ML20069D589
| ML20069D589 | |
| Person / Time | |
|---|---|
| Site: | Armed Forces Radiobiology Research Institute |
| Issue date: | 09/15/1982 |
| From: | Rickard D ARMED FORCES RADIOBIOLOGICAL RESEARCH INSTITUTE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8209210318 | |
| Download: ML20069D589 (8) | |
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DOCKETED USHRC UNITED STATES OF AMERICA N2 $63 20 21:09 NUCLEAR REGULATORY COMMISSION CFFICE OF SECREnja BEFORE THE ATOMIC SAFETY AND LICENSING BOARD h k cf In the Matter of ARMED FORCES RADIOBIOLOGY Docket No. 50-170 RESEARCH INSTITUTE (Renewal of Facility (TRIGA-Type Research Reactor) License No. R-84)
LICENSEE' S RESPONSE TO INTERVENOR'S MOTION FOR A PROTECTIVE ORDER Intervenor CNRS's Motion for a Protective Order seeks the Board's permission to avoid, for the present, answering 59 sub-parts of Licensee's First Interrogatories which were filed nearly one year ago on September 30, 1981.1 Intervenor would have the Board exercise its authority under 10 C.F.R. 2.740(c) by entering an order which will serve to delay even further the ultimate termination of these now protracted proceedings.
The Commission's rules of practice (10 C.F.R. 2.740(c))
provide a mechanism by which the presiding officer can enter an order which will protect a party "... from annoyance, embarrassment, oppression, or undue burden or expense ...
in connection with the discovery phase of license proceedings. Entry of such an order must be predicated on the showing of good cause by the party requesting it.
1/ In addition, CNRS proposes that it be permitted to continue into the second round of discovery and that the Licensee be given an additional round of discovery regarding the 59 sub-parts listed in the proposed order.
820 9 210 3)g G DSO3
The Licensee submits that the Intervenor has failed to demonstrate that providing unevasive and complete responses to Licensee's First Interrogatories is in some manner annoying, embarrassing, oppressive, or unduly burdensome or expensive. Indeed, the Intervenor has neglected to indicate which of the regulatory bases it is relying upon.
Instead, the Intervenor asserts that it should not be required to answer interrogatories because it has not as yet received sufficient information from the Licensee to permit a response.
There are several difficulties with the Intervenor's position. The first and most fundamental difficulty relates not to the source of the answers (as Intervenor would have it) but to the source of the questions. That is, the interrogatories filed by the Licensee were constructed by converting the assertions in the Intervenor's contentions into questions. Now, the Intervenor is telling the Board (by implication) that at the time it propounded its conten-tions, it did not possess a basis in fact for the issues it was raising. In other words, the Intervenor is suggesting to the Board that it did not have at the time of its original pleading any basis for its assertions aside from that which it hoped to obtain from the Licensee during discovery.
This is a troubling suggestion and raises the possibility that the Intervenor intended from the outset to engage 2
in a " fishing expedition" in &n effort to develop its case. Permitting the Intervenor to continue along this path does not square well with the proscription contained in Part 2, Appendix A,Section IV(a) of 10 C.F.R.: "In no event should the parties be permitted to use discovery procedures to conduct a ' fishing expedition' or to delay a proceeding."
While the above approach n.sy be (and perhaps should be) excusable in the initial stages of a proceeding, the Licensee submits that it becomes less understandable and less excusable as time passes and the volume of information increases. A license renewal proceeding is different from-both an ordinary civil lawsuit and an initial licensing proceeding. The critical difference relates to the amount of information which becomes publicly available as part and parcel of the process regardless of an intervenor's involvement. In contrast to a civil lawsuit, one party to the proceeding (the licensee) is required to disclose publicly virtually the entire basis for its case. In contrast to an initial licensing proceeding, a complete operating history (including problems or abnormal occurrences reported by the licensee) is available. Moreover, in this particular case the Licensee is a U.S. Government agency and is subject, therefore, to the Freedom of Informa-tion Act, 5 U.S.C. 552a. In short, substantial information is available to the Intervenor as part of the record in 3
this case. While the information has not been recorded in a form so as to produce the precise results the Intervenor seeks, it is nevertheless available and it is the Intervenor's re,ponsibility to subject the available information to whatever variety of analysis it deems appropriate.
Aside from the substantial amount of information available in the historical portion of Docket 50-170, two recently filed documents, the Licensee's " Safety Analysis Report" (S AR) and the NRC Staff's " Safety Evaluation Report" (SER) , provide a significant source of technical information relevant to this proceeding. In addition, the Intervenor has been in possession of Licensee's answers to interroga-tories for quite some time. While these sources may not have been prepared in the style necessary or desirable to assist the Intervenor in answering Licensee's Interroga-tories, they are comprehensive and contain as much informa-tion as necessary to enable the Intervenor to prepare responses.
The Licensee submits that on the record developed to date and in light of the publicly available information, the Intervenor is not entitled to a protective order.
Moreover, allowing the Intervenor to continue to assert its inability to respond to interrogatories on the theory that it has insufficient detailed information will serve only to delay progress toward the ultimate conclusion of this matter.
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There is one final matter that must be addressed.
The Intervenor asserts in the last portion of its motion that an agreement among counsel somehow serves to obviate the need to provide answers to those interrogatories for which the Intervenor has insufficient detailed information.
Counsel for the Licensee simply do not recall that any such agreement was ever entered into. While the possibility of such an approach was indeed discussed at the February, 1982, meeting, it never proceeded beyond informal discussion.
If, as the Intervenor suggests, such an agreement was made, the Licensee is at a loss to explain why the agreement was not mentioned until now. Certainly, the Licensee should have been reminded by the Intervenor of its existence in respcsse to Licensee's Supplemental Memorandum in Support of Motion to Compel Answers to Licensee's First Interroga-tories filed on February 24, 1982; or in Intervenor's Motion for Leave to Further Supplement Interrogatory Responses filed on August 2, 1982; or by receiving Intervenor's second set of interrogatories.
In summary, the Licensee respectfully requests that the Board deny the Intervenor's Motion for a Protective Order and grant the relief requested in the proposed form of order accompanying Licensee's Response to Intervenor's 5
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Motion for Leave to Further Supplement Responses and Inter-venor CNRS' Supplementary Response to Licensee's First Set of Interrogatories.
Respectfully submitted, k f' DAVID C. RICKARD Deputy General Counsel Counsel for Licensee 6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ARMED FORCES RADIOBIOLOGY Docket No. 50-170 RESEARCH INSTITUTE (Ronewal of Facility (TRIGA-Type Research Reactor) License No. R-84)
CERTIFICATE OF SERVICE OF DUPLICATE SIGNED COPIES OF 15 SEPTEMBER 1982 FILING I hereby certify that true and correct copies of the foregoing " LICENSEE'S RESPONSE TO INTERVENOR'S MOTION FOR A PROTECTIVE ORDER" were mailed this 15th day of September, 1982, by United States Mail, First Class, to the following:
Mrs. Helen Hoyt, Chairman Administrative Judge '
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Ernest E. Hill Administrative Judge Lawrence Livermore Laboratory University of California P.O. Box 808, L-123 Livermore, CA 94550 Dr. David R. Schink Administrative Judge Department of Oceanography Texas A&M University College Station, TX 77840 Mr. Richard G. Bachmann, Esq.
Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555 II
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Laura W. S. Macklin Institute for Public Representation Georgetown University Law Center 600 New Jersey Avenue, N.W.
Washington, D.C. 20001 Elizabeth B. Entwisle, Esq.
8118 Hartford Avenue Silver Spring, MD 20910 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Panel (5)
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Secretary (21)
U.S. Nuclear Regulatory Commission ATTN: Chief, Docketing and Service Section Washington, D.C. 20555 f(
/AVI C. RI ARD Deputy General Counsel Counsel for Licensee 2
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