ML19254F178

Order Ruling on NRC 790806 Motions for Reconsideration of ASLB 790727 Order Consolidating Intervenors & on Motions Re Intervenors Response to Discovery.Denies Majority of Motions

ML19254F178
Person / Time
Site:	Trojan File:Portland General Electric icon.png
Issue date:	10/17/1979
From:	Mark Miller Atomic Safety and Licensing Board Panel
To:
References
TAC-08348, TAC-11299, TAC-13152, TAC-8348, NUDOCS 7911070263
Download: ML19254F178 (5)

Text

NRC PUBLIC DOClnIENT P,00M l

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UNIIED STATES OF MERICA g

NUCLEAR REGLMIORY 0114ISSION 8

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' d THE AITIC SAFELY AND LICENSING ECARD Marshall E. Miller, Esquire, Cbniem q

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s Dr. Kenneth A. McCollco, Mecher Dr. Hugh C. Paxton, Mmber Q,,"

In the Matter of

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Decket No. 50-344 PORILAND GENERAL EECIRIC C24PANY, et al.

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(Trojan Nuclear Plant)

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(Centrol Buildir.g)

ORDER REGARDING STAFF'S >WICN RR RECCNSIDEPATION OF CCNSOLIDAITCN OF INIEECRS, AND >EIONS DIRECIED TO INIEEERS' RESPCNSES TO DISCOVERY (October 17, 1979)

I.

The Staff filed a coticn en August 6,1979, asking the Board to recensider its Order of July 27 censolidating Nina Bell and ti.s Censolidated Intervencrs (CI) with Eugene Ecsolie and de Coalitien for Safe Pcar (CESP). The Staff furder sought, en the basis of that cotien, for the dis =issal of CI as a party cn ti.e gratnds set forth in the Staff's retica for dimissal dated July 12 and de Licensee's si-ihr cocion dated July 13.

If these cociera are not granted, the Staff rect.ested de i=positien of certain ccediticns ucen ccnsclidaticn.

The Licensee, in its staterent dated July 26, also requested the innositica of ccnditiens upcn ecnsolidaticn. The same request was centained in the Licersee's notien to clarify the consolidaticn crder, dated July 31.

The Staff's notion for recensideration will be considered en its =erits.

Althcugh there is no explicit provisicn in cur regulations for, reconsideration of an interlecutory order by a licensing beard, w believe there is irherent I289 00 79nnu 2 g

, pcwer to fashicn procedure to insure procedural due process. Here, the cotien for consolidaticn was not served en all parties, as r@ed by 10 CFR 52.730(f).

Accordingly, we will take into consideration the Staff's cpposition in recensid-ering de order of censolidation, as well as the cententiens of the Licensee asserted in its cotien for clarification of the censolidation order.

On July 12, 1979, the Staff filed a cocion to d h s Nina Bell and the Censolidated Intervenors for failure to respcnd to its seccad set of interroga-tories, tich had been served by mail en May 15. The Board had issued an Order en June 15, directing these Intervenors to respctd prcx:stly and directly to those inte=cgatories. On July 13, the Licensee filed a'similar cotion, based upcn the Intervenors' failure to responi to its second set cf incenegatories, in spite of an Order directing responses issued en June 5.

'Ihese moticns wre taken under advise:1ent by the Board and they were pending en July 27, when the consolidaticn order was entered.

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The Ccnsolidated Intervenors were is substantial and unexcused default in respcnding to the Staff's interrogatories *.en they asked for censolidatica by letter dated July 15. This letter as received by the Board cn July 25.

It was never = ailed to or received by the Staff, which received a ecpv of the letter f=m the Licensee en July 26. 2.e Licensee has stated that alt.h gh the letter signed by Ms. Bell was dated July 15, the envelcpe in d.ich it

• as received by Licensee's ccunsel in Washington, D. C., was post = ark d July 21.

In any event, the Board by its Order dated June 15 had directed a prcx::pt respense, and the Censolidated Intervenors had not ebeyed the order. Tc.ef wre also in default regarding the Licensee's seccnd set of interregatories, dated May 8, W.ich thef were directed to answer forthwith by cur Orders en June 5.1/

N.ese defaults were not cured by the filing by Censolidated Intervemrs of 2

Respenses to NBC Staff Inte=cgatories, Set 2, dat 2'v2', received J'1 August 6.

. In lieu of dimissing Ms. Bell and the Consolidated Interverors as parties to this proceeding, as requested by the notions of the Staff and Licensee, w ordered that these parties be censolidated as they requested "with the r a ining intervenors in th!s proceeding, nacely, Eugene Ecsolie oro se and on behalf cf the Coalition for Safe Four (Order Censolidating Intervenors, July 27, 1979)."

Ms. Bell stated that she and the reining interierors "bave subs *mtially the sare interests. Such a censolidaticn m uld greatly enhance my ability to participate in these proceedings."

This censolidaHm was cet intended to relieve intervenors fran their disecvery respcnsibilities, nor to reward any failure or refusal to cccoly with Beard orders.

It ws intended cerely to pe=it a centinued but litiited participa-tien by Ms. Bell and the Censolidated Intervenors, by allowing then to join the reining interrenors. The cententions previcusly advanced by Ms. Bell w uld be censicered withdrawn. The reining centaticns muld be thye asserted by the rei,4ng intervencrs and ad=itted by the Beard. Accordingly, rpen recensideration a adhere to the granting of censolidatien of intervencrs, but subject to the folicwing ccnditions:

1.

The Board denies the acticas of the Staff and the Licensee to dismiss Niu 3eli cnd Censolidated Interrenors frco this pre-ceeding.

2.

All ad=itted cententions (Censolidated Intereercrs' Cententiens 2A, C, D, 3, 4/12, 5, 7,11,17 ani 20) of Nina Eell and the Censolidated Interiencrs are hereby dismissed.

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The single remning Consolidated Party, consisting of Eugene Rosolie, acting cro se, the Coalition for Safe Power (GSP), Nira Bell sad the Consolidated Intervenors, shall be bcund by the ad::itted cententions of GSP and the interro-gatory anse rs filed in connecticn therewith. The usual rules shall apply as to uniciple representation of a party or parties, in regard to participaticn in this proceeding by the remaird.ng Censolidated Party.

II.

The Staff has filed a noticn for clarification of Censolidated Intervenors' Cententien 17, stating that the NRC Staff has not conducted a thorough rev:.ew of the intended modifications. The Licensee has filed a coti~cn and sucpleaental notien to cccpel Eugene Posolie, pro se, and GSP to respond fully to its seccnd set of interregatcries. To the extent that these moticns ha not been rendered toct by cur $alings, sucra, they are denied at this time.

We have previously indicated that any furder delays in te ting discovery, s

establishing schedules or cmrencing a Phase II evidentiarf hearing are caused by de unecepleted f=nishing of regt.ested infaticn by de Licensee to the Staff, ard by the failure of the Staff to cccolete and issue its Sa#ety Evalua-tien Repcrt (SER).1

Until dese matters have been fully accccplished, there is rc final and definitive proposal to urdify the Trojan control building. Our experience in the Phase I evidentiary hearing dancnstrated i:=racticaliry of

'/ ee Orders dated October 11 and Septe:ber 13, 1979.

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- handling such =atters en a pieceml basis or during the ccurse of hearings.

It is unfair for the Staff and Licensee to seek =eticulous discovery rcw from the Intervenors, before they have fully described and analyzed the proposed nodifica-tiens the:selves. Ecw could anycne detmke whether er not the Staff has conducted a thorough aralysis or review of the intended nodificatiens (CI Cententien 17) when the wrk has not been carpleted? The notions are derled.

It is so ordered.

KR THE ATCMIC CAFETI AND LICD; SING BOL@

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di v.rshall E. Miller, Chai=an e

Dated at Bethesda, Maryland this 17th day of October 1979.

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