ML20005B452
| ML20005B452 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/06/1981 |
| From: | Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8107080242 | |
| Download: ML20005B452 (8) | |
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m 07/06/81 UriITED STATES OF AMERICA liUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AllD LICEliSIliG BOARD In the Matter of
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' TEXAS UTILITIES GENERATING COMPANY, et al.
Docket Nos. 50- 4 7 Q 'O
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(Comanche Peak Steam Electric Station,
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0 9-4 ** p liRC STAFF'S RESP 0 HSE TO ACORN'S MOTION
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FOR VOLUllTARY DISMISSAL
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On June 16, 1981, Intervenor Texas Association of Community Organiza-tions for Reform Now ("ACORil") filed with the Atomic Safety and Licensing Board (" Licensing Board") a " Motion for Voluntary Dismissal" (" Motion").
In its Motion, ACOR!i stated that it "has limited funds and cannot afford to pay" what it described as "the consultants and expert witnesses who are necessary to continue this litigation." ACORN concluded that "[i]t has therefore becone necessary for Intervenor ACORN to ask this Board for a voluntary dismissal from this proceeding." For the reasons set forth below, the NRC i
Staff (" Staff") does not oppose the Motion filed by ACORN, and recommends l
l that ACORN be dismissed from this proceeding along with each of the conten-tions which had been sponsored solely by ACORN and which have been admitted for the purpose of litigation herein.
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. Discussion ACORti timely filed its p'etition for leave to intervene in this proceed-ing in March 1979,E and filed its initial set of contentions on flay 7, 1979.E On June 27, 1979, ACORll was admitted to the proceeding as an Inter-venor.E On June 16, 1980, the Licensing Board issued its' ruling on the admissi-bility of the Intervenors' contentions, in which it admitted 17 of ACORii's contentions.O Those contentions were somewhat modified and were combined, in part, with contentions filed by the two other In,tervenors in this pro-ceeding.E ACORil's contentions were then renumbered as Accepted Conten-tions 4 (jointly with CFUR), 5 (jointly with CFUR and CASE), 10, 11, 12, 13, 14,15,16,17,18',19', 20, 21, 22(f) (jointly with CASE), 23 (jointly with CASE), and 24(a) (jointly with CASE).E Accepted Contention 11 was M The notice of opportunity for hearing, published in the Federal Reaister on February 5, 1979 (44 Fed. R_e_q. 6995), required petitions for leave to intervene to be filed by March 5,1979. ACORi1 filed its " Petition for Leave to Intervene and Request for Hearing" on March 2,1979, and filed its "First Amended Petition for Leave to Intervene and Request for Hear-ing" on March 29, 1979, pursuant to an extension of time granted by the Licensing Board.
U " Supplemental Petition and Contentions of Intervenors, ACORil, Mary and Clyde Bishop and.Oda ana William Wood", dated May 7, 1979.
U " Order Relative to Standing of Petitioners to Intervene", dated June 27, 1979 (at 10).
O " Order Subsequent to the Prehearing Conference of April 30, 1980", lated June 16, 1980 (at 6).
E The other Intervenors are Citizens for Fair Utility Regulation ("CFUR")
and Citizens Association for Sound Energy (" CASE").
O ee " Order Subsequent to the Prehearing Conference of April 30, 1980",
S n.4 suora, at 10-17.
. subsequently " dropped" by the Licensing Board, by Order of October 31, 1980.E The Intervenors were consolidated for those contentions asserted by more than one Intervenor, and each Intervenor was designated as the " lead party-intervenor" for all contentions which that intervenor, alone, had sponsored.0/ ACORit was designated as " lead party-intervenor' for conten-tions 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21, which it, alone, had asserted, as well as for contentions 5 and 23 which it had sponscred jointly withotherintervenors.O The Licensing Board explained that "the lead party-intervenor for a particular contention is for all purposes in this proceeding unless specifically provided otherwise by the Board".N After the Licensing Board had ruled upon contentions and consolidated the Intervenors, ACORl4 failed to take virtually any action whatsoever to litigate its contentions in this proceeding.
While the other Intervenors have actively filed numerous discovery requests in connection with their contentions, the Staff is not aware of any such requests having been filed by ACORll.
Similarly, while the other Intervenors have filed responses and/or objections to the discovery requests filed by the Applicant and the E "Relings o, Objections to Board's Order of June 16, 1980 and on Miscel-laneous Motions", dated October 31, 1980 (at 1-2, 4).
U "liemorandum and Order (Rulings on Consolidation of Parties, Appointments of Lead Party-Intervenors, Hiscellaneous 110tions and other Matters)",
dated December 31,1980(at'12-13).
U _I d. -
E E, at 13.
. Staff, ACORN has virtually ignored those requests,b espite having been d
ordered i.o provide responses to some of them by the Licensing Board.E ACORN's failure to provide responses to legitimate discovery requests, depriving the Staff and the Applicant of necessary information as to ACORH's contentions and its positions prior to hearing, is in clear contravention of this Licensing Board's directive as expressed in the Order Granting Motion to Compel of April 13, 1981 (n.11, supra).
The Staff believes that had ACORN not filed its "Motico for Voluntary Dismissal", the Licensing Board would have been justified in dismissing ACORll as a party and in dismissing some or all of its contentions, pursuant to 10 CFR 9 2.707 and 2.718.
- See, e.g.,
Northern States Power Co_. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298 (1977); Offshore Power Systems (Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813 (1975); Public Service Electric & Gas Co. (Atlantic Huclear Gener-ating Station, Units 1 and 2), LBP-75-62, 2 HRC 702 (1975).
C_f_. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-358,'4 HRC 558 (1976).
E ACORN provided no response whatsoever to the Staff's discovery request, other than filing a motion for a one-month extension of time on Febru-a ry 6, 1981.
No further response was filed by ACORN to the Staff's dis-covery requests and the Staff, accordingly, has filed a motion to compel responses. That motion has not yet been ruled upon by the Licensing Board.
While ACORd did file a response to the Applicant's initial discovery requests, it provided no response whatsoever to the Applicant's subse-quent discovery requests.
Moreover, even the responses which ACORN did file were later deemed to be largely inadequate or unresponsive by the Licensing Board.
See " Memorandum and Order (Grant of Applicants' Modified Motions to Compel ACORN to Respond to and Also to Supplement Responses to Applicants' First Set of Interrogatories to ACORN and Requests to Produce)" (" Order Granting Motion to Compel"), dated April 13,1981.
E ee Order Granting Motion to Compel, n.11 supra.
S
d The Staff believes that ACORft's failure to provide virtually any infor-nation in response to legitinate discovery requests, which would support or elucidate its contentions -- notwithstanding the fact that it wes ordered.to do so by the Licensing Board -- effectively precludes the Licensing Board from being able to " determine that a serious safety, environmental, or common defense and security matter exists" (10 CFR 6 2.760a), and precludes the Staff and the Applicant from being able to litigate the merits of ACORit's contentions.
Cf. Tyrone Eneray Park, suora, 5 NRC at 1301. Accordingly, the Staff believes that each of the contentions which were sponsored' solely by ACORN -- i.e., contentions 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21 --
should be dismissed from this proceeding. E In addition, the Licensing Board should designate a new " lead party-intervenor" for contentions 5 and 23, which were sponsored jointly by ACORl1 and other Intervenors, and for which ACOR!4 had previously been designated lead party-intervenor.
b In an operating license proceeding where a hearing is convened as a result of intervention, the Licensing Board will resolve all issues raised by the parties and any issues which it raises sua sponte.
10 CFR 6 2.760a;~ Consolidation Edison Co. of New York (Indian Point fluclear Generating Station, Units 1, 2 & 3), ALAB-319, 3 NRC 188,190 (1976).
The decision as to whether any other catters need to be con-sidered prior to issuance of the operating license is the responsibility of the liRC Staff alone.
Indian Point, supra, 3 NRC at 190; Portland General Electric Co. (Trojan liuclear Plant), ALAB-181, 7 AEC 207, 209 n.7 (1974).
In the event that ACORit's Motion for Voluntary Dismissal is granted, the contentions solely advanced by ACORi{ would r.o longer be issues raised by a party and for the reasons stated in the text above, the Board lacks sufficient informatior to make the deterai-nation necessary to exercise its sua sponte jurisdiction.
Accordingly, the contentions sponsored solely by ACORu snould be dismissed.
. r Conclusion For the reasons set forth in more detail above, the Staff does not oppose 4
ACORit's Motion, and recommends that ACORf1 be. dismissed from this proceeding along with each of the eleven contentions which had been spc,nsored solely by ACORft.
I Respectfully submitted, A i.C/ C Sherwin E. Turk Counsel for liRC Staff Date'd at Bethesda, Maryland
-th s 6th day of July,1981 i
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a.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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TEXAS UTILITIES GENERATING COMPANY, ET AL.)
Docket Nos. 50-445
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50 145
'(Couanche Peak Steam Electric Station,
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Units 1 and 2)
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CERTIFICNTE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO ACORN'S MOTION FOR VOLUNTARY. DISMISSAL" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commis-sion's internal mail system, this 5th day of July,1981:
Marshall E. Miller, Esq. Cnairman*
Dwight H. liocre, Esq.
Administrative Judge West Texas Legal Services Atomic Safety and Licensing Board 100 Main Street (Lawyers Bldg.)
U.S. Nuclear Regulatory Commission Fort Worth, TX 76102 Washington, DC 20555 David J. Preister, Esq.
Dr. Forrest J. Remick, Administrative Assistant Attorney General Judge Environmental Protection Division Atomic Safety and Licensing Board P.O. Box 12548, Capital Station 305 E. Hamilton Avenue Austin, TX 78711 State College, PA 16801 Mr. Richard Fouke Dr. Richard Cole, Administrative Judge
- 1558-B Carter Drive Atomic Safety and Licensing Board Arlington, TX 76010 U.S. Nuclear Reguletory Commission Wasnington, DC 20555 Arch C. McColl III, Esq.
701 Commerce Street Nicholas S. Reynolds, Esq.
Suite 302 Debevoise & Liberman Dallas, TX 75202 1200 17th Street, N.W.
Washington, DC 20035 Jeffery. L. Hart, Esq.
4021 Presco.tt Avenue Mrs. Juanita Ellis Dallas, TX 75219 Presicent, CASE 1425 South Polk Street Dallas, TX 75224
,. Atomic Safety and Licensing Board Docketing and Service Section (7)*
Panel
- Office.of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington,_DC 20555 Washington, DC 90555
. Atomic Safety and Licensing Appeal Panel (5)*
U.S. Nuclear Regulatory Commission k'ashington, DC 20555 4,$M.$%
Sherwin E. Turk Counsel for NRC Staff 1
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