ML19343A282
| ML19343A282 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 09/15/1980 |
| From: | Gray J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8009170165 | |
| Download: ML19343A282 (7) | |
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- TSTAFF, 09/15/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.BEFORE THE ATOMIC' SAFETY AND LICENSING BOARD In the Matter of.
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' METROPOLITAN EDISON COMPANY, ET AL.
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Docket No. 50-289
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(Restart)
-(Three Mile Island Nuclear Station,
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-Unit 1)
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NRC STAFF'S RESPONSE TO ANGRY'S REQUEST' FOR SUBPOENA OF RANDY L. CURRY l.
Introduction On August' 19, 1980, Intervenor ANGRY, acting through its attorney, filed a notice of deposition directed.to Randy L. Curry, Director of the York County-Emergency Management Agency.
Subsequently, Mr. Curry allegedly-notified ANGRY that he would not appear to give his deposition pursuant to such notice with-out. compulsory. process, presumably in the form of a subpoena commanding his appearance. Accordingly, on September 3, 1980, ANGRY filed an application i
for a subpoena which.would require Mr. Curry to appear for deposition on l
' emergency planning and preparedness for York County and to bring with him a log of a test exercise in which York County participated in July 1980. ANGRY's request ~ forLsubpoena raises questions on whether persons not parties may be subpoenaed in NRC proceedings, whether the request is made is accordance with the regulations, and whether this request for additional discovery is timely.
t The NRC. Staff's position on these questions and on ANGRY's request for a subpoena is set forth below.
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NRC Staff's Position on ANGRY's Application for Subpoena ANGRY's -original notice of deposition and its pending request for a subpoena are directed to Randy L. Curry, a-person who is not a. party to the TMI-l
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restart proceeding. Thus, an initial question that is raised is whether a person not a party is subject to deposition and to subpoenas requiring depo-sition and the production of documents.
In this regard, 10 CFR 8 2.740a(a) provides, in part, that
[a]ny party desiring to take the testimony of any party or other person by deposition on oral examination or written interrogatories shall, without leave of the Commis-sion or the presiding officer, give reasonable notice in writing.... (emphasis added).
Similarly,10 CFR 6 2.740(f)(3) provides, in part, that
[t]his section does not preclude an independent request for issuance of a subpoena directed to a person not a
party for production of documents and things.
(emphasis added).
The quoted regulations thus appear to allow a party to depose a person not a party and to seek a subpoena compelling such person to produce requested documents. The Appeal Board itself has tacitly, although not explicitly, acknowledged the right of a party to seek a subpoena requiring the deposition of a person not a party and the production documents by such person.
- See, e.g. Consumers Power Company (Midland Plant, Units 1 & 2), ALAB-122, 6 AEC 322 (1973); Commonwealth Edison Company (Zion Station, Units 1 & 2), ALAB-ll6, 6 AEC 258 (1973).
In view of this, it appears that ANGRY is within its rights in the instant proceeding in seeking to depose Mr. Curry and in requesting a subpoena compelling deposition and the production of documente.
- Thus, ANGRY's application for subpoena is not objectionable simply because it is directed to a person not a party.
Under the NRC's rules of practice, a party desiring to take a deposition of a party or other person is to give reascnable notice, in writing, to the presiding officer, to the other partim and to the person to be deposed, of
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L the time ~and' place for the deposition, of.the name and addreas of the person to be deposed, of the matters upon which the person is to be examined, and f
of the name or descriptive title and the address of the. officer before whom 2
the deposition is to be taken. ~10 CFR H 2.740a(a).
For the most part, ANGRY's 2 August 19, 1980. notice of deposition to Mr. Curry complies with the substance of these requirements. /' As to the application for subpoena, ANGRY has indi-1 cated that Mr. Curry will be deposed on matters related to York County's Emergency Plan and its inter-relationship with the plans of the State, the Licensee and local muncipalities.
Such matters are clearly relevant to cer-
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tain of ANGRY's contentions and to emergency planning issues in the restart l'
proceeding and, thus, ANGRY has, in its application for subpoena, made the showing of general relevance of_the testimony sought, as referenced in 10 CFR l
6 2.720(a).
Consequently, ANGRY.has, to this point, substantially complied with the requirements for a subpoena under Section 2.720(a).2/
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ANGRY represents that the notice of deposition was served on Mr. Cu ry, the Licensing Board, the Licensee and the Staff.'
The other parties to the restart proceeding apparently were not served.
In addition, the l
name/ title and address of the officer.before whom the deposition was to j
be taken were not supplied in the notice of deposition. Thus, the notice
-of deposition did not comply with all aspects of 10 CFR H 2.740(a).
However, Mr. Curry, to whom the notice of deposition _was principally directed," apparer.tly did not object to being deposed on the ground that the notice of deposition did not comply with each and every one of the technical requirements of Section 2.740a(a).
In any event, should ANGRY's request-for a subpoena be granted, it is the Staff's view that ANGRY should be required to give timely advance notice to all parties.
of the time and place of the deposition so that each party may attend the deposition if it so desires and so-that this requirement of 2.740a(a) will be satisfied.
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i ANGRY' requests that the subpoena require Mr. Curry to appear for deposi-tion on September 17, 1980.
Since the application for sabpoena was served
'by' deposit in the mails on September 3, 1980 (the Staff.did not receive a copy until September.8), issuance of a' subpoena requiring deposition
'by September 17 would allow little time for other parties to the proceed-ing'to have received the application for subpoena, expressed any objec-
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e.
A final question rasied by ANGRY's application for subpoena is whether, in fact, this request for discovery is timely. Under the Licensing Board's July 15, 1980 " Memorandum and Order Resuming Schedule for Discovery and Contentions on Emergency Planning," discovery on new information in revision 2 to the Licensee's emergency plan was to Se filed within 10 days of the date of service of the Board's Order or by approximately July 30, 1980 (10 CFR N 2.710).
ANGRY did not file its notice of deposition until August 19, 1980, nearly three weeks after the deadline for the submission of additional dis-covery requests. Thus, ANGRY's discovery request is untimely.
Intervenor justifies its untimely request for discovery by asserting that York County's emergency plan would not be finalized until September 1, 1980 or later and thus constitutes "new information".
Insofar as a new and finalized York County Plan contains information and approved procedures which were pre-viously unavailable, it would constitute new information and good cause for a late request for discovery. Moreover, deposing Mr. Curry now should not result in a delay in this proceeding.
As to Mr. Curry's log of the July test exercise, this was presumably availably for discovery on or very shortly after July 16, 1980.
ANGRY has not indicated why it chose to wait until August 19, 1980 to seek access to that log.
Nevertheless, ANGRY's request for access to the log should not result in delay in this proceeding.
Accord-2'/
(CONTINUED FROM PREV 10US PAGE) tions they might have to it, and made preparations to attend the deposition.
Also, given the short period of time remaining before September 17, a sub-poena requiring deposition on that date would provide little time for Mr. Curry or others to file a motion to quash the subpoena pursuant to 10 CFR S 2.720(f).
In view of this, the Staff recommends that any subpoena issued by the Board provide for a reasonable date later than Sep'.-mber 17, 1980 for Mr. Curry's deposition.
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ingly, the Staff supports ANGRY's request for subpoena, provided that a more reasonable date far the deposition is set and that all parties are given notice of the time and place for the deposition.
R-III. Coyclusion Based on the foregoing, it is the Staff's position that ANGRT's request for spoena of Mr. Curry should be granted but that the date fer the requested deposition should be a reasonable time after September 17, 1980 and ANGRY should be required to give timely advance notice to all parties of the time and place for the deposition.
Respectfully submitted, gik?f "s t -
'/6seph' R. Gray y
, /Cou9 del for NRC Staf Dated at Bethesda, Maryland this 15th day of September, 1980 6
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. UNITED STATES OF'M' ERICA NUCLEAR REGULATORY COMMISSION nBEFORE THE ATOMIC SAFETY AND LICENSING BOARD, In the Matter of
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2
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METROPOLITAN EDISON COMPANY, ET AL.
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Docket-No. 50-289.
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(Restart)
(Three Mile Island. Nuclear Station,.
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Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO ANGRY'S REQL'ST FOR SUBPOENA 0F RANDY L. CURRY" in the above-captioned proceeding have been served on the following tot 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 15th day of September, 1980:
Ivan W. Smith,.Esq.*
Mr. Steven C. Sholly.
Atomic Safety and Licensing Board 304 South Parket Street U.S. Nuclear Regulatory Conmission Mechanicsb2rg, PA 17055 Washington, DC 20555 Mr. Thomas Gerusky Dr. Walter H. Jordan Bureau of Radiatian Protection
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881 W. Outer Drive Department of Er.vironmental'
' Oak-Ridge, TN 37830 Resources P.O. Box 2063
. Dr. Linda W. Little Harrisburg, PA 17120 5000 Hermitage Drive i
Raleigh, NC 27612 Mr. Marvin I. Lewis 6504 Bradford Terrace George F. Trowbridge,-Esq.
Failadelphia, PA 19149 Shaw, Pittman, Potts & Trowbridge 1800.M Street, N.W..
Metropolitan Edison Company
. Rashington, DC 20006 ATTN:
J.G. Herbein, Vice President Karin W.-Carter, Esq.
P.O. Box 542 505. Executive House Reading, PA 19603 P.O. Box 2357 Harrisburg, PA 17120 Ms. Jane Lee r
R.D. f3, Box 3521 Honorable Mark Cohen.
Etters, PA 17319
. 512 E-3 Main ~ Capital Building Harrisburg, PA 17120 Senator Allen R. Carter, Chairman Joint Legislative Committee on Walter W. Cohen, Consumer. Advocate Energy
- Department of Justice Post Office Box 142 Strawberry Square, 14th Floor
' Suite 513 Senate Gressette ruilding
..Harrisburg, PA 17127 Columbia, SC 29202
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Ilo11y'S. Keck-John Levin,'Esq.
Anti-Nuclear Group Representing PA Public Utilities Commission York Box 3265 i
245 W. Philadelphia Street
.Harrisburg, PA 17120 York,.PA-17404 f
Jordan D. Cunningham, Esq.
s John ~E.
Minnich, Chairman.
Fox, Farr and Cunningham
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D:osphin Co. Board of Ce.nissioners
" "O North 2nd Street Nuphin County Courthouse 1S.cisburg, PA 17110 Pront ':md Market Streets
-Harristurg, PA-17101 Thcedore A. Mler, Esq.
Widoff, Reager, Sclkowitz & Adler
' Robert Q Pollard P. O. B0x 1547 609 !bnticlier Street Harrisburg, PA 17105 Baltimore, MD 21218 Ms. Ellyn R. Weis,s Chauncey Kcoford Sheldon, Harron & Weiss Judith H. Jchnsrud 1725 I Street, N.W.
Environnentel Cealition on Suite 506 Nuclear Pover Washington, DC 20006 433 Orlaudo Ave nue State College, PA 16801 Atonic Safety and Lic rsing Board Panel
- Ms. Frieda Earryhill, Chairman U.S. Nuc1 car Regulatory Cc. mission Coalition for Nuclear Power Plant Washington, DC 20555 Pos tponor:en t 2610 Crsndon Drive Atomic Safety and Licensing Appeal Wilmington, DE-19808 Panel (5)*
U.S. Nuclear Regulatory Cc,.amission Ms. Karen Sheldon Washington, DC 20555 Sheldon, Harnon & Weiss 1725 I Street, N.W.
Docketing and Service Section (7)*
Suite 506 Office of the Secretary W.whington, DC 20006 U.S. Nuclear Regulatory Cn.nission
- 'ashington, DC 20555 Ms. Marjorie M. Aamodt R. '0,
- 5 Coatesville, PA -19320 Randy L. Curry,: Director York County Emergency Managenent Agency York County Court House 28 E. Market Street York, PA 17401
.A copy-has also been served on Ivan W. Smith, Esq. by hand delivery to his office this 15th day of September, 1980.
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