ML20113H721

Response Opposing Applicant Motion for Sanctions Re Discovery.Certificate of Svc Encl.Related Correspondence

ML20113H721
Person / Time
Site:	Hope Creek
Issue date:	01/22/1985
From:	Remis S, Shapiro R, Thurber J NEW JERSEY, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
CON-#185-253 OL, NUDOCS 8501250279
Download: ML20113H721 (13)

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9 CORR Y UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION _ ,

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Before the Atomic Safety and Licensing Board -

Public Service Electric and Gas  :

Company i  : Docket No. 50-354-OL i-(Hope Creek Generating Station)  :

INTERVENOR'S RESPONSE TO

! APPLICANTS' MOTION FOR SANCTIONS -

. INTRODUCTION On December 21, 1983, the Board issued a Special Prehearing Conference

) Order that, inter alia, directed the parties to commence discovery immediately and adopted the following framework to resolve discovery disputes:

i j "All parties are directed to confer directly with each other regarding alleged deficiencies in discovery before resorting

. to motions involvin;r the BoardT To this end, voluntary Tiscovery and disc osure are highly encouraged. All l motions involving discovery controversies shall describe fully the direct efforts of the parties to resolve such disputes themselves." (emphasis added).

i Public Service Electric & Gas Company (Hope Creek Generating Station),

Docket No. 50-354-OL, Special Prehearing Conference Order at 19; Texas

! Utilities Generating Company-(Comanche Peak Steam Electric Station, Units ,

1 and 2), LBP-81-22,14 NRC 150,156 (1981) (incorporated into the Special Prehearing Conference Order by reference.);

On December 17, 1984, the Board held a s.econd prehearing conference at which it established an expedited discovery schedule and again empha-sized that the parties must " confer directly and immediately regarding -

all discovery matters or any other subject of motions.to endeavor .to i

resolve them, not to file motions until they had and could recite what 8501250279 50122 PDR ADOCK 0 354 '

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O efforts had been made and the like." Public Service Electric & Gas

., Company (Hope Creek Generating Station), Docket No. 50-354-OL (Dec. 17, 1984), Transcript at 249-250. The Board's procedural ,

directive to employ informal discussions between counsel to resolve dis-covery objections was emphasized throughout the prehercing conference.

The framework established by the Board directed that counsel confer among themselves to discuss differences, and only as a last resort after good faith negotiations, should a party seek the Board's inter-vention. See Transcript at 383 (parties directed to discuss discovery differences among themselves in the first instance); Tr. at 396 (parties directed-to "[g]et together and work it out"), Tr. at 401 (parties ordered to cooperate and confer to ensure discovery concerns are accommodated);

at 404-405 (parties should explain problems with interrogatories tele-phonically before going to the Board); and Tr. at 406 (principle is restated that parties get together and reasonably work out arrangement to receive necessary discovery). The Board established this framework to resolve discovery objections because, in its view, parties can informally resolve

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differences, in the vast majority of instances, without needlessly embrofling the Board in their disputes. Tr. at 383.

Pursuant to this directive, when the Appleants' responses to Inter-venor's interrogatories were deemed evasive, incomplete, and inadequate, the Intervenor immediately contacted the Applicants to ask them to supplement their responses before seeking relief from the Board.- (See letters of January 8,1985, and January 9,1985, from John Thurber to Jessica Laverty) . Similarly, on every other occasion prior to the present motion for sanctions, all differences or disagreements relating to discovery were first discussed between the Applicants and Intervenor. As a consequence, 0

the parties were able to identify and remedy nearly all differences without the necessity of the Board's intervention. Additionally, the areas of remaining disagreement were crystalhzed by the parties for resolution by .

the Board. The process ensured a fair and effective means of facilitating the . successful' settlement of discovery disputes.

In light of this background and the Board's explicit commands in this area, Intervenor was astonished when Applicants filed a motion for sanctions without discussing with the Intervenorg of the matters set forth in their

. motion . Specifically, Applicants never advised the Intervenor that any re-

' sponse to -the interrogatories was evasive, iricomplete or inadequate. Nor did Applicants ever suggest to Intervenor prior to the motion that they were dissatisfied with any of the Intervenor's responses. Instead, Applicants

, apparently chose to disregard prior practice and procedure between the parties, as well as' the Board's directives, in seeking the dismissal of Intervenor's contentions for alleged discovery defects that had never been previously disclosed to the .Intervenor. In short, the motion for sanctions represents the first effort on Applicants' part to advise the Intervenor of any alleged deficiencies in his responses to their interrogatories.

Significantly, once the Intervenor was advised of the Applicants'-

objections, he supplemented the responses to the interrogatories in an effort to address each of the Applicants' concerns. These responses have been filed contemporaneously with the Interven'or's present response.*

• As Intervenor states below, the Applicants' motion should be denied.

.However, in light of these responses, the Board may decide that it is not

. necessary to consider the Applicants' motion until the Applicants can demonstrate that they have followed the Board's procedures for resolving alleged deficiencies in discovery and the Board concludes that the Intervenor has failed to address the Applicants' concerns in a proper manner.

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ARGUMENT

, DISMISSAL IS NOT WARRANTED BECAUSE THE INTERVENOR WAS NOT AND IS NOT IN DEFAULT OF ANY OF HIS OBLIGATIONS .

The Applicants filed their motion for sanctions in flagrant disregard

'of the explicit procedure this Board painstakingly established for resolving objections to discovery. Instead of making a good faith attempt to contact the Intervenor to resolve differences informally, the Applicants ignored this Board's commands and prior practice between the parties by immediately seeking dismissal of the entire OL proceeding. If the Applicants had properly followed the Board's directives, they could have pointed out to the Intervenor the alleged deficiencies in his responses and sought correction of them. As in the past, this process would have enabled the parties to resolve their

-differences informally and expeditiously. Additionally; it would have placed the Intervenor on notice of where its responses should be supplemented in order to address the concerns of the Applicants. As is evident by the Intervenor's contemporaneous submisssion of supplemental responses, the Intervenor would have in good faith sought to respond to the Applicants' objections if they had been properly identified.- Indeed, the Intervenor has now responded to every objection raised in the Applicants' motion for sanctions, and there is no present allegation 6f evasive, incomplete or.

inadequate responses. Since the Applicants have chosen to ignore .the I Board's procedure, it is disingeneous .and unfair for them to seek sanctions against the Intervenor. . Applicants seek a reward for euchring Intervenor j l

with.their silence; however, discovery is not a game where trickery should j i

be a substitute for the frank and informal discussion of disagreements. ]

I- Even if this Board were to consider the merits of the Applicants

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i motion, the Intervenor submits that sanctions are simply inappropriate  :

I under the circumstances of this case. It must be emphasized that sanctions

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are only appropriate, "[w] hen a participant fails to meet its obligations."

Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8,13 NRC 452, 454 (1981). Under the expedited discovery schedule, the .

Intervenor has fully cooperated with the Applicants in seeking to resolve any discovery disputes brought to the Intervenor's attention. Contrary to the Applicants' assertions, the Intervenor has taken a very active, I

participatory role in this process -- including the prompt supplementation i

of responses to interrogatories -- and has not " shirked its responsibilities t

as a party" (Applicants' Motion for Sanctions at 15) once he has been

' properly apprised of the Applicants' concerns.

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In sum, Intervenor has made a good faith effort to respond promptly to its obligations under the Board's expedited discovery schedule.

Applicants are simply trying to convert their disregard for the Board's procedures into a basis for dismissal of the Intervenor's contentions.

Additionally, they ignore the record of the past month, and Intervenor's immediate willingness to seek to resolve the discovery disputes when he has been properly notified in accordance with the Board's directives.

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Furthermore, Applicants blithely > disregard the fact that when they clearly defaulted in their obligations, the Intervenor did not run to the Board without consulting the Applicants and ascertaining the reasons for the belated response. (See Letter of John P. Thurber, dated December 31,

. 1984, to Richard Fryling).*

!~ -* This ' letter confirms the fact that Applicants were five days late in I responding to the Intervenor's Second Set of Requests For Production l~, of Documents. Ironically,- Applicants have still failed to provide their responses in a timely fashion to Intervenor's Third Set of Interrogatories and Request For Production of Documents, which were due on January 18, t 1985.

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. Finally, dismissal is a " serious step that generally should be reserved for 'the most severe failure of a participant to meet its obligations'."

Wisconsin Electric Power Company (Point Beach Nuclear Power Plant, Unit ,

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1), ALAB-78,17 NRC 387, 392 (1983), quoting Commonwealth Edison Co.

e l (Byron Nuclear Power Station, Units 1 and 2), ALAB-678,15 NRC 1400, 1406 (1982), and Applicants have failed to provide any relevant precedent '

to support their bald assertion that they are entitled to the most drastic l i

order of dismissal in the circumstances of the present case.*

-* All of the cases that Applicants cite in their motion for sanctions involve intervenors who deliberately and flagrantly refused to answer interrogatories in the face of explicit Licensing Board orders which compelled such a response. In contrast, the Intervenor in the instant case promptly provided supplemental answers to the Applicants' inter-rogatories after being advised of the Applicants' objections and prior to

, any motion to compel by the Board.

For example, in Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), Docket 50-387 (May 20,1981), on at least six' different occasions, the intervenor was granted relief from time require-2 ments in responding to discovery requests, and the Board noted that the record is " replete with examples of having to compel responses and post-

- poned filing deadlines." Id. at 26. The Board dismissed certain conten-

tions because it concludecf"that the intervenor deliberately attempted to delay the proceeding. Id. at 26. Similarly, in Offshore Power Systems (Manufacturing License Toi Floating Nuclear Power Plants), LBP 75-67, 2 NRC 813 (1975), the iritervenor refused to answer interrogatories,

failed to even respond to the applicant's motion to compel, ignored the Board's order to compel answers, and advised the applicant's counsel

. that it made a " firm decision" that it would not proceed .with discovery.

I Id. at 814-815.

In stark contrast to all of the cases cited by the Applicants, the Intervenor in the instant proceeding has submitted timely responses to the Applicants' discovery requests, has been extremely cooperative in addressing the Applicants' objections to. discovery, and is complying with this Board's expedited discovery schedule.

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Intervenor further notes that other cases the Applicants cite to support the imposition of sanctions either specifically declined to dis-

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miss a party for failure to respond to interrogatories, Commonwealth-l Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC 1400 (1982), .do. not even involve sanctions, Pennsylvania Power and Light Co. , (Susquehanna Steam Electric Station, Units 1 and 2),

ALAB-613,12 NRC 317 (1980), or have been explicitly reversed by the

. Atomic Safety and Licensing Board, Commonwealth Edison Co., (Byron

. Ruclear Power Station, Units -1 and 2), LBP-81-52,14 NRC 901 (1981).

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4 CONCLUSION For the above reasons, the Intervenor respectfully submits that the Applicants' Motion for Sanctions should be denied. .

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Respectfully submitted, JOSEPH H. RODRIGUEZ PUBLIC ADVOCATE FOR THE STATE OF NEW JERSEY By: / (([ k>

pichard E. Shapir6 Q r Susan C. Remis 2_ m / '

in P. Thurber' Date: January 22, 1985 t

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.. mf State of New ilersey DEPARTMENT OF THE PUBLIC ADVOCATE DIVISION OF PUBLIC INTEREST ADVOCACY .-

CN 850 . s JOSEPH H. ROD 8uGUC TRENTON, NEW JER$EY C8825 puCHAsip g, 3 Hap,:-

i PUBUC ADVOCATE DPEC'OP TEL: GM92.Mit January 8, 1985 l

Ms. Jessica.H. Laverty Conner and Wetterhahn -

1747 Pennsylvania Avenue, NW Washin~gton, DC 20006 .

Re: In the Matter of Public Service Electric and Gas Company (Hope Creek Generating Station)

Docket No. 50-354-OL ,

Dear Ms. Laverty:

This letter confirms our telephone conversation of January 2, 1985, during which you and Richard Fryling of PSE&G discussed with me the Intervenor's objections to the adequacy of Applicants' responses, dated December 28, 1984, to "Intervenor's Second Set of Interrogatories and Request for Production of Documents to Applicants." This letter identifies all of the agreements we .

reached regarding these, responses.

With regard to Interrogatory I. 36, we agreed Applicants

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would supplement their response by providing the information We also re-quested by the third sentence of this interrogatory.

agreed that Applicants would provide the "information sought by the second sentence of this interrogatory after Intervanor supplements his answer tio Applicants' interrogatories regarding the substance of his experts' testimony.

With regard to Intervanor's concern over the sufficiency and specificity of-Applicants' response to Interrogatory III. 6, you stated that all of the suggestions made by the NRC were -

contained in the documents referenced by your response.

With regard to Interrogatory III. 7, you stated that Applicants were unwilling to discuss any possible modification of the response to this interrogatory due to yourposition that the information regarding Salem sought by the interrogatory was irrelevant to any of Intervenor's contentions.

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t Ms. Jessica Laverty January 8, 1985 With regard to Intervenor's concern that the Applicants'-

response to Interrogatory III. 8 was unresponsive, you stated '~ 4 - ~ '# '

that all of the requested information was contained in the referenced documents.

Similarly, with regard to Intervenor's concern that the Applicants' response to Interrogatory III. 9 was inccmplete, you stated that all of the requested documents had been identified in the referenced. response to Interrogatory III. 3.

With regard to Intervenor's concern that the Applicants' response.to Interrogatory III. 11 was incomplete, you stated that all of the requested information was contained in the .

r6ferenced documents.

With regard to Interrogatory III. 14, we agreed that Applicants would supplement their response by providing the

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information requested by the third sentence of the interrogatory, We also agreed that Applicants would provide the information .

sought by the second sentence of this interrogatory after Inter-venor supplements. his answer to Applicants' interrogatories regarding the substance of his experts' testimony.

With regard to Interrogatory III. 47, we agreed that Applicants would supplement their responses by providing specific course information.

With regard to Interrogatory V.10, we agreed that Appli-

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cants would provide the requested specific informstion.

Finally, with regard to Interrogatory V. 22, we agreed that Appli, cants would supplement their response by providing the information requested by the third sentence of the ' inter-rogatory. We also agreed that Applicants would provide the

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information sought by the sec'ond sentence of this interrogatory after Intervenor supplements his answers to Applicants' inter-rogatories regarding the susbstance of his experts' testimony.

Sincerely, -

I y R M /sp JOHN P. THURBER Assistant Deputy Fublic Advocate JPT/ap l cc: Service List l

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k :q ffate of New ifersey DEPARTMENT OF THE PUBLIC ADVOCATE DIVISION OF PUBLIC INTEREST ADVOCACY -

CN 850 JOSEPH H ROD 8tlGUEZ TRFNTON. NEW JERSEY 08625 RfCMARD E. SHAPIRO PUBLIC ADvCCATE CITECTCA TEL: 6C3 *i2-1tM January 9, 1985 l

Ms. Jessica Laverty '

Conner and Wetterhahn 1747 Pennsylvania Avenue, NW Washington, DC 20006 Re: In the Matter of Public Service Electric and Gas Company (Hope Creek Generating Station)  ;

l- Docket No. 50-354-OL .

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Dear Ms. Laverty:

1 This letter confirms our telephone conversation of l i January 4,1985, during which you and Richard Fryling of PSEEG l discussed with me the Intervenor's objections to the manner in '

which Applicants had responded to Interrogatory III. 18 of the i Intervenor's Second Set of Interrogatories and Request for Pro-l~

duction of Documents. Specifically, I scated.that the Public Advocate objected to the -unilateral deletion of the phrase "all l staff and" from the interrogatory as it was restated by Applicants l in their response. I also stated that the answer provided to this l reworded interrogatory was.therefore inadequate and unres mnsive.

We agreed that Applicants would. supplement their response l j

l to this interrogatory by providing a list of all non-bargaining i unit positions, including all supervisors, managers and professionals,I *

. that are currently open or unfilled. l 1

Sincerely, l

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N P. THURBER J

A istant Deputy Public Advocate i

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DEPARTMENT OF THE PUBLIC ADVOCATE DIVISlON OF PUBLIC INTEREST ADVOCACY ,,

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JOSEPH H. RODRIGUEZ TRENTON, NEW JERSEY 08625 RICHARD L SHAPIR*

PUBUC ADv0CATE

• DIRECTOR TEL: 406-1821Ef2 December 31, 1984 Richard Fryling, Esquire -

Associate General Solicitor . .

PSEiG P. O. Box 570 (T5E).. .

Newark, NJ 0*7102 Re: In the Matter of Public

! Service Electric & Gas Company -

(Hope Creek Generating Station)

Docket No. 50-354-OL -

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Dear Mr. Fryling:

This letter.is to confirm our discussion of Friday, -

December 28,1984, .in which you. informed me that the documents.~ -

requested by the, Public Advocate in his Second Set of Inter-rogatories ahd Request for Production of Documents would .not l

be made available to the Public Advocate for inspection or l copying until Wednesdaf, January 2,1984. -

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'Y3ET' Sincerely yours,

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, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '

Before the Atomic Safety and Licensing Board h ~

PUBLIC SERVICE ELECTRIC  :

AND GAS COMPANY

Docket No. 50-354-OL (Hope Creek Generating Station)

CERTIFICATE OF SERVICE I hereby certify that copies of "Intervenor's Response To Applicants' Motion For Sanctions" dated January 22, 1985, in the above-captioned matter have been served upon the following by deposit in the United States mail on this 22nd day of January,1985:

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• Marshall E. Miller, Esq. Atomic Safety and Licensing Appeal Panel Chairman Atomic Safety and Licensing U. S. Nuclear Regulatory Board Panel Commission U. S. Nuclear Regulatory Washington, DC 20555 Commission East-West West Building Docketing and Service West Tower, Room 408 Section i 4350 East-West Highway ., Office of the Secretary Bethesda, Maryland 20814 U. S. Nuclear Regulatory Commission -

l *Dr. Peter A. Morris Washington, DC 20555 i Atomic Safety and Licensing

Board Panel

• Lee Scott Dewey, Esq.

U. S. Nuclear Regulatory ~ Office of the Executive .

[ Commission Legal Director _

East-West West Building U. S. Nuclear Regulatory i West Tower, Room 408 Commission

! 4350 East-West Highway . Room 10209 Bethesda, Maryland 20814 7735 Old Georgetown Road Bethesda, Maryland 20814 l

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• ZAP Mail

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Dr. David R. Schink Texas A & M University Oceanography & Meteorology Building Room 716 College Station, Texas 77840 .

• Richard Fryling, Jr. , Esq.

Associate General Counsel Public Service Electric & Gas Company 80 Park Place Newark, NJ 07101

• Troy Conner, Jr. , Esq.

Conner & Wetterhahn 1747 Pennsylvania Ave. , N.W.

Suite 1050 -

Washington, DC 20006

~ Peter Hess, Esq.

Dept. of National Resources and Environmental Control Legal Office 89 Kings Highway Dover, DE 19901 Mr. Ken Koschek .

Planning Group Department of Environmental Protection State of New Jersey CN-402 Trenton, NJ 08625

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/ RICHARD E. SHAPIRO 9

January 22, 1985 t

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