ML19308D018
| ML19308D018 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/08/1980 |
| From: | Singer L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002130096 | |
| Download: ML19308D018 (7) | |
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02/08/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0tHISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of METROPOLITAN EDISON COMPANY, Docket No. 50-289 ET AL.
(Three Mile Island, Unit 1)
)
NRC STAFF RESPONSE TO UNION OF CONCERNED SCIENTISTS MOTION FOR AN ORDER TO COMPEL THE NRC STAFF TO RESPOND TO INTERR0GATORIES 1
On December 21, 1979, the Union of Concerned Scientists (UCS) filed its first set of interrogatories to the Staff. The Staff, in turn, filed its answers to these interrogatories on January 10, 1980.
UCS, dissatisfied with the Staff's response, filed a pleading entitled " Union of Concerned Scientists Motion For An Order To Compel The NRC Staff To Respond To Interrogatories," dated January 25, 1980 (Motion).
I.
Title 10, Part 2 of the C3de of Federal Regulations (Code) governs the procedures applicable to discovery of the Staff conducted in preparation for NRC proceedings.
10 C.F.R. 52.740 encompasses the general provisions relating to discovery.
Section 2.740(f)(1) allows the propounder of interrogatories to move for an order compelling a response to its interrogatories within ten days after the date of a response or failure to respond by the party to whom the interrogatories wereaddressed.S Section 2.740(f)(3) expressly states, however, that S ven if 92.740(f)(1) applied to the Staff, which it does not (see text and E
accompanying note 2, infra), UCS has failed to file its Motion in a tiimely manner, namely within 10 days of the Staff's response to its interrogatories.
The Staff filed its answers to UCS' interrogatories on January 10, 1980.
UCS filed its Motion on January 25, 1980, fifteen days after the. Staff's response and five days too late.
8002130 8f[
. section 2.740 does not apply to requests for the testimony or interrogatories of the Staff pursuant to 52.720(h)(2).S Therefore, UCS has filed its motion without the benefit of legal authorization pursuant to the applicable NRC regulations.
Moreover, if UCS had properly addressed its interrogatories to the Staff l
in accordance with section 2.720(h)(2)(fi), a motion for an order to compel would be unnecessary. Section 2.720(h)(2)(ii) requires that:
... a party may file with the presiding officer written interrogatories to be answered by NRC personnel with knowledge of the facts designated by the Executive Director for Operations.
Upon a finding by the pre-siding officer that answers to the interrogatories are necessary to a proper decision in the proceeding and that answers to the interrogatories are not reason-ably obtainable from any other source, the presiding officer may require that the staff answer the inter-rogatories.
UCS did not file its interrogatories with the Licensing Board and thus failed to trigger the two-fold determination by the Board that (l', answers to the interrogatories are necessary to a proper decision in the proceeding and (2) 1 answers to the interrogatories are not reasonably obtainable from any other source.
Upon a positive determination on both counts the Board might require the Staff to provide answers to the interrogatories.
Because UCS failed to S Section 2.740(f)(3) states that I
... [t]his section does not apply to requests for the testimony or interrogatories.of the staff pursuant to.
52.720(h)(2)..., except for paragraphs (c) and (e) of this section.
Paragraph (c) relates to protective orders and paragraph (e) concerns supplementation of responses.
- follow this procedure, which would have resulted in a Board ruling that would, in essence, have compelled the Staff to respond to interrogatories deemed appropriate by the Board, UCS' motion for an order to compel is without legal foundati'on and must be denied.
II.
To state that the UCS' motion is legally impennissible and should not'be granted is not, however, to suggest that the Staff does not intend to make every effort to voluntarily assist in the discovery process.and to fully cooperate in the production of information relevant and necessary for the parties to properly present and litigate their case. While certain of the Staff's recent answers to UCS' interrogatories were either not provided or were only partially com-plete, the Staff nonetheless did attempt to answer each question in good faith using the information it had available to it at the time.
- Moreover, as the Staff conducts further studies and as more information becomes available, it will make every effort to provide more complete and responsiven answers to these interrogitories.
It should be understood, however, that various Staff positions currently remain undeveloped. These positions therefore have yet to be written, reviewed administratively and printed for publication. Although the Staff is now attempting to comrlete its analyses as quickly as possible, it should be recognized that the Staff does not have a legal duty to devise positions as yet unformulated or complete analyses or research as yet unaccomplished in order to respond to interrogatories.
See Boston Edison Company (Pilgrim
. Nuclear Generating Station, Unit 2), LBP-75-30,1 NRC 579, 583, 584 (1975)
(party ordinarily not required "to make research and compilation of data not readily known to him"); La Chemise Lacoste v. Alligator Company, Inc., 60 F.R.D.
164,171 (D. Del.1973) (party should not be required to enter upon extensive independent research).
Morcover, the need for the Staff to fully complete its review and analyses before asser: ting its position in an adjudicatory proceeding was recognized by the Comission in its October 10, 1979 Interim Statement of Policy and Procedure. 44 Fed. Reg. 58559 (October 10,1979).
In this statement, the i
Commission authorized the Staff to "present evidence on the implications of
[
i the accident (at Three Mile Island] for resolution of proceedings now before
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Atomic Safety and Licensing Boards."
Ibid. However, in so doing, the i
Comission also stated that the " Staff [was] free to conclude on a case-by-case basis that further consideration [was] required before it [was] prepared to speak to a particQlar issue or in a particular proceeding, and it [could]
appropriately communicate any such conclusion to the Conmission's adjudicatory boards."
Ibid.
In the present proceedirg because of personnel limitations, the Staff has 1
experienced substantial difficulty in completing the analyses and research j
necessary to fully and responsively reply to UCS' interrogatories.
- However, t
such review is continuing, and as soon as manpower and resources permit, the Staff will answer fully all interrogatories propounded by the UCS, as to i
which no objection has been interposed.
i I
i I
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Accordingly, based upon this representation, it is the view of the Staff that the Motion filed by UCS for an order to compel discovery is neither
[
necessary or appropriate and should be denied.
Respectfully submitted, C-
_cr-(%
U_
k isa N. Singer
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Counsel for NRC Staff Dated at Bethesda, Maryland '
this 8th day of February,1980 i
I G
0 e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICE!! SING BOARD In the Matter of METROPOLITAN EDISON COMPANY,
)
Docket No. 50-289
~
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(Three Mile Island, Unit 1)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO UNION OF CONCERNED SCIENTISTS MOTION FOR AN ORDER TO COMPEL THE NRC STAFF TO RESPOND TO INTERR0pATORIES" in the ;
above-captioned proceeding. have been served or the following -by deposit in the United States mail, first class, or, as indicated by an asterisk, through 'eposit :.
d in the Nuclear Regulatory Conunission's internal mail system, 'this 8th day of February,1980:
i
- Ivan W. Smith, Esq.
Ellyn Weiss, Esq.
Atomic Safety & Licensing Board Panel Sheldon Harmon, Roisman & Weiss U.S. Nuclear Regulatory Commission he50
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Washington, D. C.
20555 Washington, D.C.
20006 Dr. Walter H. Jordan Mr. Steven C. Sholly 881 W. Outer Drive 304 South Market Street Oak Ridge, Tennessee 37830 Mechanicsburg, Pennsylvania 17055 Dr. Linda W. Little 5000 Hermitage Drive Mr. Thomas Gerusky Raleigh, North Carolina 27612 Bureau of Radiation Protection Department of Environmental Resources George F. Trowbridge, Esq.
P.O. Box 2063 Shaw, Pittman, Potts & Trowbridge Harrisburg, Pennsylvania 17120 1800 M Street, N.W.
Washington, D. C.
20006 Mr. Marvin I. Lewis 6504 Bradford Terrace l
Karin W. Carter, Esq.
Philadelphia, Pennsylvania 19149 505 Executive House P. O. Box 2357 Metropolitan' Edison Company Harrisburg, Pennsylvania 17120 Attn:
J. G. Herbein, Vice President P.O. Box S42 Reading, Pennsylvania 19603 Honorable Mark Cohen 512 E-3 Main Capital Building Ms. Jane Lee Harrisburg, Pennsylvania 17120 R.D. 3; Box 3521 Etters, Pennsylvania 17319
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" :2-Walter W. Cohen, Consumer Advocate Holly S. Keck Department of Justice Anti-Nuclear Group Representing Strawberry Square,14th Floor York Harrisburg, Pennsylvania 17127 245 W. Philadelphia Street York, Pennsylvania 17404 Robert L. Knupp, Esq.
Assistant Solicitor John Levin, Esq.
Knupp and Andrews Pennsylvania Public Utilities Cc::rn; P.O. Box P Box 3265 407 N. Front Street Harrisburg, Pennsylvania 17120 Harrisburg, Pennsylvania 17108 Jordan D. Cunningham, Esq.
John E. Minnich, Chairman Fox, Farr and Cunningham Dauphin Co. Board of Conrnissioners 2320 North 2nd Street Dauphin County Courthouse Harrisburg, Pennsylvania 17110 Front and Market Sts.
Harrisburg, Pennsylvania.17101 Ms. Kathy Mc0aughin Three Mile Island Alert. Inc. '.
- Atomic Safety and Licensing Appeal Board 23 South 21st Street U.S. Nuclear Regulatory Commission Harrisburg, Pennsylvania 17104 Washington, D. C.
20555 s Ma jorie M. Aamodt
- Atomic Safety and Licensing Board Panel 9
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U.S. Nuclear Regulatory Commission Coatesville, Pennsylvania 19320 Washington, D. C.
20555
- Docketing and Service Section U.S. Nuclear Regulatory Commission Ms. Karen Sheldon e
Washington, D. C.
20555 Sheldon, Harmon, Roisman & Weiss 1725 I Street, N. W.
Suite 506 Robert Q. Pollard Washington, D. C.
20006 Chesapeak Energy Alliance
'609 Montpelier Street Baltimore, Maryland 21218 Chauncey Kepford Judith H. Johnsrud Environmental Coalition on Nuclear Power 433 Orlando Avenue State College, Pennsylvania 16801 Ms. Frieda Berryhill, Chairman Coalition for Nuclear Power Plant Postponement 2610 Grendon Drive Wilmington, Delaware 19808 LN James M. Cutehin, IV Counsel for NRC Staff 9
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