ML20009C981

Clarifies 810513 Motion for Sanctions Re Reimbursement of Reasonable Expenses by Intervenor Due to Applicant Failure to Comply W/Aslb Orders.Intervenor Made Three Motions to Compel,Taking 8 Months & Imposing Substantial Burden

ML20009C981
Person / Time
Site:	05000142
Issue date:	07/15/1981
From:	Pollock M COMMITTEE TO BRIDGE THE GAP, POLLOCK, M.
To:	Bowers E, Luebke E, Paris O Atomic Safety and Licensing Board Panel
References
NUDOCS 8107220283
Download: ML20009C981 (4)

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the nuclear :aw centers; 1724 NORTH LA DREA AVENUE e LOS ANGELES. CAUFORNIA 90046 . 213/851-9201 VD JUL-n/ 7 *l' /1 y ss co,u;g,1r I931w '

Elizabeth 3 3cuers, Esq., Chairman Dr. E neth A. Luebke N Adninistrative Judge Administrative Judge b S' ' '

Atonic 3afety and Licensing 3 card U.S. "uclear 3egulatcry Commission Atomic Safety U.S. "uclear and I,1Commissi Regulatory censing $ca k'on d, ~

Washington. D.C. 20555 Washington, D.C. 20555 Dr. Cecar H. Paris Adninistrative Jud 6e July 15, 1981 Atomic Sa#ety and Licensing 3oard U.3. ::uclear 3egulatory Cornission ~

'iashington, DC 20555 In the Matter of The Recents of the University of California _

" (UCLA Research Reactor) -

Docket No. 50-142 -

e Prorosed Renewal of Facility License e ,

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RE: CIARIFICATIO" 0F C3G FAY 13,1981, E0'ICN FOR SANCTIC..a . y -

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Dear Adninistrative Judges:

Cn Fay 29,1981, youz 3 card granted Intervenor's Third Motion to l Compel and directed Applicar.t to "'show cause' uhy it is not appropriate under 10 CFR 3 2.707 to impete a sanction." Applicant was also directed l to " shew cause" why counsel f or Licensee should not be cited under 10 CFR 2.713 for failure to comply with a 3 card direction. This occurred af ter two previous Ecard Crders and a clear warning in the second order that failure to " fully cooperate in responding to discovery requests in the future may well result in the imposition of sanctions by the Board under 10 CFR $ 2.707 "

The Fay 29 Crder sunrarized C3G's notion for sanctions as asking "that a sanction be imposed on UCLA for costs incurred by UCLA due to UCLA's failure to comply with Board orders."

As it appears there may be some confusion as to the nature of the requested sanctions, Intervenor herewith attempts clarification of its i Fay 13 Motion.1 1/OnJuly14,IntervenorleftaphenenessagewithasecretarytotheBoard

_ indicating said clarification would be forthconing.

D503 s, 8107220283 e10715 l PDR ADOCK 05000142 PDR

9 In that Motion, Intervenor requested, pursuant to 10 CFR 2.7]7 and F.R.C.P. Rule 37,1) an innediate favorable ruling on the contention in question (Contention II), and 2) an Order causing Applicant to pay the reasonable expenses incurred by Intervenor because of Applicant's failure to comply with 3 card orders.

As the sanction suggested in iten 1 above is the only sanction specifically nentioned in 10 CFR 2.707 ('"41thout further notice, find the facts as to the natters regarding which the crder was made in accordance with the cl.ain of the Tarty obtaining the order"), Intervenor uishes to nahe clear its request that such a sanct*on be considered.

Intervenor argued at the time that the requested sanctions weke very modest indeed when considering:

a) that ihna C3G Motions to Compel and it qq 3 card Orders had been necessary, taking eight months and inposiag a substantial burden on CBC and the 3 card.

b) that Applicant had, under oath, denied the existence, first of financial data relevant to the reactor and second of reactor use data relevant to connercial and other uses of the reactor, when in fact both sets of data were in Applicant's possession and Applicant had, in fact, sent the reactor use data to NRC Staff some conths previout c) that Applicant repeatedly failed to provide definitions for requested terns, at first claining that the sole function of the reae. tor was " education" and that no other activity occurred there, then providing CEG with financial data in respense to interrogatories as to terns when no such definitions could possibly be f:und in said accounting records.

d) that both Intervenor and Staff had, at the tine of the 2nd Fotion to Conpel, discussed in separate filings the possible appropriateness of sanctions at that tine; and that the Board in its 2nd Crder had put parties on notice that continued "ganesnanship" in discovery could well lead to imposition of sanctions.

and e) that no response whatsoever was forthconing from Applicant in response to the 3 card's 2nd Crder. (The clain that Applicant nerely thought it was ordered to provide documents, not written answers, cannot be sunported s

the docunents provided were all produced trior to the 2nd 3 card Crder. )

In fact, counsel for Applicant wrote on Fay 1 that Applicant was under no obligation to provide further infornation because the 3rd order did not say "The Motion to Compel is...GP. ANTED" and that merely "The 3 card was admonishing the University for what the 3 card considered 'less than frank' past interrogatory responses and directing the. University to be fully responsive to future discovery requests." (enphasis added).

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Intervenor wishes to also make clear that nothing has transpired in the two months since its initial Motion for Sanctions to indicate to Intervenor that the requested sanctions are anything but extremely modest, given the circumstances. To the contrary, recent events suggest more severe action may te in cruert

a. The " gamesmanship" over discovery appears to Intervenor to be continuing, threatening the 3M's ability to obtain a complete record on which to base a decision and also the rights of Intervenor to information necessar/ for the presentation of its case. Cf the extensive questions submitted in Interrogator / Set Two, only a ver/ small fraction were, in Intervenor's view, answered candidly and fully, necessitating the renewed turden on C3G and 3 card of dealing uith yet another Motion to Conpel. The 3 card has already been forced, in its July 1 Crder, to direct UCIA to answer certain questions in the Secor.d Sett still pending before it is the C3G Motion to Compel on questions for which no protective order was requested. Problems have likewise continued in obtaining complete production of documents,

b. The proceedings are getting delayed because of these discovery problems, and Intervenor, with its very limited resources, is finding that the tu~ien imposed on it by being forced to spend so much of its energy, time and financial resources attempting to obtain Applicant'1 compliance with discover / obligations and 3oard Crders is so great that its ability to concentrate its resources on preparation of its case for 3 card consideration is severely affected. Soard has no doubt noted the incompleteness of C3G's most recent Motion to Compel as to 2nd Set

, Interrogatories. C3G does not have the resources of the University of l California and simply cannot succeed in presenting an adequate evidentiar/

l record for Board consideration if it must spend so much of its time and other resources en Motions to Compel discover / and subsequent attempts P

to obtain Applicant's compliance with said Crders regarding discover /.

l c. The credibility of Applicant's "show cause" response has been called into question by remarks attributed to UCLA's representative in a prestigious scientific journal. As Intervenor's views have not been solicited, Intervenor does not atterpt herein to respond to statements made by Applicant in the article in question, the affidavit filed relative

, to that article, nor Applicant's "show cause" response and its memorandum l in opposition to the Motion for Sanctions. However, the Board should not conclude that by its silence Intervenor takes no exception to the remarks and assertions made therein. Quite the contrary.

As a final note of clarification regarding C3G's request for sanctions, Intervenor wishes to make clear that by its specific suggestions as to sanctions it in no way intended to restrict Board's consideration of appropriate sanctions in this matter. Intervenor notes that the Atomic Energv Act, the IIRC regulations, and liRC practice all view failure to carr/ out discover / obligations and failure to obey Board Ctders relative to discover /

as extremely serious matters and contemplate sanctions of major ccmsequence; likewise as to untruthful statements submitted in NRC license proceedings.

h-Intervencr notes that sanctions of innediate ruling favorable to the agerieved party as to nosi of the contentions put at issue were imposed recently by a Licensing Board in a case involving failure to obey only one 3 card Crier cenpelling discovery and not involving allegations of untruthful statements nade under oath in interrogatory answers.

In that case the noving party had requested disnissal of the offending party fren the proceedings, and the Board chose instead an action nearly as severe. I*etrevolitan Erlisen Centany (Three Mile Island Nuclear Station Unit I) L3P-80-17,11 FRC 693 (1980).

In sun. Intervenor wishes to nake clear that it has requested tuo sanctionsagainstApplicant(ip.ediatefavorablerulingastocontentienII and payments of costs incurred ), views these requests as very modest given the circumstances and the seriousness of thediscovery problems and the prospective threat to 3 card authority, and in no way intended to linit Board's consideration of sanctions to those proposed by Intervenor in its l'ay 13 "otion, as far stronger sanctions may now be in order, given the events which '2ve transpired since Intervenor's initial Eotion.

Respectfully subnitted, 0

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I' ark Pollock Attorney for Intervenor CCEI':'"EZ TO 3 RIDGE THE GAP cet eervice list ,

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l 2] It shculd also be rnde clear that the estinate of $500 incurred costs was, as stated in ny declaration at the tine, an underestiration of actual costs. and that the continuation of these discovery problems in the two months since that Motion has necessitated considerable additional cost to Intervenor.

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