ML20212N566
| ML20212N566 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/10/1987 |
| From: | Margulies M Atomic Safety and Licensing Board Panel |
| To: | NEW YORK, STATE OF, SOUTHOLD, NY, SUFFOLK COUNTY, NY |
| References | |
| CON-#187-2763 86-529-02-OL, 86-529-2-OL, OL-3, NUDOCS 8703130075 | |
| Download: ML20212N566 (5) | |
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Z7(o3 000KETED t!SNRC UNITED STATES OF APERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
QFFICE OF Sf CRETt.EY BOCMETING & SEftV!CC BRANCH Morton B. Margulies, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon SERVED MAR 111987 In the Matter of Docket No. 50-322-OL-3
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(Emergency Planning)
LONG ISLAND LIGHTING COMPANY
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(ASLBPNo. 86-529-02-OL)
(Shoreham Nuclear Power Station,
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Unit 1)
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March 10, 1987
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MEMORANDUM AND ORDER (Ruling on Intervenors' Motion for Order Compelling NRC to Respond to Discovery Request)
By motion dated February 27, 1987, Intervenors seek an order from the Licensing Board compelling NRC Staff to respond to its request to
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identify documents contained in " Governments' First Set of l
l Interrogatories and Request for Production of Documents to FEMA and the NRC Staff," dated January 28, 1987.
The motion, made pursuant to 10 C.F.R. 2.740(f), alleges that the l-discovery request seeks the identification of documents the NRC Staff intends to rely upon at the upcoming hearing on the adequacy of the reception centers designated in LILCO's Plan, as well as documents and comunications concerning those reception centers. The infonnation was identified as follows:
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2 3.
Identify all studies, papers, articles, reports, books, and other such documents, published or unpublished, upon which each witness identified.in response to Interrogatory No. 1 intends to rely ~in support of his or her testimony.....
5.
Identify all articles, papers, and other documents authored or
.co-authored by each FEMA or NRC staff witness identified in response to Interrogatory No.1 on the subject of reception centers, care of evacuees during emergencies, monitoring or decontamination of people or property, handling contaminated materials, traffic engineering or management, or the number of persons expected to arrive at LILCO's reception centers for monitoring.~...
6.
Identify all documents concerning the use of LILCO's Hicksville, Bellmore, and Roslyn Operations Centers as reception centers 7.
Identify all communications between LILC0 and the NRC or FEMA 4
concerning the use of the Bellmore, Hicksville, and Roslyn Operations center as reception centers....
8.
Identify all documents concerning LILC0's procedures for monitoring or decontaminating evacuees as set forth in the LILCO Plan 9.
Identify all documents concerning the LILC0 Plan's compliance with NUREG 0654 II.J.12 or with FEMA or NRC guidance memoranda, or other such documents, regarding reception centers or the care, monitoring or decontamination of evacuees....
10.
Identify all documents concerning FEMA's review.of the LILC0 Plan....
11.
Identify all documents concerning the Regional Assistance Committee's (the "RAC's") review of the LILC0 Plan....
Intervenors further alleged that the matters requested are clearly relevant to the instant litigation and that it was advised by Staff that the documents would not be made available because it did not have the resources or time to make such an identification.
Intervenors claim that Staff's action constitutes a total failure to respond.
It cited in support of its position 10 CFR 2.740(b)(1), the general provisions L
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. governing discovery, and Comm'ission cases said to' support a liberal
' discovery policy including Pennsylvania Power and Light Co. (Susquehanna F
Steam Electric Station, Units 1 and 2),~ALAB-613, 12 NRC 317,'322.
'(1980).
Staff, in its response of March 4,1987 is of the position that the motion to compel runs contrary to Comission regulation and should be denied.. Staff cites its February 13, 1987 initial response to the discovery request in which it alleged that discovery addressed to Staff is governed by specific regulations applicable to it and not the general regulations cited by Intervenors.
It noted 10 CFR 2.720(h)(2).. Staff also claimed the subject motion was incorrectly brought under 10 CFR
' 2.740(f), which in subsection 2.740(f)(?) makes it inapplicable to Staff. 'It also noted that the Commission case cited by Intervenors as calling for a liberal discovery policy were solely applicable to parties other than Staff, except in the case of Susquehanna where the special rules relating to Staff were also set forth.
Staff did not dispute that it was unwilling to make the identification called for by Intervenors. Staff asserted it has adhered
' to the standards of 10 CFR 2.744 and 2.790, which only place upon it a requirement as to items generated by the Staff and which are not reasonably obtainable elsewhere. Because 10 CFR 2.790 causes all NRC documents relating to a given docket be placed in the Public Document Room, it objected to identifying those documents, as well as those which have been the subject of a Freedom of Information Act request by 4
Intervenors.
It also objected to identifying documents generated by l
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4 other parties or by FEMA. Staff did agree to provide responses to Interrogatory 3, which requests identification of documents Staff
- L witnesses will rely on in their testimony.
LILCO took no position in this matter.
In reviewing the positions of the parties and the applicable law, the Licensing Board concludes that Intervenors' motion should be denied.
As a preliminary matter the Licensing Board has come to rely in this proceeding upon a high level of legal practice, with the parties being direct in setting out the issues and the applicable law. We do expect that to remain the practice.
The Appeal Board in Susquehanna, ALAB-613, 623, cited by Intervenors, very succinctly laid out the Comission's special discovery rules applicable to NRC Staff.
It said:
Discovery against the staff is on a different footing.
With limited exceptions, Commission regulations make staff documents that are relevant to licensing proceedings routinely available in the NRC Public Document Room.
The contemplation is that these "should reasonably disclose the basis for the staff's position," (footnote omitted) thereby reducing any need for formal discovery. Reflective of that policy, the Rules of Practice limit documentary discovery against the staff to items not reasonably obtainable from other sources,10 CFR 2.744; require a showing of " exceptional circumstances" tc' depose staff personnel, 10 CFR 2.720(h) and 2.740a(j); and allow interrogatories addressed to the staff i
only "where the information is necessary to a proper decision in the case and i.ot obtainable elsewhere." (footnoteomitted)
Sei 10 CFR 2.72r',h)(2)(ii).
In addition, the licensing board's advanct. oermission is needed to depose staff members or to require trk staff to answer written interrogatories.
Ibid.
See also 10 CFR, Part 2, App.'A, It. 't i davery, i
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Because Staff has agreed to identify the information requested by
. Interrogatory 3, the matter has been rendered moot, thereby providing no t
basis to grant the motion as to Interrogatory 3.
As to the information requested by the other Interrogatories, it
- relates to information that should be publicly available in the Public Document Room or was generated by parties other than Staff. Because by Commission practice, formal discovery as to Staff is limited to information which is not obtainable elsewhere, and that was not established, the relief sought was not shown to be justified.
Intervenors' motion to compel should be denied.
ORDER Based upon all of the foregoing, it is hereby ordered that Intervenors' motion of February 27, 1987 to compel NRC to respond to Intervenors' January 28, 1987 discovery request is hereby denied.
FOR THE ATOMIC SAFETY AND LICENSING BOARD Mo'rton B. Margulies,pairman ADMINISTRATIVE LAW.1UDGE Dated at Bethesda, Maryland this 10th daf of March, 1987 6
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