ML19323G684
| ML19323G684 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 05/09/1980 |
| From: | Trowbridge G, Zahler R METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006060475 | |
| Download: ML19323G684 (11) | |
Text
b t Lic 5/9/80 g p Docmnto U3NRC UNITED STATES OF AMERICA y 1 21980 > b NUCLEAR REGULATORY COMMISSION Offke OKketintCf the Sectn
& sake q, Branch BEFORE THE ATOMIC SAFETY AND LICENSING BOARD g In the Matter of )
)
METROPOLITAN EDISON COMPANY ) Docket No. 50-289
) (Restart)
(Three Mile Island Nuclear )
Station, Unit No. 1) )
LICENSEE'S MOTION FOR SANCTIONS AGAINST ENVIRONMENTAL COALITION ON NUCLEAR POWER The background of Licensee's discovery efforts from Environ-mental Coalition on Nuclear Power (." ECNP " ) is succinctly stated in the Board's Memorandum and Order on Licensee's Motion to Compel Discovery of*ECNP (April 11, 19801:
Licensee served interrogatories upon inter-venor Environmental Coalition on Nuclear Power CECNP) on January 18, 1980. Responses would have been due on February 6, but the board 3 granted to all parties an extension until l March 17 to respond to discovery requests. ;
ECNP filed neither objections nor responses '
to licensee's interrogatories. Licensee moves to compel discovery by motion of March
- 24. ECNP responded to licensee's motion on 1 April 3. ISlip op, at 1.] '
After finding that each of Licensee's interrogatories to ECNP is " relevant to the proceeding and * *
- appear [s] reasonably cal-culated to lead to the discovery of admissible evidence" (slip op.
^
8006060q75
at 2) , the Board directed ECNP to respond to Licensee's interroga-tories, as modified by the Board,1/ within ten days following the service of its Order (slip op. at 5). Accordingly, ECNP's time for response lapsed on April 28, 1980. To date, Licensee has re-ceived no response from ECNF to its first set of interrogatories.
Licensee's counsel contacted ECNP's representative on Thursday, May 8, 1980, and received no indication that any response would
- be forthcoming.
Pursuant to Section 2.707 of the Commission's Rules of Practice, 10 C.F.R. S 2.707, Licensee moves the Board for an order dismissing ECNP as a party to this proceeding. In relevant part, Section 2.707 states:
On failure of a party * *
- to comply with any discovery order entered by the presiding officer pursuant to S 2.740 * *
- the presiding officer may make such orders in regard to the failure as are just, including among others, the following:
Ca) 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 l l
Cbl Proceed without further notice to take proof on the issues specified.
When it adopted Section 2.707 in its present form, the Commission stated (37 Fed. Reg. 15127 (July 28, 1972)):
1/
In its discretion, and for the purpose of easing ECNP's burden in responding to Licensee's interrogatories, the Board modified I
certain requests so that ECNP need only identify persons and docu-ments containing information which is asserted by FCNP to support j its contentions (Liip op. at 3-4) . Licensee does 1 at object to '
such a modification.
Section 2.707 Default, has been amended to pro-vide sanctions for failure to comply with the discovery provisions or with prehearing orders.
In order to control the course of the proceed-ing, the presiding officer should have the nec-essary authority to impose appropriate sanctions on all parties who do not fulfill their responsi-bilities as participants. [ Emphasis added.]
This provision clearly authorizes the Board to impose sanc-tions against an intervenor who fails to comply with the Commis-sion's discovery rules and the Board's orders, including the authority to dismiss an intervenor as a party to the proceeding.
Northern States Power Co. (Tyrone Energy Eark, Unit 1) , LBP-77-37, 5 N.R.C. 1298 (1977); Offshore Power Systems (Manufacturing Licensee for Floating Nuclear Power Plants), LBP-75-67, 2 N.R.C.
813 (1975); Public Service Electric & Gas Co. (Atlantic Nuclear Generating Station, Units 1 and 2), LBP-75-62, 2 N.R.C. 2/
702 (1975) .-
Similar sanctions are common in the federal courts under the analogous Rule 37 (b) (2) of Federal Rules of Civil Procedure for recalcitrant or unresponsive parties who fail to comply with dis-covery orders.3 /
-2/
See also Duke Power Co. (Amendment to Materials License SNM-1773),
Docket No. 70-2623, " Order Dismissing Carolina Action as an Inter-vening Party" (May 23, 1979); Ohio Edison Co. (Erie Nuclear Plant, Units 1 and 2), Docket Nos. STN-50-580, 50-581, " Order to Show Cause Relative to Dismissal" (March 12, 1979).
Copies of these unpublished licensing board orders are attached hereto as Appendix A.
3l
~In National Hockey Leeague v. Metropolitan Hockey Club, Inc.,
427 U.S. 639, 643 (19761, the Supreme Court explained the reasons for imposing the~ sanction of dismissal as follows:
But here, as in other areas of the law, the most
-- continued --
In determining whether a party should be dismissed for failure to respond to discovery orders, factors that have been considered include the nature of the party's contentions, the discovery re-quests directed to the party, the potential of the party for making a contribution to the proceeding, and the requirements for a fair hearing. Tyrone, supra, 5 N.R.C. at 1300. In the instant case, all of these factors require dismissal of ECNP.
First, with but one exception, /4 the contentions of ECNP, 3,/ -- continued --
severe in the spectrum of sanctions provided by statute or rule must be availt.ble to the district court in appropriate cases, net merely to pena-lize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. *** [If dismissal were not up-held in this case,] other parties to other law-suits would feel freer than we think Rule 37 con-templates they should feel to flout other dis-covery orders of other district courts.
See also Independent Investor Protective League v. Touche Ross & Co.,
607 F.2d 530 (2d Cir.1978) ; Mangano v. American Radiator & Standard Sanitary Corp., 438 F.2d 1187 (3d Cir. 1971); Emerick v. Fenick Industries, Inc., 539 F.2d 1379 (5th Cir. 1976).
4/
~
ECNP Contention No. 5 relates to the cumulative impact of radiation exposure. This is the same area raised by TMIA Conten-tion Nos. 1 and 2. In a filing dated May 5, 1980, TMIA has moved to withdraw its Contention Nos. 1 and 2. This fact, however,
~
provides no reason for not dismissing ECNP as a party to this proceeding.
ECNP Contention No. 5 was accepted by the Board for purposes of discovery gon1 . See First Special Prehearing Conference Order CDecember 18, 1979L at 41. The Board there noted that ECNP Con-tention No. 5 "is intertwined with bases and argument", and therefore directed that "the contention * *
- be redrafted in the course of discovery curing the defect. Tr. 674-77." Id. This, of course, has not been done. -ECNP has sought no discovery of
-- continued --
l
while arguably raising issues important to this proceeding, do not address areas not otherwise raised by other intervenors in the proceeding or by the Commission's August 9, 1979 Order and Notice of Hearing.5/ Thus, dismissal of ECNP is not likely to preclude 4_/ -- continued --
Licensee related to Contention No. 5 and has not responded to Licensee's interrogatories in this area. One of those interroga-tories that has been ignored by ECNP -- Interrogatory No. 5-4 --
inquired as to the date on which ECNP would serve its revised Contention No. 5.
In addition to Contention No. 5, ECNP Contention No. 16 raised issues relating to radioactive emissions from normal operation of TMI-1. This contention was rejected (id. at 43), but ECNP was given the opportunity to adopt TMIA Contention Nos. 1 and 2. Due to the failure of ECNP to respond to Licensee's interrogatories (see Interrogatory Nos. 16-1 and 16-20), Licensee does not now know whether ECNP intends to so adopt TMIA Contention Nos. 1 and 2.
-5/ The following table lists the ECNP admitted contentions and the corresponding contentions of other intervenors which raise similar issues:
ECNP 03ntention General Subject Matter Other Intervenor Contentions 1(a) Plant Ccmputer Sholly 13 1(b) Transient Sensitivity Sholly 6 1(c) Control Bocm Signals UCS 9 1(d)
- Range of Monitoring Sholly 5 Instruments 1(e) SBIOCA Analysis UCS 8; Sholly 7 1(f) Safety Grade Equignent UCS 12,* 14*
1(g) Water Ievel and Steam UCS 7; ANGRY 5(b) formation Detectors; High Point Vents 1(hl Containment Isolation Sholly 1 1(11 Control Bocm Design Sholly 15; ANGRY 5(c) 2 Dnergency Planning Sholly 8; ANGRY I-III; Newberry 3; Aanedt 4, 5 3 Managenent capability 'IMIA 5; Sholly 14; ANGRY 4; CEA 8 4 Alternative Accident Sholly 17 Sequences 5 nvmlative Impact of See footnote 4 Radiation 6 Psychological Stress PANE 1, 2; Newberry 1, 2; 'IMIA 3; Sholly 12; Aamodt 9; CEA 4 7 ECCS UCS 10*
14 Accident Analysis UCS 13*
16 Normal FaMinad.iye See footnote 4*
Buissions 19 Unit Separation Sholly 10; 'IMEA 7; Aamodt 8; CEA 5-7
-- continued --
a full and open airing of the matters raised by its intervention petition.
Seccad, as already noted, Licensee's discovery requests to ECNP are for the purpose of ascertaining the bases for the conten-tions and to shape them as issues appropriate for litigation. Even if ECNP were to fully respond at this late date, Licensee's hearing preptration would be severely delayed. The very basic information sought by the interrogatories should have been in Licensee's pos-session almost two months ago.
Third, to date, ECNP has not demonstrated a potential for making a contribution to this proceeding. It is true that ECNP and its representatives have participated in past Commission licensing proceedings -- and have assisted in the development of the record. However, in this proceeding ECNP's participation has been very limited. ECNP has filed no discovery of Licensee, and, so far as Licensee is aware, has made no use of Licensee's Dis-covery Reading Room. In part this is attributable both to the numerous other proceedings that ECNP is a party to and the distance of ECNP's primary representatives from the TMI site.-
6/
Licensee 5/ -- continued --
- ECNP contention rejected, but ECNP given the opportunity to adopt the contention of another party. Due to the failure of ECNP to respond to Licensee's interrogatories (see Interrogatory Nos.
1(f)-1, 1(f) -6, 7-1, 14-1, 16-1 and 16-20), Licensee does not now know whether ECNP plans to so adopt the contention of other parties.
-6/
See,ee.g., Tr. 883-84, 886, 1561, 1641, 1646-49 and ECNP Inter-venors' Answer to the Board's Memorandum and Order of January 9, 1980 (January 24, 1980); ECNP Response to Suspended Licensee's Motion to Compel Discovery Upon ECNP (April 3, 1980).
makes these observations, not to disparage the capabilities of ECNP, but only to reflect upon the realities of the situation.
Given ECNP's participation to date and its other commitments, there is little assurance that_ECNP will in the future make a sub-stantial contribution to this proceeding.
Fourth, as previously indicated, ECNP's default already has substantially injured Licensee's hearing preparation. While the Commission's Rules of Practice require a threshold showing of specificity and bases for admission of a contention as an issue in a proceeding, that showing is far short of the necessary in-formation to permit an efficient adjudication of the issues raised by the contentions. It is for this reason that the Commission's Rules of Practice permit a licensee to address inquiries, sub-stantially without limitation, to intervenors about the bases and other support for their contentions. Consistent with the broad scope of discovery available to Licensee, this Board has indi-cated that various contentions would need to be refined after 7/
discovery had been conducted.- Obviously, such an exercise by ECNP, who neither has conducted any discovery of its own nor re-sponded to Licensee's discovery, would be a futile gesture at this point in the proceeding.
Moreover, ECNP is not an uninformed intervenor unfamiliar with the Commission's Rules of Practice. ECNP and its representa-tives have participated in numerous Commission proceedings. They are fully knowledgeable of the responsibilities and obligations of U E.g., First Special Prehearing Conference Order (December 18, 1979) at-9-10.
an intervenor, including an intervenor's obligation to respond in a timely manner to discovery requests. In addition, both during prehearing conferences and in written orders, this Board has stressed time and again that intervenors simply cannot ignore deadlines; that to ignore such deadlines would be at the risk of the intervenor.8 /
To ignore ECNP's default would be to countenance that party's flaunting of the Commission's Rules of Practice and this Board's discovery orders. Licensee respectfully requests that the Board dismiss ECNP as a party to this proceeding.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: M/ ,
M /
, 'yorge'F' TITfabridge /
Robert E. Zahler Dated: May 9, 1980 8/
E.g., Tr. 168, 525; Memorandum and Order Ruling on Intervenor's Requests for Extension of Time to File Revised Emergency Planning Contentions (January 8, 1980).
Lic 5/9/89 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
METROPOLITAN EDISON JOMPANY ) Docket No. 50-289
) (Restart)
(Three Mile Island Nuclear )
Station, Unit No. 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Motion for Sanctions Against Environmental Coalition on Nuclear Power",
were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 9th day of May, 1980.
l Y v Robert E. Zphldr Dated: May 9, 1980 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
METROPOLITAN EDISON COMPANY ) Docket No. 50-289
) (Restart)
(Three Mile Island Nuclear )
Station, Unit No. 1) )
SERVICE LIST Ivan W. Smith, Esquire John A. Iavin, Esquire Chaiman Assistant Counsel Atcmic Safety and Licensing Pennsylvania Public Utility Conn'n l Board Panel Post Office Box 3265 U.S. Nuclear Pegulatory Ocnnission Harrisburg, Pennsylvania 17120 Washington, D.C. 20555 Karin W. Carter, Esquire Dr. Walter H. Jordan Assistant Attorney General Atcmic Safety and Licensing 505 Executive House Board Panel . Post Office Box 2357 881 West Outer Drive Harrisburg, Pennsylvania 17120 Oak Ridge, Twnnessee 37830 John E. Minnich Dr. Linda W. Little Chainnan, Dauphin County Board Atcmic Safety and Licensing of Comnissioners Board Panel Dauphin County Courthouse 5000 Hennitage Drive Front and M rket Streets Raleigh, North Carolina 27612 Harrisburg, Pennsylvania 17101 James R. Iburtellotte, Esquire Walter W. Cohen, Esquire Office of the Executive Iagal Director Consumer khu: ate U. S. Nuclear Regulatory Ctanission Office of Consumer Advocate mshington, D.C. 20555 14th Floor, Strawberry Square Harrisburg, Pennsylvania 17127 Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Comnission Washington, D.C. 20555
Jordan D. Cunningham, Esquire Karin P. Sheldon, F @
Attorney for Newberry Township Attorney for People Against Nuclear T.M.I. Steering Cmmittee Energy 2320 lbrth Second Street Sheldon, Harmon & Weiss Harrisburg, Pennsylvania 17110 1725 Eye Street, N.W., Suite 506 Washington, D.C. 20006
'Ihdre A. Adler, Esquire Widoff Reager Selkowitz & Aller Ibbert Q. Pollard Post Office Box 1547 609 Montpelier Street Harrisburg, Pennsylvania 17105 Baltimore, Maryland 21218 Ellyn R. Weiss, Esquire Chauncey Kepford Attorney for the Union of Concerned Jtxlith H. Johnsrud Scientists Environmental Coalition on Nuclear Sheldon, Hamon & Weiss Power 1725 Eye Street, N.W., Suite 506 433 Orlando Avenue Washingtcn D.C. 20006 State College, Pennsylvania 16801 Steven C. Shelly Marvin I. Iawis 304 South Market Street 6504 Bradford Terrace Mechanicsburg, Pennsylvania 17055 Phi 1Malphia, Pennsylvania 19149 Gail Bradford Marjorie M. Aamodt Holly S. Keck R. D. 5 IeTislation Chairman Coatesville, Pennsylvania 19320 Anci-Nuclear Group Representing York 245 West Phi 1Malphia Street York, Pennsylvania 17404 l
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APPENDIX A j
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p IIIIIID STATES OF ERICA .P UJCLEAR REGLLLW CCREESSION Mi
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In the M2tter of ) 5
) $f" DGE POa (nem ) Docket lio. 70-2623 !ii
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(Am,%t to MatM n1= License ) to 59 Shl773 for Oconee Nuclear Staticn # *
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Spent Fuel Transporent-4nn and ) p F+
q Storage at McGuire Nuclear Station) ) u a ,g ee$
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ORDER DISMISSIliG CAROLTAA ACTION AS AN
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Our Order dated February 23*, 1979 was issued pursuant to the provisions M3 of 10 CFR S2.751a, and re@ed Intervenor Carolina Action as well as =iii iisR, other parties "to proceed expeditiously with discovery." Carolina Action F"'
. =::. . . =
has failed to co: ply. 5
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'On March 16, 1979, interrogarn in were served by the Applicant, and i.-imi.
ans a rs were due April 4.
Despite 1etters requesting esponses, none has h, E:.'
been provided by Carolina Action, nor has it othenvise participated in ' f
=w this proceeding. It thus appears that this Intervenor does not intend to .I. . .
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assist in developing a sound record in this proceeding, nor to unke a [.~. ..
valuable contribution to our decision-a:aking process. Accordingly, the -
Applican' 's cotion to didas is granted and Carolina Action is diedesed M as an intervening party or an active participant in this proceeding (10 CFR f3. .
=5L 52.707). ~?
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IT IS SO ORDERED. 59 IDR UE AICMIC SAFELY AND 55 O
LICES"5ING BOARD Mi8 4 1 C Dated at Bethesda, Maryland Marshall E. Miller, Cbnim'n P
this 23rd day of Lf 1979. i.::
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NUCLEAR REGULATORY COMMISSION
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- wa Before the Atcmic Safety and Licensing Board i:!!!!3
, we nai !!!w In the Matter of Es
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OHIO EDISON COMPANY, ET AL. ) Docket Nos. STN 50-580 Mid
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50-581 I!!!!^
(Erie Nuclear Plant, ) [ii$
Units l'and 2) ) 5.i"M
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ORDER TO SHOW CAUSE -!!f RELATIVE TO DISMISSAL @
i!!iff The Board was put on notice last spring th-
..f Evelyn Stebbins' health would not permit her to remain i active in this proceeding and a lack of funds and absence
=a of leadership were hampering the activity of the Coalition 3.f.f -
For Safe Electric Power in its participation. The Board's y
>mg Orders directing response to Applicants' and Staff's ni)q interrogatories were ignored by tha Intervenors. By Orders . $. y. .
- r dated April 20, 1978, and January 22, 1979, i.be Board dis- 7 missed all the contentions of these Intervenors. "
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On February 16, 1979, the Applicants moved for g.;.;
rH.lli' dismissal as parties te the proceeding. The Staff supported i..??
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the motion on March 7, 1979. Applicants supplemented its
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Intervenors Evelyn Stebbins and the Coalition For Safe ?M" .
t,,",,: , m Electric Power are dismissed from this proceeding under (.yis!
cnm 10 CFR 2.707, ten (10) days from the date of this Order unless li!i$ig nin!!!
fe4fff good cause is established prior to that date. 6.Ty vms e -
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<Hiu FOR THE ATOMIC SAFETY AND !Y iv. i. -
LICENSING BOARD @E nk.
w ow-riat GRM.Mw Elizdbeth S. Bowers, Chairman
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?????N Daced at Bethesda, Maryland !.s.y(
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This 12th day of March 1979. ?#:...
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