ML20215D852
| ML20215D852 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/09/1986 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1052 OL, NUDOCS 8610140332 | |
| Download: ML20215D852 (15) | |
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7 10/09/86 DOCKETED USNRC UNITED STATES OF AMERICA
_ NU. CLEAR REGULATORY COMMISSION
~86 0CT 10 P3 i07 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD g p q
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443 OL NEW HAMPSHIRE, et al.
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50-444 OL
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Off-Site Emergency.
(Seabrook Station, Units 1 and 2)
)
Planning Issues NRC STAFF'S RESPONSE TO MOTIONS FILED BY THE TOWN OF AMESBURY AND THE TOWN OF RYE FOR RECONSIDERATION OF ORDER IMPOSING SANCTIONS On August - 20, 1986, the Applicants filed a motion II requesting the Licensing Board to impose sanctions against 'nine towns and cities, 2_/ for participating in this proceeding under 10 C.F.R.
I 2.715(c),
failing to comply with (or seek relief from) the Board's order of June 24, 1986 directing them to respond to the Applicants' interrogatories of
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" Applicants' Motion for Sanctions," dated August 20, 1986.
The Applicants' motion had sought the dismissal of the nine towns and cities from the proceeding.
A timely response to the Applicants'
. motion for sanctions was filed by the Staff; see "NRC Staff's Response to Applicants' Motion for Sanctions," filed September 9, 1986 (" Staff Response").
To our knowledge, no other party or town filed a timely response to Applicants' motion for sanctions prior to the issuance of the Board's Order, although the Town of Amesbury did file an untimely response thereto on September 15,1986, after the Board had already issued its Order imposing. sanctions.
See
" Town of Amesbury's Response and Objection to Applicants' Motion for Sanctions and NRC Staff's Response to Applicants' Motion for Sanctions," filed September 15,1986 ("Amesbury's Response").
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The nine cities and towns are:
Town of Brentwood, Town of Seabrook, Town of North Hampton, Town of Salisbury, City of Newburyport, Town of Amesbury, Town of Rye, Town of Newbury, and City of Portsmouth, i
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I 8610140332 861009 DESIGNATED ORIGINAL PDR ADOCK 05000443 Certified By h B
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April 28,1986. EI On September 11, 1986, on the basis of Applicants' motion, the Boa'rd. issued an Order imposing sanctions against the nine towns and cities, in which it ruled that they would be precluded "from presenting direct testimony or cross-examining any witnesses proffered by other parties in this proceeding," and that the Board would not accept "any written pleadings on the direct or cross-examination testimony developed on this record by the other parties from these nine cities and towns," including findings of fact and conclusions of law.
Following the issuance of the Board's Order, various of the affected towns and cities filed motions or " objections" to the Board's order, b requesting that the Board reconsider its Order and restore fully their ability to participate in this proceeding.
The NRC Staff
(" Staff") hereby files its response to two of the motions seeking reconsideration of the Board's Order imposing sanctions I
3/
" Order (Granting Motions to Compel Responses to Applicants' Inter-rogatories)," issued June 24, 1986.
4/
These are as follows:
i 1.
" Town of Amesbury's Objection to the Order of the Board
^
Imposing Sanctions,"
filed September 19, 1986
("Amesbury's Motion");
2.
" Motion for Reconsideration by the Town of Rye of Board Order of Granting Applicants' Motion for Sanctions September 11, 1986," filed September 19,1986 (" Rye's Motion");
e 3.
" Town of Seabrook Motion for Reconsideration of Order of l
the Board of Imposing Sanctions,"
filed September 22, 1986
("Seabrook's Motion"); and 4.
Town of Salisbury's " Motion to Reconsider Order," filed September 30,1986 (" Salisbury's Motion").
1 '..
-- those filed by the Town of Amesbury and the Town of Rye. b For reasons set-forth below the ' Staff submits that the Board should the reconsider its Order and should restore each Towns' ability to participate in this proceeding, although we recommend that such reconsideration be conditioned, for the Town of Rye, upon that town's prior identification'of the contentions it seeks to litigate and its providing answers to the Applicants' interrogatories concerning those contentions.
DISCUSSION
~In the discussion which follows, each of the two pending motions for reconsideration is briefly addressed, followed by a discussion of the reasons why the Staff recommends that the Board should now reconsider its Order imposing sanctions against these two Towns.
A.
The Town of Amesbury In its motion, the Town of Amesbury states that the Board erred in imposing sanctions against the Town and that the Order "should be lifted" insofar as it applies to Amesbury. The Town states that on July 1,1986, it filed a motion for a protective order, seeking relief from the Board's Order of June 24, 1986.
Amesbury notes that the Applicants responded to its motion while the Staff advised the Board that it was taking no position with respect thereto. Amesbury further states that it filed a l
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The Staff intends to respond to the motions filed by the Town of Salisbury and the Town of Seabrook within the next week.
Our response to those motions will provide our views, as well, as to whether the Board should reconsider its Order imposing sanctions with respect to the remaining five towns and cities which have not filed motions for reconsideration.
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response to Applicants' motion for sanctions on September 15, 1986, t' hours" before it rechihed the Board's order imposing sanctions. -
In our view, Amesbury's filing of its motion for a protective order provides sufficient grounds for the Board to reconsider its Order i
imposing sanctions insofar as it affects Amesbury. The Licensing Board's Order of June 24, 1986 expressly provided that the Towns were to file their interrogatory answers by July 3,1986, unless "the person or party failing to answer or respond has applied for a protective order pursuant to 10 C.F.R. I 2.740(c)." El Accordingly, Amesbury's July 1, 1986
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filing of a motion for a protective order, in accordance with the Board's Order of June 24, 1986, provides sufficient grounds for the Board to reconsider its Order imposing sanctions against Amesbury.
Further, the Staff submits that Amesbury should be relieved from providing any further responses to Applicants' interrogatories.
In its July 1, 1986 motion for a protective order, Amesbury noted that it had previously " indicated a desire to participate in contentions dealing with
' Contiguous Jurisdiction Governmental Emergency Planning'... and with
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Pursuant to 10 C.F.R. I 2.730, Amesbury's response to Applicants' motion should have been filed by September 4,1986. Had Amesbury l
timely filed its response, the Licensing Board would have had an opportunity to consider Amesbury's views prior to ruling on the Applicants' motion.
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The Applicants note that motions for a protective order normally should be filed within the time provided for filing answers to interrogatories.
See " Applicants' Reply to Town of Amesbury's Objection to the Order of the Board Imposing Sanctions (9-11-86),"
filed September 23, 1986, at 2.
However, this argument appears to be misplaced here, where the Board's Order of June 24, 1986 provided that interrogatory answers were to be filed by July 3, 1986, unless requests for relief were filed under 10 C.F.R.
I 2.740(c).
i
i any contentions of [ sic] the KLD Associates ETE.... Since there are presently no contentions admitted on the subjects of interest, the Town of Amesbury objects to the interrogatories and the request for production of documents on the ground that discovery may only be served on a
' party. '"
m We believe that this statement complies with the procedure established in the Board's order of June 16, 1986, concerning similar objections made by the Commonwealth of Massachusetts.
There, faced with Applicants' motion to compel the Commonwealth to provide interrogatory answers (the Commonwealth had responded to the interroga-tories by seeking a protective order, one week after its answers were due), the Board ruled as follows: 8_/
1 The Licensing Board has established its schedule which requires that we proceed with each event on the schedule in order to meet the August 4,1986 commence-ment date for the evidentiary hearing.
Accordingly, in the interest of an orderly proceeding, it appears to this Board that we must inquire as to how the Commonwealth of Massachusetts wishes to proceed during litigation of this proceeding before ruling on the Applicants' Motion to Compel and the objections of the Attorney General.
We are in effect adopting the j
position of the NRC Staff as articulated in its j
response of June 9,1986 at page 5.
If the Common-wealth intends to participate as an interested state under 5 2.715(c), it must clearly and fully define the bounds of its intended participation. We believe tha_t in the interest of a fair hearing for all parties the Attorney General of the Commonwealth must notify all concerned of the state's particular interests sufficiently i
8,/
" Notice to Parties (Re Participation by Commonwealth of Massachu-setts in Role as 5 2.715(c) Interested State)", dated June 16, 1986, at 1-2 (emphasis added).
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on notice of what the that the parties are p j Commonwealth. will litigate For this reason, we believe that the Town of Amesbury has sufficiently complied with the Board's directive, and that it should not be required to
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The Staff's filing of June 9, 1986, referred to by the Licensing Board, is the "NRC Staff Response to Applicants' Motion to Compel Answers to Interrogatories Addressed to the Attorney General of Massachusetts."
There, the Staff had noted that the question of whether a I 2.715(c) participant must comply with NRC discovery rules "is largely a novel one."
(Id., at 3).
However, the Staff expressed the view that "the more a participant acts as a full party, the more that participant is bound by the procedural rules the Commission has established to regulate the behavior of the parties."
(Id., at 4).
The Staff noted that the purpose of the discovery rules is to enable the parties "to more adequately prepare for litigation which in turn increase parties ability to develop a complete record while cutting down on unnecessary inconvenience, surprise i
and expense during trial."
(Id., at 4-5).
On balance, the Staff recommended as follows (Id., atT-6; emphasis added):
[T]he Staff submits that the proper course for the Board to follow at this time is to inquire of Massachu-setts how the State wishes to proceed during the litigation.
If Massachusetts wishes to present a direct case on any of the admitted contentions... It should j
be required to respond to the a?plicable inter-j ro ratories.
Similarly, if Massac tusetts plans to actively lit gate any of the contentions through cross-l examination, discovery is appropriate at this time.
On the other hand, if Massachusetts does not intend at this time to take a position on any of the admitted contentions, [it] should not be required to respond to the voluminous discovery request submitted by the Applicants.
In any event, the first step is for Massachusetts to indicate what role it wishes to play in the upcoming litigation; Applicants' Motion to Compel can then be ruled upon accordingly.
I
provide further responses to Applicants' interrogatories concerning the contentions at issue.
B.
The Town of Rye The Town of Rye asserts that the sanctions imposed "are so dispro-portionately severe that same are unconscionable ar> d amount to a wrongful deprivation of Rye's constitutional rights Rye states that it would have been "more equitable and less prejudicial" to deny it f
the right to litigate its sole admitted contention, but asserts that the Board went too far in denying it the right to litigate other parties' and towns' contentions, apparently indicating that it intended to participate in such litigation. b Nowhere, however, does Rye explain why it failed to respond to Applicants' interrogatories or to comply with the Board's order 4
directing answers thereto.
-10/ We note that on June 20, 1986, after the Board issued its Order requiring the Commonwealth of Massachusetts to indicate the extent to which it desired to participate in the proceeding, Massachusetts identified the contentions which it intends to litigate in this proceeding, and subsequently provided answers to Applicants' interrogatories concerning those contentions.
11/ Rye's full statement in this regard is as follows:
In Rye's particular situation, the Board has accepted only one of it's contentions for litigation, which on its face was the least significant of all the contentions Rye advanced.
To deny Rye the right to litigate that contention because of it's failure to respond to interrogatories would have appeared more equitable and 1
less prejudicial.
Ilowever, to deny Rye the rights of direct testimony and cross-examination on matters prof-fered during actual hearing, the submission of written pleadings on same, and the filing of findings of facts and conclusions of law, is arbitrary and unreasonable.
In our view, Rye has failed to demonstrate sufficient grounds for
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the Board to reconsider its Order imposing sanctions against the Town.
This is particularly true in light of Rye's apparent admission that it intends to participate in the litigation of other parties and towns' contentions -- the extent of which intended participation was the focus of Applicants' interrogatories.
Rye's answers to those interrogatories would have assisted the parties in preparing for hearings and in developing a full record, and sanctions were appropriately imposed upon the Town's failure to respond to those interrogatories.
As set forth in the Staff's response to Applicants' motion to compel answers by the Commonwealth of Massachusetts (supra, n.9) -- which views the Licensing Board indicated it was adopting, in its Order of June 16, 1986:
If [an interested municipality) wishes to present a direct case on any of the admitted contentions... it should be required to respond to the applicable interrogatories.
Similarly, if [the municipality] plans to actively litigate any of the contentions through cross-examination, discovery is appropriate at this time.
In light of Rye's apparent intent to participate in litigating some or all of the contentions filed by other parties herein, as expressed in its pending motion for reconsideration, the Town should have identified the contentions it intends to litigate, and should have provided answers to Applicants' interrogatories concerning those contentions.
In this regard, the Staff reiterates its view that the Board's Order imposing sanctions is consistent with established NRC practice.
As set l
forth in the Staff's response to Applicants' motion for sanctions, 10 C.F.R. I 2.707 empowers the Licensing Board to impose sanctions against i
a party to an NRC proceeding for failure, inter alia, "to comply with any i
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9 discovery order entered by the presiding officer pursuant to 10 C.F.R.
I 2.740."'
The' BoaidIs ' powers in this regard are rather broad.
10 C.F.R. I 2.707 provides that "the presiding officer may make such orders in regard to the failure as are just," while I 2.718 provides:
A presiding officer has the duty to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order.
He has all powers necessary to those ends, including the power to.
[r]egulate the course of the hearing and the conduct of the participants.
The Board's Order imposing sanctions against Rye was clearly within the Board's broad powers to regulate the course of the proceeding, as set forth above.
Further, the Order was consistent with the Commission's I
policy statement, cited in the Staff's response to Applicants' motion,
which " requires that a board consider all the circumstances" in deter-mining whether and to what extent sanctions are appropriate. Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981). As the Commission stated (I_d, at 454):
2 Fairness to all involved in NRC's adjudicatory l
procedures requires that every participant fulfill the obligations imposed by and in accordance with applicable law 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 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 or the orderly conduct of the proceeding, whether its occurrence is an isolated incident or a part of a pattern j
of
- behavior, the importance of the safety or i
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environmental concerns raised by the party, and all of
.the circumstances.
A balancing of these factors in light of the various towns and cities' conduct, previously led the Staff to recommend that the Board should preclude the nine towns and cities from filing direct testimony or con-ducting cross-examination in this proceeding (Staff Response, at 5).
The Licensing Board accepted the Staff's recommendation, and added the
. provision that it would not accept written submissions from those towns and cities addressing the testimony presented by other participants in the proceeding.
Notwithstanding its former position, however, the Staff submits that the Board should nonetheless reconsider its Order imposing sanctions against the Town and should permit Rye to resume its participation in this proceeding upon that Town's identification of the contentions it seeks to litigate and its submission of answers to Applicants' interrogatories concerning those contentions, within 14 days after issuance of the Board's order. b The reasons for this recommendation are as follows.
First, the Staff is mindful of the fact that Rye, like the other towns and cities affected by the Board's order, is participating in this proceeding as an interested municipality rather than as a full party, and I
that the Commission encourages such participation in NRC licensing proceedings.
See 10 C.F.R.
I 2.715(c).
Second, we are aware that, I
until now, Rye and the other affected towns and cities have largely been i
i 12/ This time period is consistent with the time limits provided in 10 C.F.R. I 2.740b.
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participating in this proceeding without benefit of legal counsel, and may not have ' appreciated' tile consequences of failing to observe and comply
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with Licensing Board orders.
Third, we believe that Rye, like the other l
affected towns and cities, has now learned that it must timely comply with Board orders or face the real possibility that severe sanctions may be imposed against it, including the possibility that it may be dismissed from the proceeding.
Thus, the Board's Order imposing sanctions will have served an important purpose, even if the Board should now reconsider that Order in the manner suggested here.
Further, if the Board permits Rye or the other towns and cities to resume their participation in this proceeding upon providing answers to the Applicants' interrogatories, the Board's actions will have served to admonish the towns and cities that "such conduct will not be tolerated in the future."
See Statement of Policy, supra,13 NRC at 454, b Finally -- and most importantly -- the Staff believes that if Rye now complies with the Board's order directing answers to Applicants' interrogatories, it will thereby have alleviated any harm caused by its prior failure to comply with that order.
The Applicants' interrogatories generally sought to learn whether and to what extent the various towns and cities intend to present direct testimony and/or cross-examine other parties' witnesses in the offsite emergency planning proceeding.
Responses to those discovery requests could still be of assistance to the Applicants and other parties in preparing for hearings, particularly in 13/ The approach suggested here is consistent with the well-established judicial practice of permitting a party to purge itself of a civil contempt ruling upon complying with the court's order.
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light of the fact that the hearings which previously had been scheduled for August 1986 have een postponed, and a new schedule has not yet
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been established.
Further, as the Board is aware, the State of New Hampshire filed Revision 2 of its offsite emergency plan on September 8, 1986, and it may be anticipated that contentions addressing that revision will be filed shortly, potentially leading to some delay in the start of offsite emergency planning hearings.
For these reasons, the Staff recommends that' the Board should reconsider its Order imposing sanctions and should afford Rye an opportunity to resume its participation in this proceeding, conditioned upon its identification of the contentions it seeks to litigate and its providing answers to Applicants' interrogatories concerning those contentions within 14 days after service of the Board's order granting the motions for reconsideration.
CONCLUSION For the reasons set forth above, the Staff submits that the Board should grant the motions for reconsideration filed by the Towns of Amesbury and Rye, in the manner and to the extent set forth above.
Respectfully submitted, hUsua s Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Bethesda, Maryland this 9th day of October,1986
DOLKETED UNITED STATES OF AMERICA USNHC NUCLEAR REGULATORY COMMISSION
~86 0CT 10 P3 :07 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD GFFICE J' EEm. w y 00CMIilNG 4 5[%m[
In the Matter of
)
9 RANCH
)
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'S RESPONSE TO MOTIONS FILED BY THE TOWN OF AMESBURY AND THE TOWN OF RYE FOR RECONSIDERATION OF ORDER IMPOSING 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 mall system, this 9 th day of October,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 Harbour
- Ms. Carol Sneider, Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission 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 i
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.
I New Hampshire Civil Defense Agency i
107 Pleasant Street l
Concord, NH 03301 l
t
Calvin A. Canney, City Manager.
Allen Lampert
-City Hall Civil Defense Director
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126 Daniel Street -
Town of Brentwood Portsmouth, NH 03801 20 FrankHn 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 Ropaa & Gray Federal Emergency Management Agency 225 Franklin Street 500 C Street, S.W.
Boston, MA 02110 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 Panel
- Matthew T. Brock, Esq.
U.S. Nuclear Regulatory Commission Shaines & McEachern Washington, D.C.
20555 25 Maplewood Avenue P.O. Box 360 Portsmouth, NH 03801 l
l
Docketing and Service Section*
William Armstrong Civil Defense Director
-Office of the Secretary..
Town of Exeter U.S. Nuclear Re'gulatory Commission 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. K. Gad III, Esq.
Gary W. Holmes, Esq.
Ropes a Gray Holmes & Ellis 225 Franklin Street 47 Winnacunnet Road Boston, MA 02110 Hampton, NH 03842 Judith H. Mizner, Esq.
Silverglate, Gertner, Baker Fine and Good 88 Broad Street Boston, MA 02110 i
Sherwin E. Turk Senior Supervisory Trial Attorney i
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