ML20010J296
| ML20010J296 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 09/28/1981 |
| From: | Swartz L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8109300271 | |
| Download: ML20010J296 (6) | |
Text
,
b 9/28/8{ M -
UNITED STATES OF AMERICA I
Y7 NUCLEAR REGULATORY COMMISSION 7
/L.i I
,9.
SEP'3'9'igstm Q BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
"*" En C>
1 In the Matter of
)
4 PENHSYLVANIA POWER & LIGHT C0.
Docket Nos. 50-387 ALLEGHENY ELECTRIC COOPERATIVE, INC.
)
50-388
)
(Susquehanna Steam Electric Station.
)
Units 1 and 2)
)
HRC STAFF RESPONSE IN SUPPORT OF APPLICANTS' MOTION TO DISMISS MODIFIED CONTENTION 2 (CHLORINE) 1.
INTRODUCTION Un September 15, 1981, the Applicant's filed a " Renewed Motion to Dismiss Modified Contention 2 (Chlorine)" (Motion).
In that Motion, the Applicants move for dismissal of the portion of Contention 2 which deals with chlorine because of the default of intervenor Citizens Against Nuclear Dangers (CAND) with regard to the Licensing Board's Order requiring CAND to respond to Applicants' interrogatories on the contention.E The Staff I
supports the Applicants' Motion.
II.
DISCUSSION l
On August 31, 1981, the Licensing Board in this proceeding issued a
" Memorandum and Order on Pending Motions" in which it denied an earlier motion by the Applicants to dismiss the chlorine portion of Contention 2 j
If CAND is the sole sponsor of the chlorine portion of Contention 2.
f See "Special Prehearing Conference Order," LBP-79-6, 9 NRC 291, j
299-301 (1979).
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[ i but directed ' AtlD to respon $ to the Applicants' interrogatories "within a five day period of receipt of this order." Memorandum and Order at 2.
As the Applicants explain in their Motion, the time period for CAflD's responses to the interrogatories has elapsed and "CAf4D has neither complied with the Board's directive nor provided any explanation for its failure to do so."
Motion at 1.
The Commission's Rules of Practice set forth procedures for parties to a proceeding to follow in pursuing discovery.
10 C.F.R. 992.720, 2.740, 2.740a, 2.7400, 2.741, 2.742, and 2.744. Pretrial discovery is liberally granted to enable parties to ascertain the facts in complex litigation, refine the issues, and prepare adequately for a more expeditious hearing.
Pacific Gas and Electric Company (Stanislaus fluclear Projet Unit 1), LBP-78-20, 7 t4RC 1038,1040 (1978).
Discovery muj be compelled where the person against whom discovery is sought resists or ceclines to answer.
10 C.F.R. 9 2.740(f).
Moreover, a party may be sanctioned by the licensing board for failure to respond to proper discovery requests.
Section 2.707 of 10 C.F.R.
authorizes the presiding officer to impose such sanctions, including dismissal of the contentions of the non-complying party.
In the instant case, the only appropriate remedy is dismissal of l
CAtiD's contention relating to chlorine.
CAiiD has unfairly denied the l
Applicants an opportunity to learn the bases for its concerns in the chlorine portion of Contention 2.
Tt.e Applicants, and the Staff, are entitled to notice as to the bases for the intervenor's concerns so thdt they will know at least generally what they will have to defend against l
t l
or oppose. Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 338 (1980). The Applicants carry the burden of proof in Commission proceedings and, unless they can inquire into the positions of the intervenors, discharging that burden may be impossible. Northern States Power Co.
(Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298,1300 (1977).
"To permit a party to make skeletal contentions, keep the bases for them secret, tnen require its adversaries to meet any conceivable thrust at hearing would be patently unfair, and inconsistent with a sound record."
,I_d_. at 1301.U CAND is clearly in default with respect to the chlorine portion of Contention 2.
They have failed not only to respond to the Applicants' interrogatories which were filed on August 6,1981 but also to comply with the Board's August 31, 1981 Order directing such responses. Thus, a just remedy under 9 2.707 is required. Because CAND has improperly frustrated the Applicants' legitimate efforts to prepare for litigation on this issue, the chlorine portion of Contention 2'to which the interrogatories were addressed should be dismissed, y
Licensing boards in the past have dismissej intervenors frou various proceedings for failure to comply with dist.overy orders.
Northern States, supra; Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813 (1975); Public Service Electric and Gas Company (Atlantic Generating Station, Units 1 and 2), LBP-75-62, 2 NRC 702 (1975).
Indeed, the Licensing Board in this proceeding dismissed the Environmental Coalition on Nuclear Power (ECNP) as a party in the safety phase of the hearing for failure to respond to discovery.
" Memorandum and Order" dated May 20, 1981. The remedy sought in this instance, dismissal of a contention, is considerably less severe.
Moreover, the Staff agrees with the Applicants that merely preventing CMD from participating on this issue is not sufficient (Motion at 2, n.2).
If CAND were not allowed to participate but the chlorine portion of Cor.tentien 2 remained, the Staff and the Applicants would be required t') present testimony on the subject. The issue presented by that portion of Contention 2 is unsubstantiatedU and has not been shown to be a " serious safety, environmental or common defense and security matter" requiring consideration by the Board sua sponte pursuant to 10 CFR s 2.760a.
III. C0kLLUSION For the reasons stated above, the Staff supports the Applicants' Motion to dismiss the chlorine portion of Cortention 2.
CAND, the sole sponsor of the chlorine contention, is in default and the Board should impose appropriate sanctions under b 2.707.
In this instance, the only meaningful sanction is dismissal of Contention 2 as it relates to the chlorination required for the operation of the Susquehanna facility.
Respectfully submitted, l'Db'
[- bY b ((~Qh L~.;inda Low Swartz l
.ounsel for NRC Staff l
Dated at Bethesda, Maryland this 28th day of September, 1981 t
3]
As the Applicants have explained, CAND has been unable to substantiate its allegations by responding to discovery and will not present a direct case on this issue. Motion at 2.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY LICENSING BOARD In the Matter of PENNSYLVANIA POWER AND LIGHT CO.
)
Docket Nos. 50-387 ALLEGHEHY ELECTRIC COOPERATIVE, INC.
50-388 (Susquehanna Steam Electric Station,
)
Units 1 and 2)
)
CERTIFICATE OF 3ERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN SUPPORT OF APPLICANTS' MOTION TO DISMISS MODIFIED CONTENTION 2 (CHLORINE)" in the above-captioned proceeding 'as been served on the following by deposit in the United States n
mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 28th day of September,1981:
i James P. Gleason, Chairman Dr. Judith H. Johnsrud Administrative Judge Co-Director 513 Gilmoure Drive Environmental Coalition on Silver Spring, MD 20901 Nuclear Power 433 Orlando Avenue
- Mr. Glenn 0. Bright State College, PA 16801 Administrative Judge Atomic Safety and Licensing Board Mr. Thomas M. Gerusky, Director U.S. Nuclear Regulatory Commission Bureau of Radiation Protection Washington, DC 20555 Department of Environmental Resources Commonwealth of Pennsylvania Dr. Paul W. Purdom P.O. Box 2063 Administrative Judge Harrisburg, PA 17120 245 Gulph Hills Road Radnor, PA 19007 Ms. Colleen Marsh Box 538A, RD#4 Jay Silberg, Esq.
Mountain Top, PA 17120 Shaw, Pittman, Potts and Trowbridge 1800 M Street, N.W.
Mr. Thomas J. Halligan Washington, DC 20U36 Correspondent:
CAND P.O. Box 5 Bryan A. Snapp, Esq.
Scranton, PA 18501 Pennsylvania Power & Light Company Two North Hinth Street Allentown, PA 18101
- Richard S. Salzman, Esq., Chairman, Susquehanna Environmental Administrative Judge Advocates Atomic Safety and Licensing Appeal Board c/o Gerald Schultz, Esq.
U.S. Nuclear Regulatory Commission P.O. Box 1560 Washington, DC 20555 Wilkes-Barre, PA 18703
- Dr. John H. Buck, Administrative Judge Mr. Robert M. Gallo Atc.aic Safety and Licensing Appeal Board Resident Inspector U.S. Nuclear Regulatory Commission P.O. Box 52 Washington, DC 20555 Shickshinny, PA 18655
- Mr. Thomas S. Moore, Administrative Judge Robert W. Adler Atomic Safety and Licensing Appeal Board Dept. of Environmental Resources U.S. Nuclear Regulatory Commission 505 Executive House Washington, DC 20555 P.O. Box 2357 Harrisburg, PA 17120
- Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Mr. DeWitt C. Smith, Director Washington, DC 20555 Pennsylvania Emergency Management Agency
- Atomic Safety & Licensing Appeal Board Transportation and Safety Building Panel Harrisburg, PA 17120 U.S. Nuclear Regulatory Commission Washington, DC 20555
- Secretary U.S. Nuclear Regulatory Commission ATTN:
Chief, Docketing & Service Brancn Washingtor, DC 20555
. h N /1 b l h
if Lucinda Low Swartz g
Counsel for NRC Staff