ML20126C782

Responds to Enclosing CPC First Round of Interrogatories & Request for Production of Documents. Answers Will Be Accommodated Informally,To Extent of Relevancy to Civil Penalty Issues,W/O Waiving Objections

ML20126C782
Person / Time
Site:	Palisades
Issue date:	03/06/1980
From:	Jenny Murray NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Mark Miller ISHAM, LINCOLN & BEALE
References
NUDOCS 8004090442
Download: ML20126C782 (3)

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In the Matter of  :

I CONSUMERS POWER COMPANY [

(Palisades Nuclear Power Facility) ,

i CIVIL PENALTY Addt'l Dist.:

Dick Silver, NRR Sam Bryan, I&E D. Thompson, XOOS .

Victor Stello, Jr., I&E James Keppler, Reg. III D. Boyd, Reg. III A ocketing D & Service Section ASLBP ASLAP

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UsNRC:

Michael I. Miller Esq. O -

Isham, Lincoln & Beale L- MAR 10 G80> ..,

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Dear Mr. Miller:

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I This letter is in response to your letter of February 21,1980, which enclosed " Consumers Power Company's First Round of Interrogatories and Request for the Production of Documents by the !!uclear Regulatory Comission".

We intend to answer this and future infomal discovery requests insofar as I these requests encompass matters which are appropriately discoverable in i this case. To the extent infomation you seek is relevant and necessary to a proper decision in this matter, we believe we can accomodate your request infomally and it will, therefore, be unnecessary to insist on your strict compliance with the fomal discovery mechanisms contemplated in 10 CFR 2.720

. and 2.744 as a prerequisite to your obtaining such infomation.

We wish to infom you, however, that we do not intend to provide any answers to several requests made in your Februa 21st filing: pecifically, items 2 (c) and (d); 3; 4; 5 in part; 6(b) 11 iri part; 7 b)(ii) in art; 8 11) in part; 9; 11 in ); 12(1) in part; 13( ) and (g);

131) in part; 14(a)(iv),v), (part; (viii12(, and ) andx); and 17 in part. The thrust of these questions is to delve into the thoughts of each person on the NRC staff who may have participated in the internal deliberative process that .

led to the decision by the Director of Inspection and Enforcement to impose civil penalties against Consumers Power Company.

In our view, such an i.nquiry is neither relevant nor necessary to a proper decision by the Adninistrative.

Law Judge in this case. Moreover, we do not believe that the infomation you seek in these questions is properly discoverable.

The issues in this case do not concern the individual opinions of members of the staff in proposing the imposition or non-imposition of a civil penalty against Consumers Power company. Those persons who may have advised or partici-pated in the process leading to the Director's December 20th Order - indeed.It including the Director himself - are not the decisiomakers in this case.

is Judge Smith who must now determine (1) whether Consumers Power Company comitted the alleged violations and (2) whether civil penalties are warranted.

Of course, the NRC staff has the burden of going forward on the issues in this G

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. Licensing Appeal Board in Radiation In that case, theTechnolocy, licensee argued (

petition for review denfeCJanuary 4,1980.

that its due process rights had been violated, because the licensee did not '

have the opportunity to cYoss.-examine the Director regarding statements him by other NRC personnel that led to the Director's determination to im civil penalties. The Appeal Board rejected this argument:

"The answer to this contention'is that it rests on a misconception. -

The Directo'r is not the ultimate fact fin:er in civil penalty matters.

Commission" regulations afford one from whom a civil penalty is sought the right to a hearing on the charges against it.10 CFR 52.205(d)'and (e). At that hearing, the Director mus.t prove his allegations by It a ispro-ponderance of the reliable, probative and substantial evidence. ,

the presiding officer at that hearing, not the Director, who finally detemines on the basis of the hearing record whether the chirges.are sustained and civil penalties warranted." Id._, Slip Op. at 6-7.

The Appeal Board went on to say:

"A licensee who thinks the Director has been ill-advised or mist has a remedy. It is not to cross-examine the Director's thought processes but to make him prove his case at an' impartial hearing." -

Id._, Slip Op. at 8.

I Although you may be styling your argument a bit differently, He think, the therefore.

Company's '

position is not unlike that taken by Radiation Technology. .

that the Appeal Board's decision is equally applicable here.

Uhile we intsnd at this point to answer your remaining requests, we do not  !

intend to waive by this letter any other objections to those requests t

'i become apparent,upon further analysis.12,13, and To the 14extent encompa.

publicly available in the Comission's public docunent room.th l i

we will make every effort to accomodate your requests.

Sincerely, \

/0 James P. !!urray Director and Chief Counsel Rulenaking and Enforcemnt Division

' Office of Executive Legal Director l

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