ML20004D093
| ML20004D093 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 06/03/1981 |
| From: | Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8106080356 | |
| Download: ML20004D093 (10) | |
Text
, Q.
.l ff._
,; q y
k:F az 6/3/81 1
h
- 'w
'i -
y]a i~]Yq UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION h'
BEFORE.THE ATOMIC SAFETY AND LICENSING BOARD 'i JW: 0 41981 > [8 In the Matter of
)
" EEF g/
TEXAS UTILITIES GENERATING COMPANY, ET AL.
l
\\
[
T Docket No. 50.48
)50-44D 13 (Comanche Peak Steam Electric Station.
)
s jg Units 1 and 2)
)
y
)
4 NRC STAFF ANSWER TO APPLICANTS' MOTION TO STRIKE ACORN CONTENTIONS FOR DEFAULT OR, IN THE ALTERNATIVE, TO COMPEL
~'
RESPONSES TO APPLICANTS' INTERROGATORIES f
INTRODUCTION y
On May 14,1981, /.pplicants filed " Applicants' Motion to Strike ACORN Contentions For Default Or In The Alternative, To Compel Responses to Appli-cants' Interrogatories" (hereafter " Applicants' Motion to Strike").
In this motion, Applicants seek from the Atomic Safety and Licensing Board (the Licens-ing Board) an Order, pursuant to 10 CFR $ 2.707, striki. g from this proceeding Contentions 10,12,14,15,17,18,19, and 21 in view of the failure of the
~
j Texas Association of Community Organizations for Reform Now (" ACORN") to respond to Applicants' second and third sets of interrogatories.M In the M The Licensing Board consolidated the intervenors for certain contentions, with ACORN being appointed " lead intervenor" for consolidated Conten-tions 5 and 23, and as sole sponsor of Contentions 10, 12, 13, 14, 15, 16,17,18,19, 20, and 21, for those contentions as well.
See the Licensing Board's "Mecorandum and Order of December 31, 1980." The Licensing Board provided that the lead party-intervenor for a partic-ular contentior is lead for all purposes, which would include discovery.
I._d Applicants' second and third sets of interrogatories relate to Conten-tions W. 12, 14, 15, 17, 18, 19 and 21.
+
{C82a oso356
alternative, Applicants nove, pursuant to 10 CFR 6 2.740(f), that the Licensing Board issue an order compelling ACORN to provide full and com-plete responses to Applic' ants' interrogatories on an expedited schedule.
Ordinarily, the NRC Staff does not express an opinion on discovery matters to which it is not a party.
However, as Applicants correctly point out in support of their motior,E not only has ACORN responded inadequately or not at all to Applicants' discovery requests, but ACORN has completely ignored the Staff's discovery requests.E Thus, the conduct by ACORN giving rise to Applicants' Motion to Strike, supra, has also been evident with respect to the Staff's discovery requests of ACORN.
Although ACORN has unjustifiably failed to respond to most of the Applicants' discovery requests and all of Staff's discovery requests, the Staff believes that the Licensing Board shcald defer action on Appli-cants' Motion to Strike, supra. While NRC case law interpreting 10 CFR 95 2.707 and 2.718 does not preclude the relief sought by Applicants, the better practice would be for the Licensing Board to first grant the pend-ing motions to compel ACORN to respond to the Applicants' and Staff's E Applicants' Motion to Strike, supra, at 6, fn.3.
E ee "NRC Staff First Set of Interrogatories To and Request For the S
Production of Documents From, Intervenor ACORN", January 19, 1981.
The Staff's interrogatories are directed to all of the contentions for which ACORN has been designated " lead intervenor."
In view of the failure of ACORN to respond to the Staff's January 19, 1981, dis-covery requests by March 6,1981 (the 'igreed-upon date for filing responses to these discovery requests), on March 16, 1981, the NRC Staff filed " Staff's Motion for Order Compelling ACORN to Respond to NRC Staff Interrogatories and Request For Production of Documents" (hereafter " Staff's Motion to Compel").
This motion is pending before l
the Licensing Board for a rul:.1g.
i
\\
discovery requestsM and issue orders compelling ACORN to respond to the outstanding discovery requests.
In the event ACORN fails to comply with Licensing Board orders.cciipelling responses to discovery requests, the Staff believes that it would then be appropriate for the Licensing Board to consider imposing the sanction of striking the contentions to which any unanswered discovery requests are directed.E DISCUSSION According to Applicants' Motion to Strike, supra:
"...,he issue at bar is whether the Board has the authority to strike (dismiss) contentions if the proponent of the contentions fails to comply or object to lawful discovery demands, or whether the Board must take the intermediate step of issuing an order compelling responses.
10 CFR Q 2.740(f)."
M.,at7.
Applicants, relying on 10 CFR 65 2.707 and 2.718, assert that:
"Where, as here, a party fails to even object to such requests and the pattern of behavior is clear, the Board may, in its discretion, forego issuing an order to compel and strike contentions. There is no legal requirement that the Board must issue an order compelling discovery before doing so." TEphasis in original). M.,at7-8.
O s Applicants note in their Motion to Strike, supra, in view of ACORN's A
failure to respond to Applicants' second set of interrogatories, on i
March 31, 1981, Applicants moved for an order compelling ACORN to respond to those interrogatories.
Applicants request that in the l
event the Licensing Board does not grant Applicants' Motion to Strike, the Licensing Board should issue orders compelling ACORN to respond to Applicants' second and third sets of interrogatories.
As noted above, in footnote 3, on March 16, 1981, the Staff filed a motion to compel ACORN to respond to the Staff's discovery requests.
M The Staff's position implicitly includes support for Applicants'
" Alternative Motion to Compel" in which they seek an order from the Licensing Board compelling ACORN to provide adequate responses to Applicants' second and third sets of interrogatories.
The Staff agrees with Applicants that ACORN has unjustifiably ignored Appli-
- cants' second and third sets of interrogatories and the Staff's first set of interrogatories as well.
However, based upon its review of the NRC case law, the Staff finds that there are _ virtually no prior decisions which support Applicants' conclusion that the Licensing Board, under 10 CFR QS 2.707 and 2.718, should impose the severe sanction of striking ACORN's contentions without first taking the intermediate step of issuing an order compelling ACORN to provide adequate responses to the interrogatories which are directed to those contentions.
The provisions of 10 CFR 99 2.707 and 2.718 confer broad authority upon the presiding officer of the licensing boards.
Under 10 CFR 9 2.718, the presiding officer in NRC adjudicatory proceedings has the duty "to conduct a fair and impartial hearing according to law, to take appropriate action to... maintain order" and "to regulate the course of the hearing and the conduct of the participants".
10 CFR 9 2.707, " Default", states that:
On failure of a party to file an answer or pleading with-in the time prescribed in this part or as specified in the notice of hearing or pleading... or to comply with any dis-covery order entered by the presiding officer pursuant to 9 2.740, the Commission or the presiding officer may make such orders in regard to the failure as are just, including, among others, the following:
(a)
Without further notice, find the facts as to the matters regarding which the order was made in accordance with the daim of the party obtaining the order, and enter such ords. as may be appropriate; or (b)
Proceed without further notice to take proof on the issues specified.
Thus, it is clear that 10 CFR 9 2.707 empowers the presiding officer to dismiss a party from a proceeding for that party's failure to comply with a direct order of the licensing board compelling discovery.
Northern States L
4M 95 ih 2:4 5;il p,
3-
=
fPower Company, et al. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298,
/1301(1977); Offshore Power Systems (Hanufacturing License for Floating
' : :y.
. Nuclear Power Plants),,LBP-75-67, 2 NRC 813, 817 (1975); Public Service
/ Electric & Gas Company ( Atlantic Nuclear Generating Station, Units 1&2),
[LSP-75-62,2NRC702,705-05(1975).
Further, a literal reading of the
% language of 10 CFR 99 2.707 and 2.718 arguably could support Applicants'
[conclusionthatunderthesesections,theLicensingBoardshouldstrike n..
pACORN's contentions based on ACORN's failure to comply or object to lawful w
qdiscovery demands, without the Licensing Board first having issued an order
- . 3.*,
fcompellingresponses.O However, in similar circumstances, other licensing b'oards and an appeal board have implied, contrary to Applicants' conclusion,
- ithat the filing of a motion to compel and an order by the licensing board compelling responses is a necessary first step after a party fails to bcomply with discovery requests.
See Pennsylvania Power and Light Company
[(Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613,12 NRC 317
[at322(1980).
According to the Appeal Board, the NRC rules governing
[ discovery attempt to mininize the involvement by the licensing board; at
[the time discovery begins, the Board's leave is not needed to proceed.
ld,.
d 1
s.,
y M The Applicants appear to interpret the phrase " answer or pleading" in
.6 2.707 overbroadly to include answers to interrogatories. The term s1.
" answer" refers to 10 CFR 6 2.705, " Answer", which defines " answer"
' ~
as a statement of "(1) the nature of his defense or other position; (2) the items of the specification of issues he controverts; and (3) whether he proposes to appear and present evidence". Answers to interrogatories do not appear to be within this definition.
l s-l 1
L
\\
-g-k.n
_m
. The Appeal Board specifically_ stated:
"It is only in the event of an objection to a discovery request or a failure of proper compliance that a ' motion to compel' is -necessary,.
10 CFR 6 2.740(f)."
Id.
Even though ACORN has failed to respond t1 Applicants' second and third sets of interrogatories and the Staff's first set of interrogatories, ACORN is not actually in default of any Licensing Board Orders compelling responses to discovery. The Licensing Board's " Memorandum and Order" of April 13, 1981 ordered ACORN 1) to file complete responses by April 30, 1981 to Interrogatories 10 and 129 of Applicants' First Set of Interroga-tories and 2) to supplement its responses to a number of other interroga-tories in Applicants' First Set of Interrogatories, "as soon as the infonnation is developed or obtained".
Memorandum and Order, supra, at 6.
On April 30, 1981, ACORN filed " Supplement to ACORN's Answers to Applicants' First Set of Interrogatories to ACORN and Requests to Produce" (hereafter
" ACORN's Supplement"). ACORN's Supplement contains ACORN's " Supplementary Answers" to Interrogatories 10 and 129.
In accordance with the Licensing Board's Memorandum and Order, supra, in ACORN's Supplement, ACORN also ttated its intention to respond to or supplement its responses to the other interrogatories covered by the Licensing Board's Memorandum and Order, suora, as soon as the information requested "is developed or obtained."
ACORN's Supplement, at 1.
The Staff has not found any NRC cases in which a licensing board actually dismissed an intervenor or its contentions for failure to comply with or object to lawful discovery requests, without first issuing an order i
- - + -
}$f
- ..y Mh 5MT -%
j iME.
l compelling responses.E There are, however, numerous cases in which a y
licensing board dismissed an intervenor for failure to comply with discovery 9Q requests and with licensihg board orders compelling responses to discovery
%$TM Q
requests. See Tyrone, Floating Nuclear Plants, Atlantic, supra.
Even p
where an intervenor failed to appear for a pre-arranged deposition, after
- yf -
counsel for the other parties had travelled great distances for the deposi-m
$h tion, a licensing board was reluctant to grant a motion to dismiss the 4w:
pi intervenor from the proceeding.
See Gulf States Utilities Company (River
[]'
Bend Station, Units 1 and 2), Order Compelling Discovery, October 2,1974.
]
Ty -
In that case, the applicants' counsel filed a Motion to Dismiss the inter-g7 venor on the basis of the intervenor's failure to appear for the deposition zh and the intervenor's history of lack of cooperation.
In considering the 3h applicant's motion to dismiss, the licensing board noted:
..p Notwithstanding the merits of Applicant's present Motion
~-.
to Dismiss, which on the present facts and history of this
~"'
proceeding, appears to merit immediate grantiag by the Board, n
the Board is nevertheless reluctant to take final action now removing Intervenors from further participation in this pro-n
?
ceeding.
Rather the Board will give one further opportunity to Intervenors to demonstrate that they seriously desire to 1
actively participate in this case.
Accordingly, the Board will defer action on the Applicant's Motion to Dismiss but
?
will instead utilize the intennediate sanction of granting the je Applicant's August 16 Motion to Compel Discovery pursuant to
$ 2.740(f) of the Commission's Rules of Practice (10 CFR 2
Part 2)... [ footnotes omitted].
River Bend, supra, at 4-5.
m.'
/
7 One licensing board has stated that failure of an intervenor to answer discovery requests adequately is a sufficient ground for the licensing board to take steps as drastic as dismissal of a contention or of a T.
party from the proceeding.
Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), Memorandum and Order on Scheduling and Discovery Motions, August 24, 1979 (Slip opinion at 7). However, in that case the licensing board did not actually dismiss the intervenor. Rather, the licensing board issued an order compelling the intervenor to comply with the discovery requests.
N'
( 6 3:,
There is no doubt that ACORN's failure to respond to Applicants' and Steff's discovery requests and motions-to compel has raised questions about ACORN's intention to participate seriously in this proceeding and to comply with the ru?es of practice governing this proceeding.
However, consistent with NRC precedent cited above interpreting those rules of practice, the Staff believes that the Licensing Board should give one further opportunity to ACORN to demonstrate that it seriously intends to participate in this proceeding and fulfill its obligations as a participant. Accordingly, the Licensing Board, consistent with NRC precedent, should defer action on Applicants' Motion to Strike, and should grant the Applicants' and Staff's pending motions to compel discovery pursuant to 10 CFR 5 2.740(f).
CONCLUSION Based on the foregoing, the Staff believes that the Licensing Board should defer action on Applicants' Motion to Strike, supra, and should first grant the Applicants' and Staff's pending motions to compel. The Licensing Board should order ACORN to provide adequate responses to the Applicants' second and third sets of interrogatories and the Staff's first set of inter-rogatories within a reasonable time after the Licensing Board's Order.
Upon failure of ACORN to comply with the Licensing Board's Order, it would then be appropriate for the Licensing Board to consider imposing the sanction of strik-ing the contentions which are the subject of any unanswered discovery requests.
Respectfully submitted,
/J1 bAbbN l
Marjorie Ulman Rothschild Counsel for NRC Staff Dated at Bethesda, Maryland this 3rd day of June,1981.
l s
UNITED STATES OF AMERICA' NUCLEAR REGULATORY C0!!!!ISSION BEFORE THE-ATG11C SAFETY AND LICENSIrlG BOARD In the Matter of
)
)
TEXAS UTILITIES GENERATING COMPANY, ET AL.)
Docket No. 50-445
)
50-446 (Couancne Peak -Steam Electric Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER TO APPLICANTS' MOTI0t, TO STRIKE ACORN CONTENTIONS FOR DEFAULT OR IN THE ALTERNATIVE, TO COMPEL RESPONSES TO APPLICANTS' INTERROGATORIES" in the above-captioned proceed-ing 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 3rd of June, 1981:
Valentine B. Deale, Esq. Chairman Dwight H. liocre, Esq.
Administrative Judge West Texas Legal Services
. Atomic Safety and Licensing Board 100 Main Street (Lawyers Bldg.)
1001 Connecticut Avenue, N.W.
Fort Worth, TX 76102 Washington, DC 20036 David J. Preister, Esq.
Forrest J. Remick, Administrative Assistant Attorney General Judge Environmental Protection Divisin Atomic Safety and Licensing Board P.O. Box 12543, Capital Stati c 305 E. Harailton Avenue Austin, TX 78711 State College, PA 16801 Mr. Richard Fouke Richard Cole, Administrative Judge
- 1663-B Carter Drive Atonic Safety and Licensing Board Arlington, TX 76010 U.S. Nuclear Regulatory Commission Washington, DC 205S5 Arch C. McColl III, Esq.
701 Coamerce Street Nicholas S. Reynolds, Esq.
3uite 302 Decevoise & Liberman Dallas, TX 75202 1200 17th Street, N.W.
Washington, DC 20036 Jetiery L. Hart, Esq.
4021 Prescutt Avenue firs. Juanita Ellis Dallas, TX 75219 President, CASE 1426 South Polk Street Dallas, TX 75224 P00R BRIGIlul_
2-3 Atomic Safet:r and Licensing Board Docketing and Service Section (7)*
Pai el*
Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC' 20555 Washington, DC 20555 Atomic Safety and Licensing Appeal Panel (5)
U.S. Nuclear Regulatory Commission Washington, DC 20555-to u in w u h % cL 4 cl R hfie Ulman Rothschild Counsel for NRC Staff t
i
, ~. - - -
r
-m.-n,
, -. -..,., - - -,,..,,. -. - -. -,. ~, - ~,, - - -, -,.. - -,, - - -. - -, - -,, - - -, - -
-