ML20028G397
| ML20028G397 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/07/1983 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | UNION OF CONCERNED SCIENTISTS |
| References | |
| NUDOCS 8302090258 | |
| Download: ML20028G397 (4) | |
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DOCKETED tcMC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 13 FEB -8 N0:25 ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
p; Mhs5Nhi E P A!:CH Gary J.
Edles, Chairman Dr. John H.
Buck Dr. Reginald L. Gotchy ssWED FEB 81983
)
In the Matter of
)
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Docket No. 50-289 METROPOLITAN EDISON COMPANY,
)
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(Design Phase)
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(Three Mile Island Nuclear
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Station, Unit No. 1)
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)
ORDER February 7, 1983 On February 2, 1983, UCS filed a motion requesting that we direct the licensee and the staff to present its witnesses for deposition in advant e of the February 16, 1983, due date for the filing of testimony in the reopened phase of this case.
At our direction, the Secretary to the Appeal Board telephoned the parties on February 2 and (1) directed UCS to submit supplemental information concerning whether the deposition was necessary to prepare direct testimony or to prepare cross-examination, and (2) directed the licensee and the staff to file answers to UCS' motion, as supplemented.
UCS' supplement was to be in our hands no later than close of business Thursday, February 3, 1983, and the answers were to be in our hands no later than 9 a.m.
Monday, February 7, 1983.
8302090258 830207 PDR ADOCK 05000289 G
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2 UCS indicates that it has not yet decided whether to file direct testimony.
One purpose of the depositions, it asserts, is to enable it to make that determination.
UCS argues that pre-hearing discovery has been used successfully throughout the restart proceeding.
The ataff opposes UCS' motion, arguing that it is highly unlikely that its testimony on the areas apparently of most concern to the Appeal Board will be completed until shortly before the February 16th filing date.
Thus, allowing UCS to take the depositions of the Staff's witnesses on those areas prior to February 16th would serve no useful purpose and could well jeopardize the quality and completeness of the Staff's testimony. _1/
The licensee also opposes UCS' request, arguing that.UCS has not demonstrated a need for discovery, that discovery would be disruptive to the licensee's preparation for hearing, and that UCS' request is simply an alternative mechanica to obtain information that this board refused to authorize in response to UCS' earlier request for a modification of schedule.
We shall deny the motion for pre-hearing discovery.
The purpose of the reopened hearing is to receive evidence in response to Board questions.
We have permitted UCS, although not required them, to submit direct testimony if they wish to put forth an affirmative position on the
_1/
NRC Staff's Answer to UCS Motion, February 4, 1983, p.
2.
4 3
questions we asked.
Most, if not all, of the issues to be addressed in the reopened hearing have been considered earlier and the basic positions of the staff and the licensee are well known to UCS.
In these circumst'ances, we believe that, in contrast to earlier stages of this case, UCS can prepare its direct testimony, if any, without discovery.
The staff has indicated that it will voluntarily accommodate UCS' request to take the depositions of staff witnesses on matters within the scope of the testimony once the testimony is filed but before the hearing begins.
Such an approach should meet UCS' need to prepare for cross-examination, We strongly urge the licensee to make its witnesses available on the same basis in order to assist the development of the record.
We assume that the parties will work together to assure that such discovery is conducted on a convenient basis.
We emphasize, moreover, that our decision today is without prejudice to the filing of a motion by UCS at the close of the hearing to supplement its testimony upon a showing of good cause and need, to address genuine surprises.
In reaching our decision, we are not insensitive to two important purposes of discovery, i.e.,
to eliminate the element of surprise and increase the parties' ability to prepare for hearing and assist in the development of a complete record for decisional purposes.
See Pennsylvania
o l
4 Power and Light Co. and Allegheny Cooperative, Inc.,
(Susquehanna Steam Electric Station, Units 1 & 2), ALAB-613, 12 NRC 317, 321-22 (1980).
The likelihood of surprise is substantially reduced, however, where a hearing is reopened primarily to clarify issues already litigated.
The short time available before direct testimony must be prepared necessarily increases the disruptive effect of discovery on the preparation of testimony by the two parties that have been ordered by us to file testimony.
We are also satisfied that the informal arrangements that the staff has proposed (and which we urge the licensee to provide), coupled with the opportunity for rebuttal to address genuine surprises, will fully protect UCS' ability to participate meaningfully in the reopened proceeding.
It is so ORDERED.
FOR THE APPEAL BOARD l
l 0.. R 4 & ~ d C. J(pn Sh'oemaker Secretary to the Appeal Board I
.