ML20032D860
| ML20032D860 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 11/12/1981 |
| From: | Mark Miller Atomic Safety and Licensing Board Panel |
| To: | DEKALB AREA ALLIANCE FOR RESPONSIBLE ENERGY |
| References | |
| ISSUANCES-OL, NUDOCS 8111180182 | |
| Download: ML20032D860 (6) | |
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'JiNPC UtlITED STATES OF AMERICA
!!UCLEAR REGULATORY COMMISSION
'81 NOV 13 P1:15 ATOMIC SAFETY AND ' ICENSIflG BOARD Before Administrative Judges:
ykgy'[d Marshall E. Miller, Chairman eat;cH Dr. Richard F.- Cole Dr. Dixon Callihan SERVED HOV131981
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In the Matter of
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Docket Nos. 50-454-OL 50-455-OL COMMONWEALTH EDIS0N COMPANY
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(Byron Station,
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November 12, 1981 Units 1 and 2)
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ORDER II JU ;
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Motion for Extension of Time c "^1;;;y;7mu 7
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a A motion for a 15 day extension of the November 1, 198 or the completion of pending discovery was filed by the Intervenor DAARE/ SAFE by mail on October 20, 1981. The metion ecited that DAAPE/ SAFE had terminated the services of its attorney over the summer but did not learn that he had failed to notify the Board until a conference call oa October 2.
It was contended that such late notice of the November 1 deadline made it virtually impossible to submit interrogatories which could be answered by that date.
Twenty-seven detailed interrogatories to the Applicant were filed by a paper dated October 20, 1981, in a mailing envelope postmarked M evised Schedule issued by the Board on September 9,1981, provided:
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" November 1,1981 - Last date for completion of discovery pending under Order entered August 18, 1981, including answers to interrogatories, pro-duction of documents, and depositions."
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October 27, 1981, received by the Board October 30, 1981 at 3:49 p.m.
In a letter from the Applicant's counsel to two representatives of DAARE/ SAFE dated October 28, 1981, it was stated that these interrogatories were received by them on that date, but that no representative of the Applicant was on the service list, and they only learned of the interrogatories from a telephone conversation. That letter fruther stated that it "is absolutely imperative that DAARE/ SAFE follow the NRC's rules of practice on filing and service of documents."
The App'icant filed its opposition to the motion for extension of time on October 27, 1981.
It asserted that Dr. von Zellen, a representative of DAARE/ SAFE, was informed by a September 21 letter (Exhibit A) of the cutoff date.S/ A letter dated September 4,1981 frcm counsel for the Applicant to Dr. Axel Meyer, another representative of this Intervenor, also discussed the necessity of timely discovery (Exhibit B).
The Staff also filed an answer in opposition to the motion for extension of time.
It pointed out that good cause for~ such a time extension had not been shown as required by 10 CFR s2.711(a), and that the request for extension had not been received b'y the Board well bef,re the specified time had expired.
The motion for an extension of time will be denied because it is untimely, and it is contrary to our Rules of Practice.
Under the provisions of 10 CFR 62.711(a), the time within which an act is required to be E/ etter dated September 21, 1981 from Steven C. Goldberg, counsel for the L
NRC Staff to DAARE, P. O. Box 261, DeKalb, Illinois 60015, addressed to Professor von Zellan. Transcript (Tr) of telephone conference held October 2, 1981, p. 9.
performed may be extended for " good cause." The Corrission has recently issued guidance to licensing boards covering the management of discovery.
In its " Statement of Policy on Conduct of Licensing Proceedings,"1/ licensing boards were advised to satisfy themselves that the " good cause" standard had actually been met before granting extensions of time. The Commission also stated that requests for time extensions "should be received by the Board well before the time specified expires."S/ Neither requirerrent has been satisfied by the instant motion.
This Intervenor has been previously advised by the Board that it is responsible for designating its representatives of record, and for fulfilling its obligations as a party.E! The Board has also stated that it does not intend to permit the established schedule to slip because of inattentiveness or dilatory conduct by anj party.5! The letters and telephone conferences described above show that DAARE/ SAFE has been repeatedly advised of the schedule requirements and of the various cutoff dates.
The termination of the services of its attorney not only does not excuse or furnish good cause for this Intervenor's inattentiveness, but rather imposes more affirmative duties upon its remaining representatives.
Tne motion itself is also untimely because the matter was not brought to the Board's attention promptly, or "well before the time specified" would 1/46 Fed. Reg. 28533; CLI-81-8, 13 NRC 452.'
SIId., o c d54-55.
E/ r. 11-12.
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T expire. Answers to interrogatories are due within 14 days after service, plus an additional five days for service by mail.
It would thus have been impossible to obtain answers and complete this discovery by the flovember 1 cutoff date. We note also that enforcing our rules of ractice will not unduly prejudice this Intervenor, because the schedule ; ovides for later discovery regarding the Staff's DES (due imminently), FES (4/5/82), SER (2/7/82), and SSER (3/30/82). The motion for a time extension will be denied.
II.
Motion for Sanctions The Applicant filed a motion on October 23, 1981 seeking the imposition of sanctions on the Intervenor DAARE/ SAFE for its failure to provide responsive answers to interrogatories. The Staff indicated on October 29 that it ' intended to take no position on that motion.
Ito answer has been received from this Intervenor.
On July 8,1981, the Applicant ser'/ed. written 'nterrogatories on DAARE/
SAFE inquiring into the factual bases for its contentions, any evidentiary support therefor, and the identit.y of its witnesses and the substance of their testimoi,y. The Board granted Applicant's motion to conpel discovery and by its Order of August 18, 1981, this Intervenor was ordered to file responsive answers forthwith.
In a telephone conference on October 2,1981, DAARE/ SAFE was directed to file responsive answers on or before October 13 (Tr. 18).
_ The only answers filed in this regard were contained in a letter received by the Applicant on October 13, 1981, which read as follows:
" RESPONSE TO COMMONWEALTH EDISON COMPANY'S FIRST ROUND OF INTERROGATORIES TO BE ANSWERED BY DAARE AND SAFE "DAARE-SAFE is in the process of developing a list of persons expected to provide testimony.
The list of possible witnesses includes, but is not limited to:
Mr. David Stahr - Illinois Public Action Council (Contention 1)
Dr. Richard Webb - Toledo, Ohio (Contention 4)
Dr. Earl Gulbransen - Pittsburgh, PA (Contention 6 & 7)
Dr. Karl Z. Morgan - Atlanta, GA (Contention 2 and 2a)
Mr. Robert Pollard - Union of Concerned Scientists (Contention 9c)
Ms. Marilyn Shineflug - Illinois Safe Energy Alliance (Contention 8)
Ms. Kay Quigg - Pollution & Environmental Problems (Contention 3)
Ms. Kay Drey - St. Louis, MO (Contention 9c)
Dr. Rosalie Bertell - Buffalo, New York (Contention 2 & 2a)
"DAARE-SAFE has not contacted these witnesses and has no knowledge of the specifics of their testimony or what documents they will rely upon, or even if they would agree to testify."
This filing does not even purport to be a responsive answer to the Applicant's interrogatories, and it cunnot be deemed an adequate compliance with the Board's Orders.
If it were not for the self-induced confusion resulting from this Intervenor's discharge of its attorney, it would probably be dismissed as a party.
However, the Board desires to give it one more opportunity to discharge its responsibilities as a party.
DAARE/
SAFE has already been directed to provide full and responsive answers to similar interrogatories filed by the Staff.1/ It is directed to file 1I0rder entered November 9, 1981.
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. responsive answers immediately to the instant interrogatories. Our previous admonition that a continued failure to comply with discovery orders can result in the imposition of sanctions, including dismissal, is reaffirmed.
The Applicant's motion for imposition of sanctions at this time is denied.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD Marshall E. Miller, Chairman ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 12th day of November, 1981.
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