ML20003E130
| ML20003E130 | |
| Person / Time | |
|---|---|
| Site: | 02700039 |
| Issue date: | 03/31/1981 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20003E126 | List: |
| References | |
| NUDOCS 8104020292 | |
| Download: ML20003E130 (12) | |
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UNITED STATES OF A:1 ERICA NUCLEAR REGULATORY COT 11SSION BEFORE THE AT0 11C SAFETY AND LICENSING BOARD In the itatter of
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U.S. ECOLOGY, INC.
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Dacket No. 27-39
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(Sheffield, Illinois Lo,:-Level
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Radioactive L!aste Disposal Site) )
SECOND NRC MOTION FOR AN ORDER COMPELLING U.S. ECOLOGY TO RESPOND TO CERTAIN INTERROGATORIES AND REQUESTS FOR DOCUMENTS On October 10, 1980 the NRC Staff (Staff) filed its first set of interrogatories and requests for production of docunents to U.S. Ecology (Licensee).
On October 20, 1930 the Licensee filed objections to certain Staff intarrogataries and requests for production of docunents.
On 3
Februa ry 13, 1981 this Soard held a prehearing conference at which all the parties appeared. The purpose of the conference was to hear froa the parties on all their various requests for discovery and objections thereto, including certain NRC Staff intarrogatories and requesti (nunbered la, b, c, d, e, f, g, h, i, j, u, v, and aa; 2; and 8) frc its first set of interrogataries.
These specific NRC Staff requests are the subject of the instant notion to conpel. See 10 C.F.R. 52.740(f).
By Order dated February 25, 1981, the Board ruled that each of the above interrogataries and docuaent requests nust be answered.
The Board ruled:
(at pages 1 and 2)
The infornation called for by Staff requests 1, 2, 8, 10 and the first 11 will either be identified by U.S. Ecology, Inc. if previously filed witfi the 8104 02 0 $lf33.
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llRC or will be made fully available for _ inspection _
[y the Staff at the offices of U.S. Ecology, Inc.
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euphasis add M].
r Pursuant to the Board's Order on flarch 16, 1981 the Licensee filed its
" Answers By U.S. Ecology, Inc. to flRC Staff's First Set of j
Interrogatories and Request For Production of Docuaents" (Answer).
.As is discussed more fully below the Licensee has failed to conply with -this Order in that it did not " identify" the information requested by liRC Staff interrogatories and document requests la, b, c, d, e, f, g, h,1, -j,- u, and.y and wholly failed to respond to i4RC Staff interrogatory and document' requests laa, 2 and 8.E i
II.' DISCUSS 10ft p
A.
The Licensee Failed To Comply With The 30ard's Order To.
Identify Information Requested By flRC Staff Requests-1, a, t-b, c, d, e, f, g,'h, i,-j, u.and v e
-As' set forth above, this Soard ruled in-its "Prehearing Conference Order and Order Ruling on Discovery Requests, Objections-and flotions" i
da t ed - Februa ry - 25, _1981 that the docuaents requested by the ilRC Staff, including its request number 1" will be identified by_ the U.S'. Ecology, Inc. ;if previously filed with the tiRC or will be made fully avai.lable (it:pages31 and 2). ' As indicated below this has' not been done.
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.1/l The'Licenseel byfits notion. entitled "Itotion By U.S. Ecology For' i-LClarification of Prehearing Conference Order and Ruling on Discovery.
L Requests, Objecti.ons and.flotions" dated !! arch 10, 1981 seeks.to
. overturn the Board's February'2S,' 19812 ruling with respect to flRC Staff: interrogatories and requests ~ numbered 2 and 8b. The' Staff ~
' opposed that. nation in Lits response entitied "flRC Staff Response to -
~ - Licensee's !!otion Dated !! arch 10, 1981,'Regarding the Board's Ruling
.tolNRC Staff Document: Requests." dated liarch '30,1981.
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. NRC Request 1 1.
Provide in a cent-al depository all " documents," in file folders if they are so filed, which " relate to":
a.
the acquisition by NEC) in 1968 of California Nuclear, Inc.
b.
the transfer in 1968 of California Nuclear's license concerning the Sheffield lo.t-level radioactive waste disposal site c.
the 99-year lease between NECO and the State of Illinois
[caphasis added]
The Licensee Responded:
(at page 1)
Answer:
All technical documents and the lease are a part of the record of this proceeding.
This response does not comply with the Board's Order to " identify" not only the specific items listed by the Staff in la, b and c but all docuaents which " relate to" the listed itens.
Furthermore, the Licensee only centions " technical documents" and the lease.
This is not what the Staff requested nor is it consistent with the Board's Order to identify all the infornation requested by the Staff if the Licensee has previously i
filed such docunents with the Staff or make such documents fully for inspection by the Staff at the offices of U.S. Ecology, Inc." (Order available for inspection by the Staff. /
2/
At the NRC Staff's search of documents at the offices of U.S.
Ecology at the Sheffield site conducted on " arch 24, 1981, certain naterials were withheld from the Staff's inspection. The Licensee's personnel indicated, when asked by the Staff if the documents they were inspecting represented "all documents," that financial information u.;d 'other privileged docunents" were at the office but were not being nade available for inspection.
_4-Staff Request Id 1.
Provide in a central depository all "docu ants" in f'le folders if they are so filed, which " relate to":
d.
NECO's application in 1968 to rene.i its AEC (NRC) license.
The Licensee Resycrided (at paces 1 and 2):
Answer:
This application is part of the record of this proceeding. See NECO letter dated August 15, 1958 to AEC end NEC0 letter dated May 3,1959.
5 AEC.
This response fails to indicate whether or not the two referenced letters represent all the documents which " relate to" the above Staff request.
Staff Request le 1.
Provide in a central depository all "d:cuments," in file fclders if they are so filed, which " relate co":
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e.
NECO's application in 1953 to expand the AEC licensed burial site to the adjacent 153 acres The Licensee Resoonded:
Answer 30 such application exists. The application to expand the site was subaitted as a reapplication at the request of the NRC and was included as enclosures to NEC0 letter dated Decerber 29, 1975 an.) is a part of the record of this proceeding.
The NRC Staff's request was' not linited to the appliestion or reapplication but included all docuuents that " relate to" such application. The Licensee has failed in accordance with the Board Order to "identi fy" such documents.
. Staff Requ_ests if,3,. h, i,,i and u and respective Licensee resp _onses:
1.
Provide in a central depository all "docuuents," in file folders if they are so filed, which " relate to":
Request f.
the letter froa Jaues N. Neel to William J. Dircks dated Deceaber 27, 1978 requesting suspension of further proceedings on its application for license renewal and site expansion Answer The document is a part of the record of this proceeding.
Request g.
NEC0's December 27, 1978 notion to the Licensing Board to suspend further proceedings on its application Answer d
The notion is a part of the record of this proceeding.
e Request h.
NEC0's March 8, 1979 " Notice to Atonic Safety and Licensing Board of Withdrawal of Application _and Termination of Licensing for Activities at Sheffield."
Answer The letter is a part of the record of this proceeding.
Request The Letter from Troy B. Conner to William J. Dircks of March 8, 1979 that NEC0 was (1) withdrawing its pending application to renst its license and expanc the Sheffield site and (2) terminating its license for all activities at "heffield.
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. ~ Answer The letter of :tarch 8, 1979 is a part of the record of.this proceeding.
I' Request
- j. The flarch 23,1979 " Answer of fluclear Engineering Conpany, Inc.
To Order To Show Cause and Demand For :learing.
Answer i~
j The answer is part of the record of the proceeding.
Request l
u.
All docuaents which relate to the ' transfer or attempted transfer of the site or the llRC/AEC license to~the State of Illinois, the IDPH, or-
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J any 'other _ federal or state agency, or any other entity.
' Answer-
'These documents are a part of the record of this proceeding.
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'In each response to Requests-1f, g, h, i, j, and u the Licensse coupletely. ignores _- the language.of the: Staff's request -for all documents that " relate to" the'. referenced document ~.
The responses only specify 'the l_
basic. documents themselves which the Staff _ has already identified as in "the record of -this'fraceeding" and fails to provide the docuaents the t
Staff: requested which " relate to" those Staff identified docunents.
this is an evasion of Licensee's(discovery responsibilities.
Further,- the l
response does inot even ' comply _with the Board's. Order to. identify such document's" if previously:Lfiled crithIthe f1RC.$
1 3f :. Order 'of. February 25,:1981~'at page 2.
- _ Staff Request lv 1.
Provide in a central depository all "docunents" in file folders if they are so filed, which " relate to":
v.
all documents, or references to documents, which relate to perneability and other soils engineering characteristics of trench ceps at the site The Licensee Responde?-
Answer These docunents are part of the Safety Analysis Report and other docunents in the record in this proceeding.
The last part of this answer reveals a failure to comply sith the Board's Order of February 25, 1931 to identify such docunents "if praviously filed with the NRC."
Further, there is no indication if these are all the docunents the Licensee has on these subjects.
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8.
The Licensee Coopletely Failed To Respond To 'iRC Staff Interrogatories and Requests For Docunents laa, 2 and 8 As indicated above the Board in its Order dated February 25, 1981 ruled that the Licensee nust respond to certain Staff requests, including laa, 2 and 8.
The Licensee has failed to give any response to Staff requests laa, 2 and 8.N It should again be ordered to respond to these requests.
y Staff Request laa provides:
1.
Provide in a central depository all "documnts," in file folders if they are so filed, which " relate to":
aa.
all other "docu;ents" which relate to this proceeding in any way, either directly or indirectly.
FOOTNOTE CONTI!iUED ON NEXT PAGE
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. C.
The Licensee Failed To Penait The Staff To Insnect Certain Documents At The Licensees' Office _ Contrary To The Board's _0rder As noted above the Board clearly ruled that the docunents requested by the Staff be made fully available for insp_ectio,n.
The Board stated:
(at pages 1 and 2)
The infonaation called for by Staff requests 1, 2, 8,10 and the first 11 will either be identified by U.S. Ecology _, Inc. if previousl[f_iled with the NRC or will be made fully available for~~~
inspection by the Staff at the offices of UTs. Ecology, Inc. [ emphasis addedl.
Pursuant to this Order, on March 24, 1981, the NRC Staff conducted a search of documents at the Licensee's Sheffield office. When Staff counsel asked Licensee personnel if the materials presented for inspection represented all of the documents requested by the Staff, tne Staff was informed that financial information and "other privileged g
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F00iNOTE CONTINUED FROM PRECEDING PAGE Staff Request 2 provides:
2.
Provide all documents described in request 1(a-y) above between NECO and Teledyne, Inc., and to, from, or between Teledyne and UECO, and between or among any agent, attorney, contractor, officer, or director of NECO and any such agent, attorney, contractor, officer, or director of Teledyne.
Staf' Request 8 provides:
8.a.
Provide all documents which' relate in any to actions to be taken by or for NEC0 before NECO may " quit," decommission, or
-stabilize the site, including but not limited to environnental nonitoring, site security, gradation and stabilization of site surface, and site buffer zone.
8.b.
Explain in detail any discussions or conmunications NEC0 has had which relate to S(a) with the State of Illinois or any other state or private entity.
. dicuacnts "were at the office but would not be nade available for inspection.
This refusal to permit the Staff to conduct its inspection of requested documents defies the Board's clear ruling to make docouentation not "identifed by U.S. Ecology, Inc. if previously filed with the ilRC" fully available for inspection.
Even if specific docunents could be identified by the Licensee as
" proprietary" or privileged, the Licensee should have fully identified the docuuents for which privileged or proprietary treatnent is sought and requested a protective order consistent with 10 C.F.R. 52.740. Moreover, the Commission's law is clear that one asserting entiticnent to a protective order based on a theory of information asserted to be proprietary or confidential must demonstrate, inter alia, that the information in question is of a type custonarily held in confidence by
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its originator; that there is a rational basis for having cu..amarily so treated the 'qformation; and that the information has, in fact, been kept in confidence and is not to be found in public sources.EI The Board also ruled with regard to inspection of documents at the Licensee's Louisville office that the parties "are directed to agree upon a prompt date for this" (Order at page 2).
The Staff has twice suggested dates for such an inspection.5/
In both instances the Licensee has evaded such an inspection.
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Vi_rjinia Electric and Power Company (florth Anna fluclear Power Ttation, Units 1 and 2]TAIXB-SFS,10 'MC 23, 27 (1979).
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See letter of March 16, 1981 from the ilRC Staff to Licensee's counsel, Robert M. Rader.
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' I III. fELIEF SOUGHT Based on the foregoing, the Staff respectfully requests an Order l
prohibiting the Licensee from introducing any evidence in this proceeding unless;the Licensee provides the inforaation required to be produced by l
'the Board's Order of February 25, 1981 regarding S*.aff requests 1, a, b, e
c, d,., f, g, h,-i,-j, u, v, and aa; 2, and 8 within 15 days of the 30ard's action on this action, and allows the Staff to inspect all documents at its Louisville, Kentucky office by that date.U Respectfully subnitted,
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'r Henry
. McGurren
~Counsal -for NRC Staff 3
Dated at Bethesda, Maryland
- this 31st day.of March,.1981 t.
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-The Board's authority to enter such an order is contained in 10 C.F.R. 2.707(a). allowing the entry of apprvpriate orders upon a i
default. in complying with any order issued under-10 C.F.R. '2.740.
.See Pennsylvania Power & Light'Co.'(Susquehanna Steam Electric
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. Station),LBP-79-31,4 10 NRC 597, 606 (1979).- The authority granted in.10LC.F.R. 2.707 is similar to that~provided in the' Federal Rules.
of Civil Procedure. See Rule 37(b)(2).
Under the Federal Rules and the Rules of the.Co;amission, even a stricter. penalty of dismissing a-f party has been imposed, than that penalty sought by the Staff.in
'this' proceeding.: See Public_ Service Electric and Gas Co. ' Atlantic Nuclear Generating -Station, Units 1 and 2), LBP-75-6f,~~f NRC' 702--
- (1975);.0ffshore Power Systems (Manufacturing License for Floating
. Nuclear Power Plants), LBP-75-67, 2 NRC 813,.817-(1975);
Northern-: States Powcr Company-(Tyrone Energy Park,-Unit 1),
-LIIP-77-37,-5:HRC.1298 (1977); Enerick _.v.
Fenick Industries, Inc.,
539 F.2d '1379, (Fif th. Cir.1976); and Mertens v. !!wanell, 587 F.2d 862 -(Seventh _Cir.1978)..
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9 UNITED STATES OF A: ERICA fiUCLEAR REGUL ATORY CO?i!SSION BEFORE THE ATOMIC SAFETY A!iD LICE!iSIf!G BOARD _
In the Matter v"
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U.S. ECOLOGY, I'1C.
D]cket No. 27-39
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Radfoactive Waste Disposal Site) )
(Sheffield, Illinois Low-Level
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CERTIFICATE OF SERVICE I hereby certify that copies of "SECOND firs fDTION FOR A!! ORDER C0",PELLING U.S. ECOLOGY TO RESPOND TO CERTAIN INTERROGATORIES AND REQUESTS FOR DOCUMENTS" in the above-captioned proceeding have been served or the
. folloding by deposit in the United States nail, or, as indicater by an asterisk, through deposit in the Nuc' ir Regulatory Connission'- internal nail systen, this 31st day of March,1981:
Andrew C. Goodhope, Esq.
Cornelius J. Hollerich, Esq.
3320 Estelle. Terrace State's Attorney Wheaton, MD 20906 Bui e. u County Court House Pr'.nceton, IL 61356 4
Jerry R. Kline*
m Ad.ninistrative Judge Kenneth G. Anspach, Esq.
U.S. Nuclear Regulatory Commission State of Illinois-Washington, DC 20355 Envirannental Control Division 183 Uest Randolph Street Dr. Forrest J. Ctnick Suite 2315 305 E. Hauilton Avenue Chicago, IL 60601 State College, PA 16801 John !i. Cannon, Esq.
Scott I; adson, Esq.
!!id-A.nerica Legal Foundation Assistant State's Attorney Suite 2245 601 Scath Main Street 20 North Macker Drive Princeton, IL 61356 Chicago, IL 60606 D. J. McRae, Esq.
Robert Russell, Esq.
217 West Second Street Johnson,Ilartin & Russell Kewaanee, IL 51443 10 Park Avenue West Princeton, IL 61356
a.
. Troy B. Conner, Jr., Esq.
Mr. Charles F. Eason Mark J. Uetterhahn, Esq.
U.S. Ecology, Inc.
Conner, Moore & Corber Director for Governnent A.' fairs 1747 Pennsylvania Avenue, N.W.
1100 17th Street, N.W.
Suite 1050 Suite 1000 Mashington, DC 20006 Washington, DC 2^936 Adairal Vincent P. de Foix Atonic Safety and Licensing Chairnan of the Board for Board Panel
- U. S. Ecology, Inc.
U.S. Nuclear Regulatory Coaaission P.O. Box 7246 Nashington, DC 20555 Louisville, KY 40207 Docketing and Service Section*
Atomic Safety and Licensing Office of the Secretary Appeal Soard*
U.S. Nuclear Regulatory Coaaission U.S. Nuclear Reg ilatory Conaission Washington, DC 20555 Washington, DC 20555 19 (U*
lienry'J. McGurren Counsel for NRC Staff 3
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