ML20011A692
| ML20011A692 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 10/23/1981 |
| From: | Murphy P COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8110290295 | |
| Download: ML20011A692 (10) | |
Text
c UNITED STATES OF AMERICA l
pggTED NUCLEAR REGULATORY COMMISSION' BEFORETHEATOMICSAFETYANDLICENSINGBOARQja d 3 PiiO4 0FFICE OF SECRETA 3!
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00CKETlHG & SERVh
mRANCH In the Matter of
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COMMONWEALTH EDISON COMPANY
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Docket ~Nos. 50-454-OL
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,s.hS' MOTION OF COMMONWEALTH EDISON-COMPANY FOR SANCTIONS
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N Commonwealth Edison Company
(" Edison"), by its attorneys, moves this Board for the entry of an Order im-posing sanctions on intervenors, DeKalb Area Alliance for Responsible Energy ("DAARE") and the Sinnissippi Alliance for the Environment
(" SAFE"),' pursuant to Sections 2.740 and 2.707 of the NRC's Rules of Practico.
As is set forth below, DAARE-SAFE has filed incomplete answers to Edison's interrogatories in spite of two separate and unequivocal directions by the board that responsive answers be provided.
BACKGROUND 1.
On March 26, 1979, the Nuclear Regulatory Commission
(" Commission") granted DAARE-SAFE's petition to
-participate in the Byron operating ~ license proceeding.
On Sph 1D $01 8110290295 811023')
PDR ADOCK 05000454:
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, i July 30, 1979, DAARE-SAFE filed its first set of Contentions.
. Although'DAARE-SAFE-revised-and supplemented these Contentions several times, the Contentions remained essentially as they existed at that date.
On December 19, 1980, the Licensing Board formally opened discovery by admitting most of DAARE-SAFE's Contentions.
Since that time, DAARE-SAFE has initiated no discovery requests.
2.
On July 8, 1981, Edison served written inter-rogatories on DAARE and SAFE, inquiring primarily into the factual bases for the DAARE-SAFE contentions, any evidentiary support for such contentions DAARE and SAFE intend to present at hearing, and the identity of the persons expected to be called by DAARE and SAFE as witnesses at the hearing in this proceeding.
These interrogatories are attached hereto as Exhibit A.
Having received no answers or objections to the interrogatories, Edison moved, on July 30, 1981, for an order compelling responses to discovery.
By Order dated August 18, 1981, the Board granted Edison's motion to compel discovery and ordered DAARE and SAFE to file responsive answers tO interrogatories " forthwith".
3.
On October 2, 1981, still having received no answers or objections to the interrogatories, Edison initiated a conference call with Judges Miller and Cole of the Atomic Safety and Licensing Board and Dr. Bruce von Zellen, repre-senting DAARE and SAFE.
In this conference. call, Judge Miller directed DAARE and SAFE to file " responsive answers" on or'before October 13, 1981.
(Transcript, p. 18).
On a-.
October 13, 1981, Edison received a letter, attached hereto as Exhibit B, from Dr. Bruce W.
von Zellen, representing DAARE-SAFE.
This letter purported to be a " response" to Edison's Interrogatories. However, the response failed to even attempt to answer interrogatory la, which requested (in part)
"a concise statement of the facts supporting each cor.ention. "
The response merely listed persons that DAARE-SAFE had not even contacted to appear as witnesses.
4.
Hearings are required at the operating license stage only at the request of an intervenor, who sets forth "one valid contention" raising factual issues.
Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2),
ALAB-130, 6 AEC 423 (1973).
Although an. applicant has the ultimate burden of proof, an intervenor has the burden of coming forward with sufficient evidence to make a hearing worthwhile.
Pennslyvania Power and Light Co. (Susquehanna Steam Electric Station, f* nits 1 and 2), ALAB-613, 12 NRC 31'/
(1980).
Indeed, the Commission is even considering requiring intervenors to set forth facts supporting its contentions as a condition for intervention.
(46 FED. REG. at 30349).
The fact that over 2-1/2 years after gaining leave to intervene, over 10 months after the formal opening of discovery, and over two months after a Board order compelling discovery, DAARE-SAFE has not come up with one fact to support its contentions demonstrates how poorly DAARE-SAFE has performed its obligations as a party to this proceeding.
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~4-5.
Even though DAARE-SAFE has failed to comply with two direct Board orders, Edison does not rely on that fact alone in making this motion.
DAARE-SAFE's entire pattern of conduct -- ignoring Board orders, failing to file appearances, failing to request discovery -- demonstrates that DAARE-SAFE is unlikely to make any contribution to the hearing process.
6.
Given the November 1 discovery cutoff date, DAARE-SAFE's lack of participation has already made it impossible for Edison to undertake any further meaningful discovery and has seriously prejudiced Edison in its effort to marshall evidence to meet whatever factual issues DAARE-SAFE may later claim to have raised.
7.
Under 10 C.F.R. 2.707, a party in default may be precluded from undertaking any discovery, or alternatively, may be precluded from controverting such facts as Edison may present by way of summary disposition or at the evidentiary hearing with respect to the DAARE-SAFE's contentions.
But the more appropriate remedy here is simply to dismiss DAARE-SAFE.
In the past, licensing boards have dismissed intervenors who are unable or unwilling to shoulder their responsibilities as parties.
Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813 (1975); Public Service Electric and Gas Co. (Atlantic Nuclear Generating Station, Unit' 1 and 2), LBP-75-62, 2 NRC 702 (1975); Gulf States Utility Company (River Bend Station, Units 1 and 2), ALAB 358, 4 NRC 558 (1976); Northern States
Power Company (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298 (1977).
By not answering Board orders, not initiating discovery, not coming forward with any facts, and failing to comply with procedural rules, DAARE-SAFE has demonstrated its own incapacity to participate meaningfully in the Byron operating license proceeding.
WHEREFORE, Edison moves this Court to enter an order:
A.
Imposing the following sanctions:
1.
Dismissing DAARE-SAFE as a party to this pro-ceeding; or 2.
Prohibiting DAARE-SAFE from conducting dis-covery in this proceeding; or 3.
Precluding DAARE-SAFE from controverting such facts as Edison may present by way of summary disposition motion or at the evidentiary hearing with respect to DAARE-SAFE's contentions.
DATED:
October 23, 1981 Respectful O bmitted)
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,G A
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Paul M.
Murphy
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Attorney for Applicant, Commonwealth Edison Company Michael I. Miller Paul M. Murphy Alan P.
3ielawski ISHAM, LINCOLN & BEALE One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 558-7500
^
EXIIIBIT A INTERROGATORIES 1.
With respect to each Contention advanced by DAARE and SAFE which has been admitted by the Atomic Safety and Licensing Board in the above-captioned proceeding, list the following:
a.
A concise statement of the facts supporting each Contention together with references to the specific sources and documents and portions thereof which have been or will be relied upon to establish such facts; b.
the identity of each person expected to be called as a witness at the hearing; c.
the subject matter on which the witness is expected to testify; d.
the substance of the witness's testimony.
2.
With respect to each witness identified in the League's response to Interrogatory ] above, identify each document which the witness will rely upon in whole or in part in the preparation of his testimony or in the development of his position.
3.
With respect to each witness identified in the League's response to Interrogatory 1 above, identify the witness's qualifications to testify on the subject matter on which the witness will testify.
-4.
Identify all persons who participated in the preparation of the answers, or any portion thereof, to these Interrogatories.
?
EXIIIBIT B RESPO:JSE TO C0!20!MEALTH EDIS0!! C0!IPNIY'S FIRST ROUl:D OF INTERE0GATORIES TO BE MISWERED BY DAARE MID SrfE DA/JE-SAFE is in the process of developin~ a list of persons expected to provide testhony. The list of possible witnesses includes, but, is not limited to:
Mr. Javid 6tahr - Illinois Public acticn Council (contentien 1)
Dr. iiichard.' ebb - Toledo, Ohio (Contention h)
Dr. Earl Gulbransen - Pittsburgh, ?A (Contentien 6 6 7)
Dr.1:arl Z. Morgan - Atlanta, GA (:ontentien 2 and 2a)
- r. Robert Pollard - Union of Concerned Scientists (Contention 9c) lis. Mari2yn Shineflug - Illinois Safe uergy Alliance (Contention 8)
Ils.1:ay Quigg - Pollution 6 Envimnnental Proble=s (Contention 3)
. Ms.1:ay Drey - St. Louis, MO (ontention 9c)
Dr. Rostlie Berte11 - Buffalo, New York (Contention 2 & 2a)
DldT.E-d.G has not, contacted these witnesses and has no kr 71 edge of the specifics of their testimony or what documents they will rely upon, or even if they nould agree to test.ify.
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-CERTIFICATE OF SERVICE The undersigned, one of the attorneys for Common-l wealth Edision 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.
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DATE:
October 23, 1981 l ?izu. 'hlh%t'Nty Paul M. ' Murphy f
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i COMMONNEALTH EDISON COMPANY:- Byron Stction I
Docknt Nos. 50-454 cnd 50-455
-1 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 Wnshington, D.C.
20555 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 Washington, D. C.
20555 U.
S. Nuclear 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 Chief. Hearing Counsel ~
Ms. Betty Johnson Office of the Executive Legal 1907 Stratford Lane Director.
Rockford, Illinois 61107 U. S. Nuclear Regulatory Commission Washington, D.-C.
20555
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M3 Diane Chavez SAFE 602 Oak Rockford, Illinois 61104 Dr. Bruce von Zellen D3partment of Biological Sciences Northern Illinois University DeKalb, Illinois 60115
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