ML20024D247
| ML20024D247 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 08/01/1983 |
| From: | Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8308030381 | |
| Download: ML20024D247 (5) | |
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6 08/01/83 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CINCINNATI GAS AND ELECTRIC C0f tPANY, _ET _AL.
Docket No. 50-358
)
(Wm. H. Zimer Nuclear Power
)
Station, Unit 1)
)
NRC STAFF'S ANSWER OPPOSING MVPP'S MOTION FOR PROTECTIVE ORDER AND MOTION FOR DISCOVERY On July 12, 1983, Miami Valley Power Project (MVPP) filed a " Motion For Protective Order" (Motion). By this Motion, MVPP requests a protec-tive order to shield the identity of individuals providing certain affidavits which MVPP submitted as attachments to its reply brief. MVPP states that these affidavits were obtained only upt.n express condition of confidentiality and the affidavits have been submitted with names and identifying characteristics deleted. Motion at 1-2.
The Staff is not aware of efforts at this time to require MVPP to disclose the identity of the individuals. Accordingly, the Staff submits the Motion is premature and should be denied.
On July 12, 1983, MVPP also filed a reply brief in which it requests authority to undertake discovery if necessary to further justify the existence of genuine unresolved issues in the eight proposed contentions.
Reply Brief at 2, 33-34. As discussed below, such discovery is not permitted by Comission regulations and caselaw. Accordingly, that Motion also should be denied.
DESIGNATED ORIGI!!AL 8308030381 830901
/6 DR ADOCK 05000 gg3 gQ_
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The Staff notes that MVPP filed a similar motion on July 8, 1982.
During a subsequent conference call among the Licensing Board and parties, MVPP clarified its motion to indicate that it sought to submit certain affidavits (with the identity of the affiants removed) in order to pro-vide further bases for the contentions. Memorandum and Order (Memoral-izing Conference Call of July 21,1982), Slip op. at 2-3 (July 21, 1982).
The Licensing Board granted the motion on the understanding that the affidavits would be accepted as furnishing further bases for the conten-tions only and that the granting of the motion in no way precluded other parties from seeking to learn the identities of the affiants through the discovery process.
Id. at 3.
The current status of the proceeding before the Licensing Board is that MVPP has filed a motion to reopen the record, which together with related responses of the other parties and filings of Amicus briefs are pending before the Board. At this time, there can be no discovery against MVPP (or any other party) since there has been no determination that the record will be reopened or that any of the proposed contentions will be l
admitted as a matter in controversy. See, 10 C.F.R. 5 2.740(b)(1).
l Accordingly, any request for the Board to issue protective order is premature since no party can seek to learn the identities of the affiants through the discovery process.
Similarly, MVPP's request for discovery to further identify the
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existence of genuine unresolved issues or contentions is not permitted l
by the Comission's regulations. As noted above, 10 C.F.R. % 2.740(b)(1) provides that discovery does not begin until a contention or matter in controversy has been admitted by the Board.
It has been long established
in Commission caselaw that a petitioner is not entitled to discovery to assist him in framing the contentions. Nor'thern'StatesPowerCo.(Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 192, reconsid. den., ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973);
see also, Detroit Edison Company, et al. (Enrico Fenni Atomic Power Plant, Unit 2),LBP-78-37,8NRC575,579-581(1978). The only ground provided by MVPP for its request is to cite 10 C.F.R. 5 2.749(c). That is the Commission's regulations relating to summary disposition and MVPP reliance on that regulation appears misplaced.
For these reasons, MVPP's Motion to conduct discovery should be denied.
Conclusion For the reasons discussed above, MVPP's motions for a protective order and to conduct discovery should be denied.
Respectfully submitted, Charles A. Barth Counsel for NRC Staff Dated at Bethesda, Maryland this 1st day of August, 1983 a
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s UNITED STATES OF AMERICA NUCLEAR REGULATORY C&tilSSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CINCINNATI GAS AND ELECTRIC Docket No. 50-358 COMPANY, et al.
(Wm. H. Zimer Nuclear Power Station, Unit No. 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER OPPOSING MVPP'S MOTION FOR PROTECTIVE ORDER AND MOTION FOR DISCOVERY" 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 Com-mission's internal mail system, this 1st day of August,1983:
John H. Frye, III, Chairman
- Timothy S. Hogan, Jr., Chaiman Administrative Judge Board of Comissioners Atomic Safety and Licensing Board 50 Market Street U.S. Nuclear Regulatory Comission Clermont County i
Batavia, Ohio 45103 Dr. Frank F. Hooper Administrative Judge William J. Moran, Esq.
School of Natural Resources General Counsel
,,j University of Michigan Cincinnati Gas & Electric Co.
Ann Arbor, Michigan 48109 P.O. Box 960 t
Cincinnati, OH 45201 Dr. M. Stanley Livingston tl Administrative Judge Andrew B. Dennison, Esq.
1005 Calle Largo 200 Main Street ll Santa Fe, New Mexico 87501 Batavia, OH 45103 ii Troy B. Conner, Esq.
Mr. Samuel H. Porter Conner & Wetterhahn Porter, Wright, Morris & Arthur 1747 Pennsylvania Avenue, N.W.
37 West Broad Street i
Washington..DC 20006 Columbus, OH 43215 John D. Woliver Esqc-Deborah Webb, Esq.
Legal Aid Society 7967 Alexandria Pike P.O. Box V47 Alexandria, KY 41001 tli 550 Kilgore Street j
Batavia. Ohio 45103
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Lawrence R. Fisse, Esq.
Lynne Bernabei Esq.
Assistant Prosecuting Attorney Government Accountability 462 Main Street Project /IPS Batavia, Ohio 45103 1901 Q Street, N.W.
Washington, DC 20009 W. Peter Heile, Esq.
Mr. Robert F. Warnick Assistant City Solicitor U.S.N.R.C., Region III Room 214, City Hall 799 Roosevelt Road Cincinnati, Ohio 45220 Glen Ellyn, IL 60137 Atomic Safety and Licensing Board Panel
- U.S. Nuclear Regulatory Comission Washington, DC 20555
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Atomic Safety and Licensing Appeal Board
- U.S. Nuclear Regulatory Comission Washington, DC 20555 Docketing and Service Section*
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Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 David Martin, Esq.
Capit;al Building Room 18 Frankfort, KY 40601 Brian Cassidy, Esq.
Regional Counsel FEliA R gion I J. W. McCormack P0CH Boston, Massachusetts 02109 Vernon Adler FEMA 500 C Street, S. W.
Washington, DC 20472
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~5tuart A. Treby Assistant Chief H aring Counsel
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