ML20054K478
| ML20054K478 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 06/29/1982 |
| From: | Murphy P COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8207020238 | |
| Download: ML20054K478 (11) | |
Text
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9o RELATED CORRESPONDENCB UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 77
_1 71*
ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
COMMONWEALTH EDISON COMPANY
)
Docket Nos. 50-454
)
50-455 (Byron Nuclear Power Station,
)
Units 1 and 2)
)
)
OBJECTIONS TO THE ROCKFORD LEAGUE OF WOMEN VOTERS FIRST INTERROGATORIES AND MOTION FOR PROTECTIVE ORDER AND OPPOSITION TO THE LEAGUE'S MOTION TO ENFORCE DISCOVERY Commonwealth Edison Company
(" Applicant") objects the the " League of Women Voters of Rockford, Illinois, First Interrogatories to Commonwealth Edison Company" served by messenger on June 24, 1982, in the above cause and moves the Licensing Board to enter a protective order pursuant to 10 CFR S2. 740 (c) (1) that disco'very not be had.
As grounds for this motion Applicant states that the Rockford League of i
Women Voters'
(" League " ) interrogatcries are untimely and, in any event, inappropriate.
Applicant opposes the " Motion of the Rockford League of Women Voters to Enforce Discovery" of June 25, 1982, on the grounds given for its objections to discovery, and on the further grounds that the League's request for sanctions is clearly inappropriate as the time to respond or object to the requested discovery has not expired.
l 820702O238 820629 DR ADOCK 05000 hf (j
ARGUMENT On October 27, 1981 the Licensing Board dismissed the League from this proceeding and struck all of the League's contentions.
(See LPB-81-52, 14 NRC 901 (1981)).
In ALAB-678, dated June 17, 1982, the Appeal Board reversed and remanded the Licensing Board's determination to impose on the League the most severe sanction for the League's fail-ing.
However, as stated by the Appeal Board:
"In ordering reinstatement, we take various steps to insure that the League does not benefit from the delay it has caused in this proceeding."
(Slip opinion, p.
2.)
While the Appeal Board did not specify all conditions on the League's further participation in this proceeding, the above-quoted language and the entire tenor of ALAB-678 make clear that the Appeal Board did not intend to extend to the League rights the League did not have at the time of its dismissal.
l The Licensing Board set November 1, 1981 as the i
"Last Date for Completion of Discovery Pending Under Order i
Entered August 18, 1981, Including Answers to Interrogatories, Production of Documents and Depositions" in its " Revised I
Scheduling Order" of September 9, 1981.
As of the date of i
its dismissal, the League had not initiated any discovery subsequent to the commencement of discovery in this pro-ceeding.
The revised schedule obviously did not permit the initiation of voluminous discovery four days before the time.
1
at which all discovery was to have been completed.
Even before the League was dismissed from this proceeding, it had clearly contemplated that discovery which the League could have initiated but for its dismissal, subsequently reversed, should still be permitted subject to stringent time limi-tations.
(See ALAB-678, Slip opinion, p.
42, note 37.)
All discovery permitted after November 1, 1981, was limited to discovery regarding the Staff documents (i. e., DES, FES, SER and SSER) or regarding new contentions admitted based on l'
information first available in the Staff documents.
The League's first interrogatories clearly do not fall in that category.
They were drafted by the League and served on Applicant even prior to the date on which the League's original revised contentions were admitted as issues in controversy.
If the League is permitted to acquire rights of discovery which it had waived prior to its dismissal, it will have benefited from the delay it has caused to this proceeding contrary to the intent of the Appeal Board.
l Even if ALAB-678 could be interpreted as expanding i
the League's rights to discovery beyond those existing at j
the time of its dismissal, it would clearly be unreasonable to require that Applicant respond to discovery on all 114 of i
the League's revised contentions.
The Appeal Board has in-structed the Licensing Board to severely limit at an early i
time the contentions it will permit the League to litigate
! i
in this proceeding and has further instructed that the League revise its broadside approach so as to concentrate on those few contentions it is best prepared to advance.
(Slip
- opinion,
- p. 41-42.)
In order to aid in the selection of those contentions the League is best prepared to advance, the League was instructed to rank its contentions individually.
(Slip opinion, p.
42, note 37.)
These provisions were designed by the Appeal Board in order that "the Applicant should not be penalized by that wrongful conduct (of the League]."
(Slip opinion, p. 40.)
Clearly, Applicant will be penalized if it is forced to respond to broad discovery requests regarding 114 contentions when only something on the order of ten contentions can be expected to remain in issue.
On the date on which these objections to the League's discovery were prepared, the League filed a motion of the League to enforce discovery to which it attached a letter from Michael I. Miller, attorney for Applicant, to Myron M.
Cherry, attorney for the League.
The request for the imposition of sanctions is patently frivolous.
Applicant cannot be censured for posing valid objections to untimely discovery.
Moreover, the League is now pursuing a course of action which can only serve to delay this proceeding if countenanced by the Board.
Attached hereto as Exhibit A is the letter of Mr.
Cherry dated June 23, 1982, referred to in the first line of the letter to Mr. Miller previously supplied by the League.
In the postscript to that letter, Mr. Cherry implies strongly that the League has no intention of prioritizing its con-tentions or otherwise cooperating with the Licensing Board and the parties to limit the contentions as required by ALAB-678.
The League should not be permitted under any circumstances to obtain discovery from any party to this proceeding with respect to issues, ninety (90%) percent of which will likely be dismissed, and at the same time be permitted to stall the efforts to appropriately define issues.
WHEREFORE, Commonwealth Edison Company objects to the Rockford League of Women Voters First Interrogatories to Commonwealth Edison Company and moves the Licensing Board l
to enter a protective order that the discovery not be per-mitted on the grounds that the discovery requested had been l
waived prior to the time at which it was initiated and that responses to such discovery prior to the time that the I
issues on which the League will be permitted to participate j
i 1
have been defined poses an unreasonable burden on Applicant.
I Dated:
June 29,-1982.
Respe ful subm' ted,
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One of the attorneys /fod Applicant, 4
Commonwealth Edison Company I S IIA M, LINCOLN & BEALE Three First National Plaza Chicago, Illinois 60602 (312) 558-7500 I
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LAW OFFICES CHERRY & F LY N N SUITE 3700 TH REE FIRST NATIONAL PLA2 A CHICAGO. ILLINOIS So6o2 m v ROM w. CH E R R v, p c.
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(3s2) 372-280 0 R O t E R T F. C U S M M A N, J R. *
. A o-.rre o to...,o..... oa" June 23, 1982 Michael I. Miller Isham, Lincoln & Beale One First National Plaza 42nd Floor Chicago, Illinois 60603 Re:
Rockford League of Women Voters v.
Commonwealth Edison Company
Dear Mr. Miller:
In reviewing our files and our obligations under ALAB 678, I noticed Commonwealth Edison's second set of interrogatories served upon the League of Women Voters in the nuclear case. As you know, those interrogatories demanded answers (or presumably the filing of objections) by November 1, 1981.
By that date, however, the League, pursuant to your motion, had been removed from the proceedings, and therefore the League was not in a position to answer or object to the interrogatories.
ALAB's 678 and the recent extension granted by the Appeal Board to which you made no objection require the League to answer your first round of interrogatories, but then sets up an additional mechanism whereby the Licensing Board would thereafter rule under a variety of standards whether the contentions of the League, notwithstanding answers to the first set of interrogatories, will ever be litigated.
It is our position that in view of these events your second set of interrogatories is untimely since the League at this juncture does not know which contentions will be litigated.
EXHIBIT A
e 5
Michael I.. Miller, Esq.
June 2 3, 1982 Page Two Pursuant to the August, 1981 order requiring discussion prior to seeking relief from the Board, we hereby solicit your opinion on this matter so that we need not file for a protective order.
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Sinc rely, O
N'M.Cher
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MMC /cc P. S.
After dictating this letter, I received Mr. Murphy's letter asking if we were in a position to answer the second set by July 6.
Under the current time restraints, that is impossible, particularly since NHB is available to us on a restricted basis because of their Shoreham involvement.
But another and perhaps overriding issue is the one raised by this letter - 1. e - we will not know which contentions we may press (not-withstanding our July 6 answers to the first set) until the Licensing Board " concludes (which ones] it can comfortably decide on the merits without unjustifyingly delaying operation" of Byron.
ALAB-678, at
- p. 41.
There fore, please let me have your views, so that any impasse can be tendered (perhaps jointly) to the Board. One thought occurs. Would Commonwealth waive the benefit of the Appeal Board's " comfortably decide" standard and so move the Licensing Board? If so, the League might know much earlier which of its contentions were at issue regarding the second set of interrogstories, and then we could focus on a reasonable date for answering or objecting.
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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 the same on each of the persons at the addresses shown on the attached service list in the manner indicated below.
Date:
June 29, 1982 1
tv y
By Messenger:
Morton B. Margulies, Esq.
Dr. Richard F.
Cole Mr. Steven Goldberg Myron Cherry, Esq.
By Express Mail:
Ms. Betty Johnson Ms. Diane Chavez Dr. Bruce Von Zellen All other parties were served by First Class Mail.
t
Morton B.
Margulies, Esq.
Dr. A.
Dixon Callihan Administrative Judge and Chairman Union Carbide Corporation Atomic Safety and Licensing P.O.
Box Y Board Panel Oak Ridge, Tennessee 37830 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Richard F.
Cole Mr. Steven C.
Goldberg Atomic Safety and Licensing Ms. Mitzi A.
Young Board 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 Cherry, Flynn & Kanter Appeal Board Panel Three First National Plaza U.S. Nuclear Regulatory Commission Suite 3700 Washington, D.C.
20555 Chicago, Illinois 60602 Atomic Safety and Licensing Secretary Attn:
Chief, Docketing and Board Panel U.S. Nuclear Regulatory Commission Service Section Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 l
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Chief Hearing Counsel Ms. Betty Johnson Office of the Executive 1907 Stratford Lane Legal Director Rockford, Illinois 61107 l
U.S. Nuclear Regulatory Commission l
Washington, D.C.
20555 l
Ms. Diane Chavez Dr. Bruce von Zellen SAFE Department of Biological Sciences 602 Oak Northern Illinois University Rockford, Illinois 61104 DeKalb, Illinois 60115 i
l Joseph Gallo, Esq.
s Isham, Lincoln & Beale i
Suite 840 1120 Connecticut Ave. NW Washington, D.C.
20036 l
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