ML20081F899

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Motion to Compel & Application for Enforcement of Subpoenas Against Govt Accountability Project Deponents,L Clark, T Devine,Bp Garde & L Hallberg.Response from Deponents Must Be Filed Before 831110.Certificate of Svc Encl
ML20081F899
Person / Time
Site: Midland
Issue date: 11/02/1983
From: Proctor S
CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:
Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8311040030
Download: ML20081F899 (23)
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'f UNITED STATES OF AMERICA 00CKETE0

. NUCLEAR REGULATORY COMMISSION USNRC BEFORE THE ATOMIC SAFETY AND LICENSING BOARh3 h0V -3 Aji:59 In the Matter of: ) Docket Nos. 50-3E9[OE. P ~

) 50-330 OM CONSUMERS POWER COMPANY ) Docket Nos. 50-329 OL (Midland Plant, Units 1 & 2) ) 50-330 OL MOTION TO COMPEL AND APPLICATION FOR ENFORCEMENT OF SUBPOENAS AGAINST G.'LP DEPONENTS Consumers Power Company (" Consumers") , by and through its attorneys, moves pursuant to 40 C.F.R. SS2.720(g) and - 2. 74 0 (f) (1) , for an order compelling Thomas Devine, Lewis Clark, Billie F. Garde and Lucy Hallberg ("the GAP deponents") to. produce any and all documents as requested in the subpoenas for deposition, and an order authorizing the Commission to seek judicial enforcement of the subpoenas, including sanctions. Consumers further seeks an order from th'e presiding officer shortening the time in which any response from the GAP deponents must be made in order to resolve any issues before the November 10, 1983 scheduled deposition. As grounds therefor, Consumers states:

.l. Thomas Devine, Lewis Clark and Billie P.

Garde were served on May 10, 1983 with subpoenas requiring their appearance for depositions.

2. The subpoenas requested that the deponents

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$ produce certain documents and materials. ~A copy of the Schedule of Documents Requested is attached as Exhibit A.

3. The GAP deponents moved to quash the sub-poenas. The Board denied that motion on August 31, 1983 but

. entered a protective order pursuant to which the depositions were to proceed. After extending the filing date, the

= Licensing Board on October 6, 1983 denied the Motion for Reconsideration and Request for Stay filed by the GAP de-ponents. The GAP' deponents filed a Notice of Appeal with the Appeal Board on October 21, 1983. The GAP deponents also sought ~a stay from the Appeal Board, a request which was denied on October 26, 1983.

4. During the telephone conference of October 5, 1983, Mr. Karr, counsel for the GAP deponents represented that he would reply to Consumers' counsel " shortly" with dates when his clients would be available in order to es-tablish a schedule for the depositions.
5. On October 12, 1983, Consumers' counsel wrote to Mr. Karr, requesting a response. A copy of that letter is attached as Exhibit B.
6. Mr. Karr, by letter dated October 18, 1983 stated merely that Mr. Clark would not appear for his deposition on October 18, 1963. A copy of Mr. Karr's letter is attached as Exhibit C.
7. Having made repeated attempts to establish a
mutually convenient. schedule and having received no coop-eration from counsel for the GAP deponents, Consumers' counsel, on October.19, 1983, sent a Notice of Deposition setting,such a schedul'e. A copy is attached as Exhibit D.
8. On October 27, 1983, the GAP deponents failed

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to appear at the deposition scheduled to produce the re-

. quested documents, failed to produce the documents in lieu of appearing and failed to notify Consumers or its counsel that_the GAP deponents had no intention of appearing or

. complying with the Notice or the subpoenas. A copy of the transcript of the proceeding on October 27, 1983 is attached

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as Exhibit E.

9. On October 27, 1983, no stay of the Board's order denying the motion to quash had been entered and the subpoenas were, accordingly, fully effective. Consumers is entitled to recover its costs incurred in connection with that deposition and the preparation of this motion seeking enforcement.of the Board's subpoenas and orders.
10. Consumers'is, further, entitled to an order compelling the deponents to appear on the dates set forth in th'e Notice of Deposition, Exhibit D, on penalty of having sanctions imposed for, among other items, any costs incurred in preparing for and attending those depositions in the event.that the GAP deponents again chose to ignore the commands of this Board.

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WHEREFOR, Consumers moves that this Board enter an order compelling. deponents Lewis Clark, Thomas Devine,

-Billie P. Garde and Lucy Hallberg to appear at the times and

-on the dates set forth in the Notice of Deposition and requesting that the Commission' seek judicial enforcement of the subpoenas in the event that the deponents fail to appear as commanded. Consumers further seeks an order from the l presiding: officer shortening the time in which any response from the GAP deponents must be filed in order to resolve any issues before the November 10, 1983 scheduled deposition.

Respectfully submitted, -

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I' By_L,t.e.A..r.1 sf r4_

/ One of the Attorneys.For Consumers Power Company David M. Stahl, Esq. ,

Susan D. Proctor, Esq.

ISHAM, LINCOLN & BEALE ~

Three First National Plaza Suite 5200 Chicago, Illinois 60602

j. (312) .558-7500 DATED: November 2, 1983

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. 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 v

(whether different from the original because of notes made on such copies or otherwise), regardless of origin or location, of any handwritten, typewritten, printed, recorded, transcribed,

( , punched, taped, photocopied, photostatic, " telexed", filmed, microfilmed o_r 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-s phonic), desk pads, calendars, diaries, telephone pads, s

-travel and expense records, reports, summaries, surveys, a \s} '7t' [] i b I' analyses, ledgers, journals, and other formal or informal

' books of records or accounts, bulletins, instructions,

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Cl 1ISSION 3

BEFORE THE 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 & 2) l' 50-330 OL NOTICE OF DEPOSITION TO: All Parties and their Counsel of Reccrd PLEASE TAKE NOTICE that Consumers Power Company, pursuant to 10 C.F.R. $2.740a, and the subpoenas issued by the Atomic Safeth _and Licensing Board, will take the deposi-

- tions upon oral interrogatory of the following individuals commencing at 10 a.m. on the dates specified. All deposi-g tions.will take pla'ce at the offices of Isham, Lincoln &

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Beale, 1120 Connecticut Avenue, N.W., Suite 840, Washington, D.C. 20036, except Ms. Hallberg's which will take place at Consumers Power Company, Midland Service Center, Midland, MI. The depositions will be taken before*a person duly authorized to administer oaths and'will continue from day to

. day until completed.

Records * - October 27, 1983 Lewis Clark - November 10, 1983

. Lucy Hallberg - November 22, 1983 All documents and materials requested in the Schedule to'the subpoenas shall be produced. NO INTERROGAT!ON WILL OCCUR.

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-/ Thomas Devine - ~ December 1, 1983 Billie P. Garde -

December 15, 1983-

- CC::S WERS-POWER COMPA:;'t

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' Cne of les A::crneys Isham, Lincoln & Beale-Three First National Plaza Suite.4900 Chicago,. Illinois. 60602 (312) 558-7500-1 9

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a UNITED STATES OF AMERICA 3 NUCLEAR REGULATORY COMMISSICM BEFORE THE - ATCMIC SAFETY AND LICE::SI::G BOARD In the Matter of: ) Docket Nos. 50-329 OM

) 50-330 OM CCNSUMERS POWER COMPANY. ) Docket Nos. 50-329 OL (Midland Plant,. Units 1 & 2) ) 50-330 OL-CERTIFICATE OF SERVICE

-I , Susan D. Proctor, hereby certify that copies of my Notice of Deposition in the above-captioned proceeding have been served upon all persons shown in the attached service' list and to John W. Karr, Esc., Karr & Lyons, 625 Washington Building, 15th Street & New York Avenue, N.W.,

Washington, D.C. 20005, by deposit in the United States

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mail, first-class postage prepaid, this 19th day of October, 1983.

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,/' Susan D. Proctor Isham, Lincoln & Beale Three First National Plaza Suite 4900 ,

Chicago, Illinois 60602 (312) 558-7500

. ,', SERVICE LIST

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Frank J. Kelley, Esq. Steve Gadler Attorney General of the 2120 Carter Avenue State of Michigan St. Paul, Minnesota 55105 Carole Steinberg, Esq.

Assistant Attorney General Environmental Protection Div. Atomic Safety & Licensing 720 Law Building Appeal Board

-Lansing, Michigan 48913 U.S. Nuclear Regulatory Ccmm.

Washingten. DC 20555 Cherry & Flynn Suite 3700 Mr. Scott W. Stucky Three First National Pla:a Chief, Docketing & Services C.hica go , Illinois 60602 U.S. Nuclear Regulatory Ccrn.

Office.of the Secretary Washingten, DC 20555

, Mr. Wendell H. Marshall 4625 S. Saginaw Road Midland, Michigan 48640 Ms. Mary Sinclair 5711 Su==erset Street Midland, Michigan 48640 Charles Bechoefer, Esq.

Atomic Safety & Licensing Board Panel William D. Paton, Esq.

U.S. Nuclear Regulatory Comm. Counsel for the NRC Staff Washington, DC 20555 U.S. Nuclear Regulatory Cc =.

Washington, DC 20555 Dr. Frederick P. Cowan 6152 N. Verde Trail Atomic Safety & Licensir.g Apt. B-125 Board Panel Boca Raton, Florida 33433 U.S. Nuclear Regulatory Ccmm.

Washington, DC 20555 James E. Brunner, Esq.

Consumers Power Company Jerry Harbour

.212 West Michigan Avenue . Atomic Safety & Licensing Jackson, Michigan 49201 Board Panel U.S. Nuclear Regulatory Comm.

Washington, DC 20555 Mr. D. F. Judd Babcock & Wilcox P.O. Box 1260 Ms. Lynne Bernabei Lynchburg, Virginia 24505 Mr. Thomas Devine Mr. Louis Clark Government Accountability Barbara Stamiris Project of the Institute 5795 North River Road for Policy Studies

-Route 3 1901 0 Street, N.W.

Freeland, Michigan 48623 Washington, DC 20009

o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE 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 & 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 Motion To Compel And Application For Enforcement.Of Subpoenas Against GAP Deponents was served upon all persons shown in the attached service list by deposit in the United States mail, first-class. Three copies were Federal Expressed to Charles Bechhoefer, Atomic Safety & Licensing Board Panel, c/o Quality Inn, 1815 South Saginaw Road, Midland, Michigan, 48640. An original and two copies were Federal Expressed to Scott M. Stucky, Chief, Docketing & Services, U.S. Nuclear Regulatory Commission, Washington, DC, for filing, and a copy of the same was Federal Expressed to John W. Karr of Karr & Lyons, 625 Washington Building, 15th Street & New York-Avenue, N.W., Washington, DCi 20005, this 2nd day of November, 1983. jd -

'U ISHAM, LINCOLN & BEALE Three First National Plaza Suite 5200 Chicago, Illinois 60602 (312) 558-7500 DATED: November 2, 1983

SERVICE LIST Frank J. Kelley, Esq. Steve Gadler

, Attorney General of the 2120 Carter Avenue State of Michigan St. Paul, Minnesota 55108 Carole Steinberg, Esq.

Assistant Attorney General Environmental Protection Div. Atomic Safety & Licensing 720 Law Building Appeal Board Lansing, Michigan 48913 U.S. Nuclear Regulatory Comm.

Washington, DC 20555 Cherry & Flynn Suite 3700 Mr. Scott W. Stucky Three First National Plaza Chief, Docketing & Services Chicago, Illinois 60602 U.S. Nuclear Regulatory Comm.

Office of the Secretary Washington, DC 20555 Mr. Wendell H. Marshall 4625 S. Saginaw Road Midland, Michigan 48640 Ms. Mary Sinclair 5711 Summerset Street Midland, Michigan 48640 Charles Bechoefer, Esq.

Atomic Safety & Licensing Board Panel William D. Paton, Esq.

U.S. Nuclear Regulatory Comm. Counsel for the NRC Staff Washington, DC 20555 U.S. Nuclear Regulatory Comm.

Washington, DC 20555 ,

Dr. Frederick P. Cowan 6152 N. Verde Trail Atomic Safety & Licensing Apt. B-125 Board Panel Boca Raton, Florida 33433 U.S. Nuclear Regulatory Comm.

Washington, DC 20555 James E. Brunner, Esq.

Consumers Power Company Jerry Harbour 212 West Michigan Avenue Atomic Safety & Licensing Jackson, Michigan 49201 Board Panel U.S. Nuclear Regulatory Comm.

Washington, DC 20555 Mr. D. F. Judd Babcock &'Wilcox i P.O. Box 1260 Ms. Lynne Bernabei

! Lynchburg, Virginia 24505 Mr. Thomas Devine Mr. Louis Clark Government Accountability Barbara Stamiris Project of the Institute 5795 North River Road for Policy Studies Route 3 1901 Q Street, N.W.

Freeland, Michigan 48623 Washington, DC 20009

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