ML20078G055

Application for Deposition Subpoena Duces Tecum to Jl Donnell.Certificate of Svc Encl

ML20078G055
Person / Time
Site:	Midland
Issue date:	10/03/1983
From:	Williams F CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8310110310
Download: ML20078G055 (9)

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UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION Ustmc BEFORE THE ATOMIC SAFETY AND LICENSNG @DM5D /U1 :17 CFFIC~ v n ~- -

In the Matter of ) Docket Noccg@Qb3fSeSM;

) SDM330-OM CONSUMERS POWER COMPANY ) 50-329-OL

) 50-330-OL (Midland Plant, Units 1 )

and 2)

CONSUMERS POWER COMPANY'S APPLICATION FOR DEPOS1 TION SUBPOENA DUCES TECUM Pursuant to 10 C.F.R. S 2.720 (a) and, 2.740a Consamers Power Company (" Consumers") hereby applies to the Licensing Board to issue the attached deposition subpoena duces tecum to Mr. John L. Donnell, commanding him to appear to give his testimony at the time and place indicated in the attached subpoena duces tecum. In support of this Application Consumers states:

o

1. In mid-June the NRC Staff released the original Report of Investigation issued by the office of Investigation ("OI") on June 2, 1983 regarding allegations that Consumers had, in the summer of 1982, violated the Board's April 30, 1982 order with respect to excavations beneath a deep Q duct bank and for a fire line relocation. On September 14, 1983 the Staff released a second Report of Investigation (" Supplemental Report"), issued by OI on September 12, 1983 which contained a substantial amount of new material beyond that presented in the original Report. In particular, the Supplemental Report contained statements by two NRC Inspectors that one John L.

Donnell, a former contract worker supplied to Consumers by 8310110310 831003 PDR ADOCK 05000329 - _

O PDR y },

Babcock & Wilcox, Inc., had told them in substance that he had given prior warning to Coneumers about Dr. Landsman's prohibition of these excavations in question.

2. In his own interview and written statement, Mr. Donnell denied any recall of such statements.

3. The investigators who interviewed Mr. Donnell indicated that Donnell was difficult to pin down. They further related some unusual circumstances connected with their interviews of Mr. Donnell.

4. By virtue of the nature of the statements which Dr.

Landsman and Mr. Ron Cook related Donnell made to them, one or more parties or the Board may wish to call Mr. Donnell as a witness in the next session of the OM Hearing, which commences on October 31, 1983. In the normal course of events any new written testimony would have to be filed by October 17, 1983.

5. In view of the fact that Mr. Donnell's role only very recently came to the attention of the parties and the Board, Consumers believes that it is proper and essential to have some discovery concerning the possible testimony of Mr. Donnell.

6. The only type of discovery reasonably available within 4

the time constraints noted above is a deposition.

7. This Licensing Board is authorized to issue subpoenas for the purpose of discovery depositions, and in fact service of a deposition subpoena issued by the Licensing Board is the only way to compel deposition testimony of a non-party witness.

Pacific Gas and Electric Co. (Stanislaus Nuclear Project,

Unit 1), ALAR-550, 9 NRC 683, 690-91 (1979). Applications for subpoena are normally to be granted ex parte, the proper remedy for opposing a subpoena being a motion to quash after issuance. Id.

8. Counsel for Consumers will cause the subpoena, if issued, to be served expeditiously upon Mr. Donnell. Appropriate witness fees and mileage fees will be tendered in accordance with 10 C.F.R. S 2.720 (d) and 28 U.S.C. S 1821 at the time of service.

WHEREFORE, for the reasons stated herein, Consumers respectfully requests that this Application for deposition subpoena duces tecum be granted and that the Board issue the attached deposition subpoena duces tecum to Mr. John L.

Donnell.

Respectfully submitted, 1

. / 4.As%9 Frederick C. Williams One of the Attorneys for Consumers Power Company ISHAM, LINCOLN & BEALE d

1120 Connecticut Avenue, NW Suite-840 Washington, DC 20036

, (202) 833-9730 Dated: October 3, 1983

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Charles Bechhoefer, Chairman Dr. Frederick Cowan Dr. Jerry Harbour In th'e Matter of ) Docket No. 50-329-OM

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

) 50-330-OL (Midland Plant, Units 1 )

and 2) )

ORDER ISSUING SUPOENA DUCES TECUM Upon consideration of Consumers Power Company's Application for Deposition Subpoena Duces Tecum, dated October 3, 1983, the motion is granted.

ORDERED:

That the attached subpoena is issued.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

~ Charles Bechhoefer ADMINISTRATIVE JUDGE Bethesda, Maryland Dated: , 1983 E

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

' ATOMIC SAFETY AND LICENSING BOARD BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter o'f ) Docket No. 50-329-OM

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

) 50-330-OL (Midland Plant, Units 1 )

and 2) )

SUBPOENA DUCES TECUM TO: Mr. John L. Donnell Science Applications, Inc.

2769 South Highland Drive Las Vegas, Nevada 89109 YOU ARE HEREBY COMMANDED to appear at the offices of Thorndall, Backus & Maupin, Ltd.

Suite 333 330 North Rancho Drive Las Vegas, Nevada 89106 at 10:00 a.m. on Saturday, October 15, 1983, and continuing thereafter from day-to-day until completion of testimony, for the purpose of giving deposition testimony regarding your participation in events related the above-captioned project.

You are further commanded to bring with you all documents within your possession, custody, on control as itemized in Schedule A attached hereto.

l Please be advised that on motion made promptly and l

l in any event before October 15, 1983 and on notice to the l party at whose instance this subpoena was issued, the Commission may (1) quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter l

in issue, or (2) condition denial of the motion on just and reasonable terms.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

~

Charles Bechhoefer ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this day of , 1983.

This subpoena was issued on the motion of Consumers Power Company, by its attorney Frederick C. Williams, Isham, Lincoln

& Beale, 1120 Connecticut Avenue, NW., Washington, D.C.

20036, telephone (202) 833-9730.

AFFIDAVIT OF SERVICE I , being over the age of 18 years and not being a party to the above-captioned matter, hereby state that I served the attached Subpoena Duces Tecum to Mr. John L.

Donnell on October , 1983 by delivering a copy of the Subpoena Duces Tecum to him in person and by tendering to him the statutory witness fee and mileage allowance.

1 Pursuant to 28 U.S.C. S 1746, I certify under penalty of perjury that the foregoing is true and correct.

4 SCHEDULE A As used in this schedule, the word " document" shall mean:

any correspondence, memorandum, handwritten notes, and any other type of written or printed paper, including photographs, either original or photocopy.

1. All documents relating to or describing your employment with Babcock & Wilcox, Inc., or any subdivision or subsidiary thereof, including documents pertaining to any contract assignment from Babcock & Wilcox, Inc., prior to your assignment to the Midland Project.

2. All documents relating to or describing your initial employment, work experiences, release by Consumers Power Company, and termination as a Babcock & Wilcox, Inc.,

employee at the Midland Project.

3. All documents relating to or describing your efforts to find other employment subsequent to your termination from Babcock & Wilcox, Inc.

4. All documents relating to, describing, or memorializing conversations at any time with employees or officers of Consumers Power Company, Bechtel Power Corporation or Babcock & Wilcox, Inc., whether permanent employees or contract workers, concerning conditions at the Midland Project construction site.

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UNITED 9TATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

) Docket Nos. 50-329-OM CONSUMERS POWER COMPANY ) 50-330-OM

) 50-329-OL (Midland Plant, Units 1 and 2 ) 50-330-OL 3

CERTIFICATE OF SERVICE I, Frederick C. Williams, one of the attorneys for Consumers Power Company, hereby certify that I served copies of Consumers Power Company's Application For Deposition Subpoena Duces Tecum, proposed Order Issuing Subpoena Duces Tecum, and Subpoena Duces Tecum upon all persons shown in the attached service list, either by hand delivery, Federal express, or deposit in the United States Mail, first class, postage prepaid, the 3rd day of October, 1983.

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!2%c Frederick C. Williams ISHAM, LINCOLN & BEALE 1120 Connecticut Avenue, NW Suite 840 Washington, DC 20036 l

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SERVICE LIST Frank J. Kelley, Esq. Atomic Safety & Licensing Attorney General of the Appeal Panel State of Michigan U.S. Nuclear Regulatory Comm.

Carole Steinberg, Esq. Washington, D.C. 20555 Assistant Attorney General Environmental Protection Div. Mr. C. R. Stephens 720 Law Building Chief, Docketing & Services Lansing, Michigan 48913 U.S. Nuclear Regulatory Comm.

Office of the Secretary Cherry & Flynn Washington, D.C. 20555 Suite 3700 3 First National Plaza Ms. Mary Sinclair Chicago, Illinois 60602 5711 Summerset Street Midland, Michigan 48640 Mr. Wendell H. Marshall 4625 S. Saginaw Road

• Donald F. Hassell Midland, Michigan 48640 *Nathene Wright, Esq.

Counsel for the NRC Staff

• Charles Bechhoefer, Esq. U.S. Nuclear Regulatory Comm.

Atomic Safety & Licensing Washington, D.C. 20555 Board Panel U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Atomic Safety & Licensing Board Panel

• • Dr. Frederick P. Cowan U.S. Nuclear Regulatory Comm.

6152 N. Verde Trail Washington, D.C. 20555 Apt. B-125 Boca Raton, Florida 33433 Barbara Stamiris 5795 North River Road Mr. D. F. Judd Route 3 Babcock & Wilcox Freeland, Michigan 48623 P. O. Box 1260 Lynchburg, Virginia 24505 *Dr. Jerry Harbour Atomic Safety & Licensing James E. Brunner, Esq. Board Panel Consumers Power Company U.S. Nuclear Regulatory Comm.

212 West Michigan 49201 Washington, D.C. 20555 Jackson, Michigan 49201 Steve Gadler *Lynne Bernabei 2120 Carter Avenue Government Accountability St. Paul, Minnesota 55108 Project At The Institute For Policy Studies 1901 Q Street, NW Washington, D.C. 20009

• Delivered by hand October 3, 1983

• • Sent Federal Express October 3, 1983

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