ML19343B681
| ML19343B681 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 12/05/1980 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8012300046 | |
| Download: ML19343B681 (14) | |
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a NUCLEAR REGULATORY COMMISSION
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In the Matter of
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NUCLEAR ENGINEERING COMPANY, INC.
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Docket No. 27-39
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(Sheffield, Illinois Low-Level
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Radioactive Waste Disposal Site)
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NRC STAFF RESPONSE TO NUCLEAR ENGINEERING COMPANY, INC.
MOTION TO COMPEL THE NRC STAFF TO ANSWER NEC0'S REQUESTS FOR ADMISSIONS AND INTERROGATORIES AND TO COMPEL PRODUCTION OF DOCUMENTS BACKGROUND On October 10, 1980, Nuclear Engineering Company, Inc. ("NEC0") served its Requests for Admissions, Interrogatories and Requests for Production of Documents to the NRC Staff. On October 23, 1980, the NRC Staff filed its objections to NEC0's discovery request, and on November 3,1980, it filed its answers.
On November 15, 1980, NECO filed its Motion to Compel the NRC Staff to Answer NECO's Requests for Admissions and Interrogatories and to Compel Production of Documents (" Motion").
By a pleading of Octoter 23, 1980, the NRC Staff objected to and sought a protective order as to many of the Licensee's discovery requests 1/
e Th Staff's objections centered on Licensee's propounding of Reouests for Admissions on matters of questioned relevancy, matters of law, matters of opinion, and matters that could not be admitted or denied without
-- _ /The legal requirements for admissions and their application to NEC0's re-1 quest for admissions are set forth in detail in " Objections to NRC Staff to Recjuests for Admissions, Interrogatories and Requests for the Produc-tion of Documents of the Nuclear Engineering Company," ("0bjections") dated October 23, 1980.
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qualification. As we indicated at pages 1 to 5 of that pleading, a Request for Admissions cannot be used in that manner. Requests for Admissions may only be used to establish relevant facts, not to search for evidence.
Each objec-tion to a Request for Admissions demonstrated that the Request was infirm on several grounds (e.o., relevancy, lack of specificity, seeking law, and opinion); each of which provided an independent and separate reason why the Request was improper. Other discovery sought was premised on these Requests, and thus was also infirm.
Moreover, the Licensee through its Requests for Admissions and the other dis-covery seeks to cloud the issues with past Commission actions which are not the subject of this proceeding.
For the reasons set out in the NRC Staff's Objections of October 23, 1980, and for the reasons set out herein, the Licensee's instant motion, which seeks to compel the Staff to answer the Requests for Admissions and other discovery premised thereon, on matters of fact and opinion regarding " literally hundreds and thousands" 2/of other licensing actions, should be denied.
1.
NEC0's Requests for Admissions are Inappropriate l
a.
The Information sought by NECO's Requests for Admissions is Irrelevant.
NEC0 seeks Staff responses to its Requests for Admissions numbered 1(a),
l 2(a),3(a),4(a),5(a),6(a),7(a),8(a),9(a),10(a),13(a),14(a),15(a)
/ Licensee's Motion to Compel the NRC Staff to Answer NEC0's Requests, 2
at 2.
i 4
. 16(a) and 17(a).
(Motion,at3.) However, each of these requests for admissions ignore and are in direct conflict with the NRC Staff requirement that a Request for Admission be on "the truth of any specified relevant matter of fact," and that such Requests for Admissions may be refused when "the matters involved are... irrelevant" (10 C.F.R. 52.742). As the Staff has previously briefed, such requests may not be used to obtain ad-missions on mixed questions of law and fact, or of any matter whose ad-mission or denial require qualification or explanation. See Objections at 4-5.
Each of the requested admissions is not relevant.
Requests 1(a) and 2(a) seek admissions about " hundreds and thousands of material licenses includina waste disposal licenses" (Emphasis added).
Request 3(a) seeks admissions about conditions for other NRC actions.- I Request 4(a) concerns the obligations of Illinois to the NRC, a matter not in issue in this proceeding.
Requests 5(a)., 6(a), 7(a), 8(a), 9(a) and 10(a) all concern the application of NRC regulation to the fact situations of other licensing activities.
Request 13(a) concerns actions of Kentucky and New York.
Request 14(a) involves questions of law concerning what materials are possersed at sites other than the Sheffield site.
Request 15(a) concerns a question of law with regard to the tenn " possession" as it is applied to licensed operations and license-exempt operations at West Valley, New York, Barnwell, South Carolina, Maxey Flats, Kentucky and "other sites." Requests 16(a) and l
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M Moreover, due to the fact that each site and the conditions of each site are different, a flat admission or denial about conditions for such other sites cannot be made without qualification.
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17(a) concern actions that involve burial at sea. The use of these requests attempts to circumvent the clear requirement that Requests for
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Admissions only be used as proof of agreedly " relevant" facts.
It may not be used to search for relevant evidence. NECO tries to direct attention away from this requirement by arguing that the Staff is not allowing NECO to make or the Staff to disagree with its legal argument.
The basis of the Staff's argument that the above requests should not be responded to is that these requests fail to satisfy the NRC requirements for Requests for Admissions. Among these requirements is that "a request for an admission be 'on truth of any specified relevant matter of fact' and that such requests for admissions may be objected to when 'the matters in-volved are irrelevant.'"
(10 C.F.R. 52.742. )
In fact, the two cases cited by NEC0 for the proposition concerning refusal of discovery on grounds of opposition to another party's legal argument do not concern Requests for Admissions at all, but rather interrogatories.S Ais evidences a confusion on the part of NEC0 regarding the difference between an interrogatory as a discovery tool and the use of a Reauest for Admission.
4/ Motion at pp. 3 and 4.
NECO cites United States-v. Article of Drug, etc., 43 F.R.D.181,189 (D. Del.1967) and United States v. Two Hundred Sixteen Bottlers More or Less, etc., 36 F.R.D. 695-700-701 (E.D.N.Y.
1965).
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- M the Staff notes in its Objection (at pp. 4 and 5):
The cases under Rule 36 [the Federal Rule that the NRC Rule was patterned after], as it existed at the beginning of 1970, recognized that the purpose of requests for admissions under that Rule was to expedite trial by obtaining agreement on essentially undisputed relevant facts.
Burns v. Phillips, 50 F.R.D.188 (N.D. Ga. 1970).
Thus a request for admissions could not be used to discover facts that could lead to the discovery of relevant evidence (as is permissible under other Rules of discovery), but could be used solely to reach agreement on facts which were themselves relevant.
United States v. Watchmakers of Switzerland Information Center, Inc., 25 F.R.D. 203, 204 (S.D.N.Y.
1960); Waider v. Chicago, R. I. & P.R. Co.,10 F.R.D.
376. 378 (S.D. Iowa 1950); Rice v. United Air lines, 10 F.R.D.161,162 (N.D. Ohio 1950)T The request must only seek the admission of generally undisputed matters of fact, and not ask for admissions on conclusions of law or as to mixed questions of law and fact.
In Driver
- v. Gindy Manufacturina Corp., 24 F.R.D. 473, 475 (E.D.
Pa. 1959), the court stated:
Although there is a split in authorities as -
to whether a party may be required to admit or deny facts which are not within his knowledge, it is well established that Rule 36 can be employed only in respect to questions of fact and then only when the facts are not in dispute.
If a real l
dispute as to the facts does exist, Rule 36 ma not be used. The Rule cannot be employed as a substitute for discovery or for the eliciting of evidence at trial.
See Demmert i
- v. Demmert, D.C.D. Alaska 1953, 115 F. Supp.
430; Alaska Credit Bureau of Juneau v.
Stevenson, 1954,15 F.R.D. 409,14 Alaska 531; In re Reinauer Oil Transport Inc.,
D.C.D. Mass. 1956,19 F.R.D. 5; People of State of California v. The Jules Fribourg, j
D.C.N.D. Cal. 1955, 19 F.R.D. 432. See also 4 Moore, Par. 36.02. Many of the Requests for Admission by Burroughs, such as No. 18, are Requests for Admission not only of aisputed facts but also require conclusions of mixed facts and law. Burroughs' Requests for Admission constitute a misuse of Rule 36.
Valid and invalid requests are so intemingled that the court will not attempt to sort the good from the bad.
[ Footnote omitted.]
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. See also Fidelity Trust Co. v. Village of Stickney,129 F.2d 506, 511 (7th Cir.1942).
Similarly, requests for admissions cannot deal with matters of opinion or matters that cannot be admitted or denied without explanation.
Kasar v. Miller Printing Machine Co., 36 F.R.D. 200, 203_(N.D. Pa.1964); Waider v. Chicago, R.I.&P.R. Co.,
supra; Reinauer Oil Transport Co. v. Boston Fuel Transportation, Inc., 19 F.R.D. 5 (D. Mass. 1956).
NEC0 attempts through this improper use of Requests for Admissions to dis-cover the existence of some NRC policy or " established practice" regarding termination of licenses. The practice or policy of the NRC with regard to license termination is to determine on the bases of each site and conditions of the site what is required in order to assure public health and safety.S at Wh may be appropriate for one site in terms of assuring public health and safety may be wholly inadequate at another site.
Further, as the Staff noted in its Objections (at p. 5) "... past Commission or Staff actions on other licenses or as to other licensees are not relevant to issues of whether NEC0 may unilaterally terminate its license, and appropriate conditions, if any, to be imposed upon the termination of NEC0's license."
In essence, the policy of the NRC Staff in its review and determination of a license termination is to assure that such termination is accomplished consistent with the public health and safety. 6_/ What is satisfactory to assure public health depends on the facts of each individual case.
SCf. Power Reactor Development Coro. v. Electrical Workers Union, 367
[S. 396, 402 (1961); Walker Trucking Co., 1 AEC 668 (1961).
6
-- _/ Ibid.
NEC0 further argues that a failure to permit it such discovery will result in a decision which departs from past practices and policy. As we noted above, the NRC policy; if it is to be called that, regarding license tenninations is to assure protection of the "public health and safety." This is done by a review of the site and conditions at each site. The Staff will as oly this policy to the NEC0 license.
However, for the sake of argument, if there were a departure from some " policy" as we noted in our Objections (at e
- p. 5) such a departure would be permissible. 7/
In fact, as Professor Davis has noted:
[w] hen a court decides that law it has previously declared is unsound and ought not be followed, neither estoppel nor stare decises nor any other doctrine ought to prevent the court from using its own judgment as to whether the new law it declares ought to be applied retroactively to the case before the courts... _G/
As Professor Davis notes "the reasons for deviation from the stare decises" by administrative agencies "are at least as strong."S One case cited by Professor Davis particularly pertinent to NEC0's argument is Optical Workers' l
Union v. NLRB.EThe court stated there:
We hold... that the Board has authority to adopt and reverse policy, either in the form of individual decision or as rule-making for the future, in any manner reasonably calculated to carry out its statutory duties....
l
-- We noted that the Supreme Court in Federal Communications Commission v.
WOKO. Inc., 329 U.S. 223, 227 (1946), emphasized that regulatory agencies may embark on new courses and regulate their licensees in ways that have not been tried before.
- _/ avis, Administrative Law Treatise, at 526.
8 D
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--- Id., a t 527.
10/-
- 227 F.2d 687 (5th Cir.1955), cert, denied 351 U.S. 963 (1956).
Furthermore, there is no sound reason why standards cannot be applied retroactively.R/
b.
NEC0's Reauests for Admissions call for Questions of Law and Opinions.
Relevancy is not the only reason that NEC0's Requests for Admissions are improper. As noted in the Staff's Objections (at p. 3) the purpose of Requests for Admissions is not to serve as a substitute for trial, but to serve as a means of establishing essentially uncontroverted facts.
Corollaries evolving from this rule include (a) that the request not involve essentially questions of law and (b) that the Request not deal with opinion.
Related to these two corollaries are the corollaries that the Request for A mission must deal d
with factual matters and that the request must be simple enough to be denied or admitted without qualification.EI NECO's Requests for Admissions violates these corollaries. Licensee at page 8 of its Motion seeks to make much of the Staff's inability to simply answer Request for Admission 1(a) of whether prior license terminations l
l were "without any affirmative action by the. Commission" because the, Request l
seeks an opinion on a mixed question of law and fact. No simple answer can E/Id. Other reasons cited by Professor Davis for agency deviation fron iirecedent and stare decises include:
" changes in conditions, objectives, attitudes, understanding, personnel, programs, pressures, political climate, as well as, even in absence of changes in such factors, sheer j
inability to avoid inconsistencies in dealing with complex subject l
matter" (at p. 528). See also Greyhound Corp. v. ICC, 551 F.2d 414, 416 (D.C. Cir. 1977) where the court noted that an agency is free to make reasoned changes in policies.
E/ otion at pp. 9 and 10.
M E The -law cited at pp.12-16 of NEC0's Motion is relevant to interrogatories and is not relevant to Requests for Admissions.
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be given to this Request.
It must first be detemined whether such Com-mission actions as asking licensees to verify that they have properly transferred controlled materials, inspections resulting in negative con-clusions and recordkeeping entries are legally " affirmative actions by theCommission."b Similarly, Request 3(a) call; for opinion in judging whether conditions imposed or not imposed are the same or similar.
Further, this request could not be affirmed or denied without explanation of how conditions im-posed on other licenses relate to NECO's situation.
Request 4(a) cannot be answered with a simple yes or no answer as is clained by NECO. E It calls for a conclusion of law regarding the obligations of illinois.
Licensee talks at page 14 of its Motion of a binding "comit-ment" made by a State pursuant to 10 C.F.R. 520.302(b). One may look in j
vain for the word " commitment" in that regulation.
It is not there. More-over, this request cannot be affirmed or denied without qualification describing such terms as " commitment" and "long-tem custodial responsi-
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bilities."
l E otion at pp. 9 and 10.
M E The Licensee's citation to the definition of the term " agency action" in the Administrative Procedure Act, 5 U.S.C. !i551(13) as being equivalent to its phrase " affirmative action by the Comission" is falacious.
" Agency action" in that section of the Administrative Procedure Act is defined as " including the whole or a part of an agency order, license, sanction, relief or the equivalent or denial thereof, or failure to act."
Request for Admission 1(a) makes no sense with this definition substi-tuted for the phrase " affirmative action by the Commission." Without defining or legally qualifying the terms in the Request, the Request cannot be admitted or denied.
Requests 5(a), 6(a), 7(a), 8(a), 9(a),10(a), and 12(a) clearly involve questions of law and are not, as asserted by NEC0, calling for an admission offact.E To request as NEC0 does an admission whether or not a particular regulation has "in fact" ever been invoked with regard to a renewal of a license "so as to attempt to extend the effective date of a license against the will of a licensee desiring to terminate the license,"E/ clearly calls for conclusions of law and opinion.
Each of the admissions similarly calls tor legal conclusions and opinions.EI Moreover, each Request even goes beyond seeking conclusions of law and opinion to the point of asking the i
Staff to speculai? why a particular regulation may or may not have been invo bd in past actions. E# Even this task is made more difficult by the use of and need for legal interpretation of terms used in the Requests for Admissions. 0/
Requests 13(a),14(a),15(a),16(a) and 17(a) similarly call for conclusions of law and opinions.
Request 13(a) calls for a legal conclusion on what is
" compatible" with the Atomic Energy Act.
Request 14(a) involves a question r
of law and opinion involving what materials are " possessed" under the Atomic E/ otion at p. 10 M
E/ ee Requests 5(a). See also Requests 6(a) and 10(a).
S E/ equest 9(a) calls for an opinion and legal conclusion regarding an R
agreement between NECO and the State of Illinois.
E/ee7(a)whichrequestsanadmissionwhethercertainNRCrequirements S
have ever been invoked "to attempt to preclude a licensee from surren-dering its license in whole or in part.
E/ mission 8(a), for example, uses legal terms such as " required,"
Ad "volutary termination," and " cessation of activities."
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Energy Act and who might possess them.
Request 15(a) involves opinion and questions of law related to the meaning of the terms " possessed" under the Atnmic Energy Act and " disposed of by burial."
Requests 16(a) and 17(a) call for conclusions of law and opinion regarding what may be " possessed" under the Atomic Energy Act and the meaning of
" disposed."
NEC0's confusion of the interrogatory discovery tool with a " Request for Admission" is again evidenced on pages 12 and 13 of its motion when in arguing that adnissions may call for legal conclusions it notes that "tne courts have held that interrogatories requiring legal opinions as answers" (enphasis added) may be permitted in certain situations.
2.
NECO's Interrogatories and Requests for Production of Documents are on thei,r Face Dependent on the Responses to the Requests for Admissions NEC0's interrogatories and document requests are predicated on its Requests for Admissions. Since the Requests for Admissions are improper and cannot be answered, the interrogatories and requests for documents cannot be answered.
Further, each request for documents is a request for,in essence,"all documents which discuss or relate" to the matter. Such a Request is not proper and should be denied.b As we noted in the Staff's Objections (at p. 7) compliance S ee Illinois Power Co. (Clinton Nuclear Station, Units 1 and 2), ALAB-340, S
4 NRC 27, 34 (1976).
I a
_ 12 with such requests would in essence require the review of each paper in the 1
thousands of materials licensing files of the Commission to ascertain whether it would satisfy the request.
3.
NRC Staff Responses to Interrogatory 12(b) and Document,Reouest 11(c) l are Appropriate.
NECO's Interrogatory 12(b) is obviously dependent on Request for Admission 12(a). Accordingly, the Staff's failure to answer this interrogatory at this time is appropriate.
Furthermore, the Staff's failure to answer NECO's Request 11(c) for "... all documents which discuss possession of material licensed under the Atomic Energy Act of 1954, as amended, 42 U.S.C 52011, as a basis for regulatory or otherwise exercising authority over the person or entity having such possession" is proper. b i
CONCLUSION I
l For the reasons set forth above, the Staff urges that the instant motion be denied.
4 Respectfully submitted, s ):
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Henry J. McGurren Counsel for NRC Staff Dated at Bethesda, Maryland this 5th day of December,1980.
2_2/ ee Illinois Power Co., supra, n. 21.
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UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION j
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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NUCLEAR ENGINEERING COMPANY, INC.
Docket No. 27-39 4
(Sheffield, Illinois Low-Level Radioactive Waste Disposal Site)
)
1 CERTIFICATE OF SERVICE i
I hereby certify that copies of "NRC STAFF RESPONSE TO NUCLEAR ENGINEERING j
COMPANY, INC. MOTION TO COMPEL THE NRC STAFF TO ANSWER NEC0'S REQUESTS FOR ADMISSIONS AND INTERROGATORIES AND TO COMPEL PRODUCTION OF DOCUMENTS" 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, through deposit in the Nuclear Regulatory Commission's internal mail system, 4
this 5th day of December, 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 5999 Pernitage Drive Susan N. Sekuler, Esq.
Raleich, 3C 27612 Mary Jo Murray, 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 l
Scott Madson, Esq.
John M. Cannon, Esq.
Assistant State's Attorney Mid-America Legal FoundaH on 601 South Main Street.
Suite 2245 Princeton, Illinois 61356 20 North Wacker Drive Chicago, Illinois 60606 l
D. J. McRae, Esq.
217 West Second Street Kewaunee, Illinois 61443 t
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Docketing and Service Section*
Atomic Safety and Licensing Office of the Secretary Board Panel
- U.S. Nuclear Regulatory Conmission U.S. Nuclear Regulatory Comnission Washington, D. C.
20555 Washington, D. C.
20555 Atoric Safety and Licensing Troy B. Conner, Jr., Esq.
Appeal Panel *
!' ark J. Wetterhahn, Esq.
U.S. Nuclear Regulatory Commission Conner, Moore & Corber Washington, D. C.
20555 1747 Pennsylvania Avenue, N.W.
Suite 1050 Pobert Russell, Esq.
t.'ashington, D. C.
20006 Johnson, Martin & Russell 10 Park Avenue West Mr. Charles F. Eason Princeton, Illinois 61356 Nuclear Engineering Coginy Director for Govainunt Ai.oirs Admiral Vincent T. de Poix 110017th Street, ii.W.
Chair.an of the Board Suite 1000 for Nuclear Er.gineering Co.
1.'a s hi ng ton, D. C. 20036 P.O. Box 7246 Louisville, KY 40207
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'A Henryj'&. McGurren Counsel for NRC Staff
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