ML20196B148
| ML20196B148 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/15/1988 |
| From: | Lisa Clark, Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#288-6599 OL-3, NUDOCS 8806300200 | |
| Download: ML20196B148 (16) | |
Text
y OV? o 06/15/88 4
0 StYd/c UNITED STATES OF AMERICA NULLEAR REGULATORY COMMISSION jg A"123 P4 :27 (rrn , . .
BEFORE THE ATOM 1" SAFETY AND LICENSING BOARD *-
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In the Matter of LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3 (Shoreham Nuclear Power Station, Unit 1) )
NRC STAFF COMMENTS ON THE PROPOSED IMPOSITION OF SANCTIONS ON INTERVENORS F0'l FAILURE TO COMPLY WITH DISCOVERY ORDFRS During a conference call on June 10, 1988, the Licensing Board in the above-captioned proceeding, ruled that it would impose sanctions on the Fev York State and Suffolk County (Intervenors) because of their failure to comply with various discovery orders issued by the Board.
Specifically, the Board construed Intervenors' filing of June 9,1988 1/
as a refusal to proceed with Board-ordered discovery on realism issues and stated that it would (1) dismiss the realism /best efforts contentions (either with or without prejudice) or (2) find Intervenors in default and rule in LILCO's favor on the realism /best efforts contentions. Tr. 20862.
The Board also stated it would retain jurisdiction over discovery on issues concerning the recently produced Suffolk County Emergency Plan and asked the parties to submit filings on the proposed sanctions by June 15, 1988. _I d .
-1/ Governments' Notice That The Board Has Precluded Continuation Of The CLI-86-13 Remand, June 9, 1988 ("Intervenors' Notice").
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Intervenors' steadfast refusal to proceed with Board-ordered depositions or to permit "any inquiry whatsoever" (Governments' Notice at5) into Intervenors' best efforts responses in the event of a radiological emergency at Shoreham and the resources and pla':s under which such response might be made constitutes defiance of Comission orders and is the latest in a series of attempts to obstruct the orderly progress of this proceeding. Consequently, the Staff is of the opinion that the Intervenors' repeated refusal to comply with Board discovery orders warrants dismissal of the realism /best efforts contentions (Contentions 1-2, 4-8 and 10), with prejudice, on procedural grounds.
II. DISCUSSION Intervenors' repeated failure to provide responsive interrogatory responses, to make State and County officials available for depositions, or to permit an unobstructed inquiry into relevant issues where deposi-tions were held, is evidence of a pattern of conduct to conceal relevant information concerning the realism /best efforts issue as defined by the Board's rulings of February 29 and April 8, 1988. 2./ From the outset, the Intervenors have obstructed meaningful discovery on the realism contentions by refusing to provide any information on how they would l
2_/ Confirmatory Memorandum and Order (Ruling on LILCO's Motions for Summary Disposition of Contentions 1, 2, 4, 5, 6, 7, 8, and 10, and Board Guidance on Issues for Litigation), February 28, 1988 (February 29 Order);
LILCO Memorandum Summary (Extension Disposition Motions ofof Board's Legal Ruling Authorityand Op(inion Realism) on l
. Contentions and Guidance to Parties on New Rule 10 C.F.R. <
l 950.47(c)(1)), LBP-88-9, 27 NRC (April 8, 1988) ("April 8 Memorandum"),
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respond in the event of a radiological emergency at Shoreham. Not only have they refused to specify their best effort response or interface under the LILC0 Plan, they have also refused to he forthcoming as to the resources available for a radiological emergency response or the existence of other plans which could be used for radiological emergencies. As early as April 13, they expressed their intention not to comply with Board Orders interpreting the realism rule. See Governments' Objection to Portions cf February 29 and April 8 Orders in the Realism Remand and Offer of Proof, April 13, 1988 ("Objection"). 3_/ For example, contrary to the Board's February 29 Order and April 8 Memorandum, Intervenors stated that while their response to an emergency at Shoreham would be g hoc they would not specify the resources available for their response, the actions they would take, or the time such actions would entail. I_d. at 9, 14-16, 41-45.
During the course of this proceeding, Intervenors have:
(1) unilaterally ended the depositions of two key witnesses (Halpin and
~3/ On April 22, 1988, Applicant filed "LILC0's Response to Governments' Obiection to Portions of February 29 and April 8 Orders in the
, Pealism Remand and Offer of Proof" and asked that the Board dismiss l Intervenors' contentions because Intervenors had failed to offer any evidence which would rebut the presumption in 10 C.F.R. 0 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, LILC0 supplemented its response to Intervenors' objections offer of proof and renewed its request for dismissal of Intervenors' realism contentions and, alternatively, asked that the Board issue an order compelling further discovery. Supplement to LILC0's Response to Governments' April 13 Objection and Motion in the Alternative to Compel Discovery, May 2,1988 ("LILCO Supplement") at 1-2.
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- l Axelrod) on State and County best-efforts response; SI (2) obstructed LILC0 questioning of Halpin and Axelrod with repeated objections by counsel and unresponsive answers by the two witnesses; (3) preemptorily ended the depositions of Messrs. Petione, Roberts, Papile, Czech, and Baranski; (4) defied the Board Order compelling the deposition of the Suffolk County Commissioner of Health Services and Director of Emergency Preparedness; and (5) objected to virtually all of LILC0's written inter-rogatories. See LILC0 Supplement at 3 4, 6-33.
Intervenors have not taken the orders of NRC adjudicatory boards seriously. This Board's orders concerning the scope of discovery and compelling Intervenors to produce witnesses for depositions or to respond fully to interrogatories El have met with limited success. 5/ Although the Board ruled on May 26 that its inquiry is limited to interface, best efforts responses to the LILC0 Plan and the Board and Commission's questions concerning the resources available and timing of such responses (Tr.20433-34), the Bnard has also emphasized that the discovery it has
-4/ During the Prehearing Conference held May 10, 1988, the Board granted LILCO's motion to compel further depositions of these two witnesses and ruled that the information concerning civil defense plans and emergency plans for nuclear facilities other than Shoreham were relevant. Tr. 19380-82.
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Incomplete or evasive answers are to be treated as a failure to respond. 10 C.F.R. G 2.740(f). J.
E ., Houston Light & Power Co.
(South Texas Project, Units 1 and 2), LBP-79-5, 9 NRC 193, 194-95 (1979).
-6/ Confirmatory Memorandum and Order, April 12, 1988; Confirmatory Memorandum and Order, April 18, 1988; Tr. 20432-35 (May 26, 1988 rulings on motions to dismiss and a motion to compel discovery);
Tr. 20549-50 (May 27, 1988 ruling grantina discovery regarding the Suffolk County Emergency Operations Plan [; Tr. 20860 (reaffirming prior discovery order).
authorized is broader than the interface issue. Tr. 20862; see Tr. 20549-50.
Despite the Board rulings of May 26 and 27, 1988 (Tr. 20434, 20549-50) which granted LILC0's discovery requests, Intervenors continue to refuse to provide any additional information. In their latest filing voicing their refusal to comply with Board discovery orders, Intervenors state that they: would never use LILC0's plan; never work cooperatively or "interface" with LILC0; never give LILC0 permission to act on their behalf; would not give LILC0 authority to act on their behalf; would not adopt or implement any plan for Shoreham; have no plans which they would follow in a Shoreham emergency; and would respond to a Shoreham accident on the basis of what they judge to be best for their citizens at the time of the emergency without reference to LILC0 or the LILC0 plan. Inter-venors' Notice at 3. Further, by refusing to make available any witnesses other than those they designate (i.e., Mr. Halpin and Dr. Axelrod), Inter-venors have prevented LILC0 from discoveririg what plans and resources are available which could be used for best efforts responses in the event of anradiologicalemergencyatShoreham.1/
Pursuant to 10 C.F.R. s 2.718, the presiding officer possesses both the duty and the power to maintain order, to take appropriate action to avoid delay, and to regulate the course of the hearing and the conduct of Z/ For example, Intervenors have refused to make disaster preparedness and communications officials available for depositions, and have refused to produce other emergency plans for Brookhaven accidents or transportation or other accidents involving hazardeus materials.
the participants. Under 10 C.F.R. 9 2.707, an interveror may be dismissed frem a proceeding for its failure to comply with discovery orders. E.g.,
Northern States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298 (1977); Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813 (1975). Similarly, the refusal of a party to make its witnesses available for prehearing examinations is an abandonment of the right to present such witnesses' testimony at hearing. Shoreham, LBP-82-115, 16 NRC 1923, 1935 (1982).
The Commission's guidance regarding sanctions in NRC proceedings is found in its Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981), which states in relevant part:
Fairness to all involved in NRC's adjudicatory procedures requires that every participant fulfill the obligations irposed by and in accordance with applicable law and Commission regulations . . . Nhen a participant fails to meet its oblirations, a board should consider the imposition of sanctions against the offending party. A spectrum of sanctions froit minor to severe is available to the boards to assist in ths: management of proceedings. For example, the boards could warn the offending party that such conduct will not be toir. rated in the future, refuse to consider a filing by the Mfending party, deny the right to cross-examine or present evidence, dismiss one or more of the party's contentions, impose appropriate sanctions en 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 occurrence is an isolated incident or a part of a pattern of behavior, the importance of the safety or enviornmental 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 nake all parties aware of the Commission's policies in this regard.
l The Appeal Board has indicated that the sanction of dismissal of a l
l party be reserved for the most severe instances of where a party has
failed to meet its obligations. Commonvealth Edison Co. (Byron Nuclear Power 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 corduct in terms of three questions: (1)what obligations were imposed by board orders; (2) did the offending party fail to freet any of its obligations; and (3) if so, what sanction is appropriate. M.at1411. The Appeal Board concluded that the intervenor's wrongful failure to comply with discovery warranted the dismissal of all those contentions which could not be litigated without unjustifiably delaying the proceeding. M. at 1419-20.
Intervenors' refusal to reveal the nature of the State and County's projected response to a radiological emergency at Shoreham, or even the resources available for, and the timing of, such response, werrants dismissal under the tests outlined in CLI-81-8 and Byron. The nature of Intervenors' best-efforts response is the central issue in this reelism proceeding and Intervenors were specifically directed to make an af firmative showing as to their projected emergency response efforts.
February 29 Order at 2-4; April 8 Memorandum at 24-25. In addition, the Licensing Board clearly stated that the failure of Intervenors to go forward with evidence (i.e., present a "positive case") on the best efforts issue could result in a finding of default. February 29 Order l
at 4; April 8 Merrorandum at 25.
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The withholding of information cencerning best efforts responses, including the evailablity of resources or other plans for such responses,
I is contrary to the obligations of a carty under the Commission's realism rule and has already disrupted the conduct of this proceeding by prolonging discovery and delaying the hearings that were scheduled to proceed this month. Such withholding stifles the Board's ability to judge the adequacy of the LILC0 Plan in light of the projected best efforts responses of Intervenors. Intervenors' earlier assertions that they are legally barred from pursuing emergency planning for Shoreham or working LILC0 in an emergency (e.g., Objection at42-45), that they cannot speculate as to their ad hoc response to a Shoreham emergency, 8_/ are all part of a pattern of behavior to withhold facts pertinent to the inquiry under the realism rule.
This pattern continues with Counsel for Intervenors assertion that Intervenors are "categorically" precluded from providing testimony either in a deposition or at hearing as to nature of their best efforts response.
E.g., Brown, Tr. 20854-55. E/ This argurrent must be rejected because the Commission, not Intervenors, has the duty to determine whether an emer-gency response is sufficient under 10 C.F.R. G 50.47. Just as the Inter-venors cculd not prohibit an emergency exercise designed to test an emergency response plan, they cannot prohibit an inquiry into the question
-8/ Governrents' Response to LILCO's April 22, 1988 Request for Dismissal of the Legal Authority Contentions, May 2,1988, at 4.
9/ For exanple, despite the pendency of this realism proceeding since the issuance of CLI-86-13 in July 1986, Intervenors once urged this Board to extend the discovery period because "the Governments had not yet decided upon or designated any witnesses on the realism issues, or decided whether witnesses will be designated." Governments' Motion for Extension of Time to Respond to Realism Discovery Requests, and To Extend Discovery Schedule, April 6, 1988, at 5.
of whether Intervenors have resources and plans for other emergencies which would provide protection of the public health an safety during a radiological emergency. See Long Island Lighting Co. v. Suffolk County, NY, 628 F. Supp 654, 665-66 (E.D.N.Y.1986); Shoreham, CLI-86-14, 24 NRC 36, 40-41 (1986). County resolutions cannot prevent this Comission from conducting an inquiry. Moreover, it can hardly be doubted that the State and County know the resources they would apply in the event of a radio-logical emergency, and the nature of emergency plans for other radiologi-cal and nonradiological events. This is particularly true since the recent advent of the Suffolk County Emergency Operations Plan. Letter from L. Lanpher to D. Sisk, dated May 25, 1988.
The behavior of the Intervenors in this instance is similar to that evidenced in Phase I of the Shoreham proceeding and requires the same response. During that part of the proceeding, Intervenors' refusal to comply with an order requiring public prehearing depositions on emergency planning issues was found to constitute default and their emergency planning contentions were dismissed. Lono Island Lighting Company (Shereham Nuclear Power Station, Unit 1), LBP-82-115, 16 NRC 1923, 1925-28 (1982), aff'd, ALAB-788, 20 NRC 1102 (1984). In determining the appro-priate sanction for the failure of Intervenors to comply with its order, the board applied the Appeal Board's test stated in Byron, ALAB-678,15 NRC at 1416-20, derived from the Comission's policy statement in CLI-81-8.
In its decision, the board observed that the unmet obligation was extremely important to the pace of the proceeding and to the procedural due process rights of the other parties. Shoreham, 16 NRC at 1929.
Noting that the most critical impact of the Intervenors' decision not to comply with its order would be on the orderly conduct of the adjudicatory proceeding, the board declared that a party may not be allowed to ignore a direct order even if it believes the order to be premised on an erroneous legal interpretation. M. at 1930. Thus, the board concluded that sanctions were necessary to regulate the course of the proceeding and to induce future compliance with its orders. Ld. at 1931. On appeal, the Appeal Board found that the action of the licensing board was "unassailable." ALAB-788, 20 NRC at 1178.
As in the Phase I proceeding, the obligation with which the Intervenors are refusing to comply is extremely important to the orderly course of the adjudicatory process. The Board has made it clear that in the realism proceedings Intervenors are obligated to present positive statements about their plans for responding to an emergency at Shoreham if they clain that they will not use that of the utility, the resources available for a response and the time factors involved for proposed emergency activities. April 8 Menorandum at 24-25. Indeed, the Bvard has stated that any interpretation of the rule which permitted any state or local government to successfully demonstrate a continuing non-participatory role would deprive the proceeding of any meaningful purpose.
[d. at 20. Thus, the refusal cf the Intervenors to present any positive evidence on how they would respond to an emergency at Shoreham has effectively precluded the Board from developing a record on which it may decide the contentions at issue.
Py refusing to comply with the Board's discovery order in this case, Intervenors are also continuing a pattern of behavior which was first
evidenced in the Phase I proceeding. They have simply chosen to refuse to comply with orders of the Board which they believe are based on erroneous legal interpretations. Such behavior is inappropriate in these proceedings and warrants severe sanctions. As the Appeal Board observed in Northern Indiana Public Service Company (Bailly Generating Station, Fuclear-1)ALAB-224,8AEC244,251(1974):
American jurisprudence has long passed the point where a party--particularly one represented by experienced counsel--may refuse to participate in a case because the presiding official ruled in a manner it did not like. There are appropriate ways of preserving objections to such rulings; going home is not one of them. A party may not be heard to complain that its rights were unjustly abridged after '[hjaving thus purposefully refused to participate.'
(citationsommitted).
/s for the importance of the safety issue presented, Intervenors have not provided enough information at this stage of me proceeding to determine whether pursuit of the realism contentions would raise any substantial cuestions about the feasibility of the LILC0 plan with the "best effort" response of the state and local governments. Finally, the circumstances of this case clearly dictate that the sanction of dismissal of the realism contentions should be imposed. Intervenors have persistently and willfully endeavored to defy Board orders and in doing so have refused to provide information essential to the proper disposition of their contentions. Accordingly, the Board should dismiss those contentions with prejudice.
In sum, the circumstances of this proceeding warrant dismissal of the subject contentions. Intervenors' obstructionist discovery tactics, their failure to offer an affirmative showing reoarding State and County
, responses to an radiological emergency at Shoreham, their disregard of
Board discovery and evidentiary rulings, combined with the default provisions contained in the Board's February 29 Order (at 4), taken together, warrant dismissal of Intervenors' contentions. Intervenors' actions have disrupted the course of this proceeding and have prejudiced LILCO's attempts to obtain its license under 10 C.F.R. 650.47(c).
Dismissal of the contentions with prejudice is appropriate since Inter-venors' actions, although puportedly based upon an interpretation of the proper exercise of their sovereign powers (see in tervesiv, o ' ., n k e
at 2-5), result from a willful attempt to defy Board orders and to prevent orderly inquiry into the nature of their best efforts response. EI Under these circumstances, dismissal would be appropriate. N/
-10/ Intervenors ' persistent attempts to circumvent a detailed inquiry into the nature, resources or timing of a best efforts response by the State and County or their interface with LILCO are apparently designed to prevent the parties from probing Intervenors' general assertions that (a) or Shoreham accident the(b)y have no plan whichdetails wouldregarding in a be used their they cannot provide ad hoc response in advanca of an actual accident. Such concealment of evidence within their control generally ccnstitutes a failure to prosecute their contentions or, at minimum, gives rise to a presumption that the information they seek to conceal is adverse to their case. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-471, 7 NRC 477, 498 (1978), citing, International Union (UAW) v. NLRB, 459 F.2d 1329, 1336 (D.C.
Cir. 1972).
I 11/ The Board also proposed to find Intervenors in default and rule in LILC0's favor on the realism contentions. The Staff believes that since Intervenors' failure to comply with discovery orders can be disposed of on procedural grounds, it is not necessary for the Board to reach the merits of the contentions.
III. CONCLUSION For the reasons stated above, the Staff believes that dismissal of the realism Contentions (Contentions 1-2, 4-8 and 10), with prejudice, is appropriate.
Respectfully submitted, Mit i . Young +k Counsel for NRC Staff bd Lisa B. Clark Counsel for NRC Staff Dated at Rockville, Maryland this 15th day of June, 1988 A
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' COLKETED 35NRC UNITED ST ATES OF AMERIC A NUCLEAR REGUL ATORY COMMISSION '88 WN 23 F a :27 BEFORE THE ATOMIC SAFETY AND LICENSIhG BMkObrNiN GRANCH In the Matter of LONG ISL AND LIGHTING COMP ANY ) Docket No. 50-322-0 L-3 (Shoreham Nuclear Power Station, Unit 1) )
CERTIFIC ATE OF SERVICE I hereby certify that copies of "NRC STAFF COMMENTS ON THE PROPOSED IMPOSITION OF S A N C TIO NS ON INTERVENORS FOR F AIL U R E TO COMPLY WITH DIS C O V E R Y O R DE RS" in the above-captioned proceeding have been served on the following by deposit in the United States m ail, first class or, as indicated by an asterisk, through deposit in the Nuclear Reg ulatory Commission's internal mail system or, as indicated by double asterisks, by hand, this 15th day of June 1988.
James P. Gleason, Chairman ** Jerry R . Kline**
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Pegulatory Commission Washington, DC 20555 Washington, D C 20555 Frederick J. Shon** Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Public Service Board Three Empire State Plaza U.S. Nuclear Regulatory Commission Albany, N Y 12223 Washington, D C 20555 Joel Blau , Esq. Fabian G. Palomino, Esq.
Director, Utility Intervention Special Counsel to the Governor Suite 1020 Executive Chamber 99 Washington Avenue State Capitol Albany, N Y 12210 Albany, N Y 12224 l
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Philip McIntire W. Taylor Reveley III, Esq. !
Federal Emergency Management Donald P. Irwin, Esq. I A gency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 l New York, N Y 10278 Richmond, V A 23212 ;
Stephen B. Latham, Esq. Herbert H. Brown, Esq.
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq. i Attorneys at Law V.arla J. Letsche. Esq. l 33 West Second Street Kirkpatrick & Lockhart Riverhead, N Y 11901 South Lobby - 9th Floor 1800 M Street, N W Atomic Safety and Licensing Washington, D C 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, D C 20555 New York State Energy Office Agency Building 2 Atomic Safety and Licensing Empire State Plaza Appeal Board Panel
- Albany, N Y 12223 U.S. Nuclear Regulatory Commissior Washington, D C 20555 Spence W. Perry, Esq.
Martin Bradley Ashare, Esq. General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, N Y 11788 Washington, D C 20472 Anthony F. Earley, Jr. Alfred L. Nardelli, Esq.
New York State Department of Law General Counsel 120 Broadway Long Island Light Company Room 3-118 175 East Old Country P.oad New York, N Y 10271 Hicksville, N Y 11801 Dr. Monroe Schneider Ms. Nora Bredes North Shore Committee Shoreham Opponents Coalition P.O. Box 231 195 East Main Street Wading River, N Y 11792 Smithtown, N Y 11787 William R . C u m min g , Es q . Barbara Newman
! Office of General Counsel Director Environmental Health Federal Emergency Management Agency Coalition for Safe Living 500 C Street, SW Box 944 Washington, D C 20472 Huntington, New York 11743 i
' Dr. _ Robert Hoffman Dccketing and Service Section*
. Long Island Coalition for 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 "Mittil A.rYoung '
F CounWor N R C Staff r
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