ML20034H845
| ML20034H845 | |
| Person / Time | |
|---|---|
| Site: | Millstone  |
| Issue date: | 03/15/1993 |
| From: | Kline J, Smith I Atomic Safety and Licensing Board Panel |
| To: | CO-OPERATIVE CITIZEN'S MONITORING NETWORK, INC. (CCMN |
| References | |
| CON-#193-13731 92-665-02-OLA, 92-665-2-OLA, OLA, NUDOCS 9303220147 | |
| Download: ML20034H845 (7) | |
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UNITED STATES OF AMERICA'-
93 WR 16 P1J11 NUCLEAR REGULATORY COMMISSION
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' ATOMIC SAFETY AND LICENSING BOARD LUC Fi' M - ' MF
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Before' Administrative Judges:
Ivan W.
Smith, Chairman Dr. Charles N..Kelber W l 6 }993
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Dr. Jerry R. Kline-8 In.the Matter.of.
NORTHEAST NUCLEAR ENERGY Docket Nos. 50-336-OLA COMPANY.
FOL No. DPR-65 (ASLBP No. 92-665-02-OLA).
.(Millstone Nuclear Power Station, Unit No. 2)
(Spent Fuel Pool Design)
March 15, 1993 MEMORANDUM AND ORDER (Compelling CCMN!t.o Respond to Discovery Requests) i Synopsis The NRC Staff and Northeast Nuclear ~ Energy Company (NNECO) each. properly served interrogatories and requests
.for.the production of documents upon the intervenor,
' j Cooperative Citizens Monitoring Network ('CCMN).
CCMN purported to respond by providing certain documents.
The
-response =is inadequate.
The Board grants the separate w
imotions of the NRC Staff and NNECO to compel CCMN o respond.
't to~their respective discovery requests.
Backaround' f
i
-During.the prehearing' conference of November 5, 1992.
-the Board explained to CCMN's representative, Ms.. Mary-Ellen-a
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that she'will be required, if requested,.to answer
- Marucci, interrogatories seeking.CCMN's views and positions on the:
issues.in-this proceeding; that the utility needed this l
information to properly address those positions.
Tr. 85.
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In addition, the Board Chairman provided Ms. Marucci a copy-j, of the NRC rules of practice with the repeated warning'that she needed to understand her responsibilities under the
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rules.
E.g.,
Tr. 78-79, 85.
}
Following that prehearing conference, the Board, on f
- November 24, 1992, issued its order authorizing discovery on j
i CCMN's Contention No.
1.
The NRC Staff, on December 9, 1992, and NNECO, on December 18, 1992, submitted their respective discovery requests in the form of interrogatories and requests for the production of. documents to CCMN'as j
authorized by 10-C.F.R. SS 2.740 and 2.741.
l Both discovery requests attempted to learn about CCMN's i
proposed witnessen 2nd the substantive nature of CCMN's views of the issues underlying Contention 1.
Except for.
j
.those common aspects, there was little similarity between the Staff and NNECO discovery requests -- either in organization or the nature of the questions asked.
On February'18, 1993 the Board received an unsigned i
I pleading dated February 11, 1993 from CCMN purporting to be a single response to both the NRC and NNECO discovery j
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- 3 l'
-3 requests.2 CCMN did not object to,any of the discovery requests and did not seek protection from the Board with respect to the need to respond.
See 10 CFR SS 2.740(c) and (f). The NRC Staff and NNECO filed motions to compel response from CCMN.2 CCMN did not answer the motions.
Discussion CCMN responded that it intended to call its expert, Dr.
Michio Kaku, and CCMN's coordinator, Mary Ellen Marucci, as witnesses, thus answering a small part of the Staff and NNECO's interrogatories.
The balance of CCMN's response consisted of 16 documents, 15 of which were generated er provided by the NRC, NNECO, or their respective counsel.
CCMN does not match the discovery requests with the proffered documents.
Indeed, because of the dissimilarity the Staff and NNECO's discovery requests it would be impossible for a single response to. match both requests.
Moreover we have examined CCMN's documents and it-is not possible to even infer CCMN's position on the issues in controversy from them.
The response falls so short of Once again CCMN's response was not accompanied by a 8
certificate of service and, once again, it was late.
We shall address those factors in the context of any need to impose sanctions upon CCMN.
See p.
5, infra.
SThe NRC Staff filed its motion to compel responses on February 19, 1992 under the assumption that CCMN had filed' no response whatever.
Later, when CCMN's February 11 filing-came to the Staff's attention, the Staff, on February 24, supplemented the February 19 motion.
NNECO filed its motion to compel on February 26, 1992.
- ~
c;
-4 making ~ sense that we are lead to conclude that it was'not a good faith. effort.
f Order 1.
The Board finds that CCMN has failed to respond to.
appropriate discovery requests by the NRC Staff and NNECO..
2.
CCMN is directed to-respond to the NRC Staff's December 9, 1992 Interrogatories and Request for Production l
of Documents and Northeast Nuclear Energy Company's December 18, 1992 Interrogatories and Requests for Production of Documents, no later than 10 days following the date of the service of this order or to otherwise respond in accordance with the provisions of 10 C.F.R. 52.740(f).
3.
CCMN is admonished in-the following respects:
A.
If CCMN seeks a protective order from l
discovery requests pursuant to 10 C.F.R.
SS l
2.740(c) and (f), it must state good cause for seeking such protection and must state good cause for seeking it late.
B.
CCMN must answer each interrogatory and request for the production of documents unless protected from answering.
A truthful statement that CCMN does not know the answer to an interrogatory or possess a requested document is an appropriate response.
C.
If CCMN fails to comply with the terms of l
this order, the Board'will entertain motions for E
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. appropriate sanctions.
One appropriate sanction might be to find the facts' pertaining to'the-discovery requests in favor of the NRC Staff and NNECO without further notice to CCMN (i.e. dismiss Contention No. 1).
See 10 C.F.R. 52.707(a).3 l
It is so ORDERED.
Judge Kelber agrees with this action, but was not available to join in'the order.
cm / /s -
[yerry R. f,line mDMINISTRATIVE JUDGE h
Mji) f-v-Ivah W.
Smith, Chairman ADMINISTRATIVE JUDGE I
Bethesda, Maryland March 11, 1993 By letter of March 10, 1993 to the Board, counsel for 3
NNECO suggests the possibility of proceeding directly to the summary disposition phase of the proceeding.
Today's order might bear upon that proposal.
Licensee's proposal would be consistent with the a remedy for discovery default set out in 10 C.F.R. 52.,707(b).
If CCMN remains in default of its discovery obligations, an appropriate sanction may be'to bar any evidentiary response by CCMN to a summary disposition motion.
Following the service of this order, the Board will convene a prehearing conference call to explore means of promptly resolving any genuine issues remaining in dispute.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of NORTHEAST NUCLEAR ENERGY COMPANY Docket No.(s) 50-336-OLA (Millstone Nuclear Power Station, Unit No. 2) i CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB M & 0 (COMPELLING CCHN...)
have been served upon the following persons by U.S. mail, first class,. except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Office of Comission Appellate Administrative Judge Adjudication Ivan W. Smith, Chairman U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Eioard Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Administrative Judge Administrative Judge Charles N. Kelber Jerry R. Kline-Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC' 20555 John T. Hull, Esq.
Richard M. Kacich Ann P. Hodgdon, Esq.
Director, Nuclear Licensing Office of the General Counsel Northeast Utilities U.S. Nuclear Regulatory Commission P. 0.. Box 270 Washington, DC 20555 Hartford, CT 06101 Patricia R. Nowicki Mitzi S. Bowman Associate Director Coordinator EARTHVISION, INC.
DON'T WASTE CONNECTICUT 42 Highland Drive 97 Longhill Terrace South Windsor, CT 06074 New Haven, CT 06515 i
h+.z Docket No.(s)50-336-OLA.
LB M & 0'(COMPELLING CCMN...)
Nicholas S. Reynolds, Esq.
John A. MacEvoy,-Esq.
Mary Ellen
'Marucci 1
Winston & Strawn 104 Brownell Street 1400 L Street, N.W.
New Haven, CT- 06511 Washington, DC 20005 Michael J. Pray, AIA Fra$5iX.Lo_Sacco 87 Blinman Street 4 Glover Place,-Box 1125 New London, CT 06320 Middletown, CT 06457 Joseph M. Sullivan Rosemary Griffiths 17 Laurel Street 39 South Street Waterford, CT 06385 Niantic, CT 06357 Professor Michio Kaku Department of Physics.
City College of New York 138th Street and Covent-Avenue New York, NY 10031 Dated at Rockville, Md. this 16 day of March 1993 h
Office of the Secretary of the Commission.