ML20062H766

Objection to Dekalb Area Alliance for Responsible Energy/ Sinnissippi Alliance for Environ 820730 Motion to Suppl Answer to Applicant & NRC Motions for Summary Disposition of Alliance Contentions 2 & 2A.W/Certificate of Svc

ML20062H766
Person / Time
Site:	Byron
Issue date:	08/10/1982
From:	Bielawski A COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8208160159
Download: ML20062H766 (6)

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u.1 i l SYRh UNITED STATES OF AMERICA NUCLEAR REGUIATORY COMMISSION ff jgj 3 All:09 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Srg In The Matter of )

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COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-454 OL

) 50-455 OL

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(Byron Nuclear Power Station, )

Units 1 & 2) )

APPLICANT'S OBJECTION TO DAARE/ SAFE'S MOTION TO SUPPLEMENT AND MOTION TO STRIKE THE AFFIDAVIT OF DR. E. J. STERNGLASS On July 30, 1982, Intervenor DAARE/ SAFE filed a motion to supplement its answer to Commonwealth Edison Company's (" Edison") and the NRC Staff's motions for summary disposition of DAARE/ SAFE's contentions 2 and 2a. Attached to DAARE/ SAFE's motion is a four-page affidavit of a Dr.

Ernest J. Sternglass, and a ten-page article published in 1980. For the reasons stated below, Edison objects to this motion to supplement, and moves that the affidavit of Dr.

Sternglass be stricken.

Edison and the Staff filed their respective motions for summary disposition of contentions 2 and 2a on July 15,

'1982, as required by the Board's " Revised Schedule" of September 9, 1981. Under the " Revised Schedule", DAARE/ SAFE's 8208160139 820810 PDR ADOCK 050004S4 G PDR D % ),

c response to these motions was due June 28, 1982. To accomodate DAARE/ SAFE, this date was extended to July 15, 1982.-*/ DAARE/ SAFE filed its answer to the pending summary disposition matters on that date.

Now, approximately two weeks after the date on which its answer was due, DAARE/ SAFE seeks to supplement its earlier response. DAARE/ SAFE asserts that its tardiness should be excused on the grounds that the information offered was previously unavailable to DAARE/ SAFE, and has only recently become available to the scientific community.

It is manifestly clear, on the face of the motion to supplement, that the information in question is not new.

The article attached to his affidavit was published in 1980.

Dr. Sternglass also refers to an article written by an M.A.

Chacon and a J.A. Tildon, published in The Journal of Pediatrics in November, 1981. This article is now nine months old. Quite obviously, the information presented in Dr. Sternglass' affidavit was available long before the date by which DAARE/ SAFE was required to answer the pending motions for summary disposition. The fact that DAARE/ SAFE l

may not have taken adequate steps to gather the information and submit it in a timely manner should not be deemed good i

l cause for its late filing.

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• / See " Order", dated May 26, 1982 at p.4.

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r Moreover, as a matter of fairness, DAARE/ SAFE's motion should be denied. Earlier in the proceedings, DAARE/

SAFE had been requested to identify its potential witnesses and the subject matter on which the witnesses were expected to testify.-*/ In respect to this request, DAARE/ SAFE eventually identified Dr. K.Z. Morgan as its witness on health effects of radiation matters. Dr. Morgan was deposed and Edison formulated its motion for summary disposition with respect to health effects contentions based in part upon the statements made by Dr. Morgan during the course of his deposition. Dr. Sternglass had never been identified as a potential witness during the course of discovery. Indeed, Edison became aware of DAARE/ SAFE's intent to sponsor Dr.

Sternglass as an expert witness in this proceeding for the first time upon receipt of DAARE/ SAFE's motion to supple-ment. As a result, Edison has been precluded from inquiring into the bases underlying Dr. Sternglass' assertions, and '

from responding to these assertions in the context of summary disposition motions. In short, it is simply unfair to surprise Edison with a new witness and new material at this late date.

WHEREFORE, Commonwealth Edison Company respectfully requests that DAARE/ SAFE i..otion to supplement be denied, and

• / See " Commonwealth Edison Company's First Round of Interrogatories To Be Answered by DAARE and SAFE",

dated July 8, 1981.

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that the Affidavit of Dr. Sternglass be stricken.

Respectfully submitted,

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C----

One bf th(LWttdrneys for A b.- i Commonwealth Edison Company DATED: August 10, 1982 Michael I. Miller f Alan P. Bielawski ISHAM, LINCOLN & BEALE Three First National Plaza Chicago, IL 60602 (312) 558-7500 ,,

Joseph Gallo ISHAM, LINCOLN & BEALE 1120 Connecticut Ave., J.W. '

Suite 840 '

Washington, D.C. 20036 (202) 833-9730 i

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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.

Date: August 10, 1982 -,

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/ Alan 26-Bidlawski i l

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1 SERVICE LIST COMMONWEALTH EDISON COMPANY -- Byron Station Docket Nos. 50-454 and 50-455 J

• • Morton B. Margulies, Esq.

• Atomic Safety and Licensing Administrative Judge and Chairman Appeal ~ Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Secretary Attn: Chief, Docketing and

• • Dr. Richard F. Cole Service Section Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 *Ms. Betty Johnson 1907 Stratford Lane

• • • Myron M. Cherry, Esq. Rockford, Illinois 61107 Cherry & Flynn Three First National Plaza **Ms. Diane Chavez Suite 3700 SAFE Chicago, Illinois 60602 608 Rome Ave.

Rockford, Illinois 61107

• Atomic Safety and Licensing Board Panel

• Dr. Bruce von Zellen U.S. Nuclear Regulatory Commission Department of Biological Sciences Washington, D.C. 20555 Northern Illinois University DeKalb, Illinois 60115

• Chief Hearing Counsel Office of the Executive

• Joseph Gallo, Esq.

Legal Director Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission Suite 840 Washington, D.C. 20555 1120 Connecticut Ave., N.W.

Washington, D.C. 20036

• Dr. A Dixon Callihan Union Carbide Corporation * *

• Douglass W. Cassel, Jr.

P.O. Box Y Jane Whicher Oak Ridge, Tennessee 37830 BPI Suite 1300

• • Mr. Steven C. Goldberg 109 N. Dearborn Ms. Mitzi A. Young Chicago, IL 60602 Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Via U.S. Mail

• • Via Express Mail

• • • Via Messenger

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