ML19210B725
| ML19210B725 | |
| Person / Time | |
|---|---|
| Site: | Zion File:ZionSolutions icon.png |
| Issue date: | 04/25/1974 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| Shared Package | |
| ML19210B722 | List: |
| References | |
| FOIA-79-414 NUDOCS 7911120179 | |
| Download: ML19210B725 (9) | |
Text
the Ucensirw Board has retained jurisdiction over certain environmental UNITED STATES OF AMERICA
}
ALAB.196 (q r;uestions,4.
ms preferable that we defer our review of the partial initial
('
ATOMIC ENERGY COMMISSION sj decision unt!,
Board has issued an initial decision on the remaining issues in the case.2 Review deferred.
A AN ING A EAL MARD lt is so ORDERED.
Alan S. Rosenthat, Chairman FOR Tile ATOMIC SAFETY AND William C. Parler, Member LICENSING APPEAL BOARD Dr. Lawrence R. Quarles, Member in the Matter of Docket Nos. 50-295 Margaret E. DuFlo Secretary to the A reat Board COMMONWEALTH EDISON COMPANY 50~304 P
(Zion Station, Units 1 and 2)
Messrs. Michael 1. Miller and John W. Howe, Chicago, Ilhnois, for the appheant, Commonwealth Edison Company Mr. Robert J. Vollen, Chicago, Illinois, for the mterrenors, BPI, David Dinsmore Comey, Sierra Club,and Metropohtan Sanitary District of Greater Chicago Messrs. Joseph Gallo and Frederic S. '3 ray U.lessrs. A. Grey Staples, Jr. and Robert H. Culp on the brief), for the ALC Regulatory Staff MEMORANDUM April 25,1974 Ily our memorandum and order of March 19.1974 (ALAll-185 RAl 7d 3 240), ne reversed two orders of the Licensing Bond relating to a discovery request by the intervenors, anJ remanded the case to the lloard with directions to conduct further proceedmgs. Since prompt correctne action was regiured, a detailed statemetit of the reasons for flic reversal was deferred to flus further memora n du m.
'llad esceptions to the partul initial dcenion been filed, we anost likel) would hnc considered them at tins juncture. In this connection. p.irties who desire appellate resicw of a decision such as that here-involsed must Ide esceptions without awaiting tl c disposition by
[
the licensing bn.nd of the rcm.undct of the proceeding See Sc(tson 1(c) of Appendn A to Dd 10 C1 It Part 2, as an ended. Obviously, of courw. if the bcensing board should thereaf tcr modify findmgs or conclusions contained in the p.irtut mital decision lesceptions to such lhe two discovery orders were the 1.icensing floard's "ituimg on Motion to modifications may then be Ided.
U Quash Subpoena,', dated March 27,1973, and its subsequent oral demal of the LJ1 456 457 Il s
t311120177
. t u u mg r.
. tese su mgs o
\\estmghouse (not the mdmdual named in the subpoena)at the headquarters stemmed from the h! arch 2,1973 application of the intervenors for a subpoena of the company in httsburgh.
dirqcted to the stinghouse Electric Corporation, "by E. T. Murphy, Contain.
(
On March 15,1973, Westinghouse filed a motion to qrslhN subpoena ment Systems A
/st, or such other representative
. who has custody and (including a supporting affidavit). Alter receiving briefs from Westinghouse and knowledge of the documents and things { sought by the subpoena] and the intervenors, and a memorandum from the applicant,' the Ucensmg Board knowledge of the application thereof to Zion Station, Units I and 2". The on March 27,1973 granted the motion. It assigned five reasons for doing so:
subpoena sought the " attendance and testimony"in Chicago on March 16,1973
_1.The lloard was not convinced that the scope and subject matter of the of the specified Westinghouse representative, as well as the production at the requested hst of documents lwas] reasonably necessary for (intervenors'l same time and place of certain documents, the description of which is presentation of evidence on Contention I,when compared with all the materials transcribed in the margin hereof.' Accompanying the subpoena request was a already made available to Intervenors by both Staff and Apphcant" notice of deposition directed to the same Westinghouse representative. Westing.
- 2. The floard was not convinced that the information and documents could house is the vendor of the nuclear steam supply system for the Zion facility.
not have been requested and obtained "much earlier";it concluded that there In a statement purporting to estabhsh general relevance of the unformation was "an inadequate showing by Intervenors that the subject wide 4anging and documents sought, the intervenors specified that their Contention I subpoena,, was not applied for for purposes of delay" asserts rfnerally that the Applicant has not correctly calculated the 3.The Board was not convinced that the place named for the witness to containment pressure transient in the event of a postutated toss of coolant report for examination was " reasonable" accident and that the calculations should be redone properly.2
- 4. The time allotted for the witness to respond to the subpoena also did not Intervenors then cited the applicant's l'inal Safety Analysis Report as estab.
appear to the Board to be " reasonable" bshing that the caLutations had been done by Westinghouse, and represented
- 5. linally, and somewhat overlapping the fourth reason, the lloard noted
.that the " computer codes and related documents which Westmghouse..used that the Commission s rules provide 30 days for a party to respond or object tc in nuking those calculations, and test.unony with regard to them,, aie clea rly,,
request for production of documents,and it expressed the opinion that the " fact o
relevant to their contention.3 that Westinghouse is not even a party to this proceeding does not give them On March 6,1973, the floard issued the requested subpoena.4 It found that fewer rights when it comes to a determination of the reasonableness of time to the application included "a showing of general relevance to the matters in respond,,
contrmersy in tlu.s proceeding,,, The return of service indicates that on The Board,s order thereafter discussed the,'value. os os oced 10: u.e March 12,1973 the subpoena was personally served on the Assistant Secretary requested documents in evaluating or prosing the allegations of intervenors, Contention 1. It stated that it was not convinced of the ' relevance and
'(1) All computer program hst mps, compu ter program cards, and the program materiality of most of what is being requested", and it concluded that the "hst instructions for each computer code fmathematical model) used in rnaking the containment of documents lwas] unreasonable", it added that the intervenors did not come precure transient analyses set forth in the Zion Statum I' mal Safety Analy.is Report in close to meeting the requirement that items to be produced be specified "with Section 14.3 and the Amendment 24 Answer to Question 14.28, including, but not hmited reasonable particularity" to, the containment preuure transient code and any code used to model the energy released during the blowdown and reflood phases of the accident and the heat retrovat by the in denying on April 3,1973 the intervenors' motion for reconsideration of emergency sareguards systems. (2)I or the double-ended pump suttion break, all tables or the ruhng quashing We subpoena, the Board assigned no reason other than that m ass release trounds/sec.), the enthalpy of the man (Illll/lbd reicased from the core, and it h3d "not heard anything new in the arguments of counsel that would cause il the man and enthalpy released to the containment throughout the Idowdown arut reflood to reconsider its original decision" (Tr. 603). In oral argument below, the phases of the first 400 seconds of the accident. (3) All documents containing the numerical in terve nors for the most part had teiterated their previous assertiont In values amt equitions for all auumptoms used to specify the input parameters I,r the above codes and all documents containing the engmecting jushfications for these auernplions.
addition, howeve r, they had stressed the disparity between the llodr d's
/
'Intervenori Appht ahnn for louance of a Subpocnt dated %Ianh 2,1973, p. 2.
characteritation and treatment of their discovery request as an attempt to delay
'IF 1.
- ihe subpoena was moddied to intimte a statement that the person namel was to be U tendered "the fees for one day's attendame and the mile y e allowed by law", as well as a
- the regulatory stall I led no pa;* cts with the t nensing noard in innnettrin unih the reference to the provisions of the Comminion's Rules of Practice gmcrnmg reimbursement motion to quash. 't he staff ma le a brwf stalement to the I nensmg lloard at the oral a
u of subpoenacd witneurs. See 10 Cl R 4 2.720(c),Id).
argument on the monon for rc< onuderation,in tarre part to respond to restam questmns
'inuance of Subpoena on Apphration of Intersenos[sl, dated Starch 6e 1971, p. l.
whnh the Itoard had asked vir. 48488).
LN 458 459 Os s
s t
8. i ie seques o ie app ican an t ie stait a, wueren nen notwe ut epoution cite stus section, as nell as Sci.tionI (filed after intervenors had Gled their discovery request) to depose Mr.Comey, 2.740 and 2.740a.
one of the m{venors. (See Tr. 452,478). At one point, during a discourse with q
B.The Supreme Court long ago made it clear that the deppn-discovery intervenors' c. y.,el, one floard member strongly suggested that it would be portions of the Federal Rules "are to be accorded a brud and hberal
" preferable for the Intervenors to use their own calculational techniques instead treatment"; and that civil trials in the federal courts "no longer need be carried of fishing through Westinghouse's figures for mistakes"(Tr.480).That member on in the dark". Rather,"[m]utual knowledge of all the relevant facts gathered later alluded to the existence of the staff's calculational techniques (Tr. 495 96).
by both parties is essential to proper litigation. To that end, either party nuy in ALAB 185, supra, RAl 74-3 at 241, we held that none of the grounds compel the other to disgorge whatever facts he has in his possession".Ilicistrun advanced by the Licensing Board was " legally sufficient,in the circumstances of
- v. Taylor, 329 U.S. 495,501,507 (1947).
this proceedmg, to warrant or support the result which it reached"-i.e., the This philosophy was carried forward by the Court in subsequent rukngs.
quaslung of the subpoena.
T hus, in United States v. Troctcr a Camble Co., 356 U.S. 677(1958), the Court sta ted, citing Ilickman, g
[m]odern instruments of discovery serve a useful purpose.. They together with pretrial procedures make a trial less a game of blind man's buff and more a fair contest with the basic issues and facts disclosed to the fullest Before turning to our reauns for disapeement with the Licensing Board,it practicable extent. [ld. at 602).
is desirable to review bn fly the scope and thrust of the Commission's pre trial e
discovery rules.
I It added that "[o]nly strong public policies weigh against disclosure"(ibid).See A.The applicable Commission discovery rules' are strikingly parallel to the also Schlagenhauf v. flolder, 379 U.S.104,11415 (1964).
analogous provisions of the %deral Rules of Civil Procedure. Northern States licensing boards are afforded considerable discretion and latitude as to the Tower Co. (Monticello Nuck. Gelerating Plant, Unit I), ALAB-IO, WAsil.,
Northcin States Towcr Co. (Monticello Nuclear Generating Plant, Unit I ).
manner in which they will apply the discovery rules. See,c.g.,10 CFR {2.718; 1218 43, 49 (August 20, 1970). See also, Statement of Considerations for restructured rules,37 F.R.15127-28 (July 28,1972).
ALAB 10, supra, WASil-1218 at 48 53, 63-65. Ilut despite this discretion and The Commission's rules, as do the Federal Rules, provide for several latitude, we think that the " broad, liberal interpretation" given to the Federal different modes of discovery. Section 2.720 permits parties to obtain subpoenas Rules' must similarly be accorded the Commission's decoverv rut s and is comparable to the authority appearing in Rule 45 of the Federal Rules.
We might add that we believe that the same general standards should apply Other forms of discovery (such as depositions and interrogatories) are authori7ed to the issuance of subpoenas for discovery purposes as are employed in by Sections 2.740,2.740a,2.740b,2.741 and 2.742 of the Commission's rules connection with other means of obtaining discovery. In the apphcation of the (comparable to Rules 26, 30, 31, 33, 34 and 36 of the Federal Rules)" The comparable provisions of the Federal Rules, the existence of such equivalent intervenors made their subpoena application under the authority of Section standards has been recogniicd. Boeing Airplanc Co. v. Cogreshall. 280 F. 2d 654, 658 (U.C. Cn. I960), Dart industries, Inc. v.1.iquid Nitrogen hoc. Corp.
of Cal., 50 F.R.D. 286,292 (D. Del.1970).
C lhe notice of opportunity for hearing in this proceeding (37 F.R.12982, June 3n, C. lhe foregoing does not mean, however, that there are no Imiits upon 1972) predated the effective date of the Commiuron's restructured rules of practice discovery. For the rules do not require.and the pubhc interest does not warrant.
( August 27, 1972), but the notice of heanng was not inued untd after that effet tive date an apphcation which would make alldocuments and information posseued by J (37 F.R. 2n995, October 5,197h. In its Memorandum and Order of September 29,1972, in rhn proceedmg, the Comminion indicated that. while petitions for intervention would person (whether or not a party) avadable to a discoverer. "[Djiwovery,hke all nnt be required to meet the mandates of the new rulet. the Hoard.md the p.irties wouhl he matters of procedure, has uhimate and necessary boundaries" Ilulman v.
ciivcted to make " maximum use of the amended procedmes" in the conduct of the 7' rlor, mpra. 329 U.S. at 507.
a pr o(ce sh np. Accordingly, we are reviewing the 1.is e nsing Hoard's disposition of the 1.1hc rule governing subpoenas (10 CFR @2.720), upon which miertenors intervenors dnc over) request on the tusis of its conforman(c to the new rules.
g
'Hequirements sciating to the production of Al C documents and recordt. and to the depont mnt of At C primnnel, are set forth separately, an't appear m Sections 2.744 and rettuu. lus standard is derned from the language of Section 6(c) of the 2 72nsh). respectisely. T hese prmidont mmlve different Icrat and puhey (onsterations Adtninist ra tn e Procedure Act, 5 U.S.C. 555(d). Whde the words ddier from those apphcable to nongmernmental parhes or permns which are here under
'/ Jp s. Fmley. 312 I'. 2d 5 3 3. 5 35 (8th Cir.196 3).
condder a t mn N
4GO 4G1 s
m the " relevance" standard appearing in Rule 45 of the Federal Unrestricted p_roduclien mLinaterial such as trade secrets, secret socesses.
somewhat fro,Q not appear to base accorded a different scope to the discovery devefopments, or research may, however, be newed as being "unreaso ble and Rules, courts oppressive". Ibid. Moreover, discovery wiuca is pursued stuctly foryurvoses of which they enchmpass. See, e.g., F.T.C. v. United States Tipe and Four~ fry Co.,
y 304 F. Supp.1254 (D.D.C.1969), where the court,in construing a dis overy delay or IIarrassment, is also " unreasonable" In this connection, subpoena or request subject to the " general relevance" standard, evaluated documem in discovery requests filed outside the time period prescribed by the Comm% ion's terms of whether they were " reasonably relevant to the proceeding". id. at rules (or such different time period as may be specified by the licensing board 1259. In any event, in according a broad and liberal treatment to the rules, for pretrial discovery) are to be regarded as prirru facie unreasonable.
3.The Commission's discovery rules include a number of specific require-courts have long construed the _ relevancy _ standard as allowing discovery in rejponfe~to 3 Mibruen, O mdestakerumler.nus"pah rh,t the evidence ments which apply to some or all of the methods available for discovery.These requirements include such matters as the specification of the time and place for sought can have no possible bearing upon the_laues" 1krcules Pomler Co. v.
,Rohm it flaas Co.,' 3 F.R.D. 302, 304 (D. Del.1943). lbcovery may be had discovery, and the manner in which the person or persons from whom discovery "not merely for the purpose of producing evidence to be used at the [ hearing],
is sought (as well as other parties) are to be notified. Failure to comply with any but also for discovery of evidence,indeed, for leads as to where evidence may be specific requirement may, in appropriate circumstances, be a valid ground for located", l'ngt v. Actna Life Ins. Co.,139 F. 2d 469 (2d Cir.1943).10 CFR' quashing a subpoena or denying a discovery request. But_ quashing.or_ denying 2.720 specifically precludes consideration of whether the material sought will discovergn_hypeltechnical grounds is not favored. There is a pgsinuption not be admissible in evidence. In short, the rules call for oIily~tIIat modification of the discovery request is ptTsMieTui also that it wdl be every relevant fact, however remote, to be brought out for the inspection adequate to obviate any prejudice to other parties.
not only of the opposing party but for the benefit of the [ board] which in
- 4. Finally, the Commission's discovery rules sanction a variety of cotrective actions which a licensing board may order if it finds that objections to discovery due course can eliminate those f acts which are not to be considered in have merit. The subpoena rule permits a board to " quash or modify" a determining the ultimate issues.
subpoena as well as to condition denial of a motion to quash or nmdify "on just flercules Powdcr Co. v. Rohm a llaas Co., supra 3 F.R.D.at 304;see also Dart and reasonable terms".10 CFR Q2.720(f). The general rule apphcable to other Industrics, Inc. v. Ergrud Nitrogen Proc. Corp. of Cal., supra; Diger.Kress co. v.
forms of discovery sets forth with specificity a broader panoply of corrective Amity Leather Traducts Co., 18 F.R.D. 347 (E.D. Wis.1955); Broadway &
actions which a board may order-all, however, falling within the broad scope Ninety-sixth St. Realty Co. v. Loew's Inc., 21 F.R.D. 347 (S.D. N.Y.1958).
of the remedies appbcable to subpoenas. (short,we read the wucctne acueas
- 2. Assuming that information andlocuments requested by subpoena satisfy appl cable to subpoena.s ;uulothenformssf discovery to be cgensisc.
the general relevance criterion, a person against whom discovery is directed vdMnming whether to quash a subpoena or to grant some other form cf relief, a board should impose "a particularly heavy burden"on a person seeki.ig may move to quash or modify the subpoena if it is " unreasonable",10 CFR 2.720(f)(1), or if it "reqmres evidence not relevant to any matter in issue" relief "to make a substantial showing in support of a motion to quash as -
(ibid., see discussion supra). Umeasonablenest can encompass a number of contrasted to some more hmited protection" Ihyj;on.L Titanium Corp. v.
widely disparate considerations, but the general discovery rules authorize a gg7f;,,p6>.3pra, 2io F. 2d at 425;sec also lmestment fropertics /nt 7 Ltd. v.
board at least to take action to protect a person "from annoyance, embarrass-105, Ltd., 459 F. 2d 705 (2d Cir.1972).This is particularly so where the matter ment, oppression, c: undue burden or expense" 10 CFR @2.740(c). But in to which discusesy_rclatesjs a significant safety question C/. I'trginia_Ucctric d exercising that authority, the Hoard must keep in mind the general purpose of pyg,~c;. (North Anna powE Station, Units I and 2). CLI.7416. RAI.74-4 the discovery rules to afford. party broad access to relevant information. For 313 (Apiil 12,1974). Absent such a substantial showing, a motion to quash exampic, it nught be thought "hurdensome" to give testimony and to furnish should be denied. //orizons Titanium, supra, at 426. See also lladnott v. Amos, 291 F Supp. 309 (M.D. Ala.1968), rcrcr5cd on other grounds. 394 U.S. 358 ylocuments relating to private or business matters "the more so if the mformation sought redounds to the advantage of a legal or commercial (1969)'
opponen t" Such burden is not " oppression" within the meaning of the rules.
g Ill See, e.g., llori:ons Tutanium Corp. v. Norton Co.,190 F. 2d 42l,426 (lst Cir.
u 1961).
U l
See ako pretal Foot t' rod htfx. Co. v. Reynot ts bretals ca., 5 S I'.u.I). 49 t,49 3,g.g,*
l Licensing Board,m support of its orders denying discovery. In defendmg the Licensing Board'< ruling, the apphcant concentrated on one of the reasons that va. l9m.
i CO 462 463
the lloard had assigned: the potential for delay (App. Bd. Tr. 81). For its part was s ught by interrenors "for purposes of delay'. Thus.the BoJrd erroneoudy the staff can4rlly conceded that "four of the five reasons really are oot a valid held that the intervenors were required to demonstrate affirnutiselQat they basis Ior quastung the subpoena" (App. Bd. Tr. I14) and it, too, attempted to
)
did not have an improper motive.
justify the Board's orders in terms of the potential for delay which the discovery 3.Mme iniportantly, under the restructured rules, discovery relatmg to a entailed. We shall therefore first treat the soundness of that reason.
particular contention does not commence untd that contention has not only A. in its March 27,1973 ruling, the Licensing floard stated that it was "not been identified but, as well, admitted to the proceedmg by the lloard See 10 cqnvinced" that the discovery could not have been sought "much eather"in the CFR 2.740(b)(1). This normally occurs at the "special" prehearing conference proceeding " based on the infornution in the i: Salt or voluminous other provided for in 10 CFIt 2.751 a.
- a. In this case, the "special" prehearing conference was held on M, vem-documentsaireadyarovided to Intervenors by both Apphcan ind AEC Staff" In that regard, the Board indicated that informadscovery and Freedom of her 17, 1972. Prior t her e to, intervenors had submitted two contentions Information Act requests by the intervenors had been in progress"over the past (3Al-CZ and 3.5.1-C7, in their petition for intervention) which alleged in eight months", and that " thousands of pages" of the applicant's documents and gener I terms that certain of the Commission's general design coteria relaimg to 8,000-10,000 pages of the staff's documents had already been made available to
(""tainment pressure w old not be satisfied. Despite the fact that the appbcant the intervenors. It went on to state that "intervenors have been parties to this.
had put in issue the acceptability of these contentions, the Board did not rule on proceeding since July, 1972" and, indeed, with the acquiescence of the theniat the conkrenct appher,t, had been given access to the applicant's documents "for several in&c4 tb Spe beheaong yewnce W W hk L I,L, months prior to that time".The Board thereupon concluded which recorded the events of the conf erence, explicitly recited that that there has been an inadequate showing ly Intervenors that the subject wide-ranging subpoena, with a return date two weeks from the scheduled start of the Hearing, nas not app //edfor for purposes or c/e/sy, r o was advised by the parties that progress was being made in narrowing the scope of the issues. (Emphasis supplied).
B. We cannot accept this analysis.
- 1. In the first place, one of the stated premises upon which the Board based c[-
by the Board that rulings on requests for discovery its conclusion is factually incorrect: the miervenors did not become parties in are dependent on the Bo.rrd first inaking determir.urions.v to '9 ism" "
s Jul), I972. Wh Ie dicir petition for mtervention was filed on July 31 1972 the n toe were not admitted as parties to the proceeding until the Commission issued its Memorandum and Order of Septemhe: 29,1972 (un published).' '
P**
" 9'
"" ' '" " P
- 2. Secondly, the Licensing Board's ruhng mistonceives the showing required lhe order aim indicated that the parties had agreed,and the Board had ruled, by the rules as - -ondition precedent to obtaining discovery h" subpoena. The that the evidentiary hearing was to conunence on April 2.1973.
Board's original issuance of the subpoena reDected its belief that intervenors had b.The next prehearing conference took place on February 1.1973,and the npde the threshold showing of " general relevance", and none of the parties n utters which were considered at that con ferent e were renected in the appears tidisapree. ihereaf ter, tlic burden slutted to Westmphouse to est%IEh prehearing Conference Order of I chruary 8,1973. That order thd not any grounds it might hate for the quashing or modification of the subpoena.
dehneate any specific contentmns which were acceptable;indeed.it admomthed Westinghouse argued that the discovery was untimely and could have been the pJrties [or not having reduced "the umuber or bulk of Intchen"rs~IdCd undertaken carlier,and that,by virtuc of the subpoena application being filed on contentions", and it added that it "soll awaits the joint supulatmo of the " eve of the hearing" il must he regarded as "an ill timed request to contentions that was so near at-hand as of the Mvember ! ',1972 SpcC8JI umeamrut ly burden a non-party to the p:oceedmg, on penalty of delaying the l'rchearing Conf erence" hearmg Ilut tiiis daim is a far cry from a demonstration that the subpoena v > o n r ' ""' C '""' '
sittus s ont t re nce was not omtemplated as temg the tma a
%1 arch 27,1973 Ituhng on Slotion to Quash Subreena, p. 4, emphasis supplied, a.&,rired l'y 10 Cl it i 2.7s 2.wlmh un&v nie ruics pent sonw kr o
' ' I hc 1 wensing Hoard may have derived its statement concerninr intervenors' g tubott pomt for thsmery. I hr ? CI"d'Y M "'nkrente o rN
.n J
adnsion to the proceeding as parties from a sinular st.irement.ohamed by Wesunghome gje,cm e w.,s to be held on nnth 2 t I ater out & u ( W.' '
o st.nih 12. I hr
~
in its motion to epush.
'h is-m(cgme us held on that date. See I mal Prehraung Gnferemt Nor &,* J $i bd
Hoef of Westmphome in Support of Stotion to Quash Subpocaa. etated Start h 26 I
g 9 7 3, 1973, at 57 58.
I 465 4G4 C
a 6
e
o assist t te parties in the course of their " remaining discovery", the order x
v in the April 2,1973 starting date for the hearing. Rather, they had.r, $ to the set forth w.jat the Board beheved to be the " key issues" of the proceeding one
- e of Jhich encompassed the containment pressure issues appearing in contentions April 2 date and if, because of discovery initiated by them, the,y Id sough, to
}
postpone the date, it would then have been their obhption to convince the 3.4.1-C7 and 3.5.1-CZ. Significantly, the lloard made it clear that, by spelung out such key issues, it Board that postponement was appropriate. ( App. B1 Tr.17.) We need add only was not accepting contentions as such but only c
the parties in narrowing the issues in contention. As that the Licensmg B5ard'had1mple authodty T5~lfMufnrtTreTourse of the attempting to assist modified by the Board's supplemental order of February 28, 1973, the hearing" and, thereby, "to take appropriate action to avoid delay"(see 10 CFil February 8 order required, iucr alia, that a list of all remaining contentions 2.718). If faced with a postponement request,it could and should hav: struck (whether agreed-upon or in dispute), be filed by blarch 7;and that hlarch 15 be a balance between whatever justification was advanced for the postponement.
the "[flinal day for initiation of discovery" and the reasons for avoiding d< lay.
- c. Intervenors' Contention I, which incorporated and made considerably C.Our ruling on the timeliness of the instant discovery request should not be occific the rather generalized allegations of their original contentions taken as denigrating the significance of requiring that parties' discovery requests m o..
3.4.l(Z and 3.5.1-CZ, was timely filed on klarch 2.1973. On klarch 7,1973, be filed in a manner consistent with the goal of carrying on and completmg the parties filed a stipulation with regard to contendons which indicated,inte'r licensing proceedings expeditiously.The restructured rules exphcitly reRect the alia, that Contention i "should be placed in issue" as a matter in controversy in Commission's intent that [hcensmg] preceedings be conducted espeditmudy the proceeding. In its Final Prehearing Conference Order, dated klarch and its concern that its procedures maintain sufficient ficuluhty to accommo-15,1973 the lloard accepted this conterition "as stated" date that object.ve". (10 CFR P,ut 2, Appendix A.) As stated m the rules, this
- d. This sequence of events effectively undercuts the claim of both the position recognizes that applicant and Westinghouse that the klarch 2 discovery request was untimely.
fairness to all the parties.. and the obligation of administrative agencies to The request was fded not only within the period for initiation of discovery conduct their functions with ef ficiency and economy, require that Commis-which was authorized by the Licensing floard but also (since it preceded th sion adjudications be conducted without unnecessary delays.
fmal prehearing conference) withuy the period for discovery sanctioned by th (ibid) But the key word isf7cxtbihty. For just as tactics which necessaril result f
restructured ru!es, indeed, there is at least some justification to intervenors' in delay for delay's sake are not to be tolerated, so too are ruhngs which assertion that their discovery request might have been rejected if filed earlier' Ireclude adequate access to information without a cleir and comincin; thn"ir"-
since there w uld have been no accepted contention to which the request would l
that unwarranted delay is unavoidab;c.
This dew is consistent with that adopted by many courts in the Furthermore, there was no warrant for any speculation by the licensing I
inter retation of the l ederal Itules. In making discovery suhngs. courts
{
Board that granting the discovery would mevitably have led to delay. As consistently have taken into account whether the requestelihm'rv wmuld m intervenors point out, they never sought, nor intimated they would seek,a delay g g g.g wg.,,,jfuy,nofsi,nu.nrim,,p.ieomid w e W 7
divoverv has been pernutted -even where it wv res""ed th " ' h ' O ' "' # '-
co'M hue h'en renucea carher. Frasier v. Twentiep.Centwysv Fahn
'
- Westinghouse asscated before the Licensing Daard that the subpoena was "uatimel "
in that it was " requested and issued y
O#P., 2 F.lt.D. l'14 (p. Neb. 1958)- Bernsfein v. N. I'. Nederla"d5(he-prior to the identificatnin of any matters in conference prmhled for in Section 2.75 t a of the Rules of Practise.the contiusion of the prehearmg Amerikaansche, Etc.,15 F.R.D. 32 (S D. NN.1953),7/umus v. I'cnnsy ianiy con tro<crsy in a prehearing order or otherwise at R.R., 7 F.it.D. 610 (li D NY.1947); Norto" v G"PCld"C" Inc., 27 l.
, thereby violating the requirements of Section 2.740(bH I),, whereby disemery shall only relate to matten in
'q" g g'9' 3'y' t ry39)~8 5 controversy which have been identified in the prehearing order entered at the conclusion of bd M(
4%
sw the preheanng confciente provided for in Set tion 2.751.i.
this assertion ignores the obvious negotiations in u hich the parfics were engared at the tune
{#Q' e-
- White techmeally accurate, p
when both the revised contention and the discovery sequest were simuitaneously filed
'5 Ihe avadability of a period in adonee of a i ari or g go, iy,n,.s in enf.ge en leadrng to a shpulation on thn contention only fne stays thereafter, orderly, Imal preparation. without a Thury Westinghouse also advanced an apparently heanng, has been recognired as w orthulnic. Amg t WM AoM (,
contra retory, and equally unwarranted, 135-36 (N.D. Ga.1970). tint that considerata,a cannot here justifv q position that the subpoena should be rejected sinc e it w as bled af ter the final Sc(tion 2.752
" nierscnars O
prehearing conferente and uas not accompanied by a showing of good tause. As reflecte t subpoena, inemus h as it was filed widn i the rerio I smitt t Hon presuniably took tlns factor into ac count). na i stef% p. 465, In.13, the subpoena request was filed in day s prior to the final prehearing con fer e nce.
request t.y the appl, cant and staff, rileit af ter intervenors dm mery reques.
l.N of the intervenors with regard to the entue scope of the intervenors < ase.
466 3
467 s
, The decisions cited to us by the applicant are not to the contrary. They mvolve the s[thrion in which the discosery was sought after the commencement pr position,it rehed on an afGdasit of a Westinghouse employee,who dpSribed die procedures employed by Westmghouse for classifying dmsnments as of a tnal and ielated to issues which the court found were apparent from the time the hhgation began. United States v. E.1. du l'ont de Nemours & Co I4 Propnetary.
F.R.D. 341 (N D. I!!.1953), Urrited States v. Iratchmakers of Switzerland The Licensing Board failed to deal with the proprietary status of the Informatiort Center Inc., 27 F.R.D. 513 (S.D. N.Y.1961). In each case Westmghouse documents. It neser indicated whethtr or not it considered the discovery had been sought by the government for the purpose of presentmg its d cuments to be antitled to proprietary protection. The Comnussion's rules rebuttal case. Ilut the court found that the discosery could and should have been include procedures for resolving questions of t!us type.10 CFR Q2.790(b).see also wnsin mas Amer Co. W nt ach Mear Mant, Und R undertaken at pre-trial stages, that delay of the trial would necessanly h5ve resulted from.a.grantoflhe.discmayandlhauheAdonshi@%=.g Al.Albi 37, R AI.73-7 491,50914 (July 17,1973). The lloard, however, never lo the government's rebuttal case was questionable. As the court in du Amt attempted to resort to those procedures.
noted:
- 2. Esen if a determination had been made that some or all of the documents to pmpnetan pme@n, a meh Mm M & Mn%
The rigSt of the government to show inaccuracy or to verify the accuracy wem en e have been jus %ed in Nrnng ammy on me % C umna and to present definite statistics on alleged indefinite statements made in wou defense should not be construed to open to the government an entire field of
"#C#5'N SI'"
"E I'""
exploration on issues which were present from the inception of this litigation I
"E here, the party seeking the discovery is not a competitor. Further, the rules differentiate between the release of mformation to the pubhc and tointerested 14 F.R.D. at 345. See also Associated Metals 4 Minerals Corp. v. S. S. Cecrt parties, and provide that "[w]ithholding from pubhc inspection shall not affect
//onaldt 348 F. 2d 457 (5th Cir.1965) the nght, if any, of persons properly and directly concerned to inspect the Or gw other hand, where, as here, the request for discovery is not untimely document". They exphcitly anthonie the use in appiopriate cucumstances of a under ' ie rules, and where there has been no showing that delay will necessarily protective order and ofin camcra sessions of the hearing.10 CI:It E2.790(b)(2).
or even probably result, it is an abuse of discretion to deny discovery on We have previously duected the us-of such procedures. Crmmmers Ibwcr Co.
timeliness grounds' (Nhdland Plant, Units I and 2), Al.Albl 22, RAl 73 5.722 W c t h !"71).
~
Furthermore, while the policy of disclosure comes into play wkthu a satety or ly an environmental issue is involved, there is an eyecially stront, reason for making available to parties such as the intervenors mformtr.,n wNch may In its March 27 ruling, the Iicensing floard also found that the intervenors en Me them in Me safety area to bewnw 7uh af pused at M W hm for ad effects of proposed hcensing actions" 10 CFR Q2.790(b)(1) Sec. also I tr,cmia had failed to show that the requested documents Acre " reason,bly necessary" for the presentation of evidence on ' heir Contenhon 1.1 hat finding reDects a Electric and Ibwcr Co. (North Anna Power Station, Umts I and 2j, Cl I.7416, basic misconception by the lloard of the standards governing discovery in 5"T'#-
Comnussion hcensing proceedmgs. In order to obtain discovery, all that need be "t he ljcensing floard in fact made use of protectne devnes in this shown is that the material requested is generally relevant to a matter in issue. See proceeding; and we think it should have done so in dm parhcular mstante it it 10 CFR @2.720. And,as we have previously pointed out, the relevance standard thought that proprietary protechon was wananted wn respect to N is satisfied unless the " evidence sought can have no possihte hearing upon the Weshnghouse infonnahon ?
i (See p. 462, surra). Tinn, the reasonable necessity concept plays no
- 11. Wlule the foregoing comiderations are disposaive, we add our view that.
nsues part in relevance determinahons.
m any event, the floard's analym would appear to be defectne for stdl another g
d A.1. As the cases cited in the applicant's brief on appeal indicate, the
'C 5""-
f standard of reasonable necessay adopted by the licensing floard has been apphed in situations in which documents or infonnahon sought to be produced "In Al ^ H-t % "c $Pc"f"iHY a"H'"o "'t "* H"3"1. 'I " I""nd " d PP"'P""#
I
'"'P"'*I"""'"'**"'"""*'"""""d P""'"'"""I'"'"""'"""""'""""'""
u involved trade secrets or other business conhdenhal informatmn. And, Westmg.
are crorocW in Mum W wed um M nv renee noW ** Ff u tn home asserted before the Licensmg floard that "many" of the d icuments and infornuonn ni sudi reasonat* nuniba of veohouw *"end'ol I
ane",to renroetary LN tlungs sougiit to be produced contain proprietary information; for that i
,cp,c. n.nnn of Hic intervennes as n neteuary for thein in s onihu t a incanent vt l
cuninatnn of that ininonahnn." It Al.7 s.1 at 24 3.
l^
468 469
'The Ibid wrrectly newed the essential basis of Contention I as a chaHenge neverdickss simuld not base quasned this subpoena. t s ioui me tAen steb t narr w the request to documents relevant to the particular contention under to the cors:inment ;aessure calculations subnutted by the applicant and the
' staff. But it aho expressed its behef that interveners could prove their h
c ns'deration. Not to do so was an abuse of discretion in the circurydaces of contenue.n through use of their own calculations,or through examination of the the present cast Nrnan t &hgsmr, 405 F. 2d 1326 (D C. Cir.1968).
stafrs calcubrions which led to a result roughly similar to that reached by the is'estinghouse Electric Corp. v. C tv o/Burlitigton, l't. 351 F. 2d 762 (D.C. Cir.
appbcant. (Tr. A80 83;495-97).
I965). Hon:ons Tutanium Corp. v. Norton Co., supra: Boeing stirplane ca v.
AEC rules do not confine a party to any particular method of proving a Cogshau mpa.
The Boa:d itself referred to one method of narrowing the scope of the contentmn. We have in the past acknowledged the right ofintervenors to present subpoena request. In its March 27 ruling,it recognized,as do we,that certam of their case " defensively, on the basis of cross +xamination
- It'asconsin Electric Ibwer Co. (Point Beach Nuclear Plant, Unit 2), ALAB-137, surra, RAI.73 7 at the informahon encompassed in the third paragraph of the document request 504 05. The intervenors' discovery request was assertedly designed to further the represented " relevant areas of inquiry" But it commented slut the paragraph was "t o overly general and nondescriptise" for the Board to compel exercise of this right-i.e., to permit the interrenors to examine and possibly challenge the accuracy of Westinghouse's calculations (and hence of the Westinghouse to produce "all" cocuments relevant thereto. it added that, to the calculations being utibred by the applicant).
extent the informatmn was relevant, the proper approach would seem to be oral testimony of appropriate witnesses, either by way of deposition or at tne Hearing [at p. 71.
V The intervenors claim that they in fact had attempted to take a depositmn in its brief on appeal, the apphcant has stressed the broad, far reaching scope but were precluded from doing so by the Board's order.That assessment appears of the subpoena request. It asserts that the broad and sweeping categories of to be accurate, since the subpoena ca!!ed not only for documents but also all documents specified in the subpoena "are unreasonable on their face" It testimony, and sought not the document custodian as such but rather, as well, with " knowledge" of the contents of the documents and their adds that " tens of thousands of documents and things were responsise to the s meone subpoena". (Brief, p. 38). At the 3ral argument, this point was dc veloped still apphcation to Zion. In a ey event, in ALAB-185 we exphcitly encouraged the further by the appheant (App. Bd. Tr. 82):
Licensing Board to require, if it finds it appropriate, use of that technique in c nnection with the renund proceedings which we them r rde"f (RAl 7 t 1 't Good f aith comphance with that sort of request does require that you go to perhaps such matters as the strength of the concrete used in the containment 243, (n. W
- building, the piping sires and so on; because all of [them] prcH de VI engineering justification for an aspect of the containment pressure transient.
The intervenor asserts that the "all documents" formulation is a "necessary l
W rentaming reasons assigned by the Licensing Board for quashmg the subpoena do not rcquire extended discussion.
technique where the la wyer requesting documents does not know wha t A. The Board viewed as unreasonable the demand for the West nghome documents the person has". (lhief, pp. 55-56). We agree, at least m the situation witness to be exanuned in Chicago rather than in Pdtsburgh. It did not esphcaly where, as here, the formulation is further limited by a reasonably defined subject take into account, however, the fact that the Cmmmssion's rules --unhke the matter category. The requested documents, viewed in the context of the intervenors' contention, were suffict;ently defined so as to be ascertainable.
Federal Rules of Cnd Procedure-do not specify where a deposition shouhl be lhe i oard did not in fact hohl that the document request was too broad, j
t ken or documents produced. Cf. FRCP 45(d)(2).
Smce C mmission rules do not require a depoutmn to be taken or although certain comments in its ruling suggest that to be its behef. See ahn the documents produced in a witness' home terntory,the subpocaa shouhi nor haw comments on the record by one board member (Tr. 4S3). Assuming that the been qunhed as unreasonable for not so pimithng. The intersenors comphed Board those to read the request in its broadest possible sense-as, for exainple' with the rule requaing the tendning of wnness fees and nulcam U tM Bo.ud seekmg documents which support the basic equation F = M A (ibid.)-it
- tt goes without uying, of course, that the finard ruay aho take ento as tount the Mtulony already pen by urious hn@uw and stay unnem M W WW Mh
Inicrcsongly, it is clear from the record that the stati's analysis was not wholly ihrect and (rmmamirution) m newhmg any questum whish may aow respestmg the b
wif.cnntained but was prenmed in part on conduduns supphed by the apphcant the ham of w his b w as not *crified. Sce, e g., 't r..: 3,3 65. 4 279-8n.
breadth of the diunvery request.
U 471 470
~.
-b
^J
e I'
.tfsought Chicago to be unreasonable, it could and should have modified the UNITED STATES OF AMERICA g gb;oena to make it returnable in Pittsburgh. llopn v. UltronicSystems Cg..
ATOMIC ENERGY COMMISSION 3 F.R. Serv. 2d 45b.31, Case 1 (S.D. N.Y.1964); Less v. Taber Instrun t
l Corp., 53 F.R.D. 645 (W.D. N.Y. l971).
D. F:nally, the Board found the time allowed between service and return of ATOMIC SAFETY AND LICENSING APPEAL BOARD the subpoena to be unreasonable, and that 30 days should have been permitted.
It found that Westinghouse was served on March 12,1973, and that its witness Wiltiam C. Parler, Chairman had to report by March 16. The notice of deposition and request for subpoena, Dr. John H. Buck, Member however, had been served by mail on March 2 and presumably reached Dr. Lawrence R. Ouaries. Member Westinghouse by March 5. (See 10 CFR 2.710.) Thus, Westinghnuse had substantially more actual notice of the discovery than the 4 days between the date of service and the reporting date. Nevertheless, the Board reasoned that a s
Docket N
" tl'e Matt"I o*
non-party such as Westinghouse should be afforded no less time than the 30 days given to a party responding to a motion for production of documents (1,0 CFR CONSOLIDATED EDISON COMPANY 2.741(d).)
OF NEW YORK, INC.
Section 2.720 includes no explicit requirement to that effect But if the l
Board thought that additional time was necessary in the circumstances,it cou:d (Indian Point Station, Unit No. 2)
J have modified the subpoena accordingly, The Board has broad discretion to I
I increase or reduce the time permitted for discovery. depending upon flee i
particular situation at hand. See 10 CFR 2.711. This authority extends to the NOTICE OF SUPPLEMENTAL DECISION alteration for good cause of time limits specified in the discovery rules. See,e g.,
R7irkop v. Ib/dwin,1 F.R.D.169 (D. Mass.1939), where a court directed a l
April 25,1974 party to answer interrogatories within 5 days (rather than the 15 days then l
,l permitted by the rules) **in view of the imminence of a trial. ". In any event-Our decision of April 4,1974 in tlus inoceedme, tAL All li i
since the rules de not estabbsh any specific period for a response to a subpoena, 323). resened judgment on the Citirens Committee for the Prote
[
the Board should not have quashed the subpot.n3 as being unreasonable for not Environment (CCPE's)cxceptions 18.!I which concern the applicar providing 30 days to respond. For the Board here to have done so in heu of i
security plan.
!{
exercising its authority to modify the reporting date was an Ause of in a supplemental decision inued today,' we base ruled on those Yhat dccision discuues pertinent detaih of the apphcant's physical t
'I discretion.'
I FOR TIIE ATOMIC sal ETY AND for tiie protection of the Indian Point facility. Accordingly.it is bei LICENSING APPEAL. BOARD from pubhc disclosure as provided for in 10 CFR 52.790 of the C i
regulations. Counsel for the parties who hase partiapated m the inu concerning the adequacy of the applicant's physical security plan at Margaret E. Dn Ho a copy ot the supplemental decision. They have been directed not h'
.Le to the public.
Secretary to the Appeal Board 4*
- f We have ordered, on the basis of the record m tins proceed
W6ule counut for the appbrant and th. intervenors are located in Chu ago, there nuy teEulatorI staff take prompt action to a%ure that cCr(Jin at Ur-1 be perunnive re.esons why production of the documents should take ptare sshere tbc apphcant's security plan are augmented. In pJrl. Iliis augnentatu
- r underl> ing reuvrds are located. Soacry of Independent Mormn l'rctr,rc l'roibercrr v. thurcJ because of regulatory requirements which hne been added subsei s
u I)erroe r Tricatrer Corp., R l'.R.D. 4 5 3 tl' b. Muh.194 R).
f "It need not he streucJ t!ut, in rescinng the deni.d of discovery, we cont hsded not consideration by the lacensing Board o[ the appbcant's securit) h ruerely that the Iitensing floard had cried in < pushing the subpoena t>ut, as well. that the hearing and imtnl dedsidn. Our supplemental dMision enT JMIes p
m
, q error wn prejudnial in the tircumstan(eg of this case, t/istmery orders. esen eI cironeous, sill not be merturned by us if the error wn harmless. Cf. CoIJmaer v. ChecArr Tau Co.,
325 I. 2d 853, R56 (7th Cir.1963).
. AL Alt-l'87 R. Apol 25.197a.
r.
472 473 b