ML19209B011
| ML19209B011 | |
| Person / Time | |
|---|---|
| Site: | Trojan File:Portland General Electric icon.png |
| Issue date: | 08/06/1979 |
| From: | Gray J, Ulman M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19209B009 | List: |
| References | |
| NUDOCS 7910050787 | |
| Download: ML19209B011 (9) | |
Text
8/6/79 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket No. 50-344 PORTLAND GENERAL ELECTRIC COMPANY, ET AL. )
(Control Building)
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(Trojan Nuclear Plant)
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NRC STAFF MOTION FOR RECONSIDERATION OF LICENSING BOARD'S ORDER GRANTING CONSOLIDATED INTERVENOR'S MOTION FOR CONSOLIDATION WITH COALITION FOP SAFE POWER I.
INTRODUCTION AND BACKGROUND By letter to the Licensing Board dated July 15, 1979,1-Nina Bell, represent-ing the Consolidated Intervenors (Intervenor or CI), requested that the Board consolidate Intervenor's participation in the captioned proceeding with that of Eugene Rosolie and the Coalition for Safe Power (CFSP).
According to Ms.
Bell, such consolidation would also include a consolidation of Intervenor's admitted contentions with those of Mr. Rosolie and CFSP.
Ms. Bell stated that such a consolidation is ' acceptable to Mr. Rosolie and that. she is authorized 4
to so Lnform the parties to this proceeding.
The letter, in substance, appeared to be a motion for consolidation by Intervenor and the Atomic Safety and Licensing Board (the Board) treated it as such.
On July 27, 1979, the Board issued an Order granting the motion and consolidating Intervenor with Eugene Rosolie and CFSP.
For the reasons' set forth below, the Staff requests that the Board reconsider its Order of July 27, and on the basis of this motion, the Staff's motion of July 12, 1979 and the Licensee's motion of July 13, 1979, dismiss Intervenor as a party to this proceeding.
As further 1/ The Staff was not served a copy of the letter by Ms. Bell.
- However, the Staff was informed of the letter by the Licensee who provided a copy of the letter to the Staff on July 26, 1979.
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e set forth belew, in the event that Intervenor is not dismissed from the pro-e ceeding, the Staff would not oppose consolidation of Intervenor with Mr.
Rosolie and CFSP provided that certain conditions are imposed.
II.
BASIS FOR STAFF'S MOTION FOR RECONSIDERATION OF LICENSING BOARD'S ORDER GRANTING CONSOLIDATED INTERVENOR'S MOTION FOR CONSOLIDATION WITH CFSP Although the Commission's regulations at 10 CFR Part 2 do not explicitly pro-vide for a motion to a licensing board for reconsideration of one of its own interlocutory orders, the. Appeal Board has recognized that a licensing board can properly entertain such a motion.
For example, in ALAB-370, where the Appeal Board dismissed, as interlocutory, appeals by Intervenors from certain proccdural rulings of the Licensing Board, the Appeal Board noted that the icensing Board could properly treat the appeal as a motion to the Licensing Board itself to reconsider its ruling.
Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-370, 5 NRC 131 at 132, fn.2 (1977).
In view of the prohibition in 1 CFR 82.730(f) against interlocutory appeals, a party is without redress against an interlocutory order, absent rm onsideration by a licensing board of such an order.
For the reasons set forth oelow, the Staff believes that there is good cause for its motion requesting the Board to recon-sider its Order of July 27, 1979.
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Contr.?ry to the requirements of CFR 92.730(f), Ms. Bell's motion of July 15, 1979 was not served on all the parties to the proceeding,2/ thus severely prejudicing, if not foreclosing, their right to meaningfully respond to the motion.
According to 10 CFR 92.730(c), the Staff has fifteen (15) days after
--2/ See note 1 above. 'The Licensee apparently received the motion in an envelope postmarked July 21, 1979.
See " Licensee's Statement Opposing The Request of Nina Bell and Consolidated Intervenors for Consolidation,"
dated July 26, 1979.
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service of a motion in which to file an answer.
In this case, the Staff calculates that its answer was to be filed by August 10, 1979, which is fifteen days after receipt of tlte motion by the Staff.
Intervenor's failure to serve the motion on the Staff should not preclude consideration by the Board of the arguments the Staff would have made had it been afforded an opportunity to answer the motion.
Furthermore, when the Board issued its Order, motions by the Staff and the Licensee to dismiss Intervenor from this proceeding were pending before the Board.
The Board issued its Order without ruling on these motions.
In addition, the Board granted the motion without providing any explanat.itn, other than
" good cause having been shown," or providing guidance as to the ' nature of the consolidation.
In these circumstances, the Board should, we believe, recensider its Order of July 27, 1979 and consider the Staff's position on consolidation of Intervenor with CFSP, as set forth below.
I III. NRC STAFF'S POSITION ON CONSOLIDATION OF INTERVENOR WITH CtSP Ms. Bell, in her July 15, 1979 letter, states that she has substantially the same interests as Mr. Rosolie and CFSP and that consolidation would enhance her ability to participate in Phase II of this proceeding.
In the Staff's view, these representations, along with the agreement to consolidate by Mr. Rosolie and CFSP, would normall'y justify consolidation.
At the same time, Ms. Bell requests that the Licensing Board " consolidate [her]
contentions with those of Mr. Rosolie and the CFSP".
Ms. Bell does not ind.i-cate what she means by this but, if her intent is that after her consolidation with Mr. Rosolie/CFSP, the resulting consolidated party would then retain all of the admitted contentions of both Mr. Rosolie/CFSP (CFSP contentions 3, 4, I
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12/13,15,16,17, 20, and 22) and Consolidated Intervenors (Consolidated Int'er-venors' contentions 2A, C, D, 3, 4/12, 5, 7, 11, 17, and 20), the Staff strongly opposes such a request.
On July 12, 1979, the Staff filed a " Motion to Dismiss Nina Bell / Consolidated Intervenors from Proceeding or for Cther Sanctions for Failure to Comply with
. Licensing Board's Order on Discovery".
That motion sought dismissal of Inter-venor from the proceeding or, La the alternative, dismissal of certain of Intervenor's contentions and a limitation on Intervenor's participation in Phase II of this proceeding because of Intervenor's failure to comply with an explicit Licensing Board discovery order and Intervenor's continuing refusal to provide any useful information on contentions pursuant to lawful and reasonable discovery requests by the Staff.
On July 13, 1979, the Licensee filed a similar motion to dismiss which was also based on Intervenor's failure to comply with a discovery order and on Intervenor's failure to provide responsive answers to the Licensee's interrogatories directed to Intervenor's admitted contentions.
Both of these motions recount a consistent and continuing refusal by Iatervenor to provide factual support for, and specifics with regard s
to, Intervenor's conclusory and unsupported contentions despite extensive efforts, through the discovery process, to obtain such information and despite the Licensing Board's admonitions that such information nust be provided promptly and responsibly. To date, such infor=ation has not been provided and the Staff, at least, continues to face the burden of addressing Intervenor's contentions without the benefit of information to which it is entitled on the precise nature and details of, and the factual bases for, those contentions.
Intervenor should.not be permitted to shirk the responsibilities of a party or the consequences of its continuing blatent failure to fulfill those 1128 094
responsibilities u, or under the ruse of consolidation with Mr..Rosolie/CFSP.,
The Staff has not withdrawn and does not withdraw its July 12, 1979 motion for dismissal or alternate sanctions.
The Staff remains of the view that Inter-venor should be dismissed as a party.
If the Staff's motion for dismissal is granted and Intervenor is dismissed, then Intervenor would no longer be a party and the question of consolidation would be moot.
On the other hand, in the event that Intervenor is not dismissed from this proceeding but, instead, remains a party, the Staff believes consolidation of Intervenor with Mr. Rosolie/CTSP is appropriate provided that Intervenor's admitted contentions are dismissed 1 because of Intervenor's past and continu-ing failure to fulfill its responsibilities with respect to legitimate dis-covery directed to those contentions and the unjust burden thet retention of those contentions (without the support,ing factual bases for them) would place on the parties who must address ose contentions.4/ In addition, the
-3/ Ms. lell herself sdates, La aer letter of July 15, 1979, that her interests with regard to contentions are substantially the same as those of Mr.
Rosolie and C7SP.
An examination of admitted contentions reveals that, with few exceptions, Intervenor's admitted contentions raise substantially the same apparent concerns as the contentions of Mr. Rosolie/CFSP (compare:
CI contention 4/12 with CFSP contention 12/13; CI contention 7 with CFSP contentions 15 and 16; CI contention 11 with CFSP contention 20; CI con-tention 17 and CFSP contention 22).
Only CI contentions 2A, C, D, 3 and 5 are not covered in substantial part by the admitted contentions of Mr.
Rosolie/CTSP.
Thus, dismissal of_the CI cantentions in the event consoli-dation is affirmed, should not result in prejudice to Intervenor and would be consistent with Ms. Bell's own assertion of commonality of interest with the contentions of Mr. Rosolie/CFSP which would remain as issues for hearing.
4/
On July 31, 1979, the Licensee filed " Licensee's Motion to Clarify Board's Order Consolidating Intervenors".
In that motion for clariff-cation, the Licensee requested that Consolidated Intervenors' admittea-contentions be dismissed and that the single remaining consolidated party made up of Ms. Bell and Mr. Rosolie/CFSP be bound by the previous interrogatory answers filed by Mr. Rosolie/CFSP in response to discovery directed to CFSP contentions.
In the event that, upon reconsideration, (FOOTNOTE CONTINUED ON NEXT PAGE) 1128 095
nature and scope of Intervenor's participation as a consolidated party should>
be clearly deffned.
Ms. Bell did not address this matter in her July 15, 1979 letter nor did the Board in its Order of July 27, 1979.
It is the Staff's view that any consolidation must be consolidation in the true sense with the result-ing consolidated party being represented by a single spokesperson for all purposes including the filing of motions, documents and pleadings and responses
'theret'o, the submission of discovery requests, the filing of testimony, repre-sentation at evidentiary hearings,5/ the filing of proposed findings and the taking of appeals.
This is not to say that on any particular matter either Ms. Bell or Mr. Rosolie could not represent;the consolidated party.
It is to say that for any particular matter both Ms. Bell and Mr. Rosolie,should not be permitted to separately represent the consolidated party.
os IV.
CONCLUSION Ahd REOUEST FOR RELIEF Based on the foregoing i
(1) The Staff respectfully requests that the Board reconsider o
its Order of July 27, 1979.
(2) Tne Staff's July 12, 1979 motion for dismissal has not been withdrawn and remains unaffected by Intervenor's motion to consolidate.
For the reasons set forth in the Staff's July 12, 1979 motion and the Licensee's July 13, 1979 motion, Intervenor should be dismissed.
Such dismissal vould make moot the question of consolidation of Intervenor with Mr.
Rosolle/CFSP.
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) the Board does not dism'.ss Ms. Bell and Consolidated Intervenors but, instead, affirms its consolidation order, the Staff agrees uith the Licensee's position, in its motion for clarification, that the contentions of Ms. Bell and Consolidated Intervenors should be dismissed and that the remaining consolidated party should be bound by CFSP's previous responses to interrogatories.
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--5/ This includes examination and cross-examination of witnesses, evidentiary objections and responses thereto, oral argument and the like.
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(3)
In the event that Intervenor is not dismissed from the pro-e ceeding but, instead, remains a party, consolidation of Intervenor with Mr. Rosolie/CFSP fa appropricte provided that Intervenor's admitted contentions are dismissed and the re-maining consolidated party is represented by a single spokes-Person as to all matters in Phase II of this proceeding.
, Respectfully submitted, 1
/
ose R. Gray ou' el for NRC Staf W
I r4 rie B. U1'n j.Counsel for NRC Staff Dated at Bethesda, Maryland this 6th day of August, 1979 e
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
PORTLAND GENERAL ELECTRIC COMPANY, ET AL. )
Docket Nos. 50-344
)
(Control Building)
(Trdjan Nuclear Plant)
)
CERTIFICATE 0F SERVICE I hereby certify that copies of "NRC STAFF MOTION FOR RECONSIDERATION OF LICENSING BOARD'S ORDER GRANTING CONSOLIDATED INTERVENOR'S MOTION FOR CONSOLIDATION WITH COALITION FOR SAFE POWER" in the above-captioned proceed-ing have been served on the follow 1ong 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 6th day of August, 1979:
Marshall E. Miller, Esq., Chairman
- Richard M. Sandvik, Esq.
Atomic Safety and Licensing Board Frank W. Ostrander, Jr.
U.S. Nuclear Regulatory Commission Counsel for Oregon Dept. of Washington, DC 20555 Energy
- 500 Pacific Building Dr. Kenneth A. McCollom, Dean 520 S.W. Yamhill Division of Engineering, Portland, OR 97204 Architecture & Technology Oklahoma State University Maurice Axelrad, Esq.
Stillwater, OK 74074 Lowenstein, Newman, Reis, Axelrad & Toll Dr. Hugh C. Paxton Suite 1214 1229 41st Street 1025 Connecticut Avenue, N.W.
Los Alamos, NM 87544 Washington, DC 20036 Mr. John A. Kullberg Mr. David B. McCoy Route One 348 Hussey Lane Box 250Q Grants Pass, OR 97526 Sauvie Island, OR 97231 Ms. C. Gail Parson Mr. Eugene Rosolie 800 S.W. Green #6 Coalition for Safe Power Portland, OR 97206 215 SE 9th Avenue Portland, OR 97214 William W. Kinsey 1002 N.E. Holladay Ronald W. Johnson, Esq.
Portland,. 0R 97232 Corporate Attorney Ms. Nina Bell Portland General Electric Company 728 S.E. 26th 121 S.W. Salmon Street Portland, OR 97214 Portland, OR 97204 e
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Dr. W. Reed Johnson
- Atomic Safety and Licensing Board Atomic Safety and Licensing Appeal Panel
- Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Appeal Alan S. Rosenthal, Esq.*
Panel (5)*
Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Commission Board Washington, DC 20555 U.S. Nuclear Regt 'atory Commission
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Washington, DC. ;55 Docketing and Service Section (4)*
Office of the Secretary Dr. John H. Buck
- U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Appeal Washington, DC 20555 Board U.S. Nuclear Regulatory Commission Washington, DC 20555
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