ML20010C657
| ML20010C657 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 08/18/1981 |
| From: | Dewey L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20010C658 | List: |
| References | |
| NUDOCS 8108200281 | |
| Download: ML20010C657 (16) | |
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a, 8/18/81 UNITED STATES OF AMERICA I
NUCLEAR REGULATORY COMMISSION BEFORE THE-ATOMIC SAFETY AND LICENSING BOARD In the Matter ~of~
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U.S.. ECOLOGY, INC..
Docket No. 27-39 8'
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(Sheffield,. Illinois Low-Level Z-
- Radioactive Waste Disposal Site) )
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STAFF REPLY TO MOTION BY U.S. ECOLOGY, INC.
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f TO COMPEL NRC STAFF TO PRODUCE WITHHELD l '9MENTS f
I.
INTRODUCTION 1
By motion of July 29, 1981, U.S. Ecology, Inc. requests that the NRC ~ Staff be ompelled to produce certain documents which the Staff has contended are privileged.
In its argument regarding this request, U.S. Ecology infers that the Staff may have acted improperly by not making these documents available earlier.
Although there is legal precedent to protect the documents in
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question from discovery under the attorney-client, work product and executive privilege doctrines, based on the. fact that Licensee has seen the material, Staff is electing to voluntarily turn these documents over to the Licensee.
In so doing,!..aff is not agreeing that the docu-ments in question are relevant or necessary for a proper determination in this proceeding. Staff also specifically asserts that no impropriety existed in the withholding of the documents or in the failure to make M
them available previously to the Board or the Commission.
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II.
BACKGROUND This proceeding involves a twenty acre low-level waste disposal site in Sheffield, Illinois.I/ The site as originally licensed was filled to capacity by April 1978. On March 8, 1979, the Licensee notified the NRC that it was unilaterally terminating its license and abandoning the site.
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On March 20, 1979, the Director of the Office of Nuclear Material and Safeguards issued an immediately effective show cause order requiring the Licensee to remain on the site, monitor the site and provide security for the site. On June 6.1979 the Commission upheld the validity of the issuance of the immediately effective show cause order, and provided that a hearing be held on the matter by an Atomic Safety and Licensing Board which already had jurisdiction over other matters involving the license.U The purpose of that proceeding was to determine whether the Licensee
%uld unilaterally abandon the site and, if permitted to leave the site, to utablish under what circumstances (to include the possible imposition of site closure conditions) it would be permitted to do so.
Discovery in this proceeding was commenced by prehearing conference order of September 9, 1980.
In an order dated February 25, 1981 the
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The original license for the site was issued to California Nuclear, Inc. in 1967 for a thirteen month term.
In 1968 this license, NO.
13-10042-01, was transferred to the Nuclear Engineering Co., now U.S. Ecology, Inc. Shortly thereafter an application to extend the term of the license was submitted. This application for license renewal was not acted upon, but the licensee continued to bury waste at and operate the site pursur.nt to 5 U.S.C. 558(c) and 10 C.F.R. 2.109.
y Nuclear Engineering Co. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-79-6, 9 NRC 673, 674-675 (1979). This determination of the Commission was reaffirmed on January 22, 1980.
Id_., CLI-80-1, 11 NRC 1 (1980).
Board ruled upon the various interrogatories and document requests and objections thereto by the parties. With respect to U.S. Ecology's dis-requests to Staf 6, the Board specifically stated:
covera "US Ecology, Inc. discovery requests to_ the NRC Staff US Ecology, Inc. request 11a. and b. and 12b. and
- c. have been answered..The Staff objections to US Ecology, Inc. requests 1,2,3,4,5,6,7,8,9,10,11c.,
121., 13,14,15 are sustained since the requests are argumentative, call for legal conclusions or are irrelevant to the three issues before this Board.
The Staff, however, has agreed to make a reasonable search of pertinent Commission files and records and ask knowledgeable personnel in the Commission for information responsive to all of US Ecology, Inc. requests and make whatever information results available to counsel for US Ecology, Inc. These agreements and commitments by the Staff are found at tr. 254 et seq. The Staff objections to US Ecology, Tnc. requests is and 17 are overruled and the Staff is directed to answer these requests.
The Staff has also agreed to make whatever documents responsive to US Ecology, Ina. Other requests 1,2 and 3 available to counsei.
(tr. 286)"3f Pursuant to this Board Order, on April 24 and 29 and May 1,1981, repre-sentatives of the Licensee inspected NRC files from four different file rooms located in two NRC buildings.
No materials were removed from these files by the Staff before the licensee's representatives were allowed to examine them. During the course of the examination, it was noted that a memorandum from Dr. Michael J. Be!1 to Assistant Chief Hearing Counsel Edwin J. ReisM commenting on the legal theories of the Staff in the 3/
Prehearing Conference Order and Order Setting Time for Discovery, February 25, 1981 pp. 2-3.
4/
This memorandum is referred to in U.S. Ecology's Motion as the " Bell Memorandum" (p. 4).
For the sake of convenience, we shall also refer to this document in this manner.
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- proceeding had been included in a large group of files and was being examined by the Licensee's representative.. A claim of privilege was immediately asserted by an NRC attorney present and the document was retrieved from Licensee's representative. On July 2, 1981, Staff sent Licensee copies of those documents which Licensee had requested during its file search.
In its transmittal lotter, the Staff noted that two of the requested. documents, the Bell menorandum and a December 15, 1977 memorandum from Stephen F. Eilperin, Solicitor, to the NRC Commissioners, were not included because they were considered by Staff to be privileged documents.N In response to Staff's assertion of privilege with respect to pro-viding these two aforementioned documents, Licensee's present motion to compel alleges that Staff has waived any claim of privilege by allowing licensee to examine the documents and by not claiming the privilege in a timely fashion.
In addition to the Bell and Eilperin memoranda, licensee contends there may be other documents that have been wrcngly withheld from it. Licensee further contends with respect to the Bell memorandum that even if otherwise privileged, its production can be compc' led since its disclosure, according to licensee, is necessary for a proper decision in the proceeding and is nn', reasonably obtainable from other sources.
Finally, Licensee allege; that Staff should prod'uce the documents in question since it has failed in its obligation, independent of discovery, 5/
Letter from Henry J. McGurren, Counsel for NRC Staff to Robert M.
Rader, Esq., Conner, Moore & Corber (July 2, 1981).
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. 6 to provide the Board and the parties with newly found material containing a differing professional opinion.
III. DISCUSSION Although Staff does not concede that it has waived its claim of privilege for the Bell and Eilperin memoranda,E a detailed response to -
Licensee's factual and legal contentions is unnecessary since Staff is voluntarily making these documents available to the Licensee.
In addition to the Bell memorandum, Licensee specifically requests production of any documents which may have been removed from NRC files made available for inspection to Licensee during discovery.
It also requests that Staff counsel review its files and produce any other statement on the " possession" issue.
Regarding Licensee s concern about documents allegedly withheld during inspection of NRC files by Licensee, Staff asserts that no such documents were removed.
If Staff had done so, it would have alerted Licensee accordingly and claimed privilege with respect to the documents' contents.
To insure that Licensee is provided all materials to which it is entitled, pursuant to Licensee's request the pertinent files of the Office 6/
It might briefly be noted that several cases where it has been concluded that inadvertent disclosure has not waived the privilege include Connecticut Mutual Life v. S_hields,18 FRD 448 (SD N.Y.1955),
In Re Associated Gas and Electric, 59 F. Supp. 743 (SD N.Y.1944)..
See_ also Transamica v. I.B.M., 573 F.2d 646 (9th Cir.1978).
Regarding Licensee's contention that the privilege has been waived by being made out of time, it should be noted that when the Bell memorandum was discovered for the first time by Staff counsel in charge of the file searc uring Licensee's file search, Licensee was immediately advised nat the document was privileged. Obviously a claim' of privilege cannot be made until a document is identified.
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of the Executive Legal Director have also recently been reviewed to estab-lish whether any documents exist regarding statements on the " possession" issue.E With the exception of documents located in the files of certain attorneys,nosuchdocumentswerelocated.E The attorney files in ques-tion contain certain work product documents such as drafts of pleadings and lawyers' memoranda concerning this litigation, but Licensee clearly would not be entitled to such documents -and they are accordingly not being made available. There was also located in these files a draft memo from NMSS regarding proposed closure conditions and a draft letter to U.S.
Ecology, but both of these documents would also be privileged.E y
It should be pointed out that Staff has undergone a very large burden in reviewing the files of numerous other licensees (rather than just the files of U.S. ECOLOGY) for licensee's discovery requests. As previously noted, the file search encompassed various document rooms located in several NRC buildings, y
Several files were located in OELD's Division of Erforcement reaarding actions to compel other Licensees to clean up' sites.
Matters in these files might conceivably fall within Licensee's
" possession" issue. Licensee is invited to review these files at a mutually convenient time, but, it will, of course, not be permitted to inspect privileged materials contained therein.
It should be emphasized, however, that Staff does not view these files as a Commission position on the " possession" issue.
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Staff's method of document production with respect to these docu-ments will follow Licensee's procedures. During Staff's file search at Licensee's offices, except for referring to certain withheld documents as " financial data," Licensee did not desig-a nate which documents it was withholding as privileged or explain f
the basis for the privilege.
Following motions to compel pro-5 d: ction of these documents by the Staff and the State of Illinois, this Licensing Board ruled that at the next prehearing cc.4erence Licensee should produce all such allegedly privileged mater 1als for the Board's review.
(See June 22, 1981 Licensing Board Order,
- p. 6.)
Pursuant to this procedure set forth by the Board, the Staff is also willing to make the Staff's above referred to I
privileged documents available for M camera inspect. ion by the j
Board at the next prehearing conference, if the Board deems this appropriate.
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Although Staff has complied witn License:'s requests regarding the providing of additional materials, we nevertheless believe that it is necessary at this time to specifically address some of the items in Licensee's Brief which suggested that the Bell memorandum might consti-tute " relevant and material new information" and a " differing professional opinion" ahich should have been brought to the attention of the Commission and/or the Licensing Board upon its discovery, and Licensee's suggestion that the NRC Staff may have been guilty of a lack of candor in arguments before this Board.
A.
THE STAFF DID NOT FAIL IN ANY DUTY TO INFORM THE BOARD OF NEW INFORMATION OR OF A DIFFERING OPINION Licensee contends that Staff has failed to satisfy its obligat'..n to notify the Licensing Board of relevant and material t.ms information in the form of the Bell memorandum. As a basis for this contention it relies upon a notice from the Acting Director of Nuclear Reactor Regula-tion in NRR Office Letter No.19 (July 6,1978), which it asserts is also applicable to NMSS.
Staff agrees that it has a duty of informing Licensing Boards, the Appeal Panel, and the Commission, as appropriate, of new relevant and material information.3S/ However, the NRR procedures cited by Licensee do not support its contentions with respect to the Bell memorandum.
~~~10/Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2),
ALAB-143, 6 AEC 623, 625-6 (1973); Georgia Power Co. ( Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-292, 2 NRC 404, 408 (1975); see also Virginia Electric Power Co. (North Anna Power Station, Units 1 and 2), CLI-76-22, 4 NRC 481, 491-492, n. 11 (1976); Consolidated Edison Co. (Indian Point Station, Units 1, 2 and 3), CLI-77-2, 5 NRC 13,15T1977).
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Revision No. 1, December 8, 1980 to NRR Office Letter No. 19 [ attached hereto] indicates that NRR developed its procedures so that significant new information of health, safety or environmental concerns that arise after publication of Staff review documents can be brought to the attention of the Commission's adjudicatory panels. This NRR procedure parallels procedures in the Office of Nuclear Material Safety and Safe-guards (NMSS) where the Bell memorandum originated.
NMSS procedure, as set forth in WM Policy 8. October 18, 1979 to Waste Management Staff
[ attached hereto], also appears to be directed toward technical and scientificinformation.E Tne Bell temorandum of February 19,'1979 comments upon a proposed legal position to be taken in a projected Staff brieftotheLicensingBoard.E It doe,s not contain new scientific or environmental information learned after the publication of Staff.-eview documents.
Plainly this memorandum, containing only a differing view with respect to a proposed Staff legal position by a non-attorney, is not within the class of information that Staff should bring to the Board' attention under the aforementioned Board notification procedures.
Furthennore, the Board notification procedure does not apply to differences of opinion.
Indeed Revision 1 to NRR Office Letter No.19 specifically states that Board notifications regarding differing opinions y See, for example, NRR Office Letter No.19, Revision 1, Procedure at 2, which only refers to safety and environmental issues as topics of concern.- And WM Policy 8, Memo to Waste Management Staff at 2, indicates that Staff technical reports (the FES, EIA, and SER) are the subject matters upon which differing opinions will be based.
i 12/ This brief, "NRC Staff's F.eply to Applicant's Motion to Dismiss the Proceeding," was filed on March 20, 1979.
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should follow procedures specified in the NRC Manual Chapter 4125, governing differing professional opinions, discussed infra.E/
It should also be stressed that Board notification matters are recommended by NRR or NMSS through their management when those offices believe the significance of a particular matter warrants such notification or by the originator on his own initiative if his management disagrees.EI No decision was made by Dr. Bell or his management to notify the Board of Dr. Bell's difference of opinion with Staff counsel.
For these reasons no duty was breached in not supplying the Licensing Board or the Commission with Dr. Bell's comments on a proposed Staff reply brief to the Licensing Board.
Similarly, the Bell memorandum did not constitute a differing pro-fessional opinion which should have been brought to the Board's attention.
A review of the NRC Manual Chapter 4125 and its Appendix, cited by the Licensee, clearly establishes that the memorandum does not fall within either the letter or spirit of the relevant Commission policy on differing professional opinions. This Manual clearly establishes that not every professional disagreement constituter a differing professional opinion:
A normal differing view, developed in the free and open discussion of work matters, becomes a differing professional _ opinion cnly when the originator brings it to NRC management attention
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in accordance with these procedures.
(emphasis in original)M/
H/ Revision 1, ibid at 4.
14/ Revision 1, ibid at 4.
H/ NRC Manual Chapter 4125, Appendix p.1.
Thus to change a nomal professionf al disagreement into a formal differing professional opinion, the originator of the differing view must bring the matter to NRC management's attention under the provided procedures.
The Bell memorandum was prepared by a non-lawyer commenting upon a proposed legal position to be taken in a brief to be filed by Staff counsel.
It was prepared before the Staff position in the "NRC Staff Reply To Applicant's Motion To Dismiss The Proceeding," of March 20, 1979, was completed. Prior to that filing, Dr. Bell's views were taken into account. Dr. Bell never pursued the matter to the point where it could even arguably have been construed as a differing professional opinion.E For these reasons, no duty was breached by the Staff by failing to alert the Board of the existence of the Bell memorandum in regard to differing professional opinions.
B.
THE STAFF SHOWED NO LACK OF CAND0R Licensee contends that a certain statement made by Staff counsel during the Prehearing Conference of February 13, 1981 misrepresented to the Licensing Board that the Commission has not had a past." historical policy" regarding the " possession"E of buried low-level radioactive
-16/ The procedure for expressing a differing professional opinion expressly calls for the matter to be brought to the attention of the originator's immediate supervisor as a differing professional opinion.
Mr. Bell followed neither that procedure nor the alterna-tive "Open Door" procedures set forth in the Appendix to the Manual Chapter.
17/ The issue of " possession" in this case involves the question of whether radioacitve waste that has been buried is still in the possession of and the responsibility of the Licensee.
waste.E According to Licensee, the Bell memorandum establishes that the Commission policy in the past varied significantly from the positions presently endcr:cd by Staff counsel.E L bensee further contends that Staff counsel should have been aware of the Bell memorandum when he advised that no such policy existed.
Licensee's assertions do i ot comport with the facts.
Staff counsel would have had no reason to interpret this memorandum as representing Commission policy since it would have only represented an opinion of a Staff member as to what he thought NRC policy might be. Moreover, the views of a member of the Staff on what position the Staff should take in a proceeding do not bind the Staff to take such a position. See Nuc}e v Engineering Co. (Sheffield, Low Level Waste Disposal Site), CLI 1 NRC 1, 3-6 (1980).
The discussion at the prehearing conference can only be unie' stood in light of the discovery request upon which the transcript discussions are based. This request, interrogatory 14(a) of Licensee's October 10, 18/ It should be noted that Licensee in its brief at p.11 alleges that Staff counsel misrepresented at the hearing that there are no documents available regarding this subject. Contrary to this assertion, Staff counsel does not specifically refer in his State-ment to the unavailability of such documents.
See February 10, 1980 Transcript at 271-278.
-19/ Without attemptino at this t:me to interpret the meaning of the Bell memorandum, Staff does not concede that the contents of this memorandum, as interpreted by the Licensee, is correct. As pointed out in "NRC Staff Reply to Applicant's Motion to Dismiss" (p.11),
the Commission has never indicated any intent to release buried material from regulation, control or licensino.
See also Staff's March 21, 1979 letter to the Board that enclo:.s Commission docu-ments AEC 180/12 of December 3,1959 and AEC-R 8/10 of November 28, 1960 endorsing Staff's contentions.
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1980 disc ~overy requust to Staff, was propounded by the Licensee as follows:
Is it the position of the Commission that wastes from licensed operations and licensed-exempt operations at Oak Ridge, the National Reactor Testing Station, Idaho and other sites are not " possessed" by the United States or any other legal entity within the meaning of the Atomic Energy Act of 1954, as amended. (Emphasis added.)
Licensee s interrogatory 14(a) is speculative and would be most diffi-5 cult to answer under any circumstances. As pointed out by Staff counsel during his discussion with the Licensing Board, the Licensee's request for admission concerning ".... Is it the position of the Commission... " asked, in essence, for the formulation of Commission policy that could not be supplied by Staff.E! Moreover, the Licensing Board itself, when ruling upon interrogatory, requests by the parties stated that many of Licensee's interrogaties (to include 14) were
" argumentative, call for legal conclusions or are irrelevant" to the pro-ceeding.E! This interrogatory and the transcript section in question, wher taken as a whole, indicate that the discussion was directed at ascertaining if the Commission itself (as opposed to the Staff) had a policy on whether buried waste was " possessed."2_2/ The dialogue in the M/ February 10, 1980 transcript at 272.
H/ February _ 25, 1981 Licensing Board Order, p.2.
,2_2[.The Staff has consistently taken the position that discovery 2
requests which inquire about Commission positions relate to views expressed by the Commission itself. See for example, the Staff response to Request for Admission 16(a), contained in its March 16, 1981 response to the Licensee's discovery requests at page 2.
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transcript also demonstrates Staff counsel's candor when he frankly-indicated that the question of possession was a difficult legal one.
MR. REIS: One of the things we have looked into, for instance, in our research and got nowhere, is in essence of when a lessee buries material on the land of a lessor, who possesses the material buried in the ground. - And the answer is not simple.
CHAIRMAN G00DH0PE: Well, t, hat's what he wants to know, has the Commission ever taken a position on this question of possession and on ei'.ner of these sites, either of these --
MR. REIS:
It asks us to formulate a position, and the question is, is the position of the Commission, which would have to go to the Commission, that sort of question.
Not has the NRC ever taken a position.
CHAIRMAN G00DH0PE: He says it is the position of the Commission that wastes are not possessed.
I don't know if it is or not.
MR. REIS:
I don't know whether we've ever taken any sort of position on that, and we'd have to look into it.
I have no idea. And frankly, its a question of law.
MR. CONNER: No.
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MR. REIS: And what they have said. An interpretation of what the Commission has said in the past, I really think its of doubtful relevance and really is a matter of law.E 2
(Emphasis added)
In summary, as reflected by t:.. above, there is no basis for the claim that the Staff was not candid in dealing with the Licensing Board.
It is clear that what Staff counsel was referring to during the discussion' was that he did not believe the Commission itself had issued some type of interpretation or opinion on this issue and even then, 2_3/ February 10, 1980 Transcript at 272-273.
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- acccording to Staff counsel, "an interpretation on what the Commission has said in the past, I really think its of doubtful relevance and really is a matter of law."E
, CONCLUSION For the foregoing reasons, Licensee's allegations are in error.
Staff has not committed any misrepresentation, nor has it wrongfully withheld any documents in contravention of Commission policy with respect to newly dist cvered information or differing professional opinions.
Staff is making the Bell and Eilperin memoranda available to Licensee. Staff has also reviewed legal counsel's files for requested documents and, to the extent not privileged, will make them available as well.
Respectfully submitted M4&
Lee Scott Dewey Counsel for NRC Staff Dated at Bethesda, Maryland this 18th day of August,1981.
B M at 273.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
U.S. ECOLOGY, INC.
Docket No. 27-39
)
(Sheffield Illinois Low-Level
)
Radioactive Waste Disposal Site) )
CERTIFICATE OF SERVICE I hereby certify that copies of STAFF REPLY TO MOTION BY U.S. EC0 LOGY, INC. TO COMPEL NRC STAFF TO PRODUCE WITHHELD 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 systeu, this 18th day of August, 1981.
Andrew C. Goodhope, Esq.
James R. May, Esq.
Administrative Judge State's Attorney 3320 Estelle Terrace Bureau County Court House Wheaton, MD 20906 Princeton, IL 61356 Jerry R. Kline*
Administrative Judge Kenneth G. Anspach, Esq.
U.S. Nuclear Regulatory Commission State of Illinois Washington, DC 20555 Environmental Control Division 188 West Randolph Street Dr. Forrest J. Remick Suite 2315 Administrative Judge Chicago, IL 60601 305 E. Hamilton Avenue 5 tate College, PA 16801 John M. Cannon, Esq.
Daniel Trucy, Esq.
Mid-America Legal Foundation Assistant State's Attorney Suite 2245 601 South Main Street 20 North Wacker Drive Princeton, IL 61356 Chicago, IL 60606 D. J. McRae, Esq.
Robert Russell, Esq.
'217 West Second Street Johnson, Martin & Russell
^
Kewaunee, IL 61443 10 Park Avenue West Princeton, IL 61356
4 Troy E. Conner, Jr., Esq.
. Mr. Charles F. Eason liark J. Wetterhahn, Esq.
U.S. Ecology, Inc.
Conner, Moore & Corber Director-for Governnent Affairs 1747 Pennsylvania Avenue, N.W.-
1100 17th Street, N.W.
Suite 1050 Suite 1000 Washington, DC 2000G Washington, DC 20036 Admiral Vincent P. de Poix Atomic Safety and Licensing Chairman of the Board for Board Panel
- U. S. Ecology, Inc.
U.S. Nuclear Regulatory Commission P.O. Box 7246 Washington, DC 20555 Louisville, KY 40207 Docketing and Service Section*
Atomic Safety and Licensing Office of the Secretary Appeal Board
- U.S. Nuclear Regulatory Commission-U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington,- DC - 20555
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_A,Ce tru --
Lee Scott Dewey Ccunsel for NRC bi ff i
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