Text

Memorandum Giving Parties Notice of Questions Re Rights of Defaulting Parties to Be Heard at 800320 Prehearing Conference.Briefs on Issue May Be Filed by 800317
	ML17138B141
Person / Time
Site:	Susquehanna
Issue date:	02/26/1980
From:	Bechhoefer C; Atomic Safety and Licensing Board Panel
To:	;
References
	NUDOCS 8003130094
	Download: ML17138B141 (21)
	v • d • e

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman Dr. Oscar H. Paris Glenn O. Bright

~o gC+ ~q~

q>@cg5~

<eqo,>

ryr In the Matter of PENNSYLVANIA POWER & LIGHT COMPANY and ALLEGHENY ELECTRIC COOPERATIVE, INC.

(Susquehanna Steam Electric Station, Units 1 and 2)

)

Docket Nos.

50-387

)

50-388 MEMORANDUM (9 9 9 yy9999 The parties to this proceeding are put on notice that, at the oral argument.to be heard at the prehearing conference on March 20,

1980, the Board will consider, inter alia, the follow-ing question (which is relevant to the Applicants'otions against SEA and

ECNP, and suggested by the Staff's answers to those motions):

Given the holdings of the Appeal Board and Commis-sion in Prairie Island,l/ may a party which has defaults zn responccxn8 to diac'o'ltery. on an issue'"

raised by it be given lesser participational rights (such as cross-examination) on that issue than a party which did not raise the issue?

.May that e

t 1/

Northern States Power Co. (Prairie'sland Nuclear Generating Plant, Units 1 and

, ALAB-244,-8 AEC 857 (1974),.reconsid-eration denied, ALAB-252, 8 AEC 1175'1975);

affirmed, CLI-75-1, 1 NRC 1 (1975).

8008 28009$

defaulting party be given less participational rights on its own issue than it has on issues raised by, others or the Board?

In answering this question, assume that the issue on which there has been a default is nevertheless litigated in the proceeding

.and -that the party which has defaulted on that issue remains in

.the proceeding.

Although it will be sufficient for parties to address this

-question at the conference, any party

~ma

, ifit wishes, file an additional brief. If filed, a brief must reach: us by Monday, March 17, 1980.

FOR THE ATOMIC SAFETY AND LICENSING BOARD C ar es Bec oe er, C airman Dated at Bethesda,

Maryland, this 26th day of February, 1980.

U ED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 0

02/25/80 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

'n the Matte of PENNSYLVANIA POWER ALLEGHENY ELECTRIC (Susquehanna Steam Units 1

and 2)

)

AND LIGHT CO-

)

COOPERATIVE, INC.

Electric Station,

)

Docket Nos.

50-387 50-388 gQ gyC<

o~

Q4~'~~i,opal ~ y gQa " @A "v/

i V')

NRC STAFF'S ANSWER TO APPLICANTS'OTION TO PROHIBIT ENVIRONMENTAL COALITION ON NUCLEAR POWER FROM PARTICIPATING IN LITIGATION OF CERTAIN CONTENTIONS By a filin~ dated February 4, 1980, the Applicants moved the Licensing Board t'o prohibit Environmental Coalition on Nuclear Power (ECNP) from participating in any way (including presentation of direct testimony and conducting cross-v examination) in the litigation of Contentions 1,

2 and 3.

As grounds for "

their request, Applicants state that ECNP has "failed properly to respond" to interrogatories addressed to Contentions 1, 2.and 3.

For the reasons set forth below, the Staff supports that part of the Applicants'otion which seeks to prohibit direct testimony but opposes:that portion.w@ch:seeks to prohibit cross'examination by ECNP.

Prohibi tin Direct Testimon In its Memorandum and Order on Discover Motions II (DiscoYery Order II) dated October 30, ]979 (a,t 19), the. Boer.'d.stated that ECNP's.pr d'or'esponse to discovery

A licants'otion to Prohibit Environmental Coalition on Nuclear Power from Partici atina in Litization of Certain Contentions and Motion to Com el dated February 4, 1980.

Applicants also moved the Board for an order compelling adequate answers to certain of their interrogatories.

The Staff takes no position on that motion.

requests of the Staff and the Applicants were deficient and that dismissal of ECNP (and other intervenors) and. all of its contentions from this proceeding could

- potentially be granted on that basis.

However, it grante'd ECNP (and other inter-venors) an extension of time in which to respond.

In addition the Board emphasized that:

If an intervenor fails ro erl to res ond in a timel fashion... it will not be ermitted to resent an direct testimon on that contention.

emphasis in original No further order of this Board to this effect will be required.)

Id. at 19.

In i'ts Order Den in Re uests of ECNP dated December 6, 1979 (at 9), the Board extended to January 18, 1980, the time within which discovery requests on wholly environm ntal contentions (those numbered 1, 2, 3, 4, 14, 16. 17 and

18) must be answered.

No further extensions of time have been granted.

ECNP filed a document entitled ECNP's Res onses to Board's Memorandum and Order on Discover Motions II on January 18, 1980.

At page 2 of that document ECNP stated that it "has nothing to add to its earlier responses to Staff interrogatories."

Therefore, ECNP's responses to the majority of the Staff's discovery requests continue to be deficient.

Because of its failure to properly respond in a timely fashion to the Staff's discovery requests, and regardless of the quality of its responses to Applicants'iscovery

requests, by the terms of the Board's Order EC,iP is automatically prohibited from presenting direct testimony on Contentions 1,

2 and 3. For that reason alone, if for no other, the Staff 3/

believes that part of the Applicants'otion which seeks to prohibit direct testinany by ECNP on Contentions 1,

2 and 3, although it may be unnecessary, should b

granted.

By the terms of the Board's Order ECNP is also automatically prohibited from presenting direct testimony on Contention 18.

Prohibi tin Cross-'Examination As the Applicants noted in their motion, since many intervenors seek to make their case through cross-examination rather than by introducing direct evidence, preventing the introduction of direct evidence may be no sanction at all.

Notion

'I at 4.

However, we do not believe that a prohibition of cross-examination is appropriate at this time."The ends of discovery are to prevent surprise 4/

in the course of the proceeding.

'Discover" Or'der'II't 5-6,'10-1T.

At this stage of the proceeding when the-'scope of cross-examination is not known, it cann'ot be told if ECNP should be prohibited from asking any question because it is based upon a matter that it, should have revealed in discovery to prevent surprise.

Thus, any efforts to bar some or all of the Intervenor's cross-examination should await the hearing, and should be made only upon a showing that the ECNP's cross-examination is grounded upon information which should have been provided in response to the Staff's or Applicants'iscovery requests.

Testing of evidence through cross-examination is the hallmark of the adjudicatory process.

In Northern States Power Co.,'he Commission emphasized the 5/

imporwnce of cross-examination by affirming that intervenors can cross-examine on contentions they had not raised.

In this proceeding all parties need respond As the time to respond to discovery requests on safety issues has been post-4/

~

poned,. it appears" that dismissal from the proceeding may also be too. severe a sanction now.

See Discover Order II, at 6 and 10.

Northern States Power Com an (Prairie Island Nuclear Generating Plant, 5/

Units 1 and 2

CLI-75-1, 1

NRC 1 (1975).

to discovery only on contentions they raised, and other procedures are provi'ded to deal with surprise at hearing.'Discove 'Order'II; at.15-19.

It would be anomalous to say that one who had;.not raised a contention on which it had to respond to discovery could cross-examine on that contention.

but one who did raise the contention may not cross-examine even if no element of surprise were present.~

Sanctions should be tailored with the ends of the discovery rules and the purposes of cross-examination in mind.

Cross-examination, generally, should not be prohibited on a 'failure to meet discovery requests.~

Conclusion For the reasons discussed

above, the Staff believes that part of the Applicants'otion which seeks to prohibit direct testimony by ECNP on Contentions 1, 2 and 3 should be granted and that part which seeks to prohibit cross-examination by ECNP on Contentions 1,

2 and 3 should be denied.

Respectfully submitted, Dames M. Cutchin, IV Counsel for NRC Staff Dated at Bethesda, Maryland this 25th day of February, 1980 Cross-examination, as indicated in Northern States Power Co..

~so ra, is primarily for the benefit of the, trier of fact, not the examiner.

See also Cleveland Electric I1luminatin

.Co.

Perry Nuclear Power Plant, Units 1

and 2, ALAB-443, 6 NRC 741, 752-754 1977).

should be granted and that part which seeks to prohibit cross-examination by SEA on Contention 1 should be denied.

Respectfully submitted, Dated at Bethesda, Maryland this 25th day of February, 1980 James M. Cutchin, IV Counsel for NRC Staff

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD.

25/80 In the Matter of PENNSYLVANIA POWER AND LIGHT CO.

ALLEGHENY ELECTRIC COOPERATIVE, INC..

)

(Susquehanna Steam Electric Station, Units 1 and 2)

Docket Nos. 50-387 50-388 NRC STAFF'S ANSWER IN SUPPORT OF APPLICANTS'OTION TO DISMISS CITIZENS AGAINST'NUCLEAR DANGERS FROM THIS PROCEEDING By a fiiing J'ated February 4,

1980 the Applicants moved the Licensing Board for an order dismissing intervenor Citizehs Against. Nuclear Dangers (CAND) as I

a party for its continued failure to comply with the discovery orders of the Board.

For the reasons set forth below and in the NRC Staff's motion of September 25, 1979, the NRC Staff believes that the Applicants'otion"should be gr'anted.

CAND was admitted as an Intervenor in this proceeding by the Board's ~Secia1 Prehearin Conference Order, dated March 6, 1979.

(LBP=79-6, 9 NRC 291).

In that Ordor the. Board also ruled on contentions and established a schedule for discovery.

The Board designated May 25,

1979, as the last day for submission of first-round discovery requests and specified that responses to first-round discovery requests must be filed by June 29, 1979.

9 NRC at 327.

~ Applicants'otion to Dismiss Citizens Against Nuclear Dangers from this

~d 1 t d

F 1

y 4.

1980.

7 1

The Staff's first round discovery requests of CAND were timely served by-mail on May 21, 1979.

They related to specific contentions which were admitted by the Board as suitable for litigation in this proceeding.

The Staff requested infornation concerning the factual bases for CAND's contentions and the identities and addresses of persons to be called. by CAND as expert witnesses.

CAND also" was asked to identify and produce documents to be used by it in examining and cross-examining witnesses.

The Applicants also served interrogatories on CAND.

Follovring receipt on June 20.

1979 of a CAND document j which the Staff'on-sidered to be totally unresponsive to its legitimate discovery requests, the Staff on June 28, 1978 fi,led a motionfor an order compelling CAND to fully and properly respond to the Staff's discovery'requests..Applicants had filed a similar motion on June 27, 1979.

In its Yamorandum and Order on Schedulin and Discover Motions I (Discovery Order I) dated August 24, 1979 the Board found (1) that.CAND had failed to respond to discovery requests filed in accordance with the Commission 's Rules of Practice and this Board's Order of'arch 6, 1979, (2) that CAND had failed to seek a protective order with regard to the discovery requests (or alternatively, if the June 16, 1979 "replies" be considered as seeking a protective order, that no valid basis for such an order had been demonstrated),

and (3) that the Citizens A ainst Nuclear Dan ers'e 1ies to the Interrogatories of the NRC Staff and the Ao licants an Other Matters fi e une HRC Staff's Motion for an Order Comoellin Citizens A ainst Nuclear Dan ers to Respond to the Staff's Discover Requests dated June 28, 1978.

June 16, 1979 "replies" constituted a failure to answer or respond under 10 CFR 2.740(f).

Id. at 11.

The Board granted the Staff's motion to compel discovery.

Id. at 8.

Moreover, the Board explained the forms 'and purposes of. discovery in an NRC proceeding and noted that discovery always entails some burden and expense a party must determine what information it possesses and disclose it.

Comission proceedings are not to become the setting for "trial'by suprise."

Id. at 6.

The Board also explained that extensions of time for responding can be. obtained for "good cause" shown and that relief from harrassing, irrelevant, unduly burdensome or embarrassing discovery is available.

Id. at 6.

Finally the Board warned of the serious consequences--including dismissal 'of a contention or of a party from the proceeding that can. result from failure to properly respond to discovery requests.

Id. at 7.

In spite of 'having had benefit of the Board's explanation of the purpose of the discovery process and the duty of an intervenor to disclose the bases for its contention, an extension of time in which to.reply and fair warning of the possible consequences of a failure to adequately

respond, CAND filed a paper dated September 10, 1979 that, although it was timely filed, neither adequately responded to the Board's directive nor the Staff's discovery requests.

The Board had directed CAND to respond fully and properly (or, as, appropriate, to file particularized, specific objections) to the Staff's discovery requests Citizens Against Nuclear Dangers Res onse to the Licensin Board Directive, Contained within Addi i of May 21,

1979, by no later than fourteen (14) days from the service of its Order.

Discovery. Order I at 11.-

CAND did not answer the Staff's interrogatories separately or fu11y.. It'did not submit its answer under oath or affirmation.

Nor did CAND, in lieu of answering=

them. file particularized and specific objections to any of the interrogatories.

CAND did not deal with the merits of the Staff's.'interrogatories.

Tt merely labeled:the interrogatories "outlandish," said it presently has no answers and made equivocal statements:.about its plans to obtain expert witnesses to answer them'nd about its plans for participating in the hearing sessions.

As the Board 1

clearly pointed out, such general "evasive" objections to discovery are not acceptable.

Id. at 9.

In'iew of CAND's continued failure to respond to the discovery requests, notwithstanding the Board's order to do so in Discovery Order I, the Staff moved on Septembe'r 25, 1979 for the dismissal of CAND and the contentions solely sponsored by it from the proceeding.

On October 10, 1979, Applicants filed an answer in support of the Staff's motion.'n October 30, 1979, the Board issued its Memorandum and Order on Discover Motions II, LBP-79-31, 1O NRC

("Discovery Order II").

There the. Board observed that the responses filed by CAND and the other intervenors si'nce Discovery Order I were "the same type of generalized objections which, in, Discovery [Order] I, we indicated were inadequate."

Discovery Order II, sl;ip op. at 6.

The Board warned that, given the deficiencies in the responses

of the intervenors (including CAHD) to the discovery requests served by Staff and Applicants, "the relief now being sought by the Applicants and Staff--

dismissal of CAND, ECNP and SEA (and all their contentions) from'this proceeding

- could potentially be granted...".

Id. at 10.

The Board,

however, was of the view that "dismissal of any of the intervenors or their'contentions at this time would not be warranted."

Id. at 11, emphasis added; Nevertheless, while granting the intervenors one more opportunity to pip ittit p

i Pd

.tt t d

~

dttt "it ~ttti

~ece~sare that the intervenors respond in a timely fashion to the discovery obligations which still remain."

Id., emphasis in original.. The Board suspended all discovery obligations with respect to.health and safety contentions, granted an extension of time until December 14, 1979 (later extended further to January 18, 1980), for responses to 'outstanding discovery requests on environmental contentions, and once again directed all parties "to respond'-by December 14.

1979 to the discovery requests on the environmental contentions."

Id. at 18-19.

The Board p

ruled that'"[i]fany intervenor fails properly to respond in a timely fashion to the discovery as outlined in paragraphs 2 and 3, it will not be ermitted to

resent, an direct testimon on that contention.

(No further order of this Board to this effect will.-be required)."

Id. at 19.

Finally, the Board cautioned that "ffjailure'o respond properly, in addition to precluding an intervenor from presenting direct testimony, ma be rounds for dismissin that intervenor (as

'istinguished from its contentions) from the roceedin (emphasis in original)

Id. at 20.

I December 11,

1979, CAND filed a document entitled Citizens A ainst Nuclear

.n ers Petition for a Government In uir; Re lies to Discovery Order; Motions

~ Interrogatories Before the Atomic Safet and Licensin Board

{CAND Petition),

) which CAND purportedly responded to the directives of Discovery Order II.

LND again provided no responses to the outstanding interrogatories, and this ime proposed that in lieu of its replying to the discovery requests, "the Board

'.ilize its extraordinary power of subpoena and pose every applicable specific iscovery question formulated by the NRC Staff and the Applicants to be answered y the appropriate qualified government official at the state and federal level ho have first-hand expert knowledge of these matters in the course of their overnment service."

CAND Petition at S.

CAND offered to "accept these expert actual responses in lieu. of their own replies and as the basis f'r their testi-ony and accompanying, background information."

Id.

n January 4, 1980, the Board issued a

Memorandum and Order Denyin CAND Petition nd Motions in which it found the relief requested by CAND "to be unwarranted" r

nd denied it* "in its entirety."

Id. at 1.

The Board noted that CAND's tecember ll, 1979 filing "alternatively must be considered as another deliberate

.ttempt to avoid the obligations of discovery."

Id. at 1-2, footnote omitted.

he Board rejected CAND's request that government officials be subpoenaed and uled that.

even if such officials were to be called to testify by the Board,

'that eventuality would sti11 not relieve CAND of its obligation to inform the iarties of the bases for its own contentions."

Ed. at 3. footnote omitted.

CAND's next filing, dated January 11, 1980, was a Motion for Reconsideration of Motions before the Licensin Board.

In that filing, CAND still provided no answers to the outstanding interrogatories.

On January 16, 1980, the Board issued another Order (accompanied by a telegram to CAttD containing essentially the same information) in which it denied CAND's motion, and reminded CAND of its discovery obligations and possible sanctions against CAND for its continued refusal to meet those obligations.

Under the procedures of this Comission it is proper to dismiss a party for E

failure to comply with discovery requests.

The foregoing chronology alone provides sufficient grounds for dismissing CAND from this proceeding.

In view of CAND s total disregard of its responsibilities in this proceeding, any lesser sanction would be insufficient.

CAND has disregarded no less than five explicit Discovery Orders of the Board without offering any valid justification.

To allow a party to so ignore the Board's authority without sanction is unfair to the other parties and makes a mockery of the Comnission's discovery and

/

hearing process.

CAND should be dismissed as a party to this proceeding.

Thus the Staff believes that the motion to dismiss CAND should be granted.

Respectfu'1 ly submitted, Dated at Bethesda,

Maryland, this 25th day of February, 1980.

+4V

~

James M. Cutchin, IV Counsel for NRC Staff

~ See:

10 C.F.R. 2.707; Northern States Power Co.

(Tyrone Energy Park, Unit 1),

5/

LBP-77-37, 5 HRC 1298 (1977; Offshore Power S stems (Manufacturing License for Floating Nuclear Power Plants),

LBP-75-67, 2

NRC 813 1975); Public Service Electric and Gas Co. (Atlantic Nuclear Generating Station, Units 1 and 2, LBP-75-62, 2

NRC 702, 705 (1975).

'JNITED'STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Natter of-PENNSYLVANIA POWER AND LIGHT CO.

)

ALLEGHENY ELECTRIC COOPERATIVE, INC.

)

{Susquehanna Steam Electric Station, Units 1 and 2)

Docket Nos. 50-387 50-388 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO APPLICANTS'OTION

'O PROHIBIT ENVIRONMENTAL COALITION ON NUCLEAR POWER FROM PARTICIPATING IN LITIGATION OF CERTAIN CONTENTIONS",

"NRC STAFF'S ANSWER TO APPLICANTS'OTION TO PROHIBIT SUSQUEHANNA ENVIRONMENTAL ADVOCATES 'FROM PARTICIPATING IN THE LITIGATION OF CONTENTION 1", and "NRC.STAFF'S ANSWER IN SUPPORT QF APPLICANTS'OTION TO DISMISS CITIZENS AGAINST NUCLEAR DANGERS FROM THIS PROCEEDING" in the above-captioned proceeding 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 interhal mail system, this 25th day of February, 1980:

~

Char les Bechhoefer, Esq.,

Chairman*

Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington,.DX.

20555 Mr. Glenn 0. Bright+

Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Dr. Oscar H. Paris*

Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Jay Silberg, Esq.

Shaw, Pittman, Potts and Trowbridge 1800 M Street, N.W.

Washington, D.C.

20036 Or. Judith H. Johnsrud Co-Director Environmental Coalition on Nuclear Power 433 Orlando Avenue State College.

PA 16801 Mr., Thomas M. Gerusky, Director Bureau of Radiation Protection Department of Environmental Resources Commonwealth of Pennsylvania P.O.

Box 2063 Harrisburg, PA 17120 Ms. Colleen Marsh Box 538A, RD-.";4 Mountain Top, PA 18707 Mrs. Irene Lemanowicz, Chairperson The Citizens Against Nuclear

'angers P.O.

Box 377 RDfl

Berwick, PA 18503

Susquehanna Environmental Advocates c/o Gerald Schultz, Esq.

500 South River Street Milkes-Barre, PA 18702 Atomic Safety and Licensing Appeal Board Panel*

U.S. Nuclear Regulatory Commission Mashington, D.C.

20555 Atomic Safety and Licensing Board Panel*

U.S. Nuclear Regulatory Comnission Mashington, D.C.

20555

. Docketing and Service Section*

Office of the Secretary U.S. Nuclear.Regulatory Commission Mashington, D.C.

20555 Bryan A. Snapp, Esq.

Pennsylvania Power

& Light Company Two North Ninth Street Allentown, PA 18101 Mr. Robert M. Gallo Resident Inspector

. P.O.

Box 52 Shickshinny, PA 18655 James M. Cutchin, IV Counsel for NRC Staff

.

ML17138B141

Text

Navigation menu

Search