ML20080P913

Motion to Stay Depositions of L Clark,T Devine,Bp Garde & L Hallberg as Directed in ASLB 830831 Order.Depositions Should Be Stayed Pending Review of 830930 Motion for Reconsideration.Certificate of Svc Encl

ML20080P913
Person / Time
Site:	Midland
Issue date:	10/03/1983
From:	Karr J GOVERNMENT ACCOUNTABILITY PROJECT
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
78-389-03-OL, 78-389-3-OL, 80-429-02-SP, 80-429-2-SP, ISSUANCES-OL, ISSUANCES-OM, ISSUANCES-SP, NUDOCS 8310120101
Download: ML20080P913 (6)

Text

?. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

, 00CKETED e ATOMIC SAFETY AND LICENSING APPRAERC BOARD 13 ET 11 NI:15 0FFCE GF SECPtU F' 00CKETittG & SEnvlu.

ASLiPA#8s . 78-389-0 3 OL

) 80-429-02 SP In the Matter of )

) Docket Nos.60-329 OL CONSUMERS POWER COMPANY ) 50-330 OL

)

(Midland Plant, Units 1 and 2) ) Docket Nos. 50-329 OM

) 50-330 OM GOVERNMENT ACCOUNTABILITY PROJECT'S MOTION TO STAY DEPOSITIONS The Government Accountability Project deponents Louis Clark, Thomas Devine, Billie Pirner Garde and Lucy Hallberg, pursuant to 10 C.F.R. S 2.788 and through undersigned counsel, hereby move for a stay of the effectiveness of the Atomic Safety and Licensing Board (" Licensing Board") Order of August 31, 1983, denying depo-nents Motion to Quash pending a decision of the Licensing Board of deponents' Motion for Reconsideration filed on September 30, 1983.

I. BACKGROUND.

Applicant Consumers Power Company has noticed the depositions of four GAP staff members. GAP filed a Motion to Quash, arguing inter alia, that the First Amendment to the United States Constitu-l tion protected them against having to disclose information given to GAP in confidence by confidential sources.

After oral argument, the Licensing Board granted a Motion to Quash filed by intervenors but denied GAP's Motion to Quash in a Memorandum and Order of August 31, 1983.

Subsequently, on September 30, 1983, GAP filed a Motion for Reconsideration supported by two affidavits of GAP staff members 0310120101 931003 PDR ADOCK 05000329 0 PDR 03

<* \ which demonstrated actual harm to their witnesses through Con-sumers' breach of prior confidentiality pledges and evidence that  !

l the Licensing Board's Protective Order would be similarly breached.

Louis Clark is currently noticed to be deposed tomorrow, October 4, 1983.

The Licensing Doard, in an Order of September 26, 1983, denied GAP's request for a stay of their decision.

Movants now request a stay of the Licensing Board's Order pending the Board's decision on their motion for reconsideration.

II. MOVANTS HAVE SATISFIED THE STANDARD FOR GRANT OF STAY PENDING THE LICENSING BOARD'S DECISION ON THEIR MOTION FOR RECONSIDERATION.

Pursuant to 10 C.F.R. 2.788, an Appeal Board must consider the following in determining whether to grant a stay:

(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Wha *a the public interest lies.

In this case all four factors weigh to some degree in GAF s favor. First, GAP has made a strong showing in its motion for re-consideration that it will succeed in its motion for reconsideration.

Essentially the Licensing Board originally found that GAP had not demonstrated that its information-gathering functions or its con-fidential witnesses would be harmed if the depositions of GAP staff were. allowed subject to a protective order. In the two affidavits attached to GAP's motion for reconsideration, GAP demonstrates specific harm which has already occurred to its witnesses because

~~

F- ~

p

( of Consumers ' and Consumers' attorney's failure to maintain promises of confidentiality. In addition, GAP showed how Consumers' primary purpose, as shown in the depositions of GAP's public Zack witnesses, has been to inquire into GAP's operations and not to uncover the information disclosed to GAP by its witnesses.

Second, GAP movants wil.' be irreparably harmed if they are forced to submit to depositions which they believe call for privileged information or risk a citation for contempt. Also, if as GAP ntrongly believes, the confidentiality of their witnesses is breached, the organization's ability to collect information on safety problems at nuclear plants will be irreparably crippled.

Third, the information being sought in the GAP depositions is relevant to contentions which will not be litigated until 1985 or 1986. Currently the NRC is conducting investigations into GAP witnesses' allegations and certainly no hearings on these issues will be scheduled until after these investigations are over. Con-sumers will not be harmed by the grant of a short stay.

Finally, this is clearly a case of first impression for the Licensing Board and for the Nuclear Regulatory Commission as a whole.

It is to the benefit of all the parties, and indeed the adjudicatory process itself, that sensitive claims of privilege are settled on as complete a record as possible. Certainly it is to applicant's as well as GAP's benefit that if this issue is to be settled finally in the federal courts that the NRC have the opportunity to consider carefully all legal and factual urguments prior to fashioning its decision.

d

.g e Moreover, it cannot be denied that both the adjudicatory branch of the Commission and the NRC staff wish to ensure the confidentiality of GAP witnesses. And, it cannot be denied that up to this point GAP's ability to gather important and relevant infor-mation about potential safety problems at Midland, Zimmer, and other nuclear power plants under construction have aided the Commission in its primary duty to protect the public health and safety. GAP's request for a stay pending the Licensing Board's decision on its motion for reconsideration is reasonable in light of the serious harm which it believes will befall both it as an organization and its witnesses if the stay is denied.

III. CONCLUSION.

For the foregoing reasons, GAP respectfully requests a stay from this Appeal Board pending a determination by the Licensing Board of its Motion for Reconsideration.

Respectfully submitted,

% WJ &

JOHN W. KARR 625 Washington Building Washington, D.C. 20005 DATED: October 3, 1983

l

s

[. 000KETED USNRC UNITED. STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 13 E 11 #1 15 Before the Atomic Safety and Licensing 'AngreaWBaiard. Ab

• DOCht ING & SEHVid.

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

) 5G-330-OL CONSUMERS POWER COMPANY ) 50-329-OM

) 50-330-0M (Midland Plant, Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Motion For Stay were mailed, proper postage prepaid, this 3rd day of October , 1983, to:

• Charles Bechhoefer, Esq. Frank J. Felley Administrative Judge Attorney General State of Michigan Atmic Safety and Licensing Board Steward H. Freman U.S. Nuclear Regulatory cannission Assistant Attorney General Washington, D. C. 20555 Envircmmental Protection Division 525 W. Ottawa Street, 720 Law Building

• • Dr. Jerry Harbour Lansing, Michigan 48913 Administrative Judge Atmic Safety and Licensing Board Ms. Mary Sinclair U.S. Nuclear Regulatory Ocxunission 5711 Sumerset Street Washington, D. C. 20555 Midland, Michigan 48640 Dr. Frederick P. cm Ms. Barbara Stamiris Administrative Judge 5795 N. River 6152 N. Verde Trail, Apt. B-125 Freeland, Michigan 48623 Boca Raton, Florida 33433 Wendell H. Marshall, President James E. Brunner, Esq. Mapleton Intervenors Consumers Power Coupany RED 10 212 West Michigan Avenue Midland, Michigan 48640 Jackson, Michigan 49201

• Docketing and Service Section U.S. Nuclear Regulatory Ccanission Washington, D. C. 20555

O h

Myron M. Cherry, P.C. * *01ristine Cole, Chairman Peter Flynn, P.C. Atatic Safety and Licensing Cherry & Flynn Appeal Board Three First National Plaza U.S. Nuclear Regulatory (bnmission Suite 3700 W sington, D.C. 20555 Chicago, Illimia 60602

• Dr. John H. Buck

• Atcmtic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Ocamission Appeal Board Washington, D. C. 20555 U.S. Nuclear Regulatory Comnission Washington, D.C.. 20555

• Atomic Safety and Licensing Jppeal Panel *

• Dr. 'Ihc2nas S. Moors U.S. Nuclear Regulatory Camissicn Atomic Safety and-Ideensing Washington, D, C. 20555 Appeal Board U.S. Nuclear Regulatory Cminission Steve J. Gadler, P.C. Washington, D.C. 20555 2120 Carter Avenue St. Paul, PN 55108

• Frederick C. Williams, E:q.

Isham, Lincoln & Beale 1120 Connecticut Avenue, N.W.

Washington, D.C. 20036

• William D. Paton, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Ommissicn Washington, D. C. 20555 a

/

- k LOUIS CLARK 1

l

• Delivered through the NRC internal mails.

i ** Hand delivered.

l

[

1 1

• i l

l t