ML20003D814
| ML20003D814 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 03/30/1981 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8104010050 | |
| Download: ML20003D814 (10) | |
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P00R BRIBlE March 30, 1981 UNITE 9 STATES OF A'!ERIC A Ul! CLEAR REGl!LaTORY C0"l11SSION m
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BEFORE THE AT0f11C SAFETY AND LICENSING BOARD f g a s rhs
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" S. ECOLOC /, INC.
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NRC STAFF RESP 0'iSE TO LICENSEE'S 110 TION DATEP liARCH 10, 1931, REGARDING THE BOARD'S RULING TO NRC STAFF DOClli'ENT REOUESTS 1.
INTRO?UCTION On February 13, 1981, thi Board held a prehearing conference and heard fron the parties regarding their requests for discovery and obfections thereto.
By Order dated February 25, 1981, the Board rJled as folices regarding requests for discovery filed by the NRC Staf' on
!'.S. Ecolo;y, Inc., a t pp. I and 2:
The infornation called for by Staff requests 1, 2, 3,10 and the first 11 will either be identified by
!!.S. Ecology, Inc. if previously filed with the NRC or will be nade fully available for inspection by the Staff at the of fices of U.S. Ecology, Inc.
On i' arch 10,1981,11.S. Ecology, Inc. (Licensee) filed a document entitled "f'otion By U.S. Ecology for Clarification of Prehearing Conference Order and R;1ing on Discovery Requests, Objections and i'otions" ("flotion") which seeks to nodi fy the above ruling.
Specifically, the Licensee now seeks to have the Board rule that with i
regarJ to ?JRC Staff Request 2.that the Licensee is not required to produce certain documents exchancad between it and Teledyne, Inc. which n
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contained financial inforn3 tion and that with regard to NRC interrogatory 8(b) that U.S. Ecology is not required to produce settlement docrents.
For the reasons set forth below the Staff opposes t:1e instant notion.
II.
DISCUSSI0" a.
Tne Board's RJ1ing Regarding NRC Staff Document Request
!!unber 2 Is Correct and Supported by the Drebearing Cnn'erence Pecord.
With regard to the NRC Staff Request ?,-
the Licensee presents a very st-ainej interpretation of the record of the preheiring conference in an attenpt to show that the precise raling of the Board was in error.
The Licensee attempts to argue by reference to several worJs
,1_/
Motion at 5.
The type of documents containing such financial infornation that U.S. Ecology, Inc. wants to protect are those they assert are " confidential and proprietary."
In fact, the Licensee withheid docinents it said contained financial or other privileged infonnation during our discovery search of Licensee's documents at the Sheffield site conducted March 24, 1931.
As nore fully discussed below, specific NRC regulccions provide for protectinn of such docuaents provided there has been an appropriate st Ning nade consistent with the Connission's regulation regarding withholding such information.
See 10 C.F.R. G5 2.740 and 2.79h.
1/
Docu1ent Renuest No. 2 provides:
2.
Provide all documents described in request 1(a-y) above between NECO and Teledyne, Inc., and to, fron, or bet.ieen Teledyne and NECO, and between or anong any agent, attoreny, contractor, officer, or director of NECO and any such anent, attorney, contractor, officer, or director of Teledyne.
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t3 ken out of context U.?t NRC Staff counsel (itation at 3)3_/ did not have any interest in " numerical figures." A fair reading of the transcript nakes clear that this is si1 ply not true.
Whel read in contert, Staf f counsel's reference to "numrical figures" was to indicate no interest in the fig;res themselves b>>t that such figures :'ay indicate so'ethino 3_/
Tne reference was Tr.197 ta the war ds "... I'r not intereste! ia the nunerical figarcs..." when read in context nake it clear that Staff counsel fir. Reis was indicating that tne Sta'f is nM interested in the numbers the,1selves but rather what such figures right show about the condition of site.
The excerpt beloa demonstrates this point:
CMAIRf1AN GOODHOPE:
All right.
What about ??
fir. REIS:
Mr. Chairnan, can we go back to I?
I am not sure whether fir. Conner and U.S. Ecology is going to turn over, for instance, all preceding docunents in the corporation rela ting to fio. ;, for instance, requesting suspension of further praceedings on the application.
Certainly they hm labeled that 5Jsiness judgnent in their answer, but I'm not interested in the nonerical figures, but that night shod things about the condition of the site, the sand lenses that they night know exist or don't exist under the site, or whether they do exist or don' t.
CHAIR' TAN GOODHOPE:
I'm assuming that you're going tn get that letter.
TiR. REIS:
Not only the letter, but all documents that relate to it, because that is what 1 says.
It says "all matters which relate to," and the letter we have, that's a letter that was sent to us.
We have that letter, but we want the preceding docu: ents upon which the deternination was nade to send that letter, and that's what we're looking far, and that's why we have --
PDDR BRIGINA
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about the condition of the site.
That the Staff is seeking infomation ahnut the condition of the site is further reflected by the response of "r. Reis to the Chairman's cuestion asking Mr. Reis what the StFf is "looking for" with regard to Docunent Request number ? (at Tr. 203 and 209'-
MP. P.E I S :
Infomation that they night have tMd Teledyne as to what the 051ig3 tions are when T-ledyne acq; ired NECO, that they night have told
'aledyne and ongoing as to what the obligations are, th.! conditions of the site; wFy they told Teledyne tiey were sending back their license.
This all leads to discoverable evidence, and what conditions --
CiAIRtW; G00DH0PE:
Proving what?
!'R. REIS:
They night have said there was a likelihood of fissures in trench and unpty-uno.
Possibly.
I don't know.
And therefore we ought to send back our license and see if we can get rid of this obligation here.
It would be better from a corporate point of view in the fJture.
CHAIRMAN G00DH0PE:
Suppose this happened.
What would that prove?
'3.
REIS:
It would be adaissions as to the condition of the site.
It would point as to wh3t cnnditions should be put on the site, as to what they think the responsibilities are to the site, an't what they think their obligations are to naterials bJried in the site.
It would be relevant to each of those natters.
Certainly it is not overbroad.
It just asks within the corporation, within then and their parent.
It does not ga beyond and ask for infomation to anybody who might have said anything to the world.
It is linited to a specific area where we think there may be relevant naterial on the particular issues that we are litigating in this proceeding.
These excerpts nake clear that the Staff is seeking any discoverable infomation, including financial infomation the' concerns the condition of the Sheffield site or concern the need for conditions in the event of temination of the license.
4
Following the arguients of the parties with regard to the Staff's Pocument Request number 2 the Board stated (Tr. 213):O Allright you look and see if you have any such docu r.ents or documentation, and come baci: and let us knaw what you are going to do with it.
This ruling is consistent with the nodern adninistrative and legal practice which allows that pretrial discovery be "... liberally granted to enable the parties to ascertain the facts in conplex litiga. ion, refine the issaes, and prepare adequately for a nere expeditious hearing."El Furthemore, this ruling allows fulfillment of the purpose of discovery which is "... to enable each party prior to hearing to b2 cone aware of the positions of each adversary party on the various issues in controversy, and the in'ornation available to adversary parties to support those position,."5/
Furthermore, it is consistent with language of the Connission's discovery rule,10 C.r,R, h 2.74'), which provides, in part, that discovery may be had i# the i
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Tnis staterent by the Chaiman relates not just to technical I
infornation as argued by the Licensee, at 4, but to all the infomation related to the condition of the site requested by the Staff.
j 1/
Pacific Gas and Electr Company (Stanislaus Nuclear Project, Unit 1), LSF-78-20, 7 Nr 1033,1040(1978).
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Pennsylvania Power and Light Company and Allegheny Electric j
Cooperative, Inc., (Susquehanna Steam Electric Stations, Units 1 and 21, Menorandun and Order on Scheduling and Discovery "otions (August 24,1979), at 5-6 (Unpublished), affirmed, ALAB-61?,
12 NRC (Septenber 23, 1980, pp. 4-8, 24, 30).
i
- infonnation sought appears to be " reasonably calculated to lead to the discovery of adnissible evidence."
A further attempt to confuse the issue regarding what infonnation is and is not discoverable is the Licensee's reference to the Board's statecent-that it was not " going into NECO's financial stability."2/
The matter of discovery of financial information. to show the condition of the site or possibly lead to other discoverable evidence regarding the condition of the site and ultimately assist the NRC Staff make its case to demonstrate what night be appropriate conditions for license
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termination is an entirely different issue than that raised by Illinois in seeking documents for purposes of proving that the Licensee may not be capable of carrying out possible decomnissioning requi rements.El Accordingly, the Licensee's argument has no nerit.
B.
The Licensee Has Not Made the Requisite Showing to Support a Claim for a Protective Order Based on Proprietary or Confidential Informa tion Another effort to hinder the Staff's discovery request is the general assertion that any documents exchanged between Licensee and Teledyne, Inc. containing financial information would be confidential and proprietary.E/ The Commissicn's law is clear that one asserting entitlenent to a protective order based on a theory of infornation 4
asserted to be proprietary or confidential must demonstrate, inter alia, that the information in question is of a type custonarily held in i[
confidence by its originator; that there is a rational basis for having i
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Motion at 5.
8/
Motion at 5.
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Moticn at 5 and 8.
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customarily so treated tne information; and tnat the information has, in fact, been kept in confidence and is not to be found in public sources.30/ This has not been done by the Licensee for any document.
Accordingly, this argunent is without nerit.
C.
The Licensee Has Not Identified Any Information Sought by NRC Staff Request Eb That Relates to the Settlenent of Issues in this Proceeding With regard to NRC Request 8b, the Licensee asserts privilege based on settle.ent negotiations, relying on 10 C.F.R. 2.759.11/ First, there has been no indi ation that there are any documents that relate to setticment of issues in this proceeding.
Even if the Licensee is aSle to identify any documents, discussior.;
or communications with the State of Illinois, other state, or private antity which concern settlenent or negotiation, to assert any privilege the Licensee nost demonstrate that such settlenent and 10/ Virginia Electric and Power Company (North Anna Nuclear Pcwer Station, Units 1 and 2), ALAB-555, 10 NRC 23, 27 (1979).
J1/ NP.C Staff Docunent Request number 8 provides:
8.a.
Provide all documents which relate in any to actions to be taken by or for NEC0 before NECO nay
" quit," deconnission, or stabilize the site, including but not linited to environmental nonitoring, site security, gradation and stabilization of site surface, and site buffer zone.
8b.
Explain in detail any discussions or communications NEC0 has had which relate to 8(a) with the State of Illinois or any other state or pr iva te enti ty.
. negotiation information relates to the issues identified in this proceeding.22/
III.
CONCLUSION For the foregoing reasons the NRC Staff opposes the instant Motion.
Respectfully submitted,
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,t Henry J/ McGurren Counsel for NRC Staff Dated at Bethesda, Maryland, this 3001 day of March,1981.
12/ The language of 10 C.F.R. @ 2.759 as well as the Statement of Consideration make clear that the Comnission's recognition of public intertst in fair and reasonable settlements concerns the settlement and negotiation of the proceeding before this Board on "particular issues" in the proceeding before this Board and not issues that may be or may have been litigated by the parties in other proceeding. See Statement of Consideration (37 Fed. Reg. 15127, July 28,1972).
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UNITED STATES OF AMERICA hilCLEAR REGULATORY COMMISSION i-BEFORE THE AT0t1IC SAFETY AND LICENSING BOARD i
4 In the Matter of
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U.S.-ECOLO^Y, INC.
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Docket No. 27-39
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2 (Sheffield, Illinois Low-Level-
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Radioactive Uaste Disposal Site) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC ~ STAFF RESPONSE TO LICENSEE'S t'0 TION DATED MARCH 10, 1981, REGARDING THE BOARD'S RULING TO NRC STAFF DOCUMENT REQUESTS" in the above-captioned proceeding have been served on the fol-i lowing by deposit in the United States mail, first class or as indicated by an asterisk by deposit in the Nuclear Regulatory Comnission internal nail systen, this 30th day of March,1981:
Andrew C. Goodhope, Esq.
Cornelius J. Hollerich, Esq.
3320 Estelle Terrace State's Attorney Wheaton, MD 20906 Bureau County Court House Princeton, IL 61356 Jerry R. Kline*
Adninistrative Judge Kenneth G. Anspach, Esq.
U.S. Nuclear Regulatory Connission
- State of Illinois Washington, DC 20555 Environmental Control Division 188 West Randolph Street Dr. Forrest J. Renick Suite 2315 305 E. Hamilton Avenue Chicago, IL 60601 State College, PA 16801 John 'i. Cannon, Esq.
Scott Madson, Esq.
Mid-America Legal Foundation Assistant State's Attorney-Suite 2245 601 South tiain Street 20 North Wacker Drive
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Princeton, IL 61356 Chicago, IL 60606 D. J. ficRae, Esq.
Robert Russell, Esq.
217 West S^.ond Street Johnson, Martin & Russell l
Kewaunee, L 61443 10 Park Avenue West Princeton, IL 61356 f
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Troy B. Conner, Jr., Esq.
Mr. Charles F. Eason Mark J. Wetterhahn, Esq.
U.S. Ecology, Inc.
Conner, Moore & Corber Director for Government Affairs 1747 Pennsylvania Avenue, N.W.
1100 17th Street, N.W.
Suite 1050 Suite 1000 Washington, DC 20006 Uashington, DC 20036 Admiral Vincent P. de Poix Atomic Safety and Licensing Chairnan of the Board for Board Panel
- U. S. Ecology, Inc.
U.S. Nuclear Regulatory Conaission P.O. Box 7246 Washington, DC 20555 Louisville, KY 40207 Docketing and Service Section*
Atonic Safety and Licensing Office of the Secretary Appeal Board
- U.S. Nuclear Regulatory Conmission U.S. Naclear Regulatory Connission Washington, DC 20555 Washington, DC 20555 YC,, ll HenryA.McGurren Counsel for NRC Staff 9