ML17138B221
| ML17138B221 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 03/20/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Warden W AFFILIATION NOT ASSIGNED |
| References | |
| NUDOCS 8004180136 | |
| Download: ML17138B221 (2) | |
Text
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t gaff UTII ~ac.59 NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 March 20, 1980 6'r.
William G.
Warden ZV 32 St. Anthony Street Lewisburg, PA 17837 DOCKETED g
2-Office of the Secretae 2
Docketing & SeNlC5 Branch
Dear Mr. Warden:
I I am writing in response to your letter of February 14 to Commissioner Gilinsky regarding'your concexn about the treatment of the public participant, Environmental Coalition on Nuclear
- Power, and its director, Dr. Judith Johnsrud, in the NRC Susque-hanna operating license proceeding.
Under NRC regulations, Dr. Gilinsky cannot respond directly to your letter because the letter addresses an issue that is now being contested before the Atomic Safety and Licensing Boaxd hearing the Susquehanna case.
Since the case will come before the Commission for a decision, NRC regulations provide that a Commissioner-cannot entertain the views of any person off-the-record on any issue pending in a proceeding..
Your letter fits that category of communications.
This prohibition, found in United States
- law, is intended to assure that adjudicators face and decide issues only on the record before them.
The process of public intervention flows fxom section 189 of the Atomic Energy Act of 1954, which provides that the Commission will hold hearings, under specified circumstances, in licensing proceedings, which are formal and on-the-record and closely resemble a civil proceeding in a court of law.
This provision has been further defined by the Commission's rules to include certain important aspects:
to intervene a person must demon-strate injury in fact and articulate at least one issue that is cognizable before a Licensing Board.
When a person has demon-strated both of these
- aspects, he or she then becomes a "party" to the licensing proceeding.
That, however, does not end the process by which a person's interests are defined.
No person, including the applicant and the staff, may participate without specifying the details of his or her case before the Licensing Board.
One method commonly used by parties to find out each others'ases is called "discovery";
many NRC rules on discovery are analogous to the rules used'n the federal courts.
Discovery aids a party to find out an opposing party's case and eliminates the element of surprise.
Discovery also aids the court or Board by winnowing out unsupportable or frivolous con-tentions without the need to resort to a Board hearing with its
her. William G. Warden IV March 20, 1980 associated administrative costs to the taxpayers,and the par-ticipants.
The scope of discovery permitted is extremely broad and reflects a philosophy that each person is entitled to the disclosure of all relevant information.
In NRC proceedings, where the ultimate determination sometimes turns on expert testi-mony or documents, it is useful for each party to learn as much about the opposing case as possible.
Finally, since parties may not be willing to comply with discovery requests, the Board-(like a court) may order compliance if, in its judgment, a party has been unresponsive.
On the other hand, since discovery may also be abused by parties who have been burdensome or oppressive in dis-covery requests, a Board may enter a protective order to limit.
discovery, as required by ideas of fundamental fairness.
It is against this background that the current Susquehanna pro-ceeding with Dr. Johnsrud must be viewed.
She was permitted to intervene in the proceeding, advancing a number of contentions.
Pursuant to the above-noted procedures, she was willing to set forth the details of the issues she disputes through the dis-covery process.
The center of the dispute that you outline is that she says that the other parties are burdensome while the other side says she must be compelled to answer.
This matter the Board will decide, based on the arguments before it.
Until the Board finally resolves the matter, it, would not be appro-priate for us to comment on the propriety of the actions going on before the Board.-
It is apparent from.your letter that you have not had access to the orders that the Licensing Board has entered with respect to discovery.
Copies are enclosed for your information.
- Finally, if ECNP is unsatisfied by the Board's disposition, eventually the matter may be brought to an NRC Appeal Board and before the Commission before it is finally resolved.
We hope that this discussion will aid your understanding of the process and appreciate your concerns in this regard.
Sincerely, I'
',James A. <) rsgerald Assistant General Counsel
Enclosures:
Licensing Board Orders