ML20054L827

Memorandum & Order Denying Rockford League of Women Voters 820625 Motion to Enforce Discovery Against Util & Impose Sanctions & 820624 Motion for Discovery from Nrc.Util 820630 Motion for Protective Order Granted

ML20054L827
Person / Time
Site:	Byron
Issue date:	07/06/1982
From:	Margulies M Atomic Safety and Licensing Board Panel
To:	LEAGUE OF WOMEN VOTERS OF ROCKFORD, IL
References
ISSUANCES-OL, NUDOCS 8207080511
Download: ML20054L827 (7)

Text

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Cn'wEira UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION , ,,

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ATOMIC SAFETY AND LICENSING BOARD BEFORE ADMINISTRATIVE JUDGES Morton B. Margulies, Chairman R D Jyt 71982 Dr. Richarc F. Cole Dr. A. Dixon Callihan 4

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In the Matter of )

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Commonwealth Edison Company ) Docket Nos. 50-454-0L

) 50-455-0L (Byron Nuclear Power Station, )

Units 1 and 2) )

)

) July 6, 1982

MEMORANDUM AND ORDER i

! Intervenor, League of Women Voters of Rockford, Illinois (League) on 4

( June 24, 1982, served interrogatories upon applicant Commonwealth Edison l Company (Commonwealth Edison) seeking answers within 14 days of the filing. The League on June 25, 1982, filed a motion with the Atomic Safety and Licensing Board (Board) seeking to enforce discovery claiming f

a prospective breach of its discovery rights based upon r ceipt of a letter from Commonwealth Edison stating that the subject interrogtories i

are untimely and would not be answered unless so cedered. On June 30, 1982, applicant filed with the Board a motion that the Board enter a protective order that the discovery not be permitted.

8207080511 820706 PDR ADOCK 05000454 PDR Q

b.S & 2~

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The League, on June 24, 1982, had also filed a motion with this Board, pursuant to 10 CFR 2.718(f) and 2.720(h)(2)(ii) for the entry of an order requiring Nuclear Regulatory Commission personnel to answer interrogatories. The Nuclear Regulatory Commission Staff (Staff) by answer of July 1, 1982 opposes the request as untimely and improper.

Because the motions are based on common facts, all will be decided by this memorandum and order.

The League was admitted as an intervenor in this operating license proceeding in August 1979. The Board, by an order entered October 27, 1981, LBP-81-52, 14 NRC 901, dismissed the League from the proceeding because of not answering interrogatories and not complying with ordered discovery. A petition for reconsideration was denied, LBP-82-5, 15 NRC

. In ALAB-678, decided June 17, 1982, the Appeal Board found the failure by intervenor to comply with the Board's order to be a very serious matter injurious to the proper conduct of the NRC licensing proceeding, but that the sanction imposed was too severe (Slip op. at m

34). Believing that the League might well contribute to the proceeding "on at least a narrow group of issues" (the League had submitted 146 contentions of which 114 were admitted on December 19,1980), the Appeal Board limited the number of contentions the League could litigate "to that number the Licensing Board concludes it can comfortably decide on the merits without unjustifiably delaying operation on the Byron facility" (Slip op at 41). The Appeal Board indicated a possible figure

of fewer than 10 contentions (Slip op. at 42 n. 37). It called upon the League to " revise its broadside approach so as to concentrate on those few contentions it was prepared to advance." Intervenor was ordered to answer the interrogatories, to which it had failed to respond, no later than June 24, 1982, with the Board to strike any contention for which cn interrogatory was not fully answered. The League was to rank its contentions for the Board which was then to limit them based upon its understanding of the time needed to litigate those issues (Slip op at 42, 43, and n. 37). At the request of the intervenor, the Appeal Board granted an extension of the time to respond to the interrogatories to July 6, 1982.

The interrogatories filed by intervenor on June 24, 1982, were first served on the parties, on March 12, 1980, prior to the time there was a ruling on the admissibility of the 146 contentions to which they relate.

The initial filing was premature because it preceded the admitting of 114 contentions on December 19, 1980, which began the period for discovery. ,

By revised scheduling order of the Board, of September 9, 1981, November 1, 1981 was set as the last date for completing discovery of that matter, including the answering of interrogatories. The League never pursued any discovery from when the period for discovery commenced on December 19, 1980 to the time it was dismissed as a party on October 27, 1981, by order of the Board. Had the League sought to exercise its

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discovery rights, it would have had to have filed the interrogatories l prior to its dismissal to meet the November 1, 1981 deadline allowing the 4

recipients of the interrogatories the 14 days to answer prescribed by 10 CFR 2.740b(b). This intervenor failed to do, effectively relinquishing its right to discovery before the Board.

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, The League predicates its right to discovery on the Appeal Board decision of June 17, 1982 that readmitted it as an intervenor. The second paragraph of footnote 37 at page 42 provides:

The Board is, of course, similarly empowered to impose time limits on any discovery the League may undertake. In deciding the number of contentions the League may litigate, the Board should bear in mind the expected duration of League discovery as well as further discovery that Commonwealth Edison no doubt will undertake.

i Based on a letter from applicant's counsel dated June 25, 1982, reciting that the League's interrogatories are not timely filed and will -

not be answered, unless ordered by the Board, intervenor claims a prospective breach of its discovery rights and in its motion to enforce 4

discovery seeks the strongest sanctions available including the dismissal of the application.

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Commonwealth Edison objects to the interrogatories and seeks a protective order that discovery not be permitted because it was waived prior to the time it was initiated and that responses to such discovery prior to the time that the issues on which the League will be permitted to participate have been defined, poses an unreasonable burden on the applicant.

The Staff opposes the League's discovery request as untimely and improper. It pointed out that the discovery period on previously admitted contentions ended November 1, 1981, without the initiation of timely discovery by the League and that any discovery by the League must be directed to contentions the League seeks to litigate pursuant to the Appeal Board's direction in ALAB-678. With this we agree.

i As previously detailed, the League had not pursued discovery within the time frame set by the Board. Intervenor recognized this when it relied upon the Appeal Board decision to assert a right to discovery, more particularly footnote 37, as it did in its motion to enforce

discovery. It is abundantly clear in reading footnote 37, within the l

l context of the decision that any discovery to be authorized must relate l

l to the contentions the League may be permitted to litigate. The Appeal l

Board placed the number in the neighborhood of 10, down from the 114 i

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previously admitted, which is to be brought about by the winnowing process outlined in the decision (Slip op. at 40-44).

Intervenor in resubmitting interrogatories it had previcusly filed on March 12, 1980, relating to 146 proposed contentions, many of which were subsequently rejected, is proceeding on a course unrelated to the current posture of the proceeding. The interrogatories were inappropriate when they were filed in 1980 and even more so today, when almost one third of the proposed contentions have been dismissed or redrafted and a further major reduction in the number of contentions the League may litigate is possible. To require applicant and NRC personnel to respond to these outdated interrogatories that are unrelated to the current status of the proceeding would constitute an undue burden on the parties and be improper.

Based upon the record and for good cause shown, the requests for discovery and enforcement of discovery rights are faund to be without merit and a protective order will be entered.

Therefore, it is hereby ORDERED:

1. The motion of the League of June 25, 1982 to enforce discovery against Commonwealth Edison and to impose sanctions, is denied.

2. The motion of Commonwealth Edison of June 30, 1982, for a protective order that discovery sought by the League by interrogatories of June 24, 1982, not be had, is granted.

3. The motion of the League of June 24, 1982, for discovery from the Nuclear Regulatory Commission, is denied.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

)% h _ /)%qw W Morton B. Margulies, Chairman i ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 6th day of July, 1982.

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