ML20212K428
| ML20212K428 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/04/1987 |
| From: | Bachmann R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2713 OL-3, NUDOCS 8703090304 | |
| Download: ML20212K428 (7) | |
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'USNRC March 4,1987
'87 WR -6 P2 '49 UNITED STATES OF AMEEICA NUCLEAR REGULATORY COMMISSION OFFICE OF SECl'ETARY 00CKE11NG & SEPVICE BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l
6 In the Matter of
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LONG ISLAND LIGHTING COMPANY'
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Docket No. 50-322-OL-3
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(Emergency Planning) x (Shoreham Nuclear Power Station,
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' Unit 1)
)
.NRC STAFF ANSI 4ER IN OPPOSITION TO INTERVENORS' MOTION TO COMPEL RESPONSE TO P
INTERVENORS' JANUARY 28,1D87 DISCOVERY REQUEST Pursuant to 10 C.F.R.
II 2.730(c) snd 2.730(h), the Staff hereby files its answer in opposition to Intervenors' "Suffolk County, State of New York, and 'Ibwn of Southampton ' Motion for Order Ccmpelling the NRC Staff to Respond to, Portions of die Governments' First Set of Interrogatories and Request for Production of Documents to FEMA and the.
NRC Staff" (" Motion to Compel"), dated February 27, 1987.
l I.
INTRODUCTION l
On January 23, 1087, Intervenors filed "Suffolk County, State of New York and Town of Southamptois'n First Set of Interrogatories an.1 l
Request for Production of Docuraents to FEMA and the NRC Staff"
(" Discovery Roquest"). On February 13, 1987, the Staff Abd "NRC Staff i
j Response to Suffolk County, g al. First Set of Interrogatories and
.R quest for Production of Documents to FEMA and the NRC Staff" (" Staff P
l Response").
The instant Motion to Compel seeks an order from this l
l Licensing ' Board compelling the Staff to respond to interrogatories 3 and 5 l
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w through 11 of Intervenors' Discovery Request.
Specifically, Intervenors -
f demand that the Staff identify publicly available documents in accordance with Intervenors' specific categories.
The Staff submits that Intervenors' Motion to Compel runs counter to the Commission's Regulations and should be denied.
II. DISCUSSION As noted in the-February 13, 1987 Staff Response, discovery addressed to the Staff is governed by particular sections of the Regulations, and not the ones cited by Intervenors. Staff Response at 1-2.-
In their January 28, 1987 Discovery Request, and in their Motion to Compel, Intervenora Dhave. persistently ignored that fact.
The Staff pointed cut that interrogatories to the Staff are to be filed pursuant to 10 C.F.R. 5 2.720(h)(2), and not 5 2.740.
Staff Response at 1.
Now inf 1
Intervenors have filed their Motion to Compel pursuant to 10 C.F.R.
- f' 5 2.740(f), which by its own words is not applicable to the Staff.
f 2.740(f)(3).
Such casual disregard for the Commission's Regulations is evident throughout the Motion to Compel.
't
Intervenors argue that the Staff should
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.ompelled to identify particular documents responsive to their i 4.;rr stories.
Motion to 7
Compel at 5.
The Staff does not dispute that it is unwilling to make such identification, and has set forth the reasons in the Staff Response. Staff s f ip Response at 1-2.
(However, the Staff will provide responses to Interrogatory 3, which requests identiiication of documents Staff witnesses will rely on in their testimony.
This information will be
- a provided as soon as it is available.)
The essence of the Staff's position
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is that : parties seeking discovery on the Staff should follow the Regulations.
The Staff has made the one concession of not requiring.
interrogatories to. be 111ed with the Licensing Board pursuant to 10 C.F.R. I 2.7.20(h)(2)(ii). Id.
Intervenors base' their discovery argument on 10 C.F.R. 5 2.740(b)(1), which, as noted above, is not applicable to the Staff.
Motion to -Compel at 4-5.
They refer to a policy of " liberal discovery",
and appear to insist that regular discovery rules apply to the Staff.
Id.
They then cite a number-of NRC cases, all but one of which do not deal with discovery on the Staff.
Id. at 5.
The singular exception is Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NP.C 317. (1980).
However, a reading of Susquehanna readily reveals that the Appeal Board was referring to "perties other than the staff" (emphasis in original).
12 NRC at 322.
Moreover, the Appeal Board went on to make that oft-quoted remark that
"[d]iscovery against the staf# is on a different footing". 12 NRC at 323.
The Appeal Board also set out quite clearly the rules governing discovery on the Staff.
Id.
Not only do Intervenors rely on cases which do not support their position that the general discovery rules apply to the Staff, but the one case addressing discovery against the Steff, Susquehanna, directly contradicts their argument.
Beyond Intervenors' lack of recognition of the applicable regulations, is their failure to acknowledge (See Motion to Compel at 5, n.2 ) that,
under 10 C.F.R.
I 2.790, all NRC documents relating to a given docket will be placed in the Public Document Room.
There is simply no require-
ment that the Staff-further identify documents.already publicly available pursuant to 10 C.F.R. I 2.790.
Rioreover, it is important to note that i 2.744 only comes into play during a proceeding when documents are not available pursuant to I 2.790.
As stated in 10 C.F.R. Part 2, App. A, Para. IV (previously cited'in Staff Response at 2):
(d)
In general, staff documents that are relevant to a proceeding will be publicly available as a matter of course unless there is a compelling justification for their nondisclosure.
There-fore, document discovery directed at the staff will be restricted, as provided in 5 2.744(c),
since most staff documents will be publicly available and should reasonably disclose the basis for the staff's position.
Formal discovery of documents against the staff will be limited to cases where it concerns a matter necessary to a proper decision in a case and the information sought -is not obtainable elsewhere.
?foreover, the Staff has not objected to the production of any document requested by Intervenors. See 5 2.744(c).
In this proceeding, in the event the Staff determined that a particular document should be withheld from public disclosure, the document would be identified, and at that time Intervenors could invoke the provisions of 10 C.F.R. I 2.744.
Finally to the extent Intervenors' request for identification of docu-ments may be treated as an interrogatory to the Staff under 10 C.F.R.
I 2.720(h)(2)(ii), the result is the same. O Under that provision, the Staff may not be compelled to answer interrogatories unless answers "are necessary to a proper decision in the proceeding and the answers to the 1/
It may be noted that 10 C.F.R. I 2.720(h)(2)(ii) is not relied upon
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by Intervenors.
s.
interrogatories ' are not reasonably obtainable from any other source.
Here, Intervenors are free to examine all the responsive documents for themselves in the PDR.
As a result, the answers sought are clearly not necessary to a proper decision here, and are reasonably available to Intervenors.
In sum, the Staff has fulfilled its obligations under the r.,
lations by placing all NRC documents related to this proceeding in the Public Document Room, and by so stating to the Intervenors.
As previously noted, the Staff is not required to identify specific documents for the convenience of other parties.
Since the Staff has neither withheld any documents nor objected to their disclosure, Intervenors are not entitled to the relief they seek.
III. CONCLUSION Intervenors' Motion to Compel has no basis in the Commission's Regulations and should be denied.
Respectfully submitted, Richard G. Bachmann Counsel for NRC Staff
+
Dated at Bethesda, Maryland this 4th day of March,1987 e ~~-
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.j 00CMETED USNRC UNITED STATES OF AMERICA
. NUCLEAR REGULATORY COMMISSION
'87 MR -6 ' P2 50 BEFORE THE ATOMIC SAFETY' AND LICENSING BOAWd(Syg ERANCH-In the Matter of.
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER IN OPPOSITION TO INTERVENORS' MOTION TO COMPEL RESPONSE TO INTERVENORS' JANUARY 28, 1987 DISCOVERY REQUEST" 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 system this 4th day of March 1987:
Morton D. Margulies, Chairman
- Joel Blau, Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Kline*
Fabian G. Palomino, Esq.
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Shon*
Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Retrulatory Commission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 Philip McIntire W. Taylor Reveley III, Esq.
Federal Emergency Management Donald P. Irwin, Esq.
Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212
- Stephen B. L.atham, Esq.
Herbert H. Brown, Esq.
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 Appeal Board Panel
- Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 i
Spence W. Perry, Esq.
Martin Bradley Ashare, Esq.
General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472
'Dr. Plonroe Schneider Robert Abrams, Esq.
North Shore Committee Attorney General of the State P.O. Box 231 of New York Wading River, NY 11792 Attn: Peter Bienstock, Esq.
Department of Law Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center 105 East Main Street Room 46-14 Smithtown, NY 11787 New York, NY 10047 Anthony F. Earley, Jr.
William R. Cumming, Esq.
General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency ??anagement 175 East Old Country Road Agency Hicksville, NY 11801 500 C Street, SW I.
Dr. Robert Hoffman i
Long Island Coalition for Safe Docketing and Service Section*
Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory l
Commission Massapequa, NY 11758 10ashington, DC 20555 Mary M. Gundrum, Esq.
Barbara Newman l
New York State Department of Law Director, Environmental IIealth 120 Broadway Coalition for Safe Living 3rd Floor, Room 3-116 Box 944 New York, NY 10271 Hunt gton, New Yor 11743 l
A 4%#ge [. Johddon i
CounselTor NRC Staff a-
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