ML19308C659
| ML19308C659 | |
| Person / Time | |
|---|---|
| Issue date: | 01/29/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-44FR61372, RULE-PR-50, RULE-PR-51 NUDOCS 8002010063 | |
| Download: ML19308C659 (4) | |
Text
e coCKETED USNRC CJ UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4
JAN M N e of theSeastny -10 Docietn & sette Branch 9
)
k In the Matter at PROPOSED RULEMAKING ON THE STORAGE
)
PR-50, 51 (44 FR 61372)
AND DISPOSAL 0F NUCLEAR WASTE ORDER In the Notice of Proposed Rulemaking which initiated this proceeding, 44 Fed. Reg. 61372 (October 25,1979), the Commission stated that participants and members of the public should file their views on whether formal discovery procedures should be employed.
The Commission also requested the presiding officer to summarize those views and present his own recommendation to the Commission. The presiding officer has done so in a memorandum to the Commission, dated 1/7/80 The presiding officer notes that among 60 persons or organizations who have filed notices of intent to become full participants there were 24 who expressed views regarding discovery.
Of these,10 indicated either that they are opposed to allowing discovery in this proceeding or that they favor strict control and limitation to compelling need.
The other 14 responding on the issue favored some fonn of discovery.
Reasons given for opposing or severely limiting intra-party discovery include concerns that it would delay the proceeding, introduce n,c-adversarial attitudes and contentiousness, and impose vexatious and costly processes upon parties, discouraging their participation.
Some commenters pointed out that needed information would be available through the data bank provided by the Commission, the opportunity to file cross-statements of position, and the submission of questions to be asked by the Commission if an oral hearing is held.
Infonnation could also be obtained from federal agencies through l
requests under the Freedom of Information Act.
5 U.S.C. Sec. 552.
8002010 O O
2 Participants favoring the allowance of discovery generally felt that discovery would e'nhance the quality of their participation.
Some suggested that harrassment could be avoided by establishing a mechanism for protective orders, directing discovery to relevant issues and genuine questions of fact.
One asked that individuals and citizen groups be exempt from discovery so that they would not be unduly burdened or deterred from participating.
Balancing these arguments pro and con, the presiding officer concluded that necessary information will be reasonably available under the procedures described in the notice of rulemaking and that the detriments of formal discovery would greatly outweigh any benefits. The Commission agrees with this view.
It is the Commission's intention that the procedures already set forth, which include the availability of a comprehensive bibliography and data bank, should be so imple-mented that all information of importance to this proceeding will be readily available.
The Commission has also already noted its expectation that full participants will make relevant documents in their possession available to other full participants and will reference and produce on request the documents on which they rely.
Accordingly, the Commission has determined that formal dis-covery in accordance with procedures set forth in 10 CFR Part 2 will not be pennitted in the stages of the proceeding prior to the second prehearing order.
Any discovery permitted in the later stages of the proceeding will be strictly limited to cases where it can be demonstrated that without the requested discovery a record adequate for a sound decision cannot be prepared.
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It is so ORDERED.
For the Commission 3
SAMUEL J. C LT Secretary of the ommission Dated at Washington, DC, this Mb day of January,1980.
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DISSENTING VIEWS OF COMMISSIONER BRADFORD t
Discovery and cross-examination are to legal proceedings more less what peer review is to scientific inquiry and publica-i or tion.
To dispense with them or to curtail them unduly is to run the same type of risks that the AEC/NRC ran with the early publication of WASH-1400.
I strongly endorse giving the presiding officer the power to control abusive, excessive or dilatory discovery practices, but I would not eliminate discovery itself for most practical purposes in the manner proposed here.
The history of past federal statements of confidence on nuclear waste disposal is a paradoxical one, i.e.,
the more inadequate the data, the more positive the statements.
This has resulted in a situation in which the degree of certainty in the statements has generally decreased as the factual assessments have increased.
These circumstances suggest that detailed specific probing is important at least to defining the level of uncertainty that attaches to any statement of confidence that we ultimately issue.
The order suggests that discovery, if any, be permitted at the later stages of the proceeding " strictly limited to cases where it can be demonstrated that without the requested discovery a record adequate for a sound decision cannot be prepared."
The words " strictly" and "cannot" make for an insurmountable standard.
I would urge that discovery, limited as seems reasonable to the presiding officer, be allowed following the initial submissions upon a showing that it is uniquely necessary to obtain information that is not available through the comprehensive bibliography, the l
data book, or other aspects of the proceeding.
We should not l
rely on the Freedom of Information Act as a substitute for l
discovery.
The administration of that Act by other agencies is l
not within our control and our proceeding might be delayed while FOIA appeals were being processed elsewhere.
Furthermore, the FOIA cannot take the place of interrogatories and other methods of discovery.
I would have no objection to banning discovery unrelated to the content of the party's statement, i.e.,
inquiries into the bona fides of an organization or the technical qualifications of its witnesses.