ML19282B136
| ML19282B136 | |
| Person / Time | |
|---|---|
| Site: | 05000580, 05000581 |
| Issue date: | 02/16/1979 |
| From: | Churchill B SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| References | |
| NUDOCS 7903090083 | |
| Download: ML19282B136 (8) | |
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. 1 EL1La Ducu.'dii ROU.M February 16, 1979
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UNITED STATES OF AMERICA l[/ ,,
OF NUCLEAR REGULATORY COMMISSION iH
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Before the Atomic Safety and Licensing Board kj.w [f,f1 4 4
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In the Matter of ) UN 8 'd
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OHIO EDISON COMPANY, et al. ) Docket Nos. STN 50-580
) STN 50-581 (Erie Nuclear Power Plant, )
Units 1 and 2) )
MOTION TO DISMISS INTERVENORS EVELYN STEBBINS AND COALITION FOR SAFE ELECTRIC POWER AS PARTIES TO THIS PROCEEDING By Orders dated April 20, 1978, and January 22, 1979, the Licensing Board dismissed the contentions of Intervenors Evelyn Stebbins and Coalition for Safe Electric Power ("Intervenors") for defaulting on discovery obligations by failing to respond to Board Orders directing Intervenors to respond to interrogatories propounded by Applicants and the NRC Regulatory Staff. Because Intervenors now have no contentions before the Board for litigation, Applicants hereby move for dismissal of -
Intervenors as parties to this proceeding.
The Commission's regulations do not provide for or contemplate the participation of a person as a party to a construction permit proceeding in the absence of 780309ao83 h
specific contentions setting forth the matters the person seeks to have litigated. The rules expressly state that a petitioner who does not have at least one contention satisfying the requirements of 10 C.F.R. S 2.714 will not be permitted to participate as a party. 10 C.F.R.
S 2.714 (b) . Intervenors, due to their own defaults, and in spite of having been given ample warning and opportunity to avoid the defaults, have not a single contention re-maining before the Board. The Commission's regulations therefore do not permit Intervenors' participation in this hearing as a party.
Even beyond the specific prohibition discussed above, participation of a person as a party without con-tentions is inconsistent with the Commission's rules of procedure for conduct of hearings. Of primary and funda-mental importance in the Commission's hearing process is the proper identification and specification of contentions which define the matters which the petitioner " seeks to have litigated." 10 C.F.R. S 2.714(b). Without a conten-tion to be litigated, the purpose, focus, and subject of the Intervenor's participation vanish. This principle is explained -- and mandated by the Commission -- in paragraph III(a) (3) of Appendix A to 10 C.F.R. Part 2, which states that participation by inte rvenors is to be "with respect to their contentions relating to the matters
at issue in the proceeding." Without contentions, an intervenor has neither basis nor right to participate in a hearing.
Dismissal is not inconsistent with Intervenors' conduct in this proceeding, which includes unexcused tardiness in responding to motions, failure to respond to discovery requests, failure to answer a motion to compel discovery, failure to respond to a Board Order compelling discovery, failure to respond to a motion for default, and an indication of possible inability to con-tinue as parties. On June 16, 1977, Evelyn Stebbins, on her own behalf and in her capacity as Chairman of the Coalition for Safe Electric Power, filed a petition for leave to intervene in this proceeding. Ms. Stebbins and her organization were each admitted as parties by orders of the Board dated August 18 and October 13, 1977. Since that time, three separate motions for orders compelling discovery related to three separate requests for informa-tion have been filed in this proceeding, one by Applicants and two by the Staf f. The Applicants' motion of February 15, 1978, resulted in a March 16, 197', Order directing Intervenors to respond to Applicants' interroga-tories relating to all but one of Intervenors' contentions.
As a result of Intervenors' failure to comply with the Order, the Board, on April 20, 1978, granted Applicants'
motion to dismiss the contentions which had been the sub-ject of the unanswered interrogatories.
The NRC Staff, on September 1, 1978, served interrogatories on Intervenors relating to Intervenors' one remaining contention. The Intervenora did not respond, and their silence was followed by a Staff motion to compel (October 17, 1978), a Board Order compelling Intervenors to answer (November 6, 1978). a Staff motion to find Intervenors in default and dismiss the contention (November 22, 1978), and a Board Order which dismissed Intervenors 1/
sole remaining contention (January 22, 1979)7 Licensing boards and appeal boards have not taken lightly the obligations of intervenors in licensing pro-ceedings to fulfill their obligations as parties and con-duct themselves responsibly. The appeal boards, on various occasions, have applied sanctions, or affirmed those applied 1/ There is some question about Intervenors' intentions with respect to continuing as participants in this proceeding.
While an intent to continue would not mitigate the circumstances cited herein requiring dismissal, it is of interest to note that Intervenors have not been heard from in this proceeding since their last filings in April, 1978, almost a year ago.
This includes total silence from Intervenors during the above-described sequence in which Intervenors failed to answer the Staff's interrogatories and lost their last contention by default. In *_ heir April 12, 1978, filing, Intervenor Stebbins cited family problems, health problems, funding problems, and attempts to find a replacement to take over her duties as Chairman of the Coalition for Safe Electric Power.
5-by licensing boards, on intervening parties who have failed to carry out their obligations to participate affirmatively in licensing hearings. Fee, e.g. , Gulf States Utilities Co.
(River Bend Station, Units 1 and 2), ALAB-358, 4 NRC 558 (1976); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 a.:d 2), ALAB-288, 2 NRC 390 (1975);
Consumers Power Company (Midland Plant, Units 1 and 2),
ALAB-123, 6 AEC 331, 332-4 (1973), "Obviously, a party can be held in default for failing to carry out its responsi-bilitie s . ." Long Island Lighting Company (Jamespor*: Nuclear Power Station, Units 1 and 2), Docket Nos. 50-516 and 50-517 (NRC Atomic Safety and Licensing Board, July 23, 1976),
slip op. at 3.
The default provisions of 10 C.F.R. S 2.707 specifically provide that the Board may issue such orders "as are just" to remedy a failure to comply with a board order compelling discovery. There is ample precedent for holding that dismissal of a party is a just remedy for failure to comply with such a board order. Northern States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298 (1977); offshore Power Systems (Manufacturing License for Floating Nuclear P',wer 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.
In all of the cited cases, the licensing board dismissed
intervenors, who had previously been granted party status, for failure to comply with a board order directing them to respond to discovery requests. See also Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-288, 2 NRC 390 (1975).
Because the Commission's rules of practice do not allow participation of a party without litigable contentions, and because of Intervenors' defaults and failure to affirma-tively carry out their responsibilities as participants in this hearing, Applicants respectively submit that Intervenors should be dismissed as parties to this proceeding, and re-quest the Board to so order.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE f \
By _ m Brutre W. Churchill Counsel for Applicants 1800 M Street, N.W.
Washington, D.C. 20036 (202) 331-4100 Dated: February 16, 1978
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
OHIO EDISON COMPANY, et al.
~ ' - - -
) Docket Nos. STN 50-580
) STN 50-581 (Erie Nuclear Power Plant, )
Units 1 and 2) )
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing
" Motion to Dismiss Intervenors Evelyn Stebbins and Coalition for Safe Electric Power as Parties to This Proceeding" were served by deposit in the U. S. Mail, first class, postage prepaid, this 16th day of February, 1979, to all those on the attached Service List.
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- L tsf M h Mc6 W. Ttitirchill Dated: February 16, 1979
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before The Atomic Safety And Licensing Board In the Matter of )
)
OHIO EDISON COMPANY, et al.
-~ --
) Docket Nos. STN 50-580
) STN 50-581 (Erie Nuclear Plant, )
Units 1 and Si )
SERVICE LIST Alan S. Rosenthal, Esquire Elizabeth S. Bowers, Esquire Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel U. S. Nuclear Regulatory U. S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 Dr. Frederick P. Cowan Docketing and Service Section Apartment B-125 Office of the Secretary 6152 N. Verde Trail U. S. Nuclear Regulatory Boca Raton, Florida 33433 Commission Washington, D. C. 20555 Mr. Frederick J. Shon Atomic Safety and Licensing Ms. Evelyn Stebbins Board 705 Elmwood Road U. S. Nuclear Regulatory Rocky River, Ohio 44116 Commission .
Washington, D. C. 20555 Mr. Robert W. Tufts 352 West College Street Charles Barth, Esquire Oberlin, Ohio 44074 Office of the Executive Legal Director Dr. Richard E. Webb U. S. Nuclear Regulatory 2858 One Hundred Eleventh Street Commission Toledo, Ohio 43611 Washington, D. C. 20555 .
Mr. James R. Yore ,,
Chairman Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555