ML19290D535
| ML19290D535 | |
| Person / Time | |
|---|---|
| Site: | Fermi  |
| Issue date: | 02/15/1980 |
| From: | Bechhoefer C Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8002220133 | |
| Download: ML19290D535 (7) | |
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FEB10 000 UNITED STATES OF AMERICA csJ
'b NUCLEAR REGULATORY COMMISSION N
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u ry ATOMIC SAFETY AND LICENSING BOARD y
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s' Charles Bechhoefer, Chairman Dr. David R. Schink, Member O
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Frederick J. Shon, Member O
a cn In the Matter of
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DETROIT EDISON COMPANY, ET AL.
Docket No. 50-341
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(Enrico Fermi Atomic Power Plant,
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Unit 2)
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MEMORANDUM AND ORDER RULING ON DISCOVER.Y AND SCHEDULING MOTIONS (February 15, 1980)
A.
In our Order of March 21, 1979, we accepted contentions to which the parties had stipulated (pursuant to criteria spelled out in our Prehearing Conference Order of January 2, 1979, LBP-79-1, 9 NRC 73) and established a preliminary schedule for this proceeding.
Since that time, all parties have engaged in discovery.
Several motions have been filed by varicus parties; we treat them here seriatim.
1.
The first motion was filed by the Applicants, object-ing to certain of the ~.nterrogatories or requests for production of documents filed agai.nst them by CEE.
Although not so denominated, we assume the Applicant > seek a protective order pursuant to 10 CFR S2.740(c) with respect to the particular matters to which they indicated an objection.
Absent any response by CEE to such o3jec-
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tions, we grant the Applicants a protective order with rernec't 800620
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~~ thereto.
In doing so, we take no position on the merits of the request.
We note, however, that with respect to certain interrog-atories or requests for production of documents, the Applicants characterize the inquiries as beyond the scope of applicable conten-tions and have declined to respond absent a further showing by CEE of the relevance of its request.
Our grant of a protective order is without prejudice to any further showing which CEE may wish to make in this regard within the time fear.te we hereaf ter are establish-ing for supplemental discovery requests.
2.
The Applicants have also filed a consolidated motion to compel discovery and for summary disposition of Contention 11.
Insofar as the discovery motion is concerned, the Applicants sought more detailed answers than those previously furnished by CEE to their interrogatories 2, 3, 4, 5 and 6.
In its response, CEE in effect provided further detcils or explanation concerning its earlier answers.
Whether or not those further responses meet all the objec-tions raised by the Applicants with respect to CEE's earlier re-sponses, they appear to meet many of them.
In the absence of any further objection by the Apolicants, we regard their motion to com-pel discovery as moot.
We note, however, that we agree with the Applicants that, if CEE is worried about reprisals against certain of its informants or proposed witnesses, it should have proceeded by requesting a pro-tective order.
On the other hand, we do not agree with their fur-ther implicit premise that the names of all such informants or' witnesses must necessarily be made available to them without any
.. limitation as to the use which may be made of that information.
In a somewhat different context, the Appeal Board recently dealt with an analogous question and established the following procedure:
Upon a determination that an adequate showing has been made that public revelation of the identity of a member of the petitioner organ-ization might threaten rights of association,
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the licensing board should place a protective order upon that information.
The order should provide that the information need be supplied only to the members of the Board and one or more designated representatives of the other parties to the proceeding.
Additionally, it should prohibit further dissemination of the information to anyone (other than a member of a reviewing tribunal).
Houston Lighting ana "cuer Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9.NRC 377, 400 (1979).
Although that ruling concerned the question whether an organization must reveal the name of at least one member to establish its standing to intervene, and considered whether such a requirement would threaten the rights of association of the named member, the principle established by the Appeal Board is equally applicable here:
where revealing the name of an informant or proposed witness would occasion harm to or reprisal against such person, the Board can and should take steps to protect that person, consistent with achieving to the extent possible the purposes of NRC's discovery rules.
As for the Applicants' motion for summary disposition of Contention 11, CEE has indicated th at it wishes to withdraw
that contention.
Nevertheless, we will defer acting upon the Applicants' motion pending our receipt and examination of any further review by the Staff on this subject..
3.
In its response to the Applicants' motion for summary disposition of Contention 11, CEE also requested a modification of the discovery schedule in view of an arserted delay in the construc-tion of the facility.
The Applicants' response to CEE's request conceded that the estimated fuel loading date for the facility had been delayed from June, 1980 (the date upon which the dis-covery schedule which we adopted had been in part premised) until May, 1981.
But the Applicants opposed any extension of the dis-covery schedule because of their wish to complete the licensing process as quickly as possible.
The Staff also opposed the request, on the ground that the previous schedule was reasonable regardless of the prospective fuel load date.
Although we agree with the Staff that our original discovery schedule included reasonable times for both propounding and responding to discovery requests, we recognize that the require-ments of discovery are likely to prove to be much more of a formi-dable burden to an ill-funded organization such as CEE than to the Applicants or Staff.
Adequate preparation by such an organization may well require more time than for a better funded organization.
Development of an adequate record may well be enhanced by the allowance of additional time to prepare for the hearing.
We
. are thus inclined to accommodate,a request such as that of CEE where it does not appear to produce a significant impact on the progress of the proceeding and, in particular, our ability to render a decision prior to a projected fuel loading date.
At the present time, we do not have adequate infor-mation to set a revised discovery schedule., In part B, below, we are requesting such information, and to the extent appropriate we expect to establish a new schedule after we have received it.
In the interim, CEE has identified one area -- the quality assurance and quality control documents relating to Contention 4 -- where it claims it needs further time for discovery.
We grant all parties 15 days from the service of this Order to file further first-round discovery requests related to that contention; responses to such further requests must be filed within 30 days of the service of the further request.
In addition, the time for submission of supplemental discovery requests on all contentions is extended to 15 days from the service of this Order, or 30 days from service of the first-round response or of a newly issued document, whichever is later.
Other portions of the previously established schedule remain unchanged for the present.
4.
On October 4, 1979, the Staff filed a motion for an order compelling CEE to respond to the Staff's interrogatories on Contention 14.
CEE's prior response to those interrogatories indicated only that CEE lacked the technical expertise, staff and
.. financing to answer such interrogatories, that it was not in a position to advocate Contention 14, but that it "does not take the position that there is no merit" to its claims.
That answer is not sufficient.
Although a party need not perform studies or seek out information not in its possession in order to answer interrogatories, it must identify any relevant information in its possession called for by such interrogatories.
If CEE believes its Contention 14 may have merit, it should reveal to the Staff why this is so.
We note that, in the'near future, the Appeal Board is to hold an evidentiary hearing regarding radon releases, the subject of CEE's Contention 14.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), et al., ALAB-566, 10 NRC (October 11, 1979); id., Order dated November 2, 1979.
The Appeal Board's decision in that matter will likely have generic aspects applicable to the resolution of radon-release issues in proceedings such as this.
That decision may well issue prior to the evidentiary hearings in this proceeding.
For these reasons, it is important that the source of CEE's concerns, if any, be revealed, so that the Staff can determine whether matters not heretofore dealt with by the Appeal Board, or not dealt with in its forthcoming decision, may be at issue here.
CEE is therefore directed to answer the Staff's interrogatories on Contention 14 within 45 days of the service of this Order, or at the same time it may be asked by the Staff to provide further information on Contention 4, whichever is later.
B.
To enable us to plan for the course of this proceeding, the Applicants are requested to furnish us, at their convenience, with a report on the status of construction, their currently esti-mated fuel load date, and their wishes with respect to further dis-covery and the scheduling of a prehearing conference and the evi-dentiary hearing or hearings.
The Staff is requested to provide us its latest estimate for completion of construction and for the issu-ance of various documents (such as the SER, SZR Supplements, and environmental documents), as well as its views on discovery and the scheduling of a prehearing conference and hearing.
Within 7 days of service of the last of the responses of the Applicants or Staff, CEE is invited to comment on any proposed schedules which have been sub-mitted and to advise us with respect to its needs, if any, for fur-ther discovery.
(Should the parties wish to attempt to formulate an agreed-upon schedule for discovery and hearings, we encourage them to do so.)
THE ATOMIC SAFETY AND LICENSING BOARD fobu Ab W
Charles Bechhoefer,pChairman Dated at Bethesda, Maryland, this 15th day of February, 1980.