ML19341A830

Motion for Order Compelling G Fiorelli Deposition & Directing NRC to Pay Atty Fees & Costs Incurred by Util. Certificate of Svc Encl

ML19341A830
Person / Time
Site:	Midland
Issue date:	01/23/1981
From:	Farnell A CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8101280299
Download: ML19341A830 (6)

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UNITED STATES OF AMERICA "

(' "I2 NUCLEAR BEGULATORY COMMISSION $ W Before the Atomic Safety and Licensing Boar

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In the Matter of ) Docket Nos. 50-329-OL

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

) 50-330-OM (Midland Plant, Units 1 and 21 )

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MOTION TO COMPEL THE DEPOSITION OF GASTON FIORELLI Pursuant to 10 CFR S2.740 (f) Consumers Power Company (" Consumers Power") , by its attorneys, moves for an order compelling the deposition of Gaston Fiorelli and an order directing the Nuclear Regulatory Commission to pay to Consumers Power the reasonable attorneys' fees and costs incurred in presenting this motion and in deposing Mr. Fiorelli.

The grounds in support of this motion are:

1. On December 8, 1980.Mr. William Paton, agreed to produce Mr. Gastei

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Mr. Fiorelli's deposition, but that rather would produce only those witnesses as strictly required by NRC Regulations, i.e., those who would be witnesses at the hearing.

3. On December 29, 1980, in a conference call initiated by Mr. William Olmstead for the NRC Staff, Mr. Olmstead stated that in accordance with " informal agreed

. discovery" that he was seeking the Board to direct all 1

parties to adhere to, the Staff would follow the Board's admonition that, "Where it appears that the witnesses selected by the Staff do not have the requisite knowledge but that other named employees or consultants do, the Board urge (s) the Staff to honor requests by the applicant to depose such l

persons." (Board ASLB Memorandum Concerning Telephone

Conference Call, dated December 31, 1980 at page S.) The 1

subject of Mr. Fiorelli's deposition was raised during the

]

December 29, 1980 conference call and was mentioned in the Board's Memorandum of December 31, 1980. Consumers Power l filed a Request for Correction of Memorandum of December 31, 1980. In that memorandum Consumers Power indicated that the memorandum should be corrected to note that Applicant was i not at the time of the conference call requesting that the Board take any action with regard to Mr. Fiorelli and that the Staff was aware on December 19th that Mr. Fiorelli was knowledgeable in quality assurance areas that designated witnesses were not.

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4. Even after the December 29th conference call the NRC is refusing to produce Mr. Fiorelli for deposition.

5. Mr. Fiorelli has direct personal knowledge of material facts not known to Mr. Keppler or any other NRC witness designation by the Staff. Mr. Fiorelli is NRC Region 3 Branch Chief and reports directly,to Mr. Keppler, Director of NRC's Region 3, on the inspection program for reactors under construction (January 6, 1981, Keppler transcript at page 7). Mr. Keppler stated that we will have to inquire of Mr. Fiorelli with regard to review of non-conformance reports as Mr. Keppler had no knowledge of that subject but that Mr. Fiorelli did (January 6, 1981, Keppler transcript at pages 40-41). Mr. Keppler also noted that Mr. Fiorelli will be the person to inquire whether the current consumers' quality assurance changes would likely eliminate or ameliorate the type of problems that existed as indicated in the Investigation Report (January 6, 1981, Keppler transcript at page 101). Mr. Fiorelli also gathered all the information for the crucial SALP (Systematic Appraisal of Licensee's Performance) Appraisal and attended meeting concerning this appraisal, (November 18, 1980 Gallagher Transcript, at pages 235-237). Mr. Keppler was not at these meetings. Further, material information may be gotten from Mr. Fiorelli which would be useful in im-peaching Mr. Gallagher and Mr. Keppler both of whom are designated as NRC witnesses.

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6. The foregoing conduct by counsel for the NRC Staff demonstrates apparent defiance of the Board's direction in the-telephone conference call on December 29, 1980.

Moreover, in view of the brief time remaining to conclude discovery, the Staff's good faith in conducting discovery in this matter is questionable in light of the representations made by Mr. Olmstead for the Staff during the conference call.*

7. Thus, the Staff should be ordered to produce Mr. Fiorelli for his deposition at the Chicago offices of Consumers Power's counsel, should be ordered to pay Consumers Power the costs and fees incurred in bringing this motion, the attendance fees for the court reporter for Mr. Fiorelli, 1

and the other costs and fees that will be incurred in taking his deposition.

Respectfully submitted, h

Alan S. Farhell Attorney for Consumers Power Company ISHAM, LINCOLN & BEALE One First National Plaza Chicago, Illinois 60603 312/558-7500

• It should be noted that the instant Staff conduct with regard to Mr. Fiorelli appears to be part of a continuing course of conduct by the Staff, beginning with the refusal to complete the deposition of Mr. Kane, the bringing of a i Motion for Protective Order which is wholly without merit, I telephone conference and the refusal to produce Mr. Fiorelli for deposition.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSISN B0 fore the Atomic Safety and Licensing Board

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In the Matter of ) Docket Nos. 50-329-OL

)

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

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

)

CERTIFICATE OF SERVICE

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I, Alan S. Farnell, hereby certify that a copy of Consumers Power Company's Motion to Compell the Deposition of Gaston Fiorelli was served upon all persons shown in the attached service list by deposit in the United States mail, first class, this 23rd day of January, 1981.

S.

Alan S. Farnell I

a. -s

l SERVICE LIST Frank J. Kelley, Esq. Steve Galdier, Esq.

Attorney Genaral of the 2120 Carter Avenue State of Michfgan S t. Paul, Minnesota 55108 Stewart H. Freeman, Esq.

Assistant Attorney General Atomic Safety & Licensing Appeal Panel Gregory T. Taylor, Esq. U.S. Nuclear Regulatory Commission Assistant Attorney General Washington, D/C. 20555 Environmental Protection Div.

720 Law Building Mr. C. R. Stephens Lansing, Michigan 48913 Chief, Docketing & Service Section office of the Secretary Myron M. Cherry, Esq. U.S. Nuclear Regulatory Commission One IBM Plaza Washington, D.C. 20555 Suite 4501 Chicago, Illinois 60611 Ms. Mary sin. clair 5711 Summerset Street Mr. Wendell H. Marshall Midland, Michigan 48640 RFD 10 Midland, Michigan 48640 William D. Paton, Esq.

Counsel for the NRC Staff Charles Bechhoefer, Esq. U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Bd. Pnl. Washington, D.C. 20555 U.S. Nuclear Regulatory Com.

Washington, D.C. 20555 Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Dr. Frederick P. Cowan Washington, D.C. 20555 6152 N. Verde Trail Apt. B-125 Barbara Stamiris Boca Raton, Florida 33433 5795 North River Road Route 3 Mr. Gustave A. Linnenberger Freeland, richigan 48623

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Atcmic Safety & Licensing Bd.

U.S. Nuclear Regulatory Com. Sharon K. Warren Washington, D.C. 20555 C36 Hillcrest h.iland, Michigan 48640 ,

Carroll E. Mahaney l Babcock & Wilcox l P. O. Box 1260 Lynchburg, Virginia 24505 James E. Brunner, Esq.

Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201