ML20063G937

Response to Util Motion to Strike Certain Rockford League of Women Voters Contentions.League Does Not Waive Position That ALAB-678 Was Erroneous in Setting Limits on Discovery.Proof of Svc Encl

ML20063G937
Person / Time
Site:	Byron
Issue date:	07/26/1982
From:	Flynn P CHERRY, M.M./CHERRY, FLYNN & KANTER, LEAGUE OF WOMEN VOTERS OF ROCKFORD, IL
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8207290251
Download: ML20063G937 (7)

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In The Matter of )

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CCtKNWEAL'Ill EDISON CmPANY ) Docket Nos. 50-454 OL

) 50-455 OL (Byron Nuclear Power Station, )

Units 1 & 2) )

ROCITORD LETGJE OF PKEEN VOTERS' RESPONSE 'IO FDTIm OF CONOth.TETII EDISW CmPMW

'IO STRIIT CERTAIN CCNTENTIONS OF TIE ROCKFORD LE7GUE OF VX14EN VOTERS AND FOR OI1ER RELIEF Intervenor Rockford Icague of Wcanen Voters ("Icague"), by its attorneys, subnits this response to the Fbtion of Camonwealth Edison Ocznpany (" Edison") to strike certain contentions of the Icague and for other relief. We respond to each lettered portion of Edison's Fbtion as follows:

A. It is correct that the Icague has not answered Edison's first set of interrogatories with respect to the contentions enumerated in paragraph A of Edison's Motion. As stated in the Icague's answers, the Icague does not believe that it is fair to strike the Icague's contentions on that basis, given the extraordinary time limitations arxl difficult circumstances imposed upon the Icague by the Appeal Board in AIAB-678 with regard to preparing interrogatory answers and given the extremely limited time within which the Icague had access to its technical consultants. As stated in the League's interrogatory answers, the Icague does not waive its position that AIAB-678 was erroneous, a deprivation of the Icague's rights, and a denial of due process in that regard ~~. --

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- B. With regard to contention.ll4, Edison's point is not well taken.

A reading of contention 114 will show that the econmic and environmental costs of the cleanup of radioactive contamination buildup at Byron - which is the subject matter of that contention - are directly pertinent both to the question of Edison's financial ability properly to maintain and operate the Byron plant (the subject of the League's "FQ" Petition now pending before the Board) and to the question of whether, on a proper cost-benefit analysis, alternatives to the Byron plant are econcxnically and environmentally preferable (3ddressed in the Icague's "NFP" Petition now pending before the Board) . With respect to contention 132, Edison equally wrongly asserts that that contention "does not in fact pertain" to the need-for-power issue. A reading of that con-tention discloses that it goes directly to the cost-benefit analysis of alternative fonns of power generation and to the ccrnparison of nuclear generation with coal generation, among other things; the matters addressed in contention 132 are responsively dehlt with in the Icague's answer relating to (inter alia) contention 132 and the documents referred to in that answer. Therefore contentions 114 and 132 should not be stricken.

C. Edison's attack on the Icague's response to its interrogatories concerning contentions 34 and 39 is both inaccurate and inappropriate. It is Edison's attack, not the Icague's interrogatory answers, which consists of " unsupported argucmnts." A reading of the answers makes that clear. A reading of the answrs also makes it clear that the Icague provided the best infonnation available to the Icague at the time, in light of (among other things) the extrcmely severe constraints imposed upon the Icague by AIAB-678, the very limited access of the Ieague to its technical consultants, and the fact that the Icague had obtained no discovery information whatever frcm Edison in this proceeding. In addition, the interrrogatory answers make it clear that the Icague's investigation is continuing and that the interrogatory l

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4 answers will be suppl eented as further information bec mes available to the Icague. Nothing in the Appeal Board's instructions to the league concerning interrogatory answers requires - or could require - that the Imague provide information not available to the Ieague at the time the answers were required to be filed. 'Ib strike contentions 34 and 39 on the ground that the Icague's investigation is not yet ccmplete would be manifestly unfair and inappropriate under the circumstances of this case.

D. The reference to contention 29 in the league's interrogatory answer concerning contention 109 is a typographical error; the reference should have been to contention 39. This disposes of the first part of Edison's argument concerning contention 109. 'Ihe balance of Edison's argument concerning contention 109 is not well taken. The Imague provided such information as was available to the Icague - in light of, we repeat, the extrme and severe constraints imposed by AIAB-678 and the very limited access of the league

! to its technical consultants - at the time the interrogatory answers were required to be filed. Again, it would be singularly unfair and inappropriate to strike any part of contention 109 merely because, as stated.in the League's responses concerning contentions 8, 39, 62, 47, 71 and 106 (incorporated in its response concerning contention 109), the Icague's investigation is still continuing. Ihh, Edison's interrogatory called for a " concise statment" of the basis for contention 109. In addition to the material contained in the Inague's response concerning the other contentions just l mentioned - incorporated by reference into its response concerning I

contention 109 - the Icague specifically and concisely pointed out that the Byron FES reveals on its face that the deficiencies referred to in subparts (f), (g), and (h) of contention 109 continue to exist

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. g E. The Icague notes that the August 31, 1983 fuel loading date stated by Edison is hedged, by terming it Edison's "present estimate." The Ieague notes that Edison has made numerous other estimates in the past, all of which have subsequently proved inaccurate and have been postponed for reasons having nothing to do with the Icague. Further, the League notes its concern that to condition the litigability of valid contentions raised by the Icague upon not interfering with the Byron fuel loading date is seriously to prejudice the adjudicative process and the proper examination of safety issues. The proper course is to condition the Byron fuel loading date upon the prior resolution of all applicable safety issues - not to sweep safety issues under the rug or refuse to deal with them becau they might interfere with the utility's plans.

F. Under the cmpulsion of AIAB-678 (and as previously stated herein and in its answers to interrogatories, without waiving its objections to the procedure established by that decision), the Icague has, in essence, already "prioritized" its contentions by subnitting interrogatory answers concerning less than all of the contentions. Particularly under present circumstances. the Icague does not interpret AIAB-678 as requiring the league to go further (or, in particular, to attmpt the virtually impossible task of assigning a meaningful numerical ranking to its rm aining contentions or issues), at least at this juncture. At present- the league is still hampered by the absence of meaningful discovery frcm Edison, by the presence in the FES of manifold unresolved issues the ultimate resolution of which may or may not have a bearing on the ultimate importance of given contentions or issues, and by the incomplete nature of the league's own investigation (including the extrmely limited access which the Icague has had to its r

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technical research personnel). Under those ciretrnstances, to require the Icague to assign a numerical ranking to its renaining issues or contentions

- a ranking which would of necessity be at least partially arbitrary, given the factors just noted -- would in effect require the Icague to play a guessing game with safety issues. We do not interpret either AIAB-678.

or the Ccmnission's rules as requiring such a procedure. Nor are we aware of any reason, in law or in camon sense, why the League should assign a low (or any other) priority to any given issue on the sole basis of whether or not that issue has also been raised by scme other party. (To the extent that anything at all can be gleaned frcm the mere fact that more than one party raises the same issue, that fact would seen to suggest the importance of the issue rather than the reverse.) If the Board chooses to require the Icague to assign a numerical ranking to its renaining issues - which, we repeat, the Icague believes would be both prenature and unhelpful at this point, as wall as not fairly required by AIAB-678 - the Icague will do so to i the best of its ability pranptly after being notified of the imposition of that requirement. Similarly, it may be that at a later stage - e_.g., after significant discovery has been had and the status of unresolved FES issues is better known, and after the Icague has had an opportunity to consult at greater length with its technical consultants - same meaningful ranking of the Icague's renaining issues can be undertaken. However, for the ,

l reasons stated above the Icague strongly believes that such an I

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s exercise at this stage would be~ neither productive nor appropriate (though, the Imague reiterates, it will prmptly comply with 'any order requiring it to attempt a further ranking at this' stage) . ,

Respectfully subraitted, Rockford Icague of Wcnen Voters

, Ven! w OneofitsAttorpeys Myron M. Cherry 1 Peter Flynn Cherry & Flynn Three First National Plaza Suite 3700 Chicago, Illinois 60602 (312) 372-2100 l

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PROOP OF SERVICE 00y{'

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.r128 I certify that a copy of the foregoing docume;n?t was P1 upon served :1I all the parties of record herein, by first class mail g,ggid.{and nRA properly addressed, this 26th day of July, 1982. Additionally,ucFthe original and tuo copies of the attached pleading were filed with the Secretary of the Nuclear Regulatory Cmmission, and copies were forwarded =to the members of the Atanic Safety and Licensing Board.

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