ML20053D247

Motion to Impose Sanctions for Default & to Strike Contentions.Westchester Peoples Action Coalition,Rockland Citizens for Safe Energy & West Branch Conservation Assoc Failure to Respond Warrants Dismissal.W/Certificate of Svc

ML20053D247
Person / Time
Site:	Indian Point
Issue date:	05/28/1982
From:	Brandenburg B, Levin J CONSOLIDATED EDISON CO. OF NEW YORK, INC., MORGAN ASSOCIATES, POWER AUTHORITY OF THE STATE OF NEW YORK (NEW YORK
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8206040228
Download: ML20053D247 (13)

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9 m :TEL UNITED STATES OF AMERICA "'C NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD az em -1 R0 73 Before Administrative Judges: ,.

Louis J. Carter, Chairman 4 Frederick J, Shon Dr. Oscar H. Paris

)

In the Matter of )

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CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. ) Docket Nos.

(Indian Point, Unit No. 2) ) 50-247 SP

) 50-286 SP POWER AUTHORITY OF THE STATE OF NEW YORK )

(Indian Point, Unit No. 3) ) May 28, 1982

)

LICENSEES' MOTION TO IMPOSE SANCTIONS FOR DEFAULT AND TO STRIKE CONTENTIONS The Consolidated Edison Company of New York, Inc.,

and the Power Authority of the State of New York, licen-sees of Indian Point Units 2 and 3, respectively, hereby move the Atomic Safety and Licensing Board (Board) to issue an order to compel Westchester People's Action Coalition, Inc. (WESPAC), Rockland Citizens for Safe Energy (RCSE), and West Branch Conservation Association (WBCA) to answer the licensees' emergency planning inter-rogatories within five days of the issuance of such

. order. Additionally, the licensees request the Board to strike contentions 5 and 6 submitted by WESPAC, 8206040228 820528 S PDR ADOCK 05000247 i O PDR jfl

i contentions (1), (2), and (4) submitted by RCSE, and contentions submitted by WBCA on the Nuclear Regulatory Commission's (Commission's) questions 1, 3, 4, and 5,1 on the ground that the inte rvenors 2 have again failed to provide factual bases for these contentions.3 I. INTERVENORS ARE IN DEFAULT FOR FAILURE TO COMPLY WITH THE BOARD'S ORDER AND THE COMMISSION'S REGULATIONS, During the second special prehearing conference, the Board stressed the importance of using discovery to identify the crucial issues in this case.4 Transcript of Proceedings at 605 (Apr. 13, 1982). After the conference, the Board issued an order which contained an initial dis-

1. WBCA submitted emergency planning contentions under Commission questions 1 and 5 dealing with risk. The Board, in formulating its own contentions, realigned these contentions under Commission questions 3 and 4. See Memorandum and Order (Formulating Contentions, Assigning Intervenors, and Setting Schedule) at 11 (Apr. 23, 1982)

(WBCA contentions under Commission questions 1 and 5 used as basis for Board's contention 3.9).

2. The term "intervenors" as used herein refers only to WESPAC, RCSE and WBCA.

3. The licensees recognize'that an order striking the stated contentions would alleviate the intervenors' l

obligation to respond to interrogatories that address

! these contentions exclusively.

4. Answers to interrogatories are particularly important in this proceeding because the Board has found that discovery would serve to supply the specific factual bases for contentions which were notably absent from any of the intervenors' filings. See Trar. script of Proceed-ings at 605 (Apr. 13, 1982).

3-covery schedule. The Board stated that "[ilnterrogatories shall be answered promptly and fully, answers being com-plete yet succinct." Memorandum and Order (Formulating Contentions, Assigning Intervenors, and Setting Schedule) at 21 (Apr. 23, 1982).1 WESPAC, RCSE and WBCA have not even attempted to com-ply with this order. Instead, they offer lame excuses which " amount [] to no more than blatant refusals to 4

answer."2 In re Pennsylvania Power & Light Co.

(Susquehanna Steam Electric Station, Units 1 and 2), 11 N.R.C. 559, 564 (1980). Yet, these three intervenors have

1. The Board's order reinforced the Commission's rule that "[elach interrogatory shall be answered separ-ately and fully in writing under oath or af firmation."

10 C.F.R. S 2.740b(b) (1981). This regulation evinces the intervenors' procedural duty to respond to discovery requests in a diligent manner.

2. WESPAC claims "the utilities (sic] interroga-tories to be generally oppressive," Westchester Peoples

[ sic] Action Coalition (WESPAC) answers [ sic] to Interrogatories from NRC Staff at 1 n.* (May 18, 1982). A claim of burdensomeness is not a valid objection to-a discovery request. In re Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), 1 N.R.C. 579, 584 (1975).

Both RCSE and WBCA claim that they were " hampered" by not having received the licensees' answers to interroga-tories. RCSE's Preliminary Response to Interrogatories at 1 (May 18, 1982); West Branch Conservation Associations

[ sic] Response to Interrogatories, List of Witnesses and Exhibits A-D at 1 (May 15, 1982).

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filed interrogatories with the licensees to which the licensees have responded with painstaking particularity.1 WESPAC, RCSE and WBCA seem to be unaware that their r igh t to make inquiries of the licensees is "on a 'two-way street.' A party may nct insist upon his right to ask questions of other parties, while at the same time dis-claiming any obligation to respond to questions from those other parties." In re Offshore Power Systems (Manufactur-ing License for Floating Nuclear Power Plants), 2 N.R.C.

813, 817 (1975) (emphasis in original) . The named inter-venors' behavior fully warrants, "on the basis of rules, precedents, and practice, [their] dismissal."2 In re

1. WESPAC has propounded in excess of 100 interroga-tories and document requests, including subparts, to each licensee. See WESPAC's Interrogatories for Consolidated Edison (May 3, 1982); WESPAC's Interrogatories for Power Authority, State of New York (May 3, 1982).

Like WESPAC, RCSE has asked that the licensees answer the interrogatories which it has prof fered. See Interrog-atories of Rockland Citizens for Safe Energy (May 3, 1982). WBCA has filed three sets of interrogatories di-rected to the licensees. West Branch Conservation Associ-ation Interrogatory to the Licensees (May 23, 1982); West l Branch Conservation Associations [ sic] Request to NRC Staff to Expedite Replies and Second Set of Interroga-tories to Staff, Licensees and State of N.Y. (May 15, 1982); Interrogatory to the Licensees from West Branch Conservation Association (Apr. 29, 1982).

2. Dismissal is appropriate at this stage of the proceeding. However, the licensees recommend, at a minimum, -that the Board compel WESPAC, RCSE and WBCA to respond to the licensees' interrogatories within five days of the issuance of such an order. Failure of the inter-

i 5-Pennsylvania Power & Light Co., 11 N.R.C. at 565; see ]gt re Public Service Electric & Gas Co. (Atlantic Nuclear Generating Station, Units 1 and 2), 2 N.R.C. 702, 706 1975) (10 C.F.R. S 2.7071 " empowers the Board to dismiss a recalcitrant party for refusing to comply with a direct order of the Board"); accord, In re Northern States Power Co. (Tyrone Energy Park, Unit 1), 5 N.R.C. at 1298, 1301 (1977); In re Offshore Power Systems, 2 N.R.C. at 817.

WESPAC, RCSE and WBCA either seek to thwart, or are oblivious to, the licensees' need to prepare their case.

[T]he purpose of discovery is to enable each party prior to hearing to become aware of the positions of each adversary party on the various_ issues in controversy, and the infor-mation available to adversary parties to_sup-port those positions.

In re Pennsylvania Power r Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), 10 N.R.C. 597, 599 (1979), later opinion, 11 N.R.C. 559 (1980) (emphasis in venors to respond to this order will result in a motion from the licensees to Cismiss them from participating in this proceeding.

1. The Commission's regulation provides, in pertinent part:

On failure of a party to . . . comply with any prehearing order pursuant to S 2.751a

. . .(,) the presiding officer may make such t

orders in regard to the failure as are just 10 C.F.R. 5 2.707 (footnote omitted).

orig inal) . Intervenors may not " improperly frustrat[e]

their adversaries' legitimate ef forts to prepare for the cross-examination" with impunity. In re Northern States Power Co., 5 N.R.C. at 1301 & n.3. The Board should not tolerate such behavior, but should compel YESPAC, RCSE and WBCA to answer the licensees' interrogatories.

II. INTERVENORS HAVE AGAIN FAILED TO PROVIDE FACTUAL BASES FOR THEIR CONTENTIONS At the second special prehearing conference, the Board stated that discovery would reveal to the licensees and to the Commission Staff the factual bases for the intervenors' contentions. Transcript of Proceedings at 605 (Apr. 13, 1982). Yet, discovery is now in progress and WESPAC, RCSE and WBCA have again f ailed to disclose-the bases for several of their emergency planning con-tentions. Accordingly, the Board should strike these contentions from consideration in this proceeding.

The licensees asked WESPAC, RCSE and WBCA to specify the grounds for certain contentions concerning the Commis-sion's third and fourth questions. Interrogatory No. 182, Licensees' Interrogatories and Document Request Under Com-mission Questions 3 and 4, at 53-54 (May 3, 1982). By failing to answer,1 the intervenors have contravened the

1. See Westchester Peoples [ sic] Action Coalition L

.q.

Commission's mandate that the bases for each contention be

" set forth with reasonable specificity," 10 C.F.R.

S 2.714(b) (1981); accord, BPI v. AEC, 502 F.2d 424, 428-29 (D.C.Cir. 1974), have deprived the licensees of their right to notice of matters against which the licensees must defend themselves, see In re Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3),

8 A.E.C. 13, 20 (1974), and have proved what the licensees have maintained all along -- WESPAC, RCSE and WBCA have filed emergenci planning contentions for which they have no bases.1 WESPAC deigns' to excuse itself from answering the licensees' interrogatories by asserting that it does not have the information to do so. Westchester Peoples (sic) i (WESPAC) answers [ sic] to Interrogatories from NRC Staff at 1 n.* (May 18, 1982); RCSE's Preliminary Response to Interrogatories.at 1 (May 18, 1982); West Branch Conser-vation Associations [ sic] Response to Interrogatories, List of Witnesses and Exhibits A-D at 1 (May 15, 1982).

1. See Con Edison's Reply Memorandum Respecting Contentions Propoced by Prospective Intervenors at 21-24, 26-30 (Feb. 11, 1982); Authority's Reply to Responses to Objections to Contentions of Potential Intervenors at 19-22, 27-32 (Feb. 11, 1982); Con Edison's Memorandum Respecting Contentions Proposed by Prospective Intervenors at 32-36, 37, 46-48.(Dec. 31, 1981); Power Authority's Objections and' Answers to Contentions of Potential Inter-venors at 13-14, 47-49, 56-59 (Dec. 31, 1981); see also Licensees' Petition for Directed Certification Pursuant to 10 CF R S 2. 718 ( i) and for Waiver of 10 CFR S 9.103, at 2, 6, 7, 11-12 s n.* (May 10, 1982).

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Action Coalition (WESPAC) answers [ sic] to Interrogatories from NRC Staff at 1 n.* (May 18, 1982). Similarly, RCSE and WBCA argue that they cannot specify reasons for their claims unless the licensees provide these reasons, see

. RCSE's Preliminary Response to Interrogatories at 1 (May 18, 1982); West Branch Conservation Associations

[ sic] Response to Interrogatories, List of Witnesses and Exhibits A-D at 1 (May 15, 1982). The intervenors await "information [from the licensees) crucial to development of [ the ir] case." RCSE's Preliminary Response to Interro-gatories at 1. NESPAC, RCSE and WBCA have missed the point. Before they can " develop [] [their] case," they must reveal their bases.

Where, as here, interrogatories . . . seek []

to uncover the basis for and rationale of a contention, a party must delineate the infor-mation, if any, currently in its possession (and the source of that information where applicable) on the particular subject.- Pre-sumably, it must have relied on information of some sort to formulate a contention; such information must be revealed. . . . [W]e

stress again that a party must, in response to discovery requests, identify the in'orma-l tion, if any, which it possesses and on which it is basing its contentions.

l In re Houston Lighting & Power Co. (South Texas Project, 7

Units 1 and 2), 11 N.R.C. 477, 479 (1980) (emphasis added).

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2 r Because WESPAC, RCSE and WBCA have not set forth the bases of the following emergency planning contentions, the Board should strike WESPAC's contentions 5 and 6; RCSE's contentions (1), (2), and (4); and the contentions sub-mitted by WBCA on Commission questions 1, 3, 4, and 5, from consideration in this 7roceeding. To allow WESPAC, RCSE a".d WBCA to make skeletal contentions, keep the bases for them secret, then require [the licensees]

to meet any conceivable thrust at [the] hear-ing would be patently unfair, and inconsis-tent with a sound record.

In re Northern States Power Co., 5 N.R.C. at 1301.

III. RELIEF REQUESTED Based upon the def ault of the named intervenors to respond to interrogatories, and their refusal to provide bases for the stated contentions, the licensees request

. that the Board issue an order:

, (1) striking the designated emergency planning con-tentions of WESPAC, RCSE and WBCA; (2) compelling WESPAC, RCSE and WBCA to respond to i the licensees' interrogatories within five days of the issuance of such order, to the extent that contentions remain to which interrogatories relate;

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(3) requiring all responses to this motion to be-filed by Friday, June 4, 1982; and g

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(4) imposing any other sanctions which the Board deems reasonable and just.

Res ectfully submitted,

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0 unK JA4 I - A Br e h t' L . 'B r'ah'd e nou rg = gharlesMo'rgans,Ar(

Paul F. Colarutti CONSOLIDATED EDISON C ANY Joh4ph J. Levin, Jr.

OF NEW YORK, INC.

Licensee of Indian Point MORGAN ASSOCIATES, CHARTERED 1

Unit 2 1899 L Street, N.W.

! 4 Irving Place Washington, D.C. 20036 New York, New York 10003 (202) 466-7000 (212)'460-4600

_ Thomas R. Frey General Counsel Charles M. Pratt Assistant General Counsel POWER AUTHORITY OF THE STATE OF NEW YORK Licensee of Indian Point Unit 3 10 Columbus Circle New York, New York 10019 -

(212) 397-6200 Bernard D. Fischman Michael Curley Richard F. Czaja j David H. Pikus l SHEA & GOULD l 330 Madison Avenue New York, New York 10017 (212) 370-8000 l

, Dated: May 28, 1982 l

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UNITED STATES OF AMERICA NUCLEAR REGULATORY-COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Louis J. Carter, Chairman Frederick J. Shon Dr. Oscar H. Paris

)

In the Matter of )

)

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. ) Docke t Nos .

(Indian Point, Unit No. 2) ) 50-247 SP

) 50-286 SP POWER AUTHORITY OF THE STATE OF NEW YORK )

(Indian Point, Unit No. 3) )

)

CERTIFICATE OF SERVICE I hereby certify that on the 28th day of May, 1982, I caused a copy of the Licensees' Motion to Impose Sanctions for Default and to Strike Contentions to be served by Express Mail, postage prepaid on:

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Louis J. Carter, Esq., Chairman Charles M. Pratt, Esq.

Administrative Judge Thomas R. Frey, Esq.

Atomic Safety and Licensing Board Power Authority of the 7300 City Line Avenue State of New York Philadelphia, Pet.nsylvania 19151 10 Columbus Circle New York, New York 10019 Mr. Frederick J. Shon Administrative Judge Janice Moore, Esq.

Atomic Safety and Licensing Board Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the Executive Washington, D.C. 20555 Legal Director U.S. Nuclear Regulatory Commission Dr. Oscar H. Paris Washing ton , D.C. 20555 Administrative Judge Atomic Safety and Licensing Board Brent L. Brandenburg, Esq.

U.S. Nuclear Regulatory Commission Assistant General Counsel Washington, D.C. 20555 Consolidated Edison Company of New' York, Inc.

Docketing and Service Branch 4 Irving Place Office of the Secretary New York, New York 10003 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ellyn R. We is s , Esq.

William S. Jordan, III, Esq.

Joan Holt, Project Director Harmon and Weiss Indian Point Project 1725 I Street, N.W., Suite 506 New York Public Interest Research Washington, D.C. 20006 Group 9 Murray Street Charles A. Scheiner, Co-Chairperson New York, New York 10007 Westchester People's Action Coalition, Inc.

John Gilroy P.O. Box 4 88 Westchester Coordinator White Plains, New York 10602 Indian Point Project New York Public Interest Research Alan La tman , Esq.

Group 44 Sunset Drive 240 Central Avenue Croton-On-Hudson, New York 10520 White Plains, New York 10606 Ezra I. Bialik, Esq.

Jeffrey M. Blum, Esq. Steve Leipzig, Esq.

New York University Law School Environmental Protection Bureau 4 23 Vanderbilt Hall New York State Attorney 40 Washington Square South General's Office New York, New York 10012 Two World Trade Center New York, New York 10047 Charles J. Maikish, Esq.

Litigation Division Alfred B. Del Bello The Port Authority of New York Westchester County Executive and New Jersey Westchester County o

One W'rld Trade Center 148 Martine Avenue New York, New York 10048 White Plains, New York 10601 Andrew S. Roffe, Esq.

New York State Assembly Albany, New York 12248

Marc L. Parris, Esq. Stanley B. Klimberg, Esq.

Eric Thorsen, Esq. General Counsel County Attorney New York State Energy Of fice County of Rockland 2 Rockefeller State Plaza 11 New Hempstead Road Albany, New York 12223 New City, New York 10956 Atomic Safety and Licensing Pat Posner, Spokesperson Board Panel Parents Concerned About Indian U.S. Nuclear Regulatory Commission Point Washington, D.C. 20555 P.O. Box 125 Croton-on-Hudson, New York 10520 Atomic Safety and Licensing Appeal Board Panel Renee Schwartz , Esq. U.S. Nuclear Regulatory Commission Paul Chessin, Esq. Washington, D.C. 20555 Laurens R. Schwartz, Esq.

Margaret Oppel, Esq. Honorable Richard L. Brodsky Botein, Hays, Sklar and Hertzberg Member of the County Lagislature 200 Park Avenue Westchester County New York, New York 10166 County Office Building White Plains, New York 10601 Honorable Ruth W. Messinger Member of the Council of the Zipporah S. Fleisher City of New York West Branch Conservation District #4 Association City Hall 443 Buena Vista Road New Yo rk , New Yo rk 10007 New City, New York 10956 Greater New York Council Mayor George V. Begany on Energy Village of Buchanan c/o Dean R. Corren, Director 236 Tate Avenue New York University Buchanan, New York 10511 26 Stuyvesant Street New York, New York 10003 Judith Kessler, Coordinator Rockland Citizens for Safe Energy Geoffrey Cobb Ryan 300 New Hemstead Road Conservation Committee Chairman New City, New York 10956 Director, New York City Audubon Society David H. Pikus, Esq.

71 West 23rd Street, Suite 1828 Richard F. Czaja, Esq.

New York, New York 10010 330 Madison Avenue New York, New York 10017 Lorna Salzman Mid-Atlantic Representative Amanda Potterfield, Esq.

Friends of the Earth, Inc. P.O. Box 384 208 West 13th Street Village Station New York, New York 10011 New York, New York 10014 i

%s c' / Ruthanne G. Miller, Esq.

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! Atomic Safety and Licensing Board Panel

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