ML17138B232
| ML17138B232 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 04/11/1980 |
| From: | Bechhoefer C, Paris O Atomic Safety and Licensing Board Panel |
| To: | CITIZENS AGAINST NUCLEAR DANGERS, Environmental Coalition on Nuclear Power, PENNSYLVANIA POWER CO., SUSQUEHANNA ENVIRONMENTAL ADVOCATES |
| References | |
| LBP-80-13, NUDOCS 8004230111 | |
| Download: ML17138B232 (21) | |
Text
UNITED, STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman Dr. Oscar H. Paris Glenn 0. Bright LBP-80-13
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In the Matter of PENNSYLVANIA POWER 6c LIGHT COMPANY and ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam Electric Station, Units 1 and 2)
Docket Nos.
50-387 50-388 SECOND PREHEARING CONFERENCE ORDER April 11, On February 4,
- 1980, the Applicants in this operating license proceeding filed three separate motions.
The first two sought to prohibit two of the intervenors, respectively (Susquehanna Envi-ronmental Advocates (SEA) and Environmental Coalition on Nuclear Power (ECNP)) from participating in the litigation of certain contentions which they had sponsored.
The third motion sought to dismi'ss another intervenor, Citizens Against Nuclear Dangers (CAND),
from this proceeding.
Each of those intervenors filed a response opposing the motion against it.
The NRC Staff supported the motion against CAND. It supported in part but opposed in part'he relief sought against the other,two intervenors.
Because of the severity of the sanctions-requested and the effect on the proceeding which would ensue should we grant the 80048 80 'll)
2 motions in their entirety, we convened a prehearing conference to hear oral argument on these motions, as well as to consider others matters (such as scheduling) which might be pertinent to the course of this proceeding.
Order Setting Prehearing Conference, dated February 22, 1980 (published at 45 Fed.
Reg.
13239 (February 28, 1980)).
The conference took place at Wilkes-Barre, Pennsylvania on March 20-21, 1980 (Tr. 375-757).
As directed,
- SEA, ECNP, and CAND, as.well as the Applicants and Staff, each participated.
The Commonwealth of Pennsylvania also did so.
(Ms. Marsh, who was invited but not directed to participate, elected not to do so.)
All three of the Applicants'otions were founded upon asserted deficiencies in each of the responses'f the intervenors to discovery orders previously issued by this Board.
As we announced at the, conference, we are denying the motions directed against SEA and ECNP, in part as a result of their commitments to provide supple-mental answers to discovery requests by May 1, 1980.
(Our Memo-randum of March 27, 1980, outlined the scope of the material which should be provided by that date.)
We also are denying the motion to dismiss CAND but are imposing certain alternative relief against that party (including a requirement to submit answers to certain discovery requests by May 1, 1980).
Following is an explanation of these actions, as well as other rulings which we announced at the conference.
The motions directed against SEA and ECNP each were premised on an asserted failure of those parties to comply with a provision of our Memorandum and Order on Discovery Motions (II), LBP-79-31, 10 NRC 597 (October 30, 1979).
In that Order, we relieved those parties of certain discovery obligations but directed them to respond to other discovery requests by December 14, 1979 (later extended to January 18, 1980).
We then provided that, if "~an intervenor fails ro erl to res ond in a timel fashion to
[certain discovery requests], it will not be ermitted to resent an direct testimon on that contention."
10 NRC at 606.
We also provided that we would not dismiss a contention solely because of the default of its sponsor,but that such default could be taken into account by us in considering motions for summary disposition and, in addition, could serve as grounds for dismissal of the intervenor from the proceeding.
Id. at 607.
SEA and ECNP each filed responses to the Applicants'nter-rogatories.
The Applicants claimed that SEA's responses to the interrogatories on Contention 1,
and ECNP's responses to the interrogatories on Contentions 1, 2, and 3, were inadequate.
(SEA and ECNP were each sponsors or co-sponsors of the contentions in question.)
The Applicants claimed that, as a result, and in accord with our October 30 Order, SEA and ECNP should not be permitted to present a direct case on those contentions.
In
addition, reflecting our earlier ruling that we would not dismiss any contention solely for the default of its sponsor, the Appli-cants asserted that SEA and ECNP should each be prohibited from participating in any way in the litigation of the contentions as to which each had failed to properly answer interrogatories, including undertaking cross-examination on these contentions either on its own behalf or on behalf of others.
The Applicants sought this additional sanction on the basis that SEA and ECNP had not made a good faith attempt to provide answers to the particular interrogatories and that, since intervenors "typically try to make their cases by cross-examination,"
prohibiting SEA and ECNP from introducing direct testimony "amounts to little, if any, sanction."
SEA and ECNP each disputed the assertion that they had not made good faith attempts to answer the interrogatories in question.
The Staff believed that they had not adequately answered the inter-rogatories in question and should not be permitted to present a
direct case on the particular contentions, but that the facts did not warrant imposition of the additional limitations on cross-examination sought by the Applicants.
1.
Before turning to the question of the adequacy of SEA's and ECNP's responses to interrogatories, we first consider whether we have authority to limit a party's cross-examination on an issue by reason of that party's failure to respond adequately to discovery.
In other words, assuming (although not deciding) that a worst-case default situation existed, could we grant the relief requested by the Applicants7 The Applicants,had not addressed this question in their motions.
But we posed it to the parties by our Memorandum of February 26, 1980.
Our inquiry in this regard was prompted. by certain statements of the Staff in its responses to the Applicants'otions, and by the holdings of the Appeal Board and Commi.ssion in Northern States Power Co. (Prairie Island Nuclear Generating
- Plant, Uni.ts 1 and 2), ALAB-244, 8 AEC 857 (1974); reconsideration
Those deci.sions held that, in the particular case, it was error for the Licensing Board to have precluded an intervenor from conducting cross-examination on contentions raised by other intervenors or by the Board itself.
We therefore presented the following question which was to be addressed at the prehearing conference (footnote omitted):
Given the holdings of the Appeal Board and Com-mission in Prairxe Island, may a party which has defaulted in responZxng to discovery 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 defaulting party be given less participational rights on its own issue than it has on issues raised by others or the Board?
Although each of the intervenors (and the Commonwealth of Pennsylvania as well) opposed imposition of the sanctions sought by the Applicants, the Applicants and Staff were the only parties explicitly addressing this legal question.
Both of them took the position that Prairie Island precluded the prohibition of cross-examination by an intervenor only as a matter of "general practice," that it did not deal with a situation where sanctions against a party were warranted, and accordingly that it did not prevent us from imposing the requested sanction (Tr. 393, 416).
The Applicants referred to 10 CFR
$ 2.707 ("Default") as authority for such sanctions, noting accurately that that rule had not been mentioned in the Prairie Island decisions.
They cited as precedent the Appeal Board's decision in Northern Indiana Public. Service Co.
(Bailly Generating Station, Nuclear 1), ALAB-224, 8 AEC 244 (1974).
In ~Balll, the Licensing Board had required that the Intervenors commence their cross-examination of the Applicant's and Staff's witnesses on a given date.
The Intervenors objected, because of a substantial delay in their receipt of certain infor-mation 'from the Staff which they had sought through discovery.
(The Intervenors had apparently already received much information
~0 f
through discovery from the Applicant.)
Nonetheless; the Board ruled that they should initiate cross-examination on the specified date but would be given an opportunity to re-call and cross-examine the Applicant's and Staff's witnesses, to present new I
- evidence, and to add new contentions after they had received
and reviewed the documents sought from the Commission.
If the intervenors declined to participate on the specified date, how-
- ever, they would lose their opportunity to conduct cross-examination at a later date.
8 AEC at 250.
The Intervenors in fact did not cross-examine on the specified date and literally walked out of the hearing.
They were accordingly barred from further cross-examination, and the Appeal Board upheld this sanction.
From ~Baill, it is clear that a licensing board has authority in some circumstances to cut off a party's right to conduct cross-examination on its own contentions.
But the ~Baill facts are quite distinguishable from those with which we are Paced here In.~Balll, the Licensing Board in eHect established terms and conditions for the conduct of cross-examination.
When those terms and conditions were not adhered to, the right to cross-examination was forfeited or waived.
- Here, however, the asserted default has nothing to do with the conduct of cross-examination.
It arises from asserted deficiencies in responding to discovery an entirely discreet element of trial preparation.
Furthermore, the ~Balll decision predated the Prairie Island decisions.
Under Prairie Island, restriction of an intervenor from cross-examination of witnesses on its own contention would produce rather anomolous results: it would not bar that intervenor from cross-examination on the contentions,. of others; and it would not restrict other intervenors from cross-examination on the defaulting intervenor's contentions.
As the Commission stressed in Prairie Island meaning-ful public participation in NRC's adjudicatory process i.s of fundamental importance.
In upholding the ruling of the Appeal Board permitting an intervenor to conduct cross-examination on contentions raised by other parties or by a licensing board, it observed that such participation "is a vital ingredient in the open and full consideration of licensing issues and in establishing public confidence in the sound discharge of the important duties which have been entrusted to us."
CLI-75-1, ~su ra, 1
NRC at 2.
We, of course, have an obligation to assure the development of an adequate decisional record (10 CFR Part 2, Appendix A, V) and, in doing so, to permit "such cross-examination as may be required for full and true disclosure of the facts" (10 CFR 52.743(a)).
Given the importance of cross-examination to the Commission's adjudicatory process, and given the importance of the issues we are called upon to decide, we would be most reluctant to restrict at the outset of a proceeding, prior to any evidentiary sessions, any party's right to conduct cross-examination.
Particularly is this so in a case where, as here, the reason for the sought restric-tion (unlike in ~Baill ) bears no relationship to the party's con-duct of cross-examination.
We need not decide whether a default in discovery obli-gations could ever justify restriction or elimination of a party' right to conduct cross-examination.
Suffice it to say, we do not regard it appropriate here.
For neither SEA nor ECNP can be
said to have engaged in conduct amounting to default under 10 CFR 52.707.
We turn now to that question.
2.
As we previously stated, the Applicants premised their requests for sanctions against SEA and ECNP on the claim that those parties had not made a "good faith" attempt to provide answers to specified interrogatories.
SEA and ECNP did, however, provide answers to some interrogatories to which no objections have been lodged.
Moreover, in no instance did either one outrightly refuse to answer any interrogatories.
What they did was to provide in-complete or ambiguous answers in a few instances or, in the case 1
of SEA, to file a motion for a protective order without providing any justification other than statements we had earlier'uled to be inadequate to support such an oxder.
SEA and ECNP each claim that, for.the most part, the objected-to responses to interrogatories reflect the paucity of funding available to them or the lack of an experienced legal counsel to draft the responses.
We see no reason for not accepting that claim.
Moreover, bearing in mind the information in certain areas available to the intervenors, some of the incomplete or ambiguous answers must be deemed to be adequate.
Finally, both SEA and ECNP expressed a willingness to supplement or reanswer interrogatories where earlier answers were determined to be inadequate.
10-It is true, however, that some of the answers provided by SEA and ECNP are inadequate.
Ve discussed the deficiencies with the various parties at the prehearing conference.
In view of our responsibility to assure the development of an adequate
- record, and in view of the expressed willingness of SEA and ECNP to supplement their answers~
we determined that none of the
'I sanctions requested by the Applicants should be imposed'at this time.
Because issuance of the FES by the Staff has again been delayed, until about mid-June, 1980 (Tr. 465),
we determined that SEA and ECNP should be afforded additional time to supple-ment their earlier answers.
At the conference, the parties agreed that the supplemented answers should be filed by May 1,
- 1980, and we concurred in that agreement (Tr. 548, 552-54, 585-88, 716).
Our Memorandum of March 27, 1980 outlined the additional information which should be supplied by May 1 by SEA and ECNP.
In declining to impose the sanctions sought by the Applicants against SEA and
- ECNP, we were motivated in part by what appeared to us to be good faith attempts to respond to rather complex questions.
In sharp contrast to those good faith
- attempts, CAND's responses to discovery requests represent the other side of the coin.
Both in reply to.the inauiries them-1/
21 selves and to subsequent orders of this Board CAND's res-I ponses have thus far amounted to no more than blatant refusals to answer.
CAND's filings have thus far provided no substantive answers to any inquiry, and they have also failed. to include par-ticularized, specific objections to questions which CAND has declined to answer.
See CAND "responses" or "petitions" or "motions" dated June 16,
- 1979, September 10,
- 1979, December 11,
- 1979, and January 11, 1980.
" S'ee al'so CAND's "motion" dated February 18, 1980, filed in response to the Applicants'ebruary 4,
1980 dismissal motion.
1/
Staff's First Round Discovery Requests, dated May 21, 1979;
= Applicants'irst Set of Interrogatories, dated May 25, 1979.
These 'requests were filed within the time frame established by our Special Prehearing Conference Order of March 6,
- 1979, LBP-79-6, 9
NRC 291, 327.
2/
Memorandum and Order on Scheduling and Discovery Motions, dated August 24, 1979; Memorandum and Order on Discovery Motions (II),
LBP-79-31, 10 NRC 597 (October 30, 1979);
Memorandum and Order denying CAND Petition and Motions, dated January 4,
1980; Order dated January 16, 1980 (and telegraphic communication of the substance of such Order, also dated January 16, 1'980).
It was such failures to comply with the Commission's discovery requirements, as well as the orders of this Board, which undergirded the Applicants'otion (which was supported by the NRC Staff) to dismiss CAND from the proceeding.
The'Appli-cants pointed out that CAND has had more than 8 months in which to respond to discovery requests, and it has disregarded 5 expli-cit Board orders without valid justification.
The Staff added that it would be unfair to the other parties to allow CAND to ignore the Board's authority without sanction, and that any sanc-tion less 'than dismissal would, be insufficient.
At the prehearing conference, the Applicants and Staff reiterated their belief that CAND was in default and deserved to be dismissed from the proceeding (Tr. 694, 698).
The CAND spokes-man provided a lengthy explanation of that group's actions (Tr. 646B-692), in which he indicated, intei 'alia, that he had not fully comprehended NRC procedures nor fully understood this Board's orders (Tr. 682,
- 684, 686).
In response to questioning by the
- Board, he committed to "answer to the best of our ability the interrogatory questions prior to May 1st, if we are allowed to do so, in accordance with what has transpired yesterday and today, and we will take your advice to clarify" (Tr. 685).
SEA supported CAND by pointing out that CAND was representing the citizens who live nearest the plant and that it was participating without benefit of counsel (Tr. 713-'714).
We cannot disagree with the Applicants and Staff that CAHD's performance to date in this proceeding
- would, on the basis of rules, precedents, and practice, fully warrant its dismissal.
We so advised CAND at the conference (Tr. 659).
We also acknow-ledge that a burden will be placed on the Applicants and Staff if CAND is allowed to commence its response to discovery at this late date (see Tr. 694-698).
Xn another time and place we probably would have dismissed CAND long ago; but as we indicated during the prehearing conference, our present thinking is influenced by the accident last year at TMI-2, only some 60 air miles from Susquehanna (see Tr. 563).
We are inclined to be lenient with local citizen groups that seek to participate as representatives of concerned individuals who live or work near the facility, in spite of the stridency and artlessness of their pleadings.
We also believe, in principle, that the record in a proceeding can be made more complete, and the Board assisted in reaching a fair and sound decision, by the full participation of interested citizens.
Two environmental con-
- tentions, and part of another, are solely sponsored by CAND.
Dis-missal of CAND would likely considerably reduce effective citizen participation in the resolution of those issues.
- Further, as indi-cated earlier, the evidentiary hearing has been delayed through no fault at all of any of the intervenors.
Guided by these considera-tions and concerns, we decided to deny the Applicants'otion to dismiss CAND.
But to reduce the burden which this ruling will impose upon the Applicants and Staff, and as a sanction against
0 CAND s earlier behavior, we have limited its sponsorship of environmental contentions (and hence its presentation of a direct case) to those as to which it is the sole sponsor.
See our Memo-
'/
randum dated March 27, 1980 3/
We accept in good faith CAND's commitment to respond fully to discovery requests on those contentions specified in our March 27, 1980 Memorandum.
But we admonish CAND to read care-
~full and thou htf'ull 'all of our future orders and memoranana, zn an effort to avoz.
further misunderstandings.
Xn the contentions which accompanied its intervention peti-
- tion, ECNP originally sought to put into issue both the quantities of various isotopes which would be released throughout the uranium fuel cycle and the health effects of such releases.
We ruled, in our Special Prehearing Conference Order of March 6, 1979, LBP-79-6, 9 NRC 291, that the quantities of all the isotopes named by ECNP except for Radon-222 were specified by Table S-3 of 10 CFR
$51.20 and, therefore, only the quantities of Radon-222 could be litigated.
We further ruled that the health effects of all of the isotope releases could be litigated.
We reformulated ECNP's contention to accord with these rulings and accepted it as Contention 1.
Id. at 297-98.
Subsequent to that Order, the Commission amended Table S-3 tospecify that no quantity figure for Technetium-99 was included.
See Table S-3 to 10 CFR 551.20, fn. 1, as
- amended, 44 Fed; Reg.
45362 (August 12, 1979).
The new table explicitly provided that "estimates of Technetium-99 released from waste management or reprocessing activities * *
- may be the subject of litigation in the individual licensing proceedings."
Ibid.
Tc-99 was one of the isotopes the quantities of releases of which ECNP wished to litigate.
Therefore, at the prehearing conference, we asked the ECNP representative whether she still wished to litigate the quantities of Tc-99 released from the fuel cycle (in addition to
16-the health effects of such releases).
She said that she did (Tr. 537).
Therefore, we directed that Contention 1 be revised to treat Tc-99 in a similar manner as Rn-222 and to permit litigation of the quantity,'s well as health effects, of specified releases of Tc-99.
As revised, the contention reads as follows:
1.
A.
The quantity of Radon-222 which will be released during the fuel-cycle required for the Susquehanna facility, and the quantity of Technetium-99 which will be released from waste management or reprocessing activities resulting from operation of the Susquehanna fa'cility, have not been, but should be, adequately assessed.
The radiological health effects of this radon and technetium should be estimated and these'stimates factored into the cost'-benefit balance for the operation of the plant.
B.
The radiological health effects of all isotopes other than Radon-222 and Technetium-99 which will be released during the fuel cycle required for the Susquehanna plant have been misrepresented and under-estimated.
In particular, the health effects
of each long-lived isotope which will be released from the fuel cycle for Susquehanna should be reassessed.
The appropriately I
determined effec ts must be fac tored int o the cost-benefit balance for the operation of the plant.
18-IV.
Several other matters considered at the prehearing confer-ence warrant some comment.
1.
SEA filed a motion for a protective order with respect to its answering questions conc'erning Contention 1.
We advised 1
SEA that we regarded its motion as an adequate
- answer, inasmuch as it suggested that SEA had no current information relevant to Contention 1 (Tr. 586).
SEA indicated that that view was mistaken and that it only had not been able to provide answers in the time frame available to it (Tr. 715-16).
Nevertheless, its offer to provide further answers by'May 1 appears satisfactory to us and obviates the need for a protective order.
In similar fashion, ECNP's various requests for protec-tive orders are obviated by the discovery arrangements which we approved at the conference and outlined in our Memorandum of March 27, 1980.
2.
With respect to the obligations to supplement answers by May 1, we advised the intervenors not to let that date slip by without response that if unforeseen circumstances developed which foreclosed them from answering on time, they should request an extension (which, for "good cause"
- shown, we can grant).
We also advised the intervenors that specific grounds must be advanced for any such extension, that we would be reluctant to
19 grant further extensions absent a strong showing, and that, in any event, at least partial compliance by May 1 would be expected.
See Tr. 552, 554-55,
- 585, 594, 710.
We also stated that if the Applicants (or Staff) believe that
- ECNP, SEA or CAND has not made a good faith effort to respond to interrogatories on the schedule we approved, they could file motions seeking appropriate. relief (Tr 712)
~
3.
At the prehearing conference, we were asked whether persons who made limited appearances early in the proceeding would be permitted to make additional statements at a later date.
We expressed the view that normally a person may make only one appearance but that, given the widely varying subjects to be considered at various stages of this proceeding, we would permit such additional statements, as long as they did not repeat what had been stated earlier by the person in question (Tr. 597, 602).
We precluded statements by members of intervening groups on sub-jects related to contentions being litigated, unless the member had a different view from that being advanced by the group (Tr.
597-98).
- Finally, SEA advised us that copies of the NRC Issuances and AEC Reports were not available in the Wilkes-Barre area (or anywhere else near the plant).
Other intervenors confirmed that situation.
We expressed our view that this situation was serious, inasmuch as we frequently cite the decisions reported therein as
20-precedent for our rulings (Tr. 718).
We asked the Staff to attempt to arrange for a set of reports to be placed in-the local
'ublic document room (a loca1 public library) perhaps through the vehicle of an inter-library loan (Tr. 719).
By letter dated April 3.,1980, the Staff advised that it had arranged to loan to the library in question a microfiche set of reports from 1 AEC through 9 NRC, and a microfiche 'reader.
The Staff also agreed to loan the library a softbound set of 10 NRC through November,
- 1979, and to provide future issues as they become available.
- Also, the Staff reported that it had recently surveyed the local public document room and had updated and straightened the files.
We find these actions of the Staff to be most helpful and in accord with the desire of the Commission (which we share) to make information relevant to its licensing proceedings readily available to persons in the locale of a facility.
Again, we commend the Staff for its assistance in this matter.
For the foregoing reasons, the Applicants'otions to restrict the participation on certain contentions of SEA and
- ECNp, and their motion to dismiss CAND from the proceeding, are denied.
CAND's sponsorship of environmental contentions is limited to contentions, or portions of contentions, of which it is the sole sponsor.
The parties shall adhere to the discovery arrangements outlined in this Order.
SEA's and ECNP's motions for protective orders are
dismissed as moot or as unnecessary in light of the further discovery measures we have approved.
FOR THE ATOMIC SAFETY AND LICENSING BOARD Dr. Oscar H. Paris, Mem er ar es Bec oe er, az.rman Mr. Bright did not participate in the consideration or disposition of the. matters discussed in this Order.
Dated at Bethesda,
- Maryland, this 11th day of April, 1980.