ML20126L522
| ML20126L522 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 05/20/1981 |
| From: | Stamiris B AFFILIATION NOT ASSIGNED |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8106040360 | |
| Download: ML20126L522 (10) | |
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U.S. NUCLEAR REO
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In the matter of T
C.P.Co. Midland Plant
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BEFORE THE ATOMIC SAFETY a4rGENsiNG MARD 5/20/81 INTERVENOR RESPONSE TO 5/8/81 ME10RANDUM & ORDER OF THE BOARD, AND APPLICANT'S 5/6/81 RESPONSE AND LOTIONS FOR PROTECTIVE ORDER l
On 5/6/81, Consumers responded to my 4/28/81 Summary of Recuests with a "responre" which offered their version of my intent and position, and of the background surrounding my discovery, and contained a motion for oratective order.
1 I continue to find it surprising that negative remarks or Impilcations of a personal nature, and complaints about unrelated burdens are propounded by the AppIlcant, rather than maintaining a discussion of the issues in dispute only.
Even Applicant's specific and relevant objections as set forth i
in the Appendices, represent arguments supporting their motion for a protective order to which I had no opoortunity to respond before the May 8th Order. But the greatest part of the first 21 pages of Applicant's May 6 pleading, represents an unf air statement of my intent and position by the Applicant.
Rather than respond to each allegation by the Applicant, I will comment only on those. relating directly to issues ruitd upon in the May 8th Memorandum & Order of the Boarc.
THIS DOCUMENT CONTAINSO f'
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8186 o 4 e 3 6 0 POOR QUALITY PAGES
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i RESPONSE TO MEMORANDUM & ORDER 1.
On p.3 of the Memorandum and Order, is the statement that the follow up questions to 2.ind 3'are " precluded by an agreement between the Applicant and Ms. Stamiris." Page 15 of Applicants May 6 document states, "The written terms of the agreement contain no mention of further follow up questions, and the clear intent of the agreement,.which itselft evo1ved out of follow ue
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questions,was to dispose of the matter canpletely. By asking additional cuertions.on these matters, Ms. Stamirls has violated this agre ement."
It is clear from there statements that the Applicant considers my further fo!!ow up questions a violation of his unspoken and unwritten intent. This is very different than a violation of an agreement m?de ind understood by both parties. I did not and would not violate our agreement.
--l-ma not here seeking any sort of action on these clarifying cuestions denied by the board, but raise the issue of the agreement only to defend my integrity in this matter.
II.
The slight delay in my 3/23/81 motion to compell answers to Sb-Se resulted because the C.P.
lawyers I attempted to contact to discuss a possible agreement, were out of town, as explained in my 2/11/81 Request for Extension of Time to ?!1e Motion to Compe!! Discovery From Applicant.
This is to clarify the discussion of such on p. 4 of the Memorandum & Order.
o these did not evolve fram follow up questions, but f rom /e xamples (1/26/81) which refined and narrowed the scope.of the 12 4/80 g.
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III.
Regarding my !/14/81 Follow Up Requests as discussed on p.4 of the Memorandum & Order, the following statements are made.
" These questions w tre filed on 4/27/61, approximately 23 days af ter service of the Applicants 4/30/81 response. The Appifcant considers them untirsely. We agret."
At the end of March and the beginning of April I was working full time on my Answer to Applicants Seismic Motion, and the summary Disposition deadline was fast approaching. Since I had not yet received Applicants response to my 1/14/81 Request, I feared that I would not be able to reply as promptly as I would like should Applicants answer arrive at this time. For this reason, I offered
" to submit any further and final discovery requests within 3 weeks of receiving their (Cons.umet's) response if related questions were necessary"In my let ter of 3/27/81. (1 met that commitment,alicwing that it made more sense to serve the document at the 4/27 Prehearing Conference than sail it on the 25th.)
Despite these efforts to be as prompt as possible, and despite the fact that the Applicants response came approximately 76 days after the submittal, my requests are considered untimely.
I do not here seek further action regarding these denied requests, except for /5, a recuest for file documents, which in part the Board (p.4 Memorandum & Order) interprets as a motion to compell.
(p.6 of this document) j
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IV.
On p.5 of the Memorandum & Order, is the statement " We presume Ms. Stamiris should already have received the communication to the ASLB regarding temporary dewatering". I believe that this communication was sent prior to my admission as an Intervenor, thus I did not and have not received such a document.
V.
There was no direct mention made in the Memorandum & Order of my 3/27/81 discovery request or its ensuing responses ( listed but not included at t h e t op o f p. 6 o f my 4/2~8 /81 S umma ry ).
As these questions were not titled or considered " follow up" renuests even by myself, and as I now understand permissable "second round" discovery, I am surc they are dendec.
The one exception might be the last recuest (/io) of that series,which arose directly f rom my-s tudy of the - Adminis tration Bu11 ding documents provided 3/2/81. It is: "10. The March 8,1978 I.O.M. from Afif1 to Castlebury (copies to 1320, 3410) notes a conflict or confusion regarding borings, please explain this exchange and provide the three re fe renced 1.0.M.s."
I respectfully seek a direct ruling on this cuestion at this time.
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4 pESPONSE TO APPLICN1TS CONCLUSIONS ON PAGE 21 OF MAY 6 SUEMIT~AL o Apolicant concludes that my discovery recuests are beyond the parameters of discovery as set by the Board at the January Prehearing Conference, although the arguments he :,rtsents (p.9-11) would have precluded his own 60 discovery cuestions submitted to me Feb. 9th, had they been so applied. Further my understanding of "second round" discovery permitted me was not limited to clarifying questions only as stated by the Applicant (p.9). My lack of access to a transcript placed me at a disadvantage in reviewing statements on this subject.
Secondly Applicant argues that my outstanding requests are
" unduly burdensome in light of the large amount of discovery already provided to Ms.,_St.am_irls". Although the quality of my discovery questions has been lacking at times, it has always been conducted in good f aith. The Applicant 8s practice of restating my position, objections, or intentions implies othe rwise.
Although I have not attempted to defend the negative impilcations propounded by the Applicant, I have felt compelled to correct erroneous statements. I have thus added such comments to past discovery pleadings, adding to the cuantity as well as to the
" confusing mixture" of discovery of which the Applicant complains.
o On p.1, my intention was to disregard the Applicants arguments beyond those related to the Memorandum & Order, as the Order has already been =ade, but I will now briefly respond to his conclusions.
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The retainder of what may be an unusually large quantit r of d iscove ry, and follow up cuestions is also due in part to the cuality of Applicants answers. Whatever the reason for the cuantity though
, that past burden is irrelevant if the discove ry was proper.
Thirdly, the Appilcant argues. that my requests are " untimely in that they would seriously interfere with C.P.s preparation for the Hearing". Knowing that his own responses have been less timely than my own, Applicant f ails to set forth any specifics, but raises another burden unrelated to the discovery issues in question, namely that of the Hearing itself.
On the basis of these arguments, Applicant sought denial of my outstanding discovery requests,which I merely consolidated all
!rsto a s ingle documeriL "(iishbut argumenLa or caplanationsu) on
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4 /28 /81 r.
RESPONSE TO APPt.1 CANT 'S MOTION FOR PR(7tECTIVE ORDER ON FtJrUPI DISCOVE In response to Applicants Motion for Protective Order with respect to future discovery, on which ruling has been deferred, I submit that the Appilcant be compelledato respond to my /5 document recuest of the 1/14/BI Follow Up series p.3 of the 4/E6/61 Summary, according to 10 CFR 2.740(e).
o excepting a few paragraphs on the Administration Building settlement issue in the letter accompanying the document.
T. BACMOROUND In my first discovery request ( I2/4/80), I sought documents" concer,ning " discussions of all options ever considered (whether formal or informa 2, tentative or complete) for correction of Administration Building settlement"(docu=ent reques t /5).
On 1/19/81, Consumers responded,
- There are no documents meeting the description contained in this recuest."
On 1/26/81, I accepted Consumers answer that no such documents existed and asked why. I also asked questions $b-o concerning the decision to remove.and rep 4 ace ithe faultyl fill under the Administration Building.
On 2/27/81 Applicant objected to question 5(b)'" on the ground that it is irrelevant to this case."
That same objection was repeated in response.to_. questions 5(c)- 5(e), !n response to the document request, Applicant answered,"While Applicant objects
't'o pFoduc'ing documents concerning the chosen option, all such documents fall within the scope of Item 5 (of the 1/14/81 Request ),
The documents are now producable at the Midland Service Center."
Most recently, discovery on the Administration Euilding is objected to "because it is untimely and not within the scope of further dicsovery authorized at the Jan. Prehearing Conference."
(3.14 May 6 Response) o documents w4re defined as reports, studies, notes, worksheets meeting reports, connunications s u= mar ies, correspondence, t e lecons, o r ot her m~
The documents produced on March 2,1981 thus conce rn both d oc ume nt recuests (12/4/80 and 1/14/81) on the Administration building.
II. Arguments Against Protective Order For the Following Discovery Just as I had accepted Applicant's first response that no documents meeting the 12/4/80 description existed, I also at first considered the documents produced as satisfactory for the following reasons.
On 3/10/81 1 attempted to contact Mr. Erunner and Mr. Farnell to discuss cuestions 5, E, and 3 of their 2/27/81(and 3/2/81 documents) reply to my 1/16/81 recuert. On 3/17/81, Mr. Brunner returned my call I asked Mr. Brunner.lf~there.were any more documents to come regarding the Administration Building. He replied that I had been giv$n Bechtels"whole file" on the Administration Building.
He also suggested that because I had it all I should be able to find answers to Sb-Se within those documents. I replied that I would re-study them with this intent before submitting a motion to cospe11 (this portion of the exchange is referenced in my 3/23/81 motion to compeII). I accepted Mr. Brunner 's statement about t he Administration Building documents.
It was not until much later (mid. April) that I realized that the stamped SB numbers could be ordered, representing file o the 3/10/91 ca11' attempt is referenced in my 3/11/81 Recuert for Extension of Time to File Motion to Compell I
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In so doing, I realized there were pages missing from nucters.
the middle of this series. Knowing that it would be difficult to base my document request on an oral statement, unrecorded to the best of my knowledge, I attempted to obtain an answer by (4/23 or 4/18 request 5 in 1/14/81 follow up series).
other means My request was not timely, for the aforementioned reasons, but the production of information which could be crucial to my contention 3c or 1, and is otherwise inaccessible, should outweigh sure that any considerations of timliness. Although I cannot be the document s J request are crucial, " When a party has relevant evidence within his control,which he f alls to produce,it may be inferred that such evidence is unfavorable to hl=."1/
All of my d!scovery on the Administration Building croblem bcen "renscnably 'cci'c~ulbted to ic;d to the di:00very Of adm!:sab le h::
. e v i d e nc e "_ ( 2. 7 40 b_,1 ) in relation to my contentions, as 1 attempted to develop the relationship between the Ad=inistration Building problem and the Ddesel Generator Building problem.
For these reasons and because of the incorrect state =ent made by Mr. Brunner on 3/17/81,1 request that the Applicant be compelled to supplement his original document response of 3/2/81 according to 10CFR 2.740(e).as set forth in the first paragraph of question 5(of 1/14/81 follow up) on p.3 of my 4/28/81 Summary.
1/ Public Service Co. of New Hampshire,et al. (Scabrook Station, Units 1 & Z) ALAB 471, 7 NRC477,496 (1978)
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A Realizing the difficulty of requesting "and any beyond 5213956 in this series on soils", I will ask instead if'there are any documents (including memos) related'or referring to 5819695-19701, a Rough Draft of Ad:ninistration Building report, or if there are any other boring logs or other types of soil reports within.50p..before SB 00545 or 50p. af ter SB 005537 Further I recuest that the Applicant be compelled to answer these new recuests, which constitute an attempt to refine the questions in the second portion of cuestion 5 of 4/28/81 p.3.
a) Does Consumer Power have documents beyond those of Eechtel which concern the Administration Building settlement problem as addressed in the 3/2/81 document production? If yes,.please provide.
b) Are there documents relating to plant area fill soils which stemmed f rom studies 6r 'iviriti' rslating t-the Ad=in!:tration in 1977-78 which building-settlement problem which took place have not been presented to the NRC in 55e,54freports or recuests?
If yes please provide.
Respectf u1Iy submitted, YbS..M. ' L $ 0. n:u. w Copies se.nt: A.S.L.E. members W. paton, NRC
- J. Brunner, CP Co.
Secretary, NRC 7
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