ML20039C039

Forwards Unexecuted Mm Cherry Affidavit Re Proposed of Intervention to Be Filed on 811223

ML20039C039
Person / Time
Site:	Byron
Issue date:	12/18/1981
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER
To:	Goddard R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
Shared Package
ML20039C034	List: ML20039C039
References
NUDOCS 8112280345
Download: ML20039C039 (7)

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1 LAW OFFICES CHERRY & F LY N N ONEfBM PLAZA CHICAGO, ILLIN OIS 60611

.sia ... . in December 18, 1981 VIA FEDERAL EXPRESS Richard Goddard, Esq.

U. S. Nuclear Regulatory Commission Office of the Executive Legal Director Mail Stop 9604 Washington, D.C. 20555 Re: In the Matter of Commonwealth Edison Company Byron Station, Units 1 & 2), Dkt. Nos. 50-454, 50-455

Dear Richard:

I enclose a copy of my Affidavit which I intend to file on the 23rd.

The reference to a back and forth letter to Miller in paragraph 11 does not concern the September 26, 1979 meeting and it will be attached with my filed Affidavit, a copy of which I will send to you.

I appreciate your being candid in our conversation concerning the unsupported accusations of Isham, Lincoln & Beale.

Sincer y,

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Myron M. Cherry

, MMC /dm Enclosures 81122j 0$00 PDR , PDRj G i

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD l Before Administrative Judges:

Marshall E. Miller, Chairman Dr. Richard F. Cole Dr. Dixon Callihan In the Matter of ) Docket Nos. 50-454-O L

) 50-455-O L COMMONWEALTH EDISON COMPANY )

)

(Byron Station, Units 1 & 2) )

STATE OF ILLINOIS )

.) SS.

COUNTY OF COOK )

AFFIDAVIT OF MYRON M. CHERRY AS DIRECTED BY BOARD ORDER OF DECEMBER 8,1981 MYRON M. CHERRY, being first duly sworn, on oath states as follows:

1. I am counsel to the Rockford League of Women Voters (" League")

in this proceeding, as well as in two related proceedings (one now on appeal before the Seventh Circuit Court of Appeals and one pending before the Illinois l Commerce Commission), of both of which the Board has knowledge. I have personal knowledge of the matters stated herein.

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2. As appears in the Board's Order of December 8,1981 (at page 2),

the Board is requesting affidavits with respect to the allegation that League counsel announced, even before he was counsel to the League, that his only purpose in representing the League was for delay's sake.

3. At no time in connection with the Byron Plant, whether at the September 26, 1979 meeting referred to or otherwise, have I ever stated, referred, alleged, alluded to or implied that my posture or position as counsel in this (or any other) proceeding would be for purposes of delay.

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4. At the time of the September 26, 1970 meeting ("hereafter September meeting") I had not as yet agreed to represent the League in connection with Byron, but I had agreed, as a courtesy to Ralph Nader, to sit in on a meeting regarding the intention of the League - then unrepresented - to amend its contentions as permitted by an earlier Board Order. At the September meeting the question of whether, and (if so) when, I would enter an appearance for the League arose - principally, I believe, at the request of Commonwealth Edison counsel. I explained to all concerned that I was (as I had earlier advised the League) not entirely persuaded that I should represent the League in its 4

opposition to the Byron Plant before the Nuclear Regulatory Commission. My concerns (which are and have been on record in numerous other forums, including.

the Congress of the United States) were that the Nuclear Regulatory Commission (and earlier the AEC) had displayed a generally hostile posture toward intervenors raising safety and environmental issues in hearings and, therefore, if that climate continued, then an intervention by the League might accomplish nothing and might be a waste of time and resources.1 I did, however, state to those assembled that there were other considerations involved in my decision as to whether I would accept the Byron assignment. Essentially these considerations concerned the status of unresolved safety problems, both generally and as applied to Byron.

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. 1. I might add that I am not alone in these views - critical of past NRC-AEC credibility. Such views have also been expressed by the Kemeny Commission reporting to the President on- TMI; the Nuclear Regulatory Commission review concerning TMI (NUREG/CR 1250); Commissioner Bradford in his October 19, 1981 speech before the Eastern Association of Attorneys General (NRC Press Release S-3-81, Tuesday October 27, 1981); and, as recently as December 15,1981, by . the Chairman of the Commission as quoted on page 1 of the New York Times on that date.

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5. I explained at the September meeting that in my view, if (i) the Nuclear Regulatory Commission could be forced to directly confront the j cssentially insupportable position of conceding the existence of a whole host of unresolved safety problems while nonetheless continuing to license plants; and (ii) i a decision could be issued by the Commission (or t.y a court of law upon judicial review) to halt licensing of nuclear power plants until unresolved problems were resolved (rather than merely studied); and (iii) such a review could be imposed (as

- I believed it should since I believe it to be required by law) upon re-examination of construction permits issued without regard to the resolution of unresolved safety problems (such as the Byron permits) - then by definition the cost of nuclear power would dramatically increase to the real cost of including all 4

adequate and necessary safety and environmental requirements. This additional cost (and perhaps also the time necessary to implement safety resolutions) would 8

. create an even further economic burden on nuclear power and might be a '4-sufficient precedent. to prevent utilities in the future from .considering th .

nuclear option because, when viewed 1with all its real costs, it is and would be

demonstrated to be uneconomical. sThis analysis, while involving' increased . costs

and perhaps delayed (or prevented) operation of unsuitable plants is nothing more i

than an. explication of a fair cost-benefit analysis in assessing the nuclear option .

< - something which has concerned us for some time. (See, e_.g., the EIS

! regarding the ECCS Rulemaking before the AEC.)

, 6. I further stated at the September meeting that as an intellectual i

l matter, the ' issues addressed in paragraph 5 appealed to me because the

[ Commission had admitted to the existence of hundreds of unresolved safety j

problems and would ultimately find it difficult to avoid the resultant

confrontation in licensing. Therefore the overall issue thus presented could be i

considered crisp, . and also legal (as opposed to purely factual), since the L - . . _ . _ _ _ . . _ _ _ _ . . _ _ . _ _ . __ __ _ _ - _ _ _ . . . - . _ _ _. _ . _ _ .

Commission has also conceded that it has no real resolution for the outstanding safety problems. I further informed the participants.that this issue had intrigued me for some time but that I had not decided whether to represent the League given my view (based upon considerable experience in AEC-NRC proceedings) that Licensing Board hearings typically did not deal fairly with seriou's safety issues -

a view which the NRC's own Special Inquiry Group, several months later, bluntly expressed by terming hearings "a sham" insofar as any genuine, open-minded consideration of safety issues is concerned.

7. Ultimately, because of the legal challenge and public interest benefits these issues presented, I accepted the assignment from the League.

Thereafter I concentrated my efforts on the unresolved safety problems and the economic cost and timing of fairly implementing them, as well as on other important specific issues relating to Byron. Contrary to Edison's suggestions of delay, it was I_ and the League who asked Director Denton for a prompt hearing under 10 C.F.R. sec. 2.206 and 2.202 with respect to those issues (moving also in tandem before the Illinois Commerce Commission on similar and related matters).

The Director's response was to wait some six months before he decided our l'etition, a matter now on appeal after several further months of Commission-caused delay in deciding whether to review the Director's decision internally. In parallel, although somewhat earlier, I and the League filed a documented and detailed Petition to Intervene before this Board which was admitted in substantial part; and I and the League promptly moved to initiate discovery against the Staff and Commonwealth Edison. Our discovery requests today still remain unanswered; and as noted in our Petition for Reconsideration, the Board's overall deliberations with respect to the Petition to Intervene occupied the Board for 18 months (March 1980 to August 1981).

8. I believe that if the Nuclear Regulatcry Commission fairly meets 4 the unresolved safety issues in a hearing, then the League will be able to demonstrate that the Byron Plant does not meet existing regulations and that an operating license should not be issued, let alone construction continued pursuant to what I believe is a legally invalid construction permit, a position we have consistently taken from the beginning. Neither I nor the League want, nor will we tolerate, any unnecessary delay in the resolution of these important issues.

9. When I accepted employment with the League I did so in accordance with the Leagues directives, which are of public record and in part set forth in the contemporaneously filed Affidavit of Betty Johnson. These directives were (and are) to raise substantial meritorious issues and obtain a resolution as promptly as circumstances permit.

10. As I have indicated before, I find Conunonwealth Edison's position bizarre. Particularly is this so since if all of those persons had in truth been witnesses to the statement alleged in the Commonwealth Edison Affidavits to have occurred on September 26, 1979, I cannot comprehend why nothing was said to the Board immediately thereafter, or upon the filing of the Petition to Intervene on behalf of the League and my appearance herein, or during the ensuing eighteen-plus months. Indeed, Mr. Murphy's and the Staff's letters sent l after that 1979 meeting (see Com. Edison's Exs. 9,10) not only make no promptly, mention of any " delay threat" but bespeak an environment of cooperation among all concerned. See also Com. Edison's Ex.13 and 14 at par 3 which characterizes the September meeting as one of " extended discussion" as to " areas of ,

compromise."

, 11. Attached hereto is Mr. Michael Miller's December 2,1981 letter (received while I was on my honeymoon), and my response to him which he requested I file with the Board.

12. I believe that this Affidavit responds to the Board's general and specific inquiry concerning " delay threats" (see also 13 above), but for the sake of completeness I add that: (a) I did not tell Mr. Murphy - or anyone .else -

on September 16,1979 (or at any other time), as alleged in his Affidavit, that I would delay for 10 years, or that I would bleed Edison white, or that I had done so on any other occasion. I do recall telling Mr. Murphy at some point in September 1981 (af ter he had violated every agreement he made concerning discovery issues) that I believed him a fool and incompetent. (b) I did not state (as set forth in Tramm's Affidavit - but, interestingly, not in the Affidavits of Murphy, Bielawski, Bowen, Westermeier, Ainger and Lavin who also claint to be in attendance at that meeting) on September 10, 1981 or at any other time that my intent was "to delay Byron as long as possible."

13. I have confined this Affidavit to the general and specific " delay f ar delay's sake" charges allegedly emanating from the September 26, 1979 meeting, as that is what I understand the Board's directive to require. I must emphasize, however, that - as is already obvious from the League's Petition for Reconsideration itself - there are many other inaccuncies in Edison's response to that Petition.2 MYRON M. CHERRY SUBSCRIBED and SWORN to Before Me This ____ Day of December,1981.

Notary Public

2. The only illuminating fact from the Edison Affidavits is their consistent inability even to describe a disassociation of discovery implementation in the I.C.C. case from this proceeding, thereby in reality confirming the League's original position. See, e.g., Lavin Aff., Com. Edison Ex. 8 at 1 4.

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