ML19338E169
| ML19338E169 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 09/23/1980 |
| From: | Lessy R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SC, NUDOCS 8009250002 | |
| Download: ML19338E169 (7) | |
Text
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09/23/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NUCLEAR ENGINEERING COMPANY, INC.
)
Docket No. 27-39
)
'(Sheffield, Illinois Low-Level
)
Radioactive Waste Disposal Site)
)
MOTION BY THE NRC STAFF FOR CLARIFICATION OF "PREHEARING CONFERENCE ORDER AND ORDER SETTING TIME FOR DISCOVERY" I.
INTRODUCTION On September 9,1980 this Board issued its "Prehearing Conference Order And Order Setting Time For Discovery" (hereafter " Order") in this proceeding.
l The Order was issued by the Board subsequent to both the prehearing conference held June 28, 1980 in Peoria, Illinois and the submittal by the NRC Staff, the Nuclear Engineering Company, Inc., and Intervenor the State of Illinois of issues to be litigated in this proceeding.
The Board's Order determined that the following three issues shall be litigated:
1.
Whether the Applicant " possesses" the source, byproduct or special nuclear material at the Sheffield site.
2.
Whether NECO can unilaterally terminate License No. 13-10042-01 for activities at Sheffield without affirmative action by the Commission.
1 3.
If NECO cannot terminate its license without affirmative action by the Commission, what conditions, if any, are appropriate to impose in order to protect the public health and safety as well as the environment before NECO may quit the site.
(Order, p. 2).
.8009250ooA A
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2-s The Board also established the following schedule for discovery in this proceeding.
l.
All requests for discovery shall be made by the parties on j
or before October 10, 1980.
2.
All objections to discovery shall be filed by October 20, 1980.
i 3.
All responses to discovery requests shall be made by November 1,1980.
4.
Motions to compel discovery shall be filed by November 15, 1980.
(" Order," p. 2).
For the reasons discussed below, the NRC Staff hereby requests clarification of the relationship between issue one (1) and the remaining issues, i.e., two (2) and three (3). The Staff also requests clarification of whether the Board's discovery schedule affords parties an opportunity for depositions or other follow-up discovery.
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II.
DISCUSSION A.
Issues For Hearing
]
While the issues as delineated by this Board make clear the relationship i
between issues two and three, the Order does not expressly indicate the relation-ship, if any, between issue one and issues two and three. As the issues presently stand, the Staff believes that it is reasonably clear that a determination of whether NEC0 " possesses" the low-level radioactive waste materials at the r
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Sheffield site (Issue 1) is independent of the determination of whether NECO can unilaterally terminate its License without affirmative action by the Comission (Issue 2) and what conditions, if any, are appropriate to impose on NECO (Issue 3).
In other words, as the Staff interprets the Order, it will be necessary to litigate the unilateral termination issue (Issue 2) no matter how Issue 1 is resolved.
In the Staff's view, this is a necessary interpretation of the relationship between these issues because NEC0 has responsibilities to both the Commission and to the public, l
which must be decided 3 separately from the technical legal question of
~
" possession." 2.] While the plain reading of the issues as delineated by the Licensing Board appears to support the above interpretation of the relationship between the issues, in order to avoid any ambiguity, the Staff requests con-firmation of its understanding of the issues.
B.
Discovery Schedule The Board's discovery schedule, in essence, provides that all requests for discovery, all objections L. discovery, and all responses to discovery shall be filed as provided on October 10, October 20, and November 1,1980 respectively.
l~
. As explained by Staff Counsel at the Prehearing Conference (Tr. 130,135) and in its July 17,1980 letter to the Board, bacause, in part, of the S See " Notice of Hearing," Nuclear Engineering Company, Inc. (Sheffield, Illinois Low Level Radioactive Waste Disposal Site), p.1 (June 8,1979).
See also, Id., " Memorandum and Order," CLI-80-1, 11 NRC 1 (January 23, 1980).
Needless'to say, the Staff believes that NECO's " possession" argument lacks merit.
I.
i many technical and policy issues inherent in this proceeding, the Staff is I
requesting a two-step discovery process. Once these inter;ogatory responses t
and documents are adequately provided, the Staff would next plan to take a limited number of depositions based, in part, upon the information provided. S/
i The present discovery schedule does not expressly provide time for depositions.
as "all requests for discovery" are due approximately three weeks prior to the due date for responses. Thus, under the present Order, the Staff would be left in the position of having to prepare notices of deposition without examining i
either responses to interrogatories or the documents provided. Accordingly, i
the Staff. requests the Board to confirm its understanding that subsequent to I
the receipt and examination of initial discovery materials, the Staff, as well as any other party, will be permitted the opportunity to notice and take a reasonable number of depositions in the proceeding pursuant to 10 C.F.R. 552.740, and 2.740a of the Commission's Rules of Practice.
L i
III. CONCLUSION For the reasons stated above, the Staff hereby requests this Board to clarify the Staff's understanding that the " unilateral termination" and " appropriate termination conditions" issues will be litigated independently of the i
j
" possession" issue.
Secondly, the Staff requests the Board to confirn its' understanding that the discovery schedule will permit the taking of 2 Follow-up document requests or interrogatories may also be necessitated by incomplete responses.
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depositions (as well as any expeditious but necessary follow-up discovery to the initial discovery), after November 1,1980, upon a schedule to be developed by the parties and/or issued by this Board.
Respectfully submitted, Roy P. Lessy Counsel for NRC Staff Dated at Bethesda, Maryland this 23rd day of September,1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of NUCLEAR ENGINEERING COMPANY, INC.
)
Docket No. 27-39
)
(Sheffield, Illinois Low-Level
)
Aadioactive Waste Disposal Site)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " MOTION BY THE NRC STAFF FOR CLARIFICATION OF 'PREHEARING CONFERENCE ORDER AND ORDER SETTING TIME FOR DISC 0VERY'" in the above-captioned preceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 23rd day of September,1980:
Andrew C. Goodhope, Esq.
Cornelius J. Hollerich, Esq.
3320 Estelle Terrace State's Attorney Wheaton, Maryland 20906 Bureau County Court House Princeton, Illinois 61356 Dr. Linda W. Little 5000 Hernitage Drive Susan N. Sekuler, Esq.
Raleigh, NC 27612 Mary Jo ;iurray, Esq.
State of Illinois Environmental Control Division Dr. Forrest J. Remick 188 West Randolph Street 305 E. Hamilton Avenue Suite 2315 State College, Pennsylvania 16801 Chicago, Illinois 60601 Scott Madson, Esq.
John M. Cannon, Esq.
Assistant State's Attorney Mid-America Legal Foundation 601 South Main Street Suite 2245 Princeton, Illinois 61356 20 North Wacker Drive Chicago, Illinois 60606 D. J. McRae, Esq.
217 West Second Street Kewaunee, Illinois 61443
. Atomic Safety and Licensing Docketing and Service Section*
Board Panel
- Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Atomic Safety and Licensing Troy B. Conner, Jr., Esq.
Appeal Panel
- liark J. Wetterhahn, Esq.
U.S. Nuclear Regulatory Commission Conner, Moore & Corber Washington, D. C.
20555 1747 Pennsylvania Avenue, N.W.
Suite 1050 Robert Russell, Esq.
Washinoton, D. C.
20006 Johnson, Martin & Russell 10 Park Avenue West Princeton, Illinois 61356 Admi-a! Vincent P. de Poix Chairman of the Board Nuclear Engineering Comnany, Inc.
110017th Street, N.W.
10th Floor, Suite 1000 Washington, D.C.
20036 Roy P. Lessy g Counsel for NRC Staff
.