ML19350C924
| ML19350C924 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 04/09/1981 |
| From: | Stephen Burns NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SC, NUDOCS 8104100321 | |
| Download: ML19350C924 (6) | |
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April 9,1981 g,
APRoa1981 g t-u.a, UNITED STATES OF A!1 ERICA
'c' NUCLEAR REGULATORY C0t1 MISSION N
BEFORE THE AT0t1IC SAFETY & LICENSING BOARD In the ibtter of
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Docket No. 50-409 SC DAIRYLAfl0 POWER COOPERATIVE
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(Order to Show Cause)
(La Crosse Boiling Water Reactor)
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NRC STAFF'S r10 TION TO COMPEL CONSOLIDATED PARTIES' RESPONSE TO INTERROGATORIES On February 25, 1981, the NRC Staff served interrogatories on the consolidated parties in this proceeding, the Coulee Region Energy Coalition and Frederick M. Olsen III, which were to be answered by liarch 27, 1981, under the Board's Prehearing Conference Memorandum of January 5, 1981.
As of this date, the flRC Staff has received no answers to its interrogatories.
Pursuant to 10 C.F.R. 2.740(f), the NRC Staff moves that the Board enter an order compelling the consolida-ted parties to answer the interrogatories.
There is no question that the NRC Staff's interrogatories were authorized to be filed, were filed in a timely fashion, and were served on the consolidated parties in the nanner provided by the Comnission's rules of practice. */ See 10 C.F.R. 2.712 & 2.740b;
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Moreover, Counsel spoke with Anne Morse of the Coulee Region Energy Coalition by telephone on February 25, 1981, and specifically mentioned that the NRC Staff's interrogatories had been served on that date.
810.41006Al 9
- i. PrEhearing Conference Memorandun at 2.
Moreover, the interrogatories concerned matters clearly within the scope of the remaining natters in controversy.
Parties to NRC proceedings cannot ignore legitinate discovery requests.
Interrogatories must be either answered or objected to in the tine pernitted by the Board's order.
Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), ALAB-613,12 NRC 317, 322 (1980).
Failure to answer interrogatories constitutes a waiver of any objections thereto, and a party nay be conpelled by the Board to answer.
The consolidated parties' failure to answer is particularly dis-turbing in this show-cause proceeding in which the consolidated parties are the only proponents of an order requiring the licensee to install a site dewatering system.
Since the NRC Staff and the licensee agree that no dewatering system is necessary for the La Crosse site, a hearing is being held in this proceeding only because the consolidated parties had shown sufficient standing to request a hearing.
While the licensee nay carry the ultimate burden of persuasion even in this enforcement proceeding, the consolidated parties do bear some burden of going forward on their contentions. See Consumers 3
Power Co. (Midland Plant, Units 1 & 2) CLI-74-5, 7 AEC 19, 30-32 (1974), rev'd sub nom. Aeschliman vs. NRC, 547 F.2d 622, 628 (D.C.
Cir.1976), rev'd and remanded sub nom. Vermont Yankee Nuclear Power Corp. vs. NRC, 435 U.S. 519, 553-54 (1978).
O 7 Because the consolidated parties have not been required to file contentions in this proceeding, the NRC Staff's only way of deternin-ing the specific natters in controversy has been through discovery.
The NRC Staff's interrogatories seek information concerning the con-solidated parties' position with respect to the appropriate seisnic parameters for La Crosse and the evidence, if any, that constitutes the foundation for that position.
Such interrogatories are clearly in order to narrow the issues for trial and to detemine whether hearings are even necessary.
Pennsylvania Power & Light Co., supra,12 NRC at 340.
This marks the third time that the consolidated parties have failed to participate meaningfully in this proceeding.
On previous occasions, they have neglected to answer motions for sunmary judgment and have failed to file proposed findings af ter the December 1980 hearings.
While filings by the consolidated parties may not have been strictly required in those circumstances, these occasions certainly build a record that shows the consolidated parties have abdicated their responsibility to assume a significant participational role in this proceeding.
Continued abdication of this responsibility is a basis for dismissal from a proceeding, and the NRC Staff will not hesitate to seek such relief here.
See Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-358, 4 NRC 558, 560 (1976).
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! l While the Atonic Energy Act requires hearings when persons 1
denonstrate that they nay be adversely affected, neither the parties' interest nor the public interest is served by the conduct of unnecessary proceedings, particularly in enforcement cases.
The Comnission itself has said, "We believe that public health and safety is best served by concentrating inspection and enforcement resources on actual field inspections and related scientific and engineering work, as opposed to the conduct of legal proceedings." Public Service Co. of Indiana (flarole Hill Nuclear Generating Station, Units 1 & 2), CLI-80-10,11 NRC 438, 441 (1980).
If this proceeding is to serve any useful purpose, the consolidated parties must meet their obligations as litigants.
The NRC Staff's discovery requests were clearly in order and concerned relevant natters.
Accordingly, the NRC Staff moves that the Board order the consolidated parties answer the interrogatories within a reasonable time, but no later than 28 days after the Board's order.
The Board's order should also provide that failure to answer shall be considered grounds for dismissal from the proceeding.
Respectfully submitted, R g; k G 9 6 Stephen G. Burns Counsel to NRC Staff Dated at Bethesda, liaryland this 9th day of April,1980 J
L UNITED STATES OF AMERICA NUCLEAR REGULATORY COMitISSION BEFORE THE AT0ftIC SAFETY & LICENSING BOARD In the Matter of
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Docket No. 50-409 SC l
(Order to Show Cause)
DAIRYLAND POWER COOPERATIVE (La Crosse Boiling Water Reactor)
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CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFF'S MOTION TO C0ftPEL CONSOLIDATED PARTIES' RESPONSE TO INTERROGATORIES in the above-captioned proceeding have been served on the following by deposit in the United States nail, first class, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Comnission's internal nail system, this 9th day of April,1981.
Charles Bechhoefer, Esq.*
- 0. S. Hiestand, Esq.
Cha', mian Morgan, Lewis & Bocklus Atomic Safety & Licensing Board 1800 M Street, N. W.
V. S. Nuclear Regulatory Commission Washington, D. C. 20036 Washington, D. C. 20555 Atomic Safety & Licensing Board Panel
- Dr. George C. Anderson U. S. Nuclear Regulatory Commission Department of Oceanography Washington, D. C. 20555 University of Washington Seattle, Washington 98195 Atomic Safety & Licensing Appeal Panel
- U. S. Nuclear Regulatory Comission Mr. Ralph Decker Washington, D. C. 20555 Route 4, Box 1900 Ca, bridge, flaryland 21613 Mr. Frederick M. Olsen, III 609 N. lith Street Coulee Region Energy Coalition La Crosse, Wisconsin 54601 Attn: Ms. Ann K. Morse P. O. Box 1583 Docketing & Service Section La Crosse, Wisconsin 54601 U. S. Nuclear Regulatory Comnission Washington, D. C. 20555 Fritz Schubert, Esq.
Staff Attorney Dairyland Power Cooperative 2615 East Avenue, South La Crosse, Wisconsin 54601 Mr. Frank Linder p
l General Manager Dairyland Power Cooperative 2615 East Avenue, South La Crosse, Wisconsin 54601 Stephen G. Burns l
Counsel for NRC Staff l