ML19332A486
| ML19332A486 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 09/12/1980 |
| From: | Gray J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8009160139 | |
| Download: ML19332A486 (5) | |
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09/12/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE'THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket No. 50-289
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(Three Mile Island Nuclear' Station,
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Unit 1)
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NRC STAFF'S RESPONSE TO' LICENSEE'S CONTINGENT
. REQUEST FOR SANCTIONS AGAINST ECNP CONTAINED IN LICENSEE'S MOTION FOR ORDER COMPELLING RESPONSE OF ECNP TO INTERROGATORIES I.
Introduction By motion filed on August 25, 1980,1_/ the Licensee in the captioned proceeding seeks, pursuant to 10.CFR S 2.740(f), an order from the Licensing Board com-pelling Intervenor ECNP to respond to the Licensee's July 29, 1980 interroga-tories on Revision 2 to the Emergency Plcn.
In addition, although not noted in the title to its motion, the' Licensee makes a contingent request that, should'ECNP fail to comply with any order compelling responses from ECNP, the Licensing Board promptly' dismiss ECNP contentions 2-4, 2-7, 2-11, 2-13, 2-20/2-30, 2-26 and 2-28 to which the Licensee's interrogatories are directed.
The NRC Staff's position with regard to the Licensee's contingent request for such sanctions is set forth below.2/
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Licensee's Motion to Compel Response of ECNP to Emergency Planning Interrogatories, August-25, 1980 (Motion).
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Under the Board's July 15, 1980 " Memorandum and Order Resuming Schedule for Discovery and Contentions on' Emergency Planning," answers to motions to compel were to:be received by-the Chairman within five days of service
'of such motion.
The. Staff did not file an answer to the specific portion of the instant Motion seeking an order compelling responses from ECNP.
The> July 15, 1980 Order does not set a time for responses to motions for sanctions for failure to comply with discovery orders. The time for
- responses to:such motions is governed by the provisions of 10 CFR SS 2.730 (c)'and.2.710..UnderJthese regulations,-the instant. response is to be filed by September 15, ~1980. -
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d II.
NRC Staff Position on Licensee's Contingent Request for Sanctions In its Motion, Licensee recites that, as of the time of the Motion, ECNP had not objected to the interrogatories in question, had not filed answers to those interrogatories, and had not sought an extension of time in which to file answers.
At this time, the Staff, for its part, is unaware of any filings by ECNP with regard to the interrogatories in question. Thus, it appears that ECNP has failed to respond in any manner to the Licensee's interrogatories.
In these circumstances, Licensee is entitled to an order compelling responses under 10 CFR a 2.740(f).
Should such an order be issued and ECNP fail to comply with it, Licensee further requests that the Board promptly dismiss ECNP contentions 2-4, 2-7, 2-11, 2-13, 2-20/2-30, 2-26 and 2-28.
The inter-rogatories propounded by the Licensee are, in fact, directed to these conten-tions and seek information on whether the Licensee's revised Emergency Plan adequately addresses and alleviates the concerns reflected in these conten-tions.3/ The information sought by Licensee in these interrogatcries appears 4
to be useful and perhaps even necessary for Licensee to thoroughly address the concerns raised by the contentions in question.
In these circumstances, it is the Staff's view that, should ECNP fail to comply with a Board order compelling responses, the Board has the authority ! to, and should, dismiss b
those contentions.
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See Licensee's Interrogatories to Intervenor Environmental Coalition on Nuclear Power on Revision 2 of Licensee's Emergency Plan, July 29, 1980.
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10 CFR H 2.707 provides that, upon a party's failure to comply with a discovery order, the presiding officer may impose such sanctions as are just.
Pursuant to this' regulation, intervenors have been dismissed from proceedings for failure to comply with discovery requests.
See Northern States Power Co., et al. (Tyrone Energy Park, Unit 1), LEP 37, 5 NRC 1298 (1977); Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813 (1975); Public (CONTINUE ON NEXT PAGE)
The Licensee's contingent request for a prompt dismissal of ECNP's contentions upon Intervenor's failure to comply with a Board order compelling discovery, though unusual, is rational and appropriate at this stage of the proceeding.
Through this request, the Licensee seeks to avoid the need for a further exchange of pleadings on this matter at a time when all parties are engaged in the final preparation for the hearing which commences on October 15, 1980.
In addition, by the Licensee's contingent request for sanctions, ECNP is given advance notice of the potential consequences of its failure to comply with any Board order compelling responses.
III. Conclusion Based on the foregoing, the Staff supports Licensee's contingent request for prompt dismissal of ECNP contentions 2-4, 2-7, 2-11, 2-13, 2-20/2-30, 2-26 and 2-28 should ECNP fail to comply with an order compelling responses to Licensee's interrogatories on these contentions.
Respectfully submitted, l JY-l
[JosephR. Gray Counsel for NRC Staff Dated at Bethesda, Maryland this 12th day of September, 1980 O
CONTINUED FOR PREVIOUS PAGE Service Electric & Gas Co. (Atlantic Cencrating Station, Units 1 & 2),
LBP-75-62, 2 NRC 702 (1975)..The less drastic remedy of dismissal of a limited number cf contentions has been used in the instant proceeding, specifically with regard to certain ECNP contentions which were the sub-ject of unanswered discovery requests. See Memorandum and Order on Licensee's Motion for Sanctions Against Environmental Coalition on Nuclear Power, June 12, 1980.
s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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MEIROPOLITAN EDISON COMPANY, ET AL.
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Docket No. 50-289
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(Restart)
(Three Mile Island Nuclear Station,
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Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO LICENSEE'S CONTINGENT REQUEST FOR SANCTIONS AGAINST E o CONTAINED IN LICENSEE'S MOTION FOR ORDER COMPELLING RESPONSE OF ECNP TO l'TERROGATORIES" in the above-captioned proceed-ing have been served on the follieing 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 12th day of September, 1980:
Ivan W. Smith, Esq.*
Mr. Steven C. Sholly Atomic Safety and Licensing Board 304 South Market Street U.S. Nuclear Regulatory Commission Mechanicsburg, PA 17055 Washington, DC 20555 Mr. Thomas Gerusky Dr. Walter H. Jordan Bureau of Radiation Protection 881 W. Outer Drive Department of Environmental Oak Ridge, TN 37830 Resources P.O. Box 2063 Dr. Linda W. Little Harrisburg, PA 17120 5000 Hermitage Drive Raleigh, NC 27612 Mr. Marvin I. Lewis 6504 Bradford Terrace George F. Trowbridge, Esq.
Philadelphia, PA 19149 Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
Metropolitan Edison Company Washington, DC 20006 ATTN:
J.G. Herbein, Vice President Karin W. Carter, Esq.
P.O. Box 542 505 Executive House Reading, PA 19603 P.O. Box 2357 Harrisburg, PA 17120 Ms. Jane Lee R.D. #3, Box 3521 Honorable Mark Cohen Etters, PA 17319 512 E-3 Main Capital Building Harrisburg, PA 17120 Senator Allen R. Carter, Chairman Joint Legislative Committee on Walter W. Cohen, Consumer Advocate Energy Department of Justice Post Office Box 142 Strawberry Square, 14th Floor Suite 513 Senate Gressette Building Harrisburg, PA.17127 Columbia, SC 29202
Holly'S. Keck John Levin, Esq.
Anti-Nuclear Group Representing PA Public Utilities Commission York Box 3265 245 W. Philadelphia Street Harrisburg, PA 17120 York, PA 17404 Jordan D. Cunningham, Esq.
John E. Minnich, Chairman Fox, Farr and Cunningham Dauphin Co. Board of Commissioners 2320 North 2nd Street Dauphin County Courthouse Harrisburg, PA 17110 Front and Market Streets Harrisburg, PA 17101_
Theodore A. Adler, Esq.
Widoff, Reager, Selkowitz & Adler Robert Q. Pollard P. O. Box 1547 609 Montpelier Street Harrisburg, PA 17105 Baltimore, 10 21218 Ms. Ellyn R. Weiss Chauncey Kepford Sheldon, Harmon & Weiss Judith H. Johnsrud 1725 I Street, N.W.
Environmental Coalition on Suite 506 Nuclear Power Washington, DC 20006 433 Orlando Avenue State College, PA 16801 Atomic Safety and Licensing Board Panel
- Ms. Frieda Berryhill, Chairman U.S. Nuclear Regulatory Commission Coalition for Nuclear Power Plant Washington, DC 20555 Postponement 2610 Grendon Drive Atomic Safety and Licensing Appeal Wilmington, DE 19808 Panel (5)*
U.S. Nuclear Regulatory Commission Ms. Karen Sheldon Washington, DC 20555 Sheldon, Harmon & Weiss 1725 I Street, N.W.
Docketing and Service Section (7)*
Suite 506 Office of the Secretary Washington, DC 20006 U.S. Nuclear Regulatory Commission Washington, DC 20555 Ms. Marjoric M. Aamodt R.D.
- 5 Coatesville, PA 19320 U/
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dbJosephR. Gray
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Counsel for NRC Staff
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