ML19347F670

Motion to Strike Tx Association of Community Organizations for Reform Now Contentions 10,12,14,15,17,or Alternatively, for ASLB Order Compelling Full & Complete Responses to Applicants' Interrogatories.Certificate of Svc Encl

ML19347F670
Person / Time
Site:	Comanche Peak
Issue date:	05/14/1981
From:	Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8105220399
Download: ML19347F670 (11)

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. 1 May 14, 1981 l MAY 1 BM 7;) os g . -1 s/ UNITED STATES OF AMERICA 8

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, NUCLEAR REGULATORY COMMISSION i

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TEXAS UTILITIES GENERATING COMPANY, et al.

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) Docket Nos. 50-4 n

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) 50-446

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(Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating License)

APPLICANTS' MOTION TO STRIKE ACORN CONTENTIONS FOR DEFAULT OR, IN THE ALTERNATIVE, TO COMPEL RESPONSES TO APPLICANTS' INTERROGATORIES Pursuant to 10 C.F.R. {2.707, Texas Utilities Gener-ating Company, et al. (" Applicants") hereby move the Atomic Safety and Licensing Board (" Board") in the captioned pro-ceeding to strike from this proceeding Contentions 10, 12, 14, 15, 17, 18, 19 and 21 in view of the total default of l

1 Texas Association of Community Organizations for Reform Now (" ACORN") in responding to Applicants' second and third sets of interrogatories. In the alternative, Appli-l l cants move, pursuant to 10 C.F.R. $2.740(f), that the l

l Board promptly issue an order compelling ACORN to provide full and complete responses to Applicants' interrogatories I on an abbreviated schedule.

I. Backcround l

i ACORN's participation in this proceeding is marked by a repeated and flagrant disregard for the Rules of Practice and the responsibilities of a party under the Rules. In particular, ACORN has consistently failed to SS*6 8105220377 @ 9/

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2-meet the requirements governing discovery in NRC licensing proceedings. As demonstrated below, ACORN's failure to provide any responses to Applicants' discovery requests with respect to 8 of the 13 contentions of ACORN constitutes a default pursuant to 10 C.F.R. 2.707, and the Board I

j should strike those contentions from this proceeding.

On June 16, 1980, the Board issued an Order subsequent to the second prehearing conference in which several contentions sponsored by ACORN were admitted in the proceeding. 1/ In that Order, the Board did not set a schedule for discovery, but admonished the parties to submit discovery requests and responses thereto with

" reasonable promptness."

Pursuant to the Board's June 16, 1980 Order, Applicants filed their first set of interrogatories to ACORN on August 13, 1980. Rather tha" recount here the de?. ailed history of ACORN's failures to respond, we invite the Board's attention to the discussion set forth in the Board's Memorandum and Order, dated April 13, 1981, granting Applicants' modified motion to compel ACORN to respond to Applicants' first set of interrogatories.

Suffice it to note that eight months after responses were due, ACORN has provided only a handful of adequate answers to those interrogatories, while almost two-thirds of the

~1/ ACORN's contentions are 5, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 23.

1 interrogatories directed at other contentions of ACORN havr received no response or supplementation.

On March 2,'1981, Applicants served their second set of interrogatories to ACORN. Those interrogatories concerned Contentions 10, 12 and 14, dealing with asymmetric loading from pipe breaks, evaluating compliance with GDC 2, and d.c.

power systems, respectively. ACORN was required to respond to those interrogatories by March 23, 1981. 10 C.F.R.

$2.740b(b). However, Applicants received no response from ACORN regarding those interrogatories. Accordingly, Applicants moved on March 31, 1981 for an order compelling ACORN to respond to those interrogatories. ACORN did not even respond to Applicants' motion. 2/

Again, on April 10, 1981, Applicants served inter-

rogatories to ACORN. This third set of interrogatories concerned Contentions 15, 17, 18, 19 and 21, dealing with instrumentation for mon'.toring an accident, effects of aging and cumulative radiation, pressure transients, steam generator corrosion and accidents involving heavy loads around spent fuel, respectively. ACORN was to serve its responses to those interrogatories by April 29, 1981.

10 C.F.R. $2.740b(b). However, as with Applicants' second l

l set of interrogatories, ACORN provided no response to this i

-2/ If the Board grants the instant motion to strike, Appli-cants March 31, 1981 motion to compel would become moot.

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third set of interrogatories. In view of the above facts, Applicants move the Board to strike those contentions.

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l II. Applicants' Motion to Strike I

The NRC Rules of Practice provide that "on failure of a party to file an answer or pleading within the time pre-scribed, ...the nresiding officer may make such orders in regard to the failure as are just." 10 C.F.R. $2.707. Also, the presiding officer is vested with the authority to regu-late the course of the proceeding and the conduct of the participants. 10 C.F.R. {2.718. Accordingly, Applicants submit that ACORN's failure to provide the required responses to Applicants' second and third sets of inter-rogatories constitutes a default under 10 C.F.R. $2.707.

Further, an order striking from this proceeding the contentions which are the subject of those interrogatories would be a wholly just and reasonable action and within the Board's discretion.

First, ACORN is required to provide responses to Applicants' interrogatories, either in the form of answers or objections thereto. 10 C.F.R. $2.740b(b). In fact, ACORN is aware of its responsibilities concerning dis-covery. At the request of the present Board Chairman, the NRC Of fice of the Secretary forwarded to each Intervenor i

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on November 17, 1980 copies of the decision by the Appeal Board in Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-619, 12 NRC 317(1980). That decision clearly sets forth the applicable principles governing discovery in NRC proceed-ings. In particular that decision states, as follows:

It is not proper for a party to ignore a discovery request. Interrogatories, for example, must either be answered or objected to in the time allowed. 10 C.F.R. $2.740b(b)....

The Applicants in particular carry an unrelieved burden of proof in Commission proceedings. Unless they can effectively inquire into the position of the intervenors, discharging that burden may be impossible. To permit a party to make skeletal contentions, keep the bases for them secret, then require its adversaries to meet any conceivable thrust at hearing would be patently unfair, and inconsistent with a sound record.

[Susquehanna, supra, 12 NRC at 3 22, 338 (citations omitted).]

In addition, the Board emphasized the above principles in its April 13, 1981, Memorandum and Order directed at ,

ACORN. Thus, ACORN's decision to ignore totally Applicants' second and third set of interrogatories can be taken as nothing other than a flagrant disregard for the Board's admonitions and the Rules of Practice, and tantamount to a refusal to participate in this proceeding with rs opect to

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the contentions which are the subject of those interroga-tories. 3/ Accordingly, ACORN's failure to file the required pleadings is a default under 10 C.F.R. $2.707.

Further, it is within the discretion of the Board to take appropriate measures in view of ACORN's default, in-cluding striking ACORN's contentions from this proceeding.

Section 2.707 of 10 C.F.R. provides that the presiding officer may make such orders as are just in view of a default. In addition, the presiding officer has the " authority" to regulate the course of the proceeding and the conduct of the partcipants. 10 C.F.R. $2.718. Certainly it is within the Board's discretin to strike from this proceeding the subject contentions.

( Finally, an Order striking Contentions 10, 12, 14, 15, 17, 18, 19 and 21 would be just and appropriate in this situation. ACORN has totally ignored Applicants' second and third set of interrogatories (and all of the NRC Staff's) and did not respond to Applicants' motion to compel with respect to the second set. Further, in view of ACORN's 3/ Neither has ACORN provided any response to the NRC Staff's interrogatories concerning its contentions.

See "NRC Staff First Set of Interrogatories To and Request for The Production of Documents From, Intervenor ACORN," dated January 19, 1981; and " Staff's Motion For Order Compelling ACORN To Respond To NRC Staff Interrogatories and Request for Production of Documents," dated March 16, 1981.

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knowledge of its duty to respond, its failure to respond l could be taken as a decision not to prosecute the suoject contentions. As the Supreme Court has stated:

It is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions.

[Vernont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 319, 553 (1978).]

Such " meaningful participation" includes clarification of the party's contentions and a willingness to make such efforts as are necessary to establish the party's position so that it may be considered in the proceeding. See Vermont Yankee, supra, at 554.

At bottom, the issue at bar is whether the Board has the authority to strike (dismiss) contentions if the proponent of the contentions fails to comply or object to lawful j discovery demands, or whether the Board must take the intermediate step of issuing an order compelling responses.

l 10 C.F.R. {2.740(f). We belive that where a party has demonstrated a pattern of contumacy such as ACORN has here in totally ignoring the Rules of Practice and fairplay, the Board may and should refuse to perpetuate the delay by allowing the recalcitrant party even more time. Applicants are entitled to timely fulfillment of lawful discovery requests. Where, as here, a party fails even to object to such requests and the pattern of behavior is clear, the

Board may, in its discretion, forego issuing an order to compel, and strike the subject contentions. There is no legal requirement that the Board must issue an order compel-ling discovery before doing so.

For the foregoing reasons, Applicants move the Board to find ACORN in default and order that Contentions 10, 12, 14, 15, 17, 18, 19 and 21 be struck from any further consideration in this proceeding.

III. Applicants' Alternative Motion to Compel In the event the Board does not grant the above motion to strike ACORN's contentions, the Applicants move in the alternative that the Board promptly issue an order compelling ACORN to provide adequate responses to the Applicants' second and third sets of interrogatories to ACORN. As detailed above, ACORN has not yet responded or objected to those interrogatories, even though its answers were due March 23 (second set) and April 29 (third set),

I 1981. 10 C.F.R. $2.740b(b). Nor has ACORN moved for an extension of time in which to file its responses. Accord-i i

ingly, an Order compelling responses to Applicants' inter-

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rogatories or an abbreviated schedule (i.e., within 15 days of the date of the Order) is warranted should the Board not grant Applicants' motion to strike. 4/

Respec,f ly submitted, I A Nicho Lsf . Reynolds Q

William A. Horin O.fu DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

i Washington, D.C. 20036

! (202) 857-9817 '

Counsel for Applicants May 14, 1981 l -4/ Applicants note that on April 30, 1980, ACORN served l a " Notice of Substitution of Counsel." However, that l notice did not provide the information required by 10 C.F.R. 2.713(a). Accordingly, ACORN should provide an appropriate notice of appearance of counsel pursuant to that section.

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l UNITED STATES OF AMERICA '

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In .the Matter of - ) -

)

TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 COMPANY, -et al. ) 50-446

)

(Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating License) i CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Applicants' Motion To Strike ACORN Contentions For Default Or, In The Alternative, To Compel Responses To Applicants' Interrogatories,"

in the above-captioned matter were served upon the following persons by deposit in-the United States mail, first class postage prepaid this 14th day of May, 1981:

i Valentine B. Deale, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U.S. Nuclear Regulatory 1001 Connecticut Avenue, N.W. Commission Washington, D.C. 20036 Washington, D.C. 20555 Dr. Forrest J. Remick, Member Marjorie Ulman Rothschild, Esq.

Atomic Safety and Licensing Office of the Executive Board Legal Director 305 E. Hamilton Avenue U.S. Nuclear Regulatory State College,, Pennsylvania 16801 Commission Washington, D.C. 20555 Dr. Richard Cole, Member Atomic Safety and Licensing David J. Preister, Esq.

Board Assistant Attorney General U.S. Nuclear Regulatory Environmental Protection Commission Division i

Washington, D.C. 20555 P.O. Bon 12548

, Capitol Station l' Chairman, Atomic Safety and Austin, Texas 78711 Licensing Board Panel U.S. Nuclear Regulatory Mr. Richard L. Fouke Commission CFUR Washington, D.C. 20555 1668B Carter Drive Arlington, Texas 76010 l

- -e, Arch C. McColl, III, Esq. Dwight H. Moore 701 Commerce Street West Texas Legal Services Suite 302 100 Main Street (Lawyers Bldr.)

Dallas, Texas 75202 Fort Worth, Texas 76102 Jeffery L. Hart, Esq. Mr. Chase R. Stephens 4021 Prescott Avenue Docketing & Service Branch Dallas, Texas 75219 U.S. Nuclear Regulatory Commission Mrs. Juanita Ellis Washington, D.C. 20555 President, CASE 1426 South Polk Street Dallas, Texas 75224

.t> 0-William A. Horin cc: Homer C. Schmidt Spencer C. Relyea, Esq.

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