ML20055B433
| ML20055B433 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 07/20/1982 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8207220265 | |
| Download: ML20055B433 (8) | |
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7/20/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIS! ION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of COMMONWEALTH EDISON COMPANY Docket Nos. 50-454 50-455 (ByronStation, Units 1and2)
NRC STAFF RESPONSE TO ROCKFORD LEAGUE OF WOMEN V0TERS MOTION FOR PROTECTIVE ORDER I.
INTRODUCTION On July 3, 1982, the Rockford League of Women Voters (League) filed a motion for a protective order staying the Applicant's second round of discovery upon the League initiated in October 1981 and the Staff's first round of discovery upon the League initiated in September and October 1981.
Both the Applicant and Staff have reminded the League of its responsibility to respond to these outstanding requests by separate letters, dated June 23 and June 30, 1982, respectively.
The League seeks a further protective order to prevent its future litigation of certain unspecified contentions from being adversely affected by a presumably unfavorable ruling on the Applicant's motion for summary disposition of DAARE/ SAFE contentions 1/ until the Bcard rules on those contentions the League will be permitted to litigate and a l
1/
The League's motion does not refer to the pending staff summary disposition motion of DAARE/ SAFE contentions either deliberately or through inadvertance. However, since the requested relief could affect the Licensing Board's deliberations on the Staff's summary disposition motion, the Staff has provided its reasons for opposing such relief.
1 DESIG!IATED ORIGI genomma c.,t.m, PDR related hearing schedule is established.
In this latter connection, the League recommends that a prehearing conference be convened to further this process and identifies certain periods of time in July and August when it will be unavailable to attend such a prehearing conference.
For the reasons which follow, the Staff interposes no objection to a suspension of the time to respond to pending Staff discovery until the litigable League contentions are fonnally identified. The Staff opposes the request to forestall a timely and dispositive Board ruling on the pending summary disposition motions regarding DAARE/ SAFE contentions.
II. ARGUMENT A.
Discovery Suspension The League seeks to suspend its obligation to respond to outstanding Staff discovery until the Licensing Board decides which of the League's contentions will be litigated pursuant to the Appeal Board's direction in its June 17, 1982 Decision (ALAB-678). Given the distinct probability that the Lugue will not be permitted to litigate the approxitately forty i
contentions for which it supplied discovery responses on July 6,1982, l
l this would appear to be a reasonable and prudent request. As indicated in the above-referenced June 30, 1982 letter to the League, the Staff 1
l only expected discovery responses regarding those contentions the League l
intended to pursue in accordance with the dictates of ALAB-678.
Leaving aside the sufficiency of the League's July 6 interrogatory 2
responses, I both the number and nature of the contentions addressed l
2/
This is a matter more appropriately left for the Applicant to address in light of the applicable Appeal Board criteria.
ALAB-678 (Slip op. at 43).
-See l
w I.
by the League in its interrogatory responses display a misapprehension of the latitude afforded the League's future participation in ALAB-678.
First, the number of contentions addressed would appear to exceed that number which the Board can " comfortably adjudicate" without t:njustifiably delaying planned Byron operation consistent with the Appeal Board directive in ALAB-678 (Slip op. at 41). The Appeal Board observed that this may prove to be fewer than ten contentions and directed the League to prioritize and reformulate its present contentions with a view toward arriving at a reasonable number (51,ip op. at 42). The League has not prioritized the approximately forty contentions for which interrogatory answers are given in its July 6 filing. The balance of the League's 114 previous contentions for which no discovery information is provided are to be stricken under the terms of the Appeal Board decision (Slip op. at 43).
Beyond this, in a petition filed on July 6, 1982, the League attempts to resurrect nine proposed contentions regarding need for power and alternative energy sources dismissed in the Board's original December 19, 1980 ruling on contentions and barred from consideration by Commission regulation.3/ This is tantamount to an unjustifiably late request for reconsideration of the referenced ruling or an unauthorized request to advance new contentions in the proceeding. The Appeal Board did not afford the League such a prerogative nor does thr ~ N yce's petition on need for power and alternative energy content N.
ct 'rwise address the factors in 10 CFR % 2.714(a)(3) governing li..e ow. cents to intervention petitions.
Hence, there is no justification for treating these proposed contentions 3f 10 CFR ll 51.23(e) and 51.53(c); See 47 F.R.12940 (M(rch 11,1982).
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as matters in controversy in the case. The League's further intention to litigate six previously admitted contentions regarding financial qualiilcations (as set forth in a July 6,1982 petition by the League requesting that financial qualification issues be considered in this proceeding) is similarly barred by yet another regulation.Sl Each of these matters makes the status of those contentions the League will be permitted to litigate uncertain at this time. Since discovery directed to League contentions which will not ultimately be litigated will be of limited value, the Staff does not object to a reasonable deferral-of the League's responses to Staff discovery until a deternination has been made as to which contentions the League will be permitted to litigate.
B.
Deferral of Summary Disposition The second protective order sought in the instant motion is apparently designed to prevent a grant of summary disposition of any DAARE/ SAFE contention to which a surviving League contention may eventually relate. Motion at 3.
The League does not identify any particular contentions which fall within this category. While some League coitentions still being pursued may bear some relevance to certain DAARE/ SAFE contentions, this does not appear to be true for the majority of the " remaining" League contentions. League contentions 1A (quality assurance), 19 (emergency planning), and 22 (steam generator 4/
10 CFR ll 50.33(f)(1) and 50.57(a)(4); See 47 F.R. 13750 (March 31, 1980). By Order of April 15, 1982, this Board previously dismissed the DAARE/ SAFE contention on financial qualifications upon motion of the Staff.
.. tube integrity), are notable possible exceptions. Nonetheless, if the League believes its ability to litigate certain issues in the proceeding could be jeopardized by a sumary decision on certain DAARE/ SAFE contentions, it should file a substantive response to the parties' sumary disposition motions with respect thereto.
The League was conditionally readmitted as a party on June 17. The Staff and Applicant sumary disposition motions were filed on June 4 and 6, respectively. Responses to sumary disposition are due on July 15.
A timely ruling on sumary disposition is essential to permit the August 18 hearing on DAARE/ SAFE contentions to proceed on schedule on an orderly basis. Consideration of the DAARE/ SAFE contentions is in its latter prehearing stage. The League is obligated to take the proceeding as it finds it pursuant to ALAB-678. The League cannot seek to introduce contentions identical to those DAARE/ SAFE contentions for which sumary disposition is warranted without O monstrating, at a minimum, the existence of a genuine issue of material fact with respect thereto. The League has not made any such showing nor is it apparent that it intends to.
It is too late in the process to defeat sumary disposition of one l
i party's contentions upon mere allegations of counsel for another party that a matter somehow merits adjudication. See 10 CFR % 2.749(b). Any other course would improperly permit the League to unjustly benefit from j
the delay it has caused in the proceeding in contravention of ALAB-678 (Slip op. at 2). Accordingly, the Staff opposes the League's request that the Licensing Board defer or delay its decision on the sumary disposition motions which are directed to the contentions of DAARE/ SAFE.
C.
Prehearing Conference Request Lastly, the League requests a prehearing conference to discuss the litigability of its contentions, and a prehearing and hearing schedule thereon. The Staff believes that such a need may exist following the responsive pleadings regarding the present motion and separate petitions for waiv of Comm' sion regulations on the consideration of need for power, alternative energy sources and financial qualifications in op': rating license proceedings. A prehearing conference is now scheduled to immediately precede the August 18 hearing session on DAARE/ SAFE contentions. A prehearing conference much before that time would appear to be impractical in view of the time needed to respond to the League's two waiver petitions and other prehearing responsibilities, including a July 15 response to summary disposition motions and July 28 submission of testimony. Nonetheless, if ctherwise deemed desirable, the Staff is prepared to participate in an earlier prehearing conference. NRC Staff Counsel's only unavailability is during the first week of August, a time when it appears counsel for the League is similarly unavailable. See l
Motion at 4 n.2.
l l
III. CONCLUSION For the foregoing reasons, the NRC Staff interposes no objection to the League's motion for a protective order to suspend outstanding staff discovery upon the League until a Board ruling on the litigability of the League's remaining contentions. The Staff opposes any protective order that would prevent a timely and dispositive ruling on pending l
motions for summary disposition of DAARE/ SAFE contentions. The Staff is prepared to participate in a prehearing conference to consider any and all issues raised by the League's participation in the proceeding at a time which is mutually convenient for the Board and parties.
Respectfully submitted, N
Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda, Maryland this 20th day of July, 1982.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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COMMONWEALTH EDIS0N COMPANY Docket Nos. 50-454
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50-455 (Byron Station, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO ROCKFORD LEAGUE OF WOMEN V0TERS MOTION FOR PROTECTIVE ORDER" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 20th day of July, 1982:
- Morton B. Margulies, Chairman Mrs. Phillip B. Johnson Administrative Judge 1907 Stratford Lane Atomic Safety and Licensing Board Rockford, Illinois 61107 U.S. Nuclear Regulatory Commission Washington, DC 20555 Ms. Diane Chavez 608 Rome Avenue Dr. A Dixon Callihan Rockford, Illinois 61107 Administrative Judge Union Carbide Corporation Dr. Bruce von Zellen l
P.O. Box Y c/o DAARE Oak Ridge, Tennessee 37830 P.O. Box 261 DeKalb, Illinois 60015
- Dr. Richard F. Cole Administrative Judge
- Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 205E' Washington, DC 20555
- Atomic Safety and Licensing Appeal Paul M. Murphy, Esq.
Board Panel Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission Three First National Plaza Washington, DC 20555 Chicago, Illinois 60602
- Docketing and Service Section Myron M. Cherry, Esq.
Office of the Secretary of the Commission Cherry & Flynn U.S. Nuclear Regulatory Commission Suite 3700 Washington, DC 20555 l
Three First National Plaza l
Chicago, Illinois 60602 Region III U.S. Nuclear Regulatory Commission Office of Inspection & Enforcement
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3gQ l
799 Roosevelt Road Steven C. Goldberg -
Glen Ellyn, Illinois 60137 Counsel for NRC Staff