ML20011A338

Motion for Order Imposing Sanctions on Rockford League of Women Voters,Dismissing League,Prohibiting League to Conduct Discovery & Precluding League from Controverting Util Facts. Certificate of Svc Encl

ML20011A338
Person / Time
Site:	Byron
Issue date:	10/02/1981
From:	Mark Miller, Mark Miller, Murphy P AFFILIATION NOT ASSIGNED, COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE
To:	NRC COMMISSION (OCM)
References
NUDOCS 8110090329
Download: ML20011A338 (13)

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In the Matter of )

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COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-454

) 50-455 (Byron Nuclear Power Station, )

Units 1 and 2) )

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, MOTION OF COMMONWEALTH EDISON COMPANY FOR SANCTIONS Commonwealth Edison Company (" Edison") , by its attorneys, moves this Board for the entry of an Order imposing i

l sanctions on intervenor, Rockford League of Women Voters

(" League"), pursuaa+ to Sections 2.740 and 2.707 of the NRC's Rules of Practice.

J' In support of this motion Edison asserts the following:

1. On July 8, 1981 Edison served written interrogatories on the League, inquiring primarily into the factual basis for the League's contentions, any evidentiary support for such contentions 4

the League intends to present at hearing and the identity of the persons expected to be called by the League as witnesses at the hearing in this proceeding.

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2. Having received no answers or objections to the interrogatories, Edison moved, on July 30, 1981, for an order compelling responses to discovery. On August 5, 1981 the League objected to all interrogatories. By order dated August 18, 1981 this Board overruled the League's objections and granted Edison's motion to compel discovery subject only to a requirement that the parties confer regarding the answers.

3. On August 25, 1981 and again on September 3, 1981, counsel for Edison conferred on the telephone with counsel for the League in an effort to reach agreement regarding a time within which the League would answer the outstanding interroga-tories. (See Exhibit A hereto, a letter from Paul M. Murphy to Peter Flynn dated September 4, 1981). The parties agreed to meet on September 10 for purposes of continuing these negotiations. On September 10, 1981 Myron Cherry, on behalf of the League, met with Paul Murphy, on behalf of Edison. On that date Mr. Cherry represented that h3 was not yet in a position to provide a date certain within which interrogatories would be answered.

4. On September 15, Mr. Cherry and Mr. Murphy met again to discuss the date within which Edison could expect answers to its interrogatories. On that date Mr. Cherry agreed to supply written answers to the July 8, 1981 interrogatories  ;

1 not later than October 1, 1981. (See Exhibit B hereto, a letter from Paul M. Murphy to Myron M. Cherry dated September 16, 1981.)

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s 5. At the end of the business day on October 1, 1981, Edison had not yet received answers to interrogatories.

Mr. Murphy called Mr. Cherry to inquire whether it would be convenient for Edison to send a messenger to pick up answers to interrogatories. Mr. Cherry asserted that he did not have any answers to the interrogatories. Further, Mr. Cherry stated he would not provide answers to the outstanding interrogatories until and unless Edison was willing to make concessions to the League in connection with a dispute between the League and Edison in a matter pending before the Illinois Commerce Commission. On October 2, 1981, Mr. Murphy informed Mr. Cherry that Edison would initiate a telephone conference call with the Licensing Board for the purpose of seeking appropriate relief with regard to the unanswered interrogatories.

6. On October 2, a call was initiated to Mr. Cherry to determine a suitable time for the conduct of the telephone conference call. Mr. Cherry asked that for his convenience the call be scheduled after noon, C.D.T. and he was informed that the call would be placed at 1:45 P.M. C.D.T. At 1:30 P.M.

C.D.T. Mr. Cherry's office called the office of counsel for Edison and stated that Mr. Cherry "cannot participate in the conference call today."

7. The conference call was conducted beginning at approximately 1:50 P.M. C.D.T. with all parties participating except counsel or other representative of the League. At the l

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f conclusion of the conference call the Board requested that Edison present a written motion concerning the outstanding written interrogatories to the League.

8. The League has obviously and wilfully flaunted this Board's Order of August 18, 1981 (requiring that the interrogatories be answered promptly) and has reneged on its obligation to supply the answers by October 1, 1981 as it promised. It is clear that counsel for the League regards this Board's Order and its obligations under the Commission's Rules of Practice as negotiable chips in a bargaining process whereby it can coerce Edison into making concessions in other fora. This obviously improper practice should not be lightly

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a j- disregarded by this Board. The league's unlawful abuse of the i

i discovery process and this Board's August 18 Order is compounded by 1

4 the constraints of the existing dis 5overy schedule, under which

{ November 1 has been established as a cut-off date.

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9. The League has filed 146 Contentions with the i'

Board, of which more than 100 have been admitted by the Board.

Because of the League's dilatory tactical maneuvering Edison has been unable to obtain even the most minimal information i

I concerning the factual bases for the League's numerous Con-i tentions. Without that information Edison will be seriously 1

prejudiced in its ability to prepare for depositions of the League's expected witnesses. Indeed, given the November 1

discovery cut-off date, Edison has already been UEJiously i

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prejudiced in its ability to prepare for further meaningful discovery and to present probative evidence dealing with the substance of the League's contentions.

10. Even were Edison not seriously prejudiced by the League's bad faith, the sanctions requested herein would be appropriate to safeguard the integrity of this Board's Orders and the Commission's procedural rules and to deter similar actions by the League or other intervenors in the future. This Board should not permit parties which exhibit such a cavalier attitude towards their discovery obligations to continue to participate in these proceedings.

,11. Edison emphatically does not seek an extension of the November 1, 1981 discovery cut-off date; nor should the League be permitted to avoid the sanctions requested herein on the grounds that discovery can be extended. Unquestior. ably, further delay of these proceedings would be a result satisfactory to the League. The League should not be permitted to benefit from its own obstruction.

12. Failure to comply with discovery orders of a Licensing Board justify dismissal of the party and other appropriate sanctions. In Northern States Power Co.

(Tyrone Energy Park, Unit 1) , LDP-77-37, SNRC 1298, (1977);

Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813 (1975) and Public Service Electric and Gas Co. (Atlantic Nuclear Generating l

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Station, Units 1 & 2) the Licensing Board dismissed intervenors l which failed to respond to discovery in defiance of a Board Order that responses be provided. In Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit No.1), LBP-80-17, 11 NRC 893 (1980) the Licensing Board dismissed most of an intervenor's contentions as ... "rbe least we can impose to regulate the course of the proceeding in ricordance with the law and in the circumstances of this proceeding." ID p. 904.

Alternatively, Section 2.707 contemplates that the party in default not be permitted to conduct discovery. Yet another alternative contemplated by Section 2.707 would preclude the League from controverting such facts as Edison may present by way of summary disposition motion or at the evidentiary hearing with respect to the League's contentions. Finally, under the Federal Rules of Civil Procedure, on which tha NRC's Rules of Practice are based, it is appropriate that the League pay i

the expenses of Edison, including reasonable attorneys' fees incurred in making this motion. (See Rule 37 (a) (4) , Fed. R.

Civ. P.)

WilEREFORE, for all of the foregoing reasons, Edison moves this court to enter an order:

A. Imposing the following asnetions:

1. Dismissing the League as a party to this proceeding; or

2. Prohibiting the League from conducting discovery in this proceeding; or

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3. Precluding the League from controverting such facts as Edison may present by way of sumary disposition motion or at the evidentiary hearing with respect to the League's con-tentions.

B. Assessing reasonable attorneys' fees and costs of Edison in presenting this motion against the League.

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. Paul M. Murph'y

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Attorne'ya for Applicant, Commonwealth Edison Company Dated: October 2, 1981 Coudt.y of Cook )

Sta te of Illinois ) SS Paul M. Murphy, being first duly sworn, deposes and says that he has personal knowledge of the feits set forth in paragraphs 1 through 7 of the foregoing motion d that said facts are true and correct. f l

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. b Paul M. Murphy

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Subscribed and sworn to before me this 2nd day of October, 1981.

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N6tary Public

4 m ISHAM LINCOLN & BEALE f .* COUNSELons AT LAW ONC FIF8St NattONat PLa A ronty.sCCONO FLOOrt CHIC AGO,lLLINOIS 60603 TCLCPHONC 3:t*'3S8 7500 TCLCa

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• ""'~o 'o~ o' r c e September 4, 1981 6:20 CONNECT Cut avthut N w waSwsNGTOP- O C #0038 202 $33-9730 BY MESSENGER Peter Flynn, Esq.

Cherry & Flynn One IBM Plaza .

Suite 4501 Chicago, Illinois 60611 Re: In the matter of Commonwealth Edison Company (Byron Station, Units 1 and 2), Docket Nos.

STN 50-454-OL, STN 50-455-OL. _

Dear Mr. Flynn:

On August 25, we spoke briefly with regard to the Licensing Board's order of August 18 requesting that the parties discuss the League's response to Commonwealth Edison O Company's . interrogatories. At the time, you indicated that you were reviewing the League's contentions for purposes of determining in wh.-t time period you expected to be in a position to answer the intc.rogatories. ' lou also stated you would advise me before the end of the week, that is, before August 28, as to an expected date for your responses. At the time, I suggested the possibility of some consolidation of conten-tions, inasmuch as the contentions now admitted by the Board contain a significant level of duplication and overlap.

Yesterday, we spoke again to discuss discovery. You indicated eat your review of the contentions still continues and you are not yet in a position to state when answers to interroga-tories can be expected. You also indicated that you agreed

' s:ith me that some consolidation of issues might be possible.

• Inasmuch as we are meeting on Thursday, September 10, to resolve I discovery differences in a parallel case now pending before i

the Illinois Commerce Commission, it was agreed we would raise

• the question of responses to discovery in the NRC licensing case at the same time.

I would hope that by the September 10 meeting you vill have made some progress toward responding to our interroga-tories, as you have now had them since July 8, 1981. I enclose l

t EXHIBIT A 9

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I, Peter Plynn, Esq.

Page Two September 4, 1981 herewith a proposed method of consolidating contentions. I would ask that you review these to the extent that time permits and be prepared, if possible, to discuss the enclosed proposal i at our meeting on September 10.

Sincerely, ,.

PMM/js Paul M. Murphy Enclosure One of the Attornays for Commonwealth Edison Company

/"% cc: Steven C. Goldberg, Esq.

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4 Septeraber 16, 1981 Mr. Myron Cherry Cherry & Flynn One IDH Plaza ,

Suito 4501 Chicago, Illinois 60611 ,

Re Commonwealth Ldison Company (nryon Station, Units 1 and 2)

Docket Nos. 50-454 and 50-455 Dest Mr. Cherrys

- This is to confirm our conversation of yesterday regarding pending discovery initiated by Commonwoalth Edison Company and directed at the Rochford League of Women Voters and at DAARE/UAFE. As you recall, on July 8, 1901, Edison

- directed interrogatorios to be answered by the Loague and by DAARE/SAFL. On August 18, 1981, the Licensing lioard entered J),, an Order directing DAARL/ SAFE to answer the interrogatorieu

• l ' forthwith, and directing Edison and the Leaguo to consult rogarding responses to discovery.

I spoke to your partner on August 25 and September 3, and with you on September 10th and yesterday in an effort to obtain a date cortain for answers to our interrogatories, an there did not appear to be any other matter to discuss in view of the Itoard's overruling your objections. Yester' day you agreed to provide ansucro on behalf of the Imague and on behalf of t DAARE/ SATE by October 1, 1981. This date is by no means satis-y4 ,

factory, given that the interrogatorion were served on you on

'l July 8, 1981, and that the Licensing Board overruled your ve' objections to the intorrogatorios on August 18, 1981. However,

.. in view of your representation made on September 10, 1981

( that as of that date nothing had been done towards answering i- 6 ? ,i '- tho interrogatories, it does not now seem that an earlier date is achinvable. We look forward to receipt of answers on

'O chalf of the League and DAARE/ SATE by October 1,1981.

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Paul H. Murphy

• v. Attorneys for )

Commonwealth Edison Company PMM/msb

i cc: Entire Service List EXHIBIT B

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t CERTIFICATE OF SERVICE The undersigned, one of the attorneys for Common-wealth Edison Company, certifies that on this date he filed two copies (plus the original) of the attached pleading with the Secretary of the Nuclear Regulatory Commission and served a copy of same on each of the persons at the addresses shown on the attached service list by United States mail, postage prepaid, with the exception of Mr. Myron Cherry, Esq., who was served by messenger.

DATE: October 2, 1981 O

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• Paul M. Murphy l

COMMONWEALTH EDISOli (JIG ANY - DyrCn SLOticn f

' Dock;t NoJ. 50-454 cnd 50-455 {

g Marshall E. Miller, Esq., Chairman Dr. A. Dixon Callihan Atomic Safety and Licensing Board Union Carbide Corporation Panel P.O. Box Y U.S. Nuclear Regulatory Commission Oak Ridge, Tennessee 37830 washington, D.C. 20555 Mr. Steven C. Goldberg Dr. Richard F. Cole Ms. Mitzi A. Young Atomic Safety and Licensing Board Office of the Executive Legal Panel Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission W chington, D.C. 20555 Washington, D.C. 20555 Myron M. Cherry, Esq. Atomic Safety and Licensing Appeal Cherry, Flynn & Kanter Board Panel One IBM Plaza U.S. Nuclear Regulatory Commission Room 4501 Washington, D.C. 20555 Chicago, Illinois 60611 Atomic Safety and Licensing Board Secretary Panel Attn Chief, Docketing and U.S. Nuclear Regulatory Commission Service Section W:chington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Chief Hearing Counsel Ms.. Betty Johnson l Office of the Executive Legal 1907 Stratford Lane Director Rockford, Illinois 61107 U.S. Nuclear Regulatory Commission W2chington, D.C. 20555 P

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Dr. Axel Heyer Department of Physics Northern Illinois University DeKalb, Illinois 60115

.i Dr. Bruce von Zellen Department of Biological Sciences Northern Illinois University

• DeKalb, Illinois 60115 l

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