Text

Response to Intervenor Environ Coalition on Nuclear Power 791119 Request for Protective Order & Certification of Questions.All Requests Should Be Denied for Lack of Evidence of Bias.Certificate of Svc Encl
	ML17138A990
Person / Time
Site:	Susquehanna
Issue date:	12/05/1979
From:	Reis E; NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	; Atomic Safety and Licensing Board Panel
References
	NUDOCS 7912180173
	Download: ML17138A990 (10)
	v • d • e

12/05/79 UNITFD STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PENNSYL'VANIA POWER ALLEGHENY ELECTRIC (Susquehanna Steam Units 1 and 2)

AND LIGHT CO.

)

COOPERATIVE, INC.

Electric Station,

)

Docket Nos.

50-387 50-388 NRC STAFF'S ANSWER TO ECNP MOTIONS FOR PROTECTIVE ORDER AND CERTIFICATION On November 26, 1979, the Staff received a filing entitled "Intervenors'esponse to Licensing Board Memorandum and Order of October 30, 1979" that included six motions by the Environmental Coalition on Nuclear Power (ECNP).~

Two of the motions can be characterized as motions for a protective order, four of them can be characterized as motions for certification.

All should be denied for reasons discussed below.

In the first request (p. 11, item (a)),

ECNP again asks to be protected from undue discovery burdens.

No undue burden or other reason for such protection In the order, the Board relieved each Intervenor from responding to inter-rogatories but those directed to contentions it raised.

The Board further extended the time to reply to interrogatories dealing with environmental contentions to December 14,

1979, and the time to respond to interrogatories dealing with safety contentions until after the environmental hearings.

ECNP raised ten of the original eighteen contentions (contentions 1, 2, 3, 4, 5, 6, 7, 8, 9 and 18).

Only the five involving environmental matters must be answered at this time (contentions 1, 2, 3, 14, and 18).

The Board's order thus had the effect of reducing the number of contentions on which ECNP now has to respond to interrogatories by 72 percent, and reducing the total number of contentions on which ECNP must respond to by 44 percent.

is shown.

ECNP does not even acknowledge that its obligation to presently reply to discovery was reduced by almost three-fourths.

It is not satisfied, and repeats the same arguments as it did before about oppressive discovery

burdens, without giving one example of why the requests are outside of what is normally asked and required.

As we have shown, the discovery sought here is within the scope of what is usually required (witness, documents,

studies, premises to contentions).

No basis exists for a protective order.~

The second request (p. 11, item (b)), asks for an order prohibiting further discovery on ECNP. It is premised on an unsubstantiated claim "of a gross misuse of, the process of discovery to accomplish unjustified and illegal ends."

This was not established and is not the case.

The discovery souoht as we showed in prior pleadings, is well wtthin the parameters of that permitted.

The talk of unjustified and illegal ends.-as recognized in the pleading itself-is invented (Response, pp. 5-6).

No warrant exists in the rules of the Commission to limit discovery as asked.

Thus this request should also be denied.

In the remaining requests, ECNP asks that certain questions relative to discovery be certified to the Commission under 10 CFR 2.718(i).~

First, it is emphasized The Staff incorporates "NRC-Staff's Answer in Opposition to ECNP's Motion for a Protective Order..

.." and the "NRC Motion for an Order Compelling ECNP to Properly Respond to Staff's Interrogatories" herein.

Certification may not be had from the Licensing Boar'd to the Comission, and so we are treating ECNP's requests as a request for certification to the Appeal Board under 10 CFR 2.718(i ) and 2.785(b).

Cf. 10 CFR 2.785(d) and 21786(b)(9).

See Pacific Gas

& Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1

8 2, CLI-77-23, 6

NRC 455, 456 (1977);

Vermont Yankee Nuclear Power Cor

. (Vermont Yankee Nuclear Power Plan~t, ALAB-421, 6

NRC 26, 27 1977 that these interlocutory matters are not proper questions for appeal or certi-fication under the rules of the Commission.

10 CFR 2.730(f) provides:

Interlocutor a

eal s to the Commission.

No interlocutory appeal may be taken to the Commission from a ruling of the presiding officer.

When in the judgment of the presiding officer prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense, the presiding officer may refer. the ruling promptly to the Commission As the cases indicate, certification is not to be qranted unless the interlocutory h<<h I

d h

I d

d I

th I

I

~P Power

& Li ht Co.

(Susquehanna Steam Electric Station, Units 1

& 2), ALAB-563, 10 NRC (September 19, 1979); Public Service Co. of New Ham shire (Seabrook

Station, Units 1

& 2), ALAB-271, 1

NRC 478 (1975);

Vermont Yankee Nuclear Power

~Cor (Vermont Yankee Nuclear Power Station),

ALAB-56, 4 AEC 930 (1972).

As stated very recently in Pu et Sound Li ht

& Power Co. (Skagit Nuclear Power I

Project, Units 1

& 2), ALAB-572, 10 NRC (slip opinion pp. 2-3, November 20, 1979):

The standard which we apply to requests for discretionary interlocutory review of Licensing Board'rulings is a simple one.

As we said two and a half years

ago, Almost without exception in recent times, we have undertaken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner.

Public Service Co. of Indiana (Marble Hill Units 1 and 2),

ALAB-405, 5 NRC 1190, 1192 1977) (footnote omitted).

Further, it has been held that certification is particularly inappropriate for the interlocutory review of questions relating to discovery.

Long Island Li ht Co.

(Jamesport Nuclear Power Station, Units 1

5 2), ALAB-318, 3 NRC 186 (1976);

Toledo Edison Co.

(Davis-Besse Nuclear Power Station, Unit 1), ALAB-300, 2 NRC

752, 769 (1975).

In ECNP s third request (p. 11, item (c)), it asks interlocutory certification of the question of whether parties can propound "excessive demands for discovery."

As we have indicated, aside from the inappropriateness of the question for inter-locutory certification, there has been no showing of "excessive demands."

The original interrogatories were reasonable, and even those interroqatories have been very substantially reduced.

In ECNP's fourth request (p. 12, item (g), it asks interlocutory certification of the question of whether it can be foreclosed from presenting witnesses because of its failure to meet what it views as excessive and unjustified discovery.

Again under the tests in the cited cases','questions involving discovery are inappropriate for certification for interlocutory review.

guestions concerning the presentation of evidence and witnesses are also inappropriate for interlocutory review.

See Toledo Edison Co.

(Davis-Besse Nuclear Station, Unit 1), ALAB-314, 3 NRC 98 (1976);

Lon Island Liqhtin Co.

(Jamesport Nuclear Power Station, Units 1

5 2), ALAB-353, 4 NRC 381 (1976).

More-

over, as the Board could dismiss intervenors as parties, it seems plain that it had discretion to foreclose them 'from presenting evidence absent meeting the long

extended discovery schedule it set.

There is no novel question to certify.

See Offshore Power S stems (Manufacturing Licensing for Floating Nuclear Power Plants),

LBP-75-67, 2

NRC 813, 817 (1975); Public Service Gas 8 Electric Co.

(Atlantic Nuclear Generating Station),

LBP-75-62, 2

NRC 702, 705-706 (1975);

Northern States Power Co.

(Tyrone Energy Park ), LBP-77-37, 5

NRC 1298 (1977).

. Further, as we have many times emphasized, ECNP has not even attempted to show that the discovery requests to it were in any way improper.

Thus again there is no question to certify.

In its last two requests (pp. 12-'l3,'tems (e) 8 (f)), ECNP asks that questions be certified of whether the Licensing Board should be "disbanded for gross incompetence" and abuse of the discovery process, and whether the Licensing Board should be reconstituted to include an NRC Commissioner.

Again the request is premised on matters concerning alleged'ppressive discovery that are not borne out by the record.

This Licensing Board has dealt in detail with the Intervenors'bjections to interrogatories, and has substantially reduced them (Licensing Board Memorandum and Order of August 24, 1979, and October 30, 1979 (pp. 6-16)).

The idea that this Licensing Board has not attempted to conduct a fair hearing is both a calumny and ridiculous.~

As detailed, the interrogatories to ECNP have been substantially reduced for equitable reasons alone.

Alleged unfairness in a matter of rulings is a matter for appeal on the conclusion of the proceedings d

Bf 3

.A. Bid di 3..3533.355.~:~L" Ti d

~Li 33i 3.. ALAB-353.~.

3 3

5 5

Biff 33 5

Cf. Metro olitan Edison Co.

(Three Mile Island Nuclear Power Station, Unit No.

2

, ALAB-474, 7 NRC 746, 748 (1978). It is noted that it was Dr. Kempford who appears in both this and that proceeding..

Pursuant to 10 CFR 2.704(c) any allegations of bias must be based on affidavit, which is absent here.

As stated in Dair land Power Cooperative (La Crosse Boiling Water Reactor),

ALAB-497, 8 NRC 312, 313-314 (1978):

We long ago held that a "party leveling a charge

's serious as that'of bias against a licensinq board or its members has a manifest obligation to be most particular in establishing the foundation for the charge, as well as to adhere scrupulously to the affidavit requirement of Section 2.704(c)."

'Du'uesne Li ht Com an (Beaver Valley Power Station, Units an AEC 42, 43 (1974).

We added that:

This is so even if the motion is based wholly upon matters of public record (e.q., rulings of the Licensing Board or statements made by a Board member which are reflected in the official transcript).

In such circumstances, the affi-davit requirement still serves a salutary purpose:

given the solemnity of an attestation under oath, it reduces the likelihood of an irresponsible attack upon the probity or objectivity of the Board member or members in question.

It is doubtless for this reason-that Section 2.704(c) mandates that all disqualification motions be supported by affidavit.

This affidavit is not provided here, and thus there is no basis to credit ECNP's surmises of bias.

Further, even discounting the absence of affidavit, no basis is given for recusing or substituting any member of the Licensing Board.

The fact that a party is unsatisfied with rulinq does not show bias.

As Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-l), ALAB-224, 8 AEC

244, 246 (1974), states:

~

-. 7 To establish that a hearing was biased, something more must be shown than that the presiding officials decided matters incorrectly; to be wrong is not necessarily to be partisan.

Tennessee'Valle'"Authorit (Bellefonte Nuclear Plant, Units 1 and 2

, ALAB-164, RAI-73-12, 1134 (December 11, 1973).

Me think it is as true in administrative hearings as it is in court cases that "[rjulings and findings made by a judge in the course of a judicial oroceeding are not in themselves sufficient reasons to believe that the judge has a personal bias or prejudice for or against a

party."

United'States

v. Amick, 439 F.2d 351, 369 (7th Cir.

, certiorari densese 404 U.S..823 (19TI).

Accord, Ex ar'te'American'Steel Barrel Co.,

230 U.S. 35, 44 (1913 orqan v.

Jnite

tates,

.2d 686, 699 (9

h i

. 1~7, ~i i

39D U.S.

952 (1958):

Kna o v.'Kinsey, 232 F.2d 458, 466 (6th Cir.). certiorari

enied, 352 U.S.

892 (1956).

Because intervenors advance no justification for a finding of bias other than the series of Board rulings mentioned, their claim must fail.

ML17138A990

Text

Navigation menu

Search