ML19346A022
| ML19346A022 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 05/26/1981 |
| From: | Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8106040356 | |
| Download: ML19346A022 (18) | |
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,. May 26, 1981 c- g i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION p occ B_EFORE THE ATOMIC SAFETY AND LICENSING TOARD gggt >
In the Matter of Y TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 4 ,
COMPANY, _et _al. ) 50-446 (Comanche Peak Steam Electric ) (Application for .. @ j/
Station, Units 1 and 2) ) \\' 9 Operating License)Bf &, e APPLICANTS' MOTION TO STRIKJ CFUR .g7' CONTENTIONS FOR DEFAULT c JU.10 31981
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Pursuant to 10 C.F.R. $$2.707 and 2.730(c), Texasv ,.
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Utilities Oneating Company, et al. (" Applicants") hereb b'I move the Atomic Safet.v and Licensing Board (" Board") in the captioned proceeding for an order (1) declaring Intervenor Citizens for Fair Utility Regulation ("CFUR") in default for failure to comply with the Board's April 13, 1981 Memorandum and Order concerning discovery; and (2) striking from this proceeding Contentions 2, 7 and 8 in view of CFUR's default.
I. BACKGROUND on August 13, 1980, Applicants served their first set of interrogatories and requests to produce on CFUR. Those inter-rogatories concerned Contentions 2, 5, 7 and 9. regarding ver-ification and acceptance of computer codes, quality assurance /
quality control, rock overbreak and groundwater withcrawal, l respectively. 1/ CFUR filed on September 2, 1980, a motion .
~1/ On December 31, 1980, the Board issued a Memorandum and +O 9\
Order designating ACORN the lead party intervenor for contention 5. Accordingly, Applicants' instant motion Of does not concern interrogatories directed at CFUR with respect to Contention 5, or CFUR's responses thereto.
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~ 1 for extension of time in which to respond to Applicants' interrogatories. Neither the Applicants nor the NRC Staff opposed that motion, and CFUR filed its responses in accordance with its request on September 15, 1981. 2/ l On September 30, 1980, Applicants flied motions !
to compel responsive answers to Applicants' first set l r
of interrogatories to CFUR and to require supplementation of responses. The NRC Staff filed an answer to Applicants' ,
motions on October 20, 1980, in which the Staff supported
. Applicants' motion to compel with respect to all but one interrogatory, and supported Applicants' motion to require i supplementation with respect to all but one interrogatory. I CFUR did not respond to Applicants' motions. !
The Board ruled on Applicants' motions to compel and to require supplementation in a Memorandum and Order dated April 13, 1981 (" Memorandum and order" or " Order").
The Board granted those motions and ordered that CFUR
" file complete responses by April 30, 1981" to 60 inter-f rogatories which the Board found had not been properly answered by CFUR, and that CFUR " supplement its responses 2/ On September 18, 1980, CFUR filed a motion for protection j with respect to Applicants' discovery requests. The Appli- i cants and the NRC Staff served answers opposing that motion i on October 3 and October 9, 1980, respectively. The Board ;
issued its " Denial of CFUR's Motion for Protection" on i December 5, 1980.
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. . . as soon as the information requested is developed or obtained" with respect to 44 interrogatories. Subsequently, CFUR requested and the Board granted, an extension of time until May 8, 1981, in which to respond to Applicants' interrogatories which were the subject of the Board's Memorandum and Order.
On May 8, 1980, CFUR filed its " Supplement to Answers to Applicants' First Set of Interrogatories to CFUR and Requests to Produce." Therein, CFUR purports to file answers to Applie nts' discovery requests concerning Con-tontions 2 and 7 in accordance with the Board's Memorandum and Order. However, many of those answers are not complete responses as ordered by the Board and thus, as discussed more fully below, do not comply with that Order. In addition, CFUR does not provide any responses to the interrogatories which concern Contention 8. Thus, CFUR also wholly fails to comply with the Board's Order with respect to. Contention 8.
CFUR's failure to comply with the Board's Memorandum and Order constitutes a default under 10 C.F.R. {2.707. For the reasons set forth below, the Applicants urge the Board to strike from this proceeding the contentions as to which ;
i CFUR has violated the Board's Order by not providing adequate responses to valid discovery requests as required by that ,
Order.
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L II. APPLICANTS' MOTION TO STRIKE The Board possesses the authority under the NRC Rules of Practice and applicable case law to find CFUR in default for failing to comply with the Board's Memorandum and Order. :
Further, the Board has the discretion, as a sanction for such default, to strike from this proceeding the conten-tions dealt with in the Applicants' interrogatories to which CFUR failed to provide complete answers. Applicants move the Board to find CFUR in default and to strike Contentions F
2, 7 and 8 from this proceeding.
A. The Board Should Find CFUR In Default The NRC Rules of Practice authorize the Board to -
declare a party in default for, inter alia, failure to ;
comply with any discovery order entered by the Board pursuant to 10 C.F.R. $2.740. 10 C.F.R. $2.707. Accordingly, the i
Board need find only that CFUR has failed to comply with the Board's April 13, 1981 Memorandum and Order compelling complete responses to Applicants' discovery requests in order to declare CFUR in default. As discussed below, CFUR
- has not complied with that Order and is therefore in default.
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- 1. Contention 2 Interrogatories. The Board's Memo- !
randum and Order required that CFUR provide complete responses to 26 of Applicants' interrogatories regarding Contention 2. - l CFOR simply responded to 9 of those 26 interrogatories with l the statement that it has conducted " inadequate discovery at I
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this time" to provide an answer. CFUR's answers to 6 other f interrogatories are not complete answers as. ordered by the Board. Thus, a majority of CFUR's answers to interrogatories concerning Contention 2 do not comply with the Board's Order.
Each of the interrogatories to which CFUR responds that it has conducted " inadequate discovery" to answer l (Interrogatories 15, 20, 23, 39, 46, 52, 54, 56 and 62) seek the. basis for CFUR's answer to previous interrogatories. :
i The Board stated in its Order with respect to those inter- j rogatories that " Applicants are clearly entitled to seek the legal or technical bases for a CFUR claim and the information ;
available to CFUR to support its positions," and CFUR should I provide " direct, straightforward answers." Order at 5.
"[A] refusal to respond based on a claim of awaiting further i i
discovery . . . is not sufficient without specifying in i what manner or what facts or what discovery requests are l pending in that regard." Boston Edison Co. (Pilgrim Nuclear !
Station, Unit 2), LBP-75-30, 1 NRC 579, 585 (1975). This
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Board recognized this fact recently when it noted as to i CASE that "[t3he Board sees no justification for allowing j CASE to postpone answering interrogatories pertaining to l l
Contention 22 on the basis that CASE is seeking further !
information or is engaging in discovery regarding Contention 22." Memorandum and Order (May 21, 1981). CFUR has not, -
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therefore, complied with the Board's Order to respond to i o !
these 9 interrogatories. !
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In addition, CFUR has not provided responsive or com- [
l plete answers to 6 other interrogatories which deal with l Contention 2 (Interrogatories 27, 29, 30, 32, 33 and 35) i and which were the subject of the Board's Order. Inter- I rogatories 27 and 30 seek specification of CFUR's claim j t
that computer codes and reports have not been " formally [
accepted" by asking what CFUR contends Applicants must do to ;
r have the reports and codes " formally accepted" and what l Applicants must do to demonstrate that the reports and codes have been formally accepted. Interrogatories 29 and 32 ask for the bases for CFUR's answers to Interrogatories 27 and 30, respectively. CFUR responds to Interrc; story 27 by sim-t ply stating " provide suitable verification to Strif with proof," l and refers to this answer in its response to Interrogatory 30.
CFUR responds to Interrogatory 29 by saying "the only way" for the reports and codes to be used in the " regulatory process" l is for the Applicants to suitably verify and the Staff to j i
evaluate and independently verify those reports and codes. !
CFUR refers to this answer in its response to Interrogatory 32.
) In short, CFUR has done no more in its answers to these i l
l interrogatories than repeat the wording of its contention and does not specify its claims as the Board ordered. Order at 8.
t Accordingly, to the extent these interrogatories seek infor-l mation concerning the " formal acceptance" of the computer -
codes and reports, CFUR's answers do not comply with the Board's Order.
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Interrogatories 33 and 35 ask that CFUR identify the " conclusions" based on the computer codes which CFUR claims are " invalid," and that CFUR set forth the bases for its answer. CFUR identifies only one set of conclusions, viz., the general findings set forth in 10 C.F.R. {50.57(a),
with which it is concerned and characterizes those conclusions as the ones with which CFUR is "most concerned." CFUR does not identify any other conclusions with which it is concerned. Thus, CFUR's answer is not the clear, direct answer which the Board ordered. Order at 9. Also, CFUR does not set forth the legal or tectvical basis for its answer as the Board ordered. Order at 5.
For the foregoing reasons, CFUR has failed to comply with the Board's April 13, 1981 Order in regard to answering interrogatories concerning Contention 2. Accordingly, +
the Board should find CFUR in default of the Board's Order.
- 2. Contention 7 Interrogatories. In its April 13, 1981 Memorandum and Order, the Board ordered CFUR to file !
complete responses to 21 interrogatories which concerned Contention 7. CFUR's answers to 14 of those interrogatories do not comply with the Board's Order. Thus, CFUR should be found in default of that Order.
CFUR responds to eight of the interrogatories concerning '
contention 7 by indicating that it cannot provide answers -
because it has conducted " inadequate discovery at this time" (Interrogatories 108, 111, ll2.c., 114, 125, 127, 129 and 132).
These interrogatories all request that CFUR identify its bases for its answer;* to other interrogatories. As the Board indi-cated in its Order, Applicants are entitled to such information.
Order at 5. See Boston Edison Co. (Pilgrim Nuclear Station, i Unit 2), supra, 1 NRC at 585.
For another six of the interrogatories involving Conten-tion 7, CFUR's answers are inadequate. (Interrogatories 105, 112.f., 116, 118, 121 and 123.) Again, these interrogatories all seek information on which CFUR relies for its basis for
. Contention 7. The Board ordered CFUR to provide in response to those interrogatories such information "in the form of technical information to support a particular technical posi- j tion, or in the form of regulatory or statutory requirements which CFUR claims Applicants have not, but must, satisfy."
Order at 5. Instead, CFUR merely restates its unsuppor5.ed ,
i position and suspicions, without specifying any information on which it relies to support its statements. Such answers do not comply with the explicit directions set forth in the Board's Order.
l Accordingly, the Board should find CFUR in default with ;
respect to those aspects of its Memorandum and Order which dealt with interrogatories directed at Contention 7. ;
- 3. Contention 8 Interrogatories. In its Memorandum and Order, the Board ordered CFUR to provide complete responses to 13 interrogatories which were directed at Contention 8. (Interrogatories 133, 138, 143.c., 145, l
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147, 149, 150, 151, 153, 160, 163, 165 and 167.) CFUR responded to these interrogatories, as follows:
C- ~~ unable to proceed further at this t w .itn esponses to Applicants' II. _ _ => ries addressed to Contention 8.
If it becomes able to proceed, CFUR will provide responses to Applicants' Inter-rogatories addressed to Contention 8 as soon as practicable. ["CFUR Supplement,"
May 8, 1981, at p. 8 (emphasia added).]
f CFUR gives no reasons for its failure to provide answers to these interrogatories. Neither does CFUR indicate that i
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it intends to provide answers. CFUR merely states that "if" it is able to proceed, it will do so. CFUR's response illustrates a flagrant disregard for the Board's authority and CFUR's responsibilities as a party. Accordingly, the Board should find CFUR in default of its Order with respect to Contention 8.
For the reasons set forth above, Applicants. move
- the Board to find, pursuant to 10 C.F.R. $2.707, that CFUR is in default for failure to comply with the Board's April 13, 1981 Memorandum and order concerning discovery. Applicants set forth below the reasons the Board should find that the appropriate sanction to impose for such default is to strike (i.e., dismiss) Contentions 2, 7 and 8. ,
B. The Board's Authority To Strike CFUR's Contentions i
The Board has the discretion to enter such orders , ,
I as are appropriate in response to a party's default. 10 C.F.R. 2.707. At the time 10 C.F.R. $2.707 was promulgated, i y - _ . - - . . _ _ .- - -_.e,.- . , _ , , ..,_-c. .,,,_,,y.g,. ,__,,y ,,,,,%_,,,,,p-,,.,___,y,97,,n_.,,+qww,y,,%_4
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the Commission made it clear that the presiding officer has the necessary authority to " impose appropriate sanctions on all parties who do not fulfill their responsibilities as participants." (Statement of Consideration, 37 Fed. Reg. 15127 (July 28, 1972) (emphasis added).) Thus, the Board possesses the authority to impose whatever sanction it i
deems proper to deal with a party's default. Applicants submit that the appropriate sanction in this instance is to strike Contentions 2, 7 and 8 from consideration in this proceeding.
NRC Licensing Boards and Appeal Boards have long recognized that dismissal of a party or its claims 3/ is an appropriate sanction for failure to meet its responsibilities concerning discovery. The Federal courts have similarly interpreted the comparable provisions regarding discovery in the Federal Rules of Civil Procedure. Applicants set forth below a discussion of applicable NRC and Federal case law ,
which demenstrates that striking Contentions 2, 7 and 8 i from this proceeding would be an appropriate sanction for CFUR's default.
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-3/ In the instant motion, Applicants seek only dismissal '
of those portions of CFUR's case for which CFUR has committed the default. Thus, although the following discussion is equally applicable to dismissal of a party for default, Applicants seek only to have the -
Board strike Contentions 2, 7 and 8, which were the subject of the interrogatories dealt with in the Board's Order.
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Federal courts have ordered dismissal of a party's case for default under the provisions of Rule 37(b) of the Federal Rules of Civil Procedure for failure to respond to discovery requests or orders compelling discovery. 4/
In National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 640 (1976), the Supreme Court held that dismissal of a case was proper where " crucial interrogatories remained substa..tially unanswered despite numerous extensions . . .
and notwithstanding several admonitions by the Court and
[ broken 3 promises and commitments by the plaintiffs." The Supreme Court noted that the history of a party's disregard for meeting their responsibilities contributed to the deci-sion to dismiss the case. 427 U.S. at 641. The Court added that the sanction of dismiscal is intended not merely to penalize those who warrant such a sanction, but also to deter other parties who might be tempted to engage in such conduct absent such a deterrent. 427 U.S. at 643.
Other Federal courts have found dismissal of a party was warranted for failure to meet the reaponsibilities of a party with regard to discovery. See generally 4A Moore's 4/ The NRC Rules of Practice concerning discovery, 10 C.F.R.
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$2.740, are based on Federal Rules 26 and 37, see Stato-ment of Considerations, 37 Fed. Reg. 15127-28 (July 28, 1972), and are to be afforded the " broad, liberal inter-pretation" given the Federal Rules. Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-196, 7 AEC 457, -
461 (1974). Rule 37(b) of the Federal Rules provides that if a party fails to obey an order to provide or permit discovery the Court may enter an order " dismissing the action or proceeding or any part thereof."
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Federal Practice, 137.03. A plaintiff's failure to produce records in response to discovery requests even after Court t
orders compmtling discovery has been found to be sufficient l grounds for dismissing a cause of action. Mertens v. ,
Hummel, 587 F.2d 862 (7th Cir. 1978). Also, the First Circuit has held (1) that it is proper to dismiss a cause oi action for plaintiff's failure to answer interrogatories ;
after the District Court ordered him to do so, and (2) the District Court ~ properly refused to reconsider its order
, dismissing the case when plaintiff later proferred the answers. Kally v. United States, 338 F.2d 329 (1st Cir.
(1964).
With regard to an intervenor's responsibilities as a party in adjudicatory proceedings before the Nuclear Regulatory Commission, the Supreme Court has stated:
. . . it is still incumbent upon inter-venors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to dhe intervenors' position l and contentions. [ Vermont Yankee !
Nuclear Power Core. v. NRDC, 435 U.S. ,
519, 553 (1978)]. !
Discovery is one of the principal means for achieving such !
meaningful participation. Pennsylvania Power & Light Co. l l
(Susquehanna Steam Electric Station, Units 1 ar.I 2), ASLB l Memorandum and Order, January 4, 1980, slip op. at p. 3.
NRC Licensing Boards and Appeal Boards have held that failure of an intervenor in an NRC licensing proceeding to W F e n e , , - - - - --v-- r , ,, s ------n , e ,m, _.wm-me--, - - -
respond in a timely fashion to discovery requests, in particular where the Board has ordered responses by a certain date, are sufficient grounds for dismissing the intervenor from the proceeding. In Public Service Electric h and Gas Co. (Atlantic Nuclear Generating Station, Units 1 b and 2) LBP-75-62, 2 NRC 702 (1975), the Licensing Board declared an intervenor in default under 10 C.F.R. $2.707 for failing to comply with an order of the Board directing compliance with discovery procedures, and dismissed the :
intervenor as a party to that proceeding. A similar result was reached by the licensing board in Offshore Power Systems l (Manufacturing License for Floating Nuclear Power Plants),
LBP-75-67, 2 NRC 813 (1975), where the Board dismissed a Ero se intervenor from the proceeding for failing to comply with ;
discovery requirements, including a Board order compelling discovery. That Board noted that " occasional minor lapses I or inadvertent deviations" by " layman" parties may be ,
overlooked by t'.te Boards, but that while a party is not l i
required to obtain counsel in order to participate in NRC licensing proceeding., its failure to do so "does not vitiate [its] obligations to prosecute [its] case in accordance i
with the requirements of the Commission's Rules of Practice." i Offshore Power Systems, supra at 815-817. ;
Further, and very significantly, the Commission recently- l i
recognized that licensing cases must be expedited if huge ;
i unnecessary costs of delay are to be avoided. The Commission ,
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issued a Statement of Policy on the conduct of licensing proceedings-(CLI-81-8) on May 20, 1981, in which it urged licensing boards to consider sanctions against any party l which fails to meet its oblig ations imposed by NRC regulations.
The Commission noted that "the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations." CLI-81-8, slip op.
at 3. In particular, the Commission noted that one of the
. sanctions that might be appropriate is to " dismiss one or more of a party's contentions." Id. Accordingly, the requested sanction against CFUR is clearly within the realm of actions the Commission contemplates being taken by Licensing Boards in response to a party's failure to meet its responsibilities.
Finally, some Boards have. examined certain criteria in deciding whether to dismiss a recalcitrant intervenor. The Licensing Bos';d in Northern States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 URC 1298 (1977) dismissed several intervenors for failu.re to comply with the Board's order directing them to answer discovery requests. In reaching its decision to dismiss those intervenors, the Board evaluated the intervenors' contentions, the discovery requests directed to them, their potential for contributing-to the proceeding, and the requirements of a fair hearing.
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Id. at 1300-1301. Upon analysis of each of these factors, the Board concluded that absent meaningful participation by the intervenors little could be done to address their i concerns regarding the facility, and thus dismissal was appropriate. Id.
CFUR stands in much the same position as did the inter-venors who were dismissed in Tyrone. Applicants' discovery req'uests which CFUR has failed to answer are almost entirely attempts to learn the bases for CFUR's contentions. To cer- .
l mit CFUR to make skeletal contentions, keep the baseu for them secret, then require its adversaries to meet any con- f ceivable thrust at the hearing would be patently unfair, and ,
would make development of a s' ound record nearly impossib13.
Tyrone, supra at 1301. In addition, CFUR does not appear likely to make a useful contribution to the proceeding with respect to these contentions. CFUR has done no more than restate its position and unsupported claims in its answers to interrogatories which seek the bases for CFUR's position. Finally, to the extent that each of the issues involved here (verification of computer codes, rock overbreak !
and groundwater withdrawal) raises important issues, each will be addressed in the Final Environmental Statement and/or the Safety Evaluation Report and thus will be considered regardless of whether CFUR raises it in the hearings. In ,
any event, as the Board stated in Tyrone, absent responses I
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from the intervenors to valid discovery requests, little more can be done by the remaining parties to alleviate the concerns of the defaulting party. Id. at 1301.
For the foregoing reasons, Applicants move the Board to declare CFUR in default for its failure to comply with the Board's April 13, 1981 Memorandum and Order, and to strike Contentions 2, 7 and 8 from this proceeding as a sanction for CFUR's default.
Respec f ly submitted,
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- Nicho:.p . Reynolds Y '
William A. Horin DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.
Washington, D.C. 20036 (202)857-9817 Counsel for Applicants May 26, 1981 9
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION f
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
) .
TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 '
COMPANY, et al. ) 50-446
) i (Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating License) i i
I CERTIFICATE OF SERVICE .
I hereby certify that cooies of the-forecoing
" Applicants' Motion To Strike CFUR Contentions For Default" i
' in the above captioned matter were served upon the following i persons by deposit in the United States mail, first class ;
postage prepaid this 26th day of May, 1981. ;
Valentine B. Deale, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U.S. Nuclear Regulatory 1001 Connecticut Avenue, N.W. Commission !
Washington, D.C. 20036 Washington, D.C. 20555 Dr. Forrest J. Remick, Member Marjorie Ulman Rothschild, Esq.
Atomic Safety and Licensing Office of the Executive Board Legal Director -
305 E. Hamilton Avenue U.S. Nuclear Regulatory State College, Pennsylvania Commission r 16801 Washington, D.C. 20555 i Dr. Richard Cole, Member David J. Preister, Esq. I Atomic Safety and Licensing Assistant Attorney General [
Board Environmental Protection i U.S. Nuclear Regulatory Division t Commission P.O. Box 12548 [
Washington, D.C. 20555 Capitol Station l Austin, Texas 78711 Chairman, Atomic Safety and ,
Licensing Board Panel Mr. Richard L. Fouke .
f U.S. Nuclear Regulatory CFUR i Commission 1668B Carter Drive f Washington, D.C. 20555 Arlington, Texas 76010
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. I Arch C. McColl, III, Esq. Mr. Dwight S. Moore, Esq. !
701 Commerce Street West Texas-Legal Services Suite 302 100 Main Street (Lawyers Dallas, Texas 75202 Bldg.)
Fort Worth, Texas 76102 Je f fery L. Hart, Esq.
'4021 Prescott Avenue Mr. Chase R. Stephens Dallas, Texas 75219 Docketing & Service Branch U.S. Nuclear Regulatory Mrs. Juanita Ellis Commission President, CASE Washington, D.C. 20555 1426 South Polk Street Dallas, Texas 75224
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William A. Horin cc: Homer C. Schmidt Spencer C. Relyea, Esq.
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