ML20215C212
| ML20215C212 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/07/1986 |
| From: | Hoyt H Atomic Safety and Licensing Board Panel |
| To: | AMESBURY, MA |
| References | |
| CON-#486-1016, CON-$486-1016 82-471-02-OL, 82-471-2-OL, OL, NUDOCS 8610100162 | |
| Download: ML20215C212 (5) | |
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DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COM(ISSION OFFICE 0; Ill A<
ATOMIC SAFETY AND LICENSING BOARD 00 E g g R m Before Administrative Judges:
P' SERVED OCT -81986 E
e Jerry Harbour In the Matter of Docket Nos. 50-443-OL 50-444-OL PUBLIC SERVICE COMPANY (ASLBPNo. 82-471-02-OL) 0F NEW HAMPSHIRE, g al.
(Offsite Emergency Planning)
(Seabrook Station, Units 1 and 2)
)
October 7, 1986 ORDER (Addressing " Town of Amesbury's Objection To The Order of The Board Imposing Saction (9-11-86)")
The Town of Amesbury on September 19, 1986 filed its objection to this Board's order imposing a modified sanction in response to Applicants' motion for sanctions dated August 20, 1986 against nine cities and towns, including the T0A. Amesbury had also filed T0A's Response and Objection to Applicants' Motion for Sanctions and NRC Staff's Response to Applicants' Motion for Sanctions on September 15, 1986 or twenty-six days after Applicants' motion of August 20, 1986 was filed and three days after this Board's order was served on September 12, 1986.
8610100162 861007 PDR ADOCK 05000443 G
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The Board finds that Amesbury's September 15, 1986 filing is improper on two grounds:
(1)
It is clearly outside the period of time prescribed by the Commission Rules of Practice (10 CFR 2.730(c) and 10 CFR 2.710) for answers. By the Board calculations under these rules, T0A's response was due on September 8, 1986; (2) T0A's response was filed three days after the Board's order had been served.
It is obvious that TOA was attemtping to insert a late response clearly outside the period which the rules provide for timely responses.
The Board finds T0A's September 15, 1986 " response" a nullity, since T0A acted in bad faith, i
Attorney General Francis X. Bellotti's Response in Support of Town of Amesbury's Objections To The Order of The Board Imposing Sanction, Dated September 11, 1986 was dated September 29, 1986. This response supports Amesbury and properly casts Amesbury's September 19, 1986
" objection" as in the nature of a Motion for Reconsideration.
Further, Attorney General Bellotti states that Amesbury "did not.
willfully disregard" the Board orders; that the Board's sanction is "an overreaction... harsh and unwarranted" which would require Amesbury to t
respond to " voluminous and burdensome interrogatories."
l Applicants' Reply To Town of Amesbury's Objection To The Order of i
i The Board Imposing Sanctions (9-11-86) dated September 23, 1986 supports the modified sanctions and notes that "to grant to a party the right to i
flaunt the rules of practice and to control the course of the proceeding as it, rather than the Board, sees fit."
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3 The Board notes that Amesbury's motion for protective order dated July 1, 1986 was indeed filed after Applicants had filed its Motion To Compel on May 16, 1986. Town of Amesbury had thus waited to request relief from its obligation to answer the Applicants' interrogatories
)
only after a Motion To Compel had been issued. This Commission's rules of practice in 10 CFR 2.740(f) provide as follows:
(1) If a deponent or party upon whom a request for production of documents or answers to interrogatories is served fails to respond or objects to the request, or any part thereof, or fails to permit submitting inspection as requested, the deposing party or the party (10) days the request may move the presiding officer, within ten after the date of the response or after failure of a party to respond to the request for an order compelling a response or inspection in accordance with-the request.
The Board could not have considered Town of Amesbury's response to Applicants' May 16, 1986 Motion To Compel since we ruled on that motion on June 24.
It was not until July 1, 1986 that Amesbury filed a response and moved for a protective order.1 The party seeking a protective order must make its motion for a l
protective order after the discovery request and within time provided l
l 1
Since much has been said of Town of Amesbury's motion for l
protective order on July 1,1986, the following recap of the times I
should be of some interest:
April 28, 1986 - Applicants' Interrogatories May 16, 1986 - Applicants' Motion To Compel June 24, 1986 - Board Order Compelling Response July 1, 1986 - T0A Response and Motion for protective Order Aug. 20, 1986 - Applicants' Motion For Sanctions Sept.
9, 1986 - NRC Staff Response Sept. 11, 1986 - Board Order Granting Modified Sanctions April 28 - Sept. 11, 1986 = 136 days.
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for an answer as provided for in 10 CFR 2.730(c). If, as in this case, the motion for protective order is filed only after a motion to compel is issued, it is out of time. The Board did not consider the T0A motion since the proceeding had moved passed a timely filing before Amesbury acted on July 1.
To find otherwise would be to vest in a party the right to ignore a discovery request by not responding, or asking for a protective order, wait for a motion to compel and then respond to the discovery request or file for a protective order. The time allowed for filing an answer to a motion would be doubled at the discretion of a party. The Board's reading of the Commission's rules do not require that the Board abdicate its obligation to conduct an orderly proceeding.
While Applicants, the NRC Staff, and this Board did not acknowledge T0A's late filing, there was no obligation for such a pronouncement.
T0A knew when it filed on July 1, 1986 that its response was untimely under any reasonable interpretation of the rules. The Board notes that T0A did not respond or renew its untimely motion when Applicants' Motion for Sanctions was filed on August 20, 1986. As the Board stated in its September 11, 1986 order, we had delayed action in expectation of some responses or request for relief.
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We affirm our order of September 11, 1986 as it applies to T0A.
FOR THE ATOMIC SAFETY AND LICE SING BOARD
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/Vig Helen F. Hoyt, Chairpersqg/
Administrative Judge Dated at Bethesda, Maryland this 7th day of October 1986.
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