ML20039C248

Affidavit of Mm Cherry Per ASLB 811208 Order Re 790926 Meeting.Affidavit Never Implied or Stated That Position in Case Was for Purposes of Delay

ML20039C248
Person / Time
Site:	Byron
Issue date:	12/21/1981
From:	Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER, LEAGUE OF WOMEN VOTERS OF ROCKFORD, IL
To:
Shared Package
ML20039C244	List: ML20039C243 ML20039C248 ML20039C249 ML20039C253
References
ISSUANCES-OL, NUDOCS 8112290115
Download: ML20039C248 (8)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Marshall E. Miller, Chairman Dr. Richard F. Cole Dr. Dixon Callihan ,

In the Matter of ) Docket Nos. 50-454-O L

) 50-455-O L COMMONWEALTII EDISON COMPANY )

)

(Byron Station, Units 1 & 2) )

STATE OF ILLINOIS )

) SS.

COUNTY OF COOK )

AFFIDAVIT OF MYRON M. CHERRY AS DIRECTED BY BOARD ORDER OF DECEMBER 8,1981 MYRON M. CHERRY, being first duly sworn, on oath states as follows:

1. I am counsel to the Rockford League of Women Voters (" League")

in this proceeding, as well as in two related proceedings (one now on appeal before the Seventh Circuit Court of Appeals and one pending before the Illinois Commerce Commission), of both of which the Board has knowledge. I have personal knowledge of the matters stated herein.

2. As appears in the Board's Order of December 8,1981 (at page 2),

the Board is requesting affidavits with respect to the allegation that League counsel announced, even before he was counsel to the League, that his only purpose in representing the League was for delay's sake.

3. At no time in connection with the Byron Plant, whether at the September 26, 1979 meeting referred to or otherwise, have I ever stated, referred, allegea, alluded to or implied that my posture or position as counsel in this (or any other) proceeding would be for purposes of delay.

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4. At the time of the September 26, 1979 meeting ("hereafter September meeting") I had not as yet agreed to represent the League in J

connection with Byron, but I had agreed, as a courtesy to Ralph Nader, to sit in f on a meeting regarding the intention of the League - then unrepresented - to -

1 i 4 amend its contentions as permitted by an earlier Board Order. At the September meeting the question of whether, and (if so) when, I would enter an appearance for the League arose - principally, I believe, at the request of Commonwealth ,

i Edison counsel. I explained to all concerned that I was (as I had earlier advised t the League) not entirely persuaded that I should represent the League in its opposition to the Byron Plant before the Nuclear Regulatory Commission. My concerns (which are and have been on record in numerous other forums, including the Congress of the United States) were that the Nuclear Regulatory Commission (and earlier the AEC) had displayed a generally hostile posture toward intervenors t raising safety and environmental issues in hearings and, therefore, if that climate continued, then an intervention by the League might accomplish nothing and  ;

might be u waste of time and resources.I I did, however, state to those 8 assembled that there were other considerations involved in my decision as to i whether I would accept the Byron assignment. Essentially these considerations I

' concerned the status of unresolved safety problems, both generally and as applied to Byron.

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i 1. I might add that I am not alone in these views - critical of past NRC-AEC credibility. Such views have also been expressed by the Kemeny Commission reporting to the President on TMI; the Nuclear Regulatory Commission review concerning TMI (NUREG/CR 1250); Commissioner Bradford in his October 19, 19 81 .

speech before the Eastern Association of Attorneys General (NRC Press Release l S-3-81, Tuesday October 27, 1981); and, as recently as December 15,1981, by the l Chairman of the Commission as quoted on page 1 of the New York Times on that t

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date.

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5. I explained at the September meeting that in my view, if (i) the Nuclear Regulatory Commission could be forced to directly confront the essentially insupportable position of conceding the existence of a whole host of unresolved safety problems while nonetheless continuing to license plants; and (ii) a decision could be issued by the Commission (or by a court of law upon judicial review) to halt licensing of nuclear power plants until unresolved problems were resolved (rather than merely studied); and (iii) such a review could be imposed (as I believed it should since I believe it to be required by law) upon re-examination of construction permits issued without regard to the resolution of unresolved safety problems (such as the Byron permits) - then by definition the cost of nuclear power would dramatically increase to the real cost of including all adequate and necessary safety and environmental requirements. 'Ihis additional cost (and perhaps also the time necessary to implement safety resolutions) would create an even further economic burden on nuclear power and might be a sufficient precedent to pravent utilities in the future from considering the ,

nuclear option because, when viewed with all its real costs, it is and would be demonstrated to be uneconomical. This analysis, while involving increased costs and perhaps delayed (or prevented) operation of unsuitable plants is nothing more than an explication ot' a fair cost-benefit analysis in assessing the nuclear option

- something which has concerned us for some time. (See, e_.g., the EIS regarding the ECCS Rulemaking before the AEC.)

6. I further stated at the September meeting that as an intellectual matter, the issues addressed in paragraph 5 appealed to me because the Commission had admitted to the existence of hundreds of unresolved safety problems and would ultimately find it difficult to avoid the resultant confrontation in licensing. Therefore the overall issue thus presented could be considered crisp, and also legal (as opposed to purely factual), since the

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Commission has also conceded that it has no real resolution for the outstanding safety problems. I further informed the participants that this issue had intrigued me for some time but that I had not decided whether to represent the League given my view (based upon considerable experience in AEC-NRC proceedings) that Licensing Board hearings typically did not deal fairly with serious safety issues -

a view which the NRC's own Special Inquiry Group, several months later, bluntly expressed by terming hearings "a sham" insofar as any genuine, open-minded i

consideration of safety issues is concerned.

7. Ultimately, because of the legal challenge and public interest benefits these issues presented, I accepted the assignment from the League.

Thereafter I concentrated my efforts on the unresolved safety problems and the

- economic cost and timing of fairly implementing them, as well as on other ,

important specific issues re?ating to Byron. Contrary to Edison's suggestions of delay, it was I, and the Leaeve who asked Director Denton for a prompt hearing I

under 10 C.F.R. sec. 2.206 and 2.202 with respect to those issues (moving also in tandem before the Illinois Commerce Commission on similar and related matters).

The Director's response was to wait some six months before he decided our Petition, a matter now on appeal after several further months of Commission- ,

caused delay in deciding whether to review the Director's decision internally. In parallel, although somewhat earlier, I and the League filed a documented and ,

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detailed Petition to Intervene before this Board which was admitted in substantial part; and I and the League promptly moved to initiate discovery against the Staff I

and Commonwealth Edison. Our discovery requests today still remain unanswered; and as noted in our Petition for Reconsideration, the Board's overall deliberations with respect to the Petition to Intervene occupied the Board for 18 months (March 1980 to August 1981).

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8. I believe that if the Nuclear Regulatory Commission fairly meets the unresolved safety issues in a hearing, then the League will be able to demonstrate that the Byron Plant does not meet existing regulations and that an operating license should g be issued, let alone construction continued pursuant to what I believe is a legally ' invalid construction permit, a position we have consistently taken from the beginning. Neither I nor the League want, nor will we tolerate, any unnecessary delay in the resolution of these important issues.

9. When I accepted employment with the League I did so in accordance with the Leagues directives, which are of public record and in part set forth in the contemporaneously filed Affidavit of Betty Johnson. These directives were (and are) to raise substantial meritorious issues and obtain a resolution as promptly as circumstances permit.

10. As I have indicated before, I find Commonwealth Edison's position bizarre. Particularly is this so since if all of those persons had in truth been witnesses to the statement alleged in the Commonwealth Edison Affidavits to have occurred on September 26, 1979, I cannot comprehend why nothing was said to the Board immediately thereafter, or upon the filing of the Petition to Intervene on behalf of the League and my appearance herein, or during the ensuing eighteen-plus months. Indeed, Mr. Murphy's and the Staff's letters sent promptiv after that 1979 meeting (see Com. Edison's Exs. 9,10) not only make no mention of any " delay threat" but bespeak an environment of cooperation among all concerned. See also Com. Edison's Ex.13 and 14 at par 3 which characterizes the September meeting as one of " extended discussion" as to " areas of compromise."

11. Attached hereto is Mr. Michael Miller's December 2,1981 letter (received while I was on my honeymoon), and my response to him which he requested I file with the Board.

12. I believe that this Affidavit responds to the Board's general and specific inquiry concerning " delay threats" (see also 1 3 above), but for the sake of completeness I add that: (a) I did not tell Mr. Murphy - or anyone else -

on September 16,1979 (or at any other time), as alleged in his Affidavit, that I would delay for 10 years, or that I would bleed Edison white, or that I had done so on any other occasion. I do recall telling Mr. Murphy at some point in September 1981 (af ter he had violated every agreement he made concerning discovery issues) that I believed him a fool and incompetent. (b) I did not state (as set forth in Tramm's Affidavit - but, interestingly, not in the Affidavits of Murphy, Bielawski, Bowen, Westermeier, Ainger and Lavin who also claim to be in attendance at that meeting) on September 10, 1981 or at any other time that my intent was "to delay Byron as long as possible."

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13. I have confined this Affidavit to the general and specific " delay for delay's sake" charges allegedly emanating from the September 26, 1979 meeting, as that is what I understand the Board's directive to require. I must emphasize, however, that - as is already obvious from the League's Petition for Reconsideration itself - there are many other inaccuracles in Edison's response to that Petition.2

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.WYR M . O ll Elf R Y V '

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SUBSCRIBED and SW

,;BeforeOte f This gj Day s c of December,1981.

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'il D. Notary Publicg

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2. The only illuminating fact from the Edison Affidavits is their consistent inability even to describe a disassociation of discovery implementation in the I.C.C. case from this proceeding, thereby in reality confirming the League's original position. See, e.g., Lavin Aff., Com. Edison Ex. 8 at 1 4.

(j ISHAM. LINCOLN & BEALE COUNSELORS AT LAW ONC FIRST N ATIONAL PLAZ A FORTT SECOND FLOOR CHICAGO, lLLINOIS 60603 TELEPHONC 312 558 7500 TELEX:2 5288

' waSMINGTQ86 OFFICC H2O CONNECTICUT AvtNut.N w.

Suif t 325 WAS Mt NG TON. O. C. 2 0 0 36

,' 202 833-9730 December 2, 1981 Myron A. Cherry, Esq.

Cherry & Flynn One IBM Plaza - Room 4501 Chicago, Illinois 60611 In the Matter of

• Commonwealth Edison Company

' (Byron Station, Units 1 and 2)

Docket Nos. 50-454, 50-455

Dear Mike:

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In your letter of November 25 to the Licensing Board concerning the Byron' Station operating license pro-ceeding, you refer to an asserted offer of settlement which you " considered a bribe". My recollection of the events of that day are quite distinct. I made no offer of settlement to you or to the League of Women Voters, rather, I asked you on what basis the League might consider settlement.

I most assuredly did not offer you any sum of money which you might construe as a " bribe" or otherwise. Indeed, my recollecticn of our conversation that day is that you were the only person who used the term " bribe".

Your persistent mischaracterization of that con-versation is yet another example of your inability or un-willingness to be candid and truthful in your dealings with the Licensing Board and counsel for Commonwealth Edison Company. I request that you acknowledge that your charac-l terization of this conversation has been false and that you do so in writing, with copies to the Licensing Board.

Yours truly, b

MIM:es Michael I. Miller cc Service List l

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- EXHIBIT A _

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hL,PE 00 'IO AFFIDAVIT OF MYPG M. CB2RY pmn

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LAW OFFICCS ,

C H E' R R Y? % F LY N N ONEISM PLAZA ,

C HICAGO, ilk.INOIS 6 0611

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• tasal ses-H77 Decerrber.21,'1981 ,

! Michael I. Miller, Esq. -

Isham, Lincoln & Beale ,

One First National'Pla::a t Suite 4200 Chicago, Illirois 60603 Pc: In the Matter of Ocmonwealth Edison Ccrpany

' (Byron Station, Uhits 1 & 2), Dkt. Nos. 50-454, 50-455

Dear Mr. Miller:

Your letter of De W r 2, 1981 arrived in my absence. I do not deviate one iota fran my earlier statcrants. You will recall that when you raised the question of settlement you and your clients were steadfastly opirscd to discussing anything short of paying (and overpaying) the Icague's legal fees in this case, looking at the Icague's participation in this impor8 ant proceeding as a " cost of doing business" by Ca:rorrmalth FAieon rather than a sincere attengt to work out the serious and meritorious problens raised by the Icague.

l I am very disturbed by the ranner and method by which your law firm has proceeded in this case, as I would have hoped that your firm's j perfon-ance in the Midlard case (which has already been spread of record before the Nuclear Pagulatory Ocnmission) would not be duplicated herein.

Suffice it to say that our long friendship and my prior respect for you as a professional (based in part on our having attendcd law school 4

together) has now been impaired by your fim's performance.

I have always found it possible in the past to speak with you on

, ratters when your young lawyers have acted foolishly or arbitrarily. Thus, you would have done well to bring sone reason and rationality herein, ard

- I am sorry that you have not had the consciousness to do so.

I am sending a copy of this response to the Licensing Board since you have expressly requested me to do so in your letter of

. Decc-ber 2,1981.

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. - EXHIBIT B -

'IO AFFIDAVIT OF MYIG M. CHERRY

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' Micluel I. Miller, Esq.

Decarber 21, 1981 Page 'No l

' hhile I am reluctant to once again solicit cooperation a: tong counsel, ycu mald do well to heed my prior requests to have the matter of these serious Byron safety and other issues pra:ptly litigated. You (and Edison) nust realize that the questions surrounding Byron will not sinply disappear, and your client - a regulated utility - must give way to the public interest.

Yours very truly, Myron M. Cherry nt/dm cc: Service List I

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