ML19291B966

Motion to Dismiss Intervenors Ba Mccorkle & C Hinderstein from Proceeding.Intervenors Failed to Comply W/Aslb 790827 & 1005 Orders Requesting Complete Answers to Applicant Interrogatories.Certificate of Svc Encl

ML19291B966
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	11/09/1979
From:	Copeland J, Newman J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 7912140525
Download: ML19291B966 (11)

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E*' UNITED STATES OF AMERICA

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/ NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of S S

HOUSTON LIGHTING & POWER COMPANY S Docket No. 50-466 S

(Allens Creek Nuclear Generating S Station, Unit 1) S MOTION TO DISMISS INTERVENORS BRENDA A. McCORKLE AND CARRO HINDERSTEIN AS PARTIES TO THIS PROCEEDING Applicant moves the Board, pursuant to 10 CFR 52.707, to issue an order dismissing Intervenors Brenda A.

McCorkle and Carro Hinderstein ("Intervenors") as parties to this proceeding. Both Intervenors have failed to comply with orders by the the Board requiring them to furnish answers to Applicant's interrogatories.

I. BACKGROUND In its Order Ruling upon Intervention Petitions, dated February 9, 1979, the Board admitted Intervenors Hinderstein and McCorkle as parties to this proceeding and

• /

admitted several of their contentions.~ In subsequent ae

• / The Board admitted Hinderstein Contention 5 and McCorkle Contentions 2 and 10.

1582 078 7912140jijl3 G

orders dated March 30, 1979, and April 11, 1979, the Board

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admitted additional contentions of these two Intervenors.

In March, 1979, Applicant served a first set of interrogatories on each Intervenor, and, in addition, took their depositions. The interrogatories and depositions covered those contentions which had been admitted by the Board in its Order of February 9, 1979.--ww/

On July 3, 1979, Applicant served a second sat of interrogatories and request for production of documents on each Intervenor. These interrogatories were intended to probe the bases for contentions admitted subsequent to February, 1979, and to ask follow up questions on answers supplied to the first set of interrogatories and in the respective depositions of the parties. Neither Intervenor made a timely response to this second set of interroga-tories, either by the due date of July 23, 1979, or any time thereafter. In consequence, Applicant availed itself of the remedy provided by the regulations, filing with the Board on August 7, 1979, a motion requesting an order directing each

• / The Board admitted Hinderstein Contentions 3 and 9, and McCorkle Contentions 9, 14 and 17.

• • / Applicant's First Set of Interrogatories were served on Intervenors on March 13, 1979. Intervenor Hinderstein pro-vided responses on March 26, 1979, and Intervenor McCorkle provided responses on March 28, 1979. Intervenor McCorkle's deposition was taken on March 21, 1979, and Intervenor Hinderstein's deposition was taken on March 22, 1979.

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Intervenor to provide answers to Applicant's Second Set of Interrogatories addressed to each. Neither Intervenor filed a response to Applicant's Motion to Compel.

On August 27, 1979, the Board issued an order granting Applicant's motion and directing each Intervenor to provide " complete answers to Applicant's interrogatories served on these parties under date of July 3, 1979," within ten days of service of the order. In accordance with the Board's Order, responses were due from each Intervenor on September 11, 1979. After some seven weeks, Intervenor Hinderstein has simply never responded to the Board's August 27 Order.

Intervenor McCorkle did respond to the Board's August 27 Order, but her response was so deficient as to require another motion to compel. The Applicant's further motion to compel was filed on September 14, 1979. On October 5, 1979, the Board issued an order granting the motion, in part, and directed that Intervenor McCorkle respond within 14 days. The time to respond expired on

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October 24.

• / On September 19, 1979, Applicant served a third set of Interrogatories on Intervenor McCorkle. The answers were due on October 8. Intervenor McCorkle has neither answered them nor moved for additional time. In light of Intervenor McCorkle's past responses to orders from the Board, Applicant considered it unnecessary to file yet another motion to compel and chose instead to proceed with this motion.

i582 0B0 II. APPLICANT HAS A RIGHT TO FULL DISCOVERY OF INTERVENORS UNDER

- COMMISSION REGULATIONS The Commission's regulations as set forth in 52.714 require that contentions and their bases be set forth with reasonable specificity. From the statement of a con-tention "with reasonable specificity", the parties then proceed to obtain the necessary particularization of the issues through discovery. In most cases, discovery pursuant to 10 CFR S2.740 et seq. is the essential tool to " flesh out" the contention, to establish the litigable issue of fact.

Applicant's second set of interrogatories addressed respectively to Intervenor McCorkle and Intervenor Hinderstein were intended to do exactly that; that is, to flesh out" the bases for the contentions submitted by these parties.

A review of Applicant's interrogatories will demonstrate that their manifest purpose was to " pin down" the conten-tions of each Intervenor so as to be in a position to litigate the contentions of each at the hearing or, if appropriate, move for summary disposition.

Unless parties conscientiously fulfill their responsibilities during discovery, orderly adjudication is impossible. Applicant has the burden of proof in this proceeding (10 CFR S2.732) and unless permitted to inquire 1562 081

into the bases for Intervenors' contentions, discharge of that burden m'ay be extra difficult, if not impossible. As a licensing board recently noted:

"To permit a party to make skeletal contentions, keep the bases for them secret, then require its adversaries to meet any conceivable thrust at hearings would be patently unfair, and incon-sistent with a sound record."

Northern States Power Company, et al. (Tyrone Energy Park, Unit 1) LBP-77-37, 5 NRC 1298, 1300-1301 (1977).

III. THE BOARD SHOULD DISMISS INTERVENORS AS PARTIES TO THIS PROCEEDING The Commission's regulations specifically provide the Board with authority to take appropriate action for failure to comply with discovery orders. Section 2.707 of the Commission's regulations provide in relevant part:

"On failure of a party. . .to comply with any cliscovery order entered by the presiding officer pursuant to S2.740,. . .the presiding officer may make such orders in regard to the failure as are just, including, among others, the following: (a) without further notice, find the facts as to the matters regarding which 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:

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4 "Section 2.707, Default, has been amended to provide sanctions for failure to comply 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 impcse appropriate sanctions on all parties who do not fulfill their responsibilities as participants." ,

37 Fed. Reg. 15127 (July 28, 1972) (emphasis added). Thus, it is unquestionable that the Board has all necessary authority to apply appropriate sanctions for failure to comply with the Commission's discovery rules and its own orders of August 27 and October 5, 1979.

One of the appropriate sanctions for failure to comply with Board orders relating to discovery is dismissal from the proceeding. Thus, in the Tyrone proceeding, supra, intervenors were dismissed by the Board for failure to respond to discovery requests and defaulting on a discovery order issued by the Board under Section 2.740. 5 NRC 1298, 1300. Similarly, Licea. sing Boards in other cases have dismissed intervenors for refusing to comply with Board orders compelling discovery pursuant to Section 2.740.

Public Service Electric and Gas Company (Atlantic Nuclear _

Generating Station, Units 1 & 2) , LBP-75-62, 2 NRC 702, 705-706 (1975); Cffshore Power Systems (Manufacturing ..

License for Floating Nuclear Power Plants) LBP-75-67, 2 NRC 813, 814-817 (1975).

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Stailar sanctions of dismissal are common in the Federal cour'ds under the analogous Rule 37(b) (2) of the Federal Rules of Civil Procedure for parties who fail to comply with the discovery rules.-*/ Indeed, the U. S.

Supreme Court has sanctioned the dismissal of plaintiff's action for failure to comply with discovery requests.

National Hockey League v. Metropolitan Hockey Club, Inc.,

427 U.S. 639 (1976), rehearing denied, 429 U.S. 874 (1976).

Finally, two special and important considerr r3 are relevant to the dismissal of 7ntervenors Hinderst: mn and McCorkle. First, neither Intervenor made any attempt whatsoever to explain to the Board why she failed to respond to Applicant's interrogatories. Neither even bothered to file an answer to Applicant's Motions to Compel, and neither has explained her failure to comply with the Board's orders compelling further answers. Indeed, at this late date no excuse could suffice. Intervenors have contumaciously refused to abide by the rules of this agency and have flaunted the authority of this Board without so much as an explanation. Second, both Intervenors are attorneys (see

• / Mangano v. American Radiation and Standard Sanitary Corp.,

T38 F.2d 1187, 1188 (3rd Cir. 1971); Fond Du Lac Plaza, Inc.

v. Reid, 47 F.R.D. 221 (E.D. Wis. 1969); Shepard v. General Motors Corp., 42 F.R.D. 425 (N.D. Ill. 1967). ___

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McCorkle Deposition, p. 3, Hinderstein Deposition, p. 3) ;

therefore, t.h'ey are held to a higher standard than a non-attorney pro se intervenor. Intervenors must be deemed to be fully cognizant of the Commission's regulations with respect to discovery and the consequences of failing to comply with the Board's discovery order.

IV. CONCLUSION Intervenors have failed, without excuse, to comply with the Board's orders compelling answers to interroga-tories. Given the facts set forth above, Commission precedent clearly indicates that both Intervenors should be dismissed from further participation in this proceeding.

Respectfully submitted, W i OF COUNSEL: J. egory fopgland /

C. omas BidMe, Jr.

BAKER & BOTTS Ch les G. Thrash, Jr.

3000 One Shell Plaza 3000 One Shell Plaza Houston, Texas 77002 Houston, Texas 77002 LOWENSTEIN, NEWMAN, REIS, Jack R. Newman AXELRAD & TOLL Robert H. Culp 1025 Connecticut Ave., N.W. 1025 Connecticut Ave., N.W.

Washington, D. C. 20036 Washington, D. C. 20036 ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER COMPANY l5J2 035 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of S S

HOUSTON LIGHTING & POWER COMPANY S Docket No. 50-466 5

(Allens Creek Nuclear Generating S Station, Unit 1) S CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Motion to Dismiss Intervenors Brenda A. McCorkle and Carro Hinderstein as Parties to This Proceeding in the above-captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand-delivery this M day of M , 1979.

Sheldon J. Wolfe, Esq., Chairman Richard Lowerre, Esq.

Atomic Safety and Licensing Assistant Attorney General Board Panel for the State of Texas U.S. Nuclear Regulatory Commission P. O. Box 12548 Washington, D. C. 20555 Capitol Station Austin, Texas 78711 Dr. E. Leonard Cheatum Route 3, Box 350A Hon. Charles J. Dusek Watkinsville, Georgia 30677 Mayor, City of Wallis P. O. Box 312 Mr. Gustave A. Linenberger Wallis, Texas 77485 Atomic Safety and Licensing Board Panel Hon. Leroy H. Grebe U.S. Nuclear Regulatory Commission County Judge, Austin County Washington, D. C. 20555 P. O. Box 99 Bellville, Texas 77418 Chase R. Stephens Docketing and Service Section Atomic Safety and Licensing Office of the Secretary of the Appeal Board Commission U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 R. Gordon Gooch, Esq. Atomic Safety and Licensing Baker & Botts Board Panel 1701 Pennsylvania Avenue, N. W. U.S. Nuclear Regulatory Washington, D. C. 20006 Commission Washington, D. C. 20555 i582 036

Steve Schinki, Esq. Carolina Conn Staff Counsel 1414 Scenic Ridge U.S. Nuclear Regulatory Commission Houston, Texas 77043 Washington, D. C. 20555 Elinore P. Cumings John F. Doherty Route 1, Box 138V 4327 Alconbury Street Rosenberg, Texas 77471 Houston, Texas 77021 Stephen A. Doggett, Esq.

Robert S. Framson . P. O. Box 592 Madeline Bass Framson Rosenberg, Texas 77471 4822 Waynesboro Drive Houston, Texas 77035 Robin Griffith 1034 Sally Ann Carro Hindarstein Rosenberg, Texas 77471 8739 Link Terrace Houston, Texas 77025 Leotis Johnston 1407 Scenic Ridge D. Marrack Houston, Texas 77043 420 Mulberry Lane Bellaire, Texas 77401 Rosemary N. Lemmer 11423 Oak Spring Brenda McCorkle Houston, 'fexas 77043 6140 Darnell Houston, Texas 77074 Kathryn Otto Route 2, Box 62L F. H. Potthoff, III Richmond, Texas 77469 7200 Shady Villa, #110 Houston, Texas 77055 Frances Pavlovic 111 Datonia Wayne E. Rentfro Bellaire, Texas 77401 P. O. Box 1335 Rosenberg, Texas 77471 Charles Pere:

1014 Montrose James M. Scott, Jr. Houston, Texas 77019 8302 Albacore Houston, Texas 77074 William Schuessler 5810 Darnell Bryan L. Baker Houston, Texas 77074 1118 Montrose Houston, Texas 77019 Patricia L. Strelein Route 2, Box 395C Dorothy F. Carrick Richmond, Texas Box 409, Wagon Rd. Rfd. #1 Wallis, Texas 77485 1582 007

Glen Van Slyke 1739 Marshall Houston, Texas 77098 Donald D. Weaver P.O. Drawer V Simonton, Texas 77476 Connie Wilson 11427 Oak Spring Houston, Texas 77043

- ATHA J. G gory p and /

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