ML19208C589
| ML19208C589 | |
| Person / Time | |
|---|---|
| Issue date: | 08/14/1979 |
| From: | Kennedy R NRC COMMISSION (OCM) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML19208C579 | List: |
| References | |
| PROJECT-564M NUDOCS 7909270109 | |
| Download: ML19208C589 (2) | |
Text
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l August 14, 1979
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OFFICE OF THE
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Memorandum for S'ar 81 J. Chilk
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g Sectr.tary Richard T. Kennedyj9h From:
Re:
SECY-A-79-59 -- ALAB-550 (IH THE MATTER OF PACIFIC GAS &
I agree fully with the Appeal Board's resolution of the first and second of the three issues of which Southern California Edison Cornpany
(" Edison") seeks review, namely the authority of the Licensing Scard to issue a subpoena'to a ncn-party and the relevance /burdensomeness of that subpoena.
However, I believe there are significant questions raised --
both as a matter of law and equity -- by the Appeal Scard's determination that Edison (a non-party to this antitrust proceeding) cust foot the bill for over $100,000 in search costs incurred in complying wi2 a subpoena issued at the behest of the California Department of Water
-Resources ("0WR").
I would, therefore, have c.ccepted review of tne tnird of the three questions brought before us.
In denying Edison's request that any subpoena issued against it be-conditi:ned upcn reicbursenent to it by DWR of search costs, the Tcpeal Board relied upon cases in shich the Courts were asked to reimb:rse search costs incurred by non-parties responding to requests arising out of IP.S or FTC investigations of possible statutory violations.
As the Court in one of the cases cited by the Appeal Scard (in footnote 26) noted, IRS investigations are similar to Grand Jury investigatiens in that they are granted broad pcwers and any costs incurred in cc=olying witr. investigatory requests are not normally reimbursed.
See U.S.
v.
Covingten Trust & Sanking Co. 431. F. Supp 352 (E.D. Ky.1977).
'The distinction between those cases and the ene at bar is evident-The Stanislaus case involves a licensing proceeding and is, essentially, a contest between private parties.
The costs were not incurred in the course of a govern =ent investigation of possible statutory violations by the applicant, let alene by Edison..The party seeking the doctr=ents,,
is an agency of the State of California, (and a party to the Stanislaus proceeding) and is certainly as capable of paying the sear-h costs as is Edison, which has no direct interest in the Stanislaus plant.
7909270lg 1049 353
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2-Finally, the standard used by the Appeal Board offers little ghidance to ifcensing boards or parties and, in my view, embodies a standard so broad as to be all-inclusive.
I would have preferred that the Commission itself detemine the appropriate standard to be applied for reimbursement when non-parties incur substantial search costs as a result of subpoenas arising out of NRC proceedings.
At the very least, as a matter of equity, a non-party should at be required to absorb substantial search costs when the party seeking the documents is equally capable of reimbursement.
- / For example, in U.S. v. Famers & Merchants Bank, 397 F. Supp 418 (C.D. Cal. 1975) the court explicitly addressed the question of the appropriate test for reimbursement of compliance costr to non-parties.
The Court defined a cost of doing business as one pred.tably part of the business, one which falls upon all equally, and one which was specifically evaluated by the legislature and imposed by it upon those engaged in a given business. While this case also arose in the context of an IRS investigative summons there is i
little reason to believe that a standard less protective of non-parties should be imposed where the party seeking the documents is capable of reimbursing costs and is not a governmental entity which is charged by Congress with enforcing the governing statutory regime.
b_
cc:. Chainnan Hendrie Commissioner Gilinsky Commissioner Bradford Commissionar Ahearne L. Bickwit, CGC e
9 1049 354
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