ML19340D078
| ML19340D078 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 12/08/1980 |
| From: | Stephen Burns NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SL, NUDOCS 8012290026 | |
| Download: ML19340D078 (6) | |
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12/8/80 f
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIO!1 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
DAIRYLAND POWER COOPERATIVE Docket No. 50-409-SC (La Crosse Boiling Water Reactor)
(OrdertoShowCause)
NRC STAFF'S ANSWER TO CONSOLIDATED PARTIES' MOTION FOR EXTENSION OF TIME AND MOTION TO COMPEL DISCOVERY On November 21, 1980, Anne K. Morse filed a motion to compel discovery of the NRC Staff. The motion being otherwise untimely filed, Ms. Morse also filed a motion for extension of time in which to file the motion to compel discovery. On their face, the motions are without merit and should be denied.
Answer to Motion for Extension of Time The NRC Staff served its answers to the consolidated parties' inter-rogatories on October 27, 1980, the date specified for answers in the Board's Order of October 20, 1980.
Under the Commission's rules of practice, the motion to compel should have been filed by November 12,1980.1/ Ms. Morse did not file the motion to compel and motion for extension of time until November 21, 1980. While making general reference to the need for a " complete lf See 10 CFR 2.740(f), which allows 10 days to file a motion to compel af ter the service of the discovery response. An additional 5 days was pennitted here, because the Staff's answers were served by mail.
10 CFR 2.71 0.
Since the fifteenth day after service fell on November 11, 1980, a federal holiday, the consolidated parties could have filed a timely motion on the next day, November 12th. Jd_.
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and full record" in this proceeding, Ms. Morse relies specifically on the fact that she "is proceeding on a pro se defense, and as such was not aware of the time limitation of 15 days set for the filing of motions to compel d i sc overy. " The fact that the consolidated parties are not represented by counsel is not in itself an adequate excuse for claiming ignorance of dead-lines or for missing such deadlines. The Appeal Board has noted that "we do relax our rules to accommodate the fact that a party may not have the benefit of counsel.... But no good reason exists why a double standard should obtain insofar as obser-vance of deadlines is concerned. A nonlawyer has no less capability than does a member of the Bar to apprehend when a document is due for filing...."
Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 2), ALAB-474, 7 NRC 746, 748 (1978).
Ms. Morse, who represents CREC (one of the consolidated parties), is not a novice to NRC proceedings.
CREC has participated in proceedings concerning expansion of the LACBWR spent fuel pool and issuance of the full-term operating license. Thus, Ms. Horse and CREC can be presumed to have at least a passing familiarity with the Commission's rules of practice and should be able to identify the prescribed deadlines. Time extensions are certainly warranted under appropriate circumstances, but the consolidated parties are not entitled to rest on their laymen's status as an excuse for ignorance of filing deadlines. The motion for extension of time should be denied.
Answer to Motion to Compel Even if the Board grants the motion for extension of time and thereby considers the motion to compel, the Board should deny the motion to compel discovery of the NRC Staff. Under its Prehearing Conference Order of
1 3-September 30, 1980, the Board specifically provided that initial discovery in this proceeding was not to include any inquiry into the seismic issues which may be litigated.
Prehearing Conference Order at 14. The Board limited initial discovery to matters concerning liquefaction potential at 0.12g, because a question had been raised concerning its authority to con-sider the appropriateness of the 0.12g value in reaching a decision in this proceeding.
See Prehearing Conference Order at 4,15-21.2.f The Staff objected to CREC interrogatories 1 througn 11 and Olsen interrogatories 5 through 7 on the grounds that the interrogatories sought information concerning the seismic issues which the Board had excluded from initial discovery in this proceeding. The Staff noted that the Board would probably establish an additional period for discovery if seismic issues were detennined to be within the scope of this proceeding and that the Staff would answer the interrogatories if they were resubmitted when such discovery was pemitted by the Board.
Ms. Morse states that, in her understanding, the Board did not exclude all seismic issues from discovery. This is, however, precisely what the Board did.
The Board recognized that the challenge to its authority to explore seismic parameters was based on the notion that the 0.12g value was a "given" in this proceeding. Prehearing Conference Order at 15.
If the 0.12g value were a "given", then the Board would have no authority to examine the basis for the 0.12g value or the appropriateness of any other ground
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The Board is empowered under 10 CFR 2.718 to " regulate the course of the hearing". The Board's detemination to restrict the scope of discovery until it received a clarification of its authority was certainly a reasonable exercise of its power to regulate the course of this proceeding.
i acceleration value.U Discovery on seismic matters would be, therefore, irrelevant since such discovery would not " relate t'o the matters in con-troversy" within the scope of the proceeding.
10 CFR 2.740(b)(1); see also Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station, LBP-77-13, 5 NRC 489, 491-92 (1977).
The Board's Prehearing Corference Order could not state more clearly that all seismic issues were indeed excluded from initial discovery. Ms. Morse has offere'd no good grounds for granting her motion, and her motion to compel discovery, therefore, should be denied.
Conclusion Apart from the foregoing substantive bases for denying the two motions, the motions may be essentially moot in view of recent developments in this proceeding. On November 17, 1980, the Appeal Board detennined in ALAB-618 that the Licensing Board does have the authority to explore seismic issues in this proceeding.O The Licensing Board announced in its Order of Novem-ber 25, 1980, that it intends to discuss discovery and scheduling with respect to seismic issues at the December 17th prehearing conference. The Staff anticipates that the Board will eventually establish a discovery schedule on seismic issues (assuming the Commission declines to review or 3/
Ms. Morse states in her motion that the questions did not challenge the 0.12g value, but referred to the Staff's probability studies and asked
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"how the figure.12g was arrived at."
The interrogatories ask about seismic probability studies and the basis for using particular seismic pa rameters.
See, eg., CREC interrogatories 2, 3 & 9; Olsen interroga-tory 7.
Discovery on such seismic matters is simply beyond the scope of current discovery.
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On December 1,1980 the licensee petitioned the Commission for review of ALAB-618.
i j
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-s-affinns ALAB-618) at which time the consolidated parties would be entitled
,I to resubmit their interrogatories.
For the reasons stated in this answer, the motion for extension of time i
j and tha motion to compel discovery should be denied.
j Respectfully submitted, l
Stephen G. Burns i
Counsel to NRC Staff i
Dated at Bethesda, Maryland this 8th day of December,1980.
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I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
DAIRYLAND POWER COOPERATIVE Docket No. 50-409-SC (La Crosse Boiling Water Reactor)
)
(Order to Show Cause)
CERTIFICATE OF SERVIC:
I herrty certify that copies of the NRC STAFF'S ANSWER TO CONSOLIDATED PARTIES' MOTION FOR EXTENSION OF TIME AND MOTION TO COMPEL DISCOVERY in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk, throuch deposit in the Nuclear Regulatory Comission's internal mail systen, this 8th day of December 1980.
Charles Bechhoefer, Esq.*
- 0. S. Hiestand, Esq.
Chairman Kevin Gallen, Esq.
Atomic Safety & Licensing Board Morgan, Lewis & Bockius U. S. Nuclear Regulatory Commission 1800 M Street, N. W.
Washington, D. C. 20555 Washington, D. C. 20036 Mr. Ralph Decker Atomic Safety & Licensing Board Panel
- Route 4, Box 190D U. S. Nuclear Regulatory Comission Cambridge, Maryland 21613 Washington, D. C. 20555 Dr. George C. Anderson Atomic Safety & Licensing Appeal Panel' Department of Oceanography U. S. Nuclear Regulatory Commission University of Washington Washington, D. C. 20555 Seattle, Washington 98195 Mr. Frederick M. Olsen, III Coulee Region Energy Coalition 609 N. lith Street Attn: Ms. Ann K. Morse La Crosse, Wisconsin 54601 P. O. Box 1583 La Crosse, Wisconsin 54601 Docketing & Service Section
- U. S. Nuclear Regulatory Commission Fritz Schubert, Esq.
Washington, D. C. 20555 Staff Attorney Dairyland Power Cocoerat1Ye 2615 East Avenue, South
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La Crosse, Wisconsin 54601 g-g Mr. Frank Linder Stephen 5. Burns General Manager Counsel for NRC Staff Dairyland Power Cooperative 2615 East Avenue, South La Crosse, Wisconsin 54601