ML20054G210
| ML20054G210 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 06/17/1982 |
| From: | Dhoemaker C, Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-678, ISSUANCES-OL, LBP-81-52, NUDOCS 8206210274 | |
| Download: ML20054G210 (44) | |
Text
1k.
m UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOAIS JJN 18 A9 :33 f
Administrative Judges:
p,ift.,GTG.
7
.C Stephen F.
Eilperin, Chairman BRMJChi Christine N. Kohl Dr. Reginald L. Gotchy igVED JUN 71982 1
)
In the Matter of
)
)
COMMONWEALTH EDISON COMPT.NY
)
Docket Nos. 50-454 OL
)
50-455 OL (Byron Nuclear Power Station,
)
Units 1 and 2)
)
)
Mr. Myron M.
Cherry, Chicago, Illinois (with whom Mr.
Peter Flynn was on the brief), for the intervenor Rockford League of Women Voters.
Mr. Michael I. Miller, Chicago, Illinois (with whom Messrs. Paul M.
Murphy and Alan P. Bielawski were on the brief), for the applicant Commonwealth Edison Company.
DECISION June 17, 1982 (ALAB-678)
The Rockford League of Women Voters (the League) has appealed from two Licensing Board decisions that dismissed the League from this operating license proceeding because of the League's willful failure to answer interrogatories as
{
required by the Board's August 18, 1981 order (discovery order).
See LBP-81-52, 14 NRC 901 (1981), reconsideration
~
- denied, LBP-82-5, 15 NRC __.(19 8 2).
Because we believ'e the l
C r-) 0 /
u 0206210274 820617 l
PDR ADOCK 05000454 O
PDR l
L
g.
4 2
' Licensing Board acted inconsistently with Nuclear Regulatory Commission policy in imposing the most severe sanction for the League's failings, we reverse and remand for further proceedings in conformity with this opinion. -1/ In ordering reinstatement, we take various steps to assure that the League does not benefit frem the delay it has caused in this proceeding.
See infra, pp. 40-44.
I.
Factual Background While the most critical facts in this case concern the events giving rise to the Licensing Board's discovery order and the League's response (or lack of response) to it, a fuller exposition of the facts is necessary to understand our disposition of this appeal.
We begin with the Licensing Board's December 19, 1980 memorandum and order.
There the Board overruled many of the objections raised by the NRC staff and Commonwealth Edison Company (Commonwealth Edison or applicant) to the League's revised contentions.
The Board's
~~1/
The Commission's May 20, 1981 Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454, provides, among other things, that the sanction of dismissal is to be reserved for the most severe instances of a participant's failure to meet its obligations.
See discussion infra, pp. 20-22, 33-44.
+
4
F 4
3 order admitted 114 of the League's contentions and instructed that " discovery shall commence forthwith Id. at 698.
2/
Approximately two months went by and none of the parties initiated discovery. -
Instead, on February-13, 1981 Commonwealth Edison sought reconsideration of the Board's ruling insofar as it admitted 53 particular League
- I contentions.
When the Board had not ruled on that petition by July 8, 1981, the applicant finally submitted to the League and also to the other intervenor, DAARE/ SAFE,
_2/
The League had originally filed 13 contentions, while the other intervenors, the DeKalb Area Alliance for Responsible Energy (DAARE) and the Sinnisippi Alliance for the Environment (SAFE) had jointly filed ten.
At the special prehearing conference held August 21-22, 1979, the Licensing Board urged the NRC staff, applicant, and the intervenors to attempt to formulate an agreed set of contentions.
The parties were unable to agree and the League submitted its revised contentions, greatly expanded, on March 10, 1980.
Close to a third of the contentions were almost a verbatim copy of those from another proceeding.
The applicant and staff opposed the contentions in large measure.
There the dispute rested until December 19, 1980., when the Board issued its opinion.
_3/
But see infra, n.
22.
4
'four "boilerplate" interrogatories.-4/
Neither responded.
Commonwealth Edison then promptly filed a motion to compel
_4/
In full, the interrogatories addressed to the League read:
1.
With respect to each Contention advanced by the League which has been admitted by the Atomic Safety and Licensing Board in the above-captioned proceeding, list the following:
a.
A concise statement of the facts supporting each Contention together with references to the specific sources and documents and portions thereof which have been or will be relied upon to establish such facts; b.
the identity of each person expected to be called as a witness at the hearing; c.
the subject matter on which the witness is expected to testify; d.
the substance of the witness's testimony.
2.
With respect to each witness identified in the League's response to Interrogatory 1 above, identify each document which the witness will rely upon in whole or in part in the preparation of his j
testimony or in the development of his position.
I 3.
With respect to each witness identified in the League's response to Interrogatory 1 above, identify the witness's qualifications to testify on the subject matter on which the witness will testify.
4.
Identify all persons who participated in the preparation of the answers, or any portion thereo,f, to these Interrogatories.
~
4 5
discovery.
5 '
On August 5 the League filed an objection to the interrogatories.
It argued that they were premature because (1) the Board had not yet ruled upon applicant's petition for reconsideration, and (2) the staff's Safety Evaluation Report (SER) had not yet issued.
The League also noted that it had not settled upon what witnesses it expected to call at the hearing. 5 Two days later the League filed what it termed a " response" to the motion to compel discovery where it asserted further that both of the League's lawyers had been engaged virtually full-time in another case.
The League also claimed that hearings in this case would not begin for at least another year and that its answers to the interrogatories at this preliminary stage would be of minimal (if any) benefit, grossly disproportionate to the time and effort entailed in formulating answers.
- Finally, 5
~-S/
The answers to the interrogatories were due July 27, 1981.
See 10 CFR 2.740b(b), 2.710.
Commonwealth Edison filed its motions to compel discovery by the League and DAARE/ SAFE on July 30.
_6/
Objections to Commonwealth Edison's First Round of Interrogatories to Rockford League of Women Voters (August 5, 1981).
L 6
the League argued that Commonwealth Edison had not even consulted the League.in an attempt to resolve differences over th'e interrogatories, that local court practice would require such an effort before a motion to compel could be filed, and that the League stood ready and willing to confer with the applicant in an attempt to reach an agreement on the matter.
2!
II.
The Licensing Board's Orders and the Parties' Resp $nses 1.
On August 18, 1981 the Licensing Board issued a memorandum and order that denied the applicant's petition for reconsideration of the Board's December 1980 ruling on contentions, and granted the applicant's motion to compel discovery by the League " subject to a prompt conference between the parties."
LBP 30-A, 14 NRC 364, 374 (1981). 8/
_7/
League Response to Motion to Compel Discovery (August 7, 1981).
--8/
The Board's memorandum and order also granted the applicant's motion to compel discovery by DAARE/ SAFE, and directed those intervenors to file responsive answers " forthwith."
14 NRC at 374.
e t
7 The Board rejected the League's excuses for not answering the interrogatories.
The first of these -- that the interro'gatories were premature because applicant's petition for reconsideration had not been ruled upon --
was mooted by the Board's denial of that petition.
As to the prematurity claim based upon non-availability of the SER, the Board responded:
While more information may be available when the SER is filed, there is presently available a large amou.?t of documentary and other information.
The movant is entitled to full and responsive answers based upon the presently known status of these matters, and to additional information when it becomes available.
Id. at 373.
With regard to the engagements in other proceedings of the League's counsel, the Board stated:
The involvement of a party's lawyers in litigation or other professional business does not excuse noncompliance with nor extend deadlines for compliance with our rules of practice.
The League's response is also a bit too casual about the length of time available for [tri al]
preparations leading to the 1,ommencement of evidentiary hearings.
A schedule will be issued soon by the Board.
However, a large number of somewhat complex contentions have been filed by the League, and the Applicant is not required to delay discovery or trial preparation.
Id. at 373-74.
Finally, the Board took cognizance of the League's desire for a conference with Commonwealth Edison in an effort to work out differences over the interrogatories:
J 8
The last point relied on by the League's response concerns the request for consultation on discovery between or among the parties.
This request is
- covered by paragraph 1 of-the discovery rules set forth supra.
The parties will be allowed a reasonable period of time to confer.
- However, responsive answers shall be filed to these and other interrogatories promptly, and discovery shall be conducted expeditiously.
Id. at 374.
El
--9/
The " discovery rules" to which the Board alluded were nine measures set out earlier in its opinion to clarify and expedite further discovery.
In full, they were as follows (M. at 372-73) :
1.
All parties are directed to confer directly with each other regarding alleged deficiencies in discovery before resorting to motions involving the Board.
To this end, voluntary discovery and disclosure are highly encouraged.
All motions involving discovery controversies shall describe fully the direct efforts of the parties to resolve such disputes themselves.
2.
We reaffirm a rule previously adopted, requiring that pursuant to the provisions of 10 CFR S2.740 (e) (3), all interrogatories filed by any party to this proceeding, past or future, shall be deemed to be continuing in nature, and the party to whom they are addressed shall be under a continuing duty to supplement the responses as i
necessary to keep them currently accurate.
3.
Objections to interrogatories or document requests shall be set forth in an appropriate motion for protective order, accompanied by points and authorities sufficient to enable the Board to rule immediately upon receipt of the opposing party's answer to be filed within ten (10) days (10 CFR SS2.718, 2.730, 2.740, 2.740b, 2.741).
(FOOTNOTE CONTIN 0ED ON NEXT PAGE).
S
9 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
_9/
4.
All filings scheduled by the Board shall be physically lodged with the Board and parties on or before the due date, not merely mailed on that date.
Expedited or following day delivery shall be employed when necessary.
5.
The sheer number, volume and complexity of interrogatories should be substantially reduced.
Boiler plate formulas involving unnecessary and redundant details should be avoided.
The Board will consider limiting the number of interroga-tories in accordance with the Commission's suggestion above, to achieve a smaller number of better focused interrogatories.
6.
A failure to furnish requested information based upon a claim of awaiting further discovery is unresponsive unless precise information is given as to the nature and status of pending discovery,.and a specification of the relevancy of such facts to the requested information.
7.
All discovery shall be expedited to the maximum extent reasonably possible, to accommodate an accelerated hearing schedule that will be issued shortly.
8.
A party who files a motion shall not have a right to reply to an answer in opposition thereto, unless prior leave is obtained from the presiding officer (10 CFR S2.730(c)).
Such leave will be granted sparingly, and then only upon a strong showing of good cause.
9.
The parties are reminded that interrogatories are not the sole discovery method established by our Rules of Practice (10 CFR SS 2.740-2.742).
A well-timed deposition can often accomplish more than six months of back-and-forth fencing over interrogatories and answers.
(FOOTNOTE CONTINU,ED ON NEXT PAGE)
10 As noted above, the Board's opinion concluded by granting applicant's motion to compel discovery by the League " subject to a prompt conference between the parties."
The very next day the Board issued a scneduling order that (as made more stringent on September 9, 1981) put a November 1, 1981 completion date for all discovery pending under the dugust 18, 1981 discovery order, " including answers to interrogatories, production of documents, and deposi-tions." 1S 2.
At this same time another proceeding involving Commonwealth Edison and the League was pending before the Illinois Commerce Commission, the agency that has the obligation under state law to pass upon the need for the (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
--9/
These measures had been adopted in toto from a recent licensing board ruling in another proceeding in implementation of the Commission's contemporaneous guidance on board management of discovery.
See Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-81-22, 14 NRC 150, 155-57 (1981), and Statement of Policy, supra, n.1, 13 NRC at 455-56.
10/
The Board's scheduling order also reflected staff information that the SER would be issued February 7, 1982.
SER discovery was to begin February 8, 1982 and the hearing was (and still is) scheduled to start in August 1982.
8
11 Byron facility. 11/
It too was in the discovery stage. 1 !
~
On September 10 and 15, 1981 the League and Commonwealth Edison conferred about discovery in both proceedings, but focused principally on the state regulatory
~~11/
In November 1980, the League had asked the state commission to institute a proceeding to determine whether the Byron certificate of public convenience and necessity should be suspended, modified, or revoked because of the economic impact of the facility's asserted safety problems.
See Rockford League of Women Voters v. Commonwealth Edison Co.,
Ill.
C.C.
Docket No.
80-0760.
12/
That did not exhaust the proceedings involving the League and Commonwealth Edison.
At the time it filed its request with the state commission, the League also filed a 10 CFR 2.206 request with the NRC's Director of Nuclear Reactor Regulation seeking a halt of construc-tion at Byron and suspension of the construction permit.
The 2.206 request was denied in Commonwealth Edison Co. (Byron Station, Units 1 and 2), DD-81-5, 13 NRC 728 (1981), affirmed sub nom., Rockford League of Women Voters v. Nuclear Regulatory Commission, No.
81-1772 (7th Cir., June 3, 1982).
G e
T
L l
12
- proceeding. 13/ The upshot of the discussions was an agreement by the League to answer Commonwealth Edison's interrogatories in the NRC proceeding by October 1, and a series of agreements dealing with discovery in the state regulatory proceeding. 14/
Two issues on which the parties 13/
The correspondence between Mr. Paul M. Murphy for Commonwealth Edison and Messrs. Myron Cherry and Peter Flynn for the League evidencing these conversations
- includes, e.g.,
letter of Paul M. Murphy to Peter Flynn (September 4, 1981), reproduced in LBP-81-52, 14 NRC at 909-10; letter of Paul M. Murphy to Myron Cherry (September 16, 1981), reproduced in id, at 911;* letter of Myron M. Cherry to Paul M. Murphy (September 16, 1981), attached as Exhibit 21A to Commonwealth Edison's Opposition to the League's Petition for Reconsideration (November 23, 1981); letter of Paul M. Murphy to Myron Cherry (September 17, 1981), attached as Exhibit 14 to League Petition for Reconsideration of Board Orders of October 27, 1981 (November 6, 1981).
--14/
These latter understandings relative to the state proceeding included the scheduling of depositions of witnesses for late September and October, Commonwealth Edison's commitment to respond to the League's interrogatories no later than September 28 and to produce requested documents by October 5, and a tentative discovery cutoff date (the end of October),
subject to resolution of outstanding items by the state hearing examiner.
See letter of Myron M. Cherry to Paul M. Murphy (September 16, 1981), and letter of Paul M. Murphy to Myron Cherry (September 17, 1981), supra, n.13.
6
13 did not agree (or at least had a different understanding of
~
their agreement), however, concerned who would pay the fees for taking the depositions of the League's expert witnesses in the state proceeding, and whether the League's answers to Commonwealth Edison's interrogatories in the NRC proceeding were contingent upon Commonwealth Edison's discovery-responses in the state proceeding.1E The deposition fee dispute led Commonwealth Edison on September 18 to withdraw from its agreements on discovery in the state proceeding.
See infra, p.
32.
That action, according to the League's later filings, assertedly provided the ground for the League's withdrawal from its agreement to provide answers to 15/
Compare letter of Myron M.
Cherry to Paul M. Murphy (September 16, 1981), supra, n.13 (refusing to produce expert witnesses unless Commonwealth Edison commits to paying S2,200 in expenses and fees), with letter of Paul M.
Murphy to Myron Cherry (September 18, 1981),
attached as Exhibit 16C to League Petition for Reconsideration of Board Orders of October 27, 1981 (November 6, 1981) (asserting previous agreement that League would produce expert witnesses Hubbard and Minor without resolving the question of who would pay their professional fees, subject to a subsequent ruling from the state regulatory hearing examiner).
e e
4
/~
I 14
- Commonwealth Edison's interrogatories in the NRC proceeding.16/
Whe'n October 1 passed without Commonwealth Edison having received the League's answers to the interrogatories, the applicant sought to arrange a conference call with the parties and the Licensing Board to discuss the matter.. The call took place October 2 without the League's participa-tion. 11 During the call the Licensing Board advised the applicant to put its dispute with the League over the lack of answers to its interrogatories in a written motion to which the League could then respond.
16/
Letter of Paul M. Murphy to Myron Cherry (September 18, 1981), attached as Exhibit 16C to League Petition for Reconsideration of Board Orders of October 27, 1981 (November 6, 1981); League Response to Motion for Sanctions (October 13, 1981) at 1-2 (asserting that the League's answering of interrogatories in the NRC proceeding was contingent upon receipt of certain documentary and other information from Commonwealth Edison).
17/
The League and Commonwealtn Edison disagree about whether the League's counsel had agreed to make himself available for the planned conference call.
Compare Commonwealth Edison Motion for Sanctions (October 2, 1981) at 3-4 with League Response to Motion for Sanctions (October 13, 1981) at 3.
The dispute is immaterial for our purposes.
Further, a transcript of the conference call was kept and no matter of substance was decided.
b
15 That same day Commonwealth Edison filed a verified motion for sanctions seeking the dismissal of the League as a party'to the Byron proceeding for " wilfully flaunt [ing]"
(sic) the Board's August 18 order requiring prompt answers to the interrogatories.18/ In turn, the League filed a verified response that asserted that answering Commonwealth Edison's interrogatories was contingent upon receipt of certain information, and that the applicant had breached its agreement to supply that information. 19/ The League further claimed -- once again -- that throughout August and Sepecmber its counsel, Mr. Cherry, had been engaged virtually full-time in litigation in another proceeding, and that Mr. Cherry's partners were not available to assist in answering the interrogatories.
The League reemphasized that given the distant hearing date (see suora, n.10) it did not see why the current wave of discovery could not proceed later, simultaneously with SER discovery after that document 18/
Commonwealth Edison Motion for Sanctions (October 2, 1981) at 4.
19/
League Response to Motion for Sanctions (October 13, 1981) at 1-2 and Exhibit C.
16
~ had issued.
The League concluded by pointing out that it was raising serious safety and economic issues that in the public Interest deserved to be litigated fully.
3.
On October 27, 1981 the Licensing Board issued its memorandum and order dismissing the League as a party for "the League's total failure to provide responsive answers to
'nterrogatories."
14 NRC at 906. 20/ The Board found that i
interrogatories (such as those served by Commonwealth Edison) that inquired into the factual bases for contentions, their evidentiary support, the identity of witnesses and the substance of their expected testimony were a common and reasonable method of discovery.
The Board went on to note that answers to the interrogatories had been due since July 27, 1981 and that the Board's August 18 discovery order had overruled the League's objections to them -- the same kind of objections (other engagements of counsel and prematurity) that the League was reiterating in its response to Commonwealth Edison's motion for sanctions.
Id. at 902-04.
--20/
The staff took no position on the dispute and has not participated on the appeal.
6
17 Nor was the Board impressed by the League's argument that information Commonwealth Edison was to provide in the state regulatory proceeding was a pre-condition to the League's answering applicant's interrogatories in this proceeding.
The Board stated:
The disputes between counsel concerning depositions and other discovery, as shown by the League's Exhibits A, C and D, do not relate to the instant NRC proceeding.
As they show on their face, they involve some pending Illinois Commerce Commission proceeding.
The Board does not intend to become involved in some collateral litigation which is not shown to be relevant to this proceeding.
Id. at 906.
The Board referred to two letters from Commonwealth Edison to the League that. reflected a number of attempts by the applicant since the discovery order to obtain from the League a date certain by which the interrogatories would be answered, and the League's commitment, given September 15, to provide answers by October 1. 21/ The Board found nothing in the League's response "to excuse or condone the League's total failure to I
provide responsive answers to interrogatories."
Ibid.
It concluded with the following observations (id at 907-08):
21/
Letter of Paul M.
Murphy to Peter Flynn (September 4, 1981) and letter of Paul M.
Murphy to Myron Cherry (Septembe,r 16, 1981), supra, n.13.
i
18 The facts
. establish that the League and its counsel have deliberately and willfully refused to comply with the Board's Order of August 18, 1981, and have not answered interrogatories or furnished ordered discovery for a long period of time.
The nature of the pretexts and excuses offered for such noncompliance demonstrate that such conduct is not an isolated incident, but rather is part of a pattern of behavior which seriously impedes our proceedings and impairs the integrity of our orders.
Sanctions are therefore appropriate both to give all parties due process in this proceeding, and to deter similar conduct by other parties in the future.
The Commission has indicated that the presiding officer has the necessary authority to " impose appropriace sanctions on all parties who do not fulfill their responsibilities as participants."
In a recent policy statement, the Commission has discussed the spectrum of sanctions available to licensing boards to assist in the management of proceedings, including the dismissal of a party.
Unjustified refusals or failures to comply with discovery orders have resulted in the dismissal of parties or contentions.
Under all of the circumstances shown in this proceeding, the Board finds that the League should have all of its contentions stricken, and it should be dismissed as an Intervening party (10 CFR SS2.707, 2.718, 2.740) [ footnotes omitted].
4.
The League filed a detailed petition for reconsideration, and Commonwealth Edison an equally detailed response.
On January 27, 1982, the Board issued its memorandum and order denying the petition for reconsideration.
LBP-82-5, 15 NRC __.
The Board rejected the League's claim that it was being unfairly treated h
19 because Commonwealth Edison had not responded to the League's discovery requests, S and it again rejected as irrelevant the claimed discovery overlap with the state 2}/
proceeding and the discovery disputes among counsel.
22/
The League submitted interrogatories to the applicant-and staff on March 12, 1980, two days after it filed 146 revised contentions.
Because the admissibility of those contentions had not then been ruled upon, the interrogatories were opposed as premature under 10 CFR
- 2. 740 (b) (1).
That rule provides that discovery "shall relate only to those matters in controversy" which have been identified by the presiding officer.
On December 19, 1980 the Licensing Board issued its detailed order which ruled for the first time on the admissibility of the revised contentions and provided that " discovery shall commence forthwith upon all issues included in the admitted contentions."
12 NRC at 698.
The Board later explained that it intended that provision to dispose of all pending disputes concerning discovery, both as to the scope of controverted issues and the formal commencement of discovery.
Nothing remained pending or undisposed of, and it was so understood by the parties.
15 NRC at (slip opinion at 5).
Thus, the Board's December 197 1980 order triggered the onset of discovery.
The League was obliged at that time to propound its discovery requests, rather than rely on premature filings.
23/
These latter excuses, the Board said, "cannot be used l
to justify a pattern of conduct which flouts the Boar.d's orders."
15 NRC at __ (slip opinion at 7).
l
20 Next, the Board found unpersuasive the League's argument that in previous NRC cases the sanction of dismissal had not been so' swiftly imposed. 24/
The Board concluded by noting:
[E]ven at this late date the League has successfully refused to provide the evidentiary bases for its admitted contentions, in spite of the clear mandates of Orders entered December 19, 1980 and August 18, 1981 No Board can manage discovery and conduct reasonably expeditious operating license hearings if such deliberate and willful behavior is to be tolerated (footnotes omitted}.
Id. at (slip opinion at 8-9).
This appeal followed.
III.
Analysis A.
General Principles one year ago the Commission set forth the principles governing imposition of sanctions. See Statement of Policy On Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981).
This policy statement was prompted by the Commission's recognition that the licensing boards are faced
~~24/
Thus the Board stated: "[T]he League cannot successfully contend that it made its decisions to ignore or challenge the Board's Orders in reliance upon its belief that other boards tolerated such behavior longer.
A party cannot repeatedly test a board to see how close it can come to defying orders with impunity, without running some risk of encountering sanctions."
Id. at (slip opinion at 8).
8 p
21 with an unprecedented number of hearings, and the concern that, consistent with fairness, the hearing process should not unnecessarily delay operation of plants that are ready and safe to operate.
To help achieve that end, the Commission identified the types of actions that individual licensing boards can take to reduce the time for completing proceedings.
Most pertinent to the matter at hand is the general guidance at the outset of the policy statement (id.
at 454):
Fairness to all involved in NRC's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with applio'le law and Commission regulations.
While a be.
should endeavor to conduct the proceeding a
in a manner that takes account of the special circumstances faced by any participant, the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations.
When a participant fails to meet its obligations, a board should consider the imposition of sanctions against the offending party.
A spectrum of sanctions from minor to severe is available to the boards to assist in the management of proceedings.
For example, the boards could warn the offending party that such conduct will not be tolerated in the future, refuse to consider a filing by the offending party, deny the right to cross-examine or present evidence, dismiss one or more of the party's contentions, impose appropriate sanctions
.cn1 counsel for a party, or, in severe cases, dismiss the party from the proceeding.
In selecting a sanction, boards should consider the relative importance of the unmet obligation, its potential for harm to other parties or the orderly conduct of the proceeding, whether its occurren'ce
22 is an isolated incident or a part of a pattern of behavior, the importance of the safety or environmental concerns raised by the party, and all of the circumstances.
Boards should attempt to tailor sanctions to mitigate the harm caused by the failure of a party to fulfill its obligations and bring about improved future compliance.
At an early stage in the proceeding, a board should make all parties aware of the Commission's policies in this regard.
It is against these principles that we must measure the League's conduct in this case.
In that regard, we consider three questions:
(1) what obligations did the Board's orders impose; (2) did the League fail-to meet any of its obligations; and (3) if so, what sanction is appropriate?
We approach these issues with full recognition that the Licensing Board is entitled to a substantial degree of deference in the management and conduct of proceedings before it.
Nevertheless, as we explain below, we differ on certain points with the Board and remand the case to it for further proceedings consistent with this ooinion.
i B.
Board Orders 1.
The first of the two orders on which the i
Board's dismissal action was predicated -- that of m
O 8
e 23 December 19, 1980 -- can be disposed of quickly. 25/
- The gist of that Board memorandum was its ruling on contentions the League sought to litigate.
The Board's opinion admitted the majority of the League's contentions and concluded with an order that provided "[t] hat discovery shall commence forthwith upon all issues included in the admitted bontentions."
12 NRC at 698.
But neither the League nor the applicant pursued any discovery until July 8, 1981 --
almost seven months later -- when Commonwealth Edison submitted its four boilerplate interrogatories to the League.
To the extent the Board viewed its order as imposing an affirmative obligation on the parties to undertake any discovery -- an exercise of questionable 25/
In dismissing the League, the Board found that it had willfully refused to comply with the Board's order of August 18, 1981, and that the nature of the excuses offered for such noncompliance demonstrated a pattern of behavior that seriously impeded the proceeding and threatened the integrity of its orders.
14 NRC at 907.
When denying the League's petition for reconsideration the Board elaborated further that the League had
" refused to provide the evidentiary bases for its admitted contentions, in spite of the clear mandates of Orders entered December 19, 1980 and August 18, 1981
[ footnotes omitted]." 15 NRC at __ (slip opinion at 8).
e e
24
- authority at best 26/ -- we see no meaningful distinction between Commonwealth Edison's delinquent conduct and that of the League.
Thus, if the Board's dismissal action is to be justified, it must find the support elsewhere.
2.
We-have already described at length the Board's August 18, 1981 discovery order.
See supra, pp. 6-10.
That drder rejected the League's grounds for not answering Commonwealth Edison's interrogatories.
Taking cognizance of the desirability of a conference between the parties as a means of resolving discovery controversies, however, the Board granted the applicant's motion to compel discovery by the League, " subject to a prompt conference between the
.c parties."
14 NRC at 374.
2 The League and Commonwealth Edison have rather
~
divergent interpretations of the meaning to be attached to that Board order.
The applicant's position is that the Board intended only the timing of the League's answers to 26/
The Board is, of course, empowered to impose cutoff dates for completion of discovery.
However, the failure of a party to conduct discovery, while obviously not a wise course of action, is a matter of voluntary choice and does not, we would think, constitute a failure to prosecute its case.
e 8
.-.,a
4 25 be open for discussion at the parties' conference. 27/ The League's position, seemingly, is that-the only obligation imposed' was for the parties to confer. 28/
We agree with neither of those interpretations.
The Board's directions were given in the context of an opinion that included general discovery guidance offered
~"[a]s an aid to the parties in conducting discovery fairly and expeditiously."
Id. at 370.
That guidance reflected the Commission's then recent policy statement on the conduct of licensing proceedings, which seeks to minimize the use of 27/
App. Tr. 55-56.
28/
Thus, counsel for the League argued before us that the
-~
Board "never ordered the interrogatories to be answered."
App. Tr.
9.
When pressed again, counsel stated, "Well, my obligation under the August 18th order in light of the meetings that'I had with counsel was not to answer the interrogatories."
App. Tr. 13.
e Y
t 6
1
26
- interrogatories. 29/
Along those lines, the Board specifically suggested that depositions might well be preferab'le to interrogatories (id. at 373) :
The parties are reminded that interrogatories are
~
not the sole discovery method established by our Rules of Practice (10 CFR SS2.740-2.742).
A well-timed deposition can often accomplish more than six months of back-and-forth fencing over interrogatories and answers.
A reasonable in wrpretation of that passage, and of the August 18 opinion as a whole, is that the Board was
~~29/
Thus the Board set out the following passage from the Commission's policy statement:
The Commission is concerned that the number of interrogatories served in some cases may place an undue burden on the parties, particularly the NRC staff, and may, as a consequence, delay the start of the hearing without reducing the scope or the length of the hearing.
The Commission believes that the benefits now obtained by the use of interrogatories could generally be obtained by using a smaller number of better focused interrogatories and is considering a proposed rule which would limit the number of interrogatories a party could file, absent a ruling by the Board that a greater number of interrogatories is justified.
Pending a Commission decision on the proposed rule, the Boards are reminded that they may limit the number of interrogatories in accordance with the Commission's rules.
14 NRC at 371, quoting 13 NRC at 455-56.
b e
S w
27 suggesting t'o the parties that they considsr not only fixing a date certain.for the League's answers to interrog'atories, but also proceeding with depositions before pursuing the outstanding interrogatories further.
This is not to say, however, that the Board's order had no force if the parties did not agree upon an acceptable sequence of discovery.
The Board plainly did more than call upon the parties to confer.
If the August 18 order simply ordered the parties to confer, as the League suggests, then the Board would not have ruled upon the propriety of Commonwealth Edison's interrogatories, or rejected the League's excuses, or ordered the interrrogatories to be answered subject to a prompt conference between the parties.
The League cannot escape the fact that the Board did grant Commonwealth Edison's motion to compel answers and directed that " responsive answers shall be filed to these and other interrogatories promptly, and discovery shall be conducted expeditiously."
Id. at 374 (emphasis added).
If, at the conference, the League could not convince the applicant to alter its sequence of discovery, then the League had no option but to answer the interrogatories as propounded or
-___n_-._-__
28 30/
' file a motion for a protective order.
The League did not have the option of doing nothing.
As matters unfolded and as we discussed, supra, pp.
11-14, the parties did confer in the beginning of September.
Whether an agreement was reached for the League to answer Commonwealth Edison's interrogatories by a date certain is dibputed.
There is also disagreement about whether Commonwealth Edison voluntarily deferred from insisting upon answers from the League until after it had furnished the 30/
The Board's discovery guidance also advised the parties as follows (14 NRC at 372) :
Objections to interrogatories or document requests shall be set forth in an appropriate motion for protective order, accompanied by points and authorities sufficient to enable the Board to rule immediately upon receipt of the opposing party's answer to be filed within ten (10) days (10 CFR SS2.718, 2.730, 2.740, 2.740b, 2.741).
Presumably the League could have argued that Commonwealth Edison was unreasonable in insisting upon answers to interrogatories as the first step.
Alternatively, perhaps the League could have sought additional time in which to answer the interrogatories.
While the Board's order had not fixed a date certain i
for the answers, its insistence that the parties hold their conference promptly, coupled with a scheduling j
order that set a November 1 cutoff date for all discovery under the August 18 order, would lead a reasonable person to understand that the League was under an obligation to answer the interrogatories very soon after the parties' conference.
I a
29 League certain information.
Were we obliged to resolve l
those disputes we would have no hesitancy in finding the League's' version inherently incredible.31/
31/
The applicant's version, supported by several affidavits, is that at the parties' September 10 meeting Mr. Cherry insisted that Commonwealth Edison provide information the League had requested in connection with the state regulatory proceeding before the League would answer the applicant's interrogatories in the NRC proceeding.
Commonwealth Edison refused to make such an agreement and pressed Mr. Cherry for a date certain when the League would answer the pending interrogatories.
Mr. Cherry refused to provide a date but promised to provide one the following week.
See Affidavits of Paul M. Murphy at 4-5; Alan P.
Bielawski at 3-4; Leslie A.
Bowen at 4; Tom Robert Tramm at 3-4; James T. Westermeier at 3; Kenneth A. Ainger at 2; and John M.
Lavin at 3, attached as Exhibits 1-3, 5-8, respectively, to Commonwealth Edison's Opposition to the League's Petition for Reconsideration (November 23, 1981).
Thereafter at a September 15 meeting between Mr. Cherry and Mr. Murphy, Commonwealth Edison's counsel (attended in part by Messrs. Miller and Bielawski for Commonwealth Edison as well), Mr. Cherry stated that he would answer the interrogatories in the NRC proceeding by October 1, 1981.
Mr. Murphy followed up that discussion with a September 16 letter to Mr. Cherry specifically noting the fact that the previous day Mr.
Cherry had " agreed to provide answers
[to Commonwealth Edison's interrogatories] by October 1, 1981."
See 14 NRC at 911.
Mr. Cherry made no response to that letter until after Commonwealth Edison filed its Motion for Sanctions on October 2.
In sum, the applicant's version is that it insisted upon its right to have its interrogatories answered, that it rejected any link between NRC discovery and discovery before the state commission, and that Mr. Cherry breached his agreement,to provide answers by October 1.
(FOOTNOTE CONTINUED ON NEXT PAGE)
30 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
--31/
Mr. Cherry's version, supported by his verified pl(ading, is that, during repeated telephone conversations and face-to-face meetings, he and Mr.
Murphy agreed that the League's answering the interrogatories would be contingent upon the receipt of certain other information from Commonwealth Edison.
League Response to Motion for Sanctions (October 13, 1981) at 1-2.
Mr. Cherry's pleading attached a September 16 letter from him to Mr. Murphy'in which Mr.
Cherry summarized the agreements reached in that regard.
The letter reflects that Commonwealth Edison was to provide Mr. Cherry by September 28 answers to interrogatories the League had propounded in the state regulatory proceeding.
Commonwealth Edison was also to provide the League certain documents in connection with a September 22 deposition of a Mr. Bukovski, who was a prospective witness on financial matters in the state proceeding.
At oral argument we advised Mr. Cherry that the allegedly conditional nature of the League's obligation to furnish answers to the interrogatories was not apparent from any of the documentary evidence in the case.
Mr. Cherry then responded that the agreement, at least as he understood it, was an oral one, that it is
" pretty hard these days to be found guilty of perjury,"
and that it was possible "that the lawyers had an ordinary, good faith lawyers' disagreement."
App. Tr.
75-76.
We find the League's version not worthy of being credited for several reasons.
First, the September 16 letter of Mr. Murphy to Mr. Cherry reflects an unconditional agreement by Mr. Cherry to answer Commonwealth Edison's interrogatories by October 1.
See 14 NRC at 911.
It is reasonable to believe that if Mr. Cherry considered that representation to be erroneous, he would have said as much in writing.
There is no paucity of letter-writing between Messrs.
Murphy and Cherry, and indeed the correspondence continued in the latter half of September on lesser issues.
Especially in light of the Board's August 18 (FOOTNOTE CONTINUED ON NEXT PAGE) 4
31 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
--31/
order putting the League under an obligation to answer the interrogatories promptly, it is fair to infer that so critical a " misunderstanding" on Mr. Murphy's part would have drawn swift and certain correction from Mr.
Cherry.
Second, the information that Mr. Cherry claims was necessary for the League's answers to interrogatories was to be supplied by Commonwealth Edison on September 28.
See League Response to Motion for Sanctions (October 13, 1981) at 1-2 and Exhibit A.
Under Mr.
Cherry's version of the agreement he then was to furnish the applicant answers by October 1, three days later.
Yet at various times in the League's brief we are told that to answer Commonwealth Edison's interrogatories "would require in excess of two hundred hours of work, or five normal full-time work weeks Brief in Support of Exceptions to Orders Dated October 27, 1981 and January 27, 1982 (March 22, j
1982) at 7 (emphasis in original).
See also id, at 18.
It is not credible that the assertedly tedious-five-week task could have been accomplished in three days if only Commonwealth Edison had supplied the League with information that in any event would have been of doubtful relevance.
(The applicant's interrogatories asked for information bearing upon the League's contentions, prospective witnesses, their qualifications, and the substance and documentary support for their testimony.
See supra, n.4.)
Third, we note that Mr. Cherry's version is without documentary support.
In light of the frequency of exchanges between counsel memorializing their agreements and disagreements, we would have expected Mr. Cherry to have contemporaneous written substantiation of his " agreement" with Commonwealth Edison.
Yet his own letter of September 16 clearly refers to only the state proceeding and fails to mention the critical fact of the allegedly conditional nature of the League's agreement to respond to the interrogatories.
1 g
i 32 As it turns out, however, these controversies between the parties are beside the point.
For it is quite plain that whatever agreements or understandings counsel may have had ceased as of September 18. J2/
For our purposes it is immaterial what caused this breach.
What matters is that as of September 18 the parties had conferred pursuant to the Board's August 18 order and had been unable to reach any extant agreement on discovery.
That state of affairs meant that the League was under an obligation, imposed by the August 18 order, either to answer the applicant's interrogatories or to move for a protective order.
It did neither.
The League's failure to answer Commonwealth Edison's interrogatories at that stage constituted a patent 32/
Mr. Murphy's letter of that date to Mr. Cherry concluded as follows:
Given that you have decided to withdraw from your previous agreement to produce the witnesses for the taking of their depositions, Edison has determined that it is appropriate to withdraw from its agreements on discovery.
We intend to file with the (Illinois Commerce] Commission shortly the appropriate papers to obtain a ruling from the Commission on how, if at all, this proceeding should go forward.
In the meantime, you may take this letter as notice that Edison will not voluntarily respond to any discovery originated by the League in this proceeding until such matters are resolved.
Letter of Paul M. Murphy to Myron Cherry, supra, n.16.
^
4
33 violation of the Board's discovery order.
33
C.
Sanctions The Commission's policy statement on the conduct of licensing proceedings establishes a graduated scale of sanctions, reserving dismissal for the most severe failure of a participant to meet its obligations.
In selecting a sanction the boards have been instructed to consider the relative importance of the unmet obligation, its potential for harm to other parties or the orderly conduct of the proceeding, whether its occurrence is an isolated incident or a part of a pattern of behavior, the importance of the safety or environmental concerns raised by the party, and all of the circumstances.
Boards should attempt 33/
At oral argument Mr. Cherry conceded that "perhaps after that meeting fell down I should have moved for a protective order.
I cannot give you any solid reason why I did not."
App. Tr. 15.
Counsel then sought to excuse his lack of action on grounds of the press of other litigation, and the fact that the Board's discovery order did not impose a date certain for the League's answers.
App. Tr. 15-17.
Counsel's other engagements provide no justification, especially when the issue at hand is as serious as a failure to comply with an outstanding Board order.
With regard to the absence of a date certain for answering the interrogatories, the need for prompt compliance can readily be inferred from the November 1 discovery cutoff date the Board had imposed.
The absence of a date certain for answers to interrogatories may have some bearing on the question of sanctions (see infra, pp. 36-37) but does not excuse the League's total failure to respond to Commonwealth Edison's interrogatories.
l
34
~
to tailor sanctions to mitigate the harm caused by the failure of a party to fulfill its obligations and bring about improved future compliance.
13 NRC at 454.
Our consideration of the factors enumerated in the policy statement leads us to conclude that the League's conduct in this case warrants a serious sanction, but not one so severe as dismissal.
1.
There should be no misunderstanding:
we consider the failure to comply with a board order a very serious matter indeed, injurious to the proper conduct of NRC licensing proceedings.
This is especially so when the order at issue is a discovery order, for failure to comply with an order of that kind can wholly prevent a proceeding from getting off the ground.
As we explained in Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 334-35 (1980):
" Pleadings" and " contentions" no longer describe in voluminous detail everything the parties expect to prove and how they plan to go about doing so.
Rather, they provide general notice of the issues.
It is left to the parties to narrow those issues through use of various discovery devices so that evidence need be produced at the hearing only on matters actually controverted.
This is why curtailing discovery tends to lengthen the trial
-- with corresponding increase in expense and inconvenience for all who must take part (footnote omitted).
Not only does the failure to fulfill discovery obligations unnecessarily Belay a proceeding, it is also manifestly
- 4 a
)
35 l
unfair to the other parties.
We reiterate the pointed comment of the Licensing Board in Northern States Power Co.
(Tyrone' Energy Park, Unit 1), LBP-77-37, 5 NRC 1298, 1300-01 (1977) (previously quoted with approval in Susquehanna, 12 NRC at 338):
The Applicants in particular carry an unrelieved burden of proof in Commission proceedings.
Unless they can effectively inquire into the positions of the intervenors, discharging that burden may be impossible.
To permit a party to make skeletal contentions, keep the bases for them secret, then require its adversaries to meet any conceivable thrust at hearing would be patently unfair, and inconsistent with a sound record (footnote omitted).
The League's failure to comply with the Board's discovery order in this case effectively stalled the proceeding in its tracks.
The League proffered an extraordinarily large number of contentions, skeletal in outline, and refused to divulge any information whatsoever about any of the 114 contentions admitted by the Board.
A board cannot move a proceeding forward, and a party cannot prepare its case, in the face of that kind of obstruc-tionism.
The League's obligation to answer Commonwealth Edison's interrogatories was an important one; a deliberate failure to meet it is worthy of serious sanction.
2.
The Licensing Board thought that the League's
~
conduct in not answering che interrogatories was part of'a
l 36 pattern of recalcitrance.
We see a less distinct pattern, and one in which the League is not the only participant in the process that has been the cause of delay.
It is principally for this reason that we differ with the Board on its choice of sanctions.
The pattern of League conduct identified by tha Board (1) not initiating discovery when contentions
)
encompassed were first admitted, (2) not answering any of the interrogatories that had been outstanding since July 1981, and (3) giving the flimsiest of reasons for not complying with the Board's discovery order.
See 14 NRC at 907; 15 NRC a t __ (slip opinion at 8-9).
We have already explained, supra, pp. 23-24, why the League's failure to initiate discovery cannot be held against it and does not provide an acceptable basis for distinguishing between the League's conduct and that of Commonwealth Edison.
If the League wanted to walk into a hearing uninformed about the applicant's case, or thought it could resist a motion for summary disposition without having conducted discovery, it presumably was free to make those strategic decisions.
But while one might question the usefulness of the League's participation on that basis, the League's casualness falls short of evinc,ing a pattern of delay.
After all, it is I
37 within the Board's power to impose a reasonable cutoff date for discovery.
The exercise of that scheduling power (which the Boar'd did exercise eight months thereafter on August 19, 1981) could have obviated delay in that regard, i
So too we find less obvious than the Licensing Board the asserted fact that the League had not " furnished ordered discovery for a long period of time."
14 NRC at 907.
We have already concluded that under the Board's discovery order the League's unequivocal obligation to answer the interrogatories was not triggered until September 18, when the parties' discovery agreements fell through.
(The discovery order had not itself fixed a date certain for answers, or made the obligation to answer unconditional without regard to a conference between the parties.)
In these circumstances the League's failure to answer interrogatories, while not excusable, was nevertheless not of exceptionally long duration.
While we agree with the Board that the repetitive nature of the League's excuses for failing to respond to discovery, coupled with the total failure to respond to any
{
part of the interrogatories, support the finding of a pattern of celay, we are also constrained to note that the League was not,the sole cause of delay.
Both the applicant t
38 and the Board itself contributed in some measure.
The applicant waited seven months after the Board's ruling on content ons before it initiated discovery.
See supra, p.
23.
The Board did not issue its ruling on :ontentions and its denial of the applicant's petition for reconsideration of that ruling until nearly eight and six
' months, respectively, after the parties' submissions --
action that can hardly be characterized as prompt. --34/
In
--34/
The League filed revised contentions on March 10, 1980, the applicant and staff answered on April 18 and 25, respectively, and the Board issued its ruling on December 19, 1980.
We recognize that the length and complexity of the contentions made ruling upon them far from simple, and we are not knowledgeable about the other matters the Board may have been working on during that time.
All things considered, however, it is important to expedite rulings on contentions precisely so discovery can begin.
We think a prompter ruling could have been expected.
Commonwealth Edison's petition for reconsideraton was filed on February 13, 1981 and the Board's ruling l
issued on August 18, 1981.
Responses to the petition were filed by the staff on March 3 and by the League on April 13.
We do not think the Board is obliged to l
await responses to a petition for reconsideration before issuing a ruling unless it believes it will be helped by such responses.
The typical judicial practice is that responses to petitions for reconsideration will not even be accepted for filing unless a response has been called for by the court.
In any event, the four months between the League's response and the Board's ruling would likewise appear to be an inordinate amount of time for ruling on reconsideration.
L
d 39 sum, we think the Board has overstated the League's delaying tactics and overlooked the fact that the League was not
~
alone in failing to move the proceeding along.
3.
The Commission's policy statement also calls upon its adjudicatory boards to consider the importance of the safety or environmental issues raised when assessing sIanctions.
This factor is of more importance during the later stages of a proceeding when the contentions have been fleshed out and the parties have submitted testimony.
- Here, where there is little but the bare contentions upon which to rely, this factor is of much lesser weight and not at all decisive.
That the League pursued no discovery of its own before its dismissal hardly portends that it will make a significant contribution to the proceeding, whatever may be the abstract importance of its contentions.
Similarly, the fact that fully a third of the admitted contentions were copied almost verbatim from those in another proceeding tends to show that more ink than thought went into their preparation.
On the other hand, the League supported its 10 CFR 2.206 request with affidavits of expert witnesses on l
unresolved safety problems and quality assurance and control l
l issues thought pertinent to the Byron facility.
See supra, n.12.
This lat,ter effort affords some basis for believing 1
I
e t
40 that the League might well contribute to this proceeding, at least on a narrow group of issues.
4.' Lastly, the policy statement asks the boards to consider all of the circumstances and to tailor sanctions to mitigate the harm caused by a party's failure to fulfill its obligations.
~
We have previously discussed our reasons for concluding that the sanction of dismissal is too severe given all the circumstances of this case.
See supra, pp. 33-40.
- However, the League's violation of the Licensing Board's discovery order has had the effect of freezing this proceeding at its earliest stages. 35/
The applicant should not be penalized by that wrongful conduct.
If the Byron plant is not to begin operation when it is ready, that should be as a result of a serious safety or environmental issue and not because 35/
So too, the League's laxity in even drawing up its contentions has worked its toll.
The League did not submit its revised contentions until six and one-half months after the Board's prehearing conference and four and one-half months after it had promised to submit them.
See supra, n.2, and letter of Myron Karman to the Licensing Board (October 12, 1979), attached as Exhibit 11 to Commonwealth Edison's Opposition to the League's Petition for Reconsideration (November 23, 1981).
While we recognize that the League was not represented by counsel for much of that period, the obligation to submit contentions is at bottom an obligation of the party itself, not of counsel.
41 the proceeding has been unjustifiably delayed by the League's failure to comply with the Licensing Board's discovery order.
Therefore, consistent with the Commission's policy statement permitting dismissal of one or more of a party's contentions (13 NRC at 454), we limit the number of contentions the League can litigate to that number the Licensing Board concludes it can comfortably decide on the merits without unjustifiably delaying operation of the Byron facility. 36/ This disposition, which no doubt will severely restrict the contentions the League will be entitled to press, also assures that the League must revise 36/
It is our understanding that the applicant expects the facility to be ready for fuel loading towards the end of 1983.
App. Tr. 65-66.
To the extent that the League has serious contentions to raise that cannot be litigated within this anticipated time frame, we repeat what we said ir. South Carolina Electric and Gas Co.
(Virgil C.
Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895-96 (1981), affirmed sub. nom. Fairfield United Action v. Nuclear Regulatory Commission, No.
81-2042 (D.C. Cir., April 28, 1982):
an operating license may not issue unless and until P.his agency makes the findings specified in 10 CFR 50.57 -- including the ultimate finding that such issuance "will not be inimical to *
- the health and safety of the public".
As to those aspects of reactor operation not considered in an adjudicatory proceeding (if one is conducted), it is the staff's duty to insure the existence of an adequate basis for each of the requisite Section 50.5,7 determinations [ footnote omitted).
42 its broadside approach so as to concentrate on those few contentions it is best prepared to advance. 37/ We believe this approach is most likely to lead to a useful examination of important safety or environmental issues.
We are also aware of the fact that even at this late date the League has totally failed to answer Commonwealth Edison's interrogatories.
At oral argument on May 13 we advised the League that if it were to be readmitted to this proceeding it could expect answers to those interrogatories to be required within less than one week from the date of
--37/
The choice of which contentions the League may still litigate is for the League to decide in the first instance, subject to the time constraint we have identified. In other words, the League is to rank its contentions individually for the Licensing Board and the Board will then limit them based upon its understanding of the time needed to litigate those issues.
(We would not be surprised if fewer than ten contentions can be timely heard, but that will be a determination for the Licensing Board to make in its informed discretion.)
The Board may also modify to more acceptable form contentions such as those that were admitted subject to revision upon issuance of the staff's safety evaluation report and final environmental statement -- documents that have since issued.
The Board is, of course, similarly empowered to impose stringent time limits on any discovery the League may undertake.
In deciding the number of contentions the League may litigate, the Board should bear in mind the expected duration of League discovery as well as further d,iscovery that Commonwealth Edison no doubt will undertake.
4
e d
43 our decision.
See App. Tr. 27, 73.
The League has had both ample time and warning to prepare answers to interrogatories that were first propounded nearly one year ago.
- Moreover, our restriction on the number of contentions that can be pursued has the secondary effect of easing the League's task in answering the interrogatories. 38/ Therefore, the answers are to be in the hands of counsel for Commonwealth Edison nc!
later than June 24, 1982.
The Licensing Board is to strike any contention for which an interrogatory is not fully answered.39/
--38/
As indicated supra, n.4, the interrogatories are contention specific.
39/
In this regard we also want to make clear that the very general response to interrogatories alluded to by League counsel at oral argument will not suffice.
App.
Tr. 23-26.
Answers should be complete in themselves; the interrogating party should not need to sift through documents or other materials to obtain a complete answer.
4A Moore's Federal Practice 533,25(1) at 33-129-130 (2d ed. 1981).
A broad statement that the information sought by an interrogatory is to be found in a mass of documents is also insufficient.
Harlem River Consumers Coop., Inc. v. Associated Grocers of Harlem, Inc., 64 F.R.D.
459, 463 (S.D.N.Y.
1974).
Instead, a party must specify precisely which documents cited contain the desired information.
Martin v.
Easton Publishing Co.,
85 F.R.D.
312, 315 (E.D. Pa.
1980).
See also Nagler v. Admiral Corp., 167 F. Supp.
413 (S.D.N.Y.
1958).
Where an interrogatory seeks the names of expected expert witnesses the nature of their (FOOTNOTE CONTINUED ON NEXT PAGE) 1 l
o 4
i 44
^
Finally, we take cognizance of the League's concession that, if it were found to be at fault in not complying with the Board's discovery order,' dismissal would be appropri-ate. 40/- We have not enforced that concession in this opinion.
But no further failings on the League's part will be tolerated.
It is so ORDERED.
FOR THE APPEAL BOARD Q L N M --
A_
C. Jypn Shoemaker Secretary to the Appeal Board (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
~~39/
testimony, and the substance of their opinions, the responding party may not stop at merely identifying its experts; it must provide all the information requested.
See Bates v. Firestone Tire & Rubber Co.,
83 F.R.D.
535, 538, 539 (D.S.C. 1979).
40/
As counsel for the League exaggeratedly put it, "If I am found to have been at fault, cut my head off."
App.
Tr. 71.
The League, of course, argued it was not at fault.
We have found to the contrary.
S m.
-