ML20214M783

Response Supporting Applicant 860820 Motion for Sanctions Directed to Nine Cities & Towns Participating in Proceeding as Interested Municipalities Failing to Comply W/Or Seek Relief from ASLB 860624 Order.Certificate of Svc Encl

ML20214M783
Person / Time
Site:	Seabrook
Issue date:	09/09/1986
From:	Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#386-647 OL, NUDOCS 8609110279
Download: ML20214M783 (9)

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09/09/86 i

7 00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION +86 SEP 10 A11:56 BEFORE TIIE ATOMIC SAFETY AND LICENSINGL GIDXRD . , _ , i >. "

N a '-t Ei%

In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL NEW H.AMPSIIIRE, et al.

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) 50-444 OL

) Off-Site Emergency (Seabrook Station, Units 1 and 2) ) Planning Issues NRC STAFF'S RESPONSE TO APPLICANTS' MOTION FOR SANCTIONS On August 20, 1986, the Applicants filed a motion for sanctions directed to nine cities and towns participating in this proceeding as interested municipalities under 10 C.F.R. I 2.715(c). M In support of their motion, Applicants recite the fact that the nine towns and cities have failed to comply with the Licensing Board's Order of June 24, 1986, or otherwise request relief from that Order, which had directed them to respond to the Applicants' interrogatories of April 28, 1986. In light of this failure to comply with or seek relief from the Board's Order, the Applicants request that t.he nine towns and cities be dismissed from the proceeding.

The NRC Staff (" Staff") hereby files its response to Applicants' motion. For the reasons set forth below, the Staff submits that sanctions i ~1/ The nine cities and towns are: Town of Brentwood, Town of l Seabrook, Town of North Hampton , Town of Salisbury, City of Newburyport, Town of Amesbury, Town of Rye, Town of Newbury, and City of Portsmouth.

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should be imposed against the nine towns and cities for failing to comply with the Board's Order of June 24, 1986. However, the Staff submits that rather than dismissing those entitites from the proceeding, the Board should impose the lesser sanction of precluding them from presenting any direct testimony and/or cross-examining any witnesses who may be proffered by other parties to the proceeding.

DISCUSSION 10 C.F.R. I 2.707 empowers the Licensing Board to impose sanctions j against a party to an NRC proceeding for failure, inter alia, "to comply with any discovery order entered by the presiding officer pursuant to 10 C.F.R. i 2.740", and further provides that:

[T]he presiding officer may make such orders in regard to the failure as are just, including, among others, the following:

(a) Without further notice, find the facts as to the matters regarding which the order was made in accordance with the claim of the party obtaining the order, and enter such order as may be appropriate; or (b) Proceed withop further notice to take proof on the issues specified 2/ In addition,10 C.F.R. 5 2.718 provides:

A presiding officer has the duty to conduct a fair and impartial hearing according to law, to take appropriate i

action to avoid delay, and to maintain order. He has all powers necessary to those ends, including the power to:

i (e) 5tegulate the course of the hearing and the conduct i of the participants. ...

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1 Where a party fails to comply with a Licensing Board's order, the Board has the authority to dismiss that party from the proceeeding. See, eg, Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1),

ALAB-719, 17 NRC 387 (1983), ap LBP-82-108, 16 NRC 1811 (1982).

However, as noted by the Appeal Board in Point Beach, "[d]ismissal of a party is a serious step that generally should be reserved for 'the most severe failure of a participant to meet its obligations.'" Id. ,17 NRC at 392, citing Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678,15 NRC 1400,1416 (1982).

In this regard, the Commission has issued a policy statement which

" requires that a board consider all the circumstances in determining whether dismissal is warranted." Id., citing Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8,13 NRC 452 (1981). In its policy statement, the Commission stated as follows (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 applicable

~;O la.w and Commission regulations. . . . When a parti-cipant 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 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)

(m) Take any other action cor.sistent with the Act, this chapter, and sections 551-558 of Title 5 of the United States Code.

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3 party's contentions, impose appropriate sanctions on 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 l 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 environ-mental concerns raised by the party, and all of the circumstances.

In the instant case, the Staff submits that the failure of the nine 3

towns and cities to comply with the Board's Order of June 24, 1986, requires that sanctions be imposed. The Board must be able to regulate the course of the proceeding, as contemplated by 10 C.F.R. 52.718(e),

and should not permit its Orders to be ignored by any of the participants in the proceeding. Close regulation of the proceeding is particularly important here, given the complexity of the Seabrook proceeding and the great number of parties and participants in the proceeding.

To our mind, the only question that requires serious consideration is whether the sanction of dismissal, requested by the Applicants, is appropriate. In this regard, the Licensing Board should follow the

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approach suggested in the Commission's policy statement, of considering the harm caused by the conduct at issue and whether other sanctions might be available to redress that harm. In addition, the Board may wish to take into consideration the Commission's long-standing policy of favoring the participation of interested states and municipalities in NRC proceedings, even relieving them from the obligation of taking a position on the issues. See 10 C.F.R. I 2.715(c). In our view , careful consideration of these factors leads to the conclusion that a less severe sanction than the dismissal of the towns and cities from the proceeding should be imposed.

. At issue here is the discovery which the Applicants sought from the nine towns and cities. That discovery generally sought to learn whether and to what extent those entitites intend to present direct testimony and/or cross-examine other parties' witnesses in the offsite emergency planning proceeding. Had the towns and cities filed responses to this discovery, those responses might have been of assistance to the Applicants and other parties in preparing for hearings. By contrast, in the absence of any such responses, the Applicants and other parties may be disadvantaged in preparing to addresss the evidence or cross-examination which the nine towns and cities might seek to present during the hearing.

Accordingly, the Staff suggests that another, less severe, sanction is available which may well be sufficient to redress the harm caused by the towns and cities' failure to comply with the Board's Order. Rather than dismissing the nine towns and cities from the proceeding, the Staff suggests that the Board enter an order directing that those entities are E precluded from presenting any direct testimony or cross-examining any witnesses proffered by other parties in this proceeding. In our view, the imposition of this sanction would fairly redress the harm caused by towns and cities' failure to comply with the Board's Order of June 24, 1986, while it would avoid imposing the more severe sanction of dismissal

which the Commission has indicated should be reserved for the "most severe failure of a participant to meet its obligations."

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s CONCLUSION For the reasons set forth above, the Staff submits that the Board should grant Applicants' motion for sanctions against the nine towns and cities named in Applicants' motion, but should impose the lesser sanction of precluding those entitites from presenting direct testimony and/or cross-examining any witnesses who may be proferred by other parties in this proceeding.

Respectfully submitted, V~ f. h e -

Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Bethesda, Maryland this 9th day of September,1986 l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL NEW HAMPSHIRE, et al.

) 50-444 OL

) Off-Site Emergency (Seabrook Station, Units 1 and 2) ) Planning Issues CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPLICANTS' MOTION FOR SANCTIONS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 9th day of September,1986.

Helen Hoyt, Esq. , Chairman

• Dr. Emmeth A. Luebke*

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

.._ Dr. Jerry liarbour* Ms. Carol Sneider, Esq.

J' Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commissicn One Ashburton Place,19th Floor

. Washington, D.C. 20555 Boston, MA 02108 Beverly Hollingworth Stephen E. Merrill 209 Winnacunnet Road Attorney General Hampton, NH 03842 George Dana Bisbee Assistant Attorney General Sandra Gavutis, Chairman Office of the Attorney General Board of Selectmen 25 Capitol Street RFD 1 Box 1154 Concord, NH 03301-6397 Kensington, NH 03827 Richard A. Hampe, Esq.

New Hampshire Civil Defense Agency 107 Pleasant Street Concord, NH 03301 i

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Calvin A. Canney, City Manager Allen Lampert City Hall Civil Defense Director 126 Daniel Street Town of Brentwood Portsmouth, NH 03801 20 Franklin Street Exeter, NH 03833 Roberta C. Pevear State Representative Angie Machiros, Chairman Town of Hampton Falls Board of Selectmen Drinkwater Road 25 High Road

Hampton Falls, NH 03844 Newbury, MA 09150 Mr. Robert J. Harrison Jerard A. Croteau, Constable President and Chief Executive Officer 82 Beach Road, P.O. Box 5501 Public Service Co. of New Hampshire Salisbury, MA 01950 P.O. Box 330 Manchester, NH 03105 Diane Curran, Esq.

Harmon & Weiss Robert A. Backus, Esq. 2001 S Street, N.W.

Backus, Meyer & Solomon Suite 430 116 Lowell Street Washington, D.C. 20009 Manchester, NH 03106 Edward A. Thomas Philip Ahrens, Esq.

Federal Emergency Management Agency Assistant Attorney General 442 J.W. McCormack (POCH) Office of the Attorney General Boston, MA 02109 State House Station, #6 Augusta, ME 04333 H.J. Flynn, Esq. Thomas G. Dignan, Jr. , Esq.

Assistant General Counsel Ropes & Gray Federal Emergency Management Agency 225 Franklin Street 500 C Street, S.W. Boston, MA 02110

_f Washington ,. D . C . 20472 Jane Doughty Atomic Safety and Licensing

. Seacoast Anti-Pollution League Board

• 5 Market Street U.S. Nuclear Regulatory Commission Portsmouth, NH 03801 Washington, D.C. 20555

Atomic Safety and Licensing Paul McEachern, Esq.

Appeal Pr.nel* Matthew T. Brock, Esq.

U.S. Nuclear Regulatory Commission Shaines & McEachern I Washington, D.C. 20555 25 Maplewood Avenue P.O. Box 360 Portsmouth, NH 03801 l

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r 3-Docketing and Service Section* William Armstrong Office of the Secretary Civil Defense Director U.S. Nuclear Regulatory Commission Town of Exeter Washington, D.C. 20555 10 Front Street Exeter, NH 03833 Maynard L. Young, Chairman Board of Selectmen Peter J. Matthews, Mayor 10 Central Road City Hall Rye, NH 03870 Newburyport, MA 09150 Michael Santosuosso, Chairman William S. Lord Board of Selectmen Board of Selectmen South Hampton, NH 03827 Town Hall - Friend Street Amesbury, MA 01913 Mr. Robert Carrigg, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen Board of Selectmen Town Ofnce 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 R.1;. Gad III, Esq. Gary W. Holmes, Esq.

Ropes & Gray Holmes & Ellis 225 Franklin Street 47 Winnacunnet Road Boston, MA 02110 Hampton, NH 03842 Judith II. Mizner, Esq.

Silverglate, Gertner, Baker Fine and Good 88 Broad Street Boston, MA 02110

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, 2-Sherwin E. Turk Senior Supervisory Trial Attorney 1

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