ML19208C356
| ML19208C356 | |
| Person / Time | |
|---|---|
| Site: | Trojan File:Portland General Electric icon.png |
| Issue date: | 07/13/1979 |
| From: | Carr A LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, PORTLAND GENERAL ELECTRIC CO. |
| To: | |
| References | |
| NUDOCS 7909260106 | |
| Download: ML19208C356 (13) | |
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G d' BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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PORTLAND GENERAL ELECTRIC COMPANY, )
Docket No. 50-344 et al.
)
)
(Control Building T roceeding)
(Trojan Nuclear Plant)
)
)
CERTIFICATE OF SERVICE I hereby certify that on July 13th, 1979, I served a copy of the Licensee's Motion to Dismiss Mina Bell and Consolidated Intervenors as Parties to the Proceeding, by placing a true copy of said document in a sealed envelope with postage fully prepaid, in the United States mail at Washington, D.C.
addressed as follows:
Marshall E.
Miller, Esc., Chairman Atomic Safety and Licensing Board Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Cstmission Washington, D.
C.
20555 Washington, D.
C.
20555 Dr. Kenneth A.
McCollom, Dean Docketinc and Service Section Division of Engineering, Office o$ the Secretary Architecture & Technology U.S.
Nuclear Regulatory C:mmission Oklahcma State University Washington, D.
C.
205 Stillwater, OK 74074 (Original & 20 copies)
Dr. Hugh C.
Paxton Columoia County Courthouse 1229 - 41st Street Law Library, Circuit Court Room Los Alamos, NM 87544 St. Helens, OR 97051 i
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a Joseph R.
Gray, Esq.
Atomic Safety and Licensing Counsel for NRC Staff Appeal Board U.
S. Nuclear Regulatory Commission U.
S.
Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Ms. Nina Bell Ronald U.
Johnson, Esq.
728 S.
E.
26th Street Corporate Attorney Portland, OR 97214 Portland General Electric Co.
121 S.
W.
Salmon Street Mr. Eugene Rosolie Portland, OR 97204 Coalition for Safe Power 215 S.
E.
9th Avenue Richard M.
Sandvik, Esq.
Portland, OR 97214 Frank U.
Ostrander, Jr.
Counsel for Oregon Department Mr. David B.
McCoy of Energy 348 Hussey Lane 500 Pacific Building Grants Pass, OR 97526 520 S.
W.
Yamhill Portland, OR 97204 Mr. John A.
Kullberg Route One William W.
Kinsey, Esq.
Box 250Q 1002 N.
W.
Holladay Sauvie Island, OR 97231 Portland, OR 97232 Ms.
C.
Gail Parsca Dr. Harold I.
Laursen 300 5.
W.
Green #6 1520 N.
W.
13th Portland, OR 97206 Corvallis, OR 97330 Robert M.
Johnson, Esq.
Assistan: Attorney General 100 State Office Building Salem, OR 97310 F1' Jul/ 13, 1979 e
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Carr, Jr.
'g' Lowenstein, Newman, Refs, Axe' rad & Toll
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COM?iISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Docket No. 50-344
)
PORTLAND GENERAL ELECTRIC COMPANY
)
(Control Building Proceeding) et al.
)
)
(Trojan Nuclear Plant)
)
)
)
MOTION TO DISMI9S NIMA BELL AND CONSOLIDATED INT.RVENORS AS P1RTIES TO THE PPJCEEDING Portland General Electric Company (Licensee), pursuant to 10 CFR 2.707, moves the presiding Atomic Safety and Licensing Board (Board) for an order dismissing Nina Bell and Consolidated Intervenors (hereinafter referred to as "Intervenors") as parties to this proceeding. Intervenors' failure to comply with the Board's discovery order of June 5, 1979, and their refusal to participate in discovery with respect to their contentions requires their dismissal as parties to this proceeding.
Background
On February 26, 1979, Intervenors, in accordance with the Board's Order of January 30, 1979, submitted 25 contentions for the second phase of this proceeding.
On March 5.
- 1979, Licensee served personally on Intervenors its First Set of Interrogatories.
Licensee's First Set of Interrogatories were addressed to a number of Intervenors' contentions in order 1015 217 to determine their bases, if any, with reasonable specifi-city; none was in any way complicated, nor did they require any special expertise to answer.
Notwithstanding the reasonableness of Licensee's Interrogatories, Intervenors failed to answer or to respond in any fashion.
On March 23, 1979, Licensee, pursuant to Section 2.740 (f),
filed a Motion to Compel Responses to its First Set of Interrogatories.
At the Prehearing Conference held in Portland on March 29, 1979, the Board ruled on Intervenors' contentions, admitting seven as issues in this proceeding, and also granted Licensee's Motion to compel ordering Intervenors to submit full and adequate responses to Licensee's Interrogatories related to those contentions admitted to the proceeding.
On April 14, 1979, (two days after the date ordered by the Board) Intervenors filed responses to Licensee's First Set of Interrogatories.
After reviewing those responses and Intervenors' responses to NRC staff interrogatories, Licensee on May 9,
- 1979, personally served its Second Set or
._ucc.2 tories on Intervenors.
These Interrogatories again were intended to develop further information with respect to the bases for some of Intervenors' contentions.
Again, none of Licensee's Second Set of Interrogatories requires any special expertise to answer, nor are they particularly complicated. Intervenors 2
did not answer or respond in any manner to Licensee's Second Set of Interrogatories.
On June 4, 1979, Licensee pursuant to Section 2.
740 (f), filed with the Board a Motion to Compel with respect to Licensee's Second Set of Interrogatcries.
1015 218 On June 5, 1979, the Board issued its " Order Vacating Hearing Schedule" and, among other things, specifically lirected Intervenors "to respond forthwith to the Licensee's Second Set of Interrogatories to Intervenors, dated May 8, 1979." (Order, p.3)
More than five weeks have passed since the Board issued that Order; Licensee has received no response to its Second Set of Interrogatories.
Intervenors are clearly in default of the Board's Order of June 5, 1979.
II.
The Licensee Has A Right to Full and Complete Discover'L From Intervenors The Commission's Rules require a threshold showing of specificity and bases for admission of a contention as issue in a proceeding.
But the showing of specificity and basis necessary to admit a contention as an issue in a proceeding is far short of that which the required contention must meet to frame an issue suitable for adjudication.
In many instances it is necessary to use the Commission's discovery rules (10 CFR 2.740) to ascertain the information necessary to " flesh out" for litigation a contention admitted on the basis of the initial pleadings.
Therefore, the Commission's rules permit the Licensee to address inquiries, substantially without limitation, to Intervenors with respect to the issues which Intervenors have affirmatively raised in this proceeding.
i And the Board, in ruling on the admission of Intervenors' 1015 219
_ contentions in this proceeding, time and again stressed that, although the contentions which it admitted possessed the mini-mum threshold showing necessary to justify admission, they would need to be refined after discovery had been conducted. /
Thus, as contemplated by the Commission's rules, Intervenors' contentions were admitted to the proceeding with the clear understanding on the part of the Board and the parties that proper discovery was necessary to shape those contentions in-to issues suitable for litigation.
In light of that, the Board stated "And we will tell the Intervenors and all other parties answering interrogatories that we expect full, fair, non-evasive answers.
(Tr. 3019-3020).
The Board took great pains to instruct Intervenors how to frame full,and meaningful responses to discovery requests, and specifically warned Intervenors that if they did not adequately respond to discovery requests the Board, on proper motion, would impose sanctions. (Tr. 3123-3135)
An examination of Licensee's Interrogatories shows that their purpose is simply to ascertain the bases for the con-tentions and to shape them as issues for litigation.
In short, all Licensee is attempting to do is discern what Intervenors' concerns are in each of its contentions so as to be able to 4
- /
- See, e.g.,Tr.
3036-3037; and 3057-3059 (admitting and combining Intervenors' Contentions Nos. 4 and 12 sub-ject to "further refinement" af ter discovery) ; Tr.
3062-3063 (admitting Intervenors' Contention No. 17
" sufficient for issue purposes...if there is any-as thing further required it will be gotten by way of discovery.")
1015 220
. litigate them at hearings.
Fundamental fairness requires that Intervenors furnish such information to Licensee.
- Licensee, as Intervonors have noted, carries the burden of proof in this proceeding.
10 CFR 2.732; Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-315, 3 NRC 101 (1976) and ALAB-282, 2 NRC 11 (1975).
Unless Licensee is permitted to inquire effectively into Intervenors' positions, discharge of that burden may be made substantially more difficult and time-consuming.
To permit Intervenors to make skeletal contentions and keep the bases for them secret while requiring Licensee to meet any conceivable argument at hearing is not only patently unfair, but also is inconsistent with developing a sound record.
Northern States Power Company et al.
(Ty.rone Energy Park, Unit 1) LBP-77-37, 5 NRC 1298,1300-1301 (1977).
This was specifically recognized by the Board at the Prehearing Conference of March 29, when Chairman Miller addressed Intervenors' representative, Ms. Bell, with respect to Intervenors' obligation to respond to Licensee's Interroga-tories:
Chairman Miller:
Now we'd like to have everybody have a fair shot at an evidentiary hearing to present his or her case as fully as he is capable of doing so that you have witnesses and cross-examination and the like.
To do that we have to reciprocally furnish information, and I mean meaningful information, not argumentative.
2 And I think you understand what I mean.
Ms. Bell:
Yes, I do.
(Tr. 3134-3135) 1015 221
_6 III.
Sanctions For Failure to Complv With Discovery Requests Intervenors' pattern of conduct with respect to Licensee's discovery requests has been discussed above.
To summarize, it includes responding to Licensee's First Set of Interrogatories only after the Board's direct order in response to Licensee's Motion to compel, as well as failure to respond in any fashion either to Licensee's Second Set of Interrogatories or to Licensee's Motion to Compel.
Nor have Intervenors responded in any fashion to the Board's second discovery order issued pursuant to Section 2.740(f).
Thus there can be no question that Intervenors are in default of the Board's discovery order issued pursuant to Section 2.740.
This default is particularly inexcusable in light of the' clear instructions and warnings, discussed above, given Intervenors by the Board.
The Commission's regulations specifically provide the Board with authority to take appropriate action for failure to comply with the discovery provisions set forth in Section 2.740.
Section 2.707 of the Commission's Regulations provides, in relevant part, On failure of a party to comply with any discovery order entered by the presiding i
officer pursuant to 52.740,
. the pre-siding officer may make such orders in ra-gard to the failure as are just, including among othe rs, the following:
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7_
(a)
Uithout further notice, find the facts as to the matters regarding wh.ch the order was made in accordance with the claim of the party obtaining the order, and enter such order as may be appropriate; or (b)
Proceed without further notice to take proof on the issues specified.
When it adopted S2.707, in its present form, the Commission stated:
"Section 2.707, Default, has been amended to provide sanctions for failure to com-ply with the discovery provisions or with prehearing orders.
In order to control the course of the proceeding, the presiding officer should have the necessary authority to impose appropriate sanctions on all par-ties who do not fulfill their responsibilities as participants."
(emphasis supplied) 37 Fed.
Reg. 15127 (July 28, 1L72).
The Board therefore clearly has the authority to apply appropriate sanctir.ns against Intervenors for their failure to comply with the Commission's discovery rules and the Board's order.
Past NRC practice pursuant to Section 2.707 has been to dismiss parties to a proceeding who, as have Intervenors in this proceeding, refuse to participate in the discovery process, and ignore Board orders pursuant to Section 2.740.
- Thus, in Tyrone, intervenors were dismissed by the licensing board for failure to respond to discovery requests and defaulting on a discovery order issued by the board pusuant to Section 2.740.
Tyrone, 5 NRC 1290, 1300.
Similarly, licensing boards 1015 223 in other cases have dismissed intervonors from proceedings for refusing to comply with board orders compelling discovery pursuant to Section 2.740.
Public Service Electric and 3as Company (Atlantic Nuclear Generating Stations, Units 1 & 2)
LBP-75-62 2 NRC.702, 705-706 (1975); Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants)
LBP-75-67, 2 URC 813, 814-817 (1975).-*/
-*/
Similar sanctions are common in the federal courts under the analogous Rule 37 (b) (2) of the Federal Rules of Civil Procedure for recalcitrant or unre-sponsive parties who fail to comply with the Federal Rules relative to discovery.
For example, in Mangano v. American Radiator & Standard San. Corp.,
438 F.2d 1187, 1188 (3d Cir. 1971), the appeals court upheld the trial court's dismissal of plaintiffs who had failed to respond to interrogatories.
The trial court in Mangano underscored the importance of impos-ing the sanctioris of dismissal where parties fail to comply with discovery rules, as follows:
In light of the flagrant disregard by plain-tiffs of the discovery requirements of the Federal Rules the Court would be fully justified if it were to dismiss the claims of the present plaintiffs on the basis under Rule 37 (b) (2) (iii) or 37 (d).
Philadelphia Housing Authority, et al. v. American Radiator and Standard San. Corg. 50 F.R.D.
13, 15 (E.D. Pa. 1970)., citing Brookcale Mill, Inc. v.
Rowley, 218 F.2d 728 (6th Cir. 1954); Fond Du Lac Plaza, Inc. v.
Reid, 47 F.R.D.
221 (E. D. Uls. 1969);
Shepard v. General Motors Corporation, 42 F.R.D.
425 (D.N.II. 1967).
2 1015 224
9_
IV. The Appropriate Santion Is Dismiscal In Licensee's view, the Board can impose any of three sanctions against Intervenors for their default.
First, the Board can allow Intervenors to remain as a party, but refuse to allow them to participate in the trial of contentions.
Second, the Board can allow Intervonors to remain as parties to the proceeding, but preclude their participation on certain contentions.
Third, the Board can dismiss Intervenors as parties to the proceeding.
In considering which sanctions to apply, the Board should consider not only Intervenors' refusal to respond to Licensee's discovery requests and the Board's Order, but should also con-sider the contentions of Intervenors, the requirements of a fair hearing, and the potential for Intervenors to make a con-tribution to the proceeding.
Tyrone, 5 NRC 1298, 1300. Upon consideration of all these factors, Licensee believes that the proper action for the Board to take is to dismiss Intervenors as parties to the proceeding.
The default of Intervenors is clear; and Licensee has discussed above both the nature of the discovery requests addressed to them and the requirements of a fair hearing.
Suffice it to say that these factors, by themselves, justify 4
1015 225
10 -
dismissal.
Moreover, examination of Intervenors' participation thus far shows that they are unlikely to make a useful contribution.
To date, their interest and participation have been minimal.
In fact, except for one round of discovery requests in February, prior to filing their contentions, and a brief visit to the site in early 1979, Intervenors have done nothing to inform themselves on matters involved in Phase II.
Moreover, there is no indication they intend to present any witnesses.
Should Intervenors be dismissed, of course, their con-tentions would be dismissed as well.
But the Board has noted its concern with some of Intervenors' contentions and has indicated that it intends to pursue those subjects regardlesc of whether Intervenors participate.
And many of Intervenors' contentions are similar to contentions of the Coalition For Safe Power, another party to the proceeding.
Therefore, there is no reason to believe that Intervenors' participation is necessary to the development of a cound record.
In fact, based upon their performance to date, the continued presence of Intervenors as parties to this proceeding will probably in-hibit the development of a sound record.
Neither of the other sanctions available would produce a satisfactory result.
To allow Intervenors to remain as a party but net to allow them to participate in certain ways 1
1015 226
% the trial would simply exalt the form of " party" status over the substance of mere silent presence.
Offshore Power Systems, 2 NRC 813, 815.
If the failure to respond were limited simply to some of Intervenors' contentions, it might be appropriate simply to dismiss those contentions and allow Intervenors to participate in the trial of others.
However, in this instance, where Intervenors' failure to cooperate is so blatant and all-encompassing no remedy other than dismissal of Intervenors from the proceeding is adequate.
V.
Conclusion Therefore, for the reasons set out above, Licensee re-spectfully requests this Board to issue an Order, pursuant to Section 2.707 of the Commission's Regulations, dismissing Mina Bell and Consolidated Intervencrs as parties to this proceeding.
Respectfully submitted, RONALD W.
JOHMSON, ESQ.
Corporate Attorney Portland General Electric Company 121 S.
W.
Salmon Street Portland, Oregon 97204 MAURICE AXELRAD, ESQ.
ALEER.T V.
- CARR, JR.,
ESQ.
Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 By ~ ~ Albert V.
Carr, Jr. ~/
s i,
Dated at Washington, D.C.
This 13tn day of July, 1979 1015 227
.