ML20031C452
| ML20031C452 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 10/01/1981 |
| From: | Bischoff C BISCHOFF, C.A., JOINT APPLICANTS - PALO VERDE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8110070162 | |
| Download: ML20031C452 (10) | |
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION 2
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In the Matter of
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ARIZONA PUBLIC SERVICE
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Docket Nos. STN 50-528 COMPANY, et al.
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MOTION TO DISMISS INTERVENOR'S CONTENTION NO.
l Joint Applicants Arizona Public Service Company, Salt River Project Agricultural Improvement and Power Dis-trict, Southern California Edison Company, El Paso Electric Company, and Public Service Company of New Mexico (" Joint Applicants") hereby move the Atomic Safety and Licensing t
Board (" Board") for an order dismissing from this proceeding l
Intervenor Patricia Lee Hourihan's ("Intervenor") Contention I
No. 8.
The pertinent facts are as follows:
1.
Intervenor was admitted as a party to this proceeding by this Board's Memorandum and Order of April 16, 1
1981.
In its order the Board also approved the " Stipulation of Parties Regarding Contentions and Discovery," dated December 12, 1980 ( "Stipula, tion" ), and admitted as issues in controversy Intervenor's Contentions Nos. 1, 5, 6B, 7 and 8.
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2.
Contention No. 8 reads as follows:
"The base mats for Units 1 and 2 are not structurally able to support the systems and equipment inside containment, because some of the concrete slump tests performed by Engineering Testing Labs for Units 1 and 2 were falsified."
3.
Pursuant to the approved Stipulation and 10 CFR 5 2.740(b) of the Rules of Practice of the Commission, on May 22, 1981, Joint Applicants served on Intervenor
" Joint Applicants' First Set of Interrogatories and Requests for Production of Documents to Intervenor."
These inter-rogatories dealt with each of Intervenor's five contentions.
Intervenor's answers to Joint Applicants' interrogatories were due June 22, 1981.
4.
On June 26, 1981, Intervenor served her an-swers to Joint Applicants' first set of interrogatories.
In her answers, Intervenor objected to Interrogatories Nos. 63, 64 and 65, each of which dealt with Contention No. 8,
. on the ground that the mnterrog-t atory calls for information which is ir-i relevant, immaterial, and not designed to lead to the discovery of admissible evidence."
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On July 6,
1981, Joint Applicants filed a l
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motion to compel Intervenor to answer Interrogatories Nos.
63, 64 and 65.
The NRC Staff filed a reply in support of l
the motion on July 21, 1981.
Intervenor did not file an answer to Joint Applicants' motion.
6.
By notice filed July 20, 1981, counsel for Intervenor withdrew from the proceeding.
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7.
By its Memorandum and Order dated August 3, 1981, this Board ordered Intervenor to serve her response, if any, to the motion to compel, including any motion for protective order, not later than seven (7) days from the date of such Memorandum and Order.
Intervenor filed neither an answer to the motion nor any motion for a protective order.
8.
By its Memorandum and Order dated August 31, 1981, this Board ordered that "not later than September 15,
- 1981, Intervenor Patricia Lee Hourihan serve her written answers, under oath or af-firmation, to Joint Applicants' Inter-rogatories 63, 64 and 65."
As of the date of filing this motion to dismiss, Joint Applicants have not received Intervenor's written answers to Interrogatories Nos.
63, 64 and 65, or, for that l
matter, any communication from Intervenor respecting such interrogatories.
Intervenor's failure to comply with this l
Board's Memorandum and Order of August 31, 1981, gives rise to the instant motion to dismiss.
The Board's authority to grant the relief requested by Joint Applicants is set forth at 10 CFR S 2.707, which l
provides in pertinent part:
"On failure of a party to.
. com-ply with any discovery order entered by the presiding officer pursuant to 5 2.740,
. the presiding officer may make such orders in regard to the failure as are just, in61uding, among others, the following:
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(a)
Without further notice, find the facts as to the matters regarding which the order was made in accordance with the claim of the party obtaining the order, and enter such order as may be appropriate; or (b)
Proceed without further notice to take proof on the issues specified."
(Footnote omitted.)
Licensing boards have relied en the authority con-ferred by 10 CFR 5 2.707 not only to dismiss contentions of an intervenor who failed to comply with a board order to respond to discovery, see Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), LBP-80-17, 11 NRC 893 (1980), but also to dismiss intervenors who failed to comply with such orders, see grthern States Power Company (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298 (1977);
Offshore Power Systems (Manufacturing License for Floating Nuclear Power. Plants), LBP-75-67, NRCI-75/11 813 (1975);
Public Service Electric and Gas Company (Atlantic Nuclear Generating Station, Units 1 and 2), LBP-75-62, NRCI-75/10 702 (1975).
In Northern States Power Company, the licansing board dismissed several intervenors who failed to comply l
with the board's order to respond to the applicant's and NRC Staff's interrogatories.
In the opinion of the board, dis-missal was mandated in part in the interest of fairness. *
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I The board stated:
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"[T]he interrogatories and document requests were attempts by the Applicants and tire Staff to learn about the bases for e.ich ir.tervenor 's own affirmative contenta.ons.
The Applicants in partic-ular carry an unrelieved burden of proof in Commission proceedings.
Unless they can effectively inquire into the posi-tions of the intervenors, discharging that burden may be impossible.
To per-mit a party to make skeletal contentions, keep the baseo for them secret, then re-quire its adversaries to meet any con-ceivable thrust at hearing would be pa-tently unfair, and inconsistent with a sound record."
5 NRC at 1300-01 ( foot-note omitted).
Fairness to the applicant was also cited by the licensinc board in Metropolitan Edison Company in dismissing numerous contentions of an intervenor.
"[The licensee] has the right to know the nature of the charges as to which its interests will be adjudicated.
Even if there were no fault on the part of ECNP in failing to disclose information on its contentions, we could not hold licensee to a high standard of proof in defending against ECNP's allegations.
This is true both as a matter of due pro-cess and as a practical matter.
With ECNP's failure to provide any informa-
, tion whatsoever in response to reasonable interrogatories, the board would not know how to force licensee to defend itself even if we were inclined to do so."
11 NRC at 897 (emphasis in Original).
I Fairness to Joint Applicants is also the reason why Intervenor's Contention No. 8 should be dismissed.
The contention is groundless and Intervenor's recalcitrance has left Joint Applicants without any information concerning the particular details of the contention.
Intervenor's fail- -
ure to clarify her contention by answering Joint Applicants' interrogatories makes it impossible for Joint Applicants to prepare their case in opposition to the contention.
In addition to fairness to the applicant, the li-censing board in Metropolitan Edison Company also considered fairness to the intervenor and the public interest in a com-plete evidentiary record in reaching a decision on the licensee's motion for sanctions.
With respect to fairness to the intervenor, the board stated that if the intervenor's default was the result of harassment, denial of information, or other unfair circumstances, it would be the board's responsibility to abate the unfairness.
In the instant case, there is nothing in the record which would suggest that Intervenor's default can be laid to unfair circum-stances.
Rather, the default is simply one more example of Intervenor's refusal to meet her responsibilities as a party.
In this connection, Joint Applicants would remind the Board that Intervenor has yet to serve answers to the Staff's and Joint Applicants' respective second set of in-terrogatories, or to ' respond to Joint Applicants' Request for Admissions.
See "NRC Staff Motion for Order Compelling Patricia Lee Hourihan to Respond to Staff's Second Set of Interrogatories and Request for Documents," dated August 27, 1
1981;
" Joint Applicants' Motion to Compel Intervenor to 1
Answer Second Set of Interrogatories," dated August 28, 1981; " Joint Applicants' Motion to Designate Time for Inter-
.o venor to Answer Request for Admissions," dated August 28, 1981.
Intervenor has repeatedly ignored the basic rule of adjudicatory proceedings that the right to participate as a party carries with it the duty to answer questions of other parties to the proceeding.
See offshore Power Systems, s}1pra, NRCI-75/11 at 8.16-17.
With respect to the third factor considered by the board in Metropolitan Edison company -- the interest in ti complete evidentiary record -- Joint Applicants would simply note that Contention No. 8 is an unfounded, skeletal conten-tion, barren of specifics respecting what individuals falsi-fied the tests, how the tests were falsified, what informa-tion was falsified, etc.
If this contention were to remain an issue in this proceeding, Joint Applicants would them-selves be forced to postulate the grounds for the contention and then present their case against it.
Such approach would be ridiculous and totally inconsistent with the public inter-f est in a sound record.
In summary, based upon considerations of fairness to Joint Applicants, fairness to Intervenor, and the public l
interest in a complete and sound evidentiary record,'Conten-tion No. 8 should be dismissed.
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WHEREFORE, Joint Applicants move this Board for an immediate order dismissing Contention No. 8 f m this. pro-ceeding.
RESPECTFULLY SUBMITTED, By Arthur C. fiefir Charles A. Bischo 3100 Valley Bank C icr Phoenix, Arizona 85073 4
Attorneys for Joint Applicants Dated October 1, 1981 i
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l' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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ARIZONA PUBLIC SERVICE
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Docket Nos. STN 50-528 COMPANY, et al.
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STN 50-529
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STN 50-530 (Palo Verde Nuclear Generating
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Station, Units 1, 2 and 3)
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CERTIFICATE OF SERVICE I hereby certify that copies of "Moti$n to Disudss i
Intervenor's Contention No.
8" have been_ served upon the following listed persons by deposit in the United States mail, e
properly addressed and with postage prepaid, or, as indicated by an asterisk, by Federal Express, this 1st day of October, 1981.
j Docketing and Service Section i
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Chairman Maricopa County Board of Supervisors 111 South Third Avenue Phoenix, Arizona 85004
- Dr.
Richard F. Cole Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
Ms. Patricia Lee Hourihan 6413 S.
26th Street Phoenix, Arizona 85040
- Robert M.
Lazo, Esq.
Chairman, Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Dr. Dixon Callahan Union Carbide Corporation P.O. Box Y Oak Ridge, Tennessee 37830 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Henry J. McGurren, Esq.
Office of the Executive Legal Director U.
S. Nuclear Regulatory Commission Washington, D.C.
20555 Rand L. Greenfield Ascistant Attorney General P.O. Drawer 1508 Sa:2ta Fe, New Mexico 87504 By Charles A. Biscpeff l
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