ML20154H676

NRC Staff Response to Lilco Supplemental Response & Motion in Alternative to Compel Discovery.* Lilco 880502 Renewed Motion for Dismissal & Applicant Alternative Motion to Compel Disovery Supported.W/Certificate of Svc

ML20154H676
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/13/1988
From:	Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#288-6368 OL-3, NUDOCS 8805260027
Download: ML20154H676 (9)

Text

Q4f 03/13/88 DOCKETED USNPO UNITED STATES OF ANERICA NUCLEAR REGULATORY COMMISSION

'88 MY 18 P4 :58 EEFORE THE ATCNIC SAFETY AND LICENSING BOARD E li E 4

ec < t ge

+

6 n n:"

In the Matter of LCEG ISLAND LIGHTING COMPANY Docket No. 60-322-OL-3 (Emergency Planning)

(Shoreham Nuclear Power Station.

)

Unit 1)

)

NRC STAFF RESPONSE TO LILCO'S SUPPLEMENTAL RESPONSE AND MOTION IN THE ALTERNATIVE TO COMPEL DISCOVERY l

On April 22, 1988 Applicant filed "LILCO's Response to Governments' Objection to Portions of February 29 and April 8 Orders in the Realism Remand and Offer of Proof" ("LILCO Response to Objection"). Therein LILCO requested that the Board dismiss Intervenors' contentions because Intervenors had failtd to offer any evidence which would rebut the presumption in 10 C.F.R. i 50.47(c)(1) that any best-efforts response of non-participating governments will be based upon an approved utility plan.

Subsequently, on May 2,

1988, LILCO supplemented its response to Intervenors' Objections and offer of proof and renewed its request that I

the Board dismiss Intervenors' realism contentions and, alternatively, requested that that the Board issue an order corrpelling further discovery.

Suppler.ent to LILCO's Response to Governments' April 13 Objection and Motion in the alternative to Compel Discovery, May 2,1988 ("Supplement")

at 1-2.

As grounds for its discovery and renewed dismissal motions, LILCO states that Intervenors' interrogatory responses and conduct during recent depositions of Intervenors' witnesses show they seek to obstruct LILC0's g5D60027 880513

)(t)q g

ADOCK 05000322 PDR

4 Y

t l t

i attempts to discover the nature of their best-efforts response pursuant to l

the Board's rulings of February 29 and April 8,1988,1! Supplement at 2, f

33-37.

LILCO states that Intervenors:

(1) unilaterally endeo the depositions of two key witnesses (Halpin and Axelrod) on State and County best-efforts respense; 2/ (2) obstructed LILC0 questioning of Halpin and Axelrod with repeated objections by counsel and unresponsive answers by the two witnesses; (3) preerrptorily ended the depositions of Messrs. Petione, Roberts, Papile, Czech, and Baranski without LILCO's consent; (4) defied the Beard Order compelling the deposition of the Suffolk County Commissioner of Health Services and Director of Emergency Preparedness; and (5) objected to virtually all of LILCO's written inter-rogatories.

Id. at 3-4, 6 33.

For the reasons set forth below, the Staff supports LILCO's motion. 3/

i t

.i l

1/

Confirmatory Memorandun and Order (Ruling on LILCO's Motions for Summary Disposition of Contentions 1, 2, 4, 5, 6, 7, 8 and 10, and l

~

8 card Guidance on Issues for Litigation, February 28, 1988 (February 29 Order); Penorandum (Extension of Board's Ruling and Op(inion on LILCO Summary Disposition Motions of Legal Authority Realism)

Cententions and Guidance to Parties on New Rule 10 C.F.R.

I 50.47(c)(1 LBP-88-9, 27 NRC (April 8,

1988) ("April 8 Memorandum"))),

2

[

}

-2/

During the Prehearing Conference held May 10, 1988, the Board granted LILCO's motion to correl further depositiers of these two witnesses and ruled that the information concerning civil defense plans and energency plans for nuclear facilities other than Shoreham were j

relevant. Tr. 19380-8?.

i 3/

The Staff often does r.ot take a position in discovery disputes j

between Applicant end Intervenors, however, the discovery LILC0 seeks

~

to coepel is consistent with the Board's guidelines for litigation i

concerning the nature and timetiness of the nonparticipating governments best efforts response eder the realism rule,10 C.F.R.

i 50.47(c)(1).

See February 29 Order at 4; April 8 Memorandum J

at 15 - 24.

i i

l I

i

7_______

DISCUSSION Because the Staff has already filed its response in support of LILCO's request for dismissal of Intervenors' cententions, the Staff limits this response to the new ratters raised by LILCO's Supplement, namely whether the interrogatory responses and deposition events further support LILCO's request for dismissal, or alternatively, provide a basis for a rotion to corr.pel agains+ intervenors.

Under 10 C.F.R.

s 2.707, an intervenor r$ay be dismissed froma proceeding for its failure to comply with discovery orders.

E.g.,

Northern States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 !!RC 1298 (1977); Offshore Power Systenis (Marufacturing License for Floating Nuclear Power Plants), LEP-75-67, 2 NRC 813 (1975).

Similarly, the refusal of e party to rake its witnesses evailable for prehearing examinations is an abandonment of the right to present such witnesses' testircry at hearing.

Shoreham, LBP-82-115,16 NRC 1923,1935 (1982).

The Connission's guidance regarding sarctions in NRC proceedings is found in its Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8,13 KRC 452, 454 (1981), which states in relevant part:

Fairness to all involved in NRC's adjudicatory procedures requires that every participant f ulfill the obligations imposed by and in accordance with applicable law and Comission regulations... When a participant fails to meet its obligaticns, a board should consider the imposition of sanctions against the offending party.

A spectrum of sarctions from minor to severe is available to the boards to assist ir, the managecent of proceedings.

For example, the boards could warn the offending party that such ccr. duct will not be tolerated in the future, refuse to consider a filirg by the offending party, deny +.he right to cross-exemine or present evidence, dismiss one or eore of the party's contentions, impose appropriate sancticns on ecunsel for a party, or, in severe cases, disniiss the party from the proceeding.

In selectino e sanction, boards should consider the relative importance of the u r.n.e t obligation, its potential for harm to other parties or the orderly conduct of the preceeding, whether its occurrence is an isolated incident or a part of a pattern of behavior, the importance of the safety or enviorrmMtal 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 cbligations and bring about improved future compliance.

At an early stue in the proceeding, a board should make all parties aware of the Comissicn's policies in this regard.

The Appeal Board has urged that the sanction of dismissal be reserved for the test severe instances of where a party has failed to meet its obligations.

Commonwealth Edison Co.

(Byron Nuclear Pcwer Station, Units 1 and 2), ALAB-678, 15 NRC 1400, 1416 (1982).

The Appeal Board has further explained that pursuant to the principles in CLI-81-8, boards should evaluate an offending party's conduct in tenns of three questions:

(1) what obligations were imposed by board orders; (?) did the offending party fail to treet any of its obligations; and (3) if so, what sanction is

~

appropriate.

I_d. at 1411.

Intervenors' refusal to reveal the nature of the State and County's projected response to a radiolegical emergency at Shereham, or even the resources aveilable for, and the timing cf. such response, warrants dismissal under the tests outlined in CLI-B1-8 and Byron.

The nature of Intervencrs' best-efforts response is the central issue in the upcoming realism hearing and Intervenors were specificelly directed to make an a f firmative showing as to their projected emergency respcnse efforts.

February 29 Order at 2-4 The withholding of such information is contrary to the obligations cf a party under the Comission's realism rule and threatens the orderly conduct of the proceeding since Intervenors' failure to disclose the nature and timing of their best-efforts respense stifles I

i 5-the Board's inquiry under the realism rule.

Intervenors' repeated assertions that they are legally barred from pursuing emergency planning for Shoreham and that operatinn of Shoreham is "speculative," or a County or State emergency response is "speculative" since no Shoreham-specific plan exists, are all part of a pattern of behavior to withhold facts pertinent tc the inquiry under the realism ruit. O It can hardly be doubted that the State and County know the resources they would apply in the event of a radiological emergency, and th'e nature other emergency plans for nonradiological events.

While Intervenors' activities tray be prompted by aggressive attempts to promote their contentions and general concerns regarding the feasibility end adequacy of energency planning for Shoreham, the circur' stances of this proceeding warrant the severe sanction of dismissal.

Intervenors' obstructionist discovery tactics, their failure to offer an affirmative showing regarding State a r.d County responses to an radiolepical emergency at Shoreham, their disregard of Board diseckery and evidentiary rulings, conbtned with the default previsions centained in the Board's February 29 Order (at 4), taken together, warrant dismissal of Intervenors' contentions, i

Shculd the Board detemine that Intervenors' actions do not warrant dismissal, the Staff supports LILCO's motion to ccmpel discovery.

-4/

For example, despite the pendency of this realism preceedirg since the issuance of CLI-86-13 in July 1966. Intervenors once urged this Eoard to exter.d the discovery period because "the Governnents had not yet decided upon er designated any witnesses on the realism issues, i

or decided whether witnesses will be designated."

Gcvernments' Potion for Extension of Time to Respond to Pealism Discovery Pequests, er.d lo Extend Discovery Schedule, April 6,

19FP, at 5 L

e e

Pur suant to 10 C.F.R.

I 2.740(f), motions to compel discovery must set

{

forth the nature of the request or questions contained in interrogatories, the responses or objections of the party upon whom the request was served, and provide arguments in suprart of the motion.

Under this regulation, a presiding officer is to treat evasive or incomplete answers or responses as a failure to answer or respond.

E.g.,_Hous_to_n_ Light &powerCo.(South Texas Project, Units 1 and 2), LBP-79-5, 9 NRC 193 194-95 (1079).

LILCO's motion to compel comports with the requirements of section 2.740(f) and is amply supported by exerpts fror depositions and interrogatory responses.

Thus, the requested rotion to compel depositions and interrogatory responses should be granted.

!!I. CONCLUSION For the reascns stated above, the Staff supports Applicant's renewed motion for dismissal and Applicant's alternative motion to compel di scovt.ry.

Respectfully submitted.

Mitzi A. Young Counsel for EC Staff Dated at Rockville. Maryland this 13th day of May, 1966

l l 1 i

D%Qf i

UNITED STATES OF AMERIC A N U CLEA P REG UL ATOR Y COMMISSM NN gg p4 59 l

4 B E F O R E T H E A T OLI_C S A F E T Y A N D LIC E Nh)(6 0,, R 7

i In the Matter of l

LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-3 l

(Emergency Planning)

[

(Shoreham Nuclear Power Station, Unit 1) 7 I

C E R TIFIC A T E O F SE R VIC E_

t i

! hereby certify that copies of "MRC STAFF

RESPONSE

TO LIL C O'S f

SUPPLEMENT AL

RESPONSE

AND MOTION IN THE AL T E R N A TIVE TO l

l COMPEL DIS C O V E R Y" in the a bove-ca ptioned proceeding have been i

served on the following by deposit in the United States mail, first class l

^

or, as indicated by an asterisk, through deposit in the Nuclear Regulatory l

Commission's internal mail system, this 13th day of May 1988.

I I

Jan:es P. Gleason, Chairman

• Jerry R. Kline*

[

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board i

U.S. Nuclear Pegulatory Con: mission U.S. Nuclear Fegulatory Commission i

Washington, DC 20555 Washington, D C 20555 l

I Frederick J. Shon*

Jonathan D. Feinberg, Esq.

Adninistrative Judge New York State Department of l

Atomic Safety and Licensing Public Service i

i Board Three Empire State Plaza U.S. Nuclear Regulatory Commission Albany, N Y 12223 j

Washington, DC 20555 I

I Joel Blau, Esq.

Fabian G. Palomino, Esq.

l i

1 Director, Utility In+>rvention Special Ccunsel to the Governor i

Suite 1C20 Executive Chamber 99 Washington Avenue State Capitol j

Albany, N Y 12210 Albany, N Y 12224 L

I I

I

~

f 1

(

I 2

[

o r

Philip McIntire W. Taylor Reveley !!!, Esq.

I Federal Emergency Management Donala P. Irwin, Esq.

Agency Hunton & Williams 26 Federal Plaza 707 East Main Street j

Roor 1349 P.O. Box 1535-t New York, NY 10278 Richmond, Y A 23212 Stephen B. Latham, Esq.

Ferbert H. Brown, Esq.

Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.

t Attorneys at Law Karla J. Letsche, Esq.

33 West Second Street Kirkpatrick & Lockhart j

Riverhead NY 11901 South Lobby - 9th Floor t

1800 M Street, NW

[

Atomic Safety and Licensing Washing, ton, D C 20036-5891 Board Panel

• j U.S. Nuclear Regulatory Con' mission Jay Dunkleberger Washington, D C 20555 New York State Energy Office Agency Buf1 ding 2 Atomic Safety and Licensing Empire State Plaza Appeal Board Panel

• Albany, N Y 12223 U.S. Nuclear Regulatory Con. mission i

Washington, D C 20555 Spence W. Perry, Esq.

i Martin Bradley Ashare, Eso.

General Counsel

}

Suffclk County Attorney Federal Emergency Management M. Lee Dennison Building Agency Veteran's Pemorial Highway 500 C Street, SW Hauppauge, N Y 11788 Washington, DC 2C472 Anthony F. Earley, Jr.

Alfred L hardelli, Esq.

hew York State Department of Law General Counsel 120 Broadway Long Island Light Company i

Room 3-118 175 East Old Country F. cad New York, NY 10271 Hicksville, N Y 11801 l

Dr. Monroe Schneider Ms. Nora Bredes North Shore Committee Shoreham Oppenents Coalition P.O. Box 231 195 East Main Street Wading River, NY 11792 Smithtown, N Y 11787 William R. C u m min g, E s o.

Parbara Newman f

Office of General Counsel Director, Environmental Health i

Federal Emergency Panagement Agency Coalition for Safe Living 500 C Street, SW Box 944 i

Washington, D C 20472 Huntington, New York 11743 l

i i

[

i i

i

. Dr. Robert Hoffman Docketing and Service Section*

Long Island Coalition 11r Safe Office of the Secretary Living U.S. Nuclear Regulatory Commission P.O. Box 1355 Washington, D C 20555 Massapequa, NY 11758 Dr. W. Reed Johnson 115 Falcon Drive, Colthurst Charlottesville, V A 22901 F

Mitzi Q. Young CounseT for N R C Staff t'

i

%