ML20079P717

Answers to Del-Aware Unlimited 840111 Motion for Reconsideration or Certification of ASLB 840103 Order Denying Request to Bar Participation of Applicant Counsel. Motion Should Be Denied.Certificate of Svc Encl

ML20079P717
Person / Time
Site:	Limerick
Issue date:	01/25/1984
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8401310320
Download: ML20079P717 (8)

Text

4 00CMETED USNRC

'84 JM 30 A10 57 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

Before the Atomic Safety and Licensing Board' ,,,;[~'

In the Matter of )

)

Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

APPLICANT'S ANSWER TO DEL-AWARE UNLIMITED'S MOTION FOR RECONSIDERATION OR CERTIFICATION OF THE BOARD'S ORDER OF JANUARY 3, 1984 By motion dated January 11, 1984, counsel for Del-Aware Unlimited, Inc., (" Del-Aware") requested that the Atomic Safety and Licensing Board (" Licensing Board" or " Board")

reconsider or certify its " Memorandum and Ord,er Denying Requests to Bar Participation of Counsel for Applicant"

(" Order") of January 3, 1984.

That Order stated at pages 2-3 that [rlequests for

. . . disqualification of an attorney to participate in the proceeding should be well conceived and supported by the movants, lest the requests have the effects (presumably unintended) of unnecessarily and improperly sullying the professional reputation of the subject attorney or, on the other hand, of putting into question - the seriousness and purity of purpose of the movants." Notwithstanding the Board's explicit admonition, Del-Aware and its counsel insist on pursuing. an argument which is frivolous and K O h $2 4 03

v patently an attempt to harass Applicant by attacking its counsel without any basis for doing so.

The Board previously stated that unjustified requests to disqualify counsel may reflect adversely on the " serious-ness and purity" of the moving party. In light of Del-Aware's renewed attack, equally unwarranted as the initial request, one is led ineluctably to conclude that the position taken by Del-Aware appears to violate the ethical constraints imposed by the Code of Professional Responsibil-ity on Del-Aware's counsel. Specifically, Del-Aware's repeated and totally unsupported assertions that Mrs.

Laverty or the firm of Conner & Wetterhahn, P.C., should be disqualified appear to violate the proscriptions in Disci-plinary Rules 7-102 ( A) (1) and (2) against asserting a position which will serve merely to harass or - maliciously injure another and against knowingly advancing a claim that is unwarranted under existing law.

f Even if the Board were to treat Del-Aware's motion seriously, it should be denied for the following additional reasons.

1. The request fails to state any grounds whatsoever which would provide a basis for disqualifying Mrs. Laverty t

or the firm of Conner & Wetterhahn, P.C., from the proceed-4 ing or any portion thereof.- Tne request is unsupported by an affidavit attesting to facts which would warrant disqual-ification and Del-Aware has therefore failed to meet its affirmative burden of proof that disqualification is

-. . . - ~ . .- ._. . .. ... .. -

l required. In seeking reconsideration, Del-Aware asserts nothing new or different from that which was known to the Licensing Board at the time it initially denied the request for disqualification. Del-Aware simply asserts, with no legal authority cited, that "the Board, as an administrative body, has the responsibility to look into these matters on its own . . .

" 1

2. Del-Aware evidently does not understand the dispos-itive significance of the formal opinion rendered by the General Counsel and the subsequent dismissal of this matter by the Appeal Board, nor the respective roles of the General Counsel and the Commission's adjudicatory boards. Essen-tially, the rules under 10 C.F.R. 50.735.27 specify that only the General Counsel is authorized to offer an interpre-tation of the NRC's conflict of interest ru,les.2/ In response to an Appeal Board request for such an opinion, Mr.

Martin G. Malsch, the NRC Acting General Counsel, reviewed each instance of Mrs. Laverty's involvement in matters relating to Limerick and concluded that Mrs. Laverty's limited involvement did not provide a basis for her disqual-ification. Thus, contrary to Del-Aware's unsupported

-1/ Del-Aware's Motion to Reconsider or to Certify at 2 (January 11, 1984).

~2/ As noted in the Acting General Counsel's memorandum, Deputy Counselors are authorized under 10 C.F.R.

0.735-3(h) to provide such interpretations.

assertion, the Acting General Counsel's opinion covers-not only the proceeding before the Appeal Board but the proceed-ing before the Licensing Board as well. The Appeal Board did not modify the General Counsel's opinion in any way.

, Rather, it applied the opinion, quite properly, only to the

! proceeding before it.

3. The relief sought by Mr. Sugarman - public disclo-sure of every instance of Mrs. Laverty's involvement in a matter either part of the Limerick proceeding or merely related to the Limerick facility is patently frivolous inasmuch as such information has already been provided in both Mrs. Laverty's letters to the Appeal Board and in the 1

General Counsel's opinion.

4. Del-Aware participated in the proceeding before the Licensing Board only with regard to matters related to the ,

supplementary cooling water system for Limerick. Del-Aware filed exceptions to the Licensing Board's Partial Initial Decision on March 8, 1983.b The Partial Initial Decision, in combination with the Licensing Board's rulings rejecting Del-Aware's requests to litigate additional supplementary cooling water system contentions, resulted in the completion of the Board's consideration of all issues advanced by i

Del-Aware and in the termination of Del-Aware's

-3/ Philadelphia Electric Company (Limerick Generating.

Station, Units 1 and 2), LBP-83-11, 17 NRC 413 (1983).

l w +- .-g e. -- , - y-

t participation before the Board. Limerick, supra,

" Memorandum and Order -

Denying Petitions of Del-Aware for Reconsideration and to Admit a Late-filed Contention, (March 8, 1983) at 11. Since then, only the Appeal Board has had jurisdiction over those issues.4/

5. Del-Aware lacks standing to assert on behalf of other parties before the Licensing Board on other con-tentions that Mrs. Laverty or the firm should be disqual-ified since it can establish no " injury-in-fact" from the disposition of other contentions remaining in the proceed-ing.5_/

6. Del-Aware has failed to discuss any basis for certifying the matter to the Commission pursuant to 10 C.F.R. S2. 718 (i) .

Accordingly, the motion should be denied.

Respectfully submitted, CONNER & WETTERHAHN, P.C.

)

~. 'ls y-_.  ; f,'[,>2it; '

(. . v/

Troy B. Conner, Jr.

Counsel ~for the Applicant January 25, 1984

~4/ See Limerick, supra, ALAB-726, 17 NRC 755 (1983);

Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), ALAB-699, 16 NRC-1324-(1982).

-5/ See, e.g., Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), AL.'iB- 413 , 5 NRC 1418,

, 1421 (1977).

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1

t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION in the Matter of )

)

Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

i CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Answer to Del-Aware Unlimited's Motion for Reconsideration or Certifi-cation of the Board's Order of January 3, 1984," dated January 25, 1984 in the captioned matter, have been served upon the following by deposit in the United States mail this 26th day of January, 1984:

Lawrence Brenner, Esq. (2) Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Docketing and Service Section Dr. Richard F. Cole Atomic Office of the Secretary Safety and Licensing U.S. Nuclear Regulatory Board Commission i U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Ann P. Hodgdon, Esq.

Counsel for NRC Staff Dr. Peter A. Morris Atomic Office of the Executive Safety and Licensing Legal Director Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

s Atomic Safety and Licensing Steven P. Hershey, Esq.

Board Panel Community Legal U.S. Nuclear Regulatory Services, Inc.

Commission Law Center West North Washington, D.C. 20555 5219 Chestnut Street Philadelphia, PA 19139 Philadelphia Electric Company ATTN: Edward G. Bauer, Jr. Angus Love, Esq.

Vice President & 107 East Main Street General Counsel Norristown, PA 19401 2301 Market Street Philadelphia, PA 19101 Mr. Joseph H. White, III 15 Ardmore Avenue Mr. Frank R. Romano Ardmore, PA 19003 61 Forest Avenue Ambler, Pennsylvania 19002 Robert J. Sugarman, Esq.

Sugarman & Denworth Suite Mr. Robert L. Anthony 510 North American Building Friends of the Earth of 121 South Broad Street the Delaware Valley Philadelphia, PA 19107 106 Vernon Lane, Box 186 Moylan, Pennsylvania 19065 Director, Pennsylvania Emergency Management Agency Mr. Marvin I. Lewis Basement, Transportation 6504 Bradford Terrace and 1lnfety Building Philadelphia, PA 19149 Harri; burg, PA 17120 Phyllis Zitzer, Esq. Martha W. Bush, Esq.

Limerick Ecology Action Kathryn S. Lewis, Esq.

P.O. Box 761 City of Philadelphia 762 Queen Street Municipal Services Bldg.

Pottstown, PA 19464 15th and JFK Blvd.

Philadelphia, PA 19107 Charles W. Elliott, Esq.

Brose and Postwistilo Spence W. Perry, Esq.

1101 Building ilth & Associate General Counsel Northampton Streets Federal Emergency Easton, PA 18042 Management Agency 500 C Street, S.W., Rm. 840 Zori G. Ferkin, Esq. Washington, DC 20472 Assistant Counsel Commonwealth of Pennsylvania Thomas Gerusky, Director Governor's Energy Council Bureau of Radiation 1625 N. Front Street Protection Harrisburg, PA 17102 Department of Environmental Resources 5th Floor, Fulton Bank Bldg.

Third and Locust Streets Harrisburg, PA 17120 l l

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y Jay M. Gutierrez, Esq.

U.S. Nuclear Regulatory Commission

! Region I 631 Park Avenue King of Prussia, PA 19406 James Wiggins Senior Resident Inspector U.S. Nuclear Regulatory Commission .

P.O. Box 47 Sanatoga, PA 19464 i

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Robert M. Rader 0

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