ML20081G738

Response Opposing Intervenor 831018 Motion for Discovery on 840215 Fuel Load Date.Discovery Irrelevant to Proceeding Issues & Based on Faulty & Unsupported Premise.Certificate of Svc Encl

ML20081G738
Person / Time
Site:	Byron
Issue date:	11/02/1983
From:	Bielawski A COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8311070167
Download: ML20081G738 (5)

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UNITED STATES OF AMERICA DgMf7ED NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSIN B D CFFICE OF SECRiTri. f DOCHETING & SEgy:;p' In The Matter of "

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COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-454 OL

) 50-455.0L

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(Byron Nuclear Power Station, )

Units 1 & 2) )

COMMONWEALTH EDISON COMPANY'S RESPONSE TO INTERVENORS' MOTION FOR DISCOVERY ON FUEL LOAD DATE On October 18, 1983, the Rockford League of Women Voters and DAARE/ SAFE ("Intervenors") filed a motion seeking permission from the Board to conduct discovery against the NRC Staff and Commonwealth Edison Company (" Edison") per-taining to the achievability of the February 15, 1984 fuel load date currently scheduled for Byron Unit 1. The dis-covery sought by Intervenors pertains to matters which are not relevant to the issues in this proceeding. In addition, Intervenors' purported need to conduct the discovery is based upon a faulty and unsupported premise. For these reasons, Edison respectfully requests that the motion be denied.

ARGUMENT The Commission's Rules of Practice, specifically 0311070167 831102 PDR ADOCK 05000454 O PDR

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10 CFR S2.740(b), set forth the scope of discovery permitted in NRC adjudicatory proceedings. In pertinent part, that section provides:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pro-ceeding, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party ... .

In a proceeding or an application for a con-struction permit or an operating license for a production or utilization facility dis-covery ... shall relate only to those matters which have been identified by the commission or the presiding officer in the prehearing order entered at the conclusion of [the] pre-hearing conference.

Clearly, the achievability of Edison's current estimated fuel load date is neither an issue in this proceeding, nor is it relevant to any issues under adjudication. Thus, Intervenor's motion can only be viewed as an attempt to conduct discovery which is beyond the scope of discovery permitted by the Commission's Rules of' Practice. For this reason alone, the motion should appropriately.be denied.

In addition, Intervenors' motion appears to con-stitute an unsupported attack on the integrity of the Commission's adjudicatory process. Intervenors assert that their requested discovery is necessary "to avoid potentially undue pressure on the Board in its resolution'of issues in this proceeding." They go on to suggest'that such pressure is'likely to be caused by the fact that hearings on OA/QC

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issues continued past the date contemplated for conclusion of the hearings and because additional information relating to QA/QC issues is likely to surface between now and the scheduled fuel load date. The unstated premise underlying Intervenors' request is that the Board may resolve the issues in favor of licensing Byron Unit 1, or may refuse to consider some unidentified further issue because of the date scheduled for loading fuel. Obviously, such a premise cannot serve as a basis for authorizing the discovery sought by Intervenors.

WHEREFORE, Commonwealth Edison Company respect-fully requests that Intervenors' motion be denied.

Respectfully submitted, M-

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Alan P. Bielawski One of the Attorneys for Commonwealth Edison' Company.

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DATED: November 2, 1983 l

l ISHAM, LINCOLN & BEALE Three First National Plaza l Suite 5200 l Chicago, Illinois 60602 l

(312) 558-7500 I

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CERTIFICATE OF SERVICE I, Gayle Ivy, a non-attorney, on oath states that on this date I 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: November 2, 1983 C@Ig Gayle Ivy SUBSCRIBED AND SWORN to before me this 2nd day of November , 1983.

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

• • Mr. Ivan W. Smith

• Secretary Administrative Judge and Chairman Attn: Chief, Docketing and l Atomic Safety and Licensing Service Section Board Panel U.S. Nuclear Regulatory Commission Room 428 Washington, D.C. 20555 East West / West Towers Bldg.

4350 East West Highway **Ms. Betty Johnson Bethesda, MD 20114 1907 Stratford Lane Rockford, Illinois 61107

• • Dr. Richard F. Cole Atomic Safety and Licensing ** Ms. Diane Chavez Board Panel SAFE U.S. Nuclear Regulatory Commission 326 North Avon Street Washington, D.C. 20555 Rockford, Illinois 61103 Atomic Safety and Licensing ** Dr. Bruce von Zellen Board Panel Department of Biological Sciences U.S. Nuclear Regulatory Commission Northern Illinois University Washington, D.C. 20555 DeKalb, Illinois 60115

• Chief Hearing Counsel ** Joseph Gallo, Esq.

Office of the Executive Isham, Lincoln & Beale Legal Director Suite 840 U.S. Nuclear Regulatory Commission 1120 Connecticut Ave., N.W.

Washington, D.C. 20555 Washington, D.C. 20036 i

Dr. A Dixon Callihan *** Douglass W. Cassel, Jr, Union Carbide Corporation Jane Whicher l P.O. Box Y BPI Oak Ridge, Tennessee 37830 Suite 1300 109 N. Dearborn

• • Mr. Steven C. Goldberg Chicago, IL 60602 Ms. Mitzi A. Young Office of the Executive Legal Director

• • Ms. Patricia Morrison 5568 Thunderidge Drive '

U.S. Nuclear Regulatory Commission Rockford, Illinois 61107 l Washington, D.C. 20555 l

• *** Mr. David Thomas Atomic Safety and Licensing 77 South Wacker i Appeal Board Panel Chicago, IL 60621

! U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

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! Via U.S. Mail

• • Via Express Mail

• • • Via Messenger i

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