ML18045A777

Motion to Compel More Specific Answers from NRC to Second Round of Interrogatories 1 Through 4.Requested Info Needed in Detail in Order to Determine If Discretion Abused. Certificate of Svc Encl.Related Correspondence

ML18045A777
Person / Time
Site:	Palisades
Issue date:	10/06/1980
From:	Bielawski A CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8010150040
Download: ML18045A777 (9)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter of CONSUMERS POWER COMPANY Docket No. 50-255 Palisades Nuclear Power License No. DPR-20 Facility MOTION TO COMPEL MORE SPECIFIC ANSWERS TO CONSUMERS' SECOND ROUND OF INTERROGATORIES On August 20, 1980, Consumers Power Company

("Consumers") served the .Nuclear Regulatory Commission

("NRC" or "Staff") with Consumers' Second Round of Interro-gatories. On September 24, 1980, the Staff served its answers to Consumers' interrogatories. As will be established below, the Staff's answer to Interrogatories 1, 2, 3 and 4 are incomplete and insufficiently specific. Therefore, pur-suant to 10 CFR §2.740(f), Consumers requests that the Administrative Law Judge enter an order requiring the Staff to provide more specific answers to these interrogatories.

ARGUMENT Interrogatory 1 requested the following information:

List each factor and/or criterion which the Off ice of Inspection and Enforcement utilizes in evaluating whether to 'treat a condition

caused by a single act or series of acts but which persists thereafter as a continuing violation under Section 234 of the Atomic Energy Act.

The Staff's answer states:

"General guidance is provided in the Statement of Consideration accompanying issuance of 10 CFR 2.205, 36 Fed.

Reg . 16 8 9 4 ( 19 71 ) :

"Furthermore, section 234 of the Act provides that if any. violation is a continuing one, each day of violation shall constitute a separate violation for the purpose of computing the applicable civil penalty. In a case where, despite the exercise of reasonable diligence, a licensee was not aware of the violation until brought to its attention by the Commission, the computation of the period of violation would normally begin at that time or after the time allowed the licensee for corrective action. On the other hand, if* the*evidence showed that a licensee had knowingly permitted violations to continue, the computation of the period of violation m~ght begin at the time the licensee permitted the violations to continue.

"Given this general guidance, the Director of the Office of Inspection and Enforcement has broad discretion to determine whether to assess penalties for each day of a continuing item of noncompliance."

In propounding this interrogatory, Consumers is

• seeking to discover the specific factors and criteria applied py the Staff in considering whether to classify an item of noncompliance as single or continuing. The Staff recites the general guidance provided by the Commission to the Office of Inspection and Enforcement (IE) , and simply states that this is a matter conferred to the broad discretion of IE. The Staff does not, however, identify any of the spe-cific factors and criteria which are to be considered by IE in the exercise of this discretion.

It is a basic tenet of administative law that agency personnel may not lawfully act beyond the scope of the discretion conferred upon them, and that any such action is invalid. It is also self evident that an evaluation of whether agency action constitutes an abuse of discretion is impossible unless the guidance, factors and criteria which are utilized in exercising this discretion. are identified.

Without this crucial information, Consumers is in no position whatever to determine whether, under the facts of this case; the imposition of civil penalties for each day of noncompliance is authorized under law. Given the obvious importance of this issue to the amount of the fine, if any, ultimately deemed appropriate by the Administrative Law Judge, Consumers must clearly be provided with the information sought.

It may well be that the cinly factors and criteria which IE considers in deciding whether to classify an item of noncompliance as continuing are those identified in the Commission guidance set forth in the Statement of Considerations quoted in the Staff's Answer. If this is the case, the Staff should be instructed to so state. If, however, this

".J is not the c~se, which seems likely in view of the Staff's answer to Interrogatory 2 which explains that the considerations

.identified in the Commission's guidance are not directly applicable to the facts surrounding this case, the Staff should be instructed to identify any other factors or criteria considered by IE in exercising its discretion.

A favorable ruling regarding our motion to compel a more specific answer to Interrogatory 1 would as a matter of course require more specific respons~s to Interrogatories 2-4 in as much as Interrogatories 2-4 merely request that the Staff apply the specific factors and criteria sought in Interro-gatory 1 to the particular facts of this case. Accordingly, we have briefly summarized Interrogatories 2-4 and the answers thereto in lieu of quoting them in their entirety.

Interrogatory 2 requests that the Staff relate the

.criteria and factors considered by IE in exercising its discretion regarding the classification of an item of noncompliance as continuing or single to the specific facts

. surrounding Item 1 of noncompliance which is the subject of this proceeding. In its Answer, the Staff merely states that the guidance provided to the Staff in the Statement of Considerations do not "fit exactly" the circumstances surrounding Item 1 of noncompliance, but that given that the incident was not normal or routine, civil penalties are appropriately assessed for each day of noncompliance.

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Apparently, the Staff has taken the position that the Commission has conferred upon it the discretion to classify ~n item of noncompliance as continuing if the noncompliance is not "normal". Although Consumers does not believe that the language of the Statement of Policy supports such a position, we submit that the Staff must be required to supply Consumers with the factors, criteria and guidance utilized by the Staff in determining whether a noncompliance is to be dlassified as normal or abnormal. Only then will Consumers be in a position to evaluate whether, pursuant to this guidance, the Item 1 of noncompliarid~ c6ristitutes an "abnormal" violation.

Interrogatory 3 requests that the Staff "identify each factor or criterion which the NRC will rely upon in support of its position that the Administrative Law Judge categorize Item 1 of noncompliance as a cobtinuing item of noncompliance." In answering this interrogatory, the Staff states in a conclusory manner that the "Commission has broad discretion in determining the circumstances in which it is appropriate to use the Commission's available enforcement sanctions and that due to the seriousness of this alleged noncompliance the imposition of civil penalties for each day of noncompliance is appropriate."

Although the Staff sets forth the factors under-lying its belief that Item 1 of noncompliance constituted a

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serious violation, the Staff does not identify any of the factors or criteria which under Section 234 of the Atomic Energy Act, the Commission's regulations, or other Commission guidance permit IE to propose, or the Administrative Law Judge to impose, civil penalties for each day of noncompliance.

If the Staff is stating that there is no such guidance, or that IE and the Administrative Law Judge have absolute discretion to impose penalties on a continuing basis for any noncompliance which exists for more than one day notwithstanding the nature of the noncompliance or surrounding circumstances, it should make its position cl~ar. If, ~p~ever, there exist specific criteria which control the exercise of discretion regarding these matters, the Staff should be compelled to specifically identify these criteria.

Finally, Interrogatory 4 requests that the Staff identify the specific factors and criteria which support Consumers' position that the Administrative Law Judge cate-gorized Item 1 as a noncontinuing violation. The Staff answers that they are not aware of any facts which support this position.

First, Consumers has not requested by way of this Interrogatory any facts whatever. The Interrogatory seeks an identification of factors and criteria, which will pre-sumably be identified in the Staff answer to Interrogatory 1, which may support a ruling by the Administrative Law Judge that Item 1 be classified as a noncontinuing noncompliance.

Accordingly, the Staff should be compelled to provide a response in answer to Interrogatory 4.

WHEREFORE, for the reasons stated above, Consumers respectfully requests that the Administrative Law Judge enter an order compelling the Staff to produce more specific answers to Consumers' Interrogatories 1-4.

Respectfully submitted, 7

,#;f,2/d-Alan P. Bielawski One of the Attorneys for Consumers Power Company DATED: October 6, 1980.

Michael I. Miller Paul M. Murphy ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 558-7500 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ADMINISTRATIVE LAW JUDGE In the Matter of:

DOCKET NO. 50-255 CONSUMERS POWER COMPANY License No. DPR-20 (Palisades Nuclear Power Facility)

CERTIFICATE OF SERVICE I, Alan P. Bielawski, one of the attorneys for Consumers Power Company, certify that copies of the "Motion To Compel More Specific Answers to Consumers' Second Round Of Interrogatories" have been served in the above-captioned matter on the following by depsiting same in United States mail, postage prepaid, this 6th day of October, 1980:

Honorable Ivan w. Smith Administrative Law Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 James P. Murray, Esq.

Director and Chief Counsel Rulemaking and Enforcement Divisio~

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission

• Washington, D.C. 20555 James Lieberman, Esq.

U.S. Nuclear Regulatory Commission Office of Executive Legal Director Washington, D.C. 20555 Stephen G. Burns, Esq.

U.S. Nuclear Regulatory Commission Office of Executive Legal Director Washington, D.C. 20555 Docketing and Service Section Off ice of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Atomic Safety and Liceniing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Judd L. Bacori, Esq.

Consumers Power Company 212 West Michigan AVenue Jackson, Michigan 49201 Alan P. Bielawski DATED: October 6, 1980.

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