appeal Board need not ree.ch the issue of pri-vilege since the Applicant does not seek to learn the iden-tity of the anonymous affiants and the Licensing Board has, based on its balancing of interests, entered a Protective order which ensures that Applicant can gain access to the underlying facts while protecting the anonymity of GAP's
" sources."
Indeed, it is difficult to determine what con-tinuing controversy exists that needs to be resolved by the Appeal Board.
The record indicates that the Licensing Board reached a fair and just result, clearly within its dis-cretion.
The appeal should, therefore, be dismissed and the GAP deponents required to respond to the previously issued subpoenas. I
I.
The GAP Deponents Have No First Amendment Pri-vilege Privileges, since they run counter to the ideal of full discovery and truth-seeking, are not favored by the i
law.
Consequently, the burden rests on the objecting wit-ness to prove the existence of the privilege.
Solargen Electric Motor Car Corp. v. AM Motors Corp., 506 F.Supp.
j 546, 549 (N.D.N.Y. 1981).
Essentially, GAP contends that it enjoys the quasi-privileged status sometimes afforded the press to protect its confidential information.
To date, this privilege has only applied where the objecting witness is a member of the press or similarly in the business of disseminating news and information to the public.
It has not, and should not, be applied in this case where the party asserting the privilege is an entity collecting information
+
for its own purposes.
The press enjoys a qualified privilege to withhold.
confidential information.
Herbert v. Lando, 441 U.S. 153, 175 (1979).
This right evolved in recognition r.f the role of the press in news gathering in order tc disseminate the information.
While the liberty of the press is not confined to newspapers and periodicals, nor to the organized press, the concept of the " press" does connote publication and dissemination of the information to the.public.
Apicella v.
McNeil Laboratories, 66 F.R.D. 78, 84 (E.D.N.Y. 1975) citing l l l
l
.. ~ -
I Lovell v. City of Griffin, 303 U.S. 444, 452 (1935) and Branzburg v. Hayes, 408 U.S. 665, 705 (1972).
The pro-tection of the press is, thus, founded upon the importance of preserving the flow of information to the public domain, to the " marketplace of ideas."
Apicella v. McNeil Lab-oratories, 66 F.R.D. 78, 84 (E.D.N.Y. 1975); In Re Popkin, 460 F.2d 328, 334 (5th Cir. 1972).
This aspect of the First Amendment privilege ac-corded the press has never been extended beyond those truly in the business of disseminating news and information to the public.
See Wright v. Patrolmen's Benev. Ass'n., 72 F.R.D.
l 161 (S. D.N.Y. 1976).
[Bar Association not entitled to prevent deposition of its president and committee members on grounds it provided information concerning judicial quali-fications to public in same manner as does press.]
By contrast, GAP does not disseminate information to the public, and does not allege that it does.
GAP's release of portions of the information in its possession to certain newspapers does not transform GAP.
into the " press" for the First Amendment purposes.
In reality, the GAP deponents are simply themselves press sources whose identity is known.
It is well established that the source cannot assert the privilege.
See U.S. v.
Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980).
[First Amendment privilege belongs to reporter, not his sources.] _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _.
s GAP would have this Board believe that the First i
Amendment privilege of the press has been broadly applied to l
I
" scholars and other information-gathering organizations."
Memorandum, at 5.
Of the three cases cited by GAP in which this privilege was considered for academic researchers, one court explicitly held that its ruling was not based on any 1/
2/
asserted privilege.-
The other two decisions are based upon one of the cases reversed in Branzburg v. Hayes, 408 U.S. 665 (1972) and are,.therefore, no longer good authority.
In fact, attempts to apply the broad First Amend-ment protections in press cases to situations involving scholars have been resisted.
In a case quite analogous to the instant one, the court ordered a non-party researcher's deposition testimony and production of his research data.
Wright v. Jeep Corporation, 547 F.Supp. 871 (E.D.Mich.
1972).
To the researcher's objections that such testimony and production would have a chilling effect on his and other researcher's activities, the court replied:
[T]he court does not believe that com-pelling Professor Snyder to testify violates any first amendment rights.
The protection of the first amendment is designed to afford the right to write and to speak.
It does not give a right to 1/
Richards of Rockford, Inc. v. Pac. Gas & Elec.
Co., 71 F.R.D.
388; 389 at n. 2 (N.D. Cal. 1976). -
2/
In Re Popkin, 460 F.2d 328 (5th Cir. 1972).
In Re Falk, 382 F.Supp. 938 (D. Mass. 1971). -__
withdraw material written and published from public scrutiny, nor does it give a right to refuse to disclose facts discovered as a result of observations that are relevant.in making a judgment as to the correctness of the researcher's pub-lished conclusions.
547 F.Supp. at 875.
GAP is attempting to withhold affidavits it has previously released to both the NRC and the press.
GAP also is re-fusing to permit examination of those allegations and to disclose any facts relevant to ascertaining the correctness of the all'egations.
The fact that GAP persists in describing itself as a public-interest law firm does not endow GAP with any particular privileged status under the Constitution.
Ex-tending such a preferred position, which has historically i
been restricted to "the press", to. GAP would be a dangerous precedent which would at best complicate and at worst totally frustrate the efforts of this Commission as well as other administrative and judicial bodies to develop factual records upon which to make a decision.
Under GAP's position, any person who possessed relevant knowledge could withhold that information from a tribunal simply by asserting that it was a "public interest" entity engaged in the collection and ~
dissemination of information.
The absurdity of such a re-sult is obvious, yet that is precisely-the position taken by GAP.
It should be soundly rejected.
i j
l II.
The Balance Of Interests Weighs In Favor Of Dis-l closure of The Information Sought To Be Withheld By The GAP Deponents Even if the First Amendment privilege of the press were extended to GAP, the privilege, as the GAP deponents admit, is a qualified one.
Courts, when considering an l
asserted First Amendment privilege of non-disclosure, have traditionally balanced the need for confidentiality against the need for disclosure.
The party seeking such information Elst bear the burden of showing relevance and need; the party opposing discovery bears the burden of showing the need for confidentiality.
Bruno v. Stillman & Globe News-papers, 633 F.2d 583, 597-98 (1st Cir. 1980).
Here, the balancing of conflicting needs required by a First Amendment analysis has already been performed.
3
]
Although the Licensing Board found that the GAP deponents had no viable First-Amendment or common-law privilege, it did evaluate the' GAP motion to quash as if'these privileges were applicable.
The Board found that "[ Consumers] did have a need'to discover information relevant to the contentions 4
and that it has been unable to obtain the information else-where."
order LBP 83-53 (August 31, 1983), at 10.
The Board further found that under its protective order there was no risk to GAP's " institutional integrity."
Id. at p.-
9.
Since the Licensing Board's findings do not constitute
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i 1
an abuse of discretion, its ruling must stand.
Consumers 4
Power Company (Midland Plant, Units 1 and 2), 13 N.R.C.
96, 100 (1981).
The need for disclosure of the affidavits is i
clear.
The Licensing Board noted that "the contentions which question the QA practices of the Applicant or its contractors.
. were based in part on newspaper accounts."
Memorandum and Order, LPP-83-64 (October 6, 1983).
The information sought is obviously relevant, in fact central, to the proceedings.
At the time that the Licensing Board accepted the revised contentions, it stated that "we will not rely on anything that is in those affidavits without having a chance to cross-examine the persons who made those affidavits and having the parties cross-examine them."
(Tr.
1959-60).
Thus, the very basis for accepting the conten-tions was the Licensing Board's understanding that there would be full disclosure of the information, with appro-priate procedures for protecting the identity of the af-fiants.
(Tr. 9859).
The Applicant has been unable to obtain copies of i
these affidavits.
Application for Deposition Subpoenas, 12.
As GAP concedes, these materials cannot now be sought from-the NRC Staff.
Memorandum, at 8.
.Obviously, the anonymous affiants themselves cannot be approached.
There are contra-i
-dictions in the record whether Ms. Sinclair or_her repre-.
1 sentatives have been provided copies of these affidavits.
Ms. Bernabei, in oral argument to the Licensing Board, represented that neither Ms. Sinclair or her attorneys had any of the affidavits or the information contained in them.
(Tr. 19118).
Yet, by Memorandum dated January 25, 1983, Judge Bechhoefer transmitted certain materials sent by Ms.
sinclair but not served on the parties.
Included in those materials was a copy of one of the " confidential" affi-davits.
A copy is attached as Exhibit B.
The responses of Intervenor Sinclair to Applicant's discovery requests in-dicate that all documents supporting her contentions have i
already been produced, and no additional affidavits have appeared.
To be weighed against the interests of the Ap-plicant and the public in having access to any information concerning the quality of work at the Midland plant, is GAP's purported interest in maintaining confidentiality.
GAP has the burden of establishing that there is a need for such confidentiality, including the fact that the communi-cations were made and maintained in confidence.
See Wright
- v. Policemen's Benv. Assoc., 72. F.R.D. 162, 163 (S. D.N.Y.
1976).
Again, there is conflicting evidence in the record whether this material has, in fact, been maintained as confidential.
While the GAP deponents contend that the I
l information was gathered for delivery to the NRC, as the 1 i i
l
-~_
Licensing Board notes, the affidavits or the information were made available to the press (Memorandum and Order, LPP 83-63 (Oct. 6, 1983) at 7-8).
Further, Intervenor Mary Sinclair has at least one affidavit.
GAP, however, attempts to circumvent this problem, contending that even non-confidential materials warrant 4
protection.
(Memorandum at 6-7).
However, the two cases it j
relies upon for that proposition are totally inapposite to the situation at hand.
Those cases both involved reporters.
The holdings were based, in part, on the reluctance to 1
intrude on the press and, in part, on a literal interpre-l l
tation of state shield laws.
Moreover, the materials sought i
were the reporter's unpublished notes.
More on point are those decisions which have held that the First Amendment privilege does not protect non-confidential materials unless those materials directly lead to the disclosure of confi-dential sources.
Gilbert v. Allied Chemical Corp., 411 F.Supp. 505, 511 (E.D.Va. 1976).
At the very least, the lack of confidentiality weighs heavily in the balancing process.
See Criden v.
U.S.,
633 F.2d 346, 358 (3rd Cir. 1980).
Previous dis-closure, even partial disclosure, can totally defeat the claimed need for confidentiality.
See Wright v. Policemen's Benev. Ass'n, 72 F.R.D. 162, 163 (S.D.N.Y. 197 6).
In a celebrated case, the Supreme Court has rejected the argument _ _ _ _ _ _ _ _ _ _ _ _
that anyone, even the President, can prevail on a claim of generalized need for confidentiality.
See United States v.
Nixon, 418 U.S.
683, 706 (1974).
All other aspects of the need for confidentiality asserted by GAP as essential to its effectiveness as an organization have been scrupulously addressed by the Li-censing Board in its orders.
The Applicant never sought the identity of the affiants and requested that all references to identity or identifying information be deleted.
(Appli-cation for Deposition Subpoenas).
The protective order embodies these protections, and limits disclosure of all information to Applicant's counsel.
The Licensing Board established additional procedures permitting the deponents to refuse to answer those questions which might compromise the anonymity of the affiants.
(See Order LBP 83-64).
The federal courts, in attempting to balance these competing needs for information and for confidentiality, have, like the Licensing Board, tailored procedures to the specific circumstances.
E.g., Tavouldreas v. Piro, 93 F.R.D.
35, 40 (D.D.C. 1981); Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78, 86 (E.D.N.Y. 1975).
By their total refusal to honor the subpoenas, the GAP deponents place this Board in the untenable position of considering abstract rather than concrete objections.- As the court points out in Solargen Electric Motor Car Corp. v. AM Motors Corp., 506.
l l
F.Supp. 54 6 (N.D.N.Y. 1981),
. the Court is greatly bothered by the un-reasonable refusal of the journalists to even appear at their designated depositions, parti-cularly from people who belong to a profession that continually espouses the people's right to know.
These reporters cannot refuse to appear, and must instead respond to the subpoenas and assert whatever privilege they may properly in-voke in response to particular questions.
See Silkwood v. The Kerr McGee Corporation, 563'F.2d at 436-37.
Rosarlo v. The New York Times Company, 84 F.R.D. 626, 631 (S.D.N.Y. 197 9).
To maintain otherwise would go against the duty "which the citizen owes his government to support the administration.of justice by..
giving his testimony whenever he is properly summoned."
Blackmer v. United States, 284 U.S.
421, 438, 52 S.Ct. 252, 255, 76 L.Ed. 375 (1932), quoted in In
~-
Re Consumer's Union of United States, Inc., 27 F7R.D. 251, 253 (S. DIN.Y. 1963).
See Branzberg v.
Hayes, 408 U.S. at 682, 690-91, 92 S.Ct. 2657, 2661.
Id. at 552.
Even if the Board decides that the qualified First Amendment privilege should be extended in this case, GAP has failed to meet its burden of establishing that its need for confidentiality outweighs the need for disclosure of this information.
The Licensing Board imposed stringent pro-cedures to protect any legitimate interest that GAP might have.
In the words of the Licensing Board:
. GAP's desire to shield its operations from scrutiny while nevertheless permitting allegations against the applicant made'to it to be revealed anonymously to newspapers is grossly unfair to the applicant and to the adjudicatory system itself.
Board Order LBP 83-64, October 6, 1983 at p. 8.
The de-positions should be allowed to proceed in accordance.
with the procedures established by the Licensing Board.
III. GAP Has No Common Law Privilege To Withhold In-formation As an alternative to their First Amendment ar-gument, GAP claims a privilege based on compon law.
A common law privilege for whistleblowers or similar organi-zations has never been recognized.-3/
This fact alone will often result in a court's refusal to recognize."new" pri-vileges.
See Matter of International Horizons, Inc.,
689 F.2d 996, 1004 (11th Cir. 1982) [ accountant-client privilege]; U.S. ex rel. Riley v. Franzen, 653 F.2d 1153, 1160 (7th Cir.1981) [ father-child privilege]; Wright v.
Jeep Corp., 547 F.Supp. 871, 875 (E.D.Mich. 1982) [ academic privilege].
Common-law privileges, either evidentiary or testimonial, are to be strictly construed and accepted only to the very limited extent that they serve a good trans-cending the normally predominant principle of utilizing all rational means for ascertaining truth.
Trammel v. United l
l States, 445 U.S.
40, 50 (1980).
GAP contends that it can assert'a common-law 3/
The most closely analogous privilege is the so-called informer privilege, a misnomer since the privilege is held by the government and its subdivisions alone.
Roviaro l -
- v. United States, - 353 U.S. 53, 59. (1957).
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l privilece because it satisfies some of the four criteria outlined by Professor Wigmore in his treatise on Evidence.
i A court should not find a privilege to exist unless all four conditions are met.
Larkin, Federal Testimonial Privileges S1.01 (1983).
While confidentiality is the hallmark of any I
common-law privilege, the mere fact that a communication was made in express confidence, or in the implied confidence of a confidential relationship, does not create e privilege.
8 Wigmore, Evidence 52286.
In this case, GAP fails to meet three of Wignore's four conditions.
First, there is no evidence that, other than the affiant's identity, the information communicated to GAP was intended to be confidential.
On the contrary, the express purpose for obtaining the information was to trans-4/
~
mit it to the NRC.
Further, by revealing portions of this information to the press, GAP has destroyed whatever confi-dentiality may have previously attached.
In Re Blier Cedar Co.,
Inc., 10 B.R.
993, 1001 (1981) [ confidentiality may be destroyed by: waiver, public use, disclosure to third per-sons, and by contemplation ab initio that.information would be disclosed).
Second, there has been no showing that confi-t 4/
Prior to presenting this information to the NRC, GAP only requested that its affiants' identity remain anony-mous.
At no time did the NRC agree to keep all other in-formation confidential.
l
! l l
{
dentiality as to any information other than the identity of the affiants is essential to the relationship between GAP and its affiants.
As noted earlier, a generalized claim of the need to keep all communications confidential does not l
satisfy this condition.
See United States v. Nixon, 418 i
U.S.
683, 706 (1974).
GAP consistently claims that the affiants would not have contacted GAP without the assurance 4
l of confidentiality.
This need for confidentiality arises from the affiant's alleged fears of retaliation.
Where, as in this case, the anonymity of the affiants is preserved, the confidentiality essential to the relationship is main-tained.
Finally, it is clear from the analysis performed i
by the Licensing Board, that any imagined injury to GAP's organizational effectiveness does not outweigh the benefit of allowing the Licensing Board and Applicant to test the veracity and credibility of the anonymous affiants.
1 WHEREFORE, Consumers Power Company submits that i
the rulings of the Licensing Board do not constitute an abuse of discretion and should be sustained.
The appeal should be dismissed and the GAP deponents should be ordered to appear for deposition purusant to the subpoenas.
j u -
Respectfully submitted, CONSUMERS POWER COMPANY
/
AtolW By
' One of its Attorneys David M. Stahl, Esq.
Susan D. Proctor, Esq.
ISHAM, LINCOLN & BEALE Three First National Plaza suite 5200 Chicago, Illinois 60602 DATED:
December 9, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of:
)
Docket Nos. 50-329 OM
)
50-330 OM CONSUMERS POWER COMPANY
)
Docket Nos. 50-329 OL (Midland Plant, Units 1 & 2)
)
50-330 OL CERTIFICATE OF SERVICE I, Susan D. Proctor, one of the attorneys for Consumers Power Company, hereby certify that a copy of Consumers Power Company's Memorandum In Opposition To Appeal Of Government Accountability Project Deponents was served upon all persons shown on the attached service-list by deposit in the United States mail, first class.
An original and two copies were Federal Expressed to Christine Kohl, Esq., Atomic Safety & Licensing Appeal Board, U.S. Nuclear Regulatory Commission, Washington, D.C, 20555, and a copy of the same was Federal Expressed to John W. Karr, Esq.,
Karr & Lyons, 625 Washington Building, 15th Street & New York Avenue, N.W., Washington, D.C.,
20005 this 9th day of December, 1983.
/
/
wa AAS ISHAM, LINCOLN & BEALE Three First National Plaza Suite 5200 Chicago, Illinois 60602 (312) 558-7500
SERVICE LIST Frank J. Kelley, Esq.
Charles Bechhoefer, Esq.
Attorney General of the Atomic Safety & Licensing State of Michigan Board Panel Carole Steinberg, Esq.
U.S. Nuclear Regulatory Comm.
Assistant Attorney General Washington, DC 20555 Environmental Protection Div.
720 Law Building Lansing, Michigan 48913 Dr. Frederick P. Cowan 6152 North Verde Trail Apt. #B-125 Cherry & Flynn Boca Raton, Florida 33433 Three First National Plaza Suite 3700 Chicago, Illinois 60602 Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Comm.
Mr. Wendell H. Marshall Washington, DC 20555 4625 South Saginaw Road Midland, Michigan 48640 Mr. Scott W. Stucky Chief, Docketing & Services Mr. Steve Gadler U.S. Nuclear Regulatory Comm.
2120 Carter Avenue Office of the Secretary St. Paul, Minnesota 55108 Washington, DC 20555 Ms. Mary Sinclair William D. Paton, Esq.
5711 Summerset Street Counsel for the NRC Staff Midland, Michigan 48640 U.S. Nuclear Regulatory Comm.
Washington, DC 20555 James E. Brunner, Esq.
Consumers Power Company Atomic Safety & Licensing 212 West Michigan Avenue Board Panel Jackson, Michigan 49201 U.S. Nuclear Regulatory Comm.
Washington, DC 20555 Mr. D. F. Judd Babcock & Wilcox Mr. Jerry Harbour P.O. Box 1260 Atomic Safety & Licensing Lynchburg, Virginia 24505 Board Panel U.S. Nuclear Regulatory Comm.
Washington, DC 20555 Ms. Barbara Stamiris 5795 North River Road Route #3 Ms. Lynne Bernabei Freeland, Michigan '48623 Mr. Thomas Devine Mr. Louis Clark Government Accountability Samuel A. Haubold, Esq.
Project of the Institute Kirkland & Ellis for Policy Studies 200 East Randolph Drive 1901 "Q" Street, N.W.
Chicago, Illinois 60601 Washington, DC 20009
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.4-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
)
In the Matter of
)
)
CONSUMERS POWER COMPANY
)
Docket Nos. 50-329-OM
)
50-330-OM (Midland Plant Units 1 and 2)
)-
50-329-OL
)
50-330-OL CONSUMERS POWER COMPANY'S APPLICATION FOR DEPOSITION SUBPOENAS Pursuant to 10 C.F.R. SS 2.720 (a) and 2. 74 0a (a),
Consumers Power Company (" Applicant") hereby applies to the Atomic Safety and Licensing Board
(" Licensing Board")
to issue the attached deposition subpoenas to Billie P. Garde, Thomas Devine, Lewis Clark and Lucy Hallberg, commanding them to appear to give their depositions at the time and place indicated on the attached subpoenas.
In support of.this Application, Applicant states:
1.
Billie P. Garde, Thomas Devine, Lewis Clark and Lucy Hallberg are associated with the Government' Accountability-Project
(" GAP").
Acting under the auspices of GAP, these l
persons submitted affidavits to the Nuclear Regulatory Commission alleging a pattern of. poor. work quality at Applicant's Midland plant.
These persons have also given' extensive information.to the press regarding the allegations contained l
.in the GAP affidavits. -
(See Attachment No. 1, articles from i
the June 28, 1982 edition of the Midland Daily News).
-Exhibit A
.e
,e
. 2.
Applicant has been unable to obtain information regarding the allegations contained in the GAP affidavits or copies of the affidavits themselves from the NRC Staff or from GAP.
3.
The allegations contained in the GAP affidavits and the information upon which the allegations are based are relevant to the proceedings now before the Licensing Board.
In her " Response to Board's Request For Reasons For Late Filing of New Contentions", Intervenor Mary Sinclair expressed her intention to file another set of new contentions based on the " extensive documentation" of quality control and safety problems which has allegedly been supplied to GAP by workers at the ididland plant.
Applicant will be unable to evaluate or respond to such new contentions unless it is given access to the documentation supplied to GAP by the Midland workers.
4.
The allegations contained in the GAP affidavits are also relevant to the proceedings before the Licensing Board because the Licensing Board itself stated, in the conference call of July 2, 1982, that these allegations would be among the issues raised in the hearings on the f
Midland facility scheduled for October,1982.
Without access to the GAP affidavits and the information on which they are based, Applicant can neither prepare for the October hearings nor determine whether the GAP allegations are a l
proper subject for litigation.
5.
Applicant is not attempting to discover the identities of the GAP affiants.
The " Schedule of Documents
4 Requested" attached to the deposition subpoenas requests copies of the GAP affidavits with the identities of affiants and identifying information regarding them deleted.
- Moreover, Applicant will not ask for the names of the affiants during the requested depositions.
There is no need, therefore, to issue a protective order protecting against disclosure of the GAP affiants' identities.
6.
Appropriate fees will be paid to the deponents, in accordance with the 10 C.F.R. S 2.740a (h).
Once the requested subpoenas are issued, Isham, Lincoln & Beale will pick up the subpoenas from Licensing Board's offices in Bethesda and serve the subpoenas to the deponents residing in Washington, D.C.
Ms. Hallberg will be served in Michigan by a non-party, pursuant to 10 C.F.R. S 270(c).
WHEREFORE, Applicant respectfully requests that its " Application for Deposition Subpoenas" be granted and the the Board issue the attached deposition subpoenas to Billie P. Garde, Lewis Clark, Thomas Devine and Lucy Hallberg.
Respectfully submitted, G4r One of tile Attorngfys fo( /
Consumers Power Company ISHAM, LINCOLN & BEALE l
Three First National Plaza l
Suite 5200 Chicago, Illinois 60602 DATED:
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,inleemalles leeperatess of the Midlead. tracter technet encourages the pe.er.
deel wah assey. saadese ee eerene s== spes.I,sensens are needeg.ete to the eh a
beuse shuffle" because. she longer eucleer pleet may set funciles property because nnesthettaed subsutelleat were weshees take to de their jobs and the algasts telhas bem somethang is bep.
seeds of a seclear feelhay. Spect.
g esade by the plant'a cable shop.e forenee mere snetereel they ese. the mere pref >&, not heppening shee tt ia.pentag whee st isn l.ee met something le Sacettees lee o Rechtel'wdl me&d ender fra resa pied "If the apesster should* grew accus.9 ere stracter thee these televated by aplant seerber has sold de es eff4 deva Sethlel le the Constrwettee of the gives to the Geweressent Accounte648aty teatract with Caesumere. ese wether somed to false storms er lasccurate estim pleet "
eHeged.
Project.
signals, et eeund lead te laneslag a reeg This perwe = who bed sep level la eno6her effedeels teHected by GAP.
e gg,, moggers'enre est up 3254.See r
probleen should ese escur.T the electgl. Fespetubthey See weldsag - send other seether former worker said defecsive westta of goed cable med threw 88 seey cles wrote.
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welds ces be found throughewt the plant-busene the paperweek had gesses lost
- l**Pettets admitted se baan they had
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. because welders were leesperienced ' and techsel feared es aespecser peeld epproved bed welds Ier yens a before the
- peneebesse shuffte." end se6d he seceTilE SAhtF. PCR$0tt described the,eas
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and because peerly Assinee Quelssy Central (QC) inspecsers approved 6ed, decewe QC 1.spectors, each as short*e llow werbers leerped techaltees to ipeat les days sneesertag things let tec hnigen.
welds for years.
reason and wed.pretsed Ier his bore poplag. whwh Snktel QC sospee.
A tMrd forn.et eucleet plant wes6er. entag belts when there weseT reses te ladesteleaseets.
88 sold ehepments of defechwe ducteerk lastell tham properly. ' '
t*r* *'aener tank the tune'* se seek gee, sh s a w6desprced dreg eed escohol ebese* was these say seed lee the sneesere.*ltdadn'tmenterwhettmessured.ser M were 'instened despite ablectione be les tjeep.ag on the. Job med se maderground ee'88383y eerF demgerees to the sec.
, cause management was le a borty se",.eperetsee la whkh workers ssefsed bell snents. het's na esesspie of the tenslestoperellesof thepleet."
$asish bmidsag theplante
- penethme skulfle'** b elecirectes b
buckle Asked se cesament ee these ned eder pg ng,s from eteenless sjets and dichel send be did E beteuge thet,ee se wegg Tile ENGINEElt feelted techsel for S
e8
,,,, gels eHegessess which wsM be fornially made pobhe Tuesday. Ceasemers Power Co.
,ng,,e g,p-. and effered them {st sedeenthese deyt birog inesperienced welders and de.
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The pensee sand Sechtel hop "as spectees and met teesseeg them property.
ap plant spokesmes Normee Seart seed me.
DeLty News were yrdsee by persons wh6TWO Olr Tite off,derI[a read by the
- en ett heidlead plant west 34 8888**d 887"re*8 *I 488 da stusty cannet respeed matet GAP t
l puotedes deseets se 84e charges. ** Aft we ec,4 star petstag fast wesh is with slow ears, t
at haew is what they are cheeneNag to the stalmed they were fired for beled Joe one 16me er enemer, end se d M
gemard6sg competence udb lacrees. ' *E"M*I8 4*ddI"e*ce 8e quel 88F wHI snedle. Our commualcesses with GArl correct geelity dgfects eleshe plant.aggresslee le reportlag eed trylag sgI lagly heester and m4 e inflacott werk cost the ratepe ese e bundle of they are P"
bas met been successful. and It's set, Managesneet was nellatereegedla sech
- compeseet
<*e*
3ee and placlag a weaker where he le least pubhc'."e"** 8 88 /e sa near costs to me because we beves*8 tried." Seeri said lar thas enersing.
seal, they changed, d spNe posters 'ag, TH electricles wrote. *These is the Whcm the eastaeer wu seeminesed ede f
lie sold the plant a prime contreetee*
- the sitecielming otherwise. - -
pechsel Power Corp the feces of misay De thisd quit for the es.de reessa?"Ite
- templeteen to dismiss such incidents s elG AP's charges, elee wlM aet comment left Mt41 sad because at was 4.he e ase. I Ilust as etestight, a smisteht er somehe,e, earHer his y 8*
i e bot dettbesote. pet sech laclJeste are a s. had been memble le
- adjust to the wcr Nd Ibiass prse done et Midtead "
, 4d38 and is deferring, sil resposee te couldnet tive wkh sayself teemingthett { pay el ble at the plant and far teen. he engineer said se his effidevet.
Censmanees. ;
e of worsne[i niing de falneg thes "Ducket Ecosamen to be ' diambased:
wee partic
- If used ep-she by i ucestems, t had been told le advaneg
- esseneer.1ba. e defacsent weld whee ion a a seret t
.{as CAP INTF.NDS le present the tror kers.** ees former wethe( sold de se o hat my entgemaet weeld be Iere est tre one, and I knew how seeny of deve t
.t werhess* allegations to the Nuc8ese attde est.
r.twhea t was done." -.-
388*
,g: s'. welds and other probicans went mad,.
neel Midland project mis serieg said shea go,,,r.,g,ct.gesess ehe ;,ft the j gee seld ggews semetimes seuldbspag. tected er tseered by the mee respessibse A esslesory Commisesen fuesday. end te press the NRC se sabe actlen CAP to e 9 ' *de g week at. tress see goetsament.
Washtagten table shop reuflaflF embsdaused reptrol *sgeble spsendte
- reen,prposes. le si lor laspecises these. Bechselhos shown, 8 =.
8*
type.weg jaetd.f%e tese out what the day shift by les shatade that at ca net be trussed se
,the electsactee tables when the correct l
D C.-based group essablished to protect e
e Pesteren week of the high qwaWp 8,%
workers who espees wesse freed and one,allable, eed espressed fear the ;tatstsited and they tore out what wd substuuted fobie wH4 per slee fatpre installed. After e mean el Gis I onhed.. Sie sold a fallineeslageseee of pechset eecessaryin a muleer plent?'
18 ' 8 corrupties-the ~ Deey News stod and took plant epeseters terrect anfer metise.
mb' table dealga sney hete teNed Ier 2rrgFor esemple, the etersriclee said p pasedestershstet.*ide encerpts frees ghtee of seven offidatlla kne 4 h sedene betere MWiend see se CAP pleas se give to de NRC ofter a s
e
.. I. ' Inte opmues. The me of this waN be shree mench lavestigettaa. GAP le not ehlended poiss of 18 geoge were, but 8h W40fitER. FORMER workest teeeensg the identity el me termer and cable shep le which he werhed womad see loweteer eastneet whh li years esperg.
- rmeme..f et een h done et su.
y a
. e Desp se the cost. I connet stead by and ela streaded 18 avge wire with pe f
gg m
terrent plant werheen it tethed to. and eue at als aucteet please pechseleg this persea seid CAP. *wheih e one* 'Conavaiers' l'aMeedes plent), cetted she wth ne plaat gm he le Na pnet eWeldsag steund the estire beadle.
a.Nac hu.gradie denkewise malue state elestesy.
s'
- ne latesmahoe leses to bearings by ' conductor eier fedwco e cursent le t
,biidte.d pt.e aihe wetst a.ciesr ! "To
- so *e=8d he ** k'rer er g
8
.Ceegressionetcommat4ees.
esenher toadector whhle the eMeld and facitdy t han eses seen."
- e inpens*MWles as a profnelemet, na se ess - h w a - -d*~ ~ ****"*
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Enitch &ates of Amerita o
NUCLEAR REGULATORY COM511SSION C
In the matter of:
CONSUMERS POWER COMPANY (Midland plant, Units 1 and 2)
>. DOCKIT NO.
50-329-OM 50-330-OM 50-329-OL TO 50-330-OL Thomas Devine Government Accountability Project
~
1901 Q Street, NW Washington, D.C.
20009 YOU ARE HEREBY COMMANDED to appear..".t,,,t,h,e,,,9,,(,(,i,c,e,,,9,f,,,,3,s,pam,f,,,,,.,,,,,,
Lin.9.9An...4...B,e,al,e,,,,j },2,9,,,,C,o,n,n e,c,ti,c,u,t,, A,y,e,,g,,,N,.,W.,f,,, S,u,i,t.e.,,,8,,4,0,,,,,,,,,,,,,,,
in th e ci ty o r....W.4.s.h i nsAp.n...Q on th e.....l.91h......da y o f..
gu,,},y,,,,,,,,,,,,,,,,,,,, i 9,,,,8,,2....at..............:.9.9... 0'clo ek P.M.
to XisE?: on behalf af......G.QERInmanA..A.q.7.QHDA@ility...P.K.0ient..............:.......
be deposed in the above entitled action and bring with you the document (s) or object (s) described in the attached schedule.
=
BY ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD BY
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. n,. a -.
ATTOR.NEY FOR CONSUMERS POWT'D COMPANY
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,}9_,,,,,,,,,,
Philio P.
Stectoe, Esq.
Teham. T.incoln & Beale TEl.EPHONE ( 312 ) 55 8-7500 l
10 C.F.R. 2.720 (f) p,ending officer or.,f ne,, unwasel,. tne On menon made prometly, and in any owns Commuson may flj quase or modsfy tRe sub-O st or beferr the nme toersfied en tne naapoene poene if it su unressonable or requeres endence for comotienet by the person to meom toe anb-not resewnt to ens metter en sstue. or (:l een=
porne is dirreted, and on nonce to the' parry at dution densst of t%e monon on just sad reasonable mote instante tne nobooene mes stated, sne terms.
RETURN ON SERVICE Re ceived this sub p oena a t..
.................................................o n
\\
...............................andon...........................at..............................................
serve d i t o n th e within named...........................................
by delivering a copy to h.. and tendering 'to h..... the fee for one day's s'ttendance and the mileage allowed b.v law.1 D a t ed................................. 19......
BY.....................................................:..
Service Fees l
Travel.........
u......... 5 Services.....................
S To ts 1......................... S Su dseribed and sw orn to b efore me, a..........................this..............................
da y o f.................................. 1 9.......
NOTE - Affidasit required only if service is made bf a person other than a United States Marshal or his deputy.
t i fees and nu:este need not be tenderett to one seiness a, pen semer of a subroens anned in beh*If of the
v-Enitch &:a2es f Amerita p
-. - -. ~
NUCLEAR REGULATORY COMMISSION v
In the matter of:
CONSUMERS POWER COMPANY (Midland Plant, Units 1 and 2)
>. DOCKET NO.
50-329-OM 50-330-OM 50-329-OL TO 50-330-OL Lewis Clark Government Accountability Project d
1901 Q Street, NW Washington, D.C.
20009 YO U ARE HERE3Y COMMANDED to appear.a,t,,,,t,h,e,,,9f,f,,ig,e,,,gg,,,J,,s,ha,m,,,,,,,,,,,,,
f L..i..n..c..o...l.n.....&... B..e..a..l..e..,...1.2. 2. 0....C..o..n..n..e c t..i.c ut A...ve., NW,.........................................840 Suite in the city o f...W..a.s..h..i..n..g.t..o..n.,....D.. C..
o n th e... 3.0.th...... day o f..
.J.u,1y,,,,,,,,,,,,,,,,,,, t 9,,,8,2......a t....... 9.199....... 0'cl o ck A.M.
to textdy on behalf of. 9.9..Y#I.n,msnt,,,3c,c,g,unt,a.lp,i1,i,t,y,,,Prgiec,t,,,,,,,,,,,,,,,,,,,;,,,,,,_,
be deposed in the above entitled action and bring with you the document (s) or object (s) described in the attached schedule.
BY ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD BY ATTOR.NEY FOR CONSUMERS-
,,,,,,,,,,,,,,,,,,,,,,,,,,,,_,,_,,,39,,,,,,,,,,,,
I POWER COMPANY philio P.
Stentoe. Esq.
Tcham. T.incoln & Beale TELEPHONE (312) 558-7500 10 C.F.R. 2.720 (f) preent ortteer er..I he ss un=leete. the on monen meet oremotly. and in any ownt -
cem,namen mer ris suase er meety sne sub-l st er before the ame treetfied so the aseperne geene af it 4 unresseneble er requnres endoner for tem 9teente by tne persen te m*em the sub.
not resessant te on.v *enetter m issue. 09 C) een=
Serne SS directed, and an noner te she perry at denen gennet of t%e unenen en gun and reesenette anate ennente the Juegeene mes sagued, car tereens I-
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- .i RETURN ON SERVICE Re ce iv e d t his s u b p o e na a t................................................................................o n
...................................andon........................'.at................................................
serve d i t o n th e wi th in na m e d.............................................................................
by delivering a copy to h... and tendering ~ o h..... the fee for one day's t
a'ttendance and the mileage allowed by law.'
D a t ed................................. 1 9......
BY......................................................
Senice Fees Tra vel...................... S Senices.....................
S To ts 1......................... S Subs eribed and sw o rn to befo re m e. a..........................thi5..............................
da y o f...................................... 1 9.......
NOTE - Affidavit required only if service is made bf a person other than a United States
. Marshal or his deputy.
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I fees and omkete ered not be senteret! to the setness a,ren senice of a Mroenn isnood in behalf of the
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IXnitch fMates nf Amerita NUCLEAR REGULATORY COMMISSION
-v 4
In the matter of:
CONSUMERS POWER COMPANY (Midland Plant, Units 1 and 2)
>. DOCKET NO.
50-329-OM 50-330-OM 50-329-OL TO Lucy Hallberg 50-330-OL 3819 Chestnut Hill Midland, Michigan 48640 YOU ARE HERE3Y COMMANDED to appear h.t,,,,th,p,,,Cp,n,s,u,m,p,gg,,,Eg,y,e,g,,,,,,,,.,,,,,,
.C..o.. m. R.a..n.. Y....M..i..d..l..a..n...d....S..e..r..v..i..c...e....C..e..n...t..e..r....
m th e ci ty o f...M..i d...l..a..n..d...,....M..i..c..h..i c..a..n.....
r on the......U#.t..... day of..........JM.h'.........19..#.2.... at............ A.i.9.9... 0'clo ek P.M.
to axtIfy o n behalf of..G..o..ve..rn..m..e..n..t Acc.oun.t..ab..i..l. i..t..y P...r..o..j e..c..t....................
be deposed in the above entitled action and bring with you the doeurnent(s) or object (s) described in the attached schedule.
BY ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD BY ATTORNEY r0R _. CONSUMERS POWPR COMPANY
__,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,39,,,,,,,,,,,,,,
Phi 1in P_
Stortca. E n o_.
Tcham. Tine.nin r.
Anm1p TE!.EPHONE (312) 558-7500 10 C.F.R. 2.120 (t) preadinr offeer or. sf he ss unnulease. the On monon meer promptly and on any ownt Commuson may ll} quasn or moefy tne sub-21 av befort the nme spectfied an the ashootne peone af it se unreasonable or arqueret endence for comolannet by the person to nsom the sub.
not resewnr to enr matter en anve. or C1 can porne is directed. end on noner to the perry er dunen denset of %e monen on just end reasonecte maese entrance the astroene ws sssued, gne serms.
9.
RETURN ON SERVICE Re ca ived t his s u b p o e na a t................................................................................on
.....................................andon..........................'.at................................................
serve d i t o n th e wi thin nam ed...........................................................................
by delivering a copy to h...'.. and tendering to h..... the fee for one day's n'ttendance and the milesSe allowed b.v law.'
D a r ed................................. 19......
BY......................................................
Service Fees Tra vel........................ S Senices.....................
S To ta 1......................... S Su bs eribe d and sw orn to before m e. a
..........................th1s..............................
da y o f...................................... 1 9.......
NOTE - Affidasit required only if senice is rnade bf a person other than a United States Marshal or his deputy.
1 feet and nuksre nest
- sat be tenderett to the utnese egen semet of a subroenn istued in benstf of the
.$+Xnb,,, h b b1 S hI Mtn r 4
A NUCLEAR REGULATORY C0515 FISSION i
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i In the matter of:
CONSUMERS POWER COMPANY (Midland Plant, Units 1 and 2)
). DOCKET NO.
50-329-OM 50-330-OM 50-329-OL TO Billie P.
Garde 50-330-OL Government Accountability Project 1901 Q Street, NW d
Washington, D.C.
20009 YOU ARE HERE3Y COM31ANDED to appear....At...the..o.f.fic.e..of...Isha,m.c. Lincoln a...n..d....B...e..a..l..e...r...1 1. 2 0....C..o...n..n..e..c..t..i..c..u..t....A..v...e...,
N..W...,....S..u..i...t..e... 8.. 4.
0..................................
in the city o f..W...a s..h..i.n. c.t..o..n..c...D.. C...
on the...lS.th....... day of........Q.Rlv
- 19. 8.2......s t.....9.i.0.0....... 0' clock A St.
to MHN 3n behalf of.G.9.v.e.Inmp.n.t...A.cc.9.un,t a.b,,i,,1,i,gy,,,P,r,gie,c,(,,,,,,,,,,,,,,,,,;,,,,,,,
be depos'eu in the above entitled action and bring with you the document (s) or object (s) described in the attached schedule.
BY ORDER OF THE ATOMIC SAFETY AND LICENSING BOARD BY-ATTORNEY FOR CONSUMERS POWER COFANY
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,39,,,,,,,,,,,,,,
Philio p.
Stectoe, Esq.
T eh;
...i n col n & Beale (312) 558-7500 Te.t.EPHONE 10 C.F.R. 2.120 (t) passasnr offeer or. si se is un,<ilante. une On monon mece promptly, and an any ownt Communon may 11) sustn or mocafy sne sub-et or befoM the nme spee:fied en tne sneaporne poene af it it unressonable or aqueret esutence for comelannte by the person to emom the sub.
not neewnt to any matter un itsve, or G) een-porne ss dirreted, and en noner to the party at denen denss! of t%e menon en gust sad nasonable mneese snetaner the subpoens wet isnoed. Ene termL
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RETURN ON SERVICE i
Re ce iv ed t his s u b p o e na a t..............................................................................o n
..................................andon..........................'.at...........................................
served i t o n th e wi thin named....................
by delivering a copy to h.'.. and tendering to h..... the fee for one day's attendance and the mileage a!! awed by law.1 D a t ed........................... 19....
BY................................................
Service Fees Travel................. S Services................. S To td......................... S Subs eribed and sw o rn to before me, a............................this..............................
dav. of......................................10........
NOTE - Affidavit required only if service is made by a person other than a United States Marshal or his deputy.
4
! fees and nukert nort not be erndevert to one metnest unen servser of s subroens ts.ned un tenalf of the
7 a,
SCHEDULE OF DOCUMENTS REQUESTED I.
Definitions 1.
" Communication" means and includes, but is not limited to, all discussions, conversations (personal, telephonic or by any other medium), inquiries, negotiations, meetings, understandings,. notes, drafts, agreements, letters,
~
telegrams, " telex", or other forms of oral or written inter- -
change.
2.
" Document" means the original, any copies when an original is unavailable and any non-identical copies (whether different from the original bec se of notes made on such copies or otherwise), regardless
. origin ~or location, of any handwritten, typewritten, printed, recorded, transcribed,-
punched, taped, photocopied, photostatic, " telexed", filmed, microfilmed or otherwise prepared matter, however produced or reproduced, including, but not limited to, all papers, letters, correspondence, telegrams, telexes, cables, memoranda or minutes of meetings or conversations (personal or tele-phonic), desk pads, calendars, diaries, telephone pads, travel and expense records, reports, summaries, surveys, analyses, ledgers, journals, and other formal or_ informal books of recorde or accounts, bulletins, instructions, agreements, legal documents, billing records, drafts, note-books, worksheets,_ time records, vouchers, and. writing of every description, including drawings, charts, photographs, films, recordings, computer tapes and. printouts and_other l
l
___________-.__m-
} *.
- i j data or compilations from which information can be obtained and translated, if necessary, by deponent into reasonable usable form.
II.
Documents Recuested 1.
All statements and affidavits supplied to the Nuclear Regulatory Commission by the Government Accountability Proj ect
(" GAP"), relating to work or conditions at Consumers Power Company 's Midland plant, with the affiant's name and any information which would disclose the affiant's identity deleted.
2.
All documents relating to GAP's investigation of the Midland project, including but not limited to all documents provided to GAP by affiants, all statements of present or former employees of Consumers Power Company at the Midland plant taken by GAP which were not supplied to the NRC and all drafts of statements given to GAP by present or former employees of Consumers Power Company at the Midland Plant.
3.
All communications between Barbara Stamiris or Mary Sinclair on one hand and GAP, representatives of GAP, Billie P. Garde, Lewis Clark, Lucy Hallberg or Thomas Devine on the other.
1 I
i e
s _.,e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Docket Nos. 50-329 OM
)
50-330 OM CONSUMERS POWER COMPANY
)
)
Docket Nos. 50-329 OL (Midland Plant, Units 1 and 2) )
50-330 OL
~
CERTIFICATE OF SERVICE I hereby certify that copies of CONSUMERS POWER COMPANY'S APPLICATION FOR DEPOSITION SUBPOENAS were hand delivered to Charles Bechhoeffer, Jerry Harbour, and William D. Patton were served on the other person's listed below by deposit in the United States Mail, First Class Postge Pre-Paid, this 8th day of July 1982.
b l CAs
/
/
/
Joseph Gallo l
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SERVICE LIST l
Frank J. Kelley, Esq.
Steve Gadler, Esq.
Attorney General of the 2120 Carter Avenue State of Michigan St. Paul, Minnesota 55108 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-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. Marsah11 RFD 10 Ms. Mary Sinclair Midland, Michigan 48640 5711 Summerset Street 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 l
t 1
CONFINDENTIAL CONFIDENTIAL
{
AFFIDAVIT My name is I am submitting this af fidavit freely and voluntarily, without any promise of reward and in spite of indirect and implied threats and warnings, not with malice. but out of a devotion to my country and community and a genuine concern over the threat posed by the Midland Nuclear Plant.
I was born and raised in Michigan.
I completed high school there in and attended the University of where I was graduated in with a B.A.
in I worked as a I was incentured as an apprentice with the IBEW local I completed this apprenticeship in am now a State Licensed Journeyman Electrician.
It was in this capacity that I was employed by Bechtel Power Corporation at the Midland Nuclear Plant.
I went to work there in and from the first. found it difficult to adjust to the working conditions and the pace.
I had always taken pride in my workmanship and was accustomed to working hard.
I had always worked for small contractors whose success depended on the men working quickly and ef ficiently.
It was hard getting used to waiting around for or tracking down somone to sign a requistion for tools or material; and then possibly waiting another 1
day or two for the item to be delivered if the request was for l
material stored elsewhere on site; or not getting the item at all if the request was for a tool the superintendent or crib foreman was holding for his friends.
But this was all a<part of Bechtel's
-l Exhibit B
CONFIDENTIAL Page 2 of 9 philosophy; and you can adjust, get ulcers or quit.
5 It really isn't hard to understand their philosophy.
The contract pays for time and material--the more material used and the longer it takes to install it the more money they make.
As long as they can convince the customer they are making progress and the delavs and overruns are not their fault, they can just ride the gravy train, as it were.
The same philosophy permeates all the way down'the ranks but with an added corollary: The less work done. the further behind you get.
The further behind, the more likely you are to get overtime.
It can be plainly seen that this positive financial reinforcement encourages the " Powerhouse Shuffle".
The "Powernouse Shuffle" is a name the workmen have applied to the pc.ce at which you are required to work.
A little like walking in places you must look busy without actually doing anything.
I recall one instance during which I worked two days without a job to do and was praised for my industriousness.
I spent the two days measuring things---walls. ceilings, floors, cabinets.
It* didn' t matter what I r
measured.
Evervone who saw me assumed I was working and that I knew what I was doing.
That's the " Powerhouse Shuffle".
They have an arsenal of ways to impose the pace on everyone.
I was frequently criticized by my peers for working too quick 1v.
With the prospective reward of overtime for dawdling---peer pressure as a tremendous force.
l:
1 Additionally, there is the "matertal-tool bottleneck".
Although i
material is routinely cast aside and thrown away if something is I
l i
changed or revamped: when first issued, strict controls are used to l
+
1
Page 3 of 9 CONFIDENTIAL account for each item.
These controls and procedures do much to slow the overall progress.
Some subtler methods of retarding the pace are also available.
i Generally one works with a partner.
By pairing a faster worker with a
)
slower worker, they can slow the faster one down.
I've never seen a case in which the slower man was sped up.
Another method is to reward competence with increasingly heavier and more difficult work.
With one foreman I worked for. I started running 1" conduit and each new assignment was larger conduit in a more difficult or more awkward location.
There is little incentive to work fast facing a harder job each time.
I was running 6" conduit when I was transferred.
The transfer is another method of controlling speed by finding the area in which a man is least competent.
On two occasions I was transferred for execessive competence.
The tactical use of 1
discouragement has also been successfully employed.
By assigning a
'l difficult Job which upon completion is torn out and thrown awav, a man is discouraged from doing his best.
This method works well by example.
In one instance I recall, several men spent months installing 3" and 4" conduit along the south corridor of the auxillary building -- elevation 634'.
When completed. it was a very good example of fine workmanship.
When they were told to tear it out. I have been told that the men quit.
But the work was so visible. the lesson was evident to all the men.
There is the temptation to dismiss such an incident as just an oversight,
- a. mistake. or somehow not deliberate.
But such incidents l
i
PAGE 4 of 9 CONFIDENTIAL i
1
(
are a way of life there and far too common to be dismissed.
Often times, I had been told in advance that my assignment would be torn out when I was done.
Once I was in a crew that worked 3 months installing i
wireway in the lower spreader room.
When we moved to a different area, another crew came into the spreader room and spent a month tearing it all out and throwing it away.
Meanwhile, we went to 646' elevation of the Auxillary building and for that month, we tore out what day shift installed and ran conduit"to valves which were not yet 1
in place.
The dayshift would tear out what we installed and would redo it their way.
After a month of this I asked for and received a i
transfer.
There are a few less specific issues that I have about the safety J
of the Midland Nuclear Plant.
As I recall, when we installed the switchgear in the battery rooms on 614' elevation. we were unable to obtain minimum anchor bolt imbedment because of reinforcement rod interference.
We followed a standard procedure to deceive quality control.
We added threads to an anchor bol', cut it off and dressed it up with a grinder and once installed it was practically l
indistinguishable from an untampared with bolt.
This was not a un2que j
situations it was part of the game.
Back then there was no code l
stamped on the end of the bolt but it would not be difficult to add a code letter to the procedure.
My point is that while the anchor bolts i
we installed with no code will be given an ultrasound test, bolts with i
I a code on them even if counterfeit will be accepted if they pass a l
l torque test.
Another pecblem I think perhaps has not been recogni:ed is the i
presence of debris in the small bore staanless steel lines.
Some of
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PAGE % of 9 CONFIDENTIAL I
these lines will carry contaminated coolant and waste products.
I cannot begin to count the times I have seen someone throw peanut shells, orange peels, banana peels or waxed paper into 2" and smaller pipes.
Supervision was always good for that.
Perhaps it was just another wav of demeaning the men.
These lines are by no means straight nor even limited to a 060 degree bend.
I find it difficult to believe that flushing these lines can blow the banana peels out the end.
After having worked in the control room of the Midland Plant. one can see the control room simulator at the Training Facility, the single greatest impression made is that the simulator is so vastly more spacious than the real thing.
I think this demonstrates Consumers Power's own conviction that the control room in the plant i s grossly undersired.
My concern is not for the operator and the restrictions placed on his movements and the accessibility to his instruments and controls.
My concern is more for the heat buildup and the fact that the control room itself is surrounded by heat generating I
electrical conductors in the upper and lower spreader rooms.
Couple this with the fact that in the cable cut shop we werem free to substitute a similar type of cable f or a type that was unabailable or our of stock. and I feel there is a very real possibility th*at the j
operator may have to deal with stray, random or erroneous signals telling him something is happening when it i sn't or that something is not happening when it is.
His reactions based on this f alse input i
could vary from serious to slight in consequence.
Should he grow l
l accustomed to these false alarms it'could lead to his ignoring a real problem should one occur.
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CONFIDENTIAL By way of example, suppose a cable was required with 3 twisted shielded pair of 16 guage wire.
At the cable cut shop, we may have substituted 6 conductor 16 guage with a shield.
Such substitutions are routinely made without consultation and without regard to the purpose, location or operation in which the cable is used.
Whether one conductor may induce a current in another conductor within the shield and whether this would be significant are unknown factors which should be investigated.
i It was in mv final assignment that I began to seriously consider the possibility that this power plant might actually fuel up and try to run.
My last assignment was to assist 0.C.
in their inspection of electrical conduits and supports.
In this position. I had to take seriously all shortcomings, mistakes and violations both accidental and deliberate.
It was no longer a i
i Joke, trying to see how much we could get away with--how much we could sneak by undetected.
All these flaws, deviations, errors had to be paid for now or with more severe consequences later.
I was assigned to work with the quality control inspection sub-contractor, Comstock Engineering, in My job duties included the marking and i dentification of 0-conduit supports.
The Q-conduit supports were all required to be inspected by quality control because they a11 involved conduit necessary in an emergency shutdown-of the plant.
My job duties.
in part. required the completion of a form showing the type of cencult support and the weight it was carrying.
I found that many conduit supports had been in place and were. supporting
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- O90 7 Of 9 CONFZDENTZAL i
many of the faulty conduit supports to my immediate foreman, but failed to get any kind of adequate response.
Bechtel has a quality improvement program which permits employees to go f rom immediate foreman to their general foreman and finally to the superintendent if the emplovee believes that there has not been adequate attention to the quality control complaint.
I did not get adequate support from either my foreman, general foreman or the superintendent.
My electrical superintendent, observed me speaking to one of the Comstock Engineering inspectors and pointing out some of the weight problems in the conduit supports.
The electrical superintendent instructed me to no longer fill in the weight portion of the forms which I was completing.
I was also instructed. through the general foreman, that I was not to point out potential violations in the conduit support system to the Comstock Engineering people, as it was their job to find the vi ol at i on s; and it was my job to fix and repair those conduit supports after the violation had been discovered.
My foreman. Bob Essex. told me that they would wai t and see if the violations were caught before taking any steps to make repairs.
I finally decided to write a letter to the NRC regarding the quality control mistales which I had been observing.
This letter was generated because of a story which I saw in the Midland Daily News in which a former Comstock Engineering employee had written to complain of the lax attitude of DC and the unqualified inspectors.
I welcomed this news because I knew how valid his complaint was.
Out of the 1: inspectors I worked with, only one coul d be considered even marginally competent or qualified.
A l
l
Page 8 of 9 CONFICENTIAL j
l f
few days after that story appeared, there was an article indicating that the NRC had dismissed the complaint of the Comstock employee because of lack of specific information.
In response to that article, I wrote the NRC a letter specifying two
?
l kinds of violations which I had observed.
First was the numerous j
violations of weight standards and the lack of inspection for compliance with weight specifications and second, the improper installation and use of the type 30 conduit supports which are j
i j
attached to the flanges of steel I-beams.
I wrote the letter to l
the NRC in February, 1992; and shortly thereafter I was i
instructed to go back and fill in the weight portions of the forms for each of the conduit supports.
There was also some l
action to correct some of the conduit supports which were not in
)
l compliance with specifications.
I have attached a copy of this list setting forth each conduit support and the problem which I observed to be not in compliance with specifications.
The two (2) that are crossed out on'the attached list were subsequently corrected.
However, to the best of my knowledge. the remainder have not been corrected.
I brought notice of each of these conduit support violations to both my f oreman and general.
foreman, although a copy of this list has not been given to anyone connected with the power plant or to the NRC.
I was terminated as an employee of the Bechtel Power-Corporation at the Midland Nuclear Power Plant on March 31, j
1982.
It is my belief that my termination was a direct result of my communi, cation to the NRC.
I wish to reserve the right to expand this affidavit at a i
I Pego 9 og 9 CONFIDENTIAL y
later date.
I have read the above nine (9) page affidavit and it i s true and accurate to the best of my knowledge and belief.
ORIGINAL OF THIS AFFIDAVIT NOTARIZED AND FILED WITH NUCLEAR REGULATORY COMMISSION ON June 29, 1982 e
4 e
L
o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges Charles Bechhoefer, Chairman Dr. Frederick P. Cowan Dr. Jerry Hart,our ASLBP Nos. 78-389-03 OL 80-429-02 SP
)
In the Matter of
)
. Docket Nos. 50-329 OL
)
50-330 OL CONSUMERS POWER COMPAliY
)
)
Docket Nos. 50-329 OM (Midland Plant, Units 1 and 2)
)
50-330 OM
)
August 31, 1983 2
PROTECTIVE ORDER It is ordered that the depositions and document requests encompassed by the Licensing Board's Memorandum and Order (Ruling on l
Motions to Quash Subpoenas) dated August 31, 1983, shall be subject to the following terms and conditions:
(1) At their respective depositions the GAP deponents who have been subpoenaed (Louis Clark, Thomas Devine, Billie Garde and Lucy Hallberg) (the " GAP Deponents") need not respond to any question which (a) seeks to learn the name of any individuals who have submitted l
affidavits to GAP pursuant to a promise of confidentiality.("the anonymous affiants"-) or (b) may reasonably _be expected _to result in the disclosure of the names of the anonymous affiants, or any of them
(" identifying information").
Exhibit C
.5
. (2)
The GAP Deponents may delete, or cause to be deleted, from the documents requested in the Schedule of Documents attached to their respective Subpoenas, the names of the anonymous affiants and other identifying information.
(3)
The Applicant, Staff and Deponents will attempt to resolve any differences they may have as to whether a particular question, if answered, or a portion of a document, if not deleted, would result in the disclosure of identifying information, and in the absence of such resolution the matter may be presented to the Board for resolution by motion, upon which the Board may enter such relief as it seems appropriate including, but not limited to, ordering the resumption of a deposition.
(4) All information elicited from the depositions and document requests shall be restricted to Applicant's counsel, NRC Staff and Intervenors, except that information necessary to obtaining a ruling on the propriety of any disclosure may be revealed to this Board.I (5)
In the event, through error or inadvertence, the name of an anonymous affiant, or identifying information, is disclosed during the course of a deposition of the GAP Deponents, upon request made on the record, by the GAP Deponent or counsel for the GAP Deponent, such name 1
Applicant's counsel may come back before this Board and request permission to disclose information to Applicant if the counsel determines that the Applicant has a need to know it.
See t
discussion at Tr. 19135-36.
l L
s
.. or ider.tifying information shall be deleted from the transcript, and counsel for Applicant, the NRC Staff and Intervenors shall not disclose such name or identifying information to any other person except to this Soard as may be necessary to obtain a ruling on the propriety of any disclosure.
In no event, in the absence of a subsequent order by this Board shall counsel for Applicant disclose such name or identifying information to Applicant or to any employee of Applicant.
(6)
This Order does not in any way determine whether the anonymous affiants have any right to non-disclosure of their identities, or any other question of fact or law in connection therewith, and is without prejudice to the rights of any party to this proceeding to obtain a ruling on such questions of fact and/or law from this Board.
This Order shall not in any way affect the burdens of proceeding or proof on such questions which would exist in the absence of this Order.
FOR THE ATOMIC SAFETY AND LICENSING BOARD AAn Aw GclAulae Charles Becnhoefer, Chairman ADMINISTRATIVE JUDGE Dated August 31, 1983.
4 I
8 i
L J