ML20011A614

Response Opposing Rockford League of Women Voters Motion for Sanctions.League Should Be Dismissed from Proceeding for Direct Defiance of ASLB Orders.Certificate of Svc Encl

ML20011A614
Person / Time
Site:	Byron
Issue date:	10/22/1981
From:	Mark Miller COMMONWEALTH EDISON CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8110290182
Download: ML20011A614 (9)

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' UNITED STATES' OF AMERICA . .. --

NUCLEAR REGULATORY COMMISS15 ET 26 P1:11 BEFORE THE ATOMIC SAFETY AND LICENSINE EOAFDORETARY bdCMiitiGT SERV:C; BRANCH

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In the Matter of )

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COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-454-OL

) 50-455-OL (Byron Nuclear Power Station, )

Units 1 and 2) )

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COMMONWEALTH EDISON COMPANY'S O N Q' OPPOSITION TO THE ROCKFORD LEAGUE'S U . h ,,

MOTION FOR SANCTIONS AND 4- #,4OCf Qf -

RENEWED MOTION FOR SANCTIONS I /gg ~.

4 ij D 8 Commonwealth Edison Company (" Applicant") by its /f attorneys, respectfully urges the Board to deny the Rock tb League of Women Voters (the " League") Motion For Sanctions, and to dismiss the League from this proceeding forthwith for its direct defiance of the Board's orders. The " Response of Rockford League of Women Voters to Motion for Sanctions" (the " League's Response") served on October 13, 1981 raises only the following issue: Is this proceeding to be governed y a by the Rules of Practice of the Nuclear Regulatory Commis-sion, and orders entered by the Board pursuant to those 9503 Rules, or 12 this proceeding to be governed by the schedule J and personal whim of counsel for the League? The League's ((

Response and Motion for Sanctions exhibit starkly the League's defiance of this Board's authority and make a mockery of P

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• O this proceeding. The facts underlying this motion, as reflected primarily in pleadings previously filed in this proceeding are summarized below.

1. On December 19, 1980, this Board entered an order admitting 114 contentions advanced by the League. In that same order, this Board ruled, pursuant to 10 CFR S2.740(b) (1)

"That discovery shall commence forthwith upon all issues included in the admitted contentions." (Memorandum and Order, dated December 19, 1980, p. 21.) Since entry of that order, the League has initiated no discovery in this proceeding.

2. On July 8, 1981, Applicant served interroga-tories on the League, answers to which were due, by virtue of 10 CFR 2.740b(b), on July 27, 1981.

3. On July 30, 1981, having received no answers or objections to the interrogatories, Applicant filed a motion to compel responses to discovery. Shortly thereafter, on August 5, 1981, the League filed objections to Applicant's interrogatories. The League's objections constituted no more than an assertion that, notwithstanding the Board's order of December 19, 1980, Applicant's attempt to obtain even the most basic indication of the factual issues sought to be raised by the League's contentions was " premature."

On August 7, 1981, the League filed a response to Applicant's motion to compel, the gist of which was that counsel for the League was just too busy to respond to discovery.

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y j l 4. On August 18, 1881,z the Board} entered an

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i ' order, expressly overrulingLthe League's objeict' Ions to

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, Applicant's interrogatories, and advising the?.heague that-. I

,"The involvement of a party's lawyers'in. litigation or gother; e

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. professional business does not excuse noncodipliadde with.nor.

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w extenddeadlinesforcompliance-withourrulEsohpractice." ~~.(

(Memorandum and Order of August 18, 1981i:p. 14.) The' Board,- h. ,f ,

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, further-stated that "The parties will be' allowed a reasonab3e- < = _ ~ ~2

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period of time to confer. However, responsive answers shall ~

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be filed to these ar.d otherlinterrogatiorids ' prxht,1y,,, ands ,

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' discovery shall be conducted expeditiously." 42b'idt emphas'is-7 supplied.) Given that the.. Board-had overruled the League's j

objections to Applicant's discovery, and rejected the League's i

excuses for its failure to provide timelp*resporises to Applicant's discovery, the only possibic subject on'which to

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confer, was a time within'which thu League would resp 6 rid to ,ND y 3.N y discovery, subject of course to the Poard's direction that

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m responses be filed promptly and discovery proceed expeditiously. >

5. Pursuant to the Board's directive, on August 25,

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, , y s 1981, counsel for Applicant contacted counsel 3y for-the League ,

Nv" to ascertain when Applicant could expect answers to its '

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interrogatories. As reflected in Exhibit-A ?to Applicant's "

/ s Motion for Sanctions, counsel for the League represgit'ed

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that he would advise Applicant'by August 28, 1981 of a time #

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T within which answers to the interrogatories could be expected 1 r_. This representation was not complied with.

5 On August 28, the League served on Applicant, e

• ;;?* in connection witti a proceeding now pending before the t

-C "' Illinoi M omme'rce Commission, interrogetories, requests for a:-,  %

production for documents and notices of depositions. It is J k rN' I

e, , that/ discovery,sfjled in a separate proceeding before a

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?- ' different foram, and initiated almost two months after the

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}. '; 1 discovery atfissua here and 10 days after the League had

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,s i been ordered by the Board to respond to Applicant's interroga-

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b lek >'.promptly,"

- y that the League now asserts constitutes

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zgroundv<to disregard this Eoard's explicit orders. The s , s

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[. plain add singis fact of the matter is that the League has

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! .p , ' sw not' initiated any discovery in tSin proceeding since discovery ss- ,

.,'ap w opene.sy d, Acfs^has ^ it responded to any discovery initiated

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~A by 65her parf.ies{Ln spite of this Board's order that it do Lo.

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.' Note that the only, connection between the discovery about l

, which the League complains, and the discovery pending in cm,[ this proceeding, is that for convenience, both matters

- were to'be discussed at one meeting. Even in the very carefull.y selected sampling of correspondence attached i tG the,Icague's Response regarding the discovery now l4 pending before the Illinois Commerce Commission, there is not the slightest hint of any other relationship because no such relationship exists.

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The League's assertion that completion of discovery in 9 , <

the proceeding before the Illinois Commerce Commission lp N,( was an agreed condition to the League's responses to l

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- s' ' ~ Applicant's interrogatories is flatly contradicted by

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Exhibit A to the League's Response. Note that much of l the discovery, including document producticn referred L to therein was not scheduled to take place until after l the-October 1 date for the League's response to Applicant's j interrogatories in this proceeding. Compare paragraph

! _ 4 of the League's Response with paragraphs 6 and 9 of Exhibit A thereto.

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7. The obvious irrelevancy of any disputes Applicant and the League'might have in connection with a

. procee, ding pending in a separate forum to the League's obligation to comply with this Board's Order of August 18, 4  : ~ .

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11981 suggests strongly that the League's Response was filed

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in bad faith, and solely for. purposes of delay. That the League would ask at the same time that this Board impose jI sanctions on Applicant for failing to respond to unidentified a

discovery initiated by the League in a different proceeding, before a different forum can only be interpreted.as an attempt to mock this Board. It is simply.not credible that the League might' seriously expect this Board to resolve discovery disputes arising in some other forum as a precon-dition to enforcing orderly proceedings before itself.3

8. The. League has engaged in a continual process of obfuscation und delay since the inception of this proceeding.

The League has not met a single deadline set by this Board or established by the Rules of Practice; rather, the League has consistently asserted its counsel's allegedly heavy schedule as grounds for repeated extensions of time. (Indeed, having sat idle for the ll-month discovery period in this proceeding, the League has now indicated it will seek an extension of the discovery eut-off established by the Board, i

3 The League denies that it is attempting to extort con-cessions from Applicant in another proceeding as a condi-tion of responding to valid discovery in this proceeding.

We think, however, that it is significant that the League has not sought a ruling from the Illinois Commerce Commis-sion regarding the validity of the discovery pending there. Apparently the League believes it might achieve by indircation with this Beard that which it could not t

achieve before.the Commerce Commission.

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The' League.quite clearlyfb elieves'thatlthis Board'is so -

- unwilling to enforce its uwn orders,.thatLthe. League's refusal-to comply with the schedule setuby.the. Board in

~ itself is. adequate. justification-for adjust of that schedule.-)

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'Juui now : the ' League is asserting a: right to . disregard this

) Board's direct and unequivocal order-based solely.on dissat-isfaction with proceedings in some cther forum.

WHEREFORE , Commonwealth Edison' Company re'spectfully-urges this Board. to deny the League's baseless Motion for Sanction-and to dismiss the Rockford-League of Women Voters 7

from this proceeding forthwith for its direct and unexcusable 1

defiance of this Board's authority and duty to regulate the conduct of this proceeding, 4

l Dated: October 22, 1981 Respectfully submitted, 1 e /

Michael'I. Miller' 4

One of'the Attorneys for Commonwealth Edison CompanyL i

j Michael.I. Miller Paul M. Murphy Alan P. Bielawski.

I ISHAM, LINCOLN'& BEALE One First ' National: Plaza

Suite 4200 3 Chicago, Illinois . 60603 (312).558-7500 I

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l CERTIFICATE OF~ SERVICE The undersigned, one of.the attorneys for Common-wealth Edison Company, certifies that on this dat:. he filed two copias (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.

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October 22, 1981 ' '

DATE:  !

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. . COMMONWEALTH EDISON COMPANY - Byron ~'Sthticn Docket Nos. 50-454 and 50-455

. M;rshall'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 I

. Dr.' Richard F. Cole Mr. Steven C. Goldberg

. Atomic Safety and Licensing Board Ms. Mitzi A. Young Panel Office of the Executive Legal U. S. Nuclear Regulatory Commission Director

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Washington, D. C. 20555 U. S. Nuclaar Regulatory Commission 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 Washington., D. C. 20555 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 4

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Chief Hearing Counsel Ms. Betty Johnson  !

Office of the Executive Legal 1907 Stratford Lane j Director Rockford, Illinois 61107 l U. S. Nuclear Regulatory Commission Washington, D. C. 20555 ,

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, Ms DianesChavez

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' Dr.' Bruce von Zellen

' Department-of Biological Sciences

- Northern Illinois University DeKalb,-Illinois 60115 4-J V

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