ML19346A324

Response Opposing ASLB 810529 Order to Show Cause Why Applicant Should Not Be Sanctioned & Counsel Should Not Be Cited for Failure to Comply W/Aslb Direction.Applicant Misinterpreted ASLB 810310 Order.W/Certificate of Svc

ML19346A324
Person / Time
Site:	05000142
Issue date:	06/11/1981
From:	Woods G CALIFORNIA, UNIV. OF, LOS ANGELES, CA
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8106190137
Download: ML19346A324 (15)

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UNITED STATES OF AMERICA 5 NUCLEAR REGULATORY COMMISSION 6 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD -

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9 In the Matter of )

10 ) Docket No. 50-142 THE REGENTS OF THE UNIVERSITY ) (Proposed Renewal of Facility 11 OF CALIFORNIA ) License Number R-71)

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12 (UCLA Research Reactor) ) June 11, 1981

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13 14 APPLICANT'S RESPONSE TO THE BOARD'S ORDER TO "SHOW CAUSE" 15 16 17 81I19s DONALD L. REIDHAAR y 4 GLENN R. WOODS 18 # CHRISTINE HELWICK .

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. l 1 On June 1,'1981, Applicant, THE REGENTS OF THE 2 UNIVERSITY OF CAL 1FORMIA, received an '.rder of the Atomic Safety 3 and Licensing Board (the Board), dated May 29, 1981, directing 4 Applicant to "s' bow cause" why it is not appropriate under 5 10 C.F.R. 52.707 to impose a sanction and why counsel for

- 6 Applicant shculd not be cited under 10 C.F.R. 52.713 for refusal 7 to comply with a Board direction. Arplicant responds to the 8 Board's Order as follows.

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10 I. INTRODUCTION 11 12 The Commission's rules of practice provide for 13 sanctions that may be imposed on a party for failures to comply 14 with Board orders or pleading requirements or on a party's 15 counsc' *nr failures to comply with Board orders or otherwise 16 engaging in conduct that is disorderly, dicructive or 17 contemptuous. In such cases, the rules clearly contemplate 18 deliberat', wilful acts of the party or the party's counsel. -

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20 Respecting the Board's Order of March 10, Applicant 21 has not refused to comply but rather has acted with the belief 22 that it was complying fully with the Board's Order. AL the 23! Board's Order now makes clear, Applicant's counsel have 1

24' misinterpreted the Board's Order.

This misunderstanding and the 25l resulting " failure to comply" was not knowing, deliberate nor 26 wilful in any respect and Applicant's counsel by their conduct 27 certainly did not intend to act disruptively, nor contemptuously, 28 nor insultingly to the Board. Applicant's counsel interpreted 1

I the Board's March 10 Order to direct Applicant to make all its 2 records and documents available, that is, "to disclose all 3 relevant information." Applicant did not understand the order 4 to require Applicant to file a further written answers document.

5 6 Applicant submits that its misunderstanding was made 7 in good faith; that reasonable questions can be raised concerning 8 the clarity of the Board's Order of March 10; and, that under 9 such circumstances it would not be fair to impose sanctions on 10 Applicant or Applicant's counsel.

11 12 In support of this response, Applicant respectfully 13 requests that the Board consider three documents: " Declaration 14 of Glenn R. Woods in Response to Show Cause Order Pursuant to 15 10 C.F.R. 52.707 and S2.713", which is attached hereto; IS " Applicant's Further Answers to Intery.enor in Response to the 17 Board's Order of May 29, 1981", which is attached hereto; and 18 " Applicant's Memorandum in Opposition to Intervenor's Third Motion 19 to Compel; Request for Sanctions", dated May 28, 1981 and served

,?) that date and which the Board has not yet considered.

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- 22 II. DISCUSSION 23 .

24 A. Standards for Imposing Sanctions in NRC Proceedings 25 26 The Commission's rules of practice provide in

! 27' 10 C.F.R. S2.707 that on the failute of a party to comply with 28 any discovery order issued by the presiding officer pursuant to i

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1 52.740, the Commission or the presiding officer "may make such 2 orders in regard tc_such failure as are just." By its language 3 and as it has been applied in. commission proceedings, this 4 default provisi'on applies to deliberate failures ta comply and 5 not to " failures" that are inadvertent, not to failures that 6 occur because of reasonable mistake, and never to failures

-7, respecting which the party had no knowledge that the failure 8 occurred. 10 C.F.R. 52.707; Northern States Power Company, et 9 al., order, ASLB, May 31, 1977.

10 11 The Commission's rules also provide in 10 C.F.R. 52.713 12 that a presiding officer may, if necessary for the orderly 13 conduct of a proceeding, reprimand, censure or suspend any 14 representative of a party "who shall refuse to comply with its 4

15 directions, o.': Who shall be guilty of disorderly, disruptive, or 16 contemptuous conduct." Clearly, this sanction only applies to 17 deliberate, wilful conduct, conduct which questions the authority 18 cf the Board to direct the proceedings. ,

19 20 It is i:. appropriate to impose either sanction in 21 situations where the offending conduct is not deliberate and the-22 apparent affront is not intended.

23 24 B. Applicant's Reesonable Misinterpretation 25 26 Applicant interpreted the Board's March 10 Order as l

27 requiring Applicant to be " responsive" to Intervenor's requests 28 for relevant information, meaning that Applicant would make I

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I available its records and documents relevant to Intervenor's 2 questions and respond reasonably to Intervenor's requests for 3 examination of those records and documents. Applicant proceeded 4 to do just that. However, Applicant did not understand the 5 Board's Order to direct that Applicant file "further written 6 answers" to Intervenor's "first set" questions 4, 5, 6 and 9.

7 8 As the declaration of Glenn R. Woods, attached hereto, 9 makes clear, Applicant did not interpret the March 10 Order as 10 imposing no duty on the Applicant. On the contrary, Applicant 11 understood the Board's Order as directing Applicant to be 12 responsive by disclosing to Intervenor its relevant records and 13 documents. At the time of the issuance of the March 10 Order 14 Applicant was in the process of making its records available for 15 Intervenor's examination and has continued those actions, which 16 are lLnited only by Applicant's currently pending request for a 17 protective order. In good faith, Applicant did not understand 18 that the Board was directing Applicant to file "further written ,

19 answers.",

20 21 That Applicant's interpretation of the March 10 Order 22 was reasonable, although incorrect, can be seen by re-examining 23 the language of the March 10 Order and reviewing the context of 24 the pleadings on this subject filed prior to the issuance of the 25 order.

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1 The first. substantive paragraph of the Board's Order 2 discussed the May 13, 1980 letter from UCLA to the NRC staff which 3 Applicant failed to provide Intervenor and which led to the motion j .

4 -to compel of February 6, 1981. That paragraph concludes as 5 follows:.

6 "In our view, by the NRC rules for the .

production of documents . . . that letter 7 should have been nade available to CBG by

UCLA in response to CBG's first set of 8 interrogatories." (Emphasis added).

!- 9 The next paragraph begins as follows:

10 "Once again, we direct UCLA to be open l and candid as to the details of all 11 existing records." (Emphasis added) .

12 After advising CBG that Applicant is not required to create new 13 information or reshape its records, the Board continued in that 14 paragraph to state:

15 "Put more bluntly, UCLA shall not hold 16 back any informatien it possesses . . '.

and Intervenor shall t'ike advantage of the opportunities ~provided it by UCLA 17 to inspect and copv relevant documents,"

4 (Emphasis added).

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'All of the emphasized language suggested to Applicant

, that the Board was concerned with the production of documents and not with the provision of further written answers to Inter-venor's specific questions 4. 5, 6 and 9. Applicant further

notes that the Board's order did. not discuss-any of the subject questions, made no mention of further answers, and did not address any of the arguments set forth in Applicant's February 23,.1981 memorandum respecting the ambiguity of those i-28 questions, nor did the Board in any other manner explain its

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4 1 Moreover, Applicant had previously filed a document 2 entitled "Further Answers of The Regents of the University of 3 California to Intervenor's First Set of Interrogatories," dated 4 January 22, 1981, subsequent to the Board's initial order on this 5 matter, which was dated December 22, 1980. No comment was made 6 regarding the sufficiency of this response and, as a result, ,

7 Applicant assumed that the production of documents and records 8 for inspection was a reasonable and accepted approlch. Indeed, 9 as Applicant's February 23, 1981 memorandum demonstrates, 10 Applicant believed that the issue presented to the Board was 11 whether Applicant should have made available its May 13, 1980 12 letter to the NRC Staff which included the table on operating 13 time which Intervenor deemed relevant to its contention.

14 Applicant submits that the language of the Board's Order could 15 reasonably be understood as directing UCLA to be responsive by 16 disclosing all records and documents, like the document dated 17 May 13, 1980, rather than calling for further written answers.

18 19 C. Applicant's Related Pleadings 20 21 Applicant respectfully requests that the Board fully 22 consider " Applicant's Memorandum in Opposition to Intervenor's

'3 Third Motion to Compel; Request for Sanctions," dated May 28, 24 1981.

25 26 That memorandum explains Applicant's interpretation of 27 the Board's Order and reviews the basis for Applicant's 28 opposition to Intervenor's first set of questions. On those 6

I matters Applicant can only urge the Board to review carefully 2

Applicant's arguments in support of its opposition to Intervenor's 3 questions. In particular, Applicant requests that the Board 4 re-examine all'of Applicant's arguments related to questions 5

4 and 5. Applicant it still uncertain as to the interpretation 6 of these questions and Intervenor has not been helpful in 7

relieving any of this uncertainty in simply repeating its 8

complaints that we are being unresponsive. Notwithstanding that 9

Applicant is now providing further answers to Intervenor in response to the Board's Order, Applicant continues to assert that 11~

there exists substantial justification for its cpposition to 12 Intervenor's questions and that Applicant's opposition on these 13 matters has been brought before the Board in good faith.

14 15 Applicant further requests that the Board consider 16

" Applicant's Further Answers to InterSenor in Response to the Board's Order of May 29, 1981." In that response, Applicant has 18 gone beyond the Board's directive that Applicant answer -

19 Intervenor's questions. Applicar.t has provided a broad 2r explanation of Applicant's reactor operations and a chart which I

21 l summarizes the relevant financial activity of the Nuclear Energy '

22 Laboratories during the past six years. Applicant's staff have 23 spent over thirty person hours in the last several days deriving 24 this data and preparing the chart and explanation. Applicant is 25 attempting to extend the data for earlier years but that effort 26i will be time-consuming and limited because of the incompleteness, of the data. Moreover, at Intervenor's request, Applicant will 28 have its staff explain in more detail, at a scheduled record 7

1 examination session, its methods of recording reactor usage .

2 and income and other matters pertaining to its financial activity.

3 4 Applicant undertakes these additional efforts as a 5 showing of good faith and with the understanding that the Board 6 has advised Intervenor that Applicant is not required to " create 7 new informatior. or engage in a work effort to reshape its records 8 to Intervenor's categories."

9 10 III. CONCLUSION 11 12 Applicant concedes that, in retrospect, it should have 13 sought clarification from the Board regarding its March 10 Order.

14 In failing to do so, however, and interpreting the Order as it 15 did, Applicant did not intend to refuse to comply with the 16 directive of the Board. For the reasons above, and those 17 contained in the related pleadings, Applicant respectively 18 requests that the Board make the following rulings: ,

19 20 (1) That Applicant's actions were based on a 21 reasonable misinterpretation of the Board's March 10 Order and 22 that no cause exists to impose sanctions on Applicant or i

23; Applicant's counsel; 24 25 (2) That Applicant continue to make available

26. its records and documents and provide some assistance to 27l Intervenor by explainio; how it collects and records its reactor 28 usage and income data; 8

1 (3) That, in consideration of Applicant's offer 2 of its records and related assistance and the reasonable questions 3 that have bben raised as to the certainty of some of Intervenor's 4 questions, Applicant's further answers served June 11, 1981 are 5 responsive to Intervenor's questions; an'd 6 ,

7 (4) That Intervenor, as it wishes, pursue its 8 inquiry into these matters by means of follow-up questions 9 according to the schedule set by the Board for the other 10 interrogatories that parties may wish to submit in these 11 proceedings.

12 13 Applicant respectfully submits that the requested 14 rulings are fair and that they will do much to expedite these 15 proceedings.

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17 Finally, Applicant wishes to advise the Board that it 18 is prepared to stipulate as to its financial activities, which 19 are unexceptional and raise no special issues.

Applicant is 20 prepared to demonstrate that with respect to Conte. tion II 21 (" wrong class of license") there are no material facts in dispute 22 and the contention is suitable for summary disposition.

23 24 Dated: June 11, 1981 25 . DONALD L REIDHAAR GLENN R. WOODS 26 CHRISTINE HELWICK 27 28 By L M Glenn R. Woods 9

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4 UNITED STATES OF A!! ERICA NUCLEAR REGULATORY COMMISSION ,

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 6

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In the Matter of ) Docket No. 50-142 9 ) (Proposed Renewal of THE REGENTS OF THE UNIVERSITY ) Facility License) 10 OF CALIFORNIA )

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11 (UCLA Research Reactor) )

)

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14 DECLARATION OF GLENN R. UOODS IN RESPONSE TO " SHOU CAUSE" 15 ORDER PURSUANT TO 10 C.F.R. S 2.707 AND S 2.713 16 17 -

18 Dated: June 8, 1981 '

19 20 21 22 DONALD L. REIDHAAR GLENN R. WCOCS 23 -

CHRISTINE HELUICK 590 University Hall 24 2200 University Avenue

[ Berkeley, California 94720 25 Telephone: (415) 642-2822 26 -

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1 .I, Glenn R. Foods, say:

2 3 1. I am an Associate Counsel of The Regents of 4 the University of California.

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6 2. It is apparent that my letter of .May 1, 1981 7 has been interpreted to suggest that UCLA believed that it 8 was not required to do anything further in response to the 9 Board's March 10 order. This was certainly not the case and 10 I apologize to the Board for giving that impression. There 11 was never any question in our minds that the Board had 12 ordered UCLA to be responsive to Bridge the Gap's interroga-13 tories. The only question which was intended to be discussed 14 in the letter of May 1 was whether the Board's order contem-15 plated further written answers in ad'd'ition to the response 16 which was actually made.

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18 -3. When the Board's order of March 10, 1981, was 19 received there was concern that we immediately comply with 20 the Board's directive. I contacted UCLA and informed the 21 staff that Bridge the Gap should be given access to every 22 document and record and all information in our files which 23 was in any way relevant to these interrogatories. I was 24 informed that this would be done and I was also told that 25 UCLA was already in the precess of allowing Bridge the Gap 26 full and complete inspection. Therefore, it was my 2

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I belief that we were, at chat time, complying with what I 2 thought the Board was ordering--i.e., to be "open and candid 3 as to the details of all existing records" and "not hold 4 back any information (we] possessed which [was] relevant to 5 the Intervenor's interrogatories." I felt that these

, 6 actions were responsive to the above directions and to the 7 Board's specific order that "UCLA respond to CBG inter-8 rogatories with a " complete disclosure of all relevant 9 information." (Emphasis added.)

10 11 4. In addition, the campus staff also informed 12 me that when this process of disclosure was completed that 13 Bridge the Gap would have had access to all of the 14 information, records and materials which UCLA had in its 15 possession with regard to these interrogatories. Since this 16 was the case, and since the Board was aware that this 17 ~ inspection process was underway and had stated that UCLA was '

18 not required to create new information or engage in a work 19 effort to reshape its records, I assumed that there was some 20 significance in the fact that the Board did not order that 21 further answers be filed and in the different wording of the 22 Board's order of March 10, 1981 from its previous order. In I

23 other words, I assumed that UCLA's compliance with the 24 Board's order by production for inspection of all relevant 1

25 documents, information and details of records was responsive l

1 26 and that further written answers were not necessary. It is l 3 l l

4 I now clear that the Board intended otherwise and that we 2 should have gone one step further to file additional written 3 answers indicating exactly what information we were 4 providing to Bridge the Gap and how we were complying with 5 the Board's order. We are in the process of doing this'at 6 this time.

7 8 5. In summary, my letter of May 1, 1981, was 9 written under a time deadline and was not intended to 10 address all of the circumstances regarding our intentions 11 and actions taken in response to the Board's order. It 12 apparently created the in orrect impression that we were not 13 taking any action and I apclogize to the Board for the 14 inconvenience this has caused. The fact remains, however, 15 that we were making a good faith effort to comply with the 16 Board's order by giving Bridge the Gap all of the records, 17 information and materials relevant to these interrogatories -

18 and I had no intention, whatsoever, to refuse to comply with 19 the Board's order.

20 21 I declare under penalty of perjury that the 22 foregoing is true and correct. ,

23 24 Executed on June 8, 1981, at Berkeley, California.

25 26  :

Glenn R. Wccds 4

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.- i 1 UtIITED STATES OF AMERICA NUCLEAR PEGisT.ATORY CCbf4ISSION 2

BEFORE 'IHE ATCMIC SAETI"I A!iD LICDISING BOARD 3

4 In tPA Matter of ' ' )

) Docket No. 50-142 5 7HE PEGDTTS OF THE UNIVERSITY ) (Proposed Penewal of Facility OF CALIIDRNIA ) License Number R-71) 6 '

) .

(IXTA Pesearch Peactor) )

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8 a:.xanCAIE CF SERVICE 9 I hereby certify that ccpies of the attached: APPLICANT'S RESPONSE TO THE BOARD'S ORDER TO SHOW CAUSE 10 in the above-captioned proceeding have been served on tra follcuing by deposit 11 in the United States : rail, first class, postage prepaid, addressed as in-dicated, on this date: June 11, 1981 .

l' 13 Elizabeth Boers, Esq. Counsel for NPC Staff U.S. Nuclear Pegulatorf Ccmaission Office of tra Executive Iagal Director 14 Atcmic Safety & Licensing Board U.S. Nuclear Pegulatorf Ccrmission Washington, DC 20555 Washington, DC 20555 Dr. D:Taeth A. Luebke Daniel.Hirsch 16 U.S. Nuclear Pegulatory Ccrmissicn Ccmnit*a to Bridge tra Gap Atcmic Safety & Licensing Board 1637 Butler Avenue, #230 17 Washington, DC 20555 Ios Angeles, CA 90025 18 Dr. Oscar H. Paris Mr. Mark Pollock -

U.S. Nuclear Pegulatory Ccnttission Mr. John Bay 19 Atcmic Safety & Licensing Board 1633 Franklin Street Washington, DC 20555 Santa Mcnica, CA 90404 Chief, Docketing and Service Sectica (3) 21 Office of the Secretary U.S. Nuclear Pegulatorf Ccmnission 22 Washingten, DC 20555 23 24 / ,, p 25 William H. Cormier UCLA Representative 26 27 28