ML20215C482
| ML20215C482 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/07/1986 |
| From: | Hoyt H Atomic Safety and Licensing Board Panel |
| To: | RYE, NH |
| References | |
| CON-#483-1014, CON-#486-1014 82-471-02-OL, 82-471-2-OL, OL, NUDOCS 8610100303 | |
| Download: ML20215C482 (6) | |
Text
}J O f '/
A 4
UNITED STATES OF AMERICA uYNc NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD *86 0CT -8 P2:50 Before Administrative Judges:
F Helen F. Hoyt, Chairperson
[0C IIbO Uf f1 Dr. Emmeth A. Luebke BRAlp!
Dr. Jerry Harbour SERvro ner _g tg g In the fiatter of
)
Docket Nos. 50-443-0L
)
50-444-0L PUBLIC SERVICE COMPANY
)
(ASLBPNo. 82-471-02-0L) 0F NEW HAMPSHIRE, et al.
)
(Offsite Emergency Planning)
)
(Seabrook Station, Units 1 and 2)
)
October 7, 1986 ORDER (Addressing Motion for Reconsideration by the Town of Rye of Board Order of Granting Applicants' Motion for Sanctions September 11,1986)
On September 19, 1986 Town of Rye filed its notion for reconsideration of a sanction imposed by Order of this Board dated September 11, 1986. Town of Rye raises objections to the order in four paragraphs. However, Town of Rye fails to set forth grounds on which the Board is to consider any modification.1 By Applicants' Answer To Motion For Reconsideration By The Town of Rye of Board Order Granting Applicants' Motion for Sanctions September 11, 1986, dated September 23, 1986, Applicants oppose Town of 1
The Board specifically finds that the Town of Rye recites arguments but in no part of its motion does the Town of Rye express any understanding that it must comply or indeed does it express any future intent to do so.
8610100303 861007 DR ADOCK 05000443 PDR DS02-
6 2
Rye's motion. Applicants state that Town of Rye does not attempt to justify its wholesale disregard of (1) Applicants' interrogatories, (2) this Board's order compelling discovery, or (3) Rye's failure even to respond to the motion for sanctions.
Rye's statement at page 2 of its September 19, 1986 Motion for Reconsideration by the Town of Rye of Board Order of Granting 2
Applicants' Motion for Sanctions September 11, 1986 draws from this Board's order of March 1,1983 addressing a previous Applicants' Motion To Compel Answers To Interrogatories.
In that order the Board stated that in regard to Applicants' interrogatories addressing contentions not sponsored and not the subject of direct testimony by interrogatories, the fundamental purposes of discovery of narrowing issues by determining real factual disputes, safeguard against surprise at trial, and permit adequate preparation for trial are not necessarily served. However, in this instance the specific interrogatories posed by the Applicants on those contentions sponsored by others in this case as to whether Town of Rye intended to litigate certainly is a fair subject requiring a simple response if Town of Rye did not intend to litigate other parties' contentions.
As the Board in its March 1,1983 order noted, the Town of Rye's title is incorrect in that the Board ordered a modified sanction while Applicants' motion for sanctions had requested dismissal of these municipalities. As modified by the Board, the sanction ordered was to " preclude the named nine cities and towns from presenting direct testimony or cross-examining any witnesses proffered by other parties in this proceeding."
l
i 3
degree to which an answer serves the purposes of discovery must be weighed against a claim that the answer is unduly burdensome. Rye cannot justify a claim of undue burden by not responding in the negative if it does not intend to participate in other parties' contentions.
It is equally true that if Rye intends to litigate others' contentions it must respond to those interrogatories which will at least alert the parties and the Board to the depth of Rye's participation.
In the orderly processes of litigation, Rye cannot place itself above the fray and participate only on its own terms. The parties and this Board were entitled to know what, if anything, Rye intended to present when the subject involved another party's contention. When Rye did not respond, the Board exercised its option by preventing Town of Rye from belatedly entering into the litigation of another party's contention albeit through addressing the Applicants', Staff's or sponsoring intervenor's direct testimony.
However, Applicants' Interrogatory XXIX-1/5 is addressed to Town of Rye and its Contention Rye-2. As the Board stated in its March 1, 1983 order at page 3, When interrogatories such as those formulated by Applicants are addressed to a party and concern that party's contentions, the aforementioned purposes [of discovery] are served by and militate toward answers. This is true even if that party chooses to forego the presentation of direct testimony and to proceed by cross-examination, otherwise, an intervenor's choice of procedure would effectively abrogate discovery and the benefits accruing therefrom.
This Interrogatory XXIX-1/5 deals with five queries directly related to the purpose of discovery which are to narrow the issues, safeguard against surprise at time of trial and to permit adequate i
4 preparation for trial. Although the failure of Town of Rye to respond did not warrant, in this Board's opinion, dismissal, the Board expected, and continues to expect, Town of Rye to respond fully and completely to an interrogatory clearly addressed to this party's contention. As sponsor of the contention, there are no grounds which militate against answers. Even a claim of undue burden on Town of Rye could not be sustained when weighed against the benefits that discovery serves in this instance. Accordingly, the Board does retain the force and effect of its September 11, 1986 order and directs immediate full and complete responses by Town of Rye to Applicants' Interrogatory XXIX-1/5. The Board directs that Town of Rye respond by in-hand delivery to Applicants, Staff and this Board no later than fourteen days from the service date of this order.
The Board need address only one other matter concerning Rye's Motion For Reconsideration of the Board's modified sanctions of September 11, 1986. Rye's statement that it has been denied the right to litigate its contention is incorrect. The Board stated that it intended to preclude Rye (and others) from presenting direct testimony or cross-examining any witnesses proffered by other parties. As sponsor of Contention Rye-2, Rye has always had the right to litigate Rye-2 since Town of Rye was not dismissed from the proceeding. As sponsor of the Contention Rye-2, the Board expects Town of Rye possibly to present l
some direct testimony and to cross-examine on opposition to its position on Rye-2. As a participant, it is therefore imperative that Rye respond as we have directed above to Applicants' Interrogatory XXIX.
t 5
A', the Staff noted in its response of September 9,1986 to Applicants' Motion for Sanctions, "the failure of the nine towns and cities to ccmply with the Board's Order of June 24, 1986, requires that sanctions be imposed."3 The Board expressed its concern that there was no input by the communities. We believe that full participation at all levels, including the benefits that can be derived through discovery of placing the issues before the parties, will be of service to the community and the Board in consideration of radiological emergency response plans that i
meet the reasonable assurance requirements of the regulations.
The Board affinns its order precluding Town of Rye from participation in this proceeding by presenting direct testimony or cross-examining any witnesses proffered by other parties. The Board emphasizes again that Town of Rye must respond to the Applicants' Interrogatory XXIX-1/5 if it intends to retain its status as a 10 CFR 2.715(c) party in this proceeding.
3 NRC Staff's Response to Applicants' Motion For Sanctions, September 9, 1986, at page 4.
6 t
6 The Board has also considered Applicants' Answer To Motion For Reconsideration By The Town of Rye of Board Order Granting Applicants' Motion For Sanctions September 11, 1986, dated September 23, 1986.
FOR THE ATOMIC SAFETY AND LICE ING BOARD J
^
U VA e/
Ma yr Helen F. Foyt, Chairperson O Administrative Judge Dated at Bethesda, Maryland this 7th day of October 1986.
l l
l