ML19350E601
| ML19350E601 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 06/19/1981 |
| From: | Lessy R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8106230327 | |
| Download: ML19350E601 (8) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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UNION ELECTRIC COMPANY Docket Nos. STN 50-483
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STN 50-486 (Callaway Plant, Units 1 and 2)
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RESPONSE OF THE NRC STAFF TO INTERVENOR JOHN G. REED'S
" MOTION TO COMPEL DISCOVERY" 0F FEDERAL EMERGENCY MANAGEMENT AGENCY" I.
INTRODUCTION By motion dated May 30, 1981, John G. Reed, an Intervenor in this proceeding, filed a motion to compel discovery directed to Mr. O. R. Ruby, Acting Regional Director, Region VII of the Federal Emergency Management Agency (" FEMA"). Mr. Reed had previously requested and received from an agency of the State of Missouri a copy of the
" Interim Missouri Nuclear Accident Plan."1/ By letter dated May 15, 1981, Mr. Reed wrote to Mr. D. R. Ruby, requesting recommended changes by the FEMA Regional Assistance Committee (which is chaired by a mem-ber of the FEMA Region IV Staff) to the state plan.2.f Mr. Reed was I
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See letter from W. R. Ruby to John G. Reed (April 28, 1981).
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See letter of J. G. Reed to Mr. D. R. Ruby and Director, FEMA (May 15, 1981).
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. 4 infonned by the FEMA region that offsite planning for Callaway had not been ccepleted,E and that any changes being made to the plan would be made at the state level, where Mr. Reed was referred.
Mr. Reed was also advised that when FEMA Region VII received a revised copy of the plan, Mr. Reed would be centacted.O Dissatisfied with this response, Mr. Reed filed the instant motion to compel FEMA to infonn Mr. Reed of the suggested revisions which the FEMA region may have made to the state plan, as well as any future FEMA-suggested changes. Since FEMA is not a party to this proceeding, Mr. Reed bases his right to file such a motion upon the assertion that the " Memorandum of Understanding Between NRC and FEMA Relating to Radiological Emergency Planning and Preparedness" dated November 4,1980E"... makes FEMA party to the licensing process" (Motion to Compel, p.1).
For the reasons set forth below,the5taffbelievesMr. Reed'smotionshouldbesummarilydenied.
II. DISCUSSION The document which Mr. Reed has been provided is Missouri's " Interim Nuclear Accident Plan." This State document has been loaned to FEMA y
See letter from D. R. Ruby to J. G. Reed (April 28,1981).
y See letter from D. K. Ruby to J. G. Reed (May 22,1981).
y See 45 Fed._ Reg. 82713-82715 (December 15,1980).
. Region IV for technical assistance purposes.
FEMA provides this technical assistance by reviewing the State plan by a Regional Assistance Ccmmittee ("RAC"), which is chaired by a member of the FEMA Region IV staff. The RAC, pursuant to its review, reviews the plan and recommends changes in pen and ink fonn to the State. The State, however, is free to accept or reject these suggestions, as FEMA has no authority to, and does not promulgate a State plan.
It is these suggestions to the State that Mr. Reed is seeking in his motion to compel.
Contrary to Mr. Reed's unsupported assertion, FEMA is not a party to this proceeding.
10 C.F.R. 9 50.47 provides, inter alia, that the NRC will base its findings on a revic-w of FEMA's findings and determinations as to whether State and local emergency plans are adequate and capable of being implemented and on the NRC assessment as to whether the Applicant's onsite emergency plans are adequate and capable of being implemented.
10C.F.R.950.47(a)(2).5/ In other NRC proceedings, FEMA has functioned as a witness, not a party, and provided testimony in areas within its expertise and jurisdiction.2/ Other than presenting " findings" on off-site emergency planning and testimony regarding specific contentions, FEMA plays no formal role i.1 the hearing process.
For example, FEMA does 6/
The regulation further provides that in an NRC licensing proceeding, "a FEMA finding" will constitute a rebuttable presumption on a question of adequacy.
10 C.F.R. 9 50.47(a)(2).
7/
See Executive Orders 12127 of March 4,1979(44 Fed. Reg. 19367) and IIT48 of July 20, 1979 (44 Fed. Reg. 43239).
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. i not sponsor contantions, nor advocate license conditions, nor formally either oppose or support the license application. Moreover, there is nothing in the aforementioned Memorandum of Understanding between FEMA and the NRC that is inconsistent with the view that FEMA is not a party.
to an NRC proceeding, and Mr. Reed has pointed to no such provision. As stated in the Memorandum, its purpose was to establish "a framework of cooperation" between the two agencies:
The memorandum is responsive to the President's decision of December 7,1979, that FEMA will take the lead in offsite planning and response, his request that NRC assist FEMA in carrying out its role, and the NRC's continuing statutory responsibility for the radiological health and safety of the public." Memorandum of Understanding, 9 I, 45 Fed. Reg. 82713.
Finally, there is no procedure in the Commission's Rules of Practice, 10 C.F.R. Part 2, which allows for the addition of a new party to a proceeding other than through the formal intervention process contained in 10 C.F.R. 5 2.714, which requires the filing of a petition to intervene.
Inasmuch as FEMA is not a party to the Callaway proceeding, it is not subject to inter-party discovery in the form of requests for document productionortheserviceofinterrogatories.S/ Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683, 689-90 (1979); 10 C.F.R ll 2.740, 2.740a, 2.740b. Similarly, if FEMA is not p/
In some NRC proceedings, where interrogatories direction to the Staff sought information relating to offsite emergency planning, the Staff has - in an effort to expedite the proceeding - requested and obtained from FEMA the required information.
subject to inter-party document requests as part of tne discovery process, a motion to compel for failure to provide requested documents is similarly invalid. See 10 C.F.R. 5 2.740(f).
Notwithstanding the above, Mr. Reed is not totally without recourse, as there are a number of other formal avenuesE/ open to Mr. Reed.
For example, Mr. Reed could raise the matter of RAC conments on the state plan during his cross-examination of appropriate witnesses at the forthcoming hearing. Mr. Reed can also internally appeal Mr. Ruby's letter of April 28, 1981, to the Director, Office of Public Affairs, of FEMA.1E/
Mr. Reed can also file a Freedom of Information Act Request upon FEMA, in accordance with the provisions of 5 U.S.C. 9 552 eti seg.
In addition, since the RAC suggestions, if any, are being recommended to the State of Missouri, Mr. Reed can also seek the information from the Missouri Department of Public Safety. Finally, in accordance with the provisions of 10 C.F.R. 99 2.740(f)(3) and 2.720, Mr. Reed can apply to the Board for the issuance of a subpoena
+.o FEMA as a non-party, " requiring the attendance and testimony of witnesses or the production of evidence."
10 C.F.R. 5 2.720(a). With regard to this final avenue, a third-party
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There are also informal avenues open to Mr. Reed.
For example, the motion to compel indicates that FEMA has met with Mr. Reed to discuss changes to the Missouri State plan.
JO/ See the final sentence of Mr. Ruby's letter, supra, note 1.
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subpoena, it should be recalled that Mr. Reed is seeking a copy of all past, present, and future pen or ink changes made by the RAC to the draft state plan.E Thus, the question would arise as to whether the imposition of such a requirement upon a non-party would be an administrative burden that would interfere with FEMA's function. That question has also been discussed in Stanislaus, supra, and the relevant conclusion of law appears to be that third _ party subpoenas will not be modified or refused 'unless compliance threatens to unduly disrupt or seriously hinder normal operations..."
9 NRC at 695. This is the question that this Board will have to decide if Mr. Reed seeks a third party subpoena of the FEMA pen and ink changes.
III. CONCLUSION For the reasons discussed above, the Staff believes that Mr. Reed's motion to compel discovery of FEMA should be dismissed.
Respectfully submitted, Roy P. Lessy Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 19th day of June,1981.
1 1_1/ See letter of J. G. Reed to W. R. Brady (April 30,1981).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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UNION ELECTRIC COMPANY Docket Nos. STN 50-483 (Callaway Plant, Units I and 2) l STN 50-486 CERTIFICATE OF SERVICE "I herebv cbrtify that copies of "D.ESPONSE OF TPE 'IRC STAFF TO INTERVENOR JOHN G. REED' " MOTION TO COMPEL DISCOVERY" 0F FEDERAL EMERGENCY MANAGE-MENT AGENCY', in the above-captioned proceedino have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, throuah deoosit in the Nuclear Reaulatory Connission's internal nail systen, this 19th day of June,1981:
James P. Gleason, Esq., Chairman Barbara Shull Atomic Safety and Licensing Board Lenore Loeb 513 Gilmoure Drive League of Women Voters of. Missouri q>
Silver Spring, MD 20901 2138 Woodson Road St. Louis, to 63114 Mr._Glenn 0. Bright
- Atomic Safety and Licensing Board Mar.iorie Reilly U.S. Nuclear Regulatory Conmission Energy Chairman of the League of Washington, DC 20555 Wo.,en Voters of Univ. City, MO 7065 Pershing Avenue Dr. Jerry R. Kline*
University City, M0 63130 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Gerald Charnoff, Esq.
Washington, DC 20555 Thomas A. Baxter, Esq.
Shaw, Pittman, Potts & Trowbridge Mr. John G. Reed 1800 M Street, N.W.
Rt. 1 Washington, DC 20036 Kingdom City, M0 65262 Dan I. Rolef Treva J. Hearne President, Board of Directors Assistant Gercral Counsel for the Coalition for the Environment, Missouri Public Service Commission St. Louis Region P.O. Box 360 6267 Delmar Boulevard Jefferson City, M0 65101 University City, M0 63130 e
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2-Donald Bollinger, Member Rose levering, Member Missourians for Safe Energy 7370a Dale Avenue Crawdad Alliance 6267 Delmar Boulevard University City, MO 63130 St. Louis, M0 63117 Mr. Fred Luckey Presiding Judge, fiontgomery County Rural Route Rhineland, MO 66069 Mayor Howard Steffen Chamois,10 65024 Professor William H. Miller Mr. Earl Brown Missouri fonsas Sectica, School District Superintendent American th. clear Society P.O. Box 9 D3partment of Nuclear Engineering Kingdom City, M0 65262 10 W Engineering Building University of Missouri Mr. Samuel J. Birk Columbia, MO 65211 R.R. #1, Box 243 Morrisor, MO 65061 Mr. Harold Lottman Presiding Judge, Dasconade County Robert G. Wright Rt. 1 Associate Judge, Easter,n District Owensville, MO 65066 County Court, Callaway County, Missouri Eric A. Eisen, Esq.
Route #1 Birch, Horton, Bittner and Monroe Fulton, MO 65251 Suite 1100 1140 Connecticut Avenue, N.W.
Atonic Safety and Licensing Washington, L:
20036 Board Panel
- U.S. Nuclear Regulatory Commission Docketing and Service Section*
Washington, DC 20555 Office of the Secretary U.S. Nuclear Regulatory Commission Atomic Safety and Licer. sing Washington, DC 20555 Appeal Board
- U.S. Nuclear Regulatory Commission Washington, De 20555 Xenneth M. Chackes Chackes and Hoare Attorney for Joint Intervenors h[
314 N. Broadway j \\N St. Louis, Missouri 63102 Roy P. Lessy ()
Deouty Assistant Chief Hearina Counsel O _- -
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