ML20027A448
| ML20027A448 | |
| Person / Time | |
|---|---|
| Site: | Fermi  |
| Issue date: | 11/09/1978 |
| From: | Mcgurren H NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| NUDOCS 7812050059 | |
| Download: ML20027A448 (11) | |
Text
11/09/78 EC PUBLIC DOCUENT ROOM t t*"11 UNITED STATES OF AMERICA k,
NUCLEAR REGULATORY COM.NiISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BO ED
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In the Matter of
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Detroit Edison Company
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(Enrico Fermi Atomic Power Plant
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Unit 2)
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NRC STAFF ANSWER TO APPLICANTS' MOTION FOR LEAVE ~
TO COMMENCE LIMITED FORMAL DISCOVERY AND ALTER-NATIVE REQUEST FOR WAIVER OF 10 CFR 6 2.740 ~
On October 20, 1978, Eugene B. Thomas, Jr., Esquire, on behalf.of the Detroit Edison Company and Northern Michigan Electric Cooperative, Inc. and Wolverine Electric Cooperative, Inc. (collectively, " Applicants") served by mail a motion requesting that this Board grant leave to the Applicants to commence limited 1/
formal discovery against Mr. Dan Drake and CEE.-
For the reasons discussed below, the NRC Staff opposes Applicants' motion.
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THE COMMISSION REGULATION ON DISCOVERY,10 CFR 5 2.740, PROHI3ITS FORMAL DISCOVERY PRIOR TO THE SPECIAL PREHEARING CONFERENCE By this motion, the Applicants are requested that this Board authorize the Appli-2/
cants to commence formal discovery to " verify Dan Drake's interest in this 1/
Attached to this motion is a copy of the " Amended Petition of Martha G.
Drake" and a copy of the " Affidavit In Support of Applicants' Motion for Leave to Commence Limited Discovery Against Petitioners Drake and CEE and Alternative Request For Waiver".
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The NRC Staff's answer addresses the question of when formal discovery may be commenc.d under the Commission's Regulatien. Informal (FCOTNOTE CONTINUED ON NEXT PAGE)
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, proceeding" and to determine the facts concerning CEE's ' interest' in requesting an operating license hearing."i This 'r muest is clearly prohibited by the Commis-sion's regulation governing discovery. (10 CFR S 2.740). The applicable lan-guage of 10 CFR S 2.740 states two limitations: (1) that no discovery shall commence prior to the 10 CFR 5 2.751a special prehearing conference and (2) that discovery shall relate only to the issues identified by the presiding officer following the special prehearing conference. The applicable language of 10 CFR S 2.740 provides:
in a proceeding on an application for... an operating license... discovery shall begin only after the prehearing conterence oro-vided for in 5 2.751a and shall relate only to those. matters in controversy which have been identified by the Commission or the presiding officer in the prehearing order entered at the concir f that prehearing conference. [empt
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The Applicants' request violates both limitations. They seek discovery that commences before the prehearing conference provided for in 5 2.751a and they seek discovery on matters not relevant to the " matters in controversy".
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(FOOTNOTE CONTINUED FROM FREVIOUS PAGE) 2/
discovery between parties and/or petitioners may be engaged in at any time. See Statement of Considerations for 10 CFR 5 2.740 (37 F.R.15127 (July 28,1972)) which provides, in part:
(dliscovery will not be permitted until the matters in controversy have been oreliminarily identified. Acoli-cants are. however. encouraged to make available to 1
interested cersons any documents relied on in the aoplication before that time. Once the matters in contro-versy have been identified, discovery will be limited to those matters follcwing the initial prehearing cor.ference...
(emphasis added).
. The Applicants read 10 CFR 5 2.740 differently than the Staff. They assert that the 10 CFR S 2.740 limitation on discovery prior to the special prehearing con-ference applies only to discovery on " matters in controversy" (Motion, at 7).
Therefore, they argue that the discovery they seek regarding standing is permitted by the Commission rules. In support of this reading of 10 CFR 5 2.740, they cite Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station) LBP-77-13, 5 NRC 489 (1977) nd Fed. R. Civ. P. 30(a),
the Federal Rule governing when depositions may be taken.
First, nothing in the Barnwell case supports Applicants' interpretation of the Commission's discovery rule. Instead this case notes that 10 CFR S 2.740 is
" patterned after and parallels" Fed. R. Civ. P 26 and not 30(a). Further, the Licensing Board in the Barnwell case was concerned with limiting discovery based on its relevance to the identified issues and not with expanding dis-covery as urged by the Applicants. The Board stated: 3/
In considering the question of relevance under Rule 26 of the Federal Rules of Civil Procedure, the Federal courts have long recognized that discovery crocess must be keot within workable bounds on a crocer and i
logical basis for the determination of the relevance of that which is sought to be discovered. When the infor-i mation sought is irrelevant to the proceeding, the Federal i
courts will not hesitate to sustain objections to such inter-l rogatories (citations omittec' and emphasis added).
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l Barnwell, suora, at 492.
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Applicants' analogy to Fed. R. Civ. P. rule 30(a), the Federal Rule indicating 4/
when depositions may be taken, is completely misplaced.- As noted above,
$ 2.740 is patterned after Fed. R. Civ. P. rule 20 nd not rule 30(a). Having expressly selected rule 26 rather than rule 30(a), it is clear that the Commis-5/
sion did not intend for the unselected Federal Rule to control its proceeding.-
In fact, the Commission chose to prohibit discovery prior to the special pre-hearing conference rather than adopt the following language of Fed. R. Civ.
P. 30(a).
(a)
When Depositions May Se Taken. After commencment of the action, any party may take the testimony of any persons, including a party, by deposition upon oral examination.
1/ As Applicants note, under Fed. R. Civ. P. 30(a), a defendant may take a plaintiff's deposition at any time after commencement of the action. Even if the analogy to this rule could be made, it is unlikely that a successful argument could be made that there is a " commence-ment of the action" at the petition's stage of an operating license pro-ceeding where by virture of section 189a of the Atomic Energy Act, there is no mandatory hearing requirement, i.e. the license may be issued without a hearing in the absence of a proper request therefor.
5_/ See, In the Matter of General Electric Comoany (Vallecitos Nuclear Enter - General rlectric lest deactor), AdLe. Memorandum and Order, dated October 24,1978, at 7 and 8. There the Licensing Board rejected a similar analog;r to FRCP 26(b)(4)(B) stating at p. 8:
While it is true that some of the Commission's discovery rules "are strikingly parallel to the analogous provisions of the Federal Rules of Civil Procedure," Commonwealth Edison Comeany, suora, that fact hardly prov des a reasonable basis for inferring a Commission intention '
to have discovery in its proceedings governed by the Federal Rules in instances such as this, where no analoccus orovi-sion is to be found in the rules excressly adooted. indeed, we think the contrary inference is the bette: one: having expressly selected some, but not all, of the discovery pro-visions set out in the Federal Rules, the Commission did not intend for the unselected Federal Rules to control its proceedings.
. Finally, Applicants correctly note that the Commission in Wisconsin Electric Power Co. (Koshkoning Nuclear Plant, Units 1 and 2), CLI-74-45, 8 AEC 028, 929 (1974) and the Appeal Board in Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, Recon. denied, ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973) have recognized that discovery is not permissible to aid petitioners in formulation of contentions.
Applicants argue that these cases stand only for the proposition that there can be no discovery on the merits, that is, the issues in controversy, until those issues are determined by the Licensing Board at a Special Prehearing Conference.
Applicants further argue that one can not read these cases as prohibiting all formal discovery, such as discovery which is related to a petitioner's standing, prior to the special prehearing conference. In essence, Applicants are arguing that the limitations on discovery set out in 10 CFR $ 2.740 should be read together so that the limitations are that there shall be no discovery prior to the special prehearing conference on issues in controversy. However, the language of 10 CFR S 2.740 is very clear and provides 2 separate limitations:
(a) discovery shall begin only after the special prehearing conference and (2) discovery shall relate only to matters in controversy. There is no distinction made in 10 CFR 5 2.740 as to what discovery shall begin only after the special prehearing conference. Accordingly, the clear meaning of the regulation is that no discevery, including discovery relating to standing, can begin prior to the special prehearing conference.
The NRC Staff would note that none of the discussion above would limit or prevent the Licensing Board from inquiring at the special prehearing con-ference into the basis asserted by Petitioners for standing in this proceeding.
Further, there is no prohibition against any party opposing a petition for leave to intervene in accordance with 10 CFR S 2.714 on the ground that no adequate basis for standing has been asserted.
II THE BOARD IS NOT EM?OWERED BY 10 CFR S 2.718 TO ORDER THE DISCOVERY REQUESTED BY APPLICANTS The Licensing Board pursuant to 10 CFR 5 2.718 is granted broad powers to meet its function of conducting a fair and impartial hearing. These powers include the power to " order depositions to be taken" (10 CFR S 2.718(d)).
However, this pcwer can only be used consistent with the other regulation.t especially when, as here, there is a specific regulation establishing the time for and scope of discovery. (See 5 2.718(1) providing that other actions may i
l be taken by the presiding officer consistent with the other regulations in l
Part 2).
As noted above, we believe the Commission has clearly indicated in the language of the regulation guiding discovery that discovery must not commence prior to the special prehearing ocnference. If the Commission had intended that the Board exercise its power regarding depositions before the special prehearing conference, it would have clearly so stated.6/
The Commission did make such special provision for discovery after the 10 CFR S 2.'752 Prehearing Conference. Section 2.740(e) provides in part:
... no discovery shall be had after the beginning of the prehearing conference held pursuant to 5 2.752 except upon leave of the presiding officer upon good cause shown. (emphasis added)
Surely if the Commission had intended to give the licensing boards power to order depositions prior to the special prehearing conference, a provision similar to that above would have been included in the regulation.
For the above reasons, the NRC Staff opposes the Applicants' discovery request.
III THE APPLICANTS HAVE NOT ALLEGED THE NECESSARY "SPECIAL CIRCUMSTANCES" TO WARRANT AN EXCEPTION OR WAIVER TO THE COhL\\iISSION'S REGULATION PROHIBITING DISCOVERY PRIOR TO THE SPECIAL PREHEARING CONFERENCE The NRC Staff believes that Applicants' request for discovery is a clear challenge to the Commission's regulation guiding discovery (10 CFR S 2.740) 6/
It is clear from the Statement of Considerations accompanying the rule on discovery that the Commission considered the question cf formal discovery prior to identification of issues and concluded that only informal discovery was permitted. See Statement of Considerations (37 F.R.15127, 7/28/72 and footnote 2, sucra).
8-The Applicant, however, pursuant to the Commission's regulation 10 CFR 5 2.758 argues that he be granted an exception or waiver to the Commission's discovery regulation and that this question be certified to the Commission.
Section 2.758 of 10 CFR Part 2 allows an exception or waiver upon "[t]he sole ground... that special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule or regulation...
would not serve the purposes for which the rule or regulation was adooted" (emphasis added]. The Staff believes that the facts both in the motion itself and the attached affidavit amount to nothing more than an assertion of a generic concern with the scope of discovery and do not relate to the subject matter of this particular proceeding. For this reason, the Staff believes that the appro-priate remedy is not 10 CFR 5 2.758 but rather, as noted in the Potomac Electric Power Comoany Case (Douglas Point Nuclear Generating Station, Units 1 and 2),
ALAB-218, 8 NRC 79, at 89 (1974), with the Commission itself by petitioning for rule making pursuant to 10 CFR 55 2.800-07. In the above case, a petitioner sought to raise contentions that would challenge the correctness of the environ-mental values assigned by the Commission in Table S-3. In the instant proceeding, the Applicants seeks to challenge the correctness of Commission's decision to limit the scope of discovery.
Although the information sought here by the Applicants, concerning whether or not petitioners Drake and CEE have standing, are facts unique to the instant m
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proceeding, they are not "special circumstances" demonstrating why the Com-mission's discovery rule is not applic-ble to this "particular" proceeding.
Since the motion and attached affidavit, considered together, do not make a prima facie showing that application of 1J CFR 5 2.740 would not serve the purpose intended, the Licensing Board should not certify the question to the Commission or consider the matter further.
CONCLUSION The Applicants' request for leave of the Licensing Board to commence formal discovery prior to the special prehearing conference is prohibited by 10 CFR 5 2.740 and the Applicants have not made the required prima facie showing that application of 10 CFR 5 2.740 in this proceeding would not serve the purpose intended. The motion should be' denied.
Respectfully submitted,
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'[/': :' + A Henry'J.icGurren Counsel for NRC Staff Dated at Bethesda, Maryland l
this 9th day of November,1978 l
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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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Detroit Edison Company
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Docket No. 50-341
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(Enrico Fermi Atomic Power Plant,
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Unit 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER TO APPLICANTS' MOTION FOR LEAVE TO COMMENCE LIMITED FORMAL DISCOVERY AND ALTERNATIVE REQUEST FOR WAIVER OF 10 CFR 5 2.740" 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 Regula-tory Commission's internal mail system, this 9th day of November,1978:
Charles Bechhoefer, Esq., Chairman
- Dr. Robert G. Asperger Atomic Safety and Licensing Board 12 Dennis Court Panel Midland, Michigan 48640 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Mr. David Hiller University of Michigan Law School Dr. David R. Schink Hutchins Hall Department of Oceanography Ann Arbor, Michigan 48109 Texas A & M University College Station, Texas 77840 Atomic Safety and Licensing Board Panel
- Mr. Frederick J. Shon*
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D. C.
20555 Panel U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D. C. 20555 Appeal Panel (5)=
U.S. Nuclear Regulatory Ocmmission Washington, D. C. 20555
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Eugene B. Thomas, Jr., Esq.
Docketing and Service Section (3)*
LeBoeuf, Lamb, Leiby & MacRae Office of the Secretary 1757 N Street, N. W.
U.S. Nuclear Regulatory Commission Washington, D. C. 20036 Washington, D. C.
20555 Peter A. Marquardt, Esq.
The Detroit Edison Company 2000 Second Avenue Detroit, Michigan 48226 Mrs. Martha Drake 230 Fairview
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p Petoskey, Michigan 49770 I
Iferiry 7. McGurren CounselMr NRC Staff
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