ML20055B100

Responds to 820713 Request for Info.Hearing Date of 820818 Ridiculous.Aslb Must Apply ALAB-678 Std.Std Applies to Plant Operation Date,Not Fuel Loading Date.Proof of Svc Encl

ML20055B100
Person / Time
Site:	Byron
Issue date:	07/16/1982
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, LEAGUE OF WOMEN VOTERS OF ROCKFORD, IL
To:	DEKALB AREA ALLIANCE FOR RESPONSIBLE ENERGY, NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), SINNISSIPPI ALLIANCE FOR THE ENVIRONMENT (SAFE)
Shared Package
ML20055B093	List: ML20055B092 ML20055B100
References
NUDOCS 8207200359
Download: ML20055B100 (5)

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• LAW OFFICES CH ER RY & FLYN N SUITE 3700 TH R CE FIRST NATIONAL PLAZA CHICAGO, ILLIN OIS 60 6 02 u v RO N u. cw C R R v. P. c.

PET E R F LY N N P. C. {312) 372 +2000 R O S C R T F. C U S M M A N. J R *

• ADessTTto to maw vona saa oesty July 16,1982 TO COUNSEL FOR TIIE PARTIES and DAARE/ SAFE:

Re: In the Matter of Commonwealth Edison Company (Byron Station, Units 1 & 2), Dkt. Nos. 50-454, 50-455 This morning we received a copy of the July 13, 1982 Request For Information. Promptly following review of that request, the undersigned spoke with Steven C. Goldberg, Esq., representing the Staff, and informed him of our views on behalf of the Rockford League of Women Voters. Mr. Goldberg said he would be in contact with counsel for Commonwealth Edison and DAARE/ SAFE and make known to those parties the views I submitted to him in an effort to determine if the parties are in agreement. Mr. Goldberg stated he would get back to me if there was, in his judgment, a necessity for a conference call or further consultation. I am recording what I told Mr. Goldberg in this communication and because of the cut-off date of July 22,1982 (which I interpret to mean that all responses must reach the Board by that date), I am also sending a copy of this letter to the Licensing Board which will serve as the League's response to the Request For Information. To the extent that other parties agree, they can so inform the Licensing Board.

Accordingly, the League's response to the Request For Information (which was submitted to Mr. Goldberg today as set forth above) is as follows:

1. The League believes that it is silly to contemplate an August 18, 1982 hearing for at least the following reasons:

a. Insofar as the League's contentions are concerned, they have not as yet been ruled upon by the Licensing Board;

b. Subsequent to those rulings, the League is entitled to discovery, discovery which is now the subject of.a Protective Order; 8207200359 820716 PDR ADOCK 05000454 G PDR a

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July 16,1982 Page Two

c. There may be disagreements among the parties as to what discovery is producible requiring further rulings by the Board; and

d. The League's principal consultants - MIIB Technical Associates

- are still ensconced in New York in connection with the Shoreham hearings.

2. While Mr. Goldberg suggested that it may be possible to have the DAARE/ SAFE contentions heard on . August 18, 1982, this too seems inappropriate to the League for at least the following reasons:

a. The Board has as yet ruled on summary disposition motions which may be subject to a request for reconsideration by one or more of the parties;

b. The League has a right to participate in the hearing concerning DAARE/ SAFE contentions, based on Nuclear Regulatory Commission precedent, and it does not appear either practicable or equitable to force the League to participate during the month of August when the League has not had the opportunity to take discovery on its contentions or deal with the DAARE/ SAFE issues to the extent they are the subject of a hearing to which the League is a party;

c. It would not make sense for a hearing to go forward g DAARE/ SAFE, even assuming such a hearing would involve D A ARE/ SAFE contentions not similar to the League's, because the problem would arise as to whether the League could be bound by penultimate findings of fact which although relating to DAARE/ SAFE contentions may underly similar findings of facts l

j regarding one or more of the League's contentions. Since the

! League cannot be bound, without fair preparation, it would appear that a hearing without the League's participation would i

be counterproductive;

d. A hearing on D AARE/ SAFE contentions in August 1982 would deprive the licensing process of the contributions of the League and their counsel since in no event is the League, because of the process set up by ALAB-678 and other reasons set forth herein, prepared to participate in an August 1982 hearing; and l

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July 16,1982 Page Three

e. Moreover, even if the DAARE/ SAFE hearing takes place, the cutting edge of this licensing process will be the League's contentions, and the hearing cannot conclude until that is done.

Accordingly, it again makes no sense to have the DAARE/ SAFE hearing - or any hearings - in August.

3. The Licensing Board must ultimately apply the " comfortably decide" novel standard imposed by the Appeal Board in ALAB-678. The applicant in a recent motion filed with the Licensing Board has indicated that the last date by which " comfort" should be judged is August 1983, the fuel loading date.

Assuming this were the applicable date, under the nearing schedule contemplated by the Board last November with respect to over 150 contentions, it would appear that a hearing ce'ild conveniently start next spring and still meet the August 1983 date. Accordingly, there is no need to " hurry up and then wait," particularly if the licensing hearings are to provide a fair opportunity for the League's contentions to be litigated.

4. More importantly, the " comfortably decide" standard is with respect to operation of Byron - not fuel loading of Byron. Accordingly, what is now necessary is for Commonwealth Edison to set forth, supported by facts that can be tested, the date of proposed operation of the Byron plant. Based on comments made to the Illinois Commerce Commission, that date is some time in 1985,198G or later, since the Byron plant is in no event needed any earlier than that (and a strong argument is now being made by state authorities to the Illinois Commerce Commission that the Byron plant is unnecessary altogether to meet Commonwealth Edison's needs). Surely if the.1985 date were correct (that is, for operation), it is not supportable to suggest that fuel loading must occur two years before that, or in August 1983. Accordingly, the League believes that there is an abundance of time to deal with the important issues of these proceedings.

Accordingly, the League suggests the following:

(1) The Board decide the motions concerning summary disposition of DAARE/ SAFE contentions; (2) The Board decide which contentions of the League it will permit to be litigated (Commonwealth Edison has just filed a motion dealing with that subject, and the League will answer within the ten day permissible period). In addition, the Board should decide the League's pending motions on waiver on two contentions (at present and as of the writing of this report, there are no answers on file to those motions by Commonwealth Edison or the Staff, and their ten and fifteen days, respectively, is nearly up);

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July 16,1982 Page Four (3) That discovery be opened for such time as is necessary to complete discovery, with the parties reporting to the Board every 60 days (or such other time as the Board deems necessary) to determine whether the discovery process is moving forward; and (4) A prehearing conference be held in Chicago, Illinois at the conclusion of discovery (there is no way to project a date for this until the other tasks mentioned above have been attended to) to decide on a hearing process convenient to the parties and witnesses in accordance with the provisions of 10 C.F.R.

This concludes the Rockford League of Women Voters' report which, although addressed to counsel, is also being sent to the Board as prompt compliance with the July 13, 1982 Request For Information.

- Sincerely, N 1 , i o f/j l }/ h(3-0) QV Myr81 M. Che ry Coun sel for League f)

MMC /dm ec: Ms. Diane Chavez/ SAFE Dr. Bruce von Zellen/DAARE Steven C. Goldberg, Esq.

Michael I. Miller, Esq.

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PROOF OF SERVICE I

I certify that s copy of the foregoing Response was served upon all the parties of record herein, by first class mail postage prepaid and properly addressed, this 16th day of July,1982. Additionally, the original and two copies of the attached pleading were filed with the Secretary of the Nuclear Regulatory Commission, and copies were forwarded to the members of the Atomic Safety and Licensing Board.

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